APRIL 1996

CQMMISSION DECISIQNS AND ORPERS
04-02-96
04-17-96
04-17-96
04-19-96
04-19-96
04-22-96
04-22-96
04-24-96
04-24-96
04-24-96
04 - 24-96
04 -24-96

Wallace Brothers, Inc.
Sec. Labor on behalf of Lonnie Bowling
et al. v. Mountain Top Trucking, etc.
De Atley Company, Inc.
Peabody Coal Company
Jim Walter Resources, Inc.
L & J Energy Company, Inc.
RNS Services, Inc.
Morton International, Inc.
Glenn's Trucking Company, Inc.
Sec. Labor on behalf of Carroll Johnson
& UMWA v. Jim Walter Resources, Inc.
Energy West Mining Company
Thunder Basin Coal Company

WEST 94-710-M

Pg. 481

KENT 95-604-D
WEST 95-512-M
KENT 93-318-R
SE
94-244-R
PENN 93-15
PENN 95-382 - R
CENT 93-237-RM
KENT 95-781

Pg.
Pg.
Pg.
Pg.
Pg.
Pg .
Pg.
Pg.

SE
93-182-D
WEST 93-169
WEST 94-148-R

Pg. 552
Pg. 565
Pg. 582

WEVA 95-262-C
WEVA 93-129
WEST 95-228-DM
WEST 94-710-M
WEVA 95-112
WEST 95-248-M
CENT 94-126-M
CENT 95-150-DM
WEST 96-64-DM

Pg .
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

KENT 96 - 53-D
WEVA 94-381

Pg. 648
Pg. 651

KENT 95-604-D
WEST 95-170-M

Pg. 663
Pg. 668

KENT 96-53-D

Pg. 677

487
491
494
508
521
523
533
549

APMINISTBATIVE LAW JUPGE DECISIONS
04-03-96
04-05-96
04-11-96
04-12 - 96
04-12-96
04-15-96
04-18-96
04-25-96
04-26-96
04 - 26-96
04-29-96

UMWA, Local 1058 v. Consolidation Coal Co.
Doss Fork coal Company, Inc.
Lance A. Paul v. Newmont Gold Co.
Wallace Brothers, Inc.
Nelson Brothers, Inc.
DCL Construction, Inc .
Walker Stone Company, Inc.
Thomas L. Crowder v . Wharf Resources
Clyde Perry v. Phelps Dodge Morenci
Sec. Labor on behalf of Frank Scott
v. Leeco, Incorporated
Cannelton Industries, Inc.

595
602
608
611

618
626
627
638
643

ADMINISTRATIVE LAW JUPGE ORDERS
04-08-96
04 -11-96
04-12-96

Sec. Labor on behalf of Lonnie Bowling
v. Mountain Top Trucking
Newmont Gold Company
Sec. Labor on behalf of Frank Scott
v. Leeco, Incorporated

i

APRIL

1996

Review was granted in the following case dµrinsr the month of April;
Berwind Natural Resources, Kyber Coal Company, et al. v. Secretary of Labor,
Docket Nos. KENT 94-574-R, etc.
(Judge Barbour, February 28, 1996).
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. WEVA 93 - 146A, etc .
(Judge Melick, March 7, 1996)
Secretary of Labor v. DeAtley Company, Inc., Docket No. WEST 95-512-M .
(Unpublished Defaul t issued February 7, 1996, Chief Judge Merlin).
Secretary of Labor on behalf of Lonnie Bowling et al . v. Mountain Top Tr ucking,
etc., Docket Nos. KENT 95-604-D, etc.
(Interlocutory Review of Judge Feldman's
April 8, 1996 Order - published in this issue).
Secretary of Labor, MSHA v. Glenn's Trucking Company, Docket No. KENT 95-781 .
(Unpublished Default issued March 18, 1996, Chief Judge Merlin).

No cases were filed in which review was denied.

ii

COMMISSION DECISIONS AND ORDERS

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

April 2, 1996

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

v.

Docket No. WEST 94-710-M

WALLACE BROTHERS, INC.

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involves the penalties proposed by
the Secretary of Labor for two violations of 30 C.F.R. § 56.14107(a) 1 by Wallace Brothers, Inc.
("Wallace"). Wallace conceded the violations but contended that the proposed civil penalties
were too high. After an evidentiary hearing, Administrative Law Judge Arthur J. Arnchan
assessed a $1,300 penalty for each citation. Wallace Brothers, Inc., 17 FMSHRC 1380, 1384
(August 1995) (ALJ). Wallace filed a petition for discretionary review challenging the judge's
penalty assessments. For the reasons set forth below, we vacate and remand.

1

30 C.F.R. § 56.14107(a) provides:
Moving machine parts shall be guarded to protect persons from
contacting gears, sprockets, chains, drive, head, tail, and takeup
pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.

481

I.
Procedural and Factual Back~round
On May 11, 1994, inspector Rodney Ingram of the Mine Safety and Health
Administration ("MSHA") issued two citations to Wallace, alleging separate violations of 30
C.F.R. § 56.14197(a). Citation No. 4129345 alleged that the standard was violated because a 5
inch by 8 inch gap existed in the guard of a self-cleaning tail pully on a portable crusher. Tr. 1520. Citation No. 4129346 alleged that the back side of av-belt drive was unguarded. Tr. 22-28.
The inspector gave Wallace two days to abate the conditions. On June 8, the inspector returned
and, upon discovering that the cited conditions had not been abated, issued two withdrawal
orders pursuant to section 104(b) of the Mine Act, 30 U.S.C. § 814(b). On June 9, the violations
were abated.
Fallowing an evidentiary hearing, the judge assessed a $1,300 penalty for each citation.
17 FMSHRC at 1384. The judge reached the $1,300 figure by multiplying the most likely
penalty ($50) times the number of days (26) the conditions went unabated. Id. at 13 83. The
judge noted that the Secretary had proposed a penalty of $1,500 for each citation and Wallace
contended that the penalties should be $210 and $159. Id. at 1381-82. The judge rejected
Wallace's alternative penalties as too low, stating that such low penalties would "invite dilatory
conduct[.]" Id. at 1383. He noted that "[a]lthough the proposed penalty assessment lists only the
numbers of the section 104(a) citations, the document and attached narrative clearly indicate that
the penalties are for the section I 04(b) orders as well." Id. 13 81 n. l.
II.
Disposition
On review, Wallace challenges the judge's decision on two grounds. 2 Wallace contends
that the judge failed to address all six statutory criteria contained in section 11 O(i) of the Mine
Act, 30 U.S.C. § 820(i). W. Br. at 1-2. Wallace also states that the legislative history of the Act
indicates that the six penalty criteria "are to be used as avenues for mitigating the penalties" not
to "enhance the penalties[,]" as it asserts the judge did here. Id. at 3. The Secretary agrees with

In its petition, Wallace also raised the issue of whether the Commission is authorized
to assess a penalty of up to $5,000.00 per day under Section llO(b) of the Act, as it asserts the
judge did in this case. Because Wallace did not refer to this issue in its brief, we need not
address it. See Asarco Mining Co., 15 FMSHRC 1303, 1304 n.3 (July 1993).
2

482

Wallace's first contention, i.e., that the judge failed to address all six statutory criteria contained
in section 1 IO(i) of the Mine Act, but he disagrees with Wallace's second contention, i.e., that
the six penalty criteria serve only to mitigate proposed penalties and not to enhance them. S.
Mot. at 1-3.3
A. Statutory Penalty Criteria
Section 11 O(i) requires the Commission to consider six specified criteria in assessing civil
monetary penalties. See Sellersburg Stone Co. 5 FMSHRC 287, 291-92 (March 1983), aff'd, 736
F.2d 1147, 1152 (7th Cir. 1984). Section 1 lO(i) states, in pertinent part:
[T]he Commission shall consider the operator's history of previous
violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was
negligent, the effect on the operator' s ability to continue in
business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.
30 U.S .C. § 820(i). Further, the Commission and the courts have held that section 1 lO(i)
requires a judge to make findings of fact on the statutory criteria. Dolese Brothers Co., 16
FMSHRC 689, 695 (April 1994); Pyro Mining Co. v. FMSHRC, 3 MSHC (BNA) 2057, 2059,
785 F.2d 310 (Table) (6th Cir. 1986) ("[n]ot only must the Commission consider [the] criteria, it
is our opinion that the Commission must provide in its order findings of fact on each of the
statutory criteria."); Sellersburg, 5 FMSHRC at 292.
Because the judge failed to consider the criteria set forth in section 11 O(i) of the Act or to
make findings of fact with respect to them, we vacate the penalties assessed. We remand this
proceeding to the judge for further analysis consistent with the foregoing principles.
B . Penalty A.mounts
The Commission and its judges are not bound by the Secretary' s proposed penalties. See,
e.g. , Sellersburg, 5 FMSHRC at 290-93 (there the Secretary originally proposed penalties of

3

The Secretary did not file a brief; however, on December 18, 1995, he filed a motion
to remand the section 1lO(i) issue to the judge. In light of our disposition, the Secretary's
motion is moot.

483

$1,000, $78 and $78 for three violations and the judge assessed penalties of$7,500, $1,000 and
$1 ,000, respectively). When a civil penalty petition is filed and Commission jurisdiction
attaches, the judge assesses a penalty de novo, based upon the statutory penalty criteria and the
record evidence developed in the course of the adjudication. Id. at 291-92; United States Steel
Mining Co., Inc., 6 FMSHRC 1148, 1151(May1984).
Nothing in the language of section 11 O(i) suggests that the six criteria may serve only to
reduce penalties proposed by the Secretary. "(T]he penalties assessed de nova in a Commission
proceeding appropriately can be greater than, less than, or the same as those proposed by the
Secretary." Sellersburg, 5 FMSHRC at 293 .
We find no merit to Wallace's contention that the penalty criteria can be used only to
mitigate a proposed penalty. Accordingly, on remand, the judge may exercise his discretion in
assessing penalties, guided by the penalty criteria.

484

III.
Conclusion
For the foregoing reasons, we vacate the judge's civil penalty assessments and remand
this case to the judge for consideration and application of the Section 11 O(i) civil penalty criteria
to the facts of this case.

Marc Lincoln Marks, Commissioner

//
--+--~~~~~~~~~~~~~--

es C. Riley, Commissioner

485

__... .. .

Distribution:
Yoora Kim, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Arlington, VA 22203
James A. Nelson, Esq.
205 Cowlitz
P.O. Box 878
Toledo, WA 98591
Administrative Law Judge Authur J. Amchan
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judge
2 Skyline Pike, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041

486

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

Apr il 17, 1996

SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
On behalf of LONNIE BOWLING,
EVERETT DARRELL BALL,
WALTERJACKSON, AND
DAVID FAGAN

Docket Nos. KENT 95-604-D
KENT 95-605-D
KENT 95-613-D
KENT 95-615-D

v.

MOUNTAIN TOP TRUCKING COMPANY,
MAYES TRUCKING COMPANY, INC. ,
ELMO MAYES, WIT.LIAM DAYID RILEY,
AND ANTHONY CURTIS MAYES

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

ORDER
BY THE COMMISSION:

By order dated April 8, 1996, Administrative Law Judge Jerold Feldman certified for
interlocutory review by the Conunission, under Conunission Rule 76(a)(l)(i), 29 C.F.R.
§ 2700.76(a)(l)(i) (1995), his denial of the entry of appearance by private counsel for the
individual complainants in the instant proceeding. We conclude that the judge's ruling involves a
controlling issue of law and that immediate review may materially advance the final disposition of
the proceeding. Thus, we hereby grant review, pursuant to Commission Rule 76(a)(2), 29 C.F .R.
§ 2700.76(a)(2). We waive the filing of briefs from the parties otherwise required by the
Commission's rules in interlocutory review proceedings. See Commission Rule 76(e), 29 C.F.R.
§ 2700.76(c).

487

The judge's Order Denying Notice of Appearance, also dated April 8, 1996, denied the
entry of appearance by private counsel representing individual miner complainants in a
discrimination proceeding brought by the Secretary of Labor, pursuant to section 1OS(c)(2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (1994). Upon consideration
of the judge's order, we reverse. The right of a miner complainant to participate in a
discrimination proceeding brought by the Secretary is unequivocal. Section 105(c)(2) provides
that a complaining miner may present evidence. Commission Rule 4(a) reiterates that statutory
right and accords the complaining miner party status in a section 105(c)(2) proceeding. 29 C.F.R.
§ 2700.4(a). Commission Rule 3(c) further provides for entry of appearance by the representative
of a party. 29 C.F.R. § 2700.3(c).
Moreover, the Commission and a United States court of appeals have approved the use of
private attorneys in section 105(c)(2) actions. Eastern Assoc. Coal v. FMSHRC, 813 F.2d 639,
643 (4th Cir. 1987) ("The complainant has ... chosen to retain private counsel."), ajf'g Secretary
on behalf of Ribel v. Eastern Assoc. Coal Corp., 7 FMSHRC 2015, 2021(December1985)
(miner retained private counsel); Secretary on behalf of Gilbert v. Sandy Fork Mining Co., 9
FMSHRC 1327, 1339 n.6 (August 1987) ("Individual complainants remain free to retain private
counsel at any time.").

488

Accordingly, the judge's denial of the entry of appearance by the attorney representing the
individual miners is reversed and the judge shall accept his entry of appearance.

Marc Lincoln Marks, Commissioner
{\._

c.vv~

c.. . n LIJ ----I

£,.,__

ames C. Riley, Commissionet ,
v

\.

489

Distribution

Donna E. Sonner, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Tony Oppegard, Esq.
Mine Safety Project of the ARDF of KY, Inc.
630 Maxwelton Court
Lexington, KY 40508
Edward M. Dooley, Esq.
P.O. Box 97
Harrogate, TN 37752
Mary Mayes
Mayes Trucking Company
63 East Main St.
Richwood, VIV 26261
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

490

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

April 17 , 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEAL TH

ADMINISTRATION (MSHA)
v.

Docket No. WEST 95-512-M

DEATLEY COMPANY, INC.

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners
ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 80 1 et seq. (1994). On February 7, 1996, Chief Administrative Law Judge
Paul Merlin issued an Order of Default to DeAtley Company, Inc. ("DeAtley") for its failure to
answer the Secretary of Labor's petition for assessment of civil penalty or the judge's December
15, 1995, Order to Respondent to Show Cause. The judge assessed a civil penalty of $1,019.
In a letter to the judge dated March 16, 1996, DeAtley's office engineer, Max Jensen,
states that his predecessor contested the penalty and subsequently settled the case with the
Secretary. He explains that, shortly after receiving the settlement papers his predecessor resigned
without having the agreement signed. Jensen asserts that, when he discovered the
unconsummated settlement agreement, he immediately had it signed and mailed to the Secretary
along with payment in full of the stipulated amount. Jensen states that, on February 26, 1996,
DeAtley received a letter from the Secretary acknowledging receipt of the settlement payment
but demanding the balance ($512) of the original penalty. Jensen states he telephoned Matthew
Vadnal, the Secretary's counsel, to explain why the settlement agreement was returned late and
Vadnal suggested he contact the Commission.
On April 1, 1996, the Commission received the Secretary's response to DeAtley's March
16 letter. The Secretary requests the letter be treated as a request for relief from final judgment.
The judge's jurisdiction over this case terminated when his default order was issued on
February 7, 1996. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by

491

filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of a decision's
issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). · DeAtley's
letter was received by the Commission on March 21, after the judge's default order had become a
final decision of the Commission.
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R.
§ 2700.1 (b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of
applicable Commission rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991).
On the basis of the present record, we are wiable to evaluate the merits of DeAtley' s position. In
the interest ofjustice, we reopen the proceeding, treat DeAtley' s letter as a late-filed petition for
discretionary review requesting relief from a final Commission decision, and excuse its late
filing. See, e.g., Kelley Trucking Co., 8 FMSHRC 1867, 1868-69 (December 1986). We remand
the matter to the judge, who shall determine whether final relief from default is warranted. See
Hick01y Coal Co., 12 FMSHRC 1201, 1202 (Jwie 1990).

492

Distribution

Matthew L. Vadnal, Esq.
Office of the Solicitor
U.S. Department of Labor
1111 Third Avenue, Suite 945
Seattle, WA 9810 I
Max S. Jensen, Office Engineer
DeAtley Company, Inc.
3665 Snake River Avenue
P.O. Box648
Lewiston, ID 83501
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

49 3

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, O.C. 20006

April 19 , 1996

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

v.

Docket Nos. KENT 93-318-R
KENT 93-319-R
KENT 93-320-R
KENT93-437

PEABODY COAL COMPANY

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

DECISION
BY: Doyle, Holen and Riley, Commissioners
This consolidated contest and civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), raises the
issue of whether violations of 30 C.F.R. § 70.lOO(a) (1995) 1 by Peabody Coal Company
("Peabody") were caused by its high negligence and unwarrantable failure 2 to comply with the
standard. Administrative Law Judge Arthur Amchan determined that the violations were the
result of Peabody's high negligence and unwarrantable failure. 16 FMSHRC 42 (January 1994)
(ALJ). For the reasons that follow, we reverse and remand.

1

30 C.F.R. § 70.lOO(a) provides in part:
Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during
each shift to which each miner in the active workings of each mine
is exposed at or below 2.0 milligrams of respirable dust per cubic
meter of air ....

2

The unwarrantable failure terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused by
"an unwarrantable failure of [an] operator to comply with ... mandatory health or safety
standards .... "

494

I.
Factual and Procedural Background
Peabody operates the Camp No. 1 mine, an underground coal mine in Morganfield,
Kentucky. On January 6, 1993, Arthur Ridley, an inspector from the Department of Labor's
Mine Safety and Health Administration ("MSHA"), issued a citation and an order, pursuant to
section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), alleging significant and substantial ("S&S")
and unwarrantable violations of section 70.lOO(a) based on analysis of dust samples collected
pursuant to 30 C.F.R. § 70.207 (1995). 3 16 FMSHRC at 43; Tr. 17, 78, 104. Dust samples from
the period November I-December 31 , 1992, revealed that the continuous miner operators for
mechanized mining unit ("MMU") 044 and MMU 056 had been exposed to average dust
concentrations of2.4 milligrams ofrespirable dust per cubic meter of air ("mg/m 3"). 16
FMSHRC at 43. On January 20, the inspector issued an order, pursuant to section 104(d)(2) of
the Act, 30 U .S.C. § 814(d)(2), alleging an S&S and unwarrantable violation of the same
standard based on analysis of samples collected during the period January I-February 28, 1993,
which showed that the continuous miner operator ofMMU 047 had been exposed to an average
dust level of 2.2 mg/rp.3. Id.
\

Inspector Ridley testified that he designated the violations as unwarrantable because
Peabody had violated the standard numerous times in the past and he thought that sterner
measures might induce compliance. Tr. 39, 42, 65, 101-02. In the two years preceding issuance
of the subject citation and orders, Peabody had received a citation or an order alleging excessive
dust exposure for the operator of MMU 044 during four of the nine bimonthly cycles in which
coal had been produced, for the operator of MMU 056, during four of eleven cycles and, for the
operator of MMU 047, during two of four cycles. 16 FMSHRC at 44; Gov't Exs. 1, 2, 3.

3

30 C.F.R. § 70.207 is entitled, "Bimonthly sampling; mechanized mining units."
Subsection (a) provides in part:
Each operator shall take five valid respirable dust samples
from the designated occupation in each mechanized mining unit
during each bimonthly period beginning with the bimonthly period
of November 1, 1980. Designateq occupation samples shall be
collected on consecutive normal production shifts or normal
production shifts each of which is worked on consecutive days.
After collecting the samples, Peabody sent them to the Pittsburgh Health Technology Center
("PHTC") for evaluation. Tr. 17, 21, 77-78. The PHTC weighed the samples and sent reports of
the results to Peabody and MSHA. Tr. 104.

495

Inspector Ridley testified that, at least twice during this period, he informed Peabody personnel
that they needed to "do more than just take ... samples." Tr. 40, 68-69, 134-36.
In order to abate the citation and orders, Peabody was required by the inspector to
designate additional personnel to supervise sampling. Tr. 55-56, 72-73, 96. The inspector
believed that respirable dust could be maintained within required limits if Peabody complied
with its plan. Tr. 54-56. His belief was based, in part, on the fact that, when MSHA had
supervised sampling in 1991 and 1992, Peabody had achieved compliance with section
70.IOO(a). 4 Tr. 49, 69-70, 89. When samples of MMUs 044, 056, and 047 taken under
supervised conditions showed respirable dust within acceptable limits, the citation and orders
were terminated. 5 J. Exs. 4, 5, 6.
Peabody conceded that it had violated section 70. l OO(a) in all three instances and that the
violations were S&S, but disputed that the violations had been caused by its unwarrantable
failure to comply with the standard. Peabody presented evidence that in January 1992,
approximately a year before the subject citation and orders were issued, it began taking extensive
measures to increase water flow and improve dust control. Water flow gauges were installed to
monitor the quantitY. of water going to the sprays and scrubbers on continuous miners. 16
FMSHRC at 45. Pe~body also began working with the equipment manufacturer to reduce water
and air restrictions within the continuous miners. Id. at 46. Over a period of six to seven
months, beginning in February 1992, Peabody increased the size of fittings on several miles of
water lines leading to the continuous miners and replaced plastic pipe with steel pipe, which
could tolerate greater water pressures. Id. at 45. In March 1992, it increased the size of the water
line leading to the continuous miners from one inch to one-and-a-half inches and increased water
volwnes on the continuous miners by 25% or 50%, depending upon the type of machine. Id. In
July 1992, Peabody replaced existing water pwnps with special pwnps that would increase water
pressure and volume. Id. To increase scrubber efficiency, commencing in November 1992,
Peabody installed water sprays inside the ductwork of the continuous miners. Id.
The judge found that, given Peabody's compliance history and the Mine Act's emphasis
on preventing respiratory disease, Peabody' s "failure to leave any stone unturned" in resolving
its noncompliance with section 70.1 OO(a) amounted to aggravated conduct, exceeding ordinary
negligence. 16 FMSHRC at 48. He explained that a prudent employer would have undertaken a

4

MSHA had supervised sampling for MMU 044 on March 28, 1991, and for MMU 047
on September 10, 1992. Tr. 47-48, 89. Analysis of those samples revealed average dust levels of
1.1 mg/m3 and 0.8 mg/ m 3, respectively. Tr. 48, 89.
s After the citations and orders had been terminated, Peabody continued to assign
additional personnel to supervise sampling. Tr. 190. Supervisors observed that miners
sometimes failed to correctly use line brattice and to position themselves in an area of least
possible exposure to dust. Tr. 214-15.

496

comprehensive investigation, which would have revealed that employee work practices were
deficient. Id. Relying on his finding that, in January 1993, Inspector Ridley found three of
Peabody's six MMUs to be in violation of the dust standard, the judge concluded that Peabody's
"compliance record during 1991 and 1992, create[dJ a rebuttable presumption that the violations
were due to an unwarrantable failure." Id. at 48-49. He stated that, had Peabody shown it had
"taken every conceivable step to rectify the problem," he would have been inclined to find
ordinary negligence. Id. at 49. The judge further determined that sampling by MSHA in 1991
and 1992 had put Peabody on notice that it could have achieved compliance without altering its
equipment and that other efforts were necessary. Id. Accordingly, the judge concluded that the
violations had resulted from Peabody's unwarrantable failure and high negligence. Id. at 48-49.
The judge assessed civil penalties of$15,000, noting, by analogy, that the Occupational Safety
and Health Act ("OSHAct") provides for increased penalties for repeated violations. Id. at 46.
The Commission granted Peabody' s petition for review and allowed amicus curiae
participation by twelve organizations.

II.
Disposition
Peabody asserts that the judge erred in concluding that its violations were caused by high
negligence or unwarrantable failure.6 It argues that there was no evidence it had failed to comply
with its dust control plan, it could not know whether it was in compliance until it was too late to
avoid a violation, and it had taken extensive and reasonable remedial measures to improve dust
control. PDR at 5-7. It contends further that the judge erred in creating a rebuttable presumption
of unwarrantable failure based on its compliance history. Id. at 11-12. It also contends that the
judge erred in relying on the OSHAct in assessing civil penalties. Id. at 16-17.
The Secretary asserts that the judge, in effect, applied the correct standard for
unwarrantable failure. S. Br. at 17-18 n.15, 20-21 n.17. He further contends that substantial
evidence supports the judge' s findings of high negligence and unwarrantable failure because
Peabody knew or had reason to know of a persistent compliance problem based on its past
violations and warnings from MSHA. Id. at 10-14. The Secretary asserts Peabody had ample
opportunity to take reasonable and effective remedial measures and failed to do so. Id. at 14-21.
In Emery Mining Corp., 9 FMSHRC 199? (December 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id.
at 2003-04. Unwarrantable failure is characterized by such conduct as "reckless disregard,"

6

The amici filed a joint brief generally supporting Peabody's position.

49 7

"intentional misconduct," "indifference" or a "serious lack ofreasonable care."7 Id. Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991). The Commission has required that
an operator's good faith efforts in trying to achieve compliance with a standard must be
reasonable. Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615 (August 1994). Where an
operator reasonably believes in good faith that its conduct is the safest method of compliance,
such conduct is not aggravated conduct constituting more than ordinary 11egligence. Utah Power
and Light Co., 12 FMSHRC 965, 972 (May 1990) ("VP&r').
We conclude that the judge erred in finding unwarrantable failure based on the operator's
"failure to leave any stone unturned" and take "every conceivable step" in attempting to
eliminate the violations. 16 FMSHRC at 48-49. The judge, after referring to the proper standard
for unwarrantable failure set forth in Commission precedent, fai led to apply it. In effect, he
imposed a standard for unwarrantable failure close to one of strict liability.
The judge further erred by creating a rebuttable presumption, in effect, that the violations
resulted from Peabody's unwarrantable failure based on its compliance history and his finding
that three of six MMUs were out of compliance during the inspector's visits in January 1993. Id.
Commission case law does not recognize a presumption of unwarrantable failure based on an
operator's history ofnoncompliance. Under Commission precedent, various factors are
examined to detennine whether a violation is unwarrantable. Peabody Coal Co., 14 FMSHRC
1258, 1261 (August 1992) (citations omitted). Repeated similar violations may be relevant to an
unwarrantable failure determination to the extent that they serve to put an operator on notice that
"greater efforts are necessary for compliance" with a standard. Id. That an operator has received
such notice, however, is not dispositive of whether a subsequent violation of the standard is
unwarrantable. An operator' s good faith efforts in attempting to achieve compliance must be
examined in making that determination. UP&L, 12 FMSHRC at 972 ; see Westmoreland Coal
Co., 7 FMSHRC 1338, 1342 (September 1985).
Further, contrary to the judge' s finding, the inspector did not find three of the six units
out of compliance during any one sampling cycle. MMUs 044 and 056 had been in violation
during the November-December 1992 cycle, while MMU 047 had been in violation during the
January-February 1993 cycle. Gov't Exs. 1, 2, 3.
The judge essentially found that Peabody's remedial efforts were insufficient to
overcome high negligence and unwarrantable failure findings because previous instances of
supervised sampling should have indicated to Peabody that water flow alterations were
unnecessary and that "something else, such as closer attention to proper work practices, was
necessary." 16 FMSHRC at 49. The judge erred in failing to recognize the relationship between

7

Contrary to the Secretary's assertions (S. Br. at 10-14), a "had reason to know"
standard is not determinative of unwarrantable failure. Virginia Crews Coal Co., 15 FMSHRC
2103, 2107 (October 1993); Cyprus Plateau, 16 FMSHRC at 1614.

498

an increased water supply and dust control, testified to by witnesses of both parties. 8 Tr. 50, 20203. Furthermore, the record shows that Peabody did, in fact, address work practices by
reviewing provisions of its dust control plan with miners during safety meetings and annual
refresher training. Tr. 213. In addition to its ordinary training measures, in May 1992,
Peabody's superintendent, chief mine manager, and safety supervisor went to each working
section of the mine and explained the dust control plan in great detail to miners, informing them
that they were expected to comply with the plan at all times. Tr. 213-14.
The record also shows that Peabody' s efforts to increase water flow were extensive,
sustained, and intended to control dust at all times, not only during sampling. The judge seemed
to construe Peabody' s considerable investment oftime and expense toward achieving a
systematic engineering solution as the modem day equivalent to fiddling while Rome burned.
Peabody's persistence in attempting to reduce respirable dust levels through engineering controls
rather than relying on work practice reforms, which depend for success on individual worker
compliance with the dust control plan at all times, was entirely reasonable. Moreover, the
evidence indicates that Peabody had reason to believe that its remedial efforts were working. As
to MMU 044, dust levels had been in compliance according to samples taken in the March-April
1992 and May-June 1992 sampling periods, the two most recent sampling periods during which
MMU 044 was in production prior to the November-December 1992 reading that led to the
January 6 citation.9 J. Ex. 2. With respect to MMU 056, dust levels were also in compliance
during the three sampling periods immediately preceding the November-December sampling that
gave rise to the January 6 order. Id. As to MMU 047, it was either in compliance or out of
production for every sampling period except one between May 1991 and the January-February
1993 sampling period that gave rise to the January 20 order. Id.
We conclude that Peabody's remedial measures clearly demonstrate a good faith,
reasonable belief that it was taking the steps necessary to solve its dust problems and this record
cannot support a finding of high negligence or unwarrantable failure.
We disagree with the dissenting Commissioners that an operator bears the burden of
proving significant compliance efforts to avoid a determination that a violation is unwarrantable,
slip op. at 10, or that the seriousness of a violation is relevant in a determination of
unwarrantable failure. Id. at 10-11. Commission precedent has established that the Secretary
bears the burden of proving that an operator's conduct, as it relates to a violation, is
unwarrantable . Virginia Crews, 15 FMSHRC at 2107. Commission precedent has also
established that various factors are considered in determining whether conduct by an operator is

8

The judge stated that "it is unclear what, if any, relationship exists between the
measures taken by Respondent to increase water supply to its working sections and the numerous
citations issued to it for respirable dust violations." 16 FMSHRC at 48.
9

MMU 044 was idle from July through October 1992.

499

unwarrantable, irrespective of the seriousness of a violation. Further, the Mine Act, in setting
forth the terminology of unwarrantability, establishes more severe sanctions for an unwarrantable
violation, irrespective of its seriousness. Section 104(d)(l) provides that a withdrawal order is to
be issued whenever "the Secretary finds another violation of any mandatory health or safety
standard and finds such violation to be also caused by an unwarrantable failure of such operator
to so comply .... " 30 U.S.C. § 814(d)(l)(emphasis added).
We also disagree that "the success or failure of an operator's effort to achieve compliance
is a factor that must be considered" in determining unwarrantable failure. Slip op. at 8. If the
operator's effort had been successful, there would have been no violation.

III.
Conclusion
For the foregoing reasons, we reverse the judge's high negligence and unwarrantable
failure findings and remand for reassessment of civil penalties. 10

~,,7;L
Arlene Holen, Commissioner

10

Given our disposition, we need not-reach Peabody' s arguments that the judge erred in
assessing penalties. We caution the judge, however, against relying on OSHAct concepts in
assessing penalties.

500

Chairman Jordan and Corrunissioner Marks, concurring in part and dissenting in part:
We agree with our colleagues that the judge's failure to appreciate the significance of
water in controlling dust prevented him from evaluating the reasonableness of Peabody's
remedial measures and that, therefore, his unwarrantability determination cannot be upheld.
However, by deciding to reverse, rather than vacate, the judge's determlliation, our colleagues
take the view that this record would not permit the conclusion that the respirable dust violations
at issue resulted from more than ordinary negligence. We do not agree. Because we are not
convinced that this record, viewed as a whole, cannot support a finding of unwarrantable failure
under the standard enunciated in Emery Mining Corp., 9 FMSHRC 1997 (December 1987), and
its progeny, we would vacate the judge's determination and remand that issue for further
analysis.
In deciding that the instant violations were caused by the operator's unwarrantable failure
to comply, the judge placed great weight on the operator's history of violations, attributing
virtually no significance to the operator's efforts to come into compliance during the course of
the two years in question. In deciding to reverse the judge's determination, however, we fear our
colleagues have appro~ched the record from an opposite but equally narrow focus. The majority
accords controlling wetght to the operator's unsuccessful engineering changes, but attaches little
if any significance to thi·s operator's dismal compliance record, or to the operator's continuing
failure to come into compliance a full year after it had begun to implement the remedial measures
upon which it relies. Regarding this aspect of the evidence, our colleagues opine that Peabody
was not "fiddling while Rome burned." Slip op. at 6. We submit that the majority pays too little
heed to the charred remains of the Eternal City. The majority ignores the fact that the success or
failure of an operator's effort to achieve compliance is a factor that must be considered in
deciding whether the operator acted reasonably and in good faith.

501

The data in the margin reveals the scope of Peabody's compliance problem and
illuminates why, on January 6, 1993, Inspector Ridley resorted to the more severe sanctions
associated with the unwarrantable failure provisions of the Act. 11 During nine of the thirteen
sampling cycles that occurred between January 1991 and February 1993, respirable dust
exceeded the mandatory limit for at least one of the three MMUs. Gov't Exs. 1-3. Over 48% of
the samples taken at these MMUs during active mining were out of compliance. Id During four
test periods, the respirable dust exceeded permissible levels for two out of three MMUs. Id. The
excessive dust levels resulted in Peabody receiving nine citations and one withdrawal order prior
to the issuance of the instant citation and orders alleging unwarrantable failure. Id.
Peabody began implementing the environmental controls it relies on in this preceding
during January 1992, approximately one year before the subject citation and orders were issued.
16 FMSHRC at 45. These efforts continued though mid-December 1992. Id.; Tr. 185-87.
During this same time period, however, Peabody received four more citations for exceeding the
respirable dust standard. Gov't Exs. 1-3.
A citation was issued on October 7, 1992, when Peabody's bimonthly sample for MMU
047 revealed an average dust level of 2.4 mg/m3 . Gov't Ex. 3. A few weeks earlier, on
September 10, 1992, the Department of Labor's Mine Safety and Health Administration

11

Gov 't Exs. l, 2 and 3 establish the following average dust concentrations. Sampling
periods during which an MMU was not in compliance with the 2.0 mg/m3 maximum permitted
by section 70.IOO(a) are shown in bold.

Samplin2 Period

MMU
044

~

MMU

MM1J
047

Jan.-Feb. '91
Mar.-Apr. '91

3.3
2.2

2.2
2.0

Non producing
3.0

May-June '91
July-Aug. '91
Sept.-Oct. '91
Nov. - Dec. '91
Jan.- Feb. '92
Mar.-Apr. '92
May-June ' 92
July - Aug. '92
Sept.- Oct. '92
Nov.-Dec. '92
order
Jan.-Feb. '93

1.4
1.9
1.5
2.7
2.8
1.8
1.5
Non producing
Non producing
2.4

2.7
1.8
2.0
1.7
2.9
2.6
1.3
1.2
1.6
2.4

Non producing
Non producing
Non producing
Non producing
Non producing
Non producing
Non producing
1.9
2.4
l.4
2.2

502

Results
104(a) cits. 2/6/91, 2/8/91
104(b) order 3/28/91; 104(a) cit.
512191
104(a) cit. 7/19/91

104(a) cit. 12/2/91
I 04(a) cits. 2/3/92, 2/11192
104(a) cit. 4129192

104(a) cit. 1017/92
104(d)(l) cit. 1/6/93; 104(d)(l)
116/93
104(d)(2) order 1120/93

("MSHA") had taken a sample at the very same location and had obtained a dust level of only
0.8 mg/m 3• Tr. 89.
The bimonthly sample taken during November - December 1992 showed MMU 047 to
be in compliance, but revealed violative respirable dust levels for MMUs 044 and 056, thus
prompting the issuance, on January 6, 1993, of the section 104(d)( 1) citation and section
104(d)( 1) order which are before us in this proceeding. Gov 't Exs. 1-3. The next bimonthly
sampling revealed MMU 04 7 to be back out of compliance, thereby precipitating the issuance of
the third enforcement action under review, the section 104(d)(2) order issued on January 20,
1993.
Our colleagues agree that an operator' s compliance history is a factor to be considered in
the unwarrantable failure determination. Slip op. at 5. In this case, however, the majority
concludes that the judge erred in concluding that Peabody's poor compliance record created a
"rebuttable presumption" of unwarrantable failure. Id. The judge's reference to a rebuttable
presumption should not obscure the importance of the compliance history, particularly in a case
involving a respirable dust violation. The Commission has refused to restrict the use of evidence
of compliance history in unwarrantable failure determinations. See Peabody Coal Co. , 14
FMSHRC 1258, 1263 (August 1992). In light of the compliance record here, the judge did not
need the assistance of a rebuttable presumption to accord it significant weight. 12 Once the
Secretary presented evidence of this operator's repeated failure to comply with respirable dust
levels, along with evidence of the extent and duration of the violation, it was up to Peabody to
come forward with convincing evidence of its attempts to come into compliance or risk an
adverse ruling on the issue ofunwarrantability. As our colleagues point out, Peabody did come
forward with evidence; however, while we agree that the evidence of Peabody's remedial efforts
fairly detracts from the weight that might otherwise be accorded to the operator' s poor
compliance record, we are not prepared to say that such evidence requires the conclusion that the
operator's conduct was not unwarrantable.
In determining the reasonableness of the operator's efforts, our colleagues fail to
consider the significance of the judge's observation that "the record in this case suggests that
Respondent's employees have been regularly exposed to respirable dust levels above those
allowed by the standard [30 C.F.R. § 70.lOO(a)] for a two year period." 16 FMSHRC at 47. In
evaluating that fact, we must bear in mind that each violation citing overexposure to respirable
dust is deemed serious because of the cumulative nature of the risk posed. See Consolidation
Coal Co., 8 FMSHRC 890, 898-99 (June 1986). In.contrast with a violation that may
temporarily expose a miner to the risk of injury or death, but that leaves the miner no worse off
once the violation is corrected and the hazard removed, the effects of a violation involving
overexposure to respirable dust remain with the miner even after compliance with the standard is

12

Commissioner Marks agrees with the judge' s recognition of a rebuttable presumption
in light of Peabody' s previous history of violations.

503

achieved, increasing his risk of contracting black lung and other respirable diseases. Id. at 89394. As one commentator has observed: "The amount of care demanded by the standard of
reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater the
actor is required to exercise caution commensurate with it." W. Page Keeton et al., Prosser and
Keeton on the Law o/Torts § 34, at 208 (5th ed. 1984). In light of the cumulative effects posed
by dust exposure, an operator's repeated failure to maintain compliance with maximum
allowable dust levels during a two year period poses a grave danger to its miners' health and
such operator should be expected to defend against an unwarrantable failure charge by
demonstrating considerable efforts to come into compliance in order for its actions to be
considered reasonable and undertaken in good faith. 13
We find it notable, as do our colleagues, that the various engineering changes Peabody
implemented are intended to control dust at all times. See slip. op. at 6. However, we also find it
notable, as did the judge, that as early as March 1991, prior to Peabody's implementation of any
changes in dust suppression measures, MSHA was able to obtain a sample which revealed an
average dust level of only 1.1 mg/m3 for MMU 044. Tr. 47-48; see J6 FMSHRC at 49.
MSHA 's sample was taken on the heels of operator samples showing excessive dust levels for
two consecutive cycles. These violative samples had triggered a section 104(b) failure to abate
order, issued the sani~ day Inspector Ridley obtained his low reading. Tr. 47-48. Inspector
Ridley made Peabody aware of his sampling results in a letter to Mr. Englehart, Peabody's
president, dated April 10, 1991. Tr. 48.
However reasonable it might have been for Peabody to conclude initially that engineering
changes would correct the dust problem, that position became increasingly less defensible as
MSHA continued to cite Peabody and confront it with MSHA's own samples indicating that
compliance with the standard was achievable with the equipment already on site. The low
reading obtained by MSHA as early as March 1991, without engineering changes, and the
continued exposure of employees to excessive dust levels for the next 18 months, prevent us

13

Our colleagues are correct that the violation of any safety or health standard may give
rise to a determination of unwarrantable failure. Slip op. at 6-7. It does not follow, however,
that the seriousness of a violation is never relevant in determining whether an operator
unwarrantably failed to comply with a standard. Contrary to the assertion of our colleagues,
neither Commission precedent nor section 104(d)(l) of the Act preclude a judge who is
attempting to evaluate the reasonableness of an operator's unsuccessful efforts to come into
compliance with a standard from considering the nature of the hazard against which that standard
is designed to protect. We are mindful of the judge's observation below that "the record in this
case suggests that Respondent's employees have been regularly exposed to respirable dust levels
above those allowed by the standard for a two year period." 16 FMSHRC at 47. Unlike our
colleagues, we consider the potential impact of these repeated exposures to be a relevant factor in
evaluating the operator's conduct.

