JULY 1998

COMMISSION DECISIONS
07-02-98 UMWA on behalf of William Burgess et al. v. Secretary
of Labor, etc.
07-08-98 Secretary of Labor on behalf of Ronald Maxey v.
Leeco, Inc.
07-10-98 P & P Inc.ofKentucky
07-14-98 Canterbury CoaJ Company
07-27-98 Cannelton Industries, Inc.
07-28-98 Western Aggregates, Inc.

SE 96-367-D

Pg. 691

KENT 97-257-D
KENT 98-23 1
PENN 97-113-R
WEVA 94-381
WEST 98-308-M

Pg. 707
Pg. 714
Pg. 7 18
Pg. 726
Pg. 745

WEVA 98-10-C
CENT 97-154-M
VA 96-21-M
LAKE 98-4-RM
SE
98-49-M
WEVA 98-27
CENT 98-1 54-RM

Pg. 749
Pg. 756
Pg. 758
Pg. 760
Pg. 768
Pg. 773
Pg. 778

ADM!NISTRATIVE LAW JUDGE DECISIONS
07-06-98 Local 1702, Dist. 3 1, UMWA on behalf of 141 miners v.
Consolidation Coal Company
07-15-98 Blue Circle, l.ncorporated
07-15-98 Eastern Ridge Lime Company, L.P.
07-17-98 Inland Steel Mining Company
07-20-98 Hoover Incorporated
07-27-98 Consolidation Coal Company
07-30-98 Brauntex Materials, Inc.

i

JULY 1998

Review was granted in the following cases during the month of July:
Gary Morgan v. Arch of Illinois, Docket No. LAKE 98-17-D. (Judge Weisberger,
June 10, 1998)
Secretary of Labor, MSHA v. Hubb Corporation, Docket No. KENT 97-302. Juage Weisberger,
June 15, 1998)
BHP Copper Company, Inc. v. Secretary of Labor, MSHA, Docket No. WEST 98-189-RM.
(Judge Manning, June 23, 1998)

No· cases were filed in which review was denied

ii

COMMISSION DECISIONS AND ORDERS

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

July 2, 1998

UNITED MINE WORKERS OF AMERICA
on behalf of
WILLIAM KEITH BURGESS,
GLENN LOGGINS, DAVID McATEER,
B. RAY PATE and OTHERS

v.

Docket Nos. SE 96-367-D
SE 97-18-D

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
MICHAEL J. LAWLESS,
FRANK YOUNG, TOM MEREDITH,
and JUDY McCORMICK
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen and Beatty, Commissioners
DECISION
BY: Riley and Beatty, Commissioners 1
In this discrimination proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S ..C. § 801 et seq. (1994) ("Mine Act"), Administrative Law Judge Jacqueline
Bulluck determined that the Department of Labor's Mine Safety and Health Administration
(''MSHA") and its employees are not subject to suit for alleged vi(Jlations of sections 103(g)(l)
and 105(c)(l) of the Mine Act, 30 U.S.C. §§ 813(g)(l), 815(c)(l).2 19 FMSHRC 294 (Feb.

1

Commissioners Riley and Beatty are the only Commissioners in the majority on all
issues presented.
2

Section 103(g)(l) provides in part:
Whenever a representative of the miners ... has reasonable
grounds to believe that a violation of this [Act] or a
mandatory . . . standard exists, . . . such ... representative shall
have a right to obtain an immediate inspection by giving notice to
the Secretary or his authorized representative of such violation or
danger. Any such notice shall be reduced to writing, signed by the

691

-

1997) (ALJ). The Commission granted the petition for discretionary review filed by the United
Mine Workers of America on behalf of William Keith Burgess, Glenn Loggins, David McAteer,
B. Ray Pate and others ("UMWA"), challenging the judge's decision. For the reasons that
follow, we affirm in part, reverse in part, and remand.
I.
Factual and Procedural Background
This case arose when the UMWA fi led discrimination complaints on behalf of miners
against MSHA and MSHA employees in two separate actions, Docket Nos. SE 96-367-D, and
Docket No. SE 97-18-D. The Secretary of Labor moved to dismiss both complaints. 19
FMSHRC at 294-95. In her consideration of the Secretary's motions to dismiss, the judge
treated as true the following allegations set forth in the complaints. Id. at 295 n.3.
Docket No. SE 96-367-D
On approximately May 24, 1996, David McAteer, chairman of the safety committee of

representative of miners ... , and a copy shall be provided the
operator ... no later than at the time of the inspection . . . . The
name of the person giving such notice and the names of individual
miners referred to therein shall not appear in such copy or
notification. Upon receipt of such notification, a special inspection
shall be made as soon as possible to determine if such violation or
danger exists . . . . If the Secretary determines that a violation or
danger does not exist, he shall notify the ... representative ... in
writing ....
30 U.S.C. § 813(g)(l). Procedures for processing complaints under section 103(g) are set forth
in 30 C.F.R. Part 43. Such procedures provide in part for informal review of negative findings,
such as that an inspection or the issuance of a citation is unnecessary. See 30 C.F.R. §§ 43.6-.8.
Section IOS(c)(l) provides in pertinent part:
No person shall ... interfere with the exercise of the statutory
rights of any miner, [or] representative of miners ... because such
miner, [or] representative of miners ... filed or made a complaint
under or related to this [Act], including a complaint notifying the
operator ... of an alleged danger or safety or health violation in a
coal or other mine ....
30 U.S.C. § 815(c)(l).

692

UMWA Local Union 2245, and committee members William Keith Burgess and Glerm Loggins
faxed a letter to MSHA District 11 Manager Michael J. Lawless stating their concerns regarding
MSHA's alleged failure to adequately inspect Jim Walter Resources ("JWR") #4 Mine on
schedule and MSHA's granting of extensions for various safety violations at the mine. 19
FMSHRC at 295; Compl. I at 2 ~ 3. On approximately May 29, McAteer and Burgess were
called out of the mine to attend an "accident investigation team pre-inspection meeting" at the
mine site. Compl. I at 2 ~ 4. Present at the meeting were "two MSHA supervisors, including
Judy McCormick, seven MSHA inspectors, the mine manager, and a number of his
subordinates." Am. Compl. at 2 ~ 4. McCormick distributed a "sanitized," typed version of the
letter faxed to Lawless, in which all names and references to individual miners had been omitted.
19 FMSHRC at 296. McCormick then proceeded to verbally chastise McAteer and Burgess for
their criticisms of MSHA in such a way to make clear to Jim Walter Resources management the
identity of the miners who had sent the letter. !d.
On August 30, 1996, the UMWA, on behalf of Burgess, Loggins, and McAteer, filed a
complaint against MSHA, Lawless, McCormick, and the MSHA Assistant Manager for District
11, Frank Young, pursuant to section 105(c)(2) ofthe Mine Act.3 In the complaint the UMWA
alleged that MSHA officials had disclosed in violation of section 103(g) the identity of miners
who sent the May 24 letter and, in so doing, had also interfered with the exercise of the
complainants' rights in violation of 105(c)(1) ofthe Mine Act. Compl. I at 1, 3, 4.
Docket No. SE 97-18-D
In the spring and summer of 1996, UMWA representatives, including Local Union 8982
president B. Ray Pate, raised various safety and health concerns with MSHA District 11
Supervisor Tom Meredith, Lawless, and Young. 19 FMSHRC at 296. On approximately August
9, 1996, Lawless and Young met with UMWA representatives, including Pate, regarding the
UMWA's complaints about District 11 staff and enforcement problems at mines within District
11. ld.
On approximately August 19, 1996, MSHA Inspector Allen Scott advised Pate that he
had been informed by Supervisor Meredith that Pate, the Local Union 8982 Safety Committee
(the "safety committee"), and all miners working at the U.S·. Steel Concord Preparation Plant and
associated facilities (the "Plant'~) could no longer telephone health and safety complaints into the
MSHA office. I d.;,Compl. II at 3 ~ 8. Rather, complaints were to be written and hand delivered.
19 FMSHRC at 296.
On September 19 and 25, 1996, the UMWA filed section 105(c) complaints against
MSHA, including Meredith, Lawless, and Young. 19 FMSHRC at 296. The UMWA alleged, in
3

Although the UMWA filed its complaint under section 105(c)(2), it is clear that it
intended to file under section 105(c)(3). 19 FMSHRC at 295 n.1. The judge found the error to
be immaterial, and that fmding is not challenged on review. !d.

part, in-the complaints that, during an investigation of the Plant on March 28, 1996, Meredith
informed mine management of the identity of the miner representative who filed a complaint,
that Meredith asked mine management for employment with the company, and that Meredith and
District 11 personnel had conducted negligible enforcement or investigative action. 19
FMSHRC at 296; Compl. II, Attach. A at 1-2. In addition, the UMWA described the change of
policy requiring complaints to be written and hand-delivered. Compl. II, Attach. A at 2. By
letters dated September 23 and October 9, 1996, MSHA denied the UMWA's complaints.
Compl. II, Attach. B.
On October 17, 1996, the UMWA, on behalf of Pate, the safety committee, and all miners
working at the Plant, filed a complaint against MSHA, Meredith, Lawless, and Young pursuant
to section 105(c)(2) of the Mine Act. In the complaint the UMWA alleged that Meredith's
change of policy amounted to retaliation for the information provided by Pate and other UMWA
representatives on August 9, in violation of section 105(c) of the Mine Act. Compl. II at 3-4 ~ 9.
On October 23, 1996, the Secretary filed a motion to consolidate the proceedings (SE 96367-D and SE 97-18-D) and to dismiss the complaints. Citing Wagner v. Pittston Coal Group,
12 FMSHRC 1178 (June 1990), aff'd, 947 F.2d 943 (table), I991 WL 224257 (4th Cir. Nov. 5,
I991 ), the Secretary argued that the complaints against MSHA and the named individuals fail
under principles of sovereign immunity. S. Mot. to Consolidate and Dismiss at 3-7.
The judge granted the Secretary's motion to consolidate and dismiss. 19 FMSHRC at
295. As to the motion to dismiss, the judge first concluded that the Commission's decision in
Wagner required a holding that MSHA was immune from suit under principles of sovereign
immunity. Id at 297-98. The judge rejected the UMWA's· argument that Wagner was not
applicable on the basis that the miners' complaints in Wagner were oral and not protected by
section 103(g)(I) of the Mine Act, while the instant written complaints were subject to the
protections of section I 03(g)(I ). Id at 297. The judge reasoned that while section I 03(g)( 1)
prescribes p·rocedures by which the Secretary shall maintain the confidentiality of miners who
raise safety complaints in writing, section lOS(c)(I) encompasses within its protection oral as
well as written complaints. Id Second, the judge concluded that Wagner also compelled the
result that the individual employees ofMSHA were immune from suit. Id at 298. The judge
found unavailing the UMWA' s argument that MSHA employees are liable upon application of
respondeat superior principles,. reasoning that such a cause of action is not recognized under the
Mine Act. ld The judge found that, in any event, the conduct of the MSHA employees here is
indistinguishable from the conduct of the MSHA employees in Wagner, and that the Fourth
Circuit, applying principles of respondeat superior, had concluded that those employees had not
exceeded the scope of their authority so as to be subject to liability. ld. at 299. Accordingly, the
judge dismissed the UMWA's complaints. Id
The Commission granted the petition for discretionary review subsequently filed by the
UMWA and heard oral argument.

694

II.
Disposition
A.

The Wagner Decisions

In Wagner, the Commission concluded that MSHA and MSHA officials are not "persons"
subject to the provisions of section 105(c), dismissing those portions of Wagner's complaint
alleging that MSHA and MSHA officials had violated section 105(c) of the Act by adopting a
policy, which they enforced against Wagner, of disclosing to coal companies the names of
miners who had reported safety violations. 12 FMSHRC at 1182, 1186-87. The Commission
reached its conclusion by noting that the United States, as the sovereign, is immune from suit
except as it consents to be sued and that waivers of immunity must be unequivo_cally expressed.
Id at 1184 (citing Rushton Mining Co., 11 FMSHRC 759,766 (May 1989)). The Commission
reasoned that the Mine Act contains no such waiver of immunity from suit for MSHA and its
employees under section I 05(c). !d. at 1184, 1185.
The dissenting Commissioners in Wagner disagreed with the majority's conclusion that
MSHA employees are immune from suit under the Mine Act in all circumstances. ld at 1188.
They noted that when an action is brought against individuals employed by MSHA, a different
analysis is required. !d. Specifically, they reasoned that there must first be an examination to
determine whether, in fact, the suit is in reality against the United States or against the individual,
depending upon the nature of the relief sought. !d. They also stated that an MSHA official is
subject to suit for specific relief if the official's actions are outside the scope of his authority or
unconstitutional. ld. at 1189.
Wagner appealed only that portion of the Commission's decision holding that MSHA
employees are not subject to suit. In an unpublished decision, the Fourth Circuit Court of
Appeals first determined that "MSHA employees acting within the scope of their authority are
agents of the sovereign, and therefore cannot be liable under section 105(c)," reasoning that
"person" is defined without reference to governmental entities. 1991 WL 224257, at *2. The
Court next examined whether the named MSHA employees "acted so far outside the scope of
their statutory authority as to become 'persons' who may be individually liable for violating
section 105(c)." Id The Court concluded that, because section 105 contains no statutory
guarantee of confidentiality regarding the identity of miners who inform MSHA of safety
violations, there was no basis for a conclusion that the named MSHA employee exceeded his
statutory authority by disclosing the identity of a miner. ld.

695

B.

Whether MSHA is Immune from Suit under the Mine Act

The UMWA argues that MSHA should be held liable for Mine Act violations to the
extent that it ratifies illegal conduct by its employees. UMWA Br. at 19-21. The Secretary
responds that the plain meaning of section 105(c), established canons of statutory construction,
and the Mine Act's legislative history support the judge's conclusion that Congress did not
intend to subject MSHA to discrimination charges. S. Br. at 4-21.
The Commission has recognized that it "is a settled principle of federal law that the
United States, as the 'sovereign,' is immune from suit except as it consents to be sued." Rushton,
11 FMSHRC at 765 (citing Block v. North Dakota, 461 U.S. 273, 280 (1983); United States v.
Mitchell, 445 U.S. 535, 583 (1980)). "Waivers of sovereign immunity 'cannot be implied but
must be unequivocally expressed,"' and "[o]nly Congress may waive sovereign immunity." !d.
(quoting United States v. King, 395 U.S. 1, 4 (1969)) (other citations omitted). The Supreme
Court recently reiterated that a "waiver of the Federal Government's sovereign immunity must be
unequivocally expressed in statutory text." Lane v. Pena, 518 U.S. 187, 192 (1996). The
Supreme Court further emphasized that a "statute's legislative history cannot supply a waiver
that does not appear clearly in any statutory text; 'the unequivocal expression of elimination of
sovereign immunity that we insist upon is an expression in statutory text.'" !d. (quoting United
States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992)). Therefore, the consideration of whether a
waiver of sovereign immunity exists as to MSHA is limited to the text of the Mine Act.
Section 105(c)(1) provides in part that "[n]o person shall ... interfere with the exercise of
the statutory rights of any ... representative of miners ... because
such ... representative ... filed or made a complaint under ... this [Act]." 30 U.S.C.
§ 815(c)(l). The term "person" is defined in section 3(f) as "any individual, partnership,
association, corporation, firm, subsidiary of a corporation, or other organization." 30 U.S.C.
§ 802(f).
We reaffirm the Commission's holding in Wagner, 12 FMSHRC at 1184, that MSHA is
not a "person" subject to the provisions of section 105(c). As the Commission noted in Wagner,
"'[i]n common usage, the term person does not include the sovereign, [and] statutes employing
the phrase are ordinarily construed to exclude it."' !d. (quoting Wilson v. Omaha Indian Tribe,
442 U.S. 653, 667 (1974)). In addition, no governmental entity is specifically included within
the definition of "person," although governmental entities are specifically referred to in other
definitions in section 3. !d. For instance, section 3(a) defines "Secretary" as "the Secretary of
Labor or his delegate," and section 3(n) defines "Administration" as "the Mine Safety and Health
Administration in the Department of Labor." 30 U.S.C. § 802(a), (n).

696

Although the term "other organization" within the definition of "person" may be
interpreted to include MSHA, another plausible interpretation would exclude MSHA, given the
lack of specific reference. The D.C. Circuit Court of Appeals has explained that an "Act of
Congress is not unambiguous, and thus does not waive immunity, if it will bear any 'plausible'
alternative interpretation." Department ofArmy v. FLRA, 56 F.3d 273, 277 (D.C. Cir. 1995)
(citing Nordic Village, 503 U.S. at 34); see also Hubbardv. Administrator, EPA, 982 F.2d 531,
532-33 (D.C. Cir. 1992) (stating that Congress' intent to waive sovereign immunity is
"unequivocally expressed" if it is "so clear and explicit as to brook no reasonable doubt").
Because the term "person" is capable of plausible alternative interpretations, either including or
excluding MSHA, the Mine Act does not unequivocally express a waiver ofMSHA's immunity
from suit for alleged violations of section 105(c)(1 ).
Moreover, section 103(g)(l), upon which the UMWA also bases its co~plaint,4 does not
contain an express waiver ofMSHA's immunity from suit. Section 103(g)(1) does not explicitly
state the basis for the issuance of a citation for breach of the responsibilities in processing safety
complaints, or the parties subject to liability. Any waiver ofMSHA's immunity from suit would
have to be impermissibly implied from the subsection. Accordingly, we affirm the judge's
holding that MSHA as an agency is immune from suit under sections 105(c) and 103(g)(l) of the
Mine Act, and affirm the judge's dismissal of the complaints against MSHA.
C.

Whether MSHA Employees are Immune from Suit under the Mine Act

The UMWA argues that the Commission should overrule its holding in Wagner that
MSHA employees are immune from suit under section 105(c) of the Mine Act in all
circumstances. UMWA Br. at 2-3. It submits that MSHA employees should be subject to
liability when their actions exceed the scope oftheir employment. Id.; UMWA Reply Br. at 1517. The UMWA argues that, even if the Commission declines to modify Wagner, the present
case is distinguishable because the complaints in Wagner were oral, unlike the written complaint
at issue here, which would fall within the protection of section 103(g). UMWA Br. at 22-26. In
addition, the UMWA contends that the officials' conduct here is more egregious because they
were acting for personal motives, thus losing their protection under principles of respondeat
superior. ld. at 24-26.
The Secretary responds that the judge properly dismissed the complaints against the
MSHA officials. S. Br. at 11. She submits that the plain meaning of section 105(c) and the Mine
Act's legislative history support the judge's conclusion that Congress did not intend to subject
MSHA officials to discrimination charges. !d. at 11-21. The Secretary argues that even ifthe
Commission decides that MSHA employees enjoy only qll<:llified immunity, substantial evidence
supports the judge's determination that the named MSHA officials were acting within the scope
of their authority and were therefore immune from liability. Id. at 32-41. The Secretary,
4

The UMWA alleges that, in addition to a violation of section 105(c)(1 ), the disclosure
of identities amounted to a separate violation of section 103(g). Compl. I at 1, 3, 4.

