Jmrn

1992

COMMISSION DECISIONS
06-03-92
06-09-92
06-16-92
06-25-92
06-29-92

ASARCO, Inc.
Consolidation Coal Company
United States Steel Mining Company
Southern Ohio Coal Company
Contests of Respirable Dust Samples

SE
89-·24-RM
WEVA 90-3
WEVA 91··73
WEVA 90-141
No. 91-1

Pg.
Pg.
Pg.
Pg.
Pg.

941
956
973
978
987

COMMISSION ORDERS
06-23-92

Gatliff Coal Company, Inc.

Pg. 1013

ADMINISTRATIVE LAW JUDGE DECISIONS
06-05-92
06-09-92
06-17-92
06-17·-92
06-17-92
06-17-92
06-18-92
06-22-92
06-22-92
06···23-92
06-23-92
06-23-92
06-23-92
06-·23-92
06-24-92
06-26-92
06-29-92
06-29-·92
06-29-92
06-30-92

R & N Coal Company
Capricorn Coal Company~ Inc.
Raymond D. Sheets v. Koch Carbon, Inc.
Hills Materials Company
Doris Coal Company, Inc.
Roy Farmer on behalf of other miners v.
Island Creek Coal Company
Mar-Land Industrial Contractor, Inc.
Ramblin Coal Company, Inc.
VP-5 Mining Company
Stoneway Concrete
Stoneway Concrete
Deatley Company
Klamath Pacific Corporation
Darbet Incorporated
Marvin David Warren v. Webster County Coal
Hansel John Saffell v. National Cement Co.
Texas Industries, Inc.
Peabody Coal Company
Richard Allen Plaster v. Falcon Coal Corp.
Mid-Continent Resources, Inc.

PENN 91--1320
KENT 91-1028
VA
92·-5-D
CENT 91-149-M
VA
91-·571
VA
92-59-C
SE
90-117-·M
KENT 90-429
VA
92-112-R
WEST 91-640-M
WEST 91-444-M
WEST 91-5
WEST 91-515-M
WEVA 91-1659
KENT 91-1036-D
WEST 90-l 7lf-DM
CENT 92-78-M
KENT 91-1417
VA
91·-449-D
WEST 91-168-H

Pg. 1015
Pg. 1017

Pg. 1018
. 1019
Pg. 1021
Pg. 1022

Pg. 1023
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

Pg.
Pg.
Pg.
Pg.

.
Pg.
Pg.

1025
1033
1043
1045
104 7
1049
1051
1052
1053
1068
1074
1079
1085

ADMBISTRATIVE LAW JUDGE ORDERS
06-04-92
06--05-92
06-12-92
06-18-92
06-24-92
06--30-92

Contests of Respirable Dust Samples
Donald L. Giacomo emp. by Wyoming Fuel Co.
Contest of Respirable Dust Samples
Contest of Respirable Dust Samples
Contest of Respirable Dust Samples
Contest of Respirable Dust Samples

91·-l
No
WEST 92-100
No.
91--1
No.
91-1
No.
91-1
No.
91-1

1087
Pg. 1091
Pg. 1098

1104
Pg. 1110

Pg. 1112

JUNE 1992

REVIEW WAS GRANTED IN THE FOLLOWING CASE DURING THE MONTH OF JUNE:
Secretary of Labor, MSHA v. Steele Branch Mining Company, Docket No.
WEVA 91-2077, WEVA 91-2123. (Judge Weisberger, Hay 19, 1992)
Secretary of Labor, MSHA v. Gatliff Coal Company, Docket No.
(Chief Judge Merlin, Default Decision, Hay 20, 1992)

KE~T

91-1084.

REVIEW WAS DENIED IN THE FOLLOWING CASE DURING THE MONTH OF JUNE:
Thomas Mucho v. Beth Energy Mines, Inc., Docket Nos. PENN 91-1382-D,
PENN 81-1558-D. (Judge Koutras, May 5, 1992)

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW. 6TH FLOOR
WASHINGTON, D.C. 20006

June 3, 1992

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. SE 89-24-RM
SE 89-25-RM
SE 89-26-RM
SE 89-37-RM
SE 89-60-M
SE 89-105-M
SE 89-108-M

v.

ASARCO, INC.
BEFORE:

Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 810 et seq. (1988)(the
"Mine Act" or "Act"). It involves the validity of four citations issued at
Asarco, Inc.'s ("Asarco") Immel Mine, two alleging violations of 30 C.F.R.
§ 57.3401 for failing to examine and test for loose ground and two alleging
violations of 30 C.F.R. § 57.3200 for failing to correct hazardous ground
conditions. 1 Two citations were issued as a result of an investigation of a
1

The regulations are as follows:
§ 57.3401

Examination of ground conditions.

Persons experienced in examining and testing for
loose ground shall be designated by the mine operator.
Appropriate supervisors or other designated persons
shall examine and, where applicable, test ground
conditions in areas where work is to be performed, prior
to work commencing, after blasting, and as ground
conditions warrant during the work shift. Underground
haulageways and travelways and surface area highwalls
and banks adjoining travelways shall be examined weekly
or more often if changing ground conditions warrant.
§ 57.3200

Correction of Hazardous conditions.

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

941

fatal accident and the other two citations were issued during the accident
investigation, but do not allege that the violations contributed to the
accident.
Administrative Law Judge William Fauver affirmed the four citations and
concluded that the violations were the result of Asarco's highly negligent
conduct.
Asarco. Inc., 12 FMSHRC 2073 (October 1990)(ALJ). 2 The Commission
granted Asarco's petition for discretionary review and heard oral argument on
February 20, 1992.
For the reasons set forth below, we affirm the judge's conclusion that
Asarco violated section 57.3401 with respect to one citation and his related
finding that Asarco was highly negligent. We reverse his findings of
violation with respect to the other three citations.
I.

Factual and Procedural Background
Asarco operates the Immel Mine, an underground zinc mine located in Knox
County, Tennessee.
The zinc is removed by the selective open stope method. 3
This method involves drilling blast holes into the ore body and blasting the
drilled area, and then removing the ore.
George Norton, a jumbo drill operator and the accident victim, was
assigned to drill blast holes in the heading of the 2C3 stope the morning of
October 24, 1988.
Carlyle Bales, his foreman, transported Norton, Richard
Hubbard, and two other miners to their respective work areas. At about
7:25 a.m., Bales arrived with Norton and the others at the heading of the 2C3
stope, which was about 47 feet wide and 18 feet high.
Bales testified that he
conducted a visual examination of the area and found no cracks, discoloration,
loose ground, or fallen material on the floor.
Tr. 1203-04, 1214-15, 1225-26.
During the course of his examination, Bales walked to the wall of the heading.
Hubbard confirmed that Bales examined the work area that morning and that the
ground looked good.
Tr. 237, 312.
Bales then travelled back down the 2C3
stope and dropped Norton off to pick up the jumbo drill, so that Norton could
take it back to the heading of the 2C3 stope.
Bales took the other three
miners to their work areas.

with a warning against entry and, when left unattended,
a barrier shall be installed to impede unauthorized
entry.
2

The judge also dismissed two citations alleging violations of 30 C.F.R.

§ 57.3202 requiring the use of a scaling bar where manual scaling is performed.

The Secretary did not seek review of these dismissals.
3

"Stope" is defined as "[a]n excavation from which ore has been excavated
in a series of steps. . . . The term is also applied to breaking ground by drilling
and blasting or other methods." Bureau of Mines, U.S. Department of Interior,
A Dictionary of Mining, Mineral and Related Terms 1081-82 (1968) ("DMMRT").

942

A jwnbo drill operator drills holes in the face, rib, or back, to be
filled with explosives and blasted. Norton was a veteran miner and drill
operator with over 25 years of experience. He generally worked alone.
At about 10:50 a.m., Bales returned to the heading of the 2C3 stope and
visited Norton for 20 to 25 minutes while Norton ate lunch.
Bales testified
that he saw no signs of loose ground. 4 Tr. 1205-07. About 12:10 p.rn.,
Richard Abdella, a haul man, serviced Norton's jumbo drill. Abdella testified
that he observed no loose ground and did not hear any ground "working." Tr.
988-99. At about 12:25 p.m., Bales again visited Norton to bring water
gaskets needed for drilling.
Bales testified that he again looked at the
ground in the area and found nothing wrong.
Tr. 1208-10.
John Ellis, Jr., the general mine foreman, found Norton at about 1:25
p.m., crushed under a slab that had fallen from the mine roof about seven feet
to the right and rear of the jumbo drill and outside the drill's protective
canopy. Norton died of the injuries sustained. The drill had been shut down
and the drill steel was found in holes that were the last or next to last row
scheduled to be drilled in the face .... of the heading.
The ground failure extended from the right rib to the area above the
jumbo drill, a distance of about 22 feet wide and 38 feet high.
The fallen
rock increased in thickness from less than an inch at the right rib to about
two feet near the drill.
The rock had been exposed to two blasting cycles,
the last on the day shift of October 20, 1988. Norton's work area had not
been roof bolted.
Mine Safety and Health Administration ("MSHA") Inspector Charles
McDaniel arrived at the mine about 2:15 p.m. on the day of the accident. He
went to the accident site to secure the area and issued a section 103(k) order
(30 U.S.C. § 813(k)) to preserve it until MSHA's investigative team arrived.
Inspector McDaniel saw chewing tobacco on fallen ground on the left side
of the jumbo drill, which indicated to him that Norton had scaled the area. 5
He also saw evidence that Norton had scaled the roof to the right of the jumbo
drill near the face.
McDaniel testified that Norton had scaled and probably
thought the area was safe. Tr. 1363, 1366. However, McDaniel did observe
loose ground in the area.
He also saw several drill marks, including some
near the fall site. McDaniel saw evidence that the ground fall had included a

4

The term "loose ground" is defined as "[b]roken, fragmented, or loosely
cemented bedrock material that tends to slough.... As used by miners, rock that
must be barred down to make an underground workplace safe .... " DMMRT at 658.
In Amax Chemical Company, 8 FMSHRC 1146, 1148 (August 1986), the Commission
interpreted the term "loose ground" to refer "generally to material in the roof
(back), face, or ribs that is not rigidly fastened or securely attached and thus
presents some danger of falling."
5

The term "scaling" is defined as the "[r]emoval of loose rocks from the
roof or walls."
at 965.

943

bel
from the roof or back. He testified that drill marks near the fall
site indicated that Norton had tried to get the belly down but was
unsuccessful. Tr. 1354-55, 1363-64. Inspector McDaniel concluded that the
ground fall that killed Norton was unpredictable. Tr. 1363, 1366, 1373.
On the day after the accident, MSHA Supervisory Mine Inspector Vernon
Denton and MSHA Mine Inspector William Erickson, the lead investigator,
visited the mine to investigate the fatality. Erickson issued Citation No.
3253415 that same day, charging Asarco with a violation of section 57.3401 for
its failure to examine and test for loose ground in the 2C3 stope prior to the
accident. Denton modified the citation on December 8, 1988, to clarify the
narrative section of the violation. At that time, Denton also issued Citation
No. 3253702, charging Asarco with a violation of section 57.3200, for its
failure to properly address the hazardous ground conditions with respect to
the loose ground that fell and killed Norton. Erickson also wrote Citation
No. 3253416 charging Asarco with a violation of section 57.3200 because loose
ground had not been removed from the ribs and back in places along the
driller's travelway between the 2C3 stope and the 2C3 heading (back stope).
Further, Erickson wrote Citation No·;· 3253417, charging a violation of section
57.3401, because he observed two miners directly below and in close proximity
to loose ground in the 3C4 stope.
The MSHA inspectors determined that each of these four violations were
of a significant and substantial nature and that Asarco's negligence was high.
In his decision, the judge concluded that Asarco violated section
57.3401 (Citation No. 3253415) at the accident site. 12 FMSHRC at 2087. The
judge found that Norton and Bales failed to properly examine and test the roof
in the heading of the 2C3 stope. 12 FMSHRC at 2083-84. The judge concluded
that, had Norton and Bales properly examined the roof, they would have seen
the belly and the loose ground observed by the Secretary's witnesses. 12
FMSHRC at 2083. The judge emphasized that, where loose ground is present and
left uncorrected, there is a prima facie indication that the roof was not
properly examined. 12 FMSHRC at 2084.
The judge further found that the roof should have been tested before the
accident because loose ground was observed by the Secretary's witnesses and
because the mine's blasting-mucking-drilling cycle created a duty to test the
roof. 12 FMSHRC at 2084. The judge rejected Asarco's contention that its
method of testing the roof with the jumbo drill was a competent method of
testing a mine roof. The judge credited the testimony of the Secretary's
witnesses that sounding the roof with a steel bar was the only effective
method to test a mine roof. 12 FMSHRC at 2084-87. The judge found Asarco
highly negligent in permitting and encouraging its drillers to use the jumbo
drill instead of a scaling bar to test the roof. 12 FMSHRC at 2087.

6

The term "belly" is defined as "[a] bulge, or mass of ore in a lode."
DMMRT at 95.

944

With respect to the other section 57.3401 citation (No. 3253417), the
judge found that the undisputed evidence supported the violation. 12 FMSHRC
at 2091. He credited the inspectors' opinions that the loose material that
they observed above the two miners in the 3C4 stope was hazardous and obvious.
Id. He further found that the fact that the miners were sitting beneath
loose, hazardous materials was a prima facie indication that the rib had not
been properly examined. Id. He also found that the violation was the result
of Asarco's high negligence. Id.
The judge also concluded that Asarco violated section 57.3200 (Citation
No. 3253702) at the accident site. 12 FMSHRC at 2091. The judge credited the
testimony and opinions of some of the Secretary's witnesses that the slab that
killed Norton was hazardous, detectable, and should have been taken down,
supported, or dangered off before the accident. Id. He found that Asarco was
highly negligent in failing to take the necessary precautions to protect
Norton from the danger of a roof fall in his work area. Id.
The judge found that the evidence fully supported the other section
57.3200 citation (No. 3253416), because the roof conditions in the travelway
were hazardous and obvious. 12 FMSHRC at 2091-92. The judge credited
Erickson's testimony that there were 40 to 50 pieces of loose material in the
roof and ribs along the travelway weighing from 10 to 100 pounds. Id. He
also found Asarco highly negligent in failing to correct the poor ground
conditions. Id.
The judge assessed penalties of $6,000 each for the citations issued
with respect to the accident area and $200 each for the other two citations.
II.

Disposition of Issues
A.

Section 57.3401 accident citation (No. 3253415)

We conclude that the judge erred as a matter of law in his determination
that Asarco failed to examine and test the roof in the heading of the 2C3
stope as required by section 57.3401. That section contains two important
requirements. First, areas where work is to be performed must be examined for
loose ground before work is started, after blasting, and as conditions
otherwise warrant during the workshift. Second, where applicable, ground
conditions in work areas must also be tested.
That the area where Norton was working, the 2C3 heading, was subject to
examination is not in dispute. The judge interpreted the examination
requirement of the regulation to require a careful visual inspection.
12 FMSHRC at 2083, 2084. This interpretation is also not in dispute.
The Secretary does not dispute that Bales and Norton looked at the roof
in the heading.
Tr. 943 44, 948-51, 1044-45, 1202-10; S. Exh. 15; A. Exh.
3. Bales testified that he examined the area when he first arrived at the 2C3
heading with Norton about 7:25 a.m., the morning of the accident, and that he
found no cracks, discoloration, loose ground, or any material on the floor.

945

Tr. 1203 04, 1214-15, 1225 26. Richard Hubbard, an Asarco miner, confirmed
that Bales examined the work area and, that he shared Bales' belief that the
ground was good. Tr. 312.
Tr. 943-44, 1045, 1304. At about
10:50 a.m., Bales visited Norton and again saw no
of loose ground.
Tr.
1205-07. Bales also looked at the ground in the area less than an hour before
the accident and testified that he did not see anything wrong and did not hear
any indication that the ground was "working." Tr. 1208-10. MSHA Inspector
McDaniel, the first MSHA person to arrive at the accident scene, testified
that he believed Norton had examined the area.
Tr. 1299.
Moreover, it is undisputed that Norton scaled the roof in the area with
the jumbo drill. MSHA Inspector Erickson, who issued the citation, as well as
MSHA Inspectors Denton and McDaniel essentially acknowledged that the accident
site had been scaled with the drill. Tr. 66, 209, 212, 428, 432, 437, 508-09,
526-27, 1299. That the area had been scaled seems to confirm that the roof
had been examined.
The Secretary introduced no evidence to show that the area was not
examined before Norton started working there on the day of the accident. The
only evidence that the roof was not examined is (a) the fact that part of the
roof fell and (b) the testimony of MSHA inspectors that they observed some
areas of loose roof in the heading at the time of the accident investigation.
The language of the citation makes clear that the inspectors based their
determination that the roof had not been examined primarily on the fact that a
roof fall had occurred, rather than on evidence that an examination had not
been conducted.
The j
concluded that "[w]here loose materials in a roof are present
and left uncorrected ... , where miners work or travel, there is a prima facie
indication that the roof was not properly examined within the meaning of
§ 57.3401." 12 FMSHRC at 2084.
That conclusion is incorrect as a matter of
law. Neither the presence of loose materials, nor the fact that the roof
fell, by themselves, indicate that the area was not properly examined. Roof
conditions in a mine are dynamic; a miner can perform a thorough and competent
examination as required by the standard and determine that the roof is secure
and yet, at a later time, material can become loose and fall. We agree with
the judge that examinations must be "careful, informed observations with
appropriate accountability." 12 FMSHRC at 2084. We disagree, however, with
the judge's conclusion that a
facie indication of violation occurs if
there has been a fall of ground and loose material is subsequently discovered
in the area.
The judge relied, in part, on the existence of a "belly" in the roof of
the heading to support his conclusion.
12 FMSHRC at 2083. The presence of a
"belly," however, does not necessarily indicate that the area had not been
examined; Norton and Bales may have known that a belly was present, but
determined that it was stable.
Indeed, testimony from Asarco miners William
Ellis and Richard Frazier, indicates that they attempted to remove a belly in
the subject heading a week before the accident. After scaling the area, they
concluded the area was safe.
at 11. Further, the fact that no action
is taken to remove or support a belly does not, in itself, establish that the
roof was not properly examined. A miner may observe an area of questionable

946

roof, test the area and erroneously conclude that it is safe. Such conduct
could constitute a violation of section 57.3200, requiring that loose roof be
supported or taken down, but it would not by itself constitute a violation of
section 57.3401. The judge's conclusion has the effect, in cases where there
has been a fall of ground, of improperly shifting to the operator the burden
of proving that an examination was conducted. We hold that it is the
Secretary's burden to prove that a proper examination was not conducted.
We turn to the testing requirement of the regulation. The judge found
that Asarco failed to test the ground conditions in the heading because a
jumbo drill was used to test the roof. The judge held that the drill was not
an adequate device for testing a mine roof. 12 FMSHRC at 2084. For the
reasons that follow, we reject the judge's finding that Asarco's use of the
jumbo drill was not a permissible means of testing the roof. 7
The standard does not specify how testing for loose ground is to be
performed, nor .has the Secretary described the procedure or set forth
guidelines in her Program Policy Manual or other interpretative material. The
Secretary has not prohibited mine o~erators from using jumbo drills to test
for loose ground. 8
Oral Arg. Tr. 23. The preamble to this safety
standard emphasizes that it was drafted to be "flexible enough to accommodate
the variety of situations which may arise while assuring the safety of persons
working in the mines." 51 Fed. Reg. 36192-93 (October 8, 1986).
Counsel for
the Secretary acknowledged this fact by stating that the standard is
"performance-oriented" so that it could be applied to "a lot of different
situations." Oral Arg. Tr. 23.
Section 57.3401 is not a detailed standard but rather is of the type
made "simple and brief in order to be broadly adaptable to myriad
circumstances."
Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981);
Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December 1982). Nevertheless,
such a broad standard must afford reasonable notice of what is required or
proscribed.
5 FMSHRC 3, 4 (January 1983). The safety
standard must "give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly."
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); see also, Phelps Dodge
v. FMSHRC, 681 F.2d 1189, 1192 (9th Cir. 1982).
Asarco asserts that it has been testing the roof at this mine with jumbo
7

Although Asarco contends that the judge expanded the scope of the testing
requirement of section 57.3401 beyond that set forth in the standard, on review,
Asarco does not dispute that testing was necessary in the heading on the day of
the accident. Consequently, we need not decide whether the judge's conclusions
as to when testing is required by the standard are correct.
8

Asarco's use of the jumbo drill in testing involves "rattling the back."
Under this procedure, the jumbo drill is vibrated or pounded against the roof to
detect loose material and to scale it. A. Br. 9 n.2.

947

drills for a number of years. Asarco contends that its testing method is safe
and effective and that it reasonably believed that this method complied with
the requirements of the standard. When faced with a challenge to a safety
standard on the grounds that it fails to provide adequate notice of prohibited
or required conduct, the Commission has applied an objective standard, i.e.,
the reasonably prudent person test. The Commission recently summarized this
test as "whether a reasonably prudent person familiar with the mining industry
and the protective purposes of the standard would have recognized the specific
prohibition or requirement of the standard." Ideal Cement Co., 12 FMSHRC
2409, 2416 (November 1990). See also, Lanham Coal Co., 13 FMSHRC 1341
(September 1991). "In order to afford adequate notice and pass constitutional
muster, a mandatory safety standard cannot be 'so incomplete, vague,
indefinite or uncertain that [persons] of common intelligence must necessarily
guess at its meaning and differ as to its application.'"
, guoting Alabama
By-Products Corp., 4 FMSHRC at 2129 (citations omitted).
The Secretary seems to take the position in this case that a scaling bar
is the proven and effective means of testing for loose ground and, if a mine
operator wishes to use another method, it does so at its own risk. The
language of the regulation, however, is not so limiting. If the Secretary
intended to require the exclusive use of a scaling bar to test for loose
ground in all but a few. limited circumstances, she could have set forth that
requirement in her regulation or in interpretative materials. Absent such an
express requirement, we are not convinced that a reasonably prudent person
familiar with the mining industry would have recognized that testing the roof
with the jumbo drill fails to comport with the testing requirements of section
57.3401. The judge, in finding that testing with a jumbo drill was
inappropriate because the noise from the drill would mask the test sounds
coming from the roof, relied on testimony from Supervisory MSHA Inspector
Denton, MSHA ground con~rol expert Billy Owens, and MSHA noise expert Richard
Goff. Neither Denton, Owens, or Goff, however, had ever used a jumbo drill to
test ground or for any other purposes. Tr. 106, 149, 182 83, 844-45, 1428,
1522-23. Denton acknowledged that he was not familiar with the jumbo drill
and did not know how to test with it. Tr. 182, 183. Nor is there any
indication that Denton, Owens, or Goff conducted noise tests of a jumbo drill
testing for loose ground. See Tr. 182, 183, 1449, 1501, 1520, 1523. While
Owens testified that investigations have found, in certain instances, that use
of the jumbo drill for testing ground has not been accurate, he also conceded
that testing with a scaling bar is not always accurate either. Tr. 774-75,
806-07. No objective evidence, such as test results, was presented by the
Secretary as to the accuracy of either method.
Asarco presented evidence to establish the effectiveness and safety of
using a jumbo dri.11 to test the roof, which the judge did not directly address
in his decision. Jack Parker, an independent expert in ground control
experienced in the use of the jumbo drill, testified that using a jumbo drill
to test is common, safe, and accepted throughout the mining industry. Tr.
1549, 1550-51, 1555-56, 1558-59. Patrick Garven, a representative of the
largest manufacturer of underground drilling equipment, who was also qualified
as an expert witness, testified that testing with a jumbo drill is a safe,
common, and effective practice, and that one can distinguish between good and
bad ground conditions when rattling the back based on the sound changes. Tr.

948

1466, 1472-74. A number of Asarco miners, including Richard Hubbard, William
Ellis, Richard Frazier, Richard Abdella and Carlyle Bales, testified as to the
effectiveness of using the jwnbo drill to test for loose ground. Hubbard,
Ellis and Frazier, witnesses proferred by the Secretary, as well as Abdella,
testified that the machine would make a much different sound on solid rock
than on hollow rock typifying loose ground. Tr. 279-80, 323, 357, 554-56,
977 78. Asarco's mine safety director Hendrix testified that for at least
three years the jumbo drill had been used for testing ground at the Immel Mine
with MSHA's knowledge. Tr. 31.
Also, MSHA inspectors testified that using the jumbo drill to test was
MSHA Inspector Vincent D'lnnecenzo, who also inspected the mine
after the accident, testified that rattling the back was a common industry
for testing for loose ground, and that it was a permissible practice.
ition Tr. 27-28. MSHA Inspector McDaniel testified that he has observed
of "rattling the back" for purposes of testing and considers it
safe, and a common practice. Tr. 1291-93, 1345.
The judge failed to directly 'addressAsarco's evidence that drill
can detect loose ground by differences in vibration and by visual
observations of the rock being rattled, and that testing is not solely reliant
on sound. Parker testified that in addition to differences in sound
frequencies, one would look for dust dribbling from the roof, and observe
whether water used to suppress dust would come out of the rock at a different
location than where it was squirted in, suggesting a continuous crack.
Tr. 1557. Parker further testified that the drill behaves differently when
going from hard to loose ground (Tr. 1557-58), and Frazier testified that, if
there was bad ground, there would be dribbling or shaking in the area. Tr.
568 69. Hubbard emphasized the importance of sight when testing with the
jumbo drill. Tr. 289-90.
, the judge did not expressly address noise test data collected
noise expert James Barnes, supporting the claims by Asarco's
miners that they are able to distinguish between solid and loose ground using
a jumbo drill. Tr. 1631-33. Barnes testified that he was able to distinguish
drummy, loose ground from solid ground by the difference in noise frequencies.
Tr. 1632-33, 1640-42, 1644-45.
witnesses testify to offer their scientific opinions on technical
matters to the trier of fact. If the opinions of expert witnesses conflict in
a
, the judge must determine which opinion to credit, based on such
factors as the credentials of the expert and the scientific bases for the
's opinion. In such cases, the judge should set forth in the decision
the reasons for crediting one expert's opinion over that of another. In the
case, a number of well qualified experts presented their opinions on
the effectiveness of using a jumbo drill to test the roof, which the judge
apparently
ected, but the judge did not set forth in his decision any
reasons for rejecting their opinions. In fact, the judge rejected the opinion
testimony of Jack Parker, a highly qualified roof control expert, without
explanation or even any mention in the decision of his testimony.
Based on the evidence of record, we conclude that the Secretary has

949

failed to show that a reasonably prudent person familiar with the mining
industry would have recognized that a jumbo drill could not be used
effectively to test for loose ground under section 57.3401.
Prior to the
citation in question, Asarco was provided with no notice from the language of
the regulation, from the Secretary's interpretive bulletins or other
materials, or from earlier citations that the Secretary did not consider a
jumbo drill to be a permissible means to test a roof.
Accordingly, we conclude that the judge erred in finding that Asarco
violated section 57.3401 for failure to examine and test in the 2C3 heading.
B.

Section 57.3401 stope citation (No. 3253417)

The judge held that because the inspectors found "hazardous and obvious"
loose ground above the two miners sitting in an area of the 3C4 stope, there
was a prima facie indication that the rib had not been examined in compliance
with section 57.3401. 12 FMSHRC at 2091. The judge upheld the citation
because Asarco failed to produce evidence that would contradict this prima
indication.
Id. We conclude-that the judge erred as a matter of law.
Inspector Erickson, when he wrote the citation, determined that the
loose ground was about fifteen feet above the two men and consisted of rocks
of various sizes spread over an area about ten-feet wide. The appearance of
loose ground does not by itself establish a violation of section 57.3401. The
judge presumes that the presence of loose ground is sufficient to establish
that the ground had not been examined, a presumption we deem erroneous. The
roof and rib in the area may have been examined prior to development of the
hazardous condition. Moreover, the examiners may have determined, correctly
or incorrectly, that the loose ground did not require barring down.
The burden of proving a violation is on the Secretary.
The inspectors
did not test
that the ground had not been examined, but that two miners
were s
beneath loose material (Tr. 138-39;
S. Exh. 6); when asked
whether the loose material had been examined or tested, Inspector Denton
replied:
"Well, they hadn't taken any action to take it down." Tr. 139.
Inspector Erickson's testimony provides no additional detail. Tr. 439. The
evidence falls short of that required to establish a violation. 9
Accordingly, the judge erred in finding that Asarco violated section
57.3401 in the 3C4 heading.
C.

The section 57.3200 accident citation (No. 3253702)

Section 57.3200 states, as pertinent, that "[g]round conditions that
create a hazard to persons shall be taken down or supported before other work
or travel is permitted in the affected area." The judge found that the slab
that killed Norton was hazardous, detectable, and should have been taken down,

9

A citation for violation of section 57. 3200 for hazardous ground may have
been appropriate under the circumstances, but that question is not before the
Commission.

950

supported, or dangered off before the accident.
12 FMSHRC at 2091. Asarco
argues that the j
erred because the fatal ground fall was unpredictable.
The purpose of section 57.3200 is to require elimination of hazardous
conditions. The fact that there was a ground fall is not by itself sufficient
to sustain a violation. Rather, the Secretary is required to prove that there
was a reasonably detectable hazard before the ground fall.
We conclude that
the Secretary failed to meet this burden and that the judge's conclusion that
the hazardous ground was detectable before the accident is not supported by
substantial evidence.
As we have consistently recognized, the term "substantial evidence"
means "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." See, ~. Mid-Continent Resources. Inc., 6 FMSHRC
1132, 1137 (May 1982) quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938). While we do not lightly overturn a judge's factual findings and
credibility resolutions
. , Hall v. Clinchfield Coal Co., 8 FMSHRC 1624,
1629-30 (November 1986)), neither are we bound to affirm such determinations
if only slight or dubious evidence ,is present to support them.
~,
732 F.2d 1288, 1293 (6th Cir. 1984);
Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We
are guided by the settled principle that in reviewing the whole record, an
appellate tribunal must also consider anything that "fairly detracts" from the
weight of the evidence that may be considered as supporting a challenged
finding.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951).
The testimony in the record, addressing the conditions in the 2C3
heading on October 24, 1989, before the accident, indicates that there did not
appear to be loose ground and that the condition of the roof was good.
Carlyle Bales, Norton's foreman, was in the 2C3 heading at 7:25 a.m., 10:50
a.m., and 12:25 p.m. and saw no loose ground. Tr. 1203-04, 1205-07, 1208-10,
:214-15, 1225-27. Richard Hubbard, an Asarco miner was in the 2C3 heading at
7:25 a.m. and also testified that the ground in the area looked good. Tr.
312.
Final
, Richard Abdella, another miner, was in the 2C3 heading at about
12:10 p.m and saw no s
of loose ground. Tr. 987-88, 1000.
The testimony also indicates that in the days before the accident, the
ground in the 2C3
was safe. About a week earlier, William Ellis and
Richard Frazier, Asarco miners, noticed there was a belly in the heading and
tried without success to take it down. After it had been scaled, Ellis and
Frazier thought the area was safe. Tr. 318-19, 326-27, 330, 338-39, 364, 56061, 590-91, 616
Ellis specifically testified that the belly "wasn't loose."
Tr. 330.
In addition, while the heading had been blasted on October 20, 1988,
Hobart Tucker, who mucked the heading on the evening of October 21 and morning
of October 22, testified that the ground looked good and the area was suitable
for
Tr. 378, 379-81, 389.
The evidence establishes that ground had been scaled.
See, ~, A.
Exhs. 16, 26; Tr. 168, 432, 505-10, 513.
Inspector Denton, who issued the
citation, acknowledged that the area had probably undergone at least some
scaling. Tr. 66. Denton also conceded that early drafts of MSHA's accident
inves
report stated that roof had been scaled with the jumbo drill,

951

but that all mention of scaling or taking down loose roof was subsequently
removed from the report. Tr. 209 12. Inspector Erickson also acknowledged
that some scaling had evidently been done at the accident site. Tr. 428, 432,
437, 508-09, 526-27. Inspector McDaniel testified that he believed that
Norton had scaled the area and that Norton probably considered the area to be
safe. Tr. 1363, 1366. McDaniel specifically stated that drill marks he saw
near the fall site indicated that Norton had tried to remove the belly but was
unsuccessful and that Norton must have felt the area was safe. Tr. 1354-55,
1363-64, 1366. Indeed, McDaniel, who was the first MSHA official at the scene
of the accident, testified that the ground fall was unpredictable. Tr. 1363,
1366, 1373.
The Secretary premises her case on the assumption that the rock that
fell had been loose and could have been detected by proper testing. The judge
held that Asarco's use of a jumbo drill to test the roof did not meet the
requirements of section 57.3401. As we have concluded, a reasonably prudent
person familiar with the mining industry would not have recognized that
testing the roof with a jumbo drill did not fulfill the requirements of that
section. It is not disputed that N,qrton used the jumbo drill to test the roof
in the accident area.
The Secretary's argument for affirming the citation relies mainly on the
ground fall and the conditions that were observed after the accident. As
previously discussed, the Secretary, to meet her burden of proof, must show
that ground conditions creating a hazard were not taken down or supported.
Thus, the Secretary must first show that hazardous ground conditions existed
at the time Norton was working in the area. The Secretary's witnesses who
were knowledgeable of the conditions in the heading before the accident,
including Hubbard, Ellis, Tucker, and Frazier, believed that the accident site
roof was safe at the time they were there. The judge c>pparently presumed
that, because there had been a roof fall and some loose roof was observed
during the accident investigation, predictable hazardous ground conditions
could have been detected at the time Norton was working in the area.
Furthermore, to the extent the Secretary relied on Asarco's failure to roof
bolt, we note that there is no roof bolting requirement for metal mines and
Asarco was not charged with a failure to roof bolt. See 30 C.F.R. § 57.3360.
Even though MSHA ground control expert Billy Owens, Inspector McDaniel,
William Ellis, and Richard Frazier testified that the heading may have been
too wide, Owens' ground control evaluation of the accident site did not
mention the width of the heading as a factor. Ellis testified that the ground
fall was a "freak accident", both he and Frazier testified that, when they
worked in the heading, they felt it was safe, and McDaniel thought the
accident was unpredictable. S. Exh. 12; Tr. 326-27, 329, 560 61, 616, 1363,
1366, 1373.
The Commission, in Amax Chemical Corp., supra, 8 FMSHRC at 1149, stated
that a variety of factors should be considered in determining whether loose
ground is present, including but not limited to the results of sounding tests,
the size of the drummy area, the presence of visible fractures and sloughed
material, "popping" and "snapping" sounds in the ground, the presence, if any,
of roof support, and the operating experience of the mine or any of its
particular areas. In evaluating the facts of this citation against the Amax

952

Chemical criteria, we note that the area had been examined and tested. All of
the testimony concerning the condition of the heading before the accident
indicates that the ground conditions were not believed to be hazardous, and
scaling had been performed. There was no indication of any "popping" or
"snapping" sounds.
In addition, the dolomite formation in the mine was stable
and the mine was not experiencing massive ground failures.
12 FMSHRC at 2076.

Accordingly, we conclude that the judge erred in finding that Asarco
violated section 57.3200 for failing to take down or support ground in the 2C3
heading subsequently deemed to be hazardous.
D.

Section 57.3200 travelway citation (No. 3253416)

The judge held that Asarco violated section 57.3200 because of his
finding that the roof conditions in the travelway were hazardous and obvious.
12 FMSHRC 2092. Asarco argues that the judge ignored the particularity
requirement of section 104(a) of the Mine Act, 30 U.S.C. § 814(a), asserting
that the citation is vague and encompasses vast areas of the mine. Asarco
also argues that at the hearing neit:her Inspector Denton nor Erickson could
identify on a mine map the location of the loose ground in the travelway.
Finally, Asarco argues that the roof in the travelway was safe. We find
Asarco's contentions to be without merit.
Section 104(a) requires inspectors to issue citations to operators in
written form describing the nature of the violation with particularity. Jim
Walter Resources, Inc., 1 FMSHRC 1827, 1829 (November 1979). This requirement
has two primary purposes. The first is to ensure that the operator is
adequately advised of the conditions so that he can abate them.
Id. The
second is to give the operator fair notice of the charges.
Id. The
Commission held in Jim Walter that the lack of a citation's specificity does
not affect its validity unless the operator is thereby prejudiced.
Id.
Asarco has not demonstrated any legal prejudice with respect to an inability
to abate the violation or to defend against the citation.
We conclude that substantial evidence supports the judge's finding of
violation.
Erickson testified that while traveling to the accident site with
Denton and Asarco officials, he observed 40 to 50 pieces of loose material in
the roof and ribs along the travelway, each weighing from 10 to 100 pounds.
Tr. 417, 419, 426.
Denton also testified to the presence of loose material in
the travelway between the 2C3 back stope and heading. Tr. 136-37. Erickson
and Denton further testified that they pointed out the loose areas to Asarco
officials as they proceeded to the accident site. Tr. 163, 419. The judge
credited this testimony.
12 FMSHRC at 2092.
In addition, McDaniel testified
that as he was going to the scene of the accident, he saw loose ground in the
travelway on pillars and ribs. Tr. 1359. The mine manager acknowledged that
Denton and Erickson had pointed out loose ground generally. Tr. 1133.
Accordingly, we affirm the judge's finding that Asarco violated section
57.3200 for loose ground in the travelway leading to the 2C3 stope heading.

