AUGUST 1996

COMMISSION DECISIONS
08-05-96
08-07-96
08-19 - 96
08-22-96
08-28-96
08-29-96
08 - 30 - 96

Sec. Labor on behalf of Perry Poddey
v. Tanglewood Energy, Inc.
Day Branch Coal Company, et al.
BHP Minerals International Inc.
Sec. Labor on behalf of Ronald Markovich
v. Minnesota Ore Operations
Amax coal Company
New Warwick Mining Company
Manalapan Mining Company

WEVA 93 - 339-D
KENT 94 - 1077 - R
CENT 92 - 329

Pg. 1315
Pg. 1339
Pg. 1342

LAKE 96-139-DM
LAKE 94-55
PENN 93 - 199- R
KENT 93-646

Pg.
Pg.
Pg.
Pg.

SE

Pg. 1399

1349
1355
1365
1375

ADMINISTRATIVE LAW JUPGE DECISIONS
08-01-96
08-02-96
08-05-96
08 - 08-96
08-09-96
08-12 - 96
08 - 14 - 96
08-23-96
08-23-96
08-23-96
08-23-96
08-28-96
08-30-96

Vecellio & Grogan Inc.
Sec. Labor on behalf of Cletis Wamsley,
Et al. v. Mutual Mining Inc.
Gouverneur Talc Company, Inc .
Knife River Coal Mining Co.
Glenn's , Trucking Co., Inc.
Manalapan Mining Co1npany
Primrose ·Coal Company
Harlan Cumberland Coal Co.
BHP Minerals International
Utah Fuel Company
Extra Energy, Inc.
Island Creek Coal company
Lakeview Rock Products, Inc .

96-9-M·

WBVA 93-394-D
YORK 95-112-M
WEST 95-500
KENT 95 - 781
KENT 96 - 165
PENN 96 - 125
KENT 96 - 20
CENT 92 - 329
WEST 93 - 402
WEVA 96-13
KENT 95-214
WEST 94 - 504-M

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

1412
1414
1428
1437
1438
1443
1447
1465
1469
1489
1498
1504

CENT 96 - 81
CENT 95-108 - RM
WEST 95 - 434-M

Pg. 1521
Pg. 1527
Pg. 1532

APMINISTEATIYE LAW JUDGE ORDERS
08 - 06 - 96
08-21 - 96
08-30-96

Falkirk Mining Company
Summit, Incorporated
Newmont Gold Company

i

B.

Unemployment Compensation 14

In Meek v. Essroc Corp., 15 FMSHRC 606 (April 1993 ), a three-member majority of the
Commission adopted as agency policy the deduction of unemployment compensation from
backpay awards. Id. at 618. The majority reasoned that the issue was a matter of agency
discretion and that such a deduction comports with the Mine Act's goal of making miners whole.
Id. at 616-18. It noted that the "Commission seeks to fashion relief that is just and does not
overcompensate the discriminatee." Id. at 617 (citation omitted). The majority stated that the
employer would still be required to place the discriminatee in the position he was in but for the
unlawful discrimination, but that the employer should not additionally compensate the miner for
funds that he or she received as earnings for working during the interim or as unemployment
compensation. Id. at 617-18. The majority noted that when "an individual receives
unemployment compensation, his previous employer is, as a result, taxed at an increased rate,
depending upon the degree of experience rating." Id. at 618 n.11 (citation omitted).
Commissioner Backley dissented in Meek, concluding that, although the deduction of
unemployment compensation was a matter of agency discretion, the majority had abused its
discretion. fd. at 621., He concluded that the majority had acted arbitrarily by relying upon a
rationale rejected by tile Supreme Court in NLRB v. Gullett Gin Co., 340 U.S. 361 (1951 ).
Commissioner Backley explained that, in finding that the NLRB acted properly within its
discretion by refusing to deduct unemployment compensation from back pay, the Supreme Court
rejected the arguments that unemployment compensation should be treated as earnings or
considered as direct payments from the employer and properly set off against back pay. Id. at
621-22, citing Gullett, 340 U.S. at 363, 364. Commissioner Backley further concluded in his
Meek dissent that the majority's policy failed to fairly balance the interests of the parties, noting
that by ensuring that "illegally discharged miners not receive a windfall, [the majority] has
adopted a national policy which will at times provide an employer with a windfall" under state
unemployment compensation laws, and that their choice of employer over the victim of
wrongdoing seemed "illogical and unfair." Id. at 625 (emphasis in original). Commissioner
Backley also noted the majority of courts of appeals have opted not to deduct unemployment
compensation, and that four circuits (the Third, Fourth, Ninth, and Eleventh) have removed the

14

All Commissioners reverse the judge's deduction of unemployment compensation
from Poddey's backpay award. Commissioner Marks and I reach our determination based on the
rationale set forth in the dissents in Meek v. Essroc Corp., 15 FMSHRC 606, 621-26 (April
1993 ), and Secretary ofLabor on behalfofNantz v. Nally & Hamilton Enterprises, Inc., 16
FMSHRC 2208, 2221-29 (November 1994). All Commissioners reverse based on the
applicability of the court's holding in Secretary ofLabor on behalfof Wamsley v. Mutual
Mining, Inc., 80 F.3d 110 (4th Cir. 1996) to the instant case, which arises in the Fourth Circuit

1323

AUGUST

1996

Review was granted in the following cases <luring the month of August;
Day Branch Coal Company, Inc., and Bobby Joe Hensley v. Secretary of Labor,
MSHA, Docket Nos. KENT 94 - 1077-R through KENT 94-1190 - R.
(Judge Maurer,
June 27, 1996)
Asarco, Inc. v. Secretary of Labor, MSHA, Docket Nos. CENT 95 - 8-RM, etc.
(Judge Manning , July 16, 1996)
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. WEVA 94-57.
(Judge Barbour, July 19, 1996)

No cases were filed in whi ch Reyi ew was denied.

ii

COMMISSION DECISIONS

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

August 5, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of PERRY PODDEY

v.

Docket No. WEV A 93 -339-D

TANGLEWOOD ENERGY, INC.
BEFORE: Holen, Marks and Riley, Commissioners 1
DECISION
BY: Riley, Commissioner2
This discrimination proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 80 1 et seq. (1994) ("Mine Act" or "Act"), raises the question of whether
Administrative Law Judge Arthur Amchan properly considered and applied certain penalty
criteria in section l lO(i) of the Mine Act3 in assessing a $100 civil penalty against Tanglewood

1

Chairman Jordan has recused herself in this matter. Pursuant to section 113(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 823(c), Commissioners Holen, Marks
and I have designated ourselves a panel of three Commissioners to exercise the powers of the
Commission.
2

I am the only Commissioner in the majority on all issues presented.

3

Section 11 O(i) sets forth six criteria for assessment of penalties under the Act.
The Commission shall have authority to assess all civil
penalties provided in [the 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.

1315

Energy, Inc. ("Tanglewood") for discharging Perry Poddey in violation.of section 105(c)(l) of
the Mine Act, 30 U.S.C. § 815(c)(l), and whether the judge erred in deducting unemployment
compensation from back pay he awarded Poddey.4 15 FMSHRC 2401(November1993) (ALJ).
For the reasons that follow, the Commi.ssion vacates the penalty and remands for assessment
consistent with this decision, and reverses the judge's deduction of unemployment compensation.

I.
Factual and Procedural Back2round
Tanglewood operates the Coal Bank 12 Mine, an underground coal mine in Randolph
County, West Virginia. On November 3, 1992, Kenneth Tenney, an inspector from the
Department of Labor's Mine Safety and Health Administration ("MSHA"), issued a ·citation to ·
Tanglewood alleging a violation of 30 C.F.R. § 75.523-3(a) (1995) because a scoop operated by
Poddey was not equipped with an automatic emergency-parking brake. s 15 FMSHRC at 2403;
Gov't Ex. 1. Although the brake was subsequently installed, the bolt securing it to the scoop
repeatedly became loose, rendering the brake ineffective. Id. at 2403-04. Poddey reported the
problem to the operator's mechanic, Doug McCoy, who tightened the bolt on several occasions.
Id. at 2404. On January 4, 1993, Poddey again reported the problem to McCoy and to Section
Foreman Jeff Simmons, suggesting installation of a second bolt on the brake assembly. Id. The
maintenance crew was informed of the request, but the work was not performed before the
following morning. Id.
'
. ·

30 u.s.c. § 820(i).
4

Section 105(c)( 1) provides in part:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of statutory rights of any
miner .. . because such miner ... has filed or made a complaint
under or related to this [Act], including a complaint notifying the
operator ... of an alleged danger or safety or health violatipn in a
coal or other mine ....

30 U.S .C. § 815(c)(l).
Section 75.523-3(a) provides in part that, "[~]xcept for personnel carriers, rubber-tired,
self-propelled electric haulage equipment used in the active workings of underground coal mines
shall be equipped with automatic emergency-parking brakes ...."
5

1316

On January 5, Inspector Tenney inspected the scoop and discovered that the brake was
inoperable. Id Poddey infonned him that the brake assembly bolt was loose and that he had
previously reported the problem. Id. The inspector issued a citation alleging a violation of
section 75.523-3(a). Id; Gov't Ex. 3.
·
At the end of the shift, Simmons installed the second bolt on the brake assembly. 15
FMSHRC at 2404. Simmons later recounted the circumstances surrounding issuance of the
citation to his supervisor, Randy Key, and indicated that Poddey had a month within which to
repair the brake himself. Id. at 2405.
On January 6, upon reporting to work, Poddey was directed to telephone Key. Id
During the conversation, Key chastised Poddey for complaining to MSHA and advised him that
it was his responsibility to have installed the bolt. Id. at 2405-06. Poddey then confronted
Simmons, accusing him of falsely infonning Key that he had deliberately reported the brake
problem to MSHA. Id. at 2406. Poddey told .Simmons that if the foreman had a problem with
him, they should settle it "outside the gate." Id; Tr. I 116.6 Simmons immediately called Key to
infonn him of the incident. 15 FMSHRC at 2407. Key traveled to the mine and, at the end of
the shift, discharged Poddey. Id.
Poddey filed a discrimination complaint with MSHA and the _Secretary of Labor filed the
present complaint pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). 7 The
Secretary proposed that a civil penalty be assessed against Tanglewood in the range of $2,500 to

6

References to "Tr. I" are to the transcript of the hearing that took place on September 1,
1993; "Tr. II" references are to the September 2 transcript.
7

Section 105(c)(2) provides in part:
Any miner ... who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person
in violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging such
discrimination. Upon receipt of such complaint, the Secretary shall.
forward a copy of the complaint to the respondent and shall cause
such investigation to be made as he deems appropriate. . . . If upon
such investigation, the Secretary detennines that the provisions of
this subsection have been violated, he shall immediately file a ·
· complaint with the Commission ... alleging such discrimination or
interference and propose an order granting appropriate relief.

30 U.S.C. § 815(c).

1317

$3,000. S. Amend. Complaint at 3-4. On May 25, 1993, Poddey was temporarily reinstated to
his job. 15 FMSHRC at 2407-08. The matter proceeded to hearing before Judge Amchan.
The judge determined that Tanglewood had violated section 105(c) by discharging
Poddey. Id. at 2414. He concluded Poddey had engaged in protected activity when he reported
the malfunctioning brake to the mechanic, Simmons and Inspector Te1U1ey, and that Poddey's
discharge was motivated in part by that protected activity. Id. at 2408-09. He determined that,
although Tanglewood fired Poddey "for what it perceived to be a threat to ... Simmons, or at
least insubordinate behavior," Tanglewood had failed to rebut the prima facie case of
discrimination. Id. at 2409, 2414. He reasoned that Poddey had been unjustly blamed for not
repairing the brake, and that Poddey's invitation to fight Simmons and other remarks did not
forfeit Poddey's statutory rights to protection from retaliation. Id. at 2409-14.
The judge determined that, although Tanglewood had a "relatively large number of
previous violations," assessment of a $100 civil penalty was appropriate based on his findings of
gravity and negligence. Id. at 2415. He reasoned that, while Key and Simmons provoked the
outburst leading to Poddey's discharge by unjustifiably blaming Poddey for the violation, there
was no evidence that they "did so with the intention of generally discouraging safety complaints
or cooperation with MSHA." Id. The judge observed that the penalty was warranted nonetheless
because Poddey's discharge did, in fact, tend to inhibit employees in exercising their rights under
the Act. Id. The judge also ordered Tanglewood to pay Poddey "full backpay and benefits with
interest, less the payments he received in unemployment compensation." Id. at 2416.
The Secretary filed a petition for discretionary review, challenging the civil penalty
assessment and backpay award. 8

II.
Disposition
A.

Civil Penalty
1.

General Principles

The Commission's judges are accorded broad discretion in assessing civil penalties
under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (April 1986). The
Commission has cautioned, however, that the exercise of such discretion is not unbounded and
must reflect proper consideration of the penalty criteria set forth in section 11 O(i) of the Mine
Act. Id., citing Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (March 1983), a.ffd, 736 F.2d
1147 (7th pr. 1984). In reviewing ajudge's penalty assessment, the Commission must

8

Tanglewood declined to file a brief.

1318

determine whether the judge's findings are supported by substantial evidence.9 Assessments
"lacking record support, infected by plain error, or otherwise constituting an abuse of discretion
are not immune from reversal ...." U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). The
judge must make findings of fact on the criteria that "not only provide the operator with the
required notice as to the basis upon which it is being assessed a particular penalty, but also
provide the Commission and the courts ... with the necessary foundation upon which to base a
determination as to whether the penalties assessed by the judge are appropriate, excessive, or
insufficient." Sellersburg, 5 FMSHRC at 292-93.
2.

Negligence 10

The Secretary argues that, in applying the negligence criterion, the judge should have
considered whether the operator intended to commit the violation of section 105(c) rather than
whether it intended to generally discourage protected activities. S. Br. at 10. The Secretary
asserts that Tanglewood's violation was intentional, and that the judge "ignored both logic and
the law" in finding low negligence. Id. at 11-12.
Commissioner Marks and I agree with the Secretary that the proper inquiry before the
judge in his consider(\tion of negligence was whether Tanglewood intended to commit the .
violation rather than Whether it intended to chill.future protected activities. Commissioner Mai:ks
and I disagree, however, that a finding that the operator engaged in certain intentional conduct in
violation of section 105(c) necessarily leads to a determination of high negligence.

9

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U$.C. § 823(d)(2)(A)(ii)(I).· "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While
the Commission does not lightly overturn a judge's factual findings and credibility resolutions,
neither is it bound to affirm such determinations if only slight or dubious evidence is present to
support them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir.
1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). ·The
Commission is guided by the settled principle that, in reviewing the whole record, an appellate
tribunal must also consider anything in the record that "faifly detracts" from the weight of the
evidence that supports a challenged finding. Universal Camera Corp. v. NLRB, 340U.S: 474,
488 (1951).
All Commissioners vote to affirm the: judge's finding ~f fow negiigenc~.
Commissioners Marks and I agree that the proper inquiry before the judge was whether
Tanglewood intended to commit the violation of section 105(c). Commissioner Holen concludes
that the proper inquiry was whether.the violation-resulted from more than ordin.ary negligence.
Slip op. at 13 (Commissioner Holen, concurring).
10

1319

The Commission has previously recognized that a finding of high negligence "suggests
an aggravated lack of care that is more than ordinary negligence." Eastern Associated Coal
Corp., 13 FMSHRC 178, 187 (February 1991). Although Key's actions in discharging Poddey
were intentional, there were mitigating circumstances that do not support a finding that such
actions demonstrated an aggravated lack of care. Tanglewood discharged Poddey for what it
perceived to be a threat, or at least insubordinate behavior, toward Simmons. 15 FMSHRC at
2409. Poddey confronted Simmons, yelling at him, accusing Simmons of lying when he told
Key that Poddey had deliberately informed MSHA about the brake problem, and invited
Simmons to fight "outside the gate." 15 FMSHRC at 2406·07; Tr. I 116, 273; Tr. II 19·2 l. In
view of these mitigating circumstances, Commissioner Marks and I conclude that substantial
evidence supports the judge's finding that Tanglewood's violation of section 105(c) involved a
low level ofnegligence. 11 Accordingly, the Commission affirms, in result, the judge's
negligence finding.
3.

Gravity 12

The Secretary argues that, in determining gravity, the judge erred in considering whether
the operator "intended to 'generally discourag[e] safety complaints or cooperation with MSHA'"
and that, rather, a chlUing effect on protected activities should be presumed for any violation of
section 105(c). S. Br. at 12-15, quoting 15 FMSHRC at 2415. The Secretary submits that the
judge should have considered "what effect on miners the violation in fact created." Id at 12. He
asserts that the gravity of Tanglewood's violation was serious because there was compelling
evidence that Poddey's discharge had a severe chilling effect on Poddey and other miners at the
No. 12 Coal Bank. Id. at 15·18.
Contrary to the Secretary's assertions, it appears that the judge's reference to the
operator's intent to discourage safety complaints or cooperation with MSHA was related only to
his consideration of the negligence criterion. Consistent with the Commission's recent holding
in .Secretary ofLabor on behalfof Carroll Johnson v. Jim Walter Resources, Inc., 18 FMSHRC
552, 558 (April 1996), Commissioner Holen and I reject the Secretary's argument that a chilling
effect on protected activities should be presumed for any violation of section 105(c). In Carroll
Johnson, the Commission explained that the Mine Act does not provide for such a presumption
and that references to chilling effect in the legislative history are made in connection with the
temporary reinstatement provision "to protect miners from the adverse and chill~ng effect of loss

11

Commissioner Marks and I note that the Secretary in his regulations for proposing
civil penalties defines high negligence in part by the lack of mitigating circumstances: See 30
C.F.R. § 100.3(d).
12

Commissioner Holen and I affirm in result the judge's finding of low gravity.
Commissioner Marks would recognize a presumption of chilling effect on protected activities in
every instance of a section 105(c) violation and would reverse the judge's finding oflow gravity.

1320

of employment." Id (citations omitted). The Commission noted that "Congress intended that
section 105(c) would protect miners against the chilling effect of employment loss they might
suffer as a result of illegal discharge" and that Congress did not intimate that a chilling effect
should be presumed for every violation. Id The Commission concluded that determinations of
whether a chilling effect resulted from a section 105(c) violation should be made on a case-bycase basis. Id
In making such a determination, the Commission held that both subjective and objective
evidence should be considered and that a finding of chilling effect does not a fortiori mean the
gravity of the violation is high. Id. at 558-59. For objective evidence, the Commission
recognized the appropriateness of considering whether the adverse action "reasonably tended to
discourage miners from engaging in protected activities," citing by analogy authority relating to
the enforcement of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(l)
(1994). Id. at 558, citing in part Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 954
(D.C. Cir. 1988), cert. denied sub nom. A.G. Boone Co. v. NLRB, 490 U.S. 1065 (1989);
Southwest Regional Joint Bd., Amalgamated Clothing Workers ofAm. v. NLRB, 441F.2d1027,
1031 (D.C. Cir. 1970). Subjective evidence of a chilling effect includes testimony of the
complainant or other.,miners. Id. at 559.
\

Applying this test, Commissioner Holen and I reject the Secretary's contention that
Poddey's discharge cre_ated a chilling effect at the mine. The Secretary relies upon Inspector
Tenney's testimony that, after Poddey's discharge, he received such comments from miners at
Coal Bank No. 12 as, "Don't tell anybody I said so." S. Br. at 16. Such subjective evidence
reveals that, although miners were cautious and wary of retaliation, they were nonetheless
communicating their safety and health concerns. Nor do Commissioner Holen and I find
objective evidence of a chilling effect. As the judge found, "there is no indication that
[Tanglewood] would have so retaliated but for the unusual circumstances of this case." 15
FMSHRC at 2415. Because Poddey was discharged in part as a result of his heated
confrontation with Simmons, the discharge would not "reasonably tend[] to discourage miners
from engaging in protected activities." Carroll Johnson, 18 FMSHRC at 558.
To the extent the judge found that Poddey's discharge tended to create a chilling effect
( 15 FMSHRC at 2415), Commissioner Holen and I conclude for the reasons discussed above that
such a finding is not supported by substantial evidence. Accordingly, the Commission affirms
the judge's finding of low gravity.

1321

4.

Histozy of Previous Violations 13

The Secretary argues that, although the judge correctly found the operator had a
"relatively large number of previous violations," the judge erred in failing to give weight to those
violations because there was no evidence of violations of section 105(c). S. Br. at 18. The
Secretary avers that an operator's complete history of violations should be considered and that
the judge ignored such evidence including that the operator was delinquent in the payment of
penalties, and that numerous prior violations involved "a significant threat to miner safety." Id.
at 18-23.
All Commissioners agree with the Secretary that the judge's consideration of previous
violations is not limited to only those involving section 105(c). The Commission has explained
that "section 11 O(i) requires the judge to consider the operator's general history of previous
violations . . . . Past violations of all safety and health standards are considered for this
component." Carroll Johnson, 18 FMSHRC at 557, quoting Peabody Coal Co., 14 FMSHRC
1258, 1264 (August 1992) (emphasis added). All Commissioners disagree with the Secretary,
however, that the judge was required to consider evidence of the operator' s alleged delinquency
in the payment of civil penalties. As the Commission recently held in Secretary ofLabor on
behalfofJames Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 841, 850 (June 1996), an
operator' s delinquency in regard to payment of civil penalties "is not one of the criteria set forth
in section 1lO(i) of the Mine Act for consideration in the assessment of penalties."
Commissioner Holen and I also reject the Secretary' s argument that the judge was constrained to
consider the seriousness of the previous violations. Such consideration is not-required by section
11 O(i) of the Act or by the Secretary in his regulations for proposing penalties. See, e.g., 30
C.F.R. § 100.3(c).
Nonetheless, the judge's terse finding that Tanglewood had "a relatively large number of
previous violations" ( 15 FMSHRC at 2415) does not provide the necessary foundation for our
review of the appropriateness of the $100 penalty, which was a ·significant reduction of the
$2,500 to $3,000 penalty proposed by the Secretary. See Dolese Bros. Co., 16 FMSHRC 689,
695 (April 1994) (adequate findings are "critical" where a judge assesses a penalty that
significantly departs from that proposed by the Secretary). Accordingly, the Commission vacates
the penalty and remands for the assessment of a civil penalty with further findings.

13

All Commissioners remand the judge's history of previous violations determination for
further findings. All Commissioners reject the Secretary's argument that the judge erred in
failing to consider the operator's payment history. Commissioner Holen and I also reject the
Secretary's argument that the judge was required to consider the seriousness of past violations.
Commissioner Holen further rejects his argument that the judge erred in failing to consider that
the mine had been targeted under MSHA' s Joint Mine Assistance Program.

1322

B.

Unemployment Compensation 14

In Meek v. Essroc Corp., 15 FMSHRC 606 (April 1993), a three-member majority of the
Commission adopted as agency policy the deduction of unemployment compensation from
backpay awards. Id at 618. The majority reasoned that the issue was a matter of agency
discretion and that such a deduction comports with the Mine Act's goal of making miners whole.
Id at 616-18. It noted that the "Commission seeks to fashion relief that is just and does not
overcompensate the discriminatee." Id at 617 (citation omitted). The majority stated that the
employer would still be required to place the discriminatee in the position he was in but for the
unlawful discrimination, but that the employer should not additionally compensate the miner for
funds that he or she received as earnings for working during the interim or as unemployment
compensation. Id at 617-18. The majority noted that when "an individual receives
unemployment compensation, his previous employer is, as a result, taxed at an increased rate,
depending upon the degree of experience rating." Id. at 618 n.11 (citation omitted).
Commissioner Backley dissented in Meek, concluding that, although the deduction of
unemployment compensation was a matter of agency discretion, the majority had abused its
discretion. fd. at 621. He concluded that the majority had acted arbitrarily by relying upon a
rationale rejected by the Supreme Court in NLRB v. Gullett Gin Co., 340 U.S. 361 (1951).
Commissioner Backley explained that, in finding that the NLRB acted properly within its
discretion by refusing to deduct unemployment compensation from back pay, the Supreme Court
rejected the arguments that unemployment compensation should be treated as earnings or
considered as direct payments from the employer and properly set off against back pay. Id at
621-22, citing Gullett, 340 U.S. at 363, 364. Commissioner Backley further concluded in his
Meek dissent that the majority's policy failed to fairly balance the interests of the parties, noting
that by ensuring that "illegally discharged miners not receive a windfall, [the majority] has
adopted a national policy which will at times provide an employer with a windfall" under state
unemployment compensation laws, and that their choice of employer over the victim of
wrongdoing seemed "illogical and unfair." Id. at 625 (emphasis in original). Commissioner
Backley also noted the majority of courts of appeals have opted not to deduct unemployment
compensation, and that four circuits (the Third, Fourth, Ninth, and Eleventh) have removed the

14

All Commissioners reverse the judge's deduction of unemployment compensation
from Poddey's backpay award. Commissioner Murks and I reach our determination based on the
rationale set forth in the dissents in Meek v. Essroc Corp., 15 FMSHRC 606, 621-26 (April
1993), and Secretary of Labor on behalfofNantz v. Nally & Hamilton Enterprises, Inc., 16
FMSHRC 2208, 2221-29 (November 1994). All Commissioners reverse based on the
applicability of the court's holding in Secretary ofLabor on behalfof Wamsley v. Mutual
Mining, Inc., 80 F .3d 110 (4th Cir. 1996) to the instant case, which arises in the Fourth Circuit

1323

f.
.·:·

:~~

matter from district court discretion, holding as a matter of law that unemployment compensation
should not be deducted from backpay awards. 15 Id at 623.

In Secretary ofLabor on behalfofNantz v. Nally & Hamilton Enterprises, Inc., 16
FMSHRC 2208 (November 1994), the Commission again considered the appropriateness of
deducting unemployment compensation from backpay awards. Before the Commission, the
Secretary urged .the Commission "to adopt Commissioner Backley' s position" in Meek. 16 Id at
2221. Two Commissioners voted to affirm the judge's decision to deduct unemployment
compensation based on the reasoning and conclusions set forth in Meek. 16 FMSHRC at 221620. Two Commissioners voted to reverse based on the rationale of Commissioner Backley's
dissent in Meek. 17 Id. at 2221-29. The effect of the tie vote was to let stand the judge's ruling.
Id at 2208 n.1 (citation omitted).
The Commission's decision in Nantz was appealed to the U.S. Court of Appeals for the
Sixth Circuit. The appeal was dismissed on motion, without resolution of the issue of deduction
of unemployment compensation. Secretary ofLabor v. Nally & Hamilton Enterprises, No. 944325, 6th Cir. (June 21, 1995).
In Secretary of Labor on behalfof Wamsley v. Mutual Mining, Inc., 80 F.3d 110 (4th Cir.
1996), the court reversed that portion of a Commission administrative law judge's decision
directing the Secretary to deduct unemployment compensation from the backpay awards of five
miners who had been discharged in violation of section 105(c) of the Act. Id. at 116. The
administrative law judge's decision had adhered to Meek, 15 FMSHRC at 616-18. Id at 113. In
reaching its conclusion, the Court relied upon Martin v. Occupational Safety and Health Review
Comm 'n, 499 U.S. 144 (1991), in which the Supreme Court recognized that the Secretary's
reasonable interpretation of a regulation promulgated by the Secretary, pursuant to her authority
under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (1994) ("OSH
Act"), was entitled to deference over a reasonable, but conflicting, interpretation by the

15

Meek did not appeal the Commission's decision.

16

The Secretary was not a party to Meek.

17

The dissenting Commissioners also noted that suosequent to the issuance of Meek, the
Eighth Circuit reversed the district court's deduction of unemployment compensation from a
backpay award in a case arising under the Age Discrimination in Employment Act, 29 U.S.C.
§ 621 et seq. (1994), stating in part that, "no circuit that has considered the matter has determined
that unemployment benefits should, as a general rule, be deducted from backpay awards in
discrimination cases." 16 FMSHRC at 2227-28, quoting Gaworski v. !IT Commercial Finance
Corp., 17 F.3d 1104, 1113 (8th Cir. 1994) (emphasis omitted). The Eighth Circuit joined the
majority of circuits in holding as a matter of law that unemployment benefits should not be
deducted from backpay awards. Gaworski, 17 F.3d at 1114.

1324

Occupational Safety and Health Review Commission ("OSHRC"). Wamsley, 80 F.3d at 114.
The Wamsley Court analogized that this Commission, which it considered a "neutral arbiter" that
possesses "nonpolicy-making adjudicative powers," should have deferred to .the interpretation
disallowing deduction of unemployment compensation advanced by the Secretary, whom it
considered to be endowed with "historical familiarity and policymaking expertise." 18 Id at 11415, quoting Martin, 499 U.S. at 153, 154, 155.19
In the instant case, Judge Amchan, citing Meek, directed that Poddey's backpay award be
reduced by the amount of unemployment compensation he had received. 15 FMSHRC at 2416.
Commissioner Marks and I are persuaded by the rationale of the dissents in Meek, 15 FMSHRC
at 621-26, and Nantz, 16 FMSHRC at 2221-29, that unemployment compensation should not be
deducted from backpay awards. Therefore, the Commission's holding that unemployment
compensation benefits should be deducted, enunciated in Meek and Nantz, is overruled.
Accordingly, the Commission reverses the judge's deduction of unemployment compensation
from Poddey's backpay award. Because the instant case arises within the Fourth Circuit, the
court's holding in Wamsley also requires reversal of the judge's deduction.

'\

18

I do not subscribe to the rationale enunciated by the court in Wamsley. As the
Commission recognized in Drummond Co., 14 FMSHRC 661, 674-75 (May 1992), the "Mine
Act expressly empowers the Commission to grant review of 'question[s] of law, policy or
discretion,' and to direct review sua sponte of matters that are 'contrary to ... Commission
policy' or that present a 'novel question of policy .... "' Id, quoting 30 U.S.C.
§§ 823(d)(2)(A)(ii)(IV) & (B). I agree that, since Congress authorized the Commission to direct
such matters for review, it intended that the Commission possess "the necessary adjudicative
power to resolve them." Drummond, 14 FMSHRC at 675. I suggest that the Supreme Court
expressly applied its holding in Martin only to the "division of powers between the Secretary and
the Commission under the OSH Act" (499 U.S. at 157) because no comparable policy
jurisdiction was expressly granted to OSHRC. Drummond, 14 FMSHRC at 675 n.15.
19

I observe that the Supreme Court in Martin and the Fourth Circuit in Wamsley reached
their determinations without citing and applying the analytical framework of Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984).

1325

III.
Conclusion
For the reasons discussed above, the Commission affirms in result the judge's finding of
low negligence, affirms his finding of low gravity, vacates the penalty and remands for
assessment with further findings on the operator's history of previous violations. The
Commission reverses the judge's deduction of unemployment compensation from Poddey's
backpay award.

1326

Commissioner Holen, concurring:
I agree with the majority in result on all issues but disagree with their rationale on th~
issues of negligence, history of violations, and the deduction of unemployment compensation
from back pay awards.
·

I.

Commissioners Marks and Riley conclude that the proper inquiry before the judge in
determining negligence was whether the operator intended to commit the violation. Slip op. at 5.
Although the operator did so intend, they affirm the judge's conclusion of low negligence only
because there were mitigating circumstances. Slip op. at 5-6.
I agree in result that the operator's negligence here was low, but I disagree that the proper
inquiry before the judge was whether the violation resulted from intentional conduct or that an
intentional violation absent mitigating circumstances necessarily establishes high negligence.
Under Commission c~se law, the proper inquiry as to negligence is whether the violation resulted
from more than ordin~ negligence. Higher levels of negligence and unwarranta})le conduct are
found only when the operator's conduct is determined to have been aggravated . . lQ Mettiki Coal
Corp., 13 FMSHRC 760 (May 1991), the Commission stated:
'Highly negligent' conduct inv9lves more than ordinary nesl.igence
and would appear, on its face, to suggest unwarrantable failure.
Thus, if an operator has acted in a highly negligent manner with
respect to a violation, that suggests an aggravated lack of.care th~t
is more than ordinary negligence.
13 FMSHRC at 770, quoting Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (February
1991). In Mettiki, th~ Commission fo\llld that the operator's intentional conduct in modifying
electrical equipment, altho'l:lgh violative, did not result from high negligence. 13 FMSHRC at
770-71. See r:ilso American Mine Services, Inc., i 5 FMSHRC 1830, 1831-33 (September 1993),
and cases cited therein.
·

II.
..
..
.
Histozy pf Violations

I agree with the majority that, in assessing a civiJ penalty, the judge should consider an
operator's previous viqlations of.all standards and that an operator's delinqµ.ency .i n the payment
of civil penalties sh9uld not b~ considereq because .delinquency is not one of the sectiori 11 O(i)
criteria. I agree with Commissioner Riley that the judge did not err in failing to consider the

1327

seriousness of the operator's previous violations because such consideration is not required under
section 11 O(i) of the Mine Act. Slip op. at 8.
The opinion does not address the Secretary's argument that the judge erred in his penalty
assessment in failing to consider that the mine had been targeted as a problem mine under
MSHA's Joint Mine Assistance Program. S. Br. at 23. I would reject the Secretary's argument
because such consideration is not specified under section 11 O(i). I note, in addition, that such
consideration also is absent from the Secretary's regulations that govern his penalty proposals.
30 C.F.R. § 100.3.
III.
Deduction of Unemployment Compensation
Com.missioners Marks and Riley reverse the judge's deduction of unemployment
compensation from Mr. Poddey's back pay award because they disagree with the Commission 's
precedent. Slip op. at 11 . . I take strong exception to their casual approach in overruling the
Commission's established law.
I concur with the maj ority's disposition of deduction of unemployment compensation
because I am constrained to do so by the decision of the United States Court of Appeals for the
Fourth Circuit in Secretary ofLabor on behalfof Wamsley v. Mutual Mining, Inc., 80 F .3d 110
(4th Cir. 1996). See RNS Services, Inc., 18 FMSHRC 523, 531 (April 1996) (Commissioner
Doyle, concurring). I join Commissioner Riley, however, in respectfully disagreeing with the
court's reasoning. Slip op. at 11 n.18.
A.

Wamsley Decision

In Wamsley, the Fourth Circuit reversed the Com.mission's deduction of unemployment
compensation from back pay awards in discrimination cases filed pursuant to section 105(c) of
the Mine Act, 30 U.S.C. § 815(c). The court concluded that the Supreme Court's decision in
Martin v. Occupational Safety and Health Review Comm 'n, 499 U.S. 144 (1991), controlled and
it held that the Commission was required to defer to the Secretary's interpretation of the Act if it
found that interpretation to be reasonable. 80 F.3d at 114. In so concluding, the court -stated that
the Commission's duties under the Mine Act were those of a "'neutral arbiter' that possesses
'nonpolicymaking adjudicatory powers."' Id., quoting Martin, 499 U.S. at 154, 155. Without
deciding wh~ther the Commission's or the Secretary's interpretation was the "correct" one, the
court found that the Secretary's reading of the Act was "reasonable" and reversed the ·
Commission. 80 F.3d at 115.
The Wamsley decision, in my opinion, misinterprets the Commission's role in
administering the Mine Act. Wamsley ·also incorrectly applies the Supreme Court's holding in
Martin.
·

1328

The Mine Act plainly sets forth the Commission's authority and responsibility to fashion
remedial relief in discrimination cases:
The Commission shall afford an opportunity for a hearing . .. , and
thereafter shall issue an order, based upon findings of fact,
dismissing or sustaining the complainant's charges and, if the
charges are sustained, granting such reliefas it deems appropriate,
including, but not limited to, an order requiring the rehiring or
reinstatement ... with back pay and interest or such remedy as
may be appropriate. . . . Whenever an order is issued sustaining
the complainant's charges under this subsection, a sum equal to the
aggregate amount of all costs and expenses (including attorney's
fees) as determined by the Commission to have been reasonably
incurred by the miner ... shall be assessed against the person
committing such violation.
30 U.S.C. § 815(c)(3) (emphasis added). See 30 U.S.C. § 815(c)(2). See also S. Rep. No. 181 ,
95th Cong., 1st Sess. 37 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 9Sth Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 625 (1978) ("Leg. Hist."). As the Supreme Court stated in Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., where "Congress has directly spoken to the
precise question at issue" and "the intent of Congress is clear, that is the end of the matter." 467
U.S. 837, 842 (1984). Such unambiguously expressed Congressional intent is present in sections
105(c )(2) and (3 ).
Moreover, the Commission, as the administrative agency vested with authority to decide
Mine Act discrimination complaints, is always present in such proceedings; the Secretary,
however, may or may not be present. Section 105(c)(3) provides that, where the Secretary has
refused to proceed with a discrimination complaint, a miner may file an action on his own behalf
before the Commission, i.e., he may hire private counsel or appear prose. The Commission's
paramount role in directing relief in discrimination cases is consistent with its authority
independent of the Secretary in assessing penalties for all violations, including those involving
discrimination against miners. Section 11 O(i) of the Mine Act provides, "The Commission shall
have authority to assess all civil penalties provided in this [Act]." 30 U.S.C. § 820(i). Similarly,
section 11 O(k) states that the Secretary may not compromise, mitigate, or settle any proposed

1329

penalty that has been contested without the Commission's approval. 30 U.S.C. § 820(k). 1 E.g.,
Knox County Stone Co., 3 FMSHRC 2478, 2478-82 (November 1981).
At issue in Martin was an ambiguous regulation2 issued by the Secretary under the
Occupational Safety and Health Act ("OSH Act"), 29 U.S.C. § 65 1 et seq. (1994), and
adjudicated before the Occupational Safety and Health Review Commission. In deferring to the
Secretary's interpretation of the regulation, the Supreme Court relied on both the Secretary's role
in drafting it, which placed her in a better position to be familiar with its purpose, and on her role
in enforcing the regulation, which gave her expertise to assess the effect of a particular
interpretation. 499 U.S. at 152-53.
The issue of deducting unemployment compensation does not involve the choice of
conflicting interpretations of a regulation. Rather, the issue involves interpretation of a remedial
provision of the Mine Act. The Supreme Court's primary rationale for deferring to the
Secretary's interpretation of a regulation in Martin is absent here. The Secretary holds no
advantage over the Commission in discerning the meaning of the statutory provision authorizing
the Commission to structure appropriate relief to miners who are victims of discrimination.
Moreover, the Supreme Court in Martin emphasized that its holding was limited to "the division
of powers between the Secretary and the :Commission under the OSH Act."3 499 U.S. at 157.
The Supreme Court stated in Thunder Basin Coal Co. v. Reich that this Commission "was
established as an independent-review body to 'develop a uniform and comprehensive
interpretation' of the Mine Act." ·510 U.S._, 114 S.Ct. 771, 1271.- Ed. 2d 29, 42 (1994),
quoting Hearing on the Nomination ofMembers of the Federal Mine Safety and Health Review
Commission before the Senate Committee on Human Resources, 95th Cong., 2d Sess., 1 (1978).

1

'

The Mine Act contains other references to the Commission's role in making policy.
For example, in specifying the pro~edures for the Commission's SU~ sponte review of judges'
decisions, 30 U.S.C. § 823(d)(2)(B) states that the C9mmission may, in its discretion, grant
review of decisions that "may be contrary to law or Commis~ion .policy" .o r that present a "novel
question of policy." See Thunder Basin Coa.Z Co. v. Reich,. 510 U.S._, 1 i4 S.Ct. 771, 127
L. Ed. 2d 29, 38 n.9 (1994).
The regulation at issue involved the use of respira~or~ by employees who were exposed
to coke oven emissions exceeding certain limits. The employer was charged With failing to
assure that employees were supplied with properly fitting respirators, thereby exposing them to
impermissible emission levels. The Occupational Safety and Health Review Commission
("OSHRC") vacated the citation, holding that assurance of a properly fitting respirator was not
required by the regulation cited as the basis for liability but by another regulation. 499 U.S. at
148-49.
2

3

No policy jurisdiction comparable to that granted to this Commission was expressly
granted to OSHRC. Drummond Co., 14 FMSHRC 661, 674-75 & n.15 (May 1992).

1330

The Commission, by a majority of three Commissioners, adopted its policy of subtracting
unemployment compensation from back pay awards in Meek v. Essroc Corp., l 5 FMSHRC 606,
616-18 (April 1993).4 The Secretary was not a party to that case, either before the administrative
law judge or before the Commission on review. Thus, even if Wamsley were correct as to
deference, the Secretary had not presented the Commission with a position or interpretation to
which it might defer. Nor was it apparent from other Commission cases dealing with back pay
awards that the Secretary had established any position on the deduction issue. See, e.g., id. at
618 n.12, citing Secretary ofLabor on behalfofNantz v. Nally & Hamilton Enterprises, Inc., 15
FMSHRC 237, 241(February1993) (ALJ); Ross v. Shamrock Coal Co., 15 FMSHRC 972 (June
1993) (complaint filed under section 105(c)(3)). Indeed, in Nantz, the Secretary stipulated that
whether or not unemployment compensation should be deducted from a miner's back pay award
was within the discretion of the presiding judge. Nantz, 15 FMSHRC at 241. Similarly, when
the Commission extended its policy of reimbursing discriminatees for expenses reasonably
incurred in pursuing their claims, to include wages lost due to attendance at deposition and
hearing (Secretary ofLabor on behalfofCarroll Johnson v. Jim Walter Resources, Inc., 18
FMSHRC 552, 560-61 (April 1996)), the Secretary had taken no position on this issue of
remedial reiief. Tht( Commission in Carroll Johnson agreed with the argument of the intervenor,
United Mine Workets of America.
Congress clearly assigned the Commission responsibility in discrimination cases to grant
"such relief as it deems appropriate." 30 U.S.C. § 815(c)(3). That responsibility does not allow
the Commission to abandon its statutory interpretations adopted in the course of its adjudications
in order to defer to the Secretary when he chooses to offer an interpretation. 5

4

The Commission concluded in Meek that it had the authority under the Mine Act's
remedial scheme "to adopt an appropriate policy concerning the deduction of unemployment
compensation," Meek, 15 FMSHRC at 616, and that such deduction "is a reasonable and sound
policy that fully effectuates the Mine Act's goal of making whole miners who have been
wrongfully discharged in violation of the Act," id. at 618.

s The Mine Act's legislative history states, "the Secretary's interpretations of the law and
regulations shall be given weight by both the Commission and the courts. " Leg. Hist. at 63 7.
This general admonition, however, does not overcome the statutory provisions of the Mine Act
and the more specific legislative history. Nor can I agree with the Fourth Circuit that the Mine
Act so severely limits the Commission's review authority that it cannot decide which of two
statutory interpretations is "correct" but simply must adopt the Secretary's if his interpretation is
"reasonable." Wamsley, 80 F.3d at 115.

1331

B.

Reversal of Precedent

The Commission's rule of deducting un~mployment compensation. from back pay
awards, adopted in Meek, 15 FMSHRC at 616-18, was reaffirmed in Ross, 15 FMSHRC at 976- .
77, and Secretary of Labor on behalfofNantz v. Nally & Hamilton Enterprises, Inc.~ 16
FMSHRC 2208, 22 16-20 (November 1994). A majority of two here overrules the Commission's
precedent because they are "persuaded by the rationale of the dissents in Meek and Nantz." Slip
op. at 11, citations omitted. Commissioners Marks and Riley change the law according to their
policy preferences, placing little weight on the Commission's.prior holdings.
In the past, membership changes generally occurred at the Commission without major
disruption to the decisional process or disturbance of earlier holdings. Thus, the Commission
built a sound and stable body of law. When the Commission changed its law, it did so for sound
reasons such as rulings made by the Supreme Court. RBK Construe.lion, Inc., 15 FMSHRC
2099, 2101 (October 19.93) (Secretary's authority to vacate citations is um~viewable based on
Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3 (1985)).
On the merits of the issue, I would reaffirm !vfeek. I note, moreover, that it is likely the
state unemployment fund will require Mr. Poddey to repay to it the amount of unemployment
compensation that is restored to him by this decision. See Meek, 15 FMSHRC at 617 n. l 0.

,·

Arlene Holen, Commissioner

.,

1332
,.

·.

Commissioner Marks, concurring in part and dissenting in part:
I concur with my colleagues in the disposition of the negligence criterion.
With respect to the gravity criterion, Commissioners Holen and Riley have again rejected
the Secretary's call for Commission recognition that violations of section 105(c) serve to chill
miners' future invocation of protected activities because of a fear of similar adverse action. I
dissent for the same reasons expressed in my dissent in Secretary ofLabor on behalfof Carroll
Johnson v.. Jim Walter Resources, Inc., 18 FMSHRC 552, 563 (April 1996). I have concluded
that a presumption of a chilling effect should be made in every instance of a section 105(c)
violation.
With respect to the previous history criterion, I concur with the majority opinion, except
that I do not join Commissioners Holen and Riley in their rejection of the Secretary's argument
that the judge failed to consider the seriousness of past violations. What is the effect of their
ruling? Are our judges now relegated to merely counting the number of previous violations with
no consideration given to the circumstances surrounding the past violations? Do my colleagues
conclude that all violations are fungible? Certainly no one could dispute that a previous history
of ten roof control violations resulting in injury and loss of life is far more significant than a
previous history of twenty roof control violations that arose because specific plan provisions
were not followed, e.g., bolting pattern deficiencies that posed non-S&S risks. Their lapse of
judgement is serious. It is clearly relevant and most important for the trial judge to be made
aware of and to consider, not only the quantity of past instances of violation, but also any
circumstances that may suggest that such past violations constituted serious health or safety
threats to miners.
I am in agreement with the majority disposition regarding the unemployment
compensation issue. However, because of the views espoused by Commissioner Holen and the
notation of Commissioner Riley, lam compelled to set forth the following to ensure that the
Commission's institutional integrity be maintained.
Both of my colleagues have an apparent difficulty·embracing the conceprthat this
Commission has the obligation to defer to the Secretary's reasonable statutory interpretations as
enunciated by the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Notwithstanding Commissioner Holen's e~pression of deep
consternation, stemming from her perception that the majority in this case fails to adhere to·the
"Commission's established law" (by rejecting her policy choice to require a set off of
unemployment compensation from back pay awards made under section 105(c) of the Act),
Commissioner Holen, herself, fails to adhere to controlling Supreme Court precedent. Nowhere

1333

f•

in her concurring opinion is the Chevron case considered or even cited for this pwpose! 1 Yet
that case, and its mandate to appellate courts to defer to agency interpretations of statutory
provisions squarely applies to this case.
By my colleagues' failure to apply Chevron, one could conclude that Chevron bas been
deleted from our jurisprudence. However that's not the case and to be sure there is no
misunderstanding, I submit the following which I suggest provides unequivocal direction to this
Commission in the disposition of this issue!
When a court reviews an agency's construction of the statute which
it administers, it is confronted with two questions. First, always, is the
question whether Congress has directly spoken to the precise question at
issue. If the intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court determines Congress
has not directly addressed the precise question at issue, the court does not
simply impose its own construction on the statute, as would be
necessary in the absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is based on a
permissible construction of the statute. ([footnote] The court need not
conclude that the agency construction was the only one it permissibly
could have adopted to uphold the construction, or even the reading
the court would have reached if the question initially had arisen in a
judicial proceeding.)
' The power of an administ.rative agency to administer a
congressionally created ... program necessarily requires the
formulation of policy and the making of rules to fill any gap left,
implicitly or explicitly, by Congress.' Morton v. Ruiz, 415 U.S.
199, 231 (1974). If Congress has explicitly left a gap for the
agency to fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute by regulation.

1

However, in her concurring opinion Commission Holen does cite Chevron in
connection with her conclusion that the intent of Congress, regarding the meaning of sections
105(c)(2) and (3) of the Act is clear and unambiguous. This, however, is curious in view ofthe
fact that b9th majority opinions in Meek and Nantz were grounded only on Commissioner
Holen's policy preferences after concluding that the Act is silent on the issue of unemployment
compensation. Meek v. Essroc Corp. , 15 FMSHRC 606~ 616 (April 1993); Secretary ofLabor
on behalfof Nantz v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208, 2216 (November
1994). See also infra n.4.

1334

l

I

Such legislative regulations are given controlling weight unless
they are arbitrary, capricious, or manifestly contrary to the statute.
Sometimes the legislative delegation to an agency on a particular
question is implicit rather than explicit. In such a case, a court may
not substitute its own construction of a statutory provision for a
reasonable interpretation made by the administrator of an agency.
We have long recognized that considerable weight should
be accorded to an executive department's construction of a
statutory scheme it is entrusted to administer, and the principle of
deferenc.e to administrative interpretations
'has been consistently followed by this Court
whenever decision as to the meaning or reach of a
sta~te has involved reconciling conflicting policies,
and a full understanding of the force of the statutory
policy in the given situation has depended upon
more than ordinary knowledge respecting the
~atters subjected to agency regulations.'

' ... If this choice represents a reasonable
accommodation of conflicting policies that were
committed to the agency's care by the statute, we
should not disturb it unless it appears from the
statute or its legislative history that the
accommodation is not one that Congress would
have sanctioned.'
Chevron, 467 U.S. at 842-45 (footnotes and citations omitted, emphasis supplied). Accord,
Smiley v. Citibank, 517 U.S._, 116 S.Ct. 1730, 135 L. Ed. 2d 25, 31 (1996), citing Chevron,
467 U.S. at 843-44 ("We accord deference to agencies under Chevron ... because of a
presumption that Congress, when it left ambiguity in a statute meant for implementation by an
agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and
desired the agency (rather than the courts) to possess whatever degree of discretion the ·ambiguity
allows.").
Notwithstanding the foregoing, Commissioner Holen unsuccessfully attempts to
demonstrate that the Commission has controlling policy authority in "directing relief in
discrimination cases." Slip op. at 15 (Commissioner Holen, concurring). Support for her position
is based on the fact that Congress provided the miners with a private right under section
105(c)(3 ), independent of the Secretary, if the Secretary finds no violation occurred.
Commissioner Holen's reliance on that provision of the Act for her contention is woefully off the
mark.