697

-

applying Alabania laws of respondeat superior, submits that the allegations in the complaints do
not establish that the named officials were acting wholly for personal reasons, although they
might have exercised poor judgment. !d. at 35-40.
Although the judge correctly applied Commission precedent, we conclude that it is
appropriate to overrule the Commission's Wagner decision as it applies to MSHA officials.
Therefore, we reverse the judge's determination that MSHA employees cannot be sued
individually under the Mffie Act. Our decision to overrule Wagner is based on the continuing
development of case law, which recognizes an exception to sovereign immunity in some
circumstances as it applies to federal officials.
As the dissenting Commissioners in Wagner recognized ( 12 FMSHRC at 1189), even in
the absence of an explicit statutory waiver of liability against federal officials, a suit against an
individual federal official for specific relief is not barred by sovereign immunity where the
challenged actions of the official are beyond the official's statutory authority, that is, ultra vires,
or unconstitutional. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, ·689-90,
696-97 (1948); Dugan v. Rank, 372 U.S. 609,621-22 (1963). The doctrine of sovereign
immunity does not apply in such cases because the conduct against which specific relief is
sought is beyond the officer's power and, therefore, is not the conduct of the sovereign.5 Larson,
337 U.S. at 690. This exception has gained wide recognition, including within Fourth Circuit
and the circuits to which this case could be appealed.6 See, e.g., Wagner, 1991 WL 224257, at *2
(considering whether MSHA employees "acted so far outside the scope of their statutory
authority" as to become individually liable); Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir.
1996); Florida Dep 't of Bus. Regulation v. Department of Interior, 768 F.2d 1248, 1251-52 (lith
Cir. 1985), cert. denied, 475· U.S. 1011 (1986); Clark v. Library of Congress, 750 F.2d 89, 103
(D.C. Cir. 1984).
In de~errnining whether an officer's actions are ultra vires and exceed the scope of his
authority, it is appropriate to consider whether the officer's conduct was based on a lack of
delegated power. 7 Dugan, 372 U.S. at 622; Larson, 337 U.S. 690, 695. Official action is not
invalid "if based on an incorrect decision as to law or fact, if the officer making the decision was

5

The UMWA's argument that MSHA is liable to the extent that it ratifies the illegal
conduct of its employees must fail. If an MSHA employee is subject to suit for a violation of the
Mine Act, it is because he has exceeded the scope of his delegated powers and cannot be said to
be acting on behalf of his sovereign.
6

The Secretary acknowledges that federal employees may be divested of sovereign
immunity and held to act outside of the scope of their employment for "egregious" conduct. S.
Br. at 26-27 n.l2; Oral Arg. Tr. 24.
7

The UMWA has made no allegations that the MSHA employees' conduct was
unconstitutional.

698

-

empowered to do so." Larson, 337 at 695; see also Aminoil US.A., Inc. V. California State
Water Resources Control Bd., 674 F.2d 1227, 1234 (9th Cir. 1982); 14 Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3655, at 226 (2d ed.
1985). The Supreme Court in Larson explained that while an officer's actions may establish a
wrong to the plaintiff, "it does not establish that the officer, in committing that wrong, is not
exercising the powers delegated to him by the sovereign., Larson, 337 U.S. at 693. Therefore,
scope of authority "turns on whether the [official] was empowered to do what he did; i.e.,
whether, even if he acted erroneously, it was within the scope ofhis delegated power." United
States v. Yakima Tribal Court, 806 F.2d 853, 860 (9th Cir. 1986) (citing Pennhurst State Sch
and Hasp. v. Halderman, 465 U.S. 89, 112 n.22 (1984)), cert. denied, 481 U.S. 1069 (1987); see
also Painter v. Shalala, 97 F.3d 1351, 1358 (lOth Cir. 1996); New Mexico v. Regan, 745 F.2d
1318, 1320 n.1 (lOth Cir. 1984).
Finally, as the dissenting Commissioners in Wagner also recognized (12-FMSHRC at
1188), actions against individual federal officers may fail as actions against the sovereign if the
relief requested operates against the sovereign. Pennhurst, 465 U.S. at 101 n.l1; Florida, 768
F .2d at 1251. Courts make this determination by examining the issues and the effect of the
judgment sought. Florida, 768 F.2d at 1251 . An action is against the agency if the relief sought
requires payment of monies from the Federal Treasury, or would restrain the government from
acting, or compel it to act. Jd.; Larson, 337 U.S. at 704; Coleman v. Espy, 986 F.2d 1184, 1189
(8th Cir. 1993).
In sum, we overrule the majority's holding in Wagner that MSHA employees are not
subject to suit for Mine Act violations in any circumstances. We adopt the holding of the
dissenting Commissioners in that case and reiterate their summary of governing principles:

An MSHA official is subject to individual suit, and cannot raise a
_sovereign immunity bar, if his actions are unconstitutional, or
conflict with and exceed the scope of his statutory or regulatory
authority and amount to more than a mistake of la~ or fact in the
exercise of delegated duties, and if the relief sought against the
individual is not a claim against the United States Treasury, does
not interfere with a government program or does not restrain the
Government from acting or compel it to act.
12 FMSHRC at 1189. Moreover, in considering whether the alleged violative actions amounted
to more than a mistake of law or fact, it is appropriate to consider whether the official's conduct
was motivated by retaliatory intent. Cf Ramon by Ramon v. Soto, 916 F.2d 1377, 1383 n.7 (9th
Cir. 1989) (quoting Yakima, 806 F.2d at 860 ("At a certain point, 'a violation of a statute or
regulation is so inconsistent with the agent's authority that he divests himself of sovereign
immunity."')).

699

Applying these principles, we agree with the Secretary that the UMWA has sought relief
that in part operates against MSHA. S. Br. at 4-5 n.l . However, because the UMWA brought ·
suit against MSHA in addition to the named individuals, we do not dismiss the case based upon
the nature of the relief sought. If relief is appropriate, it shall be fashioned so as not to operate
against MSHA.
We also agree with both parties that there is an insufficient record to determine whether
the named MSHA officials' actions exceeded the scope of their authority and amounted to more
than a mistake oflaw or fact in the exercise of delegated duties. See Oral Arg. Tr. 8-9, 32-33
(acknowledgments by counsels to both parties that evidence is insufficient to determine whether
officials' actions were motivated by retaliatory intent). Accordingly, in Docket No. SE 96-367D, we vacate the judge's dismissal of the complaints against McCormick, Lawless, and Young
and remand for the development of a record on the allegations set forth in the_complaint, as
amended. The judge shall examine whether the actions of those named respondents who
attended the May 29 meeting exceeded the scope of their statutory authority and amounted to
more than a mistake of law or fact. 8 If the judge finds that any of the named MSHA officials are
subject to suit, s~e shall consider whether such officials violated sections 103(g)(1) and IOS(c)(l)
and, if so, the judge shall order appropriate specific relief that does not operate against MSHA.
In Docket No. SE 97-18-D, we vacate the judge's dismissal of the complaint against
Meredith, Lawless, and Young and remand for the development of a record on the allegations set
forth in the complaint regarding the change of policy. 9 If the judge finds that any of the named
MSHA officials are subject to suit, she shall consider whether such officials violated section
105(c)( 1) and, if so, the judge shall order appropriate specific relief that does not operate against
MSHA.

8

We caution the judge against adopting the reasoning of the Fourth Circuit in Wagner.
The court did not consider the statutory guarantee of confidentiality set forth in section 103(g)(l)
of the Mine Act. See 1991 WL 224257, at *2.
9

The allegations in Attachment A to the complaint do not constitute separate causes of
action against Meredith, Lawless, and Young for alleged violations of section 105(c). In its
complaint, the UMWA stated that "Meredith's change in policy toward the Complainants" was
the basis for its allegation of violation of section 105(c). Compl. II at 3-4. Evidence included in
Attachment A may be considered only as relevant to the change in policy. .

700

Ill.
Conclusion
For the foregoing reasons, \>..'e affirm the judge· s determination that MSHA is immune
from suit and the dismissal of the complaints against MSHA. We vacate the judge's dismissal of
the complaints against McCormick, Meredith, Lawless, and Young and remand for further
proceedings consistent '':ith this decision.

Robert H. Beatty, Jr., Commis ·oner

701

Chairman Jordan and Commissioner Verheggen concurring in part and dissenting in part:

We concur in the decision of our colleagues, with the exception of their disposition
regarding the complaints against Lawless and Young. We would affirm the dismissal ofthe
complaints against Lawless and Young in Docket No. SE 96-367-D on the basis that the original
and amended complaints fail to set forth any allegations of conduct by Lawless and Young that
would constitute violations of sections 103 (g)(l) or 105(c)(1 ). The violative conduct complained
of occurred during the accident investigation team meeting on May 29, 1996. Compl. I at 2-3
~~ 4-7. While Commissioners Riley and Beatty have directed the judge to "examine whether the
actions of those named respondents who attended the May 29 meeting exceeded the scope of their
statutory authority and amounted to more than a mistake. of law or fact." slip op. at 10 (emphasis
added). there are no allegations that Lawless and Young were present at that meeting. In fact, the
UMWA filed an amended complaint to specifically delete its reference to Lawless' presence at the
meeting, which it included in its original complaint. Compl. I at 21!4; Am. Compl. at 2 ~ 4.
Accordingly, we believe that the action should be dismissed against Lawless and Young based
upon the UMWA' s failure to state a claim against them upon which relief can be granted. Cf
UAfWA v. Williamson Shaft Contracting Co., 3 FMSHRC 32, 33 (Jan. 1981 ).
We would also affirm the dismissal of the complaint against Lawless and Young in Docket
No. SE 97 -18-D because here, too, the UMW A has failed to state a claim against them upon
which relief can be granted. The UMW A does not make any specific allegations concerning the
manner in which Lawless and Young violated section 105(c). The UMWA alleges only that
Lawless and Young met with UMW A representatives. including Pate, regarding the UMWA's
complaints about enforcc:ment in District 11 , and that the named officials violated section
105(c)(l ). Compl. II at 3-4 ~~ 7-9. Even taken as true, such allegations do not state a claim of
discrimination under section 105(c), nor could such conclusory allegations of violation withstand
a motion to dismiss. 2 James Wm. Moore, Moore 's Federal Practice§ 12.34[1][b] (Donald R.
Coquillette et al. ~ds., 3d ed. 1998).

Theodore F. Verheggen, C

cl/
702

Commissioner Marks concurring in part and dissenting in part:
I concur in my colleagues' opinion, which overrules the Wagner decision and permits suit
against MSHA officials under appropriate circumstances. In addition, I join the majority in
vacating the judge's dismissal of the complaints against the named individuals. However, I
believe that, if the record reveals that MSHA, as an agency, ratified the despicable acts that are
alleged to have occurred in the two complaints at issue, then MSHA should be subject to suit and
held accountable under the Mine Act for discrimination. Accordingly, I dissent.
Section 105(c)(l) of the Mine Act provides:
No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherw~se
interfere with the exercise of the statutory rights of any miner, [or]
representative of miners ... in any ... mine subject to this [Act]
because such miner, [or] representative of miners ... has filed or
made a complaint under or related to this [Act], including a
complaint notifying the operator or the operator's agent, or the
representative of the miners ... of an alleged danger or safety or
health violation ... , or because of the exercise by such miner, [or]
representative of miners ... on behalf of himself or others of any
statutory right afforded by this [Act].
30 U.S.C. § 815(c)(l) (emphasis added).
If the conduct that is alleged to have occurred in this case had been performed by a person
other than an MSHA official, there would be no dispute that a cause of action would lie under
section 105(c) of the Mine Act. The two complaints allege interference with the rights and
abilities of miners' representatives to make safety complaints to MSHA without fear of
retaliation. The question in this case turns on whether MSHA qualifies as a person under the
Mine Act. The word person is defined in section 3(f) as "any individual, partnership, association,
corporation, firm, subsidiary of a corporation, or other organization." 30 U.S.C. § 802(f). The
majority has concluded that MSHA does not fall into the category of"other organization." I
disagree.
Instead, I am persuaded by the reasoning of then Chief Administrative Law Judge
Broderick in Local 9800, UMWA v. Secretary of Labor, 2 FMSHRC 2680, 2682-84 (Sept 1980)
(ALI), who when faced with this question determined that "MSHA is a person under section
105(c) prohibited from discriminating against any miner." Id at 2684. Judge Broderick relied
on the legislative history of the Mine Act, which emphasizes that "the prohibition against
discrimination applies not only to the operator but to any other person directly or indirectly
involved, and also made it clear that section 105(c) was "to be construed expansively." 2
FMSHRC at 2683 (citing S. Rep. No. 95-181, at 36 (1977), reprinted in Senate Subcommittee on

703

-

Labor, Committee on Human Resources, 95th Cong., Legislative History ofthe Federal Mine
Safety and Health Act of1977, at 624 (1978) (emphasis added)). The judge pointed to the
exception carved by the Supreme Court to express waivers of sovereign immunity when a statute
was "intended to prevent injury and wrong." 2 FMSHRC at 2683 (citing Nardone v. United
States, 302 U.S. 379, 384 (1937)). In addition, the judge found instructive Congress' curtailment
of the doctrine of sovereign immunity in 5 U.S.C.§ 702, which does not apply to proceedings
under the Mine Act but applies to other agencies and which states that:
An action in a court of the United States seeking relief other than
money damages and stating a claim that an agency or an officer or
employee thereof acted or failed to act in an official capacity or
under color of legal authority shall not be dismissed ... on the
ground that it is against the United States ....
Against this backdrop of the diminishing strength of sovereign immunity, Judge Broderick relied
on the fact that the alleged acts of discrimination were uniquely within the domain of this
Commission and.that miners would have no alternative forum to litigate infringement of safety
rights. 2 FMSHRC at 2683-84. He accordingly permitted the UMWA's complaints to go
forward against MSHA. ld at 2686.
The majority, by requiring a literal waiver of sovereign immunity in the Mine Act, has
frustrated Congressional intent to prohibit discrimination by any person or organization. As has
been often recognized, "[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). Certainly, an agency that is
responsible for protecting the safety of miners should be held to the same standard of
accountability as mine operators or other miners. Indeed, if the allegations in this case prove to
be true, they highlight the need to limit the sovereign immunity of MSHA and to hold MSHA
liable for its violations of the Mine Act. 1

1

My conclusion that MSHA is not immune from suit applies to both the section
105(c)(1) and section 103(g) allegations. Section 105(c)(1) expressly contains a prohibition
against any person interfering with the statutory rights, such as those contained in secti<?n 103(g),
of a miner or representative of miners. In addition, the portion of section 103(g)(l) at issue is
directed specifically and exclusively at the Secretary and requires that the Secretary ensure that
"[t]he name of the person giving such notice ... shall not appear in such copy or notification."
Because Congress expressly fashioned the requirement at issue to apply to the Secretary, I am led
to one inescapable conclusion- that Congress intended the Secretary to be liable under the
Mine Act and waived sovereign immunity for MSHA's violations ·o f the Act.

704

Accordingly. I hold that a cause of action has been stated against MSHA by the UMWA
and I would not dismiss MSHA from the suit.
·

705

Distribution

Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Judith Rivlin, Esq.
United Mine Workers of America
900 l 51h Street, N.W.
Washington, D.C. 20005
Administrative Law Judge Jacqueline R. Bulluck
Federal Mine Safety & Health Review Commission
Office of Admini~trative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

706

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

July 8, 1998

SECRETARY OF LABOR,
MINE SAFETY AND- HEALTH
ADMINISTRATJON (MSHA),
on behalf of RONALD MAXEY
V.

Docket No. KENT 97-257-D

LEECO, INC.

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

ORDER

BY: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners
On March 31, 1998, the Commission, upon consideration of the Petition for Discretionary
Review ("PDR") filed by Leeco, Inc. ("Leeco"), directed review in this matter. The following
day, Leeco filed a Motion to Withdraw Petition, stating that it had agreed to pay to the Secretary
of Labor the penalty assessed by the judge and had entered into a settlement agreement with
complainant Ronald Maxey. In an April23, 1998, unpublished order, the Commission directed
the parties to submit their settlement agreement for review befor~ the Commission would treat
th~ motion to withdraw the PDR as one to vacate the direction for review and dismiss the appeal.
Pursuant to their Joint Motion to Approve Confidential Settlement, and to Seal Record
("Joint Motion"), Leeco and Maxey have submitted their settlement agreement and request that,
upon in camera review, it be approved and sealed. It is well established that oversight of
proposed settlements in discrimination cases is committed to the Commission's sound discretion.
Secretary ofLabor on behalfofHopkins v. ASARCO, Inc., 19 FMSHRC 1, 2 (Jan. 1997); Reid v.
Kiah Creek Mining Co., 15 FMSHRC 390, 390 (Mar. 1993); Secretary ofLabor on behalfof
Gabossi v. Western Fuels-Utah, Inc., 11 FMSHRC 134, 135 (Feb. 1989); Secretary ofLabor on
behalfofCorbin v. Sugartree Corp., 9 FMSHRC 197, 198 (Feb. 1987). We have reviewed the
settlement and, upon full consideration, we grant the Joint Motion, approve the settlement, and
seal it in accordance with the parties' request.
Despite the fact that the parties have not objected to Commission review of their
agreement, Commissioner Beatty, writing in partial dissent, questions our authority in general to

707

-

review settlement agreements in discrimination cases. He apparently views the authority of the
Commission to review settlements of civil penalties under section 11 O(k) of the Act as exclusive~
barring review of any other type of settlement made in any Commission proceeding. Section
105(c), howe·; er, empowers the Commission to grant such relief as it deems appropriate in
discrimination cases. This broad grant of authority must of necessity include the authority to
review settlement agreements arising under section 105(c), for if no such authority existed, the
ability of the Commission and its judges to ensure that discriminatees are made whole would be
severely cunailed, 1 a result at odds with the intent ofthe Mine Act? All the more compelling a
reason for Commission review of settlements is the chance of an agreement being made that is
"inconsistent with the enforcement scheme of the; Act." Amax Lead Co. ofMissouri, 4 FMSHRC
975, 978 (June 1982).

1

The settlement reviewed in ASARCO, for example, indicated that the parties had failed
to consider whether a monetary award to the complainant represented damages or back pay, a
distinction with significant taxation consequences that could have left the complainant with
much less of an award than he had ever contemplated. 19 FMSHRC at 2.
2

SeeS. Rep. No. 95-181, at 37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., Legislative History ofthe Federal Mine Safety and
Health Act of 1977, at 625 (1978) ("It is the Committee's intention that . . . the Commission
require, all relief that is necessary to make the complaining party whole and to remove the
deleterious effects ofthe discriminatory conduct .... ").
·

708

Accordingly, the Commission's direction for review is vacated and this proceeding is
dismissed.

