DECEMBER 1995

CQMMISSION ORPERS
12-26-95

General Road Trucking Corp-.

YORK 95-102-M

Pg_. 2165

KENT 96-52-D
KENT 95-472
WEST 94-370
WEVA 92-15-R
WEST 95-373-DM
CENT 94-108-M

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

WEST 96-81-D

Pg. 2231

LAKE 94-72
WEST 95-426-M
SE
95-451-M
SE
95-432-M

Pg.
Pg.
Pg.
Pg.

ADMINISTRATIVE LAW JUDGE DECISIONS
12-05-95
12-07-95
12-12-95
12-13-95
12-15-95
1.2-1.8-95
12-18-95

Sec. Labor for Frank Scott v. Leeco, Inc.
Hobert Vernon Gentry
Thunder . Basin Coal Company
Southern Minerals, et al.
Oliver J. Boutet v. Ames Construction
Western Mobile New Mexico, Inc.
Sec. Labor for Arthur Olmstead v.
Knife River Mining Co.

2167
2177
2184
2191
2220
2222

ADMINISTRATIVE LAW, JUPGE ORDERS
12-08-95
12-14-95
12-18-95
12-18-95

Buck Creek Coal, Inc.
Intermountain Ireco, Inc.
ECC International
C.T. Harris Incorporated

i

2233
2238
2241
2243

DBCEHBBR

1995

Reyiew was granted in ·the for lowing cases during the month of December:

Secretary of Labor, MSHA v. Amax Coal Company, Docket No. LAKE 95-267 .
(Judge Amchan, October 24, 1995)
Billy R. Mcclanahan v. Wellmore Coal Incorporated, Docket No. VA 95-9-D.
(Judge Barbour, October 30, 1995)
Rock of Ages Corporation v. Secretary of Labor, MSHA, Docket Nos. YORK 94-76-RM
through YORK 94-83-RM .
(Judge Feldman, November 3, 1995)
Secretary of Labor, MSHA v. General Road Trucking Corporation, Docket No.
YORK 95-102-M.
(Chief Judge Merlin, unpublished Default Order issued November
20, 1995)
Secretary of Labor, MSHA v. Consolidation Coal Co., Robert Wyatt & Danny
Crutchfield, Docket Nos. WEVA 94-377, etc.
(Judge Koutras, November 20, 1995)
Secretary of Labor on behalf of William Kaczmarczyk v. Reading Anthracite
Company, Docket No. PENN 95-1-D.
(Judge Amchan, November 22, 1995)

There were no cases filed in which Review was not granted.

ii

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 8TH FLOOR
WASHINGTON, D.C. 20006

December 26 , 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. YORK 95-102-M

GENERAL ROAD TRUCKING CORP.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

ORPER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"). On November 20, 1995, Chief
Administrative Law Judge Paul Merlin issued an Order of Default to General Road Trucking
Corp. ("General Road") for failing to answer the proposal for assessment of penalty filed by the
Secretary of Labor on June 26, 1995, or the judge's Order to Respondent to Show Cause issued
on September 14, 1995. The judge assessed the civil penalty of$1,200 proposed by the
Secretary.
On December 4, 1995, the Commission received a letter from General Road's secretary
asserting that "Mr. Anthony ... does not run this piant," "does not understand why he is
considered in violation," and that "[t]his was his initial statement and the reason he requested a
hearing."
The judge's jurisdiction in this matter terminated when his decision was issued on
November 20, 1995. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a}. We deem General Road's letter to be a timely filed petition for discretionary

2165

review, which we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September

1988).
On the basis of the present record, we are unable to evaluate tlie merits of General Road's
position. In the interest of justice, we vacate the default order and remand this matter to the
judge, who shall determine whether relief from default is warranted. See Amber Coal Co.,
11FMSHRC131 , 132-33 (February 1989).

f-~LL/ tf, ~~
Joyce A. Doyle, Commissioner

Arlene Holen, Commissioner

2166

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

December 5, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
-On behalf of Frank Scott,
Complainant
v.

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 96 52-D
BARB CD 95-21
Mine No. 68

LEECO, INCORPORATED,
Respondent
ORDER GBANTING TEMPORARY REINSTATEMENT

On November 13, 1995, the Secretary of Labor (Secretary)
filed an application for an order requiring Leeco, Inc. (Leeco),
to reinstate temporarily Frank Scott to the position he held
immediately prior to June 12, 1995, or to a similar position at
the same rate of pay and with the same or equivalent duties. The
application was supported by the affidavit of Ronnie Brock,
Supervisory Special Investigator of the Mine Safety and Health
Administration (MSHA), and by a copy of the complaint of
discrimination filed by the Secretary on behalf of Scott.
On November 17, 1995, counsel for Leeco requested a hearing
on the application. On November 20, 1995, Tony Oppegard entered
his appearance as counsel for Scott.
Pursuant to the agreement of the parties, the matter was
heard on November 28, 1995, in Hazard, Kentucky.
Prior to the presentation of 'testimony, I summarized the
pleadings and reminded counsels that the issue to be decided was
narrow -- namely, whether Scott's complaint of discrimination
was "not frivolously brought," as that term is used in section
105(c) (2) of the Federal Mine Safety and Health Act of 1977
(Mine Act) (30 u.s.c. § 815 (c) (2)).

2167

THE TESTIMONY
THE SECRETARY'S WITNESS
FRANK SCOTT
Scott is a miner with 13 years of mining experience, the
last five of which has been as a mine electrician. Leeco's
No. 68 Mine is an underground coal mine consisting . of two
sections. Scott began work at the mine on March 27, 1995 .
He
quit working for Leeco on June 12, 1995, and his last day of
actual work was June 10.
On that date, Scott was scheduled to work his usual shift -the afternoon shift (3:00 p.m. - 11:30 p.m.). He arrived at the
mine around 2:30 p.m. The mine was not in production because
the belt was being moved.
Scott stated that he was advised by
David Smith, the maintenance foreman and one of Scott's
supervisors, that one of his tasks would be to install a "Y box."
(A "Y box" is similar to an elec:trical junction box.
Its purpose
is to direct the current that enters the mine to the separate
sections.)
Scott proceeded underground and began working on the ~ox .
The power was off. When the power was restored, Scott was asked
to check the equipment on one of the sections to make certain it
was operating correctly. Scott looked at his watch.
It was
approximately 4:00 p.m. The main mine fan was on.
The equipment was functioning properly and Scott went to the
belt head to advise Smith by telephone that the equipment was
''ok."
It was now about 4:30 p.m. He could not reach Smith, so
he walked to where the section foreman, Rob Collett, was working
in order to tell Collett he could not contact Smith. According
to Scott, three or four minutes ·later Smith yelled at him over
the speaker telephone and stated that all of the power had gone
off at the mine but that it should be on again in 15 minutes .
Smith then directed Scott to work on repairing a hydraul ic
drill . Scott testified he worked on the drill but could not get
it to operate properly. Scott spoke with Smith on the telephone
and Smith told him to work on repairing the continuous mining
machine.
It had broken down the previous day. Scott claimed

2168

that Smith was anxious to have the machine repaired because
production was supposed to be resumed at 12:01 a.m., on June 11.
The continuous mining machine was at the face, so scoop
transported S~·?t;t there . Hubbard
remained with Scott. The repair work required Scott to. weld a
part on the machine. While working on the machine, Scott was
asked by Hubbard if Scott thought they would have to work all
night with the mine fan off. Scott stated that he could tell
the main mine fan was not working because the smoke from the
welding stayed in the air. In addition, he could not feel an air
current. Scott believed it took him approximately one hour to
complete the welding.
Op~:t:_at:o~ ..'l'~I1sley Hubbard

Scott and Hubbard then traveled to the belthead where
Collett and Tim Kilburn, a repairman, were working . Scott
testified that he asked both men how much longer he and Hubbard
would have to stay underground when the fan was off. (Scott
claimed he did not then know the Secretary's regulations prohibit
miners from remaining underground for more than 15 minutes when
the fan has stopped (30 C.F.R. § 75.313(c} (1)) .) According to
Scott, Collett and Kilburn just looked at him, hung th~ir heads,
and said nothing.
Scott was then told by Kilburn to move the belthead cable .
Scott and Hubbard moved the cable and Scott stated that Hubbard
again asked him how long they would have to work with the fan
off.
{Scott knew the fan was still off because he felt hot
moving the cable, something that never had happened before.)
It was around 7:00 p.m . , now. Scott and Hubbard went to the
overcast to eat dinner. Scott could not hear the air whizzing
through the overcast, an indication that power was not yet~
restored to the fan. Miners James Scalf and Randal Young also
were eating at the overcast. They. asked if they would. have to
work all night with the fan off, and Sco~t said he did not know.
Scott testified that he did not leave the mine because he feared
he would be fired .
Scott continued to move cable after dinner. He finished the
task around 8:30 p.m. At this point, Kilburn left the mine in
order to get more J hooks to hang cable. Five or ten minutes

2169

later Scott heard the "Y box" begin to hum and air .began to whiz
through the over cast . Kilburn returned and Scott asked him how
the fan h ad been restarted. According to Scott, Kilburn stated
t h at he had done it.
Aroun d 9:25 p.m., Scott heard Smith and Kilburn speaking to
one another over the telephone. Scott could not decipher what
they were saying. A short time later, Kilburn told Scott t hat
Smith wanted him to stay into the next shift to build a
spillboard and to install a guard on the belthead .
Scott testified that he could not get the spillboard built
because a scoop that was necessary to bring in supplies was
inoperable . Its battery was low. Scott got a battery charger
and hooked it up to the scoop . He did not believe he could do
any more work that night, so he left the mine around 1:00 a.m.
The next day, June 11, was a Sunday. Scott discussed with
his wife the fact that on June 10, he had been underground with
the f a n off. He also stated he discussed with her two other work
practices he believed were hazardous and that he had been
requi red to do three or four times previously -- one was the
practice of hanging high voltage power lines (i . e., lines
c~rrying 12,470 volts) while the power was on and the other was
the practice of working on belt equipment guards while the belts
were operating .
{Scott did not know the specific dates when he
was asked previously to hang energized high voltage cables, but
he believed it was during the months of April, May and June.
In
addition, he did not know the specific dates when he was asked to
work on guards while the belts were running.)
After talking with
his wife, Scott stated that he resolved not to perform any more
unsafe work.
On June 12, Scott ·returned to the mine around 3:00 p.m.
In
the changing room he encountered Smith, who asked Scott to come
and speak with him in a back room. Scott changed his clothes and
met with Smith. Scott testified that Smith wanted to know why
the spillboards had not been installed on June 10 . Scott
explained that the scoop was "down . " Smith handed Scott a
written work order for June 12 (Gov. Exh. 1 ) . It listed four
jobs, included cutting part of a guard off of a belt tail piece.
Scott maintained that Smith also orally instructed him to hang a
high voltage line . Scott replied that he did not want to hang

2170

high voltage cable whi l e the power was on and that he did not
want to work on guards whi le the belts were running. · In
addition, he asked Smith about working underground on June 10,
while the power was off.
According to Scott, Smith responded that if he would not do
the work, he should leave and not come back. Scott told Smith if
that were the case, he would quit. Scott maintained that as he
was leaving the meeting with Smith, he encountered Ki l burn . He
gave Kilburn the written work order and he told Kilburn he had
quit because on June 10, he had t o work underground for four
hours while the fan was off and because he was asked to work on
the tailpiece guard while the belt was running. He stated that
at no point did he ask Smith to lay him off.
Scott maintained that prior to June 12, he never had a
discussion with Smith regarding his general job performance and
he never was disciplined by Leeco.
LEECO'S WITNESSES
PAVID SMITH
Smith has been a maintenance foreman for Leeco for the last
three years . Smith hired Scott . Smith stated that Scott's
primary duty was to keep equipment running at the mine.
Smith testified that on June 10, the main work that needed
to be done was to set up the belthead drive and tailpiece in a
neutral entry. Smith also stated that on June 10, no specific
work assignments were given to Scott.
(Usually, Smith orally
advised Scott about what he was to do before he went
underground.) As best Smith could recall, Scott was supposed to
fix the hydraulic drill. Smith stated he spoke with Scott about
this over the mine telephone. Als?, Scott was supposed to make
sure the equipment was running properly.
Smith testified that on June 10, he left the mine around
4:30 p.m. He went home and took his wife out for dinner . On his
way back from dinner, he and his wife stopped at the mine.
It
was around 9:30 p.m. or 10:00 p.m. Smith wanted to ask if the
drill had been fixed.
There was no indication that the power had
failed, and no one told Smith it had. After inquiring about the
drill, Smith left the mine.

Smith did not again speak . with Scott until June 12, when he
asked Scott to meet with him. At the meeting, Smith stated that
he asked Scott why he had not fixed the drill and why he had to
be told to do things. Smith told Scott he should take more
initiative and show a greater interest in his work. He then gave
Scott the written work assignments -for the day (Gov. Exh. 1).
According to Smith, Scott did not question him· about any of
the assignments, including the work on the belt guard. Rather,
Scott's response was to ask to be laid off. Smith told Scott he
could not lay him off and Scott then raised the subject of the
fan.
Smith testified that Scott stated something to the effect
that he could get unemployment compensation because the fan had
been off.
(Smith maintained that this was the first time he
heard about the June 10 power failure and the resulting fan
stoppage.} Aside from the fan, Scott mentioned no other
complaints to -Smith. Nor to Smith's knowledge, did Scott
complain to anyone else.
Smith knew of no instances when Scott was instructed to hang
high voltage cable while it was energized, nor did he know of any
instances when Scott was instructed to work on guards while belts
were running.
According to Smith, on about ten occasions prior to
June 12, he had spoken with Scott about his job performance and
about the need to do better work.
He kept records of some of
these conversations in his notebooks. He agreed that Scott never
had been given a written warning concerning his job performance
and never had been disciplined .
TIM KILBURN
Kilburn is a second shift repairman at the mine. On June
10, the second shift miners were Kilburn, Collett, Scalf, Young,
Hubbard and Scott. Their primary job wa~ to extend the belt line
and set up the head drive, using a battery powered scoop and the
hydraulic drill . They also were to work on the "Y box."
Kilburn went underground around 4:00 p.m. Kilburn .
understood Scott's duties to be to work on the belt line and to
repair a continuous mining machine.
Kilburn agreed with Scott that he, Kilburn, left the mine

2172

during the evening of June 10. However, he denied he had
restarted the fan, and that he told Scott he had done -s ·o .
In
fact, Kilburn denied that on June 10, he ever spoke with Scott
about the fan being off. Kilburn maintained that when he left
the mine, it was to get materials for the spillboard Scott was
supposed to install, not to restart the fan. According to
Kilburn, the fan could restart itself once power was restored.
Kilburn stated that Scott never complained to him about any
of the working conditions at the mine. Kilburn knew of no
instance in which Scott was asked to hang energized high voltage
cable.
In any event, cable usually was hung on the third shift,
not on the second shift.
In addition, he knew of only one
instance prior to June 12, when Scott had worked installing a
belt guard at a head drive. Kilburn had worked with him and the
power was not on while the work was being done.
In Kilburn's view, Scott did not like to work overtime.
According to Kilburn, on June 10 , Scott told him he would quit if
he had to work overtime that night.
On June 12, the only thing Kilburn heard Scott ask Smith was
whether Smith could get Scott unemployment compensation, or words
to that effect. Following the conversation, Scott handed his
written work order to Kilburn.
Item No. 4 of the order required
part of the guard on the belt tailpiece to be cut away. The work
was completed by another miner after Scott quit, but only after
the belt had been moved up and power to it had been cut off.
These were the same circumstances in which Scott would have been
expected to complete the task.
Before Scott le-ft the mine on June 12, he again saw Kilburn.
He told Kilburn that he had quit his job. He did not mention
anything about why he quit. Rather, he told Kilburn that 8mith
had "(obscenity] with the wrong pen~on. •1.
THE DISCRIMINATION COMPLAINT AND THE "NOT FRIVOLOUSLY BROUGHT"
STANDARD
The essence of Scott's complaint, as put forward by the
Secretary on Scott's behalf, is that prior to June 10, 1995, he
was asked to, and he did perform work at the mine that was
hazardous -- specifically, hanging energized high voltage power

