MAY AND JUNE 2006

COMMISSION DECISIONS AND ORDERS

05-02-2006
05-02-2006
05-02-2006
05-24-2006
05-25-2006
05-30-2006
06-02-2006
06-02-2006
06-02-2006
06-13-2006
06-13-2006
06-13-2006
06-28-2006
06-30-2006

Ronald D. Stokes
Jimmy L. Williams
Paul F. Becker Coal Company
North Star Contractors, Inc.
D.A.S. Sand and Gravel, Inc.
Martin County Coal Corporation, et al.
RG. Huston Company
Asarco, LLC.
KMMC, LLC., d/b/a Vision Mining Inc.
Whibco dfNew Jersey, Inc.
Marvin R Blethen, et al. employed by
Whibco, Inc.
Riverton Investment Corporation
Sec. Labor on behalf of Wendell McClain,
and otheis v. Misty Mountain Mining, Inc., et al.
Sedgman and David Gill employed by Sedgman

WEVA 2006-35
WEVA2006-39
PENN2006-9
WEVA2006-310
YORK. 2006-45-M
KENT 2002-42-R
LAKE 2006-101-M
WEST 2006-378-M
KENT 2006-261
YORK 2006-50-M

Pg. 231
Pg. 234
Pg.237
Pg. 241
Pg. 244
Pg. 247
Pg. 282
Pg. 285
Pg. 288
Pg.292

YORK 2006-47-M
WEVA2006-410-M

Pg. 296
Pg. 300

KENT 2005-96-D
SE2002-1 11

Pg. 303
Pg. 322

WEST 2006-219-M
WEST 2004-464-RM
CENT 2000-294-M

Pg. 354
Pg.359
Pg. 384

WEST 2005-403-M

Pg. 403

PENN 2002-23-C

Pg. 407

PENN 2002-24-C

Pg. 415

ADMINISTRATIVE LAW JVDGE DECISIONS

05-18-2006
06-23-2006
06-26-2006

Freeman Rock, Inc.
Suburban Sand & Gravel
Philip En"Vironmental Services

ADMINISTRATIVE LAW JUDGE ORQERS

05-02-2006
05-04-2006
05-04-2006

Washington Rock Quarries, Inc.
United Mine Workers of America, Local 1248
v. Maple Creek Mining, Inc.
United Mine Workers of America, Local 1248
v. Maple Creek Mining, Inc.

i

MAY AND JUNE 2006

Review was granted in the following cases _during the months of May and June:
Secretary of Labor, MSHA v. Ronald D. Stokes, Docket No. WEVA 2006-35. (Unpublished
Default order issued by Chief Judge Lesnick, March 23, 2006)
Secretary of Labor, MSJ:IA v. Jimmy L. Williams, Docket No. WEVA 2006-39. (Unpublished
Default order issued by Chief Judge Lesnick, March 23, 2006)
.
.
Secretary of Labor, MSHA v. Paul F. Becker Coal Company, Docket No. PENN 2006-9.
(Unpublished Default order issued by Chief Judge Lesnick, March 23, 2006)

No petitions were filed ih which Review was denied during the months of May and June:

ii

._

CO:MMISSION DEQSIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500

WASHINGTON, DC 20001

May2, 2006

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2006-35
A.C. No. 46-08909-70581 A

v.
RONALD D . STOKES

BEFORE: Duffy, Chairlnan; Jordan, Suboleski, and Young, Commissioners

DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
This matter arise5 under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 7, 2006, Chief Administrative Law Judge
Robert Lesnick issued to Ronald D. Stokes an Order to Show Cause for failing to answer the
Secretary of Labor's petition for assessment of civil penalty. On March 23, 2006, Chief Judge
Lesnick issued an Order of Default entering judgment for the Secretary and directing Mr. Stokes
to pay the proposed civil penalty immediately.

On April 7. 2006, the Commission received correspondence from Mr. Stokes which we
construe to be a timely petition for discretionary review. In that petition, Mr. Stokes seeks to
reopen the case and states that he was discussing settlement with the Solicitor's Office and ''was
confused about the fact I should have still made contact with the Commission." The Secretary
states that she does not oppose granting Mr. Stokes• petition.
The Chief Judge' s jurisdiction over this case terminated when he issued his default order
on March 23, 2006. .29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700.?0(a). We deem Mr. Stokes' correspondence to be a timely filed petition for
review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988).

28 FMSHRC 231

Upon review of the record, we have determined that the wording of the Order to Show
Cause did not conform to the Commission's Procedural Rules. Accordingly, in the interest of
justice, we hereby vacate the Order ofDefault and remand this matter to the Chief Judge for
further appropriate proceedings. See REB Enterprises, Inc:, 18 FMSHRC 311 (March 1996).

~s
Michael F~hmman

Mic

28 FMSHRC 232

Distribution

Mr. Ronald D. Stokes
209 Stadium Drive
Rupert. WV 25984
Karen M . Barefiel~ Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001 -2021

28 FMSHRC 233

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500

WASHINGTON, DC 20001

May2,2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2006-39
A.C. No. 46-08909-70580 A

v.
JIMMY L. WILLIAMS

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

DIRECTION FOR REVIEW AND QRDER

BY TIIE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On February 7, 2006, Chief Administrative Law Judge
Robert Lesnick issued to Jimmy L. Williams an Order to Show Cause for failing to answer the
Secretary of Labor's petition for assessment of civil penalty. On March 23, 2006, Chief Judge
Lesnick issued an Order of Default entering judgment for the Secretary and directing
Mr. Williams to pay the proposed civil penalty immediately.
On April 5, 2006, the Commission received correspondence from Mr. Williams which we
construe to be a timely petition for discretionary review. In that petition, Mr. Williams seeks to
reopen the case and states, among other things, that he ''replied in writing before the 30 days was
up." The Secretary states that she does not oppose granting Mr. Williams' petition.
The Chief Judge's jurisdiction over this case terminated when he issued his default order
on March 23, 2006. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700.70(a). We deem Mr. Williams' correspondence to be a timely filed petition for
review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988).

28 FMSHRC 234

Upon review of the record, we have determined that the wordirtg of the Order to Show
Cause did not conform to the Commission's Procedural Rules. Accordingly, in the interest of ·
justice, we hereby vacate the Order of Default and remand this matter to the Chief Judge for
further appropriate proceedings. See REB Enterprises, Inc., 18 FMSHRC 311(March1996).

~·~
· . ·. .
·
.

Michael~

28 FMSHRC 235

Distribution
Jimmy L. Williams
P.O. Box 51
Crab Orchard, WV 25827
Karen M. Barefield, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 236

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

May2,2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. PENN 2006-9
A.C. No. 36-06928-66470

V.

PAUL F . BECKER COAL CO.

BEFORE: Duffy, Chairinan; Jordan, Suboleski, and Young, Commissioners

DIRECTION FOR REVIEW AND ORDER
BY TIIB COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U .S.C. § 801 et seq. (2000) ("Mine Act"). On February 3, 2006, Chief Administrative
Law Judge Robert Lesnick issued to Paul F. Becker Coal Company ("Becker") an Order to Show
Cause for failure to answer the Secretary of Labor's petition for assessment of civil penalty. On
March 23, 2006, Chief Judge Lesnick issued an Order of Default entering judgement for the
Secretary and directing Becker to pay the proposed civil penalty immediately.
On April 10, 2006, the Commission received a notarized letter from Paula M. Becker,
Becker's representative, which we construe to be a timely petition for discretionary review. In
the letter, Becker states that the owner, Paul F . Becker, had been ill for some ·time. and passed
away on March 4, 2006. The Secretary has indicated that she does Ii.ot oppose granting Becker's
petition for review.
The judge's jurisdiction in this matter tenninated when his decision was issued on March
23, 2006. 29 C.F.R .§ 2700.69(b). Relief from a judge's decision may be sought by filing a·
petition for discretionary review within 30 days ofits issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R
§ 2700.70(a). We deem Becker's correspondence to be a timely filed petition for discretionary
review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988).

28 FMSHRC 237

U.pon review of the recor~ we have determined that the wording of the Order to Show
Cause did not conform with the Commission's Procedural Rules. Accordingly, in the interest of
justice, we hereby vacate the Order of Default and remand this matter to the Chief Judge for
further appropriate proceedings. See REB Enterprises, Inc., 18 FMSHRC 311 (Mar. 1996).

Mic

28 FMSHRC 238

Distribution
Paul F . Becker, Owner
Paul F. Becker Coal Company
1593 Old Route 22
Duncansville, PA 16635
Adam F. Welsh, Esq.
Office of the Solicitor
U.S. Department of Labor
The Curtis Center, Suite 630E
170 S. Independence Mall West
Philadelphia, PA 19106-3306

·-

W. Christian Schumann. Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001-2021

28 FMSHRC 239

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

May24, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
Docket No. WEVA 2006-310
A.C. No. 46-08224-61570

ADMINISTRATION (MSHA)

v.
NORTH STAR CONTRACTORS, lNC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Youn~ Commissioners

ORDER
BY: Duffy, Chairman; Suboleski and Young, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

a

§ 801 et seq. (2000) ("Mine Acf'). On April 6, 2006, the Commission received letter from the
secretary and treasurer of North Star Contractors, Inc. (''North Stat'') requesting that the
Commission reopen a penalty assessment of $32,500.00 that had become a final order of the
Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 12, 2005, the Department of Labor' s Mine Safety and Health Administration
(''MSHA") issued to North Star the proposed penalty assessment at issue. In its letter, North Star
addresses the merits of the alleged violations underlying the proposed assessment. Although the
company offers no explanation for its failure to timely contest the proposed assessment, it states
that ''we do get behind at times [in paying penalties] due to lack of profit and financial delays."
The company also asserts that the penalties at issue "seem very unfair and unreasonable." The
Secretary states that North Star "identifies no grounds for requesting reopening of the penalty
assessments in question," and requests that the Commission direct North Star to provide a
detailed explanation of why this matter should be reopened.
28 FMSHRC 240

We have held that in appropriate circumstanc·e s, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the J>asis of inadvertence or mistake. See 29 C.F.R
§ 2700.1 (b) ("the Commission a.lid its Judges· shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed that de.fault is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed North Star's letter, we agree with the Secretary that North Siar must
provide an explanation as to why reopening this matter is warranted. 1 Accordingly, in the
interests ofjustice, we remand this matter to the Chief Administrative Law Judge for a
determination of whether good cause exists for North Star's failure to timely contest the penalty
proposal and whether relief from the final order should be granted. Ifit is detemrined that such
relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission• s
Procedural Rules, 29 C.F .R. Part 2700.

1

The Commission also received from North Star a letter dated April 26, 2006, which
again addresses the merits of the proposed penalty assessment at issue, but provides no
explanation for its failure to timely respond.
28 FMSHRC 241

Commissioner Jordan, dissenting:
I would deny the operator's request for relief from the final order. Pursuant to Rule 60(b)
of the Federal Rules of Civil Procedure, we ·have previously afforded a party relief from a final
order on the basis of inadvertence or mistake. Slip op. at 2. However, North Star has failed to
provide any explanation to justify its failure to timely contest the proposed penalty assessment.
See Tanglewood Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995) (denying request to reopen
final Commission order where operator failed to set forth groundS justifying relief). Accordingly,
I find no grounds upon which relief could be granted in this case, and would deny the company' s
request and dismiss these proceedings without prejudice.

28 FMSHRC 242

Distribution
Carl Kirk, Sec./freas.
North Star Contractors, Inc.
29501 Mayo Trail
Catlettsburg. KY 41129
(by certified mail)
W. Christian Schmnanni Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N .W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 243

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500

WASHINGTON, DC 20001

May25, 2006
SECRETARY OF LABO~
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2006-45-M
A.C. No. 30-03254-77405 ·

v.
D.A.S. SAND AND GRAVEL, INC.
BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On April 24, 2006, the Commission received a letter from the
president of D.AS. Sand and Gravel, Inc. (''D.A.S.") requesting that the Commission reopen a
penalty assessment that became a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 17, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA'') sent to D.A.S. the proposed penalty assessment at issue. In his letter to the
Commission, the company president asserts, ''It has been brought to my attention that your office
has not received my paperwork requesting the right to contest these assessments." He alleges
that he sent the paperwork to the Commission to contest the proposed penalty assessments on the
same day that he received them. He explains, ''I have religiously returned my paperwork to
contest all of my assessments." The Secretary of Labor states that she does not oppose D.A.S.'s
request for relief.

28 FMSHRC 244

We have held that in appropriate circwnstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR.'1. In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.l(b) (''the Commission and its Judges· shall be guided so far as practicable by the Federal
Rules of Civil Procedure'); JWR., 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely resp~nd, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed D .A.S. 's request, in the interests ofjustice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for D.AS's
apparent failure to timely contest the penalty proposal and w~ether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shaQ proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700~

Mich

28 FMSHRC 245

. ..

Distribution
David A Sheer
DAS Sand and Gravel
1444 Hydesville Road
Newark, NY 14513
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor
Arlington, V.A 22209-2296
Chief .Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey .Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 246

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

May30,2006
SECRETARY OF LABOR,
Docket Nos. KENT 2002-42-R
KENT 2002-43-R
KENT 2002-44-R
KENT 2002-45-R
KENT 2002-251
KENT 2002-261
KENT 2002-262

MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

v.
MARTIN COUNTY COAL
CORPORATION and
GEO/ENVIRONMENTAL
ASSOCIATES

BEFORE: Duffy, Chairman; Jordan, Young, Commissioners1
DECISION
BY: Youn~, Commissioner
This civil penalty proceeding, which arises under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 80 i et seq. (2000) (''Mine Act" or "Act"), involves citations and an order
that were issued as a result of a slurry spill and a breakthrough at a coal waste impoundment
owned and operated by Martin County Coal Corporation ("MCC'') on October 10, 2000.
Administrative Law Judge Irwin Schroeder affirmed four citations and dismissed four
citations/orders issued by the Department of Labor's Mine Safety and Health Administration
("MSHA") that were contested by MCC and its independent contractor, Geo/Environmental
Associates ("Geo"). 26 FMSHRC 35 (Jan. 2004) (ALJ). The Secretary of Labor, MCC and Geo
filed petitions for discretionary review appealing the judge's decision, which the Commission
granted. For the reasons that follow, we affirm in part, reverse in part, vacate and remand in
part.3

1

Commissioner Suboleski recused himself in this matter.

2

A majority·ofthe Commissioners joins in each seetion of Commissioner Young's
opinion, and therefore it constitutes the Commission's decision in this case. A footnote at the
beginning of each section explains which Commissioners join in that section.
3

Administrative Law Judge Schroeder is no longer.with the Commission. We therefore
remand the proceeding to the Chief Adininistrative Law Judge for ,reassignment.
28 FMSHRC 247

I.

Factual and Procedural Background
MCC, a wholly owned subsidiary of A.T. Massey Coal Company, Inc., operated the Big
Branch Slurry Impoundment located near Inez, in eastern Kentucky. 26 FMSHRC at 36; Jt.
Stips. I & 3; Tr. 4-5.4 MCC developed the impoundment in the mid-1980s for storage ofboth
coarse refuse arid slurry (fine refuse). 26 FMSHRC at 37; Gov't Ex. l, at 2. Prior to the 2000
breakthrough, the impoundment had a depth of 221 feet and a surface area of 68 acres. Gov't Ex.
1, at 2. It held 2.125 billion gallons of water. Id.
The impoundment was located adjacent to a preparation plant and two underground
mines. Id. The preparation plant employed 23 persons and processed approximately 7,500 tons
of clean coal daily from MCC' s underground and surface mines. Id. An overland belt conveyor
transported the coarse coal refuse from the preparation plant to the impoundment, where it was
then pumped into the impoundment as slurry. Id.
MCC operated two underground mines adjacent to the impoundment, the 1-S (Stockton
Seam) Mine and 1-C (Coalburg Seam) Mine. Id. The 1-S Mine had ceased mining by the time
of the 2000 impoundment breakthrough and was not involved in the breakthrough accident. Id.
The 1-C Mine employed six underground miners and two surface miners. Id. At the time of the
breakthrough, most of the 1-C mine had been abandoned, and coal was not being produced; Id.
The only active portions of the 1-C Mine were the Nos. 1-3 North Mains through which belt
conveyors transported coal from various MCC mines to the preparation plant. Id. .These mains
were isolated from the abandoned workings in the. 1-C Mine. by seals. Id.; Jt. Ex. 3.
A.

1994 Breakthrough

On May 22, 1994, water and slurry broke into the abandoned mine workings of the 1-C
Mine. 26 FMSHRC at 37-38; Gov't Ex. 1, at 13-14; MCC Ex. P. The water drained through the
mine and resulted in discharges from the mine at three locations, including the South Mains
Portal on the west side of the mine. MCC Ex. Al, at 012291 ; Gov't Ex. 1, at 14, Fig. 25.
Nearly 112 million gallons of slurry and water were discharged. Gov't Ex. 1, at 14. The outflow
in the 1994 breakthrough was mostly water and caused no significant downstream damage. Id.
The void was filled with spoil material from the surrounding hillside, and the failure was
plugged. Id.; MCC Ex. Al, App. 1at012302. According to the 1994 MSHA accident
investigation report, the breakthrough occurred through an opening created by a collapse of the
mine roof or by water from the impoundment penetrating a natural hill seam in the roof rock.
Gov't Ex. 14, at 14-15. The report recommended that the impoundment plan be modified to
prevent a recurrence. Id. at 15.

4

The transcript from the hearings held on June 9 through June 12, 2003 is referred to as
''Tr." and the transcript from the hearings on August 4 through August 7, 2003 is referred to as
''Tr. I."
28 FMSHRC 248

B.

1994 hnpoundment Sealing Plan

On May 23, 1994, the day after the breakthrough, Ogden Environmental & Energy
Services ("Ogden"), a geotechnical engineering consulting firm hired by MCC, prepared an
Jmpoundment Sealing Plan with remedial measures (the ''May Plan"). 26 FMSHRC at 38; MCC
Ex. 1, App. 1. MCC then submitted an hnpoundment Sealing Plan to MSHA on August 10,
1994 (the "August Plan"), which incorporated the May Plan. Gov't Ex. 2; MCC Ex. Al, at
012289 & App. 1. Aftet MSHA first reviewed the August Plan, it did not .approve the plan. See
Gov't Ex. 2A (letter of Sept. 9, 1994); MCC Ex. J. MCC provided additional information to
MSHA on October 5, 1994, and the revised Impoundment Sealing_Plari was approved by MSHA
on October 20, 1994. 26 FMSFiRC at 38; Gov't Ex.:2A.
·
The May Plan, uhder the heading of "Short Term Plan," stated:
Flow from the South Mains entry will be monitored daily, until remedial work at
the seepage point is completed. Monitoring will be done during regular
impoundment inspections after that. Any unusual change in flow quantity or
quality that would indicate possible impoundment leakage will be reported
immediately to MsHA and the appropriate mine management. Ali necessacy
remedial measures will be implemented.
MCC Ex. Al, App. 1 at 012303. The August Plan called for the construction of a seepage barrier
around the perimeter of the impoundment except for those portions which did not have mine
works below. 26 FMSHRC at 38. The seepage barrier was to be constructed using the spoil
material from the Stockton Seam, which consisted of highly permeable shot sandstone material.
Id.; Gov't Ex. l , at 16-17; MCC Ex. Al, at 012295. The plan contemplated that once the
seepage barrier was constructed, fine refuse material would be deposited on the barrier to
decrease permeability of the barrier. 26 FMSHRC at 38. The plan provided that "fine refuse
shall be directed along the barrier by periodically redirecting the discharge of fine refuse sluny."
MCC Ex. Al , at 012297. Construction of the seepage barrier occurred between February and
September of 1995. 26 FMSHRC at 39; Gov't Ex. l , at 16.
The August Plan also required installation ofreinforced seals separating the abandoned
workings, which had been flooded by the 1994 breakthrough, from the active areas of the mine to
protect miners in the event of another breakthrough. MCC Ex. Al, at 012297. However,
because of construction difficulties, the seals were not constructed in accordance with that plan.
Gov't Ex. 1, at 18; Tr. 436-38. On September 7, 1995, MCC submitted a revised seal plan that
called for strengthening the existing seals with gunite and steel reinforcement. Gov't Ex. 1, at
18-19; Gov' t Ex. 7. The revised plan was approved by MSHA on September 29, 1995. Gov't
Ex. 1, at 18-19; Gov't Ex. 7; Tr. 437-39. The reinforced seals were constructed in February and
March of 1996. Gov't Ex. 1, at 18.

28 FMSHRC 249

C.

Hiring of Geo to Monitor lmpoundment. htcluding the South Mains Portal

In February 1996, MCC hired Geo, an engineering consulting finn employing several
former Ogden engineers, to perform weekly impoundment monitoring and to prepare
impoundment annual reports and certifications. Gov't Ex. 6; Tr. I 684-85, 693-95, 757, 762-63.
Generally, the weekly inspections of the impoundment were performed and recorded by Eddie
Howard, a field technician for Geo. 26 FMSHRC at 39, 41; Gov't Ex. 6. Howard provided the
results of his inspection to both MCC and to his supervisors at Geo. 26 FMSHRC at 39, 41.
One of the weekly measuring points was the flow of water from the South Mains Portal, which
had been a discharge point in the 1994 breakthrough. Id.; MCC Ex. Al, at 012292, App. V (plan
view showing South Mains as discharge point); Gov't Ex. 6. The amount ofwater from the
South Mains area of the mine was determined by measuring the height of water in the out.flow
pipe from a small pond constructed at the foot of the South Mains Portal. 26 FMSHRC at 40.
Howard recorded the flow in inches with a ruler. Id. at 40, 48-49.
D.

2000 Breakthrough

On October 10, 2000, at approximately 4:00 p.m., belt examiner Mathias Simpkins
entered the 1-C Mine to examine and clean the belts. Gov't Ex. 1, at 3; Tr. 359-61. He remained
in the mine until 11 :50 p.m. Gov't Ex. 1, at 3. He then radioed the disj>atcher to report that he
had just left the mine. Id. While Simpkins was still talking to the dispatcher, Lovell Tony
Bowen, an electrician who was working on an overland belt, radioed the dispatcher at 12:05 a.m.
that the belt had stopped. Id. The dispatcher displayed the belt monitor screen on bis computer,
which indicated that the 2 North belt was off. Id. Simpkins unsuccessfully attempted to restart
the belt. Id. Bowen traveled in his truck to the 2 North Portal where he observed slurry flowing
out of the portal at high velocity and at a height of approximately 3 feet. Id. & Fig. 8. Bowen
reported bis findings to the radio dispatcher. Gov't Ex. 1, at 3. Bowen and Simpkins traveled to
the South Mains Portal where they observed an outpouring of slurry greater than at the North
Portal, creating a large gully just below the portal. Id. at 4 & Fig. 9; Tr. 351-52, 373-74.
Simpkins reported the impoundment breakthrough to the foreman of the preparation plant. Gov't
Ex. 1, at 4.
The dispatcher contacted the President ofMCC, Dennis Hatfield, at approximately 1:15
a.m. Id. At 1:40 a.m., all miners were withdrawn from the preparation plant and it was closed.
Id. Bulldozers began to push soil material into the breakthrough at approximately 2:00 a.m. and
the breakthrough was plugged at approximately 4:30 a.m. Id. MSHA was contacted at 3:00 a.m.
Id. As a result of the breakthrough, more than 300 million gallons of slurry-laden water had
rushed out of the impoundment and into adjacent streams, eventually reaching the Ohio River.
26 FMSHRC at 41; Gov't Ex. 1, at 4, Figs. 10, 11. Some families were evacuated from their
homes, but no lives were lost. Gov't Ex. 1, at 4; 26 FMSHRC at 41.
MSHA assembled a team of investigators and sent them to the scene. 26 FMSHRC at 42.
An extensive investigation ensued, and one year later MSHA issued the following citations and

order:

28 FMSlIRC 250

Citation No. 7144401, alleging a significant and substantial ("S&S") and
unwarrantable failure violation of30 C.F .R. § 77.216(d) for failure to follow the
approved plan because MCC failed to report to MSHA any unusual change in
flow quantity or quality from the South Mains Portal;
Order No. 7144402, alle~g an S&S and unwarrantable failure violation of
section 77.216(d) for not following the approved plan that required MCC to
periodically direct the fine refuse slurry discharge along the seepage barrier;
Citation No. 7144403, alleging a violation of section 77.216(d) because MCC
failed to construct the underground mine seals in accordance with the approved
plans;
Citation Nos. 7144404 and 7144408, alleging that MCC and Geo, respectively,
failed to include reference to the underground seals in the annual report and
certifications in violation of30 C.F.R. § 77.216-4(a)(7);
Citation No. 7144409, alleging a violation of 30 C.F.R. § 77.216-3(d) for Geo's
failure to indicate the actions taken to abate the hazardous conditions after the
impoundment breakthrough on the required 7-day examination report;
Citation No. 7144410, alleging that the annual reports prepared by Geo failed to
include the maximum and minimum readings for the South Mains Portal outflow
pipe in violation of30 C.F .R.§ 77.216-4(a)(2);
Citation No. 7144411, alleging that the weekly examinations conducted by Geo
were performed by an unqualified inspector who had not received annual refresher
training in violation of30 C.F.R. § 77.216-3(a)(4).
E.

Proceedings Before the Administrative Law Judge

A hearing was held in two parts before Judge Schroeder. A majority of the lay witnesses
were heard during the week of June 9; 2003. 26 FMSHRC at 36. The expert witnesses and the
remaining lay witnesses were heard during the week of August 4, 2003. Id. Prior to issuing his
decision, the judge dismissed two of the Secretary's claims: {l) Order No. 7144402, alleging that
MCC violated section 77.216(d) for its failure to direct the slurry along the seepage barrier on the
impoundment; and (2) Citation No: 7144409, alleging that Geo violated the requirement in
section 77.216-3(d) to note the abatement measures on the 7-day examination report. 8/28/03
Order.5

5

At the end of the Secretary' s case on June 12, 2003, MCC and Geo moved to dismiss
the Secretary's case and the judge initially orally dismissed Order No. 7144402 and Citation No.
7144409. Tr. 1221, 1245, 1247. On July 2, 2003, the judge issued an Order Granting Partial
Motion to Dismiss, memorializing his earlier ruling and dismissing the two claims. On
August 4, 2003, in response to the Secretary's motion for reconsideration, the judge agreed to
28 FMSHRC 251

..
The judge issued his decision on January 14, 2004. 26 FMSHRC at 35. As a preliminary
matter, the judge noted that he did not make a determination of the cause of the impoundment
failure because it was not at issue in any of the citations or orders before him. Id. at 42. The
judge found that MCC violated section 77.216(d) by not complying with the impoundment plan
provision governing the reporting of unusual changes in water flow quantity :from the South
Mains Portal during September 1999. Id. at 46-47. He did not discuss the related S&S
designation and also determined that the violation was not a result of unwarrantable failure. Id.
at 47. The judge found that bothMCC and Geo violated section 77.216-4(a)(7) by not including
a reference to the underground seals construction in the annual certification reports.6 Id. at 48.
The judge dismissed Citation No. 7144410, which alleged that Geo failed to include the readings
for the South Mains Portal outflow pipe in the annual reports under section 77.216-4(a)(2). Id. at
48-49. The judge directed MCC to pay a civil penalty of $5,600 and Geo to pay a civil penalty of
$100 for all ofits violations. Id. at 50.

hear the testimony of the Secretary's expert witness. Tr. I 36. On August 7, after he~g the
Secretary's witness, the judge again stated that the Secretary had .not established a claim as to
Order No. 7144402, regarding the redirecting of the slurry discharge along the seepage barrier.
Tr. I 990-92. On August 28, 2003, the judge issued an Order Denying Motion to Reconsider
Dismissal of Citations, which dismissed the order and the citation. Appendix A of the judge's
decision also sets forth his reasoning for dismissing Order No. 7144402. 26 FMSHRC at 51.
6

Although Geo has filed a,n appeal of this violation, MCC has not. Jn addition, two other
citations that are discussed in the judge's decision have not been appealed and are no longer at
issue before the Commission. See 26 FMSHRC at 47-49 (Citation No. 7144403, in which the
judge found a violation of section 77.216(d) for seals that were not constructed in accordance
with the approved plan; Citation No. 7144411, in which the judge dismissed a violation of
section 77.216-3(a)(4) for inspections by an unqualified inspector).
28 FMSHRC 252

II.
DiSJ>osition
A.

Summazy Dismissal of Order No. 714440z7

The judge vacated the Secretary's order alleging a violation of section 77.216(d)8 for
MCC's failure to comply with a provision of the Impoundment Sealing Plan that requires the
operator to ')leriodically redirecf' the coal refuse discharge along the seepage barrier. 26
FMSHRC at 51. In that order, the Secretary maintained that the failme to perform the task
resulted in an inadequate seepage barrier which, in tum resulted in the impoundment failure. Id.
The judge found that the Secretary never established a prim.a facie case. Id. He reasoned that the
Secretary failed to establish that prudent mining engineers in 1994 would have understood the
provision to require what the Secretary contended was necessary and that the slurry discharge
methods that the Secretary alleged were required under this provision were "far from standard
industry practice." 8/28103 Order, at 4; see also 26 FMSHRC at 51.
The Secretary alleges that.the judge prematurely dismissed Ordet No. 7144402 without
considering documentary evidence and deposition testimony directly related to the violation. She
further maintains that the judge failed to engage in any analysis with respect to the plain meaning
or ambiguity of the "seepage barrier'' provision that the Secretary advanced and with which MCC
agreed. Additionally, the Secretary asserts that if the provision is ambiguoris, her interpretation
of the plan provision is reasonable and thus entitled.to deference. MCC oounters that the judge
correctly dismissed the order at the proper time in the proceedings. It argues that the judge
correctly found that it complied with the plain meaning of the provision. Additionally, MCC
asserts that the Secretary is not entitled to deference in interpreting the plan provision.
Preliminarily, the first question we consider is whether the Secretary was fully heard on
Order No. 7144402. Commission Rule 63(b) states in pertinent part: "A party shall have the
right to present his case or defense by oral or documentary evidence~ to submit rebuttal evidence,
and to conduct such cross-examination as may be required for a full and true disclosme of the
facts." 29 C.F.R. § 2700.63(b). Federal Rule of Civil Procedure 52(c) entitled "Judgment on
Partial Findings" states in part: ''If during a trial without a jury a party has been fully heard on an
issue and the court finds against the party on that issue, the court may enter judgment as a matter
of law against that party with respect to a claim . .. that cannot under the controlling law be
7

Commissioner Jordan joins Commissioner Young in Part. II.A of this opinion.

8

30 C.F.R. § 77.216(d) provides:
The design, construction, and maintenance of all water,
sediment, or slurry impoundments and impounding structures ...
shall be i.Ihplemented in accordance with the plan approved by the
District Manager.
28 FMSHRC 253

maintained . . . . Such a judgment shall be supported by :findings of fact and conclusions of
law . . . .'79
The judge initially dismissed the Secretary's claim prior to the time that all her evidence
was presented (Tr. 1221, 1245, 1247; 7/2/03 Order). On June 12, 2003, at the hearing, the
Secretary offered the deposition testimony of Steven Gooslin, the preparation plant foreman,
which was admitted only minutes before the judge directed a verdict dismissing the Secretary's
claim. Tr. 1220, 1245. Nonetheless, on August 4, 2003, the judge agreed to hear the testimony
of the Secretary's remaining expert witnesses. Tr. I 36. Therefore, on balance, the judge had an
opportunity to hear and address the Secretary's entire case. .The Secretary also faults the judge
for failing to specifically address the evidence raised
his initial dismissal rulings. A judge,
however, does not need to address every point of evidence and must only include findings and
conclusions on ''material issues of fact [and] law." 29 C.F.R. § 2700.69(a). Accordingly,
although the judge's rulings were somewhat disjointed, he heard all the evidence presented
relating to Order No. 7144402 and, under Rule 63, the Secretary was heard on all tlie facts. 10

after

With regard to the plan provision at issue, the Impoundment Sealing Plan states
"Following the completion of the 'seepage barrier' fine refuse shall be directed along the barrier
by periodically redirecting the discharge of fine refuse slurry." MCC Ex. Al, at 012297. It is
well established that plan provisions are enforceable as mandatory standards. UMWA v. Dole,
870 F.2d 662, 671 (D.C. Cir. 1989); Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir.
1976); Energy .West Mining Co., 17 FMSHRC 1313, 1317 (Aug. 1995);Jim Walter Res., Inc., 9

9

Commission Rule 1(b) states:
On any procedural question not regulated by the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (''the Act"),
these Procedural Rules, or the Administrative Procedure Act
(particularly 5 U.S.C. 554 and 556), the Commission and its
Judges shall be guided so far as practicable by the Federal Rules of
Civil Procedure and the Federal Rules of Appellate Procedure.

29 C.F.R. § 2700.l(b).
10

MCC incorrectly argues that the issue was not properly preserved for appeal under
Federal Rule of Civil Procedure 59 because the Secretary failed to raise the argument that further
proof was necessary prior to the judge's June 12, 2003 dismissal. MCC Resp. Br. at 5. Rule 59
provides for new trials and the amendment of final judgments. Building Indus. Ass 'n ofSuperior
CA v. Sec'y ofInterior, 247 F.3d 1241, 1245 (D.C. Cir. 2001) (providing that Rule 59 applies
only to final judgments). However, the judge did not enter a decision in this case until January
14, 2004. 26 FMSHRC at 35. The Secretary properly brought her June 20, 2003 motion to
reconsider the judge's orders of dismissal at the interlocutory stage of the proceedings, and
appropriately sought review of the issue by filing a petition for discretionary review with the
Commission within 30 days of the judge's decision. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R.
§ 2700.70(a).
28 FMSHRC 254

FMSHRC 903, 907 (May 1987) ("JWR"). As such, the law governing the interpretations of
regulatory standards is applicable to plan provisions. Energy West, 17 FMSHRC at 1317. 11
The "language of a regulation ... is the starting point for its interpretation." Dyer v.
United States, 832 F .2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm 'n v.
GTE Sylvania, Inc., 447 U .S. 102, 108 (1980)). Where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such a meaning would lead to absurd
results. See id.; Utah Power &Light Co., 11FMSHRC1926, 1930 (Oct. 1989); Consolidation
Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). It is only when the meaning is ambiguous that
deference to the Secretary' s interpretation is accorded. See Udall v. Tallman, 380 U .S. l, 16-17
(1965) (finding that reviewing body must "look to the administrative construction of the
regulation if the meaning ofthe words used is in doubt") (quoting Bowles v. Seminole Rock &
Sand Co., 325 U .S. 410, 413-14 (1945)).
._

As the Secretary correctly asserts, the judge failed to evaluate what the provision plainly
means and then to determine whether there was a violation of the provision. In dismissing the
violation, the judge simply pointed to the fact that the Secretary failed to prove that the phrase
''periodic redirecting" of.slurry would have been understood by prudent mining engineers in 1994
to mean re-locating the slurry pipe. 26 FMSHRC at 51; 8/28/03 Order, at 4. The judge seemed
to suggest that the Secretary was arguing that the slurry discharge pipe had to be re-located along
the seepage barrier order to fulfill the requirements of the plan provision. However, the
Secretary's argument wcis not so narrow". Her motion to reconsider the distiiissal order states that
the phrase ''periodic re-directing" of slurry, in the .c ircumstances of this impoundment, would
mean to move the slurry discharge pipe or take "some equivalent action so that fine refuse is
deposited between the impoundment pool ... and the seepage barrier." S. Mot. to Reconsider
Orders of Dismissal (6/20/03), at 9. See also S. Br. at 20 {"To MSHA, physically moving the
discharge pipe was the obvious and effective option to achieve coverage of the seepage barrier
with fine refuse, but MCC could have used any other effective means to cover the seepage
barrier."); Tr. 9 (Secretaty' s Opening Argument asserting that MCC "failed to ensure that fine

m

11

We dispute the concurrence's assertion that our "interpretative approach directly
contradicts established Commission case law." Slip op. at 28. See Energy West, 17 FMSHRC at
1316-17 (applying controlling Commission case law on regulatory interpretation to interpretation
of ventilation plan). We need not address the concurrence's assertion that plan provisions are
treated "very differently µ-om mandatory standards,'' Slip op. at 28 (citing Harlan Cumberland
Coal Co., 20FMSHRC1275, 1280-81(Dec. 1998) andJWR, 9 FMSHRC at 906-08), or the
deference arguments raised by the parties because we determine that the plan provision is plain.
See Exportal Ltda v. United States, 902 F .2d 45, 50 (D.C. Cir. 1990) (quoting Pfizer, Inc. v.
Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) ("Deference ... is not in order if the rule's
meaning is clear on its face.")
28 FMSHRC 255

coal refuse was deposited along the impoundment seepage barrier."); see also Tr. I 20. Thus, the
judge's focus was incorrect and his.analysis incomplete. 12
"In determining the meaning of regulations, the Commission ... utilizes 'traditional tools
of .. . construction,' including an examination of the text and.the intent of the drafters." Amax
Coal Co. , 19 FMSHRC 470, 474 (Mar. 1997) (quoting Local Union 1261, UMWA v. FMSHRC,
917 F.2d 42, 44-45 (D.C. Cir. 1990)). In a plain meaning analysis, the Commission also looks to
the language and design of the Secretary's regulations as a whole. New Warwick Mining Co., 18
FMSHRC 1365, 1368 (Aug. 1996).

Based on its plain language, the plan provision requires the operator to place or cause to
move fine refuse over the length of the seepage barrier by regularly changing the course of the
slurry discharge. This plain meaning was also recognized by both MSHA and MCC. MCC
Superintendent Larry Muncie testified that the hnpoundment Plan required that the slurry be
''repositioned and redistributed" so that it became part of the seepage barrier. Tr. 1i70-75. MCC
President and General Manager Dennis Hatfield also testified that one plan provision stated ''as
slurry was pumped into the impoundment ... it would be redirected throughout the
impoundment pool and effectively coat the seepage barrier." Tr. 1312-13. Likewise, MSHA
engineers who were part of the investigation team testified that the plan required the slurry fines
to be distributed along the seepage barrier. Tr. 192, 486-87. The primary MSHA inspector for
the impolllldment, Robert Bellamy, testified that the plan required the operator to use whatever
means necessary to direct the slurry discharge along the seepage barrier. Tr. I 639-41.
The Impoundment Plan clearly states the pmpose of the seepage barrier. The plan
provides that:
The pmpose of the "seepage barrier" is twofold. The primary
purpose for the barrier will be to reduce, to the extent practical,
seepage from the impoundment that could contribute to the
occurrence of another ''breakthrough." Secondarily, the barrier
will provide bulk that will collapse into the subsided area in the
event another "breakthrough" occurs and should form a ''plug,"
limiting the amount of fine coal refuse and water entering the mine.
MCC Ex. Al, at 012294. Inherent in the language of the impoundment plan is the requirement
that the operator take the necessary measures to fulfill the purpose of the action mandated, as
clearly set forth in the plan. Here, the plan required MCC to ensure that fine slurry was
distributed along the length of the seepage barrier so as to prevent and limit the impact of another
breakthrough.
Reading the provision at issue within the context of the overall plan is consistent with the
Commission's construction of mine plans in accordance with well-settled rules of construction.

12

Our concurring colleague is similarly focused on the means used to comply with the
clear mandate of the plan provision at issue. Slip op. at 27.
28 FMSHRC 256

Mettiki Coal Gorp., 13 FMSHRC 3, 7 (Jan. 1991) ("a written document must be read as a whole,
and ... particular provisions should not be read in isolation"). Because the plan contains an
express purpose and the meaning of the provision is apparent, the operator, as we have
previously held in RAG Cumberland Resources, LP, must carry out the activities required under
the plan in an effective manner. See 26 FMSHRC 639, 647-48 (Aug. 2004), ajf'd, Cumberland
Coal Res., LP, 2005 WL 3804997, at *2 (D.C. Cir. 2005) (unpublished) (requiring compliance to
be undertaken in an "effective manner."). It is incumbent upon MCC to ensure that its
compliance with the plan is effective, especially given its past history with impoundment
failures. 13 MCC does not sufficiently comply with the irnpoundment plan by merely pumping
fine slurry into the impoundment without ensuring that the fines have accomplished the stated
purpose, which is to adequately cover the seepage barrier ''to reduce, to. the extent practical,
seepage from the impouDdment that could contribute to the occurrence of another
'breakthrough."' MCC Ex. Al, at 012294. This interpretation of the plan provision is also
consistent with the purp0se of section 75.216, which governs impoundment plans. As the
Commission found, the purpose of section 75.216 "is to assure the safety of impoundments and
minimize the risk and effect of failure." Monterey Coal Co., 5 FMSHRC 1010, 1017~(June
1983).
According to the plain meaning of the plan provision, MCC \"Vas required to cover the
seepage barrier with
in order to fulfill the purpose of the provision. nie judge, however,
never addressed whether MCC adequately complied with the provision. The evidence in the
record is not conclusive on this issue. Compare Tr. I 565 with Tr. 479 (~.tor Bellamy
testifying that he saw the slurry discharge pipe being moved, whereas the MSHA investigation
revealed that water level in the impoundment was above the slurry fines indicating inadequate
fines against the barrier); MCC Foreman Gooslin Dep. Tr. 56-57 (testifying that there was clear
water up against the seepage barrier in the pump area). Accordingly, we vacate the judge's
dismissal of Order No.7144402. Furthermore, because fact-finding is not the province of the
Commission, we remand the question of whether MCC provided effective coverage of the
seepage barrier under the terms of the Impoundment Plan. See Mid-Continent Res.", 16 FMSHRC
1218, 1222-23 (June 1994) (holding that remand appropriate when judge failed to adequately
address evidentiary record); RAG Cumberland Res., 26 FMSHRC at 647-48. See also Wyoming
Fuel Co., 16 FMSHRC 19, 21 (Jan. 1994) (providing that att~mpting to comply with the
provisions of a plan does not allow one to escape from liability). If the judge on remand finds a
violation, it will then be necessary to determine whether the violation is S&S and the result of
unwarrantable failure.

fines

13

The questions relied on by our concurring colleague (e.g., must the fines "cover every
square inch of the seepage barrier?" Slip op. at 27), to reach the conclusion that the provision is
ambiguous are simply evidentiary matters best left to the judge on remand.
28 FMSHRC 257

B.

Summary Dismissal of Citation No. 7144409 14

The judge found that there was insufficient evidence to establish a violation of section
77.216-3(d)15 for Geo's alleged failure to record the abatement of hazards in the 7-day
impoundment examination report. 7/2/03 Order. He detennined that Geo' s impoundment
inspector ''very tersely'' noted "that the impoundment breakthrough had been plugged." 8/28/03
Order, at 5. The judge found that this notation sufficiently met the requirement that a 7-day
inspection report include, among other things, a report of the action "taken to abate hazardous
conditions." Id. at 4-5.
The Secretary asserts that the judge erroneously dismissed Citation No. 7144409 because
he found that the Geo inspector's report stated that the impoundment breakthrough had been
plugged when it simply did not mention any abatement measure. Geo responds that the judge
correctly dismissed the citation.
The 7-day report does not state that the impoundment breakthrough had been plugged, as
the judge incorrectly held. Gov' t Ex. 10. The report makes no mention of plugging or stopping
the breakthrough that had occurred a day earlier. Id. The report only indicates that "all water and
some fines were lost from shmy pool due to mine breakthrough." Id. Therefore, we conclude
that the judge erred. 16
We are not persuaded by Geo's assertion that its inspector did not have to mention any
abatement measure because there was no hazard at the time of the inspection. Section 77.2163(d) requires that the momtoring report include "the action taken to abate hazardous conditions."
The plain language of the standard requires a reporting of''the action taken." Thus, wider the
standard's plain meaning, actions in the past, or at least since the last report 7 days ago, should be
recorded. Additionally, the Secretary's interpretation of reporting actions taken since the last 7day report provides a comprehensive picture of the impoundment from week to week. Ifone
were to accept Geo' s interpretation that it was required to report only hazards that existed at the
time of the inspection, significant events would not have to be mentioned. Such a result would
thwart the safety-promoting purpose of the standard and the Mine Act and must be avoided.
Consolidation, 15 FMSHRC at 1557.

14

Chairman Duffy and Commissioner Jordan join Commissioner Young in Part II.B of
this opinion.
15

30 C.F.R § 77.216-3(d) provides in pertinent part: "All examination and
instrumentation ~onitoring reports ... shall include a report of the action taken to abate
hazardous conditions."
16

As discussed in the preceding analysis, the judge did have an opportunity to hear all of
the Secretary's evidence relating to Citation No. 7144409 prior to finally dismissing the claim on
August 28, 2003. Accordingly, we reject the Secretary's assertion that the judge committed a
procedural error in granting the partial dismissal.
28 FMSHRC 258

Of course, here, we note that MSHA issued an order pursuant to section l 03(k), 30
U.S.C. § 813(k), at 9:00 on the morning following the breakthrough, and issued nine
modifications of that order over the next several days. MCC Ex. CC. Consequently, not only
was MSHA apprised of the ongoing abatement activity during the operative time period, the
order required MCC to seek permission from the agency before each phase of the abatement
could proceed. Thus, MCC was complying with the spirit, if not the letter; of the requirements of
section 77.216.
Nevertheless, because the inspection report does not state that the impoundment
breakthrough was abated, we reverse the judge and find a violation based on undisputed
evidence. American Mine Services, Inc~, 15 FMSHRC 1830, 1834 (Sept. 1993) (remand
unnecessary because evidence justified only one conclusion). In remanding the matter for an
assessment of a civil penalty under Mine Act section 1 lO(i), 30 U.S.C. §"820(i), we note that this
is a bookkeeping violation of a de minimis nature, given that MSHA was at the scene the day
after the failure, and because of the agency's·ongoing awareness of all abatement efforts
undertaken under the aegis of the section 103(k) order in force when this report was required to
be written.
C.

Citation No. 7144401
1.

Violation17

The judge fowid that MCC violated section 77.216(d) by failing to report unusual
changes in water flow qtlantity from the South Mains Portal during Sept~ber 1999, as required
by the Impoundment Sealing Plan. 26 FMSHRC at 46-47. He determined that the lmpoundment
Sealing Plan required the operator to report unusual flows to MSHA. Id. at 38, 46. He reasoned
that the record was clear that there was a large increase in flow that occurred approximately a
year prior to October 2000 and that neither MCC nor Geo evaluated or reported the flow data.
Id. at 47. The judge determined that a "prudentu look at the data would have provided a warning
that further study of the condition was warranted and that "much more could and should have
been done here." Id. He also found that the failure to evaluate the South Mains Portal flow data
contributed in some measure to the magnitude and timing of the impoundni.ent failure. Id.
MCC asserts that the judge committed error in finding that the reporting provision, which
was part of the short-tenn May Plan, was a requirement of the permanent lmpoundment Sealing
Plan. It also argues that the judge's determination of violation is not supported by substantial
evidence. The Secretary responds that substantial evidence supports the judge's finding that
MCC failed to report an "unusual" change in water flow. She maintains the text of the
Impoundment Sealing Plan plainly requires monitoring of the South Mains. Additionally, the
Secretary urges that her interpretation, that such monitoring was required under the Impoundment
Sealing Plan, was reasonable and entitled to deference.