~ · £~
ML~n,
Chairm#
•
Marc Lincoln Marks, Commissioner

mes C. Riley, Commissioner

Theodore F. Verheggen, Co

709

Commissioner Beatty, concurring in part, dissenting in part:
While I concur in the result reached by the Commission majority in its order vacating the
pending petition for discretionary review and dismissing this proceeding, I write separately to
state my views on what I consider to be a significant issue raised by the pending case - the
scope of the Commission's authority to review and approve settlement agreements. I have
serious questions about the source of the Commission's authority to review and approve
settlements that relate ~ot to the assessment of a civil penalty, but rather to negotiated back pay
awards designed to resolve allegations of unlawful discrimination in cases arising tmder section
105(c)(2) and (3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2), (3)
(the "Mine Acf'). 1
Congress has granted the Commission authority to review and approve settlements
involving civil penalties. This statutory mandate can be found in the express language of section
llO(k) ofthe Mine Act, which states that "[n]o [contested] proposed penalty ... shall be
compromised, mitigated, or settled except with the approval of the Commission." 30 U.S.C. §
820(k) (emphasis added). This authority is also referenced in Rule 30 of the Commission's
Procedural Rules·, which states: "In determining the amount ofpenalty, neither the Judge nor the
Commission shall be bound by .a penalty proposed by the Secretary or by any offer of settlement
made by a party." 29 C.F.R. § 2700.30(b) (emphasis added). The legislative history of section
11 O(k), however, speaks only of the Commission' s authority to approve the settlement of civil
penalties, and contains no discussion of the Commission's new-found right to pass judgment on
the propriety of a back pay settlement. Nor does any other provision of the Mine Act authorize
the Commission to approve back pay settlements in cases arising under section 105(c) of the
Mine Act.
My colleagues contend (slip op. at 2) that the Commission's authority to review
settlement agreements in cases arising under section 105(c) "must of necessity" be derived from
section 1OS(c), ~hich grants the Commission authority ''to take such affirmative action to abate
[a section 105(c)) violation as [it] deems appropriate, including, but not limited to, the rehiring or
reinstatement of the miner to his former position with back pay and interest." 30 U.S.C. §
815(c)(2). In my view, however, the broad grant of authority in section 105(c)(2) to order
appropriate relief for unlawful discrimination found in cases litigated before Commission cannot
be properly relied upon to expand the scope of the Commission's authority to approve
settlements, which are typically entered into before any determination of discriminatory conduct
has been made, particularly in the absence of any indication by Congress that it intended to grant
the Commission that authority. To the contrary, as noted above, the Commission's authority to
1

While my colleagues in the majority correctly note that the parties herein have not
objected to Commission review of their agreement, I believe this has no relevance to the question
of whether the Commission has the authority to review and approve settlements in discrimination
cases. Certainly, the parties' assent to review could not sanction action by the Commission that
otherwise would be outside the scope of its statutory authority. ·

710

approve settlements is discussed expressly only in section 11 O(k) in the context of settlement of a
proposed penalty.
My colleagues also assert that, if no authority to review and approve section 105(c)
settlements existed, the ability of the Commission and its judges to ensure that discriminatees are
made whole would be "severely curtailed," contrary to the "intent of the Mine Act." Slip op. at
2. I believe, however, that the Secretary ofLabor, who generally represents complainants in
discrimination cases, is in the best position to ensure that discriminatees are made whole in
section 105(c) cases that settle prior to a final Commission decision. Significantly, in this case,
the Secretary did not object to the terms of the settlement between Maxey and Leeco. In cases
where the Secretary is not a party, the miner likely will be represented by private counsel, or, in
rare cases, proceed in the litigation pro se. Even in the latter case, I have confidence that miners
understand, better than anyone else, the value of their labor when it comes to negotiating a back
pay award.
My colleagues in the majority state that oversight of proposed settlements in
discrimination cases is committed to the Commission's sound discretion, citing Secretary of
Labor on behalfofHopkins v. Asarco, Inc., 19 FMSHRC 1, 2 (Jan. 1997), and several other prior
cases. In Asarco, as in several of the other decisions, the Commission cited Pontiki Coal Corp.,
8 FMSHRC 668, 674-75 (May 1986), for the proposition that "[o]versight of proposed
settlements is committed to the Commission's sound discretion." 19 FMSHRC at 2.
Significantly, however, Pontiki did not involve a settlement of a discrimination claim, but rather
a judge's determination that the amount of a penalty agreed to by the Secretary and the operator
was an inadequate assessment for the four violations involved in that case. 9 FMSHRC at 673,
678. After reviewing Pontiki, and the cases cited by my colleagues, however, I have serious
reservations about the Commission's authority to review back pay settlements. In Asarco and the
other cases cited, the Commission, relying on Pontiki, has taken an increasingly expansive role in
reviewing settlement agreements, which has led it to evaluate the propriety of negotiated back
pay ·awards arid ot)ler related matters in cases arising under section 105(c) of the Act? This
expansion in the SC<?pe of the Commission's authority to review settlements has evolved without
any analysis or discussion by the Commission of the source of its legal authority to take a more
expansive role in this area. Likewise, my colleagues offer no explanation of the source of the
Commission's authority to review settlement agreements in discrimination cases other than to
opine that such authority "must of necessity" be derived from section 105(c). Slip op. at 2. In
my view, this unexplained expansion of an otherwise narrowly-defined statutory authority to
approve settlements of civil penalties has led the Commission into areas not envisioned by
Congress, resulting in an unjustified deiay in allowing parties to enjoy the benefits of the bargain
that they negotiate, as has occurred in this case.
2

For instance, in Asarco, the Commission directed the settling parties to clarify the issue
of whether the operator's agreed-upon payment to the complainant was a net amount to be paid
to the miner directly, or whether deductions were first to be taken out of the payment. 19
FMSHRC at2.

711

Because of my initial concerns about the Commission's authority to review and approve
the type of settlement involved in this case, I declined to join in the unpublished order of the
Commission majority dated April 23, 1998, directing the parties to submit their settlement
agreement for review by the Commission. Rather, as I stated in my joint dissent (with Chairman
Jordan) to that order, I then would have granted the unopposed motion ofLeeco, Inc., to
withdraw its petition for discretionary review, and dismissed the appeal, without requiring the
parties to submit their settlement agreement to the Conunission for its review and approval. In
retrospect, I continue to believe that this was the appropriate course to have followed in this case,
which would have avoided the continuation of what I consider to be an unjustified expansion in
the scope of the Commission' s authority to approve settlements, as well as a delay of over 2
months in the implementation of the settlement agreement negotiated by the parties.

Robert H. Beatty, Jr., Commissioner

712

Distribution

Marco M. Rajkovich, Jr., Esq.
Julie 0. McClellan, Esq:
Wyatt, Tarrant & Combs
250 West Main Street, Suite 1700
Lexington, KY 40507 .
MaryBeth Bemui, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd., Suite B-201
Nashville, TN 37215
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

713

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

July 10, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 98-231
A.C. No. 15-15845-03541

v.

P&P INC. OF KENTUCKY

BEFORE: .Jordan, Chainnan; Marks, Riley, Verheggen, and Beatty, Commissioners

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994) r·.Mine Act"'). On June 12, 1998, the Commission received from P&P Inc. of
Kentucky (..P&PJ a request to reopen three penalty assessments that had become fmal orders of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). It has been
administratively determined that the Secretary of Labor does not oppose the motion for relief filed
by P&P.
Under section 1OS(a) of the Mine Act, an operator has 30 ·days following receipt ofthe
Secretary of Labor· s proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order ofthe Commission. 30 U.S.C. § 815(a).
P&P asserts that its late filing of a hearing request to contest the proposed penalties for the
violations alleged in Citations Nos. 4020604, 4007060, and 4490920 was due to
miscommunication between the operator and its counsel. Mot. at 1. According to P&P, the
Secretary of Labor's Mine Safety and Health Administration ("MS~A") issued 21 citations
following a fatal accident at the Martiki Mine on September 19, 1997. ld. at 2. P&P contends
that on October 30, 1997, it filed a notice to contest 19 of those citations, and that on

714

February 12, 1998, MSHA filed proposed assessments as to all but the three citations here at
issue. !d. P&P asserts that it timely contested each of those proposed assessments. !d. P&P
alleges that on March 27, it received MSHA's proposed assessments on the remaining three
citations, an .: that on April10, P&P forwarded a copy of this proposed assessment to its counsel.
!d. P&P asserts that on June 3, MSHA issued it a notice indicating that the proposed assessments
for those three citations had become final. !d. at 3. The operator submits that it and its counsel
each believed the other would send the notice of contest, and, as a result, the notice of contest was
not timely sent. !d. at 4. P&P explains that due to this misunderstanding, its hearing request was
not received by MSHA until June 11 -45 day~ after the 30-day deadline. !d. P&P asserts that it
is entitled t0 relief under Fed. R. Civ. P. 60(b)(l) and 60(b)(6).
We have held that, in appropriate circumstances and pursuant to Rule 60(b), we possess
jurisdiction to reopen uncontested assessments that have become final under section 105(a).
Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim Walter Resources, Inc., 15
FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and
that, if the defaulting party can make a showing of adequate or good cause for the failure to timely
respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal
Preparation Servs .. Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with Rule
60(b)(1 ), we previously have afforded a party relief from a final order of the Commission on the
basis of inadvertence or mistake. See Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct.
1997); Stilhmter Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997); General Chem. Corp., 18
FMSHRC 704, 705 (May 1996).
..,

The record indicates that P&P intended to contest the three citations here at issue and that,
but for an apparent lack of coordination with its counsel, it likely would have timely submitted the
hearing request and contested the proposed penalty assessments for these citations. In the
circumstances presented here, P&P's late filing of a hearing request qualifies as inadvertence or
mistake \},.'ithin the meaning ofRule 60(b)(l). See Peabody, 19 FMSHRC at 1614-15 (granting
operator's motio~1 to reopen when failure to timely submit notice of contest resulted from lack of
coordination betw~en mine and operator's counsel); Stillwater, 19 FMSHRC at 1022-23 (granting
operator's motion to reopen when operator failed to submit reque·st for hearing to contest
proposed penalty due to lack of coordination between recipient of assessment at mining facility
and its attorneys, after indicating intent to contest related citation).

715

Accordingly, in the interest of justice, we grant P&P' s unopposed request for relief and
reopen these penalty assessments that became final orders with respect" to Citation Nos. 4020604,
4007060, and 4490920. The case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

Marc Lincoln Marks, Commissioner

Robert H. Beatty, Jr., Commissione

716

•

Distribution
Mark N. Savit, Esq.
Ruth L. Ramsey, Esq.
Patton Boggs, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037
DoiiDa E. SoiiDer, Esq.
Office of the Solicitor
U.S. Department ofLabor
2002 Richard Jones Road, Suite B-20
Nashville, TN 37215
Sheila Cronan, Esq.
Office of the Solicitor
U.S. Department ofLabor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203

717

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

July 14, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 97-113-R

v.

CANTERBURY COAL COMPANY

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

DECISION
BY THE COMMISSION:
This contest proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 80 I et seq. ( 1994) (" Mine Act" or "Act"). At issue is a citation issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") charging Canterbury
Coal Company ("Canterbury") with violating 30 C.F.R. § 90.1 02(a)' when it transferred a Part 90
miner, 2 without his written consent, to a position on a different shift rotation in a low dust area of

1

Section 90.1 02(a) reads as follows:
Whenever a Part 90 miner is transferred in order to meet
the respirable dust standard in § 90.100 ... , the operator shall
transfer the miner to an existing position at the same coal mine
on the same shift or shift rotation on which the miner was
employed immediately before the transfer. The operator may
transfer a Part 90 miner to a different coal mine, a newly-created
position or a position on a different shift or shift rotation if the
miner agrees in writing to the transfer.

2

A Part 90 miner is a miner who has been classified under section 90.3 as showing
evidence of the development of pneumoconiosis and "who has exercised the option .. . under

718

the mine. Administrative Law Judge Gary Melick concluded that Canterbury violated section
90.1 02(a) and affirmed the citation. 19 FMSHRC 957 (May 1997) (ALJ). The Commission
granted Canterbury's petition for discretionary review challenging the judge's decision. For the
reasons that follow, we affirm the judge's decision.
·
I.
Factual and Procedural Background
Russell Bollinger was a 46 year-old miner who had worked underground for
approximately 21 years. Tr. 22-23. In May 1991, he started working at Canterbury's DiAnne
Mine, an underground coal mine in Pennsylvania. .Jt. Stip. 6; S. Br. at 2. In October 1994, he
became an underground construction foreman at the mine. Jt. Stip. 8. As underground
construction foreman, Bollinger worked a three-shift rotation, working on a different shift each
week . .Jt. Stip. 9. The times and rotation order of his shifts were I I :00 p.m. to 8:00a.m., 3:00
p.m. to 12:00 midnight, and 7:00a.m. to 4:00p.m. Jt. Stip. 10. In May 1995, his chest was
x-rayed and his personal physician informed him that he tested positive for pneumoconiosis. Tr.
24. 26; Gov't Ex. 1. He showed his doctor's report to the safety director at Canterbury; however,
the company made no changes in his job duties and did not sample his job for dust exposure. Tr.
25. In two subsequent conversations, Bollinger told Canterbury management that he was
concerned about dust exposure from his job and asked to be transferred to a position where he
would be exposed to less coal dust. Tr. 28. However, Canterbury did not transfer him and no
dust samples were taken at his position. /d.
Approximately 5 or 6 months after his first positive xray, Bollinger had a second xray
and the results were forwarded to MSHA. Tr. 26; Jt. Ex. 2. By letter dated August 5, 1996,
MSHA informed Bollinger that he was eligible to exercise his right under 30 C.F.R. Part 90 to
wor.k in a low dust area with concentrations not exceeding 1.0 mg/m3 of air (the "dust standard"),
as required by 30 C.F.R. § 90.100.3 19 FMSHRC at 958~ Gov't Ex. I . MSHA informed
Canterbury by letter dated August 28, 1996, that Bollinger was exercising his Part 90 right to
work in an area which complied with the dust standard. Jt. Stip. ·5.
Bollinger requested that he remain at the position of underground ·construction foreman
and be sampled for dust expos~re. Jt. Stip. 14. Canterbury informed MSHA of Bollinger's ·

§ 90.3 ... to work in an area of a mine where the average concentration of respirable dust ... is
continuously maintained at or below 1.0 milligrams per cubic meter of air, and who has not
waived these rights." 30 C.F.R. § 90.2.
3

Section 90.1 00 states in pertinent part:
[T]he operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during
each shift to which the Part 90 miner is exposed at or below 1.0
milligrams per cubic meter of air.

719

request and took five dust samples of his position as required by 30 C.F.R. § 90.207(a). Jt. Stip..
15. The sampling showed an average dust concentration of 1.5 mg/m3 , which exceeded the dust
standard. Jt. Stip. 16. Based on these results, MSHA cited Canterbury for a violation of the dust
··
standard. ld
Bollinger was not qualified for the only other position, general assistant, which existed at
the mine on his three-shift rotation. Jt. Stips. 17, 20-22. Canterbury did not attempt to reduce
the dust exposure at Bollinger's position. Jt. Stip. 19. Instead, it decided to transfer him to the
position of mine examiner, which entailed examining and maintaining air courses in the mine.
Jt. Stips. 24-25. Three dust samples were taken of mine examiner positions at the mine prior to
Bollinger's transfer. Jt. Stip. 24-26. The sampling showed an average dust concentration of 0.9
mg/m3, which complied with the dust standard. Jt. Stip. 26. Canterbury altered the work
schedule of the mine examiner position so it would be on the same shift rotation that Bollinger
worked as an underground construction foreman. Jt. Stip. 24. On November 5, I 996, it
transferred Bollinger to his new position as mine examiner and on November 6, it notified
MSHA ofthe transfer. Jt. Stips. 27-28. Five dust samples were taken of Bollinger's new
position and the average dust concentration was 4.0 mg/m3, well above the dust standard. Jt.
Stips. 29-30.
At a meeting held between Canterbury management and MSHA officials, it was decided
to eliminate the air course maintenance duties of Bollinger's job as mine examiner in an attempt
to reduce his dust exposure. Tr. 50-53. After this modification, Bollinger's position was again
sampled and the average dust concentration was 1.28 mg/m3 , which exceeded the dust standard.
.lt. Stips. 32-33.
On February 3, 1997, without obtaining Bollinger's written consent, Canterbury
transferred him to the position of shuttle car operator on a different shift rotation. Jt. Stips. 34,
37-38. Canterbury had notified MSHA by letter dated January 31, 1997, ofthe planned transfer.
Jt. Stip. 35. Dust samples of his new position indicated an average concentration of 1.0 mg/m3,
which complied with the dust standard. Jt. Stips. 39-40. Canterbury advised.MSHA of the
sample results by letter dated February 11. Jt. Stip. 41. On March 20, MSHA issued a citation to
Canterbury charging that it violated section 90.1 0;2(a) when it changed Bollinger's shift rotation
without his written consent. Jt. Stips. 42-43. On April 1, Canterbury changed the shift of the
general (non-face) mechanic pos!tion at the mine to match Bollinger's original three-shift
rotation and then transferred him to that position. Tr. 19-20; Jt. Stip. 59; Jt. Ex. 14.
Subsequently, MSHA terminated the citation against Canterbury. Tr. 19; Jt. Stip. 58; Jt. Ex. 13.
Canterbury challenged the citation and the case went to hearing. In his decision; the
judge concluded that section 90.102(a) clearly does not allow an operator, in order to comply
with the dust standard, to transfer a Part 90 miner, without his written consent, to a position on a
different shift rotation. 19 FMSHRC at 959. Accordingly, he affirmed the citation. Jd

720

II.
Disposition
Canterbury argues that the judge erred in affirming the citation. C. Br. at 20. It contends
that section 90.1 02(a) does not address the issue presented by this case- whether a mine
operator can transfer a miner to a position on a different shift rotation in order to comply with the
dust standard when there is no existing position on the same shift rotation. !d. at 5, 17-19. It
further argues that the Secretary's interpretation of the standard is not entitled to deference
because it is unreasonable and contrary to the intent of Congress as expressed in the underlying
provisions of the Mine Act. Jd. at 7-9. Canterbury asserts that it could not transfer Bollinger as
required by section 90.1 02(a) because a position on his shift rotation was not available at the
mine. 1d. at 5. 10. It argues that, in order to comply with the dust standard, it had to transfer him
to a different shift rotation, and, as a consequence, his transfer did not violate section 90.1 02(a).
1d. at 5-6, 9-10, 19. Canterbury also asserts that Bollinger' s transfer falls within an exception in
MSHA ' s Program Policy Manual, Vol. V, Part 90, section 90.102(a), at 210 (July I, 1988) (the
"PPM"), to the shift transfer restrictions in section 90.102(a). 1d. at 6-7.
The Secretary argues that the judge correctly held that Canterbury violated section
90.102(a). S. Br. at 11. She contends that the standard clearly and unambiguously prohibits the
transfer of a Part 90 miner, in order to comply with the dust standard, to a different shift rotation
without the miner's written agreement. Jd. at 7-8. The Secretary also argues that section
90.102(a) provided Canterbury with alternative ways to comply with the dust standard but that
Canterbury failed to use these alternatives. 1d. at 17-19. She further asserts that the exception in
the PPM to the shift transfer restrictions of section 90.1 02(a) does not apply to Bollinger. ld. at
11-13.
The J?rinciple question on review is whether Canterbury violated section 90.1 02(a) when
it transferred Bollinger, without his written consent, to a position on a different shift rotation to
comply with the dust standard. The Commission has determined that, where the language of a
regulatory provision is clear, the terms of that provision must be ·enforced as they are written
unless the regulator clearly intended the words to have a different meaning or unless such a
meaning would lead to absurd results. Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct.
1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). "In determining the
meaning of regulations, the Commission thus utilizes 'traditional tools of ... construction,'
including an examination of the text and the intent of the drafters." A max Coal Co., 19
FMSHRC 470, 474 (Mar. 1997) (quoting Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42,
44-45 (D.C. Cir. 1990)).
Section 90.102(a) states that an "operator may transfer a Part 90 miner to ... a position
on a different shift or shift rotation if the miner agrees in writing to the transfer." It is undisputed
that, in order to meet the dust standard, Canterbury transferred Bollinger to a position on a
different shift rotation without his written consent. Jt. Stips. 34, 38. Based on the plain meaning
of the regulation, we conclude that Canterbury violated section 90.102(a) when it transferred
Bollinger to a different shift rotation without his written agreement.

721

The language of the Mine Act and the regulatory history of the standard support this plain
meaning approach. The main purpose of Title II of the Mine Act is to protect miners from
·
pneumoconiosis by reducing "to the greatest extent possible" their exposure to respirable dust.
30 U.S.C. § 84I(b). To this end, section 203(b) ofthe Mine Act, 30 U.S.C. § 843(b), established
interim mandatory standards, which gave miners with pneumoconiosis the option of reducing
their exposure to respirable dust by allowing them to transfer to positions with lower dust
concentrations. However, those standards did not require operators to obtain a miner's written
consent, before transfer.ring him to a different shift rotation, in order to comply with the
maximum allowable dust concentrations.
In 1980, MSHA noted that few Part 90 qualified miners were exercising their rights to
transfer because many of them were concerned about possible repercussions to their work duties,
wages, and shift reassignments. 45 Fed. Reg. 80,760, 80,763 (I 980). Responding lo concerns
about the effectiveness of the Part 90 program, MSHA issued final mandatory standards for
section 203(b) by amending Part 90. ld. at 80,760. The new mandatory standards provide that
Part 90 miners should not be exposed to average dust concentrations greater than 1.0 mg/m3• 30
C.F .R. § 90.100. They also require that operators obtain Part 90 miners' written consent when
transferring them· to different shift rotations to comply with the dust standard. 30 C.F.R.
§ 90. I 02(a). See Mullins v. Beth-Elkhorn Coal Co .. 9 FMSHRC 891, 897 (May I 987) (an
operator can transfer a Part 90 miner to a position on a different shift rotation, which complies
with the dust standard, provided "the miner agrees in writing.").
Notwithstanding the foregoing, Canterbury contends that section 90.1 02(a) does not
address the situation where a Part 90 miner must be transferred to comply with the dust standard
but there is no existing position on the same shift rotation at the mine. C. Br. at 5. It argues that,
in order to comply with the dust standard, it had to transfer Bollinger to a different shift rotation.
!d. at 5, I 0. However, as the judge correctly pointed out, Canterbury did not have to violate the
regulation in order to comply with the dust standard. 19 FMSHRC at 959. For example, it could
have complied with the dust standard by improving the dust concentration at Bollinger's original
position4 or it could have attempted to obtain Bollinger's written consent before transferring him
to a different shift rotation.5 Regardless of the alt~rnatives open to Canterbury, however, it is
clear from section 90.1 02(a) that it was prohibited from transferring Bollinger to a different shift
rotation without his written consent. Id.