504

from concluding that this record cannot, as a matter of law, support a determination of
aggravated conduct constituting unwarrantable failure.
In light of the compliance history in this case, it is inescapable that Peabody was on
notice that not only greater, but different efforts were necessary to attain compliance with the
standard. Yet the record shows that Peabody hewed to its reliance on water sprays to correct the
problem, and there is no indication that Peabody undertook to conduct any investigation to
determine why "its sampling results exceeded the permissible exposure limit on a regular basis,"
16 FMSHRC at 48, or why MSHA was able to obtain such dramatically lower sampling results.
Indeed, it does not appear that Peabody engaged in any discussion with MSHA about the
discrepancy in sampling results, nor did Peabody even inform MSHA of its efforts to improve
water flow until after MSHA issued the orders which are the subject ofthis proceeding. Tr. 19395. In our view, Peabody's failure to engage in any investigation or discussion detracts from its
claim that it made reasonable and good faith efforts to come into compliance. Unlike our
colleagues, therefore, we are unwilling to conclude that the remedial measures implemented by
Peabody must defeat a finding of unwarrantable failure as a matter of law.
In concluding that Peabody's remedial measures "[were] entirely reasonable," slip op. at
6, our colleagues may have been influenced by the contrast between Peabody's efforts,
unsuccessful as they were, and the unreasonable approach urged by the MSHA inspector. To
abate the section 104(d) order under review, Inspector Ridley required Peabody to assign
additional personnel who could watch the employees while the dust samples were taken, to
ensure that the employees were properly positioning themselves and using the line curtain or
brattice to direct intake air to the working face. Tr. 55-57, 72-73. The problems with this form
of "abatement" are obvious and were aptly pointed out by the judge in his opinion:
Section 70 .100(a) requires that each operator shall
continuously maintain the average concentration of respirable dust
at or below 2.0 mg/m 3 • Pursuant to 30 C.F.R. § 70.207, sampling
is to be taken during a normal production shift. This suggests that
the sampling is to be representative of an employee's regular daily
exposure to respirable dust ....
Sampling that is artificially low because supervisory
personnel are constantly watching and directing the sampled
employees would appear to be violatiye of section 70.207.

16 FMSHRC at 47.
Admittedly, any approach to dust suppression may appear, at first blush, to be reasonable
when compared to a procedure which may produce samples that are not representative of the
mine atmosphere. But the fact that Peabody's systemic, albeit unsuccessful, effort to control dust

505

is preferable to a method which appears to violate the Act, does not necessarily establish that
Peabody has acted reasonably and in good faith. 14
For the foregoing reasons, we would vacate the judge's unwarrantable failure holding and
remand for reanalysis.

C!:c,,.. - ~ ..

~ •.L:..-..-.A•'

....... ,. .

Marc Lincoln Marks, Commissioner

14

The record offers reason to believe that employees' work practices may still be
creating a risk of overexposure at Camp No. 1 mine. Peabody safety supervisor Brent Roberts
testified that the operator continues to conduct the supervised sampling required by MSHA to
abate the orders under review. Tr. 214. He acknowledged that during such times he has had
occasion to correct prohibited work practices that led to the problem in this case, including the
failure to use curtain or line brattice to direct air to the continuous miner, and miners' positioning
themselves on the dustier, exhaust side of the working place. Tr. 214-15. 30 C.F.R. § 75.330
(1995) requires the use of ventilation control devices such as brattice to direct air to the working
face, and the dust control plan requires miners to position themselves so that they are exposed to
the least amount of dust possible. Tr. 215. From this evidence, it is possible to conclude that
employees may still be engaging in prohibited work practices that result in overexposure to
respirable dust. Unfortunately, due to the supervised sampling technique insisted upon by
MSHA, such overexposure is likely to go undetected.

506

Distribution

David R. Joest, Esq.
Peabody Coal Company
1951 Barret Court
P.O. Box 1990
Henderson, KY 42420
Tanna Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Michael F. Duffy, Esq.
National Mining Association
1130 17th Street, N. W.
Washington, D.C. 2003~
Administrative Law Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

507

FEDERAL MINE SAFETY AND HEALTH REVI EW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, O.C. 20006

April 19, 1996

JIM WALTER RESOURCES, INC.
v.

Docket No. SE 94-244-R
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMfNISTRATION (MSHA)

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

DECISION
BY: Doyle and Holen, Commissioners
This contest proceeding, arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involves a citation and withdrawal order
issued by the Department of Labor's Mine Safety and Health Administration ("MSHA") to Jim
Walter Resources, Inc. ("JWR") alleging a violation of30 C.F.R. § 75.400. 1 The Commission
granted the petition for discretionary review ("PDR") filed by the Secretary of Labor, which
challenged Administrative Law Judge Gary Melick's decision that the Secretary had not met his
burden of proving either that the violation was significant and substantial ("S&S")2 or that it had

' 30 C.F.R. § 75.400 states:
Coal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings,
or on electric equipment therein.
"Active workings" is defined in 30 C.F.R. § 75.2 as "[a]ny place in a coal mine where miners are
normally required to work or travel."
2

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l ), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a .. . mine safety or health hazard .... "

50 8

resulted from JWR's unwarrantable failure to comply with the standard.3 16 FMSHRC 1511
(July 1994) (ALJ). We affirm the judge's determinations.
I.
Procedural and Factual Background
On January 24, 1994, MSHA Inspector Thomas Meredith cited JWR for a violation of
section 75.400 because of trash accumulations in the No. 2 entry of JWR' s No. 7 Mine. Tr. 2930; Govt. Ex. 3. See 16 FMSHRC at 1514.
On January 31 , 1994, the date of the citation at issue, Meredith conducted a follow-up
inspection and confirmed that JWR had abated the conditions that led to the issuance of the
January 24 citation. Tr. 31. During the inspection, he observed in the No. 3 entry an
accumulation of trash at the check curtain, which directed ventilation across the longwall face
and also separated the active outby area from the inactive inby area. Tr. 16; 64. The judge
found that the trash in the outby area consisted of"[a] garbage bag, one box and one rock dust
bag .. .. " 16 FMSHRC at 1513. In by the curtain, there was a larger accumulation of trash that
extended for 250 feet ~nd included paper bags, rags, rock dust bags, wooden pallets and large
cable spools. Tr. 21 -24; Gov' t Ex. 2. The materials on both sides of the curtain were
combustible. Tr. 24. See 16 FMSHRC at 1512.
Inspector Meredith issued a citation, which charged a violation of section 75.400, and a
withdrawal order, pursuant to section 104 (d)(2) of the Act, 30 U.S.C. § 814 (d)(2). The
inspector designated the violation as S&S and alleged that it was due to the operator's
unwarrantable failure to comply with the standard. 16 FMSHRC at 1511-13; Govt. Ex. 2.
JWR challenged the citation and, following hearing, Judge Melick affirmed the violation.
Although he noted that the existence of accumulations inby and outby the check curtain was
undisputed, the judge concluded that "the inactive inby area cited in the order was not within the
'active workings' and the accumulations located therein were therefore not in violation of the
cited standard." Id. at 1512. He further concluded that the evidence concerning combustible
material outby the line curtain was insufficient to establish that the violation was S&S. 16
FMSHRC at 1512-13. The judge also determined that the evidence was insufficient to establish
that the violation was due to the operator's unwarrantable failure. Id. at 1513-14.

3

The unwarrantable failure terminology is taken from section 104 (d)(l) of the Act, 30
U.S.C. § 814 (d)(l), which establishes more severe sanctions for any violation that is caused by
"an unwarrantable failure of [an] operator to comply with ... mandatory health or safety
standards . . .. "

509

II.
Disposition
The central issue as to both the S&S and unwarrantability designations of the violation is
the consideration to be given the trash accumulation inby the check curtain. The inspector cited
this accumulation, along with the trash outby the curtain (see Govt. Ex. 2), and considered it in
designating the violation S&S and unwarrantable. Tr. 51-52, 53-56. Before the judge, the
Secretary argued that the area inby the check curtain was not "an inactive area. " Tr. 73. The
judge, however, held that, because the area inby the check curtain was not within the "active
workings of the mine," the trash accumulation in that area was not violative of section 75.400.
16 FMSHRC at 1512. The Secretary contends on review that the judge erred in failing to
consider accumulations on the inby side of the check curtain. PDR at 3. 4 The Secretary notes
that miners traveled inby the curtain after the materials accumulated in the entry and that the
judge's interpretation of section 75.400 in ignoring the inby accumulations defeats the purpose of
the regulation. Id. at 8-12. The Secretary has not appealed the judge's determination as to the
non-violative nature of the inby accumulation, however, and. thus, it is not in issue in this
proceeding. 30 U.S.C. § 823(d)(2)(A)(iii). The Secretary nevertheless relies on the inby trash
accumulation to substMtiate his S&S and unwarrantability allegations. Thus, we must decide the
effect, if any, of the non-violative trash accumulation.
A.

Significant and Substantial

In challenging the judge's S&S determination, the Secretary argues that he failed to
address certain evidence relating to the reasonable likelihood of injury under the criteria of
Mathies Coal Co .. 6 FMSHRC 1, 3-4 (January 1984). PDR at 2-3. The Secretary also asserts
that the judge did not address uncontradicted testimony that the check curtain was placed directly
on top of combustible material, that the trash was highly combustible, that the mine had a history
of methane ignitions and problems with spontaneous combustion, and that the accumulations in
the No. 3 entry were close to the face, increasing the possibility of fires. Id. at 6-8.
JWR responds that an accumulation in the inactive area is not a violation, that the
Secretary' s argument in support of S&S focuses on that non-violative accumulation, and that the
limited amount of material in the active area was not reasonably likely t~ result in an injury.
JWR Br. at 4. In response to the Secretary's argument that the judge failed to address testimony
regarding spontaneous combustion, methane emissions, and fires at the face, JWR states that the
judge properly discounted such possibilities based on Inspector Meredith's own testimony. Id. at
5.

4

The Secretary designated his PDR as his brief.

510

A violation is S&S if, based on the particular facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
1981 ). In Mathies Coal Co., the Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum. the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -- that is. a
measure of danger to safety -- contributed to by the violation; (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.
6 FMSHRC at 3-4. See also Austin Power, Inc. v. Secret01y, 86 I F.2d 99, l 03-04 (5th Cir.
1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
In finding that the violation was not S&S, the judge concluded that the Secretary failed to
meet his burden ofprd?fas to the third element of Mathies. 16 FMSHRC at 1513. We agree.
As the judge noted, the Secretary's evidence ''referenced the massive accumulations in the
inactive area and evidence was not elicited as to whether the few combustible items found in the
active area at issue constituted a 'significant and substantial' violation." Id. The judge
concluded that the inby accumulation was not violative (id. at 1512) and the Secretary failed to
appeal the judge's determination on that issue. Thus, it is not before us on review. Because
section 104(d)(l) expressly provides that an S&S determination arises from the nature ofa
violation, the inby, non-violative accumulation cannot support an S&S designation as to the
outby, violative accumulation. Cf Consolidation Coal Company, 17 FMSHRC 250, 254 (March
1995) (S&S determination depends upon validity of underlying citation). The dissenting
Commissioners would impermissibly use the Secretary's evidence as to the seriousness of nonviolative conduct to establish that the violative conduct was S&S. Slip op. at 9-10.
B.

Unwarrantable Failure

In support of his position that the judge erred in not finding the citation to have resulted
from the operator's unwarrantable failure, the Secretary argues that the judge failed to consider
the inby accumulation and JWR' s trash accumulation in the adjacent entry cited the previous
week. PDR at 13-14. The Secretary further argues that the judge improperly discounted a
statement from JWR' s longwall coordinator that JWR had failed to clean up the accumulation
because of a manpower shortage. Id. at 14-15.
JWR argues that the determination of whether an accumulation is unlawful turns on
whether it is located in "active workings," i.e., a place where miners are normally required to

511

work or travel. JWR Br. at 3. It contends that an accumulation in the inactive inby area does not
violate section 75.400 and cannot support a finding of unwarrantability. Id. at 4.
In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id.
at 2001. This determination was derived, in part, from the plain meaning of "unwarrantable"
("not justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected or appropriate
action"), and "negligence" (the failure to use such care as a reasonably prudent and careful
person would use, characterized by "inadvertence," "thoughtlessness~" and "inattention"). Id.
Unwarrantable failure is characterized by such conduct as '·reckless disregard," ..intentional
misconduct," "indifference" or a "serious lack of reasonable care.'· Id. at 2003-04; Rochester &
Pittsburgh Coal Corp., 13 FMSHRC 189, 193-94 (February 1991).
We agree with the judge that the Secretary did not meet his burden of proving
unwarrantable failure. l 6 FMSHRC at 1514. The Secretary again primarily relies on the trash
accumulation in the inby area. The operator's conduct in permitting that non-violative
accumulation cannot, however, support a finding of unwarrantable failure as to the violative
accumulation. Section J04 (d)( 1) expressly provides that it is the conduct of the operator in
causing the violation 't.hat is to be considered in determining unwarrantable failure. The
Commission has recognized a number of factors that are relevant to determining whether a
violation is due to an operator's unwarrantable failure. See. e.g. , Mullins and Sons Coal Co.,
Inc. , 16 FMSHRC 192, 195 (February 1994), citing Peabody Coal Co. , 14 FMSHRC 1258, 1261
(August 1992) (extensiveness of the violation, length of time that the violative condition has
existed, operator' s efforts to eliminate the violative condition. and whether operator has been
placed on notice that greater efforts are necessary for compliance) (emphasis added). These
factors are directly related to the violation. Here, the judge properly limited his consideration to
the accumulation that was violative of section 75.400.
Further, we see no error in the judge' s conclusion that no inference as to gross negligence
or unwarrantable failure could be drawn solely from one prior violation of section 75.400.
16 FMSHRC at 1514. We also find, as did the judge, that the remarks of JWR' s longwall
coordinator, James Brooks, that he did not know why the material had not been cleaned up and
that he had not had outby people for over a week, were ambiguous and do not support a finding
of aggravated conduct. Id.
As in their S&S analysis, the dissenting Commissioners would impermissibly use the
Secretary's evidence as to non-violative conduct to establish that the violative conduct here was
unwarrantable. Slip op. at 11. The rationale they set forth to explain their disagreement with this
opinion would, in effect, change the law on unwarrantable failure. Although they acknowledge
that the judge should consider "operator conduct relevant to the violation in determining if the
violation resulted from unwarrantable failure:' id. (emphasis added), they ignore that statement
as well as the language of section 104(d)( 1) of the Mine Act and the factors relevant to a
determination of unwarrantable failure set forth in Mullins, 16 FMSHRC at 195, in refusing to

512

confine consideration of JWR's conduct to the violation at issue. Moreover, FMC Wyoming
Corp., 11FMSHRC1622, 1627-28 (September 1989), relied on by the dissent for support, is
readily distinguishable. There, the Commission considered the operator's conduct in one part of
its plant in taking steps to reduce asbestos hazards while ignoring asbestos hazards in other parts
of the plant. The Commission held that, as to the violative conduct, disregard by the operator of
its asbestos policy indicated aggravated conduct. Id. at 1628.

III.
Conclusion
For the foregoing reasons, we affirm the judge's determination that JWR's violation of 30
C.F.R. § 75.400 was not significant and substantial and was not due to its unwarrantable failure.

Jo

Arlene Holen, Commissioner

513

Commissioner Riley, concurring:

I concur with the majority holding with respect to the limited issues before the
Commission. Record evidence pertinent to the violation on appeal will not support reversal of
the judge's determination. The small accumulation outby the check curtain in the No. 3 entry,
found to be violative of 30 C.F.R. § 75.400, simply cannot, by itself, justify designation as
"significant and substantial" or "unwarrantable failure."
As the majority notes, the larger accumulation inby the same check curtain is no longer at
issue in these proceedings. The Secretary failed to appeal the judge's determination that the inby
accumulation was non-violative. The Secretary now asks the Commission to cure both
deficiencies in framing the appeal and the inadequacy of applicable regulations.
As the record indicates, the inspector originally cited a large inby accumulation together
with a much smaller outby accumulation, separated only by a check curtain, which may have
rested on some of the accumulated trash, and characterized the situation as a "significant and
substantial" violatioi;i under section 104(d) of the Act. Suspecting that a large portion of the
combustible debris iii~y the check curtain of the No. 3 entry was the same trash accumulation he
had observed and cited the previous week in an active working area of the nearby No. 2 entry,
the inspector designated the accumulation on both sides of the curtain as an "unwarrantable
failure." Fortunately, as a consequence of the inspector's diligence, all trash accumulated on
both sides of the check curtain was promptly removed from the mine.
We hope responsible operators would not resort to sweeping their problems behind a
curtain separating "active workings" from inactive areas. While such a move may comply with
the letter of applicable regulations, it falls short of the spirit of the law, which is intended to
prol1ibit the accumulation of co_mbustible materials that present an avoidable risk to miners.
Whether such a scheme was at work in this case, as the inspector and the Secretary seem to
believe, is no longer a compliance issue this Commission may reach on appeal.
The only question before the Commission is whether a situation determined not to be an
offense under applicable law can be an aggravating circumstance with respect to characterization
of a related violation. I am unable to make that leap. I find it difficult to understand how a
situation allowed to go unchallenged as not offensive to worker health and safety law can
nonetheless be construed to be so at odds with <(ivil administrative order that it transforms
another, somewhat ordinary violation into a grave and aggravated threat to workers.
Notwithstanding the regulatory language, the Secretary argues that certain accumulations
outside of "active workings" should be prohibited because their proximity to areas where miners
normally work or travel presents a collateral risk, similar to the one the regulation seeks to avoid.
He asks the Commission to treat otherwise inactive areas the same as "active workings" if it can
be demonstrated they were visited by anyone at anytime. The Secretary also suggests that a

514

barrier more substantial than a ventilation curtain is needed to segregate combustible
accumulations from "active workings." The Commission appreciates that the regulation may not
fully effectuate statutory purposes. However, if the Secretary sincerely believes the regulation is
deficient, he should clarify its language through rulemaking, rather than ask the Commission to
rewrite the regulation by adjudication.

. Riley, Commissioner

515

Chairman Jordan and Commissioner Marks, dissenting:
Our colleagues correctly state that the "central issue" regarding the S&S and
unwarrantable designations of the violation is the "consideration to be given" to the
accumulations observed by the inspector inby the check curtain. Slip op. at 3. However, they
incorrectly resolve that issue by concluding that the judge properly ignored that evidence. Id.
at 4-6. We disagree and, for the reasons set forth below, we dissent.

I.
Significant and Substantial
The Secretary asserts that the judge erred by failing to consider the accumulation in
the inactive area inby the check curtain in connection with his analysis of the likelihood of an
injury resulting from the violation. Contrary to our colleagues, we agree with the Secretary's
contention. We also think that the judge erred in failing to consider evidence relevant to the
issue of whether the violation was significant and substantial ("S&S").
A. Failure to consider the accumulation inby the check curtain.
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C.
§ 814(d), and refers to more serious violations. Wyoming Fuel Co., 16 FMSHRC 1618, 1625
(August 1994). A violation is S&S if, "based on the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to by the violation
will result in an injury or illness of a reasonably serious nature." Id., citing Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825-26 (April 1981) (emphasis added). In Mathies
Coal Co., 6 FMSHRC 1 (January 1984), the Conunission explained:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard -- that is, a measure of danger to safety -- contributed to
by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
6 FMSHRC at 3-4 (footnote omitted). See also Austin Power Co. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies
formula criteria).
The judge refused to consider the accumulation inby the check curtain in his S&S
analysis. 16 FMSHRC at 1513. In determining whether a violation is S&S, however, a judge
is required to consider the particular facts surrounding the violation. National Gypsum Co., 3

516

FMSHRC at 825; Wyoming Fuel Co., 16 FMSHRC at 1625; Texasgulf, Inc., 10 FMSHRC
498, 501 (April 1988) (a detennination of whether a violation is S&S must be based on the
particular facts surrounding the violation). Our colleagues, while citing National Gypsum for
this proposition, fail to give it full effect by concluding that "the inby, non-violative
accumulation cannot support an S&S designation as to the outby, violative accumulation."
Slip op. at 4. Although the inby accumulation was not the basis of the violation -- because the
judge concluded that it was not in an active working and the Secretary did not appeal that
conclusion -- the inby accumulation abutted the violative outby accumulation and was
separated from it by merely a check curtain made of "curtain or heavy blind" material. Tr.
18-20, 34. Uncontradicted testimony established that the accumulation on both sides of the
check curtain was combustible, the materials outby the check curtain were "just [a]
continuation of everything that was in by [sic] the curtain[,]" and the miners' dinner hole area
was immediately adjacent to the curtain. Tr. 18-22, 51-52; Gov't Ex. 1. At the very least,
the extensive 250 feet of accumulation inby could have fueled a fire in the adjacent active
workings. Consideration of the environment within which the violative condition exists is
always relevant to the seriousness of the cited violation. U.S. Steel Mining Co., 6 FMSHRC
1573, 1574 (July 1984) (section 104(d)(l) specifies that a violation is to be designated S&S if
it "significantly and substantially contribute[s]" to a mine hazard in light of the "relevant
dynamics of the mining environment"). Accordingly, we conclude that the judge erred in
failing to consider the accumulation inby the check curtain in his risk analysis.
B. Failure to address relevant evidence.
The Secretary contends that the judge failed to consider the operator's history of
methane ignitions at the working face of the mine, including recent ignitions. PDR at 7. We
agree. Notwithstanding the record evidence regarding the operator's history of methane
ignitions at the face (Tr. 47, 67-68, 71), the judge's decision contains no indication that he
considered such evidence. This testimony is relevant to the S&S determination and should
have been considered.
Further, there is merit to the Secretary's contention that the judge failed to consider the
proximity of the accumulation in the No. 3 entry to the working face and that the cited
materials burned at a lower temperature than coal. PDR at 8; Tr. 51-52; Gov't Ex. 1. The
judge did not explicitly address this probative record evidence, nor is it apparent that he
considered it. These facts are relevant to the S&S detennination here and should have been
considered.
Our case law is clear that a judge must analyze and weigh the relevant testimony, make
appropriate findings, and explain the reasons for his decision. Wyoming Fuel Co., 16
FMSHRC at 1627; Mid-Continent Resources, Inc. , 16 FMSHRC 1218, 1222 (June 1994).
Because the judge failed to consider the relevant evidence, we conclude that he erred.

517

II.
Unwarrantable Failure
The Secretary asserts that the judge erred when he disregarded the extent of the nonviolative accumulation in the inactive area inby the check curtain in making his unwarrantable
failure determination. Contrary to our colleagues, we agree with the Secretary's contention.
The unwarrantable failure terminology is taken from section 104(d) of the Mine Act
and refers to more serious conduct by an operator in connection with a violation. Wyoming
Fuel Co., 16 FMSHRC at 1627. Unwarrantable failure is aggravated conduct constituting
more than mere negligence, such as reckless disregard, intentional misconduct, indifference or
serious lack of reasonable care. Id. Further, the Commission has recognized that a number of
factors are relevant in determining whether a violation is the result of an operator's
unwarrantable failure, such as the extensiveness of the violation, the length of time that the
violative condition has existed, the operator's efforts to eliminate the violative condition, and
whether an operator has been placed on notice that greater efforts are necessary for
compliance. See, e.g., Mullins and Sons Coal Co., 16 FMSHRC 192, 195 (February 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992).
We disagree with our colleagues' conclusion that the operator's conduct in permitting
the non-violative accumulation cannot support an unwarrantable finding in connection with the
violative accumulation. See slip op. at 5-6. The Commission has stated that in resolving
unwarrantable failure questions, the operator's total conduct in relation to a violation must be
examined. The Helen Mining Co., 10 FMSHRC 1672, 1676 n.4 (December 1988), citing
Emery Mining Corp., 9 FMSHRC 1997 (December 1987); see also FMC Wyoming Corp., 11
FMSHRC 1622, 1627-28 (September 1989) (evidence of nonviolative conduct in another area
of a plant is relevant to an unwarrantable failure determination) . Further, a judge may
consider past violations in determining whether a current violation is the result of
unwarrantable failure. Peabody Coal Co. , 14 FMSHRC at 1263-64. Thus, a judge should
consider all operator conduct relevant to the violation in determining if the violation resulted
from unwarrantable failure.
Accordingly, we conclude that the judge erred in failing to consider the adjacent, nonviolative accumulation in making his unwarrantable failure determination.

518

III.
Conclusion
For the foregoing reasons, we would vacate the judge's holdings that the violative
condition was not S&S and not a result of the operator's unwarrantable failure and remand

those issues to the judge for reconsideration.

519

Distribution

Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

J. Alan Truitt, Esq.
Maynard, Cooper & Gale, P.C.
2400 AmSouth/Harbert Plaza
1901 Si>cth Avenue North
Birmingham, AL 35203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike" Suite 1000
Falls Church, VA 2204 1

520

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

April 22, 1996

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

Docket No. PENN 93-15

v.
L&J ENERGY COMPANY, INC.

DIRECTION FOR REVIEW
ORDER
The petition for discretionary review, filed by L&J Energy Company, Inc. is granted on
the issue of the operator's ability to continue in business. This matter is remanded to the judge
for appropriate proceedings on this issue.
In all other respects the petition is denied.

Arlene Holen, Commissioner

..

es C. Riley, Commissioner

521

Distribution

Robert G. Spencer, President
L & J Energy Company, Inc.
P.O. Box247
Barnesboro, PA 15714
Linda M. Henry, Esq.
Office of the Solicitor
U.S. Department of Labor
Gateway Bldg., Rm. 14480
3535 Market St.
Philadelphia, PA 191 04
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

522

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

April 22, 1996

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

V.

PENN 95-382-R
PENN 95-383-R

RNS SERVICES, INC.

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

DECISION
BY: Jordan. Chairman; Holen, Marks and Riley, Commissioners
This consolidated contest proceeding, arising under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involves the validity of two
citations issued to RNS Services, Inc. ("RNS") by the Secretary of Labor's Mine Safety and
Health Administration ("MSHA") alleging violations of 30 C.F.R. §§ 77.1713(c) and 77. l 000
( 1995)1 at RNS' s No. 15 coal refuse pile. The question before us is whether the No. 15 pile is a
"mine'' under the Mine Act. Administrative Law Judge Avram Weisberger vacated the citations.
17 FMSHRC 1284 (July 1995) (ALJ). He concluded that RNS was not engaged in "the work of
preparing coal" and that consequently the Mine Act did not apply to the activities of RNS at the
site. 17 FMSHRC at 1288, 1290. The Commission granted the Secretary's petition for
discretionary review on the jurisdictional issue. For the reasons discussed below, we reverse.

I.

Factual and Procedural Background
The RNS No. 15 coal refuse pile, in Barr Township, Pennsylvania, occupies part of the
site of the abandoned Lancashire No. 15 and No. 24-B underground coal mines and adjacent coal

1

Section 1713(c) requires recording the results of the daily inspection of a surface coal
mine in an approved record book; section 77 .1000 requires the operator of a surface mine to
establish and follow a ground control plan. 30 C.F.R. §§ 77.1713(c) and 77.1000.

523

preparation plant. Tr.17-21; 17FMSHRCat 1285. RNSpurchasedthesiteinJanuary 1995
from the Lancashire Coal Co. 17 FMSHRC at 1285. The No. 15 pile was created between 1914
and the mid 1940s and was abandoned in the 1960s. Tr. 25, 146-49; Resp't Ex. 5. When the
mines were active, coal was cleaned, screened, washed and broken at an adjacent preparation
plant. Tr. 21; 17 FMSHRC at 1285. The prepared product was marketed as metallurgical coal
that generally had a value of 13,000 to 14,000 BTUs. Id. Refuse material from the preparation
plant was deposited on several adjacent refuse piles, including the No. 15 pile. Id. 2
Since May 1995, RNS has operated the site pursuant to a "No Cost Government Financed
Reclamation Contract" between RNS and the Commonwealth of Pennsylvania. Resp't Ex. 6; Tr.
25-26. In exchange for receiving the coal refuse at no cost, RNS is required by the contract to
remove the refuse and reclaim the site at no cost to the state. 17 FMSHRC at 1286; Resp't Ex. 6.
p.5. The contract states that RNS is not authorized "to remove or mine coal" from the pile, and
that "the material to be removed ... is coal refuse as defined at 25 Pennsylvania Code § 90. l and
is not bituminous or anthracite coal." Resp't Ex. 6, p.4. Pursuant to a long-term contract with
Cambria Co-Gen Co .. RNS hauls the coal refuse to the Cambria co-generation facility in
Ebensburg, Pennsylvania, which is operated by Air Products and Chemicals, Inc. 17 FMSHRC
at 1285; Tr. 45, 155 ~~6. The Cambria co-generation facility generates energy in the fom1 of
electricity and steam.\ 17 FMSHRC at 1285. The contract price for the coal refuse is a flat fee
and is not based on the amount delivered to Cambria. Id.
The coal refuse pile is 1,200 feet long, 500 feet wide and 90 feet high. 17 FMSHRC at
1285: Tr. 177. Large rocks are removed from the pile by a hydraulic excavator, Tr. 182, which
also scoops the refuse and loads it into haul trucks. Tr. 70, 153. Prior to loading, RNS also uses
a water truck and, occasionally, a bulldozer and backhoe. 17 FMSHRC at 1286; Tr. 153. Haul
trucks from the No. 15 site transport coal refuse to a hopper at the Cambria plant, where it is first
blended with refuse from other RNS piles in order to achieve a product with the appropriate
sulphur content for burning at Cambria, and then is broken, screened and sized. Tr. 46-5 I; 1697 I.3 Unsuitable material is stockpiled and ultimately transported to the RNS Lancashire No. 25
dump site, while usable material is stored and ultimately burned at Cambria. 17 FMSHRC at
1285. Tr. 46-51. The average content of the material in the refuse pile as tested by RNS is about
7000 BTUs after processing. Tr. 165-66. MSHA has jurisdiction over operations at the Cambria
facility. Air Products & Chemicals, Inc., 15 FMSHRC 2428 (December 1993), ajf'd mem., 37
F.3d 1485 (3d Cir. 1994).

2

The preparation plant ceased operation prior to I 968 and was probably dismantled
between 1971 and 1973. 17 FMSHRC at 1285; Resp't Ex. 5.
3

Cambria uses only coal refuse from RNS sites. Tr. 51-54.

524

MSHA had material from the pile tested; the results indicated that the refuse has the
characteristics of coal. 17 FMSHRC at 1286; Tr. 122-25; Gov't Ex. 19. Neil Hedrick, the
president of RNS, testified that the refuse contains "particles of coal." Tr. 172.

On June 16, 1995, upon an inspection of the No. 15 coal refuse pile, MSHA Inspector
Gerry L. Boring issued Citations Nos. 3713378 and 37 133 79 alleging violations of sections
77.1713(c)and77.IOO,respectively. Gov'tExs. 17, 18; 17FMSHRCat 1286. RNSdidnot
dispute the factual assertions contained in the citations and agreed that it violated the cited
standards. but challenged MSHA' s jurisdiction over the No. 15 site. 17 FMSHRC at 1286. The
judge held that the No. 15 site does not fall under the definition of "coal or other mine"
contained in section 3(h)(I) of the Act, 30 U.S.C. § 802(h){l);~ because ..the work of preparing
coal" as defined in section 3(i), 30 U.S.C. § 802(i),5 did not take place at that location. 17
FMSHRC at 1288. 1290. The judge stated:

4

Section 3(h)( I) of the Mine Act states in part:
"coal or other mine" means (A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings, structures,
facilities, equipment, machines, tools, or other property including
impoundments, retention dams, and tailings ponds, on the surface
or underground, used in, or to be used in, or resulting from, the
work of extracting such minerals from their natural deposits in
nonliquid form, or if in liquid form, with workers underground, or
used in, or to be used in, the milling of such minerals, or the work
of preparing coal or other minerals, and includes custom coal
preparation facilities.

30 U.S.C. § 802(h)(l).
5

Section 3(i) of the Mine Act states:
"work of preparing the coal" means [ 1] the breaking, crushing,
sizing, cleaning, washing, drying, mixing, storing and loading of
bituminous coal, lignite, or anthracite, and [2] such other work of
preparing such coal as is usually done by the operator of the coal
·
mine[.]

30 u.s.c. § 802(i).

525

[W]ith the exception of the removal of coal, none of the activities
set forth in Section 3(h)(2)(i) [sic] of the Act are performed at the
site. The sole activities performed at the site, those of the removal
of material by a hydraulic excavator, the loading of the material on
trucks, and the transporting of material to the Cambria facility are
not activities set for [sic] in section 3(h)(2)(i) [sic).

Id. at 1288. The judge sustained the contests and dismissed the citations. 17 FMSHRC at 1290.6

II.
Disposition
The Secretary contends that the judge erred in concluding that RNS was not engaged in
the work of preparing coal. S. Br. at 4-9. He asserts that the judge erred in determining that
" loading" was not an activity covered by the definition of "work of preparing the coal" contained
in section 3(i). Id. at 6-7. The Secretary further argues that the separation of large rocks from
the coal refuse befor~'loading constitutes "sizing" and "cleaning," activities also listed in section
3(i). S. Br. at 7. He contends that the judge's decision is at variance with Commission and court
precedent holding that the transportation and loading of coal and coal refuse constitute the type
of work usually performed by a mine operators, and therefore satisfy the definition of "work of
preparing the coal." S. Br. at 7-9.
RNS argues that a two-part test applies to the jurisdictional question: whether the
operator performs any of the coal preparation activities listed in section 3(i), and whether such
preparation work is usually performed by a coal mine operator. R. Br. at 9-10. RNS contends

6

The judge also concluded that the No. 15 refuse pile does not constitute a "coal or other
mine" because it is not "lands ... structures, facilities ... or other property ... used in or
resulting from the work of extracting such minerals from their natural deposits in non-liquid
form." Id. at 1288-90, quoting 30 U.S.C. § 802(h)(l). Relying on Lancashire Coal Co. v.
Secretary of Labor, 968 F.2d 388 (3d Cir. 1992), the judge noted that the definition of "coal or
other mine" in the context of coal extraction from its natural deposit encompasses lands
"resulting from" such activity, and is therefore broader than the definition of "coal or other mine"
in the context of coal preparation, which does not contain the "resulting from" language. 17
FMSHRC at 1289. The Secretary challenged this conclusion in his Petition for Discretionary
Review (PDR at 9-11 ), but did not argue the point in his brief The Commission need not
address this argument because the Secretary has abandoned it. See Asarco Mining Co., 15
FMSHRC 1303, 1304 n.3 (July 1993).

526

that it is not engaged in the "work of preparing the coal" at the No. 15 site because the pile
contains "coal waste" rather than "coal." R. Br. at 10-11. RNS further asserts that, because it
engages only in "loading" and transporting, this case is distinguishable from ·cases where the
Commission has upheld Mine Act jurisdiction over coal refuse processing. R. Br. at 11-14.
RNS maintains that the use of the hydraulic excavator to remove large rocks from the coal waste
does not constitute "sizing" or "cleaning," that transporting material is not one of the elements of
coal preparation listed in section 3(i), and that "loading" by itself is not adequate to justify
MSHA jurisdiction. Id.
Section 4 of the Mine Act provides that "[e]ach coal or other mine, the products of which
enter commerce, or the operations or products of which affect commerce, ... shall be subject to
the provisions of this Act." 30 U.S.C. § 803. Under section 3(h)(1) of the Mine Act, "coal or
other mine" includes "lands, ... structures, facilities. equipment, machines, tools, or other
property ... used in, or to be used in, ... the work of preparing coal . . .. " 30 U.S.C. §
802(h)(l ). Section 3(i) of the Mine Act defines "work of preparing the coal'' to include "[1]
sizing, cleaning ... and loading of bituminous coal, lignite, or anthracite, and [2] such other
work of preparing such coal as is usually done by the operator of the coal mine." 30 U.S.C. §
802(i).
The definitions of coal mine and coal preparation in sections 3(h) and 3(i) are "broad[,)"
"sweeping'' and "expansive[,]" Marshall v. Stoudt 's Ferry Preparution Co., 602 F.2d 589, 59192 (3d Cir. 1979), cert. denied, 444 U.S. 1015 ( 1980). Congress intended that "doubts be
resolved in favor of inclusion of a facility within the coverage of the Act." S. Rep. No. 181. 95th
Cong., 1st Sess. 14 ( 1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal Mine Safety and Health Act
<l 1977, at 602 (1978).
In finding that "none of the activities set forth in Section 3(h)(2)(i) [sic] of the Act are
performed at the site," the judge concluded that "sizing" and "cleaning" of coal within the
meaning of section 3(i) are not being done at the No. 15 site. Substantial evidence supports the
judge ·s conclusion. 7 "Sizing" consists of "(t)he process of separating mixed particles into
groups of particles all of the same size, or into groups in which all particles range between
definite maximum and minimum sizes." U.S. Dep't of the Interior, Dictionary of Mining,

7

The Commission is bound by the substantial evidence test when reviewing an administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). We are
guided by the settled principle that, in reviewing the whole record, an appellate tribunal must
also consider anything in the record that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

527

Mineral and Related Terms 1020 (1968). "Cleaning, dry" is defined as "[t]he mechanical
separation of impurities from coal by methods which avoid the use of a liquid." Id. at 216. The
limited activities of the excavator in excluding large rocks from the haul trucks support the
judge's conclusion that RNS is not engaged in "sizing" or "cleaning" at the No. 15 site. 8
We tum next to the question of whether the few activities that do take place at the No. 15
pile are sufficient to bring that site under the jurisdiction of the Mine Act. In Pennsylvania
Electric Co. v. FMSHRC, 969 F.2d 1501 (3d Cir. 1992) ("Penelec"), aff'g 11FMSHRC1875
(October 1989), the sole issue was whether Mine Act jurisdiction attached to the head drives of
conveyors transporting coal to an electric power plant for processing. The court held that
"[u]nder the functional analysis we are to employ when giving the 'broadest possible' scope to
Mine Act coverage, ... the delivery of coal from a mine to a processing station via a conveyor
constitutes coal preparation 'usually done by the operator of a coal mine."' Id. at 1503 (citations
omitted).
The functional analysis of Penelec was adopted by the court in United Energy Services v.
MSHA, 35 F.3d 971 (4th Cir. 1994). In United Energy, coal waste from a refuse pile at a
working mine was transported via conveyors to an adjacent electric power plant where it was
sized, crushed, and ultimately burned for fuel. 35 F.3d at 973. As in Penelec, the court in United
Energy dealt with the issue of whether the coal transportation equipment fell under MSHA
jurisdiction. The Fourth Circuit stated that the operator's activities "involve the transportation of
coal to the preparation facility and thus are part of the ' work of preparing coal."' Id. at 975.
Citing Penelec, the court upheld the Commission judge's decision sustaining MSHA' s jurisdiction. Id.
Because we decline RNS's urging that Penelec be "rejected," see R. Br. at 10 n.9, we
reverse the judge's determination that MSHA Jacks jurisdiction over the No. 15 site. The judge
erred in concluding that loading is not one of the coal preparation activities listed in section 3(i).
Further, in both Penelec and United Energy, the courts of appeals held that the transportation of
coal or coal waste, by itself, is sufficient to trigger Mine Act jurisdiction, despite the fact that
"transporting" is not one of the activities listed in the first clause of section 3(i). Under the

8

The Secretary also argues that the use of a 4 inch grizzly to separate timbers from coal
refuse constitutes '"sizing,' ' cleaning,' or 'other work of preparing ... coal' ...." S. Br. at 7
(footnote omitted). As RNS points out, however', the judge's finding that a 4 inch grizzly was
used at the No. 15 site, 17 FMSHRC at 1286, is not supported by substantial evidence. R. Br. at
13. The only record evidence on this point is the testimony ofMSHA supervisory inspector
Biesinger that the contract between RNS and the Commonwealth of Pennsylvania permits the
use of a grizzly. Tr. 36-37. The contract does not address use of a grizzly, the photographic
evidence does not show the presence of a grizi:ly at the No. 15 site, and the testimony describing
RNS's activities at the No. 15 site does not include use of a grizzly. Resp't Ex. 6; Gov't Exs. 514; Tr. 40-45.

528

functional analysis of Penelec, "each of the activities listed in section 3(i) ... subjects anyone
performing that activity to the jurisdiction of the Mine Act, if MSHA has promulgated a
regulation governing the working conditions at issue." Air Products, 15 FMSHRC at 2435
(Commissioner Doyle: concurring) (citation omitted) (emphasis supplied). We therefore
conclude that the judge erred in determining that transportation of coal is not included in the
definition of the "work of preparing coal."
We also reject RNS's argument that section 3(i) has not been satisfied because the No. 15
pile contains only " coal refuse" and not "bituminous coal, lignite or anthracite" specified in
section 3(i). See R. Br. at 10-11. RNS concedes that the pile contains ''coal 'particles'" but
contends that under the contract between RNS and the Commonwealth of Pennsylvania, the
material is not considered "coal." R. Br. at 11. The judge, however, did not rely on this
distinction and specifically found that the coal refuse has "the characteristics of coal.'' 17
FMSHRC at 1286. Moreover, the Commission and courts have not read into section 3(i) a
requirement that the processed material consist only of run-of-mine coal. The processing of
refuse and other material containing small amounts of coal has been held to constitute the "work
of preparing coal." E.g.. United Energy, 35 F.3d at 975 (transportation of coal waste constitutes
"work of preparing coal"); Marshall v. Stoudt 's Ferry, 602 F.2d at 592 ("process of separating
from the dredged refuse a burnable product 'akin' to coal, which is then sold as a low-grade fuel,
brings the company within the Act's coverage ... ." );see also Alexander Bros. , 4 FMSHRC 541,
544-45 (April 1982) (rejecting argument that "work of preparing coal" under Coal Act did not
include processing "refuse 'which happens to contain a small amount of coal'").
We note that tbe loading and hauling of coal waste as performed at the No. 15 site are de
minimis activities for purposes of determining MSHA jurisdiction. Contrary to the statement of
the Secretary at oral argument (Oral Arg. Tr. at 39 (March 14, 1996)), if MSHA has jurisdiction
over coal refuse piles, it may not waive it. "Under the Mine Act, enforcement is not left to
MSHA 's discretion. Section I 03(a) requires the agency to inspect all surface mines in their
entirety at least twice each year." Air Products> 15 FMSHRC at 2435 n.2 (Commissioner Doyle,
concurring) (emphasis added); see also id. at 2438 (Commissioner Holen, dissenting). To the
extent the Secretary has discretion in his exercise of Mine Act jurisdiction, that discretion applies
to mineral milling (30 U.S.C. § 802(h)(l)), not to coal preparation activities.9

9

Commissioner Holen questions the wisdom of MSHA' s expenditure of scarce
government resources to inspect a pile of coal waste that has lain dormant for decades where the
only activities are loading and hauling to a power plant for further processing.

