APRIL 1998

CQMMISSION DECISIONS
04-01-98
04-09-98
04-30-98
04-30-98
04-30-98

Consolidation Coal Company
Kenneth L. Driessen v. Nevada Goldfields, Inc.
Topper Coal Company, Inc.
Wayne R. Steen employed by Ambrosia Coal
Cyprus Emerald Resources Corporation

WEVA 93-146-A
WEST 96-291-DM
KENT 94-944-R
PENN 94-15
PENN94-50

Pg.315
Pg.324
Pg. 344
Pg.381
Pg. 393

PENN 97-157-D
CENT 97-181-RM
CENT 97-164-R
KENT 97-321
LAKE97-46
LAKE 97-86-RM .

Pg.397
Pg. 413
Pg.424
Pg.430
Pg.437
Pg.445

LAKE 98-37-D
CENT 95-29-M
WEST 98-23-M
SE
98-14-R

Pg.453
Pg.455
Pg.461
Pg.469

ADMINISTRATIVE LAW runGE DECISIQNS
04-07-98 Sec. Labor on behalf of William Kaczmarczyk v.
Reading Anthracite Company
04-08-98 Blue Circle, Incorporated
04-10-98 Associated Electric Cooperative, Inc.
04-13-98 Lone Mountain Processing, Inc.
04-14-98 Peabody Coal Company
04-15-98 Inland Steel Mining Company
04-16-98 Sec. Labor on behalf of Sherry Ude and Brett Ude v.
Illini Energy Resources
04-24-98 REB Enterprises, Inc.
04-29-98 Brian Forbes, employed by Hamilton Rock Products·
04-30-98 Jim Walter Resources, Inc.

i

· APRIL 1998

Review was &ranted in the followin2 cases duclni the month of April:

Secretary of Labor, MSHA on behalf of Clay Baier v. Durango Gravel, Docket
No. WEST 97-96-DM. (Judge Manning, March 10, 1998)
Cyprus Cumberland Resources Corporation v. Secretary of Labor, MSHA, Docket
No. PENN 98-15-R. (Judge Feldman, March 19, 1998)

Review was denied in the followin& case durin~ the month of April:
Secretary of Labor, MSHA v. Cyprus Emerald Resources Corporation, Docket No.
PENN 94-50. (Joint Motion for Relief of May 3, 1994 decision issued by Judge Fauver)

ii

COMMISSION DECISIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
·.

1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

April 1, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)
Docket Nos. WEVA 93-146-A
WEVA 93-81-R

v.

CONSOLIDATION COAL COMPANY
BEFORE: Marks, Riley, and Verheggen, Commissioners1
DECISION
BY THE COMMISSION:
This is a consolidated contest and civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. § 801 et seq. (1994). The
Department of Labor's Mine Safety and Health Administration ("MSHA"} issued a citation
against Consolidation Coal Company ("Consol") charging it with violating section 103(j) of the
Mine Act, 30 U.S.C. § 813(j),2 and proposed a penalty of$50,000. Administrative Law Judge

Chainnan Jordan and Commissioner Beatty recused themselves in this matter and took
no part in its consideration. Pursuant to section 113(c) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise
the powers of the Commission.
I

2

Section 103(j) provides:
In the event of any accident occurring in any coal or other
mine, the operator shall notify the Secretary thereof and shall take
appropriate measures to prevent the destruction of any evidence
which would assist in investigating the cause or causes thereof. In
the event of any accident occurring in a coal or other mine, where
rescue and recovery work is necessary, the Secretary or an
authorized representative of the Secretary shall take whatever
action he deems appropriate to protect the life of any person, and

315

Gary Melick dismissed the citation. 18 FMSHRC 363 (March 1996) (ALJ). For the reasons that
follow, we affirm the judge's decision.
I.

Factual and Procedural Backifound
On March 19, 1992, an explosion occurred at Consol's Blacksville No. 1 Mine in
Monongalia County, West Virginia. 18 FMSHRC at 365; Tr. 156. Four miners, including
Consol environmental engineer Ronald Baird, were killed in the explosion. 18 FMSHRC at 365;
Gov't Ex. 1. On March 20, representatives ofMSHA, led by chief investigator Jim Rutherford,
arrived at the mine site to begin an investigation into the explosion. 18 FMSHRC at 368; Tr. 156,
157-58. Rutherford was a senior MSHA employee in charge of a ten-person investigating team
and responsible for producing MSHA's accident report and determining whether violations were
committed. Tr. 155-56. On March 20, Rutherford discussed with MSHA investigator Joseph
Vallina the need to inventory vehicles on the surface and placed him in charge of that project. 18
FMSHRC at 368; Tr. 84-85, 198-99. Under Vallina's supervision, teams consisting of state and
federal investigators and mine personnel were assigned the responsibility of inventorying vehicles.
Tr. 87.
On the morning of March 21, Consol's vice-president for safety, Ronald Wooten, and
company counsel, Walter Scheller, arrived at the mine to participate in the investigation. 18
FMSHRC at 365. Local mine officials notified Scheller that Baird's widow had requested that his
personal effects be retrieved from his company vehicle. /d.; Tr. 225. At MSHA's request,
Scheller was also trying to locate training records pertaining to subcontractors at the mine that
were thought to be in Baird's vehicle. 18 FMSHRC at 365; Tr. 7-8, 226.
Scheller, accompanied by Wooten and John Morrison, safety supervisor at the mine,
approached chief investigator Rutherford and requested permission to enter Baird's vehicle to
look for his personal effects and the training records. 18 FMSHRC at 365, 366. Rutherford gave
them permission to search the vehicle. ld at 365-66. Also, in uncontested testimony, Wooten
stated that at the time perniission was granted, he told Rutherford, "[W]e would like to bring
these materials back to this office . . . and put them on [the] desk for anyone, anyone involved in
the investigation, to see." Tr. 264.
At around 10:00 a.m., ScheUer and Morrison went to Baird's vehicle. /d at 366.
Because of the ongoing investigation into the mine explosion, there were many people in the area
affiliated with either Consol, MSHA, the union, or the state mine authority. ld Baird's vehicle,
he may, if he deems it appropriate, supervise and direct the rescue
and recovery activities in such mine.
30 U.S.C. § 8130).

316

which was parked near the mine entrance, had its windows blown out when the explosion
occurred and was ~overed by a tarp. ld Scheller and Morrison removed the tarp, and Scheller
entered the vehicle. ld Scheller found a metal clipboard with papers relating to a wrestling team
that Baird had coached. ld at 366-67. Morrison placed the clipboard along with other personal
items, including a Bible and keys in a small cloth duftle bag that he had brought with him. Tr.
230.. In the vehicle's middle console, Scheller located Baird's wallet along with a hand-held
methane detector and charger. Tr. 230-31. Scheller removed the wallet from the console and
handed it to Morrison who put it in the cloth bag. Tr. 231. He then told Morrison to remember
where the methane detector had been found. 18 FMSHR.C at 366-67; Tr. 11, 231 .
Shortly thereafter, Vallina, who along with MSHA Inspector Teaster was standing about
25 feet away from Baird's vehic1e and watching Scheller and Morrison, came up to them and
asked them what they were doing. 18 FMSHR.C at 366-67. Scheller responded that Rutherford
had authorized them to look for Baird's personal effects and training records. ld Scheller also
told Vallina that he found a methane detector. Jd. Vallina told Scheller to return the detector to
where he had found it. ld Scheller did so and then reattached the tarp over the vehicle. ld at
366. Vallina did not search the cloth bag, nor did he ask what was in it. Jd.; Tr. 138. Teaster
accompanied Scheller and Morrison back to the mine office. 18 FMSHR.C at 366. At the office,
Rutherford confirmed that he had given Scheller permission to go into Baird's vehicle. Jd
Scheller emptied the contents of the duftle bag on a table in the presence of Rutherford. ld at
366-67. Scheller asked Rutherford whether there was a problem, and Rutherford answered,
"No." Jd. at 366.
On November 9, 1992, MSHA issued a citation against Consot,l which stated:
The mine operator altered evidence which would assist in the
accident investigation of the fatal methane explosion . . . . A
Consol vehicle assigned to Rod Baird . .. was located in the blast
area . . . and was damaged by the explosion. This vehicle contained
. items related to the work area that would assist the investigation.
Specifically, a methane detector and a Consol . . . metal clipboard,
which Baird-reportedly used to attach routine work notes and
records, were in the subject vehicle.
On March 21, 1992, Consol employees Walter Scheller and John
Morrison entered. Baird's vehicle and took Baird's assigned
methane detector and clipboard without permission along with a
cloth bag of other items. Scheller and Morrison had obtained
3

MSHA issued several other citations and orders against Consol as a result of the
investigation, inc1uding one that charged it with failing to conduct methane tests in a coal silo near
the mine entrance. Consolidation Coal Co., 18 FMSHR.C 357 (March 1996) (ALJ). That
citation was dismissed by the judge. ld at 362.

317

MSHA's permission to retrieve only training records and Baird's
personal effects from the vehicle. Upon being observed and
stopped by MSHA accident investigation team member Joseph
Vallina, Scheller returned the :methane detector to the vehicle.. . . .
Jd at 364; Gov't Ex. 1.

Consol contested the citation and th.e matter went to hearing. At the hearing, the
Secretary's counsel clarified that the citation only charged a violation with regard to the methane
detector but not as to the clipboard or cloth bag. 18 FMSHRC at 364. The judge initially held
that, based on the language of the citation, it must be dismissed as a matter of law because it
failed to charge a violation of section 103G) of the Act. Jd In addition, the judge found that,
even if the citation alleged .a violation of section 103G), the credible evidence established that
Scheller had been given permission to search the Baird vehicle and remove specific articles and
that he had been told that MSHA was through with the vehicle. ld at 367. The judge credited
Scheller's explanation that he intended to turn over the methane monitor to Rutherford as possible
material evidence. !d. He concluded that the Secretary failed to carry her burden in proving that
Consol failed to take appropriate measures to prevent the destruction of evidence. !d. at 365,
367-68.
II.

Disposition
The Secretary argues that the judge erred in determining that altering evidence by
removing it from an accident scene was not a violation of section 1030) of the Act. PDR at 1; S.
Br. at 7-8. The Secretary also contends that substantial evidence does not support the judge's
determination that, even if removal of evidence from an accident scene were a violation, the
Secretary did not establish a violation of section 103G). PDR at 2; S. Br. at 15. The Secretary
asserts that, because the judge did not base credibility detenninations on his observation of
witnesses, those determinaticms are not entitled to deference. S. Br. at 15-16. Finally, the
Secretary argues that the judge failed to reconcile inconsistencies in the testimony ofwitnesses
whom he credited. /d. at 16-24.
Con sol argues that the Secretary's interpretation of section 103 G) is not entitled to
deference because its language is dear and does not include "alteration" of evidence that was the
basis of the citation. Consol Br. at 2-9. Scheller's actions in removing the methane monitor to
take it to MSHA officials, Consol argues, were designed to ensure that the evidence was not
overlooked or destroyed. /d. at 11-15. With regard to the factual findings, Consol contends that
substantial evidence supports the judge and that he correctly resolved conflicts among witness
testimony based on proper considerations. Jd at 15-19.

318

Section 103G) of the Act requires operators to "take appropriate measures to prevent the .
destruction of any eVidence which would assist in investigating the cause [of an accident]." The
purpose of the provision is to preserve evidence that could disclose the reason for a mine
accident. S. Rep. No. 181, 95th Cong., 1st Sess. 29, reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977, .at 617 (1977).
Witnesses for both the Secretary and Consol similarly testified that Consol counsel
Scheller asked MSHA's c~efinvestigator Rutherford for permission to enter Baird's vehicle and
retrieve his personal effects and training records. Tr. 8-9, 161, 186, 227, and 260-61. The judge
credited Scheller's and Consol vice-president Wooten's testimony that Rutherford also stated that
MSHA was through with the vehicle. 18 FMSHRC at 365. Once inside the vehicle, Scheller
located the methane dectector, which be showed to inspector Vallina when he arrived. ld at 36667. The judge further credited Scheller's uncontroverted testimony that he intended to hand over
the methane detector to Rutherford because it was material evidence. 18 FMSHRC at 367; Tr.
238.
A judge's credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (September
1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (December 1981 ). The Commission bas
recognized that, because the judge has an opportunity to hear the testimony and view the
witnesses, he is ordinarily in the best position to make a credibility determination. In re: Contests
ofRespirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (November 1995)
(quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), appeal docketed sub nom.
Secretary of Labor v. Keystone Coal Mining Corp., No. 95-1619 (D.C. Cir. Dec. 28, 1995).
Nonetheless, the Commission will not affirm such determinations if there is no evidence or
dubious evidence to support them. Consolidation Coal Co., 11 FMSHRC 966, 974 (June 1989)
(citations omitted).
The Secretary contends that the Commission should not accord the judge's credibility
resolutions the weig~t that such determinations are generally given because they were not based
on witness demeanor and because the judge failed to consider other significant record testimony.
S. Br. at 15-16. We disagree. Contrary to the Secretary's argument, there is nothing in the
judge's decision to suggest that he did not consider his observation of witnesses in making his
credibility determinations. See 18 FMSHRC at 365, 367 (general statements of credibility). We
find the judge's reliance on witness demeanor in his credibility determinations is implicit. Cf
Universal Camera C01p. v. NLRB, 340 U.S. 474,496 (1951).
Moreover, in this proceeding the judge supported his credibility determinations by drawing
inferences from largely undisputed facts. Thu-s, in crediting Scheller's and Wooten's testimony,
the judge noted that it was reasonable to infer that, if anyone was going to destroy evidence, it is
not likely that he would do so in broad daylight under the eyes offederal investigators. 18
FMSHRC at 367. Nor is it likely that one who was interested in destroying evidence would wait

319

two days after the accident to search for evidence and seek the permission of t,be chief
investigator to do so.· Jd Rather, it would be more likely that such a person would seek out such
. evidence surreptitiously at night without permission dUring the early stages of an investigation.
/d. Finally, as the judge noted, the presence of a methane detector in Baird's vehicle during the
investigation of a methane explosion could be considered exctilpatory; therefore, Consol officials
would be motivated to preserve rather than destroy such evidence. ld. The inferences drawn by
the judge based on record facts are reasonable, and the Secretary has offered no countervailing
considerations that persuades us to overturn them. 4
In crediting the testimony of Scheller and Wooten, the judge also weighed the contrary
testimony of MSHA chief investigator Rutherford. The judge noted that Rutherford was "busy'~
and, therefore, his recollection of the conversation may not have been as clear as otherwise could
be expected. ld at 368. Thus, on the morning ofMarcb 21, Rutherford was engaged in trying to
get a team of investigators underground for the first time since the mine explosion. Tr. 161-62.
In addition, the judge found that notes that Rutherford wrote after incident, Resp. Ex. 4, were
inconsistent with his trial testimony and omitted significant parts of his conversation with Scheller
and Wooten that be later recalled. 18 FMSHRC at 368. The judge further noted that Rutherford
was a senior skilled investigator who would not likely have given Consol officials permission to
search Baird's vehicle unless be believed that its contents had been inventoried. ld Lastly, the
judge considered that Rutherford had instructed his investigators to inventory aH vehicles in the
blast area on the previous day, suggesting that be believed that the.vehicle had been inventoried. 5
4

The Commission has held that "the substantial evidence standard may be met by
reasonable inferences drawn from indirect evidence." Mid-Continent Resources, Inc., 6
FMSHRC 1132, 1138 (May 1984). The "possibility of drawing either of two inconsistent
inferences from the evidence [does] not prevent [the judge] from drawing one of them." NLRB v.
Nevada Consolidated Copper Corp., 316 U.S. 105, 106 (1942). The Commission has
emphasized that inferences drawn by the judge are "permissible provided they are inherently
reasonable and there is a logical and rational connection between the evidentiary facts and the
ultimate fact inferred.". Mid-Continent, 6 FMSHRC at 1138 (citatio~s omitted).
5

Commissioners Riley and Verheggen note additionally as follows: We are perplexed by
the Secretary's proposed penalty in this case, which our colleague properly characterized as
"outlandish" at oral argument (Oral.Arg. Tr. at 35). As to the gravity of the alleged violation,
Secretary's ~ounsel admitted that the methane monitor on which this case is based had absolutely
no bearing on the accident investigation (id. at 32-36), which was completed when MSHA issued
the citation some nine months after the accident investigation. Nor can we find in the
circumstances of this case any indication that any of the Consol officials involved acted
negligently~ to the contrary, we agree with the judge's observation that they were attempting to
''preserve evidence rather than destroy it." 18 FMSHRC at 365 (emphasis added). As to other
penalty factors, we find nothing in the record that would justify a $50,000 penalty. We thus view
with no small amount of skepticism the Secretary's arguments in this case. We believe that

320

ld Contrary to the Secretary' s argument, S. Br. at 18-19, the judge's analysis ofRutherford's
testimony is logical and consistent with other record evidence and, therefore, we decline to
disturb his credibility resolutions. See also Ona, 729 F.2d at 719 (reviewing court not bound by
judge's credibility resolutions where inherently unreasonable or self-contradictory, or based on
inadequate or no reason).
The Secretary finally argues that the judge failed to address inconsistencies in witness
testimony with regard to Rutherford's granting pennission to enter Baird's vehicle. S. Br. at 2224. However, the differing versions of the conversation given by Scheller, Wooten, and Morrison
do not provide a basis for overturning the judge. Unlike Scheller and Wooten, who testified that
Rutherford sai~ that MSHA was through with the vehicle (Tr. 227, 261), Morrison's testimony
was silent on that point (Tr. 8-9). Given that there was only a direct conflict between the
testimony of Rutherford, Scheller and Wooten, the judge reasonably limited his discussion to the
inconsistencies in their testimony on this issue. The judge found it more significant that Morrison
corroborated that Rutherford had given permission to enter and search the vehicle. 18 FMSHRC
at 368. We agree.
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 2159, 2163 (November 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. MicJ..vesl Material Co., 19 FMSHRC 30, 34 n.5 (January 1997) (quoting
Universal Camera, 340 U.S. at 488.
Based on the testimony credited by the judge, we conclude that substantial evidence
supports the judge's determination that the actions ofConsol officials did not contravene section
103G). As the judge concluded, "the actions of Consol officials in removing the ... methane
detector from the.Baird vehicle may reasonably be construed, under all the circumstances, to have
been an effort to preserve evidence rather than destroy it." 18 FMSHRC at 365.

MSHA should not have sought to so severely penalize Consol for its own failure to properly
secure and inventory the accident scene - after all, this case would not be before the Commission
had MSHA's investigation proceeded as Rutherford apparently assumed it had.

321

m.
Conclusion
For the foregoing reasons, we affirm the judge's decision dismissing e citation against
Consol.6

•

Theodore F. Verheggen, Co

6

In light of our decision, we do not reach the Secretary's argument that section 1030) of
the Act proscribes alteration of evidence or its removal from an accident scene.

322

Distribution

Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
David J. Hardy, Esq.
Jackson & Kelly
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
2 Skyline, 1001 Floor
5203 Leesburg Pike
Falls Church, VA 22041

323

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

April 9, 1998

KENNETH L. DRIESSEN
Docket No. WEST 96-291-DM

V.

NEVADA GOLDFIELDS, INC.

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

DECISION
BY: Jordan, Chairman; Riley and Verheggen, Commissioners
In this discrimination proceeding, arising under the Federal Mine Safety and Health Act
of1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge T.
Todd Hodgdon dete~ined that Nevada Goldfields did not violate section lOS(c) of the Act, 30
U.S.C. § 81S(c), 1 when it tenninated employee Kenneth L. Driessen on February 7, 1996.

1

Section lOS(c) of the Act provides, in pertinent part:
. (1) No person shall discharge or in any manner
discriminate against or ... otherwise interfere with the exercise of
the statutory rights of any miner ... in any coal or other mine
subject to this Act because such miner ... has filed or made a
complaint under or related to this Act, including a complaint
notifying the operato_r or the operator's agent ... of an alleged
danger or safety or health violation in a coal or other mine, ... or
because of the exercise by such miner ... of any statutory right
afforded by this Act.
(2) Any miner ... who believes that he has been
discharged, interfered with, or othetwise discriminated against by
any person in violation of this subsection may, within 60 days after

324

19 FMSHRC 157 (Jan. 1997) (ALJ). We granted the petition for discretionary review filed by
Driessen challenging the judge's decision. For reasons that follow, we affirm the judge.

I.
Factual and Procedural Back~und
Nevada Goldfields, Inc. ("Nevada Goldfields") began mining operations at the Nixon
Fork Mine, located in the central interior of Alaska near McGrath, in October, 1995. 19
FMSHRC at 158; Tr. 1·10. Access to the mine is limited; everything is transported in or out by
airplane. 19 FMSHRC at 158; Tr. 129. The Nixon Fork Mine employs 50 miners and produces
gold and some silver and copper. 19 FMSHRC at 158. The miners work 12-hour shifts, seven
days a week. Id. The shjfts begin at 7:00a.m. and 7:00 p.;n. ld. The miners work either two
weeks on, one week off, or four weeks on, two weeks off. Id.
The ore comes out of the mine in rocks which are then conveyed through crushers, ball
mills, and other processors until it is shipped out as bagged concentrate of dore ingots? Id. The
No. 1 ball mill at the mine processes the raw ore into copper/gold concentrate and operates
continuously except during periods of maintenance. Tr. 118-19, 162. The ball mill is essential to
processing ore at the mine. Tr. 167.
Prior to January 24, 1996, there were problems with the No. 1 ball mill and measures
were taken to repair it. Tr. 47-48, 168. The mill sometimes overheated and slurry water leaked
into the bearings, causing steam to be emitted. Tr. 48, 167. It was determined that the main
problem was a seal leak, and grease fittings were installed as a stop-gap measure to reduce the
operating temperature of the mill until the damaged discharge end bearing could be replaced. Tr.
47', 169-70, 173. The mill was shut down on the evening of January 24, and Kenneth Driessen,
who was hired as a mechanic in October 1995, was asked to clean the mill, grease it, and put it

such viola~ion occurs, file a complaint with the Secretary alleging
such discrimination....
(3) ... If the Secretary, upon investigation, determines that
the provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of the
Secretary's determination, to file an action in his own behalf before
the Commission, charging discrimination or interference in
violation of paragraph (1 ).
2

"Dore" is defined as "gold and silver bullion ...." U.S. Dep't of Interior, Dictionary
ofMining, Mineral, and Related Terms 164 (2d ed. 1997). "Ingot" is defined as "[a] mass of cast
metal as it comes from a mold or crucible; speciflically], a bar of gold or silver for assaying,
coining, or export." ld. at 279.

325

back together. 19 FMSHRC at 160; Tr. 168. Driessen took apart the bearing and noticed that the
grooves in the shaft of the mill were deep, indicating s~vere wear and damage caused by the
leaking slurry water. Tr. 19, 168. Later that shift, Driessen informed mill superintendent Mike
Rusesky that he believed that restarting the mill would be dangerous, and Rusesky decided not to
restart the mill. 19 FMSHRC at 160; Tr. 19-20, 171. Both Driessen and Rusesky were later
reproached for failing to speak with either maintenance supervisor Ted Botnan or mine manager
Mel Swanson before deciding not to restart the mill, because this violated the procedures set
forth in the communications section of the employee handbook. 19 FMSHRC at 160-61; Ex. H
at 5.3
The faulty bearing in the ball mill was flown to San Diego for repairs. Tr. 172-73.
Subsequently, it was ftxed and returned to the mine early the following week. Tr. 173-74. From
January 30 to February 6, a contract millwright supervised the installation of the bearing. Tr.
175. In a test on February 3, the mill did not exceed acceptable temperature levels when operated
without grinding balls. Tr. 176-77. However, on February 6, the mill would not run when the
steel grinding balls were put back into it. Tr. 20, 178.
At 7:00p.m. on the evening of February 6 at the beginning of his shift, Driessen was
asked to look at the ball mill to determine why it would not run normally, and he opined that the
mill would not run because the rubber seal or flange on the feeder end of the mill, which was out
of alignment, was binding. Tr. 179, 182-83. Management was aware that the flange was out of
alignment, but this had never been a problem except to cause the flange to wear out more
frequently. 19 FMSHRC at 164; Tr. 182. After allowing Driessen to attempt various repairs,
Botnan and Swanson became convinced that the problem was electrical rather than mechanical. 4
19 FMSHRC at 163. Driessen suggested cutting a flap on the flange but, after some argument,
mine manager Swanson specifically ordered Driessen not to touch the flange, which mechanics
on the prior shift had spent several hours fabricating and installing. ld at 164; Tr. 147, 182-83.
At approximately 11:00 p.m., Botnan and Swanson left. Tr. 147-48, 183-84.
The parties differ regarding which tasks Driessen was assigned to perform when Botnan
and Swanson left. Driessen maintained that he was assigned to troubleshoot the mill on February
·
6-7 and was not given any other assignments. 19 FMSHRC at 161 ; Tr. 24, 68. Swanson and

3

The employee handbook provides in pertinent part: "If you have a problem or concern,
you should discuss it with your supervisor ftrst." Ex. Hat 5. Mill superintendent Rusesky, the
only person to whom Driessen reported his initial concerns about the ball mill, was not
Driessen's supervisor. Tr. 116. Botnan acted as the mechanics' direct supervisor. Tr. 127, 130.
According to company procedure, either Botnan or mine manager Swanson should have been
consulted before the decision was made not to restart the ball mill. 19 FMSHRC at 161 .
4

Botnan and Swanson were correct in their assessment. 19 FMSHRC at 163 n. 7. The
electrical problem was repaired by an electrician the next day and the ball mill had operated
without incident up through the date of the hearing. ld

326

Botnan testified that, after Swanson had concluded that the problem with the mill was electrical,
Driessen was given three specific tasks to be completed on his shift: reassemble and tighten the
feed chute tube on the mill; reassemble the coupling on the mill's motor; and change a tire on the
966loader. 5 19 FMSHRC at 163-64; Tr. 130, 186.
At 7:00a.m. the following morning at the end of Driessen's shift, Driessen spoke to
Nevada Goldfields vice president Joe Kercher regarding the continuing problems With the ball
mill, and gave Kercher a drawing of the mill he had drafted. 19 FMSHRC at 159, 164; Ex. I.
Botnan and Swanson arrived and discovered that the three assignments given to Driessen had not
been completed; the flange on the mill had been cut; and Driessen had worked on drawings of the
mill. 19 FMSHRC at 160, 164. The cut flange created a leak, destroying the work performed by
the previous shift. ld at 164; Tr. 185. After discussing the matter, Kercher, Botnan, and
Swanson decided to fire Driessen for insubordination because he failed to complete tb,e tasks
assigned him and instead focused on other matters on which he had not been told to work. 19
FMSHRC at 164; Tr. 186. Botnan then informed Driessen that he was terminated. 19 FMSHRC
at 164; Tr. 30-31, 187.
On March 4, 1996, Driessen filed a complaint with the Secretary ofLabor's Mine Safety
and Health Administration ("MSHA"), alleging that he had been discriminated against for
engaging in protected activity. 19 FMSHRC at 157. Following an investigation, MSHA
informed Driessen it had determined that no discrimination had occurred. Ex. C. Driessen filed
a complaint with the Commission, and the matter proceeded to hearing before Judge Hodgdon.
The judge concluded that Nevada Goldfields did not violate section 105(c) by firing
Driessen. 19 FMSHRC at 164. The judge found that Driessen engaged in protected activity
priorto his termination. ld at 160. On January 24, 1995, Driessen.told inill superintendent
Rus.esky that it would be dangerous to restart the ball mill; and on February 7, 1996, Driessen
expressed to company vice president Kercher his opinion about what repairs were still needed to
be able to restart the mill. ld at 159; Tr. 26-27. While the judge held that Driessen had made a
protected safety complaint under section 105(c), he nevertheless concluded th_a t Driessen was
fired for insubordination.__ 19 FMSHRC at 164. Based on his determination that the company
had the more credible version of the events prior to Driessen's discharge, the judge concluded
that the termination was precipitated solely by Driessen's failure to comply with several direct
orders and was in no part based on protected activity. ld

5

On February 6-7, the 966loader was the only piece of machinery that could unload
freight from planes and plow snow off the l~ding field. Tr. 155-56.

327

II.
Disposition
Driessen, who was represented by counsel before the judge, filed a pro se petition for·
discretionary review, challenging the judge' s conclusion that Nevada Goldfields did not violate
section 105(c). Driessen argues that the judge erred in finding that Nevada Goldfields fired him
for his allegedly insubordinate behavior alone. PDR at 1-3. Driessen maintains tha~ as a result
of twice bringing to the company's attention what he considered to be dangerous situations, he
was discriminatorily discharged. D. Br. at 1.6 Finally, Driessen asserts that witnesses whom he
subpoenaed for the hearing were unable to testify truthfully because they feared losing their jobs.
PDRat 3.
"

Nevada Goldfields responds that the judge properly concluded that Driessen's
termination did not violate section 1OS(c). Resp. Br. at 1, 5. The company asserts that the judge
correctly found that company officials assigned Driessen three specific tasks which were to be
performed on the February 6-7 night shift and that Driessen failed to complete any of these tasks.
ld. at 2, 10. The company further argues that the judge's finding that it fired Driessen only for
these insubordinate actions and that his safety complaints were in no part considered in the
tem1ination decision is supported by substantial evidence. /d. at 5. With regard to Driessen's
assertions about witness credibility, Nevada Goldfields argues that the Commission should reject
them as untrue and based on non-record evidence. /d. at 6-7.
Section 1OS(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Act. A complainant alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by presenting evidence sufficient to
support a conclusion that the individual engaged in protected activity and that the adverse action
complained of was motivated in any part by that activity. Secretary ofLabor on behalfofPasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev 'don other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F .2d 1211 (3d Cir. 1981 ); Secretary ofLabor on behalf
of Robinette v. United Cas.tle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may
rebut the prima faCie case by showing either that no protected activity occurred or that the
adverse action was in no part motivated by protected activity. Robinette, 3 FMSHRC at 818
n.20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend
6

Driessen also asserts that he was denied notice of the insubordination defense which
was used against him at the hearing. See PDR at 2, 3. However, documents in the record
undermine this claim. See Letter from Melvin R. Swanson with copy to Driessen, dated August
11, 1996, Ex. E (detailing the reasons for Driessen's discharge, including "his failure to perform
assigned tasks, and to destroy [sic] a previous shift's construction effort"); Resp. Preliminary
Statement at 2, dated November 8, 1996 (stating that Driessen was discharged for "blatant
insubordination"). In short, Driessen was on notice of the insubordination defense well before
the November 13, 1996 hearing date.

328

affirmatively by proving that it also was motivated by the miner's unprotected activity and would
have taken the adverse action for the unprotected activity alone. Jd. at 817; Pasula, 2 FMSHRC
at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,642 (4th Cir. 1987).
As the judge found, Driessen engaged in acts protected by section I 05(c), when he ·
complained that starting the No. I ball mill would be dangerous/ and that he believed problems
with the mill still existed. 19 FMSHRC at 159-60. Nevada Goldfields nowhere denies that these
acts were related to safety. Therefore, as the judge concluded, Driessen engaged in protected
activity before he was terminated, satisfying the first element of a Pasula-Robinette prima facie
case. !d.; see Robinelte, 3 FMSHRC at 817 (citing Pasula, 2 FMSHRC at 2799-800). Further, it
is undisputed that Driessen was discharged on February 7, 1996. See Robinette, 3 FMSHRC at
817. Discharge is perhaps the clearest form of adverse action prohibited by the plain language of
the Mine Act. See 30 U.S ..C. § 815(c)(1); Secretary of Labor on behalfofJenkins v. Hecla-Day
Mines C01p., 6 FMSHRC 1842, 1847-48 (Aug. 1984) (stating that discharge of a miner is "a selfevident form of adverse action").
The final inquiry to establish a prima facie case under Pasula-Robinette is whether the
adverse action was motivated in any part by the protected activity. Robinette, 3 FMSHRC at 817
(citing Pasula, 2 FMSHRC at 2799-800). The complainant bears the burden of establishing that
the adverse action complained of was motivated in any part by the protected activity. See
Secretary of Labor on behalfofRibel v. Eastern Assoc. Coal Corp., 7 FMSHRC 2015,2019
(Dec. 1985). Here, substantial evidence8 supports the judge's conclusion that Nevada
Goldfields' discharge of Driessen was in no part motivated by his protected activity.

7

Driessen was reproached for failing to inform his direct supervisors before advising
Rusesky that restarting the mill might be dangerous. 19 FMSHRC at 160-61. Contrary to the
dissent, slip op. at 14, Rusesky was verbally reprimanded as well for failing to inform his
supervisors of his decision not to restart the mill. Tr. 114, 119-20. Following the shutdown of
the mill on January 24, it was not run again- aside from a series of test-runs (Tr. 176-81)until it was repaired during the following weeks. Tr. 117, 138.
8

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test 30 U.S.C.
§ 823(d)(2)(A)(ii)(l). See Secretary ofLabor on behalfofPrice and Vacha v. Jim Walter
Resources, Inc. , 14 FMSHRC 1549, 1555 (Sept 1992). "Substantial evidence" means '"such
relevant evidence as a reasonable mind might accept as adequate to support [the judge's] ·
conclusion."' Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159,2163 (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)).

329

Based on credibility determinations and the lack of any corroborating testimony or
evidence supporting Driessen's version of events, the judge concluded that Driessen did not carry
his burden of proving that his safety complaints played any role iri his discbarge.9 19 FMSHRC
at 160, 164. Mine manager Swanson testified that he, company vice president Kercher, and
maintenance supervisor Botnan decided to fire Driessen for insubordination because Botnan "had
given [Driessen] three specific instructions on what to do and he failed to do them, and he had
done a project that ... he was not instructed to do." Tr. 184-86; see also Tr. 130 (Bojnan's
testimony that Driessen failed to do the three tasks given him). The judge credited Swanson's
and Botnan's testimony th~t the company fired Driessen solely for his failure to complete his
assigned tasks. 10 19 FMSHRC at 160. The judge did not find credible Driessen's testimony that
he had been assigned to troubleshoot the mill. !d. at 161. The judge noted that Driessen's
testimony "was so filled with inabilities to recall, irrelevancies, blanks, inconsistencies and lack
of corroboration that it lacks credibility."'' ld.; see id. at 161-63. Our review of the r,~cord

9

The dissent's use of circumstantial evidence to establish Nevada Goldfields' motive in
terminating Driessen is misplaced. Slip op. 13-17. Here, the judge found that there was direct
evidence of the reason for Driessen's termination. 19 FMSHRC at 160, 164. Therefore, use of
circumstantial evidence to bypass the judge's fact findings on the pivotal issue of motivation is
improper. See Secreta~y ofLabor on behalf ofChacon v. Phelps Dodge Corp., 3 FMSRHC
2508,2510 (Nov. 1981), rev'd on other grounds 709 F.2d 86 (D.C. Cir. 1983).
10

We also note that Driessen's termination was not inconsistent with the company's
employee handbook. Ex. Hat 5 (a Nevada Goldfields employee must be "willing to take
directions"), 6 (insubordination and failure to perform a satisfactory quantity or quality of work
are considered acts of misconduct); see also Chacon, 3 FMSHRC at 2513 (noting that
complainant's di'scipline was consistent with company practice). While the handbook provides
for a progressive discipline procedure, it also unambiguously states: "Any or all of the first three
[disciplinary] steps may be omitted, depending on the seriousness of the violation." Ex. Hat 6.
Driessen's conduct on February 6-7 exhibited a clear disregard for the orders given by his
supervisors. See 19 FMSHRC at 164 (discussing Driessen's failure to complete his assigned
tasks). Furthermore, his failure to ~hange the loader tire resulted in the delay of incoming cargo
from the aircraft which arrived at the isolated mine on February 7. See Tr. 186; see also Tr. 129,
156 (discussing loader's importance to mine's operation).
11

Driessen argues that the judge's conclusion that he cut the ball mill seal or flange is not
supported by substantial evidence. See PDR at 2. However, the judge did not specifically find
that Driessen cut the seal, and he based his dismissal of the complaint on Driessen's failure to
complete the three tasks given him. See 19 FMSHRC at 164. The judge relied, however, on
Driessen's equivocal testimony regarding the cut flange (Tr. 60-67) to evidence his overall lack
ofcandor. 19FMSHRCat 162-63.

330

indicates no basis for overturning the judge's credibility resolutions in finding that Driessen was
terminated solely for insubordination.12
Nor are we persuaded by Driessen' s asserted reasons for failing to complete hi~ assigned
tasks. Driessen' s claim that his failure to complete his assigned tasks was due, in part, to another
mechanic requesting assistance with a water problem has no credible support in the record. PDR
at 2-3. As the judge found, Driessen's testimony was "rambling" and "contradictory" and not
supported by any corroborating evidence. 19 FMSHRC at 164. Compare, e.g., Tr. 2o, 32 with
60. His claim that he made some progress on his assignments on February 6-7 (Tr. 71) is
controverted by other t~stimony . Tr. 154, 156 (Botnan's testimony that the ball mill assignments
would take less than two hours to complete and that the tools and lug nuts near the 966 loader
had not been moved during Driessen' s shift). Also, no evidence was presented that anyone other
than Driessen was instructed to reassemble the feed chute tube on the ball mill, reassep1ble the
coupling on the mill, or change the loader tire on February 6-7,13 all of which went unfinished
that night. See Tr. 130, 147, 182. The judge found that Driessen's testimony regarding these
tasks was unconvincing. 19 FMSHRC at 164. In sum, substantial evidence supports the judge' s
finding that Driessen was not discharged in violation of section 105(c). 14

12

The Commission does not lightly overturn an administrative law judge's credibility
determinations, which are entitled to great weight. In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995); Farmer v. Island Creek Coal Co. , 14
FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767,2770 (Dec. 1981).
Generally, the Commission will uphold a judge' s credibility determination unless compelling
evidence supporting reversal is offered. See, e.g. , S&H Mining, Inc., 15 FMSHRC 956,960
(June 1993) (upholding judge' s credibility determination because no compelling evidence
supporting reversal was offered); Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 1418 (June
1984) (refusing to take the "exceptional step" of overturning judge' s findings based on credibility
resolutions); see also Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984), aff'd 166 F.2d
469 (11th Cir. 1985) (stating that when the judge's finding rests upon a credibility determination,
the Cornmission.will not substitute its judgment for that of the judge absent clear indication of
error).
13

Driessen acknowledged that working on the loader tire was on his work list (Tr. 32)
and that changing the tire was a "priority." Tr. 71 .
14

Our dissenting colleagues correctly state that Botnan testified that "at least some
attempt to try to [perform assignments] is good enough for me." Slip op. at 17 (alteration added)
(quoting Tr. 151). They fail to acknowledge, however, that Botnan further stated that Driessen
made "no attempt to try" completing any ofhis assigned tasks. Tr. 151 (emphasis added).
Given that there were no plans to run the ball mill until further tests were run, the mill posed no
danger to Driessen or other workers that would have justified Driessen's disregarding his work
assignments in order to compose his two page sketch and notes.

331

Driessen urges one final ground for reversing the judge- an allegation ofwitness bias.
PDR at 3. In support of that ground, Driessen references a letter that he wrote to the judge after
the hearingu and an affidavit attached to his petition for revie.w. Jd. Both documents allege
essentially that, after the hearing, mill superintendent Rusesky told Driessen that Driessen was
flred for saying that the ball mill was dangerous but that Rusesky could not so testify because he
was afraid of losing his job. See Driessen Aff. dated Jan. 9, 1997; Letter from Driessen to Judge
Hodgdon of Dec. 17, 1996. Neither document is properly part of the record and thus.neither can
be considered by the Commission on review. 30 U.S.C. § 823(d)(2)(C).16 Such evidence should
be considered by the judge in the first instance (see Union Oil Co. ofCal., 11 FMSHRC 289, 301
(Mar. 1989)), and Driessen has not established "good cause" for failing to explore the issue of
witness bias at the hearing where he was represented by counsel. 30 U.S.C. § 823(d)(2)(A)(iii).
Indeed, Driessen asserts in his petition that he knew before the hearing that neither Rusesky, nor

The dissent evaluates Driessen's termination as one involving disparate treatment. Slip
op. at 12. However, it is incumbent on the complainant to introduce evidence showing that
another employee guilty of the same or more serious offense escaped the disciplinary fate
suffered by the complainant. See Schulte v. Lizza Indus., Inc. , 6 FMSHRC 8, 16 (Jan. 1984);
Chacon, 3 FMSHRC at 2512. Here, Driessen introduced no evidence of disparate treatment,
despite the dissent's attempts to glean such evidence from the record. Finally, in addressing
Nevada Goldfields' grounds for terminating Driessen as an affirmative defense, our dissenting
colleagues invade the fact-flnding province of the judge, slip op. at 16-17, and make credibility
determinations, slip op. at 18, exceeding the Commission's role under the Mine Act. See 30
U.S.C. § 823 (d)(2)(C).
15

The judge declined to consider the December 17 Jetter which Driessen faxed to his
office over a month after the hearing because the record was closed and the parties had elected
not to file briefs. 19 FMSHRC at 158 n.3. The judge did not abuse his discretion in refusing to
consider the letter. See Kerr-McGee Coal Corp., 15 FMSHRC 352,357 (Mar. 1993). In his
PDR, Driessen indicated-that he had attached a copy of the letter to his petition; however none
was attached. The letter submitted to the judge was retained in the record.
16

30 U.S.C. § 823(d)(2)(C) states in pertinent part:
For the purpose of review by the Commission . . . the
record shall include: (i) all matters constituting the record.upon
which the decision of the administrative law judge was based; (ii)
the rulings upon proposed findings and conclusions; (iii) the
decision of the administrative law judge; (iv) the petition or
petitions for discretionary review, responses thereto, and the
Commission's order for review; and (v) briefs filed on review. No
other material shall be considered by the Commission upon review.

332

a second subpoenaed witness, Dan Steely, could testify truthfully because of fear of losing their
jobs. 17 PDR at 3.
Even if the Commission were to treat Driessen's petition and supporting documents as a
motion to reopen the proceedings before the judge-under Rule 60(b)(2) of the Federal Rules of
Civil Procedure,18 he fails to meet the criteria of the rule. Given Driessen's statement that he was
aware prior to the hearing of the issue of the credibility of Rusesky and Steely, whom he
subpoenaed and who were still employed by Nevada Goldfields, he fails to show that the
evidence upon which he now relies was newly discovered and could not have been discovered by
due diligence. See Bruno v. Cyprus Plateau Mining Corp.. 11 FMSHRC 150, 153 (Feb. 1989).
Thus, it is not apparent why Driessen could not have pursued the issue of witness bias in
discovery and used it at trial. Further evincing a lack of diligence, Driessen waited over a month
after Rusesky's purported statement to bring it to the attention of the judge. In these "
circumstances, we deny consideration of Driessen' s post-hearing evidence.