17

Chairman Duffy joins Commissioner Young in Part II.C.1 of this opinion.
28 FMSHRC 259

Turning to MCC's first argument, we address whether the South Mains reporting
requirement is part of the Impoundinent Sealfug Plan. The South Mains reporting requirement is
found under the heading "Short-Term Plan" in the May Plan, which is incorporated into and
designated as an appendix to the August Plan. MCC Ex. Al, at 012303. The judge found that
the May Plan was part of the August Plan when he stated that the May 1994 plan "became an
Impoundment Sealing Plan that was approved by MSHA on October 20, 1994." 26 FMSHRC at
38. Substantial evidence supports this preliminary determination. 18
·
MSHA Inspector John Fredland, who has reviewed impoundment plans for 20 years,
testified that ''when a plan is approved in stages, the previous plan stays in effect and the new
plan just covers changes" (Tr. 25, 223, 306), and that a long-term plan does not supercede a
shorter-term plan, unless express changes are submitted. Tr. 305-06. Inspector Bellamy also
considered the May short-term plan in effect and advised MCC to continue taking readings of the
South Mains when he noticed that it had missed a few in 1999. Tr. I 592, 599-601~ 627-28. In
addition, MCC' s actions support the view that the plan required South Mains monitoring because
MCC eontinued to monitor the point after the August Plan was in place. Gov' t Ex. 6.
It was within the judge's province to weigh the evidence and make any credibility
determinations. In re: Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC
1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)).
The judge found, in agreement with the testimony of the MSHA inspectors, that "since the
monitoring requirement has never been removed from the Impoundment Sealing Plan, the
requirement is still present." 26 FMSHRC at 38. See Metric Constructors, Inc., 6 FMSHRC
226, 232 (Feb. 1984) (providing that when a judge's finding rests on credibility determination,
Commission will not substitute its judgment for that ofjudge absent clear indication of error),
affd, 766 F.2d 469 (11th Cir. 1985).

The judge also determined that the plain language in the May Plan required weekly
monitoring of the South Mains to continue. 26 FMSHRC at 38. He pointed to the text, which
said: ''Flow from the South Mains entry will be monitored daily until remedial work at the
seepage point is completed. Monitoring will be done during regular impoundment inspections
after that." Id. (emphasis original). He reasoned that the phrase "after that" indicated
monitoring was to continue after the short-term remedial measures and, since the monitoring

18

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A){ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co. , 11 FMSHRC 2 159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U .S. 474, 488 (1951)).
28 FMSHRC 260

.

.

requirement was never removed from the Impoundment Pl~ the requirement remained. Id.
This holding is supported by the aforementioned testimony of MSHA witnesses.
The judge's holding is consistent with other language in the plan, which states that MCC
was to continue to monitor the area of the breakthrough and the discharge points. MCC Ex. Al,
at 012292. The South Mains was the major discharge location in the 1994 breakthrough and, as
MCC witness Muncie testified, it was "the lowest elevation point of the lmpoundment so if
anything was amiss the South Mains discharge would be a good indicator of a problem that
needed investigation." Tr. 1180. Thus, from a practical standpoint it made sense to continue to
monitor this point.
As the judge found: ''The pwpose of the Plan was to contain the risk of failure of the
pool structure as the pool level increased. The requirement for monitoring the flow of water
from South Mains Portai was included in the Plan for the purpose of alerting responsible parties
to the level of risk posed by the impoundment as time passed." 26 FMSHRC at 46. Thus, we
agree with the judge that the requirement to monitor the South Mains and to report any unusual
changes in flow quality or quantity that would indicate possible impoundment leakage to MSHA
was part of the permanent Impoundment Sealing Plan.

With regard to ~e judge's conclusion·that MCC violated the plari provision by failing to
report unusual changes in water flow to MSHA, we believe that a remand is necessary. At the
outset, we agree in large part with the basic approach taken by the judge to.address the issue of
whether a violation occurred. In particular, we agree with the judge that MCC should have··
assessed the water flow levels at the South Mains Portal with a heightened degree of scrutiny
given the prior impoundtnent failure and the fact that "as the pool .level rose the risk of failure
rose." Id. at 47. As the judge stated, "[i]n the context of this increasing risk of impoundment
failure, I would expect a reasonably prudent mining engineer to pay increasing attention to
warning which might have been derived from the South Mains Portal flow data properly
appreciated." Id.
·
However, we cannot uphold the judge's decision because he failed to explain what test he
applied in determining whether ''unusual changes" took place, to explain how he weighed
competing testimony in the record, to make explicit findings to support his conclusion that a
violation occurred, and to set forth a discernible path that allows the Commission to perfonn its
review function.
The Commission requires that a judge analyze and weigh all probative record evidence,
make appropriate findings, and explain the reasons for his or her decision. Mid-Continent, 16
FMSHRC at 1222. The D.C. Circuit has explained that, "[p]erhaps the most essential purpose
served by the requirement of an articulated decision is the facilitation ofjudicial review."
Harborlite Corp. v. lCC, 613 F.2d 1088, 1092 (D.C. Cir. 1979). Without nndillgs of fact and
adequate justification for the conclusions reached by a judge, we cannot perform our review
function effectively. Anaconda Co., 3 FMSHRC 299, 300 (Feb. 1981) (citations omitted).

28 FMSHRC 261

As an initial matter, the judge does not clearly explain what test he used to determine
whether the Impoundment Plan was violated and how he applied any such test. In particular, he
does not define the key phrase "unusual changes" in the context of the Impoundment Plan and
does not explain how this definition is linked to his ultimate conclusion that MCC violated the
Plan. The closest that he comes to setting forth a definition of''unusual changes" is his statement
that "[w]eekly and even monthly changes in the flow amount, in the absence ofwater quality
changes or catastrophic increases in quantity, were probably meaningless to the people who
reviewed the information." 26 FMSHRC at 47 (emphasis added). However, the judge does not
explicitly apply this formulation as his test. Moreover, he states that "[i]t is significant that there
was no change in the water quality, i.e., no coal refuse fines were being transported by the
increased water flow" (id. at 40-41 ), and he nowhere finds that any increases in water flow were
"catastrophic," nor does he explain or define that term. This language appears to be dicta, as the
standard merely requires reporting of''unusual" changes, not "catastrophic" shifts. The judge's
observation concerning the meaning attached to "[w]eekly and . . . monthly chang~ in the flow
amount" is at odds with his conclusion that he would have expected a reasonably prudent mining
engineer to more closely observe the flow data from the South Mains Portal. Id. at 47.

Beyond this, the judge failed to adequately address the evidence before him, to explain
how he weighed the competing testimony in the record, and to make necessary factual findings.
The relevant part of the judge's opinion discussing the question of whether a violation occurred
(id. at 46-47) contains no citations to any testimony, contains no credibility determinations, does
not attempt to resolve the competing testimony in the record, and contains no findings that
provide a clearly discernible basis for the conclusion that a violation occurred. In particular,
although the judge concluded that the plan had been violated in some manner, he never explicitly
found anywhere in his opinion that MCC had failed to report ''unusual changes" in water flow to
MSHA, which is the precise matter at issue here.
Similarly, while there is extensive documentary and testimonial evidence showing a sharp
and sustained increase in flows from the South Mains Portal, and while the judge noted the
context created by the 1994 breakthrough, the judge does not otherwise adequately explain what
path he followed to reach his conclusion that a violation occurred. It is highly significant that
perhaps the most important sentence in his opinion is badly garbled and is not even a complete
sentence. The judge states at one point: ''While I am persuaded by the testimony that the Fall
1999, flow data (even when related to various sources ofrain fall information) does not prove
that the failure began then or even at any particular time [sic].,, Id. at 47. Key words were
obviously omitted from this "sentence," but we can only guess what they were and what the
judge intended to say. Because of the uncertainty of what the judge attempted to say in this
pivotal sentence and the surrounding text, a remand is warranted.
In summary, because the judge's opinion fails to articulate the basis for his conclusion
and omits necessary findings, we cannot affirm it. Although we take no position on whether the
record demonstrates that there were ''unusual changes" in water flow that should have been
reported by MCC, the judge's opinion falls far short of providing adequate support for his
conclusion that the Plan was violated. We hereby remand this issue so that another judge can

28 FMSHRC 262

...,

review the evidence in detail and provide a coherent discussion of the legal issues involved.
If the judge finds a violation, further analyses of the S&S nature and the unwarrantable failure of
the violation will be warranted. The judge erred in his discussion of both the S&S and
unwarrantable failure issues, and so we provide the following instruction.

2.

S&S 19

Although the Commission's test for an S&S violation is mentioned in a preliminary
discussion in the decision. the judge did not address the S&S designation for ~e violation. 26
FMSHRC at 43-44, 47 (citing Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)). He merely
stated that the failure to evaluate the South Mains Portal flow data contnouted in some measure
to the magnitude and timing of the impoundment failure. Id. at 47.
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 particular facts
surrounding the violation. there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat '/ Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In Mathies, the Commission further explained:

In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypmm, the
Secretary of Labor must prove: (1) the underlymg violation of a
mandatory safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably 'serious nature.
6 FMSHRC at 3-4 (footnote omitted).
The judge never tnade :findings as to whether the violation was S&S. Under Commission
Rule 69(a), the judge is responsible for addressing "all :findings of fact and conclusions of law,
and the reasons or bases for them, on all the material issues of fact, law or discretion presented by
the record." The parties .contend that the judge made findings that support each of their
respective views. The Secretary states that the judge found the first two elements of the Mathies
test whereas MCC argues that the judge did not find the violation to be S&S. Without explicit
:findings by the judge, it is impossible to evaluate his decision on this issue.
The Commission requires that a judge analyze and weigh all probative record evidence,
make appropriate :findings, and explain the reasons for his or her decision. Mid-Continent, 16
FMSHRC at 1222. "Without :findings of fact and some justification for the conclusions reached
19

Chairman Duffy and Commissioner Jordan join Commissioner Young in Part Il.C.2 of
this opinion.
28 FMSHRC 263

by a judge, we cannot perform our review function effectively." Anaconda, 3 FMSHRC at 300.
Accordingly, if the judge newly assigned to this case finds a violation of section 77.216(d), we
remand for a full Mathies analysis of whether the violation of section 77.216(d) contained in
Citation No. 7144401 is S&S.
3.

Unwarrantable Failure. Negligence. and Penalty2°

The judge found that the violative conduct did not amount to an unwarrantable failure "in
the sense of wanton or reckless disregard for the risks to life and property." 26 FMSHRC at 4 7.
He assessed the negligence as moderate, found the $55,000 penalty proposed by the Secretary to
be excessive and assessed a penalty of $5,500. Id. at 47, 49-50.
The Secretary argues that the judge erred in finding that the violation of section 77.216(d)
was a result of moderate negligence and not an unwarrantable failure. She conten~ that, instead
of applying the Commission's test, the judge applied an incorrect unwarrantable failure test when
he stated that MCC's conduct was not ''wanton or reckless disregard for the risks to life and
property." Id. at 47. The Secretary also asserts that the judge erred in assessing the penalty for
the violation because he failed to: (1) make findings with respect to three of the six statutory
criteria under section 11 O(i) of the Mine Act; and (2) explain why he reduced the proposed
penalty by 90%. MCC submits that the judge's moderate negligence finding is erroneoust as
MCC was not negligent with regard to this violation. It also argues that the Commission should
not overturn the j udge's determination of no unwarrantable failure and that the Secretary's
argument is hypertechnical. In addition, MCC contends that the judge's penalty reduction is
supported by the evidence.
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack ofreasonable care." Id. at 2002-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek, 52
F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). The
Commission examines various factors in determining whether a violation is unwarrantable,
including the extent of a violative condition, the length of time that it has existed, whether the
violation is obvious or poses a high degree of danger, whether the operator has been placed on
notice that greater efforts are necessary for compliance, and the operator's·efforts, :inade prior to
the issuance of the citation or order, in abating the violative condition. Mullins & Sons Coal Co.,
16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261.(Aug. 1992);
Quin/and Coals, fnc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596,
1603(July1984); Midwest Material, 19 FMSHRC at 34; Enlow Fork Mining Co., 19 FMSHRC

° Chairman Duffy and Commissioner Jordan join Commissioner Young in Part II.C.3 of

2

this opinion.
28 FMSHRC 264

5, 11-12, 17 (Jan. 1997). All of the relevant facts and circumstances of each case must be
examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances
exist. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).
The judge failed to utilize the Commission' s established test for unwarrantable failure.
Notwithstanding MCC's argument, the judge's error was more than semantic. "Wanton" is
defined as "[u]measonably or maliciously risking harm while being utterly indifferent to the
consequences. In criminal law, wanton usu[ally] connotes malice . .. , while reckless does not."
Black's Law Dictionary 1613 (8th ed. 2004). ''Wanton" involves an element of malice, which is
simply not required for a finding of unwarrantable failure. Malice denotes much more than
aggravated conduct. Thus, the judge utilized too demanding a standard for unwarrantable failure.

In addition, the judge failed to examine any of the factors referred to above that the
Commission reviews when determining whether a violation is a result of unwarrantable failure.
As we noted earlier, the Commission requires that a judge analyze and weigh all probative record
evidence, make appropriate findings, and explain the reasons for his or her ~ecision. MidContinent, 16 FMSHRC at 1222. Given the absence of any meaningful findings, we remand the
determination of negligence and unwarrantable failure, again, should a violation of the standard
be found. 21
As to the penalty, the Commission's judges are "accorded broad discretion in assessing
civil penalties under the Mine Act." Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986).
Such discretion is not unbounded, however, and must reflect prope~ consideration of the penalty
criteria set forth in section l lO(i) and the deterrent purpose of the Act.22 Id. (citing Sellersburg
Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984)). The

21

Because of the close relation between unwarrantable failure and negligence, on
remand, if the judge finds a violation, he must make a complete analysis of unwarrantable failure
under the correct standard and determine the proper level ofnegligence attributable to the
violation See Emery, 9 FMSHRC at 2001 (reasoning that unwarrantable failure constitutes more
than ordinary negligence).
·
22

Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties
under the Act:
[ 1] the operator's history of previou:s violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator' s ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 u.s.c. § 820(i).
28 FMSHRC 265

judge must make "[f]indings of fact on each of the statutory criteria [that] not only provide the
operator with the required notice as to the ba8is upon which it is being assessed a particular
penalty, but also provide the Commission and the courts ... with the necessary foundation upon
which to base a detennination as to whether the penalties assessed by the judge are appropriate,
excessive, or insufficient." Sellersburg, 5 FMSHRC at 292-93. "[A]ssessments lacking record
support, infected by plain error, or otherwise constituting ·an abuse of discretion are not immune
from reversal." U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). In reviewing a judge's
_penalty assessment, we must determine whether the judge's findings with regard to the penalty
criteria are in accord with these principles and supported by substantial evidence.
The judge analyzed only three of the penalty criteria, finding that MCC is a large
operator; that the $55,000 penalty MSHA proposed would not hinder MCC's ability to stay in
business; and that MCC's negligence in failing to report changes in the South Mains water flow
quantity was moderate. 26 FMSHRC at 36, 47. Because we are remanding the issue of
unwarrantable failure, we vacate the judge's finding on negligence. · In addition, the judge failed
to address three other penalty criteria: the gravity of the violation; MCC' s history of violations;
and MCC's demonstrated good faith in attempting to achieve rapid compliance after notification
of the violation.23
Accordingly, if a violation is found, we direct the judge on remand to address fully all six
elements of the penalty criteria
D.

Citation No. 714440824

The judge found that both MCC and Geo violated section 77.216-4(a)(7)25 by not
referring to the underground seals construction in the annual reports and failing to provide
certifications for the seals in those reports. The judge rejected Geo' s argument that it had no
certification responsibility since it did not perform widerground engineering. 26 FMSHRC at 48.
The judge reasoned that even though Geo did not work underground, that was not a reason to
omit underground features in the annual certification and that a certifying engineer should have at
least noted the exclusion of the underground seals so that a supplementary certification of the

23

The judge also failed to explain in any detail why he reduced the penalty significantly
from $55,000 to $5,500. As stated in Douglas R. Rushford Trucking, 22 FMSHRC 598, 601
(May 2000), an explanation for a substantial divergence between the Secretary's original penalty
proposal and the judge's penalty assessment is "particularly essential."
24

Chairman Duffy joins Commissioner Young in Part 110 of this opinion.

25

Section 77.216-4(a) provides in pertinent part that "every twelfth month following the
date of the initial plan approval, the person owning, operating, or controlling a water, sediment,
or slurry impoundment ... shall submit to the District Manager a report containing the following
information: ... (7) [a] certification by a registered professional engineer that all construction,
operation, and maintenance was in accordance with the approved plan."
28 FMSHRC 266

seals could have been obtained. Id. The judge concluded that the degree of negligence was very
low and assessed a civil penalty of $100 each for both MCC and Geo. Id. at 48-50. MCC did
not appeal the determination that it violated the certification requirement.
Geo argues that the judge erred in finding a violation against it because it was cited for a
task, i.e., certifying the seals, that it was not hired to do and for something over which it had no
control. It contends that the Secretary abused her enforcement discretion in citing it for the
violation, when it is not ''the person owning, operating, or controlling a water, sediment, or slurry
impoundment" under section 77.216-4(a).26 The Secretary responds that Geo, as an .independent
contractor, qualifies ~ a person operating an impoundment under the plain language and
meaning of section 77.216-4(a). The Secretary asserts that if the standard is deemed ambiguous,
her interpretation is reasonable and entitled to deference. Additionally; the Secretary argues that
substantial evidence supports the judge's finding that Geo was properly cited for the violation.
The threshold question with regard to this violation is who was required to tifo the annual
report mandated by section 77.216-4(a). The judge erred by never analyzing the plain terms of
section 77.216-4(a) to answer this question. Dyer, 832 F.2d at 1066 (citing Consumer Prod~cts
Safety Comm 'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (holding that the "language of a
regulation . .. is the starting point for its interpretation,,). The language of the standard imposes
the annual reporting requirement on ''the person owning, operating, or controlling" an
i.mpoundment and states that this person will submit ''a report" to the MSHA District Manager.
30 C.F.R § 77.216-4(a) (emphasis added). Thus, the standard itself contemplates that a single
person - the one owning, operating, or controlling the impoundinent - is responsible for the
submission and validity of a single annual report.
Further examiniilg the regulatory language, we note that the phrase " owning, operating or
controlling'' is not defined in the regulation. Thus, we consider the ordinary meaning of the
words. Lopke Quarries; Inc., 23 FMSHRC 705, ·7 08 n.2 (July 2001). "Own[ing]" is defined as
having ' 'rightful title to." Webster's Third New Int 'I Dictionary (Unabridged) (1993) at 1612.
"Operating" is defined as "perform[ing] a work or labor; .. . manag[ing] and ... keep[ing] in
operation; . . . engaged in active business." Id. at 1580-81. "Controlling'~ is "exercis[ing]
restraining or directing influence over." Id. at 496-97. Because we determine that the language
of the regulation is plain, we need not address the Secretary' s arguments that her interpretation of
the standard is entitled to deference. Exportal, 902 F.2d at 50.

26

The Secretary argues that Geo failed -to raise before the judge the contention that
section 77 .216-4(a) does not apply to it because Geo is not a '1>erson owning, operating or
controlling" an impoundment. Although it is true that Geo did not explicitly raise the argument
below, the argument is sufficiently intertwined with Geo's assertions to the judge that it was not
the operator of the impo\Jndment and should not be cited under the standard, such that the issue
is properly the subject of review. Beech Fork Processing, Inc., 14 FMSHR.C 1316, B 19-21
(Aug. 1992).
28 FMSHRC 267

It is undisputed that MCC owned the Big Branch Slurry Impoundment. The record
demonstrates that MCC was also responsible for managing the impoundment, for keeping it in
operation on a day-to-day basis, and for controlling it. For example, the record reveals that the
Superintendent of the adjacent MCC preparation plant, an MCC official, was responsible for the
daily operation of the impoundment and the disposal ofre.fuse from the plant into the
impoundment. Tr. 1257. Among other things, the MCC Superintendent, Lany Muncie, had
overall responsibility for carrying out the Impoundment Sealing Plan (Tr. 1167), for monitoring
the condition of the impoundment (Tr. 1150), and for ensuring that the refuse went to the proper
locations (Tr. 1150). He also decided whether and when to pump clear water from the
impoundment to the preparation plant. Tr. 1188-90. He assigned each shift foreman to inspect
the impoundment during each shift and to look for leakage, boils, erosion, or anything else
abnormal. Tr. 1178. Muncie also personally inspected the impoundment at least once during
each shift that_he worked (Tr. 1206-07) and personally inspected the South Mains Portal at least
three times per week (Tr. 1178). Jn addition, he reviewed the 7-day monitoring reports submitted
to him by Eddie Howard, a Geo employee; signed the reports to finalize them; and was
responsible for deciding whether problems raised by the reports needed to be addressed. Tr.
1151-1154. Thus, under the plain terms of section 77.216-4(a), MCC was clearly ''the person
owning, operating, or controlling" the impoundment. As a result, MCC was solely responsible
under section 77.216-4(a) for submitting the annual report to MSHA.27

The record also reveals that Geo was hired by MCC as an engineering consultant to
monitor the condition of the impoundment and to provide annual certifications covering the
Impoundment Sealing Plan. Tr. I 693-694, 762-763; Gov't Ex. 9. Geo, as the engineering
consultant, prepared the annual reports for 1995 through 2000 on behalf ofMCC. Gov't Ex. 9.
Each report contained a description of the construction that MCC had undertaken during the
preceding year, certain monitoring results from the impoundment, and certification by a
registered engineer from Geo that, during the preceding year, all construction and maintenance
activities had been carried out in accordance with approved plans. Tr. I 110-111; Gov't Ex. 9.
Each year the reports, which expressly stated that they were prepared "on behalf of' MCC (Gov't
Ex. 9), were initially submitted by Geo to MCC. Tr. I 117. Subsequently, MCC would either
submit the report to MSHA itself or request that Geo send it directly to MSHA on its behalf. Tr.
I 117-118. Accordingly, Geo's duties encompassed far less than controlling or operating the
impoundment itself as contemplated by the standard. Geo, the registered engineer hired by MCC

n Indeed, as mentioned above, MSHA issued a citation to MCC alleging that the annual
report was defici~nt because it did not contain a certification addressing the underground seals as

required by section 77.216-4(a)(7). Citation No. 7144404. MCC did not appeal the judge's
decision upholding that citation. We note that the judge incorrectly stated that Citation Nos.
7144404 (against MCC) and 7144408 (against Geo) pertained to the seal certification for 1995,
when, in fact, the citations covered all reporting periods after the mine seal work was completed
in 1996. 26 FMSHRC at 48.
28 FMSHRC 268

..
to conduct certain monitoring and to make certifications, was not ''the person owning, operating,
or controlling" the impoundment. Thus, section 77.216-4(a) is inapplicable to Geo in this case.28

We also reject the Secretary's argwnent that Geo is covered by the standard because as an
independent contractor, it is generally considered an "operator" under the Mine Act. Section 3(d)
of the Mine Act defines an "operator" as including an ''independent contractor performing
services" at a mine. 30 U.S.C. § 802(d). The Secretary's argument lacks merit because section
77.216-4(a) does not contain the word "operator."29 Instead, the regulation applies to ''the person
owning, operating, or controlling" the impoundment. If the Secretary intended for the statutory
definition to apply, she could have simply used the term "operator" or defined the term
"operating" in section 77.216-4(a) to include independent contractors. Indeed, the fact that the
Secretary did not expressly include those terms in light of the well-known definition of
"operator" leads us to conclude that something other than the statutory definition of "operator"
applies in section 77.216-4(a).
Likewise, the Secretary's use of the term "operator" in the preamble to the rule does not
establish that all independent contractors fall under the reach of the standard. . 57 Fed. Reg. 7468,
7469-70 (Mar. 2, 1992). First, a preamble is ''not officially promulgated" and does not take
precedence over the express words of the regulation. See King Knob Coal Co., Inc., 3 FMSHRC
1417, 1420 (June 1981) (quoting HB. Zachry v. OSHRC, 638 F.2d 812~ 817 (5th Cir. 19Sl)
(providing that "the express language of a statute or regulation 'unquestionably controls' over
material like a .. . manual"). Under the plain terms of section 77.216-4(a), only "the person
owning, operating, or controlling" the impoundment would be subject to the annual reporting

Our dissenting colleague disc~es Geo's monitoring and certification duties and then
concludes, without elaboration, that these duties constituted ''manag[ing] and . . . keep[ing] in
operation" the impoundment. Slip op. at 32. Among other things, this conclusion ignores the
fact, as discussed above, that MCC owned the impoundment, operated it on a day-to-day basis,
and made all final decisions regarding what actions should be taken at the impoundment.
Moreover, the case cited by the dissent, Bituminous Coal Operators' Assoc., Inc. v. Sec'y of
Interior, 547 F.2d 240, 246 (4th Cir. 1977), does not .support the position that Geo was operating
or controlling the impoundment. In that decision, the court held that construction companies that
are excavating and constructing portions of an underground mine are "controlling or supervising"
a mine within the meaning of the Mine Act. Id. By contrast, the record in this case contains no
evidence that Geo, an engineering consultant, engaged in any excavation or construction
activities, supervised any MCC employees who were doing so, or otherwise supervised the
operation of the impoundment.
28

29

Even if section 77.216-4(a) applied to "operators" of an impoundment, which it does
not, MSHA apparently did not cite Geo because it was the "operator" of the Big Branch
impoundment. MSHA Engineer Theodore Betoney, the MSHA official who issued Citation No.
7144408 to Geo, was as~ed by the judge if he was suggesting that Geo was the "operator" of the
Big Branch impoundment. Betoney answered ''No." Tr. 647.
28 FMSHRC 269

requirement. Second, nowhere does the preamble expressly state or even imply that the rule
applies to independent contractors. ·
Finally, the position that Geo could be cited as an independent contractor for violating
section 77.216-4(a) ignores the specific nature of that standard. Section 77.216-4(a) creates an
annual reporting requirement that, by its terms, is applicable to "the person owning, operating, or
controlling" the impoundment (emphasis added). For purposes of this case, such a narrowly
prescribed reporting requirement is very different from a more broadly worded, non-reporting
safety standard. With regard to such a general safety standard (e.g., "Machinery and equipment
shall be operated only by persons trained in the use of and authorized to operate such machinery
or equipmenf'),30 the responsibility for complying with the standard can rest with the production
operator, an independent contractor, or both, depending on the circumstances. But the
responsibility for complying with a specific reporting requirement such as that in section 77.2164(a) rests solely with the person designated by the standard to submit the report, ab~ent explicit
regulatory language providing otherwise.
Under section 77216-4(a), MCC was solely responsible for submitting the annual report,
including engineering certifications, as ''the person owning, operating, or controlling'' the Big
Branch impoundment. Therefore, we reverse the judge's finding of violation against Geo and
vacate Citation No. 7144408.
E.

Citation No. 714441<>3 1

The judge dismissed Citation No. 7144410, which alleged that Geo failed to include the
readings for the South Mains portal outflow pipe in the annual reports under section
77.216-4(a)(2).32 26 FMSHRC 48-49. He reasoned that the critical issue was whether the South
Mains portal outflow pipe combined with a ruler constituted an "instrument" for purposes of this
regulation, and therefore the readings had to be listed in an annual report submitted to MSHA.

30

30 C.F.R. § 77.404(b).

31

Chairman Duffy and Commissioner Jordan join Commissioner Young in Part Il.E of
this opinion.
32

Section 77.216-4(a) provides in pertinent part:
[E]very twelfth month following the date of the initial plan
approval, the person owning, operating or controlling a ... slurry
impoundment ... shall submit to the District Manager a report
containing the following information:
(2) Location and type of installed instruments and the maximum
and minimum recorded readings of each instrument for the
reporting period.
28 FMSHRC 270

Id. The judge found that the pipe was not an "instrument'' as it was not identified as such on the
plan view.33 Id.
The Secretary argues that the judge erred because he ignored the ordinary dictionary
meaning of the term "instrument," and because he failed to accord deference to the Secretary's
interpretation of her owh standard. Geo responds that the judge should be affirmed because the
drainage pipe was not an "instrument," as it was not listed as an "instrument" in the plan view.
Section 77.216-4(a) requires that the annual report to MSHA contain the "[l]ocation and
type of installed instruments and the maximum and minimum recorded readings of each
instrument for the reporting period." Both the parti~ and the judge overlook one of the plain
requirements of the standard: the instrument must be "installed." See Dyer, 832 F.2d at 1066
(providing that where the language of a regulatory provision is clear, the terms of that provision
must be enforced as they are written).
The evidence was undisputed that the Geo examiner utilized a ruler within a drainage
pipe to measure the outflows from the South Mains. This type of measuring device would seem
to fit the common definition of ''instrument." However, it clearly does not trigger the reporting
requirement of section 17.216-4(a)(2) because the ruler, which was carried by the examiner, was
not "installed" in any manner. Therefore, because only "installed" instrmi:ients are covered under
section 77.216-4(a)(2), we reject as unreasonable the Secretary's interpretation that the pipe and
ruler should be listed in the annual report and the resultant readings should be included in the
report. Accordingly, although we employ different reasoning, we affirm the judge's dismissal of
Citation No. 7144410 irl result.

DI.
Conclusion
With respect to Order No. 7144402 (redirecting the fines) against MCC, we vacate the
judge's dismissal of the order and remand consistent with the instructions in this decision. If the
judge finds a violation, additional analyses of whether the violation is S&S and a result of
unwarrantable failure will be necessary. As to Citation No. 7144409 (7-day report) against Geo,
we reverse the dismissal, find a violation, and remand for the assessment of a civil penalty. With
respect to Citation No. 7144401 (reporting of unusual changes in water flow) against MCC, we
vacate and remand the finding of a violation, the negligence finding, the S&S determination, the
unwarrantable failure determination, and the penalty determination. As to Citation No. 7144408
(certification of seals) against Geo, we reverse and dismiss. With respect to Citation No.
7144410 (inclusion of flow readings in the annual report) against Geo, we affirm in result the
33

A plan view is a detailed dimensional drawing of an impoundment. See, e.g., Jt. Ex. 2.
Plan views must accompany a proposed impoundment plan and be submitted to MSHA. 30
C.F.R. §§ 77.216 & 77.216-2.
28 FMSHRC 271

judge's dismissal. On remand, the judge may re-open the record to take additional evidence or
for further briefing, as needed.
·

·.

28 FMSHRC 272

Chairman Duffy, concurring:

I join Commissfoners Young and Jordan in vacating the judge's dismissal of Citation No.
7144402 and remanding the matter for further fact-finding. I would remand the "redirecting the
fines" issue to the newly assigned judge because it is unclear what analysis the judge below used
to conclude that no violation occurred. The judge concluded that the Secretary had failed to
make a prima facie case on this issue, but the judge's discussion is so incomplete and confused
that we can only guess as to the precise reasoning he used. Similarly, although it appears that the
judge attempted to apply the ''reasonably prudent person" test, there is no adequate explanation
of how he concluded that the.operator lacked sufficient notice of the interpretation relied upon by
the Secretary.
While I agree that this matter should be remanded, I am concerned about the majority's
approach to interpreting the provisions of the Impoundment Sealing Plan fu addressing this issue.
For example, the majority decision argues that the words of the plan provision in queStion are
clear and therefore that a "plain meaning'' approach must apply here. Slip op. at 9-11. However,
the question is not whether each discrete word within the provision has a .p lain meaning based
upon a review of dictionary definitions. Instead, the key question j.s whether it is cleat what the
statement "fine refuse shall be directed along the barrier by periodically redirecting the discharge
of fine refuse slurry" meant in the context of this case where each side believes that its
interpretation is consistent with the plain meanmg of the words in a mutually agreed upon plan
prov1s1on.
Although it is undisputed that the fines had to be periodically redirected, it is not clear
from the words alone precisely what the phrase ''periodically redirect" means here: Did MCC
have to periodically move the outlet pipe itself? Was it sufficient if MCC instead periodically
changed the direction in which the pipe was aimed without actually moving it? Was it sufficient
if fines were being periodically redirected by the natural water flows within the impoundment?
The issue is made even more complicated by the Secretary's position that the plan should.be
interpreted as requiring c~mpliance by "either physically moving the discharge pipe or using
some other method which covered the barrier with an adequate amount of fines to limit seepage
from the impoundment into the mine." S. Br. at 25 (emphasis added)~ What is an adequate
amount of fines? Were the fines required to cover every square inch of the seepage barrier?
How high along the rim of the impoundment were the fines required to reach? A plain meaning
analysis simply cannot resolve these kinds of questions. 34
Based on the foregoing, I think the conclusion is inescapable that the relevant words of
the plan provision are ambiguous and/or silent with regard to key issues raised by this case.
Because the plan provision is ambiguous and/or silent, the question is what is the correct
34

My purpose in writing a separate concurring opinion in this case is not to endorse ·any
particular answers to the questions I have raised above. Instead, my purpose is to demonstrate
that a ')>lain meaning'' approach to the words of the plan provision simply cannot be stretched to
work in this case.

28 FMSHRC 273

approach for the Commission to take in interpreting the provision. The majority opinion
incorrectly states that, because a plan provision is enforced as a mandatory standard, the same
rules of deference apply in interpreting a plan provision as would apply in interpreting a
mandatory standard promulgated by the Secretary, i.e., the Secretary's interpretation should be
upheld if it is reasonable. Slip op. at 8-9. As shown below, the majority's interpretive approach
directly contradicts established Commission case law and ignores the fact that plan provisions are
measures negotiated between MSHA and the operator,35 not regulations promulgated by the
Secretary.
The Commission has made clear that, in interpreting plan provisions, it will treat plan
provisions very differently from mandatory standards promulgated by the Secretary. With regard
to plan provisions, the Secretary has the burden of showing that a plan provision applies to an
operator and that the condition or practice in question violated the provision.36 Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1280-81 (Dec. 1998); Jim Walter Res., l_nc., 9
FMSHRC 903, ·906-08 (May 1987) ("JWR''). As stated in Harlan Cumberland, "When a plan
provision is ambiguous, the Secretary may establish the meaning intended by the parties by
presenting credible evidence as to the history and purpose of the provision, or evidence of
consistent enforcement." 20 FMSHRC at 1280 (footnote and citation omitted). In JWR, the
Commission ruled that the Secretary had failed to meet his burden in upholding his interpretation
of a plan provision, where (1) the record contained "no detailed and consistent testimony from
the Secretary' s witnesses illuminating the meaning of the ... provision" and (2) "the Secretary
presented no evidence of any prior consistent enforcement ofthe . .. provision that might have
established that [the operator] was on notice regarding the Secretary's interpretation of the

35

As explained by the Commission, "[t]he ultimate goal of the approval and adoption
process is a mine-specific plan with provisions understood by both the Secretary and the operator
and with which they are in full accord." Jim Walter Res., Inc. 9 FMSHRC 903, 907 (May 1987)
("JWR").
3

6The majority decision cites Energy West Mining Co., 17 FMSHRC 1313, 1317 (Aug.
1995), for the proposition that plan provisions are interpreted in the same way as regulatory
standards. Slip op. at 9. However, the majority greatly overstates the authority ofEnergy West,
which simply states that plan provisions are "enforceable" as mandatory standards, but does not
discuss the controlling Commission case law on burden of proof and deference in the context of
plan provisions. The principle that the Commission should not defer to the Secretary's
interpretation of plan provisions as though they were promulgated standards is underscored by
the nature of the plan provision involved here. The provision was set forth in a bid proposal by
an independent co~tor that was subsequently submitted to MSHA and ultimately approved as
the Impoundment Plan. Obviously much less deference is due to the Secretary's interpretation of
a bid proposal drafted by a third party than in the case of a regulatory standard tliat is drafted and
proposed by the Secretary, subjected to notice and comment rulemaking, and published as a
provision of the Code of Federal Regulations.

28 FMSHRC 274

meaning of the provision." 9 FMSHRC at 907-08. See also Harlan Cumberland, 20 FMSHRC
at 1281.
Accordingly, on remand, I believe the judge must determine whether the Secretary has
met her burden of demonstrating the meaning of the plan provision in question through evidence
of the history of the provision, e.g., contemporaneous memos or letters, testimony of persons
involved in the negotiating and approval process, opinions from experts regarding whether the
words had a generally accepted technical meaning, or evidence of consistent enforcement.
Furthermore, as explained in JWR, 9 FMSHRC at 908, the operator must have been adequately
put on notice as to MSHA' s intended meaning. Thus, a proper analysis based on the "reasonably
prudent p~rson" test (see U.S. Steel Mining Co., 27 FMSHRC 435, 438-44 (May 2005)) should
be conducted in conjunction with the analysis set forth in Harlan Cumberland and JWR.. Once .
the meaning of the plan provision has been properly determined, the judge should engage in factfinding to· ascertain whether MCC complied with the provision.
Finally, I am also concerned about certain language in the majority decisi~n stating that
compliance with the plan provision in question must be carried out in "an effective manner." ·
Slip op: at 10-11. Although I agree that the fines had to be redirected in a way that was fully
consistent with the intent of the plan provision - once that intent is determined - I believe that
there is a danger that "effectiveness" might be equated with whether or not a breakthrough of the
seepage barrier occurred. It is important to recognize that a breakthrough might have occurred
through natural forces even though the fines were distributed along the seepage barrier as well as
humanly possible. Conversely, the operator might have failed to comply with the plan provision
even though no breakthrough occurred. Moreover, the plan·itself stated that the seepage barrier
served two separate purposes: (1) to reduce seepage from the impoundment that could contribute
to the occurrence of another ·breakthrough; and (2) to provide bulk that would collapse if another
breakthrough were to octur and form a 'l>lug" that would limit the amount ofrefuse and water
entering the mine. MCC Ex. Al, at 012294. Thus, the plan itselfrecognized that a
breakthrough might occur even if fines were ' effectively" distributed along the seepage barrier.
4

Jn summary, I agree with my colleagues that the judge's d.e cision vacating Citation No.
7144402 should be reversed and remanded to the newly assigned judge. However, I would direct
that judge not to use a ''plain meaning" approach to interpreting the plan provision and instead to
follow established Comrilission precedents in ascertaining the meaning of the plan provision
intended by the parties.

28 FMSHRC 275

Commissioner Jordan, concurring in part and dissenting in part:
Although I join in the remainder of the majority opinion, I do not agree with the decision
of my colleagues to remand to the judge the issue of whether MCC violated the plan provision by
failing to report unusual changes in water flow to MSM nor in their reversal of the judge's
finding of violation against Geo for its failure to include references to the underground seals
construction in the annual certification reports.
A.

Citation No. 7144401 - Failure to Report Unusual Changes in Water Flow

I agree with the majority's ruling that the requirement to monitor the South Mains and
to report any unusual changes in flow or quality or quantity that would indicate possible
impoundment leakage to MSHA was part of the permanent Impoundment Sealing Plan. The
next question is whether substantial evidence supports the judge's finding that MC~ violated the
provision by failing to report unusual changes in water flow to MSHA and by failirig to
implement necessary remedial measures. The record revealed that from 1994 to September
1999, the average flow measurement from the South Mains was 5.5 niches. Gov't Ex. 1, at26
and Fig. 38; Tr. 298. In September 1999, the average flow rose to 8.6 inches. Gov't Ex. 1, at 26
and Fig. 38; Tr. 298-99, 811-15. The increase in flow represented a 56% increase in flow
depth.37 Tr. 502-03, 980-81. MSHA engineering expert Richard Almes testified that this change
represented a marked increase and was unusual. Tr. I 333-36; see also Tr. 1067-70. MSHA
Technical Support Inspector Fredland testified that the flow increase was significant and had
roughly doubled. Tr. 131. He also explained that, as the increase was not accounted for by
rainfall or other factors, the increase could indicate a possible leak in the impoundment. Tr. 13132, 244-45. I conclude that a 56% increase in flow that occurred approximately a year prior to
the October 2000 impoundment failure should be viewed as out of the ordinary, or "unusual."
It is true that evidence was introduced that calls this finding into question. MCC
Preparation Plant Superintendent Muncie and the weekly Geo examiner Howard testified that the
weekly data did not give them any indication of an unusual change, and its expert discerned no
changes that would have been cause for concern. Tr. 1218-19; Tr. I 222-24. MCC expert
engineer Chris Lewis reviewed the data and discerned no changes that would have given him
concern. Tr. I 889-90. Barry Thacker, President of Geo, also testified that the increase in flow
would have naturally occurred as the impoundment level increased. Tr. I 698-703, 780-81.
MCC introduced evidence that showed that other factors, such as surface run-off from the
surrounding watershed, affected the flow in the South Mains. MCC Br. at 9-10. MCC witnesses
testified that for an unusual change to happen, the color of the water had to darken, which did not
occur. Tr. I 68-69, 224, 464; 26 FMSHRC 35, 40-41(Jan. 2004) (ALJ). Additionally, MSHA
Inspector Bellamy, who regularly inspected the impoundment, also did not detect an unusual

37

The judge excluded evidence of converting the flow measurements from inches to
gallons per minute, which would establish an even greater increase in flow at the time of
September 1999. Tr. 838-39, 981.
28 FMSHRC 276

change in the weekly da~ and no citations were ever issued for failing to report an unusual
change to MSHA. Tr. I 568-69.
However, the Secretary effectively rebutted this evidence. For example, as to the South
Mains flow stemming from surface run-off, MSHA Inspector Fredland testified that the main
contributor to the South Mains Portal pond was the impoundment, and there was only a small
percentage of water coming from the mine or surface run-off. Tr. 226-28. MSHA witnesses also
testified that an unusual change would not necessarily involve darker water or particles in the
outflow because of the far distance between the impoundment and the South Mains portal and
because the solids would settle out before arriving at the South Mains. Tr. 601-03. The record
revealed, and the judge found, that MCC and Geo personnel never evaluated the readings over
time and so never perceived any change in the data. Tr. 300-02, 504; 26 FMSHRC at 47.
MSHA engineer Patrick Betoney testified that unless MCC or Geo monitored the flow by simply
plotting the data, there would be no way to monitor th~ flow accurately. Tr. 505, 626-28. He
believed this was especially important given the earlier breakthrough and one of the key items in
the plan was monitoring the flow data. Tr. 505. Similarly, MSHA expert Almes testified that
" any competent dam engineer . .. is very sensitive to seepage flows related to impoundments"
and even more "particularly" "because of a history of a major breakthrough." Tr. I 338.
As to the fact that the MSHA inspector also did not notice an unusUal change, MSHA
engineer Betoney testified that Inspector Bellamy was at the impoundment ori a very infrequent
basis - perhaps yearly. Tr. 628. He stated thaf the inspectors did not graph the flow, as they
were not there on a daily or weekly basis. Tr. 626. He testifi~ that an inspector·ensures that the
weekly inspection is performed in the first place and might look a few months back at the data,
but the inspector is not familiar enough with the impoundment to make an overall assessment of
the flow. Tr. 627-29. Irt addition, the Commission has repeatedly held that lack of previous
enforcement of a safety standard does not constitute a defense to a violation, and that estoppel
does not generally apply against the Secretary. U.S. Steel Mining Co., 15 FMSHRC 1541, 154647 (Aug. 1993) (citing King Knob Coal Co., 3 FMSHRC 1417, 1421-22(June1981); Bulk
Transp. Serv., Inc., 13 FMSHRC 1354, 1361 n.3 (Sept. 1991)).
Because the judge' s determination that MCC violated the plan provision requirements to
monitor the South Mains and report unusual changes to MSHA (26 FMSHRC at 38, 47) is
supported by substantial evidence, I would affirm his finding. See Island Creek Coal Co., 15
FMSHRC 339, 347 (Mar. 1993) (providing that Commission cannot overfuinjudge's findings
that are supported by substantial evidence). Consequently, I believe that a remand is
unnecessary. A remand to a new judge (which will be necessary because Judge Schroeder is no
longer with the Commission) is particularly inappropriate in this case, as the second judge did
not hear the live testimony of the witnesses, so he or she is in no better position than we are in
that regard, and will simply have to comb the record for relevant evidence, as bas already been
done here.
·
I also disagree with the majority's view that a remand is necessary because the judge
"never explicitly found anywhere in his opinion that MCC had failed to report 'unusual changes'

28 FMSHRC 277

in water flow to MSHA, which is the precise issue at question here." Slip op. at 16. On the
contrary, MCC conceded, and the judge found, that "[n]o unusual flows were reported to
MSHA." 26 FMSHRC at 46; Tr. 7. Furthermore, the judge explicitly found that "[o ]f particular
significance is the large increase in flow that occurred approximately a year prior to the October
2000, impoundment failure." 26 FMSHRC at 47.
Moreover, the majority insists on a remand because the judge did not clearly explain what
test he used to find a violation, and did not define the phrase ''unusual changes." Slip op. at 16. I
believe my colleagues are unnecessarily complicating this issue. I do not believe that any "test"
need be applied here, and I believe that the judge need not have defined ''unusual changes"
because the plain meaning of the term is fairly obvious to any reader.38
B.

Citation No. 7144408 - Failure to Reference Undergtound Seals Construction in
the Annual Certification Rcmorts

The majority's view that 30 C.F.R. § 77.216-4(a) does not apply to Geo is not consistent
with the wording of the regulation, nor with the evidence in the record. The standard at issue
provides in pertinent part that:
[E]very twelfth month following the date of the initial plan
approval, the person owning, operating, or controlling a water,
sediment, or slurry impoundment .. . shall submit to the District
Manager a report containing the following infonnation: ... (7) [a]
certification by a registered professional engineer that all
construction, operation, and maintenance was in accordance with
the approved plan.
30 C.F.R § 77.216-4(a). Even under the dictionary definition of the term "operating'' employed
by the majority, Geo fits squarely within the purview of this regulation.
The majority defines "operating'' as ''perform[ing] a work or labor; . . . manag[ing] and
.. . keep[ing] in operation; . . . engaged in active business." Slip op. at 21. Its own description
of Geo' s actions at the impoundment demonstrate that Geo was managing the operation there.