953

E.
Asarco argues that the judge erred in finding Asarco highly negligent
with respect to the four violations.
Because we are vacating all but one
citation, our discussion is limited to negligence with respect to that
violation, Citation No. 3253416.
The judge found Asarco highly negligent with respect to the section
57.3200 citation in the travelway based on Asarco's failure to take down or
support loose material that was "hazardous and obvious." 12 FMSHRC at 2092.
In this regard, the judge credited MSHA Inspector Erickson's testimony that
there were 40 to 50 pieces of loose material in the roof and ribs along the
travelway weighing from 10 to 100 pounds. Id. The judge also relied on
Erickson's testimony that he saw more loose material in the travelway than he
had seen at any other underground mine for "quite a period of time." Id.; Tr.
418-19. We conclude that this testimony constitutes substantial evidence
supporting the judge's finding. Accordingly, we affirm the judge's finding
that Asarco was highly negligent with respect to Citation No. 3253416.
F.

Other Issues

Asarco also alleges that: (1) Citation Nos. 3253415 and 3253702 (the
accident citations) are impermissibly duplicative;
(2) Inspector Denton was a
biased witness; and (3) the judge intervened to a prejudicial degree in
examining certain witnesses thereby improperly becoming an advocate for the
Secretary.
In view of our decision in this case, these issues are essentially
moot.
With respect to the travelway citation (No. 3253416), Denton's testimony
was either undisputed or, where disputed, corroborated by other independent
testimony.
While Asarco's objection to the judge's examination of witnesses
relates solely to the two accident citations, we note that administrative law
judges have considerable leeway in conducting a hearing and in developing a
complete and accurate record.
Ruhlen,
Administrative Conference of the United States, at 35 (1974).

9 54

III.

For the foregoing reasons, we reverse the judge's findings that Asarco
violated section 57.3401 (Citation Nos. 3253415 and 3253417), and that Asarco
violated section 57.3200 (Citation No. 3253702) in the 2C3 heading.
Accordingly, we vacate citation Nos. 3253415, 3253417, and 3253702. We affirm
the judge's finding that Asarco violated section 57.3200 (Citation No.
3253416) in the 2C3 travelway and his finding that Asarco was highly
negligent.

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner

Distribution

Henry Chajet, Esq.
Jackson & Kelly
1701 Pennsylvania Ave., N.W.
Suite 650
Washington, D.C. 20006
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

955

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

June 9, 1992

SECRETARY OF IABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. wEVA 90-3
wEVA 90-8
WEVA 89-234-R through
WEVA 89-245-R

v.

CONSOLIDATION COAL COMPANY
BEFORE:

BY:

Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners

, Doyle,,_ and Nelson, Commissioners

Ford, Chairman;

This consolidated contest and civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Mine
Act" or "Act") and involves the validity of 24 citations issued to
Consolidation Coal Company ("Consol") alleging violations of 30 C.F.R.
§ 50.30-l(g)(3). 1 The citations allege that Consol violated the cited

1

30 C.F.R. § 50.30 provides, in pertinent part:
§50.30. Preparation and submission of MSHA
Form 7000-2--Qua.rterly Employment and Coal
Production Report.
(a)
Each operator of a mine in which an
individual worked during any day of a
calendar quarter shall complete a MSHA Form
7000 2 in accordance with the instructions
and criteria in §50. 30-1 and submit the
to the MSHA Health and Safety
Center. . . .
Each operator shall
retain an operator's copy at the mine
office nearest the mine for 5 years after
the submission date.

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*

§50.30 1
General
instructions
completing MSHA Form 7000-2.

*

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*

Employee Hours,

956

for

and Coal

regulation by significantly over-reporting to the Secretary of Labor's Mine
Safety and Health Administration ("MSHA") the number of hours that its
employees worked at its Robinson Run No. 95 Mine and its Blackstone No. 1 Mine
in each quarterly report for 1986, 1987 and 1988. Commission Chief
Administrative Law Judge Paul Merlin upheld each of the citations. 12 FMSHRC
167 (January 1990)(ALJ); 12 FMSHRC 1129 (May 1990)(ALJ). Consol petitioned
for review of the judge's decision, asserting that the judge erred in
(A) concluding that the cited regulation was validly promulgated in accordance
with the Mine Act; (B) concluding that the Secretary of Labor is authorized
under the Act to assess civil penalties for violations of the cited
regulation; (C) finding that Consol violated the regulation; and (D) finding
that the violations were the result of Consol's high negligence. We granted
Consol's petition and heard oral argument.
For the reasons that follow, we
affirm the judge's decision.
I.

The citations were issued in 1989 following an MSHA audit of the records
that Consol is required to maintain under 30 C.F.R. Part 50. Section 50.30
requires coal mine operators to submit information concerning employment and
coal production to MSHA, on Form 7000-2, on a quarterly basis. One column of
the form requires operators to report the total number of "employee-hours
worked" during the quarter.
Froml986 through 1988, Consol reported to MSHA
the total number of hours that it estimated employees were present at its
mines rather than the number of hours that employees worked.
Consol obtained
this estimate by adding additional time to the number of employee-hours
reflected in its payroll or other time records.
It added 45 minutes per
employee per day for hourly employees, and 90 minutes per employee per day for
salaried employees. The citations charge that Consol "significantly over
reported employee hours" on Form 7000-2 by adding 45 minutes each day for
hourly employees to cover "time spent on mine property before and after work

*

*

*

*

*

(3) Total employee-hours worked during the
quarter:
Show the total hours worked by
all employees during the quarter covered.
Include all time where the employee was
actually on duty, but exclude vacation,
holiday, sick leave, and all other off-duty
time, even though
for.
Make certain
that each overtime hour is reported as one
hour, and not as the overtime pay multiple
for an hour of work.
The hours reported
should be obtained from payroll or other
time records.
If actual hours are not
available, they may be estimated on the
basis of scheduled hours. Make certain not
to include hours paid but not worked.

957

hours," in violation of 30 C.F.R. § 50.30 1(

(3).

At the outset of this proceeding before the judge, Consol filed a motion
to dismiss on the grounds that (1) Part 50 of the Secretary's regulations is
unenforceable because it was improperly promulgated by the Secretary of the
Interior; and (2) civil penalties cannot be imposed under section 110(
of
the Mine Act for the alleged violations.
Consol argued that, because the
in question was promulgated after the Mine Act was enacted by
s but before the Act's effective date, the regulation was invalid.
In
the alternative, it argued that the civil penalties assessed by the
were not authorized because, under the Mine Act, penalties may be assessed
only for violations of the Act and for violations of mandatory safety or
health standards.
In an order dated January 24, 1990, Chief Administrative
Law Judge Paul Merlin denied Consol's motion. 12 FMSHRC 167 (January
1990)(ALJ). The judge held that the
of the Interior was authorized
to issue the reporting regulations at the time of their promulgation and that
civil
can be imposed by the
of Labor for violations of
these regulations. Consol then filed a petition seeking interlocutory review
of the judge's order, which was denied by the Commission on March 8, 1990.
The parties next filed with the j
"Joint Stipulations of Law and
Facts" and they each filed separate motions for summary judgment. In a
decision dated May 24, 1990, the Judge
the Secretary's motion for
swnmary judgment, upheld each of the citations and assessed civil penalties.
12 FMSHRC 1129 (May 1990)(ALJ). The judge determined that Consol violated
section 50.30 l(g)(3) because MSHA has
required the reporting of
hours worked as recorded on payroll records or other time records.
The stipulated facts are set out in full in the judge's decision.
12 FMSHRC at 1133-42. Consol requires that miners report to work prior to the
of their shift in order to prepare for work and requires that they
remain on mine property after their shift to return equipment and supplies
to departing.
Stips. 24 & 25. Because miners are not paid for such
is not reflected on Consol's
records.
Stip. 28. Consol is
by section 50.20 to report occupational injuries and accidents to
MSHA.
Stip. 11. Some of the injuries
by Consol to MSHA during 198688 occurred before and after the miners' shifts. Stips. 20 & 21. As a
consequence, Consol considered that all time that employees were on mine
was "exposure time.
Stip. 23.
11

No accurate record is kept by Consol of the amount of pre- and postshift time employees are on mine property.
27. Consol estimates that
each
employee spends 45 minutes more per
on mine property than is
reflected on its payroll records. Stip. 37. Consol believes that if the 45
minute estimate is added to the time shown in the payroll records, the sum
reflects the number of hours each hourly
at the mine site on a
basis, i.e., the exposure hours. Stip. 38. For purposes of this
, the Secretary agreed that Consol's
of adding 45 minutes
to the time shown in the payroll records "reflect[s] the actual time spent by
hourly
at [Consol's mines] on the
when they are at the mine
site."
. 46. The parties further
that payroll records
ref]ect
time worked are not kept for salaried employees and that Consol

958

estimates that salaried employees spend an additional 90 minutes per day on
mine property.
Stips. 30 & 31. The Secretary did not cite Consol for
reporting the estimated exposure hours of salaried employees.
Stip. 33.
Section 50.20(a) requires mine operators to report to MSHA any accident,
occupational injury or occupational illness.
Stip. 10. The Commission
has interpreted section 50.20(a) to require the reporting of an occupational
injury, as defined at section 50.2(e), if it occurs on mine property, whether
or not such injury occurred during the miner's shift.
Freeman United Coal
Mining Co., 6 FMSHRC 1577, 1578-79 (July 1984); See Stip. 11.
In Freeman, the
Commission held that there need not be a causal nexus between the miner's work
and the injury sustained.
6 FMSHRC at i578-79. The injury in that case
occurred when a miner experienced back pain while putting on his work boots in
the mine's wash house about one hour before the beginning of his shift. 6
FMSHRC at 1578. The Commission affirmed the judge's finding that the operator
violated section 50.20(a) by not reporting the injury to MSHA.
Prior to the Commission's decision in Freeman, Consol reported to MSHA
as "hours worked" the number of emplpyee hours set forth in its payroll
records, but not pre- and post-shift exposure time.
Stip. 42. Likewise,
Consol did not report, under section 50.20(a), injuries that occurred to
miners before and after their shifts.
After the Freeman decision, Consol
began to report such pre- and post-shift incidents and also exposure time on
mine property.
Stip. 43. Consol did not inform MSHA that it had changed its
method of calculating reportable hours.
Stip. 45. The Secretary did not
issue any policy memoranda or otherwise provide any guidance to operators
regarding the effect of the
decision.
Stip. 44. The Secretary did
not discover that Consol was including pre- and post-shift hours on its Form
7000-2 until MSHA audited Consol's records.
Stip. 45.
MSHA uses the data gathered from sections 50.20 and 50.30 to calculate
rates of injury occurrence ("incident rates") for each mine, operator, state,
MSHA District and Subdistrict, and for the nation.
Stip. 13; 30 C.F.R.
§ 50.1.
The incident rate for a given mine, for example, is calculated by
dividing the total number of occupational injuries, occupational illnesses and
accidents reported in a quarter (multiplied by a constant: 200,000) by the
total employee-hours worked during such quarter. 30 C.F.R. § 50.1; Gov. Exb.
1, p. 17. Incident rates are used by MSHA to analyze injury and illness
trends and to allocate inspection resources.
Stip. 16.
In his order of January 24, 1990, the judge determined that 30 C.F.R.
Part 50 was validly promulgated by the Secretary of the Interior under the
Coal Mine Health and Safety Act of 1969, 30 U.S.C. 801 et seq. (1976)(amended
1977)(the "Coal Act") and was properly transferred to the Secretary of Labor
by the Mine Act.
The Secretary of the Interior promulgated Part 50 on
December 30, 1977, after the enactment date of the Mine Act, November 9, 1977,
but before its effective date, March 9, 1978. The judge determined that Part
50, adopted under the Coal Act, remained in effect as a result of section
30l(c)(2) of the Federal Mine Safety and Health Amendments Act of 1977,

9 59

30 U.S.C. § 96l(c)(2)("Amendments Act"). 2 12 FMSHRC at 170. He rejected
Consol's argument that the Secretary of the Interior lacked authority to issue
the reporting regulations after the Mine Act was enacted, and that only
regulations in effect on its enactment date were validly transferred from the
Department of the Interior to the Department of Labor. 12 FMSHRC at 170-71.
The judge also rejected Consol's argument that, because Part 50 is a
regulation, not a mandatory safety or health standard, penalties cannot be
assessed for the alleged violations.
12 FMSHRC at 172. He held that a
violation of Part 50 is also a violation of the Mine Act.
12 FMSHRC at 173.
He reasoned that sections llO(a), 104(a) and lOS(a) of the Mine Act, which
authorize the Secretary of Labor to issue citations for violations of
regulations and to notify the operator of penalty assessments for such
citations, must be read in concert.
The judge concluded that the
Secretary is authorized to assess penalties for violations of Part 50.
In his decision of May 24, 1990, the judge determined that the subject
regulation requires each operator to report the total hours worked by all
employees, and that for hourly employees the total hours worked for reporting
purposes are the hours recorded on.payroll or other similar time records.
12 FMSHRG at 1142. He determined that the Secretary has consistently
interpreted the language of the regulation to require operators to obtain
"hours worked" from such records and that her interpretation of the regulation
is dispositive of the case.
Id. He granted the Secretary's Motion for
Summary Judgment and found that Consol had violated the subject regulation.

2

Section 30l(c) of the Amendments Act provides in part:
(c)
Unexpended appropriations; personnel; property;
records; obligations; commitments; savings provisions;
pending proceedings and suits

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*

*

(2)
All orders, decisions, determinations, rules,
regulations, permits, contracts, certificates, licenses,
and privileges (A) which have been issued, made,
granted, or allowed to become effective in the exercise
of functions which are transferred under this section by
any department or agency, any functions of which are
transferred by this section, and (B) which are in effect
at the time this section takes effect, shall continue in
effect according to
their terms until modified,
terminated, superseded, set aside, revoked, or repealed
by the Secretary of Labor, the Federal Mine Safety and
Health Review Commission or other authorized officials,
by any court of competent jurisdiction, or by operation
of law.

960

The judge determined, however, that the violations were non-serious and
technical in nature because the method the Secretary uses to calculate
incident rates produces "flawed data." 12 FMSHRC at 1144-46. He determined
that the time frame for injuries that must be reported to MSHA for use in the
numerator of the formula is not consistent with the time frame for hours
worked that must be reported to MSHA for use in the denominator of the
formula. 12 FMSHRC at 1144. The judge held that the formula of 30 C.F.R.
§ 50.l produces "an inherently flawed injury incidence rate" because "the
numerator and denominator [of the formula] are mismatched with the former
premised upon place but the latter predicated upon time and place." Id.
The judge concluded that the violations were the result of Consol's high
negligence. 12 FMSHRC at 1146. He found that Consol intentionally changed
its method of reporting hours worked and took "the law into its own hands by
deciding for itself what the law means and how it can best be applied." Id.
II.

Disposition of Issues
A.

Whether the Regulations in 30 C.F.R. Part 50 are Enforceable.

The judge concluded that section 30l(c)(2) of the Amendments Act
(n. 2, supra) is a broad savings clause that carried over to the Mine Act the
Part 50 regulations promulgated by the Secretary of the Interior under the
Coal Act. 12 FMSHRC at 170. In relevant part, section 301(c)(2) provides
that all "regulations ... which have been issued ... or allowed to become
effective in the exercise of functions which are transferred under this
section ... which are in effect at the time this section takes effect, shall
continue in effect according to their terms until modified, terminated,
superseded, set aside, revoked or repealed by the Secretary of Labor .... "
Section 30l(a) of the Amendments Act, 30 U.S.C. § 96l(a), transferred to the
Secretary of Labor the enforcement functions of the Secretary of the Interior
under the Coal Act and the Federal Metal and Nonmetallic Safety Act, 30 U.S.C.
§ 721 et seq. (1976)(repealed)(the "Metal Act").
Section 307 of the
Amendments Act, 30 U.S.C. § 801 note, provides that "this Act and the
amendments made by this Act ... shall take effect 120 days after the date of
enactment of this Act." The Act was enacted on November 9, 1977, and became
effective March 9, 1978.
Within the meaning of section 30l(c)(2) of the Amendments Act, the
regulation in question was "issued" and "allowed to become effective" by
Interior in the exercise of its mine safety and health functions and the
regulation was "in effect" on the date the Mine Act became effective.
Consol 3 argues that the pivotal date is the Mine Act's enactment date rather
than its effective date. Consol contends that passage of the Mine Act
prohibited the Department of the Interior's promulgation of Part 50 because
3

The Commission permitted amicus curiae briefing by the National Coal
Association ("NGA"), a mining industry trade association.
Reference in this
decision to arguments advanced by Consol includes the arguments of the NCA.

961

Congress intended to place mine safety and health rulemaking authority in the
hands of the Secretary of Labor immediately upon its enactment. Consol
maintains that, because Congress did not trust the Department of the Interior
to protect the safety and health of miners, Congress curtailed Interior's
rulemaking authority so that only those standards and regulations already in
effect on the enactment date of the Mine Act would be transferred from
Interior to Labor.
In making its arguments, Consol relies upon section 30l(b)(l) of the
Amendments Act, 30 U.S.C. § 96l(b)(l). 4 It contends that this provision
states that only regulations that were "in effect on November 9, 1977" were to
be transferred to the Secretary. Consol concludes that "Interior's attempted
promulgation of Part 50 (on December 30, 1977) after enactment of the Mine
Act, and prior to its effective date (March 9, 1978) was an ultra vires
attempt to transfer to Labor regulations that did not exist when the Mine Act
was passed." Consol Br. 10.
We agree with the judge that Consol's reliance on section 30l(b)(l) of
the Amendments Act is misplaced.
The section is ambiguous in that one phrase
refers to "standards and regulations" under the Coal Act while the section's
title is "Existing mandatory standards; ... "and elsewhere it refers t:o
"mandatory standards" or "mandatory health or safety standards." Section
30l(c)(2) by its express terms, clearly governs "regulations," such as the
regulation at issue in this case. The judge concluded that section 30l(b)(l),
when read in its entirety, governs mandatory standards, not the regulation at
issue. 12 FMSHRC at 169. The legislative history does not clarify section
301(b)(l). The Senate Conference Report for the Mine Act, however, discusses
the "carry over" of existing safety and health standards separately from its
discussion of the continuation of existing regulations, thereby providing

Section 30l(b) of the Amendments Act provides in part:
(b)
Existing mandatory standards; review by advisory
committee; recommendations
(1)
The mandatory standards relating to mines,
issued by the Secretary of the Interior under the
Federal Metal and Nonmetallic Mine Safety Act [ 30 U.S. C.
721 et seq. J and standards and regulations under the
Federal Coal Mine Health and Safety Act of 1969 [30
U.S.C. 801 et seq. which are in effect on November 9,
1977, shall remain in effect as mandatory health or
safety standards applicable to metal and nonmetallic
mines and to coal mines respectively under the Federal
Mine Safety and Health Act of 1977 [30 U.S.C. 801 et
seq.] until such time as the Secretary of Labor shall
issue new or revised mandatory health or safety
standards applicable to metal and nonmetallic mines and
new or revised mandatory health or safety standards
ap?licable to coal mines.

962

support for the judge's construction.
S. Rep. No. 461, 95th Cong. 1st Sess.
64-65 (1977),
Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Healtli Act of 1977, 1342-43 (1977) ("Legis. Hist.");
also Sec.
Br. 7, n. 5. We conclude that the more logical interpretation of section
30l(b)(l) is to limit its application to mandatory standards.
The language of section 30l(b)(l), moreover, does not support Consol's
position that the Secretary of the Interior was required to maintain the
status quo with respect to regulation during the period between enactment of
the Mine Act and its effective date.
Even assuming that section 30l(b)(l)
applies to regulations, it simply provides that standards and regulations in
effect on November 9, 1977, were to remain in effect until modified by the
Secretary of Labor.
It does not reference standards and regulations that were
not yet in effect on that date or that were modified by the Secretary of the
Interior after that date.
Finally, we agree with the Secretary's argument that Consol's
interpretation of the transfer provisions leads to illogical results that are
at odds with the statute's underlyi~g purposes.
See, 2A Sutherland Statutory
Construction, § 45.12, at 61 (Singer 5th ed. 1992 rev.).
Consol's
interpretation would create a four-month gap during which no agency had the
authority to issue standards or regulations.
Given its concern with the
safety of the nation's miners, it seems highly unlikely that Congress intended
to prohibit regulatory action during that period. Thus, we affirm the judge's
conclusion that the regulations at Part 50 are valid and enforceable.
B.

Whether Civil Penalties may be Assessed for Violations of 30
C.F.R. § 50.30-l(g)(3).

Consol argues that even if Part 50 is deemed enforceable, the Secretary
is without authority to propose civil penalties for violations of Part 50
regulations because they are not mandatory health or safety standards
promulgated in accordance with the procedural requirements of section 101 of
the Coal Act or the Mine Act. 5 Consol contends that section llO(a) of the
Mine Act authorizes the assessment of civil penalties only for violations of
mandatory health or safety standards and violations of the Mine Act.
Consol
asserts that Congress, when considering the legislation that became the Mine
Act, expressly rejected the civil penalty provisions contained in the Senate

5

It is undisputed that the Part 50 regulations are not mandatory
safety or health standards. They were promulgated under section 508 of the Coal
Act, 30 U.S. C. § 957, while mandatory standards would have been promulgated under
section 101 of the Coal Act. Mandatory health and safety standards consist of
the interim standards established by titles II and III of the Coal Act and
standards promulgated pursuant to section 101 of the Coal Act and section 101 of
the Mine Act.
The interim standards were carried over to titles II and III of
the Mine Act.
section 3(1) of the Coal Act, 30 U.S.C. § 802(1)
(definition of mandatory health or safety standard carried over without change
in the Mine Act).
See also, UM.WA v. Dole, 870 F.2d 662, 668 (D.C. Cir. 1989).

963

and House bills as introduced. Those bills authorized the assessment of a
civil
for a violation of the Act, safety and health standards or "any
rule, order or regulation promulgated pursuant to this Act." Consol Br. 19,
quoting S. 717 and H.R. 4287, as introduced.
The Secretary contends that if the Mine Act, including sections 104(a),
lOS(a) and llO(a), is read as a whole, civil penalties must be assessed for
violations of regulations as well as safety and health standards.
She
contends that this interpretation is particularly apt in cases such as this
where the regulation in issue, Part 50, implements a specific provision of the
Mine Act, section 103(d). That section provides that operators shall keep
records of "man-hours worked" and report such information "at a frequency
determined by the Secretary, but at least annually." 30 U.S.C. § 813(d).
Section llO(a), if read in isolation, appears to authorize civil
penalties only for violations of the Act and of mandatory safety and health
standards.
It is significant, however, that section 104(a) of the Mine Act
authorizes MSHA inspectors to issue a citation to an operator not only for a
violation of the Act, but also for-~ violation of a health or safety standard,
rule, order, or regulation promulgated pursuant to the Act.
30 U.S.C.
§ 814(a).
Section 105(a), 30 U.S.C. § 815(a), requires the Secretary to
notify the operator of the proposed civil penalty to be assessed for the
violation cited.
The legislative history of the Mine Act does not corroborate Consol's
position. The Senate bill (S. 717), as introduced, provided for the
assessment of a civil penalty for a "violation of a provision of this Act or a
safety or health standard prescribed by or under this Act, or any rule, order,
or regulation promulgated pursuant to this Act .... " Legis. Hist. at 157. The
original House bill (H.R. 4287) contained identical language. Legis. Hist. at
235.
When the House bill was reported by the Committee on Education and
Labor, the language from section 109(a) of the Coal Act was substituted for
the language quoted above but the Senate bill kept its original language. The
bills were then passed by their respective houses of Congress with their civil
penalty language unchanged. Thus, the Senate bill contained language
specifically referencing "regulations," while the House bill did not.
The Conference Committee subsequently adopted the House bill for other
reasons. The Conference Report states:
The Senate bill and the House amendment provided
for a civil penalty of not more than $10,000 for each
violation of the Act or a standard promulgated
thereunder. The House amendment provided that each
occurrence of a violation of a standard constitute a
offense. The Senate bill did not so provide.
s
The conference substitute conforms to the House
amendment.

964

S. Rep. No. 461 at 57, Legis. Hist. at 1335. This Report indicates that the
Conference Committee focused on whether each occurrence of a violation should
be treated as a separate offense. Thus, it does not appear that Congress
intentionally dropped the Senate's language as to regulatory violations, as
claimed by Consol.
In sum, we agree with the Secretary's interpretation of the Mine Act,
which seeks to harmonize sections 104(a), 105(a) and llO(a).
Each part of a
statute should be construed in connection with the other parts "so as to
produce a harmonious whole." Sutherland, § 46.05 at 103.
Such an
interpretation advances the goals of the Act and maintains the importance of
civil penalties as a deterrence.
Further, nothing in the Act or its
legislative history indicates that Congress rejected civil penalties for
regulatory violations.
Finally, we agree that Part 50 implements the responsibilities of the
Secretary set forth in section 103 of the Act.
These regulations constitute
implementation of section 103 pursuant to rulemaking authority under section
508 of the Mine Act, 30 U.S.C. § 957. Accordingly, we affirm the judge's
conclusion that a civil penalty may·b~ asS6ssed for a violation of section
50.30 l(g)(3).

c,

Violation of the Regulation

Consol argues that the judge's decision upholding the Secretary's
interpretation of 30 C.F.R. § 50.30-l(g).(3) ignores the plain language of the
regulation and fundamental rules of statutory construction.
Consol notes that
"the regulation clearly differentiates between on-duty (on mine property) time
and off-duty (off mine property) time," and that off-duty time is to be
excluded from the calculation of the number of employee hours worked.
Consol
Br. 26.
It asserts that the examples of off-duty work listed in the
regulation ("vacation, holiday, sick leave and all other off-duty time") occur
off mine property.
From this it reasons that off-duty time equates with time
spent off mine property and that on-duty time equates with time spent on mine
property.
Consol maintains that the judge's interpretation of the term "hours
worked" to equate with hours paid while on mine property has no support in the
language of the regulation.
It contends that the time spent by miners, before
and after shift, performing miscellaneous tasks, such as picking up and
returning equipment and supplies, is to be included in hours worked under the
regulation, even though employees are not compensated for such time, because
they are exposed to the hazards of mining during that time.
It points out
that MSHA considers on-duty, remunerated time to include time when no labor is
being performed, such as meal breaks, because employees are "on duty" at the
work site.
Consol argues that it is inconsistent to exclude time when work is
being performed while including paid work breaks.
Consol also points to the fact that under section 50.1, incident rates
are to be calculated using the "hours of employee exposure" rather than the
hours of remunerated work. The reporting of hours worked requires the
reporting of those hours "that are consistent with the possible occurrence of
reportable incidents used to calculate the intended accurate incidence rate."
Consol Br. 28. Consol maintains that it cannot be penalized for logically

965

interpre
Part 50 in a manner that is consistent with the express terms of
section 50.30 l(g)(3).
Consol also argues that, because its payroll records do not accurately
reflect time worked, it is authorized under the regulation to estimate the
total number of hours worked. The parties stipulated that Consol's estimate
as reported to MSHA "reflect the actual time spent by hourly employees [at its
mines]."
. 46. Consol contends that it was justified in reporting these
estimated hours since actual hours were not available from its "payroll or
other time records."
We disagree with Consol's view that the language of the regulation is
plain and we conclude that the Secretary's interpretation is reasonable.
Section 50.30 (n. 1
requires mine operators to complete MSHA Form
7000-2 in accordance with the instructions found in section 50.30 1, and to
submit the completed form to MSHA.
Section 50.30 l(g)(3) requires operators
to show the 11 total hours worked by all employees during the quarter covered. 11
n[H]ours worked" is not defined here or in section 50.2.
The regulation
further instructs operators to 11 [i]nclude.all time where the employee was
actually on duty .... " The term "o;:·duty" is likewise not defined. The
regulation provides that "hours reported should be obtained from payroll or
other time records" but indicates that these figures may require modification
to exclude "vacation, holiday, sick leave, and all other off-duty time, even
though
for." Overtime hours are to be reported as straight time rather
than as a multiple. Thus, although the language of the regulation is not
, it would appear that an operator is required to use its payroll or
other time records to calculate gross employee hours worked; to subtract any
time included in this calculation that represents time not worked, such as
sick leave, and any multiple hours used to calculate overtime pay; and to
report the resulting figures to MSHA. This reported figure would include all
time reflected in the payroll records "where the employee was actually on

Payroll or other time records for hourly employees typically represent
all hours worked, and the regulation instructs operators to use such records
as a starting point for the calculation required. The regulation does not
instruct operators to add to those figures any unpaid hours worked that are
not included in the payroll or other time records. The only modifications
authorized are for the purpose of deleting hours paid and not worked rather
than for adding hours worked and not paid. We discern no
justification
for reading into this regulation the right of an operator to include all time
that miners are on mine property.
The
provision of the regulation that provides an exception from the
use of payroll or other time records states that "[i]f actual hours are not
available, they may be estimated on the basis of scheduled hours." 30 C.F.R.
§ 50.30 l(g)(3). MSHA has consistently interpreted this sentence to authorize
mine operators to submit estimated hours as hours worked only if payroll or

966

other time records do not reflect actual hours worked. 6 Stip. 39; Sec. Br.
17. This exception cannot be reasonably read to allow an operator to augment
the hours worked as reflected in the payroll records with additional unpaid
hours, during which employees are on mine property.
MSHA's interpretation of the Part 50 regulations was further clarified
in informational guidelines. Although these guidelines are not binding on
MSHA or the Commission, they do provide "an accurate guide to current MSHA
policies and practices." Coal Employment Project v. Dole, 889 F.2d 1127, 1130
n. 5 (D.C. Cir. 1989). The guideline in effect between March 1978 and
December 1986 paraphrased the regulation _and stressed that hours paid but not
worked were not to be reported.
Gov. Exh. 6, p. 16. When the guideline was
revised in December 1986, it included a new sentence indicating that operators
are "not [to] include time spent on mine property outside of regularly
scheduled shifts, i.e., bathhouse, parking lot, etc." Gov. Exh. l, p. 15;
Stip. 41. We agree with the judge that this added language did not signal a
change in MSHA's interpretation of the regulation. The added language made it
explicit that operators are to submit figures for employee hours worked based
upon their payroll records rather than on information or estimates that
reflect the time employees are present at the mine.
Consol focuses on the term "hours worked" and contends that, because its
employees "work" before and after each shift, the time spent performing such
"work" should fall within the concept of "hours worked." Consol asserts that
it is inconsistent for the Secretary to exclude such unremunerated time worked
while including time that miners are paid while not working, such as paid meal
breaks. We do not dispute the logic behind Consol's argument that miners
perform "work" before and after their regular shifts and agree that this time
could or even should have been incorporated by the Secretary into the concept
of "hours worked." The Secretary, however, chose not to include these unpaid
hours in the description of "hours worked" in the regulation or guidelines.
Consol also argues that' the incident rates calculated by the Secretary
under the Mine Act should be comparable to incident rates calculated by the
Secretary for employers covered by the Occupational Safety and Health Act of
1970, 29 U.S.C. § 651 et seq. ("OSHAct").
It asserts that MSHA's Part 50
regulations should be interpreted in pari materia with the Secretary's
requirements under the OSHAct, which do not require that reportable time
equate with compensated time. While we agree with Consol that, as a matter of
policy, the incident rates calculated by the Secretary for the mining industry
should be comparable with the incident rates of other industries, the Mine Act
does not explicitly require that the method of calculating incident rates
under the Mine Act be consistent with that used under the OSHAct. As a
consequence, Consol's assertion that, as a matter of law, the Secretary's Part
50 regulations must be interpreted consistently with the reporting
requirements under the OSHAct is rejected.

6

In contrast, MSHA allows the reporting of estimated hours of work for
salaried employees totalling 9 1/2 hours per day at Consol's mines.
Stips. 32
& 33.

967

Finally, Consol argues that "a regulation cannot be applied in a manner
that fails to inform a reasonably prudent person of the conduct required."
Consol Br. 36-37, quoting Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(November 1989). Consol maintains that the Secretary's guidelines interPart 50 are internally inconsistent and have changed significantly
since the regulation was adopted.
In fact, Consol had
notice of the
Secretary's December 1986 interpretation of the regulation to the effect that
mine operators should "not include time spent on mine property outside of
scheduled shifts, i.e. , bathhouse, parking lot, etc." Gov. Exh. 1,
p. 15; Stip. 41. The revised guideline containing this specific language was
issued two and one half years before the contested citations were issued. We
conclude that Consol was
fair notice of the requirements of the
regulation.
Based on the above, we affirm the judge's finding that Consol violated
section 50.30-l(g)(3). Notwithstanding the preceding determinations, however,
we also agree with the judge that the incident rates calculated by MSHA are
flawed because the injury and accident information that mine operators are
to submit does not correlate with the data that mine operators must
for employee hours worked. 7 '>>See 12 FMSHRC 1144 46. As stated above,
the injury and accident information gathered by MSHA from section 50.20 and
the employee hours worked information gathered by MSHA from section 50.30 are
used by MSHA to calculate rates of injury occurrence pursuant to section 50.1.
Under section 50.1 incident rates are to be calculated by dividing the number
of accidents and injuries by the number of employee exposure hours. The
Secretary, however, calculates incident rates by dividing the number of
accidents and injuries during total exposure hours by the number of employee
The mismatch of numerator and denominator yields distorted
incident rates. The
argues that, since all mine operators are
required to report only actual paid hours worked, any skewing, if it occurs,
would be similar across
Sec. Br. 21. This assumption, however, is
not correct. Employees at some mines may perform pre- and post- shift tasks
for varying periods of time before and after the start of their paid shifts,
and employees at other mines may work longer shifts and perform such tasks
their paid shifts. The reported incident rates of these operators may
not be comparable.
Another source of lack of comparability in reported incident rates
across operators arises from inconsistent treatment of salaried employees.
MSHA admits that it allows Consol to include an additional 90 minutes of
exposure time for salaried employees, but has not disseminated its acceptance
of this allowance to other operators similarly situated. Oral Arg. Tr. 29-30.
This policy may serious
skew the data since counsel for Consol indicated
that at large mines as much as 30% of the work force may be categorized as
salaried employees. Oral
Tr. 44-45.

7

The citations charged Consol with nonserious, non-S&S violations.
In upholding the citations, the judge concluded that the violations were
"nonserious and technical in nature" because, as applied by MSHA, the incident
rate formula produces flawed data.
12 FMSHRC at 1146.
The Secretary did not
this finding.

968

Nevertheless, because section 50.30-1(
(3) requires mine operators to
report to MSHA the number of employee hours worked as recorded in the
operator's payroll or other time records, we conclude, as did Judge Merlin,
that Consol violated the regulation.
Prior to the Commission's decision in
Freeman United Coal Minin~ Co., 6 FMSHRC 1577 (July 1984), Consol reported as
hours worked the number of paid hours that miners worked as reflected in its
payroll records.
Stip. 42. Consol was not free to reinterpret the reporting
regulation merely because it believed that the incident rates calculated by
MSHA were flawed, because of the Commission's decision in Freeman or because
of its belief that MSHA's use of the data is misguided. As noted by the
Secretary, Consol's method is also flawed in that it dilutes Consol's incident
rate as compared to other operators.
Sec. Br. 19-21. If each operator could
report to MSHA whatever data it believed would lead to the most accurate
incident rate at its own mines, operator reports would not be comparable and
the incident rates calculated by the Secretary would be inaccurate.
Finally,
it is not clear from the record in this case whether the flaw caused by MSHA's
use of mismatched data resulted in significantly skewed incident rates for
Consol because few injuries at Consol's mines occurred before or after the
miners' regular shifts.
Sec. Br. 20-21 n. 13.
We conclude that any flaws in MSHA's calculations of incident rates do
not excuse Consol's violation of the regulation.
Incident rates provide a
general picture of the safety record of a mine operator. The assertion that
MSHA's method of calculating incident rates is less than perfect or that there
may be better methods does not excuse mine operators from complying with the
data submission requirements of Part 50. The Commission's task is not to
determine the best method of calculating incident rates, but to determine
whether the Secretary's interpretation of the reporting regulation is
reasonable and whether the operator was given fair notice of its requirements.
See e.g., K Mart Corp. v. Cartier. Inc., 486 U.S. 281, 291-92 (1988); Lanham
Coal Co., 13 FMSHRC 1341, 1343-44 (September 1991). 8
D.

Whether Consol was highly negligent

We conclude that substantial evidence supports the judge's finding that
Consol's "negligence was high." 12 FMSHRC at 1146. The express language of
section 50.30-l(g)(3) is ambiguous and, in general, the reporting requirements
of the regulation should be harmonized with the other sections in Part 50 to
effectuate the Mine Act's goal of promoting the safety and health of miners.
Cf. Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414 (10th Cir.

8

At the time of oral argument, the Secretary had issued an advance
notice of proposed rulemaking to amend her Part 50 regulations.
53 Fed. Reg.
45,878 (November 14, 1988). Consol moved the Commission, on May 8, 1992, to take
judicial notice of the Secretary's announcement that she had withdrawn Part 50
from her regulatory agenda.
57 Fed. Reg. 16, 983 (April 27, 1992).
The
Secretary has not filed an opposition to this motion. We hereby grant Consol's
motion. See Fed. R. App. P. 28(j). We find the Secretary's action in removing
Part 50 from her regulatory agenda disturbing in light of our conclusions that
injury incident rates are distorted and subject to inconsistencies as between
operators.

9 69

1984)(citation omitted).
Nevertheless, as the judge concluded, "after the Freeman decision the
operator intentionally changed its reporting of hours worked under § 50.30
l(g)(3)." 12 FMSHRC at 1146. As the judge explained:
Whatever difficulties may be presented by the
Secretary's interpretation of the Act and regulations,
no operator is free to take the law into its own hands
by deciding for itself what the law means and how it
can best be applied.

We conclude that the judge's decision is supported by substantial
evidence. Accordingly, we affirm his finding that Consol's negligence was
high.

970

III.

Conclusion
For the foregoing reasons, we affirm the judge's finding that Consol
violated 30 C.F.R. § 50.30-l(g)(3) in each instance cited, and also affirm the
judge's finding of high negligence.