17

It is, of course, a violation to discriminate against any miner who has testified in a
Mine Act proceeding. 30 U.S.C. § 815(c)(l). However, the Commission cannot infer bias on
every occasion a testifying witness is still employed by an operator which is a respondent in a
Mine Act proceeding.
18

Rule 60(b) states, in pertinent part: "On motion and upon such terms as are just, the
court may relieve a party ... from a final judgment, order, or proceeding for the following
reasons: .. . (2) newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b)."

333

III.
Conclusion
For the foregoing reasons, we affirm the judge's dismissal of Driessen's section lOS(c)
complaint.

334

Commissioners Marks and Beatty, dissenting:
We respectfully dissent from our colleagues' decision to affirm the judge's dismissal of
the complaint filed by miner Kenneth Driessen based upon the judge's determination ~at the
discharge of Driessen by Nevada Goldfields, Inc. ("Nevada Goldfields") was in no part
motivated by Driessen's conduct in raising safety complaints relating to the No. 1 ball mill at
Nevada Goldfield's Nixon Fork Mine. See slip op. at 6. We believe that the judge erred in
failing to consider record evidence that, in our view, was clearly sufficient to establish a prima
facie case that Driessen was discharged at least in part because of his protected conduct.
Moreover, we believe that the record compels a conclusion that Driessen was discharged by
Nevada Goldfields because of his protected activity, because Nevada Goldfields failed to either
rebut the prima facie case or establish as an affirmative defense that it was also motivated by
Driessen's unprotected activity and would have discharged him for the unprotected ac.tivity
alone. Accordingly, we would reverse the judge's order dismissing Driessen's complaint, and
conclude that Driessen was discharged for his protected conduct in violation of section 105(c) of
the Mine Act. 19
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. Secretary ofLabor on behalfofPasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2799 (Oct. 1980), rev 'don other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981 ); Secretary ofLabor on behalfofRobinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may rebut the prima facie
case by showing either that no protected activity occurred or that the adverse action was in no
part motivated by protected activity. Robinette, 3 FMSHRC at 818 n.20. If the operator cannot
rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving
that it also was motivated by the miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. ld at 817-18; Pasula, 2 FMSHRC at 2799-800; see
also Easter~ Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,642 (4th Cir. 1987).
Applying these principles, our colleagues in the majority conclude that substantial
evidence supports the judge's conclusion that "Nevada Goldfields' discharge of Driessen was in
no part motivated by his protected activity." Slip. op. at 6 (emphasis added). We cannot concur
in this assessment. In our vie\\!, the judge misapplied the Pasula-Robinette test by failing to
initially consider whether a prima facie case was established that Driessen's discharge was
motivated in any part by the protected activity that he undisputably engaged in. Instead of first
analyzing this issue independently, as Pasula-Robinette requires, the judge jumped ahead to the
19

Section 105(c)(1) prohibits an operator from discharging or discriminating against a
miner because he "has filed or made a complaint under or related to this Act, including a
complaint notifying the operator or the operator's agent . .. of an alleged danger or safety or
health violation in a coal or other mine ...." 30 U.S.C. § 815(c).

335

second step of the analysis, and determined that he believed Nevada Goldfield's explanation that
Driessen was discharged solely on the basis of his failure to perform three work assignments on
the evening of February 6-7, 1996. 19 FMSHRC 157, 160, 164 (Jan. l997)(ALJ). As a result of
his improper combination of the first and second steps of the Pasula-Robinette test, th~ judge
failed to consider compelling record evidence indicating that the discharge of Driessen was
motivated at least in part by his protected conduct. We believe that the Commission majority
commits the same error as the judge by ignoring this strong evidence that the discharge of
Driessen was unlawfully motivated at least in part, and focusing instead on Nevada Goldfield's
rebuttal explanation, based upon Driessen's alleged insubordination, in upholding the judge's
conclusion that Driessen failed to make out a prima facie case under Pasula-Robinette. See slip
op. at 6-8.
In our view, the majority also fails to consider Commission precedent which P,rovides us
with an analytical framework for determining whether a prima facie case of unlawful motivation
has been established in cases involving alleged discriminatory conduct under section 105(c) of
the Act. In a prior ruling, the Commission recognized the problems associated with establishing
a motivational nexus between the complainant's protected activity and adverse action taken by
the operator. Secretary ofLabor on behalfofChacon v. Phelps Dodge Corp., 3 FMSHRC 2508
(Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983). "Direct evidence of
motivation is rarely encountered; more typically, the only available evidence is indirect. . . .
'Intent is subjective and in many cases the discrimination can be proven only by the use of
circumstantial evidence."' !d. at 251 0 (quoting NLRB v. Melrose Processing Co., 3 51 F .2d 693,
698 (8th Cir. 1965)). In Chacon, the Commission held that discriminatory intent can be
established by circumstantial evidence of: (1) knowledge of the protected activity; (2) hostility
or animus towards the protected activity; (3) coincidence in time between the protected activity
and the adverse action; and (4) disparate treatment of the complainant. !d. A review of the
record evidence in this case shows support for each of the elements set forth in Chacon.
With respect to the first factor, the record indicates that on January 25, 1996, Driessen
initially raised concernsjtbout the condition ofthe ball mill. 19 FMSHRC at 160. Additionally,
on the morning ofhis discharge, February 7, 1996, Driessen presented Nevada Goldfields
management with a report outlining his continuing concerns about the safety of the ball mill. !d. ·
at 159. Two safety complaints communicated directly to management within a two week period
is more than sufficient to establish the operator's knowledge of the employee's protected activity.
The record also indicates that Nevada Goldfields had previously demonstrated hostility to
the protected conduct of Driessen in raising concerns about the safety of operating the ball mill.
On the morning of January 25, after Driessen had initially raised concerns the night before about
the condition of the ball mill, and the danger of restarting it, he was reproached by maintenance
supervisor Botnan and mine manager Swanson. Jd. at 160. The record shows that Driessen was
rebuked for failing to follow procedures set forth in Nevada Goldfields' employee handbook by
reporting the problem to mill superintendent Mike Rusesky rather than Botnan, his immediate

336

supervisor. ld at 160-61.20 Botnan criticized Driessen for making "million dollar decisions,"
such as shutting down the ball mill, without going through ''the standard procedures" by
informing Botnan or Swanson. Tr. 140. The record indicates, however, that it was mill
superintendent Rusesky, not Driessen, who made the decision in the early morning hours of
January 25 not to restart the ball mill, without consulting Botnan or Swanson, who were both
asleep at the time?' 19 FMSHRC at 160. Therefore, if anyone was to blame for deciding not to
restart the ball mill without consulting with other management officials, it was Rusesl<y, and not
Driessen. There is no evidence, however, indicating that Rusesky was disciplined for failing to
follow company policie~. 22 This hostility demonstrated by Nevada Goldfields officials to
. Driessen for raising a safety concern about the possible danger of restarting the ball mill, even
though it was Rusesky who ultimately made the decision not to restart the mill, strongly suggests
that the operator harbored a strong animus in connection with Driessen's protected conduct in
iPitially questioning the safety of operating the ball mill. This hostility was further reflected in
Botnan's remark to Driessen, at the time of his February 7 discharge, that, "I've had enough of
your disasters." Tr. 104.
Apart from the aforementioned, it is evidence supporting the third factor of the Chacon
analysis that, standing alone, warrants a remand of this case. The record establishes that Driessen
was discharged on the morning of february 7; 19~6, moments after he presented Nevada
Goldfields' vice-president Joe Kercher with a report he had prepared that reflected his continuing
concerns about the safety of the mill. Tr. 27. Kercher immediately consulted with maintenance
supervisor Ted Botnan and mine manager Mel Swanson, who made a collective decision to fire
Driessen. 19 FMSHRC at 164. The stated reason for the discharge was Driessen's
insubordination in failing to perform three tasks assigned to him the night before and working on

20

The employee handbook provides, in pertinent part: "If you have a problem or
concern, you should discuss it with your supervisor first." Ex. Hat 5. Maintenance supervisor
Botnan was ~e direct supervisor of the mechanics, including Driessen. Tr. 127, 130. Botnan
testified that, according to company procedure, either he or mine manager Swanson should have
been consulted before the decision wa~ made not to restart the ball mill. 19 FMSHRC at 161 ; Tr.
140, 152. The record also indicates, however, that when Driessen initially notified Rusesky of
his safety concerns relating to the ball mill, in the ear~y morning hours of January 25, Botnan and
Swanson were both in the mining camp asleep. Tr. 112-14, 119, 171.
Rusesky testified that h was 3:30a.m. on the morning of January 25 when he was
notified of the problem with the ball mill, and that he decided to wait until 6:30 a.m., when
Swanson, his boss, would be on the scene to make any further decision about restarting the mill.
Tr. 114.
21

22

Although Rusesky agreed that Mine Manager Swanson "got mad" at Rusesky for not
informing Swanson immediately about the shut down of the ball mill on the night of January 2425 (Tr. 114, 119-20), contrary to the majority's assertion (slip. op. at 6 n.7), there is no evidence
that Rusesky received a verbal reprimand or any other formal discipline as a result.

337

another matter on which he had not been told to work.23 Botnan then told Driessen: "Pack your
stuff. You're out of here." Tr. 104-05. Driessen was not afforded an opportunity to discuss his
safety concerns, nor was he considered by the Nevada Goldfields officials to be a candidate for
any progressive discipline mandated by the same employee handbook that he allegedly violated a
week earlier.
In determining whether the timing between the reporting of safety concerns and a
discharge implies a discriminatory intent, we again find guidance in Chacon. In that case, the
Commission held that complaints ranging from four days to one and one-half months before the
discharge were sufficiently coincidental in time to indicate an illegal motive. 3 FMSHRC at
2511 . In Donovan on behalfofAnderson v. Stafford Constr. Co., 732 F.2d 954 (D.C. Cir. 1984),
the D.C. Circuit Court of Appeals, noting that two weeks had elapsed between the alleged
protected activity and the miner's dismissal, held that "[t]he fact that the Company's adverse
action against [the miner] so closely followed the protected activity is itself evidence of an illicit
motive." /d. at 960; see also Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 530-31 (Apr.
1991 ), and cases cited. A discharge which occurs moments after reporting a safety complaint
would certainly fall into the time frames established in Chacon.
The final inquiry in evaluating the possibility of discriminatory intent in the context of a
section 10~( c) case is disparate treatment of the complainant. Disparate treatment of Driessen is
evident in this case because, as noted, his discharge was also inconsistent with the progressive
disciplinary policy provided for in the employee handbook distributed by Nevada Goldfields,
which provides:

DISCIPLINARY ACTIONS
Disciplinary actions are obviously a last resort that we hope to avoid
through sound work habits, a good working knowledge of rules,
regulations and good communications at all levels. Every
· reasona~/e effort will be made to use progressive discipline in
dealing with violations, administered as fairly as possible. Steps of
progressive discipline at [Nevada Goldfields] include:
(a) verbal warning or correction
(b) written reprimand with a copy placed in the offender's personnel file

23

The latter matter involved the flange on the ball mill, which Driessen had been
specifically instructed by mine manager Swanson not to cut. 19 FMSHRC at 164. As our
colleagues acknowledge, however, the judge did not find that Driessen disobeyed these
instructions and cut the flange on the night of February 6-7. Slip op. at 7 n.9.

338

(c) written reprimand and suspension with pay; and
(d) dismissal.
Ex. H at 6 (emphasis added).
In this case, there is no evidence that Driessen had ever previously received apy form of
discipline (verbal warning, written reprimand, or suspension) during his period of employment
with Nevada Goldfields. This is particularly noteworthy in view of testimony from Botnan that
several incidents occurred involving Driessen, prior to the incidents which lead to his discharge,
where he had refused to work on jobs as requested. Tr. 130-34. In those instances, there was no
evidence that Driessen received any type of discipline from Nevada Goldfields. This selective
application of discipline for alleged insubordinate condt1ct is indicative of discriminatory intent.
Moreover, until the time that he first reported safety concerns about the ball mill in January 1996,
Driessen was regarded by Nevada Goldfields management as a capable and valued employee?4
This sudden and marked change in the attitude of management regarding Driessen's capabilities
as an employee, and the operator's failure to adhere to its own progressive disciplinary policy in
discharging him, provide additional evidence that Driessen was discharged in retaliation for his
protected conduct.25

24

Personnel records for Driessen indicate that on December 8, 1995, less than two
months after he began working for Nevada Goldfields, Driessen received a $1.00 an hour pay
raise, from $16.00 to $17.00 an hour. Ex. 2 at 11. Mine manager Swanson testified that a
portion of this pay raise (50 cents per hour) was intended to correct an administrative error in the
hourly wage originally paid to Driessen, but that the remainder was a merit raise tied to the fact
that Driessen made the second rotation, which Swanson described as "an accomplishment." Tr.
166. The comment section on the form, which was signed by both Botnan and Swanson, states:
"Do not want- him to leave- excellent all around mech[anic.]" Ex. 2 at 11. Dan Steely, a float
operator for Nevada Goldfi.elds, testified that Driessen "did a good job for us." Tr. 122. Indeed,
even Nevada Goldfield's counsel conceded at the hearing that Driessen was "a competent
mechanic. . . . And in a place like Nixon Fork Mine or any remote location in Alaska, you don't
expect perfection." Tr. 204.
25

While the majority claims that "Driessen introduced no evidence of disparate
treatment" (slip op. at 8 n.l4), Nevada Goldfields' failure to adhere to its established disciplinary
policy in discharging Driessen is apparent from even a cursory examination of the above-quoted
section of the employee handbook introduced into evidence by the operator. Although Driessen
was represented by counsel at the hearing in this case, his counsel inexplicably failed to argue or
even note that Nevada Goldfields failed to adhere to the progressive disciplinary system provided
for in the employee handbook in discharging Driessen. As noted above, however, this employee
handbook is included in the record in this case and Nevada Goldfields has relied upon other
provisions of that handbook to support its claim that Driessen failed to follow company policy in
raising his initial concerns about the safety of the ball mill.

339

Despite this demonstrated failure to adhere to the progressive disciplinary system set forth
in Nevada Goldfields' employee handbook, our colleagues in the majority inexplicably conclude
that "Driessen's termination was not inconsistent with the company's employee handbook,"
relying on provisions dealing with the willingness of employees to take directions and -listed
examples of employee misconduct, and finding that the handbook explicitly gives the company
discretion to dismiss an employee for serious violations without first instituting progressive
disciplinary measures. Slip op. at 7 n.l 0. This latter reference is presumably to language in the
"Disciplinary Actions" section that provides: "Any or all of the first three [progressive ·
disciplinary] steps may be omitted. depending upon the seriousness of the violation." Ex. Hat 6
(emp~asis added). The mere existence of this provision, however, begs the question of whether
Driessen' s purported failure to complete the three tasks assigned to him on the night of February
6-7 was a serious enough infraction to warrant immediate discharge, in contravention of the
progressive disciplinary system that Nevada Goldfields has committed to make "[e]very
reasonable effort" to follow.26 ld The available evidence strongly suggests that this was not the
case. For instance, referring to the three tasks purportedly assigned to Driessen on the night shift
ofFebruary 6-7, maintenance supervisor Botnan testified that he "never minded if a guy didn't do
any of [the assigned tasks,] but at least some attempt to try to do them is good enough for me."
Tr. 151 . This testimony hardly suggests an attitude on the part of Nevada Goldfields
management that the failure to perform assigned work tasks was considered a serious form of
employee misconduct that warranted immediate discharge. This is particularly true given
Botnan' s earlier testimony that Driessen had failed to perform work on other occasions, none of
which he was disciplined for according to the record.
In our view, the coincidence in timing between Driessen's protected activities and his
subsequent discharge, which was not addressed by the judge, is alone sufficient to establish a
prima facie case that his discharge was motivated at least in part by his protected conduct. It is
also evident from the record, however, that this case supplies evidence sufficient to meet all
elements of the Chacon test for determining discriminatory animus in section lOS(c) cases. We
therefore conclude that the judge erred in failing to consider the foregoing evidence and in
concluding that Driessen failed to establish a prima facie case that his discharge was motivated at
least in part by his protected conduct.

26

The majority concludes that Driessen's conduct on the night of February 6-7
"exhibited a clear disregard for the orders given by his supervisors," and thus amounted to a
transgression of sufficient seriousness to warrant an exception to Nevada Goldfields' progressive
disciplinary policy. Slip op. at 7 n.lO. This determination, however, violates the majority's own
admonition against "invad[ing] the fact-finding province of the judge" (slip op. at 9 n.l4), since
the judge never analyzed the question of Nevada Goldfields' failure to adhere to its progressive
disciplinary policy in discharging Driessen, or whether it was warranted in doing so.

340

Since, in our view, there :was ample evidence to establish a prima facie case that the
discharge of Driessen was motivated at least in part by his protected conduct, 27 the burden shifted
to Nevada Goldfields to either rebut this prima facie case by showing that the discharge was in no
part motivated by his protected activity, or to establish as an affirmative defense that it. was
motivated by unprotected activity on the part of Driessen and would have discharged him for that
unprotected activity alone. Robinette, 3 FMSHRC at 817-18; Pasu/a, 2 FMSHRC at 2799-800;
see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d at 642. In order to prevail on an
affirmative defense based upon the purported insubordination of Driessen in failing to perform the
three tasks that it claims were assigned to him on the night shift of February 6-7, Nevada
Goldfields was required to demonstrate that it would have discharged Driessen for this conduct
alone, irrespective of his protected conduct. To meet this burden, Nevada Goldfields was required
to show that it considered an employee's failure to perform assigned tasks to be a particularly
serious form of insubordination that warranted immediate discharge. We believe that.the selfserving testimony of maintenance supervisor Botnan (Tr. 130) and mine manager Swanson (Tr.
186) that Driessen was discharged solely because of his failure to perform the three tasks allegedly
assigned to him, and that Driessen' s safety complaints did not influence that decision, was hardly
sufficient in itself to overcome the persuasive amount of evidence in this case supporting a prima
facie case of discriminatory intent on the part of Nevada Goldfields, or support its position that
Driessen would have been discharged solely for his unprotected conduct. Moreover, this
testimony is directly inconsistent with other testimony of Botnan indicating that Nevada
Goldfields did not have a steadfast policy of requiring that all tasks assigned during a particular
27

Although we believe that the existing record compels a conclusion that Driessen was
discharged because of his protected conduct, we also believe that the majority erred in not
reopening the record to consider the letter submitted by Driessen to the judge following the
hearing, and the affidavit attached to his petition for discretionary review, in which he alleges
that, following the hearing, mill superintendent Rusesky told Driessen that Driessen was fired for
raising safety complaints concerning the ball mill and that Rusesky had been threatened by mine
manager Swanson with discharge if he brought this up at the hearing. Driessen Aff. dated Jan.
29, 1997. We believe that t4is evidence is entitled to consideration under Rule 60(b)(2) of the
Federal Rules of Civil Procedure, which allows the consideration of"newly discovered evidence
which by due diligence could not have been discovered in time to move for a new trial under
Rule 59(b)." Fed. R. Civ. P. 60(b)(2). Contrary to the Commission majority (slip op. at 9), we
find that the statements attributed to Rusesky, which were not even allegedly made to Driessen
until after the hearing, clearly qualify as newly discovered evidence that could not with due
diligence have been discovered previously within the meaning ofRule 60(b)(2). We believe that
the statements attributed to Rusesky in the Driessen affidavit involve serious allegations of
witness bias, and if true would provide additional evidence that the discharge of Driessen was
unlawfully motivated. We also note that in a rebuttal affidavit attached to Nevada Goldfields'
response brief, Rusesky did not directly deny having made the statements attributed to him by
Driessen, but only stated that he could not "recall verbatim what was said" at a meeting with
Driessen and Dan Steely, another Nevada Goldfields' employee, following the hearing. Rusesky
Aff. dated April 30, 1997, at 2.

341

shift were entirely _completed, and thus did not regard the failure to complete work assignments as
a particularly egregious form of misconduct warranting immediate discharge?8
For the foregoing reasons, we would reverse the judge's order dismissing Driessen's
complaint, conclude that Driessen has established a prima facie case that his discharge was
motivated at least in part by his protected conduct, and further conclude that the record compels a
conclusion that Driessen was discharged for his protected conduct in violation of section I 0~(c) of
the Mine Act in light of the failure ofNevada Goldfields to either rebut the prima facie case or
establish as an affirmative defense that it was also motivated by Driessen's unprotected activity
and would have discharged him for the unprotected activity alone.

Marc Lincoln Marks, Commissioner

Robert H. Beatty, Jr., Commission

28

As noted above, maintenance supervisor Botnan testified that he "never minded if a
guy didn't do any of [the assigned tasks,] but at least some attempt to try to do them is good
enough for me." Tr. 151.

342

Distribution

Kenneth Driessen
Rt. 1, Box 374
Baraga, MI 49908
Parry Grover, Esq.
Davis, Wright, Tremaine, LLP
550 W . 711t Avenue, Suite 1450
Anchorage, AK 99501 ·
Administrative Law Judge T . Todd Hodgdon
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

343

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

April 30, 1998

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

v.

Docket Nos. KENT 94-944-R
KENT 94-1052

TOPPER COAL COMPANY, INC.
BEFORE: Jordan, Chainnan; Marks, Riley, Verheggen, and Beatty, Commissioners
DECISION
BY THE COMMISSION:
This consolidated contest and civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involves
an alleged significant and substantial ("S&S") violation by Topper Coal Company, Inc.
("Topper"), of section 103(a) of the Mine Act, 30 U.S.C.§ 813(a), 1 for impeding a spot

1

Section 103(a) provides, in part:
Authorized representatives of the Secretary .. . shall make.
frequent inspections and investigations in coal or other mines each
year for the purpose of ... (4) determining whether there is
compliance with the mandatory health or safety standards or with
any citation, order, or decision issued under this [title] or other
requirements of this [Act]. In carrying out the requirements of this
subsection, no advance notice of an inspection shall be provided to
any person . . . . In carrying out the requirements of clause[] ...
(4) of this subsection, the Secretary shall make inspections of each
underground coal or other mine in its entirety at least four times a
year . . . . The Secretary shall develop guidelines for additional
inspections of mines based on criteria including, but not limited to,
the hazards found in mines subject to this [Act], and his experience
under this [Act] and other health and safety laws. For the purpose
of making any inspection or investigation under this [Act], the

344

inspection for smoking materials.2 Administrative Law Judge T. Todd Hodgdon concluded that
Topper violated section 103(a) and that the violation was S&S, ·and assessed a $5,000 civil
penalty. 17 FMSHRC 945 (June 1995) (ALJ). The Commission granted Topper's petition for
discretionary review ("PDR") challenging the judge's conclusions. For the following reasons,
we affirm, in result, the judge's decision.

I.
Factual and Procedural Back~<mnd
Topper operates the No. 9 underground coal mine in Knott County, Kentucky. Pet. for
Assessment of Civil Penalty at 1. On May 19, 1994, Howard Williams, Elmer Hall, Jr., and
Ronald Honeycutt, inspectors with the Department of Labor's Mine Safety and Health
Administration ("MSHA"), arrived at the mine to conduct a spot saturation inspection for
smoking materials. 17 FMSHRC at 946. The inspection was part of MSHA' s smoking
prevention initiative, which was instituted in response to recent underground mine explosions
caused by smoking. Tr. 116. Under the initiative, MSHA inspected 175 mines in Kentucky,
Tennessee, Virginia, and West Virginia. Tr. 117.
The inspectors arrived during mid-shift so they would not be observed by the miners. Tr.
118. Upon entering the mine office, Inspector Hall told Gary Fields, the president of Topper, that
they were there to conduct an inspection and instructed him not to telephone underground to alert
the miners that they were coming. 17 FMSHRC at 946; Tr. 14-15, 68. Then Inspectors Hall and
Honeycutt crawled into the mine to conduct the inspection3 while Inspector Williams remained in
the mine office to monitor the telephone. 17 FMSHRC at 946; Tr. 18-19, 68.

Secretary, ... or any authorized representative of the Secretary
...., shall have a right of entry to, upon, or through any coal or
othermine. ··
2

Smoking materials are prohibited by section 317(c) of the Mine Act, 30 U.S.C.

§ 877(c), which states:
No person.shall smoke, carry smoking materials, matches,
or lighters underground, or smoke in or around oil houses,
explosives magazines, or other surface areas where such practice
may cause a fire or explosion. The operator shall institute a
program, approved by the Secretary, to insure that any person
entering the underground area of the mine does not carry smoking
materials, matches, or lighters.
3

The coal seam ranged from 36 to 42 inches high. Tr. 69. The inspectors crawled
approximately 2,500 feet over 30 to 40 minutes to reach the working section. Tr. 70.

345

About 15 to 20 minutes after Inspectors Hall and Honeycutt went underground, Fields
telephoned the working section and told a miner that "two federal inspectors'' were in the mine
and that he wanted the miners to ''watch out and be careful." 17 FMSHRC at 946; Tr. 177.
After hanging up, Fields explained to Inspector Williams that he was concerned that, absent the
warning, the miners might not see the inspectors and might run over them with a shuttle car. 17
FMSHRC at 946; Tr. 19, 177-78.
Inspectors Hall and Honeycutt, about 20 to 25 minutes after going underground,
intercepted two miners cleaning up accumulations around a belt. Tr. 85. They took the two
miners to the working section and, with the assistance of the section foreman, gathered the
remaining seven miners. Tr. 70, 71. The miners were then searched, but no smoking materials
were found. 17 FMSHRC at 947; Tr. 71-72.
As a result of Fields' telephone call alerting the miners underground that the inspectors
were coming, Inspector Williams issued Topper Citation No. 4243301, pursuant to section
104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of section 103(a) for impeding
the inspection. 17 FMSHRC at 946; Jt. Ex. 1, at 1. 4 The citation was later modified to increase
the gravity of the violation to S&S, reflecting that it was "reasonably likely" to cause injury or
illness that could be "fatal," and to increase the level of negligence to "reckless disregard." Jt.
Ex. 1, at 2. Topper contested the issuance of the citation. The Secretary subsequently proposed a
civil penalty assessment of $8,500 for the alleged violation and Topper challenged the proposed
assessment. 17 FMSHRC at 945.
Following an evidentiary hearing, the judge concluded that Topper violated section
103(a). /d. at 947-51. He based his determination on the "right of entry" provision in section
103(a), which he concluded prohibits impeding or interfering with an inspection. /d. at 947-50.
The judge found that, by alerting the miners that the inspectors were coming, Fields obstructed
the inspection. /d. at 950. He found that Fields had understood the inspectors' instructions not
to call underground and he discredited Fields' testimony that he had called for safety reasons. /d.
at 950-51. The judge reasoned that Fields had not expressed concern before calling, he did not
need to identify the people entering the mine as "federal inspectors," and his belief that the
inspectors were already at the working section was inconsistent with his belief that there would
be a safety purpose in alerting the miners to their arrival. /d.
In addition, the judge conduded that the violation was S&S. /d. at 951-53. He
recognized that "[t]he problem with trying to assess this violation under the traditional criteria is
that there is no way of knowing what the inspectors would have found if the miners had not been
alerted to their presence." /d. at 95~. He accepted the Secretary' s argument that "[t]he

4

In addition, two citations were issued for alleged violations of30 C.F.R. § 75.360 for
failure to record a preshift examination and 30 C.F.R. § 75.400 for failure to clean up coal and
coal dust accumulations around a shuttle car. 17 FMSHRC at 947; Tr. 73-74; S. Br. at 4, 26.
These charges are not part of this proceeding.

346

Secretary's right of entr:J is the mechanism by which the entire Act is enforced" and the denial of
entry, directly or indirectly, is presumptively S&S because the inspector would be "unable to
determine the number and the type of violative conditions which pose serious hazards to miners
working underground and to ensure that these hazards are eliminated." Jd (quoting S. PostHearing Br. at 10). The judge reasoned that "the logical consequence of warning underground
miners that inspectors are on their way underground would be for the miners to attempt to coverup, dispose of, or even correct any violations of which they are aware." ld at 953. He concluded
that, when an inspection is impeded, "it is reasonably likely that an S&S violation would have
been discovered," and, thus; "there is a presumption that the violation [of section 103(a)] is
S&S." Jd He also found that Topper did not present any evidence to rebut the presumption. ld.
Finally, after considering the criteria set forth in section llO(i) of the Mine Act, 30 U.S.C.
§ 820(i), the judge assessed a $5,000 civil penalty against Topper. 17 FMSHRC at 955. He
found that Topper was a small operator and that the violation was the result of high negligence,
concluding that Fields' conduct was intentional and that there were no mitigating circumstances.
Id at 953-55.

II.
Disposition
A.

Violation

Topper argues that it did not deny the inspectors the right to enter the mine or impede the
inspection. PDR at 2; T. Br. at 4-5. It contends that 2 of the 10 miners, i.e., the miners working
at the belt, were not aware that MSHA inspectors were coming underground, so they did not have
the opportunity to dispose of any smoking materials. PDR at 2. Moreover, it asserts that, even if
Fields had not alerted the miners to the inspectors' presence, some of them might have seen the
inspectors gathering the other miners and would have had the opportunity to dispose of any
smoking materials. T Br. at 5. _Topper argues that MSHA had no reason to suspect that its
miners were smoking underground or that its smoking material search plan was inadequate. /d.
at 6. It asserts that Fields was concerned about the safety of the miners and the inspectors. ld
The Secretary responds that substantial evidence supports the judge's finding that Fields'
warning to the miners that inspectors were coming, contrary to the inspectors' instructions,
impeded the inspection in violation of section 103(a). S. Br. at 8-20. She asserts that, in so
doing, Fields eliminated the element of surprise, which the unannounced inspection was designed
to ensure. /d. at 13. The Secretary states that, because smoking materials can be easily
concealed, advance notice of an inspection can frustrate enforcement efforts. ld at 9-11. In
addition, she argues that miners have a strong incentive to conceal smoking materials because

347

they can be held personally liable under section 110(g) of the Mine Act, 30 U.S.C. § 820(g).s /d.
at 12. Regarding the two miners working at the belt and the miners at the working section who
might have seen the inspectors gathering miners, the Secretary argues that section 103(a) is
violated whether an inspection is completely prevented or merely hindered. /d. at 14-15. In
addition, she asserts that the judge properly discredited Fields' testimony that, in telephoning
underground, he was motivated by safety concerns. /d. at 16-17.
·Although the focus of the judge's decision and the parties' arguments is whether Topper
violated the "right of entry" provision in section 103(a), we conclude that the "no advance
notice" provision of section 103(a) is applicable to this case. Section 103(a) explicitly provides
that "no advance notice of an inspection shall be provided to any person." Here, the record
indicates that the inspectors specifically instructed Fields not to notify the miners of their arrival.
Tr.15,31-32,67-68, 82-83,105-06,112,173,196-97. It is undisputed that Fields intentionally
disregarded these instructions by calling underground to warn the miners that "federal
inspectors" were coming. Tr. 173, 176-77, 196-97. Fields' .warning of the inspection clearly is
sufficient to establish a violation of the "no advance notice" language.
We do not accept Topper's defense that the warning was provided solely due to Fields'
concern that the unannounced inspection might cause injury to the miners or the inspectors. T.
Br. at 6. The judge specifically discredited Fields' testimony that he had called for safety
reasons. 17 FMSHRC at 950-51. A judge's credibility determinations are entitled to great
weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 153 7,
1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The
Commission has recognized that, because the judge has an opportunity to hear the testimony and
view the witnesses, he is ordinarily in the best position to make a credibility determination. In
re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1815, 1878 (Nov.
1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713,719 (11th Cir. 1984)). The judge soundly
rejected Fields' excuse, and we find no basis to overturn his ruling on that issue.

5

Section 11 O(g) provides:
Any miner who willfully violates the mandatory safety
standards relating to smoking or the carrying of smoking materials,
matches, or lighters shall be subject to a civil penalty assessed by
the Commission, which penalty shall not be more than $250 for
each occurrence of such violation.

348

Based on the foregoing, we conclude that substantial evidence6 supports the judge's
detennination that Topper violated section 103(a). Accordingly, we affirm, in result, the judge's
holding.

B.

Penalty

Topper argues that, under MSHA's penalty assessment regulations set forth in 30 C.F.R.
Part 100, the violation was the result of only moderate negligence. PDR at 3; T. Br. at 8-9. It
asserts that mitigating factors are that Fields was unaware of the reason for the inspection or the
requirements of section 103(a), and that he was concerned about the safety of the miners and the
inspectors. PDR at 3; T. Br. at 9. Moreover, noting that in Cougar Coal Co., 17 FMSHRC 628
(Apr. 1995) (ALJ), a penalty amount of $1,000 was assessed under identical circumstances,
Topper asserts that it is a smaller operator than Cougar and should be assessed a smaller penalty
of $250. PDR at 4; T. Br. at 9-10.
The Secretary responds that substantial evidence supports the judge's finding that the
violation resulted from high negligence. S. Br. at 30. She asserts that Fields knew of the
violation because he understood the inspectors' instructions not to call underground and
recognized their desire to ensure the element of surprise in the inspection, but nevertheless
deliberately disregarded those instructions. ld In addition, the Secretary argues that there were
no mitigating circumstances. !d. at 31 .
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 proper consideration of the penalty criteria set forth in
section 110(i) of the Mine Act. 7 Id (citing Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (Mar.

6

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). "Suostantial evidence" means "such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion." Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159,2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
u.s. 197,229 (1938)).
7

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 previous 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

349

1983), aff'd, 736 F.2d 1147 (7th Cir. 1984)). With regard to the criterion of negligence, the
Commission has recognized that a fmding of high negligence ''suggests an aggravated lack of
care that is more than ordinary negligence." Eastern Associated Coal Corp., 13 FMSHRC 178,
187 (Feb. 1991). In particular, the Commission has held that an operator's intentional violation
constitutes high negligence for penalty purposes. Consolidation Coal Co., 14 FMSHRC 956,
969-70 (June 1992) ("Consol Penalty Case"). Here, we conclude that substantial evidence
supports the judge's penalty determination.
We fmd unavailing Topper' s argument that, under MSHA' s penalty assessment
regulations set forth in 30 C.F.R. Part 100, the violation was the result of only moderate
negligence. PDR at 3; T. Br. at 8-9.8 We are unpersuaded by Topper's argument that Fields'
negligence was mitigated by the fact that he was unaware of the reason for the inspection or the
requirements of section 103(a), and that he was concerned about the safety of the miners and the
inspectors. PDR at 3; T. Br. at 9. Fields intentionaily disregarded the inspectors ' instructions not
to call underground to alert the miners. 17 FMSHRC at 950. As the judge recognized, Fields'
purported ignorance of the inspection' s purpose does not reduce the level of negligence because
he knew that the inspectors did not want him to alert the miners. !d. at 954. Moreover, as we
have explained, the judge explicitly rejected Fields' testimony that he had called for safety
reasons.9
Based on the foregoing, we conclude that substantial evidence supports the judge' s
detennination that the violation resulted from high negligence. Accordingly, we affinn the
judge' s holding and penalty assessment.
C.

Siinificant and Substantial

Topper argues the judge erred in concluding that "when an inspection is impeded there is
a presumption that the violation is S&S." PDR at 2-3 (quoting 17 FMSHRC at 953). Citing
Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), Topper contends that, in this case, there is no
evidence that the all~ged violation would have contribut.ed to the hazard of explosion, which

notification of the violation.
30

u.s.c. § 820(i).
8

It is well settled that the Commission is not bound by the penalty assessment
regulations adopted by the Secretary. Rather, the Commission detennines de novo the amount of
the penalty based on the criteria of section IIO(i). Sellersburg, 5 FMSHRC at 291 , aff'd, 736
F.2d at 1152.
9

With regard to Topper' s reference to the Cougar case, we note that Commission
Procedural Rule 72,29 C.F.R. § 2700.72, provides that unreviewed administrative law judge
decisions are not precedent binding upon the Commission.

350

would be reasonably likely to result in injury. Id at 2; T. Br. at 7-8. It points out that the mine
has no history of methane liberation and, with respect to the two miners with whom there was no
interference in the inspection, no smoking materials were found. PDR at 3; T. Br. at 7-8.
The Secretary responds that the judge properly determined that section 103(a) violations
are presumptively S&S. S. Br. at 21-25. The Secretary contends that the violation is very serious
because MSHA's authority to inspect is essential to the enforcement scheme of the Mine Act. !d.
at 21. She asserts that, under Mathies, a section 103(a) violation contributes to a measure of
danger to the safety of miners because it impedes an inspection, thus increasing the likelihood
that violations will go undetected and placing miners at greater risk of working in unsafe
conditions, which in the course of continued mining operations would be reasonably likely to
result in serious injury. !d. at 21-22. She contends that, because it is impossible "in the vast
majority of cases" for MSHA to establish that it would have detected S&S violations if the
inspection had not been impeded, it is "only fair" to presume that the section 103(a) violation is
S&S. !d. at 23-24. In addition, the Secretary argues that substantial evidence supports the
judge's finding that Topper failed to rebut the presumption that the violation was S&S. Id at 2529.
Three Commissioners agree that the violation is S&S. Chairman Jordan and
Commissioner Marks vote to adopt the presumption that violations of the advance notice
prohibition of section 103(a) are S&S. Commissioner Beatty votes to reject the presumption and
concludes that the violation is S&S based on substantial evidence under the Mathies test.
Commissioners Riley and Verheggen vote to reverse the judge's S&S determination. The effect
of this vote is that the judge's S&S determination is affirmed in result. The separate opinions of
the Commissioners on the S&S issue follow.

351

m.
Separate Opinions of the Commissioners
Chairman Jordan and Commissioner Marks, in favor of affirming the judge's S&S
determination:
Unannounced miJ?.e inspections are a fundamental component of the Mine Act's statutory
scheme. In discussing the importance of unannounced inspections under section 103(a), the
Senate Report accompanying the passage of the Mine Act states:
[I]t is important that . .. no advance notice of an inspection be
given to any person... .

The Committee intends to grant a broad right-of-entry to the
Secretaries or their authorized representatives to make inspections
and investigations of all mines under this Act without first
obtaining a warrant. . . . The Committee notes that despite the
progress made in improving the working conditions of the nation's
miners under present regulatory authority, mining continues to be
one of the nation's most hazardous occupations. Indeed, in view of
the notorious ease with which many safety or health hazards may
be concealed if advance warning of inspection is obtained, a
warrant requirement would seriously undercut this Act's
objectives. 1
S. Rep. No. 181 , 9~th Cong., 1st Sess. 26-27 (1977), reprinted in Senate Subcommittee on
Labor, Committee OJ?. Human Resources ("Senate Committee" or "Committee"), 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 614- 15 (1978)
("Legis. Hist.") (emphasis added). The Committee expressly rejected the provision of the
Federal Metal and Nonmetallic Mine Safety Act of 1966, 30 U.S.C. § 721 et seq. (1976), which
permitted such advance notice. L~gis. Hist. at 615.

1

In Donovan v. Dewey, 452 U.S. 594 (1981), the Supreme Court upheld a Fourth
Amendment challenge to the warrantless inspection requirement of section 103(a), finding that
"Congress could properly conclude: '[I]f inspection is to be effective and serve as a credible
deterrent, unannounced ... inspections are essential. In this context, the prerequisite of a
warrant could easily frustrate inspection."' Jd. at 603 (quoting United States v. Biswell, 406 U.S.
311 ;3 16 (1972)).

352

The critical importance Congress attached to this prohibition is underscored by section
11 0(e) of the Mine Act, which provides that "any person who gives advance notice of any
inspection to be conducted under this [Act] shall, upon conviction, be punished by a fine of not
more than $1,000 or by imprisonment for not more than six months, or both." 30 U.S.C. §
820(e) (emphasis added). In contrast, violations of a mandatory health or safety standard must
either be ''willfully" conunitted by an operator or "knowingly authorized, ordered, or carried out"
by a corporate "director, officer or agent" to warrant criminal sanctions. See 30 U.S.C. § 820(c),
(d).

It is against this background that we turn to the question of whether the violation of
section 103(a)~ based on the advance notice of_the inspection, was appropriately designated S&S.
A.

Employing a Presumption to Find Violations of Section 103(a) S&S

The S&S terminology is taken from sections 104(d)(1) and (e) of the Mine Act, 30 U.S.C.
§ 814(d)(1), (e), which provide special consequences for violations that "could significantly and
substantially contribute co the cause and effect of a ... mine safety or health hazard ...." The
Commission has held that a violation is S&S if, based on the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature. Cement Div., Nat'/ Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981 ). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Conunission further
explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety- contributed to by the violation; (3) a
-reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

Id at 3-4 (footnote omitted); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F .3d 133, 135 (7th
Cir. 1995) (approving Mathies criteria); Austin Power, Inc. v. Secretary ofLabor, 861 F.2d 99,
103 (5th Cir. 1988) (same). The Conunission also has held that an evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining operations. US. Steel
Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
In this case, the judge acknowledged that the Mathies criteria did not provide an
appropriate analytical framework for determining the seriousness of this violation. See 17

353

FMSHRC at 952. He concluded that it was appropriate to apply a presumption of S&S to
violations of that part of section 103(a) prohibiting advance warning of inspections.2 ld at 953.
We agree that the Mathies criteria fail to provide a framework for determining the
seriousness of such violations. 3 In this instance, it is impossible to determine the particular
hazard "contributed to by the violation." Due to the advance notice provided by the operator,
MSHA was unable to determine the number and type of violative conditions to which the miners
may have been exposed. MSHA's inability to detect the violations prevents that agency from
ensuring that the hazards associated with such violations are eliminated. The judge determined
that it was appropriate to presume that, when an operator interferes with an inspection by
providing advance warning, it is reasonably likely that an S&S violation would have been
·
discovered. 17 FMSHRC at 953.
The judge's approach is consistent with Consolidation Coal Co., 8 FMSHRC 890 (June
1986), aff'd, 824 F.2d 1071 (D.C. Cir. 1987) ("Consol Dust Case"), in which a unanimous
Commission adopted a presumption that all violations of the respirable dust standard, 30 C.F.R.
§ 70.100(a), are S&S. See also Twentymile Coal Co., 15 FMSHRC 941,946 (June 1993)
(reaffirming Consol Dust Case holding that any concentration of respirable dust over 2.0 mg/m3
is presumptively S&S). In the Consol Dust Case, the Commission largely based the adoption of
the presumption on the difficulty of proving the third element of Mathies. 8 FMSHRC at 898-99.
We reasoned that it was impossible to prove that one incident of overexposure of respirable dust
was reasonably likely to result in a respiratory illness, but in light of the "unambiguous
legislative declaration in favor of preventing any disability from pneumoconiosis" and the serious
nature of the health hazard involved, we determined that a violation of the respirable dust
standard should be considered presumptively S&S. ld at 897-99.