4

In the Federal Register preamble, the Secretary stated that, to comply with the dust
standard, an operator could transfer a Part 90 miner according to section 90.1 02(a) or it could
"implement control measures to lower the concentration of respirable dust in the position
currently held by the affected miner ...." 45 Fed. Reg. at 80,761.
5

There is no explicit record evidence indicating that the operator asked for Bollinger's
written consent.

722

-

CanterburY also argues that Bollinger's transfer to a different shift rotation is covered by
an exception in the PPM to the shift transfer restrictions of section 90.102(a). C. Br. at 5-7. The
PPM states in pertinent part:
The operator may transfer a Part 90 miner without
regard to ... [the] shift limitations [of section 90.102(a)] ifthe
respirahle dust concentration in the position of the Pari 90
miner qomplies with the dust standard, but circumstances
require changes in job assignments at the mine. Reductions in
workforce or changes in operational methods at the mine may
be the most likely situations which would affect job
assignments.
PPM at 2 10 (emphasis in original). Canterbury contends that Bollinger's transfer falls within this
exception. C. Br. at 6-7. It insists that the Jack of an appropriate existing position on Bollinger's
original shift rotation is a situation simi lar to a workforce reduction or change in operational
methods. !d. However, it is plain from the language of the exception that it only applies when
the Part 90 miner's position complies with the dust standard but the operator needs to transfer the
miner for reasons unrelated to compliance with the dust standard. PPM at 2 10; see also 45 Fed.
Reg. at 80,76 1, 80,766. Because Bollinger's original position as underground construction
foreman and his subsequent position as mine examiner were in violation of the dust standard, the
exception clearly does not cover his transfer to the position of shuttle car operator on a different
·shift rotation.

723

Ill.
Conclusion
For the foregoing reasons, we affirm the judge's determination that Canterbury violated
section 90.1 02(a).6

•
Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Robert H. Beatty, Jr., Commissioner

6

In light of our disposition, we do not need to address Canterbury's concerns that some
bumping may occur under Part 90, which may cause animosity between miners (C. Br. at 13), or
the Secretary's interpretation that "existing position" means any position normally found in the
coal mining industry (S. Br. at 9-13).
724

Distribution

Joseph A. Yuhas, Esq.
1809 Chestnut Avenue
P.O. Box25
Barnesboro, PA 15714
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

725

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

July 27, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEV A 94-38 I
WEVA 95- 100
WEVA 95-101

V.

CANNELTON INDUSTRIES, INC.,
CHARLES PATTERSON, and
GEORGE RICHARDSON

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

DECISION
BY: Riley, Verheggen, and Beatty, Commissioners
These consolidated civil penalty proceedings, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C . § 801 et seq. ( 1994) ("Mine Act" or "Act"), involve a citation
issued to Cannelton Industries, Inc. ("Cannelton") alleging an unwarrantable and significant and
substantial ("S&S") violation of30 C.F.R. § 75.400 1 for failure to clean up an accumulation of
coal under a conveyor belt, and related allegations that Charles Patterson and George Richardson,
shift foremen for Carmelton, were personally liable under section IIO(c) of the Mine Act, 30
U.S.C. § 820(c), for knowingly authorizing the violation. Administrative Law Judge T. Todd
Hodgdon concluded tliat Carmelton violated section 75.400 and that the violation was S&S and
the result of unwarrantable failure. 18 FMSHRC 651, 654-59 (Apr. 1996) (ALJ). He also
concluded that Patterson and Richardson knowingly authorized the violation by not taking steps
to have the accumulation cleaned up. ld. at 659-61. For the reasons that follow, we affirm the
judge' s finding of violation, vacate·his unwarrantable failure and section 11 O(c) findings, and
remand for further proceedings.

1

Section 75.400 states:
Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active
workings, or on electric equipment therein.

726

I.
Factual and Procedural Background
On March 1, 1994, Michael Hess, an inspector with the Department of Labor's Mine
Safety and Health Administration ("MSHA"), conducted a quarterly inspection of Cannelton's
Stockton Mine (Portal Nos. 1 and 130), an underground coal mine in Kanawha County, West
Virginia. 18 FMSHRC .at 652; Gov't Ex. 1. At that time, Cannelton was constructing a new ·
section to reroute its No. 3 conveyor belt, and coal was being mined at the face. loaded into
shuttle cars, and dumped into a temporary feeder on the conveyor belt. 18 ·fMSHRC at 652; Tr.
250-52,259, 325-27. While inspecting the conveyor belt, Hess found an accumulation of dry,
loose coal and coal dust that measured approximately 10 feet square and 4 feet deep, which was
in contact with the belt and roller. 18 FMSHRC at 652-53; Tr. 41-44, 49-50; Gov't Exs. r & 5 at
3. The accumulation was located under the V -scraper, a device that removes coal from the
bottom, or return, belt. 18 FMSHRC at 652-53 & n. l ; Tr. 60, 181 -82, 256-57, 325, 384. Upon
reviewing the preshift-onshift mine examination reports, Inspector Hess found that, under the
section entitled "Violations and other Hazardous Conditions Observed and Reported," the No. 3
belt V-scraper had been reported as "dirty" or "needs clean[ing]" on every shift during the
previous 2 weeks with no indication that any corrective action had been taken. 18 FMSHRC at
653; Tr. 45-46, 50, 53, 66; Gov't Exs. 1, 9 & 15. As shift foremen, both Patterson and
Richardson had reviewed and countersigned the preshift-onshift reports. 18 FMSHRC at 658,
660; Gov't Exs. 9 & 15.
Based on the foregoing, Inspector Hess issued Cannelton Citation No. 4195028} pursuant
to section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l), alleging an unwarrantable and S&S
violation of section 75.400 for failure to clean up the accumulation. 18 FMSHRC at 653.
Subsequently, the Secretary of Labor proposed a civil penalty assessment of $3,600 against
Can.nelton. Ic!- at 661; Gov ' t Ex. 6. In addition, following a special investigation, the Secretary
proposed civil penalty assessments of$2,000 each against Patterson and Richardson, pursuant to
section llO(c) of the Mine Act, alleging that, by countersigning ~he preshift-onshift reports and

2

Citation No. 4195028 .states:

.
.
Management showed. a high degree of negligence by
allowing loose dry coal to accumulate under the No. 3 belt
conveyor to a point where the loose coal was in contact with the
belt. The coal accumulation measured approximately 10 feet in
width, 10 feet in length and 4 feet in height. This condition was
reported in the pre-shift mine examination report since 2/15/94 on
each shift with no corrective actions taken. A fire hazard is present
with a moving conveyor belt running in loose dry coal.
Gov't Ex. 1.

727

failing to take corrective action, they knowingly authorized the violation. 18 FMSHRC at 653,
659-61; Gov't Exs. 11 & 12. Cannelton, Patterson, and Richardson challenged the proposed
assessments.
Following an evidentiary hearing, the judge concluded that Cannelton violated section
75.400, that the violation was S&S, and that it resulted from Cannelton's unwarrantable failure to
comply with the standard. 18 FMSHRC at 654-59. He also concluded that Patterson and
Richardson knowingly authorized the violation by not taking steps to have the accumulation
cleaned up. !d. at 659-61. In analyzing the issue of violation, the judge found that "there is no
dispute that an accumulation of coal, as described by Inspector Hess, existed in the area of the Vscrapper [sic] on the No. 3 belt." !d. at 654. The judge further found that the accumulation had
grown over a 2-week period of time. !d. at 654-55. He.based this finding on the testimony of
Dwight Siemiaczko, Lee Tucker, and Sheldon Craft, the beli examiners who had noted that the
No. 3 belt V-scraper was dirty in the preshift-onshift reports throughout the 2-week period. !d.
The judge discredited the testimony of Patterson, Richardson, and Mickey Elkins, the shift
foremen, that the accumulation had happened a short time before the inspector arrived .. Id. at
655-56. In crediting the testimony of the belt examiners over that of the shift foremen, the judge
stated:
The three foremen theorized that the accumulation discovered by
Hess was the result of a shuttle car hitting the spill board at the belt
feeder which in turn knocked the belt out of alignment and caused
most of the coal to fall directly onto the bottom belt where it
remained until it was removed by the V-scrapper [sic]. They
believed that this must have happened a short time before the
inspector arrived.
I find that the accumulation developed over a two week
period as described by Siemiaczko, Tucker and Craft. There is no
ev~dence that any of them had any reason not to tell the truth. Nor
was there any indication at the hearing that they were not credible.
On the other hand, Richardson and Patterson not only have
the responsibility for defending the company, but face personal
liability as well: Their self-serving statements are not persuasive
when compared with the other evidence in the case. Furthermore,
there is no evidence to corroborate their speculation.

ld. at 655. With regard to the issues of unwarrantable failure and section IIO(c) liability, the
judge found that, because Patterson and Richardson had countersigned the preshift-onshift
reports, Cannelton had been placed on notice that greater efforts were necessary for compliance
and Patterson and Richardson had known about the accumulation. Id at 658-61. He also found
that Cannelton, Patterson, and Richardson did not make any effort. to clean up the accumulation.

728

/d. at 658-61. The judge assessed civil penalties of$3,600 for Cannelton and $500 each for
Patterson and Richardson. !d. at 661-62. The Commission granted the petition for discretionary
review ("PDR") subsequently filed by Cannelton, Patterson, and Richardson challenging the
judge's decision.

II.
Disposition
Cannelton, Patterson, and Richardson argue that the judge' s determinations are contrary
to law and not supported by substantial evidence. PDR at 1; CP&R Br. at I. The contestants
assert that the judge erred in crediting the belt examiners based solely on their "employment
status." PDR at 5-7; CP&R Br. at 5-9; CP&R Reply Br. at 1-6. They also assert that the judge
failed to address the testimony of Elkins, a former foreman who testified that, 3Y2 hours prior to
the inspection, the accumulation was smaller than when the inspector cited it. PDR at 6, 8;
CP&R Br. at 7, 10-11 (citing Tr. 321-24). In addition, the contestants assert that the judge erred
in finding that no evidence supports the foremen' s "speculation" as to the cause of the
accumulation. PDR at 6-7; CP&R Br. at 7-8; CP&R Reply Br. at 5-6 n.3 . They further contend
that the judge erred in finding that the notations in the preshift-onshift reports were sufficient to
provide notice of the accumulation and that the judge confused the testimony of Elkins and
Patterson regarding cleanup efforts. PDR at 8-9; CP&R Br. at 8-9; CP&R Reply Br. at 6-15?
The Secretary responds that substantial evidence supports the judge' s determinations. S.
Br. at 5-19. She asserts that the judge did not credit the testimony of the belt examiners based
only on their "employment status," but that his determination is buttressed by the foremen's
personal interests in the outcome of the case. /d. at 5-12. The Secretary also maintains that the
judge considered Elkins' testimony but gave greater credence to the testimony of the belt
examiners that the accumulation had developed during the 2 weeks prior to the inspection. ld. at
11-12 n.4. Similarly, she asserts that the judge considered evidence supporting the foremen's
"speculation" as to the cause of the accumulation but gave it littl~ credence because it was
3

Section 113(d)(2}(A)(iii) of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(iii), and
Commission Procedural Rule 7_0(f), 29 C.F.R. § 2700.76(f), provide that Commission review is
limited to the questions raised in a granted petition for discretionary review. In their petition for
discretionary review, Cannelton, Patterson, and Richardson focus on the judge' s factual findings
on which he based his ultimate conclusions regarding the issues of violation, unwarrantable
failure, and section 11 O(c) liability, without expressly challenging those conclusions. See PDR at
4-9. The contestants merely request that the Commission reverse the judge's "decision." /d. at
6, 9. We construe the contestants' petition to request reversal of the judge's conclusions
regarding the issues of violation, unwarrantable failure, and section llO(c) liability. However,
we admonish petitioners and counsel to adhere to the requirements of the Mine Act and the
Commission's procedural rules. Because the contestants do not challenge the judge's findings
related to his S&S conclusion, that issue is not before the Commission. See id. at 4-9.

729

uncorroborated. id. The Secretary further contends that the notations in the preshift-onshift
reports, along with the foremen's observance of some amount of accumulation prior to the
inspection, provided the contestants sufficient notice of the violative condition and that their
failure to ensure that it was cleaned up amounted to aggravated conduct. ld. at 14-18.
A.

Violation

The Commission has held that section 75.400 "is violated when an accumulation of
combustible materials exists." Old Ben Coal Co., 1 FMSHRC 1954, 1956 (Dec. 1979).
Although the Commission has recognized that "some spillage of combustible materials may be
inevitable in mining operations" (id. at 1958), we have held that a violative accumulation exists
"where the quantity of combustible materials is such that, in the judgment of the authorized
representative of the Secretary, it likely could cause or propagate a fire or explosion if an ignition
source were present." Old Ben Coal Co., 2 FMSHRC 2806,2808 (Oct. 1980) (footnotes
omitted).
Here, the contestants do not dispute that a sizable accumulation was present when the
citation was issued. The accumulation measured approximately 10 feet in length, l 0 feet in
width, and 4 feet in depth. Tr. 41. Moreover, Inspector Hess testified that this amount of loose
coal and coal dust would likely cause a fire because the belt and roller running in contact with the
coal was a potential source of ignition. Tr. 43, 49-52. The fact that the coal was damp beneath
the surface did not render it incombustible because, as the judge noted, it could dry out and
ignite. 18 FMSHRC at 657 (citing Utah Pmver & Light Co., Mining Div., 12 FMSHRC 965,969
(May 1990); Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21 (Aug. 1985)). In light
of the quantity of the accumulation at the time the citation was issued, we conclude that
substantial evidence4 supports the judge's finding that Cannelton violated section 75.400.
Accordingly, we affirm the judge's conclusion.
B.

Unwarrantable Failure

The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a
viol~tion. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined
that unwarrantable failure is agg~avated conduct constituting more than ordinary negligence. !d.
at 200 l. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." ld. at 2003-04;
4

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 & Piltsburgh
Coal Co., 11 FMSHRC 2159,2163 (Nov. 1989) (quoting Consolitjated Edison Co. v. NLRB, 305
.
U.S. 197,229 (1938)).

730

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable
failure test). The Commission "has recognized that a number of factors are relevant in
determining whether a violation is the result of an operator's unwarrantable failure, such as the
extensiveness of the violation, the length of time that the violative condition has existed, the
operator's efforts to eliminate the violative condition, and whether an operator has been placed
on notice that greater efforts are necessary for compliance." Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994)(citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug.
1992)).
Substantial evidence supports the judge' s finding that the accumulation was extensive.
See I 8 FMSHRC at 653-54. Inspector Hess testified the accumulation measured approximately
10 feet square and 4 feet deep. Tr. 41. Substantial evidence also supports the judge's finding
that Cannelton, through its foremen, had been placed on notice by the preshift-onshift reports that
greater efforts were necessary for compliance with the regulation. See 18 FMSHRC at 658-59.
Such reports are relevant in demonstrating that an operator had notice that greater efforts were
necessary to assure compliance with section 75.400. See Peabody, 14 FMSHRC at 1262. On
virtually every shift during the 2 weeks prior to the inspection, the No. 3 belt V-scraper had been
reported in the preshift-onshift reports as "dirty" or "needs clean[ing]" under the section entitled
"Violations and other Hazardous Conditions Observed and Reported." Gov't Exs. 9 & 15.
Patterson, Richardson; and Elkins reviewed and countersigned the preshift-onshift reports during
this period and they acknowledged that the notations indicated that an accumulation existed. ld.;
Tr. 315-16, 333, 335-36, 366, 379, 395, 402. 425-26. Thus, although the belt examiners did not
notify the foremen orally of the accumulation, we conclude that Cannelton received notice that
greater efforts were necessary to keep the No. 3 belt V-scraper clean.
With regard to the length of time the violative condition existed, however, we believe that
the judge failed to address relevant testimony in finding, based on his credibility determination,
that the accuinulation had grown for 2 weeks prior to the inspection. See 18 FMSHRC at 65356, 658. A judge'$ credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 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 t~ make a credibility determination. In re: Contests of Respirable
Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) ("Dust Cases") (quoting
Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)). 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).
Initially, we find unavailing the contestants' argument that the judge's consideration of
the foremen's personal interests was inappropriate in making his credibility determination. A
judge may evaluate numerous factors in determining witness credibility, including the motivation
of and relationship between witnesses. Huston v. Secretary ofHealth and Human Servs., 838

731

-

F.2d 1125, 1132 (lOth Cir. 1988); NLRB v. Pyne Molding Corp., 226 F.2d 818, 819 (2d Cir.
1955); Defosse v. Secretary ofHealth and Human Servs., 670 F. Supp. 1078, 1080-81 (D. Mass.
1987). However, the judge may not r~ject testimony strictly on the basis of a relationship
between a witness and a party to the proceeding. Breeden v. Weinberger , 493 F.2d 1002, 1010
(4th Cir. 1974). In this case, we conclude that the judge did not reject the foremen's testimony
solely on the basis of their employment relationship with Cannelton. Although the judge
recognized that "Richardson and Patterson not only have the responsibility for defending the
company, but face pers~nalliability as well," he found their testimony "not persuasive when
compared with the other evidence in the case." 18 FMSHRC at 655. Therefore, we conclude
that the judge's consideration ofthe foremen's personal interests is not a basis on which to
overturn his credibility determination.
Nevertheless, we agree with the contestants that the judge failed to address Elkins'
testimony that, 3 ~ hours prior to the inspection, the accumulation was smaller than when the
inspector cited it. See id. In considering the foremen ' s theory that the accumulation had
developed a short time before the inspector arrived, the judge recognized that Elkins '·' had walked
the belt about [3 ~] hours before the citation was issued and although he observed a fairly large
accumulation, it was not the size of the one found by Hess and it was not touching the belt or
rollers." !d. However, the judge rejected the foremen's theory, in part, due to their self-interest,
a basis not applicable to Elkins, who had since left the company and, therefore, was not
responsible for defending it, and who was not facing personal liability. See id; Tr. 317-18. The
judge specifically discredited the testimony of Patterson and Richardson without supplying any
reasons for discounting Elkins' testimony.
The substantial evidence standard of review requires that a fact finder weigh all probative
record evidence and that a reviewing body examine the fact finder's rationale in arriving at his
decision. Amax Coal Co., 18 FMSHRC 1355, 1358 n.7 (Aug. 1996). In order for the
Commission to effectively perform its review responsibility, a judge must analyze and weigh the
relevant testimony, make appropriate findings, and explain the reasons for his decision.
Secretary ofLabor.on behalf of Hyles v. All Am. Asphalt, 18 FMSHRC 2096, 2101 (Dec. 1996).
Commission Procedural Rule 69(a) also requires that a judge's decision "include all findings of
fact and conclusions of law, and the reasons or bases for them, on all the material issues of fact,
law or discretion presented by the record." 29 C.F.R. § 2700.69(a). In light of the judge's failure
to address Elkins' testimony, we cannot effectively revi·ew his finding, based on his credibility
determination, that the accumulation had grown for 2 weeks prior to the inspection. Thus, we
vacate the judge's finding and remand the matter for further consideration. We direct the judge
to consider Elkins' testimony and make a credibility determination with respect to Elkins.
We also agree with the contestants that the judge erred in finding that there is no evidence
to co~oborate the foremen's "speculation" as to the cause of the accumulation. In discrediting
the foremen's testimony, the judge stated "[n]o one testified ... that the belt was out of
alignment, that coal was observed traveling from the feeder to the V -[scraper] on the bottom belt
or that the belt was re-aligned after the accumulation was discovered." See 18 FMSHRC at 655-

732

56. However, the record indicates that both Richardson and Inspector Hess observed coal
coming off the belt at the time they discovered the accumulation. Tr. 46-47, 62, 273-74. Hess
acknowledged that "the only way that [he] could conceive of the coal getting on the bottom belt"
was from the No. 3 belt feeder. Tr. 63-64. The belt examiners also corroborated this view.
Siemiaczko testified that he assumed that the accumulation was caused by either a "feeder
misaligned on the belt" or a splice in the belt. Tr. 136, 149. Tucker stated that he thought that
the accumulation was caused by "spillage from the feeders ... onto the bottom belt." Tr. 194.
Craft also stated that he thought that the accumulation was caused by "the feeder dump[ing] on
the belt. Tr. 226. Moreover, Richardson testified that, after discovering the accumulation, he
telephoned the section boss, Steve Dean, and told him to shut down and reset the feeder. Tr.
274-75, 3 I 2. For the purpose of our unwarrantable failure analysis, a key question is the duration
ofthe violative condition, not its specific cause. However, evidence of the cause of the
accumulation may corroborate Elkins' testimony that the accumulation was larger 3Y2 hours after
he had observed it. We thus vacate the judge's finding that no evidence supports the foremen's
"speculation" as to the cause of the accumulation, and remand the matter for further
consideration insofar as the cause of the accumulation may be relevant to the length of time that
it had existed.
Finally, with regard to Cannelton's cleanup efforts, the judge failed to mention relevant
testimony in finding that Cannelton did not make efforts to eliminate the violative condition. See
18 FMSHRC at 658-59. Richardson testified that, on every shift, there were two men working
on the belts who would shovel, rock dust, and clean up around the drives and V-scraper. Tr. 26465, 270. He explained that, because the V-scraper was a problem area and it was reported as
dirty in the preshift-onshift reports, his men automatically knew to clean it. Tr. 266, 270, 314.
Richardson also stated that, upon learning that the V-scraper was dirty, he directed his men to
stop there and, if excessive coal was present, to clean it up. Tr. 282, 298-99. Richardson
remembered having to realign the feeder two or three times during the 2 weeks prior to the
inspection in order to correct spillage problems, and he testified that the coal was cleaned up each
time. Tr. 289~90 . . Elkins also testified that Cannelton employed men whose job was to keep the
belt clean. Tr. 352._ He testified that, when an accumulation at the V-scraper reached the height
of the belt, he would send men with shovels to remove some of it and that, during the 2 weeks
prior to the inspection, he directed his men to do so. Tr. 338-39, 344-45, 363. Patterson also
testified that he had two men assigned to cleaning belts on every shift. Tr. 376-77, 387, 396.
Patterson testified that, during th~ 2 weeks prior to the inspection, he observed three
accumulations at the V-scraper, one of which he specifically assigned his belt cleaners to clean
up and the others which he shoveled himself. Tr. 386-92, 396, 407-08. Patterson explained that
his men attempted to get a scoop to the area to clean up the accumulation but that the area was
extremely wet and muddy so they were unable to do so. Tr. 408-10. Then, he directed the men
to shovel the accumulation and he saw them shoveling before he left. Tr. 410,412. Patterson
testified that the two men shoveled the area for approximately 2Y2 hours and then men working
on the next shift, for whom Elkins was the foreman, finished cleaning and rock dusted the area.
Tr. 412,420-21, 423.