1335

In authorizing a private right of action to miners under section 105(c)(3), Congress was
clearly providing a tangible means by which miners could obtain that which Congress intended -that access to all relief necessary to make the miner whole be assured. 2 Commissioner Holen' s
position in this case, and in the two Commission decisions being overruled3 today, only frustrate
that Congressional intention.
Last, but by no means least, Commissioner Holen's invective suggesting that my position
on this issue (to not set off unemployment compensation received by the miner from back pay
awards) is based merely on superficial "policy preferences" is astonishing! Slip op. at 18.
(Commissioner Holen, concurring). The Commission's majority decisions in Meek and Nantz
admittedly relied on the policy preferences of Commissioner Holen. 4 However, by some process

2

It is the Committee's intention that the Secretary propose, and that
the Commission require, all relief that is necessary to make the
complaining party whole and to remove the deleterious effects of the
discriminatory conduct including, but not limited to reinstatement with full
seniority rights, back-pay with interest, and recompense for any special
damages sustained as a result of the discrimination. The special relief is
only illustrative. Thus, for example, where appropriate, the Commission
should issue broad cease and desist orders and include requirements for
the posting of notices by the operator.

S. Rep. No.181, 95th Cong., 1st Sess. 37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal Mine
Safety and Health Act of 1977, at 625 ( 1978).
3

Meek v. Essroc Corp., 15 FMSHRC 606 (April 1993); Secretary ofLabor on behalfof
Nantz v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208 (November 1994).
4

"[W]e conclude that deducting unemployment compensation from a backpay award is a
reasonable and sound~ that fully effectuates the Mine Act's goal .... " Meek, 15 FMSHRC
at 618 (emphasis supplied). "The Commission ... now adopts a policy for its administrative law
judges, in order to ensure equality of treatment ...." Id. (emphasis supplied). "The
Commission recently decided ... that, as a matter of a~ency ;policy, unemployment
compensation ... should be deducted in detennining backpay awards." Ross v. Shamrock Coal
Co., 15 FMSHRC 972, 976 (June 1993) (emphasis supplied). "[T]he Commission determined
[in Meek] that a policy of deducting unemployment benefits comports with the Mine Act's goal
of making the miners whole. It ado.pted this policy to be followed by its judges." Nantz, 16
FMSHRC at 2216 (citations omitted, emphasis supplied). "The Commission, by a majority of
three Commissioners, adcwted its policy of subtracting unemployment compensation from back
pay awards in Meek v. Essroc Corp . . .." Slip op. at 17 (Commissioner Holen, concurring)
(emphasis supplied).

1336

known only to Commissioner Holen, those ill chosen policy choices, that flagrantly ignored the
vast preponderance of federal case law, are apparently believed by her to have become ensconced
into the "Commission's established law," that should forever be held inviolate! Nonsense.
For the reasons clearly and convincingly set forth in former Commissioner Backley's
dissent in Meek and for the same reasons amplified in the Nantz dissent, an opinion I am pleased
to have signed, I continue to conclude that unemployment compensation received by the miner
should not be set off from back pay awards.

\

Marc Lincoln Marks, Commissioner

1337

Distribution
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Paul 0. Clay, Jr., Esq.
Laurel Creek Road
P.O. Box 746
Fayettesville, WV 25840
Administrative Law Judge Authur Amchan
Federal Mine Safety and Health Review Commission
2 Skyline, l 0th Floor
5203 Leesburg Pike
Falls Church, VA 22041

1338

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

August 7, 1996

DAY BRANCH COAL COMPANY, INC.
and BOBBY JOE HENSLEY

v.

Docket Nos. KENT 94-1077-R
through
KENT 94-1190-R

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

Before: Jordan, Chairman; Holen, Marks and Riley, Commissioners
ORDER
BY THE COMMISSION:
These contest proceedings arise under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On August 30, 1994, the Secretary of Labor filed
an unopposed motion to hold the contest cases in abeyance pending the issuance of proposed
civil penalties. Administrative Law Judge Roy J. Maurer granted the motion on October 7, 1994.
On.December 5, 1994, the Secretary filed an unopposed request for stay of proceedings. This
was based on the request of the United States Attorney for the Eastern District of Kentucky, who
asked that the civil litigation be held in abeyance during the pendency of potential criminal
proceedings involving individuals at the mine.
On June 19, 1996, the Secretary filed a motion to dismiss the notices of contest, asserting
that the operator did not file notices of contest of the proposed penalties. The Secretary
contended that proposals for assessment of civil penalties regarding the above-captioned citations
were made on January 17, and September 17, 1995. On June 27, 1996, the judge issued an order
lifting the stay and di~missing the cases.
On July 2, 1996, Day Branch Coal Company and Bobby Hensley (collectively
"operators") filed with the administrative law judge a Motion to Reconsider and Vacate Order
Entered June 27, 1996 ("Mot. to Reconsider"). The operators subsequently filed a petition for
discretionary review on August 2, 1996. Counsel for operators contends that he did not contest
penalties filed in these proceedings because he never received notice that penalties had been
assessed. PDR at 1-2; Mot. to Reconsider at 1. Indeed, as recently as February 5, 1996, an

1339

attorney in the Secretary's Office of the Solicitor represented to the judge that the Secretary had
not yet assessed civil money penalties. Letter from Malecki to Judge Maurer of2/5/96. Counsel
for operators also states that, pursuant to 29 C.F.R. §§ 2700.8 and 2700.10, the time to respond to
the Secretary's June 19 motion had not expired when the judge issued his order on June 27, ·
1996. Mot . to Reconsider at 2. On July 16, 1996, the Secretary filed his opposition to the
motion to reconsider.
The Commission's procedural rules, codified at Part 2700 of29 C.F.R., state that an
opposition to a motion may be filed within ten days after service upon the party. 29 C.F.R.
§ 2700.10(c). Furthermore, the rules permit an additional five days for filing a response when
the initial document was served by mail. 29 C.F.R. § 2700.8. The Secretary served his motion
by mail on June 19, 1996. S. Certificate of Service to Motion to Dismiss. By issuing his order
on June 27, the judge did not allow operators the time permitted to respond under the
Commission's rules.
Accordingly, we grant the operators' petition for discretionary review, vacate the
dismissal order, and remand this matter to the judge for further appropriate proceedings.
Operators' motion for reconsideration, which requests the same relief as its petition, is moot.

M£1A+~~

liLA

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

. Riley, Commissioner

1340

Distribution

Robert I. Cusick, Esq.
Wyatt, Tarrant & Combs
2600 Citizens Plaza
Louisville, KY 40202
Mark Malecki, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 516
Arlington, VA 22203
Administrative Law Judge Roy Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1341

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

August 19, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. CENT 92-329
CENT93-272

v.
BHP MINERALS INTERNATIONAL INC.

BEFORE: Jordan, Chainnan; Holen, Marks and Riley, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994), involves a citation issued to BHP Minerals International
Inc. ("BHP") alleging a significant and substantial ("S&S") 1 violation of 30 C.F.R. § 77.506
(1995). 2 Administrative Law Judge Arthur Amchan found that BHP had not violated the
standard. 16 FMSHRC 1177 (May 1994) (ALJ). For the reasons that follow, we reverse and
remand.

1

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.

§ 814(d)(l), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a ... mine safety or health hazard ...."
2

30 C.F.R. § 77.506, entitled, "Electric equipment and circuits; overload and shortcircuit protection," provides:
Automatic circuit-breaking devices or fuses of the correct
type and capacity shall be installed so as to protect all electric
equipment and circuits against short circuit and overloads.

1342

I.
Factual and Procedural Back~round
BHP operates the Navajo mine, a surface coal mine in northwestern New Mexico. 16
FMSHRC at 1177. On April 28, 1992, during an electrical inspection of the mine, Inspector
David Head, with the Department of Labor's Mine Safety and Health Administration ("MSHA"),
examined a high-wall drill. Id. at 1179; Tr. 55, 61. The circuit for the motor was protected by a
circuit breaker that provided both instantaneous and thermal overcurrent protection. Tr. 91-92.
The instantaneous breaker had a "low" and "high" setting with eight intermediate settings. Tr.
64, 74. The trip unit on the instantaneous breaker provided settings that ranged from 1800 to
6000 amperes ("amps"). Tr. 74. The breaker had been set on 6000, the highest setting. Tr. 64.
Based upon calculations performed in accordance with the National Electric Code
("NEC"), Inspector Head determined that adequate instantaneous overcurrent protection had not
been provided for the motor. Tr. 65-67. The inspector stated that section 430-52 of the NEC
provides that an instantaneous breaker must be set at the lowest setting capable of carrying the
"normal starting load" of the motor. Tr. 65, 67. This setting is calculated. by multiplying the
full-load current ofthe,motor by 700%. Tr. 65. If the motor cannot operate at that level, the
setting may be increased only as necessary by increments, but in no event shall it exceed 1300%
of the motor's full-load current. 3 16 FMSHRC at 1179; Tr. 65-67. From the nameplate of the
drill motor, the inspector determined that the full-load current of the motor was 400 amps. 16
FMSHRC at 1180. He then calculated that 1300% of the full-load current was 5200 amps (400
multiplied by 1300%). Because the breaker had been set on high, or at 6000 amps, he concluded
that it had been set in excess of 1300% of the full-load current of the motor (5200 amps). Tr.
65-67, 81.
.
The inspector explained that an instantaneous breaker automatically trips when there is a
short circuit and that, if it were set too high, the breaker would not stop electrical current until
dangerous amounts had flowed to the motor. Tr. 66, 68-70. A delay of only fractions of a
second in tripping the breaker would increase miners' exposure to the hazards of fir.e,, electrical
burns or shock. 16 FMSHRC at 1179. Accordingly, Inspector Head issued a citation alleging an
S&S violation of section 77 .506. Id. The citation was terminated after ihe operator adjusted the
breaker to the "_low" setting. Tr. 71. BHP challenged the citation and the matter.proceeded to
hearing before Judge Arnchan.
The judge determined that the instantaneous circuit breaker had been set in excess of
1300% of the full-load current of the motor. 16 FMSHRC at 1180. In reaching this
determination, the judge credited testimony that the full-load current was approximately 438
amps and that the breaker would stop the flow of electricity to the motor at 6000 amps at the high

3

Section 430-52 of the NEC was not admitted as an exhibit into the official record.

1343

setting.4 Id. at 1179, 1180. Nonetheless, the judge found that the standard did not provide the
operator with sufficient notice of its requirements and that a "reasonably prudent operator's
electrician" would not have recognized that the circuit breaker had been set in ·violation of the
standard or the NEC. Id. at 1180-81. He explained that neither section 77.506 nor the NEC was
clear in specifying the allowable settings for BHP's circuit breaker. Id. at 1180. Accordingly,
the judge vacated the citation. Id. at 1184.
The Secretary filed a petition for discretionary review challenging the judge's
determination, which the Commission granted.
II.

Disposition
The Secretary argues that the judge erred in finding that BHP did not violate section
77.506 and in holding that application of the standard and NEC were not clear. PDR at 3-5.5
The Secretary notes that the judge found that the instantaneous circuit breaker setting exceeded
1300% of the full-load current of the motor and that the parties agreed on the meaning of the
standard and the applicapility of the NEC. Id at 5. BHP responds that the judge correctly
determined that the standard failed to give adequate notice of its requirements, as supported by
the witnesses' differing testimony on whether the instantaneous breaker had been set beyond the
limit allowed by the NEC. BHP Br. at 3-5. BHP asserts that it never agreed that a setting in
excess of 1300% amounted to a violation of section 77.506. It contends it presented testimony
that the setting, which was below 1300%, did not amount to a violation. Id. at 6. BHP explains
that neither the NEC nor the regulation set forth a particular setting for the breaker. Id. In
· addition, neither the NEC nor the regulation specify that a setting exceeding 1300% will fail to
"protect all electrical equipment and circuits [against] short circuits and overloads." Id., quoting
30 C.F.R. § 77.506. It contends that, regardless of the setting of the instantaneous breaker,
overcurrent protection was provided by the thermal breaker. Id. at 7.
Applicability of the NEC is undisputed in determining compliance with section 77.506.
Title 30 C.F.R. § 77.506-1, entitled, "Electric equipment and circuits; overload and short circuit
protection; minimum requirements," provides that "[d]evices providing either short circuit
protection or protection against overload shall conform to the minimum requirements for
protection of electric circuits and equipment of the National Electric Code, 1968." In addition, as

4

Under the judge's findings, 1300% of the full-load current of the motor is 5694 amps
(438 multiplied by 1300%). 16 FMSHRC at 1180. Because the judge found that the breaker had
been set at 6000 amps, it had been set in excess of 1300% of the motor's full-load current.
5

Pursuant to Commission Procedural Rule 75(a)(l), 29 C.F.R. § 2700.75(a)(l) (1995),
the Secretary designated his petition for discretionary review as his brief.

1344

the judge found, the "parties agree that the criteria for complying with section 77.506 are found
in the National Electric Code (NEC) and, more specifically, NEC section 430-52." 16 FMSHRC
at 1179.
Witnesses had differing opinions on whether the breaker had been set in excess of 1300%
of the full-load current of the drill motor in violation of section 430-52 of the NEC. Lynn Byers,
BHP' s chief mechanic, testified that the full-load current of the motor was 438 amps, that the
breaker would trip at 5400 amps and that, accordingly, the breaker had been set at 1232% of the
full-load current of the motor. 16 FMSHRC at 1180; Tr. 113. In contrast, the Secretary's
witnesses testified that the full-load current was 400 amps, that the breaker would trip at 6000
amps, and that the breaker had been set in excess of 1300%. 16 FMSHRC at 1180. The judge
found that the full-load current was approximately 438 amps and that the breaker was set at 6000
amps. Id Neither party disputes these findings. See BHP Br. at 5; PDR at 4-5. Therefore,
under the judge's findings, the instantaneous breaker had been set in excess of 1300% of the fullload current of the drill's motor (which equaled a ceiling of 5694 amps) in violation of the
requirements of the NEC and section 77.506.
Although section 77.506 and the NEC do not specify the exact setting for the
instantaneous breaker and witnesses disagreed on whether the breaker setting exceeded that
allowed by the NEC, we reject BHP's argument that section 77.506 did not provide it with
adequate notice that BHP had violated the regulation. When faced with a challenge that a
standard fails to provide adequate notice of prohibited or required conduct, the Commission has
applied an objective standard, i.e., the reasonably prudent person test. The Commission has
explained that the appropriate test is whether a reasonably prudent person familiar with the ·
mining industry and the protective purposes of the standard would have recognized the specific
prohibition or requirement of the standard. Ideal Cement Co., 12 FMSHRC 2409, 2416
(November 1990). In order "to afford adequate notice and pass constitutional muster, a
mandatory safety standard cannot be 'so incomplete, vague, indefinite or uncertain that [persons]
of common intelligence must necessarily guess at its meaning and differ as to its application.'"
Id, quoting Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (December 1982) (citations
omitted). The Commission has recognized that the various factors that bear upon what a
reasonable person would do include accepted safety standards in the field, considerations unique
to the mining industry, and the circumstances at the operator's mine. See U.S. Steel Corp., 5
FMSHRC 3, 5 (January 1983).
Inspector Head and the Secretary's expert witness, Terrence Dinkel, testified that the
NEC requires an instantaneous circuit breaker to be set at 700% of its full-load current and then
to have that setting increased only as necessary to start the motor, but never exceeding the
1300% maximum limit. Tr. 74-75, 117-18. Inspector Head estimated that 98% of all equipment
should be able to start at 700% of the full-load current. Tr. 79. Dinkel also stated that 700% is
almost always a sufficient setting to start a motor and that the higher settings are reserved for rare
cases involving high-torque motors thai·cannot start at lower settings. Tr. 118-19. Byers, BHP's

1345

chief mechanic, acknowledged that "[t]he code [NEC] wants to give you what you need, but they
don't want to give you anything more." Tr. 112.
BHP's instantaneous breaker had been set at the highest setting. Tr. 64. There was no
indication in the operator's records of the reasons for that setting or whether lower settings had
been tried. Tr. 90. When the breaker was placed on the lowest setting, or 1800 amps, in order to
abate the citation, the motor was able to function. Tr. 71. In light of the testimony of all
witnesses that the breaker was required to be placed on the lowest possible setting to start the
motor and unrebutted testimony that the higher settings are reserved only for rare cases involving
special equipment that cannot start at lower settings, we conclude that a reasonably prudent
person would have recognized that placing the instantaneous breaker on the highest setting
would not provide adequate overcurrent protection as required by section 77.506.
We find unpersuasive BHP's argument that, regardless of the setting of the instantaneous
breaker, BHP did not violate section 77.506 because overcurrent protection was also provided by
the thermal breaker. BHP Br. at 7. It is not clear from the record that the instantaneous breaker
and thermal breaker provided identical protection. See Tr. 106-07. In any event, even if their
protection were identical, section 77.506 does not provide that automatic circuit-breaking devices
need not adequately p~otect against short circuits and overloads if a functioning backup system
exists. Rather, the standard's broad language requires that any automatic circuit-breaking device
must protect against short circuits and overloads. Thus, BHP was required to properly set the
instantaneous breaker independent of its requirement to properly set the thermal breaker. 6

6

Evidence that the thermal breaker also provided overcurrent protection would be
relevant to the determination of whether BHP's violation was S&S.

1346

III.
Conclusion
For the foregoing reasons, we reverse the judge's determination that BHP did not violate
section 77.506. We remand for consideration of whether tbe violation was S&S and for the
assessment of a civil penalty.

7ffi ~~
M~~rdan,
cUairman
Arlene Holen, Commissioner

\

~£L-L,
Marc Lincoln Marks, Commissioner

~c.

1347

Distribution

Manuel R. Lopez, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
S.J. Berkelmans, Esq.
BHP Minerals International Inc.
550 California St.
San Francisco, CA 94104
Administrative Law Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1348

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

August 22, 1996

SECRETARY OF LABOR,
on behalf of
RONALD A. MARKOVICH
V.

Docket No. LAKE 96-139-DM

MINNESOTA ORE OPERATIONS,
USX CORPORATION

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

DECISION

BY THE COMMISSION:

In this discrimination proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et. seq. (1994) ("Mine Act" ), the Secretary of Labor, on behalf of Ronald A.
Markovich, timely filed a petition for review of Administrative Law Judge Arthur J. Amchan's July
26, 1996, order denying complainant's application for temporary reinstatement pursuant to
Commission Procedural Rule 45(f), 29 C.F.R § 2700.45(f). Minnesota Ore Operations, USX
Corporation ("USX") timely filed its opposition to the petition. Upon consideration of the petition
and USX's opposition to it, we grant the petition for review. For reasons that follow the judge's
decision stands as if affirmed.

On September 26, 1995, Ronald A Markovich was suspended with the intent to be
discharged. He had been employed by USX as a millwright since 1969.
On October 12, 1995, Markovich timely filed a complaint of illegal discharge with the
Secretary of Labor pursuant to section 105(c)(2) of the Mine Act. 30 U.S.C. § 815 (c)(2).
Following an investigation, the Secretary determined that the complaint of illegal discharge filed
by Markovich was not frivolo.us. On June 27, 1996, the Secretary filed an application for
temporary reinstatement_with the Commission. On July 18, 1996, an evidentiary hearing on the
application for temporary reinstatement was held. On July 26, 1996, the judge issued an order
denying complainant's application for reinstatement.

1349

The Secretary alleges that Markovich was illegally discharged from his job and that USX's
asserted basis for discharge, i.e., Markovich's unprotected activity of removing and/or tampering
with "No Smoking" signs in a company elevator was a pretext The SecretarY asserts that the
suspension and discharge of Markovich was in retaliation for his protected activity as a miners'
representative and that, under the circumstances of this case, the sanction for his unprotected
activity was disparate. On the very same day that Markovich was suspended, September 26, 1995,
he had served as a miners' representative accompanying a MSHA inspector who issued 22
citations, 12 of which were S&S. USX maintains that the suspension and discharge of Markovich
was based solely on his unprotected activity and that the treatment of Markovich vis-a-vis other
miners who also engaged in unprotected activity was fair and rationally applied.
Commissioner Holen and Commissioner Riley would affirm the judge's ruling. Chairman
Jordan and Commissioner Marks would reverse the judge's ruling. Under Pennsylvania Electric
Co. , 12 FMSHRC 1562, 1563-65 (August 1990), a.ff'd on other grounds, 969 F.2d 1501 (3rd Cir.
1992) ( "Penelec" ), the effect of the split decision is to allow the judge's decision to stand as if
affirmed.
The opinions of the Commissioners follow.
Commissioners Holen and Riley, affirming the decision of the administrative law judge:
The Secretary has filed a petition appealing the judge's denial of temporary reinstatement
of a miner who, the Secretary concedes, engaged in a series of insidious acts of vandalism. See
Dec. at 2, 9; Pet. at 12.
The Mine Act at 30 U.S.C. § 815(c)(2) instructs the Secretary to file an application for
temporary reinstatement of a miner when he finds that the underlying discrimination complaint has
not been "frivolously brought." 1 The judge cited the correct legal test in reviewing the
Secretary's application. He cited the decision of the Eleventh Circuit Court of Appeals, in which
that court concluded the standard for review of an application for reinstatement was a "reasonable
cause to believe standard." Dec. at 6, citing Jim Walter Resources, Inc. v. FMSHRC, 920 F .2d
73 8, 74 7-48 & nn. 8-10. The "reasonable cause to believe" standard was also used by the judge
and approved by the Commission when the Jim Walter Resources case was before it. Secretary
oflabor on behalfofPrice v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August
1987). To review the Secretary's application under any less rigorous standard would raise due
process concerns (see Jim Walter Resources, 920 F .2d at 747-48) and would relegate the

1

The legislative history sheds no light on the standard for the Commission's granting of
such Si temporary reinstatement order. It only instructs the Secretary to seek temporary
reinstatement when a miner's complaint "appears to have merit." S. Rep. No. 181, 95th Cong., 1st
Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal Mine Safety and Health Act of
1977, at 624-25 (1978).

1350

Commission's role to rubber-stamping the Secretary's application.2
The judge also correctly applied the standard of review in this matter~ He concluded 1hat
the "[c]omplainant's claim of disparate treatment ... is simply without merit." Dec. at 9. The
Secretary acknowledges the complainant participated more frequently than any other miner·in
removing the no-smoking signs from the mine elevator--an act antithetical to complainant's
position as miners' safety representative. Pet. at 12. As the judge found, the complainant' s
offenses were of "a totally different order" than those of other rank-and-file miners, including one
miner whom USX discharged but who was reinstated following an arbitration decisiOn. Dec. at 9.
Additionally, USX discharged a foreman for engaging in fewer instances of the same misconduct.
Id. at 8. On this record, even viewing the facts most favorably to the Secretary's position, we find
no reasonable cause to believe that the complainant was the victim of disparate or discriminatory
treatment. Compare Jim Walter Resources, Inc., 9 FMSHRC at 1306. See also Secretary of
Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2512-13 (November
1981 ).
We note, moreover, that the complainant had been employed by USX for 26 years and
engaged openly in protected activity for 19 years as a miners' representative. Dec. at 1, 3, 7.
There is no indication as to why the complainant's role as miners' representative suddenly became
intolerable. Id. at 7-8 .. There was little evidence of animus or hostility caused by the
complainant's conununication with MSHA that allegedly gave rise to the retaliatory discharge.
Finally, USX' s initial determination to discipline the complainant, as well as the other employees
who removed the no-smoking signs, was made prior to its awareness of the complainant's role in
the MSHA inspection that is the basis for the Secretary's complaint. Id at 7 & n. l . Once a
determination has been made that discipline for a punishable offense is warranted, it is not the
Conunission's role to judge the appropriateness of the severity of that discipline, in the·absence of
disparate treatment. See also United Mine Workers ofAmerica on behalfof Rawe v. Peabody
Coal Co., .1FMSHRC1357, 1364 (September 1985), aff'd sub nom. Brock v. Peabody Coal Co.,
822 F.2d 1134 (D.C. Cir. 1987).

Arlene Holen, Conunissioner

2

The Secretary' s argument, that the Commission is to review the Secretary's application
based on whether it "appears" to have merit, confuses the standard under which the Secretary is to
determine whether to file an application with the standard under which the Commission is to
review that application. Pet. at 6. Seen. 1, supra. Neitzke v. Williams, 490 U.S. 319 (1989), cited
by the Secretary, Pet. at 6, is not applicable in establishing an appropriate standard· of review of
reinstatement applications. That case involved prisoner in Jonna papueris complaints.
·

1351

Chainnan Jordan and Commissioner Marks reversing the decision of the judge.
We conclude that the judge improperly applied the test for determining whether the
complaint of discrimination is frivolous. The only issue before the judge was whether
Markovich's complaint of illegal discharge was frivolously brought. In ruling on that issue, we
find that the judge required the Secretary to effectively establish that an illegal discharge occurred.
We have consistently stated in our decisions on review of temporary reinstatement
proceedings that "[t]he scope of a temporary reinstatement hearing is narrow, being limited to a
detennination by the Judge as to whether a miner's discrimination complaint is frivolously
brought." Secretary_oflaboron behalfofPrice v. Jim Walter Resources, Inc., 9 FMSHRC 1305,
1306 (August 1987), aff'd, Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d.738 (11th Cir.
1990). See Secretary ofLabor on behalfofPeters v. Thunder Basin Coal Co., 15 FMSHRC 2425,
2426 (December 1993); Secretary ofLabor on behalfof Wamsley v. Mutual Mining, Inc., 15
FMSHRC 1816, 1817(September1993); Secretary oflabor on behalfofBowlingv. Perry
Transport, Inc., 15 FMSHRC 196, 197 (February 1993). Moreover, as recited by the judge, the
Eleventh Circuit, in Jim Walter Resources concluded that "not frivolously brought" is essentially
equated with "reasonable cause to believe," "not insubstantial," and "not clearly without merit."
Dec. at 6, Citing 920 F.2d at 747 & n.9. In that decision the Court also indicated that "[t]he
legislative history of th~ Act defines the 'not frivolously brought standard' as whether a miner's
'complaint appears to have merit.'" Id. at 74 7.
Although the judge set forth the pertinent legal standard by which this proceeding was to
be evaluated, he failed to apply that standard. But for the caption and textual references to
"temporary reinstatement," the judge's order is not unlike a decision on the merits of a complaint
of discrimination. The judge made all the necessary findings and conclusions to dispose of the
matter in its entirety. Indeed, the judge ultimately concluded that "there is no reason on the
record before me to conclude that Respondent did not discharge Mr. Markovich for reasons other
than those it articulated." Dec. at 9. This effort by the judge would have been entirely appropriate
ifthe complaint of illegal discharge was before the judge. It was not. The judge was merely
required to determine ifthe complaint was frivolous. This should not have been difficult to do.
The uncontroverted evidence established that the operator knew that Markovich had engaged in
protected activity at the time it took the adverse action of discharging him. These events occurred
within a short time of each other. We believe that the Secretary exceeded his burden of
demonstrating that the complaint was not frivolous.
In reaching his conclusion that the complaint was frivolous, the judge engaged in an
indepth analysis of the evidence that manifestly demonstrates that his consideration of the
evidence went well beyond the scope of whether there was "reason to believe," i.e., whether the
complaint was frivolously brought. For example, the judge conceded that although "[i]t is possible
that Respondent was irritated enough by the September 26 citations that it decided to fire
Markovich rather than merely suspend him," the evidence was too speculative to support the
theory. Id. We find that the judge, in so concluding, held the Secretary to an evidentiary burden
that is not required for the purpose of establishing that the complaint is not frivolous. By the
judge's own words, he effectively agreed that the Secretary had established that a colorable theory
of retaliatory animus existed. That should have been enough to demonstrate that the claim was not
frivolous. The Secretary should not, at this juncture, be expected to present that which is

1352

necessary to prove that a violation occurred, or to prove that retaliatory animus existed. The
temporary reinstatement hearing is supposed to "determine[e] whether the e_vidence mustered by
the miners to date established that their complaints are nonfrivolous, not whether there is sufficient
evidence of discrimination to justify permanent reinstatement." 920 F.2d at 744. (emphasis
added). However, that was, in reality, the standard imposed upon the Secretary by the judge. As
such we conclude that the judge committed reversible error.3
·
Accordingly, we conclude that the Secretary has demonstrated that the complaint is not
frivolous and that, therefore, an order of immediate temporary reinstatement should issue.

Marc Lincoln Marks, Commissioner

3

As stated previously, the only issue before us is whether Markovich' s complaint was

frivolously bought. We intimate no view as to the ultimate merits of this case.

1353

Distribution

Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Gary R. Kelly, Esq.
U.S. Steel Group, USX Corporation
USX Tower, Room 1580
600 Grant Street
Pittsburgh, PA 15219
Administrative Law Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1354

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

August 28 , 1996

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

Docket Nos. LAKE 94-55
LAKE94-79

AMAX COAL COMPANY

BEFORE: .Jordan, Chairman; Holen, Marks and Riley , Commissioners 1

DECISION
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. (1994) ("Mine Act" or "Act"), and involves four citations issued
by the Department of Labor's Mine Safety and Health Administration ("MSHA") to Amax Coal
Company ("Amax"), alleging violations of 30 C.F.R. § 75.400.2 Amax contested the citations
an~ the matter went to hearing before Administrative Law Judge Jerold Feldman. Judge
Feldman sustained the citations and determined that one violation was significant and substantial
("S&S"). 16 FMSHRC 1837, 1848 (August 1994) (ALJ). For the reasons set forth below, we
1

Commissioner Doyle participated in the consideration of this matter but resigned from
the Commission before its final disposition.
2

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

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

1355

affirm in result the judge's determination that Amax violated section 75.400, and we vacate the
judge' s S&S determination and remand for further proceedings.

I.
On September 22, 1993, Inspector Steven Miller issued Citation Nos. 4054082, 4054083,
and 4054084 to Amax, alleging violations of section 75.400 for accumulation of combustible
materials. The citations alleged that Amax allowed loose coal saturated with oil, float coal dust
and grease to accumulate on three pieces of diesel-powered equipment: two diesel scoops and a
diesel ram car.
On October 7, 1993, Inspector Michael Dean Rennie issued Citation No. 4054831 to
Amax, alleging a violation of section 75.400 for accumulation of combustible materials. The
citation alleged that Amax allowed loose coal and oil soaked loose coal to accumulate on its
continuous miner and that the alleged violation was S&S. At the time the citation was issued the
continuous miner was in permissible condition and was equipped with a fire suppression system.
16 FMSHRC at 1840.
At the hearing, Amax conceded that it violated section 75.400 in connection with the
continuous miner; however, it contended that the violation was not S&S. Id. at 1838. Noting
that the cited accumulations had existed for approximately two weeks, the judge found a
"positive correlation between the duration of a hazardous condition and the likelihood of an
event precipitated by that hazard." Id. at 1843. The judge held that an intervening incident, such
as a permissibility defect or a cable rupture, "could occur.which would create an ignition source
and cause combustion." Id at 1843. 3 The judge further concluded that the fire supp~ession
system on the continuous miner would not prevent a serious injury or death in the event of an
explosion. Id. The judge determined that the violation was S&S and assessed a penalty of$309.
Id.

In connection with accumulations on diesel-powered equipment, the judge found that
section 75.400 prohibits accumulations on diesel-powered equipment, affirmed the citations, as
modified by the parties' stipulation,4 and assessed a $100 civil penalty for each citation. Id at
1848.
The Commission granted Amax's petition for discretionary review, which challenged the
judge' s holding that the accumulation on the continuous miner was an S&S violation and that

3

The judge noted that his determination would have been different if the accumulation
had existed for only one or two shifts. 16 FMSHRC at 1843.
4

The parties stipulated that the accumulations on the diesel-powered equipment were not
S&S. 16 FMSHRC at 1848.

1356

Amax violated section 75.400 in connection with the accumulations of combustible materials on
three pieces of diesel-powered equipment.
II.
Citation No. 4054831
Amax contends on review that the judge failed to apply the proper test for determining
whether a violation is S&S. Specifically, citing US. Steel Mining Co., 6 FMSHRC 1834, 1836
(August 1984), Amax argues that the judge improperly couched his discussion of S&S in the
context of possibility, "could occur," rather than in the definitive, "will result," as required under
the third element of the formula set forth in Mathies Coal Co., 6 FMSHRC I, 3-4 (January
1984). 5 A. Br. at 24. Amax also argues that the judge's S&S determination is not supported by
substantial evidence. Id.
The Secretary argues that the judge applied the correct legal standard in concluding that
Amax's violation was S&S. S. Br. at 13. Conceding that the judge used the word "could"
instead of"will" in his recitation of the third element of the Mathies test, the Secretary asserts
that there is not a qualitative difference between these two words. Id. at 15. In support of this
contention, the Secretary cites section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l).6 In the

5

In Mathies, the Commission explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial ... , the Secretary of Labor
must prove: (I) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a measure of danger
to safety--contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.

6 FMSHRC at 3-4 (footnote omitted).
6

Section 104(d)(l} of the ·Mine Act provides in part:

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard and if
he also finds that, while the conditions created by such a
violation do riot cause imminent danger, such violation is of such
nature as could significantly and substantially contribute to the

.1357

Secretary's view, this section's use of the word "could" and the Commission's use ohhis word
in Mathies -- in which " the Commission used both 'could' and ' will' interchangeably" -demonstrates this point. Id. (citing Mathies, 6 FMSHRC at 3-4). The Secretary also asserts that
the judge's S&S determination is supported by substantial evidence because he reasonably
concluded that Amax allowed the extensive accumulations to remain unabated for two weeks and
there was no indication that, absent the inspector's intervention, it would have abated the
accumulation in the near future. Id. at 16-18. The Secretary argues that, based on the above
finding, the judge's conclusion that a permissibility defect or cable rupture was reasonably likely
to occur over time and under normal mining operations is supported by substantial evidence. Id.
at 18-19.
We agree with Amax that the judge erred in analyzing the third element of the Mathies
test based on whether an injury-causing event "could occur." "The third prong of the test for
S&S is whether there exists a reasonable likelihood that the hazard contributed to will (not could)
result in an injury or illness of a reasonably serious nature." Fort Scott Fertilizer-Cullor, Inc., 17
FMSHRC 1112, 1118 (July 1995) (citations omitted).
We also conclude that the judge erred in failing to consider relevant record evidence in
reaching his S&S determination.7 In determining that the Secretary satisfied the third Mathies
element, the judge discussed only the effect of the passage of time. He failed to discuss the
impact of other relevant evidence that: (1) the continuous miner was in permissible condition {Tr.
69, 114); (2) the electric cables on the continuous miner were insulated and did not produce any
heat (Tr. 136, 138); (3) the continuous miner's various motors and lights operated under the
maximum permitted temperature of 302 degrees Fahrenheit (Tr. 137-38, 145-46, 189-92); (4)
Amax's coal has an ignition temperature of over 470 degrees Centigrade (Tr. 188); (5) Ainax's

cause and effect of a coal or other mine safety or health hazard,
and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation
given to the operator under this Act.
7

The Com.mission is bound by the terms of the Mine Act to apply the substantial
evidence test when reviewing an administrative law judge's factual determinations. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I); Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994). That
standard of review requires that a fact finder weigh all probative record evidence and that a
reviewing body examine the fact finder's rationale in arriving at hi~ decision. Wyoming Fuel, 16
FMSHRC at 1627; see also, Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June
1994) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951)). A judge must
analyze and weigh the relevant testimony, make appropriate findings, and explain the reasons for
his decision. Wyoming Fuel, 16 FMSHRC at 1627; Mid-Continent, 16 FMSHRC at 1222 (citing
Anaconda Co., 3 FMSHRC 299, 299-300 (February 1981)).

1358

hydraulic oil has a flash point of 356 degrees Fahrenheit (Tr. 177); and (6) the continuous miner
is equipped with several dust control/suppression systems which keeps coal on the continuous
miner wet (Tr. 90-91, 119-20, 138, 144-147). 8
A finding that the passage of time increases the likelihood of an injury-producing event
cannot, standing alone, satisfy the requirements of either the substantial evidence test or the third
element of Mathies. Inasmuch as the judge based his determination solely on the passage oftime
and failed to analyze other record evidence, we conclude that his determination is not supported
by substantial evidence.
For the foregoing reasons, we vacate the judge's S&S determination in Citation No.
4054831 and remand for an analysis of that issue consistent with this opinion.9

III.
Citation Nos. 4054082. 4054083. and 4054084
Amax asserts that the judge erred in determining that section 75.400's prohibition against
accwnulations "in active workings, or on electric equipment therein" also prohibits
accumulations on diesel-powered equipment. A Br. at 4. Amax argues that section 75.400 does
not cover diesel-powered equipment and contends that the Secretary's efforts to enforce this
standard against diesel-powered equipment deprives it of due process. Id. at 9-10, 12.
The Secretary argues that the judge's finding that section 75.400 prohibits accumulations
on diesel-powered equipment is consistent with the Secretary's interpretation. S. Br. at 24-28.
He states that the term " in active workings" is broad enough to prohibit accumulations on dieselpowered equipment when such equipment is situated in active workings. Id at 28. The
Secretary asserts that his interpretation is reasonable and, thus, entitled to deference. Id at 25.
The Commissioners agree, in result, to affirm the judge's conclusion that the
accumulations on diesel-powered equipment located in active workings violated section 75.400,
but differ as to the rationale for that determination. The opinion of Chairman Jordan and
.
.
We reject Amax's contention that the judge erred in assigning no weight to evidence
that its redundant fire suppression system reduced the likelihood of serious injury. In Buck Creek
Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995), the court held that "safety measures in
place to deal with a fire does not mean that fires do not pose a serious safety risk to miners."

8

9

Commissioner Marks agrees that the judge failed to consider relevant evidence and that
therefore remand is necessary. However, for·reasons set forth in his concurring opinion in
United States Steel Mining Co., 18 FMSHRC 862, 868 (June 1996), he finds that remand for the
judge's consideration and application of the third Mathies prong is unnecessary.

1359

Commissioner Marks and that of Commissioner Holen and Commissioner Riley, setting forth
their separate views, follow.

Chairman Jordan and Commissioner Marks:
The legislative history of the Mine Act provides that "the Secretary's interpretations of
the law and regulations shall be given weight by both the Commission and the courts." S.
Rep. No. 181, 95th Cong., 1st Sess. 49 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 637 (1978). The Supreme Court has stated that the
promulgating agency's interpretation of its own regulation is "of controlling weight unless it is
plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945). The Court has emphasized that an agency is emphatically due this
respect when it interprets its own regulations. Ford Motor Credit Co. v. Milho//in, 444 U.S. 555,
566 (1980); Udall v. Tallman, 380 U.S. 1, 16-17 (1965); See also Secretary of Labor ex rel.
Bushnell v. Cannelton Industries, Inc., 867 F.2d 1432, 1433, 1435 (D.C. Cir. 1989).
Both the Secre~ry and Amax agree that the resolution of these citations hinge on the
interpretation of section 75.400. S. Br. at 25; A. Br. at 4. Specifically, the interpretive issue is
whether section 75.400's prohibition against accumulations "in active workings, or on electric
equipment therein" is broad enough to include diesel-powered equipment found in active
workings. The competing interpretation asserts that the term "or" restricts that prohibition to
places and electric-powered equipment only, excluding all other types of equipment from the
standard. Thus, the inquiry here is not whether the diesel-powered equipment itself is an active
working, but rather whether accumulations on diesel-powered equipment located in an active
working are prohibited under section 75.400. 1
Under the Secretary's interpretation of section 75.400, the phrase "in active workings" is
broad enough to prohibit accumulations on diesel-powered equipment when such equipment is in
active workings, i.e., where miners are normally required to ''travel or work." S. Br. at 28
(quoting section 304(a) of the Mine Act). The Secretary reasonably reads the standard
prohibiting accumulations in active workings to include both the relevant physical area of the
mine itself and all equipment located within it. As the Secretary points out, under a contrary
reading of the statute, an operator could comply by sweeping up accumulations on the floor of a

1

Jones & Laughlin Steel Corp., 5 FMSHRC 1209 (July 1983), rev'd on other grounds
sub nom. UMWA v. FMSHRC and Vista Mining Co., 731F.2d995 (D.C. Cir. 1984) (table), cited
by Amax, is inapposite. In Jones & Laughlin, the Commission held only that an unmanned
conveyor belt was not itselfan active working under 30 C.F.R. § 75.303(a) (1991) (redesignated
as 30 C.F.R. § 75.360 in 1992).

1360

mine (located in active workings) and putting them on ignition sources on the diesel equipment
located there. Such a reading of the standard can hardly be viewed as a reasonable one.
The Secretary interprets the phrase "or on electric equipment therein" as
nondisjunctive. According to the Secretary, it is intended to emphasize the standard's
prohibition against accumulations on electric-powered equipment but should not be read so
narrowly that it allows accumulations on any other type of "equipment." S . Br. at 29-30.
Rather, according to the Secretary, it was used to make clear that the term preceding it ("in active
workings") explicitly included "electric equipment therein." Id. (quoting McNally v. United
States, 483 U.S. 350, 358-59 (1987) (Congress used the word "or" to make it clear that the
statute reached the particular circumstance described in the phrase following the term)).

If a statute is ambiguous or silent on a point in question, an inquiry is required to
determine whether an agency interpretation of the statute is a reasonable one. Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44 (1984); Donald Guess,
employed by Pyro Mining Co., 15 FMSHRC 2440, 2442 n.2 (December 1993); Keystone Coal
Mining Corp., 16 FMSHRC 6, 13 (January 1994).2 Here, the Secretary's interpretation of the
standard is reasonable and entitled to deference. It furthers safety objectives of the Mine Act by
prohibiting accumulations in active workings, regardless of whether such accumulations exist on
the mine floor, on pallet loads of supplies such as rock dust bags, on stacks of material such as
concrete blocks, or on powered equipment working or stored in active workings. Accumulations
on diesel-powered equipment are equally or more dangerous than accumulations on the mirie
floor. According deference to the Secretary's interpretation of the standard, which is a statutory
provision, is appropriate because it is not plainly erroneous or inconsistent with the regulation
and it is a reasonable interpretation which furthers the prime objective.of the Mine Act,
protecting the health and safety of miners. Dolese Brothers Co., 16 FMSHRC 689, 693 {April
l 994)(quoting Emery Mining Co. v. Secretary ofLabor, 744 F.2d 1411, 1414 (10th Cir. 1984)).
Amax's assertion that the term "or" is disjunctive and thus restricts section 75.400's
prohibition to places and electric-powered equipment would thwart the objectives of the Mine
Act by prohibiting accumulations on the floor of active workings but not those accumulations on
diesel-powered equipment in those workings. Inasmuch as the Secretary' s interpretation is
reasonable and furthers the purposes of the Mine Act, we give it weight and conclude, as did the
judge, that·section 75.400 prohibits the accumulation of combustible materials on diesel-powered
equipment in active workings.
We reject Amax's assertion that the Secretary's interpretation deprives it of due process.
In ascertaining whether an operator has received fair warning of a standard, the Commission has
applied an objective standard of notice, the "reasonably prudent person" test. BHP Mining Co.,

2

This is commonly referred to as a "Chevron If' analysis. See, e.g., Keystone, 16
FMSHRC at 13.

13pl

18 FMSHRC _ , slip op. at 4, Docket Nos. CENT 92-329, CENT 93-272 (August 19, 1996).
The Commission has summarized this test as "whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard." Ideal Cement Co., 12 FMSHRC 2409, 2416
(November 1990). We conclude that an operator familiar with the purpose of prohibiting coal
accumulations in active workings would have fair warning that the regulation applies to
accumulations of coal dust on diesel equipment.

Marc Lincoln Marks, Commissioner

1362

Commissioners Holen and Riley:
We agree with Chairman Jordan and Commissioner Marks' opinion 'i n result but disagree
with their rationale as it applies to the issue of deference.
We would affirm the judge's conclusion that Amax violated section 75.400 because we
believe the Secretary's interpretation of the standard is reasonable and furthers the safety
objectives of the Mine Act. See Dolese Brothers Co., 16 FMSHRC 689; 693 (April 1994)
(quoting Emery Mining Co. v. Secretary ofLabor, 744 F.2d 1411, 1414 (10th Cir. 1984)).
Chairman Jordan and Commissioner Marks, in our view, have articulated an overly broad
concept of deference to which they say the Secretary is entitled for his interpretations of the
statute as well as the regulations. Slip op. at 6-7. Our colleagues would have deference to the
Secretary become a vow of obedience that obliges the Commission to acquiesce to virtually any
interpretation of law advanced by the Secretary. Such a sweeping concept of deference cannot be
reconciled with the Supreme Court's statement in Thunder Basin Coal Co. v. Reich that this
Commission "was established as an independent-review body to ' develop a uniform and
comprehensive interpretation' of the Mine Act." 510 U.S. _, 114 S. Ct. 771 , 127 L. Ed. 2d 29,
42 ( 1994) (quoting Hearing on the Nomination of Members ofthe Federal Mine Safety and
Health Review Commission before the Senate Committee on Human Resources, 95th Cong., 2d
Sess., 1 ( 1978)).

~~

Arlene Holen, Commissioner

1363

Distribution
R. Henry Moore, Esq.
Buchanan Ingersoll
Professional Corporation
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219-1410
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Jerold Feldman
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041

1364

F.EDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, O.C. 20006

August 29 , 1996

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

v.

Docket Nos.

PENN 93-199-R
PENN 93-308

NEW WARWICK MINING CO.

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

DECISION
BY: Jordan, Chairman; Holen and Riley, Commissioners
This consolidated contest and civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involves
the issue of whether New Warwick Mining Company ("New Warwick") violated 30 C.F.R.
§ 70.207(a) 1 by taking bimonthly designated occupation respirable dust samples inside a miner's
airstream helmet, and whether the alleged violation resulted from its unwarrantable failure to
comply with the standard. Administrative Law Judge Arthur Amchan concluded that New
Warwick violated the regulation and that the violation resulted from unwarrantable failure. 16
FMSHRC 1083 (May 1994) (ALJ). The Commission granted New Warwick's petition for
discretionary review, which challenges the judge's determinations. For the reasons that follow,
we affirm those determinations.

1

Section 70.207(a) provides, as pertinent:
Each operator shall take five valid respirable dust samples
from the designated occupation in each mechanized mining unit
during each bimonthly period begi1U1ing with the bimonthly period
of November 1, 1980. Designated ·occupation samples shall be
collected on consecutive normal production shifts or normal
production shifts each of which is worked on consecutive days.

1365

Factual and Procedural BackGround
New Warwick owns the Warwick Mine, which is located in Greene County,
Pennsylvania. 16 FMSHRC at 1083. On January 15, 1993, Rod Rodavich, the safety director at
the mine, asked Robert Newhouse, a supervisor at the Mine Safety and Health Administration
("MSHA") field office in Waynesburg, Pennsylvania, whether respirable dust sampling could be
conducted inside a RA CAL airstream helmet, a battery-powered air-purifying respirator. Id at
1083-84; Tr. 61-62. Newhouse responded that samples taken inside a respirator had not been
acceptable to MSHA in the past, but he could not cite a specific regulation that forbade the
practice. 16 FMSHRC at 1084 & n. l . Later in January, Rodavich discussed the question with
MSHA Inspector William Wilson, also of the Waynesburg office. Id at 1084; Tr. 11-12.
Wilson indicated that sampling inside the helmet was unacceptable to MSHA, but was also
unable to point to a specific regulation that such sampling would violate. 16 FMSHRC at 108485 & n.2. On February 5, Rodavich raised the issue with MSHA Supervisory Inspector Tom
Light of the Waynesburg office. Id at 1084-85. Light told Rodavich that such sampling was
against MSHA policy and that New Warwick would be cited if it took such samples for
compliance purposes. · Id at 1085 & n.3. Light also told Rodavich that MSHA regulations
require sampling in the mine atmosphere and that samples taken underneath the helmet were not
samples taken in the mine atmosphere. Id. Light further suggested that Rodavich read the
preamble to MSHA's Part 70 regulations. Id at 1085. Light was unable to specify the
regulation that would be violated by sampling under the helmet. Id.
On February 8, 9, and 10, pursuant to Rodavich's directions, New Warwick took five
respirable dust samples inside the RACAL airstream helmet respirators worn by the longwall
shear operators on the tailgate side. 16 FMSHRC at 1085; Jt. Ex. 1 at 3-Stips. 11and12; Gov't
Ex. 8. The longwall shear operator position is a designated occupation for purposes of
respirable dust sampling. Tr. 8. Although Rodavich had previously informed MSHA personnel
that he intended to take such samples unless they were able to point him to a regulation
prohibiting them, he did not advise that the sampling·would be done on February 8-10. 16
FMSHRC at 1085-86.
A few days after New Warwick completed the sampling, Inspector Wilson saw copies of
the mine's dust data cards. 16 FMSHRC at 1086. Wilson suspected that the samples had been
taken inside the helmet and, with Light's assistance, obtained the results of the samples; the
highest reading was 0.5 mg/m 3• Id; Gov't Ex. 9. On February 22, a New Warwick miner, upon
questioning by Wilson, indicated that the samples had been taken underneath the helmet. 16
FMSHRC at 1086; Tr. 28. The next day Light asked Rodavich to confirm this, which he did. 16
FMSHRC at 1086; Tr. 86.
On February 24, dust samples were taken on the longwall face with the sampling cassette
placed outside the helmet. 16 FMSHRC ~t 1087; Tr. 30-31. The results, which were reported

1366

several days later, showed concentrations as high as 4.4 mg/m3 of air, far in excess of the 2.0
mg/m3 ceiling established by 30 C.F.R. § 70.IOO(a).2 16 FMSHRC at 1087. On February 25,
Wilson issued a section 104(d)(l) order alleging a violation of section 70.207(a) on the ground
that New Warwick failed to take valid respirable dust samples during the January/February
bimonthly sampling period because New Warwick's dust samplings were taken inside the
helmet. 16 FMSHRC at 1083, 1086-87, 1092; Gov't Exs. 1, 2; Jt. Ex. 1at3-Stip. 11.
The judge concluded that taking respiratory dust samples underneath the helmet violated
section 70.207(a), based on his consideration of the Part 70 regulations in their totality, including
30 C.F.R. §§ 70.lOO(a) and 70.300, and the preamble to the Part 70 regulations.3 16 FMSHRC at
1089. He also found that the record established that MSHA policy, prohibiting the substitution
of the airstream helmet for environmental controls, had not changed. Id In concluding that the
violative conduct resulted from New Warwick's unwarrantable failure, the judge found that
Rodavich's sampling was "intentional," "highly unreasonable under the circumstances," and
"sufficiently aggravated to constitute an 'unwarrantable failure.'" Id at 1090-92. The judge
assessed a penalty of $500. Id. at 1093.

