MAY 1995

COMMISSION DECISIONS AND ORDERS
There were no Commission decisions in May.
ADMINISTRATIVE LAW cTUDGE DECISIONS
05-02-95
05-04-95
05-04-95
05-05-95
05-05-95
05-09-95
05-10 - 95
05-10-95
05-10-95
05-15 - 95
05-17-95
05-18 - 95
05-18-95
05 - 19-95
05-23-95
05-24-95
05-24-95
05-25-95
05-25-95
05-26-95
05-31-95
05-02-95

B & A Coal Company, Inc.
Pyramid Mining Incorporated
Dixie Fuel Company
Gemini Mining Company
AT & E Enterprises, Inc.
Terry McGill v. U.S. Steel Mining
F W Contractors Incorporated
Sec . Labor for Larry P. Smith v.
Doverspike Brothers Coal· Co.
Robbie A. Smith v. Centralia Mining Co .
Western Fuel s - Utah, Inc.
R B Coal Company, Inc.
Pierce Sand Company
Ideker, Inc.
Mineral Transport, Inc.
Alpha Mining Company
Sec. Labor for William Kaczmarczyk
v. Reading Anthracite Co.
Sec. Labor for James Hyles, et al. v.
All American Asphalt
BSC Construction, Inc.
Peabody Coal Company
Arcata Readimix
Sec. Labor for Mark Beyer v . KerrMcGee Coal Corporation
Harbor Rock, Incorporated

KENT 94-89
KENT 93-184
KENT 94-1210
CENT 94-206
WEST 94-259-M
SE
95 - 132-D
CENT 94-198-M

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

722
727
732
739
748
750

PENN 95-111-D
WEST 95-10 - D
WEST 94-391-R
KENT 94-1244
CENT 94-212-M
CENT 94-217-M
WEVA 94-391
KENT 94-1194

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

751
755
756
764
767
769
771
773

PENN 95-1-D

Pg. 784

WEST 93-336-DM
WEVA 94-401
KENT 93-369
WEST 93-376 - M

Pg.
Pg.
Pg.
Pg.

WEST 95 - 221 - D
WEST 95 - 64-M

Pg. 824
Pg. 825

WEVA 94-360
WEST 94-637-M
KENT 94-957
WEST 94-623-M
KENT 95-345
KENT 95-357
KENT 95-387
LAKE 94 - 72

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

719

799
809
81.1
816

APMINISTRATIYE LAW JUPGE ORDERS
05-09-95
05-09-95
05-16-95
05-10-95
05-31-95
05-31-95
05-31-95
05-31-95

Old Hickory Coal Company
Cedar Creek Quarries, Inc.
Jericol Mining Incorporated
Eugene Russell, James Nichols, et al.
Lone Mountain Processing, Inc.
Austin Powder Company
Ibold Incorporated
Buck creek Coal, Inc.

i

827
830
833
835
839
841
843
845

MAY

1995

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

Secretary of Labor , MSHA v. Enlow Fork Mining Company, Docket No. PENN 94 - 400 .
(Judge Weisberger, April 6, 1995)
Secretary of Labor, MSHA v. Enlow Fork Mining Company, Docket No. PENN 94-259 .
(Judge Weisberger, April 6 , 1995)
Secretary of Labor, MSHA v. Walker Stone Company, Docket No . CENT 94-97 - M.
(Judge Maurer, April 12, 1995)
Review was not g ranted in the fol lowing cases during the month of May:
Secretary of Labor, MSHA v . Wyoming Fuel Company and Earl White empl oyed by
Bas in Resources, Inc . , Docket Nos. WEST 92 - 340, etc.
(Judge Manning, April 6,
1995)
United Steelworkers of America on behalf of Local 5024 v. Copper Range Company,
Docket No. LAKE 94 - 614-CM.
(Judge Maurer, April 4, 1995)

ii

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MAY

2 1995

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-89
A.C. No. 15-16928-03525
No. 1 Mine

B & A COAL COMPANY,
INCORPORATED,
Respondent
DECISION
Appearances:

Brian W. Dougherty, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
and Gerald W. McMasters, Mine Safety and Health
Administration, Pikeville, Kentucky, for the
Petitioner.
Abram Adkins, J;Lt:Q .s_e, for the Respondent.

Before:

Judge Weisberger
Statement of the Case

This case is before me based upon a Petition for Assessment
of Civil Penalty filed by the Secretary of Labor (Petitioner)
alleging a violation by B & A Coal Company of 30 C.F.R.
§ 75.523-3.
A hearing on this matter was held in Paintsville,
Kentucky, on March 22, 1995.
Findings of Fact and Discussion
On August 3, 1992, Douglas Looney an MSHA Inspector,
inspected a drift opening mine, operated by B & A Coal Company
("Operator"). He inspected three rubber-tired self-propelled
battery operated Mescher tractors. The tractors were used to
transport coal from the working section to the surf ace dump
point, a distance of 1,500 feet. The terrain was relatively
level with "some dips" (Tr. 50). These vehicles were equipped

719

with parking brakes that engaged when a panic bar was applied .
Also they were capable of being operated manually . Looney
disconnected the batteries on these vehicles and observed that
"the brake pads didn't come out against the brake disk" {sic)
{Tr . 67) .
Looney issued a section 104(a) citation for each of these
vehicles alleging, in each case, a violation of 30 C.F.R.
§ 75.523-3.
Section 75.523-3, supra provides that, pertaining to
rubber-tire self-propelled electric haulage equipment used in the
active workings of underground mines that " . .
(b) automatic
emergency-parking brakes shall . . . (2} engage automatically
11
within 5.0 seconds when the equipment is deenergized . . .
The Operator did not rebut, contradict, or impeach the
testimony of Looney regarding his observations and actions.
Abram Adkins, an agent of the Operator, agreed that when the
vehicles are deenergized the parking brakes "wouldn't set up"
(Tr . 77). As a defense, the Operator argues, in essence, that
nothing was available from the manufacturer to allow the brake to
engage upon being deenergized. Adkins testified that he put
"everything" on the tractors that was "available", and the
Pikeville MSHA office "approve it" (sic) {Tr. 78. 79), Adkins
stated as follows: "I've run a tractor for 30 year {sic) and I've
never had a man hurt 11 (Tr. 87) .
The terms of Section 75.523-3, supra, are clear,
unequivocal, and unconditional . Based upon the testimony of
Looney, I conclude that the equipment at issue did not engage
automatically within 5.0 seconds when the equipment was
deengerized.
I thus conclude that the Operator did violate
Section 75.523-3, supra.
Adkins conceded that he was aware that the brakes on the
vehicles in questions would not engage when the equipment was
deenergized . It was his testimony, however, that in essence, he
put everything available on the tractors, and that the Pikeville
MSHA Office approved it.
Petitioner did not impeach or
contradict this testimony.
I find on the basis of this testimony
that the Operator's negligence has been mitigated to some degree.
I find that a penalty of $50 is appropriate for each of the cited
conditions.

720

ORDER
It is ORDERED that, within 30 days of this decision, the
Operator shall pay a civil penalty of $150.

~e~

Administrative Law Judge

Distribution:
Brian W. Dougherty, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215
(Certified Mail)
Gerald W. McMasters, Mine Safety and Health Administration,
Ballston Tower #3, Room 414, 4015 Wilson Blvd., Arlington,
VA 22203
(Certified Mail)
Mr. Abram Adkins, 1252 Greasy Creek Road, Shelbiana, KY
(Certified Mail)
/ml

721

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

MAY

4 1995

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-184
A. C. No. 15-11620-03533

I

No . 2 Hall
PYRAMID MINING INCORPORATED,
Respondent

DECI SI ON
Appearances:

Susan E. Foster, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Carl B . Boyd, Jr . , Esq . , Meyer, Hutchinson, Haynes
& Boyd, Henderson, Kentucky, for the Respondent.

Before:

Judge Weisberger

On October 31, 1994, the Commission issued a decision that
vacated my determination that Pyramid Mining Incorporated
("Pyramid") did not violate 30 C . F.R . § 77.1505 by failing to
block auger holes, because the holes had not been 11 abandoned"
within the meaning of the standard (16 FMSHRC 2037 (October
1994)) .
In its decision, the Commission remanded the matter to
me to consider whether Pyramid violated Section 77.1505, supra,
by failing to block the cited holes at the earliest reasonable
time, taking into account the toilowing factors: the existence of
any active mining in the area in question, the period of time
that had passed since holes were created in the initial coal
e xt r action, whether the operator has taken action to resume
drilling, and the hazards presented by the holes" (16 FMSHRC
supra, at 2040) .

722

On November 2, 1994, I initiated a telephone conference call
with counsel for both parties, to determine if counsel would seek
an evidentiary hearing on the issues raised by the Commission's
remand.
Counsel were granted additional time to determine their
positions. On November 15, 1994, in a subsequent telephone
conference call, counsel advised that they each requested an
evidentiary hearing, and it was mutually agreed that the matter
be heard on February 1, 1995. In a subsequent telephone
conference on December 15, 1994, Respondent requested an
adjournment due to the scheduling of another trial on
February 1, and Petitioner did not oppose the request. The
matter was rescheduled, and heard in Evansville, Indiana on
February 16, 1995.
At th e hearing, MSHA inspector Darold Gamblin testified for
Petitioner, and James Michael Hollis, Respondent's Safety and
Reclamation Supervisor, testified for Respondent. Both Gamblin
and Hollis had testified at the initial hearing on July 8, 1993.
I.

Findings of Fact

Based on evidence adduced at the initial hearing, and at the
supplemental hearing held on February 16, 1995, I make the
following findings of fact, in addition to those made in my
initial decision of September 23, 1993 (15 FMSHRC 1950 (1993):
1. On March 20, 1992, when Gamblin inspected the
subject site, active mining was taking place in
an area approximately 2000 feet from the area where
the unblocked hose was located. There is no clear
convincing evidence to establish the precise period of
time that had passed since holes were created in the
initial coal extraction. Gamlin indicated that he had
seen the same holes in January 19, 1992, during a
previous examination. Joe Clark, Respondent's Ground
Manager, when asked at the initial hearing, when the
holes were initially drilled answered as follows:
"(t]hey would .haY.e. been drilled between November and
March" (Tr. 58, September 23, 1993) (Emphasis added).
James Hollis, Respondent's Safety and Reclamation
Supervisor, testified that he did not recall when the
holes were created.

723

2. In discussions Hollis had with the contractor
responsible for drilling the holes over the pe~iod
November, December 1991 and January 1992, the
contractor was informed that, regarding the holes that
had not been fully penetrated, 11 • • • we were going to
attempt at that time to re-enter (sic) them 11 (Tr. 133}.
However, there is no evidence that Pyramid had taken
action to resume drilling.
3. There was no fence or other device physically
blocking the entrance to any of the unblocked holes .
Nor were there any signs specifically warning persons
of the hazards involved in entering these holes and
warning persons to stay out of them.
Children from
a nearby residential area might enter these holes.
A person entering an unblocked auger hole could
encounter the hazards attendant upon exposure to
methane, unsupported roof, or accumulations of water.
II.

Discussion
A.

Violation

According to Hollis, Pyramid considers the area where holes
had been augered and the area where mining was taking place on
the date cited, to be 11 all one pit 11 (Tr . 130). However, the
record is clear that at the date Pyramid was cited, active mining
was taking place in a section approximately 2000 feet away from
the cited auger holes. Although a finding cannot be made as to
the precise amount of time that had elapsed from the time the
holes were created until they were cited in March 1992, it
appears that the cited holes were augered during the months of
November 1991, December 1991 and January 1992 (See Exh~bit
R-2} . Both Hollis and Clark testified at the initial hearing
that, in essence, it was Pyramid's intent to have the holes
redrilled to their full length. Hollis testified at the
February 16 hearing that the contractor responsible for drilling
the holes was informed in November and December 1991 and in
January 1992, that Pyramid had decided to attempt to redrill the
holes. However , there is no evidence that Pyramid has taken any
action to resume drilling of these holes. Respondent has not
impeached or contradicted Gamblin's testimony that the holes were

724

not ventilated to their full depth, and that methane accumulates
in the holes. Nor did Respondent contradict or impeach Gamblin's
testimony that cave-ins could occur in the holes du~ to
unsupported roof. Also, Gamblin 1 s uncontroverted testimony
establishes that the holes could become filled with water, which
also would pose a hazard.
Following the dictates of the Commission in its decision in
this matter, 16 FMSHRC supra, and considering the factors set
forth in the Commission's decision, as discussed abo ve, I
conclude that Pyramid did violat e Section 77.15 0 5 supra, by
failing to block the cited h o les at the earliest possible time.
B.

Significant and Substantial

According to Gambli n there had been three previous
methane ignitions in auger holes on the cited property. He also
ref erred to an accident that had occurred at another mine when
methane was ignited in a drilling operation which lead to an
explosion and injuries. There was no fence surrounding the pit
area, and there were no signs warning persons not to go there or
warning of dangers of the unblocked holes.
In order for a violation to be significant and substantial,
it must be established that there was a reasonable likelihood of
an injury producing event (U.S. Steel Mining Company, .I..n.c..,
7 FMSHRC 1125, 1129 (1985)). Hence, it must be established that
there was a reasonable likelihood of a person being exposed to
the hazards of the abandoned holes.
It is clear that persons
could have entered the unblocked holes. However, there is
insufficient evidence to predicate a conclusion that such an
event was reasonably likely to have occurred.
Indeed, on crossexamination, Gamblin was asked whether there was a reasonable
likelihood of persons entering the holes. He indicated only that
such an event was possible. For these reasons, I find that it
has not been established that the violation was significant and
substantial.
C.

Penalty

In assessing a penalty, I find that the penalty to be
imposed should be mitigated in that ~espondent did not consider
the holes to be abandoned and intended to have them redrilled .

725

Hence, there was only a low level of negligence on its part in
connection with the violation of Section 77 . 1505, supra, which
requires the blocking of such holes before they are abandoned .
I find that a penalty of $100 is appropriate for this violation .
ORDER
IT IS ORDERED that the citation at issue be amended to a
violation that is not significant and substantial.
It is further
ordered that Respondent shall, within 30 days of this decision,
pay a civil penalty of $100 .

k~

Administrative Law Judge
Distribution:
Susan E. Foster, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215-2862
(Certified Mail)
Carl B. Boyd, Jr., Esq., Meyer, Hutchinson, Haynes & Boyd,
120 North Ingram Street, Suite A, Henderson, KY 42420 (Certified
Mail )

/ml

72 6

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

MAY

4 1995

SECRETARY OF LABOR,

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 94-1210
A.C. No. 15-08216-03627
No. 2 Mine

DIXIE FUEL COMPANY,
Respondent
DECISION

Appearances:

Thomas A. Grooms, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for
the Petitioner;
-H. Kent Hendrickson, Esq., Rice & Hendrickson,
Harlan, Kentucky, for the Respondent.

Before:

Judge Weisberger
Statement of the Case

This case is before me based upon a Petition for Assessment
of Civil Penalty filed by the Secretary of Labor (Petitioner)
alleging two violations by Dixie Fuel Company (Respondent) of
30 C.F.R. Section 75.202(a). Subsequent to notice, the case was
scheduled for hearing in Johnson City, Tennessee, on March 7,
1995. At the hearing, Petitioner made a motion to approve a
settlement agreement regarding' Citation No. 4249321. Respondent
has agreed to pay the full assessed penalty of $189. I have
considered the representations and documentations submitted
relating to this citation, and I conclude that the proffered
settlement is appropriate under the criteria set forth in
Section llO(i) of the Act. Accordingly, the motion to approve
settlement is granted.

727

The remaining matter in this case, Citation No. 4249322, was
heard on March 7, 1995. Andron Wilson testified for Petitioner.
Michael McMillan, Lewis Eugene Blevins, and Eddie Sargent
testified for Respondent. Counsel for both parties elected not
to file a post hearing brief.
Findings of Fact and Discussion
I.

Violation of Section 75.202(a ) . supra

On March 22, 1994, Andron Wilson, an MSHA Inspector,
inspected Respondent's No. 2 mine, an underground coal mine.
In
essence, he testified that the roof was loose and broken in an
approximately 300 foot area of entry Nos. 4 and 5. He said that
a lot of loose rock had already fallen, and that "a lot of them
that were left were cracked and hanging down" (Tr. 36). He
estimated that the largest chunks of rock were 24 inches by
approximately 30 inches. According to Wilson, the rocks
"averaged" (Tr. 37) up to 8 inches thick . He stated that he
could hear chunks of rocks falling when he made his inspection.
The roof was supported according to Respondent's roof
control plan. Sixty inch bolts had been inserted into the roof
on 4 foot centers. Also, steel straps, 20 inches wide and 16
feet long, were held to the roof by bolts. The distance between
the bolts was 4 0 inches. Wilson indicated that "normally" there
is an "average" of 32 inches of "open roof" between straps
(Tr. 35) .
Although no mining was taking place at the time, two men
were working in the No. 4 entry. According to Wilson, there were
"many areas" of unsupported roof, and loose dry rock containing
cracks and gaps throughout the section at issue where Michael
McMillian, the section foreman, had directed the workforce to
"set up this section" (Tr. 36).
Wilson issued a Section 104 (d) (1) citation alleging a
violation of 30 C.F.R. § 75.202(a) which provides, as pertinent,
as follows:
"[t]he roof, . . . of areas where persons work or
travel shall be supported or otherwise controlled to protect ·
persons from hazards related to falls of the roof . . . . "

728

Michael McMillian, who was a bolter and foreman on March 22,
1994, and who accompanied Wilson, stated that he did not see any
hazardous conditions in the roof of entry No. 4. He said that

nothing was falling from the roof. He testified that he looked
at the entries along with Wilson and that the condition of the
roof was "not as bad as he {Wilson ) was saying it was because we
had straps in it" {Tr. 83). He stated that, regarding the safety
of the roof, "I did not see anything wrong with it at the time"
{Tr. 8 9) •
Lewis Eugene Blevins, Respondent's Superintendent, who also
was present with Wilson, indicated that before the inspection on
March 22, there was no likelihood of an accident or injury
occurring in the area due to rock falls. However, on crossexamination, he was asked whether at the start of the shift on
March 22, the area in question needed scaling, and he answered
as follows: 11 • • • you might have found one or two little pieces
you might needed to scale" (sic) (Tr. 108). He further
elaborated as follows: 11 [w) ell, that would be hard to say if
it needed scaling. You would have to -- when you make your
examination, then you would determine if it needed scaled or
not, which I didn't see nothing that needed scaled down" (sic)
(Tr. 109) .
I find the testimony of Respondent's witnesses insufficient
to impeach or significantly contradict the testimony of Wilson
regarding his observations. Further, I find that there is
insufficient evidence in the record to impugn any improper motive
on the part of Wilson regarding his opinion that the conditions
he observed were hazardous to miners working in the area. I thus
find that although the roof had been supported by bolts and
straps, the conditions were such that the roof was not adequately
controlled to have protected the miners working in the area
from the hazardous conditions associated with loose and broken
roof. For these reasons, I conclude that Respondent did violate
Section 75.202(a), supra. 1

In essence, according to Blevins, the roof had formed an
arch between the straps of the roof. He opined that if loose rock
is pulled around the straps, which provide the bases for the
arches, the roof bolts would become dislodged. Compliance with
Section 75.202(a) does not require the pulling of loose rock around
1

729

According to Wilson, had the conditions in the roof not been
abated the loose and broken rocks would have eventually fallen,
time causing serious injuries.
II.

Significant and Substantial

According to McMullian, after the inspection Wilson told him
to pry down loose rock and that "a lot of it wasn ' t as loose as
what he (Wilson) thought it was", and that "we was having to
force it down", as "there wasn't nothing that was loose" (sic)
(Tr. 86). McMillian indicated that in his 9 years of experience
working at the mine, he does not recall any injuries resulting
from draw rock "between these straps" (Tr. 85). In the same
fashion, Blevins testified that, in his 10 years at the mine, he
could not recall any problems or injuries from rock falls in the
area in question. He opined that there was no likelihood of an
accident from a rock fall. He indicated that he would feel
comfortable working in the area "as it wasu on March 22
(Tr. 100) .
I have considered the above testimony of Respondent's
witnesses concerning the likelihood on an injury resulting from
the cited conditions. However, due to the extent and size of
loose material as set forth in Wilson's testimony, I conclude
that the violation was significant and substantial (See, Mathies
Coal Co., 6 FMSHRC 1, 3-4 (1984) ) .
III.

Pnwarranable Failure

The area in question was preshifted prior to its being cited
by Wilson . According to Wilson, Blevins and McMillian did not
deny that there were any problems with the roof. Both McMillian
and Blevins, in essence, opined that the cited conditions were

footnote No. 1 cont'd.
straps. Hence, even if arches were present in the roof, Respondent
is not relieved from complying with the terms of Section 75.202(a),
supra requiring the support or control of the roof to protect
miners from the hazards related to roof falls.

730

not hazardous. According to Wilson, when he discussed the cited
conditions with McMillian and the need to remove the loose rock,
McMillian told him that " ... if I pull it today, its just going
to need pulled again tomorrow" (sic) {Tr. 39). McMillian
explained that if rock is pulled off the straps, the roof loosens
and has room to move.
Given the extent of the roof area that had loose and broken
roof, the fact that the roof had been inspected that morning on a
preshift examination, and the fact that men were working in the
area, I conclude that the violation herein resulted from more
than ordinary negligence, and reached the level of unwarrantable
failure.
{See, Emery Mining Corp., 9 FMSHRC 1997, 2203 - 2204
(1987) . )

I find that a penalty of $3,500 is appropriate for this

violation.
ORDER
IT IS ORDERED that, within 30 days of this decision,
Respondent pay a total penalty of $3,689.

Avram Weisberger
Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215-2862
{Certified Mail ).
H. Kent Hendrickson, Esq., Woodland Hills, Drawer 980, Harlan,
KY 40831
(Certified Mail)

/ml

731

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

MAY

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

GEMINI MINING COMPANY,
Respondent

5 1995

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 94-206
A . C. No. 03-01736-03505
Docket No. CENT 94-213
A.C. No. 03-01736-03507
Docket No. CENT 94-235
A.C. No. 03-01736-03508
Wilkem No. 1 Mine
DECISION

Appearances :

Robert A. Goldberg, Esq., Office of the
Solicitor, U.S. Department of Labor,
Dallas, Texas, for Petitioner.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed
by the petitioner against the respondent pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C . § 820(c), seeking civil penalty assessments for
nine (9) alleged violations of certain mandatory safety
standards found in Parts 48 and 75, Title 30, Code of Federal
Regulations. A hearing was conducted in Fort Smith, Arkansas,
and the petitioner appeared, but the respondent did not.

732

Issues
The issues presented in these proceedings include the fact
of violation, whether some of the violations were "significant
and substantial," and the appropriate civil penalty assessments
to be made for the violations.
Applicable Statutory and Regulatory Provisions
1.
The Federal Mine Safety and Health Act of
1977, 39 u . s.c. § 301, ~ ~·
2.

Sections llO(a) and llO(i) of the Act.

3.

Commission Rules, 29 C.F.R.

§

2700.1,

et~

Stipulations
The petitioner's counsel produced the following stipulations
for the record, and he stated that he had not reviewed them with
the respondent, but had no reason to believe that the respondent
would object to them (Tr. 6-8 ) :
1.
The respondent is engaged in mining and
selling minerals, and its mining operations affect
commerce.
2.
The respondent is the owner and operator
of the Wilkem #1 Mine, Mine Identification
Number 03-01736.
3.
The respondent is an operator within the
meaning of the Mine Act.
4.
The respondent is subject to the jurisdiction
of the Federal Mine Safety a~d Health Act of 1977,
30 U.S.C. Section 801, .e.t. ~· (Mine Act) .
The Administrative Law Judge has jurisdiction
5.
over this matter.

733

6.
The subject orders were properly served
by a duly authorized representative of the Secretary
of Labor, the Mine Safety and Health Administration,
upon an agent of the respondent on the dates and
places stated therein. Accordingly, the orders may
be admitted into evidence for the purpose of establishing their issuance and not for the truthfulness
or relevancy of any statements asserted therein.
7.
The proposed penalties as amended by
the parties in the course of their settlement
negotiations will not affect the respondent's
ability to continue in business.

Discussion
As previously noted, the petitioner entered an appearance
at the hearing, but the respondent did not. The parties
informed me of their proposed settlements, for the first time,
shortly after my arrival in Fort Smith the day before the
hearing. The respondent's representative advised me in the
course of a telephone conference that he was unable to appear
at the hearing, and that since he reached a settlement with the
petitioner, he believed that his appearance was not necessary.
I accepted the respondent's excuse for not appearing pursuant
to notice and advised him that I would not hold him in default
pursuant to Commission Rule 2700 . 66, 29 C.F.R. § 2700 . 66,
particularly since he was acting 121:Q ~ and agreed to a settlement with the petitioner in good faith, and did not dispute
the violations except for the proposed penalty assessments .
The citations, initial assessments, and the proposed
settlement dispositions for the violations in these cases are
as follows:
CENT 94-206

Order No.
3589714
3589716

12/13/93
12/13/93

30 C.F.R.
Section

Assessment

Settlement

75.370(a)
48.6(a)

$3,800
$ 600

$1,000
$ 600

734

CENT 94-213

Order No.