733

We conclude that the judge failed to consider the testimony of Patterson, Richardson, and
Elkins regarding their efforts to clean up the accumulation.5 Such remedial efforts are relevant to
the unwarrantable failure evaluation and should have been considered by the judge. See, e.g.,
Peabody, 14 FMSHRC at 1263-64~ Utah Power & Light Co., 11 FMSHRC 1926, 1933-34 (Oct.
I 989). We therefore vacate the judge's finding that Cannelton did not make efforts to eliminate
the violative condition, and remand the matter for further consideration of the evidence adduced
during the hearing on this issue. If, on remand, the judge determines that Cannelton made efforts
to clean up the accumulation, he shall also evaluate such efforts insofar as they may be relevant
to the length of time that the accumulation had existed.
Our decision to vacate the judge's unwarrantable failure finding should not be construed
as advocating or encouraging operators to allow accumulations of coal to exist on a belt line. We
fu lly recognize the seriousness ofthis pa11icular violation and do not wish to downplay its
significance. At issue here, however, is not whether a violation of section 75.400 occurred, or if
the violation was S&S. Instead, the issue on review is a more narrow one that requires us to
focus on whether the operator's conduct rises to the level of unwarrantable fa ilure. On·this point,
we are guided by established precedent that, to properly make this determination, a judge must
fully evaluate the operator's conduct in accordance with certain factors identified by the
Commission to determine whether a violation is unwarrantable. The factor that is particularly
germane on this appeal is the operator's efforts to eliminate the violative condition.
As discussed previously, the judge found that Richardson and Patterson did not make any
specific attempts to have the accumulation cleaned up. I 8 FMSHRC at 658. Based on our
review of the record, this finding is contradicted by certain evidence adduced during the hearing.
The judge appears to have failed to consider relevant testimony of Cannelton's witnesses
concerning their efforts to clean up the accumulation. Accordingly, we believe our responsibility
is to vacate the judge's decision, and remand the case with an instruction that the judge consider
and evaluate .this testimony and determine whether it influences his prior finding that this
violation was unwarrantable.
Unlike our dissenting colleagues, we will not ourselves attempt to determine here
whether the evidence of cleanup efforts by Cannelton was sufficient to warrant elimination of the
unwarrantable failure designation, or whether aggravated or intentional misconduct occurred. In
our view, the determination is 111ore appropriately made'by the judge, who, as the trier of fact,
had a previous opportunity to observe the witnesses directly, and is therefore in the best position
to evaluate this testimony and determine whether, if credited, it requires a reversal of his previous
finding that this violation was unwarrantable. We believe this approach is preferable to that
taken by the dissenters, who elect to invade the province of the judge and evaluate the record
testimony on their own and conclude that the judge's failure to consider it was mere "harmless
5

We note that, as the contestants point out (CP&R Reply Br. at 6-9), the judge appears to
have confused the testimony of Elkins and Patterson regarding the. unsuccessful attempt to clear~
up the accumulation. 18 FMSHRC at 658-59.

734

error," based on their opinion that, even if credited, the evidence did not reflect a cleanup effort
"reasonably designed to eliminate the accumulation." Slip op. at 15 n.4.6 We believe that our
approach ensures that due process of the law is afforded to all parties in making this crucial
determination.
In sum, we vacate the judge's determination that the violation was the result of
Cannelton's unwarrantable failure, and remand for findings of fact related to the length of time
that the accumulation h~d existed and Cannelton's cleanup efforts.' The judge shall also make
new findings for any of the six penalty criteria set forth in section II O(i) of the Mine Act,

6

In concluding that any efforts taken by Cannelton to clean up the accumulation were
unreasonable and ineffectual, and therefore cannot provide a basis for a finding that the violation
was not unwarrantable, our colleagues cite to their separate opinion in Peabody Coal Co., 18
FMSHRC 494, 501 (Apr. 1994) (Chairman Jordan and Commissioner Marks, concurring in part
and_dissenting in part). In their opinion in Peabody, however, while Chairman Jordan and
Commissioner Marks agreed with the Commission majority that the judge failed to appreciate the
significance of water as a dust control measure in finding that the operator's respirable dust
violation was unwarrantable, they indicated that they would have instead vacated the judge's
determination and remanded for further analysis, based upon their unwillingness to conclude that
the record could not support an unwarrantable failure finding. ld. In that case, our dissenting
colleagues criticized the Commi~sion majority for taking the type of approach they propose to
follow here - declining to allow the judge the opportunity to determine, in the first instance,
whether his analytical error warrants a reversal of his unwarrantability determination, based upon
their conclusion that the record can only support one conclusion.
7

In vacating the judge's determination of unwarrantable failure we are not attempting to
downplay the seriousness of a violation alleging an accumulation of coal or coal dust in an
underground mining environment. Instead, our focus here is to determine if the operator's
conduct rises to the level of unwarrantable failure. To properly make this determination, the
judge must evaluate this conduct in accordance with the factors utilized by the Commission to
determine whether a violation is unwarrantable.

735

30 U.S.C. § 820(i),8 that are affected by his findings of fact and_reassess the civil penalty against
Cannelton.
C.

Section 11 O(c) Liability

. Section 11 O(c) of the Mine Act provides that, whenever a corporate operator violates a
mandatory safety or health standard, an agent of the corporate operator who knowingly
authorized, ordered, or carried out such violation shall be subject to an individual civil penalty.
30 U.S.C. § 820(c). The proper legal inquiry for determining liability under section 11 O(c) is
whether the corporate agent knew or had reason to know of a violative condition. Kenny
Richardson, 3 FMSHRC 8, 16 (Jan. 1981 ), a.ff'd on other grounds. 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 ( 1983). Accord Freeman United Coal Mining Co. v. FMSHRC, I 08
F.3d 358. 362-64 (D.C. Cir. 1997). To establish section 11 O(c) liability, the Secretary must
prove only that an individual knowingly acted, not that the individual knowingly violated the
law. Warren Steen Constr., Inc., 14 FMSHRC 11 25, 1131 (July 1992) (citing United States v.
/nt '/Minerals & Chem. Corp., 402 U.S. 558,563 (1971)). An individual acts knowingly where
he is " in a position to protect employee safety and health (and] fails to act on the basis of
information that gives him knowledge or reason to know of the existence of a violative
condition." Kenny Richardmn, 3 FMSHRC at 16. Section 110(c) liability is predicated on
aggravated conduct constituting more than ordinary negligence. BethEnergy Mines, Inc., 14
FMSHRC 1232, 1245 (Aug. 1992). Here, we conclude that the judge erred in reaching his
section 11 O(c) conclusions by failing to consider evidence regarding the foremen's efforts to
elimi nate the violative condition.
We have already concluded that the record supports the judge's findin g that Patterson and
Richardson, agents ofCannelton,9 possessed actual knowledge of the accumulation problem by
way of the preshift-onshift reports. Slip op. at 6. However, as we have determined, the judge
failed to cons.ider Patterson's and Richardson's testimony regarding their efforts to clean up the
accumulation. Because an agent's actions following his awareness of a violative condition are

8

Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties
under the Act:
[I] 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.
At the hearing, the parties stipulated that Patterson and ~chardson were agents of
Cannelton. Tr. 18-1 9.
9

736

critical to the section llO(c) analysis, we vacate the judge's detennination that Patterson and
Richardson are liable under section 11 0(c) and remand for findings of fact related to the
foremen's cleanup efforts. In the event the judge finds section llO(c) liability, he shall reassess
the civil penalty or penalties based on the section 11 O(i) criteria as they apply to individuals.
Ambrosia Coal and Consfl·. Co., 19 FMSHRC 819, 823 (May 1997); Sunny Ridge Mining Co.,
19 FMSHRC 254, 272 (Feb. 1997).

Ill.
Conclusion
For the foregoing reasons, we affirm the judge's determination that Cannelton violated
section 75.400, vacate his determinations that the violation resulted from unwarrantable failure
and that the foremen are I iable under section 11 0(c), and remand for further consideration
consistent with this opinion.

Theodore F. Verheggen, Co

Robert H. Beatty, Jr., Commissio

737

r

Chairman Jordan and Commissioner Marks, dissenting in part: .
It is clear from the record in this case that an extensive accumulation of coal existed for at

least 2 weeks at the Cannelton mine, in violation of 30 CFR § 75.400. 1 It is also clear from the
record that Cannelton officials were indifferent to this violation, simply because it was a smaller
accumulation than those they personally considered dangerous. Because we agree with the
judge's conclusion that Cannelton's conduct was "inexcusable," 18 FMSHRC 651, 659 (Apr.
1996) (ALJ), we would affirm his finding that the violation was a result of the operator's
unwarrantable failure.
The majority docs not dispute the judge's finding that the accumulation was extensive,
measuring approximately 10 feet square and 4 feet deep~ Slip op. at 6. In fact, the inspector
testified that when the violation was abated, 8 to 12 tons of coal were removed. Tr. 54 (emphasis
added). Even one of the Cannelton foremen estimated that 6 to 8 tons of coal were taken away to
abate the violation. Testimony of Richardson, Tr. 306. The majority also agrees with the judge's
conclusion that Cannelton was placed on notice of the violation by preshift-onshift reports. Slip
op. at 6. Nonetheless, despite overwhelming evidence provided by those same reports that the
accumulation had existed for at least 2 weeks, and despite clear proof that any efforts to eliminate
the accumulation were ineffectual at best and half-hearted at worst, the majority declines to
affirm the judge's finding of unwarrantable fai lure.
Our colleagues in the majority insist that a remand is necessary to permit the judge to
make a credibility determination with respect to Elkins, slip op. at 7, to ascertain the duration of
the violation. This is an unnecessary exercise for two reasons. First, the judge decided the
question of duration when he found that the accumulation existed for 2 weeks, crediting the
testimony of the two fire bosses and a general laborer. 18 FMSHRC at 65 5. While explicitly
crediting this testimony over that of Richardson and Patterson, in making this finding he also
implicitly credited their testimony over that of Elkins. See Fort Scoll Fertilizer- Cullor, Inc., 19
FMSHRC 1511, 1516 (Sept. 1997) (concluding that the judge implidtly credited miner's
testimony that he was not aware of brake problems).
More importantly, a remand is unnecessary because of the staggering amount of evidence
demonstrating that the accumulation had developed over a 2-week period. Thirty-five preshift

1

Although we agree with the majority that the judge properly found an accumulation
violation, slip op. at 5, we fear that the majority's discussion of the violation may create the
incorrect impression that some level of accumu_lation is permitted under the standard. This is not
consistent with Commission case law. In defining an accumulation in Utah Power & Light Co.,
Mining Div., 12 FMSHRC 965, 968 (May 1990), the Commission emphasized that it was
"Congress' intention to prevent, not merely to minimize, accumulations" and that section 75.400
was "directed at preventing accumulations in the first instance, not at cleaning up the materials
within a reasonable period of time after they have accumulated." ld. (citing Old Ben Coal Co., l
FMSHRC 1954, 1957 (Dec. 1979) (emphasis added).

738

reports written during that 2-week period indicated that the No. 3 belt V-scraper was "dirty" or
"need(ed] clean[ing]." Gov't Ex. 9. On 34 of those reports, the.condition was reported as
"continued," indicating that it had previously existed. Tr. 316, 335-36. After reviewing these
reports (many of which he had countersigned) during the trial, Elkins was asked whether he
denied "that there was an accumulation at the No.3 belt near the V-scraper from February 14th
to march [sic] the 1st." Tr. 336. He replied, unequivocally, "No, ma'am. I do not." ld
In addition to the preshift reports, which we find compelling, the testimony of the preshift
examiners makes clear that this accumulation increased over a period of2 weeks, and was not
suddenly created just before the inspection. Dwight Siemiaczko testified that '·from February
14th, ... it grew in size from that day to March 1." Tr. 130. Lee Tucker stated that the
accumulation occurred '•[o]ver the extended period of time .... I think the two weeks that we're
talking about that's recorded in the book." Tr. 195.2 Clearly, substantial evidence supports the
judge's finding that this accumulation slowly grew over a 2-week period, and did not suddenly
emanate 3 hours before the inspection.3
In remanding the case for further consideration of Cannelton's efforts to clean up the
accumulation, the majority fails to recognize the deeply disturbing principle underlying
Cannelton's action (or inaction). The reigning operating procedure at this mine was that the
foremen tolerated coal accumulations up to a certain amount. They were simply complacent
about accumulations smaller than those they personally considered dangerous. This classic
indifference to a dangerous ignition source is the prototype of an unwarrantable failure.
The testimony of the foremen illustrates their blase attitude. For example, Elkins, when
asked what he considered a "manageable" amount of coal accumulation, stated "(t]welve inches
or so." Tr. 363. He readily admitted passing by the relevant area 3~ hours before the inspection
and observing a 4 by 4 foot accumulation that was 18 to 24 inches deep. Tr. 322. When asked
when he would require miners to go to the area to shovel, he stated "(o]nce it [the accumulation]
g9t to a height.that concerned me," which, he subsequently admitted, was when it was 6 to 8
inches from the belt. Tr. 338-39. A remand is not necessary to determine the credibility of this
witness. Even accepting his testimony concerning the size of the accumulation, his failure to
exert reasonable effort.$ to eliminate it supports the unwarrantable failure determination.

2

The majority speculates that Siemiaczko' s and Tucker's statements that the
accumulation may have been caused by a problem with the feeder could corroborate Elkins'
testimony about the size of the accumulation. Slip op. at 7-8. However, their testimony indicates
that even if that was the cause, the accumulation nonetheless developed over a 2-week period.
3

Although we need not reach the issue, we note that an unwarrantable failure designation
for an accumulation of this size might be supported even if the duration were 3 hours instead of 2
weeks.

739

Richardson, when asked what he considered an excessive amount of coal requiring
cleanup, stated, "[A]n excessive amount of coal, it could be anything. It's according to how high
your belt is," and suggested that it needed to touch the rollers. Tr. 283. He bluntly testified that:
lfthere was a mound of coal there, [at the scraper] it presented no
problem. . . . [Y]ou could have, like I told you, 14 to 16 inches of coal, I
would think nothing of it ifl had a place over here that had a coal spillage
in it or something else wrote up that I needed the men to work on. That
would be put on the last of my list. And if they got down to it, good. If
not, it would be passed on.
Tr. 307.
Patterson testified that he only saw spillage two times at the No. 3 belt, and that both
times it was 2 or 2Y2 feet high, 4 feet by 6 feet. Tr. 389. When asked if he considered either of
the 2 or 2 Y2 foot high accumulations hazardous, he stated that he did not. I d.
In sum, the operator' s baseline was that at least a foot of coal needed to accumulate
before it made sense to worry about it. It is not surprising, therefore, that Cannelton's cavalier
attitude towards accumulations resulted in only the most perfunctory of efforts to eliminate it.
The evidence cited by the majority in support of its decision to vacate the judge's finding that
Cannelton did not make efforts to clean up, slip op. at 8, reveals lackluster attempts more
indicative of Cannelton' s nonchalant attitude about the accumulation than of a sincere effort to
remove it. Even crediting the evidence on which the majority relies, substantial evidence
indicates that Cannelton's cleanup attempt was woefully inadequate.
First, foreman Richardson testified that he never asked for additional personnel to clean
up the area .. When asked if he thought he needed additional help, he replied: "Not until I got the
violation 'cause I never seen any problem there that I needed to shut down a section or anything
to pull extra people in." Tr. 304. Although he asserted thai men worked to remove the
accumulation, he could not state how often or when this work was performed. Tr. 299.4 In
addition, miners Siemiaczko and Craft testified that they were unaware of any effort to clean up
the accumulation during the 2 weeks prior to the inspection. Tr. 140-41, 227-28. Also, the

4

Patterson testified that he did shovel the accumulation once himself. Tr. 387. He also
testified that he assigned two men to clean belts and that on one occasion he specifically assigned
his belt cleaners to clean up the accumulation at the V-scraper, Tr. 386-92, although he failed to
note these cleanup efforts in the examination books. Tr. 412,422-23. Thus, the judge's finding
that "neither Richardson nor Patterson ... made any specific attempt to have it [the
accumulation] cleaned up, 18 FMSHRC at 658, is an overstatement, b1:1t it constitutes harmless
error in light of Cannelton's overwhelming fai lure to initiate a cleap.up reasonably designed to
eliminate the accumulation.