IL
Disposition
A. Violation

New Warwick argues that taking respirable dust samples under the helmet does not
violate the requirements of sections 70.207(a), 70.1 OO(a), or 70.300, and that the preamble to the
Part 70 regulations does not prohibit use of the helmet as an aid to compliance. N.W. Br. at 5-9.
In response, the Secretary argues that the judge correctly concluded New Warwick violated
section 70.207(a). S. Br. at 9-18. The Secretary contends his interpretation is consistent with the
purpose of the Mine Act and the regulations implementing the Mine Act, and that he has
consistently interpreted section 70.207(a) to prohibit the practice in question ever since the
regulation was promulgated. Id. at 11-13, 15.
The Commission has recognized that, where the -language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the. regulator clearly
intended the words to have a different meaning. See, e.g., Utah Power & Light Co., 11
FMSHRC 1926, 1930 (October 1989), citing Chevron US.A., Inc. v. Natural Resources Defense

2

Wilson issued a citation for this condition. Tr. 33.

3

The judge also concluded that New Warwick's samples violated section 70.207(a)
because they were not taken with an approved sampling device. 16 FMSHRC at 1087. That
ruling is not before the Commission on review.

1367

Council, Inc., 467 U.S. 837, 842-43 (1984). In ascertaining the plain meaning of a regulation,
the Commission must look to the particular regulatory language at issue, as well as the language
and design of the Secretary's regulations as a whole. See Thunder Basin Coal Co., 18 FMSHRC
582, 584 (April 1996), citing K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). The
Secretary's regulations should be interpreted to give comprehensive, harmonious meaning to all
provisions. See 2 Am. Jur. 2d Administrative Law~ 239 (1994); McCuin v. Secretary of Health
and Human Services, 817 F.2d 161 , 168 (1st Cir. 1987).
We agree with the judge that the Part 70 sampling scheme as a whole clearly prohibits an
operator from taking respiratory dust samples underneath the helmet. 16 FMSHRC at 1088.
Section 70.207(a) establishes MSHA ' s designated occupation sampling program, requiring the
operator to take five valid respirable dust samples from the designated occupation in each
mechanized mining unit (e.g., longwall) bimonthly. "Valid respirable dust sample" is defined by
30 C.F.R. § 70.2(p) as a sample collected and submitted pursuant to part 70 and not voided by
MSHA. The "designated occupation'' is the occupation determined to have the greatest
respirable dust concentration. 30 C.F.R. § 70.2(f).
The designated occupation sampling program contained in section 70.207(a) is an area
sampling program, not a personal sampling program. American Mining Congress v. Marshall,
671 F.2d 1251, 1256 (10th Cir. 1982); preamble to the Part 70 regulations, 45 Fed. Reg. 23,990,
23,991, 23,993, 23,998 (1980); Tr. 181, 185-86, 191-92, 195. Area sampling programs are
premised on the assumption that if the concentration of dust in the atmosphere of the highest risk
occupation is not excessive, then the dust concentration in the atmosphere of other occupations
with lower concentrations will be below the prescribed maximum. American Mining Congress,
671 F.2d at 1256; Tr. 181, 191. The preamble to Part 70 further indicates that designated
occupation samples "measure the mine atmosphere ... rather than the exposure of any individual
miner ...." 45 Fed. Reg. 23,998. In considering the predecessor provision under the Federal
Coal Mine Health and Safety Act of 1969 (" 1969 Coal Act"), the Senate Committee indicated its
intention that "the average dust level at any job,for any miner, in any ac;tive working place
during each and every shift, shall be no greater than the standard." S. Rep. No. 411 , 91 st Cong.,
1st Sess. 20 (1969) (''S. Rep."), reprinted in Senate Subcommittee on Labor, Committee on
Labor and Public Welfare, 94th Cong., l st Sess., 1 Legislative History ofthe Federal Coal Mine
Health and Safety Act of 1969, at 146 (1975) ("1969 Coal Act Legis. Hist." ) (emphasis supplied).
The judge correctly determined that a sample or sampling technique not in compliance
with section 70.1 OO(a) would not be valid for purposes of section 70.207(a). 16 FMSHRC at
1088-89. Section 70. l OO(a) requires the operator to "maintain the average concentration of
respirable dust in the mine atmosphere . . . to which each miner in the active workings· ... is
exposed at or below 2.0 milligrams of respirable dust per cubic meter of air .. . ." 30 C.F.R.
§ 70.IOO(a) (emphasis supplied). The samples taken pursuant to section 70.207(a) are the
primary means by which MSHA and the operator monitor compliance with section 70.1 OO(a).
Thus, a sample taken underneath a respirator cannot be considered a sample taken "in the mine

1368

atmosphere." The locality applicable under section 70.l OO(a) is the "active workings," which is
defined as "any place ... where miners are normally required to work or travel." 30 C.F.R.
§ 70.2(b). Because the RACAL airstream helmet is an air-purifying respirator and New
Warwick's dust sampling device measured only respirable dust inside the helmet face shield after
purification, we agree with the judge that New Warwick's d~vice did not measure respirable dust
concentrations in the "mine atmosphere." See 16 FMSHRC at 1088-89.
In addition, the judge correctly reasoned that the Part 70 preamble further supports the
proposition that the helmet may not serve as a means of compliance with section 70.1 OO(a). See
16 FMSHRC at 1089. During the course of the Part 70 public hearings, MSHA had been urged
to accept the use of the airstream helmet as a means of compliance with the respirable dust
standard in certain longwall mining operations. MSHA rejected this proposal, indicating in the
preamble that it would "continue to require implementation of engineering controls in coal mines
as the means of achieving compliance with the applicable dust standard." 45 Fed. Reg. at
23,993.
The use of the airstream helmet for purposes of respirable dust sampling is not consistent
with the language and .purposes of section 70.300. 4 See 16 FMSHRC at 1089. Section 70.300
prohibits the substitutihp of respirators, which do not materially alter the dust concentration in
the mine atmosphere (Tr. 43), for environmental controls (e.g., ventilation, water sprays, and
other mechanisms regulating the concentration of dust in the mine atmosphere) in the active
workings. Section 70.300 also requires that respiratory equipment be made available to persons
exposed to respirable dust in excess of the levels required to be maintained in Part 70. This
requirement indicates that the maximum permissible respirable dust levels under section

4

Section 70.300 provided:
Respiratory equipment approved by the Secretary and by
the Secretary of Health and Human Services shall be made
available to all persons whenever exposed to concentrations of
respirable dust in excess of the levels required to be maintained
under this part 70. Use ofrespirators shall not be substituted for
environmental control measures in the active workings. Each
operator shall.maintain a supply ofrespiratory equipment adequate
to deal with occurrences of concentrations of respirable dust in the
mine atmosphere in excess of the levels required to be maintained
under this part 70.
.

.

30 C.F.R. § 70.300 (1994). Effective July 10, 1995, section 70.300 was revised. 60 Fed. Reg.
30,401 (1995). Under the revised regulatioµ, the National Institute of Occupation~l .Safety and
Health has the sole responsibility for approving respiratory equipment. Otherwise, the
substantive provisions of the regulation are essentially the same.

1369

70.lOO(a) are determined independent ofrespirators. 5 Thus, we reject New Warwick's
contention that, because section 70.l OO(a) limits the concentration ofrespirable dust "to which
each miner in the active workings ... is exposed," sampling underneath the helmet complies
with the regulation. See N.W. Br. at 5. The use of the helmet only protects the user, and is not
indicative of the respirable dust exposure of other miners in the active workings.
In sum, taking dust samples underneath the helmet is clearly prohibited by section
70.207(a) and its related Part 70 provisions. We therefore affirm the judge's conclusion that
New Warwick violated section 70.207(a).
B. Unwarrantable Failure.
New Warwick argues that Rodavich did not intentionally violate the cited regulation or
the Mine Act. N.W. Br. at 10. New Warwick also contends that Rodavich attempted a good
faith challenge ofMSHA's interpretation of the regulation and wished to have the issue clarified
by receiving a citation. Id. at 11 , 13. New Warwick further asserts that Rodavich made every
attempt that a reasonably prudent person would have made to determine whether he would be
violating the law if he took samples under the helmet. Id. at 11-13. In response, the Secretary
stresses that New Warwick's conduct was deliberate, and that New Warwick was not acting in an
objectively reasonable manner in taking the test samples. S. Br. at 20-23.
Unwarrantable failure constitutes aggravated conduct, exceeding ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 1987). Unwarrantable failure is
characterized by such conduct as "reckless disregard," intentional misconduct," "indifference" or
a "serious lack of reasonable care." Id. at 2003-04; Rochester & Pillsburgh Coal Co., 13
FMSHRC 189, 193-94 (February 1991). The Commission has required that an operator's efforts
in trying to achieve compliance with a standard be reasonable. Peabody Coal Co., 18 FMSHRC
494, 498 (April 1996).
New Warwickcontends that it acted in good faith in challenging the regulation, but its
actions were not reasonable. Samples collected inside a miner's respirator cannot measure the

5

The language of the standard is essentially derived from section 202(h)'ofthe Mine
Act, 30 U.S.C. § 842(h), which was carried over without significant change from the 1969 Coal
Act. The Coal Act's legislative history indicates that personal respirators should not be used as
substitutes for environmental controls because they are "extremely uncomfortable to the workers
and impracticable for the type of operations [they] must generally perform." H. Rep. No. 563,
91st Cong., 1st Sess. 15 (1969), reprinted in 1969 Coal Act Legis. Hist. at 1045. The Senate
Report concluded that the equipment "should be used only in those specialized occasional
situations specifically authorized ...." S. Rep. at 21, reprinted in 1969 Coal Act Legis. Hist. at
147.

1370

respirable dust exposure of other miners working on the section. See Tr. 182. New Warwick's
sampling inside the helmet is also contrary to the clear regulatory requirement. Further,
Rodavich kilew beforehand that sampling from inside a respirator was a major·departure from
conventional practice. 16 FMSHRC at 1091. Rodavich further acknowledged he had never
heard ofMSHA accepting respirable dust samples ~ollected inside a respirator. Tr. 218. In
addition, New Warwick's failure to identify the source of the samples is inconsistent with its
assertion that its challenge to the regulation was made in good faith. Thus, we cannot conclude
that Rodavich acted in an objectively reasonable manner.
We reject New Warwick's argument that it made every reasonable attempt to determine
whether it would be violating the law. The judge did not err in concluding that Rodavich should
have gone to MSHA's District Office for further consultation. See 16 FMSHRC at 1091.
MSHA personnel had advised Rodavich to take various steps if New Warwick intended to
challenge the regulations, including: (1) submitting a plan to MSHA's District Manager
requesting an evaluation of the proposed sampling procedure; (2) requesting permission to
sample from inside the respirator for test purposes; and (3) contacting MSHA's District Health
Supervisor for further advice. Tr. 42, 78-79, 106-07, 110, 112, 118-19. Rodavich was advised
not to sample on his own. Tr. 119. Nothing in the record indicates Rodavich took any of these
steps or followed Superl:~sory Inspector Light's suggestion to read the preamble to Part 70. 16
FMSHRC at 1091. Accordingly, we conclude that the violation resulted from New Warwick's
unwarrantable failure.

1371

III.
Conclusion
For the foregoing reasons, we affinn the judge's detenninations that New Warwick
violated section 70.207(a) and that the violation resulted from unwarrantable failure.

J!ia;zydanfi:::t~~

d!!u.A

Arlene Holen, Commissioner

es C. Riley, Commissioner

1372

Commissioner Marks, concurring:
I concur with the opinion of my colleagues. I write separately to address an additional
concern about the operator's sampling of air filtered through personal protective equipment.
New Warwick's sampling method would run directly counter to an important
Congressional mandate by permitting miners in active working places to be exposed to dust in
excess of the 2.0 mg/m3 specified in 30 C.F.R. § 70.lOO(a). Sampling inside a respiratory device
worn by a miner is a personal sampling program, not an area sampling program. American
Mining Congress v. Marshall, 671F.2d1251, 1255 (10th Cir. 1982); Tr. 182. I agree with the
Secretary (S. Br. at 16-18, 23-24) that, if operators were permitted to collect samples from
underneath the face shield of the respirator worn by the designated high risk miner, miners in less
risky occupations who may be wearing a different helmet or no helmet at all would not be
protected. See Tr. 182-83. Sampling within an individual's respirator measures an atmosphere
unique to the individual wearing that respirator, not the general atmosphere at the mine. Tr. 18182. The record shows that section foremen, spending close to 65 percent of their time near the
shear operator, were not wearing the helmet. 16 FMSHRC 1083, 1092 n.6 (May 1994) (ALJ);
Tr. 241-42. Indeed, New Warwick did not have a requirement that its miners wear the helmet.
Tr. 242. Therefore, the fact that the shear operator may not have been exposed to excessive dust
concentrations beneath his airstream helmet provides no assurance that other miners were not
exposed to excessive concentrations, Tr. 182, and sampling underneath the helmet would defeat
the area-sampling basis of 30 C.F.R. § 70.207(a). See also American Mining Congress, 671 F.2d
at 1257; 45 Fed. Reg. at 23,998 (advantages of area sampling over personal sampling). New
Warwick's sampling inside the airstream helmet was therefore clearly inconsistent with section
70.207(a).

Marc Lincoln Marks, Commissioner

1373 .

Distribution

Joseph A. Yuhas, Esq.
1809 Chestnut Avenue
P.O. Box 25
Barnesboro, PA 15714
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law.Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1374

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

August 30, 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos. KENT 93-646
KENT93-884

MANALAPAN MINING COMPANY,
INCORPORATED

BEFORE: Jordan, Chairman; Holen, Marks and Rlley, Cominissioriers

DECISION

BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and H~alth Act of
1977, 30 U.S .C. § 801 et seq. (1994) ("Mine Act" or "Acf'), raises the.issue or°whether
violations of three safety standards, 30 C.F.R. §§ 75..1 1011, 77.1109(c)(1)2 , ana"

1

Section 75.1 101, entitled "Deluge-type water sprays, foam generators; main and
secondary belt-conveyor drives," provides:
Deluge~type water sprays or foam generators automatically

actuated by rise in temperature; or other no less effective means
approved by ·the Secretary of controlling fire, shall be installed at
main and secondary belt-conveyor drives.
2

Section 77 .1109(c)( 1), entitled "Quantity and location of firefighting equipment,"

provides:
Mobile equipment, including trucks, front-end loaders,
bulldozers, portable welding units, and augers, shall·be equipped
with at least one portable fire extinguisher.

1375

75.360(a)3 (1995), by Manalapan Mining Company, Inc. ("Manalapan"), were significant and
substantial ("S&S").4 Administrative Law Judge Avram Weisberger found that the three
violations were not S&S. 16 FMSHRC 1669 (August 1994) (ALJ). The Conimission granted
the Secretary of Labor's petition for discretionary review challenging the judge's
determinatiohs. 5 For the reasons that follow, the judge's decision with respect to the first two
S&S determinations stands as if affirmed, and the Commission reverses the third S&S holding
with respect to the preshift violation.
•

I.
Factual and Procedural Back&round
Manalapan operates underground coal mines in Harlan County, Kentucky. This
consolidated proceeding involved approximately 45 citations and orders that arose from
inspections conducted by the Department of Labor's Mine Safety and Health Administration
("MSHA") of the Manalapan mines. The judge held evidentiary hearings in this proceeding on
March 1-3, ~d April 26-28, 1994.6 Three violations remain at issue involving Manalapan Mines
No. 1 and No. 7 in Highsplint, Kentucky.

3

Section 75.360(a), entitled "Preshift examination," provides:
Within 3 hours preceding the beginning of any shift and
before anyone on the oncoming shift, other than certified persons
conducting examinations required by this subpart, enters any
underground area of the mine, a certified person designated by the
operator shall make a preshift examination.

4

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l ), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a .. . mine safety or health hazard .. . ."
5

Manalapan also successfully filed a petition for review of two docket nu,mbers that
were part of this proceeding. The Secretary and Manalapan subsequently moved the
Commission to approve their settlement of those matters and Manalapan sought to dismiss its
appeal. The Commission remanded the motion to the judge (16 FMSHRC 2027, 2028 (October
1994)), and t4e judge subsequently granted the motion (16 FMSHRC 2308 (November 1994)
(ALJ)) . .Accordingly, only the Secretary's petition is now before the Commission.
6

"Tr. I" refers to the transcript for March 1, 1994; "Tr. II" refers to the transcript for
March 2, 1994; "Tr. III" refers to the transcript for March 3, 1994; "Tr. IV" refers to the
transcript for April 26, 1994; "Tr. V" refers to the transcript for April'27, 1994; and "Tr. VI"
refers to the transcript for April 28, 1994.

1376

A.

Violations of Sections 75.1101and77. 1109(c)(l): Citation Nos. 3164716 and
3835998
1.

Deluge Fire Suppression System

On February 22, 1993, MSHA Inspector Jim Langley visited Manalapan's No. 1 Mine.
He observed that the belt drive for the mechanized mining unit number 006 was not provided
with a deluge fire suppression system. 16 FMSHRC at 1691. A deluge fire suppression system
consists of two parallel branch lines, approximately 50 feet long, with water nozzles at eight foot
intervals. Tr. IV 132. The system is activated automatically by fire sensors and sprays the upper
and lower sides of the top belt and the upper side of the bottom belt. Id. Inspector Langley
issued a citation pursuant to section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)( l), alleging
an S&S violation of section 75.11 01. Gov't Ex. 49.
2.

Fire Extinguisher

On June 28, 1993, MSHA Inspector Elmer Thomas conducted an inspection at
Manalapan's No. 7 Mine. 16 FMSHRC at 1700. Inspector Thomas observed a front-end loader
scooping up and loadi~ coal into trucks. Id. at 1700-01 ; Tr. V 354. He determined that the
loader lacked a fire extinguisher. 16 FMSHRC at 1700. Thomas issued a citation charging a
violation of section 77.l 109(c)(l) and designated the violation as S&S. Gov't Ex. 12A.
B.

Violation of Section 75.360(a): Order No. 4238749 (Preshift Examination)

On April 20, 1993, at approximately noon, MSHA Inspector Adron Wilson was traveling
to section 707 of Manalapan Mine No. 7 and observed four employees in the mine repairing a
roof bolting machine. 16 FMSHRC at 1676, 1701; Gov't Ex. 7A. The men had entered the mine
at approximately 8:00 a.m. Tr. V 397. No preshift examination had been performed before they
entered the mine. 16 FMSHRC at 1701. At 12:05 p.m., the inspector issued an order, pursuant
to section 104(d)(l) of the Mine Act, alleging a violation of section 75.360(a) for failure to
perform the preshift inspection. Id.; Gov't Ex. 7A. The order was terminated at 12:40 p.m., after
Allen Johnson, the mine superintendent, conducted a preshift examination and observed no
hazardous conditions. 16 FMSHRC at 1702; Gov't Ex. 7A.
Manalapan challenged the citations and order, and the matters were consolidated for
hearing. In his decision, the judge affirmed the citations with regard to the deluge fire
suppression system and the fire extinguisher. 16 FMSHRC at 1691, 1700. He vacated the S&S
designations, however. Id. at 1692-93, 1701 . The judge found that the Secretary had shown only
that potential fire sources were present and, therefore, had not proved an injury-producing event
was likely to occur. Id. He assessed penalties of $2,000 for the lack of a fire deluge system, and
$400 for the absence of a fire extinguisher. Id. at 1693, 1701. With regard to the operator's
failure to conduct a preshift examination, the judge also affirmed the citation. Id. at 1701. He
concluded, however, that the violation was not S&S, noting that the inspection conducted
3

immediately after the order revealed no hazardous conditions in the affected area of the mine. Id.
at 1702. Finding that the violation resulted from aggravated conduct, the judge assessed a
penalty of $3,000. Id.

II.
Disposition7
A.

Deluge Fire Suppression System and Fire Extinguisher

Commissioner Holen and Commissioner Riley would affirm the judge's decision.
Chairman Jordan and Commissioner Marks would vacate and remand the judge's decision.
Under Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65 (August 1990), affd on other
grounds, 969 F.2d 1501 (3d Cir. 1992), the effect of the split decision is to allow the judge's
decision to stand as if affirmed.
B.

Preshift Examination

All Commissioners reverse the judge's determination that Manalapan's preshift violation
was not S&S. All Commissioners remand for reassessment of penalties for this violation.
Chairman Jordan and Commissioner Marks would reverse on the ground that there is a
presumption that violations of the preshift examination standard are S&S. Commissioner Holen
and Commissioner Riley would reverse on the ground that substantial evidence does not support
the judge.

III.
Separate Opinions of the Commissioners
Commissioners Holen and Riley, in favor of affllliling in part and reversing in part the
decision of the administrative law judge:
A.

Deluge Fire Suppression System and Fire Extin~isher

Tue Secretary argues that, in analyzing the S&S designations of the two citations, the
only logical approach is to assume the occurrence of a fire. He further asserts that, if violations
of safety standards designed to respond to emergency situations are not analyzed in the context

7

We direct the judge to correct a clerical oversight with respect to Docket No. KENT 93882, which was settled, and to indicate that Citation No. 3003352 was vacated by the Secretary.
See S. Br. at 6 n.5; Tr. IV 5.

4

of the emergency having occurred, those violations only rarely will be found to be S&S. S. Br. .
at 10-15.
Manalapan argues that the Secretary, in effect, seeks an irrebuttable presumption as to
the occurrence of an emergency .condition and that such a presumption violates the constitutional
requirements of due process. See M. Br. at 7-16. Manalapan further asserts that the Commission
may adopt such a presumption only through notice-and-comment rulemaking. Id. at 16-17. In
response, the Secretary disagrees with Manalapan's contention that the use of a factual
presumption in analyzing S&S designations of violations of emergency standards raises
constitutional questions. S. Reply Br. at 1-9. The Secretary also argues in rebuttal that
administrative agencies can adopt presumptions through case adjudication and are not
constrained to do so by rulemaking. Id. at 9-12.
The S&S terminology is taken from section 104(d)(l) of the Act and refers to more
serious violations. A violation is S&S if, based on the particular facts surrounding the violation,
there exists a reasonable.likelihood that the hazard contributed to will result in an injury or
illness of a reasonably serious nature. Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825
(April 1981). In Mathjes Coal Co., 6 FMSHRC 1(January1984), the Commission further
explained:
'
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (I) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety - contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

Id at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Secretary ofLabor, 861F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria).
We reject the Secretary's argument that the Commission, in determining whether there is
a reasonable likelihood that a hazard would result in an injury, must presume the occurrence of
an emergency, in the instant case a fire. 8 The Secretary bears the burden of proving that a

8

The Commission rejected on procedural grounds the Secretary's arguments in previous
cases that it examine the S&S nature of violations in the context of the presumed occurrence of
an emergency. Beech Fork Processing,. Inc., 14 FMSHRC 1316, 1321(August1992); Shamrock
Coal Co., 14 FMSHRC 1306, 1314(August1992); Shamrock Coal Co., 14 FMSHRC 1300;
1304 (August 1992).

1379

violation is S&S. See, e.g., Peabody Coal Co. 17 FMSHRC 26, 28 (January 1995), citing Union
Oil of Cal., 11 FMSHRC 289, 298-99 (March 1989). As the Secretary notes, "A presumption is
a device for allocating the burden of proof and often shifts the burden of proof to the party
opposing the presumption." S. Reply Br. at 2 (citations omitted). The Secretary urges the
Commission to presume an emergency for an undefined and potentially large class of health and
safety standards without indicating what situations under those standards would qualify as an
emergency. We decline to modify the time-tested Commission precedent that guides our
analysis of violations alleged to be S&S by adopting such a broad-based presumption.
Further, the Secretary has failed to develop a record that establishes the need for such a
change in the law. In Consolidation Coal Co., 8 FMSHRC 890 (June 1986), affd, 824 F.2d
1071 (D.C. Cir. 1987), the Commission held that, when the Secretary proves a violation of the
respirable dust standard, 30 C.F.R. § 70.IOO(a), "a presumption arises that the third element of
the significant and substantial test -- a reasonable likelihood that the health hazard contributed to
will result in an illness -- has been established." 8 FMSHRC at 899. The Commission adopted
the presumption because of the virtual impossibility of determining the contribution of a single
incident of overexposure to respirable dust to the development of respiratory diseases, including
pneumoconiosis. "[I]t .is not possible to assess the precise contribution that a particular
overexposure will make to the development of respiratory disease." Id. at 898. The Secretary
has not shown here a similar need for the use of a presumption in analyzing violations of
standards that address emergency situations. Indeed, the Secretary has prevailed in cases where
the S&S designation of such standards has been challenged. E.g., Consolidation Coal Co., 6
FMSHRC 189, 194-195 (February 1984) (violation of fire fighting equipment standard affirmed
as S&S based on substantial evidence). Thus, we decline to decide on the present record that, in
determining whether violations of certain standards are properly designated S&S, we should
presume the occurrence of an emergency.
We note, moreover, an observation by the Secretary that appears to render his suggested
S&S framework irrelevant to the deluge system violation:
[E]ven assuming the occurrence of a fire, a violation of 30 C.F .R.
75.1101 might not be significant and substantial. For example, if
other fire extinguishers were present, the failure to have a deluge-.
type fire suppression system might not result.in a reasonable
likelihood of serious injuries ....
S. Br. at 14 n.7. As Manalapan points out, Inspector Langley admitted that there were fire
extinguishers located at the belt. M . Br. at 2, citing Tr. IV at 162-63. The Secretary's exception
appears to fit the facts in this case.
As in previous cases in which the Secretary has asked the Commission to examine the
S&S nature of a violation in the context of a presumed emergency, he has not argued that the
judge's S&S findings are not supported by the record. Beech Fork Processing, Inc., 14

1380

FMSHRC 1316, 1318-19 (August 19?2); Shamrock Coal Co., 14 FMSHRC 1306, 1310 (August
1992); Shamrock Coal Co., 14 FMSHRC 1300, 1302 (August 1992). Thus, the Commission is
precluded from reviewing those findings on a substantial evidence basis. Accordingly, we affirm
the judge's determinations that Manalapan's violations of sections 75.1101 and 77.l 109(c)(l)
were not S&S.
B.

Preshift Examination

The Secretary argues that the Commission should conclude that a failure to conduct a
preshift examination is presumptively S&S. S. Br. 15-21. With respect to this violation, unlike
the two preceding violations, the Secretary contends that the judge incorrectly applied the
Mathies criteria; he notes that the judge relied on an inspection performed after the citation,
which showed no hazardous conditions. S. PDR at 16-17.
Manalapan argues that the presumption the Secretary seeks violates due process because
there is no rational connection between the violation and the preswnption of reasonable
likelihood of serious injury. M. Br. at 10-11. Manalapan further asserts that the preswnption is
arbitrary because it is •~ontrary to the record facts. Id. at 11-12. Manalapan also points out that
the Secretary did not rciise his argwnent that the failure to conduct a preshift examination is
preswnptively S&S before the administrative law judge. Id. at 18.
We reject the Secretary's argwnent that the Commission should apply a presumption to
the S&S designation of the citation involving Manalapan's failure to conduct the preshift
examination. First, the Secretary did not raise his presumption argument to the administrative ·
law judge. Section 113 of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(iii), provides, "Except for
good cause shown, no assignment of error by any party shall rely on any question of fact or law
upon which the administrative law judge had _n ot been afforded an opportunity to pass."
Commission precedent also prohibits consideration of new theories raised on appeal. Beech
Fork, 14 FMSHRC at 1321, citing Ozark-Mahoning Co., 12 FMSHRC 376, 379 (March 1990).
See also 29 C.F.R. § 2700.70(d) (1995). We see no reason to ignore the Mine Act's statutory
review provisions and depart from settled Commission precedent to reach the Secretary's
belatedly-raised theory. .
Again, the Secretary suggests a rebuttal to his proposed presumption that fits the facts of
this case: "The mine operator may then rebut the preswnption that hazards existed by producing
evidence indicating that no hazards existed." S. Reply Br. at 5. Here, upon immediate
examination after the violation, ''no hazardous.conditions were observed.-" 16 FMSHRC at 1702.
Thus, adoption of the Secretary's proposed presumption may achieve a result contrary to that ·
intended and preclude a finding of S&S for Manalapan's failure to conduct a preshift
examination.
Viewing the record as a whole, we find it-does riot support the judge's finding that
Manalapan's violation was not reasonably-likely to result in an injury and thus that the·Secretary

1381

had not proven the third element of the Mathies test. Id. Substantial evidence does not support
the judge's S&S determination.9 In addition, the judge's analysis of mine conditions erroneously
considered subsequent conditions as they existed when the operator abated the citation.

In concluding that Manalapan's failure to .conduct a preshift examination was not S&S,
the judge relied on the fact that, following the citation, the area involved was inspected "and no
hazardous conditions were observed." 16 FMSHRC at 1702. The judge's reliance on postcitation events to vacate the S&S designation is incorrect as a matter of law. The question of
whether a violation is S&S must be resolved on the basis of the conditions as they existed at the
time of the violation and as they might have existed under continued normal mining operations.
Eastern Associated Coal Corp., 13 FMSHRC 178, 183 (February 1991); US. Steel Mining Co.,
7 FMSHRC 1125, 1130 (August 1985). Moreover, certain conditions that a preshift examination
would disclose, such as methane or inadequate ventilation, are transitory in nature and the results
of a subsequent ·inspection may have little relevance to conditions at the time of violation.
The Secretary's evidence showed that four miners entered the 707 section of the mine to
perform maintenance and repair work on a roof bolter. 16 FMSHRC at 1701. The mine had been
out of production for several days. Tr. V 415. Although two of the miners were certified
inspectors, no preshiffexamination was performed. 16 FMSHRC at 1701-02. They were in the
mine for four hours without such an inspection. See Tr. V 397, Gov't Ex. 7A. The miners'
equipment included welding and cutting torches for their work on the roof bolter. Tr. V 370-71,
379-80. ·The roof bolter was energized. Tr. V 420. Inspector Wilson testified that, because the
707 section was adjacent to a section that had been mined previously, there was a possibility that
the oxygen would be low or blackdamp (a mixture of carbon dioxide and nitrogen) would be
present. Tr. V 389-90. Bottle samples also indicated that the mine liberated methane. Tr. V
391-92, 426. During idle periods, methane can build up, and other unforseen hazards can
develop. See Buck Creek Coal Co., 17 FMSHRC 8, 14 (January 1995). 10 Inspector Langley
testified that the mine roof had a tendency to fall and that the mine had experienced several roof

9

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). We are
guided by the settled principle that, in reviewing the whole record, an appellate tribunal must
also consider anything in the record that "fairly detracts" from the weight of the evidence that .
supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
10

In Buck Creek, Chairman Jordan was part of the majority, which concluded on
substantial evidence grounds that a preshift violation was S&S. 17 FMSHRC at 14.
Commissioner Marks, .dissenting, concluded ·that Bilek Creek's failure to conduct _a preshift
examination had not been proven to be violative. 17·FMSHRC at 18-19.

1382

falls. 16 FMSHRC at 1701. In evaluating the presence of a hazard, the Commission has
considered conditions on a mine-wide basis. Cyprus Plateau Mining Corp., 16 FMSHRC 1610,
1614 (August 1994).
We also conclude that the fourth element of Mathies is established: injuries resulting
from the hazards posed were reasonably likely to be of a reasonably serious nature. Accordingly,
we reverse the judge's determination that the violation was not S&S. See Buck Creek, 17
FMSHRC at 14.
Conclusion
For the foregoing reasons, we affirm the judge's S&S determinations in Citation Nos.
3164716 and 3835998. We reverse his S&S determination in Order No. 4238749 and remand
accordingly for penalty reassessment.

~ 7'tl~

Arlene Holen, Cortlmissioner

1383

Chairman Jordan and Commissioner Marks, in favor of vacating and remanding in part
and reversing in part the decision of the administrative law judge:
A.

Deluge Fire Suppression System and Fire Extinguisher

The Secretary alternates between the terms •presumption" and "assumption" in proposing
his analytical framework for the fire suppression violations (see S. Br. at 7, 11 , 13; S. Reply Br.
at 1-4, 6-8) and couples that argument with his argument calling for a presumption of S&S as to
all preshift violations. We see a significant distinction between the two forms of relief requested
in this case and therefore have separately analyzed the issues.
Notwithstanding the Secretary's imprecision in describing the relief he seeks regarding
the fire suppression violations, we conclude that the Secretary is merely urging the Commission
to make a factual assumption when evaluating whether a fire suppression violation is S&S. The
assumption sought is not regarding a fact that is in issue. The Secretary must still prove that
there was no functioning deluge system or fire extinguisher and that the absence of the fire
suppression ·equipment at the cited location creates a risk of a serious injury . 1 Nor is the
assumption related to a legal issue, as was the case in Consolidation Coal Co., 8 FMSHRC 890
(June 1986), aff'd, 824'F.2d 1071 (D.C. Cir. 1987), wherein the Commission recognized a
rebuttable presumption of S&S regarding violations of30 C.F.R. § 70.lOO(a), the respirable dust
standard . Rather, the assumption sought by the Secretary is to evaluate the effect of the violation
under the circumstances and conditions in which the standard was intended to provide protection.
In this case, where a fire deluge system was not provided and where a fire extinguisher was not
provided, the assumption sought is the existence of a fire or explosion.
The judge determined that Manalapan violated section 75.1101 because the 006 section
belt drive was not provided with a deluge fire suppression system. 16 FMSHRC at 1691 . Among
otlier facts, the judge accepted the MS HA-inspector's testimony that: (1) numerous ignition
sources existed at the cited location, including belt drives, rollers, belt boxes, cables, drive rollers
and bottom rollers and (2) that the cited area also contained accumulated float dust and loose
coal, float dust in the starter box, the absence of a sensor line and the absence of a fire hose. Id.
at 1692. Notwithstanding the foregoing, the judge concluded "[A]lthough they (sic) were
potential fire sources present, there is no evidence to predicate a conclusion that these sources
were in such a physical condition as to render an ignition or explosion reasonably likely to have
occurred." Id. at 1692-93 (emphasis in original). Therefore, he determined that the violation was
not S&S.

1

Notwithstanding Commissioner Marks' disagreement with the Commission's existing
test in Mathies Coal Co., 6 FMSHRC 1(January1984) (see US. Steel Mining Co., 18 FMSHRC
862, 868-75 (June 1996) (Marks, M., concurring)), this opinion is rendered within the existing
Mathies framework of S&S analysis.

1384

Regarding the violation of section 7 5.1109(c)( 1), the judge determined that Manalapan
had failed to equip its front-end loader with a portable fire extinguisher. 16 FMSHRC at 1700.
The judge accepted the MSHA inspector's testimony that the loader was being used in an area
that contained battery wires, oil hoses, brake lines containing combustible brake fluid, as well as
combustible engine and hydraulic oil. Id. at 170 I. Notwithstanding the foregoing, the judge
concluded, "The record establishes the presence of only potential fire ignition sources. I thus
find that it has not been established that the violation was significant and substantial." Id
(emphasis in original).
In reaching the foregoing negative S&S conclusions, the judge failed to address the
Secretary's argument that consideration of the seriousness of fire suppression violations should
be made within the context of the circumstances in which the required fire suppression
equipment is to be used, i.e., in the event of a fire or explosion.
The Secretary has reiterated this position before the Commission. With respect to both
violations, the Secretary stresses that the standards are designed to "provide protection only in
the event of an emergency." S. Br. at 12. Therefore, the Secretary argues, the only logical
approach in evaluating\whether the violations pose an "S&S risk" is to assume that the
contemplated emergency has already occurred." Id at 11. Further, unless the analysis is based
upon that assumption, "violations of these critically important standards will rarely if ever be
found to be significant and substantial, because the likelihood of the emergency occurring should
always be remote." Id. Underscoring his point, the Secretary notes, "Indeed, were there to be a
fire at the belt conveyor drive, the failure to have a fire suppression system at that location would
likely be an imminent danger." Id. at 11 n.6. Accordingly, the Secretary urges that in evaluating
whether a violation of this type is S&S, the Commission should recognize that:

The likelihood ofa fire or explosion occurring is not the relevant
question. Rather, the relevant question is, given the occurrence of
a fire or explosion, whether the failure to have any fire suppression
system ... is reasonably likely to result in serious injuries or
deaths that would not occur if a fire suppression system had been
installed as required by the standard.

Id. at 13-14 (emphasis supplied).
If such an approach is adopted, the Secretary recognizes that:
Assuming the occurrence of the underlying emergency, i.e., a fire
or explosion, does not itself establish the Secretary's prima faci[e]
case on the third element of the Commission's significant and
substantial test [Mathies]. The Secretary is still required to
demonstrate that, assuming the underlying emergency, the failure

1385

conveyor belt or a fire extinguisher on a front-end loader is
reasonably likely to contribute to an injury under the circumstances
presented by each case. Once the Secretary has established his
prima faci[e] case, the burden shifts1 to the mine operator to
produce evidence that the violation will not result in an injury. The
operator could meet this burden by showing that there were
effective alternative means of combating the hazard addressed by
the violation cited. In other words, the mine operator could rebut
the presumption by proving that there were equivalent alternate fire
suppression systems or equipment available. Whether any
alternative fire suppression system or equipment was equivalent to
the protections provided in the safety standard which was violated
would be a matter for the judge to decide on the basis of all of the
evidence.
S. Reply Br. at 6-7 (emphasis supplied).
We have considered the Secretary's argument and Manalapan's opposition to it and we
conclude that the Secretary is entirely correct in arguing that the only logical way to evaluate the
gravity or seriousness of a fire suppression violation is to consider the effect the violation would
have in the event that the occasion for its use arises. This is, in our opinion, no different from the
situation where an MSHA inspector alleges an S&S violation after determining that a truck is
being operated without an emergency brake. In evaluating the seriousness of that violation we
routinely consider the risk presented to the equipment operator and to the other miners working
or traveling near the cited truck should the need arise to use the emergency brake. Clearly the
truck can operate without the use of an emergency brake, just as the coal carrying belt and the
end-loader functioned properly without the use of the fire suppression equipment. However, in
gauging the seriousness of the violation, we consider what would happen if the truck, while
being operated during continued mining operations, required the use of the emergency brake, i.e.,
if an emergency arose! See US. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
Similarly, the Secretary urges that we apply that approach when evaluating the seriousness of a
fire suppression violation. To do otherwise is to fail to recognize and adhere to the overriding
mandate of the Mine Act -- to ensure that we construe the law in a fair way that provides the
maximum protection to our nation's miners.

2

The Secretary's imprecision here and at page 2 of his reply brief must be clarified.
Although the "burden shift[s]," it is NOT a shifting of the burden of proof. That burden always
remains with the Secretary. The referenced shift to the operator to "produce evidence" relates to
the burden ofgoingforwardwith evidence intended to rebut the Secretary's evidence.

1386

Regrettably, in rejecting the Secretary's po.sition our colleagues do not appear to have
recognized the logic of the argwnent. When distilled to the core, the reasons.offered by
Commissioners Holen and Riley for their rejection of the Secretary's call for an asswnption are:
( 1) the Secretary urges the Commission "to preswne an emergency
for an undefined and potentially large class of health and safety
standards without indicating what situations under those standards
would qualify as an emergency;"
(2) the Secretary' s need for the preswnption here is not like the need
demonstrated in Consolidation;
(3) the facts in this case "appear[] to render [the Secretary's] suggested
S&S framework irrelevant to the deluge system violation."
Slip op. at 6.
For the reasons set forth below, we conclude that our colleagues' failure, or refusal, to
adopt the Secretary's argwnent is grounded on irrelevancies and a misunderstanding of the
Secretary's position.
Notwithstanding the vague perception of the issue offered by our colleagues, it is clear
that the Secretary's argument relates to the one circumstance delineated in this case, i.e., the
asswnption of a fire or explosion when considering whether fire suppression violations are S&S.
If our colleagues are troubled by the prospect that future cases may present the issue of what
constitutes a fire suppression violation, or what type of equipment constitutes fire suppression
equipment, that is irrelevant to this case and should not influence the disposition here. There
seems to be no dispute by the parties that the cited equipment is fire suppression equipment.
The second basis set forth by Commissioners Holen and Riley for their rejection of the
Secretary's call for the asswnption of a fire or explosion is simply that this case is unlike the
circumstances presented in Consolidation. · "[T]he Secretary has failed to develop a record that
establishes the need for such a change in the law." Slip op. at 6. Do our colleagues need some
docwnentation demonstrating what happens when a belt fire occurs in a mine where there is no
deluge fire suppression protection? Do they seriously doubt that the absence of that protection
heightens the risk of injury and death to the miners exposed to that unprotected condition? We
do not. Accordingly, we find this concern of our colleagues to be misguided and unfounded.
Finally, and most disturbing, our colleagues grossly misapprehend the Secretary's
argument which aptly demonstrates that the asswnption of a fire or explosion would not, by
itself, establish that the violation is S&S -- that the operator would still have the opportunity to
defend itself from the charge.
[E]ven assuming the occurrence of a fire, a violation of [section]
75.1101 might not be significant and substantial. For example, if

1387

other fire extinguishers were present, the failure to have a delugetype fire suppression system might not result in a reasonable
likelihood of serious injuries [or deaths depending upon all of the
circumstances surrounding the violation.)
Slip op. at 6, quoting S. Br. at 14 n.7.
In quoting the foregoing, our colleagues conclude that the Secretary's observation
"appears to render his suggested S&S framework irrelevant to the deluge system violation." Slip
op. at 6. With all due respect, our colleagues have failed to comprehend the argument and have
completely inverted its purpose. We find the Secretary's description of how the assumption
would be applied to be not only relevant, but also persuasive, in that it assures us that the
adoption of such a framework would not be at the expense of fairness to all cited operators.3
For the foregoing reasons, we conclude that the assumption of a fire or explosion should
be made when the Commission evaluates whether a fire suppression violation is S&S. In light of
the above, we would vacate the judge's conclusions on these issues and remand for an analysis
that applies the foregoing legal conclusions.
B.

Preshift Examination

The Secretary argues that the Commission should conclude that a failure to conduct a
preshift examination is presumptively S&S. S. Br. at 15-21. The Secretary further contends that
the judge incorrectly applied the criteria in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984);
he notes that the judge relied on an inspection performed after the citation, which showed no
hazardous conditions. S. PDR at 16-17.

a

3

Manalapan argues that it is a violation of due process to assume the existence of fire
in determining whether the fire suppression violations were S&S. M. Br. at 7-16. We reject this
assertion.
Manalapan's contentions regarding the fire suppression system violations are completely
misplaced because the Secretary is not even asking us to create a presumption in this context. He
is simply asking us to assume a fact -- the existence of a fire -- when examining the third element
of the Mathies test (a reasonable likelihood that the hazard contributed to will result in an injury).
The Secretary admits that this will not establish his prima facie case on the third element of the
S&S test. S. Reply Br. at 6-7. He acknowledges that he would still be required to show that,
assuming the fire, the failure to have a deluge system or fire extinguisher is reasonably likely to
contribute to an injury. Id. The operator would of course have the opportunity to rebut this
evidence by demonstrating that the violation will not result in injury. Accordingly, we find
Manalapan's due process argument in this context inapposite.

1388

Manalapan argues that the presumption the Secretary seeks violates due process because
there is no rational connection between the violation and ·t he presumption of reasonable
likelihood of serious injury. M. Br. at 10-11. .Manalapan also asserts that the presumption is
arbitrary because it is contrary to the record facts. Id at 11-12. Manalapan also notes that the
Secretary did not raise his argument that the failure· to conduct a preshift examination is
presumptively S&S before the administrative law judge. Id. ·at 18.
We first address Manalapan' s contention that we may not consider the presumption
argument because the Secretary did not raise it before the administrative law judge. Although
the Mine Act generally precludes us from reviewing issues not raised before the judge, there is an
exception "for good cause shown." 30 U.S.C. § 823(d)(2)(A)(iii). Here, the "good cause"
standard is met because the issue before us "raises a legal question fundamental in this and future
cases." Brennan v. Occupational Safety & Health Review Comm 'n, 511 F.2d 1139, 1143 n.4
(9th Cir. 1975). The question of whether a violation of the preshift standard is-. s&S comes·
before the Commission on a regular basis. Because, as we explain below, the traditiOnal method
of determining S&S is not appropriate for this particular type of violation, we must provide
timely guidance on this question.
'

The Mine Act'~ bar against appellate review of issues not first decided by a trial judge is
based on the need for "further factfinding where warranted" and the desire "to adequately
develop the record." S. Rep. No. 181, 95th Cong., 1st Sess. 49 (1-977), reprinted in-Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History ofthe Federal Mine Safety and Health Act of 1977, at 637 ( 1978). We wholeheartedly
embrace·this principle. However, the question of whether or not to create this legal presumption
does not require any additional factfinding. We can conceive of no additions to the ·record that ·
are necessary for us to rule on this question. We are confident that the statutory provisions,
legislative history, and the briefs submitted clearly suffice to make this determination.
Although generally bound by the sanie constraints, federal appellate courts have
demonstrated a flexible approach in this area. See, e.g., State ofNew-Jersey, Dept. ofEduc. v.
Hufstedler, 724 F .2d 34, 36 n.1 (3d Cir. 1983) ("[O]ur practice has been to hear issues not raised
in earlier proceedings when special circumstances warrant an exception to the general rule.
[citations omitted]. Since [the· issue raised] is singularly within the competence of appellate
courts and is not predicated on complex factual determinations, we will consider the ...
argument ...."); R.R. Yardmasters ofAmerica V. Harris, 721F.2d1332, 1337 eo:c. Cir. 1983)
("[B]ecause the issue . . . is one of law, requires no further factual development, has been fully
briefed by both parties, and can be resolved beyond any doubt, we will exercise our discretion to
address the issue."). Accordingly, because the issue is a legal one, to which Manalapan has fully
responded; we agree to address it on the merits. See Bjes v. Consolidation Coal Co., 6 FMSHRC
1411, .1417 (June 1984).
The S&S terminology is taken from section I 04(d)(-1) of the Act and refers to more
serious violations. A violation is S&S if, based on the particular facts surrounding the violation,

138.9

there exists a reasonable likelihood that the hazard contributed to will result in an injury or
illness of a reasonably serious nature. Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825
(April 1981). In Mathies, the Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: ( 1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
6 FMSHRC at 3-4. (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,
135 (7th Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, I 03 (5th Cir. 1988)
(approving Mathies criteria).
To evaluate th~ Secretary's request for a presumption that a failure to perform a preshift
inspection is S&S, we first review the rationale underlying the establishment of presumptions by
courts and administrative agencies. There are several reasons why courts and agencies create
presumptions. Presumptions are created to remedy an imbalance due to one party's superior
access to evidence, because of notions of probability (when a judge believes that proof of fact B
makes the inference of the existence of fact A probable) or for social policy reasons. 2 Kenneth
S. Broun et al., McCormick on Evidence § 343, at 454-55 (4th ed. 1992). Most presumptions are
created for a combination of these reasons. Id
The creation of a legal presumption is not a novel concept in mine litigation. For
example, the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (1994), contains a rebuttable
presumption that a miner who worked for 25 years or more in a coal mine shall be entitled to
black lung benefits unless it is established that he or she was not disabled due to pneumoconiosis.
In rejecting a due process challenge to this presumption, the Third Circuit stated:
By [enacting the presumption], Congress recognized the
difficulties involved in diagnosing respiratory impairments due to
coal mine employment and the problems inherent in proving
survivors' claims. Congress acted rationally by enacting the
rebuttable presumption contained in§ 41 l(c)(S).
US. Steel Corp. v. Oravetz, 686 F.2d 197, 202 (3d Cir. 1982). See also Usery v. Turner Elkhorn
Mining Co. , 4 28 U.S. 1 ( 1975) (upholding the constitutionality of sections of the Black Lung ·
Benefits Act providing that a miner with 10 years' employment in the mine suffering from
pneumoconiosis is presumed to have contracted th~ disease from his em.ployment and that if a

1390

miner with 10 years' mining employment dies from a respiratory disease he or she is presumed to
have died from pneumoconiosis).
The Commission itself embraced the concept that violations of certain standards may be
presumptively S&S in its opinion in Consolidation. In Consolidation, the Comn:iission held that,
instead of requiring the .Secretary to pro:ve all four prongs of the Mathies·test in every case
involving a violation of section 70.1 OO(a) (the respirable dust standard), it would institute a
rebuttable presumption that the violation is S&S. 8 FMSHRC at 899. The Commission based its
creation of this presumption on "the nature of the health hazard at issue, the potentially
devastating consequences for affected miners, and strong concern expressed by Congress for
eliminating respiratory illnesses in miners." Id. Similar policy and evidentiary concerns lead us
to the conclusion that a presumption of S&S is warranted when an operator is cited for failure to
conduct a preshift inspection.
The preshift inspection requirement is the linchpin of Mine.Act safety protections.
Without a timely preshift inspection, unwary miners may be sent into areas containing hazardous
conditions. Congress explicitly acknowledged the importance of the preshift inspection by
making it a longstanding statutory mandate, dating back to the Federal Coal Mine Safety Act of
1952, 30 U.S.C. § 471\~t seq. (1955). These provisions were strengthened in the Federal Coal
Mine Health and Safety.Act of 1969, 30 U.S.C. § 801 et seq. (1976), and carried over in identical
fashion to the Mine Act. The Senate Report on the 1969 Coal Act emphasized the importance of
these inspections, stating that "[c]hanges occur so rapidly in the·mines that it is imperative that
the examinations be made as near as possible to the time the workmen enter the mine." S. Rep.
411, 91st Cong., 1st Sess. 57 (1969), reprinted in Senate Subcommittee on Labor, Committee on
Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History ofthe Federal Coal
Mine Health and Safety Act of 1969, at 183 (1975) ("Coal Act Leg is. Hist.").
Both the Senate Report and the Conference Report emphasized:
No miner may enter the underground portion of a mine until the
preshift examination is complet~d. the examiner's report is
transmitted to the surface and actually recorded, and until
hazardous conditions or standards violations are corrected.
Coal Act Legis. Hist. at 183 and 1610.