~

30 C.F.R.
Section

3589703
3589707
3589712
3591472
3589723
3589724

12/07/93
12/08/93
12/08/93
12/13/93
1 / 03/94
1 / 03/94

75. 370 (a) (1)
75.1714{b)
75.306{b)
75.503
75.360(a)
75.220(a) (1)

~

Statutory
Section

Assessment

Settlement

$1,800
$2,300
$2,500
$2,400
$4,500
$2,800

$1,000
$1,000
$1,000
$1,000
$1,400
$1,000

Assessment

Settlement

$4,800

Vacated

CENT 94-235

Order No.
3589728

1/12/94

104 (d) (2) of
the Act

The petitioner 1 s counsel presented arguments in support of
the proposed settlement. Counsel stated that the respondent
acquired the mine and began developing it on September 30, 1993,
and that the inspection which resulted in the violations was the
first MSHA "AAA inspection for the respondent. MSHA Inspector
Lester Coleman, who was present in the courtroom, confirmed that
this was the case.
Petitioner 1 s counsel confirmed that in the course of the
settlement negotiations, the respondent did not dispute the
fact of violations, and took issue only with the amount of the
proposed penalty assessments which it believe were unreasonable
and excessive . Counsel stated that the mine is no longer in
operation and that it has been closed down by MSHA by virtue
of an outstanding section 104(d) (2) order issued in June, 1994 .
Inspector Coleman confirmed that this was the case {Tr. 22-24) .
Inspector Coleman stated that when the mine was in
operation, it employed six miners and an on-site engineer, and
produced 3,496 tons of coal annually .
I conclude and find that
the respondent is a small mine operator, and that it is no longer
actively mining the subject mine where these violations occurred
(Tr . 2 7 - 2 8 ) .

735

The record reflects that all of the violations that are
the subject of these proceedings were terminated after the
respondent corrected and abated the cited conditions .
Petitioner ' s counsel and Inspector Coleman confirmed that the
respondent took corrective action after it was served with the
violations.
With respect to section 104(a) non- 11 S&S" Citation
No. 3589728, January 12, 1994 (Docket No. CENT 94-235), the
petitioner's counsel moved to withdraw the proposed civil
penalty assessment and to vacate the citation on the ground
that it is duplicative of a violation cited in section 104(d) (2)
Order No. 3589724, issued on January 3, 1994, in Docket
No. CENT 94-213. The motion was granted from the bench, and
my ruling in this regard is re-affirmed (Tr. 9-10, 20).
Conclusion
After careful review and consideration of the pleadings,
and the arguments in support of the proposed settlement of these
cases, I conclude and find that the proposed settlement dispositions are reasonable and in the public interest .
I take note of
the fact that all of the violations were abated, and there is no
evidence of any accidents or injuries resulting from the cited
conditions or practices.
I have also considered the fact that
the respondent is a small mine operator and that the subject mine
is closed and not presently producing coal. Under all of these
circumstances, and pursuant to Commission Rule 31, 29 C.F . R .
§ 2700.31, the settlements agreed to by the parties ARE APPROVED .
ORDER
In view of the foregoing, IT IS ORDERED as follows:
1.
Section 1 04 (a) non- 11 S&S 11 Citation No. 3589728,
issued on January 12, 1994, ~nd alleging a failure
by the respondent to comply with a previously issued
section 104(d) (2) order IS VACATED, and the
petitioner's civil penalty proposed IS DISMISSED.

2.
The respondent IS ORDERED to pay civil penalty
assessments in the settlement amounts shown above in

736

satisfaction of the enumerated citations for each of
the cases. The petitioner has confirmed that the
respondent has paid $2,000 in partial payment of the
total settlement amount in these cases. The remaining
payments are to be made to MSHA in accordance with the
following schedule:
Date Due
May 20, 1995
June 20, 1995
July 20, 1995
August 20, 1995
September 20, 1995
October 20, 1995

Payment Due
$1,000
$1,000
$1,000
$1,000
$1,000
$1,000

Payments shall be made by certified or cashier's
check made payable to 11 The U.S. Department of Labor, MSHA,"
and mailed to Mine Safety and Health Administration,
P.O. Box 360250M, Pittsburgh, PA 15251-6250. Each payment
instrument shall include the relevant docket numbers and
.
assessment control numbers,
CENT 94-206, A . C. No . 03-01736; "
CENT 94-213, A.C. No. 03-01736-03507; and CENT 94-235,
A.C . No . 03-01736-03508. Compliance with this payment schedule
requires the respondent to have his monthly payments deposited
in the U . S. Mail by the dates listed above.
These decisions will not become final until such time as
full payment of the $6,000 balance due is made by the respondent
to MSHA, and I retain jurisdict i on in these proceedings until
payment of all installments are remitted and received by MSHA.
In the event the respondent fails to comply with the terms of the
settlement, the petitioner may file a motion seeking appropriate
sanctions or further action against the respondent, including a
reopening of the cases.
In the event the respondent fails to
timely remit its monthly payments·, the remaining balances will
become due and immediately payable to MSHA. Upon receipt of all
payments, these proceedings are dismissed.

ff~~~
Administrative Law Judge

737

Distribution:
Robert A. Goldberg, Esq ., Office of the Solicitor,
U. S. Department of Labor, 525 Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)
Edward E. Smock, President, Gemini Mining Corporation,
P.O. Box 86, Somerset, PA 15658 (Certified Mail )

/lh

738

FEDERAL MINE SAFETY AND HEALTH REVIEW COMM I SSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3 5 77/FAX 303-844-5268

MAY

5 1995
CIVIL PENALTY PROCEEDING

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

Docket No . WEST 94-259-M
A.C. No. 04-05146-05503

v.

AT&E Mine
AT& E ENTERPRISES, INC.,
Respondent
DECISION

Appearances:

Alan M. Raznick, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California, for Petitioner;
Gregory J. Roberts, Esq., Christensen & Barrus,
Fresno, California, for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor, acting through the Mine
Safety and Health Administration ("MSHA"), against AT&E Enterprises, Inc. ("AT&E 11 ) , pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and
820. The petition alleges five violations of the Secretary's
safety standards. For the reasons set forth below, I vacate one
citation, modify one citation, and assess civil penalties in the
amount of $200.00 .
A hearing was held in this case on December 13, 1994, in
Fresno, California . The parties presented testimony and filed
post-hearing briefs.
I.

DISCUSSION WITH FINDINGS OF fACT AND CONCLUSIONS OF LAW

A. Background
The AT&E Mine is a small, underground gold mine in Mariposa
County, California. The mine had been operated in the pe.st and
AT&E was in the process of rehabilitating it .
(Tr. 24) . At the
time of the inspection, December 1, 1993, no ore had been extracted. The mine is located at the top of a mountain and its portal
opens into a drift that is supported by timber. AT&E was replacing old timber sets with new timber sets and mucking out loose
rock . Miners had been working underground for less than two

739

months.
Id . At the time of the inspection, miners had replaced
timbers about 50 feet into the drift from the portal. Mike
Garoogian is president and sole owner of AT&E.
(Tr. 110). The
inspection was conducted by MSHA Inspector David Kerber.
Section llO(i) of the Mine Act, 30 U.S . C. § 820(i), sets out
six criteria to be considered in determining the appropriate
civil penalty . I find that AT&E was issued two citations in the
24 months preceding the inspection in this case.
(Tr. 6).
I
also find that AT&E was a small operator, employing about 18
people, with three miners working underground.
(Tr. 17 , 112).
AT&E reported about 19,350 man-hours over the previous year.
(Tr. 6).
I also find that the civil penalties assessed in this
decision would not affect AT&E's ability to continue in business .
The conditions cited by the i nspecto r were all timely abated.
I
find that AT&E is concerned about the safety of its miners and
made good faith efforts to comply with MSHA's safety standards .
B.

Citation No . 3932726

This citation alleges that the "timber located at the mine
entrance in the portal was not provided with a fire suppression
system, covered with a material equivalent for fire protection,
or fire-retardant paint to prevent a fire." The citation states
that the timber was exposed for about 55 feet.
The safety
standard cited, 30 C.F.R. § 57.4560, provides, in pertinent part:
For at least 200 feet inside the mine
porta l . .. timber used for ground support in
intake openings and in exhaust openings that
are designated escapeways shall be - (a)
Provided with a fire suppression
system, . . . capable of controlling a fire in
its early stages; or
(b)
Covered with shotcrete, gunite, or
other material with equivalent fire protection characteristics; or
(c) Coated with fire-retardant paint or
other material . . . .
There is no dispute that the timbers were not protected with
a fire suppression system, covered with shotcrete or other material, or coated with fire-retardant paint. Matthew Swanson, operations officer for the mine, testified that AT&E had considered
how to protect the timbers and had purchased fire-retardant paint
for that purpose.
(Tr. 85 - 89). He stated that AT&E planned to
spray on the paint , but that they had not done so because the
timber was still wet.
Id . He stated that due to the remote location of the mine, AT&E operates a sawmill at the mine site and
cuts its own timber out of sugar pine trees on mine property. He
stated that the timber is soaking wet, heavy and dense when it is
used and must dry out before it can be painted.
Id. He believed

740

that the timber was too wet to be painted at the time of the
inspection . He further stated t hat the timber at the portal was
almost dry enough to be painted.
I credit the testimony of
Mr. Swanson.
Inspector Kerber testified that the purpose of the standard
is to prevent carbon monoxide from entering the mine.
(Tr. 47).
He stated that an operator is required to paint or otherwise protect the timber as each set is installed in the mine.
(Tr < 4 748, 59, 72) .
I find, however, that the safety standard does not
expressly contain such a requirement . The l anguage of the safety
standard does not address when fire - retardant material must be
applied if a mine operator is developing a new mine or is rehabilitating an old mine by installing new timber sets.
Under the
standard, an operator i s permitted to cover the timber with
shotcrete or gunite. Those materials are generally made of cement and are sprayed on pneumatically . 1 I t wou l d not be feasible to spray the timber with gunite or shotcrete as it is
placed in the mine because that material must be prepared in
batches .
(Tr. 87) .
I reject the inspector's interpretation of
the standard as requiring each timber set to be protected as it
is installed.
The Commission has held that a safety standard cannot be
" so incomplete, vague, indefinite or uncertain that ( persons) of
common intelligence must necessarily guess as its meaning and
differ as to its application ." Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (December 1982} (citation omitted). The Commission has determined that adequate notice of the requirements
of a broadly worded standard is provided if a reasonably prudent
person familiar with t he mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.
Ideal Cement Co . , 12 FMSHRC
2409, 2416 (November 1990); Lanham Coal Co . , 13 FMSHRC 1341, 1343
(September 1991). Although the subject standard is not broadly
worded, it does not address the issue raised here.
I do not
believe that a reasonably prudent person would have recognized
that it was prohibited by the safety standard from installing
timber sets without applying gunite, shotcrete, fire-retardant
paint, or other material at the time it was installed.
Based on the particular facts · in th i s case, I conclude that
the citation should be vacated.
I find, based on the testimony
of Mr . Swanson, that the timber sets were raw, very wet, and
could not have been painted at the time of the inspection.
Fire
retardant paint does not prevent wood from burning, but rather
retards the burning process.
(Tr. 13, 56) .
In vacating the
See definitions of " gunite, " " guniting," and "shotcrete"
in Bureau of Mines , U.S. Department of the Interior, Dictionary
of Mining , Mi neral and Related Terms, at 518-19, 1004 (1968).

741

citation, I have taken into consideration the fact the AT&E had
only advanced about 50 feet into the mine, air naturally flowed
out of the mine through the entry being timbered, and there was
no evidence of any sources for a fire.
As a consequence, the
lack of fire - retardant paint did not present a danger of carbon
monoxide poisoning .
C.

Citation No . 3932727

This citation alleges that AT&E did not have any means of
testing for gases or fumes before entering into the part of the
mine that was not ventilated with a fan.
The citation states
that miners had gone about 100 feet into the mine to work on an
air door . The cited safety standard, 30 C.F.R. § 57.5002,
states:
"Dust, gas, mist, and fume surveys shall be conducted as
frequently as necessary to determine the adequacy of control
measures. 11
There is no dispute that AT&E did not have any devices to
test the mine atmosphere. AT&E maintains that during previous
MSHA inspections and when consultants had visited the mine, the
mine atmosphere had been tested and that such tests did not
indicate that there any bad air in the mine.
(Tr. 91, 132-34)
It further argues that the miners had never gone more than about
50 feet into the mine except on two days when two miners worked
on the air door that was about 120 feet into the mine .
(Tr. 16,
30, 93). AT&E states that it was going to install a new ventilation system and it was looking into various types of testing
equipment to monitor and control the air quality.
It believes
that it met the standard's " as frequently as necessary •• requirement because all of the previous tests indicated that the air was
good and the natura l air flow from the upper workings kept the
air circulating.
On at least one occasion miners complained about the quality
of the air in the mine and some said that they had become sick
from the air .
(Tr . 14, 29, 50, 60-61) . In addition, AT&E was
rehabilitating an old mine and air circulated through old stopes
before exiting the mine through the portal.
(Tr . 29, 36). AT&E
did not have any means to test the quality of the air .
I find
that, given the circumstances of this case, AT&E was required to
have testing equipment at its disposal to check the air in the
mine, especially because miners were required, on occasion, to
enter the deeper areas of the mine where contaminated or oxygen
deficient air is more likely to accumulate.
(Tr . 14).
I find
that AT&E violated the standard because it did not, and could
not, test the air as frequently as necessary to determine the
adequacy of its air control measures .
Inspector Kerber determined in the citation that the gravity
of the violation was low and that the v i olation was the result of
AT&E's low negligence. The violation was not designated as sig-

742

nificant and substantial ( " S&S " ) . I agree with the inspector's
determinations and reject the Secretary's argument in his brief
that the negligence of AT&E was greater than originally determined by the inspector. After considering the evidence presented
at the hearing, I conclude that MSHA's proposed penalty of $50.00
is appropriate under the criteria set forth in Section llO(i) of
the Act, 30 u.s.c. § 820(i).

o.

Citation No. 3932730

This c i tat i on al l eges that AT&E did not have a c heck-in and
check-out system at the mine to provide an accurate record of
persons who are underground.
In addition, the citation alleges
that persons u ndergr ound did not carry a positive means of being
identi f ied. The cited safety standard, 30 C.F . R. § 57 . 11058,
requires each operator of an underground mine to "establish a
check-in and check-out system which shall provide an accurate
record of persons in the mine. " The standard also states that
every person underground "shall carry a positive means of being
identified. "
AT&E contends that it had a check-in and check-out system.
It argues that because only three miners worked underground and
they could generally be seen from the mine entrance, it could
rely on verbal communication and a visual check to determine who
was underground . Miners were not permitted to go underg round
without notifying Bill Gergen, AT&E's mine engineer.
(Tr . 30-31,
38, 94) .
In addition, AT&E contends that each miner had a positive means of identification in the form of a training certificate which each carried .
I find that AT&E's check- in and check-out system did not
meet the requirements of the standard. Although under normal
circumstances AT&E would know who was underground, confusion
could arise during an emergency and rescue efforts could be
hindered.
(Tr. 52). Under AT&E's system, an accurate " record"
of persons in the mine was not kept . In addition, I find that
training certificates do not constitute a positive means of
identification because they can be easily destroyed.
Although
the standard does not expressly require that metal tags be used,
I find that metal tags are standarp in the industry and, consequently, a reasonably prudent person familiar with the mining
industry would know that metal identification tags are required .
(Tr. 72-73). Mr. Gergen testified that he carried a brass tag
and Mr . Swanson stated that he has worked at many mines and not
one used paper certificates as a positive means of indentif ica tion .
(Tr. 17, 107 - 08).
Inspector Kerber determined that the gravity of the violation was low and that the violation was the result of AT&E's high
negligence. The violation was not designated as significant and

743

substantial {"S&S").
I agree with the inspector's determinations. After considering the evidence presented at the hearing,
I conclude that MSHA's proposed penalty of $50.00 is appropriate
under the criteria set forth in Section llO(i) of the Act.
E.

citation No. 3932731

This citation alleges that AT&E did not have a neutral
return spring on the control handle for the 12-B mucker . The
citation states that the lack of a return spring created a hazard
to employees using the mucker . The cited safety standard, 30
C . F.R. § 57.14100{b), provides:
"Defects on any equipment,
machinery, and tools that affect safety shall be corrected in a
timely manner to prevent the creation of a hazard to persons."
There is no dispute that the return spring was missing from
AT&E's track-mounted mucker. This mucker was used to pick up
waste rock from the mine and dump the material into an ore car
for removal. The function of the return spring was to return the
gear shift to neutral if the mucker operator took his hand off
the control handle.
Without the return spring, it was possible
for the mucker to remain running and in motion if the operator's
hand was removed from the control handle.
AT&E admits that the return spring was missing, but contends
that it ordered the replacement part immediately after it discovered that the spring was missing. Thus, it argues that it was
doing all that it could to correct the defect in a timely manner.
AT&E also contends that the defect did not create a hazard to
persons because the mucker was used only for about an hour a day
and it had other safety devices that would stop the mucker in the
event the operator was knocked off .
I find that the evidence demonstrates that AT&E violated the
safety standard .
First, I find that the missing return spring
did affect the safety of the mucker. Unanticipated events could
cause the mucker operator to let go of the control handle.
For
example, he could slip or be knocked off the mucker, faint, suffer a heart attack, or become distracted. Th~ return spring is
designed to reduce the movement of the mucker · in the event the
operator is no longer in control of it . Second, although AT&E
immediately ordered a new part, it did not take steps necessary
to assure that the defect was corrected in a timely manner. The
condition had existed for at least three days prior to the inspection.
{Tr. 33). The spring did not arrive for about three
months after it was ordered.
(Tr. 20). AT&E could have shut
down the mucker or fashioned a temporary make-shift spring for
use until the replacement part arrived.
Indeed, AT&E's mine
engineer, Bill Gergen, made a make-shift spring to abate the
citation.
(Tr. 20, 33). Thus, I conclude that the safety defect
was not corrected in a timely manner, as required by the safety
standard .

744

Inspector Kerber determined that it was reasonably likely
that a serious injury would occur as a result of the. violation
and designated the violation as S&S. He also the determined that
the violation was caused by AT&E's moderate negligence.
I conclude that the Secretary has not established that the violation
was S&S. 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.
A violation is s&s if, based on the 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. The Commission has established a four-part S&S test, as follows:
In order to establish that a violation
of a .mandatory safety standard is significant
and substantial ... , the Secretary of Labor
must prove:
(1) the underlying violation of
a mandatory safety standard; (2) a discrete
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.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). An evaluation
of the reasonable likelihood of an injury should be made assuming
continued normal mining operations. U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (August 1985).
The Secretary established the first two steps of the S&S
test.
I find, however, that the evidence does not establish a
reasonable likelihood that the hazard contributed to by the
violation will result in an injury. The mucker was used about
one hour every day to remove waste materials as new timber sets
were installed in the drift.
(Tr. 32). During that hour, i t was
being moved approximately half of that time.
(Tr. 32, 96). Only
three people worked underground and the same two miners operated
the mucker whenever it was used. The mucker operator stands to
one side as he operates the controls and another miner stands on
the same side and slightly behind it to protect the air line. 2
(Tr. 32). The drift was about six . feet wide and the mucker was
about two and one half feet wide. The operator's side has more
clearance that the other side.
{Tr. 18-19, 95-96).
When functioning, the return spring on the mucker will return the gear to
neutral but i t will not engage a brake, so the mucker will keep
moving at least a few feet if it is on a grade.
(Tr. 41-43).
Given these facts, and the fact that the mucker operator's hand
2

The mucker is powered by compressed air.

745

would have to be unexpectedly removed from the contro l handle
before a hazard is created, I find that it is unlikely that the
hazard contributed to by the violation would result in an injury,
assuming continued normal mining operations.
In addition, I find
that, even if one assumes an event occurs that causes the opera tor to take his hand off the control handle, it was not likely
that the mucker would injure anyone . While I recognize that the
return spring is an important piece of safety equipment, I believe that, given the particular facts in this case, the likelihood of an injury was remote . 3
I find that the violation was caused by AT&E's moderate
negligence.
After considering the evidence presented at the
hearing, I conclude that a penalty of $50.00 is appropriate
under the criteria set forth in Section llO(i) of the Act.
F.

Citation No. 3932732

The citation alleges that there was not a whip check or
safety chain on the one-inch air hose on the oiler . The safety
standard, 30 c . F.R. § 57.13021, provides, in part, that " safety
chains or other suitable locking devices shall be used on connections to machines of high pressure hose lines . .. where a
connection failure would create a hazard."
AT&E argues that the particular air hose in question was not
in use at the time of the inspection and that the Secretary did
not show that it had ever been used. AT&E also states that whip
checks were available at the mine and that one would have been
attached to the air hose when it was used.
A whip check is designed to protect miners from injury in
the event an air hose connection fails.
An air hose can whip
around and strike people if it becomes disconnected from the
equipment to which it is attached . There is no dispute that the
type of air hose cited was required to be equipped with a whip
check.
AT&E's engineer testified that while he was not certain
that the cited air hose had been used without a whip check, he
stated that it could have been used.
(Tr. 22, 34).
There was no
evidence that the air hose was not available for use or that it
had been disconnected from the air compressor .
I find that the Secretary has established a violation of the
safety standard.
Inspector Kerber determined that the gravity of
the violation was low and that the violation was the result of
AT&E's moderat~ negligence. The violation was not designated as
S&S.
I agree with the inspector's determinations. After consid3

The fourth element of the Mathies S&S test has been met
because it is reasonably likely that if an injury occurred, it
would be of a serious nature.

746

ering the evidence presented at the hearing, I conclude that
MSHA's proposed penalty of $50.00 is appropriate under the criteria set forth in Section llO(i) of the Act.
II.

civil Penalty Assessments

Based on the criteria in section llO(i) of the Mine Act, 30
§ 820(i), I assess the following civil penalties, as discussed above:

u.s.c.

Citation Nos.

30 C.F.R. §

Assessed
Penalty

3932726
3932727
3932730
3932731
3932732

57.4560
57.5002
57.11058
57 .14 100(b)
57 .1 3021

VACATED
$50.00
50 .00
50.00
50.00

Total Penalty

$200.00

III.

ORDER

Accordingly, Citation No. 3932726 is VACATED, the remaining
citations are AFFIRMED with Citation No. 3932731 MODIFIED to
delete the significant and substantial designation, and AT&E
Enterprises, Inc., is ORDERED TO PAY the Secretary of Labor the
sum of $200.00 within 30 days of the date of this decision.

Judge

Distribution:
Alan M. Raznick, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Su i te 1110, San Francisco, CA
94105-2999
Gregory J. Roberts, Esq., CBRISTENSEN & BARRUS, 7112 North Fresno
Street, Fresno, CA 93720

RWM

747

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

MAY 9 1995
TERRY McGILL,

DISCRIMINATION PROCEEDING
Complainant
Docket No. SE 95-132-D
BARB CD 94-32

v.

U.S. STEEL MINING COMPANY,
Respondent

Oak Grove Mine
Mine ID 01-00851

UNITED MINE WORKERS OF
AMERICA (UMWA)
Intervenor
I

ORDER OF DISMISSAL
Before:

Judge Hodgdon

This case is before me on a complaint of discrimination
under Section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c). The Complainant has req uested leave to
withdraw his complaint because the parties have resolved their
differences . Commission Rule 11, 29 C.F.R. § 2700.11, provides
that "[a] party may withdraw a pleading at any stage of a
proceeding with the approva l of the Judge or the Commission."
Accordingly, the mot i on for leave to withdraw is GRANTED and
it is ORDERED that thi s case is DISMISSED .

d.~~
T . Todd H~vz='1
Administrative Law Jud ge

748

Distribution:
Mr. Terry McGill, Route 13, Box 311, Jasper, AL

35501

Robert M. Weaver, Esq., United Mine Worker 1 s of America,
Longshore, Nakamura & Quinn, Suite 300, 2100 First Avenue North,
Birmingham, AL 35203
Billy Tennant, Esq., U.S. Steel, 600 Grant Street, USX Tower,
Pittsburgh, PA 15219
/lbk

749

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

MAY 1 0 199J
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 94-198-M
A.C. No. 41-03766-05503

v.
Tarrant Aggregate #2
F

W CONTRACTORS I NCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Weisberger

This case is before me upon a petition for assessment
of civil penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Act) . Petitioner has
filed a motion to approve sett lement agreemen t and to dismiss
the case. A reduction in penalty from $2700 to $2025 is proposed.
I have considered the representations and document ation submi tted
in this case, and I conclude that the proffered sett.lement is
appropriate under the criteria set forth in Section llO(i) of the
Act.
WHEREFORE , the mot ion for approval of settlement is
GRANTED , and it is ORDERED that Respondent pay a penalty of
$2025 within 30 days of this order.

& isb-

Administrative Law Judge

Distribut ion :
Jack F . Ostrander, Esq., Off ice ·of the Solic itor , U.S. Department
of Labor, 525 Gri ffin St., Suit e 501, Dal las, TX 75202
Paul G. Johnston, Safety Director, F W Contractors I n corporated ,
P.O. Box 18521 9 , Fort Worth , TX 76181
/ml
750

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

MAY 1 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
LARRY P. SMITH,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 95-111-D
MSHA Case No. PITT CD 94-05
Clutch Run Mine

v.