529

III.
Conclusion
For the foregoing reasons, pursuant to Penelec, we reverse the judge's determination as to
jurisdiction. Accordingly, the citations are affirmed.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

es C. Riley, Commissioner

530

Commissioner Doyle, concurring:
I concur with my colleagues in finding that the work performed by RNS Services, Inc. in
loading and transporting material from its No. 15 refuse pile falls within the jurisdiction of the
Mine Act solely because I am constrained to so find by the opinion of the United States Court of
Appeals for the Third Circuit in Pennsylvania Elec. Co. v. FMSHRC, 969 F.2d 1501, 1503-04
(3d Cir. 1992), afj'g 11FMSHRC1875 (October 1989).
I also agree with my colleagues that, if MSHA has jurisdiction over coal refuse piles, it
may not waive it. It is required by section 103(a) of the Mine Act, 30 U.S.C. § 813(a), to inspect
those coal refuse piles at least twice each year. Slip op. at 8.

531

Distribution

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
R. Henry Moore, Esq.
Buchanan Ingersoll
301 Grant Street, 20th Floor
Pittsburgh, PA I 5219-1410

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 2?041

532

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

April 24, 1996
MORTON INTERNATIONAL, INC.,
MORTON SALT
v.

Docket Nos. CENT 93-237-RM
CENT 93-259-M
CENT 94-49-RM

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

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners
DECISION
BY: Doyle, Holen and Riley, Commissioners
This consolidated contest and civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), presents
the issue of whether 30 C.F.R. §§ 57.22232 and 57.22235(a) (1995) apply to abandoned areas.
Administrative Law Judge Gary Melick determined that they do not and vacated two citations
that alleged violations of the standards, issued to Morton International, Inc., Morton Salt
("Morton"). 16 FMSHRC 417 (February 1994) (ALJ). For the reasons that follow, we affirm
the judge's decision.

I.
Factual and Procedural Background
Morton operates the Weeks Island Mine, a domal salt mine in Weeks Island, Louisiana,
which has been classified by the Department of Labor's Mine Safety and Health Administration
("MSHA") as a Subcategory II-A mine, i.e., a "domal salt [mine] where an outburst ... has
occurred." 1 J. Ex. 1, Stips. 1, 7; 30 C.F.R. § 57.220.03(a)(2)(i).

1

An outburst is a "sudden, violent release of solids and high-pressure occluded gases,
including methane." 30 C.F.R. § 57.22002. Methane outburst cavities "can range in size from
small baseball sized roof cavities, to large roof cavities shaped like inverted cones." J. Ex. 1,
Stip. 19.

533

On August 12, 1989, the mine experienced a methane outburst in the 10 EWN heading.

J. Ex. 1, Stip. 18. Approximately three months later, after the outburst materials had been
removed and the area had been ventilated, Morton abandoned the 10 EWN ·heading and
constructed a berm across the entrance to prohibit entry. J. Ex. 1, Stip. 18; Tr. 69, 78-80. The
berm extended from rib to rib and was approximately 8-9 feet in height and 12 feet in width at its
base. Tr. 78; Lara depo. at 52.
On June 15, 1993, during an inspection, MSHA Inspector Benny Lara climbed to the top
of the berm and took a methane reading that indicated the presence of 1% methane. J. Ex. 1,
Stip. 8. An extension pole was then used to obtain methane readings at approximately 24 feet.
Lara depo. at 20, 22-23, 43-44; Citation No. 3897764. As the pole was extended, the methane
readings increased to 3.25%, at which time the methane detector was turned off. J. Ex. 1, Stip. 8.
There were no ignition sources, personnel, or equipment in the area. J. Ex. 1, Stips. 26, 27, 4 7.
The inspector issued a citation alleging a violation of section 57.22235(a). 2
On June 22, 1993, after the area was ventilated and MSHA Inspector Joseph Olivier
obtained a methane reading of 0.1 % at the top of the berm, the citation was terminated. J. Ex. 1,
Stip. 10. To abate the citation, miners had entered the abandoned area, conducted scaling, and
installed a diesel gen.erator to ventilate the area. J. Ex. 1, Stip. 11.
Morton challenged the citation and the matter was heard by Judge Melick. During the
hearing, the parties agreed that, based upon the same facts, an additional citation, alleging a
violation of section 57.22232,3 would be issued to Morton in order to avoid repetition in a
subsequent proceeding to determine the requirements of section 57.22232. Tr. 18-19; M. Br. at

2

30 C.F.R. § 57.22235 is entitled "Actions at 1.0 percent methane (I-C, II-A, II-B, and
IV mines)" and subsection (a) provides:

If methane reaches 1.0 percent in the mine atmosphere, all persons other than
competent persons necessary to make ventilation changes shall be withdrawn
from affected areas until methane is reduced to less than 0.5 percent.
3

30 C.F.R. § 57.22232, entitled "Actions at 0.5 percent methane (I-B, II-A, II-B, IV,
V-B, and VI mines)," provides:

If methane reaches 0.5 percent in the mine atmosphere, ventilation
changes shall be made to reduce the level of methane. Until methane is reduced
to less than 0.5 percent, electrical power shall be deenergized in affected areas,
except power to monitoring equipment determined by MSHA to be intrinsically
safe under 30 C.F.R. Part 18. Diesel equipment shall be shut off or inunediately
removed from the area and no other work shall be permitted in affected areas.

534

2-3. On November 23, 1993, MSHA issued that citation, which Morton contested, and the cases
were consolidated. M. Br. at 3.
Before the judge, Morton argued that the cited standards were not intended to apply to
abandoned areas of mines and that the Secretary's interpretation is inconsistent with the language
of the regulations and plainly erroneous. 16 FMSHRC at 419. The Secretary argued that the
term "mine atmosphere" referenced in the standards does not distinguish between active and
abandoned areas in setting forth the locations where methane readings are to be taken. Id.
The judge determined that the Secretary's interpretation as to applicability of sections
57.22232 and 57.22235(a), requiring operators to take action if excessive methane were detected
in any part of the "mine atmosphere" including abandoned areas, was not of controlling weight
because it was inconsistent with the standards and plainly erroneous. Id. The judge concluded
that the definition of "mine atmosphere" refers only to active areas. Id. at 420. He noted that all
the corrective actions required by sections 57.22232 and 57.22235(a), except ventilation changes,
are relevant only to active areas and "are meaningless in abandoned areas where work and travel
have already been prohibited." Id He also noted that the regulations in fact permit unsealed
abandoned areas to exist in Subcategory II-A mines, do not specifically require that such areas be
tested for methane or ventilated, and that the regulations require ventilation of unsealed
abandoned areas only in Subcategory III mines. Id. The judge concluded that, because other
regulations set forth specific locations for methane testing and ventilation that do not include
unsealed, abandoned areas in Subcategory II-A mines, such requirements were intentionally
omitted as to these locations. Id. at 420-21. The judge also found that the Secretary's
interpretation was inconsistent with pertinent regulatory history and prior enforcement history.
Id at 421-22. Accordingly, the judge concluded that the standards do not apply to abandoned
areas and vacated the citations. Id. at 423.
The Commission granted the Secretary's petition for review of the judge's decision and
heard oral argument.
II.

Disposition
The Secretary argues that sections 57.22232 and 57.22235(a) are clear on their face to the
effect that they apply to all unsealed parts of a min~ and that the existence of excessive methane
gives rise to violation of these regulations. S. Br. at 4-7; Oral Arg. Tr. at 7, 14- 15. He asserts, in
the alternative, that, if the standards are ambiguous, his interpretation is reasonable and entitled
to deference. S. Br. at 8-9. Morton argues that the standards do not apply to abandoned areas

535

and that the judge correctly rejected the Secretary's interpretation.4 M. Br. at 1-2. It also argues
that the standards give no notice of applicability to abandoned areas. Oral Arg. Tr. at 44-45.
Section 57.22232 is entitled "Actions at 0.5 percent methane (I-B, II-A, II-B, IV, V-B,
and VI mines)" and provides that, if methane in the mine atmosphere reaches that level,
ventilation changes shall be made and, until methane is reduced below that level, electrical power
shall be deenergized in the affected areas, diesel equipment shall be shut off or removed, and no
other work shall be permitted in the area. Section 57.22235 is entitled "Actions at 1.0 percent
methane (1-C, II-A, II-B, and IV mines)" and section (a) provides that, if methane in the mine
atmosphere reaches that level, all persons except those necessary to make ventilation changes
shall be removed from the affected area until methane is reduced below 0.5%.
We conclude that the language of both standards is clear as to the actions that must be
taken if methane reaches specified levels. We do not, however, find that the standards clearly
apply to abandoned areas or clearly provide that the existence of methane at the stated levels, in
itself, gives rise to a violation. Consequently, we must determine whether the Secretary's
interpretation of the regulations is a reasonable one and whether the operator had notice of that
interpretation.
The judge found that the Secretary's construction of the standards' applicability to
abandoned areas is inconsistent with the scheme of Mine Act regulations pertaining to gassy
metal and nonmetal mines. 16 FMSHRC at 420. The Secretary argues that the judge erred in
comparing the standards in issue with other regulations because these standards are performance
standards. S. Br. at 14.5 We reject the Secretary's argument. It is well established that
regulations should be read as a whole, giving comprehensive, harmonious meaning to all
provisions. See 2 Am. Jur. 2d "Administrative Law"§ 239 (2d ed. 1994); McCuin v. Secretary
of Health and Human Services, 817 F.2d 161, 168 (1st Cir. 1987). The judge appropriately
considered other regulations relating to methane testing and ventilation in determining whether
the Secretary's interpretation was reasonable.

4

Morton argues that the Secretary, by excluding sealed areas from his interpretation of
"mine atmosphere," has improperly departed from his position before the judge that the term
encompassed "any point in any mine [more than a foot away from the roof, face, back or floor]."
M. Br. at 21. The Secretary's definition excluding sealed areas is implicit in his position before
the judge; thus, it may properly be considered by the Commission. See Beech Fork Processing,
Inc., 14 FMSHRC 1316, 1321 (August 1992) (citations omitted).
5

Morton argues that the Commission may not consider the Secretary's argument because
it was raised for the first time on review. M. Br. at 14. The Secretary could not have raised this
argument before the judge because it pertains to the legal analysis set forth in the judge's
decision; thus, we may address it.

5 36

The Secretary's interpretation of the standards to the effect that an operator is required to
test for methane in unsealed abandoned areas of Subcategory II-A mines and also to ventilate
such areas is inconsistent with the regulatory scheme the Secretary has promulgated under the
Mine Act. See Local Union 1261 v. Federal Mine Safety and Health Review Comm 'n, 917 F.2d
42, 45 (D.C. Cir. 1990). The standards applicable to Subcategory II-A mines, which set forth
specific and extensive testing and ventilation requirements such as testing in active workings in
the event of a main ventilation failure (30 C.F.R. § 57.22206) and maintaining air flow across
working faces sufficient to carry away methane accumulations (30 C.F.R.§ 57.22212), do not
require the testing of abandoned areas or their ventilation. In contrast, Subcategory III mines are
specifically required to ventilate unsealed abandoned areas (30 C.F.R. § 57.22223). Further, 30
C.F .R. § 57.22220 requires the testing of air after it has passed by or through unsealed
abandoned areas of Subcategory II-A mines and, if it contains 0.25% or more methane, it must
be tested daily and coursed directly to a return airway. The preshift examination standard for
Subcategory II-A mines requires that the mine atmosphere be tested for methane at "all work
places," at "each active working face," and at "each face blasted" (30 C.F.R. § 57.22228(b), (c),
& (d)), but makes no mention of abandoned areas. Likewise, the weekly testing standard for
Subcategory II-A mines requires that the mine atmosphere be tested for methane at specific
locations: active mining faces, main returns, returns from idle workings, returns from abandoned
workings, and at seals (30 C.F.R. § 57.22230(a)); that standard as well contains no requirement
that abandoned areas themselves be tested.
Immediately following these testing standards are those setting forth the actions to be
taken if methane in the mine atmosphere reaches certain levels. "Just as a single word cannot be
read in isolation, nor can a single provision of a statute." Smith v. United States, 508 U.S. 223,
233 (1993). Giving comprehensive, harmonious meaning to these provisions, we cannot
conclude that the Secretary's interpretations of sections 57.22232 and 57.22235(a) to apply to
abandoned areas, which are not required to be tested, is a reasonable one. Further, as the judge
recognized, in abandoned areas, there are no miners to be withdrawn, no electrical power to be
deenergized, no diesel equipment to be turned off or removed, and there is no "other work" being
done. 6 16 FMSHRC at 420. We conclude that, when read in this context, the standards cannot
reasonably be interpreted to include abandoned areas of the mine.

6

The Secretary argues that, because the "affected areas" requiring corrective action may
be working sections adjacent to an abandoned area, ,the judge erred in concluding that the
standards could apply only to active workings. S. Br. at 17-18. We reject the Secretary' s
argument. Clearly, the cited standards apply in the event excessive methane is found in an active
area. There is no evidence that this was the case here; rather, the evidence is to the contrary.
Inspector Lara took numerous methane readings along the perimeter roadway directly adjacent to
the berm, which was an active area and was ventilated. J. Ex. 1, Stip. 17, 23. He obtained
readings below 0.5% at all locations along the perimeter roadway and at all other locations where
measurements were taken. J. Ex. 1, Stips. 22, 24.

537

In addition, the Secretary's interpretation of the standards in this litigation is, as the judge
found, inconsistent with regulatory history. It is also inconsistent with statements published by
the Secretary in rulemak.ing. For nearly 20 years, 30 C.F .R. Part 57 contained a requirement that
"[a]bandoned areas shall be sealed or ventilated." 30 C.F.R. § 57.21-43 (1969) (See 34 Fed. Reg.
12517, 12527 (July 31, 1969)).7 MSHA's 1985 proposed rules revising standards for gassy
metal and nonmetal mines repeated this requirement in proposed section 57.34214, applicable to
Subcategory II-A mines. 50 Fed. Reg. 23612, 23644 (June 4, 1985). In publishing the final
rules, however, MSHA deleted this section, explaining: "This standard, which provided safety
protection from potential methane emissions in abandoned areas, is duplicative of the
requirements and protection afforded by existing§ 57.8528." 52 Fed. Reg. 24924, 24926 (July
I, 1987). Thus, MSHA expressly declined to promulgate as to Subcategory II-A mines the
proposed standard, which would have continued a longstanding requirement that operators
ventilate unsealed abandoned areas. As the judge noted, the Secretary is now essentially
attempting to enforce a provision that he proposed but rejected. 14 FMSHRC at 422. At oral
argument, counsel for the Secretary argued that the deletion of proposed section 57.34214 had
been in error because the requirements of section 57.8528 and proposed section 57.34214 were
not, in fact, duplicative. Oral Arg. Tr. at 15. It is generally recognized, however, that the
consideration and r~jection of a proposed provision demonstrates an intent to exclude the
requirement. 2A Norman J. Singer, Sutherland Stat. Constr. §§ 48.04, 48.18 (5th ed. 1992).
Nor are we persuaded by the Secretary's assertion that the interpretation of the standards
he proffers is the only interpretation that promotes safety. Oral Arg. Tr. at 18. As the judge
found, the Secretary' s interpretation would require miners "to enter the dangerous environment
of abandoned areas" in order to ventilate them. 16 FMSHRC at 420. Further, as a result of the
Secretary's interpretation, an ignition source, a diesel generator, was required in an area where
previously there had been no ignition sources. J. Ex. 1, Stips. 27, 43(i), 430). Thus, it is not
evident that the Secretary's interpretation did, in fact, result in increased safety. We note,
moreover, that the Secretary designated the alleged violations as non-S&S and stipulated that the
hazard resulting from the original cited violation was "quite low." J. Ex. 1, Stips. 9, 45.
We agree with the judge that the Secretary's interpretation as to the applicability of
sections 57.22232 and 57.22235(a) to unsealed abandoned areas is not reasonable because it is
not in harmony with other regulations the Secretary has promulgated under the Mine Act and is
inconsistent with the regulatory history.
As to the Secretary's assertion that the ~xistence of methane above certain levels is itself
violative, we have noted that the standards do not expressly provide that methane at the

7

Section 57.21-43 was later recodified as section 57.21043. See 50 Fed. Reg. 4032,
4124 (January 29, 1985).

538

referenced levels gives rise to a violation. 8 Nor do they even suggest that to be the case. Rather,
the language of the standards contemplates that methane may reach the referenced levels by
specifying actions to be taken ifthat occurs. We conclude that the Secretary's interpretation of
the standards to the effect that they are violated by the presence of methane itself is unreasonable
because the standards cannot bear the meaning that the Secretary assigns to them. See Secretary
ofLabor v. Western Fuels-Utah, Inc., 900 F.2d 318, 324 (D.C. Cir. 1990) (Edwards, J.,
dissenting).
Moreover, due process requires that a regulation give "fair warning of the conduct it
prohibits or requires." Energy West Mining Co., 17 FMSHRC 1313, 1317 (August 1995),
quoting Gates & Fox Co. v. Occupational Safety and Health Review Comm 'n, 790 F.2d 154, 156
(D.C. Cir. 1986). A regulation cannot be construed "to mean what an agency intended but did
not adequately express."9 Phelps Dodge Corp. v. Federal Mine Safety and Health Review
Comm 'n, 681 F .2d 1189, 1193 (9th Cir. 1982), quoting Diamond Roofing Co. v. Occupational
Safety and Health Review Comm 'n, 528 F.2d 645, 649 (5th Cir. 1976). Accord General Electric
Co. v. EPA, 53 F.3d 1324, 1328 (D.C. Cir. 1995); Western Fuels, 900 F.2d at 326 (Edwards, J.,
dissenting). The Secretary maintains that the industry was placed on notice by the regulatory
history that the deleted rule was intended to remain in effect and that the cited standards apply to
all areas of amine. Oral Arg. Tr. at 15-16.
Even if we were to conclude that the Secretary's interpretation of the standards in issue is
reasonable and, thus, that the standards apply to abandoned areas, we disagree that operators
have received adequate notice of it. The Secretary has published no information bulletin or
interpretive memorandum setting forth his interpretation of the standards. Oral Arg. Tr. at 18-19.
We reject the Secretary's suggestion that the confused regulatory history and admittedly
erroneous preamble provided notice of the Secretary's current interpretation. Moreover,
operators should not be held to examining regulatory history to learn the meaning of a standard
that appears to be clear on its face. See generally Diebold, Inc. v. Marshall, 585 F.2d 1327, 1337
& n.13 (6th Cir. 1978).

8 Cf VP-5 Mining Co., 15 FMSHRC 1531, 1538-39 (August 1993) (no requirement that

methane be diluted to a specific level before air in gob enters the connectors); Island Creek Coal
Co., 15 FMSHRC 339, 349 (March 1993) (citation vacated where excessive methane was present
in the gob but was being ventilated in accordance with mine's ventilation plan).
9

The Secretary argues that the judge erred in precluding Claude Narramore, the
chairman of the MSHA gassy mines committee, from testifying about the intended scope of the
standards. We disagree. Testimony as to the intended meaning of rules is generally not
considered in construing a standard. 2A Nonnan J. Singer, Sutherland Stat. Constr. § 48.16 (5th
ed. 1992); 2 Arn. Jur. 2d "Administrative Law"§ 239 (2d ed. 1994) (construction of regulations
is generally governed by the same rules of construction that apply to statutes). See generally
Northern Colo. Water Conservancy Dist. v. FE.R.C., 730 F.2d 1509, 1518 (D.C. Cir. 1984).

539

We note that, subsequent to the commencement of this action, MSHA published a
regulatory agenda "proposing to revise the existing safety standards for metal and nonmetal
mines. The proposal would address excessive methane in outburst cavities in abandoned, idle,
and worked out areas of Category II-A mines...." 59 Fed. Reg. 57823 (November 14, 1994). 10
Rulemaking is the appropriate means by which to impose the requirement that unsealed
abandoned areas must be ventilated. See generally Southern Ohio Coal Co., 14 FMSHRC 978,
985 (June 1992).

III.
Conclusion
For the foregoing reasons, we affirm the judge's vacation of the citations alleging
violations of sections 57.22232 and 57.22235(a).

J

~ti~
yce
ADOYJe, ComrniSSi011ef

Arlene Holen, Commissioner

10

On January 25, 1995, Morton filed a motion requesting the Commission to take
judicial notice of this agenda. We have done so.

540

Chairman Jordan and Commissioner Marks, concurring in the result:
Although we agree that the citations at issue in this case must be vacated, and would
therefore affirm the judge in result, we respectfully disagree with our colleagues' determination
that the requirements of 30 C.F.R. §§ 57.22232 and 57.22235(a) (1995) do not apply to unsealed
abandoned areas of"domal salt mines where an outburst ... has occurre<l." 1 These standards
specify protective actions an operator must take if methane reaches a certain amount in the "mine
atmosphere." Our colleagues have concluded erroneously that the Secretary of Labor cannot
reasonably interpret the phrase "mine atmosphere" to include unsealed abandoned areas within a
mine.

I.
Whether the Secretary May Apply
Sections 57.22232 and 57.22235(a) to Unsealed Abandoned Areas
The principles requiring the Commission to defer to the Secretary's interpretations of his
own standards are well-settled. An agency's interpretation of its own regulations must be given
"a high level of deference ... unless it is plainly wrong." General ElectFic Co. v. EPA, 53 F.3d
1324, 1327 (D.C. Cir. 1995), quoting General Carbon Co. v. Occupational Safety and Health
Review Comm 'n, 860 F.2d 479, 483 (D.C. Cir. 1988). Accord, Udall v. Tallman, 380 U.S. 1, 15
L. Ed. 2d 616, 85 S.Ct. 792 ( 1965); Secretary ofLabor v. Western Fuels - Utah. Inc., 900 F.2d
318, 321 (D.C. Cir. 1990). Courts defer to agency interpretations of their regulations so long as
they are "logically consistent with the language of the regulation[s] and ... serveO a permissible
regulatory function." General Electric, 53 F.3d at 1327, quoting Rollins Envtl. Servs., Inc. v.
EPA, 937 F.2d 649, 652 (D.C. Cir. 1991). As the court noted in General Electric:
The policy favoring deference is particularly important where, as
here, a technically complex statutory scheme is backed by an even
more complex and comprehensive set of regulations. In such
circumstances, ' the arguments for deference to administrative
expertise are at their strongest.'

Id., quoting Psychiatric Inst. of Washington, D.C. v. Schweiker, 669 F.2d 812, 813-14 (D.C. Cir.
1981 ).

.

The Commission, no less than the courts, owes such deference to the Secretary's
interpretations of his regulations. Secretary ofLabor v. Cannelton Indus., Inc., 867 F.2d 1432,
1439 (D.C. Cir. 1989). We defer to the Secretary's interpretation even if it is not the one we

1

Such mines are otherwise known as "Subcategory II - A" mines. 30 C.F .R.
§ 57.22003(a)(2)(i).

541

would have adopted in deciding the question as a matter of first impression. Energy West Mining
Co. v. Federal Mine Safety & Health Review Comm 'n, 40 F.3d 457, 462 (D.C. Cir. 1994), aff'g
15 FMSHRC 587 (April 1993). Deferral is appropriate because "it is the agencies ... that have
the technical expertise and political authority to carry out statutory mandates." General Electric,
53 F.3d at 1327 (citing Chevron, US.A., Inc. v. Natural Resources Defense Council, 467 U.S.
837, 864-66 (1984)). See also Secretary ofLabor on behalfof Wamsley v. Mutual Mining, Inc.,
Nos. 95-1130 & 95-1212, slip op. at 7 (4th Cir. April 3, 1996) (Secretary's promulgation and
enforcement of standards brings him into "constant contact with the daily operations of the
mines[,]" endowing him with the "'historical familiarity and policymaking expertise' ... that are
the basis for judicial deference to agencies.") (quoting Martin v. Occupational Safety and Health
Review Comm'n, 499 U.S. 144, 152 (1991)).
In our view, the Secretary's interpretation of''mine atmosphere" in sections 57.22232 and
57.22235(a) to include unsealed, abandoned areas is emphatically entitled to deference. Section
57.22232, entitled "Actions at 0.5 percent methane (I B, II-A, II-B, IV, V-B and VI mines),"
provides:

. If methane reaches 0.5 percent in the mine atmosphere,
ventii~tion changes shall be made to reduce the level of methane.
Until methane is reduced to less than 0.5 percent, electrical power
shall be deenergized in affected areas, except power to monitoring
equipment determined by MSHA to be intrinsically safe under 30
C.F.R. Part 18. Diesel equipment shall be shut off or immediately
removed from the area and no other work shall be permitted in
affected areas.
30 C.F.R. § 57.22232 (emphasis supplied). Section 57.22235 is entitled "Actions at 1.0 percent
methane (I-C, II-A, II-B, and IV mines)," and subsection (a) provides:

If methane reaches 1.0 percent in the mine atmosphere, all persons
other than competent persons necessary to make ventilation changes
shall be withdrawn from affected areas until methane is reduced to
less than 0.5 percent.
30 C.F.R. § 57.22235(a) (emphasis supplied). The judge refused to defer to the Secretary's
interpretation of"mine atmosphere" to include vnsealed, abandoned areas. 16 FMSHRC at 417,
419 (February 1994) (ALJ). He concluded instead that "mine atmosphere" only encompasses
active areas. Id. at 420.
The appropriate starting place for determining the scope of sections 57.22232 and
57.22235(a) is the definition of"mine atmosphere" contained in 30 C.F.R. § 57.22002. That
provision defines "mine atmosphere" in relevant part as "any point at least 12 inches from the
back, face, rib and floor in any mine." Id. (emphasis added). The definition does not exclude any

542

area of the mine. Therefore, unless an abandoned unsealed area cannot be said to contain a back,
face, rib or floor, the Secretary's decision to include that area within the scope of the term "mine
atmosphere" is an interpretation consistent with a straightforward reading of section 57.22002.
Only one of the terms contained in the definition of mine atmosphere is itself the subject
of a regulatory definition. 30 C.F.R. § 57.2 describes "face" as "that part of any mine where
excavating is progressing or was last done." Id (emphasis supplied). Rather than indicating that
"face" and "abandoned areas" are mutually exclusive terms, the definition in section 57 .2 leads
to the opposite conclusion: because a "face" includes an area where excavating "was last done,"
it may therefore exist in an abandoned area. 2
The Secretary's refusal to exclude unsealed abandoned areas from requirements
pertaining to methane accumulations in the "mine atmosphere" is thus a decision fully consistent
with the regulatory definitions pertaining to that term. Accordingly, the judge erred in refusing
to defer to the Secretary's interpretation of sections 57.22232 and 57.22235(a).
In considering whether it is permissible for the Secretary to include an unsealed
abandoned area within the scope of the term "mine atmosphere," our colleagues ignore the
definition of that term contained in section 57.22002. They tum instead to regulations which
require methane testing in areas of the mine designated as "active workings," "working faces,"
"all work places," "each active working face," "each face blasted," "active mining faces," "main
returns," "returns from idle workings," and "returns from abandoned workings." See 30 C.F.R.
§§ 57.22206, 57.22212 and 57.22228(b), (c), and (d). That there is no standard which similarly
requires an unsealed abandoned area of a mine to be tested for methane leads our colleagues to
conclude that the Secretary cannot reasonably require such an area to be subject to the
requirements of sections 57.22232 and 57.22235(a). But the qualification of the term "face" in
some of these standards (e.g., the reference in section 57.22228(c) to "active working face"), in
the context of active mine operations, further supports the view that an unqualified reference to
"face" can reasonably be interpreted to include an abandoned unsealed area.
Our colleagues redefine the term "mine atmosphere" and limit it to only those areas of the
mine which are regularly required to be tested for methane. Such an approach, in their view,
gives a "comprehensive, harmonious meaning to these provisions" and therefore they "cannot
conclude that the Secretary's interpretations of sections 57.22232 and 57.22235(a).to apply to
abandoned areas, which are not required to be tested, is a reasonable one." Slip op. at 5. As our
colleagues' interpretation of "mine atmosphere" is. inconsistent with the regulatory definition of

2

In reaching his determination, the judge ignored the regulatory definition in section
57.2 and referred instead to the definition of face contained in U.S. Department of the Interior,
Dictionary ofMining, Mineral and Related Terms 289 (1968). It is only in the absence of an
applicable regulatory definition that a regulatory term may be defined in accordance with its
dictionary meaning. See Pyramid Mining Inc., 16 FMSHRC 2037, 2039 (October 1994).

543

that term contained in section 57 .22002, and also restricts the areas of the mine in which the
Secretary can require the removal of methane, we are puzzled by their claim of providing a more
"comprehensive" and ''harmonious" interpretation to the provisions under review. In any event,
even if we were willing to concede that our colleagues' interpretation of "mine atmosphere" is
more "comprehensive" and "harmonious" than the Secretary' s, the principles of Commission
deference preclude us from rejecting the Secretary's interpretation of his own standard. Our
colleagues' preference for their own alternative interpretation does not entitle them to reject the
Secretary's construction since "we are not positioned to choose from plausible readings the
interpretation we think best." General Electric, 53 F.3d at 1327, quoting American Fed. of
Gov 't Employees v. FLRA, 778 F.2d 850, 856 (D.C. Cir. 1985).
Our colleagues claim that to apply the requirements of sections 57.22232 and 57.22235(a)
to abandoned areas is to require those areas to be ventilated, a requirement the Secretary
"expressly declined to promulgate as to Subcategory II-A mines." Slip op. 6. They argue
further that the Secretary's failure to promulgate a standard that would have required unsealed
abandoned areas to be ventilated "demonstrates an intent to exclude the requirement." Id
Our colleagu~s' position is without merit. Relying on a 1985 regulatory change, they
infer an intent to not require ventilation of abandoned areas which is contrary to the explanation
offered by the Secretary in the preamble to those rules. They then compound the error by
interpreting the separately promulgated requirements contained in sections 57.22232 and
57.22235 (a) in accordance with this mythical "intent."
As the majority points out, for nearly 20 years, 30 C.F.R. Part 57 contained the
requirement that "abandoned areas shall be sealed or ventilated: areas that are not sealed shall be
barricaded and posted against unauthorized entry." 30 C.F.R. § 57.21-43 (1969) (see 34 Fed.
Reg. 12517 (July 31, 1969)). Under this provision, the operator could either seal or ventilate an
abandoned area. An operator that chose to ventilate, however, was also required to barricade and
post the area against unauthorized entry. In short, it was not possible for an operator to comply
with former section 57 .21-43 by following the course of action that Morton International, Inc.,
Morton Salt ("Morton") followed here, i.e., by simply barricading an unsealed abandoned area.
When the Department of Labor's Mine Safety and Health Administration ("MSHA")
later published proposed rules revising the former system of categorizing mines,.proposed
section 57.34214 (applicable to Subcategory II-A mines) repeated the requirement that an
unsealed abandoned area had to be both ventilate.d and barricaded. See 50 Fed. Reg. 23612,
23644 (June 4, 1985). MSHA omitted this section, however, when publishing the final rules,
explaining that "this standard, which provided safety protection from potential methane in
abandoned areas, is duplicative of the requirements and protection afforded by existing
§ 57.8528." 52 Fed. Reg. 24924, 24926 (July 1, 1987).
A comparison of section 57.8528 with proposed section 57.34214 reveals that the drafters
were mistaken. Section 57.8528 did not duplicate the requirements of proposed section

544

57.34214. Section 57.8528 required: "Unventilated areas shall be sealed, or barricaded and
posted against entry." Under this remaining regulation (which the Secretary had mistakenly
believed provided the identical protection as the eliminated ventilation requirement), an operator
could merely barricade an unsealed abandoned area without ventilating it. Thus, although the
Secretary reaffirmed the need for "safety protection from potential methane in abandoned areas,"
52 Fed Reg. 24926, he unwittingly eliminated a requirement to ventilate abandoned areas that
remained unsealed.
The regulatory history relied on by our colleagues demonstrates that the only reason the
specific requirement to ventilate abandoned areas was eliminated was the drafters' erroneous
view that the identical protection was already provided under a separate standard. Choosing to
ignore this specific evidence of the Secretary's intent, however, our colleagues echo the judge's
erroneous reliance on a general rule of statutory construction, contending that '1he consideration
and rejection of a proposed provision demonstrates an intent to exclude the requirement." Slip
op. at 6 (citing 2A Norman J. Singer, Sutherland Stat. Constr. §§ 48.04, 48.18 (5th ed. 1992)
("Sutherland"). See 16 FMSHRC at 422.
We cannot agree with our colleagues' conclusion that the Secretary's withdrawal of
proposed section 57.34214 establishes his intent to exclude the requirement to ventilate unsealed
abandoned areas. That such requirement was removed is not disputed. That such removal was
inadvertent is also clear. In the sentence immediately following the one quoted by the majority,
the authority cited by them recognized the possibility that the withdrawal of a proposed provision
does not always signify the drafters' intent to reject the substance of the rejected provision:
Generally the rejection of an amendment indicates that the
legislature does not intend the bill to include the provisions
embodied in the rejected amendment. However, such rejection
may occur because the bill already includes those provisions.
Other interpretive aids may indicate that this is the case.
2A Sutherland§ 48.18 (emphasis supplied).
Our colleagues, however, conclude that the removal of a provision which expressly
required the ventilation of unsealed abandoned areas also prevents the Secretary from
interpreting the separate standards in a manner that could lead to the ventilation of those areas.
Hence, they claim that an interpretation of sections 57.22232 and 57.22235(a) that results in an
operator ventilating an abandoned area to reduce the level of methane is unreasonable. By
restricting the scope of sections 57.22232 or 57.22235(a) in accordance with what they have
erroneously determined to be an overriding Secretarial intent to eliminate any requirement of
ventilation of abandoned unsealed areas, instead of interpreting those standards in accordance
with their ordinary meaning, our colleagues are allowing the tail to wag the dog. The standards
clearly provide that the protective actions specified therein are triggered whenever methane
reaches certain levels in the "mine atmosphere." Since the abandoned area in question can

545

reasonably be considered part of the "mine atmosphere," the Secretary can apply sections
57.22232 and 57.22235(a) to such an area, notwithstanding the Secretary's prior removal of a
separate requirement pertaining to the ventilation of abandoned areas in a Subcategory II - A
mme.

II.
Whether the Secretary Carried His Burden
Of Provin~ That Morton Violated Sections 57.22232 and 57.22235(a)
Having concluded that the Secretary can apply the requirements of sections 57.22232 and
57.22235(a) to an unsealed abandoned area, we must next detennine whether Morton violated
those requirements in the instant case. There is no dispute that, at a minimum, the standards
require an operator to take certain precautionary steps once methane reaches specified levels in
the mine atmosphere. Section 57.22232 requires ventilation changes, deenergization of
electrical power, shutoff or removal of diesel equipment and cessation of work in affected areas
once methane reaches 0.5% in the mine atmosphere. Section 57.22235(a) requires withdrawal of
all persons from affected areas if methane reaches 1.0% in the mine atmosphere.
Although Morton was cited under section 57.22235, the Secretary concedes that Morton
did not fail to withdraw anyone from "affected areas." As to the stipulated citation under section
57.22232, we agree with the majority that there was no electrical power to deenergize and no
diesel equipment to shut off or remove when Inspector Lara detected 3.25% methane. After
learning of the presence of methane, Morton took steps to reduce the level of the gas. Miners
conducted scaling and installed a diesel generator to ventilate the abandoned area. J. Ex. 1, Stip.
11. In our view, the Secretary has not demonstrated that Morton failed to properly respond once
it learned of the presence of methane in excess of allowable levels.
At oral argument, however, the Secretary asserted, for the first time, that sections
57.22232 and 57.22235(a) were clear on their face that the existence of methane in excess of the
specified levels, in and of itself, gave rise to a violation. 3 Oral Arg. Tr. 13-14. The

3

The Secretary's Petition for Discretionary Review assigned error only to:
the administrative law judge['s] . : . finding that Morton Salt did
not violate 30 C.F.R. 57.22235 and 57.22232 when it failed to
remove persons when methane reached 1.0 percent and failed to
make ventilation changes when methane reached 0.5 percent in its
mine atmosphere.

PDR at 1-2 (emphasis supplied). In hls brief, the Secretary described the issue presented as:

546

Commission need not consider arguments raised for the first time at oral argument. See Tarpley
v. Greene, 684 F.2d 1 (D.C. Cir. 1982) ("It is not the task of this court to consider all of the
implications of a theory vaguely raised for the first time at oral argument on appeal .... " 684
F.2d at 7, n.17; see also Beech Fork Processing, Inc., 14 FMSHRC 1316, 1320-21 (August
1992); cf Keystone Coal Mining Corp., 16 FMSHRC 6, 10-11, n.7 (January 1994). We
therefore do not address the Secretary's contention that the presence of methane above the
specified levels gives rise to a violation of sections 57.22235(a) and 57.22232.4
Because the Secretary is unable to demonstrate that Morton failed to take any of the
protective actions required by the standards for which it was cited, we agree that the judge's
vacation of the citations alleging violations of sections 57.22232 and 57.22235(a) should be
affirmed.

Marc Lincoln Marks, Commissioner

Whether the administrative law judge erred in finding that Morton
Salt did not violate 30 C.F.R. 57.22232 and 57.22235(a) when it
failed to make ventilation changes when methane reached 0.5
percent in its mine atmosphere and failed to remove persons when
methane reached 1.0 percent in its mine atmosphere.
S. Br. at 1 (emphasis supplied).
4

We note, however, that the Secretary has recently rejected such an interpretation in
connection with the corresponding requirements for underground coal mines. In discussing the
provisions of 30 C.F.R. § 75.323, entitled "Actions for Excessive Methane," the drafters of the
recently revised ventilation standards explain: "[.o]nly the failure to properly respond once being
made aware of the presence of methane in excess of allowable levels is a violation." 61 Fed.
Reg. 9778 (March 11, 1996).

547

•

Distribution:
Henry Chajet, Esq.
Patton & Boggs
2550 M Street, N.W.
Washington, D.C. 20037
Jerald S. Feingold, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judges
5203 Leesburg Pike
2 Skyline, 10th Floor
Falls Church, VA 22041

548

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

April 24, 1996

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

v.

Docket No. KENT 95-781

GLENN'S TRUCK.ING COMPANY, INC.

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, 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 seq. (1994) ("Mine Act"). On March 18, 1996, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to Glenn's Trucking Company, Inc. ("Glenn's
Trucking") for failing to answer the petition for assessment of penalty filed by the Secretary of
Labor on October 26, 1995, or the judge's Order to Respondent to Show Cause issued on January
25, 1996. The judge assessed the civil penalty of $2,000 proposed by the Secretary.
On April 1, 1996, the Commission received a letter from Glenn's Trucking asserting that,
on February 13, 1996, it had sent the Commission its answer and a copy of a "letter of protest"
that it had sent to the Secretary on August 17, 1995. Glenn's Trucking enclosed copies of its
answer and letter. It requests that the default order,be set aside and the case reassessed.
The judge's jurisdiction in this matter terminated when his decision was issued on
March 18, 1996. 29 C.F.R. § 2700.69(b) (1995). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem Glenn's Trucking's letter to be a timely filed petition for discretionary
review, which we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September
1988).

549

On the basis of the present record, we are unable to evaluate the merits of Glenn's
Trucking's position. In the interest of justice, we vacate the default order and remand this matter
to the judge, who shall determine whether relief from default is warranted. See Amber Coal Co.,
11 FMSHRC 131, 132-33 (February 1989).

~~.£.~.
)T;e AOY1e, CommissiQllef

Marc Lincoln Marks, Commissioner

C. Riley, Commissioner

550

Distribution

Glenn Baker
Glenn's Trucking Co., Inc.
717 Kentucky Boulevard
Haz.ard, KY 41701
Thomas A. Grooms, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd., Suite B-201
Nashville, TN 37215
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street N.W., 6th Floor
Washington, D.C. 20006

5 51

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

April 24, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of CARROLL JOHNSON
and

Docket Nos. SE 93-182-D
SE 93-104

UNITED MINE WORKERS OF
AMERICA
v.
JIM WALTER RES'oURCES, INC.