3

s I believe my colleagues confuse the judge's use of the term "catastrophic increases" in
his opinion. The judge stated that "weekly and even monthly changes in the flow amount, in the
absence of water quality changes or catastrophic increases in quantity, were probably
meaningless to the people who reviewed the information." 26 FMSHR.C at 47. I believe he
simply meant that.the water flow data reviewed by MCC and Geo were probably meaningless
viewed in a vacuum, and were only useful when compared to a long-term analysis of changes in
flow over a period of time, and that absent such a long-term analysis, the reviewers would only
have been alerted to problems if the water quality changed or if there were a catastrophic increase
in quantity. Nowhere did he indicate that a change in water flow would only be considered
''unusual" if it were "catastrophic."
28 FMSHRC 278

MCC hired Geo to take over the engineering consultant role, to perform weekly impoundment
monitoring, and to prepare impoundment annual reports and certifications. Slip op. at 4.
Furthermore, the majority recognizes that "Geo was hired .. . to monitor the condition of the
impoundment and to provide annual certifications covering the lmpoundment Sealing Plan."
Slip op. at 22. Yet in the next breath, and with no explanation or discussion whatsoever, it
simply offers the conclusory statement that "Geo's duties [were] far less than controlling or
operating the impoundment itself as contemplated by the standard." Id.
The evidence in the record does not support this assertion. As Geo itself explains, G. Br.
at 2, it performed weekly inspections from early 1996 through October 2000 (Gov't Ex. 6) and
prepared ann1:1al reports for the impoundment for 1996, 1997, 1998, 1999 and 2000. Gov't Ex. 9.
The weekly inspections covered a wide variety of conditions at the impoundment (Gov't Ex. 6),
and Geo performed on a weekly basis periodic observation of construction, density testing of the
compacted coarse refuse, and monitoring of the existing piezometers. Gov't Ex. 9. In particular,
Geo monitored the condition of the structure in regard to erosion, slope stability, cracks and
problems with the dam structure itself; monitored flows discharged from the internal drainS to
see if there were changes indicating a problem, monitored the elevation of the pool and the fines
around the embankment~ and monitored the conditions of the impound.Ii:ien~ itself along the
barrier. Tr. I 93-94. Geo's inspector was instructed to call Geo immediately if a change in the
water flow occurred so that Geo could implement a plan for fmther investigation. Tr. I 95-96. In
sum, Geo's "function was to look after the impoundment" Tr. 508. Geo' s extensive duties thus
consisted of ''manag[ing] and ... keep[ing] in operation" the impoundment, consistent with the
majority's definition of''operating." 39 In fact, the record does not reveal in any similar detail
oversight at the impoundment by MCC during that time frame that would constitute management
or operation of the facility. The tasks performed by Geo at the impoundment also support the
view that Geo was "controlling" the impoundment. See Bituminous Coal Operators' Assoc., Inc.
v. Sec'y ofInterior, 547 F.2d 240, 246 (4th Cir. 1977) ("(W]hen a construction company is
sinking a shaft, excavating a tunnel, or building a tipple, it is controlling or supervising a coal
mine ..."). In sum, the record reflects that MCC had, for the most part, delegated oversight of
the impoundment to Geo.

In addition, I reject Geo's argument, G. Br. at 11-15, that it should not have been cited for
its failure to certify the seals because it was not hired to do this task and was not permitted to
work underground. The judge correctly ruled that simply because Geo did not work underground
did not provide a valid reason for excluding underground features of an impoundment plan from
the annual certification if the features (in this case, the seals) were part of the plan.40 26

39

In light of this conclusion, I reject Geo's argument, G. Br. at 20-21, that the Secretary
abused her discretion in citing Geo, an independent contractor, as well as proceeding agairtst the
owner-operator, MCC.
40

Although Geo asserts that the seals were not part of the hnpoundment Plan, G. Br. at
7-11, the evidence does not support this contention. The seals were included in the plan
submitted on August 10, 1994, as part of the protection of miners against possible impoundment
28 FMSHRC .279

FMSHRC at 48. In its annual report and certification, Geo stated: "[W]e hereby certify that for
the [relevant] period . .. the Big Branch Slurry Impoundment was constructed and maintained in
general accordance with the approved plans and any recommended changes required to suit field
conditions consistent with the disposal concept." Gov' t Ex. 9, at MCC004261. This broad
statement could certainly lead any reasonable reader to assume that the seals had been examined.
I agree with the judge that a certifying engineer should have, at a minimum, noted the exclusion
of a feature from a submitted certification so that a supplement by another entity could have been
submitted. 26 FMSHRC at 48.
· ;·

In any event, the importance ofthe seals in ensuring the integrity ofthe impoundment
was not a foreign concept to Geo. Although Geo attempts to distance itselfJrom any
involvement with the seals, in fact the record presents a different picture. For example, Scott
Ballard, a senior project manager for Geo, Tr. I 40, had previously worked for Ogden (the
predecessor to Geo, slip op. at 3-4). Tr. I 45. While employed by Ogden, he wrote the August
1994 Impoundment Sealing Plan, Tr. I 191, in which seals·had initially been propoSed. Tr. I 167.
When the proposed seals were not accepted by MSHA, Ballard wrote to MCC, providing
detailed comments about the seals, Gov't Ex. 2A (October 3, 1994 letter) and MCC forwarded ..
those comments to MSHA. Gov't Ex. 2A (October 5, 1994 letter); Ballard testified that MCC
contacted him and requested that he provide calculations for an alternative plan for the seals,
which he did. Tr. I 90-91. See-also Tr. 1297; Gov't Ex. 7 (attachments to Campoy.letter of
September 7, 1995). Accordingly, given Ballard's significant involvement with the ·
impoundment and the issues involving the seals, the statement by Geo's counsel at oral argument
that "Geo actually didn't even know the seals were built," Oral Arg. Tr. 84, appears somewhat
farfetched.
The judge' s finding that the annual reports and certifications did not include a reference
to the underground seals is undisputed. Accor<;lingly, for the reasons stated above, I would affirm
the finding of a violation.
For the foregoing reasons, I respectfully dissent.

break through. MCC Ex. Al, at 012293 (construction of the hydraulic seal will protect miners
along the balkline from a slurry release). Although MSHA required some additional information ·
relating to those seals, the entire Impoundm.ent Plan, including the seal provisions, was approved
on October 20, 1994. Gov't Ex. 2A; Tr. 436-37. However, the hydraulic cement seal was never
constructed. Tr. 436-38. InsteacL on September 7, 1995, MCC submitted a modification to the
plan to strengthen the existing mine seals using 1-foot-thick steel reinforced gunite material.
Gov't Ex. 7. MSHA approved this proposal and referred to the seals as modifications to the
"previously approved impoundm.ent seal plan." Gov't Ex. 7; Tr. I 204.

28 FMSHRC 280

Distribution
Jack Powasnick, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Mark E. Heath, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd. East
P .O. Box 273
Charleston, WV 25321
Melanie J . Kilpatrick, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
Chief Administrative Law Judge Robert J. Lesnick .
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001-2021

28 FMSHRC 281

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 2, 2006
SECRETARY OF LABOR

MINE SAFETY AND HEALTH
Docket No. LAKE 2006-101-M
A.C. No. 47-03341-59208

ADMINISTRATION (MSHA)

v.
R.G. HUSTON COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On April 27, 2006, the Commission received a letter from the
safety director ofR.G. Huston Company, Inc. ("R.G. Huston") requesting that the Commission
reopen a penalty assessment that became a final order of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 18, 2004, the Department of Labor's Mine Safety and Health Administration
_(''MSHA") issued two citations to R.G. Huston. The company asserts that when it subsequently
received proposed penalties for the citations on June 17, 2005, it indicated on the penalty
assessment form that it wished to contest the proposed penalties and sent this to MSHA. R.G.
Huston further states that on April 6, 2006, it received a collection notice for the proposed
penalties. When the company contacted MSHA, it was told that the agency did not have a copy
of the company's contest. The Secretary of Labor states that she does not oppose R.G. Huston's
request for relief, and states further that "MSHA has no record of receiving the [company's
contest], but does not question that it was sent as indicated."

28 FMSHRC 282

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 F'MSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R
§ 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewedRG. Huston's request for relief, in the interests ofjustice, we remand
this matter to the Chief Administrative Law Judge for a determination of whether good cause
exists for RG. Huston's apparent failure to timely contest the penalty proj>osal and whether relief
from the final order should be granted. If it is determined that such relief is appropriate, this case
shall proceed pursuant tb the Mine Act and the Commission's Procedural Rule8, 29 C.F.R." Part
2700.

28 FMSHRC 283

Distribution
Dennis Richardso~ PE
R. G. Huston Company, Inc.
2561 Coffeytown Road
Cottage Grove, WI 53527
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W. Suite 9500
Washington, D.C. 20001

28 FMSHRC 284

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500

WASHINGTON, DC 20001

June 2, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2006-378..M
A.C. No. 02-00150-80060

v.
ASARCOLLC

BEFORE: Duffy, Chairinan; Jordan, Suboleski, and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). On April 28, 2006, the Commission received from Asarco
LLC ("Asarco") a motion made by counsel to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) ofthe Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 9, 2006, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Asarco a proposed penalty assessment that included proposed penalties for
two citations issued to the company by MSHA (Citation Nos. 6308580 and 6308584), which the
company states in its motion it had intended to contest. Mot. at 2-3. Asarco states that ''through
an inadvertent internal oversight, the penalty contest card for the proposed assessments was
misplaced," and as a reslilt, "was not timely mailed to MSHA." Mot. at 3; Deel. of-Paul Yslas,
Senior Safety Engineer. The Secretary states that she does not oppose Asarco' s request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
28 FMSHRC 285

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR'}. In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and tha~ if the defaulting party·can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Asarco's motion, in the interests ofjustice, we remand this matter to the
Chief Administrative Law Judge for a determination ofwhether good cause exists for Asarco's
failure to timely contest the·penalty proposal and whether relief from the final order should be
granted.. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 286

Distribution
Mark N . Savit, Esq.
Patton Boggs
1600 Lincoln Street, Suite 1900
Denver, CO 80264
W. Clnistian Schum~ Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W. Suite 9500
Washington, D .C. 20001

28 FMSHRC 287

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500

WASHINGTON, DC 20001

June2, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2006-261
A.C. No. 15-17044-69425
Docket No. KENT 2006-262
A.C. No. 15-17044-72408

v.

KMMC LLC d/b/a
VISION MINING INC.
BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act'').1 On May 2, 2006, the Commission received from KMMC
LLC d/b/a Vision Mining Inc. (''Vision Mining") motions made by counsel to reopen two penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motions, Vision Mining states that on or about October 11 and November 15, 2005,
the Department of Labor's Mine Safety and Health Administration (''MSHA") issued the
proposed assessments that it now seeks to reopen. Mot. at 2 (the two motions to reopen filed by
Vision Mining are similar, and citations herein are to both motions). Vision Mining states that
the employee responsible for processing proposed penalty assessments mistakenly determined
that the two penalty proposals had been included in a global settlement reached with MSHA
1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2006-261 and KENT 2006-262, both captioned KMMC LLC
dlbla Vision Mining Inc. and both involving similar procedural .issues. 29 C.F.R. § 2700.12.
28 FMSHRC 288

covering several unrelated proceedings. Mot. at 2-3; Exs. A (Deel. of Thomas Hughes) & B
(copies of decisions approving settlement in the several proceedings covered by the global
settlement agreement). The company also states that it had "always intended to contest these
proposed assessed penalties." Deel. at 3. The Secretary states that she does not oppose Vision
Mining's requests for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR'l In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could he entitled to relief
from a final order of the·Commission on the basis of inadvertence or mistake. See 29 C.F .R
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

28 FMSHRC 289

Having reviewed Vision Mining's motions, in the interests ofjustice, we remand these
matters to the Chief Administrative Law Judge for a determination of whether good cause exists
for Vision Mining's failure to timely contest the penalty proposals and whether relief from the
final orders should be granted. If it is determined that such relief is appropriate, these cases shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 290

Distribution
Peter S. Gould, Esq.
Patton Boggs, LLP
1660 Lincoln Street, Suite 1900
Denver, CO 80264
W . Christian Schumannt Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W. Suite 9500
Washington, D .C. 20001

28 FMSHRC 291

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

June 13, 2006
SECRETARY OF LABOR
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

Docket No. YORK 2006-50-M
A.C. No. 28-00546-59403

v.

Docket No. YORK 2006-51-M
A.C. No. 28-00546-64603

WIIlBCO OF NEW JERSEY, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY TIIB COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Acf'). 1 On May 2 and 3, 2006, the Commission received from
Whibco of New Jersey, Inc. ("Whibco") motions made by counsel to reopen two penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motions, Whibco states as follows: On June 14, 2005, the Department of Labor's
Mine Safety and Health Administration ("MSHA") issued the first proposed penalty assessment
at issue to Whibco. Mot. at 1. Whibco states that although it intended to contest the assessment,
it failed to do so in a timely fashion because company personnel were unfamiliar with contest
procedures. Id. at 1-2. On August 16, 2005, MSHA issued the second proposed penalty

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers YORK 2006-50-M and YORK 2006-51-M, both captioned Whibco
ofNew Jersey, Inc. and both involving similar procedural issue.s. 29 C.F.R. § 2700.12.
28 FMSHRC 292

assessment at-issue to Whibco. Mot. at 1. Whibco states, however, that the proposed assessment
''was mishandled by office personnel who subsequently resigned," and thus, the company's
president ''never saw the fonn." Id. In the case of both proposed assessments, Whibco states
that it learned of them when its counsel reviewed the company' s violation history on April 24,
2006. Mot. at 2. The S¢cretary states that she does not oppose Whibco's requests for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order ofthe Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

28 FMSHRC 293

Having reviewed Whibco' s motions, in the interests ofjustice, we remand these matters
to the Chief Administrative Law Judge for a determination of whether good cause exists for
Whibco 's failure to timely contest the penalty proposals and whether relief from the final orders
should be granted. Ifit is determined that such relief is appropriate, these cases shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

..· .

28 FMSHRC 294

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schum~ Esq.
Office of the Solicitor
U .S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2i47
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001-2021

28 FMSHRC 295

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500

WASHINGTON, DC 20001

June 13, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)

Docket No. YORK2006-47-M
A.C. No. 28-00546-80198 A
Docket No. YORK 2006-48-M
A.C. No. 28-00546-80200 A

V.

MARVIN R. BLETHEN,
GENE GARRON, and
JOHN HUGHES,
employed by WIDBCO, INC.

.·

Docket No. YORK 2006-49-M
AC. No. 28-®546-80201 A .

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act''). 1 On May 1, 2006, the Commission received separate (though
largely identical) motions made by counsel on behalf of Marvin R. Blethen, Gene Garron, and
John Hughes (''the respondents"), all employees of Whibco Inc., to reopen penalty assessments
against each employee under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under the Commission's Procedural Rules, an individual charged under section l lO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers YORK 2006-47-M, YORK 2006-48-M, and YORK 2006-49-M, in
which all the respondents are employees of Whibco Inc., and which all involve similar
procedural issues. 29 C.F.R. § 2700.12.
28 FMSHRC 296

In their motions to reope~ the respondents state that when they received proposed penalty
assessments from the Department of Labor' s Mine Safety and Health Administration (''MSHA'')
during February 2006, tliey gave them to Whibco Inc. office staff"for processing." Mot. at 1.
The respondents further state that although they intended to contest the assessments, they failed
to do so in a timely fashion "due to staff turnover" at Whibco Inc., and that the "uncontested
forms were only discovered when [the cases were] assigned to the undersigned counsel." Id. at
1-2. The Secretary does not oppose any of the respondents' requests for relief.
The Commission possesses jurisdiction to reopen uncontested assessments that have
become final Commission orders. Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993)
("JWR"). In evaluating requests to reopen final orders, the Commission has found guidailce in
Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be
entitled to relief from a final order of the Commission on the basis of inadvertence or mistake.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Cbal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

28 FMSHRC 297

Having reviewed the respondents' motions, in the interests ofjustice, we remand these
matters to the Chief Administrative Law Judge to determine whether good cause exists to reopen
these proceedings. If it is determined that such relief is appropriate, these cases shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28 FMSHRC 298

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Com.mission
601 New Jersey Avenue~ N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 299

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

Jwie 13, 2006
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. WEVA 2006-410-M
A.C. No. 46-00007-64806

V.

RIVERTON INVESTMENT CORP.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Acf'). On April 26, 2006, the Commission received from Riverton
Investment Corp. a motion made by counsel to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Riverton filed the motion on behalf of Essroc Cement Corp. ("Essroc").

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, Essroc states that on or about August 17, 2005, the Department of Labor's
Mine Safety and Health Administration ("MSHA") sent the proposed penalty assessment at issue
to the company. Mot. at 2. Although Essroc states that it "fully intended to contest" the
proposed assessment, a contest was not filed because the contest form was misplaced ''through an
inadvertent internal oversight." Id.; Deel. of Randy Emery. The Secretary states that she does
not oppose Essroc's request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders Wlder section IOS(a). Jim
28 FMSHRC 300

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR'). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
· from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a faililre to
timely respon~ the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
.
Having reviewed Essroc' s motion, in the interests ofjustice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Essroc's
failure to timely contest the penalty proposal and whether relief from the final order sllould be
granted. If it is det~ed that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R Part 2700.
·

Mic

28 FMSHRC 301

Distribution
Willa Perlmutter, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037-1350
Peter Gould, Esq.
Patton Boggs, LLP
1600 Lincoln St., Suite 1900
Denver, CO 90264
·.

W . Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J . Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 302

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVE.NUE, NW
SUrrE 9500
WASHINGTON, DC 20001

June 28, 2006
SECRETARY OF LABOR

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
WENDELL McCLAIN, COY McCLAIN,
WADEDAMRON,andGARYCONWAY

Docket Nos. KENT 2005-96-D
KENT 2005-97-D
KENT 200$-98-D
KENT 2005-99-D

v.
MISTY MOUNTAIN MINING, INC.,
STANLEY OSBORNE, and
SIMON RATLIFF

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
DECISION
BY: Duffy, Chairman; Suboleski and Young, Commissioners
This consolidated proceeding involves discrimination complaints filed by the Secretary of
Labor's Mine Safety and Health Administration ("MSHA'') on behalf of Wendell McClain, Coy
McClain, Wade Damron, and Gary Conway (collectively referred to as ''the complainants" or
"the miners") under section 105(c) of the Federal Mine s ·a fety and Health Act of 1977, 30 U.S.C.
§ 815(c) (2000) (''Mine Act" or "Act"), 1 against Misty Mountain Mining, Inc. ("Misty

1

Section 105(c)(l) of the Mine Act, 30 U.S.C. § 815(c)(l), provides in pertinent part:
No person shall discharge or in any manner discriminate against . .
. or otherwise interfere with the exercise of the statutory rights of
any miner . .. because such miner ... has filed or !llilde a
complaint under or related to this Act, including a complaint
notifying the operator or the operator's agent ... of an alleged
danger or safety or health violation in a coal or other mine ....
28 FMSHRC 303

Mountain"), Stanley Osborne, and Simon Ratliff. 2 Administrative Law Judge T. Todd Hodgdon
determined that the miners were discharged twice in violation of the Mine Act. However, he
awarded back pay in an amount lower than that proposed by MSHA and concluded that the
miners' right to reinstatement had ended once they turned down offers of reemployment
following their second discharge. 27 FMSHRC 690, 697-98, 701-03 (Oct. 2005) (AU). The
miners appealed the judge's reduction in their back pay and his conclusion that they had no
further right ofreinstatement; the Commission granted review. The Secretary filed, and the
Commission granted, a motion to intervene in the proceeding before the Commission. For the
reasons that follow, we affirm the judge's decision.

I.
Factual and Procedural Background
Misty Mountain was owned by Stanley Osborne. 27 FMSHR.C at 691. Misty Mountain
operated Mine No. 5, which was located in Letcher County, Kentucky, from July to November
13, 2004. Id. From July until October 14, superintendent Simon Ratliff was in charge of day-today operations at the mine. Id.
On August 1, 2004, Ratliff hired Gary Conway as an equipment operator. Id. Conway
worked as a shuttle car operator for 3 days, and then was assigned to operate a roof bolter. Id.
When he operated the shuttle car, he complained about the lack of brakes. Id. at 693. While
assigned to the roof bolter, Conway complained to Ratliff about the need for new dust filters in
the dust boxes and the failure of the automatic temporary roof support ("ATRS") to extend to the
roof. Id. at 693-94.

In mid-August, Wade Damron was hired to assist Conway on the roof bolter. Id. at 691.
Damron told Ratliff that the dust filters on the roof bolter did not work. Id. at 694. Also in midAugust, Coy McClain was hired to operate the shuttle car and a scoop. Id. at 691. He
complained to Ratliff about the lack of brakes on both the scoop and the.shuttle car. Id. at 694.
In addition, he reported that the ATRS on the roof bolter did not reach the roof in some places.
Id. Following Coy McClain's employment at Misty Mountain, Wendell McClain, Coy's brother,
was hired as a shuttle car operator. Id. at 691. Wendell also informed Ratliff that the shuttle car
did not have any brakes and that the ATRS did not reach the roo.t: Id. at 694.
On August 30, Ratliff removed Conway and Damron from operating the roof bolter and
assigned Coy and Wendell McClain to operate it. Id. at 691. Damron was then assigned to the
scoop. Id. at 691. When the roof bolter became stuck in the No. 3 entry, Damron brought in the
scoop to free it. Id. As the scoop approached the roof bolter, Damron was unable to stop by
2

Both mine owner Stanley Osborne and mine superintendent Simon Ratliff were
individually named in the complaint as ''persons" under the Mine Act, rather than charged as
agents under section l lO(c), 30 U.S.C. § 820(c).
28 FMSHR.C 304

applying the brakes. Id.; Tr. 74-75. Damron began yelling, "No brakes!" and signaling with his
helmet light to Ra£liff, and Coy and Wendell McCl~ who were standing in the entry. 27
FMSHRC at 691. Damron was able to stop the scoop by steering it into the rib about 20 feet
from where Ratliff and the other miners were standing. Id.
Wendell McClain told Ratliff that "someone was going to be killed" if the brakes on the
scoop were not fixed. Id. Ratliff responded that he was not going to let anyone disrespect him
like that and told Wendell McClain that he would not be needed anymore. Id. Ratliff told Coy
McClain to go with him. Id. Wendell and Coy McClain understood that to mean that they were
fired. Id. That same day, they filed discrimination co~plaints with MSHA. Id. Also on August
30, superintendent Ratliff told Wade Damron and Gary Conway that they were "derutbeats" and
to get their buckets and leave. Id. Damron and Conway understood this to mean that _they were
fired. Id. They filed discrimination complaints with MSHA on August 31 .. Id.
Coy McClain went back to the mine on August 31 and was allowed to return to work. Id.
at 692. On September 27, the Secretary of Labor filed applications for temporary reinstatement
for Wendell McClain, Damron, and Conway.3 Id. Before a hearing could be held on the
applications, Misty Mountain agreed to reinstate the three miners on October 4. Id. Wendell
McClain returned to work that day, and Damron and Conway returned to work on October 11.
Id.

After the complain~ts .went back to work, they were only permitted to work a few hours
each day before Ratliff sent them home, while other miners continued working. Id. On October
14, Ratliff told the complainants that he could not work with them anymore. Id. Believing that
to mean they were fired, they left the mine. Id. The same day, Ratliff quit his position as
superintendent at Misty Mountain, and Mine No. 5 was closed until October 25, when a new
superintendent was hired. Id.
On October 22, the Secretary filed an application for temporary reinstatement on behalf
of Coy McClain. Id.; Appl. for Temp. Reins'!, Docket No. KENT 2005-28-D. That same day,
the Secretary also filed a Motion to Enforce Order to Temporarily Reiiistate Wendell McClain,
Gary Conway and Wade Damron. Docket Nos. KENT 2005-02-D; KENT 2005-03-D; KENT
2005-04-D. Shortly thereafter, Stanley Osborne spoke with MSHA special investigator Ricky
Hamilton and told him that the complainants could return to work when the mine reopened. 27
FMSHRC at 692; Tr. 403-04; 528-29.

3

At that time, no temporary reinstatement application was filed on behalf of Coy
McClain because he had returned to work. See Docket No. KENT 2005-28-D.
28 FMSHRC 305

On October 24, Coy McClain called Osborne at home and told him that he had another
job.4 27 FMSHRC at 692. Neither Conway nor Damron returned to work on October 25 when
the mine reopened. Id. On October 26 and 27, Osborne again spoke with the MSHA office and
stated that he could place one of the miners at another mine. Id. On October 28, the secretary of
MSHA investigator Hamilton called Osborne and told him that Conway and Damron had other
jobs and would not be returning.s Id.
Wendell McClain returned to work at Misty Mountain on October 25 and continued to
work at Mine No. 5 until it closed on November 14, 2004. Id. When the mine closed, Osborne
offered Wendell McClain a job at Misty Mountain Mine No. 2. Id. McClain turned down the
offer on the grounds that it was too far from his home and that he had no money for gas to drive
there. Id.
The Secretary filed discrimination complaints on behalf of the miners in which she sought
reinstatement, back pay, and other damages related to their discharges. Id. at 693. The Secretary
also sought civil penalties of$20,000 against Misty Mo1Ultain, $10,000 against Stanley Osborne,
and $10,000 against Simon Ratliff. Id. Thereafter, a hearing was held before the judge in which
Misty Mountain, Osborne, and Ratliff appeared prose. Id. at 690.
Based on these credited facts,6 the judge found that the complainants engaged in protected
activity by making various safety complaints regarding the equipment at Misty Mountain Mine
No. 5. Id. at 693-94. The judge further found that the complainants were fired on August 30

4

Subsequently, the.Secretary moved to dismiss Coy McClain' s temporary reinstatement
application because he was working at another mine. 27 FMSHRC at 692; Order of Dismissal
(Dec. 6, 2004), Docket No. KENT 2005-28.
s The judge noted that Osborne's conversations with the MSHA office contained hearsay
but that they were not disputed by the other parties. Osborne was not cross examined about
them, and they were corroborated by MSHA investigator Hamilton. 27 FMSHRC at 700.
6

The judge stated the following with regard to the credibility of the witnesses:

On the whole, I found the main protagonists in this episode,
Simon Ratliff, the McClains, Conway and Damron to be of
doubtful credibility. Not only did they have obvious interests in
the outcome of these cases, but their testimony, in addition to the
specific instances already noted, was characterized by selective
memory, inconsistencies and self-serving statements. I have tried
to rely on their testimony only when it was supported or
corroborated by other evidence.
27 FMSHRC at 705.

28 FMSHRC 306·

because of their safety complaints. Id. at 694-98. The judge also found that, following their
reinstatements during the week of October 11, the complainants worked fewer hours than other
miners. Id. at 698. Finally, the judge found that on October 14 the complainants were fired for a
second time as a result of their discrimination complaints.7 Id.
The judge held that the complainants were entitled to some back pay, but not to
reinstatement and other monetary damages. Id. at 693, 699, 707. He determined that, following
the October 14 terminations, "Osborne made a suitable offer of reinstatement to the four
[c]omplainants.. .. [T]he fact that the offer was first made to settle the temporary reinstatement
applications does not mean the offer was not suitable.'' Id. at 700. Accordingly, the judge
concluded that, once the complainants refused reinstatement, they were not entitled to it again. Id.
at 701 n.3. He also concluded that they were entitled to back pay only until the date when they
refused reinstatement.8 Id. at 701. He rejected the Secretary's position that MidguardMining,
which was owned by Stanley Osborne's son and took over some of the Misty Mountain mines,
was liable as a successor operator. Id. at 704. ne judge also rejected liability for back pay by
former superintendent Simon Ratliff because he was acting only as an agent of Misty Mountain.
Id. at 704-05. However, the judge held that Misty Mountain owner Stanley Osborne was jointly
and severally liable for back pay. Id. at 704.
Finally, the judge imposed a penalty of $10,QOO, which was reduced from a proposed
penalty of $20,000 against Misty Mountain and its owner, Osborne. Id, .at ,705-06. The judge
rejected the Secretary's further penalty proposals of$10,000 against Ratliff and Osborne
individually because there was no basis for their liability under section 11 O(c), 30 U.S.C. § 820(c),
in this proceeding. Id. 9

7

There has been no appeal from the judge's determination that the complainants were
discharged twice as a result of their protected activity in violation of the Mine Act.
8

The judge awarded back pay to the complainants in the following amounts: Gary
Conway- $2,660; Wade Damron - $2,660; Coy McClain - $238; and W eildell McClain $1,860. 27 FMSHRC at 701-03, 707.
Both Osborne ~d Ratliff timely filed briefs with the Commission.· However, to the
extent that their briefs addressed issues not raised in the PDR, the Commission did not consider
them in deciding this case. See Secy ofLabor on behalfofBowling v. Mauntain Top Trucking
Co., Inc., 21FMSHRC265, 284-85 n.25 (Mar. 1999) ("because these contentions were not
raised by [a timely-filed petition for review], were not ordered by the Commission sua sponte for
review, and attack the judge's orders ... , they are not properly before the Commission.").
Further, both Osborne and Ratliff refer to evidence that is not part of the record, including the
recanting of testimony by a witness after trial and the results of a polygraph test, attached to
Ratlifrs brief. Because this evidence is not part of the record on review, it cannot be considered
by the Commission. Id.; see 30 U.S.C. 823(d)(2)(A)(iii) ("no assignment of error by any party
shall rely on any question of fact or law upon which the administrative law judge had not been
9

28 FMSHRC 307

The complainants filed a petition for review limited to the judge' s reduction in their back
pay resulting from their rejection of Misty Mountain's reinstatement offers and his detennination
that they had no further right of reinstatement once they had rejected those offers.

II.
DiSjlOsition
The petition for discretionary review, filed on behalf of the complainants, challenges the
judge' s determination that they ''were not entitled to reinstatement." PDR at 1.10 More
specifically, the petition appeals the judge's determination that Wendell McClain' s entitlement to
back pay ended on November 15, 2004; that Coy McClain's entitlement to back pay ended on
October·24, 2004; and that Damron's and Conway' s entitlement to back pay ended on October 25,
2004. Id. at 1-2. With regard to Wendell McClain, Damron, and Conway, the petition asserts that
they were under no obligation to accept temporary reinstatement after their second discharge. Id.
at 13. Further, the petition argues that Wendell McClain was not required to accept a transfer to
another mine, when Misty Mountain No. 5 closed; because he was in temporary status. Id. With
regard to Coy McClain, the petition challenges the judge's determination that McClain was not
entitled to back pay and reinstatement once he took a job at another mine, because there is no
evidence that Stanley Osborne made an unqualified offer of permanent reinstatement. Id. at 1314. The petition argues that the judge's conclusion that Osborne made a suitable offer of
reinstatement to the comptainants is incorrect as a matter of law. Id. at 15. Finally, the petition
concludes that the judge's finding that a bona fide offer of reinstatement was made and
communicated to the complainants is not supported by substantial evidence. Id. at 15-16.
The Secretary asserts that the judge erred when he failed to explain how he determined
that Misty Mountain' s second offer of reinstatement was "bona fide." s~ Br. at 1, 15-17. The
Secretary further argues that, assuming the reinstatement offers were bona fide, the judge failed to
explain how he determined that the complainants' rejection of the offers constituted rejection of
any further reinstatement with Misty Mountain. Id. at 1-2, 20-23. In support of her position, the
Secretary asserts that a miner has no obligation to accept temporary reinstatement in order to
preserve his right to permanent reinstatement. Id. at 23 n.14. Contrary to the complainants'
position on appeal, the Secretary argues that the offers of reinstatement, following the second
discharge, were effectively communicated. Id. 17-19.

afforded an opportunity to pass."). In addition, Ratliff filed two briefs with the Commission well
after the expiration date of the briefing period, which ended on March 27, 2006. Briefing Order
(Jan. 5, 2006). Those briefs have not been considered by the Commission.
10

The complainants designated their petition for discretionary review as their brief to the
Commission. Letter (Feb. 3, 2006).

28 FMSHRC 308

In challenging the judge' s determination that the complainants were not entitled to
reinstatement and that their back pay was cut off by Misty Mountain's offer of reinstatement
following the second discharges, the complainants have placed squareiy before the Commission
the adequacy of those reinstatement offers.
A.

Reinstatement Offers and Mitigation of Back Pay

The Commission applies the abuse of discretion standard when re\jewing a judge's
remedial order. See Sec y ofLabor on behalfofReike v. Akzo Nobel Salt Inc., 19 FMSHRC 1254,
1257-58 (July 1997). "Abuse of discretion may be found when 'there is no evidence to support
the decision or if the decision is based on an improper understanding of the law.'" Id. at 1258 n.3
(quoting Mingo Logan Coal Co., 19 FMSHRC 246, 249-50 n.5 (Feb. 1997), ajf'd, 13_3 F.3d 916
(4th Cir. 1998) (unpublished)). "A litigant seeking to establish ... abuse of discretion bears a
heavy burden." Mingo Logan, 19 FMSHRC at 249-50 n.5 (citing In re: Contests ofRespirable
Dust Sample Alteration Citations, 17FMSHRC 1819, 1844(Nov.1995)).
l

Under section 105(c), the Commission is authorized to "require a·person committing a
violation of this subsection to take such affirmative action to abate the violation as the
Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the
miner to his former position with back pay and interest." 30 U.S.C. § 815(c)(2). 11 Accordingly,
the Commission endeavors to make miners whole and to return them to their status before the
illegal discrimination occurred. Sec y ofLabor on behalfofBailey v. Arkansas-Carbona Co., 5
FMSHRC 2042, 2056 (Dec. 1983). "Om concern and duty is to restore the discriminatees, as
nearly as we can, to the enjoyment of the wages and benefits they lost as a result of their illegal
terminations." Secy ofLabor on behalfofDunmire and Estle v. Northern .Coal Co., 4 FMSHRC
126, 143 (Feb. 1982). "'Unless compelling reasons point to the contrary, the full measure of relief
should be granted to'" a discriminatee. Bailey, 5 FMSHRC at 2049 (quoting Sec y ofLabor on
behalfof Gooslin v. Kentucky Carbon Corp., 4 FMSHRC l , 2 (Jan. 1982)).
The Commission recognized in Dunmire and Estle that the failure of a discriminatee to
mitigate his damages is a compelling reason that could warrant less than complete relief. 4
FMSHRC at 144. Thus, the Commission has held that "back pay may be reduced in appropriate
circumstances where an employee incurs a 'willful loss of earnings' (fails to mitigate damages)."
Id. (quoting OCAWv. NLRB, 541F.2d598, 602-03 (D.C. Cir. 1976)). Finally, the operator bears
the burden of proof with respect to willful loss. Metric Constructors, Inc. , 6 FMSHRC 226, 233
(Feb. 1984), ajf'd, 166 F.2d 469 (11th Cir. 1985).
11

Under section 105(c)(2), upon investigating a miner' s complaint of discriminatory
discharge and finding that the complaint has not been "frivolously brought," the Secretary must
apply to the Commission for an order for "the immediate reinstatement of the miner pending
final order on the complaint." 30 U.S.C. § 815(c)(2). The Commission is required to grant the
application if it finds the statutory standard has been met. Id.; see generally Secy of Labor on
behalfofOndreako v. Kennecott Utah Copper Corp., 25 FMSHRG 585, 586-87 (Oct. 2003).
28 FMSHRC 309

Disposition of the appeal in this proceeding turns on whether Misty Mountain made a
suitable offer of reinstatement to the complainants following their second discharge. An offer of
unconditional reinstatement to their jobs at Misty Mountain would toll the accumulation of back
pay. Munsey v. Smitty Baker Coal Co., Inc., 2 FMSHRC 3463, 3464 (Dec. 1980); Bryant v.
Dingess Mine Servi,ce, Inc., 10 FMSHRC 1173, 1180 (Sept. 1988). Thus, it is "only in
'exceptional' circumstances that a discriminatee's rejection of an unqualified job offer [will] not
end the back pay period.'' Bryant, 10 FMSHRC at 1180-81. Finally, if a suitable offer of
employment was made and refused, then the need to offer reinstatement is moot. Munsey, 2
FMSHRC at 3464.
B.

Validity of Osborne's Reinstatement Offers

Following the complainants' second discharge on October 14, the mine was shut down
from October 15 until October 25, when a new superintendent was hired to replace Simon Ratliff.
27 FMSHRC at 699. Sometime before October 25, Stanley Osborne, owner ofthe mine, ·
conveyed an offer of reinstatement to the complainants through MSHA investigator Ricky
Hamilton. Tr. 403-04; 528-29.12 According to Osborne, he ''told all four employees that there
would be work for them." Tr. 528. Only Wendell McClain returned to work on October 25. He
continued working there until November 13, when the mine closed. 27 FMSHRC at 699.
While testimony in the record regarding the reinstatement offers is terse, there is nothing
to suggest that the offers were conditional. See Tr. 403. Further, there is nothing in the record
that would support the conclusion that acceptance of the offers would be futile, as the Secretary
has argued. S. Br. at 15-16. Significantly, Ratliff, the principal source of friction who had
initiated the prior terminations, had, by that time, quit his employment with the mine, resulting in
the mine's closing until a new superintendent could be hired and leaving Osborne to convey job
offers to the complainants. Compare Secy ofLabor on behalfofHyles, etc. v. All American
Alphalt, 21 FMSHRC 119, 141 n.28 (Jan. 1999) (operator's placement of miner in a job before it
was posted indicates that efforts of discriminatorily laid off miners to bid on the job when it was
posted would have been futile). Thus, there is no circwnstance that alters the plain words of
Osborne's reinstatement offers. Under these facts, once a suitable offer of reinstatement was
made, that tolled the accumulation of back pay, and there is no further requirement to offer
reinstatement. See Munsey, 2 FMSHRC at 3464.

12

Counsel for the Secretary initially objected to testimony regarding the reinstatement
offers because, as a matter of law, the complainants could refuse an offer of temporary
reinstatement and; therefore, the testimony was irrelevant. Tr. 401-04 (Hamilton). Subsequently,
counsel further objected to testimony regarding the reinstatement offers because they were part of
settlement discussions. Tr. 528 (Osborne). The judge overrule,d the objections.
28 FMSHRC 310

Before the judge1 the Secretary argued that a reinstatement offer made to settle a temporary
reinstatement complaint could never be "suitable." The judge rejected the Secretary,s argument. 13
27 FMSHRC at 700. Now, before the Commission, the complainants argue that the judge's
conclusion was incorrect and inconsistent with the Commission's decision in Bryant. In further
support of their positio~ the complainants argue that temporary reinstatement can never be
''unconditional,, and is "contingent,, and "places a condition upon one's employment status."
PDRat 15.
These arguments must be rejected because they are at odds with the plain language of the
Mine Act. In this regard, section 105(c)(2), 30 U.S.C. § 815(c)(2), makes no distinction between
the "immediate reinstatement,, which the Commission shall order followirig the Secretary's
determination that a discrimination complaint is not "frivolously brought,', and the reinstatement
ordered by the Commission following a hearing and a determination of a violation. Iii other
words, until a Commission judge has issued a ruling on the validity of the complaint, it is
unknown whether the "immediate reinstatement', called for in section 105(c)(2) is temporary or
permanent in nature. Thus, an operator's offer of reinstatement should be regarded as
unconditional unless its terms expressly indicate otherwise. 14
Nor does Commission case law support the position of the Secretary or the complainants
that a reinstatement offet should be interpreted to mean something other than its plain language.
In Bryant, cited by the complainants, the Commission held that an operator's offer to place a
discriminatee on a recall panel coupled with the operator's guarantee that the discriminatee would
be called back to work within two or three days was a bona fide offer of reemployment. 10
FMSHRC at 1180-82. The Commission :further held that once the discriminatee turned down the
offer, the right to back pay terminated. Id. at 1182. In this proceeding, Osborne's offer of work
was unconditional. 27 FMSHRC at 699-700. On cross examination of Osborne, the Secretary's
counsel tried to show that Osborne limited his offers of reemployment because they were made in
the context of the Secretary's having filed temporary reinstatement complaints. Tr. 531·33.
When asked if the reinstatement offers were made "pursuant to the temporary reinstatement

13

The dissenting opinion rests on the mistaken premise that the judge did not make a
finding of suitability regarding Osborne's reinstatement offer. However, the judge clearly did so,
noting in particular that the reinstatement offers were made to settle the Secretary's reinstatement
applications. 27 FMSHRC at 700. Thus, although our dissenting colleague would have the
judge further review the record testimony on remand to determine whether the offers were for
''temporary" or "permanent" reinstatement, slip op. at 14, such a remand would be groundless
and unnecessary. Moreo'Ver, even if one could conclude that the judge had not made such a
suitability finding, Osborne's testimony is the only probative evidence on this issue, and it can
only be read to support the conclusion that he made an unconditional offer of reemployment.
14

If events indicate that the offer of reinstatement is not bona fide, e.g., the complainant
is treated adversely after reinstatement, the remedy is for the Secretary to seek additional relief
from the judge.
28 FMSHRC 311

cases," Osborne responded, "I don't know ... . I didn't temporarily give them a job. I would have
given them a job . . . ." Tr. 532. Indeed, Osborne's offer of reinstatement is more absolute and
open-ended than the one that the Commission found acceptable in Bryant.15
The complainants further cite Dunmire and Estle and Bowling to support their argument
that a discriminatee is not required to accept an offer of temporary reinstatement to mitigate
damages. In Dunmire and Estle, a discriminatee, who had not sought a temporary reinstatement
application, was nevertheless found to have made the necessary reasonable efforts to mitigate bis
damages when he found alternative but lower paying employment. 4 FMSHRC at 144. The
Commission refused to hold that the discriminatee had failed to mitigate his damages because he
would have earned more by obtaining temporary reinstatement to the position from which he had
been discharged.. See id. In Bowling, the Commission concluded that a discrimina~ee had not
failed to mitigate his damages when he did not seek reopening of bis temporary reinstatement
application, where there was no evidence that he was aware that he had a right to ask the Secretary
to refile his application. 21 FMSHRC at 284-85. Neither case can be read to support the
Secretary's and complainants' position that an offer of reemploynient, made pursuant to a
temporary reinstatement application, cannot constitute an unconditional offer to return to work.
In sum, the positions of the complainants and the Secretary on appeal must be rejected.
C.

Substantial Evidence Sup_ports the Judge's Findings

When Misty Mountain Mine No. 5 closed, Osborne offered to transfer Wendell McClain
to Mine No. 2, and he agreed to take the position.. 27 FMSHRC at 699. However, he never
showed up at the mine, because, according to McClain, it was too far to drive or he did not have
the money for gas. Id. The judge found that McClain's excuses for not accepting the job at the
mine were "inconsistent and nonsensical." Id. The judge noted in particular that Osborne had
paid McClain $800, purportedly in settlement of his MSHA complaint, which he used to pay for
Christmas gifts on lay-away, rather than for gas to go to work. Id. The judge concluded that
Wendell McClain's failure to report at the No. 2 mine was "not justified." Id. Therefore, the
judge further concluded that McClain was not entitled to reinstatement because he chose not to
accept the offer of work at the No. 2 mine ''without articulating a legitimate reason for doing so."
Id. at 701. The judge also held that McClain's back pay should not run beyond the time he turned

is The dissent's transformation of Osborne's unconditional offer of work to a conditional
''temporary job offer," slip op. at 16-17, is without basis in the record and appears to·be a thinly

veiled attempt to apply the holdings of cases decided under the National Labor Relations Act
("NLRA"). See slip op. at 17. However, those cases are readily distinguishable because there is
no provision in the NLRA comparable to the immediate reinstatement provision in section
I 05(c)(2) of the Mine Act.
28 FMSHRC 312

down the offer of work at the No. 2 mine. Id. at 702. We hold that substantial evidence supports
the judge's findings.16
Additionally, the decision clearly rests on credibility determinations made by the
administrative law judge. See slip op. at 4 n .6, supra. We will not disturb these determinations
except in extraordinary circumstances not found here. Farmer v. Island Creek Coal Co., 14
FMSHRC 1537, 1540-41(Sept.1992) (quoting Hollis v. Consolidation Coal Co., 6 FMSHRC 21,
25 (Jan. 1984), ajf'd mem. 750 F.2d 1093 (D.C.Cir. 1984)).
Further, the complainants argue that the reinstatement offer was not effectively
communicated. 17 However, the tecord indicates and the judge found that the offer was made by
Osborne to MSHA investigator Ricky Hamilton and the Secretary's counsel. 27 FMSHRC at 699;
Tr. 403; 529. Moreover, that the offer was made and communicated was borne out by Wendell
·
McClain's return to work.
With regard to Coy McClain, Gary Conway, and Wade Damron, the judge found, as noted
above, that Stanley Osborne made an offer of reinstatement, through Hamilton and the Secretary's
counsel, following the second discharge. 27 FMSHRC at 699. The judge found that Coy
McClain turned down the reinstatement offer because he had found a higher paying job. 18 Id. at
700. The judge further found that Osborne made a similar offer of reinstatement to Conway and
Damron but that they had found other jobs. Id. Neither the Secretary nor the complainants

16

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
17

The Secretary disagrees with the complainants that the reinstatement offer was not
effectively communicated. See S. Br. 17-19 and PDR at 15.:.16. More specifically, the
complainants assert that Osborne never told them directly that they could come back to work.
We agree with the Secretary's position that there is nothing inherently improper with an
operator's conveying a reinstatement offer through MSHA representatives. Indeed, in this case it
appears that Osborne believed that he was required to communicate with the complainants
through MSHA. Tr. 529.
18

The judge.noted that Coy McClain "professed not to recall this incident and .. . was
very evasive when questioned about it." Id. (citing Tr. 173-75). However;·the judge indicated
that MSHA investigator Hamilton testified that Osborne had told him that Coy had quit to take a
higher paying job (Tr. 397-98), and the payroll records in evidence showed that Coy was making
more during his employment at McPeaks Energy during the period of October 17 to November
12. 27 FMSHRC at 700; Gov't Ex. 24.
28 FMSHRC 313

challenge the judge's findings. In light of these uncontested findings, the judge's conclusion that
"Osborne made a suitable offer of reinstatement" to the complainants, and "[a]ll four were offered
a chance to return to Mine No. 5 or to transfer to other Misty Mountain mines and all four turned
[the offers] down," is supported by substantial evidence. Id. at 700, 699.

m.
Conclusion
For the foregoing reasons, we affirm the judge's decision.

28 FMSHRC 314

Commissioner Jordan, dissenting:

Both the judge arid my colleagues avoid the central issue in this case: were the job offers
from Stanley Osborne to the miners offers of temporary reinstatement, or permanent job offers?
The majority concludes that substantial evidence supports the judge's finding that Osborne made a
suitable offer of reinstatement, but the key question determining the adequacy of the offer was not
addressed, much less answered, in his opinion. Therefore, I would vacate the judge's decision and
remand the case to him.
The Commission requires that a judge analyze and weigh all probative record evidence,
make appropriate findings, and explain the reasons for his or her decision. Mid-Continent Res.,
16 FMSHRC 1218, 1222(June1994). The D.C. Circuit has further explained that, "[p]erbaps the
most essential purpose served by the requirement of an articulated decision is the facilitation of
judicial review." Harborlite Corp. v. ICC, 613 F.2d 1088, 1092 (D.C. Cir. 1979). Without
findings of fact and adequate justification for the conclusions reached by a judge, we cannot
perform our review function effectively. Anaconda Co., 3 FMSHRC 299, 299-300 (Feb. 1981)
(citations omitted). Jn this case, the question of whether Osborne's job offer was "suitable,"
hinges in large part on the factual issue of whether the offer was for temporary or permanent
employment. \Y'ithout such a finding, I am unable to detennine whether the judge's ultimate
holding that a suitable job offer was made should be sustained.
According to the judge, "the fact that the offer was .first made to settle the temporary
reinstatement applications does not mean the offer was not suitable," 27 FMSHRC 690, 700 (Oct.
2005) (ALJ), but it is unclear what he meant by this statement. As the judge, noted, after the first
firing, the miners went back to work in the same positions and at the same pay as they originally
earned. Id. While these factors are generally a necessary component of a suitable offer, they do
not equate to a permanent job offer. When the miners were fired a second time, "Osborne made it
known to them that they could return to Mine No. 5 or to other mines that he operated." Id. The
judge points to no evidence that would lead one to reasonably conclude that this second offer was
any more permanent than the first.
The judge also relies on the fact that "after October 14, Ratliff, who seems to have been
the catalyst for all of the problems at the mine, had resigned." Id. at 700-01 . While this may be
an appropriate factor to consider in making a determination as to whether a permanent job offer is
suitable, it does not transform a temporary offer into a permanent one.

