NOVEMBER 1996

COMMISSION DECISIONS AND ORPERS
11-04-96 Consolidation Coal Company
11-22-96 Western Fuels-Utah, Inc.
11-27-96 Clyde Perry v. Phelps Dodge Morenci Inc.

WEVA 94-235-R
WEST 94-391-R
WEST 96-64-DM

Pg . 1903
Pg. 1912
Pg. 1918

LAKE 95-138-R

Pg. 1925

WEST
LAKE
LAKE
LAKE
LAKE
KENT

96-130-D
94-700-R
94-128
94-42
96-45-M
94-1005-R

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

1930
1937
1942
1946
1950
2029

EAJ 96-4
WEST 95-186-M
KENT 94-1077-R
LAKE 95-310

Pg.
Pg.
Pg.
Pg.

2033
2044
2067
2069

EAJ 96-5
WEST 95-434-M
WEST 95-434-M

Pg. 2073
Pg . 2077
Pg. 2079

ADMINISTRATIVE LAW JUDGE DECISIONS
11-01-96 Buck Creek Coal, Inc.
11-01-96 Sec. Labor on behalf of Arthur Olmstead
v. Knife River Coal Mining Co.
11-04-96 Buck Creek Coal, Inc.
11-06-96 Buck Creek Coal, Inc.
11-07-96 Buck Creek Coal, Inc .
11-19-96 Akzo Nobel Salt, Inc.
11-20-96 Bobby Joe Hensley/Day Branch Coal
11-21-96 James Ray employed by Leo Journagan
Construction
11-22-96 Hollow Contracting, Inc.
11-25-96 Day Branch Coal/Bobby Joe Hensley
11-25-96 Buck Creek Coal, Inc.
ADMINISTRATIVE LAW JUDGE ORDERS
11-14-96 Samuel J. McLaughlin
11-15-96 Newmont Gold Company
1 1 -29-96 Newmont Gold Company

i

NOVEMBER

1996

No cases were filed in which review was granted during the month of November

Review was denied in the following case during the month of November:
Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, Docket No.
SE 96-112-R.
(Judge Fauver, September 27, 1996)

ii

COMMISSION DECISIONS

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

November 4, 1996

CONSOLIDATION COAL COMPANY

v.

Docket No. WEV A 94-235-R

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

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1
DECISION
BY: Marks and Riley, Commissioners
This contest proceeding, arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), raises the question of whether
Consolidation Coal Company ("Consol") violated 30 C.F.R. § 75.342(b)(2) when the warning
light on its methane monitor was not visible to a person who could deenergize the longwall.2

1

Commissioner Holen participated in the consideration of this matter, but her term
expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2

Section 75.342, entitled "Methane monitors," provides in part:
(b)(l) When the methane concentration at any methane monitor
reaches 1.0 percent the monitor shall give a warning signal.
(2) The warning signal device of the methane monitor shall be
visible to a person who can deenergize the equipment on which the
monitor is mounted.
(c) The methane monitor shall ~utomatically deenergize the
machine on which it is mounted when-(1) The methane concentration at any methane monitor reaches 2.0
percent ....

1903

Administrative Law Judge Arthur J. Amchan detennined that Consol had not violated the
standard. 16 FMSHRC 1241 (June 1994) (ALJ). For the reasons that follow, we reverse and
remand.

I.
Factual and Procedural Background
Consol operates the Robinson Run No. 95 Mine, an underground coal mine in Harrison
County, West Virginia. On April 19, 1994, Virgil Brown, an inspector with the Department of
Labor's Mine Safety and Health Administration ("MSHA"), traveled to the 2-D longwall
headgate to observe nonnal operating conditions at the mine. 16 FMSHRC at 1241. Methane
sensors on the longwall were connected to a methane monitor attached to a master control box at
the headgate. Tr. 35, 163, 167-68; C. Exs. 5(c), 6(a). The methane monitor was set to remove
power from all equipment electrically connected to the longwall when methane was detected at
I percent. 3 16 FMSHRC at 1243. In order to reenergize the longwall, the headgate operator
manually reset the methane monitor and master control box. Id at 1243-44. In so doing, the
headgate operator would read signals on the monitor and master control box informing him that
the deenergization had been caused by the detection of methane. Id. at 1244.
Inspector Brown observed that the headgate operator, Bill Bowen, was shoveling a spill
near the tail piece of the conveyor belt, approximately 30 feet away from the methane monitor.
Id. at 1241-42. The inspector stood next to him and observed that the face of the methane
monitor was not visible. Tr. 27. Accordingly, he issued a citation pursuant to section 104(a) of
the Act, 30 U.S.C. § 814(a), alleging a violation of section 75.342(b)(2). 16 FMSHRC at 1242.
Consol contested the citation and the matter proceeded to an expedited hearing before
Judge Amchan. At the hearing, the Secretary moved to modify the citation to an order issued
pursuant to section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2), adding an allegation of
unwarrantable failure. Tr. 9-10.
The judge determined that Consol had complied with section 75.342(b)(2). 16 FMSHRC
at 1245-46. He reasoned that Consol's method of informing the headgate operator that methane
levels had reached 1 percent "provides equivalent protection to a warning light that is visible at
all times." Id. at 1245. The judge noted that, because Consol declined to file a petition for
modification under section lOl(c) of the Mine Act, 30 U.S.C. § 81 l(c), 4 he was constrained to
3

The methane monitors and face telephone system would not be deenergized. 16
FMSHRC at 1243.
4

Section 101 (c) of the Mine Act provides in part:
Upon petition by the operator ... , the Secretary may
modify the application of any mandatory safety standard to a ... ,

1904

determine whether the reference in section 75.342(b)(2) to "warning signal device" included a
mechanism by which longwall lights are extinguished, equipment stops, and the operator, by
going to the headgate control box, learns that the methane monitor has been tripped. Id. The
judge concluded that the phrase did encompass such a system, and that his interpretation was
consistent with the underlying purposes of the Act and did not compromise miner safety. Id. at
1245-46. He also noted that his interpretation was not inconsistent with the dictionary meaning
of "device." Id. at 1246. Accordingly, the judge vacated the citation.5 Id.
The Secretary filed a petition for discretionary review, challenging the judge's
determination, which the Commission granted.

II.
Disposition
The Secretary argues that the judge erred in finding that Consol did not violate section
75.342(b)(2). PDR at 2. 6 He asserts that evidence was undisputed that the warning signal device
on the methane monitor was not visible to a person who could deenergize the longwall. Id. at 2,
4-5. The Secretary contends that the judge in effect transformed the contest proceeding into a
petition for modification proceeding, thereby improperly circumventing the procedures set forth
in section I 0 I (c) of the Act. Id at 6-7. Consol responds that the judge properly found no
violation because its methane monitoring system satisfies the requirements and purpose of the
standard by providing a visual warning to the headgate operator through the deenergization of

mine if the Secretary determines that an alternative method of
achieving the result of such standard exists which will at all times
guarantee no less than the same measure of protection afforded the
miners of such mine by such standard ... . Upon receipt of such
petition the Secretary shall publish notice thereof ... and shall
cause such investigation to be made as he deems appropriate. Such
investigation shall provide an opportunity for a public
hearing . .. to enable the operator ... or other interested party to
present information relating to the modification of such standard.
Before granting any exception to a . . . standard, the findings of the
Secretary ... shall be made public .... The Secretary shall issue a
decision incorporating his findings of fact therein ....
30 U.S.C. § 811 (c).
5

Given his disposition, the judge did not reach the question of whether the citation
should be modified to a section I 04(d)(2) order.
6

Pursuant to Commission Procedural Rule 75(a), 29 C.F.R. § 2700.75(a), the Secretary
designated his petition for discretionary review as his brief.

1905

equipment, extinguishing of lights on the longwall, and the displays visible when the headgate
operator manually resets the methane monitor and master control box. C. Br. at 11, 14-15.
Consol further argues that it did not receive adequate notice of the Secretary' s interpretation and
that the Secretary failed to prove that its methane monitoring system was not the kind that a
reasonably prudent person would use to comply with the standard. Id. at 12-13.
Section 75.342(b) provides that a methane monitor must give a warning signal when the
concentration of methane at the monitor reaches 1 percent. 30 C.F.R. § 75.342(b)(l). The
warning signal device of the methane monitor must "be visible to a person who can deenergize
the equipment on which the monitor is mounted." 30 C.F.R. 75.342(b)(2). As noted by the
judge, "(t)hat person must then de-energize the equipment and take steps to reduce the methane
concentration pursuant to (30 C.F.R. §] 75.323(b)." 16 FMSHRC at 1242. Section 75.342(c)
requires that the methane monitor automatically deenergize the machine on which it is installed
at 2 percent methane.
Here, the evidence is undisputed that the warning signal device on Consol' s methane
monitor was not visible to the headgate operator at the time of the inspection. When Inspector
Brown stood next to the headgate operator, who was approximately 30 feet from the methane
monitor, he could not see the warning signal device. Tr. 26-27, 52. Inspector Brown and John
Burr, Consol's manager of electrical engineering, testified that a headgate operator, in the course
of his duties, would typically travel approximately 30 feet in either direction of the master control
box, on which the methane monitor was installed. Tr. 36-37, 49-53, 158-59. The inspector
estimated that the warning light would be visible to a person only within 15 to 20 feet of it. Tr.
52. Burr also acknowledged that the methane monitor could not be seen by the headgate operator
at all times. Tr. 203-04, 208-09. Thus, the warning signal device of Consol's methane monitor
was not visible to a person who could deenergize the longwall in violation of the clear
requirements of section 75.342(b)(2).
We reject Consol's argument that its methane monitoring system provided a visible
warning in compliance with the standard. The Secretary's regulatory scheme requires human
intervention when methane levels reach 1 percent and automatic deenergization of equipment at
2 percent methane. Consol has, in effect, eliminated the requirement for human intervention,
placing complete reliance on the methane monitor' s capability of automatically deenergizing the
longwall. While Consol's reliance on such a system may be justified, we are not the proper
agency to make that determination. Rather, section 101 (c) of the Mine Act requires that such a
determination be made by the Secretary through the modification process. Under that process, an
operator may petition the Secretary to modify a standard's application on the basis that "an
alternative method of achieving the result of such standard exists which will at all times
guarantee no less than the same measure of protection . . .." 30 U.S.C. § 81 l(c). The Secretary
must then publish notice of such petition, conduct an investigation, provide an opportunity for a
public hearing, publish proposed findings, and issue a decision disposing of the petition (see n.4).
We are adverse to circumventing the protections afforded by the Act's modification procedures.
See PennAllegh Coal Co., 3 FMSHRC 1392, 1398 (June 1981); Sewell Coal Co., 5 FMSHRC
2026, 2029 (December 1983).

1906

Moreover, we are unpersuaded by Consol's argument that it failed to receive adequate
notice that its methane monitoring system did not comply with the requirements of section
75.342(b)(2). As acknowledged by its witnesses, Consol received actual notice from MSHA
over the course of approximately one year preceding issuance of the citation that the warning
signal on its methane monitor must be visible to a person who could deenergize the equipment.
Tr. 212-13, 234-37. Inspector Brown testified that management had been informed in at least
seven meetings that Consol was required to have a visible alarm on the methane monitor and
that, if it did not, it would be cited under section 75.342. Tr. 39-40, 90-91.

rn.
Conclusion
For the foregoing reasons, we reverse the judge's determination that Consol did not
violate section 75.342(b)(2). We remand for consideration of the Secretary's motion to modify
the citation to a section 104(d)(2) order7 and for the assessment of a civil penalty.

Marc Lincoln Marks, Commissioner

~c.

e

James C. Riley, Commissioner

7

Consol's reasonable, good faith belief that the cited conduct was the safest method of
compliance with section 75.342(b)(2) is relevant to the determination of whether Consol's
violation had resulted from its unwarrantable failure to comply with the standard. See Utah
Power & Light Co., 12 FMSHRC 965, 972 (May 1990); Cyprus Plateau Mining Corp., 16
FMSHRC 1610, 1615 (August 1994).

1907

Chairman Jordan, dissenting:
I would affirm the judge 1 because, in my view, he correctly determined that Consolidation
Coal Company (Consol) complied with the requirements of 30 C.F.R. § 75.342(b)(2). The
standard in question provides that "the warning signal device of the methane monitor shall be
visible to a person who can deenergize the equipment on which the monitor is mounted." Consol
was cited because the MSHA inspector determined that the longwall headgate operator, who was
approximately 30 feet from the methane monitor, could not see the yellow light which flashes
when the methane concentration reaches 1 percent. 2 16 FMSHRC at 1242.
Although the headgate operator was not always in sight of the yellow light mounted on
the methane monitor, the judge found that Consol had nevertheless provided a "warning signal
device" that was visible to the headgate operator at all times. Id. at 1245-46. He held that the
deenergization of the machinery constituted an adequate visual signal under the standard. Id. at
1246.
Under Consol's system, the headgate operator is visually appraised of the fact that
methane has reached 1 percent, because th~ lighting on the longwall face and the longwall shield
goes out, and all the equipment electrically connected to the longwall automatically deenergizes
except for the methane monitors and face telephone system. Id. at 1243. At the moment this
occurs, the headgate operator might not know whether the shutdown was due to methane
concentration or a power outage. As the judge pointed out, however, this potential ambiguity is
removed when the operator goes to the master control box to try and re-energize the longwall.
Id. at 1246.

If methane caused the shutdown, the operator will see a computer display advising in
plain English that there has been a "methane monitor fault/' and the methane concentration will
be indicated by a digital display. Id. at 1244. In addition, the yellow warning light on the
monitor will be flashing and the solid red trip light and green "power on" light of the monitor
will be on. Id.
This can be compared to what the operator will observe upon arriving at the control box
after a general power loss. In that situation the control box will be dark, the computer display
will be blank and all the lights on the methane monitor will be off. Id. There will be no digital
display showing the methane concentration, and the main conveyer to the outside (which is not
electrically connected to the longwall) will have stopped. Id. In the case of a methane shutdown,
the conveyor is likely to continue operating. Id.

1

Because I affirm and find no violation, I do not address the Secretary's or my
colleagues' contention that the operator should have applied for a modification of the
requirement of the standard.
2

30 C.F.R. § 75.342(b)(l) requires that the methane monitor give a warning signal when
the methane concentration reaches l percent.

1908

The Secretary has not challenged the judge's finding that "if the methane monitor shuts
down the longwall, there is no way the operator can mistakenly believe that the power went off
for some other reason.... [A]s soon as he gets to the headgate control box, it will be readily
apparent to him whether the methane monitor tripped or the power went out." Id. Thus the
judge found, correctly in my view, that Consol provided a "warning signal device" by which the
longwall operator is visibly appraised when the methane concentration at any methane monitor
reaches I percent.
Despite the fact that the standard in question does not refer to any particular kind of
"warning signal device," the Secretary contends that only the small factory-installed methane
warning light located directly on the m·ethane monitor complies. The MSHA inspector's
testimony makes clear that this interpretation was the basis for the enforcement action:
[T]he condition [for which I issued the citation] was that
the Appalachian monitor has a warning light that is built in with
the monitor. That is the warning light for that methane monitor,
that little light on the unit. ... And the ... person who is supposed
to de-energize the machine ... if it would give a warning at one
percent was not in a position in his work area where he could
visually see that warning light.

... The warning signal device of the methane
monitor . .. [is] a light that comes on inside the unit. It's a yellow
warning light.
Tr. 30, 63.
Although the Secretary claims he is enforcing the "plain and unambiguous terms" of the
standard, PDR at 5, his crabbed interpretation of "warning signal device" is nowhere supported
by a reading of the Mine Act or the regulation. His insistence that a "visible warning device on
the methane monitor," id, must be a light is simply not discernible from the plain language of the
standard.
In cases where Congress' intent is clear, we must "give effect to the unambiguously
expressed intent of Congress." Chevron US.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-43 (1984). Unfortunately, the Mine Act provides us no guidance as to the
meaning of "warning signal device." When, as here, the statute is silent, we must determine
whether the agency interpretation of the regulation is reasonable and entitled to deference. Id.;
Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989). I proceed by noting
that the regulation refers only to the warning signal device of(not on) the methane monitor, and
in no way suggests that the warning device must be a light. Furthermore, the Secretary has not
cited any legislative history supporting his interpretation, nor has he articulated any safety policy

1909

effectuated by his limited application of the term " warning signal device."3 An interpretation that
narrowly restricts a standard beyond its plain meaning and claims no support in either the history
or safety-promoting purpose of the Act is not, in my view, a reasonable interpretation entitled to
deference.
Finally, my colleagues (but not the Secretary) claim that "[t]he Secretary's regulatory
scheme requires human intervention when methane levels reach 1 percent." Slip op. at 4. Since
the longwall operator is not "a person who can deenergize the equipment" after being visibly
appraised of the presence of methane, they view Consol' s warning signal device as violative of
section 75.342(b)(2).
The only reason the longwall operator will be unable to deenergize the equipment after
being warned of the presence of methane is that the equipment will already be deenergized.
There will be no necessity for the operator to turn it off because the equipment will automatically
shut down at 1 percent methane concentration. I cannot agree that because the longwall operator
will not need to shut down the equipment when the methane concentration reaches 1 percent,
Consol ' s warning signal device does not comply with section 75.342(b)4. Moreover, an
underlying premise of the current Act and its predecessor, the 1969 Coal Act, is that the risk of
explosion is reduced by eliminating ignition sources of methane. S. Rep. No. 411 , 91st Cong.,
1st Sess. 25 (1969), reprinted in Senate Subcommittee on Labor, Committee on Labor and Public
Welfare, 94th Cong., 1st Sess., Part I Legislative Hist01y of the Federal Coal Mine Health and
Safety Act of 1969, at 151 (1975). Accordingly, I decline to embrace an interpretation which
effectively requires equipment to remain energized when the methane concentration is between 1
and 2 percent so that human intervention can occur. 5

3

Indeed, during the trial, government counsel appeared to concede that the warning
procedure implemented by Consol provides as much or greater protection than the procedure the
Secretary claims is required by the standard. Tr. 260 ("The s·ystem devised for Robinson Run
reducing the methane monitor trip to one percent may be an inherently safer method than this
[regulation].").
4

Notably, the drafters of the regulation explained the requirement of the visible warning
as "allow[ing] the operator of the face equipment, or other person, to deenergize the equipment at
1.0 percent, if necessary ." 57 Fed. Reg. 20868, 20891 (1992) (emphasis added).
5

When methane reaches 2 percent, automatic deenergization is required under section
75.342(c).

1910

Distribution
Tana M. Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Elizabeth Chamberlin, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241

sgf

1911

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

November 22, 1996

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

Docket No. WEST 94-391 -R

WESTERN FUELS-UTAH, INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners•
DECISION
BY THE COMMISSION:
This contest proceeding, arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), raises the question of whether Western
Fuels-Utah, Inc. ("Western Fuels") violated 30 C.F.R. § 75.516-2(c) because additional
insulation had not been provided for a communication cable at the point where it crossed over
power cables.2 Administrative Law Judge Richard Manning concluded that Western Fuels

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Com.missioners has been designated to exercise the powers of
the Commission.
2

Section 75.516-2, entitled, "Communication wires and cables; installation; insulation;
support," provides:
(a) All communication wires shall be supported on
insulated hangars or insulated J-hooks.
(b) All communication cables shall be insulated ... , and
shall either be supported on insulated or uninsulated hangers or
J-hooks, ... or buried, or otherwise protected against mechanical

1912

violated the regulation. 17 FMSHRC 756 (May 1995) (ALJ). For the reasons that follow, we
affirm.

I.
Factual and Procedural Background
Western Fuels operates the Deserado Mine, an underground coal mine in Rio Blanco
County, Colorado. 17 FMSHRC at 756. On April 21, 1994, during an inspection of the mine,
Phillip Gibson, an inspector with the Department of Labor's Mine Safety and Health
Administration ("MSHA"), observed that a communication cable crossed over several power
cables in the belt conveyor entry of the 9th east longwall section.3 Id at 756-58.
The communication cable, which was suspended from the ceiling by J hooks and used 24
volts of DC electricity, was connected to a phone approximately 15 feet from where the two
circuits crossed. Id. at 757; Tr. 17-19, 49. The communication cable contained four shielded
conductors. 17 FMSHRC at 757.
The power cables were medium voltage power conductors, supplying approximately 995
volts of AC electricity"to the longwall shearing machine and associated equipment. Id.; Tr. 18.
They hung from cable carriers along a monorail, consisting of a long I-shaped bar, suspended
from the mine roof. 17 FMSHRC at 758; W. Ex. 4. The power cables contained three power
conductors, two ground conductors, and a conductor. for the ground fault monitor. 17 FMSHRC
at 758.
The communication cable and power cables were not damaged or worn, and were well
insulated and protected against damage by outer jackets. Id Inspector Gibson observed,

damage ....
(c) All communication wires and cables installed in track
entries shall, except when a communication cable is buried in
accordance with paragraph (b) of this section, be installed on the
side of the entry opposite to trolley wires and trolley feeder wires,
Additional insulation shall be provided for communication circuits
at points where they pass over or ~nder any power conductor.
(d) For purposes of this section, communication cable
means two or more insulated conductors covered by an additional
abrasion-resistant covering.
3

The parties disagreed as to whether the communication cable and the power cables were
in contact where they crossed. 17 FMSHRC at 758.

1913

however, that additional insulation had not been provided where the communication cable passed
over the power cables. Id. at 757; Tr. 17-19. Accordingly, he issued to Western Fuels a citation
alleging a violation of section 75.516-2(c). 17 FMSHRC at 756; G. Ex. 1.
Western Fuels contested the citation and the matter proceeded to hearing before Judge
Manning. Before the judge, Western Fuels did not dispute that the communication cable passed
over the power cables, or that additional insulation had not been provided at that location. 17
FMSHRC at 757. Rather, it argued that the reference to track entries in the first sentence of
section 75.516-2(c) limits the requirement for additional insulation in the second sentence to only
those communication cables installed in track entries. Id. at 759. Western Fuels asserted that it
did not violate the standard because the cited communication cable was not in a track entry. Id.
The Secretary interpreted the standard to require additional insulation at any point where
communication cables cross power conductors, regardless of their location. Id.
The judge determined that Western Fuels violated section 75.5 l6-2(c). Id. at 763. He
reasoned that the language of the standard was clear on its face and that the second sentence's
requirement for additional insulation applied to the condition cited by Inspector Gibson. Id. at
760. The judge rejected Western Fuels' argument that the provisions of section 75.516-2(c) were
only applicable to track entries, noting that the second sentence expressly required additional
insulation where communication circuits pass over or under "any power conductor." Id. He
explained that the placement of that sentence after the sentence addressing track entries did not
alter its meaning. Id. Because he found the standard clear, the judge determined that he did not
need to reach whether the Secretary's interpretation was entitled to deference. Id Accordingly,
the judge affirmed the citation. Id. at 763.
Western Fuels filed a petition for discretionary review, challenging the judge's
determination, which the Commission granted.

II.
Disposition
Western Fuels argues that the judge erred in rejecting its argument that the two sentences
of section 7 5 .516-2(c) must be read together to require additional insulation only for
communication cables that cross power cables in track entries. W. Br. at 9-17. It also asserts
that the judge acknowledged the Secretary's interpretation of the standard would divert resources
from more serious hazards, and that the judge erred in placing responsibility for correcting the
regulation on the Secretary. Id. at 17-20. Petitioner explains that the judge has "discretion in
correcting errors by ... [an] agency," and that the ')udge should not slavishly accept" the
agency's interpretation. Id. at 17. The Secretary responds that the judge's interpretation is
supported by the clear language of the standard. S. Br. at 8-9. The Secretary also submits that
his interpretation of the standard is reasonable and entitled to deference. Id. at 6-8.

1914

The Commission has recognized 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. Consolidation Coal Co., 18 FMSHRC 1541,
1545 (September 1996) (citations omitted). It is only when the plain meaning is doubtful or
ambiguous that the issue of deference to the Secretary's interpretation arises. See Pfizer Inc., v.
Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) (deference is considered "only when the plain
meaning of the rule itself is doubtful or ambiguous") (emphasis in original). We agree with the
judge that the language of section 75.516-2(c) is clear and, accordingly, we do not reach the issue
of deference.
The first sentence of section 75.516-2(c) requires that "[a]ll communication wires and
cables installed in track entries ... be installed on the side of the entry opposite to trolley wires
and trolley feeder wires." 30 C.F.R. § 75.516-2(c). The second sentence provides that
"[a]dditional insulation shall be provided for communication circuits at points where they pass
over or under any power conductor." 30 C.F.R. § 75.516-2(c) (emphasis added). Thus, the
second sentence, considered separately, clearly requires additional insulation at the location
where Western Fuels' communication cable crossed over its power cables.
Contrary to Western Fuels' assertions, the requirement for additional insulation is not
altered when the second"sentence of the subsection is read within its context. The first and
second sentences of section 75.516-2(c) address separate and distinct requirements. The first
sentence of the subsection relates to the required location of communication wires and cables in
track entries while the second sentence sets forth a requirement for additional insulation for
communication circuits at points where they pass over or under any power conductor. The
second sentence makes no cross-reference to the first sentence. Moreover, the language of the
second sentence is expressly broad, requiring additional insulation where a communication cable
crosses "any power conductor." 30 C.F.R. § 75.5 16-2(c) (emphasis added).
Furthermore, reading the second sentence to require additional insulation for
communication cables that cross any power conductor, regardless of whether the cables are
located in track entries, is consistent with an interpretation of section 75.516-2 as a whole. See
Morton Jnt'l, Inc., 18 FMSHRC 533, 536 (April 1996) (citations omitted) (regulations should be
read as a whole, giving comprehensive, harmonious meaning to all provisions). The title of the
standard, "Communication wires and cables; installation; insulation; support," is worded broadly,
suggesting application of the standard's requirements to all communication cables. None of the
sentences in the standard, except the first sentence of subsection (c), speak to track entries or
trolley wires and, as noted, application of the additional insulation requirement in the second
sentence of subsection (c) is expressly broad.
Finally, we reject Western Fuels' argument that the judge erred in accepting the
Secretary's interpretation after acknowledging that such an interpretation would divert resources
from more serious hazards. W. Br. at 17-20. The judge explicitly declined to reach whether the
Secretary's interpretation was entitled to deference but, rather, construed the standard in

1915

accordance with its plain language. 17 FMSHRC at 760. In any event, we find no error in the
judge's conclusion that the question of the relative costs and gains of enforcing the standard was
beyond his authority and more appropriately addressed to MSHA's Assistant Secretary. Id. at
762-63. The Mine Act confers enforcement authority upon the Secretary, rather than upon the
Commission. Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996), citing Thunder
Basin Coal Co. v. Reich, 510 U.S. _ , 127 L. Ed. 2d 29, 36, 40 (1994).

III.
Conclusion
For the foregoing reasons, we affirm the judge's determination that Western Fuels
violated sectioa 75.516-2(c).

Marc Lincoln Marks, Commissioner

1916

•

Distribution

Karl F. Anuta, Esq.
P.O. Box 1001
1720 l 4 1h Street
Boulder, CO 80306
Jerald Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

jhe

1917

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

November 27, 1996

CLYDE PERRY
v.

Docket No. WEST 96-64-DM

PHELPS DODGE MORENCI, INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners'
ORDER
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On April 26, 1996, former Commission
Administrative Law Judge Arthur Amchan granted the motion to dismiss of Phelps Dodge
Morenci, Inc. ("Phelps Dodge"), concluding that complainant Clyde Perry failed "to state a claim
upon which relief may be granted" under section 105(c) of the Mine Act, 30 U.S.C. § 815(c). 18
FMSHRC 643, 646-47 (April 1996) (ALJ). The Commission granted Perry's petition for
discretionary review. For the reasons that follow, we vacate the judge's dismissal order and
remand for further _proceedings.

I.
Factual and Procedural Background
On February 16, 1993, Perry injured his right foot at Phelps Dodge's Morenci Branch
Mine. 18 FMSHRC at 643. When he returned to work a month later, he was assigned "light
duty" work. Id. During October 1993, Perry began working as a truck driver. Id. After driving
trucks for several months, Perry asked to be reassigned to other work because his foot injury was
interfering with his ability to operate a truck by causing him pain in his foot, back, and knee. Id.
He was not reassigned. Id.

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

1918

At some point, Perry complained to his superiors at Phelps Dodge that it was unsafe for
him to operate heavy equipment because of his medical condition, after which Perry was
harassed continually. Comp!. at 1; Am. Comp!. at 1.2 During the early morning hours of January
28, 1995, Perry experienced chest pains while working the graveyard shift. Comp!. at 4. He
went to the hospital, but could not be treated because he was unable to produce a urine specimen
which a doctor requested after Perry told him he (Perry) was taking an over-the-counter
medicine. Id. Perry subsequently tested negative for drugs and alcohol based on the results of a
test performed that evening. Id. at 7. On February 3, 1995, Perry was fired "pending
arbitration." Perry Br. at 3. Apparently he was fired because, according to Phelps Dodge, he
tested positive for drugs or alcohol after being in an area where an accident occurred. Com pl. at
8.
Perry filed a discrimination complaint with the Department of Labor's Mine Safety and
Health Administration ("MSHA") on September 14, 1995. On November 6, MSHA notified
Perry that, in the agency ' s opinion, Phelps Dodge had not violated section 105(c) of the Mine Act
in its treatment of Perry. 18 FMSHRC at 644. On November 17, Perry filed a complaint with
the Commission under section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3). Id.; Compl. at
2. In its answer, filed on February 20, 1996, Phelps Dodge moved that Perry be ordered to
provide a more definite statement of his claim. 18 FMSHRC at 644. The judge granted Phelps
Dodge's motion and ordered Perry to provide a more definite statement of his claim, including a
description of his protected activities and when they occurred, the basis for his belief that Phelps
Dodge discriminated against him, the nature of the alleged discrimination and when it occurred,
and the relief he sought. Id.; Order to Show Cause and To Provide a More Definite Statement
(February 29, 1996). Perry filed his amended complaint on March 22, 1996. Phelps Dodge
replied to the amended complaint on April 25, 1996, and included in its reply a motion to dismiss
on the grounds that Perry failed to properly allege that he had engaged in any protected activity,
and that he failed to file his complaint within the 60-day limit set forth in section 105(c).
The judge dismissed Perry's complaint in an order dated April 26, 1996. 18 FMSHRC at
647. Without citing Rule 12(b)(6) of the Federal Rules of Civil Procedure, but using its
terminology, the judge dismissed Perry's for failure to state a claim upon which relief may be

2

Because this case is before us on an appeal of an order entered pursuant to a motion to
dismiss, Perry's allegations are treated as true. Goffv. Youghiogheny & Ohio Coal Co. ,
7 FMSHRC 1776, 1777 (November 1985). Perry's complaint consists of a cover note, a copy of
MSHA's letter to Perry regarding its investigation of his complaint, a copy of Perry's original
complaint to MSHA, and a note sent to Phelps Dodge informing it that a complaint had been
filed. Perry's amended complaint consists of a cover letter, a statement in support of claim, and
several attachments. Page references to the complaint and amended complaint are to the
documents assembled in the order above.

1919

granted. 3 Id. The judge found that Perry had "not alleged that he engaged in any activities
protected by the [Mine] Act," and that being injured on the job, inability to perform one's tasks,
and refusal to take a drug test or testing positive are not protected activities. Id. at 646. The
judge also found that Phelps Dodge did not violate section I 05(c) when it declined to provide
Perry alternative employment after he complained that his continued operation of a truck in his
condition posed a threat to himself and others. Id.

II.
Disposition
Appearing pro se, Perry alleges that Phelps Dodge "retaliated against me because I gave
them a lost time accident and, also, for filing a complaint under i.he [Mine] Act." Perry Br. at 2.
He asserts that, on February 16, 1993, he was seriously injured and, thereafter, complained that it
was unsafe for him to operate heavy equipment because of his medical condition. id. at 2-3.
Although he resumed his duties as a truck driver, "[e ]ver since my accident and the complaint I
made, I've been harassed, discriminated against, and almost terminated." Id. at 3. Perry further
asserts that on January 28, 1995, he was discharged pending investigation following an anxiety
attack at work and his subsequent inability to produce a urine sample for drug and alcohol
testing. Id. He states that on February 3, 1995, he was discharged pending arbitration. Id.
Phelps Dodge asserts that the judge properly dismissed the complaint because Perry failed to
allege that he engaged in protected activity and that, in addition, he failed to file his complaint
within the time limit imposed by section 105(c). P.D. Br. at 4-6.
A.

The Judge's 12(b)(6) Ruling

It is well settled that "[t]he motion to dismiss for failure to state a claim is viewed with
disfavor and is rarely granted." SA Wright & Miller, Federal Practice & Procedure: Civil § 1357
(2d ed. 1990). The Supreme Court has held that "a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957). Additionally, we hold the pleadings of prose litigants to less stringent standards than
pleadings drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRe 1269, 1273 (August 1992)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). In cases brought by prose complainants,
motions to dismiss for failure to state a claim should rarely be granted. Instead, in such a case, a
judge should ensure that he informs himself of all the available facts relevant to his decision,
including the complainant's version of those facts. Heckler v. Campbell, 461 U.S. 458, 470-73
(1983) (Brennan, J., concurring).

3

Rule 1(b) of the Commission's Procedural Rules provides: "On any procedural
question not regulated by [these] Rules .. . the Commission and its Judges shall be guided so far
as practicable by the Federal Rules of Civil Procedure ... " 29 C.F.R. § 2700.l(b).

1920

Here, Perry was obligated to provide the Commission with "a short and plain statement of
the facts, setting forth the alleged ... discrimination ... and a statement of the relief requested."
29 C.F .R. § 2700.42. This he did. The judge's finding that Perry failed to allege that he engaged
in any protected activity is erroneous. Perry alleged that he complained to Phelps Dodge that,
because of medical problems arising from an earlier on-the-job accident, his operation of a truck
posed a safety hazard to himself and others. Am. Comp!. at 1. Such complaints are activities
protected under the Mine Act. Smith v. Kem Coal Co., 14 FMSHRC 67, 71(January1992); c:f
Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 1417 (June 1984) ("a miner may refuse to
work on the basis of a perceived hazard arising from his own physical condition or limitations").
Perry also alleged that after he complained, he was continually harassed and ultimately fired on
grounds that were "made up" by Phelps Dodge. Comp!. at l. According to Perry, Phelps Dodge
actually fired him because of his complaints "that it [was] unsafe operating heavy equipment
under [his] condition." Id. Additionally, Perry alleged that when he compiained, Phelps Dodge
refused to give him light duty work such as he was given after his earlier injury, despite the fact
that others similarly situated were routinely assigned such duty. Id. at 4.
When the judge ordered Perry to provide the basis for his belief that Phelps Dodge
discriminated against him, he essentially required Perry to begin proving his prima facie case at a
stage in the proceedings when Perry was simply obligated to meet the Commission's minimal
pleading requirements. See Secretary ofLabor on behalfofPasula v. Consolidation Coal Co., 2
FMSHRC 2786 (October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981), and
Secretary ofLabor on behalfof Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April
1981) (a miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by proving that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity). To go beyond the pleading
requirements of Rule 42 at so early a stage in a case is particularly inappropriate in view of the
complainant's burden to establish discriminatory motive. We have often acknowledged the
difficulty of establishing a motivational nexus between protected activity and the adverse action
that is the subject of the complaint. Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 530 (April
1991), and cases cited therein.
This case demonstrates the difficulty of establishing all the relevant facts strictly on the
basis of a prose complainant's pleadings. But on the record before us, Perry has more than met
his burden of alleging discrimination actionable under section 105(c). Accordingly;we vacate
the judge's dismissal order and remand the case for further evidentiary proceedings.
B.

The Timeliness of Peny's Complaint

We find unpersuasive Phelps Dodge's argument that Perry's complaint should be
dismissed because it was filed at least seven and a half months beyond the time limit set forth in
section 105(c). Section 105(c) provides that a discrimination complaint may be filed "within 60
days after [a] violation occurs." A miner's late filing of a discrimination complaint may be
excused on the basis of justifiable circumstances, including ignorance, mistake, inadvertence, and

1921

excusable neglect. Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 12-13 (January 1984); Farmer v.
Island Creek Coal Co., 13 FMSHRC 1226, 1230-31 (August 1991 ). Even if there is an adequate
excuse for late filing, a serious delay causing legal prejudice to the respondent may require
dismissal. Secretary of Labor on beha(fof Hale v. 4-A Coal Co., 9 FMSHRC 905, 908 (June
1986). In general, timeliness questions must be resolved on a case-by-case basis, taking into
account the unique circumstances of each situation. Hollis '" Consolidation Coal Co., 6
FMSHRC 21, 24 (Janua1y 1984), a.ff'd mem., 750 F.2d 1093 (D.C. Cir. 1984).
Here, on the question of timeliness, Perry never responded to Phelps Dodge's allegations.
In this respect, the case presents a question analogous to one we addressed in Farmer v. Island
Creek (a case also involving a prose claimant), where we stated:
Given complainants' silence below in the face of the operator's
motion to dismiss, this case arrives at the Commission in virtually
the same posture as a default. As in any default case, the defaulted
party has failed to speak at some crucial juncture.
13 FMSHRC at 123 2. After noting "a pro se party's general lack of understanding of appropriate
Mine Act and Commission procedure," we held:

We conclude that good cause [for the complainant's delay]
has been shown to the extent that, in the interests of justice, the
matter should be remanded to the judge so that complainants'
explanations can be placed before him for his resolution. At that
time, the operator will have the opportunity to present evidence of
the material legal prejudice, if any, resulting from such delay.

Id. Following the Commission's reasoning in Farmer, we remand this matter for the additional
purpose of allowing the judge to determine in the first instance whether appropriate
circumstances exist to excuse Perry's allegedly late filing of his discrimination complaint.4

4

Given our disposition, we deny Phelps Dodge's motion for a more definite statement
and its motion to dismiss

1922

III.
Conclusion
For all of the foregoing reasons, we vacate the judge's dismissal order and remand this
matter to the Chief Administrative Law Judge for assignment to a judge for further evidentiary
proceedings consistent with this opinion.5

Marc Lincoln Marks, Commissioner

5

Judge Amchan has since transferred to another agency.

1923

Distribution

Clyde Perry
P.O. Box 291
Morenci, AZ
Laura E. Beverage, Esq.
Jackson & Kelly
1660 Lincoln Street
Suite 2710
Denver, CO 80265
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, Suite 6002
Washington, D.C. 20006

1924

ADMINISTRATIVE LAW JUDGE DECISIONS

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

November 1 , 1996
BUCK CREEK COAL, INC.,
Contestant

CONTEST PROCEEDING
Docket No. LAKE 95-138-R
Citation No. 4259597; 11/21/94

v.

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

Buck Creek Mine
Mine ID 12-02033

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

CIVIL PENALTY PROCEEDING
Docket No . LAKE 95-185
A.C. No. 12-02033-03661

v.

Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDING
Docket No. LAKE 171-R
Citation No. 4259500; 12/8/94

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

Buck Creek Mine
Mine ID 12-02033 ·

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

CIVIL PENALTY PROCEEDING
Docket NO . LAKE 95-206
A. C. No. 12-02033-03662

v.

Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondant
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No . LAKE 95-33-R
Citation No. 4262565; 10/5/94

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

Docket No. LAKE 95-34-R
Citation No. 4262566; 10/5/94

1925

Docket No. LAKE 95-36-R
Citation No. 4260185; 10/5/94
Docket No. LAKE 95-40-R
Citation No. 4260189; 10/6/94
Docket No. LAKE 95-41-R
Citation No. 4260190; 10/5/94
Docket No. LAKE 95-42-R
Citation No. 4260191; 10/5/94
Buck Creek Mine
Mine ID 12-02033
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-214
A.C. No. 12-02033-03663
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
I

CONTEST PROCEEDINGS
Docket No. LAKE 95-5-R
Citation No. 4262139; 9/20/94
Docket No. LAKE 95-62-R
Citation No. 4260205; 10/7/94
Buck Creek Mine
Mine ID 12-02033

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
BUCK CREEK COAL, INC.,
Respondent

CIVIL PENALTY PROCEEDING
Docket NO. LAKE 95-215
A.C. No. 12-02033-03665
Buck Creek Mine

DEFAULT DECISION

Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal, Inc., and Petitions for Assessment of. Civil
Penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Buck Creek Coal,

1926

Inc., pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petitions allege 28
violations of the Secretary's mandatory health and s~fety
standards and seek penalties of $50,364.00. For the reasons. set
forth bel ow, I find the company in default, affirm the orders and
citat~ons, a nd assess penalties of $50,364.00.
These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The cr~minal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them . Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default, without the
iaauance of a prior Order to Show Cause."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company's bankruptcy counsel. Return Receipt Cards have be~n
received from all three indicating that the order was. r.ecei ved on
either July 31 or August 1 .

1

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases . However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved.

1927

On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U.S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995 ) ; Secretary
of Labor on behalf of Price v . Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).
Commission Rule 59, 29 C.F.R. § 2700.59, states that " [i)f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . . . " Commission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that "[w]hen a party
fails to comply with an order of a Judge . . . an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.
ORDIR

Based on the above, I find the Respondent, Buck Creek Coal
Inc., in default in these cases. · Accordingly, Citation Nos.
4259597, 4259566, 4259545, 4259664, 4259665, 4259666 and 4259667 ·
in Docket Nos. LAKE 95-138-R and LAKE 95-185, Order No. 4260193
and Citation No. 4259500 in Docket Nos. LAKE 95-171-R and LAKE
95-206, Order Nos. 4260185, 4260190, 4260191, 4262565, 4262566,
4260189 and 4260207 and Citation Nos. 4259701, 4259702, and
4259703 in Docket Nos. LAKE 95-33-R, LAKE 95-34-R, LAKE 95-36-R,
LAKE 95-40-R, LAKE 95-41-R, LAKE 95-42-R and LAKE 95-214, and

1928

Order No. 4262139 and Citation Nos. 4260205, 4259679, 4259680,
4262681, 4262682, 4262683, 4262684, and 4262685 in Docket Nos.
LAKE 95-5-R, LAKE 95-62-R and LAKE 95-215 are AFFIRMED. Buck
Creek Coal Inc., or its successor, 2 is ORDERED TO PAY civil
penalties of $50,364.00 within 30 days of the date of this
decis~on.
On receipt of payment, these proceedings are
DISMISSED.

d~

T. Todd Hod on
Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., Office 6f the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Chuck · Shultise, President, Buck Creek Coal Co., Inc., RRS,
Box 203, Sullivan, IN 47882 (Certified Mail)
Mr. Randall Hammond, Superintendent, Buck Creek Coal Co., Inc.,
2156 S. County Rd., 50 West St., Sullivan, IN 47882 {Certified
Mail)
Terry G. Farmer, Esq., Bamberger, Foreman, Oswald, & Hahn,
708 Hulman Bldg., P.O. Box 657, Evansville, IN 47704 {Certified
Mail)
/lt

2

According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

1929

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

NOV 1 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
BEHALF OF ARTHUR R. OLMSTEAD,
Complainant

DISCRIMINATION PROCEEDING
Docket Nos. WEST 96-130-D
DENV CD 95-20
Savage Mine
Mine ID 24-00106

v.

KNIFE RIVER COAL MINING CO.,
Respondent
StlPPl&"!"TAL DECISION
Alm
FINAL QRDER

Appearances:

Tambra Leonard, Esq . , Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Complainant;
Laura E. Beverage, Esq., and Rebecca Graves Payne,
Esq., Jackson & Kelly, Denver, Colorado, for
Respondent.

Before:

Judge Hodgdon

On June 28, 1996, a decision was issued in this proceeding
determining that the Respondent had discriminated against the
Complainant by discharging him in violation of section 105(c) of
the Federal Mine Safety Act of 1977, 30 U.S.C. § 815(c).
Secretary on behalf of Olmstead v. Knife River Coa'l Mining Co.,

18 FMSHRC 1103 (June 1996 ) . The parties were given 30 days to
agree on the specific relief due Mr. Olmstead or to submit their
separate relief proposals with supporting arguments.
The parties have made various submissions and participated
in several telephone conference calls with the judge. However ,
they have been unable to agree on all of the remedies to which
Mr. Olmstead is entitled. Consequently, this decision and order
includes both remedies upon which the parties agree and those on
which they do not.

1930

Reinstatement

In accordance with the June 28 decision, Mr . Olmstead was
reinstated to his Tipple Operator's position on July 15 , 1996.
However, the parties have agreed that he would have been awarded
a Loader Operator position as of August 28, 1995 , had he been
working at the time. Consequently, after performing a trial
period in that position, he was assigned as a Loader Operator on
September 16, 1996, and has received Loader Operator's pay since
that time.
Back

fay

The parties have agreed that the Compl ainant's gross back
pay is as follows:
June 26 - 30, 1995

$

July 1 - August 27, 1995

$ 6,221.28

August 28 - December 7, 1995

$11,995.36

December 8, 1995 - September 15, 1996

$ 1 , 727.32

Overtime (period unspecified)

$

Bonus (period unspecified)
Total

638 . 0 8

369 . 72

$ 1 . 103.36
$22,055 . 12

This is based on the Complainant ' s wages as a Tipple Operator,
from June 26 through August 27, 1995 , of $19.94 per hour, and his
wages as a Loader Operator , since August 28, 1995, of $20.54 per
hour. Because the Complainant was economically reinstated on
December 7, 1995, at his wages as a Tipple Operator, the back pay
amount from December 8, 1995, until September 15, 1996, consists
only of the $ . 60 per hour deferential between the two pay rates .
The parties disagree as to how interest should be calculated
on the back pay. The Respondent argues that it should be
calculated on the "net back pay , " which it asserts is the gross
back pay less "regular payrol l deductions."
(Resp . Ltr . Oct. 15,
1996 . ) The Secretary maintains that the interest should be based
on the gross back pay.
I conclude that the Secretary is correct.
In Secretary on
behalf of Bailey v. Arkansas-Carbona Company, 5 FMSHRC 2042, 2052
(December 1983), the Commission ~eld that interest should be
calculated on the "net back pay . " However, it defined "net back

1931

pay" as the result of subtracting actual interim earnings,
earnings by the miner between the time of discharge and the time
of reinstatement, from gross back pay, the gross pay the miner
would have earned.
Id. at 2051 n . 14.
In this case the
Complainant's interim earnings as the result of his . economic
reinstatement from December 8, 1 995, until September 15, 1996,
have been accounted for in the gross back pay total . Therefore,
the Complainant's "net back pay," as defined by the Commission,
is the same as his gross back pay .
Accordingly, the Complainant will be awarded interest on his
net back pay of $22 , 055.12 . The interest should be calculated
using the Arkansas-Carbona method, Id. at 2052, as modified by
the Commission's decision in Clinchfield Coal Co., 10 FMSHRC
1493, 1505-06 (November 1988), which is as follows : Amount of
interest= The quarter's net back pay x number of accrued days of
interest (from the last day of that quarter to the date of
payment) x the short - term Federal underpayment rate. 1
In addition , the parties have agreed that the Complainant
will be credited with other non-monetary benefits as part of the
back pay award . He will be credited with 87 hours of accrued
vacation time and 35 hours of accrued sick leave. He will be
credited with service time for pension benefits for the time he
was discharged .
Finally, six percent of the back pay award will
be withheld and contributed to ~is 401{k) account and he will
receive nine percent interest on this contribution .
Other losses and expenses

The parties have agreed that the Complainant will be
reimbursed $120 . 00 for the purcha·se of coal he would have
received free if he were working for the company; $8.06 for phone
calls to the solicitor; and $465.26 for mileage , accommodations
and meals while attending the hearing. The Respondent does not
agree, however, that Mr . Olmstead is entitled to $1,140 . 00 in
fees paid to his attorney for representation at the company
hearing on June 28, 1995, and other work he performed in
attempting to get the Complainant reinstated after his discharge .
Nor does the Respondent agree that Mr. Olmstead should be
reimbursed $340.00 for the assistance of his union and $343.20 in
costs for his trips to the union ·office in Beulah, North Dakota.

1

The applicable interest rates and daily interest factors
may be obtained from the Commis-sion's Executive Director , 1730 K
St . , N.W., Washington, D.C. 20006.

1932

The company cites Eastern Associated Coal Corp. v. FMSHRC,
813 F.2d 639 , 644 (4th Cir. 1987) in support of its position that
the Complainant is not entitled .to reimbursement of attorney's
fees.
That case held that attorney's fees cannot be · awarded to
private counsel in a discrimination proceeding when the
compl~inant is represented by the Secretary under section
105 (c) (2), 30 U.S . C. § 815 (c) (2) .
In this case, however, the
Complainant is not seeking an award of attorneys fees for
representation by private counsel in the 105(c) proceeding .
He
is requesting reimbursement for fees expended pursuing other
avenues for reinstatement after his discharge .
Although the Secretary has not cited any authority in
support of reimbursement, I conclude that the Complainant is
entitled to restitution of at least some of the claimed fees.
The Commission has not spoken directly on this issue. However,
it has made clear from the beginning that the remedial goal of
section 105(c) is "to put an employee into the financial position
he would have been in but for the discrimination." Secretary on
behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1 , 2
(January 1982) . The Commission stated:
The central purpose of the Mine Act is to promote
safety and health among the nation ' s miners. To
accomplish that goal it is essential that miners be
encouraged to report unsafe conditions free from the
threat of retaliation . and subsequent economic loss .
Thus , we are persuaded that upon a finding of
discrimination , a presumption of the right to monetary
re l ief arises and such relief should be denied only
where "compelling reasons" otherwise dictate .
Moreover , if monetary relief is denied, the bases for
the failure to make the aggrieved party whole must be
articulated .

Id .
I n this connection , the Commission has held that
complainants are entitled to recover expenses incidental to
attending the hearing because they "would not have borne such
expenses (and inconvenience) but for [the company's]
discrimination . "
Secretary on behalf of Dunmi re and Estle v.
Northe r n Coal Co., 4 FMSHRC 126, 144 (February 1982) (citation
omitted) . Cf . Hicks v. Cobra Mining, Inc . et al, 14 FMSHRC 50
(Ja nuary 1992) (consequential damages included the fair market
value of repossessed pickup truck) . Similarly, I conclude that
Mr . Olmstead would not have incurred the expenses of hiring an
attorney but for Knife River ' s discrimination . For the same

1933

reason, I conclude that he is entitled to reimbursement of money
expended attempting to obtain union representation concerning his
discharge.
Having concluded that Mr. Olmstead is entitled to
reimbursement of these fees, however, does not mean that he is
entitied to the amounts he has claimed. In my June 28 decision,
I ordered the parties to "submit their respective positions,
concerning those issues on which they cannot agree, with
supporting arguments, case citations and references to the record
..."
18 FMSHRC at 1117 (emphasis added). With regard to
attorney's fees , the Complainan·t has submitted copies of several
bills from his attorney. No references have been made to the
record .
The first bill, dated June 29, 1995 , in the amount of
$751.00 clearly involves the attorney's representation of Mr.
Olmstead at the company hearing. The items dated June 27 and 29 ,
in the amount of $64 . 00 on the second bill (July 27, 1995) appear
also to be related to the company hearing. The remaining entries
on that bill are not specific enough to permit determination as
to what they involved. Likewise, with the exception of a
September 19, 1995 , entry for a telephone conference with Jerry
Thompson, who investigated Mr. Olmstead's complaint for MSHA, the
entries on the remaining bills are not specific enough to support
Mr. Olmstead's claim . The charge for the telephone call with Mr.
Thompson was $10 . 00 . Accordingly, I conclude that Mr. Olmstead
should be reimburs ed $825 .00 in attorney's fees.
The support for the claim for reimbursement of fees
connected with union consists solely of the following:
"The second matter of disagreement is whether. Mr.
Olmstead should be compensated for the amounts that he
spen t in order for the union to represent him in his
discharge suit . These amounts total $340 . 00 for
assistance of the union and $343 . 20 in costs for his
trips to the union office in Beulah, North Dakota
($.30/mile for 1144 miles).
(Sec. Ltr. Oct. 9 , 1996.) This information is insufficient to
permit an informed determination ·as to when these costs were
incurred, why they were incurred, what part the union played in
this situation, or whether Mr. Olmstead would have incurred the

1934

expenses if he had not been di~charge by Knife Rive r. 2
Consequently, I conclude that the Complainant has failed to
provide a basis for reimbursement of these expenses .
ORDER

Having previously found that Knife River Coal Mining Compa ny
discriminated against Arthur R . Olmstead by discharging him on
June 30, 1995, and on being informed that he was reinstated , as
ordered , on July 15, 1996, it is ORDERED that :
1.

My June 28, 1996, decision in this matter is FINAL.

2. The Respondent PAY Mr . Olmstead $22 , 055 . 12 in back
pay for the period from July 1, 1995, until his
reinstatement on September 15, 1996, with interest
computed using the Arkansas-Carbona/Clinchfield Coal
Co. method . In addition, Mr . Olmstead will be
CREDITED , as agreed by the parties, with 87 hours
accrued vacation time, with 35 hours accrued sick
leave, with service time toward his pension benefits
for the period of time he was discharged, and with a
contribution of six percent of his back pay awar d to
his 401(k) account and nine percent interest on the
contribution .
3. The Respondent REIMBURSE Mr . Olmstead $1,418 . 32 for
reasonable and related economic losses or l iti gation
expenses incurred as a result of his discharge , as
detailed in this decision.
4.
The Respondent EXPUNGE from Mr. Olmstead's
personnel file and from company records the discharge
and all references of the circumstances involved in it ,
if it has not already done so.
5. The abatement of the payment of the civil p enalty
is LIFTED and Respondent is ORDERED TO PAY a civil
penalty in the amount of $1 , 000 . 00 for its violation of
section 105(c).

2

Mr. Olmstead testified that the union did not
him at the company hearing.

1935

r~pr e sent

The Respondent shall comply with these requirements within
30 days of the date of this final order . Upon timely compliance,
this matter will be DISMISSED .

y~~

Administrative Law Judge

Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S . Department of
Labor, 1999 Broadway , Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Laura E . Beverage, Esq. , and Rebecca Graves Payne , Esq . , Jackson
& Kelly, 1600 Lincoln St . , Suite 2710, Denver, CO 80264
(Certified Mail)
/lt

1936

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE t.11.W JUI>GES
2 SJC'ILINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA . 22041

NOV 4 1996.
BUCK CREEK COAL, INC.,
Contestant

CONTEST PROCEEDING
Docket No. LAKE 94-·700-R
Citation No. 4260035; 9/l/94

v.

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

Buck Creek Mine
Mine ID 12-02033

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

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 95-232
A. C. No. 12-02033-03664
Docket . No. LAKE 95-252
A.C. No. 12-02033-03666

BUCK CREEK COAL, INC.,
Respondent

Buck Creek Mine
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. LAKE 95-142-R
Citation No. 4259853; 11/22/94

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

Docket No. LAKE 95-150-R
Citation No. 4259491; 11/28/94
Docket No . LAKE 95-152-R
Citation No . 4259493; 11/28/94
Buck Creek Mine
Mine ID 12-02033

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

CIVIL PENALTY PROCEEDINGS
Docket NO. LAKE 95-253
A.C. No . 12-02033-03667
Docket No. LAKE 95-280
A.C . No. 12-02033-03668

BUCK CREEK COAL, INC.,
Respondant

Docket No. LAKE 95-281
A.C. No. 12-02033-03669

1937

Docket No . LAKE 95-282
A.C . No. 12-02033-03570
Docket No . LAKE 95-295
A.C. No. 12-02033-03671
Docket No. LAKE 95-311
A.C. No. 12-02033-03673
Buck Creek Mine
DIFAtJ'LT DJ:CISIQH

Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by

Buck Creek Coal, Inc . , and Petitions for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Buck Creek
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815 . The petitions allege 37 violations of
the Secretary's mandatory health and safety standards and seek
penalties of $25,014 . 00 . For the reasons set forth below, I find
the company in default, affirm the orders and citations, and
assess penalties of $25,014.00 .
These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on . the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary· requested
that the company be compelled to respond to the requests and that
if the company did not respond to ~he requests a default decision

1

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies ,
in the caption, the specific docket numbers of the cases
involved.

1938

be issued in the proceedings.
Motion to Compel.

Buck Creek did not respond to the

Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996 .. . Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default, without the
issuance of a prior Order to Show Cause."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company's bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the . discovery requests . Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U.S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).
Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . • . " Commission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that "[w]hen a party
fails to comply with an order of a Judge . . • an order. to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently , I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The

1939

Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66 (a) _:were complied with.

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., in default in these cases. Accordingly, Citation No.
4260035 in Docket Nos. LAKE 94-700-R and LAKE 95-232; Citation
Nos. 4262686, 4262688 and 4262689 in Docket No. LAKE 95-252;
Order Nos. 4259491 and 4259493 and Citation No. 4259853 in Docket
Nos. LAKE 95-142-R, LAKE 95-150-R, LAKE 95-152-R and LAKE 95-253;
Citation Nos . 4259750, 4262528 and 4259573 in Docket No. LAKE 95280; Citation Nos. 4259755, 4259756, 4385587, 4259578, 4259579,
4259580, 4259757, 4259758, 4259759, 4259760, 4262701, 4262881,
4262702, 4262703, 4262704 and 4262705 in Docket No. LAKE 95-281;
Order No. 4262687 in Docket No. LAKE 95-282; Citation Nos.
4 38558 9, 4385590, 4385592, 4385593, 4385594, 4262715 ' . 42 62716,
4262717 and 4262718 in Docket No. LAKE 95-295; and Order No.
4262706 in Docket No. LAKE 95-311 are AJTimatO. Buck Creek Coal
Inc., or its successor, 2 is OJU>ERBD '1'0 PAY civil penalties of
$25,014.00 within 30 days of the date of this decision. On
receipt of payment, these proceedings are DISKISSBD.

J.~~

T . · Todd Ho;fon .
Administrative Law Judge

2

According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

1940

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

NOV 7 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 94-42
A.C. No. 12-02033-03604

v.

Docket No. LAKE 94-50

BUCK CREEK COAL, INC.,
Respondent

A.C. No. 12-02033·03605

Docket No. LAKE 94-73
A.C. No. 12-02033-03607
Docket No. LAKE 94-81
A.C. No. 12-02033-03608
:

Docket No. LAKE 94-89
A.C. No. 12-02033-03610
Docket No. LAKE 94-111
A.C. No. 12-02033-03611
Buck Creek Mine

DllAQLT DICISIQN

Before:

Judge Hodgdon

These cases are before me on Petitions for Assessment of
Civil Penalty filed by the Secretary of Labor, acting through his
Mine Safety and Health Administration (MSHA), against Buck Creek
Coal, Inc., pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815. The petitions allege 33
violations of the Secretary's man'd atory heal th and safety
standards and seek penalties of $20,588.00. For the reasons set
forth below, I find the company in default, affirm the orders and
citations, and assess penalties of $20,588.00.

1946

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Chuck Shultise, President, Buck Creek Coal Co., Inc., RRS,
Box 203, Sullivan, IN 47882 (Certified Mail)
Mr. Randall Hammond, Superintendent, Buck Creek Coal Co., Inc . ,
2156 S. County Rd., so West St., Sullivan, IN 47882 (Certified
Mail)
Terry G. Farmer, Esq., Bamberger, Foreman, Oswald, & Hahn,
708 Hulman Bldg., P.O. Box 657, Evansville, IN 47704 (Certified
Mail)
/lt

1941

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FA LLS CHURCH, VIRGINIA 2204 1

NOV 6 1996.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 94-128
A.C. No. 12-02033-03614

Petitioner
v.

Docket No. LAKE 94-142

BUCK CREEK COAL, INC.,
Respondent

A.C. No. 12-02033-03615
Docket No. LAKE 94-143
A.C . No. 12-02033-03616

Docket No . LAKE 94 - 210
A.C. No . 12-02033-03620
Docket No. LAKE 94-211
A.C. No. 12-02033-03621
Docket No. LAKE 94-220
A. C. No. 12- 02033- 03622
Docket No. LAKE 94-433
A. C. No. 12 - 02033 - 03623
Docket No. LAKE 94-434
A. C. No. 12-02033- 03624
Docket No. LAKE 94-435
A.C . No. 12 - 02033-03625
Buck Creek Mine
DEFAULT QECISIQN

Before:

Judge Hodgdon

These cases are before me on Petitions for Assessment of
Civil Penalty filed by the Secretary of Labor, acting through his
Mine Safety and Health Administration (MSHA), against Buck Creek
Coal, Inc . , pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977 , 30 U.S.C. § 815. The petitions allege 50

1942

violations of the Secretary's mandatory health and safety
standards and seek penalties of $32,750.00 .
For the reasons set
forth below , I find the company in default, affirm the orders and
~itations, and assess penalties of $32,750 . 00.
These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to a ll 1 2 counts of the
indictment against it.
On May 1 , 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compe l stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them . Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
i f the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order . The
company was further cautioned that "(f]ailure to respond will
result in the issuance of an Order of Default, without the
issuance of a p r ior Order to Show Cause. "
The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent ; and Terry G. Farme r, Esq . , the
company's bankruptcy counsel. Return Receipt Cards ha v e been
received f r om all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Moti on for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
'

1

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94 - 72 was designated as the master docket for
filings in any of the cases. However , this decision identifies,
in the caption , the specific docket numbers of the cases
involved .

1943

requested that an order of default be issued.
responded to the motion.

Buck Creek has not

I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U. S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101 , 102 (February 199~); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).

Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
an y person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the fa.i. .lu:re as are just and appropriate . . . . " Commission
Rule 66(a}, 29 C.F.R . § 2700.66(a), requires that "[w]hen a party
fails to comply with an order of a Judge . . . an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.

QRDER
Based on the above, I find the Respondent , Buck Creek Coal,
Inc., in default in these cases. Accordingly, Citation No .
9941855 in Docket No . LAKE 94-128; Citation No . 4261601 in Docket
No. LAKE 94-142; Order No . 3843797 and Citation No . 3843954 in
Docket No. LAKE 94-143; Citation Nos. 4261870, 4261871, 4261826,
4261827, 426182 9 , 4261830, 4261831, 4261833, 4262233 and 4262234
in Docket No. LAKE 94-210; Citation Nos. 4262237, 4262238,
4262239 and 4262284 in Docket No. LAKE 94-211; Citation Nos.
4055900, 4262102, 4262105, 4262106 and 4262108 in Docket No. LAKE
94-220; Citation Nos. 4262200, 4262341, 4262342, 4262344,
4262112, 4262113, 4262114, 4262115, 4262116, 4262346, 4262347,
4262348, 4262349, 3537980 and 4386041 in Docket No. LAKE 94-433;

1944

Order No . 3843796 i n Docket No. LAKE 94-434 ; and Citation Nos.
4262350 , 4262335 , 4262353 , 4262354 , 4262332, 4262337, 4262356,
4262041, 4262338 , 4262339 and 4262340 in Docket No . LAKE 94-435
are AFFIRMED . Buck Creek Coal Inc. , or its successor, 2 is
ORDERED TO PAY civil penalties of $32 , 750 . 00 within 30 days of
the date of this decision. On receipt of payment , these
proceedings are DISMISSED .

Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Chuck Shultise , President, Buck Creek Coal Co., Inc. , RR5,
Box 203, Sullivan , IN 47882 {Certified Mail)
Mr . Randall Hammond, Superintendent , Buck Creek Coal Co. , Inc . ,
2156 S. County Rd., 50 West St., Sullivan , IN 47882 (Certified
Mail)
Terry G. Farmer, Esq., Bamberger , Foreman , Oswald, & Hahn ,
708 Hulman Bldg. , P.O. Box 657, Evansville, IN 47704 (Certified
Mail)
/lt

2

According to a July 19, 1996, news release , issued by the
United States Attorney for the Southern District of I ndiana, the
company is now known as Indiana Coal Company .

1945

fEDERAL M3NE SAFETY AND HEALTH REVIEW COMMISSION
OFFIC.E OF ADM INISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

NOV 7 1996
SECRETARY OF LABOR ,

CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA) ,
Petitioner
v.

Docket No. LAKE 94-42
A.C. No. 12-02033 -03604
Docket No. LAKE 94-50
A.C. No. 12-02033-03605

BUCK CREEK COAL, INC.,

Respondent

Docket No. LAKE 94 -73
A.C. No . 12-02 033 - 036 07
Docket No. LAKE 94-81
A.C . No. 12-02 033- 036 08
Doc ket No. LAKE 94-89
A.C . No. 12- 02033 - 0361 0
Docket No . LAKE 94-111
A.C. No . 12-02 033- 03611
Buc k Cree k Mine

n1lAPLT DICISIQN
Before :

Judge Hodgdon

These cases are befor e me on Pet itions for Asse s sment of
Civil Penalty filed by the Se c r e tary of Labor, acting through his
Mine Safety and Health Administration (MSHA ), against Buck Creek
Coal, Inc ., pu rsuant to s ec ti on 105 of the Federal Mine Safety
and He a l t h Act of 1977, 30 U.S.C. § 815. The petitions allege 33
violations of the Sec retary's mandato ry health and safety
standards and seek penaltie s of $20,588. 00 . For the reasons set
fort h be l ow, I find the company in default, affirm the orders and
citations, and as se ss penalties of $20,588.00 .

1 946

These cases are several in a long line of proceedings
involving Buck Creek . 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of cri~inal actions brought by the U.S. Attorney against
the company . The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default, without the
iaauance of a prior Order to Show cauae."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company's bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as .of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued . Buck Creek has not
responded to the motion.

1

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved .

1947

I am aware that Buck Creek is apparently in bankruptcy.
However, f iling a petition in bankruptcy does not automatically
stay proceedi ngs before the Commission or foreclose an entry of
judgment against the company . 11 U. S.C. § 362{b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (Augus t 1990).
Commission Rule 59, 29 C. F.R . § 2700. 59, states that "{i]f
any person, including a party, fails to comply with an order
compelli ng discovery , the Judge may make such orders with regard
to the failure as are j ust and appropriate . . . • " Commission
Rule 66 (a) , 29 C.F. R. § 2700.66(a ), requires that "{w] hen a part y
fails to comply with an order of a J udge . . . an order to show
cause sha l l be directed to the par ty before the entry of any
order of de fa ult or dismissal."
I n vie w of t he Respondent's consistent failure to respond to
the Secretary' s discovery r equests or motions regarding the
reques ts, I concluded that issuing an order to show cause before
issui ng a de f aul t decision in these cases would be a futile act.
Cons equentl y, ! ' warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause . The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66 (a ) were complied with .

Based on t he ab o ve ~ I find the Respondent, Buck Creek Coal,
Inc . , i n de f aul t in these cases . Accordingly, Order No. 3843511
and Ci tation Nos . 3843584 and 3843587 in Docket No. LAKE 94-42 ;
Citation Nos . 3843512, 3843532, 3843810, 3843536, 3843537,
3843538 , 38 4353 9, 3843540, 4055889, 4055890, 4055891, 4055892,
4055 893 and 4055895 in Docket No. LAKE 94-50; Citation Nos .
3843945 and 3843946 in Docket No. LAKE 94-73; Citation Nos.
3843949 and 3843566 in Docket No. ,LAKE 94-81; Order No. 4055899
in Docket No. LAKE 94 -8 9; and Citation Nos. 3843958, 3843921,
384392 2, 384 3923, 384 3924, 3843926, 3843927, 3843928, 3843929,
3842536 and 3842537 in Docket No . LAKE 94-111 are AITJ>Mm> . Buc k

1948

•AY

Creek Coal Inc. , or its successor, 2 i s OJJ>SJUa> '1'0
civil
penalties of $20,588 . 00 within 30 days of the date of this
decision. On receipt of payment, these proceedings are
DISMISSED.

dJ6~
T. Todd H~~"
Administrative Law Judge
Distribution :
Rafael Alvarez, Esq., Office of the Solicitor , U.S. Department of
Labor, 230 S . Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Chuck Shulti~e, President, Buck Creek Coal Co., Inc., RRS,
Box 203 , Sullivan , IN 47882 (Certified Mail)
Mr. Randall Hammond, Superintendent , Buck Creek Coal Co., Inc. ,
2156 S. County Rd., 50 West St., Sullivan, IN 47882 (Certified
Mail)
Terry G. Farmer, Esq., Bamberger, Foreman, Oswald, & Hahn,
708 Hulman Bldg.f P.O. Box 657, Evansville, IN 47704 (Certified
Mail }
/ lt

2

According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

1949

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

NOV 1·9 1996.
AKZO NOBEL SALT, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No . LAKE 96-45-RM
Citation No. 4100787; 11/28/95

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

Docket No. LAKE 96-65-RM
Citation No. 4546275; 1/25/96
Docket No. LAKE 96-66-RM
Citation No. 4546276; 1/25/96
Docket No . LAKE 96-80 - RM
Citation No. 4546323; 1/3 /96
Cleveland Mine
Mine I.D. No . 33-01994

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 96-125-M
A. C. No. 33-01994 - 05659

v.
Cl eveland Mine
AKZO NOBEL SALT INCORPORATED
Respondent

DECISIONS
Appearances:

Edward H. Fitch IV, Esq., Office of the
Solicitor , U.S . Dept. of Labor, Arlington,
Virginia, for the Respondent/Petitioner;
Mark N. Savit, E~q., Ruth L. Ramsey, Esq.,
Patton, Boggs & Blow, Washington, D.C.,
for the Contestant/Respondent .

Before :

Judge Koutras

1950

Statement of the Proceedings
These consolidated proceedings concern proposals for
assessment of civil penalties filed by the Secretary of Labor
(MSHA), against the respondent mine operator Akzo Nobel Salt Inc .
(AKZO), pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 820(a), seeking civil penalty
assessments of $1,000, for alleged violations of mandatory
reporting regulations 30 C.F.R. 50 . 10 and 50.20(a).
(Civil
Penalty Docket No. LAKE 96-125-M, and Contest Docket Nos. LAKE
96-65-RM and LAKE 96-80-RM) .
Contest Docket Nos. LAKE 96-45- RM and LAKE 96-66-RM concern
contests filed by AKZO challenging the legality of two section
104(a) non-"S&S" citations alleging violations of regulatory
sections 50 . 10 and 57.11050(a).
At the request of the parties, a prehearing conference was
held on the record to allow the parties to explore and address
the issues, proposed stipulations, and the filing of documentary
evidence, depositions, and briefs, for submission of these
matters for surrunary decisions.
I have considered all of the oral
and written arguments presented by the parties in the course of
my adjudication of these matters.

Issues
The issues presented in these cases are (1) whether the
conditions or practices cited by the MSHA inspectors constitute
violations of the cited mandatory safety and reporting stand~rds
and (2) the appropriate civil penalties to be assessed for the
alleged violations, taking into account the civil penalty
assessment criteria found in section llO(i) of the Act.
Additional issues raised by the parties are identified and
discussed in the course of these decisions .
Applicable Statutory and Regulator~ Provisions
1.

The Federal Mine Safety and Health Act of
1977; Pub. L . 95-164, 30 U.S.C. § 801 sil. ~-

2.

Section llO(i) of the Act, 30 U.S . C . § 820 (i) .

3.

30 C.F . R. 50.10, 50.20(a), and· 57.11050(a).

4.

Corrunission Rules, 29, C.F.R. § 2700.1 srt. .§.fill.

1951

Joint Stipulations
The parties stipulated to the following:
1.
The Cleveland Mine was opened in 1961, has operated
continuously since that time, and it is within the
jurisdiction of the Mine Act.
2.
The presiding judge has jurisdiction to hear and decide
these matters.
3.
The citations were properly issued by authorized
representatives of MSHA and were properly served on AKZO.
4.
The citations were timely contested by AKZO , and no
part 100 post-inspection conferences were held.
5.
The parties agree that AKZO has sought this litigation
to challenge the positions of MSHA with respect to the
implementation of 30 C . F.R . § 50 . 10 and 30 C.F.R .
§ 57 .11050 (a).
6.
The mine produces approximately 2.5 million tons of
salt per year, and the mined product (sodium chloride or
rock salt) is used primarily for road salt, animal feed and
chemical process additives . Salt is non-flammable and is
recommended material for use in extinguishing fires.
7.
Underground employment at the mine varies somewhat on a
seasonal basis. However, at the time of incidents, total
employment was approximately 174 on three production shifts
and three maintenance shifts .
8.
The mine is currently classified as a Category VI mine
under the "gassy mine regulations." 30 C.F.R. § 57.22003(a) (6) .
That citegorizatiort "applies to mines in which the presence of
methane has not been established and are not included in
another category or subcategory . " 30 C.F . R. § 57 . 22003(a) (6).
9.
The production shaft is approximately 1853 feet deep
from the shaft collar to the sump, and it is approximately
1763 feet from the shaft collar to the mine level .
10 . The service shaft is approxima~ely 1805 feet deep from
the shaft collar to the sump, and is approximately 1765 feet
from the shaft collar to the mine level.
11. The parties agreed to the technical descriptions of the
production and service hoists (not included herein , but a
part of the record) .

1952

12 . Salt is extracted from the mine in a "room and pillar"
formation , and a second, lower level is being developed .
Three methods of salt extraction are currently being used in
the mine.
13 . The following type of combustible and flammable
materials are used or stored for use in the mine: diesel
fuel, hydraulic oil, greases, small quantities 0£ paint ,
small amount of paper and wood, tires and fir e resistant
conveyer belting. The quantities of any of these materials
underground vary significantly over time. However, the
underground diesel fuel storage facility has a maximum
· capacity of 1,500 gallons.
Furthermore, a ll of the
flammable materials listed are stored in storage cabinets .
14. There are also various types of explosives, including
ANFO along with boosters caps, detonators and primer cord
that are used and stored, in magazines , for use in the mine.
The mine has also experienced misfires on occasion . The
mine has never been cited for any violation relating to the
mishandling of misfires .
15. There have been two fires in the mine that were
reported to MSHA pursuant to 30 C . F.R . § 50.10. The first
was in 1983 and the second in 1996. The first involved a
haulage truck while the second involved a lubrication truck .
It appears that both fires apparently were caused by a
diesel fuel line leak, and they were extinguished by mine
personnel.
16 . AKZO maintains that due to the construction of the wire
ropes used . in the hoisting equipment at the mine, it is
necessary that the hoist ropes be "shortened" or adjusted
periodically so that they are tight and of equal length.
This must be done because, as the ropes are subjected to
load, they stretch.unequally . Once the variance in length
among the ropes exceeds certain tolerances, they must be
adjusted so that they are of equal length. Notwithstanding
the variance among the lengths of individual ropes, the
ropes must also be shortenep if any of them exceed a certain
maximum length.
17. AKZO maintains that the process of "shortening the
rope s" must be undertaken more frequently with regard to the
production hoist than with regard to the service hoist,
because the ropes on the production hoist are subjected to
greater loads and speeds than are the ropes on the service
hoist .
18. AKZO maintains that the frequency with which this
process must be undertaken decreases with the age of the

1953

ropes, because they stabilize as the construction gaps
between the wires are squeezed out with time.
19. MSHA maintains that the aforementioned maintenance work
is required as a result of the wear and damage ·to the
hoisting ropes which are caused by their use.
The Planned Hoist Outage of November 9. 1995
{Docket No. LAKE 96-45-RM )
20 . A planned outage of the production hoist was conducted
in order to "shorten" two of its four hoist ropes, in order,
in part, to test AKZO's understanding of MSHA's
interpretations of the applicability of the standards.
Although AKZO's notification to MSHA and the citation state
that the outage occurred at approximately 11:56 p.m . on
November 9, 1995, the hoist log indicates that the outage
occurred at approximately 12:56 p.m. on November 10, 1995.
While no one can explain definitively the disparity, it has
been suggested that the hoisting equipment clock had not
been changed for daylight saving time . Counsel agree that
this disparity is immaterial to the reporting issue because,
in either case, the hoist was unavailable for use for more
than 30 minutes . According to the hoist computer log, the
hoist was put back into service at approximately 1:46 a.m.,
November 10, 1995.
21. This hoist incident was not immediately reported to
MSHA, however a fax was received at the MSHA Newark Office
at 8:34 a.m., on November 10, 1995.
22. On November 15, 1995, MSHA inspector Don Foster
conducted interviews with both management and labor
personnel with knowledge of the planned incident. AKZO
management did not:believe that the hoist could have been
put back into service in less than 1 hour. MSHA also
received statements from two miners who worked on the hoist
which indicated that they believed that, in an emergency,
the hoist could have been put back into service in
approximately 40 minutes.
23.
During the shift on which these events occurred , there
were approximately 25 miners underground performing work
unrelated to the maintenance activity at the production
hoist . This work consisted entirely of maintenance
activities on production equipment other than the hoist . No
salt extraction occurred during the shift nor did any
welding or cutting occur during the shift.
24. On November 28, 1995, MSHA inspector Okey Reitter
issued section 104(a) Citation No. 4100787 in respect to the

1954

event of November 9, 1995, citing a violation of 30 C.F.R.
50.10.

§

25 . On November 6, 1995, Mark Savit, AKZO Counsel, wrote MSHA
seeking guidance regarding the enforcement of 30 C.F . R. §
57. 1 1050 (the "Savit letter").
(Index of Documents, Tab N) .
26 . On December 8, 1995, MSHA Administrator Vernon Gomez
respondent to Mr. Savit's letter of November 6, 1995 (the
"Gomez Response") .
(Index of D<?cument, Tab S) .
27.
On December 15, 1995, prior to the Government budget
shut down, counsel for AKZO informed counsel for the
Secretary, that AKZO would plan a hoist outage over the
holidays that would provide a test case for this litigation.
The Planned Hoist Outage of Qecember 24 , 1995
(Docket Nos. LAKE 96-65-Bm and LAKE 96-66-RM)
28. A planned outage of the production hoist occurred on
December 24, 1995. The hoist computer log indicates that it
was shut down at approximately 12:53 a.m., in order to
"shorten" all four of its hoist ropes. According to the
hoist log, the hoist was not put back into service until
approximately 3:34 a.m., December 25, 1995.
29. At the time that the ropes were shortened, they had not
yet stretched beyond the limit allowed by MSHA's retirement
criteria, at 30 C.F.R. § 57.19024, or by the manufacturer
for safe operation.
30 .
I t is possible that the hoist could have been put back
into operation in less than the time that it was out of
service .
However, during that time, there was a period
during which it would not have been possible to put the
h o ist back into service in less than one hour and miners
were not evacuated from the mine.
31 .
During the shift on which these events occurred, there
were three miners undergroun~ performing work unrelated to
the wor k on the production hoist: a mechanic, an
electrician, .and a foreman.
This work consisted of checking
pumps a n d fans and preventive maintenance on the service
ho i s t . No salt extraction occurred. during this shift nor
did any cu t ting or welding occur during this shift.
32. This hoist incident was not immediately reported to
MSHA, however a fax was received at the MSHA Newark Office
on December 26, 1995 .