BEFORE: Doyle, Holen, Marks and Riley, Commissioners 1
DECISION
BY: Doyle, Holen and Riley, Commissioners
These discrimination and civil penalty proceedings, arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), raise the issue of
whether Administrative Law Judge Avram Weisberger properly considered and applied the
penalty criteria in section l lO(i) of the Mine Act2 in assessing civil penalties of $1,000 and
Chairman Jordan has recused herself in this matter. Pursuant to section 113(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 823(c), we have designated ourselves a
panel of four Commissioners to exercise the p~wers of the Commission.
·i

2

Section 11O(i) sets forth six criteria for assessment of penalties under the Act.
The Commission shall have authority to assess all civil
penalties provided in [the Act]. In assessing civil monetary
penalties, the Commission shall consider the operator's history of
previous violations, the appropriateness of such penalty to the size
of the business of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue in

552

$2,000 against Jim Walter Resources, Inc. ("JWR") for violations of sections 103(f) and 105(c)
of the Mine Act, 30 U.S.C. §§ 813(f) & 815(c). 15 FMSHRC 2588 (December 1993) (ALJ).
The Commission granted the Secretary of Labor's petition for discretionary review,
which challenges the judge' s penalty assessment for the violation of section 105(c). A petition
for discretionary review filed by the United Mine Workers of America ("UMWA"), intervenor,
was also granted. The UMWA challenged penalty assessments for both violations as well as the
judge's failure to address its request that the complainant be reimbursed for expenses incurred as
a result of pursuing his discrimination action. The Commission heard oral argument. For the
reasons that follow, we vacate and remand.
I.

Factual and Procedural Backiround
On Saturday, November 23, 1991, Carroll Johnson, chainnan of the UMWA safety
committee and authorized miners' representative, accompanied Terry Gaither and Milton
Zimmennan, inspectors from the Department of Labor' s Mine Safety and Health Administration
("MSHA"), during a foll.ow-up inspection to evaluate measures implemented by JWR to reduce
respirable dust levels on the No. 1 longwall section of its No. 7 underground coal mine. 3 15
FMSHRC at 2589-90. During the inspection, Johnson traveled 250 to 300 feet ahead of the
inspectors to observe the water sprays on the longwall shearer. Id at 2590-91. Johnson
infonned longwall coordinator Thom Parrott that the sprays might not be operating properly. Id
Parrott shrugged his shoulders and did not respond. Id. at 2591. Johnson then infonned
Inspector Gaither, who told Parrott that the sprays might have to be cleaned. Id. Parrott shut
down the shearer for cleaning and telephoned Richard Donnelly, the deputy mine manager, to
inquire whether Johnson was permitted to separate himself from the inspection party. Id.
Donnelly responded that he was not and instructed Parrott to tell Johnson to stay with the
inspectors and not to conduct his own inspection. Id at 2591-92; Tr. 458. Parrott so directed
Johnson. 15 FMSHRC at 2592.

business, the gravity of the violation, and the demonstrated good
faith of the person charged in attemp~ing to achieve rapid
compliance after notification of a violation.
30 u.s.c. § 820(i)
3

A withdrawal order had been previously issued, pursuant to section 104(b) of the Mine
Act, 30 U.S.C. § 814(b), because JWR failed to reduce the level ofrespirable dust as directed by
MSHA as a result of a citation issued during a section 103(g) inspection. 15 FMSHRC at 2589.

553

Later during the inspection, Johnson traveled 15 to 40 feet from the inspectors to view the
shearer. 15 FMSHRC at 2591-92. Seeing Johnson apart from the inspectors, Parrott told
Johnson that he was relieved of his duties. Id. Parrott telephoned Donnelly, who affirmed
Johnson's discharge. Tr. 466-67. Upon learning of Johnson's discharge, Inspector Zimmerman
issued a citation for violation of section 103(f) of the Mine Act 4 and told Donnelly that he would
issue a section 104(b) withdrawal order if miner representation were not permitted. 15 FMSHRC
at 2599; Gov't Ex. 17. Johnson was then reinstated as the miners' representative for the
remainder of his shift. 15 FMSHRC at 2601; Tr. 72-73; Gov't Ex. 17.
Upon reporting to work on Monday, November 25, 1991, Johnson received a 5-day
suspension with intent to discharge. 15 FMSHRC at 2599. The following day, prior to a union
grievance meeting, Johnson was reinstated and compensated for wages lost as a result of the
suspension. Id. at 2599; Tr. 273-77.
Based on the foregoing events, the Secretary determined that, in addition to the cited
section 103(f) violation, Johnson had been discriminated against in violation of section 105(c) of
the Mine Act5 and filed a complaint of discrimination with the Com.mission.

4

Section 103(£) provides, in part:
[A] representative of the operator and a representative authorized
by his miners shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical
inspection of any coal or other mine ... for the purpose of aiding
such inspection ....

30 u.s.c. § 813(£).
5

Section 105(c) provides, in relevant part:

(1) No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exe~cise of the statutory rights of any
miner, representative of miners or applicant for employment in any
coal or other mine subject to this [Act] ... because of the exercise
by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this [Act).
30 U.S.C. § 815(c).

554

Following hearing, the judge determined that JWR violated section 103(f) by interfering
with Johnson' s walkaround rights as the miners' representative. 15 FMSHRC at 2601. He also
determined that JWR violated section I 05(c) by discharging Johnson because ·be was engaged in
protected activity while accompanying the inspectors and that JWR's decision to discipline
Johnson was motivated in part by Johnson's refusal to obey JWR's order to stay with the
inspectors. Id. at 2597.
The judge assessed civil penalties of $1 ,000 for the section I 03(f) violation and $2,000
for the 105(c) violation. 15 FMSHRC at 2600-01. The judge evaluated JWR' s history of
violations by detennining whether similar violations had previously occurred. Id at 2597-99. In
evaluating the gravity of the violations, the judge found that the evidence of a chilling effect on
miners was "too speculative." Id at 2600 n. l 0. Regarding good faith in abating the violations,
the judge found that Johnson was reinstated on November 23 as walkaround representative after
the inspector threatened to issue a 104(b) withdrawal order. Id. at 2601. He also found that
Johnson was reinstated on November 26 and subsequently compensated for all lost wages. Id at
2600.

II.
Disposition
A.

General Principles

The Mine Act requires that, in contested civil penalty cases, the Commission make an
independent penalty assessment based solely on the statutory criteria of section 11 O(i) of the Act.
Sellersburg Stone Co. , 5 FMSHRC 287, 291 (March 1983), a.ff'd, 736 F .2d 1147, 1152 (7th Cir.
1984). In reviewing a judge' s penalty assessment, the Commission must determine whether the
judge's findings with regard to the penalty criteria are supported by substantial evidence.6 The
Commission has stated that findings of fact must be made that "not only provide the operator

6

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). " Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge' s] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989) (quoting Consolidated Edison Cp. v. NLRB, 305 U.S. 197, 229 (1938)). While
we do not lightly overturn a judge's factual findings and credibility resolutions, neither are we
bound to affirm such determinations if only slight or dubious evidence is present to support
them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 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 in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

555

with the required notice as to the basis upon which it is being assessed a particular penalty, but
also provide the Commission and the courts ... with the necessary foundation upon which to
base a determination as to whether the penalties assessed by the judge are appropriate, excessive,
or insufficient." Id at 292-93. The Commission explained that "[t]he determination of the
amount of the penalty that should be assessed for a particular violation is an exercise of
discretion by the trier of fact ... bounded by proper consideration of the statutory criteria and the
deterrent purpose underlying the Act's penalty assessment scheme." Id. at 294 (citation omitted).
While "a judge's assessment of a penalty is an exercise of discretion, assessments lacking
record support, infected by plain error, or otherwise constituting an abuse of discretion are not
immune from reversal .... " US. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). In the
instant case, the petitioners take issue with the judge's treatment of three of the penalty criteria:
the operator's history of previous violations; the gravity of the violation; and whether the
operator demonstrated good faith in attempting to achieve rapid compliance after notification of
the violation.
B.

Penalty for the Section 105Cc) Violation
1.

\ History of Previous Violations

In analyzing the history criterion, the judge cited the following legislative history of the
Mine Act:
In evaluating the history of the operator's violations in assessing penalties, it is
the intent of the Committee that repeated violations of the same standard,
particularly within a matter of a few inspections, should result in the substantial
increase in the amount of the penalty to be assessed.
15 FMSHRC at 2598 (quoting S. Rep. No. 181, 95th Cong., 1st Sess. 43 (1977) ("S. Rep."),
reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 631 (1978)
("Legis. Hist.") (emphasis supplied by judge)). The judge then concluded that evidence of
previous violations, including cases resolved through settlement, was insufficient to warrant
increasing the civil penalty because none of the parties presented "any 'history qf previous
violations' similar to the one at issue, i.e., interference with the right of a walkaround who was
not in the immediate vicinity of the inspectors." 15 FMSHRC at 2598-99; see also id. at 259798 n.6.
'
The Secretary and the UMWA claim the judge erroneously limited his consideration of
JWR•s history of previous violations to cases involving "interference with the right of a
walkaround who was not in the immediate vi~inity of the inspectors." S. Br. at 7-13; UMWA Br.
at 8-12. They take exception to the judge's refusal to consider JWR's general history of
violations or previous section 105(c) violations, including those resolved through settlement. S.

556

Br. at 13-17; UMWA Br. at 8-9. JWR contends the judge properly gave limited weight to past
incidents of alleged discrimination. JWR Br. at 7. It also argues that section 105(c) cases
involving safety-related complaints are not particularly relevant to this case and that the judge
properly attributed little weight to settled cases involving dissimilar conduct. Id at 8-9.
Section 11 O(i) provides in part that, in assessing civil penalties, "the Commission shall
consider the operator's history of previous violations .... " 30 U.S.C. § 820(i). Thus, the
language of section 11 O(i) does not limit the scope of history of previous violations to similar
cases. The Commission has explained that "section 11 O(i) requires the judge to consider the
operator's general history of previous violations as a separate component when assessing a civil
penalty. Past violations of all safety and health standards are considered for this component."
Peabody Coal Co., 14 FMSHRC 1258, 1264 (August 1992) (emphasis added). The appropriate
weight, if any, to be attached by the judge to older violations should be based on relevancy.
The judge failed to consider the operator's general history of previous violations
submitted into evidence by the Secretary as the Assessed Violation History Report. Gov't Ex.
13. That exhibit, which relates exclusively to JWR's No. 7 mine, lists a history of 679 paid
violations that occurred within 24-months of the subject violation. 7 Id
Thus, we conclude that the judge erroneously limited the scope of the history criterion.
We therefore remand the matter to the judge to evaluate the operator's history of violations.
2.

Gravity

The Secretary's argument that the judge incorrectly applied the gravity criterion is
supported by the UMWA. S. Br. at 17-24; UMWA Br. at 10-11. The Secretary also contends
that the Mine Act's legislative history indicates every violation of section 105(c) is presumed to
have a chilling effect on miners' protected safety activities. S. Br. at 18-19. The Secretary and
the UMWA further assert that a chilling effect occurred in this case. 8 S. Br. at 17-24; UMWA
Br. at 10-11. JWR responds that Johnson's suspension would not deter other miners from
reporting safety problems because a case involving proximity to MSHA inspectors is unlikely to
arise again. JWR Br. at 6. It also asserts that Johnson has not been intimidated from exercising
his right to complain to MSHA. Id. at 6-7.

7

The Secretary, by regulation, has limited the length and content of violation history for
purposes of his penalty proposal to "the number of assessed violations in a preceding 24-month
period." 30 C.F.R. § 100.3(c).
8

The Secretary and the UMWA's challenge regarding the gravity criterion is limited to
the judge's rejection of their "chilling effect" argument. No other argument regarding the
seriousness of the violation is advanced.

557

We reject the Secretary's argument that a chilling effect should be presumed in every
discrimination case. The Mine Act does not provide for such a presumption. References to
chilling effect in the legislative history are made in connection with the temporary reinstatement
provision "to protect miners from the adverse and chilling effect of loss of employment." Conf.
Rep., reprinted in Legis. Hist. at 1362; Floor Debate, reprinted in Legis. Hist. at 1088-89
(statement of Senator Church). Contrary to the Secretary's assertions, this legislative history
does not suggest that a chilling effect should be presumed to result from every section 105(c)
violation. In our view, Congress intended that section I 05(c) would protect miners against the
chilling effect of employment loss they might suffer as a result of an illegal discharge. We
therefore hold that the Mine Act does not support such a presumption and that a determination of
whether a chilling effect resulted from a section 105(c) violation is to be made on a case-by-case
basis.
The Secretary has urged that, in evaluating whether there is evidence of a chilling effect,
the Commission adopt an objective standard, which does not require proof that adverse action
actually discouraged miners from engaging in protected activities, but rather requires
consideration of whether the adverse action "reasonably tended to discourage miners from
engaging in protected activities. " 9 Although the authority cited by the Secretary relates to the
enforcement of sectiop 8(a)(l) of the National Labor Relations Act, 29 U.S.C. § 158(a)(l)
(1994), 10 we conclude.that the Congressional objectives reflected in that section and in the Mine
Act's section 105(c) are essentially the same, i.e., to provide legal protection against adverse
action to employees who exercise rights afforded by law. 11 We also conclude, however, that

9

S. Post Oral Arg. Letter (January 22, 1996) (citing Teamsters Local Union No. 171 v.
NLRB, 863 F.2d 946, 954 (D.C. Cir. 1988), cert. denied sub nom. A.G. Boone Co. v. NLRB, 490
U.S. 1065 (1989); Southwest Regional Joint Bd., Amalgamated Clothing Workers ofAm. v.
NLRB,44 1 F.2d1027, 1031 (D.C. Cir.1970);JoySilkMills, Inc. v. NLRB, 185 F.2d 732, 743-44
(D.C. Cir. 1950), cert. denied, 341 U.S. 914 (1951); Wyman-Gordon Co. v. NLRB, 654 F.2d 134,
145 (1st Cir. 1981)).
10

Section 8(a)(l) states:
(a) Unfair labor practices by employer
1t shall be an unfair labor practice for an employer -(1) to interfere with, restrain, or
coerce employees in the exercise of
the rights guaranteed in section 157
of this title[.]

11

The Commission has recognized that case law interpreting the National Labor
Relations Act, upon which the Mine Act's antidiscrimination provisions are modeled, provides
guidance on resolution of discrimination issues. See, e.g., Swift v. Consolidation Coal Co., 16

558

subjective evidence of a chilling effect, e.g., testimony of the complainant or other miners, is
relevant to consideration of the gravity of a section 105(c) violation. Accordingly, we hold that
both subjective and objective evidence should be considered in evaluating whether a chilling
effect resulted from adverse action. We agree with the Secretary that, in the event that a chilling
effect is found, such a determination does not a fortiori mean the gravity of the violation is high.
That is a fact-specific conclusion. See Oral Arg. Tr. 19-22, 56.
In evaluating whether Johnson's suspension had a chilling effect on other miners, the
judge concluded the evidence was ''too speculative." 12 15 FMSHRC at 2600 n.10. In so doing,
the judge appears to have applied only a subjective standard. There is no indication that the
judge evaluated the gravity of the violation within its factual context, i.e., whether JWR's
removal of a miners' representative who was accompanying MSHA during an inspection would
reasonably tend to discourage other miners from engaging in protected activities. Because the
judge did not evaluate any objective factors in determining whether a chilling effect resulted
from the violation, we remand the matter to the judge for reconsideration of the violation' s
gravity.
3.

Good Faith

The UMWA argues that substantial evidence does not support the judge's determination
that JWR demonstrated good faith in abating the section 105(c) violation. UMWA Br. at 12-13.
Intervenors also assert that Johnson was reinstated only after the inspectors threatened to issue a
section 104(b) withdrawal order, that he was fired again two days later when he reported for
work on Monday, and that he was reinstated the following day only after UMWA officials
interceded. Id JWR responds that it engaged in good faith abatement by allowing Johnson to
complete the walkaround, resuming the dispute after the inspection, and by promptly reinstating
him. JWR Br. at 7-8 n.3.

FMSHRC 201, 206 (February 1994) (showing of facial discrimination); Meekv. Essroc Corp.,
15 FMSHRC 606, 616 (April 1993) (deduction of unemployment compensation from backpay
award); Metric Constructors, Inc., 6 FMSHRC 226, 231-32 (February 1984), aff'd sub nom.
Brock ex rel. Parker v. Metric Constructors, Inc., 766 F.2d 469 (11th Cir. 1985) (mitigation
defense to backpay award).
12

Johnson testified "I feel like they' re out to get me as a result of this." Tr. 180. On
cross examination, however, he agreed that he has "never been intimidated or chilled or afraid to
the point that [he] declined to exercise the right to go to MSHA . ... " Tr. 201-02. Daryl
Dewberry, UMWA District No. 20 executive board member, testified that at least 70 percent of
miners who have reported violations requested that they not be identified, due to fear of
retaliation. Tr. 299-300. Recalling the incident with Johnson, Dewberry stated that irreparable
harm occurred in the minds of Johnson and other miners. Tr. 304.

559

The judge found that the section 105(c) violation initially occurred on Saturday when
Johnson was ordered to leave the work area, and recurred on Monday when he was suspended
with intent to discharge. 15 FMSHRC at 2599-2600. With respect to Saturday' s action, the
judge noted that Johnson was reinstated after the inspector informed JWR of its violative conduct
and warned the company that a section 104(b) withdrawal order would be issued. Id at 2599 &
n.9. With respect to adverse action on Monday, the judge found that, since Johnson was
reinstated on Tuesday and compensated for all lost wages, he did not suffer any damages. Id at
2600.
Although the foregoing findings are relevant to the good faith criterion, the judge did not
set forth his conclusions as to whether JWR's conduct demonstrated good faith in abating the
violation. See 15 FMSHRC at 2600. Thus, there is no basis for our review of this issue. We
therefore remand the matter to the judge to determine whether the operator's actions
demonstrated good faith.
Thus, we vacate the penalty assessed by the judge for the section 105(c) violation and
remand for consideration of the operator's history of violations, the gravity of the current
violation, and the operator's good faith. The judge shall enter findings for each criterion and,
based on his conclusi~ns, assess an appropriate civil penalty.
C.

Penalty for the Section l 03(:f) Violation

The UMWA argues that substantial evidence does not support the judge's determination
that JWR demonstrated good faith in abating the section 103(f) violation. UMWA PDR at 3-4;
UMWA Br. at 12. The UMWA asserts that, as in the case of the section l OS(c) violation,
Johnson was reinstated only after the inspectors threatened to issue a section 104(b) withdrawal
order unless Johnson was allowed to continue to assist them. Id. JWR responds that it engaged
in good faith abatement by allowing Johnson to complete the walkaround on Saturday before
resuming the dispute. JWR Br. at 7-8 n .3.
Although the judge found it important that Johnson was reinstated after the inspector
threatened JWR with the issuance of a section 104(b) order, he did not set forth his reasoning as
to whether such action demonstrated good faith. See 15 FMSHRC at 2601. Because there is no
basis for our review of this issue, we vacate the penalty assessed for the section 103(f) violation
and remand for determination of whether the operator demonstrated good faith. The judge shall
enter his findings and, based on his conclusion, assess an appropriate civil penalty.
D.

Expenses

The UMWA argues that the judge failed to address its request that Johnson be reimbursed
for expenses incurred as a result of pursuing hjs discrimination action, including lost wages due
to his attendance at deposition and hearing. UMWA PDR at 4; UMWA Br. at 13. JWR
responds that it is not required to compensate Johnson for such lost wages. JWR Br. at 9.

560

Section 105(c)(2) of the Mine Act authorizes the Commission to remedy discrimination
by "such affirmative action to abate the violation as the Commission deems appropriate,
including, but not limited to, the rehiring or reinstatement of the miner to his former position
with back pay and interest." 30 U.S.C. § 815(c)(2) (emphasis added). The Senate Report on the
Mine Act explains:
It is the Committee's intention that ... the Commission requireO all relief
that is necessary to make the complaining party whole ... including, but not
limited to reinstatement with full seniority rights, back-pay with interest, and
recompense for any special damages sustained as a result of the
discrimination. . ..

S. Rep. 37, reprinted in Legis. Hist. at 625 (emphasis added).
The Commission has observed that " [t]he remedial goal of section 105(c) is to 'restore
the [victim of illegal discrimination] to the situation he would have occupied but for the
discrimination.' ... 'Unless compelling reasons point to the contrary, the full measure of relief
should be granted to [an improperly] discharged employee."' Secretary ofLabor ex rel. Bailey v.
Arkansas-Carbona Co., 5 FMSHRC 2042, 2049 (December 1983) (citations omitted). The
Commission has awarded expenses incurred by miners in pursuing successful discrimination
cases. See, e.g., Metric Constructors, 6 FMSHRC at 234 ("[r]ecovery of expenses incurred in
bringing a successful claim may be part of the relief necessary to make a discriminatee whole")
(citing Secretary of Labor ex rel. Dunmire v. Northern Coal Co., 4 FMSHRC 126, 143-44
(February 1982) (reimbursement of incidental, personal expenses incurred due to attendance at
discrimination hearing appropriate)) .
We hold that reimbursement to Johnson of all such reasonably incurred costs and
expenses, including wages lost as a result of pursuing his discrimination action, is appropriate.
Review of the record, however, indicates no evidence was offered regarding Johnson's expenses
or lost wages. Accordingly, we remand to afford all parties the opportunity to submit evidence
concerning the appropriate amount, if any, of expenses, including lost wages, to be awarded.

561

III.
Conclusion
For the foregoing reasons, we vacate the judge's assessment of civil penalties for both
violations and remand for reconsideration consistent with this opinion. We also remand for
determination of the amount of expenses to be awarded.

es C. Riley, Commission

562

Commissioner Marks, concurring in part and dissenting in part:
With the exception of the disposition regarding the gravity criterion of the section 105(c)
violation, I am in agreement with my colleagues' opinion.
In deciding the gravity issue, the majority rejects the Secretary's call for the Commission
to recognize that when an operator violates section 105(c), either by firing or by taking some
other adverse action against a miner who has merely acted as the Mine Act encourages (such as
reporting an unsafe condition, as was done in this case), such action has the effect of intimidating
or "chilling" future protected activities of the complainant and/or his co-workers. The majority is
unwilling to presume that such a natural reaction will occur. They require evidence of those
feelings. I do not. It is precisely for this type of circumstance, where it is not possible to gauge
the true effect upon all who are impacted, that a presumption is necessary and appropriate.
Contrary to my colleagues, I view the cited legislative history on this issue (see slip op. at
7) to clearly support such a presumption. The deep concern reflected by the Congress "to protect
miners from the adverse and chilling effect of loss of employment," was not intended to be read
narrowly. Rather, that powerful statement of Congressional intent reflects their recognition of
the obvious, which is that firing or demoting or any other reprisal taken against an employee
because he or she has acted within the protection of the law will send a message to the other
employees: if you act in the same way, you will be similarly treated!
Accordingly, I agree with the Secretary that a presumption of a chilling effect should be
made in every instance of a section 105(c) violation.

Marc Lincoln Marks, Commissioner

563

Distribution

Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Barry A. Woodbrey, Jr., Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
David M. Smith, Esq.
Maynard, Cooper & Gale
1901 Sixth Avenue
2400 AmSouth, Har~ert Plaz.a
Birmingham, AL 35203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

564

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

April 24, 1996

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

Docket No. WEST 93-169

ENERGY WEST MINING COMPANY

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Com.missioners 1
DECISION
BY: Jordan, Chairman and Doyle, Commissioner2
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). The issue is whether an inspector
from the Department of Labor's Mine Safety and Health Administration ("MSHA") abused his
discretion when he issued an order, pursuant to section 104(b) of the Mine Act, 30 U.S.C.
§ 814(b), to Energy West Mining Company ("Energy West'') based on his determination that an
extension in abatement time for a previously cited violation of 30 C.F.R. § 70.lOO(a) ( 1995) was
not warranted.3 Administrative Law Judge John J. Morris affirmed the order and assessed a civil

1

Commissioner Riley assumed office after this case bad been considered and decided at
a Com.mission decisional meeting. A new Commissioner possesses legal authority to participate
in pending cases, but such participation is discretionary. Mid-Continent Resources, Inc., 16
FMSHRC 1218 n.2 (June 1994). In the interest of efficient decision making, Commissioner
Riley has elected not to participate in this matter.
·
2

Chairman Jordan and Commissioner Doyle are the only Commissioners in the majority
on all issues presented.
3

30 C.F.R. § 70.lOO(a) provides in part:

Each operator shall continuously maintain the average dust concentration
of respirable dust in the mine atmosphere during each shift to which each miner in
the active workings of each mine is exposed at or below 2.0 milligrams of

565

penalty of $3,000 for the violation. 16 FMSHRC 835 (April 1994) (ALJ). For the reasons set
forth below, we affirm the judge's determination that the inspector did not abuse his discretion,
vacate the penalty, and remand for reassessment. 4

I.
Factual and Procedural Background
Energy West operates the Cottonwood Mine, an underground coal mine in central Utah.
During mid-June 1992, Energy West took five respirable dust samples, pursuant to 30 C.F.R.
§ 70.207, for the designated occupation of longwall operator on mechanized mining unit
("MMU") 015-0 in the 4th West Longwall section of the mine. 5 16 FMSHRC at 839; Ex. M-3;
Ex. R-2. The results from those samples showed an average concentration of2.2 milligrams of
respirable dust per cubic meter of air ("mg/m3"), which exceeded the 2.0 mg/m3 standard
applicable at the mine. 16 FMSHRC at 836-37. On June 25, 1992, MSHA issued Energy West a
citation alleging a significant and substantial ("S&S") violation of section 70. l OO(a). Id. at 836;
Citation No. 9996761. Energy West was given approximately three weeks, until July 14, to take
corrective action to lower dust and to submit five valid respirable dust samples to MSHA's
Pittsburgh Respirabl~ Dust Processing Laboratory. 16 FMSHRC at 837; Citation No. 9996761.
Mine management met to develop a corrective action strategy. 16 FMSHRC at 841.
Energy West's chief safety engineer, Randy Tatton, and mine superintendent, Garth Nielsen,
unsuccessfully attempted to divert more air to the 4th West section by moving curtains. Id.; Tr.
329-35. Safety Engineer Steve Radmall conducted a dust survey in the area using a real-time

respirable dust per cubic meter of air . ...
4

Chairman Jordan, Commissioner Doyle, and Commissioner Marks affirm the judge's
determination that the inspector did not abuse his discretion in issuing the order. Commissioner
Holen would vacate the order and reverse the judge. Chairman Jordan, Commissioner Doyle,
and Commissioner Holen vacate the penalty and remand for reassessment. Commissioner Marks
would affirm the penalty.
5

Section 70.207(a) provides in part:

Each operator shall take five valid respirable dust samples from the
designated occupation in each mechanized mining unit during each bimonthly
period . . . . Designated occupation samples shall be collected on consecutive
normal production shifts or normal production shifts each of which is worked on
consecutive days . ...
30 C.F.R. § 70.207(a).

566

aerosol monitor, or "RAM," which takes instantaneous dust readings, to determine whether dust
control measures were functioning properly. 16 FMSHRC at 841; Tr. 133-34, 213. Based on the
survey results, Radmall believed that there may have been a problem with the stage loader and a
dust generation source, such as dry roadways, in the intake air course. 16 FMSHRC at 842; Tr.
217-26, 230-31. He informed Tatton of the results and the efficiency of the stage loader was
evaluated and the roadways were watered. Tr. 145-46, 230-31. Roadways were routinely
watered in accordance with the ventilation plan. Tr. 360-61; Ex. R-4.
In addition, the equipment overhaul coordinator, Bud Warrington, informed the longwall
foreman, Ed Hickman, by notation in a daily maintenance list, that the dust samples had been out
of compliance and that resampling would occur the following week. 16 FMSHRC at 842; Tr.
186-87; Ex. R-5, at 2. He listed various maintenance measures that needed to be taken and, as
was his daily practice, attached a list of dust control measures that were to be performed. Tr.
186-88, 197; Exs. R-4, R-5. On June 29, Warrington instructed Hickman to "check everything
out that has to do with dust" and "[m]ake it shine." 16 FMSHRC at 842. The longwall crew
then engaged in various routine maintenance and repair measures, including the maintenance and
repair of the stage loader baffle, and changing bits on the longwall shearer. Id. at 842-43; Tr.
193-94, 242-51, 260-61, 268-69, 286. On July 1, 2, and 3, Energy West took samples in the 4th
West section during five·consecutive shifts and submitted them to MSHA. 16 FMSHRC at 839;
Ex. M-4; Tr. 164. On July 10, MMU 015-0 was moved to the 11th Right section of the mine. 16
FMSHRC at 839, 843, 844.
On July 15, during a regular inspection, MSHA Inspector Fred Marietti was called from
the mine to his field office to examine the results of the abatement samples. Id. at 837-38. They
showed an increase in dust concentration to 2.3 mg/m3 • Id. at 838.
Inspector Marietti returned to the mine and issued a section 104(b) failure to abate order
to Energy West. He determined that an extension in abatement time was not warranted because
of the increase in dust levels, the frequency of the cited type ofMMU going out of compliance,
and the operator's failure to incorporate into its ventilation plan actions it previously had taken to
bring such equipment into compliance. Id. at 840, 847-48; Tr. 36-37.
Energy West increased air velocity and water pressure and added a spray bar to MMU
015-0. Tr. 378. The order was terminated after three samples taken by MSHA showed an
average dust concentration for MMU 015-0of1.8 mg/m3• Order No. 3850746-02; Tr. 50-52 .

.

At the hearing, Energy West conceded that it had violated section 70.1 OO(a) as alleged in
the citation but disputed that the violation was S&S and challenged the failure to abate order.
The judge granted the Secretary's motion to amend the citation to delete the S&S allegation
based on affidavits submitted by Energy West that the miners exposed to the violative condition
had been wearing RA CAL airstream helmets, a ty.pe of personal protective equipment that the
judge found "provide[s] a virtually dust-free air supply to miners, reducing respirable dust
exposure to insignificant levels." 16 FMSHRC at 837, 843.

567

The judge concluded that the inspector had not abused his discretion in issuing the failure
to abate order. Id. at 844. The judge agreed that an extension was not warranted given the
results of the most recent sampling, the operator's history of excessive dust; a lack of diligence in
the operator's efforts to control dust, and the fact that the operator failed to incorporate into its
ventilation plan dust control measures previously taken to achieve compliance. Id. at 844-45,
847-49. Accordingly, the judge affirmed the citation and order and assessed a civil penalty of
$3,000, finding that the violation involved high gravity due to the risk of pneumoconiosis. Id. at
849-50.
Energy West filed a petition for discretionary review, which challenged the judge's
affinnance of the failure to abate order and his penalty assessment.
II.
Disposition
A.

Failure to Abate Order
·,

Energy West,~gues that the judge erred in finding that the order was valid because
Inspector Marietti failed to consider whether any circumstances warranted an extension in
abatement time. E.W. Br. at 12-16. It contends that it took extensive abatement measures to
achieve compliance and refers to various maintenance and repair measures that were made with
respect to the longwall, the RAM survey, attempts to increase air on 4th West, meetings relating
to the excessive dust levels, repositioning miners, and the longwall move from 4th West to 11th
Right. Id at 17-18. The Secretary argues that substantial evidence supports the judge's
determination that the inspector did not abuse his discretion in determining that the time for
abatement should not be extended. S. Br. at 4-17 & n.5. He asserts that many abatement
measures relied upon by the operator to show its diligence consisted of routine maintenance that
the operator would have performed even if its sample results had been in compliance. Id. at 1012. In reply, Energy West asserts that the Secretary failed to recognize that the dispositive issue
is the adequacy of the inspector's efforts to determine whether an extension was warranted.
E.W. Reply Br. at 1-6.
In contesting a section 104(b) order, the operator may challenge the reasonableness of
the time set for abatement or, as here, the Secretary's failure to extend that time. Clinch.field
Coal Co., 11 FMSHRC 2120, 2128 (November 1989), citing Old Ben Coal Co., 6 IBMA 294,
306-07 (1976); US. Steel Corp., 7 IBMA 109, 116 (1976); Youghiogheny & Ohio Coal Co., 8
FMSHRC 330, 338-39 (March 1986) (ALJ). Section 104(b) of the Mine Act provides:
'

I

If, upon any follow-up inspection of a coal or other mine, an
authorized representative of the Secretary finds ( 1) that a violation
described in a citation ... has not been totally abated within the
period of time as originally fixed therein or as subsequently

368

extended, and (2) that the period of time for the abatement should
not be further extended, he shall determine the extent of the area
affected by the violation and shall promptly issue an order
requiring ... all persons . . . to be withdrawn from ... such
area ....
30 U.S.C. § 814(b). The Act does not address the extent of an inspector' s inquiry in making the
determination of whether abatement time should be extended. Nor is the extent of inquiry
addressed in legislative history. See S. Rep. No. 181, 95th Cong., 1st Sess. 30 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History ofthe Federal Mine Safety and Health Act of 1977, at 618 (1978); H.R. Rep.
No. 563, 9lst Cong., 1st Sess. 8, 31 (1969), reprinted in Senate Subcommittee on Labor,
Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the
Coal Mine Health Safety Act of 1969, at 1038, 1061 (1975) ("Coal Act Legis. Hist."); S. Rep. No.
411, 91 st Cong., 1st Sess. 3 7, 89, reprinted in Coal Act Legis. Hist. at 163, 215.
The Commission has recognized that the "Secretary . .. possesses enforcement discretion
to extend the time for abatement if [he] believes it reasonable .... " Clinchfield, 11 FMSHRC at
2132. Therefore, in revh~wing an operator's challenge to the Secretary's failure to extend
abatement time, the Cominission considers whether the inspector abused his discretion in issuing
the order. The Commission has noted that "abuse of discretion" has been found when "there is
no evidence to support the decision or if the decision is based on an improper understanding of
the law." Utah Power & Light Co., 13 FMSHRC 1617, 1623 n.6 (October 1991), quoting
Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir. 1985).
We conclude that substantial evidence supports the judge's determination that Inspector
Marietti did not abuse his discretion when he issued the order.6 The judge found, and substantial
evidence supports his finding that, prior to determining "that the period of time for the abatement
should not be further extended," Inspector Marietti considered the fact that, during the three
week abatement period, excessive dust concentrations had not diminished but had, in fact,
increased; that the number of individual samples out of compliance had increased from two out
of five to three out of five; and that Energy West had been cited frequently for failure to comply

6

The Commission is bound by the terms of the Mine Act to apply the substantial
evidence test when reviewing an administrative law judge's factual determinations. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). The term "substantial evidence" means "such relevant evidence as a
reasonable mind might accept as adequate to support [the judge's] conclusion." Rochester &
Pittsburgh Coal Co., 11FMSHRC2159, 2163(November1989), quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938). While we do not lightly overturn ajudge's factual
findings, neither are we bound to affirm such determinations if only slight or dubious evidence is
present to support them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293
(6th Cir. 1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980).

569

with section 70.lOO(a).7 16 FMSHRC at 840, 845, 848, 849; Exs. M-3, M-4, M-6; Tr. 35-36.
In addition, substantial evidence supports the judge's finding that Energy West "made
only a minimal and inadequate effort to control dust." 16 FMSHRC at 847. Many of the actions
cited by Energy West as evidence of diligence consisted of maintenance that the operator would
have performed in any event. Warrington attached a list of dust control measures to his
maintenance report every night, and those measures were routinely performed. Tr. 186-87, 197.
Those measures included adjusting air controls and volumes, checking scrubber filters at the
stage loader, and checking sprays. Ex. R-4. In addition, Energy West witnesses testified that
other measures that had been taken were considered routine, including the maintenance and
repair of the baffle (Tr. 193), watering the roadways (Tr. 360), changing bits on the longwall
shearer (Tr. 260), and changing scrubber filters (Tr. 309). Although the operator was aware that
conditions were becoming more difficult in 4th West as mining progressed, it chose to rely on
existing dust controls without making changes to engineering controls. Tr. 195, 236, 362, 368.
We also reject Energy West's argument that the judge erred in failing to consider its
move of the MMU as part of its abatement efforts. 8 PDR at 14. Apparently the inspector was
unaware of the movement ofMMU 015-0 at the time he issued the order. 16 FMSHRC at 844;
Tr. 47. If the MMlJ, was moved as a further abatement measure, that fact could have been
brought to MSHA's attention at the time of the move. We perceive no obligation on the

7

Chairman Jordan observes that in her dissent, Commissioner Holen contends that "the
Commission's requirement of an investigation into conditions at the mine before issuance of an
imminent danger order applies with greater force to an inspector' s exercise of discretion in
issuing a failure to abate order." Slip op at 14-15. Unlike section 104(b), however, section 107
requires the inspector to "determine the extent of the area of such mine throughout which the
danger exists" and to include in the order "a detailed description of the conditions or practices
which cause and constitute an imminent danger and a description of the area of the coal or other
mine from which persons must be withdrawn and prohibited form entering." 30 U.S.C. § 817(a),
(c). Therefore, she does not agree with her dissenting colleague' s contention that section 104(b)
imposed an obligation on Inspector Marietti to "ascertain Energy West' s efforts to abate the
citation or the facts and circumstances surrounding the operation of the MMU" before issuing an
order under that provision. Slip op. at 15.
8

The citation and order arose from samples taken pursuant to 30 C.F.R. § 70.207, which
requires the sampling ofMMUs, rather than 30 C.F.R. § 70.208, which requires sampling of
designated areas. Under section 70.207, MSHA tracks the MMU itself, rather than its location,
to evaluate the cutting characteristics and dust controlling capabilities of the equipment. Tr. 65.
Thus, the subject of the sampling was MMU 015-0, rather than its location.

570

inspector's part to ascertain, before issuing the order, that the MMU had not been moved.9
Thus, we conclude that substantial evidence supports the judge's determination that
Energy West failed to act diligently.

In sum, we conclude that the judge's determination that the inspector did not abuse his
discretion in issuing the failure to abate order is supported by substantial evidence. Accordingly,
we affirm the judge's determination upholding the order.
B.

Assessment of Civil Penalty

The judge assessed a civil penalty of $3,000, finding that the gravity of the violation of
section 70. l OO(a) was high, given the risk of pneumoconiosis and that such violations are
generally considered to be S&S. 16 FMSHRC at 850. Energy West argues that the judge erred
because he ignored evidence demonstrating a decreased exposure to respirable dust. E.W. Br. at
23.
In considering the gravity of a violation, the Commission has generally considered the
likelihood of an occurr6i;ice of the hazard against which a standard is directed and the severity of
the resulting injury. See 'P enn Allegh Coal Co., 4 FMSHRC 1224, 1227 (July 1982); Pyro
Mining Co., 6 FMSHRC 2089, 2092 (September 1984). Although the gravity penalty criterion
and a finding of S&S are not identical, they are frequently based upon the same or similar factual
circumstances. Quin/and Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (September 1987).
Here, the longwall crew members affected by the violative conditions had been wearing
personal protective equipment, the Secretary withdrew his S&S allegation because of this fact,
and the judge found that those helmets "provide a virtually dust-free air supply to miners,
reducing respirable dust exposure to insignificant levels." 16 FMSHRC at 837, 843. There is no
indication in the judge' s analysis that he considered this evidence in determining that the
violation was of high gravity or in assessing the civil penalty. 10 Accordingly, we vacate the
penalty and remand for consideration of that evidence in the assessment of an appropriate civil

9

Chairman Jordan notes that, in any event,.Energy West's abatement sampling on July
1-3, before it moved the longwall, along with the evidence describing the severe conditions the
operator was experiencing in 4th West (Tr. 143-44) suggests that the move was not part of an
attempt to abate the dust violation.

° Chairman Jordan notes that there is also no indication that, in making his gravity

1

finding, the judge considered the evidence relied upon by her dissenting colleague,
Commissioner Marks.

571

penalty. 11

III.
Conclusion
For the reasons discussed above, we affirm the judge's determination that the inspector
did not abuse his discretion in issuing the section 104(b) order. We vacate the penalty and
remand for reassessment.

\

11

The judge stated that the Secretary had proposed a civil penalty of$500. 16 FMSHRC
at 836. In fact, the Secretary had proposed a.civil penalty of$3,105 and it appears that the
penalty proposal was not reduced after the Secretary withdrew the S&S allegation. S. Proposal
for Penalty at 2; S. Post-Hrg. Br. at 1; PDR at 7; E.W. Br. at 11.

572

Commissioner Marks, concurring in part and dissenting in part:
The majority has voted to affirm the judge's determination to uphold the subject section
104(b) order. I concur.
The majority has voted to vacate the judge's civil penalty assessment of$3,000,
concluding that the judge failed to properly analyze the gravity criterion of section 11 O(i), 30
U.S.C. § 820(i). I disagree and therefore dissent. The judge's determination that the gravity of
the violation was high is correct and supported by substantial evidence. I therefore affirm his
high gravity conclusion..
In concluding that the gravity of the violation was high, the judge stated:
The gravity of the violation is high since respirable coal
dust can cause pneumoconiosis over a period of time. Generally,
such a violation is considered to be S&S.