2

"a

A presumption is rule of law, statutory or judicial, by which [the] finding of a basic
fact gives rise to [the] existence of [a] presumed fact ... ." Black 's Law Dictionary 1185 (6th
ed. 1990). A rebuttable presumption is one "that can be overturned upon the showing of
sufficient proof." ld. at 1186. Presumptions are created for reasons of fairness, public policy,
procedural convenience, probability, or a combination of these reasons. See 2 McCormick on
Evidence§ 343, at 454-55 (John W. Strong ed., 4th ed. 1992). They may be defeated by
attacking the existence of the basic fact, introducing evidence contrary to the presumed fact (i.e.,
rebuttal), or both. See generally id. § 344, at 460-76.
3

Commissioner Marks agrees that an S&S presumption should be applied to this
violation. In addition, for the reasons set forth in his concurring opinions in US Steel Mining
Co., 18 FMSHRC 862, 868-75 (June 1996), and Buffalo Crushed Stone, Inc., 19 FMSHRC 231,
240 (Feb. 1997), he continues to urge that the ambiguous language of the Commission's Mathies
test, 6 FMSHRC at 3-4, be replaced with a clear test that is consistent with Congressional intent.

354

In Manalapan Mining Co., 18 FMSHRC 1375, 1395-94 (Aug. 1996) (opinion of
Chairman Jordan and Commissioner Marks), we recognized a presumption that violations of the
preshift standard (30 C.F.R. § 75.360(a)) are S&S. ld at 1388-98 & n.lO. The presumption was
based on the premise that the preshift examination requirement is of "fundamental importance in
assuring a safe working environment underground." ld. at 1393 (quoting Buck Creek Coal Co.,
17 FMSHRC 8, 15 (Jan. 1995)). We applied a presumption because of the difficulty of analyzing
the violation under Mathies, as the failure to conduct a preshift examination deprived the
inspector of any way to establish that specific hazards existed at the time the preshift examination
should have taken place: ld at 1393-94.
Considerations similar to those expressed in the Consol Dust Case and in our Manalapan
opinion compel our conclusion that a presumption of S&S is warranted when an operator
provides advance notice of an inspection. First, there is a difficulty of proof; it is impossible to
determine what injuries were reasonably likely to occur because the operator informed the miners
underground that inspectors were on the way. Second, the prohibition against advance notice
involves a matter of deep-seated Congressional concern; Congress plainly intended that Mine Act
inspections be unannounced because, like the respirable dust standard in the Consol Dust Case,
Congress directly inserted the prohibition against advance notice into the Mine Act itself. See 8
FMSHRC at 896-97 (respirable dust standard was taken directly from section 202 of the Mine
Act, 30 U.S.C. § 842). Taking into account strong Congressional direction regarding respirable
dust standards in affirming the Commission's Consol Dust Case decision, the D.C. Circuit cited
with approval the Commission's reasoning that "Congress clearly intended the full use of the
panoply of the Act's enforcement mechanisms to effectuate [this Congressional goal], including
the designation of a violation as a significant and substantial violation." 824 F.2d at 1086 (citing
8 FMSHRC at 897). The same holds true for violations of the advance notice provision. We
conclude that, based on unambiguous Congressional intent, an advance notice violation also is
presumptively S&S.4
We are reluctant to apply the Mathies test in the usual manner in cases involving advance
notice of inspectio'ns becaus_e it allows operators to derive a legal advantage from the very lack of
evidence concerning conditions in the mine that their own violation of the law created. When a
party violates a statutory obligation, and the legal ramifications of the violation cannot be
determined with certainty because of lack of evidence, it is only fair to resolve the uncertainty
against the party committing the violation. NLRB v. Transportation Management Corp., 462
U.S. ·393, 403 (1983) ("The employer is a wrongdoer; he has acted out of a motive that is
declared illegitimate by the statute. It is fair that he bear the risk [of liability] because he .

4

In dissent, Commissioners Riley and Verheggen state that a presumption is appropriate
only "under extraordinary circumstances." Slip op. at 35. Even under this test, we believe that
when an operator provides advance notice that an MSHA inspection is imminent, the difficulty of
proof of concealed health hazards and the clear Congressional intent forbidding such advance
notice warrant the presumption of S&S.

355

knowingly created the risk and because the risk was created not by innocent activity but by his
own wrongdoing.").
To ensure due process when a presumption is applied, it is "essential that there shall be
some rational connection between the fact proved and the ultimate fact presumed, and that the
inference of one fact from proof of another shall not be so unreasonable as to be a purely
arbitrary mandate." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28 (1976) (quoting Mobile,
J & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 43 (1910)) (upholding presumptions of disability
due to pneumoconiosis Under Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801
et seq. (1976) ("Coal Act")). In addition, an administrative agency's presumption must be
consistent with the relevant statute. Consol Dust Case, 824 F.2d at 1084-86 (upholding
Commission's S&S presumption for violation of respirable dust standard as rational and
consistent with Mine Act).
The presumption that a violation of the advance notice provision of section 103(a) is S&S
satisfies these criteria. It is rational to assume that if an operator provides advance notice of an
inspection (the proven fact), there is a reasonable likelihood that one of the many potential
hazards commonly existing in mines will go undetected, and consequently unabated, and, in the
course of continued mining operations, will be reasonably likely to result in serious injury (the
presumed fact). 5
Further, the presumption is rational because the very act of providing advance notice of
an inspection makes it more likely that the operator has something to hide in the first place. In
reviewing an analogous situation in Smith v. District ofColumbia, 436 A.2d 53 (D.C. 1981), a
challenge to the constitutionality of the District of Columbia's ban on radar detectors, the D.C.
Court of Appeals upheld the law and explained why radar detectors (similar to advance notice of
inspections) may be presumed to be used to hide dangerous violations:
· The prohibition is intended to promote the public safety by aiding
in th_e enforcement of highway speed limits through preventing
drivers from anticipating the presence of police radar. The
[Commissioners] must have assumed that drivers who use or
5

In this case, for example, the record shows that smoking materials, in particular, are
easy to conceal because cigarettes, lighters, and matches are small items that can be buried under
ribs, loose coal, or rock dust, or sent down a conveyor belt in a matter of seconds. Tr. 72-73,
· 122. Further, the record reflects that smoking plans are generally ineffective at keeping miners
from carrying smoking materials underground because there are numerous ways to carry smoking
materials without the operator's knowledge. Tr. 49-50, 55, 98. Even Fields acknowledged that
there is "no way to stop" miners from carrying smoking materials underground. Tr. 189. Fields
himself admitted that if he was working underground and he had smoking materials and knew the
inspectors were coming, he "would probably hide it or get rid of it one way or the other." Tr. 190.

356

possess radar detection devices will be more likely to violate the
traffic laws . .. [and] to use them ... in order to avoid speed limits
and enforcement efforts.

Id at 58-59 (alteration in original).
There is no credible reason why an operator would provide notice of an inspection, except
to try to hide a violation. · As the Smith court remarked in the parallel context of the challenge to
the radar detector prohibition:
Radar detectors have no utility other than aiding an illicit effort to
drive in an irresponsible manner, evading society's punishment for
such conduct. . . . [T]he nexus between the prohibition of radar
detectors and highway safety is obvious and evidences the
rationality of the Commissioner's [sic] enactment of the regulation.

Id at 59 (footnote omitted).
In addition, the adoption of the S&S presumption with regard to violations of section
103(a) is consistent with the Mine Act. As we have already discussed, Congress recognized the
critical role of unannounced inspections in combating safety and health hazards. Legis. Hist. at
614-15. The presumption is also clearly consistent with the criminal penalty provision of section

llO(e).
For the foregoing reasons, rather than requiring the Secretary to prove all four elements of
the Mathies test in cases involving violations of section 103(a), we adopt a presumption that all
violations of the advance notice provision of section 103(a) are S&S. The presumption applies to
all cases where.advance notice is given in violation of section 103(a). Under the presumption,
once the Secretary establishes a section 103(a) violation, the burden of producing evidence shifts
to the operator. It then has ail opportunity to rebut the presumption by adducing evidence that the
violation is not S&S. See, e.g., Canso! Dust Case, 8 FMSHRC at 899.
B.

Awlication of the Presumption to Topper

After finding that the operator violated section I 03(a) by giving advance notice of an
inspection, the judge properly employed a presumption that the violation was S&S. 17
FMSHRC at 95 1-53. The judge then concluded that the operator failed to present sufficient
evidence to rebut that presumption. !d. at 953 . We agree. On appeal, Topper asserts only that
providing advance notice of the MSHA inspection was not S&S because an explosion was not
reasonably likely to occur, as the mine does not have a history of methane liberation and the two
miners who were examined by MSHA inspectors were not in possession of smoking materials.
T. Br. at 7-8. Topper failed to rebut the testimony of an MSHA witness that the mine could
nonetheless produce methane. Tr. at 126. It points to no additional evidence to demonstrate that

357

the advance notice did not create the potential for danger. Accordingly, we conclude that
substantial evidence supports the judge's determination that Topper failed to rebut the
presumption and, consequently, we find the violation S&S.6 Based on the foregoing, we would
affirm the judge's holding. 7

6

Although Commissioner Beatty declines to apply a presumption, his S&S analysis is, in
many ways, similar to ours. Almost every one of his reasons supporting an S&S determination in
this case would be equally applicable to any violation alleging advance notice of an inspection in
any mine. He notes that the safety hazard at issue here is "the increased likelihood of smoking
materials underground." Slip op. at 24 (emphasis added). He acknowledges that the hazard is
created by "an increased potential for unchecked smoking materials underground, thereby
creating a reasonable likelihood of injury," id. at 27 (emphasis added), and recognizes that the
hazard here is "the threat of miners carrying and using smoking materials." !d. at 28 (emphasis
added). Much of the record evidence to which he points in support of his holding is generalized
and would apply universally. For instance, evidence showing that smoking materials are easy to
conceal and that smoking control plans are often ineffective, id. at 24, would probably apply to
all mines. Thus, we believe the differences between his analysis and ours are largely only
semantic.
7

Relying only on cases regarding the retroactive application of federal or state legislation
or federal regulations, our dissenting colleagues, Commissioners Riley and Verheggen, assert
that this case must be remanded if a presumption is applied. Slip op. at 35-36. We believe a
remand is not necessary. Topper has had ample opportunity to rebut the Secretary's presumption
before both the judge and the Commission, and has chosen not to do so. For example, MSHA's
Mine Safety and Health Specialist Cheryl McGill testified at the hearing why the Secretary
considered this violation to be S&S. Tr. 128, 156-58, 165. She testified that the operator's
advance noti~e made it reasonably likely that a fatality would occur because "we no longer had
the element of surprise" and were unable "to effectively determine whether or not smoking
materials had been.carried into that mine" and, therefore, the agency was going to "assum[e]"
that the miners had smoking materials that they had discarded at the time of the inspection. Tr.
156-57. In addition, the Secretary's post-hearing brief, filed May 15, 1995, argued that the
advance notice violation "should be presumed to be significant and substantial." S. Post-Hearing
Br. at 10 (emphasis added). In i.ts post-hearing brief, filed more than 10 days later on May 26,
1995, Topper never sought to rebut this presumption argument, nor did it even mention the
presumption issue. See T. Post-Hearing Br. at 10-11. Topper also failed to move to reopen the
record for the purpose of adducing evidence rebutting the presumption. Also, at the hearing,
Topper had requested and was granted the right to file a reply brief (Tr. II 12-13), but by letter
dated June 2, 1995, Topper expressly informed the judge that it was not going to file a reply brief
and that the "case should be decided based upon the evidence introduced at trial and the original
post-hearing briefs." Similarly, before the Commission, Topper did not attempt to rebut the
presumption, even though it was fully aware that the judge had applied the presumption in
finding S&S (17 FMSHRC at 951-53) and the Secretary was urging the Commission to adopt the
presumption (S. Br. at 2 t -25). Nor does Topper ask the Commission for a remand to put on

358

C.

The Legal Basis for Citing Mine Act Violations as S&S

Although the issue was neither raised nor briefed by the parties, our dissenting colleagues
question the Secretary's ability to cite Mine Act violations as S&S and are troubled by the
"Secretary's insistence on citing violations of provisions other than mandatory safety and health
standards as S&S under section 104(a)." Slip op. at 33. It is undisputed that the sections of the
Act that refer to a violation as S&S also refer to "a violation of any mandatory health or safety
standard."8 A literal reading of such statutory language could lead, as our dissenting colleagues
suggest, to the conclusion that Congress intended to preclude the Secretary from designating a
violation as S&S, unless the standard that was violated fell within the statutory definition of a
"mandatory health or safety standard."
The Mine Act defines a mandatory health or safety standard as "the interim mandatory
health or safety standards established by [titles] II and III of this [Act], and the standards
promulgated pursuant tc [title] I of this [Act)." 30 U.S.C. § 802(1).9 The Mine Act thus contains
explicit safety standards and also empowers the Secretary, through rulemaking, to promulgate
improved safety standards as experience and technology develop. See Southern Ohio Coal Co.,
14 FMSHRC 1, 9 (Jan. 1992) ("SOCCO"). The prohibition against advance warnings is
contained in section 103(a) of title I. It is plainly illogical for a standard promulgated pursuant to
title I of the Mine Act to be subject to more stringent enforcement than a prohibition inserted into
that title by the drafters themselves. Congress deemed the advance warning prohibition so
important that it expressly included it in the Act and made violators subject to potential criminal
sanctions. If the Secretary can apply the full panoply of the Mine Act's enforcement scheme to
any regulation she promulgates pursuant to title I of the Act, surely she should be able to do the
same regarding behavior that the lawmakers themselves took the trouble to prohibit. As the First
Circuit has stated, "[i)t is ... an established canon of statutory construction that a legislature's
words should never be given a meaning that produces a stunningly counterintuitive result- at
least if those words, read without undue straining, will bear another, less jarring meaning."
United States·v. O 'Neil, 11 F.3d 292,297 (1st Cir. 1993).
Our decision to accord this statutory prohibition in title I the same enforcement
significance as a rule issued thereunder is consistent with prior court and Commission cases,

additional evidence rebutting the presumption. Therefore, we conclude that Topper was on
notice that the Secretary was seeking a presumption that the advance notice violation was S&S,
had an opportunity to rebut that presumption, and failed to do so.
8

The S&S references are found in sections 104(d)(l) and (e), 30 U.S.C. § 814(d)(l), (e).
These provisions allow the issuance of withdrawal orders when certain events have occurred
involving repeated violations. An S&S designation is a necessary, but not the sole prerequisite
for issuing a withdrawal order under either of these sections.
9

This definition remained unchanged from the Coal Act. See 30 U.S.C. § 802(1) (1976).

359

which have explicitly declined to adopt a narrow construction of the statutory definition of
"mandatory health or safety standard." In Zeigler Coal Co. v. Kieppe, 536 F.2d 398,401,405
(D.C. Cir.), cert. denied, 429 U.S. 858 (1976), the court rejected a literal reading of the Coal Act
that would have permitted citations to be issued only for violations of "mandatory health and
safety standards." In that case, the operator argued that, because a ventilation plan provision did
not meet the statutory definition of a mandatory health or safety standard, the provision was
unenforceable. 536 F.2d at 402. The court acknowledged that, under the plain meaning of the
Coal Act, the operator was correct, but rejected such a "deceptively simple resolution of the
problem." Id at 405. The court foresaw that "a strict literal reading of the statute's definition
provision" would render unenforceable many other protective provisions of the Coal Act that did
not confonn to the definition of a mandatory health or safety standard. Jd This was a "result"
that "Congress could have hardly intended" since it "would greatly impair the statute's
effectiveness as a tool for bringing about improvements in mine health and safety conditions."
Jd Congress expressly approved the reasoning in Ziegler when it enacted the Mine Act. Legis.
Hist. at 613.
In the Consol Penalty Case, 14 FMSHRC at 963-65, the Commission rejected an
argument by the operator that the Secretary was without authority to propose civil penalties under
section llO(a) of the Mine Act, 30 U.S.C. § 820(a), for violations of Part 50 regulations because
they were not "mandatory health or safety standards."10 Section llO(a) requires the Secretary to
assess a civil penalty against "[t]he operator of a ... mine in which a violation occurs of a
mandatory health or safety standard or who violates any other provision of this [Act] .. . ." 30
U.S.C. § 820(a). The Commission stated that section llO(a), "if read in isolation, appears to
authorize civil penalties only for violations of the Act and of mandatory safety and health
standards." Consol Penalty Case, 14 FMSHRC at 964. Rejecting this narrow view, the
Commission adopted an approach that harmonizes sections 104(a), 105(a), 11 and IIO(a), and
concluded that civil penalties could be assessed for violations of any regulation promulgated
under the Ac~ not just those meeting the definition of a mandatory health or safety standard. ld
at 964-65. The Commission held that each part of a statute should be construed in connection
with other parts "so as to produce a harmonious whole." ld. at 965 (citing 2A Sutherland
Statutory Construction§ 46.05 (Singer 5th ed. 1992)). The Commission concluded that the
Secretary' s interpretation, allowing civil penalties for violations of Part 50 regulations,
"advance[d) the goals of the Act and maintain[ed] the importance of civil penalties as a
deterrence." Id. 12

10

Regulations contained in Part 50 of 30 C.F.R. pertain to "Notification, Investigation,
Reports and Records of Accidents, Injuries, Illnesses, Employment and Coal Production in
Mines" and were promulgated under title V of the Act.
II

30 U.S.C. § 8J5(a).

12

Other cases have refused to accept restrictive interpretations of Mine Act provisions.
For instance, in Emerald Mines Co. v. FMSHRC, 863 F.2d 51 (D.C. Cir. 1988), the operator

360

In these <;ases, the D.C. Circuit and the Commission refused to restrict the Secretary's
enforcement power to conform to a literal reading of the statute. The Commission reasoned that
Congress would not put enforcement mechanisms in place only to then prevent the Secretary
from using them against certain classes of violations. We determined that Congress did not
intend to designate only mandatory safety and health standards as subject to citations and
penalties, because such a restriction would dilute the effectiveness of the Mine Act. These
considerations also apply to the enforcement of section 103(a). Barring the use of certain
statutory enforcement mechanisms for violations of this provision is inconsistent with other
sections of the Act demonstrating the high priority Congress placed on the enforcement of the
advance notice prohibition. See slip op. at 10.
Allowing the Secretary to designate these violations S&S is consistent with the legislative
history of the Mine Act: The Senate Committee disapproved the "unnecessarily and improperly
strict view" of S&S taken by the Commission's predecessor, the Interior Board of Mine
Operations Appeals, under the Coal Act in Eastern Associated Coal Corp., 3 IBMA 331 (1974).
Legis. Hist. at 619. In .Eastern Associated, the Board based its narrow reading of S&S, in part,
on the "explicit restriction to infractions of the mandatory standard." 3 IBMA at 349. In effect,
our colleagues seek to return us to the age of weak and watered~down safety enforcement
described by the Senate Committee. See Legis. Hist. at 592 ("Numerous disasters in both coal
and non~coal segments of the industry underscore those areas of inadequacy of our current law
and the fact that the enforcement and administration of our current mine health and safety
programs has failed to produce the level of protection for our nation's miners which should be
within the capacity of our current mine safety laws.")

In fact, the terms "violations of the law" and "mandatory health and safety standards" are
used interchangeably throughout the legislative history of the Mine Act. For example, when
discussing the newly enacted training requirements contained in title I, 30 U.S.C. § 825, the
Senate Committee continually referred to this provision of the Act as a "mandatory safety and
health training standard." Legis. Hist. at 637. The Senate Report also describes statutory
language requiring the Secretary to issue citations for violations of the Act, or any standard, rule,
order, or regulation, and iriunediately afterwards, in explaining the provision calling for the
abatement of such violations, employs only the term "standard." ld at 618. Indeed, the
legislative history indicates that unwarrantable failure designations apply to violations of the Act.
The Senate Committee 1 esponsible for drafting the bill that became the Mine Act, in discussing
unwarrantable failure closure m:ders, explained: "[t]he unwarrantable failure order recognizes

asked the court to vacate section 104(d)(l) withdrawal orders and citations, which were based
upon an "investigation," because that section only authorized citations for unwarrantable failure
found "upon any inspection." /d. at 54 (emphasis removed). The D.C. Circuit held, however,
that "[t]he statute ... resists such tidy construction," and ruled that the operator could be cited
when an inspector investigates a site after the violation has occurred. Id. at 55; see also Nacco
Mining Co., 9 FMSHRC 1541, 1546 (Sept. 1987) (Commission has "resisted previous invitations
to give the Mine Act a technical interpretation at odds with its obvious purpose").

361

that the law should not tolerate miners continuing to work in the face of hazards resulting from
conditions violative ofthe Act." !d. at 619 (emphasis added). Of course, a withdrawal order
under section 104(d)(l), 30 U.S.C. § 814(d)(1), is triggered by a violation that is both S&S and
unwarrantable. Therefore, if a violation of the Act can trigger a withdrawal order under this
section, MSHA must have the authority to cite it as S&S as well as unwarrantable.
The dissent reasons that, since the S&S terminology appears only in sections 104(d)(l)
and (e}, and those provisions refer to mandatory health or safety standards, the Secretary is
precluded from attaching the S&S designation to a violation unless it involves a "mandatory
health or safety standard." Slip op. at 31. However, our colleagues overlook the fact that section
104(a) is the source of the Secretary's power to issue citations for alleged violations of the Act.
Section 104(d) is not a separate basis for the issuance of citations independent from section
104(a). Utah Power & Light Co., 11 FMSHRC 953, 956 (June 1989). As the Commission has
held, ''the statutory language makes clear that 'significant and substantial' and 'unwarrantable
failure' determinations by MSHA inspectors constitute special fmdings that are 'includ(ed)' in
any citation" issued under the authority of section 104(a). I d. Thus, section 104(d) cannot and
should not be read in isolation from section 104(a), which is exactly where our colleagues have
gone astray.
Section 104(a) provides that a citation may be issued for violations of"this [Act], or any
mandatory health or safety standard., rule, order, or regulation promulgated pursuant to this
[Act]" and requires that it "describe with particularity the nature of the violation." 30 U.S.C.
§ 814(a) (emphasis added). Section 104(d) requires an inspector to determine, among other
things, whether the viol:o.tion "is of such nature as could significantly and substantially contribute
to the cause and effect of a ... mine safety or health hazard." 30 U.S.C. § 814(d) (emphasis
added). The Commission has concluded that, construing sections (a) and (d) together, the
required description of the nature of the violation cited under section 104(a) may include a
finding by the inspector that the violation is S&S. Consolidation Coal Co. , 6 FMSHRC 189, 192
(Feb. 1984) ("Consof'). This holding was not expressly limited, as our colleagues incorrectly
assert (slip op. at "33), to mandatory health or safety standards. Rather, the case simply never
presented the question of whether violations of the Mine Act cited under 104(a) could be S&S.
The Commission has not restricted S&S fmdings to violations of mandatory health or
safety standards in the past. See SOCCO, 14 FMSHRC at 15 (remanding for determination of
whether violation of safeguard was S&S); LJ 's Coal Corp., 14 FMSHRC 1224 (Aug. 1992)
(remanding Part 50 violation for S&S analysis). 13 Our dissenting colleagues have provided us no

13

The dissent is mistaken when it questions our reliance on SOCCO for the proposition
that the Commission has found violations to be S&S, even when the underlying requirement did
not constitute a mandatory health or safety standard. See slip op. at 33. SOCCO involved a
safeguard that, because it was issued by the inspector without notice and comment rulemaking,
did not fall under the statutory definition of a mandatory health or safety standard. Because of
this distinction, mandatory standards are construed broadly in a way that effectuates their

362

basis for deviating from our precedent now. They suggest that it would have been more
appropriate for the Secretary to have responded to the violative conduct by proposing an
individual penalty against Fields under section 11 0(c) or resorting to criminal sanctions under
section 1IO(e). Slip op. at 34. Unlike our colleagues, we see no need to second guess the
Secretary's choice of prosecutorial tools, and are troubled by their attempt to usurp the
Secretary's enforcement prerogative. The Mine Act bestowed upon the Secretary the authority to
choose among the enforcement provisions of that statute. 30 U.S.C. §§ 813, 814; Thunder Basin
Coal Co. v. Reich, 510 U.S. 200 (1994).
Our colleagues' complaint merely serves to underscore the incongruity of their position.
Why would Congress allow an operator to go to prison for a violation that the Secretary was
precluded from designating S&S? By what logic would Congress not permit MSHA to utilize
the withdrawal orders available in sections 104(d) and (e) to deter conduct that could subject the
transgressor to the even more severe sanctions available to the Secretary under sections 11 0(c)
and (e)? See Chemical :~tjrs. Ass'n v. EPA, 919 F.2d 158, 165 (D.C. Cir. 1990) (rejecting as
"anomalous at best" interpretation that would have treated less stringently hazardous waste
facilities that, by terms of statute, were meant to be treated more stringently).
In declaring the S&S designation in this case to have no legal impact, our dissenting
colleagues ignore the historical role that an S&S designation has played, as a practical matter, in
Mine Act enforcement. The designation ofS&S has served as the agency's dividing line,
separating the violations to be treated in a perfunctory fashion from those to be subjected to more
individualized scrutiny. The D.C. Circuit recognized this fact of life in the Consol Dust Case,
824 F.2d 1071. In discussing the significance to be attached to a section 104(a) violation that
was designated S&S, the court found that MSHA routinely applied a flat $20 penalty to non-S&S
violations and excluded them from the operator's history ofviolations. 14 The court noted that the
"[d]esignation.of[section 104(a)] violations as significant and substantial ... is necessary if the
more severe sanctions available under [section] 104(e) are ever to be applied." I d. at 1078. This
differential treatment for 104(a) violations designated S&S led the court to conclude that the

purposes whereas safeguards are construed more narrowly. 14 FMSHRC at 8. Thus, when the
Commission has determined that-a safeguard violation was S&S, the Commission has indeed
extended the S&S designation to a requirement not falling within the definition of a mandatory
safety or health standard. We note that our dissenting colleagues acknowledge that "the
Commission has traditionally viewed [a safeguard] as a mandatory safety standard" (slip op. at
33), finding this less than literal reading acceptable. Yet they refuse to consider a statutory
requirement analogous to a mandatory safety standard for the purpose of designating violations
S&S.
14

The Secretary's current practice is to apply a flat penalty of$50 to non-S&S violations,
30 C.F.R. § I 00.4, but the violations are now included in an operator's history as a result of the
ruling in Coal Employment Project v. Dole, 889 F.2d 1127, 1138 (D.C. Cir. 1989), that the policy
of excluding such violations from an operator's history itself violates section 11 O(i).

363

operator bad suffered "a cognizable injury under the Act" and that the case was, therefore, ripe
for review. ld at 1079.
Our dissenting colleagues also fail to recognize that, if the Secretary availed herself of
section 11 0(c) or criminal sanctions instead of utilizing an S&S designation, her evidentiary
burden would be significantly greater. For example, if she attempted to prove a violation of
section 110(c), as our colleagues suggest (slip op. at 34), she would need to produce evidence of
a "knowing" violation. Furthermore, our colleagues' insistence that the Secretary could initiate
criminal proceedings against an operator who provides advance notice ignores the fact that the
ultimate decision to prosecute such a case lies with the U.S. Attorney, not the Secretary. It also
ignores the sig.nificant differences between the burden of proof in an S&S proceeding and the
more stringent standard in a criminal case.
We must constantly keep in mind the fundamental purpose of the Mine Act- to improve
the health and safety of our nation's miners. The dissent's interpretation of section 104 runs
counter to, and effectively acts to defeat, this objective. As the Supreme Court has noted:
[I]t is one of the surest indexes of a mature and developed
jurisprudence not to make a fortress out of the dictionary;
but to remember that statutes always have some purpose
and object to accomplish . . . . Looking beyond the naked
text for guidance is perfectly proper when the result it
apparently decrees .. . seems inconsistent with Congress'
ir·.tention ....

Public Citizen v. Department ofJustice, 491 U.S. 440,454-55 (1989).
As the Seventh Circuit has observed, "[s]ince the Act in question is a remedial and safety
statute, with its primary concern being the preservation of human life, it is the type of enactment
as to which a narrow or limited construction is to be eschewed." Freeman Coal Mining Co. v.
Interior Bd. of Mine Operations Appeals, 504 F.2d 741 , 744 (7th Cir. 1974) (quoting St. Marys
Sewer Pipe Co. v. Director of United States Bureau of Mines, 262 F.2d 378, 381 (3d Cir. 1959)
(discussing Coal Act). The dissent's literal approach disregards this very basic tenet of statutory
construction.

364

Based on the foregoing, we adopt the presumption that violations of section 103(a) are
S&S and vote to affirm the judge,s holding.

Marc Lincoln Marks, Commissioner

365

Commissioner Beatty, in favor of affirming the judge's S&S determination on substantial
evidence grounds:
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 ill.ness of a reasonably serious nature. Cement Div., Nat 'I Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -that is, a
measure of danger to safety- contributed to by the violation; (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.

/d at 3-4 (footnote omitted); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995) (approving Ma(hies criteria); Austin Power, Inc. v. Secretary ofLabor, 861 F.2d 99,
103 (5th Cir. 1988) (same). An evaluation of the reasonable likelihood of injury should be made
assuming continued normal mining operations. US. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985).
While I share the concerns of Chairman Jordan and Commissioner Marks about the
serious repercussions for enforcement of the Mine Act that could result if operators believe that
they are free·to impede an MSHA inspection without the risk of an S&S designation, and agree
with the result they reach in upholding the judge' s determination that Topper's section 103(a)
violation was S&S, I reach this conclusion by applying the Mathies criteria to the evidence
adduced in this case, rather than by applying a presumption. To this end, I share the views of
Commissioners Riley and Verheggen that the application of an S&S presumption involving this
type of violation is not necessary or warranted. In my view, there is substantial evidence to
support a determination that Topper's section 103(a) violation met all four elements of the
Mathies test, and therefore was S&S.
Under the first criterion of Mathies, the violation at issue is the conduct of Topper
President Fields in impeding the MSHA investigation by alerting the miners underground that
two MSHA inspectors were on their way. Fields' actions were directly contrary to the specific
instructions of the MSHA inspectors and in direct violation of the express language of section

366

103(a) of the Mine Act prohibiting advance notice ofinspections. 1 See slip op. at 5.
The second element of Mathies requires finding a discrete safety hazard -that is, a
measure of danger to safety contributed to by the violation. The safety hazard resulting from this
violation is the increased likelihood of smoking materials underground because ofMSHA's
inability to conduct an effective inspection for smoking materials. This is particularly important
in the instant case because of the propensity of miners at Topper's No. 9 mine to carry smoking
materials underground, and their ability to conceal such materials. This conduct is well
established by the record. First, the record indicates that smoking materials, in particular, are
easy to conceal underground because cigarettes, lighters, and matches are small items that can be
buried under ribs, loose C<?al, or rock dust, or sent down a conveyor belt in a matter of seconds.
Tr. 72-73, 122. Further, the record reflects that smoking control plans enforced by operators are
generally ineffective at keeping miners from carrying smoking materials underground because
there are numerous way::. miners can carry smoking materials without the operator's knowledge.
Tr. 49-50, 55, 98. Indeed, there is record evidence that miners at Topper's No.9 mine were
discharged after they were found to have carried smoking materials underground. Tr. 180. This
is a strong indication that Topper's smoking control plan was not totally successful at eradicating
the presence of smoking materials underground. Even Topper President Fields conceded that
there was "no way to stop" miners from carrying smoking materials underground. Tr. 189.
Moreover, Fields admitted that if he was working underground and had smoking materials and
knew the inspectors were coming, he "would probably hide it or get rid of it one way or the
other." Tr. 190.
I also find that the above-described safety hazard, the unchecked presence of smoking
materials underground, is reasonably likely to cause an injury-producing event, i.e., fire or
explosion, satisfying the third element of the·Mathies test. Where an operator impedes the
inspection process of MSHA by providing advance notice to miners of an ensuing inspection, it
is more likely ·than not that smoking materials will not be detected on the miners. Under these
conditions, miners will dev~~op a sense of security in carrying and utilizing smoking materials
underground. In my view, this scenario, combined with the presence of combustible materials
like coal, coal dust, and methane, creates a reasonable likelihood of an injury resulting from a fire
or explosion.

1

1 expressly decline to address the argument advanced by Commissioners Riley and
Verheggen that only violations of mandatory health and safety standards may be found to be S&S
under section 104(d) of the Mine Act. See slip op. at 31-34. In my view, this issue is not
properly before the Commission, since it was concededly not raised by Topper in its petition for
discretionary review. Under the Mine Act and the Commission's procedural rules, review is
limited to the questions raised in the petition. 30 U.S.C. § 823(d)(2)(A)(iii); 29 C.F.R.
§ 2700.70(f). See Wyoming Fuel Co., 16 FMSHRC 1618, 1623 (Aug. 1994), aff'd mem., 81 F.3d
173 (1Oth Cir. 1996); Donovan on behalfofChacon v. Phelps Dodge Corp., 709 F.2d 86, 91 &
n.6 (D.C. Cir. 1983).

367

Finally, I conclude that the fourth criterion of Mathies is established. Injuries resulting
from a fire or explosion in an underground coal mine would be reasonably likely to be of a
reasonably serious nature. Based on the foregoing, I conclude that the record in the instant case
provides substantial evidence to support a determination that this violation was S&S.
In my view, an evidentiary-based determination that Topper' s violation of section 103(a)
is S&S under the Mathies criteria is consistent with, and strongly supported by, prior S&S
findings of the Commission in cases involving violations of prophylactic safety standards. In
these cases, the Commission made S&S findings without the use of a presumption. For instance,
in Buck Creek Coal Co., the Commission applied the Mathies test to an operator's failure to
conduct a preshift examination in violation of 30 C.F.R. § 75.360(a), and concluded that the
violation was S&S. 17 FMSHRC 8, 13-14 (Jan. 1995). In Buck Creek, the Commission reversed
the judge's determination that the third element of Mathies had not been established, despite the
absence of specific hazards disclosed upon examination of the area of the mine where miners had
entered. ld. The Commission expressly declined to adopt the S&S presumption advocated by
the Secretary. ld. at 14 n.9. See also Kellys Creek Resources, Inc., 19 PMSHRC 457,461 (Mar.
1997) (violation of 30 C.P.R. § 75.388 for failure.to drill boreholes); Manalapan, 18 PMSHRC
at 1381-83 (Commissioners Holen and Riley, concurring) (failure to conduct preshift
examination); but see Manalapan, 18 PMSHRC at 1388-89 (Chairman Jordan and
Commissioner Marks, concurring) (recognizing S&S presumption where preshift standard
violated).2
·
Like the preshift examination and borehole drilling requirements involved in those cases,
section 103(a)'s inspection requirement and prohibition on advance notice are designed to ensure
the timely detection of safety hazards and prevent the exposure of miners to those hazards. As
Chairman Jordan and Commissioner Marks point out in their separate opinion (slip op. at 9),

2

Although it has no -binding precedential effect on the Commission (see 29 C.P.R.
§ 2700.72), I am also persuaded by the reasoning employed by Commission Administrative Law
Judge James Broderick in concluding that the failure to conduct a preshift examination was S&S
in Emerald Mines Corp., 7 PMSHRC 437 (Mar. 1985) (ALJ). Despite the obvious inability to
determine the precise type of h~ds that the preshift inspection might have disclosed, if
conducted, Judge Broderick explained that:
[t]he whole rationale for requiring preshift examinations is the fact
that underground coal mines are places of unexpected,
unanticipated hazards: roof hazards, rib hazards, ventilation and
methane hazards. I conclude that failure to make the·required
preshift examination of active workings in an underground coal
mine contributes to "a measure ofdanger to safety" which is
reasonably likely to result in a reasonably serious injury.

!d. at 444 (emphasis added).

368

section 103(a)'s requirement for unannounced inspections is a prophylactic safety measure whose
importance was explicitly recognized by Congress in its adoption of the Mine Act. In addition,
Congress expressed particular concern about the hazards of smoking in underground mines by
enacting section 317(c) to prevent smoking-related ignitions and explosions. See 30 U.S. C.
§ 877(c). Section 317(c) of the Mine Act was based on an identical provision in the predecessor
statute, the Coal Act. The section-by-section analysis of the Senate Report that accompanied the
passage of the Coal Act notes:
From 1952 through 1968, the Bureau of Mines records
indicate that 28 actual and nine possible local gas ignitions or
explosions were caused by workmen using smoking materials,
matches, or lighters underground. In many cases, matches were
used, in accordance with the practice at the mine, to light fuses. In
others, matches were used to light cigarettes. As a result of the 37
occurrences, 38 men were injured, and 13 were killed.
S. Rep. No. 411, 91st Cong., lst Sess. 51 (1969), reprinted in Senate Subcommittee on Labor,
Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the
Federal Coal Mine Health and Safety Act of1969, at 177 (1975). Further, Congress reinforced
the prohibition against smoking by enacting section 11 O(g) of the Mine Act,3 under which a civil
penalty can be assessed directly against a miner for smoking or carrying smoking materials
underground.
Based on my conclusion that an S&S finding can be upheld on substantial evidence
grounds, I see no need to employ a presumption to achieve that result. In my view, the use of a
broad-based presumption to determine whether Topper's section 103(a) violation is S&S unduly
complicates the analysis, and is contrary to the Mathies requirement that the S&S determination
be based on ·"the particular facts surrounding th[e] violation." Mathies, 6 FMSHRC at 3 (citing
National Gypsum, 3 FMS~C at 825); see also Beech Fork Processing, Inc., 14 FMSHRC 1316,
1321 (Aug. 1992Y(application of presumption is contrary to Mathies analysis based on careful
examination of evidence surrounding violation).
I also believe th<!t the Secretary has failed to develop a record in this case that establishes
a need for such a change in the "law. In fact, there is no Commission precedent supporting the use
of a presumption to establish S&S other than one case involving the respirable dust standards. In
the Consol Dust Case, the Commission held that when the Secretary proves a violation ofthe
respirable dust standard (30 C.F.R. § 70.1 OO(a)), "a presumption arises that the third element of
the significant and substantial test- a reasonable likelihood that the health hazard contributed to
will result in an illness- has been established." 8 FMSHRC at 899. The Commission adopted

3

Section 11 O(g) provides: "Any miner who willfully violates the mandatory safety
standards relating to smoking or the carrying of smoking materials, matches, or lighters shall be
subject to a civil penalty assessed by the Commission·.... " 30 U.S.C. § 820(g).

369

the presumption because of the virtual impossibility of determining the contribution of a single
incident of overexposure to respirable dust as it relates to development of respiratory diseases,
including pneumoconiosis. "[I]t is not possible to assess the precise contribution that a particular
overexposure will make to the development of respiratory disease." ld at 898. In my view, the
Secretary has not shown, in this case, a similar need for the use of a presumption in analyzing
violations involving advance notice of an MSHA inspection, in particular the type of inspection
involved in this case.4 Thus, I decline to decide on the present record that, in determining
whether an operator's impedance of an MSHA inspection is properly designated as S&S, we
should apply a presumption that shifts the burden of proof to the operator.
In my view, the position that the Mathies analysis is inadequate, or impossible to apply,
when determining the S&S nature of this type of violation is based on overly restrictive
interpretation of certain criteria- i.e., the concern that it is not possible to ascertain the specific
hazards an inspector would have found if miners had not been alerted to the inspection. I believe
that the act of impeding an MSHA inspection results in a hazard by creating an increased
potential for unchecked smoking materials underground, thereby creating a reasonable likelihood
of injury sufficient to satisfy the third element of the Mathies test, despite the inability to
determine precisely the specific hazards the inspectors might have found if no advance warning
was given. This analysis is consistent with the approach followed by the Commission in prior
decisions. See, e.g., Buck Creek, 17 FMSHRC at 13-14; Manalapan, 18 FMSHRC at 1381 -83
(Commissioners Holen and Riley, concurring); see also Kellys Creek, 19 FMSHRC at 461
(failure to drill boreholes). 5

4

It is also significant that the presumption adopted in the Consol Dust Case covers only
the third Mathies element, with other elements established through violation of the dust standard.
In this case, however, the presumption advocated by the Secretary would be used to establish all
four elements of the Mathies test.
5

Chairman Jordan ana Commissioner Marks assert that the difference between their
analysis and mine is "largely only semantic." Slip op. at 15 n.6. I respectfully disagree with my
colleagues on this point, since I believe that the two lines of analysis differ significantly on two
important points. First, the second element of Mathies requires that we find a discrete safety
hazard- that is, a measure of danger to safety contributed to by the violation. My colleagues
argue that Mathies does not provide the proper framework because "it is impossible to determine
the particular hazard 'contributed to by the violation.'" ld at 11 (emphasis added). As I have
explained, however, I do not believe it is necessary that we find a particular hazard upon which
to predicate the Mathies analysis. Instead, in my view, it is sufficient that a "measure of danger
to safety" is created when MSHA inspections are thwarted by an operator's advance notice.
Support for this approach can be found in prior Commission cases. See Manalapan, 18
FMSHRC at 1396 (Chairman Jordan and Commissioner Marks, concurring) (S&S determination
should be based on "the serious potential for harm that can confront miners" as result of
violation); Emerald Mines, 7 FMSHRC at 444 (failure to make required preshift examination in
underground coal mine found to be S&S because it "contributes to 'a measure ofdanger to

370

As stated earlier, I am persuaded by the reasoning employed by Judge Broderick in
Emerald Mines, where he held that the determination of the risk posed by this type of violation
should not turn on the fortuitous circumstances that the unexamined area did not contain the
hazardous conditions the exam was designed to detect:
How does one evaluate the hazard to which the violation
contributes? By what is disclosed on an examination of the area
after the examination? Emerald contends that this is the test. But
the hazard and the violation here involve, not the condition of the
area as such, but rather the assigning of miners to work in an
uninspected area. . . . Can it seriously be argued that failure to
perform one ofthese examinations is not significant and
substantial ifa post-violation examination does not show
hazardous conditions?
7 FMSHRC at 444 (emphasis added). Applying Judge Broderick's reasoning, the hazard in this
case is not so much the actual discovery of smoking materials on a miners' person as the threat of
miners carrying and using smoking materials without the fear of an unannounced smoking
inspection by MSHA. Under this line of analysis, it follows that, contrary to the concern
expressed by Chairman Jordan and Commissioner Marks (slip op. at 12), a presumption is not
necessary to prevent an operator from deriving legal advantage from the lack of evidence
concerning the hazards an inspector might have found if the investigation had not been impeded
by advance notice. As Judge Broderick articulates, it is the failure to make the required
examination, or in this case an inspection without advance notice, which contributes to "a
measure of danger to safety" that is reasonably likely to result in a reasonably serious injury. I d.
Also, I find the application of an S&S presumption particularly troubling in this case
because it appears that Topper never had an opportunity to adduce evidence at the hearing to
attempt to rebut the presurpption. As Commissioners Riley and Verheggen point out (slip op. at
35), the Secretary first argued for a presumption in her post-hearing brief, submitted after the
close of the hearing. Therefore, at the time of the hearing, Topper had no notice that the
Secretary would argue for application of an S&S presumption, and therefore no apparent reason
to argue against application of the presumption or to introduce evidence that it could rely upon to
rebut such a presumption. In these circumstances, I believe that it would be unfair to
retroactively apply an S&S presumption and conclude that Topper failed to rebut the
presumption. If such a presumption were to be applied in this case, I agree with Commissioners

safety' which is reasonably likely to result in reasonably serious injury") (emphasis added).
Second, the presumption applied by my colleagues shifts the burden of proof to the operator to
show that the violation was not S&S. In my view, this is a significant departure from the general
rule that the burden of proving a violation, as well as its nature and characteristics, rests entirely
with the Secretary.