Jn any event, regardless of whether Osborne intended to offer a permanent, as opposed to
a temporary job, it is unclear whether the miners would have any reason to think something other
than temporary reinstatement was being offered. The offer at issue (the one after the second
firing), was app.arently made on October 22 (27 FMSHRC at 692, 699), the same day the
· 28 FMSHRC 315

Secretary filed a Motion to Enforce Order to Temporarily Reinstatement Wendell McCl~ Gary
Conway and Wade Damron. Docket Nos. KENT 2005-02-D: KENT 2005-03-D; KENT 2005-04D. The Secretary also filed an Application for Temporary Reinstatement for Coy McClain on that
day. 27 FMSHRC at 692. Why should an offer to return the miners to work that day be viewed
as anything more than an effort to comply with the judge;s order requiring only temporary
reinstatement? Why is .it reasonable to conclude, without compelling evidence in support, that an
operator who fired miners on two occasions in violation of section 105(c), and who, in between
those firings illegally reduced their wages, was now offering to take action above and beyond
what was required under the statute? Because the judge failed to address these key questions, I
cannot affirm his decision. I would remand the case to him so ~t he could take these issues into
account in deciding whether the job offer was temporary or permanent.
On remand, I would also ask the judge, in making a finding as to whether the offers were
for temporary or permanent employment, to review the scant record testimony on this issue,
including the testimony from Stanley Osborne (the only evidence relied on by my colleagues to
support their finding that the offers were unconditional) wherein he states "I didn't temporarily
give them a job. I would have given them a job . ..." Slip op. at 10 (quoting Tr. 532); 1 see also
Tr. 394. On the other hand, I would also ask the judge to consider Osborne's acknowledgment
that before he made the job offers at issue, counsel for the Secretary had informed him that as part
of the temporary reinstatement, he had to ')>ut those four people back to work." Tr. 527. ·

Apparently, my colleagues believe that, when ascertaining whether an operator's job offer
is "suitable," it does not matter whether the offer is for temporary or permanent employment. Slip
op. at 9-10. According to the majority, whenever an operator offers immediate reinstatement
following Commission agreement that a discrimination complaint is not frivolously brought, that
reinstatement "should be regarded as unconditional unless its terms expressly indicate otherwise."
Id. at 9. Put another way, my colleagues have deemed a job offer issued pursuant to the
Commission' s temporary reinstatement proceedings to be the equivalent of a permanent job offer.
Such a ruling defies logic as well as the ordinary meaning of the term temporary reinstatement.
The majority relies on the language of section 105(c)(2) of the Mine Act, 30 U.S.C.
§ 815(c)(2), which it contends does not distinguish between ''the immediate reinstatement," that
the judge must order if he or she affirms the Secretary's determirtation that a discrimination
complaint ''is not frivolously brought," and the reinstatement ordered by that judge following a

1

The fact that the majority relies on this testimony implies that it believes that, in
calculating a back pay award, a judge should take into account whether a job offered to a miner
was for temporary or permanent work:. Otherwise, this testimony would not be relevant to the
majority's determination of whether the job offer was "suitable." But see slip op. at 14-15, infra.

28 FMSHRC 316

hearing and a determination that a violation of section 105(c) occurred.2 ~lip op. at 9. It points
out that if the judge ultimately upholds the miner's section 105(c) complaint, the previously
ordered immediate reinstatement becomes permanent in nature. Id. Because we do not know at
the outset whether the immediate reinstatement will ultimately prove to be of a temporary or
permanent nature, my colleagues conclude that this offer must be deemed Unconditional unless its
terms expressly indicate the contrary. Id. 3
I disagree that the plain language of section 105(c) leads to the conClusion that offers of
temporary reinstatement are unconditional offers to return to work. Section 105(c)(2) of the Mine
Act provides that when a miner files a discrimination complaint deemed not frivolous, the
Commission "shall order the immediate reinstatement of the miner pending.final order on the
complaint.'' 30 U.S.C. § 815(c)(2) (emphasis added). In contrast, when the miner ultimately
prevails on the complaint, the Commission is authorized to order whatever relief the Gommission
deems appropriate including "the rehiring or reinstatement of the miner to his former position,
with back pay and interest." Id. There is no conditional language regarding the pendency of this
reinstatement. Thus, the drafters of the Mine Act clearly recognized the i.Iilportant difference .
between these two concepts, a difference that for some reason my colleagues are attempting to
blur.
Although the majority acknowledges that it is the operator who bears the burden of proof
with respect to willful loss of earnings, slip op. at 7 (citing Metric Constructors, Inc., 6 FMSHRC
226, 233 (Feb. 1984), affd, 766 F.2d 469 (11th Cir. 1985)), its analysis turns this burden upside

2

The majority thus appears to disregard the Commission's own procedural roles, which
explicitly recognize temporary reinstatement. Comm Proc. Rule 45, 29 C.F .R.
§ 2700.45.
3

My colleagues correctly rely on Bryant v. Dingess Mine Serviee, Inc., 10 FMSHRC
1173 {Sept. 1988), for the proposition that a bona fide offer ofreinstatement tolls the
accumulation of back pay. Slip op. at 8. Notably, though, in that case, the Commission, in its
discussion of''unconditianal" and "bona fide" job offers, was referring to a permanent job rather
than a job of shorter duration. This is demonstrated by its reference to an employment law
treatise (10 FMSHRC at 1180), in which the authors stated that:
termination of the back pay period normally occurs when the
discriminatee is unconditionally and in a bona fide fashion offered
the employment, reinstatement, or promotion at issue. This can
occur.pursuant to a final court decree or pursuant to a voluntary
bona fide offer of employment, reinstatement, or promotion to the
position at issue.
B. Schiei and P. Grossman, Employment Discrimination Law 1432 (2d ed. 1983) (emphasis
added} (footnotes omitted).
28 FMSHRC 317

down. In effect, the majority has created a presumption that any job offer rendered by an operator
is unconditional, and therefore cuts off a back pay award, unless the operator has taken care to
clearly indicate that it is conditional.4 This is troubling because it significantly reduces the
operator's burden of proof in establishing a willful loss of eainings. It is especially worrisome in
a context such as the one presented in this case, where an offer of employment is made at the
same time that the Secretary seeks a temporary reinstatement order from the judge. Why an
operator's job offer at this juncture should be presumed unconditional (and pennanent) is simply
not explained by the majority.
My colleagues are correct, however, that until a judge issues a ruling on the validity of the
discrimination complaint, it is impossible to know whether the ''immediate" reinstatement is
temporary or pennanent. Slip op. at 9. That is precisely why a rigid rule truncating a miner's
back pay recovery if he or she refuses temporary reinstatement is ill-founded: in a practical, rather
than a merely theoretical world, a miner who has found alternative employment may be reluctant
to discard it for a temporary job with a former employer, because at the time of the offer it is
impossible to know whether the temporary job will, in fact, become pennanent. Giving up
steady, permanent employment and job security for a temporary job that niay or may not become
permanent after a period of litigation provides little solace for a miner. I doubt that the drafters of
the Mine Act contemplated that a miner bringing a discrimination claim would be forced to
gamble on his or her chances of litigation success in order to preserve back pay rights.
In addition, the majority fails to cite one Commission case directly in support of the novel
principle that a refusal of a temporary job offer (which they consider to be ''unconditional'')
automatically tolls a back pay award. The Commission has made it emphatically clear that a
miner is not required to seek temporary reinstatement in the first place in order to mitigate his or
her damages. See Secy ofLabor on behalfofDunmire and Estle v. Northern Coal Co., 4
FMSHRC 126, 144 (Feb. 1982); Secy ofLabor on behalfofBowling v. Mountain Top Trucking
Co., 21 FMSHRC 265, 284 (Mar. 1999). If a miner cannot be penalized for failing to seek
temporary reinstatement in the first instance, why should he or she automatically suffer a
reduction in back pay for failing to accept a subsequent offer of temporary reinstatement?s

4

The majority dismisses the harsh consequences that could result from its presumption
that offers are unconditional by stating that if an offer is in fact not bona fide, the Secretary may
request relief from the judge. Slip op. n.14. This affords small comfort to a minor who has quit
a job in reliance on an operator• s presumably unconditional offer.
5

My colleagues assert that Dunmire and Bowling do not support the position that "an
offer of reemployment, made pursuant to a temporary reinstatement application, cannot
constitute an unconditional offer to return to work." Slip op. at 10. It is true that this precise
question was not at issue in these cases. However, in both cases the Commission held that
failure to seek a temporary job does not affect a miner• s back pay award. The natural extension
of this logic is that failure to accept a temporary job does not necessarily affect a miner's back
pay award.
28 FMSHRC 318

Furthermore, a holding that a refusal to accept a temporary job always extinguishes a
miner's right to back pay directly contravenes well-established case law under the National Labor
Relations Act. 6 For example, in Oil, Chemical and Atomic Workers International Union v. NLRB,
547 F .2d 598 (D.C. Cir. 1976). the Court held that a willful loss of earnings was not incurred by
workers' rejection of an employer's offer of temporary reinstatement. 547 F.2d at 604.7 Although
the Court acknowledged that an ''unreasonable rejection of a valid, interim offer might in some
circumstances constitute a willful loss of earnings," it emphasized that the purpose of section
1OG), the provision of the National Labor Relations Act providing "appropriate temporary relief,"
29 U.S.C. § 1600) (2004), ''might be undercut if a discharged employee's refusal of an offer of
temporary reinstatement is found to constitute a willful loss of earnings." 547 F.2d at 604 n.7; see
also Morvay v. Maghielse Tool and Die Co., 708 F.2d 229, 232 (6th Cir. 1983) (''an offer is
insufficient to terminate back pay liability ... if the job which [an employee] is offered is
temporary").
As the foregoing discussion illustrates, both the language of the Mlne Act and cogent
policy considerations require the judge in this case to determine whether Osborne's offers were
for temporary or permanent reinstatement. But the judge's inquiry should not necessarily end
there. Granted, if he wete to conclude that the offers were for permanent employment, then his
work would be completed, as his finding that the offers were "suitable" would be an appropriate
one in this case. However, if he were to determine that the offers were only for temporary
reinstatement, I would instruct him to take into account additional factors in deciding if the tefusal
of the temporary jobs constituted a failure on the part of the miners to mitigate their damages.8
This could include the fact that they had other jobs at the time of the offers, and the rate of pay at
those jobs compared to their salary at Misty Mountain. See, e.g., OCAW, 547 F.2d at 604-05. If
the judge were to determine that the miners did not fail to mitigate their damages, I would instruct
him to recalculate their backpay awards accordingly.

6

As the Commission has acknowledged, "[b]ecause the Mine Act's provisions for
remedying discrimination are modeled largely upon the National Labor Relations Act, [the
Commission] ha(s] sought guidance from settled cases implementing that Act in fashioning the
contours within which a judge may exercise his discretion in awarding back pay:" Metric, 6
FMSHRC at 231.
7

The Court also took into account factors involving salary and job location. 547 F.2d at

604.
8

The factual analysis on remand would be different for Wendell McClain than for the
other three miners, because he returned to the mine to work on October 25 \Jntil it closed on
November 13, but did no~ report to work at a different Misty Mountain mine when he was
subsequently offered ajoh there. 27 FMSHRC at 699.
28 FMSHRC 319

In sum, for the foregoing reasons t would vacate the judge's decision and remand the case
to the judge for a finding of whether a suitable job offer was made, and if necessary, for a
recalculation of the back pay award.

28 FMSHRC 320

Distribution
Simon Ratliff
P .O. Box 343
Lookout, KY 41542
Wes Addington, Esq.
Appalachian Citizens Law Center
207 West Court Street, Suite 202
Prestonsburg, KY 41653-7725
Stanley Osborne, Vice President
Misty Mountain Mining, Inc.
P .O. Box 165
Jonancy, KY 41538
Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22ac1 Floor
Arlington, VA 22209
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D .C. 20001-2021

28 FMSHRC 321

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500

WASHINGTON, DC 20001

June 30, 2006

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

v.
Docket Nos. SE 2002-111
SE2003-69
SE2003-189

SEDGMAN

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

v.
DAYID GILL, employed by Sedgman

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

DECISION
BY: Suboleski and Young, Commissioners
This consolidated proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2000) (''Mine Act" or "Act"). Administrative Law Judge Avram
Weisberger upheld citations charging contractor Sedgman with one violation each of 30 C.F.R
§ 77.200 and 30 C.F.R. § 77.1710(g), 1 and assessed penalties for each violation, but vacated the

1

Section 77.200 requires that "[a]ll mine structures, enclosures, or other facilities
(including custom coal preparation) shall be maintained in good repair to prevent accidents and
injuries to employees," while section 77.l 710(g) provides in pertinent part that "[e]acb employee
working in a surface coal mine or in the surface work areas of an underground coal mine shall be
required to wear ... [s]afetybelts and lines where there is adanger of falling."
28 FMSHRC 322

civil penalty for the first citation. 26 FMSHRC 873 (Nov. 2004) (AU). Both Sedgman and the
Secretary of Labor filed petitions for review which the Commission granted.
I.
Factual and Procedural Background
In the spring of2001, Jim Walter Resources ("JWR") hired Sedgman as the general
contractor on a project at JWR's No. 4 Preparation Plant, in Tuscaloosa County, Alabama ("the
prep plant"). Id. at 874; Gov't Ex. 3 (MSHA Accident Investigation Report); Jt. Ex. 1 (JWRSedgman contract). The prep plant, which processes coal for JWR's No. 4 Mine, is subject to
four inspections each year by the Department of Labor's Mine Safety and Health Administration
("MSHA"). Stips. at 2, 1 3.
:
Since its construction in the 1970's, the prep plant has undergone various upgrades and
modifications. 26 FMSHRC at 874. The 2001 project involved major modifications of the plant,
including installation of heavy media cyclones and spirals. Id.; Stips. at 2, ·-iN 5-6. Pursuant to
the JWR-Sedgman agreement, Sedgman was to design and construct the prep plant modification.
26 FMSHRC at 874. At that time, Pro Industrial Welding, Inc. ("PIW"), a contractor from
nearby Brookwood, Alabama, was already performing work for JWR at the prep plant, pursuant
to a contract under which PIW would repair and replace deteriorated steel at the prep plant and at
other .JWR. facilities. Id. at 874-75 & n.l; Stips. at 3, 19.
Consequently, Soogman entered into a subcontract with PIW whereby PIW would
provide labor, materials, equipment, and services for the prep plant modification project. 26
FMSHRC at 874. Pursuant to its pre-existing contract with JWR, PIW would continue to repair
and replace steel that it discovered was deteriorated at the prep plant, in addition to the steel work
involved in the modification process. Id. at 875.
PIW began demolition of some of the existing plant structure and removal of equipment.
Stips. at 3, 1 11. Subsequently, in the first week of June 2001, David Gill, a Sedgman
construction site manager, arrived at the project as Sedgman's sole representative. Id.; 26
FMSHRC at 874.
There were a total of39 PIW ironworkers, welders, pipe fitters, and general laborers at
the JWR site. 26 FMSHRC at 875; Stips. at 3, 4f 13. PIW's construction supervisor was its
President, Keith Crabtree, who was generally present at the site at least part of each day. 26
FMSHRC at 875. Daily direction of PIW's construction activities was otherwise the
responsibility of PIW "lead men." Id.
The JWR-Sedgm~ contract contemplated that existing parts of the prep plant's steel
structure would be demolished in order to permit the construction of the new steel structures to

28 FMSHRC 323

be added as part of the modification project. Id. at 874. Under the Sedgman-PIW contract, PIW
was responsible for determining the exact method to be used to demolish such structures. Id.
Part of the plant modification involved connecting the steel skeleton that had been erected
from the "decant" floor between the second and third floors into the existing fifth and sixth floor
structure on the west side of the prep plant. Id. at 875; Stips. at 4, 120; Tr. 114. While doing so,
on August 27, 200 l, PIW encountered an overhang from the fifth floor to the seventh floor of the
existing structure, which included a reinforced concrete landing extending out from the fifth
floor. 26 FMSHRC at 875; Tr. 410-12. The landing, which supported a stairway between the
fifth and sixth floors, was surrounded by opaque sheeting or siding. 26 FMSHRC at 875.2
PIW' s lead man at the time, Trevor Rhine, was relying upon drawings that djd not include
the landing, so he was surprised to encounter it. Id.; Tr. 410-11 . Consequently, Rhine conferred
with Sedgman's representative Gill, and the two men went to the area. 26 FMSHRC at 875. The
two men looked up at the landing from the second and fourth floors. Id. They agreed the landing
would have to be removed. 26 FMSHRC at 875; Tr. 410-12.
When Rhine requested demolition advice, Gill recommended separating the landing into
pieces, stringing cable slings through the pieces, and using the mobile ·crane on site to "fly" the
pieces out. 26 FMSHRC at 875; Stips. at 5, 'if 23. Two of the PIW workers assigned by Rhine to
that part of the modification project, Ricky Fields and Qary McDonald, subsequently began the
piecemeal dismantlement of the landing on the morning of August 29, 2001, while also working
on connecting the.steel skeleton to the existing structure. 26 FMSHRC at 875-76; Gov't Ex. 3 at
3.
Fields and McDonald used a concrete saw to make two cuts across the width of the
landing, isolating two pieces, each approximately 5 feet long. 26 FMSHRC at 876. The first
piece of the landing was lifted out by the crane and cable without incident, while the second lift
2

According to the judge:
The landing consisted of a steel framework covered by a
concrete slab. One 19-foot channel formed the outer (west) edge
of the support steel. Four cross channels, one at each end (north
and south) and two intermediate channels formed the rest ofthe
supporting steel structure below the landing.
The steel landing structure was supported by support
members from above; these were attached to the outside edge of
the landing at either end (north and south) and at mid-span of the
19-foot channel that formed the outer edge of the landing.

26 FMSHRC at 875.
28 FMSHRC 324

occurred only after an oxygen-acetylene torch was used to cut a piece of rebar that had prevented
separation. Stips. at 5,, 25. Early in the afternoon, Fields and the PIW crane man rigged a
single chain hoist intended to support the remaining landing. Stips. at 5-6, , 26; Gov't Ex. 3 at 4.
At approximately 3:30 p.m., a JWR employee saw Fields on the outer edge of the
remaining landing. Stips. at 6, ~ 28. At first Fields was kicking at what appeared to be a toe
plate, but th~ he left the landing and returned with cutting torches. Id. About 10 minutes later,
McDonald, who was doing steel connection work, saw Fields kneeling on the remaining portion
of the landing. Id. at 6, 129; Gov't Ex. 3 at 4. After McDonald looked away, the landing ~
collapsed, and Fields feli approximately 34 feet to the two-and-a-halflevel floor. Stips. at 6,
ml 29-30; Gov' t Ex. 3 at 4. He was flown by emergency helicopter to a nearby hospital but died
from his injuries during stirgery. Gov't Ex. 3 at 4.
MSHA investigated the accident during the next 2 weeks, and issued a report on February
4, 2002. Gov't Ex. 3 at 5; Stips. at 9,, 41. There is general agreement on how the collapse
occurred. In addition to removing the two landing pieces, some of the steel that supported or
formed the landing was removed or cut by either Fields or McDonald or both. Stips. at 6, 1 27.
Specifically, the 19-foot channel of the steel framework was cut at the north end of the landing,
eliminating any support for the outer edge of the channel at that end as well as the stability
provided by the connection at that end of the channel. 26 FMSHRC at 876. An intermediate
channel cross piece that provided stability to the structure, particularly to the 19-foot channel
supporting the landing, was also removed. Id.
.
This reduction in support reduced the load bearing capacity of the i9-foot channel. Id.
Cutting the north end of the 19-foot channel also eliminated the support provided by the outer
edge north end banger, reducing the number of hangers that supported the outer edge of the
platform from three to two. Id. When Fields cut the middle banger, the landing failed. Id. 3
Along with the accident investigation report, MSHA issued separate citations or orders to
JWR Sedgman, and PIW on February 4, 2002. Each was alleged to have violated the
requirement in section 77.200 that mine structures are to be maintained in good repair, as well as
the requirement in section 77 .171 O(g) that miners are to wear a safety belt and line when there is
a danger of falling. Stips. at 7-8, ifil 31-37.

3

The judge also credited the testimony of Sedgman 's expert witness, Albert Fill, that the
chain hoist attached to help support the structure actually contributed to its collapse.. 26
FMSHRC at ·876 n.2. A second chain hoist was found amidst the wreckage, but apparently had
never been rigged to the structure. Stips. at 6, 1 26.
28 FMSHRC 325

With respect to the citations issued to Sedgman, MSHA designated the violation of
section 77.1710(g) as significant and substantial ("S&S"),4 and on May 3, 2002, the Secretary
proposed a penalty of$160. 26 FMSHRC at 886-88; Stips. at 9,, 42. The citation alleging that
Sedgman violated section 77.200 was also designated as S&S and further alleged that the
violation wa5 d~e to Sedgman's unwarrantable failure.s 26 FMSHRC at 877-84. On December
31, 2002, the Secretary proposed a penalty assessment of $35,000 for Sedgman's violation of
section 77.200, nearly 11 months after the citation for the violation was issued on February 4,
2002. Id. at 884; Stips. at 9, 1 44. During that time and beyond, MSHA conducted a special
investigation that culminated on April 2, 2003, in charges being brought against Gill for the
section 77.200 violation under section 1lO(c) of the Act, 30 U.S.C. § 820(c). See Stips. at 9-10,
iMf 46-55. On August 18, 2003, the Secretary proposed a penalty of$3,500 against Gill. Id. at
10, ~ 57.
After a hearing on the Sedgman citation8, the judge affinned the S&S section 77.1710(g)
citation and assessed the penalty proposed by the Secretary for it. 26 FMSHRC at 886-88. With
regard to the section 77.200 citation, the judge affirmed it and found that the violation was S&S,
but was not persuaded that the violation was unwarrantable or that Gill should be held
individually liable for it under section l lO(c). Id. at 877-84. The judge assessed a penalty of
$1,000, but then vacated it on the ground that the 16-month time period between the accident and
the Secretary's proposed assessment was not reasonable. Id. at 884-86.
The Commission granted Sedgman's petition for review of the findings of violation and
the Secretary' s petition for review of the judge' s decision regarding the penalty assessment for
the section 77.200 violation.

II.
DiSj?osition
A.

Intei:pretation of30 C.F.R.§ 77.200

In finding a violation of section 77.200, the judge rejected the idea that section 77.200
does not apply to structures being demolished, on the grounds that the regulation does not
contain such an exception and that to create one would violate the protective pmposes of the

4

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a . .. mine safety or health hazard."
s The unwarrantable failure terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused by.
"an unwarrantable failure of [an] operator to comply with . . . mandatory health or safety
standards."
28 FMSHRC 326

standard, as workers wottld be exposed to a hazard while working in and around unmaintained
structures pending demolition. 26 FMSHRC at 877-78. The judge found that, because there
were extensive conditions of rust, deterioration, and corrosion in the supporting steel that
rendered it no longer whole or had significantly reduced its thickness, "it was more likely than
not that the supporting structures had deteriorated to a condition that was hazardous," and
concluded that Sedgman violated section 77.200. Id. at 880.
Sedgman maintalns that the inherent logic and language of section 77.200 compels the
conclusion that it does not apply to structures being demolished. Sedgman Br. at 12-16. The
Secretary contends that the language of section 77.200 contains no exception for structures being
demolished. Sec'y Br. at 11-13.
Section 77.200 requires that "[a]11 mine structures, enclosures, or other facilities
(including custom coal preparation) shall be maintained in good repair to preven~ accidents and
injuries to employees." Where the language of a regulatory provision is clear, the terms of that
provision must be enforced as they are written unless the regulator clearly intended the words to
have a different meaning or unless such a meaning would lead to absurd results. See Dyer v.
United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm 'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)); Utah Power &Light Co., 11 FMSHRC 1926,
1930 (Oct. 1989); Consdlidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). It is only
when the meaning is ambiguous that deference to the Secretary's interpretation is accorded. See
Udall v. Tallman, 380 U.S. l, 16-17 (1965) (finding that reviewing bodyniust "look to the
administrative construction of the regulation if the meaning of the words used is in doubt")
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)); Exportal Ltda. v.
United States, 902 F.2d 45, 50 (D.C. Cir. 1990) ("Deference ... is not in order if the rule's
meaning is clear on its face.") (quoting Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir.
1984)).
Here, the judge determined that because Sedgman was responsible for the structure at
issue by virtue of the demolition contract, it could be cited for the deteriorated condition the
structure at the time of demolition. 26 FMSHRC at 879-80; see also id. at 883 (unwarrantable
failure analysis}. A close reading of the citations issued to JWR and Sedgman, as well as the
penalties proposed for those citations,6 however, shows the Secretary was relying on more than
the condition of the structure in alleging that Sedgman violated section 77.200. The judge
quoted from that part of the citation issued to Sedgman that contained language similar to that
found in the citation issued to JWR (26 FMSHRC at 877), but in reality the citation against

of

6

The Secretary proposed a penalty of $1,270 for each of the two citations against JWR,
with JWR agreeing, prior to the hearing on the Sedgman citations, to pay ih a separate
proceeding $1,070 for the S&S section 77.1710(g) violation and $655 for the S&S section
77.200 violation. Stips. at 7, if 35; Jt. Ex. 5 (citations). In contrast, for the section 77.200
violations, each of which was designated S&S and unwarrantable, the Secretary assessed
penalties of$40,000 against PIW and $35,000 against Sedgman. ~tips. at 7-8, ~ 36.
28 FMSHRC 327

Sedgman, after referring to the condition of the structure, goes on to describe Sedgman's
involvement with the demolition of the structure. The citation against Sedgman states:
The [No. 4 Mine] coal processing facility and structures were not
being maintained in good repair to prevent injuries to employees.
Areas of the coal preparation plant are currently under demolition
and reconstruction by employees of{PIW] who are under
advisement by an on-site manager ofSedgman. This employee {of
Sedgman] examined the work area and discussed the demolition
procedure with {PIW] prior to the accident. Steel members and
supporting structure beneath and attached to the concrete deck area
of the 5th floor level were not substantially maintained to prevent _
collapse of the structure. The steel beams and structure associated with the deck support showed signs of deterioration, corrosion, and
fatigue which had seriously reduced their load carrying capacity.
Sedgman had inspected this area ofthe plant during the design
phase ofthis project. Actions by [PIW] in conjunction with the
deterioration and lack ofprecautionary safety measures, resulted
in the failure ofthe supports and structure. An employee of
Sedgman regularly travels on, beneath, and in close proximity to
the failed structure during the course ofhis regular duties.
Citation No. 7676881 (emphases added to highlight language not included in citation against
JWR).7
The essence of the Secretary's allegation is that Sedgman violated section 77.200 because
it had an important role in demolishing the structure, and the method of demolition that was
ultimately employed exposed the PIW workers to the risk of accident or injury. See'y Br. at 13.
According to the Secretary, under section 77.200 Sedgman, as the general contractor, was
obligated to ''maintain" the structure to prevent injuries and accidents to employees; that
obligation continued through the demolition process for which Sedgman was responsible, and
Sedgman failed in that obligation when it permitted the PIW workers to dismantle the structure
in an unsafe manner. See id. at 16-17 ("Sedgman violated the standard because its chosen
method of demolition exposed employees working on the stairwell and landing to hazards.").

7

Neither of the citations issued to Sedgman was submitted at the hearing, but a copy of
each citation was attached to the respective penalty assessments in this case and are thus included
in the record. The citation issued against JWR for the section 77.200 violation (Citation No.
7676879) was submitted by the parties with their Stipulations as Joint Exhibit 5.
28 FMSHRC 328

We thus cannot agree with our dissenting colleague that the Secretary's theory ofliability in this
case is based "solely" orl the deterioration of the steel. See slip op. at 26. 8
As always, the "language of a regulation . .. is the starting point for its interpretation...
Dyer, 832 F.2d at 1066 (citing GTE Sylvania, 441 U.S. at 108). In the absence of a statutory
definition or a technical usage of a term, the Commission applies its ordinary meaning. See, e.g.,
Thompson Bros. Coal Co., 6 FMSHRC 2091, 2096 (Sept. 1984). To "maintain'' is ''to keep in
state of repair, efficiency or validity: preserve from failure or decline." Webster's Third New
International Dictionary 1362 (1993). "[R]epair" when used as a noun means, among other
things, "relative condition with respect to soundness or need of repairing.,, Id. at 1923.

Such definitions of the terms used in section 77.200 support the Secretary's reading of the
standard and application of it to structures undergoing demolition. The concepts of"efficiency,"
''validity," and "soundness" are all relevant to a structure not only while it is in use prior to
demolition, but during the demolition process as well, given the danger a structure can pose to
those who are in its vicinity while it is being demolished. "[F]ailure" of a structure during the
demolition process poses a danger to workers on or around the structure, ihcluding those
employed by contractorS, as this case demonstrates.9
Reading section 77.200 to prohibit demolition in an unsafe manner is particularly
appropriate given that the standard plainly states its pmpose: ''to prevent accidents and injuries to

8

While the Secretary continues to contend the deteriorated condition of the structure is
relevant to the citation against Sedgman for the section 77.200 violation, we note that the judge
credited the testimony ofSedgman's expert Fill that, in this instance, even if the structure had
been composed of new steel, such steel would not have been able to withstand the forces placed
on the structure during its demolition, given the method of demolition that was used. 26
FMSHRC at 876 n.2. The Secretary does not argue that the judge erred in crediting Fill on this
point.
9

Our dissenting colleague (slip op. at 27-28) states that "one of the central problems in
this case" is that the Secretary has not promulgated separate safety standards applicable to
construction activity at sUrface areas of mines, as section 101(a)(8) of the Mine Act mandates she
do ''to the extent practicable." See 30 U.S.C. § 81 l(a)(8)). However, the legislative history of
that provision explains that "[t]he requirement that standards be separately promulgated does not
relieve construction operators from complying with the requirements of the Act generally ...."
S. Rep. No. 95-181 at 24-25 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History ofthe Federal Mine Safety and Health Act ofi977, at 612-13 (1978)
(''Legis. Hist.''). Section 77.200 is one of those requirements, and the Secretary is obligated to
enforce it against contractor Sedgman, particularly in an instance such as this, where contractor
employees were subject to the same hazards as miners. See Bituminous Coal Operators' Ass 'n v.
Secy ofInterior, 547 F.2d 240, 244-45 (4th Cir. 1977) (upholding application of predecessor
statute to Mine Act to contractors, including those involved in prep plant construction).
28 FMSHRC 329

employees." By employing only those methods of demolition which do not lead to accidents or
injuries to employees - an obligation that is no way unreasonable - an operator will comply
with section 77.200 during the demolition of the structure. See U.S. Steel Mining Co., 14
FMSHRC 973, 975-76 (June 1992) (proof of hazard from failure to maintain structure is the only
prerequisite to establishing violation of section 77.200). Moreover, and perhaps most
significantly, in drafting section 77200 the Secretary did not carve out an exception to the
standard for structures being demolished. Indeed, the regulation provides just the opposite, as it
states that it applies to "air structures.
Consequently, we are not persuaded by Sedgman' s argument that once demolition of the
structure began, section 77.200, by its terms, was no longer applicable. Sedgman contends that
demolition of a structure is the very antithesis of''maintain[ing]" it "in good repair," because a
structure being demolished is one that is being removed from any potential for futuie use, and
thus there is no longer any need to "maintain" it "in good repair." See Sedgman Br. at 13, 16.
As discussed, however, those terms can also he understood to support the continued application
of the standard during the demolition process. Consequently, we reject Sedgman's inteipretation
of section 77.200.
Sedgman also contends that the citation should not be affirmed on the ground that the
demolition process employed violated section 77.200, because a reasonably prudent person
would conclude that demolishing a structure is the remedy for a state of poor repair, and that
therefore an operator should not be expected to recognize that section 77.200, a standard that is
general in nature, was applicable in this instance. Sedgman Br. at 15 (citing Alabama ByProducts Corp., 4 FMSHRC 2128 (Dec. 1982) and other Commission cases). According to
Sedgman, all that a reasonably prudent person should have been expected to do in this instance
would be to determine whether the landing was "in sufficiently 'good repair' to demolish." Id. at
16. Section 77.200 is appropriately characterized as "general" in scope. See Freeman United
Coal Mining Co. v. FMSHRC, 108 F.3d 358, 360 (D.C. Cir. 1997) ('°Although [section 77.200] is
admittedly general, it is clear enough to provide notice of the conduct that it requires or
prohibits."). However, section 77.200 is not being inteipreted to prohibit the demolition of the
structure here, but rather the demolition of the structure in a manner that has been conceded to be
unsafe. The citation charged Sedgman with complicity in the demolition, rather than merely
holding it accountable for the pre-existing condition of the structure. Sedgman made no claim
that a reasonably prudent person, taking into consideration the protective purpose of the standard
applying to all structures, could have reasonably believed it could permissibly demolish a
structure in a manner that creates a hazard to miners. Thus, the Commission's "reasonably
prudent person" test provides Sedgman no defense. 10
10

Unlike our dissenting colleague, we do not consider statements in MSHA's Program
Policy Manual ("PPM") regarding training regulations relevant to a reasonably prudent person's
interpretation of section 77.200. See slip op. at 30. The training regulations for miners working
at surface mines and surface areas of underground mines explicitly exclude construction workers
and shaft and slope workers under subpart C of Part 48. See 30. C.F.R. § 48.22(a)(l)(i). Thus,
28 FMSHRC 330

While the judge failed to examine whether the actions taken during the demolition
process violated the requirements of section 77.200, the evidence is such that it can only support
the conclusion that, under the foregoing interpretation of section 77.200, a violation of section
77.200 occurred. As Sedgman's own brief outlines, based on uncontroverted testimony, the PIW
employees took a number of actions contrary to demolishing the structure in a sound manner.
The employees cut the main member support of the outside of the landing and removed the
critical mid-span hanger before they had removed all of the concrete, thus cutting away at least
two-thirds if not more ofthe support for the landing. Sedgman Br. at 17; tr. 372, 595.
Moreover the chain hoist they installed for support failed to supply any such support, and in fact
put additional stress on the steel and cormections. Sedgman Br. at 17-18; Tr. 381-82; 384, 59497; Gov' t Exs. 20-21.
The record thus supplying more than sufficient evidence to uphold the citation:in this
instance, remand is not necessary. See American Mine Servs., Inc., 15 FMSHRC 1830, 1834
(Sept 1993) (citing Donovan v. Stafford Constr. Co., 732 F.2d 954, 961 (D.C. Cir. 1984)
(remand would serve no purpose because evidence could justify only one conclusion)). The
judge's finding that section 77.200 was violated is therefore affirmed in result.
B.

Abuse of Discretion

The judge found that the Secretary did not abuse her discretion in citing multiple
operators for both the section 77 .200 and section 77.171 O(g) violations. 26 FMSHRC at 878-79,
·
887-88. With regard to the section 77.200 violation, the judge took note that JWR was
responsible for mainteruince of the structure while it deteriorated over the years, but the judge
was persuaded that the Secretary did not abuse her discretion by also citing Sedgman because
Sedgman' s contract with JWR obligated Sedgman to comply with all safety laws and supervise
the demolition project, and it was Sedgman that had contracted with PIW to perform the work.
Id. at 879. With respect to the section 77.1710(g) violation, the judge concluded that the
evidence established that Fields was not wearing fall protection when the landing that he was
working on collapsed. Ia. at 887. Accordingly, the judge found a violation of the requirements
of section 77 .171 O(g) that miners wear a safety belt and line when there is a danger of falling, as
there was in this instance because the part of the structure on which Fields was working had no
guarding along its outer edge. Id. The judge further held that, given Sedgman's responsibilities
under its agreement with JWR, Sedgman' s right under its agreement with PIW to require PIW
employees to comply with applicable safety regulations, and that Gill had on more than one
occasion instructed PIW employees to stop working until they had secured adequate fall

the PPM, consistent ·with the standard it is interpreting, distinguishes between maintenance or
repair, and construction or demolition. Moreover, the Commission's decision in Black Diamond
Construction, Inc., 21FMSHRC1188 (Nov. 1999), is also not pertinent here, because it was
based on the Part 48 training regulations which explicitly exclude construction activities. · rn·
contrast, section 77.200 covers "all mine structures, enclosures or other facilities," with no stated
exceptions.
28 FMSHRC 331

protection, the Secretary did not abuse her discretion in citing Sedgman for the violation. Id. at
887-88.
Sedgman maintains that, under the Mine Act, an operator can be charged only for its own
violation, and that even if multiple operators can be charged, as was done here, the Secretary
abused her discretion in citing the independent contractor Sedgman. Sedgman Br. at 18-19. The
Secretary responds that she has unreviewable discretion in deciding to cite an owner-operator, a
contractor, or both, for the violation of a standard. Sec'y Br. at 21-26.
The judge issued his decision in this proceeding, and the parties briefed it on appeal to the
Commission, before the Commission issued its decision in Twentymile Coal Co., 27 FMSHRC
260 (Mar. 2005), appeal docketed D.C. Cir. No. 05-1124 (Apr. 15, 2005) ("Twen~ile If"). In
Twentymile II, the Commission rejected the argument made by the owner-operator there that
section 104(a) of the Mine Act, 30 U.S.C. § 814(a), cannot be read to permit the Secretary to cite
an owner-operator for its contractor's Mine Act violation. 27 FMSHRC at 263-64. The
Commission reaffirmed that the Secretary can do so, but rejected the Secretary's contention that
she has unreviewable discretion in deciding Which operator or operators to cite for a violation.
Id. at 264-66. The Commission's decision in Twentymile II fully answers the arguments raised
by the parties here regarding whether the Secretary has the authority under the Mine Act to cite
multiple operators for the same violation, and whether that authority is unreviewable by the
Commission.
The Commission and courts have consistently recognized that, in instances of multiple
operators, the Secretary generally may proceed against an. owner-operator, an independent
contractor, or both, for a violation of the Mine Act. See id. at 263 (citing cases). The propriety
of the Secretary's decision regarding which party to cite in such an instance is reviewed by the
Commission under an "abuse of discretion" standard. Id. at 266.
Sedgman argues that, as the general contractor for the renovation project, it should not be
cited for a violation that was solely attributable to its subcontractor. Sedgman Br. at 20-21.
However, as the Secretary points out (see Sec'y Br. at 27-29 & n.15), in Bulk Transporta.tion
Services, Inc., 13 FMSHRC 1354, 1359-60 (Sept. 1991), the Commission held that under the
Mine Act's general system of liability without fault, just as an owner-operator may be held liable
for the violations committed by its contractor, a contractor may be held liable for the violative
acts of its subcontractor, and that the Secretary's decision to cite the general contractor in such an
instance would also be reviewed under the abuse of discretion standard.
With respect to the abuse of discretion standard, in Twentymile II the Commission stated
that "[i]n applying this general test, the Commission must determine whether the Secretary's
decision to cite" an operator or contractor for violations committed by another operator or
contractor "'was made for reasons consistent with the purpose and policies' of the Mine Act." 27
FMSHRC at 266 (quoting Old Ben Coal Co. , 1FMSHRC1480, 1485 (Oct. 1979); Phillips
Uranium Corp., 4 FMSHRC 549, 551(Apr. 1982); Extra Energy, Inc., 20 FMSHRC 1, 5 (Jan.
28 FMSHRC 332

1998)). The Commission summarized the principal factors it considers in determining whether
such a decision is "consistent with the purpose and policies" of the Mine Act as follows:
(1) Whether the production-operator, the independent contractor,
or another party was in the best position to affect safety matters; In
this regard, one of the key questions is whether the independent
contractor has adequate size and mining experience to address
safety concerns.

(2) Whether, and to what extent, the production-operator had a
day-to-day involvement in the activities in question. A closely
related factor is "the nature of the task performed by the
contractor."
(3) Whether the production-operator contributed to the violations
committed by the independent contractor.
(4) Whether the production-operator's actions satisfy any of the
criteria set forth in the Secretary's Enforcement Guidelines; ...
The guidelines provide that enforcement action may be taken
against a production operator for violations committed by its
independent contractor in any of the following four situations:
"(l) when the production-operator has contributed by either an act
or an omission to the occurrence of the violation in the course of
the independent contractor's work. or (2) when the productlonoperator has contributed by either an act or omission to the
continued existence of a violation committed by an independent
contractor, or (3) when the production-operator's miners are
exposed to the hazard. or (4) when the production-operator has
control over the condition that needs abatement." . .. [T]he four
criteria overlap in certain respects with the factors separately
applied by the Commission in such cases.
27 FMSHRC at 267 (citations omitted). 11

11

The "Enforcement Guidelines" were issued by the Secretary as an appendix to
regulations requiring that independent contractors provide certain information to productionoperators before beginning work and establishing procedures under which independent
contractors could obtain MSHA identification numbers. See ill MSHA, Dep't of Labor,
Program Policy Manual, Part 45, at 10-16 (2003); 45 Fed. Reg. 44,494, 44,497 (July 1, 1980).
The Enforcement Guidelines set forth four criteria to be used by MSHA inspectors in
determining whether to cite a production-operator for the violations of its independent contractor.
The Commission has repeatedly recognized that the Enforcement Guidelines are policy
28 FMSHRC 333

Sedgman argues that the judge erred in finding that the Secretary did not abuse her
discretion in citing Sedgman for the section 77.171 O(g) violation. According to Sedgman, it did
not supervise Fields, Gill did not observe Fields not wearing fall protection where he should have
been wearing it, Gill's actions did not contribute to the violation, and before the accident, Gill
had instructed PIW employees he observed lacking fall protection that they should be wearing
such protection. Sedgman Br. at 19-20. Sedgman also maintains that Field's failure to wear fall
protection was an aberration in this instance, and that punishing one operator for aberrational
conduct of another serves no purpose under the Mine Act. Id. at 20. 12
The Secretary contends that the findings of fact made by the judge demonstrate that the
Secretary did not abuse her discretion in citing Sedgman for the section 77.171 O(g) violation.
Sec'y Br. at 27-29. The Secretary points to Sedgman's contract with JWR, which r~uires
Sedgman to comply with all safety laws and supervise the prep plant renovation project, as well
as Sedgman's contract with PIW, pursuant to which Sedgman had the right to order PIW to
comply with safe work practices. Id. at 27-28. The Secretary also relies on evidence that Gill in
fact did correct the safety practices of PIW employees on several occasions. Id. at 28.
The judge's decision issued, and the parties' briefs to the Commission were submitted,
before the Commission's decision in Twentymile JI, so neither the judge nor the parties addressed
the extent to which the factors identified in Twentymile II with respect to owner-operators and
their contractors are also applicable to contractors and their subcontractors. In Bulk
Transportation, the Commission considered, among other things, the Secretary's Enforcement
Guidelines in determ.ii$g whether the Secretary abused her discretion in citing the independent
contractor for its subcontractor's violation. 13 FMSHRC at 1360-61. To the extent the
relationship between a contractor and its subcontractor is similar to the relationship between an
owner-operator and its contractor, we will use the analytical framework we set forth in
Twentymile II in applying the abuse of discretion standard.
We believe there is substantial evidence in the record, as we have examined it under
Twentymile II, to support the judge's conclusions that the Secretary did not abuse her.discretion
in citing Sedgman with respect to both the section 77 .200 violation and the section 77.171 O(g)

statements that are not binding on the Secretary and do not alter the compliance responsibilities
of production operators or independent contractors. E.g., Mingo Logan Coal Co., 19 FMSHRC
246, 250-251 (Feb. 1997), affd, 133 F.3d 916 (4th Cir. 1998).
12

Sedgman also contends that it should not be charged with a violation of section 77.200
in this instance, given that it was only a contractor, and riot the operator of the plant~ and it was
the operator, JWR, that was responsible for the structure over the long period of time during
which it deteriorated.. Sedgman Br. at 20-22. As we have found, however, Sedgman was not
cited by the Secretary due to the pre-existing condition of the structure, but rather because of the
method employed in demolishing the structure. See supra, slip op. at 6-7.
28 FMSHRC 334

violation. 13 For instance, in Twentymile II, in determining whether the contractor or the owneroperator also cited for the violation was in the best position to prevent the violation, the
Commission held that the contractor was, because the contractor was carrying out customized
mining activities and performing those duties autonomously, and the violations involved the
contractor's equipment. 26 FMSHRC at 268-69.

In contrast, the violations here revolve around the actions of PIW employees Fields and
McDonald. There is no evidence that PIW was hired because of its special expertise to perform a
unique task. Rather the _e vidence is that Sedgman decided to use PIW to sUpply, among other
things, the labor for the prep plant project. 26 FMSHRC at 874; Stips. at 3, ~ 9. Sedgman was
obligated under its contract with JWR to supply such labor as was needed to complete the
project, and to supervise the project to its completion. Jt. Ex. 2, Sec. 2.0 at 3. Consequently, the
Sedgman-PIW agreement required that PIW "prosecute [its] work at such times and iri such order
as [Sedgman] considers necessary," and provided that if PIW did not do so Sedgman could
ultimately declare PIW in default under the contract. Jt. Ex. 3 at 2 {Art. IV). Thus, unlike the
relationship between the contractor and the owner-operator in Twentymi/e II, there is no evidence
that PIW was operating autonomously from Sedgman.