DOVERSPIKE BROTHERS COAL CO.,
Respondent
DECISION

Appearances:

James Brooks Crawford, Esq., Office of
the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Complainant; .
R. Henry Moore, Esq., Buchanan Ingersoll,
P.C., Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Koutras
Statement of the Proceeding

This proceeding concerns a discrimination complaint filed
by the Secretary of Labor on behalf of Larry P. Smith,. against
the respondent pursuant to section 105 (c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c). The complaint alleged that Mr. Smith was laid off, and, in effect
discharged, on or about March 13, 1994, because it was thought
by the respondent, through its agents, Mine Foreman Charles
Ishman and Superintendent Randall Rearick that Mr. Smith had
initially alerted the state and federal mine safety enforcement
authorities of a mine fan stoppage occurrence on February 24,
1994, at the Clutch Run Mine in which the underground miners
were not withdrawn from the mine when the fan was inoperative

751

for a time period greater than 15 minutes. Mr. Smith further
alleged that the miners were instructed by Mr. Ishman to tell
the federal and state inspectors that the fan was inoperative
for only five minutes when, according to Mr. Smith, the fan had
been off for at least 45 minutes.
The respondent denied that it had taken any adverse discriminatory action against Mr. Smith or that they discharged him
for any protected activity pursuant to the Act. The respondent
asserted that Mr. Smith and another employee were laid off for
economic reasons. The respondent further stated that after
Mr. Smith was laid off, management discoyered that he had engaged
in certain conduct as superintendent of one of its mines that
would have resulted in his termination if it had been discovered
while he was employed with the respondent.
A hearing was convened in Indiana, Pennsylvania, on
April 13-14, 19,~5, and the parties appeared and participated
fully therein. ' However, as discussed hereafter, the parties
agreed to settle their dispute, and they filed a posthearing
settlement motion for my consideration and approval.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 301 .et.~·

2.

Sections lOS{c) (1), (2) and (3) of the Federal
Mine Safety and Health Act of 1977, 30 U. S.C.
§ 815 (c) (1 ) , and {2 ) and ( 3 ) .

3.

Commission Rules, 29 C.F.R.

§

2700.1, .et. .aeg;.

Stipulations
The parties stipulated in re'levant part that the respondent
is a small to medium size coal mining company and that it is a
mine operator subject to the jurisdiction of the Mine Act . . They
further stipulated that the Commission's presiding judge has
jurisdiction to hear and decide this matter.

752

Discussion
In support of the complaint, the Secr~tary, on the first
day of the hearing, presented the testimony of Mr. Smith,
seven current and former employees of the respondent, the MSHA
special investigator who investigated Mr. Smith, and a supervisory special investigator. The respondent presented the
testimony of two witnesses. On the second day of the hearing ,
and after the record was opened for the continuation of the
respondent's case, counsel for the parties informed me t hat
the parties reached a tentative agreement to settle their
dispute and they requested a continuance of the matter in
order to pursue it further with their clients and to fina l ize
the agreement. The request was granted, and the hearing was
continued .
The parties have now filed their proposed settlement
agreement, the terms of which include an agreement by the
respondent to pay Mr. Smith a monetary settlement within
five days of the Order approving the settlement, with the
understanding that such payment shall be in full and complete
settlement of the complaint. Additional terms of the settlement are set forth in the settlement agreement executed and
signed by the parties, including Mr. Smith. I take note of
a letter dated May 2, 1995, from the respondent's counsel to
the Secretary's counsel forwarding a cashier's check for
Mr. Smith pursuant to the settlement agreement.
ConclusiQ.D
After careful review and consideration of the settlement
terms and conditions, I find that they reflect a reasonable
resolution of the complaint and that the proposed settlement is
in the public interest. Since it is apparent that all parties
are in accord with the agreement for the settlement disposition
of the complaint, I see no reason. why it should not be approved.

753

QBDER

The proposed settlement IS APPROVED. The parties ARE
ORDERED to forthwith comply with all the terms of the agreement.
Upon compliance, this matter is dismissed with prejudice.

~~1l~

Administrative Law Judge

Distribution:
James Brooks Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlington, VA 42203 {Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., USX Tower,
57th Floor, 600 Grant Street, Pittsburgh, PA 15219
(Certified Mail )

/lb

754

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204- 3582
303-844-3577/FAX 303 - 844-5268

MAY 1 0 1995
DISCRIMINATION PROCEEDING

ROBBIE A. SMITH ,
Complainant

Docket No. WEST 95-10 - D

v.
CENTRALIA MINING CO . , INC.,
Respondent

Centralia Coal Mine
Mine I . D. 45-00416

DECISI ON APPROVING SETTLEMENT
Before :

Judge Manning

This proceeding was brought by the Secretary of Labor on
b e half of Robbie A. Smith under section 105(c) (2) of Federal Mine
Safety and Health Act of 1977, 30 u. s . c. § 815(c) (2).
On April
5, 1995, the Secretary filed an unopposed motion to discontinue
his representation of Mr. Smith.
By order dated April 6, 1995,
the motion was granted and Mr. Smith has represented himself in
this proceeding since that date .
On May 8 1 1995, Mr . Smith and
Centralia Mining company filed a joint Settlement Agreement and
General Release .
The settlement agreement resolves all existing
and poten tial disputes between the parties in this case arising
out of the termination of Mr. Smith's employment by Centralia .
I have reviewed the terms of the proposed settlemen t and find the
settlement to be reasonable and in the public interest.
Accordingly, the terms of the settlement set forth in the
Settlement Agr eement and General Release are APPROVED and this
discrimination proceeding is DISMISSED .

-,

...

--

.. -~
/,

.. ./ .,/

;-

/u

~

,. Richard W. Manning
Administrative Law Judge
Distribution :
Timothy M. Biddle, Esq . , CROWELL & MORING, 1001 Pennsylvania
Ave ., NW Washington, DC 20004-2595
Mr . Robbie A . Smith, 943 E . Greenbrae Dr . , Sparks , NV 89434
RWM

755

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD # 280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

MAY 1 5 1995
WESTERN FUELS-UTAH, INC . ,
Contestant

CONTEST PROCEEDING
Docket No. WEST 94-391 - R
citation 4059968; 4/21/94

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

Deserado Mine
Mine I.D . 05-03505
DECISION

Appearances:

Karl F. Anuta, Esq., Boulder, Colorado,
for Contestant;
Margaret A. Miller, Esq., Office of the Solicitor,
U:S. Department of Labor, Denver, Colorado,
for Respondent.

Before:

Judge Manning

This case is before me on a notice of contest filed by
Western Fuels-Utah, Inc. ( "Western Fuels" ) against the Secretary
of Labor and his Mine Safety and Health Administration ( " MSHA")-,
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S . C. § 815 . Western Fuels contests the issuance of
Citation No. 4059968 to it at its Deserado Mine on April 21,
1994. For the reasons set forth below, I affirm the citation .
A hearing was held in this case on January 5, 1995, in Grand
Junction, Colorado. The parties presented testimony and documentary evidence, and filed post-hearing briefs .
I.

FINDINGS OF FACT

The Deserado Mine is an underground coal mine in Rio Blanco
County, Colorado. It mines coal using the longwall method and
transports coal out of the longwall section on a conveyor belt.
On April 21, 1994, MSHA Inspector Phillip Gibson issued a section
104(a) citation to Western Fuels because "additional insulation
was not provided for the communication circuit in the belt conveyor entry of . the 9th East longwall section at the point where
the circuit passed over the 995 V AC power conductor. "
(Ex .
M-1). He alleged a violation of 30 C.F.R . § 75 . 516-2(c).
In the
citation, Inspector Gibson stated that an injury was unlikely,
that if an injury did occur it would not result in any lost work
days, and that the violation was not of a signif i cant and substantial nature. He determined that the mine operator's negli756

gen ce was moder ate. The citation was abated by moving the
communication cable and a near by telep hone.
Section 75.516- 2 provides, in pertinent part :
communication wires and cables ; i nstallatio n;
i n s ulation; s uppor t .

(a) All communication wires shall be
supported on insulated hangers or insulated
J-hooks .
(b) All communication cables shall be
insulated .. . , and shall either be supported
on insulated or uninsulated hangers or Jhooks, . .. or buried, or otherwise protected
against mechanical damage . ...
(c) All communication wires and cables
installed in track entries shall, except when
a communication cable is buried in accordance
with parag raph (b) of this section, be in sta l led on the side of the entry opposite to
trolley wires and trolley feeder wires. Additional insulation shall be provided for
commun i cation circuits at po i nts where they
pass over or under any power conductor .
(d) For purposes of this section,
communication cable means two or more insu lated conductors covered by an additional
abrasion-resistant covering.
Western Fuels does not deny that the phone cable passed over the
power cabl e and that additional insulation was not provided at
that location .
It contends, however, that this condition did not
violate the safety standard .
Tracks and trolley wires are not used in the Deserado Mine .
Between 70 and 80 perm i ssible telephones are present undergr ound,
which are used as the primary means of communication in the mine .
{Tr. 112-13; Ex . W- 2) . These phones are connected through and
p owered by 24-volt DC audio communication cables, which contain
four shielded conductors and are p r otected by an outer jacket.
(Tr . 109-10 ; Ex. W-7). The phone cables are i n stalled on J hooks
attached to the roof in the belt entry of the longwall section .
Wes tern Fuels does not dispute that its phone cables are a " communicat i on circuit, " as that term is used in the standard.
Elec tricity for the longwall section is supplied throu gh power
cables, which carry about 995 volts AC .
(Tr. 106- 09; Ex. W-6) . 1
Exhibit W-6 is portable mining cable. The cable installed to supply power to the l ongwall is similar, but is a
larger 350 MCM cable .
(Tr . 107);

757

The power cables contain three power conductors, two ground
conductors and a conductor for the ground fault monitor.
(Tr.
108) . The cable has a dielectric rating of 2,000 volts and is
protected by an outer jacket.
(Tr. 106-08; Ex . W-6). The power
cables are installed in the belt entry on a monorail. The monorail consists of a long I - shaped bar suspended from the mine
roof.
(Ex . W-4) . The power cables are suspended from cable
carriers that are located along this bar.
(Ex. W-5). The cable
carriers are on wheels so that they may be moved along the monorail, as necessary. Two power cables and several compressed air
lines are supported by the cable carriers.
Inspector Gibson testified that the communication cable
touched the power cable where they crossed.
(Tr. 18). Robert
Daniels, a safety inspector and trainer with Western Fuels,
testified that the cables were about three inches apart .
(Tr.
100) . Neither party, however, contends that this conflict is
significant in the resolution of this case.
Both cables were
well insulated'and were protected against mechanical damage by
outer jackets. Neither cable was damaged or worn at the cited
location . The fuses and circuit breakers protecting the communication and power circuits were adequate.
Mobile equipment
was not used in the entry where the citation was written.
Finally, MSHA would have permitted Western Fuels to abate the
citation by covering either cable with a single wrap of electrical tape at the crossover point.
It is not uncommon for cables to become cracked or broken in
underground coal mines.
(Tr. 126-27). MSHA believes that additional insulation is necessary where communication circuits pass
over or under power cables because communication circuits lead
directly to telephones used by miners on a regular basis. These
telephones are an important safety tool for miners.
If the communication circuit becomes energized by a power cable, anyone
using the phone could be injured, a methane explosion could
occur, and the phone system could be knocked out. 2 The Secretary's witnesses acknowledged that, given the condition of the
cables at the cited location, the chance of the communication
circuit becoming energized by the power cable was remote.
(Tr.
31-32, 34, 62 - 64; Ex. W-1 p . 7). They stated that the requirement
for additional · insulation is to provide an extra measure of
safety for an abnormal situation, in case "something out of the
ordinary were to occur."
(Tr . 62-64).

2

Western Fuels has a backup wireless communications system
for use in the event the communication circuit is not functioning.
758

II.
A.

SUMMARY OF THE PARTI ES' ARGUMENTS

Western Fuels

Western Fuels makes several arguments in s u pport of its
contention that it did not violate the safety standard.
First,
it argues that the provisions of section 75 . 516.2(c) are only
applicable to track entries. Western Fuels contends that the
two sentences in 75.516-2(c) must be read together and that t h e
phrase " communication wires and cables installed in track entries" in the first sentence of subsection 2(c) is also applicable to the second sentence . It reasons that the language of
the first sentence of the subsection limits the application of
the entire subsection to track entries, because such entries
contain bare trolley wires. Western Fuels further contends that
the language of the subsection is clear, not ambiguous, and is
not subject to a contrary interpretation by MSHA .
Since the
communication cable observed by the inspector was not in a track
entry, the safety standard was i n applicable and, consequently,
there was no violation.
Second, Western Fuels argues that Commission precedent
requires that the MSHA inspector make an objective evaluation of
the conditions observed to determine whether a hazard was present .
In this case, it argues that the inspector failed to take
into considerat i on the condition of the power and commun ication
cables, the degree of insulation and phys i cal protection provided
by the cables themselves, the method the mine used to support the
cables, the fact that no vehicles travel through t h e area, and
other environmental factors. Western Fuels contends that the
citation should be vacated because the inspector failed to make
the requisite objective evaluatio n of these conditions .
Finally, Western Fuels contends that MSHA's interpretation
of the standard is nonsensical and defeats its purpose.
It
maintains that the purpose of the safety standard is to protect
miners from the potential hazards of electrical shock or fire in
the event communication wires or cab les contact bare trolley
wires.
It makes sense to require additiona l insulati on 'wh ere
communication cab l es cross bare trolley wires because a trol l ey
wire is not insulated . Applying the standard to communicati on
cables that are not in track entries is illogical because power
cabl es and communication cables are adequately protected by the
insulation and outer jackets provided by the manufacturer .
B.

Secretary

The Secretary contends that the second senten ce of section
75 . 516 - 2(c) was promulgated to deal with communication wir es ,
wherever they may be located . He maintains that the second
sentence is concerned with communication circuits crossing " any
power conductor, " not just trolley wires. The Secretary points

759

to the fact that the safety standard deals with the hazards of
communication circuits, not with the hazards of trolley wires or
track entries. Thus, the standard is titled "Communication wires
and cables; installation; insulation; support." The Secretary
maintains that the second sentence of subsection 2(c) is applicable to the conditions cited by the inspector.
The Secretary also contends that the word "additional" in
the standard means what it says: additional insulation must be
provided by the mine operator at the applicable locations. He
argues that the degree of protection provided by the cable
manufacturer a nd the environmental conditions at the mine are
irrelevant in determining whether there is a violation of the
standard. Thus, the inspector is not required to make an objective evaluation of the these conditions.
Finally, the Secretary contends that, to the extent the
standard is deemed to be ambiguous or silent as to the issues
raised by Western Fuels, the Commission should give the Secretary's interpretation deference.
The Secretary maintains that
his interpretation is entitled to deference because it is clearly
consistent with the purposes of the Mine Act.

III.

DISCUSSION WITH FURTHER FINDINGS
AND

CONCLUSIONS OF LAW
I find that the language of the safety standard is clear on
its face and that the second sentence is applicable to the
condition cited by Inspector Gibson. Accordingly, I have not
reached the Secretary's deference argument. The safety standard,
30 C.F.R . § 75.516-2, is directed to hazards associated with
communication wires and cables. One sentence in the standard
s pecifically directs that communication wires and cables be
instal led on the side of the entry opposite trolley wires. No
other sentence in the standard speaks of track entries or trolley
wires. The sentence in dispute specifically states that its
requirements are applicable where communication circuits "pass
over or under any power conductor." Thus, by its own terms, the
requirements of that sentence are not limited to areas where
communication circuits cross over bare trolley wires.
Although the placement of the disputed sentence immediately
after the sentence concerning trolley wires is unfortunate, such
placement does not alter the meaning of specific language of the
sentence.
I believe that such placement should not cause undue
confusion because of the clarity of the language.
It is not
logical to assume that, because the first sentence in subsection
2(c) addresses the hazards of communication wires in track
entries, the second sentence is also applicable only to track
entries. The title of the standard is broadly worded and the
language in the sentence in question specifically addresses all

760

power cables , not just trolley wires. Because the sentence is
applicable to all power cables, it i s not logical to limit its
scope to track entries . If a communication circuit passing over
an insulated power cable poses a hazard in a track entry, then it
would also pose a hazard in other entries . Thus, I find that the
second sentence of section 75.516-2(c) is not limited to communication circuits in track entries .
Western Fuels maintains that Inspector Gibson was required
to consider the conditions present in the mine and determine
objectively whether additional insulation was required where the
communication cable passed over the power cable.
In making this
argument, Western Fuels relies on the Commission's decisions in
Homestake Mining Co., 4 FMSHRC 146 (February 1982) and Cl imax
Molybdenum Co., 4 FMSHRC 159 (February 1982).
For th e reasons
discussed below, I believe that those cases are distinguishable.
In Homestake and Climax, insulated power cables were in
contact with waterlines, telephone lines, and air lines. The
safety standard at issue provided that "powerlines shall be well
separated or insulated from waterlines, telephone lines, and air
lines." 3 MSHA inspectors issued citations without determining
whether the powerlines were "well separated or insulated" from
the waterlines, telephone lines, and air lines. The inspectors
believed that the standard required operators to provide additional insulation around the power cables, above that supplied by
the manufacturer, at such contact points .
In vacating the citations involved 1 the Commission emphasized that the standard at
issue " does not state that 'additional insulation' must be placed
between 'powerlines' and pipelines; it merely requires separation
or insulation.'' 4 FMSHRC at 149. Thus, the Commission held that
the Secretary was required to show, through objective evidence,
that the insulation provided in the power cable was insufficient
at the specified contact points, given the specific conditions
found in the mine.
The safety standard at issue in this proceeding specifically
states that "additional insulation " must be provided at specified
points. Thus, even if the cables are " well separated or insulated, " additional insulation is required .

.

Western Fuels also cites the decision of Judge George A.
Koutras in Cyprus Emerald Resources Corp . , 11 FMSHRC 2329
(November 1989) . In that case, a citation was issued because a
" light switch power cable was not adequately protected where [it]
passed over [an) energized trolley wire." 11 FMSHRC at 2337.
The safety standard cited, 30 C.F.R. § 75.517, provides that
"power wires and cables, except trolley wires, trolley feeder
3

This safety standard is currently at 30 C.F . R.
57.12082.

761

§

wires, and bare signal wires, shall be insulated adequately and
fully protected." Judge Koutras used the Homestake approach and
determined that, in order to establish that a power cable is not
fully protected, the inspector "must, on a case-by-case basis,
make an objective evaluation of all the circumstances presented
[to] support a reasonable conclusion that the cable is located and utilized in such a manner as to expose it to physical
damage." 11 FMSHRC at 2345 . While I am in agreement with the
judge~s approach in that case, it is not applicable here.
Section 75.516-2(c) does not provide that cables be adequately protected and insulated, it requires t hat uadditional insulation "
be provided at specified locations.
Finally, Western Fuels points to the decision of Judge John
Inc., 16 FMSHRC 295 (February
1994).
In that case, a communication cable crossed over a power
cable and an MSHA inspector i ssued a citation for a vio la tion of
section 75.516-2(c). Judge Morris affirmed the citation. Western Fuels argues that Judge Morris held that an objective evaluation of the particular conditions observed by the MSHA inspec tor was required .
Although Judge Morris cited Homestake and
Cyprus Emerald in his decision, it is not clear to me that he
applied them in his analysis.
16 FMSHRC at 305-06 .
In any
event, he did not hold that the Secretary must show that the
existing insulation is inadequate in order to sustain a violation
of subsection 2(c) .
J. Morris in Western Fuels-Utah,

I conclude that the Secretary was not required to show that
the insulation and outer jacket on the communication and power
cables was insufficient in order to sustain a violation of 30
C.F.R. § 75.516-2(c) in this case. The fact that the cables were
in good condition, were well insulated and protected by outer
jackets, and were unlikely to be struck by mobile equipment does
not invalidate the citation. These facts and other environmental
factors relate to the gravity of the violation, not to the fact
of violation.
In large measure, Western Fuels is arguing that the hazard
is so remote in this case that enforcement of the standard in the
manner advocated by MSHA does not advance the safety of its
miners.
It maintains that an objeotive evaluation of the surrounding conditions is necessary to determine if there is a sufficient hazard to create a violation.
There is no dispute that
there was only a remote possibility that the communication circuit could become energized by the power cable as a result of
this violation. The safety resources of MSHA and mine operators
are finite .
To the extent that MSHA is enforcing this standard
in the manner described above, and mine operators are employing
its resources to comply with the standard, those resources cannot
be applied to other more serious hazards. Thus, Western Fuels is
questioning the opportunity cost of enforcing this safety standard without regard to the hazard created. This issue, however,

762

is beyond my authority and is more properly addressed to the
Assistant secretary for Mine Safety and Health.

IV.

ORDER

Accordingly, Citation No. 4059968 is AFFIRMED and this
proceeding is DISMISSED.

~c.~
~~rd

W. Manning
Administrative Law Judge

Distribution:

Karl F. Anuta, Esq., 1720 14th street, P.O. Box 1001, Boulder,
(Certified Mail)

co 80306

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Sui te 1600, Denver, co 80202-5716
(Certified Mail)
RWM

763

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

MAY 1 7 1995
SECRETARY OF LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1244
A.C. No. 15-17077-03531

I

v.

RB #5 Mine

R B COAL COMPANY, INCORPORATED,
Respondent
DECISION

Appearances:

Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Richard D. Cohelia, Safety Director, R B Coal
Company, Inc . , Pathfork, Kentucky, for the
Respondent.

Before:

Judge Feldman

This proceeding concerns a petition for assessment of civil
penalty filed by the Secretary of Labor against the respondent
corporation pursuant to section llO(a) of the Federal _Mine Safety
and Health Act of 1977 (the Act), 30 U.S.C. § 820(a). The
petition sought to impose a total civil penalty of $17,000 for
four alleged violations of the mandatory safety standards in
Part 75 of the regulations, 30 C.F.R. Part 75, which were all
purportedly attributable to the respondent's unwarrantable
failure.
This matter was called for hearing on March 29, 1995, in
London, Kentucky, at which time the respondent stipulated that it
is a mine operator subject to the jurisdiction of the Act. After
the Secretary had presented his direct case with respect to the
first 104(d) (1) citation in issue, the parties elected to confer

764

for the purpose of settlement. The parties reached a
comprehensive settlement agreement that was presented on the
record for my approval by counsel for the Secretary.
In support of the proposed settlement, the parties agree
that the evidence reflects that the respondent's degree of
negligence does not rise to the requisite level of aggravated or
unjustifiable conduct necessary to support the inspector's
unwarrantable failure findings.
Consequently, the parties
settlement motion as it pertains to each of the cited violations
is as follows:
1 . 104(d) (1) Citation No. 4248202 is modified to a
significant and substantial 104(a) citation
attributable to the respondent's moderate rather than
high degree of negligence. As a consequence, the
special assessment is removed and the parties agree to
a reduction in the proposed civil penalty from $5,000
to $450.
2.
104(d) (1) Order No. 4248203 is modified to a
significant and substantial 104(a) citation
attributable to the respondent's moderate degree of
negligence thus removing the Secretary's proposed
special assessment of a $5,000 civil penalty. The
respondent has agreed to pay a reduced civil penalty of
$450 in satisfaction of this modified citation.
3. 104(d) (1) Order No, 4248204 is modified to a
significant and substantial 104(a) citation as a result
of a reduction in the respondent's degree of negligence
from high to moderate . The proposed special assessment
of $2,000 is reduced to a civil penalty of $300.
4.
104(d) (1) Order No. 4248205 is modified to a
nonsignificant and substantial 104(a) citation
attributable to the respondent's moderate degree of
negligence. As a result of the reduction in the degree
of negligence and gravity associated with the cited
violation, the parties agree that the $5,000 special
proposed assessment should be reduced to a $50 civil
penalty.

765

ORPER

This decision formalizes the approval of the parties 1
settlement motion that was granted on the record after
consideration of the Secretary 1 s presentation in support of the
agreement and the applicable civil penalty criteria contained in
section llO(i) of the Act, 30 U.S.C. § 820 ( i ) . According l y,
IT IS ORDERED that the respondent pay a total civil penalty of
$1,250 in satisfaction of the four citations in issue.
Payment
is to be made to the Mine Safety and Health Administration within
30 days of the date of this decision. Upon timely receipt o f
payment, Docket No. KENT 94-1244 IS DISMISSED .

Jerold Feldman
Administrative Law Judge

Distribution :

Joseph B. Luckett, Esq., Office of the Solicitor, U. S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 372 1 5 (Certified Mail )
Richard .D. Cohelia, Safety Director, RB Coal Company, Inc . ,
HC 61, Box 610, Pathfork, KY 40863 (Certified Mail)
/rb

766

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF A DMINISTRA TIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5 203 LEESBURG PIKE
FALLS CHURCH, V IRGINIA 2204 1

MAY 1 8 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 94-212 - M
A. C. No. 23-01557-05512

I

Pierce Sand Company

PIERCE SAND COMPANY,
Respondent
P ECI SION APPROVING SETTLEMENT
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U. ·s . Department of Labor, Denver, Colorado, for
the Secretary;
Bob Pierce, Stanberry, Missouri, ~ ~.