2173

cables and working on mechanical equipment guards while belts
were running. Also, on June 10, he worked underground with the
fan off for an extended period. On June 12, he was ordered by
Smith to perform tasks he believed to be hazardous, and he voiced
his fears to Smith. When his fears were not addressed, he was
forced to quit.
The standard for the review of an application for temporary
reinstatement requires that the Secretary's legal theory, as well
as the Secretary's factual assertions, be not frivolous (~ J:.im
Walter Resources. Inc. v. FMSHRC , 920 F.2d 738, 747 (11th Cir.
1990) . It is abundantly clear that a miner has a right to
complain about unsafe work conditions and practices as well as a
right to refuse to work if the operator does not respond to a
reasonable complaint (Gilbert y. FMSHRC, 866 F2d. 1433, 1444
(D.C. Cir . 1989; ~ Secretary on behalf of Cooley y. Ottawa
Silica Co., 6 FMSHRC 516, 519-21 (March 1984}, aff'd ,780 F.2d
1022 (6th Cir. 1985); Price v. Monterey Coal Co., 12 FMSHRC 1505,
1514 (August 1990 (citations omitted).)
A constructive
discharge is proven when a miner who engaged in a protected
activity can show that an operator created or maintained
conditions so intolerable that a reasonable miner would have felt
compelled to resign (See. e.g., Simpson v. FMSRHC, 842 F.2d 453,
461-63 (D.C . Cir. 1988) .)
Although the merits of the Secretary's legal theory
ultimately may or may not be sustained at trial, the theory is
certainly not frivolous. The parties really do not dispute that
the fan at the mine was off for a period of time on June 10. A
miner who felt he or she had been made to work too long under
those conditions reasonably could have felt compelled to complain
about it, and to have been entitled to a meaningful response.
Moreover, if, in fact, the Secretary can establish that Scott
complained about hanging energized high voltage cables and
working on the mechanical equi~ment guards while belts were
operating -- and Scott's testimony in this regard was not
patently unbelievable or pretextual -- such complaints could also
have been reasonable and have required a reasonable response on
Leeco's part .
Further, while there is stark disagreement about whether
Scott ever was required to engage in hazardous work practices
involving high voltage cables and guarding and, if so, whether he

2174

ever lodged complaints about the practices, the resolution of the
disagreements requires credibility determinations and factual
findings appropriately made after a full trial of the issues,
with testimony from all of those involved. Moreover, and as I
have just noted, it is agreed that there is at least some factual
basis for Scott's assertions regarding the fan, · in that it did
cease to function on June 10, while Scott was underground. Smith
and Scott also agreed that at some point during their
conversation of June 12, Scott raised the matter of the fan with
Smith. Whether, as Leeco argues, Scott's motivation was whole
pretextual also involves credibility determinations and
consideration of other factual evidence and is best determined
after a complete trial of the issue.
For these reasons, I conclude that while there is
conflicting testimony on almost all of the fundamental issues, it
cannot be found that the theory behind Sc~tt's discrimination
complaint and the factual assertions associated with it are
clearly fraudulent, clearly without merit, or clearly pretextual.
Accordingly, I find that Scott's complaint is "not frivolously
brought" and that Scott is entitled to temporary reinstatement.
ORDER
Leeco is ORDERED to reinstate Frank Scott to the position he
held on June 12, or to a similar position at the same rate of pay
and with the same or equivalent duties assigned to him.

~~~f3M~v~

David F. Barbour
Administrative Law Judge

2175

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862
Patrick Graham, Vice President, Safety and Health, 100 Coal
Drive, London, KY 40741
Tony Oppegard, Esq., Appalachian Research and Defense Fund of
Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508
Leona A. Power, Esq., Reece & Lang, P.S . C., London Bank & Trust
Building, 400 South Main Street, P.O. Drawer 5087, London, KY
40745-5087
\mca

2176

PEDERAL MINE SAFETY AND HEALTH REVIEW COMMJ:SS:ION
OFFICE OF ADMINISTRATIVE LAW JODGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 95-472
A.C. No. 15-17377-03506 AISZ

v.
West Volunteer Mine
HOBERT VERNON GENTRY,
Employed by Gentry Brothers
Trucking Co., Inc.,
Respondent
DEC:IS:ION

Appearances:

Edward F. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
Payton F. Reynolds, Esq., Whitesburg, Kentucky for
Respondent.

Before:

Judge Fauver

This is a civil penalty action under§ llO(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 ~ AAQ.,
charging Respondent, Hobart Vernon Gentry, aka Hobart Gentry,
with individual liability as an agent of a corporation, Gentry
Brothers Trucking, Co., Inc.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the -substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the .Discussion below:
Fnm:tNGS OP PACT

l. At all relevant times Respondent was President of Gentry
Brothers Trucking Co., Inc., a small independent contractor that
hauled coal from the West Volunteer Mine of Andalex Resources,
Inc., an open pit mine. The coal was sold or used in interstate
commerce or with a substantial effect upon interstate commerce ·.
2177

2. Respondent personally directed and supervised the Gentry
Brothers Trucking Company and was personally aware of the
defective brakes on a truck that was involved in a fatal accident
on October 13, 1993.

3. Prior to the accident, Respondent knew that the brakes on
the truck were defective, but he failed to remove the truck from
service pending receipt of brake parts that were on order. He
also knew that no record was made of the defective brakes.
4. On October 13, 1993, Ricky Thomas Corbitt, a 27 year-old
miner with only two months experience hauling coal for the Gentry
Brothers Trucking Company, was assigned to drive the truck.
S. The truck was heavily loaded in the pit. As Corbitt was
driving up a steep ramp (about 18 degree incline) to .leave the
mine, the drive shaft broke. When the shaft broke, the engine no
longer provided any power to the wheels. Because the brakes were
defective, they could not hold the truck on the ramp and the
truck rolled backward. The truck gained momentum and went out of
control, moving backward at a fast rate. The driver attempted to
jump from the truck but did not clear the vehicle. He was
fatally struck by a part of the truck. The truck continued its
runaway descent, ending in a crash landing on its side near the
bottom of the ramp .
DXSCUSSlON WITH F'QRTJIER PXNDXHGS. CONCLUSXONS

Section llO(c) of the 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 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 subject to the same
civil penalties, fines, and imprisonment that may be imposed
upon a person under subsections (a) and d(d).
The Commission has interpreted the term ~knowingly" as follows:
as used in the Act, does not have any meaning
of bad faith or evil purpose or .criminal intent. It~
meaning is rather that used in contract law, where it means
~'Knowingly,'

2178

knowing or haying reason to know. A person has reason to
know when he has such information as would lead a person
exercising reasonable care to acquire knowledge of the fact
in question or to infer its existence."
We believe this interpretation is consistent with the
statutory language and the remedial intent of the Coal Act .
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 Ricbarason, 3 FMSHRC 8, 16 (1981) (emphasis added;
footnotes and citations omitted) , affirmed Sub nom. Richardson v.
Secretary of Labor and FHSHRC, 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U. S. 928 (1983). Accord RQY. Glenn, 6 FMSHRC
1583, 1585-1587 (1984); BethEnerg;y Mines, 14 FMSHRC 1232, 1245
(199~); Warren Steen Construction, 14 FMSHRC 1125, 1131 (1992) .
In Kenny Rjcbarclson, the Commission held that a finding of a
"knowing" violation does not require a showing that the
individual "willfully" violated the Act or regulations . Rather,
the Commission held, it need only be shown that "a person in a
position to protect employee safety and health fail[ed] to act on
the basis of information that [gave] him knowledge or reason to
know of the existence of a violative condition." 3 FMSHRC at 16 .
Respondent is charged with violations of two safety
standards, in 30 C.F.R. §§ 77.1606(a) and 77.1605(b).
Section 1606(a) provides:
Mobile loading and haulage equipment shall be inspected
by a competent person before such equipment is placed in
operation. Equipment defects affecting safety shall be
recorded and reported to the mine operator.
~ection

1605 (b). provides:

Mobile equipment shall be equipped with adequate
brakes, and all trucks and front-end loaders shall also be
equipped with parking brakes.

2179

Respondent had direct personal supervision of the operations of
the corporation. At times he worked on the brakes of Corbitt's
truck himself. At the relevant time he knew that the brakes were
defective and that parts were on order. Yet he failed to see
that the brake defects were recorded for the driver to be aware
of the actual condition of the truck and for any safety inspector
to see the safety history of the vehi·c le.
He decided that it was unnecessary to record safety defects
in the truck because he expected the driver to tell him about any
violations or unsafe conditions . In reaching that decision he
violated§ 77.1606(a). In light of Respondent's direct personal
supervision of the business, and his personal knowledge of the
brake defects and the failure to keep a record of the brake
defects, I find that as an agent of the corporation he knowingly
authorized, ordered, or carried out the violation of § 77 . 1606(a)
within the meaning of §llO(c) of the Act.
Respondent also violated§ 77.1605(b), by failing to remove
the truck from service pending repair of the brakes. The brakes
were highly defective and could not hold the truck on a steep
incline. Respondent. put the driver at severe risk in failing to
remove the truck from service. I find that Respondent knowingly
authorized, ordered, or carried out the violation of § 77.1605(b)
within the meaning of § llO(c) of the Act.
The gravity associated with both violations is very high.
The steepness of the incline made it obvious that operating a
heavily loaded truck with defective brakes put the driver at very
high risk. Failure to record the defective brakes withheld
crucial information from the driver, who may have been alerted by
such a record to seek protection afforded by the Act, e . g., to
request his employer to assign him to another vehicle or to other
duties pending repair of the defective brakes. It also withheld
crucial information from any safety inspector (company, state or
federal) that would have alerted him or her to inspect the
vehicle immediately to see whether it was safe to operate .
Finally, Respondent's failure to remove the truck from service
involved very high gravity because it subjected the driver to the
risk of a fatal injury.

2180

Section llO(i) of the Act provides:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider the operator's
history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charged, _
whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation. In proposing civil penalties
under this Act, the Secretary may rely upon a summary review
of the information available to him and shall not be
required to make findings of fact concerning the above
factors.
Section§ llO(i) refers to an operator . There . is no
dispositive case law on the application of § llO(i) criteria to
an individual in a § llO(c) case.
The corporation that employs Respondent is a small
independent contractor engaged in hauling coal by truck.
The gravity and negligence involved in the two violations
were very high. The government has not alleged an unreasonable
time in abating the violations after notice. It is presumed that
the operator made a good faith effort to abate the violations
promptly after notice.
With respect to impact of the proposed penalties on
Respondent's ability to continue in business, the record shows
that Respondent has filed for 'both corporate bankruptcy and
personal bankruptcy. I find that R~spondent and the corporation
have already placed themselves in financial jeopardy unrelated to
any civil penalty associated with these violations. The record
reflects the existence of the two bankruptcy proceedings, but
there is no indication of whether either the company or Mr .
Gentry will be able to recover from their current economic
condition and continue in business. No relationship has b~en
shown between the proposed penalties sought by the Secretary a?l:d
the financial conditions alleged by Mr . Gentry and the
corporation.

21,Bl

I find that it would be contrary to the purposes of § llO{i)
to reduce a penalty solely because of a pending bankruptcy
petition. It appears that Congress was concerned. that p~nalties
should not be so large as to affect an operator's ability to
continue a viable business . However, this does not indicate a
congressional concern to give special protection to a company or
individua.l that is defaulting on its bills to creditors and is
running the business into a state of bankruptcy without any
demonstrated relationship between its insolvency and civil
penalties assessed under the Act.
Considering all the criteria of § llO(i), I find that a
civil penalty of $2,500 is appropriate for the violation of
30 C.F.R . § 1606(a} and a civil penalty of $5,000 is appropriate
for the violation of 30 C.F.R. § 1605(b).
COHCLUSIQNS OF LAW

1.The judge has jurisdiction.
2 . Respondent knowingly violated 30 C.F.R. §§ 77.1606(a} and
77.160S(b} within the meaning of § llO(c) of the Act, as alleged

in the petition.
ORDER

WHEREFORE IT IS ORDERED that:
1 . The citation and order included in the petition are
AFFIRMED.

2. Respondent shall pay civil penalties of $7,500 within 30
days of the date of this DECISION .

U)~ ')-~~~
William Fauver
Administrative Law Judge

2182

Distribution:
Edward F. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
Payton F. Reynolds, Esq., P.O. Box 160, Whitesburg, KY
(Certified Mail)
/lt

2183

41858

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

DEC 1 2 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PRO~EDING
Docket No. WEST 94-370
A.C. No. 48-00977-03525
Black Thunder Mine

THUNDER BASIN COAL COMPANY,
Respondent
DECJ;S:tON

Before:

Judge Arnchan
Factual Background1

In September 1990, eight miners employed at Thunder Basin's
surface coal mine near Wright, Wyoming, signed a form designating
Dallas Wolf and Robert Butero as their representatives under
section 103(£) and Part 40 of Volume 30 of the Code of Federal
Regulations. The principal function of a miners' representative
under these provisions is to accompany MSHA personnel during
their inspections of an operator's worksite. Such representatives may also obtain an immediate inspection of a mine pursuant
to section l03(g) of the Act.
Respondent refused to recognize Wolf and Butero as miners'
representatives and refused to post the form so designating them
as required by 40 C.F.R. §40.4. Wolf and Butera have never been
employees of Thunder Basin. Wolf is the principal organizer of
the United Mine Workers of America (UMWA) in the Powder River
Basin. Butero is a health and safety official of the UMWA.

I regard the material facts in this case to be undisputed.
The specific findings herein are based on portions of the record
identified in my summary decision of May 11, 1994, 16 FMSHRC
1070, 1072-74 . These findings were incorporated by reference in
my August 24, 1994 decision on remand, 16 FMSHRC 1849.
1

2184

Respondent's Black Thunder mine is non-union and the
company has successful·l y resisted UMWA attempts to organize its
workforce. In 1987 the UMWA lost an election conducted pursuant
to the National Labor Relations Act by a vote of 307 to 56. The
company regarded the designation of Wolf and Butero as miners'
representatives to be motivated primarily, if not solely, by
the desire of a few of its miners to assist the UMWA in its
organizational efforts.
In March 1992, Thunder Basin sought and obtained an
injunction from the United States District Court for the District
of Wyoming prohibiting MSHA from enforcing the Part 40 designation of Wolf and Butero. However, both the United States Court
of Appeals for the Tenth Circuit and the United States Supreme
Court held that the District Court did ·not have jurisdiction to
issue the injunction, Thunder Basin eoal Company v. Martin,
969 F.2d 970, 973 (10th Cir. 1992); Thunder Basin Coal Co. v.
Reich, 510 U.S.
, 114 S.Ct . 771, 127 L.Ed.2d 29 (1994).
In March 1993, the Commission, in Kerr-McGee Coal
eorporation, 15 FMSHRC 352, decided that designation of the same
union officials as miners' representatives at another non-union
mine in the same county as the Black Thunder mine was not
invalid, '2.e..I.: ~.
A citation issued to Kerr-McGee for failure to
post the form so designating Wolf and Butero was affirmed.
On January 21, 1994, two days after the Supreme Court
decision, and an MSHA internal communication regarding that
decision, Thunder Basin's President, James A. Herickhoff, wrote
the MSHA District Manager in Denver, Colorado. He requested
that the agency issue a citation to resolve the miners'
representative issue at the Black Thunder mine. Herickoff stated
further that Respondent expected MSHA to specify an abatement
time "sufficient for the parties to pursue resolution of this
important issue before the Commission and the courts."
\

MSHA inspector James A. Beam issued such a · citation (No.
3589040) at 8:10 a . m. on February 22,· 1994. The citation
required abatement within 15 minutes. When this period elapsed
without compliance by Respondent, Beam issued Order No. 3589101
pursuant to section 104(b) of the Act. The order did not require
Respondent to withdraw miners from any area of the mine or cease

2185

any of its operations. Within hours Thunder Basin filed an
application for temporary relief with the Commission and an
application for an expedited hearing on the application.
On March 11, 1994, MSHA's Office of Assessments informed
Respondent of its intention to assess a $2,000 daily penalty
for each day that the company failed to post the miners'
representative form. After my March 25, 1994, decision denying
temporary relief, 16 FMSHRC 1033, MSHA informed Respondent on
March 27, 1994, that assessment of the daily penalty would
commence that day.
On March 28, 1994, Thunder Basin filed a petition for
discretionary review of my March 25, 1994 decision. The
Commission affirmed the decision on April 8, 1994, 16 FMSHRC
671. On being apprised of the Commission's decision on April 8,
Thunder Basin posted the miners' representative notice.
The denouement of the litigation regarding the miners'
representative can be summarized as follows:
August 24, 1994, ALJ decision affirming the
citation/order in this case, 16 FMSHRC 1849;
I

December 2, 1994, Court of Appeals for the
District of Columbia affirms Review Commission
decision in Kerr-McGee v . FMSHRC , 40 F.3d 1257
(D.C. Cir. 1994};
June 7, 1995, U.S. Court of Appeals for the
Tenth Circuit affirms Commission decision jn
the instant case, Thunder Basin Coal Co v.
fMSffRC, 56 F . 3d 1275 (10th Cir. 1995) 2 •
June 26, 1995, U.S. Supreme Court declines to
grant certiorari in Kerr-McGee,
U.S.
115 S.Ct. 2611, 132 L . Ed. 2d. 854 (1995).

The Commission did not grant Respondent's petition for
review of the ALJ decision, which became a final order of the
Commission.
2

2 1 86

The Secretary has proposed a penalty of $360 for the initial
citation and a daily penalty of $2,000 for Respondent's failure
to timely abate that citation. The Secretary's Complaint asks
for a total penalty of $26,360. The $2,000 daily penalty is
proposed from March 27, 1994, to April 8, 1994 . This is the
period from which MSHA informed Respondent that it would assess a
daily penalty to the date the miners' representative form was
posted.
Assessment of A Ciyil Penalty
Section llO(b) of the Act provides that an operator who
fails to correct a violation for which a citation has been issued
within the period permitted for its correction ~ be assessed a
civil penalty of not more than $5,000 for each day during which
such failure or violation continues . The Commission is given
authority to assess all civil penalties provided for in the Act
in section llO(i).
The latter section directs that the Commission shall
consider six criteria in assessing penalties: the operator's
history of previous violations, the size of the operator, the
negligence of the operator, the gravity of the violation, the
effect of the penalty on the operator's ability to stay in
business and the good faith of the operator in achieving rapid
compliance after being notified of the violation . The parties
have stipulated as to four of the criteria.
Thunder Basin had 23 violations of the Act in the two years
preceding the posting violation . It had no prior violations of
the cited provisions, nor any prior penalties assessed pursuant
to section llO(b). It is a large operator and a $26,360 penalty
would not affect its ability to stay. in business. The parties
also stipulated that the gravity of the violation was "low," that
it was not "significant and substantial," that no lost workdays
could be expected and that there was no likelihood of injury due
to the violation .
. Thus, the only criteria at issue are the good faith of
Respondent in achieving abatement and its negligence. As to the
latter, Respondent did not negligently fail to post the miners'
representative notice, it intentionally did not do so. The real
question is Respondent's ~good faith.n
2187

A better way of phrasing . the issue, however, is whether
Respondent should be assessed a substantial civil penalty for its
insistence on exhausting all avenues of judicial review prior to
complying with the citation . The Secretary contends that ThW'.lder
Basin's course violates the fundamental enforcement scheme of the
statute. As the Secretary points out, that scheme requires an
operator to abate a citation within the time set by MSHA, even if
it contests the citation. Further, the Secretary argues that ·an
operator who stands upon his rights, waiting for an adjudication
of the citation's validity, assumes the risk that if the citation
is upheld that it will be assessed the daily penalties provided
for in section llO(b).
Respondent argues that the citation in this case is quite
different than the typical MSHA citation. First, it asserts that
the health and safety of its employees was not affected by its
failure to post the miners' representative notice. Secondly, it
argues that given the harm done to its rights under the National
Labor Relations Act to fairly challenge the UMWA's organizational
drive, it was entitled to wait until the Conunission ruled on its
application for te~porary relief before posting the notice.
The difficulty with Respondent's position is that the
Commission had already spoken on the issue in this case prior
to the issuance of instant citation and order. Respondent, at
numerous junctures, has argued that the facts in its case were
distinguishable from those in Kerr-McGee.- I rejected that
argument in my March 25, 1994, decision on Respondent's
application for temporary relief, 16 FMSHRC 1033 at 1037-38.
I reiterate my belief that any fair reading of the
Kerr-McGee decision establishes that the Conunission was fully
aware that the designation of Wolf and Butero as miners'
representatives was made in part, if not primarily, to assist
the UMWA organizational drive at Kerr-McGee. Kerr-McGee is
indistinguishable from the instant matter. This being the
case, I conclude that MSHA was acting reasonably in refusing to
extend the abatement date to allow Thunder Basin to adjudicate
the validity of the citation issued to it on February 22, 1994,
Martinka Coal Co, 15 FMSHRC 2452 (December 1993) .

2i88

Assessing the penalty in this case requires a balancing of
two considerations. First is what I conclude was Thunder Basin's
insistence of getting a ~second bite of the apple" in the
adjudica.tion process despite the Commission's decision in
Kerr-McGee. As I stated in my March 25, 1994 Order Denying
Temporary Relief, this is analogous to requesting a stay of the
Kerr-McGee decision, which is expressly prohibited by section
106{c) of the Act.
On the other hand, I agree with Respondent that this is not
a case in which its failure to abate necessarily exposed miners
to hazards. Indeed, I conclude that whether it did so is purely
speculative. Only if Wolf or Butera could have apprised MSHA of
hazards at Respondent's mine of which miners at the site would
not have been aware would Respondent's noncompliance have posed a
threat to its employees. Although such a possibility existed, I
conclude that any danger arising from Respondent's failure to
abate was very remote.
Finally, I have given consideration to Respondent's
argument, at pages 14-15 of its brief, that in part it was
relying on assurances from the Commission and Tenth Circuit
that it would not be subject to daily penalties if it chose to
litigate rather than abate. The decisions on which it relies,
Mid-Continent Resources. Inc., 12 FMSHRC 949 (May 1990} and the
Tenth Circuit decision overturning the injunction, predate the
Commission's decision in Kerr-McGee. Once the Commission decided
Kerr-McGee, Respondent's reliance on these assurances was
unreasonable.
Balancing the aforementioned factors, I conclude that an
appropriate penalty is $lOO 'per day from March 27, 1994 to
April 8, 1994; a total penalty of $.l,300. Respondent co~ld have
been assessed a daily penalty commencing February 22, 1994.
However, MSHA proposed a daily penalty from March 27, and I
conclude that the $2,000 per day proposal is muph too high
given the low gravity of the violation.

2189

QRDIR

Respondent is hereby ordered to pay to the Secretary of
Labor the sum of $1,300 within 30 days of this decision. Upon
such payment this case is dismissed.