In its recent 1996 revision of safety standards for the ventilation of underground coal
mines, the Mine Safety and Health Administration acknowledged that:
[t]he preshift examination is a critically important and
fundamental safety practice in the industry. .It is a primary means
of determining the effectiveness of the mine's ventilation system

1391

and of detecting developing haz.ards, such as methane
accumulations, water accumulations, and bad roof.
61 Fed. Reg. ~790 (1996).4
In a previous discussion of an earlier version of this standard, MSHA stated :
An examination of these areas [to be preshifted] allows miners on
the oncoming shift to be notified if haz.ards exist and allows
corrective actions to be taken. In addition to methane
accumulations and oxygen deficiency, other haz.ards that can be
detected during the preshift examination are loose roof or ribs,
water accumulation that affects air courses or escapeways,
electrical haz.ards from trolley wires, and fire haz.ards from
damaged or improperly operating belt conveyors.

57 Fed. Reg. 20893 (1992).
In its comment cm the March 1996 final rule, MSHA acknowledged several accidents
which occurred at least in part because the area in question received no examination or only an
inadequate examination under the standards in effect at the time.5 61 Fed. Reg. 9798 (1996).
MSHA noted that the preshift and supplemental exam requirements of the rule it was
promulgating "would have served well to prevent these accidents." Id.

4

Prior to 1992, the preshift requirement was located at 30 C.F.R. § 75.303 and tracked
the statutory language at 30 U.S.C. § 863(d)(l). In 1992, MSHA revised the safety standards for
ventilation of underground coal mines. The preshift standard was redesignated at section
75.360(a) and, instead of one continuous paragraph, the requirements were separated into various
subsections. The language was updated, and the areas to be examined were clarified and
expanded. The 1996 revision further clarified the areas subject to the preshift requirement and
the manner in which the examination is to be performed.
5

These included explosions at Greenwich Collieries No. 1 Mine in February 1984, in
which 3 miners were killed; the explosion at Day Branch Mine in 1994 where 2 miners died, and
an ignition at the Loveridge No. 22 Mine in 1992 that burned 1 miner. 61 Fed. Reg. 9798
(1996).
MSHA also recognized that explosions at the Red·Ash Mine in 1973, the Scotia Mine
in 1976, the P&P'Mine in 1977, the Ferrell #17 Mine in 1980, the Greenwich #1Minein1984,
and the Day Branch No. 9 Mine in 1994, were situations in which miners were sent into an area
that had not been preshift-inspected. 61 Fed. Reg. 9794 (1996).

1392

In Emerald Mines Corp., 7 FMSHRC 437 (March 1985) (ALJ), Administrative Law
Judge Broderick recognized the importance of the preshift examination in the arsenal of
protections afforded to those working in the mines. In holding that the failure to conduct a
preshift inspection was S&S, he stated that:
[t]he whole rationale for requiring preshift examinations is the fact
that underground coal mines are places of unexpected,
unanticipated haz.ards: roofhaz.ards, rib haz.ards, ventilation and
methane haz.ards. I conclude that failure to make the required
preshift examination of active workings in an underground coal
mine contributes to "a measure of danger to safety" which is
reasonably likely to result in a reasonably serious injury.
7 FMSHRC at 444.
This Commission has recently had occasion to pronounce the preshift requirement
"unambiguous" and of "fundamental importance in assuring a safe working environment
underground." Buck Creek Coal Co., 17 FMSHRC 8, 15 (January 1995). Thus, the policy
considerations, as articulated by Congress, MSHA and the Commission, lead us to conclude that
an S&S presumption in this area is appropriate.6
Evidentiary considerations lead us to adopt the presumption as well. Violations of the
preshift requirement generally do not fit the Mathies format because the mandatory safety
standard is designed to detect and correct potential, unknown haz.ards, whereas the Mathies test
demands evidence of demonstrated dangers which will likely result in serious injury. Arguably,
under the Mathies test, the only way the Secretary should prevail in proving a preshift violation
S&S is to present evidence that the operator's failure to conduct the required exam resulted in the
miners being exposed to a haz.ardous condition. Only in this way could MSHA prove "a measure
of danger to safety . . . contributed to by the violation" and demonstrate a "reasonable likelihood
that the haz.ard contributed to will result in an injury." Mathies, 6 FMSHRC at 3-4.
Except on rare occasion, it is doubtful whether MSHA would be able to meet this
evidentiary burden. Unless the inspector has examined the area himself and is waiting
underground to greet the miners, he will not be in a position to describe the conditions that
actually confronted the miners when they arrive~ in the area in question. Violations of the

6

Several state mining laws include preshift requirements that parallel the federal
mandate. A review of the West Virginia mining statute, for example, reveals the singular
importance of the preshift examiner or "fire boss." Adequate examinations by the fire bosses are
considered so essential that while performing their duties the fire bosses "shall have no superior
officers, but all the employees working inside of such mine or mines shall be subordinate to them
in their particular work." W. Va. Code§ 22A-2-21 (1994).

1393

preshift requirements are generally discovered only after the miners are pennitted to work in the
unexamined area. Sometimes the violation is detected when the inspector de<?ides to review the
operator's preshift examination reporting book. See, e.g., Emerald Mines, 7 FMSHRC at 442.
Sometimes it is discovered when the inspector notices the lack of the examiner's initials in the
underground area in question or, as here, when the inspector observes that the person who
allegedly conducted the preshift exam did not have any of the proper examination equipment.
Tr. V 372. By the time the inspector detects the violation, hours, days or even weeks may have
passed and the conditions present at the time the inspector issues the citation may bear little
resemblance to those present at the time the violation occurred. Moreover, there would be no
way for MSHA to know if the lack of hazardous conditions at the time the violation is detected is
a result of corrective actions the operator may have taken after miners entered the unexamined
area. Because of these factors, inspectors will rarely be able to ascertain whether specific
hazards existed at the time of the preshift violation.
Just as the Commission's respirable dust presumption is based on the fact that "the
development of respirable dust induced disease is insidious, furtive and incapable of precise
prediction" (Consolidation, 8 FMSHRC at 898), the failure to perfonn a preshift inspection will,
in many cases, expose miners to potential serious hazards but yet deprive the inspector of any
feasible way to establish that the specific hazards existed when the shift in question entered the
mine. See also Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 158 (1987) (when it enacted
the statutory presumption in the Black Lung Act, "Congress was aware that it is difficult for coal
miners whose health has been impaired by the insidious effects of their work environment to
prove that their diseases are totally disabling and coal mine related, or that those diseases are in
fact pneumoconiosis"). Similarly, in a case dealing with the unwarrantable failure aspects of a
section 104(d) violation, the Commission held "[t]o read out of the Act the protections and
incentives of section 104(d) because an inspector is not physically present to observe a violation
while it is occurring distorts the force and blunts the effectiveness of section 104(d). We discern
no warrant for such a formalistic approach." Nacco Mining Co., 9 FMSHRC 1541 , 1546
(September 1987).
Although the Secretary in this case was unable to adduce evidence of hazardous
conditions awaiting the miners when they entered the No. 707 section, the Secretary did present
evidence that the mine liberated methane, had a roof which could fall, and includ~ a mined out
area which could contain an oxygen-deficient atmosphere. In voting to reverse the judge, our
colleagues have necessarily concluded that this evidence compels a finding that an injury
producing event was reasonably likely to occur as a result of Manalapan's violation. We submit
that the conditions relied on by our colleagues would apply to virtually any underground mine.
Indeed these are the very conditions that the Secretary and Congress have cited in explaining the
rationale for imposing the preshift requirements in the first place.
We take issue, not with our colleagues' finding of S&S, but with how they choose to
reach their conclusion. We suggest that, in spite of their protestations to the contrary, our
colleagues have for all practical purposes applied a presumption of S&S to violations citing a

1394

failure to conduct the preshift exam. If the Conunission will uphold the Secretary's S&S
designation because the mine is capable of liberating methane (even though the Secretary
presented no evidence. that the unexamined area contained methane, Tr. V 388, 420), and because
the roof may be unstable (even though the Secretary presented no evidence that the roof in the
unexamined area posed a hazard, Id.), and because adjacent mined out areas could contain
dangerous atmosphere (even though the Secretary presented no evidence that such areas were
actually oxygen-deficient or that miners were even ltkely to encounter the atmosphere, Id.), it is
disingenuous to claim, as our colleagues do, that we are applying Mathies, which requires that
the S&S determination be based on "the particular facts surrounding that violation ... ."
Mathies, 6 FMSHRC at 3 (citing Nat'/ Gypsum, 3 FMSHRC at 825).7 Thus, because of the
inherent potential hazards existing in underground mining, we conclude that violations of the
preshift standard are presumptively S&S. Moreover, to claim to decide this issue under Mathies,
as our colleagues do, is to engage in a transparent fiction that can only foster more confusion.8
Our decision to apply a presumption of S&S to preshift violations does not end our
inquiry. In the instant case, the judge vacated the Secretary's S&S determination because the
inspection c~nducted immediately after the order revealed no hazardous conditions in the
affected area of the mine. 16 FMSHRC at 1701-02. We must therefore address the issue of
whether the operator can rebut the S&S presumption for preshift violations by evidence tending
to prove that the area in question did not contain hazards when the miners entered it. Assuming
the judge is allowed to consider the condition of the area at noon, we believe a reasonable mind

7

Moreover, it is difficult to see how our colleagues can square their S&S analysis here
with their recent holding in Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996), in which
they restricted consideration of the S&S nature of a violation to surrounding circumstances
which were themselves also violative. They refused to consider evidence of a massive
accumulation in an inactive area because it did not constitute a violation. Id. at 511. Although a
mine's ability to liberate methane, and its potential to contain unsafe roof and dangerous
atmosphere are conditions which can pose hazards to miners, they are not necessarily violations.
Indeed, one could argue that, by their holding today, our colleagues have overruled Jim Walter
Resources, sub silentio.
8

Although Manalapan has correctly cited the standard for a due process violation, it
applied it incorrectly. We agree that due process is denied if a presumption does not have "some
rational connection between the fact proved and the ultimate fact presumed, and [if] the influence
of one fact from proof of another [is] ... so unreasonable as to be a purely arbitrary mandate."
M. Br. at 9-10~ citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28 (1976). In 'light of our
extensive discussion regarding the importance of the preshift and its role in preventing accidents,
supra at 17-18, we believe that it is clearly rational to assume that if an operator fails to conduct
a preshift inspection (the fact proven), that there is a reasonable likelihood of serious injury to the
miners, and thus an S&S violation (the fact presumed). We therefore find that this presumption
does not violate due process.

1395

might accept the demonstrated lack of hazards at that time as a basis for inferring that dangerous
conditions did not exist when the miners entered the area four hours earlier. While it is true
many hazardous conditions are transient in nature, a judge would not be unreasonable in
inferring, for example, that a roof that was weak or unstable at 8:00 a.m. would not (without
human intervention) appear safe at noon. Likewise, if a disruption in the ventilation had caused
methane to accumulate at 8:00 a.m. then, unless the problem were corrected, it is reasonable to
conclude that methane would be present in an even greater amount four hours later. A lack of
methane and roof problems at noon could therefore provide a basis for inferring the lack of
methane and roof problem at 8:00 a.m. Substantial evidence means "such relevant evidence as a
reasonable mind might accept as adequate to support [the judge's] conclusion." Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), quoting Consolidated Edison
Co. v NLRB, 305 U.S. 197, 229 (1938). True, the evidence of the conditions at noon would have
to be weighed against MSHA's evidence regarding the mine's potential for methane liberation
and the propensity of the roof to fall, but we are not able to say that the only conclusion a
reasonable mind weighing all the evidence could reach is that an injury-producing event was
likely to occur at the time the miners entered the area in question.
That being said, however, we agree with our colleagues that the judge's reliance on the
condition of the area at noon is incorrect as a matter of law. We reach our determination not, as
our colleagues conclude, because such evidence results from a "post-citation event[]" (slip op. at
8), but because allowing such evidence to rebut the S&S presumption would eviscerate the
important prophylactic purpose behind requiring preshift examinations in the first place.
Whether a preshift violation is S&S should be determined on the basis of the serious potential for
harm that can confront miners when they enter an unexamined area of an underground mine.
The risk associated with the operator's failure to preshift the area should be assessed not on the
basis of the condition of the area itself but on the action of assigning miners to an unexamined
area. Would we not assess the risk associated with playing Russian roulette by considering the ..
potential for harm involved in holding a loaded gun up to one's head and pulling the trigger,
rather than by considering what happened after the trigger was pulled? We conclude that the
determination of risk to be accorded to a failure to conduct the preshift exam should not turn on
the fortuitous circumstance that the unexamined area did not contain the hazardous conditions
the exam was designed to detect. 9

9

This was the approach taken by Judge Broderick who, when he reviewed the S&S
designation on a preshift violation, posed the following query:
How does one evaluate the hazard to which the violation
contributes? By what is disclosed on an examination of the area
after the examination? Emerald contends that this is the test. But
the hazard and the violation here involve, not the condition of the
area as such, but rather the assigning of miners to work in an
uninspected area. . . . Can it seriously be argued that failure to

1396

Excluding post-hoc evidence because of its potential to undermine the prophylactic
purpose of the preshift exam is consistent with several provisions of the Federal Rules of
Evidence that exclude certain types of evidence based mainly on policy considerations. For
example, pursuant to Fed. R. Ev id. 407, evidence of repairs made after an accident is not
admissible as evidence of negligence before the accident. This is based on the policy that
encourages potential defendants to fix hazardous conditions without fearing these actions will be
used as evidence against them. 10 James W. Moore, Moore's Federal Practice§ 407.02, at IV152 (2d ed. 1996); 29 Am. Jur. 2d Evidence§ 464, at 534 (1994). Similarly, Fed. R. Evid. 408
excludes evidence of settlement discussions to promote the public policy "favoring the
compromise and settlement of disputes" (10 James W. Moore, Moore's Federal Practice
§ 408.01[9], at IV-167 (2d ed. 1996)) and to "foster full and free discussion and negotiations in
order to encourage out-of-court settlements" (29 Am. Jur. 2d Evidence § 508, at 588 (1994)).
Finally, Fed. R. Evid. 409 states that evidence of payment or promises to pay medical expenses
is not admissible to prove liability for the injury. The rule is based on policy considerations and
"humanitarian motives" (10 James W. Moore, Moore's Federal Practice§ 409.02, at IV-176 (2d
ed. 1996)), because to hold otherwise "would tend to discourage assistance to the injured
individual'' (29 Am. Jur. 2d Evidence § 480, at 560 (1994)). Accordingly, our refusal to take into
account evidence con~rning the lack of hazards in the relevant area in determining whether a
failure to preshift is S&~ is based on equally important policy concerns, as we articulated
above. 10

perform one of these examinations is not significant and substantial
if a post-violation examination does not show hazardous
·
conditions?

Emerald Mines, 7 FMSHRC at 444.
10

To the extent the Secretary suggests that the presumption of S&S may be rebutted by
evidence showing that hazards did not exist in the unexamined area (S. Reply Br. at 4-5), we
reject such suggestion for the reasons enunciated above. To the extent the Secretary suggests
that other theoretical bases exist for rebutting an S&S presumption (S. Br. at 19 n.11), we decline
to issue a declaratory type opinion in this case.

1397

Conclusion
In light of the forgoing, we would vacate and remand the judge's S&S determinations
pertaining to Citation No. 3164716 and No. 3835998. We would reverse his S&S determination
pertaining to Citation No. 4238749 and remand for reassessment of penalties.

~ L~
Mi~rdan,
ct#fl1l311

'~.(:~~
Marc Lincoln Marks, Commissioner

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Susan C. Lawson, Esq.
Buttermore, Turner, Lawson & Boggs
111 South First Street
Harlan, KY 40831
Administrative Law Judge Avram Weisberger
Federal Mine Safety and Health Review Commission
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041

1398

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

August 1, · 1996

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

CIVIL PENALTY PROCEEDING
Docket No. SE 96-9-M
A. C. No . 08-01058-05528
White Rock Quarries

v.
VECELLIO & GROGAN
INCORPORATED,
Respondent

DECISION
Appearances:

Before:

\ Karen E Mock, Esq., Office of the Solicitor,
·u. s. Department Of Labor, Atlanta, Georgia,
for Petitioner;
Roger L. Sabo, Esq . , Schottenstein, Zox &
Dunn, Columbus, Ohio for Respondent.
Judge Merlin
Statement of the Case

This case is a petition for the assessment of a civil
penalty filed by the Secretary of Labor against Vecellio &
Grogan, Incorporated, under section 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820. A hearing was
held on May 8, 1996, and the parties have submitted post hearing
briefs.
Section llO(a) of the Act, 30 U.S . C. § 820(a), provides that
a mine operator of a facility covered under the Act where_. a
violation of a mandatory health or safety standard occurs, shall
be assessed a civil penalty. It is well settled that the Secretary has the burden of proving a violation. Keystone Coal Mining
Corp., 17 FMSHRC 1819, 1838 (November 1995); Southern Ohio Coal
Co . , 14 FMSHRC 1781, 1785 (November 1992); Garden Creek Pocahontas, 11 FMSHRC 2148, 2152 (November 1989); Consolidation Coal
Co . , 11 FMSHRC 966, 973 (June 1989); Jim Walter Resources, Inc.,
9 FMSHRC 903, 907 (May 1987) . Where a violation is proved,
section llO(i), 30 U.S.C. § 820(i), sets forth six factors to be

1399

considered in determining the appropriate amount of a civil
penalty as follows : gravity, negligence , prior history of violations, size, ability to continue in business, and good faith
abatement.
The alleged violation in this case is contained in a citation
issued under section 104(d) (1) of the Act, 30 U.S.C. § 814(d) (1).
This section provides that where there is a violation that is both
significant and substantial and due to unwarrantable failure, a
citation shall be issued containing such findings.
If within 90
days the Secretary finds another violation due to unwarrantable
failure, a withdrawal order must be issued.
The subject citation charges a violation of section 56 . 12071
of the Secretary' s mandatory standards , 3 0 C.F.R. § 56.12071 ,
which provides as follows:
When equipment must be moved or operated near
energized high-voltage powerlines (other than trolley
lines) and the clearance is less than 10 feet, the
lines shall be deenergized or other precautionary
measures shall be taken.
Citation No. 4088141, dated April 13, 1995, charges a
violation for the following condition or practice:
A f a tal accident occurred at this mine at about
12:05 P.M. o n April 10th 1995 , when a Manitex Boom
Truck , Mo del No. 1461 , boom came in contact with,
13 , 2 00, Volt overhead Power Line . The victim was
holding onto the boom cable preparing to hook up for a
lift when the extended boom was swung into the power
line resulting in an electrocution .
The foreman (victim) was aware of the vicinity of
the power lines and was also directing the boom operator by hand signals, this is an unwarrantable failure.
The inspector who issued the citation found the vioiation
was significant and substantial and due to high negligence.
At the hearing the parties agreed to the following
stipulations (Tr. 5-6):
1. The operator is the owner and operator of the
subject mine , and for purposes of this proceeding the

1400

operator is White Rock Quarries, a division of Vecellio
& Grogan , Inc.;
2.
The operator and the mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act
of 1977;

3.

I have jurisdiction of this case ;

4 . The inspector who issued the subject citation
was a duly authorized representative of the Secretary
of Labor;
5 . A true and correct copy of the subject citation was properly served upon the operator;
6. Payment of a penalty will not affect the
operator' s abi lity to continue in business;
7.
ment;

The operator demonstrated good faith abate\

8. The operator has a low history of prior violations for an operator its size;
9.

The operator is medium in size;

10. The power lines identified in the subject
citation were a three phase wire , 13 , 200 volts, and not
de-energized at the time in question.
Statement of Facts
White Rock Quarries, where the fatality occurred, is a
limestone quarry that has been in operation for approximately 10
years (Tr. 56). The limestone is in a lake and respondent hires
a blasting company to do the shooting which is the first step in
the extraction process (Tr. 56). When blasting is completed,
respondent uses draglines sitting on the lake to remove the
material and then leaves i t on the bank to be carried to the bag
plant (Tr·. 56, 169). Caterpillar or Euclid 85 ton trucks haul
the material from the lake to the aggregate or processing plant
where the material is broken down into various sizes and fed onto
different belts depending on the size desired (Tr. 57). The
trucks go up a 400 foot ramp which rises about 65 or 70 feet (Tr .
29, 59). When they reach the top of the ramp, the trucks back

1401

into the primary crusher where the truck beds are raised and the
loads deposited (Tr. 59-60). The ramp is located next to the
parts storage yard (Tr. 27, 30-32, 180).
In early February 1995, Florida Power and Light, at the .
request of respondent, installed a three phase power line with a
voltage of 13,200 volts (Tr. 21-22, 25-26, Stip . 10). The power
was needed to assemble an electric shovel (Tr. 22). Florida
Power decided where the line would go and respondent agreed to
the location (Tr . 24-25) . The line ran along the toe of the
slope created by the ramp and along the edge of the parts storage
area (Tr . 27 , 36-38) . The weight of the evidence indicates that
the power line passed over an area immediately adjacent to that
part of the storage area where mantels were kept (Tr. 28, 35, 3940, 139). Mantels are liners used in the crushing process (Tr .
61) .
Before the power lines were installed, the operator's
employees were told about their installation (Tr. 26-27 , 231).
Several meetings were held to discuss the lines (Tr . 26-_27, 181).
The employees ~ere
told to be careful around. the lines (Tr. 222,
\
230-231). As a \ general matter, safety meetings were held weekly
and safety materials, including the Employment and Safety Policy
Handbook, were given to new employees (Tr. 51, 65, 217, Exhs . RA, R-B).
The corporate safety director furnished foremen with a
list of suggested topics for the meetings (Tr. 27) . Also, each
new employee was placed with an experienced employee for a
minimum of 40 hours and if large equipment was involved, the
period could be longer. An employee would be suspended for three
days for his first safety violation and terminated for his second
offense (Tr . 197-198) . Foremen were given the same training as
regular employees, but there was an increased emphasis on overall
safety supervi sion (Tr. 67 , 179). New foremen were put with
experienced foremen for two weeks and , in addition, the operations manager to whom all foreman report, spent time with foreman
trainees before they were turned loose (Tr. 174-175). Foremen
were told to make sure that areas were kept clean and safe and
that the employees worked safely in a safe environment (Tr. 179).
There were quarterly safety meetings for foremen and they were
given safety materials to hand out at their meetings with· the
employees under their supervision (Tr. 68).
The decedent, James Knapp, was the day shift foreman in
charge of production at the operator's aggregate plant (Tr. 171).
He had worked at the quarry for over seven years and had been a
foreman for six years (Tr. 69). Prior to becoming a foreman,

1402

decedent had been the aggregate plant operator from the time the
plant was opened (Tr. 176-177) . When the plant was opening and
later as foreman, decedent spent time with the operations manager, learning and going over how the aggregate plant should be
run (Tr. 177-178). He was very familiar with everything that
occurred at the plant (Tr . 177-178) . Because of his skills,
abilities, and attitude decedent was promoted to foreman (Tr .
177) . As foreman, his immediate supervisor was the operations
manager (Tr . 171). Decedent supervised 12 to 14 people and
oversaw the running of the plant, including sizing the limestone
(Tr . 69 , 70, 172) . There were seven foremen, all of whom were
working foremen and had been cross trained (Tr. 45, 70). Decedent had been cross trained in all operational matters, but his
primary responsibilities were at the aggregate end (Tr. 177). As
part of his supervisory duties, decedent conducted weekly safety
meetings (Tr . 94-96).
James Jean was a b o om truck operator who had worked for the
operator for approximately six years when t h e accident occurred
(Tr . 183, 214). First , he had been a grounds man who cleaned
things up and h~lped wherever needed , and then a mechanic ' s
helper (Tr . 215}. He subsequently b~came a boom operator and
performed that job for about three to four years before the
accident (Tr . 218). He was not a supervisor (Tr. 72). He had
gone through standard job and safety training for new employees
(Tr. 183). Decedent had trained him in all the positions he had
occupied (Tr . 216). Initially, decedent spent 40 hours with the
boom operator , going with him all over the place and showing him
everything until he was ready to do .his own work (Tr. 216) .
Decedent also trained him in the safe operation of the boom truck
(Tr. 218) . Decedent had been the boom operator's supervisor for
five or six years and they worked together three or four times a
week (Tr . 10 2, 216 , 218).
Respondent's Employment and Safety Policy Handbook requires
that when a spotter is necessary, one designated person shall do
all the signaling and use standard hand signals (Exh. R-B, p .
37). The handbook further directs that safe clearances from
electrical lines always be maintained and that allowances ··be made
for boom sway , rock or sag and for electrical line swaying.
Finally, the handbook provides that a clearance of at least 10
feet horizontally and vertically must always be maintained
between any part of the crane, loadline or load and any electrical line carrying up to 5 0 ,000 volts (Exh . R-B, pp. 38-39).
According to the manual for boom truck operators , signals shall
be as they are delineated in the manual's d~awings. Also, under

1403

the manual the signal person must be qualified by experience with
the operations , be knowledgeable of the standard signals , position himself in clear view of the operator and have a clear view
of the load, crane and operating area (Exhs. P-15, . R-I).
On April 10, 1995, decedent and the boom operator were
moving mantels from the storage yard onto the boom truck (Tr. 43,
44). As already noted, the mantels were in an area immediately
adjacent to a point directly under the 13,200 volt powerline (Tr.
28 , 35, 39-40, 139). Decedent directed the operation (Tr. 44).
The boom operator swung the boom to pick up the first mantel
without receiving hand signals as required by the boom operator's
manual and the Employment and Safety Policy Handbook (Tr. 220,
Exhs. R-B and R-I). The boom operator knew he was supposed to
have a signalman (Tr. 225). The foreman attached the mantel to
the chain at the end of the boom , walked over to the truck,
waited there until the boom operator lowered the mantel onto the
bed of the truck , and then unhooked the mantel from the chain
(Tr. 22 0 -221).
After the first mantel was unhooked , decedent did not let go
of the chain at end of the boom (Tr. 220). When the boom operator swung the boom to get the second mantel , decedent gave him
hand signals with one hand while holding the chain with the other
(Tr. 44-45, 219). The operator watched the signals and followed
them (Tr. 219). The operator watched decedent and expected
decedent to watch the wires (Tr. 226, 227). When lifting mantels
onto the truck, decedent usually told the operator to lower the
boom, but in this instance he did not. The boom was swung over
in an upright position and hit the high voltage line (Tr. 46-48,
120 , 220, 225). The operator saw decedent lying on the ground
and then looked up to see the boom touching the high voltage wire
(Tr. 226). Because decedent was holding the chain, he was
electrocuted when the boom touched the wire (Tr. 110, 163).
Conclusions
Section 56.12071 , supra, requires that high voltage power
lines be deenergized or other precautionary measure taken, when
equipment must be moved or operated near energized high voltage
power lines and clearance is less than 10 feet. There is no
dispute in this case that the boom truck which was being operated
in connection with moving the mantels came closer than 10 feet to
the high voltage power lines. · The boom truck actually touched
the wire. There ·is also no disagreement that the wires were

1404

energized. The issue presented is, therefore, whether respondent
took precautionary measures.
The inspector testified that precautions were not taken
because there should have been three people engaged in moving the
mantels, one to operate the crane, a second to signal, and a
third to attach the mantel (Tr. 120). However, the inspector
admitted that using three people is not standard procedure in
this type of task and he agreed that there was nothing wrong with
a two person team (Tr. 125, 144). In light of the inspector's
admissions, I conclude that the use of two persons to move the
mantels was permissible and did not constitute a faiiure to take
precautionary measures.
The inspector further stated that the failure to wear
protective gloves and boots constituted a failure to take precautions (Tr. 120) . At one point he expressed the belief that if
the decedent had worn gloves, he would not have been electrocuted
(Tr. 124) . But he also stated that wearing boots and gloves was
not standard procedure and that he did not know if gloves would
have protected , decedent from 13,200 volts (Tr. 124-125, 141-142).
In view of the ·contradictions in the inspector's testimony, I
conclude that the absence of protective boots and gloves was not
a failure to take precautionary measures.
Finally, the inspector said that different equipment should
have been used and that a boom truck smaller than the one in this
case is ordinarily used (Tr. 125-126). However, he also stated
that trucks of this size are used and there is no prohibition
against them (Tr. 126). The use of the boom truck was therefore,
not improper and cannot serve as the basis for -finding that
precautionary measures were not taken.
The inspector's reasons for finding a violation are however,
not determinative in this proceeding . A hearing has now been
held at whiqh documentary evidence was received and testimony
given. The matter is before me for a de ~ decision based on
all evidence presently of record.
Respondent has submitted evidence showing that. weekly safety
meetings were held and that new employees, including new supervisors, had a period of training during which they were accompanied
and trained by an experienced person. I accept this evidence. I
further accept evidence that safety meetings were held before
placement of the power lines to advise company employees of the
installation. As already set forth, the boom operator described

1405

his training including the instructions he received from decedent
who was his foreman. Finally, I accept the statements of respondent's operations manager that decedent was trained as an aggregate plant operator and as a foreman.
Turning to the events of the day the fatality occurred, the
conduct of the individuals involved must be examined to determine
whether there was a violation of the mandatory standard. The
boom operator was watching decedent's signals, as ·he had been
taught and trained to do (Tr . 77-78, 99-100, 105, 182, 188, 223).
The boom operator looked to the rear of the truck so that he was
facing the signaler and watching his signals (Tr. 77). The
signaler is the boom operator's eyes (Tr. 182). No blame attaches to the boom operator with respect to the cited condition or
practice and I conclude that there was no failure on his part to
take precautionary measures.
With respect to decedent' s conduct , the evi dence demonstrates that because he held the chain . at the e nd of the boom, he
signaled the boom operator with only one hand (Tr . 85, 219-220 ,
221). Holding the chain with one hand while signaling with the
other was impro~er (Tr. Bl , 250-251). And holding the chain was
the reason decedent was electrocuted when the boom hit the wire
(Tr. 110, 163). Testimony shows that although one man could
signal and hook the mantels, the two tasks were not intended to
be performed at the same time , but rather in sequence (Tr. 75,
81-82) . There was no reason for decedent to have held the chain
while he was signaling and no one knew why he did so (Tr. 79, 81 ,
151, 225). Under normal operating procedures signaling requires
two hands (Tr. 85). Drawings of standard hand signals in the
boom operator's manual show that either two hands are required or
that one hand is used to signal while the other is at the signaier ' s side (Exh . R-I). No drawing shows a signaler performing
another task while he is signaling. The Employment and Safety
Policy Handbook which respondent gives its employees, requires
that safe distances be maintained between power lines and equipment and that there be at least a 10 foot clearance horizontally
and vertically between any part of a crane and any electrical
line (Exh. R-B, pp. 38-39). Decedent failed to give signals that
would have maintained the requisite clearance. Based upon the
foregoing, I conclude that decedent violated the mandatory
standard by failing to take precautionary measures as required by
the standard . . On the contrary, he engaged in e x tremely qangerous
behavior which resulted in the fatal . accident.

1406

The Commission has long held that operators are liable
without regard to fault for violations of the Mine Act. Fort
Scott Fertilizer Inc., 17 FMSHRC 1112, 1115 (July 1995). The
Commission's decisions on this point have been upheld by the
courts. Asarco, Inc., 8 FMSHRC 1632, 1634-36 (November 1986),
aff'd, 868 F.2d 1195 (10th Cir. 1989); Sewell Coal Co. v . FMSHRC,
686 F.2d 1066, 1071 (4th Cir. 1982); Allied Products Co . v .
FMSHRC, 666 F.2d 890, 893-894 (5th Cir . 1982). It is therefore,
established that an individual miner's misconduct in causing a
violation is not a defense against operator liability . Particularly instructive for present purposes is the Commission's
determination that under the liability scheme of the Act, an
operator is liable for the violative conduct of its employees,
regardless of whether the operator itself was without fault and
notwithstanding the existence of significant employee misconduct.
Ideal Cement Co., 13 FMSHRC 1346, 1351 (September 1991). So too,
the Court of Appeals for the Fifth Circuit has held that an
operator is liable for a violation even where significant employee misconduct caused the violation and it is irrelevant whose
act precipitab~d the violation . Allied Products, supra at 894.
The existence or degree of fault may be taken into account in
determining the amount of penalty when negligence is evaluated.
Asarco, supra at 1636. In light of the foregoing, I conclude the
operator is responsible and liable for the violation.
The Act mandates that where there is a violation, a penalty
must be assessed . Old Ben Coal Company, 7 FMSHRC 205, 208
(February 1985); Tazco , Inc. , 3 FMSHRC 1895, 1897 (August 1981) ;
Van Mulverhill Coal Company , Inc., 2 FMSHRC 283, 284 (February
1980); Island Creek Coal Company , 2 FMSHRC 279, 280 (February
1980) . As set forth above, section 110(i) of the Act specifies
six factors to be considered in setting the amount of penalty.
Gravity is one of the factors . Since the violation in this case
resulted in a fatality, I conclude that it represents the ultimate in gravity. Moreover , the evidence establishes the four
elements necessary to sustain a significant and substantial
finding. Peabody Coal Company, 17 FMSHRC 508, 510-51-1 (April
1995); Mathies Coal Company, 6 FMSHRC 1, 3-4 (January 1984);
National Gypsum Company, 3 FMSHRC 822, 825-826 (April 1981). A
violation existed which presented the discrete safety hazard of
electrocution. In addition, there was a reasonable likelihood
the hazard would result in a reasonably serious injury. The
fatality was not a fluke, but a reasonably likely consequence of
the foreman's hazardous conduct.

1407

The next factor to be considered is negligence . As set
forth supra, decedent acted in a reckless and irresponsible
manner by engaging in conduct which, in light of his training and
experience, he must have known was very risky and dang~rous.
I
conclude therefore, that decedent was guilty of the highest
degree of negligence and that his conduct constituted unwarrantable failure as that term has been defined by the Commission.
Emery Mining Corporation, 9 FMSHRC 1997, 2004 (December 1987);
Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007, 2010 (December
1987) . The issue is whether decedent's negligence is imputable
to the operator for purposes of fixing an appropriate penalty
amount. Under Commission precedent negligence of a rank and file
miner cannot be imputed unless the operator fails to discharge
its responsibilities with respect to training, supervision or
discipline. U. S. Coal, Inc., 17 FMSHRC 1684, 1686 (October
1995); Rochester & Pittsburgh Coal Company, 13 FMSHRC 189, 197
(February 1991); A. H. Smith Stone Company, 5 FMSHRC 13, 15
(January 1983); Southern Ohio Coal Company, 4 FMSHRC 1459, 1464
(August 1982). Ho wever, negligence of a supervisor is imputable
to the operator unless the operator can demonstrate that no other
miners were put at risk by the supervisor' s conduct and that the
operator took reasonable steps to avoid the particular class of
accident. Nacco Mining Co., 3 FMSHRC 848, 849-850 (April 1981).
This has been referred to as the Nacco defense.
The Commission
has emphasized that an agent's unexpected misconduct may result
in a negligence finding where his lack of care exposed others to
risk or harm.
Id. at 851. Even wilful and intentional misconduct of employees may be imputed. Rochester & Pittsburgh, supra
at 197.

By his misconduct decedent not only put himself in peril .
He also placed the boom operator at risk . Testimony from the
operator's corporate safety manager and the MSHA inspector
indicates that confronted with a situation where his supervisor
was electrocuted before his eyes, the boom operator in the stress
of the movement could have left the truck and stepped onto the
ground, thereby running the risk of becoming an electrical ground
(Tr . 107, 165). I find that the boom operator was put at risk
because under the circumstances there was a distinct poss~bility
he could have stepped from the truck, making himself a ground. I
recognize that in this instance the boom operator did not leave

1408

the truck, but I do not believe the risk has to mature for it to
have been present . Accordingly, on this basis I conclude that
the Nacco defense is not available to the operator in this case .
In addition, the corporate safety manager believed that
despite outriggers which served as grounds, the boom operator
would have been in danger even on t~e truck because electricity
might not always go to ground (Tr . 107-109). The inspector also
believed the boom operator was at risk because high power jumps
(Tr. 163). In light of this evidence, I again find that the boom
truck operator was put at risk by decedent's actions, precluding
a Nacco defense .
The Nacco defense also is not applicable where the operator
does not take reasonable steps to avert the particular type of
accident that .occurred. Evidence regarding the operator's
orientation and training of new employees as well as its subsequent safety meetings has been set forth and accepted . However,
the evidence also shows that in the area of the aggregate plant
respondent was \not conducting a safe operation . Decedent's
unsafe behavior \ Was not an aberration or isolated instance. The
boom truck operator testified that decedent often held the chain
while signaling (Tr. 221). Sometimes decedent held the chain and
sometimes he did not (Tr. 225). Other signalers also held the
chain while directing the boom operator (Tr. 228-229) . The
corporate safety director was not aware that signalers held the
chain while signaling (Tr. 249). He was not sure whether the
operator's policy regarding holding the chain was spelled out,
but he believed that the general practice was not to hold the
chain (Tr . 249) . The operations manager, who was decedent's
sup~rvisor and who was on site, did not know how decedent and
other foreman performed their duties (Tr . 249, 252) . Thus, the
record demonstrates that those in managem.ent above the foremen
had no idea what was actually happening on the ground . I conclude that the operator did not take reasonable steps to prevent
the type of accident that occurred because holding the chain
while signaling was an ongoing practice. The operator is obliged
not only to train new employees and hold safety meetings , but
also to monitor the activities of miners and foremen to insure
that the safety procedures they have been told about are followed. I conclude that on this basis also the Nacco defense is
not available to respondent. In light of the foregoing, decedent's extremely negligent conduct which constituted unwarrantable failure is imputable to the operator for purposes of determining an appropriate penalty amount.

1409

Even more importantly, I conclude that apart from imputation
of negligence, the operator itself was highly negligent because
i t failed to keep itself apprised of how its quarry was actually
being run. As set forth above, the operator did not provide on
the ground oversight of the actions of its miners and first level
supervisors. It is not sufficient for the operator to initially
train its foremen and have them conduct safety meetings, but then
leave them to their own devices on site when the work is being
performed.
The operator's deficient and aggravated conduct
constituted a very high degree of negligence and unwarrantable
failure.
The stipulations of the parties which I have accepted,
address the other criteria specified in section llO(i), supra.
I
particularly note the operator's low history of prior violations.
After considering all the llO(i) factors, I determine that a
penalty of $6,000 is appropriate.
The excellent post-hearing briefs filed by the parties have
been reviewed and were most helpful.
To the extent the briefs
are inconsistent with this decision, they are rejected .
ORDER
It is ORDERED that the finding of a violation for Citation
No. 4088141 be AFFIRMED .
It is further ORDERED that the significant and substantial
finding for Citation No. 4088141 be AFFIRMED .
It is further ORDERED that the high negligence finding for
Citation No. 4088141 be AFFIRMED.
It is further ORDERED that the unwarrantable failure finding
for Citation No. 4088141 be AFFIRMED .
It is furth er ORDERED that a penalty of $6,000 be ASSESSED
and that the operator PAY $6,000 within 30 days of the date of
this decision .

Paul Merlin
Chief Administrative Law Judge

1410

Distribution:

(Certified Mail)

Karen E . Mock, Esq., Office of the Solicitor, U . S. Department of
Labor, 1371 Peachtree St., N . W. , Room 339, Atlanta, GA
30367
Roger L. Sabo , Esq., Schottenstein, Zox & Dunn, Huntington
Center, 41 South High Street, Columbus , OH 43215
/gl

1411

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

AUG

2 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
CLETIS R . WAMSLEY,

DISCRIMINATION PROCEEDINGS

Docket No. WEVA 93-394-D
Hope CD 93-01, 93-05

ROBERT A. LEWIS,

Docket No. WEVA 93-395-D
Hope CD 93-02

JOHN B. TAYLOR,

Docket No. WEVA 93-396-D
Hope CD 93-04

CLARK D. WILLIAMSON, AND

Docket No. WEVA 93-397-D
Hope CD 93-07

SAMUEL COYLE,

Docket No. WEVA 93-398-D
Hope CD 93-11

Complainants

v.
Mutual Mine I
MUTUAL MINING, INC.,
Respondent
DECISION ON PAMAGES FOLLOWING REMAND
Before:

Judge Amchan

On June 24, 1994, I found that Respondent had vio~ated
section 105(c) of the Act in discharging the Complainants on
December 21, 1992. Subsequently, on November 30, 1994, I · granted
the Secretary of Labor's motion for summary judgment on the issue
of damages.
I ordered Respondent to pay the following amounts to
the respective Complainants :
Cletis Wamsley
Clark D. Williamson
Samuel Coyle
John B. Taylor
Robert A. Lewis
16 FMSHRC 2371, 2372.

1412

$35,880.88
$ 5,203.31
$19,667.81
$23,132.15
$46,825.73

However, in accordance with Commission precedent at the
time, I stated that Complainants must subtract any amounts
received in unemployment compensation benefits from ·the back pay
award and return those amounts to Respondent, if such amounts had
been paid, 16 FMSHRC 2372 n. 1.
In accordance with the decision of the Court of Appeals
decision in Secretary of Labor v. Mutual Mining. Inc.,
80 F.3d 110(4th Cir . 1996) and the ensuing Commission remand
order, I hereby order Respondent to pay the amounts stated above
in full.
If any back-pay has been returned to Respondent
pursuant to my November, 1994 decision, Respondent is ORDERED to
pay these amounts back to the individual Complaina~ts within
45 calendar days of this decision . Upon payment of these amounts
these cases are dismissed.

\

L?(}l2-~
Arthur J. Amchan
Administrative Law Judge

Distribution:
Robert S . Wilson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington , VA 22203
(Certified Mail)
W. Jeffrey Scott, Esq., 311 Main Street, P.O. Box 608, Grayson,
KY 41143 (Certified Mail)
Mr. Johnny Porter, Route 1, Box 700, Sandy Hook, KY 41171
(Certified Mail)
dcp

1413

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

AUG

5 1996

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

,- CIVIL PENALTY PROCEEDING
Docket No . YORK 95-112-M
A.C. No . 30-0 0610-05515

v.

No. 2 Mine
GOUVERNEUR TALC co . I

INC.

:

Respondent
DECISION

Appearances :

James A. Magenheimer , Esq. , U. S . Departmen t of
Labor , Office of t he Solicit or, New York , New
York, for the Petitioner ;
Sanders D. Heller, Esq ., Gouverneur, New York,
for the Respondent .

Before:

Judge Weisberger

This case is before me based u~on a Petition 1 for Assessment
of Civil Penalty filed by the Secretary (Petitioner) alleging
violations by the Gouverneur Talc Co . , Inc. (Gouverneur) of
30 C.F . R. §§ 56 . 3130 and 56.3200 . Subsequent to notice, the case
was heard in Watertown, New York, on December 5-7, 1995, and in
Syracuse, New York,.on March 26, 1996.
The parties filed post hearing briefs on June 7, 1996.
Gouverneur's reply brief was received on June 24, 1996.
Findings of Fact and Discussion
I .

lptroduction

The subject surface talc mine operated by Gouverneur
consists of a series of benches located at various elevations .
Each bench consists of a floor or travelway, and a vertical
highwall. In April 1995, the Pioneer Bench was the highest

1414

bench, the 617 was below it, and the No. 4 was below that. Four
other benches were located below the No. 4 bench. The No. 617
and 4 benches were created by a contractor sometime between the
fall of 1992, and the spring of 1993. In normal mining
operations, muck, or loose material resulting for the blasting
of the highwall, was removed by a loader or backhoe.
II .

Citation No. 4288343
A.

violation of 30 C. F . R.

§

56 . 3130

On April 4, 1995, William L. Korbel, Jr., an MSHA Inspector,
inspected Gouverneur's operation. At about 7:30 a.m., while
standing on top of the No. 617 bench, he looked down at the No . 4
bench, and observed a number of large loose pieces of material
above where a 9960 Caterpillar front-end loader ("loader") was
loading muck . Korbel went down to the No. 4 bench. From a
position about thirty-five to forty feet away from the highwall,
he observed a pi\ce of loose material, ( "chunck") ten feet by
twelve feet by eight feet, approximately thirty feet above the
floor of the bench.
Korbel stated the chunck piece was resting
on loose material, and that the area below the loose material
was, "ne~rly vertical" (Tr. 24 ) . Korbel indicated that this
chunk was larger than the bucket of the loader, and was above
the reach of the loader. 1
According to Korbel, the highwall of the bench extended
vertically from the floor a variable distance of approximately
thirty to forty feet, and then extended diagonally a linear
distance of approximately eighteen feet .
Korbel issued a Section 104 (d) (1) citation alleging a
violation of 30 C.F.R. § 56.3130 which provides as follows:
Mining methods shall be used that will maintain wall,
bank, and slope stability in places where persons work
or travel in performing their assigned tasks. When
benching is necessary, the width and height shall be
based on the type of equipment used for cleaning of
benches or for scaling or walls, banks, and slopes.

1

The maximum reach of the loader is eighteen feet.

1415

l.

Whether Gouyerneur was using "mining methods"
that will maintain wall and slope stability

Korbel testified that he observed Mark Trombley digging into
a muck pile with the loader. According to Korbel, digging into
the muck pile with the loader was not a safe mining method,
because it did not maintain wall stability of the muck pile. He
opined that this method was exposing Trombl ey to the danger of
being injured or killed by falling rock. In this connection ,
Petitioner argues that Trombley was exposed to the danger of
being crushed by the chunk, located above him on a vertical wall,
and that this piece could not have been controlled by the loader.
Although Trombley might have been exposed to the hazard of
the large chunk in the pile, there is no empirical evidence that
Gouverneur's .method of removing material from the muck pile had
any detrimental effect on the stability of the pile, wall, or
slope. Neither party presented any substantial, convincing
evidence regarding how the term "stability" is commonly
understood in ·the mining industry. A Dictionary of Mining.
Mineral and Reiated Terms (1968) ("DMMRT"), defines "stability,"
as pertinent, as follows: "The resistance of a . . . spoil heap
. . . to sliding , over terming, or collapsing . . . See also,
angle of repose:" . . . "angle of repose" is defined in the DMMRT
as follows: "The maximum slope at which a heap of any loose or
fragmented solid material will stand without sliding or come to
rest when poured or dumped in a pile or on a slope." There is no
evidence that the muck pile was not at rest. Accordingly, I find
that when cited, the pile was stable.
Korbel explained Gouverneur's mining method as follows:
A. Yes. There was more loose. This whole area
had started at what we would call an angle of
repose from the cast off of the shot that ~ascaded
down over the sides; had a pretty good angle. The
problems came when they started digging in . . .
This material would not come down that easy, and
they were getting fairly vertical heights where
they were mucking . And that was what created the
exposure; because in order to be there and to
clean this, as you're raising your bucket loader
your loader has to come in underneath. It's just
the way it functions . And that was bringing the

1416

operator into very close proximity of this loose,
and the proximity was almost -- nearly vertical,
which is just a very bad situation (sic.)
(Tr . 2 7 - 2 8 ) .
Korbel did not specifically explain how Gouverneur's method
of mining would not maintain stattility of the muck pile. Nor did
Petitioner adduce any other evidence on this point. I thus
conclude that Petitioner has not established that Gouverneur's
mining method would not maintain stability of the muck pile or
the wall.
The width and height of the bench based on the 996D
loader used for cleaning of benches or scaling bf slqpes
2.

In essence, Petitioner next argues that Gouverneur violated
the second sentence of Section 56.3130 supra which provides as
follows: "When benching is necessary, the width and height shall
be based on the type of equipment used for cleaning of benches or
for scaling of walls, banks and slopes."
a.

Scaling qf Walls. Banks. and Slopes

Neither party presented any evidence as to whether the
operations at issue constituted "scaling" as that term is
commonly understood in the mining industry. The DMMRT, defines
"scaling,." as pertinent, as follows: "a. The plucking down of
loose stones or coal adhering to the solid face after a shot or a
round of shots has been fired . . . (b} removal of loose rocks
from the roof or walls . . . " Based on this definition, I
conclude that there is no evidence that Trombley was performing
any scaling, or that any scaling was being performed at the
specific area cited.
b.

Cleaning of benches

Similarly, there is no evidence in the record as to whether
Gouverneur's mucking operation is within the meaning of the term
•cleaning of benches", as commonly understood in the mining
industry. However, Gouverneur has not asserted this point in its
defense. Accordingly, it is assumed that this is no disagreement
that the operation performed by Trombley was within the purview
of the term "cleaning of benches".