740

inspector testified that nobody was cleaning up the accumulation when he arrived on the scene.
Tr. 60.
The facts of this case are strikingly similar to those in the recent Commission case A max
Coal Co., 19 FMSHRC 846 (May 1997), in which the Commission affirmed the judge's decision
upholding an unwarrantable failure designation on an accumulations violation. As in this case.
Amax involved an extensive accumulation that existed for several shifts preceding the issuance of
the order. We rejected Amax's defense that because the day shift manager's decision to send
only one miner to clean up the accumulation was based on a good faith (although mistaken)
belief that this would be effective, the violation should not be designated unwarrantable. Jd. at
851. We emphasized that "the operator's good faith belief must be reasonable under the
circumstances.'' !d. We held that the preshift examiner's incorrect assessment of the spi ll was
not reasonable in light of the size of the accumulation. Similarly, we fii1d that here, Cannelton's
efforts - even including those cited by the majority as the basis for its remand- were clearly
unreasonable and patently ineffectual. See Peabody Coal Co., 18 FMSHRC 494, 501 (Apr.
1996) (Chairman Jordan and Commissioner Marks, dissenting in part) ("[T]he success or fai lure
of an operator's effort to achieve compliance is a factor that must be considered in deciding
whether the operator acted reasonably and in good faith.").
The Commission's decision in Peabody Coal Co., 14 FMSHRC 1258 (Aug. 1992) is also
instructive. In that case, in which we affirmed an unwarrantable failure determination, the judge
credited the inspector's testimony that an extensive accumulation of coal had existed for up to 1
week. !d. at 1261-62. Entries for seven of the eight preshift examinations made prior to the
inspection described problems with accumulations or spilling in the relevant area. !d. at 1262.
The Commission noted that the preshift reports showed not only that the operator had prior
notice of an accumulation problem, but also demonstrated "that greater efforts were necessary to
assure compliance with section 75.400." !d. In addition, we acknowledged that Peabody's
failure to rem~dy the spilling problem was a proper consideration in the unwarrantable failure
determination, and that the judge was correct to consider the inspector's testimony that, as in this
case, at the time of the inspection no one was attempting to remove the accumulation. !d.
Finally, in Peabody, the judge found that only one miner was assigned to clean the area, and she
had other responsibilities. !d. at 1263. He concluded that this effort was not sufficient to
effectively remedy the cited accumulation, a finding which the Commission agreed supported his
determination that Peabody eng~ged in aggravated conduct. !d. Thus, substantial evidence
amply supports the judge's finding that Cannelton engaged in aggravated conduct constituting an
unwarrantable fai lure.
We also agree with the judge's determination that Patterson and Richardson are liable
under section 11 0(c). The proper legal inquiry for determining liability under section II 0(c) is
whether the corporate agent knew or had reason to know of a violative condition. Kenny
Richardson. 3 FMSHRC 8, 16 (Jan. 1981), affd on other grounds, 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983). The majority does not dispute the judge's finding that these
two foremen had actual knowledge of the accumulation, due to the preshift-onshift reports noting

. 741

such conditions, which they signed. Slip op. at 11. Foreman Richardson signed 35 reports at
issue and foreman Patterson signed 9 of those reports. Gov't. Ex. 9. Despite determining that
these foremen had actual knowledge of a persistent accwnulation, the majority incorrectly
remands the section 110(c) issue for further findings related to the foremen's cleanup efforts.
Such a remand is unnecessary because the record is replete with references regarding their abject
failure to adequately eliminate the accumulation. Supra at 13-14. No cleanup efforts were
recorded in the examination books. Tr. 293-94. The inspector testified that he had no
knowledge of any attempts by them to clean up the accumulation. Tr. 100-02. The only
evidence of Patterson's cleanup efforts is negligible, see supra at 14 n.3, and Richardson could
not cite one specific instance in which his miners cleaned up the relevant area. Tr. 298-99. Thus
substantial evidence supports the judge's finding that these individuals knew of the violative
condition and failed to take effective steps to remedy condition. When substantial evidence
supports a judge's finding, we are required under the Mine Act to affirm it. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). 5
In Prabhu Deshelly, 16 FMSHRC 1046 (May 1994), the Commission found a general
mine foreman liable under section II O(c) under facts less egregious than those presented here.
There, for 8 working days, the foreman signed the belt examiner's report, which had indicated
that the belt was dirty or needed cleaning, but took no steps to verify that the accumulations were
cleaned up. ld at 1050-5 I. Sin:tilarly, Patterson and Richardson failed to take effective steps to
remedy the accumulation problem when they were made aware by the preshift reports, which
they signed, that the problem existed.

5

The majority has apparently overlooked the posture of this case as it stands before usthe judge determined that the operator engaged in unwarrantable failure and that Patterson and
Richardson were liable under section IIO(c). Accordingly, we have not invaded the province of
the judge as our colleagues suggest, but, in accordance with Mine Act section 113, have only
reviewed the record to see whether substantial evidence supports those determinations. Having
satisfied ourselves that substantial evidence supports the judge's determinations, we vote to
affirm them.

742

Accordingly, we would afftrm the judge's determinations that the accumulation violation
was a result of unwarrantable failure, and that Patterson and Richardson are liable under section
llO(c) for knowingly authorizing, ordering, and carrying out the violation.

•

743

Distribution
David J. Hardy, Esq.
Jackson & Kelly
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judge
2 Skyline, I 0'11 Floor
5203 Leesburg Pike
Falls Church, VA 22041

744

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

July 28, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 98-308-M
A.C. No. 04-04950-05528

v.

WESTERN AGGREGATES, INC.

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

ORDER

BY THE COMM ISSION:
This m.atter arises under the Federal Mine Safety and Health Act of 1977,30 U.S.C. § 80 1
et seq. (1994) ("Mine Act"). On June 23, 1998, the Commission received from Western
Aggregates, Inc. ("Western Aggregates"), a letter dated June 22 requesting that the Commission
reopen penalty assessments that had become final orders ofthe Commission pursuant to section
I 05(a) of the Mine Act, 30 U.S.C. § 815(a). It has been administratively determined that the
Secretary of Labor does not oppose the motion for relief filed by Western Aggregates.
Under section 105(a) ofthe Mine Act, an operator has 30 days following receipt of the
Secretary's proposed penalty assessment within which to notify the Secretary that it wishes to
contest the proposed penalty. If the operator fails to notify the Secretary, the proposed penalty
assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In the June 22 letter, John Trembley, Plant Manager at Western Aggregates, asserts that
Western Aggregates' failure to timely file a hearing request to contest proposed penalties resulted
from its mistaken mailing of the request to a " payment lockbox" of the Department of Labor's
Mine Safety and Health Administration ("MSHA") in Pittsburgh, Pennsylvania, rather than to
MSHA's Civil Penalty Compliance Office in Virginia. Western Aggregates attached to the June
22letter various documents, including a letter dated May 21, 1998, from Western Aggregates to

745

MSHA's Civil Penalty Compliance Office, a Federal Express '_'Sender Activity Summary"
showing that a delivery sent by Western Aggregates was received at MSHA's payment lockbox ori
April 1, 1998, and a response letter from MSHA to Western Aggregates dated June 11, 1998.
According to its May 21 letter, Western Aggregates mailed a hearing request on March 31 to
MSHA ' s payment lockbox in Pennsylvania. MSHA's June 11 response letter alleges that on
March 3, 1998, MSHA mailed a notice of proposed penalties to Western Aggregates, that the
operator received the notice on March 6, and that the proposed penalties became final on April 5.
MSHA also indicates in the letter that because Western Aggregates was unable to present a copy
of the hearing request and the Federal Express "Sender Activity Summary" did not indicate what
was sent in the package, the operator was required to pay the proposed penalties and associated
costs.
We have held that, in appropriate circumstances and pursuant to Rule 60(b). we possess
jurisdiction to reopen uncontested assessments that have become final under section 105(a).
Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. I 994); Jim Walter Resources, Inc., 15
FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and
that, if the defaulting party can make a showing of adequate or good cause for the failure to timely
respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal
Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with Rule
60(b)( 1), we have previously afforded a party relief from a final order of the Commission on the
basis of inadvertence or mistake. See Kinross DeLamar Mining Co., 18 FMS HRC 1590, 159 1-92
(Sept. 1996); General Chem. Coi]J., 18 FMSHRC 704, 705 (May 1996); Drummond Co., 17
FMS HRC 883, 884 (June 1995).

746

On the basis of the present record, we are unable to ev~uate the merits of Western
Aggregates' position. As indicated in MSHA's June llletter, the Activity Summary does not
indicate what Western Aggregates sent to MSHA's Iockbox in Pittsburgh. In the interest of
justice, we remand the matter for assignment to a judge to determine whether Western Aggregates
has met the criteria for relief under Rule 60(b). If the judge determines that relief under Rule
60(b) is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

Marc Lincoln Marks, Commissioner

Theodore F. Verheggen, Com~i-{9 o
(

"Robert H. Beatty, Jr., Co

747

Distribution

John Trembley, Plant Manager
Western Aggregates, Inc.
P.O. Box 829
Marysville, CA 95901
Sheila Cronan, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

748

ADMINISTRATIVE. LAW JUD.G E DECISIONS

"...'

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

JUL
LOCAL 1702, DISTRJCT 31,
UNITED MINE WORKERS OF
AMERJCA (UMWA),
on behalf of 141 miners,
Applicant
v.
CONSOLIDATION COAL COMPANY,
Respondent

6 1998.
COMPENSATION PROCEEDING
Docket No. WEV A 98-1 0-C

Blacksville No. 2 Mine
Mine ID No. 46-01968
DECISION

Appearances:

Richard Eddy, United Mine Workers of America, District 31,
Fairmont, West Virginia~ on behalf of Applicant;
'Elizabeth S. Chamberlin, Esq., Consolidation Coal Company,
Pittsburgh, Permsylvania. on behalf of Respondent.

Before:

Judge Melick

This Compensation Proceeding is before me pursuant to Section Ill ofthe Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et. seq., the "Act" upon the application filed by
the United Mine Workers of America, Local 1702, District 31 (UMWA), against the
Consolidation Coal Company (Consol). The UMWA seeks compensation for 141 of its
members employed at the Blacksville No. 2 Mine, who were allegedly idled by a withdrawal
order issued by the Secretary of Labor pursuant to Section 107(a) of the Act. 1

1

Section 107(a) of the Act provides as follows:

If, upon any inspection or investigation of a coal or other mine which is subject to this
Act, an authorized representative of the Secretary finds that an imminent danger exists, such
representative shall determine the extent of the area of such mine throughout which the danger
exists, and issue an order requiring the operator of such mine to cause all persons, except those
referred to in section 104(c), to be withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that such imminent danger and the
conditions or practices which caused such imminent danger no longer exist. The issuance of an
order under this subsection shall not preclude the issuance of a citation under section 104 or the
proposing of a penalty under Section 11 0.

749

The subject order, No. 3492298, issued by Inspector Joseph Migaiolo, of the Department
ofLabor's Mine Safety and Health Administration (MSHA), on May 15, 1997, at 8:17a.m.,
·
alleges as foJiows:
A 107(a) Order is being issued for the 75 longwall section and affected
area due to a failure of the bleeder system which has shown excessive methane at
the tailgate area which has retreated to between 12 and 13 block markers.
Management has been experiencing longwall methane monitoring of 2% + for the
past two shifts at tail. Readings as high as 2.7- 3.0 were recorded by
management by methane detectors at tail. Air at the tail is returning from the gob
down the tailgate. The longwall Shear experienced greater than 2.0% which
deenergized the system at least twice on the day shift on 05/14/97, however,
methane detection by hand held showed .4 - .5% CH4 and a split at tail to gob.
Due to a progressive methane build up this order is issued for control purposes
until the operator prepares a plan and complies with the (illegible word].
The operator experienced excessive methane on 5/14/97 at the tail and also on the
midnite shift of 5115/97. As such the operator discontinued operation on the
longwall and deenergized the power from the affected area. The day shift has
been idled.
The order was terminated at 6:30p.m., on May 15, 1997 (Applicant's Exhibit No. 1,
Pg. 3). Consol subsequently contested the order before this Commission, but on February 26,
1998, the Secretary vacated the order on the grounds that it was issued in error (Applicant's
Exhibit No. 1, Pg. 4). There is no dispute that for purposes of compensation under the first two
sentences of Section 1 11 of the Act, it is irrelevant whether or not the requisite order was issued
in error or has been vacated.
Applicant asserts that because this order idled the miners on the day shift on May 15,
1997, those miners are entitled to compensation pursuant to the first sentence of Section 111.
That sentence provides as follows:
If a coal or other mine or area of such mine is closed by an order issued under
section 103, section 104, or section I 07, all miners working during the shift when
such order was issued who are idled by such order shall be entitled, regardless of
the result of any review of such order, to full compensation by the operator at their
regular rates of pay for the period they are idl~d, but for not more than the balance
of such shift.
Applicant further maintains that because the order also idled the miners on the afternoon
shift on·May 15, 1997, those miners are entitled to compensation pursuant to the second sentence
of Section 11.1. That sentence provides as follows:

750

If such order is not terminated prior to the next working shift, all miners on that
shift who are idled by such order shall be entitled to fuil compensation by the
operator at their regular rates of pay for the period they are idled, but for not more
than four hours of such shift.

It is undisputed in this case that the day shift on May 15, 1997, was scheduled to work
from 8 a.m. to 4 p.m., and that the afternoon shift on that date was scheduled to work from 4 p.m.
to 12 midnight. It is further undisputed that the operator decided at approximately 3:30am., on
May 15, 1997, to make a major air change in the mine pursuant to 30 C.F.R. § 75.324. In
accordance with that regulation, Consol was required to evacuate all non-essential persons and
remove electrical power until such time as the affected areas had been inspected and found safe.
It is undisputed that all affected miners had accordingly been withdrawn by 8 a.m., before the
issuance of the order, and the mine did not return to full production until May 16, 1997. Both the
May 15 day shift and afternoon shift miners were advised by Conso] not to appear for work in
light of its prior voluntary idlement of the mine.
The present controlling authority for the issues at bar is Local Union I 261. District 22.
UMWA v. Consolidarion Coal Company. 11 FMSHRC 1609 (l989),Aff'd sub nom. Local Union
1261 v. FMSHRC. 917 F.2d 42 (D.C. Cir. 1990). As in the case at bar, the issue therein was
whether miners are entitled to compensation under the first and second sentences of Section Ill
when the mine operato'r has voluntarily closed the mine for safety reasons prior to the issuance of
an order described in Section 111 but where such an order is subsequently issued.
The Commission in that case, at 11 FMSHRC at 1613 - 1614, held as follows:
The meaning of the first two sentences of section 111 is clear. If a
specified withdrawal order has been issued, "all miners workim~ during the shift
when· such order was issued who are idled by such order'' are entitled to
·
compensation for the remainder of their shift. (Emphasis added). If the order is
not terminated prior to "the next workin~ shift, all miners on that shift who are
idled by such order" are entitled to compensation for up to four hours. (Emphasis
added). The language is in nowise qualified. Thus, to be entitled to shift
compensation, a miner must either be working during the shift when the specified
order was issued and have been idled by the order or, if the order is not terminated
prior to the next working shift, must be on the next workin~ shift.
Here, the preconditions for entitlement to shift compensation were not
met. At the time the order was issued, no miners were working nor had they been
since the previous evening at which time Consol had voluntarily withdrawn all
miners in order to guarantee their safety. Therefore, none of those for whom
compensation is claimed were "working during the shift when ... [the] order was
issued." Further, Consol advised miners on the other two shifts that "the mine is
idled until further notice." [Citation omitted]. Therefore, none of those for whom

751

compensation is claimed were on "the next workin2 shift." (Emphasis added.)
[Footnote omitted]. We therefore hold that the claimants, not having met these
plainly stated prerequisites, were not eligible to be compensated.
The Court of Appeals, on review, held that the Commission's interpretation limiting the
phrase "working during the shift," to miners actually working when the order is issued, was a
reasonable interpretation. Local Union 1261 , 917 F .2d at 4 7.
The Commission majority explained the rationale for its decision as follows :
Apart from the plain wording ofthe statute, there are also practical
considerations. A statute should not be construed in a way that is foreign to
common sense or its legislative purpose. Sutherland Statutory Construction §§
45.09, 45.12 (4th ed. 1985). As discussed, the Mine Act involves a balancing of
the interest of mine operators, and miners, with safety being the preeminent
concern. Section 2 of the Mine Act specifies at the outset that "the first priority
and concern of all in the coal or other mining industry must be the health and
safety of its most precious resource- the miner," and section 2(e) adds that "the
operators of such miners with the assistance of the miners have the primary
responsibility to prevent the existence of (unsafe and unhealthful} conditions and
practices in such mines." The Mine Act was not intended to remove from an
operator the right to withdraw miners from a mine for safety reasons. While
MSHA has the authority to order such withdrawal, it does not have that power
excl usi vel y.

*

*

*

* *

Thus, apart from the fact that no.miners were present in the m_ine when the
MSHA closure order was issued, it is apparent that the safety first edict of section
2 was observed conscientiously by the mine operator here and that it would be a
departure from the clear intent and purpose of the Mine Act to penalize the
operator for voluntarily idling miners for their own protection. To impose such
liability could conceivably encourage less conscientious operators in similar
circumstances to continue production, at risk to the miners, until the MSHA
inspectors arrived to issue a control order idling the miners. We do not believe
that the Mine Act was intended to stifle such safety conscious actions by
operators, as Consol took here. [Footnote omitted].
The purpose and scope of shift compensation can also be determined by
another important concern expressed by Congress in adopting section 111 in its
specific terms: insulating the mine inspector from any repercussions that might
arise from his withdrawing miners and temporarily depriving them of their
livelihood. A key passage from the Report of the Senate Committee setting forth

752

the rationale for the miners' compensation provision concludes by stating, "[t]his
provision will also remove any possible inhibition of the inspector in the issuance
of closure orders." Leg. Hist. at 635. This convinces us that Congress intended
shift compensation rights to arise only when the physical removal of miners is
effectuated by the inspector himself so that the inspector in carrying out his
enforcement duties is not inhibited or distracted by workplace considerations
wholly extraneous to the protection of miners.
11 FMSHRC at 1614-15
Applicant argues, however that the instant case is distinguishable from the Local Union
1261 case in that here, it maintains, Consol attempted to avoid Section Ill liability by
withdrawing miners in anticipation of withdrawal action by MSHA. The Commission in that
case appeared to suggest that this might be a possible distinguishing factor. See Local Union
1261, fn6 at pp. 1614-1615. However, even assuming, arguendo, that this could be a
distinguishing factor, I find insufficient evidence that Consol withdrew the subject miners other
than for their safety and for compliance with the withdrawal requirements under 30 C.F.R. § 324.
On the facts of this case Consol could reasonably not have anticipated the issuance of an
imminent danger or other prerequisite withdrawal order. Indeed, the Secretary herself
subsequently vacated her withdrawal order in this case admitting that she had issued it in error,
presurhably for insufficient evidence.
As Consol notes in its brief, the air flow condition existing on the 7S longwall was not, in
any event, of such a nature as to lead management to anticipate a closure order involving any
area of the mine. While methane in excess of 1 percent required the section to be deenergized
and the condition corrected, there was no particular need to notify MSHA. Consol did in fact
deenergize the section and corrected the condition and, as evidenced by the absence of citations
for safety violations, the response was adequate.
Applicant also maintains that Consol was cognizant of a :ventilation problem on the 7S
section for two weeks prior to May 15, 1997, and should accordingly have anticipated an order
from MSHA. While there is evidence that the power had been taken off the longwall several
times in the two week period before May 14'\ due to methane, there is no evidence that Consol
was aware of any imminent danger or violative condition. Moreover, the reverse airflow
problem apparently was not discovered until May l41h. Safety Committeeman Michael Eddy
testified that he was not aware of any problem with reverse air flow in the longwall tailgate entry
before that afternoon. Moreover, Mine Superintendent Edward Pride believed that the reverse air
flow condition in the tailgate entry had not existed prior to the 14th because it was checked daily
by the mine foremen.
Applicant further maintains that even though Consol may not have had actual knowledge
that an MSHA inspector would visit the mine it nevertheless should have expected such a visit
when Safety Committeeman Michael Eddy, notified the foreman of the 7S longwall section in

753

the early hours of the May 14, afternoon shift, that he was exc~sing himself from work to go on
union business. However, since Eddy could have conducted any number of activities while on
"union business" it does not reasonably follow that an MSHA inspector would appear and issue a
withdrawal order. Morever, Consol did not thereafter immediately idle the mine well in advance
of the day shift as one would expect under Applicant's theory. Rather, Consol continued trying
to correct the condition on the 7S section during the afternoon shift of May 14, 1997, and into the
midnight shift on May 15, 1997. Applicant's proposed inference is therefore not reasonable nor
is there a rational connection between the evidentiary fact (that Eddy went on "union business")
and the ultimate fact to be inferred (that an MSHA inspector would thereafter appear and issue a
withdrawal order). Garden Creek Pocahontas Co., 11 FMSHRC 2148 (November 1989).
Under all the circumstances, I conclude that when Consol took the prudent action of
withdrawing the miners, which was also consistent with the requirements of 30 C.F .R. § 324, it
could reasonably not have anticipated the issuance of any withdrawal orders by the Secretary.
Therefore, within the framework of Commission precedent, supported by the U.S. Court of
Appeals for the D.C. Circuit, I conclude that the Applicant herein cannot prevail. Clearly, none
of the subject miqers were "working during the shift" within the scope of this legal interpretation
and there is insufficient evidence to conclude that Consol withdrew the subject miners in
anticipation of withdrawal action by the Secretary. The UMWA's reliance upon the earlier
Commission decision in Peabody Coal Company, 1 FMSHRC 1785 (1979) and the dissenting
Commissioners in Local Union 1261, is also misplaced. Indeed, ~he U.S. Court of Appeals for
the D.C. Circuit agreed with the dissenting commissioners in Local Union 1261, that the
majority had departed from the reasoning and result of Peabody Coal Company, 1 FMSHRC
1785 ( 1979), and had, therefore, effectively overruled that decision. In the earlier Peabody case,
the Commission had expressedly rejected the operator's argument that the Act provides first
sentence compensation only for miners actually at work when a withdrawal order issues. Local
Union 1261 , 917 F.2d at 46-47.
ORDER
Compensation Proceeding Docket No. WEV A 98-1 0-C is DISMISSED.