~~~

Arthur J. Amchan
Administrative Law Judge
Distribution :
Margaret A. Miller, Esq., Office of the Solicitor,
U.S . Department of Labor, 1999 Broadway, Suite 1600 ,
Denver, CO 80202 (Certified Mail)
Timothy M. Biddle, Esq . , Thomas C. Means, Esq.,
Crowell & Moring , 1001 Pennsylvania Avenue, N. W.,
Washington, D.C. 20004-2595 (Certified Mail )
Thomas F. Linn, Esq . , Thunder Basin Coal Co.,
555 17th St . , Suite 2000, Denver, CO 80202
(Certified Mail)
/lh

2 1 90

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINJSTRATIVE LAW JUDGES
2 SKYLINE, I 0th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH. VIRGINIA 22041

UE~ \ 3 1995
SOUTHERN MINERALS, INC. ,
TRUE ENERGY COAL SALES , INC.,
and FIRE CREEK, INC.
Contestants

CONTEST PROCEEDINGS
Docket Nos . WEVA 92-15-R
through WEVA 92 - 116-R

v.

Fire Creek No. l Mine
Mine ID No . 46-07512

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

CIVIL PENALTY PROCEEDINGS
Docket Nos . WEVA 92-786
through WEVA 92-791

v.
Fire Creek No .

l

Mine

SOtrrHERN MINERALS INC . ,
TRUE ENERGY COAL SALES, INC . ,
FIRE CREEK, INC.,
Respondents
I

PARTIAL PECISION
Md

HQTICE OP BEARING

Before:

Judge Barbour

Appearances:

Pamela S. Silverman , Esq . , Ronald Gurka, Esq.,
Mark Malecki, Esq . , .Office of the Solicitor, U. S .
Dept. of Labor, Arlington, Virginia
On behalf of the Government;
Robert I. CUsick, Esq . , Marco M. Rajkovich, Esq . ,
Mindy G. Barfield, Esq., Jean Bird, Esq . ,
Wyatt, Tarrant & Combs, Lexington, Kentucky
on behalf of the Contestants.

These consolidated civil penalty and contest proceedings are
brought under section 105 of the Federal Mine Safety and Health

2191

Act of 1977 (Mine Act or Act, 30 U.S.C. § 815). They involve 101
alleged violations of mandatory safety standards for underground
coal mines for which aggregate civil penalties of $576.681 have
been proposed. They also involved 102 contested citations and
orders .
The cases arise out of a fatal explosion that occurred at
Fire Creek, Inc . 's (Fire Creek) No. 1 Mine. Following an
investigation of the accident, the Secretary of Labor, through
his Mine Safety and Health Administration (MSHA), issued the
contested citations and orders to Fire Creek, Southern Minerals,
Inc. (Southern Minerals) and True Energy Coal Sales, Inc. (True
Energy) (collectively, the Contestants).
The Secretary contends that the Contestants are liable
jointly and severally as operators of the mine. Southern
Minerals and True Energy respond that they are not operators
within the meaning of the Mine Act and therefore should not be
held liable. Fire Creek does not dispute the Secretary's
jurisdiction.
The proceedings were bifurcated so that the jurisdictional
status of Southern Minerals and True Energy could be resolved
prior to addressing the individual merits of the cases .
Following extensive discovery, the Secretary, Southern Minerals
and True Energy, filed cross motions for summary decision. · The
motions were denied (Southern Minerals. Inc., 17 FMSHRC 465
(March 1995} and the matter was heard in Princeton, West
Virginia. Comprehensive briefs were filed by the parties .
In denying the cross motions, I first described the general
tactual background of the proceedings and the relationships of
the parties (17 FMSHRC 466-469), .
I stated in part:
The Contestants are closely held corporations
that share some common officers and directors .
Fire Creek was organized in 1988 by D(orsey]
L[ee] ("Jack")Bowling, Brenda Bowling (Jack
Bowling's wife) and David Harold. The Bowlings
and Harold were the corporation's only
shareholders . David Harold was president and
2192

director of Fire Creek and Ronda Harold (David
Harold's wife ) was secretary/treasurer . In July
1989, Ronald Lilly obtained 10 percent of the
stock from Jack Bowling and Lilly became
secretary/treasurer. [David] Harold left Fire
Creek in October 1990, and the corporation bought
back his shares . Also, in October 1990,
W. ("Fred") St. John became the president of Fire
Creek. He and Jack Bowling serv~d as directors .
Southern Miners was organized in 1987 with
Jack Bowling as the sole stock.holder. In October
1989, the stock was divided between Jack Bowling,
his son, his daughter and St. John. Jack Bowling
served as president and [a] director, St. John
served as the vice president and [a] director, and
Brenda Bowling acted as secretary/t.r easurer.
True Energy was organized in 1986 . At that
time, Jack Bowling, his daughter and son were the
corporation's shareholders. In October 1989,
St . John acquired 20 percent of Jack Bowling's
stock, leaving Jack Bowling with 60 percent . The
other 20 percent continued to be owned by
Bowling's daughter and son . Bowling served as
president and director, St. John served as vice
president and director, and Brenda Bowling served
as secretary/treasurer.
Southern Miners had no employees. In
general, it held coal leases and subleases,
contracted with others, including Fire Creek , tQ
mine leased coal, and monitored coal production
for royalty purposes. Southern Minerals bought
the coal and sold it to True Energy . Fire Creek
operated the No. l Mine pursuant to a contract
with Southern Minerals.
Coal from the mine was processed by an
unrelated company pursuant to a contract with True
Energy, and True Energy sold the processed coal.
True Energy also provided various administrative
and technical services to Southern Minerals'

219 3

contractors, including Fire Creek.
When Harold left Fire Creek in October 1990,
Ward Bailey, an employee of Fire Creek, . . .
[became] mine manager. Bailey contacted MSHA
officials after the explosion at the mine.
Neither Bailey, nor any other Fire Creek officials
notified Southern Minerals or True Energy.
Southern Miners and True Energy were not
represented at the meetings conducted by MSHA
during the investigation of the explosion.
Neither Southern Minerals nor True Energy received
a citation or an order from MSHA regarding any
aspect of the operation at the mine until seven ·
months after the explosion, when the contested
citations [and orders] were issued. Fire Creek is
out of' business and may not be capable of paying
any penalties for any violations found to have
existed (17 FMRSHRC 467-468 ) .
Regarding the specific facts involving the relationship of
the parties, I stated in part:
Southern Minerals leased the mineral rights to the
land on which the mine is located from Pocahontas Land
Company (Pocahontas) . Southern Minerals then
contracted with Fire Creek. Southern Minerals paid
Fire Creek a royalty payment based on the amount of
coal produced at the mine . Southern Minerals also lent
funds to Fire Creek to purchase mining equipment. At
times, Fire Creek obtained advances from Southern
Minerals to cover operating expenses . . . In -general,
[the) advances were secured by future coal production.
The [a]dministrative services proved by True
Energy to Fire Creek involved handling Fire Creek ' s
business and financial records, i.e., maintaining
payroll and personnel files, monitoring workers'
compensation, medical insurance and other employee
benefits, depositing semimonthly cash receipts,
maintaining accounts receivable files, maintaining
accounts payable files, [and] monitoring cash flow

The technical services provided by True Energy t o
Fire Creek involved surveying, spad setting, map
preparation and map certification. True Energy began
surveying for Fire Creek in January 1990 . At that
time, True Energy hired two spad setters to work at the
mine . Until July 1990, Fire Creek paid True Energy for
the technical services (17 FMSHRC 468-469 (citations
omitted)} .
DENIAL OF SUMMARY DECISION

In denying the cross motions for summary decision, I
explained my understanding of what the Act reqliires for operator
status to vest in an entity. I noted that section 3(d) of the
Act defines an •operator• as, •[a]ny owner, lessee, or other
person who operates controls, or supervises a . . . mine or any
independent contractor performing services or construction work
at such mine" (30 U.S.C. § 802(d)).
I stated:
The definition clearly requires ''owners, lessees
or other persons" to participate in and/or have
authority over the operation, control or supervision of
a mine . Accordingly, it is not correct to read the
definition [so] as to make owners or lessees operators
in and of themselves(l7 FMSHRC 471) .
I also noted that section 2(e) of the Act provides that
•operators" of the nation's mines have primary responsibility for
preventing the existence of unsafe and unhealthful condi tions (30
U. S.C. § 80l(e}) and stated that, in my view, it makes no sense
to place liability on those who have not participated in creating
the conditions in a mine or who hav.e no actual authority over and
responsibility for those conditions (17 FMSHRC 471-472) . On the
other hand, placing liability on an entity or on entities who
have participated in creating the conditions in a mine or who
have the authority to so participate prov ides a spur to
compliance and to s~fer, more healthful working conditions (17
FMSHR~ 472) .