In addition, consistent with those terms of the Sedgman-PIW agreement, there is ample
record evidence that Sedgman had significant day-to-day involvement in the activities that led to
the violations. Structural demolition was expressly within the scope of the work Sedgman agreed
to perform for JWR. Jt. Ex. 2, Sec. 2.0 at 5. While the judge did find that PIW was responsible
for determining the exact method that would be used to demolish various structures during the
project (see 26 FMSHRC at 874), it is also true that PIW's lead man, Rhine, specifically
consulted with and sought the advice ofSedgman's site manager, Gill, regarding the demolition
of the structure in question here. Id. at 875; Stips. at 5,, 23. 14
Moreover, as the judge found, under the· Sedgman-PIW agreement, Sedgman had the
right to order PIW to correct unsafe practices, and if PIW failed to do so, Sedgman could have, in
its discretion, terminated the contract with PIW. 26 FMSHRC at 888; Jt. Ex. 3 at 5 (Art. XVIIl).
As discussed by the judge, Gill, at various times during the project, ordered PIW employees who

13

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(l). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Ed°;son Co. v. NLRB, 305
U .S. 197, 229 (1938)).
14

Thus, this case is unlike Twentymile II, where the Commission found a total lack of
evidence regarding the owner-operator's involvement in the violations. See 26 FMSHRC at 270~
72.
28 FMSHRC 335

should have been tied off to stop working and do so. 26 FMSHRC at 888. 1s Thus, there is
record evidence that Sedgman not only supervised the work of the PIW employees, but that the
supervision included the employees' compliance with safe work practices~ 16
The foregoing also establishes that criteria in the Secretary's aforementioned
Enforcement Guidelines have been satisfied in this case. Sedgman both supervised and worked
intimately on the project with PIW. Its failure to observe and correct both violations was a
significant omission on its part. If Gill, during the course of his supervision of the project that
day, had at some point visited the landing and seen how it was being demolished, it is clear he
would have stopped the PIW workers from using, or continuing in, the dangerous m6thod of
demolition they had undertaken. Tr. 539-42. Given the tenns of Sedgman's contract with PIW,
it is plain that Gill would have been acting well within Sedgman's right to stop the PIW workers
from so proceeding. Thus, we also conclude that another Criterion in the Enforcement Guidelines
was met ~ this instance, as Sedgman had significant control over the conditions in question. 17
Finally, we note that this is not a case in which the Secretary merely cast a broad net to
cite all of the operators at the JWR plant. While the Secretary issued multiple citations in this
case, each citation appears to have been carefully tailored to reflect the nature and extent of the
involvement of the party cited in the section 77.200 and section 17.l 710(g) violations. See supra
slip op at 7 n.7; Jt. Exs. 4-5.

15

Consequently, we cannot agree with Sedgman's characterization ofFields' failure to
wear a safety belt as aberrant conduct in this instance. See Sedgman Br. at 20.
16

Commissioner Suboleski notes that operators may assist contractors to comply with
federal mining regulations without exercising substantial management control that would lead to
liability by an operator for the violations of its independent contractor. As the U.S. Court of
Appeals for the D.C. Circuit has reasoned, "Government regulations constitute supervision not
by the employer, but by the state." Local 777, Seafarers Int'/ Union v. NLRB, 603 F.2d 862, 875
(D.C. Cir. 1978) (determination of status of taxi cab drivers as "employees" or "independent
contractors" under the National Labor Relations Act). The court further explained that, "because
the employer cannot evade the law ... in requiring compliance with the law he is not controlling
the [independent contractor]. It is the law that controls the [independent contractor]." Id.; see
also Bryant v. Dingess Mine Serv.,10 FMSHRC 1173, 1185 (Sept. 1988) (Commissioner Doyle,
dissenting). Use of this reasoning avoids the paradoxical result that operators who assist their
contractors in complying with the regulations to enhance miner safety receive dual citations,
while those who ignore the potentially unsafe work practices of their contractors do not.
17

Gill's oversight of the project also means that he easily could have been on or around
the structure while it was demolished, thus satisfying the additional criteria in the Secretary's
Enforcement Guidelines that a Sedgman employee was exposed to the hazard posed by the
section 77.200 violation.
28 FMSHRC 336

For the foregoing reasons we affirm the judge's determinations that the Secretary did not
abuse her discretion in citing Sedgman for the section 77.200 and section 77.171 O(g) violations.
C.

Penalty for Section 77 .200 Violation

Jn assessing the penalty after finding that Sedgman had violated seetion 77.200, the judge
found that the gravity of the violation was relatively serious, as he had detailed in concluding that
the violation was S&S. 26 FMSHR.C at 884. He also found, consistent with finding the
violation not to be unwarrantable, that the level of negligence was less than that originally
alleged by the Secretary in proposing the penalty. Id. Placing "considerable" weight on this
factor, and "consider[ing]" the remaining penalty factors of section l lO(i) of the Mine Act, the
judge found a penalty of $1,000 to be appropriate for the violation. ·Id.

The judge then addressed Sedgman's request to vacate.the penalty because it had not been
proposed within a reasonable time, as required by section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). 26 FMSHR.C at 884-86. The judge concluded that the time betWeen the accident and
the issuance of the accident investigation report (more than 5 months) and the nearly 11-month
time period between the investigation report and the penalty pro?.>sal resulted in an unreasonable
delay. Also finding that the Secretary had failed to provide support for her stated explanation for
the 11 months taken to propose a penalty after issuing the citation for the section 77.200
violation, the judge vacated the penalty assessment. Id. at 885-86.
1.

The Judge's Deeision to Vacate the Penalty Assessment

The Secretary m3.intains that under the Mine Act, the Commission cannot vacate a
penalty assessment based on a finding that there was an unreasonable delay in the proposal of the
penalty, and that even if it can do so, it may not without a finding that the.operator was
prejudiced by the delay. Sec' y Br. at 30-42. According to the Secretary, the judge in any event
erred in calculating the amount of time at issue in this case, and further erred in failing to
recognize that the amount of time was reasonable given the particular facts and circumstances of
this case. Id. at 43-48. Sedgman responds that the judge acted well within Commission
authority under the Mine Act in vacating the assessment {Sedgman Br. at 32-33), and that he
correctly followed Commission precedent on the issue. Id. at 22-31.
Section 105(a) provides in pertinent part that "[i]f, after an inspection or investigation, the
Secretary issues a citation or order ... , he shall, within a reasonable time after the termination of
such inspection or investigation, notify the operator by certified mail of the civil penalty
proposed to be assessed ... for the violation cited ...." 30 U.S.C. § 815(a) (emphasis added).
Consequently, the Commission has held that, while delay on the Secretary's part in proposing a
penalty may not vitiate the civil penalty proceeding and the finding of a violation, 18 an inordinate

18

The legislative history of the Mine Act states with regard to section 105(a) that ''there
may be circumstances, although rare, when prompt proposal of a penalty may not be possible,
28 FMSHR.C 337

and unjustifiable delay might well vitiate the imposition of the penalty itself. Twentymile Coal
Co., 26 FMSHRC 666, 682 (Aug. 2004), rev'd on other grounds, 411 F.3d 256 (D.C. Cir. 2005)
("Twentymile f l The requirement in section 105(a) that the Secretary propose a penalty
assessment ''within a reasonable time,. does not impose a jurisdictional limitations period, but
rather turns on whether the delay is reasonable under the circumstances of each case, as the
Commission examines whether adequate cause existed for the Secretary's delay in proposing a
penalty and considers whether the delay prejudiced the operator. Salt Lake County Rd. Dep 't, 3
FMSHRC 1714, 1716-17 (July 1981 ); Medicine Bow Coal Co., 4 FMSHRC 882, 885 (May
1982),· Steele Branch Mining, 18 FMSHRC 6, 13-14 (Jan. 1996); Black Butte Coal Co., 25
FMSHRC 457, 459-61(Aug.2003).
The Secretary' s argument that the Commission lacks the authority to vacate _a penalty
assessment on the ground that the penalty proposal was unreasonably delayed was essentially
rejected by the Commission in Twentymile I. See 26 FMSHRC at 686-88. The reviewing court
passed on the question when the Secretary repeated that argument on appeal. See 411 F .3d at
261 ~62 .

The Secretary now maintains that Tazco, Inc., 3 FMSHRC 1895, 1896-97 (Aug. 1981), in
which the Commission stated that the Mine Act requires that some penalty must be assessed by
the Commission for each violation found, prevents the Commission from vacating a penalty
assessment in a case while allowing the underlying citation to stand. See.Sec'y Br. at 35. In
Tazco, at issue was a judge's decision, as
of approving a settlement, to sua sponte suspend a
penalty in its entirety due to the operator' s tennination of the foreman responsible for the
underlying violation. 3 FMSHRC at 1895-96. Consequently, we do not find Tazco controlling
on the question of whether, once he has assessed a penalty, a judge may vacate the assessment
due to the Secretary's delay in proposing the penalty. The Commission stated that under section
110 of the Mine Act, 30 U .S.C. § 820, the Commission ''must assess some penalty'' for each
violation found" (3 FMSHRC at 1897), and that is what the judge did here, before vacating the
assessment pursuant to section 105(a).19

part

and the [Senate] Committee does not expect that the failure to propose a penalty with promptness
shall vitiate any proposed penalty proceeding." S. Rep. No. 95-181, at 34 (1977), reprinted in
L egis. Hist. at 622 (1978).
19

By reducing the penalty to zero in Tazco on the grounds that he did, the judge there
was, in effect, applying a factor not found within section l lO(i), 30 U.S.C. § 820(i), to detennine
the penalty amount, a practice which the Commission has consistently found to be prohibited by
the terms of the Mine Act. See RAG Cumberland Res., LP, 26 FMSHRC 639, 658 (Aug. 2004)
(citing cases), affd sub nom. Cumberland Coal Res., LP v. FMSHRC, No. 04-1427, 2005 WL
3804997 (D.C. Cir. Nov. 10, 2005) (unpublished). Thus, the broader pronouncements contained
in Tazco were unnecessary to the decision the Commission reached. Moreover, we cannot ignore
the import of the exact terms used in section 110 of the Mine Act. Section 110 provides that the
Secretary "shall ... assess[] a civil penalty," but with respect ~ the Commission it only states
28 FMSHRC 338

In reviewing a judge's determination that there has been an unreasonable delay in the
Secretary's proposal of a penalty under section 105(a}, the Commission applies an abuse of
discretion standard, though any factual determinations the judge made in arriving at his
conclusion are subject to substantial evidence review. Black Butte, 25 FMSHRC at 459-60. The
abuse of discretion standard includes errors oflaw. Utah Power & Light Co., Mining Div., 13
FMSHRC 1617, 1623 n.6 (Oct. 1991).
Because the judge here applied the Commission's decision in Twentymile I, and that
decision was subsequently reversed on appeal, we must vacate the judge's order. However, even
if our decision in Twentymile I were controlling, we would vacate the judge's decision here on
the ground that he committed a clear error oflaw.
In Twentymile I, the court rejected the Commission's interpretation of how the: time
period at issue should be calculated. In Twentymile /, as the court recognized there was an
accident and a subsequent week-long investigation that resulted in MSHA issuing an order to the
operator alleging a violation of a Mine Act regulation. 411 F .3d at 258. The court did not
mention, however, that the order was terminated 4 days later by the MSHA inspector who had
issued it, after the operator took actions in response to the order. See 26 FMSHRC at 670.
Instead, the court jumped forward 6 months, to the issuance of the accident investigation report.
See 411 F.3d at 258.
The Secretary argued in Twentymile I that under section 105(a}, the time period at issue
did not start until the accident investigation report was issued. 411 F.3d at 261. The court found
this interpretation of the Mine Act reasonable and because it came from the Secretary, deferred to
it instead of to the Connirission's interpretation. Id. at 262. The court based its conclusion on
the language of section 105(b)(1 )(B) of the Mine Act, which requires the Seeretary in assessing a
penalty to consider the operator's good faith '"in attempting to achieve rapid compliance after
notification ofa violation."' Id. (quoting 30 U.S.C. § 815(b)(l)(B) (emphasis in decision)). The
court apparently read ''notification of a violation" to include any MSHA report issued regarding
the events that gave rise to the violation, including an accident investigation report issued after
the citation or order charging a violation was issued and even terminated. Believing that
Congress included the operator's subsequent response to such a report among the relevant
penalty criteria, the court held that it could not be plausible that any determination of the
reasonableness of the time in which it took to assess the penalty could begin to run before the
time an operator could respond to such notice of the violation. Id.

that "[t]he Commission shall have authority to assess all civil penalties provided in [the] Act. 30
U.S.C. § 820(a), (i) (emphasis added). The Commission in Tazco quoted these provisions, but
did not recognize the difference in the language employed.
28 FMSHRC 339

This case does not present the same issue as Twentymile /, because the accident
investigation report was issued on the same day as the citation.20 26 FMSHRC at 884. The
judge, however, did not calculate the period at issue with respect to that date. Rather, he
included the 5 months between the accident and the issuance of the accident investigation report,
even though up until the latter occurred, there was no citation or order for which a penalty could
be proposed. See 26 FMSHRC at 884-86.
The judge thus clearly considered the aCcident as the "starting point" for determining the
reasonableness of the time it took for a penalty to be proposed, but that is contrary to the plain
meaning of the Mine Act. Section 105(a) designates the starting point of the period at issue as
''the termination of such inspection or investigation" and ''inspection or investigation" clearly
refers to an inspection or investigation that leads to the issuance of a section 104 ci~tion or
order. 30 U.S.C. § 815(a). Here, where there is no evidence that there was a delay between the
end of an investigation and the issuance of the citation or order,21 the starting point is the
issuance of the citation or order for which ·the Secretary is proposing a penalty.22

20

Jn any event, we believe the Secretary's interpretation deferred to by the court is

contrary to the plain meaning of the Mine Act. The reference to ''notification of a violation., in
section 105(b)(1 )(B) clearly refers not to investigation reports, but rather to citations and orders,
as it is a citation or order that supplies an operator with ''notification of a violation," and provides
the impetus for an operator's "attempt[) to achieve rapid compliance" with the Mine Act.
Investigation reports can issue regardless of whether an accident or incident results in any
citation or order, and where there are citations or orders, such reports may be issued before,
concurrent with (as occurred here), or well after (as occurred in Twentymi/e I) any citation or
order issued as a result of the matter being investigated.
21

We note that 5 months is not an unreasonable amount of time during which to conduct
an investigation of a fatal accident, particularly a complex one such as this, where the chain of
events must be rC-constructed..
·
22

Jn addition, another Mine Act provision directly governs the reasonableness of a time
period before which a citation or order issues. Section 104(a), which provides only for citations
and orders, and not penalties, states in pertinent part:

If, upon inspection or investigation, the Secretary or his
authorized representative believes that an operator of a coal or
other mine subject to this Act has violated this Act, or any
mandatory health or safety standard, rule, order, or regulation
promulgated pursuant to this Act, he shall, with reasonable
promptness, issue a citation to the operator.

30 U.S.C. § 814(a) (emphasis added). There has been no claim here that the Secretary failed to
issue the citation to Sedgman ''with reasonable promptness," and below Sedgman limited its
28 FMSHRC 340

Because the time period between termination of the investigation and the penalty
assessment was less than I I months in this case, remand for a determination ofwhether such a
delay was reasonable under section I05(a) is not necessary. Such a delay in this case is not
unreasonable, particularly given that there was a related ongoing section I I 0(c) investigation.
See Steele Branch, I8 FMSHRC at 13-14 (I I-month delay in case in which Secretary failed to
proffer any explanation found not to be unreasonable in light of Commission's notice of
Secretary's high caseload at the time); see also Black Butte, 25 FMSHRC at 458-61 (accepting
Secretary' s explanation for I 3-month delay); cf Twentymile I, 4 I I F .3d at 262 (holding 11month time period the court considered to be at issue not unreasonable without further
explanation).23
2.

The Judge' s Penaltv Assessment

We turn now to the penalty the judge initially assessed pursuant to section l lO(i) of the
Mine Act before vacating it under section 105(a). The Secretary argues that the judge erred in
failing to explain why h~ reduced the penalty assessed from the proposed amount of $35,000 to
$1,000, and in failing to .m ake findings with respect to four of the six penalty criteria of section
I lO{i). Sec'y Br. at 48-49. Sedgman maintains there was ample reason for the judge to reduce
the penalty as he did, and there is record evidence regarding each of the six penalty criteria that
supports the penalty the judge assessed. Sedgman Br. at 36-39.
While Commission judges are accordecl. broad discretion in assessing civil penalties under
the Mine Act, such discretion is not unbounded and must reflect proper consideration of the
penalty criteria set forth in section 11 O(i) and the deterrent purpose of the Act 24 Westmoreland

claim of unreasonable delay to the time period between issuance of the citation and the
Secretary' s penalty proposal. Sedgman Post-Hearing Br. at 34 n.11 .
23

Below, the Secretary stated that the reason for the passage of time with respect to both
the Sedgman penalty proposal and the 110(c) charge against Gill was problems with the
implementation of a new computer system for her assessments, and she promised to offer
evidence in support of this claim. Stips. at 11, ~ 62. As the judge discussed in his decision,
however, no such evidence was ever submitted. See 26 FMSHRC at 885. Having promised an
explanation, the Secretary should have further addressed the issue, instead of leaving the judge
with no explanation.
24

Section 11 O(i) states in pertinent part:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider [1] the operator's history
of previous violations, [2] the appropriateness of such penalty to
the size of the business of the operator charged, [3] whether the
28 FMSHRC 341

Coal Co., 8 FMSHRC 491, 492 (Apr. 1986) (citing Sellersburg Stone Co., 5 FMSHRC 287, 29094 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984)). In Sellersburg, the Commission stated
that "[w]hen an operator contests the Secretary's proposed assessment of penalty, thereby
obtaining the opportunity for a hearing before the Commission, findings of fact on the statutory
penalty criteria must be made." 5 FMSHRC at 292 (emphasis added). In addition, Commission
Procedural Rule 30(a) provides:

In assessing a penalty the Judge shall determine the amount of
penalty in accordance with the six statutory criteria contained in
section 11 O(i) ... and incorporate such determination in a written
decision. The decision shall contain findings offact and
conclusions oflaw on each ofthe statutory criteria ... .
29 C.F.R. § 2700.30(a) (emphases added). In reviewing a judge's penalty assessment, the
Commission detennines whether the penalty is supported by substantial evidence and is
consistent with the statutory penalty criteria Hubb Corp., 22 FMSHRC 606, 609 (May 2000).
While "a judge's assessment of a penalty is an exercise of discretion, assessments lacking record
support, infected by plain error, or otherwise constituting an abuse of discretion are not immune
from reversal . . .." U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984).
Here, the judge made findings with respect to two of six factors, gravity and negligence,
but not the other four. See 26 FMSHRC at 884. Three of those four factors were stipulated to
- that Sedgman is a small operator, it had no previous history of violations, and the penalty
would not affect Sedgman's ability to continue in business. See Stips. at 13, ft 74, 76, 78.25
However, the Commission requires the judge to make findings of fact on all of the section 11 O(i)
criteria in order to provide the penalized party and the regulated community with the appropriate
notice as to the basis upon which the penalty is being assessed, as well as to supply the
Commission and any reviewing court with the information needed to accurately determine if the
penalty assessed by the judge is appropriate, excessive, or perhaps insufficient. Cantera Green,
22 FMSHRC 616, 621 (May 2000) (citing Sellersburg, 5 FMSHRC at 292-93); see also Hubb
Corp., 22 FMSHRC at 612; Douglas R. Rushford Trocking, 22 FMSHRC 598, 601 (May 2000).
Consequently, in Jim Walter Resources, Inc., 19 FMSHRC 498, 501(Mar. 1997), the

operator was negligent, [4] the effect on the operator's ability to
continue in business, [5] the gravity of the violation, and [6] the
demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.
30 u.s.c. § 820(i).
25

Sedgman cites the narrative filed with the penalty petition as evidence of the last
factor, as it states the citation was abated within a reasonable period of time. Sedgman Br. at 38
n.6.
28 FMSHRC 342

Commission vacated a judge' s penalty assessment where the judge failed to "make specific
findings on all six penalty criteria," including criteria that were the subject of stipulations by the
parties.
The need for all six criteria to be addressed in the judge's decision is even more important
in cases such as this, where the penalty assessed by the judge substantially diverged from the one
proposed by the Secretary.26 "If a sufficient explanation for [such·a] divergence is not provided,
the credibility of the adrl:rinistrative scheme providing for the increase or lowering of penalties
after contest may be jeopardized by an appearance of arbitrariness." Sellersburg, 5 FMSHRC at

293.
Here, it appears that the judge substantially diverged from the penalty the Secretary
proposed because the judge concluded that the Secretary had failed to prove "high negligence" on
the part of Sedgman. After finding the gravity of the violation to be high, which was collSistent
with his conclusion that the violation was S&S, the judge stated:
[F]or the reasons set forth above [where Sedgman's violation was
found not to be unwarrantable] the level of negligence is leSs than
that originally found by the Secretary as set forth in the narrative
findings for a special assessment appended to the petition. Thus, in
weighing the various factors set forth in Section 11 O(i) of the Act, I
accord considerable weight to the less than high degree of
negligence. Placing considerable weight on this factor, and
consideriilg the remaining factors in section 11 O(i) of the Act, I
find that a penalty of$1,000.00 is appropriate for this violation.
26 FMSHRC at 884. The narrative to which the judge refers simply states that the violation
resulted from the operator' s high negligence, an issue he decided in conjunction with the
unwarrantable failure allegation. See id. at 882-84. The j udge's analysis of the eVidence of
negligence was limited to Sedgman's knowledge of the condition of the structure prior to
demolition work. Id.
The judge's analysis ofSedgman's negligence was thus consistent with his analysis of the
underlying citation issued to Sedgman, which he read as being limited to the pre-existing
condition of the structure. As we have found, however, the citation also was directed at
Sedgman's involvement in the demolition of the structure. Consequently, the judge should have
conducted a negligence analysis more in keeping with the conduct alleged by the citation to be
violative. Because he did not, substantial evidence does not support his negligence finding.

26

The judge redtlced the penalty proposed by the Secretary by approximately 97%. 26
FMSHRC at 884; Sec'y Br. at 48-49.
28 FMSHRC 343

Given that, in detennining the degree of Sedgman's negligence, the judge did not address
Sedgman's conduct as it related to actions alleged in the citation to constitute a violation of
section 77.200 - the demolition of the landing - we are vacating the $1,000 penalty he initially
assessed, and remanding the case to him. Cf U.S. Steel, 6 FMSHRC at 1432 (vacating gravity
and negligence :findings due to lack of support in the record). On remand the judge can analyze
the evidence ofSedgman's negligence consistent with the allegations contained in the citation,
address that factor, as well as make explicit .findings on all five other section 11 O(i) penalty
criteria, and reassess an appropriate penalty.

m.
Conclusion
For the foregoing reasons, we affirm the judge's detemiiriations that Sedgmm violated 30
C.F.R. §§ 77.200 and 77.1710(g), vacate the judge's decision regarding the penalty to be
assessed for the section 77.200 violation, and remand the case to him for a reassessment of that
penalty consistent with the instructions contained herein.

. 28 FMSHRC 344

Commissioner Jordan, concurring:
I agree with the· analysis adopted by Commissioner Suboleski and Commissioner Young
in holding that 30 C.F.R. § 77.200 applies to structures in the process ofbeing demolished, and
that therefore they must be maintained in good repair. I also agree with their ruling that Sedgman
violated this regulation. I am also in accord with their discussion and holding in section Il.C.2.
of their opinion, in which they vacate the penalty initially assessed by the judge and remand the
case to him for reassessment.
.
.
I write separately, however, because, although I agree with the holding of my colleagues
that the Secretary did not abuse her discretion in citing Sedgman for the violations of section
77.200 and 30 C.F.R. § 77 .171 O(g), I disagree with their analysis, which applies standards set
forth in the majority opinion in Twentymile Coal Co., 27 FMSHRC 260 (Mar. 2005), :appeal
docketed D.C. Cir. No. 05-1124 (Apr. 15, 2005) ("Twentymile Il'}. In my dissent in that case I
expressed the view that the majority had erred in raising the level of the evidence necessary to

support the Secretary's enforcement decision. Id. at 279, 282. Consequently, in this case I would
apply the standards articulated by Commission precedent prior to the issuance of.the Twentymile
II decision in finding that the Secretary did not abuse her discretion iri citing Sedgman.
However, ~ven applying the .Twentymile ll criteria utilized by my colleagdes in this case, I agree'
with them that no abuse of discretion occurred here.
Regarding the judge's decision to vacate the penalty assessment, l agree with my ·
colleagues that the judge erred in considering the ·accident as the starting P<>mt for determining·
the reasonableness of the time it took for the Secretary to propose a penalfy, as in.this case. that
point should be the issuance of the relevant citation or order. I also agree that because the time
period between the termination of the investigation and the penalty assessment was less than 11
months, the delay was not unreasonable. Accordingly, I join in the holding of my colleagues to
vacate the judge's order.

28 FMSHRC 345

Chairman Duffy, dissenting in part:
I dissent from my colleagues' decision on the question of whether Sedgmm violated 30
C.F.R § 77.2001 because I believe that the majority decision is inconsistent with the language of
the standard, MSHA' s own interpretation of its regulations, and Commission precedent. The
majority is attempting to uphold a citation issued to Sedgman, an independent contractor, based
on a legal theory different from that relied upon by the Secretary. In doing so, the majority reads
the standard in an unduly expansive way that is not logical and lacks legal support.
This case involves a tragic accident in which Ricky Fields, an employee ofPIW,
Sedgman' s subcontractor, died when the landing on which he was kneeling collapsed and fell 34
feet 26 FMSHRC 873 (Nov. 2004) (AU). Fields was located on the landing bec~se he was in
the process of demolishing it. The landing collapsed and fell after he cut the middle hanger
supporting the landing - an illogical and unexpected action.2 Even though Fields was standing
and kneeling on a landing that was in the process of being demolished and could have lost his
balance or fallen in any number of ways, he was not wearing a safety belt and line and had no
other fall protection. 26 FMSHRC at 876.

In my view, the primary violation in this case was an extremely serious violation of 30
C.F.R § 77.171 O(g),3 which requires fall protection for miilers at a surface work area. MSHA
issued citations based on section 77 .171 O(g) to JWR, Sedgman, and PIW. I agree that Sedgman
is liable for violating section 77.1710(g).4 Although Fields was an employee of PIW, Sedgman's
on-site representative, David Gill, had previously observed PIW employees working without
being·equipped with necessary fall protection (26 FMSHRC at 888) and therefore was aware of
the potential for serious injury. Moreover, I conclude that Gill was sufficiently involved in the
planning of the demolition on the day in question (id. at 875-76) that Sedgman should be liable
for the lack of fall protection.

1

Section 77.200 provides that "[a]ll mine structures, enclosures, or other facilities
(including custom coal preparation) shall be maintained in good repair to prevent accidents and
injuries to employees."
2

Earlier, Fields and another PIW employee had removed two portions of the landing
platform and had cut two steel supports that were providing support and stability to the landing.
26 FMSHRC at 876.
3

Section 77.171 O(g) provides that "[eJach employee working in a surface coal mine or in
the surface work areas of an underground coal mine shall be required to wear .. . (s]afety belts
and lines where there is a danger of falling."
4

I also agree with my colleagues that the Secretary did not abuse her discretion in citing
JWR, Sedgman, and PIW for the violation of section 77.171 O(g).
28 FMSHRC 346

The principal issue on review in this case involves the additional citations issued to JWR,
Sedgman, and PIW for alleged violations of section 77.200. The Secretary argues that Sedgman
is liable under this standard because "Sedgman [had] to do something so that employees working
on the stairwell and the landing during demolition would be protected from the hazards of
deteriorated steel." Sec'y Br. at 13. According to the Secretary, "Sedgmail violated the standard
because the evidence conclusively established that the supporting steel had deteriorated to a
condition that was hazardous, and therefore, the supporting steel was not maintained in safe
condition while employees were performing demolition work on the structure." Id. at 14 n.6
(emphasis in original). In other words, the Secretary's theory of liability is based solely on the
fact that the steel supports holding the landing had deteriorated over the years, and she interprets
the standard to apply to any work activities being conducted on the landing while the steel was in
a deteriorated condition. s Thus, the Secretary's theory of liability is based on the deteriorated
condition of the steel supports; she does not contend in her brief that section 77.200 applies to
the demolition process in and of itself.
I am firmly convinced that there is no legal or factual basis for finding Sedgman liable for
violating section 77.200. The Secretary's theory as to Sedgman's liabilify simplyinakes no sense
and appears to be an effort to find an additional violation because an accident resulted in a
fatality. Although the Secretary argues that the violation resulted because of the deteriorated
condition of the steel, Sedgman could not have become liable for more than 20 years of pteexisti.ng deterioration sirliply because it signed a contract to demolish cert:ain structures in the
prep plant and to construct new ones. That deterioration could only be attributed to JWR, the

s Notwithstanding the language from the Secretary's brief quoted above, my colleagues
argue that the Secretary' s theory is not based solely on the deteriorated condition of the steel
supports by pointing to the following sentence: "Sedgman violated the standard because its
chosen method of demolition exposed employees working on the stairwell and landing to
hazards. Slip op. at 7 (quoting Sec'y Br. at 16-17). However, the context in which the sentence
is contained indicates that the Secretary continued to base Sedgman' s liabiiity on the deteriorated
steel. In the discussion preceding the sentence, the Secretary maintained that the varying
interpretations of what constituted compliance with section 77 .200 offered by MSHA personnel
were consistent with the Secretary's position at trial and that there were different methods that
could be used to achieve compliance (such as using sound vibration tests to determine whether
the steel had deteriorated). The Secretary then states that "Sedgman did not violate the standard
because it failed to follow the advice ofMSHA personnel." Sec'y Br. at 16. After that comes
the sentence relied upon by the majority: "Sedgman violated the standard because its chosen
method of demolition exposed employees working on the stairwell and landing to hazards." Id.
at 16-17. Read in this context, it is clear that the sentence means that Sedgman was liable
because demolition proceeded before anyone had addressed the hazards posed by deteriorated
steel.

28 FMSHRC 347

owner and operator of the plant for that time period, or PIW, which had signed a separate
contract with JWR under which it was to repair or replace deteriorating steel in the plant.6
The Secretary's theory of liability regarding Sedgman becoines even more problematic
because the judge below credited the testimony of Sedgman's expert, Albert Fill, that the
accident was not caused by the deteriorated condition of the steel (26 FMSHR.C at 876 n.2) - a
finding that the Secretary does not challenge on appeal. Rather, the accident was caused by the
removal of critical support members from the landing while Fields was still standing or kneeling
on it. If the landing would have fallen regardless of the condition of the steel, then the accident
occurred not because structures associated with the landing had been allowed to deteriorate, but
because the demolition activities themselves were being conducted in an unsafe manner.
The majority seeks to uphold the violation under an alternative theory not relied upon by
the Secretary- that the "maintained in good repair" language in section 77.200 can be read to
apply to the process of conducting demolition activities regardless of whether a structure is
deteriorated or not. Slip op. at 6-8. In other words, the majority implicitly rejects the Secretary's
theory that Sedgman is liable because of the deteriorated condition of the steel supports.
However, in an attempt to show that the Secretary actually subscribed to their alternative theory
as well, my colleagues point to certain language in Sedgman's citation that mentioned its role in
demolishing the landing. They mistakenly assert that this language demonstrates that the
Secretary is really arguing that Sedgman is liable because of the ''unsafe manner" in which the
PIW employees demolished the landfug.7 Slip op. at 7. ·The majority then expansively reads the
"maintained in good repair" language in section 77.200 to apply to any situation where a
structure is in the process of being demolished.
I believe that interpreting section 77.200 to apply to demolition activities is an attempt to
fit a square peg into a round hole and arises largely from the Secretary's confused theory of the
case advanced at trial and reiterated on review before this Commission. More than that, it
highlights what is one of the central problems in this case: the
promulgated
. Secretary has never
.
6

I believe that section 77.200 could properly be applied to JWR or PIW because
hazardous conditions existed at the landing irrespective of whether demolition activities were to
take place.
7

The majority's characterization of the Secretary's theory as being based on unsafe
demolition activities regardless ofwhether the structure was deteriorated is erroneous for at least
three reasons. First, although Sedgman's citation does contain language that is different from the
language used in JWR's citation, Sedgman's citation still emphasizes the allegation that
Sedgman is liable because of the deteriorated condition of the steel supports. Slip op. at 6-7
(quoting Citation No. 7676881). Second, in her brief, the Secretary never relies upon, or even
mentions, the different language in Sedgman's citation. Third, as discussed above (slip op. at
26), the language of the Secretary's brief makes clear that the Secretary's theory ofSedgman's
liability is based on the deteriorated condition of the steel supports. Sec'y Br. at 13, 14 n.6.
28 FMSHR.C 348

construction/demolition standards for miners working at surface areas of mines, despite the
requirement that she do so under section 101(a)(8) of the Mine Act, 30 U.S.C. § 81 l(a)(8),8 and
she has never promulgated training standards for mine construction workers, even though section
115(d) of the Act, 30 U.S.C. § 825(d), expressly mandates that the Secretary promulgate such
training standards. The absence of any applicable MSHA standards goveriring the demolition of
structures at surface areas of mines was underlined when the Secretary sought to introduce
evidence at trial regarding the requirements of construction standards of the Department of
Labor's Occupational Safety and Health Administration ("OSHA") specifically addressing
demolition activities. Tr. 468-71 . The judge denied the request because he concluded that
OSHA's standards were not relevant to a proceeding under the Mine Act.9 Tr. 479-80. In any
event, as shown below, the majority's strained reading of the standard is contradicted by
MSHA's official reading of its own standards and Commission case law regarding how those
:
standards must be interpreted.
Commission case law makes it clear that when broad regulatory language such as that
contained in section 77.290 - "[a]ll ... structures ... shall be maintained in good repair" - is
to be applied in a particillar case, the Commission utilizes the ·~asonably prudent person,, test to
determine whether the operator had adequate notice of the meaning of the standard and its
application under the circumstances of the case involved E.g., U.S. Steel Mining Co., 21
FMSHRC 435, 439 (May 2005); Alabama By-Products Corp., 4 FMSHR.C 2128, 2129 (Dec.
1982). However, in this case, the majority does not apply that test but instead simply declares
how the standard should be read. The majority states that, despite Sedgman's contentions that
demolition of a structure is the aritithesis ofmaintaining it in good repair, the words of the
standard "can also be understood to support the continued application of the standard during the
demolition process." Slip op. at 9. 10

8

My colleagues assert that the Secretary' s failure to have promulgated
construction/demolition standards is irrelevant because the legislative history of section 101(a)(8)
indicates that "construction operators" must comply with ~'the requirements of the Act
generally." Slip op. at 8 n.9. I do not disagree that Sedgman had to comply with ''the
requirements of the Act generally," as any independent contractor would be required to do so.
Strictly speaking, however, section 77 .200 is not a requirement of the Act. Instead, it is a safety
standard promulgated by the Secretary, which, in my view, she is stretching beyond reason in
order to cover gaps left by her failure to promulgate construction/demolition rules.
9

In 1979, MSHA preliminarily proposed adopting the OSHA construction standards as
MSHA standards (44 Fed. Reg. 52,258 (Sept. 7, 1979)), but that initiative was later abandoned.
47 Fed. Reg. 48,548-(0ct. 28, 1982).
10

The majority asserts that the "reasonably prudent person" test provides Sedgman no
defense here. Slip op. at 9. I disagree. The question presented in this case is whether a
reasonably prudent person would have understood that section 77.200 applied to'demolition
activities at all, not whether a reasonably prudent person would ha-ye chosen the_illogical, unsafe
28 FMSHRC 349

I conclude that, under the "reasonably prudent person" test, Sedgman did not have
adequate notice that section 77.200 applied to the demolition of the landing. Under the test,
which is applied from the perspective of an objective observer familiar with the mining industry,
the primary question is whether a ''reasonably prudent person ... would recognize a hazard
warranting corrective action within the purview ofthe applicable regulation." Alabama ByProducts, 4 FMSHRC at 2129. Among the factors to be considered would be any relevant
"MSHA announcements or policy memoranda ... that were ... publicly available or brought to
the attention of the operator." U.S. Steel, 27 FMSHRC at 442. ·Application of the test in this
case shows that a "reasonably prudent person" would have concluded that section 77.200 does
not apply to structures that are being demolished.
First, the words of the standard are silent with regard to deinolition activitie~. Although
the majority emphasizes that "[a]11 structures" are to be maintained in good repair, this does not
fully answer the question of whether the standard applies to demolition activities (as opposed to,
say, the repair or replacement of deteriorated steel). 11 The key point is that maintaining a
structure in good repair is antithetical to demolishing it. Try as they may, the majority cannot
persuasively argue that a "reasonably prudent person" would understand that a structure must
simultaneously be maintained in good repair and demolished. 12 The majority also urges that
demolition must be carried out in a way that prevents accidents. That position is laudable, but
the standard does not say that. The majority is really treating section 77.200 as a kind of "general
duty clause" to encompass activities well beyond maintenance and repair. Ho"'.'ever, the Mine ·
Act, unlike the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (2000), contains no
such clause, and section 77.200 is not a general duty clause in any event.
Second, beyond the regulatory language, which does not specifically address demolitioil,
a "reasonably prudent person" reviewing MSHA' s relevant policy pronouncements would
conclude that demolition activities are not covered under the "maiiltained in good repair"
language of section 77.200. Although section 77.200 was promulgated in 1971, MSHA has
apparently never issued a single policy document or other official statement indicating that

method used.
11

It is implicit in the standard that the "maintained in good repair" requirement would ·
apply only to structures that are not being demolished, which i-s the opposite of being maintained
in good repair. Similarly, if a standard provided that "all structures shall be demolished in a way
that will prevent accidents and injuries to employees," it would be understood that the
requirement would not apply literally to all structures, but only to those that are being
·
demolished.
12

See also The Industrial Co. of Wyoming, 12 FMSHRC 2463, 2478-79 (Nov. 1990)
(ALJ) Gudge ruled that section 77.200 did not provide fair wamiilg that it would apply to the
construction of buildings because buildings under construction cannot be "maintained" and
"repaired").
28 FMSHRC 350

demolition activities are covered by section 77.200. Given MSHA's silence for more than 30
years, a "reasonably prudent person" would not know that demolition activities are meant to be
covered by the standard.
Third, MSHA, through its policy manual, has in fact stated that there is a clear distinction
between maintenance or repair activities, on the one hand, and construction or demolition
activities, on the other hand. UI MSHA, U.S. Dep' t of Labor, Program Policy Manual, Part 48,
at 36-37 (2003) ("PPM''). fu discussing training requirements for employees of independent
contractors working at surface areas ofmines, MSHA stated that "construction work" includes
"demolition." Id. at 36. Furthermore, MSHA stated that '1naintenance or repair work" includes
''upkeep or alteration." Id. at 37. The major significance of this dichotomy is that an employee
of an independent contractor engaged in construction or demolition work at a surface area is not
required to receive training under 30 C.F .R. Part 48, while a similar worker engaged iii
maintenance or repair work must receive training under 30 C.F.R. Part 48. PPM at 37. Thtls,
MSHA's policy manual recognizes that maintenance or repair activities are mutually exclusive
from construction or demolition activities: a worker at a surfaCe area can be engaged in either
construction/demolition activities or maintenance/repair activities, but not both simultaneously.
Because ofthis critical distinction, the "reasonably prudent p erson, " upon reviewing MSHA 's
policy manual, would affirmatively conclude that section 77.200, which addresses maintenance
and repair, does not apply to demolition activities.
Finally, in Black Diamond Construction; Inc., 21FMSHRC1188 (Nov. 1999), the
Commission recognized the distinction between maintenance or repair work and demolition
work. It upheld an award under the Equal Access to Justice Act, 5 U.S.C. § 504, against the
Secretary because MSHA ignored that distiiiction when it issued a citation to an indeperident
contractor. MSHA had issued the citation to an independent contractor because one of its
employees who was engaged in demolition activities had not received trairiing required for
workers engaged in mairltenance and repair activities. The Commission discussed the definitions
of"maintenance or repair" and "demolition" set forth in MSHA's PPM and emphasized the clear
distinction between the two types of activities. 21 FMSHRC at 1195-96. fu concluding that the
Secretary's position was not substantially justified, the Commission ruled that MSHA had
ignored the language of the PPM in issuing the citation and stated that "giving undue emphasis to
the hazards contractor employees are exposed to would render meaningless the exceptions to
Mine Act coverage." Id. at 1197. The Commission expressly rejected the Secretary's argument
that the PPM should be construed broadly because of the nature of the hazards to which a
contractor' s employee would be exposed. Id. In short, the Commission not only rejected the
Secretary•s attempt to disregard the distinction between "maintenance or repair" and
"demolition," it ruled that such a position was not even substantially justified, i.e., ''the
Secretary's position was not reasonable in law or fact." Id. at 1198. Furi:her, the Commission's
decision makes clear tha~ regardless of the nature of the hazards to which contractors' employees

28 FMSHRC 351

may be exposed, the language of MSHA•s standards cannot be ignored or unduly stretched to
apply to situations where there was originally no intent to do so. 13
In summary, the majority's effort in this case to read the maintenance and repair language
in section 77 .200 as applying to demolition activities cannot be squared with the meaning of the
words, the Secretary's·own policy detenninations, or the CoIIlIJ?.ission's decision in Black
Diamond. For all these reasons, I dissent from this portion of the majority's decision and would
reverse the judge's ruling that Seclgman violated section 77.200.14

13

My colleagues attempt to dismiss the significance ofMSHA's PPM"ond the Black
Diamond decision by stating that MSHA has explicitly treated maintenance or repair as being
distinct from demolition or construction. Slip op. at 9-~0 n.10. The majority's footnote actually
makes my point. A reasonably prudent person, when faced with the question of whether a
standard that requires structures to be maintained in good repair applies to demolition (which is
antithetical to maintaining a structure in good repair), ~ould determine, after reviewing MSHA's·
standards and PPM, that MSHA has consistently drawn a bright line between maintenance or
repair and demolition or construction because they are mutually exclusive activities.
14

Notwithstanding my conclusion that Sedgman did not violate section 77.200, I concur
with my colleagues' reasoning in vacating the judge's actions relating to the civil penalty for that
violation.
·
28 FMSHRC 352

Distribution

R Hemy Moore, Esq.
Jackson Kelly, PLLC
Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of LabOr
1100 Wilson Blvd., 22nc1 Floor
Arlington, VA 22209
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 353

ADMINISTRATIVE LAW JUDGE DECISIONS

·FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue. N.W., Suite 9500
Washington, D.C. 20001

May 18, 2006
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
V.

FREEMAN ROCK, INC.,
Respondent

CIVILPENALTYPROCEEDINGS
Docket No. WEST 2Q06-219-M
A. C. No. 35-03600-76169
Freeman Brookings Wash Plant
Docket No. WEST 2006-220-M
A~ C. No. 35-01041-76016
Freeman Portable Crusher

DECISION
Appearances:

Before:

John D. Pereza, Conference and Litigation Representative, U.S. Deparbnent
of Labor, Vacaville, California, on behalf of the Petitioner;
Catherine Yocum and Michelle McCormick, Freeman Rock, Inc., Brookings,
otegon, on behalf of the Respondent.
Judge Melick

These cases are before me upon petitions for civil penalties filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the "Act," charging Freeman Rock Inc. (Freeman Rock) with three violations of mandatory
standards and proposing·civil penalties for the violations. The general issue before me is whether
Freeman Rock violated the cited standards and, if so, what is the appropriate civil penalty to be
assessed in accordance with Section 1 lO(i) of the Act. Additional specific issues are addressed as
noted.
Docket No. WEST 2006-219-M

Citation No. 6383282
Citation No. 6383282 alleges a violation of the standard at 30 C.F .R. § 56.14107 (a) and
charges as follows:
A guard was not provided on the V-belt drive unit on the air-compressor located in the shop
area. Guards shall be provided and maintained to prevent persons from contacting the
moving machine parts. The unit was about five feet above ground level, about a 2 foot by
3 foot opening and turns at a high rate ofspeed. Employees are not required to be in the area
when the unit is i-unning. A person could be seriously injured if they where [sic] to get
entangled in the V-belt drive unit.
28 FMSHRC 354

The cited standard, 30 C.F.R. § 56.14107 (a)providesthat"[m]ovingmachineparts shall be
guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and take up
pulleys, fly wheels, couplings, shafts, fan blades; and similar moving parts that can cause injury."
David Small, an inspector for the Department of Labor's, Mine Safety and Health
Administration (MSHA), has five and a half years experience as a mine inspector and 30 years
experience in the mining industry. He inspected the Freeman Brookings Wash Plant in November
2005 accompanied by foreman Greg Dexter. He observed that the cited compressor had no guard
on the V-belt drive unit. Small observed that the moving parts rotate "fast". He further observed
that the building in which the compressor was housed was not locked nor was there a warning sign
on the door. He further observed that the compressor would start automatically and noted that the
compressor must be periodically drained by an employee. The drain was located about five feet
lower on the tank and not near the V-belt drive (See Government Exhibit 219-4). Small also noted
that the V-belt drive unit was located behind the compressor only two feet from the wall but the drive
motor could nevertheless be reached by an individual who could get a finger caught therein. He
found that it was unl.ikely for someone to be in the area and also unlikely for anyone to get their
finger caught in the V-belt drive. He therefore found the violation to be of low gravity.
According to the operator' s receptionist, bookkeeper and safety secretary, Michelle
McCormick, the cited compressor was located in a small room and that the State ofOregon "OSHA"
inspector had not commented on nor cited the same compressor while it was located in a more
exposed area.
Considering the above evidence, I conclude that, while there was indeed a violation of the
cited standard, it was of low gravity. Based on the somewhat remote and protected location of the
cited V-belt drive unit and the fact that a state safety inspector had not cited or commented on the
V-belt drive unit when it was located in a more exposed area, I find the operator chargeable with but
little negligence.
Docket No. WEST 2006-220-M
Citation No. 6383251

Citation No. 6383251 alleges a violation at 30 C.F.R. § 56.14100 (b) and charges as follows:
The front lights where [sic] not maintained in a functional condition on the D8H cat dozer,
company # 4608. Defects affecting safety shall be repaired in a timely manner as not to
create a hazard to the operator. This piece of mobile equipment operates on mine property
during daylight hours. The equipment is exposed to outside conditions such as a [sic] rain
and fog. The dozer works in the area ofthe highwall and there was no foot traffic or smaller
vehicles in the area. A person could be seriously injured if struck by the dozer. The
condition had not been reported.

28 FMSHRC 355

The cited standard, 30 C.F.R. § 56.14100 (b), provides that "[d)efects 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."
Inspector Small testified, and it is undisputed, that the cited bulldozer in fact did not have
functioning :front lights. Small observed that the wiring and brackets for the lights were still in place
and only needed light bulbs to become functional. According to Inspector Small, the bulldozer
operates in fog and rain and returns where other persons work to the pit floor after the shift. Small
testified that the foreman told him that the light bulbs had been removed because they did not think
they needed them. Small reiterated that the bulldozer operated in dusty conditions and in foggy
weather and noted that the mine was located only four to five miles from the ocean where it regularly
experiences both light and heavy fog. He noted that the bulldozer also operated in the rain and he
recalled that on the date of the inspection, October 27, 2005, the weather was overcast with rain.
Small testified that it was important during fog or rain to tum the headlights on so that others
could see the bulldozer and for the bulldozer operator himself to see how close he is to the edge of
the highwall. Small concluded that injuries were unlikely but that fatal injuries.were possible if th~
bulldozer went over the highwall. He found the operator chargeable with moderate negligence in
light of evidence that th~ company had been previously cited for failing to maintain headlights on
a scraper at the mine oh April 15, 2003. Under the circumstances, i conclude that indeed the
violation was committed as alleged but that it was of low gravity and the result of moderate
negligence. In connection with these findings I have also considered the testimony of Ms.
McCormick that when the bulldozer was acquired some one and a half years before the condition
herein was cited, it was not furnished with light bulbs although it did come equipped with the wiring
and :frame for the lights. In reaching the above findings, I have also considered the testimony ofMs.
McCormick that the company stops operations when the weather is too inclement.