GliryMJ~
:~ve

Admini

754

Lat Judge

Distribution:
Richard Eddy, United Mine Workers of America (UMWA), District 31 , 310 Gaston Avenue,
Fairmont, WV 26554 (Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh,
PA 15241 (Certified Mail)
\mea

755

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

JUL 1 5 1998
SECRETARY OF LABOR,
MINE SAFETY AND .HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 97-154-M
A.C. No. 34-00026-05597

v.

BLUE CIRCLE, INCORPORATED,
Respondent

Docket No. CENT 97-155-M
A. C. No. 34-00026-05598
Docket No. CENT 97-156-M
A. C. No. 34-00026-05599
Docket No. CENT 97-157-M
A. C. No. 34-00026-05600
Docket No. CENT 97-158-M
A. C. No. 34-00026-05601
Tulsa Plant

DECISION ON REMAND APPROVING SETTLEMENT

Before:

. Judge Melick

These cases are before me upon petitions for assessment of civil penalty under Section
105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). Petitioner has filed a
motion to approve a settlement agreement and to dismiss the cases. Modification and vacation of
certain citations and a reduction in overall penalties to $8,848.00, have been proposed. I have
considered the representations and documentation submitted in these cases, and I conclude that
the proffered settlement is acceptable under the criteria set forth in Section 11 O(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that Respondent pay a penalty of$8,848.00, within 30 day of this order. ·

GaryMelic
Administra ·ve Law Judg

756

Distribution:

Mary K. Schopmeyer, Esq., Office of the Solicitor, U.S. Dept. of Labor, 525 South Griffin St.,
Suite 501, Dallas, TX 75202
Daniel J. Haupt, Conference & Litigation Representative, U.S. Dept. of Labor, Mine Safety and
Health Administration (MSHA), 11~0 Commerce St., Room 4C50~ Dallas, TX 75242
C. Gregory Ruffennach, Esq., 450 East 3rd Avenue, Durango, CO 81301
/mea

757

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

JUL .. 1 5 1998
SECRETARY OF LABOR,
MINE SAFETY ANP HEALTH
ADMINISTRATION (MSHA),
Petitioner

.. .

CIVIL PENALTY PROCEEDING
Docket No. VA 96-21-M
A. C. No. 44-00040-05559

v.
Eastern Ridge Lime Company, L P
EASTERN RIDGE LIME COMPANY, L P,
Respondent
DECISION ON REMAND
Before: Judge Weisberger
This matter is before me based on a remand order issued by the Commission on July 2,
1998, for further consideration consistent with the decision in the case issued by the United
States Court of Appeals for the Fourth Circuit (Eastern Ridge Lime, L P v. FMSHRC No. 971579 (41h Cir. April 13, 1998). In its decision, the Courts of Appeals remanded "for further fact
finding and analysis of the penalties to be assessed" (slip op. at 7).
In order to clarify my previous decision, (19 FMSHRC 398 (February 1997)), and upon
reconsideration, I find that, in assessing a penalty, and evaluating the level of gravity of the cited
violations, it i$ not necessary to make a specific finding of causation. The high level of gravity is
based on the fact that the violation contributed to a fatal roof fall. Further, in evaluating a
penalty, I place most weight on my finding that, for the reasons discussed in the original
decision, the level of Respondent' s negligence constituted aggravated conduct. Specifically, the
record establishes that Respondent repeatedly ignored the warnings of its workers regarding
observed unsafe conditions. Accordingly, I reiterate my initial findings regarding the penalty to
be assessed.
It is ORDERED the Respondent shall pay a total civil penalty of $85,000 for the
violations cited in Order No. 4289773 and Citation No. 4389772.

758

-

Distribution:
Yoora Kim, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Suite 420, Arlington, VA 22203 (Certified Mail)
'

Thomas B. Weaver, Esq., John F. Cowling, Esq., Armstrong, Teasdale, Schlafy & Davis, One
Metropolitan Square, Suite 2600, St. Louis, MO 63102-2740

dcp

759

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

'JUL 1·7 1998
INLAND STEEL MINING COMPANY,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. LAKE 98-4-RM
Citation No. 7809287; 9/5/97

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

Docket No. LAKE 98-5-RM
Citation No. 7809288, 9/9/97
Minorca Mine
Mine ID No. 21-02449

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 98-45-M-A
A.C. No. 21-02449-05611

V.

Minorca Mine
INLAND STEEL MINING COMPANY,
Respondent
DECISION
Appearances: L. Joseph Ferrara, Esq., Jackson & Kelly, Washington, D.C., for
Contestant/Respondent;
Christine M. Kasak, Esq., Office of the Solicitor, U.S. Department of Labor,
Chicago, Illinois, for Respondent/Petitioner.
Before:

Judge Hodgdon

These consolidated cases are before me on Notices of Contest and a Petition for
Assessment of Civil Penalty filed by Inland Steel Mining Company against the Secretary of
Labor, and by the Secretary, acting through her Mine Safety and Health Administration (MSHA),
against lnland Steel, respectively, 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 two citations alleging
violations of the Secretary's mandatory health and safety standards. The petition seeks a penalty
of$1,328.00 for the contested violations. For the reasons set forth.below, I vacate one citation,
modify and affirtn the other, and assess a penalty of$50.00.

760

Baclg:round
The Minorca Mine is an open pit, taconite' mine in St. Louis County, Minnesota,
operated by Inland Steel. On September 5, 1997, while conducting a semi-annual inspection of
the mine, MSHA Inspector Leon Mertesdorf issued two citations alleging violations of section
56.20011 of the Secretary's regulations, 30 C.F.R. § 56.20011 . Citation No. 7809287 alleges
that:
At the South side of the Plant Electric Shop, there was a
Service road that passed along said shop that was [a] travel route
from the Fines Crusher and other associated shops. There was a
Fifth Wheel Semi-Trailer used for storage parked at the said
location, South of the Plant Electric Shop, which was a hazard to
any vehicles traveling from the lower plant site. The said Trailer
front end was raised by placing blocks under the doiJy wheels. The
height of the trailer was 51 inches from the roadway/ground that
was graded up to the trailer. The hood of a pickup truck was
48 inches, and ~puld travel under the raised trailer. The trailer
supports/dollies were I 0 feet back from the end of the raised end of
the trailer, that was parked with the front facing South. The traffic
traveled from the South and curved toward the left/West. There
was no barricade or even a warning to prevent travel under [the]
raised trailer.
Citation 7809288 alleges that:
At the bottom floor of the Flux Plant of the Pellet Plant,
there was an Over-head Crane with a Repair Bay below that was
~ot barricaded while an employee was inspecting and working with
hand tools on the said over-head crane, and the hand tools could be
dropped upon persons below. The area was not barricaded or
warning placed at the entrance to said Service bay, to prevent
persons from entering below a hazardous condition that would alert
that person of conditions that were unaware to them.

1

"Taconite" is "[a] local term used in the Lake Superior iron-bearing district of
Minnesota for any bedded ferruginous chert or variously tinted jaspery rock, esp. one that
enclosed the Mesabi iron ores (granular hematite); an unleached iron formation containing
magnetite, hematite, siderite, and hydrous iron silicates (greenalite, minnesotaite, and
stilpnomelane). The term is specif. applied to this rock when the iron content, either banded or
disseminated, is a least 25%." American Geological Institute, Dictionary ofMining, Mineral,
and Related Terms 560 (2d ed. 1997) (DMMR1).

761

Section 56.20011 requires, in pertinent part, that: "Areas where health or safety hazards exist
that are not immediately obvious to employees shall be barricaded, or warning signs shall be
posted at all approaches."
A hearing was held on March 31, 1998, in Duluth, Minnesota. The parties also submitted
post-hearing briefs in the cases.

Findings of Fact and Conclusions ofLaw
Citation No. 7809287
Inspector Mertesdorf had been to the mine twice before the inspection in this case, once
for an accident investigation and in March 1997 for a previous semi-annual inspection. He
testified that as he drove up the road toward the trailer, "[e]verything looked different than I had
seen it before and I couldn't understand how I could have missed something like this before" in
March. (Tr. 37-38) He stated that the difference was that
[T]he trailer was higher and there was -- the road was graded off
entirely underneath the trailer and you couldn't find the road edge
like it normally was. There used to be a road edge where the, you
know, where a grader goes along the road. You'd leave a lip and
there was kind of a washout there before. And this is all graded
over.
(Tr. 38.) The inspector later explained that the edge or lip that he was referring·to was grader
windrow. 2 He contended that "the hazard would be to possibly run underneath [the trailer]."
(Tr. 40.)
The company's evidence indicated that the trailer had been in the same location since
1988 and there had not been any traffic incidents involving it. Mr. Gus Josephson, Inland's Staff
Safety and Environmental Engineer, further testified that the roadway up to and on either side of
the trailer was graded twice weekly and that any windrow resulting from the grading was not
intended to serve as a benn along the road. He contended that any hazard involving the trailer
was immediately obvious.
The issue in this citation is whether the hazard perceived by the inspector, driving
underneath the trailer, was "immediately obvious." The Commission has held that although
something may be "readily observable" and "very much in plain sight" the hazard associated
may not be obvious. American Materials Corp., 4 FMSHRC 415, 481 (March ~- However,

' ~8L

"Windrow" is a '~dge of soil pushed up by a grader or bulldozer." DMMRT at 628.
"Windrow" is incorrectly reported as "windroll" throughout the transcript.
2

762

this is not such a case. I conclude that any hazard involving the trailer, and particularly the
hazard of driving underneath it, is 'i mmediately obvious to someone approaching the trailer on
the frontage road.
The old saying that "a picture is wor;th a thousand words," applies to this citation. I base
my decision mainly on Respondent's Exhibit B-1, a picture ofthe scene. In the picture it is clear
that the trailer is not hidden from the roadway; anyone approaching it can see it from a long way
off. Nor does it appear· that the roadway goes under the trailer. The roadway plainly goes on
either side of it. Even if one were not concerned with driving under the trailer, one would still
stay clear of the trailer to avoid hitting it.
I find that the evidence strongly supports the Respondent's contention that any hazard
involving the trailer would be "immediately obvious" to employees and that, therefore, no
barricade or warning sign was required. Accordingly, I will vacate the citation.

Citation No. 7809288
In August 1997, Inland contracted with Lakehead Constructors to build a new overhead
flux mill crane in the Flux Plant. While the construction project was proceeding, Inland flagged
or blocked with tape all access ways to the work area. On the morning of September 9, 1997, the
employee performing the preshift inspection in the area noted that the entrances to the work area
were still blocked with tape at 7:30a.m . However, when the inspection party arrived at the area,
between 10:00 a.m. and 11 :00 a.m., the tape blocking one of the doors was no longer up, but was
found lying on the ground partially under the wheel of a basket-lift truck belonging to Lakehead.
A Lakehead employee was on the crane checking the tightness of the bolts with a torque wrench
at the time. Although there is no direct evidence as how the tape came down, it seems clear that
someone maneuvering the Lakehead truck had knocked it down.
Inland has stipulated that the citation sets out a violation of the Secretary's rules.
Nevertheless, it argues that the citation should be vacated because the Secretary abused her
discretion in issuing a citation to both Inland and the independent contractor. The company
maintains that the Secretary's failure to follow the guidelines set out in III MSHA Program
Policy Manual, Part 45, at 6 demonstrates this abuse of discretion. I do not agree and find that
the Secretary did not abuse her'discretion in this case. .
The Commission has recently s·wrunarized the law in this area, as follows:
The Commission and various courts have long recognized
that, under the Mine Act's scheme of strict liability, an operator,
although faultless itself, may be held liable for the acts of its
independent contractor. Bulk Transp. Services, Inc., 13 FMSHRC
1354, 1359-60 (September 1991); Cyprus Indus. Minerals Co. v.
FMSHRC, 664 F .2d 1116, 1119 (9th Cir. 1981 ). In instances of

763

multiple operators, the Secretary has "wide enforcement
discretion" and may proceed against an operator, independent
contractor, or both. Mingo Logan Coal Co., 19 FMSHRC 246,
249 (February 1997), affdper curiam, No. 97-1392 (4'11 Cir.
January 8, 1998); Conso/idalion Coal Co., 11 FMSHRC 1439,
1443 (August 1989). The Commission has determined that "its review of the Secretary's action in citing an operator is appropriate
to guar~ against abuse of discretion." W-P Coal Co., 16 FMSHRC
1407, 1411 (July 1994). A litigant seeking to establish an abuse of
discretion bears the heavy burden of establishing that there is no
evidence to support the Secretary's decision or that the decision is
based on an improper understanding of the law. Mingo Logan,
19 FMSHRC at 249-50 n.5.
The Commission has considered various factors in
determining whether an enforcement action constitutes an abuse of
the Secretary' s discretion, including the operator's day-to-day
involvement in the mine's operation (Mingo Logan, 19 FMSHRC
at 250, W-P, 16 FMSHRC at 1411 ), whether the operator is in the
best position to affect safety (Bulk, 13 FMSHRC at 1361) and
whether the enforcement action is consistent with the purpose and
policies of the Act (Old Ben Coal Co., 1 FMSHRC 1480, 1485
(October 1979)). In addition, the Commission has considered
whether any of the criteria of the Secretary's Guidelines for
proceeding against an operator have been satisfied. See, e.g., Bulk,
13 FMSHRC at 1360; Mingo Logan, 19 FMSHRC at 250. While
failure to satisfy the criteria is not fatal to an enforcement decision
(Mingo Logan, 19 FMSHRC at 250), the Commission has relied
upon satisfaction of the criteria in concluding that there was no
abuse (e.g., Bulk, 13 FMSHRC AT 1360).4

4

The Commission has repeatedly recognized that the Guidelines
are policy statements and not binding on the Secretary. Mingo
Logan, 19 FMSHRC at 250; D.H Blattner & Sons, Inc.,
18 FMSHRC 1580, 1586 (September 1996), appeal docketed,
No. 96-70877 (9m Cir. Oct. 21, 1996).

Extra Energy, Inc., 20 FMSHRC 1, 5-6 (January 1997).
In this case, Inland, not Lakehead, had assumed the responsibility for barricading the
entrances to the area where the crane was being installed, from the beginning. Having taken on
that responsibility, it follows that Inland should al~o be responsible for the violation when the

764

blocking ribbon came down. In addition, since the crane was being constructed in Inland's
building, Inland clearly was in the best position to affect safety by preventing access to the area
in which the crane was being erected. Furthermore, the barricades were clearly for the benefit of
Inland's employees who may have to walk through the area, not Lakehead's employees who
were already working in the blocked off area. Accordingly, I conclude that the Secretary
properly cited the operator for this violation.

Significant and-Substantial
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(1) ofthe Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015,2021 (December
1987)(approving Mathies criteria). Evaluation of the criteria is made in terms of "continued
normal mining operations." US Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).
The question of whether a particular violation is significant and substantial must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC l 007 (December 1987).
As in most cases, the issue here is whether the third criterion has been met, that is,
whether the violation contributed to a hazard which would be reasonably likely to result in an
injury. The inspeCtor testified that he found this violation to be S&S because he believed that the
employee tightening-the bolts on the crane could drop his torque wrench and it could hit
someone below.
In order for this to occlir, there would have to be a confluence of events which happened
simultaneously. First, someone would have to enter the area through the one door at which the
blocking ribbon had been knocked down. Second, the employee would have to drop the wrench.
Third, the person entering the area would have to be below the employee dropping the wrench.
Fourth, the wrench would have to hit the person below. The evidence indicates that one or two
Inland employees per shift were likely to be in the area. The evidence further establishes that the
job of"torquing" the bolts took about two hours and then work on the crane was complete.

765

Considering all of these factors, I conclude that it was not reasonably likely that an injury .
would occur in this situation. Accordingly, I will modify the citation to delete the "significant
and substantial, designation.
Ne~li~ence

The inspector determined that Inland's negligence for this violation was low because
"when [the Lakehead employee is] climbing about on a crane he should have also made sure that
this area was roped off below." (Tr. 67.) I agree that the contractor's employee should have
made sure that the area was blocked off. This is particularly true since he apparently was the one
who knocked down the tape in the first place. I disagree, however, with the inspector's
assessment of negligence. In view of the fact that Inland's preshift inspection had verified that
the tape was still in place and that the tape was not taken down by an Inland employee, I
conclude that Inland was not negligent at all in this instance and will modify the citation.

Civil Penalty Assessment
The Secretary has proposed a penalty of $309.00 for Citation No. 7809288. However, it
is the judge' s independent responsibility to determine the appropriate amount of penalty in
accordance with the six penalty criteria set out in section 110(i) ofthe Act, 30 U.S.C. § 820(i).
SellersburgStoneCo. v. FMSHRC, 736F.2d 1147,1151 (71hCir.1984); Wallace Brothers, Inc.,
18 FMSHRC 481,483-84 (April1996).
In connection with th~ criteria, the parties have stipulated that the "Minorca Mine worked
in excess of600,000 hours during the period January 1, 1996- December 31, 1996." (Jt. Ex. I.)
Therefore, I conclude that it is a large mine. The Assessed Violation Report indicates that 189
violations had occurred at the mine in the 2 years preceding these violations. (/d.) I find this to
be in the average range for a mine this size and, thus, it neither aggravates nor mitigates a
penalty. Inland did not present any evidence that a penalty would have an adverse effect on its
ability to remain in.business, so I conclude that it would not. I have already found that the
violation was not S&S, so its gravity is not serious, and I have already found that the company
was not negligent. The evidence indicates that the Respondent demonstrated good faith in
achieving rapid compliance after being informed of the violation. Taking all ofthese factors into
consideration, I conclude that a penalty of $50.00 is appropriate for this violation.

ORDER
Accordingly, Citation No. 7809287 in Docket Nos. LAKE 98-4-RM and
LAKE 98-45-M-A is VACATED and Docket No. LAKE 98-4-RM is DISMISSED~ and
Citation No. 7809288 in Docket Nos. LAKE 98-5-RM and LAKE 98-45-M-A is MODIFIED by
deleting the "significant and substantial" designation and reducing the level of negligence from
"low, to "none" and is AFFIRMED as modified. Inland Steel Mining Company is ORDERED

766

TO PAY a civil penalty of $50.00 within 30 days of the date of this decision. On receipt of
payment, Docket Nos. LAKE 98-5-RM and LAKE 98-45-M-A are DISMISSED.

J-1-Q~
T. Todd Hodgdon
Administrative Law Judge
Distribution:

L. Joseph Ferrara, Esq., Jackson& Kelly, 2401 PennsylvaniaAvenue, N.W., Suite400, Washington,
DC 2003 7 (Certified Mail)
Christine M. Kassak, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn
Street, 8th Floor, Chicago, IL 60604 (Certified Mail)

/fb

.

767

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

July 20, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION '(MSHA),
Petitioner
v.
HOOVER INCORPORATED,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. SE 98-49-M
A. C. No. 40-00053-05515

Murfreesboro Quarry & Mill

DECISION
Appearance:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Nashville, Tenne~see, on behalf of Petitioner;
Granville S. R. Bouldin, Jr., Esq., Bouldin & Bouldin, Murfreeesboro,
Tennessee, on behalf of Respondent.