21 95

I

concluded:

[A) purely "passive entityH would not meet the
statutory definition of "operator" . . . provided the
entity did not reserve to itself authority to control
mining operations or to control the mine itself. In
other words . . . an entity that leased mineral rights
and contracted with another entity to mine coal would
subject itself to Mine Act liability if it made
decisions with respect to how coal would be mined and
how the mine would be staffed and run, or if it had the
actual authority to make such decisions (17 FMSHRC
472) .

Finally, and citing to the Commission's decision in W-P Coal
Company (16 FMSHRC 1407 (July 1994)), I stated that the aspects
of participation and supervision that make an entity an
"operator" under the statute can be gauged by analyzing the
entity's actual participation in the mine's engineering,
financial, production, personnel and safety affairs and
determining whether there is sufficient involvement in terms of
actual participation and in terms of the authority to participate
for the Secretary to proceed against the _entity (17 FMSHRC at
4 73} •

Turning to those indices of operator status, I concluded
that I could not determine from the then existing record whether
Southern Minerals and True Energy were "operators" as defined by
the Act and that additional evidence was needed (17 FMSRHC 474480) .
With regard to Southern Minerals, I looked first to its
involvement in the engineering aspects of the mine and stated I
could not find whether it was such as to constitute the control
envisioned by the Act (17 FMRHRC 474-475). I further concluded I
could not determine from the then existing record whether
Southern Minerals used the advancing of funds to Fire Creek to
control how mining was done at the mine or to control the mine
itself (17 FMSHRC 475-476) . I also concluded that the record
regarding conversations between Bowling and Harold concerning
mining operations and production raised ~unresolved questions of
content and context" (17 FMSHRC 477} . Finally, I found that I
could not determine from the record whether Bowling's involvement
in Fire Creek's personnel matters was indicative of operator
status (l..d.•J .
21.96

In analyzing True Energy's status, I looked first at the
administrative services it provided to Fire Creek. I .noted that
it was not unusual for small to medium size operators to contract
for administrative services, and I stated that I could not
conclude from the existing record that Tirue -Energy was using the
administrative services it provided to control how mining was
carried out or how the mine was operated (17 FMSHRC 478).
I also reviewed True Energy's involvement in engineering at
Fire Creek. I stated that the surveying of sight lines and the
setting of spads was not sufficient in and of itself to make True
Energy an operator, that there must be evidence that True Energy
controlled or intended to control mining operations (17 FMSHRC
479). I made essentially the same finding with regard to the
certification and preparation of mine maps (Tr. 479-480) .

Finally, I stated:
[A] hearing on the issue of liability will be
necessary . The burden of proof will be on the
Secretary. He must establish by substantial evidence
of record that Southern Minerals and/or True Energy
exercised actual control over the mining operations at
~he mine, or over the mine itself, or had the power to
exercise such control (17 FMSHRC 480).
STIPULATIONS
At the hearing, the parties stipulated as follows:
1. The Fire Creek No. 1 Mine is located in
McDowell County, West, Virginia.
2.
the

Operations of the . . . mine are subject to
. Act.

3. Pocahontas owns the mineral rights to the
. mine.
4. Fire Creek . . . is a West Virginia
corporation [,)incorporated on March 14, 1988.
5. The . . . Fire Creek No. l Mine was the only
mine ever operated by Fire Creek.

2197

6. Fire Creek shares Post Office [B]ox 5066 in
Princeton, West Virginia with Southern Minerals, Inc.
7. Beginning with the dates listed, the
shareholders, officers, and directors of Fire Creek
. . . were as follows:

Shareholders

Officers/Directors
June 27. 1988

David Harold (50%)
D.L. "Jack" Bowling {25%)

David Harold {Pres./Dir.)
Rhonda Harold {wife)
(Sec. /Treas.)

Mrs. D.L. {Brenda) Bowling
(Wife) (25%)
July 1. 1989
David Harold (40%)
Ronald Lilly (10%)
Mrs. D.L. (Brenda) Bowling
(Wife) (25%)

David Harold (Pres./Dir.)
Ronald Lilly (Sec./Treas.)

October 201 1990
Treasury stock {40%)

W. Fred St. John
(Pres. /Dir.)
Ronald Lilly

Ronald Lilly (10%)
(Sec./Treas./Dir.)
D.L. ~Jack Bowling (25%)

D.L. "Jack" Bowling
(Dir.)

Mrs. D.L. (Brenda) Bowling
{wife) (25%)
8 . Prior to January 1, 1990, True Line, Inc. (True
Line) and its contractors generally provided all
engineering/surveying services and map certifications for
Fire Creek.
After January 1, 1990, John E. Caffrey, P.E.,
certified maps for the . . . mine which required engineering
certification.
9.

2198

10 . On January 31, 1991, True Line billed "True Energy
Coal Sales, Inc . - Southern Minerals" for the preparation of
twelve one-hundred foot maps of the . . . mine, closure maps
of the . . . mine, and a meeting with John E. Caffrey, P.E.,
regarding the . . . mine.
11 . Beginning with the dates listed, the shareholders,
officers and directors of Southern Minerals were as follows:
Shareholders

Officers/Directors

October 1. 1989 to January 1991
D.L. •Jack" Bowling (60\)
W. Fred St. John (20%)
Jacqueline Bowling Karnes (10%)

D. L. •Jackw Bowling
(Pres. /Dir.)
W. Fred St. John
(V . Pres • /Dir. )
Brenda Bowling
(10%)
(Sec. /Treas.)

Jason Bowling (10\)
12. Beginning with dates listed, the shareholders,
officers and directors of True Energy were as follows:
Officers/Directors

Shareholders

October 1. 1989 to January 1991
D. L . •Jack"Bowling (60%)
W. Fred St . John (20%)
Jacqueline Bowling Karnes
(10%)

D.L . "Jack" Bowling
(Pres. /Dir.)
W. Fred St. John
(V . Pres . I Dir. )
Brenda Bowling
(Sec. /Treas.)

Jason Bowling (lOt}
(Joint Exh. 1}
FIRE CREEK AND THE- MINE

Harold testified that he and Lilly opened the subject mine
and operated it under the name of H&H Coal Co. (H&H) . Soon, they
determined the mine could not be run successfully with the
2199

equipment they were using. Therefore, they went to Bowling and
Bowling prosed that a new corporation be chartered to operate the
mine and that new continuous mining equipment be purchased
(Tr. I, 12-13). {Bowling testified that it was Harold, not
himself, who suggested the mine could be operated successfully if
up-to-date continuous mining equipment was used (Tr. II, 278} .)
Bowling had no previous experience mining with continuous
mining equipment. Harold, however, was thoroughly familiar with
it. Bowling was of the opinion that Harold ~was able . . . to go
a little bit further than anybody else as far as making . . .
[mining] efficient" (Tr. II, 306). In fact, Bowling described
Harold as ''one of the best miners in the State of West Virginia"
(Tr . II, 279, see also Tr. II, 303-304) . In Bowling's view, once
the company was formed, Harold ran Fire Creek •in total• {.Id..).
Bowling never went underground (Tr. II, 345).
Fire Creek purchased the new equipment with a bank loan that
was secured by the equipment as well as by Bowling's and his
wife's personal guarantee (Tr. I, 15;. Tr. II, 278-279, 311, 316).
The original loan was for $600, 00.0. The amount was added to over
time as other equipment was acquired (Tr. I, 16). Eventually,
the loan was paid in full by Fire Creek (Tr. II, 317) . In
addition, Fire Creek assumed some of H&H's prior obligations and
equipment (Tr. I, 20-21).
Fire Creek contracted with Southern Minerals to mine coal
that Southern Minerals leased (Tr. I, 22; Gov . Exh. 2). Fire
Creek had no property interest in the coal (Tr. II, 105).
Southern Minerals had sole authority to dispose of the coal (Tr.
II, 105).

From its inception in 1988 through January 1991, Fire Creek
received over $6,000,000 in re~enue and made a profit of over
$500,000 (Tr. II, 192) .
However, in the months before the accident the company
consistently lost money. Subsequent to the accident, Fire Creek
closed the mine . St . John testified he made the decision to
close the mine in his capacity as president of Fire Creek and
that before he made the decision, he discussed it with Lilly and

2200

Bowling, in their capacities as directors of the company (Tr. II,
239-240). Fire Creek has not mined coal since the accident (Tr.
II, 221). St. John contended that the company has not gone back
into mining because it is concentrating first on resolving the
legal issues resulting from the accident (Tr. II, 239).
According to St. John, Fire Creek has no ~unds to pay the
penalties proposed for the violations that are alleged in these
cases. Nor does it have assets it can liquefy to obtain the
funds (Tr. II, 171). Bowling agreed that Fire Creek is "broke."
He added that the company's equipment had been sold "to pay fines
and so forth" (Tr. II, 335).
Prior to the accident, the only entity ever cited by MSHA
for violations at the mine was Fire Creek (Tr. I, 186-187). MSHA
did not take the position that Southern Minerals and True Energy
were operators uritil seven months after .the accident.
THE SECRETARY'S POSITION REGARDING CONTESTANTS' STATUS
AS OPERATORS

The basis for the Secretary's theory regarding Southern
Minerals' and True Energy's status as operators, is that through
their associations with Fire Creek they were, in reality, part of
a single entity that controlled the mine. Counsel for the
Secretary stated:
[O]ur position is that Fire Creek is part of
an entity with several other corporations that
operate the . . . [m]ine, composing, for lack of a
better word, an association and that, therefore,
the officers, employees and . . . directors 0£· any
of those corporations are agents of all of them.
{Tr . I , 16 4 ) .
Put another way, in the Secretary's .view, the three
companies were a single association, and thus, a person whose
purpose it was to mine coal. This was expressed by counsel for
the Secretary, when he stated that Fire Creek, Southern Minerals
and True Energy:
together comprise a person operati~g a coal
mine under the Act, a person being defined . . .
under the Act as an association. And an
2201

association has been defined .in the law as . . . a
group of people joining together to do something.
[The Secretary] believe[s] that these three
companies have operated in such a way that they
have joined together. And their joinder is for
the purpose of operating a coal mine. Therefore,
they are an association. An association is within
the definition of a person. And a person . . . is
an operator under the Act (Tr. I, 192).
James Bowman, who investigated the accident at the Fire
Creek Mine for MSHA, testified that the accident investigation
team suggested the Secretary cite True Energy and Southern Miners
along with Fire Creek because:
Southern Minerals and True Energy . . . and
Fire Creek were corporations under common
ownership. They were under the common control of
one principal for the common good of all three.
One could not exist without the other (Tr. I,
214).
He also stated that by citing all three entities, the
Secretary ~increase[d] the likelihood that the penalties would be
collected" (Tr. I, 215). He maintained, "the key thing is
responsibility ." For a long time, MSHA has been trying to place
responsibility on the principals who actually have control over
. . . mining activities" (Tr. I, 217-218 ) . Counsel for the
Secretary agreed that the Secretary was trying to avoid a
situation wherein the owner or lessee of a mine had the authority
to control health and safety at a mine, yet escaped liability
because of failing to exercise that authority (Tr. II, 364) .
THE LAW

The issue of whether the Contestants are "operators" must be
resolved within the context of the statutory definition of that
word (30 U. S.C. § 802(d). To put the matter in its simplest
terms, either Southern Minerals and True Energy meet the
definition or they do not . If one or both do, one or both were
properly cited. If one or both do not, these proceedings must be
dismissed with respect to the party or parties outside the scope
of the Act. While the Secretary has emphasized his wide
2202

enforcement discretion , and while it is true such discretion
exists (Brocky. Cathedral Bluffs Shale Oil Co., 796 F.2d 533,
538 (D.C. Cir. 1986), it comes into play only in regard to
statutory operators. Obviously, the Secretary holds no writ to
proceed against those who are not so defined.
As I have noted previously, analysis of the Contestants'
status begins with the words of the statutory definition and the
assumption that the Act's drafters carefully chose the words to
mean what they say (Order, 17 FMSHRC at 471; see also Berwind
Natural Resources. Co:r:p., 17 FMSHRC 684, 703 (April 1995} (order
in pa~t granting and denying motion for summary decision)}. The
Act defines an "'operator" as "[a)ny owner, lessee, or other
person who operates, controls or supervises a coal or other mine
or any independent contractor performing services or construction
work at such mine" (30 U.S.C. § 802(d)) . The clause, "'who
operates, controls, or supervises a coal or other min~,"
describes and qualifies each noun in the preceding phrase "any
owner, lessee, or other person." Thus, the definition requires
"'owners, lessees or other person[s]" to participate in and/or
have authority over the operation, control or supervision of a
mine (™Elliot Coal Mining Company. Inc. , ·~ y. Director. Office
gf warkers Compensation, 17 F . 3d 616, 629-630 (3d Cir. 1994)) .
The purpose of the statutory definition is to place
responsibility for health and safety upon those entities who
create the conditions at the mine or who have actual authority
over those conditions on the theory that such responsibility will
further compliance. Control may be either direct or indirect,
but it must be actual. In other words, an operator must "call
the shots" at a mine regarding its day-to-day operation or have
the authority to do so (~ Berwind, 17 FMSHR.C at 704 (citing
Hational Ind.ustrial Sand Ass'n y. Marshall, 601 F . 23d 698, 701
(3d Cir. 1979) (~Designation . . . as operators
. . . regyires substantial participation in the running of the
~,, (emphasis in original))) .

For these reasons I concluded previously - - and state again
here -- that in order to establish an entity as an "operator"
subject to the Act, the Secretary must prove that the entity,
either directly or indirectly, substantially participated in the
operation, control or supervision of the day-to-day operations of
the mine, or had the authority to do so {Berwind, 17 FMSRHC at
705).

220 3

Further, and as I have noted, because the forms of
participation and authority vary from entity to entity, the
question of whether an entity meets the statutory definition of
"operator" must be resolved on a case-by-case basis (17 FMSHRC
473) .
ii::.£ provides guidance. There, the Commission looked to
specific indicia of operator status ·-- characteristics such as an
entity's involvement in a mine's engineering, financial,
production, personnel and safety affairs. Because in Ji:.£ the
Commission concluded a lessee's substantial and •considerablew
involvement in the operation of the mine warranted the Secretary
proceeding against it (16 FMSRHC at 1411, n.5), I read the
decision as echoing the court's requirement that a cited entity
must exhibit "substantial participation in the running of the
mine" (National Industrial Sand, 601 F.2a· at 701). Thus, in my
opinion, the Commission's decision implicitly recognizes that an
entity's involvement in the day-to-day operation of a mine can be
so infrequent· or minimal, i.e., so insubstantial, inconsiderable
or removed from actual mining, that operator status does not vest
(17 FMSHRC 473; aerwind, 17 FMSHRC 705}.