371

Riley and Verheggen that it would be fair and equitable to remand the case to afford Topper a
meaningful opportunity to rebut the presumption. See slip op. at 36.
On this point, I am also concerned about the circumstances under which this type of
presumption may be rebutted and whether, as a practical matter, an operator will ever have a
meaningful opportunity to rebut the presumption. If an operator is not afforded an opportunity to
rebut the presumption, then the presumption is in effect an irrebuttable presumption, raising
additional concerns about the fairness and propriety of its application in this and future cases.
'" [P]ermanent irrebuttable presumptions have long been disfavored under the Due Process
Clauses of the Fifth and Fourteenth Amendments'" because the Due Process Clause requires "a
more individualized determination." Cleveland Bd of Educ. v. LaFleur, 414 U.S. 632, 644-45
(1974) (quoting Vlandis v. Kline, 412 U.S. 441,447 (1973)).
In my opinion, if no smoking materials are found after advance warning of an inspection,
as occurred in this case, the question becomes: how can the operator successfully rebut the
presumption? Is it sufficient to elicit testimony from the MSHA inspector that he searched the
miners in the area and found no smoking materials? If so, then the operator will likely be able to
successfully rebut the presumption in virtually every case. To this end, the adoption of the
Secretary's proposed presumption may achieve a result contrary to that intended, thereby
precluding a finding that an operator's interference with an MSHA investigation is S&S.
Conversely, the operator may be required to elicit testimony from all miners present in the
area inspected designed to show that they did not possess smoking materials at the time of the
inspection in spite oftht! advance notice provided by the operator. This gives rise to another
potential problem - the possibility that miners, after receiving the advance warning, may have
concealed smoking materials and are thereafter reluctant to admit this fact because of their
exposure to discharge under the operator's smoking control plan and the threat of penalties under
section 11 O(g). While we certainly cannot anticipate that miners or other witnesses will not
testify truthfully at a hearing involving this type of violation, this type of situation could provide
a strong inducement for miners to conceal the truth in order to protect their jobs and livelihood
and avoid the imposition of penalties. Under this analysis, the Secretary may find herself in a
posture where the operator is able to successfully rebut the presumption and no S&S
determination is made.
Finally, I believe that the reliance of Commissioners Riley and Verheggen on the
"impressive array ofprosecutorial resources at (the Secretary's] disposal" to combat this type of
"extremely serious" violation (slip op. at 36) is misplaced, at least for purposes of this case. In
this case, the Secretary relied only upon the S&S designation, and the consequences that flow
from it, as a prosecutorial tool for penalizing this violation.6 As indicated above, I share the

6

Commissioners Riley and Verheggen contend that no consequences flow from the S&S
designation in this case based on their view that the S&S designation is only applicable to, and
only carries enforcement consequences in connection with, violations of mandatory health and
372

concerns of Chairman Jordan and Commissioner Marks about the serious repercussions for
enforcement of the Mine Act that could result if operators believe that they are free to impede an
MSHA inspection without the risk of an S&S designation. In my view, these concerns are best
rectified in this case by finding this violation to be S&S on substantial evidence grounds through
application of the Mathies test.
Based on the for~going, I vote to affirm the judge's S&S holding on substantial evidence
grounds.

Robert H. Beatty, Jr., Commission

safety standards. Slip op. at 33-34, 36. Having declined to consider this issue on the ground that
it is not properly before the Commission (id at 24 n.l ), I do not necessarily agree with the view
of my colleagues that the S&S designation at issue in this case has no enforcement consequences
or legal effect.

373

Commissioners Riley and Verheggen, in favor of reversing the judge's S&S
determination:
For the reasons set forth below, we find that, as a matter of law, the judge's S&S fmding
in this case is in error. We therefore dissent from our colleagues' decisions affirming in result
the judge's S&S finding.
A.

Whether the Jud~e Properly Found that the Violation Was S&S

Our colleagues have set forth two rationales for affrrming the judge's S&S determination
in this case. The Chairman and Commissioner Marks would sidestep the Commission's Mathies
test and create a new presumption that violations of section 103(a) of the Mine Act are S&S.
Slip op. at 12 (hereinafter, we refer to the opinion of the Chairman and Commissioner Marks as
the "presumption opinion"). They feel that "the Mathies criteria fail to provide a framework for
determining the seriousness of the violationO," and that "it is impossible to determine the
particular hazard 'contributed to by the violation."' I d. at 11. Commissioner Beatty finds no
such impediments to applying Mathies. He carefully weighs the evidence and finds that the
record supports the judge's conclusion that the violation was S&S. I d. at 23-26. 1
All our colleagues, however, have glossed over a fundamental problem with the
Secretary's S&S allegation in this case. The first element of the Mathies test requires the
Secretary to prove an "underlying violation of a mandatory safety standard." 6 FMSHRC at 3-4
(emphasis added). But here, the Secretary has proven a violation of a provision of the Mine Act
that is not a mandatory safety standard. Her allegation of S&S thus fails to meet the first element
of the Mathies test, and on this ground, the judge legally erred at the very threshold of his
decision.
The S&S terminology appears only in sections 104(d)(l ) and (e) of the Mine Act, both of
which are limited in scope .to violations of"mandatory health and safety standards." 30 U.S.C.
§ 814(d)(l), (e). Section 104(a) of the Act, on the other hand, grants the Secretary the authority
to cite violations of the "[Act], or any mandatory health or safety standard, rule, order, or
regulation promulgated pursuant to [the Act]." 30 U.S:C. § 814(a). The first inquiry in statutory
construction is "whether Congress has directly spoken to the precise question in issue." Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984); Thunder
1

In its brief, Topper appears to have assumed that the discrete safety hazard at issue is
miners carrying smoking materials underground, which, in turn, would pose the hazard of a fire
or explosion in the mine if such smoking materials were used underground. T. Br. at 7-8.
Commissioner Beatty treats this as the hazard at issue, then analyzes whether the third and fourth
Mathies elements have been met. Slip op. at 24-25. Were we to overlook the problems posed by
the first Mathies criterion, we would join Commissioner Beatty's opinion. In fact, we fmd that
his analysis of the third element, especially, is eloquent proof of the continuing vitality of the
Mathies test.

374

Basin Coal Co., 18 FMSHRC 582,584 (Apr. 1996). If a statute is clear and unambiguous, effect
must be given to its language. Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA
v. FMSHRC, 917 F.2d 42,44 (D.C. Cir. 1990). Here, by their plain terms, sections 104(d)(l) and
(e) are limited in application to violations of mandatory health and safety standards. The Act
thus limits the Secretary to citing violations as S&S only when such violations are of mandatory
·
health and safety standards.
We do not, as argUed in the presumption opinion, "overlook the fact that section 104(a) is
the source of the Secretary's power to issue citations" by reading section 104(d) "in isolation
from section 104(a)." Slip op. at 19. Instead, we begin with the axiomatic proposition that the
Secretary's power to cite mine operators for violations of the Act originates in section 104(a),
which broadly covers violations of the "[Act], or any mandatory health or safety standard, rule,
order, or regulation promulgated pursuant to [the Act)." 30 U.S.C. § 814(a). In various sections
of the Act, Congress then set forth additional prosecutorial tools for the Secretary to use in
connection with specific actors and offenses, such as sections 11 0(c) and (d) addressing
individual civil and criminal liability, section IIO(e) addressing advance notice of inspections,
section 11 0(£)2 addressing false statements made to the Secretary, and section 11 O(g) addressing
smoking in mines. In section 104(d), Congress provided the Secretary with the power to make
special findings in connection with one broad category of offenses, violations of mandatory
health and safety standards, when such violations are "of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety or health hazard" or
"caused by an unwarrantable failure of [an] operator to comply with such mandatory health or
safety standards." Section 104(d) thus addresses only one category of violations enumerated in
section 104(a): violations of mandatory health or safety standards.
Read together, sections 104(a) and (d) thus create a hierarchy of enforcement under
which the Secretary can bring additional enforcement sanctions to bear on operators who violate
mandatory health and safety standards. See Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec.
1987) ("The Mine Act's use of. different terms within the same statute demonstrates that
Congress intended the different terms to censure different types of operator conduct within a
graduated enforcement scheme."). It is not irrational to infer that Congress created these
additional separate enforcement sanctions beyond section 104(a) because it considered violations
of mandatory health and safety standards as graver than, say, Part 50 reporting requirements, for
which no such additional sanctions were created in section 104, any of the subsections of section
110, or any other provision of the Act. Similarly, Congress considered advance notice of
inspections so critical a violation that it created a separate provision of the Act providing for
severe criminal sanctions. See 30 U.S.C. § 820(e).
Although it is argued in the presumption opinion that it is illogical for section 103(a), the
Act's prohibition against interfering with inspections, to receive less enforcement significance
than "standards" (slip op. at 16), Congress placed many "standards" in titles II and III of the Act,

2

30 u.s.c. § 820(£).

375

clearly designating them as mandatory health or safety standards. Congress then singled out such
"mandatory health or safety standards" in sections 104(d) and (e) as meriting different, more
severe sanctions when an operator has violated them repeatedly. Similarly, Congress focused on
advance notice violations as meriting different and very severe sanctions: criminal liability. 30
U.S.C. § 820(e). The Act speaks for itself, and has its own internal logic. A bald assertion of
illogicality, divorced from the specific context of the Act, means very little, and is in fact at odds
with the plain meaning and logical structure of the Act.

In passing on a question similar to the one we raise here, the Commission has concluded
that ''the required description of the nature of the violation of a mandatory safety or health
standard cited'under section I 04(a) may include a finding ... that the violation is significant and
substantial." Consol, 6 FMSHRC at 192. The holding of this Consol case, however, is limited to
violations of mandatory health and safety standards cited as S&S under section 104(a)whereas here, a violation of the Act has been cited as S&S under section 104(a). A SOCCO case
is cited in the presumption opinion for the proposition that the "Commission has not restricted
S&S findings to violations of mandatory health and safety standards in the past." Slip op. at 19
(citing SOCCO, 14 FMSHRC at 15). This citation is just plain wrong. SOCCO involved a
violation of a safeguard, which the Commission has traditionally viewed as a mandatory safety
standard. 14 FMSHRC at 8; see also Southern Ohio Coal Co., 7 FMSHRC 509,512 (Apr.
1985). We believe that the other case cited, remanding a Part 50 violation for an S&S analysis
(slip op. at 19 (citing LJ's Coal Corp., 14 FMSHRC 1224)), was wrongly decided. We would
acknowledge the implied point here, that the Secretary's practice of citing as S&S violations of
provisions other than mandatory safety and health standards appears to have stood the test of
time. Only until now, however, in our opinion, because this practice is at odds with the Act. As
the Supreme Court has held, the age of an agency interpretation of its enabling statute "is no
antidote to clear inconsistency with [the] statute." Brown v. Gardner, 513 U.S. 115, 122 (1994)
(striking down Department of Veterans Affairs regulation that had been on books for 60 years).
As the Court noted, if an agency interpretation "flies against the plain language of the statutory
text, [this] exempts courts from any obligation to defer to it." Jd.
We are also troubled by the policy implications of the Secretary's insistence on citing
violations of provisions other than mandatory safety and health standards as S&S under section
104(a). An S&S allegation in a s~ction 104(a) citation does not trigger the sanctions of section
104(d). Nor can such an allegation be used to establish a pattern of violations of anything other
than mandatory safety and health standards under section 104(e), which by its plain terms is
limited to violations of mandatory health and safety standards. See 30 U.S.C. § 814(e). A
section 104(a) S&S designation is merely an allegation that a particular violation is serious. We
thus believe that no legal consequences flow from such a designation that the Secretary could not
more efficiently accomplish under her Part 100 civil penalty regulations,3 including her broad

3

Even under the Secretary's single penalty assessment regulation, 30 C.F.R. § 100.4, she
has broad discretion to assess a penalty based upon the unique circumstances of each case,
notwithstanding whether a citation has been designated S&S.

376

discretion to impose special assessments (see 30 C.F .R. § 100.5), or under the various provisions
of section 110 of the Act aimed at specific violations. We believe that the Secretary has wasted
her resources and those of the Commission by resorting to a term of art under sections 104(d) and
(e) to measure the gravity of a section 104(a) violation.
A hue and cry is raised in the presumption opinion that we "seek [a] return ... to the age
of weak and watered-down safety enforcement." Slip op. at 18. We believe, however, that it is
the Secretary who has engaged in "weak and watered-down safety enforcement" by making an
allegation of seriousness against Topper that has had absolutely no legal effect other than to
prolong this litigation. The Secretary's S&S allegation is nothing more than a shorthand
description of the seriousness or gravity of the offense - it accomplishes nothing else and has no
legal effect beyond its descriptive function.4 Instead of making an empty gesture, the Secretary
ought to have brought to bear sanctions based on clear statutory provisions, such as sections
llO(c) and (e), that could have had real potential for deterring such violations in the future.
We agree with the presumption opinion that "the fundamental purpose of the Mine Act
[is] to improve the health and safety of our nation's miners." Slip op. at 21. But we dispute the
claim that our "interpretation of section 104 runs counter to, and effectively acts to defeat, [the
Mine Act's] objective." ld In fact, it is the Secretary's misguided use ofS&S here that
"defeats" the important objectives of the Mine Act because her S&S allegation essentially
trivializes S&S insofar as the allegation lacks any legal effect. Moreover, the principle of liberal
construction of remedial statutes does not give the Secretary or the Commission '"license ... to
disregard entirely the plain meaning of the words used by Congress."' Belland v. Pension Benefit
Guar. Corp., 726 F.2d 839,844 (D.C. Cir. 1984) (quoting Symons v. Chrysler Corp. Loan
Guarantee Bd., 670 F.2d 238,241 (D.C. Cir. 1981)).
The argument is made in the presumption opinion that we "attempt to usurp the
Secretary's e~orcement prerogative." Slip op. at 20. But one of the central missions of this
Commission is to interpret the Mine Act and ensure that the Secretary has followed its dictates.
Congress established the Commission to, among other things, "develop a uniform and
comprehensive interpretation of the law . .. [to] provide guidance to the Secretary in enforcing
the [Mine Act]." Nomination Hearing Before the Senate Comm. on Human Resources, 95th
Cong., 2d Sess. 1 (1978). Congress explicitly charged the Commission "with the responsibility
... for reviewing the enforcem('(nt activities of the Secretary." !d. Whether the Secretary's use
of S&S allegations is consistent with the Mine Act, the question we examine here, "fall[s]
squarely within the Commission's expertise." Thunder Basin, 510 U.S. at 214.

4

The Secretary's S&S designation had no impact on the penalty assessed by the judgehe found Topper's violation to be "very serious" and the result of high negligence without any
reference to the S&S designation. 17 FMSHRC at 955. Nor does the S&S designation have any
bearing whatsoever on the ruling announced above by the full Commission affirming the judge's
penalty assessment. Slip op. at 6-7.

377

B.

Whether Violations of Section 103(a) Should Be Presumptively S&S

Although we have found that the judge erred as a matter of law in concluding that
Topper's violation of section 103(a) of the Mine Act was S&S on grounds other than those upon
which he relied, we also reject the judge's conclusion that the violation was presumptively S&S.
On this question, we concur with the opinion of Commissioner Beatty. See slip op. at 26-29. In
addition to the reasons he outlines why an S&S presumption should not be adopted in this case,
we add only that it is well established that the burden of establishing S&S rests on the Secretary
(Mathies, 6 FMSHRC at 3-4), except under extraordinary circumstances not found in this case. 5
Cf Manalapan, 18 FMSHRC at 1378-83 (separate, non-binding opinion of Commissioners
Holen and Riley).
We are also troubled that the scheme advanced in the presumption opinion would fail to
afford Topper the opportunity to rebut a newly created presumption. As with any rebuttable
presumption, a new presumption here would "shift[] the burden of producing evidence" from the
Secretary to Topper. 2 McCormick on Evidence§ 343, at 454 (emphasis added). It follows that
Topper would have to be afforded the opportunity to produce evidence to rebut any newly
created presumption, rather than be held to arguments already made on a record already closed.
In determining whether Topper has had any opportunity to rebut the Secretary's
presumption, the focus must be on whether, in response to the Secretary's allegations, Topper
was able to build a record on which the judge could have entered a finding that the company
either rebutted an S&S presumption or failed to meet its burden. The record is clear. Topper had
no such opportunity because a presumption was not part of the theory of the Secretary's case
until after the record closed. No presumption appears on the face of the citation at issue. No
presumption is mentioned in the Secretary's pre-hearing submissions. No presumption was
mentioned at trial.6 No pr:esumption was ever advanced as part of a motion to reopen the record.
The Secretary argued for a presumption only after the hearing in her post-hearing brief. Once it
saw the point being argued in the Secretary's post-hearing brief, Topper was under no obligation
to respond because the Secretary bears the burden of proof.
We also reject the approach taken in the presumption opinion of applying a new
presumption retroactively. As the Supreme Court has held, "[r]etroactivity is not favored in the

5

In fact, the Commission has created only one such presumption, in the Consol Dust
Case (8 FMSHRC 890).
6

The closest the Secretary came at trial to arguing that a presumption should have been
adopted was when her inspector testified that, in the words of our colleagues' opinion, "the
agency was going to 'assum[e]' that the miners had smoking materials that they had discarded at
the time of the inspection." Slip op. at 15 n.7. But this is a far cry from the sweeping
presumption the Secretary urges upon us, which would have us presume that any of a vast myriad
of violations exists. SeeS. Br. at 26-27.

378

law," Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (citations omitted), a maxim
the Court has repeatedly reaffirmed. See Hughes Aircraft Co. v. US. ex rei. Schumer, 520 U.S.
_ , 117 S. Ct. 1871, 1876 (1997); Lynce v. Mathis, 519 U.S._, 117 S. Ct. 891, 895 (1996)
("The presumption against the retroactive application of new laws is an essential thread in the
mantle of protection that the law affords the individual citizen. That presumption 'is deeply
rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.' ...
In both the civil and the criminal context, the Constitution places limits on the sovereign's ability
to use its law-making power to modify bargains it has made with its subjects."); Landgrafv. US!
Film Products, 511 U.S. 244, 265 (1994) ("we apply this time-honored presumption unless
Congress has cfearly manifested its intent to the contrary"). In its would-be application in this
case, the Secretary's presumption thus ironically runs afoul of a more fundamental presumption.
The Secretary failed to e:1dvance her presumption in the adjudicatory proceeding in which the
record of the case was made. Given a new presumption, the only fair and equitable way to apply
it in the current proceeding would be to provide Topper an opportunity to make a record on
which it could argue that it be exonerated of the Secretary's S&S allegation.
C.

Conclusion

In concluding that Topper's violation was not S&S, we do not mean to suggest that the
violation was not serious. In fact, this violation was extremely serious. Fields intentionally
defied the express direction of the inspector not to alert the miners that inspectors were on their
way to the working section. Such conduct is of the highest order of negligence. We believe, ·
however, that the Secretary' s focus on S&S is misplaced. By fixating on S&S, the Secretary
appears to have lost sight of the impressive array ofprosecutorial resources at her disposal. As
Commissioner Beatty states, "[i]n this case, the Secretary relied only upon the S&S designation,
and the consequences that flow from it, as a prosecutorial tool for penalizing this violation." Slip
op. at 29 (emphasis in original). But as we have pointed out, no consequences flow from it- it
is merely an allegation of seriousness with no deterrent or any other legal effect. Topper's
violation of the M1ne Act is_essentially a square peg that simply cannot be forced into the round
hole ofS&S.
For the foregoing reasons, we find that the judge erred as a matter of law in concluding
that Topper's violation was S&S, and would thus reverse his S&S holding.

Theodore F. Verheggen, Co

379

Distribution
Billy R. Shelton, Esq.
Baird, Baird, Baird & Jones
415 Second Street
P.O. Box 351
Pikeville, KY 41502
Robin A. Rosenbluth, Esq.
Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judges
5203 Lees burgh Pike, Suite 1000
Falls Church, VA 22041

380

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

April 30, 1998

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

v.

Docket No. PENN 94-15

WAYNE R. STEEN, employed by
AMBROSIA COAL & CONSTRUCTION
COMPANY

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

DECISION

BY: Marks, Riley, Verheggen, and Beatty, Commissioners:
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977 ("Mine Act" or "Act"), 30 U.S.C. § 801 et seq. (1994), is before the Commission a third
time. The Commission has twice previously remanded this matter for reassessment of a penalty
against Wayne R. Steen, employed by Ambrosia Coal & Construction Company ("Ambrosia").
Ambrosia Coal & Constr. Co., 18 FMSHRC 1552 (Sept. 1996) ("Ambrosia f'); Ambrosia Coal
& Constr. Co., 19 FMSHRC 819 (May 1997) ("Ambrosia If'). On second remand, the judge
assessed a penalty of $2000 against Steen. 19 FMSHRC 1471 (Aug. 1997)(ALJ). The
Commission granted Steen's petition for discretionary review. For the reasons that follow, we
vacate the judge's penalty assessment and assess a penalty of$1200 against Steen.

I.
Factual and Procedural Backwund
The background facts in this proceeding are fully set forth in Ambrosia I ( 18 FMSHRC at
1553-56), and are summarized in relevant part here. On June 3, 1992, during an inspection of the
Ambrosia Tipple by the Department of Labor's Mine Safety and Health Administration
("MSHA"), a highli:ft was found to have been operated for over a month with bad brakes. !d. at
1553-54. A section 104(d)(l) order was issued to Ambrosia alleging a significant and substantial
("S&S") and unwarrantable violation of30 C.F.R. § 77.1605(b), later modified to charge a

381

violation of section 77.404(a). 1 !d. at 1554. On the basis of-an MSHA special investigation, the
Secretary also proposed that a $3500 penalty be assessed against Steen under section 110(c). Id.
at 1555. Ambrosia and Steen challenged the Secretary's enforcement actions, and the matters
were consolidated and proceeded to a hearing before Administrative Law Judge William Fauver.

M

.

In his first decision, Judge Fauver found that the lack of operable brakes on the highlift
amounted to an unsafe condition and that the operator had failed to remove the equipment from
service despite its knowledge that the brakes were bad. !d. He concluded that Ambrosia violated
section 77.404(a), and that the violation was S&S and the result of Ambrosia's unwarrantable
failure to comply with the standard. !d. at 1555-56. The judge further concluded that, as
foreman, Steen was a corporate agent under section 11 0(c) of the Mine Act, and that he had
knowingly authorized Ambrosia's violation because he knew that the brakes were bad for at least
five days before the inspection, yet failed to repair them or remove the highlift from service. Id.
at 1556. The judge assessed a $4000 civil penalty against Steen. !d.
On review, the Commission affirmed Judge Fauver's findings of a violation of section
77.404(a), that the violation was S&S and unwarrantable, and that Steen was liable for the
violation under section 110(c). !d. at 1556-63. Regarding Steen's penalty, the Commission
concluded that the judge erred because he "failed to set forth findings applying the statutory
criteria [of section 11O(i) of the Mine Act] to Steen as an individual," and remanded the case
with instructions to reassess the penalty. !d. at 1565-66. On remand, the judge stated that he
"considered Respondent Steen's financial situation in [his] original decision," and found that
Steen's financial obligations warranted amortizing the payment of a civil penalty which the judge
assessed at $3500. 18 FMSHRC 1874, 1875, 1876 (Oct. 1996) (ALJ).
In Ambrosia II (19 FMSHRC at 823-25), the Commission vacated the penalty against
Steen and remanded with the instruction to reassess the penalty after making specific findings on
the section ~ 1O(i) criteria regarding ability to continue in business and size in accord with the
Commission's decision in Sunny Ridge Mining Co., 19 FMSHRC 254 (Feb. 1997). In Sunny
Ridge, the Commission held that its 'judges must make findings on each of the [statutory
penalty] criteria [of section IIO(i)] as they apply to individuals." !d. at 272 (emphasis in
original). In Ambrosia II, the Commission further explained that "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 wh~ther the penalty will affect the individual's ability to meet his
financial obligations . . .. With 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." 19 FMSHRC at 824.

1

Section 77.404(a) provides: "Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment in unsafe condition shall be
removed from service immediately."

382

On remand a second time, the parties submitted supplemental briefs, including financial
information on Steen and his wife. 19 FMSHRC at 1472-73. In an unpublished prehearing
order, Judge Fauver stated that "[s]ince Mr. Steen's tax returns are jointly filed, his income and
fmancial obligations will be considered on the basis of household income and fmancial
obligations." Order at 1 n.l (June 25, 1997). The case was then reassigned to Administrative
Law Judge David F. Barbour, who made fmdings on Steen's ability to continue in business and
size. 19 FMSHRC at 1474-75.
Over the objections of Steen's counsel, Judge Barbour followed Judge Fauver's approach
as to household income and financial obligations. Id. at 1474. Finding that Steen and his wife
"do not live economically discrete lives," the judge concluded:
I must make findings based on fiscal reality not its artificial
segmentation. Therefore, I will consider their joint income as
Steen's income, their joint property as his property, and their joint
liabilities as his liabilities.
!d. The judge reduced Steen's penalty from $3500 to $2000, and ordered him to pay the penalty
in 10 monthly installments. ld. at 1475-76.
II.

Disposition
Both Steen and the Secretary agree that the judge erred in failing to segregate the income
and financial obligations of Steen and his wife for purposes of making fmdings on the section
11 O(i) criteria regarding ability to continue in business and size. PDR at 4-7; S. Br. at 9-10.
Both parties further agree that in so doing, the judge failed to abide by the Commission's remand
order to ascertain Steen's individual income and net worth. PDR at 5; S. Br. at 9.
Analogizing to common law principles of property, Steen argues that the judge erred in
attributing to Steen "sole ownership . . . of the property of the marital estate." PDR at 4-5. In
addition, Steen argues that the judge's fmdings are problematic for various reasons of public
policy. ld. at 5-7. Finally, Steen argues that the judge's penalty is excessive. !d. at 7; Steen Br.,
passim. The Secretary argues that "while the judge properly considered Steen's family's income,
expenses, and assets, he improperly failed to then adjust his findings in order to reflect Steen's
individual financial position." S. Br. at 9 (emphasis in original). Notwithstanding her position
on this issue, the Secretary argues "that a proper penalty in this case should be no less than
$2,000, and no more than $3,500, especially wh~n the judge has amortized payment of the
penalty over many months." Id. at 10.
The determination of the amount of the penalty that should be assessed for a particular
violation is an exercise of discretion by the trier of fact, bounded by proper consideration of the

383

statutory criteria and the deterrent purposes underlying the Act's penalty assessment scheme.
Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff'd;736 F.2d 1147 (7th Cir. 1984).2
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).
At issue here is whether section 11 0(c) of the Mine Act, under which Steen has been
found liable for violating section 77.404(a), applies to Steen as an individual or Steen's
household for purposes of determining the extent of his financial liability under section 11 O(i).
Although section 11 O(i) cannot help us resolve this issue since it refers to operators rather than
individuals, proper construction of the provision that forms the basis for Steen's liability, section
11 0(c), does provide an answer.
Section 110(c) subjects "any director, officer, or agent . .. to the same civil penalties . ..
that may be imposed upon a person under [sections llO(a) and 110(d)]." 30 U.S.C. § 820(c).
The first inquiry in statutory construction is "whether Congress has directly spoken to the precise
question at issue." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837,842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is
clear and unambiguous, effect must be given to its language. Chevron, 467 U.S. at 842-43.
Accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d42, 44 (D.C. Cir. 1990). For purposes
of this case, Steen is Ambrosia's agent (Ambrosia I, 18 FMSHRC at 1563)- but his wife clearly
is not, nor has any party to the case even suggested that she be found an agent of Ambrosia. She
thus cannot be subjected to financial liability under section llO(c), which is arguably the effect of
the judge's decision in this case.
The judge noted that, "[l]ike most domestic partners, [the Steens] function as an
economic unit. They commingle economic resources and jointly assume economic
responsibiliti~s ." 19 FMSHRC at 1474. After noting that he had to "make findings based on
fiscal reality not its artificial segmentation" (id.), the judge found that Steen had "monthly family
expenses of$2,965-... [and] monthly family income of$3,156." /d. at 1475. But insofar as her
2

Section 11 O(i) of the Mine Act requires the Commission to consider six criteria in
assessing appropriate civil penalties:
[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 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).

384

earnings and share of the household net worth have been used explicitly by the judge as factors to
adjust the assessed penalty, Mrs. Steen is arguably made to bear an additional and identical
financial burden as that imposed by the Secretary's enforcement action against her husband, an
outcome that is at odds with the plain language of section 11 0(c).
We recognize, of course, that any penalty against an agent under section 11 0(c) will
always have some impact on his or her spouse. But the spouse's share of the household estate
must not explicitly be u~ed as a factor to increase a penalty assessed for a section 11 0(c)
violation. On the other hand, we are not holding that a spouse's share of the agent's household
finances is not at all relevant in assessing a penalty. In this respect, we agree with the Secretary
that "[a]lthough Steen's individual financial position must be analyzed within the context of the
family's financial position, Steen's position and the family's position are not the same thing." S.
Br. at 9. This means that our judges must engage in a two-step analysis in cases such as this one.
First, they must determine a section 110(c) defendant's household financial condition. Then they
must make findings on the section 11 O(i) "size" and "ability to continue in business" criteria on
the basis of the defendant's share of his or her household's net worth, income, and expenses. In
sum, we conclude that the judge erred as a matter of law when he made findings oil the basis of
the financial condition of the Steen household rather than Steen's individual share of the
household's income and financial obligations.
We disagree with our concurring colleague's statement that "the issue of how to view
financial resources when setting a penalty transcends the civil/criminal distinction" (slip op. at 10
n.3 ), a proposition for which no authority is cited. Here, we are construing section 11 O(i) of the
Mine Act, which does not create criminal liability and is not subject to federal criminal
sentencing guidelines. More importantly, as the D.C. Circuit noted in Coal Employment Project
v. Dole, in the Mine Act, "Congress was intent on assuring that the civil penalties provide an
effective deterrent against all offenders." 889 F.2d 1127, 1133 (D.C. Cir. 1989V A criminal
fine, on the other hand, is punitive - "a sum of money exacted of a person guilty of an offense
as a pecuniarY punishment." 21 Am. Jur. 2d Criminal Law§ 613 (1981) (emphasis added). We
thus find no relevant or appropriate guidance in cases involving criminal penalties because
Congress did not intend section 11 O(i) to be a punitive measure.4 See slip op. at 9-10 and cases
cited.
3

The Commission has also noted that ''the purpose of civil penalties [under the Mine
Act] is to 'convinc[e] operators to comply with the Act's requirements."' Ambrosia I, 18
FMSHRC at 1565 n.17 (also citing Consolidation Coal Co., 14 FMSHRC 956, 965 (June 1992),
which recognized the importance of the deterrent effect of civil penalties).
4

Our colleague cites FTC v. Hughes as an example of a civil penalty being assessed on
the basis of the household income of a defendant and his wife. Slip op. at 10 (citing 710 F. Supp.
1524, 1530 (N.D. Texas 1989), appeal dismissed as untimely, 891 F.2d 589 (5th Cir. 1990)). We
do not fmd the Hughes case relevant, however, because the propriety of the penalty calculation
made in that case was not at issue; in fact, the wife's financial situation is not mentioned at all.

385

Normally, having found that a judge erred as a matter of law in considering the section
11 O(i) penalty criteria, we would vacate the penalty and remand the matter to the judge for
assessment of a new penalty. lbis case, however, has simply gone on too long. In interests of
justice and a speedy resolution to this litigation, instead of remanding the case, we will enter the
necessary fmdings based on the undisputed record evidence on Steen's fmancial condition, and
assess a new penalty. Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1153 (7th Cir. 1984).
First, we note that, with respect to Steen's negligence and history of previous violations,
the gravity of the violation, and whether the violation was abated in good faith, the fmdings made
by Judge Fauver that were before the Commission in Ambrosia II were affirmed by the
Commission and are thus the law of the case. 19 FMSHRC at 823-24. As to these criteria, the
judge found that Steen's violation was due to high negligence, that he had no record of prior
violations, and that the violation was serious. 18 FMSHRC at 1875. In his initial decision,
Judge Fauver also found that "[s]ince the inspector red-tagged the vehicle, the question of the
operator's abatement does not arise." Ambrosia Coal & Constr. Co., 16 FMSHRC 2293, 2305
(Nov. 1994) (ALJ).
As to the two remaining criteria, size and ability to continue in business, we fmd that
Steen's share of his household's net worth of $49,41 0 amounts to one half of the total, or
approximately $25,000. Stipulation of the Parties, Ex. C. We further find that Steen's share of
the household's net monthly income of$3156 amounts to roughly 54 percent of the total, or
approximately $1700, and the Steen's share of the household's expenses of $29.65 also amounts
to 54 percent of the total, or approximately $1600. !d. at Ex. B-2; 19 FMSHRC at 1474-75.
Having considered.these findings, we find that a penalty of $1200 will not adversely
affect Steen's ability to meet his fmancial obligations, and is appropriate considering the gravity
of the violation and Steen's income and net worth, negligence, and lack of any previous
violations. We further fmd that in light of Steen's financial obligations, payment of the penalty
may be amortized over a year, with no interest accrued other than on any late payments. See 30
U.S.C. § 820(j). Our penalty assessment is made on the narrowest of grounds. Our findings on
the penalty criteria of size and ability to continue in business as they relate to Steen, and our
ultimate penalty assessment, are based on the particular facts and circumstances of this case, and
may not be applicable to the apportionment of the household finances of all married individuals
found liable under section 11 O(c) in other cases.

386

III.

Conclusion
For the foregoing reasons, we vacate the judge's penalty assessment and assess Mr. Steen
a penalty of$1200 for his violation of30 C.F.R. § 77.404(a), to be paid as directed by the
Secretary in twelve consecutive monthly installme ts of $100 each, with no interest accrued
other than on any late payments.

Marc Lincoln Marks, Commissioner

Theodore F. Verheggen

Robert H. Beatty, Jr., Commjs'sioner

I

387

Chainnan Jordan, concurring:
Although I agree in result with the majority's decision to reduce Steen's penalty to $1200,
I write separately because I reach this conclusion based on a completely different rationale.
Unlike my colleagues, I believe the judge applied the correct analysis to determine Steen's
"ability to continue in business," properly using his household income and liabilities as a
touchstone. However, for reasons entirely independent from the majority's, I find that the judge
abused his discretion in setting the penalty at $2000, and agree that it should be reduced to
$1200.
.
My colleagues insist on considering Stee.n 's income, assets and expenses as if he were a
solitary financial entrepreneur instead of a family man whose assets and liabilities are hopelessly
commingled with those of his wife. The majority holds that the penalty in 110(c) cases must be
based on an individual's share of his or her household's assets, income and expenses. 1 This
ignores the judge's undisputed finding that:
[T)he Steens do not live economically discrete lives. Like most domestic
partners, they function as an economic unit. They commingle economic resqurces
and jointly assume economic responsibilities. They file a joint federal income tax
return .... They jointly hold real property .... Personal property, such as
automobiles and household property, is titled jointly.... They have a joint
personal checking account .... Moreover, as may be inferred from the list of
expenses, they are equally liable for most, if not all, of their debts .... I must
make fmdings based on fiscal reality not its artificial segmentation.
19 FMSHRC 1471, 1474 (Aug. 1997) (ALJ).
I agree with the judge that the only equitable method of setting the penalty in this case is
to acknowledge Steen's actual financial state of affairs and consider him and his wife as an
economic unit, rat~er than pretending that he is economically independent. To evaluate the
statutory penalty criteria of "size" and "ability to continue in business" (which I translate, in a
11 0(c) case against an individual, to mean the ability to remain solvent), one must take into
account the individual's access to income and assets, as well as all of his or her fmandal
liabilities. The pertinent inquiry in determining how a penalty under 11 0(c) will affect an

1

My colleagues state that they are in agreement with the Secretary's position. Slip op. at
5. Frankly, I find it somewhat difficult to ascertain what that position is since she claims that
"[a]!though Steen's individual financial position must be analyzed within the context of the
family's financial position ... an adjustment is necessary to refocus the analysis on the fmancial
position of Steen, the individual." S. Br. at 9. By insisting on taking both family and individual
financial matters into account, without an explanation of how one should relate to the other, the
reasoning of the Secretary remains fairly opaque.

388

individual must include an assessment of the financial resources under his or her control.2
The majority's rationale for using only Steen's individual financial resources as a basis
for the penalty is that 11 0(c) refers to "agent of such corporation" and it is Steen - and not his
wife- who is Ambrosia's agent. I can hardly disagree. However, determining the identity of
Ambrosia's agent- a fairly uncomplicated task- begs a far more intricate question: what is
the most equitable way of determining that agent's penalty?
Contrary to the views of the majority, treating the Steens as the economic unit they really
are does not in any way imply that Mrs. Steen has, through some sleight of hand, miraculously
become an agent of Ambrosia. Slip op. at 4-5. Rather, it simply recognizes what the majority
itself acknowledges: "that any penalty against an agent under section 11 0(c) will always have
some impact on his or her spouse." /d. at 5. This is precisely right, and is the sole implication
of the judge's decision. Under the judge's analysis, Mrs. Steen will undoubtedly bear some
effect of the penalty; this does not in any way mean that she is somehow "subjected to fmancial
liability under section llO(c)," as the majority contends. Slip op. at 4. By merging these two
concepts, the majority has inexplicably intertwined the notions of an individual's statutory
liability with the determination of the effect of that liability (the penalty) on others.
Congress, on the other hand, has had no difficulty in recognizing the difference between
these two concepts. When it enacted criminal sentencing provisions regarding payment
schedules for restitution, for example, it stated that a criminal defendant, in describing his or her
financial resources for a presentence report, must include "the financial needs and earning ability
of the defendant and the defendant's dependents." 18 U.S.C. § 3664(a) (1994). This statutory
language hardly converts the family of a criminal defendant into convicted criminals. Rather, it
is a simple recognition that a dependent's assets and liabilities are relevant in determining
restitution payment schedules. See United States v. Castner, 50 F.3d 1267, 1278 (4th Cir. 1995)
(court takes spouses' income into account in determining appropriateness of restitution orders
and criminal fmes).
In United States v. Fabregat, 902 F.2d 331 (5th Cir. 1990), the court of appeals explicitly
considered the question of whether the district court erred in considering the wealth of a criminal
defendant' s family when setting a $50,000 fine. In this case the defendant was convicted of
conspiring to possess drugs and possessing drugs with the intent to distribute. In interpreting the
federal sentencing guideline factor concerning "the ability of the defendant to pay the fine ... in
light of his earning capacity and financial resources" (id. at 333), the Fifth Circuit stated that

2

The Seventh Circuit, in affirming a $100,000 criminal fine, based in part on an
evaluation of assets titled in the name of the defendant's putative common-law wife, held that it
would be "contrary to the intent of Congress and the Sentencing Commission to exclude from
consideration property that, although titled in another's name, in fact remains within the
defendant's dominion and control." United States v. Granado, 72 F.3d 1287, 1294 (7th Cir.
1995).

389

"[w]e cannot say as a matter oflaw that the wealth of an individual's family is never a financial
resource which can be considered in determining defendant's ability to pay a fine . . . . [I]n reality,
the wealth of a defendant's family can be a very significant asset to the defendant in particular
cases." Jd. at 334. The Court took note of the presentence report, stating that the defendant was
a member of a wealthy upper class family with significant financial resources, and that his family
paid for his college education, legal expenses and other expenses. Jd. The Fifth Circuit did not
find that this appreciation of the family's broader fmancial picture somehow turned the
defendant's relatives into convicted drug dealers. Instead, the Court simply took a pragmatic
approach which recognized the family's ''willingness to share their significant resources" with
the defendant. /d. It appears that this approach has also been adopted by at least one court in the
civil penalty context.3 See FTC v. Hughes, 110 F.Supp. 1524, 1530 (N.D. Texas 1989), appeal
dismissed, 891 F.2d 589 (5th Cir. 1990) (in determining a defendant's ability to pay a civil
penalty, pursuant to the FTC statute, judge takes into account the adjusted gross income of the
defendant and his wife).
In determining an individual's "ability to continue in business" for purposes of setting a
penalty under llO(c), the relevant inquiry must be: what is the individual's discretionary income?
This determination is inevitably affected by his family situation: does the individual's spouse
work? Are there dependent children? What are the household expenses? If his wife did not
have any income, yet incurred sizeable expenses, would the majority insist on recognizing only
Steen's individual expenses? Conversely, what if his wife earned five times the amount of
annual income as Steen, and he continued to have access to all of her funds? Wouldn't a penalty
that failed to take her financial situation into account provide him with a windfall discount? For
these very practical reasons, therefore, I decline to place the income and expenses of an
individual's family under a shield when reviewing a penalty under section 11 0(c).4
Moreover, I fundamentally disagree with the majority's interpretation of the
Commission~s decision in Sunny Ridge Mining Co., 19 FMSHRC 254 (February 1997).

When
we held that judges must make findings on the section 11 O(i) penalty criteria as they apply to
"individuals" (id at 272), we meant "individuals" as opposed to operators" (to whom the
statutory criteria were clearly directed), not individuals as opposed to families. Our opinion in
It

3

Although I recognize, -of course, that this 11 0(c) proceeding is a civil one, the issue of
how to view financial resources when setting a penalty transcends the civil/criminal distinction.
Consequently, for purposes of determining whether a penalty should be based on individual or
household income, both civil and criminal cases are relevant. Both types of laws permit an
adjudicatory body to order monetary sanctions against the named civil or criminal defendant.
Neither type was enacted with the intent to adversely affect. the individual's family.
4

Moreover, the majority's approach could encourage some individual mine directors,
officers or agents to convert the title of assets they own or control from their names into the
names of family members, so that such assets will not be considered in assessing a penalty under
llO(c).