L. Clair Nelson, Commissioner

Commissioner Holen, concurring:
I fully agree with this decision. I add my concern that the goal of
improving mine safety can be unnecessarily compromised by the use of
inaccurate data as a basis for allocating inspection resources, calculating
national mine safety statistics, and making regulatory policy.

Arlene Holen, Commissioner

971

Distribution

Henry Chajet, Esq.
Thad S. Huff~an,
Jackson & Kelly
1701 Pennsylvania Ave., N.W.
Suite 650
Washington, D.C. 20006
for Consolidation Coal
William E. Hynan, Esq.
Peter A. Gabauer, Esq.
National Coal Association
1130 17th St., N.W.
Washington, D.C. 20036
David M. McConnell, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

972

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

June 16, 1992
SECRETARY OF lABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 91-73

v.

UNITED STATES STEEL MINING COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners

DECISION
BY THE COMMISSION:
At issue in this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"),
is whether United States Steel Mining Company, Inc. ("U.S. Steel") violated 30
C.F.R. § 77.200, because its thermal coal dryer was losing fluidizing air
current. 1 Commission Administrative Law Judge George Koutras found that U.S.
Steel did not violate section 77.200, because the Secretary of Labor failed to
establish that there was a hazard presented to miners. 13 FMSHRC 1465
(September 199l)(ALl). The Commission
the Secretary's Petition for
Discretionary Review. For the reasons set forth below, we affirm the judge's
decision.
I.

Factual Background and Procedural History
U.S. Steel operates the Pinnacle Preparation Plant located in Pineville,
West Virginia. The plant's thermal coal dryer, a structure six stories high,
dries fine coal by fluidization. 2 Fluidizing air current is created by two

30 C.F.R. § 77.200 requires:
All mine structures, enclosures, or other facilities
(including custom coal preparation) shall be maintained in
good repair to prevent accidents and injuries to employees.
2

"Fluidization" is defined in the Department of Interior's
" [ a] roast
p roe es s in which
finely divided solid materials are kept in suspension by a rising current of air
(or other gas). This produces a fluidized bed which provides an ideal condition

=_=-:_~=~--=..:====-='-'--~""-==-='-==--=-:::~"""' ( "DMMR T" ) as

973

fans.
One fan, located at the top of the
, pulls up the air current.
This fan is 8 to 10 feet in diameter and is driven at 1200 revolutions per
minute ("
) by an 800 to 1000 horsepower motor. The second fan, at the
bottom of the dryer, pushes up the air current. This fan is 3.5 feet in
diameter and is driven at 1700 rpm by a 300 to 400 horsepower motor. The air
current allows fine coal to float across the drying bed where it is super
heated to remove its moisture.
It is carried upward as it dries and then
settles on a conveyor belt.
On September 10, 1990, Mine Safety and Health Administration ("MSHA")
Inspector Michael T. Dickerson conducted a regular inspection of the
preparation plant. During his inspection of the thermal coal dryer at the
feed end of the dryer bed, he ·saw hot coal embers and float coal dust and felt
a current of fluidizing air coming through a fracture in the concrete floor,
at about one-third of the thermal dryer's height. The length of the fracture
was variously described as 3.5 feet and 8 to 10 feet and had been
intentionally created at an earlier time in order to weld a seam on the dryer
wall.
Tr. 144, 171, 173. The 1nspector also observed a weld seam crack 3 to
4 inches long in the metal lining of the
bed.
Dickerson issued a section 104(a) citation for violation of section
77.200, alleging that the concrete floor at the feed end of the thermal dryer
had deteriorated.
The citation also alleged that there was leakage allowing
live embers and small amounts of float coal dust to escape and allowing loss
of small amounts of fluidiz
air current. Dickerson designated the
violation as significant and substantial.
Dickerson indicated before the judge, however, that the deteriorated
concrete floor was not out of
under the cited standard. Tr. 150, 153,
155, 160. Dickerson testified that the deteriorated floor played no part in
the violation, since the purpose of the floor was not to enclose the
fluidizing air from the
bed. Tr. 153, 155, 160. Rather, in Dickerson's
view, the violation was caused by the split in the metal lining of the dryer.
Tr. 15 , 160. Dickerson testified that the violation pertained to the loss of
the fluidized air current within the dryer, not to the hot embers and coal
dust that floated out into the air since U.S. Steel's maintenance outside the
would ensure that any combustible material would not accwnulate. Tr.
145, 146-47, 156, 159, 162. In sum, Dickerson believed that, if left
unabated, the loss of the fluidizing air current could cause the coal dust
inside to settle, become hot and ignite. He believed that this would pose a
hazard of fire or
ion of the coal in suspension and expose the dryer
attendant to serious injury. Tr. 137-38, 151, 156-57.
In his decision, Judge Koutras found that, although the primary purpose
of section 7.200 was to assure the physical and structural integrity of
surface coal preparation structures, the language of the standard was broad
enough to cover a
and unrepaired dryer bed enclosure lining.
13 FMSHRC at 1472. He also concluded that the dryer bed enclosure was not

for gas-solid reaction because each solid particle is in constant motion and in
contact with the moving gas stream on all sides."
at 447.

974

maintained in good repair.
Judge Koutras found, however, that in order to establish a violation of
section 77.200, the disrepair or condition of the cited equipment must present
a hazard to miners. 13 FMSHRC at 1473. Based on the evidence of the case, he
could not, however, conclude that the Secretary established that the leaking
dryer bed enclosure lining presented such a hazard.
Id. He noted that
Dickerson had conceded that the escaping coal dust and coal embers did not
pose a hazardous condition outside the dryer.
He further noted that,
while Dickerson was primarily concerned with the loss of fluidizing air
current inside the dryer, there was only a small amount of fluidizing air
current coming through the cracked dryer lining and there was no evidence that
air flow inside the dryer was restricted.
Accordingly, he concluded that
U.S. Steel did not violate the regulation.
Id.
II.
Disposition of Issues

On review, the Secretary argues that the judge erred in finding that
U.S. Steel did not violate section 77.200. The Secretary first argues that,
for a finding of violation, the judge required a showing of an actual hazard
of a significant and substantial nature: 11 - - in essence the judge would
require a finding of a 'significant and substantial' violation in order to
make out a violation." PDR at 5. The Secretary also argues that the judge
erred in not finding a hazard of a significant and substantial nature, based
on the inspector's testimony.
Contrary to the Secretary's assertions, the judge did not equate a
violation of section 77.200 to a showing of a hazard of a significant and
substantial nature.
The judge required only "that the disrepair or condition
of the cited equipment [present) a hazard to miners." 13 FMSHRC at 1473. The
judge did not, by requiring a showing of a hazard, require a showing of a
reasonable likelihood that the hazard contributed to would result in an injury
or illness of a reasonably serious nature, the prerequisite to a significant
and substantial violation under
3 FMSHRC
822, 825 (April 1981) and Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
Accordingly, we reject the Secretary's argument that the judge essentially
required a showing of an actual hazard of a significant and substantial nature
as a prerequisite to a finding of violation of section 77.200.
In addressing the Secretary's second argument, that the judge erred in
not finding that the alleged hazard was significant and substantial based on
the inspector's testimony, we find that the judge did not err.
Substantial
evidence supports the judge's finding that the weld seam crack in the dryer
bed enclosure presented no hazard to miners.
13 FMSHRC at 1473. As the
Commission has consistently recognized, the term "substantial evidence" means
"such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's) conclusion."
6 FMSHRC 1132, 1137 (May 1982) quoting
U.S. 197, 229 (1938).

975

The j
noted Inspector Dickerson's concession that there were no
hazards presented outside the dryer.
13 FMSHRC at 1473. The Secretary on
review acknowledges that it was the loss of fluidizing air current inside the
dryer unit that posed the potential hazard, not the material leaking out of
the dryer.
See PDR at 6 n.4; S. Br. at 2 n.l, 10-12. The judge further found
that the alleged hazard inside the dryer related to restricted air flow that
could result from loss of fluidizing air current. 13 FMSHRC at 1473.
However, the judge found that there was no evidence of restricted air flow.
Id.
Although U.S. Steel foreman David Walters testified that he observed a
very small, gentle flow of air escaping through a 3 to 4 inch long hairline
split in the metal lining, he stated that "it would take a large hole to short
circuit [the effect of the] two fans." Tr. 167, 169, 170. Walters testified
that a four-inch hairline crack would not short circuit the airflow and, in
view of the volume of fluidizing air current produced by the two large fans,
the effect of the split on the air current across the bed was insignificant.
Tr. 169-70. walters testified that there was no hazard of an accident or
injury to anyone. Tr. 172.
Inspector Dickerson's testimony that the alleged hazard was significant
and substantial in nature is not compelling. Dickerson, who was not qualified
as an expert witness on thermal coal dryers and claimed no specialized
experience or qualifications relating to them, stated that there was a
reasonable likelihood that a fire or explosion would occur as a result of the
loss of fluidizing air if it were unabated. See Tr. 133-35, 138. However, he
did not explain how the small amount of fluidized air seepage involved in this
instance would result in restricted air flow in the dryer and create a hazard,
nor did he testify that the crack was likely to widen, creating greater
seepage and resulting in restricted air flow.
See Tr. 138, 151, 154, 159.
Although Dickerson testified that dryer explosions were not an unusual
occurrence, there was no evidence presented that such explosions occurred in
connection with three to four inch seam leaks.
Tr. 138. Dickerson
conceded that the small amount of escap
fluidizing air would pose a hazard
only if it restricted air flow within the dryer. Tr. 159. As noted above,
the judge found no evidence of restricted air flow.
13 FMSHRG at 1473.
In short, the inspector's testimony did not prove that any hazard
existed. Thus, we hold that the judge did not err in concluding that a
violation was not established.

976

III.
~onclusion

Accordingly, the judge's decision is affirmed.

Richard V. Backley, Commissioner v

. tJ~ d.Commis~~~
Ar 1~&_
Joyce A. Doyle,

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner

Disbribution

Billy M. Tennant
600 Grant Street, Room 1580
Pittsburgh, PA 15219-4776
Jerald S. Feingold, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd
Arlington, VA 22203
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

977

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

June 25, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 90-141

v.
SOUTHERN OHIO COAL COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners

'DECISION

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act").
The
issue is whether Commission Administrative Law Judge James A. Broderick erred
in finding that Southern Ohio Coal Co. ("SOCCO") violated 30 C.F.R.
§ 75.1725(c), a mandatory safety standard applicable to underground coal
mines.
The standard provides: "[r]epairs or maintenance shall not be
performed on machinery until the power is off and the machinery is blocked
against motion, except where machinery motion is necessary to make
adjustments."
Following an evidentiary hearing, Judge Broderick found that
SOCCO had violated the standard because all affected miners working around a
conveyor belt had not been informed that the belt, which previously had been
locked-out, was going to be started.
12 FMSHRC 2503 (November 1990)(ALJ).
For the reasons set forth below, we reverse the judge's decision.

I.
Factual and Procedural Background
SOCCO operates the Martinka No. 1 Mine, an underground coal mine located
in Marion County, West Virginia.
On May 5, 1989, an eight miner crew was
extending an underground conveyor belt.
The "belt move" in this instance
involved extending the tailpiece of the conveyor belt one block (100 feet)
toward the coal face in the north main section of the mine.
The process
involved, in part, tying-off the existing belt, moving the tail piece forward,
adding additional belt, adding belt rails, and adding rollers.
Before work
began, Foreman Bill Laird and miner Sam Guido locked-out and tagged the belt

978

at the main power source.
The crew 1 then added and
iced the belt and
installed some of the top structure of the belt. The crew had not finished
installing the bottom structure.
In order to more easily install the bottom rollers, approximately 30
feet of slack needed to be removed from the belt. Laird and one of the
miners, Mike Bowman, left the area of the tailpiece to go to the headgate,
approximately 5000 feet away, in order to activate the take-up device, which
is used to tighten or add tension to the belt. Another miner, John Giordano,
travelled to an area 200 or 300 feet outby the tailpiece, to the Jabco, a
switch controlling power to the belt.
Laird pulled the take-up device to remove the slack. When Laird
discovered that the take-up device would not remove enough slack to adequately
tension the belt, he called Foreman John Gowers, who was located at the tail,
told him that the belt was going to be started, and asked him to make sure
that everything was clear. Gowers called him back and stated that everything
was clear. Tr. II 18-19. 2 Gowers then told Dempsey McHenry to have Giordano
turn on the Jabco. McHenry walked QUtby to.Giordano and relayed Gowers'
instructions, and Giordano turned on the Jabco. Gowers assumed that the other
miners had overheard his conversation with McHenry. Tr. I 32; G-Exh. 2, p. 6.
However, according to their testimony, crew members Guido, DeRosa and Renick
knew Laird was going to pull the take-up device, but they did not know that
Laird was going to start the belt. 3 Renick depo. at 25 26; Tr. I 92, 97,

127.
Laird testified that before the belt was started, he "bumped" the belt
at least twice. Tr. I 51 53; G-Exh. 2, p. 2. 4 On his way back from the
Jabco to the feeder, McHenry observed that the belt was "jumping up and down,"
at a location where "come-alongs" were still attached to the belt. 5 The
come-alongs were attached to the top of the belt at locations described as
anywhere from 40 to 200 feet from the tailpiece.
Tr. I 131; Giordano depo. at
16; Renick depo. at 12; McHenry depo. at 16. McHenry then walked back to the

1

The remainder of the crew consisted of Foreman John Gowers and miners Lou
DeRosa, Dempsey McHenry, Frank Renick, Mike Bowman, and John Giordano.
2

The transcript of the evidentiary hearing is set forth in two volumes.
Reference to the first volume is depicted as "Tr. I," while reference to the
second is "Tr. II."
3

Laird testified, however, that before he went to the headgate, he told
Guido that he would probably have to run the belt in order to take up the slack.
Tr. II 9.
4

Bumping .the belt involves jogging the belt, by turning it on and quickly
turning it off.
5
A "come-along" is a mechanical, hand-operated winch that latches and
pulls wire rope and was used by the crew to hold up the belt so that belt
structure and rollers could be installed.

979

Jabco and turned off the belt so that the come alongs could be removed.
Tr. I
130; McHenry depo. at 20, 26-27; 12 FMSHRC at 2504. After the power to the
belt was turned off, Laird again locked out and
the power box because
he knew that the crew still had to install bottom structure. Tr. II 23-24,
28.
Guido testified at the hearing that he had been sitting on the belt,
unhooking a come along that was three to five feet away from him. He further
stated that the belt started as he was getting off, caus
him to be thrown
from the belt and injuring his knee.
Tr. I 106, 108-10. 6 He testified that
he did not see the belt bump or feel it move at all. Tr. I 93. He also
stated that there was no lighting except for cap lamps and that no one saw his
injury.
On August 8, 1989, three months after this incident, James Young, an
inspector with the Department of Labor's Mine Safety and Health Administration
("MSHA"), went to the mine for an inspection and received a written request
from union representatives to investigate the incident.
Inspector Young
interviewed Dewey Ice, as well as cYewmembers Laird, Gowers, DeRosa, McHenry,
and Renick.
Inspector Young did not interview Guido because he had not yet
returned to work.
Based upon his investigation, Inspector Young concluded that the belt
had been started while still being worked on by miners who had not been
informed that it was going to be started. Tr. I 17. Accordingly, he issued a
section 104(a) citation alleging a significant and substantial ("S&S")
violation of section 75.1725(c) stating:
Based on information obtained during an accident
investigation, the safe work procedure involving
tagging and locking out machinery, when workers are
exposed to moving parts, was not in place.
Communication between the head drive and the tail
piece was neglected to the point that, the drive was
unlocked and the belt started without notifying the
employees working on the belt at the tail that the
belt fl
was going to be started.
Six to Eight
employees were working in the area, four employees
involved were not informed that the belt was to be
started ....
Citation No. 3118169.

6

Crew member Lou DeRosa testified that Guido told him that he was leaning
over to get his
oves from the belt when it started, and this information had
also been reported by Dewey Ice, SOCCO's accident prevention officer, on SOCC0 1 s
accident report form after a conversation between Ice and DeRosa. Tr. I 142; Tr.
II 30-31; G-Exh. 4.
In addition, other witnesses testified that they had not
seen the come-along next to Guido, but only saw come alongs approximately 40 to
200 feet outby the tailpiece. Tr. I 136; Giordano depo. at 16; Renick depo. at
10-12.

980

Inspector Young testified that he believed that SOCCO violated section
75.1725(c) because:
when you have people working at one area on this belt
line and you have
working down 5,000 feet away,
[and that] is where the power is disconnected or
tagged out or locked out or whatever, if you don't
tell these people up here that you're going to start
that belt, ... the part about being locked and tagged
out means absolutely nothing.
Tr. I 25. He stated that men working 5,000 feet away from the area of the
"visible disconnect" would know that it is safe to work on equipment only if
they were told so, and that he had no problem with running the belt to take
out the slack as long as there was proper communication and the crew was in a
safe position. Tr. I 59, 69.
The citation was terminated by Inspector Young when SOCCO planned "a
safety talk at their meeting [in which]
were going to go over with the
foremen about starting up procedures and this type of thing." Tr. I 59 60.
In addition, the action to terminate is described on the citation form as,
"[a]ll parties involved in the investigation, agreed upon the importance of
proper communication between work sites, and the review of accidents at this
mine site." Citation No. 3118169.
Following an evidentiary hearing, the judge found that SOCCO had
violated section 75.172~(c) and that the violation was S&S.
In reaching his
finding of violation, the judge first determined that the activities involved
in extending a belt constitute "maintenance" within the meaning of section
75.1725(c).
12 FMSHRC at 2505.
The judge also stated:
The evidence . . . is clear that neither Gui.do nor
DeRosa were informed that foreman Laird was go
to
start the belt. Although motion of the belt is
necessary to make adjustments, it obviously cannot
safely be accomplished while the belt is
worked
on. All the affected miners must be informed if a
belt which has been locked out is going to be started
up. This was not done here.
I conclude that a
violation of 30 C.F.R. § 75.1725(c) has been
established.
12 FMSHRC at 2506.
The j
then found that ":mJ
repairs or adjustments on a belt
while the belt is moving is a serious violation,
and that the violation was
properly designated as being S&S.
. The judge assessed a civil penalty of
$300
t SOCCO, rather than the $276 penalty proposed by the Secretary.
12 FMSHRC at 2507.
The Commission subsequently granted SOCCO's petition for
discretionary review, in which SOCCO challenged
the judge's finding of
violation, and we heard oral argument.
On review, SOCCO notes preliminarily
that there must be repair or maintenance being performed for there to be a
11

981

violation; that, in any event, the standard has no notice requirement; and
finally, if a notice requirement can be read into the standard, SOCCO's
practice of "bumping" the belt satisfied the requirement.
PDR at 2-3.

II.
Disposition of Issues
Under section 75.1725(c), power to machinery must remain off until
repairs and maintenance are completed, unless power is necessary to make an
adjustment. Not all tasks are covered by the standard; it applies only where
repairs or maintenance are being performed. Here, it is undisputed that the
crew was engaged in a belt move at the time the belt was started, and that the
belt move had not been completed.
Tr. I 24, 98; Tr. II 24, 28.
When determining whether SOCCO violated section 75.1725(c), the judge
preliminarily considered whether "maintenance" was being performed while power
was turned on to the belt. 7 The judge concluded that the work involved in
extending the belt constituted maintenance within the meaning of the standard.
12 FMSHRC at 2505.
In his finding 'of fact IV, the judge described the
progress made in the belt move process an"d the work still to be completed.
12 FMSHRC at 2504.
The judge found that "the action in extending the belt
described in finding of fact IV constitutes maintenance on machinery as that
term is used in [section] 75.1725(c)." 12 FMSHRC at 2505. The judge also
found that extending the belt system involves "adding and adjusting activities
which constitute maintenance." 12 FMSHRC at 2506.
On review, the Secretary focuses on Guido's and DeRosa's activities when
the belt started and states that, at the time that power to the belt was
turned on, Guido was working on the belt and DeRosa was working in close
proximity to the belt.
S. Br. at 7. In response, SOCCO argues that there is
no basis for an allegation that maintenance work was being performed while the
t was in operation.
Soc.
. Br. at 7.
agree with the j
that the preliminary question is whether the
belt move constitutes maintenance within the meaning of the standard. The
j
first noted that the term "maintenance" is defined in the dictionary as
"[t]he act of continuing, carrying on, preserving or retaining something .
[t]he work of
ing something in proper condition." 12 FMSHRC at 2506
(citation omitted). He then turned to a thesaurus which listed as synonyms
for maintenance:
"l. preservation, upkeep, annual upkeep, keeping up; 2.
continuance, continuity, extension, prolongation; perpetuation, persistence,
perseveration, repetition." Id. (citation omitted). From this, the judge
concluded that the belt move constituted maintenance because extending it
activities."
involved "adding and
us
We find that the judge's literal application of the word "extension" is

Neither
contends that "repairs" were involved in this case and the
evidence is undisputed that the crew was not engaged in making repairs when power
was returned to the belt. Tr. I 62 64. The judge's decision involves only the
issue of "maintenance."

982

out of context with the essence of the term maintenance.
That essence, as the
dictionary indicated, is that maintenance means "the labor of keeping
something (as buildings or equipment) in a state of repair or efficiency:
care, upkeep .
[p]roper care, repair, and keeping in good order .
[t]he upkeep, or preserving the condition of property to be operated." See
Webster's Third New International Dictionary, Unabridged 1362 (1971); A
Dictionary of Mining, Mineral. and Related Terms 675 (1968); and Black's Law
Dictionary 859 (5th ed. 1979).
The record reveals that the belt move was not designed to prevent the
belt from lapsing from its existing condition or to keep the belt in good
repair but, rather, to increase its usefulness to SOCCO.
Inspector Young
acknowledged that no work was performed on May 7, 1989, to keep the belt in
the same condition that it was in the day before, that no "deteriorating
condition" was being "upgrad[ed] ,"and that the belt would run without adding
additional length to it.
Tr. I 64.
Inspector Young explained that the belt
haulage system runs coal to the tailpiece and, as the face advances, the tail
piece would be "farther than the haulage would allow," if the belt were not
also advanced. 8 Tr. I 20.
By adding new structure to extend the belt, SOCCO's miners were not
engaged in the upkeep, preservation or maintenance of the existing belt.
The
evidence reveals that the belt move did not preserve the ability of the
existing belt to convey material.
The belt was not in need of upkeep.
Instead, the belt move was an improvement of the belt system, extending it and
shortening the distance between the belt's feeder and the working face.
Accordingly, we reverse the judge's holding that the belt move engaged in by
SOCCO constituted maintenance within the meaning of the standard.
Even if we were to assume for the sake of argument that the belt move
constituted maintenance, we would reverse the judge's decision because his
holding regarding warning requirements for conveyor belt start-ups is
erroneous as a matter of law.
While we share the judge's concern that
adequate warning be given before a conveyor belt is started in order to assure
the safety of miners, we find no indication that section 75.1725(c) requires
such warning.
The Commission has consistently recognized that a safety standard must
"give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly." Lanham Coal Co., Inc.,
13 FMSHRC 1341, 1343 (September 199l)(citations omitted).
The Commission
further explained that:
When faced with a challenge that a safety
standard failed to provide adequate notice of
prohibited or required conduct, the Commission has
applied an objective standard, i.e., the reasonably

8

Typically, a shuttle car or ram car hauls coal from the working face to
a "feeder," which is located at the tail of the belt.
The coal is dumped onto
the feeder, which feeds coal onto the tail of the conveyor belt.
Tr. I 74.

983

prudent person test.
The Commission recently
swnmarized this test as "whether a reasonably prudent
person familiar with the mining industry and the
protective purposes of the standard would have
recognized the specific prohibition or requirement of
the standard."
(citations omitted).
Section 75.1725(c) does not give a reasonably prudent person notice that
it prohibits the cited conduct.
The plain language of section 75.1725(c)
expressly sets forth requirements for blocking and turning off power to
machinery, but does not set forth any requirements regarding conununication to
miners before power is returned.
Indeed, Inspector Young testified that the
section "doesn't read that you must tell somebody [that the belt] is going to
start." Tr. I 59.
Instead, he explained that "the general law is to make
sure that when people are working on [a belt], it's not going to start." Id.
We conclude that a reasonably prudent person would not have known that the
standard requires that miners be al·erted before power is returned to machinery
in underground coal mines. 9
It is significant that the Secretary has set forth in 30 C.F.R. Parts
56, 57 and 77 specific requirements for providing adequate warning before
conveyor belts are started for every type of mine except underground coal
mines.
30 C.F.R. §§ 56.14201, 57.14201, 77.1607(bb). 10 While Parts 56,
57 and 77 also provide blocking and locking out requirements for other types
of mines similar or identical to those set forth in section 75.1725(c), the
Secretary does not rely upon those standards to provide warnings applicable to

9

Even if we were to assume that the standard requires such warning, a
reasonab
prudent person
not have known that bumping the belt, apparently
a common practice in underground coal mines, is not considered an adequate
the Secretary. In fact, Inspector Young considered bumping a belt to
be a warning, and stated that a belt is normally bumped to alert miners that it
might be started. Tr. I 52.
10

For example,
warnings," provides:

30

C.F.R.

§

56 .14201,

entitled

"Conveyor

(a) When the entire length of a conveyor is
visible from the starting switch, the conveyor
operator shall visually check to make certain that all
persons are in the clear before starting the conveyor.
(b) When the entire length of the conveyor is
not visible from the starting switch, a system which
provides visible or audible warning shall be installed
and operated to warn persons that the conveyor will be
started. within 30 seconds after the warning is
, the conveyor shall be started or a second
warning shall be given.

984

start-up

starting conveyor belts.
30 C.F.R. §§ 56.14105, 57.14105, 77.404(c).
The
specific start-up warnings required by the standards for other
of mines
cannot be read into the
language of section 75.1725(c), applicable to
underground coal mines. To do so, as
by the Sec
, would not meet
the test set forth in Lanham Coal Co., Inc., 13 FMSHRC at 1343, nor serve the
interests of safety. As the court stated in Dravo Corp. v. OSHRC, 613 F.2d
1227, 1232 (3rd Cir. 1980):
To strain the plain and natural meaning of words
for the purpose of alleviating a perceived
hazard is to delay the day when the ...
health regulations will be written in clear and
concise language so that employers will be better able
to understand and observe them.
Id., quoting Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649-50 (5th Cir.
1976).
For the reasons discussed above, we conclude that the judge erred, in
finding that the belt move in which SOCCO was engaged constituted maintenance
within the meaning of section 75.1725(c), and in finding that the standard
requires warning to affected miners before a previously locked-out belt is
started.

985

III.

Conclusion
For the reasons set forth above, we reverse the judge's decision and
vacate the citation.

Richard V. Backley,

C~

L. Clair Nelson, Commissioner

Distribution:
David M. Cohen, Esq.
American Electric Power
Service Corporation
P.O. Box 700
Lancaster, OH 43130-0700
Susan E.
, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Judge James H. Broderick
Federal Mine Safety and Health
Review Commission
5203 Leesbur~ Pike
Suite 1000
Falls Church, VA

22041

986

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

June 29,

IN RE:

1992

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

BEFORE:

20006

MASTER DOCKET NO. 91 1

Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners

DECISION

BY:

The Commission

In this consolidated civil penalty and review proceeding arising under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~·
(1988)(Mine Act), the Commission, on November 13, 1991, granted petitions for
interlocutory review filed by the Secretary of Labor ("Secretary") and
operators represented by the law firm of Jackson & Kelly ("contestants"). The
proceeding before the administrative law judge arises from a dispute between
the Secretary and approximately 500 operators alleged to have altered
respirable dust samples. On April 4, 1991, the Mine Safety and Health
Administration (MSHA) issued approximately 4,700 citations charging such
alterations.
The operators contested the validity of the citations. The
judge issued a prehearing order which,
the Secretary to
compile a list of documents in her possession that may be relevant, including
an itemized list of documents the Secretary claims to be privi
or
otherwise nondiscoverable.
In response thereto, the Secretary produced a
Generic and Privileged Document List (Document List) which, in its amended
form (September 25, 1991), contains a listing and description of 449
docwnents, including 67 documents the Secretary claims are privileged.
After receiving a series of discovery related motions from the parties,
the j
issued three orders, 1 which required the
to produce eight
docwnents notwithstanding her claims of privilege and upheld the Secretary's
privilege claims as to 52 documents.
The Secretary filed a motion seeking the
judge's certification of this case for Commission interlocutory review.
The
judge denied the motion.
On October 21, 1991, the Secretary filed the instant
petition for interlocutory review insofar as she is ordered to produce six of
the e
documents.

1

The pertinent orders of the judge are dated: September 13, 1991, 13
FMSHRC 1573 (Order l); September 27, 1991, 13 FMSHRC 1611 (Order 2); and October
7, 1991, 13 FMSHRC 1750 (Order 3).

987

Thereafter, contestants filed a petition seeking interlocutory review of
the same three orders, asserting that the judge erred in upholding the
Secretary's privilege claims as to 52 documents.
On November 13, 1991, the Commission granted both petitions for
interlocutory review.
I.

The Secretary challenges the judge's rulings on two grounds: (1) that he
erred in
ecting the Secretary's claim of deliberative process privilege,
and, (2) that he erred in failing to rule on her claim of work product
privilege.
A.

Deliberative Process Privilege

In Order 1, the judge set forth a brief general explanation and
description of the deliberative process privilege.
The judge then
specifically evaluated documents cUfimed by the Secretary to be within the
deliberative process privilege, including each of the five documents presently
claimed to be privileged (Nos. 3, 365, 366, 367, and 401).
The judge
determined that each of the five documents was privileged as part of the
deliberative process of the agency.
In Order 2, the judge ordered the Secretary to disclose a number of
privileged documents including the five in issue.
In reaching his conclusion,
the judge stated:
Documents for which claims of 'executive privilege' or
attorney work product privilege are upheld may
nevertheless be ordered produced if necessary to the
opposite party's case.
In such a case, I must
consider whether 'need for access to the docwnents, or
any part of the documents, for purposes of this
litigation must be overridden by some higher
requirement of confidentiality.'
(citations omitted.)

Order 2 at 4.
The judge also cited the Commission's decision in the case of Secretary
of Labor/Logan v. Bright Coal Company, Inc., 6 FMSHRC 2520 (1984), noting that
in considering whether documents protected by the "informer's privilege"
should be ordered disclosed, the Commission placed the burden on the party
disclosure, requiring a showing that the information sought be
essential to a fair determination of the case; that consideration should be
to whether the Secretary is in sole control of the material sought, and
whether the party seeking disclosure has other avenues available to it to
obtain the material.
In applying the foregoing, the judge concluded as to each of the five
documents that "the material sought is, for the most part, in the sole

988

possession of the Secretary, and the operators do not have other means of
obtaining it or its equivalent." Id. at 4, 5.
The judge also set out four guidelines by which he would determine
whether "to order disclosure of privileged documents." Id. at 5. Only
guideline three is pertinent here:
Other documents for which the claim of executive
privilege was upheld will be ordered disclosed to the
extent that they are factual and deal with matters
which are completed rather than those still pending.
The judge then considered each document separately, applying the
aforementioned guideline and concluded as to Document 3 (and others not in
issue):
These docwnents were held privileged as part of the
deliberative process. However, they appear to be
factual in nature although in draft form.
They are
exclusively in the Secretary's control, and are
clearly relevant and important, indeed are close to
the core issue of this case.
Since the final report
has been prepared, these documents relate to a
completed matter.
I hold that their disclosure is
essential to a fair determination of this case and
this overrides the Secretary's interest in
confidentiality.

These docwnents do contain deliberations and opinions,
but they precede the Report on sample filter
abnormalities (Document No. 2), and therefore are
related to a completed rather than a pending matter.
Id.
Document 401
This is a draft of study PHTC prepared prior to the
report identified as Document No. 1.
For the reasons
given in my discussion of Documents 365, 366 and 367,
this document will be ordered disclosed.
Id.
Accordingly, the five documents in issue were ordered disclosed.
The
Secretary filed a motion seeking reconsideration of Order 2.
The Secretary
also submitted the subject documents for in camera inspection.
The judge granted the motion for reconsideration, reviewed the documents
in camera and issued Order 3, wherein he again ordered the disclosure of the
five documents in issue.
The Secretary disputes the judge's determination to compel disclosure on

989

two grounds.
1.
that the judge misapplied the law when he ordered disclosure of
all docwnents that relate to a completed matter, erroneously assuming that the
deliberative process privilege expires once the reports were completed.
2.
that the judge erred in not requiring contestants to make a
specific factual showing demonstrating that disclosure of the documents is
essential to their defense.
She asserts that in fact no such need exists
because the operators have been provided with the final reports; they will
have an opportunity to depose the Secretary's experts regarding the basis for
their conclusions; and they will have the opportunity to cross-examine the
experts at trial.
Contestants assert that the documents played no role in the development
of agency policy, rules or regulations and that therefore the deliberative
process privilege does not apply to the documents in issue.
Contestants also
argue that even if privileged, once incorporated by reference into the
relevant report, the communications'"1cise the privilege and are subject to
discovery.
Contestants urge that the judge was correct in balancing the needs of
the parties and concluding that contestants' need overcame the Secretary's
interests.
The documents related to fundamental issues in the case -- how the
government defines an abnormal white center (AWC) and how the government
determines whether to cite an operator for an AWC. As such, they claim
disclosure is essential to contestants' defense.
Contestants also urge that
the Secretary's argument that contestants' need has not been demonstrated
fails to recognize that the judge has made an in camera inspection and "was
able to see for himself the obvious materiality and relevance of these
documents to the primary issues in the case and to determine that these
documents were necessary to the development of contestants' defense."
Response Br. at 20.
1.

Disposition of Issues

Inasmuch as application of the deliberative process privilege is an
issue of first impression for the Commission, a brief historical perspective
may be noted.
In setting forth the reasoning supporting his dissent in Nixon v.
Sirica, 487 F.2d 700 (1973), Circuit Court of Appeals Judge Wilkey, inter
alia, traced the origins of the privilege of confidentiality, or executive
privilege, terms which refer to what is presently described as the
government's deliberative process privilege:
Tha oldest source of Executive Branch privilege, the
common sense-common law privilege of confidentiality,
existed long before the Constitution of 1789, and
might be deemed an inherent power of any government
... Historically, apart from and prior to the
Constitution, the privilege against disclosure to the

990

public . . . arises from the undisputed privilege that
not all public business can be transacted completely
in the open, that public officials are entitled to the
private advice of their subordinates and to confer
among themselves privately and frankly, without fear
of disclosure, otherwise the advice received and the
exchange of views may not be as frank and honest as
the public good requires.
Id. at 763, 764.
The Freedom of Information of Act, 5 U.S.C. § 552 (1970)("FOIA")
represents the codification of "this age old, common sense-common law
privilege." Id. at 765. The FOIA was enacted "to assure the American public
that necessary access to Governmental information, and to prohibit the abuse
of so-called 'Executive privilege"' Id. at 766. However, the FOIA contains
categories of documents or information that are exempt from disclosure, which
represents a Congressional determination that "if the material sought falls
within one of these seven exemptions, the public interest in maintaining
confidentiality outweighs the public.interest in the right to know
Governmental affairs." Id. at 766.
In construing the pertinent FOIA Exemption 5 2 , the Supreme Court
stated:
That Congress had the Government's executive privilege
specifically in mind in adopting Exemption 5 is clear
(citations omitted) . . . The cases uniformly rest the
privilege on the policy of protecting the 'decision
making process of government agencies' (citation
omitted), and focus on documents 'reflecting advisory
opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and
policies are formulated.'
(citations omitted).

The Court went on to endorse the Senate Report (citation omitted) in
concluding that "'frank discussion of legal or policy matters' in writing

2

5 U.S.C. § 552 reads in part:
"(a) Each agency shall make
information as follows:
"

available

to

the public

"(b) This section does not apply to matters that are

"·
"(5) inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other
than an agency in litigation with the agency."

991

might be inhibited if the discussions were made public; and that the
'decisions' and 'policies formulated' would be the poorer as a result."
.:=.=.;:;;___==~Kaiser Aluminum & Chemical Corp. v. U.S., 157 F. Supp. 939, 946

(1958).
The breadth of the privilege is described by the court in Jordan v. U.S.
=""-"'-''----"'-=-""-="'-==' 591 F.2d 753 (D.C. Cir. 1978):
This privilege protects the 'consultative functions'
of goverrunent by maintaining the confidentiality of
'advisory opinions, recommendations and deliberations
comprising part of a process by which goverrunental
decisions and policies are formulated' (citations
omitted). The privilege attaches to inter and intraagency communications that are part of the
deliberative process preceding the adoption and
promulgation of an agency policy.
Id. at 772.
The test for a proper claim to the privilege was described:
the document must be 'pre-decisional.' The privilege
protects only communications between subordinates and
supervisors that are actually antecedent to the
adoption of an agency policy .... The communication
must be 'deliberative,' that is, it must actually be
related to
process by which policies are
formulated.
at 774.
Contrasted against this construction, contestants argue that the
documents in issue, drafts and conunents
drafts of reports, are
outside of the zone of the privilege, although at the same time
concede
that the reports, i.e., the two documents that evolved from the disputed
documents, "may arguably have been the subject of deliberation by the agency."
Response Brief at 16.
It is difficult to embrace the proposed parsing of conduct advocated by
contestants. The description of the documents offered by the Secretary, and
the conclusions drawn by the judge after his in camera review of the
documents, seem to confirm that the documents were deliberative and fall
within the zone of the privilege.
In concluding that contestants' need for
the documents outweighs the Secretary's interest in keeping them confidential,
the j
reasoned that fairness to the contestants "demands that they be
apprised not only of the final report, but also the deliberations, Government
suggestions, changes and revisions that led to the final report." Order 3
at 3.
In National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114
(9th Cir. 1988), the court was presented with a similar attempt by a plaintiff

992

to narrow the zone of communication that might qualify under Exemption 5 of
the FOIA.
Plaintiff argued that '"to qual
under Exemption 5, the documents
must not only be predecisional and deliberative, but [must] also contain nonbinding and advisory recommendations regarding law or policy: opinions or
recommendations regarding facts or consequences of facts [are] not ...
exempt.'" Id. at 1117. The court rejected this attempt to parse the
privilege beyond the bright lines set by the Supreme Court.
Citing E.P.A.
Agency v. Mink, 410 U.S. 73 (1973), the court noted that the Supreme Court
"has recognized a distinction only between 'materials reflecting deliberative
or policy-making processes on the one hand, and purely factual, investigative
matters on others.'" Id. at 1118.
Thus, contestants' assertions that the disputed documents "are not part
of the decision making process" but merely "part of the factual predicate for
the decision to issue citations" should be rejected. Response Brief at 16.
Accordingly, we reject contestants' argument that the disputed documents fall
outside the zone of the privilege, and affirm the judge's conclusion that the
documents are deliberative.
a.