This approach to determining jurisdictional status is in
harmony with the way· the coal industry frequently operates. In
the East especially, where contract mining is common, leased coal
reserves of ten are mined not by lessees but by entities with whom
lessees contract and the relationships between lessees and
contractors often differ. By looking to the various aspects of
the relationships to determine whether there is substantial
control over the day-to-day operation of the subject mines, or
whether there is the authority to exercise such control, the
differences are accounted for and compliance is fostered .
Clearly those who control day-to-day mining and/or who have
the authority to do so are those who can and do control the
conditions and practices that ensure compliance with the Act and
the mandatory safety and health regulations promulgated pursuant
to it. It is they who are and who should be held responsible
when the conditions and practices fall short.
I do not subscribe to the Secretary's assertion that because
an entity that mines the coal is •owned, operated, controlled,

2204

and supervised to one degree or another" by other entities, each
of those entities can be held jointly and severally liable for
violations at the mine (Sec. Br. 32). The issue is not whether
the entity doing the mining is owned, operated, controlled, and
supervised '~to one degree or another" by others, but the degree
to which it is controlled and supervised. As I have stated, in
my view the Commission has recognized that an entity's
involvement in the day-to-day operation of a mine may be so
infrequent, minimal or removed, i.e., so insubstantial,
inconsiderable or remote from actual mining, that operator status
does not vest.
Moreover, in the past MSHA appears to have adopted this
position. John Tisdale, the manager of MSHA's accident
investigation program, and a person with a long and dis~inguished
career in the mining industry, testified that when he worked for
two large corporate coal operators in the 1980s, the corporations
frequently contracted with smaller companies to mine the
corporations' coal reserves. The larger corporations provided
various engineering, technical and administrative services to the
smaller contract operators, services that MSHA today would
apparently argue afforded the corporations the "degree" of
control it asserts is indicative of operator status, yet Tisdale
knew of no instance in which the corporations were cited for the
violations of the on-site operators (Tr. I, 272-277; Tr. II, 4649) •

Nor do I subscribe to the Secretary's arguments that the
Contestan~s are operators because together with Fire Creek they
functioned as a unitary entity performing all of the aspects of
mining; from the development of the mine to extraction and
stockpiling of the coal. Parts of the industry have functioned
in a multifaceted nature for years, and, as Tisdale's tes~imony
makes clear, in the past, the Secretary has chosen to cite , the
production operators rather than to cite .those who provided them
services (.WU:. Tr. I, 272-277; Tr. II, •6-49).
While this past practice does not stop the Secretary from
changing his view and proceeding against the Contes~ants -provided they are operators within the meaning of the Act (17
FMSRHC 480-481) -- it certainly raises questions abou~ both the
wisdom and the validity of a ~unitary entity" approach to
enforcement. Moreover, as I note below, the Secretary's unitary
theory may fly in the face of the right ' of separate corporate
2205

entities performing separate tasks to be regarded in law as
separate persons and if adopted may extend jurisdiction without a
logical limit (.ae.e. infra 25-26) .
Therefore, I reiterate that the issue before me is whether
the Secretary has established that each of the Contestants either
directly or indirectly, substantially participated in the
operation, control or supervision of the day-to-day operations of
Fire Creek No. l Mine, or had the authority to do so.
THE CQNTESTAN'fS AS OPERATORS
THE STATUS OF FIRE CREEK

The parties agree that the actual day-to-day operation of
the mine was substantially controlled and supervised by Fire
Creek and that at all times relevant to these proceedings, Fire
Creek was an operator within the meaning of the Act.
THE STATUS OF SOUTHERN MINERALS

INDICES OF OPE&ATOR STATUS
INVOLVEMENT IN EMPLOYMENT

Harold, who had run the mine for Fire Creek, testified that
he worked daily at the mine, both underground and on the surface
(Tr. I, 27-28). According to Harold, he did the actual hiring
and firing and no other person had that authority, including
Bowling (Tr . 28, 31). However, he agreed that there were times
when he discussed with Bowling the hiring of employees:
We were always looking for good people. [A]ny time
that I could find out about good people from . . .
Bowli~g or anybody else . . . we would talk about it
. . ..·And if he knew somebody, then I would talk to
them (Tr. I, 28).
In addition, Harold spoke with others in the mining
community -- people unrelated to Fire Creek -- when seeking
employee recommendations.
Harold stated that he did not always hire miners of whom
Bowling approved, and Bowling never told him he could not employ

a person he wanted to hire (Tr. I, 126). Also, Bowling never
told Harold to fire a person (Tr. I, 126). However, if there was
an employee that "wasn't doing [his or her] job and . . . was
costing production, " Harold would discuss the situation with
Bowling because Bowling was "part owner of the [mine]" (Tr. I,
144} and Bowling always had "some" input in the discussion
(Tr. I, 30).
Bowling agreed that it was Harold who did the hiring.
Bowling stated that from time to time Harold would call and ask
him if he knew of good people whom Harold could hire. Bowling
also stated that he and Harold would discuss things Harold had
done at the mine that could lead to labor-management difficulties
(Tr. II, 280). Bowling described their discussions as "the same
that I would have with a neighboring operator" (Tr. II, 285).
After Harold left the mine, Bowling stated that he and
St. John hired Ward Bailey to replace Harold (Tr. II, 280).
St. John stated that the decision to hire Bailey and CUrtis
Stillwell, who acted as the mine superintendent after January
1991, was made by himself, Ron Lilly and Bowling (Tr. II, 226227.) George Bowman, a special investigator for MSHA, testified
that during an investigation by the United States attorney
following the explosion, Bailey was interviewed and stated that
Bowling alone hired him (Tr. I, 171-172). (Bailey was not called
as a witness, and thus, his version of the conversation and his
credibility could not be gauged.) James Bowman, another MSHA
special investigator, testified that when he went to the mine
following the explosion, CUrtis Stillwell stated that he had been
hired by Bowling (Tr. I, 206). (Stillwell too was not called as
a witness.)
Finally, Harold maintained that while he did not advise
Bowling on day-to-day personnel problems, he discussed •serious
matters" with him -- matters such as the need to hire more
miners. He did so because •Bowling owned a portion of the
[mine]- (Tr. I, 34-35).
Given this testimony and the record evidence, I find that
Harold was responsible for the hiring and firing of the rank and
file miners. Harold stated as much, and I fully credit Harold's
testimony to this effect (Tr. I, 28). I also credit his
testimony that he did not always hire miners of whom Bowling
approved, and that Bowling never stated that he could not hire
2207

such miners (Tr. 126). There is no credible evidence to
contradict Harold's assertions in this regard.
However, there is credible evidence establishing that
although Bowling did not make the day-to-day hiring and firing
decisions regarding rank and file miners, he had, as Harold put
it, input into "serious" personnel policy matters, such as the
need to hire more miners (Tr. I, 34) ~ n I conclude that Bowling
not only discussed such matters with Harold, but that he had a
say in the ultimate decision. Bowling, as president of Southern
Minerals, the company whose coal was being mined, had an obvious
interest in maximizing production. It is inconceivable to me
that Harold would have discussed the need for more miners with
Bowling if he did not need Bowling's approval to hire them. In
other words, while Bowling had no demonstrable veto over who was
hired, he fundamentally contributed to the decisions to hire. To
have this kind of input into the determination of the number of
miners who worked at the mine was to exercise control over the
day-to-day operation of the mine.
Harold stated he discussed employment .matters with Bowling
because Bowling "owned a portion of the [mine] (Tr. I, 34-35) ,"
but there is no distinction apparent when Bowling acted on behalf
of Fire Creek and when he acted on behalf of Southern Minerals.
He wore ·both hats. This overlapping of responsibilities
regarding rank and file miners leads me to conclude that when
Bowling became involved in such personnel matters, he did so on
behalf of both Fire Creek and Southern Minerals.
In addition, the testimony establishes that Bowling was
actively and substantially involved in hiring superintendents
Bailey and Stillwell. Harold testified that he and Bowling hired
Bailey to replace Harold (Tr. II, 285), and St. John stated that
Bowling was instrumental -in the ·hiring of Stillwell (Tr. II,
248) . In addition to being involved in the hiring of these
crucial members of the mine's day-to-day management, it is clear
that Bowling controlled their tenure at the mine. Bowling
himself testified that he could terminate the superintendent's
employment if the superintendent did not operate the mine like
Bowling wanted (Tr. II, 357).
Just as Bowling exercised his authority without
distinguishing whether he acted for Fire Creek or Southern
Minerals regarding the number of rank and file miners hired, so
2208

too did he fail to distinguish for whom he was or would act when
he hired or fired the mine's superintendents. This lack of a
clear distinction between the times Bowling was wearing his Fire
Creek hat and his Southern Minerals hat when he acted on mine
personnel matters leads me to conclude that Bowling had the
authority to act and did act on behalf of both.
I find, therefore, that the decisions regarding whether to
hire more miners and the decisions regarding the hiring or firing
of the mine's superintendents, substantially involved Bowling,
and through Bowling, Southern Minerals, in the day-to-day
operation of the mine .
INVOLVEMENT IN PRODUCTION AND ENGINEERING

I conclude as well that Southern Minerals, through Bowling,
was substantially involved and had the authority to be
substantially involved in day-to-day production and engineering
at the mine.
I c~edit Harold's testimony that Bowling called every day
for the mine's production figures and that when production was
low, he and .Bowling discuss the reasons why (Tr. I, 36-37). It
is clear from Harold's testimony that Bowling took a very active
interest in production and that this was not a "hands off"
situation.
It is equally clear to me that Harold and Bowling acted as a
''team'' when the mining process encountered difficulties that
hindered production. Harold was specific about discussing such
difficulties with Bowling and about getting advice from Bowling
concerning how to overcome the difficulties (Tr. I, 38; 49; 134136), and I discount Harold's .testimony that Bowling never
ordered th~t mining proceed in a c~rtain manner or directiQn (Tr.
I, 49). George Bowman testified that Harold told him during . the
criminal investigation that Bowling had specifically instructed
him to mine certain bleeder blocks (Tr. I, 173). Harold did not
deny this. Rather, he could "not recall" the dis·c ussion (Tr. I,
49).

I find that from the beginning Bowling was involved
substantially with production at the mine and that Bowling's
corporate interest and self interest in maintaining ongoing
production kept him substantially involved, both in the manner in
2209

which coal was produced and in the ongoing mining process.
Harold credibly stated that Bowling participated in the
initial decision to mine with a continuous mining machine (Tr.
137-138). Harold also testified that Bowling's involvement in
production continued once mining commenced. Harold stated that
if he had a production problem, he discussed it with Bowling.
For example, when the mine was shut down as a result of a state
or federal inspection, he discussed it with Bowling, and he
stated that he did so probably more · than once (Tr. I, 42-43).
When he was asked if Bowling ever pressured him in any way with
regard to the level of production, he responded:
He called me every day to find out what production
was and how much coal I was going to get that day. And
he'd want to know if I was going to get a certain
amount of coal or if I was not. And I don't know if
you could take that
I'd say it's pressure.

*

*

*

*

consider it a pressure, yes, ma'am
(Tr. I, 44) .
I

As important, and as Bowling himself testified, Bowling had
actual authority substantially to control some of the most
significant things that affected production, engineering and
safety at the mine. Bowling stated that if he called the
superintendent and inquired about mine ventilation, preshif t
examinations and the in-mine smoking program, he would expect
answers, and expect that problems would be corrected.
Q. [Y]ou indicated you could have called [the
superintendent] and inqui~ed about those areas,
ventilation fan, preshift, smoking program . . . and
you would have required [the superintendent] to tell
you about those conditions; is that correct?

A.
answer.
Q.

*

*

*

*

Yes, sir.

If I asked him, I would expect an

And if he had told you that things weren't
2210

going too good [sic] or if you had information f.rom
another reliable source that led you to believe things
were not as good as they could be in those areas, you
could have required [the superintendent] to fix those
problems?
A. Yes, sir. I'd have him investigate and see
what the problem was immediately (Tr. II, 356-357}.
Bowling testified that if there was a condition on a
ventilation map that he did not like, he had the authority to
have the condition changed (Tr. II, 358-359).
I recognize th~t both Harold and Bowling testified that
Bowling's authority in these cases derived from his position as a
stockholder of Fire Creek (~ Tr. I, 101-102; Tr. II, 359). I
am sensitive to the fact that law and public policy favor the
limitation of business risks through incorporation and that
corporations are treated at law as individual entities even if
they share the same or many of the same directors, officers and
stockholders. However, I also recognize that their status as
separate legal entities may be considered a fiction and be
disregarded when those acting for the corporations do so in .such
a fashion that their corporate individuality no longer exists.
When that happens, treating an entity as separate may permit it
to evade its legal obligations. In order words, it can be unjust
to recognize an entity as separate when those who act for it do
not (~ Las Palmas Association v. Las Palmas Center Associates
(1991, 2nd Dist.) 235 Cal. App. 1220).
Here, with respect to the aspects of production, engineering
and safety, that I have discussed, it is impossible to
distinguish the actions of Bowling on behalf of Southern Minerals
from those of Bowling on bebalf of Fire Creek. The corporate
identities have merged to the exteht that I find when Bowling
acted concerning these aspects of mining, he acted both for Fire
Creek and Southern Minerals and therefore , that Southern Minerals
substantially participated in the day-to-day operations of the
mine in these areas.
Evidence was also offered by the Secretary concerning the
relationship of Southern Minerals and Fire Creek with regard to
mining projections, mapping and permits. However, the Secretary
has not established that Southern Minerals' involvement in these
2211

aspects of mining was indicative of its substantial participation
in the day-to-day operation of the mine. Rather, the record
shows that Southern Minerals was involved to ensure its own
individual interests in making certain only its leased coal was
mined and was mined without waste.
INVOLVEMENT IN FINANCE
There are several aspects of Fire Creek's finances . in which
Southern Minerals played a part that substantially impacted the
day-to-day operation of the mine.
Harold testified that he regularly discussed with Bowling
the cost of the supplies used at the mine, as well as any ~out of
the ordinary" expenses that arose (Tr. I, 142, see also Tr. I,
48). Bowling did not deny the discussions and I conclude they
occurred.
In addition, it is clear that Southern Minerals frequently
advanced money to Fire Creek. The advances were made against
production {Tr. I, 77; 114). The money was used to purchase
needed supplies and equipment and to pay off past due debts (Tr.
I, 113-115; Tr. II, 104-105). According · to Harold, the
determination whether Fire Creek had enough income to cover its
expenses was made by Harold, Bowling and, at times, St. John (Tr.
I, 116). St. John agreed that when he was president of Fire
Creek he knew when the company would experience a fiscal short
fall and he would arrange with Southern Minerals for an advance
(Tr. II, 165}. In deciding whether and when to arrange for an
advance, St. John essentially testified that he consulted himself
(Tr. II, 165). Further, Harold testified that he was not always
aware when money was advanced (Tr. I, 119).
Once again, the evidence reveals the lack of any clear
separation of functions between 'Fire Creek and Southern Minerals
in these areas among the parties. It is impossible to
distinguish where Bowling's and St. John's financial authority as
representatives of Fire Creek ended and their authority as
representatives of Southern Minerals began, and vice versa. St.
John's testimony that as president of Fire Creek he consulted
himself as vice president and dir~ctor of Southern Minerals when
arranging for advances to Fire Creek from Southern Minerals, is
typical of the overlap:

2212

Who is responsible for making the
determination to advance funds to Fire Creek . . . ?
Q.

A.

I made those determinations.

Q. And in what capacity did you make that
determination?

A. As president of Fire Creek, I would have
acknowledged the shortage of money and would have made
arrangements with Southern Minerals to make those
advances.

*

*

*

*

[W)ith whom in Southern Minerals did you speak
regarding that?
Q.

A.

Me (Tr. II, 165).