Before :

Judge Maurer

This case is before me upon a petition for assessment of
c i vil penalty under section lOS(d) of the Federal Mine Safety and
Health Act of 1977 (the Act) . An evidentiary hearing in this
matter was held on March 2, 1995, in St. Joseph, Missouri. At the
conclusion of that hearing, the parties filed a motion to approve
a settlement agreement and to dismiss this case . A reduction in
penalty from $862 to $556 is proposed. The citations, initial
asses s ments, and t h e proposed settlement amounts are as fo llows:

CITATION NO.

INITIAL
ASSESSMENT

4321896
4 321897
432 1 898
4 321899
4 321900
4 322041
4322042
4322043

$

TOTAL

$

204
50

PRQ;eQS~D

SETTLEMENT
$

so
204
50
50
50

102
50
50
1 02

so
50
50

_2.Q..4.

.....lQ2.

8 62

$
767

556

I have consid ered the repre s entations and documentation submi tted
in this case, as well as the testimony contained in the record of
proceedings a nd I conclude that t h e proffered sett l emen t i s
appropriate un der the criteria set forth in sect i o n llO (i) of the
Act.
WHEREFORE , the motion for approval of settlement i s GRANTED ,
and it is ORDERED that respondent pay a penalty of $556 within
30 days of this decision, and upon receipt of that payment by
MSHA, these proceedings are DISMISSED .

Distribution:
Margaret A. Miller, Esq . , Office o f the Solicitor,
U. S . Departmen t of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)
Bob Pierce, Owner, Pierce Sand Company, 111 East Main, Stanberry,
MO 64489 (Ce r tified Mail)
dcp

768

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

MAY 1 8 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 94-217-M
A. C. No. 23-02071-05505

I

Amazonia Quarry
IDEKER

I

INC.

I

Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, for
the Secretary;
Ken Ideker, St. Joseph, Missouri, ~ ~-

Before:

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under section lOS(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). An evidentiary hearing in this
matter was held on March 2, 1995, in St. Joseph, Missouri. At the
conclusion of that hearing, the parties filed a motion to approve
a settlement agreement and to dismiss this case. A reduction in
penalty from $1000 to $500 is proposed.
I have considered the
representations and documentation submitted in this case, as well
as the testimony contained in the record of proceedings and I
conclude that the proffered settlement is appropriate under the
criteria set forth in section llO(i) of the Act .
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that respondent pay a penalty of $500 within
30 days of the date of this decision, and upon receipt of that
payment by MSHA, these proceedings are DISMISSED.

b~~~~i
769

Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, ·
U. S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)
Mr. Ken Ideker, Ideker, Inc., 4614 South 40th Street,
P. O. Box 7140, St . Joseph, MO 64507 (Certified Mail)
dcp

770

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, SUITE 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 1 9 1995
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 94-391
46-08242-03501 PSY

A.C. No.

v.
C S I #5

MINERAL TRANSPORT, INC .,
Respondent
DECISION APPROVING SETTLEMENT

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner has filed a motion to
approve a settlement agreement and to dismiss the case. A
reduction in penalty from $800 to $400 is proposed. I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
acceptable under the criteria set forth in Section llO(i) of the
Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $400 within
30 days of this order. The hearing scheduled for June 8, 1995,
is accordingly cancelled.

.

Gary Melick

~ ~

A~ministrative

~

771

'\~

·Law
~Judge !· \ (; \

\_)

\:

.

'

Distribution:
Caryl L. Casden, Esq ., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
\

w. Keith Martin, Manager, Mineral Transport, Inc., P . O. Box 313,
Fairmont, WV

26544

/jf

772

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, SUITE 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 23, 1995

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

v.

CIVIL PENALTY PROCEEDING
Docket NO. KENT 94-1194
A.C. No. 15-15592-03594 S
No .

1

Mine

ALPHA MINING COMPANY,
Respondent

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

v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1223
A.C. No. 15-15592-03592 M
No . 1 Mine

DEWEY HUBBARD, Employed by
ALPHA MINING COMPANY,
Respondent

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

CIVIL PENALTY PROCEEDING
Docket No . KENT 94-1224
A.C. No. 15-15592-03593 M
No. 1 Mine

ROBERT HARDIN, Employed by
ALPHA MINING COMPANY,
Respondent
DECISION
Appearances:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia on
behalf of Petitioner;
Bill Hayes, Esq., 2309 Cumberland Avenue,
Middlesboro, Kentucky on behalf of Respondents .

Before :

Judge Melick
773

These consolidated civil penalty proceedings are before me
pursuant to sections 105(d) and llO(g) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act"
charging Alpha Mining Company (Alpha) and two of its employees,
Dewey Hubbard and Robert Hardin, with violating section 317(c) of
the Act and the mandatory standard at 30 C.F.R. § 75.1702
(prohibiting smoking and the carrying of smoking materials
underground). The general issue is whether Alpha and/or the
named individuals committed the violations as charged, and, if
so, what is the appropriate civil penalty for such violations.
Additional specific issues are addressed as noted.

Secretary v. Robert Hardin - Docket No . KENT 94-1224
citation No. 4039258, as amended, charges a willful
violation of section 317(c) of the Act and alleges that "Robert
Hardin, mechanic, was observed with one empty pack of Basic
cigarettes and one Basic cigarette butt in his coat pocket on the
003-0 section approximately 750 feet underground." 1 on May 27,
1994, the citation was amended to charge that "each item of
smoking material is a separate violation and will recive (sic] a
separate civil penalty will be assessed [sic]". The Secretary
has accordingly proposed an assessment of two $250 penalties for
the alleged violations. Section 317(c), incorporated in the
standard at 30 C.F.R. § 75.1702, provides, in relevant part, that
"no person shall smoke (or) carry smoking materials, matches, or
lighters underground . . . . " Section llO(g) of the Act provides
that "[a)ny miner who willfully violates the mandatory safety
standards relating to smoking or the carrying of smoking
materials, matches, or lighters shall be subject to a civil
penalty assessed by the Commission, which penalty shall not be
more than $250 for each occurrence of such violation."
Neither the original citation nor the amendment thereto
charge Hardin with actually smoking underground.
I find that the
Secretary in this case therefore elected to proceed only under
that part of Section 317(c) which proscribes the carrying of
smoking materials. No consideration will therefore be given as

1

While this citation, as well as the citation against Dewey Hubbard (No. 4039257) alleges
a "significant and substantial" violation, it is readily apparent from the language of sections
104(d) and (e) of the Act that such findings are relevant only to violations against mine
operators . Consistent with this view, it is noted that the Secretary has not argued in his brief that
such findings should be made in these citations against the individual miners.

77 4

to whether an empty cigarette pack and cigarette butt may
constitute circumstantial evidence that unlawful smoking had
occurred. 2
According to Inspector Stanley Sampsel of the Mine Safety
and Health Administration (MSHA), on May 19, 1994, he and two
other MSHA inspectors, Joseph Grubb and Ted Phillips, were
assigned to conduct a special inspection for smoking materials at
the Alpha No . 1 mine. Upon arrival at the mine office, Inspector
Grubb secured the telephone to prevent notice of the inspection
to the underground miners and Sampsel and Mine Superintendent
Michael Rourk proceeded underground .
Upon arrival at the underground working section, the
individual miners were directed to a central location and a
search of their pockets, boots, and socks was conducted, along
with a "pat-down" . No smoking materials were found at this time.
Each miner was then separately escorted to his work area to
complete the search. Sampsel escorted maintenance man
Robert Hardin to a mantrip located several crosscuts outby the
face area. According to Sampsel, Hardin identified a tool box
and a jacket lying on the mantrip as belonging to him.
Sampsel
found what he d~scribed as a "Basic" brand cigarette butt in a
pocket of the jacket and a "Basic" brand empty cigarette pack in
the mantrip operator's compartment . Hardin denied that the
cigarette butt belonged to him and maintained that the jacket had
been worn by other miners.
At hearing, Hardin testified that, indeed, Sampsel found his
jacket lying behind the seat of the "buggy" (mantrip) and there
was a "Basic" cigarette butt in his jacket pocket. He
maintained, however, that he had not worn the jacket for two or
three days, that he did not place the butt in its pocket, and
that others regularly used this jacket, which remained hung
outside the mine most of the time. Hardin further maintained
that although he does, in fact, smoke cigarettes, he smokes
"Winston" brand and not the "Basic" brand. Hardin also
acknowledged that Sampsel found a wadded empty pack of "Basic"
brand cigarettes in the mantrip . Hardin did not specifically
deny that he had placed this empty cigarette pack in the rnantrip
but only observed that others also used the mantrip.

2

While the Secretary could no doubt have added these charges by a timely amended
complaint pursuant to Fed R.Civ.P 15 no such amendment has been filed. In this regard compare
the Secretary's amendment to Citation No. 4038467 against Alpha in which the charge "smoked
or carried smoking materials" is specifically set forth and accordingly describes "with particularity
the nature of the violation."

775

As noted, the Secretary charges in the instant citation that
Hardin committed two violations by carrying two smoking
materials, i.e. a cigarette butt and an empty cigarette package.
The first question to be decided is whether the empty package of
"Basic" brand cigarettes found in the mantrip and the alleged
cigarette butt (containing only traces of tobacco product and
which admittedly could not be smoked) found in the coat pocket
were "smoking materials" within the meaning of section 317(c) of
the Act. The term is not defined in the Act or regulations but
the term "smoking material" clearly connotes a material that is
capable of being smoked. The Secretary argues that, as a
container that may be used to hold cigarettes and thereby
facilitate smoking, an empty cigarette package constitutes a
"smoking material". There is no evidence in this record,
however, of any common practice of re-using empty cigarette packs
to store cigarettes, especially where, as in this case, it has
been crushed, wadded, possibly gnawed by vermin and discarded .
Moreover, under the Secretary's theory, anything that could be
used to hold or convey cigarettes, including a dinner bucket or
jacket pocket, would also constitute a "smoking material".
It
is, of course, a basic rule of construction that a statute should
not be interpreted in a manner that would lead to absurd
consequences. Sutherland Stat Const.§ 45.12 (5th Ed.). Under
the circumstances, I do not find that the empty cigarette pack at
issue constituted a "smoking material" within the meaning of the
cited statute and regulation.
I reach the same result with respect to the so-called
cigarette butt found in Hardin's jacket pocket. Examination of
the butt reveals only minute traces of what appears to be tobacco
product remaining. Moreover, Inspector Sampsel acknowledged that
there was insufficient tobacco remaining to enable the substance
to be smoked. Accordingly, I do not find the alleged cigarette
butt here cited -- one that has insufficient tobacco product to
actually smoke -- to constitute a "smoking material" within the
meaning of the cited law and, accordingly, the citation must be
vacated. Again, it should be stated that whether possession of
an empty cigarette pack and cigarette butt may provide
circumstantial evidence that smoking has occurred is not an issue
before me in this case since no such charges are set forth in
Citation No. 4039258 or its amendment.

Secretary v. Dewey Hubbard

(Dock~t

No. KENT 94-1223)

Citation No . 4039257, issued May 19, 1994, charges
Dewey Hubbard also with a violation of Section 317(c) of the Act
and alleges that: "Dewey Hubbard, Section Foreman on the 003-0
section was observed with a full pack of Marlboro cigarettes and
an empty pack of Marlboro cigarettes in his dinner pail
approximately 750 feet underground." This citation was also
modified on May 27, 1995, to add that "[e)ach item of smoking

77 6

material is a separate violation and will recive [sic] a separate
civil penalty will be assessed (sic]." Accordingly, as with the
charges against Hardin, the Secretary has likewise here elected
not to charge Hubbard with smoking but only with carrying smoking
materials.
According to Inspector Sampsel, during the search of
individual miners underground, Hubbard was directed to open his
dinner bucket. One full and one empty pack of "Marlboro" brand
cigarettes were found inside. 4 Hubbard who was then the section
foreman, admits that the empty and full packages of cigarettes
were in his dinner bucket. For the reasons previously stated,
however, I do not find that an empty package of cigarettes is in
itself a "smoking material" as alleged. Accordingly, that part
of the citation charging Hubbard with carrying an empty
"Marlboro" brand cigarette package is vacated.
However, with respect to the charges against Hubbard for
willfully carrying a full package of cigarettes in his "dinner
pail" the citation is affirmed . Hubbard also acknowledges that
he knew he had possession of the full pack of cigarettes when
earlier that shift he opened his dinner bucket to eat. Hubbard
admits that he' .also knew that the smoking plan required him, upon
such discovery, to transport the cigarettes out of the mine by
the next reliable person but maintains that there was no vehicle
available to do that. In this regard, however, Hubbard's
testimony that he was trying to report his possession of
cigarettes to maintenance foreman Michael Roark outside the mine
when the inspectors took the telephone away from Roark is
directly contradicted by Roark himself. For this reason I can
give Hubbard's testimony but little weight.
While Hubbard also maintains that his wife had placed the
full pack of cigarettes in his dinner bucket without his
knowledge, I am not persuaded by this self-serving testimony.
His failure to have called a most critical witness on this issue
-- his wife -- is also noteworthy. She could have explained why
she placed a full pack of cigarettes in the dinner bucket that,
by reasonable inference, Mr. Hubbard regularly takes underground
with him.
The fact that Hubbard also carried in his dinner bucket an
empty pack of the same brand of cigarettes further suggests that
he willfully carried these cigarettes and, as an aggravating
penalty factor, indeed, had smoked cigarettes and intended to
smoke additional cigarettes underground that day. In reaching
this conclusion, I have not disregarded Hubbard's purported
4

It was stipulated at supplemental hearings that this still-sealed package contained
cigarettes.

7 77

explanation for the empty pack, i.e. that he found the empty pack
lying on the mantrip earlier that day, placed it in his pocket
and then placed it in his lunch box. However, under the totality
of the circumstances, this explanation is also not credible.
Under the circumstances and considering the relevant
criteria under section llO(i) of the Act, a willful violation of
section 317(c) is affirmed with a maximum $250 penalty.

Secretary of Labor v. Alpha Mining co. (Docket No. KENT 94-1194)
In this case the Secretary charges Alpha Mining company
(Alpha) in one "Section 104(d) (1)" citation and amendment thereto
with a number of violations of the standard at 30 C.F.R.
§ 75.1702 but seeks a single civil penalty of $10,0 00, apparently
considering these charges to constitute one violation under
Section llO(a) of the Act . The citation, No. 4038467, as first
issued on May 19, 1994, charges as follows:
The operator was not complying with the approved search
program for smoker's articles, a full pack of Marlboros
and an empty Marlboro pack, one bic lighter, 2 cigarette
butts were found on the active section, smoker's
articles were found in foreman's lunch box, a cigarette
butt was found in mechanic's coat pocket and an empty
pack in his mechanic's car. The lighter was found on
the mine floor and one cigarette butt found on the mine
floor.
On September 1, 1994, the citation was amended to include
the following additional charges: 4
Section I, Item B should include the language, "The mine
foreman, Dewey Hubbard, smoked or carried smoking
materials, including one (1) full pack of cigarettes and
one (1) empty pack of cigarettes (both Marlboro brand),
underground. Also, the mechanic, Robert Hardin, smoked
or carried smoking materials, including one (1)
cigarette (butt found) (Basic brand), and one (1) empty
pack of cigarettes (Basic brand), underground. Finally,
a further search of the mine revealed that persons
unknown smoked or carried smoking materials including
one (1) cigarette (butt found) and one (1) 'Bic'
cigarette lighter underground."
In essence, the charges in tqe original citation were that
Alpha failed to comply with its approved search program for
4

In spite of these additional charges the Secretary did not concomitantly amend his
pleadings to increase the amount originally proposed for a civil penalty.

778

smoking articles based on the discovery during the May 19, 1994,
inspection of various alleged smoking materials, including
purported cigarette butts, several empty and a full package of
cigarettes and a 'Bic' cigarette lighter. In relevant part, the
cited standard provides that "the operator shall institute a
program approved by the Secretary, to insure that any person
entering the underground area of the mine does not carry smoking
materials, matches, or lighters . " The relevant approved smoking
plan provides as follows:
1.

Each individual miner shall be informed that smoking or
carrying smoki ng articles into the mine is a violation
of these provisi ons and is subject to a penalty .

2.

A systematic search for smokers' articles of all persons
entering the mine (including, but not limited to lunch
boxes, lunch bags, tool boxes, etc.) shall be conducted
at least weekly at irregular intervals.

3.

In addition, spot-check searches shall be conducted when
necessary to ensure that such program is being followed.

4.

Responsible persons shall be designated by the operator
to conduct such searches and record of the searches will
be kept.

5.

"No Smoking" signs shall be prominently displayed at all
mine entrances.

Since there is no dispute that at least one full package of
cigarettes and a functioning cigarette lighter were found in the
mine, it is clear that the violation is proven. The violation
was also the result of high negligence since clearly inadequate
searches were conducted for smoking articles on persons entering
the mine. In this regard, mechanic Robert Hardin testified that
the last time he had been searched for smoking materials upon
entering the underground portion of the mine neither the jacket
he was wearing nor his lunch box nor shoes nor socks was
searched. It was only a "pat down" and the miners were not even
asked to turn out their pockets. Moreover, Foreman Hubbard
admitted that when searching for smoking materials he did not
actually check miner's lunch pails but merely accepted their word
that no smoking materials were within. Upon this evidence alone,
it is clear that a violation is proven.
Since there is some question whether the above theory of a
violation was charged in the citation at bar, I note the
following theory which is implicitly incorporated in the citation
is also supported by a preponderance of the evidence. In this
regard the cited standard requires that the program instituted by
the operator must "insure" that any person entering the

779

underground area 01 the mine does not carry lighters or smoking
materials. Accordingly, there is liability without fault if a
person in the underground area of the mine is found carrying
smoking materials. For this additional reason the citation must
be affirmed. Foreman Hubbard had admittedly been
carrying a full package of Marlboro cigarettes underground in his
dinner bucket and it may reasonably be inferred that the operable
"Bic" cigarette lighter had been carried underground.
Additional violations are alleged in the amended citation
in that each of the six materials was alleged to constitute
evidence of either smoking and/or of carrying smoking materials.
Clearly the discovery of a full package of cigarettes and a
functioning "Bic" cigarette lighter is evidence that smoking
materials had been carried underground. 5 In addition, when those
articles are considered in conjunction with the two empty packs
of cigarettes found underground, one in the same lunch bucket
containing the same brand of a full pack of cigarettes and the
other in close proximity to a cigarette butt of the same brand,
there is clearly sufficient evidence to support a finding that
smoking had also occurred underground. Accordingly, the
allegation that smoking had occurred underground is ·also proven
as charged .
The violations were also clearly "significant and
substantial" and of high gravity. A "significant and
substantial" 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." A violation is properly
designated significant and 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

s Based on findings in the related cases I do not find that empty cigarette packs or
cigarette butts incapable of being smoked, constitute "smoking materials".

780

injury; and (4)
a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
In United States Steel .Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury." u.s. Steel
Mining co., 6 FMSHRC 1834, 1936 (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}.
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
The evidence herein demonstrates that "smoking materials"
and a lighter had, in fact, been carried underground at the Alpha
No. 1 Mine. It is also reasonable to infer from the evidence
that it was a common, if not accepted, practice to do so in this
mine.
Indeed, the section foreman himself was found to be
carrying both an empty and a full pack of cigarettes in his lunch
bucket without credible justification.
The testimony of Inspector Sampsel that the violations were
''significant and substantial" is also essentially undisputed. He
testified that there was a danger of methane ignition aggravated
by a dust explosion from smoking underground. Sampsel noted that
this mine had extensive old workings and was adjacent to mines
which had been sealed off. He further noted that such seals have
a tendency to leak explosive methane gas and can be disturbed by
roof falls. He also testified that the old works cannot properly
be examined and it would not be unusual to have methane leaking
from such areas.
Indeed , he concluded that there was a "high
probability" of methane in the sea'led areas and contamination
from leakage from broken seals. The record also shows that Alpha
had, in fact, on occasion cut into these abandoned areas.
Sampsel further noted that mining had occurred both above
and below the level of the mine at issue and roof falls and
heaves can cause leakage from these other seams . He observed
that nine people working in the area could suffer death from

7 81

burns, explosions, and/or carbon monoxide suffocation.
In this
regard the record also shows that at least one mine disaster, at
the Grundy mine, resulted in the death of nine miners from an
explosion when an individual smoked underground at the same time
an abandoned working was cut into.
The violation was also the result of high operator
negligence and "unwarrantable failure".
Indeed, it was the agent
of the operator himself, section foreman Hubbard, who I have
found personally and willfully violated the law. His negligence
is further apparent from his failure to properly conduct smoking
searches. He admitted that when "searching" for smoking
materials he did not actually check the miners' lunch pails but
merely accepted their word that none were present. The
negligence of its foreman is imputed to the operator. Southern
Ohio Coal Co., 4 FMSHRC 1459 (1982); Rochester & Pittsburgh coal
Co., 13 FMSHRC 189 (1991). Moreover, the aggravated negligence
herein meets the criteria for unwarrantability. See Youghiogheny
and Ohio Coal co., 9 FMSHRC 2007 ( 1987), Emery Mining Corp.,
9 FMSHRC 1997 (1987).
Within this framework of evidence and considering the
criteria under section llO(i) of the Act, it is further apparent
that the propose'd civil penalty of $10,000 is appropriate for the
violations charged in Citation No. 4038467.
ORDER

Docket No. KENT 94-1224 - Citation No. 4039258 is hereby vacated.
Docket No. KENT 94-1223 - The charges in Citation No. 4039257
alleging that Dewey Hubbard carried smoking materials are
affirmed in part and vacated in part as set forth in this
decision. Dewey Hubbard is hereby directed to pay a civil
penalty of $250 within 30 days of the date of this decision .
Docket No. KENT 94-1194 - Citation No. 4038467 is affirmed.
Alpha Mining Company is hereby directed to pay a civil penalty of
$10,000 within 30 days of the date of this decision.

fl

.

'f
~

.

Gary ~elick

·JJvv,
\

\ '.

Admini~trative tfw Judge

.v

782

~

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)
Bill Hayes, Esq., Attorney for Alpha Mining Company, P.O. Box
817, 2309 Cumberland Avenue, Middlesboro, KY 40965 (Certified
Mail)
/jf

783

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

MAY 2 4 1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)
On behalf of
WILLIAM KACZMARCZYK ,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 95-1-D
MSHA Case No. WILK CD 94 - 01

I

Ellangowan Refuse Bank
No. 45

v.

READING ANTHRACITE COMPANY,
Respondent
DECIS I ON

Appearances:

Stephen D. Turow, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainant;
Martin J. Cerullo, Esq., Cerullo, Datte &
Wallbillich, P.C., Pottsville, Pennsylvania,
for Respondent.

Before:

Judge Amchan
Procedural Background

On September 12, 1994, I ordered Respondent, Reading
Anthracite Company, to temporarily reinstate Complainant,
William Kaczmarczyk, to his light ~uty position following
an evidentiary hearing on the Secretary's application for
such relief (Docket No. PENN 94-417-D, 16 FMSHRC 1941) .
On September 30, 1994, the Secretary then filed a d i scrimination complaint on Mr. Kaczmarczyk's behalf. A hearing
on the merits of this complaint was held on March 14, 1995,
in Pottsville, Pennsylvania. The record of the temporary

784

reinstatement hearing has been incorporated into the record
of the discrimination proceeding (Tr. II : 6-7 1 ) .
Factual Background
William Kaczmarczyk began working for Respondent in December
1 976 (Tr. I: 21-22) . He became an electrician with the company
in 1985, working at the St. Nicholas Breaker and the Ellangowan
Refuse Bank (Tr. I: 23-25).
In October 1989, Kaczmarczyk injured
his back while moving a 300-pound motor with a bar (Tr. I: 43).
He was on workers compensation from October 1989 to January 1992,
except for 4-1/2 weeks in February 1991, when he unsuccessfully
tried to return to work (Tr . I: 46-49). On January 8, 1992,
after undergoing a cervical spinal fusion four months earlier,
Kaczmarczyk returned to work on light duty (Tr. I: 49).
Complainant worked on light duty from January 8, 1992 until
October 15, 199.3, when he was placed back on workers compensation
status {Tr. I: 52-53). Prior to October 1993, Kaczmarczyk was
the treasurer of Local 7226 of the United Mine Workers of America
(UMWA) . He was also a mine committeeman and safetyman for his
local, which represented Respondent's employees at the
St. Nicholas Breaker (Tr. I: 33-35) . Another UMWA local,
No. 807, represented employees at the Ellangowan Refuse Bank
(Tr. I: 34). 2
Protected Activity
Complainant served as employee walkaround representative
for an MSHA inspection conducted between September 15 and 17,
1993 (Tr. I : 90-93, Sec. Exh. 1) . He was also the walkaround

I will refer to the transcript of the September 1, 1994
temporary reinstatement proceeding as Tr. I and the transcript
of the March 14, 1995 hearing as Tr. II.
1

2

Complainant performed electrical work at Ellangowan
(Tr. I: 27-28). Prior to October 1993, Local No. 807 did not
represent any electricians (Tr . I: 173) . Since that time
Local 807 has assumed jurisdiction over all Respondent's
miners at the Ellangowan Refuse Bank and the St. Nicholas
Breaker (Tr. II: 46) .