16 FMSHRC at 850. The judge's determination is correct and entirely consistent with
Commission case law recognizing that any violation of section 70.1 OO(a) is serious and
presumptively S&S. Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986), aff'd 824 F.2d
1071 (D.C. Cir. 1987).
However, the majority bases their vacation of the judge's high gravity conclusion on
their determination that the judge failed to consider the following evidence: that affected
longwall crew members had been wearing helmets; that the Secretary withdrew his S&S
allegation because of the helmet use; and that the judge found that the helmets provided a dustfree air supply to miners that reduced the dust exposure to insignificant levels.
The majority's reliance upon the foregoing is misplaced, and its conclusion that affected
miners wore helmets is in error.
My review of the record precludes me from determining that no miner was exposed to the
dangerous respirable dust levels that gave rise to the subject violation. Energy West's expert,
Thomas Hall, admitted that during a relevant visit to the mine he observed maintenance workers
on the subject section who were not wearing a helmet. Tr. 416-17. Garth Nielsen, Energy
West's Superintendent at the subject Cottonwood Mine, conceded that a significant number of
miners, 10%, do not wear the helmets. Tr. 140. This was also confirmed by construction
foreman De1U1is Ardohnin who conceded that some of his mechanics do not wear the helmets.
Tr. 252.
The majority's reliance on the fact that t4e Secretary withdrew his S&S allegation is
misplaced. My review of the record causes me to conclude that the Secretary has failed to
adequately explain the basis for its withdrawal of the S&S allegation, and therefore, I certainly

573

see no reason why the Commission should further compound the error by relying on that action
to support its vacation of the judge's independent determination.
In support of bis motion to withdraw the S&S allegation, the Secretary relied on two
affidavits executed by two longwall foremen employed by Energy West. Ex. M-2. The
affidavits purport to assure the Secretary that no miners were exposed to the violative high levels
ofrespirable dust during the time ofthe sampling. See Tr. 13. The affidavits are significant only
because of what they do not state. There is no indication that all miners who may have worked
in the vicinity of the cited MMU, during the time that the violative condition existed (almost four
weeks) wore helmets. Rather, the affiants merely state that "[d]uring June 1992 . . . all members
of [their] crew ... on the 4th West longwall section wore RACAL airstream helmets at all
times." Ex. M-2, at I & 2. There is no indication that the members of the two crews, supervised
by affiants, were the only miners who worked in the vicinity of the cited MMU. Moreover, the
vague reference to June 1992, does not cover the relevant time period, that is the time that
elapsed from June 25, 1992, the day the citation was issued, to the day the subject order was
terminated, July 22, 1992.
The logic jus,tifying the Secretary's acquiescence on S&S is further obscured when one
considers his counsel~s statement to the judge made contemporaneously with the motion to
withdraw the S&S designation:
[T]here may be some testimony later today with regard to the
wearing of air stream belmuts (sic) at this mine, and that's going to
go to the seriousness of the violation with regard to the penalty and
the B order . . . . [b]y changing this designation to a non S and S,
the Secretary in no way gives up MSHA's position that even a
small exposure to respirable dust is a serious violation, and that
particular issue is presently on appeal before the Commission in a
Consolidation Coal case, and I don't wish to address that issue in
this particular case.

Tr. 13-14. (emphasis supplied). In response to a question from the judge, the Secretary's
counsel further stated:
[T]he issue I believe that's before the Commission ... is how
much of an exposure (sic). We now have a case in front of the
Commission where the exposure 'was just brief. Someone on
the section may have taken their respirator off or come on the
section to do maintenance work for a short time, and that's the
issue that's been raised by Consolidation Coal and that's the issue
on appeal, and that may have b.een an issue here but I don't want
to address it in this case.

574

Tr. 14-15 (emphasis supplied).
Based on the foregoing, it is certainly clear why the judge would not have placed any
reliance, as I don't, upon the Secretary's withdrawal of the S&S designation. As described
above, the evidence does indicate that not all miners availed themselves of the helmets.
Moreover, there is no reliable evidence establishing the efficacy of the helmets. Energy
West's own expert, Hall, provided testimony that failed to establish the precise effect use of the
helmet would have on the miner's respirable dust exposure. He cited "workplace protection
factor[s]" ranging from 250 to 10. Tr. 403, 426. However, the record does not contain any
meaningful explanation of the significance of those numbers or their relationship to respirable
dust exposure. Further, the evidence does indicate that the helmets' benefit, whatever that may
be, could be nullified, if a miner wearing a helmet had temporarily raised the shield during a dust
"face burst." Tr. 408. Also, Hall conceded that the effectiveness of the helmet is conditioned
upon a variety of factors, including the batteries, gaskets, flow rate, and the type of work the
miner is performing. Tr. 412-13. No evidence regarding those factors was offered.
For the foregoing reasons I conclude that substantial evidence supports the judge's
gravity conclusion, and. I therefore affirm it.

Marc Lincoln Marks, Commissioner

575

Commissioner Holen, concurring in part and dissenting in part:
I agree that, given the disposition of the majority, the penalty assessed 1 by the judge
should be vacated and that, on remand, he should consider evidence in the record that he ignored
regarding the gravity of the violation.2 Slip op. at 7-8. I respectfully dissent, however, from their
opinion that the judge's decision upholding the order should be affirmed. Slip op. at 7. I would
reverse.
Factual Background
The facts surrounding the instant section 104(b) order, 30 U.S.C. § 814(b), are largely
undisputed. On June 25, 1992, the Mine Safety and Health Administration ("MSHA") issued a
section 104(a) citation, 30 U.S.C. § 814(a), to Energy West, as a result of air sampling that
revealed an average respirable dust concentration of 2.2 milligrams of dust per cubic meter of air
("mg/m3") for the designated occupation of longwall operator on mechanized mining unit
("MMU") 015-0, which was then located in the 4th West Longwall section of the Cottonwood
mme. Ex. M-3; Ex. R-2.
Following the'<;itation, Energy West took numerous actions to lower respirable dust in the
4th West section. 16 FMSHRC at 841. On June 26, Energy West's chief safety engineer, Randy
Tatton, immediately met with mine managers to develop a corrective action strategy. Id.; Tr.
328. On June 29, Tatton directed one of his safety engineers to evaluate existing controls with a
real time aerosol monitor ("RAM") to ensure that all dust controls were in place and functioning
properly. 16 FMSHRC at 841; Tr. 329. Based on the evaluation, it was recommended that the
intake air course and stage loader be checked for dust generation problems. 16 FMSHRC at 842;
Tr. 230-31. The RAM survey also revealed that dust levels rose significantly when the longwall
shearer cut through rock in the mine roof. 16 FMSHRC at 842; Tr. 227-28. Tatton and Mine
Superintendent Garth Nielsen attempted to divert more air into the 4th West section but were
unsuccessful. 16 FMSHRC at 841; Tr. 329-35.
Also on June 26, Energy West's equipment overhaul coordinator, Bud Warrington, put
miners in the section on a dust control alert. 16 FMSHRC at 842. He included special
instructions on his maintenance list to repair the baffle on the stageloader in addition to a list of
maintenance measures designed to control dust that had been previously prepared for the
maintenance foreman, Ed Hickman. 16 FMSHRC at 842; Tr. 178-84, 186-88; Exs. R-4 and -5.

1

The penalty is for the underlying violation, not the failure to abate order.

2

Commissioner Marks, dissenting on the penalty issue, concludes that the Secretary
failed to adequately explain the basis for withdrawing his S&S allegation. Slip op. at 9-10.
Commission precedent, however, establishes that the Secretary has unreviewable discretion to
vacate citations. RBK Construction, Inc., 15 FMSHRC 2099, 2101 (October 1993).

576

On June 29, Warrington repeated the baffle repair instructions, stated that sampling would occur
on Monday (July 1), and instructed that everything with regard to dust be checked. 16 FMSHRC
at 842; Ex. R-5 at 2. The longwall maintenance crew changed the bits on the longwall shearer,
checked and repaired sprays, cleaned and washed shields, and changed dust filters. 16 FMSHRC
at 842-43; Tr. 242-51, 287-90, 299-305. Hickman assumed personal responsibility to see that
corrective actions were carried out thoroughly. 16 FMSHRC at 842; Tr. 287.
On July 1, 2, and 3, Energy West took abatement samples for MMU 015-0 and submitted
them to MSHA's Pittsburgh laboratory. 16 FMSHRC at 839; Tr. 164; Ex. M-4. On July 10,
because of the presence of sandstone in the coal seam and the attendant dust when the miner cut
into it, Energy West removed the MMU from the 4th West section with a hundred feet of coal
remaining and moved it two miles away, to the 11th Right section. 16 FMSHRC at 839, 843,
844; Tr. 131-33, 144, 147, 164. Conditions in that section were significantly different--the area
was wetter, thus generating less dust. 16 FMSHRC at 843; Tr. 147-49, 293-94.
On July 15, MSHA Inspector Fred Marietti, while conducting a regular inspection of the
mine, was called by his supervisor to return to the MSHA field office to review the laboratory
report of Energy West's abatement samples. 16 FMSHRC at 837-38; Tr. 28-29. The sampling
yielded an average dust concentration of 2.3 mg/m3 . 16 FMSHRC at 838; Tr. 32; Ex. M-4.
After reviewing the restilts, the inspector returned to the mine and immediately issued a section
104(b) failure to abate order, Tr. 33-34. The order stated that the time for abatement should not
be extended because of "an obvious lack of effort by the operator to control the respirable dust."
Order No. 3850746. The language was taken from the Coal Mine Inspector's Manual. 16
FMSHRC at 841; Tr. 53-55. Marietti based his determination not to extend the abatement time
on the fact that dust levels had increased relative to the prior cited sample results, on previous
conversations with other inspectors to the effect that the type of mining unit involved had been
out of compliance before, and on Energy West's failure to incorporate into its ventilation plan
actions that it had taken to bring mining units into compliance. 16 FMSHRC at 840; Tr. 34-37.
Marietti did not inspect the longwall or enter the mine before he issued the order. 16 FMSHRC
at 841. Nor did he make any inquiries concerning why the sample readings may have increased
or concerning the operator's efforts to abate the citation. Id.; Tr. 4 7-48. When he wrote the
104(b) order, Marietti had no specific knowledge of sampling results from the MMU 015-0 prior
to the June 1992 citation. Tr. 48. The inspector entered the mine, observed the MMU, and spoke
with miners regarding compliance measures only after he had decided to issue the.order. Tr. 40.
In order to lift the order, Energy West increased air velocity and water pressure and added
sprayers to the MMU. Tr. 377-78. Inspector Mari'etti then allowed Energy West to resume
production. Tr. 378; Ex. M-5. The order was terminated on July 22, after three samples taken by
MSHA showed an average concentration of 1.8 mg/m3• Tr. 44, 51-52; Ex. M-5.

577

Analysis
Section 104(b) provides that an inspector shall issue an order requiring all persons to be
withdrawn from an area affected by a violation, if, during a follow-up inspection, he finds:
( 1) that a violation described in a citation ... has not been totally
abated within the period of time originally fixed therein or as subsequently
extended, and
(2) that the period of time for the abatement should not be further
extended ....
30 U.S.C. § 814(b). Thus, the statute expressly requires an inspector to make a determination
that a violation has not been timely abated and that an extension is not warranted before issuing
an order.
In contesting a section 104(b) order, an operator may challenge the reasonableness of the
time set for abatement or the Secretary' s refusal to extend that time. Clinchfield Coal Co., 11
FMSHRC 2120, 2128 (November 1989) (citations omitted). The Commission's focus in such a
proceeding is on wnether the inspector acted reasonably in determining that the abatement time
should not be extende·d. See Martinka Coal Co., 15 FMSHRC 2452, 2456 (December 1993)
(having determined a hazard existed, inspector acted reasonably in not extending abatement
time). The Commission has set forth its test for whether an inspector acted reasonably or abused
his discretion in issuing a withdrawal order in cases addressing imminent danger withdrawal
orders. See, e.g., VP-5MiningCo., 15FMSHRC 1531 , 1537(August 1993)(Secretarymethis
burden of proving that inspector reasonably concluded hazard was imminent); Island Creek Coal
Company, 15 FMSHRC 339 (March 1993). Island Creek involved an inspector's issuance of an
imminent danger order under section 107(a) of the Mine Act, 30 U.S.C. § 817(a), which provides
that an inspector may require the removal of miners from areas in which conditions exist that
could cause death or serious physical harm before abatement (see 30 U.S.C. § 802G)). 15
FMSHRC at 339-40, 345.
Commission precedent has emphasized that, because an inspector must decide quickly
and without delay whether a hazard presents an imminent danger, Island Creek, 15 FMSHRC at
346-47, he "must have considerable discretion in issuing imminent danger orde~s," id. at 348,
citing Rochester & Pittsburgh, 11 FMSHRC 2159, 2164 (November 1989). The Commission
has also held, however, that such discretion, even in imminent danger situations, is not without
limit. An inspector must make a reasonable investigation of the surrounding facts. "[A] judge
'should make factual findings as to whether the inspector made a reasonable investigation of the
facts . . . and whether the facts known to him, or reasonably available to him, supported issuance
of the ... order."' Island Creek, 15 FMSHRC at 346, quoting Wyoming Fuel Co., 14 FMSHRC
1282, 1292 (August 1992). Clearly, conditions raising the possibility of an imminent danger
pose more compelling circumstances for imm.ediate inspector action. Thus, the Commission's
requirement of an investigation into conditions at the mine before issuance of an imminent

578

danger order applies with greater force to an inspector's exercise of discretion in issuing a failure
to abate order.
Further, MSHA's Program Policy Manual ("Manual'') states that an inspector, in
detennining whether an extension of abatement time is justified, is to engage in a review process
that involves factual considerations other than the existence of a continuing violation. It provides
in part:
Upon expiration of the time fixed for abatement, the inspector
should review the circumstances, and if circwnstances so justify,
extend the abatement period. If no extension of time is justified,
and the violation is unabated, the inspector shall issue a withdrawal
order under section 104(b).
Volwne I, at 15 (July 1, 1988) (emphasis added) . Although the Manual is not considered
binding, the Commission has referred to it as evidence ofMSHA's policies and practices. See
Dolese Bros. Co., 16 FMSHRC 689, 693 n.4 (April 1994) (citations omitted).
The judge determined that Inspector Marietti had not erred in issuing the failure to abate
order. 16 FMSHRC at 848-49. He found that the increase in dust concentrations indicated the
operator had not made an "effective" effort to correct the violation. Id. at 849. As to Energy
West' s argument that the inspector had abused his discretion by failing to consider whether
circumstances warranted an extension of the abatement period, the judge held that, in light of the
"continuing dust violation from mid-June until early July 1992 . . . no circumstances existed that
would cause the inspector to conclude" an extension was warranted. Id at 844.
The judge erred, in my opinion, in finding that a continuing violation alone is sufficient
to support a determination that an extension of abatement time is not warranted and in failing to
address the reasonableness of the inspector' s inquiry. See 30 U.S.C. § 814(b)(2); Island Creek,
15 FMSHRC at 346-47. The judge's post hoc rationalization, based on the trial record, that "no
extension of the abatement period would have been justified," 16 FMSHRC at 844, cannot
correct the inspector's failure to inquire into current mining conditions prior to issuing the
section 104(b) order. 3
The inspector looked only at the laboratory results for the abatement dust samples and the
June samples that were cited. He did nothing to ascertain Energy West's efforts to abate the
citation or the facts and circwnstances surrounding'the operation of the MMU, but copied form
language from a manual to charge Energy West with "an obvious lack of effort" to control
respirable dust. Energy West responded to the citation by taking general dust control measures

3

Much of the Secretary's brief addresses whether substantial evidence supports the
judge 's determination that the abatement time should not be extended. See S. Br. 6-17.

5 79

and it took steps to address particular problems with its equipment. The inspector did not go to
the mine, other than to deliver the completed order, or talk to anyone at the mine prior to issuing
the order. He did nothing to ascertain whether miners were subjected to a hazard (they were
wearing personal protective equipment), see Tr. 52; Ex. M-2,4 or that the MMU was no longer
located in the 4th West section, but had been moved to a less dusty area two miles away. All
this information was pertinent to the matter of whether the abatement tirr.e should have been
extended. See Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2163 (inquiry in issuing
imminent danger order is whether the condition would pose a hazard, given continued normal
mining operations).5
The majority opinion affirms the judge on substantial evidence grounds, rather than
focusing on whether the inspector abused his discretion and whether he made a reasonable
investigation of the facts. Slip op. at 5-7. In simply reviewing the judge's factual
determinations, that opinion implicitly approves his erroneous analysis.
On this record, I cannot say Inspector Marietti acted reasonably. Accordingly, I would
vacate the order and reverse the judge.
\

Arlene Holen, Commissioner

4

The Secretary amended the citation to delete the "S&S" designation because all miners
exposed to the cited respirable dust levels were wearing personal protective equipment.
16 FMSHRC at 837.
5

As to the inspector's awareness that Energy West had not incorporated into its
ventilation plan steps it had taken in addressing respirable dust citations, the appropriate response
would have been through the ventilation plan approval process. See 30 C.F.R. § 75.370. While
the contents of a plan are the result of consultation between the Secretary and the operator (see,
e.g., Penn Allegh Coal Co., 3 FMSHRC 2767, 2770-73 & n.8 (December 1981)), "the Secretary
must independently exercise his judgment with 'respect to the content of such plans in connection
with his final approval of the plan." UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989),
quoting S. Rep. No. 181 , 95th Cong. 1st Sess. 25 (1977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal
Mine Safety and Health Act of 1977, at 613 (1978). 30 C.F.R. § 75.370(f) provides for review by
the Secretary of ventilation plans every six months to assure their suitability to current mining
conditions.

580

Distribution:
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Thomas A. Stock, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
W. Christian Schumann, Esq.

Susan E. Long, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin

Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 6003
Washington, D.C. 20006

581

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

April 24, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 94-148-R
WEST 94-303

V.

TillJNDER BASIN COAL COMPANY

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

DECISION

BY: Jordan, Chairman; Doyle, Holen and Riley, Commissioners
This consolidated contest and civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et. seq. (1994) ("Mine Act or Act"), involves a
citation issued by the Department of Labor's Mine Safety and Health Administration ("MSHA")
to Thunder Basin Coal Company ("Thunder Basin") alleging a violation of section 109(a) of the
Act, 30 U.S.C. § 819(a), because Thunder Basin failed to post an order of temporary
reinstatement on the mine bulletin board. 1 After receiving cross-motions for swnmary decision,

1

Section 109(a) provides:

At each coal or other mine there shall be maintained an office
with a conspicuous sign designating it as the office of such mine. There
shall be a bulletin board at such office located at a conspicuous place
near an entrance of such mine, in such marmer that orders, citations,
notices and decisions required by law or regulation to be posted, may be
posted thereon, and be easily visible to all persons desiring to read them,
and be protected against damage by weather and against unauthorized removal.
A copy of any order, citation, notice or decision required by this [Act] to be
given to an operator shall be delivered to the office of the affected mine,

or

582

Administrative Law Judge Arthur J. Amchan issued a Swnmary Decision in favor of Thunder
Basin and vacated the subject citation. 16 FMSHRC 1142 (May 1994) (ALJ). For the reasons
that follow, we affirm, in result, the judge's determination that section 109(a) of the Act was not
violated.

I.
Factual and Procedural Background
On November 2, 1993, Judge Amchan issued an order of temporary reinstatement
requiring Thunder Basin to temporarily reinstate three discharged miners at its Black Thunder
Mine, located in Campbell County, Wyoming. On November 22, 1993, in response to a
complaint written pursuant to section 103(g), 30 U.S.C. § 813(g), MSHA Inspector James Beam
conducted an inspection of the mine to determine whether the November 2 temporary
reinstatement order had been posted on the mine bulletin board. 16 FMSHRC at 1142-43. When
he found that the order had not been posted, the inspector issued a citation alleging a violation of
section 109(a) of the Act. Id. at 1143. Thunder Basin concedes that the order had not been
posted but claims the A7t does not require posting of such orders.

.
\

The judge determined that no violation occurred. He concluded that the language of
section 109(a) is not clear on its face. Id. In analyzing the statutory language, the judge
determined that the last sentence of section 109(a) must be read in context with the rest of the
section: .. . " [h]ad Congress intended that all decisions ... be posted, it would not have
modified the second sentence . .. with the phrase 'required by law or regulation to be posted."'
Id. at 1143-44, quoting 30 U.S.C. § 819(a). The judge therefore concluded "that what must be
posted under the last sentence of section 109(a) are documents, that are required to be posted
pursuant to another statutory provision or by a regulation .... " Id. at 1144. The judge reasoned
that the documents referred to in section 109(a) do not include temporary reinstatement orders
from the Commission. Id.
The judge declined to accord deference to the Secretary's interpretation of section 109(a)
that the requirement to post Commission decisions is implicit. Id at 1146. He found no written
agency policy or interpretation regarding posting of Commission decisions. Id at 1145. Thus,
he concluded, " [a] subjective understanding of what the statute requires, which is not obvious
and has never been communicated to the public, is not an agency interpretation entitled to
deference under Chevron." Id. at 1146, citing Chevron USA. Inc. v. Natural Resources Defense

and a copy shall be immediately posted on the bulletin board of such mine
by the operator or his agent.
30 U.S.C. § 819(a).

583

Council, Inc., 467 U.S. 837, 842-43 (1984). The judge also determined that, even if section

109(a) requires posting of Commission decisions, a temporary reinstatement order, which "is in
the nature of an interim order" need not be posted. Id.

II.
Disposition
On review, the Secretary maintains that the second and third sentences of section 109(a)
have separate and distinct meanings, and that the decisions of the Commission are implicitly
included among the documents referred to in the third sentence of section 109(a). S. Br. at 5-6.
The Secretary argues that his interpretation of section 109(a) is consistent with the language and
purpose of the Act, and should be accorded deference. Id. at 4. The Secretary assigns error to
the judge's determination that posting was not required because the subject temporary
reinstatement order was only an "interim order," asserting that the subject order is a conclusive,
substantive, appealable order. Id. at 12. Finally, the Secretary states that, unless section 109(a)
is interpreted to include decisions issued by the Commission, the word "decision" in the third
sentence is rendered meaningless. Id. at 5-6 n. l. Thunder Basin argues that the only orders,
citations, notices or'tjecisions that are required to be given to an operator under the Act are those
issued by the Secretary. T.B. Br. at 7-8, 12.
The first inquiry in statutory construction is "whether Congress has directly spoken to the
precise question at issue." Chevron, 467 U.S. at 842. If a statue is clear and unambiguous, effect
must be given to its language. Id. at 842-43. Deference to an agency's interpretation of the
statute may not be applied "to alter the clearly expressed intent of Congress." K Mart Corp, v.
Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted). Traditional tools of construction,
including examination of a statute's text and legislative history, may be employed to determine
whether "Congress had an intention on the precise question at issue," which must be given effect.
Coal Employment Project v. Dole, 889 F. 2d 1127, 1131 (D.C. Cir. 1989) (citations omitted).
"In ascertaining the plain meaning of the statute, the court must look to the particular statutory
language at issue, as well as the language and design of the statute as a whole.,, K Mart, 486
U.S. at 291. (citations omitted). The examination to determine whether there is such a clear
Congressional intent is commonly referred to as a "Chevron I" analysis. Coal Employment
Project, 889 F. 2d at 1131. 2

2

If the statute is ambiguous or silent on a point in question, a second inquiry, a "Chevron
If' analysis, is required to determine whether an agency's interpretation of the statute is a
reasonable one. Coal Employment Project, 889 F. 2d at 1131.

584

Section 109(a), together with the three other sub·sections3 of section 109, entitled

3

Section 109(b) provides:
The Secretary shall (1 ) cause a copy of any order, citation, notice,
or decision required by this [Act] to be given to an operator to be mailed
immediately to a representative of the miners in the affected coal or
other mine, and (2) cause a copy thereof to be mailed to the public official
or agency of the State charged with administering State laws, if any,
relating to health or safety in such mine. Such notice, order, citation,
or decision shall be available for public inspection.

30 u.s.c. § 819(b).
Section 109(c) provides:
In order to insure prompt compliance with any notice, order, citation,
or decision issued under this [Act], the authorized representative of the
Secretary may deliver such notice, order, citation, or decision to an
agent of the operator, and such agent shall immediately take appropriate
measures to insure compliance with such notice, order, citation, or decision.
\

30 U.S.C. § 819(c).
Section 109(d) provides:
Each operator of a coal or other mine subject to this [Act] shall file
with the Secretary the name and address of such mine and the name
and address of the person who controls or operates the mine. Any
revisions in such names or addresses shall be promptly filed with the
Secretary. Each operator of a coal or other mine subject to this [Act]
shall designate a responsible official at such mine as the principal officer
in charge of health and safety at such mine, and such official shall .
receive a copy of any notice, order, citation, or decision issued under
this [Act] affecting such mine. In any case where the mine is subject
to the control of any person not directly involved in the daily operations
of the coal or other mine, there shall be filed with the Secretary the
name and address of such person and the name and address of a principal
official of such person who shall have overall responsibility for the
conduct of an effective health and safety program at any coal or other
mine subject to the control of such person, and such official shall receive
a copy of any notice, order, citation, or decision issued affecting any

585

"Posting of Orders and Decisions," sets forth specific requirements as to where, how, and to
whom documents are to be conveyed and how they are to be posted at mines. In section 109(a),
Congress required operators to post "any order, citation, notice or decision -required by this Act
to be given to an operator." The question to be answered is whether Congress intended to
include documents issued by the Commission when it referred to "order[s] . . . or decision[s]
required by this Act to be given to an operator." No provision in the Mine Act specifically
requires Commission decisions or orders to be given to an operator. The orders, citations,
notices and decisions issued by the Secretary, however, are subject to this explicit requirement.
See sections lOl(c), 104(a), (b), (d) and (e), 105(d) and 107(d) of the Mine Act, 30 U.S.C.
§§ 81 l(c), 814(a), (b), (d) and (e), 815(d) and 817(d). This distinction in itself would appear to
provide a sufficiently compelling indication that the decisions and orders referenced in section
109(a) were intended by Congress to include only those issued by the Secretary, and not the
rulings issued by the independent adjudicative body Congress established in section 113 of the
Act, 30 U.S.C. § 823.4
Any remaining doubt on this issue, however, is removed by reference to the service
requirement contained in section 109(b). That provision states: "The Secretary shall ( 1) cause a
copy of any order, ?itation, notice or decision required by this Act to be given to an operator to
be mailed immediat~ly to a representative of the miners in the affected coal or other mine, and
(2) cause a copy thereof to be mailed to the public official or agency of the State charged with
administering State laws, if any, relating to health or safety in such mine." (emphasis added).
The Secretary did not attempt to distinguish the application of section 109(a) from the
application of section I 09(b). If, as the Secretary urges, the phrase "any order, citation, notice or
decision required by this Act to be given to an operator" includes orders and decisions issued by
the Commission, not only would the operator be required to post those documents on the bulletin
board, as required by the last sentence of section 109(a), but the Secretary would be required, in
accordance with section 109(b), to "immediately" mail those same documents to the
representative of the miners, and appropriate state officials. 5 That Congress did not intend such

such mine. The mere designation of a health and safety official under
this subsection shall not be construed as making such official subject
to any penalty under this [Act].
30 U.S.C. § 819(d).
4

Contrary to the Secretary's assertion, decisions under the Mine Act are not limited to
those issued by the Commission. In certain instances, the Secretary is required to issue
decisions. 30 U.S.C. § 81 l(c).
5

We are reminded of the maxim, "be careful what you wish for." During FY 1995, the
Commission's Administrative Law Judges issued 4,837 final dispositions.

586

result is clear and the statute must be construed to effectuate that intent. The reference to
decisions and orders in the last sentence of section 109(a) unambiguously includes only those
decisions and orders "required by this Act to be given to an operator." (emphasis added). The
only provisions of the Act that require decisions and orders to be given to the operator pertain to
the decisions and orders issued by the Secretary.6 The second sentence of section 109(a), which
refers to "orders, citations, notices and decisions," does not impose a posting requirement but
specifies the manner in which posting is to be effectuated (i.e., "There shall be a bulletin
board ... located at a conspicuous place ... protected against damage by weather ... ). Id.
(emphasis added). Accordingly, we conclude that section 109(a) is clear on its face and does not
require the posting of temporary reinstatement orders on mine bulletin boards.

6

This is not to say that an operator will never be required to post a Commission
temporary reinstatement order. As Thunder Basin points out in its brief, the Secretary can seek
to incorporate the posting of the order as part of the relief to be granted under 30 U.S.C. § 815(c).
T. B. Br. at 8-9 n.14.

587

Ill.
Conclusion
For the foregoing reasons, the judge's summary decision is affirmed in result.7

Arlene Holen, Commissioner

es C. Riley, Commissioner

7

In light of our conclusion that the statutory provision is clear, we do not reach the
question of whether the Secretary's interpretation of section 109(a) of the Act is reasonable.

588

Commissioner Marks, dissenting:
The majority has concluded that the meaning of section 109(a) of the Act, 30 U.S.C.
§ 819(a) is clear and that the Secretary's interpretation is wrong. I disagree and therefore dissent.
I agree with the Secretary's view, that section 109(a) is ambiguotis. I also agree with the
Secretary's view, that the Commission should defer to the Secretary's interpretation if the
Commission concludes that his interpretation is reasonable. Accordingly, for the reasons that
follow, I conclude that section 109(a) requires the posting of Commission issued temporary
reinstatement orders. However, for reasons to be discussed, I believe the Secretary's failure to
provide Thunder Basin with sufficient notice of his interpretation requires that the citation be
vacated.
Section I 09(a) is ambi~uous
In determining that no violation occurred, my colleagues conclude that section 109(a) is
clear, and that it does not require posting of Commission temporary reinstatement orders. In so
doing, they do not address the question of deference to the Secretary.

In parsing the terins of section 109(a), the Secretary contends that the second sentence
reference to documents that are specifically "required by law or regulation to be posted," relates
to: notices of proposed rulemaking under section lOl(e) of the Act, 30 U.S.C. § 81 l(e); the
designation of miners' representatives specified under 30 C.F.R. § 40.4 (1995); or petitions for
modification filed pursuant to 30 C.F.R. § 44.9. S. Br. at 5. Whereas, sentence three refers to
different documents, ie., the Act "explicitly requires that documents referred to[,] be posted if
they are ' required by this Act to be given to the operator."' Id. The Secretary suggest that this
third sentence reference includes all citations and orders issued by the Secretary and given to the
operator pursuant to 30 U.S.C. §§ 814(a), (b), (d), (e), and 817(a). Significantly, the Secretary
also contends that, by implication, the provisions of the Act relating to the issuance of decisions
by the Commission are also included, (30 U.S.C. §§ 815(c)(2) and (c)(3), 823(d)(l),
823(d)(2)(B), and (d)(2)(C), and 823(e)). Id.
After rejecting the Secretary' s interpretation of section 109(a) the judge offered his own
interpretation of that section and in doing so effectively provided no independent meaning or
purpose to the third sentence. 16 FMSHRC at 1143-44; see S. Br. at 3, 6-7. He failed to
distinguish the limitation contained in sentence two, requiring the posting of
documents . . . required by law or regulation to be posted, from the condition set forth in
sentence three, requiring the posting of documents . . . required by this Act to be given to an
operator. In analyzing section 109(a) as a whole, he effectively combined the two sentences and
determined that the third sentence is limited in the same way as the second sentence. "Thus, I
conclude that what must be posted under the last.sentence [third] of section 109(a) are
documents, that are required to be posted pursuant to another statutory provision or by a
regulation." 16 FMSHRC at 1144.

589

Contrary to the judge and my colleagues (see slip op. at 5-6) , both parties seem to agree
that the second and third sentences have distinct and separate scopes. S. Br. at 3, 5-7; T.B. Br. at
11-12. However, the principle distinction between their respective positions -is that the Secretary
construes the third sentence, i.e., documents required to be given to the operator, to include, by
implication, Commission decisions. Because the Act does not expressly provide that such
decisions be given to the operator, Thunder Basin rejects the Secretary's interpretation and urges
a strict construction of the terms in section 109(a).
In my opinion, the Secretary's interpretation is reasonable. It gives effect to each
sentence in disputed paragraph (a), and is consistent with the overall purpose of section 109 to
ensure that miners, as well as operators, are informed about the health and safety conditions of
their work environment, and to ensure that the miners' participation in that process is facilitated
by informing them of the rights and protections provided to them under the law. See S. Br. at 8;
T.B. Br. at 12.
When distilled to its essence, Thunder Basin's assertions that the Secretary's
interpretation is ambiguous and unreasonable fall into two arguments. First, Thunder Basin
asserts that adoption 9f the Secretary's interpretation that Commission decisions are among the
documents "required :, .. to be given to an operator,'' would impose an affirmative duty upon the
Commission to "give" .and to "deliver" those documents, and that such duty is a usurpation of the
Commission's power to fashion "appropriate relief." T.B. Br. at 8-9.
In my opinion, adoption of a construction of section 109(a) consistent with the
Secretary's interpretation would in no way diminish or "usurp" the independence of the
Commission or its judges. Id. at 8. In fact, all decisions and orders presently issued by the
Commission and its judges are routinely "given" and "delivered" to the operator either directly,
or to its legal representative. See 16 FMSHRC at 1144. This is the established practice of the
Commission, notwithstanding the absence of express statutory authority, or the existence of a
procedural rule requiring such practice. 8 Thus, one could conclude that the statutory authority for
such practice is implicit. 9 Moreover, a recognition that such documents are to be routinely posted
would not affect the content of the document, or in any way limit the Commission's authority
under section 113, 30 U.S.C. § 823, to direct "other appropriate relief," including an order that a

8

The Commission's procedural rules do,. however, contain specific service requirements
regarding a judge's issuance of: an order on application for temporary reinstatement (Rule 45(e));
a subpoena (Rule 60(a)); and a summary disposition of proceedings (Rule 66(a)).
9

Beyond the legal arguments asserted, it is inconceivable to not draw that implication.
The Act is replete with narrowly drawn time fr..ames for filing actions and appeals which could
not be effected unless the Commission, like any other adjudicatory body in this country,
promptly issued and conveyed its determinations to the affected parties.

590

notice be posted. See T.B. Br. at 8-9 n.14. It merely would ensure that whatever the judge or
Commission decide, will be posted and made available to the miners.
Secondly, Thunder Basin argues that adoption of such an interpretation requiring the
posting of the temporary reinstatement order would not satisfy the two objectives underlying the
statutory posting requirements, which it asserts are to "notify miners . . . of proceedings .. . in
which they have a right to intervene and participate; and . . . to provide immediate notice ... of
present mining conditions that may pose a risk of danger or harm through exposure." T.B. Br. at
12; see also S. Br. at 8. In asserting that the posting of the temporary reinstatement order is
"unnecessary and superfluous" to satisfying the statutory objectives noted above, Thunder Basin
argues that those objectives are secured "where there is a miners' representative, whose duty it is
to provide miners with such notice." T.B. Br. at 13, 15.
Given Thunder Basin's unrelenting resistance to the miner representative rights mandated
by the Act, its attempt to draw support for its position by describing the benefit of having a
miners' representative is an astonishing display of cynicism. It also is unpersuasive. The
argument makes no provision for miners who work in mines where there is no representative.
Obviously, any "reasonable" statutory construction must apply to all miners. Furthermore, the
posting of a temporacy\reinstatement order may also serve to alert miners to an existing safety or
health risk. As we have· observed over the years, the garden variety discharge occurs after a
miner has reported the existence of an unsafe/unhealthy condition, or has refused to work in such
conditions. Because of the brief statutory time requirements, temporary reinstatement orders
ordinarily will be issued fairly close in time to the discharge. Thus, it is possible that at the time
temporary reinstatement is ordered, the conditions giving rise to the discharge will have
continued to exist and pose a risk to other miners. Moreover, there can be no question that the
posting of such an order vividly demonstrates the reach of the law, and reaffirms to the miners
the government's commitment to provide representation and relief to those who may have
suffered retaliation or discrimination because they have engaged in a protected activity.
Thus, Thunder Basin' s arguments fail to demonstrate that the Secretarial interpretation of
section 109(a) is unreasonable, or inconsistent with Congressional intent.
The Secretary's reasonable interpretation is entitled to deference
In declining to accord deference to the Secretary's interpretation of section 109(a), the
judge found that there was no written agency policy or interpretation regarding the posting of
Commission decisions. Indeed he concluded that "there is no agency 'interpretation' to which
deference must be paid." 16 FMSHRC at 1146. Thus, he concluded that a "subjective
understanding of what the statute requires, which is not obvious and has never been
communicated to the public, is not an agency interpretation entitled to deference under
Chevron." Id. at 1146, citing Chevron US.A. I'?c. v. Natural Resources Defense Council, Inc. ,
467 U.S. 837, 842-43 (1984).

591

Notwithstanding the record evidence indicating no prior enforcement of this
interpretation, the Secretary contends that in citing Thunder Basin it was pennissibly exercising
its delegated rulemaking powers as sanctioned by the Supreme Court and therefore its
interpretation is entitled to deference. S. Br. at 9-10, citing Martin v. OSHRC, 499 U.S. 144,
156-58 (1991) ("As we have indicated, the Secretary's interpretation is not undeserving of
deference merely because the Secretary advances it for the first time in an administrative
adjudication"). I find that the Secretary is correct in that position, and I therefore conclude that
deference should not be withheld. Deference should be accorded to a reasonable Secretarial
interpretation, i.e., "a permissible construction of the statute," even one the Commission might
not choose. 1 Chevron, 467 U.S. at 843. "'When the Secretary and the Commission disagree on
the interpretation of ambiguous provisions of the Mine Act, and both present plausible readings
of the legislative text, [the) court owes deference to the Secretary's interpretation."' Secretary of
Labor on behalf of Wamsley v. Mutual Mining, Inc., Nos. 95-1130 & 95-1212, slip op. at 7 (4th
Cir. April 3, 1996), quoting Secretary of Labor v. Cannelton Indus., Inc. , 867 F.2d 1432, 1433
(D.C. Cir. 1989). Thus, my colleagues should have determined that the Secretary' s interpretation
is reasonable and entitled to deference.

°

Thunder Ba~in did not receive adeQuate notice of the Secretary's interpretation
Notwithstanding the deference that I accord to the Secretary's interpretation of section
109(a), the issue of whether the operator was accorded adequate notice remains. "[T]he decision
to use a citation as the initial means for announcing a particular interpretation may bear on the
adequacy of notice, to regulated parties." Martin, 499 U.S. at 158. In Gates & Fox Co. v.
OSHRC, 790 F.2d 154 (D.C. Cir. 1986), the court, citing to no less than five other circuits,
indicated its agreement that agency interpretations, to which deference is owed, and for which a
penal sanction is at issue, must still pass constitutional due process muster in providing "fair
warning of the conduct it prohibits or requires." Id. at 156.
Given the absence of any rule, regulation, or written policy articulating the Secretary's
interpretation, as well as, the lack of any evidence that prior enforcement of the asserted
"unwritten policy" ever occurred, and in consideration of the precise wording of the statutory
provision, I conclude that Thunder Basin was not afforded fair notice of the Secretary's
interpretation of section I 09(a).
Accordingly, I would decide this case as the court recently did in the matter of General
Electric Co. v. EPA, 53 F.3d. 1324 (D.C. Cir. 1995). There the court determined that the
agency's interpretation of its regulations was entitled to deference, even "where the agency's

10

"The court need not conclude that the agency construction was the only one it
permissibly could have adopted to uphold the.construction, or even the reading the court would
have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. at
843 n.11 (citations omitted).

592

r~ading of the statute would not be obvious to 'the most astute reader."' Id. at 1327, quoting

Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 652 (D.C. Cir. 1991). However, because "the
interpretation is so far from a reasonable person's understanding of the regulations that they
could not have fairly informed [the regulated] of the agency's perspective," the finding of
liability was reversed. Id at 1330.

Marc Lincoln Marks, Commissioner

593

Distribution

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Laura Beverage, Esq.
Jackson & Kelly
1660 Lincoln Street, Suite 2710
Denver, CO 80264
Russell S. Jones, Esq.
ARCO Coal Company
555 17th Street
Denver, CO 80202
Administrative Law Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

594

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFI CE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 3, 1996

UNITED MINE WORKERS OF
AMERICA, LOCAL 1058,
DIST. 31
Complainant
v.

COMPENSATION PROCEEDING
Docket No. WEVA 95-262-C
Humphrey No. 7

CONSOLIDATION COAL COMPANY,
Respondent
DECISION

Appearances:

Judith Rivlin, Esq., United Mine Work ers of
America, Washington, DC, for Complainant;
Elizabeth Chamberlin, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Respondent .

Before:

Judge Fauver

This proceeding concerns a complaint for compensation
pursuant to the first sentence of § 111 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801, ~ ~ ., which
provides:
If a coal or other mine or area of such min e is closed by an
order issued under §§ 103, 104, or 10 7 , a l l miners working
during the shift when such order was issued who are idled by
such order shall be entitled ... to full compensation by the
operator at their regu lar raees of pay for t h e period they
are idled, but not more than the balance of such shift.
The United Mine Workers of America on behalf of Local Union
1 058, District 31, seek s compensation from Consolidation Coal
Company for miners it alleges were idled by a withdrawal order
issued by the Secretary of Labor under§ 1 03(k) o f t he Act during
the daysh ift on May 5, 1995. Responden t contends that § 1 1 1 does
not apply because the miners were idled by a management deci s ion
for economic reasons, not because of the withd rawal order .