Thus, I conclude that Bowling and St . John acted as though
the entities were one when they arranged for the advances. Their
testimony that advances against production were a normal way of
doing business between a lessee and its contract operator was
entirely credible (Tr. I, 136-137; Tr. II, 284), and I do not
believe that the extension of money in and of itself indicates
the entity advancing the funds necessarily is acting as a
statutory operator. However, without a careful separation of
form and function -- a separation that is not in evidence here
the entity advancing the money can only be seen as playing a
significant part in the day-to-day operation of the on-site
mining enterprise.
In addition, Bowling kepb an eye on the cost of supplies and
equipment to the equal benefit of both entitias. Obviously, dayto-day operations at the mine could not have proceeded without
the supplies and equipment. Bowling helped to make certain they
were present. Bowling again acted as though Fire Creek and
Southern Minerals were one.
THE STATUS

OF TRUE ENERGY

St. John described True Energy and Southern Minerals as
"sister corporations" in that as of October 1, 1989, they shared
identical ownership (Tr. II, 100-101; a.e..e. Joint Exh. (stips. 112213

12)). True Energy's business was to buy coal from Southern
Minerals and have it processed and resold. The coal was mined by
Southern Mineral's contract operators, including Fire Creek {Tr.
II, 101). The coal was processed at a preparation plant owned
and operated by an unrelated corporation (Tr. II, 102). True
Energy also provided administrative services Southern Minerals
(Tr. II, 100-101).
The fact that True Energy and Southern Minerals shared
identical owners and officers, that they were, to use St. John's
phrase, ~sister corporations," as St. John testified, does not in
and of itself mean that Southern Minerals' status as an operator
is attributable to True Energy. As noted, at law, separate
corporate entities are just that -- separate
-- and are entitled to be considered on their own merits,
regardless of their ownership and leadership, provided they
function separately in fact and those acting for them do so in a
manner consistent with their distinct nature.
There are two general areas in which True Energy was
involved with Fire Creek -- providing administrative services and
providing engineering services.
INDICES OF OPEEATOR STATUS

INYOLVEMENT IN APMINISTBATIVE SERVICES
Harold testified that True Energy took care of all of Fire
Creek's business and that Fire Creek paid a fee to True Energy
for this service (Tr. I, 71). However, when he was asked to
specify what True Energy did, all he could think of was that True
Energy paid Fire Creek's bills (Tr . I; 71-72).
St. John was more thorough in his description of the
services that True Energy provided to Fire Creek. He explained
that while True Energy did indeed pay Fire Creek's vendors, it
also monitored Fire Creek's cash flow, deposited its cash
receipts and wrote checks, which Harold signed, to pay the
vendors (Tr. II, 122-123).
He further stated that True Energy paid for Fire Creek's
liability insurance policies and that True Energy was fully
reimbursed by Fire Creek (Tr. II, 150-151; 184). In St. John's
view, True Energy did not dictate insurance choices to Fire
2214

Creek, and Fire Creek did not always accept True Energy's
insurance recommendations. For example, St. John testified that
Fire Creek provided its employees with more extensive medical
insurance than he recommended (Tr. II, 199).
Until July 1990, Fire Creek paid True Energy for the
administrative services it received. After that, because of
financial difficulties, Fire Creek did not pay True Energy and
True Energy was "out" approximately $6,000 per month (Tr. II,
184, 232-233) .
St . John further stated that payroll matters were handled
for Fire Creek by Arnold Lively and Associates (Lively) .
St. John maintained that Fire Creek hired Lively and Lively dealt
directly with Harold {Tr. II, 111, 115). Fire Creek kept track
of the workers' hours, but Fire Creek's pay checks were prepared
by Lively and Harold verified and signed them (Tr. II, 115) .
Lively also prepared Fire Creek's federal and state tax
forms, its FICA and Social Security forms, its depreciation
schedules and its financial statements (Tr. II , 112-113; 124).
I conclude that True Energy's involvement in administrative
services was not such as to indicate it had supervision and
control over day-to-day operations at the mine. While it is true
Fire Creek could not long have operated had its receipts not been
deposited, its bills not been paid and even, perhaps, had it not
contracted for liability insurance, these business aspects of its
operation are far removed from the day-to-day mining functions
that lie at the heart of federal regulation. To find that they
are indices of operator status would be to adopt a "but for"
approach to the scope of the Act, one that would base enforcement
upon that fact that no matter how removed a service is from dayto-day operation, if, ultimately, the mine can not operate
without the service, the provider of the service is an operator.
Such an approach does not have a rational limit and its logical
extension could result in holding power companies, and or
accounting firms, to be "operators" within the meaning of section
3 (d).

Moreover, unlike Bowling and St. John's actions for Southern
Minerals regarding Fire Creek's employment, production, and
finances, those who acted for True Energy in providing
administration services did so on a separate and clearly defined
2215

basis . There was no confusion about when they were acting for
True Energy and when they were acting for Fire Creek. Fire Creek
and True Energy agreed on the services and on the price for the
services .
INVQL\TEMENI IN ENGINEERING SERVICES
Initially, True Line was responsible for mining pr~jections,
spad wo rk, and mapping for Fire Creek (Tr . I , 78-79). The
projections were developed by Harold and Bowling with the
assistance of James Boardwine, who worked for True Line.
Although Boardwine testified that he never discussed the
projections with Bowling, True Line's invoices indicate that True
Line representatives met with Harold and Bowling concerning the
projections, and I believe this in fact occurred (Tr. II, 275276i Gov. Exh. 4 at 2,4). Be that as it may, Boardwine worked
for True Line, not for True Energy. Moreover, the purpose of the
projections was to ensure that development of the mine did not
"stray" outside the lease and that Southern Minerals' leased coal
was mined without waste.
Fire Creek called True Line when it wanted spads set. When
production was good, _True Line set spads · approximately twice a
week . Around January 1990, True Line stopped doing spad work and
True Energy hired replacements for Fire Creek {Tr. I, 81) . The
persons hired worked for other of Southern Minerals' contractors
in addition to Fire Creek . St. John made clear in his testimony
that Allen Riggins, the person who did most of the spad work, in
effect was regarded as an employee of True Energy {~ Tr. I I ,
225, see also Tr. II, 345, Tr. I, 81) . I accept St. John's
testimony, and I find that True Energy effectively replaced True
Line as the entity responsible to Fire Creek for spad work at the
mine.
The spad work was connected to mapping of the mine, which
was done by Boardwine, at Harold's direction . Harold stated, "I
would show . . . [Boardwine] what I wanted on the maps; and he
would make those maps; you know, the changes we'd make in
direction or ventilation or anything (Tr. I, 81) ." Although True
Line stopped doing the spad work, it continued to prepare the
maps based upon information that Riggins and other True Energy
employees provided, except that True Energy's employees at times,
and at Harold's request, drew small section maps that the .mine
foremen carried and used (Tr. I, 85-86, 87-89; Tr . II, 133-134).
2216

I conclude that True Energy's involvement in engineering
services was not such as to indicate it had supervision and
control over day-to-day mining operations. As stated, I do not
find that True Energy was involved substantially with mining
projections and there is no indication that True Energy, through
its connection with spad setting, surveying, and its limited
connection with map preparation, controlled or had the authority
to control day-to-day mining .
As I have repeatedly observed, in my view it is not enough
that a company be in some way involved with various aspects of
mining . All operators are not endowed with the resources
necessary to finance and control all aspects of the mining
process. The economic realities of the coal fields are such that
in some instances either there is contract mining or th~re is no
mining. When this is the case, it is not unusual, indeed it is
common, for those doing the actual mining to rely on others for
things such as map preparation, spad setting, and the development
of projections, and that is exactly what Fire Creek did with
regard to True Energy.
The Secretary has ..not established that True Energy had
control over or authority to exercise control over day-to-day
mining of coal at the Fire Creek mine, and I fail to see how
holding True Energy liable as an operator under these
circumstances furthers the purposes of the Act.
CONCLUSION

I conclude that Southern Minerals substantially participated
in the operation, control and supervision of the day-to-day
operations of the Fire Creek No . 1 Mine, and therefore, was an
operator of the mine within t~e meaning of section 3(d) of the
Act.
I conclude that True Energy did not ·substantially
participate in the operation , control and supervision of the dayto-day operations of the Fire Creek No. 1 Mine, and therefore,
was not an operator of the mine within the meaning ~f section
3(d) of the Act.

221 7

ORDER AND NOTICE OF HEAR,ING

These proceedings are DISMISSED with respect to True Energy .
The parties are advised that the civil penalty and contest
aspects of these cases as they relate to Fire Creek and Southern
Minerals, are scheduled to be heard commencing on Tuesday, March
5, 1996, in Princeton, West Virginia. The specific hearing site
will be designated later . The matters of fact and law are as
stated in the pleadings, except that no further argument will be
entertained on the status of the Contestants as operators under
the Act .
The parties are reminded that any person planning to attend
the hearing who requires special accessibility features and/or
the use of auxiliary aids (such as sign language interpreters)
must request those in advance (S,e.e 29 C.F . R. §§ 2706 . lSO(a) (3)
and 2706 . 160(d)}) .
In preparation for the hearing, the parties are directed to
complete the following on or before February 16, 1996: (a} confer
on the possibility of settlement and stipulate as to all matters
that are not substantial dispute; (b) stipulate the issues and
fact and law remaining for the hearing, and, if unable to
stipulate· the issues, exchange written statements of the issues
as contended by the respective parties; (c} exchange lists of
exhibits, and, at the request of a party, produce exhibits for
inspection and copying; (d) stipulate as to those exhibits which
may be admitted into evidence without objection, and as to others
indicate whether the exhibit is accepted as an authentic
document; and (e} exchange witness lists with a synopsis of the
testimony expected of each witness.
Finally, the parties are directed to file on or before
February 20, 1996, prehearing reports stating (a} lists of
exhibits and witnesses together with the parties' synopses of
expected testimony; (b) stipulations entered into; ( c )
statements of the issues; and (d) a memorandum of law on any
legal issue raised with citations to the principal authorities
relied upon.

J>vv;cl f'µ~
David F . Barbour
Administrative Law Judge
2218

Distribution:
Pamela S. Silverman, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)
Robert I. Cusick, Esq., Marco M. Rajkovich, Jr . , Esq . ,
Wyatt, Tarrant & Combs, 1700 Lexington Financial Circle,
Lexington, KY 40507 (Certified Mail)
David Burton, Esq., P. O . Box 5129, 1460 Main Street,
Princeton, WV 24740 (Certified Mail)
\mca

2219

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR

WASHINGTON, O.C.

20006

December 15. 1995

OLIVER J. BOUTET,
Complainant

v.
AMES CONSTRUCTION COMPANY,
Respondent

DISCRIMINATION PROCEEDING
Docket No. WEST 95-373-DM
WE MD 95-07
Barrick Goldstrike Mine

ORDER OF DISMISSAL
Before:

Judge Merlin

On May 15, 1995, the complainant, Oliver J . Boutet, filed with
the Conunission a complaint of discrimination under section lOS(c)
of the Federal Mine Safety and Health Act of 1977.
On May 17,
1995, the Conunission sent Mr. Boutet a letter informing him that
additional information was needed to be filed in order for his case
to be processed.
Having received no response to the May 17 letter, an order
to show cause was issued to Mr. Boutet on June 27, 1995, directing him to submit the information. Mr. Boutet was told that if
he failed to respond to the June 27 order his complaint would be
dismissed.
The order was sent to Mr. Boutet certified mail
return receipt requested but was returned to the Commission
marked unclaimed.
On October 18, 1995, a second order to show cause was sent
to Mr. Boutet because a review of the file showed that both the
May 17 letter and June 27 order to show cause were mailed to
Mr. Boutet at the address listed on the letter that had been sent
by MSHA advising Mr. Boutet that no discrimination occurred.
This was an error because Mr. Boutet's letter of complaint to the
Commission lists a different address. Given the discrepancy in
the mailing address, a new show cause order was issued and the
Complainant was furnished with copies of the May 17 letter and
the June 27 show cause order. The October 18 order was sent
certified mail return receipt requested but was returned to the
Commission marked "Attempted not known, Insufficient address" . A
handwritten notation on the envelope indicates that a suite
number was necessary for this address. On December 13, 1995, my
law clerk attempted to contact Mr. Boutet by telephone. However,
no phone number was listed for him in the Reno, Nevada area.

2220

Under Commission rule 2700. 7 (c) , 29 C. F . R. § 2700. 7 (c) ,
service is complete upon mailing when sent by certified mail. See,
Matter of Park Nursing Center, Inc., 766 F.2d 261 (6th Cir. 1985);
Cf. Fed. R. Civ . P . 4(c) (2) (C) (ii), S(b).
In light of the foregoing, it is ORDERED that the discrimination complaint be DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Mr. Oliver Boutet, 1150 Terminal Way, Reno, NV 89502
Ames Construction Company, 2001 Griffin, Carlin, NV 89822

/gl

2221

FEDERAL MJ:NB SAFETY AND HEALTH REVJ:EW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

DEC l 8 1995

.

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

.

Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 94-108-M
A.C. No. 29-01380-05511
Sedillo Hill Mine

WESTERN MOBILE NEW MEXICO, INC.,:
Respondent

DECISION
Appearances:

Robins. Horning, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Katherine Shand Larkin, Esq., Jackson & Kelly,
Denver, Colorado, for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Western
Mobile New Mexico, Inc. ("Western Mobile"), pursuant to sections
105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §§ 815 and 820 ·("Mine Act"). The petition alleges one
violation of the Secretary's safety standards. For the reasons
set forth below, I find that the Secretary did not establish the
violation and I vacate the citation.
A hearing was held in this case on April 11 and 12, 1994, in
Albuquerque, New Mexico. The parties presented testimony and
documentary evidence and filed post-hearing briefs.

I.

FINDINGS OF FACT

Western Mobile operates the Sedillo Hill Mine, a surface
limestone mine in Bernalillo County, New Mexico. Limestone is
mined and crushed at the mine site. The pit consists of several
benches, the faces of which are between 15 and 35 feet high.
(Tr. 221). Limestone is loosened from a bench using explosives.
A series of holes are drilled down from the top of the bench,
explosives are loaded into the holes and the explosives are
. 2222

detonated from some distance away. The loosened material is
loaded and transported to the crushing plant. At the time the
citation was issued, driiling and blasting at the Sedillo Hill
Mine were performed by an independent contractor, sandy Jones
Construction Company ("Jones Construction"). Each bench was
blasted once every week or two.
(Tr. 166).
On September 15, 1993, an employee of Jones Construction,
Marvin Anglin, blasted a bench near the northwest corner of the
pit. Three individuals were in the same area of the pit as Mr.
Anglin at the time of the blast: Matt Carnahan, Western Mobile's
plant manager; and two employees of Jones Construction's insurance carrier. One of these insurance agents, Mike Wilson, was
seriously injured when fly rock from the blast struck him. He
suffered a bruised liver and back trauma . (Tr. 149-50). Apparently, his injuries were not of a permanent nature.
Mr. Sandy Jones, owner of Jones Construction, notified MSHA
of the accident and MSHA Inspector Omar Sauvageau was sent to the
mine to investigate. He was accompanied by Thomas J. Loyd, an
MSHA supervisory mining engineer. After conducting an investigation, Inspector Sauvageau issued citations to Western Mobile and
to Jones Construction. The section 104(a) citation issued to
Western Mobile alleges a violation of 30 C.F.R. § 56 . 6330 . The
citation states:

On 9/15/93 a blasting accident occurred
at the Sedillo Hill Mine, where one person
was injured and hospitalized by fly rock, and
two other persons were peppered by small material from the round which was blasted in
the pit. The men were located approximately
500 feet from the blast site when they initiated the blast . There was not a suitable
blasting shelter in the area where the blast
was initiated. The men were standing next to
pickup trucks which were intended to be used
as shelters, not behind them as intended.
(Ex. G-6). In the citation, the inspector determined that the
alleged violation was significant and substantial and was caused
by Western Mobile's moderate negligence. The inspector also
determined that the alleged violation was reasonably likely to
cause a fatal injury.
(Ex. R-1). The Secretary assessed a penalty of $3,000.00 against Western Mobile.
Tne cited safety standard provided:
Ample warning shall be given before blasts
are fired. All persons shall be cleared and
removed from the blasting area unless suit' able blasting shelters are provided to pro2223

tect persons endangered by concussion or flyrock . from blas~ing. 1
The term "blasting area" is defined as "the area near blasting
operations in which concussion or flying material can reasonably
be expected to cause injury." 30 C.F.R. § 56.2. The issue in
this case is whether the four individuals were in the "blasting
area" at the time the explosives were detonated.
Inspector Sauvageau testified that a mine operator must look
at a number of factors when establishing its blasting procedures.
He stated that these factors include the geological makeup of the
rock, type of round that is drilled, depth of the hales, amount
of explosives used, and the history of blasting at the pit. {Tr.
28, 52). Based on his analysis of these factors, he determined
that the individuals were within the blasting area.
He believed that the fact that a man was injured showed that
the people were too close to the blast site. {Tr. 27, 30, 53).
He concluded that the history of blasting at this particular mine
should have alerted Western Mobile to the hazard. He also considered the fact that the pit wall was highly fractured, and the
blasting contractor, Jones Construction, had difficulty loading
at least one of the · holes because of cracks in the rock. He
believed that the explosive material went into cracks in the rock
and that this condition created an increased risk of fly rock.
On this particular blast, 27 holes were drilled from the top
of the bench . Each hole was 19 feet deep and was 3~ inches in
diameter. Nine holes were in each of three rows and the first
row was about seven feet back from the edge of the bench. The
holes were filled with an ammonium nitrate-fuel oil blasting
agent ("anfo"). In one to four of the holes, the anfo entered
cracks in the rock. Mr. Anglin, the contractor's employee, followed his usual practice when cracks are encountered. He placed
empty ammonium nitrate bags into the hole to block the cracks,
placed cuttings2 into the hole, and then continued to fill the
hole with anfo.
The Secretary's witnesses testified that because anfo went
into the highly fractured rock, ·the rock did not blast as it
should. When blasted, rock will "pull out" in the direction of
least resistance~
(Tr . 35) In this case, rock came straight out
the side of the bench. Inspector Sauvageau testified that rock
This safety standard was effective through January 31,
It ha s been superseded by section 56.6306, which differs
substantially from the standard at issue in this proceeding.
1994 .