390

Sunny Ridge did not give judges the green light to strip an individual of his or her joint assets and
expenses when setting a penalty. It simply delineated the clear difference between applying the
statutory criteria to a person as opposed to a business. Similarly, when we remanded this case
with instructions that, pursuant to Sunny Ridge, the relevant inquiry was "whether the penalty
will affect the individual's ability to meet his financial obligations" (Ambrosia Coal & Constr.
Co., 19 FMSHRC 819, 824 (May 1997)), we meant personal obligations as opposed to the
business obligations of the operator.

For the foregoing reasons, I cannot find as a matter of law that the judge erred in taking
Steen's household financial situation into account when setting the penalty. Nonetheless, I agree
with the majority, although for different reasons than those relied on by my colleagues, that the
penalty set by the judge was excessive.

In assessing Steen's financial situation, the judge determined that after meeting household
expenses, Steen had available a monthly family income of $191 . 19 FMSHRC at 147 5. He
ordered Steen to pay a $2000 penalty, at a rate of approximately $166 per month for 12 months.
· !d. at 1476. This represents approximately 90% of the Steen family' s discretionary monthly
income. For the Steen family, which has virtually no savings (Stipulation, Ex. C), this penalty
leaves no safety net in case of a financial emergency. Even if no exigent circumstances occur,
the penalty will have a severe impact not only on Steen, but on his entire family.
Although "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." Secretary ofLabor on behalfof Carroll Johnson v. Jim Walter
Resources, Inc., 18 FMSHRC 552, 556 (April 1996) (citations omitted). Here, the judge abused
his discretion in setting a penalty so excessive that it would inevitably lead to great hardship for
Steen and his family. Accordingly, I would reduce the penalty, and agree with the majority that a
reduction of the penalty to $1200 is appropriate.

391

Distribution
Frank G. Verterano, Esq.
Verterano & Monolis
2622 Wilmington Road
New Castle, PA 16105-1530
Jerald S." Feingold, Esq. ·
Offic.e of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Administrative Law Judge David Barbour
Federal Mine Safety and Health Review Commission
2 Skyline, 1Oth Floor
5203 Leesburg Pike
Falls Church, VA 22041

392

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

April 30, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 94-50

v.

CYPRUS EMERALD
RESOURCES CORPORATION

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
ORPER
BY: Jordan, Chairman; Riley and Verheggen, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On March 16, 1998, Cyprus Emerald
Resources Corporation ("Cyprus Emerald") and the Secretary of Labor filed with the
Commission a Joint Motion for Relief from Final Judgment. For the reasons discussed below,
we deny the parties' mot.ion.
On April 26, 1994, the Secretary filed a motion to approve a negotiated settlement of
several citations with Cyprus Emerald. Gov't Ex. A. Included in the motion was the parties'
agreement to sever Citation No. 3658681 and transfer it to Docket No. PENN 94-23. ld ~ 3. On
May 3, 1994, Administrative Law Judge William Fauver granted the motion, but neglected to
sever Citation No. 3658681 which, consequently, was dismissed along with the citations on
which the parties had settled. Gov't Ex. B. Pursuant to section lOS(a) of the Mine Act, 30
U.S.C. § 815(a), the judge's dismissal order became a final order of the Commission 40 days
after its issuance. On March 6, 1998, the parties filed a Joint Motion for Stay with Chief
·Administrative Law Judge Paul Merlin, requesting that Citation No. 3658681 be stayed pending
the Commission's disposition of related citations in Docket No. PENN 94-23 . .Gov't Ex. Cat 2.
On March 10, 1998, Judge Merlin issued an order denying the parties' Joint Motion for Stay, and
directing the parties to address their request for relief to the Commission. Gov't Ex. D.

~93 .

The present motion requests that the Commission reopen PENN 94-23, and stay Citation
No. 3658681 pending the Commission's adjudication of Docket No. PENN 94-23, which
involves identical facts and similar issues, and currently is being considered by the Commission.
Jt. Mot.~~ 4, 7, 13. The parties assert that this relief is appropriate under Fed. R. Civ. P.
60(b)(1 ). 1 They provide no reason for their four-year delay in filing this motion.
The judge's jurisdiction over this case terminated when his dismissal order was issued on
May 3, I994. 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). If the Coriunission does not direct review within 40 days of a decision's issuance,
it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(I). The judge's decision
became final on June 12, I994.
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(I) in circumstances such as mistake, inadvertence, or excusable neglect. See 29
C.F.R. § 2700.l(b) (stating that the Federal Rules of Civil Procedure apply "so far as practicable"
in the absence of applicable Commission rules); see, e.g., Lloyd Logging, Inc., 13 FMSHRC 781,
782 (May 1991) (vacating default order and remanding matter to judge). "The motion [under
Rule 60(b)(l)] shall be made within a reasonable time, and ... not more than one year after the
judgment, order, or proc~eding was entered or taken." Fed. R. Civ. P. 60(b). As we have
previously recognized, this one-year time limit "may not be extended." Lakeview Rock Prods.,
Inc., 19 FMSHRC 26,29 (January 1997) (quoting Pena v. Eisenman Chem. Co., II FMSHRC
2166, 2167 (November 1989)). The parties' motion to reopen this proceeding was filed on
March .18, 1998 - nearly four years after entry of judgment and, therefore, is untimely under

1

Rule 60(b) provides in pertinent part: "On motion and upon such terms as are j ust, the
court may relieve a party or a party's legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect .. . ." Fed. R. Civ. P. 60(b).

394

Rule 60(b)(l). See id at 28-29; Thomas Hale, 17 FMSHRC 1815, 1816-17 (November 1995).
Accordingly, we deny the parties' m<?tion for relief under Rule 60(b)(I)?

James C. Riley, Commissioner

2

Commissioners Marks and Beatty vote to grant the motion.

395

Distribution
Mark V. Swirsky, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Building
3535 Market Street
Philadelphia, PA 19104
Susan Chetlin, Esq.
Cyprus Emerald Resources Corporation
91 00 East Mineral Circle
Englewood, CO 80112-3299
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, Suite 6003
Washington, D.C. 20006

396

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
omcE OF ADMJNISTRAT1VE LAW 1UOOES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VJRGINIA 22041

..APR

7 1998

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

DISCRIMINATION PROCEEDING
Docket No. -pENN 97-157-D
Case No. WILK CD 97-02
Ellangowan Refuse Bank No. 45
Mine ID No. 36-02234

READING ANTHRACITE
COMPANY,
Respondent
DECISION

Appearances: Stephen D. Turow, Esq., Office of the Solicitor, U.S. Department ofLabor,
Arlington, Virginia, for the Complainant;
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, Pottsville, Pennsylvania, for
the Respondent.
Before:

Judge Weisberger
STATEMENT OF mE CASE
..

This case is before me based on a Complaint filed by the Secretary of Labor
("Secretary"), on behalf of William Kaczmarczyk, alleging that he was discriminated against by
Reading Anthracite Company ("Reading") in violation of Section 105(c) of the Federal Mine
Safety and Health Act of 1977 (the "Act"). Pursuant to notice, the case_was heard in Harrisburg,
Pennsylvania, on November 18-19~' 1997 . On February 5, 1998, Reading filed proposed findings
of fact and a brief. On February 9, 1998, the Secretary filed proposed findings of fact and a brief.
On February 18, 1998, Reading filed objections to the Secretary's proposed findings, and a reply
brief. On February 20, 1998, the Secretary filed a response to Readings proposed findings, and a
response brief.
·

397

I. Findin&s ofFact
Based on the Parties' stipulations, Reading's Admissions, and the evidence of record, I
find the following:
1. William Kaczmarczyk was employed by Reading Anthracite in December 1976.
2. Kaczmarczyk was classified as an electrician by Reading Anthracite in 1985.
3. In November 1989, Kaczmarczyk was injured while working at Reading. Following
that injury, Kaczmarczyk was placed on workers compensation status.
4. Kaczmarczyk remained workers compensation status from the time of his injury
through January 1991.
5.
From January into February 1991 , Kaczmarczyk returned to active duty work at
Reading pursuant to its light duty program.

In February 1991 , Kaczmarczyk left active duty and returned to workers
6.
compensation status where he remained until January 1992. During that period of time,
K.azmarczyk underwent surgery and rehabilitation for the injury he had incurred in October 1989.
7. Prior to returning to work under the light duty program in January 1992,
Kaczmarczyk obtained a release from his physician Dr. Keith Kuhlengel on January 2, 1992, that
authorized him to return to work at Reading. Kaczmarczyk presented Dr. Kuhlengel's
authorization to Frank Derrick, Reading's General Manager, and requested that he be allowed to
return to work. Derrick told Kaczmarczyk that Reading would need a second opinion from
another physician, and arranged for an evaluation from Dr. Robert Gunderson, a physician
selected by Reading. Dr. Gunderson examined Kaczmarczyk on January 7, 1992, and
determined that he was physically capable of returning to work as an electrician. Following the
examination, Kaci:marczyk _was permitted to return to work at Reading as an electrician.
8. In January 1992, Kaczmarczyk returned to active employment at Reading in a lightduty program. He worked in this capacity until October 15, 1993, when Reading placed him on
workers compensation status.
9. On September 12, 1994, pursuant to an Order of Temporary Reinstatement issued by
Arthur Judge Amchan1, Kaczmarczyk was returned to light duty employment at Reading.

1/

Judge Amchan subsequently left the Commission to serve as an Administrative Law
Judge with another agency.

398

IO. Kaczmarczyk continued to work in a light duty capacity between September I2, I994,
and September 23, 1995, when he was again placed on workers compensation status.
II . Between September 12, I994, and September 23, I995, David Kerstetter,

Kaczmarczyk's immediate supervisor, did not offer Kaczmarczyk the opportunity to work
overtime or provide him with specific assignments during the regular work week.
I2. In January 1995, Kaczmarczyk requested that he be allowed to drive coal trucks on an
overtime basis.
I3. On January 24, 1995, Kaczmarczyk's physician, Dr. Kuhlengel, provided a Jetter

stating as follow: "He may function as a truck driver on a temporary basis with a maximum of
ten (10) hrs. per week overtime on a trial basis."
14. Kaczmarczyk presented Dr. Kuhlengel's authorization to representatives at Reading
who arranged an examination with a second physician, Dr. Michael Dawson.
15. On March 30, 1995, Dr. Dawson examined Kaczmarczyk, and determined that he was

physically capable of operating the haul truck on an unlimited and unrestricted basis.
16. Kaczmarczyk presented Dr. Dawson' s report to Reading immediately after he

received it, but Reading did not permit Kaczmarczyk to drive the truck on an overtime basis or
perform any overtime work until June 1995, after Judge Amcham had issued his May 24, 1995,
order permanently reinstating Kaczmarczyk to his former position.
I7. On April 26, 1995, the Secretary filed an Emergency Motion to Enforce the Order of

Temporary Reinstatement alleging that Reading had constructively discharged Kaczmarczyk on
April 20, 1995. Judge Amchan found that Reading had violated the provisions of the order of
temporary restatem_ent, but that the environment was not sufficiently intolerable to constitute
"constructive suspension."
18. On May 24, 1995, Kaczmarczyk was permanently reinstated to the light duty program
at Reading pursuant to an order of Judge Amcham.
19. From June 1995 through September 23, 1995, Kaczmarczyk drove a haul truck and a

water truck on an irregular basis at Reading's Maple Hill Site. His physical restrictions did not .
interfere with his ability to perform the tasks associated with the operation of these trucks.
20. Kaczmarczyk never refused to perform any of the duties associated with the operation

of the haul truck or the water truck because of his physical conditions.

399

21. In evaluating Kaczmarczyk's physical abilities during the time period June through
September 1995 When he drove a water truck and a haul truck, most weight was placed on the
determinations of physicians who examined him, rather than the subjective understanding of
Kaczmarczyk regarding these restrictions. Dr. Peter A. Feinstein, who examined him on
June 10, 1994, indicated that Kaczmarczyk could continuously reach above his right shoulder,
lift a maximum of20 pounds, and frequently bend, squat, and kneel. On January 24, 1995, his
treating physician, Dr. Kuhlengel indicated that Kaczmarczyk could function as a truck driver
"on a temporary basis with a maximum of ten (1 0) hours per week of overtime on a trial basis"
(Sec. Ex. 26). Dr. Michael Dawson who evaluated him on March 30, 1995, included that he was
able to work as a truck driver "on an unlimited and unrestricted basis" (Sec. Ex. 10).
Dr. Kuhlengel in a report dated December 20, 1995, indicated that he had examined
Kaczmarczyk on that day, and that he should not lift or carry more than 10 pounds, and not do
any bending, squatting, twisting, pushing, pulling, climbing, kneeling, or overhead work. Based
on an examination on November 13, 1996, Dr. Kuhlengel placed the same restriction on
Kaczmarczyk, but indicated that he should be able to perform work as a truck driver "as long as
the position is within the stated restrictions" (Sec. Ex. 14).
22. In the time period June 1996 through September 1996, Kaczmarczyk told his
immediate supervisor, Dave Kerstetter, that he was interested in driving trucks, and provided
Kerstetter with a Jetter from Dr. Kuhlengel dated September 25, 1996, indicating that he could
return to work with restrictions of lifting 10 pounds, and no bending, pushing, pulling, or
performing overhead work. Dr. Kuhlengel added as follows:" . . . he is able to drive a truck with
an air seat" (Sec. Ex. 13).
23. On October 19, 1996, a temporary truck driver position was posted.
24. The temporary haul truck position required the operation of a haul truck that was used
to haul ash from the co-generation plant.
25. The ash from the co-generation plant was loaded onto the haul truck with a hopper,
which dropped the .fine ash- particles from a height of about 5 to 6 feet onto the bed of the haul
truck. The fme particles of the ash do not produce significant jarring or vibration that is
associated with the loading of large rock and materials onto a haul truck.
26. The haul truck that was used to haul material from the co-generation plant had an
automatic transmission. It also was equipped with an air seat, which reduced the effect of road
bumps and cushioned the ride for the truck operator, and a steering system similar in function to
order to reach the cab of the truck that was used to haul material from the copower steering.
generation plant, an operator must climb approximately 10 steps. During the course of a
workday, a haul truck driver needs to climb the steps onto the truck's cab on only one occasion.

In

27. Once a "bid" is posted, the job listed in the "bid" is traditionally awarded to the most
senior, qualified, Reading employee who bids on the position.

400

28. Kaczmarczyk was the most senior Reading employee to bid on the position of
temporary truck driver.
·
29. The temporary truck driver position was awarded to Harry Markle because Reading
believed that Kaczmarczyk was physically incapable of performing the duties associated with the
position, since Dr. Kuhlengel's statement explicitly releasing Kaczmarczyk to drive trucks also
contained a restriction relating to bending, squatting, pulling, crawling, climbing, and lifting.
30. According to Frank Derrick, Reading's General Manager, an individual does not have
to perform any activities that involve crawling in order to operate the haul truck that is the
subject of this case.
31 . A miner must bend to perform the preshift inspection and to check fluids on the haul
trucks. Derrick indicated on cross·examination that as a result of a grievance, mechanics still
service and start the haul trucks. However, Reading has no written rule directing either
mechanics or truck drivers exclusively to perform these duties. Kaczmarczyk testified that when
he drove the haul truck, he did not check the fluids. Kaczmarczyk testified that the mechanics
performed this task " ... because the practice is ••• our Local Union 807, our job site, states that
the mechanics check the fuels trucks" (sic) (Tr. 324-325). I find this testimony of one individual
who worked on only one shift insufficient to establish that the practice at the site at issue was
that~ the mechanics were to check the fluids, service the vehicles, and start them.
32. Kaczmarczyk testified that in order to check the fluid levels, oil, and antifreeze on the
haul truck, it is not necessary to bend, crawl, twist, push, or pull. He also said that it would take
no more than 5 minutes to check the oil, transmission fluid, and antifreeze levels on the haul
truck that was used to haul materials from the coal generation plant. Since he did not check these
fluids, I do not place much weight on his testimony regarding the activities required to perform
these functions. In contrast, Derrick testified that, in essence, the decision not to award the
temporary truck driver position to Kaczmarczyk was based upon the conclUsion that the latter
could not perform the specific duties involved in operating this position such as bending,
climbing, and squatting. I accept Derrick's testimony that these duties are required as it is
supported by a Job Analysis2 of the truck driver position prepared for Reading by CRA Managed
Care, Inc. ("CRA"), which indicates that these activities are required 10 percent of the time. The
analysis also states that the heaviest weight to be lifted one time is 15 pounds, and that lifting it
above the shoulder is required.

A job analysis is a mechanism that allows Reading to describe in detail all of the duties
associated with a particular position at the mine site in order that a physician can review the job
analysis and determine whether a particular employee is physically capable of performing the
·
duties associated with the position.
Job analyses are developed at the instruction of Derrick and compiled by Reading
managerial employees who are familiar with the duties associated with a particular position or
job at the mine
2/

401

33. Neither Derrick nor any other Reading agent contapted Dr. Kub1enge1 or another
physician to determine whether Kaczmarczyk was physically capable of performing the duties
associated with the truck driver position.
34. There is no evidence that Reading was obligated to contact Dr. Kuhlengel or another
physician in these circumstances. The Secretary's reliance on Article 3(i)(3) of the Reading
Anthracite Company Wage Agreement of 1994 (Sec. Ex. 4) is misplaced. Section 3{i){3), ~
its applies to a miner who was "refused recall from a panel or from sick or injured status." In
contrast, Kaczmarczyk was in workers compensation status, and applied not for recall but for a
job as a temporary truck ·driver. Nor is there evidence that Reading had a practice of contacting
treating physicians or making referrals to other physicians in situations similar to that of
Kaczmarczyk's.
Jay Berger, a UMW District Board Member, testified that on one occasion an employee
who had been off work for 8 years presented Reading with a note from his physician permitting
him to return to work. Reading referred this employee to their doctor for evaluation. This
instance appears to be within the scope of section 3(i)(3), ~ but insufficient to establish a
practice in situations similar to the case at bar.
35. On October 16, 1996, pursuant to the collective bargaining agreement, Kaczmarczyk
had a meeting with Kerstetter to appeal Reading's decision to award the temporary truck driver
position to Markle. During this meeting, Kerstetter told Kaczmarczyk that he was not awarded
the temporary truck driver position because his restrictions prevented him from operating the
haul truck. Following the October 16, 1996 meeting, Kaczmarczyk fil~d grievance No. 97-01
because he believed that Reading had acted improperly in awarding the temporary truck driver
position to Markle.
36. Pursuant to the terms of~e collective bargaining agreement, a Step 2 grievance
meeting was convened on November 6, 1996, to consider Kaczmarczyk's contention that he
should have been awarded the temporary truck driver's position. During the Step 2 proceeding,
Kaczmarczyk told R~ading' s representatives that he had a doctor's authorization to work as a
truck driver, and requested that he be awarded the position.
37. Pursuant to the terms of the collective bargaining agreement a Step 3 Grievance
Meeting was convened on Nove~ber 14, 1996.
38. During the Step 3 meeting, Kaczmarczyk and Berger informed Lenny Haspe,
Reading's representative, that Kaczmarczyk had driven the haul truck in the past "with
restrictions ... at that time also he had" (sic)(Tr. 54). Kaczmarczyk informed Reading that
Dr. Kuhlengel had determined that he was physically able to perform the duties of a haul truck
driver. He presented Reading with a November 13, 1996, report signed by Dr. KuhJengel which
stated that it was "acceptable" for Kaczmarczyk to drive a truck with certain restrictions.

402

Kaczmarczyk requested that Reading prepare a job analysis for the truck driver position in order
to resolve Reading's concern that Kaczmarczyk's physical restrictions prevented him from
working as a haul truck driver.
39. On December 4, 1996, Berger wrote a letter to Derrick stating that Haspe had not
answered questions posed during the Step 3 proceeding regarding Reading's rationale for
refusing to allow Kaczmarczyk to work as a temporary truck driver. Berger asked Reading to
explicitly state its position, and reminded Derrick that Kaczmarczyk had been released by his
physician to drive the haul truck, and that he had driven the truck on prior occasions.
40. On January 13, 1997, Kaczmarczyk wrote a letter to Dr. Kuhlengel regarding his
ability to drive the haul truck. Dr. Kuhengel responded on January 21 , 1997, and stated that
Kaczmarczyk could not load or unload a truck but was "able to drive a truck with an air seat."
Kaczmarczyk provided Kerstetter with a copy of this letter.
41 . On January 31 , 1997, Berger sent a letter to Dr. Kuhlengel seeking to obtain
information for the pending Step 4 Grievance Hearing concerning Kaczmarczyk's ability to
perform certain duties associated with the truck driver position.
42. On February 10, 1997, Dr. Kuhlengel responded to Berger's Jetter and stated that he
did not feel that climbing several steps up to a truck cab "is severely restricted by his condition."
He also opined that a total of 15 minutes a day to check fluid levels "is not unreasonable." He
also restricted the following activities to less than 15 minutes total in an 8 hour day: bending,
squatting, twisting, pushing, pulling, cralwing, climbing, and kneeling.
43. Pursuant to the terms of the collective bargaining agreement, a Step 4 Grievance
Hearing was convened on February 11, 1997. An Umpire selected pursuant to the terms of the
collective bargaining agreement presided at the proceeding, and heard from both parties
regarding Kaczmarczyk's claim that Reading had improperly denied his bid to drive the haul
truck.
44. At the Step 4 proceeding, Berger introduced the February 10, 1997, letter from
Dr. Kuhengel. According to Berger, Derrick was "hot" (Tr. 98) and said "that Bill would be a
downfall of Reading Anthracite Company" (Tr.95), and then "made statements about Bill filing
the case with the EEOC and MSHA" (Tr. 95). In essence, Kac2Jilarczyk corroborated this
version.
In contrast, according to Derrick, Kaczmarczyk had had gotten "out of control" (Tr. 229),
and, in stating his reasons why the Umpire should continue to hear the case mentioned ''that he
would see us all in court. He had charges filed" (Tr. 231 ). According to Derrick, the Umpire
became confused, and be (Derrick) told him, to "set the record straight" (Tr. 231 ), that
Kaczmarczyk had filed charges with the Pennsylvania Human Rights Commission and MSHA.
Ricardo Muntone, an accountant employed by Reading, who was present at the Step 4
proceeding, testified that after the Umpire questioned whether his decision on the grievance

403

would be binding, and Derrick said that Kaczmarczyk had filed similar actions with other
agencies. Neither Muntone nor Derrick specifically denied that Derrick had said that
Kaczmarczyk would be the downfall of Reading. Accordingly, and also based on my
observations of the witnesses' demeanor, I accept the version testified to by Berger and
Kaczmarczyk.
45. The statements that Derrick made at the Step 4 proceeding that Kaczmarczyk was
going to be the downfall of Reading because of the cases he had filed with the Human Rights
Commission and MSHA were not part of thew &.CSll of any offers of settlement made by
Derrick.
46. On February 24, 1997, Reading sent a job analysis fot: the haul truck driver position to
Dr. Kuhlengel. On March 7, 1997, Reading received the completed job analysis from
Dr. Kuhlengel in which he stated that Kaczmarczyk's physical restrictions did not prevent him
from working as haul truck driver.
47. On March 7, 1997, Reading sent Kaczmarczyk a letter informing him that
Dr. Kuhlengel had determined that he was capable of performing the job of a coal truck driver,
and instructed Kaczmarczyk to make arrangements to return to work.
48. On March 10, 1997, Muntone telephoned Kaczmarczyk, and informed
Kaczmarczyk' s wife that he should make arrangements to return to work at Reading.
49. When Kaczmarzyk reported to work at Reading on March 10, 1997, Kerstetter
informed him that there was no work available as a haul truck driver, since Schuylkill Energy
Resources (SER) had completed the construction of a conveyor belt system on March 2, 1997,
which moved ash from the coal generation plant without the use of haul trucks.
SO. As early as August 1994, Reading had become aware that SER would be constructing
a conveyor to replace _the coal. haulage trucks.

51 . Derrick thought SER would complete construction of the conveyor belt system in
February or March 1997.
52. In March 1997, Kaczmarczyk felt that he was physically able to preform the duties
associated with the position of a water truck driver. Between March and April 1997,
K.acm1arczyk requested that a job analysis be made of the water truck position. Muntone
notified Derrick that Kaczmarczyk had requested a job analysis for the water truck position.

53. Derrick instructed Muntone to prepare a job analysis for the water truck position on
March 12, 1997.

404

S4. The water truck was a haul truck modified to allow it to carry water. Operating the
water truck requires climbing approximately eight times a shift, standing a total of an hour, and
walking a total of an hour. Operating the haul truck requires only occasional climbing, and no
standing and walking. All other physical demands of these job are the same.

SS. Derrick ordered the preparation of a job analysis for the water truck position because
be considered the physical demands associated with the operation of the water truck to be more
significant than those ~sociated with the haul truck, since the water truck driver needed to climb
into the water truck's cab more frequently during the shift, and needed to tum a crank in order to
open a value to fill the water truck with water.3
56. Reading completed the job analysis for the water truck position on March 13, 1997,
and sent the analysis to CRA who forwarded it Dr. Khulengel on April 9, 1997.
51. On May 16, 1997, Reading received a job analysis for the water truck position from
Dr. Kuhlengel. Dr. Kuhlengel concluded that Kaczmarczyk's physical restrictions did not
prevent him from work as water truck driver.

58. On May 19, 1997, Kaczmarczyk returned to work at Reading as a water truck driver.
II. Analysis
A. CaseLaw
The Commission, in Braithwaite v. Tri-Star Mining, 15 FMSHRC 2460 (December
1993), reiterated the legal standards to be applied in a case where a miner bas alleged that be was
subject to acts of discrimination. The Commission, Tri-Star, at 2463-2464, stated as follows:
The principles governing analysis of a discrimination case under the Mine
Act are well settled~ A miner establishes a prima facie case of prohibited
discrimination by proving that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that activity.
Secretary on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-800 (October 1980), rev'd on other KJllunds, sub nom. Consolidation Coal
Co., v. Marshall, 663 F.2d 1211 (3nl Cir. 1981); Secretary on behalfofRobinette
v. United Castle Coal Co., 3 FMSHRC 803,817-18 (April1981). The operator
may rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by protected activity.

3/

In 1995, when Kaczmarczyk operated a water truck, be was able to climb into the cab
of the water trunk, and be did not have any difficultly tmning the value used to fill it. However,
be bad subsequently reinjured his back in September 1995.

405

Pasula, 2·FMSHRC at 2799-800. If the operator cannot rebut the prima facie case
in this manner, it nevertheless may defend affinnatively by proving that it also
was motivated by the miner's unprotected activity and would have taken the
adverse action in any event for the unprotected activity alone. Pasula, 2
FMSHRC at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc.
Coal Corporation, v. United Castle Coal Co., 813 F.2d 639, 642 (4111 Cir. 1987).
B. The Secretazy's Prima Ftcie Case
I. Protected Actiyjtjes
The parties have stipulated that the following sets forth the scope of the protected
activities engaged in by Kaczmarczyk:
On October 19, 1993, Mr. Kaczmarczyk filed a complaint with the Mine
Safety and Health Administration alleging that the Respondent had unlawfully
placed him on "worker's compensation" status because he had earlier engaged in
a series of protected activities. The nature of these protected activities, and the
details associated with his involvement in such activities, were the subject of
extensive litigation4 involving the Respondent, about which the Respondent is
aware. Both the activities alleged in the discrimination complaint and the
subsequent litigation, much of which occurred after September 1994, constitute
protected activities under the Mine Act.
On or about July 16, 1995, Mr. Kaczmarczyk reported that the No. 609
truck that he had been assigned to drive was unsafe for him to operate due to the
fact that the truck had a defective air seat and a significant crack in the window on
the passenger side of the vehicle. On the same date, Mr. Kaczmarczyk reported
that the No. 556 truck that he had been assigned to drive was unsafe to operate
due to the fact that the truck had: inadequate service brakes that would not hold
the truck on the hills over which the truck traveled, a defective back-up alarm, and
an inoperable latch on the driver's side door, which prevented the door from
effectively remaining closed while the truck was operated. Mr. Kaczmarczyk
reported these condition$ to David Kerstetter in the area of the Maple Hill Garage.

•t On September 12, 1994, following an evidentiary hearing, Reading was ordered to
temporarily reinstate Kaczmarczyk (16 FMSHRC 1941) A hearing on the merits of
Kacmwczyk's complaint of discrimination was held on March 14, 1995. On May 24, 1995, a
decision was issued holding that Reading discriminated agai.nst Kaczmarczyk because, but for
his participation in MSHA inspections, he would not have been placed on workers compensation.

406

On or about July 27, 1995, Mr. Kaczmarczyk notified David Kerstetter
that the pump at the pumphouse was not working and unclean water was thus
flowing from the pumphouse into a near-by creek. Mr. Kaczmarczyk notified
Mr. Kerstetter that this condition presented a danger to ·the health and safety of
individuals working in, and around, the pumphouse and that the condition may
also constitute a violation of state, and or federal, environmental regulations.
On or about July 30, 1995, Mr. Kaczmarczyk reported that the No. 660
ash truck that he had been assigned to drive was unsafe for him to operate due to
the fact that the.truck had a significant crack in the window on the driver's side of
the vehicle. Mr. Kaczmarczyk reported the condition to David Kerstetter in the
area of the Maple Hill Garage.
On or about August 2, 1995, Mr. Kaczmarczyk refused to operate a truck
that he had been assigned by David Kerstetter to drive because the truck had a
defective air-seat and operating the vehicle in this condition posed a hazard to
Mr. Kaczmarczyk.
·
On or about August 3, 1995, Mr. Kaczmarczyk complained to David
Kerstetter and a UMWA representative that dust from the hoppers at the cogeneration plant was seeping into the cabs of the trucks that were being loaded
with material at the hopper location and creating an unhealthy condition for
himself and other truck drivers.
On or about September 13, 1995, Mr. Kaczmarczyk refused to perform a
portion of job he had been assigned by Frank Derrick because he believed that
performing the task as assigned would have placed him in a situation that may
result in an injury. Specifically, Mr Derrick ordered Mr. Kaczmarczyk to pick up
garbage in an area in which there existed a steep, 20-foot incline protected by a
benn .approximately 5 feet in height. While Mr. Kaczmarczyk did pick up
garbage in the area, he refused to pick up garbage on the incline and the berm,
since he believed that it would be dangerous for him to work in this area, given
the equipment that was available to perform the task and the nature of the work
site.
It also was stipulated that in the time period from September 13, 1995, to October 8,
1996, when Kaczmarczyk bid on the temporary truck job, he did not engage in any safety related
or protected activities.
2. Adverse Actions
The Secretary alleges that the following constitute Reading's adverse actions: 1. On or
about October 16, 1996, Reading awarded Markle the position of temporary haul truck driver,
and 2. Reading denied Kaczmarczyk the opportunity to drive a water truck from March to May
1997. In essence, Reading did not dispute that it took these actions.

407

3. Motivation
Inasmuch as there is no dispute in the record that Kaczmarczyk engaged in protected
activities, and that Reading took adverse actions, the only issue to be resolved is whether there
was a nexus between the protected activities and the adverse actions. In other words in order to
prevail, the Secretary must establish that the adverse action taken by Reading was motivated "in
any part by that activity." (Pasula, sun:a at 2799) The prima facie case may be rebutted by
Reading by showing that the adverse action was in no part motivated by protected activity.5 If
Reading cannot establish this, it may defend affirmatively by proving that it also was motivated
by Kaczmarczyk's unprotected activity and would have taken the adverse action in any event
based upon the unprotected activity alone. (Tri-Star, ~at 2463-2464.)
Essentially it is Secretary's position that discriminatory motivation on Reading's part in
taking the specific adverse actions against Kaczmarczyk, is established by evidence tending to
show that Reading's rationale for these actions was merely pretextual. Reading argues that a
. nexus has not been established due to the long time span between protected activities and the
adverse actions. In this connection it refers to the last protected activity which occurred on or
about September 13, 1995, and the earliest adverse action which was taken on or about October
16, 1996, when Reading awarded another miner the position of temporary haul truck driver.
In general, the Commission in Hicks v. Cobra Mining, Inc., et al. 13 FMSHRC 523
(1991) discussed the principles to be applied in evaluating motivational nexus.
The Commission in previous rulings has acknowledged the difficulty in
establishing a motivational nexus between protected activity and the adverse
action that is the subject of the complaint. "Direct evidence ofmotivation.is
rarely encountered; more typically, the only available evidence is
indirect ... 'Intent is subjective and in may cases the discrimination can be
prove~ only by the use of circumstantial evidence.'" Secretary o. b. o. Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508,2510 (November 1981), rev'd on other
grounds sub. nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983
QUotini NLRB v. Melrose Processing Co., 351 F2.d 693, 698 (8th Cir. 1965).

5

Reading argues that the Umpire's decision in the Grievance Procedure (RAC Exs 2 and
6) fmding that ( 1) Kazmarczyk was not entitled to the truck driver position prior to the step 4
proceeding when he submitted the letter from Dr. Kuhlengel dated February 10, 1997, and
(2) that six allegations of discrimination, which form part of the basis for the case at bar, were
not discriminatory, should be dispositive of the instant proceeding. There is no indication that
the parties to the grievance proceeding were provided an opportunity to fully develop the record,
conduct cross-examination, or present witnesses on their behalf. More importantly, the
grievance proceeding involved adjudicating rights under a union contract. It did not and can not
adjudicate rights under section 105(c) of the Act, which is the exclusive jurisdiction of the
Commission. Accordingly, I do not assign much weight to the decision of the Umpire.
/

408

In Chacon, the Commission listed some of the more common
circumstantial indicia of discriminatory intent: (1) knowledge of the protected
activity; (2) hostility or animus towards the protected activity; (3) coincidence in
time between the protected activity and the adverse action; and (4) disparate
treatment of the complainant. 3 FMSHRC 2510.
Hence, as set forth by the Commission in Hicks, .sup.m, coincidence in time between the
protected activity and the adverse action is only~ indicia of discriminatory intent, and not
dispositive of that issue. Further, as noted by the Secretary, Kaczmarczyk was on workers
compensation status between the date of the last protected activity alleged, and October 16, 1996,
the date of the first adverse action, when he attempted to return to active duty as a temporary
truck driver and the position was awarded instead to Markle. Hence, Reading did not have any
opportunity to take any adverse action against Kaczmarczyk during the period when he was on
workers compensation status. Accordingly, the lapse of time between the protected activity and
the adverse action does not, by itself, prove disprove a nexus between the protected activities and
the adverse action.
On the oilier hand, I accord most weight in evaluating Reading's motivation a statement
made by Derrick at the Step 4 Grievance proceeding. According to Berger, after he offered a
letter from Dr. Kuhlengel dated February 10, 1997, Derrick said that Kaczmarczyk "would be a
downfall of Reading Anthracite Company" (Tr. 95) because of the cases that he had filed with
the EEOC and with MSHA. Berger's version was in essence corroborated by Kaczmarczyk.
Respondent's witnesses Derrick and Muntone presented a different version which Reading
characterizes as no inore than heated comments made during an attempt to resolve a contentious
inatter. Reading asserts that the majority of comments were no more than accurate statements of
facts given to the Umpire as an explanation of the procedural posture of the matter. However, it
is significant that neither Derrick nor Muntone explicitly denied the sPCfCUic statement by
Derrick as testified to by Berger. I therefore accept the version as testified to by Berger and
Kaczmarczyk. I conclude, primarily based on this statement which evidences Derrick's state of
mind and atthude towards Kaczmarczyk's protected activities, that there existed animus toward
the protected activities.6 For all these reasons I fmd that the Secretary has established evidence

6

1 I have considered Reading's argument that the claim that Derrick made discriminatory

comments toward Kaczmarczyk is without merit because the Umpire who rendered the
October 19-29 Grievance decision stated that he could not remember such statements being
made, that because hearings are informal many irrelevant statements are made, and that the
alleged statements in the context of the hearing do not show discrimination. However, I place
more weight, in deciding whether the statements were made, upon live testimony of witnesses
whose demeanor I was able to observe and whose testimony was subject to cross-examination. I
also do not place any weight upon the conclusion of the Umpire, as the issue before him was not
whether an act of discrimination occurred under section 105(c) of the Act.

- 409

of some discriminatory intent on the part of Reading when it took the adverse actions complained
of. Thus I find that the Secretary has established a prima facie case (Secretary on behalfof
Robinette v. United Castle Coal Co., 3 ·FMSHRC 803,817-18 (Aprill981).
C. Respondent's Affirmative Defense
Reading argues that based upon the treating physician's restrictions it was reasonable for
it to have concluded that Kaczmarczyk was not qualified to perfonn the jobs for which he
applied based on the job analyses of these positions until it obtained express approval from the
treating physician based on a job analysis. Reading argued further as follows: ( 1) once the
company obtained a verification from the treating physician, the positions were awarded to
Kaczmarczyk; (2) any delays in obtaining reports were not attributable to the company in
verifying Kaczmarczyk's fitness; and (3) Kaczmarczyk was compensated for lost wages due
any delay. The Secretary argues in his reply brief that Reading's arguments are pretextual in that
it did not contact Dr. Kuhlengel, the treating physician, until February 18, 1997, 4 months after ·
Kaczmarczyk and Berger had requested it to contact Dr. Kuhlengel, that the only motive was one
of retaliation as set forth in pages 9-25 of its brief, and that Reading had abundant infonnation
available that indicated that Kaczmarczyk was capable of perfonn the duties involved in
operating a truck. It was also argued that the back payments it made came only after it was clear
that the company would be obligated to make such payment pursuant to the collective bargaining
agreement, and after Kaczmarczyk had filed his present claim.

to

1 have considered all of these arguments, as well as the balance of the Secretary's
arguments as set forth in the post hearing brief. For the reasons that follows, I conclude that
Reading has established its affinnative defense, and I reject the Secretary's arguments.
In light of Kaczmarczyk's prior history of medically documented back problems which
restricted him from performing various duties in the past and placed him in a workers
compensation status, I find that it was a legitimate business concern of Reading, acting through
its agent Derrick, that Kaczmarczyk be physically capable of operating a haul truck, the position
for which he bid In October 1996. The record establishes that a haul truck operator, hauling
material from the co-generation plant, would be required to climb approximately ten steps up to
the truck's cab only once a shift. In addition the weight of the evidence establishes that bending,
climbing, and squatting are required 10 percent of the time. In addition the operator of the haul
truck is required to lift up to 1S pound ·at one time, and to lift 1S pound above the shoulder level.
The medical reports from physiCians evaluating Kaczmarczyk's functional capabilities in the
12 month period immediately prior to Kaczmarczyk's bid on the haul truck position, provide a
basis for a finding that it was not unreasonable for Derrick to conclude that Kaczmarczyk was
restricted from performing the duties required in operating the haul truck. Dr. Kuhengel
examined Kaczmarczyk on December 20, 1995. In a report dated December 20, 1995,
Dr. Kuhlengel indicated that Kaczmarczyk should not lift or carry more than 10 pounds, and not
do any bending, climbing and squatting. On June 5, 1996, Dr. Kuhlengel examined
Kaczmarczyk. He indicated in a report dated June 5, 1996, that he gave Kac1Jllarczyk
" ... recommendations to return to work with restrictions of lQ pounds lifting and no overhead

410

working, no bcndine, ,pushing or pulling." Most significantly,.when Kaczmarczyk expressed to
Kerstetter his interest in driving a haul truck, he provided Kerstetter with a letter from
Dr. Kuhengel dated September 25, 1996, stating that"... he is able to drive a truck with an air
seat," but setting forth the~ restrictions as he had set forth in his report of June S, 1996, i.e.,
no lifting more than 10 pounds, and no bending, climbing, or squatting all of which are required
to operate the haul truck. Hence, when Kaczmarczyk bid on the truck driver job in October
1996, it was not unreasonable for Denick to have reached a conclusion in that the latter was
medically restricted from perfonning all the duties of a truck driver.
Similarly, the decision by Denick on March 12, 1997, to have a job analysis prepared for
the water truck position for which Kaczymarczyk subsequently applied, which resulted in
Kaczymarczyk's being denied the opportunity to drive a water truck from that date to May 1997,
an adverse action, does not·appear to have been an unreasonable business judgment. Although
Kaczymarczyk had previously been able to perfonn all of the duties involved in operating a
water truck in 1995, he subsequently reinjured his back in September 1995. Hence, there was
legitimate concern whether he would be capable to perfonn the duties required in March 1997.
Although the water truck was a haul truck modified to allow it to carry water, its operation
required climbing eight times a shift, standing a totaJ of 1 hour, and walking a total of an hour.
In contrast, operating a haul truck required only climbing once a shift, and no standing or
walking. All other physical demands of these job were the same. Thus, I find that the ordering
of a job analysis, which delayed the offering ofthejob to Kaczymarczyk, was not such an
unreasonable business decision, as to raise an inference that it was motivated by discriminatory
intent:
Within the context of the above referred to evidence, I find that although the Secretary
established a prima facie case, Reading has established that the adverse actions complained of
would have been taken in either event based solely upon business decisions that were not
unreasonable. I thus conclude that it not been established that Kaczymarczyk was discriminated
against by Reaqing in violation of section 105(c) of the Act. Hence, the Complaint should be
dismissed.
ORDER
It is ORDERED that this case be DIS

Avram Weisberger
Administrative Law Judge

411

Distribution:
Stephen D. Turow, Esq., Office of the Solicitor, U. S. Departinent of Labor, 4015 Wilson
Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail)
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P. 0 . Box 450, Pottsville, PA 17901
(Certified Mail)

dcp

412

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

April 8, 1998

BLUE CIRCLE, INC.,
Contestant
v.

CONTEST PROCEEDING
Docket No. CENT 97-181-RM
Citation No. 7855639; 4/2/97
Modified 7/22/97

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

Tulsa Plant
Mine ID No. 34-00026

DECISION
Appearances: Greg Ruffennach, Esq., Ruffennach Law Offices, Durango, Colorado, for the
Contestant;
Mary Schopmeyer, Esq., Suzanne Dunne, Esq., U.S. Department of Labor,
Office of the Solicitor, Dallas, Texas, for the Respondent.
Before: Judge Bulluck
This case is before me on a Notice of Contest filed by Blue Circle, Inc. ("Blue Circle")
against the Secretary of Labor, acting through her Mine Safety and Health Administration
("MSHA"), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §801 et seq. ("Mine Act"), in which Blue Circle challenges a citation that it was
issued under" section 104(a) of the Act.
A hearing was held in Tulsa, Oklahoma and the parties submitted post-hearing briefs.
For the reasons set forth below, the citation shall be affirmed.
I. Stipulations

The parties stipulated to the following facts:
1. The Contestant is subject to the jurisdiction of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. §801 §seq. ("Mine Act").
2. The presiding Administrative Law Judge has jurisdiction to hear and decide this
matter.
3. The subject citation, as well as the amended citation, were properly issued and served
by a duly authorized representative of the Secretary of Labor, Mine Safety and Health
Administration, upon an agent of the Contestant on the date and place stated therein.