595

Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of. Fact and
further findings in the Discussion below:
FINDINGS OF FACT
1. Respondent's Humphrey No. 7 Mine produces coal for sales
in or substantially affecting interstate commerce. The mine has
an elevator at each of its three portals, i . e~, Bowers Portal,
Mt. Morris Portal, and Sansone Portal.
It also has a rail entry
at Maidsville Pit Mouth, where coal is transported out of the
mine. Miners may enter or exit the mine at any of the four
locations. However, each miner is assigned to a portal where he
or she keeps clothing and regularly enters and exits the mine.

2. On May 5, 1995, about 8 a.m., the day shift miners
assigned to the Bowers Portal began entering the mine. The first
group used th~ elevator without incident. When the next group
was descending; the elevator malfunctioned by speeding up,
slowing down, and creating a "falling" or "floating" effect . A
miner pushed the emergency button, and the elevator stopped and
then returned to the surface .
3 . Primo Zini, master mechanic, examined the elevator while
officials for Respondent contacted Millar Elevator Company, a
service company that has a monthly maintenance agreement with
Respondent. Two Millar servicemen arrived at the mine about
9 a.m. and began trouble shooting the elevator . About 35 day
shift miners were at the Bowers Portal. Respondent directed them
to stand by to await repair of the elevator . Some of the miners
may have been given odd jobs to perform while waiting for the
repair of the elevator, but all of them remained on duty while
waiting.
4 . Based on Millar's belief that the problem would be
corrected shortly, Respondent decided to have the miners stand by
at Bowers Portal, rather than send them to another portal for
entry into the mine.
5 . Around 10:25 a.m . , believing the elevator was repaired,
Respondent directed the miners to get back on the elevator. They
did so. However, the elevator started down very slowly and then

596

would stop suddenly and speed up again, creating the same
"floatingn or ."fallingn effect that occurred earlier in the
morning. A miner pushed the emergency button and the elevator
came to a stop and returned to the surface. The miners were very
concerned for their personal safety, and co~plained to the
chairman of their safety committee, David Laurie. About 10:30
a.m., Mr. Laurie called Gary Asher, international safety
representative for UMWA, and informed him of the problems with
the elevator.
6. About 10:40 a.m . , Mr . Asher called Raymond Ashe, field
supervisor with MSHA, and informed him of the problems with the
elevator . Mr Asher stated that he would be filing a safety
complaint, and requested MSHA to issue a§ 103(k) order to
prevent use of the elevator pending MSHA's investigation. About
10:45 a.m., Mr. Asher called Respondent and issued an oral
§ 103(k) order preventing anyone from entering the elevator at
the Bowers Portal until MSHA conducted an investigation. Between
10:25 and 10:45 a.m., when the§ 103(k) order was issued,
Respondent and Millar tested the elevator and on one test run
brought out miners from the midnight shift who were waiting
underground.
7. Before the§ 103(k) order was issued, none of the union
officials, including the safety committee, and none of the day
shift miners had been informed by Respondent that the elevator
was being taken out of service. The day shift miners were not
informed by Respondent of the status of the elevator until
shortly before noon, when Respondent decided to send the day
shift miners home.
It paid the miners 4 hours reporting pay,
pursuant to collective bargaining agreement.
8. Under the collective bargaining agreement, Respondent
could send miners home early, but had to pay them a minimum of 4
hours reporting time or pay them for their actual hours on duty
if greater than 4 hours.
9 . The day shift miners who entered the mine before the
elevator's malfunction traveled to their assigned sites
underground and worked the entire shift.
10. While the day shift miners at the portal waited for
repair of the elevator, Respondent had the option of transporting

597

them to another portal for travel to . their job sites. However,
using another portal would have required a significant amount of
travel time and coordination of forces. A commercial bus company
would be contacted to transport the miners to the other portal .
To get the miners back to their underground work sites on the
Bowers side of the mine, several track-mounted personnel carriers
from the Bowers Portal would be transported underground to the
other portal. As a general rule, based on past experience, it
would take 2~ hours from the time the decision was made to
transport the miners to an alternative portal until they arrived
at their work sites underground. Another 2 hours would be
required to take them outside and back to their home portal by
the end of their shift.
11. MSHA Inspectors Ron Wyatt and Rocky Sperry arrived at
the mine around 12:50 p . m.
Following their investigation, MSHA
issued § 104(a) Citation No . 3317958 charging Respondent with a
violation of 30 C.F.R . § 50.10 for failure to immediately report
an accident to\ hoisting equipment . It also issued other
citations charging Respondent with violations of several safety
standards regarding the condition of the e l evator.
DISCUSSION WITH FURTHER FINPI NQS . CONCLUS I QNS

The UMWA contends that the day shift miners who were sent
home at noon on May 5 were idled by the§ 103(k) order, which
prohibited any personnel to enter the Bowers Portal elevator
until MSHA investigated the elevator malfunction.
Respondent contends that its decision to send the miners
home at noon was for business reasons and not caused by MSHA's
withdrawal order.
It contends that around 11:45 a . m. it decided
that there would not be enough time to send the miners to another
portal or to wait for repair of the elevator, and therefore sent
them home by noon.
It also contends that it had removed the
elevator from service around 10:35 a.m . , before MSHA's withdrawal
order at 10:45 a . m.
The Commission has held that the application of § 111 should
not hinge on "the chance timing of an inspection and the order's
issuance rather than on the co~plainant's actual deprivation of
work." Consolidation Coal Co., 11 FMSHRC 1609, 1616 (1989),
aff'd sub nom . Local Union 1 261 v . FMSHRC, 917 F . 2d 42

598

(D.C. Cir 1990). Nor does it hinge on technical distinctions
between performing active work and waiting for a repair of
equipment to perform active work . If miners are directed to
stand by pending repair of an elevator, they are on duty and
"working" within the meaning of § 111.
The controlling issue is whether there is a nexus between
the withdrawal order and the miners' deprivation of work and pay.
Local 701. District 17 UMWA v. Eastern Associated Coal Co., 3
FMSHRC 1175, 1178 (1981). This requires an examination of the
relationship between the withdrawal order issued at 10:45 a . m.
and the underlying reasons for the operator's decision to send
the miners home at noon.
Respondent had a number of options when the elevator
malfunctioned, including: (1) to send the day shift miners home;
(2) to transport them to another portal for travel to their
underground jobs; and (3) to have them stand by at the Bowers
Portal awaiting repair of the elevator.
Respondent chose to keep the miners at the Bowers Portal to
await the repair of the elevator. This option ran the risk that
MSHA would be called by the union and would issue a withdrawal
order. This was a serious risk, because the regulations required
Respondent to report any interruption of elevator service that
lasted more than 30 minutes, and Respondent had failed to report
the elevator malfunction, which exceeded 30 minutes. The union
had the right, under§ 103(g) of the Act, to report the safety
problem to MSHA and to request an immediate investigation and
withdrawal order.
MSHA's withdrawal order, issued at 10:45 a.m . , excluded all
personnel from the elevator, including repair workers, until MSHA
investigated the matter. This meant that Respondent no _longer .
had an economically sound option to have the miners perform their
assigned underground jobs. Instead, Respondent now had a strong
economic incentive to send them home by noon. The reasons for
this are plain . First, it would take time for MSHA inspectors to
come to the mine and investigate the matter to see whether they
would modify the withdrawal order to permit resumption of
troubleshooting and repair work on the elevator. If they
modified the order, the troubleshooting and repair work would
require some indefinite period that could easily go beyond the

599

day shift on May 5. 1
Secondly, it was not economically sound to transport the
miners to another portal for travel to their underground jobs,
because this would require 4~ hours travel time.
The net result was that the withdrawal order, by stopping
troubleshooting and repair work on the elevator, had a clear
nexus with the reasons for the operator's decision to send the
miners home at noon. Accordingly, the miners were \\idled" by the
withdrawal order within the meaning of § 111 and are entitled to
compensation for the remainder of their shift on May 5, 1995 .
CONCLUSIQNS OF LAW
1. The judge has jurisdiction .

2. The day shift miners who were sent home by Respondent on
May 5, 1995, w.ere idled by MSHA's withdrawal order within the
meaning of § 111 of the Act and are therefore entitled to
compensation for the remainder of their shift .
ORDER
1 . The parties shall confer (by telephone or otherwise)
within 15 days of the date of this Decision in an effort to
stipulate the names of the idled day shift miners and the amount
of compensation due each for the remainder of their shift on May
5, 1995, plus interest accrued since May 5, 1995 . The applicable
rate of interest may be determined by consulting the rates
published by the Executive Secretary of the Commission.
Stipulation of compensation and interest will not prejudice the
operator's right to seek review of this Decision.

2. If the parties are able to stipulate the amounts of
compensation and interest, they shall file their stipulation with
the judge within 20 days of the 'date of this Decision. If they
are unable to stipulate, Complainant shall file a proposed Order
for Relief within 20 days of this Decision, setting forth the

1

In fact, the repair work was not completed until the next

day

600

names of the affected miners and the amount of compensation and
interest claimed to be due each miner under this Decision.
Respondent shall have 10 days to reply to the proposed order. If
issues of fact are raised, a hearing on damages shall be
scheduled.

/~JJk- '1--aA.Av~

1'.i11iam Fauver
Administrative Law Judge
Distribution:
Judith Rivlin, Esq., United Mine Workers of America, 900 15th
St., NW . , Washington, DC 20005 (Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company,
1800 Washington 'Rd., Pittsburgh, PA 15241 (Certified Mail)
/lt

601

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 5 1996

. CIVIL PENALTY PROCEEDING
: Docket No. WEVA 93-129
..: A.C. No. 46-07751-03542

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

v.

DOSS FORK COAL COMPANY, INC.,
Respondent

:

. Seminole Mine
.

DECISION

Appearances:

Pamela Silverman, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Arlington, Virginia for
'. Petitioner;
'l?avid Hardy, Esq., Jackson & Kelly, Charleston,
West Virginia for Respondent.

Before:

Judge Melick

This case is before me upon remand by the Commission,
18 FMSHRC 122, (February 1996) to determine whether the
violations charged in Order Nos. 3554292 and 3554293 were the
result of unwarrantable failure, and whether Order No. 3554294
should be sustained.
Order No. 3554292
The evidence established that on October 26, 1992, MSHA
Inspector James Graham, accompanied by MSHA Supervisor Clyde
Ratcliff, observed that loose coal, mixed with pieces of rock,
had been pushed into ten crosscuts in the right return air course
of the Doss Fork Seminole Mine. Inspector Graham issued this
order alleging a •significant and substantial" violation of 30
C.F.R. S 75.400. 1 He also charged that the violation was the
result of Doss Fork's •unwarrantable failure".
In the initial decision it was concluded that the cited
material constituted a violation but that the Secretary had not
proven the violation was •significant and substantial".
1

30 C.F.R. S 75.400 provides that •coal dust, including
float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on electric
equipment therein."

602

It was also found that section foreman Carl Dalton entertained a
good faith belief that the material was not a violative
accumulation. Primarily for this reason the violati~n was not
found to be the result of •unwarrantable failure".
unwarrantable failure is defined as aggravated conduct
constituting more than ordinary negligence. Emory Mining Corp.,
9 FMSHRC 1997 (December 1987). Unwarrantable failure is
characterized by such conduct as •reckless disregard,"
•intentional misconduct," •indifference" or a •1ack of reasonable
care." Id. at 2003-04; Rochester and Pittsburgh Coal Company,
13 FMSHRC 189, 193-194 (February 1991}. The Commission has
identified several factors to be considered in analyzing whether
a violation resulted from unwarrantable failure. Among these are
•the extensiveness of the violation, the length of time that the
violative condition has existed, the operator's efforts to
eliminate the violative condition, and whether an operator has
been placed on notice that greater efforts are necessary for
compliance." Mullins and Sons Coal Company, 16 FMSHRC 192, 195
(February 1994}. The Commission has also noted that in order to
serve as a defense to a finding of unwarrantable failure an
operator•s good \ faith belief that the cited conditions were not
violative must also be reasonable. Cyprus Plateau Mining Corp.,
16 FMSHRC 1610, 1615 (August 1994). The Commission seeks on
remand a determination of whether this operator's belief that the
cited conditions were not violative were reasonable.
Upon examination of the record I must conclude that the
belief of the operator's agent in this regard was not, in fact,
reasonable. The violation was extensive in that there were
accumulations of up to 26 inches in depth in 10 crosscuts.
Section Foreman Dalton also testified that the material was
pushed into the crosscuts during the last week of s 'e ptember or
the first week of October, thereby acknowledging that the
accumulations had existed for at least three weeks. In addition,
the record indicates that the operator was on notice that the
storing of coal, even when mixed with rock and mud, was
violative. Prior to issuance of the subject order, the operator
was cited on June 3 and October 21, 1992, for three violations of
the same standard. The record also shows that MSHA had warned
the operator on October 15 about similar accumulations. · Under
the circumstances I conclude that it was not reasonable to ·
believe that the cited conditions were not violative. Since the
operator has failed to sustain his' burden of proving this
affirmative defense, I conclude that the violation indeed
resulted from "unwarrantable failure" and high negligence.
In light of these findings, the previous determination that
the violation was not "significant and substantial~ (and
accordingly of lessened gravity) and the other criteria under
Section llO(i}, I find that a civil penalty of $800 is
appropriate.

603

Order No. 3554293
The recorq shows that on October 26, 1992, Inspector Graham,
accompanied by MSHA Supervisor Ratcliff, issued a Section
104(d) (1) order2 alleging a •significant and substantial•
violation of 30 C.F.R. S 75.202(a) . 3 Based on his observation of
inadequate roof support in the left return air course of the
mine, Inspector Graham charged that the violation was the result
of Doss Fork's unwarrantable failure. The violation was found to
be significant and substantial.
The Com.mission has remanded for evaluation of the
unwarrantability issue in light of appropriate testimony. In
this regard Inspector Graham testified that, during his
inspection of the left return air course, several places existed
where roof bolts were hanging down and exposing 24 inches between
the roof and the plate. Graham also described three particular
areas where groups of six, 10, and 12 adjacent defective bolts
were observed. Additionally, Graham testified that there were
many other damaged bolts throughout the area with cracked and
loose rock in the roof with much of the loose roof left hanging .
Graham conclude~ that the condition had existed for at least
several ·weeks because of the state of deterioration. He disputed
that the deterioration could have occurred within the five days
since the last weekly examination. MSHA supervisor Ratcliff
testified that the conditions he observed were similar to an
earthquake, with fallen material in any direction you looked. He
observed areas of major roof falls that he believed had existed
for weeks because •roof transition that excessive doesn't occur
in a matter of days.~
On the other hand Section Foreman Webb testified that he
made the last weekly examination on October 21, only five days
before the conditions were observed and cited by MSHA, and that
he did not observe any violative conditions at that time . Based
2

Order No. 3554293 stated in part :

The mine roof in the left return air course is not
adequately supported at spot locations starting at crosscuts
outby survey station number 65 and extended outby this point to
within three crosscuts of the surface portal. There were several
roof bolts at each location that were damaged to a point they no
longer adequately supported the roof.
3

30 C.F.R. S 75.202(a) provides:

The roof, face and ribs of areas where persons work or
t .r avel shall be supported or otherwise controlled to protect
persons from hazards related to falls of the roof, face or ribs
and coal or rock bursts.

604

on the expert testimony of Graham and Ratcliff and the
significant factor that only five days had actually elapsed
between the date of the last weekly examination reportedly
conducted by Foreman Webb and the date the conditions were
discovered by MSHA, it is clear that at least some of the
violative conditions must have existed at the time of the
previous weekly examination on October 21. In view of the
circumstances, it may reasonably be inferred that Webb must have
known of these conditions at the time of that weekly examination.
With such notice to an agent of the operator, the failure to have
corrected those conditions during the interim five days is
clearly sufficient to find the high degree of negligence
necessary for a finding of -unwarrantable failure." Accordingly,
Order No. 3554293 is affirmed with an appropriate civil penalty
of $2,300.
Order No. 3554294
Order No. 3554294 alleged in part as follows:
Adequate weekly examinations for hazardous conditions
in the return air courses of this coal mine are not being
conducted. '. There were obvious violations that were observed
and there was no report made of these violations in the
weekly examination book.
The cited standard, 30 C.F.R. S 75.305 (1991) provided, in
part as follows:
Examinations for hazardous conditions • • • shall be
made at least once each week • • • • If any hazardous
condition is found, such condition shall be reported • • •
promptly • . • • A record of these examinations • • • shall
be recorded . • • in a book • • • and the record shall be
open for inspection • • • •
The underlying basis for this violation was the failure to
report in the weekly examination books roof conditions in both
the right and left return air courses and loose coal stored in
the right return as charged in Order No. 3554291, discussed in
the initial ~ecision (16 FMSHRC 797 (April 1994)), and· Orders
No . 3554292, and No. 3554293, previously discussed in that
decision and herein. Inspector Graham reviewed the weekly
examination books for the right and left return air courses after
he arrived on the surface of the mine on October 26, 1992.
Significantly, when Inspector Graham asked Foremen Webb and
Dalton, the weekly examiners, why these conditions had not been
reported in the weekly examination books, they gave no answer.
As discussed in the original decision issued in this case,
supplemented by the discussion herein of the violations cited in
Orders No. 3554292 and No. 3554293, the operator was clearly in a

605

position from which it may reasonably have been inferred that he
knew of the violative conditions.
The failure to have reported these conditions in the weekly
examination books constitutes a violation as charged. The
violation was also •significant and substantial•. A violation is
properly designated as •significant and substantial• if, based on
the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature. Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission
explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard, (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation, (3) a reasonable likelihood that the hazard
contribut~d to will result in an injury, and (4) a
reasonable" likelihood that the injury in question will
be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (1987)
(approving Mathies criteria).
The third element of the Mathies formula requires that
the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there
is an injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836
(1984), and also that the likelihood of injury be evaluated
in terms of continued normal mining operations. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1473, 1574 (1984); see also
Halfway, Inc., 8 FMSHRC 8, 12 (1986) and Southern Oil Coal
Co., 13 FMSHRC 912, 916-17 (1991).
The failure to have reported in the weekly examination books
the serious conditions cited in the noted orders clearly
constituted a "significant and substantial" and serious
violation. Without the warning provided by such reports,
unsuspecting persons would likely be placed in hazardous and
potentially life-threatening situations -- particularly in regard
to the hazardous roof conditions.
The violation was also the result of "unwarrantable
failure•. The failure to have reported these conditions, and, in
particular, the serious roof conditions, in the weekly
examination books was clearly inexcusable and the result of an
aggravated omission constituting high negligence. Considering

606

the criteria under Section 110(i) of the Act, a civil penalty for
this violation of $1,000 is appropriate.

OBDEB
Order Nos. 3554292, 3554293 and 3554294 are affirmed. Doss
Fork Coal Company is hereby directed to pay within 30 days of the
date of this decision civil penalties of $800, $2,300 and $1,000,
respectively, for the violations charged in the above orders.

I

'

I

Gary Melick
Admi istrative L w Judge

I

Distribution:

Pamela s. Silvepnan, Esq., Offi
of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd . , Room 516, Arlington, VA 22203
(Certified Mail)
David J . Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P . O.
Box 553, Charleston, WV 25322 (Certified Mail)
/jf

60 7

FEDERAL MINE SAFETY AND HEALTH RBVl:EW COMMISSION
OPl'IC:S OP AmlD11SDAT%VS LAW J'Ol>QSS .

2 sxn.nar, 10th n.o<>R
5203 LSZIBtlRQ PIES
PALLS CJIUJlCB,

vraamu 22on

APR 1 1 1996
LANCE A. PAUL,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. WEST 95-228-DM
MSHA Case No. WE MD 95-04

NEWMONT GOLD COMPANY,

Respondent

Gold Quarry
Mine ID 26-00500

SQPPLIMENTAL DECISION
Appearances:

Lance A. Paul, ~ ~, Elko, Nevada, for the
Complainant;
·.Charles W. Newcom, Esq., Sherman & Howard L.L.C.,
Denver, Colorado, for the Respondent.

Before:

Judge Feldman

This case was heard on November 28 and 29, 1995, in
Elko, Nevada. This matter is before me based upon a
discrimination complaint filed on March l, 1995, pursuant to
section lOS(c) (3) of the Federal Mine Safety and Health Act of
1977 (the Mine Act), 30 U.S.C. § BlS(c} (3) by the complainant,
Lance A. Paul, against the respondent, Newmont Gold Company
(Newmont) .
On February 22, 1996, a decision on liability was released
wherein it was determined that Newmont's November 10, 1994,
discharge of Lance Paul was discriminatorily motivated and in
violation of section lOS(c) of the Mine Act. 18 FMSHRC 181.
Consequently, the parties were o~dered to . confer for the purpose
of stipulating to the appropriate incidental damages and back
pay, plus interest, less deductions for unemployment and earnings
from other employment. The parties were also ordered to
stipulate to economic reinstatement if Newmont declined to
reinstate Paul to his former, 0r an equivalent, position.
The Parties filed a joint Stipulation for Settlement on
April 8, 1996. The terms of the settlement are as follows:

608

1.

Newmont Gold Company will pay Lance Paul a total
of $147,253.58 for which Lance Paul waives
reinstatement with Newmont Gold Company. This
settlement will be paid in two checks. One check
will be issued in the amount of $62,933.30
representing back wages, and one lump sum amount
of $84,320.28 to cover interest, COBRA
reimbursement, accounting fees, and payment in
lieu of reinstatement and in fulfillment of all
obligations. The check representing back wages
will be adjusted to account for mandated payroll
taxes.

2.

Newmont Gold Company agrees that it will not
appeal the decision of February 22, 1996, of
Administrative Law Judge Feldman, if Judge
Feldman's final decision and order approves this
agreement to settle this matter. Newmont Gold
Company agrees that any potential appeal of the
civil penalty will be independent of this
agreement. Payment will be made immediately upon
receiving Judge Feldman's final decision and
order.
ORPER

In view of the parties agreement, the terms of the
proposed stipulation establishing a total payment of
$147,253.58 to Lance Paul, representing back pay and
economic reinstatement, as the appropriate relief under
section lOS(c) of the Mine Act IS APPROVE.D. Payment shall
be made to Paul within 30 days of the date of this
decision. IT IS ORDERED that Newmont expunge all
disciplinary records related to Paul's November 10, 1994,
discharge from Paul's employment file. Consistent with the
terms of the parties' stipulation, nothing herein shall
prejudice Newmont's right to contest the civil penalty
proposed by the Secretary in this matter. 1

1

0n March 18, 1996, the Secretary filed a Petition for
Assessment of Civil Penalty seeking the imposition of a $9,000.00
civil penalty as a consequence of Paul's discharge.

609

Upon timely payment to Paul of the agreed upon relief,
and, upon Newmont's excision of all pertinent references to
Paul's discharge in his employment records, this matter
IS DISMISSED. This decision and the February 22, 1996,
decision on liability constitute the final disposition in
this proceeding.

-·

----

Jerold Feldman
Administrative Law Judge
Distribution:
Lance A. Paul, P . O. Box 21115, Crescent Valley, NV 89821
(Certified Mail)
Lance A. Paul,· c/o Operating Engineers Local 3, 1094
Lamoille Highway, Elko, NV 89801 (Certified Mail)
Charles w. Newcom, Esq., Sherman & Howard L.L.C., First
Interstate Tower North, 633 Seventeenth Street, Suite 3000,
Denver, co 80202 (Certified Mail)
Don R. Hullinger, Director, Human Resources, Newmont Gold
Company, P.O. Box 669, Carlin, Nevada (Certified Mail)
/mca

610

FEDERAL M.INE SAFETY AND BEALTB REVIEW COMMISSION
OFFICE OF ADHINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 1 2 1996.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-710-M
A. C. No. 45-03085-05512

v.
Wallace Portable Crusher #1
WALLACE BROTHERS, INC.,
Respondent
DECISION ON REMAND
Before:

Judge 'Amchan
Commission Remand

On August 9, 1995, I assessed civil penalties of $1,300 each
for Respondent's failure to timely abate two non-significant and
substantial (S&S) violations. One involved the guarding of a
self-cleaning tail pulley and the other the guarding of a v-belt
drive. I calculated the penalty by multiplying a $50 penalty for
the original citations by the 26 days that Respondent failed to
abate within the time specified in the citations . I concluded
that this was an appropriat e penalty considering the criteria set
forth in section llO(i) of the Act, 17 FMSHRC 1380, 1383.
On April 2, 1996, the Commission remanded this case to me
with instructions to (re)consider the section llO(i) criteria and
make findings of fact with respect to each of them .

.

Findings of Facts
On May 11, 1994, MSHA representative Rodney Ingram issued
two non-S&S citations to Respondent alleging violations of
30 C. F.R. §56.l4107{a), which requires the guarding of moving
machine parts . Citation No. 4129345 alleged that the standard
was violated in that a 5-inch x 8-inch gap existed in the guard
of the sel f -cleaning tail pulley on Respondent's portable crusher
(Tr. 15-20). Citation No. 4129346 alleged that the back side
of a v-belt drive on the same crusher was unguarded(Tr. 22-28,
Exhs. Rl-R5).
611

Ingram asked Respondent's foreman, Dan Fisher, if two days
would be sufficient to abate these violations. Fisher indicated
that it would be sufficient. The inspector therefore set May 13,
1994, as the date by which abatement or termination of the
violations was required (Tr. 20, 28).
On June 8, 1994, Ingram returned to the Respondent's worksite. Four citations issued the month before had not been timely
abated. With regard to two citations, Ingram extended the
abatement or termination date. For one, an electrical grounding
violation, Ingram accepted Respondent's explanation that it had
contacted an electrician, but that the electrician had not been
able to come out to the crusher (Tr. 37). Ingram also extended
the abatement period for a citation issued for a supervisor's
lack of first-aid training. He accepted Fisher's representation
that he was having trouble scheduling the class (Tr. 42).
Fisher told Inspector Ingram that he forgot about the
guarding citabions (Tr. 38-40). Ingram issued Respondent
two section 104(b) withdrawal orders (Nos . 4129356 and 4129357)
for its failure to timely correct these violations. When Ingram
returned to the crusher on June 9, these violations were abated
(Tr. 43-47). MSHA subsequently proposed a $1,500 civil penalty
for each of the citations/section 104(b) orders 1 •
A

civil penalty of $1.300 is assessed for each
of the citations/section 104(b} orders

Respondent does not contest that the standards were violated
on May 11, 1994, nor that these violations were not corrected
Rather, it contends that the proposed civil penalties are too
high, considering the penalty criteria in the Act and MSHA's
regulations regarding penalty calculations at 30 C.F.R. Part 100.

Although the proposed penalty assessment lists only the
numbers of the section 104(a) citations, the document and
attached narrative clearly indicate that the penalties are
for the section l04(b) orders as well . Any confusion in this
regard was eliminated by the Secretary's May 5, 1995 prehearing
exchange .
1

612

Wallace Brothers points to the fact that it purchased the
crusher on which the two violations occurred in 1966 (Tr. 84).
The crusher had been inspected by MSHA many times prior to May
1994, and none of the inspectors had previously indicated that
the inside of the v-belt drive needed to be guarded. Respondent
does not know how long the gap in the tail pulley guard existed
prior to the citation (Tr. 84-85) .
Utilizing MSHA's regulations for proposing civil penalties,
Respondent argues that penalties of $210 and $159 should be
assessed, rather than those proposed by the Secretary . However,
in a contested civil penalty assessment case, the Commission is
not bound by MSHA's penalty assessment regulations or practices.
The Commission assesses penalties de noyo by applying the
statutory criteria set forth in section llO(i) of the Act to the
evidence of record, Sellersburg Stone Company, 5 FMSHRC 287, 292
(March 1983 ) .
Moreover, an; operator's failure to timely correct a citation
warrants a substantially greater penalty than the citation
itself. This is reflected in section llO(b) of the Act, which
authorizes the Secretary to propose and the Commission to assess
a penalty of up to $5,000 a day for each day during which failure
to correct a violation continues2 •
The daily penalty for failure to abate orders provides a
powerful disincentive for ignoring the abatement requirement
of a citation or order. An unabated violation constitutes a
potential threat to the health and safety of miners, Legislative
History of the Mine Safety and Health Act of 1977, at page 618.
It is one thing to overlook an MSHA violation before a
citation or order is issued and another to ignore it after a
citation has been issued. Given the number of inspectors, the
Act relies, to a great extent, on the mine operator to discover
and correct safety and health haza~ds and to timely correct cited
violations. Particularly, in instances in which abatement is
not required immediately, it is critical that the operator abate

The maximum daily penalty for a section 104(b) violation
was increased from $1,000 to $5,000 by Public Law 101-508,
Title III, §3102, (November 1990).
2

613

within the reasonable time period set forth in the citation.
This is so because the inspector is unlikely to be present on
the day on which abatement is required.
Upon discovering a failure to abate, an inspector must
apply a rule of reason in determining whether to issue a section
104(b) order or to extend the abatement date, Martinka Coal Co.,
15 FMSHRC 2452 (December 1993) . In the instant case, Inspector
Ingram gave Respondent the benefit of any reasonable doubt by
extending the abatement period for two citations. He accepted
at face value the excuses of Respondent's foreman. It certainly
was reasonable for him not to extend the abatement period for the
other two citations for which Respondent had no excuse.
To assess a civil penalty of the magnitude suggested by
Respondent is to invite dilatory conduct by some operators in
timely abating citations and orders. A daily penalty, on the
other hand, serves as a warning that such conduct will not be
tolerated eit~~r by MSHA or the Commission. I therefore assess
a $1,300 penalty for each of the guarding citations/section
104(b) orders in accordance with the following factual findings
regarding the section llO(i ) criteria:
Operator's history of previous violations: The record
indicates that Respondent had not been cited for any violations
within the 24 months prior to the instant citations . It
apparently had received MSHA citations prior to this. I conclude
that Respondent's prior history provides no reason to assess a
penalty either higher or lower than should otherwise be assessed
given the other statutory criteria.
The appr~riateness of the penalty to the size of the
business of the operator charged: Respondent is a small mine
operator, which worked slightly more than 10,000 hours in 1993.
This factor leads me to assess a smaller penalty than I would
if Respondent was a much larger .operator.
The Respondent's negligence: Inspector Ingram deemed
Respondent to be moderately negligent with regard to the original
violations . He concluded that they should have been detected by
Respondent during Wallace's daily workplace exam.

6 14

I credit the testimony of Respondent's President that his
crusher had been inspected prior to June 1994 and that none of
the MSHA inspectors who looked at the crusher before · Inspector
Ingram had suggested the inside of the v-belt had to be guarded
(Tr. 84)
The self-cleaning tail pulley had been provided with
a guard as the result of an inspection several years prior to
June 1994 {Tr. 86} . Respondent's President did not know how long
the gap in the guard cited by inspector Ingram had been present
(Tr. 85) .
I would characterize Respondent's negligence with
regard to the initial citations as low to moderate. Wallace's
negligence with regard to the initial citations would warrant a
relatively low civil penalty assuming other penalty criteria
would not warrant a higher penalty. On the other hand,
Respondent's negligence with regard to the failure to abate
orders is very high and warrants a much higher penalty than the
initial citations .
The demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of
the violation .
On May 11, 1994 two citations were issued to Respondent with
a termination date of May 13, 1994. When inspector Ingram saw
the crusher again on June 8, 1994, these violations had not been
corrected.
Foreman Dan Fisher's explanation that he forgot about the
violations demonstrates a lack of good faith in attempting to
achieve compliance with the Act . Mr . Fisher was a supervisory
employee, therefore his acts and omissions are imputable to
Respondent for purposes of assessing a civil pen~lty, Southern
Ohio Coal Co., 4 FMSHRC 1459, 1464 (August 1982).
The manner in which Respondent's lack of good faith in
timely abating the original citations should be addressed in
assessing penalties is set forth in section llO(b) of the Act.
This section provides for a penalty for each day during which a
violation continues unabated. Therefore, I multiply the penalty
I would have assessed for the original cita~ion by the number of
days that Respondent failed to abate.

61 5

The effect on the cwerator's ability to stay in business.
There is no evidence in the record that would indicate that a
penalty of $2,600 for the two failure to abate orders would
compromise Respondent's ability to continue in business .
Therefore, it is presumed that these penalties would have no such
effect, Sellersburg Stone Co., 5 FMSHRC 287 at 294 (March 1993).
The gravity of the violations. Injury from the gap in the
guard on the self-cleaning tail pulley was unlikely because
miners would rarely be near it (Tr. 15-18) .
However, injury was
possible and could be very serious, possibly resulting in the
loss of a limb (Tr. 18, 72, 82 ).
Similarly, it was possible but unlikely that a miner would
be injured due to the lack of guarding of the inside of the
v-belt drive (Tr. 22-27,72, 82). Injuries if they were to occur
were likely to be in the nature of broken fingers and cuts
(Tr. 24) .
The appropriate civil penalty
Based on consideration of the above-mentioned statutory
criteria, I find that $50 is an appropriate penalty for ea·c h
of the original citations in this case. However, taking into
account Respondent's negligence and lack of good faith in rapidly
abating these violations, I find that a daily penalty of $50 is
appropriate for each day that they remained unabated after the
termination date. Thus, I assess a civil penalty of $1,300 for
each of the section 104(b) orders.
OBDER
Citation No. 4129345 and section 104(b) Order No. 4129356
are affirmed and a $1,300 civil penalty is assessed.
Citation No. 4129346 and s~ction 104(b) Order No. 4129357
are affirmed and a $1,300 civil penalty is assessed.