1417

c. Height of the bench relative to the operation
of the loader
Petitioner argues that sinc e, according to the testimony of
Korbel, the height of the bench was more than double the maximum
reach of the front end loader, it was not based upon the type of
equipment used. Petitioner cites Korbel's testimony that as a
result there was no way to safely bring the large chunk down by
way of the loader. Petitioner also relies on the testimony of
Harold vonColln, Gouverneur's Mining Superintendent, who
indicated that he would not assign a 966D loader to a muck pile
if it is "substantially" above the loader, as "that would
constitute a hazard" (Tr . 671 ) .
In essence, Gouverneur argues, inter .ali.a, that as part of
its operation , only the lower portion of the muck pile was being
mucked with the 966D loader, and that it had planned to bring in
another piece of equipment of handle the elevated Section of the
muck pile. However, even should these steps be taken some time
in the future, it. does not negate the fact that, when cited, the
height of the bench was well beyond the capacity of the 996D
loader. I thus find that the height of the pile was not based on
the equipment being used i.e., the 996D loader, and as such
Gouverneur did violate Section 56.3130, supra.
B.

Significant and Substantial

According to Petitioner the. violation herein is significant
and substantial.
A "significant and substantial" violation is described in
Section l04 (d ) (1 ) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health haz~rd."
30 C.F.R. § 814(d) (l). A violation is properly designated
significant and substantial "if, based upon the particula·r facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement piyision.
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981) .

141 8

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We n~ve explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury. 11 U,S, Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of Section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U,S, Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
~., 6 FMSHRC 1573, 1574-75 (July· 1984).
Applying the Mathies, supra, holding to the instant case,
due to the fact that the large chunk was beyond the reach of the
loader, l find that the violative condition contribut·e d to the
hazard of the chunk falling and injuring Trombley or some · other
miner in the area. The question to be resolved is the likelihood
of an injury producing event i.e., the chunk or some other
hazardous object falling and causing injuries. According to

1419

Korbel, the chunk was unpredictable and unmanageable. However,
on cross-examination, he recognized that a number of rocks under
the chunk were "doing a certain amount of support" (Tr. 146). He
was asked whether the chunk can move, and he indicated as
follows: "As long as everything stays right there, you would be
good (sic)" (Tr. · 146). He elaborated as follows: •As long as the
face is left this would fairly stay there, unless you had
different changes, such as your weather, or vibrations, or
something thats going to effect it" (sic) (Tr. 147).
Although the chunk could have become dislodged, there is an
absence of specific evidence in the record to base a conclusion
that this event was reasonably likely to have occurred. I thus
find that it has not been established that the violation was
significant and substantial.
C.

Unwarrantable Failure

As discussed above, (I (A ) infra ) , the essence of the
violative condition was that the height of the muck pile was not
based on the reach of the loader. It is incumbent upon
Petitioner to establish that this violation resulted from
Gouveneur's aggravated conduct which is more than ordinary
negligence (Emery Mining Co:r:p., 9 FMSHRC 1997 (1987)). In his
brief, Petitioner argues, in essence, that aggravated conduct is
predicated upon Gouverneur's management refusing to take action
knowing that the nature of Trombley's work was unsafe.
Specifically, Petitioner refers to Trombley's testimony that he
had previously complained to his foreman, Craig Woodard, and to
the Safety Director, Terry Jacobs that he "didn't like the looks
of that chunk" (Tr. 399), but that Woodard did not take care of
it.
Petitioner also refers to Trombley's testimony that when he
was mucking the day prior to the issuance of the order at issue,
Leonard Zeller, told him that where I was mucking ~it was -- it
was similar -- like the same type of inciden that it was when -when the stuff come down on his loader" (sic) (Tr. 415).
Trombley told this to Jacobs who told him to take it up with his
foreman, Woodard. According to Trombley, when he spoke to
Woodard the next day. "
. he gave me an ultimatum: If you
want to go down to the other bench, if you felt more comfortable,
go down there" (sic.) (Tr. 416).

1420

I find that the incident referred to by Zeller, and
Woodard's reaction to Trombley's concerns, cannot form the basis
of any aggravated conduct. As noted above, (I (A) .infra), the ·
specific violative condition found herein was that the height of
the bench was not based on the reach of the 9960 loader. In
contrast, Trombley's expressed concerns related to the hazards
associated with the chunk. 2
Also, the Zeller incident in
February 1995 related to the collapse of a sidewall. There is no
evidence that the Zeller incident related to the cited condition
herein i.e., the ·height of a bench/muck pile as it related to the
9960 loader.
Donald Puller, Governeur's General Mine Foreman indicated
that a front-end loader mucks from the bottom of the pile; that
Gouvernor did not intend for the loader to be used to muck the
top of the pile, and that other equipment would be used for that
task.
In discuss~ons with Korbel subsequent to the Zeller incident
regarding avoiding another similar situation, Fuller stated that
"We said we would try to cut down the height of the benches that
we were working on, on the - starting with the upper benches"
(sic . ) (Tr . 5 8 9 ) .
Acco rding to Fuller, normally, in lowering the benches, one
starts with the highest bench. He indicated that the
approximately 20 0 feet of the tDp 617 bench had been lowered down
to thirty four feet. He indicated that it would take probably a
couple of years before the No. four bench, would be lowered.
Randy Gadway, an MSHA supervisor, testified that on
February 9 , he met with Harold vonColln, Governeur's Mine
Superintendent, and observed the bench where the Zeller incident
had occurred. Gadway indicated that vonColln explaineq the
corrective measures that Gouverneur was going to take. He

In response to Trembley's concerns about the chunk, Woodard
told Tremble to place berm rocks approximately 15 feet from the
face of the wall, and to munk to the left side of the chunk.
2

1421

indicated that vonColln told him that Gouverneur intended to
replace the front-end loader with a Caterpillar 235 excavator
{~235 excavator") to load and scale .
This excavator has a longer
reach than the loader at issue.

-

VonColln testified later on at the hearing, and did not
rebut Gadway's testimony regarding_. the conversations between the
two of them. Accordingly, Gadway's testimony on this point is
accepted.
Michael Anthony Guida Jr., a mining engineer employed by
Gouverneur, opined that the 996D loader was safer than a 235
excavator, as the latter is slower, and requires the building of
a barrier for protection before it can be used to remove
materials located above it. He also indicated that, in general,
in the normal ·operation of the 235 excavator, its operator would
face away from the muck pile. According to Guida, it would have
been dangerous to have used the 235 excavator to muck the pile at
issue. He explained that the operator would have to place the
235 excavator close to the toe of the muck pile to reach the
keystones that were supporting the chunk . According to Guida,
once the keystones would be removed, the chunk would probably
come down and "if he had his bucket in a manner that that rock
would roll over the back of his bucket, it could -- slide down
the stick of the boom and right into his cab. That is completely
the wrong way to approach those, that chunk" (sic.) (Tr. 767) .
In the same fashion, Woodard explained that the 215 excavator
would not have been the proper piece of equipment for use on the
bench at issue as "you would have been working over your head
with no protection in front of you" (Tr. 495).
Although there was conflict in the testimony between
Woodward and Guida on one hand, and vonColln on the other
regarding the use of a 235 excavator with a larger reach rathe~
than the 996D loader, it can be inferred, that vonColln, ~as
aware of the relationship between the equipment in use ie ·.. , the
996D loader, and the height of the pile. In opting for the use
of the 235 excavator with a larger reach, it can be inferred that
vonColln ·realized that the height of the bench, as constituted on
the date at issue, was too high at a point in time when ·the
cleaning or mucking was being performed by the 996D loader.

1422

Within the context of the above evidence, I conclude that
the level of Gouverneur's negligence reached the point of
aggravated conduct, and would be considered to constitute an
unwarrantable failure. (See, Emery, supra}. As such, this
finding would properly be included in a citation issued under
Section 104(d} (l} of The Federal Mine Safety and Health Act of
1977 ("the Act"} only if the violation would also have been found
to have been significant and substantial. Since I have decided
that the evidence has failed to establish that the violation was
significant and substantial, (See, (I} (B} infra), I conclude that
the l04(d} (1} citation at issue should be amended to a Section
104(a) citation.
D.

Penalty

For the reasons set forth above, (I (C}, infra.), I find
that the level of Gouverneur's negligence reached the level of
aggravated cond~ct. I find that the gravity of the violation was
moderately high ''because any type of rock fall associated with
this violation could result in a serious injury, or death.
Considering the remaining factors set forth in Section llO(i)
of the Act, I find that a penalty of $2,000 is appropriate.
II.

Order No. 4288344
A. violation of 30 C.F.R.

§

56.3200.

Korbel indicated that in the course of his inspection he
observed "a large amount of loose" (Tr. 65) dispersed throughout
a 500 foot area above the travelway on the No. 4 bench. He said
that the largest pieces were two feet by four feet by four feet,
and that ten of these were dispersed through the area. He
indicated that most were lying on loose material. Korbel said
that a number of loose rocks were approximately three feet by
three feet by one foot. Korbel noted that he also saw pebbles,
and fist sized material. Korbel stated that there were ioose
rocks about two feet b.a ck from the face or top of the vertical
wall.
Korbel indicated that two trucks travel on the thirty to
forty foot wide roadway directly below the loose material~
.
Korbel also observed truck tracks within five feet of the wall.

1423

Korbel described the wall of the bench as being vertical,
and forty feet high. According to Korbel, the loose material was
above the vertical wall on a slope that was eighteen feet long,
and at a forty to fifty degree angle . According to Korbel, the
largest concentration of material was located in an area whose
slope was forty to forty-five degrees.
Korbel indicated that at the top of the diagonal portion of
the wall he lobbed five to ten pound basketball sized rocks at
some rocks located ten to.fifteen feet away. Korbel said that
the largest of these were'approximately one foot by six inches by
eight inches, and that they moved when he hit them with the rocks
that he was lobbing. Korbel also threw at other rocks about
fourteen inches in diameter and most of these moved. Others were
knocked off the edge of the wall.
Korbel said that the loose material can come down as a
result of the vibration caused by vehicles traveling on the
roadway underneath. Korbel also said that weather conditions
such as alternating rain, cold weather, and warm weather, can
erode material underneath the loose rocks and can cause the loose
material to fall down due to lack friction .
Korbel issued an order under Section l04(d) (1) of the Act,
alleging a violation of 30 C.F.R. § 56.3200 which provides as
follows:
"Ground conditions that create a hazard to persons
shall be taken down or supported before other work or
travel is permitted in the affected area. Until
corrective work is completed, the area shall be posted
with a warning against entry, and, when left
unattended, a barrier shall be installed to impede
unauthorized entry.
According to Woodward, the day prior to the issuance ·of the
instant order, Trombley had told him that he and other workers
were concerned about material in the 500 foot area at issue. In
response to these concerns, Woodard walked up to the area in
issue. Woodward took with him a four foot long, one and a half
inch diameter, aluminum scaling bar that had a steel tip. Using ·
the scaling bar, Woodard attempted to move rocks that were
approximately four feet by four feet by three feet. He was

1424

unable to move these pieces. However, he was able to move about
four or five basketball sized pieces, and send them below the
highwall. Woodard indicated that he could not get · any material
to move in the area that he described as being in a valley. In
general: Woodward described the material in the area in question
as being at rest. He opined that .there was no danger of the
loose material moving by itself. ~
After the issuance of the order at issue, Guida and Korbel
walked along the edge of the bench for about a hundred feet.
Korbel pointed out some material. Guida opined that there was no
danger of the objects falling down without "some large physical
force trying to move it" (sic.) {Tr. 792), as these objects were
lying at less than their angle of repose.
None of Gouverneur's witnesses rebutted or impeached
Korbel'~ testimony that some of the loose material could have
fallen down as a result of exposure to vibration caused by the
trucks operatf~g on the travelway below, or as the result of
various weather conditions. Also, Gouverneur did not offer any
eyewitness testimony to contradict the testimony of Korbel that
he threw rocks at some of the material he cited and that some of
the objects moved. 3 I therefore accept Korbel's testimony ·and
find that .s.Q1D.e. of the loose material cited could have fallen
below onto the roadway. Accordingly, this condition created a
hazard to the men operating the trucks that travel in the roadway
below. There is no evidence that the cited area was posted with
a warning against entry or that any barriers were installed . I
thus find that Gouverneur did violate Section 56.3200 SuPra.
B.

Significant and Substantial

According to ~orbel, the presence of the loose material at
issue could have resulted in a fatality should some of this
material have fallen down and injured the trunk drivers who drive
on the roadway below. Clearly this hazard was contributed to by

Fuller testified that normally when he has thrown rocks at
larger objects he had not been able to move the larger objects.
I find this testimony insufficient to rebut Korbel's testimony as
to what he actually did . In this connection I observed Korbel's
demeanor, and I find his testimony credible.
3

1425

the violative conditions. However, the record is devoid of any
evidence to predicate a finding that an injury producing event ·
i.e., some of the material falling on the roadway would have been
reasonably likely to have occurred. Korbel indicated that the
vibration of the vehicles traveling on the roadway below, and the
effect of alternating rain, coal and warm weather 1:A1l cause the
material to fall down. On the other hand, Petitioner did not
rebut or impeach the testimony of Woodard and Guida that, in
essence, although the rocks were loose, they were at rest and at,
or less than, the angle of repose. I thus find that althought
the cited loose rocks .c.a..n fall, there is an absence of evidence
in the record that this event was reasonably likely to have
occurred. I thus find that it has not been established that the
violation was significant and substantial.
C.

Penalty

I find that in the event of a any of the material falling, a
fatality could have resulted. Hence, I find that the violation
was of a moderately high level of gravity.
The day prior to the issuance of the citation at issue
Trombley had told Woodard that he and other drivers were
concerned about a few chunks, four feet by four feet, by five
feet, that were thirty to forty feet above the roadway. In
response, Woodard went up to the area in question, spent about a
half hour there, and tested various loose objects with a scaling
bar. Since Woodard inspected and tested the area in response to
Trombley's concerns, I find that Gouverneur's negligence herein
to have been only moderate.• Considering the remaining factors
set forth in Section llO (i ) of the Act, I find that a penalty of
$1,000 is appropriate.

The order at issue was issued pursuant to Section 104(d) (1)
of the Act. Since Gouverneur's negligence was only of a moderate
degree it did not reach the level of aggrevated conduct, and
cannot be characterized as an unwarrantable failure. Since the
violation also was not significant and substantial (II) (A) infra)
the order should be reduced to a Section l04(a) citation that is
not significant and substantial.
4

1426

ORDER
It is ORDERED that Citation No. 4288343, and Order
No . 4288344 shall be amended to Section l04(a) citations that
are not significant and substantial. It is FURTHER ORDERED that
Gouverneur shall, within 30 days of this decision, pay a civil
penalty of $3,000.

Avram Weisberger
Administrative Law Judge
Distribution:
James A. Magenheimer, Esq . , Office of the Solicitor,
U.S. Departme~t of Labor, 201 Varick Street, Room 707, New York ,
NY 10014 (Certified Mail )
Sanders D. Heller, Esq . , 23 E . Main Street, P.O. Box 128,
Gouverneur , NY 13642-0128 (Certified Mail )
/ ml

1427

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

AUG 8 19_96
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-500
A. C. No. 24-00106-03516
Savage Mine

KNIFE RIVER COAL MINING CO.,
Respondent
DECtSIQN

Appearances:

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

Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Knife River Coal
Mining Company pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815. The petition alleges
two violations of the Secretary's mandatory health and safety
standards and seeks a penalty of $2,000.00. For the reas9ns set
forth below, I affirm the citation and order and assess a penalty
of $2,000.00.
A hearing was held on March l, 1996, in Billings, Montana.
In addition, the parties filled post-hearing briefs in this
matter.

1428

.Background

The Basic facts are not disputed. On February 8, 1995,
Bryan Carr and another miner were blasting in the Savage Mine
pit. They were not able to detonate their last shot before
quitting time. Carr suggested to Rich Kalina, Mine
Superintendent, that since Kalina was a certified blaster he
could set off the shot.
Carr then proceeded to the bath house to shower and go home.
he was combing his hair after showering, Kalina came into the
bath house and requested that Carr return to the pit with him
because the shot had not detonated. Kalina was in a hurry. As
he was leaving the bath house, Carr turned to go back in and get
his hard hat and hard toe boots . At that point Kalina said, "We
don't have time, let's go." (Tr. 52, 434.) 1

As

Carr accompanied Kalina to the pit without his hard hat or
hard toe boots. \ once there, he proceeded to detonate the shot .
He then returned to the bath house. The whole incident took
about 20 minutes.
Carr filed a 103(g), 30 U.S.C. § 813{g), request concerning
this incident. 2 MSHA Inspector James Beam conducted an
investigation of this request on April 19, 1995. As a result of
his investigation, he issued Cit~tion No. 3591319 and Order No .

The transcript in this case consists of 66 pages. In
addition, the parties agreed that certain transcript pages from
the hearing in Docket No. WEST 96-130-D would be considered as
evidence in this case. Those transcript pages are 427-438, 442443, 457-46~, 467-483, 486-489, 492-496, S~l-583, 611-622~ . 626629, 693-702, 707-721, 754-758, 769-770, 785 and 794-796.
1

Section 103 (g) provi.des, in pertinent part, that:
'Whenever . . . a miner has reasonable grounds to believe that a
violation of this Act or a mandatory health or safety standard
exists . . . , such miner . . . shall have a right to obtain an
immediate inspection by giving notice to the Secretary or his
authorized representative of such violation or danger.#
2

1429

3591320 under section 104 (d) (1) of the Act. 3
The citation alleges a violation of section 77.1710(d), 30
C.F.R . § 77.1710(d), because "[a] miner was transported to the
pit by the mine superintendent to assist in a coal shot on
February. 8, 1995. The miner was not wearing a suitable hard hat.
The Superintendent said he knows the miner should of [sic] had a
hard hat on." (Govt. Ex. 2.) Th~· order sets out a violation of
section 7i.l710 (e ) in that ~cal miner was transported to the pit
by the mine superintendent on February 8, 1995 to assist with a
coal shot. The miner was not wearing suitable protective
footwear. The Superintendent said he knows the miner should have
had protective footwear on." (Govt. Ex . 3.)

3

Section 104(d)l) provides:

If, upon any inspection of a coal or other mine,
an·authorized representative of the Secretary finds
that there has been a violation of any mandatory health
or safety standard, and if he also finds that, while
the conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to t~e
cause and effect of a coal or other mine safety or
health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards,
he shall include such finding in any citation given to
the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation, an
authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused by
an unwarrantable failure of such operator to so comply,
he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by
sue~ violation, except those persons referred to in
subsection (c) to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such
violation has been abated.

1430

The regulation states that:
Each employee working in a surf ace coal; mine or in
the surf ace work area of an underground coal mine shall
be required to wear protective clothing and devices as
indicated below:

(d) A suitable hard hat or hard cap when in or
around a mine or plant where falling objects may create
a hazard . . . .
(e) Suitable protective footwear.
Findings of Pact and Conclusione of Law

There can be little doubt that these two sections of the
regulation were ~iolated when Carr went to the pit and detonated
a blast without his hard hat and hard toe boots. Indeed, the
Respondent does not even address the issue of whether the
regulation was violated in its brief . Accordingly, I conclude
that this conduct violated the regulation . The company does,
however , contest the allegations that the violations were
"significant and substantial" and resulted from an "unwarrantable
failure."
Significant and Substantia l

A "significant and substantial" (S&S ) violation is described
in Section 104(d) (1 ) of the Act as a violation "of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard. 11 A
violation is properly designated S&S •if, based upon the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will . result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984}, the
Commission set out four criteria that have to be met for a
violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 {5th Cir. 1988), aff'g Austin

1431

Power, Inc., 9 FMSHRC 2015, 2021 {December 1987) {approving
Mathies criteria). Evaluation of the criteria is made in terms
of "continued normal mining operations." U. S. Steel Mining Co .,
Inc., 6 FMSHRC 1573, 1574 (July 1984 ) . The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988 ) ; Youghiogheny & Ohio Coal Co . , 9
FMSHRC 1007 (December 1987).

As is usually the case, it is the third and fourth Mathies
criteria, i.e., whether there was a reasonable likelihood that
the hazard contributed to by the violation would result in an
injury and whether there was a reasonable likelihood that the
injury would be of a reasonably serious nature, which are at
issue . The Respondent concedes that the first two criteria, a
violation of a mandatory health standard and a discrete health or
safety hazard contributed to by the violation, are present in
this case.
(Resp. Br . at 14 .)
The inspector testified that the hazards that a hard hat and
protective shoes would have shielded against were rocks falling
from the highwall and f lyrock or coal propelled through the air
by the blast. He submitted that "[i]t wouldn't be very
difficult, it would be easy to be injured" under the facts in
this case.
(Tr. 12.) He stated that a fractured skull, broken
toes, cuts or bruises serious enough to result in lost work time
could occur.
The Respondent argues that Carr was not working near the
highwall or falling material, that injuries sustained when
failing to wear protective footwear would not be reasonably
serious and that Carr was only exposed to a potential hazard for
a short period of time. These arguments are not persuasive .
The testimony indicated that the highwall was approximately
55 feet high. Carr testified that he went within 15 feet . of the
highwall to check the misfire and to make sure that the deta cord
was properly attached to the charges. He estimated that this
took him five or six minutes . He then went about 30 feet from
the highwall to attach the blasting cap to the deta cord. After
the shot, he related that he again went within 15 feet of the
highwall to make sure that all rounds of the explosive had
detonated.

1432

In addition, both Carr and the inspector testified that
there was a lot of sloughage off of the highwall. Carr stated
that the highwall was at the worst end of the pit for sloughage
because there was a significant gravel pocket and a spring at the
top of ~he highwall. Furthermore, both asserted that February
was a bad time for sloughage because of the thawing and freezing
that occurs. Carr explained tha~. in walking near the highwall he
kept his head up because he expected something to fall.
Add to the danger of sloughage the possibility that the
. blast could send flyrock farther than the miners anticipated, and
it becomes apparent that an injury as the result of not wearing a
hard hat or protective footwear is reasonably likely. l find
that this is so even in the short time that Carr was at the pit.
I further find that bruised or broken toes or feet could result
in lost work time and are, therefore, reasonably serious
inJuries. Accordingly, I conclude that these two violations were
"significant and substantial . "
Unwarrantable Failure

The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by
a mine operator -in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio Coal Co . ,· 9 FMSHRC 2007, 2010 (December 1987)
.
/
"Unwarrantable failure is character.ized by such conduct as
'reckless disregard,' 'intentional misconduct,' 'indifference' or
~ 'serious lack of reasonable care.' [Emery] at 2003-04;
Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February
1991) . " Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994) .
When Kalina went to the bathhouse to get Carr after the
mi sf ire, he was in a hurry. Carr was in his street c.lothes.
Carr was not sure whether he told Kalina whether he wanted to
return to get his hard hat and protective shoes. He testified:
Do you remember if you said anything to him about
not having hard-toed shoes or a hard hat?
Q.

A. I don't think he would have -- I don't think he
would have said, ~we don't have time for that, let's
go," if I wouldn't have said that.

1433

Okay. Do you have a specific recollection of
whether you said it or not?
Q.

A. I really have a hard time with that one. I would
like to say yes, but the only thing I do remember for
sure is when Rich said, "We don't have time for that,
let's go." And that makes me feel that, yes, that is
what I said.
Q. And are you sure that you indicated to him that you
were about to go back?

A.

Oh, yeah.

Q.

Was that through you physical motion?

A.

Yeah, we were walking out the door at the same time.

(Tr. 52.)
On the other hand, Kalina could only state that he could
"not recall" Carr specifically stating that he wanted to get his
protective gear.
(Tr . 616, 617.) He did not testify concerning
whether Carr attempted to return to the bath house or whether he
told Carr, "We don't have time for that, let's go." He did
testify, however, that he was not "thinking about hard toes and
hard hat," he was thinking about the misfire.
(Tr. 616.) He
further testified that he "was not concerned with" the fact that
Carr was in street clothes and did not have a hard hat on.
(Tr.
694.)

Mr. Kalina was the superintendent of the mine. He had 21
years of mining experience. Wearing a hard hat and protective
boots was not a sometime requirement at · the mine, it was required
every day. I find that if Carr did not specifically tell Kalina
that he wanted to get his protective gear, he indicated such by
turning to go back into the bath house. Kalina told him they did
not have time for that even though he was aware that Carr was in
his street clothes. I find that this was inexcusable on the part
of Kalina.
Accordingly, I determine that requiring Carr to go to the
pit to set off a shot that had just misfired without his

1434

protective equipment, was aggravated conduct. Therefore, I
conclude that the two violations resulted from the Respondent's
unwarrantable failure to comply with the regulatio~s.
Civil Penalty Assessment

The Secretary has proposed a civil penalty of $1,000 .00 for
each of these violations. However, it is the judge's independent
responsibility to determine the appropriate amount of penalty, in
accordance with the six cFiteria set out in section llO(i) of the
Act, 30 U.S.C. § 820(i). Sellersburg Stone Co. v. FMSHRC, 736
F . 2d 1147, 1151 (7th Cir. 1964); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).
In connection with the six criteria, the parties have
stipulated that the proposed penalties will not affect the
Respondent's abili ty to continue in business and that the
Respondent is a large mine operator with 5,200,979 tons/hours of
production in \199 4.
(Tr. 6.) The Assessed Violation History
Report for the \ two years preceding these violations indicates
only one citation, for a technica~ reporting violation.
(Govt.
Ex. 1 .) Nonetheless, the gravity and negligence involved in
these violations are very serious. Therefore, taking all of this
into consideration, I conclude that a penalty of $1,000.00 for
each violation is appropriate.
ORDER

Accordingly, Citation No. 3591319 and Order No. 3591320 are
APPIRMED. Knife River Coal Mining Company is ORDERED TO PAY a
civil penalty of $2,000.00 within 30 days of the date of this
decision. On receipt of payment, this case is DISMISSED .

Administrative Law Judge

1435

Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Laura E. Beverage, Esq., and Rebecca Graves Payne, Esq., Jackson
& Kelly, 1660 Lincoln St., Suite 2710, Denver, CO 80264
(Certified Mail)
/lt

1436

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

AUG 9 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 95-781
A.C. No. 15-11121-03504 OHO

v.
Roxana Plant
GLENN'S TRUCKING CO., INC.,
Respondent
DECISIQlf APPRQVING SETTLIMENT
Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner has filed a motion to
approve a settlement agreement and to dismiss the case. A
reduction in penalty from $2,000 to $1 1 350 is proposed. I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
acceptable under the criteria set forth in Section 110(i) of the
Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Responden pay
penalty of
,350 within
30 days of this order.

AI
rj_

Gary Me ck
Adminis · ative Law Judge

/

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard . Jones Road, suite B-201, Nashville, TN 37215
Mr . Glenn Baker, Glenn's ·Trucking Co., Inc., 717 Kentucky Blvd.,
Hazard, KY 41701
/jf

1437

YEDBRAL KINB 8APBTY aJfD BEAL'l'B RZVIBW COMMISSION
OfFICE Of ADM INISTRATIVE LAW .l~GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 2 1996
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
Petitioner

.: ,CIVIL PENALTY PROCEEDING
: Docket No. KENT 96-165
: A.C. No. 15-17231-03530
.
.: Mine No. 9
:

v.

MANALAPAN MINING CO.,
Respondent

DECISION

Appearances:

Before:

MaryBeth Bernui, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Richard o. Cohelia, Safety Director, Manalapan
Mining company, Inc., Brookside, Kentucky, for
Respondent.

Judge .Melick

This case· is .before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. S 801
et seq., the •Act," charging Manalapan Mining Compa~y, Inc.
(Manalapan) with six violations of the mandatory standard at
30 C.F.R. S 50.20 for failing to report certain accidents and/or
occupational injuries.
A settlement motion was presented at bearing with respect to
four of the six violations. In this regard Respondent agreed to
pay the proposed penalty of $200 for Citation Nos. 4252587 and
4252592 in full and the Secretary has agreed to reduce the
penalty proposed for Citations No. 4252590 and 4252591 from $200
to $50. I have considered the representations and _documentation
submitted with regard to these violations and I conclude that the
proffered settlement is acceptable under the criteria set forth
in Section llO(i) of the Act. An order directing payment of the
agreed amount will accordingly be incorporated in this decision.
~o.

As noted, two citations remain at issue. Citation
4252588, issued July 11, 1995, charges as follows:
As a result of a .Part 50 audit it is determined
that a reportable injury occurred to Rodney Sturgill on
4/22/94. The injury was a low back strain which resulted
in extensive medical treatment, including follow-up visits
and physical therapy. The injury was not reported to
MSHA on Form 1000-1.

1438

There is no dispute that the cited injury was not reported
to MSHA as required and that it was indeed a •reportable" injury
within the meani ng of the cited standard . Respondent .maintains
only that •it did not realize that these injuries were reportable
under Part 50 until after t h is case was already in litigation"
(Joint Exhibit No. l) . The violation was alleged to be of low
gravity and was not considered •significant and substantial."
The issues before me are the degree of operator negligence and
the amount of penalty to be assessed within the framework of
Section llO(i) of the Act.
According to Inspector Adron Wilson of the Mine Safety and
Health Administration (MSHA) , during a •part 50 audit" on
July 11, 1995, at the Manalapan No. 9 Mine he examined the
medical records of miner Rodney Sturgill. It was stipulated at
hearing that the documents incorporated in Joint Exhibit No . 6
were the medical records on file with Manalapan•s No. 9 Mine and
the records examined during Wilson's audit. Date stamps on the
documents show their receipt by Manalapan on June 20, 1994, and
in July 1994 . These documents clearly show that Sturgill
received treatment by a physical therapist . According to Wilson
eight visits to a\ physical therapist were recorded.
Wilson maintains that the violation was the result of high
operator negligence . He notes that the documents in Manalapan•s
possession showed that the injury was reportable and this fact
was made obvious by the large number of Sturgill's visits to a
physical therapist and that the amount of workers • compensation
exceeded $200. Wilson further considered, in this regard , the
•1ar9e" number of violations (seven) he cited at this time.
He
noted that he averaged only two to three violations on audits at
other mines . Wilson did not however compare the number of
violations to the size of a particular mine•s work force in his
estimation .
According to Jim Enlow, Manalapan•s Workers• Compensation
Admini strator, at the tine of the noted injury and citation,
company procedures were not adequate to flag an injury such as
the one at bar for reporting to MSHA because it only became
apparent that it was reportable upon receipt by the company of
subsequent physical therapy reports. Under the system then
existing, Enlow knew a condition was reportable only when the
safety director, Richard Cohelia, wrote •reportable" on the
initial •sF-1 Form~ (a state workers' compensation form) prepared
following an injury . Enlow conceded that he did not know the law
well enough to determine whether follow-up medical reports later
showed that an injury became •reportable" tor MSHA purposes.
Presumably, as in this case, since the initial injury as reported
on the •sF-1 Form" did not on its face indicate a •reportable"
injury, that inju.r y was not reported by Manalapan to MSHA. The
fact that subsequent physical therapy reports thereupon made

1439

Sturgill's condition a •reportable" condition was not picked up
under the existing Manalapan system.
Under the circumstances I find that Manalapan•s failure to
report Sturgill's injury was the result of a negligent business
practice. I note that there is no history of violations of the
instant standard at the Manalapan No. 9 Mine nor other evidence
that Manalapan had prior notice of its deficient procedures.
Manalapan also maintains that it has now corrected its reporting
procedures to catch all •reportable" injuries including those
that only later become reportable after subsequent medical
treatment. A civil penal~y of $150 is accordingly appropriate
for the violation herein.
Citation No. 4252589, also issued by Inspector Adron Wilson
on July 11, 1995, also charges a violation of the standard at
30 C.F.R. S so.20. It alleges as follows:
As a result of a Part so audit, it is determined that a
reportable injury occurred to Claude Hickson 4/29/93. The
injury is a degree six injury that requed (sic] splint and
was not ~eported to MSHA on Form 7000-1. Mr. Hickson
received .three weeks restricted duty cleaning around the
feeder and driving a ram car. This is a degree five injury.
In accordance with the stipulation of the parties (Joint
Exhibit No. 1) I find that the injuries to Claude Hickson were
indeed #reportable" within the meaning of the cited standard.
Respondent maintains that #it did not realize that these injuries
were reportable under Part so until after this case was already
in litigation". Under the circumstances only the degree of
operator negligence and the amount of penalty are at issue.
According to Inspector Wilson, Claude Hickson•s medical
records that he examined on July 11 at the Manalapan
No. 9 Mine (Joint Exhibit No. 8) showed an *obvious reportable
injury" requiring sutures. He therefore concluded that the
failure to report the injury was the result of high operator
negligence. It is noted, however, that what Inspector Wilson
interpreted and relied upon to be the word •stitches", appears on
the fifth page of Joint Exhibit No. 8 to be spelled ·*stnica". I
find his reliance in this regard to have therefore been
misplaced. Moreover Richard Cohelia, Safety Director for
Manalapan, testified credibly that he personally drove Hickson to
the doctor after Hickson injured his hand and that Hickson
received no stitches. Hickson also told Inspector Wilson that he
did not recall having stitches.
Under the circumstances I do not find that Hickson had, in
fact, received sutures or . stitches as ·a result of the instant
injury nor did the medical reports indicate that Hickson had

1440

received stitches for this injury. Accordingly it is apparent
that the operator was not thereby placed on notice that Hickson
suffered a •reportable" injury.
Th~ Secretary also argues however that Manalapan was highly
negligent because it should have known that Hickson suffered a
•reportable" injury because he had been placed on •restricted
duty" shoveling coal and was not p~rforming his reqular job of
roof bolter operator . Cohelia testified however that subsequent
to Wilson's Part 50 audit he talked to Ken Clark, the mine
foreman for whom Hickson worked, who told him that they were, in
fact, retreat mining at this time. Hickson was not then roof
bolting but was shoveling coal because of the status of mining
activity and not because of his injury. Moreover, if, indeed,
Hickson had seriously injured his hand as alleged it would be
highly unlikely that he would have been transferred from his
regular job on a roof bolter to the task of shoveling coal. It
may reasonably be inferred that with a hand injury Hickson . could
more easily have performed his regular job operating a roof
bolting machine. Accordingly I do not find that Manalapan had
been placed on notice that Hickson had a •reportable" injury
until such time as it was so apprised by Wilson's audit. Under
all the circum'stances I find Manalapan chargeable with but little
negligence . A civil penalty of $50 is accordingly appropriate
for the violation .

OBDER

The citations at bar are affirmed and Manalapan Mining
Company, Inc. is directed to pay the following civil penalties
totaling $700 within 30 days of the date of this c:tecision:
Citation No. 4252587 - $200, Citation No. 4252588 - $150,
Citation No. 4252589 - $50, Citation No.N252590 - $50,
Citation No. 4252591 - $50, Citation No. 4252592 - $ oo .
I

\\. 'lAAAl:~
~
r \
~-

I

Gary Melick
\ :.
Admini~ative LaW\Judqe

1441

'-

Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, U.S • . Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Richard D. Cohelia, Safety Director, Manalapan Mining Co., Inc.,
P.O. Box 311, Brookside, KY 40801-0311 (Certified Mail)
\jf

1442

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

AUG 14 1996.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Petitioner

v.

PRIMROSE COAL COMPANY,

:

CIVIL PENALTY PROCEEDINGS

:

Docket No. PENN 96-125
A.C. No. 36-04629-03543

:

Docket No. PENN 96-148
A.C. No. 36-04629-03544

:

Respondent

Docket No. PENN 96-158
. A.C.
No. 36-04629-03542
Mine:

Primrose Slope

PECISION
\

Appearances:

Susan M. Jordan, Esq., Office of the Solicitor,
u.s. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
David s. Himmelberger, Partner, Primrose coal
Company, Tremont, Pennsylvania, pro se.

Before:

Judge Melick

These consolidated civil penalty proceedings are before me
pursuant to Section lOS(d) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. S 801 et seq., the *Act,~ to challenge
citations issued by the Secretary of Labor to the Primrose Coal
Company (Prim.r ose) and to contest the civil penalties proposed
for the violations charged therein. The general issue before me
is whether Primrose violated the cited standards and, if so, what
is the appropriate civil penalty to be assessed considering the
criteria under section llO(i) of the Act.
Settlement motions were considered at hearing as to all
violations except those charged in Citation Nos. 4149821 and
4152240. In connection with the settlement motion; a reduction
in penalties -from $460 to $443 was proposed. I have considered
the representations and documentation submitted in connection
with the motion, including documents submitted at trial, and I
conclude that the proffered settlement is acceptable under . the
criteria set forth in Section llO(i) of the Act. An order
directing payment of the agreed amount will accordingly. be
incorporated in this decision.
The two citations remaining at issue arose from an
investigation by the Mine Safety and Health Administration (MSHA)

1443

of a fatal electrical accident at the Primrose Coal Slope on
March 30 , 1995 . The victim, Charles J. Frederick, an employee of
Primrose, came in contact with an energized slope car. and the
frame of a 480 volt slurry pump. According to t he investigation ,
the slope car and pump frame became energized when ~aults
occurred in the electrical system.
Citation No. 4149821 alleges a •significant and substantial"
violation of the standard at 30 C. F.R. S 75.518 and charges as
~ollows:

The 3 phase 480 volt'J.7 horsepower motor on the Flyght pump
(model 3060 SS) used to wash coal from the No . 1 Breast, was
not provided with an automatic circuit breaking device to
protect against overload, or that would deenergize all three
phases in the event any phase was overloaded. Three 30 amp
fuses were improperly used to provide this protection . This
condition was observed during a fatal electrical accident
investigation.
The cited standard, 30 C.F . R. S 75.518, provides in relevant
part that •3-phase motors on all electrical equipment shall be
provided with overload protection that will de-energize all three
phases in the event that any phase is overloaded."
Citation No. 4152240 charges a •significant and substantial"
violation of the standard at 30 C.F.R . S 77 . 701 and charges as
follows:
The metallic frames and enclosures of all 3 phase 480 volt
equipment in use at the mine were not grounded by methods ·
approved by an authorized representative of the Secretary.
Failure to connect the surf ace equipment frames to a low
resistance ground field resulted in, and increased the
probability of, a difference of potential existing between
the surface and underground equipment frames.
The cited standard, 30 c.F.R. S 75.701, provides that
•metallic frames, casings, and other enclosures of electrical
equipment that can become •alive" through failure of insulati on
or by contact with energized parts shall be grounded by ·methods
approved by an authorized representative of the Secretary ~ " It
is noted that the standard at 30 C. F.R. S 77.701-1 sets forth
several of the approved methods of qrounding equipment receiving
power from ungrounded alternating current power systems.
There is no dispute in this case that the violations existed
as charged, were •significant and substantial• and were of high
9ravity. It is further undisputed that these violative
conditions were causati ve factors in the death of
Charles Frederick. Under the circumstances the parties agreed at
hearing that the only issues to be litigated were the operator's

1444

negligence, if any, and the amount of civil penalty to be
assessed giving particular consideration to •the effect on the
operator's ability to continue in business".
It is undisputed that David Himmelberger, one of two
Primrose partners, was the MSHA certified electrical examiner at
the subject mine during relevant times and was responsible .for
the required weekly and monthly electrical examinations.
According to the expert testimony of MSHA electrical inspector
Bill Hughes, both of the violations should have been obvious to
a certified electrician and should therefore have been known to
Himmelberger . In additio~, Hughes testified that neither of the
violative conditions were reported in the appropriate examination
books . In regard to the violation charged in Citation
No. 4152240, it is particularly noted that the unconnected ground ·
wire was hanging in plain view. (See photograph Exhibit G-12).
In his answer filed in this case and as purported grounds
for reduced negligence, Primrose alleges as follows:
The mine was inspected one month before and there was
no problem. The circuit breakers that we were fined
for was not inforced [sic ) by MSHA for years. The mine
was not inspected for years by an MSHA electrical
inspector.
At hearing Himmelberger testified that he had been operating
the subject mine since October 1991, and had then received an
MSHA #courtesyft inspection. He has subsequently been inspected
by MSHA each quarter but has never had an MSHA electrical
inspection. Indeed, it is undisputed that only one month before
the instant citations were issued, MSHA had inspected this mine
and the violations at issue were not then cited. Himmelberger
also claims, and it has not been disputed, that the conditions
cited herein were the same as when he began operating this mine
in 1991. He also maintains that he did not understand at the
time these conditions were cited that they were violations.
I agree with the Secretary that a certified electrical
inspector such as Mr. Himmelberger should have the qualifications
to know that the cited conditions were violative. Under the
circumstances I give but little weight to_Himmelberger's claims
of ignorance. I have also considered Respondent's claims· that
MSHA should have previously discovered and cited these apparent
obvious violative conditions either at the ti-.e of its courtesy
inspection when the mine began operations under Himmelberger's
control in October 1991 or thereafter during what must have been
12 to 14 regular quarterly inspections. The absence of any MSHA
electrical examination during this period also raises some
concern. However whether or not MSHA was itself negligent in
failing to conduct an electrical inspection at this mine for more
than three years and in failing to detect these violations during

1445

a courtesy inspection or durinq as many as 14 reqular quarterly
inspections, under the circumstances of this case would not in
any event mitiqate Respondent's own negliqence herein. As the
mine•s certified electrical inspector, Himmelberqer · should
clearly have known of those violative conditions. Under the
circumstances and considering all of the criteria under Section
llO(i) of the Act I find that civil penalties of $1,800 and
$1,700, respectively, for Citation Nos. 4149821 and 4152240 are
appropriate.
In reaching this conclusion I have not disregarded
Respondent's claims of financial problems, however, the evidence
is insufficient to warrant any further reduction. It is noted
that he is no longer operating the subject mine and the operating
partnership no longer exists. Furthermore, Himmelberqer reported
$40,000 in taxable income for 1995.
OR.DER

The citations at issue are hereby affirmed and Primrose Coal
Company is hereby directed to pay civil penaltie of $3,943
within 3 .0 days of the date of this decision.

Ii

I

I

I

Mel''t I

Gary
Administ 1tive

Judg"

Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Dept . of
Labor, Room 14480, Gateway Bldg., 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
David s. Himmelberger, Partner, Primrose Coal Company, 214 Vaux
Avenue, Tremont, PA 1981 (Certified Mail)
/jf

1446

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

AUG 2 3 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
HARLAN CUMBERLAND COAL co.
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 96-20
A.C. No. 15-07201-03671
Docket No. KENT 96-64
A.C. No. 15 - 07201-03672

I

Docket No. KENT 96-70
A.C. No. 15-07201-03673
Docket No. KENT 96-77
A. C. No . 15-07201-03674
C-2 Mine
Docket No. KENT 96-50
A.C . No. 15-08414-03634
H-1 Mine
DECI SI ON

Appearances:

Marybeth Bernui, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
Charles H. Grace , Mine Safety Health
Administration, Barbourville, Kentucky, and Ronnie
Russell, Mine Safety and Health Administration,
Gray, Kentucky for the Petiti oner;
William A. Rice, Esq., and H. Kent Hendrickson,
Esq., (.on Brief) Rice and Hendrickson, Harlan,
Kentucky for the Respondent.

Before:

Judge Weisberger

1447

Statement of the Case
These cases are before me based upon petitions for
assessment of penalty filed by the Secretary of Labor
(Petitioner) alleging violations by Harland Cumberland Coal
Company (Respondent) of various mandatory safety standards set
forth in title 30 of the Code of Federal Regulations. Pursuant
to notice, a hearing was held on May 29, 1996, in Johnson City,
Tennessee.
I.

Docket Nos. KENT 96-20 and KENT 96-50

Subsequent to the hearing, Petitioner filed a joint motion to
approve settlement regarding these docket numbers. A reduction
in penalty from $3,303 to $2,282 is proposed. I have considered
the representations and documentation submitted, and I conclude
that the proffered settlement is appropriate under the criteria
set forth in $ection llO(i) of the Act.
II.

Docket No. KENT 96-64
A.

Citation No. 4578060.
1.

Violation of 30 C.F.R.

§

75.202(a)

On August 21, 1995, Larry Bush an MSHA Roof and Ventilation
Specialist, inspected the No. 1 entry at Respondent's C-2 Mine.
This entry was ventilated by intake air and was traveled daily by
miners going to and from the working face. He observed stresses
and fractures in the roof in the area between crosscuts forty-one
and forty-two. In addition, he observed cutters, or breaks, in
the roof that extended along both ribs parallel to the length of
the entry. Looking inby, the cutters on the right r~b extended
approximately 116 feet from crosscut forty-one to crosscut
forty-two. The cutters on the left rib extended from crosscut
forty-two outby beyond crosscut forty-one. Respondent's only
witness, its Superintendent, Jeremy Madon, did not rebut this
testimony regarding the condition of the roof and ribs. Nor did
Respondent impeach this testimony. Accordingly, I accept Bush's
testimony regarding his observations of the conditions of the
roof.

1448

According to Bush, the roof was supported by a series of
roof bolts that were four feet apart, and located w~thin four
feet of the ribs. According to Madon, additional support was
provided by thirteen straps that were thirteen feet long, and ten
inches wide. The straps were placed approximately four feet
apart, perpendicular to the ribs ih the area between crosscuts
. forty-one and forty-two. Cribs had been stacked from the floor
to the ceiling, at cro sscut forty -one at the corner of pillar
forty in the adjacent No. 2 entry, which was separated from the
entry at issue by a sixty f oot wide block of coal. Seven f oot
long d ouble shuc k bo lts had been placed in the ceiling of the
No . 2 entry. Madon opined that the area in question was well
supported, and that the placement of additional cribs would
restrict the width of the eighteen foot wide entry by
approximately three and a half feet. According to Madon, the
restriction in the width of the entry might result in a vehicl e
corning in contact with the cribs, causing them to fall.
Bush indicated that on July 4 , 1995, a rock fall occurred a t
Break f o rty-one in the No. 2 entry. He noted that the roof of
the No . 2 entry, and the entry at issue contain the same strata,
i.e . , banded sandstone al}d slate, which he described as being
"especially really slick" (Tr. 18). Bush indicated, in essence,
that the cuttez:s that ran "along both ribs" (Tr. 20), were four
feet from the ribs. He explained that the bolts were
insufficient as f ollows:
The cutters along both ribs is an indication of failure
of the roof, and a cutter will if not supported,
continue to cut or break above that bolt, the rising
anchorage of the bolt pattern.
Once it breaks above
that bolt length or above the four foot at that point,
then the slick and sided slate with the banded
sandstone layers will separate causing the roof to
fail. A cutter along one rib is a bad condition, but
both ribs, when it cuts along both ribs then it's
you .know, potential for failure is a lot greater. (sic )
(Tr . 2 0 - 21 ) .
Based upon the uncontested existence of stresses and
fractures in the roo f, as well as extensive cutters along both
ribs, and the fact there was a rock fall at crosscut forty-one in
the adjacent entry less than two months prior to August 21, I

1449

find that the roof and ribs of the area in question were not
supported or controlled to protect the miners who travel the area
from hazards related to rock falls from the roof and ribs.
Accordingly, I find that Petitioner has established that
Respondent violated 30 C.F.R. § 75.202(a) as alleged by Bush in a
section 104(a) citation that he had issued on August 21, 1995. 1
2.

Significant and Substantial

Bush characterized the violation he cited as significant and
substantial.
A "significant and substantial" violation is described in
section 104(d) (1 ) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division.
N?tional Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984 ), the
Commission explained its interp.retation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3f a reasonable

1

30 C.F.R § 75.202(a), as pertinent, provides as follows
"the roof, . . , and ribs of areas where persons work or travel
shall be supported or otherwise controlled to protect persons
from hazards related to falls of the roof, face or ribs and coal
or rock bursts."

1450

likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injur:y." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substant~al.
U.S. Steel Mining Company. Inc., 6 FMSHRC
1866, 18GB (August 1984); U.S. Steel Mining Company .
.I.n.Q., 6 FMSHRC 1573, 1574-75 (July 1984).
I find that because there was no specific support for the
extensive cutters, that the hazard of a roof fall was contributed
to by the instant violation. Further, due to the extensive
cutters on both ribs, the fact that there was a recent rock fall
in the area of the forty-one crosscut in the adjacent entry, I
find that it was reasonably likely that the violation would have
resulted in an injury producing event. Madon opined that the
roof was well supported, and that there was no likelihood of
injury. However, he did not provide the specific basis in any
detail for these opinions. They thus are not accorded much
weight. Further, since persons regularly travel in the area, I
find that it was reasonably likely that any injury sustained as a
result of the violation herein would have been of a reasonably
serious nature.
I thus find that it has been established that
the violation was significant and substantial.
3.

Perialty

Although the . violative conditions were .of a moderately high
level of gravity as _they could have caused a serious injury, I
find that a pena~ty to be as$essed should be mitigated by the '
lack of proof that Respondent was negligent to more than a slight

1451

degree. Specifically there is no evidence as to how long the
roof conditions, as observed by Bush, had existed. There is no
evidence that these conditions were in existence when last
examined. I find that a penalty of $700 is appropriate for this
violation.
B. Citation No. 4253261.
On August 15, 1995, MSHA Inspector, William R. Johnson,
instructed the operator of a scoop located at Respondent's C-2
mine, to deenergize the scoop by touching the panic bar.
According to Johnson, if the panic bar is depressed, the elec~ric
system on the scoop should become deenergized, and the hydraulic
break system should cause the vehicle to stop. Johnson observed
that the operator touched the panic bar, but did not place his
foot on the foot brake. The scoop's engine and lights were
deenergized.
According to Johnson, the terrain upon which the
scoop was facing was on a one percent decl~ne. According to
Johnson, the sco~p kept rolling for about ten feet and then
"[j]ust coasted to a stop" (Tr. 61). According to Johnson if the
scoop was left parked on the grade and unattended it could roll
and strike some,o ne. He also indicated that if ". . . something
happens to the electrical system and contactor's stick, this
scoop would be a runaway. And this has happened numerous times
in mining. The panic bar would de-energize this machine but it
would still keep going" (Tr. 62). Madon, who was present,
testified that the scoop traveled about ten feet after the panic
bar was pressed, and then "kind of abruptly stopped" (Tr. 75).
Johnson issued a citation alleging a violation of 30 C.F.R.
§ 75.523-3(b) (1) which provides as follows "automatic emergencyparking breaks shall-(1) be activated immediately by the
emergency deenergization device required by 30 C.F.R. § 75.523-1
75.523-2:" (Emphasis added).
There is no evidence that the parking brakes were not
immediately actiyited by the depression of the panic bar. 2 There
is no evidence that there was any defect in any connection that
2Johnson

indicated that the brake calipers had mud and water
on them. Madon indicated tht to abate the citation, the calipers
on the disc were tightened to make them collapse quicker.
However, there is no evidence that these conditions could have
caused the brakes not to activate upon depression of the panic
bar.