1955

33 .
Following AKZO's report of these incident, MSHA
Inspector Donald Foster traveled to the mine on December 28,
1995, and started his investigation. He was accompanied by
MSHA Inspector Jim Strickler during part of his inspection.
34 . Inspector Foster conducted interviews of both hourly
and management employees at the mine and by telephone on
December 28 and 29, 1995, and January 4, 5, 9 and 11, 1996 .
Management employees were accompanied by AKZO counsel during
their interviews. On January 25, 1996, Inspector Foster
issued Citation No. 4546275 citing a violation or 30 C.F.R.
50.10, and Citation No. 4546276, citing a violation of 30
C.F.R. 57.11050(a).
Discussion
Docket No. LAKE 96-45- RM
Section 104(a) non-ns&sn Citation No. 4100787, issued at
2:45 p.m., on November 28, 1995, cites an alleged violation of
section 103(j) of the Act, and mandatory reporting standard 30
C.F.R. 50.10, and states as follows :
At about 11:56 p.m., on November 9, 1995, the
production hoist was disabled for approximately 50
minutes while two of four hoist ropes were
shortened. The rope shortening interfered with
the use of the hoist equipment for more than
thirty minutes while miners were underground.
MSHA was not immediately notified of the
interruption.
Docket Nos. LAKE 96-125-M. LAKE 96-65-RM and LAKE 96-80-RM
Section 104(a) non-ns&sn Citation No. 4546275, issued at
8:00 a.m . , on January 2~~ 1996, cites an alleged violation of
section 103(j) of the Act and mandatory reporting standard 30
C.F.R. 50.10, and states as follows:
On December 24, ~995 , at about 12:53 a.m . , the
production hoist was damaged in that it was unavailable
for serv{ce due to maintenance to shorten the four
stretched hoist ropes. This damage to the hoist
interfered with its use for more th.a n 30 minutes and
MSHA was not contacted immediately. The requirement to
report this type of hoisting accident had been
communicated to the mine operator by MSHA inspectorate
in the past and to the company's lawyer through an MSHA
letter dated December 8, 1995 (LAKE 96-65- RM).

1956

Section 104(a) non - "S&sn Citation No . 4546323, issued at
4 : 00 p . m., on January 31, 1996 , cites an alleged violation of
section 103(d) of the Act and mandatory reporting standard 30
C . F . R. 50 . 20(a), and states as follows:
The mine operator f ail~d to complete and mail
to MSHA as required 7000-1 forms, for hoist damage
which became immediately reportable when the
production hoist was taken out of service for
maintenance faults or damage, which exceeded 30
minutes. The outages were reported to MSHA by
telephone for the following dates but no completed
7000-1 reports have been received. The operator
had been informed in the past about the reporting
requirements and has failed to submit the reports .
The dates are as follows:
July 21 , 1995,
August 8, 1995, September 26, 1995, October 16,
1995, October 30, 1995 , November 9, 1995, December
17, 1995, December 23, 1995, December 24, 1995 and
December 28, 1995 (LAKE 96-80-RM).
Docket No . LAKE 96-66-RM
Section 104(a) non-ns&sn Citation No . 4546276, January 25,
1996, 8 : 03 a.m., cites an alleged violation of 30 C . F . R.
57 . llOSO(a), and the cited condition or practice states as
follows :
On December 24, 1995 , at about 12 : 53 a . m. ,
the production hoist was not available for use for
approximately three hours and thirty-seven
minutes. Miners continued to work underground
performing tasks that were unrelated to the hoist
rope shorteni~g operation . The production hoist
is part of one of the two escapeways at this mine .
The mine operator therefore failed to comply with
this standard because the miners who were
underground were not provided with two properly
main t ained escapeways to the surface to use in the
event of ~n emergency · for a period in excess of
one hour.
During part of the time that the
production hoist was out of service, the service
hoist (the primary escapeway) was also out of
service for a maintenance p~ocedure which did not
result in its use being interfered with for over
30 minutes. However, during that time both
escapeways were not in service.
This incident was staged to test MSHA's
enforcement of t his mandatory safety standard.
MSHA interpretation of this standard had been

1957

communicated to the mine operator by inspectorate
previously and to their lawyer in an MSHA letter
dated December 18 , 1995.
Deposition Testimony
MSHA Inspector Donald J . Foster, Jr., has served in that
capacity since May 1991 , and he confirmed that Mr. C. Okey
Reitter is his supervisor. Mr. Foster has inspected the
Cleveland Mine and is familiar with the hoists that are in use.
He has taken a class dealing with ropes and ~oists at the mine
academy, and has prior mining industry experience (Tr. 4- 16).
Mr. Foster stated that he investigated the hoist incident
that occurred on November 9 , 1995 (Citation No . 4100787), made
notes , and reviewed them with Mr. Reitter. He confirmed that
Mr . Reitter issued the citation (Tr. 17-22). Although the
citation states that the hoist was disabled for approximately 50
minutes, Mr . Foster confirmed that this is not mentioned in his
notes and he did not know where this information came from (Tr.
23): Based on statements he received during his investigation,
he would say that the hoist was disabled for 40 minutes (Tr . 24) .
He confirmed that he did not review the citation, but believes
that it is consistent with what he found during his
investigation , except for the difference between 40 and 50
minutes that the hoist was down (Tr . 26) . He believed the
citation was justified.
Mr . Foster explained his understanding of section 50 . 10, as
follows at (Tr . 28) :
Q.

The 30 minutes that's necessary to
trigger the reporting requirement in
section 50.10 is computed with regard to
the amount of time it takes to put the
hoist ba~k in service . . . . In other
words, I could leave the hoist down all
day; but if I can get it back running in
15 minutes, I don't have to report it
under section 50.10. Is that right?

A.

Yes.

To my understanding of that, Yes .

Mr . Foster stated that it makes no difference why the hoist
is disabled for more than 30 minutes, or· whether it is planned or
unplanned . As long as it is unavailable for over 30 minutes, it
is reportable.
If power was not available to the hoist due to a
power substation problem and the'hoist was down for over 30
minutes, it would be immediately reportable {Tr . 29-30). He did
not believe that ice in the shaft, which he considered a natural

1958

occurrence, and which may render the hoist inoperable for more
than 30 minutes, would be reportable, but he was not sure (Tr.
30) .
After reviewing a MSHA Program Circular, "Report on 30
C.F.R. Part 50," December 1986 (Exhibit C-10, Tab F), he stated
that according to this circular, ice in the shaft that results in
hoist outage for more than 30 minutes would not be reportable
(Tr. 32). The circular reference in question was read into the
record (Tr. 31-32), and it states as follows:

Q.

What constitutes "Damage to hoisting
equipment in a shaft or slope which endangers
an individual or which interferes with the
use of the equipment for more than 30
minutes?"

A.

Damage may be considered to be caused by some
accident that involved hoisting equipment, or
resulting from hoisting equipment failure. A
natural occurrence such as ice jn a shaft may
cause the shaft and hoist to be shut down for
more than 30 minutes. However, where no
accident occurs, equipment is not damaged,
and no individuals were endangered, the
natural occurrence would not itself be
reportable.

Mr. Foster confirmed his understanding that ice in the shaft
that results in the unavailability of the hoist, regardless of
its duration, does not have to be reported, as long as there is
no hoist damage, accident, or endangerment to miners (Tr. 33-34).
Mr . Foster stated that the hoist was out on November 9,
1995, because "they had ,- experienced a stretch in the ropes, to
the ropes, and they were tightening them up." He did not know if
the hoist was malfunctioning at that time (Tr. 34) .
In response
to a question of how the hoist was damaged at that time, Mr.
Foster stated as follows at (Tr . 35-37):

* * * * So those ropes at that point were
st~etched where they needed to take the slack
out of them. Those ropes were stretched.
Those ropes were damaged. ·

Q.

Do you know for a fact -- and I think you
said you did not know for a fact -- that the
ropes were stretched to such a point that
they had a skip that already exceeded the
location they were supposed to go to?

1959

A.

No, I don't.

Q.

Let's go back.
Let's suppose that the ropeadjusting exercise was undertaken before the
ropes had stretched to the point that they
exceeded that limit.
In other words, they
were undertaken as a matter of preventive
maintenance .
It was done before there was
any damage to the rope . Okay?

A.

Okay.

Q.

Then how is the hoist damaged?

A.

If we're looking at a situation where they
preventively - - or for preventive maintenance
purposes were taking this slack out, in my
opinion, if there was enough slack to take
out of there~ then it had to have exceeded
the point where they wanted it to be . Okay?
So there was already stretching of the rope
in order to take the initiative and to go
through this whole process to eliminate it.

Q.

Are you willing to say that the work that was
undertaken that you investigated in this
regard was preventive maintenance? Do you
know whether it was or not?

A.

No.

* * * *
So in my opinion, preventive maintenance is
the troubleshooting, the visual, the looking
at it . Once you've started the mechanics on
something, in my opinion the damage has
started.
Mr. Foster confirmed that the purpose of changing his
automobile oil is to prevent engine damage, and he would consider
this to be preventive maintenance. He would presume that his
engine is not damaged, and he does not check the engine to
determine any damage (Tr . 37-40).
Mr . Foster confirmed that he issued Citation No. 4546276 on
December 24, 1995, citing a violation of section 57.llOSO·(a),
which requires at least two separate functioning escapeways or
methods of getting in and out of a mine (Tr . 41).
In a mine with

1960

two shafts and two hoists, a violation of section 57 . 11050(a)
would occur "when either one of the hoists go down, and it cannot
be put back into service within an hour" (Tr. 41) . · He conceded
that the "one-hour" requirement is not stated in the regulation,
and that it is derived from the one-hour oxygen supply of a W65
self rescuer (Tr. 42).
Mr. Foster explained his reasons for issuing the citation as
follows at (Tr. 45-64).
A.

Through the statements of the people
involved, it was determined that the
production hoist had exceeded an hour from
the furthest point that it could be put back
into service. The four ropes had been, all
four ropes had been involved; and if they
had, at the very furthest point that they had
this apart with the eight clamps off, the
other ones loose, the chain falls on, to
reverse that process exceeded an hour .

Q.

And at that point, in your interpretation of
the standard, what was the violation?

A.

The violation was that, number one, that the
occurrence exceeded an hour and was not
immediately reported; and that it also
exceeded an hour, it was longer than an hour
that it could be brought up even in an
emergency situation. Okay? And that
violated having the two ways out of the mine
that had your continuous escapeways to the
surface.

Q.

In your judgment is there a requirement that
everybody be evacuated from the mine except
for those people wqrking on the hoisting
equipment at that time after an hour?

A.

In my understandiDg, once that hoist has
become disabled and is realized it is going
to be longer than an hour to get it back in,
then those people should be given orders to
evacuate at the time that. that's determined
to be, the damage, the extent, to exceed an
hour .

Mr. Foster stated that section 57.11050(a) has no specific
language that requires mine evacuation, and he was aware of no
standard that requires automatic evacuation of the entire mine
within any given time period (Tr. 53-54). However, he would rely

1961

on section 57.11050(a) to accomplish a mine evacuation. He
further confirmed that a section 104(a) citation does not require
any withdrawal of miners from the area of a violation , or a mine
evacuation . However , he then stated that the absence of two
escapeways would require a mine evacuation , and in his opinion ,
the section 104(a) citation he issued "was a withdrawal order"
because the standard requires two or more separate and p r ope r ly
maintained escapeways to the surface (Tr. 55). He further
believed that a section 104(a) citation would require that the
other escapeway be repaired and made available within one hour,
even though this is not stated in the regulation (Tr. 56) .
Mr. Foster stated that "a reasonable amount of time" to
abate a section 104(a) citation for a violation of section
57.11050(a), would be one hour to repair the other escapeway
regardless of what is wrong with the hoist, or wha t the other
people underground are doing, and no matter what the like l ihood
of a fire underground might be (Tr. 57 , 60-61).
Mr. Foster confirmed that although the second escapeway
service shaft in the instant case was working and nothing would
have prevented miners from escaping a fire using that escapeway,
he still believed that a one- hour abatement time was reasonable
(Tr . 59) .
Mr . Foster stated that if he found a situation where the
production hoist was down and was told that it would take two
hours to repair it and miners have not been withdrawn , he would
issue a section 104 (a) citation citing a violation of section
57 . 11050(a), and would require an abatement time of one hour to
evacuate the mine to el i minate the hazard (Tr. 63-64) . He knew
of no other situations where he has issued section 104(a)
citations and required the withdrawal of miners to terminate the
citation (Tr. 65).
Mr . Fo~ter stated that he has seen a portion of the February
22, 1990, memorandum from District Manager Salois (Exhibit C- 8,
Tab G), but never received it through MSHA channels or told to
use it to enforce section 57.11050(a).
(Tr. 70, 73). He
confirmed that he has always based his one-hour evacuation
interpretation of section 57 . llOSO(a), on the fact that the W65
self rescuer would enable a miner to get out of the mine within
an hour using that device (Tr . 74). He confirmed that part of
his understanding in this regard came from his experience and
interpretation that he learned when he worked at a coal mine, and
this was later confirmed from conversations with other MSHA
inspectors, including his supervisors (Tr. 75-76).
In response to questions by MSHA's counsel , Mr. Foster
stated that if a hoist used as an escapeway is broken , miners are
exposed to the hazard of not having t wo wel l maintained

1962

escapeways available for their use . Apart from repairing the
hoist, evacuating the mine will eliminate the hazard (Tr. 80.).
C. Okey Reitter , Jr , , MSHA Supervisory Inspector, Newark,
Ohio office, testified that he has never been to AKZO's Cleveland
mine (Tr. 16). He confirmed that he issued Citation No. 4100787
on November 28, 1995, because AKZO failed to immediately report a
hoist outage which exceeded 30 minutes (Tr. 19). He identified a
copy of his notes which reflect that the hoist outage was
reported by fax by AKZO's counsel on November 10, 1995, (Tr. 23).
He received the information which is stated as the "condition or
practice" in the citation from inspector Foster who went to the
mine to check out the situation (Tr . 24). Mr . Foster determined
that the hoist was down for 50 minutes after speaking with the
company and the miners. He believed the 40 to 50 minutes time
frame "was probably what we came up with how long it would have
taken to put the hoist back into service if an emergency
occurred" (Tr. 28).
He confirmed that Mr. Foster's notes
reflected different down times for the hoist in question (Tr.
29) .

Mr. Reitter expressed his understanding of section 50.10, as
follows at (Tr. 32):
If there is a hoist outage, accident or
incident, that exceeds being able to put the
hoist back into service, that exceeds 30
minutes, that incident becomes immediately
reportable to MSHA.
He further explained at (Tr. 33-34):

Q.

Okay. That 30 minutes, is that in your
interpretation of the standard, is that the
actual time the hoist is out?

A.

That is the time that it would take to put it
back into service.

Q.

Go ahead

A.

If the hoist were to be out one hour, let's
say we had the hoist shut down for one hour,
and we were able to, any time during that one
hour we were able to put it back into service
within 30 minutes, that would not have been
immediately reportable .

Q.

So if the hoist were out for all day, if the
hoist was shut down all day, but I could put

1963

it back into service in less than 30 minutes ,
then that is not a reportable hoist outage?
A.

Correct.

Mr. Reitter stated that his interpretation of section 50.10 ,
is referred to in the December 8 , 1995, letter from Vernon Gomez
to AKZO's counsel where it addresses the 30 minutes loss of
service (Tr. 34 - 35). This is the only written guidance that he
was aware of with respect to the 30 minute immediately reporting
requirement (Tr. 40).
Mr. Reitter stated that the cited hoist was disabled for use
because two of the four tail ropes were being adjusted to equally
distribute the rope lifting capacity and he explained the
tightening procedure (Tr. 41). He confirmed that prior to this
work the hoist was functioning fine and the work was performed to
preclude any future problem (Tr. 42) .
Mr. Reitter stated that nothing was broken on the hoist when
it was taken out of service and put back together again (Tr. 45).
In explaining why he believed the hoist was "damagedn within the
meaning of the definition of "accidentn found in section
50.2(h) (11), Mr . Reitter stated as follows at (Tr . 42 - 44):
Q.

Now I want you to explain to me how the hoist
was damaged.

A.

Any time that I can ' t use something, it's
damaged.

* * * *
Q.

What I want to know is how the hoist was
damaged in this case?

A.

It interfered with the use of it.

Q.

But what was the damage to it? What was
wrong with it? You just explained to me your

A.

Once it was taken out service, it's damaged.
I mean once it's -- To me 4 I would consider
the hoist damaged because I could no longer
use it.
It was not a usable thing to me .
So there was damage to it.

Q.

So any time you can't use the hoist for more
than 30 minutes, then it's damaged, right?
1964

A.

If I can't put it into service.

Q.

So if the power were out to it, say, at the
substation level more than 30 minutes and I
couldn't get it on for more than 30 minutes,
that would be damage, would it?

A.

Yes, I believe so.

* * * *
Q.

So what you're saying is that any condition
that renders the hoist unusable for more than
30 minutes, any condition, is damage to the
hoist in your understanding?

A.

In my understanding, if I could not use the
hoist as needed, if it ' s down and I can't use
it because I can't travel -- It's like a
timber beam being broken or ice in it, then
if it exceeded 30 minutes, then I would
assume it would be immediately reportable.

Mr. Reitter agreed that an automobile oil change is done to
prevent engine damage, and even though the car is unavailable for
use while the oi l was changed he would not consider the car to be
"damaged" (Tr . 49) .
Mr . Reitter stated that in his experience an "accident" is
an "unplanned event" (Tr . 51). He confirmed that he consulted
with Mr . Salois before issuing the citation, and "at different
times we ran it by different people," including Mr. Narramore in
MSHA's Arlington office, Mr . Vernon Gomez, MSHA counsel Fitch,
and his assistant district manager (Tr . 52-54).
Mr . Reitter confirmed that he supervised Mr. Foster in the
issuance of Citation No. 45462 76 , on January /.5, 1996, for a
violation of section 57.11050(a), and that he and sev~ral
individuals discussed it before it was issued, including Mr.
Salois, Mr . Narramore, Mr. Gomez, and counsel Fitch (Tr. 55-57).
Mr. Reitter ~tated that section 57 . 11050(a), requires two
operative escapeways at all times (Tr . 58).
He then stated that
one escapeway could be unavailable "for basically one hour,
which is the normal time that self rescuers are good for in the
event of a mine fire (Tr. 56 - 60). He confirmed that subsection
(b) requires a refuge for miners who cannot reach the surface
through at least two escapeways within an hour, and he conceded
that its legal to leave people underground for more than an hour
from evacuation (Tr. 62).
11

1965

Mr. Reitter confirmed that the text of section 57.11050(a),
does not state that the mine must be evacuated in one hour.
Apart from the Gomez letter to AKZO's counsel , he knew of no
other written MSHA directive requiring the evacuation of the mine
within an hour (Tr. 64) . He further stated that as an inspector,
he was always.told by other inspectors and by "word-of-mouth"
that "they needed to be able to evacuate the mine within an hour"
(Tr . 65).
Mr. Reitter stated that the one-hour time limit to evacuate
a mine starts "from the time I realize that I can't get the hoist
back into service within an hour" (Tr. 65). After discussing a
number of "case-by-case" scenarios (Tr. 66-70), with respect to
when the one-hour evacuation must be made, Mr. Reitter stated as
follows at (Tr . 71):
Q.

Okay . But now I thought you -- I am very
confused.
I understand that answer.
Once you
realize that you cannot evacuate the mine -- Once
you realize you can't put the hoist back in
service in an hour, then you must begin evacuation
procedures at that moment.

A.

Yes .

Q.

At that moment, okay.
If it takes you more than
an hour to evacuate the mine to start with, is it
or is it not your statement that you must begin
evacuation procedures immediately when one hoist - ·
- when you are down to one escape route?

A.

I would have to ask for an interpretation of that.

Q.

Who would you ask?

A.

I would start with Jim Salois.

Mr. Reitter was not aware of any MSHA regulations that
require the automatic evacuation of all miners (Tr. 72-730) . He
confirmed that the issuance of a section 104(a) or (d) citation
does not require t~e withdrawal from the area where the violation
has occurred or the evacuation of the mine (Tr. 74) . The
circumstances under which MSHA can require evacuation are very
limited and are based on specific hazard. exposure (Tr. 75).
He
agreed that the rope adjusting activities taking place when the
citation was issued was part of hoist maintenance. He confirmed
that none of the "hour language" is in the regulation and · some of
it is from the December 8, 1995, Gomez letter, and "from
direction of what other people in the agency that review policies
and procedures are interpreting it as" (Tr. 81-82).

1966

Mr. Reitter stated that prior to the Gomez letter , he
believed that if there were no escapeway for one hour there would
be a violation and he would issue a section 104(a) citation which
does not require an automatic evacuation . The citation would be
abated by providing a second means of escape or putting the
escapeway into service. He would establish an abatement time
based on the hazards presented to employees working underground .
In that scenario, he would provide a short abatement time to
correct the condition, and if it is not corrected , the work area
that was directly affected would have to be evacuated. He would
use a section 104(b) order, on a case- by-case basis, to evacuate
the work area and that order would require the people affected by
the hazard to be removed .
(Tr. 82-84) .
Mr. Reitter stated that he first became aware of the
February 22, 1990, Salois memorandum approximately a year and a
half ago after he became a supervisor in 1992. He was unaware of
the memo for a year while he was a supervisor and became aware of
it when AKZO advised him that the memo was being recalled
(Tr . 85, 90). He explained that he learned of the Salois policy
sometime in 1 994 and possibly as early as late 1993 , and the
inspectors in the off ice told him that they were following that
policy , and had he known of the policy he would have followed it.
However, he never had to use the policy because no hoist outages
occurred that he was aware of (Tr. 94-95) .
Mr . Reitter stated that the high negligence finding
associated with the January 25, 1996, citation was based on the
fact that the incident was staged to test MSHA ' s enforcement of
the standard anct MSHA's interpretation had previously been
communicated to AKZO and its attorney by letter dated December 8,
1995. He concluded that AKZO knew that the c i ted condition would
be a violation and intentionally violated the law (Tr. 102-103).
He agreed with the non - "S&S" finding (Tr . 106). He also agreed
that the service hoist ~as not unavailable for any period longer
than 30 minutes (Tr . 110) .
MSHA metal and non-metal Inspector James D. Strickler
testified that he accompanied inspector Foster to the mine on
January 4 and 5, 1996, to interview company officials with
respect to hoist c~tation No. 4546276, issued on January 25,
1996. · Mr . Foster . told him that AKZO wanted a citation to issue
so it could take i t to court and he went with Mr. Foster to take
notes of the i nterviews . He reviewed the citation and agreed
with it, including the finding that an injury or illness was
unlikely (Tr. 4 - 12).
Mr. Strickler stated that he has never seen the Salois
memorandum but has heard about it from other inspectors in his
off ice who told him that at one time miners were allowed to work
underground until the end of the shift . This was not the case in

1967

Illinois where the Sperry U.S. Gypsum Company evacuated miners
immediately (Tr. 11 , 15 - 16). He arrived at his field office in
1993, and the Sa l ois memorandum had previously been rescinded and
has never been used since he has been there . (Tr . 17-18).
Mr . Strickler stated that section 57 . 11050 , requires two
fully functional escapeways at all times .
If he were to inspect
a mine with two escapeway hoists and one is unavailable or
unusable for any reason, the operator would have a 30 minute time
period before deciding to bring people out.
If the hoist is down
for more than 30 minutes it must be reported to MSHA. The
operator must then evacuate the mine "unless they are up and
running within an hour . " Once MSHA is notified after the
expiration of the initial 30 minutes, if the operator determines
that the hoist cannot be repaired within the next 30 minutes , it
must then evacuate people at that time. This understanding on
his part is not in writing or part of the standard, and he
learned it from other inspectors and his experience . The
evacuation must begin within the hour because the miners'
breathing apparatus, the P65 and the MSAW65, is only good for an
hour (Tr. 20-22) .
Mr. Strickler stated that a "reasonable abatement time" for
a violation is left to the inspector's discretion after asking
the operator how long it will take to correct the condition, and
he has used his experience to make this determination . He had no
hoi st experience, but would ask an operator about any hoist
problem and how long it woul d take to repair it.
He did not
beli e ve that section 104(a) required the withdrawal of miners
while a violation is being abated (Tr . 23-25).
Mr. Strickler agreed that if an accident occurred as a
result of the violation it cou l d reasonably be expected to be
fatal, and his opinion was based on his underground experience
and the fact · that a mine fire could cause a fatality . He
confirmed t h at one of the escapeways was functioning and he would
reasonably expect that everyone would be able to escape a fire.
He agreed that the mine has no history of serious fires , but
non - fatal fires have occurred. He confirmed that three people
were working underground on the night of the incident in question
and they were not exposed to any hazards other than those they
are normally exposed to doing their normal job. He agreed they
were exposed to less hazards because there was no active mining
taking place (Tr. 26-28).
In response t o MSHA's counsel's question, Mr. Strickland
stated that if a hoist is out in an escapeway, it is unusable and
broken, and miners who are underground must be evacuated.
He
would issue a citation for not evacuating the mine and because
there was only one escapeway. A reasonable time to abate this
violat i on would be one hour because "that's all their life

1968

support is in my opinion , n and he has found that an hour can be a
reasonable time to evacuate at AKZO and other mines that he has
been in (Tr . 28-30) .
In response to further AKZO questions, Mr. Strickler stated
that the word "evacuationn is not part of section 57.11050{a) ,
and he is aware of no Part 57 regulations that require a mine
evacuation for non-compliance. He confirmed that he has no
authority to withdraw miners under section 104(a) of the Act, but
believed that section 57.11050 gives him that authority (Tr. 3132) .
Mr . Strickler stated that a fire burning out of control must
be reported to MSHA if it goes on for more than 30 minutes, but
an evacuation is not required. However, in the event of such a
fire or emergency, an operator is supposed to evacuate miners ,
but not from the entire mine. If the mine is not evacuated, a
separate order would be required to evacuate the mine in the
event a fire is out of control. However, based on his
"experience,n a separate order to evacuate would not be required
for a violation of section 57.11050 (Tr . 33).
MSHA metal/non-metal mine Inspector Herbert D. Bi lbrey,
testified that he conducted a regular inspection of AKZO's mine
on November 2, 1995, with Inspector Bill Backland and interviewed
people regarding a hoist shutdown which required possible
evacuation of the mine. He explained that section 57 . 11050 ,
requires an operator to maintain two fully functional escapeways
at all times, but that the regulation does not state that a mine
has to be evacuated if one of the escapeways is not functioning
(Tr. 8-9) .
Mr. Bilbrey stated his understanding of when a citation
pursuant to section 57 . llOSO(a), would have to be issued as
follows at (~r. 11):
A.

The mine has a time limit to evacuate the
mine . There could be several different
cases . You would have to take each ca~e by
case. But if it was determined that the
hoist could not be put back on line within
the hour, then evacuation had to start .

Q.

if the hoist couldn't be put back on line
within an hour, when does the evacuation
begin?

A.

If the company had then determined it
couldn't be .

1969

Q.

So how long does the company have to
determine that the hoist can ' t be put back in
service?

A.

Well, there was a floating time period which
would give them an hour · to make that
determination, and then an hour after that to
evacuate the mine.

Q.

So they have one hour to determine if they
can get the equipment working again; and then
once they make that determination, they have
an hour from the time they decide that can't
be put back in service to put it back in
service.

A.

Right .

Q.

And where is that policy stated?

A.

There's no written policy that I am aware of,
that I know of.

Mr. Bilbrey stated that he was unaware of the Salois
memorandum of February 22, 1990, and he learned about the
unwritten policy to evacuate a mine when a hoist is out from a
staff meeting and verbally from his lead supervisor Robert
LeMaster, and discussions with Mr. Reitter (Tr . 12) . He heard
about this policy approximately a year ago, and prior to that the
issue never came up in the first three years in his district (Tr.
13) .

Mr. Bi l brey stated that it was his understanding that a
hoist that i s out for 30 minutes or more is considered to be an
accident, b ut he could not explain how a hoist that is taken out
of se r vice for preventive maintenance is considered to be an
accident.
He then stated that he did not believe that a hoist
that is taken out of service for preventive maintenance is an
accident (Tr . 15).
Referring to the section 50.2(h) definitation of an
accident, Mr. Bilbrey stated that preventive maintenance is
"something that would prevent a breakdownn and something that
would be done before t he equipmen t is broken.
He defined
"da mage" as "inoperative n and stated that this would not incl u de
equipment t hat is intentionally taken out of service for
maintenance purposes (Tr. 15) .
In response to further AKZO questions, Mr. Bilbrey stated
that an unplanned outage of a hoist must be reported "if it ' s 30

1970

minutes." If power is cut off to the hoist for more than 30
minutes, it would be a reportable accident .
If ice were on the
shaft and the hoist was inoperable for 30 minutes or more , he did
not know if this would be reportable and he would have "to look
in the books,, and "I would run it by . my supervisor" (Tr . 22-23).
MSHA Inspector Dale A . Backland, has served in that capacity
for over 21 years and Mr . Reitter is his supervisor . He has
inspected AKZO's mine on more than 30 occasions .
He was at the
mine for a regular inspection on November 2, 1995, and spoke to
plant manager Higgins who informed him that he wanted him to
issue a citation for a hoist outage on the previous evening .
Mr. Backland stated that he contacted Mr. Reitter and Inspector
Bilbrey explained the situation to him . Mr. Reitter told them
that he would contact the district office to determine what
further steps would be taken (Tr. 6- 11) . Mr. Backland agreed
with Mr. Bilbrey' s conclusion that no violation existed du·e to
the fact that the hoist could be part back on line and the event
was planned (Tr. 11) .
Mr. Backland stated that section 57.11050(a) requires at
least two or more fully functional hoists at all times. A hoist
that is taken out of service for planned preventive maintenance
is not necessarily a violation of that section , depending on how
fast it can be put back into service in the event of an
emergency.
In a planned event , the hoist needs to be back in
service in "a one-hour period" (Tr . 12). If the planned
maintenance time is exceeded and it takes more than an hour, he
would expect the mine to be evacuated (Tr . 13-14). He confirmed
that section 57 . 11050(a} does not discuss mine evacuation, and
his authority to require evacuation if it takes more than an hour
to repair a hoi?t relates back to the self-rescuer which has a
life period of one hour when activated . This policy is not in
writing, but he believes it is district policy, but did not
recall who told him about this policy (Tr . 15}.
Mr. Backland reviewed the Salois memorandum and confirmed
that he was aware of it in 1990 , but did not believe it was the
policy in his district. However, when he saw the memo in 1990,
it was his understanding that regarding the time element, it
should be followed.
However, he · never had to implement the
policy because he never had a situation that required him to do
so (Tr. 16} .
Mr. Backland stated that a planned hoist outage probably
would not be reportable under section 50.10, if the hoist can be
activated within a reasonable amount of time , 10 to 15 minutes,
for evacuation in the event of an emergency. An unplanned event
that causes a hoist to go out in excess of the 30-minute required
period would be reportable, and this includes a power outage at a
site off mine property (Tr. 17-18). He stated that in fixing a

1971

reasonable abatement time to restore the equipment to service ,
the circumstances must be evaluated (Tr. 18).
Mr. Backland was of the opinion that pursuant t o the ·
reporting requirements of section 50.10, and the definition of
"accidentn found in section 50 . 2(h) , preventive maintenance that
takes more than 30 minutes is not an accident. He believed that
preventive maintenance could take place for a full shift.
He
stated that maintenance that takes a hoist out of service for
more than 30 minutes need not be reported if the hoist can be put
back in service within a reasonable amount of time to evacuate
the mine . There is no set time during which the maintenance has
to be completed or in which the hoist has to be put back in
service (Tr. 20-21).
Mr. Backland stated that if a hoist is taken out of service
in order to shorten or adjust the ropes, and it takes more than
30 minutes, it "is reportable due to the fact that you don't have
a secondary escapeway availablen (Tr . 22). He stated that the
stretching of a hoist rope is normal and does not mean that the
hoist is truly damaged or not functioning properly (Tr. 23).
In
response to a question as to whether the adjustment of an
undamaged hoist rope that has been subjected to some stretching
is a reportable accident, Mr. Backland responded as follows at
(Tr. 24) :
A.

Well, you're taking it out of service for
more than 30 minutes to conduct this and - It's a tough question to answer . We ' re
talking about reportable, right? I don't
know.
I would probably have to converse with
~Y ~upervisor on that.

Yernon R. Gomez, MSHA Administrator for Metal and Non- Metal,
testified that he supervises all of the agency metal and nonmetal enforcement operations, and part of his duties are to
ensure consistent regulatory enforcement policies. He recently
had occasion to consider the enforcement policy with regard to
section 57.11050, because of his involvement with th~ instant
litigation (Tr . 7-8) .
Mr. Gomez coniirmed that "~e was in the loopn in the
discussions of Citation Nos. 4546276 and 4546275, issued on
January 25, 1996, citing violations of sections 57.llOSO(a) and
50 . 10, for a hoist incident on December 24, 1995, and Citation
No. 4100787, issued on November 28, 1995, citing a violation of
section 50.10, for a hoist incident on November 9, 1995. He
stated that he reviewed the citation language that describe the
conditions and probably saw more than one draft, but did not
recall recommending any changes, or reviewing the gravity or
negligence findings (Tr . 10) .

1972

Mr. Gomez stated that he has never been in AKZO's Cleveland
Mine or in any salt mines in that area (Tr. 11). He confirmed
that he became aware of the Salois memorandum of February 8,
1990, and the draft of that memorandum approximately a year ago
(Tr. 11-13). He was concerned about the memorandum because it
was contrary to what he considered the policy to be (Tr. 13).
Mr . Gomez stated he was district manager of the Rocky Mountain
District in February 1, 1990, and his enforcement policy
concerning section 57 . 11050, was not like the policy stated in
the Salois Memorandum (Tr. 14). His policy was to require two
properly maintained escapeways to the surface at all times , and
if this could not be done, miners had to be evacuated .
If one
escapeway was lost "and could not be restored where we could get
the people out of the mine within an hourn a violation of section
57 . 11050, would occur (Tr. 15) .
Mr. Gomez stated that if he found only one functioning
escapeway in a mine, he would issue a citation.
If he did not
have two escapeways out of the mine within an hour, he would
issue an imminent danger order and have the mine evacuated. The
imminent danger . and hazard are that "I have to be able to get the
people out and they have to have two separate escapeways to the
surface" (Tr. 16-17).
Mr . Gomez stated that MSHA policy concerning section
57.1 1 050, requires the shutdown of mining operations in the event
one of two escapeway hoists is down and miners cannot evacuate
within an hour. This would be done through an imminent danger
order regardless of the number of people who may be doing some
work unrelated to the repairing of the disabled escapeway. He
described the nature of the imminent danger as "the possibility
of something occurring and not being in compliance with the two
escapeways to the .surfaceu (Tr. 19-21). He confirmed that th e
MSHA policy requiring evacuation if the hoist cannot be made
available within an hour is based on section 57 . 11050, and n ot
the time it might take to abate the violation (Tr. 23).
Mr . Gomez was not sure why Mr. Salois rescinded his
memorandum, and he stated that he checked with everyone who may
have been a district manager, and the current managers, to
determine whether they had a policy such as the one discussed by
Mr. Salois, and h~ found no such policy (T r. 29) .
Mr . Gomez stated that his December ·s, 1995, letter to AKZO
counsel Savit was drafted and reviewed with his safety division
staff and states MSHA's current enforcement policy concerning
section 57 . 11050. He stated that the letter was distributed to
all MSHA districts except for the North Central District, and
this was due to "a s l ipup" (Tr . 32) . He did not know if the
letter was distributed to any mine operators, but copies are
available for hand out by the inspectors . The policy
interpretation contained in the letter is not in writing anywhere

1973

else, and the contents of the letter was put together by MSHA
headquarters personnel, with no input from anyone outside the
agency. Except for the Solicitor's office, the letter was not .
shown to others for comment before it was sent out (Tr. 34-35).
Mr. Gomez stated that he was familiar with Citation No.
4100787, issued on November 28, 1995, and Citation No . 4546275,
issued on January 25, 1996, for violations of section 50.10, and
he confirmed that MSHA's posit.ion is that a hoist that becomes
unavailable for a period of more than 30 minutes, that is, for a
period of 3 0 minutes during which it could not become available,
must be reported to MSHA no matter the reason for its
unavailability (Tr. 36 ) .
With regard to his prior statements concerning the use of an
imminent danger order to evacuate miners, Mr. Gomez further
explained that an inspector could issue a citation with a short
abatement time, and a {b) order, "in other words, repair the
condition and get the people out. Then we would write you the
order and remove the people" (Tr. 38). He would consider the
lack of two properly maintained escapeways to the surface to be
an imminent danger, "in and of itself" (Tr. 39') .
Mr. Gomez stated that based on his December 8, letter,
inspectors do not have the discretion to issue a section 104{a)
citation with an abatement time exceeding one hour, and the
actual abatement time would be less than an hour because "I have
to be able to get people on the surface within an hour,"
regardless of the number of people underground or the activity
they are engaged in (Tr. 39-41). He did not believe that the
mining industry · is confused about its responsibility if there are
two escapeways ~nd one is down for any particular reason (Tr. 45).
With regard to the Salois policy memorandum, Mr. Gomez
stated that during the five years he was a district manager, and
the s i x years he was a subdistrict manager, he never heard of the
regulat o ry interpretation stated in that memorandum and he
believed it is internally inconsistent. He saw no unique reason
for al l owing miners to work underground with one escapeway for
the rest of a shift but not send the next shift underground with
only one available _escapeway. He believed that both shifts are
entitled t o escapeways, and that miners cannot be underground
doing work other than fixing a problem if there is only one
escapeway in a producing mine (Tr. 50-51 ~ .
Mr. Gomez did not believe that AKZO's position in the
instant liti gation is reasonable, and he confirmed that his
December 8, letter articulates his understanding of the
regulations as they relate to escapeway maintenance and
reporting. Contrary to his earlier statements concerning the
policy aspects of his letter, he explained as follows at (Tr.
52) :

1974

Q.

Now that letter doesn ' t state any policy,
does it?

A.

No.

Q.

There is a method for instituting agency
policy , isn't there?

A.

Yes.

Q.

Do you always issue policy when you address a
question that is raised by somebody?

A.

No. There ' s different ways of handling it,
such as that letter .