61 6

The $2,600 in assessed civil penalties shall be paid within
30 days of this decision.

~~~

Administrative Law Judge
Distribution:
Jay Williamson, Esq., U.S. Department of Labor,
Office of the Solicitor, 1111 Third Ave., Suite 945,
Seattle, WA 98101 (Certified Mail)
James A. Nelson, Esq., 205 Cowlitz, P.O. Box 878,
Toledo, WA 98591 (Certified Mail)

/lh

617

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LA~ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 1 2 1996'
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . WEVA 95-112
A.C. No . 46-03335-03501 KI3
Wylo Mine

NELSON BROTHERS INC.,
Respondent
DECISION
Appearances:

Tina C. Mullins, Esq . , Office of the Solicitor,
°'u .s . Department of Labor, Arlington, Virginia, . for
Petitioner;
Hilary K. Johnson, Esq., Boucher, Hutton & Kelly,
Abingdon, Virginia, for Respondent.

Before:

Judge Fauver

This is a civil penalty proceeding under§ 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S . C . § 801

l i u.g .
Two citations were included in the petition . The operator
has withdrawn its contest of Citation No. 3973749 and has agreed
to pay the proposed penalty of $63.00. The case went to hearing
on Citation No. 3973746. Evidence was also heard as to an
imminent danger withdrawal order (No. 3973745, dated October 5,
1994) although there is a dispute whether Respondent waived its
right to contest the order by failing to file an application for
review with the Commission within 30 days of its issuance.
Citation No. 3973746 was issued in conjunction with the
imminent danger order.
I find that Respondent's efforts to
contest the citation in its meetings with MSHA officials was also
in conjunction with its efforts to contest the order. There
appears to have been some confusion based on MSHA's statements to
the operator about the time requirements for contesting the
citation and order.
I conclude that for the purpose of defending

618

against a petition for civil penalties, the operator should be
permitted to contest the imminent danger order in conjunction
with its contest of the citation. Accordingly, I conclude that
the judge has jurisdiction to decide the merits of both the
citation and the order.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINDINGS OF FACT
1 . Respondent is an independent contractor that supplies
blasting agents and technical assistance to mining companies and
other businesses . MSHA's records of registered contractors show
that Respondent performed contract services at 11 coal mines for
29,132 hours in 1994 and for 10,584 hours from January 1 through
August 8, 1995. The 11 coal mines are subject to that Act .
2 . Respondent has a number of tractor-trailer tanker trucks
that transport emulsion to the mines .
3. On October 5, 1994, MSHA Inspector Douglas M. Smith
inspected the Wylo Mine in West Virginia, operated by Arch
Minerals Company, which produces coal for sales in or
substantially affecting interstate commerce.
4. Inspector Smith observed one of Respondent's tanker
trucks unloading emulsion. The driver was standing on top of the
emulsion tank without wearing a safety belt and line . There was
an anchor line to which a safety belt could be attached. There
were no guard rails on top of the tank.
5 . The emulsion tank was an oval-shaped cylinder made of
aluminum or stainless steel, appro.x imately 9 feet high. On top
of the tank were several portholes centered along the length of
the tank.
Sections of grated metal platform ran between the
portholes. The parties are in dispute as to the number of
portholes. This issue is addressed in the Discussion, below.
I
find here that the truck in question had three or five portholes.
The grated metal sections were about 28 inches wide.

619

6. The grated metal sections did not cross over the
portholes, but. ended at the edge of a rectangular area around
each porthole . The oval-shaped tank surface was bare around each
porthole within the rectangular area. The rectangular area
around each porthole was about 26 inches long. Each hatch lid
contained a number of latches and hinges higher than the hatch
surface . When the hatch was open, it swung out to rest
horizontally. Within each rectangular area, there was sufficient
ungrated tank surface for a person to step.
7. As part of his normal duties, the truck driver climbed a
ladder on the side of the tank. Once the driver was on the
grated surface, he opened one or more portholes to release
pressure of the emulsion so that it would discharge through the
outlet hose. The driver then climbed down from the tank and
waited for the emulsion to pump out. Once all the material that
could be pumped out was removed from the tank, the driver again
climbed to the " top of the tank and opened all portholes to
"squeegee" out \emulsion that remained on the inner lining of the
tank. The rubber squeegee was about one foot wide and attached
to a pole about 10 feet long. One driver might perform the
squeegee operation or two drivers might perform it.
It would
take about 10 to 15 minutes for two drivers, twice that for one
driver.
8. To move from one porthole to another to open or close
portholes or to squeegee through the portholes, the driver would
step over portholes a number of times. This required him to
either step on the oval-shaped tank surface to step over a
porthole or to take a larger step of about two and half feet to
clear the rectangular area around the porthole.
In either case,
the portholes and the latches attached to the hatch lids
presented tripping hazards.
9. While squeegeeing, the driver would position himself at
different angles to the porthole . and might be bending, stooping,
squatting or kneeling to reach the material inside .
10. The metal platform sections were grated to provide an
anti-skid surface .

620

DISCUSSION WITH FURTHER FINPIHGS. CONCLUSIQNS

Before discussing the controlling issues, this ·part will
discuss the number of portholes.
The inspector testified that the truck he observed had three
portholes. The driver testified that there were five portholes.
Other witnesses were similarly in conflict as to the number.
Respondent's Exhibits 1 through 5, which are attached to its
Answer and incorporated in the evidentiary record, are
photographs of at least two tanker trucks. The Secretary's
witnesses indicate that photographs R-4 and R-5 most accurately
represent the truck in question, while Respondent's witnesses
indicate that the truck is shown in R-1, R-2 and R-3.
I do not
find it necessary to resolve this conflict.
I find, instead,
that both trucks represent the kind of configuration of grated
walking platforms and portholes that was involved in the imminent
danger order and the related citation on October 5, 1994, and
that it is not c'r itical to determine whether there were three or
five portholes on that date.
I find that Respondent operates
emulsion tanker trucks that have either three or five portholes
on top of the tank. The tank dimensions in the Findings of Fact
apply whether a truck has three portholes or five portholes.
Turning now to the key issues, the Secretary charges a
violation of 30 C.F.R. § 77.1710(g), which provides in pertinent
part:
Each employee working in a surf ace coal mine or in the
surf ace work areas of an underground coal mine shall be
required to wear protective clothing and devices as
indicated below:

* * *
(g) Safety belts and lines wnere there is a danger of
falling .
The basic issue is whether the truck driver's activities on
top of Respondent's tanker truck_ presented a "danger of falling"
within the meaning of § 77.7710(g).

621

The phrase "danger of falling" reasonably means a risk of
falling from a height sufficient to cause a reasonably serious
i njury. It does not mean that it is probable that ·one will fall.
The driver's activities involved a number of risks of
falling, including the following:
l. On a windy day, a sudden strong wind could cause the
driver to lose his footing and fall from the truck .
2 . Ice or snow could cause the driver to slip and fall.
3 . When the driver steps over a porthole, he could have a
misstep and fall or could trip on the latches or on the edge
of the porthole and fall.
4. When ~aneuvering the 10-foot squeegee pole, the driver
could los~ his balance and fall.
5. If the driver steps on the oval surface of smooth metal
around a porthole he could slip and fall .
Respondent contends that its drivers do not work on tank
tops during inclement weather. However, no records or other data
were presented to support this position . There are many
variations between weather forecasts and actual weather
developments during the day as well as sudden changes in the
wind. A policy that eliminates safety belts and lines on the
basis that weather and wind risks will be accurately predicted
and avoided fails to meet the safety protection intended by
§ 77.1710(g).
The controlling question is whether walking,
stooping, squatting, standing, squeegeeing, and stepping over
tripping hazards on top of a tanker truck involve "dangers of
falling" within the meaning of the safety standard. I find that
they do.
Respondent also contends that the safety line installed at
Wylo Mine presents a greater hazard than the hazard of working
without a line. This position is contrary to the evidence. The
driver testified that he would .prefer to work on top of the tank
without a safety belt and line because the hook "catches" at
times and might cause him to lose his balance. This may suggest

622

that Respondent check the sliding mechanism on the safety line,
b ut it does justify the notion that adapting to a safety belt and
line is a hazard greater than the hazard of a 9-foot fall from a
truck top.
Finally, Respondent contends that its record of having no
fall from a tank top in its five years experience is proof that
t here is no "danger of falling." This position is not
persuasive . Falls from trucks do occur and cause death or
serious injuries. The fact that Respondent's drivers have been
fortunate thus far does not mean that working near the edge of a
9-foot drop from a tank top does not involve a danger of falling.
I find that § 77.1710(g) applies to Respondent's tanker
truck and requires that the driver wear a safety belt and line
when on top of the tank unless there are guard rails. Respondent
was therefore in violation of § 77.1710(g).

The violat~on was due to moderate negligence . Respondent
did not make a reasonable effort to require the driver to wear a
safety belt and line at the Wylo Mine .
The§ 104(a) citation alleges a "significant and
substantial" violation, which the Commission defines as one
presenting a "reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious
nature." National Gypsum Co., 3 FMSHRC 822, 825(198l)i Mathies
Coal Company, 6 FMSHRC 1, 3-4 (1984). I find that the facts
sustain a finding that working on top of the tanker truck without
a safety belt and line or guard rails was reasonably likely to
result in serious injury.
now turn to the imminent danger order. "Imminent danger"
is defined by the Act as "the existence of any condition or
practice . . . which could reasonably be expected to cause death
or serious physical harm before s~ch condition or practice can be
abated." 30 u.s.c. § 802(j).
I

The inspector observed a driver standing on top of an
emulsion tanker truck without guard rails or a safety belt and
line , about 9 feet above the ground. The driver indicated that
his normal activities involved climbing a ladder on the side of
the tank, opening portholes, climbing down and waiting for the

623

emulsion to drain, climbing up again and squeegeeing the remains
through the portholes, closing the portholes and climbing down
the ladder.
The Commission has held that an inspector must be given
considerable discretion because he or she must act quickly to
eliminate conditions that create an imminent danger. Wyoming
Fuel Co., 14 FMSHRC 1282, 1291 (1992). The focus on review is
whether the inspector made a reasonable investigation of the
facts under the circumstances and whether the facts known to him
or reasonably available to him support the issuance of an
imminent danger order. l.d. at 1292. The findings of the
inspector should be upheld unless the evidence shows an abuse of
discretion. .ld...; Old Ben Coal Corp. v. Interior Board of Min~
Operations ~peals, 523 F. 2d 25, 31 (7th Cir. 1975).
I find that the facts support the inspector's finding of
imminent danger based upon the facts known to him or reasonably
available to him. Observing a driver near the edge of a 9-foot
drop on top of a tanker truck, without guard rails or a safety
belt and line, and determining the miner's activities as found
above, the inspector exercised reasonable discretion in issuing
an imminent danger order.
CIVIL PEHALTY
After the citation and order were issued, Respondent
promptly complied with the safety standard at the Wylo Mine.
However, it made no effort to comply at other coal mines. Its
overall approach to the safety standard appears to be that it
will not comply with MSHA's interpretation at any other mine
unless the mine operator insists that Respondent provide a safety
belt and line and require its drivers to use them or unless
Respondent is caught by MSHA at another mine.
Considering all of the criteria for civil penalties in
llO(i) of the Act, I find that ' the penalty of $147.00 proposed
by the Secretary for the violation of § 77.1710(g) is reasonable.
§

CQNCLUSIQN OF LAW
1. The judge has jurisdiction.

624

2. Respondent's contract work at mines producing coal for
sales in or substantially affecting interstate is subject to the
requirements of the Act. The Act applies to Respondent's trucks
on mine property whether or not the Department of Transportation
or any other agency also has jurisdiction over the condition or
operation of Respondent's trucks.
ORDER

WHEREFORE IT IS ORDERED that :
1 . Order No. 3973745 and Citation Nos . 3973746 and 3973749
are AFFIRMED.
2. Within 30 days from the date of this Decision, Respondent
shall pay civil penalties of $210.00 ($63 . 00 of which is the
settlement of Citation No. 3973749).

{j~~v~
William Fauver
Administrative Law Judge

Distribution:
Tina c. Mullins, Esq., Office of the Solicitor, U.S . Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
Hilary K. Johnson, Esq., Boucher, Hutton & Kelly, 188 E. Main
St., Abingdon, VA 24210 (Certified Mail)
/lt

625

PBDBRAL IUllB SAl'BTY llD HEALTH RBv:IBW COJOu:SSJ:Oli
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

APR 1 5 1996
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 95-248-M
A.C. No. 04-05257-05502

v.
Portable Crusher
DCL CONSTRUCTION, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Manning

This cas~ is before me upon a petition for assessment of a
civil penalty \mder Section 105 (d) of the Federal Mine Safety and
Health Act of i977, 30 u.s.c. § 801 et~ (the "Act"). Petitioner filed a motion to approve settlement and order payment of
an amended penalty. A reduction in penalty from $6,700.00 to
$4,690.00 for one section 104(d) (1) citation and seven section
104{d) (1) orders is proposed. The motion states that the original proposed penalty was specially assessed under 30 C.F.R.
§ 100.5 and that Respondent has a history of no violations during
the previous 24 months.
I have considered the representations and documentation submitted in this case, and I conclude that the proffered settlement
is appropriate under the criteria set forth in Section llO(i) of
the Act.
Accordingly, the motion for approval of settleme
GRANTED, and Respondent is ORDERED TO PAY the
ere r
the sum of $4,690.00 within 90 da
f the ate of th'

is
of Labor
decision.

Richard W. Manning
Administrative Law Judge
Distribution:
J. Mark Ogden, Esq., Office of the Solicitor, U.S. Department of
Labor, 300 N. Los Angeles St., #3247, Los Angeles, CA 90012-3381
DCL CONSTRUCTION, INC., P.O. Box 1762, Salton City, CA 92275
RWM
626

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 18 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 94-126-M
A. C. No. 14-00164-05522

v.

Kansas Falls Quarry & Mill
WALKER STONE COMPANY, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-213-M
A. C. No. 14-00164-05526 A
Kansas Falls Quarry & Mill

CLIFF MOENNING, Employed by
WALKER STONE COMPANY, INC.,
Respondent
DECISION

Appearances:

Ann M. Noble, Esq., Office of the Solicitor,
U. s. Department of Labor, Denver, Colorado,
for the Secretary;
Keith R. Henry, Esq., Weary, Davis, Henry,
Struebing & Troup, Junction City, Kansas, for
Respondents.

Before:

Judge Maurer
STATEMENT OP THE CASE

These consolidated cases are before me upon the petitions
for assessment of civil penalty filed by the Secretary of Labor
(Secretary) against the Walker Stone Company, Inc., {Walker
Stone) and Mr. Cliff Moenning pursuant to section 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815
and 820. The petitions allege that Walker Stone violated the
mandatory standard found at 30 C.F.R. § 56.12016 and that

627

Mr . Moenning, as an agent of the corporate operator, knowingly
authorized , ordered or carried out that violation . The Secretary
seeks civil penalties of $1500 against Walker Stone and $700 from
Mr. Moenning.
Pursuant to notice, these cases were heard at Fort Riley,
Kansas, on November 8 and 29-30, 1995. 1
On November 16, 1993, MSHA Inspector Eldon E. Ramage issued
section 104(d) (1) Citation No. 4332602 to Walker Stone alleging
that:
Three (3) employees were observed preforming (sic)
repair work on the electrical powered log washer. The
electrical power was not deenergized and locked out to
prevent an accidental starting of the log washer with
out (sic) the knowledge of the persons preforming (sic)
the repa,irs. One person was working on and in the gear
drive system. There was (sic) two employees working on
the ground.
The standard cited, 30 C.F.R.

§

56 .12016, provides:

Electrically powered equipment shall be deenergized before mechanical work is done on such equipment.
Powe r switches shall be locked out or other measures
taken which shall prevent the equipment from being
energized without the knowledge of the individuals
working on it . Suitable warning notices shall be
posted at the power switch and signed by the individuals who are to do the work. Such locks or preventive
devices shall be removed only by the persons who
installed them or by authorized personnel.

There was also a deposition taken by telephone on
December 5, 1995, of Albert Boisclair which the parties have .
stipulated was for trial purposes, and which has been
incorporated into the transcript of this hearing.
1/

62 8

STIPOUTIONS

At the commencement of the hearing, the parties ·proffered a
signed set of 17 stipulations, dated November 8, 1995, which I
accepted into the record (Tr. 10) as follows:
1. Walker Stone, Inc. is engaged in mining and selling
construction aggregates and road building materials .
2. Walker Stone, Inc. is the owner and operator of Kansas
Falls Quarry and Mill, MSHA I.D. No. 14-00164.
3. Walker Stone, Inc. is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801
.e.t. ~. ("the Act" ) .
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The subject citation was properly served by a duly
authorized representative of the Secretary upon an agent of
respondent corporation on the date and place stated therein and
may be admitted into evidence for the purpose of establishing its
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by respondents and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.
7. The proposed penalties will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violations.
9.

Walker Stone, Inc. had 54,977 hours of work in 1992.

6 29

10. The certified copy of the MSHA Assessed Violations
History (dated April 8, 1993) accurately reflects the history of
this mine for the two years prior to the date of the citation.
Respondents object to the portion of the certified copy of the
MSHA Assessed Violations History which depicts a history in
excess of the two years prior to the issuance of the citation.
11. The inspection giving rise to the subject proceedings
occurred on November 16, 1993, at Walker Stone's Kansas Falls
Quarry and Mill.
12. Cliff Moenning is employed by Walker Stone Company,
Inc., as the Plant Supervisor and Crusher Foreman.
13. The log washer was not in operation at the time the
citation was issued.
14. The log washer was not reassembled until after the
citation was \issued.
15. At the time the subject citation was issued, the log
washer was disassembled as follows: The gear drive shaft had
been removed from the gear box; and the log washer V-belts had
been removed between the motor and the gear box.
16. The paddles and the drive gear would not turn without
the V-belts in place and the motor energized.
17. The V-belts were not reinstalled until after the
citation was issued.
FINDINGS. CQNCLUSIONS.

AND DISCUSSION

The so-called log washer is not used to wash logs. Rather,
it is an electrically-powered piece of machinery used to clean
the rock aggregate. Very basically, aggregate comes in one end
and a system of gears and paddies moves it to the other end
through a water trough.
For a couple of days prior to the MSHA inspection, the log
washer had been down with a broken counter shaft, which is
described as a shaft between two gear boxes. To remedy this

G3 0

situation, Roger Beecham, the maintenance supervisor, testified
that 2 days or so before the citation at bar was issued, he
deenergized and locked out the circuit breaker for the log washer
while he removed the broken shaft. He also removed the V-belts
from the motor, thereby mechanically disconnecting the electrical
motor from the drive gear . When he departed the job site, he
removed his lock from the circuit breaker box because he might
need it if he had an electrical problem somewhere else. The
broken shaft was then taken to a machine shop for repair.
Mr. Beecham, for personal reasons, was not available for work
when the shaft was returned and therefore, Mr. Sayers was called
at home on the evening of November 15, 1993, by Mr . Moenning and
told to replace the shaft and get the log washer reassembled the
following day, the date the citation was issued.
Mr. Sayers, a me chanic, assisted by Mr. Frederick, began the
job of reassembling the log washer early on the morning of the
16th . They did not lock out the equipment before starting to
work on it because they both assumed it was locked out already.
It was not, as discovered by the inspector at 9:15 a.m . , after
they had already been working on it for about an hour.
Presumably, if the inspector had not intervened at that time,
they would have continued to reassemble the machinery on through
to completion, without locking it out.
Walker Stone disputes the violation of the standard on the
basis that the log washer was not completely reassembled until
after the citation was issued. More particularly, they point out
that basically, nothing would move until such time as the V-belts
were back in place and the motor energized with the on-off
switch . However, because the regulatory scheme employed by MSHA
assumes continued normal mining operations, I conclude that their
defense more properly goes to the issue of gravity (i.e., "S&S")
than to the basic underlying violation of the cited mandatory
standard.
The respondents themselves admit that the power source for
the log washer was controlled by a circuit breaker and that this
circuit breaker was in the "on" position at the time of the
subject inspection and citation (Respondent's Proposed Finding of
Fact No . 10 ) .

6 31

It is also undisputed by all that the log washer was in fact
nQt. locked out at the time the inspector cited it, and at least
two individuals (Sayers and Frederick} were in fact working on
it.
Accordingly, I find that a violation of 30 C.F . R. § 56.12016
occurred as charged. It is simply indisputable that the log
washer should have been positively deenergized at the circuit
breaker and locked out by Sayers or Frederick before they started
working on it, just as Beecham did 2 days earlier when he worked
on the machinery. Their failure to do so amounted to a violation
of the cited standard.
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
3 0 C.F.R. § 814(d) (l}. A violation is properly designated
significant an~ substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division.
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3 - 4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" 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.

63 2

In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129 (August 1985), 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 is an injury."
U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d) (1), 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 Company. Inc., 6 FMSHRC 1866, 1868 (August
1984); U.S. Steel Mining Company. Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
Applying the Mathies test, I conclude that there is n.o..t. a
reasonable like~ihood that the hazard contributed to by the
violation here would have resulted in a serious injury. This is
so because as is . generally acknowledged, there is no danger if
the mechanism cannot move , and in this case the log washer
ultimately was controlled by an on-off switch, found in the "off"
position, which was located on the second floor of the control
house, a mere 30 feet from the log washer .a.ru:1 no one was in the
control house during the reassembly of the log washer, until the
arrival of the inspection party.
Even presuming, as is reasonable to do in this case, that
the circuit breaker would not have been turned to the "off"
position or locked out at any time during the reassembly process
without the inspector's intervention, the fact remains as the
respondents' repeatedly emphasized, that neither the paddles nor
any of the drive gears could turn until the V-belts had been
reinstalled and the off-on switch moved to the "on" position . In
point of fact, the V-belts were the very last item replaced on
the log washer during reassembly ~nd the off-on switch was never
activated and remained in the "off" position until such time as
the reassembly was complete and the equipment was ready to be
test run.

6 33

Accordingly, I find that it has not been established that an
injury producing event was reasonably likely to have occurred and
therefore, it is concluded that the violation found . herein, was
not significant and substantial {"S&S").
Inasmuch as Citation No. 4332602 does not recite an "S&S"
violation, it must be modified to a citation issued under
section 104(a) of the Act.
I also disagree with the negligence factor contained in the
citation. The Commission has long held that the conduct of a
rank-and-file miner is not imputable to the mine operator in
determining negligence for penalty purposes. Southern Ohio Coal
~' 4 FMSHRC 1459, 1464 (August 1982).
In this case, the direct
negligence contributing to the violation is attributable to
Messrs. Sayers and Frederick, particularly Mr. Sayers, who was
nominally in charge of the reassembly project. Sayers and
Frederick both neglected to check the status of the circuit
breaker and loc,k it out in the "off" position as they acknowledged they were· both trained to do. They both testified that
they "assumed" someone else had performed that function and they
admitted they simply did not check it. It is noteworthy that
both are rank-and-file miners, with no management responsibilities .
I attribute "moderate" negligence to the quarry foreman
personally and Walker Stone generally for the inattention to
detail and lack of supervision over these maintenance personnel
that permitted this violation to occur.
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO{i} of the Act, I conclude and find that a civil
penalty of $300 is a reasonable and appropriate civil .penalty
that will serve to satisfy the public interest in this matter.

634

THE SECTION 110(c) CASE
The Commission has defined the term "knowingly"· that appears
in section llO(c) of the Act' in Kenny Richardson, 3 FMSHRC 8, 16
(January 1981), aff'd, 689 F.2d 623 (6th Cir. 1982) as follows:
"Knowingly", as used in the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent. Its meaning is rather that used in contract
law, where it means knowing or having reason to know.
A person has reason to know when he has such information as would lead a person exercising reasonable care
to acquire knowledge of the fact in question or to
infer its existence.
We believe this interpretation is consistent with both the statutory language
and the remedial intent of the Coal Act. If a person
in a position to protect employee safety and health
fails to act on the basis of information that gives him
knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a
manner contrary to the remedial nature of the statute.
It is true that Moenning is the quarry foreman and, as such,
is an agent of the corporation. It is also true that Moenning
did not instruct Sayers to lock out the log washer's circuit
breaker after deenergizing the circuit. However, he credibly
testified that he assumed Sayers would do so on his own. I find
that to be not an unreasonable assumption, even though it turned
out to be erroneous in this instance. Nor had Moenning either
during his telephone conversation with Sayers the previous
evening, or the two or three times that he passed by the vicinity
of the log washer that morning, directed Sayers or Frederick to
deenergize and lock out the equipment. Neither did he personally
ever check that it was deenergized and locked out.

Section llO(c) of the Mine Act provides, in pertinent
part, that: "Whenever a corporate operator violates a mandatory
health or safety standard . . . any director, officer, or agent
of such corporation who knowingly authorized, ordered, or carried
out such violation . . . shall be subject to the same civil
penalties . . . . "
2/

635

Still, Sayers, Frederick, and even Boisclair, who was also
generally in the area and was the "operator" of the log washer,
had all been trained to deenergize and lock out the· equipment
prior to working on it. The fact that they did not do it cannot
be laid off onto Moenning. Moenning had no actual knowledge that
the log washer was not locked out, nor did he have any particular
reason to know or even suspect that to be the case. Furthermore,
he credibly testified that he had neither approved of, authorized, or directed the failure of Sayers, .e.t. .a.l, to comply with
the standard. Rather, he testified that there were indeed lock
out procedures in effect at the quarry and management, including
himself, expected the miners to utilize them.
In sum, there is no evidence that Moenning's conduct was
reckless, intentional or involved aggravated conduct beyond
ordinary negligence. Accordingly, I conclude that Mr. Moenning
did not knowingly carry out the violation found herein and is
therefore not ,personally liable pursuant to section 110(c) of the
Mine Act.
\
ORPER
1. Citation No. 4332602 IS MODIFIED to delete the "S&S"
finding and, as modified to a section 104(a) citation, IS
AFFIRMED.

2. The Walker Stone Company, Inc. IS ORDERED TO PAY the
Secretary of Labor a civil penalty of $300 within 30 days of the
date of this decision.
3. The civil penalty petition against Clifford Moenning IS
DISMISSED.
/'
/

.c~,,

i'trative Law Judge

636

Distribution:
Ann M. Noble, Esq., Office of the

Solicitor, U. S. ·Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Keith R. Henry, Esq., Weary, Davis, Henry, Struebing & Troup,
819 North Washington Street, P. 0. Box 187, Junction City, Kansas
66441 (Certified Mail)
dcp

63 7

FEDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

APR 2 5 \996
DISCRIMINATION PROCEEDING

THOMAS L. CROWDER,
Complainant

Docket No. CENT 95-lSO~DM

v.

Annie Creek Mine
WHARF RESOURCES (USA), INC.,

Respondent

Mine ID No. 39-01282

ORDER OF DISMISSAL
Be~ore:

Judge Cetti

This case is before me on the Complaint of Discrimination
against Wharf Resources (USA), Inc. (Wharf) filed by Thomas L.
crowder under section 105(c) (3) of the Federal Mine Safety and
Health Act of 1977, "Mine Act."
On December 12, 1994, Mr. crowder filed with MSHA the discrimination complaint against his former ~mployer, Wharf. Mr.
Crowder in his complaint filed with MSHA and later with the
Commission alleges the following under the heading summary of
Discriminatory Action:
Was removed from a supervisory position after
a chemical release from faulty equipment.
The equipment was new but improperly fitted
to the application and failed to operate as
designed.
Many parts of this facility was improperly
sized or installed, that resulted in several
component needing upgraded to allow the
facility to function ·properly.
The chemical release was due to an effort to
install a test gauge on a pump to determine
if the pump was in fact working.
This incident happened on 2-3-9 3
Review of incident and demotion 2 -5-93
(Demotion at same rate)

6 38

Demotion effective 2-17-93 (after Thralls
golf vacation)
Salary cut to demotion level 3-8-93
Salary cut effective date 3-1-93
Demotion position eliminated 4-21-93

Mr. Crowder's discrimination claim was investigated by a
special investigator of the Mine Safety and Health Administration
(MSHA). Mr. crowder was advised on February 17, 1995, by James
E. Belcher, Chief, Technical Compliance and Investigation Division, that his claim had been thoroughly investigated and after a
careful review of the information gathered during the investigation, MSHA det~rmined that the facts disclosed during the investigation did not constitute a violation of S 105(c) of the Mine
Act. Chief Belcher's letter concludes with the statement that
"discrimination, within the confines of the Act, did not occur."
Thereafter on March 42, 1995, Mr. Crowder, on his own, filed
his complaint against Wharf with the Commission pursuant to
§ lOS(c) (3) of ~he "Mine Act."
The complaint filed with the
Commission is identical to the above quoted complaint Crowder
filed with MSHA.
It is undisputed that Crowder was involved in the supervision and start-up of Wharf's CCIX plant where the incident for
which he was demoted occurred.
It is also undisputed and clear from the record that the
incident that triggered the adverse action occurred on February 3, 1993. Higher management on review of the incident held
supervisor Crowder responsible for the incident. Two days after
the February 3, 1993, incident occurred, management demoted
Crowder from his supervisory position.
The incident of February 3, 1993, involved the release of a
cloud of anhydrous ammonia gas which engulfed another employee.
Crowder's complaint states that the chemical release of the cloud
of gas resulted from his efforts to install a test gauge on a
pump to determine if the pump was working. Complaint states that
the review of the incident by higher management unfairly placed
the entire responsibility for the' incident on him alone and resulted in his demotion on February 5, 1993, at the same rate of
pay which was cut to demotion level on March 1, 1993.
Wharf admits that Complainant was demoted from a supervisory
position in February 1993, and that Complainant's salary was
reduced to the demotion level effective March 1, 1993. Wharf
affirms that Complainant's employment with Wharf was terminated
effective April 30, 1993, as the result of a reduction in work

639

force in which 26 positions were eliminated. Wharf specifically
denies that Complainant was discriminated against because of any
protected safety activity.
The Respondent filed a motion for dismissal on the grounds
that (1) Crowder's complaint fails to state a claim upon which
relief can be granted under the Mine Act, (2) the inherent and
material prejudice resulting from the miner's 20 months delay in
the filing of a section 105(c) complaint and the fact that
Crowder's filing of the complaint was untimely in that Crowder
knew or should have known of his rights under § 105(c) of the
Mine Act well within the 60 day period specified in that section
of the Mine Act.
It is clear from the face of Crowder's application that it
fails to state a claim upon which relief could be granted.
Even
when viewed in the light most favorable to Crowder, the allegations in the complaint do not come within the perimeters of
activities protected by § 105(c) of the Mine Act. It is clear
from Crowder's own words that he was removed from his supervisory
position as a result of an incident that occurred on February 3,
1993 . The incident consisted of a release of a cloud of ammonia
gas while he w~s endeavoring "to install a test gauge on a pump
to determine if . the pump was in fact working . "
While it may have been unfair for higher man~gement to place
on Crowder the entire responsibility for this unfortunate incident and to demote him from his management position for this
reason, such disciplinary action by management for an incident
such as this does not come within the perimeters of activities
protected by the Mine Act. In Chacon 3 FMSHRC 2508 at 2510 the
Commission stated:
The Commission and its judges have neither
the statutory charter nor the specialized
expertise to sit as a super grievance or
arbitration board meting out industrial
equity ••.• We and our judges should not
substitute for the operator's business
judgment our views of "good" business
practice or on whether a particular adverse ·
action was "just" or "wise".
The failure of Crowder·' s complaint to state a cause of action or claim upon which relief can be granted under the Mine Act
requires dismissal of the Complaint. See commissioner decision
Maynard, Joseph v. Standard Sign & Signal Co., 3 FMSHRC 613
(March 1981); 2 MSHC 1186 .
In addition, there is merit in Respondent's motion for dismissal on the grounds the complaint was untimely filed.
Section
105(c) of the Mine Act, requires that complaints of discrimina-

640

tion under the Act be filed "within 60 days after such violation
occurs" (emphasis added}. The legislative history relevant to
this provision limiting time for filings states:
While this time-limit is necessary to avoid
stale claims being brought, it should not be
construed strictly where the filing of a
complaint is delayed under justifiable
circumstances.
S. Rep. 95-181, 95th Cong., 1st Sess . 36 (1977), reprinted in
Senate Subcommittee on Labor, committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 624 {1978)("Leqis. Hist.").
The time limits in section 105(c) are not jurisdictional.
See Secretary on behalf of Hale v. 4-A Coal co . , 8 FMSHRC 905,
908 (June 1986). However, in that same decision, the Commission
also stated that "[t)he fair hearing process envisioned by the
Mine Act does not allow us to ignore serious delay •. • • " In
this case we have serious delay. We are dealing with a late
filing where the delay in filing is over 10 times longer than the
60 days specified by the Mine Act. As stated by ALJ Maurer in
Sinnott, II, 16 FMSHRC 2445, 2447 "At some point there has to be
an outer limit, if the 60-day rule contained in the statute has
any meaning at all."
I have reviewed the pleadings and the papers filed by Complainant including the deposition of Mr. Crowder taken in this
matter . The record does not indicate any justifiable circumstances for this extraordinary delay.
Crowder in his reply to Respondent's reply to Complainant's
Response to Order to Complainant to Show cause states:
I was seeking legal remedies for the actions
of Wharf Resources in March of 1993, that was
well within the 60 day statutory time period
required by the 105c. The attorney I was
working with on this matter could not or did
not find any laws or regulations on anhydrous·
ammonia or containment and equipment requirements for the handling and storage of anhydrous ammonia. - - ·
My attorney asked if I wanted to proceed with
actions over the wage reduction and I said I
wanted to pursue the safety aspect and find
the laws governing anhydrous ammonia. Again,
she was unsuccessful in finding any laws or
regulations governing anhydrous ammonia.
(Emphasis added).

6 41

Charles B. Wilson, Wharf's manager for Employee
Relations/Safety and Security, in his affidavit states:
After Mr. Crowder's termination I was
contacted by a noted Rapid City attorney that
specializes in employment law regarding Mr.
Crowder's dismissal. She requested information regarding Mr. crowder's severance pay.
Additionally, Mr. crowder contacted me requested a copy of Wharf's employee handbook
for his attorney to review.
It is also worthy of note that John A. Begeman, now General
Manager of Wharf, in his affidavit of February 29, 1996 shows
that each of the three individuals responsible for Mr. Crowder's
transfer and termination have left the employ of Wharf and are
now located outside the subpoena jurisdiction of the Review
commission.
It satisfactorily appears from the record that crowder knew
or should have known of his rights under section 105(c) of the
Mine Act and that under the circumstances of this case the filing
of the complai}:it twenty months after the expiration of the
statutory 60 day period is indeed untimely.
ORDER

In view of the foregoing, the Complainant's discrimination
complaint under the Mine Act is found to have been untimely filed
and, furthermore, does not state a cause of action within the
purview or perimeters of the activity protected by the Mine Act.
The Respondent's motion to dismiss this case is GRANTED and the
complaint is DISMISSED.

Au
t F. Cetti
Administrative Law Judge

Distribution :
Thomas L . Crowder, Route 1, Box 55, Hemingford, NE 69348
(Certified Mail)
Linden R. Evans, Esq., MARVIN D. TRUHE LAW OFFICES, P.O. Box
8106, Rapid City, SD 57709
(Certified Mail)

\sh
6 42

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

FALLS CHURCH. VIRGINIA 22041

APR 2 6 1996
CLYDE PERRY,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. WEST 96-64-DM
MSHA Case No. RM MD 95-18

PHELPS DODGE MORENCI, INC.,
Respondent

Morenci Branch Mine
Mine I.D. 02-00024

ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE
A CLAIM UPON WBICH RELIEF MAY BE GRANTED
Before:

Judge Amchan

In September 1995, Complainant, Clyde Perry, filed a
complaint with the Mine Safety and Health Administration (MSHA)
alleging that he had been discharged by Respondent, Phelps Dodge,
on February 3, 1995, in violation of section lOS(c) of the
Federal Mine Safety and Health Act. Material attached to the
complaint indicates that Mr. Perry was fired either for refusing
to provide a urine sample for a drug test, or for testing
positive.
Complainant Perry apparently injured his right foot at work
on February 16, 1993. After a month off work, Mr. Perry claims
that Respondent required him to return on light duty.
In OctoLer, 1993, Complainant states that he was taken off
light duty and required to work a9 a truck driver. Perry states
further that he requested that his foreman give him another
assignment because driving a truck caused him to have pain in his
right foot, knee and back. Respondent apparently declined to
provide Mr. Perry with any other type of work.
On January 28, 1995, Complainant was asked to provide a
urine specimen for a drug and alcohol test .
Documents provided
by Complainant indicate an accident occurred in the vicinity in
which he was working that evening, although Mr. Perry was not

64 3

involved in the accident. Complainant contends that Respondent's
demand for a urine specimen was unfair and contrary to
Respondent's policies and normal practices. He was fired either
for failing to cooperate with the test or for testing positive.
On November 6, 1995, MSHA informed Complainant that it had
determined that his discharge did not violate section lOS(c) of
the Act. Thereupon, Complainant initiated this action on his own
behalf pursuant to section lOS(c} (3) of the Act. In February,
1996, Respondent filed an Answer to the Complaint and a Motion
for a More Definite Statement.
On February 29, 1996, I issued an Order to Show Cause to
Complainant and an Order to Provide a More Definite Statement of
his claim for relief. In that order, I expressed my opinion that
Mr. Perry's complaint did not appear to allege any activity
protected by the Federal Mine Safety and Health Act.
Complaina..n t responded to my Order three weeks later. In
response to my· direction to specify his protected activities,
Mr. Perry replied:
When I was forced to go back to work almost a month I
had been off of work, still on crutches and medication.
I felt it was unsafe to go back to work with doctors
orders, and if I did not go back to work I would be
discharged. When I was task training other employees
on buses while I was on medication I also complained
to the Respondent that it was unsafe. I was also kept
in a lower paying job, harassed for being off of work
for almost the whole month of May for medical reasons
and was told that I was terminated, because I told the
Respondent that I was unable to perform my duties as a
truck driver I felt it was unsafe because of medication
and medical reasons. I explained to Respondent that I
could not perform my duties with doctors orders to
retrain with different type of work.
Mr Perry stated further that, "[t]he basis for my belief
[that he was the victim of retaliation] is I complained about my
injury and I could not perfo~ my job . I felt I was unsafe for
myself and co-workers to operate heavy equipment under my
condition. I gave the Respondent a lost time accident".

644

Having reviewed Complainant's response to my Show Cause
Order I hereby dismiss his complaint alleging that his discharge
violated section lOS(c} of the Act. Assuming that I ·were to find
all the facts alleged by Mr. Perry to be true, I conclude that
they fail to state a claim upon which relief may be granted under
the Act.
Section lOS(c) (1) of the Federal Mine Safety and Health Act
provides that:
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 because such miner . ..
has filed or made a complaint under or related
to this Act, including a complaint notifying
the operator or the operator's agent ... of an
alleged dan.g er or safety or heal th violation
... or because such miner ... has instituted
or caused to be instituted any proceeding
under or related to this Act ... or because of
the exercise by such miner ... of any statutory
right afforded by this Act.
The Federal Mine Safety and Health Review Commission has
enunciated the general principles for analyzing discrimination
cases under the Mine Act in Sec. ex rel. Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (October 1980), rey'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F . 2d 1211
(3d Cir. 1981), and Sec. ex rel. Robinette v. United Castle Coal
.c,Q., 3 FMSHRC 803 (April 1981).
In these cases, the Commission
held that a complainant establishes a prima facie case of discrimination by showing (1) that he engaged in protected activity
and (2) that an adverse action was motivated in part by the
protected activity.
The operator may rebut the prima f acie case by showing
either that no protected activity occurred, or that the adverse
action was in no part motivated by the protected activity. If
the operator cannot thus rebut the prima facie case, it may still

64 5

defend itself by proving that it was motivated in part by the
miner's unprotected activities, and that it would have taken the
adverse action for the unprotected activities alone.
Complainant herein has not alleged that he engaged in
activities protected by the Act . Being injured on the job is not
an activity protected by section lOS(c) . Inability to perform
one's tasks, even if due to a work-related injury, is similarly
not within the scope of this provision . Refusal to take a drug
test or testing positive is not protected activity either -- even
if the employer's demand for such a test is unfair, unwarranted
and contrary to the employer's normal practice1 •
Finally, I conclude that it is not a section lOS(c)
violation to decline to provide alternative employment to a
person who alleges that their physical condition poses a threat
to their safety and the safety of others. An employee, who in
good faith, b~lieves his condition threatens others would cease
performing suoh work activities. Although it may be a violation
to retaliate against an employee who in good faith asserts that
the continued employment of a co-worker poses a safety hazard ,
it is not a violation of the Act for an employer to take the
position that an employee must either be able to perform his
current tasks or seek employment elsewhere.
In short, I dismiss Mr. Perry's complaint because even if
he were to establish that he was treated unfairly, or in a
discriminatory manner, he would fail to establish a section
lOS(c) violation. The Act does not prohibit all discriminatory
or retaliatory conduct. It prohibits only such conduct taken
with regard to activities protected by the Act. Since

However, a demand for a urine specimen might constitute a
section lOS(c) violation if it was made in retaliation for other
protected activities, such as making legitimate safety
complaints, assisting MSHA in conducting an inspection, etc.
1

6 46

Complainant has not alleged any such activities, he has failed
to state a claim upon which relief may be granted. His
discrimination complaint is therefore DISMISSED.

w.()mdt_a'Y'-

Are.hur J. Amchan
Administrative Law Judge
Distribution :
Clyde Perry, Box 291, Morenci, AZ 85540 {Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln St.,
Suite 2710, Denver, CO 80219 {Certified Mail)
/lh

64 7

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGE
2 SKYLINE, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 2 61996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
On Behalf of Frank Scott,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 96-53-D
MSHA Case No. BARB CD 95-21

v.

No. 68 Mine

LEECO, INCORPORATED,
Respondent
DECISION
Appearances:

Mary Sue Taylor, Esq., U. S . Department of
Labor, Nashville, Tennessee, for Complainant;
Tony Oppegard, Esq., Appalachian Research and
Defense Fund of Kentucky, Inc.,
Lexington, Kentucky, for Complainant;
Leona A. Power, Esq., Reese & Lang, P.S.C.,
London, Kentucky, for Respondent;
Marco M. Rajkovich, Esq., Wyatt, Tarrant & Combs,
Lexington, Kentucky, for Respondent;

Before: Judge Barbour
This proceeding is brought by the Secretary of Labor on
behalf of the complainant, Frank Scott, pursuant to section
lOS(c) (2) of the Federal Mine Safety and Health Act of 1977
(30 U.S.C. § BlS(c) (2)) . The Secretary alleges that on or about
June 12, 1995, Scott was discharged constructively for engaging
in a work stoppage that was prompted by unsafe conditions and by
unsafe job assignments. The Secretary seeks reinstatement, back
pay, benefits, interest and an order directing Leeco, Inc .
(Leeco) to cease and desist discriminatory activities toward its
employees. In addition, the Secretary seeks an order directing
Leeco to expunge all references to the matter from Scott's
personnel files.

648

In addition to the complaint of discrimination, the
Secretary filed an application for Scott's temporary
reinstatement. Like the complaint, the application ·w as filed
pursuant to section 105(c) (2) of the Act. Following a hearing on
the me+its of the application, I ruled that Scott's complaint of
discrimination was not frivolously brought, and I ordered Scott's
temporary reinstatement (18 FMSHRC 2167 (December 1995)). (The
order was amended subsequently to provided for Scott's economic
reinstatement until a decision on the merits of the
discrimination complaint was issue (Order Requiring Economic
Reinstatement (March 28, 1996) .)
Hearings concerning the merits of the discrimination
complaint were convened on March 19, 1996, and on April 9, 1996 .
Shortly after the April hearing started, it was adjourned to
p~rmit the parties to engage in settlement negotiations .
When