Did the judge err in ruling that documents relating to
completed matters falls outside the privilege?

As previously described, in his second Order, the judge set out an
additional guideline for determining the applicability of the deliberative
process privilege to docwnents, based on their factual content and their
dealing with completed rather than pending matters. Order 2 at 5. The judge
supplied no authority for this guideline.
We interpret the guideline to include two indeoendent bases on which
disclosure would be ordered: (1) if the documents were factual; or (2) if the
documents related to completed matters. The judge's ruling regarding
docwnents 365, 366, 367 demonstrates this construction.
In applying the
guideline, the judge found the documents to contain "deliberations and
opinions," not facts.
However, they were ordered disclosed because they were
related to a completed, rather than a pending matter.
Factual docwnents are not at issue here.
The case law is clear: purely
factual material that does not expose an agency's decision making process does
not come within the ambit of the privilege.
Exxon v. Doe, 585 F. Supp. 690,

698 (D.C. 1983).
In an apparent attempt to support the judge's conclusion regarding
completed matters, contestants cite Sears, 421 U.S. 132:
[I]f an agency chooses expressly to adopt or
incorporate by reference an intra-agency memorandum
previously covered by Exemption 5 in what would
otherwise be a final opinion, that memorandum may be

withheld only on the ground that it falls within the
coverage of some exemption other than Exemption 5.

993

at 161.
Many courts, in applying the
limitation narrowly:

holding, have construed the court's

If the segment appeared in the final version, it is
already on the public record and need not be
disclosed.
If the segment did not appear in the final
version, its omission reveals an agency deliberative
process.... But such disclosure of the internal
workings of the agency is exactly what the law forbids
(citations omitted).
610 F.2d 70, 86 (2nd Cir.

1979).
We conclude that the disputed guideline adopted and relied upon by the
judge in Order 2 restricts the applicability of the deliberative process
privilege more than was contemplat~_dby the Supreme Court. Accordingly, we
conclude that the guideline is legally unsupported. The judge incorrectly
concluded that documents dealing with completed matters automatically fall
outside the privilege.
Furthermore, there is no finding by the judge that the
disputed documents have been expressly incorporated into the final report.
b.

Although in Order 2 the judge applied the wrong standard by relying upon
the above referenced guideline in ruling that disclosure was required because
the documents "deal with matters which are completed rather than those still
pending," we conclude that this error was harmless.
After the issuance of Order 2, the Secretary filed a motion for
reconsideration, wherein,
, she challenged the judge's guideline.
The Secretary cited several cases supporting her contention that the privilege
for predecisional agency deliberation continues to exist notwithstanding the
fact that the documents relate to a matter that has been completed. Motion at
3 -LL
The judge granted the motion, and for the first time viewed the disputed
documents
He then issued Order 3. Although the judge did not
refer to the Secretary's challenge to his guideline, he did not repeat the
disputed guideline in his order, nor did he indicate any reliance upon it.
In
Order 3, the judge provided a precise, detailed basis for his determination.
The judge
concluded that the documents are within the scope of the
pr
but, he determined that, when balanced between the Secretary's need
for confidentiali
and the contestants' need for a fair defense, the
's need must give way.
In viewing the judge's reasoning on this
issue, we conclude that he ultimately supported his order to disclose, not on
the disputed guideline of Order 2 but, rather, by properly applying the
balancing test adopted by the Commission in Bright, suprq.
Specifically, in
the case at bar, the judge found that:

994

Contestants have asserted that the documents in
question directly relate to the central issue of this
case, that they are exclusively in the possession of
the Government, and that they consist of largely
factual material.
The Secretary has not denied the
first two assertions.
The litigation before the Commission involves the
Government's charge that the mine operators tampered
with respirable coal mine dust samples. This
contention is based in part on the study and report
prepared by west Virginia University.
I conclude that
fairness to the operators (and in the Commission's
interest in fairly deciding these cases) demands that
they be apprised not only of the final report, but
also of the deliberations, Government suggestions,
changes and revisions that led to the final report.
I
do not believe that the disclosure of the documents
will compromise governm~?t policy deliberations.
The
operators' need for the documents outweighs the
Secretary's interest in keeping them confidential.
Order 3 at 1-3.
The
to make a
defense.
documents

Secretary further argues that contestants should have been required
specific showing demonstrating that disclosure is essential to their
This point is effectively moot.
The judge has viewed the disputed
and has concluded that they are essential to contestants' defense.

Accordingly, we conclude that the judge properly acted within his
discretion, 3 and therefore we affirm his order requiring disclosure ~f the
documents, notwithstanding the Secretary's assertion of its deliberative
process privilege.

B.
The Secretary has sought interlocutory review of the judge's orders
requiring production of six documents (Nos. 3, 365, 366, 367, 401 and 424) on
grounds that the documents are protected from disclosure by the work product
privilege. 4
As previously noted, the judge issued three orders relevant to this
proceeding. Order 1 contains no indication that the judge considered whether
the documents in issue fell within the work product privilege. After setting
forth relevant case law regarding each of the privileges asserted by the

3

See Part II B, slip op. at 17, regarding generally the judge's
discretion and the Commission's standard of review.
In her brief to the Conunission the Secretary concedes that she
inadvertently failed to assert the work product privilege as to Document No. 3.
Brief at 4.

995

Secretary, the judge individually referenced and evaluated a large number of
documents, including those in issue. As to each of the documents individually
evaluated, the judge provided a brief description, and a ruling regarding the
asserted privi
(s). Notwithstanding the Secretary's assertion of the work
product privilege as to the documents in issue, Order 1 contains no comment or
ruling on the work product privilege.
In that order, however, the judge
concluded that each of the six documents was protected from disclosure by
virtue of the deliberative process privilege.
Order 2 contains the judge's reversal of his previous decision regarding
the application of the deliberative process privilege as to the six documents
in issue.
However, once again he did not rule on the work product privilege.
Order 3 contains the judge's reconsideration and affirmance of his
ruling in Order 2 to compel disclosure of the documents previously determined
to be protected by the deliberative process privilege. Again, there is no
comment or ruling regarding the Secretary's asserted work product privilege.
The Secretary argues that the judge's failure to rule on her claim of
work product privilege is "an abuse of discretion and grounds for a Commission
order in the nature of mandamus directing the ALJ to decide the Secretary's
claims." Brief at 16. The Secretary also sets forth an extensive analysis of
the merits of the claimed privilege.
Contestants argue that the Secretary waived her right to assert the work
product privilege.
They argue that the Secretary failed to raise the work
product privilege issue in her motion for reconsideration filed after the
judge issued Order 2 compelling disclosure of the documents.
Contestants argue that, when viewed as a whole, the judge's three orders
effectively constitute a ruling on all the privileges but "if the judge
decided that the other claimed privileges did not apply to protect the
document from production, he simply did not note the application of that
Response Brief at 29.
Contestants further argue that the analysis made by the judge regarding
the deliberative process privilege was the same analysis required for the work
product privilege and that therefore his failure to expressly deal with the
work product privilege was harmless.
at 25.
Finally, contestants also argue that the privilege does not apply to the
documents in issue.
1.

Did the judge fail to rule on the Secretary's asserted claim of
work product privilege?

Not only did the judge fail to expressly rule on the work product
privilege in his three orders, but contrary to the arguments of contestants,
he did not effectively rule on that privilege. The judge's description of the
documents and his consequential findings and conclusions deal with the
deliberative process privilege. The judge's analysis lacks discussion
specifically pertaining to the work product privilege and fails to apply the

996

guideline he set forth regarding the work product privi
Documents for which the claim of work product
privilege was upheld will be ordered disclosed to the
extent they are factual and do not include mental
impression, conclusions, opinions or legal theories.
Order 2 at 5. The judge's orders did not discuss whether the documents
contained legal theories or mental impressions
elements that are clearly
unique to the work product privilege.
Contestants, however, would have the Commission conclude that, since the
deliberative process privilege and the work product privilege contain
overlapping elements, and since the analysis regarding contestants' need for
the documents is essentially the same as that underlying consideration of the
deliberative process privilege, we should view the judge's disposition
regarding the deliberative process privilege as dispositive of the work
product privilege. To do so however, would ignore the consideration that
because the work product privilege exists for unique reasons, a different
result might obtain.
Consequently, 'ii separate analysis is required.

In
Commission recently ruled in a similar situation, wherein the Secretary urged
multiple privileges for a particular document, and the judge failed to rule on
all of the asserted privileges.
The Commission was invited by the Secretary
in that case, to draw an inference from the judge's failure to directly rule
on a particular privilege.
The Commission resisted then, as it does now:
The Secretary maintains that the judge's failure to
rule indicates that he determined that the subject
statements should not be provided. We cannot make
this assumption on the existing record, and remand
this issue to the judge for his reconsideration in
accordance with this decision and
12 FMSHRC at 2557.
Accordingly, we conclude that the judge did not expressly rule on the
work product
and that the judge's analysis of the deliberative
process privilege cannot be construed to dispose of the work product privilege
issue.
2.

Did the Secretary waive her right to the privilege?

Contestants properly note that, after issuance of Order 2, wherein the
judge ordered disclosure of the docwnents based upon his rejection of the
Secretary's deliberative process privilege claim, the Secretary filed a motion
for reconsideration that did not mention the judge's failure to address the
asserted work product privilege.
To evaluate the effect of this action by the Secretary, it is important
to view the motion in context. The judge's initial response (Order 1) to the

997

Secretary's privilege assertions was positive. Although the Secre
had
advanced rnult le bases for nondisclosure, the judge, relying upon only one of
those bases, granted the Secretary the ruling she sought.
Thus the documents
in issue were protected from disclosure by virtue of the judge's conclusion
that the deliberative process privilege obtained.
In Order 2, the judge reversed himself and concluded that, although the
documents were privileged as deliberative, that privilege must fall away if
the documents related to a completed matter.
The judge did not rule on the
work product privilege. The Secretary promptly responded with a motion for
reconsideration.
She challenged the basis of the judge's ruling regarding the
deliberative process privilege and submitted the documents for an in camera
inspection.
The motion contained no mention of the work product privilege,
nor is there any indication that the Secretary intended to abandon her earlier
asserted claim of work product privilege.
Indeed, it would have been
premature to seek reconsideration of a ruling that had not yet been rendered.
Accordingly, we find contestants' waiver argument to be unpersuasive.
Also unpersuasive is contestants' attempt to draw support from the
Commission's ruling in Wilmot Minin:g Co., 9 FMSHRC 684 (1987).
In that civil
penalty proceeding the judge directed the parties to explore settlement.
Notwithstanding a proposed settlement agreeable to the parties, the judge
conducted a hearing and offered no explanation for his apparent rejection of
the settlement offer. Wilmot argued to the Commission that the settlement
offer was improperly rejected.
The Commission noted that:
Wilmot apparently never objected to the judge's
procedure in going forward with the hearing.
It did
not object at the hearing or argue this point to him
in its post-hearing brief.
Failure to object in a
timely manner to an alleged procedural error
ordinarily waives the right to complain of the error
on appeal ....
at 686.
In the instant case, the Secretary has acted timely.
She has been
ordered to disclose documents for which she has claimed several privileges but
the judge has ordered disclosure without ruling on one of the privileges
asserted.
The Secretary is under no obligation, under the Commission's rules,
to re assert the claim of privilege before seeking interlocutory review of the
j
's failure to rule on the claim.
Accordingly, we conclude that the judge failed to rule on the
Secretary's claim of work product privilege and we therefore remand this
matter to the judge.

998

II.

Contestants seek interlocutory review of the same three orders of the
judge insofar as they uphold the Secretary's claim of privilege as to fiftytwo documents. 5
Contestants rest their challenge on four grounds: (1) the Secretary's
assertion of the privileges was improperly invoked and should not have been
allowed; (2) the judge failed to require the Secretary to furnish sufficient
factual material in support of her claimed privileges; (3) the judge failed to
properly apply the claimed privileges to the documents in issue; (4) the
judge's orders prevent meaningful review because they lack sufficient factual
detail and analysis.
A.

Issues
l.

Was the Secretary's assertion of the privileges
properly invoked?

The Secretary's assertion of various privileges is contained in the
Document List dated June 21, 1991. 6 The descriptions of the documents and
the bases for the claimed privileges contained therein are further augmented
in the Secretary's opposition to motion to compel discovery, 7 and in two
affidavits dated August 30, 1991. 8
The affidavits were filed in response to the judge's order to the
Secretary (August 22, 1991) requiring that she reply to contestants'
contention "that privileges must be formally asserted by the agency head after
personal consideration of the documents for which privilege is claimed."
Order 1 at 1-2.
The first affidavit, from the Deputy Assistant Secretary for Mine Safety
and Health of the Department of Labor, states that he is authorized to act on
behalf of the agency in enforcement matters and that he has reviewed the
documents for purposes of determining whether to assert a governmental
privilege. The affiant then formally asserts four specific privileges
(deliberative, investigative, attorney-client, and work product) to

5
Although contestants reference fifty one documents, the Secretary
states she assumes contestants inadvertently omitted one additional document,
placing fifty-two documents in issue.
Response Brief at 8, fn. 8.
6

A copy of the amended list dated September 25, 1991 has been
furnished to the Corrunission.
See Appendix to Secretary's Response Brief,
Exhibit 1.
7

Id. , Exhibit 2.

8

Id., Exhibit 3.

999

specifically enumerated documents, setting forth the bases for each claim of
privilege.
The affiant also determines not to assert a privilege as to
certain documents. 9
The second affidavit is from a Supervisory Industrial Hygienist for MSHA
authorized by the agency to serve "as an agent of more than one federal grand
jury investigating allegations of the alteration of the weight of coal dust
samples ... in accordance with Rule 6(e) of the Federal Rules of Criminal
Procedure. " 10
In ruling on the Secretary's assertion of the privileges in Order 1, the
judge traced the relevant case law, including Commission precedent and
concluded:
the claim of executive privilege invoked here by a
high level official of the Department of Labor who has
direct responsibility for the matters involved after
personal consideration of the documents, is sufficient
formal claim of privilege when coupled with the
Secretary's offer to submit the documents (except
those for which grand jury immunity is claimed) for
camera inspection.
Order 1 at 5.
Contestants argue that the invocation of the claim of privilege must be
made by the Secretary of Labor or by a high ranking subordinate who has been
formally delegated the task, and who has been furnished with guidelines on the
use of the privilege.
Because Secretary Lynn Martin has not herself invoked
the privilege, nor formally delegated that task, contestants argue that the
judge erred in accepting "a substitute procedure that does not meet the
requirements of the law." Brief at 17.
The Secretary argues that she properly invoked the claims of privilege
and, in doing so through the use of two affidavits, exceeded the requirements
under Commission precedent.
Disposition
The
is of the j
demonstrates that he properly recognized and
understood the basis for the requirement that executive privilege be invoked
by "a responsible government official" and not merely by trial counsel.
Order
1 at 5. He recognized that privilege claims should be narrowly construed and
not lightly claimed.
Case law seems to reflect a concern that the claim of
government privi
not be left merely to trial counsel, whose judgment might

9

Id. at A-105.

10

at A-106.

1000

be "affected by their interest in the outcome of the case. 011 In this case,
a high ranking official of the agency formally invoked the privilege and,
contrary to contestants' assertion, did not "merely restate Secretary's
Counsel's privilege assertions." 12 Brief at 15. The affidavit of the Deputy
Assistant Secretary contains a listing of docwnents that he determined were
not privileged. As such, the underlying rationale for formal invocation of
the privilege is essentially satisfied.
The judge entertained contestants' argument and concluded that the
quality of the invocation in this case was sufficient to afford contestants
the protection required.
In doing so, the judge also relied upon the
Commission's holding in Bright, 6 FMSHRC 2520, which essentially recognized
that, although authority exists requiring a formal claim of privilege by the
department head in order to invoke the informant's privilege, most cases do
not address whether the privilege was formally raised.
The judge concluded
that "to require that she (the Secretary) personally consider all the
documents in these cases and invoke privileges such as are claimed in this
administrative proceeding is ... neither practical nor necessary." Order 1 at
5. We agree, and therefore affirm the judge's ruling.
Administrative Law Judge's Dispositions as to Contestants' Issues 2, 3, and 4
After receiving and reviewing the Secretary's document list and the two
affidavits described above, the judge, in Order 1, referenced appropriate
procedural law and case law regarding discovery and privilege in general, and
then set forth the pertiuent case law and the principles derived therefrom
regarding each of the specific privileges claimed by the Secretary. The judge
then ruled on the asserted claims of privilege, referring to each document
separately. As a result 50 documents were protected from disclosure, i.e.,
privileged, four documents were ordered disclosed, and 14 documents were
ordered to be produced for an in camera inspection. 13
In Order 2, the judge completed his in camera inspection of the 14
documents ordered to be submitted to him and also inspected in camera, two
additional docwnents submitted by the Secretary with her motion to reconsider
the order to disclose. Additionally, the judge reconsidered his previous
ruling granting claimed privileges with respect to 11 documents.
To those
documents the judge applied a series of guidelines by which he re-evaluated
whether production was necessary, notwithstanding the existence of a

11

Securities Corp.
1972).

v.

428 F. Supp. 384, 395 (1977);
New York Stock Exchange, 57 F.R.D. 133, 138

Thill
(E.D. Wisc.

12

Additionally, as contestants themselves have shown this is a high
profile litigation in which Secretary of Labor Lynn Martin has been personally
involved.
Brief Exhibit B at 8; Brief Exhibit A at 19 20; PIR at 12-13.
13

Parts of one document were ordered to be produced and the remainder
presented for in camera inspection.

1001

privi
This process resulted in 49 documents be
protected from
disclosure, i.e., privileged, and 18 documents being ordered disclosed. 14
In Order 3, the judge issued orders in response to contestants' motion
to compel and the Secretary's motion for reconsideration.
The judge also
accepted for in camera review nine additional documents tendered by the
Secretary. This process resulted in three documents being protected from
disclosure, i.e., privileged, and eight documents being ordered disclosed.
In all, the judge examined, in camera, 25 of the 67 documents claimed to
be privileged.
2.

Did the judge fail to reguire sufficient factual material in
support of the Secretary's claimed privilege?

Contestants argue that the Secretary has not been required to furnish
sufficient factual data to support her assertion of privilege; that a detailed
description of each document, along with a detailed justification for the
claim of privilege is required; that the Secretary "must be required to submit
a 'Vaughn' index in order for the
to determine whether the documents are
privileged." 15 Brief at 12.
The Secretary argues that the judge has been presented with more than a
sufficient basis for his rulings on privilege.
She rejects contestants'
demand for a Vaughn index arguing that courts have required such an indexing
in FOIA cases where the court is confronted with masses of documents,
"unrelated to any specific claims, with which the court is unfamiliar."
Response brief at 32. By contrast, the j
in the instant case is
intimately familiar with the litigation and able to place the documents in
issue in proper context. The Secretary claims the requirement to create such
an index would yield no new information to contestants. Moreover, because the
Secretary has offered to provide the documents to the judge for
inspection, any question he may have
the application of a
ge
can easily be resolved.
. at 34.

3.

Contestants broadly challenge all conclusions of privilege made by the
judge, claiming in general that he did not properly apply the tests required
to sustain each privilege. Contestants separately describe the scope of each
of the five privileges at issue and assert particular errors of the judge.

14

Portions of two of the documents were excepted from the disclosure

order.
15

In
484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974), a case brought pursuant to the FOIA, the court ordered that the
agency furnish an index containing an itemization of the documents with a
correlated indication of its asserted justification for each claimed privilege.

1002

In defending the judge's ruling, the Secretary separately analyzes the
scope of each privilege and responds to each of the asserted charges of
judicial error.
4.

Did the judge's orders prevent meaningful review because
assertedly they lack sufficient factual detail and analysis?

Contestants charge that the judge failed to sufficiently explain the
bases for his rulings, thereby precluding meaningful review and running afoul
of Commission precedent that the judge must "clearly articulate the basis for
his conclusion" set forth in Asarco, 12 FMSHRC 2548, Brief at 6-7.
The Secretary defends the adequacy of the judge's orders by tracing each
order and describing the manner by which the judge evaluated, analyzed, and
explained his rulings as to each individual document. The Secretary contends
that the judge complied with Commission Procedural Rule 55(d), 29 C.F.R.
§ 2700.SS(d)(infra).
B.

Disposition of Issues

Contestants' issues 2, 3, and 4 address the discretion to be accorded
the judge in discovery proceedings. The Commission's standard of review is
determined by our procedural rules and relevant court precedent.
Discovery before the Commission is regulated by Commission Procedural
Rule 55, 29 C.F.R. 2700.55. 16 The scope of discovery permitted is specified
in Rule 55(c):
Parties may obtain discovery of any relevant matter
not privileged, that is admissible evidence or appears
reasonably calculated to lead to the discovery of
admissible evidence. 17
In reviewing a judge's rulings under the above-cited rule, the
Commission described its standard of review as follows:
[T]he Commission cannot merely substitute its judgment
for that of the administrative law judge ... The
Commission is required however, to determine whether
the judge correctly interpreted the law or abused his
16

Rule l(b), 29 C.F.R. 2700.l(b) also pertains: "On any procedural
question not regulated by the Act, these Procedural Rules, or the Administrative
Procedure Act (particularly 5 U.S.C. 554 and 556), the Commission or any Judge
shall be guided so far as practicable by any pertinent provision of the Federal
Rules of Civil Procedure as appropriate."
17
The documents in issue are apparently relevant inasmuch as the
Secretary listed the documents in the Generic and Privileged Document List in
response to the judge's order to include all relevant documents. Furthermore the
Secretary has not argued to the contrary.

1003

discretion and whether substantial evidence supports
his factual findings.
12 FMSHRC at 2555 (citations omitted). That case was one in which the
Commission was reviewing the discovery rulings of the judge after entry of a
final order of dismissal based on the Secretary's refusal to comply with the
judge's order to produce documents claimed to be privileged.
In similar cases (after entry of a final order), courts have recognized
"the broad discretion the discovery rules vest in the trial court 1118 and have
expressed a standard of review that is even more limited:
A district court has very wide discretion in handling
pretrial discovery and we are most unlikely to fault
its judgment unless, in the totality of the
circumstances, its rulings are seen to be a gross
abuse of discretion resulting in fundamental
unfairness in the trial of the case.
Voegeli v. Lewis, 568 F. 2d 89, 96 ,(.8th Cir. 1979) (citations omitted).
Indeed
our Commission Procedural Rule 55(d) also grants broad discretion to the
judge:
Discovery limited by Judge. Upon application by a
party or by the person from whom discovery is sought
or upon his own motion, a judge may, for good cause
shown, make any order limiting discovery to prevent
undue delay or to protect a party or person from
annoyance, oppression, or undue burden or expense.
(Emphasis supplied).
Thus, when analyzing the manner, content, and effect of a judge's
discovery rulings, the judge, by rule, is authorized to exercise wide
discretion in discovery matters, and the Commission by precedent is
disinclined to substitute its judgment for that of the judge unless error or
abuse of discretion has occurred.
Further support for the application of this standard of review, or one
that accords the judge even wider discretion, is drawn from the fact that the
Commission is not reviewing a final order of the judge. Notwithstanding the
rule that discovery orders are usually not appealable, 19 we have accepted
contestants' (and the Secretary's) representations that the matters raised in

18

BC. Wright & A. Miller, Federal Practice and Procedure§ 2006 at 35.

See 8C Wright & A. Miller, Federal Practice and Procedure § 2006 at
29 (1970); 9 Moore's Federal Practice§ 110.13[2] at 132 (2d ed. 1991). However,
our decision to grant the petitions is grounded in the recognition that this is
an unprecedented litigation of enormous impact and concern to all parties that
raises complex procedural and substantive issues of first impression.
19

1004

the petitions involve controlling questions of law, the review of which "may
materially advance the final disposition of the proceedings." 20 In
determining whether to grant review of pretrial discovery orders on an
interlocutory basis, courts have recognized and erected a high threshold of
review.
[I]n the absence of a certification ... or of a
showing of 'persistent disregard of the Rules of Civil
Procedure' (citation omitted), or of 'a manifest abuse
of discretion' (citation omitted), on the part of the
district court, no jurisdictional basis exists for
interlocutory review of pretrial discovery orders of
the type here p~esented. 21
Xerox Corp. v. SCM Corp., 534 F.2d 1031, (2nd Cir. 1976). Accordingly, in
this case, the discretion accorded the judge under the Commission's procedural
rules is broadly construed.
Did the judge rely upon sufficient factual material in ruling on the
privilege? (Issue 2)
This is a matter that is squarely within the discretion of the judge and
will not be disturbed unless a clear abuse of discretion is demonstrated. On
the facts presented in this case, contestants have failed to demonstrate
judicial abuse.
After reviewing the Secretary's document list and the two affidavits
invoking the privilege claims, and after applying the appropriate legal
principles, the judge agreed to protect 50 of the 67 documents claimed to be
privileged. As to the protected documents he stated, "I conclude that her
[the Secretary] description of these documents, while somewhat cryptic and
lacking in detail, is sufficient for me to determine that the documents fit
the privilege asserted." Order 1 at 9. He then proceeded, item by item, to
rule on each document in this group. At the same time, apparently concluding
that he was provided an insufficient amount of information supporting certain
claims of privilege, the judge ordered the production of 14 documents for his
in camera inspection. He also rejected four claims of privilege. Id. at 1617. As previously noted, before the issuance of his third order, the judge
had actually inspected 25 of the 67 documents claimed to be privileged. Thus
it is clear that when the judge determined more was needed to support a
privilege claim he acted, ordering production of the documents for his
camera inspection, and the Secretary complied.
Indeed, the record demonstrates that the Secretary has consistently
offered to make the documents available for in camera inspection, "in the
20

See Commission Procedural Rule 74, 29 C.F.R. 2700.74(a).

21

The contestants did not request nor did the judge issue a
certification for interlocutory review. The Secretary however did file a motion
seeking certification. The judge denied the motion.

1005

event that the Judge is unable from the document description provided by the
to determine the validity of the privilege asserted, the Secretary
agrees with Kentucky Carbon that an .=:.:;;;.....:::.=~~ inspection of any such
document is appropriate.
Thus, availability of access to the disputed documents and the sound
reasons contained in the Secretary's response brief, 23 provide strong support
for a rejection of contestants' demand for a so-called "Vaughn index." In
484 F.2d 820, the circuit court was reviewing the district court's
summary judgment in favor of the Civil Service Commission, which had denied a
FOIA request claiming that certain exemptions to disclosure obtained. Noting
that the Supreme Court, in the seminal FOIA case, Mink, 410 U.S. 73 "made it
clear that it was not always necessary for a court to conduct an in camera
examination" (Vaughn supra, at 824, fn. 16), the Vaughn court proceeded to put
its gloss on the approach to be taken by trial courts in determining whether
documents fit within FOIA exemptions. However, the indexing required by the
court was based upon an entirely different type of litigation than the case at
bar. In Vaughn, a law professor, engaged in research on the Civil Service
Commission, sought disclosure of reports, running into "many hundreds of
pages" which were not related to any litigation or claim the professor had
with the Commission. The court observed:
This lack of knowledge by the party seeing (sic)
disclosure seriously distorts the traditional
adversary nature of our
system's form of dispute
resolution. Ordinarily, the facts relevant to a
dispute are more or less equally available to adverse
parties. In a case aris
under the FOIA this is not
true, as we have noted, and hence the typical process
of dispute resolution is impossible.
at 824-825.
Thus, the circumstances
the court's determination are unique
to FOIA litigation and not present in the case at bar. The "dispute
resolution" typically employed is an
inspection. "Where the ALJ had
questions about particular documents he reviewed them, resulting in inspection
of approximately a quarter of the documents ruled privileged." Response Brief
at 34.
Accordingly, we conclude that the judge's reliance upon the record
information was well within his discretion and that contestants have failed to
demonstrate any abuse, or any reason why the judge should have compelled a
"Vaughn index." We also note that the record.discloses the existence of no

22

Secretary's opposition to motion to compel discovery, August 9, 1991
at 1. Except, the Secretary refused to furnish document 406 which she maintained
was prohibited from disclosure under Rule 6(e), Fed. R. Crim. P.
23

at 9-11, 31-35.

1006

motion or any other attempt by contestants, subsequent to the issuance of the
judge's orders, to cause the judge to require more information or receive
additional documents for an in camera inspection. 24
Did the judge properly apply the privileges?

(Issue 3)

The judge has set forth an accurate description of the legal elements
underlying each of the privileges. 25 While contestants' complaint is that
the Secretary provided, and the judge relied upon, too little information to
support the asserted privileges, contestants also support their challenge by
listing specific documents and coupling them with specific alleged errors.
The Secretary's defense generally provides sufficient basis for sustaining the
judge. 26 In other instances the charges of contestants are not well
founded. 27
Deliberative process privilege. In their challenge, contestants assert that
six of the 11 documents protected pursuant to this privilege refer to
communications occurring after a policy had been settled upon, and therefore
fail to meet the first prong of the'·test, that documents be "pre-decisional."
The Secretary's rebuttal indicates that four of the documents relate to the
issuance of civil citations and were pre-decisional with respect to that
decision. Response Brief at 22. As to the remaining two documents, they
"discuss options for how to improve MSHA's.dust sampling program in the
future, and remain pre-decisional because these policy decisions have not yet
24

Contestants' July 21, 1991 motion to compel discovery contains an
alternative request for in camera inspection.
25

With the exception of the guideline imposed regarding the
deliberative process privilege that was the focus of the Secretary's challenge
in her petition for interlocutory review.
26

Except as noted by the Secretary, document no. 17 "held to be
protected by the attorney-client privilege, should have been protected instead
as work product, which the Secretary also claimed." Response Brief at 25, fn 19.
27

With respect to their challenge to document no. 203, contestants note
that the judge protected the document notwithstanding the Secretary's failure to
assert the privilege on the "Secretary's repository list." Brief at 19, fn 14.
However, in her October 4, 1991, motion for reconsideration, the Secretary
expressly asserted
privileges, including the deliberative process
privilege.
In support of their challenge to the work product privilege contestants
assert that "many of the documents held to fall within this privilege, were not
generated by the Secretary's counsel and, in fact, were undated with unknown
authors." Brief at 26. Contestants support the statement with reference to 13
particular documents.
Examination of the record discloses that of the 13
referenced documents, six were both undated and unsigned and of those, three were
prepared for the U.S. Attorney's criminal investigation and the remaining three
were computer printouts. Of the seven documents that were dated, three were both
dated and signed.

1007

been made." Id. at 22-23.
The Secretary also indicates that a third
deliberative process occurred relating to matters to be referred for criminal
action.
Contestants charge that eight of the 11 documents failed to meet the
second prong of the deliberative process privilege test, i.e., they were not
"deliberative." The Secretary defends, stating all 11 documents" contain
opinions, recommendations, discussion points, options and other deliberative
materials." Id. at 23.
She indicates that some of the documents were
prepared by the Assistant Secretary for the Secretary; some were in draft form
and others were handwritten notes.
She notes that the judge has inspected
four of the documents in issue.
Investigative process privilege. Although contestants argue that too little
information was given to and received from the judge, the Secretary defends
the judge's rulings, averring that 17 of the 19 documents so protected relate
to ongoing criminal investigations and that the two remaining documents relate
to a separate civil investigation. 28 As such, the judge apparently concluded
that disclosure of the documents "wbuld interfere with those enforcement
proceedings. " 29
Attorney-client nrivilege. Again, all documents so protected are challenged
en masse, with the complaint essentially being that the "judge decided this
issue based solely upon whether the author and recipient of a particular
document were in an attorney-client relationship" and that the judge "failed
to consider the extent to which a waiver of any claim ... has occurred."
Brief at 23-24.
The Secretary states that all the documents except one "deal
primarily with highly sensitive criminal matters." Response Brief at 25.
She
also explains that two separate attorney-client relationships exist, one
between the Department of Justice (the attorney) and the Department of Labor
(the client), concerning criminal matters; and the second between the Office
of the Solicitor (attorney) and the Office of the Secretary and MSHA (the
clients), and that all the documents so protected resulted from one of these
relationships.
Regarding the allegation that the privileges may have been waived, the
Secretary states "Contestants never argued to the ALJ that the Secretary
waived any privilege, and, in fact, they still cite nothing in the record to
support such a claim." Id. at 31.
Work product privilege.
The judge protected 20 documents under this
privilege.
Contestants' challenge is essentially that too little information
was provided to the judge who then ruled in a summary fashion making it
impossible to determine if he properly applied the principles regarding the
privilege. Brief at 25.
The Secretary claims all 20 documents "were created

28

Three of the documents protected under the investigative process
privilege (Nos. 154, 161, 375) were not so claimed by the Secretary, however they
were inspected in camera by the judge.
29

See Order 1 at 6.

1008

in connection with the tampering allegations and dealt specifically with
potential or actual criminal or civil litigation." Response Brief at 17. She
observes that contestants did not challenge the basic fact that the documents
were prepared "'in anticipation of litigation or for trial' by government
attorneys or their agents within MSHA." Id. Two of the documents are the
work product of the Department of Justice, relating to criminal matters. Six
of the documents were prepared by attorneys in the Office of the Solicitor.
All contain "opinions, legal theories, and/or discussions of future litigation
plans and strategies." Id. at 18. The remaining 12 documents "were all
prepared by MSHA employees in connection with the AWC criminal investigation."
Id. Nine of the 12 were "'prepared at the direction of, and for the
assistance of, the U.S. Attorney'" while the remaining three also relate to
the criminal investigation. Id. at 18-19.
Each of the judge's orders details the legal elements required in
balancing the interests of the parties following the determination that the
qualified privileges, i.e., deliberative process, investigative process, or
work product, were properly invoked and obtain. In those instances the judge
applied the test set forth in the Commission's Bright decision. Order 1 at 89; Order 2 at 4-5; Order 3 at 1-3. The judge also properly recognized that
the attorney-client privilege is an absolute privilege, which does not require
a balancing analysis after a determination that the privilege is properly
claimed.
After reviewing of the record, 30 including the judge's orders, the
affidavits, the document list and the elaborations offered by the Secretary31
we conclude that contestante have failed to establish judicial error or abuse
of discretion with respect to the application of the four privileges.
Accordingly, we affirm the judge's rulings on these matters.
Rule 6(e) of the Federal Rules of Criminal Procedure. Contestants' allege
that the Secretary has failed to prove that the information in two folders
(Nos. 11 & 12) of document 406 "is truly before a grand jury and that the
disclosure of the information is prohibited by Rule 6(e)." Brief at 29.
Contestants properly note that the judge has not protected these documents
under this provision of the rules, but make this challenge because the
Secretary has invoked the protection under this rule. Contestants also
challenge the application of the rule since the documents are not within the
possession of the grand jury.
The Secretary responds that the documents claimed to be protected from
disclosure under this rule are secret grand jury materials in the possession
of MSHA's Robert Thaxton, an authorized grand jury agent, and that disclosure
of the documents is absolutely prohibited under the rule. Moreover, the
Secretary, citing Federal Rule of Criminal Procedure 6(e)(3)(D), states that
30

The documents in issue were not contained in the record before us and
the Commission did not view any documents in camera.
31

See Secretary's 8/9/91 opposition to motion to compel discovery and
Secretary's 10/4/91 motion for reconsideration.

1009

the prohibition against disclosure extends to the Commission and its judges
because the rule authorizes the
of a petition for disclosure only
before a district court where the grand jury convened.
Id. at 27.
Although the judge has not ruled on this matter, the Secretary continues
to assert this basis for protection because the documents are presently
protected only by the qualified work product privilege.
Id. at 26. The judge
declined to rule on this issue because he determined that the subject
documents were privileged on other grounds. Order 1 at 8.
We conclude however, that the Secretary is entitled to a ruling on the
issue and therefore remand the matter to the judge for such purpose.
Did the judge provide sufficient factual detail and analysis?

(Issue 4)

The contestants originally argued that the orders fail to contain
"findings of fact, conclusions of law and the reasons or basis for them." PIR
at 3. The Secretary countered that those requirements refer only to final
dispositions, and not to discovery,orders. See 29 C.F.R. 2700.65(a). As
noted above, Rule 55(d) pertains. As measured against that standard,
contestants' challenge fails to establish any abuse of discretion. The judge
carefully referenced the applicaple case law, evaluated the documents item by
item, applied the law and rendered his rulings. He examined 12 of the 52
documents in issue. Consequently, contestants' have failed to establish that
the judge abused his discretion. Accordingly, we affirm the judge's rulings.
III.

Conclusion

For the foregoing reasons, we hereby dissolve our order of November 13,
1991 staying the judge's order to produce certain documents, and we affirm the
judge's order requiring the production of certain documents claimed to be
protected by the deliberative process privilege. We also remand to the judge
for his analysis and ruling on those documents claimed by the Secretary to be
32
protected by the work product

32
The related issue raised by the Secretary in her motion to supplement
the record with expert witness list (January 30, 1992) is not before the
Commission, and consideration of it would be premature since the judge has not
ruled on the work product privilege issue. Therefore the motion is denied.