Citation No. 6383253
Citation No. 6383253 alleges a violation of the standard at 30 C.F.R. § 56.9300 (a) and
charges as follows:

A berm or a gate with delineators was not provided on the access road leading to the upper
benches of the high.wall. A berm or other means such as a guard rail, [sic] gate with
delineators shall be provided on the edge ofroadways where the road is in-frequently [sic]
traveled by small vehicles or service vehicles. The area is about 200 feet long, about three
foot to 15 foot drop off's [sic] along the edges, about a 10 degree grade and exposed to
outside conditions. The area is normally traveled by the dozer but small vehicles access the
area in-frequently [sic]. A person could be seriously injured if a vehicle where to overturn.
The cited standard, 30 C.F.R. § 56.9300, provides that "[b]erms or guardrails shall be
provided and maintained, on the banks of roadways where a drop-off exists of sufficient grade or
depth to cause a vehicle to overturn or endanger persons in equipment."

28 FMSHRC 356

Inspector Small testified that, as he drove down the quarry access road, he observed that there
were no berms or guardrails and that drop-offs from three to fifteen feet existed at various places
along the road. He also observed that, in certain places, the road had a 10% grade. Small also
observed that a pickup truck was being driven by operations manager Jake Jacobson on the lower
part ofthe road. According to Small, Jacobson acknowledged that he was aware that there were no
berms and admitted that he frequently used the road in his pickup truck. According to Small, the
lack of berms or guardrails created a hazard of a vehicle overturning. He noted, however, that
injuries were unlikely due to the infrequency of vehicles using the road. He also noted however that
injuries, if sustained, could be fatal. According to the inspector, the road was 18 feet to 40 feet wide
and the shoulders were muddy.
·
Ms. McCormick testified that the road was only 17 feet wide and no public access wa8

permitted. Indeed she testified that the only person permitted to use the road was Jac0bson and that
a four-wheel-drive vehicle was needed to operate on the road.
Within the above framework of evidence, I conclude that indeed the violation is proven as
charged. I accept the inspector's testimony, supported by the testimony of Ms. McCormick, that
access to the road was limited and that injuries were unlikely. I therefore find that the violation was
of low gravity. I accept the inspector's findings that the violation was the result of moderate
negligence in light ofoperations manager Jacobson;s admission that he was aware that the road did
not have berms and in light of the obvious need for berms or guardrails along the road.
Civil Penalties
Under Section 110 (i) ofthe Act, the Commission and its judges must consider the following
factors in accessing a civil penalty: the history of violations, the negligence of the operator in
committing the violation, the size ofthe operator, the gravity of the violation, whether the violation
was abated in good faith and whether the penalties would affect the operator's ability to continue in
business. The record shows that the operator is small in size with a minor history of violations at
only one of the facilities cited. There is no dispute that the violations were abated in a timely and
good faith manner and no evidence has been presented as to the effect the penalties would have on
the operator' s ability to continue in business. The negligence and gravity findings have previously
been discussed in the instant decision. Under the circumstances, the Secretary's proposed penalties
of $60 for each of the violations are appropriate.

28 FMSHRC 357

ORDER
Citations No. 6383282, 6383251 and 6383253 are hereby affirmed and Freeman Rock Inc.
is directed to pay civil penalties of$180.00 ($60.00 for each violation) within 40 days ofthe date of

~.~sioa

u~

. ..

bary

~

.

Administrative Law Judge .
(202) 434-9977

Distribution: (Certified Mail)
John D. Pereza, Conference & Litigation Rep.; U.S. Department of Labor, MSHA, 2060 Peabody
Road, Suite 610, Vacaville, CA 95687
Ted Freeman, Jr., President, Freeman Rock, Inc., P.O. Box 1218, Brookings, OR 97415

/lh

28 FMSHR.C 358

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

June 23, 2006
CONTEST PROCEEDINGS

SUBURBAN SAND & GRAVEL,
Contestant

Docket No. WEST 2004-464-RM
Citation No. 6311794; 07/15/2004
Docket No. WEST 2004-465-RM
Citation No. 6311795; 07/15/2004

v.

Docket No. WEST 2004-466-RM
Citation No. 6311796; 07/15/2004
Docket No. WEST 2004-467-RM
OrderNo. 6311797; 07/15/2004

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

Suburban Sand & Gravel
Mine ID 05-04428

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2005-142-M
A.C. No. 05-04428-44707

v.
SUBURBAN SAND & GRAVEL,
Respondent

Suburban Sand & Gravel

SECRETARY OF LABOR
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2005-223-M
A.C. No. 05-04428-49161A

V.

RUSSELL BARTZ, employed by
SUBURBAN SAND & GRAVEL
Respondent

Suburban Sand & Gravel

28 FMSHRC 359

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR
MINE SAFETY AND HEAL1H
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 2005-224-M
A.C. No. 05-0442849160A

v.
Suburban Sand & Gravel

ROBERT K . HORN, employed by
SUBURBAN SAND & GRAVEL
Respondent

DECISION
Appearances:

Edward Falkowski, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, for the Secretary of Labor;
.
James J. Gonzales, Esq., Holland & Hart, Denver, Colorado, for
Suburban Sand & Gravel, Russell Bartz, and Robert K. Hom.

Before:

Judge Manning

These cases are before me on four notices of contest brought by Suburban Sand and
Gravel ("Suburban") and three petitions for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration (''MSHA''), against Suburban,
Russell Bartz, and Robert K. Hom pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Acf'). The cases involve citations
and orders issued by MSHA following its investigation of an accident at Suburban' s pit. An
evidentiary hearing was held in the Commission's courtroom in Denver, Col~rado. The parties
introduced testimony and documentary evidence and filed post-hearing briefs.

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINDINGS OF FACT
At the time of the accident, Suburban operated a sand and gravel pit (the ''pit'') in Adams
County, Colorado. The pit includes an area where material is excavated as well as crushing,
screening, and material storage areas. Suburban became the owner of the pit in January 2004.
On July 15, 2004, Jose Adame, a laborer with Suburban, was at the top of a sand stacker
conveyor ("sand conveyor'' or "conveyor'') to grease the bearings on the head pulley when
another employee started the conveyor. As the belt moved, Mr. Adame's foot became caught in
the metal scraper that removes any sand that has stuck to the belt. He received serious injuries to
his ankle and foot before the belt was turned off. MSHA Inspector Brad Allen, who was
scheduled to conduct a regular inspection of the mine that day, arrived shortly after the accident
and conducted MSHA' s accident investigation. Inspector Allen issued a number of citations and

28 FMSHRC 360

orders following his investigation. The parties settled all of these items except the four which are
the subject of this litigation.
Adame testified through a Spanish/English interpreter that his primary job at the time of
the accident was to remove mud, dirt, and debris from the sand conveyor. (Tr. 17). He also
greased the bearings on the sand conveyor and other conveyors at the pit. Grease fittings were
located at the head pulley and tail pulley. Adame has worked at the pit since January 2004, but
he also worked there for a few months in 2003. In 2003, the pit "was owned by Aggregates, Inc.,
which was not affiliated with Suburban. Many of the supervisors and hourly employees with
Aggregates, Inc., started working for Suburban when it bought the'pit. Adame helped grease
bearings in conveyors in 2003. The bearings were greased about every other week in 2003. (Tr.
23). Adame testified that in 2003 he walked up the belts at the pit to grease the h~ pulley
because that was how everyone else performed that task. (Tr. 24-25). Adame started greasing
the head pulleys in this manner after ''watching everyone else do it." (Tr. 25). Handrails were
not provided on the conveyor and Adame did not use fall protection once he arrived at the top. In
addition, he did not lock out the electrical switches to prevent anyone from starting the conveyer.
Adame testified that he never observed anyone else using fall protection or locking out the circuit
when greasing head pulleys in 2003. (Tr. 26).
Adame testified that when he returned to the pit in 2004, after it was purchased by
Suburban, he greased the·head pulley on the sand conveyor in the same manner ''because
everything was the same as it had been before." Id. He watched how others greased the pulleys
and he did the same thing. (Tr. 50). He never walked up the pile of sand under the conveyor to
reach the bearings on the head pulley. (Tr. 32). He could not recall anyone locking out the
conveyor or using fall protection when greasing high conveyors. Adame testified that his
supervisor at the pit in 2004 was Robert ''Kenny'' Hom, who had worked at the pit with Adame
in 2003. In 2004, the bearings were greased about once a month. (Tr. 27). Hom spent most of
his time loading trucks with product from the stockpiles under the stacker conveyors. (Tr. 29).
Adame would make sure the sand conveyor was turned off, but he did not take any steps to lock
out the conveyor or the generator that supplies power to the pit. Adame usually did his greasing
on Saturdays, when the pit was not operating, or at the end of the shift after the generator was
turned off. (Tr. 30, 51, 61). Adame testified that neither Hom nor Russell Bartz, the aggregate
division manager for Suburban, told him that he should walk up the belt to grease.the head
pulley. (Tr. 47). Adame never discussed the procedure for greasing the pulleys with either of
them. (Tr. 54). ·
When Adame arrived at the mine on July 15, 2004, Vincent Wallett told him to grease the
sand conveyor. (Tr. 33-34). Wallett was not a management employee. Wallett operated the
conveyors. Between 6:00 a.m. and 7:00 a.m., Adame walked up the belt to grease the bearings at
the head pulley. Wallett was shoveling material from around the tail pulley on the sand conveyor
when Adame walked up the belt. (Tr. 55-56). As Adame was greasing the bearings at the head
pulley, the conveyor started. He subsequently learned that it was Wallett who turned on the sand
conveyor. There was no warning or alarm to signal that the belt was going to start. (Tr. 42).

28 FMSHRC 361

Adame thought he was going to fall off the end of the conveyor, but his foot got caught in the
metal bar that scrapes sand off the conveyor. He screamed for help. Someone turned off the belt
and Wallett ran up the conveyor to lift the sand scraper with a metal bar to free Adame's foot.
Mr. Hom was loading trucks from a materials pile when the accident occurred. (Tr. 39). An
ambulance took Adame to the hospital. Adam.e's ankle was pulled out of place and he had to
undergo surgery. He was off work as a result of the injury for about six months. (Tr. 41 ).
Adame knew that the generator which supplied power for the pit had been turned on that
morning. (Tr. 56). He testified that normally the sand conveyor was started from inside the
control trailer at the pit. (Tr. 57-58). When that occms, an alarm is sounded before the belt
actually starts moving to warn everyone. In this instance, Wallett started the belt at a switch on
the structure of the sand.conveyor and no alarm sounded. None of the other belts had.been
turned on at the time of the accident. (Tr. 62). Adame assumed that the belt would not be started
because Wallett had told him to grease the bearings on the conveyor and Adame walked right
past Wallett as he stepped onto the belt. (Tr. 58).
The configuration of the sand conveyor is shown in photographs taken by MSHA
Inspector Brad Allen. (Ex. P-1). The top of the sand conveyor was about 25 feet above the
ground and the pile of sand under the conveyor was about five or six feet below the top of the
conveyor. (Tr. 311, 314). The belt itselfwas 80 feet long and about 30 inches wide. There are
two sets of controls for the sand conveyor: one set is in the control trailer and the other set is
attached to the frame of the conveyor. (Tr. 42; Ex. P-1, pp. 7 - 9). Although warning alarm can
be activated from the trailer, there is no way to set off this alarm from the switch on the frame of
the conveyor.

a

Steve Ludwig was a truck driver for Suburban Ready-Mix, a related company. He hauls
sand and gravel from the pit to various cement plants. (Tr. 78). He was at the pit at the time of
the subject accident. Mr. Hom is the individual who usually loads material into Ludwig's truck.
On the morning of July 15, 2004, Ludwig drove into the pit to pick up a load of sand. He saw
Adame walking up the belt on the sand conveyor. As Hom was loading his truck, Ludwig
noticed that the sand conveyor started moving. He looked out his window and saw Adame with
his foot caught in the sand scraper. (Tr. 82). He jumped out of his truck, yelled at Hom, and
pointed to the top of the conveyor. When Hom saw what was happening, he yelled at Wallett to
shut down the conveyor. (Tr. 82). Nothing in Hom' s behavior at that time indicated to Ludwig
that he knew that Adame was at the top of the conveyor. (Tr. 99). He helped in the recovery
effort by getting a pry-bar and handing it to Wallett. (Tr. 104; Ex. R-1).
Inspector Brad A.hen testified that he conducted the accident investigation for MSHA.
Allen testified that, soon after he arrived at the pit, Mr. Hom told him it was common for a miner
to walk up a conveyor belt to grease the head pulley. (Tr. t 18-19). Inspector Allen testified that
Russell Bartz told him that miners eitherwalk up the stockpile or up the conveyor belt to reach
the head pulley. (Tr. 120-121). Bartz stated that employees only walk up the belt if the stockpile
is not high enough to reach the area of the head pulley.

28 FMSHRC 362

Inspector Allen interviewed Vincent Wallett at the motel where he was living. (Tr. 125).
Wallett told Allen that he turned on the conveyor because he needed to move the belt to remove
sand that was packed around the roller of the tail pulley. (Tr. 127; Ex. P-2). Wallett apparently
believed that Adame had gone to get another grease gun. Wallett stated that he "didn't see him
return to go up [the] belt to grease [the] top and wasn't told." (Ex. P-2). Wallett told Inspector
Allen that the head pulley was about 12 to 15 feet above the sand pile. (Tr. 128). Allen also
testified that Wallett told him that employees commonly walked up the belt to grease the head
pulleys. Wallett told both the company and Inspector Allen that an alarm did not sound when he
started the sand conveyor. (Tr. 129; Ex. P-2).
Inspector Allen testified that Russell Bartz filed a mine accident report with MSHA. (Tr.
129; Ex. P-3). Bartz's office is in the scale house near the entrance of the mine. Allen testified
that one can see most of the crushing, screening, and conveying portions of the plant from the
window in his office. (Tr. 131).
Following his investigation of the accident, Inspector Allen issued a number of citations
and orders. Three citations and one order of withdrawal are at issue in these cases.

A.

Citation No. 6311794

Inspector Allen issued Citation No. 6311794 under section 104(a) of the Mine Act
alleging a violation of section 56.14105 as follows:
Maintenance of 80 feet long Kolberg sand stacker conveyor was
being performed with the power on and ~e machinery was not
blocked against hazardous motion. A serious accident occurred
when the conveyor was started while a miner was performing
maintenance and became entangled between the headroller and the
belt scraper mechanism. The miner received crushing injuries to
his left lower leg.
Inspector Allen determined that an injury had occurred and that the injury could reasonably be
expected to result in lost workdays or restricted duty. He determined thatthe violation was of a
significant and substantial nature ("S&S'') and that Suburban•s negligence was moderate. The
safety standard provides, in part, that "[r]epairs or maintenance shall be performed only after the
power is off, and the machinery or equipment [is] blocked against hazardous motion." The
Secretary proposes a penalty of $2,500.00 for this citation.

On March 25, 2005, I granted the Secretary's motion to allege, in the alternative, that
Suburban violated 30 C.F.R. § 56.12016. That section provides, iil part:
·Electrically powered equipment shall be deenergized before
mechanical work is done on such equipment. Power switches shall

28 FMSHRC 363

be locked out or other measures taken which shall prevent the
equipment from being energized without the knowledge of the
individuals working on it.
Inspector Allen testified that he issued the citation because the conveyor was not blocked
against motion before Mr. Adame attempted to perform maintenance on the head pulley. {Tr.
134). He stated that the.requirements of section 56.14105 would have ~een met if the conveyor
or the generator had been locked out. (Tr. 216). He determined that the violation was S&S
because it was highly ~ely that an injury could occur and that such an injury would be quite
serious. (Tr. 137). A miner could become entangled in the sand scraper bar, as Adame did. He
also believed that a miner could fall off the conveyer onto the ground below.
Suburban contends that undisputed evidence shows that the mine had implemented a
lockout-tagout program and provided employees with locks and tags to use. Both Wallett and
Adame were trained on these lockouMagout procedures. Inspector Allen admitted that Adame
could have locked out the conveyor before he climbed up the belt. (Tr. 187). The evidence also
establishes that Mr. Adame usually greased pulleys on Saturday mornings when the plant was not
operating or at the end of the day after the plant had been shut down. Thus, the Secretary failed
to establish that it was a common practice for Suburban to grease the pulleys in a manner that
violated either safety standard. Mr. Adame simply assumed that the conveyor would not be
started because Wallett was working right there at the tail pulley on the base of the conveyor.
I find that the Secretary did not establish a violation of section 56.12016~ Referencing
Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1192-93 (9th Cir. 1982); the Commission held
that the Secretary's lockbut-tagout standards are directed to the hazard of electric shock. Island
Creek Coal Co., 22 FMSHRC 823, 826-28, 830-32 (July 2000). 1 As drafted by the Secretary, the
lockout standards were put in place to prevent the accidental electrocution of miners while
mechanical work was being performed on electrically powered equipment. Both the Ninth
Circuit and the Commission held that the Secretary's lockout standards simply do not address the
hazards arising from the accidental movement of electrically powered equipment while
mechanical work is being performed. See also Arkhola Sand & Gravel, Inc., 17 FMSHRC 593,
596-98 (April 1995) (AU). In this instance, there was no risk that anyone would be exposed to
an electrical hazard whiie·greasing the head pulley on the conveyor.
I find that the Secretary established a violation of section 56.14105. The safety standard
requires that the machinery or equipment undergoing maintenance or repair must be (1) de-

1

In Island Creek, the Secretary alleged that the mine operator violated section 75.1725,
which is substantially similar to section 56.14105, because conveyor belts were not locked out or
tagged out. The Secretary argued that the term "blocked against. motion" means locked out and
tagged out. Two of the Commissioners rejected this interpretation of the standard because it is
inconsistent with its language and also because the lockout-tagout requirements are directed to
electrical hazards. The remaining two Commissioners did not agree with this analysis.
28 FMSHRC 364

energized and (2) blocked against motion. Greasing a head pulley qualifies as maintenance. The
first question is whether the equipment was deenergized. Mr. Wallett used the control box
attached to the conveyor structure to turn on the belt. Power enters the control box, travels
through a breaker and then to the start button. The Secretary argues that the conveyor was not
"off' because the evidence shows that Wallett simply pushed the start button to activate the belt.
Because the start button was "hot," power to the conveyqr was not off. The breaker at the control
box would have to be in the off position in order to deenergize the conveyor. Since the breaker
was in an on position, the equipment was not off. Although I tend to agree with the Secretary's
interpretation, there is no evidence to establish that the breaker was in the on position before
Wallett went to tum on the conveyor. It is possible that the circuit breaker was off and Wallett
turned it on immediately before he pushed the start button. There is no credible evidence on this
issue.
It is clear, however, that the belt was not blocked against motion. Suburban did not
present any evidence to rebut the Secretary's evidence that the belt was not blocked against
motion. As a practical matter, the most common means of blocking a belt against motion is to
lock out the power source. A belt that is 80 feet long is not going to move on its own because
someone is standing or walking on it and it will not move as a result of the maintenance that was
being performed. The Secretary is not contending that the only means to block the belt against
motion is to lock out the power source. Locking out and tagging out the circuit was simply a
method that Inspector Allen would have accepted to block the belt against motion to comply with
section 56.14105. (Compare, Island Creek, 22 FMSHRC at 833). Suburban did not argue that
MSHA does not have the authority to require that conveyors be locked out and tagged out under
section 56.14105. The fact that Suburban had a lockout-tagout policy and that locks were
available for use does not eliminate the violation but is relevant to the negligence criterion.

I also find that the violation was serious and S&S. A violation is classified as S&S "if
based upon the 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." National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984), the Commission set out-a four-part test for analyzing S&S issues. Evaluation of
the criteria is made assuming "continued normal mining operations." U. S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984). The question of whether a partiCulcir violation is S&S must
be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498
(April 1988). The Secretary must establish: (1) the underlying violation of the safety standard;
(2) a discrete safety hazard, a measure of danger to safety, contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not
r~uired to show that it is more probable than not that an injury will result from the violation.
U.S. Steel Mining Co., 18 FMSHRC 862, 865(June1996).
A serious accident occurred in this instance which would have been prevented had
Suburban complied with the requirements of 56.14105. I find that there was a reasonable

28 FMSHRC 365

likelihood that the hazard contributed to by the violation would result in an injury of a reasonably
serious nature.
I find that Suburban' s negligence was quite low. Wallett was an hourly employee.
Although he occasionally asked Adame to perform tasks, I find that he was not Suburban's agent
He did not supervise any employees, he was not a leadman, and he did not direct Adame's work
schedule. Adame and Wallett worked together and would share tasks. In this case, Wallett asked
Adame to grease the pulleys while he cleaned up the area around the tail pulley. In may well be
that, because his principal language is Spanish, Adame granted Wallett a great deal of deference.
Nevertheless, Wallett was not Adame's supervisor. I find that the negligence of Wallett should
not be attributed to SubUrban.
In addition, Wallett' s decision to start the conveyor was totally unexpected. SUburban
could not have anticipated that Wallett would start the conveyor that morning. The plant was not
running at the time and it was Wallett who started the generator. Apparently, he started the
generator because he believed that power was needed in the mechanical shop. The undisputed
evidence reveals that the work being done in the shop did not require electricity and that the shop
receives its power from the local electric utility, not from the generator. In addition, I find that it
was highly unusual for Adame or anyone e~e to grease the bearings on the head pulley at the
start of a shift while the generator was on. Although Adame testified that he never locked out the
generator or the conveyor breaker when greasing the head pulley, it is important to note that he
always greased while the plant was shut down. There is no evidence as to whether tlie generator.
was locked out by someone other than Adame when miners greased pulleys on conveyors, so I
cannot enter a finding that Suburban had knowledge that conveyors were not blocked against
motion while greasing was performed in this manner on other'occasions. For these reasons,
Suburban' s negligence was very low with respect to this violation. A penalty of$250.00 is
appropriate.

B.

Citation No. 6311795

Inspector Allen issued Citation No. 6311795 under section 104(a) of the Mine Act
alleging a violation of section 56.1420l(b) because the "80 feet long Kolberg sand stacker
conveyor was started without providing a visible or audible warning prior to startup." The
citation also describes the accident as set forth in the previous citation.
Inspector Allen determined that an injury had occurred and that an injury could
reasonably be expected to result in lost workdays or restricted duty. He determined that the
violation was S&S and that Suburban's negligence was moderate. The safety standard, entitled
"Conveyor start-up waniings," provides, in part:
(a) When the entire length of a conveyor is visible from the starting
switch, the conveyor operator shall visually check to make certain
that all persons are in the clear before starting the conveyor.

28 FMSHRC 366

(b) When the entire length of a conveyor is not vistl>le from the
starting switch, a system which provides visible or audible warning
shall be installed and operated to warn persons that the conveyor
will be started. . . .

The Secretary propose8 a penalty of $2,500.00 for this citation.
Allen testified that he issued this citation because there was no visible or audible warning
given before the conveyor started up. (Tr. 139). Ifa warning had been given, it is less likely that
the accident would have occurred. The inspector also testified that someone standing at the start
switch used by Mr. Wallett could not see the top of the entire conveyor. (Tr. 139-40). The start
switch used by Wallet is mounted on the frame of the sand conveyor under the belt Allen
testified that when he stood at the start switch he could not see the top of the belt on the sand
conveyor. (Tr. 141). The inspector detennined that the violation was S&S because a serious
accident occurred. The standard is designed to warn miners to move away from equipment that
is about to start. (Tr. 142).
Suburban maintains that it is undisputed that when the cited conveyor is started from the
control trailer, the audible warning system is activated. It contends that the evidence shows that
it is Suburban's practice and policy to sound this alarm whenever a belt is started. Suburban also
argues that since the entire length of the conveyor is visible from the conveyor control switch that
Wallett used, the citation must be vacated. The Secretary conceded that a mine operator is not
required to use an audible warning when the entire length of the belt is visible from the start
switch.
I find that the Secretary established a violation. It is quite clear that the intent of section
56.14201 is to ensure that a belt is not started if someone is in harm's way. In this instance,
Inspector Allen stood at the control p~el used by Wallett to start the conveyor to determine if he
could see the entire length of the conveyor. Although he could see the framework of the
conveyor and the bottom of the belt for the entire length, he could not see the top of the belt
where Adame had been standing. Bartz admitted that a person standing at the start switch on the
frame of the conveyor "probably .. . couldn't see the very top of the conveyor belt." (Tr. 386). I
find that a person standing at the control panel attached to the frame of the conveyor system
would not be able to see if someone were standing on or crouched at the top of the belt near the
head pulley. Suburban's argument in this regard is simply playing with the semantics of the
safety standard. Clearly, if Wallett were in a position to see the entire length of the belt,
Suburban would have been in violation of subsection (a) of the standard because Wallett did not
visually check to make certain that all persons were in the clear before he started the conveyor.
I find that the Secretary established that the violation was S&S for the same reasons as set
forth with respect to Citation No. 6311794. Suburban's negligence was very low, for the reasons
set forth for the previous citation. The evidence establishes that the policy and practice of
Suburban is for employees to sound the alann from the trailer before starting the conveyor.

28 FMSHRC 367

Wallett' s high degree of negligence in starting the conveyor cannot be attributed to Suburban. A
penalty of$250.00 is appropriate.

C.

Citation No. 6311796

Inspector Allen issued Citation No. 6311796 under section 104(d)(l) of the Mine Act
alleging a violation of section 56.11001 as follows:
There was no means of safe access provided on the elevated 80 feet
long Kolberg sand stacker conveyor. No system was developed or
used such as safety belts with lanyards or any other type of
restraining device or two-sided railing to prevent or stop a fall of
approximately thirty feet below to the hard, compacted sand floor.
Employees enter the area once per week to perform maintenance,
making the chance of an accident reasonably likely. Manager
Russell Bartz stated that grease hoses on the head pulley8 rimning
to the ground were hard to maintain and that it was easier to have
the mfuets go up the conveyors. Manager Russell Bartz engaged in
aggravated conduct constituting more that ordinary negligerice in
that he was aware of, and eondoned, the common practice of
walking up the conveyers to perform maintenance.
Inspector Allen determined that an injury was reasonably likely and that any injury could
reasonably be expected to be fatal. He determined that the violation was S&S, that Suburban's
negligence was high, and that the alleged violation was a result of Sliburban's unwarrantable
failure to comply with the standard. The safety standard provides that ''[s]afe means of access
shall be provided and maintained to all working places." The Secretary proposes a penalty of
$8,300.00 for this citation.
Inspector Allen testified that he issued the citation because Suburban did not provide a
safe means of access to the head pulley on the sand conveyor. (Tr. 142-43). The employees
typically walked up the conveyor belt to reach the head pulley. Because there may be sand on the
belt, there is a risk that a miner may slip and fall while walking up the belt. There are no
handrails along the belt. He determined that ·the violation was S&S because it was reasonably
likely that a miner would slip or trip and fall while walking up the conveyor. Allen believed that
if a miner fell, it was reasonably likely that he would suffer a serious injury. (Tr. 144). The
inspector determined that Suburban's negligence was high and that its conduct was
unwarrantable "due to the fact that manager Russell Bartz was aware of and condoned the unsafe
practice of walking up and down those elevated conveyors at heights up to 30 feet above ground
level." (Tr. 144). He also believed that Mr. Hom was also aware 9fthis pfactlce. Allen
admitted that using a safety belt and lanyard would not be a feasible means of providing safe
access to the head pulley via the belt. (Tr. 154-55). Handrails are the most common means of

28 FMSHRC 368

providing safe access along an elevated belt. Suburban did not have any usable safety belts with
lanyards on the property.
Suburban argues that Adame's decision to walk up the belt was an aberration that was not
condoned by the company. The belt was nof used to access the head pulley. Safety belts with
lanyards could not be used by a miner walking up a conveyor belt because there was no structure
to which to secure the lanyard. In addition, the conveyor was not designed to have handrails
along the side. Suburban maintains that it was company policy and practice for miners to walk
up the pile of sand to reach the head pulley. Consequently, Suburban provided a safe means of
access. In addition, a miner could lower the top of the conveyor. Hom operated a loader and
was the leadman on the crew. He testified that he has worked at the pit for 16 years, first for
Aggregates, Inc., and now for Suburban. He stated that he never saw miners w~g up a belt to
grease a head pulley. A few months before the accident he observed Wallett walking up a belt.
Hom testified that he told Wallett to get down and to never walk up a belt again. (Tr. 287, 32021). Bartz testified that miners were not authorized to walk up the belts of conveyors and that he
did not know that any miners, including Adame, had ever walked up a belt. (Tr. 353-54). He
also testified that he did not know that Hom caught Wallet walking up a belt. The bearings were
sealed so greasing could be delayed without damaging the equipment. (Tr. 332). The top of the
conveyor was not a working place because miners were not allowed up there.
Arturo Lopez was a front-end loader operator for Suburban in 2004. He operated the

loader to fill the hopper with raw material, so he normally worked in the pit rather than in the
area where Adame worked. He assisted in training miners and acted as a translator during the
safety training, as necessary. (Tr. 250-51). Jose Adame is Lopez's cousin. Lopez testified that
miners were not trained or told to walk up conveyors. He said that miners were not supposed to
do that. (Tr. 257). He·further testified that he never observed Adame walking up a conveyor.
After the '!ccident, he asked Adame what he was doing on the conveyor. Adame told him that
Wallett told him to grease the head pulley. (Tr. 252-53). He also testified that greasing is
normally done on Saturdays or after the plant is shut down during weekdays. Lopez stated that it
was not a practice to grease at the beginning of the shift.

I find that the Secretary established a violation of the safety standard. It is not disputed
that Adame walked up the stacker conveyor to reach the head pulley. I find that the top of the
conveyor belt was a working place because Adame traveled there to grease the head pulley. For
the reasons described by Inspector Allen, it was not safe to walk up the conveyor to access the
head pulley because there was a serious slip and fall hazard.
I find that it was a common practice for miners to walk up the belts at the mine to grease
the head pulley. It was highly unlikely that a miner would bring down a stacker conveyor simply

to grease a head pulley. To bring down a conveyor, the miner would first have to move the
structure of the conveyor to the side so it would not be above the sand pile. Next, he would have
to brace the structure with the bucket of a loader and remove pins that hold the structure up.
Finally, he would have to use the hydraulics of the loader to gradually lower the bucket holding
28 FMSHRC 369

the structure until the conveyor was at its lowest position. Although I do not doubt that miners
walked up the sand piles to access the head pulley, the evidence established that they also
frequently walked up the belts, as discussed above. Walking up a sand pile that is 19 to 20 feet
high which is stacked at the angle of repose would not be an easy task. ht addition, the miner
would have to stand near the top of the pile and reach up to grease the bearings.
hlspector Allen testified that on July 15, 2004, both Hom and Bartz told him the miners
sometimes walked up belts to grease head pulleys. (Tr. 118-21, 218-220, 227-28). After the
accident occurred, Robert Hom prepared a report on Suburban's investigation of the accident, as
required by 30 C.F.R. § 50.1 l(b). (Ex. R-2). The report was prepared on July 15-16, 2004. (Tr.
336-38). In the report, Hom states that Suburban took several actions in response to the Adame's
accident. The report states that Suburban (1) ''Terminated Vincent Wallett., " (2) ''Reviewed
lockout tagout procedure," and (3) Re-trained all miners again on lockout tagout procCclures." Id.
The report was drafted before Inspeetor Allen issued the citations and order of withdrawal. (Tr.
318, 337-40). The citations and order were faxed to Bartz on or about July 21, 2004. Inspector
Allen testified that he held a telephone close-out conference with Bartz sometime after the
citations and order had been faxed. During the conference, Bartz adamantly denied that miners
were allowed to walk up belts or that he told Allen that miners did so.2
At the time Hon?. wrote the report, ·he knew that Adame had walked up the. belt to grease
the head pulley. {Tr. 318). Yet Hom did not mention in the report-that Adame walked tip the
belt or that he violated company policy in doing so. If such an action was against company
practice or policy, Hom would have stressed that fact in the report and stated that miners were
retrained on this policy. In the section in the report entitled "Action Taken," there is no mention
that miners were retrained to not walk up belts. Hom could not provide any explanation for this
omission and he did not testify that such instructions were given following the accident. (Tr.
318). Bartz testified that miners signed a company memo prohibiting thein from walking up
belts after the citations and order were issued as part of the abatement required by Inspector
Allen. (Tr. 377-78). Based on the evidence in the record, I credit the testimony of Inspector
Allen and Jose Adame on this issue. I find that Suburban did not have a policy that prohibited
miners from walking up the stacker conveyors. The belt was used regularly to get to the head
pulley and it was not a safe means of access.
I also find that the violation was S&S. It was reasonably likely that someone walking up
the belt would have slipped and fallen, assuming continued mining operations. Ifa miner were
to fall he would likely sustain serious injuries, such as a broken ankle or head injuries. The
citation was abated when Suburban installed a grease line from the ground to the fitting on the
head pulley. Miners can now grease the bearings on the head pulley from the ground level.

2

Hom and BartZ testified that this conversation took place on Jtily 15 or 16 before the
citations and order was issued and that they never told Allen that miners walk up the belts at the pit.
{Tr. 305-08, 370-72).
28 FMSHRC 370

The Secretary contends that the violation was the result ofSuburban's Wlwarrantable
failure to comply with the safety standard. She argues that Suburban knew that miners were
walking up the conveyors to grease head pulleys. Suburban knew that this practice had existed
since it purchased the pit and did not stop it. The Secretary relies on the testimony ofAdame that
employees frequently gained access to the head pulley by walking up the belt. Adame felt no
hesitation in walking up the belt in plain view of supervisors because that was the method
employees often used. Inspector Allen testified that Messrs Hom, Bartz, and Wallett told him
that walking up the belt was a practice at the mine. An operator's faillire to take·action to abate a
known hazard is an aggravated circuinstance which supports an unwarrantable failure finding.
The Secretary argues that the hearing testimony of Bartz and Horn that they were swprised that
employees frequently walked up belts should not be credited. She contends that they
''backpedaled" from their previous statements only after they received the W1Warra1~.table failure
citation and order. (S. Br. at 9). The Secretary also notes that, after the accident, Suburban did
not warn or remind employees not to walk up the belt.
As stated above, Suburban contends that its employees were not authorized to walk up
the stacker eonveyor to grease the he3d pulley. At the hearing, Bartz emphatically denied that
miners were permitted to walk up conveyors or that it was a practice at the·mine. Suburban
further maintains that a safe means of access was provided in that employees were permitted to
walk up the material pile to gain access -t o the head pulley and were also allowed to lower the
conveyor. Suburban argues that.Adame chose to ignore company policy and walk up the belt on
the day of the accident. Suburban maintains that its actions did not constitute aggravated
conduct.
Unwarrantable failure is defined as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference,"
or the "serious lack of reasonable care." Id. 2004-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC at 193-94. A number of factors are relevant in determining whether a violation is the
result of an operator's unwarrantable failure, such as the extensiveness of the violation, the
length of time that the violative condition has existed, the operator's efforts to eliminate the
violative condition, whether an operator has been placed on notice that greater efforts are
necessary for compliance, the operator's knowledge of the existence of the violation, and
whether the violation is obvious or poses a high degree of danger. Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co.• 21FMSHRC997, 1000 (Sept. 1999);
Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001).
I find that the Secretary established that this violation was the result ofSuburban's
aggravated conduct. There is no question that Adame was not wearing a lanyard when he walked
up the belt and the conveyor was not equipped with handrails. As stated above, I credit the
testimony of Mr. Adame that he always walked up the belts, that nobody ever told him not to do
so, and that he observed other employees walking up the belts to grease the head pulley. I find
that it was a common practice at the mine and that management was aware of this practice. I also

28 FMSHRC 371

credit the testimony of Inspector Allen that both Bartz and Hom told him that miners walk up
conveyors to grease the head pulleys. Miners had been walking up the belt for a long time.
Lopez worked in the pit and admitted that he was not around the conveyol'S when they were
greased so he had little knowledge of the actual greasing practices. Although Lopez never
trained miners to walk up belts, that practice was not prohibited.
I believe that it is quite significant that, after.the accident, Suburban's management did
not warn or counsel employees not to walk up belts. As stated above, if Hom or Bartz were so
surprised that Adame had walked up the belt to grease the head pulley, one would expect this key
fact to be included in Hom's accident investigation report and that miners would have been
retrained not to walk up belts. In addition, the accident report prepared by Bartz and submitted to
MSHA on an official MSHA form also does not indicate that Suburban was concerned about
Adame's presence on the belt. (Ex. P-3). Miners were told not to walk up the belts only after
Inspector Allen required.training on that issue to terminate his order of withdrawal. Wallett's
statements to Inspector Allen are consistent with Adame's testimony on this issue.
I find that Suburban knew that miners walked up the belts at the mine. These miners
were not specifically trained to walk up belts, but it was a common practice. Although
Suburban's managers did not know that Adame would be walking up the belt early in the
morning on July 15, they knew that when the bearings on the head pulley needed to be greased, it
was reasonably likely that Adame or another miner would walk up the belt to perform the task.
This practice had been ohgoing. Given the significant slipping hazard, this method of getting to
the head pulley did not provide safe access to a working place. Although, some miners may have
walked up the sand pile, the Secretary did not charge Suburban with a violation of the safety
standard for that method of access so it is not at issue in these proceedirigs.
Because of my unwarrantable failure holding, I find that Suburban' s ·negligence was high.
A penalty of $6,000.00 is appropriate. I have reduced the penalty from the proposed penalty of
$8,300.00 because, although Order No. 6311797 discussed below does not duplicate this
violation, the two violations are related with the result that there is "some·overlap between the
two." (S. Br. 16).

D.

Order No. 6311797

Inspector Allen issued Order No. 6311797 under section 104(d)(l) of the Mine Act
alleging a violation of section 56.15005 as follows:
A miner who had been performing maintenance on the 80 feet long
Kolberg sand stacker conveyor had not been wearing a safety belt
with a lanyard or any type of restraining device and/or railing to
prevent ot stop a fall of approximately thirty feet to the ground ·
below.· Falls of this nature can be serious and the chance of an
accident, with greased components and the lack of proper hand and

28 FMSHRC 372

foot holds, is reasonably likely. Manager Russell Bartz stated that
grease hoses on the head pulleys running to the ground level were
hard to maintain and that it was easier to have the miners go up the
conveyors. Manager Russell Bartz engaged in aggravated conduct
constituting more that ordinary negligence in that he was aware of
the common practice of working on the elevated conveyors to
perform maintenance without fall protection.
Inspector Allen determined that an injmy was reasonably likely and that any injmy could
reasonably be expected to be fatal. He determined that the violation was S&S, that Suburban' s
negligence was high, and that the alleged violation was a result ofSuburban' s unwarrantable
failure to comply with the standard. The safety standard provides, in part, that "[s]S:fety belts and
lines shall be worn when persons work where there is a danger of falling." The Secretary
proposes a penalty of $8,300.00 for this order.
Inspector Allen testified that the safety standard requires that miners working in elevated
work areas be protected with safety belts and lanyards. Mr. Adame was not wearing any fall
protection gear and he faced a danger of falling as he crouched at the top of the belt to grease the
head pulley. (Tr. 144-45). Miners have been killed as a result of falling from heights less than
25 feet. He determined that the violation was the result ofSuburban' s unwarrantable failure
based on the conversations he had with Hom and Bartz. (Tr. 148). Inspector Allen testified that
when he asked to see Suburban' s fall protection equipment, all that could be found was an old
safety belt without a lanyard.
Suburban makes the same arguments with respect to this order as it did with respect to the
previous citation. It maintains that it was Suburban's practice and procedure for miners to grease
the bearings on the head pulley for stacker conveyors by walking up the pile ofmaterial directly
under the conveyor. As a consequence, the top of the conveyor was not a working place and
miners were not authorized to be up there.
For the reasons set forth with respect to the previous citation, I find that the Secretary
established a violation. There can be no dispute that Adame was at the top of the conveyor
without any fall protection on July 15, 2004. In addition, I find that the evidence establishes that
miners were often at the top of the conveyor when greasing a head pulley. The company had no
safety lines or lanyards to protect miners from falling. In addition, no handrails were at the top to
eliminate or reduce the risk of falling. This violation does not duplicate the previous violation
because the two standards impose separate and distinct duties upon the mine operator. See
Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 (March 1993). One deals with safe
access to a working place and the other with working conditions at the work place. A mine
operator could, for example, violate the safe access standard without violating section 56.15005
if the miner used fall protection at the top of the conveyor and handrails were not present along
the side of the conveyor.

28 FMSHRC 373

For the same reasons stated with the previous citation. I find that the Secretary established
that the violation was S&S. It was reasonably likely that someone at the top of the conveyor
greasing the bead pulley would lose his balance and fall, assuming continued mining operations.
If a miner were to fall, h~ would likely sustain a serious injury. As stated above, the violation
was abated when Suburban installed a grease line to the fitting on the head pulley.
Finally, I find that this violation was the result ofSuburban's unwarrantable failure to
comply with the safety standard. The parties presented the same argunients with respect to this
issue as in the previous citation. The reasoning for my unwarrantable failtire finding for the
previous violation is also the same for this violation. Mine management knew that miners stand
on the top of the conveyor without fall protection to grease the head pulley.
Suburban's negligence is high. A penalty of$6,000.00 is appropriate. I have reduced the
penalty from the proposed penalty of $8,300.00 because, although Citation No. 6311796
discussed above does not duplicate this violation. the tWo violations are related with the result
that there is "some overlap between the two." (S. Br. 16).

E. Penalties Broumt Aeainst Russell Bartz (WEST 2005-223-Ml.
Section 110(c) of the Mine Act provides that, whenever a corporate operator violates a
mandatory health or safety standard, any agent of such corporate _operator who "knowingly
authorized, ordered, or carried out such violation" shall be subject to a civil penalty. 30 U.S.C. §
820(c). The Commission held that "knowingly" means ''knowing or having reason to know."
Kenny Richardson, 3 FMSHRC 8, 16 (Jan 1981); ajf'd 689 F.2d 623 (6th Cir: 1982). "A person
has reason to know when he has such information as would lead a person exercising reasonable
care to acquire knowledge of the fact in question or to infer its existence." Richardson, 3
FMSHRC at 16. "If a person in a position to protect employee safety and health fails to act on
the basis of information that gives him knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a manner contrary to the remedial nature of
the statute." Id. "In order to establish section 110(c) liability, the Secretary must prove only that
the individual knowingly acted not that [he] knowingly violated the law." BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1245 (August 1992).
The Secretaryprdposed penalties against Mr. Bartz for the violations described in
Citation No. 6311796 and Order No. 6311797. The Secretary argues that Bartz had actual
knowledge that miners walked up the belt to grease the head pulley and he did nothing to stop
them. In the alternative, she argues that he failed to act on the basis of information within his
knowledge that gave him reason to know that miners walked up the belts. The Secretary telies
heavily on the testimony of Adame and Inspector Allen. Allen testified that Bartz told him that
employees usually walk up the stockpile to grease the head pulley but that they may walk up the
belt if the stockpile is not high enough for a miner to reach the grease fitting.

28 FMSHRC 374

Suburban contends that it was against company policy for employees to walk up conveyor
belts, that it was not a practice for employees to walk up belts, and that Bartz had never observed
anyone walking up a belt. Adame was not directed by Bartz to walk up the belt on July 15. In
addition, Adame had not been trained or instructed by Bartz or anyone in management to walk up
conveyor belts to grease the head pulley. Finally, Wallett did not have the authority to tell
Adame to grease the pulley because Wallett did not have supervisory responsibility over him.
Adame admitted that Wallett did not specifically ask him to walk up the conveyor to gain access
to the head pulley; he just went that way because that was his practice. Because head pulleys
must only be greased about once per month, Adame should not have been on the conveyor that
morning and Bartz could not have anticipated that he would be on the belt. Bartz expected that
any necessary greasing would be done on Saturday when the plant is shut down or after the plant
is shut down at the end of the shift during a weekday.
The parties do not dispute that, as the aggregate division manager for Suburban, Bartz
was an agent of Suburban. Suburban is a corporation. (Ex. P-5). There is no question that it was
unusual for anyone to grease a head pulley after the generator had been turned on at the
beginning of a shift. I find that Bartz could not have anticipated that Adame would walk up the
conveyor at the start of the shift on July 15, 2004, and crouch down to grease the head pulley.
Nevertheless, I find that Bartz knew that miners often walked up the belts to grease the pulley.
Although miners also may have walked up the stockpiles from time to time, Bartz knew that
miners also accessed the area by walking up the belts. I credit the testimony of Inspector Allen
that, before he wrote any citations or orders, Bartz told him that miners sometimes walked up
belts to grease head pulleys. (Tr. 120-21, 144). I also credit the testimony of Adame that it was a
common practice at the mine. I find that Bartz, who had worked at almost every job at the
facility, knew that employees walked up belts. This practice existed before Suburban purchased
the pit and continued until this accident.
I also find it telling that the accident report required by 30 C.F.R. § 50.20 signed by Bartz
and sent to MSHA did not mention that Adame·violated company policy by walking up the belt

and standing on the belt while greasing the pulley. Both that report and the company accident
investigation report prepared by Hom mention that miners were retrained on lockout and tagout
procedures but there is nothing about retraining miners on gaining access to head pulleys. (Exs.
P-3 & R-2). The only evidence in the record of miners being trained not to walk up belts relates
to the training required by Inspector Allen to terminate the order of withdrawal. I find the
testimony of Inspector Allen and Mr. Adame to be significantly more credible than the testimony
of Hom·and Bartz with respect to these two citations. Mr. Lopez worked in a different area of
the pit so he was not in a position to know the practices of miners who do the greasing on the
conveyors. Finally, I must note that walking up a sand pile that is up to·20 feet high in order to
grease a pulley would not be as easy or a8 trouble free as Bartz and Hom seemed to suggest at the
hearing. Both Hom and Bartz testified that it was safe to walk up the pile of sand under a
conveyor, reach up, and grease the head pulley.