the hearing resumed, private counsel for Scott announced that
he, counsel for the Secretary, and counsels for Leeco had settled
the case. They ·.requested I approve the settlement
(Tr. 15-16).
Private counsel for Scott read into the record the terms and
conditions of the settlement that applied to Scott and Leeco
(Tr . 16-22). I asked all counsels and Scott whether they agreed
with the terms and conditions as stated by private counsel. Each
responded affirmatively (Tr.24). Counsels also agreed that as
applied to Scott and Leeco, the terms of the settlement were
confidential (Tr. 23-24).
Further, counsel for the Secretary stated on the record the
terms of the settlement that applied to the Secretary and Leeco - namely, that Leeco agreed to pay a civil penalty of $8,000 to
MSHA for its alleged violation of section lOS(c) of the Act
(Tr. 22-23).
I advised counsel that I app~oved the settlement and would
confirm that approval in a written decision, once I received the
transcript of the hearing {Tr. 24-25). I also agreed with the
parties' request that the terms of the settlement regarding Scott
and Leeco be confidential and stated that I would seal the record
to protect confidentiality (.l.d.; · ~ Order Imposing Rule of
Confidentiality (April 12, 1996)).

649

ORDER
The terms of the parties' settlement regarding Scott are
APPROVED and the parties are ORDERED to comply with the terms
under the conditions and within the time frames stated in the
settlement.
The terms and conditions of the settlement remain
CONFIDENTIAL. Counsels and Scott are ORDERED not to discuss the
terms and conditions with any persons other than each other. In
addition, the record is SEALED, subject to review only by the
Commission or another appellate body.
The settlement of the Secretary's complaint against Leeco
with respect to its alleged violation of section lOS(c) is also
APPROVED, and Leeco is ORDERED to pay the sum of $8,000 to the
Secretary within 30 days of the date of this decision.

D~·c1/~~
\

David F . Barbour
Administrative Law Judge

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215-2862
(Certified Mail)
Tony Oppegard, Esq., Appalachian Research and Defense Fund of Kentucky,
Inc., 630 Maxwelton Court, Lexington, KY 40508 (Certified Mail)
Leona A. Power, Esq., Reece & Lang, P.S.C., London Bank & Trust
Building, 400 South Main Street, P.O. Drawer 5087, London, KY 407455087 (Certified Mail)
Marco M. Rajkovich, Esq. , Wyatt, Tarrant & Combs, 1700 Lexington
Financial Center, Lexington, KY 40507 (Certified Mail)

.

Patrick Graham, Vice President, Safety and Health, 100 Coal Drive,
London, KY 40741 (Certified Mail)
nt

650

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 2 9 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94 - 381
A.C. No. 46-06051-03689

v.

Stockton Mine
CANNELTON INDUSTRIES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 95-100
A.C. No. 46-06051-03698-A

v.

Stockton Mine
CHARLES PATTERSON, Employed by
Cannelton Industries, Inc.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA} ,
Petiticner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 95-101
A. C. No. 46-06051 - 03697-A
Stockton Mine

GEORGE RICHARDSON, Employed by
Cannelton Industries, Inc.,
Respondent

6 51

DECISIQN

Appearances:

Tina C. Mullins, Esq., Office of the· Solicitor,
Department of Labor, Arlington, Virginia, for
Petitioner;
John T. Bonham, II, Esq., (David J. Hardy, Esq.,
on brief), Jackson & Kelly, Charleston, West
Virginia, for Respondents.

Before:

Judge Hodgdon

These consolidated cases are before me on Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor,
acting through his Mine Safety and Health Administration (MSHA),
against Cannelton Industries, Inc., Charles Patterson and George
Richardson pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. §§ 815 and 820. The
petitions allege that the company violated section 75.400 of the
Secretary's ma~~atory health and safety standards, 30 C.F.R.
§ 75.400, and that Messrs. Patterson and Richardson, as agents of
the company, knowingly authorized, ordered or carried out the
violation. The Secretary seeks penalties of $3,600.00 against
the company and $2,000.00 each for Patterson and Richardson. For
the reasons set forth below, I find that Cannelton violated the
regulation, that the agents knowingly authorized the violation
and I assess penalties of $3,600.00 against the company and
$500.00 each against Patterson and Richardson.
A hearing was held on October 11 and 12, 1995, in
Charleston, West Virginia. In addition, the parties filed posthearing briefs in the cases.
CIRCPMSTAHCES OF TBE CITATION
On March 7, 1994, Coal Mine Inspector Michael S. Hess was
conducting a quarterly inspectio~ of Cannelton Industries
Stockton Mine, Portals No. 1 and No. 130. While inspecting the
No. 3 conveyor belt, Hess came upon a pile of coal approximately
ten feet wide and ten feet long and four feet high in the area of

652

the V-scrapper. 1 The top of the pile was flat because the belt
was in contact with it and leveling it off. The belt roller was
also in the coal. Hess described the pile as being -black in
color, made up of small lumps of loose coal as well as coal dust,
and being dry on top. He estimated that it consisted of eight to
twelve tons of coal.
As a result of these observations, Hess issued Citation No.
4195028, pursuant to section 104(d) (1) of the Act, 30 U.S.C.
§ 814(d ) (1).
The citation alleges that the company violated
section 75 . 400 of the Secretary's regulations in that:
Management showed a high degree of negligence by
allowing loose dry coal to accumulate under the No. 3
belt conveyor to a point where the loose coal was in
contact with the belt. The coal accumulation measured
approximately 10 feet in width, 10 feet in length and 4
feet in height. This condition was reported in the
pre-shift mine examination report since 2/15/94 on each
shift with ·no corrective action taken . A fire hazard
is present with a moving conveyor belt running in loose
dry coal .
(Govt. Ex. 1.) A subsequent special investigation resulted in
petitions for assessment of penalty being filed against Patterson
and Richardson, under section llO(c) of the Act, 30 U.S.C.
§ 820(c), for having knowingly authorized, ordered or carried out
the violation. 2

The V-scrapper is a scrapper located on the bottom belt to
remove coal or other material from the inside of the belt.
1

Section llO(c) provides, in pertinent part: "Whenever a
corporate operator violates a mandatory health or safety standard
. . . any director, officer, or agent of such corporation who
knowingly authorized, ordered, or carried out such violation
. . . shall be subject to the same penalties . . . . "
2

653

PINPINGS OP FACT AND COHCLVSIONS OF LAW

Section 75.400 is taken verbatim from section ·3 04(a} of the
Act, 30 u.s.c. § 364(a}, and requires that "[c]oal dust,
including float coal dust deposited on rock-dusted surfaces,
loose coal, and other combustible materials, shall be cleaned up
and not be permitted to accumulate in active workings, or on
electric equipment therein."
It is well settled that section 75.400 "'is violated when an
accumulation of combustible materials exists.' Old Ben Coal Co.,
1 FMSHRC 1954, 1956 (December 1979); see also Old Ben Coal Co., 2
FMSHRC 2806, 2808 (October 1980). The Commission has further
explained that a prohibited 'accumulation' refers to a mass of
combustible materials that could cause or propagate a fire or
explosion. Old Ben, 2 FMSHRC at 2808." Mid-Continent Resources,
Inc., 16 FMSHRC 1226, 1229 (June 1994).
In this case, there is no dispute that an accumulation of
coal, as described by Inspector Hess, existed in the area of the
V-scrapper on the No. 3 belt. There is, however, a conflict as
to how and when the accumulation occurred and the implications
that arise from the answers to those questions. It is the
Respondent's position that the accumulation had happened shortly
prior to the time the inspector was making his inspection and
that, therefore, no violation had taken place. Contrarily, the
Secretary argues that the accumulation had grown over a two week
period. I conclude that a preponderance of the evidence supports
the Secretary's position.
Dwight Sciemaczko and Lee Tucker, both fire bosses, examined
the No. 3 belt as part of their duties everyday during the two
week period prior to the issuance of the citation. They
testified that beginning on February 14 they observed . an
accumulation of coal under the No. 3 belt V-scrapper. They
further testified that the accumulation grew in size daily so
that s.e veral days before March l ' the belt and rollers were
rubbing the top of the pile.
Sheldon Craft, a general laborer, examined the No. 3 belt on
the evening shift of February ~5. He testified that he observed
a large accumulation at the V-scrapper that was flat on the top
and was touching the belt and rollers.

654

Finally, Sciemaczko accompanied Inspector Hess on the
inspection and was with him when Hess discovered the accumulation
at the V-scrapper. Sciemaczko testified that the accumulation
that Hess observed was the same one that he had watched growing
since February 14 .
Against this, the company presented the testimony of
Respondent George Richardson, day shift foreman, Respondent
Charles Patterson, evening shift foreman, and Mickey Elkins,
midnight shift foreman. While admitting that at various times
between February 14 and March 1 they had observed some
accumulations at the V-scrapper, all denied seeing an
accumulation growing over a two week period and all denied ever
seeing an accumulation touching the belt and rollers during that
period.
Elkins testified that he had walked the belt about three and
one half hours before the citation was issued and although he
observed a fairly large accumulation, it was not the size of the
one found by Hess and it was not touching the belt or rollers.
The three foremen theorized that the accumulation discovered by
Hess was the result of a shuttle car hitting the spill board at
the belt feeder which in turn knocked the belt out of alignment
and caused most of the coal to fall directly onto the bottom belt
where it remained until it was removed by the V-scrapper. They
believed that this must have happened a short time before the
inspector arrived.
I find that the accumulation developed over a two week
period as described by Siemiaczko, Tucker and Craft. There is no
evidence that any of them had any reason not to tell the truth.
Nor was there any indication at the hearing that they were not
credible.
On the other hand, Richardson and Patterson not only have
the responsibility for defending the company, but face personal
liability as well. Their self-serving statements are not
persuasive when compared with the other evidence in the case.
Furthermore, there is no evidence to corroborate their
speculation.
No one testified that in fact a shuttle car hit the spill
board that morning, that the belt was out of alignment, that coal

655

was observed traveling from the feeder to the V-scrapper on the
bottom belt or · that the belt was re-aligned after the
accumulation was discovered. In addition, Inspector Hess
testified that if such an accident had occurred, coal would spill
off of the belt between the feeder and the V-scrapper, since the
bottom belt is not designed to carry coal. No one testified that
such spillage occurred and Hess specifically testified that he
did not observe any spillage along the belt . Finally, the
insinuation that this was how the accumulation occurred was not
made at the time that the citation was issued, when it could have
been investigated, but was raised after legal proceedings were
started.
Having found that the accumulation occurred over a two week
period, I find that it s hould have been cleaned up long before
Inspector Hess arrived at the mine. Since it was not, I conclude
that Cannelton violated section 75 . 400 of the regulations.
Significant an~ Substantial

The Inspector found this violation to be "significant and
substantial." A 11 significant and substantial" (S&S) violation is
described in Section 104(d) (1 ) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard. 11 A violation is properly designated S&S "if, based upon.
the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out four criteria that have to be met for a
violation to be S&S. See also Buck Creek Coal, Inc. y. FMSHRC,.
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc . v .
Secretary, 861 F.2d 99, 103-04 {5th Cir. 1988), aff'g Austin
Power, Inc., 9 FMSHRC 2015, 2021 ' (December 1987) (approving
Mathies criteria) . Evaluation of the criteria is made in terms
of "continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 {July 1984). The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,

656

Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co . , 9
FMSHRC 1007 (December 1987 ) .
As is frequently the case, the determination as to whether
this violation was S&S revolves around the third Mathies
criterion, whether there was a reasonable likelihood that the
safety hazard caused by the violation would result in an injury.
As to the first Mathies requirement, I have already found that
Cannelton violat ed a mandatory safety standard. I also find that
the second factor, that the violation contributed to a measure of
danger to safety, has been met because a fire could result from
the friction of the belt and the rollers rubbing in the coal and
a fire started elsewhere could be propagated by the accumulation .
However, the Respondent argues that the third element was not met
because of the short time the accumulation had existed and the
fact that most of it was damp making it unlikely that a fire
would resul t.
I find that. there was a reasonable likelihood that a fire
causing inj ury would result. I have already rejected the
company's assertion that the accumulation had just occurred. I
also re j ect its argument that because the coal was damp it would
not be reasonably likely to cause a fir~. In the first place,
Inspector Hess testified that the coal, at least on top of the
pile, was dry to the touch . In the second place, even if the
coal was damp beneath the surface, the Commission has
consistently recognized that damp coal can dry out and ignite.
Utah Power & Light Co., Mining Division, 12 FMSHRC 965, 969 (May
1990), aff'd, 951 F.2d 292 (10th Cir. 1991); Black Diamond Coal
Mining Co., 7 FMSHRC 1117, 1120-21 (August 1985). Cannelton's
argument fails to take into consideration the "risks emanating
from continued normal mining operations." Mid-Continent
Resources, Inc., 16 FMSHRC 1226, 1232 (June 1994).
Having found that there was a reasonable likelihood that a
fire resulting in an injury would result , it necessarily follows
that there was a reasonable likelihood that an injury resulting
from a fire would be reasonably serious in nature, the fourth
factor, would also result. Accordingly, I conclude that the
violation was "significant and substantial."

657

Unwarrant&ble Failure

The inspector found this violation to be the result of an
"unwarrantable failure" on the company's part. The Commission
has held that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence by a mine operator in
relation to a violation of the Act . Emery Mining Corp . , 9 FMSHRC
1997, 2004 (December 1987); Youghiogheny & Ohio Coal Co . , 9
FMSHRC 2007, 2010 (December 1987) . "Unwarrantable failure is
characterized by such conduct as 'reckless disregard,'
'intentional misconduct,' 'indifference' or a 'serious lack of
reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal
Corp. 13 FMSHRC 189, 193-94 (February 1991} ." Wyoming Fuel Co.,
16 FMSHRC 1618, 1627 (August 1994).
The Commission has held that "the extensiveness of the
violat ion, the length of time that the violative condition has
existed, the ~perator's efforts to eliminate the violative
condition, and whether an operator has been placed on notice that
greater efforts are necessary for compliance" are factors to be
considered in determi ning whether an accumulation violation was
caused by an unwarrantable failure to comply with the regulation .
Mullins and Sons Coal Co . , 16 FMSHRC 192 , 195 (February 1994);
Peabody Coal Co . , 14 FMSHRC 1258 , 1261 (August 1992). Applying
these factors to this case, I conclude that the violation was
caused by Cannelton's unwarrantable failure to comply with
section 75.400.
I have already found that the accumulation grew over a two
week period. Siemiaczko first reported that the No. 3 belt
scrapper was "dirty" on February 14 . (Govt . Ex . 9, p.2 . ) He
testified that "dirty" meant that there was a coal accumulation
that needed to be cleaned up. For the next two weeks, until the
March 1 violation , every belt examiner indicated in ~he Preshifp
- Onshif t and Daily Report that there was a coal accumulation at
the No . 3 belt V-scrapper . Richardson countersigned every one of
the reports. Patterson signed nine of them.
In spite of this, neither Richardson nor Patterson made any
effort to find out what the problem was or made any specific
attempt to have it cleaned up ._ Incredibly, they testified that
they viewed the area from time to time during the period and did
not notice anything unusual. Elkins, on the other hand, stated

658

that at one time he did observe a larger than normal pile,
although not as large as described by Siemiaczko, Tucker and
Craft, which he unsuccessfully tried to have cleaned up.
I conclude that an accumulation which grew in size for two
weeks and which was reported on every preshift for that period,
should have put the operator on notice that greater efforts to
clean it up were necessary, even if the foremen did not see it.
Instead, except for Elkins' abortive attempt, the operator made
no effort to abate the condition.
I find that Cannelton's conduct in this case amounted to
more than ordinary negligence, that it is best described by the
terms "not justifiable," ''inexcusable" or "indifferent." Wyoming
Fuel Co., 16 FMSHRC at 1627; Youghiogheny, 9 FMSHRC at 2010.
Accordingly, I conclude that the violation occurred as a result
of the operator's "unwarrantable failure" to comply with the
regulation.
Section llO(c) Violations

The Secretary has alleged that Richardson and Patterson
"knowingly" violated section 75.400 and are personally liable
under section llO{c) of the Act. 3 I find that Richardson and
Patterson knowingly authorized the violation by not taking steps
to have the accumulation cleaned up.
The Commission set out the test for determining whether a
corporate agent has acted "knowingly" in Kenny Richardson, 3
FMSHRC 8, 16 {January 1981), aff'd, 689 F.2d 623 {6th Cir. 1982 ),
cert. denied, 461 U.S. 928 {1983), when it stated: "If a person
in a position to protect safety and health fails to act on the
basis of information that gives him knowledge or reason to know
of the existence of a violative condition, he has acted knowingly
and in a manner contrary to the remedial nature of the statute."
The Commission has further held, however, that to violate section
llO(c), the corporate agent's conduct must be "aggravated," i.e.
it must involve more than ordinary negligence. Wyoming Fuel Co.,

3

See n.2, supra, for the relevant provisions of this

section.

659

16 FMSHRC at 1630; BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245
(August 1992)~ Emery Mining Corp., 9 FMSHRC at 2003-04.
In Prebhu Deshetty, 16 FMSHRC 1046 (May 1994), the
Commission found a general mine foreman personally liable under
section llO(c) for a violation of section 75.400. In doing so,
the Commission held that Deshetty had actual knowledge of the
accumulation problem because he was familiar with the belt where
the accumulations were found, he had reviewed and countersigned
the belt examiners report which indicated that the belt was
"dirty" or "need[ed] cleaning" for every shift from January 7 to
January 15 and he understood that that language meant a violative
or hazardous accumulation existed. Id. at 1050-51.
The Commission went on to hold that Deshetty had specific
knowledge of combustible accumulation problems in the mine, from
reviewing previous citations issued to the mine for accumulations
and from an MSHA inspector warning him that the mine needed to
"take a closer look" at the problem, which should have occasioned
a greater awareness of the situation in him. Id. at 1051. The
Commission stated: "Deshetty was aware of the ongoing spillage
problem along the No. 1 beltline that ultimately resulted in the
citation, but failed to take measures to remedy the problem.
Such inaction by the responsible supervisor, placed on actual
notice by MSHA of the problem, constituted a knowing
authorization of the violation." Id .
In this case, there is no evidence that either Richardson or
Patterson had reviewed the violation history of the mine or that
they had been specifically put on notice by MSHA that the mine
had an accumulation problem. On the other hand, they clearly had
actual knowledge of the accumulation problem. The specific
location of the accumulation, the V-scrapper, was noted as being
"dirty" or "needs cleaned" from February 14 to March 1. Both had
countersigned the reports containing these entries and both
testified that the entries meant that there was an accumulation
that required attention. In addition, both testified that they
had observed the V-scrapper, and while they did not admit to
seeing the accumulation described by Sciemiaczko, Turner and
Craft, they did admit to seeing some accumulation.
Their testimony implies that the numerous entries in the
examiner's book may not have referred to a continuing
660

accumulation. However, since neither Richardson nor Patterson
bothered to check the situation out, and since the evidence amply
demonstrates that the accumulation was a continuing one, their
"self-induced ignorance" will not absolve them from liability.
Roy Glenn, 6 FMSHRC 1583, 1587 (July 1984). Nor will their claim
that they did not know whether the accumulation described in
preshift book was a prohibited one. Deshetty at 1051; Warren
Steen Construction, Inc. and Warren Steen, 14 FMSHRC 1125, 1131
(July 1992).
I conclude that both Richardson and Patterson were aware of
the ongoing accumulation problem at the No. 3 belt V-scrapper,
but failed to take measures to remedy the problem. Such inaction
constituted a knowing authorization of the violation.
Accordingly, I conclude that they are personally liable under
section llO(c) of the Act.
CIVIL PENALTY ASSESSMENT
'

'

The Secretary has proposed civil penalties of $3,600.00 for
the company and $2,000.00 each for Richardson and Patterson.
However, it is the judge's independent responsibility to
determine the appropriate amount of a penalty, in accordance with
the six criteria set out in section llO(i) of the Act, 30 U.S.C.
§ 820(i).
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151
(7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC ____ (April
1996) .
In connection with the six criteria, I note that the
Stockton Mine (Portals #1 and #130) produced 999,068 tons of coal
during the year prior to the violation and that Cannelton is a
subsidiary of Cyprus Amax Minerals Company which produced
(5,385,647 tons of coal, making this a large mine.
(Govt. Ex.
6.) The Assessed Violation History Report indicates that the
Respondent's history of previous violations is no more than
moderate, although for the two yea~s prior to the violation it
had 47 violations of section 75.400.
(Govt. Ex. 10.) The
parties stipulated that payment of the maximum penalty that could
be assessed in this case would not affect the company's ability
to remain in business and that the violation was abated in a
timely and good faith manner.

661

On the other hand, the gravity of the violation was serious
and it involved a high degree of negligence. Taking these six
criteria into consideration, I conclude that the penalty proposed
by the Secretary is appropriate in this case.
Gravity and negligence are the only elements the penalty
criteria that can be applied to the case of an individual.
However, I find it incongruous that a company the size of
Cannelton should pay a penalty of $3,600.00, while an employee of
the company is assessed a $2,000.00 penalty. Consequently, I
conclude that a $500.00 should be assessed against both
Richardson and Patterson.
ORPER
Citation No. 4195028 issued to Cannelton Industries, Inc.
and the civil penalty petitions alleging that George Richardson
and Charles Patterson knowingly authorized the violation in the
citation are AFFIRMED. Accordingly, Cannelton Industries, Inc.,
George Richardson and Charles Patterson are ORDERED TO PAY civil
penalties of $3,600.00, $500.00 and $500.00, respectively, within
30 days of the date of this decision. On receipt of payment,
these proceedings are DISMISSED.

Administrative Law Judge
Distribution:
Tina C. Mullins, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)

John T. Bonham, II, Esq., Jackson & Kelly, P.O. Box 553,
Charleston, WV

25322 (Certified Mail}

/lt

662

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW Jll>GES
Z SKYLINE. 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH. VIRGINIA 22041

April 8, _19%

SECRETARY OF LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION {MSHA),
on behalf of LONNIE BOWLING,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 95-604-D
MSHA Case No. BARB CD 95-11
Darby Fork Mine

v.

MOUNTAIN TOP TRUCKING COMPANY,
MAYES TRUCKING COMPANY, INC.,
ELMO MAYES, WILLIAM DAVID RILEY,
AND ANTHONY CURTIS MAYES,
Respondents
\

SECRETARY OF LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
EVERETT DARRELL BALL,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 95-605-D
MSHA Case No. BARB CD 95-11
Darby Fork Mine

v.
MOUNTAIN TOP TRUCKING COMPANY,
MAYES TRUCKING COMPANY, INC.,
ELMO MAYES, WILLIAM DAVID RILEY,
AND ANTHONY CURTIS MAYES,
Respondents
SECRETARY OF LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION {MSHA),
ON BEHALF OF WALTER JACKSON
Complainant
v.

DISCRIMINATION PROCEEDING
'

.

Docket No. KENT 95-613-D
MSHA Case No. BARB CD 95-13
Darby Fork Mine

MOUNTAIN TOP TRUCKING COMPANY,
MAYES TRUCKING COMPANY, INC.,
ELMO MAYES, WILLIAM DAVID RILEY,
AND ANTHONY CURTIS MAYES,
Respondents

663

SECRETARY OF LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of DAVID FAGAN,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 95-615-D
MSHA Case No. BARB CD 95-14
Darby Fork Mine

MOUNTAIN TOP TRUCKING COMPANY,
MAYES TRUCKING COMPANY, INC.,
ELMO MAYES, WILLIAM DAVID RILEY,
AND ANTHONY CURTIS MAYES,
Respondents
QBDER DENYING NQTICE QF APPEARANCE
Mm
CERTIFICATI()N FOR INTERLQCU'l'()RY REYIEW

These dis~rimination proceedings have been initiated on the
complainants' behalf by the Secretary of Labor pursuant to
section lOS( c ) (2) of the Federal Mine Safety and Health Act of
1977 (the Act), 30 U.S.C. § 815(c) (2). Donna E. Sonner, Esquire,
has appeared on behalf of the Solicitor in the prosecution of the
subject complaints.
On December 27, 1995, Tony Oppegard, Esquire, of the Mine
Safety Project of the Appalachian Research & Defense Fund of
Kentucky, filed a notice of appearance in these proceedings "as
counsel for Lonnie Bowling, Darrell Ball, David Fagan, and Walter
Jackson." The notice of appearance did not explain the nature
and extent of Mr. Oppegard's participation in these matters given
Ms. Sonner ' s appearance in these cases. Consequently, on
February 6, 1996, I issued an Order Requesting Clarification of
Mr. Oppegard's request to appear in these matters.
The February 6, 1996, Order, citing John A, Gilbert y, Sandy
fork Mining Co .. Inc., 9 FMSHRC 1327, 1336-39 (August 1987 ) ,
rey'd on other grounds, John A. Gilbert y, FMSHEC, 866 F . 2d 1433
(D.C. Cir. 1989), as well as Commission Rule 40(b), 29 C.F.R.
§ 2700.40(b), noted that a complaining miner is precluded from
filing a private action pursuant to section lOS(c) (3) of the Act,
30 U.S.C. § 815(c) (3), if the Secretary initiates an action on
behalf of the complaining miner under section lOS(c) (2),

66 4

30 u.s.c. § 815(c) (2). The February 6, 1996, Order also noted
that although a complainant cannot bring an action on his own,
Commission Rule 4(a), 29 C.F.R. § 2700.4(b) provides·, in
pertinent part, that "[i]n a proceeding instituted by the
Secretary under section lOS(c) (2) of the Act, 30 U.S.C.
§ 815(c) (2), the complainant on whose behalf the Secretary has
filed the complaint is a party and may present additional
evidence on his own behalf (emphasis added) . "
Consequently, the February 6, 1996, Order requested
Mr. Oppegard to explain how his participation in the discovery
and trial phases of these proceedings will differ from the full
representation associated with prosecuting an individual
complaint under section lOS(c) (3) of the Act. Mr. Oppegard
replied to the February 6, 1996, Order on March 29, 1996.
Mr. Oppegard stated that he is private counsel for the affected
miners. With regard to the nature and extent of his
representational role, Mr. Oppegard stated:
\

First, it should be noted that the Nashville Solicitor's
Office has consistently taken the position (for many years)
that it does not represent the affected miners(s) in safety
discrimination proceedings. Rather, the Solicitor's Office
has long maintained that it represents the Secretary of
Labor, although the proceeding before the Review Commission
is initiated by the affected miner's filing of a
discrimination complaint with MSHA (footnote omitted) .
Unless the affected miner has private counsel, technically
he is not represented at the hearing on the merits, although
evidence adduced at the hearing certainly inures to his
benefit. It must be noted, however, that the interests of
the affected miner and the Secretary in the prosecution of a
safety discrimination proceeding are not always the same.
(Emphasis added) .
Mr. Oppegard further opined, "[o]f course, both counsel for
the Secretary and counsel for the affected miners have the right
to ask additional follow-up questions regardless of which
attorney starts the examination (footnote omitted)."

665

Thus, with the exception of providing assurances that he
would not ask ouplicative questions, Mr. Oppegard seeks to make
an unfettered appearance as private counsel in these proceedings.
Such an unlimited appearance, totally independent of, and, in
addition to, the appearance of the Solicitor, is in apparent
contradiction of Commission Rule 4(a) and the Commission's
Gilbert decision. In Gilbert, the Commission, in interpreting
the statutory provisions of section lOS(c) of the Act, held a
complainant may file a "private [discrimination] action ~
after the Secretary informs the complainant of his determination
that a violation has not occurred ... " 9 FMSHRC at 1337.
In addition, the responsibility to regulate the hearing is
committed to the discretion of the presiding judge under
Commission Rule SS(e), 29 C.F.R. § 2700.SS(e). Pursuant to
Commission Rule 4(a), the complaining miners are parties by
virtue of the Secretary's initiation of this lOS(c) (2)
proceeding. The Secretary and the complainants' interests are
the same, ~, \ establishing that the complainants engaged in
protected activity and that the adverse actions complained of
were motivated, at least in part, by that activity. While
complainants in an action brought by the Secretary may elect to
retain private counsel, the scope of private counsel's
participation must be consistent with the Commission's Rules and
Congressional intent. See 9 FMSHRC at 1339, n.6.
Allowing both the Secretary's counsel and private counsel
the unlimited discretion to examine and cross-examine each
witness would violate due process, and permit indirectly, what is
prohibited by the Commission's Rules and case precedent.
Accordingly, Mr. Oppegard's Notice of Appearance to participate
without restrictions in these proceedings IS DENIED.
Commission Rule 76(a) (1) (i), 29 C.F.R. § 2700.76(a) (1) (i),
authorizes a judge, on his own motion, to certify for review an
interlocutory ruling if his ruli~g involves a controlling
question of law that, in the judge's opinion, will materially
advance the final disposition of the proceeding. This
interlocutory decision concerns fundamental questions of law
concerning the permissibility, nature and extent of private
counsel's participation in a lOS(c) (2) proceeding that must be
resolved before the hearing of these matters, currently scheduled
for April 30, 1996, can proceed.

666

Therefore, pursuant to Commission Rule 76{a) (1) (i), THE
QUESTION HEREBY CERTIFIED for Commission review is whether
private counsel may generally appear on behalf of a complaining
miner, without regard to the Solicitor's appearance, in an action
initiated by the Secretary under section lOS{c) (2) of the Act,
and, if not, the restrictions, if any, that should be placed on
private counsel in such a discrimination case brought by the
Secretary .

Jerold Feldman
Administrative Law Judge
Distribution:
Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 \~Uchard Jones Road, Suite B-201, Nashville,
TN 37215-2862 {Regular and Certified Mail)
Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research & Defense Fund Of Kentucky, Inc., 630 Maxwelton Court,
Lexington, KY 40508 {Regular and Certified Mail)
Edward M. Dooley, Esq., P.O. Box 97, Harrogate, TN 37752
(Regular and Certified Mail)
Mary Mayes, Secretary/Treasurer, Mayes Trucking Company, Inc.,
63 East Main Street, Richwood, WV 26261 {Regular and
Certified Mail)
/me a

667

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 1 1 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.
NEWMONT GOLD COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-170-M
A.C. No. 26-00500-05510
Docket No. WEST 95-171-M
A.C. No . 26-00500-05536
Docket No. WEST 95-172-M
A.C. No. 26-00500-05537
South Area-Gold Quarry

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 95 - 520-M
A.C. No. 26-00500-05545 A
South Area Gold Quarry

RICHARD GONZALES , Employed by
NEWMONT GOLD COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . WEST 95-521-M
A.C . No . 26-00500-05544 A
South Area Gold Quarry

MICHAEL R. SIMMONS, Employed by
NEWMONT GOLD COMPANY,
Respondent

66 8

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

CIVIL PENALTY PROCEEDING
Docket No . WEST 95-541-M
A. C. No. 26-00500-05546 A

v.
South Area Gold Quarry
KEITH BROGOITTI, Employed by
NEWMONT GOLD COMPANY,
Respondent
PREHEABING RULINGS AND ORPER
Statement of the Proceedings
These cases are scheduled for a consolidated hearing in
Elko, Nevada, during the trial term April 23 through April 26,
1996. The hearing notice was issued on January 16, 1996, and
the parties were informed of the hearing location by notice
issued on Apri ~ 8, 1996.
I

On April 4, 1996, attorneys Mark N. Savit, Henry Chajet,
and Ruth Ramsey, Patton Boggs, L.L.P., Washington, D.C. {hereinafter Patton Boggs counsel) entered their appearance as counsel
for the individual three section llO(c) respondents in Docket
Nos. WEST 95-520-M, WEST 95-521-M, and WEST 95-541-M, and as
additional counsel in the corporate respondent cases, Docket Nos.
WEST 95-170-M, WEST 95-171-M, and WEST 95-172-M. Prior to this
time, from April 26, 1995, to the present, a.l.l of the respondents
have been represented by Attorney Charles Newcom, Sherman and
Howard, Denver, Colorado.
On April 5, 1996, I issued an order accepting the appearances of Patton Boggs counsel and denying their request for a
continuance of the April 23, 1996 hearing.
On Monday , April 8, 1996, I received a fascimile copy of a
Notice of Depositions filed by Patton Boggs counsel advising that
during April 9-11, 1996, they would depose ten MSHA employees and
officials and various other unnamed MSHA personnel, including all
witnesses and experts that petitioner intended to call at the
scheduled hearing. The listed indiviudals were requested to
bring certain documents which are broadly itemized in 15 groups
listed in the deposition notice .

669

On Tuesday, April 9, 1996, I received a motion from Patton
Boggs counsel to compel the petitioner to produce the previously
named MSHA individuals for depositions. Counsel stated that the
petitioner's counsel refused to provide the individuals for the
noted depositions, and included with the motion is a copy of a
letter dated April 8, 1996, from the petitioner's counsel stating
as follows:
The Secretary objects to your Notice of
Depositions served on April 5, 1996 . The Notice
is untimely as there are only two weeks remaining
before trial and your request to continue the trial
has been denied. In addition, even assuming a
notice was timely filed, the Secretary would not
make available the supervisory personnel which you
have identified in that these individuals have no
first hand information about the citations and the
probative value of such depositions is greatly outweighed by the burden posed to the Government.
Accordingly, please be informed that the persons
identified in your Notice will not appear on your
noticed dates.
The foregoing objections notwithstanding, the
Secretary will make Mine Inspector Michael Drussel
available for deposition in Elko, Nevada, on April 18,
as previ ously agreed with Charles Newsom, Esq.
Patton Boggs counsel, in their capacity as newly retained
counsel for the three individual section llO(c) respondents,
initiated a conference call with MSHA counsel Desmith and me
at 1:30 p.m., Tuesday, April 9, 1996. Counsel Newcom was not
included as part of the conference, but to avoid any further
delay, the conference proceeded, with focus primarily . on the
section llO(c) cases, and the motion to compel the depositions
of MSHA personnel in connection with those cases .
Discussion
In the course of the telephone conference, petitioner's
counsel Desmith stated that he and Attorney Newcom have agreed to
a deposition schedule and exchange of documents in preparation

67 0

for the trial and that Mr. Newcom has been furnished with copies
of many MSHA documents and materials, including excised copies of
the special section llO(c) investigation and witness . statements.
Mr. Desmith vigorously objected to the untimely requests by
Patton Boggs counsel to depose additional MSHA personnel, and he
believed this to be an unwarranted interference with his trial
preparation and the pre-trial arrangements that he and Mr. Newcom
had agreed on prior to the entry of appearance by Patton Boggs
counsel.
I expressed agreement with the petitioner's objections that
the request to compel the depositions in question, two weeks
prior to the hearing, was untimely, and I reminded the parties
that in accordance with the Commission's procedural rules, any
discovery in civil penalty cases must be initiated within 20 days
after an answer is filed to the petition for assessment of
penalties and it must be completed within 40 days after its
initiation. Although the presiding judge has discretion to
permit the exten,sion of discovery for "good cause," I find no
reasons to do so · in these cases. As previously noted in my
denial of a continuance of the hearing, the respondents have had
more than a mple notice and time for trial preparation, and any
difficulties that may be experienced by Patton Boggs counsel in
this regard is the direct result of the dilatory decision of the
three named section 110(c} respondents to retain new counsel
two week before the hearing . (I find nothing to suggest that
Attorney Newcom was a party to this decision.)
The corporate respondent in Docket No. WEST 95-171-M, and
the individual section llO (c) respondents are charged with a n
alleged violation of mandatory safety standard 30 C.F . R. 56.5002,
as stated in section 104(d) (1) "S&S" Citation No. 4139762, issued
on May 5, 1994, at 1:00 p.m. The cited condition or practice
issued by MSHA Inspector Michael J . Drussel states as ~ollows:
Commonwealth employees were working on the #2
thickner where visible mercury was found on
5/2/95 at 9:00 a.m. These employees were allowed
to work until 5/3/94 at 4:00 p.m. when mercury
vapor reading showed high levels. No mercury
vapor readings were taken b.efore this time. The
company had had mercury in this area over the last
4 years.
"This is an unwarrantable failure."

6 71

The citation was terminated one hour after it was issued,
and within the time fixed by the inspector for abatement. The
abatement action taken by the respondent states that •mercury
vapor reading (sic) are being taken and logged."
Petitioner's counsel has agreed that Inspector Drussel will
be made available for deposition at the time and place agreed
upon with Attorney Newcom. I assume that Patton Boggs counsel
will avail themselves of this opportunity to participate.
The individual respondents' assertion that the depositions
of MSHA personnel are the ~ method by which they can def end
themselves against the charges are not well taken. The
respondents have been aware of the alleged violation for which
they are charged since August 11. 1995, when MSHA's proposed
civil penalties were served, and again on August 23 and
September 8. 1995, when they filed their notices of contest. I
simply cannot believe that Mr. Newcom, the respondents' counsel
of record, ha$ not prepared the individual respondents for the
scheduled hear'ing of April 23, 1996. The respondents will have a
full opportunity to present evidence on their behalf, to crossexamine all of the petitioner's witnesses, and to examine all of
the documentary exhibits offered by the petitioner.
In the individual section llO(c) cases, the petitioner has
the burden of proving the violation by a preponderance of the
credible and relevant evidence. The petitioner must prove that
the respondents were acting as "agents" of the corporate
respondent at the time of the alleged violation and that they
"knowingly" authorized, ordered, or carried out the alleged
violation.
The cited cection 56.5002 regulation states that, "[d]ust,
gas, mist, and fume surveys shall be conducted as frequently as
necessary to determine the adequacy of control measures." The
citation alleged that visible mercury was found at 9:00 a.m., on
May 2, 1994, that employees were allowed to work until 4:00 p.m.
the next day, May 3, 1994, when mercury vapor readings showed
high levels, and that no vapor readings were taken before this
time. The citation further states that mercury had been present
in the cited area over the last four years .

672

Based on ·my reading of the cited standard and the narrative
description of the cited condition, it would appear to me that
the individual respondents are charged with ~knowingly" failing
to take mercury vapor surveys prior to May 3, 1994, when high
levels were recorded, and possibly before May 2, 1994, when
visible mercury was found. Given the regulatory language
requiring surveys "as freQJ.lently as necessary to deterrnine the
adequacy of control measures," it would appear to me that the
pivotal issue is whether or not any surveys were made prior to
May 2 or 3, 1994, and, if so, whether one may reasonably conclude
that they were made as frequently as necessary given the
prevailing conditions and circumstances at the time of the
alleged violation. I fail to comprehend how this scenario is so
unique and so difficult in terms of trial preparation requiring
the depositions of any and all MSHA personnel having the remotest
connection with the facts and circumstances surrounding the
issuance of the contested citation.
Counsel fo~ the individual llO(c) respondents assert that
all of the MSHA personnel noticed for deposition, including
supervisory personnel, have first-hand information relating to
the citation. Counsel has listed and identified these
individuals as follows:
l.

Cathy Matchett and David J. Brabank, the
special investigators assigned to the cases.

2.

Paul A. Belanger, "a party to correspondence
generated in connection with" the citation.

3.

Fred M. Hanson, the individual who "approved the
accident investigation report."

4.

Gary Frey, an individual who "participated in the
accident investigation."

5.

Robert Morley, an individual who "served as
acting supervisor during the period of time
of these matters.

6.

Margie Zelasak, MSHA's expert witness.

673

7.

Garry J. Day, the individual "who recommended
a special investigation into these matters."

An individual listed as Jaime Alvarez is not further
identified. Counsel also requested to depose "any other MSHA
inspectors, special investigators, managers in the field, subdistrict or district offices, or other MSHA personnel with any
knowledge of the citation in issue," including all witnesses,
including experts," who the petitioner intends to call at the
hearing.

In the course of the aforementioned telephone conference,
I informed Patton Boggs counsel Henry Chajet that I would deny
his request to depose Messrs. Belanger, Hansen, Frey, Day, and
Morley, because I am not convinced that they have any direct
material or relevant personal knowledge or information concerning
the merits of the cited conditions which led to the issuance of
the alleged violation or to the citation that was issued by
Inspector Dru$sel. In any event, if the petitioner calls any
of these indi~iduals to testify at the hearing, Mr. Chajet will
have an opportunity to cross-examine them.
Counsel Chajet maintained that he should at least have an
opportunity to take the depositions of MSHA special investigators
Cathy Matchett and David J . Brabank and MSHA's expert witness
Margie Zelasak. I expressed my view that special investigators
conduct an investigation aftek a violation notice has been issued
and that they have no first-hand knowledge about the conditions
that may have prevailed when the citation was issued. They
routinely, and after the fact, interview individuals who may have
information concerning the cited conditions, take unsworn hearsay
statements, note their own general opinions, and then package all
of this information and label it "Special Investigation Report."
Unless the individuals interviewed are called to tes~ify at the
hearing, subject to cross-examination, with an opportunity for
the presiding judge to evaluate their credibility, the report,
in and of itself, is of little br no probative evidentiary value.
In view of the untimely request to take depositions, and
accepting the petitioner's objection that the special investigators have no first-hand kno~ledge about the citation, I agree
that the probative value of such depositions is greatly
outweighed by the unwarranted disruption that would result so

6 74

close to the convening of the hearing. In this regard, I am not
unmindful of the rights of the individual respondents in these
cases. However, they have been represented by competent counsel
during the inception of these cases, and they are entitled to a
speedy trial. The "eleventh hour" appearance of new counsel
should not contribute to any further delays.
ORDER
In view of the foregoing, and on the facts of the case, I
cannot conclude that the respondents will be prejudiced if they
are not permitted to depose the special investigators in advance
of the hearing. Under the circumstances, Patton Boggs counsel's
request to formally depose the special investigators XS DENIED.
However, in the interest of justice, if the petitioner chooses to
call these individuals to testify at the hearing, Patton Boggs
counsel will have an opportunity to interview them before they
are called, subject to further rulings of the presiding judge.
In this regard, ·I expect the parties to work together so as to
preclude any protracted hearing delays.
In addition, if he has not already done so, and if he
intends to call them, petitioner's counsel shall also provide
to Mr. Chajet copies of any statements made by witnesses who
were interviewed by the special investigators. Petitioner's
counsel shall also provide Mr. Chajet with a copy of the special
investigation report, subject to any privileged or confidential
objectional deletions. All of this information is to be
furnished in advance of the commencement of the hearing on
April 23, 1996.
With regard to MSHA expert witness Margie Zelasak,
petitioner's counsel confirmed that he intends to call her in
connection with the "significant and substantial {S&S) "· finding
made by the inspector, and to support an argument that employee
exposure to high mercury vapors support an "S&S" finding. I
informed the parties of the possibility of stipulating to this,
and in any event, limiting any •\expert" opinion to this "S&S"
issue.
In view of the untimely request to depose Ms. Zelasak,
Mr. Chajet's request to formally depose her IS DENXBD. However,
if she is called to testify, Mr. Chajet will have an opportunity

675

to interview her in advance of her testimony, subject to the
presiding judge's rulings. Further, petitioner's counsel shall
provide Mr. Chajet with a summary of Ms. Zelasak's expected
testimony, including information (or a stipulation) concerning
her expertise, and copies of any documentary materials that may
be offered into evidence .
The request by Mr. Chajet to depose Messrs. Belanger,
Hansen, Frey, Day, Alvarez and Morley IS DENIED.

~-o/f~
Administrative Law Judge

Distribution:
Stephen R. D~Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, 71 Stevenson Street, Suite 1110,
San Francisco, CA 94105 (Certified Mail)
Charles W. Newcom, Esq., Sherman & Howard, L.L.C.,
633 Seventeenth Street, Suite 3000 , Denver, CO 80202
(Certified Mail)
Mark N. Savit, Esq., Henry Chajet, Esq., Ruth L. Ramsey,
Esq., Patton Boggs, L.L.P., 2550 M Street, N.W., Washington,
D.C. 20037 (Certified Mail)

\lh

6 76

FEDERAL MINE SAFETY AND HEALTH REVIEW CdMMISSION
OFFICE OF ADMINISTRATIVE LA~ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 12, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On Behalf of Frank Scott,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. Kent 96-53-D
MSHA Case No. BARB CD 95-21
No. 68 Mine

LEECO, INCORPORATED,
Respondent
ORPER IMPOSING RULE OF CQNFIDENTIALITY
On April 9, \1996, and subsequent to the commencement of a
hearing on the merits of this discrimination proceeding, the
parties agreed to settle the matter. The terms and conditions of
the settlement were placed on the record.
Counsels orally affirmed
their agreement to the terms and conditions, as did Frank Scott,
the person upon whose behalf the complaint was brought. I orally
approved the settlement and upon receipt of the transcript I will
affirm that approval in a written decision. The parties requested
that the terms of the settlement with respect to Scott be sealed.
I agreed and stated that I would include that condition in the
written decision. The terms and conditions of the settlement will
be subject to review only by the Commission or another appellate
body.

The parties are advise that until a written decision is
issued, the terms and conditions of the settlement are to remain
CONFIDENTIAL. Counsel are ORDERED not to discuss the terms and
conditions with any persons other than counsels of record and
Scott. Further, when copies of the transcript are received,
counsels are ORDERED not to give copies of the transcript to any
persons, excepting each other or Scott, or to otherwise divulge the
contents of the transcript as it relates to the terms and
conditions of the settlement.

Jj)?-/~dfJ/~~

David F. Barbour
Administrative Law Judge

677

.:=

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S·. Dept. Of
Labor, 2002 Richard Jones Rd., Ste. B-201, Nashville, TN 37215-2862
(Certified Mail)
Tony Oppegard, Esq., Appalachian and Defense Funds of Kentucky,
Inc., 630 Maxwelton Court, Lexington, KY 40508 {Certified Mai l)
Leona A. Power, Esq., Reece & Lang, P.S.C., London Bank & Trust
Bldg., 400 South Main St., P.O. Drawer 5087, London, KY 40745-5087
(Certified Mail)
Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs
1700 Lexington Financial Circle, Lexington, KY 40507
{Certified Mail)

\me a

·u.s. Government Printing Office: 1996. 405-710IS3379

678