Mr. Gomez confirmed that the issuance of MSHA ' s Program
Policy Manual in 1987, revoked any policy not included therein,
and any prior existing policy would be inoperative by the
issuance of the manual (Tr. 54). The Salois memorandum was not
existing national policy , but it is possible that such policy
may have existed in some form that he was not aware of (Tr. 56).
Mr. Gomez further explained why he believed the existence of only
one workable escapeway would be an imminent danger (Tr. 56- 64).
Rodric M. Breland , Chief , Division of Safety, MSHA,
Arlington, Virginia, since August 1994 , stated that he serves as
the principal advisor to the administrator on safety issues,
regulatory policy development, petitions for modifications, and
answering inquiries concerning regulatory enforcement and
interpretations from interested mining parties (Tr . 8). He
stated that he received an inquiry from MSHA's Dallas acting
manager, Doyle fink over a year ago concerning AKZO's mine in
Louisiana concerning the unavailability of one of their
escapeways . Mr. Fink asked ·whether there was any change in
policy that would not require the evacuation of miners pursuant
to section 57:11050 when maintenance was performed on the hoist,
ahd Mr. Breland advised him that he was not aware of apy change
in policy (Tr. 11). After consulting with Mr. Gomez, Mr. Breland
informed Mr . Fink that there was no policy change and that miners
would have to be withdrawn "as soon as you don ' t have two
escapeways" and t~at this would be a violation (Tr. 13).
Mr. Breland stated that in a two - hoist situation, if one
goes down a "technical" violation occurs immediately because
miners are entitled to two ways out of the mine at all times .
However, as a practical matter, an operator needs time to
evaluate the situation , and has 30 minutes from the time the
hoist is interfered with to report the matter (Tr . 23). He
explained the evacuation requirement as follows at (Tr. 24-25) :

1975

Q.

Assuming a two hoist, two shafts, no refuge
chamber . Let's assume that situation .
Assuming that situation . You say they have
an hour to escape?

A.

They have an hour to evacuate from the time
they've made that decision. You're talking
about the evacuation portion of this
requirement .

Q.

When must they make that decision? What
triggers the decision they must evacuate?

A.

Once they decided they can't repair whatever
is wrong within the hour they need to start
evacuating .

Q.

And however long that takes them, up to an
hour, I guess?

A.

Yeah . Essentially, you know, it's -- I think
there's allowance for a reasonable amount of
time to make the determination, what problem
you're dealing with, how long is it going to
take you to repair it. Once that decision is
made, if it is going to take you longer than
an hour you should start .

Mr. Breland stated that his interpretation of section
57.11050, with respect to the "evacuation within an houru is
found in subsection (b) , and the self rescuer and fire evacuation
standards, and he believed it is based on the limits of the self
rescuer (Tr. 27).
Mr . Breland confirmed that he was aware of Citations Nos.
41 00787 and 4546275, citing violations of section 50.10, and
Citation No. 4546276 citing a violation of section 57.11050(a).
He believed that the lack of a second ascapeway would be an "S&Su
violation if normal production activities were taking place, and
further explained how he would evaluate "S&Su under several
scenarios (Tr. 36-40).
Mr. Breland was of the opinion that "one hour for the
abatement for this standard is reasonable because that is what we
expect in the evacuation" without regard to the length of time if
takes to fix the hoist or the number of people underground (Tr .
45-46, 49).
Mr. Breland stated that he first saw the February 22, 1990,
Salois memorandum sometime in the fall of 1995, when a draft was
brought to a meeting with AKZO representatives and MSHA officials

1976

where the matter of doing maintenance work and having a hoist
unavailable while people were still working was discussed (Tr.
52).
He was never aware of any policy change such ~s that
discussed in the Salois memorandum and he always followed the
"instant violation and an hour to abateu policy as stated as
follows at (Tr. 53).

Q:

You always thought of it, this kind of
instant violation and an hour to abate?

A.

Yes, and that people would -- if your hoist
became unavailable you would evacuate and
your planned kind of maintenance activities
were going to be done on off shifts,
weekends, things like that. That's standard
for most of the industry.

Q.

That's standard for most of the industry, in
your experience?

A.

Yes.

Mr. Breland stated that he told Mr. Salois that he did not
agree with his policy statement because it did not comply with
his understanding of how section 57 . 11050(a), should be applied,
but he did not know who may have directed Mr. Salois to rescind
his memorandum . He confirmed that he may have had something to
do with this because he informed Mr. Gomez of his opinion that
Mr. Salois' policy was not correct (Tr . 56).
Mr. Breland stated that he and his staff initially drafted
the December B, 1995, Gomez letter to AKZO counsel Savit, and Mr.
Breland believed the letter "is a well-written explanation of our
policy and philosophyu regarding the enforcement of section
57.11050, and he does not disagree with anything in the letter.
He was not aware that tne policy stated in the letter was in any
other written form other than the present program policy manual.
He has never shown the letter to other mine operators . and did not
know whether any district managers have done this (Tr . 59-60).
Mr. Breland stated that the · two citations citing violations
of reporting section 50 . 10, were issued because a hoisting
accident occurred · and interfered with the use of a hoist for
longer than 30 minutes and this was not reported .
It was his
understanding that the "accidentu as defined by section 50.2
concerned "working on repairing damage to hoisting equipment"
(Tr . 61) . He was not aware of any other reason for shutting down
the hoist 6ther than to do the "maintenanceu in question. He
further explained as follows at (Tr. 62):

1977

Q.

Well, do you know -- do you know whether or
not the ropes on the hoist were so out of
balance in terms of length that the hoist was
incapable of being run safely at the time
these operations were undertaken?

A.

At the time they were done it would be my
assumption they were trying to prevent the
damage from being such they would have been a
danger to continue running .

Q.

So what was the damage you're talking about?

A.

Well , once you start using equipment it's
going to be exposed to damage almost
immediately once you start using it, but they
were, I understand , cutting slack rope .

And , at (Tr . 64 -65):

Q.

So it's your experience as soon as something
starts running it starts to be damaged?

A.

Yeah.
It starts to wear. Machinery wears
from the time you start it.

Q.

Is it damaged?
right?

A.

~orrect.

Q.

Is it damaged the moment you start it?

A.

Yes; actually, instantly .
some deg~ee.

Q.

It is an accident when that happens?

A.

For our purpose, if the damage gets to the
point it requires interference with the
hoisting for more than 30 minutes.

The standard says damaged,

It is damaged to

Mr. Breland stated that any hoist that is interfered with
for more than 30 minutes is always reportab le even if it is one
one of seven escapeways, and this would include power outages
that occur off mine property.
In short, any hoist that is
interfered with for more than 30 minutes, regardless of the
reason, is reportable under section 50.10 (Tr. 66).
If a diesel
generator that is used to run a hoist is shut off to lubricate
it, and it takes more than a half-hour to do this work, he would

1978

consider this to be "damagen because "you're treating the damage.
You're trying to prevent progressive damage" (Tr. 69). He would
consider ice in a shaft that prevented the use of the hoist to be
a "natural occurrence" that would not be reportable. However, if
there were people in the mine "and you can't get them out, you've
lost your second way out," it would be reportable (Tr . 67).
James M. Salois, MSHA Metal/Non-metal North Central District
Manager since September 1989, testified that he was familiar with
citation Nos. 4100787 and 4546276, citing violations of section
50.10 and 57 . 11050(a), and he confirmed that he was involved in
the decision to i ssue citation No. 4546276, and discussed it with
Mr. Reitter, Mr. Foster, Mr . Gomez, and Mr. Narramore. He was
somewhat familiar with the cited conditions as reported by the
inspector and he reviewed the citation and findings before it was
issued (Tr. 15-1 6).
Mr. Salois stated that his memorandum of February 22, 1990,
dealt with planned and unplanned shutdowns of hoists that were
designated as escapeways and it provided examples for the
inspector to u~e when determining a mine evacuation when hoist
repairs were made.
Pursuant to that memorandum, when planned
maintenance was being carried out, and one hoist was disabled as
a result of this work, as long as the other hoist was available
to transport persons, then it was permissible to work through the
end of the shift (Tr. 18).
Mr. Salois explained that he issued the memorandum after
Mr . Frank Delimba, Chief of Safety, advised him to do so because
he (Salois) was enforcing the regulation different than the other
districts. Mr. Delimba's instruction was the result of the issue
raised by the Morton Salt Company who claimed that he (Salois)
was enforcing the regulation differently from the other
districts. Mr. Salois stated that he was a new district manager
at that time and he did.not speak wi th any other district
managers about their policy . Mr . Salois stated that he was not
sure that he agreed with his policy memorandum at that time but
issued it because he was asked to do it. He felt that the policy
provided less protection than the regulation.
Prior to the
issuance of the memorandum, mine~s were required to be out of the
mine when hoist maintenance was performed, and it was always his
understanding wheD he was an inspector "that you always had to
have two ways out of the mine." Since Mr. Delimba informed him
the other districts were doing otherwise~ Mr . Sal ois stated "I
didn't argue with him, but I didn't necessarily agree with it,
eitheru (Tr. 22 ) .
Mr. Salois stated that his understanding that miners had to
be evacuated when hoist work was performed came from what he
"learned on the job." He never issued a citation concerning this
issue, and he did not recall any citations that came to his
attention while serving as district manager (Tr. 23).

1979

Mr. Salois confirmed that his 1990 memorandum was the policy
in his district for five years , but that it was withdrawn in
February, 1995, because he did not have the authority to
establish enforcement policy for his district that was contrary
or inconsistent with national policy . He stated that he was
naive when he was asked to issue his original memorandum and he
withdrew it after learning through discussions with other
district managers that it was inconsistent with their policy (Tr.
25).
Mr. Salois stated that he is not aware of any written
nat iona l policy interpretation concerning section 57 . 11050.
i nterpretation was stated as follows at (Tr. 27-30):
A.
Is: as I would interpret it, okay, is that
you have to have two escapeways -- in talking
about 1150(a) you have to have two escapeways out
of the mine when you have people working
underground, okay. And they have to be able to
get. out through those escapeways within one hour
or they have to have a refuge chamber if they
cann·o t.

A.
I would say the violation could start at the
point the hoist went down, depending on what was
wrong with the hoist and the time necessary to fix
it.

* * * *
A.
Let ' s say a guide breaks and the hoist -- the
cage hangs in the shaft and nobody has any
kn.ow ledge of how severe the damage is, okay, or
how long it's .' going to take to fix it, okay.
What I ' m saying, at that point the clock
s ta r ts ticking. They only have one way out of the
mine, okay . And if they know they can' t fix it
right away then they should pull their people out
of the mine, based on this standard .
Q.
Under Section 11050(a ) they automatically
have to begin evacuat i ng at that moment.
A. · Well, I would say that under the standard,
but in (b} where it says they have to be able to
get out of the mine through two separate
escapeways within one hour, and they only have one
escapeway , they would have to pull their people

1980

His

to the hoist equipment . " However, "if the ice caused the damage
then I would certainly consider it reportable" (Tr. 76).
If a
decision were made not to run the hoist because of concern that
the ice would cause some damage, he did not believe it would be
reportable "if you were going to wait for it to melt." However,
taking the hoist out of service to shorten the ropes because of
concern that damage may occur would be different because the
ropes are a direct part of the hoist system (Tr . 78).
Mr . Salois believed that any event that impairs or
interferes with the use of a hoist for more than thirty minutes
would be considered damage (Tr. 80-81). He would consider a loss
of power off mine property that interferes with the use of a
hoist as damage, but would not consider ice in the shaft that
interferes with the use of the hoist to be damage (Tr. 82-84).
In response to MSHA counsel's questions, Mr . Salois stated
that in order to achieve evacuation of the mine for a violation
of section 57.11050(a), he would issue a section 104(a) or 104(d)
citation if the hazard was not imminent, and would fix the
abatement time at one hour.
If an underground rescue chamber is
not provided, the regulation requires mine evacuation through
both escapeways within an hour (Tr. 88) . He believes that an
hour is a reasonable time to evacuate the mine and once it is
evacuated the escapeway would be available for use. He would not
terminate the citation after the hour by the evacuation of
personnel only, and would extend the abatement time to focus on
other problems (Tr. 89) .
Mr . Salois stated that the December 8, 1995, letter from
Mr . Gomez to AKZO counsel Savit accurately reflects his
understanding of the proper interpretation of sections 50.10 and
57.11050, as they r~late to reporting hoist outages and
evacuating the mine, and is consistent with what might have been
a verbal und_erstanding ~f the regulations prior to the issuance
of the letter (Tr. 104)~
Mr. Salois stated that a violation of section 57.11050,
occurs when one of two escapeways is down, and that depending on
the circumstances, it is reasonable and appropriate to allow the
operator a few minutes to determ1ne if the hoist is immediately
fixable before evacuating the mine (Tr. 105). He further
explained as follows at (Tr. 106, 108) :
A.
If it's -- if it's damage that takes more
than 30 minutes to correct they would have to
report it to us.
If they can repair it and
evacuate the mine within an hour they would not
have to evacuate the mine, in my opinion, they
would just fix the problem in 35 minutes. They
would not have to evacuate the mine .

1981

* * * *
Q.
If they thought they could fix it in 20
minutes you would not expect them to evacuate the
mine , would you?

A.

Yes .

We would not expect them to evacuate.

Q.
But if yo -- if they knew it was going to
take them an hour and 10 minutes to fix it you
would?

A.

Yes.

Mr . Salois was of the opinion that in the event of
preventive maintenance work on a perfectly working hoist that
cannot be put back into use within an hour or half-hour, he would
consider the hoist to be damaged by the maintenance work itself
(Tr . 111). He explained as follows at (Tr. 112-114):
Q.
So complying with the standard damages the
equipment?
A.

In effect, yes.

Q.
And that creates an accident, doesn't it,
because it's reportable as an accident.
It's part
of the definition of accident, isn't it?
A.

Yes.

Q.

And it also creates a violation of the
doesn't it?

stand~rd;

A..

Yes.

Q.
Which requires the issuance of a citation or
evacuation from the mine?
A.

Yes.

Q.
So complying with the terms of the standard
requires that you violate it?

A.

If there are people underground .

Q.
Okay.
So you're required to evacuate the
mine in order to comply with the terms of the
standard?
A.

Yes.

1982

Mr. Salois stated that i f a hoist is down for more than an
hour , and people cannot be evacuated in an hour or more, and
repairs cannot be made within an hour , a section 104( a ) citation
will be issued , and the reasonable time for abatement would be
one hour regardless of the circumstances. Based on the standard,
he did not believe that an inspector has discretion to grant more
than an hour to abate because two properly maintained escapeways
would not be available (Tr . 119- 121).
Peter M. Tiley, Chief, Tiley and Associates, has been·in the
mine hoisting consulting business since 1972, and his work
includes the engineering and installation of hoisting systems.
His first involvement with the AKZO hoist was in 1977 or 1978,
and he is very familiar with the mine production hoists, having
studied them for years, but not so familiar with the service
hoist (Tr. 3-10) . He explained the problems and solutions
associated with the production hoists in the mine working
environment (Tr. 10 - 16).
Mr . Tiley stated that the atmosphere in the AKZO mine shaft
is a moist and salty corrosive atmosphere, and he would expect
the hoist ropes to endure this cor rosive impact during their
life. Corrosion is a part of the deterior ation process until the
ropes are retired and he would consider this to be "possibly"
damage.
He would consider a wire that breaks due to corrosion to
be damaged, and that "it ' s just degree, how fast is corrodes .
I don't know if you call it damage or
. ongoing deterioration.
not" (Tr . 18) .
Mr. Tiley explained what occurs during the hoisting cycles,
including rope fatigue and stress (Tr . 22-26).
He confirmed that
he has monitored the retirement of the mine ropes over the last
several cycles and had an idea as to how long the hoist ropes
last. He stated that the ropes appear to be wearing out from
corrosion rather than m~tal ·fatigue, and that lubrication is
necessary to enhance the useful duration of the ropes (Tr. 28).
Mr. Tiley stated that he was aware of the citations, and the
cited regulations, and has revie~ed the December 8, 1995, Gomez
letter to AKZO counsel Savit (Tr. 31). Based on his experience,
Mr. Tiley stated his understanding as to how the term "damage" in
connection with hoisting operations is generally understood and
used in the industry as follows at (Tr . 31-34):
A.
Sure~ Damage, in my experience, is something
that happens to a hoisting system that is unusual
and is cause for stopping the hoisting system and
reviewing what has happened and then deciding
whether the damage - - what has been termed damage
will impinge upon safe -- further safe operation
of the hoist.

1983

Q.
Well, is maintenance ever required to fix
?amage?
A.
No.
I say repair is for fixing damage.
Maintenance is carried on to avoid this unusual
occurrence, which -- which I consider to be what
damage is.

Q.
So you read the word "damage" in very narrow
sense as to being something which actually stops
it from working?
A.
Not necessarily stops it from working, but
you must pause when you have discovered something
that's caused damage and decide whether or not it
is severe enough that you should stop the hoist or
not.
Typically, when I get phone calls, it's
through damage and they want to know, do we have
to change the oil in this bearing now, for
example, and do we have to get somebody in to look
at this thing that's happened. So it's an unusual
occurrence that requires some stopping in the
hoisting activity to decide whether this reported
damage is serious or not.
Mr . Tiley was of the opinion that metal fatigue is not
damage because "that's the physics of the material responding to
stress." Broken wires in a lay of rope may or may not be
considered damage, as opposed to metal fatigue, depending on how
many wires are broken. He believed that damage begins when rope
retirement is required, and that prior to this time "it's just
useful life" (Tr. 33) . He explained that ropes arriving from the
manufacturer have brokeQ wires "as part of the way they are
made," and this does not mean that the rope is damaged . However,
failure of the mechanical structure that falls because of metal
fatigue would be damage (Tr . 34) .
Mr. Tiley was of the opinion, based on his experience, that
changing hoist ropes with miners underground where there is only
one additional way out of the mine is a good mining practice and
fairly normal process in the worldwide mining corrununity (Tr. 35).
He is aware that MSHA has required a mine evacuation by its
application of the one hour rule, and stated "I understand they
want to make sure that they can get men out of the mine in an
hour period, at least through one wayu when one of the two ways
out is not available for use (T r. 36-37) . He further explained
his understanding as follows at (Tr. 37):

1984

Q.

Now, is it your understanding that that is
the practice in American mines, that you are aware
of?
A.

Yes .

Q.

That they will evacuate the mine if the hoist
is down, within an hour once it goes down?

A.
Yes. My experience with them has been that
if they
they can foresee an outage of longer
than an hour, then they evacuate the mine.
Mr. Tiley stated that if a hoist goes down halfway through a
shift and it appears that it will take an hour and a half to
repair it, the standard practice would be to initiate a mine
evacuation, and if it were fixed in that time frame, the
evacuation would be rescinded and those people who had already
been evacuated would go back underground.
If the hoist is still
down at the beginning of another shift, it is not customary to
lower men in the other hoist while one of the two hoists is out
of commission. This is because if you know that one of the
hoists will be down for a long time·, you do not have two
escapeways (Tr. 41).
Mr. Tiley stated that he considered "damage" to be some out
of the ordinary occurrence that has resulted from a failure of a
part or due to either external forces or a manufacturing defect
that wasn't apparent (Tr. 4). As a general rule, hoist failures
that tend to occur frequently and need to be dealt with fall into
five major areas - namely, ropes, a skip stuck in the dump,
problems with t~e dumping mechanism, failed electrical relays and
limit switches, and defective electrical rotating equipment . He
would consider some of these items to be damaged, including brake
linkage pin breaks, a k~nk in a wire rope, or a broken or bent
skip wheel that causes skip jamming (Tr. 44).
Mr . Tiley believed that on a good hoist installation, a
hoist should be available 80% of the time, and the rest of the
time spent on maintenance, but he has not tracked AKZO to
determine the prod~ction/maintenance timing (Tr . 46). He did not
believe that much meaningful hoist maintenance work can be done
in less than an hour, and that changing all bearing lubricants,
cleaning and testing electrical rotating· equipment, including 20
safety devices, would each require three to five hours on
scheduled maintenance days which are not necessarily on weekends.
Further, each of these items cannot be completed efficiently if
they are done piecemeal, and it takes time to prepare and finish
the work (Tr . 47).

1985

Mr. Tiley stated that his prior statements concerning the
practice of allowing miners to remain in a two shaft mine where
one of the hoists is down , and provided the second hoist is still
available, did not apply to United States miners , but to Canadian
miners where the mine is not shut down for hoist maintenance or
changes . This practice complies with Canadian mining laws
requiring two escapeways , but this varies from province to
province (Tr. 51).
Mr. Tiley stated that based on his probability analysis, the
chances of both hoists being inoperative at the same time for a
period exceeding one hour is "once every hundred years" (Tr . 52}.
He confirmed that corrosion in the wire rope constitutes damage
and that when a rope exceeds 10 percent strength loss it must be
retired from service . The last produc t ion ropes were retired
after approximately 18 months because tests indicated they were
damaged and exceeded the 10 percent retirement criteria (Tr. 56).
Mr . Tiley stated that it was his understanding and
experience in the United States that the law requires mine
evacuation if the hoist is going to be down for more than an hour
(Tr. 56-60) . He agreed that major , unplanned accidents have
occurred in metal/non - metal mines in the last 15 years, and that
miners were possibly at greater risk if there was only one
escapeway rather than two (Tr . 62). He believed that maintenance
and repair of shaft equipment is a necessary and ongoing task and
that its purpose is to obtain maximum life and productivity of
the equipment and to maintain it in safe condition for use (Tr.
63) .

Mr. Tiley stated that based on his review of the mine
mainter.ance records at the Cleveland Mine and other mines he
believed that AKZO's preventive maintenance program was above
average, and he described what transpires on an average
maintenance day (Tr . 68-69) . He explained the reasons for
shortening ihe hoist ro~es as follows at (Tr. 73-74).
A.
There's two reasons why -- well, the r9pes
have to be shortened in order to make them equal
length; and the reason they ' re not equal length is
ropes stretch from the . time they're put in the
shaft. They stretch for two reasons.
The original rope that go.es in there has
spaces between the various wires, because when you
form the rope, you must have spaces between the
wires. You can ' t put wires together with zero
clearance. So as the tension is put on the rope ,
it contracts and, therefore, stretches. Now, this
stretch occurs -- a large amount of the stretch
occurs in the first month or so of operation of

I986

the hoist rope, and then it settles down ; and t he
rest of the stretch is a result of fatigue of the
wires.
So the initial stretch of the rope is
expected to occur ; is that correct?

Q.

A.

Yes .

Q.

Is it damage to the rope?

A.
No. It's - - nothing's changed in the rope
excepting it's shrunk to the point where the
clearances in it have more or less disappeared .
So as the rope stretches initially, it has to
be shortened so that the ropes will be of equal
lengths?

Q.

A.

Of equal length, yes .

Mr. Tiley stated the rope will eventually stretch to the
point where it is no longer suitable and when there is
significant fatiguing of the wires it is time to change the rope.
When asked about the rope shortening in question , he replied as
follows at (Tr. 75):
So to the best of your knowledge and in your
expert opinion, were any of the rope shortening
occurrences that you observed in your review of
the records at the AKZO Cleveland Mine based on
damage to the rope?

Q.

A.
It depends whether you consider fatigue of
the wire as d~mage or not. I don't consider it
damage, but it could be interpreted as damage on a
microscopic scale.
Were the ropes that you know of stretched to
a point where they were no longer fit for their
intended .purpose?

Q.

A.

No:

They weren't retired because of stretch.

H. John Head holds an MBA degree in management and an
undergraduate degree in mining engineering . He is employed as
the director of the technical services division of Archibald
Mining and Minerals, a mining engineering consulting services
company. He was previously employed with other consulting
companies, and also worked for the Morton Salt Company from 1982
to 1990, as mining engineering manager (Tr . 5- 11, 17).

1987

Based on his knowledge of the industry, Mr . Head believed
that the present evacuation procedure for mines with two shafts
is that if one hoist is out of service for more than an hour the
mine is evacuated , and this is standard practice among several
MSHA districts. He stated that during his contacts with a number
of mine operators concerning their current practices, all of them
confirmed that their practice was to evacuate the mine .
Further,
they all appeared to recognize that there was a change in MSHA
enforcement policy in the past two or three years. He identified
the prior policy as the one followed by Mr . Salois and his
inspectors in MSHA's North Central District. That policy
recognized that if hoists were down, it did not pose an
evacuation problem until the end of the shift, but if the outage
extended beyond the end of the shift, the subsequent shift was
not sent down and the shift that was in the mine should be
brought out at the end of their shift {Tr . 24-25}.
Mr . Head identified several other mines where this policy
was followed, and his general understanding was that at mines
with two shafts, "if one hoist went down, you could work in the
mine until the end of the shift . n This was his understanding
while working at Morton Salt when he was in daily contact with
several mine operators, and the "Cleveland issue made me aware
that the situation had changed . n He confirmed that he never
spoke to MHSA about the practice of not withdrawing miners , but
he was reasonably sure that MSHA inspectors were at mines with
hoist outages , but made no comments (Tr. 30-32}.
Mr. Head stated that in mines with numerous shafts, the
present two shaft evacuation issue would not apply . He
identified other mine operations that followed the prior practice
followed at Morton Salt (Tr . 34-35) .
Mr. Head defined "damage" as follows at (Tr. 37-39):
A.

Unexpected faulty condition .

Q.
How about fixing something that ' s broken?
Would that be -- if you're fixing something that ' s
broken, would that be ,fixing damage?
A.
I think damage implies a degree of
uncertainty. Simply fixing something that's
broken doesn't necessarily imply whether it was
damaged or whether the damage occurred over a
period of time. So I think damage has a time
sense to it. Simply saying something was broken
doesn't necessarily imply time.
Q.
So if the power is out, the hoist isn't
damaged , it's just not usable?

1988

A.

That's correct.

Q.
And before a wire rope gets retired because
it's worn out, too damaged, it's just wearing out?
A.
It's just wearing out. That, to my mind
damage implies the reverse of preventive
maintenance, damage implies an accidental
situation, sudden occurrence. Clearly, a rope
that is seriously corroded is also damaged, but
it's not -- it's not broken because of damage,
it's broken because of gradual corrosion.

* * * *
Q.
If a guide in a shaft gets bent, is that
damage to the guide?

A.

If it happens suddenly.
If there is -- you
know, a problem with the guides, and a shoe on the
skip catches a guide and pulls it out of line,
that's clearly damage.
If there's a gradual
creeping, for example, of the salt and, therefore,
the guides start to impinge on the skips, I don't
consider that damage.
Q.
But both might have to be replaced in order
to make it function right, correct?

A.

Correct.

Q.
And you would be replacing a piece of metal
that was damaged with one that was not, wouldn't
you?
A.

Correct.:

Mr. Head stated that the probability of two hoists being
down at the same time is low and he discussed these probabilities
(Tr. 40-45). He agreed that unplanned accidents occur in mining,
and in his experience hoist preventive maintenance is taken very
seriously (Tr. 45,. ' 48).
In response to AKZO questions, Mr. Head confirmed that when
he managed the Morton Salt Weeks Island mine from 1984 through
1985, the standard practice he followed was to allow people to
work to the end of the shift when a hoist was unavailable and not
to lower the next shift into a situation where one hoist was shut
down (Tr. 50). He believed that an acceptable hoist planned shut
down period would be more than an hour and less than six hours,

1989

based on different maintenance and production circumstances,
including the number of miners underground at any given time, and
their hazard exposure (Tr. 52-54) . Based on his calculations,
the probability of two hoists being out at the same time would be
"once every 20- odd yearsu or "something like every 450 yearsn
based on the two different ways that he calculated these failure
probabilities (Tr . 55- 56) .
Thomas D. Barkand, MSHA Hoist Safety Specialist , testified
that he has a B.S . degree in electrical engineering and an M.S .
degree in industrial engineering from the University of
Pittsburgh , and has worked for MSHA since 1980 . He serves as a
consultant on safety issues regarding mine hoists and elevator
safety, and conducts testing of hoists and elevators. He has
never supervised the day-to-day operations of a hoist (Tr . 6-8).
Mr. Barkand stated that he visited the Cleveland mine on
November 28 and 29, 1995, and April 2, 1996, and made notes of
his visit (Tr. 9).
He disagreed with Mr. Head's calculations of
the probability of failure of hoists, and he explained his
reasons (Tr . 13-17). He explained his experience with frictional
hoists and stated that the regulations do not explicitly require
preventive maintenance on hoists . He defined preventive
maintenance as "maintenance performed to keep a hoist
functioningu and to prevent "failures of the operation of the
hoistn (Tr . 19-21) .
Mr. Barkand defined "damageu as follows at (Tr . 21- 22):
A.
Yes, I can. My -- I think the confusion
surrounding damage has been that some people
consider damage to be a short - term effect, a
sudden impact or collision. And in my broader
view of damage it also includes effects from longterm exposure to corrosive elements causing
corrosion, as well as short-term effects .
Q.
Is there a difference in your judgment
between damage and what we would call normal wear
and tear?
·
A.
No. Normal wear and tear does, in fact,
cause damage to the device.
Mr . Barkand was of the opinion that damage to equipment on a
car engine begins from the day one owns it and as soon as it is
placed in operation . He confirmed that when he sold a used car
he did advertise it as "use for partsu because it was damaged and
not just used (Tr . 24). He confirmed that his belief that wear
and tear and damage are the same is from a dictionary and not
from any written MSHA definitions (Tr . 24) .

1990

Mr . Barkand agreed that preventive maintenance prevents
failures and can lessen the onset of damage , but believed that a
piece of equipment that has been disabled is damaged because it's
unable to do its intended function (Tr . 25} . He also considered
a locked out piece of equipment to be damaged "in its broadest
sense" (Tr. 2 6) .
Mr. Barkand stated that rope "construction stretch" is a
term that applies to the initial stretching of the rope in which
the wires are brought into closer proximity to each other, and
that this is expected (Tr. 32). Apart from wire wear and
nicking, which are the primary causes of damage and wear, the
fact that the rope gains length and loses diameter through the
process of "construction stretching," is not, of self, damage.
Mr. Barkand did not know whether any of the rope shortenings
at the mine were undertaken because of rope construction stretch.
He did not believe that the rope shortening on December 24, 1995,
was due to construction stretch because he recalled that the
records reflected that the ropes were put in service five months
or more prior to that time (Tr. 35). He confirmed that as a
rule, a rope must be retired when it loses 10 pe r cent of its
baseline diameter as measured after the rope has stretched (Tr.
36) •

Mr.Barkand stated that he has had experience with problems
associated with new hoists placed in service for a period of a
month and has spent several weeks on site addressing those
problems. He identified the problems as safety devices that
require calibration, deceleration cams that need to be physically
ground on a brass, and needed adjustments to the current
protection set points (Tr. 38 - 39}.
In response to a question as
to whether he believed these items constituted damage, he
respon~ed as follows at (Tr . 39-40):
Q.

All right.

So are those things damaged?

A.

The devices are not functioning as intended .

Q.

Yes or no.

Is it ' damaged?

A.
In the instance - - in the examples I just
cited tney are calibration problems .
Q.

Do you understand the phrase yes or no?

A.

In that example, no, they were not damaged.

Q.
So if I were to miss one in my otherwise
rigorous testing process, and find out after it
had been placed in service that it was not

1991

calibrated correctly, and I had to stop the hoist
and recalibrate that control, that wouldn't be
damage either, would it?
A.

It's repair.

Q.

But it's not damage, is it?

A.

Something was calibrated wrong.

Q.
I tried to do a rigorous analysis to find it.
I missed it.
I put in into service and it is
still recalibrated wrong , the same way I got if
from the factory, the same way I installed it .
Then I discover it's calibrated wrong.
Is it
damaged or not?
A.

In the broadest sense of damage it would be.

Mr. Barkand stated that he did not review any records
concerning hoist outages at the mine and did not know the
frequency of hoist unexpected unavailability (Tr. 41). He
confirmed that he did not closely examine the hoist ropes, but
observed that they appeared bare and moist with some fine salt
particles {Tr. 43).
He stated that the regulations require
nondestructive rope testing at intervals not to exceed six
months, and based on his review of the records these tests were
being performed (Tr. 4~).
Mr. Barkand stated that a rope could have a broken internal
wire with no surface indication on the rope itself and that this
occurs even during the manufacturing of the rope (Tr. 48). He
did not believe · that the maintenance of 100 percent availability
of two independent hoisting systems is achievable. The mine
production plan calls for people underground 24 hours a day,
seven days a week, engaged in production activities unrelated to
hoist maintenance. With this plan, it is difficult to comply
with the minimum two escapeway requirement because system
failures are bound to occur (Tr . . 52) .
Mr . Barkand stated that the regulation requires two properly
maintained escapeways at all times, and if one is not operable,
this would constitute non-compliance (Tr . 55) . He confirmed that
he has recorrunended the development of a comprehensive preventive
maintenance program for implementation during the maintenance
shift to increase the reliability and availability of escape
routes (Tr. 61).
Mr . Barkand stated that a hoist switch that sometimes
malfunctions would be considered damage and that his review of
Part 50 accident and injury abstracts for a ten-year period from

1992

1978-1988, reflects that mine operators have reported hoist
outages exceeding 30 minutes due to power failures.
He concluded
from this that operators understand the "damage" reporting
requirements when a hoist is unavailable (Tr. 63-64).
In reply to further AKZO questions, Mr. Barkand stated that
approximately 600 Part 50 accident reports were submitted during
the aforementioned 10-year period and that 40 or 50, or less than
10 percent, concern hoisting. The summarized incidents listed
appear to be "normal wear" items (Tr. 67-68), with regard to the
listed eleven "power outages," he presumed they were possibly
nonscheduled (Tr. 71). He was not aware of any official MSHA
guidance as to whether ice in a shaft has to be reported (Tr . 7273) .
Arguments Concerning the Interpretation and Application of
30 C.F.R. 50.10
The two alleged violations of reporting standard 30 C.F.R.
50.10, as noted in section 104(a) non-"S&S" citation numbers
4100787 and 4546275, concern a November 9, 1995, production hoist
outage of approximately 50 minutes while two of the four hoist
ropes were shortened, and a December 24, 1995, production hoist
outage due to maintenance service to shorten four stretched
ropes. Citation No. 4100787, states that the hoist was
"disabled" while the rope shortening work was performed, and that
this interfered with the use of the hoist for more than thirty
minutes. Citation No. 4546275, states that the hoist was
"damaged" in that it was unavailable due to the maintenance work
being performed, and that the "damage" interfered with the use of
the hoist for more than 30 minutes. AKZO allegedly violated
section 50.10, py failing to immediately report these hoist
outages . MSHA takes the position that the cited hoist outages
were the result of reportable accidents under section 50 . 10, in
that both hoists were "tjamaged" within the "accident" definition
found in section 50.2(h) (11).
AKZO argues that MSHA has adopted a bizarre view that the
maintenance work conducted on the cited hoists constitutes
"accidents" within the meaning of section 50.2, and that MSHA's
interpretation not .only defies reason and common sense, but also
impermissibly expands the reporting requirements of section
50.10. AKZO maintains that the hoists were not "damaged" within
the meaning of§ 50.2(h) (11), but were undergoing routine,
preventive maintenance . AKZO asserts ·that in order to arrive at
its current position, MSHA has. given the operative words in the
applicable regulations meanings which directly contradict their
ordinary use and meaning.
Citing several supporting cases, AKZO asserts that canons of
statutory construction require that statutes and regulations be
applied so as to give effect to the plain meaning of words. AKZO

1993 .

points. out that the applicable definition of "accident" found in
section 50.2(h) (11) involves damage to hoisting equipment.
Since
the regulations do not provide a definition for "damage," AKZO
asserts that its common and ordinary meaning should apply .
Citing Merriam Webster ' s Collegiate Dictionary 291 (5th Ed .
1993), AKZO states that in its ordinary usage, "damage" means
"loss or harm resulting from injury to person, property . . . "
AKZO maintains that MSHA has taken a view which contorts the
word "damage" beyond its ordinary meaning. AKZO cites the
conflicting testimony interpretations of the word "damage" by
MSHA officials, and characterizes it as "tortured and far fetched." As examples, AKZO cites the following testimony by
MSHA officials with respect to their understanding of the term
"damage":
Anytime that I can't use something, it's
damaged; If I have brakes on my car that are worn
out or need adjusted, there's damage that needs
maintenance to it."
(C . Okey Reitter).
Statement of Rodric Breland that damage
occurs instantly from the moment equipment is put
into use.
"
. damage begins the day you put those
ropes on, they begin to wear"
" . . . used necessarily means damaged," and
both wear and use constitute damage (James E .
Salois) .
Statement by Herbert D. Bilbrey who defined
damage as · "inoperative," but did not believe
equipment which is intentionally taken out of
service was "damaged . "
AKZO argues that these proffered definitions of "damage"
reflect a confused understanding of that term and are clearly
beyond the meaning found in Potash Company of America , 4 FMSHRC
56 (January 1982) (ALJ Stewart) . · In that case, a fire in the
power plant control room caused a power failure that affected the
use of two underground mine hoists for more than 30 minutes. The
power outage lasted for approximately two hours. The man hoist
normally used to hoist men was not energized until two or three
hours after power was restored because of circuit modifications
that were necessary to utilize outside power.
Potash was charged with a violation of section 50 . 10, for
not immediately reporting the "accident" to MSHA. The inspector
who issued the citation believed that ~n "accident" under 30
C . F . R. 50.2(h) (11) occurs any time a hoist is "down" for more

1994

than 30 minutes for any reason, without regard to damages, and
that a hoist is "damaged" within the meaning of 30 C.F.R.
50.2(h) (11 ) , whenever there is an unplanned hoist outage for any
reason.
Potash took the position that when a hoist is not damaged,
but simply disabled by a loss of electrical power that affects
the mine in general, no "accident' within the meaning of section
50.2(h) (11) occurs, and there is no obligation to immediately
report the loss of power pursuant to section 50.10. MSHA's
belief that the issue presented was whether an unexpected fire
causing disruption of power to a hoist for more than 30 minutes
is an "accident" requiring immediate notification pursuant to
section 50.10, was rejected as too broad by Judge Stewart, and he
limited his decision to the specific facts of the case.
MSHA argued that in a lay sense the fire and loss of power
to the hoists were "accidental," and that the hoisting equipment
was "damaged" because its usefulness was impaired. As support
f or this argument, MSHA relied on The American Heritage
Dictionary of the English Language (1976), which defines
"accident" as: "l. An unexpected and undesirable event; a
mishap.
2 . Anything that occurs unexpectedly or
unintentionally." The dictionary defines "damage" as "Impairment
of the usefulness or value of person or property; loss; harm . "
Aside from the "lay definition" of "accident," MSHA asserted
that the triggering alternative element for the definition of
"accident" as defined in section 50.2(h) (11) "or which interferes
with use of the equipment for more than thirty minutes" existed
because there was no power to the hoists from 9:40 p.m. to 11:35
p.m., and the hoists were not energized until 2:00 p.m. Although
MSHA conceded that the hoists were not physically damaged as a
result of the powerhouse fire and loss of power, it contended
that the l o ss of electrical power to the hoists, without more,
was a reportable accident within the meaning of sections 50.10
and 50.2(h) (11), because of the loss of power interfered with the
use of the hoists for more than 30 minutes.
Judge Stewart found that it was clear that section 50.10,
was not intended to require the ' reporting of every unexpected and
undesirable event _·or mishap, and that when read in context with
the regulato ry definition of "accident," the kinds of accidents
required t o be reported are limited to the 12 types listed in
section 5 0.2(h ) . Judge Stewart concluded that the pivotal
question was whether the hoist interference was due to physical
damage to the hoisting equipment.
Judge Stewart found no basis to support the inspector's
belief that a power outage for any reason constitutes damage to
the hoisting equipment when no physical damage to the equipment

1995

occurs as a result of the outage . Under the circumstances, he
concluded that the power outage was clearly not reportable under
the requirements of section 50.10 , and vacated the citation .
AKZO contends that the Potash case limits the reporting
requirements of section 50.10 to the specific events listed in
section 50.2 (h), and it points out that the judge relied on an
MSHA publication (Information Report on 30 C.F.R . Part 50) which
provided the following "Question and Answer" guidance as to what
constituted damage to hoisting equipment under section
50.2 (h) (11) :
41.