1010

Further, we reject contestants' assertions of error; affirm the judge's
rulings; 33 and expressly provide that our decision is without prejudice to
contestants' right to file before the judge a motion for
inspection
of any particular document. We also direct the judge to rule on the
Secretary's assertion of Rule 6(e) of the Federal Rules of Criminal Procedure
as a basis for nondisclosure.

33

Except as provided in fn. 26 supra.

1011

Distribution
Douglas N. White, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Timothy H. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004

R. Henry Moore, Esq.
Buchanan Ingersoll
600 Grant St., 58th Floor
Pittsburgh, PA 15219
Laura E. Beverage, Esq.
Henry Chajet, Esq.
Jackson & Kelly
1701 Pennsylvania Ave., }fw
Suite 650
Washington, D.C. 20006
Linda Homerding, Esq.
Williams & Connolly
839 17th St., N.W.
Washington, D.C. 20006
Ellen L. Beard, Esq.
Office of the Solicitor
U.S. Department of Labor
200 Constitution Ave., NW
Room N-2700
Washington, D.C. 20210
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1012

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

June 23, 1992

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 91-1084

v.

GATLIFF COAL COMPANY, INC.

BEFORE:

Ford, Chairman; Backley, D?!le, Holen and Nelson, Commissioners
ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et .2..§.9.. (1988). On May 20, 1992,
Commission Chief Administrative Law Judge Paul Merlin issued an Order of
Default finding respondent Gatliff Coal Company, Inc. ("Gatliff") in default
for failure to answer the Secretary of Labor's civil penalty proposal and the
judge's order to show cause. The judge assessed the civil penalty of $2,400
proposed by the Secretary. Gatliff filed a petition for discretionary review
on June 12, 1992, requesting that this matter be reviewed, on the grounds that
it mistakenly believed that it had filed its answer in this proceeding but, in
fact, its answer was filed in another Commission proceeding due to clerical
errors. We grant the petition for discretionary review of the judge's default
order and remand this matter to the judge for further proceedings.
It appears from the record that Gatliff may have an excusable reason for
its failure to respond to the judge's show cause order. See Hickory Coal
Company, 12 FMSHRC 1201 (June 1990). Under the standards set forth in Fed. R.
Civ. P. 60(b)(l), the Commission has afforded relief from default upon a
showing of inadvertence, mistake, or excusable neglect. ~. Amber Coal Co.,
11 FMSHRC 131, 132 (February 1989).
We are unable on the basis of the present record to evaluate the merits
of Gatliff's position but, in the interest of justice, we will permit Gatliff
the opportunity to present its position to the judge, who shall determine
whether final relief from the default order is warranted. See, ~. Kelley
Trucking Co., 8 FMSHRG 1867 (December 1986).

1013

Accordingly, we vacate the judge's default order and remand this matter
for further proceedings.

t;::·~lb&
Holen~
Arlene

L. Clair Nelson, Commissioner

Distribution

Robert I. Cusick, Esq.
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville~ KY
40202
Douglas N. White, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1014

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 51992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA},
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 91-1320
A. C. No. 36-02105-03521
Docket No. PENN 92-140
A. C. No. 36-02105-03523

R & N COAL COMPANY,
Respondent

Split Vein Breaker Mine
DECISION APPROVING SETTLEMENT
Before:

Judge Maurer

These cases are before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801, et seq. Petitioner has
filed a motion to approve a negotiated settlement between the
parties and to dismiss these cases. In light of the respondent's
dire financial situation, the Secretary has proposed a 90 percent
reduction in penalty with respect to each violation and further
proposed that payment of the penalties be made in 6 monthly
installments.
R & N Coal Company at this point has no employees with its
only source of income being rental income of $3250 per month.
I have considered the Secretary's representations and the
financial data submitted and I conclude that the proffered
settlement
consistent with the criteria in section llO(i) of
the Acte

ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement IS GRANTED and respondent shall pay a total penalty of
$4350. The first payment of $725 is due within 90 days of this
order and five additional payments of $725 are to be made no more
that 30 days from the previous one until payment is made in full.
Upon payment in full, these cases ARE DISMISSED.

~·
aurer
·rative Law Judge

1015

Distribution:
covette Rooney, Esq., Office of the Solicitor, U. s. Department
of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
Frank L. Tamulonis, Jr., Esq., Zimmerman, Lieberman & Derenzo,
111 East Market Street, P. o. Box 238, Pottsville, PA 17901
(Certified Mail)

dcp

1016

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE. 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

91992

JUN
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION
Petitioner

)
)
)
)
)
)
)
)

v.
CAPRICORN COAL COMPANY, INC.
Respondent

PENALTY PROCEEDING(S)
Master Docket No. 91-1
Docket No. KENT 91-1028
A. C. No. 15-16376-035150
Mine No. 3

DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On June 2, 1992, the Secretary filed a motion to approve a
settlement between the parties in the above case. The case
includes one alleged violation of 30 C.F.R. Section 70.209(b),
which was originally assessed at $1,200. The Secretary continues
to assert that the violation resulted from a deliberate act,
which is denied by the mine operator. The degree of negligence
is disputed, and the parties agree to the reduction in the total
penalties from $1,200 to $960.
I have considered the motion in light of the criteria llO(i)
of the Act and conclude that it should be approved.
Accordingly, the settlement motion is APPROVED.
The
operator is ordered to pay within 30 days of the date of this
order the sum of $960 for the violation charged in this
proceeding.

1

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James A. Broderick
Administrative Law Judge

Distribution:
Mark A. Malecki, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
Michael J. Schmitt, Esq., Wells, Porter, Schmitt and Walker,
327 Main Street, P. o. Box 1179, Paintsville, KY 41240-5179

1017

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

~ l ' ·:.. '.

.J '·''·''
\.
.
-~

'

DISCRIMINATING PROCEEDING

RAYMOND D SHEETS,
Complainant

Docket No. VA 92-5-D

v.
NORT CD 91-09
KOCH CARBON, INC.,
Respondent
DISMISSAL OF PROCEEDING
Before:

Judge Barbour

On April 20, 1992, counsel for Respondent advised me by
letter of a telephone conversation with Complainant in which
Complainant stated that he wished to "drop" this case.
Counsel
enclosed a letter dated April 9, 1992, from Complainant to me
(but sent to counsel) stating: "I,· Raymond David Sheets, wish to
drop my case against Koch Carbon with no further actions to be
taken." Subsequently, I issued an order to the parties to show
cause within 10 days why this matter should not be dismissed with
prejudiceo Neither party has responded to the order.
ACCORDINGLYu there being no reason given why this case
should be continued on the docketu the Complainant 1 s request is
granted and this matter is DISMISSED with prejudice.

- -. _,..--,

/··

)7//'~1''~L·L-~/.__.___
David Barbour
Administrative Law Judge
Distribution~

Mro Raymond Do Sheets, Route 2, Box 515A, North Tazewell, VA
24630 (Certified Mail)
Louis K. Obdyke, IV, Esq., Associate General Counsel, Koch
Industries, Inc., P.O. Box 2256, 4111 E. 37th Street, North,
Wichita, KS 67201 (Certified Mail)
/epy

1018

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266 I FTS 564-5266

.,, -' ' '

.-: ·~::

.
:
:
.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

·7

~

CIVIL PENALTY PROCEEDING
Docket No. CENT 91-149-M
A.C. No. 39-00180-05511
p Q 1643

v.
:

HILLS MATERIALS COMPANY,
Respondent
DECISION
App ea ranc es:

Susan J. Eckert,_ Esq. 1 Off ice of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward c. Carpenter, Esq., COSTELLO, PORTER, HILL,
HEISTERKA.MP & BUSHNELL, Rapid City, South Dakota,
for Respondent.

Before:

Judge Lasher

Upon motion for approval of a proposed settlement of the
five violations involved after hearing, and the same appearing
proper, the settlement is APPROVED.
Upon evaluation of the evidence in the record, the parties
agree that two of the Citations involved should be modified and
the penalties therefor reduced"
Respondent agrees to the Petitioner s proposed penalties for the three remaining Citations.
The terms of the settlement are reflected in the order below.
The penalties agreed to by the parties are here ASSESSED.
ij

ORDER

lo Citations numbered 3629578 and 3635122 are MODIFIED
to delete the "Significant and Substantial" designations thereon
and are otherwise AFFIRMEDo
2o
Respondentv if it has not previously done so, is
ORDERED TO PAY to the Secretary of Labor within 40 days from
the date hereof the sum of $817 ($20 each for Citations numbered
3629578 and 3635122 and $259 each for Citations numbered 3629575,
3629577, and 3629579).

~£.-tt~ 4 ~/r
Mi cha el A. Ia sher, Jr.
Administrative Law Judge

1019

Distribution:
Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
Edward Co Carpenter, Esq., COSTELLO, PORTER, HILL, HEISTERKAMP &
BUSHNELL, P.O. Box 290, R:ipid City, SD 57709 (Certified Mail)
Mrc Jim Johnson, Industrial Relations Manager, HILLS MATERIALS
COMPANY, PoOe Box 2320, R:ipid City, SD 57709
(Certified Mail)

ek

1020

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 1 71992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
.
..

CIVIL PENALTY PROCEEDING

0

.

Master Docket No. 91-1
Docket No. VA 91-571
A. C. No. 44-04704-03533D

0
0

v.
DORIS COAL COMPANY, INC.,
Respondent

No. 7 Mine

.
0

DECISION APPROVING SETTLEMENT

Before:

Judge Broderick

on June 10 1 1992, the Secretary filed a motion to approve a
settlement between the parties in the above case. The case
includes thirteen alleged violations of 30 C.F.R. § 70.209(b),
which were originally assessed at $1,100 apiece. The Secretary
continues to assert that the violations·resulted·from a·
deliberate act, which is denied by the mine operator. The degree
of negligence is disputed, and the parties agree to the reduction
in the total penalties from $14u300 to $12u155.
I have considered the motion in light of the criteria in
section llO(i) of the Act and conclude that it should be
approved.
Accordinglyu the settlement motion is APPROVED. The
operator is ordered to pay within 30 days of the date of this
order the sum of $12 0 155 for the violations charged in this
proceeding"

j~~5~=~L-

Administrative Law Judge

1021

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JL\N171992
COMPENSATION PROCEEDING

ROY FARMER ON BEHALF OF
OTHER MINERS,
Complainant

Docket No. VA 92-59-C

v.
VP-3 Mine
ISLAND CREEK COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Melick

Complainants request app:r,pval to withdraw\ their complaint in
the captioned case based upon a settlement of :the underlying
dispute. Under the circumstances herein, permission to withdraw
is granted.
29 C.F.R. § 2700.11. This case i~ therefore
dismissed.
"
;\
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Ga.i;-y Melick
~
Adffiinistrative' Law Judge
'
r
70,-756-6261 /
Distribution~

I

Mr. Roy Farmer, P.O. Box 63, Swords Creek, VA 24649
(Certified Mail)
Timothy M. Biddle, Esq,, Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
Street, N.W. Washington, D.C. 20005
/vmy

1022

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN·i 81992
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. SE 90-117-M
A. C. No. 54-00001-05503 BOY

v.
Ponce Cement or
Ponce Cement Plant

MAR-LAND INDUSTRIAL CONTRACTOR,
INCORPORATED,
Respondent

DECISION ON REMAND

Before:

Judge Weisberger

On May 27, 1992, the Commission issued a decision in this
matter to me 11 • • • for reassessment of a civil penalty in light of
the considerations set forth above".
(Mar-Land Industrial
Contractor, Inc., SE 90-117-M, 14 FMSHRC, ~~slip op., May 27,
1992).
In its decision, the Commission reversed my finding of high
negligence (13 FMSHRC 333 (1991)), and concluded, with regard to
the negligence of Mar-Land as follows:
"we consider the degree of
neligence with respect to the violation in issue to be ordinary",
(Mar-Land, supra 0 slip op., at 6)0 In light of this consideration,
and considering the remaining statutory factors as stipulated to be
by the parties, I conclude that a penalty of $1,000 is appropriate
for the violation at issue.
It is ORDERED that within 30 days of this decision, Respondent
pay $lu000 as a civil penalty for the violation of 30 C.F.R.
§

56.15005.

Avram Weisberger
Administrative Law Judge

1023

Distribution:
Eva L. Clarke, Esq., Office of the Solicitor, U. S·. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
,
Daniel R. Dominguez, Miguel A. Maza, Esqs., Dominguez and Totti,
P.O. Box 1732, Hato Rey, PR 00919 (Certified Mail)
Jane Snell Brunner, Esq., Office of the Solicitor, U.S. Department
of Labor, 201 Varick Street, Room 707, New York, NY 10014
(Certified Mail)
/ml

1024

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDG.ES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 2 21992

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

:

Docket No. KENT 90-429
A. C. No. 15-16685-03510

v.
RAMBLIN COAL COMPANY, INC.,
Respondent

CIVIL PENALTY PROCEEDING

.

Docket No. KENT 90-430
A. C. No. 15-16685-03511
No. 8 Mine

DECISION

Appearances:

Joseph B. Luckett, Esq., Nashville,
TN, for Petitioner;
Billy Shelton, Esq., Pikeville, KY,
for Respondent.

Before:

Judge Fauver

These cases were brought by the Secretary seeking civil
penalties for alleged violations of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et .§.filL.. By Order of
July 1, 1991, KENT 90-430 was stayed, and in KENT 90-429,
Citations 3367128, 3510164, and 3510419 were settled, and
citation Noc 3509948 was stayed. An evidentiary hearing was held
as to the remaining citationso
Having considered the hearing evidence and the record as a
whole 1 I find that a preponderance of the substantial, probative,
and reliable evidence establishes the following Findings of Fact
and warrants the following Conclusions of Law~
FINDINGS OF FACT AND CONCLUSIONS OF LAW

lo

The judge has jurisdiction in this proceeding.

2.
Respondent employs about 20 employees at its Mine No.
8, which produces 125,000 to 150,000 tons of coal per year for
sales or use substantially affecting interstate commerce. The
coal seam in Mine No. 8 is 32 to 36 inches high.
Citation No. 3368936
3.

Citation No. 3368936 was issued on November 28, 1989,

by Inspector Thomas Charles for a violation of 30 C.F.R.

1025

§ 75.402.
The evidence sustains the charge. Rock dust had not
been applied as required to the following areas in the 002-0
section: the No. 1 entry starting 40 feet outby the face and
extending for 170 feet; the last row of open crosscuts across the
section; and the No. 2 entry starting.at the outby corner of the
last open crosscut and extending outby for 80 feet. The areas in
question were very black. Two spot band samples were taken by
Inspector Charles, and they support the citation. Inspector
Randy Wellman accompanied Inspector Charles and confirmed his
findings.

4.
Respondent should have observed and corrected this
condition before the inspection, and was therefore negligent.
Electrical equipment on the section provided an ignition source,
and it was reasonably likely that an explosion or fire could
occur, killing or seriously injuring 13 persons on the section.
5.
A penalty of $168 is appropriate, considering the
criteria for a civil penalty in § llO(i) of the Act.
citation No. 3367127
6.
Citation No. 3367127 was issued on January 26, 1990, by
Inspector James Frazier for a violation of 30 C.F.R. § 75.601-1.
The evidence sustains the charge. The trip setting for the
number 6 cable supplying power from the power center to the Lee
Norse roof bolting machine was improperly set. The cable should
be set no higher than 300 amperes, but was set on 450. This
created a danger of fire or smoke inhalation in the event of a
short circuit or over-current. The power was on this piece of
equipment when the violation was observed by Inspector Frazier.
7o
The violation was obvious and an electrician employed
by Respondent was in the area.
Respondent was therefore

negligent.
was reasonably likely that a fire might occur,
causing serious injuries.
8.

A penalty of $54 is appropriate.
Citation No. 3510451

9.

Citation No. 3510451 was issued on February 21, 1990,
§ 75.601-1.
The evidence sustains the charge. The trip setting for the cable
connecting the section power center breaker to the mobile coal
drill was not set properly. A number 6 cable was being used, and
the setting for this cable should be set no higher than 300 amps.
It was set at 550 amps. The power was on this piece of equipment
when the violation was observed.
by Inspector Sam Harris for a violation of 30 C.F.R.

10. The violation was obvious and should have been
corrected before the inspection. Respondent was therefore

1026

negligent.
It was reasonably likely that the cable might catch
on fire if it were subjected to more current than it was designed
to withstand. This could result in severe burns.
11.

A penalty of $54 is appropriate.
Citation No. 3510452

12. Citation No. 3510452 was issued on February 21, 1990,
by Inspector Harris for a violation of 30 C.F.R. § 75.512. The
evidence sustains the charge. The trailing cable (about 220
volts) on the Lee Norse roof bolter was not maintained in a safe
condition. The cable had a damaged place exposing about one inch
of the underlying power conductors. The metal part of the
conductor was exposed. This cable is ordinarily handled by hand
by the roof bolter helper, who keeps it out of the way of the
roof bolter and other equipment in the mine.
13. The violation was obvious and should have been
corrected before the inspection.. Respondent was therefore
negligent.
It was reasonably likely that the roof bolter helper
might touch the bare conductor and suffer a fatal electrical
shock.
14.

A penalty of $98 is appropriate.
Citation No. 3510194

15. Citation No. 3510194 was issued on March 6, 1990, by
Inspector Harris for a violation of 30 C.F.R. § 77.1605(k). The
evidence sustains the charge. The guard along the outer bank of
the elevated roadway to the mine was not sufficient to prevent a
vehicle from leaving the roadway. An adequate guard had been
installed originallyv but the roadway was built up by adding
ballast until the guard was beneath the surface. Further, in an
area where posts had been installed the earth had slipped or
eroded until there was no berm or guard for about 200 feet. The
total length of roadway affected was 800 to 1,000 feet.
16. The road was frequently traveled and the condition was
obvious and dangerous. Respondent was therefore negligent. Coal
trucks, supply vehicles, and miners driving to and from work
regularly used the roadway.
It was reasonably likely that one of
these vehicles might travel off the roadway, causing fatal
injuries to the driver. A fall of 80 to 100 feet to the bottom
of the hollow would result.
17.

A penalty of $136 is appropriate.

1027

Citation No. 3510199
18. Citation No. 3510199 was issued on March 6, 1990, by
Inspector Harris for a violation of 30 C.F.R. § 75.1722(a). The
evidence sustains the charge.
Inspector Harris observed the Joy
cutting machine being trammed from one working place to another
with no guard on the cutter chain. The coal in this mine is 32
to 36 inches. The machine operator had poor visibility because
of the height of the coal and the size of the machine.
19. Respondent should have observed and corrected this
condition and was therefore negligent. The machine was set to
travel about 60 feet to another working place. With 15 people in
the mine, it was reasonably likely that a miner might come into
contact with the cutting chain, causing serious injuries.
20.

A penalty of $112 is appropriate.
citation No. 3509741

21. Citation No. 3509741 was issued on March 28, 1990, by
Inspector James Frazier for a violation of 30 C.F.R. § 77.513.
22. The evidence sustains this charge. A dry wooden
platform or insulated mat had not been provided for the number
two charger, which was used to charge scoop batteries. The
charger (480 volts) was on the mine surface and was fully exposed
to the weather.
23. Respondent should have observed and corrected this
condition, and was therefore negligent. It was reasonably likely
that someone might receive a fatal electrical shock. The charger
was used several times a day to plug or unplug batteries for
charging"
24.

A penalty of $112 is appropriate.
Citation No. 3510420

25. Citation No. 3510420 was issued on March 28, 1990, by
Inspector James Frazier for a violation of 30 C.F.R. § 77.513.
The evidence sustains the charge. A dry wooden platform or
insulated mat had not been provided for the number one charger,
which was used to charge scoop batteries. The charger (480
volts) was on the mine surface and was fully exposed to the
weather.
26. Respondent should have observed and corrected this
condition, and was therefore negligent. It was reasonably likely
that someone might receive a fatal electrical shock. The charger
was used several times a day to plug or unplug batteries for
charging.

1028

27.

A penalty of $112 is appropriate.
Citation No. 3509742

28.
Citation No. 3509742 was issued on March 28, 1990, by
Inspector Frazier for a violation of 30 C.F.R. § 75.503. The
evidence sustains the charge. A scoop used in and inby the last
open crosscut was not maintained in a permissible condition.
There was an opening in excess of .005 inches in the main panel
board; a rear headlight had no set screw in the lens and the
headlight was not secured to the frame; there was no set screw in
a packing gland nut; and the headlight on the right front of the
scoop had no set screw in the packing gland nut. These problems
created a danger of fire or explosion through ignition of coal
dust.
29. Respondent should have observed and corrected this
condition, and was therefore negligent.
It was reasonably likely
that a spark might ignite the .coal dust in the air, causing an
explosion or fire with serious injuries. Ten persons worked on
the section.
30.

A penalty of $157 is appropriate.
citation No. 3510415

31. Citation No. 3510415 was issued on March 28, 1990, by
Inspector James Frazier for a violation of 30 C.F.R. § 77.208(d).
The evidence sustains the charge. Two compressed gas cylinders
were placed beside the parts building and were not secured in a
safe mannero
There was a great deal of scrap metal in this area,
which was frequently traveled by persons obtaining parts from the
building or just going about ordinary surface duties.
32. Respondent should have observed and corrected this
condition, and was therefore negligent.
It was reasonably likely
that the cylinders might fall or be knocked over, causing an
explosion or causing the cylinder to become a missile if the
cylinder were punctured.
33.

A penalty of $112 is appropriate.
citation No. 3509946

34. Citation No. 3509946 was issued on April 10, 1990, by
Inspector Sam Harris for a violation of 30 C.F.R. § 75.305.
The
evidence sustains the charge. The last recorded date in the
record book entitled "Examination of Emergency Escapeways and
Facilities; Smokers Articles; Fire Doors" was April 2, 1990.
This examination is required to be made and recorded at intervals
not to exceed seven days.
The mine produces coal five days a
week.

1029

35. Respondent was aware of the need to record the
examinations. Negligence was moderate. It was unlikely that the
violation would result in any injury. It was not significant and
substantial.
36.

A penalty of $112 is appropriate.
Citation No. 3509947

37. citation No. 3509947 was issued on April 10, 1990, by
Inspector Sam Harris for a violation of 30 C.F.R. § 75.300. The
last recorded date in the record book entitled "Daily and Monthly
Examination of Ventilation Equipment" was April 3, 1990. This
examination is required to be made and recorded on a daily basis.
The mine produces coal five days a week.
38.
Respondent was aware of the need to record the
examinations. Negligence was moderate. It was unlikely that the
violation would result in any·injury. It was not significant and
substantial.

39.

A penalty of $112 is appropriate.
Citation No. 3510198

40.
Citation No. 3510198 was issued on March 6, 1990, by
Inspector Sam Harris for a violation of 30 C.F.R. § 75.301-4(a).
The evidence sustains the charge. Inspector Harris attempted to
take an air reading in the No. 7 active working entry and found
no perceptible movement of air. An anemometer was used to take
the air reading, and the blades of the instrument did not turn.
The problem was caused by a line brattice, which did not reach
the floor and did not adequately direct the flow of air to the
face.

41.
It was obvious that the line brattice did not reach the
floor of the mine, and that the flow of air would therefore be
short-circuitedo Respondent was therefore negligent.
It was
reasonably likely that the two persons working in the entry could
sustain serious injuries or disease as a result of this
conditiono
420

A penalty of $119 is appropriate.
Citation No. 3510200

43. Citation No. 3510200 was issued on March 6, 1990, by
Inspector Harris for a violation of 30 C.F.R. § 75.208. The
evidence sustains the charge. An area of unsupported roof, about
10 feet long and 20 feet wide, was present in the No. 3 entry
working place where coal had been loaded out. There was no
visible warning device nor a barricade to prevent travel into the

1030

area of unsupported roof.
Inspector Harris testified that the
roof appeared to be fragile shale, susceptible to sloughing and
falling.
The height of the coal was about 36 inches.
44. Respondent should·have observed and corrected this
condition and was therefore negligent. It was reasonably likely
that someone would enter the area and be struck by falling roof,
sustaining fatal or severe injuries.
45.

A penalty of $112 is appropriate.
Citation No. 3509801

46. Citation No. 3509801 was issued on March 28, 1990, by
Inspector Sam Harris for a violation of 30 C.F.R. § 75.400. The
evidence sustains the charge. Accumulations of coal, coal dust,
and float coal dust mixed with oil were present on a scoop used
to load and haul coal in the face area. The accumulations
covered much of the area of the scoop, including electrical
components of the machine. This presented a danger of fire
should the machine overheat or if some electrical problem
occurred.
47. This condition was readily visible. Respondent was
therefore negligent. It was reasonably likely that a fire might
be started or propagated because of the accumulations, causing
serious injuries.
48.

A penalty of $85 is appropriate.
Citation No. 3509802

49. Citation No. 3509802 was issued on March 28, 1990, by
Inspector Sam Harris for a violation of 30 C.FoR. § 75.503. The
evidence sustains the charge. A scoop used to load and haul coal
in the face area was not in a permissible condition. There was
an opening in excess of four thousandths of an inch between the
panel board cover and the supply compartment. The lens in the
right headlight was displaced, and there was no set screw in the
packing gland nut. The same headlight was not secure due to
loosening of the set screws. There was an opening in excess of
four thousandths of an inch between the main compartment and its
cover.
Finally, the parking brake on the scoop would not hold
the machine stationary.
50. These conditions presented a number of dangers. The
primary danger was caused by the openings between the covers of
the electrical compartments which could cause a spark to escape,
igniting coal dust and causing a fire or explosion. An ignition
was reasonably likely to occur, with 13 persons on the section
exposed to danger of serious injuries.

1031

51.

A penalty of $157 is appropriate.
ORDER

1.
Respondent shall pay the above penalties of $1,812
within 30 days of the date of this Decision.
2.
The civil penalties in the settlements approved on the
record, if not previously paid, shall be paid by Respondent
within 30 days of this Decision.

3.
The STAYS in Docket Nos. KENT 429 and 430 are LIFTED,
and all citations charging excessive history violations are
DISMISSED.
4.
This Decision and Order and the settlement approved on
the record constitute a final disposition of all issues in these
proceedings.

u)j&~~~~
William Fauver
Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)

1
R. Shelton, Esq.u Baird, Baird, Baird and Jones, P.
351 1 Pikeville, KY 41501 (Certified Mail)
/fas

1032

o. Box

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

VP-5 MINING COMPANY,
Contestant

22041

CONTEST PROCEEDINGS
Docket No. VA 92-112-R
Order No. 3800172

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. VA 92-113-R
Order No. 3800173
Docket No. VA 92-114-R
Order No. 3800174
Docket No. VA 92-115-R
Citation No. 3800175
VP-5 Mine
DECISION

Appearances:

Timothy M. Biddle, Esq. and Thomas A. Stock,
Esq., Crowell and Moring, Washington, D.C.,
for Contestant;
Robert Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
Respondent

Before:

Judge Melick

These contest proceedings were filed by the VP-5 Mining
Company {VP-5) pursuant to sections 105(d) and 107(e) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et~' the "Act,H to challenge two citations and two "imminent
danger" withdrawal orders issued by the Secretary of Labor at
the VP-5 Mine on March 25 and 26, 1992.
The VP-5 Mine is a shaft coal mine located in southwestern Virginia employing 348 miners and annually producing
about 1.37 million tons by both longwall and continuous miner
methods. The north side of the mine where longwall panels
have been extracted is known as the East Gob. The East Gob
is a large (4,600 foot by 6,000 foot) inaccessible area
remaining from seven mined-out longwall panels and is
surrounded by bleeder entries on the north and west, by the

1033

9th Development Panel on the east (the site of an extant
longwall mining operation), and by barriers separating it
from the main intake air courses on the south (See Joint
Exhibit No. 1).
Methane is liberated during the mining process and
continues to be liberated from the gob area. If the
ventilating system is properly functioning, methane liberated
at the longwall face is diluted and carried out of the mine
by ventilating air currents. Methane not removed by such
ventilation is ordinarily pulled into the gob by a pressure
differential between the longwall face area and the gob.
The methane moves from an area of relatively high pressure
(the longwall face) to an area of lower pressure (the gob)
Methane liberated from fallen roof in the gob flows out of
the gob by air drawn through the gob and into adjacent bleeder
connectors and bleeder entries which in turn, direct the
methane to the main return air course. Under the Secretary's
regulations, at the point where the bleeder entries intersect
a main return, the methane concentration must be no more than
2.0 percent. See 30 C.F.R. § 75.316-2(h). Additional methane
is drawn off the gob through vertical ventilation holes drilled
into the gob from the surface.
MSHA Inspector Carl Duty appeared at the VP-5 Mine on
March 25, 1992, to perform a spot inspection required under
section 103(i) of the Act at mines liberating large amounts
of methane. He proceeded to the bleeder entries surrounding
the East Gob entering at the 1 North Main entries and traveled
across the northern portion of the East Gob through one of the
bleeder entries checking roof conditions and, using a Riken
detector, tak~ng methane readings. These readings were all
below 3.0 percent methane. He also obtained methane readings
in each of 32 bleeder connectors across the north side of
the gob. In three of these connectors he detected methane
concentrations of 4.2 percent, 4.1 percent and 4.0 percent
respectively. Laboratory analysis of a bottle sample then
taken at the No. 1 connector of the No. 6 Development also
showed 4.13 percent methane along with .16 percent carbon
dioxide? 20.1 percent oxygen and .107 percent ethane.
When Inspector Duty found 4.2 percent methane in the
No. 1 connector of 6 Development he issued a section 107(a)
imminent danger withdrawal order directing that longwall
operations be halted until further notice. Although the
longwall had already been shut down by the operator, Duty

1034

was unaware of this at the time he issued this order. Duty
also issued a section 104(a) citation alleging that the VP-5
Mine had failed to comply with its Ventilation Plan in
violation of 30 C.F.R. § 75.316. The inspector maintains
that VP-5 was not controlling methane levels in the East Gob
as required by Paragraph 10 of the Veritilation Plan. The order
was terminated later the same day when methane levels in the
bleeder connectors were reduced to below 3 percent.
The following day, March 26, 1992, Inspector Duty
returned to the same area of the mine and obtained methane
readings in the same bleeder connectors. Again he issued a
section 107(a) Order and section 104(a) citation. He found
4.75 percent and 4.8 percent methane at the Nos. 1 and 2 entries,
respectively, at the 4 Development and 5.2 percent methane at
the 6 Development. The inspector 1 s methane readings on both
dates are undisputed.
The citations at bar, No~~ 3800173 and 3800175, issued
March 25, 1992 and March 26, 1992, respectively, charge
violations of the VP-5 Ventilation Plan under the standard
at 30 C.F.R. § 75.316 and allege as follows:
The bleeder system was not functioning properly in
that the methane content at the bleeder connectors
from No. 2 Development through No. 6 Development
ranged from 4.0 percentum at No. 2 Development to
4.2 percentum at No. 6 Development. This is a
significant increase in the amount of methane that
is normally observed in these areas indicating that
the methane content in these areas are [sic] not
being controlledo (Citation Noo 3800173)
The bleeder system was not functioning properly in
that 4o5 to 5.2 percentum of methane was present in
the bleeder connectors from No. 2 Development to
No. 6 Development. The approved ventilation plan
was not being complied with in that permanent type
stoppings were being erected in the bleeder connectors
at the top
Noo 2 through Noo 7 Developments that
prevents the gob areas from being ventilated as
approved by the MSHA District Managero (Citation
No. 3800175)
In particular the Secretary maintains that in each case
VP-5 violated paragraph 10 of its Ventilation System and
Methane and Dust Control Plan, and, more spec ically, the
following language of that plan:

1035

The bleeder entries, bleeder systems, or equivalent
means will be used in
active pillaring areas to
ventilate the mine areas from which the pillars have
been wholly or partially extracted so as to control
the methane content in such areas.
(Exhibit G - 12; Tr. 67-68, 115).
The Secretary maintains, in addition, that under Citation
No. 3800175, VP-5 also violated the provisions of subsection (a)
of paragraph 10 of the Ventilation Plan. Those provisions read
as follows:
Bleeder entries will be defined as special air
courses developed and maintained as part of the
mine ventilation system and designed to continuously move air-methane mixtures from the gob,
away from active workings, and deliver such mixtures
to the mine return air courses. Bleeder entries
will be connected to those areas from which pillars
have been wholly or partially extracted at strategic
locations in such a way to control air flow through
such gob area, to induce drainage of gob gas from all
portions of such gob areas, and to minimize the hazard
from expansion of gob gases due to atmospheric change.
Paragraph 10 of the Ventilation Plan requires in essence
that the methane content of the gob must be controlled by the
bleeder system or equivalent means. As noted by VP-5 however
neither the Secretary's regulations nor the VP-5 Ventilation
Plan specifically define what is meant by "control" of the
methane content. The Secretary's regulations state only that
bleeder
s are "designed to continuously move air-methane
mixtures
the gob, away from active workings, and deliver
such mixtures to the mine return air courses." See 30 C.F.R.
§ 75.316-2(e)(l).
As further noted by VP-5 there is no regulation or provision of the subject Ventilation Plan which
mandates any particular concentration of methane as indicative
of ncontrol." VP-5 argues that evidence of such control
implicit in the requirements under 30 C.F.R. § 75.316-2(h) that
exiting bleeder entries must contain no more than 2.0 percent
methane where
enters a return air course. There
no dispute
in this case
VP-5 was, indeed, maintaining its bleeder air
at 2.0 percent or less at the relevant checkpoint when Inspector
Duty issued his citations. VP-5 argues that since this is the
only indicia of control mentioned in the Ventilation Plan, that
should be
end of the matter.

It is established law that once a ventilation plan is
approved and adopted, its provisions are enforceable at the
mine as mandatory safety standards.
Zeigler v. Kleppe,
536 F.2d 398 (D.C. Cir. 1976), Carbon County Coal Co.,

1036

6 FMSHRC 1123 (1984), Carbon County Coal Co., 7 FMSHRC 1367
(1985), Jim Walter Resources, Inc., 9 FMSHRC 903 (1987).
In
an enforcement action before the Commission, the Secretary
bears the burden of proving any alleged violation.
In plan
violation cases the Secretary must establish that the provision
allegedly violated is part of the approved and adopted plan and
that the cited condition or practice violates the provision.
Jim Walter Resources, Inc., supra, at p. 907.
Where the plan
provisions are ambiguous the Secretary may establish the
meaning intended by the parties by presenting credible extrinsic
evidence, for example, as to the.history and purpose of the
provision and evidence of prior consistent enforcement. See
Penn Allegh Coal Co., 3 FMSHRC 2767 (1981).
The term "control" as used in Paragraph 10 of the
Ventilation Plan is ambiguous and may indeed be subject to
different interpretations. The issue here is whether the
undisputed methane concentrations found in these cases
constitute a lack of such "control." It is not clear whether
there has been prior consistent enforcement by MSHA of its
present interpretation of these provisions. The Secretary failed
to produce evidence of any similar prior citations and noted only
that Inspector Duty had testified that in the preceding month he
had issued an imminent danger withdrawal order under similar
circumstances. Mine Manager Eddie Ball testified on the other
hand that there had never been prior enforcement action by
MSHA comparable to the charges made herein. The latter testimony is, however, not sufficiently detailed from which it may
reasonably be inferred that MSHA inspectors had indeed observed
essentially the same conditions in the past and decided not to
cite those conditions. The evidence is therefore insufficient
in this case from which any inference may be drawn either that
there has been prior consistent enforcement of the construction
now taken by the Secretary or that there has been prior
consistent non-enforcement.
In any event I find that the policy and practices followed
at the VP-5 Mine may also demonstrate what the parties intended
by the term "control. 11 See Penn Allegh Coal Co., supra" VP-5
policy regarding methane
the connecting entries was described
by Mine Manager Eddie
at hearing as follows:
Wellf my orders to all three shifts at the coal mine
I'm at and at the previous coal mine,
"At 4 percent
[methane] you stopped the longwall. If it goes to
4.5, or you find 4.5, you stay right there where you
find it, you monitor it, if it continues to rise, go
withdraw your people. If it
not something you can
see that's an immediate area that you can immediately
do something about, then you withdraw your people."
(Tr. 271-272, See also Tr. 252, 257, 274 and 275.)

1037

Within this framework I conclude that when methane
levels reach 4 percent in the bleeder connectors there has
been recognition in VP-5 company policy and practice that
the methane in the gob is not adequately controlled. This
policy and practice is entirely consistent with the Secretary's
view that such levels of methane in the bleeder connectors under
the facts of these cases constitute a violation of those Ventilation Plan provisions requiring the methane level in the gob to
be controlled. This evidence therefore establishes the meaning
intended by the parties and, considering the undisputed methane
levels found in these cases, I conclude that there were indeed
violations of paragraph 10 of the Ventilation Plan as charged
on March 25 and March 26, 1992. In light of the above findings
there is no need to also determine whether there was a violation
in Citation No. 3800175 under the Secretary's alternate theory.
It appears in any event that this alternate theory was withdrawn
at hearing (Tr. 125-127).
The violations were also "significant and substantial"
for the same reasons that the'·Underlying conditions also
constituted "imminent dangers." Mathies Coal Co., 6 FMSHRC 1
(1984). see discussion, infra. See also National Gypsum
Company, 3 FMSHRC 822 at p. 828.
Withdrawal Orders No. 3800172 and 3800174, issued pursuant to
section 107(a) of the Act, charge on March 25 and March 26, 1992,
respectively, as follows:
·
The bleeder system was not functioning properly in
that the methane content at the bleeder connectors
from No. 2 Development through No. 6 Development
ranged from 4.0 percentum at No. 2 Development to
4.2 percentum at No. 6 Development •. This is a significant increase in the amount of methane that is
normally observed in those connectors indicating
that the methane content in these areas are [sic]
notbeing controlled (75.316).
(Order No. 3800172).
The bleeder system was not functioning properly in
that 4.5 to 5.2 percentum of methane was present in
the bleeder connectors from No. 2 Development to No. 6
Development. Permanent type stopping were [sic] being
erected in the bleeder connectors that prevent the air
from being coursed through the gob area as approved by
ventilation plan for this mine. Order No. 3800174).
Inspector Duty also noted in Order No. 3800172 that the
"Area or Equipment" was the development off 2 East Mains Face
Area and in Order No. 3800174 that the "Area or Equipment" was
the "Entire Mine".