1452

had to be made between depression of the panic bar, and the
operation of the parking brakes. At most, the evide~ce
establishes that the parking brakes engaged after the scoop had
rolled 10 feet subsequent to the depression of the panic bar. In
this connection, I note that section 75.523-3 (b) (2) provides that
the automatic emergency parking brakes shall "engage automati cally within 5.0 seconds when the equipment is deenergized;"
(Emphasis added) . Hence, it would appear that the regulatory
scheme contemplates a two-step procedure. First the automatic
parking brakes are to be "activated immediately" , and then they
must automatically engage within five seconds after the panic bar
is depressed. The regulatory scheme is consistent with the
common meaning of the term "activate". Webster's Third New
International Dictionary (1979 Edition), ("Websters") defines
"activate" as "to make active", whereas "engage", is defined in
Webster's as "l(e) to come in contact or interlock with . . .
.a.l.s,Q: to cause (parts) to engage."
For the above reasons, I find that the evidence fails to
establish that the parking brakes were not immediately activated
by the depression of the panic bar. I thus find that it has not
been established that Respondent violated section 75.523-3(b) (1)
supra, as alleged. Therefore Citation No. 4253261 is to be
dismissed.

c.

Citation No. 4253300
1.

violation of 30 C.F.R § 75.517

On Augus t 15, 1995, Johnson inspected a cable on a shuttle
car that was in operation. He observed that there were two cuts
in the outer jacket of the cable. Each cut was approximately one
and a half inches long, and one eighth of an inch wide. He
indicated that one inner insulated lead was exposed. According
to Johnson the cable was designed to be handled, and if there
were to be a defect in one of the inner leads, stray current
could escape and injure the person who was handling the cable.
Johnson issued a citation alleging a violation of 30 C.F.R.
75.517 which provides as follows: "Power wires and cables,
. . . ·shall be insulated adequately and fully protected."

§

1453

On cross-~xamination, Respondent elicited from Johnson that
the trailing cable at issue is normally handled only when the
power is off, and that its inner cables were well insulated.
I reject Respondent's defense. I find that in order for
Section 75.517, supra, to be complied with, a cable must both
adequately insulated, and fully p~otected. Since Respondent did
not impeach or contradict Johnson's testimony that there were
~ cuts, each one more than an inch long and an eighth of an
inch wide, I find that the cable was not adequately insulated and
fully protected. I thus find that Respondent violated Section
75.517, supra.
2.

Significant and Substantial

According to Johnson, the floor of the mine was wet. He
opined .that a \person handling the 480 volt cable, and standing in
a wet or muddy.'. floor, could suffer an electrical shock or burn
should stray current escape from one of the inner leads. He
indicated that this could occur should there be a pinhole in one
of the inner cables. He said that there is no way to know if the
inner cables were damaged.
There is no evidence that there were any defects in any of
the inner cables. Nor is there any evidence that there was any
condition in existence which would have made it reasonably likely
that an inner cable defect would have occurred. For these
~easons, I find that it has not been established that an injury
producing event was reasonably likely to have occurred as a
result of this violation. I thus find that it has not been
established that the violation was significant and substantial.
3.

Penalty

There is no evidence as to how long the violative condition
existed. Johnson opined that since he found the condition -at
8:00 a.m., it had existed for at least since the start of the
shift at 6:00 a.m., and that someone should have known of the
condition. Respondent did not rebut or impeach this opinion. I
find that Respondent's negligence was only moderate. Considering
the remaining factors as set forth in section llO(i) of the Act,
I find that a penalty of $200 is appropriate.

1454

D.

Citation No. 4253297
1. violation of 30 C.F.R.
a.

§

75.202(a)

Johnson's Testimony

On August 15, 1995, at approximately 6:30 a.m., Johnson
observed "loose draw rock" (Tr. 105 ) approximately three feet by
three feet by four inches thick in the center of the roof of the
return entry on the 004 unit. The draw rock, which was located
three crosscuts outby the face, was not attached to the roof.
According to Johnson, an area at one end of the rock,
approximately five inches by five inches, was supported by a
strap. Johnson testified that the straps were located on four
foot centers, and that there was another strap that was located
near the other end of the rock, but was not supporting 'it.
Johnson issued a citation alleging a violation of Section
75.202(a), supra.
b.

Respondent's Evidence

Respondent's witnesses, Eddie Sargent, the Safety Director,
and Madon, who were present with Johnson, indicated that the draw
rock was somewhat larger than testified to by Johnson, and was
supported by two straps, one on either end of the rock. Both
Sargent and Madon maintained, in essence, that the rock would not
have fallen because it was supported by the straps. Madon
indicated that in his opinion it was more of a danger to take the
rock down than to have left it in position.
c.

Discussion

Neither Madon nor Sargent rebutted Johnson's testimony that
men were required to travel in the area below the cited draw
rock. The evidence is in conflict as to whether the draw rock
was resting on one or two straps. However, it is not necessary
to resolve this conflict. All witnesses agree that the rock was
not attached to the roof, and that there was a gap between the
rock and the roof. Further there is basic agreement as to the

1455

approximate size of the rock. None of the witnesses could
establish the supporting capacity of the straps. ~owever, it is
significant that there was no evidence that the straps were
designed to support draw rock. Indeed, Madon indicated that the
main reason for using straps is to bond the roof together. 3
Further, the potential instability of the draw rock might be
inf erred by the fact that when Madon removed the draw rock to
abate the citation he indicated that he used a pry bar to "[k]ind
of pushed it" (Tr. 129). There is no evidence that he had to use
an inordinate amount of pressure to pry the rock loose or that it
took a significant time to push it loose.
Hence, I find that even if the draw rock was resting on two
straps, that it was not supported to protect miners traveling
below the rock from the hazard related to a possible fall of this
rock. I thus find that it has been established that Respondent
did violation Section 75.202(a), supra.
2.

Significant and Substantial

According to Johnson, and not contradicted or impeached by
Respondent's witnesses, three or four pieces of draw rock,
approximately, ten inches by ten inches by one inch, were lying
on the floor in the area. Since there was no contradiction of
Johnson's testimony that these items were pieces of draw rock, it
might reasonably be inferred that they had fallen from the roof .
Further, since the straps, upon which the draw rock in question
was lying, were not designed to support loose unattached draw
rock, I find that, over time, it was reasonably likely that the
violation herein would have contributed to the hazard of a rock
fall. Further, since miners regularly travel in the area, I find
support for Johnson's testimony that it was reasonablely likely
that miners would suffer reasonably serious injuries .to their
head or limbs, as a result of the violative condition. I thus
find that it has been established that the violation was
significant and substantial.

Af ter indicating that the main reason for the use of straps
was to bond the roof together he was asked "[n]ot for loose
material?" He answered as follows" [t]hat what we're trying to
hold is draw rock when you use straps" (sic.) (Tr. 134).
3

1456

3.

Penalty

Respondent's witnesses noted the fact the draw rock was
loose and not attached to the roof, and was resting on two
straps. They did not contradict Johnson's testimony that this
condition was obvious. Nor did they contradict or impeach his
testimony that because there were a number of pieces of draw rock
lying on the floor in the area, that the condition of the loose
unattached draw rock "probably didn't just happen" (Tr. 113). I
thus conclude that Respondent's negligence was more than
moderate. I find that a penalty $500 is accordingly appropriate
for this violation.
E.

Citation No . 4253298.
1.

Violation of 30 C.F.R § 75.516

On August ·l5, 1995, Johnson cited Respondent for violating
30 C.F.R. § 75.516, which provides that power wires " . . . shall
be supported on well - insulated insulators . . .
''
30 C.F.R § 75.516-1 provides that "well-insulated-insulators is
interpreted to mean well-installed insulators . . . . " At the
hearing, Respondent admitted this violation. According to .
Johnson's testimony, a 480 volt cable attached to an energized
charger was not hung on insulated hangers. Based1 on this
testimony and Respondent's admission I find that Respondent
violated 30 C.F .R § 75.516 supra.
2.

Significant and Substantial

Madon indicated that "normally" the power center which
contains the subject charger is moved every other day. He also
indicated that the cable was in good condition . He opined that
there was no danger to miners occasioned by the cable lying on
the ground.
On the other hand, Johnson testified that although there was
no draw rock in the area, the mine does have a history pf draw
rock being found in the roof. He also indicated that the floor
was muddy, and the cable was lying in the floor. According to
Johnson, miners travel in the entry at issue which serves as the
travelway to the working face and also as the primary escapeway.

1457

Within the above framework I find the violation was not
significant and substantial. Specifically, it has not been
established that there was a reasonably likelihood of an injury
producing event (c.f., U.S. Steel, supra}. In the case at bar,
in order for there to be an injury producing event, there must be
some defect in the insulation of the cable. There is no evidence
that the cable was not well insulated. There is no evidence of
any defect in the outer insulation of the cable. Also, the
record does not establish that there was a reasonable likelihood
of the occurrence of an event which would have had a reasonable
likelihood of breaking the insulation of the cable. Although
there was a history of draw rock in the roof, Johnson indicated
there was no draw rock in the area. Also, there was no evidence
that the roof in the area at issue was not in good condition.
Also Madon's testimony that under normal mining conditions the
power center containing the charger at issue would be moved every
other day, hence limiting exposure of the cable, was not
contradicted, or rebutted, or impeached. I thus find that it has
not been established that the violation was significant and
substantial.
3.

Penalty

Johnson opined that the cable lying on the floor was a
"pretty obvious violation" (Tr. · 149). He indicated that the
foreman would have made a on shift examination of the area an
hour prior to the issuance of the citation at 7:30 a.m .. He also
indicated that men regularly work and travel in the area.
According to Madon only about thirty feet of the 200 foot
cable was not hanging. He also indicated that the cable was in
good condition, and that it gets knocked down inadvertently on
occasion. I find that the condition was pbvious, and that
Respondent's . negligence was more than moderate. I find that a
penalty of $200 is appropriate.
F.

Citation Nos. 4253258. 4253260. 4578055.
4578057. 4578058. 4253267. and 4253270

Petitioner filed a motion to approve a settlement agreement
regarding these citations. A reduction in penalty from $3,018 to
$1,835 is proposed. I have considered the representations and
documentation submitted in this case, and I conclude that the

1458

proffered settlement is appropriate under the criteria set forth
in Section 110(i) of the Act.
III.

KENT 96-70
A. Citation No. 4578562.
1.

violation of 30 C.F.R § 75.340(a) (1)

According to Johnson, when he inspected the 005 unit, he
observed that a 480 volt scoop battery charger was located in an
intake airway leading to the working face. He indicated that
there was nothing in place to divert the air ventilating the
charger from the face. Specifically he said that there were no
curtains or brattices in place.
Johnson issued a citation alleging a violation of 30 C.F.R.
§ 75 . 340(a) (1) which provides, as pertinent, that battery
charging stations shall be " . . . [v]entilated by intake air
that is coursed into a return air course or to the surface and
that is not used to ventilate working places:
"
According to Madon, the charger at issue was located at the
mouth of the No . 5 right entry. He said that he was present when
the station was placed at that location, and that at the same
time a brattice was built adjacent to the charger. A two by four
inch hole was left at the top of the brattice between the top of
the brattice and the roof of the mine, to allow air in the area
of the charger to be ventilated to a return entry. Madon
indicated that from the return entry the air was pulled outside
the mine by way of a fan.
According to Madon, Johnson stated that the hole in ·the
brattice should be made bigger to ventilate the charger . Madon
said that in response, he enlarged the hole at the top brattice
to a six inch square .
I observed the witnesses' demeanor and· I find Madon to be
more credible regarding the location of the charger. Further,
Madon's testimony provided more detail. Johnson's contemporaneous notes indicate that the charger was in intake air, was
not being ventilated into the return airway, and that air was

moving across the unit. However, the notes do not indicate the
presence or ab~ence of any ventilation controls such as a curtain
or brattice. For these reasons, I accept Madon's testimony
regarding the location of the charger when cited by Johnson,
i.e., at the mouth of the No. 5 entry. Given this location, the
Secretary must establish that, when cited, the hole in the
brattice was ·too small to allow air coming across the charger t o
be ventilated to the return, and that instead it was being
ventilate d down the intake airway t o the face. I find that the
Secretary has failed to meet this burden. Johnson did not
present any test imony to establish the inadequency the hole in
the brattice to vent i late gases from the charger to the return.
I thus find that the· Secretary has failed to establish that the
air that ventilated the charger was not being coursed to the
return. I thus find that this citation should be dismissed, as
Petitioner has not established that Respondent violated Section
75.341, supra .
B.

Citation No . 4578564.
1.

Violation 30 C.F.R.

§

75.370(a ) (1)

On September 21, 1995, while inspecting the 005 unit,
Johnson observed that the miners in on the section did not
have any self contained, self-rescue ("SCSR" ) equipment, and
emergency sources of oxygen. Johnson indicated that the SCSRs
were located in a storage area approximately 200 feet from these
miners. He issued a citation alleging a violation of 30 C.F.R.
§ 75.370 (a ) (1) which, in essence, requires Respondent to develop
and follow an approved ventilation plan. The pertinent
supplement to the ventilation plan provides that "SCSRs" will be
maintained at al l times, within twenty-five feet of all persons
working within the two entry setup" (sic) {Government Exh. 9,
p. 7 ) •

Johnson indicated that the area in question was a two entry
setup. Respondent did not contradict or impeach this testimony,
and acc ordingly it is accepted. I thus find that inasmuch as the

1460

SCSRs were not within twenty-five feet of the persons working
within the two.entry setup, that Respondent was not in complian~e
with its ventilation plan, and accordingly violated Section
7 5 . 3 7 O (a) (1 ) supra .
2.

Significant and Substantial

Johnson explained that the 005 unit was a two entry setup
consisting of only an intake an a return entry. Hence, any smoke
arising within the unit would contaminate both entries. Such a
situation would contribute to the hazard of smoke inhalation.
Johnson explained that should a fire or smoke be present in the
unit, eight of the miners working there would not be able to
escape into the smoke filled escapeway, as the SCSR equipment was
not within twenty-five feet of where they were working. Based
upon this analysis, Johnson concluded that the violation was
significant and substantial. On the other hand, Macon opined
that the violation was not significant and substantial, that
there was no likelihood of injury, and that there were no hazards
in the immediate area.
Within the above framework, I find that the Secretary has
failed to adduce evidence of any condition which would have made
an injury producing event, i.e., the creation of a smoke or a
fire, reasonable likely to have occurred. I thus find the
violation was not significant and substantial.
3.

Penalty

Johnson indicated "that it's an obvious violation . . .
because it's sitting there in plain view" (Tr. 167). Respondent
has not offered any evidence to mitigate its negligence. Taking
this factor into account, I find that a penalty of $700 is
appropriate for this violation.
C.

Citation Nos. 4253271. 4253273. 4253274. 4253275.
4253276. 4253277. 4253278. 4253279. 4253280.
4578561. 4578565. 4253296. and 4253266

Petitioner has filed a motion to approve settlement
agreement regarding these citations. A reduction in penalty .
from $5,178 to $3,423 is proposed. · I have considered the
representations and documentation ·submitted in this case, and I

1461

conclude that the proffered settlement is appropriate under the
criteria set forth in Section llO(i) of the Act.
IV. Docket No. KENT 96 -77.
A.

Citation No . 4253268
1.

Violation of 30 C. F . R.

§

75 . 325(b)

On September 5, 1995, Johnson i ndicated that there was no
measurable air movement on the 004 unit. He issued a citation
which was subsequently amended to allege a violation of 30 C.F.R .
§ 75.32S (b) which, in essence, requires that the quantity of air
reaching the last open crosscut be at least 9,000 cubit feet per
minute. Respondent admitted this violation. Accordingly and
based upon the testimony of Johnson, I find that respondent did
violate· 30 C.F.R. § 75.32S(b).
2.

Significant and Substantial

Madon opined that the violation was not significant and
substantial. In this connection he noted that normally there are
were only two people working in the "miner area" (Tr. 220) . On
the other hand , Johnson explained that in the absence of the
movement of air in the face, coal dust and methane could
accumulate creating a hazard of an explosion or a fire . Although
he did not find any methane in his examination, he indicated that
the mine is considered a gassy mine. Respondent did not rebut or
impeach this testimony . Johnson further opined that with
continued mining, it would be reasonably likely to have an
accumulation of methane present as there is methane present in
the coal bed. Respondent did not impeach or contradict this
testimony. Johnson further explained that it was reasonably
likely that an accumulation of methane or dust, as a ' consequenc~
of the lack of movement of air, would be reasonably likely to
have resulted in a fire or explosion due to the presence of
various ~gnition sources. In this connection he noted that an
arc might be "encountered" with the operation of the mining coal
or the bolter (Tr . 213) . This testimony also was not
contradicted or impeached. Johnson also indicated that should a
f i re or explosion occur serious injuries would be expected due to
the fact that miners would suffer burns or possibly fatal
injuries. Re spondent did not impeach or contradict this

1462

testimony. Within the framework of this record, I find that the
violation was significant and substantial.
3.

Penalty

According to Johnson, the foreman had made an on shift
examination prior to his (Johnson's) examination, and that
foreman had been "all over this working area all" day (Tr. 217).
Johnson indicated that it took an hour to abate the violation and
restore the airflow to more than 9,000 cubit feet a minute. He
indicated that the mine is more than four miles deep, and the
ventilation fan that was present at the time was outdated. He
indicated that in order to abate the violation curtains were
adjusted.
On the other hand, Madon stated that he was present when a
curtain was rehung in the No. 2 entry to abate the citation. He
estimated it took 10 to 15 minutes to increase the airflow to
more than 9,000 cubit feet a minute.
I find based upon observations of the witnesses' demeanor,
that Madon' s testimony was more credible. Furt.her, I find,
predicated upon Madon's testimony, which was in turn based upori
his personal observation, that the violation was caused by the
lack of a curtain which had to be rehung. There is no evidence
as to when this curtain had to been originally installed, nor is
there any evidence when and how it become lose or dislodged.
Accordingly, I find that the level of Respondent's negligence to
have been of a low degree. I find that a penalty of $500 is
appropriate for this violation.
ORDER

It is ORDERED that, within 30 days of this decision,
Respondent pay a total civil penalty of $10,340.
It is further ORDERED that Citation Nos. 4253261 and 4578562
,Pe DISMISSED.

~is~

Administrative Law Judge

1463

Distribution:
MaryBeth Bernui, Esq . , Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville,
TN 37215 (Certified Mail)
Ronnie Russell, HC 35 , Box 167-4, Gray, KY 40737 (Certified Mail)
Charles Grace, Conference and Litigation Representative,
HC Box 1762, Barbourville, KY 40906 (Certified Mail)
Douglas N. White, Esq . , MSHA, 4015 Wilson Blvd., Arlington,
VA 22203 (Certified Mail)
H. Kent Hendrickson, Esq., and William Rice , Esq., Rice &
Hendrickson, P.O. Box 980, Harlan, KY 40831-0980 (Certified Mail)

/ml

1464

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

AUG 2 31996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 92-329
A.C. No. 29-00097-03540

I

v.

Docket No. CENT 93-272
A.C. No. 29-00097-03545

BHP MINERALS INTERNATIONAL,
INC.
Respondent
I

Navajo Mine

DECISION AFTER REMAND

Before:

Judge Amchan
Procedural History

On August 19, 1996, the Commission reversed my decision
vacating citation 4060870, which alleged that Respondent had
violated 30 C.F.R. § 77.506 in setting the ins~antaneous circuit
breaker for an air compressor at an imperrnissibly high level.
The Commission remande d the case to me to determine whether the
violation was significant and substantial (~s&S") as alleged, and
to assess a civil penalty. The Secretary proposed a penalty of
$793 for this violation.
However, t~e Commission and its judges
assess civil penalties de noyo pursuant to the criteria in
section llO(i) of the Act.
Fi ridings
I determined that the instantaneous circuit breaker in
question would trip at 6000 amperes. This exceeds 1300 ·p ercent
of the full-load current of the compressor's motor (approximately
438 amperes) . This setting violates the requirements of
section 430-52 of the National Electric Cod~ (NEC}, whose
requirements are adopted by section 77.506 of MSHA's regulations.

1465

Section 43 0-52 provides that an instantaneous breaker must be set
at the lowest setting capable of carrying the "normal starting
load" of the motor, but in no case more than 1300 pe.r cent of th·e
motor's full-load current . I vacated the citation because I
concluded that the standard did not provide Respondent with
adequate notice of its requirements.
The Commission concluded, however, that "in light of the
testimony of all witnesses that the breaker was required to be
placed on the lowest possible setting to start the motor and
unrebutted testimony that.the higher settings are reserved only
for rare cases involving special equipment that cannot start at
lower settings, .. . a reasonably prudent person would have
recognized that placing the instantaneous breaker on the highest
setting would not provide adequate overcurrent protection as
required by section 77.506." (C .D. at page 5).
As the Commission noted, the circuit breaker in question was
a thermal breaker as well as an instantaneous (magnetic) breaker
{Tr. 91-92, 99-100). This means that it will trip out thermally
on an overheating condition, and it will trip . instantaneously due
to a short circuit (Id.). The thermal overload protection will
also protect against short circuits when properly sized
(Tr . l 0 6 - 07 ) .
While the Commission held that the existence of the thermal
breaker did not negate a violation, it noted that this factor
would be relevant to the "S&S" determination (C.D. at page 5 and
n. 6} •

,CQ,,._,

The Commission test for "S&S," as set forth in Mathies Coal
supra , is as follows:
In order to establish that a violation of amandatory
safety standard is significant and substantial under
National Gypsum the Secretary Df Laoor must prove: {1)
the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety-~contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a·
reasonable likelihood that the injury in question will
be of a reasonably serious nature.

1466

The Secretary of Labor bears the burden of proving that a
violation is "S&S." The record is silent regarding the affect of
the thermal breaker with regard to the likelihood 9f injury
resulting from the improper setting of the instantaneous or
magnetic feature of the breaker (See, e.g. Tr . 125). Therefore, I
conclude that the Secretary has not established that the
violation was "S&S." I affirm the citation as a non-"S&S"
violation.
I assess

a $300 civil penalty for the violation.

The
gravity of the violation ~s high in that an injury if it occurred
would likely be a serious one, such as burns, electrical shock or
electrocution (Tr. 66). I deem the Commission's findings
regarding what a reasonably prudent person would have recognized
as the equivalent of a finding that Respondent was to some extent
negligent in violating this requirement. Respondent rapidly
abated the violation in good faith by resetting the instantaneous
breaker (Tr . 71).
As to the -other section llO (i) criteria, there is nothing in
the record that indicates that the penalty should be higher or
lower due to Respondent's prior history of MSHA violations
(Exh. P-1). BHP is a relatively large mine operator, employing
400 miners at its Navajo mine where this violation occurred
(Tr. 11 ). The mine produced eight million tons of coal in 1993
(Tr. 6). Assessment of a $300 penalty will not affect
Respondent's ability to stay in business (Tr. 6).
ORDER
Respondent is hereby ordered to pay a $300 civil penalty to
the Secretary of Labor within 30 days of this decision.

Administrative Law Judge

1467

Distribution:
Manuel R. Lopez, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail )
S . J . Berkelmans, Esq., BHP Minerals International, Inc.,
550 California Street, San Francisco, CA 9410 4 (Certified Mail )
dcp

1468

PBDBRAL KINB SAPBTY AND HEALTH RBVIBW COJIKISSION
1244 SPEER BOULEVARD #280
DENVER, 00 80204-3582
303-844-3993/PAX 303-844-5268

AUG 2 31996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

v.
UTAH FUEL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING

.•
..

Docket No. WEST 93-402
A.C. No. 42-01435-03549
Skyline Mine #1

DECISION
Appearances:

Tambra Leonard, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Michael L. Larsen, Esq., Elisabeth R. Blattner,
Esq., Salt Lake City, Utah,
for Respondent.

Before:

Judge Cetti

This case is before me upon a petition for · assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. Set sea. the "Act". The
Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA}, charges Utah Fuel Company (Utah Fuel)
with the violation of three mandatory safety standards. Utah
Fuel is the operator of the underground coal mine, Skyline No. 1
located in Carbon County,· Utah. MSHA issued the citations after
its investigation of a fatal rib and ·roof fall accident.. Utah
Fuel timely contested each of the three alleged violations.

TBB ACCIDENT
Tom 'Kubota, whi·le working with a crew, rehabilitating a
previously caved area in the undergrouna coal mine sustained
fatal injuries in a fall of rib and roof rock accident. The ·
accident occurred in a previously caved area -in the No. 3 entry
of the 6 Left Tailgate Developmental section between crosscuts
Nos. 71 and 72 of the Skyline Mine No. 1. At the time of the
accident the decedent was kneeling on the head of a continuous

1469

mining machine, trimming (cutting to fit with a torch) a steel
crossbar in preparation to installing the crossbar as a part of
the rehabi litation of the previously caved area . The size of the
rock that fell was approximately 6 feet long by 5 feet wide by 2
feet thick.
II
v

ISSUES

After due notice, a four-day hearing on the merits was held
in Salt Lake City. At th~ hearing the parties presented oral and
documentary evidence, including a total of 131 e xhibits. The
parties filed post-trial briefs which I have considered in reaching this decision .
The issues at the hearing were as follows:
1.

Citation No. 3850249
(a) Did Utah Fuel violate C.F.R. S 75.202(a)?

(b) If the standard was violated: (1) Was it a significant and substantial violation? (2) What is the appropriate
penalty?
2.

Citation No. 3412737
(a) Did Utah Fuel violate 30 C. F.R . S 75.2ll(b)?

(b) If this standard was violated: (1) Was the violation of a significant and substantial nature? (2) Was the violation a result of the operator's unwarrantable failure to comply
with the safety standard? (3) What is the appropriate penalty?
3.

Citation No. 3412738
(a) Did Utah Fuel violate 30 C. F. R.

s 75.223(a)?

(b) If the standard was violated. (1) Was the violation of a significant and substantial nature? (2) What is the
appropriate penalty?
III

STIPULATED PACTS A1!D STATJOQllT OF IQTTIRS NOT IN DIS~QTE

A. Utah Fuel is engaged in mining and selling of coal in
the United States and its mining operations affect inter-state
commerce.

1470

B. Utah Fuel Company is the owner and operator of Skyline
Mine No. 1, MSHA I.D. No. 4201435.

c. Utah Fuel Company is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. SS 801 et
~("the Act").
D.
matter.

The Administrative Law Judge has jurisdiction in this

E. The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
respondent on the dates and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not fo~ the truthfulness or relevancy of any
statements asserted therein.
F. The exhibits offered by Respondent and the Secretary are
stipulated to be authentic.
G. The proposed penalties will not affect Respondent's
ability to continue in business.
H. The operator demonstrated good faith in abating the
violations.
I. At the time of the roof fall on February 11, 1992, Utah
Fuel Company was operating under its Roof Control Plan approved
by MSHA on November 27, 1991.
J. Utah Fuel complied with 30 C.F.R. S 50.20-5(a) in
reporting the three prior roof falls and one prior lost time
accident referenced in Citation No. 3412738 .
K. The certified copies of the MSHA Assessed Violations
History (Ex. P-10) accurately reflects the history of this mine
for the two years prior to the date of the citations.
L . Utah Fuel is not contesting the Imminent Danger Order
No. 3850248 issued in conjunction with Citation No. 3850249 to
the extent that the imminent danger order relates to the condition which existed after the roof-fall accident. (Tr. 17-18).
IV
THE MINE - UNDISPUTED FACTUAL INPORMATIOB

The Skyline Mine No. l is an underground coal mine located
at Scofield, carbon County, Utah. The mine portals were developed in August 1982. The mine was then idled until January 1988,
when full production was started. At the time of the accident,

1471

the mine operated one retreating longwall and three continuous
mining machine sections in the Upper O'Conner coal seam. Numerous faults and dikes are associated with this coal .seam. The
coalbed dips five degrees to the southwest and is accessed by
four entries located near the main surface facilities. It also
has three return air portals. The mine produced 3,594,110 tons
of steam coal in 1991. The coal is taken to the surface by
conveyer belts and then transported by truck and railroad to
various customers.
Panel entries are developed in sets of three, off the Main
West entries. These entries were driven about 18 to· 20 feet wide
on varying center dimensions with connecting crosscuts for an
average distance of approximately 7,000 to 9,000 feet . The entries were developed with continuous mining machines for the
purpose of installing retreat longwalls. At the time of the
accident, four longwall panels had been successfully extracted.
A total of 119 miners are employed. They work underground
on three rotating shifts per day, five days a week. The mine
produces an average of 9,822 tons per day.
·
The approved roof control plan for Skyline Mine No. 1 at the
time of the accident was a full roof-bolting plan with the minimum length of bolts being 48 inches, installed on 5- foot centers.
When adverse roof was encountered, 10-foot point anchor bolts
were used. Roof trusses, wood, or steel square sets could be installed or a number of supplementary support materials could be
used as needed, depending on the mining conditions.
Ventilation of the mine was accomplished by a 16-blade propeller type fan properly installed on the surface. The fan is
equipped with a 300 HP motor with all necessary safety devices
and operates continuously . The fan induces a blowing system of
ventilation with a positive pressure of 3.4 inches of water gauge
at about 409,150 C. F. M. The mine does not liberate methane gas.
The day before the accident, the last regular MSHA safety
and health inspection was completed.

v
After the fatal rock fall accident, MSHA's inspectors ·
Richard Bury and Bruce Andrews went to the mine and investigated
the accident. Their Accident Investigation Report received in
evidence as Government Exhibit 4 concisely states many of the
undisputed facts which were affirmed by testimony of witness at
the hearing. Prior to the accident, work was in progress to
rehabilitate the previously caved domed-out area in the No • . 3
entry return of the 6 Left Tailgate Development section between
crosscuts No . 71 and 72.

1472

At approximately 8 a.m. (about 3 1/2 hours before the accident), the section foreman, Zabriskie, held a meeting with the
rehabilitation crew on the surface of the mine. At this meeting
the crew was instructed on how rehabilitation work of the
previously caved area in the No. 3 entry between crosscut Nos. 71
and 72 was to take place.
The rehabilitation plan called for the installation of steel
crossbars beginning under supported roof on both the inby and
outby ends of the faulted area and work towards each other until
the last span, a distance of approximately 20 feet which was
unsupported, could be supported by laying galvanized metal beams,
skin to skin, across the last set of steel crossbars.
After the instructions, given at the meeting at the surface,
the rehabilitation crew proceeded underground to the section
where they were met by Gary Long, fireboss/leadman (who had
already been given this instruction), and Kurt Clawson, continuous mining machine operator. After viewing the work site and
observing no hazardous conditions, the crew then began doing the
necessary preparatory work prior to the installation of the steel
sets. This work consisted of cleaning with the continuous mining
machine from the inby end. Two and one-half ram cars of rock
were removed from the area where the outby sets were to be
installed. Because of the span of unsupported roof, this was
done with the continuous mining machine being operated remotely.
After the cleanup was completed, measurements were taken and the
first sets of crossbars to be installed on the outby end were cut
to length.
Zabriskie, the section foreman, and Long, the leadman, decided that the safest way to move the sets to where they were
n~eded would be to load them on the head of the continuous mining
machine and remotely tram them to the work area. After shutting
off the breaker to the cutter head, the machine was trammed remotely through the unsupported top to the outby work area. With
the head of the continuous mining machine positioned under supported roof, the support leg on the east side of the entry was
positioned. Long and Tom Kubota, standing on the head of the
machine, remeasured for the crossbar and found that an additional
piece of the crossbar needed to be cut off before the bar would
fit. Kubota, while standing on the ground in front of the· machine, cut the first bar to the proper length. He then climbed
onto the ~ead of the continuous mining machine, and in a kneeling
position with his back to the west rib, began to cut the ·second
crossbar. With little or no warning, the west rib and associated
roof rock collapsed, striking and completely covering Kubota.
Due to the very unstable ground conditions that were present
immediately after the fall, Long instructed the continuous mining
machine operator, to remotely tram the machine back to the inby
end of the area, where the roof was supported prior to the rock

1473

being removed from Kubota. This was done for the safety of the
miners engaged in the rescue effort. Kubota was taken to the
Castleview Hospital in Price, Utah, where he succumbed to his
injuries.
The previously caved area that the tailgate development
section crew (including Kubota) were rehabilitating was a caved
domed out area, approximately 18 feet wide and 20 feet high.
Whereas the coal seam mining height was only about 9 feet high.
There was an area of unsupported roof and rib in the caved out
domed area. Wooden cribs, constructed in a single and triple
configuration, were installed on each side of the No. 3 entry,
ending approximately 7 feet outby the outby brow of the cave.
The outby edge of the brow was supported with 6-foot resin
grouted roof bolts. One crossbar leg, an 8-inch "I" beam, had
been installed on the east rib.
In an effort to reduce air slacking and the spilling of rock
throughout the 18-foot wide, 20 foot-high caved area, 30 yards of
shotcrete had been applied to the roof of the caved area a few
days before the accident. The shotcrete was applied to the caved
area roof and rips by miners working under the roof that was
supported and stable.
VI
Citation N~. 3850249

This citation alleges a violation of 30 C.F.R. S 75.202(a)
which requires the following:
(a) The roof, face and ribs of areas where
persons work or travel shall be supported or
otherwise controlled to protect persons from
hazards related to falls of the roof, face or
ribs and coal or rock bursts.
Subsection (b) of the above quoted section provides:
(b) No person shall work or travel under
unsupported roof unless in accordance with
this subpart.
MSHA did not cite or charge Respondent with a violation of
subsection (b) and the evidence presented at the hearing satisfactorily established that no person worked or traveled under
unsupported roof.
The citation charges Respondent with a violation of subsection (a) of S 75.202 as follows:

1474

Hazardous roof and rib conditions were
present in the #3 entry, between crosscuts
No . 71 and 72, in the 6 Left Tailgate Development section. The rock through this area
consisted of unconsolidated sand and slit
(sic) stones and had fallen out to a height
of approximately 20 feet, resulting in very
high ribs of questionable stability. In
addition, an area of roof approximately 20
feet in lenqth had been left unsupported.
Shotcrete from a remote location had been
applied to the roof and ribs making it very
difficult to observe any hazardous condition
and virtually impossible to determine where
the last row of permanent supports had been
installed. A fall of rib and roof rock in
this area resulted in fatal injuries to one
(1) employee.
There is no dispute that these hazardous roof and rib
conditions were present in the #3 entry, between crosscuts Nos.
71 and 72, in \the 6 Left Tailgate Development section and that
rock through this area consisted of unconsolidated sand and silt
stones and had fallen out to a height of approximately 20 feet
and thus carving out a 20-foot high dome in the caved area.
It was this hazardous roof condition described in the citation that Respondent's rehabilitation team, including Kubota, was
in the process of rehabilitating so as to make the area safe for
the miners. The roof of the caved area had been supported with
roof bolts and mesh wherever conditions allowed. Due to the
height of the cave, the angle of the dome and the ·fractured and
laminated conditions approximately 15 to 18 feet of roof could
not be bolted. Consequently, the entire area was dangered-off
from both ends (inby and outby) of the cave. Pursuant · to its
rehabilitation plan, shotcrete was applied over the roof and surface of the cave. Next, multiple steel sets were to be built and
placed at both ends Of the cave, proceeding inward into the cave
to the last row of roof bolts on each side. Each steel ·set would
be wedged to the roof as it was placed . Steel I-beams then would
be placed skin- to-skin from the steel sets i'nby to the steel sets
outby to span the unbolted area. Roof jacks would be placed on
top of the I-beams to provide support .from the structure to the
roof, and cribs would be placed below the I-be~ms to provide
support from the floor to the structure. The structure would
then be lagged to form a tunriel ~ bulklieaded at both ends, and the
cavern above pumped full o·f aqualite
(a· lightweight ·c oncrete).
. ..
:

Respondent presented evidence that the miners in the rehabilitation team were trained in the reha:Oilitation plan· and knew
where supported roof ended. ··only those miners on· the rehabilitation team were allowed inside the dangered-off area.

1475

To establish a violation of 202(a) , the preponderance of the
evidence must be established that the area in question was (1) an
area "where persons work or travel" and (2) an area that was not
"supported or otherwise controlled to protect persons." The
preponderance of the evidence does not establish either of these
elements.
The domed-out cave area in question was not an area "where
people work or travel" within the meaning of section 202(a). In
cyprus Empire Corporation, 12 FMSHRC 911 (May 1990) that Commission determined that areas where persons work or travel do not
include areas which are dangered-off and in which the only work
being performed is rehabilitation work. Whether a person worked
or traveled or was required to enter the area was viewed in light
of "normal circumstances." The fact that miners entered the
dangered-off area to install needed roof support did not make the
dangered-off area one "where persons worked or travel" within the
meaning of subsection 212(a) . The Commission in reversing the
Administrative Law Judge ' s decision to the contrary stated:
cyprus arques that the judge ~rred in conthat it violated Section 75 . 202(a)
for two reasons: (1) under the cited standard the area at issue was not an area "where
persons work or travel;" and (2) "dangeringoff" the area is an acceptable form of "control" of the roof. Because we find the first
issue dispositive, we need not reach the
second .
clud i~g

To establish a violation of 30 C.F.R.
S 75.202(a), the Secretary was required by the
terms of the standard to prove that the cited
area was an area "where persons work or travel." As discussed above, the judge found
that "under normal circumstances, the tailgate end of the long wall would allow a miner
to come directly off the long wall into the
return entry . " 11 FMSHRC 3376 (emphasis
added). What the judge did not consider,
however, is whether "normal circumstances"
are presented here .
The record in this case establishes that as
soon as Cyprus encountered the poor roof conditions, it dangered off the area to prevent
miners from entering the area of adverse roof
conditions. In doing so, Cyprus acted in
accordance with accepted safe-mining practice. There is no evidence that at any time
during the e xistence of the dangerous roof
conditions, other than during the attempt to

1476

install additional roof support, any miner
worked or traveled in the cited area . • • •
Thus, the record established that the operator acted appropriately in dangering off the
area of bad roof and that no miners worked,
traveled or were required to enter the area
at issue.
In the instant case, large, readily visible danger signs had
been properly placed on both the inby and outby ends of the cave
area prohibiting travel. No persons were allowed to work or
travel in this properly dangered-off area. The only exception
was the recognized permissible exception of those members of the
rehabilitation crew who were doing the rehabilitation work under
supported roof. Dangering-off a hazardous area, as was done
here, is a recognized means to control so as to protect persons
from hazards related to falls of the roof and ribs.
A preponderance of the evidence presented fails to establish
a violation of the cited standard, subsection (a) of section
75.202 .
VII

Citation No. 3412737
Citation 3412737 alleges a violation of 30 C.F.R. § 75.~11
subsection (b) S 75.211 in pertinent part subsection (a) and (b)
mandates the following:
(a) A visual examination of the roof, face
and r i bs shall be made immediately before any
work is started in an area and thereafter as
conditions warrant.
(b} Where the mining height permits and the
visual examination does not disclose a hazardous condition, sound and vibration roof
tests, or other equivalent tests, shall be
made where supports . ··are .to be installed •
There is no disput~ that Respondent fully c~mplied with the
requirement of subsection (a). A visual examination of the roof
and ribs was made by exper~enced miners immediately before any
rehabilitation work started in the area'. This examination did
not disclose a hazardous condition.
Respondents are charged with a . v·i olation of sub~ection (b)
of section 7 5.211. That subsection requires "sound. and vibration
roof tests" or other equivalent tests· "where mining height
permits . " It does not specify what tool to use, what . length the
tool must be, or set a height limit for testing . It is clear,

1477

however, as discussed below in more detail, that in order to
perform a sound and vibration test the height cannot exceed the
ability of the tester to place the fingers of the .free hand
against the roof.
I credit the testimony of Gary Long and I find that Long
made a proper sound and vibration test in the area in question
"where mining heights permits." ,.
A sound and vibration test requires the miner to hold the
tool in one hand, place the fingers of the other hand against the
roof, thump the roof with the tool, listen for the sound, and
feel for vibrations . ~ Long, T.433 : 20; accord Davidson ,
T.338:13-20. See also Respondent Ex . 61, pg. 71. Consequently,
mining heights do not permit a sound and vibration test where the
roof is higher than the tester's extended arm and hand can reach
the roof. Mr. Long testified that he is 6'2" tall, that he
tapped "down · low to begin with, and when the miner got into the
area where I could get on it, I got on the head and tapped up
higher, as high as I could reach."
Mr. Ralston tapped the roof with the tapping head of a 12"
long tool, a R'astall. He had years of experience testing roofs
and ribs with this acceptable tool. No evidence was presented
that simply sounding the roof without checking it for vibration
was in fact equivalent to the "sound and vibration" test.

The preponderance of the evidence presented fails to establish a violation of the cited safety standard subsection (b) of
section 75.211.
VIII
Citation No. 3412738

This citation alleges a violation of C.F . R. S 75.223(a).
This safety standard provides as follows :
(a) Revisions of the roof control plan
shall be proposed by the operator( 1) When conditions indicate that the plan
is not suitable for controlling the roof,
face, ribs, or coal or rock bursts; or
(2) When accident and injury experience at
the mine indicates the plan is inadequate .
The accident and injury experience at each
mine shall be reviewed at least every . six
months .

1478

The citation issued by MSHA to the Operator reads as
follows:
The Skyline Mine No. l has had 3 unintentional roof falls in the last 4 months the dates
of falls are 10/22/91, 10/28/91 and 11/12/91,
this mine has also had a lost time accident
on 12/30/91 due to a rib roll. The operator
has not revised or requested a revision of
the Roof control Plan as required by the Code
of Fedralations [sic] 30 CFR 75.223(a) which
requires this operator to submit this to an
authorized representive [sic] of the Secretary. This falls and accidents were prior to
the fatal fall of roof which resulted in
fatal injuries to one person on 2/11/92.
Thus, MSHA's citation points to the three unintentional roof
falls and one lost time accident in the four months before the
fall that struck Kubota and asserts that Utah Fuel "has not
revised or requested a revision of the roof control plan as
required by 30 C~F.R. § 75.223(a).
The evidence at the hearing established that the four prior
incidents required only one revision tQ Utah Fuel's roof control
plan before the roof fall of February 11, 1992, and that the
required revision was incorporated into Utah Fuel's roof control
plan approved by MSHA on November 27, 1991, approximately 2 1/2
months before the February 11, 1992, accident. The evidence
establishes that three falls and one lost time accident occurred;
that Utah Fuel determined the causes of the roof falls and that
Utah Fuel determined the only revision needed to be made to the
roof plan at that time, was incorporated in its roof control plan
by MSHA's approval of the revised plan on the 27th day of November 1992, 2 1/2 months before the February 11, 1992 L acci=d=e=n
~
t-~·~~~IX

Before the hearing, Utah Fuel submitted a prehearing memorandum of points and authorities. During the hearing, the parties presented the testimony of 14 witnesses and 139 exhibits.
The parties stipulated to a number of material facts. Following
the hearing, both parties submitted post-hearing memoranda. Utah
Fuel submitted proposed findings of fact and conclusions of law;
MSHA did not.
Having heard, considered, and evaluated the testimony of all
witnesses, the exhibits, the stipulations by the parties, and the
arguments of the parties at trial and in their pre- and posthearing memoranda, I enter the following findings of fact and
conclusions of law based upon the evidence presented and the
reasonable inferences to be drawn from the evidence presented.

1479

x
FINDINGS or FACT

1. Uta.h Fuel is enqaqed in the mininq and sellinq of coal
in the United states and its mininq operations affect interstate
commerce.
2 . Utah Fuel is the owner and operator of Skyline Mine No.
1, MSHA I.D. No. 42-01435.
3. Utah Fuel is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. S 801.
4.
matter.

The Administrative Law Judqe has jurisdiction in this

5. The subject citations were properly served by a duly
authorized representative of the Secretary upon Utah Fuel on the
dates and places stated therein .
6. Utah Fuel demonstrated qood faith in timely abatinq the
citations.
7. on February 11, 1992, a fall of roof and rib rock
occurred in Skyline Mine No. 1, 6 Left Tailqate Section, No. 3
Entry, between crosscuts 71 and 72, which rock fall caused fatal
injuries to Tom Kubota, a Utah Fuel employee.

a. Mr. Kubota's death is the only fatality ever to occur at
the Skyline Mines.
9. At the time of the rock fall, Utah Fuel was operatinq
under its revised roof control plan approved by MSHA approximately 2 1/2 months before the accident.
10. Utah Fuel complied with 30 c.F.R . S 50.20-5 in reporting
the three prior roof falls and one prior lost time accident
referenced in Citation No. 3412738 .
11. At the time in question, Utah Fuel produced more than
five million but less than ten million tons of coal annual·~y.
12 . At the time of the rock fall, Mr. Kubota was involved in
work to rehabilitate a caved area.
13. The cave formed in the No. 3 entry as Utah Fuel attempted to mine through a faulted section . As Utah Fuel proqressed
down the entry, it encountered bad roof, and significant cavinq.
14. Utah Fuel's previous experience with faults indicated
that driving the No. 1 and No. 2 entries inby the problem area in

1480

the No. 3 entry and then mining from the inby side out ("backmining") would have a positive effect on the mining conditions and
Utah Fuel's ability to mine through the fault.
15. Utah Fuel decided to backmine and proceeded to do so,
installing a variety of primary and supplemental roof supports,
and placing a readily visible danger sign and restrictive ribbon
across the No. 3 entry.
·
16. As Utah Fuel backmined and encountered the fault from
the inby end of the No. 3 entry, roof conditions deteriorated.
Utah Fuel shortened its cuts with the continuous miner to five
feet in length but caving still occurred, which resulted in
bolting problems.
17. The caving required the roof bolters to operate the
bolting machine on a ramp in order to reach the roof. The
resultant angle of the machine tipped the TRS (temporary
supports) on the machine back, making it unsafe to proceed.
18. To avoid exposing the roof bolters to these hazards,
Utah Fuel decided to cut through the coal block that remained in
one pass with the continuous miner (the "punch through") and then
rehabilitate the resulting cave in a way that would not expose
people to hazards.
19. Utah Fuel allowed the cave to "dome out" before beginning rehabilitation work because Utah Fuel's past experience
indicated that allowing a cave to "dome out" increased its
stability. Utah Fuel allowed the cave to set before applying
shotcrete.
20. conflicting evidence was introduced at the evidentiary
hearing concerning whether or not allowing a cave to dome out
leads to a state of equilibrium, and whether the caved area at
issue was in a state of equilibrium during the rehabilitation
work. Dr. Ben Seegmiller, an expert on work mechanics and roof
control systems with bachelor's degrees with honors in geological
engineering and mining engineering, a master's degree in mining
engineering with a specific emphasis on rock mechanics, and a
doctorate degree in mining engineering based on the study and
evaluation of acoustic energy into rock, gave his expert opinions
that allowing a cave to "dome out" would result in equilibrium,
and that the cave at issue reached equilibrium before rehab.i litation efforts began and remained in equilibrium until the roof
falls that fatally injured Mr. Kubota.
21. MSHA did not seek to have Mr. Ponceroff qualified as an
expert. Mr. Hansen's opinion was offered by MSHA as an expert
opinion. Dr. Seegmiller's opinions were creqible and persuasive.

1481

22. Before the rehabilitation work began, Utah Fuel applied
shotcrete containing fiberglass to the roof and ribs of the cave
to stop the raining of rocks caused by air slacking and spalling ~
23. MSHA recognized the utility of shotcrete as a sealant
and its application of shotcrete to the cave was reasonable.
24. Utah Fuel developed a rehabilitation plan for the cave
which called for the placement of steel sets under supported roof
on both the inby and outby sides of the cave. As each set was
placed , it would be supported to the roof before the next set was
placed. The sets would then be spanned with 22-foot long steel
Kennedy beams. The area above the beams to the roof and the area
under the beams to the floor would be supported with jacks and
cribs. Lagging then would be applied to the sides of the tunnel,
the cave edges above and around the tunnel would be sealed off,
and the cavity around the tunnel would be filled with a
lightweight concrete.
25 . The rehabilitation plan did not call for anyone to work
beyond the last r?w of roof bolts at any time and no one did so .
26. Utah Fuei. developed the rehabilitation plan, reviewed it
at the highest levels of mine management, and modified it before
rehabilitation work was begun.
27. Utah Fuel selected David Zabriskie's crew to do the
rehabilitation work because that crew had the most experience in
rehabilitation.
28. At the time of the accident, Foreman Zabriskie had
14.5 years mining experience, and Gary Long, Zabriskie's fire
boss, had 20 years mining experience, the last 10 of which
involved rehabilitation work.
29. At the time of the accident, Karl Clawson and Tom
Kubota, members of Zabriskie's crew, had prior experience
rehabilitating caves with steel sets .
30. Foreman Zabriskie and Fireboss Long, who were leading
the rehabilitation effort, were known to be safety-conscious
individuals who emphasized safety with the~r crew .
31. Crew members knew they were expected to communicate any
safety hazards or concerns they had to Long or Zabriskie, and
that those concerns would be acted upon.
32. On the morning of the accident, readily visible danger
signs prohibiting normal work or travel were present on both the
inby and outby side of the cave area.