413

4. The Contestant has filed a timely notice of contest.

5. The abatement period, should this violation be upheld by this Court, sbali be eight
weeks from the date of the Court's decision.
U. Factual BackKfound
Blue Circle operates a limestone quarry and cement plant near Tulsa, Oklahoma. The
limestone is mined on site and transported overland to a bulk storage facility where two overhead
cranes (-No. l crane" and -No.2 crane"), traveling the length of the main bay on the same set of
rails at varying speeds ranging from slow to very fast, pick up and dump rock and other bulk
materials into large hoppers (Tr. 103-104, 184; Ex. R-3). Located at the end of the rails are large,
3 x 4 feet metal bumpers (end-stops), designed to prevent the wheels from derailing and causing
the crane to fall some 60 feet to the ground (Tr. 25, 32, 44). One end of the building is enclosed,
while the other end is completely open to the outside (Tr. 44, 80).
While similar in basic design, the cranes were manufactured by different companies
(Tr. 13). 1 Each crane consists of a bridge that spans the east-west distance between the parallel
rails, and runs north and south to the ends ofthe building (Tr. 25, 75, 132, 182). Suspended from
each bridge near the center is a stationary, glass enclosed, operator's cab (Tr. 13, 26, 52, 161), as
well as a trolley that travels east and west on girders affixed to and above the bridge (Tr. 13, 5354, 182-183). The trolley supports two hoists that lift and lower a clamshell bucket, which
moves the bulk materials (Tr. 13, 182). The motion of the bridge, the trolley and the bucket is
controlled by use of levers located within the cab (Tr. 102-103, 184; see Ex. C-4).
The No. 1 crane, newer in design, is equipped with a hydraulic braking system, whereby
its drum brake is applied by a foot pedal during operation of the crane (service brake), or by
application of a console switch, which sets the brake in a parking mode (emergency brake)
(Tr. 167). The No.2 crane was originally manufactured so that its drum brake could be activated
by a hydraulic foot pedal located in the cab (service brake) (Tr. 16, 65, 165-166, 177), or by
electrical means when the operator pulled a lever located behind his chair, which would
disconnect power to the entire crane, as well (emergency brake) (Tr. 14, 131, 137, 164-166).
The crane has four motors: a motor to drive the bridge; a motor to drive the trolley; and two
motors controlling hoist motion-one f<;lr holding the clamshell bucket and the other for
opening/closing the bucket (Tr.·-181-182).
Sometime around late 1989/early 1990, Blue Circle made modifications to the No. 2
crane, which included reconfiguring the cab by installation of a new operator's swivel chair and
two emergency-stop buttons (one on either side of the operator's chair), and removal of the

1

Hamishfeger Industries, Incorporated, using the trade name •P&H" on some of its
equipment, is the manufacturer of the No. 2 crane.

414 '

hydraulic foot pedal (Tr. 14, 139, 168-169, 171-173). At some earlier time, the actual hydraulic
mechanism had been removed from the crane (Tr. 172). As a consequence of these
modifications, the crane has been operated without a service brake and the sole means of
activating the friction emergency/parking brake has been by pressing either of the emergencystop buttons (Tr. 14). Since engaging the emergency brake shuts off the power to the entire
crane, this violent method of stopping is reserved for emergency situations only (fr. 20-22, 28,
130, 162-164, 189).

In order to stop the No. 2 crane during the nonnal course of operations, the operators use
a slowing method or braking means referred to as "plugging," whereby reversing the bridge
motor's torque to create a magnetic field in the direction opposite of that in which the motor is
running, creates friction on the wheels by the back and forth movement, until the crane comes to
a stop (Tr. 15, 70-71, 81, 194).
On April 2, 1997, MSHA Inspector Don Richards conducted an electrical inspection of
the Tulsa plant, pursuant to a hazard complaint (unrelated to the operation of the crane) (Tr. 4749). Upon his arrival, be was met by Blue Circle's safety representative Jerry Dean, who, based
on safety concerns, directed the inspector's attention to the No.2 crane (Tr. 12). During his
inspection of the No.2 crane, Inspector Richards discovered, among other things, the removal of
the hydraulic foot pedal and the installation of the two emergency-stop buttons (Tr. 14).
Inspector Richards then interviewed two crane operators, traveled in the crane with an operator,
and conducted motion/stop tests (Tr. 14, 16, 18-20, 25-26, 28, 40). Based on his observations,
interviews and test results, Inspector Richards issued section 104(a) citation No. 7855639 to
Blue Circle on that day, alleging a significant and substantial violation of30 C.F. R.
§56.141 01(a)(3) [later modified on July 22nd to allege a violation of §56.141 OO(b)], describing
the violation as follows:
The overhead, rail mounted, #2 clamshell crane, located in the south crane storage
building, was observed operating without the factory equipped foot brake that had been
originally installed on it. The brake was removed some months ago and no provision was
made to install another brake. The crane is now stopped by plugging the drive motor.
There are two cranes that operate in the south crane storage building on the same rail at
the same time. They work in close proximity daily and the lack of a foot brake, as a
means of stopping the crane, increases the possibility of an accident or injury. The other
crane has its foot brake intact and operational (Ex. R-1).
III. Findin~:s of Fact and Conclusions of Law
A. Fact of Violation
30 C.F.R. §56.14100(b) provides that: "Defects on any equipment, machinery, and tools
that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to

415

persons." The seminal issue for resolution, then, is whether removal of the manufacturerinstalled hydraulic service brake on the P&H No. 2 crane con.Stitutes a defe.c t that affects safety.

In discussing the broad applicability of the generally worded predecessor regulation, 2 the
Commission has emphasized that the standard must be construed in consonance with the
fundamental protective ends of the Mine Act, so that the "integrity of a machine is not defined
~by its proper functional performance but must also be related to the protection of miners'
health and safety." Ideal Cement Co., 12 FMSHRC 2409, 2414-15 (November 1990) (Ideal!).
1. Defect
In order to establish a violation of this regulation, the Secretary must establish that 1)
there was a defect in the No. 2 overhead crane; 2) the defect affected safety; and 3) the defect
was not corrected in a timely manner to prevent the creation of a hazard. Respecting the first
element of this analysis, the Commission has previously adhered to the ordinary.and mining
industry usage of the term "defect" as a "fault, a deficiency, or a condition impairing the
usefulness of an object or a part. Webster's Third New International Dictionary (Unabridged)
591 (1971); U.S. Department of Interior, Bureau of Mines, A Dictionary ofMining, Mineral and
Related Terms 307 (1968)." Allied Chemical Corporation, 6 FMSHRC 1854, 1857 (August
1984). Moreover, the Commission has held that a missing, as well as a defective component,
may constitute an equipment defect, and the defect or missing component need not affect the
operation of the equipment. 12 FMSHRC 2415; 6 FMSHRC 1857. In the instant case, there is
no dispute that the missing hydraulic service brake on the No. 2 crane constitutes a "defect"
within the meaning of the regulation, Blue Circle concede$ this point, and I so conclude
(C. Br. at 9).
2 . Affects Safety
The parties are in dispute, however, as to whether the defect affects safety. Respecting
this element, the Commission has repeatedly stated that the "phrase 'affecting safety' in the
standard has a wide reach and the 'safety effect of an uncorrected equipment defect need not be
major or immediate to come within that reach." Ideal Cement Co., 13 FMSHRC 1346, 1350
(September 1991) (Ideal II), citing Ideal I, 12 FMSHRC 2415, citing Allied Chemical Corp.,
6 FMSHRC 1854, 1858. Recognizing that adequate notice of the conduct prohibited by the
regulation must be accorded to the operator, the Commission has required that the evidence be
evaluated in light of what a "reasonably prudent person, familiar with the mining industry and
the protective purpose of the standard, would have provided in order to meet the protection
intended by the standard." 12 FMSHRC 2415,2416, citing Canon Coal Co., 9 FMSHRC 667,
668 (April 1987); QuinlandCoal, Inc., 9 FMSHRC 1614, 1617-18 (September 1987). The

30 C.F .R. § 56.9002 (1987) provided that: "Equipment defects affecting safety shall be
corrected before the equipment is used."
2

416

Commission has provided further guidance on application of this objective test by recognizing
"that the various factors that bear upon what a reasonable person would do include safety '
standards in the field, considerations unique to the mining industry, and the circumstances at the
operator' s mine." BHP Minerals International Inc., 18 FMSHRC 1342, 1345 (August 1996),
citing U.S. Steel Corp., 5 FMSHRC 3, 5 (January 1983).
The Commission, in Ideal I, has provided a practical framework in which to make such
analysis, by specifying categories of evidence to be examined in the context of the modified
condition in which the equipment was being used. Within that framework, in the instant case, it
is appropriate to examine, at least, the following evidence: 1) the testimony of Blue Circle
employees and the inspectors regarding whether operating the No. 2 crane without the hydraulic
service brake affects safety; 2) any evidence of whether the presence of the hydraulic foot pedal
impeded the equipment operators' use of the equipment; 3) any evidence of the whether the
operator's safety policies prohibited removal of the hydraulic service brake; and 4) any evidence
of industry or manufacturer's policy on removal of the hydraulic service brake and the
circumstances, if any, under which it could be removed without impairing safety.
See 12 FMSHRC 2416.
The Secretary takes the position that, irrespective of the No. 2 crane's ability to
stop/perform within national industry standards, removal of the hydraulic service brake poses a
hazard to miners' safety (R. Br. at 4). Blue Circle, on the contrary, contends that removal of the
hydraulic service brake does not adversely affect safety, since the crane meets national safety
standards and Occupational Health and Safety Administration (OSHA) regulations, and the crane
can be stopped safely under both nonnal and emergency conditions. Moreover, Blue Circle
asserts that it has been denied fair notice (C. Br. at 7-8).
Inspector Donald Richards testified to having interviewed two crane operators who
related having ·experienced numerous electrical problems on the No. 2 crane (blown fuses, wires
burned off of connections, and power failure to the motor), and who attributed the inability to
hold the crane in one place by plugging, as the cause of collisions between the clamshell bucket
and the cab, knocking off the end-stops, and near-derailments (Tr. 16-17, 19,24-26, 43). He
further testified to having been told of the confusion experienced by new operators, caused by
having to switch between the No. 1 and 2 cranes, with differing braking configurations (Tr. 1920). Moreover, he stated that when he had an operator demonstrate plugging on the No. 2 crane,
by running it from one end of the building to the other at high speed, the violent jumping and
vibrating that occurred, accompanied by tremendous noise, "stressed everything on it" (Tr. 18,
40). ln this regard, the inspector explained that, while pulling and lifting functions usually cause
stress cracks on cranes, violent motion worsens these cracks which, taken to the extreme, have
resulted in derailment and, ultimately, death (Tr. 19, 23-24). Additionally, Inspector Richards
characterized employment of the emergency brake for stopping, as a "last ditch effort," because
of its very violent nature and, due to disconnection of all power, because it deprives the operator
of all control (Tr. 20-22). ln his opinion, operating the crane without the availability of the
hydraulic service brake poses a safety hazard, by depriving the operator of a means of immediate

417

stopping that does not kill the power to the crane completely. .He reasoned that plugging is a
slowing, rather than braking function, which requires estimates based on speed and weight of
load, it neither enables the operator to hold the crane nor does it aid in checking the swing of the
bucket when the operator has to stop suddenly; more importantly, in situations of total power
failure and/or emergency brake failure, it renders the operator powerless, without any brake at all
(Tr. 18, 27-28, 29-32). While Inspector Richards conceded that the crane stopped within OSHA
guidelines,3 he testified that the hydraulic service brake is necessary for safe operation of the
crane, nevertheless, especially in light of the close proximity in which the cranes operate on the
same rails, and since they have already collided (Tr. 38-42).
MSHA Inspector Stephen Dubina, an expert in electrical engineering, performed an
inspection of the No. 2 crane on August 12, 1997, which included visual inspection, stop-testing
using the emergency brake, and interview of crane operators (Tr. 64; see Ex. R-3). Inspector
Dubina testified that, notwithstanding the fact that the crane stopped within CMAA guidelines
using the emergency brake and held the crane ill place (Tr. 66-67, 83, 88);4 the bucket swung
radically (Tr. 83), the crane jerked violently and *you could bear the grinding and other bad
things happening inside the gear cases, so that it's not a thing that you want to stop the bridge
every time using that parking brake" (Tr. 89-90). Plugging is an ineffective braking method, he
explained, because it slows the conveyance, rather than holding it in a specific spot or bringing it
to an immediate stop (Tr. 66-67, 69, 81-82, 86). While the inspector asserted that plugging is the
accepted stopping means used in the industry during anticipated movement, he opined that
during unanticipated movement of a crane (caused by wind, vibrations, or tilted rails, for
example), there exists the potential for injury and the ability to hold the crane in place is crucial
(Tr. 78-80, 84, 94, 96-99). The ability to hold the bridge in place is also crucial to picking up
and dumping loads, he noted, in which case use of the emergency brake is essentially prohibitive
because it cuts off all power to the crane (Tr. 91). He also stated that the operators expressed
concerns about plugging failures in which they were unable to stop until friction actually stopped
the crane or it hit something, and about new operators having difficulty switching between
operating the two cranes (Tr. 68, 72-73).
The Secretary presented compelling testimony of several Blue Circle employees who
have operated or serviced the No.2 crane within the last decade. Jerry Pardue, a 26 year
employee and crane operator from July 1995 to July 1996 (Tr. 117), testified that, due to loss of
control more than a dozen times from power failure and/or emergency brake failure, he had
collided with the other crane, run into the end-stops, and on one occasion when he had gone on

3Judicial notice was taken of applicable OSHA regulations at the hearing (Tr. 207; see

Ex. C-2). Blue Circle concedes that MSHA is not bound by OSHA regulations (Tr. 199; C. Br.
at 13, n. 11).
4

CMAA (Crane Manufacturers of America) is a trade association with an engineering
committee that writes design (industry) standards for overhead cranes (Tr. 178; Ex. R-4).

418

vacation, the relief operator had knocked out all the cab windows with the bucket (Tr. 105-106,
108, 111-112). Pardue asserted that, because Blue Circle did not reinstall the hydraulic service
brake as he had requested, after these incidents had been reported and Pardue had removed the
crane from service for approximately two weeks, he refused to operate the crane without the
brake and ultimately changed jobs in mid-summer 1996 (Tr. 108-113).
25-year employee Jerold Emerson, a crane operator for 3 years (primarily on the No. 2
crane for 1Y2 years) (Tr. 119, 127), testified that he experiences electrical failures in the cab on
an average of 1 to 2 times per week, that he has had the bucket "kiss" the cab, that depressing the
emergency-stop button causes dust to fly evetywhere and loss of control of the swinging bucket,
that it is difficult to hold the crane in one position by plugging, that Y2 of the crane operators are
rookies and have problems switching between the cranes, and that plugging involves guesswork
as to where the crane will stop (Tr.l20-125). Additionally, he expressed his belief that an
operator is better able to predict where the crane will stop by using the hydraulic service brake
than with plugging, and the hydraulic service brake provides a means of stopping in situations
where both plugging and the emergency brake fail (Tr. 123, 127).
David Ford, an employee of 19 years, currently an electrician who services the cranes
and fonnerly a vacation relief operator for 8~ years (Tr. 129), testified to experiencing both
plugging and emergency brake failure, having accidents in which he knocked the end-stops off
the building and the crane almost derailed (Tr. 131-132), being thrown about the cab and
suffering injury resulting in a 5% back disability (Tr. 130), and having another worker riding the
bridge when one of the accidents occurred (Tr. 132-133, 138). Further, he explained that since
the trolley is routinely serviced by workers standing atop the bridge , which "is like a big sail in
the wind, it will move, " it is necessary to for an operator to have a safe means of holding the
bridge in place from the cab (Tr. 142). Moreover; Ford asserted that the hydraulic service brake
permits compensation for overestimates in plugging, that because the two cranes work in close
proximity to each other, it is necessary to have a second method of stopping, and that production
supervisor Don Jon,es instructed him to rely on plugging aru1 the hydraulic service brake to stop
(Tr. 134-136).
Jerry Dean, 25-year employee and fonner miners' union representative, testified to
having received complaints from workers about unsafe conditions on the No. 2 crane, including
inability to stop during power fail~es, and lack of control over the swing of the bucket during
plugging (Tr. 144-147). Furthennore, he stated that he had reported these complaints to
management (Tr. 147).
Blue Circle presented the testimony of utility supervisor Ronald Glover, a 23 year
employee and fonner operator of the No. 2 crane in or around 1966, when it was relatively new
and long before the hydraulic service brake was removed (Tr. 152-153, 155). Glover opined that
removal of the hydraulic service brake did not affect safe operation of the crane (Tr. 153). He
admitted, however, that he had never used the emergency-stop, nor had he experienced plugging
failure (Tr. 154).

419

In considering the next category, whether the hydraulic service brake impeded the
operators' ability to operate the crane, the evidence establishes that the hydraulic service brake
was removed due to frequent leaks of hydraulic fluid (Tr. 138-139, 171). While James Kriel,
senior electrical engineer at Blue Circle, testified on behalf of Blue Circle that the hydraulic foot
pedal was in the way of the swivel chair that had been installed when the cab was modified (the
hydraulic brake mechanism had been removed previously), there is no evidence that the foot
pedal obstructed safe and comfortable operation of the controls (See Tr. 168-169).
The third category of evidence in considering whether safety is affected is whether the
· operator's safety policies prohibited removal of the hydraulic service brake. James Kriel also
testified that he was unaware of who had made the decision to remove the hydraulic brake
mechanism previously or whether Harnischfeger had been consulted, but that it was he who had
made the decision to remove the hydraulic foot pedal from the cab (Tr. 172). He asserted that
safety was not a concern, since the hydraulic system had been unreliable, removal did not
degrade the ability to stop by plugging under normal operating conditions, and an emergencystop system was available in adverse situations (Tr. 169, 171-172).
In considering the fourth category, industry or manufacturer's policy on removal of the
hydraulic service brake, 19-year employee Gary Burch, a maintenance welder and console
operator, provided credible and unchallenged testimony for the Secretary on this issue. Burch
stated that he had received a week of training on the No. 2 crane in late 1996/early 1997, and that
in response to the question of whether the hydraulic service brake should have been removed, the
instructor, a representative ofHarnischfeger Industries, responded that "they're not supposed to
do away with anything that was manufactured on the crane that has to do with the operation or
the safety on it" (Tr. 149-150). Burch also stated that he had related this information to Blue
Circle's safety and maintenance departments (Tr. 150). Moreover, Inspector Richards testified
that, of the overhead cranes he had inspected, none but the No. 2 crane had had the hydraulic
service brake removed (Tr. 49). Andrew Toth, Blue Circle's expert, testified that he would not
recommend removal of hydraulic service brakes on cranes similar to the No. 2 crane as a general
practice, since "there are applications where it's advantageous to use the hydraulic brake for
accurate positioning" (Tr. 215-216). Harnischferer's letter of April18, 1996, to Blue Circle does
not address the circumstances under which the hydraulic service brake could be removed without
compromising safety, but suggests how the P&H No.2 crane, in its modified configuration,
could fulfill OSHA requirements. While Harnischfeger noted that new P&H cranes are equipped
with adjustable frequency electrical controls (designed to automatically brake them without the
use of foot applied brakes) and parking/emergency brakes, it is clear from the record that the No.
2 crane is not equipped with this technology (See Ex. R-3 at 8-9).
Andrew Toth, a retired 35-year employee ofHarnischfeger, designed assemblies for
overhead cranes and hoists (Tr. 176-177). Pursuant to Blue Circle's request that he examine the
No.2 crane, Toth rode in the cab with the operator (without a load) in order to test the crane' s
. braking means and systems (Tr. 185, 208; see also Ex. C-1). He testified that, according to his
test measurements, the crane stopped within industry and OSHA standards when plugged, as

420

well as when the emergency brake was employed (Tr. 186-188, 198-201)_5 He noted, however,
that while the crane stopped smoothly when plugged, the stopping action associated with the
emergency brake was violent (Tr. 189). He asserted, therefore, that the emergency-stop system
should be utilized only when all else fails (Tr. 189). In his testimony, Mr. Toth also emphasized
the pervasive use of plugging in the industry, as an accepted braking means on bridge and trolley
motions (Tr. 190). Although he concluded that the crane is meant to be plugged and that
removal of the hydraulic service brake does not affect safety, he acknowledged that, during his
observation, the operator was unable to hold the crane in position, nor did he, Toth, observe any
tract clamps or other hold-down devices, which he had referenced in his testimony as alternative
holding means (Tr. 202, 205 211; see Ex. C-1 ). Moreover, Mr. Toth stated that he only talked to
the operator on duty, and that he did not ask his opinion as to whether the missing brake posed a
safety problem (Tr. 209).
It is important to note, at this juncture, that all of the witnesses were credible, and gave
clear and concise accounts of their experiences which, with minor exceptions, were unrebutted.
Based on the personal accounts of power failures, accidents and near-misses by the operators,
notwithstanding the ability of the crane to stop within industry and OSHA guidelines, it is clear
that there are times when the ability to hold the crane is crucial. James Kriel even acknowledged
that hydraulic brakes were designed "from an operational point, to allow you to precisely
maneuver the crane to an exact point" (Tr. 174). The evidence of record is overwhelmingly
contrary to his conclusion, however, that "[i]n our operation, we ~on't have to precisely
maneuver it to an exact point" (Tr. 174). While Blue Circle seeks to minimize the personal
accounts of those crane operators whose very lives have been placed on the line by diminished to
non-existent ability to stop and/or control the crane, their cumulative testimony, when considered
in conjunction with the enormity of the crane, its suspension on the rails and tandem operation
with the other crane, establishes the need for the highest degree of maneuverability that is
technologically possibly, as opposed to reduction of any safety devices that have already been
provided for that purpose. Moreover, the record is replete with credible accounts of power
failures and failed sy$tems that have left the miners to the mercy of the crane coasting to a stop
on its own. For all the. obvious reasons that it is unfathomable that an automobile driver lack
control of his vehicle in any aspect of its operation, on a larger scale, it is all the more obvious
that a crane operator must be provided with all available means of controlling this enormous
machinery, especially when life and limb are in ieopardy (See Tr. 21, 69-71). To the extent that
Blue CircJe has premised its positi9Jl solely on the functional performance of the crane in terms
of industry standards, it has neglected to duly consider the electrical system and/or emergency
brake failures which have already occurred and cannot be ruled out in the future, and, therefore,

sJudicial notice taken of applicable ASME (American Society of Mechanical Engineers)

standards at the bearing (Tr. 207). ASME is a professional association of manufacturers, users
and other interested parties that writes consensus (safety) standards in performance language
which, after distribution and comment under procedures accredited by the American National
Standards Institute (ANSI), become American National Standards (Tr. 178-179; Ex. C-3).

421

it has failed to prioritize the safety of the miners, as required by the standard. By so doing, it has
deprived them of the enhanced protection that the hydraulic service brake was designed to
provide. I am persuaded that plugging is generally accepted in the industry as the preferred
stopping means under normal conditions, but I am equally persuaded that, under extraordinary
circumstances, the emergency brake alone (stressing the crane and non-performing on occasion)
does not provide the level of protection that was envisioned by the original design of the crane. I
find, therefore, that removal of the hydraulic service brake comes within the ambit of the "wide
reach" covered by §56.1~100(b), and is a defect affecting safety.
3. Timely Correction
Respecting the last element in establishing a violation, whether the defect was corrected
in a timely manner, it is a matter of record that Blue Circle has not attempted to replace the
hydraulic service brake, nor has any intention of doing so. Accordingly, I fmd that the safety
defect was not corrected in a timely manner.
4. Conclusion
Section 56.1 of the regulations, 30 C.F.R. §56.1 makes known that: "The purpose of these
standards is the protection of life, the promotion ofhealth and safety, and the prevention of
accidents." If Blue Circle was unaware of the necessity of the maintaining the hydraulic service
brake on the crane at the time it elected to remove it, it certainly became aware that the brake
should be reinstalled when the operators reported the power failures, emergency brake failures
and accidents, and when Jerry Pardue removed the crane from service. I find that a reasonably
prudent person, familiar with the mining industry and the purpose of the regulations, would have
reinstalled the hydraulic service brake on the No. 2 crane, at least, immediately after Jerry Pardue
reported the simultaneous plugging/emergency brake failure, or while it was red-tagged by
Pardue for two. weeks to prevent future accidents, such as those that have caused David Ford's
back disability and the Missouri fatality referenced by Inspector Richards in his testimony
(Tr. 19). Therefore, .I conclude that Blue Circle violated section 56.14100(b) of the regulations.
B. Si~nificant and Substantial
Section 104(d) of the Mine Act designates a violation "significant and substantial" (S&S)
when it is "of such a nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A violation is properly designated S&S
"if, based upon the particular facts surrounding the violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set forth the
four criteria that the Secretary must establish in order to prove that a violation is S&S under
National Gypsum: 1) the underlying violation of a mandatory safety standard; 2) a discrete safety

422

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. See also Buck Creek Coal, Inc.
v. FMSHRC, 52 F.3d 133,135 (71h Cir. 1995);AustinPower.Inc. v. Secretary, 861 F.2d 99, 103104 (Sih Cir. 1998), affg 9 FMSHRC 2015,2021 (December 1987) (approving Mathies criteria.
Evaluation of the third criterion, the reasonable likelihood of injury , should be made in the
context of"continued mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July
1998). Moreover, resolution of whether a violation is S&S must be based "on the particular facts
surroundmg the violation." Texasgulf, Inc., 10 FMSHRC 498, 501 (Apri11988).
Inspector Richards found the violation to be S&S. He testified that he had determined it
"reasonably likely" that an injury would occur, based on information that he had received from
the crane operators that they had already had incidents of a broken light and knocked off endstops due to inability to stop, and that such injury would result. in "lost workdays or restricted
duty," since the crane operators, without seatbelts, could be thrown about the enclosed metal cab
(Tr. 26-27). I find, based upon the evidence, that there was a reasonable likelihood that collision
with the other crane or the end-stops, and/or collision between the bucket and cab, contributed to
by the removal of the hydraulic service brake, would result in an injury of a reasonably serious
nature. Therefore, I conclude that the violation was "significant an~ substantial."
OBDER

Accordingly, Citation No. 7855639 is hereby AFFIRMED, and this Contest Proceeding
is DISMISSED.

(]~., - ~~ IL.di_ . AI

fttineR.B~
Administrative Law Judge
Distribution:
C. Gregory Ruffennach, Esq., 450 East 3rd Avenue, Durango, CO 83101 (Certified Mail)
Mary Schopmeyer, Esq., Suzanne Dunne, Esq., Office of the Solicitor, U.S. Department of
Labor, 525 Griffm Street, Suite 501, Dallas, TX 75202 (Certified Mail)
·
/mh

423

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOTII FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 21041

APR 1 0 1998
ASSOCIATED ELECTRIC
COOPERATIVE, INC.,
Contestant

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

CONTEST PROCEEDINGS
Docket No. CENT 97-164-R
Citation No. 4264782; 6/23/97
Docket No. CENT 97-165-R
Order No. 4264783; 6/23/97
Thos. Hill Energy Center
Mine ID 23-02155
DECISION

Before: Judge Feldman
These contest proceedings concern Associated Electric Cooperative, Inc.'s (AECI' s),
refusal to allow the entry of a Mine Safety and Health Administration (MSHA) inspector into
AECI' s electric power generating facilities at Thomas Hill located in Randolph County,
Missouri. At issue is whether AECI's coal handling operations at its Thomas Hill facilities
constitute the "work of preparing coal" as contemplated by section 3(h)(l) of the Federal Mine
Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 802(h)(l), thus subjecting AECI to
Mine Act jurisdiction. Section 3(h)(2)(i) of the Mine Act defmes the "work of preparing coal" as
".. . the breaking, crushing, sizing, cleaning, washing, drying, mixing, storage, and loading of
bituminous coal, lignite, or anthracite, and such other work of preparing coal as is usually done
by the operator of a ~oal mine."
The nature of the coal preparation process performed by AECI at Thomas Hill is not in
dispute and is set forth in the parties' stipulations. Briefly stated, AECI's Thomas Hill power
plant receives by rail approximately 83,000 tons of coal weekly from mines located in the
State of Wyoming operated by Powder River Coal Company, a subsidiary of Peabody Holding
Company. Coal extracted from the Wyoming mines is crushed prior to shipment to a size such
that the largest pieces of coal will pass through a 2 Y% inch hole.
Upon arrival from Wyoming, each trainload of coal passes through AECI' s "Car Dumper
Building" where coal is dumped into hoppers one carload at a time. At the top of each hopper a
11
grizzly", or grate, removes large clumps of coal or other material that could block the hoppers.
From the dump hoppers, coal is transported through the Sample Building, Transfer House No. 3
and, ultimately, Transfer House No. I, by means of a conveyor system with a series of
electromagnets installed to remove any scrap metal and other impurities from the coal. It is
important to remove metal debris such as tools, bulldozer bucket teeth, railroad spikes, etc., so

that AECI' s equipment used later in the process, e.g., coal crackers, crushers, pulverizers and
burner units, is not damaged.
After moving through Transfer Hotise No. 1 the coal is directed by conveyor in one of
two directions for final coal preparation tailored for the requirements of three of Thomas Hill' s
individual generating units. At Units 1 and 2, coal is conveyed to the Crusher House where
two Pennsylvania hammer mill crushers crush the coal to a size of~ inch. At Unit 3. the coal
is initially conveyed through coal crackers that break larger clumps of coal into smaller sizes.
The coal is then conveyed into a granulator (ring crusher) to ensure sizes no greater than
1Y2 to 2 inches. The sized coal is then stored in silos for the different generating units.
The storage silos are located in the power generation building.
In September 1995, the Occupational Safety and Health Administration (OSHA)
received a complaint from a Thomas Hill Energy Center employee concerning hazards associated
with the inhalation of suspended coal dust as well as hazards related to potential combustion of
accumulated coal dust at the track hopper feeder and in conveyor belt tunnels. After visiting
Thomas Hill, OSHA informed AECI that it was referring the complaint to MSHA. As a result of
OSHA's referral, in March 1977, MSHA, after several consultations with AECI officials, issued
a jurisdictional determination citing the boundary between OSHA ~d MSHA jurisdiction at the
point where coal is unloaded using the rotary car dumper onto conveyors that ultimately transport
coal into the power generation building. In June 1977, MSHA offered to meet with AECI for the
purpose of discussing the Mine Act and regulations. However, AECI informed MSHA that it
would refuse to permit an inspection because it objected to MSHA jurisdiction.
On June 23, 1997, MSHA Inspector Larry G. Maloney was refused entry to the
Thomas Hill power plant. Maloney issued Citation No. 4264782 alleging a violation of section
103(a) of the Mine Act, 30 U.S.C. § 813(a), which requires mine operators to permit MSHA
representatives to enter mine property. AECI was given 30 minutes to abate the alleged
violation. Having failed to do so, Order No. 4264783 was issued pursuant to the provisions of
section 104(b) ofthe_Mine Act, 30 U.S.C. § 814(b), that require timely abatement of cited
violations by mine op~rators. -As a consequence of AECI' s continued refusal to submit to an MSHA inspection,
on July 3, 1997, pursuant to section 108(a)(l)(D) of the Act, 30 U.S.C. § 818(a)(l)(D), the
Secretary filed a civil action for inJ':Ulctive relief with The United States District Court for the
Eastern District ofMissouri. 1 Unaware of the initiation of the civil action, on )uly 16, 1997,
AECI mailed its Notice of Contest with respect to the subject citation and order.

1

Section 108(a)(l)(D) authorizes the Secretary to seek permanent or temporary injunctive
relief in the district court of the United States for the district in which the coal mine is located
whenever an operator refuses to permit inspection.

425

On September 15, 1997, AECI filed a motion to stay these contest proceedings, asserting
the pending civil.injunctive action and these proceedings create a "multiplicity of litigation."
AECI's stay request was denied by the undersigned on October 8, 1997. The stay was denied
because the issue before the District Court, i.e., whether temporary injunctive relief should be
granted, was distinguishable from the ultimate jurisdictional issue before me.
In view of the extensive and detailed stipulations filed by the parties and the absence of
outstanding unresolved material issues of fact, I had anticipated disposing of this case by
summary decision. However, on February 24, 1998, the Secretary furnished the February 18,
1998, decision of the U.S. District Court for the Eastern District of Missouri permanently
enjoining AECI from refusing to permit MSHA inspections at the Thomas Hill Energy Center.
Herman v. Associated Electric Cooperative, Inc., No. 2:97CV39-DJS (E.D. Mo. Feb. 18, 1998).
The District Court noted·section 108(a) of the Mine Act expressly provides primary district court
jurisdiction when the Secretary seeks injunctive reliefto enjoin habitual violations of health and
safety standards. Slip op. at 2. The District Court also concluded it had concurrent jurisdiction
with this Commission with respect to the underlying jurisdictional issue because disposition of
this matter rests upon stipulated facts, and resolution of this case is "largely controlled by
precedent of both the [Federal Mine Safety and Health Review] Commission and Courts of
Appeals." Id. at 4.
In view of its primary and concurrent jurisdiction, the court declined to defer to the
Commission by issuing a preliminary injunction pending the disposition of this administrative
proceeding. Rather, the court exercised its jurisdiction by consolidating its consideration of the
preliminary and permanent injunctions, and, permanently enjoined AECI from refusing to permit
MSHA inspections at its Thomas Hill facility. Id. at 15. AECI has filed a Notice of Appeal of
the District Court judgement.
I construed the Secretary's February 24, 1998, submission of the District Court's decision
as an assertion that the doctrine of collateral estoppel applies in these matters. Consequently,
on March 6, 1998, AECI was ordered to show cause why it should not be precluded from
prosecuting its contests of the subject citation and order given the District Court's resolution of
the jurisdictional issue.
AECI responded to the order to show cause on March 27, 1998. AECI, citing case law
that collateral estoppel is only applicable where the original judgement was rendered by a court
of competent jurisdiction, asserts the court did not have jurisdiction to issue a permanent
injunction in this case. Consequently, AECI urges this Commission to address, prior to applying
the doctrine of collateral estoppel, whether the District Court was a court of competent
jurisdiction.
Alternatively, notwithstanding the question of district court jurisdiction, AECI contends
the Commission should exercise its discretion and not apply collateral estoppel in this matter
because AECI did not have "a full and fair opportunity to litiga~e the ultimate Ourisdictional]
fact issue ..." that is now before the Commission because it believed the only pending issue
before the District Court was a preliminary injunction.

426

Finally, AECI requests this matter be stayed pending the outcome of its appeal of the
District Court's deCision if the Commission declines to issue a decision on the merits.
The Secretary responded to AECI's response to the order to show cause on April2, 1998.
The Secretary asserts collateral estoppel should apply because the District Court had the
discretion to permanently enjoin AECI from refusing to allow MSHA inspections rather than
delaying its issuance of a permanent injunction until a Commission decision on the merits.
With respect to AECI' s claim that it did not have a full opportunity to be heard in district court,
the Secretary points out ~at the detailed stipulations filed in this proceeding are identical to the
stipulations filed in the injunctive relief matter. Moreover, the parties filed extensive briefs
devoted to the "merits" question in district court.
Discussion
The doctrine of collateral estoppel provides that, once an issue is actually and necessarily
determined by a court of competent jurisdiction, the determination is conclusive in subsequent
suits based on a different cause of action involving a party to the prior litigation." Montana v.
United States, 440 U.S. 147, 153 (1979). Collateral estoppel serves ''the dual purpose of
protecting litigants from the burden of relitigating an identical issue with the same party . . . and
of promoting judicial economy by preventing needless litigation." Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 326 (1979) citing Blonder-Tongue Lab, Inc., v. University oflll. Found.,
402 u.s. 313, 328-29 (1971).
As a threshold matter, AECI's assertion that the District Court decision is not dispositive
is in s~k contrast with its September 15, 1997, motion to stay this administrative proceeding
wherein it stated:
Contestant did not intend to cause a multiplicity of litigation and may not have
filed the Notice of Contest [initiating this administrative contest proceeding] if it
had been ~ware of the fact that the [Secretary had] already [filed in] District
Court.
The [Secretary] has correctly stated to the District Court that resolution of this
matter will tum chiefly on the court' s determination of issues oflaw. It is
anticipated that the issues of law will be submitted to the court on an agreed or
substantially stipulated record of facts. The court will not require this
[Commission's] expertise to find the facts and will not be bound by the
[Commission's] conclusions of law.
For judicial and administrative economy and to spare expense to the government
and this citizen, this administrative proceeding should be stayed. (Contestant's
Stay Motion, pp. 1-2).

427

Undaunted by the above cost-benefit analysis advanced in support of its motion for stay
concerning unnecessary multiplicity of litigation, AECI now argues the Commission should not
give recognition to the court's adverse decision. AECI, however, has provided no adequate
justification to preclude the applicability of collateral estoppel. While, as AECI contends,
a party may collaterally attack the validity of a judgement for lack of subject matter
or personal jurisdiction, it is clear that these deficiencies were not present in the court
proceeding. In addition, an administrative proceeding is not the proper forum for collaterally
attacking a federal court decision. Rather, the jurisdictional issue in this matter is where it
belongs -- in the Eighth Circuit.
Moreover, as proceedings under the Mine Act are subject to federal appellate review,
it would be inappropriate for this Commission to substitute its judgement for that of a
court of appeals as to whether a district court had jurisdiction to render permanent injunctive
relief. In addition, section 106 (a)(l) of the Mine Act, 30 U.S.C. § 816(a)(l), provides that
Commission decisions are reviewable in the circuit in which the violation allegedly occurred, or,
in the D.C. Circuit. Thus, given the pending appeal in the Eighth Circuit, a Commission decision
on the merits in this case could result in appeal of the same issue in different appellate circuits.
Finally, I am not persuaded by AECI' s contention that the Commission should exercise
its discretion and decide this case on the merits despite the court decision because AECI did not
have ''a full and fair opportunity" to be heard. As noted above, AECI has previously opined
before this Commission that the court was fully capable of resolving this jurisdictional question.
Moreover, the court relied on the same stipulations and arguments that have been presented by
the parties in this matter. Contrary to AECI's assertion, the court's decision, which sets forth the
pertinent, well settled Commission and federal case law, reflects this jurisdictional question was
fully presented and thoroughly considered.
Finally, AECI has presented no basis for staying this matter pending its Eighth Circuit
appeal of the permanent injunction as long as the permanent injunction remains in force.

ORDER
Accordingly, the doctrine of collateral estoppel applies in this contest matter.
Consequently, IT IS ORDERED that Associated Electric Cooperative, Inc.'s contests of
103(a) Citation No. 4264782 in Docket No. CENT 97-164-R, and 104(b) Order No. 4264783 in
Docket No. CENT 97-165-R, on the basis of its assertion that it is not subject to Mine Act
jurisdiction, ARE DISMISSED with prejudice, as long as the attached judgement permanently
enjoining AECI from refusing to permit MSHA inspections at its Thomas Hill power plant
remains in effect.

Jerold Feldman
Administrative Law Judge

4 28

Distribution:
Rodrick A. Widger, Esq., Andereck, Evans, Milne, Peace & Baumhoer, 1111 S. Glenstone,
Springfield, MO 65808 (Certified Mail)
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)

/mh

429

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMl:SSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.APR 1 3 1998
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CnnLPENALTYPROCEEDINGS
Docket No. KENT 97-321
A. C. No. 15-02263-03539

v.
Docket No. KENT 98-9
A. C. No. 15-02263-03540

LONE MOUNTAIN PROCESSING, INC.,
Respondent

Darby Fork No. 1 Mine
DECISION

Appearances: Mary Sue Taylor, Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Secretary;
Frencbette C. Potter, Esq., Arch Mineral Corporation, Saint Louis, Missouri,
for the Respondent.
Before:

Judge Weisberger

These cases, consolidated for hearing, are before me based on Petitions for Assessment of
Civil Penalty filed by the Secretary ofLabor{Petitioner) alleging violations by Lone Mountain
Processing, Inc. (Respondent) of mandatory safety regulations set forth in Title 30 of the Code of
Federal Regulations. Pursuant to a notice, these cases were heard in Johnson City, Tennessee, on
January 14, 1998. ·Petitioner_ and Respondent each filed proposed findings of fact and a brief on
February 20, 1998. ·
FINDINGS OF FACT AND DISCUSSION
I. Docket No. KENT 97-321

A. Citation No. 4074103
At the hearing, Petitioner indicated that Citation No. 4074103 was vacated and moved to
withdraw the citation. Based on Petitioner's as~ertions at the bearing, the motion was granted
directing that citation be dismissed.

430

B. Citation No. 4581438
1. Violation of30 CFR § 75.370(Fl)

Lawrence Rigney, an MSHA inspector and health specialist, inspected Respondent's
Darby Fork No. 1 underground coal mine on June 11, 1997. Upon his arrival at the mine at the
beginning of the day shift, he placed dust pumps on the miner operator, two roof bolters, and the
scoop operator. Rigney then rode inby to the working section with these miners and the
remaining crew. The men traveled in a rubber-tired diesel-powered mantrip inby in the roadway
entry. The entry was ventilated by air which coursed in the entry inby, but exited the entry
through a regulator at a point outby the face.
According the Rigney, as the mantrip commenced to travel inby he noticed the roadway
was "rather dusty," (Tr. 20). It was Rigney's testimony that as the mantrip proceeded further
inby the mantrip' s wheels stirred up dust, and dust hung over the mantrip. Rigney then put on a
dust respirator. Rigney also saw dust in the beam of his cap light. According to Rigney, the
roadway was not damp and was "extremely dry and dusty" (Tr. 23). He indicated that the
roadway, up to four to five brakes outby the face was"okay,'' but further outby at that point it
became dusty. Rigney indicated that there was an area of dust in the air that commenced
15 to 20 crosscuts from the face and continued 10 to 15 crosscuts. 1 He estimated that it took
8 to 10 minutes for the mantrip to travel through the area of dust. Rigney issued a citation that
initially alleged a violation of30 C.F.R. § 75.360(a)(1), but was subsequently amended to allege
a violation of30 C.F.R. § 75.370(a)(l), which requires the operator to follow its ventilation plan.
The ventilation plan provides, as pertinent, as follows: "Dust will be controlled at the following
locations by: • • • [r]oadways and travelways where equipment is operated [k]leanyp. [rJoclc
dustin& and Water to dampen" (sic) (Jt. Ex. 6, p 6-22).
John Richardson, the mine superintendent, traveled inby along the same roadway as the
inspector but 15 minutes after the inspector, and in another mantrip. Richardson indicated that
he did not see any dust in the roadway and that Rigney did not tell him that he was going to issue
any citation, nor did Rigney tell him that be saw any dust. According to Richardson,
commencing at the face and running outby approximately three quarters of the roadway distance,
the condition of the roadway was real muddy, and there was standing water present. He said that
the balance of the roadway was-damp. Richardson explained that the roadway floor in the area
that be described as being real muddy, had been cut lower than the rest of the roadway, and that
water accumulates there. He noted that approximately one month prior to June 11, 1997,
underground water pipes had broken, and on one day there were seven breaks. According to
Richardson, the roadway was damp, rock dusted, and had been cleaned.