1038

Section 107(a) of the Act provides, in part, as follows:
If, upon any inspection or investigation of a
coal or other mine which is subject to this Act,
an authorized representative of the Secretary finds
that an imminent danger exists, such representative
shall determine the extent of the area of such mine
throughout which the danger exists, and issue an
order requiring the operator of such mine to cause
all persons except those referred to in section 104(c),
to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of
the Secretary determines that such imminent danger
and the conditions or practices which caused such
imminent danger no longer exists.
Section 3(j) of the Act defines "imminent danger" as the
existence of any condition or,practioe in a coal or other mine
which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.
This definition was not changed from the definition contained
in the Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801
et ~o (1976) (Amended 1977) ("Coal Act"). The Senate Report
for the Coal Act states that an imminent danger is present when
"the situation is so serious that the miners must be removed
from the danger forthwith when the danger is discovered without
waiting for any formal proceeding or notice." s. Rep. No. 411,
9lst Cong., 1st Sess. 89 (1969), reprinted in Senate Subcommittee
on Labor, Committee on Labor and Public Welfare, 94th Cong.,
1st Sess. Part I, Legislative History of the Federal Coal Mine
Health and Safety Act of 1969 at 215 (1975) (quotes Coal Act
Legislative History). It further states that the "seriousness
of
situation demands such immediate action" because "delays,
even of a few minutes, may be critical or disastrous. 11 See
Utah Power and Light Company, 13 FMSHRC 1617 (1991).
In Rochester and Pittsburgh Coal Company v. Secretary,
11 FMSHRC 2159 (1989), the Commission set forth the analytical
framework for determining the validity of imminent danger withdrawal orders
sued under section 107(a) of the Act. The
Commission indicated that
is first appropriate for the judge
to determine whether the Secretary has met her burden of proving
that an "imminent danger" existed at the time the order was
issued. The Commission also suggested, however, that even if an
imminent danger had not then existed, the findings and decision
of the inspector in issuing a section 107(a) order should
nevertheless be upheld "unless there
evidence that he has
abused his discretion or authority." Rochester and Pittsburgh,
supra, at p. 2164 quoting Old Ben Coal Corp. v. Interior Board
of Mine Operations Appeals, 523 F.2d 25 at p. 31 (7th Cir. 1975).

1039

In evaluating whether an imminent danger existed in
these cases it is important to consider the three ingredients
necessary for a methane ignition or explosion, i.e. fuel,
adequate oxygen and an ignition source. The record in this
case is undisputed that methane at concentrations of 5 to
15 percent and, in the presence of ethane, even less than
5 percent, can provide the fuel for an ignition or explosion.
It is further undisputed that methane concentrations in three
of the bleeder connectors on March 25 were 4.2 percent,
4.1 percent and 4.0 percent. Bottle samples taken that date
also demonstrate the presence of 4.13 percent methane and
.107 percent ethane.
These methane concentrations also represented an
increase over readings in the 3 to 3.5 percent range obtained
by Inspector Duty during biweekly inspections in the previous
three months.
It was Duty's expert opinion that his readings
on March 25 were "abnormally high" and with this increase the
system was "overloaded." He .further opined that the methane
was not being removed and could increase in a matter of moments
to the explosive range. These findings are consistent with the
VP-5 policy and practice to close down longwall operations when
methane in the bleeder connectors reaches 4 percent. See
discussion, supra.
It is undisputed that at least 12 percent oxygen is also
necessary for a methane ignition.
It is further undisputed
that bottle samples indicated that on March 25, 1992, there
was 20.1 percent oxygen present in the 6 Development No. 1
Connector. Finally, according to the undisputed testimony
of the Secretary's expert on mine ignitions and explosions,
Cleat Stephans, ignitions can be triggered from frictional
heat from rocks sliding against one another during a roof fall.
Moreover, roof falls are expected to occur within, and on the
fringes of, the gob. While there is additional record evidence
of other ignition sources disputed by VP-5, this undisputed
source, i.e., frictional heat, is clearly sufficient in itself
to complete the equation for an imminent danger.
In regard to one of these disputed ignition sources, the
inspector testified that he was concerned, in issuing the orders,
that the building methane would back up into the longwall face
where he believed other ignition sources existed. While
turned out that on March 25 the longwall had already been shut
down, the operator was under no binding restraint preventing
it from restarting the longwall absent Inspector Duty's order.
The operator's policy of shutting down the longwall when methane
concentrations at the bleeder connectors reach 4 percent is also
consistent with Inspector Duty's concerns that these methane
concentrations indicated that the ventilation system was "overloaded" and that methane would back up into an operating longwall

1040

face with its recognized potential ignition sources.
In any
event, I find that even within the framework of the undisputed
evidence, there was clearly an imminent danger as charged in
Order No. 3800172.
Additional conditions existed at the time Order
No. 3800174 was
sued that provide even further support
for the Inspector's finding therein of an imminent danger.
In his March 26 order the inspector noted that methane was
present in the bleeder connectors at a 4.5 to 5.2 percent
concentration. Bottle samples also confirmed the presence
of 4.48 percent methane with .113 percent ethane. While
Contestant does not dispute the existence of 5.2 percent
methane at this time it claims that this reading was obtained
after the order was already issued. The record however does
not support this claim. It is apparent from the testimony of
Inspector Duty and the face of the order itself, that while he
believed he already had sufficient evidence based on his methane
readings at the No. 4 Development to issue an imminent danger
order, the order itself was not issued until he had also obtained
a 5.2 percent methane reading at the No. 6 Development No. 1
Connector (Government Exhibit No. 15; Tr. 77-78).
In addition,
Duty noted that a crew of miners had been working in the area
with, among other things, metal hammers and axes. While those
miners were having lunch at the time he issued his order it is
reasonable to expect that they would have resumed working with
these metal tools -- a high potential ignition source -- in the
very near future.
See Utah Power and Light Company, 13 FMSHRC
1617 at p. 1622 (1991).
Contestant also mildly protests in a footnote to
its
Inspector Duty presented no evidence that there
was
time sufficient oxygen for methane ignition, a bottle
samp
taken during his March 26 inspection showed the presence
of 18.89
oxygen at the "bleeder connector No. 2 Entry of
4 Development" (Government Exhibit No. 14). The clear potential
source
ignition or explosion from miners working with metal
tools in
presence of sufficient oxygen and explosive levels
of methane, without question, constitute an imminent dangero
Order No. 3800174 must accordingly
be upheld.

1041

ORDER
Citation Nos. 3800173 and 3800175 and Order Nos. 3800172
and 3800174 are AFFIRMED and the contests of said citatiop.i. s and
orders are DISMISSED.
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G.:iry Me~.j_ck
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Administl~ative Law\Judge
703-756-',6261
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Distribution:

Timothy M. Biddle, Esq. and Thomas A. Stock, Esq., Crowell and
Moring, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004
(Certified Mail)
Robert Wilson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
/lh

1042

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

JUN 2 3 \992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
..

v.
STONEWAY CONCRETE,

CIVIL PENALTY PROCEEDING
Docket No. WEST 91-640-M
A. C. No. 45-03180-05506
Black River Site

Respondent
ORDER OF DISMISSAL

Before:

Judqe Merlin

On March 6, 1992, an order to show cause was issued directing the operator to file an answer to the penalty proposal. On
March 20, 1992, the operator filed a letter stating that a
settlement had been reached in this case on November 15, 1991.
The operator also enclosed a copy of a letter dated November 15,
1991, addressed to the Seattle Solicitor confirming the settlement agreement and a copy of a check for $131.50 the settlement
amount. On April 13, 1992, an order was issued accepting the
operator's March 20 letter as a response to the March 6 show
cause order and directing the Solicitor to file the settlement
motion or show cause why the case should not be dismissed. The
file'contains the return receipt showing that the Solicitor
received a copy of the April 13 order on April 15, 1992. The
Solicitor has failed to respond to the April 13 order.
This Solicitor routinely fails to respond to show cause
ordersu orders to submit information and other orders issued by
the Chief Administrative Law Judge. In virtually all his cases,
it has been necessary to repeatedly remind him of orders which
require him to take action. As I have stated on prior occasions,
the Office of the Chief Administrative Law Judge is simply too
busy to keep calling and writing this Seattle Solicitor. In any
eventu these reminders are of no effect. The Solicitor's failure
to respond here is at one with his constant and continual disregard of duly issued orders. In this the Seattle Solicitor stands
alone because all other Solicitors comply with commission orders.
His persistent dereliction of duty, of which this case is but one
example, cannot be countenancedo
Only the Commission can approve a settlement of a penalty
that has been contested under section 105(a) of the Mine Act. 30
§ 820(k).
In light of the Solicitor's failure to respond to the
show cause order dated April 13, 1992, this penalty petition must
be dismissed.

1043

Accordingly, it is ORDERED that the this case be DISMISSED.
~----~

Paul Merlin
Chief Administrative Law Judge
Distribution:
Ernest Scott, Esq., Office of the Solicitor, U. S. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 (Certified Mail)
Mr. Ike Brown, Stoneway Concrete, 9125 10th Avenue South, Seattle, WA 98108 (Certified Mail)
Douglas White, Esq., Counsel Trial Litigation, Office of the
Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
(Hand Delivered)
/gl

1044

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, O.C.

20006

~JUN 2 3 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.

Docket No. WEST 91-444-M
A. C. No. 45-03180-05505
Black River Quarry

STONEWAY CONCRETE,

Respondent
ORDER OF DISMISSAL

Before:

Judge Merlin

on May 22, 1991, the operator's request for a hearing was
received by this Commission for docketing.
On November 13, 1991, my law clerk telephoned the Seattle
Solicitor reminding him to file the penalty petition which he
promised to do, but did not. on March 6, 1992, the Commission's
Docket Office again telephoned the Solicitor but he did nothing.
Finally, on April 9, 1992, an order was issued directing the
Solicitor to show cause why this case should not be dismissed for
failure to file a penalty proposal. The file contains the return
receipt card showing that the Solicitor received a copy of this
order on April 14, 1992. The Solicitor has failed to respond.
This case is now over a year old and the Commission has heard
nothing from the Solicitoro
The Seattle Solicitor in this case routinely fails to
respond to show cause ordersv orders to submit information and
other orders issued by the Chief Administrative Law Judge. It
has been necessary to repeatedly remind him of orders which
require him to take actiono But even these reminders are of no
effecto As I have stated on prior occasions 1 the Office of the
Chief Administrative Law Judge is simply too busy to keep calling
and writing this Seattle Solicitoro In his constant and continual disregard of duly issued orders, this Solicitor stands alone.
His persistent dereliction of duty cannot be countenancedo
In light of the foregoing, it is ORDERED that this case be
DISMISSED"

Paul Merlin
Chief Administrative Law Judge

1045

Distribution:
Ernest Scott, Esq., Office of the Solicitor, U. s. Department of
Labor, 1111 Third Avenue, suite 945, Seattle, WA 98101 (Certified Mail)
Mr. Ike Brown, Stoneway Concrete, 9125 10th Avenue south, Seattle, WA 98108 (Certified Mail)
Douglas White, Esq., Counsel Trial Litigation, Office of the
Sol~citor, U. s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
(Hand Delivered)
/gl

1046

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
DEATLEY COMPANY,
Respondent

20006

CIVIL PENALTY PROCEEDING

..
.

Docket No. WEST 91-5-M
A. C. No. 10-01658-05505
Plant #1

:

ORDER OF DISMISSAL
Before:

Judge Merlin

on October 1., 1990, the operator's request for a hearing was
received by this Commission· for docketing.
On January 24, 1992, the Commission's Docket Office telephoned the Seattle Solicitor reminding him to file the penalty
petition which he said he would do, but did not. on March 6,
1992, the Commission's Docket Office again telephoned the Solicitor but he did nothing. Finally, on April 29, 1992, an order was
issued directing the Solicitor to show cause why this case should
not be dismissed for failure to file a penalty proposal. The
file contains the return receipt card showing that the Solicitor
received a copy of this order on May 4u 19920 The Solicitor has
failed to respondo This case is well over a year old and the
commission has heard nothing from the Solicitor.
The Seattle Solicitor in this case routinely fails to
respond to show cause orders, orders to submit information and
other orders issued by the Chief Administrative Law Judge. It
has been necessary to repeatedly remind him of orders which
require him to take action. But even these reminders are of no
effect. As I have stated on prior occasions, the Office of the
Chief Administrative Law Judge is simply too busy to keep calling
and writing this Seattle Solicitor. In his constant and continual disregard of duly issued orders, this Solicitor stands alone.
His persistent dereliction of duty cannot be countenanced.
In light of the foregoing, it is ORDERED that this case be
DISMISSED.

Paul Merlin
Chief Administrative Law Judge
1047

Distribution:
Ernest Scott, Esq., Office of the Solicitor, u. s. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 (Certified Mail)
Mr. John Hjaltalin, Division Manager, DeAtley Company, 3665 Snake
River Avenue, P. o. Box 648, Lewiston, ID 83501 (Certified
Mail)
Douglas White, Esq., Counsel Trial Litigation, Office of the
Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
(Hand Delivered)
/gl

1048

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

JUN 231992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
KLAMATH PACIFIC CORPORATION,
Respondent

CIVIL PENALTY PROCEEDING

.
.
0

Docket No. WEST 91-515-M
A. C. No. 35-00490-05509
Stukel Mt. Crusher & Wash
Plant

ORDER OF DISMISSAL
Before:

Judge Merlin

This case is before me pursuant to the Commission's remand
dated April 21, 1992.
On April 22, 1992, I issued an order instructing the parties
to confer about possible settlement and directing the Seattle
Solicitor to advise me within 21 days as to the results of these
discussions. The Solicitor did not respond. Therefore, on
May 18, 1992, an order was issue directing the Solicitor to
advise whether the case could be settled or show cause why it
should not be dismissed. The file contains the return receipt
card showing that the Solicitor received the show cause order on
May 2lp 19920 once again, the Solicitor has failed to respond.
The Seattle Solicitor in this case routinely fails to
respond to show cause ordersu orders to submit information and
other orders issued by the Chief Administrative Law Judge.
It
has been necessary to repeatedly remind him of orders which
require him to take action.
But even these reminders are of no
effecto As I have stated on prior occasionsu the Office of the
Chief Administrative Law Judge is simply too busy to keep calling
and writing this Seattle Solicitoro
In his constant and continual disregard of duly issued orders, this Solicitor stands alone.
His persistent dereliction of duty cannot be countenanced.
In light of the foregoing, it is ORDERED that the penalty
petition in this case be DISMISSED.

Paul Merlin
Chief Administrative Law Judge

1049

Distribution:
Ernest Scott, Jr., Esq., Office of the Solicitor, U. s. Department of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101
(Certified Mail)
Mr. Ron Stewart, Safety Officer, Klamath Pacific Corp., 2918
Edison Avenue, Klamath Falls, OR 97603 (Certified Mail)
Douglas White, Esq., Office of the Solicitor, U. s. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
/gl

1050

FEDERAL MINE SAFETY AND HEAL TH REVIEW COM MISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE

FALLS CHURCH, VIRGINIA

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

)

22041

CIVIL PENALTY PROCEEDING

)

)
)
)

Master Docket No. 91-1
Docket No. WEVA 91-1659
A.C. No. 46-06850-035490

)

DARBET, INCORPORATED,
Respondent

)

Mine No. 1

)

DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On June 2, 1992, the Secretary filed a motion to approve
a settlement between the parties in the above case.
The case
includes three alleged violations of 30 C.F.R. § 70.209(b), which
was originally assessed at $1,000. The Secretary continues to
assert that the violation resulted from a deliberate act, which
is denied by the mine operator. The degree of negligence is
disputed, and the parties agree to the reduction in the total
penalties from $3,000 to $2,400.

I have considered the motion in the light of the criteria
in section llO(i) of the Act and conclude that it should be
approvedo
Accordingly the settlement motion is APPROVED"
The
operator
ordered to pay within 30 days of the date of this
order the sum of $2,400 for the violation charged in this
proceeding.
. .-,

#£UE

"'

I

#l:i~d:_/vid'--·

U. James
A. Broderick
Administrative Law Judge
Di tribution;
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
Darwin Rowe, Darbet, Incorporated, Post Office Box 27, Iaeger, WV
24844 (Certified Mail)

/fb

1051

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG Pl KE
FALLS CHURCH, VIRGINIA

22041

JUN 2 4 1992
DISCRIMINATION PROCEEDING

MARVIN DAVID WARREN,
Complainant

v.

Docket No. KENT 91-1036-D
MSHA Case No. MADI CD 91-01

WEBSTER COUNTY COAL CORPORATION,:
Respondent

Retiki Mine

ORDER OF DISMISSAL
Before:

Judge Weisberger

On June 22, 1992, Complainant filed a Motion to Withdraw
Complaint indicating that he has resolved his differences with
Webster County Coal Corporation.
Accordingly, the Motion is Granted.
dismiss.ea with prejudice.

This case is ordered

l_---1
vram
isberger
Administrative Law Judge
Distribution~

Mr. Marvin David Warren, Box 7209, Route 1, Highway 145, Corydon,
KY 42406 (Certified Mail)
Susan E. Chetlinr Esq., Webster County Coal Corporation, 2525
Harrodsburg Road, Suite 300 Lexington, KY 40504-3359 (Certified
1viail

J. Michael Klise, Esq., Crowell & Moring, 1001 Pennsylvania Ave.,
N.W. Washingtonr D.C, 20004-2595 (Certified Mail)
nb

10 52

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266 I FTS 564-5266

JUN 2 61992
MANSEL JOHN SAFFELL,
Complainant

.

DISCRIMINATION PROCEEDING
Docket No. WEST 90-174-DM

v.

WE MD 90-07
NATIONAL CEMENT COMPANY 1
Respondent

~

DECISION
Appearances:

James E. Millar;· Esq., Bakersfield, california,
for Complainant;
c. Gregory Ruf fenach, Esq., SMITH, HEENAN & ALTHEN,
Washington, D.C.,
for Respondent.

Before:

Judge Morris

This case involves a discrimination complaint filed by
Mansel John Saffell against Respondent National Cement Company of
california (hereafter 11 NCC 11 ) /1 pursuant to the Federal Mine Safety
and Health Act of 19770 30 UoSoCo § 801 et~ (the UIAct"L
The applicable portion of the Mine Act 0 Section l05(c)(l) ~
in its pertinent portion provides as follows~
Discrimination of interference prohibited~ complaint0 investigation~ determination 0 hearing
No person shall 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 for e:nployment in any coal or other
mine subject to this [Act] because such miner,
representative of miners or applicant for anployment 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 •••
30 u.s.c. § 815(c)(l).

1053

Applicable case Law
In order to establish a prim.a facie case of discrimination
under Section 105(c) of the Act, a complaining miner bears the
burden of production and proof to establish (1) that he engaged
in protected activity and (2); that the adverse action complained
of was motivated in any part by that activity. Secretary on
behalf of Pasula v. Consolidation Coal Company, 2 FMSHRC 2768
(1980), rev'd on other grounds sub nom.; Consolidation Coal
Company v. Marshall, 663 F.2d ·1211 (3d Cir. 1981)7 Secretary on
behalf of R.obinette v. United Castle Coal Company, 3 FMSHRC 803
(1981); Secretary on behalf of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1982). The operator
may rebut the prima facie by showing either that no protected
activity occurred or that the adverse action was in no way
motivated by protected activity.
If an operator cannot rebut the
prima facie case in this mann.er, i t may nevertheless affirmatively defend by proving that it was also motivated by the miners'
unprotected activities alone.
The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not shift from the Complainant. Robinette, supra.
See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 198); and Donovan V:-Stafford Construction Company, No. 83-1566 D.C. Cir.~~
(April 20, 1984) (specifically approving the Commission's PasulaRobinette test). See also NLRB v. Transportation Management Corporation, 462 U.S. 393, 397-413 (1983) where the Court approved
the NLRB's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidenceu illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508u 2510-11 (Novo 1981) v rev'd on other grounds sub nom. Donovan Vo Phelps Dodge Corpo 709 F.2d 86 (D.C. Cir. 1982)u Sammons
. Mine Services Co. 9 6 FMSHRC 1391 9 1398-99 (June 1984). As the
Eighth Circuit analogously stated with regard to discrimination
cases arising under the National Labor Relations Act in NLRB v.
Melrose Processing Co~u 351 F.2d 693u 698 (8th Cir. 1965)~
It would indeed be the unusual case in which the
link between the discharge and the [protected]
activity could be supplied exclusively by direct
evidence. Intent is subjective and in many cases
the discrimination can be proven only by the use
of circumstantial evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the
[NLRB] is free to draw any reasonable inferences.

1054

Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity1
coincidence in time between the protected activity and the adverse action complained of; and disparate treatment of the
complaining miner by the operator.
Procedural History
on January 22, 1992, a limited hearing took place in
Ontario, california. The purpose of the hearing was to determine
whether the protected activities alleged in the complaint were
investigated by the Secretary of Labor as required by the Act.
As a result of the evidence received at the hearing, the
Judge, on January 31, 1992, issued an order ruling that Complainant had complied with the Act and the Commission ruling in Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (April 1991) . - Subsequently, after notice to the parties, a hearing on the
merits was held in Bakersfield, California, on March 31, 1992.
Both parties filed post-trial briefs.
Background
MANSEL JOHN SAFFELL began working at the Lebec, California,
plant in 1980. At that time, the plant was owned by General
Portland. The plant was later purchased by LaFarge and then by
NCC. The plant produces cEment powder.
(Tr. 54).
Mro Saffell was hired by General Portland as a production
foremano He continued to work in that capacity both for LaFarge
and for NCCo In generalv his job involved the supervision of
work crews engaged in the production of cement. He conducted
inspections, and was responsible for reporting malfunctions and
safety conditions at the plant.
(Tr. 54, 55) ..
Prior to his Employment with General Portland, Mr& Saffell
had worked for Penn-Dixie, also a cement production company, for
eight or nine years. He had received specialized safety training relating to the cEment industry and was awarded an MSHA instructorgs training certificate. '!his certificate empowered him
to train other Employees in how to give safety dEmonstrations and
conduct safety SEminars, etc. {Tr. 56, 57).
While the plant was owned by General Portland, Mr. Saffell
was directly involved in maintaining safety, serving as Chairman
of the communications safety committee for two or three years.
He continued in this capacity when LaFarge bought the plant.

1055

After NCC purchased the plant in 1987 or 1988, Mr. Saffell
noticed a decline in the emphasis on monthly executive safety
council meetings, which involved both hourly and salaried employees. The safety council wrote up safe work procedures and discussed various safety items, including potentially unsafe conditions and remedies. Safety awards were given for no-lost-time
accidents, no doctor-reported incidents, etc.
(Tr. 57, 59).
All of these safety functions ceased when NCC took over. In
fact, Mr. Saffell received a grievance from an hourly employee
complaining about the company's failure to hold monthly safety
meetings.
(Tr. 58-60; Ex. C-4}.
After NCC took over, Mr. Saffell noted a gradual neglect in
maintaining the plant in a safe condition. NCC stopped the previous practice of assigning an electrician to work the 3 p.m. to
11 p.m. and the 11 p.m. to 7 a.m. shifts. For some reason, NCC
wanted a lot of lights turned off at night.
In particular, the
lighting situation began to deteriorate to the point where it became extremely dangerous to work at the plant at night.
(Tr. 60) •
In May of 1989, Mr. Saffell suffered an industrial injury
while digging in a clinker discharge tunnel at night.
(Tr. 61;
Ex. C-5). The lights in the tunnel had not been maintained and
did not work. After Mr. Saffell cleared the discharge tunnel, a
hot clinker fell on the ground. Because qf the lack of lighting,
he could not see that he was standing on the hot clinker, which
burned his feet.
(Tr. 61, 6 2) •
Mro Saffell tried to get NCC to repair the safety defects at
the plant by submitting written requests for maintenance worku
known as Job Request Tickets ( 01 JRTs 11 ) and work orders.
(Tr o 62)"
Copies of various undated JRTs and work orders are in evidence
as Complainantgs Exhibit 6)0 However, he found that some of the
necessary work was not being done all the time.
(Tr. 67, 68,
101)

0

Protected Activity
Mro Saffell attempted to solve the lighting problems at NCCo
The JRTs and work orders were assigned to an electrician. 'Ihe
problems that required planning were turned in to Jess Kemple of
the electrical department.
(Tr. 67)o '!he work was not done all
of the time.
(Tro 67-68).
On July 12, 1989, a daily planning meeting (about 6:25 a.m.
to 7 a.m.) took place. Present were Byron McMichael (plant manager), Bill Russell (chief electrician}, Jim Kemple (electrical

1056

foreman), George Watson (maintenance planner), Carl Hawkins
(repair foreman), John Simms (maintenance planner), Phil Messer
(production manager), Wally Bingham (repair foreman), and
Chuck Luesada (labor foreman).
(Tr. 68-69).
Mr. Saffell asked Jim Kemple if the work orders were going
to be done. He didn't answer. Mr. Saffell then said that if the
company wasn't going to repair the poor lighting around the plant
he (Saffell) would get an outside agency, namely MSHA to repair
them. (Tr. 69-70).
The next day at a similar meeting, the same men were present.
Mr. Saffell brought up the work orders and Mr. Kemple said they
were not going to be taken care of. (Tr. 70). Mr. Saffell said
if they were not going to be taken care of, he would make a
report to MSHA. (Tr. 71) •
Mr. McMichael and Mr. Messer made no comment on the subject.
There was no reacti.on from anyone in the room.
(Tr. 7 2) •

CTr. 71).

The following day there was another meeting and when
Mr. Kemple said the conditions would not be corrected, Mr. Saffell went to his office and called Bill Willson (Supervisor of
MSHA, San Bernardino Office). (Tr. 72) Mr. Saffell also filed a
written complaint with MSHA. 'Ihe written complaint dated July
15, 1989, addressed the "lighting situation." The complaint
generally recites Mr. Saffell's testimony. (Ex. C-1).
Concerning the discussion of the lighting conditions Mr. McMichael described MrG Saffell as being hostile and volatile to
Mro Kemple, In additionu Mro Saffell was dealing with Mro Kemple
without the lattergs boss being presento (Tro 14u 136) o In any
eventu Mro McMichael talked to Mro Russell (Mro Kempleijs boss)o
Mro Russell showed Mro McMichael what they were working on and he
was satisfied. (Tr. 136). Mr. McMichael felt this was the wrong
area to address Mr. Saffell's comments. He felt Mr. Saffell
should have seen him and the electrical manager so they could
talk privately in detailo (Tro 136-138)0
It is clear that under the Mine Act~ Mr. Sa ff ell had a statutory right to voice his concern about safety matters and to make
safety complaints to MSHA.
In addition, on October 16, 1989, Mr. Saffell also wrote to
Mr. McMichael, the NCC plant manager, complaining about his assignments as relief foreman. Since this letter refers to
Mr. Saffell's prior complaints about inadequate lights, I consider it also to be a protected activity. 'lbe letter {Ex. 12) is
also part of the Commission file. It reads, in part, as follows:

1057

At this particular time I am assigned to Ron
Gibson's shift while he is filling in for Jim
Young. Why? If I'm the Relief Foreman, then
I'm the Relief Foreman. Why do I get the "junk
shift" and not the "gravy." When I was the
Relief Foreman the last time, I filled in for
Jim Young, and so did Doshier when he worked
Relief so I know it's not because of past practice. I accepted this. situation at first, but
I kept wondering why. Am I going to be assigned
to just the shifts that Gibson doesn't want, or
what? I never gave it any thought until a couple
of the salaried people made the comment that
this is revenge for complaining about the lights.
They were joking when they said it, but it got
me to thinking.
Direct Evidence of Discrimination
As a threshold matter, it is apparent that the record fails
to disclose any direct evidence of discrimination as to Mr. Saffell 's protected activity. However, direct evidence is seldom
seen.. Accordingly, it is appropriate to consider any circumstantial indicia that might be involved in the case.
Knowledge of Protected Activity
NCC admits it knew of Mr. Saffell's safety complaints. The
plant manager, Mr. McMichael, was present at the planning meeting
when Mro Saffell confronted Mro Kemple.
(Tro 168-176)0
Hostility to Protected Activity
There was some hostility shown by the electrical manager to
Mro Saffellu but NCC's management showed no hostility whatsoever
to himo The statements by Mr. Saffell were treated matter-offactlyo
(Tro 72u 85-86u 114u 117)0 Compare Hicks v. Cobra
Mininge Inc.r et al.u 12 FMSHRC 563, 568 (Wersberger, J.).
The failure of management to manifest hostility, displeasureu or anger appears to confirm Mr. McMichael's testimony that
NCC treats complaints to federal agencies as an exercise of
important statutory rights and does not discriminate against
employees who exercise such rights. (Tr. 150-151).

1058

Coincidence in Time
On October 16, 1989, Mr. Saffell wrote to Mr. McMichael.
The letter principally complains about job assignments to
Mr. Saffell as a relief foreman. However, the lighting conditions were mentioned and I consider the letter to be a protected
activity. such activity and the protected activity in July 1989
bear little coincidence in time to adverse action in December
1989. In Larry Cody v. Texas Sand and Gravel Company, 13 FMSHRC
606, 668 (1992), it was held that adverse action was not motivated by a two-week-old safety complaint~ See also Ernie L. Bruno
v. Cyprus Plateau Mining Corporation, 10 FMSHRC 1049, 1055
(1988).
Disparate Treatment
Mr. Saffell asserts he wa.s subject to disparate treatment
when he left work. Specifically, he claims other employees have
missed work for extended periods without permission and have not
been subject to adverse action.
(Tr. 93, 94). In support of the
disparate treatment claim, Mr. Saffell introduced into evidence
the employment information concerning three hourly employees,
namely Robinson, Abbott, and Dunlop. (Ex. C-11, C-12).
However, employment actions relating to hourly employees
Robinson, Abbott, and Dunlop are regulated by terms of the collective bargaining agreement.
(Tr. 132-134, 150). 'lbese rules
do not apply to management level employees such as Mr. saffell.
(Tr. 134, 140)0 In any event, the employment file of Mr. Dunlop
received in evidence indicates the employee was discharged for
his attendance-related problems
Further, the Abbott personnel
file, also received in evidence, involved alleged racial slurs
against a Ms, Gloria Robinson. Like Mr. Dunlop's, Ms. Robinson's
employment is governed by the terms of the collective bargaining
agreement. In any event, Ms. Robinson returned to work the fol- ·
lowing day with a reasonable explanation for having left work.
o

The circumstantial evidence frequently relied upon fails to
establish an inference of discriminatory conduct by NCC.
Events Involving Job Assignments
After making his complaint to MSHA, Mr. Saffell noticed certain changes i.n his job assignments that he attributed to the
fact that he had made the complaint. Mr. Saffell was working as
a relief foreman when he noticed the changes.

1059

As Mr. Saffell explained, the advantage of the relief foreman's job is that when you are not filling in for someone from
production, which involves night and swing shifts, you normally
work a Monday to Friday schedule, .with weekends off. When Phil
Messer offered Mr. Saffell the relief foreman's position, these
advantages were pointed out to him. When he had previously
served as a relief foreman, he worked a Monday to Friday schedule
when he was not filling in for someone.
(Tr. 74-77).
The first example he gave of adverse changes in his job assignment as relief foreman concerned the procedure for covering a
shift when a foreman called in sick. The normal procedure was
for the foreman on the preceding shift to work an extra four
hours and the foreman on the following shift to report in four
hours early, thus covering the eight-hour shift of the absent
foreman. After Mr. Saffell complained to MSHA, the company required him to report for work to cover the missing shift. He
testified this was "not the $,t.andard procedure at all."
( Tr • 7 6 , 7 7 ) •
A further example of adverse job changes concerned working
holidays. Normally, a relief foreman had holidays off, absent
special circumstances, if he was not filling in for someone on
vacationo After Mr. saffell complained to MSHA, the company
required him to work on a holiday and gave another employee, who
should have worked the holiday, the day off. As Mr. Saffell
testified, "this just wasn't the norm."
(Tr. 7 7-7 8) •
An additional example concerned the company's failure to
assign Mr. saffell to cover the vacation of the foreman assigned
to the primary guarry o When Mr o Saffell had worked as relief
foreman several years beforeu he had been assigned to the quarry
to cover that fore:nanYs vacationo After he complained to MSHAu
instead of being assigned to the quarry, where he would have
worked ten-hour days, Monday through Thursday, he was assigned to
the primary crusher, which involved, among other things, working
swing and graveyard shifts. The company gave the more desirable
quarry assignment to the primary crusher foremano As Mro Saffell
explainedv no special expertise was required for him to fill in
at the quarryo
(Tr. 78u 79 11 187).
As plant manager, Mr. McMichael would be in a better position than Mr. saff ell to know why assignments were made.
Mr. McMichael testified that in the fall of
1989 he moved production foreman Ron Gibson up
to the quarry to cover for vacationing Jim Young.

1060

This transfer was made, on the recommendation
of Gar Summy, because Mr. Gibson had more quarry experience. At the time, Gar Summy was a
quality control quarry raw materials manager.
Mr. Saffell had no quarry experience and
Mr. Gibson would be better suited to supervise
the quarry crew. A relief foreman would not
automatically move to fill in for a quarry
foreman.
CTr. 145, 146).
The last example concerned Mr. Saffell's permanent assignment to the dust dump. Normally, when a relief foreman was not
covering for another foreman on vacation, for example, he would
help out with assignments in the maintenance department. After
Mr. Saffell complained to MSHA, he was permanently assigned, when
not covering a vacation, to spend his eight-hour shift watering
the dust in the dust dump.
(Tr. 79, 80).
To Mr. Saffell's knowledge, no one had ever been permanently
assigned to spend his entire shift watering the dust. He testified it took about an hour out of a regular shift to water the
dust.
(Tr. 80, 186). As the company's witness, Mr. Gibson
stated "it doesn't take eight hours to water the dust down. You
set the sprinkler, you can go off for two or three hours, do your
other routine job checks that you normally do and come b:lck."
Mr. Gibson had never been ordered to stay at the dust dump for
eight hours. He agreed that the dust dump assignment is not
sought after.
{Tr. 129, 130).
After complaining to MSHAu Mro Saffell was forced to spend
all day at the dump andu as he statedu air was to move the hose
all the timev keep it goingu keep it moving all the time. By the
time I would get it set up in one placeu they wanted it to run
for 15-20 minutes and then moved to another one, and then moved
to another one. '!his wasnwt just for that one day, this was when
I was not covering a shifto 11
(Tro 186). After a time of dragging the hosev Mr. Saffell hooked up a device on his personal
pick-up so he could move the hose around without having to drag
i to
(Tr • 8 0 } o
Mr. McMichael, who would know why assignments
are made, indicated the assignment to the dust
dump was due to increased environmental awareness at the time.
(Tr. 148-149).