Q.

What constitutes "Damage to hoisting
equipment in a shaft or slope which
endangers an individual or which
interferes with the use of the equipment
for more than 30 minutes"?

A.

Damage may be considered to be caused by
some accident that involved hoisting
equipment , or resulting from hoisting
equipment failure. A natural occurrence
such as ice in a shaft may cause the
shaft and hoist to be shut down for more
than 30 minutes.
However , where no
accident occurs, equipment is not
damaged, and no individuals were
endangered, the natural occurrence would
not itself be reportable.

AKZO further argues that even if the plain meaning rule or
applicable precedent were not controlling, "damage , " within the
meaning of§ 50.2(h) (11), should be considered" . . . in l ight
of what a re.asonably pry dent person, familiar with the mining
industry and the protective purpose of the standard, would have
provided in order to meet the prqtection intended by the
standard . "
Savage Zinc . Inc. v. M.fil:IB, 17 FMSHRC 279, 283
(February 1995), quoting Diamond Roofing v . OSHRC, 528 F2d 643
(5th Cir . 1976) . Since it believes that the regulations give no
indication that th~ work "damage," as used therein, has any
meaning other than that in ordinary usage, AKZO concludes that a
reasonably prudent miner would operate on the belief that damage
means "loss or harm resulting from injury" rather than "used" or
"worn . "
In support of this con clusi on, AKZO cites the testimony
of Peter Tiley, who defined damage as " . . . an unusual
occurrence that requires some stopping in the hoisting activity
to decide whether this reported damage is serious or not."
Applying the common or ordinary meaning of the word
"damage," AKZO further concludes that i .t is evident that there

1996

was no damage to hoisting equipment in this case as there was no
loss or harm to the property. AKZO points out that it did not
experience any problems with the use of the hoisting equipment,
nor had it received any complaints about the operation of the
hoists .
It takes the position that the equipment was simply
taken out of service as a preventive care measure, and that such
routine maintenance does not constitute damage within the
ordinary meaning of that word.
Further, based upon the Potash
analysis, AKZO maintains that the closure of the production shaft
hoist for routine maintenance purposes does not constitute an
accident under§ 50 . 2(h) (11), and, therefore , is not reportable
under § 50.10. As in Potash, AKZO points out that there was no
hoist malfunction or physical damage to the hoisting equipment as
a result of the closu re for maintenance .
AKZO maintains that MSHA's guidelines indicate that if no
accident occurred and no equipment is damaged, the incident is
not reportable. AKZO asserts that both closures of the
production shaft hoist fully meet MSHA's own criteria in this
regard, and that not only did the outages last no longer than
three and one-half hours, the outages did not involve any of the
circumstances, incidents or occurrences enumerated in§ 50.2(h).
Although the production shaft was not available for more than 30
minutes, there was no physical damage as contemplated by Potash
and the MSHA guidelines. Under all of these circumstances, AKZO
believes that no violation of section 50.10 occurred.
AKZO concludes· that MSHA's interpretation fails to give
operators fair notice of which conditions would trigger the
reporting requirements under section 50.10. AKZO points out that
while MSHA contends that the regulation applies whenever there is
interference with hoisting equipment for thirty minutes, it also
appears from the Gomez letter of December 8, 1995, to AKZO's
counsel, that MSHA Das taken the broader view that section 50 . 10
is violated anytime hoi~ting equipment is interfered with. AKZO
maintains that this interpretation would render practically any
and all maintenance activities at a mi!'le "damage," which
potentially could require notification to MSHA each and every
time maintenance activities are undertaken.
AKZO concludes that it did not violate regulation § 50.10
because the production shaft hoist was not damaged within the
meaning of§ 50.2(h) (11), and thus there was not an accident
within the meaning of§ 50.2(h). The regulations very
specifically detail, in§ 50 . 2(h), the circumstances, incidents,
and occurrences to which the term "accident" applies. The
subsection under which MSHA cited the Cleveland mine states
explicitly that the re must be damage to the hoisting equipment
which interferes with its operation for 30 minutes or longer.
Further, since the regulations do not define "damage," the
ordinary meaning of that word should be applied in determining

1997

whether preventive maintenance activities which take more than 30
minutes to accomplish constitute a violation of§ 50.2(h) . As
there was no loss or injury which resulted from the maintenance
activities, there was no damage at the mine , and therefore no
violation of§ 50.2(h) .
MSHA argues that a hoist outage that prohibits its use for
more than thirty minutes is a damaged hoist that is required to
be irrunediately reported pursuant to section 50 . 10. Relying on
the Gomez letter, MSHA takes the position that the relevant issue
in a hoist outage is its availability for use, and if the hoist
can be activated quickly in the event that it is needed, it is
not damaged and does not have to be reported. However, if
because of maintenance, the hoist is unavailable to be used and
cannot by placed back in use within 30 minutes, MSHA concludes
that it is clearly damaged, and while it may be intentionally
disabled, it is damaged and unavailable nonetheless.
MSHA asserts that there is no requirement that the damage,
loss, harm, or injury occur unexpectedly, and concludes that it
would be entirely inconsistent with the purpose of the regulation
to allow an operator to intentionally disable a hoist that is
being used as .an escapeway but to prohibit such actions when the
disabling of the hoist was unintentional . MSHA contends that any
intentional and planned actions which render the hoist
unavailable for use are the equivalent damage , loss, harm , or
injury to the hoist which have the effect of damaging 1t for some
period of time . MSHA further concludes that when a hoist is shut
down for repairs and it is removed from a usable status for a
period of over thirty minutes , it has clearly suffered harm or
loss of use during that time period . MSHA believes that it is
the period of time that it is unavailable for use , not whether
the repair was planned or unplanned, that is the relevant issue
with respect to the reportability of the damaged hoist.
MSHA submits that AKZO's interpretation would allow a hoist
to be unavailable for extensive periods of time without being
reportable to MSHA, so long as AKZO could say the repair activity
was not caused by an immediate, unintentional, or unexpected
"injury" to the hoist. MSHA submits that AKZO ' s r e ading of the
regulation would allow the repairs and maintenance to go on for
days or weeks , and that its position is not reasonable because it
places far too mueh emphasis on the immediacy of the need for
repair, and on the surprise nature of the cause of the hoist
outage, and not on the fundamental focus of the unavailability of
the hoist for use in an emergency.
MSHA concludes that there is no basis in logic that only
unintentional, unexpected harm constitutes "damage" as that word
is used in 30 C.F.R. 50.2(h) (11) , and points out that AKZO's
position does not acknowledge the obvious damage that occurs when

1998

a hoist is taken apart in order to repair a damaged aspect of the
system, during which time the system cannot function when needed .
MSHA further concludes that if the hoist cannot be used because
of unintentional preplanned dismantling of part of · its system,
the hoist is damaged under either scenario and that such damage
or unavailability for use must be reported if it lasts for 30
minutes or longer.
MSHA maintains that the regulatory reporting requirement in
section 50 . 10 in this case is clear, and that a reasonably
prudent person familiar with the mining industry understands the
requirement to be consistent with MSHA ' s position . Even if the
regulation were to be construed as unclear, MSHA asserts that its
reasonable interpretation is entitled to deference by the
Conunission.
Citing a number of precedent cases, MSHA argues that when a
statute is ambiguous, an adjudicatory body should give deference
to the interpretation of the statute adopted by the agency
entrusted with its enforcement, and that the agency's
interpretation must be accept ed as long as it is not unreasonable
or inconsistent with the language or the purpose of the statute .
MSHA asserts that a statute or regulation that is intended to
protect the health and safety of individuals must be interpreted
in a broad manner to actually achieve that goal, and that the
issue on review is not whether the agency's interpretation
represents the most desirable choice in the view of the
adjudicatory body, but whether the agency's interpretation
represents a permissible choice in view of the language and the
purpose of the statute or regulation .
MSHA maintains that requiring the reporting of any incident
that makes the hoist unavailable for more than 30 minutes is the
only interpretation that enhances safety, and that AKZO's
position to the contrary would thwart the objectives of the Mine
Act and the regulation.· Citing the American College Dictionary
definition of "damage" as injury or harm that impairs value or
usefulness, MSHA concludes that whenever a hoist (being used as.
an escapeway) is unavailable for use for more than 30 minutes,
with miners underground, it is damaged, because it is useless as
a means of escape and therefore it is required to be immediately
reported.
Arguments Concernin9 the Interpretation and
Ap~lication of 30 C.F . R. 57.11050(a)
The alleged violation of mandatory safety standard 30 C.F.R.
57.11050(a), as noted in section 104(a) non-"S&S" Citation No .
4546276, concerns the unavailability of the mine production hoist
for approximately three-hours and thirty- seven minutes on
December 24, 1995, while the hoist ropes were being shortened.

1999

The incident was staged to test MSHA's enforcement interpretation
of the regulation , and it would appear that MSHA was on notice
and cooperated and participated in the staging.
AKZO asserts that section 57.11050 requires only that each
mine be equipped with "two escapeways to the surface , " and that
its purpose is to ensure that, in the event one of the ways out
of the mine cannot be used, there is an alternative means of
escape available. AKZO maintains that the standard contemplates
that there will be occasions when that purpose is not fulfilled;
that is, that one means of egress from the mine will be
unavailable, but the second means, as required by the regulation,
will be fully functional. AKZO believes that the fact that only
one of two escapeways is functional for some period of time does
not mean that the operator has failed to comply with section
57 . 11050, but rather, that it has complied with it. AKZO
concludes that to hold otherwise would mean that the moment that
the standard accomplished its intended purpose , it would be out
of compliance. AKZO believes that such a result would be absurd ,
and it concludes that the regulation cannot be rea~ to mean that
two escapeways must already be functioning.
If this were the
intended meaning, AKZO believes the regulation would have
required that there be at least three escapeways so that, in the
event one was unavailable , there would be at least two operating.
AKZO maintajns that the mine had two separate, properly
maintained escapeways to the surface in full compliance with
section 57.11050. AKZO asserts that MSHA's contention that a
violation of section 57.11050 occurs the moment hoisting
equipment has been shut down for maintenance purposes for a
period of over one hour, requiring immediate evacuation of the
entire mine, is.not supported by the statute, the regulation, or
the relevant de~isions.
AKZO cites several.court decisions in support of its
assertion that the regulation in question should be interpreted
as a whole to avoid conflicting inconsistent, and meaningless
interpretations . It points out that under section 57.11050, AKZO
must not only provide two escapeways from the mine , but it must
also ensure that the escapeways are "properly maintained.a
Considered in this .light, AKZO concludes that issuing a citation
for taking an escapeway out of s~rvice for maintenance clearly
violates the spirit and intent of the regulation .
AKZO asserts that at the time of the violations, the
production hoist was out of service for routine upkeep and
maintenance rather than repair to broken or damaged equipment.
AKZO points out that this maintenance work generally takes the
hoist out of service for periods no longer than a few hours, is
done relatively infrequently, and that during this time the
service shaft remains an available , operable escapeway in the

2000

event of an accident or emergency . Simply put, AKZO points out
that it was conducting work which was necessary in order to
comply with the regulatory mandate that escapeways be properly
maintained. AKZO concludes that it would defy logic to hold that
maintenance activities which are necessary in order to comply
with the regulation are, when undertaken, a violation of the very
rule which requires their undertaking in the first place.
AKZO argues that while section 57 . 11050, requires that at
least two escapeways exist, it does not require that both be
functional at all times, but only requires that they are
positioned so that damage to one shall not lessen the
effectiveness of the other. Accordingly, AKZO concludes that
this clearly indicates that the drafters of this regulation
anticipated there may be occasions when not all escapeways are in
use.
In support of this conclusion, AKZO cites the MSHA policy
regarding former standard section 57 . 11-50, as noted in the
Potash Company of America case, 4 FMSHRC 56.70 N.8 (January
1982). That policy allowed miners to remain underground the
remainder of the shift provided all personnel were notified and
were in agreement, but not to allow the next shift to go
underground until the hoist was repaired. Recognizing the
regulatory language "damage to one," AKZO does not believe that
this exception would not apply when an escapeway is temporarily
closed so that maintenance work can be performed.
In this case,
the second escapeway was out of use for only three and one-half
hours while undergoing preventive maintenance .
AKZO maintains that the issue is not whether it failed to
have two escapeways from the mine to the surface, but whether it
is required to evacuate the entire mine while performing routine
required preventive maintenance which re.nders one of the two
hoists unavailable for more than one hour. Since the regulation
contains no such requirement and, in order to adopt such a new,
substantive - require~ent, AKZO maintains that MSHA is required to
comply with the notice and comment requirements of both the Mine
Act and the Administrative Procedure Act ("APA").
AKZO states that prior to MSHA's newly articulated
compliance policy, it engaged in the practice widely accepted in
the mining industry, and sanctioned in Potash, 4 FMSHRC 56,
allowing a mine t9 continue operation until the end of the shift
when only one escapeway was available, provided the miners
underground were aware of the situation.· If, however, at the
beginning of the next shift only one escapeway remained available
for use, the next shift was not allowed to be lowered
underground.
AKZO asserts that there is virtually no guidance as to how
to interpret section 57 . 1105{a) during the course of required,
routine maintenance, and that in a situation where one of the

2001

hoists is not operable for a period of time, analysis of the
standard must utilize the "reasonably prudent person" test
applied for general or vague regulations.
In this · regard, AKZO
points out that over the years, the standard has been subject to
several changes in interpretation and implementation, including
the uncertainty as to the existence of a national policy, the
"end of shift" rule noted in Potash, the absence of any national
policy as expressed in the Gomez, Bilbrey, Salois, and Breland
depositions, the February 1990 Salois Memorandum adopting the
"end of shift" rule in MSHA's North Central District, and the
February 1995 recision of the Salois 1990 memo which replaced the
"end of shift" rule with the one hour policy in the North Central
District.
AKZO cites the testimony of its expert witness John Head,
who has worked in the mining industry for 20 years, who stated
that the "end of shift" rule appeared to be standard practice in
two shaft mines until two or three years ago. AKZO further cites
a Morton Salt Company March 1980 Memorandum (Exhibit Tab D)
indicating that the "end of shift" rule has in practice been
recognized in MSHA's North and South Central Districts .
AKZO states that following the recision of the 1990 Salois
memorandum in February 1995, after the instant dispute had begun,
no written material was issued by MSHA to replace it. However,
AKZO asserts that notwithstanding MSHA's conflicting evidence as
to how section 57 . 11050 should be implemented, it has attempted
to comply by following the policy most widely published as proper
policy -- the "end of shift" rule . AKZO contends that the fact
that MSHA itself has interpreted the regulation to allow
significant time periods to elapse while work is being done on
the shift makes clear the fact that AKZO acted as a reasonable
prudent person in complying with§ 57.11050 .
AKZO argues that t~e automatic evacuation requirement
engrafted by MSHA onto section 57.11050(a), is a substantive, nQt
interpretative rule that is subject to the notice and comment
requirement of both the Mine Act and the APA.
In support of its
argument, AKZO points out that MHSA's new automatice evacuation
requirement whenever a hoist may be inoperative is simply not
expressed in secti~n 57.11050(a)~
Had MSHA intended that the
standard contain &uch a requirement, AKZO believes MSHA could
have (and should have) included it as part of the regulation .
Since MSHA has for almost 20 years consistently interpreted the
standard not to require any such action, AKZO maintains that to
now engraft such a new substan~ive requirement onto the
regulation is tantamount to the promulgation of an additional
rule, subject to the "notice and comment'' requirements of section
101 of the Act, 30 U.S . C. § 811, and section 553 of the APA, 5
u.s.c. § 553.

2002

AKZO states that the automatic evacuation requirement has
never been subjected to notice and comment rulemaking
proceedings , and has never been published for general circulation
in the mining industry. AKZO maintains that such a significant
new requirement should have been subject to review and comment by
the mining industry, and since it was not, the requirement must
be struck down and the citations vacated.
AKZO takes note of the following rulemakitig exceptions
applicable to substantive rules found in section 553(d) of the
APA:
(1)

a substantive rule which grants or recognizes
an exemption or relieves a restriction;

( 2)

interpretative rules and statements of
policy; or

(3)

as otherwise provided by the agency for good
cause found and published with the rule.

AKZO argues that the APA interpretative rule exception
should be construed narrowly, and that any deference accorded
MSHA's interpretation of section 57.11050, should take into
account the consistency and reasonableness of its interpretation.
On the facts of this case, AKZO concludes that MSHA's
interpretation should not be given deference because the new
compliance requirements are unreasonable and inconsistent with
past interpretations over the years .
AKZO takes the position that MSHA's newly formed
interpretation of section 57.11050, is a substantive rule rather
than an interpretative one because it "set ( s] forth a cours e of
conduct or behavior to which employers will be held unde r penalty
of law and has sufficieQt impact to justify the not ice and
comment procedure . " Matter of Chicago Aluminum Castings Co.,
~' 535 F.Supp. 392,397 (N.D . Ill . 1981); Carter v. Cleland, 643
F.2d 1, 8(D.C . Cir. 1980) (substantive or legislative · r ule is o ne
that has the force of law and narrowly limits administrative
discretion . ) Additional cases are cited holding that a
substantive rule is o n e that imposes obligations, creates
additional conditi·o ns, or has a substantial impact on a regulated
industry or an important class of members.
AKZO argues that while the existing regulation merely
requires that a mine have two properly maintained escapeways to
the surface, MSHA personnel seek to interpret the regulation to
require the evacuation of the entire mine whenever one of the two
hoists is "down" for more than one hour (Reitter, Breland,
Salois, and Strickler depositions) . AKZO asserts that this
interpretation stands in stark contrast to the previously

2003

accepted and endorsed "end of shift" rule that interrupted mine
operations only if the hoist was not back in service at the start
of the next shift, in which case the next shift could not be
lowered into the mine . AKZO concludes that such a .vastly
different implementation of a regulation is. clearly more than an
interpretative rule, and as such is subject to the notice
requirements of the APA . AKZO further points out that MSHA's top
officials indicated that MSHA's interpretation allows its
inspectors no discretion in allowing a mine operator a reasonable
time for abatement, and they agreed that regardless of the
circumstances, an operator was allowed only one hour to evacuate
the mine if one of the two escapeways was not available for use.
{Gomez, Reitter, Breland, and Salois depositions).
AKZO maintains that beyond requiring an operator to evacuate
the mine when one of two escapeways is not available, MSHA ' s
interpretation of § 57.11050{a) has a tremendous economic and
operational impact on underground mine operators because of
increased costs of operating an underground mine by unnecessarily
interrupting workflow and productivity. Conceding that financial
costs are clearly not an operator's sole consideration, AKZO
nonetheless believes that MSHA's evacuation requirement is too
broad-sweeping in that it establishes a definitive rule or course
of action in the event of a hoist outage without granting any
consideration to the actual hazard or risk posed by the
situation. AKZO asserts that this goes against the Mine Act's
policy of giving consideration to several factors, including, the
risk or danger presented by the alleged violation, in determining
a reasonable period of time to abate a violation.
AKZO maintains that MSHA's one hour automatic evacuation
requirement represents a significant departure from its past
position and therefore requires APA notice, comment, and
publication. Notwithstanding the status of the end of shift
rule, AKZO asserts that MSHA cannot deny that it was followed in
a large portion of the ~ountry for a substantial number of years
and that the new automatic evacuation requirement substantially
departs from it.
Reviewing the limited circumstances under which the Mine Act
authorizes the withdrawal of miners, AKZO points out that the
violations issued in this case were issued as section 104{a) non"S&S" citations w~ich do not grant MSHA authority to effect an
evacuation of the mine. AKZO contends that MSHA's action amounts
to a de facto order of withdrawal, issued without statutory or
regulatory authority, citing Aluminum Company of Affierica v. M.S.HA,
14 FMSHRC 1721 {October 1992) . .
AKZO points out that section 104{a) of the Act requires that
MSHA fix a reasonable time for the abatement of a violation, and
it cites the relevant Commission precedent cases establishing the

2004

factors to be considered by an inspector in fixing a reasonable
abatement time . In the instant case, AKZO maintains that none of
the factors were followed by MSHA in requiring a one hour
abatement time.
On the facts of this case, AKZO maintains that there is no
dispute that there was no imminent danger at the mine while the
production hoist was out of service, and it points out that the
violation was issued as a non-"S&S" citation with "unlikely"
injury or illness findings, and that MSHA inspector Foster and
supervisory inspector Reitter testified that the danger was
minimal and that the normal hazards to which miners were exposed
were not affected by the hoist outages.
Further, AKZO states
that the equipment was only out of service for a period of three
hours, another escapeway to the mine surface was available in
case of an accident or emergency, there were only three miners
underground, and no mineral extraction was taking place. Under
the circumstances, AKZO maintains that the inspector should not
have required an immediate abatement of the alleged violation,
but rather should have given it a reasonable period of time to
return the hoist to service.
AKZO concludes that it did not violate section 57 . 11050
because it provided two escapeways to the mine surface and was,
at the time of the alleged violation, in fact, ensuring
compliance with a provision contained in that standard by
performing preventive maintenance to ensure that the hoist was
properly maintained. While the production hoist was unavailable,
miners still had access to the service hoist in the event of an
accident or emergency. AKZO disputes MSHA's view that the
requirement of at least two escapeways means that both of them
must be functional at all times, and notes that section
57.11050(a) does not state such a requirement, and if this had
been the drafters' intent, the standard would read otherwise .
AKZO b.elieves that -' MSHA' s insistence on automatic evacuation
of the entire mine within one hour if only one of two hoists is
available is contrary to prior agency acceptable policy and not
supported by the language of the standard . AKZO concludes that
failure to subject this substantive requirement to notice,
comment, and publication unfairly allows MSHA to promulgate a new
rule with no benefit of participation from those in the affected
industry, and fails to provide industry fair and adequate notice
of the substantive requirements of§ 57.llOSO(a). AKZO further
concludes that MSHA's automatic evacuation policy also
constitutes a de facto order of withdrawal, although under §
104(a) of the Act, MSHA does not have such authority, and that
the new requirement is an improper interpretation of §
57 . 11050(a) which clearly exceeds MSHA's authority.
Finally,
AKZO concludes that MSHA's one hour abatement period in the event

2005

of a · hoist outage, regardl ess of the circumstances, is
unreasonable and ignores consideration of several factors ,
including the risk of danger presented, in determining a
reasonable abatement peri od.
MSHA's position is that AKZO violated the provisions of 30
C.F . R. 57 . llOSO(a) by intentionally taking one of the mine's two
escapeways out of service for a period of more than one hour
while allowing normal mining operations to continue. MSHA
asserts that ~ event , whether planned or unplanned, that makes
the escapeway unavailable for more than one hour constitutes a
failure to properly maintain at least two escapeways and that
miners must be evacuated until both escapeways are available for
use . MSHA asserts that the regulation requires "at least two"
separate "properly maintained" escapeways in order for miners to
be allowed underground unless they are developing the second
escapeway or are working to make the unavailable escapeway
"properly maintained" and available for use.
MSHA maintains that the requirement for two separate
escapeways is a fundamental cornerstone of a miner ' s safety net
in the event of an emergency and that AKZO ' s operation of its
mine with only one "properly maintained" available escapeway
while it fixes its unavailabl e escapeway is not allowed by the
regulation. MSHA asserts that an escapeway that is not available
for any reason is not "properly maintained , " and that the
regulations require the evacuation of the mine when only one
escapeway is available until both have been "properly maintained"
and are again available .
In support of its evacuation argument,
MSHA asserts that section 104(c) of the Mine Act allows only the
miners needed to correct the deficiency in escapeways to be
present in the affected areas of the mine.
MSHA asserts that the regulation does not allow AKZO to
maintain normal mining operations until the end of the shift with
only one properly maintained and available escapeway for the
miners to use in the event of an emergency. MSHA believes that
in order to stay in compliance , AKZO must schedule its
maintenance for time periods when miners are not scheduled to
work, or in the alternative , construct a third escapeway.
In response to AKZO's ass«rtion that the obligation to
evacuate miners facially violates the requirement in section
104(a ) of t he Act that each operator be given a "reasonable time
to abate" a violation, MSHA takes the position that when a
violation can be avoided and is intentionally created , no time
for abatement is reasonable , because an operator does not have a
right to operate in knowing noncompliance with a mandatory safety
standard. However, to the extent that an operator is unaware of
the existence of a violation, MSHA concludes that the operator is
obligated under the Mine Act to abate . the violation as soon as

2006

reasonably possible . If only one - escapeway is available for use,
and the second one cannot be made available for use within one
hour , MSHA insists that miners must be evacuated since only one
escapeway does not achieve the level of safety mandated by the
regulation . MSHA further concludes that the one hour requirement
is a reasonable length of time for achieving compliance , based on
the language of 30 C.F . R . 57.llOSO(b), which provides that
escapeways shall be positioned so that miners .may exit the mine
within one hour.
MSHA rejects AKZO's contention that its current escapeway
enforcement position and application of section 57 . llOSO(a) is
inconsistent with its past enforcement practices as evidenced by
an MSHA memorandum mentioned in footnote 8, pg . 69, of former
commission Judge Stewart's decision in Secretary v. Potash
Corporation of America, 4 FMSHRC 56, 69 (January 1982), and the
1990 memorandum from MSHA District Manager James Salois. AKZO
concludes from those documents that it "was widely understood in
the industry" that a violation of section 57 . llOSO(a) would be
cited pursuant to the "policy" set forth in Potash, allowing
operators to continue to work until the end of the shift whenever
an escapeway is damaged or unavailable f6r use .
MSHA takes the position that pursuant to Commission Rule 72,
29 C.F . R . 2700 . 72, an unreviewed Judge ' s decision (Potash) , is
not a precedent binding on the Commission . MSHA asserts that it
is evident from both of AKZO's expert witnesses that there is
currently a clear understanding in the industry that whenever a
mine only has two escapeways, it is now industry practice to
evacuate the mine immediately whenever one of the escapeways is
unavailable for any reason. MSHA concludes that this establishes
that at some point after the Potash decision was issued fourteen
years ago, it became clear to the industry that the guidelines
noted in Potash had not been adopted and were in fact not
applicable. MSHA concl~des that AKZO must concede that MHSA's
interpretation, as asserted in this case, is the very position
understood and relied upon throughout most of the mining
industry.
MSHA maintains that equitable estoppel does not apply in
Mine Act proceedings and that all of AKZO's assertions of
conflicting prior enforcement practices that were arguably
inconsistent with the requirements of the regu l ation and the
footnote in the Potash decision do not provide a defense to the
fact of violation of 30 C.F.R . 57 . llOSO(a) . MSHA concludes that
it is clear that AKZO and other mine operators have been aware of
MSHA ' s interpretation that the unavailability of an escapeway
requires evacuation of the mine until the escapeway is returned
to normal use .
In this regard , MSHA cites the Gomez letter of
December 1995, as evidence that any prior misunderstandings or
conflicts were resolved and that the letter clearly sets forth
reasonable applications of the requirements of section

2007

57.11050(a), as it relates to maintenance activities that make
the hoist, and thereby one of the escapeways in a two-shaft mine,
unavailable for use for various periods of time. MSHA points out
that AKZO was aware of the position incorporated in the Gomez
letter when it took the actions it took to challenge the
interpretations of the regulation in this case.
Finally, as argued in support of the asserted violations of
section 50 . 10, MSHA maintains that section 57 .110 50, is clear and
that a reasonably prudent person familiar with the mining
industry understands that what is required is consistent with
MSHA's position. Assuming the regulation may be construed to be
unclear or ambiguous, MSHA nonetheless concludes that its
reasonable interpretation is entitled to deference and must be
broadly interpreted to achieve the statutory goal of protecting
the health and safety of miners.
Findings And Conclusions
Fact of Violation. Citation Nos. 4100787 and 4546275
The respondent is charged with two alleged violations of 30
C.F.R . 50.10, for failing to irrunediately notify MSHA of two
production hoist interferences that occurred on November 9, and
December 24, 1995. MSHA's position is that the two incidents
were reportable as "accidentsn because the unavailability of the
hoists was the result of maintenance work to shorten several
stretched hoist ropes, and that these interferences with the use
of the hoists constituted hoist "damagen and a reportable
"accidentn pursuant to definition of those terms found in 30
C .F.R. 50.2(h) (11) . MSHA has the burden of proving the alleged
violations by a preponderance of the evidence.
30 C.F.R . 50.10, provides as follows:
§

50.10 Immediate notification .

If an accident occurs, an operator shall
irrunediately contact the MSHA District or
Subdistrict Office having jurisdiction over its
mine.
If an operator cannot contact the
appropriate MSHA District or Subdistrict Office ,
it shall irrunedia tely contact the MSHA Headquarters
Off ice in Arlington, Virginia by telephone, at
(800) 746- 1553 .
The applicable definition of "accidentn found
in 30 C.F.R. 50.2(h) (11), is as follows:
Damage to hoisting equipment in a shaft or
slope which endangers an individual or which
interferes with use of the equipment for more than
thirty minutes.

2008

Webster's New Collegiate Dictionary, defines "accidentn in
part as: "la: an event occurring by chance or arising from
unknown causes, b: lack of intention or necessity; an unexpected
happening * * * .n
Black's Law Dictionary, Revised Fouth Edition, 1968, defines
"accident" as follows:
an unusual, fortuitous, unexpected,
unforeseen or unlooked for event, happening
or occurrence;
some sudden and unexpected event taking place
without expectation, upon the instant, rather
than something which continues, progresses or
develops;
an uncommon occurrence;
an unusual or unexpected result attending the
operation or performance of a usual or
necessary act or event;
Webster's New Collegiate Dictionary defines "damage" as
"loss or harm resulting from injury to person, property, or
reputation."
The Dictionary of Mining. Mineral. and Related Terms, U.S.
Dept. of the Interior, 1968, does not define "damage . " However,
the definition of "damaging stress" found at page 300, is stated
as follows:
The least unit stress. of a given kind and
for a given material and condition of service.
that will render a member unfit for service before
the end of its normal life .
It may do this by
producing excessive set, or by causing creeping
fatigue cracking, excessive strain hardening, or
rupture .
(Emphasis Added)
Inspector Foster's understanciing of section 50 . 10, as
applied to hoists, is that the thirty minute time period referred
to in the section 50 . 2(h) (11), definition of accident, does not
apply if the idled hoist can be put back in service within
fifteen minutes.
He confirmed that a hoist can be idled for an
entire shift, as long as it can be re-activated within fifteen
minutes (Tr. 28) .
Inspector Foster believed that a hoist that is unavailable
for use because of ice in the shaft, a condition that he
characterized as "a natural occurrence,n need not be reported,

2009

regardless of the downtime duration as long as there is no hoist
damage, accident, or miner hazard exposure (Tr. 34). This
comports with MSHA's Part 50 Program Circular interpretation
(Exhibit C-10, Tab F), but is contrary to MSHA's interpretation
that does not exempt "natural occurrences," and requires .all
hoist outages longer than thirty minutes to be immediately
reported.
Inspector Foster's supervisor, C. Okey Reitter, confirmed
that he issued the citation, and i t was his understanding that
the thirty-minute regulatory reference in question refers to the
time that it would take to put an idled hoist back into service.
As an example, he stated that if a hoist was out of service for
an hour, as long as it could be put back in service within thirty
minutes, there is no reportable hoist outage.
Mr . Reitter
identified the source of his interpretation as the Gomez letter
of December 8, 1995, and confirmed that this was the only written
guidance that he was aware of (Tr . 33-34).
Inspector Strickler believed that a hoist that is down for
more than 30 minutes must be reported to MSHA, and he believed
that an idled hoist "is unusable and broken" (Tr. 28-30}.
Inspector Bilbrey's understanding is that a hoist that is
out of service for more than thirty minutes would be considered a
reportable accident.
He believed that an idled hoist that can be
restored to service in fifteen minutes and was not unavailable
for more than an hour would not be a reportable accident (Tr.
20).
However, Mr. Bilbrey did not believe that a hoist that is
taken out of service for preventive maintenance constituted an
"accident" (Tr. 15 ) .
In his opinion, preventive maintenance is
"something that would prevent a breakdown and something that
would be done before the equipment is broken." He defined
"damage" as "inoperative" but stated that this would not include
equipment that is i~tentionally taken out of service for
maintenance purposes (Tr. 15). Mr. Bilbrey did not know if an
inoperable hoist that is idled for more than thirty minutes by
ice in the shaft would be considered a reportable accident, and
stated that he would have to consult with his supervisor in this
regard (Tr. 23).
Inspector Backland testif iea that a planned hoist outage is
"probably" not reportable if the hoist can be activated within
ten to fifteen minutes, but if the outage is in excess of thirty
minutes, it is reportable.
He further testified that preventive
maintenance in excess of thirty minutes is nfil. an "accident"
pursuant to section 50.2 ( h), and that such maintenance could be
on-going for a full shift .
He then stated that preventive
maintenance that takes a hoist out of service for more than
thirty minutes need not be reported as long as the hoist can be

2010

put back in service within a reasonable amount of time, but there
is no fixed time for completing maintenance or reactivating the
hoist (Tr. 20-21) .
In response to a question as to whether or not a hoist that
is taken out of service to adjust an undamaged rope needs to be
reported, Mr. Backland responded that "It's a tough question to
answer . . . I don't know.
I would probably have to converse
with my supervisor on that" (Tr. 24) .
Inspector Breland believed that any hoist that is interfered
with for more than 30 minutes is reportable regardles of the
number of hoists in operation and regardless of. the reason for
the outage (Tr. 66).
However, he would consider a "natural
occurrence," such as ice in the sha ft, not to be reportable
unless there is no other way out of the mine (Tr. 67).
MSHA's District Manager Salois testified that any event
specifically related to a hoist that takes it out of service for
more than thirty minutes is reportable damage . He would not
consider ice in the shaft that idles a hoist to be reportable,
unless the ice actually damaged the hoist (Tr. - 75 - 76).
In Jim Walter Resources. Inc., 17 FMSHRC 209 (February
1995), Commission Judge Barbour affirmed a violation of section
50.10, for a failure by the operator to irrunediately notify MSHA
of a hoist accident that resulted in the hoist being out of
service for over 30 minutes. The facts reflected that a skip
hoist stopped after losing its source of power . Upon
investigation by management at the hoist house containing the
hoist motor and drum , it was discovered that there was d amage to
the hoist drum neoprene wearing strips which help to maintain
proper tension on the hoist ropes which are seated into grooves
on the drum as the ropes wind and unwind. The ropes were
slipping on the wearing strips and the resulting friction heated
the strips to the point where they had begun to melt and smoke.
The condition of the hoist was not reported until many hours
after the damage occurred.
The principal issue in Jim Walter was the application of
sections 50.2(h) (11) and 50 . 10 to ' a hoist that transported coal
and/or materials rather than miners. Judge Barbour found that
the accident reporting requirement in section 50.10, applied
equally to a hoist used to transport coal and materials and a
hoist used to transport miners . However, I take note of the
decision, at 17 FMSHRC 215, summarizing the testimony of the MSHA
inspector who had 13 years of service . Judge Barbour noted as
follows :
Tuggle stated that the regulations require
the reporting of all hoisting accidents which
result in a hoist being out of service for over

2011

thirty minutes , unless the hoist i t ou t of seryice
for routine maintenance (Tr . 70-71). He stated ,
"(if] it's mechanical failure, which damages t h e
hoisting system for more than 30 minutes . . . i t
needs to be investigated . . . [I]f the mechanica l
damage it due to an accidental breakdown of the
components . . . it needs to be investigated. .au..t.
i f it ' s due to normal wear then , no. I don ' t think
it needs to be investigated" (Tr. 93) .
(Emphasis
Added)
It would appear to me that the experienced inspector in .JjJn
Wa l ter did not believe that hoist outages for over thirty minutes
caused by routine maintenance or normal wear were required to be
immediately reported to MSHA pursuant to section 50.10.
It would
further appear that the inspector would only require the
reporting and investigating of hoist incidents involving
mechanical failure resulting in damage to the hoisting system or
mechanical damage due to a breakdown of the hoist components .
In the instant proceedings, the common thread binding the
opinions of the inspectors with respect to the interpretation and
application of section 50 . 10, and the meaning of the terms
~damage" and "accident" is their inconsistent and contradictory
testimony offered in support of the violations . Under the
circumstances , I cannot conclude that a reasonably prudent person
familiar with the mining industry would understand that ~
interruption to the use of a hoist renders it damaged and
reportable pursuant to section 50 . 10. If the experienced
inspectors charged with the enforcement of this regulation are
uncertain as to its meaning and application, I would not expect a
reasonably prudent mining person to be clear as to what is
required to be reported.
Indeed , district manager Salois
conceded as much when he said he was unsure as to whether
everyone understood the reporting requirements as he did .
With respect to the use of the word "damage , " the testimony
of record reflects a variety of opinions. Mr. Foster testified
that the hoist was idled on November 9, 1995, because the ropes
that experienced some stretching were being tightened. Although
he was of the opinion that the stretching of the ropes
constituted damage, he conceded that . he had no knowledge of any
hoist malfunctions, and he admitted that he had no factual basis
to support any conclusion that the ropes had stretched to a point
that wou l d cause them to skip (Tr . 35-17).
Mr. Reitter confirmed that prior to the idling of the hoist ,
it was not broken and was functioning fine . The work that was
performed was done to preclude future rope problems (Tr. 42 - 44).
He believed the hoist was "damaged" because it was out of se r v i ce
and unavailable for use for more than thirty minutes and could

2012

not be used.
In his opinion, a ·hoist that cannot be used for
more than thirty minutes is "damaged" per ~. {Tr . 4-4) .
I find Mr. Reitter's explanations with respect to the
meaning of the term "damage" to be contradictory and confusing .
On the one hand, he believed that a hoist that is idled for more
than thirty minutes is damaged, but a hoist that is idled for one
hour is not damaged, as long as it can be put back into service
within thirty minutes.
Further , Mr. Reitter's explanations
contradict Mr . Foster's opinion based on a 15 minute window of
opportunity for putting an idled hoist back into service.
Unlike Inspector Foster, Inspector Backland believed that
the stretching of a hoist rope is normal and does not indicate
that the hoist is damaged or not functioning properly (Tr . 23) .
I find Mr. Backland ' s testimony to be the more credible.
Inspector Breland assumed that the maintenance performed on
the cited hoists was done to p r event damage . He also testified
that damage occurs when a hoist is placed in service , but then
stated that it becomes an "accident" when the "damage" interferes
with hoisting for more than thirty minutes {Tr . 62).
I find his
testimony to be contradictory and incredible , and he obviously
had no evidence that the hoists were physically damaged other
than his speculative assumptions that the maintenance was S?mehow
connected with some unexplained damage .
District Manager Salois did not know whether the cited hoist
ropes had stretched to a point beyond the allowable tolerances
(Tr. 61-64).
He a l so had no factual knowledge that the ropes
were changed out because they were damaged and could no longer be
used (Tr. 69-70).
Further, I find his testimony that a hoist
rope is damaged when it is placed in service and subjected to
stretching to be incredible and lacking any evidentiary support.
His testimony contradicts Inspector Backland's belief that rope
stretching is normal .
Further, when asked if his opinion
regarding rope damage is understood by the average miner, Mr .
Salois responded "I'm not sure everybody would look at it that
way,, {Tr. 68 - 69).
Hoisting consultant Tiley distinguished rope deterioration,
fatigue, and damage.
He believed that damage begins when rope
retirement is required, and that prior to this time "it's just
useful life" (Tr. 33). Contrary to the opinion of Mr . Salois,
Mr. Tiley did not believe that a newly manufactured hoist rope
with broken wires was damaged, and he agreed with Inspector
Backland's belief that rope streching is expected and does not
constitute damage (Tr . 74). He also confirmed that the hoist
ropes in questions were not retired because of stretching or were
no longer fit fo r use {Tr . 75). I find Mr . Tiley's testimony in
this regard to be credible. Although he alluded to a "corrosive,,

2013

mine a t mosphere, I find no credible evidence that the cited ropes
were damaged by corrosion when they were cited , and the citations
do not state that they were .
Mining engineering consultant Head defined "damage" as an
"unexpected faulty condition" that implies "an accidental sudden
occurrence" that is the opposite of preventive maintenance
performed to prevent such unexpected events {Tr . 37 - 39). He
further indicated that damage is akin to the physical breakdown
of a hoist part , and I find his testimony to be credible .
MSHA's hoist specialist Barkand was of the opinion that
damage and normal wear and tear are no different and that norma l
wear and tear causes damage.
However, he offered no credible
testimony that the cited hoists were damaged due to normal wear
and tear, and he conceded that he did not examine the ropes
closely (Tr. 22, 41) . He cited rope wire wear and nicking as the
primary causes of damage, but offered no evidence that these
hoist conditions were present in the instant cases.
Indeed, he
confirmed that the "constructive stretching," of a hoist rope,
which results in the loss of rope diameter and increased
lengthening is not damage (Tr . 32-33) .
The pa r ties stipulated that when the cited ropes were
shortened they had not stretched beyond the limits allowed by
MSHA ' s retirement criteria. MSHA has presented no credible
evidence that the cited hoists were physically damaged or
inoperable, or that the hoist ropes exceeded their normal life
exp ectancy or were not installed or maintained within the
applicable hoist rope specifications or tolerances .
Further, the
citations were issued as non-"S&Su violations , and I find no
credible evidence to support any reasonable conclusion that any
miners were exposed to a hazard .
It would appear to me that the purpose and intent of the
Part 50 reporting requirements, as stated in section 50.1, is to
provide MSHA with information in connection with mine accidents,
injuries , and illnesses in order to enable MSHA to respond to
those events by investigating and developing facts to ascertain
the causes of such incidents, and to enable MSHA, in cooperation
with the mine operator, to find the ways and means for preventing
recurrences. A secondary purpose appears to be the establishment
of a system of reporting that will enable MSHA to compile
accident, in j ury, and i ll ness statistics as a means of "tracking"
such events for publication and dissemination to the mining
community as a means of identifying problems associated with
these events .
Insofar as the definition of "accident" associated with
hoisting equipment as stated in section 50 . 2(h} {11} is concerned,
I have diff i culty in understanding how a planned routine

2014

preventive maintenance procedure that is performed to prevent
damage and insure continued compliance with sections 57.1 1 050(a),
in the absence of any actual hoist damage or hazard exposure to
miners, can reasonably be construed to constitute a reportable
accident pursuant to section 50.10.
I cannot conclude that
requiring the reporting of such incidents is reasonably related
to the intent and purpose of sections 50.10 and 50 . 20 .
MSHA's position that any interference with the use of a
hoist for more than thirty minutes, regardless of the reason, and
notwithstanding the absence of any physical damage, nonetheless
constitutes damage that is irrunediately reportable as an accident
pursuant to section 50.10, IS REJECTED as an unreasonable and
rather strained interpretation of the corrunon use of the word
"damage."
As noted earlier in the Potash Company of Affierica case, 4
FMSHRC 56 (January 1982) , former Commission Judge Stewart
concluded that in the absence of any evidence of physical damage
to a hoist which interferes with its use , it is not "damaged"
within the common understanding of that word or the meaning of
section 50.2(h) (11), and the interference does not constitute an
"accident" under the irrunediate notification requirement found in
section 50 .1 0.
I conclude and find that the common and ordinary meaning of
"damage" in connection with the cited hoists connotes some
readily recognizable physical damage that renders the hoist
inoperable and requiring some repair to place it back in service.
In this regard, I agree with Judge Stewart ' s decision in the
Potash case , and I conclu9e and find that absent any evidence of
some physical damage to the cited hoists, taking them out of
service for reasons unrelated to any such damage, such as routine
preventive maintenance where no damage repairs are made, does not
amount to a reportable accident within the scope and intent of
section 50.10.
In my view, if MSHA desires the definition of a reportable
"accident" to include hoisting equipment that is idled for more
than thirty minutes for ~ reason, it should take the
appropriate procedural steps to re-draft and amend the regulatory
definition found in section 50 . 2(h) (11) .
In view of the foregoing, I conclude and find that MSHA has
failed to establish any violations of section 50.10, by a
preponderance of the credible evidence adduced in these
proceedings. ACCORDINGLY, the contested citations ARE VACATED.
The parties agreed to hold the disposition of Citation No.
4546323 (Docket No . LAKE 96-89-RM) in abeyance pending my
decisions concerning section 50.10. The citation concerns an

2015

alleged violation of section 50.20(a), because of AKZO's failure
to submit MSHA Mine Accident, Injury, and Illness Report Form
7000-1, for hoist maintenance outages of more than thirty
minutes. In view of my findings that such hoist outages are not
reportable accidents, I conclude and find that AKZO was not
obliged to submit the form in question. ACCORDINGLY, the
contested citation IS VACATED.
Fact of violation.