1

The crosscuts were at 80 foot centers.

431

Michael Ray Ellis, Jr., the day shift section foreman, operated the mantrip the inspector
traveled in on June 11. According to Ellis, the inspector sat directly behind him facing inby.
Ellis described the roadway as being "damp to extemely wet, muddy" (I'r. 123), and referred to
the same area as noted by Richardson. He opined that the roadway was clean, rock dusted, at
least damp, and :•muddy in most areas" (Tr. 127). He did not note any dust settlli1g on his
clothing, or on the mantrip which was white in color. He also testified that Rigney did not have
his respirator in place. In essence, according to Ellis, the only dust that he noted while traveling
inby occurred in a damp area, when the mahtrip was stopped to retrieve equipment that had fallen
from the mantrip. According to Ellis, a small amount of dust appeared and remained in the area
for 2 to 5 seconds.
Tommy Shackelford n, a section repainnan, traveled in the mantrip sitting next to Ellis.
Shackelford corroborated Ellis' testimony regarding the dust that arose when the mantrip was
stopped to retrieve an article of equipment. He was asked to describe the quantity of dust that
arose in the air, and he said it was 11Very little" and some$ing like the dust that kicks up when a
player slides into a home plate. He described the roadway as being damp, with water holes, and
that the entire roadway was ..more or Jess sloppy mud" (I'r. 150). However, the areas outby were
not as muddy. He did not see any dust settle on any clothes of those persons in the mantrip.
I observed Rigney's demeanor and found his testimony credible regarding the dust in the
air that he observed. There is no evidence in the record to impeach this testimony on the basis of

bias or any other improper motive. Further, I find the testimony of Respondent's witnesses
regarding their observations to be of insufficient weight to rebut or outweigh the inspector's
testimony. Richardson traveled in another mantrip 15 minutes after the inspector, and thus was
not in a position to negate the testimony of the inspector as to what was observed by him at the
specific time of his observation. Further, upon cross examination, it became apparent that the
degree of attention to which Richardson paid the condition of the roadway was not the same as
the inspector. ~ this connection, I note the following testimony of Richardson:
Q. So is it possible you weren't paying the kind of attention to the roadways you
would have been if you had noticed that somebody thought that they were dusty

going in?
A. If somebody would have told me or I would have notice it, yeah, I would have
paid more attention, yes (Tr. 11 0).
It appears from further cross examination that Richardson's testimony regarding the
condition of the roadway on June 11 was predicated upon observations that he had made on June
12, rather than upon a specific examination or observation on June 11. The pertinent testimony
is as follows:
Q. But you're relying on what you saw on June the 12th for an assumption that it
was like that on June the 11th?

432

A. I didn't see it June the 11th because I wasn't paying any attention to it.

THE COURT: Pardon?
THE WITNESS: I didn't pay any attention to it June the 11th. I didn't see
anything.
BYMS. TAYLOR:
Q. But you're relying on what it was like on June the 11th based on your memory
of June the 12th; is that correct?

A. Well, I went back and looked at it- I mean, I looked at it for sure on June the
12th, close (sic) (Tr. 115).
Although both Shackelford and Ellis, who traveled with the inspector, described the
roadway as being at least damp and in many places real muddy, they both noted dust when the
mantrip was stopped to retrieve a piece of equipment. Moreover, neither Ellis nor Shackelford
rebutted the specific testimony of the inspector regarding the existence of dust in the air for a
distance of approximately 10 to 15 crosscuts commencing at a point approximately
IS to 20 C!osscuts outby from the face and continuing outby from that point.
I note that respiratory dust sampling ofminers who traveled in the mantrip and were
supposedly exposed to dust, failed to indicate that the quantity of respirable dust was not in
compliance with the appropriate standard. According to the inspector, it took about 10 minutes
for the mantrip containing the miners who wore dust pumps, to travel through the area of dust.
Hence, their exposure to the dust was not for any significant period of time. Accordingly, I find
the dust pumps they wore did not accurately sample the amount of dust exposure in the dusty
area.

A pump located in_an adjacent belt entry similarly did not indicate respirable dust
accumulations not in compliance with the appropriate standard. Such evidence, by itself, is
insufficient to negate the testimony of the inspector. This entry and the roadway entry at issue
were in the same split of air, and there were no physical barriers betw~n these two entries, thus
allowing for air to travel between these two entries. However, it is significant to note, as
indicated by Ellis in his cross examination, that, due to the placement of a regulator to the left of
the roadway entry (looking inby), the path of the air travel from the roadway to the belt entry
adjacent on the right is not the path of least resistance. Moreover, the area the inspector cited
was located approximately 15 to 20 crosscuts and one entry removed from the pump. I thus find
that the evidence of negative dust sampling results is not sufficient to negate the inspector's
testimony.

43 3

For all the above reasons, J find that it has been established that there was dust in the air
as observed by the inspector. According to the inspector, and not contradicted ·by Respondent's
witnesses, dust is placed in the air by the action of the mantrip's tires grinding particles of dust
material that had accUlllulated on the floor. Since there was dust in the air, I conclude that the
roadway floor, in part, was not dainpened sufficiently. I thus find that the ventilation plan was
not complied with, and that Respondent did violate Section 75.370(a) sum& as alleged.
2. Si~ficant aDd Substantial
According to Rigney, he saw drawrock in the roof on June 11. He opined that small
particles constantly fall from drawrock which he described as consisting of shale. He also
indicated that previous testing had indicated excess silica in the roof. According to Rigney,
exposure to silica can lead to silicosis. None of these assertions were impeached or contradicted
by Respondent, and hence they are accepted.
A violation is properly designated as "significant and substantial" if, based on the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature. Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ). In Mathies Coal Co., 6 FMSHRC 1,
3-4 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory standard is significant
and substantial under National Gypsum the Secretary must prove: (1) the
underlying violation of a mandatory safety standard, (2) a discrete safety hazard that is, a measure of danger to safety - - contributed to by the violation, (3) a
reasonable likelihood that the injury in question will be of a reasonably serious
nature.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g
9 FMSHRC ·20 15, 2021 (December 1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the
likelihood of injury be evaluated in terms of continued normal mining operations. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); See also Halfway, Inc., 8 FMSHRC 8;12
(January 1986) and Southern Ohio Coal Co., 13 FMSHRC 912,916-917 (June 1991).
Applying the criteria test set forth above, I find that, in the context of Rigney's
uncontradicted testimony, it has been established that the violation was significant and
substantial, considering the continuance of normal mining operations, which would have led to
an increase in exposure time to the violative dust.

434

3. Penalty

Since the violation could have led to silicosis, J conclude that the gravity was of a
relatively high level. There is no evidence as to how long the violative conditions of insufficient
dampness had existed. In this connection, Rigney opined that it could not have gotten that way
in a "short period of time'' (Tr. 44). Respondent did not impeach ~r contradict this testimony, J
~us find that ~espondent's negligence was moderate. The violation was timely abated. I find
that a penalty of$595.00, is appropriate.
II. Docket No. KENT 98-9
A. Ciwion No. 4581439

Rigney testified that as he was traveling to the 003 section, he came to a point
approximately 10 breaks from the face that, extending 10 to 12 breaks, was extemely dry. Also,
he observed dusty conditions. He issued a citation alleging a violation of section 75.370(a)(1)
SUD·
Richardson, who traveled with Rigney to the 003 section, indicated that he did not notice
any dust in the roadway. He described the condition of the outby roadway as being "just damp."
Richardson testified that traveling outby from the section, he did not notice any dust on the
roadway and the inspector did not say anything about a citation. In summary, he stated that the
roadways were damp, rock dusted, and clean.
Herbert Kimberlin, Jr., the day shift production foreman, was with Rigney going to the
003 section. He said that the latter did not say anything regarding dust on the roadways. He
described the roadway as wet to damp, clean and rock dusted. He specifically said that he did
not see any dust on the roadway.
Essentially, the evidence presented regarding the conditions on the 003 section is the
same as that presented regarding the 002 section. Hence, I find that, for the reasons stated above,
I(B)(1)(2) ~that Respondent did violate section 75.370(a), ~and that the violation was
significant and substantial. In the same fashion, for the reasons set forth above, l(B)(3) SUUJ, I
find that the violation was of a relatively high level of gravity, and Respondent's negligence was
of a moderate level. I fmd that a penalty of $595 is appropriate.

4 35

OBDER

It is ORDERED that Citation No. 4074103 be DISMISSED. It is further ORDERED
that, within 30 days of this decision, Respondent shall pay a civil penalty of S1,190.

~

eisberger
Administrative Law Judge
Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, 1N 37215-2862 (Certified Mail)
Frenchette C. Potter, Esq., Arch Mineral Corporation, CityPlace One, Suite 300, St. Louis, MO
63141 (Certified Mail)
/mea

436

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 1 4 1998
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 97-46
A.C. No. 11-02440-03776

v.
Marissa Mine
PEABODY COAL COMPANY,
Respondent
DECISION

Appearances: Gay F. Chase, Esq .• Office of the Solicitor, U. S. Deparunent of Labor,
C~cago, Illinois, for the Secretary;
Caroline A. Henrich, Esq., Peabody Coal Company, Charleston, West Virginia,
for Respondent.
Judge Weisberger

Before:

This civil penalty proceeding, commenced by the Secretary of Labor (Petitioner) by the
filing of a Petition for Assessment of a Penalty, presents, as the only issue for resolution, whether
an MSHA inspector abused ·his discretion when he issued an order, pursuant to Section 104b of
the Federal Mine Safety and Health Act of 1977 ("the Act") to Peabody Coal Company
(Respondent) based on his determination that a previously issued citation alleging a violation of
30 C.F.R. Section 75.400 had not been abated, and an extension in abatement time was not
warranted.' Subsequent to notic~, the case was heard in St. Louis, Missouri, on October 28-29,
1997. On February 27. 1998, the parties each filed proposed findings of fact and a brief. On
March 24, 1998, reply briefs were filed by the parties.

At the hearing, the parties advised that they had reached a settlement regarding the
remaining citation in this case, No. 4515855. A motion to approve the settlement was filed on
February 27, 1998, along with Petitioner's brief.
1/

437

Find iDes of Fact and Discgssjon

I. Petitioner's Evidence

Respondent operates the Marissa mine, an underground coal mine. On November 25,
1996, Ronald Zara, an MSHA inspector, inspected a No. 26 Simmons Rand Scoop that was
located inby the 005 working section in the 3 West Section of the mine. At approximately
6:00 p.m., he observed that there were various permissibility violations on the scoop, and it was
leaking oil in several places. He issued citations for these conditions, and these citations are not
at issue herein. Upon Closer examination of the scoop, Zara found pooled hydraulic oil, as well
as oil saturated coal dust and gob up to 1 inch deep on the valve bank compartment floor. He
observed hydraulic oil running off the scoop and pooling on the cab floor, as well as
accumulations of oil-soaked coal on the cab floor. In the pump compartment he observed
numerous oil leaks causing an accumulation of oil. He said that the material that he observed on
the floor was primarily saturated gob with some coal, and coal dust and oil "puddled up"
(Tr. 37). He said that he measured the accumulations with a 3-inch probe and it was found to be
up to 2 inches deep. According to Zara, he reached into all these three areas, felt the material
that had accumulated, and concluded it consisted of oil saturated coal, and coal dust. Zara issued
Citation No. 4575486 alleging a significant and substantial violation of 30 C.F.R. § 75.400.
Respondent does not contest these findings.
According to Zara, ~pon issuance of the permissibility, leaking, and accumulation
citations, he met with B.J. Williams, the face boss. It was agreed that the permissibility and
leaking violations would be abated by midnight, and the accumulation violation would be abated
by 8:00 a.m., on November 26. Later on that evening, Zara met with Melvin R. Kiehna the mine
manager, and informed him that the abatement for the accumulations bad been set for 8:00 a.m.,
and asked him to so inform the next shift manager. According to Kiehna, he told Zara that the
oil leaks and the permissibility violations would be immediately worked on to be abated, and that
he would make every effort to clean the accumulations by 8:00 a.m. There is no evidence that
either Kiehn8., Williams, or any other of Respondent' s agents sought an abatement time beyond
8:00 a.m., or indicated that the 8:00 a.m. deadline was not reasonable or feasible.
On the morning of November 26, Zara returned to the mine and went underground. Zara
was accompanied by William Mulholland, the Union safety committee man, but was not
accompanied by anyone representing the Respondent. At approximately 8:30a.m., he observed
that the subject scoop had been moved approximately 75 feet outby. No one was working on the
scoop at the time. Two miners, William Gibson and James Van Doren were in the area of the
scoop. When asked whether they were sent to wash the scoop, they informed Zara that they were
told only to put the scoop back in service if he were to abate the violation. They also informed
him that after they arrived on the section at approximately 7:30a.m., no one worked on cleaning
the scoop.

438

lara spent approximately 15 minutes examining the scoop. He noted that the
permissibility violative condition and the leaks had been repaired, and he abated those citations.
According to ~ there was evidence that the scoop had been washed and the oil that had
pooled was no longer present. However, he indicated that, in general, the same accumulations
still existed in the same amounts as observed by him on November 25. Specifically, he testified
that up to 1 inch of the materials remained in the valve bank compartment, that there was up to
1 inch of oil soaked coal around the perimeter of the cab, and there was solid and semi solid
combustible material up to 2 inches deep in the pump compartment. Zara reached into the scoop
at the junction of the cab and pump compartment, and took a large handful of material. He
characterized the material as being clay-like. Zara testified that he formed a ball of the material
and squeezed it. He said that oil exuded out of the material, and ran down his ann. He opined
that the material was combustible based upon his experience, and "the appearance of the
material" (Tr. 55). He said he had felt it, looked at it, and smelled it.
According to Zara, in essence, he decided to verbally issue a section 104(b) order to
Mulholland, as the abatement time period had expired, and the combustible materials that he had
cited on November 25, still existed in the same amounts and in the same areas. In this
connection, he indicated that the same fire hazards contributed to by the violative conditions on
November 25, still remained the next morning. He noted that the presence of moving parts in the
pump compartment in combination with heat generated by the pump, constituted an ignition
source. He opined that since the accumulations contacted the drive shaft motor, electrical
conduits, and hydraulic hoses, all of which generate heat" to some degree," the accumulations
could have ignite4.
According to Zara, he considered granting an extension of the abatement time but
decided not to. This decision was based on the following considerations: no one was working to
abate the violation when he arrived, and no abatement efforts were performed subsequent to
7:30 a.m.2 On November 26, none of Respondent's agents requested an extension, none of
Respondent's agents informed him that there were any problems abating the violation, and none
ofRespondent.' s agents explained to him why the scoop had not been cleaned better.
According to Zara, when he was tagging the scoop after he had orally issued the 104(b)
order to Mulholland, Jeffrey Gurley, the safety supervisor, approached him and said,"... you
don't have to do this. We will go ahead and finish cleaning this machine" (Tr. 116). Zara
testified that he asked Gurley why they had not done the job correctly to begin with, and Gurley
said that he did not know.

2/

On cross examination, lara indicated. that when he issued the 104(b) order he did not

know what action Respondent took after he had written the original citation on the evening of
November 25. Only after he issued the 104(b) order, on the afternoon of November 26, he was
informed that a miner had worked approximately 4 hours after midnight November 26 cleaning
the scoop, and that this worker had to obtain a washer from another section as there were
problems with the washer on the subject section.

439

II. Res.ponrlent's Evidence
At approximately 9:00 p.m., on November 25, Melvin R. Kichna, the mine manager of
the 4 p.m. to 2 a.m. shift informed Dennis Gladson, the third shift mine manager, that work was
in progress abating the permissibility and oil leak violations, but that the scoop needed to be
washed to abate the accumulation violation. Gladson said he selected David Bottrell to clean the
scoop as he's "very very good at what he docs" and "will spend all day on whatever he' s doing
until it's done" (Tr. 356). Gladson then informed James Park, the repair foreman, of the work
that ~d to be done. Park assigned Bobby Hicks, a repairman, to work on abating the oil leaks
and Permissibility violations as a priority. Hicks testified that when he observed the scoop at
approximately 10:35 p.m., on November 25, it contained dirt, shale, slate, fine clay, ~'probably
even some coal" (Tr. 298), and oil leaks. Hicks finished abating the oil leaks and permissibility
violations at approximately midnight. He then attempted to tum on the high pressure washer for
Bottrell, but the breaker did not stay on. Hicks then informed Park of the problem, and told him
that they needed another washer. Park, who was then in another unit, checked out the washer
located there, and directed that it be hauled back to where the scoop was located. The washer
arrived at about 1:00 a.m. at which point Bottrell commenced cleaning the scoop.
Bottrell described the scoop as being dirty, and greasy. He said the scoop bad oil and
coal on it. Bottrell used a detergent (swoop) to loosen the oil. According to Bottrell, he sprayed
the cab with a pressure washer until it was clean. He indicated that after he fmished, the area
looked clean. He was asked whether he saw any oil or grease on the floor and he said "not that I
remember" (Tr. 387). He indicated that there was no oil on the hoses and conduits after he
finished washing them. He stated that after he cleaned the valve bank compartment no oil or coal
remained. According to Bottrell, he cleaned the scoop continuously for 3 to 4 hours. He
indicated that when he finished cleaning the scoop it looked clean, and no additional cleaning
was necessary.
Gladson testified that at approximately 5:00a.m., on November 26, he checked the scoop
and found that an area adjacent to the valve bank compartment was not yet washed, and he told
Bottrell to wash h. Gladson indicated that he could see the floor of the pump compartment, and
did not see any oil or combustible material. He indicated that he did not see oil or grease in the
cab. He said he was able to see the floor of the valve compartment, and he did not see any oil
coal or combustible substances. According to Gladson, he saw the distinctive color of the hoses,
and there were no accumulations around them. He told Bottrell he had done a good job.
Hicks saw the scoop again at approximately S:30 a.m., and indicated that it '~looked a lot
better" (Tr. 307). According to Hicks, the coal, slate, and oil that he had previously observed
was no longer present. He indicated that he did not see 2 inches of oil and coal, and the other
conditions set forth in lara's section 104(b) order. However, on cross-examination, it was
elicited that when he looked in the scoop after it bad been washed, he could not see the floor of
the valve bank and pump compartments, as it was covered with water. He indicated that he did
not believe that he looked in the cab after Bottrell completed cleaning the scoop.

440

James P~k, a repair foreman, testified that when he was in the area of the scoop
sometime around 5:30a.m., on November 26, Bottrell told him that he had finished washing the
scoop and he (Park) checked it out. He indicated that the hoses on the valve bank compartment ·
floor were visible and clean, and he did not see oil or grease on the floor. He told Bottrell that he
had done a good job. He indicated that he did not see the pump motor compartment.
Gurley, who was present on November 26, testified that he saw Zara pick up some
material from the area at the junction between the cab and the pump compartment, and it looked
like mud. According to Gurley, he saw muddy water run down the ann of Zara, and he did not
see any oil or coal. Gurley indicated that after the section 104(b) order was issued, he examined.
the scoop before·it was cleaned by Dale Harstick. He was asked if he saw 2 inches of oil soaked
coal and hydraulic oil on the compartment floor. He answered as follows: "If there had been
two inches there, those half inch hoses would have been covered by an inch and a half' (Tr. 249).
He also indicated that he did not see coal or oil soaked gob in the pump and valve bank
compartments.
Before Respondent cleaned the scoop to abate the section 104(b) order, Gurley took
photographs of the affected areas. He. testified that the pictures depict, inter alia, hoses that were
not covered with accumulations (Ex. R2-9).
Melvin R. Kiehna, the mine manager of the 4:00p.m. to 2:00a.m. shift, observed the
accumulations on November 25, but not on November 26. He compared the conditions he had
observed to photographs of the cab (Ex. R2), taken on November 26, prior to the cleaning of the
scoop. According to Kiehna, there were accumulations in the cab on November 25, which do not
appear in the photograph.
Hicks compared a picture of the pump compartment taken on November 26, to what he
had observed on November 25, before the scoop was washed. He stated that in contrast to the
picture, on November 25, there was a lot of oil at the bottom of the compartment and the !loses
could not be seen: He also stated that on November 25, when he observed the area across from
the operator's cab before it.was washed, he "couldn't hardly see any hoses" (Tr. 313), and there
was "a lot" of coal and "quite a bit of oil," especially on the floor (Tr. 313). In contrast he said
that a photograph taken on November 26, shows hoses that appear to had been cleaned. Hicks
examined a photograph, taken on November 26, of the valve bank compartment that he had
o~served on November 25. He "indicated that the loose material consisting of coal, fine clay,
slate, and oil wruch he had noted then was not present in the picture. Similarly, he testified that
on November 25, he observed oil, and accumulations on hoses and components under the valve
bank, which were not apparent in the pictures taken on November 26.

441

Dale Harstick, a roofbolter, cleaned the scoop after the section 104(b) order was issued.
He indicated that he spent most of his time cleaning the cab and the pump compartments with a
high pressure washer. He described the materials located there as a mixture of fire clay, wet rock
dust, and a black substance that could have been coal or slate. He said that he worked on the
scoop for about 3 to 4 hours.
III. Dissussjon
A. APlllic&ble LaW

Section 104(b) of the Act provides as pertinent, as follows:

If, upon any follow-up inspection of a coal or other mine, an authorized
representative of the Secretary finds (1) that a violation described in a citation .. .
has not been totally abated within the period of time as originally fixed therein or
as subsequently extended, and (2) that the period of time for the abatement should
not be further extended, he shaH determine the extent of the area affected by the
violation and shall promptly issue an order requiring .. . all persons .. . to be
withdrawn from .. . such area....
In Mid-Continent Resources, Inc., 1I FMSHRC 505, 509 (1989) the Commission held, in
interpreting section 104(b}, ~. as folJows:
When the validity of a section 104(b) order is challenged by an operator, it
is the Secretary, as the proponent of the order, who bears the burden of proving
that the violation described in the underlyina citation has not been abated within
the time period originally fixed or as subsequently extended. We bold, therefore,
that the Secretary establishes a prima facie case that a section 104(b) order is valid
by proviJ:lg by a preponderance of the evidence that the violation described in the
underlying section..J04(a) citation existed at the time the section 104(b)
withdrawal order was issued. The operator may rebut the prima facie case by
showing, for example, that the violative condition described in the section 104(a)
citation had been abated within the time period ftxed in the citation, but bad
recurred.
B. Analysis
1. Abatement oftbe yiolatjve.condjtions described in tbe citation issued on
Noyember25
I observed Bottrell's demeanor and found his testimony credible that be spent
approximately 4 hours after 1:00 a.m., November 25, cleaning the accumulations in the scoop
with a high pressure washer and a detergent solution. Since Petitioner did not proffer any direct

442

testimony to contradict Bottrell, nor did Petitioner impeach or rebut this testimony, I accept it.
Further, Respondent's witnesses who observed the scoop after it was cleaned testified that there
were no accumulations of oil saturated material in the areas cited by Zara on November 25.
However, it is significant to note that Kiehna, Hicks, and Park did not inspect all ofthe areas that
were cited by Zara. On the other hand, on November 26, Zara spent approximately 15 minutes
inspecting the areas he previously cited. Further, his opinion that the material that remained was
still saturated with oil, was based upon the fact that he reached into the material squeezed it and
noted that oil ran out of it. He further explained that his conclusion that it was oil, was based on
his experience and the fact that he smelled it. Mulholland essentially corroborated Zara's
observations. Also, he took a sample of the material and rubbed it between his fingers. He
stated that"... it was obvious to see that there was 'oil running out of it" (Tr. 165). In contrast,
Gurley, who opined that the liquid that ran out of the material when squeezed by Zara was water
and not oil, neither touched nor smelled the material. I thus do not accord much wieght to his
testimony, and give more weight to Zara' s testimony based on the extent of his observations and
examinations of the conditions at issue.
On November 26, Gurley took photographs of the conditions in the scoop at the areas
cited by Zara on November 25. Gurley, Kiehna, Hicks, and Bottrell all interpreted the
photographs and indicated that the accumulations observed on November 25, could not be seen
in these pictures. However, I do not assign much probative weight to the pictures due to their
lack of depth, and the presence of shadows which obfuscates the clarity of the photographed
items. Further, it is significant that whereas Zara was convincing in his testimony regarding
accumulations that were still present on the fiQQI in the three compartments cited, the pictures do
not depict the floor. For all these reasons, I find that although Respondent clearly acted in good
faith, not all the accumulations cited by Zara on November 25, were eliminated by 9:00 a.m., on
November 26. I conclude that the violative conditions described in the underlined citations were
not completely abated within the time originally set for abatement i.e., 8:00a.m. See, Martinka
Coal Co., 15 FMSHRC 2452 (1993).
2. Extension ofthe abatement.
At issue is whether Zara acted unreasonably on November 26, in not extending the time
for abatement. Fore the reasons that follow, I find that Zara's failure to extend the time for
abatement was reasonable.
The original time set for abatement i.e., 8:00a.m., November 26, was set by Zara upon
talking with Kiehna and Gurley. Neither of them, nor any other representative, or Respondent
requested that the abatement should be set for a later time. When Zara arrived at the section at
approximately 9:00 a.m., on November 26, and observed accumulations that had not been abated,
no one was engaged in washing the scoop. Also, Zara had been told by Gibson and VanDoren
that no one washed the scoop subsequent to their arrival on the section at approximately
7:30a.m., on November 26. Further, based upon this infonnation, when Zara determined to
issue a section 104(b) order, none of Respondent's agents had requested an extension, informed

443

him that there were any problems with abating the violative conditions, or explained to him why
the scoop had not been cleaned better. Moreover, according to Zara, when he was tagging out
the scoop he asked Gurley "why they had not done the job correctly" (Tr. 116), and Gurley said
he did not know.
The failure to timely completely clean the accumulations posed a hazard to miners. In
essence, according to Zara, the continued existence of combustible materials on November 26,
presented a fire hazard. .I accept this opinion having found above, lll(B)(1), SJD, that oil
saturated material still remained.
For all the above reasons, I conclude that the time set for abatement was reasonable, and
that Zara acted reasonably in determining not to extend the time to abate the violation previously
cited on November 25.
IV. Citation No. 4575855

Petitioner filed a motion to approve a settlement agreement regarding this citation. A
reduction in penalty from $431 to $259 is proposed. I have considered the representations and
documentation submitted, and I conclude that the proffered settlement is appropriate under the
criteria set forth in Section 11 O(i) of the Act. I therefore approve the settlement and grant the
motion.
ORDER

It is ORDERED that, within 30 days of this Decision, Respondent shall pay a total civil
penalty of$1 ,716.
Avram Weisberger
Administrative Law Judge
Distribution:
Gay F. Chase, Esq., Office of the Solicitor, U. S. Department of Labor, 230 South Dearborn
Street, 8th Floor, Chicago, 1L 60604 (Certified Mail)
Caroline A. Henrich, Esq., Peabody Coal Company, P. 0 . Box 1233, Charleston, WV 25324
(Certified Mail)
dcp

444

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 1 5 1996
INLAND STEEL MINING COMPANY,
Contestant

v.

CONTEST PROCEEDINGS
Docket No. LAKE 97-86-RM
Order No. 7809214; 4/28/97

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

Docket No. LAKE 97-87-RM
Citation No. 7809215; 4/28/97
Minorca Mine
Mine ID No. 21-02449

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 97-103-M
A. C. No. 21-02449-05609

INLAND STEEL MINING COMPANY,
Respondent

Minorca Mine

SUMMARY DECISION
Before: Judge Hodgdon
These cases are before me on Notices of Contest and a Petition for Civil Penalty pursuant
to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The
Contestant/Respondent, Inland Steel Mining Company, has filed a Motion for Smnmary Decision
under Commission Rule 67, 29 C.F .R. § 2700.67. The Secretary opposes the motion. For the
reasons set forth below, the motion is granted.
Citation No. 4557691, in Docket No. LAKE 97-103-M, alleges a violation of sections
56.5001(a) and 56.5005 of the regulations, 30 C.P.R.§§ 56.5001(a)and 56.5005, because:

445

A welder in the weld shop was exposed to 147.06 f.J,g/m3 of
copper welding fumes from 0700-0800 on August 21, 1996.£11 This
exceeds the STEL (exposure limit) of 100 f.J,g/m~ times the
sampling factor (1.08) for welding fwne sampling and elemental
analysis. Analytical results were received and the citation issued
on September 23, 1996. The employee was air arcing in a shovel
bucket and visible fumes were produced during this process. The
engineering controls in use were a 12" exhaust tube to a 23" wallmounted exhaust fan, a 20" box fan placed near the work area, and
both overhead doors in the shop were open. The welder was
wearing a respirator, and a respirator program meeting the
requirements of ANSI Z88.2-1969 was in place. The abatement
date is for the implementation of further engineering and
administrative controls.
Order No. 7809214, in Docket No. LAKE 97-86-RM, alleges that the company had "not made a
good faith effort to establish measures for control of exposure to metal fumes produced during
air-arcing operations" and, therefore, had not abated Citation No. 4557691. Citation No.
7809215, in Docket No. LAKE 97-87-RM, alleges that the Inland violat~d section 56.5002, 30
C.F .R. § 56.5002, by failing to take "health samples ... of air arcing operations to monitor the
welder's exposure to harmful metal fumes since the citation was issued on August 21, 1996."2
Section 56.500l(a) provides, in pertinent part, that,
the exposure to airborne contaminants shall not exceed, on the
basis of a time weighted average, the threshold limit values
adopted by the American Conference of Governmental Industrial
Hygienists, as set forth and explained in the 1973 edition of the
Conference's publication, entitled "TLV's Threshold Limit Values
· for Chemical Substances in Workroom Air Adopted by ACGIH for
1973," pages I through 54, which are hereby incorporated by
reference and made a part hereof.... Excursions above the listed
thresholds shall not be of a greater magnitude than is characterized
as permissible by the Conference.
Threshold limit values (TLVs) "refer to airborne concentrations of substances and represent

1 The symbol "f.lg" means "microgram," "[o]ne millionth of a gram.'' U.S. Department of

Interior, Bureau of Mines, A Dictionary ofMining, Mineral, and Related Terms 703 (1968).
Thus, the allegation is that the welder was exposed to 147.06 microgams of copper welding
fumes per cubic meter of air.
2 The Respondent has filed a Motion to Withdraw its notice of contest on this citation.

446

conditions under which it is believed that nearly all workers may be repeatedly exposed day after
day without adv.erse effect." TLV's Threshold Limit Values for Chemical Substances in
Workroom Air Adopted byACG/Hfor 1973 1 (1973) (1973 7LV's). TLV's are the "timeweighted [average exposure] concentrations for a 7 or 8-hour workday and 40-hour workweek."
/d. Time-weighted averages (TWA) "permit excursions above the limit provided they are
compensated by equivalent excursions below the limit during the workday." ld at 1-2.
It is apparent that Citation No. 4557691 refers to exceeding neither the TLV for copper
fumes nor the permissible excursion level above the TLV. Instead it alleges that the short term
exposure limit (STL) was exceeded. STL's are not mentioned in the regulation, however, an
STL for copper fumes is found at page S-29 of the Mine Safety and Health Administration's
(MSHA) Metal and Nonmetal Health Inspection Procedures Handbook (1990). The STL is
accompanied by a footnote that states: "Short-term limit from Pennsylvania Rules." /d.

It is Inland 's position that the Pennsylvania Rules (Pennsylvania STLs) were not adopted
by the American Conference of Governmental Industrial Hygienists (ACGIH) for 1973, that they,
therefore, are not incorporated by reference into section 56.5001(a), and that, accordingly, the
citation does not set out a violation of the regulations. While the Pennsylvania Rules are
mentioned in the 1973 TLV 's, I conclude that they were not adopted by the ACGIH and are not
part of section 56.5001 (a) by incorporation or otherwise.

A. Regulatory History
The limiting of exposure to airborne contaminants was first proposed by the Secretary of
the Interior in 1969. In a January 1969 Notice of Proposed Rulemaking, the Secretary put
forward section 55.5-1, 30 C.F.R. § 55.5-1, which stated: "Where airborne concentrations of
dust, gas, mist and fumes are encountered which exceed threshold limit values adopted by the
American Conference of Governmental Hygienists, and persons are exposed to such
concentrations, control measures shall be adopted to maintain concentrations below such
threshold limit values." 34 Fed. Reg. 656, 658 (January 16, 1969). There is no discussion in the
notice of incorporation by reference or exactly what threshold limit values are to be covered by
the regulation. Furthemiore, when the proposed rules became final, section 55.5-1 had been
deleted and the rules stated that that section was "reserved." 34 Fed. Reg. 12503, 12505 (July
31, 1969)
In 1970, a new section 55.5-1 was proposed. It provided that:
The exposure to airborne contaminants of a person working
in a mine shall not exceed, on the basis of a time-weighted average,
the threshold limit values adopted by the American Conference of
· Governmental Industrial Hygienists, as set forth and explained in
the most recent edition of the Conference's publication entitled
"Threshold Limit Values of Airborne Contaminants." Excursions
above the listed threshold limit values shall not be of a greater

447

magni~de than is characterized as permissible by the Conference.
This paragraph (a) does not apply to airborne contaminants given a
"C" designation by the Conference--for example, nitrogen dioxide.

35 Fed. Reg. 10299, 10300 (June 24, 1970). The text is similar to the present regulation, except
that it specifically states that some of the values are not included within it. There was no
discussion in the notice of what specifically was included in the regulation. This became a
mandatory standard, as proposed, in December 1970. 35 Fed. Reg. 18587, 18588 (December 8,
1970). Again, there was no discussion of the regulation.

In July 1974, a regulation identical to the current one became final. 39 Fed. Reg. 24136
(July 1, 1974). There was no discussion of the new regulation either when it was promulgated or
when it was adopted. The rules were recodified in 1985 and section 55.5-1 became 56.5001(a).
50 Fed. Reg. 4048, 4062 (January 29, 1985). No changes were made in the rule and there was no
discussion of the rule itself.

B. Discussion
As can be seen, STLs have never been mentioned in the rule. Nor have they been
included in any discussion concerning the proposal or adoption of the rule. On its face, the rule
is clearly limited to threshold limit values adopted by the ACGIH in 1973 and excursions above
the listed thresholds characterized as permissible by the ACGIH. Therefore, unless the STLs set
out in the Pennsylvania STLs have been adopted by the ACGIH, they are not included in the rule,
and exceeding them does not violate the rule. I find the evidence that they were not adopted to
be overwhelming.
STLs are mentioned in two places in the 1973 TLVs. The first appears in the Preface at
pages 6-7 and is set out in full below:
Short-Term Limits (STLs). Because many industrial
exposures are not continuous, 8-hour daily exposures, but are
short-term, or intermittent, to which the TLV s do not necessarily
apply, STLs for 5, 15, or 30 minutes for 142 substances have been
put into the regulations of the Pennsylvania Department of Health
(Chapter 4, Art. 432, Revised Jan. 25, 1968). These STLs
represent the maximal average atmospheric concentration of a
contaminant to which a worker may be exposed for the stipulated
time. The concentration represents an upper limit of exposure and
assumes that there is sufficient recovery between exposures before
another is initiated. The daily average exposure including that
provided by the STL shall be such that the TLV shall not be
exceeded.

448

Similar STLs for a more restricted number of substances
have been recommended by the American National Standards
Institute. This standard-setting body refers to these short-term
limits as "peaks."
The TLV s are set out following the Preface, under the heading "Adopted Values," which
begins at page 10 and continues through page 35. There is no mention ofSTLs in this section.
A ''Notice of Intended Changes (for 1973)" begi~ on page 36 and states: "These
substances, with their corresponding values, comprise those for which either a limit has been
proposed for the first time, or for which a change in the 'Adopted' listing has been proposed."
Interestingly, "copper fume" is included in this section proposing that value be changed to 0.2
mg/M3.3
Finally, Appendix D "Permissible Excursions for Time-Weighted Average {TWA)
Limits" begins on page 51 . The definitive language of the appendix, on page 51, is set out
below:
The Excursion TLV Factor in the Table automatically
defines the magnitude of the permissible excursion above the limit
for those substances not given a "C" designation, i.e., the TWA
limits. Examples in the Table show that nitrobenzene, the TLV for
which is I ppm, should never be allowed to exceed 3 ppm.
Similarly, carbon tetra-chloride, TLV 10 ppm, should never be
allowed to exceed 20 ppm. By contrast, those substances with a
"C" designation are not subject to the excursion factor and must be
kept at or below the TLV ceiling.
These limiting excursions are to be considered to provide a
"rule-of-thumb" guidance for listed substances generally, and may
not provide tlie most appropriate excursion for a particular
substance ....
Then, the appendix goes on to observe, on page 52: "For appropriate excursions for 142
substances consult Pa. Rules & Regs., Chap. 4, Art. 432, and 'Acceptable Concentrations.'
ANSI."
The Table, on page 52, sets out the excursion factors, which are multipliers based on
various TLV ranges, to be used to determine permissible excursions for a substance.

3

These values are in "milligrams," not "micrograms."

449

There is no mention in the Preface that the STLs for 142 substances in the Pennsylvania
Rules are being adopted by the ACGIH. They are not listed in the "Adopted Values" section.
While they are mentioned in Appendix D, it is apparent that this is for information purposes
since the flrst sentence in the appendix clearly states that "[t]he Excursion TLV Factor in the
Table automatically defines the magnitude of the permissible excursion above the limit ...."
(emphasis added). Nowhere does it state that the Pennsylvania STLs define the magnitude ofthe
permissible excursion.
The Secretary argues that because the regulation refers to "permissible excursions" and
because Appendix D, which deals with "permissible excursions," mentions the Pennsylvania
STLs, then the Pennsylvania STLs must be included in the regulation. This argument is
unpersuasive. The statement in the regulation is that "[e]xcursions above the listed thresholds
shall not be of a greater magnitude than is characterized as permissible by the Conference." The
flrst sentence in Appendix Dis explicit that the Table defines the magnitude of permissible
excursions. The Table is the only method the Conference uses for characterizing permissible
excursions. The language in the regulation clearly conforms to the flrst sentence in Appendix D.
Since neither the ACGIH nor the regulation mention STLs, there is no basis for concluding that
they were incorporated into the regulation.
The Secretary also argues that the ACGIH uses the terms "permissible" and "appropriate"
interchangeably, and that, therefore, when Appendix D refers to "appropriate excursions for 142
substances" it is incorporating those STLs into the appendix. This argument is also flawed. In
the first place, "permissible" and "appropriate" are not synonymous. "Permissible" means "that
may be permitted." Webster's Third New International Dictionary 1683 (1986). "Appropriate"
means "specially suitable." Id at 106. In the second place, it ignores the fact that the Table is
the only method set out in the Appendix for determining a permissible excursion.4
The fact that nowhere in the 1973 TLVS does the ACGIH state that it is adopting the
Pennsylvania STLs, even though in all other instances it explicitly describes what it is adopting,
that STLs are only mentioned in the Preface and in Appendix D, and in the appendix only after it
unequivocally declares how permissible excursions are defined, to illustrate that what is
permissible may not necessarily be appropriate, is persuasive that the STLs were not adopted by
the ACGIH and, therefore, not part of section 56.5001 (a). However, if that were not enough, the
ACGIH has conclusively conflrmed that it did not adopt the Pennsylvania STLs in the 1973
TLVs.

4

The Secretary's argument that if the terms permissible and appropriate are ambiguous, I
must defer to her interpretation of them is misplaced. The terms are not ambiguous. Even if they
were, it is not the Secretary's regulation that is being interpreted, but an ACGIH document.
Therefore, the Secretary has no greater expertise in interpreting the document than anyone else
and there is no basis on which to defer to her.

450

The report ofthe 1973 ACGIH meeting states that ''the subcommittee on Short-Term
Limits was expanded .... They were charged with the responsibility to report progress on
reviewing the present 142 short-tenn limits with their documentation, State of Pennsylvania, for
incorporation in the TLV Booklet." Transactions ofthe 3J" Annual Meeting ofthe American
Conference ofGovernmental Industrial Hygienists 35 (1973). ACGIH's Documentation ofthe
Threshold Limit Values and Biological Exposure Indices 336 (6th Ed. 1991) discloses that the
conference has never adopted an STL for copper fumes and that it did not adopt one for copper
dusts and mists until 1976 (which it rescinded in 1986). The document also states that: "STELs
are not recommended.for the fume or the dusts and salts of copper until additional toxicological
data and industrial hygiene experience become available to provide a better base for quantifying
on a toxicological basis what the STEL should be." Id. Finally, in the Annals of the American
Conference of Governmental Industrial Hygienists, Vol. 9, Threshold Limit Values--Discussion
and Thirty-five Year Index with Recommendations 421 (1~84) it states: "The first STEL list was
published in 1976."