Before:

Judge Melick

This case is before me upon the Petition for Civil Penalty filed by the Secretary of Labor
against Hoover, Incorporated (Hoover) pursuant to Section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801(e) et. seq., the "Act," seeking a civil penalty of$252.00,
for one violation of the mandatory standard at 30 C.F.R. § 56.7012.
The citatio~ at bar, Citation No. 4898682, alleges a "significant and substantial" violation
of the cited standard and charges as follows:
The Ingersoll Rand DM25 SP Drill, company #509009 was left unattended
while it was in operation. The drill operator was measuring the depth of holes
previously drilled and away from the drill cab. There was a front-end loader and
operator working below the bench where the drill was operating approximately 38
feet below. In [sic} event that the drill were to unexpectedly malfunction, and
since it was close to the edge of the bench, it could topple over and land where tl;le
loader was operating resulting in possibly a fatality. While in operation, drills
shall be attended at all times.
The cited standard, 30 C.F.R. § 56.7012, requires that "[w]hile in operation, drills shall be
attended at all times."

768

The subject mine is a surface limestone extraction and crushing operation. The limestone
is drilled and blasted. It is then loaded onto trucks and taken to the crusher. Mining is performed
by creating benches. According to Inspector E. G. Duarte, of the Department ofLabor's Mine
Safety and Health Administration (MSHA), the subject drill was operating on a bench in the
quarry area and the closest person to the drill was its operator who was measuring drill holes on
the bench 150 to 180 feet away. According to Duarte, the drill at this time was drilling the hole
closest to the edge of the 38 foot highwall and a front end loader was operating below the bench.
Duarte approached the drill operator and asked if anyone was at the drill. The drill operator
responded in the negative. Duarte did not observe anyone else on the bench at the time.
It is undisputed that photographs (Gov. Exhs. 3A through 3G) accurately depict the drill
at issue but in no way represent the location or conditions present at the time of the citation.
According to Duarte, the drill's operating controls are located inside its enclosed cab. In order to
reach the controls the operator in this case therefore would have had to walk or run 150 to 180
feet, open the cab door and climb into the cab. Within this framework of evidence I have no
difficulty in concluding that the cited drill was in operation while not attended within the
meaning of the cited standard.
Respondent appears to claim that the cited standard is unconstitutionally vague in that a
reasonably prudent person familiar with the factual circumstances surrounding the allegedly
hazardous condition, would not recognize a hazard warranting corrective action within the
purview of the regulation at issue. Alabama By-Products Corporation, 4 FMSHRC 2128, 21292130 (December 1982). However, even Respondent's superintendent, Kenneth Vanderpool,
acknowledged, in reference to attending the drill, that the drill operator "wouldn't have no
business" going as far as even 75 feet from an operating drill. Thus, even if there could be some
ambiguity in the application of this standard to other factual situations, there is no ambiguity in
its application to this Respondent on the fact of this case where the credible evidence shows that
the drill operator was 150 to 180 feet from the drill.

In reaching this conclusion, I have not disregarded the testimony of drill operator Nathan
Nickens that he was standing next to the dust collector within eight to ten feet of the drill when
inspector Duarte "appeared." This apparent conflict with Inspector Duarte's testimony may be
explained by the likelihood that Duarte observed Nickens before Nickens was aware of Duarte's
presence. In any event, I find the inspector's testimony to be the more credible in this regard. I
note on the face of the citation, which would have been prepared contemporaneously with his
observation of the violation, the inspector reported that the drill operator was in fact measuring
the holes previously drilled away from the cab. This is consistent with his testimony at hearing.
While it would have been more helpful if the inspector had reported the 150 to 180 foot distance
in his contemporaneous notes and had produced those notes at hearing I nevertheless attribute
greater weight to the inspector's observations corroborated to some extent by his
contemporaneous citation.

769

The Secretary also maintains that the violation was "significant and substantiaL" A
violation is properly designated as "significant and substantial" if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum
Co., 3 FMSHRC 822,825 (Aprill981). 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: (I) 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.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir.
1988), aff'g 9 FMSHRC 2015,2021 (December 1987) (approving Mathies
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 (US. 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. US. 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, 916-17 (June 1991).
On the facts of this case I do not find the Secretary has met the third element of the
Mathies formula. Duarte testified that he was concerned about the hazards of the drill toppling
over the edge of the 38 foot highwall onto the front end loader working below. According to
Duarte, there were two ways this could happen. .First, he maintained that if the drill steel hangs
in the hole, the drill"might possibly" jerk from the vibration and rotate over the edge of the
highwall. However, Duarte had no specific anecdotal evidence of such an event and the
Secretary failed to establish that he had the necessary qualifications to calculate the forces
necessary to move this multi-ton drill sufficient to rotate it over the edge of the highwall. Clearly
such a conclusion could only be reached based upon sophisticated computations and an
understanding of the principles of physics. Duarte's qualifications in this regard were not
established. Without having either specific anecdotal evidence or the expertise necessary for
making the requisite computations, I can give but little weight to the inspector's testimony. In
addition, Hoover safety director, Jeiry Rogers, testified that even if the drill steel would hang up,
it would not produce sufficient force to rotate a several-ton drill.

770

The second hazard Duarte described related to an incident wherein the ground on the
bench gave way and the drill operator, who was in the cab of the drill, was killed when the drill
toppled over the highwall. The Secretary 's position in this regard is irrational, however, since
non-compliance with her reading of the standard would place the drill operator in a safer position
outside of the cab. In the case of the illustrated fatality, compliance with the standard would
likely place the drill operator in a hazardous position inside the cab.
The Secretary also cites testimony of Respondent's witnesses to establish the gravity of
the violation. In particular, she cites the testimony of Respondent's witnesses that an unattended
drill can blow a hydraulic hose causing failure of the hydraulic system or causing the drill motor
to burn out. However, the Secretary failed to note that the same witness doubted "very seriously"
that a fire would result if the motor became overheated because there were "gauges on there that
would cause it to shut down." Considering the absence of credible evidence to support her
findings I must conclude that the Secretary has failed to sustain her burden of proving that the
violation was "significant and substantial" or of significant gravity.
The Secretary has failed to present evidence or argument regarding negligence and the
size of the operator, two other criteria under section llO(i) of the Act. Examination of the
operator's prior history of violations (Gov. Exh. No.2) does not show a serious pattern or any
prior violation of the standard at issue herein. The violation was abated, according to the
citation, when the drill operator returned to the drilJ cab. Under the circumstances, I find that a
civil penalty of $25.00, is appropriate for the violation at issue.

ORDER
Citation No. 4898682 is AFFIRMED and Hoover Incorporated is directed to pay a civil
penalty of$25.00, within 30 days ofthe date ofthis decision.

strative Law Ju ge

771

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)
Granville S.R. Bouldin, Jr., Esq., Bouldin & Bouldin, 122 North Church Street, P.O. Box 811,
Murfreesboro, 1N 37133-0811 (Certified Mail)

Mr. Jerry Rogers, Safety Superintend.ent, Hoover Incorporated, P.O. Box 1700, LaVergne, 1N
37086 (Certified Mail)
\mea

772

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

.JUL 2 7 1996
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEV A 98-27
A. C. No. 46-01433-04242

CONSOLIDATION COAL COMPANY,
Respondent

Loveridge No. 22 Mine

DECISION
Appearances:

Lynn A. Workley, Conference & Litigation Representative, U.S. Dept.
of Labor, Morgantown. West Virginia, on behalf of Petitioner;
Elizabeth S. Chamberlin, Esq., Consol Inc., Pittsburgh, Pennsylvania,
on behalf of Respondent.

Before:

Judge Melick

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor
against the Consolidation Coal Company (Consol) pursuant to Section I OS(d) of the Federal
Mine Safety and Health Act of 1977, 30 U .S.C. Section 801 et. seq., the "Act," seeking a civil
penalty of$596.00, for one violation, on September 10, 1997, of30 C.F.R. Section
75.323(b)(2)(ii). The general issue before me is whether Consol violated the cited standard as
alleged, and if so, what is the appropriate civil penalty to be asse_ssed considering the criteria
under Section 11 O(i) of the Act.
The citation at bar, Citation No. 3492989, as amended, alleges as follows:
In the number two bleeder entry off the number one entry of 4-Left, there
is an accUIIiulation of methane.· The No. 2 bleeder entry starts at station number
99 block of the 4-Left number one entry. When tested on the right side of the
continuous miner, 1.5% methane was found in a measurement greater than 12
inches from the roof, face and ribs. The section foreman was notified and Mr.
Pichardo did no [sic] remove the electrica1 power from the equipment in the
affected area in a timely manner.
The cited standard, 30 C.F.R. Section 75.323(b)(2), provides in relevant part as follows:
(2) When 1.5 percent or more methane is present in a working place or an

773

-

intake air course, including an air course in which a belt conveyor is located, or in
an area where mechanized mining equipment is being installed or removed (i) Everyone except those persons referred to in§ 104(c) ofthe Act shall
be withdrawn from the affected area; and
(ii) ... electrically powered equipment in the affected area shall be
disconnected at the power source.
Thomas May, Sr., is an experienced coal mine inspector for the Mine Safety and Health
Administration (MSHA) with additional industry experience and two years of college education.
On September 1, 1997, at about 8 a.m., he began his inspection at the Loveridge No. 22 Mine,
accompanied by Consol safety inspector Richard Moats and representative of miners, Carol
Liston. Later in the morning as they approached the No.2 entry, the mining crew withdrew the
continuous miner and began shutting down for lunch. May proceeded toward the face to check
the airflow and test for methane. To perform these tests in a tight space he had to move the
ventilation tubing. May detected 1.5% methane, again repositioned the ventilation tubing and
again detected 1.5% methane. May then informed Moats that he had encountered t .5% methane.
According to May, Moats then proceeded to the face and performed his own methane
check. He extended the ventilation tube and held it on his shoulder. May testified that he was
unable to see precisely where Moats obtained his methane reading because his view was
obstructed. He later testified that Moat's reading was not as close to the face as his own.
According to May, Moats then momentarily left the area and returned, telling Liston that he
needed a ventilation tube at the face. Sometime during the course of these events, Moats told
May that he had obtained a 1.3% methane reading. Moats then appeared to cut the power on the
miner. May saw however, that a light was still activated on the miner and told Moats that the
power should be cut at the power center. Moats purportedly responded that Pichardo, the section
foreman, would take care of it. Pichardo then appeared, took his own methane test and told May
that he had obtained a .9% methane reading. May maintains that he told Pichardo that he had
obtained a 1.5% reading and that he needed to cut the power at the power center. Pichardo then
immediately walked to the power center and cut the power.
Within this framework of credible evidence it is clear that there was a violation of the
cited standard when 1.5% methane was discovered by Inspector May at the face, an agent of the
operator was notified of this and yet power at the power center was not cut for a period of
approximately 15 minutes. While the violation may indeed have been caused by the inspector
himself when admittedly moving the ventilation tubing at the face, it is now well-established that
operators are liable for violations of the Act without regard to fault. Sewell Coal Co. v.
FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982); Allied Products Co., v. FMSHRC, 666 F.2d 890
(Sth Cir. 1982); Fort Scott Fertilizer-Culler, Inc., 17 FMSHRC 1112 (July 1995).

774

In reaching these conclusions, I have not disregarded the testimony ofConsol's
witnesses_, Moats, Pichardo and Richardson. Their testimony does not, however, negate the
existence of the violation. For example, Moats admits that he did not cut the power at the power
center when informed of the existence of 1.5% methane and only attempted to cut the power to
the continuous miner. However, Moats claims he tried to tell Pichardo to remove the power at
the power center but Pichardo, who is hard of hearing, apparently did not hear him. Moats also
promptly attempted to remove the methane by having additional tubing installed and, according
to Moats, the methane level was thereby reduced to 1.1%·within one to two minutes. The
testimony of Pichardo and Richardson also mitigates operator negligence and gravity. After
being informed of a potential problem, Pichardo checked the left side of the miner for methane
and obtained only a .9% reading. Pichardo also noted that accumulations of methane would
likely be on the left side since the ventilation tubing pulls the air out of the right side. In
addition, Pichardo testified that when Inspector May told him that he had obtained a 1.5%
methane reading afld wanted the power off, he in fact cut the power within two minutes - - the
time it took him to walk to the power center. Assistant Mine Superintendent Richardson
corroborated that once Richardson told Pichardo that he needed to remove the power at the
power center he did so.
In evaluating the evidence I conclude that the Secretary's evidence regarding the amount
9ftime between the inspector' s notification of the violative condition to the operator' s agent,
Richard Moats, and the action by Pichardo to cut the power at the power center is the more
credible. The inspector estimated that time to have been about 15 minutes. (Gov. Exh. No. 2,
Pg. 5). l do, however, credit the operator's testimony that the inspector had adjusted the
ventilation tubing before taking his methane tests, and that their own readings were below 1.5%.
Thus, Consol officials could reasonably have believed the inspector's readings were not valid
and that the methane level was actually below the 1.5% threshold set forth in the cited standard.
Their prompt efforts to obtain additional ventilation tubing to clear the methane should also be
considered in evaluating negligence. Nevertheless, it is clear that once methane at 1.5 % was
found and Consol was informed of this through its agent Richard Moats, the power should have
immediately been cut at its source.
The Secretary also maintains that the violation was "significant and substantial" and of
high gravity. 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
Wlderlying 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

775

(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), ~ 9
FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood tl;lat 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, 916-17 (June 1991).
On this issue, as with all issues, I am constrained by the evidence of record. In this
regard, I find the record evidence inadequate to establish the third element of the Mathies test.
Critical parts of the inspector's testimony in this regard were ambiguous and somewhat
confusing. Moreover, his use of the terms "possibly" and "possibilities" where the standard is
"reasonable likelihood" makes it impossible to meet the third element. See Amax Coal
Company, 18 FMSHRC 1355 (August 1996). His testimony on this issue was in part as follows:
The fact of having the methane accumulation in the face, the auxiliary fan
for one is still running. In changing the tube, when you increase the distance from
the face to the ventilation device from the end of the tubing, you also increase the
possibility of methane accumulation. You use the spad gun which can create a
spark. You're working with tubing that has dust in it. You're dragging the
tubing, carrying it up there, you get coal, rock inside the tubing. When you put it
on the existing tubing, that sucks it back into the fan. Possibilities of spark from
·
the fan itself.
Considering all ofthe criteria under Section 110(i) ofthe Act, I find that a civil penalty of
$100.00, is appropriate.

ORDER
Citation No. 3492989 is AFFIRMED without a "significant and substantial" designation
and the Consolidation Coal Company is directed to p~y a civil JX:nalty of $100.00 within 30 days
of the date of this decision.

i

I

776

Distribution:
Lynn A. Workley, Conference & Litigation Representative, U.S. Dept. of Labor, Mine Safety
and Health Administration (MSHA), 5012 Mountaineer Mall, Morgantown, WV 26505
(Certified Mail)
Elizabeth S. Chamberlin, Esq., Consol Inc., Consol Plaza, 1800 Washington Road, Pittsburgh,
PA 15241-1421 (Certified Mail)
\mea

777

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730KSTREET, N.W., 6™FLOOR
WASIDNGTON, D. C. 20006-3868
July 30,. 1998

CONTESTPROCEEDUNGS

BRAUNTEX MATERIALS,
INCORPORATED,
Contestant

Docket No. CENT 98-154-RM
Citation No. 4444397; 9/5/97
Docket No. CENT 98-155-RM
Citation No. 4444398; 11114/97

v.

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

Docket No. CENT 98-156-RM
Citation No. 4109013; 11114/97
Brauntex Materials
Mine ID 41-02743

ORDER OF DISMISSAL
Before:

Judge Merlin

The issue -presented for determination is whether these cases were timely filed.
The cases were received on June 9, 1998, by the Mine Safety and Health Administration
and forwarded to this Commission where they were received on June 10, 1998.
Citation No. 4444397 (Docket No. CENT 98-154 RM) was issued on September 5,
1997, under section 104(a) of the Mine Act, 30 U.S.C. § 814(a). It was modified on
November 14, 1997, and November 26, 1997. An order oftermination was issued on
April 12, 1998.
Citation No. 4444398 (Docket No. CENT 98-155-RM) was issued on November 14,
1997, under section 104(d)(l), 30 U.S.C. § 814(d)(l). It was modified on November 21,
November 26, December 4 and December 18, 1997. An order of termination was issued on
April12, 1998.
Citation No. 4109013 (Docket No. CENT 98-156-RM) was also issued on November 14, · ·
1997, under section 104(d)(1), supra. It was modified on November 21, November 26 and
December 18, 1997. An order oftermination was issued on April12, 1998.
778

Section 105(d) of the Act, 30 U.S.C. § 815(d), provides. that within 30 days of the receipt
thereof an operator may contest the issuance or modification of an order or citation.
The operator alleges that it received the termination orders on May 12, 1998, and argues
that a termination is the same as a modification for purposes of deciding timeliness. Under the
operator•s approach, its filing on June 9, 1998, fell on the 281h day.
The termination orders dated April12, 1998, contain the name of the individual upon
whom service was made. I take judicial notice that service is customarily made on the day the
citation or order is issued. Even if service had been by mail, it would not have taken 30 days,
absent some unusual circumstance. The operator has submitted nothing to support its claim that
it did not receive orders of the termination until May 12, 1998, and I, therefore reject it. On this
basis, I find these cases were untimely filed.
Moreover, even if the receipt date for the termination orders is accepted as May 12, the
operator cannot prevail. The operator attempts to treat terminations and modifications as though
they are interchangeable and in this way have the 30 days begin to run upon receipt of the
terminations. However, the Act makes clear that they are not the same. Section lOS(d) which as
already noted, gives operators the opportunity to contest citations/orders and modifications of
them, also gives a miner and miner representative the opportunity to contest the issuance,
modification or termination of an order. If modifications and terminations were the same, there
would be no need to separately identify terminations. Clearly, the Act does not give operators
the right to challenge terminations, whereas miners and their representatives are given that right.
Commission regulations follow the distinction between modifications and terminations.
29 C.F.R. § 2700.20.
Commission case law also makes clear that modifications and terminations are separate
and -distinct actions. In Nacco Mining Company, 11 FMSHRC 1231, (July 1989), the Commission expressly stated that a modification differs from a termination, explaining that termination
occurs when the Secretary determines that the cited condition has been abated. 11 FMSHRC at
1236. The Commission further said that depending on the nature of a modification, the substantive effect of the underlying enforcement action may or may not be changed, but that the
enforcement action remains in effect as modified. Id. Subsequently, in Wyoming Fuel Com~. 14 FMSHRC 1282 (Augtist 1992), the Commission reiterated that termination was merely
an administrative action used to indicate to an operator that it had successfully abated the cited
violation and was no longer subject to a potential withdrawal order for failure to abate under
section 104(b), 30 U.S.C. § 814(b). 14 FMSHRC at 1288.

In light of the foregoing, I conclude that the date of termination is not the date from
which the 30 day contest begins to run.

779

It is well established that contests by operators of citations and orders must be brought
within 30 days or be dismissed. Island Creek Coal Co. v. Mine Workers, 1 FMSHRC 989
{August 1979); Alexander Brothers, 1 MSHC 1760 (1979); Old Ben Coal Co., 1 MSHC 1330
(1975); Consolidation Coal Company, 1 MSHC 1029 (1972); M.A. Walker Co.. Inc., 19
FMSHRC 897 (May 1997); Asarco. Incorporated, 16 FMSHRC 1328 (June 1994); C and S Coal
Company, 16 FMSHRC 633 (March 1994); Diablo Coal Company, 15 FMSHRC 1605 (August
1993); Costain Coal Inc., 14 FMSHRC 1388 (August 1992); Prestige Coal Co., 13 FMSHRC 93
(January 1991); Big Horn Calcium, 12 FMSHRC 463 (March 1990); Rivco Dredging Comoration, 10 FMSHRC 889 {July 1988); Allentown Cement Company. Inc., 8 FMSHRC 1513
(October 1986); Industrial Resources. Inc., 7 FMSHRC 416 (March 1985); Amax Chemical
~. 4 FMSHRC 1161 (June 1982); See also, ICI Explosives USA. Inc., 16 FMSHRC 1794
(August 1994).
Accordingly, regardless of which termination date is used, these cases are untimely filed.
On this ground also they must be dismissed.
In light of the foregoing, it is ORDERED that these cases are DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Daniel Diaz, Jr., Esq., Plunkett & Gibson, Inc., P. 0. Box BH002, San Antonio, TX 78201
Stephen E. Irving, Esq., Office of the Solicitor, U.S . Department of Labor, 525 Griffin Street,
Suite 501, Dallas, TX 75202
/gl

]8 Q

'tru.s. GOVERME.NT PRINTING OFFICE: 1,. -43lrm/M407