785

representative for an MSHA electrical inspection that was
conducted on October 4, 12, and 14, 1993, at the Ellangowan
Refuse Bank (Tr. I: 105-08) . On the last day of the October
inspection, Respondent's safety director, David Wolfe,
questioned the need for Mr. Kaczmarczyk's presence during the
inspection since Michael Ploxa, President of Local 807, was also
serving as a walkaround representative (Tr. I: 107-13, 268-69).
The next day, October 15, 1993, Complainant was informed
t h at he was being put back on workers compensation (Tr . I: 52-53,
122-23). He alleges that this was done in retaliation for his
activities as walkaround representative during the October 1993
inspection, wh ich resulted in nine citations being issued to
Respondent (Exhibit B to the Secretary of Labor's Application
for Temporary Reinstatement, Sec. Exh. 3).
Respondent's Position
Respondent contends that Complainant's return to workers
compensation status was non-retaliatory. On October 14, 1993,
Safety Director David Wolfe received a telephone call from
Andrea Antolick, a nurse and field service representative for
Comprehensive Rehabilitation Associates. Ms . Antolick oversees Mr. Kaczmarczyk's rehabilitation program for Respondent's
workers compensation insurer (Joint Exh. 1-DP, pp. 6-8, 21).
She informed Wolfe that the results of a September 30, 1993
functional capacity evaluation (FCE) of Kaczmarczyk were invalid
because Complainant did not put forth his maximum effort to
complete the test (Joint Exh. 1-DP, pp. 23-24).
On the morning of October 15, Antolick met with Wolfe for
about an hour (Joint Exh. 1-DP, pp. 27-32). Mr. Kaczma~czyk's
case was discussed for about 15 minutes (.I.b.id . p. 29). Antolick
again ·discussed with Wolfe the invalidity of the functional
capacity test (.I.bid . p. 27) and he'r opinion that Comprehensive
Rehabilitation did not have a current assessment of
Mr. Kaczmarczyk's physical capabilities 3 •

3

"Invalidity" appears to be a term of art and indicates a
lack of good faith effort on the part of the individual being
tested (Joint Exh 1-DP, p. 19).

786

Wolfe contends that his October 14 conversation with
Antolick precipitated the decision to return Kaczmarczyk to
compensation status that was totally independent of
Kaczmarczyk's activities as a walkaround representative
(Tr . I: 254-55, 311-16) . General Manager Frank Derrick ,
however, testified that the report that Compl ainant failed
to complete the functional capacity test was "coincidental"
to his return to workers compensation status (Tr. I: 349 - 50).
Derrick contends that recurring reports from supervisors that
Mr. Kaczmarczyk was not performing assigned duties led to this
decision (Tr. I: 350 ) .
Evaluation of the Evidence
Did Respondent Vi o late Section 105{c ) of 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, includi ng a complaint notifying
the operator or the operator's agent ... of an
alleged danger or safety or health 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), rev'd on other g rounds
sub nom . Consolidation Coal Co. v . Marshall, 663 F. 2 d 1211
(3d Cir. 1981), and Sec . ex rel. Robinette v . United Castle Coal
,CQ., 3 FMSHRC 803 {April 1981) .
In these cases, the Commission

787

held that a complainant establishes a prima facie case of
discrimination by showing (l} 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 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.
The timina of Complainant's return to workers compensation
and evidence of safety- related animus
The timing of Mr. Kaczmarczyk's return to workers compensation status, one day after his protected activities as an
employee walkaround representative, establishes a prirna facie
case. Donovan v. Stafford Construction Co., 732 F . 2d 954, 960
(D.C. Cir. 1984); Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508,
2511 (November 1981) . Additionally, I conclude that Safety
Director Wolfe did harbor some degree of animus towards
Kaczmarczyk due to his participation in the October MSHA
inspection.
Mr. Wolfe was not happy to see Kaczmarczyk participating
in the inspection on October 14, 1993, and challenged the
necessity of his presence.
In view of the fact that Michael
Ploxa, President of UMWA Local 807, was also acting as employee
walkaround representative, and the fact that other electricians
were available, Wolfe considered Kaczmarczyk's participation
unnecessary (Tr . I: 175-76, 308)_.

788

The nexus between the October inspection and Complainant's
return to workers compensation is not overwhelming. · Although
the October 1993 MSHA electrical inspection was initiated by
an employee complaint, Kaczmarczyk did not file the complaint
(Tr . I : 9 7 - 9 8 , 178) . 4
Additionally, there is nothing in this record to suggest
that anything that Mr. Kaczmarczyk did as walkaround represen tative on October 4, 12, and 14, 1993, aroused Respondent's ire.
Although Respondent received nine citations as a result of this
inspection, there is no indication that Complainant's conduct
as a walkaround representative was responsible for any of these
citations (Tr. I: 277 , 301).
In summary, there i s virtually
nothing in the record to indicate that Respondent would have any
reason to retaliate against Complainant solely for his role in
the Octobe r 1993 inspection.
Neverthele~s,

I conclude that Complainant would not have
been returned to workers compensation status but for the cumulative effect of his activities as a walkaround representative
during MSHA inspections .
I regard the statements and conduct
of Safety Director Wolfe at Kaczmarczyk's October 18, 1993,
grievance hearing to be determinative on this issue.
The statements and conduct of Safety Director David Wolfe
at the October 18 . 1993 grievance meeting
Kaczmarczyk filed a grievance over his return to . workers
compensation status. It is uncontroverted that at a meeting
on the grievance on October 18, 1993, Wolfe and Kaczmarczyk
got into a heated argument over the reasons for this personnel
action. It is also undisputed that during this argument Wolfe

4

Although Foreman Vince Devine asked Kaczmarczyk who made
the complaint that led to the October inspection, Kaczmarczyk
told Devine it was not him (Tr. I : 100-105). There is no reason
to believe Devine suspected it was Kaczmarczyk who complained
about the presence of water near electrical components in the
steam genny house, which was the subject of the complaint (Tr. I:
16-17, 178-79). Devine was present during the inspection in
which this concern was raised and Kaczmarczyk was not (Tr . I: 97,
Secretary's Exhibit 2) .

789

went into another room, obtained a stack of MSHA citations
issued to Respondent and threw, or placed them, on the table
(Tr. I: 128-29, 191-93, 274-75, 283-93).
According to Kaczmarczyk and Jay Berger, the UMWA district
representative present, whose testimony I credit, Wolfe said
something to the effect that these citations were another reason
why Kaczmarczyk was being placed on compensation (Tr. I: 128-29,
191-93) 5 •
I regard Wolfe's statement as an admission that
Complainant's protected activities were a significant factor in
Respondent's decision to return him to workers compensation.
The alternative explanations offered by Respondent for
Wolfe's actions and statement are unpersuasive. Wolfe testified
that the citations he placed on the table were not those issued
in September or October, 1993, but were citations issued in
August 1992 which were largely the fault of Mr. Kaczmarczyk
(Tr. I: 274-278) 6 • At the temporary reinstatement hearing, Wolfe

5

Wolfe testified that he never told Kaczmarczyk that he
was being placed back on workers compensation because he
participated in a walkaround inspection (Tr I : 275), which is
not a direct contradiction of the testimony of Kaczmarczyk and
Berger. He also testified that when he put the citations down
he said to Kaczmarczyk, "[t]his is why you can't perform your
job duties" (Tr . I: 287). However, Wolfe's continued explanation provides sufficient reason for the undersigned not to
credit his testimony on this issue.
Q.
. .. What's the connection between putting those
[citations) down on the table and telling Mr. Kaczmarczyk he
couldn't do his job? ...

A.

I

really don'~ know.

(Tr. I : 2 8 7 - 8 8) .
6

The credibility of Wolfe's testimony is undermined by its
inconsistency in several regards.
For example, he testified at
the temporary reinstatement proceeding that he did not hold
Kaczmarczyk responsible for the October 1993 citations (Tr. I:
276-78). At the discrimination hearing, however, he testified

790

testified that he put the citations on the tab l e ''out of
frustration" (Tr. I : 275), and to emphasize that Respondent
would not get as many citations as it was receiving if all its
employees were capable of doing their jobs (Tr . I: 274-75).
I cannot credit Wolfe's testimony that he was agitated
about August 1992 citations in October, 1993, but not about
the 14 citations Respondent had received in the preceding month
(Sec. Exhibits 1, 2, and 3). This is particularly hard to
believe in view of the fact that the October 1993 inspection
was the first time that Respondent had received as many as
nine citations from an MSHA electrical inspection (Tr. I: 186).
Further, the credibility of this testimony is greatly undermined
by the fact that at a grievance proceeding on November 22, 1993,
Wolfe could not remember which citations he placed on the table
on October 18, 1993 (Tr. I: 291-93).
Similarly unconvincing is Wolfe's testimony at the temporary
reinstatement hearing that his actions and statements at the
October 18, 1993 grievance meeting were an indication of his
frustration with Complainant's failure to perform work assignments which caused the August 1992 citations (Tr. I: 274-278}.
At the temporary rein statement proceeding Wolfe testified that
some of the conditions leading to the August 1992 citations would
not have existed if Kaczmarczyk had been able to fully perform
his job (Tr. I: 276-77, but also see Tr. I: 287}. However, at
the discrimination hearing he testified that Complainant was not
disciplined because he accepted Kaczrnarczyk's assertion that he
had reported the violative conditions to his foreman, who fa i led
to take corrective action (Tr. II: 175}.
Complainant's failure to complete a funct i onal
capacity evaluation
Safety Director Wolfe explains the timing of Complainant's
return to compensation status as due to the receipt of information on October 14, 1993, that Kaczmarczyk refused to make a good
faith effort to complete a functional capacity evaluation (FCE}

fn . 6 (continued}
that some of the citations were due to Complainant's failure to
do electrical inspections p r operly (Tr. II: 1 96-198}.

791

on September 30, 1993 (Tr. I: 253-55, Exh. R-10). However,
General Manager Frank Derrick indicated that Kaczmarczyk's
alleged refusal to take the FCE had little to do with
Respondent's decision to put him back on workers compensation
(Tr . I : 3 4 9 - 5 0 ) .
Derrick characterized that information as "coincidental"
to his decision {Tr. I: 350). The inconsistency in the testimony of the two witnesses who decided to transfer Complainant
to workers compensation itself suggests discriminatory motives,
N.L.R.B. v . Rain-Ware . Inc., 732 F.2d 1349, 1354 (7th Cir. 1984);
Hall v. N.L.R . B., 94 1 F.2d 684 688 (8th Cir. 1991).
Even if I disregard this inconsistency, the extremely rapid
response of Mr. Wol fe to this information, considered in the
context of Kaczmarczyk's recent protected activity, and Wolfe's
statements at grievance proceeding, leads me to conclude that
his receipt of information regarding the functional capacity
evaluation is not an intervening event that rebuts Complainant's
prima facie case, or establishes a legitimate affirmative
defense.
The record shows that Mr. Wolfe received a call from Andrea
Antolick, a nurse employed as a field service representative, on
October 14, 1993. Antolick reported that Kaczmarczyk had not put
forth maximum effort when failing to complete the functional
capacity evaluation (Tr. I: 311, Joint Exh.-1-DP, p. 21-23, 35,
Sec. Exh. 3-DP, 4-DP, & 5-DP) 7 •
On the morning of October 15, 1993, Ms. Antolick had a
meeting with Mr. Wolfe, at his office, which lasted about an
hour (Joint Exh-1 -DP, p. 26-32). Approximately 15 minutes was
spent discussing Complainant (Ibid., p. 29-30). Antolick and
Wolfe discussed her understanding that Kaczmarczyk's test results
were invalid and she indicated that she was going to attempt to
obtain an opinion regarding his physical capabilities from his
physician, Dr. Keith Kuhlengal, a neurosurgeon (l..d....., p. 27).

7

I credit Antolick's testimony that the first report to
Respondent regarding the functional capacity report was made on
October 14, 1993, rather than October 12.
792

Although Wolfe knew Antolick had no first-hand knowledge
regarding the FCE, he decided t o return Kaczmarczyk to workers
compensation without making any sort of inquiry of Complainant
or the individuals who conducted the test (Tr. I: 312-16) 8 •
Absent other factors, it is not implausible that an .employer
would react immediately to information indicating malingering
on the part of one o f it employees. However, in the instant
case, given the fac t that Kaczmarczyk had been on light duty
for 21 months, I conclude that the rapid response to Antolick's
report, if i t in fa c t was a factor in Wolfe's decision, was n o t
made independentl y o f h is animus towards Complainant's safety related activities.
Was Complainant re t u rned to workers compe nsat ion status
as the result of a non-discr i minatory application of
Respondent 's light-duty program?
Respondent also argues that Mr. Kaczrnarczyk's return to
compensation status was the result of a non-discriminatory
application of its light-duty program. The decision to return
Complainant to compensation was made by General Manager
Frank Derrick, in consultation with Safety Manager David Wolfe
(Tr . I : 3 3 8 , 3 4 4 , 3 4 9 - 5 0) .
While both Wolfe and Derrick point to a number of instances
in which Kaczmarczyk was unable to do work assigned to him while
on light duty, they are able to conclusively establish only one
which occurred in the two and a half months prior to the decision
to return him to compensation (Tr . I: 66 - 67, 75-76, 203, 238,
322, Tr. II: 125-130, 1 34, 138 - 139, 148-150, 153-154). The
record indicates that Complainant had been unable to do job
assignments throughout his 21 months on light duty and does not
conclusively establish non-retaliatory reasons for which the
company made an issue of Kaczmarczyk's restricted abilities in
October 1993. Indeed, Complainant was unable to do much more
work in 1992 and during the previous winter than in the fall of
1993 (Tr. I: 222-23) .

81

do not infer from Wolfe's testimony at Tr. I: 315-16
that he sought input from Kaczmarczyk before Respondent decided
to return Complainant to workers compensation status (See Tr. I:
123) .

79 3

Respondent asks, at page 3 of its post-trial brief, that
this decision carefully account for the nature and purpose
of its light-duty program, and not disrupt the company's
legitimate purposes in providing such a program and administering it in a flexible manner. Of course, nothing in the
Federal Mine Safety and Health Act prohibits Respondent from
administering its light duty program in a non-discriminatory
way, including non-retaliatory transfers from light-duty back
to workers compensation.
On the other hand, a transfer from light-duty to workers
compensation that would not have occurred but for activity
protected by the Act is prohibited by section lOS(c).
Given
Complainant's prima facie case, Respondent falls far short of
showing that his return to workers compensation was the result
of a non-discriminatory application of its light-duty program.
Respondent has satisfied me that there are many other miners
that have been ·on light duty who also were put back on workers
compensation (Tr. I: 246, 264-66, 336-37, 354-57). However, it
has not established that prior to the instant case there was any
company policy that light-duty assignments are temporary, or
intended to be in the nature of a work-hardening program, as it
now contends.
The only written evidence of the policy, Exhibit
R- 8, says nothing of the sort.
Further, Secretary's Exhibit 2 - DP
strongly suggests that prior to Complainant's transfer there was
no such hard and fast rule. Nurse Antolick, in a report dated
July 14, 1993, stated:
Vocational Implications:
I spoke with Dave Wolfe
of Reading Anthracite. Mr . Wolfe stated that
Mr. Kaczmarczyk has been working well in his
light - duty position and requested I not contact
him.
I explained my attempting to obtain a
consent through Mr . Kaczmarczyk's attorney and
that I will be only contacting his physician.
Mr. Wolfe did state that client could remain in
present job indefinitely.
I did obtain a job
analysis on client's pre-injury job (emphasis added) .
Moreover, even if the program was intended to be temporary,
the issue in this case is the timing of the decision to put
Complainant back on workers compensation. The question is

794

not whether Respondent at some time could have returned
Mr. Kaczmarczyk to workers compensation because of lack of
work or lack of improvement in his physical condi~ion. The
issue before me is whether it changed his status on October 15,
1993, for non-discriminatory reasons, or whether that transfer
would not have been made but for his protected activity.
The list of miners who also were returned to workers
compensation from light-duty does not help Respondent's case
at all.
For starters, although its brief repeats the assertion
made by Mr. Wolfe (Tr . II : 192) that no employee spent more time
on light duty than Mr. Kaczmarczyk, Exhibit R-1-DP indicates
that is not so.
On October 15, 1993, Complainant had been
on light duty for approximately 21 months. Respondent's exhibit
indicates that David Eckert was on light duty from December 31,
1991 to March 3, 1994 (26 months).
It lists Joseph Holland as
having been on light duty from February 25, 1992 to February 24,
1994 (24 month~). Keith Mielke was on light duty from June 10,
1991 to June 14, · 1993 (24 months). Russel Sadusky was on light
duty from January 13, 1992 to June 3, 1994 (28 months).
Evidence of Malingering
General Manager Derrick testified that Complainant was doing
less work than he was capable of doing (Tr. I: 346-47). There is
substantial testimony to the contrary (Tr. II : 124-130, 134, 148150, 152, Sec, Exh. 1-DP and 2-DP). While other evidence also
suggests that Mr. Kaczrnarczyk 1 s physical capacity was not as
limited as he contends (Joint Exh-1-DP, pp. 35-39, Exhs . R-6,
R-10, R-11), I need not decide whether Complainant exaggerated
his limitations because the record does not support a finding
that Respondent returned him to workers compensation for this
reason.
Respondent has established only one instance in the two
and a half months prior to October 15, 1993, when Kaczmarczyk's
supervisors reported to Wolfe or Derrick that Complainant had
declined to perform a task (Tr. I : 238, II: 124-130, 134, 138,
148-150). This occurred on September 24, 1993, when Kaczmarczyk
told his foreman that he could not continue cutting weeds
(Tr. II: 124-30).

79 5

There is also lit~le concrete evidence regarding such
refusals in 1993. Complainant's principal foreman , Vince Devine,
maintained a daily log in 1993. After checking this log for
the period January 1, 1993 through October 15, 1993, Devine
could find no recorded instance in which Kaczmarc z yk d eclined
to complete a task due to his phys i cal condition other than
the weed cuttin g incident (Tr. I I : 125-138) 9 •
Cl aire Yarnell, the electrical foreman who occasionally
s upervised Kaczmarczyk, is only aware of two or three instances
in 1993 in which Complainant declined to complete tasks due to
his back.
One is the aforementioned weed cutting incident and
another was an occasion in the summe r of 1993 in which
Kaczmarczyk said he could not con t inue to help other employees
roll up wire (Tr. I: 200-204, II: 150, 153-54}.
Thus, there is no basis for finding that Complainant's job
performance was _ a bona-fide nondi s criminatory reason for his
return to workers compensation.
I n so concluding, I weigh the
evidence adverse to Complainant in the context of his protected
activity, the indications of Mr. Wolfe's safety-related animus,
and the paucity of information available to Wolfe and Derrick
that Kaczmarczyk was declining to perform tasks, or that his
work was deteriorating.
I also consider that Respondent ' s supervisors presented
something less than a united front on the issue of Kaczmarczyk's
work performance. Claire Yarnell described Complainant as an
excellent worker, who did whatever was asked of him (Tr. II :
148-9, 152). Even Safety Director Wolfe described Kaczmarczyk's
work as sometimes "excellent" (Tr . II: 166-67; also see Wolfe ' s
characterizations of Complainant 's work in Sec. Exh. 1-DP and
2-DP) .

9 Devine's

log for September 24, 1993, states, "Billy K
told by Dave to cut weeds, he said his back is hurting him"
(Tr . I I : 13 4 ) .

796

Was Complainant put back on workers compensation
in a non-discriminatory manner due to lack of work?
At the temporary reinstatement hearing, General Manager
Derrick testified, to the surprise of Respondent's counsel, that
there was not sufficient light-duty work to keep Complainant
busy both at the time of the hearing and on October 15, 1993
(Tr. I: 339-344). As the Secretary notes in his brief , this
contention was not mentioned in Mr. Derrick's Affidavit that
was attached to Respondent's Response to the Application for
Temporary Reinstatement.
Moreover, I conclude that there is no credible evidence
that Complainant was put back on workers compensation due to
lack of work. Mr. Wolfe told Ms. Antolick in July, 1993, that
Mr. Kaczmarczyk could stay on his light duty job indefinitely
(Sec. Exh. 2-DP). There is no evidence of any relevant change
of circumstances prior to October 15, 1993. Although Respondent
introduced evidence regarding changes at its worksite since
October 15, 1993, there is nothing in the record that would
indicate that these changes had anything to do with its decision
to put Complainant back on workers compensation on October 15.
Conclusion
The record as a whole establ i shes a prima f acie case of
discrimination in violation of section 105(c) of the Act, which
is not adequately rebutted by Respondent.
I find that but for
Mr. Kaczmarczyk's participation in the MSHA inspections of
September and October 1993, he would not have been placed back
on workers compensation status on October 15, 1993. In so
deciding, there are three considerations that stand out from
the others. First is the timing of personnel action. Second
is Safety Director Wolfe's irritation at seeing Complainant
on the MSHA walkaround on October 14. Last are the statements
made by Wolfe on October 18, which I construe as an admission
by Respondent that Kaczrnarczyk 1 s protected activity and his
return to workers compensation status were related.

797.

ORDER

Respondent is ordered to reinstate Complainant to the
position he held prior to October 15, 1993. The parties are
to confer and advise the undersigned within 30 days of this
decision as to whether they are able to stipulate to the
damages sustained by Complainant due to Respondent's violation
of section 105(c) of the Act, and an appropriate civil penalty.
If the parties are unable to so stipulate, they may either
submit written arguments on these issues or request a supplemental hearing .
As agreed to by the parties, I retain jurisdiction over
this matter to issue a decision on the Secretary's Motion to
Enforce the Order of Temporary Reinstatement. A hearing on this
motion was held on May 19, 1995, after which the parties have
been provided an opportunity to file written closing arguments .

04~~

Arthur J. Amchan
Administrative Law Judge
Distribution:
Stephen D. Turow, Esq., Office of the Solicitor,
U.8. Department of Labor, 40 1 5 Wilson Blvd., Suite 400,
Arlington, VA 22203 (Certified Mail)
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich,
P.C., Second Street & Laurel Bl vd., P.O. Box 450,
Pnttsville, PA 17901 (Certified Mail)

/lh

79 8

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

.MAY 2 4 1995
DISCRIMINATION PROCEEDINGS

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
JAMES HYLES,

Docket Nos. WEST 93-336-DM
WEST 93-436-DM
WEST 93-337-DM
WEST 93-437-DM
WEST 93 -33 8 -DM
WEST 93 -438-DM
WEST 93-339-DM
WEST 93 -439-DM
WEST 94-021-DM

DOUGLAS MEARS,
DERRICK SOTO,
GREGORY DENNIS,
Complainants

v.
All American Aggregates
ALL AMERICAN ASPHALT,
Respondent
DECISION
Appearances:

J. Mark Ogden, Esq., Office of the Solicitor, U.S.
Department of Labor, Los Angeles, California,
for Complainants;
Lawrence Gartner, Esq., Naomi Young, Esq., Gartner
& Young, P.C., Los Angeles, California,
for Respondents.