28 FMSHRC 375

In Roy Glenn, 6 FMSHRC 1583 (July 1984), several miners were instructed by their
supervisor, Mr. Glenn, to weld a valve on an oxygen line in a mill building. To perform this
welding, it was necessary to stand on an adjacent girder some distance above the floor. Rather
than using a ladder to access the area, the miners climbed some stairs and walked along the
girders without using safety lines to get to the work site. Glenn went to another area to check
other valves and when he returned he saw one of the miners walking across the girder. He
waived him down with a flashlight just as an MSHA inspector was entering the area. The
Commission held that Glenn did not knowingly violate the safety standard. The Commission
determined that the administrative law judge's finding that Glenn had reason to know that miners
"might" or "could" walk across the girders was insufficient to establish a knowing violation. Id.
at 1588. A supervisor aiways has "reason to know" that miners "might" perform tasks in an
unsafe manner. Id. This "degree of knowledge is too contingent and hypothetical to be legally
sufficient"·under the test set out in Kenny Richardson. Id. The Commission went on to state:

Before personal liability under section 110(c) can be i.Iilposed on
an operator's agent for "knowingly" authorizing, ordering, ot
carrying out a violation, the Secretary's proof must rise above the
mere assertion that, at the time of assignment, an assigned task
could have been performed by miners in an unsafe manner.
Adoption of this rationale could mean that . . . an operator's agent
could be held personally liable under section 110(c) for failing to
anticipate the miner's unsafe actions and not giving specific
instructions to each miner, at the time of the assignment, to avoid
all hazar4ous approaches to a task that could be followed.
Id.
In Roy Glenn, the Commission tailored its Kenny Richardson analysis to those situations
where a "violation of a mandatory standard does not exist at the time of the corporate agent's
failure to act, but occurs subsequent to that failure." Id. at 1586. The Commission held as
follows:

[A] corporate agent in a position to protect employee safety and
health has acted "knowingly," in violation of section 110(c) when,
based on the facts available to him, he either knew or had reason to
know that a violative condition or conduct would occur, but he
failed to take appropriate preventive steps. To knowingly ignore
that work will be performed in violation of an applicable standard
would be to reward a see-no-evil approach to mine safety; contrary
to the strictures of the Mine Act.
Id.

28 FMSHRC 376

Although the present case has some similarities with Roy Glenn, there are some important
differences. Mr. Bartz was not present when Adame walked up the belt. More importantly,
Bartz did not assign Adame the task of greasing the head pulley that morning. Nevertheless,
Bartz knew that miners periodically greased head pulleys and, as stated above, he knew thatminers often walk up the belts in order to perform this task. Citation 6311796 alleges that Bartz
''was aware of, and condoned, the common practice of walking up the conveyers to perform
maintenance." Order No. 6311797 alleges that Bartz ''was aware of the common practice of
working on the elevated conveyors to perform maintenance without fall protection." Inspector
Allen did not premise the citation and order on the fact that Bartz ordered Adame to walk up the
belt or on Bartz's knowledge of Adame's activities that particular day. Rather, the inspector ·
issued the citation and order because mine management was aware of the common practice of
walking up belts to grease the head pulleys. The Secretary brought the case agains~ Bartz on the
basis of that knowledge.
Jn Warren Steen Construction, Inc., 14 FMSHR.C 1125 (July 1992), the operator was
moving a stacker conveyor to another location when it passed close to overhead power lines
owned by the local public utility. A miner was electrocuted when the conveyor kept rolling and
struck a power line. Mr. Steen argued that lie was not liable under section 110(c) of the Mine
Act because he was not at the mine at the time of these events. He also maintained that the
company had placed conveyors within eight feet of these power lines in the past without
receiving citations from MSHA. Mr. Steen also contended that he was not aware of a mandatory
safety standard requiring ten feet clearance from the power line and that he did not knowingly or
intentionally tell his employees to position the conveyor in such a fashion that it would be in
violation of federal law. Id. at 1131. The Commission rejected these argwnents. It held that
''the Secretary must prove only that an individual knowingly acted, not that the individual
knowingly violated the law." Id. (citation omitted). The Commission also held that the fact that
Mr. Steen was not at the mine at the time of the accident is no defense to the finding that he had
knowingly authorized the move of the stacker conveyor. Steen gave the order to move the
conveyor and knew that it would be close to the power lines.
In the present case, Bartz was not aware that Adame would be climbing up the belt on the
morning of July 15, 2004, and he did not see him do so, but he did know that miners walked up
the belt and greased the head pulley while standing at the top of the belt. Mr. Bartz was a person
in a position to protect employee safety and health and he failed to act on the basis of information
that gave him knowledge or reason to know that miners walked up conveyor belts to grease the
head pulley for the belt. He never took any action to stop this practice prior to the time Suburban
was issued the citation and order. As a consequence, he acted knowingly and in a manner
contrary to the remedial nature of the statute. I find that the Secretary established that Bartz
knowingly authorized the violations.
The Secretary did not present evidence with respect to the penalty criteria in section
l lO(i) for Mr. Bartz. According to the special assessment attachment to the Secretary's petition
for penalty, the amount of the proposed penalty is based, in part, on Bartz's ''position as

28 FMSHRC 377

manager" at the time of the violations and any information Bartz provided at the safety and
health conference concerning his ability to pay a penalty. Because the conference was by
telephone and Bartz did not agree with the citation and order, there is no indication that any
information was provided. I find that the violations were serious and Bartz's negligence was
high. Mr. Bartz has no history of previous violations. Indeed, this operation received two
Holmes Safety Awards from MSHA while Bartz was managing the pit for Aggregates, fuc. (Tr.
349-50). Until Adame was injured, there had never been any accident, injury, or illness at this pit
that was required to be reported to MSHA under 30 C.F.R. § 50.20(a). (Tr. 389-90). The cited
conditions were rapidly abated in good faith when Bartz ordered the installation of a grease hose
from the pulley to the giound.
In Sunny Ridge Mining Co., 19 FMSHRC 254, 272 (Feb. 1997), the Commission held
that "judges must make findings on each of the [statutory penalty] criteria [of section 11 O(i)] as
they apply to individuals." The ''relevant inquiry with respect to the criterion regarding the effect
on the operator's ability to continue in business, as applied to an individual, is whether the
penalty will affect the in<lividual's ability to meet his financial obligations . .. [w]ith respect to
the 'size' criterion, . . . as applied to an individual, the relevant inquiry is whether the penalty is
appropriate in light of the individual's income and net worth." Ambrosia Coal and Construction
Co., 18 FMSHRC 819, 824(May1997) (Ambrosia I). The Commission further held that, if an
individual is married, the judge should consider the individual' s share of the household net
worth, income, and expenses. Ambrosia Coal & Construction Co., 19 FMSHRC 381, 385 (April
1998) (Ambrosia II).
The Secretary did not present any evidence on the size criterion and Bartz did not present
any evidence on the ability to continue in business criterion. I hold that, under the circumstances
of this case, the remedy is not to further delay these cases by requesting additional information,
but by entering a finding that Bartz is relatively "small" and that the penalty I assess will not
adversely effect the Bartz's "ability to continue in business. · See William A Hooten, Jr. 21
FMSHRC 1083, 1091 (Oct. 1999) (ALT). Taking into consideration all of the penalty criteria, I
find that a penalty of $200.00 for each violation is appropriate.

F. Penalties Broueht Aeainst Robert K. Hom (WEST 2005-224-Ml.
1. Horn was Suburban's A&ent.

Mr. Hom and Suburban argue that Hom was not a "director, officer, or agent'' of
Suburban as those terms are used in section 110(c) of the Mine Act. They contend that Hom was
employed by Suburban as an hourly loader operator. He was not a manager or supervisor at the
pit and he did not have authority to hire or fire, promote, discipline, or demote employees. Hom
worked four days a week, ten hours a day, operating a front~end loader from 6:00 a.m. until 4:00
p .m. He received overtime pay if he worked more than 40 hours a week. (Tr. 330). He did not
work on Saturdays when conveyors and other equipment were serviced and greased. The plant
continued to operate when he was not present. Because of his operating experience, he provided

28 FMSHRC 378

safety training to employees, but he was not Suburban's agent. Suburban states that Bartz was
the only supervisor at the pit.
The Secretary argues that, although Hom did not have a management title, he functioned
as a manager at the pit. She contends that, because the purpose of the Mine Act is to promote
safety, the key question is whether the alleged agent's actions had the ability to affect safety and
health. "[I]f a miner has been delegated the responsibility for giving assignments to other
miners, and for telling those miners how a particular job is to be performed, and he has the ability
to stop those miners ifhe does not approve of the manner in which they are performing their
jobs, then he is an "agent" of the operator within the meaning of section 3(e) [of the Mine Act]
regardless whether he [has a management job title]." (S. Supp. Br. at 3). She contends that Hom
was an agent because he fits within this definition. Jn addition, Hom was listed as ~e '1Jlant
manager" on Suburban's legal identity report dated April 2, 2004. (Ex. P-5). Hom-testified that
he was the lead man. Adame considered Hom to be his boss. Jn addition, Hom had an office in
a trailer at the scale house, he instructed Wallett to write out a statement about the accident, and
he told Inspector Allen that he was the person in charge at the mine. (Tr. 343).
Hom testified that he has worked at the pit for 16 years, first with Aggregates, Inc., and
now with Suburban. He has held most jobs at the pit from "mud pfoker" to operating heavy
equipment. Since Suburban bought the pit, he had made recommendations to Mr. Bartz as to
who should be hired or who should be fired, but Bartz made the final decisions. (Tr. 277). He
could recommend that hourly employees should be given a raise in pay, but he could not
authorize such a raise. Occasionally, Bartz would give him special assignments, such as calling
vendors to come out to the mine. (Tr. 279). Hom was the primary trainer at the pit. He trained
most newly hired employees and conducted refresher training courses. Most of the training was
conducted using MSHA and OSHA training videos and Hom was available to answer any
questions. Hom testified that bis primary responsibility was to load sand and gravel into trucks
using a front end loader for delivery to customers. He testified that he worked four days a week
and he did not have any responsibility for supervising employees. (Tr. 286). Nevertheless, Hom
was the senior miner at the pit and the lead man. (Tr. 342). He told Inspector Allen that he was
the person in charge. Id. Ifhe saw a miner committing an unsafe act, he would usually yell at
them. Hom testified that he observed Wallett walking up a conveyor several months before the
accident. Hom said that he told Wallett to get down and not walk up there again. When Wallett
told him that he was checking a roller, Hom replied "you don't check a roller." (Tr. 287; 32021 ). Hom also gave other employees warnings for safety infractions, such as for not wearing a
hard hat. Hom gives them an oral warning for the first offense and writes a letter for a second
offense. (Tr. 321). He has also delayed starting the crusher if guards were not in place. Hom
has ordered that mobile equipment be shut down until the brakes are fixed. (Tr. 323). After the
accident, Bartz and management from Suburban's central office discussed the incident with
Wallett and decided that he should be terminated from his employment. (Tr. 305, 312). Hom
did not participate in that decision.

28 FMSHRC 379

It is clear that Hom was not a director or officer of Suburban, but the issue is whether he
was Suburban's "agent.;' The term "agent" is defined in section 3(e) of the Mine Act as "any
person charged with the responsibility for the operation of all or part of a coal or other mine or
the supervision of mine~ in a coal or other mine." In considering whether a mine employee is an
agent of the operator under the Mine Act, the Commission has "relied, not upon the job title or
the qualifications of the miner, but upon his function, [and whether it] was crucial to the mine's
operation and involved a level of responsibility normally assigned to management personnel."
Ambrosia I, 18 FMSHRC at 1560 (citation omitted). I find that Hom's work at the pit was
crucial to its operation and involved "a level of responsibility normally assigned to management
personnel." Id. Both Hom and Suburban held him out as someone with management
responsibility. Hom told Inspector Allen when he arrived to inspect the facility that he was in
charge. (Tr. 342). He describes himself as. a "lead man." Bartz testified that, although Hom did
not have a title at the time of the accident, he functioned as "either plant manager or plant
foreman." (Tr. 390).3 The legal identity report Suburban filed with MSHA listed Hom as the
person in charge of health and safety at the pit and listed his title as "Plant Manager." (Ex. P-5).
Hom "kept the paperwork and such for MSHA" in his desk in the scale house trailer. (Tr. 283).
He prepared the company's report of its investigation of Adame's accident that is required by 30
C.F.R. § 50.1 l(b). (Tr. 312; Ex. R-3). Adame consi<k'.red Hom to be his supervisor.
·
Although Hom did not have the authority to hire or terminate employees, he provided
advice to Bartz on these decisions. Hom did not assign employees their work duties on a daily
basis, but employees knew their job assignments. Excluding Hom, Bartz, and the person in the
scale house, the pit employed about eight miners. (Tr. 316). In his testimony, Horn stated that
he would verbally discipline a miner if he saw him committing an unsafe act. He would also
report the problem to Bartz and write a letter if conditions warranted. (Tr. 321-22). Hom
provides task and safety training to all new miners and he provides annual safety retraining. He
also testified that he delayed the start-up of the plant when he found that guards for pinch-points
needed to be replaced. (Tr. 323).
Based on the evidence of record, I find that the evidence establishes that Hom was
Suburban' s agent for purposes of section 110(c) of the Mine Act. I base this holding on Hom's
wide range of responsibilities. Because Horn' s responsioilities were not routine, he was required
to exercise a great deal of discretion. Suburban relied on Hom to perform these responsibilities
with a great deal of independence and little supervision. His responsibilities were not ''tightly
circumscribed" by Suburban and he was not "closely supervised" by Bartz." Martin Marietta
Aggregates, 22 FMSHRC 633, 639 (May 2000) (citations omitted). I recognize that he did not
have independent authority to hire and fire employees, but he could discipline them and correct
their work practices. He had the authority to shut down the plant or a piece of equipment. When
Bartz was not present, Hom was responsible for the operation of the pit. Hom represented
himself to fuspector Allen as being in charge at the pit and Suburban advised MSHA on its legal

3

Hom testified that he was given the title ''plant manger" by Suburban soon after this
accident and a former employee was rehired to operate the loader. (Tr. 324-25).
28 FMSHRC 380

identity report that he was the plant manager. Suburban delegated virtually total responsibility
for safety and health to Horn. He interacted with MSHA inspectors, and he kept all required
records. Even though Hom was paid at an hourly rate, I find that he was Suburban's agent.
2. Hom knowineJy Authorized the Violations.
I find that Hom knowingly authorized the violations set forth in Citation No. 6311796
and Order No. 6311797 for the same reasons set forth with respect to Mr. Bartz. Hom was not
aware that Adame would be climbing up the belt on the morning of July 15, 2004, and he did not
see him do so, but he did know that miners at the pit walked up the belt and greased the head
pulley while standing on top of the belt. Mr. Hom was a person in a position to protect employee
safety and health and he failed to act on the basis of information that gave him kno'Yledge or
reason to know that miners walked up conveyor belts to grease the head pulley for the belt. He
never took any action to stop this practice prior to the time Suburban was issued the citation and
order. As a consequence, he acted knowingly and in a manner contrary to the remedial nature of
the statute. I find that the Secretary established that Bartz knowingly authorized the violations.

As with Bartz, the Secretary did not present evidence with respect to the penalty criteria.
I enter the same findings. The violations were serious and Hom's negligence was high. There is
no history ofprevious violations for Mr. Hom. Suburban's pit has an excellent history of
previous violations. There were no previous accidents, injuries, or illnesses·at this pit. The
conditions were rapidly abated. I find that Mr. Hom is a small operator and that the penalties I
assess will not adversely affect his "ability to continue in business." Taking into consideration
all of the penalty criteria, I find that a penalty of$200.00 for each violation is appropriate.
Il. APPROPRIATE CML PENALTIES
Section 11 O(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The parties stipulated that Suburban was issued eleven non-S&S
citations and one S&S citation in the 12 months preceding the accident. In 2004, the mine
worked about 21,211 hours, making it small mine. This was Suburban's only sand & gravel pit.
All of the violations at issue in these cases were abated in good faith. The penalties assessed in
this decision will not have an adverse effect on Suburban's ability to continue in business. My
gravity and negligence findings are set forth above. My findings with respect to the application
of the penalty criteria to Messrs. Bartz and Hom are also set forth above. Based on the penalty
criteria, I find that the penalties set forth below are appropriate.
ill. ORDER

Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation/Order No.

30 C.F.R. §
28 FMSHRC 381

Penalty

WEST 2005- 142-M (Suburban)
6311794
6311795
6311796
6311797

56.14105
56.1420l{b)
56.11001
56.15005

$250.00
250.00
6,000.00
6,000.00

56.11001
56.15005

200.00
200.00

WEST 2005-223-M (Russell Bartz)
63 11796
6311797

WEST 2005-224-M (Robert K. Hom)
6311796
6311797

56.11001
56.15005

200.00
200.00

For the reasons set forth above, the citations and order are AFFIRMED as written.
Suburban Sand & Gravel is ORDERED TO PAY the Secretary of Labor the sum of $12,500.00
.within 30 days of the date of this decision.
For the reasons set forth above, Russell Bartz violated section l IO(c) ofthe Mine Act and
he is ORDERED TO PAY the Secretary of Labor the sum of$400.00 withfu 30 days of the date
of this decision. For the reasoils set forth above, Robert K . Hom violated section l IO(c) of the·
Mine Act and he is ORDERED TO PAY the Secretary of Labor the sum of$400.00 within 30
days of ihe date of this decision. Upon payment of the penalties, the contest proceedings are

DISMISSED.

Richard W. Manning
Administrative Law Judge

28 FMSHRC 382

Distribution:
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)
James J. Gonzales, Esq., Holland & Hart, P.O. Box 8749, Denver, CO 80201-8749 (Certified
Mail)

RWM

28 FMSHRC 383

FEDE·RAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE 'OF ADMINISTRATIVE LAW JUDGES
601 New Jel'Slty Avenue, N.W., Suite 9500
Washington, DC 20001

June 26, 2006

CIVJLPENALTYPROCEEDINGS

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

Docket No. CENT 2000-294-M
A.C. No. 03-00257-05501 XSC

v.

Docket No. CENT 2003-26-M
A.C. No. 03-00257-05505 XSC

PIIlLIP ENVIRONMENTAL SERVICES,
Respondent

Arkansas Operations Mill

DECISION1
Appearances:

Michael D. Schoen, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas~ for the Petitioner;
Steven R. McCown, Esq., Littler Mendelson, Dallas, Texas,
for the Respondent;

Before:

Judge Feldman

1

Disposition of these cases was delayed by the October 2001 anthrax attack on the
U.S. Postal Service. Docket No. CENT 2000-294-M was stayed on January 19, 2001, for
consolidation with any citations that may be issued upon completion of The Mine Safety
and Health Administration's (MSHA's) accident investigation of a January 21, 2000,
fatal demolition accident. The accident investigation resulted in the issuance of Citation
No. 7894001. The Secretary of Labor's (the Secretary's) proposed $15,000.00 civil penalty
for Citation No. 7894001 was received by Philip Envirorunental Services {Philip) on
September 12, 2001. Philip mailed its notice of contest to MSHA on October 1, 2001,
but it apparently was never received because of the anthrax incident. Consequently, the
proposed penalty assessment was deemed a final order of the Commission. 30 U.S.C. § 815(a).
On March 19, 2004, .the Commission remanded this matter to the Chief Administrative Law
Judge (CALJ) to determine if Philip's contest should be reopened. The CALJ reopened this
matter and assigned the case to me on August 16, 2004. After completion of discovery, these
matters were scheduled for hearing on July 19, 2005. However, due to the retirement and
unavailability of Philip's demolition expert, these matters were continued to enable Philip to
retain a new expert. Neither Philip nor the Secretary allege prejudice as a result of this delay.
28 FMSHRC 384

These civil penalty proceedings concern petitions for assessment of civil penalty filed
pursuant to section l lO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act),
30 U.S.C. § 820(a), by the Secretary of Labor against the respondent, Philip Environmental
Services. Philip has stipulated that it is "an operator" subject to the jurisdiction of the Mine Act
as a contractor performing services at the Arkansas Operations Mill, a surface alumina mill
owned by Alcoa World Alumina (Alcoa). (Tr. 18). 30 U.S.C. § 802(d).
The petition iri Docket No. CENT 2000-294-M seeks to impose a total civil penalty of
$90.00 for Citation No. 7884114 for an alleged violation of the mandatory safety standard in
30 C.F.R § 56.11001. This safety standard requires that a safe means of access must be provided
to all working places. The citation was issued because there were puddles of caustic material
located on the ground outside the south side of the digestion building. Subsequent to the hearing,
on March 2, 2006, the parties filed a Joint Motion to Approve Settlement wherein the Secretary
agreed to vacate Citation No. 7884114. The parties' settlement motion IS GRANTED and
Docket No. CENT 2000-294-M shall be dismissed.
The remaining issue for resolution is the petition in Docket No. CENT 2003-26-M
that seeks to impose a $15,000.00 civil penalty for Citation No. 7894001. This citation alleges
a significant and substantial (S&S) violation of the mandatory safety standard in 30 C.F.R
§ 56.16010 that requires that drop areas are cleared ofpersonnel before material is dropped
from an overhead elevation.2 The citation was issued to Philip as a result ofits performance
of demolition work at Alcoa's alumina facility. The citation was issued following a
January 21, 2000, accident that occurred when David Gauthier, a Philip employee, was fatally
injured when he was struck by a dust collector that fell from the seventh floor of a building
undergoing demolition.
The hearing was conducted on February 7, 2006, in Little Rock, Arkansas. The parties'
post-hearing briefs and replies have been considered.
I. Statement of the Case

Section 56.16010 of the Secretary's regulations provides:
To protect personnel, material shall not be dropped from an overhead elevation
until the drop area is first cleared ofpersonnel and the area is then either guarded
or a suitable warning is given.
(Emphasis added).

2

A violation is properly designated as significant and substantial if there is a reasonable
likelihood that the hazard contributed to by the violation will result in a serious injury.
Nat '/. Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
28 FMSHRC 385

The dimensions of the "drop zone" are not defined in the regulation. Eyewitness
accounts reflect that, at the time of the drop, the victim was standing to the side and in front of
the building being demolished. Specifically, the victim was standing approximately 29 Yz feet to
the side of the building, and 76 Yz feet in front of the building. (See Gov. Ex. 7; Gov. Ex. 38).3
The drop resulted in the dust collector impacting the ground, causing a plume of dust that totally
obscured visibility. Attempting to flee to safety, the victim ran from his position in a
southeasterly direction towards the building and into the path of the dust collector. He was
struck by the dust collector at a location 120 feet from the base. of the southwest comer of the
building. (See App. I).
The central issue is whether the victim was standing within the "dtop area" as
contemplated by section 56.16010 of the Secretary's regulations immediately prior to the drop.
As discussed below, because the dust collector impacted the ground in close proximify to where
the victim was standing, the Secretary has demonstrated that the drop zone was not cleared of
personnel before demolition began. Consequently, Citation No. 7894001 shall be affirmed.

II. Findines of Fact
The essential facts are not in dispute. The Arkansas Operations Mill is located in
Bauxite, Arkansas. The mill is situated in close proximity to Alcoa's alwilinum mine. (Tr. 30).
Variations of four products were produced at the mill: The products were hydrate chemicals,
calcined alumina, calcium aluminate cement and tubular. Hydrate chemicals are manufactured
via a pressure digestion process.· The Activated Aluniina Division, that included the refinery and
clarification areas, ceased operations in 1993.
Philip was hired as an independent contractor to demolish the abandoned portion of the
plant and began its on-site work in August 1999. On the day of the accident on January 21, 2000,
Philip was in the process of demolishing Building 70, a 103-foot tall, seven story steel bulk
loading structure. (Gov. Ex. 2, p. l; Gov. Ex. 16, p.l). Philip employees were iising a "cut and
drop" or "cut and pull" method of demolition, a commonly used procedure in the demolition
industry. (Gov. Ex. 2, p.2; Tr. 202-03). Using this procedure, after determining the direction of
removal, sections of the building structure were pre-cut using an oxygen/acetylene torch.
Complete torch cuts were made on all but one of the steel structural members of the building,
thus creating a hinge point or "sticker'' on the support. (Gov't. Ex. 2, p.2; Gov. Ex. 16, p.2;
Tr. 46, 48-9).
I

3

Gov. Ex. 7 and Gov. Ex. 38 have been appended to this decision and will be referred to
hereafter as Appendix I and Il, respectively. Gov. Ex. 7 is a diagram of the site conditions on
January 21, 2000, depicting Philip~s designation of the location of its employees and MSHA' s
measurements. Gov. Ex. 38 is Inspector Graham's accident investigation field notes containing
measurements taken at the accident site. (Tr. 175).
28 FMSHRC 386

Wire cable was then attached to the cut section of the building and connected to the boom
of a Caterpillar L-350 excavator. The operator of the excavator, positioned in an operator's
compartment, used the controls to maneuver the boom to pull down the partially severed
structural portion. After a pull by the excavator operator, the hinge point typically causes the precut section to rotate, shear the "sticker," and topple to the growid. (Gov. Ex. 2, pp.2-3; Gov. Ex.
16, p.2; Gov. Ex. 26). Once the section is on the growid, the excavator operator, using an
attached shearer, reduces the fallen debris to manageable-size pieces which are then removed
from the area. (Gov. Ex. 2, p.3).
At the time of the accident, the excavator was positioned approximately 80 feet from the
base of Building 70. (Gov. Ex. 2, p.3). The roof of Building 70 over the seventh floor had
already been removed using the cut and pull method. (Gov. Ex. 2, p.3; Gov. Ex. l~;p.1 ; Tt. 54).
The pre-cut section of the seventh floor to be "cut and pulled" was approximately 80 feet above
ground level. The section of the floor measured approximately 20 feet wide, 24 feet in depth and
the seventh floor was 12 feet in height. (Gov. Ex. 2, pp.2-3).
Positioned in the seventh floor was a Nor-blo 120-AS Series 39 dust-bin collector (dust
bin) also known as a bag house. The dust bin was approximately 9 feet wide, 8 feet iit length and
10 feet in height. (Tr. 75). A discharge cone was attached beneath the dust bin and a supply duct
was attached to the top. The total height of the dust bin assembly was approximately 22 feet.
(Gov. Ex. 2, p.3; Tr. 75, 222-24). The dust bin was positioned 'in an opening in the seventh floor.
Approximately 8 feet of the dust bin protruded into the·ceiling space ofthe sixth floor, and
10 feet of the dust bin was in the seventh floor space. (Gov. Ex. 2, p.3; Gov. Ex. 16, p.2; Gov.
Bxs. 21-23; Tr. 54-55, 294).
·
The dust bin was partially full and weighed approximately 5,000 pounds at the time of the
accident. (Gov. Ex. 2, p.3; Tr. 75). Prior to the pull that resulted in the accident, the dust bin
was not secured to the seventh floor because the mounting bolts had been cut off. (Gov. Ex. 2,
p.3; Gov. Exs. 16, 17, 21; Resp. Ex. 2; Tr. 66, 70-1, 143, 282). It was Philip's standard operating
procedure to first remove the bolts. (Resp. Ex. 2).
The Building 70 drop area was created by establishing an "exclusionary zone" that was
demarcated by orange mesh which was placed behind the excavator. (Gov. Ex. 16, p.2, Gov.
Exs. 22, 23, 25; Tr. 211-12). The pwpose of the mesh was to define the general parameters of
the drop zone and to warn personnel not to go into the drop zone. (Tr. 211, 275; Gov. Exs. 22,
23).
Chris Croniser, Philip's shift superintendent, was supervising the demolition activity
on Building 70 on·the day of the accident. Croniser's crew members were torch burners
Bryan Hvizdak, Ramone Lopez and Ernesto Rosales. (Gov. Ex. 2, p.1; Gov. Ex. 16, p.2;
Tr. 111).

28 FMSHR.C 387

At the time of the accident David Gauthier had been employed by Philip as a shift
superintendent for approximately two years. Gauthier bad approximately 30 years experience in
the demolition industry." (Gov. Ex. 2). Earlier in the day on January 21, 2900, Gauthier had
been working at another building located at the mine site. Gauthier joined Croniser's crew at
Building 70 at approximately 3:45 p.m. (Gov. Ex. 2, p.1). Although Gauthier was ~so a
shift superintendent, he apparently was working under the direction of Croniser at all times
relevant to the accident. (Gov. Ex. 16).
To begin demolition of the seventh floor, Croniser directed Gauthier to operate the
excavator to effectuate the pull while Hvizdak and Lopez moved to safety adjacent to the
exclusionary zone to thd southwest of the building, and Rosales moved to safety adjacent to the
exclusionary zone to the southeast of the building. (See App. I). Croniser' removed himself to a
point approximately 100 feet to the west ofthe'building. (Gov. Ex. 16). Gauthier mounted the
excavator and began pulling on the structure with the cable by lowerfug the boom while
simultaneously backing up the excavator. (Gov. Ex. 16, p.2). The pre-cut section of the seventh
floor became stuck, or hung-up, compressing and listing downward at a 20 to 25 degree angle,
rather than hinging and falling ·a s intended. (Gov. Ex. 16, p.2; Gov. Ex. 20;.Tr. 57, 301-02).
The dust bin also listed forward along with the canted pre-cut seetlon of the seventh floor.
The center of gravity of the dust bin was on the seventh floor. (Gov. Ex 2, p.3). Because the
mounting bolts had been disconnected from the seventh floor, it was reasonably foreseeable
that the dust bin could become dislodged from the seventh floor as demolition proceeded.
(Tr. 309-10). In such an event, it was difficult to predict the path of the dtist bin or its
ultimate resting location. (Tr. 311-16; 319~21).
After the seventh floor section hung, Gauthier stopped attempting to pull and Croniser
approached the cab ofthe excavator. After a brief discussion, Croniser and Gauthier switched
places with Croniser assuming his position in the operator's compartment. Gauthier positioned
himself 82 feet southwest of the southwest edge of the base ofBuild.iilg 70. (See App. I; Gov.
Ex. 16, p.2). At this location Gauthier was 29 feet 6 inches due west of the point that was
approximately 76 feet 6 inches south of the southwest coiner of the build.ihg. (See App. II).
After getting the all clear sign from Gauthier, Croniser repositioned the excavator
approximately 10 feet to the east of the position from where Gauthier previously had attempted
the pull. (Gov Ex. 16, p.2). Croniser raised the excavator boom in an upward position causing
the back of the pre-cut section to pull up slightly before stopping. (Gov Ex. 16, p.2). At that
moment, the dust bin toppled over and rolled off of the seventh floor striking the taut steel pull
cable. The dust bin continued down the cable as Croniser moved the excavator boom causing the
dust bin to "flip" off of the cable in a southwesterly direction striking the ground at a point
approximately 17 feet west of the building and 64 feet from the southwest comer of the structure.
(See App. Il; Tr. 76, 175). Striking the cable increased the dust bin's momentum as it hit the

28 FMSHRC 388

ground and continued to roll past the side of the excavator. (Gov Ex. 16, p.2). The dust bin
continued its rapid forward movement impacting the ground at a second point approximately
17 feet west of the building and 76 feet from the southwest comer of the building. (See App. Il;
Tr. 175). A dust cloud was created when the dust bin impacted the ground causing a complete
lack of visibility. (Gov Ex. 16, p.2).
The initial direction of the dust bin momentum was towards Gauthier as demonstrated by
the points of impact that were in close proximity to where Gauthier was initially standing.
(App. Il). Specifically, the second point of impact was 17 feet west of the building, only
approximately 12Yz feet from Gauthier' s .original position that was 29Yz feet west of the building.
(App. Il; Tr. 175).
To flee from the approaching dust bin, witnes8es saw Gauthier tum and run.in a
southeasterly direction. (App. I). Had Gauthier remained in his original position, he would not
have been struck by the dust bin. (Gov Ex. 16, p.2). However, it is not difficult to imagine why
Gauthier panicked and ran from the approaching dust collector.
As the dust cleared, Lopez began to scream as he approached the dust bin that had come
to rest approximately 120 feet south of the southwest comer of the building. ·Croniser
dismounted the excavator and found Gauthier under the south edge of the dust bin lying face
down with obvious head injuries. :(Gov 'Ex. 16, p.2). Gauthier was air lifted to a local hospital
but he did not survive. (Gov. Ex. 2, p.2; Gov Ex. 16, pp.2-3).

MSHA was notified shortly after the accident at 5:12 p.m. An accident investigation
team led by Willard Graham arrived at the mine site the following day. Graham ai:J.d his team
inspected the area, took measurements and photographs, interviewed witnesses and reviewed
Philip's demolition procedures at the time of the accident.

As a result ofMSHA' s investigation, on April 3, 2000, Graham issued 104(a)
Citation No. 7894001 alleging a violation of the mandatory safety standard in section 56.16010.
The citation stated:
()µJanuary 21, 2000, a shift supervisor was fatally injured when he was crushed
by a dust collector that fell from the 7th floor of a building being demolished. The
victim was standing several feet away from a track-mounted backhoe that was
attached to a wire rope being used to pull down the seventh floor. The drop area
was not first cleared of personnel prior to dropping the floor.
(Gov. Ex. 4). The citation was terminated on May 4, 2000, after all employees involved in
demolition were retrained in safe work practices regarding building demolition.

28 FMSHRC 389

MSHA's accident investigation report was issued on May 24, 2000. The report
concluded:
The cause of the accident was management' s failure to clear the material drop
area of personnel. The root cause was the attempt to remove the decking and the
unsecured dust bin with a single pull. This allowed the dust bin to separate from
the decking and fall in an uncontrolled fashion.
(Emphasis added) (Gov. Ex. 2, .p.4).
Ronald Dokell testified as a demolition expert on behalf of Philip. Dokell was employed
from 1957 until 1996 by Olshan Demolishing Company, a company with domestic and
international operations located in Houston, Texas. During his tenure with Olshan, Dokell's
duties included serving as a site supervisor on hundreds of demolition projects and a general
supervisor overseeing several demolition projects at multiple job sites. (Resp. Ex. 1; Tr. 190-92,
197). He ultimately became President of the corporation. Dokell was also a past president of the
National Demolition Association. (Tr. 192).
·
Dokell stated the cut and pull process was a common method of demolition. (Ir. 20203). Dokell was responsible for determining the parameters of many drop zones during his
professional career. (Tr. 195). He described the process of establishing a drop zone as a
"simple" rather than a "scientific calculation." (Tr. 195). Dokell testified that the adequacy of a
drop zone depends on the size of the structure being demolished by the cut and pull procedure.
(Tr. 208). Dokell opined that, given the effect of gravity, ordinarily the length of a drop zone
should be twice the depth of the structure being pulled.. (Tr. 209-10). Dokell explained:
Well, basically .. . a drop zone is . . . a place for the material you're going to cut
and pull to drop. Now, where do things go when you cut them and pull them?
And the answer, which we can't avoid because - - as gravity- - it is straight down.
When you pull something, once you've got it past the 50 percent point, it comes
down.
The cable, which is attached to the excavator and runs taut because it's .pulling- but the cable itself has no hydraulic power. It's just a piece of steel that' s pulled
tight. When you pull the piece of steel tight, you pull what you've attached it to.
As soon as it - - the part you're pulling, which is this, has become past the point of
50 percent, it falls and the cable, of course, becomes loose. It no longer is doing
anything. It just falls down. And you'll disattach [sic] your cables, cut up the
steel on the ground that you've just pulled down, and start on the next piece. And
this is standard cut and pull procedure.
(Tr. 205-06).

28 EMSHRC 390

Given the fact that the seventh floor section of Building 70 to be pulled was 24 feet deep,
Dokell opined that industry standards required a drop zone of25 feet wide and 48 to 50 feet
long.4 (Tr. 213-14). Dokell opined that Philip' s drop zone of 48 feet was reasonable because it
was twice as long as the depth of the flooring being demolished. (Tr. 215). Based on his
experience, considering gravity, ordinarily he would expect the floor to fall within the first half
of the drop zone. (Tr. 209). However, Dokell' s calculation did not account for an·unsecured
dust collector.
Dokell conceded that it was reasonably foreseeable that an unsecured 5,000 pound dust
bin could become dislodged during demolition. In such an event, Dokell altered his drop zone
calculation by doubling the width to 50 feet and adding 50 percent to the original length resulting
in a revised 75 feet long drop zone as measured from the base of Building 70. (Tr. . 286, 317-18).
Dokell stated that there were no personnel in his hypothetically expanded 50 by 75 feet drop
zone. (Tr. 286). Dokell further conceded that his 50 feet by 75 feet parameter ''worse case
scenario" is based on the dust bin not hitting the steel cables before striking the ground.
(Tr. 308-09).
Significantly, Dokell' s testimony concerning a reasonably prudent drop zone of 50 by
75 feet given the circumstances in this case is flawed. Dokell opined that the probability of the
dust collector deflecting off of the taut cable was unforeseeable because the demolition crew
"thought [the dust collector] was not loose." (Tr. 309-10). However, there is no evidence to
suggest that the crew was unaware that the dust bin's mounting bolts bad been reinoved.
(Gov. Ex. 2, p.3; Gov. Exs. 16, 17, 21; Resp. Ex. 2; Tr. 66, 70-1, 143, 282). In fact, MSHA
determined that "it was probably normal operating procedures to cut the bolts." (Resp. Ex. 2).
Philip did not present testimony from any of its employees, and it did not otherwise proffer any
evidence concerning Philip' s demolition procedures. In the absence of evidence to the contrary,
it is reasonable to conclude that the mounting bolts bad been disconnected by the demolition
crew as part of their torch cutting procedures. (Tr. 289-90; 310).
Moreover, even Dokell's expanded ''worse case scenario" drop area is inadequate.
Dokell expanded the width of the drop zone by 25 feet, or 12Yz feet on each side. However, the
dust collector impacted the ground approximately 17 feet west of the building, 4Yz feet outside
Dokell's expanded drop area. (App. II; Tr. 175).
Accident investigation photographs reveal the steel cable was attached to the structure
directly in front of where the dust collector had been in the·opening in the seventh floor.
(Gov. Exs. 18-20). Graham testified that he "didn't see any way the [dust collector) could avoid"
the steel cable if it became dislodged from the seventh floor during demolition. (Tr. 171 ).

4

Dokell opined the width of the drop zone should be 25 feet because he believed the
section of flooring to be cut was 25 feet wide. (Tr. 214). In fact, MSHA determined the cut
section was 20 feet wide. (Gov. Ex. 2, p.2; Gov. Ex. 16, pp.1-2). Thus, using Dokell's
calculations, under normal circumstances, the drop zone should have been 20 feet by 48 feet.
28 FMSHRC 391

Dokell conceded that, after the dust bin hit the taut steel cable, "[y]ou really don't know
where it's going to end up." (Tr. 316). However, Dokell maintained it was not reasonably
foreseeable that the dust bin would roll a distance of 120 feet. (Tr. 319). In the final analysis,
Dokell agreed it would have been prudent to remove the unsecured dust bin separately prior to
dropping the seventh floor. (Tr. 221, 227, 232-33, 276-77).
The Secretary has not specifically set forth what she believes are the appropriate
dimensions of the drop zone in this case. Graham testified that establishirig a drop zone is a
dynamic process that dej>ends on the unique circumstances of each pull. As noted, he opined that
once the seventh floor became hung causing the dust bin to list forward, it was likely the dust bin
would hit the cable in the event it became dislodged. (Tr. 170-71 ). fu such an event, even
Dokell conceded the path of the dust collector was unpredictable. (Tr. 316). It is in this context
that Inspector Graham testified, "[i]f a piece of material or debris could come off this building
and strike somebody, then the drop area would not be cleared." (Tr. 92). Gauthier apparently
fled his initial location ib an attempt to seek sanctuary in the vicinity behind the excavator when
he was struck by the duSt bin. (Tr. 96, 119-132). Consequently, Graham believed the drop zone
in this case included Gauthier's initial location at the side of the building. (Tr. 120).

ID. Further Findines and·Conclusions
Citation No. 7894001 alleges a violation of the mandatory safefy standard in section
56.16010. The citation stated:
On January 21, 2000, a shift supervisor was fatally injured when he was crushed
by a dust collector that fell from the 'Jilt floor of a building being demolished. The
victim was standing several feet away from a track-mounted backhoe that was
attached to a wire rope being used to pull down the seventh floor. The drop area
was not first cleared of personnel prior to dropping the floor.
(Gov. Ex. 4).
Section 56.16010 of the Secretary's regulations provides:
To protect personnel, material shall not be dropped from an overhead elevation
until the drop area is first cleared ofpersonnel and the area is then either guarded
or a suitable warning is given.
(Emphasis added).

As a general matter, the Secretary does not contend that the basis for the alleged violation
of section 56.16010 is Philip's failure to either guard the general area or to provide a suitable
warning. Rather, the Seeretary maintains the cited standard was violated because Philip did not
first clear the drop area of personnel.

28 FMSHRC 392

a. Applicability of the Standard
As a threshold matter, Philip argues that the mandatory safety standard in section
56.16010 is inapplicable to demolition because the regulation "contemplates dropping materials
from an overhead elevation, not the demolition of a structure." (Emphasis in original). (Philip
post-hrg. br. at p .4). Philip first argued that section 56.16010 is inapplicable in its post-hearing
brief Consequently, the Secretary did not have the opportunity to present evidence on this issue
at the hearing. In her post-hearing response, the Secretary notes that Dokell, during his sworn ·
deposition testimony, readily agreed that the provisions of section 56.16010 applied to Philip' s
demolition activities. (Sec '.Y Resp. at p.5).

Notwithstanding Dokell's admission during deposition, ensuring that a suitable
"drop area" is unoccupied is virtually the only way of protecting personnel during demolition.
Thus, an adequate drop zone is an indispensable part of the demolition process. Philip's
assertion that the "drop area" provisions of section 56.16010 apply to dropping materials from
overhead rather than to demolition activities creates a distinction without a difference.
Moreover, Philip's assertion is belied by the testimony Philip elicited from Dokell at the hearing:
Counsel: Were you responsible for the calculation or configuiation of drop areas
or drop zones in the demolition activities that you supervised.
Dokell: I've approved many of them, yes, sir.
(Tr. 195).
Without belaboring this question, the relevant definition for the operative term "drop"
is "a sudden fall." Webster 's New World Dictionary, 428 (Second College Edition 1980).
Failing material necessarily must originate from overhead. A sudden fall is·the goal of
demolition. Accordingly, Philip' s contention that section 56.16010 should be narrowly
construed to exclude demolition from sites where material is "dropped from an overhead
elevation" is lacking in merit and must be rejected.
b. Intezpretation of the Standard
Where the language of a regulatory provision is clear, the tenns of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning, or, unless such a meaning would lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light co., 11 FMSHRC 1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). The tenns of section 56.16010
are ambiguous in that the methodology for determining the parameters of a drop area is not
defined.
·
·

28 FMSHRC 393

If a regulatory standard is ambiguous, the analysis shifts to whether the Secretary's
interpretation is reasonable. See Energy West Mining Co. v. FMSHRC, 40F.3D 457, 463
(D.C. Cir. 1994); accord Sec'y ofLabor v. Western Fuels-Utah, Inc. , 900 F .2d 318, 321
(D.C. Cir. 1990) ("agency's interpretation of its own regulation is 'of controlling weight unless it
is plainly erroneous or inconsistent with the regulation,,,) (quoting Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, 414 (1945)) (other citations omitted). Philip contends the Secretary's
interpretation of section 56.16010 is unreasonable because the Secretary's position is that the
dimensions of the drop zone can only be determined after demolition occurs.
The Secretary's interpretation of her regulations is reasonable where it is "logically
consistent with the language of the regulatioil[s] and . .. serves a permissible regulatory
function." General Elec. Co. v. EPA, 53 F.3D 1324, 1327 (D.C. Cir. 1995) (citations omitted).
Additionally, a regulation must be interpreted so as to harmonize with the objective ifseeks to
implement. See Emery Mining Corp. ·v. Sec'y ofLabor, 744 F .2d 1411, 1414 (10th Cir. 1984)
(citation omitted).
Section 56.16010 requires a demolition contractor to establish an adequate drop zone
without the guidance or pre-approval of the Secretary. Although the parameters of a ~P area
are not defined in the regulation, application ofthe standard requires consideration of the unique
circumstances surrounding each demolition project. The Secretary's role under section 56.16010
is limited to determining whether the drop zone established by the demolition contractor is
adequate under the circumstances, i.e., whether a suitable area was first cleared of personnel.
Thus, the Secretary has not delineated what she believes are the outer perimeters of the drop zone
in this case, noris she required to do so. The Secretary's interpretation of section 56.16010 is
that it only requires her to demonstrate that, at the time of demolition, the drop area was not
cleared because personnel were exposed to falling debris. (Tr. 92). This interpretation is
reasonable in that it furthers the obvious regulatory concern of promoting the safety of
demolition crews.
c. Fact of Violation
Philip's attempt to remove the unsecured dust bin and flooring with a single pull, rather
than removing the dust bin separately, allowed the dust bin to fall in an unpredictable and
uncontrollable manner. As Dokell stated, "[y]ou really don' t know where [the dust bin is] going
to end up." {Tr. 316). Since the path of the dislodged dust bin was unpredictable, the drop zone
must encompass a broader area to account for the uncertainty. However, Philip relied on a
standard drop zone of approximately 20 by 48 feet. Having failed to significantly expand the
drop zone, Philip put its employees at risk.