1061

On October 16, 1989, Mr. Saffell wrote a letter to
Mr. McMichael describing the manner in which the company was
discriminating against him in job assignments.
(Tr. 84; Ex.
c-7). Mr. McMichael claims to have directed one or two other
company employees to respond to Mr. Sa ff ell's letter, but he
admitted he did not know if they had done so. Mr. Saffell never
received any response from the company to his complaints about
such discrimination.
(Tr. 85, 177, 186).
Mr. Saffell also noticed several other changes at work following his complaint to MSHA. His authority began to be questioned, especially within the electrical department. He was told
they didn't work for him. His instructions to the electricians
were ignored and the electrical foreman, Mr. Kemple, did nothing
about it.
(Tr. 80, 81). Mr. Saffell gave an example involving
his attempt to call out an electrician to come to the plant. He
tried to reach the employee three times by phone, without success.
The electrician claimed Mr. Saffell had not called him. Mr. Saffell believed the company had·a monitoring device hooked to the
phone line that would prove he had made the calls.
(Mr. McMichael refused to check the phone log and refused to back Mr.
Saffell's authority in the dispute.
At the hearing, Mr. McMichael did not doubt that Mr. Saffell
made the telephone call but he stated the phone monitor was not
hooked up.
(Tr. 81, 138).
According to Mr. McMichael, the telephone call
incident involved one of several occasions when
he was less than satisfied with Mr. Saffell's
performance as a management employee. When this
incident aroseu Mro Saffell was very hostile,
olentu and abrasiveo A meeting was held to
discuss the problem.
(Tr. 81, 138). Present
at the meeting were Mr. McMichael, Mr. Russell
(electrical supervisor manager), Mr. Kemple
(electrical supervisor)u and Tony Burn (instrument man)o Mro McMichael felt the meeting
should have been handled in a pleasant, formal,
and professional environment. Instead, Mr. Saffell became very hostile, ran out of the room
sayingv ~You haven 1 t heard the end of this."
Mro McMichael stated he wouldn 9 t accept such
behavior from his children.
(Tr9 139)0

1062

Discussion
Under different circumstances, the described adverse job
assignments might be considered the evidence of discriminatory
intent. However, Mr. Saffell was a relief foreman. It is uncontroverted that he was to fill in "for vacation and/or extended
absences." The ve+y nature of his job as relief foreman indicates Mr. Saffell could have anticipated many changes in his work
assignments. As he stated in his letter dated January 10, 1991
(Ex. 17), as relief foreman he covered for the following people:
Foreman

Assignment

Scheduled Shift

Chuck Luesada

Finish Silo/Yard
Foreman

7 a.m. - 3 p.m.
Monday - Friday

Jim Young

Quarry/Primary
Foreman

7 a.m. - 5:30 p.m.
Monday - Thursday

All Maintenance
Foreman

Ma in tenance

7 a.m. - 3 p.m.
Monday - Friday

All Production
Foreman

Production

Various Shifts

Ray McPherson

Garage Foreman

7 a .m. - 3 p .m.
Monday - Friday

"''•·

In sum 17 I credit Mro McMichael 0 s testimony that there was
nothing unusual nor abnormal about Mr. Saffellus jobso (Tr. 149).
Further, I credit Ron Gibson, the NCC production foreman and
a relief foreman himself, who indicated it is the company's discretion as to what the relief foreman doeso
Saffell further described the company 1 s attitude after
he complained to MSHA 17 "It was like I was there but I didn't
really exist. 01 The company 1 s treatment of Mr .. Saffell finally
forced him to seek the help of Oro Kellawan. (Tr. 84, 86; Ex.
C-8)0 Dre Kellewan diagnosed Mr~ Saffell as suffering from
stress due to the events at work.
Mro

1063

Further Discussion and Findings
The evidence of job assignments fails to establish any discriminatory intent by NCC after Mr. Sa.ffell filed his MSHA
complaint.
As a threshold matter, NCC did not unilaterally appoint
Mr. Saffell to the relief foreman job. Rather, Phil Messer
offered him the position.
(Tr. 77>.
A portion of the evidence concerns what Mr. Saffell considers to be adverse job assignments while he was serving as the
relief foreman. It is true that different jobs were assigned.
However, the very nature of the relief foreman's job is to cover
for many foremen who may be on vacation. (See Ex. 17 for list of
individuals for whom the relief foreman could substitute.)
As
Mr. Saffell himself stated: "When you work the relief job, when
you are not assigned as vacation relief, you work Monday to Friday, weekends and holidays off, unless special circumstances."
(Tr. 77). "I covered the vacations and the production, and I
covered them in the other areas.
(Tr. 7 8). There were two_
other relief foremen and 11 we were more or less assigned daily to
whatever come up that needed to be taken care of. 11 (Tr. 7 8, 7 9) •
11

In sum, no credible evidence supports the view that NCC
discriminated against Mr. Saffell in job assignments when he was
the relief foreman.
Events of December 27, 1989
Things finally came to a head on December 2 7 u 198 9"
Mro Saff
had been away from work for several days due to the
illness and death of his wife 1 s mother. On December 27, he was
ordered to attend a meeting with Mr. McMichael and another company e:nployeeu Phil Messer. Mr. Saffell recounted what happened
at the meeting as followsg
I sat down and Phil made the comment, "I am
sorry to hear about your mother-in-law--my mother
in-law had passed away--I am sorry to hear about
your mother-in-law, you should have gotten in
touch with me directlyo" I said, "Phil, I tried
about 12 different times to get a hold of you • "
And Byron jumped in and said, "Bullshit, you know
where we are all the time, you could have gotten
a hold of us at any given time." I didn't know
what the hell was coming off. I took my radio

1064

and I put it on Phil's desk. I said, "Byron, I
just went through this with Tony Burk and you are
calling me a liar, and I can't ••• " I said,
"Byron, I have been seeing a doctor because of
the stress over filing this Goddamn grievance."
I said he told me if I can't handle it, that I
should walk away from it now. I was in no condition to stay around the plant. His attitude
was just--I couldn't deal with it. It was the
final straw.
I left the office and then I went back and
I told him at that time, I says he told me I
would have to walk away from it if I could. I
said, "I've got to walk away from it." I said,
"I've got to take sick leave, take official
sick leave, ti and I walked out the door and then
I came back in and told him once again.
I said,
"I am taking official '·sick leave, ti and I told him
I was going to send a letter to Mr. Unmacht, and
I made the comment that I was also going to talk
to the Bakersfield, California, reporters who
had been asking me to comment on different things
going on up there. And I left the plant.
I also told him, prior to leaving, that I
was going on official sick leave, and that I
would provide the documentation as soon as I
could, and I left.
(Tr. 87, 88)
Mro McMichael"s version of the meeting is as followsg

we sat down in Mro Messerus office and
Mr" Saffell came in and Phil Messer shared his
condolences with Mro Saffell about his motherin-law, and then I started my list of things
that I wanted to talk with Mr. Saffell a.boutu
and he became just violento Threw his radio
down and says I donvt have to listen to this
any moreo He says I will give you a doctor 0 s
statement that says I can leave work whenever
I want too I thought he was going to get mad,
walk out the doorq cool off and come back and
we are going to talk some more about this, and
I waited in the control room for almost an hour.
And then I asked some of the guys, I said where
did he go? They said he left the plant. I said,
really? I didn't believe it.

Ao

1065

By way of collateral evidence: When Mr. Saffell left the
plant, he believed he was mentally distraught. He didn't call
NCC the next morning because he hadn't gathered his information.
( Tr • 1 0 7 , l 0 8 ) •
Mr. McMichael reviewed his notes and Mr. Messer's notes for
a couple of days after December 27. He expected Mr. Saffell to
come up the next morning with documentation from a medical doctor showing he had been treated .and was given permission to take
off work whenever he felt stressed. When he didn't show up in a
couple or three days, Mr. McMichael decided Mr. Saffell was sincere about resigning. Mr. McMichael made his termination decision around December 31, 1989. (Tr. 183).
On January 2, 1990, Mr. Saffell learned that NCC said he no
longer worked there. He had not been contacted by the company
nor had he been in touch with them after going on sick leave.
(Tr. 91) •
Mr. Saffell had never seen a form for sick leave and NCC
never offered him an opportunity to return to work.
CTr • 9 2 , 9 7) •
Mro McMichael felt that Mr. Saffell's actions were insubordinate. Further, he believed Mr. Saffell had intended to resign.
John Turner also told NCC that Mr. Saffell intended to resign at
the end of the year. (Tr. 141).
In a number of instances, Mr. McMichael was less than satisfied with Mro Saffell as a management employee. These include
the meeting where Mro Saffell became hostile with electrician
Kempleo {Tro 136)0 Alsou the meeting with the instrument people
where Mr. Saffell became hostile, violent, and abrasiveo
(Tro
18 0 139). In additionu Mro McMichael had been told Mro Saffell
left the plant on December 12, 1989. This was when he abandoned
his post.
(Tro 141). Further, he reported he would be off for
his mother-in-law 1 s funeral.
(Tr. 141). This report was made to
the control operator but Mro Saffell could have called Mro McMicha
rectly.
(Tr. 142).
DISCUSSION
On the facts, it appears NCC took adverse action against
Mro Saffell when it refused to reinstate him. However, I conclude such adverse action was not motivated, in whole or in part,
by Mr. Saffell's protected activity. Assuming that NCC's actions
were motivated in part by Mr. Saffell's protected activities, NCC
established by a clear preponderance of the evidence, that it was

1066

also motivated by business reasons and Complainant's unprotected
activities, and that it would have taken the adverse actions in
any event.
For the foregoing reasons, I enter the following:
ORDER
Complainant failed to establish discrimination under the
Mine Act on the part of Respondent and, accordingly, these
proceedings are DISMISSED.

Morris
· strative Law Judge

Dis tributiong

James Eo Millaru Esq.u 1400 Chester Avenue, Suite Eu Bakersfieldu
CA 93301 (Certified Mail)
Michael To Heenanu Esq.u C. Gregory Ruffennach, Esq., SMITH,
HEENAN & ALTHEN, 1110 Vermont Avenue, N.W. 11 Suite 400, Wishington, D.C. 20005-3593 (Certified Mail)

ek

1067

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 291992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
:

Docket No. CENT 92-78-M
A.C. No. 41-02852-05517

v.
Tin Top Sand and Gravel Plant
TEXAS INDUSTRIES, INCORPORATED,
Respondent
DECISION

Appearances:

Olivia Tanyel Harrison, Esq. and Jack Ostrander,
Esq., Office of the Solicitor, U.S. Department
of Labor, Dallas, Texas, for Petitioner;
Bob Williams, Texas Industries, Incorporated,
Weatherford, Texas, for Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil penalty
led by the Secretary of Labor pursuant to Section l05(d) of
Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801
et~, the 11 Act, 11 charging Texas Industries, Incorporated
(Texas Industries) with six violations of mandatory standards.
The general issue before me is whether Texas Industries violated
the cited regulatory standards and, if so, what is the
appropriate civil penalty to be assessed.
Citation No. 3895580 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 56.12025 and charges as
follows~

The spray bar water pump 480 VAC and its
switch gear were not effectively grounded in
that a grounding conductor had not been provided
from the main service near the transformers to
the electrical switch gear about 300 feet away.
The cited standard provides in relevant part that
"[a]ll metal enclosing or encasing electrical circuits shall
be grounded or provided with equivalent protection."

1068

Texas Industries does not dispute that the violation
existed as charged but maintains that it was neither "significant or substantial" nor of serious gravity. Melvin Robertson,
an MSHA mine inspector/electrical with extensive electrical
experience, testified that indeed there was no grounding medium
for the branch circuit to the 35 horsepower starter pump as
charged. According to Inspector Robertson, the National
Electrical Code, which is also used and followed by the Texas
Industries' electrical engineer, provides the relevant industry
standards. These standards were not being followed with respect
to the cited branch circuit. Moreover, Robertson noted that the
National Electrical Code specifically provides that "the earth
shall not be used as the sole equipment grounding conductor" and
therefore the peg ground utilized at the pump site was clearly
inadequate. Inspector Robertson opined, based upon the existing
conditions, that there was a reasonable likelihood for ground
faults to occur resulting in electrical shock or fire. He also
noted that the voltage was sufficient to cause electrocution.
On behalf of Texas Industries, Charles Cleaveland, the
Tin Top Plant Manager at the time the citations were issued,
disagreed with Inspector Robertson's opinion regarding the
severity of the hazards. At the same time, however, Cleaveland
readily acknowledged and qualified his statement by conceding
that he did not have electrical expertise. Under the circumstances I can give Mr. Cleaveland's lay opinion but little
weight. On the other hand, the expert testimony of Inspector
Robertson is persuasive regarding the severity of the hazard
and I have no difficulty in concluding based on that testimony
that the hazard was both "significant and substantial" and
seriouso See Mathies Coal Co, 6 FMSHRC 1 (1984)v U.So Steel
Mining Cov 7 FMSHRC 1125 (1985)0 There is a dearth of evidence
on the issue of negligence and considering the remaining criteria
under Section llO(i) of the Act, I find that a civil penalty of
$100 is appropriate.
The remaining five citations charge violations of the
standard at 30 C.F.R. § 56.141079(a) and each chargesu in
essence, that a flange type bushing or seal keeper on the
ends of a rotating shaft were exposed and not guardedo
These were all located in areas along walkways where an
employee would, according to the inspector, likely get a
hand, finger, or clothing caught in pinchpoints or suffer
injuries from the rotating bolts protruding from the moving
machine part. The specific charges in the citations are set
forth in the appendix attached hereto.
The cited standard, 30 C.F.R. 56.14107(a), reads as follows:
Moving machine parts shall be guarded to
protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys,

1069

flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.
Texas Industries does not _dispute the existence of the
cited violations, but maintains that j:.hey were neither
"significant and substantial" nor serious. According to
MSHA Inspector Robertson, the factual situations involved in
Citation Nos. 3895911, 3895912, and 3895914, were essentially
the same. Each involved an unguarded rotating shaft with
bolts protruding from the rotating shaft and a gap of approximately one-half inch that was unguarded and would permit a hand
or finger to be inserted causing broken bones, lacerations, and
mangled hands and/or fingers. Robertson concluded that the
hazard was "significant and substantial" and serious because of
the close proximity of these unguarded moving machine parts to
walkways at a height of approximately 30 to 40 inches above the
walkway and in areas in which an employee might reach as for a
handrail. He observed that employees were greasing at the time
the citations were issued and that there were grease fittings in
close proximity to the moving machine parts. He testified that
in most cases the grease fittings are directly behind the flange
and noted that greasing does in fact occur at these locations
while the plant is in operation.
With irespect to Citation Nos. 3895915 and 3895975, Inspector
Robertson observed that the cited unprotected gaps exposing the
moving machine parts were larger than those previously cited and
therefore would permit an employee's clothing to become entangled
by the moving parts. He concluded that these hazards were less
severe than where the hand or fingers could become mangled.
Plant Manager Charles Cleaveland testified on the other
hand that these citations did not present a major safety hazard.
He based his conclusion upon the fact that the plant had been
in operation since 1975, had been inspected many times by 10 or
11 different inspectors and that this was the first time these
conditions had been cited. In addition, he noted that the cited
areas have work platforms with handrails. It was therefore his
opinion that it was unlikely for employees to use the flanges
as handrails. He further testified that serious injury findings
in these cases was inconsistent with findings in another citation
(Citation No. 3895913} which the same Inspector found not to be
11
significant and substantial."
In rebuttal Inspector Robertson observed that the conditions
found in Citation No. 3895913 were distinguishable in that a bar
provided partial protection to employees and would have hindered
employees from exposure to the hazardous moving machine part.
Inspector Robertson also testified that in 1988 he had specifically informed previous Plant Manager Fuller of the hazardous
nature of the exposed flanges and advised him to provide guards
for those exposed flanges.

1070

Under the circumstances I find that the Secretary has
met her burden of proving that the violations were indeed
"significant and substantial" and serious. In light of
the inspector's testimony regarding previous warnings to
management to guard the cited.condit.:j.ons in 1988, it is
also clear that the operator is chargeable with negligence.
Considering all of the criteria under § llO(i) of the Act,
I find that the Secretary's proposed penalties are indeed
appropriate.
ORDER
Texas Industries, Incorporated, is hereby directed to pay
civil penalties of $456 within 30 days of the date of this
decision.

Distribution:
Olivia Tanyel Harrison, Esq. and Jack F. Ostrander, Esq., Office
of the Solicitor, U.S. Department of Labor, 525 Griffin Street,
Suite SOlv Dallasp TX 75202 (Certified Mail)
Charles Cleaveland? Texas Industriesp Incorporated, 5211 New Tin
Top Road, Weatherford, TX 76087 (Certified Mail)
/lh

1071

APPENDIX
Citation No. 3895911:
A flange type bushing or seal keeper was
mounted on the end of the No. 128 belt
conveyor drive gear box drive shaft rotating
within an approximately one half inch of the
belt drive guard. The flange is about
40 inches up from the walkway where an
employee would likely get hand or finger into
pinch point.
Citation No. 3895912:
A flange type bushing or seal keeper was
mounted on the end of the No. 127 belt
conveyor gear case 'drive shaft. The belt
heads on the rotating flange came very close
to the drive guard approximately one half
inch and was located about 40 inches up from
the walkway where an employee would travel to
service the area.
Citation No. 3895914:
A guard was not provided for the
rotating flange on the drive shaft of No. 123
belt conveyor gear case shaft. The flange
rotates very near the drive gear· (belt heads
about 1/2 inch from guard) causing a pinch
point about 40 inches up from the access way
that an employee would likely get finger
caught in.
Citation No. 3895915:
A guard was not provided over the
rotating flange on the end of the gear case
shaft of No. 120 belt conveyor. Bolt heads
on the key way area on the flange could catch
clothes of employees. This flange
located
just under where an employee would check oil
in gear case or near where he would grease
pillow block bearing. An employee was
observed greasing in Plant during shift.

1072

Citation No. 3895975:
A flange type bushing or seal keeper
was mounted on the end of the No. 122 belt
conveyor gear case drive shaft. The bolt
heads on the rotating flange came very close
to the drive guard where an employee would
likely get a finger caught in the pinch point
or catch clothes.

1073

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

ndi'

N°r. e-l •I 992

;.":JV'·~

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

22041

1:.....

)

CIVIL PENALTY PROCEEDING

)

)
}

Docket No. KENT 91-1417
A.C. No. 15-02705-03726

)

)

v.
PEABODY COAL COMPANY
Respondent

Camp No. 2 Mine

)
)
)

DECISION
Appearances:

MaryBeth Bernui, Esq., Office of the Solicitor,
United States Department of Labor, Nashville,
Tennessee, for Petitioner;
David R. Joest, Esq., Peabody Coal Company,
Henderson, Kentucky, for Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to § 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801
et~, the "Actv" charging the Peabody Coal Company (Peabody)
under Section 104(d)(l) Citation No. 355!466, with one violation
of the mine operator's ventilation plan.

1

Section 104(d)(l) of the Act provides in part as

follows~

If F upon any inspection of a coal or other minep
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
of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety and
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 the Act.
1074

It is established law that once a ventilation plan is
approved and adopted, its provisions are enforceable at the
mine as mandatory safety standards. Zeigler v. Kleppe, 536 F.2d
398 (D.C. Cir. 1976), Carbon County Coal Co., 6 FMSHRC 1123
(1984), Carbon county Coal.co., 7 FMSHRC 1367 (1985), Jim Walter
Resources, Inc .. , 9 FMSHRC 903 (1987): The general issue before
me is whether Peabody violated the ventilation plan as charged,
whether the violation was "significant and substantial" and/or
the result of "unwarrantable failure," and what, if any, civil
penalty should be assessed.
Citation No. 3551466, charges as follows:
The No. 2 monitoring borehole drilled from
the surface penetrating through the No. 11 coal
Seam into the No. 9 Coal Seam for the purpose of
monitoring the No. 8 and No. 9 seals in the No. 9
Coal Seam, was not properly identified on the
mine map for the No. 11 'Coal seam and as the result
of was mined into destroying the borehole.
It is undisputed that the alleged violation is based upon
provisions of a petition for modification which had been granted
and had become part of the mine operator's approved ventilation
plan. In essence, those provisions required that "the 5 east and
6 east seals shall be mo~itored from a borehole identified on the
mine map as Hole No. 2."
Peabody does not dispute that the
violation occurred as charged but maintains that the violation
was neither "significant and substantial" nor caused by its
"unwarrantable failure" to comply with the applicable law.
The essential facts are not in dispute. Mining operations
at the camp No. 2 Mine are conducted in two seams, the No. 11
seam (upper) and the No. 9 seam (lower). Pursuant to an order
granting a petition for modification of the application of a
mandatory safety standard, Peabody had been monitoring air
quality outside certain seals of abandoned areas in the lower
seam by sampling through boreholes drilled from the surface. On
March 7? 1991, a mining unit in the No. 1 section of the upper
seam mined through one of these methane monitoring boreholes,
the Noo 2 borehole. There seems to be no dispute that this
occurred because the mine map in use in March 1991 erroneously
showed the No. 2 borehole as if it were a core sample drillhole
rather than a monitoring borehole. Core drillholes are plugged
after they are drilled and are normally mined through. The No. 2
borehole should have been clearly marked on the mine map so that
it would not be mined through, however, due to negligence in the
2

The apparent contradiction between the language in the
citation that the No. 2 monitoring borehole monitored the No. 8
and No. 9 seals and the statement in the ventilation plan that
the No. 2 borehole monitored the 5 and 6 East seals was explained
at hearing by MSHA Inspector Smith (See Tr. 31-32).

1075

preparation of the map in the mine engineering office it was not.
It is not disputed that the area in the upper seam through which
the No. 2 borehole passed was not originally projected to be
mined so that marking the No. 2 borehole as a borehole would not
have been critical at the t:.ime·. wheI). the plans changed and
projections for mining that area were added to the map, someone
neglected to mark the No. 2 borehole as it should have been
marked.
In evaluating whether a violation is "significant and
substantial" the Commission in Mathies coal Company, 6 FMSHRC 1
(1984), explained as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard -- that is;· a measure of danger to
safety-contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that 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
an injuryo v U.S. Steel Mining Co.f 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co., 6 FMSHRC 1866 1
1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular
facts surrounding the violation. Secretary of Labor v.
Texasgulf, Inc., 10 FMSHRC 1007 (1987).
The third element of the 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" and that the likelihood of injury must be evaluated in
terms of continued normal mining operations. U.S. Steel Mining
Co., 6 FMSHRC 1573 (1984); Monterey Coal Co., 7 FMSHRC 996
(1985). The time frame for determining if a reasonable

1076

likelihood exists includes the time that a violative condition
existed or would have existed if normal mining operations
continued. Rushton Mining Co., 11 FMSHRC 1432 (1989).
MSHA Inspector Ted Smi.th found the violation in this case
to have been "significant and substantial." He testified that
the roof conditions in the area of the seals was bad and had not
been physically examined for two years. He further noted that
the area behind the seals historically accumulates high levels
of methane, between 30 and 50 percent, and oxygen is depleted in
those areas. He opined that such methane could migrate into the
cavities and cracks of the No. 9 and No. 11 seam and into the
borehole either through a roof fall or cracked seal. According
to Smith, if the methane should escape into these areas, which
were ventilated by the old south fan, the level of methane could
very well be diluted to the explosive 5 to 15 percent range. In
addition, according to Smith, if the continuous miner should
strike the lining of the borehole or limestone it could cause an
ignition. He further opined that the ignition could travel back
down into the No. 9 seam causing a violent explosion and injuring
miners working in both the No. 9 and No. 11 seams.
Peabody argues on the other hand that the violation was
not ''significant and substantial" because the inspector's
scenario required at least three discrete steps: (1) a failure
of the seals monitored by the No. 2 monitoring borehole,
(2) explosive concentrations of methane in the No. 9 seam workings, and (3) sufficient quantities of methane travelling from
the No. 9 seam to the No. 11 seam to cause an explosion. Peabody
argues that the ten previous months of daily monitoring at the
borehole reflects either no methane or occasional negligible
amounts of methane at the borehole andp similarlyp only negligible amounts of methane found at the old south exhaust fan for
several weeks after the incident at issue. Peabody also argues
that it is unlikely that sufficient quantities of methane would
travel from the No. 9 seam to the No. 11 seam to cause an
explosion since the pipe was only one and a quarter inches in
diameter and a pump had to be used to extract samples at the
surfaceo
While it is true that the targeted hazard in this case
would require the coincidence of several events, I nevertheless
find that the Secretary has proven through the credible testimony
of her expert witness that there was a discrete safety hazard
contributed to by the underlying violation and that there was a
reasonable likelihood that the hazard would result in serious
injuries or death. Accordingly, the instant violation meets the
stated criteria to be "significant and substantial." For the
same reasons the violation was also of high gravity.
I do not however find that the Secretary has sustained
her burden of proving that the violation was caused by Peabody's
"unwarrantable failure" to comply with the standard. Unwarrantable failure has been defined by the Commission as aggravated

1077

conduct constituting more than ordinary negligence. See Emery
Mining Corporation, 9 FMSHRC 1997 (1987), Youghiogheny and Ohio
coal Company, 9 FMSHRC 2007 (1987). In this case it is clear
that the instant violation was the direct result of the
inattention of the mine engineering off ice in preparing the
mine map. This inattention constitutes negligence but not of
a particularly aggravated nature. In addition it is noted
that the persons performing and supervising the actual mining
did not know the location of the No. 2 borehole or did not
realize that it was a borehole as a result of the negligent
preparation of the mine map. Absent more I cannot find that
these circumstances constitute .more than simple negligence.
Accordingly, and considering all the facts under section llO(i)
of the Act, I find that a reduction in the proposed civil
penalty to $700 is appropriate.
ORDER
Citation No. 3551466 is modified to a citation issued under
104(a) of the Act and is AFFIRMED as modified. Peabody Coal
Company is directed to pay civil penalties of $700 ithin 30 days
of the date of this decision for th~ation the
§

·
Gar

i
f
Melfck

I

I

f

Judge

703-756 6261
i

tribution:

a

MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
David R. Joest, Esq., Midwest Division Counsel, Peabody Coal
Company; 1951 Barrett Court, P.O. Box 1990, Henderson, KY
42420-1990 (Certified Mail)
\lh

1078

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
22041

FALLS CHURCH, VIRGINIA

JUN 2 91992
RICHARD ALLEN PLASTER,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. VA 91-449-D

FALCON COAL CORPORATION,
Respondent

NORT CD 91-02
Mine No. 1
DECISION

Appearances:

Before:

E. Gay Leonard, Esq., Copeland, Molinary & Bieger,
Abingdon, Virginia, for Complainant;
Thomas R. Scott, Jr., Esq., Street, Street, street,
Scott & Bowman, Grundy, Virginia, for Respondent.

Judge Maurer
STATEMENT OF THE CASE

This proceeding concerns a discrimination complaint filed by
the complainant, Richard Allen Plaster, against the respondentu
Falcon Coal Corporation (Falcon)u pursuant to section l05(c) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq. Mr. Plaster filed his initial complaint with the
Secretary of Labor; Mine Safety and Health Administration (MSHA).
His complaint alleged:
On January 27, 1991 (sic)u I was section electrician at
Falcon Coal Corporation. My battery light went out at
the beginning of the shift (at approximately 3 p.m.).
I made a couple of attempts to have one brought to me
by Mr. Hackney and after he declined to do so and after
talking to the section f oreman 1 I removed myself from
what I considered a hazardous working condition (no
light) and removed myself from the mine to obtain
another light. While I was obtaining another light, a
verbal confrontation occurred between Rick Hackney and
myself because I had removed myself from what I felt
like was a hazardous condition.
During the verbal confrontation with Mr. Hackney, I was
discharged by him. Mr. Hackney just slapped his hands
and said, "You're gone." I then requested him to have
a Federal inspector come to the mine site and I
received no response from him.
1079

Following an investigation of his complaint, it was found by
MSHA to lack merit because a violation of section 105(c) had not
occurred. Mr. Plaster then filed his complaint with this
Commission.
Pursuant to notice, a hearing was conducted in Abingdon,
Virginia, on February 13, 1992. Subsequently, both parties filed
post-hearing briefs and/or proposed findings and conclusions,
which I have considered along with the entire record of
proceedings in this case in making the following decision.
The complainant originally alleged that he was illegally
discharged from his job with Falcon on January 28, 1991, when he
was fired after leaving his work place to come outside the mine
to get a cap light~ Complainant also now alleges that he had
several prior confrontations with Falcon management because of
unrelated safety violations in the mine and he believes that his
discharge on January 28, 1991, was motivated at least in part by
these previous safety complaints. !{espondent, on the other hand,
insists that Plaster was quite properly discharged from his job
solely for insubordination--- the admitted use of abusive
language directed towards his supervisor during a work-related
discussion with that supervisor.
DISCUSSION
Plaster began his employment at Falcon as an electrician/
mechanic on December 4, 1990. He was fired on January 28, 1991.
In the intervening 2-month time perioq, Plaster now claims
to have had several confrontations with the mine foreman, Ricky
Hackneyo Hackney was 9 like Plaster 9 also a certified
slectrician; and the subject of these nconfrontations 11
purportedly was electrical hazards that Plaster was finding in
the mineo Hackney, howeverq flatly denies that there were ever
any confrontations or discussions with Plaster about any unsafe
electrical conditions.
I do believe Plaster found and repaired
several unsafe electrical conditions during his short tenure at
mine, but I do not find credible his allegations that he had
any trouble with Hackney because of ito
I note that there is no
mention made of this in his complaint to MSHA filed January 30,
199lo
My considered opinion after reading this entire record
again
that whatever happened to cause Plaster to be discharged
on January 28, 1991, played out on that day. Hackney had no preexisting agenda to get rid of Plaster. Therefore, I will turn
now to the important events of January 28, 1991, in some detail.
When Plaster went into the mine on January 28, 1991, his cap
light was apparently operating normally. However, in a short
time, it began to go dim even though he claims to have charged it
for 11 hours preceding that shift.

1080

Plaster also claims that the only other prior incident
involving his cap light was resolved virtually without incident
before he went underground. This testimony differs considerably
from that of his section foreman, Allen Perkins and mine foreman
Hackney. They both recall numerous occasions during his 2-month
employment that Plaster had problems with his light. The resolution of this discrepancy in the testimony is probably not too
important except perhaps as it bears on the frustration level of
Perkins and/or Hackney if it is true that this was a frequently
recurring situation.
At any event, shortly after arriving at the section on
January 28, Plaster called Hackney on the surface and told him
about the problem with his light. Hackney told Plaster that he
would get him a new light as soon as possible. Plaster also went
to his section foreman, Perkins, and told him that his light was
going out and that he had already called Hackney and that Hackney
was going to send him one in. Perkins told Plaster to go back to
the feeder area, where another miner was stationed who had a
light, and stay there until Hackney called and said that he was
coming in with his light; then he (Perkins) would send somebody
to the end of the track to get it.
When the replacement light was not forthcoming, Plaster
called outside to Hackney a second time, telling him that his
light had now gone completely out and asking him again to send in
a light as well as a part needed for repair of a shuttle car.
Hackney again told Plaster that he still could not deliver the
light because he was alone outside. Federal regulations and
Virginia state law require that a responsible person be on duty
at all times outside the mine in case of an emergencyo Therefore, Hackney was waiting for Jerry Shortridge to arrive at the
mine office so he could take the light to Plaster. Hackney
seemingly was unaware of itQ but Shortridge arrived in the off ice
area in time to hear Hackney tell someone [probably Plaster] on
the telephone that "[t]here is nobody out here but me.
I have no
way of getting you one."
(Tr. 259).
After the second telephone conversation with Hackney,
?laster requested that his foreman allow him to go out and get
his own light.
Perkins told him to go ahead. Plaster's subsequent unlit trip to the surface was undertaken in at least as
hazardous a condition and probably more so than the situation he
was in at the feeder. He went out of the mine with neither a cap
light nor an operable light on the mantrip. He himself admits it
was hazardous to come out that way but states that 11 it was either
that or stay in there the entire shift without a battery light. 11
It seems to me that a third option, i.e., waiting for someone
else to either bring one in, or getting someone else who had a
light to come out would have been preferable. But, in any event,
he did successfully make it outside without incident.

1081

After arriving on the surface, he went to the supply shed
and was in the process of obtaining a light when he encountered
Hackney. Hackney asked "[W]hat in the hell are you doing?".or
words to that effect. He was angry that Plaster had come out of
the mine. Plaster replied, according to Shortridge, who overheard this exchange, and essentially corroborates Hackney's
version, with words to the effect that he was getting a light.
Hackney responded by berating Plaster: "No, you didn't have to
come outside to get a light. You could have gotten someone else
to have gotten a light." Additionally, Plaster testified that he
added on:
"Your job is up there [indicating inside on the
section]. If you stay here, you will stay on the section where
your job is at." Plaster then said:
"You'll have to take that
up with Perkins." Intimating I suppose that Perkins had ordered
him to go outside and get his own light. Perkins denies this,
but he did allow him to go as opposed to ordering him to go.
Anyway, Hackney replied:
"I will, but right now you're standing
in front of me and I'm taking it up with you." At this point,
Plaster was now angry about being brought up short by Hackney.
According to Shortridge, he is now talking louder than Hackney,
who is also angry. Plaster replies with: "Fuck you, I ain't
staying in there without no light." (Plaster's version) or "Fuck
you, you can't tell me what to do."
(Hackney's version). After
some more disputed conversation which could more properly be
called angry argument, Plaster tells Hackney "fuck you" twice
more, at least according to Hackney and Shortridge. At the third
repetition of this offensive phraseology, Hackney fired Plaster
on the spot. Two days later Plaster filed the complaint at bar.
The general principles governing analysis of discrimination
cases under the Mine Act are well settled. In order to establish
a prima facie case of discrimination under section 105(c) of the
Act, a complaining miner bears the burden of production and proof
in establishing that (1) he engaged in protected activity and (2}
the adverse action complained of was motivated in any part by
that protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev 1 d on other grounds sub nom. Consolidation Coal Co. v.
Marshallq 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April
1981). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the 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 954, 958-59
(D.C. Cir. 1984); Baich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir.
1983) (specifically approving the Commission's Fasula-Robinette

1082

test).
Cf. NLRB v. Transportation Management Corp., 462 U.S.
393, 397-413 (1983) (approving nearly identical test under
National Labor Relations Act).
Of particular importance in this case is the second part of
the complainant's burden of proof. He must make an initial
showing that his discharge was motivated at least in some part by
his protected activity.
If he fails to establish a causal connection between his protected activity, and the adverse action
taken against him, he has failed to prove an essential element of
his case and his complaint is subject to dismissal.
If going outside to get his own light was protected activity, and arguably it was, the adverse action must still be proven
to have been taken as a result of that protected activity in
order to be found discriminatory under the Mine Act.
It seems clear to me from the record in this case that going
outside to get the light wasn'twhatgot him fired.
Hackney
wasn't real happy to see him out there by any means, but had he
just gotten the light and kept his mouth shut, I'm convinced he
wouldn't have gotten fired.
It was solely the insubordinate and
abusive language that got him fired and that is not protected
activity.
Plaster himself testified that Hackney told him just
minutes or even seconds before he was fired:
"If you stay here,
you will stay on the section where your job is at."
(Tr. 58).
This statement is attributed to Hackney by Plaster before he
uttered his insubordinate response. At that point in time he
still had a job. And it is my impression that had he said
nothing further or simply said "OK, I've got the light, I'm going
back in now," that would have been the end of it. He would not
have been firedo
He wasn~t in fact fired until after he said an
angry uufuck youn to Hackney either once or three times, depending
on whose version of the argument you believe. But, no matter how
many times it was, it is undisputed that only after that exchange
was he fired.
That appears to me to be a justifiable firing that
was the immediate and direct result of his insubordinate
languageo
Complainant attempts to justify his outburst by showing that
virtually all the miners, including Hackney himself, use this
type of language with each other on a daily basis 1 and I accept
that as true. However, all the witnesses who testified in this
case 1 save the complainant, also very clearly stated that this
type of language is not directed at one's supervisor during a
serious business discussion, and if it was, they would expect
repercussions.
Perhaps as an illustration of that principle, after Plaster
had departed, Hackney purportedly remarked to Shortridge:
"Nobody is going to stand and cuss me like that."
(Tr. 269).

1083

In summary, complainant has most definitely not shown by a
preponderance of the reliable and probative evidence that his
discharge was motivated in any part by protected activity. He
has therefore failed to meet his burden of proof in this regard.
I concur with the respondent that insubordination, i.e.,
this type of verbal abuse by an employee directed towards his
supervisor, need not be tolerated by any company, and is
certainly not protected activity under section l05(c) of the Mine
Act.
ORDER
In view of the foregoing findings and conclusions, and after
careful consideration of all of the credible evidence and
testimony adduced in this case, I conclude and find that the
complainant has failed to establish a violation of section 105(c)
of the Act. Accordingly, the complaint IS DISMISSED, and the
complainant's claims for reli·ef ARE DENIED.

aurer
rative Law Judge
Distribution:
E. Gay Leonard, Esq. Copeland, Molinary & Bieger, 212 West Valley
Street, Po o. Box 1269, Abingdon, VA 24210 (Certified Mail)
Thomas Ro Scottu Jrou Esqou Street, Street, Street, Scott &
Bowman, 339 West Main Street, Po Oo Box 2100, Grundyp VA 24614
(Certified Mail)
dcp

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266 I FTS 564-5266

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

JUN 3U1992
.

.
.:
..:
..:
.:

v.
MID-CONTINENT RESCXJRCES
INCORPORATED,
Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEST 91-168
A.C. No. 05-00301-03764
Dutch Creek Mine

DECISION APPROVING PARTIAL SETTLEMENT
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., DELANEY & BALCOMB, P.C. Glenwood Springs, Colorado,
for Respondent.

Before:

Judge Morris

This is a civil penalty proceeding initiated ~ Petitioner
against Respondent pursuant to the Federal Mine Safety and Health
Act of 1977 fl 30 U .,S oCo § 80lv et ~ (the 81 Act") o The civil
penalties sought here are for the violation of mandatory regulations promulgated pursuant to the Acto

A hearing in this case and related cases commenced in Glenwood Springsu Colorado on April 15u 19920 '!he parties reached a
partial amicable settlement and subsequently filed a written
Joint Motion t.o Approve Settlemento
Respondent further filed a suggestion of bankruptcy.
The Citations, the original assessments, and the proposed
dispositions are as follows:
Citation/
Order No.

Proposed Penalty

3580363
3580351
3410391
3411019

$1,000.00
$1,100.00
$1,100.00
$1,600.00
TOTAL
1085

Amended
Proposed Penalty

$

600.00
660. 0 0
660.00
960.00

$2,880.00

In support of their motion, the parties sul:mitted information relating to the statutory criteria for assessing civil penalties as contained in 30 u.s.c. § 820Ci).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
Accordingly, I enter the following:
ORDER

1. Citation Nos. 3580363, 3580351, 3410391, and 3411019 and
the amended proposed penalties are AFFIRMED.
2.
Respondent filed a case under Chapter 11 of the Bankruptcy Code and is operating ,its bankruptcy estate as a debtorin-possession. Accordingly, upon approval of the United States
Bamkruptcy Court in Case No. 91-11658 PAC, it is ORDERED that
civil penalties be assessed against the Respondent in the amount
of $2,880.00 and Petitioner is authorized to assert such assessment as a claim in Respondent's Bankruptcy case.