Before:

Judge cetti

These consolidated discrimination proceedings arise under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et ~ {1988) ("Mine Act"). The proceedings were initiated by
the Secretary under Section 105(c) (2) of the Mine Act on behalf
of the Complainants James Hyles, Douglas Mears, Derrick Soto and
Gregory Dennis.
At the close of the December, 1993 hearings at Riverside,
California, the undersigned Judge issued an Order of Temporary
Reinstatement from the bench, followed by a written decision a
few days later ordering temporary reinstatement of the Claimants.
See Docket Nos. WEST 93-124, WEST 93-125, WEST 93-126 and WEST
93-127. Published in 16 FMSHRC 31 (1994).
799

On November 2, 1994, a decision on permanent reinstatement
was issued and published at 16 FMSHRC 2232. By agreement and
request of the parties the issue of back-pay and benefits was
severed from the hearing and decision on liability.
The November 2, 1994, decision ordered the operator All
American Asphalt to reinstate each of the Claimants to his former
position with full back- pay, benefits and interest, at the same
rate of pay, and the same status and classification that he would
now hold had he not been unlawfully discharged . The decision
also directed counsel for the parties to confer with each other
with respect to the remedies due each of the Claimants and
encouraged the parties to reach a mutually agreeable resolution
or settlement of these matters.
The undersigned Judge also retained jurisdiction until the
remedial aspects of this case were resolved and finalized.
The November, 1994 decision directed the parties to state
their respective positions on those compensation issues where
they were unable to agree and to submit their respective
proposals, with supporting arguments and specific proposed dollar
amounts for each category of relief.
At the request of the parties, an extension of time was
granted for submission of the position statements . The position
statements were filed by the parties on December 31, 1994 . The
parties could ~ot reach an agreement and requested a hearing on
the dollar amount of back-wages and penalties. A hearing was set
and then without objection was continued at the request of the
Secretary to M~y 8-10, 1995, in Riverside, California .
Just prior to the scheduled May 1995 hearing, the parties
after conference calls on May 5th and May 8th 1995 notified the
Judge that they had reached an agreement on the dollar amounts
due. They requested cancellation of the May hearing on the
grounds that it would no longer be necessary or productive in
view of a stipulation reached by the parties. The scheduled
hearing was canceled and the parties were directed to promptly
file their stipulation. The stipulation was filed on May 22,
1995.
The stipulation is attached to this decision as Exhibit A.
While the stipulation will of course speak for itself it is clear
from the stipulation the parties agree to certain dollar amounts
of back-pay due each Claimant during a specified time period for
the purpose of settling the record. The stipulation, however, is
not an agreement as to entitlement thereto . Respondent disputes
liability and reserves its right for review and appeal.
The parties now want and are entitled to a prompt final
decision.
I accept the stipulati~n filed by the parties (Ex. A)
800

and subject to the terms of that stipulation make the following
findings and awards for the agreed period prior to December 17,
1993.
I find that each of the Claimants for the period prior to
December 17, 1993, are entitled to back-pay plus interest accrued
from March 15, 1993, until the date of payment in the following
amounts:
Amounts
James Hyles
Derrick Soto
Douglas Mear s
Gregory Denn i s

$20,837.24 plus
$34,347.10 plus
$38,656.34 plus
$36,159.32 plus

interest
interest
interest
interest

I find ciyil penalties totaling $28,000.00 appropriate for
Respondent's violations of section 105(g) of the Act as alleged
in the above captioned proceedings. I therefore assess a civil
penalty of $28,000.00 for said violations payable to the Secretary of Labor.
Based on the record and th.e stipulation filed May 22, 1995,
I enter the following:
ORDER

Respondent is ordered to pay the Complainants for lost wage
and interest prior to December 17, 1993, in the following
amounts:
Amounts
James Hyles
Derrick Soto
Douglas Mears
Gregory Dennis

$20,837.24 plus
$34,347.10 plus
$38,656.34 plus
$36,159.32 plus

interest
interest
interest
interest

1

It is further ordered that RESPONDENTS PAY a civil penalty
of $28,000.00 to the secretary of Labor for Respondent's violations of section lOS(c) of the Min~ Act as charged in the abovecaptioned proceedings. All amounts payable by Respondent pursuant to this order shall be paid within 40 days of the date of
this decision.
Interest shall be computed in accordance with the
Commission's decision in Secretary/Bailey v. Arkansas-Carbona, 5
FMSHRC 2042 (December 1983), at the adjusted prime rate announced
semi-annually by the Internal Revenue Service for the underpayment
and overpayment to taxes.
Interest shall be computed from March
15, 1993, until the date of payme~t of back-pay awarded.
80 1

This is my final decision in the above-captioned dockets and
upon full compliance with the decision, the above-captioned
dockets are di~missed.

t1~ ~{{:/ft·
Au~

F. Cetti
Administrative Law Judge

Distribution:
J. Mark Ogden, Esq., Office of the Solicitor, U.S. Department of
Labor, 3247 Federal Building, 300 North Los Angeles Street, Los
Angeles, CA 90012
(Certified Mail)
William Rehwald, Esq., REHWALD, RAMESON, LEWIS & GLASNER, 5855
Topanga Canyon Blvd., Suite 400, Woodland Hills, CA 91367-4600
{Certified Mail)
Lawrence Gartner, Esq., Naomi Young, Esq., GARTNER & YOUNG, P.C.,
1925 Century Park East #2050, Los Angeles, CA 90067-2709
{Certified Mail)

sh

802

1

2
3

4
5

JOHN C. NANGLE
ASSOCIATE REGIONAL SOLI CITOR
J. MARK OGDEN, TRIAL ATTORNEY
OFFICE OF THE SOLICITOR
UNITED STATES DEPARTMENT OF LABOR
Room 3247 Federal Building
300 North Los Angeles Street
Los Angeles, California 90012-3381
Telephone:
(213) 894 - 5410
Attorneys for the Secretary

6
7
8

10

NAOM I YOUNG
LAWRENCE J. GARTNER
GARTNER & YOUNG
A Professional corporation
1925 Century Park East, Suite 2050
Los Angel es , Cali fornia 90067-2 709
Telephon e:
(310) 556-3576
Attorneys for Respondent
ALL AMERICAN ASPHALT

RE CEIVED
i'~ D0nver, Colorado

MAY·2 2 .1$95
fT[)[~A.l ~~t'Jr <;AFTTV t ....1n 1.1~AlTH
i ::

11

12
13
14

15

: ·· .tt "

·,

·j

WILLIAM REHWALD
LAWRENCE M. GLASNER
REHWALD, RAMESON, LEWIS & GLASNER
5855 Topanga Canyon Boulevard, sui t e 400
Woodland Hills, California 91367-4600
Telephone:
(818) 703-7500
Attorneys for Complainants
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

16
IN THE

17

OFFICE OF ADMINISTRATIVE LAW JUDGES

18
19

DISCRIMINATION PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATIVE (MSHA)
on behalf of
I

20

21

JAMES HYLES,

22

DOUGLAS MEARS,

23

DERRICK SOTO, and

24

GREGORY DENNIS,

25

Complainants,

)
)
)
)
)
}
)
)

DOCKET NOS. WEST 93-336-DM
WEST 93-436-DM
WEST 93-33 7 -DM
WEST 93-437-DM
WEST 93-338-DM
WEST 93 · 4 {8-DM
WEST 93-~J9-DM
WEST 93-439-DM
WEST 94-021-DM

)

)

26

vs.

)

ST I PULATION

)

27

ALL AMERICAN ASPHALT,

)

28

Respondent .

)
)

)
TNER &

YOUNG

:.JAOF"ESSIONA L
~ ORPORATI OH

'.'RNEYS A.T LAW

80 3

1

It is hereby stipulated and agreed by and between the

2

Secretary of Labor, and Respondent All American Asphalt, and

3

Complainants James Hyles, Derrick Soto, Douglas Mears, and

4

Gregory Dennis (collectively Complainants), through their

5

respective counsel of record that, assuming liability as found

6

in the Decision of Administrative Law Judge August F. Cetti

7

dated November 2, 1994 in Docket Nos . West 93-336, 93-436, 93-

8

337, 93-437, 93-338, 93-438, 93-339 and 93-439 (hereinafter the

S

"D<=cision"), any

10

statutory penalty shall be as follows:

11

1.

b~ck

pay due each cf t.he Corr.plainc.nts ar:d any

Each Complainant shall be awarded the gross
intere~t,

12

dollar amount, plus

for claimed loss of earnings as

13

set forth opposite his name below, assuming liability (and

14

subject to the further provisions of Paragraph 6 hereof in the

15

event of Commission review and/or appeal to the Courts). The

16

Secretary of Labor and the Complainants seek no benefits as part

17

of these proceedings. Respondent disputes liability and reserves

18

its right to petition the Federal Mine Safety and Health Review

19

Commission ("Commission") for review and to thereafter appeal to

20

the courts from the Commission's final order. Respondent shall

21

make all legally required payroll deductions and withholdings

22

from said gross amounts.

23

deductions from said gross amounts for any alleged off-set or

24

re-payment of unemployment benefits received by Complainants.

25

Interest shall be calculated in accordance with the Notice of

26

Intention by Administrative Law Judge August F. Cetti dated

27

January 13, 1995 at

28

to accrue on March 15, 1993 on the entire back pay award.

Re~pondent

footnot~

1 thereof, with interest beginning

TNER & YOUNG
PftOl-CSSIOHAJ...
CORPORATION
:"ORNCYS AT LA.W
SU1T'E 2050
$ Ct:NT\JRY PA.RI(

shall not make any

804

These

l

amounts constitute the full award for each Complainant to be

2

made herein arising from the claims raised in the cases bearing

3

Docket Nos . West 93 - 336, 93-436, 93-337, 93-437, 93-338, 93-438,

4

· 93 - 339, 93 -4 39 and 94-021 (also referred to as 93 - 021}

5

(hereinafter "Docket Numbers " ), prior to December 17, 1993.
NAME

6
7

James Hyles

$20,837.24

8

Derrick Soto

$34,347.10

9

Douglas :'1ears

$38,656 . 34

10

Gregory Dennis

$36,159.32

11

2.

The Secretary represents that each Complainant

12

has, after receiving advice of counsel, concurred in the amounts

13

set . forth in paragraph 1 above.

14

TNER 6

AMOUNTS

3.

This stipulation is entered into for the purpose

15

specified in Paragraph 8 only, and the stipulation, and any

16

agreements made herein, shall have no force or effect in any

17

other forum or proceeding other than in the MSHA Docket Nos.

18

specified in Paragraph 1 herein. Nothing stated herein shall

19

prohibit or interfere with Respondent All American Asphalt from

20

asserting the right to claim an offset of any back pay awarded

21

in connection with the MSHA Docket Nos . specified in Paragraph 1

22

against any other claim made by Complainants in any other forum

23

or proceeding, and nothing herein shall prohibit any other

24

administrative agency, court, trier of fact or tribunal from

25

making such an offset.

26

4.

The civil money penalty to be awarded herein,

27

assuming liability on the part of Respondent (and subject to the

28

further provisions of Paragraph 6 hereof in the event of

YOU N G

"'R0~$SIOHAL

CORPORATION
TORNE'YS: AT LAW

805

l

Commission review and/or appeal to the Courts), shall be Three

2

Thousand Five Hundred Dollars ($3500.00) per violation for each

3

of the eight alleged violations (i.e . , two alleged layoffs for

4

each Complainant) for a total of Twenty Eight Thousand Do l lars

5

($28,000.00).

6

r~e

7

cases bearing the Docket Numbers set forth in paragraph 1 above

8

(except there shall be no penalty in the case bearing Docket No.

9,

94-021) .

10

Three Thousand Five Hundred Dollars ($3500.00)

maximum penalty to be awarded per alleged violation in the

5.

Nothing herein shall interfere with or prohibit

11

Res: mdent from pursuing all avenues and rights of review and/or

12

appeal of liability found in the above captioned matters.

13

6.

The amounts specified in paragraphs 1 and 4 above

14

shall be reduced, or eliminated in their entirety, in accordance

15

with any determination by the Commission or by the Courts to

16

that effect on appeal (or on a remand ordered by the Commission

17

or the Courts, subject to further petition for review and/or

18

appeal by any party) in the event the finding of liability is

19

not upheld in its entirety upon review and/or appeal.

20

event shall the monetary award to each complainant and penalty

21

L, the cases bearing the Docket Numbers set forth ·in paragraph 1

22

above exceed the amounts set forth in paragraphs 1 and

23

for the period prior to December 17, 1993.

24

7.

In no

4

above,

No provision is made herein with respect to the

25

payment of any amount that may or may not be due to any benefit

26

trust fund.

27
28

8.

The parties acknowledge that neither the

execution nor performance of any provision of this Stipulation

TN ER 8t Y OUNG
PRO F ESSION.AL

CORPOflATSON
."ORNE:YS: AT LAW
SUITE 2050
C:. <':FNTlJCl' V

is

P A.D11('

806

1

shall constitute or be construed as an admission of any

2

liability whatsoever by Respondent or that any monetary award or

3

penalty is due or appropriate and this Stipulation in entered

4

into solely to agree upon a monetary award and penalty in the

5

event of liability (and subject to the fu rther provisions of

6

Paragraph 6 hereof in the event of Commission review and/or

7

appeal to the Courts) in order to avoid the expense of the

8

h earing on remedies scheduled for May 8-10, 1995 .
9.

9

·. RTNER &

10

herein referred to are for th e period prior to December 17,

11

1993; and this stipulation is without prejudice to the right of

12

the Secretary to seek any back pay or civil monetary penalties

13

for a period subsequent to December 1 7, 199 3,, in any separate

14

proceeding, including any action to enforce the temporary

15

reinstatement order of December 17, 1993 and/or a permanent

16

reinstatement based on the Decision of the Administrative Law

17

Judge dated November 4, 1994. Res pond e nt waives no right to

18

challenge and to raise every defense to any such separate

19

proceedings.

20

10.

Approval of this Stipulation by the

21

Administrative Law Judge will have the effect of eliminating the

22

need for the hearing presently scheduled to commence on May 8,

23

1995 regarding the monetary awards and penalty to be awarded in

24

the above captioned matter.

25

that said hearing be immediately taken off calendar pending the

26

Administrative Law Judge's approval of this Stipulation. If the

27

//

28

II

YOUNG

A. PROFESSIONAL

CORPORATION
:-f"ORNEYS AT LAW
C:::llfTF° :1(')50

The rnon2tary recover} amount3 and penalties

Accordingly, the parties request

807

1

stipulation is not approved in its entirety,

it will be void,

2

and either party may request that the hearing be rescheduled.

3

DATED:

5

NAOMI YOUNG
LAWRENCE J. GARTNER
GARTNER & YOUNG
A Professional Corporation

6

May

I Cf' , 1995

4

7

10
11
12

May

{~, 1995

THOMAS S . WILLIAMSON, JR.
Solicitor of Labor
DANIEL W. TEEHAN
Regional Solicito r
JOHN C. NANGLE
Associate Regional Solicitor

8
9.

DATED:

By'LA~."~R

OGDEN, Tri 1 Attorney
rneys for the Government

Attorneys for Respondent
All American Asphalt

13
DATED :

15
16

WILLIAM REHWALD
LAWRENCE M. GLASNER
REHWALD RAMESON LEWIS

17

' i}

18

By'

21
22
23
24

25
26

27
!TNER & YOUNG
PROF'£$SIONAL
COAPORA'T'IOH
T'ORNE'YS AT LAW
5UITE 20$0

'"" ,. ..,,.....'"...............

I

(_

.

5)

WILLIAM REHWALD
Attorneys for complainants
James Hyles, Derrick Soto,
Douglas Mears and Gregory
Dennis

20

28

;/A'
fl~
I

19

..

May _,_i_
· ~' 1995

14

80 8

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

MAY 2 5 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMI NISTRATION (MSHA)

CIVI L PENALTY PROCEEDING
Docket No. WEVA 94-401
A . C . No. 46 - 08242-03502GPF

I

Petit i oner
v.

CSI # 5 Mine
BSC CONSTRUCTION, INC.,
Respondent
DECIS I ON APPROVING SETTLEMENT
Before:

Judge Hodgdon

This case is before me on a petition for assessment of civi l
penalty under Section lOS(d) of the Federal Mine Safety and
Health Act of 1977, 30 U . S . C . § 815(d) . The Secretary, by
c ounsel , has filed a motion to approve a settlement agreement.
The cit ation in this case alleged two separate violations
of the Regulations, Sections 48.28(a) and 48.3l(a), 30 U.S.C.
§§ 48.28(a) and 48.3l{a), and penalties were assessed for each
violat ion . The Sec r etary has modified the citation to vacate all
references to Section 48.3l{a). A reduction in penalty from
$400.00 to $300 . 00 is proposed for the remaining violation .
Having considered the representations and documentation
s u bmi tted, I conclude that the prof fered settlement is
a ppropriate under the criteria set forth in Section 1.1 0 {i) of
the Act, 30 U.S . C . § 820(i).
Accordingly, the motion for' approval of settlement is
GRANTED and it is ORDERED t hat Respondent pay a penalty of
$3 00 . 00 within 30 days of the date of this order . On receipt
of payment, this case is DISMISSED .

J.AH~

T. Todd Hodgdon
Adminis trative Law Judge

809

Distribution:
Caryl L. Casden, Esq., Office of the Solicitor, U.S . Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Mr. Roger L. Glover, Operations Manager, BSC Construction, Inc.,
P.O. Box 945, Uniontown, PA 15401
/lbk

810

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

MAY ~ 5 1995

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-369
A.C. No . 15-14 074 - 03634
Martwick UG Mine

PEABODY COAL COMPANY,
Respondent
DECISION AFTER REMAND
Before :

Judge Amchan
Procedural History

On April 26, 1995, the Commission vacated my decision,
which held that two citations issued to Respondent were
significant and substantial ("S&S").
It remanded this case
for application of Commission precedent, as set forth in
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984) 1 •
Citation No. 3417313 : the external grounding
device on the cathead
On December 14, 1992, MSHA representative Darold Gamblin
inspected Respondent's underground coal mine. Upon reaching
the 3 South Panel entries he encountered an electrical transfo rmer supplying power to the equipment in the entries (Joint
Exh-1).
Plugged into the transformer was a power cable coupler,
or cathead, that was connected to a cable running to a belt
feeder transfer point (Tr. 1 1-14).

The parties have advised the undersigned that they will
rely on the record and briefs filed prior to the issuance of
the Commission's decision.
1

811

The cathead consists of two large metal parts, one of
which is plugged into the other. There is a female · receptacle
mounted on the transformer and a male part to which the cable
is attached. The external grounding device of the cathead
consists of two wires, one attached to each metal part. This
grounding device on the cathead observed by Gamblin was not
functional because these wires were not connected (Tr. 25,
Exh. 4).
Gambl i n therefore issued Respondent Citation
No. 341731 3 alleging an "S&S" v i olation of 30 C.F.R . § 75.701.
This standard provides that:
Metallic frames, casings, and other enclosures of
electric equipment tha t can become "alive'' through
failure o f insulation or by contact with energized
parts shall be grounded by methods approved by an
authorized representative of the Secretary.
The cathead also has an internal grounding device which
normally prevents an employee from being shocked or electrocuted
if the cable insulation were to break (Tr. 14-15) . There is no
evidence that the internal grounding device was defective when
Gamblin issued the instant citation. Both Gamblin and Alan
Perks, Respondent's chief maintenance engineer, characterized the
external ground as a "back-up" device (Tr. 72-74, 83) .
As Respondent concedes that the standard was violated, the
only issues before me are whether the violation was S&S and the
assessment of an appropriate civil penalty. The Commission test
for "S&S," as set forth in Mathies Coal Co . , supra, is 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) t he. 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.

812

The only evidence introduced by the Secretary with regard
to the third step of the Mathies test is the purely conclusory
opinion of Inspector Gamblin that it is reaso~ably likely that
the cited condition would lead to injury if the mining process
continued (Tr . 17-18, 26).
I find this insufficient to establish that the cited violation was "S&S."
Moreover, I conclude from the testimony of Alan Perks,
Respondent's chief maintenance engineer, · that it is not reasonably likely that failure to connect the two wires of the
external ground will result in injury.
This is so for
two reasons.
First, the normal practice is to turn off the
circuit breaker on the transformer before disconnecting the
cathead (Tr. 88). Secondly, even if a miner disconnects the
cathead first, the internal grounding mechanism is likely to
shut off the power if the cathead becomes energized {Tr. 83).
While it is possible for a miner to be electrocuted due to
failure to connect the external ground wires, several things
would have to go wrong for this to happen . First, a miner would
have to disconnect the cathead before shutting off the circuit
breaker. Secondly, there would have to be a short in the
electrical cable, and third, the internal grounding mechanism
would have to be defective.
None of these conditions were shown
to have existed at the time of the instant citation. Therefore,
I am not persuaded that it is reasonably likely that they would
have all occurred at Respondent's mine in the continued course
of normal mining operations. Therefore I affirm the citation
as a non-S&S violation and assess a $50 civil penalty.
Citation No. 3417315: The Unmarked Cathead
During his inspection of December 14, 1992, Gamblin noticed
two catheads affixing cables from continuous mining machines to
a transformer.
One cathead was marked to indicate the machine
to which its cable was attached, the other was not so marked
(Tr. 36, 42).
Inspector Gamblin issued Respondent a citation
alleging an ~s&S'' violation of 30 C.F .R. § 75 . 601.
This standard
provides:

813

. . . Disconnecting devices used to disconnect power
from trailing cables shall be plainly marked a~d
identified and such devices shall be equipped or
designed in such a manner that it can be determined
by visual observation that the power is disconnected.
Gamblin believes it is reasonably likely that a miner would
work on a continuous mining machine which he or she mistakenly
thought was de-energized due to the lack of identification markings on the one cathead (Tr. 40, 50, 56, 60-63). Respondent
contends that injury was unlikely for several reasons.
First of all, a miner could determine which cathead went to
which continuous mining machine by process of elimination--since
one cathead was properly marked (Tr. 52). Secondly, one of the
catheads observed by Gamblin was significantly cleaner than the
other. Respondent had two continuous miners in the section
because it was in the process of replacing one with the other,
which had been recently rebuilt (Tr. 89). The cathead belonging
to the rebuilt machine was much cleaner than the other cathead
(Tr. 106-07) . Respondent argues that it would be obvious that
the cleaner cathead belonged to the rebuilt miner.
Further, Respondent argues, the normal practice for an
employee when disconnecting a cathead is to follow the continuous
miner's cable back to the transformer to insure that he or she
disconnects the right one (Tr. 90). Moreover, Peabody's company
policy is that an employee performing work on a continuous mining
machine must disconnect and lock out the power to the machine
himself or herself (Tr. 109).
As with the prior citation, the only issue before me is
whether the violation was S&S. The Commission, in the instant
case, indicated that United States Steel Mining Co .. Inc.,
6 FMSHRC 1573, 1574 (July 1984) stands for the proposition that
while S&S determinations are not limited to conditions existing
at the time of the citation, they should not take into consideration conditions at other mines or over extended periods of time.
In the instant case, · the older continuous miner would only
be in the section with the rebuilt miner for two or three days
until Peabody was satisfied that the rebuilt machine was working
properly (Tr. 92, 103). Given this fact, and the other factors

814

mentioned by Respondent, I conclude that an injury was not
reasonably likely to occur due to the lack of markings on
the one cathead.
I therefore affirm the citation as a non-S&S
violation and assess a $50 civil penalty .
ORDER

Citation Nos. 3417313 and 3417315 are affirmed as non-S&S
violations . Considering the statutory factors enumerated in
section llO(i) of the Act, I assess a $50 civil penalty for
each of the violations. These penalties shall be paid within
30 days of this decision.

Arthur J. Amchan
Administrative Law Judge
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Carl B. Boyd, Jr., Esq., Meyer, Hutchinson, Haynes & Boyd,
120 N. Ingram St., Suite A, Henderson, KY 42420 (Certified Mail)

/lh

815

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

MAY 2 6 1995
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 93-376-M
A.C. No . 04-02710-05509

v.

Docket No . WEST 93-380-M
A.C. No. 04-02710-05510

ARCATA READIMIX,
Respondent

Arcata Pit & Mill
DECISION

Appearances:

Jeanne M. Colby, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California, for Petitioner;
William J. O'Neill, President, Arcata Readimix,
Arcata, California, for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Arcata
Readimix ("Arcata"), 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 six violations of the Secretary's
safety standards. For the reasons set forth below, I affirm the
citations and assess civil penalties in the amount of $170.00.
A hearing was held in these cases before Administrative Law
Judge John J. Morris, i n Eureka, California. The parties
presented testimony and documentary evidence, but waived posthearing briefs. These cases were reassigned to me on April 25 ,
1995, for an appropriate resolution.

I.

DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Preliminary Matters
The Arcata Pit & Mill is a small, sand and gravel pit in
Humboldt County, California. The citations that are the subject
of these proceedings were issued at Arcata's crushing and screening plant (the "plant") by MSHA Inspector Dennis Harsh on February 2 and 3, 1993.
Arcata maintains that its plant was shut down for the winter
at the time of the inspection. Lawrence Frank, a former super-

816

visor at the plant, testified that the main power center for the
plant was at a "remote shack" that was locked, and that only
three people had a key to this shack: William O'Neill, the
president, Jim O'Neill, the president's brother, and Mr. Frank.
(Tr. 38-39; 47-48; Ex. R-2). He further stated that a lock or a
lock-out sign was on the ·electrical switch box inside the shack.
Id. He further testified that the plant was "in a state of semidisassembly.11
(Tr. 40). Mr. Frank stated that during the shutdown, equipment at the plant was being taken apart and serviced
with the guards removed, "so when things pick up in the spring,
we don't have to deal with that. 11
(Tr. 41). He stated that the
plant had not been in production since about December 1992.
(Tr.
42-43). This testimony was supported by the testimony of William
O'Neill.
(Tr. 53). Mr. O'Neill stated that the plant was shut
down and that he thought everyone knew that it was shut down,
including Inspector Harsh.
(Tr. 53-55). He testified that all
of the conditions observed by the inspector would have been
corrected before the plant was put into operation in the spring.
(Tr. 53-55; 70-71). On that basis, Arcata argues that the
citations should be vacated.
Inspector Ha~sh testified that, although the plant was not
operating at the time of the inspection, he believed that the
shutdown was only temporary. He testified that he was told by
Arcata employees that the "plant was down for repairs, clean-up,
and (a shaker) screen change."
(Tr. 23). Inspector Harsh
testified that these types of repairs are frequently made at
crushing and screening plants.
(Tr. 65-66). He believed that
"it was just a temporary shutdown for these things which are
necessary from time to time." Id.
In addition, he stated that
no Arcata employee advised him, at the time of the inspection or
during the close-out conference, that the plant was shut down for
the winter. (Tr. 28, 65-66).
It was his understanding that the
"plant would be restarted or stopped as product was needed at any
time."
(Tr. 66). Inspector Harsh a l so did not see any evidence
that Arcata was performing a major renovation of the plant or
that any equipment was being dismantled or torn apart for
service.
(Tr. 63-64). Finally, he testified that the power had
not been disconnected from the plant and that all that was
required to start the plant was to "throw" a few switches.
(Tr .
64) .
I credit the testimony of Inspector Harsh. I believe that
if the plant was totally shut down for the entire winter, someone
from Arcata would have advised Inspector Harsh of that fact
during his inspection or the close-out conference. Mr. O'Neill
testified that he saw Inspector Harsh "writing f or two hours"
immediately following the inspection, but that he did not
"anticipate any type of problem [ because] we were shut down."
(Tr. 56-57). Arcata's witnesses did not offer any explanation as
to why the inspector was not notified of the shutdown except that
"everybody" knew about it and the plant was "pretty quiet." Id.