2

bit.

Cuttings are ground rock that is removed from the drill
(Tr. 23 3) .

went a total of about 600 to 800 feet into the pit. (Tr. 32).
Matt Carnahan testified that when anfo enters cracks in the rock,
the contractor follows an established procedure to minimize the
risk and that fly rock does not usually travel 500 feet in such
circumstances.
II.

A.

SUMKARY OF THE PARTIES' ARGUMENTS

Secretary

The Secretary argues that because Western Mobile did not
have a suitable blasting shelter, it was required to remove all
people from the blasting area. He refers to the definition of
"blast area" at 30 C.F . R. § 56.6000. 3 The Secretary relies
heavily on the first sentence of this definition and argues that
the evidence establishes that people were in an area in which
flying material caused injury to an individual. He further maintains that the limestone formation contained numerous vertical
and horizontal cracks that created weak zones and that a prudent
person would recognize that such weak zones may blow out and
create a fly rock problem. Anfo entered these cracks around a
number of holes, creating a greater potential for fly rock. He
contends that blasters frequently initiate shots at this mine
from a distance of 1000 feet or more and that this history demonstrates Western Mobile's knowledge of the hazard .
B.

Western Mobile

Western Mobile does not dispute that it did not have a
blasting shelter. It contends that it did not violate the safety
standard because it removed all persons from the area where fly
rock was reasonably expected to cause injury. It relies on the
definition of blasting area in 30 C.F.R. § 56.2 and the Comrnis3

"Blast area" is defined as:
The area in which concussion (shock wave),
flying material, or gases from an explosion
may cause injury to pers9ns. In determining
the blast area, the following factors shall
be considered:
(1) Geology or material to be blasted.
(2) Blast pattern.
(3) Burden, depth, diameter, and angle of
the holes.
(4) Blasting experience of the mine.
(5) Delay system, powder factor, and pounds
per delay.
(6) Type and amount of explosive material.
(7) Type and ~mount of stemming.
222,5

sion's decision in Hobet Mining & Construction Co., 9 FM.SHRC 200
(February 1987). It contends that the blaster, Mr. Anglin, considered the relevant factors, including the blasting history,
geology of the area, the amount and type of explosives and stemming used, and the depth and pattern of the holes. It argues
that Mr. Anglin reasonably concluded that the men were not within
the blasting area when he fired the shot. Western Mobile maintains that the Secretary failed to establish that the blaster did
not consider or employ these factors when initiating the blast .
Western Mobile believes that the citation was issued solely because there was an injury. It contends that it complied with the
requirements of the standard and that the cited fly rock incident
was a "fluke occurrence . " (W.M. Br. 4). •
XII.

DISCUSSION WITH FURTHER FINDINGS

Mm

CONCLUSIONS OF LAW

The issue . in this case is whether Western Mobile removed all
persons from the blasting area as required by section 56.6330.
The applicable definition provides that the blasting area is the
area near blasting operations in which "concussion or flying
material can reasonably be expected to cause injury." I reject
the Secretary's contention that the definition of "blast area" is
applicable to the safety standard. Because the new safety standdard at section 56.6306 uses the term '"blast area," the definiti~n of that term applies to that regulation and not to the old
standard at issue in this case. 5 The Secretary's expert witness,
Richard Fisher, could not explain why the definition for the new
standard should be applied in a case involving the old standard.
(Tr. 114-15) •
In Hobet, the Com.mission interpreted the definition of
"blasting area" in conjunction with an identical safety standard
for surface coal mines. The commission held that in order to
establish a violation, the Secretary must "establish the factors
that a reasonably prudent person familiar with mine blasting and
the protective purposes of the standard would have considered in
4

Western. Mobile also argued that it was not properly cited
for the alleged violation because Jones Construction was solely
responsible for drilling and blasting in the pit. Because I find
that the safety standard was not violated, I have not reached
this issue .
5

Nevertheless, the seven factors that are to be considered
in determining the "blast area" are similar to the factors that
all witnesses agreed should be considered by a reasonably prudent
blaster before he detonates explosives. It is the first sentence
of the definition of "blast area" that I have not considered in
resolving the issues in the present case.
2226

making a determination under all of the circumstances posed by
the blast in issue." Hobet, 9 FMSHRC at 202. The .Secretary
"must then prove that the factors were not properly considered or
employed." Id. The Commission went on to hold:
An operator's pre-shot determination of
what constitutes a blasting area is based not
only upon the results of prior shots, but
also depends upon a number of variables affecting the upcoming shot. The variables may
include, but are not limited to, the amount
and type of explosives used, the depth of the
holes that constitute the shot, the toporaphy, and the expertise and prior experience
of the blaster.

9 FMSHRC at 202-03 (citation and footnote omitted).
There is little dispute about the factors that a blaster
should consider when determining the boundaries of the blasting
area. The issue is whether the blaster considered and employed
these factors in this case. The burden of proof lies with the
Secretary to establish a violation.
The first factor, the geology of the rock, was addressed
extensively at the hearing . The rock at the Sedillo Mine is
highly fractured and contains many horizontal and vertical
cracks, called "voids" at the hearing. These voids are plainly
visible in the photographs of the pit. (Exs . G-3, G-5 ) . The
evidence establishes that a rock formation with voids is more
likely to produce fly rock because the rock is highly fractured
and because explosive material can enter these voids when the
shot is loaded. The evidence does not establish, however, that
the presence of fractured rock should have put Western Mobile or
Mr. Anglin on notice that fly rock could reasonably be expected
to travel 500 feet into the pit. Mr Carnahan discussed this
particular shot with Mr. Anglin prior to its detonation and
Mr. Anglin did not express any concerns about fly rock.
(Tr. 208).
The individuals in the pit were about 500 feet from the area
being blasted. 6 Mr. Carnahan testified that he has observed 10
to 12 shots while working at the pit. (Tr. 200). In each case,
Mr. Anglin was the blaster who determined the blasting area. In
these shots, Mr. Anglin established a blasting area that varied
between 400 and 550 feet.
(Tr. 200, 203). Fly rock was not
observed at these distances in any of these shots.
(Tr. 201-02 ) .

6

Matt Carnahan measured the distanqe between the shot and
his location as 530 feet.
(Tr. 198) .
22 27

Mr. Anglin has an established procedure he . followed when
voids were encountered. He places ammonium nitrate bags down the
drill hole to block the void and stem off the hole. He then
places cuttings into the hole and continues to load the hole.
(Tr. 206). He adds a second detonator to reduce the risk of a
misfire . Voids were encountered in a number of the holes in the
shots that Mr. ·carnahan observed. He did not see any fly rock .
{Tr . 207) .
The Secretary ' s witnesses did not testify that Mr. Anglin's
procedures are inadequate when encountering voids in the rock.
Indeed, Mr . Fisher speculated that the blaster must have "missed
one" of the holes when using this procedure and that this
"missed" hole created the fly rock.
(Tr. 250). The Secretary's
witnesses concluded that the procedures were inadequate in this
instance because a person was hit and injured . This analysis
begs the question. There was no showing that the fact that voids
were encountered, a not infrequent occurrence, should have put
Western Mobile on notice that the people in the pit were in an
area where fly rock could reasonably be expected. The procedures
used by Mr. Anglin were designed to compensate for the voids and
had apparently been successfully applied in previous blasts. I
note that Mr. · Anglin has over 20 years of experience in blasting
and is a certified blaster.
{Tr. 63, 209). 7
A second factor is the blasting history at the mine.
Inspector Sauvageau testified that he observed Jones Construction
conduct a blast at the mine in 1991 that was detonated from the
plant. He stated that the distance between the shot and the
detonation point was about 1,500 feet.
He also stated that all
employees not involved in the blast assembled at the entrance to
the plant some 2,000 feet from the blast site. Mr. Carnahan testified that Western Mobile requires employees to assemble at the
plant gate so tha t a head count can be made to make sure that no
employees are in the blasting area.
{Tr. 210-12). In addition,
under New Mexico law certain nearby roads are required to be
blocked during all blasts and employees are dispatched from the
plant gate to perform this function.
Id.
Moreover, the fact that one blast was detonated from a
greater distance than the September 1993 blast does not establish
an adverse "blasting history" at the mine . All witnesses agreed
that the blasting area changes with the factors discussed above.
Nothing in the record indicates that blasts are routinely detonated from 1,500 feet or that the blast at issue was detonated
from an unusually close location. In addition, Inspector
7

Despite the fact that Mr . Anglin knew more about the
factors considered in establishing the blasting area than anyone
else a t the mine, Inspector Sauvageau did not talk to Mr. Anglin
during his investigation of this accident.
(Tr. 57, 87}.
·2 2 28

Sauvageau did not have any knowledge of factors considered by
Jones construction when e.s tablishing the ·blasting are~ in the
1991 blast. For example, the blaster could have used signif icantly more explosives in that blast, thereby requiring that a
larger blasting area be established. Thus, the record does not
establish that Western Mobile or Mr. Anglin failed to consider
the blasting history when establishing the blasting area in this
case. 8
There is no evidence that MSHA considered any of the other
factors in determining that a violation occurred. For example,
MSHA did not consider the depth, diameter, and angle of the
holes, the delay system, powder factor, or the amount or type of
explosives used. MSHA is not required to consider all factors,
but i t is difficult to determine whether the blasting experience
at a mine should have alerted an operator to the danger of fly
rock in a particular blast without some consideration of these
other factors. 9
In this case, the Secretary adequately set forth the factors
that a reasonably prudent person should consider in establishing
the blasting area.
I find, however, that the Secretary did not
establish that Western Mobile or its contractor failed to adequately consider or employ these factors when the blast was detonated on September 15, 1993. Instead, the Secretary's witnesses
asserted that because someone was injured, all persons were not
cleared and removed from the blasting area.
Although the Secretary showed that fly rock is more likely
in the presence of highly fractured rock, i t is clear that large
areas of the pit are fractured and that the blaster takes precautions to deal with these conditions and the resulting voids. The
Secretary did not establish that the blaster failed to consider
the fractured nature of the rock when detonating the blast or
that he was unqualified to establish a safe blasting area as a
result of these conditions.
8

Inspector Sauvageau also ref erred to an incident that
occurred in the late 1980's in which a piece of fly rock struck
the mine's scale house.
(Tr. 37). · He testified that the scale
house was located about 1,500 feet from the blast site.
Id.
Western Mobile presented evidence that the scale house was at a
different location at the time of that incident and that the
distance to the blast site was about 300 feet.
(Tr • .177}.
For
the reasons stated above, this incident does not establish a
blasting history that should have put Western Mobile on notice
that 500 feet was not a safe distance.
9

Of course, the blast that caused the accident in this
case is now an important part of Western Mobile's blasting
history.
2229

IV.

ORDER

Accordingly, Citation No. 4109895 issued to Western Mobile
New Mexico~ Inc . is hereby VACATED and this proceeding is
DISMISSED.

Richard W. Manning
Administrative Law Judge

~r--f___._
[,/

Distribution:
Robin S. Horning, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin street, suite ~01, Dallas, TX 75202
(Certified Mail)
Katherine Shand Larkin, Esq., JACKSON & KELLY, 1660 Lincoln
Street, Suite 2710 , Denver, CO 80264 {Certified Mail)
RWM

2230

·

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
I

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

December 18, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
BEHALF OF ARTHUR R. OLMSTEAD,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEST 96-81-D
DENV CD 95-20
Savage Mine
Mine ID 24-00106

KNIFE RIVER MINING COMPANY,
Respondent
ORPER OP TEMPORARY REINSTATEMENT

This case is before me pursuant to Section lOS(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c).
On November 24, 1995, the Secretary, on behalf of Arthur
Olmstead, filed an application for temporary reinstatement.
Subsequently, the parties reached an agreement concerning the
temporary economic reinstatement of the Complainant. A Response
to Application for Temporary Reinstatement and Agreed Order
Regarding Temporary Economic Reinstatement, memorializing that
agreement, was filed on December 11, 1995.
Accordingly, the agreement for temporary economic
reinstatement is APPROVED. It is ORDERED that the Complainant
shall be TEMPORARILY REINSTATED by the Knife River Mining
Company, effective December 7, 1995, in accordance with the terms
of the Agreed Order Regarding Temporary Economic Reinstatement,
which is attached to this order and whose provisions are
incorporated in this order by reference thereto.

~tff1cf!i!'a.

Administrative Law Judge

2231

Attachment
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 Anthony George, Esq., Jackson &
Kelly, 1600 Lincoln St., Suite 2710, Denver, CO. 80264
(Certified Mail}
/lt

2232

ADMINISTRATIVE LAW JUDGE ORDERS

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

December 8, 1995
SECRETARY OF LABOR,

CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Docket Nos . LAKE 94-72, etc .

v.

Buck Creek Mine

BUCK CREEK COAL INC. ,
Respondent
ORDER GRANTING. IN PART. AND
DENXING. · IN PART. RESPONDENT'S MOTION TO COMPEL

Buck Creek has filed a motion to compel the Secretary to
produce MSHA inspectors' notes taken during inspections of Buck
Creek; conference worksheets; memoranda relating to civil special
investigations, special assessments and civil knowing and wilful
violations; and, all other investigative files on civil section
110 cases, ·30 U.S.C. § 820(c). Claiming the "work-product"
privilege found in Rule 26(b} (3) of the Federal Rules of Civil
Procedure or that the documents relate to the criminal
investigation of Buck Creek, the Secretary ob jects t o the
production of eleven pages of conference worksheets, 25 memoranda
relating to knowing and wilful v iolations and files in three
section 110 cases . 1
By order dated October 20, 1995, I ordered the Secretary to
provide, for my in camera inspection, a copy of each contested
document. Buck Creek Coal, Inc., 17 FMSHRC 1805 (October 1995 ) .