C. Conclusion
Accordingly, I conclude that the ACGIH did not adopt the Pennsylvania STLs in 1973
and that, therefore, they could not have been incorporated in section 56.5001(a) of the
regulations. Consequently, Citation No. 4557691 must be vacated for failure to state a violation
of the Secretary's regulations. Since Citation No. 4557691 fails to state an offense, Order No.
7809214, which was issued for failing to abate Citation No. 4557691, must also be vacated.5
ORDER
The Respondent's Motion for Summary Decision in Docket Nos. LAKE 97-86-RM and
LAKE 97-103-M is GRANTED, Citation No. 4557691 and Order No. 7809214 in Dockets No.
LAKE 97-86-RM and LAKE 97-103-M are VACATED and the cases DISMISSED. The
Respondent's Motion to Withdraw its notice of contest in Docket No. LAKE 97-87-RM is
GRANTED and that case is DISMISSED.

~~~

Administrative Law Judge

s Order No. 7809214 also mentions that when readings were taken to determine if the
company had reduced copper fumes to permissible levels it was determined that both copper and
iron fumes were above exposure levels. While iron fumes were not cited in the original citation,
to the extent that they are relevant to whether the company had abated the original citation,
MSHA's reliance on the Pennsylvania STLs for iron suffers from the same infirmity as copper.

451

Distribution:
L. Joseph Ferrara,. Esq., Jackson & Kelly, 2401 Pennsylvania·Avenue, N.W., Suite 400,
Wasbin&ton, D.C. 20037 (Certified Mail)
Christine M. Kassak, Esq., Office of the Solicitor, U.S. Dept. of Labor, 8th Floor, 230 South
Dearborn Street, Chicago, IL 60604 ((Certified Mail)
Mark R. Malecki, Acting Counsel, Trial Litigation, Office of the Solicitor, U.S. Dept. of Labor,
Mine Safety and Health Division, 4015 Wilson Boulevard, Suite 414, Arlington, VA 22203
(Certified Mail)
\mea

452

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

APR 1 6 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of SHERRY UDE and
BRETTUDE,
Complainants

DISCRIMINATION PROCEEDINGS
Docket Nos. LAKE 98-37-D
LAKE 98-38-D
VINC CD 97-01

v.

Razor Back Mine
Mine ID 11-03002

ILLINI ENERGY RESOURCES, LLC.,
Respondent

ORDER OF CONSOLIDATION

AND
DECISION APPROVING SETILEMENT
Before: Judge Bulluck
These cases concern discrimination proceedings filed p~uant to section 105(c) of the
Federal Mine Safety and Health Act of 1977 (''the Act"), 30 U.S.C. § 815(c)(2). Pursuant to
unopposed motion of the Secretary, these cases are hereby consolidated for administrative
processing.
The Secretary, on behalf of Sherry Ude and Brett Ude, alleges that the Udes were
unlawfully denied work opportunities and terminated on or about May 9, 1997, as a result of
Sherry Ude having engaged in protected activity. The Secretary seeks reinstatment of the Udes
to their former positions with backpay (including overtime) and interest, employment benefits
and seniority, and expungement of any reference to the protected activity from their personnel
records. Additionally, the Secretary seeks orders directing Respondent to cease and desist
discrimination of the Udes, posting of a notice of violation, and payment of a $9,000.00 civil
money penalty.
The parties have filed a Joint Motion to Approve Settlement and Dismiss Action. I have
reviewed the settlement agreement. Under its terms, the Respondent is required to take the
following actions:
1.

pay Sherry Ude backwages in the amount of $17,000.00;

2.

pay Brett Ude backwages in the amount of$3,00.00; and

3.

pay a civil money penalty in the amount of$3,000.00 for the discrimination
violation:

453

The settlement is appropriate and is in the public interest. WHEREFORE, the motion
for approval of settlement is GRANTED, and it is ORDERED that the Respondent comply with
the terms set forth above and pay a penalty of $23,000.00 in seven installments, within and not to
exceed 6 months, as specified in the settlement agreement. Upon Respondent~s full compliance
with all terms of the settlement, these proceedings are DIS:MISSED.

Distribution:
Ruben R. Chapa, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St.,
8th Floor, Chicago, IL 60604
David S. Spewak., Esq., Wittner, Poger, Rosenblum, Kessler, & Maylack, P.C., 7700 Bonhomme
Avenue, Suite 400, St. Louis, MO 631 05
\mh

454

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH , VIRGINIA 22041

APR 2 4 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CnnLPENALTYPROCEEDINGS
Docket No. CENT 95-29-M
A. C. No. 03-01640-05511

V.

Docket No. CENT 95-30-M
A. C. No. 03-01640-05512

REB ENTERPRISES, INC.,
Respondent

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-239-M
A. C. No. 03-01640-05517-A
REB Enterprises

HAROLD MILLER, employed by
REB ENTERPRISES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-240-M
A. C. No. 03-01640-05518-A
REB Enterprises

RICHARD E. BERRY, employed by
REB ENTERPRISES, INC., .
Respondent
DECISION ON REMAND

On March 30, 1998, the Commission issued a.decision in these civil penalty proceedings
vacating my initial fmdings that violations by REB Enterprises, Inc. ("REB") of30 C.F.R.
§§ 57.14131(a) and 56.14130(g) were not the result of REB's unwarrantable failure, and
remanding the matters to me for further analysis. In addition, the Commission reversed my
finding that REB did not violate 30 C.F.R. § 56.14130(aX3), and remanded the matter for a
determination as to whether the violation was as a result of REB's unwarrantable failure, and an

455

assessment of an appropriate civil penalty. Lastly, the Commis~ion vacated my dismissal of an
order, amended to cite a violation of section 56.14130(g), ~and remanded the matter for a
determination as to whether the violation was a result of REB's unwarrantable failure, and an
assessment of an appropriate civil penalty.
1. Citation No. 4327776.
The Commission remanded this matter to evaluate the Secretary's hearsay evidence
regarding the issue of REB's unwarrantable failure, and to determine if it was reliable and
entitled to any probative weight.
In essence, the only evidence submitted by the Secretary to support its position that the
violation cited was an unwarrantable failure consisted of hearsay testimony proffered by
Inspector Enochs. This testimony consisted of second-hand information he had received from
another inspector, who did not testify at the hearing, regarding an industrial assistance session at
which time hand-outs were passed out, and the importance of the use of seat belts was discussed
with REB's supervisors. Enochs also testified that he ha~ a conversation with Ron Alexander,
the operator of the cited vehicle, in which he asked Alexander why he was not wearing his seat
belt, and the latter told him that "nobody made a big deal about it" (Tr. 34).
In weighing this testimony as it relates to the issue of the degree of REB's negligence, I
note that the record does not contain any corroborating evidence relating to facts set forth in the
declarants' out of court statements. Also, there is no evidence that REB exercised the right of
subpoena to cross-examine these declarants. (See, Mid-Continent Resources, Inc. 6 FMSHRC
1132, at 1136-1137.) I thus do not assign Enochs' hearsay testimony any probative value. I
place more weight upon the testimony of Richard Berry, REB's president, whose demeanor I
careful1y observed. I found his testimony credible that a sign is posted outside the building
where employees check in advising them of the need to wear seat belts, and that such a notice
was also posted in REB ' s office. This testimony was not contradicted or impeached. Within
this context I find that the seat belt violation was not the result of REB's aggravated conduct, and
hence can not be characterized .to have been an unwarrantable failure.
2. Order No. 4327622
The Commission vacated my initial finding that REB's violation of section 56.14130(g)
~ was not as a result of its unwarrantable failure, and remanded the matter to evaluate the
reliability and probative value of the Secretary's hearsay testimony. The evidence tending to
establish REB's unwarrantable failure consists of the inspector's testimony that the operator of
the cited vehicle told him that sometimes he wears a seat belt, and sometimes he does not. In
contemporaneous notes taken by Enochs he indicated that Bill Jacobs, the operator of the cited
vehicle, stated that no one makes a big deal about wearing a seat belt. Jacobs did not testify.
Also, Enochs testified that he was told by another inspector, who did not testify, that in an
industrial assistance session he had warned REB's supervisory personnel, including REB's
foreman Raymond King, of the importance of seat belt use.

456

Dale St. Laurent, who previously had served as an MSHA special investigator, testified
that Jacobs has told him that REB did not have a seat belt policy, and that no one ever made him
wear a seat belt. He also testified that he was told by a REB serviceman, a Mr. Yates, that in the
year prior to the inspection, he never saw either of the two bulldozer operators wearing a seat
belt, and nobody made him wear seat belts. Additionally, St. Laurent testified that Yates had
told him that there was no company policy regarding seat belts, that he did not recall anyone at
REB telling anyone else to wear a seat belt, and that Jacobs told him (Yates) that neither Harold
Miller, the lead-man at .the site, nor Berry ever told him (Jacobs) to wear a seat belt.
On the other hand, I observed the demeanor of Miller, and found his testimony credible
that, on the date cited, he had only been at the site for approximately 10 minutes prior to the
inspector's issuance of the order at issue, and had not observed that Jacobs was not wearing a
seat belt. I note that when Enochs observed Jacobs not wearing a seat belt, he was 10 yards
closer to Jacobs than Miller was. There is no evidence that Miller was in any position to have
observed that Jacobs was not wearing a seat belt. There is not any~ evidence that King, or
Miller had notice or knowledge that Jacobs was not wearing a seat belt. There is no evidence
that King, prior to Enochs' issuance of the order at issue, was in any position to have observed
that Jacobs was not wearing a seat belt. Also, as discussed above, the credible evidence
establishes that REB had posted information in its office regarding the requirement for its
employees to wear seat belts while on the job. Although Miller had indicated that prior to the
date of the issuance of the order at bar he had not enforced the seat belt rules, there is no
evidence that Miller, on the date the order was issued, had any official duties or responsibilities
towards enforcing compliance with the mandatory seat belt standard. Thus, considering all of the
Secretary's evidence, including hearsay evidence, I find it insufficient, within the above context,
to have established that the violation herein was as a result of REB 's unwarrantable failure.

3. Qrder No. 4327625.
The Commission vacated the initial determination that the violation of
section 56.14130(g), Sl.Uli3, was not an unwarrantable failure, and remanded to evaluate the
Secretary's hearsay evidence to determine whether it was reliable, and entitled to any probative
weight. The Secretary's evidence consisted of Enochs' testimony that the violation was obvious,
that it was the fourth citation or order he had issued that day involving the failure to wear seat
belts, and that REB had not taken any corrective action. Also, St. Laurent testified to a
conversation, concerning the use of seat belts by employees, that he had with an individual who
f?perated equipment for REB. The individual told him that "the normal posture was . . . that if a
guy wanted to wear them fine, and if he didn't want to wear them then that was okay too"
(Tr. 246). This individual was not called by the Secretary to testify. St. Laurent also testified
that Miller had told him that he usually did not.wear a seat belt when he operated equipment, and
that he usually let employees do what they wanted to do regrading the wearing of a seat belt.
Essentially, for the reasons set forth above, (1 , 2, Sl.Uli3) I assign less weight to the totality of the
Secretary's evidence as it contains out of court statements, and there is no direct evidence
corroborating the facts set forth in the declarants' out of court statements, nor is there evidence

457

that REB-exercised its right to subpoena and cross-examine these individuals. I assign more
weight to the direct testimony of REB's witness as set forth above ( 1, 2 ~). I find that the
Secretary's evidence was insufficient to establish that the violation cited was the result of REB's
unwarrantable failure.
4. Order No. 432763 J•
The Commission vacated the initial fmding that it was not established that the violation
of30 C.F.R. § 56.141 07(a) resulted from REB's unwarrantable failure, and remanded for further
analysis of the issue of unwarrantable failure.
The inspector's conclusion that the violation was as a result of REB's unwarrantable
failure was based, inter a1ia, upon information provided to him by another inspector, a
Mr. Hermstein, who did not testify, who told him that at a meeting King was given a handbook
on guarding. In analyzing this hearsay testimony of the inspector, I note that there is no
corroborating evidence relating to the activities of Hermstein. In the absence of either Hermstein
or King testifying, and being subject to cross-examination, and in the absence of evidence
corroborating the facts set forth in the declarants' out of court statements, I fmd Enochs' hearsay
testimony insufficient to positively establish that King had been given a handbook on guarding.
Enochs further testified that he concluded that the violation was as a result of REB's
unwarrantable failure because King knew he was creating a violative condition when he removed
the guard from the pulley, because of the seriousness of the danger of exposure to a wing type
pulley, and because there was a lot of traffic in the area. I find that the probative value of this
testimony is diluted by the testimony of Berry, whose demeanor I observed and whom I found to
be a credible witness, that, in essence, the only time a miner would have a need to go to the area
of the tail pulley in issue was to perform maintenance on the belt, and in that event the belt
would not be in operation. For these reasons, I find that the evidence adduced by the Secretary is
insufficient to establish that the violation was as a result of REB's unwarrantable failure.

S. Order No. 4327626.
The Commission vacated the initial decision dismissing the order at issue, and finding
that the evidence established that REB did violate 30 C.F.R. § 56.14130(a)(3), and remanding the
matter for determination whether the violation was unwarrantable, and an assessment of an
appropriate civil penalty.
In explaining his reasons for concluding REB 's negligence was high, the inspector
testified that there were not any mitigating circwnstances. He indicated that the cited vehicle
" ... could be seen easily that it was obvious that there was no seat belt on the machine" (sic.)
(Tr. 258). Also, he indicated that he was not sure that a preshift inspection of the equipment had
been performed before it was put into use.

458

REB did not. present any testimonial or documentary evidence to contradict the testimony
of the inspector. Although the Jack of a seat belt was obvious, there is no evidence when, and for
what purpose, the seat belt had been removed. Also, there is no direct evidence as to how
frequently the cited vehicle is used, and there is no evidence as to the last time it was used before
it was cited. I thus fmd that REB's negligence was not of such a high level as to have constituted
aggravated conduct. I thus conclude that the violation was not unwarrantable.
According to the inspector, the terrain in the plant was mostly level, but that if the
operator of the vehicle would be bumped, he could fall off his seat, and suffer a nonfatal injury. I
thus find that the level of gravity of the violation was more than moderate. However, for the
reasons set forth above, I find that it has not been established that REB's negligence was more
than moderate. I fmd that a penalty of $700 is appropriate for this violation.
6. Order No. 4327628
The Commission, in its decision, vacated the dismissal of Order No. 4327628, and
remanded the matter for determination as to whether the violation was the result of REB's
unwarrantable failure, and an assessment of an appropriate civil penalty.
The inspection opined that REB's negligence was high because he had yet to find
anybody ·on the property who was wearing a seat belt. He indicated, in essence, that he had
nothing to add to his testimony regarding negligence other than what he testified to regarding the
other seat belt violations. Hence, my conclusion regarding negligence and unwarrantable failure
is the same as set forth above (1, 2, ~) . For the same reasons, I fmd that it has not been
established that REB ' s negligence was more than moderate. I further fmd that the driver of the
cited vehicle was not wearing a seat belt, and could have been seriously injured should the
vehicle have hit another object. I thus find that the violation constituted more than a moderate
level of gravity. I find that a penalty of $700 is appropriate for this violation.
ORDER
It is ORDERED that Citation No. 4327776, Order Nos. 4327622, 4327625, 4327631 ,
4327626, and 4327628 were not the result of REB's unwarrantable failure. It is further
ORDERED that within 30 days of this decision, REB shall pay a civil penalty of$1,400 for the
violations cited in Order Nos. 4327626 and 4327628.

459

Distribution:
James B. Crawford, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson
Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail)
Daniel J. Haupt, Esq., U. S. Department of Labor, Mine Safety and Health Administration,
1100 Commerce Street, R4C50, Dallas, TX 75242-04299 (Certified Mail)
Jack F. Ostrander, Esq., Office of the Solicitor, U. S. Department of Labor, 525 South Griffin
Street, Suite 501, Dallas, TX 75202 (Certified Mail)
James E. Crouch, Esq. Cypert, Crouch, Clark & Harwell, P. 0. Box 1400, Springdale, AR 72765
(Certified Mail)
dcp

460

FEDERAL MINE SAFETY AND HEALTH REVIEW COMJ\fiSSION
1730 K STREET, N.W., 6fB FLOOR
WASHINGTON D.C. 20006-3868
April 29, 1998

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

CnnLPENALTYPROCEEDING
Docket No. WEST 98-23-M
A. C. No. 24-00500-05512-A

v.
BRIAN FORBES, EMPLOYED BY
HAMILTON ROCK PRODUCTS,
Respondent

Hamilton Rock Production Pit & Plant

ORDER DENYING MOTION TO REOPEN

This case is before me pursuant to an order of remand by the Commission dated February 6,
1998.
The petitioner, Brian D. Forbes, filed a motion with the Commission to reopen a penalty
assessment of the Mine Safety and Health Administration (hereafter referred to as "MSHA") that
had become final by operation oflaw. The Commission held that on the basis of the record before
it, a determination could not be made on the merits of the motion. Accordingly, the case was
remanded for a determination whether petitioner met the requirements for relief.
On September 22, 1993, a citation was issued to petitioner's employer, Maricorp, Inc., for

a viola6on of30 C.F.R. § 57.14130 (g). According to petitioner's affidavit, dated October 22,
1997, the citation was served on petitioner who was the operator's manager. He forwarded the
citation to the person designated by the operator to represent it in such matters.
On March 28,.1994, MSHA sent petitioner a letter by certified mail advising him that be
was subject to a proposed civil penalty assessment under section 110(c) of the Act, 30 U.S.C.A.
§ 820(c).1 This letter was addressed to petitioner at Maricorp, but he had left the employ of that
company. The letter was returned with the notation on the envelope that he was no longer there.
Attached to an affidavit executed on December 9, 1997, by Barbara Renowden, an MSHA
supervisory investigator, is a memorandum dated May 16, 1994 from Ms. Renowden to the
Administrator for Metal and Non Metal Safety and Health. The memorandum recites that after
the March 28 letter was returned, petitioner was contacted on his mobile phone and told that
MSHA was trying to reach him to advise that he could have a conference on the violation.
According to the memorandum, petitioner was hostile and uncooperative. On April 1, 1998,
Ms. Renowden executed a second affidavit stating that at the time she wrote the memo of
1

Attachments A and B to affidavit dated December 11, 1997 of C. Bryan Don, Chief of
Penalty Compliance Office, Office of Assessments, MSHA.

461

May 16, 1994, she knew the facts therein to be true and accurate, but that she does not have a
current recollection of who in her office spoke to petitioner. In an affidavit dated AprillO, 1998,
petitioner states that prior to receiving a notice dated August 8, 1997, he bad absolutely no
knowledge that a citation bad been issued.
The postmaster of Marion, Montana, in an affidavit dated March 26, 1998, states that
petitioner is a customer of the post office and since 1982 has continuously rented a post office box
there. According to the postmaster, the Postal Service places Form 3849 in the postal box to
notify the box customer of the delivery of certified mail. She further recites that up to three
notices may be provided before the Postal Service returns the certified letter to the sender as
"unclaimed" and the date of each notice is written on the envelope. Finally, the postmaster
advises that the Form 3849 stays in the box until the customer picks it up and that even if the mail
is returned to the sender, the form still stays in the box.
On April 26, 1994, MSHA sent petitioner a letter regarding a proposed 11 0(c) penalty
assessment by certified mail addressed to his post office box in Marion, Montana.2 According to
the postmaster's affidavit, the first notice was placed in his box on April 28, 1994, the second
notice was placed there on May 4, 1994, and the letter was returned to MSHA on May 12, 1994.
On July 12, 1994, MSHA sent petitioner the notice of civil penalty assessment by certified
mail addressed to his post office box.3 According to the postmaster's affidavit, the first notification was placed in his box on July 25, 1994, the second was placed there on August 5, 1994, and
the letter was returned on August 10, 1994.
Thereafter, on June 20, 1995, MSHA sent petitioner a letter by regular mail addressed to
his post office box advising him that legal action would commence against him, unless he made
immediate arrangements to satisfy the unpaid civil penalty.4 This letter was not returned to
MSHA.
On September 27, 1995, MSHA sent petitioner a letter, by certified mail addressed to his
post office box, seeking payment of the debt, giving the amount due including accrued interest,
and stating the continued nonpayment of the debt would result in referral to the Internal Revenue
Service.5 According to the postmaster's affidavit, the first notice was placed in his box on
October 5, 1995, the second was placed there on October 11, 1995, and the letter was returned on
·
October 24, 1995.

2

Attachments C and D to Don affidavit.

3

Attachments E and F to Don affidavit..

4

Attachment G to Don affidavit.

5

Attachments H and·I to Don affidavit.

462

Another certified mail letter dated October 25, 1996, was sent to petitioner at his post
office box again seeking payment of the debt, giving the amount due including accrued interest,
and stating that continued nonpayment would result in referral to:the Internal Revenue Service.6
According to the postinaster's affidavit, the first notice was placed in his box on November 4,
1996, the second notice was placed there on November 8, 1996, and the letter was returned on
November 19, 1996.

On August 8, 1997, the Department of the Treasury sent petitioner a letter by regular mail
advising him that MSHA had referred the debt for collection and that aggressive legal action
would be commenced against him unless he made payment.' On September 4, 1997, petitioner
telephoned the Civil Penalty ~oinpliance Division, Office of Assessments, in MSHA and
requested information regcu::dillg ihe civil penalty assessment and delinquent debt. On the next
day relevant documents were sent to him.8 Petitioner's attorney then wrote MSHA and the
Department of the Treasury on September"10, 1997, seeking to contest the proposed penalty
assessment.9 However, he was informed by MSHA on September 25, 1997, that the proposed
assessment was final and petitioner could file a motion for relief with this Commission. 10
Pursuant to my order dated February 24, 1998, petitioner's wife executed an affidavit
dated April10, 1998, wherein she avers as follows: she and Mr. Forbes have been married since
1974; they have maintained a permanent residence in Marion, Montana since the 1970s; when her
husband is out of town it is her practice to pick up their mail at the post office; if Mr. Forbes
receives letters addressed just to him, it is her practice to forward such mail to him at his current
work site; she never opens mail addressed in his name only; she has never signed for any certified
or registered mail because she is never certain how long it might take before such mail is
delivered to him at his work site; if certified letters were returned to MSHA by the Post Office
marked unclaimed, it is because they were in her husband's name only; she has never signed for
or picked up any certified or registered letters addressed to her husband; she has no recollection of
ever receiving or picking up any notice from the Department of Labor except for the letter dated
August 8, 1997, which she forwarded to him at his work site.
As already noted, petitioner also executed an affidavit on April 10, 1998, wherein he
alleges that before the August 8, 1997, he had no notice that a citation had been issued and that he
has never wilfully or intentiomilly tried to avoid service.
In the brief filed on petitioner's behalf, his counsel represents the following: petitioner's
wife and son occupied their horne during the son's attendance at Flathead High School; petitioner
owned property, land and structures- in Flathead County, Montana; petitioner has vehicles
registered in Montana, and petitioner has paid the Montana personal property tax. In addition,

6

Attachments J and K to Don affidavit.

7

Attachment L to Don affidavit.

8

Attachment M to Don affidavit.

9

Attachment N to Don affidavit.

10

Attachment 0 to Don affidavit.

463

attached to the brief is documentation showing that petitioner worked outside Montana for these
periods: May 21, 1994, to June 4, 1994; June 13, 1994, to November 6, 1994; . ..
August 18, 1995, to March 22, 1996; April 8, 1996, to December 4, 1997; and March 2, 1998 to
the present. These dates do not cover the period from April26, 1994, to May 12, 1994, when
delivery of the first notice addressed to his post office box, was attempted. Also, the record, as
presently constituted, does not indicate whether petitioner returned home during these periods of
employment.
Applicable Law

Section 11 0(c) of the Act,~ provides as follows:
Whenever a corporate operator violates a mandatory health or safety standard or
knowingly violates or fails or refuses to comply with any order issued under this
Act or any order incorporated in a final decision issued under this Act, except an
order incorporated in a decision issued under subsection (a) or section 105(c), any
director, officer, or agent of such corporation who knowingly authorized, ordered,
or carried out such violation, failure, or refusal shall be subject to the same civil
penalties, fines, and imprisomnent that may be imposed upon a person under
subsections (a) and (d).
It is under section 11 0(c) that MSHA proposed a penalty assessment against petitioner.
Section 105(a) of the Act, 30 U.S.C.A. § 815(a), provides in pertinent part as follows:
If, after an inspection or investigation, the Secretary issues a citation or order under
section 104, 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 under section 11 O(a) for the violation cited and
that the operator has 30 days within which to notify the Secretary that be wishes to
contest the citation or proposed assessment of penalty.*** If, within 30 days
from the rec~ipt of the notification issued by the Secretary, the operator fails to
notify the Secretary that he intends to contest the citation or the proposed assessment of penalty,*** the citation and the proposed assessment of penalty shall be
deemed a final order of the Commission and not subject to review by any court or
agency. Refusal by the operator or his agent to accept certified mail containing a
citation and proposed asses_sment of penalty under this subsection shall constitute
receipt thereof within the meaning ofthis subsection.
See also 30 C.F.R. § 100.7; 29 C.F.R. § § 2700. 25,2700.26 & 2700.27.
It is pursuant to section 105(a) and the cited regulations that MSHA argues the proposed
penalty assessment against petitioner has become final and is not subject to review.
Rule 60(b) of the Federal Rules of Civil Procedure provides as follows:
On motion and upon such terms as are just, the court may relieve a party * • *
from a fmal judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which

464

subparagraph(6), ~.which states that a judgment may be reopened at any time for any other
reason justifying relief. The Supreme Court has held that subparagraphs (1) and (6) are mutually
exclusive and that a party who fails to take timely action due to "excusable neglect" may not seek
relief after more than a year later by resorting to subparagraph(6). Pioneer, at 393. To justify
relief under subparagraph (6) a party must show •extraordinary circumstances", suggesting that
the party is faultless in the delay. llilil, See also Liijeben~ v. Health Services AcQuisition Cotp.,
486 U.S. 847, 863-864 (1988); Ackeunann y. United States, 340 U.S. 193, 197-200 (1950);
Klapwott v. United States, 335 U.S. 601, 613-614 (1949).
Bearing these principles in ni.ind, we tum to petitioner's request. In Mullaney. Central
Hanover B. & I. Co., 339 U.S. 306 (1950), the Supreme Court set forth the standards under
which adequacy ofnotice.is judged, stating in pertinent part as follows:
An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections • * * But if with due regard for the
practicalities and peculiarities of the case these conditions are reasonably met, the
constitutional requirements are satisfied.

bi at 314-315.
The Court further stated that the means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish notice and that the reasonableness
and hence constitutional validity of any chosen method may be defended on the ground that it is
in itself reasonably likely to infonn those affected. ~at 315.
Mullane bas been the touchstone for the development of a substantial body oflaw which holds
that the appropriate inquiry is whether or not the method used to effectuate service is reasonably
calculated under all the circumstances to apprise the interested party of the pendency of the action.
Certified mail has been held to satisfy the due process due a litigant or prospective litigant. FuentesA.weta v. I.N.S., 101 F.3d 867,872 (2nd Cir. 1996); U.S. y. Clark 84 F.3d 378, 381 (lOth Cir. 1996);
Sarit v. U.S. Drug Enforcement Admin., 987 F.2d 10, 14-15 (la Cir. 1993). Moreover, the courts
have repeatedly approved the Use of regular first-class mail as a constitutionally adequate means of
service. In Re BlindeL Robinson & Co.. Inc., 124 F.3d 1238, 1243 (1Oth Cir. 1997); Wei~er v. City
of New York, 852 F.2d 646, 650 (2nd 1988). Even more importantly, the courts recognize that due
process does not require that the interested party actually receive notice. In Re Blinder. Robinson &
Co .. Inc.. mat 1243; Fuentes-Ar~eta v. I.N,S., ~at 872; U.S. v. Clark, mat 381; Katzson
Bros.. Inc. v. U,S.E.P.A., 839 F.2d 1396, 1400 (lOth Cir. 1988); Weigner v. City ofNew York, m
at 650; StatesideMachinezy Co.. Ltd v. Alperin. 591 F.2d234, 241 (1979). An individual who moves
and does not provide his new address, cannot challenge service by certified or regular mail on the
basis there was no actual notice. Fuentes-Ar!Weta y. I.N.S., mat 872; U.S. y. Perez-Yaldera, 899
F. Supp. 181, 184 (S.D.N.Y. 1995); U.S. v. Estrada-Irocbez, 66 F.3d 733, 735 (51h Cir. 1995). An
exception to the foregoing principles is made only when the notifying party sends the notice to an
address it has reason to know will not accomplish notice. Small v. U.S., 136 F.3d 1334, 1336-1337
(D.C. Cir. 1998); U.S. v. Rod~ers, 108 F.3d 1247, 1253 (lOth Cir. 1997); Torres y. $36.256.80U.S.
Currency,25 F.3d 1154, 1161 (2nd Cir. 1994); Aero-Medical. Inc. v. U.S., 23 F.3d 328, 330-331 (lOth
Cir. 1994).

4 65

by due diligence could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud ••• 'misrepresentation,.~r other misconduct of an
adverse party; (4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a reasonable time,
and for reasons (1), (2), and (3) not more than one year after the judgment, order,
or proceeding was entered or taken.
It is under rule 60(b) that the Commission has held that it has jurisdiction in appropriate
cases to reopen penalty assessments that have become final pursuant to section 105(a), iYlml·
Brian Forbes. Employed by Hamilton Rock Products, 20 FMSHRC 99, 100 (February 1998);
Rocky Hol1ow Coal Co., 16 FMSHRC 1931, 1932 (September 1994); Jim Walter Resources. Inc,,
15 FMSHRC 782,786-89 (May 1993).
Discussion and Analysis

For purposes of deciding petitioner's motion on the present record, the representations and
allegations made by him and his wife will be accepted as true. 11 The gravamen of petitioner's
case is that he did not receive actual notice of the penalty assessment made against him.
Petitioner's motion to reopen was not filed within one year of the date the proposed
penalty assessment became final pursuant to section 105(a), ~· Accordingly, the motion
cannot be considered under subparagraph (1) of Rule 60(b), ~ which provides for relief in
circ~stances of excusable neglect when the request is made within one year. Pioneer Investment
Seryices Co. v. Brunswick Associates LTD. Partnership, 507 U.S. 380,393 (1993). Subparagraphs (2) through (5) do not apply. Therefore, the motion can only be considered under

This does not mean, of course, that the petitioner's statements and ~ose of his wife
would not present serious questions of credibility, were they not being accepted as true for
purposes of the motion: For instance, petitioner's wife avers that she forwarded regular mail to
petitioner, but that she did not sign for certified mail addressed to him because she was not
certain how long it would take before such mail was delivered to him at his work site. Any
worry about delivery time would apply to regular mail as well as certified mail and she
admittedly forwarded regular mail to him. Also, concern about delivery time would not be
lessened by refusing the mail. On the contrary, refusal insured that the mail would not be
received. And no reason is given why petitioner's wife did not open any mail addressed to him,
regardless of where the mail came from and despite the fact they have been married over 20
years. In assessing the validity of the allegation that she did not remember receiving or picking
up any notice from MSHA, account would hav~ to be taken of the postmaster's statement that
notices of certified mail are left in the post office box even when a letter is returned. Eight such
notices were left in petitioner's box, but his wife states she does not remember any of them. In
short, the statements made on the petitioner's behalf would raise serious questions of credibility
if a detennination of their truthfulness were necessary to a resolution of this matter. In addition,
as already noted, petitioner has not accounted for his whereabouts when attempts were made to
deliver the first notice addressed to him at his post office box.
11

466

It is clear that under these principles, petitioner's claim fails. Over a 2~ year period
MSHA sent four notices by certified mail to petitioner at the post office box which he had
maintained for many years and which was located in the town of his permanent residence. These ·
mailings satisfy due process under the Mullane decision, because they were reasonably calculated
under all the circumstances to tell the petitioner of the penalty assessment against him. Indeed, it
can fairly be said that the repeated certified mailings addressed to the petitioner at the post office
box he continually maintained in the town where his permanent home was located, constituted the
means best calculated to reach him. The claim for relief is based upon the absence of actual
·
notice. However, the case law set forth supra, demonstrates that actual notice is not necessary
where, as here, the method of notification was reasonably ~alculated to advise the individual.
Finally, petitioner lias only himself to blame for his lack of actual notice. Even accepting the
questionable statements and arguments made on his behalf, it is clear that the petitioner is at fault
for failing to furnish a forwarding address or otherwise provide for his receipt of all mail sent to
him. Indeed, any rational evaluation of the practices and procedures adopted by petitioner and his
wife leads to the inescapable conclusion that their modus operandi would defeat virtually any
attempt to achieve actual notice by certified mail.
In addition, petitioner is not entitled to relief under Rule 60(b)(6). As set forth supra,
relief is available under extraordinary circumstances suggesting that the movant is without fault.
Pioneer, at 393. There are no such extraordinary circumstances here. On the contrary, petitioner's own arrangements for his mail are responsible for the defeat of all attempts to notify him
by certified mail.
I recognize that the Commission has held that default is a harsh remedy. Kentucky Stone,
19 FMSHR.C 1621, 1622 (October 1997); Peabody Coal Company, 19 FMSHR.C 1613, 1614
(October 1997); Jim Walter Resources, 19 FMSHR.C 991,992 (June 1997); See Coal Preparation
Services. Inc., 17 FMSHR.C 1529, 1530 (September 1995). Following the Commission's
teachings, I have reopened many cases. M & Y Services. Inc., Docket No. PENN 97-93-M,
Unpublished Order dated April 8, 1997; Eastern Associated Coal Cor.p., Docket No. WEVA 9781, Unpu,blished Order dated March 24, 1997; Del Rio. Inc., Docket No. KENT 97-138, Unpublished Order dated March 12, 1997; R B Coal Company, 17 FMSHR.C 2153 (November 1995).
But the Commission has never decided that defaults are never to be imposed and has itself denied
reopening in appropriate cases. Lakeview Rock Products. Inc., 19 FMSHRC 26 (January 1997);
Thomas Hale. Employed by Damon Cm:p., 17 FMSHRC 1815 (November 1995); Jim Walter
Resources. Inc., 15 FMSHRC at 789-791. Relief is to be accorded in those instances where it is
available under substantive legal principles and the Federal Rules. Where such relief is not
warranted, the Secretary's right to finality must prevail. If ever a case justified a finding of
finality, the instant one does. As already set forth, MSHA attempted many times to notify
petitioner and petitioner himself was to blame for the fact that these attempts were unsuccessful.
In light of the foregoing, it is ORDERED that the motion to reopen is DENIED.

---

Paul Merlin
Chief Administrative Law Judge

467

Distribution: (Certified Mail)
Ned Fitch, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Suite
400, Arlington, VA 22203

John M. Miller, Esq., Eide & Miller, 425 G Street, Suite 930, Anchorage, AK 99501
/gl

468

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

2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
..

APR 3 0 1998

JIM WALTER RESOURCES, INC.,
Contestant

v.

CONTEST PROCEEDING
Docket No. SE 98-14-R
Citation No. 4482278; 9/23/97

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

No. 7 Mine
Mine ID No. 01-01401

DECISION
Appearances: R. Stanley Morrow, Esq., Birmingham, Alabama, and Guy Hensley, Esq., Jim
Walter Resources, Inc., Brookwood, Alabama, for Contestant;
William Lawson, Esq., Office of the Solicitor, Department of Labor, Birmingham,
Alabama, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Notice of Contest filed by Jim Walter Resources, Inc., against
the Secretary of Labor, pursuant to section 105 of the Federal Mine Safety and Health Act of
1977,30 U.S.C. § 815. The Company contests the issuance to it of Citation No. 4482278. A
hearing on the contest was held on March 5, 1998, in Birmingham, Alabama. For the reasons set
forth below, I affinn the citation.

Factual Settin&
A "Code-A-Phone" message was received in the Mine Safety and Health Administration
(MSHA) district office on September 9, 1997, alleging that Jim Walter was putting coal and float
coal dust accumulations in the No. 2 entry of the No. llongwall panel in Mine No. 7, where the

469

dinner bole was located.' Coal Mine Inspector Gregory McDade went to the mine to investigate
the com~laint on September 10, 1997. He went to the longwall section and found an
accumulation of coal behind a check curtain in the No.2 entry. It appeared to him that the coal
· had been pushed from the entry crosscut between the No. 2 and No.3 entries into the No.2
entry.
He was advised by miners working in the area that the accumulation had been in the
No. 2 entry for about 24 hours before a ventilation curtain (curtain 2) had been placed in front of
it. Prior to the coal accumulation being placed in the entry, it had served as a parking place for
the "tool car" and as the dinner hole. Behind the curtain and the accumulation, McDade
observed another curtain (curtain I}, which until curtain 2 was put up had served to direct air to
the longwall face.
·
Based on what he had observed and been told, the inspector believed that the coal
accumulation was a violation of the regulations. However, to be sure, be returned to the district
office to discuss the situation with his supervisor. They concluded that it was a violation and on
September 23, I997, Inspector McDade issued Citation No. 4482278 to the company. It alleges
a violation of section 75.400, 30 C.P.R. § 75.400, because:
Coal dust, including float coal dust and loose coal and other
combustible materials such as wood and paper was allowed to
accumulate in the No. 2 Entry of the active No. I longwall panel.
These accumulations were pushed, hauled and deposited in the No.
2 Entry by scoop against a ventilation drop. The accumulation of
coal dust, float coal dust, loose coal and other combustible
materials was 43' feet in length, 19 feet in width and 6 feet in
height, 58 feet inby survey station 1I1317.
(Govt. Ex. 1.)

Findings of Fact and Conclusions of Law
Section 75.400 provides, in pertinent part, that: "Coal dust, including float coal dust
deposited on rock-dusted surfaces, loose coal, and other combustible materials shall be cleaned
up and not be permitted to accumulate in active workings . . . ." The parties agree that the facts

"Code-A-Phone is a toll-free 'hot line' to the MSHA headquarters in Arlington,
Virginia, that is used to request an inspection of a mine, to report safety or health problems, or to
report possible violations of the mandatory safety and health standards. MSHA's policy is not to
reveal the source of a Code-A-Phone request or report." Stillion v. Quarto Mining Co. ,
12 FMSHRC 932, 933 n.2 (May 1990). A transcript of the call is faxed to the MSHA district
office nearest the mine for investigation.
1

4 70

are as set out above. It is the Contestant' s position that there was no violation of the regulation
because the accumulations were behind curtain 2 and were, therefore, not in the "active
workings" of the mine.2
When the "tool car" and the dinner hole were in the No. 2 entry, the area was clearly
within the active workings of the mine. Miners regularly went to the "tool car" to retrieve and
replace tools, miners regularly ate in the area and the area up to curtain 1 had to be examined at
least weekly. When the accumulations were pushed into the entry, but before curtain 2 was
installed, the accumulations were within the active workings of the mine. The dinner hole was
still in the entry, right in front of the accumulations, and curtain 1 still had to be examined at
least once a week to make sure it was functioning properly.
Inspector McDade concluded, based on what he was told, that the accumulations were in
the entry for at least 24 hours before curtain 2 was put up. His conclusion was corroborated by
the testimony of Danny Joe Nelson, a Jim Walter employee, who stated that he was working the
11:00 p.m. to 7:00a.m . shift on Sunday night-Monday morning when he first noticed the
accumulations in the No. 2 entry. At that time, curtain 2 had not been installed. The next night,
when he came to work, the curtain had been placed in front of the accumulations. Therefore, I
find that the accumulations were in the active workings of the mine for at least 24 hours.
Since the accumulations were in the active workings for at least 24 hours, I conclude that
Jim Walter violated section 75.400. The Secretary wishes to go further, however. She argues
that even after curtain 2 was installed, the accumulations violated section 75.400 because curtain
2 was only put up to hide the accumulations and circumvent the rule.
There is evidence to support the Secretary's theory. Inspector McDade testified:
The first check curtain was in good shape. There would
have been no reason for installing the second check curtain at that
point. When I went through check curtain number two and
e~amined· the area behind it, the coal was there. It was a large pile
of coal pushed back there and other debris and materials.
And traveling on back to check curtain number one, the
check curtain number one was in very good shape too. So, I made
an examination for methane but there was none, and there was
ventilation somewhat moving across the area But I suspect that it
was not a good mining practice because it accesses an area where
methane could accumulate.

"Active workings" are defined in section 75.2, 30 C.F.R. § 75.2, as 4'[a]ny place in a
coal mine where miners are normally required to work or travel."
2

471

Q.
In your 20 some years of inspecting underground coal
mines and your previous years of supervisory and labor work for
U.S. Steel and Drummond, have you ever seen two check curtains
installed in such a manner as depicted in Government's Exhibit 2;
that is, within 43 feet of each other?

A.

No, I haven't.

(Tr. 90-91.) Kenneth W. Ely, a MSHA Ventilation Expert, also testified that be bad never seen
ventilation curtains installed this way and opined that it wa.S a bad mining practice to have
accumulations between two ventilation curtains in an essentially unventilated area.
The company did not present any evidence to rebut MSHA' s inference. Michael A.
Evans, Longwall Coordinator, the only witness presented by Jim Walter, stated that be was not
present when the inspection was made. He further related that if a ventilation curtain is
performing its ventilation function, a new curtain would not normally be installed 43 feet in front
of it and that he did not know who had installed curtain 2. He did not testify as to the reason
curtain 2 had been put up.
In another case concerning Jim Walter, involving a combustible material accumulation
located behind a check curtain, Commissioner Riley stated in a concurring opinion: "We hope
responsible operators would not resort to sweeping their problems behind a curtain separating
'active workings' from inactive areas. While such a move may comply with the letter of
applicable regulations, it falls short of the spirit of the law, which is intended to prohibit the
accumulation of combustible materials that present an avoidable risk to miners." Jim Walter
Resources, Inc., 18 FMSHRC 508, 514 (April 1996). It appears that that is exactly what Jim
Walter did in this case.

It is one thing for accumulations to naturally occur in inactive workings, through roof
falls and rib sloughing, it is quite another for accumulations to be deliberately placed in inactive
workings or to be placed in active workings which are then made inactive by the hanging of a
ventilation curtain. The former is clearly not a violation of section 75.400. I find that the' latter
is.
It is a violation because when the accumulations are placed in inactive workings, placing
them there makes the area a place·where miners are required to work or travel. Or, as in this
case, when accumulations a placed in active workings and then the area is made inactive, the
acctimulations are in active workings while they are being deposited. Thus, the very act of trying
to bide the accumulations is a deliberate violation of section 75.400.
It does not appear that there is any way that combustible accumulations can be
intentionally placed either in inactive workings or in active workings that will be made inactive
without violating the regulation during the placement. While placing accumulations behind

472

curtains or similar barriers may make them harder to detect, once discovered, problems of proof
should be no mo.re difficult than they were in this case. Furthermore, since this is clearly a bad
mining practice, it should be expected that operators interested in the safety of their miners
would not follow such a practice. Finally, because this can only occur as the result of an
intentional act, those who are not concerned with the safety of their miners are opening
themselves to charges of "reckless disregard" for the safety of miners and "unwarrantable
failure'' citations and orders.3
ORDER

Accordingly, I conclude that the accumulation of combustible materials in the No. 2 entry
violated section 75.400. Citation No. 4482278 is AFFIRMED.

~M~
T. ToddHo;;;z. . .-.
Administrative Law Judge
Distribution:
R. Stanley Morrow, Esq., 517 Beacon Parkway West, Post Office Box 26511, Birmingham, AL

35260 (Certified Mail)
Guy Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444
(Certified Mail)
William Lawson, Esq., Offic.e of the Solicitor, U.S. Department ofLabor, 150 Chambers
Building, 100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)

\fb

Since Jim Walter may have been mislead by the Commission's decision in Jim Walter
Resources, Inc., 18 FMSHRC 508 (April 1996), into thinking that such activities were
acceptable, even though the Commission did not specifically address this issue, I am concurring
with the inspector's finding that this violation involved "moderate" negligence.
3

473

474

•U.S . GOVERNMENT P!WmliC om~£:1998-432-922/94403