817

Upon receiving the citations, one would expect a mine operator to
say to the issuing inspector, "Wait a minute, you shouldn't issue
us any citations because we are shut down for the winter and are
servicing our equipment." Apparently, this issue was not raised
by Arcata until it filed its answer in these proceedings. As
stated above, Inspector Harsh testified that he did not see any
evidence that the plant was on a long term shutdown or that
equipment was being torn apart and repaired. He stated that he
would not issue citations on equipment that was torn apart.
(Tr.
63) .
Inspector Harsh testified that the plant could have been
started by throwing a few electrical switches. Mr. O'Neill did
not seriously dispute that testimony.
(Tr. 57-58). Thus, even
if one assumes that the plant had not been operating for some
time, it could have been restarted very quickly if more product
was needed.
In addition, equipment could have been operated for
testing purposes during the repair process and Arcata's employees
could have been exposed to the conditions cited by the inspector.
Thus, I conclude that the citations issued by Inspector Harsh
should not be vacated on the basis that the plant was shut down
or that the conditions cited would have been corrected before the
plant was placed in production.
B.

Docket No. WEST 93-376-M

1. Citation No. 3913936 alleges that a bare electrical
conductor was within two inches of a metal start/stop switch in
the shaker power room. The citation states that the power cable
had been pulled from the fitting in the bottom of the switch,
exposing the electrical conductors. Bare wire was exposed in one
220 volt conductor. The safety standard cited, 30 C.F.R. §
56 . 12030, provides that "when a potentially dangerous condition
is found it shall be corrected before equipment or wiring is
energized."
There is no dispute that the conditions observed by the
inspector existed. Inspector Harsh estimated that someone enters
the shaker power room to turn on or off the switch about twice a
day.
(Tr. 19-20). He said that the condition created· a shock
and electrocution hazard because the bare wire was about two
inches from the switch.
(Tr. 20-21) He determined that it was
reasonably likely that someone would contact the exposed wire and
suffer a severe shock or burns. Id. He further stated that the
Arcata employee who accompanied him on the inspection, Earl
Norris, indicated that the bare wire could seriously hurt
someone. 1 (Tr. 18-19, 22).
Arcata contends that Mr. Norris, a loader operator, was
not authorized to be its walk around representative during the
inspection. William O'Neill, Mr. Frank and Jim O'Neill were not

818

Mr. Frank testified that he pulled on electrical cables
periodically to determine if they are firmly attached.
(Tr. 39)_.~
He believes that he exposed the wire when performing this test·-a t!;..
the cited location.
(Tr. 39-40). He further testified that he ~·
made a notation to have it repaired before the plant resumed
operation. Id.
Based on the record as a whole, I find that the Secretary
established a violation of the safety standard.
I also find that
the violation was of a significant and substantial nature ("S&S")
because there was a reasonable likelihood that the hazard contributed to would result in an injury of a reasonably serious
nature.
Mathies coal Co., 6 FMSHRC 1, 3-4 (January 1994).
I
find that the violation was serious.
2. Citation No. 3913937 alleges that the cover for the
splice box on top of the cone crusher feed belt was loose and
dislodged, exposing the electrical conductors to weather conditions and mechanical damage. The conductors were not damaged.
The safety standard cited, 30 C.F.R. § 56.12032, provides that
"inspection and. cover plates on electrical equipment and junction
boxes shall be k.e pt in place at all times except during testing
or repairs."
There is no dispute that the conditions observed by the
inspector existed. The inspector testified that "the cover had
worked its way loose and was hanging there by one screw with the
box wide open, exposing the inner conductors ... to any kind of
adverse weather condition." (Tr. 14-15). Mr. Frank testified
that, more than likely, the cover had been removed intentionally
during the shutdown when equipment was being repaired, and that
the cover is always in place during operation.
(Tr. 39-40).
Based on this evidence, I find that the Secretary established a violation of the safety standard. There was no evidence
that the cover was off because the subject equipment was being
repaired or tested.
I agree with the inspector that the violation was not S&S. The conductors and the splice were not
damaged.
In addition, there was no evidence that miners were
likely to be in the immediate area or that the metal splice box
would become energized as a result of the violation.
Accordingly, I find that the violation was not serious.
3. Citation No. 3913939 alleges that there was no guard
covering the pinch point on the smooth tail pulley of the cone
available at the time of the inspection. Apparently, Mr. Norris
accompanied the inspector because nobody else was available.
This issue is not relevant and I have based my decision on the
testimony of the witnesses, not statements made by Mr. Norris to
Inspector Harsh.

819

crusher feed belt. It alleges that the exposed pinch point was
adjacent to the screen portion of the walkway, about 16 inches
above the walkway and about two feet from the inside edge of the
walkway. The citation states that the pulley was in a remote
area of the plant, but was still readily accessible. The safety
standard cited, 30 C.F.R. § 56.14107, provides, in pertinent
part, that "moving machine parts shall be guarded to protect persons from contacting .. . drive, head, and takeup pulleys ... and
similar moving parts that can cause injury."
There is no dispute that the conditions observed by the
inspector existed. Mr. O'Neill stated that the guards were off
so that the area could be cleaned out and the bearings underneath
the pulley could be checked.
(Tr. 30-31). Mr. Frank testified
that shaker screens were being repaired and that welders from a
contractor were coming to repair supports for the shaker screens
underneath the shaker plant.
(Tr. 40). He further stated that
aggregate had accumulated under the plant and the guards were
removed to clear the area out.
(Tr. 40-41). He testified that
during the shutdown, all of the bearings were inspected and
pulleys were pulled apart as part of Arcata's preventive maintenance program.
Id. He testified that everything would have
been replaced, including the guards, when "things pick[ed] up in
the spring."
(Tr. 41).
Based on the record as a whole, I find that the Secretary
established a violation of the safety standard. As stated above,
Inspector Harsh did not see any evidence that the equipment he
inspected was in the process of being repaired or "pulled apart."
There is no dispute that the pinch point was not guarded.
It
could have been operated during the repair process without the
guard.
I agree with the inspector that the violation was not
S&s. The parties concede that the pinch point was in a remote
area of the plant. I find that the violation was not serious.
B.

Docket No. WEST 93-376-M

1. Citation No. 3913935 alleges that the fire extinguisher
for the crushing plant had not had the required yearly maintenance check since December 1991. The citation also states that
the extinguisher appeared to be operational and fully charged.
The safety standard cited, 30 C.F.R . § 56.420l(a) (2), provides,
in pertinent part, that "at least 'once every twelve months, maintenance checks shall be made of [ each fire extinguisher] to
determine that the fire extinguisher will operate effectively."
There is no dispute that the maintenance check had not been
made.
Inspector Harsh testified that the inspection tag on the
extinguisher had not been initialed during the previous 12
months.
(Tr. 16-17). He further stated that the extinguisher
appeared to be operational and fully charged.
Id. Mr. Frank
testified that Arcata had a contract with a fire extinguisher
820

service company to conduct the annual inspection but that it had
not been inspected because the son of the contractor _ had recently
died.
(Tr. 37-38). He further stated that the inspection was
only two months overdue and that Arcata has entered into a new
service contract with another company.
Id.
Based on this evidence, I find that the Secretary established a violation of the safety standard. The Mine Act is a
strict liability statute and a mine operator is legally responsible for any violation that occurs at its mine.
I agree with
the inspector that the violation was not S&S. since it appears
that the extinguisher was in working condition, the violation was
technical in nature and was not serious.
2. citation No. 3913938 alleges that there was no guard
covering the spoke-type pulley and drive belt of the No. 4 conveyor belt. It alleges that the exposed pinch point was about 64
inches above and adjacent to the wooden walkway on the west side
of the shaker screen. The citation states that the amount of
exposure could not be established, but that the pulley was accessible. The safety standard cited, 30 C.F.R. § 56.14107, provides, in pertine.nt part, that "moving machine parts shall be
guarded to protect persons from contacting ... drive, head, and
takeup pulleys ... and similar moving parts that can cause
injury."
There is no dispute that the conditions observed by the
inspector existed. Inspector Harsh testified that he observed an
unguarded V-belt pulley within reach of and no more than seven
feet above a walkway.
(Tr. 11). He stated that an injury was
unlikely because the pinch point was about 64 inches above the
walkway.
Id. Mr. Frank testified that during the shutdown, all
of the bearings were inspected and pulleys were pulled apart as
part of Arcata's preventive maintenance program.
(Tr. 40). He
testified that everything would have been replaced, including the
guards, when 11 things pick(ed] up in the spring."
(Tr . 41).
Based on the record as a whole, I find that the Secretary
established a violation of the safety standard. As stated above,
Inspector Harsh did not see any evidence that the equipment he
inspected was in the process of being repaired or "pulled apart."
There is no dispute that the pinch point was not guarded.
It
could have been operated during the repair process without the
guard.
I agree with the inspector that the violation was not
S&S. Given the height of the pinch point and the fact the inspector could not establish the amount of the exposure, I find
that the violation was not serious.
•

•

•

I

3 . Citation No. 3913940 alleges that continuity and resistance testing of the electrical grounding system had not been
conducted since September 1991 . The citation also stated that
the weather in the area is highly corrosive to metal and that

821

corrosion is one of the factors that can render the electrical
grounding system ineffective. The safety standard cited, 30
C.F.R. § 56.12028, provides, i n pertinent part, that "continuity
and resistance of grounding systems shall be tested immediately
after installation . .. and annually thereafter.'' A record of the
tests is required to be kept.
There is no dispute that the required test had not been
made.
Inspector Harsh testified that when he uncovered a portion
of the grounding electrode, it showed signs of heavy corrosion.
(Tr. 25). Although the inspector marked the citation as S&S, he
stated at the hearing that it should not be considered S&S because he did not perform a test to see if the integrity of the
grounding system had been compromised by the corrosion.
(Tr. 26,
see also 7). Mr. Frank testified that Arcata must depend upon
its contractor to conduct the inspections on an annual basis.
(Tr. 41). Because the contractor was four months late in conducting the inspection/ Arcata changed contractors.
Id.
Based on this evidence, I find that the Secretary established a violation of the safety standard. The Mine Act is a
strict liability statute ~nd a mine operator is legally responsible for any violation that occurs at its mine.
I agree
that the violation was not S&S. The violation was serious because, without conducting the test, Arcata did not know if its
grounding system would protect its employees.
II.

Civil Penalty Assessments

Section llO(i) of the Mine Act, 30 u.s.c. § 820(i), sets out
six criteria to be considered in determining the appropriate
civil penalty . I fi nd that Arcata was issued four citations in
the 24 months preceding the inspection in this case .
(Tr. 6).
I
also find that Arcata is a small operator, employing about 23
people, with a~out 19,350 man-hours worked over the previous
year.
(Tr. 6, 44). I also find that the civil penalties assessed in this decision would not affect Arcata's ability to continue in business. The conditions cited by the inspector were
all timely abated.
I finq that Arcata is concerned about the
safety of its miners and made good faith efforts to comply with
MSHA's safety standards.
I also find that Arcata's negligence was very low with
respect to each violation. As stated above, the Mine Act is a
strict liability statute. Asarco, Inc. v. FMSHRC, 868 F.2d 1195
(10th Cir. 1989 ) . A citation issued by MSHA for a violation of a
safety standard must be affirmed if the facts show that the standard was violated, even if the mine operator was not negligent.
The degree of the mine operator's negligence, however, is an
important factor in determining the civil penalty.
I find that
Arcata was only slightly negligent with respect to the violations
discussed above because its managers believed, in good faith,

822

that these conditions did not need to be corrected until it
resumed production and there is no evidence that these conditions
existed while the plant was operating, even for testing purposes.
Based on the criteria in section llO(i) of the Mine Act, 30

u.s.c. § 820(il, I assess the following civil penalties, as discussed above:
Citation Nos.
3913936
3913937
3913939
3913935
3913938
3913940

30 C.F.R. §

Assessed
Penalty

56.12030
56.12032
56.14107
56.420l(a) (2)
56.14107
56.12028

$60.00
20.00
20.00
10.00
20.00
40.00

Total Penalty

$170.00

III.

ORDER

Accordingly, the citations listed above are AFFIRMED, and
Arcata Readimix 'is ORDERED TO PAY the Secretary of Labor the sum
of $170.00 within 30 days of the date of this decision .

•..

&~~,,.

Richard W. Manning
Administrative Law Judge

Distribution:
Jeanne M. Colby, Esq . , Office of the Solicitor, U.S . Department
of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-2999 (Certified Mail)
William J. O'Neill, President, ARCATA READIMIX, P.O. Box 4657,
Arcata, CA 95521 (Certified Mail)
RWM

823

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

MAY 3 11995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF MARK BEYER,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEST 95-221-D
A . C. No. DENV CD 94-27
Jacobs Ranch Mine
Mine ID 48-00997

KERR-McGEE COAL CORPORATION,
Respondent
ORPER OF DISMISSAL

Before:

Judge Weisberger

The Secretary's Motion to Dismiss is granted based on the
assertions set forth in the Motion.
It is ORDERED that the hearing in this case scheduled for
August 8, 1995, is cancelled. It is further ORDERED that this
case be DISMISSED .

rfL ~

Avram Weisberger
Administrative Law Judge
Distribution:

Kristi Floyd, Esq., Office of the Solicitor, U. S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Charles W. Sherman, Esq., Sherm~n & Howard, L . L . C., First
Interstate Tower North, 633 17th Street, Suite 3000, De nve r,
CO 80202
(Certified Mail)
/ml
824

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0 .C.

20006

Hay 2. 1995

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

Respondent

..••
.
:
.:

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-64-M
A. C. No. 45-02518-05517
Harbor Rock Portable

ORDER ACCEPTING RESPONSE
DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before:

Judge Merlin

This case is before me upon a petition for assessment of
civil penalties under section 1~5(d) of the Federal Mine Safety
and Health Act of' 1977.
The parties have filed a joint motion to approve settlements
for the two violations in this case. A reduction in the penal•
ties from $3,000 to $959 is proposed. On March 16, 1995, an
order was issued disapproving the settlement and directing the
parties to file additional information to support their motion.
on April 14, 1995, the parties filed a second motion to approve
settlement.
citation No. 4341585 was issued for a violation of section
103(a) of the Mine Act, 30 u.s.c. § 813(a), because the operator•s representative ordered the inspector off the mine property.
The originally assessed penalty was $1,000 and the proposed
settlement is $320. The motion filed by the parties fully sets
forth the circumstances under which the operator•s representative
acted . Clearly, the representative violated the law. However,
as set forth in the . motion there now have been amicable and
productive discussions between the parties and no recurrence. I
am told that the parties recognize the statutory right of MSHA to
conduct inspections without delay or interference. Based on
these representations I will approve the motion. It goes without
saying, I do not expect repetition of such behavior from any
representative of the operator.
Citation No. 4341658 was issued as a 104(d) (1) citation for
a violation of 30 C.F.R. § 56.11012 because a railing, barrier or
cover was not in place at the jaw crusher which was near the
access into the crusher control booth. The originally assessed
penalty was $2,000 and the proposed settlement is $639. The
parties advise that the penalty has been amended on the basis of

825

the operator•s present financial condition. I accept the parties• representations and conclude that the settlement is
appropriate. I further note that the operator is small in size
and promptly abated the v iolation.
.
In light of the foregoing, it is ORDERED that the settlement motion filed on April 14 is ACCEPTED as a response to the
March 16 order.
It is further ORDERED that the recommended settlements be
APPROVED.
It is further ORDERED that the operator PAY $959 within 30
days of the date of this dec i sion .

Paul Merlin
Chief Administrative Law Judge
Distribution :
William w. Kates, Esq., Office of the Solicitor, u. s. Department
of Labor, 1111 Third Avenue, suite 945, Seattle, WA 98101-3212
Mr. Tim Bond, secretary, Harbor Rock Inc., Box 246, south Bend,
WA 98586

/gl

826

ADMINISTRATIVE LAW JUDGE ORDERS

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

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

g 1995
CIVIL PENALTY PROCEEDING
Docke t No. WEVA 94 - 360
A. C. No. 46-06750-0355 1

v.

Peats Branch No. 3
OLD HI CKORY COAL COMPANY,
Respondent
ORDER DISAPPROVING SETTLEMENT AGREEMENT
Before:

Judge Hodgdon

This case is before me on a petition for assessment of civil
penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d). The Secretary, by
counsel, has filed a motion to approve a settlement agreement.
A reduction in penalty from $10,000.00 to $5,500.00 is proposed.
In addition, both orders in the case are to be modified from
104(d)2) orders, 30 U.S . C. § 814(d) (2), to 104(a) citations,
30 U.S.C. § 814(a), by deleting the "unwarrantable failure"
designations and reducing the degree of negligence from 11 high 11 to
"moderate."
Order No. 4184405 alleges a violation of Section 77.404(a)
of the Regulations, 30 C . F.R. § 77.404(a), because five safety
defects were found on the cut rock truck. Two of these
conditions had been reported on previous pre-shift inspection
records.
T~e agreement states that evidence would not support a
finding of "unwarrantable failure" because:
Although the brake lights and handrails had been
reported on the pre-shift examination records within a
week of the issuance of the order, none of the safety
defects were reported on either th: day the order was
issued or the preceding day. Consequently, the
Respondent may have reasonably concluded that the brake
827

lights and handrails had been repaired before the order
was issued. Although the operator has a duty to ensure
that reported hazards are corrected, there is no
indication that the failure to correct the reported
hazards, or the failure to d e tect the additional,
unreported hazards, was due to more than ordinary
negligence.
Order No . 4184413 is for a violation of Section 77.1001,
30 C . F.R. § 77 . 1001, because loose, unconfined material,
consisting of large rocks which were shot and broken up, was
observed in the highwall area where equipment was working. The
agreement avers that the Secretary could not establish that this
violation was due to the Respondent's "unwarrantable failure''
because 11 [a]lthough rocks were present in the highwall area, they
were imbedded ih the mud seam. Consequently, the operator's
failure to take action in light of this condition did not
constitute aggravated conduct."
Commission Rule 3l(b) (3), 29 C . F.R . § 2700 . 31(b} (3),
requires that a motion to approve a settlement include "[f]acts
in support of the penalty agreed to by the parties." With
respect to the first order, rather than leading to the conclusion
that the violation did not resu lt from the Respondent's
"unwarrantable failure," the facts set out create a strong
inference that the respondent was indifferent or exhibited a
serious lack of reasonable care. The facts set out concerning
the second order are simply insufficient to reach a conclusion
one way or the other concerning "unwarrantable failure . "
The Mine Act was passed with the intention that the
Commission "assure that the public interest is adequately
protected before approval of any .reduction in penalties . " S.
Rep. No. 95-181, 95th Cong., 1st Sess. 45 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of
1977, at 633 (1978).
In this connection, it is the judge's
independent responsibility to determine the appropriate amount of
penalty, in accordance with the six criteria set out in Section

828

Sellersburg Stone Company
v. Federal Mine Safety and Health Revie~ Commission, 736 F.2d

llO{i) of the Act, 30 U.S.C. § 820(i).
1147, 1151 (7th Cir. 1984).

Based on the statements provided, I have no way of making
such a determination in this case.
Consequently, having
considered the representations and documentation submitted, I am
unable to approve the proffered settlement.

ORDER

Accordingly, it is ORDERED that the motion for approval of
settlement is DENIED. The parties have 15 days from the date of
this order to submit additional information to support the motion
for settlement. Failure to submit additional information, or to
resubmit a new agreement, within the time provided will result in
the case being rescheduled for hearing.

'1~~
T: Todd H~'\
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)
David J. Hardy, Esq., Linden R. Evans, Esq., Jackson & Kelly,
1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322
(Certified Mail)
/lbk

829

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

May 9, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
I

CIVIL PENALTY PROCEEDING
Docket No.
WEST 94-637-M
A. C. No.
35-03123-05514
Cedar Creek Quarries

CEDAR CREEK QUARRIES, INC.,
Respondent

ORDER DISAPPROVING SETTLEMENT AGREEMENT
Before:

Judge Hodgdon

This case is before me on a petition for assessment of civil
penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d).
The parties have filed a
motion to approve a settlement agreement . 1 The agreement
provides that the proposed penalty of $2,000.00 will be
"withdrawn. 11
Citation No. 3923238 alleges a violation of Section 103(a)
of the Act, 30 U.S.C . § 813(a), because, according to the motion,
the Respondent's president:
refused to be interviewed by an MSHA special
investigator concerning a§ 110(c) violation,
(30 U.S . C . § 820(c)], refused to allow his foreman to
be interviewed, and refused to provide the names of
employees who were present at the quarry on the day
that an earlier citation - which was the subject of the
investigation - was issued.

1

This case was scheduled for hearing on April 27, 1995, but
the hearing was canceled when the parties advised that the case
had been settled.
830

Apparently as mitigation, the motion relates that after
contacting his attorney, arrangements were made for the
investigator to return to the mine 13 days later, at which time
the president and his employees were interviewed. The motion
further recounts that the company has cooperated during
subsequent inspections, that the president understands that MSHA
is required to inspect all surf ace mines twice a year and that
MSHA inspectors and investigators have a right to enter the mine
and mine offices wi t hout a warrant for the purpose of conducting
inspections and investigations.
This motion must be disapproved for two reasons . First,
Commission Rule 3l(b) (3), 29 C . F . R. § 2700 . 3 l (b) (3), requires
that a motion to approve a settlement include "[f]acts in support
of the penalty agreed to by the parties." While the facts
provided in this motion might provide support for reducing the
proposed penalty, they certainly are insufficient to support
doing away with .it entirely.
Secondly, and more importantly, Section llO(a) of the Act,
30 U.S.C . § 820(a), provides that "(t]he operator of a coal or
other mine in which a violation occurs of a mandatory health or
safety standard or who violates any other provision of this Act,
shall be assessed a civil penalty by the Secretary . . . . 11
Consequently, if there is a violation, there must be a civil
penalty.
Island Creek Coal Co . , 2 FMSHRC 279, 280 (February
1980).
It certainly appears that there was a violation in this
case.
See U.S. Steel Corp., 6 FMSHRC 1423, 1433 (June 1984).
Therefore, there has to be some civil penalty, it cannot be
"withdrawn . "
The Mine Act was passed with the intention that the
Commission "assure that the public interest is adequately
protected before approval of any reduction in penalties."
S . Rep. No. 95-181, 95th Cong., 1st Sess. 45 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of
1977, at 633 (1978).
In this connection, it is the judge's
independent responsibility to determine the appropriate amount of
penalty, in accordance with the six criteria set out in Section
llO(i) of the Act, 30 U.S.C. § 820(i) . Sellersburg Stone Company
v. Federal Mine Safety and Health Review Commission, 736 F . 2d
1147, 1151 (7th Cir . 1984).

831

Based o n the stateme n ts p rovi ded, I have no way of making
suc h a determination in thi s case . Consequently, having
cons i dered the representations a nd d ocumentat i on submitted, I am
una b l e to approve the proffere d sett l ement .

ORDER
Accordingly, it is ORDERED that the motion for approval of
settlement is DENIED. The parties have 15 days from the date of
this order to submit an agreement that conforms to the Act and
the Regulations, either by providing for a suitable civil penalty
or, if the Secretary deems it appropriate, vacating the citation.
Failure to resubmit a new agreement within the time provided will
result in the case being rescheduled for hearing.

J..o~/J.U

T . Todd H~;;;lc~~
Administrat ive Law Judge
(703) 756-4570

Distribution:
Matthew L. Vadnal, Esq., Office of the Solicitor, U.S . Department
of Labor, 1111 Third Avenue, Suite 945, Seattle , WA 98101
(Certified Mail)
'
Kurt Carstens , Esq., Litchfield & Carsten s, 407 North Coast
Highway, P.O. Box 1730, Newport, OR 97365 (Certified Mail)

'

/lbk

832

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW. 6TH FLOOR
WASHINGTON, 0 .C.