Citation No. 4546276

The respondent is charged with a violation of 30 C.F.R.
57.llOSO(a), for allegedly failing to provide underground miners
with two properly maint.ained escapeways on December 24, 1995.
The cited production hoist, which was one of the escapeways, was
not available for use for approximately three hours and thirtyseven minutes while the hoist rope was being shortened. Section
57.11050(a), provides as follows:
(a) Every mine shall have two or more
separate, properly maintained escapeways to the
surf ace from the lowest levels which are so
positioned that damage to one shall not lessen the
effectiveness of the others. A method of refuge
shall be provided while a second opening to the
surface is being developed. A second escapeway is
recommended, but not required, during the
exploration or development of an ore body.
The parties stipulated that a planned shut down of the cited
hoist escapeway occurred on December 24, 1995, in order to
shorten all of the hoist ropes and to afford AKZO an opportunity
to challenge the application of section 57.11050(a). The
duration of the shut down was over three hours, no miners were
evacuated, and three miners (a mechanic, an electrician, and a
foreman) remained underground checking fans and pumps, and
performing maintenance on the service hoist. No salt extraction
occurred during the shut down and no cutting or welding was
taking place.
The Evolution of MHSA's Asserted uone-hour" Evacuation UPolicy"
Past "Policy"
I find no credible evidence of the existence of any written
MSHA National policy statements prior to the institution of the
instant litigation, concerning mandatory evacuation of the entire
mine for a violation of section 57.11050(a), if compliance is not
achieved within one hour, the fixing of an "automatic" one-hour
abatement time to achieve compliance, or the uniform enforcement
methods to be followed by MSHA inspectors when citing a mine
operator for a violation of· section 57.llOSO{a).
2016

The evidence establishes that on February 22, 1990, MSHA's
Metal/Non-metal North Central District Manager Salois issued a
memorandum concerning the interpretation and application of
section 57.llOSO(a), to be followed by his district inspectors
when citing mine operators in that district, including AKZO's
Cleveland Mine (Index of Exhibits, Tab G).
The Salois memorandum guidelines did not require the
immediate evacuation of miners if a hoist was unavailable for use
for more than one hour. In a planned hoist maintenance/repair
situation, if one of the hoists was disabled as a result of this
work, it was permissible to continue the work through the end of
the shift, with miners underground, as long as the second hoist
was available. The same rule essentially applied to unplanned
hoist repair shutdowns .
I take note of the fact that the Salois memorandum, at page
3, specifically noted the absence if any MSHA national policy for
"Mine Evacuation Related to Hoist Repairs/Maintenance Affecting
Two Escapeways," the subject of the memorandum. The memorandum
further noted, on the first page, that when cqmpared to five
other MSHA district practices, the practices in Mr. Salois'
district were "substantially different." Since Mr. Salois states
that his district should follow the other district practices and
since his memorandum was apparently issued to accomplish this, I
believe it is reasonable to assume that the other districts
followed a similar practice of allowing hoist repairs to be made
during a production shift, and through the end of the shift,
without requiring the immediate evacuation of the mine within an
hour of discovering that a hoist was in need of repair.
Mr. Salois testified that he withdraw his memorandum in
February, 1995, because he lacked the authority to establish
enforcement policy for his district and his policy was
inconsistent with MHSHA's national policy. Although Mr. Salois
indicated that prior to the issuance of his memorandum, miners
were required to be out of the mine when hoist maintenance was
performed, no evidence was produced to establish the existence of
any written MSHA policy requiring the evacuation of. miners .
Indeed, Mr. Salois stated that h~s understanding that mine
evacuation was required when hoist work was performed came from
what he "learned on the job." Fuit~er, although Mr. Salois
stated that other district managers informed him that his
memorandum was inconsistent with the policy they were following,
no credible evidence was produced to establish the factual
existence of any written policy in these other districts.
Supervisory Inspector Reitter, who never visited the AKZO
mine, testified that he first became aware of the Salois
memorandum after he became a supervisor in MSHA's Newark, Ohio
district, and he was unaware of the memorandum for the following

2017

year until it was called to his intention by AKZO at the time it
was rescinded . He confirmed that his inspectors were following
the policy, and that i f he were aware of it , he too would have
followed it.
Inspector Strickler, who inspected AKZO's mine , never saw
the Salois memorandum but heard about it from other inspectors in
his off ice who informed him that at one time miners were allowed
to work underground until the end of the shift. He stated that
this was contrary to the policy in Illinois where a mine operator
evacuated miners irrunediately. However , I find no evidence of the
actual existence of any such written policy.
Inspector Bilbrey testified that he never saw the Salois
memorandum, and learned about the unwritten policy for mine
evacuation when a hoist was out at a staff meeting and verbally
from his supervisors, including Mr . Reitter.
Inspector Backland, who also inspected AKZO ' s mine ,
testified that he was aware of the Salois memorandum in 1990, but
did not believe it was the pol icy in his district. He did ,
however, believe the stated "time elementu should be followed.
Mr. Gomez testified that he became aware of the Salois
memorandum a year ago .
He was concerned because it was contrary
to what he considered to be MSHA's policy. He explained that
wh en he served as manager of MSHA's Rocky Mountain District in
February 1990, his policy was to require mine evacuation if there
were no properly maintained escapeways.
If one escapeway was
down and could not be restored in one hour, a violation of
section 57.llOSO(a) , would occur. Mr. Gomez stated that he
contacted every past and present district managers to determine
if they had a policy such as the one stated in the Salois
memorandum, and he found no such policy. He further stated that
during the ~leven years he served as a district and subdistrict
manager, he was not aware of the regulatory interpretation stated
in that memorandum and he believed it was "internall y
inconsistent.u
Mr. Breland stated that he first saw the Salois memorandum
in the fal l of 1995 , during a meeting with AKZO representatives
and MSHA officials. He was never aware of any policy change as
stated in the Salois memorandum, and he always followed the
"instant violation and hour to abate" policy .
Mr. Breland alluded to an inquiry from MSHA ' s Dallas acting
manager over a year ago regarding any change in policy that would
not require the evacuation of miners under section 57 . llOSO(a) at
one of AKZO's mines in Lousiana when maintenance was performed on
a hoist . After consulting with Mr. Gomez , Mr. Breland advi sed
the manager that there was no policy change and miners would have

2018

to be evacuated.
If would appear to me that Mr . Breland's advice
to the manager was based on the Gomez letter of December 8, 1995.
The record includes a copy of a Morton Salt Company
memorandum dated March 10, 1980, stating an interpretation by
MSHA's Dallas District office with respect to the intent of
section 57.11-50. That interpretation is the same as the Salois
policy memorandum of February 22, 1990, allowing production to
continue until the end of the shift while the unavailable hoist
is again made available.
(Index of Exhibits, Exhibit D).
Mine Consultant Tiley initially testified that changing
hoist ropes wi th miners underground when there is only one
additional way out of the mine is a good mining practice and a
normal process in the worldwide mining community . He later
corrected himself and indicated that the practice of allowing
miners to remain in a two shaft mine when one of the hoists is
down applied to Canadian miners and not to U.S. miners. He was
aware of MSHA's "one-hour" rule requiring mine evacuation if a
hoist is down for more than an hour and he believed that this was
the practice in American mines.
Mine consultant Head testified that the evacuation of miners
from a two-hoist mine if one of the hoists is out of service for
more than an hour is standard practice among several MSHA
districts. He confirmed that many mine operators recognized that
this was a policy change that occurred in the past two or three
years, and that the prior policy followed in Mr. Salois' North
Central District, did not pose an evacuation problem until the
end of the shift. Mr. Head further confirmed that the prior
practice in a two-hoist mine allowed work to continue until the
end of the shift if one hoist was unavailable, and immediate
evacuation was not required.
Present "Policy"
MSHA's position is that the Gomez letter of December 8,
1995, to AKZO's counsel constitutes the prevailing definitive
interpretations of section 57.11050 . Notwithstanding the absence
of any regulatory language requiring the evacuation of miners
within one hour for non-complianGe, MSHA relies on the Gomez
interpretation to support the cited violation of section
57.11050(a). The relevant portion of the letter states as
follows:
With respect to ~he escapeway issue, 30
C.F.R. 57.11050 requires that producing mines have
two or more escapeways from the lowest level of
the mine to the surface. The standard also
requires that a method of refuge be provided for

2019

all underground miners who can not reach the
surface within 1 hours using both of the
escapeways.
During the March meeting we discussed the
need for evacuating miners from the Cleveland
Mine, or any other mine, during hoist outages when
the minimum requirements for escapeways could not
be met because the hoist was unavailable for use
in one of the two escapeways.
We believe that the standard does not
authorize maintenance to interefere with a mine
operator's ability to use the hoist in the event
of an emergency if it is part of, or one of, the
two required escapeways.
We also informed AKZO officials at the March
meeting that, as a practical application of this
standard, if a hoist could be returned to service
within 1 hour of the need to be used then
evacuation of the mine would not be required.
This action would comply with the 1-hour time
provided for in 30 C.F . R. 57.11050(b) and the
requirement to have two escapeways available .

* * * *
* * * * Put another way, we believe that the
language and clear intent of the standard
indicates that routine maintenance is allowed with
miners underground, if, at all times, a hoist can
be reactivated and miners withdrawn from the mine
within 1 hour. Your second conclusion that the
mine need not be evacuated, regardless of the
length of a hoist outage so long as it could be
placed back into service and miners withdrawn from
the mine within 1 hour, is correct.
The Gomez letter is a private communication to AKZO's
counsel Savit in response to his request of November 6, for an
explanation of MSHA's interpretation of section 57.110509 (Index
of Exhibits, Tab N) . The record reflects that the Gomez
response was prepared unilaterally and was not shared with other
members of the mining community, and its contents have
apparently never been reduced . to other written form or included
as part of MSHA's enforcement guidelines or policy manuals.
Indeed, MSHA's policy with respect to section 57.11050, as
stated in the manual, has apparently not been revised or updated
since 1988.

2020

The record further reflects that prior to the
November/December 1995, exchange of the aforementioned
correspondence, a legal assistant in Mr . Savit's firm, in a
letter dated September 11, 1995, to the Secretary ' s sol icitor ' s
office in Arl ington, Virginia, requested a copy of the proposed
section 57 . 11050, program directive referred to in the Potash
decision of January 19 , 1982, as well as other explanatory
memorandums dealing with that regulation {Index of Exhibits ,
Exhibit L) . The letter was referred to Mr. Gomez ' s office, and
it was answered on October 20, 1995, by letter from Mr. C .
Narramore, who signed it for Mr. Gomez . The response included a
page from MSHA's July 1 . 1988, Program Policy Manual regarding
section 57 . 11050, and statements that copies of the requested
memorandum could not be located, and that they were superceded
by the program policy.
Apart from the Gomez letter, there is no evidence that the
interpretation stated by Mr . Gomez is in fact reduced to any
other written form as a means of notifying mine operators about
MSHA's mine evacuation and abatement requirements, or providing
guidelines or procedures for MSHA's inspectors to follow when
inspecting and citing mine operators for violations of section
57.llOSO(a).
Inspectors Foster , Reitter, Strickler, Bilbrey , and
Backland all confirmed that section 57 . 11050(a) , contains no
language requiring mine evacuation in the event a disabled hoist
escapeway could not be put back in service within one hour, and
they were unaware of any regulation that required automatic mine
evacuation within any particular time frame.
With regard to
their understanding of what is required pursuant to section
57.11050(a) , there appears to be inconsistent, uncertain, and
confusing enforcement practices among MSHA's inspectors as to
the interpretation and application of this regulation, examples
of which follow below.
Inspector Reitter, who has never been in the mine , but who
nonetheless "supervisedn Mr. Foster in issuing the citation, was
unaware of any written MSHA directive (except the Gomez letter)
requiring mine evacuation. His belief that one of two hoist
escapeways could be unavailabl~ for one hour was based on the
one-hour normal life of a self rescue device, and "word of
mouth" discussions with other inspectors.
Inspector Bilbrey believed that when section 57 . llOSO(a),
is cited because a hoist is unavailable and cannot be returned
to service within one hour, evacuation must begin . However, he
further believed that a mine operator had a "floating timen
frame to determine that the hoist cannot be restored to service .
He explained that one hour would be allowed to make the initial
unavailability determination, and that evacuation could begin

2021

during the next hour. He confirmed that there is no written
policy supporting his interpretation.
Inspector Backland believed that in the event of a "planned
maintenance situation," if it takes more than one hour to repair
a hoist evacuation must begin. His belief in this regard
"relates" to the one-hour life of a self rescue device , and he
confirmed that there is no MSHA written policy in this regard.
However, he believed it is district policy, but could not recall
who advised him of this.
MSHA's Safety Division Chief Breland's interpretation that
section 57.11050(a), requires the evacuation of the mine within
one hour after non-compliance is based on his understanding of
subsection (b), the one-hour life of a self rescuer, and MSHA's
fire evacuation standards . However, Inspector Strickler
testified that a fire that is out of control for more than 30
minutes must be reported, but no evacuation of the entire mine
is required, and a separate order would be required to achieve a
mine evacuation.
Inspector Foster's "one-hour" evacuation interpretation is
based on the one-hour oxygen supply of a self rescue device, his
"experience" in coal mines, and conversations with fellow
inspectors and supervisors.
Inspector Strickland believed that if a hoist were down for
30 minutes, and could not be restored within the next 30
minutes, evacuation must begin . He was not aware of any MSHA
"one-hour evacuation" policy, and he based his belief in this
regard on the one-hour self rescue device, and his "experience"
and conversations with other inspectors .
Mr. Salois testified that he was not aware of any written
MSHA National policy determination concerning section 57.11050,
but that based on what he "learned on the job, miners have to be
evacuated when hoist work is performed." He believed that the
regulation required two separate escapeways at all times, and if
only one was available , this would constitute non-compliance.
Although Mr. Salois claimed ignorance of any section
57.11050(a) national policy, Mr. Gomez stated that his December
8, 1995, letter states the current enforcement mine evacuation
policy for non - compliance . However, contrary to his earlier
testimony concerning the policy aspects of his letter, Mr. Gomez
later testified that his l ett~r does not state any policy and
that he does not a l ways issue policy when answering letters of
inquiry.
In explaining further, Mr . Gomez stated there are
different methods and ways of handling and instituting agency
policy, and he cited his letter as one of these methods.
I find
his explanation to be confusing and contradictory .

2022

The record further reflects a variety of methods that
inspectors would follow in citing violations of section 57.
11050(a), and requiring abatement.
Inspector Strickland did not
believe that section 104(a) required the withdrawal of miners
while abatement is ongoing, and he confirmed he had no authority
under section 104(a) to order mine evacuation.
However, based
on his "experience,u he believed that section 57.11050(a),
authorized him to evacuate a mine and that a separate order was
not required.
He also believed that a one-hour abatement time
is reasonable based on the one-hour useful life of a self
rescuer.
Inspect o r Bilbrey questioned his authority to require mine
evacuation.
Inspector Reitter believed that a section 104(a) or
(d) citation does not require withdrawal from a cited area.
However, if a hoist were unavailable for one hour, he would
issue a section 104(a) citation, with a short abatement time,
and would require mine evacuation by issuing a section 104(b)
order if the hoist could not be restored to use within the hour.
Mr. Salois would achieve compliance with section
57.11050(a), by issuing a section 104(a) or (d) citation if
there were no imminent danger, and he would fix the abatement
time at one hour.
Inspector Foster confirmed that a section 104(a) citation
does not require the withdrawal of miners, and he conceded that
there is no language in section 57.11050(a), requiring mine
evacuation i n the event of non-compliance. However, in the
instant case, he considered the section 104(a) citation that he
issued to be a withdrawal order with a one-hour abatement time
regardless of the condition of the hoist, and without regard to
the other work being performed underground, or the likelihood of
a fire.
I n ote from the pleadings however, that the citation be
issued was issued at 8:03 a.m., on January 25, 1996, and he
fixed the abatement at 5:00 p.m . , the next day, January 26,
1996.
Inspector Strickler initially indicated that the fixing of
a reasonable abatement time is ieft to the inspector's
discretion after consultation with the mine operator as to the
time it would take to correc t the condition.
He later indicated
that a reasonable time for abatement would be one hour based on
the useful life of a self rescuer.
Mr . Salois indicated that he would fix the abatement time
at one hour, and would extend the time to focus on other
problems, but only after the mine was evacuated.
He further
stated that a one-hour abatement time is reasonable regardless
of the circumstances, and that based on section 57.llOSO(a), an
inspector has no discretion to grant more than an hour for

2023

abatement because two properly maintained escapeways would not
be available.
Mr . Breland believed that one-hour is a reasonable
abatement time because "that is what we expect in the
evacuation, 11 without regard to how long it might take to reapir
a hoist or the number of people underground.
Mr. Backland believed that all of the circumstances
presented must be evaluated in fixing a reasonable time to abate
a violation .
Mr. Gomez suggested that an inspector could issue a
citation with a "short 11 abatement time of less than one hour,
followed by a section 104(b) withdrawal order . He was of the
opinion that the absence of two functional escapeways
constituted a ~ ~ imminent danger, and he would achieve
compliance by initially issuing a section 104(a) citation,
followed by an imminent danger order if a cited unavailable
hoist was not restored to use within one hour.
The Gomez letter, at page 4, quotes a passage from Judge
Hodgdon's decision in Savage Zinc, Inc., 17 FMSHRC 279,290
(March 1995), addressing the "S&S hazard in failing to have two
escapeways. In that case, Judge Hodgdon affirmed a violation of
section 57.llOSO(a), after concluding that the mine had only one
escapeway.
I take note of the fact that contrary to MSHA~s
asserted policy of requiring mine evacuation within one hour in
the absence of at least two escapeways, and the automatic onehour abatement rule, the inspector in the Savage Zinc case
issued a citation, did not require the immediate evacuation of
miners, and fixed the abatement time at ~month, not one hour.
I further note that the citation was issued on October 14, 1994,
prior to the January 8, 1995, Gomez letter.
In any event, the
failure to immediately evacuate the mine, and allowing 30 days
to abate appears to be contrary to Mr . Gomez' avowed "longstanding" policy of immediate mine evacuation and short, onehour abatement in the absence of two available escapeways.
11

MSHA's reliance on subsection {b) of section 57.11050, as
its authority for requiring evacuation of the entire mine if one
of the two escapeway hoists is unavailable for more than one
hour is rejected . Subsection (b}, on its face, does not provide
for any mine evacuation . Indeed, the plain language of
subsection {b) provides for refuges, not evacuation, if miners
cannot reach the surface within an hour by using the escapeways
provided by subsection (a}. AKZO is not charged with a
violation of subsection (b}. In any event, it is my view that if
the rule makers had intended to require the evacuation of the
entire mine, they would have clearly included this as part of
the regulation.

2024

MSHA's assertion that section 104(c) of the Act supports
its belief that all miners are required to be evacuated from the
mine when one of the two escapeways is unavailable . for use
because that section allows only the miners needed to correct
the escapeway deficiency to be present in the affected mine
areas is not well taken, and is rejected .
In my view, section
104(c) of the Mine Act provides no independent evacuation or
withdrawa l authority or requirement. That section must be read
in conjunction with the citation/order scheme found in section
104, and comes into play when a citation or withdrawal order
requiring abatement is issued.
In the instant case, the
violation was issued as a section 104(a) non-"S&S" citation.
MSHA's suggestion, at page 8 of its initial responsive
brief, that no time for abatement is reasonable because AKZO
"intentionally" created the violation in order to test the
application of section 57.11050(a), and "knowingly" violated the
law is not well taken and is rejected . AKZO specifically
informed MSHA of its intentions, and MSHA willingly accommodated
AKZO.
In short, I conclude and find that MSHA was a cooperative
and knowing participant, and cannot now complain and seek
additional punishment against AKZO. I find nothing to suggest
that MSHA ever initiated any section llO(c) proceedings against
AKZO officials for any "knowing" violations .
Further, the
alleged violation was issued as a section 104(a) non-"S&S"
citation, and AKZO was never charged with any aggravated or
unjustifiable or inexcusable conduct for any unwarrantable
failure noncompliance.
I disagree with MSHA's assertions that its requirements
pursuant to section 57.llOSO(a) are clear and unambiguous , and
that a reasonably prudent person familiar with the mining
industry understands them. Apart from the Gomez letter of
December 8, 1995, which admittedly was not shared with other
mine operators, there is no evidence that MSHA has ever
published its contents as part of its policy manual, inspector
guidelines, or in any communications to the mining community at
large.
It seems obvious to me from the testimony in this case
that the inspectors themselves do not have a clearly defined and
consistent understanding with respect to the interpretation,
application, and enforcement of section 57. 1 1050(a). Except for
.a.Q ~ interpretations, "word-of-mouth" advice, and possibly a
copy of the Gomez letter, it does not appear that MSHA's
districts and inspectors have at their disposal a clearly
defined written official agency enforcement policy to follow,
particularly with respect to the issuance of citations and
orders, and the fixing of abatement times.
I find nothing in section 57.11050(a), that supports MSHA's
position that mine evacuation must begin immediately if one of

2025

the two designated hoist escapeways is unavailable for more than
one hour, nor do I find support for MSHA's position that the
cited hoist was not properly maintained because it was
unavailable for more than one hour.
I conclude and find that the regulatory language requiring
the positioning of escapeways so that damage to one shall not
lessen the effectiyeness of the others recognizes the fact that
one escapeway in a two escapeway mine may not always be
available at all times because of damage. I believe that this
would also apply to a situation where a hoist is taken out of
service for maintenance to insure that it is kept in a properly
maintained condition.
In the instant case, the cited condition or practice
includes a finding that during part of the time the cited
production hoist was out of the service, .the primary service
hoist was also out of service for a maintenance procedure which
did not result in its use being interfered with for oyer 30
minutes. Since there is no evidence that the service hoist was
damaged, or t~at its use was interfered with for more than
thirty minutes pursuant to section 50.2(h) (11), I cannot
conclude that the fact the production hoist was out of service
lessened the effectiveness of the service hoist within the
meaning of section 57.11050(a).
I conclude and find from the record in this case, that
prior to the December 8, 1995, Gomez letter, MSHA's inspectors
in the North-Central pistrict, and probably other districts,
followed an apparent long standing practice of .ll.Q.t. requiring the
evacuation of miners working underground when only a single
escapeway was available during a shift. This practice allowed
production to continue until the end of the shift, provided
miners were notified that only one escapeway was available and
they agreed to continue working until the end of the shift, and
provided the next shift was. not permitted to go underground
until the second escape'way was repaired.
In the instant case, the cited production hoist · was out of
service for maintenance, and I find credible AKZO's assertion
that the rope shortening work w~s being done to insure continued
compliance with the regulatory requirement that the hoist be
properly maintained. I find it reasonable to conclude that if
MSHA were following its pre-Gomez letter policy, a citation
would not have been issued and work wou~d have been allowed to
continue until the end of the shift until the unavailable hoist
was restored to service.
After further careful review and consideration of the
arguments presented by the parties, I agree with AKZO's position

2026

that MSHA's automatic one-hour mine evacuation requirement, a
requirement clearly not contained in cited section 57.11050(a),
is a significant departure from MSHA's apparent prior practice
that has a substantial adverse impact on AKZO's mining rights
and compliance obligations. The same can be said for MSHA's
automatic · one-hour abatement practices that appear to be
contrary to Commission precedents. MSHA's requirement pursuant
to section 57.11050(a), creates and imposes new compliance
obligations on AKZO, under pain and penalty of-immediate mine
closure, with little or no discretion left to . the inspector not
to require mine evacuation in the event a hoist that is
undergoing routine preventive maintenance in order insure its
"properly maintained" condition is not returned to service
within an hour . Under these circumstances, I conclude and find
that the Gomez letter is more than a general explanatory or
interpretative statement regarding the application of section
57.11050(a). I conclude and find that the letter constitutes a
substantive rule subject to APA notice, comment, and publication
requirements. ~: Drummond Company. Inc., 17 FM.SHRC 661 (May
1992) .
Based on the entire record before me in this case, I
conclude that MSHA's interpretation and application of section
57. 11050(a), goes well beyond the regulatory languages found in
that section, and constitutes an unreasonable and impermissive
enforcement reach that is not entitled to deference.
In view of the foregoing findings and conclusions, I
conclude and find that MSHA has failed to establish a violation
of section 57.11050(a), by a preponderance of the credible and
probative evidence adduced in this proceedings. Accordingly,
the contested citation IS VACATED.
ORDER

In view of the foregoing, IT IS ORDERED as follows:
1). Section 104(a) non-"S&S" Citation Nos.
4100787, November 28, 1995, and 4546275, January
25, 1996, citing alleged violations of 30 C.F.R.
50.10, ARE VACATED.
.
2). Section 104(a) non-"S&S" Citation No.
4546323, January 25, 1996, citing an alleged
violation of 30 C.F.R. 50.20(a), IS VACATED.
3). Section 104(a) non-"S&S" Citation No.
4546276, January 25, 1996, citing an alleged
violation of 30 C.F.R. 57.llOSO(a), IS VACATED.

2027

4) . MSHA's proposed civil penalty assessments of
$600, for citation No. 4546275, and $400 for
Citation No . 4546323 in Docket No . LAKE 96-125-M,
ARE DENIED and DISMISSED .

~tfo~

Administrative Law Judge

Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U. S. Dept. of
Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
Mark N. Savit, Esq . , Ruth L . Ramsey, Esq . , Patton Boggs, L.L.P.,
2550 M Street, N.W., Washington, D.C . 20037-1350 (Certified Mail)
\mca

2028

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law J udges

5203 LEESBURG PIKE SUITE I 000
FALLS CHURCH VA 22041

NOV 2 0 1996
BOBBY JOE HENSLEY,
Individually, and
DAY BRANCH COAL COMPANY,
Contestants

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

CONTEST PROCEEDINGS
Docket No.
KENT 94-1005-R;
KENT 94 - 1006-R;
KENT 94-1007-R ;
KENT 94-1008-R;
KENT 94-1009 - R;
KENT 94-1010-R;
KENT 94-1011-R;
KENT 94-1012-R;
KENT 94-1013-R;
KENT 95-492-R;

Cit/Order No.
4489701; 6/13/94
4489702; 6/13/94
4489703; 6/13/94
4489704; 6/13/94
4489705; 6/13/94
4489706; 6/13/94
4489707; 6/13/94
4489708; 6/13/94
4489709; 6/13/94
4246556; 3/13/95

Mine No. 9
Mine I . D. No. 15-16418
DAY BRANCH COAL COMPANY,
Contestant

CONTEST PROCEEDINGS

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

Docket No.
KENT 95-147-R;
KENT 95-148-R;
KENT 95-149-R;
KENT 95-150-R;
KENT 95-151-R;
KENT 95 - 152 - R;
KENT 95-153-R;
KENT 95-154 - R;
KENT 95-155-R;
KENT 95 - 156-R;
KENT 95-157-R;
KENT 95-158-R ;
KENT 95-159-R;
KENT 95-160-R;
KENT 95-161 - R;
'KENT 95-162-R;
KENT 95-163-R;
KENT 95-164 - R;
KENT 95-165-R;
KENT 95-166-R;
KENT 95-167-R;
KENT 95 - 168-R;
KENT 95-169-R;
KENT 95-170-R ;

2029

Cit/Order No.
4246694; 11/7/94
4246695; 11/7/94
4246696 ; 11/7/94
4246697; 11/7/94
4246698; 11/7/94
4246699; 11/7/94
4246700; 11/7/94
4246861; 11/7/94
4246862; 11/7/94
4246863; 11/7/94
4246864; 11/7/94
4246865; 11/7/94
4246866; 11/7/94
4246867; 11/7/94
4246868; 11/7/94
4246869; 11/7/94
4246870; 11/7/94
42 4 6871; 11/7/94
42 4 6872; 11/7/94
424 7425; 11/7/94
42 4 74 26; 1 1 /7/94
4247427; 11/7/94
4247428; 11/7/94
4247429; 11/7/94

KENT 95-171-Ri
KENT 95-172-R;
KENT 95-173-R;
KENT 95-174-R;
KENT 95-175-R;
KENT 95-176-R;
KENT 95-177-R;
KENT 95-178-R;
KENT 95-179-R;

4247430i
4247433;
4247434;
4247435;
4247436;
4247437;
4247438;
4247439;
4247440;

11/7/94
11/7/94
11/7/94
11/7/94
11/7/94
11/7/94
11/7/94
11/7/94
11/7/94

Mine No. 8
Mine I.D. No. 15-16439
Docket No.
KENT 95-180-R;
KENT 95-181-R;
KENT 95-182-R;
KENT 95-183-R;
KENT 95-184-R;

Cit/Order No.
4246821; 11/10/94
4246822; 11/10/94
4246823; 11/10/94
4246824; 11/10/94
4246825; 11/10/94

Mine No. 9
Mine I.D . No . 15-16418
BOBBY JOE HENSLEY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Respondent
I

CONTEST PROCEEDINGS
Docket No .
KENT 95-185-R;
KENT 95-186-R;
KENT 95-187-R;
KENT 95-188-R;
KENT 95-189-R;

Cit/Order No.
4246821; 11/10/94
4246822; 11/10/94
4246823; 11/10/94
4246824; ll/10/94
4246825; 11/10/94

Mine No.
9
Mine I.D. No . 15-16418
ORDER OF DISMISSAL
Before:

Judge Fauver

These are Notices of Contest under section 105(d) of the
Federal Mine Safety and Health Act . of 1977, 30 U.S.C. §§ 801
~ ~- The Secretary of Labor has moved for dismissal ·on the
ground that Contestants fai led to request a hearing upon receipt
of the penalty proposals.
It appears from the record that proposals fo r assessment of
civil penalties regarding the above citations/orders were made to

2030

both Contestants in 1995 . 1 No responses were made to the
proposals and by operation of the Commission's Procedural Rule
2700 . 27 (29 C.F.R. § 2700.27), the proposals became final orders
of the Commission .
Contestants move for relief from application of Rule 2700 . 27
on the ground that the operator's counsel did not receive a copy
of the proposals.
It appears from the pleadings that Contestants
were served at their designated address : P.O . Box 204, Cawood, KY
408915, and that the postal receipts for the proposals were
received by Contestants and signed for by Betty Cassim.
The Secretary opposes the motion and states that MSHA does
not serve operators' counsel with proposals for assessment of
civil penalties and the applicable regulation requires
service of a proposed penalty on the operator at its designated
address .
I find that Contestants have not set forth a sufficient
reason for relief from the application of Rule 2700 . 27 .
Accordingly, it is ORDERED that the Motion to Dismiss is
GRANTED, and these proceedings are DISMISSED .

(;~~.,.__

William Fauver
Administrative Law Judge

1

The Secretary states in his Reply to Contestants'
Response
to the Motion to Dismiss that he' did not propose assessment of a
civil pena l ty against Joe Hensley individually with regard to
Citation No. 4246556 and that Day Branch Coal Company received a
proposed penalty of $50 (A.C. 15-16418-03569) . The Secretary
fu r ther states that he waives his right to proceed against Joe
Hensley concerning such citation , "in the interest of
facilitating disposal of these cases . "

2031

Distribution:
Mr. Bobby Joe Hensley, P.O. Box 204, Cawood, KY 40815 (Certified
Mail)
Mark R. Malecki, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)
/nt

20 32

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

November 21, 1996

JAMES M. RAY, employed by
LEO JOURNAGAN
CONSTRUCTION,
Applicant

EQUAL ACCESS TO JUSTICE
PROCEEDING
Docket No. EAJ 96-4

v.

Formerly CENT 96-53-M

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

Journagan Portable #12 MO

DECISION
Before: Judge Fauver
James M. Ray filed an application for attorney fees and
litigation expenses against the Secretary of Labor (MSHA)
under the Equal Access to Justice Act (EAJA), 25 U. S.C . §
504 , based upon the outcome of the Secretary's civil penalty
case against him under § llO(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et~- (Docket No .
CENT 96-53-M) .
The EAJA provides for the award of attorney fees and
other expenses to a "prevailing party" against the United
States or an agency unless the position of the government
"was substantially justified or .. . special circumstances
make an award unjust."
I ..