1482

33. The danger siqns complied with the requirements of 30
C.F.R. S 75.212 for rehabilitation work.
34. Only those persons designated to rectify the hazard and
trained on the rehabilitation plan were allowed beyond the danger
signs.
35. During rehabilitation work, Karl Clawson was placed on
lookout on the inby side of the cave to prevent entry into the
area by unauthorized persons and to warn the other crewmen of any
change in conditions.
36. Everyone involved in the rehabilitation effort was
trained on the rehabilitation plan before they arrived at the
rehabilitation work site.
37. Utah Fuel employees involved in the formulation and the
execution of the rehabilitation plan felt the plan was safe. No
one voiced any concern about the safety of the plan.
38. No one who was not involved in the rehabilitation effort
proceeded past the danger signs posted inby and outby the cave
area.
39. On the outby side of the cave, in the area where the
rehabilitation work was being done, there was a roof mat with
four roof bolts present on the brow of the cave. See, Ex. R-45.
40. Inby of the roof mat, there was another row of roof
bolts, constituting the last row of bolts proceeding inby from
the outby side of the cave.
41. The last row of bolts consisted of five bolts, located
in an approximate line with the hanging bolt depicted on Ex. R-45
and in photograph Ex. R-54.
42. The last row of bolts was covered with shotcrete, but
the crew was able to and did discern the location of the bolts by
their visible outlines under the shotcrete.
43. Gary Long made sure the crew knew where the ·last row of
bolts was by pointing it out to them.
44. The testimony of every eyewitness to the accident was
that the last row of bolts was inby the brow and inby the row of
roof bolts with the mat at the brow.
45. Three used . roof bolts were found in the material
resulting from the fall, one of which was found on top of Kubota
and the others in gob and material that fell from the roof.

1483

46. There was no "lip" present on the floor of the cave
which prevented the head of the continuous miner from moving into
position under supported roof .
47. The head of the continuous miner was positioned under
supported roof at the time of the rock fall.
48. Based on the uncontroverted testimony of every eyewitness to the accident, I find that at the t i me of the rock fall,
Kubota was located under permanently supported roof. Kubota was
up on the head of the continuous miner located between the row of
bolts securing the last roof mat at the brow and the row of bolts
further into the caved out area.
49. There was n~ indication that the support under which
Mr. Kubota was working was failing until an instant before the
roof fell when two small pieces of material dropped on
Mr. Kubota's hardhat .
50 . The crew recognized and immediately acted upon that
warning--Mr . Clawson called out to Mr . Kubota, Mr. Kubota looked
up--but there wa,s not enough time for Mr . Kubota to make it to
safety.
51. At least three roof bolts in the last row of bolts were
pulled out of the roof by the rock fall that struck Kubota and
one of the bolts lay on top of Kubota after the rock fall.
Sound and Vibration Test
52 . Visual inspections of the work area done by Gary Long
and others were properly performed as required by subsection (a)
of section 202 .
53 . Before the work began , Gary Long did sound and vibration
tests on the roof and ribs in the area where the work was to be
done, with the excepti on of the roof inby the brow, which Long
could not reach because of the height of the roof in the caved
area.
54. Mr . Long conducted the sound and vibration tests using a
12" Rastall 512/H Miners Wrench, a combination tool desigl)ed as a
hammer, box-end wrench and adjustable-end wrench. The handle of
the wrench has a hammer end . The hammer end has a solid, flat
surface area of approximately one inch by 1/2 inch. The Rastall
tool is similar in size and weight to a geologist's hammer .
55. Standing on the ground and then up on the head of the
continuous miner, .Mr. Long held the Rastall by the handle in one
hand , and used the hammer end of the Rastall to · thump the roof,
feeling for vibration in the free hand and listening for the
sound being made.

1484

56. Mr. Long did the tests as high as he could reach with
both hands from a position on the ground and then from a position
on the head of the continuous miner. He did not perform sound ·
and vibration tests on the roof inby the brow because, even
standing on the head of the continuous miner, it was too high to
perform a sound and vibration test.
57. Mr. Long had tested roofs with a Rastall or similar
device for at least four years before the Kubota accident,
performing thousands of tests in that timeframe, and was very
familiar and comfortable with the Rastall.
58. The sound and vibration tester's experience in conducting sound and vibration tests is one of the most important, if
not perhaps the most important, factor when conducting a sound
and vibration test.
59. When shaken, the Rastall can make a clicking or rattling
sound if the jaw is loose, which sound disappears when the jaw is
tightened.
60. When used to thump the roof three or four consecutive
times, the Rastall omits no rattling sound. After continued
thumping, the Rastall's jaw can loosen slightly and omit a slight
metallic rattling sound. Minimal effort is necessary to quickly
thumb-tighten the jaws before continuing with the test.
61. The metallic sound caused by the Rastall is a totally
different sound than the sound the tester is listening for in the
roof, and definitely distinguishable. The metallic sound did not
interfere with Long's performance of the sound and vibration
test.
62. The type of tool to be used for sound and vibration
tests is not specified in the Mine Safety and Health Act, 30
u.s.c. s 801 et ~; Code of Federal Regulations, 30 C.F.R.
s 75.200 et~
· 63. The MSHA Roof and Rib Control Manual NMSHA-CE-003
likewise does not specify the tool to be used, stating -merely
that the test should be done with a "solid object."
64. MSHA District Manager William Holgate stated in a letter
to Utah Fuel that a Rastall could be an appropriate tool; for
conducting sound and vibration tests. See Ex. R-67.
Roof Control Plan
65. On October 21, 1991, Utah Fuel experienced a reportable
roof fall in Skyline Mine No. 1, in the 6 Left Tailgate section,
No. l Entry, at crosscut 64. See Ex. P-19. The failure was

1485

related to high horizontal stresses in the roof.
injured in the fall.

No one was

66. At the time of the fall, Utah Fuel was engaged in an
extensive study of different types of longer torque-tension bolts
to help address horizontal movement problems, and already had
forms of support in its roof contl.'01 plan to adequately control
the roof once it failed.
67. Utah Fuel's tensionable bolt study was scheduled to be
completed in Spring 1992 . MSHA was aware of Utah Fuel's bolt
study and its estimated completion date and agreed with Utah Fuel
that a plan amendment concerning longer torque-tension bolts was
not necessary until the study was finished.
68. On October 27, 1991, Utah Fuel experienced a reportable
roof fall in Skyline Mine No. 1, in the 6 Left Tailgate Section,
at crosscut 4. The fall was caused by a wet roof condition. No
one was injured in the fall.
69 . The fall indicated that a revision to Utah Fuel~s plan
was needed. U~ah Fuel, in conjunction with MSHA, determined that
providing drain holes in intersections would alleviate some of
the wet roof problems. Utah Fuel submitted a drain hole revision
to the roof control plan to address the wet roof situation. That
amendment was approved by MSHA as part of the November 27, 1991,
MSHA approved roof control plan.
70. During MSHA's investigation of each of the October
falls, MSHA's inspector Hanna may have had some discussion about
the use of six-foot torque tension bolts to prevent such falls.
However, following the October 1991 roof falls, Mr. Bunnell and
MSHA's Denver roof-control specialist, Mike Stanton, discussed
Utah Fuel's ongoing torque-tension bolt study. Mr. Stanton
agreed that Utah Fuel should continue the study, and was not
concerned that the study would not finish until Spring 1992.
Mr. Stanton told Mr. Bunnell it was not necessary to amend the
plan to a six-foot bolt at that time, and Bunnell understood that
no plan amendment was required with respect to roof bolts until
the bolt evaluation process was finished.
71. On November 10, 1991, Utah Fuel experienced a reportable
roof fall in Skyline Mine No. 1, in the 6 Left Tailgate Section,
No. l entry, at crosscuts 67-68 . The fall occurred in a dike
section of ·the entry, and the failure was due to an undetected
fault within the dike. No one was injured in the fall.
72. Utah Fuel rehabilitated the cave resulting from the
November 10, 1991, falls with steel sets, a supplemental support
provided for in Utah Fuel's roof control plan.

1486

73. The November falls did not indicate that a revision to
Utah Fuel's plan was needed.
74. In December 1991, Utah Fuel experienced a lost time
accident, which occurred when two miners were installing
supplemental roof bolts with a Cobra hand drill. The drill
vibrated and a loose slab of rock fell from the roof, striking
the miner on the foot. The incident did not indicate that an
amendment to the roof control plan was needed.
75. MSHA approved Utah Fuel's roof control plan on November 27, 1991, with knowledge of, and after having investigated,
the three prior roof falls. ·
76 . From December 30, 1991, through January 21, 1992, MSHA
inspector Hanna, a roof-control specialist, conducted a section
75.223(d) six-month review and evaluation of the roof-control
plan, which review took into account all prior roof falls and
lost-time accidents.
77. As a result of his inspection, Inspector Hanna found no
MSHA violations ·in the 6 Left Tailgate Section, the same section
where the Kubota · fall occurred two weeks later, and determined
that no revision to the roof control plan was needed.
78 . MSHA did not call as witnesses Mike Stanton, the roof
specialist, nor Inspector Hanna, the only MSHA personnel in
direct contact with Utah Fuel during the roof control review
process. Evidence presented by Utah Fuel on the roof-control plan revision issues is credible and persuasive.
XI
CONCLUSIONS OP LAW

1. Utah Fuel "supported or otherwise controlled" the roof___
and ribs in the area referenced in Citation No. 3850249, ~tah
Fuel did not violate 30 C.F.R. S 75.202(a).
2. By dangering-off the rehabilitation area, Utah Fuel
prevented miners from normal work and travel in that area, and
thereby, otherwise controlled the area as required by 30 c.F.R.
S 75.202(a).
3 . Utah Fuel, through Fireboss Long, conducted visual
inspection and performed sound and vibration tests where mining
height permitted as required by 30 C.F.R. S 75 . 211(b)(2).
4 . The Rastall used by Mr. Long is a solid object and an
adequate tool for conducting sound and vibration tests.

1487

s. The violation of 30 C.F.R. S 75.211(b)(2) as alleged in
Citation No. 3412737 was not established.
6. As a result of the three prior roof falls~ only one
revision to Utah Fuel's roof-control plan was reasonably and
foreseeably necessary before the fatal accident of February 11th.
That revision was approved by MSHA and the roof-control plan as
amended with this revision in accordance with 30 c.F.R. S 75.223
was approved by MSHA on November 27, 1991. The violation of 30
C.F.R. § 75.223(a) as alleged in citation No. 3412738 was not
established.
XII

Without the benefit of hindsight, the preponderance of the
evidence presented failed to establish that the actions taken by
Utah Fuel were not reasonable actions that a "reasonably prudent
person, familiar with the mining industry and protective purpose
of the standard, would have taken and provided in order to meet
the protection intended by each of the three cited safety standards. Reviewed under the "reasonable prudent person standard I
find Utah Fuel acted as a reasonable prudent mine operator in
recognizing and addressing the potential hazards. The actions
taken by Utah Fuel are what a "reasonably prudent person, familiar with the mining industry and protective purpose of the
standard, would have provided in order to meet the protection
intended by the cited standards. See Canon Coal, 9 FMSHRC 667 at
668 (1987) . Each of the citations should be vacated.
ORDER

Citation Nos. 3850249, 3412737 and 3412738 and their corresponding proposed penalties are VACATED and this case is
DISMISSED.

Au st F. Cetti
Administrative Law Judge
Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Michael L. Larsen, Esq., Elisabeth R. Blattner, Esq., PARSONS,
BEHLE & LATIMER, One Utah Center, 201 South Main Street, Suite
1800, P.O. Box 45898, Salt Lake City, UT 84145-0898
{Certified Mail)
/sh

1488

PEDERAL KINE SAPETY AND BEALTB REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SICYL INE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CllUltCH, VIRGINIA 22041

AUG 2 3 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

. CIVIL PENALTY PROCEEDING
Docket No. WEVA 96-13
: r

A.C. No. 46-07465-03505

v.

EXTRA ENERGY, INC.,
Respondent

.

Eckman-Page Strip & Auger

DICISION

Appearances:

Alan G. Paez, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia for
Petitioner;
William c. Miller, II, Esq., Jackson & Kelly,
Charleston, West Virginia for Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c . S 801 et
seq., the MAct," charging Extra Energy, Incorporated (Extra
Energy) with two violations of mandatory standards and proposing
civil penalties of $1,550 for those violations. The general
issue before me is whether Extra Energy committed the violations
as alleged and, if so, what is the appropriate civil penalty to
be assessed considering the criteria under Section llO(i) of the
Act. Additional specific issues are addressed as noted.
Background
Extra Energy operates the subject Eckman-Page Strip and
Auger Mine in McDowell county, West Virginia. It is ·a small
surf ace operation employing an average of three to four
employees. During the period November, 1994 through April, 1995,
the mine routinely operated ten hour shifts, from 7:00 a.m. to
5:00 p.m., Monday through Friday. Independent contractor Neal
and Associates, Inc. (Neal) provided security at the mine from
6:00 p.m. to 6:00 a.m. on the weekend nights of Friday, Saturday,
and Sunday. Melvin Brian Day, Jr., (Brian) was a security guard
employed by Neal in November, 1994 and assigned to provide night
security for the mine.
On Sunday morning, April 9, 1995, around 10:00 a.m., when
Brian did not return home as usual, his father,

1489

Melvin Brian Day, Sr. (Melvin) and his brother, Jeffrey Shawn Day
(Shawn) began looking for Brian. Melvin and Shawn drove to the
mine site looking along the way for Brian's car . Blocked by the ·
locked gate at the entrance to the mine, they parked and walked
onto the property. They found Brian's body in his 1982 Ford
Escort with the engine running, the doors locked, the windows
rolled up, and his citizens band (CB) radio on. His seat was in
a partially reclined position. They gained access to the car by
breaking the sunroof.
They attempted to use Brian's CB to call for help but it was
inoperable. The CB cable nad been severed when they broke into
the car. Sha~n then took the gate key from Brian's key ring,
unlocked the gate and drove to the accident site. Attempts to
use the CB in Melvin's car were also unsuccessful so Melvin and
Shawn conveyed Brian's body to a nearby town and telephoned for
an ambulance . The police were also notified and West Virginia
State Trooper Cochran and McDowell County Deputy Sheriff Mitchell
responded.
After releasing the body to the ambulance crew, Deputy
Mitchell and Trooper Cochran accompanied Melvin and Shawn to the
accident site . Mitchell and Cochran examined the car and let it
run a few minutes . The officers reportedly commented about
smelling fumes and that there was •an exhaust leakage of carbon
monoxide". Shawn was then permitted to remove the vehicle from
the accident site.
James Altizer , Brian Day's supervisor at Neal, received two
telephone calls on April 9, 1995, advising him of Brian's death.
The first call was taken by Altizer•s wife who reported to him
that Brian Day had died in a car accident. A later call informed
Altizer that Brian had died on the job site. Driving to the site
along with another Neal employee, Timothy Stanley, they found the
gate open. They were unable to find anyone on the premises or
locate the precise accident site.
Altizer called Extra Energy Superintendent Steve Haynes at
around 4:00 or 5:00 p . m. on the evening of the accident to inform
him ·of Brian Day's death. Altizer told Haynes that the victim
was found on the job site, that he had died from carbon monoxide
poisoning, and that the accident had been investigated by ·:the
State Police and the Sheriff's Department . ~ccordin9 to Altizer,
Haynes responded that •he would take it from there".
Inspector William Uhl of the Department of Labor's Mine
Safety and Health Administration (MSHA) was directed to
investigate the incident on April 11, 1995. Uhl first contacted
the West Virginia Department of Mines and found that two of their
inspectors had already been at the mine on April 10. In the
course of his investigation Uhl also received a copy of a report

1490

of the incident from the McDowell County Sheriff's Department
(Government Exhibit No . 2) and the coroner's report (Government
Exhibit No. 3). In addition, Uhl inspected the automobile in
which Day died. Twelve photographs of the car were admitted into
evidence (Government Exhibits 4 through 15).
According to Inspector Uhl, when the motor was operated on
this vehicle a separation in the exhaust pipe could be heard as a
•t1uttering" sound. Carbon monoxide tests were performed with a
hand held monitor with the car closed and run for 15 minutes. In
each of two tests, 900 parts per million of carbon monoxide was
detected. Uhl testified that based on a •chart we had" such an
exposure over a three hour period can be fatal. He opined, based
upon hearing the exhaust system, that the system had leaks that
were "obvious". Uhl also concluded that the violation was
serious and "significant and substantial" because exposure to
carbon monoxide can be fatal. He concluded however that Extra
Energy was chargeable with but little negligence based on his
finding that the vehicle was operated by the security contractor
only during non-production hours and was therefore rarely seen by
this production operator.
Uhl also testified that the fatality had not been reported
to MSHA. Uhl spoke to Extra Energy Mine Superintendent Haynes on
April 11. Haynes said that he had been called by the security
company representative, Altizer, who purportedly told him he did
not know whether it occurred on mine property. Haynes maintained
that this was his reason for not contacting MSHA. Uhl also
determined from the records at the Mt. Hope MSHA office that no
report of the incident had been filed. On April 10, MSHA
Supervisor Ratcliff was apparently also told by Haynes that he
(Haynes) could not ascertain whether a fatality had occurred on
mine property. Uhl had understood that Altizer had called Haynes
on April 9 and, in fact told him at that time that there had been
a fatality "on the job".
James Altizer worked for Neal Associates as a field
supervisor in April 1995. He negotiated contracts for Neal and
supervised 20 to 30 security guards at various job sites.
Altizer recalled that Neal and Associates had contracted with
Extra Energy in early 1995 for a security guard. He met with
Extra Energy Mine Superintendent Steve Haynes who told Altizer
that he wanted someone to guard the auger. About a week after
the contract with Haynes was signed, Altizer hired the deceased
and assigned him to the Eckman-Page mine site. Haynes provided
Altizer with a key to the mine property and Altizer gave the key
to the deceased.
Later, David Hale, another representative of Extra Energy,
told Altizer that Day's duties had changed to include some

1491

patrolling. The deceased also later told Altizer that he no
longer was required to patrol the auger site because of the bad
road conditions and he was permitted to locate where he had
better •cs" communications, presumably on mine property between
the two stockpiles. According to Altizer, the vehicles used by
Neal security quards were required to meet state inspection
standards and so long as the vehicle met those standards it was
allowed on mine property.
Steven Haynes was superintendent for Extra Energy on
April 9, 1995, and in November 1994 when they contracted with
Neal and Associates for seeurity guards. He recalled telling
Altizer that they needed someone to patrol everything at the mine
site, including the auger, the two gates and the load-out at the
bottom of the hill. According to Haynes, Altizer checked the
property and later said that the type of vehicle the guard would
be using would prevent him patrolling the auger site . Haynes
recalled that he then told Altizer to have the guard check only
the gates and the load-out using the county roads. Subsequently
Haynes met the deceased twice at the stockpile inside the gate.
According to Haynes, Day told him that Altizer wanted him to be
stationed there. Haynes purportedly told Day that he did not
want him inside the gates. According to Haynes, the second time
he found Day at the stockpile he warned him not to be on mine
property.
Haynes testified that Altizer called him on April 9 around
6:00 p.m . advising him that a security guard had died but he
purportedly was not sure where the guard died. He was further
told that the state police were investigating the incident.
Haynes maintained that he looked for glass on April 10, but found
none and when MSHA Supervisor R~tliff visited around 2:00 p.m. on
April 10, Haynes had no answers for him.
Haynes recalls that around 9:00 a.m. on April 10th he told
an MSHA employee named •Miller" that he could not find any
evidence of the incident on the mine property. Haynes further
maintains that the sheriff would not give him any information
regarding the incident. Haynes maintains that even as of
April 11, when Inspector Uhl visited the job site he still did
not know where the deceased's vehicle was found. Haynes contenqs
that he had no reason to believe it was on mine property.
Haynes admitted that he permitted Day to retain the gate key
to mine property for •emergencies" and that Day also needed the
gate key presumably to enter mine property in order to chase
four-wheelers off the property. Haynes also acknowledged that
the gates were probably on mine property and that it was part of
Day's responsibilities to ensure that the gates were locke4.

1492

Alleged Violations
Citation No . 3964767 alleges a violation of the · standard at
30 C.F.R . S so.10 and charges as follows:
A fatal accident occurred at this mine on
April 9 , 1995. The victim was discovered at 10:30 a.m.
MSHA was not notified by the operator .
The cited standard provides as follows:
If an accident occurs, an operator shall immediately
contact the MSHA district or subdistrict off ice having
jurisdiction over its mine. If an operator cannot contact
the appropriate MSHA district or subdistrict off ice, it
shall immediately contact the MSHA headquarters off ice in
Arlington, Virginia by telephone, at (800) 746-1553.
Citation No. 396476~, as amended, alleges a violation of the
standard at 30 C.F.R . S 77 . 404(a) and charges as follows:
The 1982 Ford Escort (vin) 2FABPU144CX249029 being
operated on this surface mine property was not being
maintained in a safe operating condition. The exhaust
system was leaking carbon monoxide at three locations and
portion of the car body was rusted and deteriated
(sic] allowing high levels of carbon monoxide into the
drivers (sic) compartment. High levels of (CO} was [sic]
detected when funtional [sic] test were [sic) conducted.
This was a contributing factor which resulted in a fatal
injury.
The cited standard, 30 C.F . R. S 77.404(a) provides that
•cm Jobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment
in unsafe condition shall be removed from service immediately ."
Respondent first appears to claim that the deceased,
Brian Day, who was admittedly employed as a security guard by
independent contractor Neal Associates, was not a •mine+" as
defined in the Act but was essentially only an unauthorized
trespasser on its mine property and for whose actions it ..
therefore assumes no responsibility. 1 Respondent claims the
deceased was not a •miner" because •at least during the latter
part of his employment by Neal, [he) was specifically directed to
stay off mine property when performing his duties" as a security
quard on behalf of Respondent .

1

A "miner" is defined in Section 3(g} of the Act as •any
individual working in a coal or other mine".

1493

Regardless of the merits, vel non, of Respondent's
contention that the Secretary must prove in this case that the
deceased was a •miner" under the Act, it is clear from the
credible evidence that the deceased was in fact a •miner• as so
defined and, furthermore, that he was authorized by Respondent
directly and through its contractor, Neal and Associates, to
perform services on Respondent's m~e property as a security
guard. More importantly, the evidence shows that the deceased
· was, during relevant times, working in the subject mine.
In reaching these conclusions I have not disregarded Haynes'
testimony that he had twice directed the deceased to perform his
job as a security guard on the county roads outside the mine
gates and that he told the deceased that he did not want to see
him on mine property. This testimony is, however, contradicted
by Altizer•s testimony, by the contractor's records which
continued to show that the deceased was patrolling on mine
property and the fact that an agent of the Respondent reviewed
these records, and by Haynes own testimony that the deceased
retained an access key for emergency entry onto mine property,
to chase. trespassers and to secure the gates which were
•probably" on mine property. Under the circumstances I accord no
weight to Respondent's contention that the deceased was
essentially only an unauthorized trespasser.
Respondent next argues that the Secretary's decision to
charge it as the production operator in this case was an abuse of
discretion. It is now, of course, well established that, in
cases involving multiple operators, the Secretary may generally
proceed against either an owner or production operator, his
contractor, or both. W-P Coal Company, 16 FMSHRC 1407 (July
1994); Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1360
(September 1991); consolidation coal company, 11 FMSHRC 1439,
1443 (Auqust 1989). In addition, it is established that the
Secretary has wide enforcement discretion. W-P Coal Company at
1411. The Commission has nevertheless recognized that review of
the Secretary's action in citing an operator is appropriate in
order to guard against an abuse of discretion. Id. at 1411. The
difficulty is that there is little guidance as to what
constitutes an abuse of discretion in this regard. The Secretary
has here elected to charge both the independent contractor
security company, Neal and Associates, and the production
operator, Extra Energy, with violations related to the death of
the independent contractor's employee Brian Day.
The Secretary argues that his decision to cite Extra· Energy
as the production operator of the Eckman-Page Mine was based in
part by the fact that it was the statutory •operator• who
controlled and supervised and had the right and ability to
exercise control and supervise the mining operation. The
Secretary also argues that the issuing inspector in this case

1494

followed MSHA's program policy manual guidelines in determining
when to cite production operators. Those guidelines provide as
follows:
(1)

When the production operator has contributed by either
an act or by an omission to the occurrence of a
violation in the course of an independent contractor's
work;

(2)

When the production operator has contributed by either
an act or omission to the continued existence of a
violation committed by an independent contractor;

(3)

When the production operator's miners are exposed
to the ha~ards; or

(4)

When the production operator has control over the
condition that needs abatement . (See Government
Exhibit No. 22) .

The Secretary's *guidelines" one and two are, however,
unworkable and e~sentially meaningless because it can always be
said that a production operator contributed by omission to a
violation committed on its premises by one of its contractors .
Moreover it would be a rare case indeed where it could not be
said that the production operator had some degree of control over
a condition at its mine that needed abatement. The fourth
*guideline" therefore is also essentially without meaning. Thus,
when the Secretary claims that he has followed guidelines one, ·
two and four it is likewise meaningless. These are not true
*guidelines" at all when there are virtually no factual cases
which would fall outside of such •guidelines".
The Secretary has also failed to prove that the third
*guideline", the only truly workable guideline, was met. Since
the deceased was the sole operator of the defective vehicle while
acting as a contract security guard at the mine and since he
worked at night when the Respondent's workers were ordinarily not
present, Respondent's miners were not exposed nor was it likely
that they would have been exposed to the carbon monoxide hazard
in the cited vehicle presented by the violation charged . in
Citation No. 3964768. The Secretary offers no explanation as to
how his third •guideline" applies to Citation No. 3964767. · Under
the circumstances I find that the Secretary has failed to
demonstrate how his third *guideline" has been met on the facts
of this case .
In spite of the noted deficiencies in the Secretary's
•guidelines" I nevertheless find that the Secretary did not abuse
his discretion in proceeding against both the contractor and the
production operator herein. The guidelines are, in any event,

--

-1495

merely expressions of general policy and are not binding
regulations th~t the Secretary is required to observe. Brock v.
Cathedral Bluffs Shale Oil co., 796 F.2d 533, 538-39 (1986).
Moreover Respondent did in fact directly contract wi'th Neal for
security and tightly and continuously controlled access to mine
property with locked gates. The undisputed evidence also clearly
ahows that the subject vehicle had an obviously defective exhaust
system and no current inspection sticker. These factors, while
·•inimal, are sufficient to warrant the Secretary's action in
charging Respondent for its part in the violations herein . It is
noted that the Secretary has recognized Respondent's lesser
responsibility for the violations by his findings of decreased
negligence. ~ further find that with respect to Respondent's
failure as production operator to have reported the fatal
accident at its operation to MSHA under the standard at 30 C.F.R.
S 50 . 10, there is strict liability regardless of whether
Respondent contributed to the accident or had control over the
conditions giving rise to the accident.
Respondent also argues that it did not violate the standard
at 30 C. F . R. S 50 . 10 by failing to notify MSHA of the fatal
accident, as alleged in Citation No. 3964767, because of
Superintendent Haynes' uncertainty that the fatal accident had
occurred on its property . While it is undisputed that before
Haynes even knew of the incident both the subject vehicle and
deceased's body had already been removed from the mine site,
leaving no direct evidence of the accident, I nevertheless find
Altizer's testimony credible that on the same day as the
accident, he told Haynes that Brian Day had died in his car at
the subject mine of carbon monoxide poisoning . In any event
since the fatal accident had occurred at the mine and Respondent
failed to notify MSHA of the accident, Respondent is strictly
liable for the violation. I agree however that ample mitigating
circumstances exist to warrant a finding of low negligence and
low gravity and that, accordingly, the proposed civil penalty of
$50 is appropriate for this violation considering the criteria
under Section llO(i) of the Act.
Neither the existence of the violation charged in Citation
No. 3964768 nor the findings associated therewith are otherwise
challenged by Respondent (See Respondent's Post Hearing
Argument). Based on the record evidence and the Secretary's
undisputed findings, including the Secretary's acknowledgment
that Respondent's negligence was •rather low" (since the victim
worked during non-production hours and was •probably seen very
little by the actual controlling operator") I conclude that a
civil penalty of $500 is appropriate.

1496

ORDER

Citation Nos. 3964767 and 3964768 are affirmed and Extra
Energy, Inc. is hereby directed to pay civil penalties of $50 and
$500, respectively for the violations charged therein within 30
days of the date of this decision .

~ ~

.

I V/1~ I

Gary Melick
Adminiitrative

a.~ Judge

Distribu:tion :
Alan G. Paez, Esq . , Office of the Solicitor, U.S. Dept. of Labor,
4015 Wilson Blvd., Suite 516, Arlington, VA 22203 (Certified
Mail)
William c. Miller, II, Esq., Jackson & Kelly, P . O. Box 553,
Charleston, WV 25322 (Certified Mail)
\jf

1497

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

AUG 2 8 1996'
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 95-214
A.C. No. 15-03178-03789
Mine:

Ohio 11

ISLAND CREEK co~ COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . KENT 95-502
A.C. No. 15-03178-03800 A
Mine:

WILLIAM THOMASON, Employed
by ISLAND CREEK COAL co .
Respondent

Ohio 11

I

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 95-519
A.C . No. 15-03178-03199 A
Mine:

JOHN CAMBRON, Employed by
ISLAND CREEK COAL co.
Respondent
I

1498

Ohio · 11

DECISION

Appearances:

.Anne T. Knauff, Esq., Office of the Solicitor,
U.S . Department of Labor, Nashville, Tennessee,
for Petitioner;
John T. Bonham, II, Esq., David J . Hardy, Esq.,
(on brief), Jackson & Kelly, Charleston, West
Virginia, for Respondent.

Before:

Judge Hodgdon

These consolidated cases are before me on Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor,
acting through his Mine Safety and Health Administration (MSHA),
against Island Creek Coal Company, William Thomason and John
Cambron, pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C . §§ 815 and 820. The
petitions allege that the company violated five of the
Secretary's mandatory heal th and safety standards and that
Thomason and Cambron , as agents of the company, knowingly
authorized, ordered or carried out one of the violations .
For the reasons set forth below, l find that the company d i d
not violate section 50.10, 30 C.F.R. § 50 . 10, and vacate Citation
No. 3859779. In accordance with a negotiated settlement of the
remaining petitions, orders and citations, I dismiss the
pet itions against Thomason and Cambron, vacate and dismiss Order
No . 3859663 , modify Order No. 3859662 to a citation and assess a
penal ty against the company of $352 . 00.
A hearing was held on April 10, 1996, in Henderson,
Kentucky. In addition, the parties filed post-hearing briefs in
these matters.
Settled Matters

At the beginning of the hearing, counsel for the Sec~etary
stated that all but one citation in these cases had been settled .
With regard to Docket Nos. KENT 95-502 and KENT 95-519, the
Secretary moved to dismiss the petitions because the evidence di d
not demonstrate the aggravation necessary to support the cases
against Thomason and Cambron under section llO(c), 30 U.S . C.
§ 820(c ) .
For Docket No. KENT 95-214, the parties agreed that
the Respondent would pay the assessed penalty of $50.00 each for
Citation Nos. 3859614 and 4067100, that Order No. 3859663 would

1499

be vacated for lack of proof and that Order No. 3859662 would be
modified from a section 104(d} (1) order, 30 U. S.C. § 814(d) (1),
to a 104(a) ci~ation, 30 u .s.c. § 814(a ) , by reducing the level
of negligence from "high" to "moderate" and deleting the
•unwarrantable failure" designation and that the penalty would be
reduced from $2,500.00 to $252.00.
After considering the parties' representations, ·1 concluded
-that the settlement was appropriate under the criteria set forth
in section llO (i ) , 30 U. S.C. § 82 0( i ) , and informed the parties
that I would accept the agreement.
(Tr. 5-22.) The prov isions
of the agreement will be carried out in the order at the end of
this decision.
Contested Citation

The Island Creek Ohio No . 11 mine is an underground coal
mine employing 231 miners and produc~ng 8,000 tons of coal daily
from four working sections. During the second shift on April 7,
1994, a continuoui; mining machine cut through a "core drill
hole" 1 while mining a crosscut between the numbers five and six
entries on the 004 section. The core drill hole went through the
No. 11 seam, where the work was being done, down into the No. 9
seam which had been sealed for some time and contained gas under
pressure. As a result, gas from the No. 9 seam flowed into the
No. 11 seam.
Concentrations of between three and three and one half
percent methane were detected in the return adjacent to the
continuous miner. Within two or three minutes, ventilation
curtains were set up and the methane concentration was reduced to
below one percent. The continuous miner was removed from the
crosscut and attempts were made to seal the hole.
;

Around 7 : 00 a . m. on April 8, the local MSHA office · was
notified of the situation as a "courtesy." On receiving the
A •core drill" is " a mechanism designed to rotate and
cause an annular-shaped rock cutting bit to penetrate rock
formations, produce cylindrical cores of the formations
penetrated, and lift such cores to the surface, where they may be
collected and examined." Bureau of Mines, U. S. Department of
Interior, A Dictionary of Mining , Mineral, and Related Terms 266
(1968 ) (DMMRT). Thus, a "core drill hole" is the hole remaining
after the core has been removed.
1

1500

notification, a 103 (k) order, 30 U.S.C. § 813(K), was issued to
preserve the scene and MSHA inspectors traveled to the mine.
After the inspectors reviewed the situation, Citation No.
3859779 was issued, alleging a violation of section 50.10. The
citation stated that "[m]ine management failed to notify MSHA
immediately after the mine experienced a non-injury accident on
April 7, 1994 at 1845 hrs. A core drill hole was cut through on
the 004-0 MMU. MSHA was notified by phone on April 8, 1994 at
0700 hrs."
(Jt. Ex. l. )
The gas leak was finally completely solved when a hole was
drilled to the surface on April 13, venting the pressurized gas
to the surface. Mining operations on the other sections of the
mine were not affected by the gas leak. Consequently, all other
mining operations continued.
Section 50.10 requires that " [i]f an accident occurs, an
operator shall immediately contact the MSHA District or
Subdistrict Office having jurisdiction over its mine." Section
so. 2 (h ) , 30 C. F. R .· § 50. 2 (h ) , sets out 12 types of incidents when
an "accident" is deemed to have occurred. Section 50.2(h) (4 )
states that "[a]n unplanned inundation of a mine by a liquid or
gas" is an accident.
It is undisputed that this incident was not immediately
reported to MSHA. Therefore , if this was an unplanned inundation
of the mine by gas , Island Creek violated the regulation. I
find, however, that what occurred was not an inundation of the
mine. Consequently, it was not a reportable accident under
section 50.10.
If there is any doubt as to whether a regulation provides
"adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the
reasonably prudent person test." BHP Mineral~ International
Inc., No. CENT 92-329 et al, slip op. at 4 (August 19, 19.~6 ) .
That test is •whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of
the standard. Ideal Cement Co., 12 FMSHRC 2409, 2416 (November
1990) ." Id.

1501

The regulation speaks of the inundation of a mine, not a
part, sections, entries or crosscuts of a mine. Thus, on its
face it appears that this type of accident has to be mine wide.
That this is the case, is further indicated by the .use of the
word "inundation."
As the Commission has previously noted, the DMMRT at 587
oef ines "inundation" as an "inrush· of water on a large scale
which floods the entire mine or a large section of the workings."
Aluminum Company of America, 15 FMSHRC 1821, 1825 n.8 (September
1993). Under the regulations, inundation can also be an inrush
of gas. Id.
Clearly, what occurred here was not an inundation. The
gases released did ~ot flood the entire mine or even a large
section of the workings. Three of the four working sections were
unaffected. In fact, only the numbers five and six entries and
the crosscut between them in the 004 section were impacted at all
by the release of gas.
I find that a reasonably prudent person familiar with the
mining industry would not have concluded that this incident was
an accident required to be immediately reported under section
50.10. Therefore, I conclude that the company did not violate
the regulation when this incident was not immediately reported.
ORDER

Docket Nos. KENT 95-502 and KENT 95-519 are DISMISSED . In
Docket No. KENT 95-214, Order No. 3859663 and Citation No.
3859779 are VACATED and DISMISSED, Order No. 3859662 is MODIFIED
by reducing the level of negligence from "high" to "moderate" and
deleting the "unwarrantable failure" designation and is AFFIRMED
AS MODIFIED, and Citation Nos. 38596141and 4067100 are AFFIRMED.
Island Creek Coal Company is ORDERED TO PAY a civil p~nalty of
$352.00 within 30 days of the date of this decision . On receipt
of payment, these proceedings are DISMISSED.

d,o4N-~

T . Todd Ho~~ro·~
Administrative Law Judge

1502

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville,
TN 37215-2862 (Certified Mail)
John T. Bonham, 111, Esq., Jackson & Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)
/lt

1503

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

AUG 3 0 1996

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 94-504-M
A.C. No. 42-01975-05507

v.
Docket No. WEST 94-614-M
A.C. No. 42-01975-05508

LAKEVIEW ROCK PRODUCTS, INC.,
Respondent

Docket No. WEST 95-49-M
A.C. No. 42-01975-05511
Docket No. WEST 96-88-M
A.C. No. 42-01975-05519
Docket No. WEST 96-89-M
A .C. No. 42-01975-0552 0
Docket No. WEST 96-209-M
A.C. No. 42-01975-05523
Mine:

Lakeview Rock Products

DECISION
Appearances:

Ann Noble, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado;
for Petitioner;
Gregory M. Simonsen, Esq., Kirton & McConkie,
Salt Lake City, Utah, for Respondent.

Before:

Judge Amchan

These cases involve three inspections conducted by MSHA at
Respondent's sand and gravel pit in Salt Lake City, Utah. The
first three dockets concern inspections made by Richard Nielsen

1504

in November, 1993, and May, 1994. The last three dockets concern
an inspection made by Ronald Pennington in August 1995. At the
commencement of the hearing Respondent withdrew its contest to 14
penalties proposed by the Secretary. These are recounted in the
transcri~t of this proceeding at pages 21-25.
The citation/
orders and penalties that were litigated are discussed below.
Citation 4120703. November 3. 1993 (Docket No. HEST 94-504-M )
On November 3, 1993, Inspector Nielsen arrived at
Respondent's mi~e accompanied by his supervisor William Tanner.
During the inspection there was a confrontation between Inspector
Tanner and Glenn Hughes, Respondent's President. Respondent also
contends that there were confrontations between Mr. Tanner and
Scott Hughes, the manager of the sand and gravel pit. This is
denied by Mr. Tanner.
Whi~e I need not reconcile the vastly differing accounts of
what transpired , the enmity that resulted has at least some
relevance to what pas transpired between MSHA and Respondent
since that date . Several citations and penalties from that
inspection were litigated in front of me in late 1994 and were
decided on January 30 , 1995, 17 FMSHRC 83.

On November 3 , 1993, Inspector Nielsen asked Scott Hughes on
several occasions to s how him Respondent ' s quarterly employment
report. Each time Hu$hes told him that he would have to make an
appointment to see these reports at Respondent's headquarters
office, which was located less than five miles from the pit
(Tr. 35-48 ) 1 • At about 1:20 p.m. Nielsen issued Lakeview a
citation alleging a violation of 30 C. F. R. § 50 . 40(b), which
requires copies of this report to be maintained at the mine
office closest to mine site for 5 years after submission
(Exh. P-6, block 2).
The next evening at the closing conference Hughes produced
and allowed Nielsen to inspect the quarterly reports (Tr. 35,
447). The language of the regulation suggests that the quarterly
reports n~ed not be kept at the mine site. However, I conclude

1 credit Nielsen's testimony in this regard over Scott
Hughes' testimony at Tr. 445.
1

1505

that when it is read in conjunction with section 109{a) of the
Act, which requires that there be an office at every mine, the
regulation requires that a mine operator maintain quarterly
employment reports at the mine site.
The Secretary proposed a $100 civil penalty for this
violation. Considering the penalty criteria in section 110(i) of
the Act, I assess a $10 penalty2 • I deem Respondent's negligence
to be very low in that the language of the regulation suggests
that the quarterly reports need not be kept at the mine site.
Moreover, t he gravity of the violation was low. Lakeview
apparently timely filed the reports with the MSHA Health and
Safety Analysis Center as required by section 50.30. Finally,
Respondent rapidly abated the violation by bringing the reports
to the closing conference.
Citation 4120 697;
WEST 94-614-M )

~en

Door on Electrical Compartment (Docket

On his November 1993 inspection, Nielsen observed that the
door to an electrical juncti on box was open to an angle of 45
degrees. After Nielsen called this to the attention of Scott
Hughes, Hughes closed the door almost all the way with a wire
cable (Tr. 49-55, 108-112 ) 3 •
Section 56.12032 requires that cover plates on electrical
equipment and junction boxes be kept in place except during
testing or repairs. The door to the compartment observed by
Nielsen served as a cover plate. I read the standard as
requiring that such doors be completely closed. Otherwise,
electrical cables inside the compartment can be damaged by

With regard to all the violations discussed herein I have .
considered that Respondent is a small mine operator and t~at
there is no indication in the record that t he proposed penalties
will compromise its ability to stay in business. After
considering its history of past violations of the Act, I see no
reason to raise or lower any of the penalties, except as
specifically noted .
2

I find Inspector Nielsen's testimony regarding the size of
the opening more credible than that of Mr. Hughes at Tr. 449.
3

1506

exposure to the elements or someone . may inadvertently contact one
of the cables (Tr. 54-55) .
I conclude that consideration of the
penalty criteria in section llO(i} justifies assessment of a $50
civil penalty as proposed.
Citation 4332839: No Office At The Mine Site
On May 2, 1994, Inspector Nielsen issued Lakeview a citation
for violation of section l09 (a } of the Act. Respondent · did not
maintain a n office at the pit as required by that provision.
Afterwards , Respondent abated by designating its scale house as
the mine office and erecting a bulletin board.
There is no question that Respondent was in violation of
section l09 (a ) . I assess a $25 civil penalty rather than $50 as
proposed . The cited requirement is one of the more obscure
provisions of the Act. The Lakeview pit had been inspected on
several occasions previously without any of the inspectors making
an issue of the lack of a mine office. I deem this to be
evidence of extremely low negligence on the part of Respondent,
who appears to have been unaware of this requirement.
Citation 4332903: Alleged Ungrounded Portable Heater
On May 2, 1994, Inspectors Nielsen and Tanner saw an
unplugged portable heater sitting on a chair in the control room
of the pit (Tr. 60, 168 ) . The plug on the heater was a threeprong plug, from which one of the prongs had been removed
(Tr. 60-62, 454 } . Nielsen issued Respondent a citation alleging
a violation of section 56.12025, which requires that all metal
which encloses or encases electrical circuits be grounded or
provided with equivalent protection.
Respondent contends that the heater was double-insulated and
thus was provided with protection equivalent to the grounding of
the metal frame (Tr . 453-4, 522-24}. While the inspector~ insist
that the heater was not double insulated, they have not persuaded
me that they are correct. Nielsen conceded that he would have to
look at the heater again in order to determine whether or not it
was double-insulated (Tr. 121). Tanner conceded that he and
Nielsen did not inspect the heater to determin~ whether it was
marked as double-insulated (Tr. 169). I therefore conclude that
the Secretary has not met his burden of proving that equivalent

1507

protection was not provided. I therefore vacate this citation
and the corresponding proposed penalty.
Citation 4332838: Unsecured Drill Hose Sections
Inspector Nielsen found a drill, above the pit, connected to
an air compressor by a hose which consisted of sections. At two
points where the hose sections came together they were not
secured by locking devices. Also, the drill itself was not
secured to the hose (Tr. 67-73).
Nielsen issued citation 4332838 alleging a violation of
section 56.13021. rhat standard provides:
Except where automatic shutoff valves are used, safety
chains or other suitable locking devices shall be used
at connections to machines of high-pressure hose lines
of 3/4-inch iniide diameter or larger and between high
pressure hose lines of 3/4-inch inside diameter or
larger, where a connection failure would create a
hazard.
Neither Inspector Nielsen nor Inspector Tanner saw the drill
in use (Tr. 69-70, 161-62). Respondent's pit · manager Scott
Hughes contends that the drill was not operational and had not
been used in approximately 8 months prior to the inspection. He
kept the hoses hooked together to prevent dirt from getting
inside them and to prevent small animals from damaging the hoses
(Tr. 451-52, 521-22 ) .
The drill was not tagged out to indicate
that it was defective (Tr. 177).
If the drill is operated without sufficient locking . devices
there is a danger that the sections will separate and the loose
ends will whip violently and injure someone (Tr. 69-70)'.
Although I credit Mr. Hughes' testimony with regard to the
condition of the drill, I affirm the violation and assess the $50
penalty proposed by the Secretary.
Even though the drill had not been used, it was accessible
to miners and could be started by jump starting it with other
equipment (Tr. 162-63). Thus, without being tagged out the
condition of the drill was at least potentially hazardous to
miners.

1508

Citation 4332911: Inadequate Landing Below Ladder to Jaw Crusher
Inspector Nielsen concluded that there was insufficient room
at the base of a ladder on one of Respondent's jaw crushers to
provide safe access or egress (Tr. 73-75). He also concluded
that if one fell getting on or off the ladder, there was a sharp
drop of 8 feet below them (Tr. 73-74, Exhs. P-20 & 21). He
therefore issued Respondent citation 4332911, alleging a
violation of section 56.11001. The standard requires that a safe
means of access be provided and maintained to all working areas.
Scott Hughes contends that there was a 3 to 4 foot ledge
below the ladder and that there was a gradual slope below it
(Tr. 455-57 ) . I conclude that the testimony of inspectors
Nielsen and Tanner is too imprecise to affirm this citation.
They did not testify as to size of the ledge below the ladder or
the degree of the slope below that ledge. All I am left with is
their subjective view that access to the ladder was unsafe. That
does not provide a sufficient basis on which I can determine
whether section 56.11001 was violated as alleged. The citation
and proposed penalty are therefore vacated.
Citation 4332912: Ungrounded Lamp Post
During his May 1994 inspection, Mr. Nielsen observed a
portable lamp post which had a plug that had two prongs instead
of three (Tr. 78-79 ) . From this he concluded that the metal
frame was not guarded. He therefore issued citation 4332912
alleging a violation of section 56.12025.
The record establishes that the lamp post was available for
use and could have posed hazards to miners. Therefore, citation
4332912 is affirmed and a $50 civil penalty is assessed.
Citation 4332913: Maintenance Truck with Inoperative Horn and No
Back-up Alarm
Inspector Nielsen observed a 2-ton Ford service truck parked
in the pit area. The truck had been backed into its position.
Welding equipment sat in the rear cargo area. The truck was not
equipped with a reverse signal alarm and its horn did not work
(Tr. 80-85, 132-35, 457-461).

1509

Nielsen cited Respondent for a significant and substantial
("S&S") violation of section 56.14132(a). That standard requires
that horns and other audible warning devices provided on such
vehicle~ be maintained in a functional condition.
It is clear
that the standard was violated with regard to the horn, but there
is no evidence on which I can conclude that the condition of the
•
horn was a "S&S" violation.
There was no violation of section 14132(a) with regard to
the reverse signal alarm ~s I have concluded that the truck was
not equipped with one. I also conclude that the evidence does
not e.stablish that the truck was required to have such a device
under section 56.14132(b). Scott Hughes' testimony indicates the
truck did not have an obstructed view to the rear (Tr. 458-9).
The Secretary's testimony is much too imprecise to credit over
that of Mr. Hughes.
I affirm the citation with respect to the horn only and
assess a $25 civil penalty for a non-"S&S" violation. The record
does not establish the gravity of the violation and the Secretary
has conceded that Respondent's management was unaware that the
horn did not work (Exh. R-4). I therefore conclude that its
negligence, if any, was very low.
AUGUST 1995 INSPECTION

Shortly after the May 1994 inspection, Glenn and Scott
Hµghes consented to a judgment, which among other things,
prohibited them from participating in any MSHA inspections at
Lakeview Rock Products (Exh. P-68) . When Inspector Ronald
Pennington arrived to conduct an inspection on August 29-30,
1995, Scott Hughes left the site (Tr . 473-75); other company
officials accompanied Pennington.
Order 3908553: Missing Railings at the Edge of the Qpenipg for
the Jaw Crusher
On August 29, 1995, Pennington inspected the top d~ck of the
primary jaw crusher. No miners were working on the top deck at
this time. On the deck was a 49-inch by 45-inch opening situated
above the jaw. Inspector Pennington found the cover to the
opening fixed in an upright position and two of the four railings
around the opening missing. These were the railings on the East
and West side of the opening {Tr. 215-220).

1510

Pennington concluded that there was a danger that miners
could fall into the opening. He therefore issued section
l04 (d) (2) Order 3908553 alleging a violation of section 56.11002.
The standard requires that elevated walkways be provided with
handrails and be maintained in good condition.
. The inspector characterized Respondent's negligence as
"high" and therefore an "unwarrantable failure" to comply with
the Act for two reasons. First, Respondent had been cited for
failure to protect an opening of a jaw crusher by Inspector
Nielsen in May, 1994 (Exh. P-1).
Secondly, Pennington recalled
being told by members of the inspection party that the crusher
had operated "this way" for some time (Tr. 228 ) .
Inspector Pennington also concluded the miners were
regularly exposed to this unguarded floor opening.
He found a
hammer and a pry bar near it (Tr. 220). He also testified that
either miner Daren Bowman or miner Darin Paris told him that the
jaw is unjammed manually, if possible (Tr. 229-30, 317) .
At the hearing both these miners testified to the contrary,
as did pit manager Scott Hughes. All three said that the jaw is
never cleared manually. Instead , Respondent always uses an air
hammer attached either to a Kobelko excavator or John Deere
backhoe to unjam the crusher (Tr. 386-389, 436, 462-63 ). I
credit this testimony and find that employees were not exposed to
the open-sides of the jaw opening while clearing· rock jams.
Respondent, however, goes further and contends that miners
almost never go to the top deck of the crusher. Scott Hughes,
for example , testified that the only reason to be on the deck was
to inspect the manganese liner to the jaw, which he does .every
six months or so (Tr. 469 ) . Bowman (Tr. 393-94 } and Paris
{Tr. 435 ) also testified that there is no reason for a miner t~
go up on the top deck.
However, Respondent's witnesses were not particularly
consistent with regard to use of the top deck. Bowman at one
point testified that miners go up on the deck 2 to 3 times a week
to do greasing and maintenance (Tr. 387). Scott Hughes explained
the presence of the pry bar by testifying that he instruct~ his
miners to store tools on the platforms to avoid the possibility
that they may be scooped up by a front-end loader and fed through
the plant (Tr. 466 ).