20006

May 16 1 1995

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

..
.
.
0

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-957
A. C. No. 15-07986-03665
Darby Mine

v.
JERICOL MINING INCORPORATED,
Respondent

ORDER DISAPPROVING SETTLEMENT
SECOND ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is before me upon a petition for assessment of
civil penalties under section lOS(d) of the Federal Mine Safety
and Health Act of 1977 .
on January 9, 1995, the parties filed a joint motion to
approve settlements for the two violations in this case. A
reduction in the penalties from $5,700 to $2,298 was proposed.
on February 7, 1995, an order was issued disapproving the settlement recommendations and directing the parties to submit additional information to support their motion. on April 18, 1995,
the parties filed a second settlement motion.
In the order of disapproval the parties were told that it is
the judge's responsibility to approve a penalty amount which
accords with the six criteria set forth in section llO(i) of the
Act, 30 u.s.c. § 820(i) and that any proposed penalty reduction
must satisfy those standards. The first settlement motion was
disapproved because the parties merely gave their respective
positions and set forth unresolved evidentiary conflicts.
In the latest proposed settlement, each party acknowledges
that for both violations the other would present substantial
evidence at a hearing to support .their differing positions with
respect to the level of negligence. And they set forth conflicting positions with respect to gravity. The parties say that in
light of these circumstances they have reached a "compromise"
whereby the citations would remain as written, but the penalty
amounts would be greatly reduced. on this basis they would have
me approve a 70% reduction in the originally assessed penalty for
Citation 4249131 from $4,200 to $1,298. The violation was an
inoperative methane monitor due to bridging out and was rated as
significant and substantial with high negligence~ Similarly, a
reduction of 33113% is sought for Citation 4249190 from $1,500 to
$1,000. The violation was an inadequately supported roof due to
833

loose ribs and was rated as significant and substantial with high
negligence.
The parties want it both ways. They would have the original
assessment greatly reduced, but have the findings in the citation
remain the way they are. What the parties apparently fail to
appreciate is that the findings in the citation they want to
leave unchanged, are the same as much of the criteria in section
llO(i) that I am required to observe in approving a settlement.
Under the circumstances the recommended settlements are too low
for the level of the charges made and provide no basis to reduce
the original assessment. For these reasons I cannot approve this
proposal which plainly contravenes the Act.
In light of the foregoing, it is ORDERED that the amended
settlement motion be DENIED.
It is further ORDERED that within 30 days of the date of
this order the parties submit appropriate information that
conforms to the statute to support their settlement motion.
Otherwise, this case will be set for hearing.

-=-~\:----\
Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Anne T. Knauff, Esq., Office of the Solicitor, u.s. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215
Mr. Jim Baker, General Superintendent, Jericol Mining Inc.,
General Delivery, Holmes Mill, KY 40843
Douglas White, Esq., counsel, Trial Litigation, Office of the
Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
/gl

834

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMI NISTRATI VE LAWJUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PI KE
FALLS CHURCH, VIRGINIA 22041

MAY l 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 94-623-M
A.C. No. 45-03184-05528-A
Docket No. WEST 94-624-M
A . C. No. 45-03184-05529-A

EUGENE RUSSELL,
ERVIN E. NICHOLS,
JAMES M. DODD,
REYNOLD E . CHANNER, and
SCOTT FURMAN, ·employed by
ECHO BAY MINERALS COMPANY,
Respondents

Docket No. WEST 94 - 625-M
A.C. No. 45-03184-05530-A
Docket No. WEST 94-626-M
A.C. No. 45-03184-05531-A
Docket No. WEST 94-627-M
A.C. No . 45-03184-05532-A
Overlook Mine

ORDER DENYING RESPONDENTS' MOTION TO CONPUCT
PISCOVERY WITH REGARD TO THE TIMELINES S OF THE ISSUANCE
OF THE CIVIL PENALTY NOTICES ; ORDER DENYI NG RESPONDENTS'
MOTION FOR CERTIFI CATION OF INTERLOCUTORY REVIEW
Respondents' have filed a motion requesting entry of an
order allowing them to conduct discovery with regard to the
reasons for the 24 to 27 month interval between the citation
and order issued to their employer and their notification by
MSHA that they were being assessed civil penalties pursuant to
section llO(c) of the Act.
In t h e alternative, Respondents
h ave moved that I certify interlocutory review of my March 24,
1 995, order denying Respondents' motion to dismiss/motion for
summary decision on this issue .
I deny both motions.
In my March 24, 1995, order I concluded that there is no
basis for dismissing the instant penalties due t o such a time
lag without a showing by Respondents that they have been

835

materially prejudiced by the delay in proposing the civil
penalties.
If a Respondent in a civil penalty proceeding
establishes such prejudice, then the Commission will balance
the prejudice to the Respondent and the reasons for the delay,
and may, in some cases, vacate the penalty, Salt Lake County
Road Department. 3 FMSHRC 1714 (July 1981).
In these cases, Respondents have not even alleged facts
which would establish material prejudice.
In my March 24, 1995,
order, however, I offered Respondents an opportunity to establish
material prejudice at the hearing on the merits of these proposed
penalties.
If the Respondents succeed in doing so, I am prepared
to weigh this prejudice against the reasons for the delay set
forth in the aff i davits submitted by the Secretary in response
to Respondents' motion to dismiss.
I will not, however, allow Respondents, either in discovery
or at hearing, to inquire further as to the reasons for the
delay.
For example, I believe it would be entirely inappropriate
to allow Respondents to depose attorneys in the Off ice of the
Solicitor as to why the civil penalties in these cases were
issued 14-1/2 months after receipt of the MSHA reports and files.
If Respondents could establish that the Solicitor had these
files longer than Mr. White of that office states in his affidavit, it would not materially influence the outcome of this
case.
If Respondents could establish that the Solicitor's
attorneys could have worked longer hours or devoted more time
to this matter, rather than others, it would be similarly
immaterial. Further, I view Commission review of such internal
procedures of the Secretary to be inappropriate as a general
matter.
Commission Rule 56(b) limits the scope of discovery to
relevant, non-privileged matter that is admissible evidence or
appears likely to lead to the discovery of admissible evidence .
Respondents have not made a showing that its requested discovery
of Labor Department personnel with regard to the delay in
assessing the instant penalties meets this standard.

836

In so concluding, I note Rule 403 of the Federal Rules of
Evidence allows exclusion of relevant evidence if its probative
value is substantially outweighed by considerations of confusion
of the issues, delay, or waste of time.
Without a showing as to
what Respondents hope to learn in the requested discovery, I
suspect that the evidence they seek may well fit the description
of excludable evidence in Rule 403.
RESPONDENT'S HAVE NOT SATISFIED THE CRITERIA
FOR INTERLOCUTORY REVIEW
Commission Rule 76 states that interlocutory review cannot
be granted unless the judge has certified that his ruling
involves a controlling question of law and that immediate review
will materially advance the final disposition of the proceeding.
In this case, g rant ing of interlocutory review will likely delay
final disposition of these proceedings.
These matters should be
disposed of on t~e merits at the hearing now scheduled to begin
on July ll, 1995.
Consideration of evidence of internal procedures of the Secretary will likely delay reso l ution of the
merits, and is, to my mind, totally irrelevant--particularly in
view of the facts that Respondents have not even made a facial
showing of material prejudice.
For the reasons stated herein, Respondents' motion to
conduct discovery with regard to the timeliness issue is DENIED.
Similarly, Respondents' motion to certify my March 24, 1995,
order for interlocutory review is DENIED.

Ct 1-- ~ cW-vr-Arthur J. Amchan
Administrative Law Judge
7Q3-756-6210

837

Distribution:
Stephen D. Turow, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlington, VA 22203 (Certified Mail)
Matthew L. Vadnal, Esq., Office of the Solicitor,
U. S . Department of Labor, 1111 Third Avenue, Suite 945,
Seattle, WA 98101 (Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln Street,
Suite 2710, Denver, CO 80264 (Certified Mail)
Felicity Hannay, Esq., Davis, Graham & Stubbs, Suite 4700,
370 Seventeenth St., P. 0. Box 185, Denver, CO 80201-0185
(Certified Mail)

/lh

838

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW. 6TH FLOOR
WASHINGTON, 0.C. 20006

May 31> 1995

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

v.
LONE MOUNTAIN PROCESSING,
INCORPORATED,
Respondent

...
.
.
.:

CIVIL PENALTY PROCEEDING
Docket No. RENT 95-345
A. C. No. 15-17234-03515
Huff creek No. 1

:
:

ORDER ACCEPTING APPEARANCE
ORDER ACCEPTING LATE FILING
ORDER DIRECTING OPERATOR TO ANSWER
It is ORDERED that the conference and Litigation Representative (CLR) be accepted to represent the Secretary in accordance
with the notice of limited appearance he has filed with the
penalty petition. Cyprus Emerald Resources Corporation,
16 FMSHRC 2359 (November 1994).
on April 24, 1994, the CLR filed a motion to accept late
filing of the penalty petition along with an affidavit. As I
have previously recognized, the CLR program is a new approach by
the Secretary to have non-lawyer MSHA employees appear before the
Commission in less complicated cases. I have approved the
practice. Cyprus Emerald Resources corporation, supra. As set
forth in an affidavit of the CLR, there was some confusion over
the computation of the 45 day period allowed for filing the
penalty petition and therefore, the penalty petition was filed 16
days late. I take judicial notice of the fact that as a general
matter pleadings and motions filed by CLRs with the commission
are most prompt.
The operator has not filed an objection to the CLR's motion.
29 C.F.R. § 2700.10. There is ~o allegation of prejudice
The Commission has not viewed the 45 day requirement as
jurisdictional or as a statute of limitation. Rather, the
Commission has permitted late filing of the penalty petitions
upon a showing of adequate cause by the Secretary where there has
been no showing of prejudice by the operator. Salt Lake county
Road Department, 3 FMSHRC 1714, 1716 (July 1981); Rhone-Poulenc
of Wyoming co., 15 FMSHRC 2089 (Oct. 1989). I find the circumstances as stated above constitute adequate cause for the short
delay in the filing of the penalty petition.

839

In liqht of the foreqoinq, it is ORDERED that the CLR•s
motion to accept late filinq of the penalty petitio~ be GRANTED.
It is further ORDERED that the operator file an answer to
the penalty petition within 30 days of the date of this order.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Ronnie R. Russell, Tommy D. Frizzell, Conference and Litigation
Representative, MSHA, u. s. Department of Labor, P. o. Box 1762,
Barbourville, KY 40906
Mr. Mark A. Whit•, President, Lone Mountain Processing Inc.,
P. o. Box 40, Pennington Gap, VA 24277

840

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 t< STREET NW, 6TH FLOOR
WASHINGTON. 0.C. 20006

May 31, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 95-357
A. C. No. 15-16936-03502 E24
Langley Branch

v.
AUSTIN POWDER COMPANY,
Respondent

ORDER ACCEPT.ING APPEARANCE
ORDER ACCEPTING LATE FILING
ORDER DIRECTING OPERATOR TO ANSWER
It is ORDERED that the conference and Litigation Representative (CLR) be accepted to represent tne secretary in accordance
with the notice, of limited appearance he has filed with the
penalty petition. Cyprus Emerald Resources corporation,
16 FMSHRC 2359 (November 1994).
on April 24, 1994, the CLR filed a motion to accept late
filing of the penalty petition along with an affidavit. As I
have previously recognized, the CLR program is a new approach by
the secretary to have non-lawyer MSHA employees appear before the
Commission in less complicated cases.
I have approved the
practice. Cyprus Emerald Resources Corporation, supra. As set
forth in an affidavit of the CLR, there was some confusion over
the computation of the 45 day period allowed for filing the
penalty petition and therefore, the penalty petition was filed 51
days late. I take judicial notice of the fact that as a general
matter pleadings and motions filed by CLRs with the commission
are most prompt.
The operator has not filed an objection to the CLR 1 s motion.
29 C.F.R. § 2100.10.
There is no allegation of prejudice
The Commission has not viewed the 45 day requirement as
jurisdictional or as a statute of limitation. Rather, the
commission has permitted late filing of the penalty petitions
upon a showing of adequate cause by the Secretary where there has
been no showing of prejudice by the operator. Salt Lake County
Road Department, 3 FMSHRC 1714, 1716 (July 1981); Rhone-Poulenc
of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989). I find the circumstances as stated above constitute adequate cause for the short
delay in the filing of the penalty petition.

In light of the foregoing, it is ORDERED that the CLR 1 s
motion to accept late filing of the penalty petition be GRANTED.

841

It is furthe:...· ORDERED that the operator file an answer to
the penalty petition within 30 days of the date of this order.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Ronnie R. Russell, Conference and Litigation Representative,
MSHA, u. s. Department of Labor, P. O. Box 1762, Barbourville, KY
40906

Mr. Larry J. King, Austin Powder company, 25800 science Park
Drive, Clev eland, OH 44122
/gl

84 2

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

20006

May 31, 1995

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 95-387
A. C. No. 15-16864-03516

v.
#1 Mine
!BOLD INCORPORATED,
Respondent
ORDER ACCEPTING APPEARANCE
ORDER ACCEPTING LATE FILING
ORDER DIRECTING OPERATOR TO ANSWER
It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to represent the Secretary in accordance
with the notice of limited appearance he has filed with the
penalty petition. Cyprus Emerald Resources corporation,
16 FMSHRC 2359 (November 1994).
on April 24, 1994, the CLR filed a motion to accept late
filing of the penalty petition along with an affidavit. As I
have previously recognized, the CLR program is a new approach by
the Secretary to have non-lawyer MSHA employees appear before the
Commission in less complicated cases. I have approved the
practice. Cyprus Emerald Resources corporation , supra. As set
forth in an affidavit of the CLR, there was some confusion over
the computation of the 45 day period allowed for filing the
penalty petition and therefore, the penalty petition was filed 16
days late. I take judicial notice of the fact that as a general
matter pleadings and motions filed by CLRs with the Commission
are most prompt.
The operator has not filed an objection to the CLR's motion.
29 C.F.R. § 2100.10. There is no allegation of prejudice
The commission has not viewed the 45 day requirement as
jurisdictional or as a statute o! limitation. Rather, the
Commission has permitted late filing of the penalty petitions
upon a showing of adequate cause by the Secretary where there has
been no showing of prejudice by the operator. Salt Lake county
Road Department, 3 FMSHRC 1714, 1716 (July 1981); Rhone-Poulenc
of Wyoming co., 15 FMSHRC 2089 (Oct. 1989). I find the circumstances as stated above constitute adequate cause for the short
delay in the filing of the penalty petition.
In light of the foregoing, it is ORDERED that the CLR's
motion to accept late filing of the penalty petition be GRANTED.

843

It is further ORDERED that the operator file an answer to
the penalty petition within 30 days of the date of this order.

Paul Merlin
Chief Administrative Law Judge
Distribution :

{Certified Mail)

Ronnie R. Russell, Charles H. Grace, Conference and Litigation
Representative, MSHA, U. s. Department of Labor, P. o. Box 1762,
Barbourville, KY 40906
Mr. Willie Mack Yount, Supt., !bold Inc. , P.
Pennington Gap, VA 24277

/gl

844

o. Box 429,

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

May 31, 1995

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

CIVIL PENALTY PROCEEDINGS
Docket Nos. LAKE 94-72, etc.

v.

Buck Creek Mine

BUCK CREEK COAL·. INC. ,
Respondent
ORPER DENYING MOTION FOR STAY
ORPER GRANTING IN PART AND DENYING IN PART
OBJECTION TO NQTICE OF DEPOSITIQNS
AND MOTION FOR PROTECTIVE ORPER
PREHEARING ORPER

On April 25, 1995, the Commission issued a decision vacating
the February 15, 1995, order continuing the stay of all Buck
Creek cases. Buck Creek Coal Inc., 17 FMSHRC 500 (April 1995).
As a consequence, the Secretary, by counsel, has filed a Motion
for Stay of Civil Proceedings and an Objection to Notice of
Depositions and Motion for Protective Order. Buck Creek opposes
the Secretary's motions.
Motion for Stay
The Secretary requests the "entry of an order which stays
·for sixty days all citations which have been designated by the

845

United States Attorney as areas involving conduct under criminal
investigation." Motion for Stay at 3. 1 For the reasons set
forth below, the request is denied.
The motion states that the Secretary has ref erred numerous
alleged violations of the Federal Mine Safety and Health Act of
1977, 30 U.S . C. § 801 et seq., to the U.S. Attorney, who, in
turn, has initiated a review of all violations issued at the Buck
Creek Mine from April 1993 through April 1995. The Secretary
asserts that:
"Any criminal prosecution resulting from said
referral would arise out of the same facts and circumstances
present in the instant proceedings . The factual and legal issues
arising in any criminal prosecution would be similar or identical
to many of the citations involved in the above cases."
In its Buck Creek decision, the Commission set out five
factors that should be considered in determining whether a stay
should be granted:
(1 ) the commonality of evidence in the civil
and criminal matters; (2) the timing of the stay request; (3)
prejudice to the litigants; (4) the efficient use of agency
resources; and (5) the public interest . Id . at 503. The
Commission stressed that 11 [w]e conclude that the first element
listed above, commonality of evidence, is a key threshold factor 11
that must be established in the record .
Id.

1

Somewhat inconsistently, the first paragraph of the motion
states that the Secretary:
moves to stay proceedings involving citations issued on
or before September 1, 1994 and which have been
designated as involving areas of conduct under criminal
investigation by the Federal Mine Safety and Health
Administration and the United States Attorney for the
Southern District of Indiana . The Secretary further
requests that certain citations issued after September
1, 1 994 be stayed for sixty days or until such time as
the United States Attorney . . . makes a determination
regarding prosecution of Buck Creek Coal Company and
any of its officers for criminal violations of the
Federal Mine and Health Act of 1977.

846

This clearly places the burden on the party seeking the stay
to satisfy this threshold showing or have the stay denied before
any of the other factors are considered.
In spite ol this
guidance, the Secretary has not presented in his new request
anything other than the same type of unsupported assertions which
the Commission has already found insufficient for the granting of
a stay.
In none of the pleadings does the Secretary state what the
criminal investigation involves. The closest that the Secretary
comes to providing this information is in his memorandum in
0
support of the motion where it states:
Those areas of conduct
involve roof control plan at the face; failure to follow the
ventilation plan, failures to report accidents including face
ignitions and failures and to properly record hazardous
conditions required to be written in the record books."
Memorandum at 2 . However, it is not clear from the context of
the paragraph whether this refers to the citations for which the
Secretary is see·~ing a stay or those for which he is not.
Furthermore, even if the quoted language does refer to the
citations which the Secretary seeks to have stayed, it advises
only what conduct the citations concern, not what the
investigation involves. Therefore, there is nothing to compare
the citations or orders which the Secretary seeks to have stayed
with in order to determine whether there is a commonality of
evidence and issues . 2

2

The Secretary has attached to his motion. a 27 page list
of citations. This apparently shows which specific citations or
orders he seeks to have stayed, although that is not entirely
clear since there is no explanation as to what some of the
notations on the list, specifically the "Y" and "N, 11 mean . This
list is not useful; the cases before me are in dockets, but the
list makes no reference to dockets.
In view of my decision, the
unhelpfulness of the list makes no difference. However, in the
future, the parties would be well advised to discuss citations or
orders by docket as well as citation or order number, rather than
expecting the judge to go through each of the over 500 dockets
attempting to find the citation or order number mentioned.

847

The failure of the Secretary to establish a commonality of
issues and evidence between the instant cases and the criminal
matters, leaves no alternative but to deny the request for stay.
Accordingly, it is ORDERED that the Motion for a Stay of Civil
Proceedings is DENIED.
Objection to Depositions and Motion for Protective Order

With respect to the Buck Creek's notices of deposition3
the Secretary requests:
(1) that the Respondent be only
permitted to depose the inspectors who issued the citations or
orders and that questions be limited to matters contained in the
citations or orders; (2) that inquiry concerning the criminal
investigation on any stayed citation be prohibited; (3) that
seeking the identity or testimony of any cooperating witnesses in
the criminal proceeding be prohibited; and (4) that the taking of
depositions of Rex Music, David Whitcomb, Mark Eslinger, Mike
Conley, Woodrow Hale, Richard Oney, Mike Finnie, Edward Ritchie
or April Bryan be prohibited because they are either managers
without first hand knowledge of the facts underlying the case,
are special investigators who did not conduct the inspections or
issue the citations or orders, or are a secretary in the
Madisonville, Kentucky, field office.
Commission Rule 56(b), 29 C.F.R. § 2700.56(b), states that
[p]arties may obtain discovery of any relevant, non-privileged
matter that is admissible evidence or appears likely to lead to
the discovery of admissible evidence. 11 Rule 56(c), 29 C.F.R.
§ 2700.56(c), provid~s that 11 [u]pon motion by a party or by the
person from whom discovery is sought or upon his own motion, a
Judge may, for good cause shown, limit discovery to prevent undue
delay or to protect a party or person from oppression or undue
burden or expense."
11

The Secretary's motion contains almost nothing in · the way of
good cause for its requests. With regard to its request that the
depositions of specific individua~s be prohibited, the motion
simply states, in addition to the fact that the individuals are

3

Buck Creek's notices of depositions were filed with the
Secretary in July 1994. The Secretary's objection to them was
not ruled on at that time because of the granting of the stay.
The Secretary now renews his objection.

848

managers, special investigators or a secretary, that " [t]he
depositions of the above individuals are not relevant to the
civil citations/orders and Buck Creek should not be _allowed to
conduct discovery in these proceedings relating to the criminal
investigation of Buck Creek Coal Company and its officers. "
Secretary's Motion at 3. No argument or evidence of any type is
presented for the remaining requests.
In its decision vacating the stay, the Commission pointed
out that 11 [t]he judge has the power to impose limitations on the
time and subject matter of discovery, which would permit the
civil matter to proceed without harming the criminal case . " Id.
at 504. The Commission further stated that i n doing this, "[t]he
judge should also consider [the commonality of issues and
evidence between the civil and criminal matters] when determining
the limits of discovery in order to permit civil proceedings to
advance without prejudice to criminal matters . " Id~ at 505. On
the other hand, as the Commission also stated, "courts do not
permit criminal defendants to employ liberal civil discovery
procedures to obtain evidence that would ordinarily be
unavailable to them in the parallel criminal case . " Id. at 504.
The difficulty with this motion, as with the motion for
stay, is that the Secretary has not provided any information
concerning the parallel criminal case on which I can make a
consideration of the commonality between the civil and criminal
matters. The instant motion provides even less information than
the stay motion concerning what the criminal investigation
involves.
Accordingly, taking into consideration the wide scope of
discovery set forth in Rule 56(b) and the Secretary's almost
total failure to set forth good cause, let alone provide evidence
to support it, the Secretary's motion is GRANTED IN PART and
DENIED I N PART as follows:
(1) The Secretary ' s request·that the depositions of
Rex Music, David Whitcomb, Richard Oney, Mike Finnie
and Mark Eslinger be prohibited is DENIED . The fact
that these individuals are managers does not mean that
they do not have knowledge of the facts underlying
these cases or information that might lead to the
discovery of admissible evidence.

849

(2)
The Secretary's request that the depositions of
Edward Ritchie, Mike Conley and Woodrow Hale be
prohibited is DENIED . The fact that these indivi duals
"did not conduct inspections which resulted in the
issuing of the citations/orders or write the
citations/orders" does not mean that they do not have
knowledge of facts underlying the cases or information
that might lead to the discovery of admissible
evidence .
(3)
The Secretary's request that the deposition of
April Bryan be prohibited is GRANTED . It appears
obvious from her position that she is not likely to
have knowledge of the facts underlying these cases or
information that might lead to the discovery of
admissible evidence.
(4)
The Se,9 retary 1 s request that the Respondent be
prohibited from inquiring concerning the criminal
investigation on any citation or order for which the
Secretary has requested a stay is GRANTED. Although by
this order no citations or orders have been stayed,
inquiries concerning the criminal investigation would
not have any relevance to the cases in this proceeding .
(5 ) The Secretary ' s request that the Respondent be
prohibited from seeking the identity or the testimony
of any cooperating witness in the cri minal proceeding
is premature. The informant's privilege is already
available to the Secretary.
If the Respondent attempts
to elicit such information from a witness, the
Secretary asserts the privilege and the Respondent
seeks to compel a response, I will rule on the mat t er
in accordance with Commission Rule 61, 29 C . F.R .
·
§ 2700.61.
Thunder Basin Coal Co., 15 FMSHRC 2228
(November 1993); Bright Coal Co., 6 FMSHRC 2520
(November 1984) .
(6)
The Secretary's request that the Respondent be
allowed to depose only those inspectors who issued the
citations or orders is DENIED.

850

This order permits the taking of depositions 19 individuals,
including managers, from district offices in and around Indiana.
I expect the parties to cooperate in scheduling the depositions
so that they are not unduly burdensome or oppressive either to
the individual witnesses or their respective offices in carrying
out their day-to-day activities.
Prehearing Order

In accordance with the provisions of Section 105(d) of the
Act, 30 U.S.C. § 815(d), these cases will be set for hearings on
the merits at times and places to be designated in subsequent
orders. Prior to setting the cases for hearing, the parties are
directed to confer for the purpose of discussing settlements and
stipulating as to matters not in dispute. These discussions, as
well as discovery, should be completed by August 3, 1995.
A prehearing conference will be held on August 3, 1995, in
Sullivan, Indiana, beginning at 9:00 AM. The purpose of the
conference will be to go through the cases docket by docket to
take settlements and schedule hearings. Any discovery issues
that have not been resolved, along with any unusual procedural or
evidentiary issues will be taken up at that time. The parties
should make sure that any witnesses necessary for completing the
above matters are present at the hearing room.

J.~~

T. Todd Hod~~
.
Administrative Law Judge
(703) 756-4570

Distribution:
Henry Chajet, Esq., Fiti A. Sunia, Esq., Patton Boggs, L.L.P.,
2550 M Street, N.W., Washington, D~ 20037-1350 (Certified Mail)
Rafael Alvarez, Esq., Office of the Solcitor, U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified
Mail)
Thomas A. Mascolino, Esq., Deputy Associate Solicitor, Office of
the Solicitor, Mine Safety and Health, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203 {Certified Mail)

851

852

•U . S. GOVER.\11ENT l'RINTINC Of'FlCE:

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