If an employee is exposed to the hazard of being struck by debris, he is in the drop zone.
The impact point of the dust bin, only 12Yl feet from where Gauthier was standing, reflects that
Gauthier was exposed to danger. Thus, the Secretary has demonstrated that the drop area was

28 FMSHRC 394

not first cleared of personnel prior to the drop. s Consequently, the Secretary has demonstrated
that a violation of section 56.16010 occurred.
The violation was designated as significant and substantial. The Commission has
explained an S&S finding requires the Secretary to 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.,
Inc., 6 FMSHRC 1834, 1836 (August 1984). The Commission has also emphasized it is the
contribution of a violation to the cause and effect of a hazard that must be significant and
substantial. Id. at 1868. The Commission subsequently reasserted its prior determinations that
as part of any "S&S" finding, the Secretary must prove the reasonable likelihood of an injury
occurring as a result of the hazard contributed to by the cited violative condition or practice.
Peabody Coal Company, 11 FMSHRC 508, 510-11 (April 1995); Jim Walter Resoµrces, Inc. ,
18 FMSHRC 508, 510-11 (April 1996). Here the violation was properly designated as
significant and substantial as the violation resulted in a hazard, i.e, exposure to falling debris, that
caused a fatality.
With respect to negligence, even Philip's expert agreed that it would have been prudent to
remove the unsecured dust bin separately before attempting to briitg down the seventh floor with
a single pull. Consequently, Philip's loss of control of the demolition area is attributable to a
high degree of negligence.
d. Secretaiy's Attempted Citation Modification
Having determined Gauthier's presence in a drop area provides the basis for the section
56.16010 violation, for the first time, at the hearing, the Secretary alleged Croniser was also in
the drop zone. Croniser was in the operator's cab approximately 80 feet south of the base
of Building 70 when the attempted pull was made. (Gov. Ex. 2, p.3). Neither Citation
No. 7894001 nor MSHA's accident investigation alleges that Croniser was in the drop zone at
the time of the accident. Significantly, section lO(d) of Citation No. 7894001 designates the
number of persons affected as "001."
I construe the Secretary's belated assertion that Croniser was in the drop area as an
attempt to modify Citation No. 7894001. Although there is no provision in the Commission's
Rules for amending citations, as a general proposition, modifications to citations should be
liberally granted unless there is a "legally recognizable prejudice to the operator [that] would bar
[an] otherwise·pennissible modification." Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (August
1992); Cyprus Empire Corp., 12 FMSHRC 911(May1990).

s It is noteworthy that Gauthier was located only 29Yz feet west of the building although
Croniser had positioned himself 100 feet west of the building during Gauthier's attempted pull.
(Gov. Ex. 16; App. Il).
28 FMSHRC 395

It is undisputed that the cut and pull method is a common demolition practice. There is
nothing in the record to demonstrate that the termination of Citation No. 7894001 required
modification of Philip' s cut and pull methodology with respect to cable length or the location of
the excavator. Nor was any evidence proffered to establish that the position of the excavator on
January 21, 2000, was contrary to industry standards. The Secretary's belated attempt to modify
Citation No. 7894001 to include Croniser as a person affected precluded Philip's pre-trial
discovery and preparation on the issue of proper excavator positioning dqring cut and pull
demolition. Consequently, I find the attempted modification to be prejudicial. Therefore, I will
not address whether Croniser was in the drop area at the time of the accident.
e. Constitutionaliif
Finally, even ifthe evidence supports the fact of a violation of section 56.160l0, Philip
asserts that Citation No. 7894001 must be v~ted because section 56.16010, as it applies to
demolition, is unconstitutionally vague. In this regard, Philip asserts that the cited standard does
not provide a fair and reasonable warning of the conduct it prohibits or requires because the
Secretary is calculating the drop zone after demolition occurs.
·
Philip's reliance on a purported responsibility of the Secretary to articulate where a drop
zone begins and ends is trusplaced. The provisions of section 56.16010 iriipose no such duty on
the Secretary. As previously noted, demolition contractors establish drop zones l;>ased on the
unique circumstances of each.demolition project without the Secretary's pre-approval. Thus,
section 56.16010 does not require the Secretary to delineate the outer periineters of a drop zone.
Rather, section 56.16010 only requires the Secretary to demonstrate that the drop area was ·not
first cleared of personnel.
To prevent exposure to the hazard of being struck by debris, the Secretary has fashioned
section 56.16010, the terms of which are "simple and briefin order to be broadly adaptable to a
myriad of circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981);
Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December 1992). However, broadly
written mandatory safety standards must provide fair notice of what is required. U.S. Steel
Corp., 5 FMSHRC 3, 4 (January 1983).
6

The hearing was held on February 7, 2006. Following the hearing, on February 21,
2006, Philip filed a SupP,lemental Answer to the Petition for Assessment of Civil Penalty seeking
to argue that section 56.16010 is-unconstitutionally vague. On February 27, 2006, the Secretary
filed a Motion to Strike Philip's Supplemental Answer as untimely. Philip replied to the
Secretary's Motion to Sttike on March 10, 2006. The Secretary's Motion to Strike was denied
during a March 21, 2006, telephone conference. At that time I advised the parties that I would
permit the constitutional issue to be presented in Philip's post-hearing brief, and I would
establish a briefing schedule for the Secretary's response brief and Philip' s reply. The
Secretary's response brief was filed by facsimile on June 2, 2006. Philip's reply was filed
by facsimile on June 20, 2006.
28 FMSHRC 396

The Commission addressed the issue of "fair notice" in Higman Sand & Gravel, Inc.,
24 FMSHRC 87 (January 2002). The Commission stated:

In "order to afford adequate notice and pass constitutional muster, a mandatory
safety standard cannot be ' so incomplete, vague, indefinite, or uncertain that
[persons] of common intelligence must necessarily guess at its meaning and differ
as to its application"' Ideal Cement Co., 12 FMSHRC 2409, 2416 (November
1990)(citation omitted). A standard must "give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act
accordingly." Lanham Coal Co., 13 FMSHRC 1341, 1343, (September 1991).
When faced with a challenge that a safety standard failed to
provide adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the reasonably
prudent person test. The Commission recently summarized this
test as ''whether a reasonably prudent person familiar with the
mining industry and the protective pmposes of the standard would
have recognized the specific prohibition or requirement of the
standard."

Id. (citations omitted). To put it another way, a safety standard cannot be
construed to mean what the Secretary intended but did not adequately express.
"The Secretary, as enforcer of the Act, has the responsibility to state with
ascertainable certainty what is meant by the standard [she] has promulgated."
Diamond Roofing Co. v. OSHRC, 528 F.2D 645, 649, (5th Cir. 1976).
.
24 FMSHRC at 89-90.
Applying the "reasonably prudent person" test, it is obvious that section 56.16010 seeks
to effectuate the protective purposes of a drop·zone. To achieve this goal, it reasonably can be
inferred that section 56.16010 requires control of the force and direction of debris from the
structure to be demolished because that is the only means by which an adequate drop zone can be
established. In other words, section 56.16010 requires a controlled drop.
Both MSHA and Philip's demolition expert agree that Philip' s failure to separately
remove the dust collector caused it to fall in an uncontrolled manner. (Gov. Ex. 2, p .4; Tr. 221,
227, 232-33, 276-77, 316). Having forsaken control for the apparent sake of the expediency of a
single pull, Philip finds itself in the unenviable positioi:i of arguing that th~ li.ncertainty it created
renders the standard unconstitutionally vague. Such an argument must be rejected.

28 FMSHRC 397

Rather, a reasonably prudent person familiar with demolition would recognize that, given
the uncertainties, ·Philip;s reliance on the traditional drop zone calculation of the width ot: and
double the depth of, the structure being pulled was grossly inadequate. Even Dokell's expanded
hypothetical drop zone was inadequate as Dokell failed to appreciate the distance the unsecured
dust bin would travel. Obviously, Philip knew or should have known that establishment of an
inadequate drop zone does not satisfy the requirements of section 56.16010.

As Inspector Gniliam stated, the provisions of section 56.16010 are violated "[i]f a piece
of material or debris could come off this building and strike somebody [because] then the drop
area would not be cleared." (Tr. 92). In the final analysis, it was reasonably foreseeable
that the traditional drop zone should have been extended to include clearance ofpersonnel
from the general area impacted by the dust bin. Philip cannot credibly rely on a lack of
notice as an excuse for its failure to ensure that a suitable drop area was kept free of personnel.
Consequently, Philip has failed to demonstrate that section 56.16010 is unconstitutionally vague
as applied by the Secretary in this case. Accordingly, Citation No. 7894001 shall be affirmed.
f. Civil Penalty
The Secretary has proposed a·civil penalty of$15,000.00 for Citation No. 7894001.
Commission judges assess penalties de novo and are authorized to reduce or increase the penalty
proposed by the Secretary as circumstances warrant. Topper Coal Co., 20 FMSHRC 344, 350
n.8 (April 1998); Sellersburg Stone Co., 5 FMSHRC 287, 291 (March 1983), aff'd 736 F.2d
1147 (7th Cir. 1984). In determining the appropriate civil penalty, Commission Rule 30,
29 C.F.R. § 2700.30, requires the judge to consider the statutory criteria set forth in 1 lO(i)
of the Mine Act, 30 U.S.C. § 820(i). In determining the appropriate civil penalty, section 1 lO(i)
provides, in pertinent part:
the Commission shall consider the operator's history of previous
violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good
faith of the p erson charged in attempting to achieve rapid
compliance after notification of a violation.

i. Size of Qperator and Ability to Remain in Business
A Final Decree in Philip' s reorganization plan under Chapter 11 of the United States
Bankruptcy Code was entered on April 7, 2005. Bankr. S.D . Tex., Case No. 03-37718-H2-1 l.
There is no evidence that Philip is currently relieved from debt due to its bankruptcy filing.
Philip is a moderately sized contractor, and it does not contend that imposition of the proposed
$15,000.00 civil penalty in this matter will adversely impact its continuing business operations.
(Tr. 19; Gov. Ex. 1, p.2).

28 FMSHRC 398

ii. Negligence
With respect to negligence, the high degree of negligence attributed to Philip is amply
supported by the record. Loss of control in demolition is a grave concern. In this regar~ Philip' s
expert Dokell expressed disbelief that Philip would have disregarded the hazard associated with
an unsecured dust bin if Philip knew the dust collector was "loose." (Tr. 309-10). However, the
evidence reflects Philip knew or should have known that the dust collector was not secured. The
negligence associated with a failure to ensure the drop area was fust cleared of personnel, given
the lll1predictability of the path of the·dust bin, was conuiritted by Philip management personnel
and is properly imputed to Philip. U.S. Coal, Inc., 17 .FMSHRC 1684, 1686 (October 1995)
(Citations omitted).
iii. Gravity
The gravity penalty criterion contained in section 11 O(i) requires an evaluation of the
seriousness of the violation. Hubb Corporation, 22 FMSHRC 606, 609 (May 2000) citing
Consolidation Coal Co., 18 FMSHRC 1541, 1549(September1996); Sellersburg, 5 FMSHRC at
294-95. In evaluating the seriousness of a violation, the Commission focuses on ''the affect of a
hazard if it occurs." Consolidation Coal Co., 18 FMSHRC at 1550. Here, failing to ensure that
the drop zone was clear of personnel exposed an employee to the hazard of falling debris that
resulted in his death. Consequently, the violation is indicative of extremely.serious gravity.
iv. Histozy of Previous Violations
The Secretary does not assert that Philip has a relevant history of previous violations that
would impact on the appropriate penalty to be assessed in this matter.
v. Good Faith Efforts at Abatement
Philip has precluded the possibility of a similar accident by providing proper training and
it has modified its demolition practices in recognition of the hazards caused by unsecured
structures during the demolition process.
On balance, there are no significant mitigating factors to warrant reduction of the civil
penalty proposed by the Secretary. In view of the high degree of negligence and serious gravity,
I conclude that the Secretary' s proposed civil penalty is appropriate. Accordingly, a civil penalty
of$15,000.00 shall be imposed for the violation of section 56.16010 cited in Citation
No. 7894001.

28 FMSHRC 399

ORDER
Accordingly, IT IS ORDERED that, pursuant to the parties' agreement,
Citation No. 7884114 in Docket No. CENT 2000-294-M IS VACATED. Consequently,
Docket No. CENT 2000-294-M IS DISMISSED.
IT IS FURTHER ORDERED that Citation No. 7894001 in Docket No.CENT 2003-26-M IS AFFIRMED. ·
IT IS FURTHER ORDERED that Philip Environmental Services shall pay a
civil penalty of$15,000.00 within 40 days of the date of this decision in satisfaction of
Citation No. 7894001. Upon timely payment ofthC! $15,000.00 civil penalty, Docket No.
CENT 2003-26-M IS DISMISSED.
.

Jerold Feldman
Administrative Law Judge·
Distribution: (Certified Mail)
Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of Labor,
525 South Griffin Street, Suite 501, Dallas, TX 75202
Steven R Mccown, Esq., Littler Mendelson, 2001 Ross Avenue, Suite 2600, .
Lock Box 116, Dallas, 'fX 75201
/mh

28 FMSHRC 400

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APPENDIX II

28 FMSHRC 402

comments
I

0 <g~'f~ "

ADMINISTRATIVE LAW JUDGE ORDERs

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, O.C. 20001

May2, 2006
CNILPENALTYPROCEEDINGS

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

Docket No. WEST 2005-403-M
A.C. No. 45-03455-58446

v.
WASHINGTON ROCK QUARRIES, INC.,
Respondent

King Creek Pit
'

ORDER GRANTING IN PART AND DENYING IN PART
MOTIONTOCOMPELDIBCOVERY
Jn this civil penalty proceeding, the Secretary of Labor, on behalf of her Mine Safety and
Health Administration, petitions for the assessment of a civil penalty of $625.00 against
Washington Rock Quarries, Inc. (WRQ). The Secretary alleges the company violated a
mandatory safety standard, 30 C.F .R. § 56.3130, at its King Creek Pit when it failed to employ
mining methods suitable to maintaining the stability of a high wall at the pit. WRQ denies the
violation, as well as Secretarial allegations regarding the gravity of the violation, the violation's
significant and substantial nature and the ,alleged negligence of the company. A hearing was
scheduled to begin on May 10, 2006. On April 19, 2006, at the joint request of counsels, it was
rescheduled to begin on August 15, 2006. The order rescheduling the hearing stated in part, "All
discovery in this matter shall be completed on or before July 17, 2006." (Order Rescheduling
Hearing and Discovery (April 19, 2006)). 1
The pretrial preparations of the parties have been dogged by various discovery disputes,
some of which are ongoing. In the most recent dispute, Counsel for the Secretary moves to
compel WRQ to take certain specific actions. Counsel wants the company to supplement its
answer to one of the Secretary's interrogatories, to make its proposed expert witness available for
deposition on one of three specified dates, and to produce docmnents referenced in the expert's
report.
For the reasons set forth below, counsel for the Secretary's motion is GRANTED IN
PART and DENIED IN PART.

Previously, discovery was ordered to be completed by April I 0, 2006, but the
deadline was waived to allow the Respondent to depose two persons the Secretary listed as
possible witnesses, an MSHA inspector and an expert witness. See Order Granting Motion to
Permit Discovery (April 6, 2006).
28 FMSHRC 403

The Motion As It Relates To The Secretary's Interr91atory

In Interrogatory No. 5, the Secretary asks WRQ to "identify . . . all individuals you intend
to call as a witness at the hearing'' and to provide "a detailed summary of each individual's
anticipated testimony." See's Mot. to Comp. Disc., Exh. 1at2. The Secretatymoves that WRQ
be required to answer separately and fully this interrogatory. The request is based upon that fact
that although WRQ has identified four individuals it may call as witnesses[2] it has not, in the
Secretary's view, adequately summarized their anticipated testimony.
In describing the anticipated testimony, the company has stated that one of the individuals
"may testify about [WRQ's] mining methods and training, prior MSHA inspections, and other
facts and circumstances relevant to the citation at issue," and that the other three ~y testify to
these matters as well as to "conversation[s] with the MSHA inpsector." See's Mot. to Comp.
Disc. 7.

Counsel for the Secretary notes that Commission Rule 58 places WRQ under an
obligation to answer the interrogatory "separately and fully." 29 C.F. R. §2700.58(a). Counsel
complains that the answers given are so general that without supplemental answers it will be
necessary to depose the four witnesses. However, with appropriately supplemented answers, all
parties may be saved the expense and time of depositions. See's Mot. to Comp. Disc. 2-3.
Counsel for WRQ responds that it has not yet decided whom it intends to call as a
witness; nor has it determined what testimony will be elicited. ''Nevertheless, in an attempt to
provide full disclosure, [WRQ has] provided [the Secretary] with the universe of persons that
[WRQ] might call and [has] described as best.it could what might be their testimony." Resp.
Mot. to Comp. Disc. 2. In doing so, WRQ maintains it has complied with the interrogatory and
that it "cannot provide information that it does not have." Id.
Ruline

Counsel for the Secretary's interrogatory requesting the name and contact information of
those individuals WRQ intends to call as witnesses, is a proper interrogatory, and counsel for
WRQ's response providing the names and contact information of four persons, all or any of
whom it might call, is a proper response. In answering, WRQ has identified its possible
witnesses. Given this response, WRQ may not call witnesses outside the universe of named
persons without good cause shown, and without counsel for the Secretary having full opportunity
to depose such additional witness or witnesses. 3
2

The individuals are Harry Hart, Lance Precour, Al Evans and Gordon Trolley.
See's Mot. to Compel Disc., Exh. 1.
3

As noted previously, under the revised hearing schedule, discovery in th.is matter
must be completed by July 17, 2006. This means that absent extraordinary circumstances and
28 FMSHRC 404

In response to th~ interrogatory' s request to provide a "detailed summary of each
individual's anticipated testimony," WRQ has provided only the most general infonnation
regarding the subject areas about which the individuals may testify. The answers may reflect the
state of the WRQ's case preparation at this point. However, the answers are so broad as to
provide the Secretary with little or no knowledge of how to adequately prepare for the
individuals' possible testimony. Therefore, within 20 days of the date of this order, WRQ IS
ORDERED to supplement its answers to the interrogatory by summarizing the testimony the
witnesses might give and by identifying the key facts about which the witnesses if called may
testify.
Upon receiving the supplemental answers, counsel for the Secretary should promptly
decide whether or not he wishes to depose the named individuals. If he believes depositions are
in order, he and counsel for WRQ must together act to ensure the depositions are completed on
or before July 17, 2006.

Motion As It Relates to WRO's Expert Witness
The Secretary moves that WRQ be ordered to make its expert witness, Stephen Dmytriw,
available for deposition on May 8, 9 or 10, 2006. See's Mot. to Comp. Disc. 4-5. The Secretary
states that the deposition previously was scheduled to take place on May 10, but that counsel for
WRQ recently stated he is not available on May 10 and that he does not know when Mr.
Dmytriw will be available for deposition. Id. 4.

for good cause shown all depositions must be completed by that date.

28 FMSHRC 405

Ru line

The motion is ·DENIED. Counsels are experienced and able. They have a duty to
cooperate with one another and with the judge to insure a just result. Asking the judge to
micromanage a matter they should be able to agree upon is demeaning to themselves and to their
clients. There is more than adequate time between now and the conclusion of discovery for
counsels to find a mutually acceptable date for the deposition of Mr. Dmytriw. Therefore, within
ten days of the date of this order, Counsels ARE ORDERED to confer and to agree upon a date
and time when the deposition can be taken. (If counsels are unable to agree, I will set an
atbitrary date, time and place.) 4

_J)~,'t1fd~
DavidF.Barbour
AdminiStrative Law Judge ·

·

(202) 434-9980

Distribution: (Certified Mail and by Facsimile)
Bruce L. Brown, Esq., U.S. Department of Labor, Office of the Solicitor, 1111 third Avenue,
Suite 945, Seattle, WA 98101-3212
Paul M. Nordsletten, Esq., Davis Grimm Payne & Marra, 701 Fifth Avenue, Suite 4040, Seattle,
WA98104
/ej

4

Counsel for the Secretary also requests WRQ be ordered to provide copies of
documents referenced in Mr. Dmytriw's expert report. See's Mot. to Comp. Disc. 3. Counsel for
WRQ replies that the documents have since been provided and the issue is moot. Resp. to Mot.
to Comp. Disc. 3-4. Counsel for wRQ is taken at his word. The part of the motion requesting
an order requiring the delivery of specified documents IS DENIED.
28 FMSHRC 406

FE-DERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

May4,2006
COMPENSATION PROCEEDING

UNITED MINE WORKERS OF
AMERIC~ LOCAL 1248,
Complainant

Docket No. PENN 2002-23-C

v.
Maple Creek Mine
Mine ID 36-00970

MAPLE CREEK MINING, INC.,
Respondent

ORDER DENYING RESPONDENT'S
MOTION FOR SUMMARY DECISION
This case is before me on a complaint filed pursuant to section 111 of the Mine Safety
and Health Act of 1977 ("Act'), 30 U.S.C. § 821. The United Mine Workers of Americ~ Local
1248 (''UMWA"), seeks compensation for miners idled by an order issued by the Secretary of
Labor's Mine Safety and Health Administration ("MSHA) requiring the withdrawal of miners
from the Maple Creek Mine. The complaint was later amended to assert claims by miners who
worked at Maple Creek's preparation plant who also were allegedly idled by the same order. 1
Respondent has moyed for summary decision, and the UMWA has opposed the motion. As
explained more fully befow, the motion is denied.
The Issue to be Resolved.
Miners typically are not paid if they do not work. MSHA enforcement actions that result
in closing all or part of a mine can, therefore, have a significant economic impact on both the
mine operator and any miners idled by the enforcement action. Section 111 of the Act provides
limited relief to miners under certain conditions.2 The first two sentences of the section provide

1

Complainants' motion to amend the complaint was granted by order dated
February 20, 2002. Respondent's motion to reconsider was denied by order dated October 5,
2005.
2

Section 111 reads, in pertinent part:

If a coal or other mine or area of such mine is closed by an order issued under
section [103], section [104], or section [107], all miners working dbring the shift
when such order \vas issued who are idled by such order shall be entitled,
regardless of the result of any review of such order, to full compensation by the
28 FMSHRC 407

less than one shift's pay for miners idled by certain closure orders. That limited compensation is
available regardless of the result of any review of such orders.
The third sentence of the section, upon which the instant claim is based, provides for up
to one week's compensation for miners idled by orders entered under sections 104 or 107 of the
Act, because of an operator's failure to comply with any mandatory health or safety standar~ but
only "after all interested parties are given an opportunity for a public hearing, ... and such
order is final." The complaint here seeks compensation for miners idled by Order No. 7060223,
which was issued pursuant to section l 04(b) of the Act.
Maple Creek contends that Order No. 7060223 was later vacated in conjunction with
settlement of a civil penalty proceeding and, consequently, that no compensation is _available
under the third sentence of section 111. The UMWA argues that compensation is due because
the miners were, in fact, idled by the order an~ since Maple Creek paid a civil penalty for the
underlying citation, its culpability for the alleged violation has been conclusively established.
The issue presented by the motion is whether Order No. 7060223 is "final" within the meaning of
section 111. For the reasons set forth below; I find that the order was final and deny Maple
Creek's motion.

On July 30, 2001, at 10:35 a.m ., an MSHA inspector found that the bleeder system was
not effectively ventilating a section ofMaple Creek's mine, and issued Order No. 7082156, an
"imminent danger" withdrawal order, pursuant to section 107(a) of the Act.3 The order noted
that Citation No. 7082157, alleging a violation of30 C.F.R. § 75-334(b)(l), would be issued for
management practices that resulted in the condition. Citation No. 7082157 was issued at the

operator at their regular rates of pay for the period they are idled, but for not more
than the balance of such shift. If such order is not terminated prior to the next
working shift, all miners on that shift who are idled by such order shall be entitled
to full compensation by the operator at their regular rates of pay for the period
they are idled, but not for more than four hours of such shift. If a coal or other
mine or area of such mine is closed by an order issued under section [104] or
section [ 107] for a failure of the operator to comply with any mandatory health or
safety standards, all miners who are idled by such order shall be fully
compensated after all interested parties are given an opportunity for a public
hearing, which shall be expedited in such cases, and after such order is final, l>y
the operator for lost time at their regular rates of pay for such time as the miners
are idled by such closing, or for one week, whichever is the lesser.... [30 U.S.C.
§ 821].
3

A copy of Order No. 7082156 is attached as Exhibit l to Respondent's reply
·
memorandum in support of its motion.
28 FMSHRC 408

same time as the order and alleged a violation of the subject regulation, which requires that the
bleeder system "continuously dilute and move methane-air mixtures and other gases, dusts, and
fumes from the worked-out area away from active workings.'>4 While the "Condition or
Practice" section of the citation stated that no abatement time was set, the citation included a
notation that termination was due the following day by 2330, 11 :30 p .in. MSHA conducted a
ventilation survey of the mine the following day. As a result of that survey, Order No. 7082156
was terminated at 1:00 p.m. on July 31, 2001, by a different inspector. Further modifications to
Order No. 7082156 and Citation No. 7082157 were made on January 4, 2002, eliminating
language stating that the violation cited in the citation was a contributing factor to the condition
prompting the imminent danger order.
The inspector who had issued the order and citation also returned to the mine on July 31,
2001, and found that virtually no steps had been taken to abate the violation alleged iii the
citation. At 4: 10 p.m., he issued Order No. 7060223 pursuant to section 104(b) of the Act, based
upon his conclusion that Maple Creek had expended "little or no effort'; to correct the cited
condition.s The 104(b) ~rder required that all miners be withdrawn from the "5 West longwall
section and the 5 West, 6 West and 7 West bleeder system." The order was modified on August
2 to allow some power to be restored to the area, but no mining of coal was permitted. On
August 4 the modification was rescinded, and the order was reinstated in its original form. The
order was allegedly terniinated on August 7, 2001, and mining operations were permitted to
resume.
On February 25, 2002, MSHA issued proposed civil penalty assessments for various
citations and orders issued to Maple Creek, including Citation No. 70S2157, for which a penalty
of $9,000.00 was proposed. Maple Creek contested that and other proposed penalties on March

4

A copy of Citation No. 7082157 is attached as Exhibit 2 to Respondent's reply
memorandum in support of its motion.
s A copy of Order No. 7060223 is attached as Exhibit B to Compiainant' s opposition to
the motion. Section 104(b) of the Act. provides, in pertinent part:
(b) If, upon any follow-up inspection of a coal or other mine, and authorized
representative of the Secretary finds (1) that a violation described in a citation
issued pursuant to subsection (a) has not been totally abated within the period of
time as originally fixed therein or as subsequently extended, and (2) that the
period of time for the abatement should not be further extended, he shall
detennine the extent of the area affected by the violation ans shall promptly issue
an order requiring the operator or such mine or his agent to immediately cause all
persons, except those persons referred to in subsection (c), to be withdrawn from,
and to be prohibited from entering, such area until an authorized representative of
the Secretary determines that such violation has been abated. [30 U.S.C.
§ 814(b)].

28 FMSHRC 409

18, 2002. On May 3, 2002, the Secretary filed with the Commission a Petition for Assessment of
Civil Penalties against Maple Creek, Commission Docket No. PENN 2002-116, which sought
the imposition of civil.penalties in the total amount of $36,853.00, for12 alleged violations of the
Secretary's regulations prescribing mandatory safety standards for underground coal mines.6
Among the enforcement actions at issue was Citation No. 7082157.
The petition in PENN 2002-116 was served on Maple Creek and Local Union 1248 of the
UMWA By letter dated June 19, 2002, the UMWA sought and was granted party status in that
case, presumably to protect its members' interests in the instant compensation claim.7 On July
29, 2003, the Secretary filed a Motion for Decision and Order Approving Partial Settlement,
which sought Commission approval of a settlement of all but one of the violations at issue.8
Among the violations settled was Citation No. 7082157. The motion described the_citation and
added the following discussion:
··
A§ 104(b) Order Number 7060223 was issued on July 31, 2003 [sic], for
the Respondent's failure to correct the condition cited in Citation Number
7082157. A penalty of $9,000.00 was specially assessed based on the high
negligence rating and the§ 104(b) Order.
After further discussions With the operator, the Secretary recommends that
the citation should remain classified as high negligence but Order Number
7060223 should be vacated. While the negligence is still high, the parties submit
that it is somewhat less than initially determined. Respondent was unsuccessfully
attempting to correct the condition listed in Citation No. 7082157 at the time the
104(b) Order No. 7060223 was issued. Therefore, a reduction in the assessed
penalty to $2,000.00 is warranted.
Settlement Motion, at 2-3.
The UMWA was served with a copy of the motion, but did not file anything in response.
On August 11, 2003, a Decision Approving Partial Settlement was entered, granting the
Secretary's motion and approving the proposed reduction of the civil penalty assessed for
Citation No. 7082157.9

6

A copy of the petition, excluding citations not releverit here, is attached as Appendix 1,
to this order.
7

Copy attached as Appendix 2.

8

Copy attached as Exhibit 2 to Respondent's motion.

9

Copy attached as Exhibit 3 to Respondent's motion.
28 FMSHRC 410

Discussion
The complaint for compensation. as amended, seeks up to one week's compensation, plus
interest. for each miner idled by the issuance of Order No. 7060223, pursuant to section 111 of
the Act Based upon the representations in the Secretary' s motion in PpNN 2002-116, and the
fact that the motion was granted, Respondent argues that Order No. 7060223 was vacated, i.e.,
never became final, and cannot. therefore, form the basis for an award of up to one week's
compensation under section 111.
Section 111 stands apart from the interrelated structure for reviewing citations, orders and
penalties created by section 105. The purpose of section 111 is to detennine the compensation
due miners idled by certain withdrawal orders, not to provide operators With an additional avenue
for review of the validity of the Secretary's enforcement actions. Local Union 2333, District 29,
UMWA v. Ranger Fuel Corp., 12 FMSHRC 363, 370-71(March1990); Local Union 1810,
District 6, UMWA v. Nacco Mining Co.• 11 FMSHRC 1231, 1239 (July 1989). The Secretary is
a party in enforcement p,roceedings under section 105, whereas in compensation proceedings
under section 111, only the miners, or their representatives, and the operator are parties.
Consequently, the :finality of any order, or modification thereof, must be determined by reference
to the outcome of any relevant section 105 proceedings between the Secretary and the operator,
and a claim for compensation under the third sentence of section 111 cannot be adjudicated until
the subject order has beCome final under section 105.10

In Nacco Mining, the UMWA sought compensation for miners Idled by the modification
of a section 104(d)(2) withdrawal order. The order bad been issued on December 10, 1984,"but
was modified almost immediately and two other times, such that it did ilot result in the idling of
miners. On May 7, 1985, Nacco paid the civil penalty that bad been proposed for the violation
alleged in the order. However, the order had not been terminated beca~e the underlying
condition had not been completely abated. On October 2, 1986, 22 months after the order had
been issued, MSHA determined that no further time should be allowed to abate the violation, and
modified the order for the forth time, resulting in the idling of miners. Neither the operator, nor
the UMWA contested the issuance of the order or any of the modifications, including the one that
resulted in the idling of miners, and the operator had not contested the proposed civil penalty.
The Commission noted that since there was no new violation alleged in the critical modification,
no new penalty assessment was to be forthcoming, and held that ''because Nacco did not avail
itself of the opportunities to contest in a timely manner pursuant to section I 05 either the validity
of the section 104(d)(2) brder, or the penalty proposed for the violation. or the validity of any of
10

Proceedings in this case had been stayed pending resolution of enforcement
proceedings related to this case, and to a companion compensation proceeding between the same
parties. Motions for summary decision were filed by Respondent in both cases in February 2006.
The cases were reassigned to the undersigned Administrative Law Judge on April 5, 2006. An
order granting Respondent's motion in the companion case, Docket No. PENN 2002-24-C, was
entered this date.
28 FMSHRC 411

the subsequent modifications, it is precluded from raising such challenges" in this compensation
proceeding. 11 FMSHRC at 1240.
The Commission later held, in Ranger Fuel, that an imminent danger withdrawal order
issued pursuant to section 107(a) of the Act is "final and valid on its face for puri>oses of section
111 compensation proceedings" if not contested pursuant to section 107(eXI). 12 FMSHRC at
373; See also, Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773, 777 (D.C.Cir. 1990). The review
provisions of section 107(e)(l), which afford operators an opportunity to contest and request a
hearing on the validity of a section 107(a) order within 30 days of notification thereof: were
described as ''parallel to the section 105 scheme for contest and review of section I 04 citations
and orders and related penalty proposals." 12 FMSHRC at 371. Civil penalties are not typically
assessed for section 107(a) orders because they need not and typically do not alleg~_ violations.
Section 107(a) specifically provides that "issuance of an order under this subsection shall not
preclude the issuance of a citation under section I 04 or the proposing of a penalty under section
110." 30 U.S.C. § 817(a). The overriding purpose of an imminent danger order is the immediate
withdrawal of miners, and the investigation and identification of any llllderlying violations will
often be delayed lllltil long after the order was issued. Local Union 1889, District 17 UMWA v.
Westmoreland Coal Co., 8 FMSHRC 1317, 1327-28 (Sept. 1986).
As noted in Ranger Fuel and Nacco Mining, section 105 creates a comprehensive scheme

for contest and review of citations and orders issued pursuant to section 104 ·of the Act. Section
I 05(d) grants an operator the right to seek immediate review of a citation or order issued or
modified pursuant to section 104.11 Under section 105(a) an operatOr has a right to contest a
citation or order after a civil penalty has been assessed. Hence, for a citation or order that alleges
a violation, an operator will have two opportunities to challenge the enforcement action and
request a hearing. Immediate review can be sought pursuant to section 105(d), and review can
also be sought after the penalty is assessed under section 105(a). However, some orders,
including typically orders issued under sections 104(b) and 107(a) of the Act, do not usually
allege violations. Modifications of orders may also not allege a new violation. Under those
circumstances, there will be no opportunity to seek review under section 105(a), and an operator
wishing to contest the validity of the order or modification must exercise its right under section
105(d) to contest the issuance ormodification of the order, or the order will be deemed final for
purposes of section 111.
II

Section I 05(d) of the Act provides, in pertinent part:
If, within 30 days of receipt thereof, an operator of a coal or other mine

notifies the Secretary that he intends to contest the issuance ... of an order issued
under section 814 of this title, ... the Secretary shall immediately advise the
Commission of such notification, and the Commission shall afford an opportunity
for a hearing . .. and thereafter shall issue an order, based on findings of fact,
affirming, modifying, or vacating the Secretary's citation, order, or proposed
penalty, or directing other appropriate relief. ...
28 FMSHRC 412

Neither Maple Creek nor the UMWA claim to have contested the issuance of Order
No. 7060223, the sectioh 104(b) withdrawal order, and Commission records do not show
notification of any such contest. There was no new violation charged in the order and there was
no civil penalty assessed with respect to the order. While the settlement motion in PENN 2002116 discussed the order, neither the petition in that case, nor Maple Creek's answer or amended
and substituted answer Specifically mention Order No. 7060223.12 In desCribing Citation No.
7082157, which was issued on July 30, 2001, the ''Proposed Assessment," a copy of which was
attached to the petition, noted that the "Type ofAction" was "104A-104B/' and that the
Secretary had determined to specially assess a penalty of $9,000.00 for the alleged violation.
App. 1. Noting the fact that action under section 104(b) had also been taken with respect to the
citation, i.e., for failure of the operator to timely abate the violation, was entirely appropriate
bec~use "the demonstrated good faith of the person charged in attempting to achieve rapid
. compliance after notification of a violation" is one of the factors that the Commission:must
consider in fixing ~e amount of a civil penalty. 30 U.S.C. § 820(i). The Proposed Assessment
does not purport to propose a civil penalty for Order No. 7060223, which was issued on July 31,
2001 . The Decision Approving Partial Settlement did not mention Order No. 7060223. It simply
~pproved the settlement of the civil penalty fot Citation No. 7082157, which had been duly
contested by Maple Creek.

As noted in Westnioreland, section 111 is remedial in nature and was not intended by
Congress to be interpreted and applied narrowly. 8 FMSHRC at 1323. I find that resolution of
the·limited issue_presented by the motion is governed by the cases discussed above. Because
Maple Cre~k did not co~test the issuance of Order No. 7060223 within 30 days ofreceipt, it
became final for purposes of section 111. The validity of the order was not at issue in PENN
2002- 116, and it was not affected by the settlement of the related citation. Consequently, Maple
Creek's motion for summary decision must be denied.
,._

ORDER
Upon consideration of the above, Respondent's Motion for Summary Decision is hereby
DENIED.

~·Administrative Law Judge ·

12

The original answer was filed by Maple Creek's Safety Director. Maple Creek later
retained counsel, who filed a Motion for Leave to File an Amended and Substituted Answer. By
Order dated March 27, 2003, the motion was granted.
28 FMSHRC 413

Distribution:
Judith Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway, Fairfax, VA 22031
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Suite 310, Lexin~n, KY 40517
/mh

28 FMSHRC 414

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W ., Suite 9500
Washington, D.C. 20001

May4,2006
COMPENSATION PROCEEDING

UNITED MINE WORKERS OF
AMERICA, LOCAL 1248,
Complainant

Docket No. PENN 2002-24-C

v.
Maple Creek Mine
Mine ID 36-00970.

MAPLE CREEK MINJNG, INC.,
·Respondent

ORDER GRANTING RESPONDENT'S
MOTION FOR. SUMMARY DECISION
This case is before me on a complaint filed pursuant to section 111 of the Mfue Safety
and Health Act of 1977 ("Act"), 30 U .S.C. § 821. The United Mine Workers of America, Local
1248 (''UMWA"), seeks compensation for miners idled by an order issued by the Secretary of
Labor's Mine Safety and Health Administration {''MSHA") requiring the withdrawal ofminers
from the Maple Creek Mme. The complaint was later amended to assert claims by miners who
worked at Maple Creek's preparation plant who also were allegedly idled by the same order.
Respondent has moved for summary decision, and the UMWA has opposed the motion. As
explained more fully belbw, the motion is granted.
The Issue to be Resolved
Miners typically are not paid if they do not work. MSHA enforcement actions that result
in closing all or part of a mine can, therefore, have a significant economic impact on both the
mine operator and any miners idled by the·enforcement action. Section 111 of the Act provides
limited relief to miners under certain conditions. 1 The first two sentences of the section provide

1

Section 111 reads, in pertinent part:

Ifa coal or otlier mine or area of such mine is closed by an order issued under
section [103], section (104], or section [107], all miners working during the shift
when such order was issued who are idled by such order shall be entitled,
regardless of the result of any review of such order, to full compensation by the
operator at their regular rates of pay for the period they are idled, but for not more
than the balance of such shift. If such order is not terminated prior to the next
working shift, all miners on that shift who are idled by such order shall be entitled
to full compensation by the operator at their regular rates of pay for the period
28 FMSHRC 415

less than one shift's pay for miners idled by certain closure orders. That limited compensation is
available regardless of the result of any review of such orders.
The third sentence of the section, upon which the instant claim is based, provides for up
to one week's compensation for miners idled by orders entered under sections 104or107 of the
Act, because of an operator' s failure to comply with any mandatory health or safety standard, but
only "after all interested parties are given ah opportunity for a public hearing, ... and such
order is final." The complaint here seeks compensation for miners idled by Order No. 7082610,
which was issued pursuant to section 104(d)(2) of the Act.
Maple Creek contends that Order No. 7082610 was later modified to a citation issued
pursuant to section 104(a) in conjunction with settlement of a civil penalty proceeding and,
consequently, that no compensation is available under the third sentence of section 111. The
UMWA argues that compensation is due because the miners were, in fact, idled by the order and,
since Maple Creek paid a civil penalty for the as-modified citation, its culpability for the alleged
violation has been conclusively established. The issue presented by the motion is whether Order
No. 7082610 is ''final" within the meaning of section 111. For the reasons set forth below, I find
that the order did not become final and grant Maple Creek's motion.

On August 28, 2001, at 11 :00 a.m., an MSHA inspector observed hazardous roof
conditions in Maple Creek' s mine and issued Order No. 7082606, an "imminent danger"
withdrawal order, pursuant to section 107(a) of the Act. The order required the withdrawal of
miners from an area described as "The 6 West bleeder system from the No. 15 crosscut to No. 18
crosscut and the 7 West bleeder system from No. 34 crosscut to No. 35 crosscut." The same
day, at 4 :30 p.m., the inspector issued Order No. 7082610 pursuant to section 104(d)(2) of the
Act, alleging a violation of 30 C.F.R. § 75.370(a)(l ), which requires that a mine operator develop
and follow an approved ventilation plan.2 Maple Creek's ventilation plan had been amended on
August 8, 2001, to lower action levels for methane concentrations from 4.5% to 4.0%, Maple
Creek had failed to implement the change.

they are idled, but not for more than four hours of such shift. If a coal or other
mine or area of such mine is closed by an order issued under section [ 104] or
section [107] for a failure of the operator to comply with any mandatory health or
safety standards, all miners who are idled by such order shall be fully
compensated after all interested parties are given an opportunity for a public
hearing, which shall be expedited in such cases, and after such order is final, by
the operator for lost time at their regular rates of pay for such time as the miners
are idled by such closing, or for one week, whichever is the lesser.... [30 U .S.C.
§ 821].
2

Copies of Order Nos. 7082606 and 7082610 are attached to the Complaint.
28 FMSHRC 416

On March 27, 2002, MSHA issued proposed civil penalty assessments for various
citations and orders issued to Maple Creek, including Order No. 7082610, for which a penalty of
$3,500.00 was proposed. Maple Creek contested that and other proposed penalties on April 9,
2002. On May 22, 2002, the Secretary filed with the Commission a Petition for Assessment of
Civil Penalties against Maple Creek, Commission Docket No. PENN 2002-132, which sought
the imposition of civil penalties in the total amount of $59,550.00, for 19 alleged violations of
the Secretary' s regulations prescribing mandatory safety standards for underground coal mines.
..

The petition in PENN 2002-132 was served on Maple Creek and Local Union 1248 of the
UMWA. The UMWA did not seek party status in that case. On December 12, 2002, the
Secretary filed a Motion for Decision and Order Approving Settlement, which sought
Commission approval of a settlement of all of the violations at issue.3 As to Order N~. 7082610,
the motion described the proposed settlement as follows:
·
Order No. 7082610 was.issued on August 28, 2001 by CMI Anthony R.
Guley, Jr. He cited a§ 104(d)(2) violation of 30 C.F.R. § 75.370(a)(l) based
upon his determihation that Respondent was not in compliance with its ventilation
plan. Respondent's examiners had detected methane in concentrations of up to
4.0% and 411 %. Respondent took no action to correct this hazard. Three weeks
prior, MSHA approved Respondent's amendment to its ventilation plan, which
requires Respondent's examiners to take action when concentrations of 4.0%
methane are detected. This action level was decreased from 4.5% in its prior plan.
The inspector assessed the.gravity of the.violation as "significant and
substantial" and found that it was .reasonably likely·that an.event would occur
against which the standard is directed, lost workdays could be sustained from
resultant injuries, and one miner was exposed to the hazard. The·inspector found
Respondent's negligence to be high. A penalty of$3,500.00 was specially
assessed based on the high negligence rating;
The parties submit that Respondent's negligence was not as high as
initially determined. Respondent represents that it had inadvertently instructed its
examiners that the action level was 4.5% methane and had failed to update its
instructions to include the new 4.0% action level. Moreover, the gravity is
somewhat less based on the incremental change in the action level which was also
below the lower explosive limit of methane. Therefore, reclassification of the
Order to a "significant and substantial"§ 104(a) violation and a reduction in the
specially assessed penalty to $2,000.00 is warranted in these circw:hstances.
Settlement Motion, at 6.

3

Copy attached as Exhibit 2 to Respondent's motion.
28 FMSHRC 417

The UMWA was served with a copy of the motion, but did not file anything in response.
On December 17, 2002, a Decision Approving Settlement was entered, granting the Secretary's
motion, specifically approving the proposed reduction of the civil penalty assessed for Order
No. 7082610, and ordering its modification to a citation issued pursuant to section 104(a).4
Discussion
The complaint for compensation, as amended, seeks up to one week's compensation,
plus interest, for each miner idled by the issuance of Order No. 7082610, pursuant to
section 111 of the Act.5 Based upon the representations in the Secretary' s settlement motion in
PENN 2002-132, and the fact that the order granting the motion directed the modification of
Order No. 7082610 from a section 104(d)(2) order to a citation issued under sectio~ 104(a) of the
Act, Respondent argues that Order No. 7082610 never became final, and cannot forin the basis
for an award of up to one week' s compensation under section 111 .
Section 111 stands apart from the interrelated structure for reviewing citations, orders and
penalties created by section 105. The purp<)se of section 111 is to determine·the co~pensation
due miners idled by certain withdrawal orders, not to provide operators with an additional avenue
for review of the validity of the Secretary' s enforcement actions. Local Union 2333, District 29,
UMWA v. Ranger Fuel Corp., 12 FMSHRC 363, 370-71 (March 1990); Local Union 1810,
District 6, UMWA v. Nacco Mining Co., 11FMSHRC1231, 1239(July1989). The Secretary is
a party to enforcement proceedings under section 105, whereas in compensation proceedings
under section 111, only the miners, or their representatives, and the operator are parties.
Consequently, the finality of any order, or modification thereof, must be determined by reference
to the outcome of any relevant section 105 proceedings between the Secretary and the operator,
and a claim for compensation under the third sentence of section 111 cannot be adjudicated until
the subject order has become final under section 105.
As noted above, Maple Creek duly contested Order No. 7082610 pursuant to section
105(a), after being notified of the civil penalty that had been assessed for the violation. The
disposition of the violation, as stated in the Decision Approving Settlement entered in the penalty
proceeding before the Commission, was that the order was modified to a citation issued pursuant
to section 104(a) of the Act, i.e., the order was successfully challenged by Maple Creek and did
not become final. The UMWA did not seek to intervene in that case, and expressed no objection
to the proposed disposition.

4

Copy attached as Exhibit 3 to Respondent's motion.

5

The Complaint cited both Order No. 7082606 and Order No. 7082610 as the bases for
compensation claims. However, in response to interrogatories, Complainant identified Order
No. 7082610 as the sole basis for the claim. A copy of Complainant's responses to
interrogatories is attached as Exhibit 1 to the motion.
28 FMSHRC 418
1

The section 105 proceeding having been concluded, the claim for compensation may now
be addressed.6 Because the section 104(d)(2) order upon which the claim is based did not
become final, the claim for compensation under the third sentence of section 111 must be
rejected.
Despite the clear wording of the statute, Complainant argues that section 111 is to be
interpreted broadly and that its miners are entitled to compensation even though the order is no
longer valid. However, its argument is directly rebutted by the statute. In construing a similar
provision of the Federal Coal Mine Health and Safety Act of 1969, the court in Rushton Mining
Co. v. Morton, 520 F.2d 716, 720 (3rd Cir. 1975) stated:
We believe that it is clear that in drafting§ 820(a) Congress understood
the difference between an order which is ultimately upheld and one which is ·
ultimately vacated, and that in clause [2] [providing up to one week's
compensation] Congress intended to compensate miners only where the order is
ultimately upheld, but that in clauses [ 1] and [3] Congre8s intended to compensate
miners even where the order is ultimately vacated. Any other reading.of the
section would be inconsistent with the section•s overall design, since it would
ignore the fact that clause [2] explicitly predicate$ compensation oil the order's
being held valid after a hearing, whereas clauses [1] and [3] have no such
requirement.

In enacting the successor to this provision, section 111 of the Mine Safety and Health Act
of 1977, Congress did not change the critical wording with respect to the finality of orders,
except that a phrase was added in the first clause clarifying that such compensation was due
''regardless of the result of any review of such order." That phrase incoq)orated into the
legislation the holding irt Rushton, i.e., that the short-term compensation provided in clause one
was due whether or not the order was ultimately upheld.
The UMWA's argument that up to one week's compensation may be awarded, whether or
not the subject order is ultimately upheld must be rejected. The order was timely contested and
was ultimately modified to a citation issued under section 104(a). The statute does not provide
for compensation based upon the issuance of a citation.

6

Proceedings in this case had been stayed pending resolution of enforcement
proceedings related to this case, and to a companion compensation proceeding between the same
parties. Motions for summary decision were filed by Respondent in both cases in February 2006.
The cases were reassigned to the undersigned Administrative Law Judge on April 5, 2006. An
order denying Respondent's motion in the companion case, Docket No. PENN 2002-23-C, was
entered this date.
28FMSHRC419

ORDER

Upon consideration of the above, Respondent's Motion for Summary Decision is hereby
GRANTED, and the complaint for compensation is DISMISSED:

. Zielinski
c1ItPms1t:ratJ·ve Law Judge .
Distribution:
Judith Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway, Fairfax, VA 22031
Melanie J. Kilpatrick, Esq., R.ajkovic~ Williams;.Kilpatrick & True, PLLC, 2333 Alumni Park
Plaza, Swte 31 o, Lexington, KY 40517
·
/mh

28 FMSHRC 420
G:;l)" U.S. GOVERNMENT PRI N TING OFFICE: 2006-320-961/43953