1511

I therefore conc lude that miners were in the vicinity of the
jaw opening on a regular basis. However, it has not been
established that they were ever exposed to the hazard of falling
into this opening. The railings around the jaw opening were easy
to remove and reinstall. On some occasions, the railings were
removed to facilitate the work of the air hammer. When the air
hammer operated, there was no reason for miners to be on the top
deck. Respondent c ontends that the rails were reinstalled when
miners went to the top deck to do other tasks (Tr. 467-68 ) .
There i s no evidence establishing that this was no t the case.
Therefore, I vacate Order 3908553.
Order 39 08554; Missing Top Rail on the Top Deck of Jaw Crushe r;
Hole in the Deck Floor
The t op handrail guarding the eastern edge of the deck of
the jaw crusher was not in place on August 29, 1995. For a
distance of 75 inches horizontally, this edge was protected only
by a midrail. The deck was 13 to 14 feet above the adjacent
ground level (Tr. 248 - 253 ) . Additionally, there was a hole in a
corner of this edge of the deck with dimensions of approximately
24 by 18 inc hes (Tr. 25 0- 52 ) . The hole was immediately above the
bullwheel that serves as a counterweight for the jaw crusher
(Tr. 332 - 34, Exh . P-3 0) .
Inspector Pennington issued ano ther section 104(d) (2) order
for these conditions. The characterizations of "high" negligence
and "unwarrantable failure" are predicated on a notation in the
body of the order that an employee told Pennington that he had
reported the hole in the floor to the pit manager (Scott Hughes )
on a couple of occasions (Exh. P-28, block 8 ) . Mr. Pennington
testified that he received this information from either
Mr. Bowman or Mr. Parris (Tr. 253 ).
At hearing, however, Darin Parris testified that he did not
know anything about the hole until the day of the inspection and
that he thought he was on the walkaround with Pennington when he
noticed it (Tr. 434). Scott Hughes testified that he was unaware
of the hole until 5 minutes before he left the pit on the day of
the inspection and that ·he ordered it be fixed immediately
(Tr. 474-75). He testified that . he was not aware of the missing
·t oprail until the day after the inspection (Tr. 472-73). It

1512

appears that the railing could have been knocked off and the hole
created on the morning of the inspection by the air hammer
mounted on the Kobelko excavator (Tr. 543-44).
In s~mmary there is insufficient basis on which I can
conclude that Respondent's management knew of the cited
conditions for any appreciable peri~d of time before they were
noticed by Inspector Pennington. I therefore conclude that
"high" negligence and "unwarrantable failure" have not been
established.
I affirm this violation as a .,S & S" violation of section
104(a) of the Act. The Commission test for "S&S," as set forth
in Mathies Coal Co., supra, is as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
subs~antial under National Gypsum the Secretary
of Labor must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
The Commission, in United States Steel Mining Co .. Inc.,
FMSHRC 1573, 1574 (July 1984), held that S&S determinations are
not ' limited to conditions existing at the time of the citation,
but rather should be made in the context of continued normal
mining operations. I conclude that in the continued course of
normal mining operations it is reasonably likely that a miner
would fall into the unprotected hole in the deck or off the
inadequately protected deck perimeter. It is also reasonably
likely that he would be seriously injured by the fall.
I also conclude that a $500 civil penalty is warranted under
section llO(i). The deck of the jaw crusher was visible from the
control shed (Tr. 472) and Respondent's employees should have
reported the damage to the railing and floor if they had been
properly trained and supervised. I therefore conclude that
Respondent was to some extent negligent in the creation and

1513

persistence of this violation. Although Mr. Hughes testified
that he ordered the hole repaired immediately, it was not
repaired until Mr. Pennington required its repair (Tr. 474-75}:
Qrder 3908602; Records of Workplace Examinations
Section 56.18002(a) requires that a competent person examine
each working place at least once each shift for safety hazards.
It also requires that the mine operator immediately initiate
action to correct such hazards. Section 56.18002(b} requires
that records of such examinations be kept for a period of one
year and be made available to the Secretary of Labor.
On August 30, 1995, Inspector Pennington asked to see
Lakeview's daily workplace examination records. Respondent gave
him one report for each day in August 1995 signed by Daren
Bowman, who operated equipment such as front-end loaders
(Tr. 372-76, 383-4 ) . No other reports for the month of August
were produced at the inspection or anytime since, including at
the hearing.
George Miles, the control room operator, then brought
Pennington inspection reports for a few more dates in March,
April and May 1995. Respondent has never produced any records
for other dates in these months nor any for all of June and July
(Tr . 269, Exh. R-3 ) . There are no records for this time period
other than those contained in Exhibit R-3 (Tr . 538).
Respondent's employees Bowman and Miles, and pit manager
Scott Hughes testified that the daily inspections were done,
recorded and maintained as required. Obviously, the records
produced suggest otherwise. At a minimum the record establishes
that records were not kept for a period of a year and made
available to MSHA as required by section 56.18002(b}.
Although the Secretary alleged a violation of
section 56.18002(a), I amend the pleadings pursuant to Rul e lS(b)
of the Federal Rules of Civil Procedure and find an unwarrantable
failure to comply with section 56.18002(b). I assess a $1,500
civil penalty.

1514

It is obvious from the record that Respondent was very
cavalier about compliance with the daily inspection report
requirement. ·Not only should there be reports for every date,
but there should also be several reports, some covering the plant
and some covering vehicles, such as front-end loaders.
At the November 1993 inspection Lakeview was cited for its
failure to provide workplace examination records to the
Secretary. This order was litigated before me and affirmed as a
section 104(d) order, 17 FMSHRC 83 at 88-89. The prior
adjudication occurred prior to the time period covered by the
instant order. For Respondent to be unable to produce many of
the required records in August 1995 is aggravated conduct worthy
of the appellation "unwarrantable failure".
The gravity of the violation is unclear. However,
Respondent's negligence or intentional disregard of the record
keeping requirement, in light of its prior history of violations
of the same re,quirement, warrants a substantial civil penalty. I
conclude $1,SOQ is an appropriate figure taking into
consideration all the factors in section llO(i).
Citation 3908545; Unguarded Tail Pulley
Inspector Pennington also discovered a tail pulley on a
conveyor belt that was not protected with a guard {Tr. 273-277,
Exh. P-37). The fins of the tail pulley were 40 inches above
ground level and several water pipes partially shielded these
fins from contact by employees. · Debris falling from the conveyor
was normally cleaned up with a rake projecting from a front-end
loader (Tr. 494).
Pennington issued a citation for a "S&S" violation of
section 56.14107(a) of MSHA's regulations, which requires
guarding of moving machine parts. I affirm the citation and
assess a $100 civil penalty.
I credit the opinion of ·Inspector Pennington that the water
pipes did not 'block access to the unguarded fins of· the tail
pulley to the extent that a .guard· was not necessary. · I also
find that in the continued course of mining operations it was
reasonably likely that an accident would occur and that the
accident would result in a serious injury.
Although

1515

Respondent's normal practice was not to clean spill.s from the
conveyor manually, there is no reason why a miner might not
approach the unguarded pulley if it was more convenient to shovel
a spill rather than obtain the assistance of the front-end
loader.
Citation 3908560; Miners Wearing Tennis Shoes
On August 30, the inspector observed two miners wearing
tennis shoes on the site ~Tr. 281-85). Pennington cited
Respondent for an "S&S" violation of section 56.15003 which
requires "suitable protective footwear" when working in an area
in which hazards could cause injury to the feet.
Pennington considers the wearing of a hard leather shoe to
constitute compliance with the standard. Respondent's safety
policy requires the wearing of leather work boots (Tr. 495-96).
Since the parties appear to agree that "suitable protective
footwear" at the · Lakeview mine excludes the wearing of tennis
shoes I affirm the citation.
On the other hand there is not enough evidence in the record

regarding the normal activities of the two employees to warrant
finding a "S&S" violation. I therefore affirm the citation as
non-"S&S" and assess a $25 civil penalty.
In assessing the penalty I place particular weight on the
lack of evidence that Lakeview management was aware of the
violation and that the violations appear to be contrary to
company policy. Further, Scott Hughes appears to have taken
appropriate steps to prevent a recurrence of this violation
(Tr. 496) .
Citation 3908601; Lack of Berm on Ramp Leading to the Primary
Crusher
Pennington observed a front-end loader feeding the primary
crusher at a time when a horizontal distance of 12 feet on the
ramp leading to the crusher was unguarded by a berm (Tr. 286296). The tires of the loader were only 12 inches from the edge
of the ramp. There was a drop-off of between 10 to 12 feet from .
the side of the ramp.

The inspector issued a citation alleging an "S&S" violation
of section 56.9300(a). This regulation requires berms or
guardrails on the banks of roadways where a drop-off e xists of
sufficient grade or depth to cause a vehicle to overturn. I
conclude that a violation has been established and that it was
~s&S" under the Mathies test .
In the course of c ontinued mining
operations it is reasonably likely that a vehicle woul d overturn
due to the lack of a berm and that the driver would be seriously
injured .
Although the Secretary proposed a $69 penalty for this
violation, l assess a civil penalty of $300 pursuant to the
criteria in section llO(i) of the Act. Given the gravity of this
violation, I believe a penalty of $100 would be appropriate if
Respondent's negligence was low and this was the first berm
citation received by Lakeview . However, Pennington cited
Respondent for two berm viol ations in virtually identical
circumstances in 1992. These were affirmed by Judge Cetti in
August 1995, 17 FMSHRC 1413 at 1415-16. In view of this prior
history of violations a much higher civil penalty is warranted .
It also affects my view of Respondent's negligence with regard to
the instant violation.
Once a mine operator has been cited for a violation of this
nature, prudence would dictate more attention to assuring
compliance with the berm regulation. There is no evidence that
Lakeview took any steps to insure future compliance after the
1992 inspection .
Therefore, I conclude that a $300 civil
penalty is appropriate in view of the company's prior history of
violations and its lack of demonstrated prudence in attempting to
prevent recurrences.
Citation 3908549 (Docket WEST 96-209-M): Safe Access to El-Jay
Head Cone & Screen
Upon observing the El-Jay Head Cone & Screen, Inspec~or
Pennington determined that there was no safe way. to access this
equipment for maintenance (Tr. 297-303, 349-356). Pennington was
primarily concerned that miners could fall while accessing this
machine by climbing on an unsecured ladder and the railing above
the conveyor running to the El-Jay Cone & Screen. The record
establishes that miners did on some occasions access this
equipment in this fashion (Tr. 426-431).

1517

Pennington cited Lakeview for an "S&S" violation of section
56.11001 which requires that safe means of access be provided to
all working places .
I conclude that the fact that miners at
times found it convenient to climb onto the El-Jay cone crusher
via the unsecured ladder establishes a violation of the standard.
However, the Secretary has not eseablished that the violation was
~s & S".
Employees climbed on the crusher only when the plant
was turned off (Tr. 426-428). The only hazard established is
that of falling a few feet onto dirt.
I conclude that it has not been established that the likely
result of an accident due to this violation would be serious
injury . In view of this record, I assess a $50 civil penalty
rather than the $270 proposed by the Secretary.
ORDER

Respondent is hereby ordered to pay to the Secretary the
following civil penalties within 30 days of this decision:
Citation

Penalty

4120703
4120697
4332839
4332838
4332912
4332913
3908545
3908560
3908601
3908554
3908602
3908549

$
$
$
$
$
$
$
$
$

10

so

25
50
50
25
100
25
300
$ 500
$1,500
$
so

1518

Respondent is also directed to pay at the same time, if it
has not done so already, the penalties for the 14 violations for
which it withdrew its contest at the commencement of t ·h e hearing
(Tr. 21-25 ) . The total penalty for all 27 violations is $3,553 .

(it,1_ ~ J4'A~•
Art~ J . Amchan

----

Administrative Law Judge
Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway , Sui te 160 0 , Denver, CO 80202-5716
(Certified Mail )
Gregory M. Simonsen , Esq . , Kirton & McConkie, 60 East South
Temple , Sui te 18 00 , Salt Lake City, UT 84111 (Certified Mail )
dcp

1519

1520

ADMINISTRATIVE LAW JUDGE ORDERS

PBDmL llDIB 8UBTr AllD JIDL'l'JI ltBVX• COlllaSSXOll
1244 SPBBR BOULBVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
Auqust 6, 1996

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

v.
FALKIRK MINING COMPANY,
Respondent

.
.
.
.
..
..
..:

CIVIL PENALTY PROCEEDING
Docket No. CENT 96-81
A.C. No. 32-00491-03514
Falkirk Mine

ORDER DENYING MOTION FOR SUMMARY DECISION
Falkirk Mining Company ("Falkirk") filed a motion for
summary decision in this case pursuant to Com.mission Rule 67,~ 29
C.F.R. S 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 interrogatories, 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 citation in this proceeding alleges that:
The electrical power connections were
unguarded and exposed where the welding leads
connected to the generator mounted on the 369
belt maintenance truck. Adequate examinations were not made to disclose a potentially
dangerous condition.
As originally written·, the citation alleged a violation of 30
C.F.R. § 77.502. This safety standard requires frequent
examinations of electrical equipment to assure safe operating
conditions and, when a potentially dangerous condition is found,
requires that such equipment be removed from service until the
condition is corrected.

1521

The citation was modified during an MSHA health and safety
conference to change the safety standard allegedly violated. As
modified, the citation alleges a violation of 30 C.F.R. S 77.504
on the basis that the "electrical connections were not insulated
to the same degree of protection as the remainder of the wire."
Section 77.504 provides, in part, that electrical connections and
splices in insulated wire shall .be reinsulated at least to the
same degree of protection as the remainder of the wire.
In answers to interrogatories posed by Falkirk, the Secretary replied that Falkirk "did not comply with 77.502 which was
cited." The Secretary also stated: "Citation was modified to
77.504 which is in error, inspector cited correct standard
77.502 •••• " At the time these discovery responses were filed,
the Secretary was represented by an MSHA Conference and
Litigation Representative. Following the filing of Falkirk's
motion for summary decision, Ms. Kristi L. Floyd of the Office of
the Solicitor entered an appearance as the Secretary's representative in this case. Ms. Floyd filed an amended response to
Falkirk's discovery stating that Falkirk violated section 77.'504,
as stated in the modification to the citation, and withdrew the
previous answers· to the discovery that stated that the Secretary
was alleging a violation of section 77.502.
Falkirk argues that the citation should be vacated for three
reasons. First, it contends that the Secretary expressly
admitted in his discovery responses that Falkirk did not violate
section 77.504. It argues that once the Secretary filed his
petition for penalty and Falkirk filed its answer, the Secretary
was without authority to amend the citation without Falkirk's
consent or leave of the judge. It states that since the court
did not authorize the amendments and Falkirk did not consent to
them, the Secretary must proceed under section 77.504, as alleged
in the petition for penalty. Falkirk further argues, however,
that the Secretary admitted in his discovery responses that
Falkirk did not violate section 77.504. Thus, it contends that
this proceeding must be dismissed. Falkirk points to ComiDission
Procedural Rule 6, 29 C.F.R. S 2700.6, which states that, in
signing a document, a representative of a party certif ~es that
the document is well grounded in fact and law. It contends that
the Secretary is bound by this admission.
In response, the Secretary argues that he is not bound by
the incorrect answers he filed in response to Falkirk's discovery . First, he argues that the Commission does not require
signatures on discovery requests and responses and, consequently,
the answers relied upon by Falkirk were not signed by the Secretary. Second, even if the answers were signed, the party's
representative merely certifies that, to the best of his knowledge, information and belief, the answers were well grounded in
fact.

1522

I conclude that this proceeding should not be dismissed on
the basis of the Secretary's incorrect discovery responses.
Under the facts of this case, I hold that the Secretary's
response that Falkirk did not violate section 77.504 should not
be construed as an admission. Instead, it was an error and,
although it did create some confusion, the error is not fatal to
the secretary's case. The Secretary withdrew the incorrect
discovery responses. The petition for penalty filed under 29
c.F.R. S 2700.28 alleges a violation of 30 C.F.R. S 77.504 and
the retracted answers to discovery do not change that fact. The
hearing in this matter has yet to be scheduled, so Falkirk will
have sufficient time to prepare its defense to the alleged
violation of section 77.504.
Falkirk next argues that this case should be dismissed
because the cited welding leads are not "electrical connections
or splices in insulated wire." It argues that the Secretary's
interpretation of the standard to cover welding leads or the
terminals on the generator is "plainly wrong" and is not entitled
to deference. It argues that the plain language of section
77.504 applies to splices or connections used to attach insulated
wires, not to the ends of welding leads or terminals on electrical equipment. Falkirk also contends that the Secretary's
~
Program Policy Manual supports its interpretation. Falkirk
states that the area where the ends of the welding leads attach
to the terminals on the generator, a piece of electrical equipment, is not an "electrical connection or splice in insulated
wire."
·
The Secretary maintains that Respondent's argument raises an
issue of material fact because the Secretary believes that the
area on the generator where the welding leads attach is an electrical connection. He contends that the regulation governs both
splices in insulated wire and other electrical connections. The
Secretary states that he is not alleging that the ends of the
welding leads are the electrical connections, but rather that the
electrical connections that are a part of or are attached to the
welder/generator are the "electrical connections" referred to in
the cited standard.
As stated above, the standard requires, in part, that "electrical connections or splices in insulated wire shall be· reinsulated at least to the same degree of protection as the remainder
of the wire." There is no dispute that the terminals where the
welding leads connected to the welder/generator were not insulated to any degree. The question is whether this type of electrical connection is covered by the safety standard. I was
unable to find any reported cases on this issue so this case may
present an issue of first impression for the Commission. The
focus of the standard is on electrical connections and splices
between insulated wires. If an insulated wire is spliced or if
two insulated wires are connected, the wires must be "reinsu-

1523

lated" at the conn'e ction so as to provide the same degree of
protection as the remainder of the wire. In this case, however,
two wires are not connected, rather the wires are connected to a
piece of electrical equipment at a terminal. Exhibit 1 to the
affidavit of Michael Wegleitner submitted by Falkirk with its
motion for summary decision is a photoqraph of the generator at
the time the citation was issued and it shows the two terminals
involved. The terminals appear to be similar to the terminals on
an ordinary automobile battery. The ends of the wires are equipped with devices that slip over the terminals and are tightened.
The terminals are marked "+" and "-" and are color coded. The
area where the wires attach to the terminals are not insulated or
protected from contact in any way.
The issue in this case is not whether a greater measure of
safety is provided if terminals are quarded so that individuals
cannot come in contact with them. The issue is whether the
safety standard requires the terminals to be "reinsulated at
least to the same degree of protection as the remainder of the
wire." · The Secretary's Program Policy Manual, Volume V, does-. not
provide any qµidance. It simply states that "connections or
splices in insulated conductors shall be reinsulated to at least
the same degree of protection as . the remainder of the conductbr."
Id. This lanquage is concerned with the connection of two wires
not the connection of a wire to a terminal on a piece of electrical equipment.
I believe that the motion for summary decision presents a
close issue. The cited condition does not squarely fit within
the plain lanquage of the safety sta.n dard. It is / not clear
whether there was an electrical connection "in insulated wire."
It is also not clear that these terminals are "electrical
cqnnections," as that term is used in the standard. In addition,
it does not appear that the Secretary required Falkirk to "reinsulate" insulated wire in order to abate the condition. The
termination notice states that the "power connections on the
welding machine ••• were guarded to prevent inadvertent contact
by persons." (emphasis added). Exhibit 2 to Mr. Wegleitner's
affidavit is a photograph of the welder after the condition was
abated. It appears that Falkirk simply attached a plece of
rubber-like material above the terminals so that the terminals
were not exposed. It does not appear that the terminals and the
wires were "reinsulated."
The Secretary is accorded a considerable degree of deference
in the interpretation of his safety and health standards. "Since
the Secretary of Labor is charged with responsibility for implementing this Act ••• the Secretary's interpretations of law and
requlations should be given weight by both the Commission and the
courts." s. Rep. No. 181, 95th Cong., 1st Sess. 49 (1977),
reprinted in 1977 u.s.c.c~A.N 3401, 3448. The Secretary arques
that the terminals involved are electrical connections as that

1524

term is used in the standard. The language of the standard is
ambiguous with respect to this issue. If a safety standard is
"silent or ambiguous with respect to the specific issue" in the
case, "the question for the court is whether the [Secretary's
interpretation] is based on a permissible construction" of the
standard. Thunder Basin Coal Co. v. FMSBRC, 56 F.3d 1275, 1277
(10th Cir. 1995), quoting Chevron U.S.A., Inc. v. Natural
Resources Defense Counsel, Inc., 467 U.S. 837, 843 (1984).
Although Falkirk presents compelling arguments to support its
interpretation, I am unable to hold, at this point in the litigation, that the Secretary's interpretation is incorrect as a
matter of law.
Moreover, as stated above, it is not clear whether the area
cited is an "electrical connection" as that term is used in the
safety standard. I am unable to make that determination on the
present record .because there is insufficient evidence as to the
meaning of that term. Accordingly; I find that there exists a
genuine issue of material fact.
Finally, Falkirk contends that the Secretary failed to give
it fair notice of his interpretation that welding leads and
terminals are electrical connections or splices within the
meaning of section 77.504. It argues that a reasonably prudent
person familiar with the mining industry and the protective
purposes of the standard would not have recognized that the cited
condition was covered by the safety standard. Falkirk states
that neither the standard nor the Secretary's Program Policy
Manual even hints that the standard applies to the terminals on a
welder/generator. It also contends that the Secretary's "flipflops" concerning the appropriate safety standard supports its
position that the citation does not meet the reasonably prudent
person test.
The Secretary maintains that the terminals are electrical
connections and "the standard gave fair and adequate notice to
Falkirk that it should guard and maintain the area, so as to
prevent likely injuries from a person coming in contact with it."
(Sec. Response at 5). It further states that, given Falkirk's
position, there is a genuine factual issue as to the meaning of
the term "electrical connection."
The Commission uses the reasonably prudent person test
described by Falkirk to determine whether the Secretary provided
fair notice of his interpretation of a safety standard. The
Commission has held that a safety standard cannot be "so
incomplete, vague, indefinite or uncertain that [persons] of
common intelligence must necessarily guess as its meaning and
differ as to its application." Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (December 1982)(citation omitted). The Commission has determined that adequate notice of the requirements
of a broadly worded standard is provided if a reasonably prudent

1525

person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard. Ideal cement Co., 12 FMSHRC
2409, 2416 (November 1990); Lanham Coal Co., 13 FMSHRC 1341, 1343
(September 1991). In Lanham, the Commission vacated a judge's
decision because he did not apply the reasonably prudent person
test to determine whether the mine operator had notice of the
specific requirements of the standard. 13 FMSHRC at 1344. In
that case, the record contained evidence that the safety standard
had not been previously interpreted to cover the practice cited
by the inspector. 13 FMSHRC at 1343. On remand, the judge
vacated the citation . 13 FMSHRC 1710 (October 1991).
I find that genuine issues of fact must be resolved before I
can determine whether the Falkirk had fair notice that section
77.504 applies to the terminals ~n welder/generators. For
example, the record does not contain evidence of MSHA's enforcement history of this safety standard. The Secretary may be able
to present evidence to demonstrate that mine operators were
provided with_ reasonable notice of its interpretation. MSHA may
have issued similar citations at other mines or provided operators with notice through other means. There is no evidence as
to the reasonableness· of the Secretary' .s interpretation of the
term "electrical connection." In short, the r.ecord does not
contain the factual foundation I need to analyze the issues
raised by Falkirk.
Accordingly, Falkirk's motion for summary decision is DENIED
on the basis that there are genuine issue·s of material fact and
Falkirk is not entitled to summary decision as a matter of law.

Richard W. Manning
Administrative Law Judge

Distribution:
Kristi L. Floyd, · Esq.~ Offi ce of the Solicitor, U.S. Department
of Labor, 19 99 Broadway, Suite 1600, Denver, co 80202-5716
Andrew S. Good, Esq., NORTH AMERICAN COAL CORP . , 14785 Preston
Road, Su i te 1100, Dallas , TX 75240-7891
RWM

1526

nmmr. UJm sum mm BDL'l'll JtBVXn coar-..-rssxo•
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
August 21,
,. 1996

SUMMIT I INC. ,

CONTEST PROCEEDIN~S
Contestant
Docket No. CENT 95-108-RM
citation 4422929, 1/9/95

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

.
.
.
.

..

Docket No. CENT 95-109-RM
Order No. 4422930, 1/9/95
Docket No. CENT 95-110-RM
Order No. 4422931, 1/9/95

:

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

·Respondent

CIVIL PENALTY PROCEEDING

.
.
:

Docket No. CENT 96-45-M
A.C. 39-01284-05514 X52
Open cut-Lead Mine

ORDER DBHYING XO'l'IOll TO COXPBL

Summit, Inc. ("Summit") filed a request for the production
of documents in these proceedings. In response, the Secretary of
Labor provided certain documents but refused to provide others on
the basis of the informant's privilege and the deliberative
process privilege. Subsequently, Summit filed a motion to compel
production of the documents that were withheld. The .s ecretary
opposed the motion to compel. By order dated August 9, 1996, I
ordered the Secretary to provide, for my in camera inspection, a
copy of each contested document. I have determined that the
requested documents are relevant to these proceedings. For the
reasons discussed below, Summit's motion to compel is denied.
I.

Interview Memoranda of Miners

In January 1995, an employee of Summit was killed at the
Open cut-Lead Mine. The Mine Safety and Health Administration
("MSHA") conducted an investigation. During this investigation,
an MSHA special investigator interviewed a number of miners. The
special investigator prepared a memorandum summarizing, in
detail, the statements made by each miner. These memoranda were

1527

forwarded to me for my review. The Secretary provided summit
with copies of the interview memoranda for Summit's management .
employees, Homestake Mining Company's management employees, MSHA
employees, and employees of a~ engineering consulting firm
retained by Homestake Mining Company.
(Homestake Mining company
owns the Open cut-Lead Mine.) The only memoranda that were
withheld are the ones that summarize the interviews of Summit's
hourly employees . After reviewing the interview membranda, I
conclude that each one is protected by the informant's privilege.
The Commission has stressed the importance of the informant's privilege under the Mine Act. Bright Coal Co., 6 FMSHRC
2520 (November 1984). The Commission held that this privilege is
applicable to the furnishing of information to government officials concerning violations of the Mine Act. 6 FMSHRC at 2524.
It is the name of the informant, not the contents of the statement, that is protected, unless disclosure of the contents would
tend to reveal the identity of an informant. Asarco, 12 FMSHRC
2548, 2554 (December 1990) ("Asarco I"), citing Roviaro v. United
States, 353 U.S. 53 , 60 (1957). The secretary bears the burden
of proving facts necessary to support the existence of the privilege. Asarco I, 12 FMSHRC at 2553.
Each memorandum at issue in this case contains the name of
the informant making the statement. In addition, I find that
disclosure of the contents of each memorandum would tend to
reveal the identity of the informant. Finally, each memorandum
contains the names of other miners, many of whom are also informants. Accordingly, I conclude that each memorandum is protected
by the informant's privilege. Redacting out names and identifying sentences or paragraphs is not feasible because of the
detailed nature of the memoranda. It would not be possible for
the Secretary to provide Summit with meaningful portions of the
memoranda without revealing the identity of one or more informants.
Because the informant's privilege is a qualified privilege,
I must perform a balancing test to determine if Summit's need for
the memoranda is greater than the Secretary's need to maintain
the privilege to protect the public interest. Bright, ·6 FMSHRC
at 2526. The burden is on summit to prove facts necessary to
show that disclosure of the memoranda is necessary. to a fair
determination of the case. Id. Factors to be considered in conducting this balancing test include whether the Secretary is in
sole control of the requested material and whether Summit has
other avenues available from which to obtain the substantial
equivalent of the requested information. Id. In performing the
balancing test, the issue is whether Summit can get substantially
the same information by deposing those miners who have knowledge
of the circumstances surrounding the fatal accident. Asarco, 14
FMSHRC 1323, 1331 (August 1992)("Asarco II " )

1528

I conclude that summit could get substantially the same
information by interviewing or deposing miners who worked at the
mini-pit at the time of the accident . i reach this conclusion
based on the simple fact that miners who work in the area of an
accident are the most likely "to have information concerning the
events in question.
Summit states that it is entitled to any exculpatory
material contained in the interview memoranda. In Bright, the
Commission held that "an informer is entitled to anonymity,
regardless of the substance of the informati on he furnishes." 6
FMSHRC at 2524. The "applicability of the informer's privilege
to the Mine Act does not rise or fall based on the substance of a
person's communication with government officials concerning a
violation of the law . " 6 FMSHRC at 2525.
summit will be entitled to the names of any miner witnesses
two days be fore the hearing. 29 C.F.R . § 2700.62; Asarco II, 14
FMSHRC at 1331 . Summit will also be enti tled to obtain the
interview memorandum for any miner who is called to testify by
the Secretary, in order to refresh that witness's recollection or
to impeach his- testimony. Asarco II, 14 FMSHRC at 13 31.
Summit's right to the these interview memoranda at the time of
trial is a separate and procedurally distinct issue from the
discovery issue presented here. Id . (citation omitted).
II .

Special Investigation Reports

MSHA's special investigator prepared two reports . One is
directed at Homestake Mining Company and the other summit. Both
concern whe ther there were "knowing and/or willful" violations at
the mine. Each report consists of three parts: an introduction
with a factual background, a summary of the interviews taken by
the MSHA i nvestigator, and a recommendation concerning what legal
actions s hould be taken by the agency. The reports r e commend
that civ il penalties be assessed against agents of Summit under
section llO(c ) of the Mine Act. The reports were prepared by an
MSHA special investigator and were directed to Vernon R. Gomez,
Administrator, through Robert M. Friend, Dis trict Manager. I
find that portions of these documents are protected from
disclosure by the informant's privilege and the delibe rative
process privilege.
The i ntroductory parts of both reports have been prov ided to
Summit. Most of each report is a summary of the statements made
to the MSHA investigator, as described in section I , above. The
Secretary has already provided summit with the memoranda summarizing the s tatements made by individuals who were not hourly
employees of Summit at the time of the accident. For the reasons
set forth i n section I a bove, the summaries of hourly employees
are prot e cted by the informa nt's privilege. In addition, for the

1529

reasons discussed above, Summit's need for the summaries is not
as great as the Secretary's need to maintain the privilege to
protect the public interest.
Other portions of the reports are protected by the deliberative ' process privilege. This privilege protects communications
between subordinates and supervisors within the government that
are "antecedent to the adoption of an agency policy.'' Contests
of Respirable Oust Sample Alternation Citations, 14 FMSHRC 987,
992 (June 1992), quoting Jordan v. Dept. of Justice, 591 F.2d 753
(D.C. Cir. 1978). The communications must be "related to the
process by which policies are formulated." Id. The conclusion
and recommendation section fits within the deliberative process
privilege. This section in the reports contain the recommendation of the special · investigator, a subordinate, to Mr. Gomez,
a supervisor, that the agency bring proceedings under section
llO(c). The recommendation was not a final agency decision, but
was "prepared to facilitate and inform a final decision or
deliberative function entrusted to the agency." Providence
Journal Co. v. U.S. Dept. of Army, 981 F.2d 552, 560 (1st Cir.
1992).
I also conclude that Summit's need for the recommendation
section does not outweigh the Secretary's interest in keeping it
confidential. These recommendations contain the investigator's
interpretation of the legal implications of the facts obtained
during the interviews. He recommends that section llO(c) charges
be filed. The recommendations merely reflect the opinion of the
MSHA investigator and are not a final agency determination. 1
III.

Other Documents

The secretary contends that two other sets of documents are
protected from disclosure. I agree. First, a document entitled
"Participants in the Investigation" lists the individuals interviewed by the special investigator and provides addresses and
phone numbers. Summit already has the names of the individuals
who were interviewed by the special investigator, with the exception of the names of the hourly employees that were interviewed.
The names of the hourly employees who participated in the investigation are protected by the informant's privilege. I presume
that Summit has the addresses and phone numbers of its own
employees. Moreover, the interview memoranda that were given to
The interview summaries also summarize interviews with
Summit and Homestake management and MSHA officials. Summit
already has copies of the memoranda of these. interviews and,
thus, has all of the factual information contained therein. The
summaries are protected by this privilege because they reflect
the deliberative process by highlighting what the investigator
considered to be important information.

1530

summit should contain this information for the others who were
interviewed. Accordingly, the Secretary need not provide this
document.
The Secretary sent me three, one-page documents entitled
"Possible Knowing/Willful Violation Review Form." They are
signed by Gary Grimes, an MSHA inspector, and contain his opinion
that there was a possible "knowing and/or willful violation" of
the Secretary's safety standards. There is a separate form for
the citation and two orders that Mr. Grimes issued. For the
reasons discussed above with respect to the recommendation
section of the special investigator's report, these documents are
protected by the deliberative process privilege and need not be
disclosed by the Secretary.
ORDER
Accordingly, Summit's motion to compel is DENIED.

Judge

Distribution:
John D. Austin, Esq., AUSTIN & MOVAHEDI, lOOl Pennsylvania
Avenue, Suite 301, Washington, DC 20004
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
RWM

1531

PEDER.AL MID SAPETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3S77/FAX 303-844-5268

.

August 30, 1996

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

.
.

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

v.
NEWMONT GOLD COMPANY,
Respondent

South Area - Gold Quarry ·

ORDER RULING ON DELIBERATIVE PROCESS PRIVILEGE
During the week of July 22, 1996, Newmont Gold Company
("Newmont") scheduled depositions of several officials of the
Department of Labor's Mine Safety and Health Ad.ministration
("MSHA"). At these depositions, the Secretary objected to
deposition questions posed by counsel for Newmont on the basis of
the deliberative process privilege. The parties called me and
asked me to rule on these issues. 1 In my oral ruling, I construed the deliberative process privilege more narr0wly than that
advocated by the Secretary. As a result of these and other
disputes between the parties, the depositions were terminated
prematurely. The Secretary filed a motion asking that I
reconsider my deliberative process privilege rulings and he
briefed the issue. Newmont opposes the Secretary's motion and
also briefed this issue. Because I did not have the benefit of
briefs in my prior ruling, I GRANT the Secretary's motion to
reconsider the issue and enter the following order. Accordingly,
I vacate my prior oral ruling.
Background
These cases involve two citations and two orders (collectively, the "citations") alleging mercury contamination at
Newmont's South Area Gold Mine. Newmont contends that the
Secretary, without notice to the mining community, adopted. a
"zero tolerance policy" under which MSHA inspectors are
instructed to issue citations if they find even trace amounts of
mercury in active areas of a mine. In its discovery, Newmont

Because I was on vacation in Ouray, Colorado, at the time
of this call, I did not have the benefit of reference materials and
the parties could not brief the issues.

1532

sought to obtain information about this policy. The Secretary
refuses to answer any discovery about this issue to the extent
that such discovery questions request information that the
Secretary contends is protected by the deliberative process
privilege.
In an order dated July 10, 1996, I ruled that information
concerning the alleged zero tolerance policy is rel~vant or
appears likely to lead to the discovery of relevant evidence.
Accordingly, I held that inquiry into this policy is an
appropriate subject for discovery.
Despite the fact that the Secretary denies the existence of
a zero tolerance policy, he maintains that inquiry into this
issue is improper because it is protected by the deliberative
process privilege. The Secretary states that Newmont "seeks to
discover internal agency discussions pertaining to agency
guidelines or policies upon which an MSHA inspector relied
regarding the interpretation of the regulations at issue."
(Motion to Reconsider at 4). He further states that "the preenforcement action discussions among MSHA personnel with regard
to the issuance · of the citations in this case are protected by
the privilege •••• " Id. The Secretary argues that MSHA's
"decision" to issue a citation is protected by the deliberative
process privilege .
Newmont contends that only predecisional communications are
protected so that the privilege does not apply to final opinions
or dispositions. It contends that the information it seeks "goes
directly to the agency's 'decision' to issue the citations."
(Newmont's Response at 21). Newmont states that the deposition
questions and document requests relate to the agency's decision
to issue the citations at issue.
The Commission discussed the deliberative process privilege
in some detail in In Re: Contests of Respirable Dust Sa.m ple
Alteration Citations, 14 FMSHRC 987, 988-95 (June 1992) ("Oust
Case"). The Commission noted that "public officials are entitled
to the private advice of their subordinates and to confer among
themselves privately and frankly, without fear of disclosure •• •• "
14 FMSHRC at 991 (citation omitted). The Commission emphasized
that the "privilege attaches to inter- and intra-agency communications that are part of the deliberative process preceding
the adoption and promulgation of an agency policy." Id. at 992
(citation omitted)(emphasis added). The Commission further
stated that the "privilege protects only communications between
subordinates and supervisors that are actually antecedent to the
adoption of an agency policy ..•. " Id. (emphasis in original).

1533

Discussion
Under the Secretary's interpretation of the deliberative
process privilege, a mine ope~ator can not question an MSHA
inspector about the substantive reasons why he issued the citation if he discussed the citation with his supervisor. A few
examples of instances where the privilege was invoked illustrate
the conflict. Inspector Michael Drussel issued the bitations in
these cases. Two of the citations allege that miners consumed
food in an area where mercury was found . At Inspector Drussel's
deposition, counsel for Newmont asked the following question:
Were you provided with any guidelines,
written or oral, on how to interpret the
standard that prohibits the consumption of
food or beverages when there is a potential
toxic substance present?
(Depo. Tr. at 160). Counsel for the Secretary advised the
inspector "not to give any specific statements that were made in
the deliberati-ye process prior to the issuance of the citation."
Id. Counsel for Newmont next asked:
Would you tell me what guidelines or
interpretations [were ) provided to you so
that you could apply the regulation for the
consumption of food or beverages in the areas
where potential toxic [materials] were
present?
Id. at 161. Counsel for the Secretary stated "[i]f you're asking
about Newmont and how that decision was made, that's privileged
and we'll object to that." Id .

Counsel for Newmont also asked Inspector Drussel "how he was
told to interpret and apply the regulation that prohibits the
consumption of food or beverages in area where potential toxic
[materials] are present." (Depo . at 162). Counsel for the
Secretary instructed Inspector Drussel not to answer any questions about MSHA policy or interpretations as they applied to the
issuance of these citations at the mine. (Id. at 162-63).
Thus, it is clear that the Secretary takes the position that
its final "decision" with respect to the citations in these cases
was made when Inspector Drussel actually put pen to paper to fill
out the citation form. Sinc e the citation itself was the
agency's final decis i on, questions about what Inspector Drussel
rel ied upon i n c onc luding that violations occurred is privileged.
I disagr e e with the Secreta ry's approach in these cases. A mine
operator i s enti tled t o know how MSHA interpreted a standard when
it determi ned that the operator violated that standard.

1534

In a case involving a simpler standard, problems do not
generally arise. For example, if an inspector finds an unguarded
pinch point on a conveyor system, he can determine that a safety
standard was violated and issue a citation on the spot. When
asked why he issued the citation, the inspector can reply that
the pinch point was not guarded ~nd was in an area where someone
can get seriously injured.
'
The standards involved in these cases are not so straightforward . For example, the standard involved in the colloquy set
forth above states that "[n]o person shall be allowed to consume
or store food or beverages in ••• any area exposed to a toxic
material . " 30 C.F.R. S 56.20014. Newmont is entitled to know
why MSHA believes that this standard was violated. What does
MSHA consider to be an area exposed to toxic material, as far as
mercury is concerned? If in issuing the citations, Inspector
Drussel relied on oral instructions from his supervisors or
written MSHA documents, is Newmont entitled to inquire about
these statements and documents? The Secretary seems to be taking
the position that its policies on mercury contamination are not
final, so that any discussions or documents about these policies
are protected._by the deliberative process privilege. While such
policies may not be final as to .the mining industry in general,
they are certainly final as to Newmont as evidenced by the four
citations that were issued.
As discussed in the Dust Case and in numerous cases cited by
the Secretary, the deliberative process privilege protects
"[d]iscussions· among agency personnel about the r~lative merits
of various positions which might be . adopted ••• " Mead Data
Central, .Inc. v. Dep't . of the Air Force, 566 F.2d 242, 257 (D.c.
Cir. 1977). This flows from the fact that public officials
should be encouraged "to confer among themselves privately and
frankly, without fear of disclosure, otherwise the advice
received and the exchange of views may not be as frank and honest
as the public good requires." Dust Case, 14 FMSHRC at 991
(citation omitted) . once a policy is adopted at a mine, however,
MSHA is no longer deliberating because it has taken a final
action. "[I]t is difficult to see how the quality of a decision
will be affected by communications with respect to the decision
occurring after the decision is finally reached." NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 151 {1975).
The . Court of Appeals for the District of Columbia described
the boundaries of the deliberative process privilege in Coastal
States Gas Corp. v Dep 't o f Energy, 617 F.2d 854, 866-68 (1980) .
In discussing a request for documents, the court stated that this
privilege "covers recommendations, draft documents, proposals,
suggestions, and other subjective documents which reflect the
personal opinions of the writer rather than the policy of the
agency . " Id. at 866 . Documents or discussions that are

1535

protected by the privilege "are those which would inaccurately
reflect or prematurely disclose the views of the agency, sug- ·
gesting as agency position that which is as yet only a personal
position. 0 Id. The court we~t on to state that "even if the
document is predecisional at the time it is prepared, it can lose
that status if it is adopted, formally or informally, as the
agency position on an issue or is used by t~:.e agency in its
dealings with the public." Id.
~
MSHA may decide that an operator violated a standard prior
to the time that the inspector puts pen to paper and issues the
citation. In complex or disputable situations, the decision is
made before the inspector arrives at the mine to issue the
citation. A final agency decision is made at the time MSHA
determines that a violation occurred and that a citation will be
issued, not when the inspector fill out the MSHA citation form.
This decision may be made by the inspector, by one or more MSHA
supervisors, or by both. 2
An illustrative example is helpful. Suppose an inspector
reports back to his supervisor after he inspects a mine and
discusses with pim a condition he observed at the mine that he
feels may be a violation of a safety standard. The inspector and
his supervisor "kick around" several ideas and engage in a frank
discussion. The supervisor "plays devil's advocate" during these
discussions. After a lengthy discussion, the supervisor and
inspector agree that a citation should be issued under a
particular safety standard and they outline three substantive
reasons why the standard was violated. In making this decision,
the supervisor relies, in part, on a memo he recently received
from MSHA headquarters. The next day the inspector returns to
the mine, writes a citation, and gives it to the mine manager.
The citation does not list the three factors that led the
inspector to issue the citation. During a deposition of the
inspector, the mine operator asks why the citation was issued.
The Secretary allows the inspector to repeat what is written in
the citation but will not allow the inspector to discuss any of
the three factors or MSHA's interpretation of the safety standard
2

When an inspector fills out the ~SHA citation form, he is
memorializing his decision that a violation occurred. The citation
form does not set forth MSHA' s interpretation of the safety
standard or describe the reas ons why the inspector believes that a
violation occurred.
The citation form contains only factual
allegations and MSHA' s conclusions as to the penalty criteria. The
citation form is not the agency "decision." In contrast, when an
agency issues a final written policy statement or other document,
suc h as a formal decision, the document conta.ins the rational for
the agenc y's policy or decision.
The document itself is the
"dec ision" and any prior drafts or discussions leading up to the
fina l d ocument are generally protected.
1536

because the inspector discussed them with his supervisor and they
are protected by the deliberative process privilege.
In that example, the pre.liminary discussions are protected
by the deliberative process privilege because they were predecisional. Neither the inspector nor the supervisor should be
required to testify about their frank discussions. .Dnce the
supervisor and inspector determined that a citation ~hould be
issued, however, the discussions were no longer predecisional or
deliberative. These discussions relate specifically to the
decision to issue the citation and the substantive reasons why
MSHA believes that the safety standard was violated . There
should be no expectation that a decision to take an enforcement
action will remain confidential. I recognize that there will not
always be a "bright line" between those discussions that are
preliminary in nature and those that follow the decision to issue
a citation.
Likewise, all or part of the MSHA memo relied upon by the
supervisor may not be subject to the privilege because it was
made a part of the final decision to issue the citation. The
fact that the ·memo was a preliminary expression of MSHA policy is
not necessarily dispositive. If MSHA chooses to rely on a preliminary policy when making enforcement decisions, the policy may
no longer be preliminary as to that mine operator. It was "used
by the agency in its dealings with the public." Coastal States,
at 866.
Application of Privilege to these Cases
I do not know when MSHA decided that conditions at the mine
violated the cited safety standards. It appears, however, that
the decision was made after considerable deliberation and that it
was made before Inspector Drussel wrote the citations. It also
appears that the inspector may have relied upon instructions from
his supervisors and MSHA policies or practices in interpreting
the cited safety standards. Finally, it appears that he used
these instructions and policies when he interpreted the standards
to find violations at the mine.
Under fundamental concepts of due process, Newmont is
entitled to ask appropriate MSHA officials how the cited standards were interpreted by MSHA as applied to the South Area Gold
Quarry. The Commission and the courts are required to accord the
Secretary's interpretation of his standards a considerable degree
of deference. Thus, it is important for the Commission and the
mine operator to understand the basis for the Secretary's interpretation. The Secretary cannot take the position that MSHA's
interpretation of a safety standard as expressed by its enforcement personnel is not subject to disclosure because it is privileged and then maintain that the Commission must def er to that
interpretation.

1537

In determining whether a discussion is protected by the
privilege, the parties shall look to whether the discussion was
predecisional, did it occur before the decision was made to issue
the particular citation, and:Whether the discussion was
deliberative, did it reflected the give-and-take of the
consultative process. See, Coastal states, at 866 . Based on
this two part test, I make the determinations set forth below.
These determinations are to provide general guidance and are
based on the concepts set forth in this order.
1. Predecisional discussions and recommendations made to
supervisors concerning MSHA policy on mercury contamination or
the interpretation of the standards cited in these cases are
protected by the deliberative process privilege. Predecisional
documents prepared by MSHA employees that discuss these issues or
contain recommendations about these issues are also protected.
Factual information contained in these documents may not be
protected .
2. Predecisional discussions and recommendations made to
supervisors concerning whether or not the citations that are the
subject of these .proceedings should be issued are protected by
the deliberative process privilege. Predecisional documents
prepared by MSHA employees that discuss whether the citations
should be issued or make recommendations concerning the citations
are also protected. Factual information contained in these
documents may not be protected .
3 . Instructions given to Inspector Drussel by MSHA super~
visors with regard to the citations at issue, including instructions as to how the cited standards should be interpreted, are
not pr9tected by the privilege . Reasons given to Inspector
Drussel by his supervisors to justify the citations are not
protected by the privilege. If Inspector Drussel relied upon
MSHA policies or practices orally communicated to him in interpreting the standards when issuing the citations, these communications would generally not be protected by the privileg.e .
4 . Documents relied upon by Inspector Drussel in issuing
the citations and documents relied upon by his supervisors in
instructing or advising him to issue the citations may not be
protected by the privilege . Factual information is generally not
protected and the specific portions of a document relied upon in
issuing the citations may not be protected. General discussions
and recommendations concerning mercury contamination that are
predecisional in nature may be protected.
Conclusion and Order
The parties, particularly Newmont, must understand that the
issue in these cases is whether Newmont violated the cited
standards as set forth in the citations . My function is not to

1 538

review the wisdom of MSHA policies, practices, and decisions, but
rather is to determine de novo whether the citations and the
allegations contained therein should be upheld based on the
evidence presented at the hearing. The Secretary bears the
burden of proof. It must also be understood that "parties may
obtain discovery of any relevant, nonprivileged matter that is
admissible evidence or appears likely to lead to the. discovery of
admissible evidence . " 29 C.F.R. S 2700.56(b). At the hearing,
on the other hand, only relevant evidence that is not unduly
repetitious or cumulative is admissible. 29 C.F.R. § 2700 . 63(a).
Much of the information obtained by Newmont about MSHA policies,
practices or decisions may not be relevant and, therefore, may
not be admissible at the hearing.
Accordingly, IT IS ORDERED that the parties comply with the
principles set forth in this order in posing discovery requests
and in providing answers to these discovery requests. The
deliberative process privilege shall be applied as described in
this order. If counsel for the Secretary contends that a
document or a portion of a document is protec ed b~ privi lege, counsel shall send a
me for y · n,,camer~ review . 3
/

Richard W. Manning
Administrative Law Judge
Distribution:
Jeanne M. Colby, Esq., Office of the Sol icitor, U.S. Department
of Labor, 71 Stevenson St., suite 1110, San Francisco, CA 941052999
Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
RWM

3

The parties have filed numerous pretrial motions in these
cases, including motions to compel, motions for protective orders,
a motion to dismiss, and a motion alleging that the Secretary has
waived his right to assert evidentiary privileges. I will enter my
ruling on these motions in one or more orders, as soon as possible.

1539

u. S. Govemment Printing Office 1996 405-710/&3377

1540