Judge's Findings in CENT 96-53-M
Citation No. 4329462
The judge found that on March 28, 1995, Federal Mine
Inspector Michael Marler inspected the Journagan Portable
#12 portable crusher in southwestern Missouri . While he was

2033

on the site, rocks became stuck in the crusher. He observed
a miner, Steve Catron, straddling the opening to the crusher
and trying to dislodge rocks with a metal bar about five to
six feet long. The opening of the crusher was about six
feet deep. T~e jammed rocks extended about two feet from
the jaws of the crusher. The superintendent of the
operation, James M. Ray, was with the inspector.
The crusher was not turned on, but the electric power
to the crusher was not shut off and loc ked out . Catron was
straddling the crusher while standing on metal plates about
two feet above the jaws of the crusher. He was wearing a
safety belt with a lifeline attached to a catwalk railing
above him. The judge found that if Catron fell, his fall
would be limited to 1- 1 /2 to 2 feet . His feet "could
possibly have brushed the movable jaw but it was unlikely
that he would be injured" by the jaw.
Another employee, Keith Garoutee, was standing at the
doorway of a power shed that controlled the power to the
crusher. After Catron tried to dislodge the rocks, he would
disconnect his lifeline and step up on a metal plate about
1-1/2 feet above his original position.
He would then
connect the lifeline to a point above and behind him and
signal Garoutte to start the crusher to see if it would
operate.
If it was still jammed, he would signal Garoutee
to turn off the crusher and he would disconnect his lifeline
and step down to his original position , reattach the
lifeline to the catwalk railing and again try to dislodge
the rocks .
Ray was familiar with the above procedure. The company
had been following this practice before Ray was employed
there, and Ray had seen the employees dislodge rocks this
way before the inspection on March 28.
Inspector Marler issued Citation/Order No. 4329462 ,
charging the company with a viqlation of 30 C.F.R. §
56.12016, which provides:
Electrically powered equipment shall be
deenergized before mechanical work is
done on such equipment. Power witches
shall be locked out or other measures

2.034

taken which shall prevent the equipment
from being energized without the
knowl edge of the individuals working on
it . ...
After the inspection on March 28, the Secretary
conducted a special investigation under§ llO (c) of t he Mine
Act to determi ne whether Ray should be charged with
liabi l ity as an agent of the corporation . The Secretary
decided to bring charges against Ray individually .
The Sec retary proposed a $4,000 civil penal ty against
the company and a $1,500 penalty against Mike Ray .
Citation No . 4329463
When the withdrawal order was issued on March 28, Ray
shut off the power to the crusher, and he and the inspector
went to the crusher. They observed Catron and Garoutte
inside the crusher shute removing rocks. Above the miners,
the hopper was 3/4 full with about 25-30 tons of rocks piled
at an angle of about 35 degrees. The judge found that the
rocks , which extended to within a foot of the miners, ranged
in size from dust particles to stones two inches in
diameter. There was no barrier between the rocks and the
crusher . Inspector Marler considered this to be an imminent
danger of rocks sliding into the crusher shute and on top of
the miners . Accordingly, he issued Citation/Order No .
4329463, which charged the company with a violation of 30
C.F . R. § 56 . 16002(a) , which provides :
Bins, hoppers, silos, tanks, and surge
piles, where loose unconsolidated
materials are stored, handled or
transferred shall be(1) Equipped with mechanical
devices or other ~ffective means
of handling materials so that
during normal operations persons
are not required to enter or
work where they are exposed to
entrapment by the caving or
sliding of materials ....

2035

After a special investigation under§ llO(c), the
Secretary charged Ray individually for this violation.
The Secretary proposed a civil penalty of $4,500
against the company and a penalty of $1,500 against Ray.
II.
Judge's Decision in CENT 96-53-M
The judge held that the company violated§ 56.12016 .
He reasoned that the plain language of the standard applied
to the crusher operation and the "fact that miner Catron was
tied off at almost all times when he was above the energized
crusher is not relevant to the issue of whether the standard
was violated." The judge found that the violation was not
significant and substantial because "there was no reasonable
likelihood that the hazard contributed to by Journagan's
violation would result in injury." He assessed a penalty of
$500 against the company for this violation.
The judge ruled that Ray was not subject to a civil
penalty for the violation of § 56.12016. He reasoned that,
although Ray "clearly had reason to know that his employees
would be working on the crusher without it being deenergized
. ... , his conduct was not aggravated." The judge found that
the procedure followed by the employees was not a practice
initiated by Ray, but was a company policy in place before
Ray was hired.
The judge also stated:
"More importantly, I
find that Ray had a reasonable good faith belief that miners
were adequately protected by wearing a safety belt that was
tied off above them. Mr. Catron was tied off for all but a
very brief period, during which it was very unlikely he
would fall and that the jaw of the crusher would move . " The
judge vacated the penalty proposed against Ray as to
Citation No . 4329462.
The judge held that the Secretary failed to prove a
violation of § 56.16002(a) . He found that the Secretary had
not proved that the 25-30 tons of rock above the miners "had
not reached an angle of repose" and that the company's
"evidence tends to prove that the rocks would not slide."
Accordingly, he vacated Citation No. 4329463.

2036

III.
Disposition of Issues Under
Egual Access to Justice Act
The Secretary has moved to dismiss the application on
the ground that it was not filed within 30 days of the final
disposition in the adversary adjudication. 1 The judge's
decision in the Mine Act case was on June 7, 1996. The
application was filed on July 8, 1996 . Under the
Commission's Rules of Procedure, the date of the judge 's
decision is excluded in computing the time .
29 C.F.R. §
2700.8 . Accordingly, day 1 is June 8 and day 30 is July 7.
Since July 7 was a Sunday, the rule requires the period to
run to the end of the next business day, July 8 . Therefore,
the application was timely filed .
The Equa l Access to Justice Act, 5 U. S.C. § 504
(administrative agency actions) and 28 U.S.C . § 2412 (civil
actions), was passed in 1980. The legislative history of
the act reflects the intent of Congress to help individuals
and small businesses defend against unreasonable government
actions.
The House Report of the Judiciary Committee on the
1980 bill provides :
[The EAJA] rests on the premise that
certain individuals, partnerships,
corporations and labor and other
organizations may be deterred from
seeking review of, or defending against
unreasonable governmental action because
of the expense involved in securing the
vindication of their rights. The
economic deterrents to contesting
governmental action are magnified in
these cases by the disparity between the
resources and expertise of these
individuals and the government. The
purpose of the bill i~ to reduce the
1

5 U.S.C. § 504 (a) (2) states: "A party seeking an award of
fees and other expenses shall, within thirty days of a final
disposition in the adversary adjudication, submit to the agency
an application .. .. "

2037

deterrents and disparity by entitling
certain prevailing parties to recover an
award of attorneys fees, expert witness
fees and other expenses against the
United States, unless the Government
action was substantially justified.
H.R. Rep . 96-1418 , 96~ Cong. , 2~ Sess. (1980). Congress
was concerned that parties with limited resources were
allowing unjust agency actions to go uncontested because
"[w]hen the cost of contesting a Government order, for
example, exceeds the amount at stake, a party has no
realistic choice and no effective remedy .
In these cases ,
it is more practical to endure an injustice than to contest
it." Id.
The report further notes that the rapid growth in
government regulations, combined with the increasing
inability of ordinary citizens to defend against unreasonable charges, results in a situation where "at the
present time , the Government with its greater resources and
expertise can in effect coerce compliance with its
position . " Id;
The EAJA as originally written was to expire in October
1984, but Congress made the law permanent in 1985 through
Pub . L. No . 99-80, 99 stat . 183 . Referring to agency
actions, the Act states:
An agency that conducts an adversary
adjudication shall award, to a prevailing
party other than the United States, fees
and other expenses incurred by that party
in connection with that proceeding,
unless the adjudicative officer of the
agency finds that the position of the
agency was substantially justified or
that special circumstances make an award
unjust. Whether or not the position of
the agency was substantially justified
shall be determined on the basis of the
administrative record, as a whole, which
is made in the adversary adjudication for
which fees and other expenses are sought.
[5 U. S.C. § 504(a) (1) . ]

2038

Under the case law, "substantially justified" means
"justified to a degree that could satisfy a reasonable
person, or having a "reasonable basis both in law and
fact." Pierce v. Underwood, 487 U.S . 552, 565 (J988).
In
Pierce, the Supreme Court rejected a higher st~ndard and
held that "as between the two commonly used connotations of
the word 'substantially,' the one most naturally conveyed by
the phrase ['substantially justified'] is not 'justified to
a high degree,' but rather 'justified in substance or in the
main' - that is, justified to a degree that could satisfy a
reasonable person." Ibid. The Supreme Court also held that
a loss on the merits is not equated with a lack of
substantial justification, recognizing that the government
"could take a position that is substantially justified, yet
lose ." Pierce, 487 U.S . at 569 . The government is not
required to show that its decision to litigate was based on
a substantial probability of prevailing. Different triers
of fact may view conflicting evidence differently. However
the government has the burden of showing that its position
was reasonable in law and fact .
11

The basic issue is whether, based on the information
available to the government, the charges had a reasonable
basis in law and fact.
The government's§ llO(c) investigation , before charges
were brought against Ray, indicated that when Inspector
Marler observed miner Catron straddling the crusher,
his
safety l ine was not taut but was looped down with slack
several feet long. Exhibit A (See's Response in Opposition
to Application) and hearing Tr. pp . 33 and 249. On these
facts, if the miner fell his feet could become entangled in
the crusher . Also, the safety line would offer no
protection against an injury caused by the bar striking the
miner or by rocks sliding down on the miner if the crusher
were suddenly reactivated. The investigation also disclosed
that Superintendent Ray had been cited earlier for failing
to lock out a power circuit when doing mechanical work on a
conveyor belt, and that Ray wa~ ' the superintendent of the
mine, the sole supervisor on the property, and a
professional with a B.S . in mining engineering.

Section llO(c) of the Mine Act provides:
Whenever a corporate operator violates
a mandatory health or safety standard or
knowingly violates or fails or refuses to
comply with any order issued under this
Act or any order incorporated in a final
decision issued under this Act . . . , any
director , officer, or agent of such
corporation , who knowingly authorized,
ordered, or carried out such violation,
failure, or refusal shall be subj~ct to
the same civil penalties, fines, and
imprisonment that may be imposed upon a
person under subsections (a) and (b) .
The Commission has held that the term "knowingl y" as
used in§ llO(c) of the Mine Act "does not have any meaning
of bad faith or evil purpose or criminal intent. Its
meaning is rather that used in contract law, where it means
knowing or ha~ing reason to know. *** If a person in a
position to protect employee safety and health fails to act
on the basis of information that gives him knowledge or
reason to know of the existence of a violative condition, he
has acted knowingly and in a manner contrary to the remedial
nature of the statute . " Kenny Richardson v. Secretary of
Labor, 3 FMSHRC 8 (1981), aff ' d, 689 F.2D 632 (6th Cir .
1982), cert . Denied, 461 U.S. 928 (1983).
The Commission has also held that a "knowing" violation
under§ llO(c) requires proof of "aggravated conduct," which
means greater than ordinary negligence. Bethenergy Mines,
14 FMSHRC 1232 (1992).
The Secretary's investigation of the alleged violation
of § 56 . 12016 provided a reasonable basis in law and fact
for charging Mike Ray with liability under§ llO(c) of the
Mine Act . There was evidence that Mike Ray ' s practice was
to ignore § 56 . 12016 if he decided that the procedure
followed by the miners was not hazardous. Ray had been
cited earlier for a similar violation . Section 56.12016 is
plain and unambiguous.
It requires deenergizing the power
circuit on equipment when doi~g mechanical work.
It does
not provide or imply that a substitute method may be used,

2040

such as relying on an employee to stand guard over the
controls. A trier of fact could reasonably hold that Ray,
as superintendent of the rock- crushing operation, served
both as a role model for the work force and the leader
accountable for complying with mandatory safety standards .
In light of Ray's prior citation for a similar violation of
§ 56 . 12016, a trier of fact could also reasonably find that
Ray acted deliberately in ignoring the safety requirement to
deenergize the crusher and his act constit~ted "aggravated
conduct." The fact that the judge in the mine case held it
was not aggravated conduct does not mean that another judge
may not have viewed the evidence differently.
The government's investigation of the alleged violation
of§ 56.16002(a) also provided a reasonable basis in law and
fact for charging Ray with l iability under§ llO(c) . The
investigation disclosed that the investigator had observed
two miners working in the crusher opening with rocks up to
their chests. The rocks were small to very large and were
held on the slope by other rocks . It was the opinion of
Inspector Marler that a jolt by another rock or any small
movement could send the pile of rocks down upon the two
miners . He found an imminent danger. Mike Ray was aware of
the practice and had observed miners removing rocks in this
manner at other times.
Ray d isagreed with the inspector's
opinion. Nonetheless, a trier of facts may have given
weight to the inspector's observations and opinion and found
that Ray's conduct was aggravated by subjecting miners to an
imminent danger. The fact that the trial judge gave greater
weight to Ray's safety opinion does not mean that the
Secretary's case was not substantially justified by the
inspector's observations and safety opinion.
I find that the government's position in charging Mike
Ray under§ llO(c) of the Mine Act as to both charges was
"substantially justified" within the meaning of the Equal