The Secretary's response states that the requested
inspectors' notes were provided to the Respondent on October 10,
1995.
1

2 2 33

For the reasons indicated, the Respondent's motion is granted or
denied as discussed below. 2
Conference Worksheets

The Secretary asserts that eleven pages of conference
worksheets "contain the mental impressions of the conference
officers when reviewing and discussing a citation" and,
therefore, come within the "work-product" privilege. For a
document to come within the "work-product" privilege, it must
have been prepared in anticipation of litigation or for trial.
Asarco, Inc., 12 FMSHRC 2548, 2558 (December 1980). In that same
decision, however, the Commission held that if "litigation is
contemplated but the document was prepared in the ordinary course
of business rather than for the purposes of litigation, it is not
protected." Id.
With the exception of three documents identified only by the
numbers 4262876, 4262982 and 4262989 and a two-page document
dated "5-31-95" and signed by "Michael D. Rennie, Conferencing
Officer", it appears that the documents, t6 the extent they are
comprehensible at all, are notes taken during a conference rather
than the recording of mental impressions of conference officers
when reviewing and discussing a citation. The three numbered
documents (the numbers apparently refer to citation or order
numbers) and the May 31 document arguably do contain some mental
impressions. Nonetheless, conference worksheets are prepared in
the ordinary course of business and not solely for the purposes
of litigation . Therefore, they are not protected by the "workproduct" privilege and are discoverable . Accordingly, the
Respondent's motion to compel the production of copies of the
eleven pages of conference worksheets will be granted..
Kemoranda Relating to J91owing/Wilful Violations

The Secretary asserts that 12 of the 25 memoranda relate to
the criminal investigation of Buck Creek. In addition, he argues
that all of the memoranda come with the "work-product" privilege.
The Secretary has not identified which 12 of the memoranda relate
Since the Secretary bas not objected to producing any of
the documents on the grounds of relevancy, I am assuming for the
purposes of this order that they are all relevant.
2

2 234

to the criminal investigation. Nor has he indicated how they are
related. Consequently, I find that that is not a basis for
withholding the documents. I do find, however, that the
memoranda come within the •work-productn privilege.
The memoranda are reviews by the Supervisory Special
Investigator of 104(d} (1) or 104(d} (2) orders or 104(a) citations
issued in conjunction with a 107(a} order, 30 U.S.C. §§. 814 and
817, which had been issued to Buck Creek, for possible knowing
and/or wilful violations under Section llO(c) or (d) of the Act,
30 u.s.c. § 820(c} and (d). In each instance, the violation was
considered against criteria set out by MSHA for determining
whether a violation is knowing and/or wilful . In each case, the
recommendation was either -no further action under Section llO(c)
or (d) of the Act with regard to this particular violation,• or
that •the case be closed.•
The recommendation, however, does not determine whether the
document was prepared in anticipation of litigation. Rather, it
is the purpose of the review whi~h is . disp~sitive . In this case,
the purpose of the · review is to allow the Secretary to determine
whether a special investigation should be commenced under Section
llO(c) or (d) . The Commission has held that •[a] major function
of an MSHA special investigation is to determine whether
litigation should be commenced under section llO(c) or (d) of the
Mine Act." Asarco at 2559. Furthermore, the recommendation of
the Superviso ry Special Investigator would not preclude the
Secretary from instituting a special investigation. Accordingly,
I conclude that the memoranda were made in anticipation of
litigation and are protected by the "work-product" privilege.
Having determined that the memoranda come within the "workproduct" privilege, they are subject to discovery "only upon a
showing that the party seeking dis~overy has substantial need of
the materials in the preparation of the party's case and that the
party is unable without undue hardship to obtain the substantial
equivalent of the materials by other means . n Fed. R. Civ. P.
26(b} (3}. Buck Creek has made no such showing. Accordingly, the
motion to compel the 25 memoranda relating to knowing/wilful will
be denied .

22 35

Section 110 Inyestigatiye files

The Secretary has submitted three Section 110 ·investigative
files for inspection. 3 The Secretary objects to producing these
files because they relate to the criminal investigation and
because they are covered by the "work-product" privilege. With
respect to one of the files, I conclude that it is related to the
criminal investigation. I am unable, however, to reach a
conclusion one way or the other concerning the remaining two
files . On the other hand, I find that all of the files are
within the "work-product" privilege.
Despite the Commission's instructions in Buck Creek Coal
Inc., 17 FMSHRC 501, 505 (April 1995), that "[t]he judge should
also consider this commonality of evidence when determining the
limits of discovery in order to permit civil proceedings to
advance without prejudice to criminal matters," the Secretary has
not indicated how the 110 investigations are related to the
criminal matters. Notwithstanding that, I note that MSHA case
file No. VINC-CSI-93-08 involves three orders that I recently
continued on stay as being related to the criminal investigation
of Buck Creek. Buck Creek Coal, Inc., 17 FMSHRC 2149 (November
1995) . Consequently, I conclude that the file is not
discoverable since it involves evidence and issues in the
criminal case. I conclude that discovery of the remaining two
files is not precluded by a commonality of evidence and issues
with the criminal investigation.
The Respondent originally indicated that eight 110
investigative files were being withheld. In the cover letter
submitting the documents for my inspection, counsel for the
Secretary stated that six such files were enclosed. In fact,
there were only three 110 investigative files. In re~ponse to my
inquiry about the discrepancy, counsel for the Secretary s~ated
in a letter dated December 5, 1995, that:
3

In response to the court's October 20, 1995 .order to
submit documents for in camera inspection, the ·Federal
Mine Safety and Health Administration has informed me
that after a search of its files there are only three
section llO(c) investigative files instead of six. At
the time, MSHA bel1eved that there were six files, but
apparently they were mistaken.

2236

However, I conclude that all of the files were established
in anticipation of litigation. This is so because the purpose of
a 110 investigation "is to allow the Secretary to determine
whether a case should be filed . " Asarco , supra. Accordingly, I
find that the three 110 investigate files are within the scope of
the "work-product" privilege. Since Buck Creek has not made the
requisite showing of substantial need and undue hardship
discussed above, the files are not discoverable and, with regard
to them, the motion to compel will be denied.
ORDER
Accordingly, Buck Creek's motion to compel is GRANTED with
respect to the eleven pages of conference worksheets and DENIED
with respect to the 25 memoranda and the three 110 investigative
files. The Secretary is ORDERED to provide counsel for Buck
Creek copies of the eleven pages of conference worksheets within
15 days of the da.te of this order.

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

2237

FEDERAL MINE SAFBTY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303 - 844-5268
December 14, 1995

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 95-426-M
A. C. No. 24 - 00338-05502 QKD

v.

continental Mine

INTERMOUNTAIN I RECO, INC.,
Respondent
ORDER DENYING MOTION FOR SUMMARY DECISION

Respondent has filed a motion for summary decision in this
case pursuant to Commission Rule 67, 29 C.F.R. § 2700.67. Rule
67(b) sets forth the grounds for granting summary decision, as
follows:
A motion for summary decision shall be
granted only if the entire record, including
pleadings, depositions, answers to interroga tories, admissions, and affidavits, shows:
(1) That there is no genuine issue
as to any material fact; and
(2) That the moving party is entitled to summary decision as a
matter of law .
The two citations in this proceeding state that trucks containing ammonium nitrate were parked inside Respondent's repair
shop . The citations allege a violation of 30 C.F.R. § 56.6801,
which provides:
" Vehicles containing explosive material and
oxidizers shall not be taken into a repair garage or shop."
Respondent contends that ammonium nitrate is an oxidizer, not an
explosive material .
It argues that the plain language of the
safety stan dard prohibits vehicles containing "explosive material
and oxidizers" from entering repair garages and shops.
since the
cited trucks contained oxidizers but not explosive materials, Respondent argues that the safety standard does not apply and the
citations should be vacated. Respondent maintains that t he unambiguous wording of the regulat i on supports its position that
v e hicles containing ox i dizers alone do not violate the safety
standard.
2238

The Secretary opposes the motion f o r summary decision. He
argues that the plain language of the standard p r ovides t h at a
vehicle containing only oxidizers is prohibited from entering a
repair garage or shop. He contends that Respondent's interpretation of the word " and " in the standard is too narrow and that
this term also means " as wel l as " and " or. " Second, he contends
that the regulatory history of this provision supports his posi tion .
Finally, he argues that the trucks contained fuel oil and
ammonium nitrate in separate compartments and that these mat erials constituted an explosive material when combined.
The term " explosive material " is defined as " explosives,
blasting agents, and detonators ." 30 C.F.R. § 57.6000. The term
" oxidizers" is not defined in the Secret ary ' s regu lati ons. Nevertheless, the parties do not dispute that the ammonium nitrate
on the trucks was an oxidizer and not an explosive material, as
those terms are used in the standard .
Each citation was modified
by the MSHA inspector to include the following language:
Further investigat i on revealed that the
trucks .. . were loaded with ammonium nitrate
which is an oxidizer but does not become explosive until it is mixed with an emulsifier
containing fuel oil. There was no danger of
these trucks explod i ng in the repair shop
without a major fire b eing present.
As a result of this modification, MSHA determined that the
alleged vio l ations were not significant and substantial.
I find that Respondent is not entitled to summary decision
under Commission Rule 67. First, there are genuine issues concerning the facts in this case. There is no evidence as to the
meaning of the term " oxidizers " in the standard .
In addition,
the record contains no evidence about the relationship between
oxidizers and explos i ve materials. The Secretary alleges that
the trucks contained fuel oil and ammonium nitrate but that these
materials were located in separate compartments.
It is .my under standing that ANFO is created when these materials are mixed.
Is
ANFO an explos i ve material? If ammonium nitrate and fuel oil are
in separate compartments is a expldsive material present? Do
" explosives," " blasting agents " or " detonators," as those terms
are used in the definition of "explosive materials," contain
oxidizers? In short, the record does not contain the factual
foundation I need to analyze the legal questions raised by
Respondent.
The essence of Respondent's argument is that the regulation
unambiguously provides that a vehicle violates the standard only
if it contains both explosives and oxidizers. It bases this
argument on the conjunctive l:lsage of the word " and. 11 As stated
by the Secretary, however, the word 11 and 11 can be used in the
2239

disjunctive sense.
Under Respondent's interpretation, a truck
containing only explosive materials would be permitted in a
repair shop. Thus, a truck loaded with explosive materials that
is parked in a repair shop would not violate the standard unless
the truck also contained oxidizers. such an interpretation does
not appear to be logical, but I cannot say for certain because
the record is devoid of basic information about explosive materials and oxidizers.
When a regulation is capable of being construed in two different ways by reasonably well-informed people, it is not unambiguous.
Based on the limited record in this case, it would
appear that section 57.6801 is capable of two logical interpretations, as presented by the parties. Respondent would have me
rule on its motion based on a blind analysis of the meaning of
the word "and." I believe that the word "and" must be interpreted in the context of the safety standard. The record does
not contain sufficient facts for me to construe the meaning of
that word within the standard at this time. The cases cited by
Respondent are not inconsistent with my analysis.
Accordingly, Respondent's motion for summary decision is
DENIED on the basis that there are genuine issues of material
fact and Respondent is not entitled to summary decision as a
matter of law.
For the same reasons, the Secretary's cross
motion for summary decision is also DENIED.

Richard W. Manning
Administrative Law Judge

Distribution:
Ms. Barbara J. Renowden, Conference and Litigation Representaative, Mine Safety and Health Administration, P.O. Box 25367,
Denver, co 80225-0367
Robert A. Bingham, Esq., DYNO NOBEL, INC., Crossroads Tower,
Eleventh Floor, Salt Lake City, Utah 84144
RWM

2240

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

December 18, 1995

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

CIVIL PENALTY PROCEEDING
Docket No. SE 95-451-M
A. C. No. 09-01059-05506

v.
ECC INTERNATIONAL,
Respondent

Buffalo China Clays Company

DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
This case is before me upon a petition for assessment of a
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977.
The parties have filed a joint motion to
approve settlement for the one violation in this case. A reduction
in the penalty from $4,000 to $3,600 is proposed. A fatality is
involved.
Citation No. 3599861 was issued for a violation of 30 C.F.R.
56.9305(a) which requires that if truck spotters are used, they
should be in the clear while trucks are backing into dumping
position or dumping. The shift leadman was directing traffic and
supervising road repairs at a dump location and failed to stand
clear of a truck backing into dumping position and the truck backed
over the leadman killing him.
According to the citation, the
violation was significant and substantial and negligence was rated
as low. The respondent in this case is the operator of this mine.
§

I cannot approve the settlement motion.
The parties are
reminded that the Commission and its judges bear a heavy responsibility in settlement cases pursuant to section llO(k) of the Act.
30 U.S.C. § 820(k); See, S. Rep. No. 95-181, 95th Cong., 1st Sess.
44-45, reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 632-633 (1978). It
is the judge's responsibility to determine the appropriate amount
of penalty, in accordance with the six criteria set forth in
section llO(i) of the Act. 30 U.s.c. § 820(i); Sellersburg Stone
Company v. Federal Mine Safety and Health Review Commission, 736
F.2d 1147 (7th Cir. 1984).
The violation in this case is the ultimate in gravity.
However, the settlement motion fails to discuss any of the facts

2241

surrounding the fatality or identify the reasons for the proposed
reduction.
The parties have submitted nothing more than a
boilerplate motion. Even where the proposed reduction is only 10%,
I cannot approve any penalty for this fatality when I do not know
what happened.
A virtually identical settlement motion was filed in Docket
No. SE 95-432-M which is the penalty proceeding against the
independent contractor who employed the driver of the truck
involved in the accident. It too, is being disapproved.
In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date
of this order the parties submit appropriate information
to support their settlement motion. Otherwise, this case will be
set for hearing.

Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
John A. Black, Esq., Office of the Solicitor, U.S. Department of
Labor, 1371 Peachtree St., N.W., Room 339, Atlanta, GA
30367
Mr. E. Stewart Martin, Safety and Health Manager, ECC International, P. O. Box 471, Sandersville, GA 31082
Douglas N. White, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., 414, Arlington, VA 22203
/gl

2242

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR

WASH6NGTON, D.C.

20006

December 18, 1995

CIVIL PENALTY PROCEEDING

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

Docket No . SE 95-432-M
A. C. No . 09-01059-05502 C6C
Buffalo China Clays Company

v.
C T HARRIS INCORPORATED,
Respondent

DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is before me upon a petition for assessment of a
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 . The parties have filed a joint motion to
approve settlement for the one violation in this case . A reduction in the penalty from $5,000 to $4,500 is proposed. A
fatality is involved .
Citation No . 3599862 was issued for a violation of 30 C. F . R.
56.9305(c) which requires that when a truck driver cannot
clearly recognize a spotter's signal, the truck should be
stopped. A truck driver in the employ of the respondent did not
know the location of the shift leadman and backed his truck over
the leadman killing him. According to the citation, the violation was significant and substantial and negligence was rated as
low . The respondent in this case is an independent contractor
performing work at this mine.

§

I cannot approve the settlement motion. The parties are
reminded that the Commission and its judges bear a heavy responsibility in settlement cases pursuant to section llO(k) of the
Act . 30 U. S.C . § 820(k); See, S. Rep. No. 95-181, 95th Cong . ,
1st Sess. 44-45 , reprinted in Senate Subcommittee on Labor,
Committee on Human ResourceS'; 95th Cong . , 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at
632-633 (1978) . It is the judge's responsibility to determine
the appropriate amount of penalty, in accordance with the six
criteria set forth in section llO(i) of the Act. 30 U. S . C.
§ 820(i) ;
Sellersburg Stone Company v . Federal Mine Safety and
Health Review Commission, 736 F.2d 1147 (7th Cir. 1984).

2243

The violation in this case is the ultimate in gravity.
However, the settlement motion fails to discuss any of the facts
surrounding the fatality or identify the reasons for the proposed
reduction. The parties have submitted nothing more than a
boilerplate motion. Even where the proposed reduction is only
10%, I cannot approve any penalty I do not know what happened .

A virtually identical settlement motion was filed in Docket
No. SE 95-451-M which is the penalty proceeding against the
operator of this mine involving the same accident.
It too, is
being disapproved.
In light of the foregoing, i t is ORDERED that the motion for
approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date
of this order the parties submit appropriate information
to support their settlement motion . Otherwise, the case will be
set for hearing.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

John A. Black, Esq., Office of the Solicitor, U.S. Department of
Labor, 1371 Peachtree St., N.W . , Room 339, Atlanta, GA
30367
Mr. Richard G. Jones, Safety Manager, C T Harris, 9411 Deepstep
Road, Sandersville, GA 31082
Douglas N. White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Su~te
414, Arlington, VA 22203
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