3. The undersigned Judge retains jurisdiction of this case
and related cases not otherwise disposed of by the settlement
herein.
(Order No. 3410800 was the subject matter of contest and
evidentiary hearings conducted April 15 and 16 and June 16 and
l7q 1992)0

rris
rative Law Judge

Distribution~

Margaret Ao Milleru Esq-u Office of the Solicitor, U.S. Department of Laboru 1585 Federal Office Building, 1961 Stout Street,
Denveru CO 80294
(Certified Mail)
Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, Drawer 7 90,
Glenwood Springs, CO 81602 (Certified Mail)
ek

1086

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

4 1992
IN RE:

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

MASTER DOCKET NO. 91-1

ORDER GRANTING IN PART AND DENYING
IN PART MOTION TO COMPEL FURTHER RESPONSES

on April 20, 1992, Contestants represented by the law firm
Jackson & Kelly (Contestants} filed a motion to compel further
responses by the Secretary of I:.iabor (Secretary) to Contestants'
discovery requests. The motion was supported by a memorandum.
At my request, the Secretary filed with me copies of the
Secretary's responses to the first and second sets of discovery.
She requested that she be permitted to file a response to the
Contestants' motion by May 22, 1992. I later orally extended the
time without objection by Contestants to May 29, 1992. However,
the Secretary has not filed a response to the motion.
Contestants' motion is based in part on the fact that on
March 19, 1992, the Department of Labor, Office of Inspector
General (OIG) withdrew the claim of privilege previously asserted
with respect to discovery requests involving dust samples taken
by MSHA inspectors.
In addition, Contestants seek an order
compelling further responses to certain interrogatories as to
which, they assert, the Secretary has made inadequate responses.
INVESTIGATIVE PRIVILEGE-OIG

Interrogatory 12, First Set, asks the Secretary to identify
all inspector dust samples taken from Consolidation Coal Company
(Consol) during the period 1988 to date, including the name of
the inspector who took the sample. The Secretary's objection
that disclosing the identity of the inspectors is protected by
the OIG investigative privilege was sustained in my order issued
December 30, 1991, After the OIG withdrew its claim of
privilege, the Secretary on April 23, 1992, disclosed the
identity of the inspectors submitting samples exhibiting AWC
characteristics during the period in question.
I conclude that
this is an adequate response to the interrogatory. My order of
December 30, 1991, held that the request for information as to
all inspector samples during the period was overly broad.
Interrogatory 13, First Set, also seeks the identity of the
inspectors and other persons having contact with or

1087

responsibil.i ty for samples examined for AWC. My order of
December 30, 1991, upheld the Secretary's objection to
identifying the inspectors and upheld the objection to the
remaining part of the interrogatory as being overly broad and
unduly burdensome since it was not limited in time. On April 23,
1992, the Secretary disclosed the identity of MSHA inspectors and
field offices involved in processing samples found to have AWC.
I conclude that this is an adequate response to the
interrogatory.
Interrogatory 14, First Set, also asks among other things
for the identity of inspectors who took samples from Consol
during the period 1988 to date which were found to have AWC. The
Secretary's amended response discloses the identity of the
inspectors and other information withheld because of OIG
privilege claims.
I conclude that this is an adequate response
to the interrogatory.
Request for Production 3, First Set, asks for all documents
relating to any investigation·from 1988 to date of the subject of
this proceeding. My order of December 30, 1991, upheld the
Secretary's objection that the request was overly broad and
unduly burdensome. Contestants' motion states that it is unclear
whether the Secretary relied on the OIG investigative privilege
in withholding any requested documents.
The Secretary replied
that she did not withhold any document sought in this request for
production in reliance on the OIG privilege.
I conclude that the
Secretary has adequately responded to the request.
Document 445 includes dust data cards concerning samples
taken by MSHA inspectors from August 1989 to June 1991. The
Secretary asserted the OIG investigative privilege. On May 30,
1992 the Secretary sent copies of Document 445 and available
MSHA inspector sample custody sheets to Contestants.
I assume
that this responds to Contestantsu request for production of
Document 445.
INADEQUATE RESPONSE
Interrogatory 3u Second Set, asks the Secretary to describe
all procedures to examine inspector or other MSHA generated
samples for AWC. The Secretary responded by referring to the
protocols in Repository Documents 13 and 177, and the depositions
of Thaxton and Raymond.
Contestants' motion argues that the
Secretary has not identified the procedures used to ensure that
all MSHA samples were, in fact, examined for AWC.
I conclude
that the Secretary's response is adequate.
She was not asked for
information as to procedures to assure that all MSHA inspector
samples were examined, but only for the procedures actually
followed in examining MSHA samples for AWC.
The response referring to the documents describing the protocols - is an
adequate response.

1088

Interrogatory 7, Second Set, asks the Secretary to
distinguish each of Contestants' cited filters from the
experimental filters produced in the West Virginia University
study and the Pittsburgh Health Technology Center study. The
secretary's response is that the cited filters differ from the
experimental filters in that the former show evidence that the
filter media were intentionally altered. This answer is not
responsive. The interrogatory is obviously asking the Secretary
for the physical distinctions, if any, between the two sets of
filters.
I will order her to further respond.
Interrogatory 14, Second Set, asks the Secretary to state
and identify all facts, documents, physical evidence, and
individuals whose testimony will support the Secretary's negative
response to requests for admissions, and to summarize the
expected testimony of prospective witnesses and content of
documents which support the Secretary's responses. The
Secretary's response to the interrogatory states that her denials
are self-explanatory and are sµpported by the deposition
testimony of MSHA officials and employees, the exchange of expert
reports, the deposition of experts, and the Secretary's response
to Interrogatory 6. She also objects to being requested to
identify witnesses at this time.
I conclude that the Secretary
has adequately responded to this extremely broad interrogatory.
ORDER

Accordingly, the motion to compel further responses to
discovery requests is GRANTED with respect to Document 445. The
Secretary is ORDERED to place Document 445 in the Document
Repository. The motion is GRANTED with respect to Interrogatory
7 Second Set; and the Secretary is ORDERED to further respond to
that interrogatory.
The motion to compel further responses is DENIED with
respect to Interrogatories 12, 13, and 14, First Set, Request for
Production 3, First Set, and Interrogatories 3 and 14, Second
Set.

j

.

I

<L'

' -ckx, .e-/_
'/

~" 1 ~
(c,"' _,(__c. ;, , l,ff.,,•·'1~/,>-"},
, t__,,, 1- >
James A. Broderick
Administrative Law Judge
'I'

1089

-

"'

y"•

Distribution:
Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
(Certified Mail)
Laura E. Beverage, Esq., Jackson' and Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)
All others Regular Mail
/fas

1090

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266 I FTS 564-5266

June 5, 1992

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
DONALD L. GIACOMO, employed
by WYOMING FUEL COMPANY,
Respondent

.
.
..
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-100
A.C. No. 05-02820-03605 A
Golden Eagle Mine

:

ORDER GRANTING· MOTION TO COMPEL
Pending herein is Respondent's motion to compel Petitioner
to disclose the names of witnesses who will testify in the pending case. Petitioner, relying on Commission Rule 59, 29 C.R.F.
§ 2700.59 1, declines to produce the requested information.
At the Judge's direction, Petitioner produced for an In
Camera inspection the portion of her file she desires to protect
with the informant privilege. The material submitted may contain
the names of informant witnesses and their testimony.

l

The cited Commission Rule reads as follows~
§

2700.59

Name of miner witnesses and informants.

A Judge shall not, until 2 days before a hearing, disclose or order a person to disclose to
an operator or his agent the name of a miner who
is expected by the Judge to testify or whom a
party expects to summon or call as a witness. A
Judge shall not, except in extraordinary circumstances, disclose or order a person to disclose
to an operator or his agent the name of an informant who is a miner.

1091

DISCUSSION
The controlling case law is the Commission decision in
Secretary of Labor v. ex rel. George Roy Logan v. Bright Coal
Co., Inc., and Jack Collins, 6 FMSHRC 2520 (1984).
In Logan the Commission stated it was appropriate for the
Judge to conduct a balancing test to determine whether the Respondent's need for the information is greater than the Secretary's need to maintain the privilege to protect the public
interest. Logan, 6 FMSHRC at 2526.
Findings of Fact
1. This case is a civil penalty proceeding brought by the
Secretary of Labor against Donald L. Giacomo ("Giacomo") under
Section llOCc) of the Mine Act.

2.

Citation 3240616 charges Giacomo violated 30 C.F.R.

§ 75.1725A. 2

""

ct.

§

15 .. 1725 Machinery and eq:uipment; operation
and maintenance ..

{a) Mobile and stationary machinery and
equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe
condition shall be removed from service immediately.

1092

3. Citation 3240616 3 alleges Giacomo violated Section
102Cd)(l) of paragraph 5 of the Act.
4. Petitioner, in her original petition for assessment of a
civil penalty, alleged in part as follows:
5. Evidence developed during MSHA's investigation of the circumstances surrounding the issuance of the Section 104(d)(l) Order indicates
that Respondent kept the machine in production
by placing a miner in the operator's compartment of the continuous-mining machine.
5. On June 1, 1992, Petitioner amended paragraph 5 of the
original petition to read as follows:

3

Citation No. 3240616 reads as follows:
Persons were req:uired by management to operate
eq:uipment that was not maintained in safe operating condition 9 in that 9 based on statements
received from both labor and managementu the
Joy Continuous Miner in MMU 010-0 headgate was
being operated on the 5-11-90 a.mo shift by the
following methods:
'!he remote control would not function to raise
the miner head while mining coalo A man was
placed in the cab to operate this function while
the miner was being operated by remote control.
This practice was dangerous due to two persons
subject to being on opposite sides of the operating machine and accidental error. Also dangerous due to the fact that neither person had complete control at all times. Both the shift foreman and safety manager were present and had instructed the crew to proceed by this method.
This is unwarrantable action CMSHA Citation No.
32406160, at Section 1(8) "Condition or Practice").

1093

5. Evidence developed during MSHA's investigation of the circumstances surrounding the issuance of Order No. 3240616 on May 14, 1990, indicates that Respondent knew the continuous mining machine was being operated manually by a miner
from within the cab and by a miner operating the
remote controls, and knowingly allowed or condoned hazardous operation of the machine in this
manner.
6.
The assertion of informant's privilege has been formally
raised by the Secretary of. Labor.
7.
The In Camera inspection reveals statements were made
concerning the-operation of the continuous miner. Accordingly,
the statements are relevant in these proceedings.
8.
The informants may not assist Respondent's defense but
the applicability of the informant's privilege does not raise or
fall upon the substance of a person's communication with the government officials concerning a violation of law.
(Logan, 6
FMSHRC at 2 525).

9. In discovery in this case, Petitioner asked Respondent
the following question and Respondent replied under oath as
noted:
2. State the name, job title, current business
address, employer, and current telephone numbers for each person you believe to have knowledge of the facts concerning the violation alleged in Order Noo 32406160
ANSWER~

I do not know what violation is alleged
in Citation Order No. 3240616. I was not allowed to attend hearings regarding Citation Order Noo 3240616 9 and my attorney was forcibly
removed from a hearing in which said Citation
was presumably litigated and evidence regarding
the Citation was to be heard. When I attended
a Safety and Health Conference during which evidence of the alleged violation was supposed to
have been presented, I advised that a decision
has already been made that a violation had occurred and I would only be allowed to present
a statement in mitigation. The Secretary of
Labor has refused to provide me with the names

1094

of witnesses who could explain what I am accused of doing.
Therefore, all I can do is read
the Citation and try to guess how a violation is
supposed to have occurred and what unnamed witnesses might speculate about what I did or did
not do, thus resulting in the knowing authorization, ordering or carrying out of a violation
of mandatory safety standards.
The Citation alleges that the violation occurred on May 11,
1990, when I was working as a foreman helping
to remove the Longwall from the southwest Longwall section two of Wyoming Fuel Company's
Golden Eagle Mine.
Persons whom I believe to
have been working on that date are: Bob Mattis,
David Fagneta, Dan Renner, Keith Mantelli,
Jack Feltzger, Jr., David Wakefield, Ed Shannon,
John A. Garcia, James Sterns, Felix Martinez,
Jim Paravecchio, w:tyne Schoupe, Bob Vigil, and
Sam Henry.
I do not·know the current job titles,
current business addresses, employers, or current
telephone numbers for the above-listed individuals. we are not currently employed by the same
employer and do not work in the same mine.
In answering Petitioner's Interrogatories, Giacomo stated
under oath that he does not work for Wyoming Fuel Company nor
does he presume to speak for Wyoming Fuel Company.
11.
The information sought here is not available from other
sources since only Petitioner knows the names of the witnesses
she intends to callo As a resultv Respondent has no other
avenues available to discover such witnesseso
120 Disclosure is essential to a fair determination of the
issues since Giacomo will have an opportunity to depose Petitionergs witnesses and prepare his defense.
Further Findings and Discussion
Petitioner admits Giacomo is not an anployer or a coal mine
operatore Further, it is admitted he does not work at the same
mine with any individuals who might be called ~ the Petitioner
as witnesses.
(Petitioner's response, page 3; filed May 4, 1992).
Nevertheless, Petitioner claims Giacomo is an "agent" within
Commission Rule 59.

1095

It is true that Petitioner must prove Giacomo was an agent
of the mine operator to establish a violation of Section llO(c).
However, the foregoing admitted facts establish that Giacomo is
not an agent of an operator within the meaning of Rule 59.
Petitioner further asserts a possibility of retaliation
exists against miners who might testify.
I disagree. Giacomo is not a mine operator and does not
work at the same mine as any individuals who might be called as
witnesses. (Petitioner's Response, page 2, filed May 4, 1992).
Merely working in the same geographic area as the Golden Eagle
Mine is insufficient to establish the possibility of retaliation.
Petitioner further states Respondent knows the "universe of
all persons who may have information regarding this case" and the
requested information is "available from sources other than the
government."
Contrary to Petitioner's position, a review of the In
Camera material reveals two potential witness informants"""Who are
not listed by Giacomo as persons having knowledge of the facts
concerning the violation alleged. (See para. 9, supra, where
Giacomo lists persons having knowledge of the facts).
In sum, it is the Judge's view that the factual situation
presented here involved "extraordinary circumstances" within the
meaning of Commission Rule 59. Further, Respondent's need for
the information is greater than the Secretary's need to maintain
the privilege in order to protect the public interest.
Accordinglyv I enter the followingg
ORDER
Respondentus motion to compel is GRANTEDo
2o Within 15 days~ Petitioner is ORDERED to disclose
the names of the individuals she intends to call as witnesses in
this caseo

The material submitted to the Judge for an In camera inspection is hereby SEALED. The following notation shall
appear on the. sealed envelope:
3o

1096

DOCUMENTS HEREIN WERE SEALED ON JUNE 4, 1992,
BY ORDER OF mE PRESIDING JUDGE.

A COPY OF

THIS ORDER WAS AT'mCHED TO THE ENVELOPE SEALING
SAID DOCUMENTS.
4. The Judge has also signed the sealed envelope beneath
the foregoing notation.

Judge

Distributiong

Tana Mo Adde, Esq.u Office of the Solicitor, U.S. Department of
Laboru 4015 Wilson Boulevard 8 Arlington, VA 22203
William C. Erwin, Esq., ERWIN & DAVIDSON, P.C., 243 Cook Avenue,
P.O. Drawer B, R3.ton, NM 87740
ek

1097

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 12 1992
IN RE:

CONTESTS OF RESPIRABLE·
DUST SAMPLE ALTERATION
CITATIONS

UTAH POWER & LIGHT COMPANY,
MINING DIVISION,
Contestant

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent

)
)
)

MASTER DOCKET NO. 91-1

)
)
)
)
)
)
)
)
)
)
)
)

CONTEST PROCEEDINGS
Docket Nos. WEST 91-357-R
through WEST 91-361-R
Citation Nos. 9860864
through 9860868
Cottonwood Mine
Docket Nos. WEST 91-362-R
through WEST 91-364-R

)
)
)

}
}
)
)
)
)

Citation Nos. 9860819
through 9860821
Docket Nos. WEST 91-467-R
through WEST 91-468-R
Citation Nos. 9862937
through 9862938

)

)
)
)
)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.
ENERGY WEST MINING COMPANY,
Respondent

Docket No. WEST 92-31-R
Citation No. 9862981

)

Deer Creek Mine

)
)

CIVIL PENALTY PROCEEDINGS

)
)
)
)
)
)
)
)

Docket No. WEST 91-482
A.C. No. 42-00121-037440
Docket No. WEST 92-116
A.C. No. 42-00121-037540
Deer Creek Mine

)

)
)
)
)

1098

Docket No. WEST 91-483
A.C. No. 42-0l944-03590D
Cottonwood Mine

BENTLEY COAL COMPANY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
BENTLEY COAL COMPANY,
Respondent
KENTUCKY PRINCE COAL COMPANY,
Contestant ·-·
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

)
)
)
)
)
}
)
)
)
)
)
)
)
)
)
)
)
)
)
)

t

)
)

CONTEST PROCEEDINGS
Docket No. WEVA 91-783-R
Citation No. 9862628
Long Run Deep Mine No. 1

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-316
A.C. No. 46-07609-035180
Long Run Deep Mine No. 1

CONTEST PROCEEDINGS
Docket Nos. KENT 91-309-R
through KENT 91-310-R

)
)
)

Citation Nos. 9858895
through 9858896

)
)
)

Kentucky Prince Unit
Train Loadout

)
)
)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.
KENTUCKY PRINCE COAL COMPANY,
Respondent

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Docket No. KENT 91-311-R
Citation No. 9858714
Jeff Tipple Mine
Docket No. KENT 91-312-R
citation No. 9859438
Grae No. 2 Mine
CIVIL PENALTY PROCEEDINGS
Docket No. KENT 91-1166
A.C. No. 15-05151-035130
Jeff Tipple Mine
Docket No. KENT 91-1167
A.C. No. 15-11719-035180
Kentucky Prince Unit
Train Loadout

1099

)

)
)

Docket No. KENT 91-1168
A.C. No. 15-16349-03526D

)

)

Grae No. 2 Mine

ORDER DENYING MOTIONS TO VACATE CITATIONS
On May 4, 1992, Contestant Utah Power & Light, Mining
Division (now known as Energy West Mining Company) 1 ; (Energy
West) filed a motion for an order vacating the 11 citations
issued by the Secretary of Labor (Secretary) to Contestant on
April 4, 1991, June 7, 1991, and September 11, 1991. Each
citation alleged a violation of 30 C.F.R. § 70.209(b) because the
respirable dust sample submitted by Contestant had been altered
by removing a portion of the dust from the sample. As grounds
for the motion Contestant states that the Secretary failed to
issue the citations with the "reasonable promptness" required by
section 104(a) of the Mine Act. The motion was accompanied by a
memorandum in support of the motion and an appendix including
affidavits, MSHA documents, copies of correspondence 1 and
excerpts of deposition testimony. on May 19, 1992, the Secretary
filed a statement in opposition to the motion with an appendix
including affidavits and excerpts of deposition testimony.
on May 22, 1992, Contestants Bentley Coal Company (Bentley)
and Kentucky Prince Coal Company (Kentucky Prince) filed a motion
for an order vacating the five citations issued to Bentley and
Kentucky Prince on April 4, 1991, alleging violations of
30 C.F.R. §§ 70.209(b) or 71.209(b). The motion was accompanied
by a memorandum and an appendix including an affidavit, MSHA
documents 1 and discovery responses. On June 8, 1992, the
Secretary filed a response to the motion.
Docket No" WEST 92-31-R, Citation Noo 9862981
Citation No. 9862981 was issued September 11, 1991. The
Notice of Contest was filed by Utah Power & Light Company, Mining
Division on October 9, 1991. The Secretary filed her answer on
October 18r 19910 On November 4, 1991, Chief Judge Paul Merlin
issued an order staying proceedings in this docket until the
first decision is rendered in Master Docket No. 91-1.
Docket No. WEST 92-31-R is not part of the Master Docket and
has not been assigned to meo
For these reasons, this order will

1;
The contested citations were issued to Utah Power &
Light Company, Mining Division. The related civil penalty
petitions were issued under Contestant's current name, Energy
West Mining company.

1100

not consider the motion to vacate insofar as it relates to Docket
No. WEST 92-31-R and Citation No. 9862981.
Motion for Summary Decision
The facts and legal principles applicable to these motions
are similar to those involved in the motion to vacate citations
filed by Southern Ohio Coal Company (SOCCO) and Windsor Coal
Company (Windsor). On May 22, 1992, I issued an order denying
the motions to vacate filed in those proceedings. As in the
SOCCO and Windsor order, the motions to vacate citations here are
treated as motions for summary decision under Commission Rule
64(b).
Resolving ambiguities in the Secretary's favor, the
motions may be granted only if the entire record shows that there
is no genuine issue as to any material fact, and movants are
entitled to summary decision as a matter of law.
Facts
The samples which resulted in the citations contested by
Energy West were taken between September 14, 1989, and March 26,
1991. All but two of the citations were issued April 4, 1991.
For the two samples taken March 25 and 26, 1991, the citations
were issued June 7, 1991. Robert Thaxton, MSHA's Supervisory
Industrial Hygienist and an authorized representative of the
Secretary made the determination in the case of each sample that
it showed an abnormal white center which established tampering.
Thaxton received the first eight cited samples involved in these
proceedings between September 27, 1989, and June 25, 1990. The
samples taken March 25 and 26, 1991, were received by Thaxton on
April 17, 1991.
The samples which resulted in the citations contested by
Bentley and Kentucky Prince were taken between August 24, 1989,
and July 26 1 19900 The citations were all issued April 4, 1991.
The samples were received by Thaxton between September 14, 1989,
and August 20, 1990.
With respect to the samples taken before November 1990, I
found in the SOCCO/Windsor order that the Secretary's belief that
the samples showed violations did not come about before November
19900 The same findings apply here. Thus, for the purpose of
ruling on the motions, the delay between the time the Secretary
believed that violations occurred and the issuance of the
citations was approximately 4 months. With respect to the
samples from Energy West taken in March 1991, the delay was
approximately 2 months (April 17 to June 7, 1991).
I find that
there is no genuine issue as to these material facts.

1101

Reasonable Promptness
In my SOCCO/Windsor order, I concluded that the Secretary
established adequate justification for her 4-month delay in
issuing the contested citations, namely her wish to avoid
premature disclosure of a pending criminal investigation. The
same consideration applies to the motions filed by Energy West,
Bentley, and Kentucky Prince with respect to the citations issued
on April 4, 1991. For those citations, I conclude that the
Secretary has established adequate justification for the delay in
their issuance, namely the government's interest in avoiding
disclosure of a pending criminal investigation.
No such interest existed with regard to the two citations
issued June 7, 1991. The only reason the Secretary has advanced
for the delay in issuing them is her decision to issue citations
in groups after sufficient numbers of violative samples were
collected, which occurred every 2 to 3 months.
I am not
persuaded that the secretary needed 2 to 3 months after she
determined that a violation occurred to administratively
accomplish the issuance of a citation. Therefore, I conclude
that the Secretary has failed to establish an adequate
justification for her 2-month delay in issuing these contested
citations.
For all of the citations, I must determine whether the delay
was prejudicial to the Contestants. See Old Dominion Power Co.,
6 FMSHRC 1886 at 1894 (1984), rev'd on other grounds sub nom.,
Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985);
Emery Mining Corp. v. Secretary, 10 FMSHRC 1337 at 1354 (ALJ)
(1988).
Energy West has not asserted that the 2-month delay in
issuing the citations on June 7, 1991, prejudiced its ability to
defend itself
With respect to all the citations issued to
Energy West, it advanced the same arguments advanced by socco and
Windsor. As in the SOCCO/Windsor order, I conclude that
prejudice has not been established.
o

Contestants Bentley and Kentucky Prince state that mining
operations in the subject mines have ceased ''and many--if not
all--of the witnesses on whom Contestants would have relied are
no longer available.ni The Bentley employees were terminated or
transferred "in 1991 11 and the mine has been closed and reclaimed.
The Secretary's response includes an affidavit that the mine was
not abandoned until August, 1991. It further points out that the
cited samples were taken by an independent contractor, and not by
Bentley employees. Contestants state that operations ended at
two of the Kentucky Prince mines in 1991 and most of the
employees were terminated or transferred.
In April 1992,
Kentucky Prince was sold to a third party, and most of the
employees involved in the dust sampling no longer work for
Kentucky Prince.

1102

Contestants' affidavit does not specify the dates when
mining operations at Bentley and Kentucky Prince ceased, only
that it occurred in 1991. Because it is not clear whether it
occurred during the period from November 1990 to April 1991, the
ambiguity must be resolved in the Secretary's favor, i.e., that
it occurred after April 4, 1991. Hence, prejudice has not been
shown. The facts that coal extraction ceased at Kentucky Prince
in January 1992, and that the mines were sold to a third party in
April 1992 are not relevant to the question of prejudice since
these events occurred after the citations were issued and,
therefore, after the delay complained of.
Based on the above considerations and the considerations in
the SOCCO/Windsor order, I conclude that Contestants have not
shown that the delays in issuing the contested citations were
prejudicial to their ability to defend themselves in these
proceedings, and consequently, they are not entitled to summary
decision as a matter of law.
ORDER
Accordingly, the motions to vacate citations filed on behalf
of Utah Power & Light/Energy West, Bentley, and Kentucky Prince
are DENIED.
,.

.,

,·

,l

tfdtJ?.t: 5 A-l-~1;_,z:; r,&,z,,,_ e,,f_

;;J James A. Broderick

'

Administrative Law Judge

Distribution~

Douglas N. White Esq. 1 Jerald S. Feingold, Esq., Mark R.
Malecki 1 Esq., Office of the Solicitorv U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Timothy M. Biddle, Esq., Thomas C. Means, Esq., J. Michael Klise,
Esq., Crowell & Moring, 1001 Pennsylvania Avenue, N.W.,
Washington, DC 20004 (Certified Mail)
All others regular mail

/fb

1103

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 18 1992
IN RE:

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

)
)
)

Master Docket No. 91-1

)

METTIKI COAL CORP.,
Contestant

v.

)
)

CONTEST PROCEEDINGS

)

Docket Nos. YORK 91-28-R
through YORK 91-29-R

)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
PERMAC, INC.,
Contestant

v.

)
)
)
)

Citation Nos. 9859677
through 9859678

)
)

Mettiki Mine

)
)

Docket No. VA 91-288-R

)

Citation No. 9860990

)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

)
)
)
)

Prep Plant No. 1

)

RACE FORK COAL CORP.,
Contestant

v.

)
)

)
)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket .Nos. VA 91-239-R
through VA 91-240-R

)
)
)
)

Citation Nos. 9860988
through 9860989
Woodman Luke Prep Plant

)

PONTIKI COAL CORP.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent

)
)
)

Docket Nos. KENT 91-440-R
through KENT 91-441-R

)

Citation Nos. 9858800
through 9858801

)
)
)
)

Pontiki No. 1 Mine

)

1104

WEBSTER COUNTY COAL CORP.,
Contestant

v.

)
)

Docket Nos. KENT 91-364-R
through KENT 91-378-R

)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

)
)

Citation Nos. 9858517
through 9858531

)

)

Retiki Mine

)

)
)

Docket Nos. KENT 91-379-R
through KENT 91-439 R

)

)
)

Citation Nos. 9858575
through 9858635

)

)

Dotiki Mine

)

WHITE COUNTY COAL CORP.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

)
)
)

)
)

)
)
)
)

Docket No. YORK 91-44
A.C. No- 18-00621-037530

)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

)
)

v.

CIVIL PENALTY PROCEEDINGS

)

)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Pattiki Mine

)
)

)
)
)

Respondent

Citation Nos. 9858487
through 9858490

)

METTIKI COAL CORP.,
Respondent

PERMAC, INC. ,

Docket Nos. LAKE 91-435-R
through LAKE 91-438 R

Mettiki Mine

Docket No. VA 91-558
A.C. No. 44-03236-035140

)

)

Prep Plant No. 1

)
)
)
)
)

)
)

Docket No. VA 91-559
A.C. No. 44-03010-03528D

)

)

Woodman Luke Prep Plant

)
)

1105

RACE FORK COAL CORPORATION,
Respondent

)
)
)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

)
)

PONTIKI COAL CORP.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
WEBSTER COUNTY COAL CORP.,
Respondent

Docket No. KENT 91-1056
k.C. No. 15-08413-036140

)

)

Pontiki No. 1 Mine

)
)
)
)
)

)
)

Docket No. KENT 92-102
A.C. No. 15-00672-036250

)

)

Retiki Mine

)

)
)

Docket Nos. KENT 91-1039
through KENT 91-1042

)

)
)

A.C. No. 15-02132-036410
through 15-02132-036440

)

)

Dotiki Mine

)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
WHITE COUNTY COAL CORP.
Respondent

)
)

Docket No. LAKE 91-713
A.C. No. 11-02662-036130

)

)

Pattiki Mine

)
)
)
)

ORDER DENYING MOTION
TO VACATE CITATIONS
On May 26, 1992, the above named Contestants
led a motion to
vacate the 87 citations issued to them by the Secretary of Labor on
April 4, 1991.
The citations alleged a violation of 30 c. F. R.
§ 70.209(b)
or § 71.209(b) because the respirable dust samples
submitted by Contestants had been altered by removing a portion of
dust from the sample. As grounds for the motion Contestants state
that the Secretary failed to issue the citations with the
"reasonable promptness" required by section 104 (a) of the Mine Act.
The motion was accompanied by a memorandum in its support and a
57 page appendix which included affidavits, MSHA documents, and the

1106

Secretary's response to discovery requests.
response to the motion on June 8, 1992.

The Secretary filed a

Motion _for Summary Decision
The facts and legal principles applicable to this motion are
similar to those involved in the motion to vacate citations filed
by Southern Ohio Coal Company (SOCCO) and Windsor Coal Company
(Windsor) which was denied by an order issued May 22, 1992. As in
the SOCCO/Windsar order, the m0tion ta vacate citations here is
treated as a motion far summary decision under Commission Rule
64(b).
It may be granted only if the entire record shows that
there is no genuine issue as to any material fact and movants are
entitled to summary decision as a matter of law.
Facts
The respirable dust samples which resulted in the 8 7 contested
citations were taken between August 15, 1989, and February 25,
1991.
Robert Thaxton made the determination in the case of each
sample that it showed an abnormal white center which established
tampering. Thaxton received the samples between August 31, 1989,
and March 11, 1991.
In November 1989, Howard Stone, Webster county Coal Safety
Director, mailed the dust samples for the Dotiki Mine to MSHA.
MSHA notified him of the results for all but one unit.
When he
asked MSHA about the omission, he was told that he had not
submitted the correct number of samples. He therefore submitted a
replacement sample.
However, when the citations were issued on
April 4, 1991, he noted that the sample for the allegedly missing
unit was cited as exhibiting an abnormal white center.
In early 1991, Alan Smith, Safety Director at Mettiki Coal
Corporation, asked MSHA whether Mettiki had submitted any samples
containing AWCs and he received a negative reply. However, Mettiki
was issued two citations on April 4, 1991, for samples taken in
February 1990 which had been reviewed by Thaxton in March 1990.
Two potential witnesses for Contestants have died: the sole
employee in the Safety Departments of Permac and Race Fork, who
died in September 1991, and an employee of Webster County who was
sampled in a designated occupation and who died in March 1991.
Another potential witness of Webster County retired in December
1991. I find that there
no genuine issue as to these material
facts.

1107

Reasonable Promptness
In my SOCCO/Windsor order, I concluded that the Secretary
established adequate justification for her 4-month delay in issuing
the citations, namely, her·wish to avoid premature disclosure of a
pending criminal investigation. The same consideration applies to
the motions before me now.
I conclude that the Secretary has
established adequate justification for the delay in their issuance:
the government's interest in avoiding disclosure of a pending
criminal
investigation.
The same
interest justifies the
Secretary's concealment and disclaimer regarding the existence of
AWCs in response to Contestants' inquiries.
Contestants have advanced the same arguments concerning
prejudice as were advanced by SOCCO and Windsor, with the
additional argument that two potential witnesses (one for Permac
and Race Fork, and one for Webster County) have died and clearly
are not availaf>le to testify. -Although Elbert Asbury of Permac and
Race Fork died almost 6 months after the citations were issued,
during which time his testimony could have been preserved, and the
testimony of Marvin Forbes (who died prior to the issuance of the
citations) would be of dubious relevance (Forbes apparently was a
sampled miner), it is hard to argue that their unavailability has
not limited Contestants' capacity to defend themselves in these
proceedings.
The question is whether the limitation is so
prejudicial that fairness requires that the citations be vacated.
As I previously noted, since Asbury's death occurred after the
citations were issued, his testimony could have been preserved.
With respect to Forbes' death, Contestants' have not shown what
Forbes' potential testimony might have been, or that he was indeed
the subject of a cited sample.
Therefore, I conclude that the
Secretaryus delay
not result in prejudice to Contestants, and
that the proceedings can be fairly determined on their merits.
Based on the above considerations and the considerations in
the SOCCO/Windsor order, I conclude that Contestants have not shown
that the delay in issuing the contested citations was
udicial
to their ab ity to defend themselves in these proceedings, and
consequently, they are not entitled to summary decision as a matter
of law.
ORDER

Accordingly, the motion to vacate citations filed on behalf of
Contestants Mettiki, Permac, Race Fork, Pontiki, Webster County,
and Wh
County are DENIED.
' f .·

I

.j

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James A. Broderick
Administrative Law Judge

1108

Distribution:
Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the
solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)'
Timothy M. Biddle, Esq., Thomas c. Means, Esq., J. Michael Klise,
Esq., Crowell & Moring, 1001 Pennsylvania Avenue, N. W., Washington,
D.C. 20004 (Certified Mail)
Susan E. Chetlin, Esq., MAPCO Coal, Inc., 2525 Harrodsburg Road,
Suite 300, Lexington, KY 40504-3359 (Certified Mail)
All others Regular Mail
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1109

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 24 1992
IN RE:

CONTESTS OF RESPIRABLE DUST
SAMPLE ALTERATION CITATIONS

Master Docket No. 91-1

ORDER GRANTING MOTION TO CONDUCT DEPOSITIONS
.OF NON-EXPERT WITNESSES OUT OF TIME
on June 3, 1992, Contestants represented by Jackson & Kelly
and included in Docket No. KENT 91-265-R et al.
(Contestants)
filed a motion for an order allowing them to conduct joint
depositions of non-expert witnesses L A. Bassett, Jr., and
Raymond J. Carroll out of time. On June 10, 1992, Contestants
filed an amended motion seeking an order allowing them to conduct
joint depositions of non-expert witnesses Carter Elliott,
I. A. Bassett, Jr., and Raymond Carroll. The amended motion was
served by mail on counsel for the Inspector General, U.S.
Department of Labor (OIG) on June 8, 1992. Contestants also seek
a subpoena duces tecum compelling Inspector General
Julian W. De La Rosa to produce all documents in his possession
concerning MSHA Internal Investigation No. 890014, OIG Case No.
30-0801-0036 relating to the investigation of alleged tampering
with coal dust cassette samples.
The three named proposed witnesses are stated to be in the
OIG and to have been involved in the investigation of alleged
tampering of coal dust samples taken by MSHA inspectors.
On October 29, 1991, I issued an order granting the OIG
leave to enter a special appearance to oppose the motions of
certain Contestants to compel testimony of Robert Thaxton.
On
March 16, 1992, the OIG withdrew its opposition to Contestantsu
motion to compel testimony of Thaxton. Action on the motion to
compel was stayed by order issued November 20, 1991. The OIG
withdrew its opposition because its investigation was closed on
or before February 27, 1992, after it found no evidence of
criminal wrongdoing or official misconduct on the part of MSHA
inspectors who submitted coal dust samples displaying abnormal
white centers.
The instant motion states that on March 13, 1992, counsel
for the Secretary informed the court and contestants' counsel
that the OIG completed its investigation and also informed the
court and counsel that the Secretary is no longer asserting
investigative privilege with respect to the OIG investigation.
This was subsequent to January 31, 1992, the deadline for joint
non-expert witness depositions in the Discovery Plan. The

1110

Secretary has not responded to the motion.
I conclude that Contestants have shown good cause for
conducting the depositions out of time. Therefore the motion is
GRANTED, and subpoenas are issued herewith in accordance with
contestants amended request for subpoenas.
This order gives Contestants the right to conduct
depositions of the three named OIG employees, and to require the
Inspector General to respond to the subpoena duces tecum.
It
does not, of course, preclude the Secretary from asserting any
applicable claim of privilege with respect to any question asked
at the depositions or any documents sought to be examined and
produced.

J:

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Lviu?.-S.' _A/8,-z;rdi,;'1
James A. Broderick
Administrative Law Judge

Distribution:
Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Laura E. Beverage, Esq., David J. Hardy, Esq., Jackson & Kelly,
P. Oo Box 553; Charleston, WV 25322 (Certified Mail}
Sylvia Horowitz, Esqo, UoSo Department of Laboru 200 Constitution
Avenue, NW, Room S-1305, Washington, D.C. 20210 (Certified Mail)
All others Regular Mail

/fas

1111

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

dUN 301992
IN RE:

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

)
)
)

Master Docket No. 91-1

ORDER
The commission remanded this matter to me by its decision
issued June 29, 1992, for a ruling on the Secretary's claim of
attorney work product privilege to support her refusal to
disclose documents 3, 365, 366 1 367, 401 and 424. The Commission
also directed me to rule on whether Rule 6(e) of the Federal
Rules of Criminal Procedure bars disclosure of folders 11 and 12
of document 406. 14 FMSHRC
(1992).
To assist me in carrying out the terms of the remand, I
direct the Secretary to resubmit documents 3, 365, 366, 367, 401
and 424 to me on or before July 10, 1992, for inspection
in camera. Contestants may on or before the same date file a
motion for in camera inspection of any other document concerning
which the Secretary's claim of privilege was upheld. I also
direct the Secretary to respond to my letter of June 18, 1992,
concerning the present status of any grand jury investigation.
Finally, I direct that the parties file on or before
July 15, 1992 memoranda in support of their respective positions
on the Secretary's work produ~t privilege claim, and on the
applicability of Rule 6{e) of the Federal Rules of Criminal
Procedure.

j d1/".u..:s A-fj~-cck1/l~:/Z_James A. Broderick
Administrative Law Judge

1112