2041

Access to Justice Act. 2
ORDER
The application for an attorney fee and other costs
under the Equal Access to Justice Act is DENIED .

~~~';~
Administrative Law Judge

2

The Secretary also contends that there are "special
circumstances which make an award unjust," contending that his
action against Ray involves a "credible extension of law. 11
Secretary's Response to Application, p.13-14. The Secretary does
not articulate what extension he was trying to advance. However,
it appears that the Secretary's position is that a supervisor may
be subject to a penalty under§ llO(c) even if he or she believed
the miners were safe. This is not an extension of the current
law.
It is the current law. The contention of "special
circumstances" is rejected.

2042

Distribution:
Bradley Hiles, Esq., Peper, Martin, Hensen, Maic~el and
Hetlage, Twenty-Fourth Floor, 720 Olive Street, St. Louis,
MO 63101-2395 (Certified Mail)
Margaret Miller, Esq., Office of the Sol icitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716
(Certified Mail)
/nt

2043

FEDERAL KINE SAFETY AND BBALTB RBVIBW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

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

CIVIL PENALTY PROCEEDINGS
:

Docket No. WEST 95-186-M
A.C. No. 24-01986-05505

..

v.

Docket No. WEST 95-433-M
A.C. No. 24-01986-05507
Docket No. WEST 95-448-M
A.C. No. 24-01986-05506

HOLLOW CONTRACTING, INC.,
Respondent

.
.

Docket No. WEST 95-549-M
A.C. No. 24-01986-05508
Portable Crusher

DECISI.ON
Appearances:

Barbara J. Renowden and Gary L. Grimes, Conference
and Litigation Representatives, Mine Safety and
Health Administration, Denver, Colorado, for
Petitioner;
William J. Hollow, President, Hollow Contracting,
Inc., Butte, Montana, for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration ("MSHA") , against
Hollow Contracting, Inc. ("Hollow Contracting"), pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. §§ 815 and 820 (the "Mine Act"). The petitions
allege 33 violations of the Secretary's safety standards . For
the reasons set forth below, I affirm 30 citations, vacate 3
citations, and assess penalties in the amount of $2,065.
A hearing was held in these cases in Butte, Montana. The
parties presented testimony and documentary evidence, but waived
post-hearing briefs.
2044

I.

DISCUSSION WITH FINDINGS OP PACT AND CONCLUSIONS OP LAW

The Portable crusher involved in these cases was a very
· small facility that produced fines and crushed rock. (Tr. 284).
At the time the citations were issued, the crusher was about ten
miles south of the town of Big Timber in Sweet Grass county,
Montana. The operation consisted of a crusher and related
equipment. Hollow Contracting recorded about 2,375 hours of
production in 1994 and it employed about 16 people . (Ex. s-1;
Tr. 284). About five people were employed at the Big Timber
crusher at the time the citations were issued. {Tr. 283).
Hollow Contracting has a history of 25 citations between September 1992 and September 1994. (Ex. S-2). On September 15, 1994,
MSHA Inspector Seibert Smith inspected the crusher and issued
most of the citations at issue in these proceedings. TWo
citations were issued by MSHA Inspector Ronald Goldade at a
different time.
General Background
Hollow Cont~acting first became involved in the crushing
business when it operated a crusher that was owned by another
company near Libby, Montana. {Tr. 280). After that job was
completed, Hollow Contracting bought equipment, leased other
equipment, and operated a crusher near Roundup, Montana. {Tr.
281). At about the same time, Hollow Contracting started the
Big Timber operation. Id. It started setting up the Big Timber
crusher about a week before MSHA's inspection. (Tr. 282). It
ran the plant for one day to get product samples to be analyzed
in Billings. Id.
At the time of the inspection, the plant was
not operating because the crusher was broken. Mr. Hollow went to
Billings to get a part. (Tr. 286). The crusher started production the next day after it was fixed. Id. Hollow Contracting
was not paid for much of its work and the company sold its
crushing equipment to Montana Materials, L. L. C., sometime after
the subject citations were issued.
(Tr. 317-18). Hollow
Contracting is still in business but does not own the crushing
equipment. Id. Mr. Hollow is the sole owner of Hollow Contracting and Hollow Contracting is a part owner of Monta_na
Materials. Id. Based on the evidence of record, I find that
Hollow Contracting remains liable for any penalties assessed for
the citations at issue in these proceedings.
Hollow Contracting contends that it attempted on several
occasions to get a copy of MSHA's safety regulations from MSHA
inspectors . Hollow Contracting states that it did not know what
the safety standards required because it did not have a copy of
the standards. The Secretary's safety standards are publicly
available in the Code of Federal Regulations. While I appreciate
that the standards may be difficult for a small mine operator to
obtain, they are available to the public. The fact that

2045

Mr. Hollow had not yet received a copy cannot be a defense to the

citations or a mitigating factor in assessing civil penalties.
See Materials Delivery, 15 FMSHRC 2467, 2471 (December 1993)
(ALT).

Hollow Contracting also maintains that many of the conditions described in the citations did not create a hazard to its
employees. The Commission and the courts have uniformly held
that the Mine Act is a strict liability statute. See, e.g.
Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989). "(W]hen a
violation of a mandatory safety standard occurs in a mine, the
operator is automatically assessed a civil penalty." Id. at
1197. In addition, the Secretary is not required to prove that a
violation creates a safety hazard, unless the safety standard so
provides.
The [Mine Act) imposes no general requirement
that a violation of MSHA regulations be found
to create a safety hazard in order for a
valid citation to issue. 30 u.s . c. § 814(a).
If conditions existed which violated the
regulations, citations [are] proper.
Allied Products Qo., 666 F.2d 890, 892-93 (5th Cir. 1982)
(footnote omitted). The degree of the hazard is taken into
consideration in assessing a civil penalty under section llO(i).
30 u.s.c. § 820(i) .
In addition, Hollow contracting contends that its crusher
was not operating at the time of the inspection. There is no
dispute that the crusher was out of service for repairs at the
time the citations were issued. Nevertheless, Mr. Hollow testified that once the repairs were completed, the plant was
scheduled to start commercial production within one day. (Tr.
286) . Thus, the conditions observed by MSHA would have continued
to exist when the plant was started. Except where noted below,
Hollow Contracting did not argue that it would have repaired the
cited conditions prior to starting production. In addition,
there is no dispute that the crusher was operating the day before
the inspection when product samples were obtained.
Finally, Hollow Contracting contends that its crushing
equipment was inspected by MSHA in the past and that MSHA's
inspectors saw the same conditions that were cited at Big Timber.
It argues that it is unreasonable for MSHA to issue citations and
assess penalties for conditions that were not cited in these past
inspections. The Commission has held that the Secretary is not
prevented from issuing a citation for a condition that violates a
safety standard simply because the same condition existed during
a previous MSHA inspection and was not cited. The fact that a
condition was observed by an MSHA inspector and not cited may

2046

reduce the level of negligence attributed to the mine operator
and result in a reduced penalty.
In assessing civil penalties, I have taken into consideration the fact that Hollow Contracting is a very small business
and that it promptly abated the citations. I reduced the
penalties from that proposed by the Secretary, in part, because
the secretary did not give sufficient consideration to Hollow
Contracting's small size. Except as noted below, I find that
Hollow Contracting's negligence was low with respect to the
citations. Mr. Hollow was attempting to run a safe operation
and reasonably believed that he was in compliance with the
Secretary's safety standards.
Specific Citations
In order to discuss the allegations in a systematic way, I
have grouped the citations by subject area rather than by docket
number.
A.

NOTIFICATION AND RBPORTING CITATIONS

1. Citation No. 4409918 alleges that Hollow Contracting
failed to notify MSHA in writing that it was starting operations
at the Big Timber site. The regulation, 30 c.P.R. S 56.1000,
provides, in part, that the operator of any metal or nonmetal
mine shall notify the nearest MSHA off ice before starting operations. Inspector Smith testified that the crusher was not on
MSHA's list for the Big Timber location. (Tr. 219-20). He
stated that the violation was not serious and that Hollow Contracting' s negligence was moderate. The Secretary proposed a
penalty of $136.
Mr. Hollow testified that his office notified the local MSHA
office of the Big Timber operation by telephone. (Tr. 316).
Apparently, Hollow Contracting had notified MSHA of its other
crushing operations. (Tr. 224). I find that the Secretary
established a violation. The regulation does not specifically
require that the notification be in writing, but when the regulation is read in conjunction with ~O C.F.R. § 41.ll(a) and
section 109(d) of the Mine Act it is clear that a telephone call
may not be sufficient. In any event, I credit the testimony of
Inspector Smith that the local MSHA office did not have any
record of the call.

I find that Hollow Contracting's negligence was very low
because it believed that it notified MSHA and the crusher
facility had only been at Big Timber for about a week. Based on
the penalty criteria, I assess a civil penalty of $5 for this
violation .

2047

2. Citation No. 4363435 alleges that Hollow Contracting
failed to notify the local MSHA office when it closed its
operations at Big Timber. The regulation, 30 C.F.R.· S 56.1000,
provides, in part, that the operator of any metal or nonmetal
mine shall notify the nearest MSHA off ice when a mine is temporarily or permanently closed. Inspector Goldade testified
that when he traveled to the site on March 23, 1995, the crusher
was no longer there. (Tr. 258). He stated that the violation
was not serious but that Hollow Contracting's negligence was high
because Hollow Contracting had been cited for violations of this
safety standard on two previous occasions. The Secretary proposed a penalty of $189.
Mr. Hollow testified that Hollow Contracting had not completed its work at the Big Timber site at the time of Inspector
Goldade's inspection so the mine was not temporarily or permanently closed. (Tr. 312-15). Apparently, Hollow Contracting was
crushing material at the site that was used in an asphalt paving
project. The citation was issued in March and Mr. Hollow stated
that Hollow Contracting was required to return to the cite in the
spring and "clean up the chips." (Tr. 315). Chips are "threeeighths rock with no fines in it." (Tr. 314). The cleaned chips
would then be put on top of the asphalt. The asphalt was not
chipped in the fall because of cold weather.
I find that the Secretary did not establish a violation. I
credit Mr. Hollow's testimony that he had to return to the site
to finish work on the project. Hollow Contracting had to bring
in some screening equipment to clean the chips. (Tr. 259, 31314). The screen removed any debris and fines. This activity is
considered to be "sizing," which is subject to Mine Act jurisdiction. The Secretary did not produce evidence to establish the
length of time between the date the crushing operation was completed and the date that the chips were to be screened. The
inspector issued the citation because the crushing equipment was
not at the Big Timber site on March 23. Although the regulation
requires mine operators to notify the nearest MSHA off ice when a
mine is temporarily closed, a rule of reason is required. A
short period of inactivity may not amount to a temporary closure.
Hollow Contracting removed the crushing equipment because they
were no longer needed at Big Timber, not because the mine was
closed. Accordingly, this citation is vacated.
3. Citation No. 4410149 alleges that Hollow contracting
failed to provide Inspector Smith with a copy of the quarterly
employment report for the second quarter of 1994. The regulation, 30 C.F.R. S 50.40, provides, in part, that mine operators
shall keep a copy of each quarterly employment report submitted
to MSHA at the mine office for a period of five years. Inspector
Smith testified that he was told that the report was not available at the mine. (Tr. 171). He stated that the violation was
not serious but that Hollow Contracting's negligence was high

2048

because no employment reports were available at the mine.
Secretary proposed a penalty of $136.

The

Mr. Hollow testified that the plant was not in operation and
he did not know that these reports were required to be filed when
Hollow Contracting was not in production. (Tr. 315). He stated
that at that time he kept his records on top of his refrigerator.
I find that the Secretary established a violation, but I do not
agree that the operator's negligence was high. The fact that
several reports were not available does not establish high negligence. Based on the penalty criteria, I assess a civil penalty
of $5 for this violation.

B.

MACHINERY AND EQUIPMENT CITATIONS

1. Citation No . 4410144 alleges that records were not provided at the mine site of the defects in the equipment that "were
cited on this inspection" for review by the inspector. The regulation, 30 c.F.R. S 56.14100(4), provides, in part, that defects
on self-propelled mobile equipment affecting safety, which are
not immediately corrected, shall be recorded. Inspector Smith
testified that there were no records kept of safety defects at
the mine. (Tr. 209-10). He stated that the violation was not
serious and that Hollow Contracting's negligence was moderate.
The Secretary proposed a penalty of $157.
Mr. Hollow testified that there was a calendar in the
generator van where workers would mark down what needed to be
fixed that day. (Tr. 210, 310-11). It appears, however, that
this record concerned routine matters, such as oil changes. The
calendar did not contain a list of the safety defects found by
employees. Accordingly, I find that the Secretary established a
violation. I find that the violation was not serious . Based on
the penalty criteria, I assess a civil penalty of $20 for this
violation.

2 . Citation No. 4409970 alleges that the backup alarm on a
John Deere loader was not maintained in a functioning condition.
The safety standard, 30 C.F.R. S 56.14132(b)(2), provides, in
part, that backup alarms shall be audible above the surrounding
noise level. Inspector Goldade testified that he observed an
employee backing up the loader and that a backup alarm could not
be heard. {Tr. 250) .
He stated that the violation was significant and substantial ("S&S"), and that Hollow Contracting's
negligence was moderate . The Secretary proposed a penalty of
$595.

Mr. Hollow testified that the backup alarm was working, but
that Inspector Goldade did not think it was loud enough . {Tr .
305, 312). He stated that Inspector Smith was in the area on the
previous day and did not issue a citation.

2049

I find that the Secretary established a violation. I also
find that the violation was S&S . The four elements of the
Mathies test were met.
Mathies Coal co., 6 FMSHRC l ·, 3-4
(January 1984). The third element, whether there was a reasonable likelihood that the hazard contributed to will result in an
injury, presents the closest question. Inspector Goldade testified that if an employee were to walk in the area of the loader
while it was backing up, he may not be aware that he was in
danger because he could not hear the backup alarm. (Tr. 252).
He testified that the operator of the loader might not see him
because of a blind spot on the loader. {Tr. 253). He further
testified that there was a reasonable likelihood that the hazard
contributed to would result in a serious accident or a fatality.
(Tr. 254) . He noted that fatal accidents in such situations are
not uncommon. (Tr. 252).
I credit the inspector's testimony and find that the violation was very serious. I also find that Hollow Contracting's
negligence was moderate. Based on the penalty criteria, I assess
a civil penalty of $300 for this violation.
3. citation No. 4409920 alleges that the guard installed on
the tail end of the pan discharge feeder was not secured on the
right side. The safety standard, 30 C.P.R. S 56.14112(b), provides, in part, that guards shall be securely in place while
machinery is being operated. Inspector Smith testified that a .
guard was present but that it was not secured on one side.
(Tr. 39-44; . Ex. G-448-2). He determined that the violation was
not serious and was the result of Hollow Contracting's low negligence. The Secretary proposed a penalty of $189.
Mr. Hollow testified that the guard had been bolted on, but
that the guard must have been snagged by a loader. {Tr. 287).
He stated that it was highly unlikely that the condition would
cause anyone to be injured. I find that the Secretary established a violation. I agree that the violation was not serious
and that it was highly unlikely that it would have caused an
injury. Based on the penalty criteria, I assess a civil penalty
of $20 for this violation.
4. Citation No. 4409922 alleges that a guard was . not
installed on the overhead v-belt drive unit for the main white
screen plant to prevent a whipping action of the belt if it were
to break. The safety standard, 30 C.P.R. S 56.14108, provides
that overhead drive belts shall be guarded to contain the whipping action of a broken belt if that action could be hazardous to
persons. Inspector Smith testified that he observed that the
v-belt drive was not provided with a guard.
(Tr. 54-58; Ex.
G-448-4). He stated that if the belt were to break, a whipping
action could cause the belt to strike an employee. Inspector
Smith stated that he saw an employee in the area on the previous
day.
(Tr. 60-61). He determined that the violation was not

2050

serious and was the result of Hollow contracting's low negligence. The Secretary proposed a penalty of $147.
Mr. Hollow testified that because of the direction of the
rotation of the belt and the location of the motor, he did not
believe that a broken beJt would hit anyone.
(Tr. 59, 289).
I find that the Secretary established a violation. I agree that
the violation was not serious and that it was highly unlikely
that it would have caused an injury. Based on the penalty
criteria, I assess a civil penalty of $20 for this violation.

5 . citation No . 4409921 alleges that a guard was not installed on the sides of the fin-type tail pulley for the orange
stacker discharge conveyor. The safety standard, 30 c.F.R.
S 56.14107(a), provides, in part, that moving machine parts shall
be guarded to protect persons from contacting drive, head, tail,
and takeup pulleys and similar moving parts that can cause
injury . Inspector Smith testified that he observed that the
cited tail pulley was not provided with guards and that several
employees were required to work or walk by the area.
(Tr. 44-46;
Ex. G-448-3). He stated that neither side of the tail pulley was
guarded and that employees cleaning up in the area could be
injured as a result.
He determined that the violation was S&S
and was the result of Hollow Contracting's moderate negligence.
The Secretary proposed a penalty of $362.
Mr. Hollow testified that it would be very difficult for a
person to fall and trip into the pinch point of the tail pulley.
(Tr. 288}. He stated that the only time that anyone was in the
area was at the end of the work day after the operation was shut
down. Id . on the other hand, he testified that employees
sometimes clean up while the conveyors are running.
(Tr. 289).

The Commission held that the most logical construction of a
guarding standard "imports the concepts of reasonable possibility
of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary
human carelessness . " Thompson Brothers Coal co., Inc., 6 FMSHRC
2094, 2097 (September 1984). The Commission stressed that the
construction of safety standards involving miners' behavior
"cannot ignore the vagaries of human conduct." Id.
(citations
omitted) . Thus, I must consider all relevant exposure and injury
variables including "accessibility of the machine parts, work
areas, ingress and egress, work duties, and •.. the vagaries of
human conduct" on a case-by-case basis. Id.
Taking these factors into consideration, I find that the
Secretary established a violation. The more difficult question
is whether the Secretary established that the violation was s&s.
It is clear that a discrete safety hazard was created by the
violation. The issue is whether there was a reasonable likelihood that the hazard contributed to by the violation would result

2051

in a serious injury if not corrected. Inspector smith testified
that an employee working in the area or walking through the area
could slip and fall and come in contact with the moving parts of
the tail pulley. {Tr. 48). He determined that such an event was
reasonably likely. (Tr. 47-48). The tail pulley was about one
foot above the ground. 1 I find that the Secretary established
that the violation was S&S. The ground was uneven in the area.
A significant tripping hazard was presented by the terrain.
(Ex. G-448-3). I find that it was reasonably likely that someone
would be seriously injured as a result of the cited condition.
Based on the penalty criteria, I assess a civil penalty of $100
for this violation.
6. Citation No. 4409923 alleges that a guard was not
installed on the tail puiley for the discharge conveyor under
the white shaker screen, in violation of section 56 . 14107(&).
Inspector Smith testified that he observed that the cited tail
pulley was not provided with a guard. (Tr. 62-72; Ex. G-448-5).
He stated that employees were required to clean up in the area
and that an employee could slip, come in contact with the moving
parts, and sustain serious injuries. The pulley was about one
and a half feet . above the ground. He determined that the
violation was S&S and was the result of Hollow Contracting's
moderate negligence. The Secretary proposed a penalty of $362.
Mr. Hollow testified that it would be difficult for someone
to come in contact with the tail pulley because O·f its location.
{Tr. 290). He stated that the tail pulley is behind iron supports for the white shaker screen. (Tr. 290-92; Ex . G-488-4).
He stated that an employee could not get any closer than about
three to four feet from the pulley. He testified that it was
unlikely that someone would trip and come in contact with the
tail pulley. Finally, Mr. Hollow stated that the fines are
cleaned off the belt at a different location . Id.

I find that the Secretary established a violation but did
not establish that the violation was S&S. There was no showing
that it was reasonably likely than anyone would be injured by the
violation because the pulley was not in an easily accessible area

For reasons that are not e.n tirely clear, Inspector Smith
was instructed _by MSHA headquarters to take all of his measurements in centimeters. The safety standard at subsection (b) uses
feet as the standard measurement . It is pointless to require
measurements in the metric system when the safety standards use
teet and inches. This requirement confused Mr. Hollow and I can
understand his confusion. I encourage the Secretary to drop his
requirement that MSHA inspectors take measurements in centimeters. In this decision, I converted Inspector Smith's measurements to feet and inches.

2052

and regular cleanup was not required. Based on the penalty
criteria, I assess a civil penalty of $50 for this violation .
7. Citation No . 4409924 alleges that a guard was not
installed on the head pulley a nd v -belt d r ive system for the main
discharge conveyor for the shaker screen , in violation of section
56.14107(a).
Inspector Smith t estified that he observed that the
cited head pul l e y and v -belt driv e were not provided with guards.
(Tr. 73-85 ; Ex o G- 448- 6) . He stated that employees were required
to be in the area where they c ould make contact with the moving
parts . He stat ed that he o bserved footprints in the area . At
its lowest point, the p ulley unit was about three feet above the
ground . He d e termined t hat t he violation was S&S and was the
result of Hollow Contracting's moderate negligence . The Secretary proposed a penalty of $3620

Mr . Hollow t estified that t h e area had been guarded , but
that the guard had been removed .
(Tr. 293-95). I find that
the Secretary established a violation . The moving parts were
within seven feet of a walking o r working surface .
(Tr. 83-84).
Whether the v iolation was S&S i s a c lose question .
Inspector
Smith stated that employees °'could make contact with the moving
parts."
(Tr . 76) . Spilled material was in the area and footprints were observed on the spilled material. He stated that
anyone cleaning up the spilled material or walking in the area
could slip and make contacto
(Tr. 78- 79). Inspector Smith did
not observe anyone working close to the head pulley or v-belt
drive.
(Tr. 81). Given the nature of the hazard, the location
of the unguarded moving parts, the terrain around the area, and
the necessity to clean up the accumulated material from time-totime, I find that it was reasonably likely that someone would be
seriously injured as a result of the cited condition, assuming
continued normal mining operations. Based on the penalty
criteria , I assess a civil penalty of $100 for this violation.
8 . Citation No . 4409925 alleges that a guard was not
installed on the v -belt drive unit for the pan feeder for the
orange crusher, in v iolation of section 56.14107(a). Inspector
Smith testified that he observed that the cited v-belt drive was
not provided with a guard.
(Tr . 85-94; Ex. G- 448-7). He stated
that employees were required to be in the area where they could
make contact with the moving parts. He stated that the v-belt
drive was readily accessible to employees walking in the area.
The lower pulley ~as about two feet from the ground and the upper
pulley was about eight feet off the ground. He determined that
the violation was S&S and was the result of Hollow Contracting's
moderate negligence . The Secretar y proposed a penalty of $362.
Mr. Hollow testified that the area may have been guarded in
the past and that it is a slow-moving v-belt drive.
(Tr . 295).
I find that the Secretary established a violation but did not
establish that the violation was S&S. Although the v-belt drive

2053

was not near an established walkway, it was in an area that was
easily accessible to miners. They could walk within seven feet
of the pulleys in their daily routine. It was not shown, however, that it was reasonably likely that anyone would be injured
as a result of this condition, assuming continued normal mining
operations. Inspector Smith stated that employees would not be
in the area very often. (Tr. 89) . Based on the penalty criteria, I assess a civil penalty of $50 for this violation.
9.
citation No. 4409926 alleges that a guard was not
installed on the side of the fin-type tail pulley for the stacker
conveyor at the El-Jay crusher, in violation of section
56.14107(&) .
Inspector Smith testified that he observed that the
cited tail pulley was not provided with a guard. (Tr. 97-103;
Ex. G-448-8). He stated that employees were required to be in
the area where they could make contact with the moving parts.
The pulley was about 15 inches above the ground. He determined
that the violation was S&S and was the result of Hollow Contracting' s moderate negligence. The Secretary proposed a penalty
of $362.

Mr. Hollow testified that the pulley was in an area where
employees were not normally required to be. (Tr. 295-96). He
stated that there was a cluster of belts in the area and it was a
difficult area to enter. I find that the Secretary established a
violation but did not establish that the violation was S&S.
Although the tail pulley was not near an established walkway, it
was in an area that was accessible and employees might be
required to cleanup accumulations in the area. It was not shown,
however, that it was reasonably likely that anyone would be
injured as a result of this condition, assuming continued normal
mining operations. I credit Mr. Hollow's testimony and find that
employees would generally not be in the area while the belts were
operating. Based on the penalty criteria, I assess a civil
penalty of $50 for this violation.
10. Citation No. 4409927 alleges that a guard was not
installed on the tail pulley for the light yellow stacker conveyor, in violation of section 56.14107(a). Inspector Smith
testified that he observed that the cited tail pulley was not
provided with a guard. (Tr. 103-08; Ex . G-448-9). He stated
that employees were required to be in the area where they could
make contact with the moving parts.· The pulley was about 15
inches above the ground. He determined that the violation was
S&S and was the result of Hollow Contracting's moderate negligence. The Secretary proposed a penalty of $362.

Mr. Hol low testified that a guard was supposed to be on the
tail pulley. (Tr. 296). I find that the Secretary established a
violation and that the violation was S&S.
The tail pulley was
in an open area and accumulations from the conveyor would require
cleaning. In addition, the exhibit shows a shovel within a few

2054

feet of the conveyor. It would be reasonably likely that an
employee would be seriou~ly injured while cleaning around the
pulley. Based on the penalty criteria, I assess a civil penalty
of $100 for this violation.
11. Citation No. 4409928 alleges that a guard was not
installed on the head pulley and the v-belt drive for the main
discharge conveyor for the El-Jay crusher, in violation of
section 56.14107(a). Inspector Smith testified that he observed
that the cited head pulley and v-belt drive assembly were not
provided with a guard. (Tr. 109-17; Ex. G-448-10). He stated
that employees were required to be in the area where they could
make contact with the moving parts. The pulley was about five
feet above the ground. He determined that the violation was s&s
and was the result of Hollow Contracting's moderate negligence.
The Secretary proposed a penalty of $362 .
Mr. Hollow testified that he did not own the cited equipment, but rented it. (Tr. 297) . He said that the crusher did
not have guards .when it was delivered . I find that the Secretary
established a violation and that the violation was S&S. The tail
pulley was in an 'open area and accumulations from the conveyor
would require cleaning. The fact that Hollow Contracting did not
own the equipment is not controlling. In addition, the evidence
shows that it would be reasonably likely that an employee would
be seriously injured while cleaning around the pulley. Based on
the penalty criteria, I assess a civil penalty of $100 for this
violation.

12. Citation No. 4409929 alleges that a guard was not
installed on the fin-type tail pulley for the sand stacker
conveyor , in violation of section 56.14107(a) . Inspector Smith
testified that he observed that the cited tail pulley was not
provided with a guard. (Tr. 117-22; Ex. G-448-11). He stated
that employees were required to be in the area where they could
make contact with the moving parts. The pulley was between one
and two feet above the ground. He determined that the violation
was S&S and was the result of Hollow Contracting's moderate
negligence. The Secretary proposed a penalty of . $362.
Mr. Hollow testified that he had recently purchased the
cited equipment and that it did not come equipped with guards .
(Tr . 297}. I find that the Secretary established a violation and
that the violation was S&S. The tail pulley was in an open area
and accumulations from the conveyor would require cleaning. The
fact that guards were not installed on the equipment when Hollow
Contracting purchased it is not controlling. In addition, the
evidence shows that it would be reasonably likely that an
employee would be seriously injured while cleaning around the
pulley. Accumulations were visible and the inspector observed
footprints in the accumulations. ~ased on the penalty criteria,
I assess a civil penalty of $100 for this violation .

2055

13. Citation No. 4409930 alleges that a guard was not
installed on back end of the tail pulley for the conveyor under
the Telsmith crusher, in violation of section 56.14107(&).
Inspector Smith testified that he observed that the cited tail
pulley was not provided with a guard.
(Tr. 123-27; Ex. G-44812). He stated that employees were required to be in the area
where they could make contact with the moving parts. The pulley
was about one foot above the ground. He determined that the
violation was S&S and was the result of Hollow Contracting's
moderate negligence . The Secretary proposed a penalty of $362.
Mr. Hollow testified that he had recently acquired the
equipment and it did not come with gua.r ds. (Tr. 298). I find
that the Secretary established a violation and that the violation
was S&S.
The tail pulley was in an open area and accumulations
from the conveyor would require cleaning. The fact that guards
were not installed on the equipment when Hollow contracting
purchased it is not controlling. In addition , the evidence shows
that it would be reasonably likely that an employee would be
seriously injured while cleaning around the pulley. Accumulations were visible around the pulley and there were indications
that the an employee had cleaned around the area. {Tr. 124).
Based on the penalty criteria, I assess a civil penalty of $100
for this violation.

14. Citation No. 4409932 alleges that a guard was not
installed on the bottom half of the main v-belt drive unit for
the Telsmith crusher, in violation of section 56.14107(&).
Inspector Smith testified that he observed that the cited v-belt
drive unit was not provided with a guard. (Tr. 131-40;
Ex. G-448-14). He stated that he believed that a guard had been
provided at one time. He also said that he observed footprints
under the Telsmith crusher. The v-belt drive was about five feet
above the ground and a little over two feet from the frame of the
crusher . He determined that the violation was S&S and was the
result of Hollow Contracting's low negligence. The Secretary
proposed a penalty of $235 .
Mr. Hollow testified that it would be impossible f9r anyone
to come in contact with the v-belt drive assembly unless one
climbed up onto the crusher and reached into the area or crawled
under the crusher. (Tr. 298-300) • . He stated that the sides of
the v-belt drive were guarded . I find that the Secretary did not
establish a violation. There was no showing that the cited drive
was within seven feet of walking or working surfaces. 30 C.F.R.
§ 14107(b).
The v-belt drive was protected by its location and
an employee could come in contact with the moving parts only if
he stooped over and walked under the crusher or climbed onto the
crusher. (Tr. 135-36). Although Inspector Smith observed footpr·i nts under the crusher, it is not clear how they got there .
The crusher had been recently set up and the prints could predate

2056

the operation of the crusher.
vacated.
C.

Accordingly, this citation is

FIRE CONTROL AND MEDICAL ASSISTANCE CITATIONS

1. Citation No. 4409940 alleges that a small quantity of
gasoline was stored in a five-gallon plastic container. The
safety standard, 30 c.F.R. S 56.4402, provides that small quantities of f lam.mable liquids shall be kept in safety cans labeled
to indicate the contents. Inspector smith testified that he was
concerned that pressure could build in the container if it got
hot and cause an explosion. (Tr . 185-93; Ex. G-443-2). He could
not recall if the can was labeled. He stated that a safety can
is "a metal can that has a spring loaded lid on top that • •• will
pop and relieve the pressure." (Tr. 189). He stated that the
violation was not serious and that Hollow contracting's negligence was low. The Secretary proposed a penalty of $147.
Mr. Hollow testified that the can was OSHA-approved and it
probably contained diesel fuel. (Tr. 306-07). I find that the
Secretary establ-ished a violation. Safety can is defined as "an
approved contain~r ••• having a spring-closing lid and spout
cover." 30 C.F.R. § 56.2. There is no question that the can
used by Hollow Contracting was not a safety can. I find that the
violation was not serious in that it did not pose a hazard to
employees, and that Hollow Contracting's negligence was low.
Based on the penalty criteria, I assess a civil penalty of $20
for this violation.
2. Citation No. 4410141 alleges- that a set of oxygen and
acetylene cylinders were observed being stored in the back of a
pickup truck. A small container of gasoline was stored in the
same area. The safety standard, 30 C.F.R. S 56.4601, provides
that oxygen cylinders shall not be stored in areas used for
storage of flammable liquids. Inspector Smith testified that he
observed grease, an acetylene cylinder, and gasoline stored in
the same area as the oxygen cylinder. (Tr. 193-98; Ex. G-443-3).
He was concerned about an explosion hazard. He stated that the
violation was S&S and that Hollow Contracting's negligence was
low. The Secretary proposed a penalty of $238 .
Mr. Hollow testified that he was not present at the time the
citation was issued and the can may have contained antifreeze.
(Tr. 307). I find that the Secretary established a violation and
that the violation was S&S. Two employees were cutting metal
with the torch at the end of the truck. (Tr . 196). This created
a significant risk of a fire or explosion. It was reasonably
likely that an employee would be seriously injured by this
practice. This violation posed a serious safety hazard to
employees. I credit Inspector Smith's testimony that he considered the negligence to be low because Mr. Hollow was not at the

2057

mine at the time of the violation. Based on the penalty criteria, I assess a civil penalty of $175 for this vio~ation.
3. citation No. 4410142 alleges that an employee was
observed using oxygen and acetylene cylinders with a cutting
torch at the end of a pickup truck and that a fire extinguisher
was not available. The safety standard, 30 c.F.R. S 56.4600
(a) (2), provides, in part, that a fire extinguisher shall be at
a worksite where cutting is being performed with an open flame.
Inspector Smith testified that he observed employees cutting with
an open flame on the tailgate of the pickup truck in the vicinity
of flammable material and that a fire extinguisher was not
readily available. (Tr. 198-206; Ex. G-443-3). The conditions
that prompted Inspector smith to issue this citation are the same
as described in Citation No. 4410141, above. He stated that the
violation was S&S and that Hollow Contracting's negligence was
moderate. The.- Secretary proposed a penalty of $595.
Mr. Hollow testified that fire extinguishers were available
at the mine. (Tr. 308-10, 200-06). He stated that if a fire
were to start, employees would want to get away from the fire and
get an extinguis~er. Mr. Hollow contends that under MSHA's
interpretation of the standard, the extinguisher would have to be
within a few feet of the cutting activity, which would be too
close to be of use during a fire. He testified that a fire
extinguisher was available in a truck that was parked within ten
feet of the cutting activity. (Tr. 310).
Inspector Smith testified that he issued the citation
because he could not find a fire extinguisher in the "immediate
area." The regulation does not contain such a requirement. It
states that an extinguisher must be "at the worksite." This term
is not defined in the regulations. Mr. Hollow testified that an
extinguisher was available within about ten feet of the cutting
activity. No evidence contradicts this testimony and I credit
the testimony. I also agree that there is no advantage in having
an extinguisher so close that an employee would hesitate to get
it for fear of getting burned. Accordingly, this citation is
vacated.
4. Citation No. 4410147 alleges that Hollow Contracting had
not established emergency fire fighting, evacuation, and rescue
procedures for the mine. The safety standard, 30 c.F.R.
S 56.4330(a), provides that such procedures be established and
coordinated with available fire-fighting organizations. Inspector Smith testified that Mr. Hollow had not contacted any firefighting organization or established any procedures. (Tr. 21618). He stated that the violation was not serious and that
Hollow Contracting's negligence was moderate. The Secretary
proposed a penalty of $168 .

2058

Mr. Hollow testified that he had not established any procedures but that everybody knew that the crusher was there,
including the police department. (Tr. 311). I find that the
Secretary established a violation. The violation was not serious
and was highly unlikely to result in an injury. Based on the
penalty criteria, I assess a civil penalty of $20 for this
violation.
5. Citation No. 4410146 alleges that Hollow Contracting had
not made arrangements for obtaining emergency medical assistance
and transportation of injured persons. The safety standard, 30
C.F.R. S 56.18014, provides that such arrangements be established
in advance. Inspector Smith testified that Mr. Hollow had not
made arrangements for emergency medical assistance and for the
transportation of injured persons in the event of an accident at
the mine. (Tr. 213-16). He stated that the violation was not
serious and that Hollow Contracting's negligence was moderate.
The Secretary proposed a penalty of $168.
Mr. Hollow testified that he had not made any arrangements
but that everybody knew that the crusher was there, including the
police department. (Tr. 311). He stated that he did not believe
that rescue services were available in the area. I find that the
Secretary established a violation. The violation was not serious
and was highly unlikely to result in an injury. Based on the
penalty criteria, I assess a civil penalty of $20 for this
violation.
6 . Citation Nos. 4409933 and 4409934 allege that a record
of the inspection of the fire extinguishers at the fuel truck and
generator trailer was not provided at the mine for review by the
MSHA inspector . The safety standard, 30 C.F.R. S 56.4201(b),
provides that a certification shall be made that fire extinguishers have been tested in the manner set forth in subsection (a),
and requires that this certification be kept at the mine.
Inspector smith testified that he searched for the required
records but that none were available.
(Tr. 140-42). He stated
that other extinguishers at the site were provided with such
certifications. He stated that the violation was not s~rious and
that Hollow Contracting's negligence was moderate . The Secretary
proposed penalties of $147 and $136, respectively.
Mr. Hollow said that the employees regularly check the
extinguishers, but he did not know why these did not have a
record of the inspections .
(Tr. 300-01). I find that the
Secretary established the violations . The violations were not
serious because there was no showing that the extinguishers were
not functioning properly. Based on the penalty criteria, I
assess a civil penalty of $10 for each violation.

2059

D.

ELECTRICAL CITATIONS

1. Citation No . 4410143 alleges that Hollow Contracting did
not perform a continuity an~ resistance test of the grounding
system at the mine. The safety standard, 30 C.F.R. S 56.12028,
provides, in part, that continuity and resistance of grounding
systems shall be tested immediately after installation and
annually thereafter. Inspector Smith testified that there was no
indication that such a test had been preformed. (Tr. 206-08).
He stated that the violation was not serious and that Hollow
Contracting's negligence was moderate. The Secretary proposed a
penalty of $168.
I find that the Secretary established a violation. If such
tests are not conducted, the operator cannot be sure that its
grounding system is working. Based on the penalty criteria, I
assess a civil penalty of $50 for this violation.
2. citation No . 4409931 alleges that a cover plate was not
provided on the motor make-up box for the drive unit for the feed
return conveyor on the Telsmith crusher. The citation states
that the cover plate fell off and was on the ground. The safety
standard, 30 c.F~.R. S 56.12032, provides, in part, that cover
plates on junction boxes shall be kept in place at all times
except during testing or repair. Inspector Smith testified that
he observed the condition during his inspection. (Tr. 127-31;
Ex. G-488-13). He stated that the crusher was not energized at
the time of his inspection. He further stated that the violation
was not serious because it was not in an accessible area and that
Hollow Contracting's negligence was low. The Secretary proposed
a penalty of $235.
I conclude that the Secretary established a violation. I
agree· with the inspector that the violation was not serious
because the junction box was in an inaccessible area and it was
unlikely that anyone would come in contact with it. Based on the
penalty criteria, I assess a civil penalty of $50 for this
violation.
3. Citation No. 4409935 alleges that the door on the 480volt electrical panel in the generator trailer was left open.
The citation states that the circuits were energized and could be
accidentally contacted by employees. The safety standard, 30
c.F.R. S 56.12030, provides that when a potentially dangerous
condition is found, it shall be corrected before the circuit is
energiz ed. Inspector Smith testified that he observed an employee in the generator trailer and that the door on the elec- ·
trical panel had been left open . (Tr. 143-57; Ex. G-488-17).
He stated that he believed that the circuit was energized at the
time of his inspection. He further stated that the violation was
S&S because it would be easy for an employee in the trailer to
accidentally contact the energized connections. He stated that

2060

he observed tools and other things stored in the trailer. He
determined that Hollow contracting's negligence was moderate.
The Secretary proposed a penalty of $595.
Mr. Hollow testified that the generator was shut down
shortly after the inspector arrived because the crusher was not
operating. He also testified that the main circuit breaker,
which was at a different locatio~, was off so the electrical
contacts at the electrical panel were not energized. (Tr. 30102). He stated that employees are not -in the generator trailer
and that he believed that the employee spotted by the inspector
had been in the trailer to test the circuit to make sure it was
not energized so that employees could start their repairs on the
crusher. He stated that this panel is not used to de- energize
the circuit.
I find that the Secretary established a violation . The
panel could be closed but it could not be latched. Normally I
would find that such a violation was S&S. In this case, however,
I credit the testimony of Mr. Hollow that the circuit had been
de-energized at the main breaker and that employees do not generally go into the trailer when the power is on. Because of
Hollow Contractirig's operating procedures, it was not reasonably
likely that anyone would be in a position to contact the electrical connections when the circuit was energized. Based on the
penalty criteria, I assess a civil penalty of $50 for this
violation.
4. Citation No. 4409936 alleges that no ground was provided
for the extension cord that provided power to the overhead lights
at the crusher motor. The citation states that the grounding
prong on the plug was missing. The safety sta.n dard, 30 C.F.R.
S 56.12025, provides that all metal parts enclosing or encasing
electrical circuits shall be grounded. Inspector Smith testified
that he observed that the grounding prong was missing from the
electrical cord. (Tr. 157-63; Ex. G-488-18). He testified that
the cord was plugged in but was not energized at the time of his
inspection. He further stated that the violation was S&S and
that Hollow Contracting's negligence was low. The Secretary
proposed a penalty of $298.
Mr . Hollow testified that he believes that the cited plug is
on a 110-volt cord and not on the 220 volt cord that supplied
power to the lights. (Tr . 302-03). ' I find that the Secretary
established a violation. The circuit connected to the cited
extension cord was not protected by the grounding circuit. I
find that the Secretary did not establish that the violation was
S&S. When the inspector was asked why he determined that an
injury was reasonably likely he stated that "the operator was
aware that all circuits shall have a ground." (Tr. 159-60).
When the inspector was asked why he determined that the violation
was S&S, he replied that he observed an employee "in the area"

2061

the day before when it was raining. (Tr. 161). This testimony
does not establish that it was reasonably likely that an employee
will be seriously injured as a result of the cited condition,
assuming continued normal operations. Based on the penalty
criteria, I assess a civil penalty of $50 for this violation.
5. Citation No. 4409937 alleges that the inner wires on the
power cord for the overhead lights at the crusher operator's
station were exposed where they pass into the fixture. The
citation states that if a person contacted the metal parts of the
light fixture, he could receive a serious injury. The safety
standard, 30 C.F.R. S 56.12008, provides, in part, that power
wires shall be insulated adequately where they pass into electrical compartments and substantially bushed with insulated
bushings.
Inspector Smith testified that the power cord was
torn so that the inner wires were exposed to the metal frame of
the lighting fixture. (Tr. 163-70; Ex. G-488-19). He was concerned that an employee working around the operator's station
could be killed or seriously injured if he made contact with the
metal parts of the fixture .
The inspector stated that the
violation was S&S and that Hollow contracting's negligence was
moderate. The Secretary proposed a penalty of $595 .
Mr. Hollow testified that he believes that the cord had not
been torn for a long time because the cord was pulled tight. I
find that the Secretary established an S&S violation. rt is not
disputed that the inner wires of the cord were exposed. Although
there is no evidence that the insulation on the individual wires
had been cut, this insulation is designed to provide electrical
protection, not mechanical protection. The insulation could
easily be damaged and the metal components could become energized
as a result. The photograph, Ex. G-448-19, shows the hazard
involved. The wires were pulled tight against the frame and it
was only a matter of time before bare wire would be exposed.
People were required to work in the area and the lighting fixture
was in an easily accessible area. Accordingly, I find that it
was reasonably likely that someone would be seriously injured as
a result of the condition. I also find that Hollow Contracting's
negligence was moderate. Based on the penalty criteria, I assess
a civil penalty of $300 for this violation.
E.

OTHER CITATIONS

1. Citation Nos. 4409938 and 4409939 allege that a toeboard
and handrails were not provided on the elevated work deck on the
main orange crusher below the operator's station. The safety
standard, 30 C.F.R. S 56.11002, provides, in part, that elevated
walkways, ramps, and stairways shall be provided with handrails
and, where necessary, with toeboards. Inspector Smith testified
that the work deck was about nine feet above the ground.
(Tr.

2062

175-84; Ex. G-433-1). Toeboards were not provided. He stated
that he was concerned that an employee on the deck could accidentally kick rocks or other objects off the deck onto employees
working below. Inspector Smith testified that handrails were
present but were not complete. He stated that a midrail should
have been installed in one area and a top rail in another area.
He was concerned that ·an employee could slip and fall from the
deck. Finally, he testified that the violations were not serious
and that Hollow Contracting's negligence was low. The Secretary
proposed a penalty of $147 for each citation.
Mr. Hollow testified that these conditions existed on the
crushing equipment for quite some time at other sites and were
never cited by MSHA. (Tr . 304-06) . I find that the Secretary
established a violation. The cited work deck is a walkway and I
believe that a toeboard was required in that location. I find
that a reasonably prudent person would have known that a toeboard
was necessary. I also agree with the inspector that complete
handrails were not provided at some locations on the deck. The
violations did not present a serious safety hazard. Based on the
penalty criteria, I assess a civil penalty of $20 for each
violation.

2 . Citation No. 4409919 alleges that a berm was not provided on the outer edge of the elevated roadway at the main
hopper for the crusher. The safety standard, 30 C.P.R.
S 56.9300, provides that berms or guardrails shall be provided on
the banks of roadways where a drop-off exists of sufficient grade
or depth to cause a vehicle to overturn or endanger persons in
equipment. Inspector Smith testified that the area cited is
where employees drive the front-end loader to dump rock into the
hopper of the crusher. (Tr. 26-31; Ex. G-488-1). He stated that
the drop-off was about ten feet and that it was possible for a
loader to fall off. (Tr. 38-39) . Because the mine was shut down
at the time the citation was issued, there was no activity in the
area, but the inspector observed the front-end loader operating
in the area on the previous day. He further stated that the
violation was S&S and was caused by Hollow Contracting's moderate
negligence. The Secretary proposed a penalty of $595 .
Mr. Hollow testified that there was about a three-to-one
slope off the outer edge. (Tr. 285-86). He did not believe that
this slope created a serious hazard of a rollover. In any event,
Mr. Hollow stated that once operations commenced, the loader
operator would have put a berm in that area. I find that the
Secretary established a violation. A drop-off existed along the
bank of the elevated dumping area of a sufficient depth and grade
to create a risk that a loader would overturn or the loader operator would be injured if he accidentally went over the edge. I
cannot assume that the loader operator would have created a berm
when the mine began full production.

206 3

I also find that the violation was S&S based on the testimony of Inspector Smith. He stated that he observed a loader
operating in the area the previous day and that he saw tire
tracks in the area. He also relied on the fact that fatal and
serious accidents have been reported to MSHA i nvolving overtravel
on elevated roadways. Accordingly, I find that it was reasonably
likely that someone would be seriously injured as a result of the
condition, assuming normal operations o Based on the penalty
criteria, I assess a civil penalty of $100 for the violation .
3. Citation No. ~410145 alleges that a record of the examination of working places was not provided for review by the MSHA
inspector. The safety standard, 30 CoFoRo § 56ol8002(b), provides that a record certifying that an examination was made once
each shift of each working place shall be kept at the mine and
shall be made available for review by MSHA i nspectors . Inspector
Smith testified that he asked to review the records of the examinations of working places and the operator could not provide
such records . (Tr . 211-13) . He testified that the v iolation was
not serious and that Hollow Contracting 's negligence was moderate. The Secretary proposed a penalty of $136.

Mr. Hollow testified that records of equipment inspections
are usually kept at the generator van.
(Tr. 310). I find that
the Secretary established a violation. Equipment operators are
required to check equipment before they start using them. In
addition, the cited safety standard requires that a competent
person examine all working places for adverse conditions. This
requirement is in addition to the equipment checks. A record of
these examinations must be kept at the mine. The violation was
not serious and Hollow Contracting's negligence was moderate.
Based on the penalty criteria , I assess a civil penalty of $50
for this violation.
!Xo

CIVIL PENALTY ASSESSMENTS

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

u.s.c.

Citation Nos.

30 C.F.R. §

Assessed
Penalty

56.1000

$

WEST 95-186-M
4409918

2064

5.00

Citation Nos.

30 C.F.R.

Assessed
Penalty

§

WEST 95-433-M
4409938
4409939
4409940
4410141
4410142
4410143
4410144
4410145
4410146
4410147
4409970
4363435

56.11002
56.11002
56.4402
56.4601
56.4600(a} (2)
56.12028
56.14100(d)
56.18002(b)
56.18014
56.4330(a}
56.14132(b} (2)
56.1000

$

20.00
20.00
20.00
175.00
vacated
50.00
20.00
50.00
20.00
20.00
300.00
vacated

WEST 95-448-M
4409919
4409920
4409921
4409922
4409923
4409924
4409925
4409926
4409927
4409928
4409929
4409930
4409931
4409932
4409933
4409934
4409935
4409936
4409937

56.9300
56.14112(b)
56 . 14107{a)
56 . 14108
56.14107(a)
56.14107(a)
56 . 14107(a)
56.14107(a)
56.14107{a)
56.14107(a)
56.14107(a)
56.14107(a)
56.12032
56.14107{a)
56.4201(b)
56.4201(b)
56.12030
56.12025
56.12008

100 . 00
20.00
100.00
20.00
50.00
100.00
50.00
50.00
100.00
100.00
100.00
100.00
50.00
vacated
10.00
10.00
50.00
50.00
300.00

WEST 95-549-M
4410149

5 0.40

Total Penalty

2065

5.00
$2,065.00

III.

ORDER

Accordingly, the citations listed above are VACATED or
AFFZRMED as indicated, and Hollow Contracting, Inc . is ORDERED TO
PAY the Secretary of Labor the sum of $2,065.00 within 40 days of

the date of this decision.

Richard w. Manning
Administrative Law Judge

Distribution:
Barbara J. Renowden and Gary L. Grimes, Conference and Litigation
Representatives, Mine Safety and Health Administration, P . O. Box
25367, Denver, co 80225-0367 (Certified Mail)
Mr. William J. Hollow, President, HOLLOW CONTRACTING, INC., 601
Garden Avenue, Butte, MT 59701 (Certified Ma il)
RWM

2066

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

NOV 2 5 1996
DAY BRANCH COAL COMPANY, INC.
and BOBBY JOE HENSLEY,
Contestants
v.

CONTEST PROCEEDINGS
Docket Nos. KENT 94-1077-R
Order No. 3822201; 7/8/94

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

Thru
Docket Nos. KENT 94-1190-R
Order No . 4489780 ; 7/8/94
(See the attached list)

I

Mine No. 9
Mine ID 15-16418
ORDER OF DISMISSAL

Before:

Judge .Maurer

Respondent's renewed motion to dismiss the above-captioned
Notices of Contest is granted based on the assertions set forth
in the motion.
More specifically, the contestants have failed to contest
the penalty proposals in these matters. Proposals for assessment
of civil penalties regarding the citations/orders contained in
these cases were made to both contestants via two groups of
assessments on January 17, 1995, and September 17, 1995. To
date, no contests of the proposed assessments have ever been
filed .
Accordingly, pursuant to 29 C.F.R. § 2700.27, the
Secretary's proposed penalty assessments are deemed to be a final
order of the Commission. That being so, it appears that the
contest herein of the same citations/orders has been rendered
moot. These cases are therefore DISMISSED .

2067

Distribution:
Bobby Joe Hensley, President, Day Branch Coal Company, Inc.,
P . o. Box 204, Cawood, KY 40815 (Certified Mail)
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)

dcp

2068

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

NOV 2 5 1996
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 95- 310
A. C. No. 12-02033-03672

v.

Docket No. LAKE 95- 321
A. C. No. 12-02033- 03674

BUCK CREEK COAL, INC . ,
Respondent

Docket No. LAKE 95- 326
A. C. No. 12-02033-03675
Docket NO. LAKE 95-335
A. C. No . 12-02033 - 03677
Docket No. LAKE 95-340
A. C. No. 12-02033 - 03679
Docket No. LAKE 95 - 358
A. C. No . 12-02033 - 03680
Docket No. LAKE 96-9
A. C. No. 12-02033 - 03689
Docket No. LAKE 96-1 8
A. C. No. 12 - 02033 - 03692
Docket No. LAKE 96-27
A. C. No . 12-02033- 03694
Docket No. LAKE 96-32
A. C. No. 12 - 02033- 03695
Docket No . LAKE 96- 43
A. C. No . 12-02033~03696
Docket No . LAKE 96-44
A. C. No . 12-02033- 03697
Docket No . LAKE 96- 51
A. C. No. 12- 02033 - 03699
Docket No. LAKE 96- 62
A. C. No . 12 - 02033- 03700

2069

Docket No. LAKE 96-73
A. C. No. 12 -02 033-03702
Docket No. LAKE 96-74
A. C. No. 12-02033-03703
Docket No. LAKE 96-76
A. C. No. 12-02033-03701
Docket No. LAKE 96-9 9
A . C. No. 12-02033-03704

Buck Creek Mine
DEFAULT DECISION

Before:

Judge Maurer

These cases are before me on Petitions for Assessment of
Civil Penalty filed by the Secretary of Labor;, acting through
his Mine Safety and Health Administration (MSHA) , against Buck
Creek Coal, Inc. pursuant to section 105 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815. The petitions
allege 188 violations of the Secretary's mandatory health and
safety standards anp seek penalties of $44,367. For the reasons
set forth below, I find the company in default, affirm the orders
and citations, and assess penalties of $44,367.
On May 10, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
respondent. On June 28, 1996, counsel filed a Motion to Compel
stating that Buck Creek had received the discovery requests on
May 13, 1996, but had not responded to them. Consequently, the
Secretary requested that the company be compelled to respond to
the requests and that if the company did not respond to the
requests a default decision be issued in the proceedings.
Buck Creek did not respond to the Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on
September 19, 1996. Buck Creek was ordered to respond to the
Secretary's discovery requests within 15 days of the date of the
order. The company was further cautioned that "[f)ailure to
respond will result in the issuance of an Order of Default,
without the issuance of a prior Order to Show Cause.

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the

2070

company's bankruptcy counsel . Return Receipt Cards have been
received from all three indicating that the order was received on
either September 23 or 24, 1996.
On October 18, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 u.s .c . § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v . Jim Walter Resources, Inc.,
12 FMSHRC 1521, 1530 (August 1990 ).
Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . . . " Commission
Rule 66(a), 29 C.F . R. § 2700 . 66(a), requires that "[w]hen a party
fails to comply with an order of a Judge . . . an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate t hat that conclusion was correct .
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirement of Rule 66(a)
were complied with .
OEDER

Based on the above, I find the respondent, Buck Creek Coal,
Inc., in default in these cases. Accordingly, all citations/
orders contained in the captioned dockets are AFFIRMED.

2071

Buck Creek Coal, Inc., or its successor, is ORDBRBD TO PAY civil
penalt ies of $44,367 within 30 days of the date of this decision.
Upon receipt of payment, these proceedings are DISMJ:SSBD.

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department
of Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified
Mail)
Chuck Shultise, President, Buck Creek Coal Company, Inc.,
RR 5, Box 203, Sullivan, IN 47882 (Certified Mail)
Randall Hammond, Superintendent, Buck Creek Coal Company, Inc.,
2156 South County Road, 50 West Street, Sullivan, IN 47882
Terry G. Farmer, Esq., 708 Hulman Building, P. 0. Box 657,
Evansville, IN 47704 (Certified Mail)
dcp

2072

ADMINISTRATIVE LAW JUDGE ORDERS

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

NOV 1 4 1996
SAMUEL J. MCLAUGHLIN, Employed
by CONSOLIDATION COAL COMPANY
Applicant

EQUAL ACCESS TO JUSTICE
PROCEEDINGS
Docket No. EAJ 96-5

v.
Formerly WEVA 94-366
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
ORl)ER REOOIRING FQRTBER SQBMISSIONS

This proceeding arises under the Equal Access to Justice Act
(28 U. S.C. § 2412, ~ ~ . ) (EAJA). The Applicant, Samuel J .
McLaughlin, seeks an award of legal fees and expenses resulting
from his defense of the Secretary of Labor's allegation that
McLaughlin "knowingly, authorized , ordered, or carried out" a
violation of 30 C.F.R. § 75 . 1101-23, a mandatory safety standard
for underground coal mines . The allegation was the subject of a
civil penalty proceeding filed by the Secretary pursuant to
section llO(c) of the Federal Mine Safety and Health Act of 1977
{30 U.S.C . § 820(c); Secretary of Labor. Mine Safety and Health
Administration (MSHA) y. Samuel J. McLaughlin, employed by
Consolidation Coal Company, Docket No. WEVA 94·-366) . The
proceeding was consolidated with other civil penalty proceedings
(Consolidation Coal Company, Docket No. WEVA 94-57 , .Q:.....I...
Straface employed by Consolidation Coal Company, Docket No. WEVA
94-368, and Robert Welch . employed by Consolidation Coal Company,
Docket No. WEVA 94-384), and the cases were tried together at a
duly noticed hearing .
After the hearing, the Secretary moved to dismiss the
section llO (c) allegation against McLaughlin.
I granted the
motion in a decision on the merits of the consolidated cases.
I
stated, "[T)he Secretary [has] moved to dismiss the section
llO(c) allegation against McLaughlin . . . . The case is the
Secretary' s to bring and the Secretary's to prosecute . I do not
question the Secretary's judgement in this regard" (Consolidation
Coal Company, 16 FMSHRC 1189, 1238-39, (July 1996)) .

2073

The decision was appealed to the Commission, which granted
review on August 28, 1996. Because review does not encompass
that portion of the decision dismissing the section llO(c}
allegation against McLaughlin, I regard the dismissal as final
for the purpose of this proceeding (~ 29 C . F.R. § . 2704.204(c}}.
NEED FOR FURTHER SUBMISSIONS
The Commission's rules require determination of an EAJA
award to be based on the record of the proceeding for which fees
and expenses are sought, except that the judge may order such
further proceedings or submissions as are necessary for full and
fair resolution of issues arising from the application (29 C.F . R .
§ 2704.306(b}}.
The first prerequis i te for EAJA entitlement is that the
award be made to a "prevailing party . " McLaughlin meets this
requirement. He was a "party" to the underlying civil penalty
proceeding , and the Secretary's case against him was dismissed on
the Secretary's motion.
Second, if a prevailing party is an individual, he or she
must have a net worth of no more than $2 million; or, if a
business, must have a net worth of no more than $7 million with
no more than 500 employees (28 U.S.C . § 2412(d) (2) (B)) .
McLaughlin is an individual and his net worth is less than $2
million .
(The Sec r etary does not dispute McLaughlin's sworn
statement that his net worth (assets less liabilities) is
$115,302 . 51 (Application for Award of Fees, Exh . A; ~ Sec.'s
Response to Application) .
Thus, McLaughlin meets two of the prerequisites for
entitlement , and, under the Commission' s rules, the burden shifts
to the Secreta ry to establish that the position taken against
McLaughlin was "substantially justified" (29 C.F.R.
§ 2704 . 105(a)).
However, before the ~ssue of justification can
be considered , there is a question that requires further
submissions from McLaughlin.
McLaughlin seeks attorneys fees of $19,695 and costs and
expenses of $13 , 044 . 97. He claims this represents "~
attorney's fees and expenses in defending the . . . section
llO(c) proceeding brought against him by the Secretary" (~ 4,
emphasis added). Appendix B, which is attached to McLaughlin's
application , details his claims, but as the Secretary 's counsel
notes, McLaughlin has not submitted any evidence that "he
actually incurred the costs and expenses listed" (Sec.'s Response
to Application 15).

2074

The principal purpose of the EAJA is to "to avoid the
deterring effect which liability for attorney fees might have on
parties' willingness and ability to litigate meritorious civil
claims or defenses against the Government" (U . S. v . Paisley, 957
F.2d 1161,1164 (4th Cir . 1992)). Obviously, if another party
pays the claimed fees and expenses; or, if the claimant knows,
through a formal agreement or otherwise, that another party wi ll
pay them, the claimant may not be hindered in the ability to
litigate . Obviously , as well, the claimant may subvert the "net
worth" prerequisi te of§ 2412(d) (2) (B) , by "standing in" for a
business worth more than $7 million and with more than 500
employees. The claimant may not have "incurred" the costs within
the meaning of§ 2412{d) (1) (A) (S . E . C. v . Cornserv Corp, 908 F2d
14 0 7 , 1413 -1416 (8th Cir . 19 9 0) ) .
In such instances, the party seeking reimbursement may have
to establish that he or she actually paid or was otherwise
responsible for the claimed amounts and was not reimbursed, or
was not entitled to reimbursement.
ACCORDINGLY, it is ORDERED that within 15 days of the date
of this order McLaughlin submit the following:
1.

A copy of the bill for each fee and expense claimed;

2.

A copy of the check or receipt showing the identity of
the payee , the amount of the payment and the date of
payment for each fee and expense claimed;

3.

A copy of any written contract or other written
agreement entitling McLaugh l in to reimbursement for
payment of any fee and expense claimed, or a sworn
written description of any such oral agreement;

4.

If McLaughlin has paid any of fees or expense claimed,
and has been reimbursed , a sworn statement
specifying the fee or expense paid, the date of
payment, the amount and date of reimbursement and the
identity of the reimbursing entity;

5.

If another entity or person has paid any claimed fee or
expense, a sworn statement specifying the fee or expense
paid, the identity of the payer and when such payments
were made;

2075

6.

If another entity or person has promised or otherwise
entered into an obligation to pay any of the claimed
amounts but has not yet paid them, a sworn · statement
explaining the details of said promise or obligation,
include the identity of the entity or person obligated
to pay and any contingencies attending the promise or
obligation .

JJ~~;<l~-----David Barbour
Administrative Law Judge
Distribution :
Stephen D. Williams, Esq., Steptoe & Johnson, P.O. Box 2190,
Clarksburg, WV 26302-2190 (Certified Mail)
James B. Crawford, Esq . , Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd . , 4th Floor, Arlington , VA 22203
(Certified Mail)
/lt

2076

PEDERAL MINE SAPETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
November 15, 1996

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 95-434-M
A.C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C. No. 26-00500-55443

v.
NEWMONT GOLD COMPANY,
Respondent

south Area - Gold Quarry

ORDER DENYING MOTION FOR AllICUS CURIAE STATUS

Santa Fe Pacific Gold Corporation ("Santa Fe") filed a
motion under 29 C.F.R. § 2700.4(c) to participate as amicus
curiae in these proceedings. As grounds for the motion, Santa Fe
states that it recently received citations alleging violations of
30 C.F.R. §§ 56.20011 and 56.20014 that raise similar allegations
concerning mercury as the citations in these cases. The motion
also states that Santa Fe has been "closely monitoring" the
mercury issues raised in these proceedings. Finally, Santa Fe
states that the outcome of these cases will have a significant
effect on the mining community and on Santa Fe in particular.
Santa Fe maintains that its participation will not delay the
proceeding or prejudice the adjudication of the issues.
The Secretary opposes the motion. He states that the fact
that Santa Fe is, or will be, involved in similar proceedings
under the Mine Act does not justify its admission in this case as
amicus curiae. The Secretary also contends that Santa Fe has ·not
demonstrated that counsel for Newmont Gold Company ("Newmont") is
unable to represent Newmont's interests in these cases or that
counsel requires assistance. In addition, the Secretary_
maintains that because Santa Fe's interests are identical to
Newmont's, Santa Fe's participation would not offer additional
insight to the court.
The Commission's procedural rule provides that participation
as amicus curiae is not a matter of right but is committed to the
sound discretion . of the judge. While granting Santa Fe's motion
may not delay these proceedings, its participation will not
advance the adjudication of the issues raised. Newmont's
2077

interests are fully represented by its counsel. Santa Fe has
contested the citations issued at its mine. Santa Fe will be
given the opportunity to fully contest the citations issued at
its mine and my decision in the present cases will not be binding
on the judge in Santa Fe's case.
I do not believe that Santa Fe will be able to assist the
court in reaching a just result in these cases. It will not be
in a position to present additional facts. Newmont is thoroughly
litigating all issues raised by these cases. It is highly
unlikely that Santa Fe will present an analysis of the legal
issues that is different from that presented by Newmont's
counsel . Indeed, Newmont and Santa Fe are represented by the
same attorney .
I find that participation by Santa Fe as amicus curiae will
not assist me in resolving the issues raised in these proceedings. Accordingly, Santa Fe's motion to participate as amicus
curiae is DENIED.

Distribution:
Jeanne M. Colby , Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Suite 1.110, San Francisco, CA
94105-2999
Henry Chajet, Esq., PATTON BOGGS,' 2550 M Street NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
RWM

2 07 8

FEDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
November 29, 1996

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

v.
NEWMONT GOLD COMPANY,
Respondent

.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-434-M
A.C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C. No. 26-00500-05543
South Area - Gold Quarry

ORDER DENYING RESPONDENT'S MOTION IN LIHINE
TO EXCLUD'E EVIDENCE CONCERNING EVENTS PRIOR TO 1995
Newmont Gold Company ("Newmont") filed a motion in limine to
prohibit the Secretary from introducing any evidence at the
hearing "relating to events or circumstances occurring before
January 1, 1995." Newmont argues that the citations and orders
at issue in these proceedings were issued on March 14, 1995, and
that evidence concerning conditions at the mine prior to January
1, 1995, "would not be relevant to or probative of any material
fact in this case and would waste the Court's and the parties'
time." The Secretary opposes Newmont's motion.
Based on my review of Newmont's motion and memorandum in
support of the motion, and the arguments presented in our
conference call of November 27, 1996, I find that Newmont's
motion lacks merit. One of the citations and both orders allege
that the violations were the result of Newmont's unwarrantable
failure to comply with the standards and allege that Newmont's
negligence was high with respect to the violations. As .part of
his proof of these allegations, the Secretary may wish to attempt
to establish that the alleged violative conditions had existed
with Newmont's knowledge for a considerable length of time. Such
evidence is frequently used to establish an unwarrantable failure
finding .
Newmont argue s that under the circumstances of these cases
such proof will not establish an unwarrantable failure because it
had no notice that the cited conditions violated any of MSHA's
standards. Indeed, it argues that MSHA's own inspectors did not
consider the cited conditions to be a violation until they were
told to issue the citations at issue in these proceedings. Newmont's motion would prohibit the Secretary from offering proof of
2079

Newmont's unwarrantable failure.
Newmont is free to make its
argument but it cannot prevent the Secretary from submitting evidence to establish high negligence or an unwarrantable failure.
The fact that Newmont does not agree with the Secretary's
position is, of course, irrelevant.
In part, Newmont is concerned that the evidence the Secretary may present on this issue will be unnecessarily repetitious,
cumulative, and a "waste" of time. I expect both parties to
organize and present their evidence in a manner that effectively
uses the time set for hearing. The parties shall not present
evidence that is unduly repetitious or that goes into more detail
than is necessary to establish their point. The underlying facts
in these cases do not appear to be particularly complicated and I
expect the parties to present their cases with that in mind.
Accordingly, Newmont's motion in limine to exclude evidence
c onc erning events prior to 1995 is DENIED.

~

Richard w. Manning
Administrative Law Judge

Distribution:
;-

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor , 71 Stevenson St., Suite 1110, San Francisco, CA 941052999
Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq., Office of the Solicitor, U.S . Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203

RWM

2080
•tJ .s. GOV~ PRINTIJIG 0Fl'IC£: 1996- 417-508/63380