MAY 2004

COMMISSION ORDERS
05-11-2004 Giant Cement Company
05-18-2004 Munn Road Sand & Gravel
05-19-2004 Arnold Crushed Stone
05-21-2004 Beco Construction Company
05-25-2004 Youngquist Brothers Rock
05-27-2004 John R. Sand and Gravel

SE 2004-108-M
LAKE 2003-86-M
CENT 2002-242-M
WEST 2004-149-M
SE 2004-111-M
LAKE 2004-63-M

Pg.379
Pg.383
Pg. 38'8
Pg.392
Pg. 399
Pg. 403

WEST 2004-86-M
WEST 2004-28 -DM
CENT 2004-35-R

Pg.409
Pg. 414
Pg.427

WEST 2003-402-DM
WEST 2001-204-RM

Pg. 443
Pg. 448

ADMINISTRATIVE LAW JUDGE DECISIONS
05-21-2004 Calmat Company of Arizona
05-24-2004 John D. Tombom v. Premier Chemicals I.LC.
05-25-2004 San Juan Coal Company

ADMINISTRATIVE LAW JUDGE ORDERS
05-13-2004 Sec. Labor on behalf of Robert Kinnaman v.
3 M Corporation
05-18-2004 Becon Construction Inc.

i

MAY 2004

No case was filed in which Review was granted during the month of May:

No case was filed in which Review was denied during the month of May:

ii

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

May 11, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2004-108-M
A.C. No. 38-00007-17075

v.
GIANT CEMENT COMPANY

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, ComrrUssioners
ORDER
BY THE CO:MMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On March 24, 2004, the Commission received from Giant
Cement Company ("Giant Cement") a motion filed by counsel to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In its motion, Giant Cement states that on or about November 14, 2003, it was issued a
pair of citations (Citation Nos. 6111285 and 6111286). Mot. at 1; Declaration of Lloyd C.
("Buddy") Hartzog, Jr. ("Declaration") at 1. Giant Cement also states that it timely contested
the citations on November 17, 2003, and that the contest proceedings were assigned to an
administrative law judge. Mot. at 1; Dec. at l. Giant Cement further states that on or about
January 8, 2004, while the contest proceedings were pending, the Secretary proposed a penalty
for Citation No. 611286. Mot. at 2; Dec. at 2. The operator asserts that, mistakenly believing
that the pendency of the contest proceedings obviated the need to respond to the proposed
penalty; and without consulting counsel, it fai led to challenge the proposed penalty assessment.
379

Mot. at 2; Dec. at 2. 1 Giant Cement contends that on or about March 11, 2004, counsel for the
Secretary advised Giant Cement's attorneys that the Secretary had agreed to vacate Citation No.
6111286. Mot. at 2; Dec. at 2. It further contends that even before it learned that the Secretary
would vacate the citation, it intended to contest the penalty and ask the judge to consolidate the
penalty proceeding with the contest proceedings. Dec. at 2. The Secretary states that she does
not oppose Giant Cement's request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

1

Giant Cement states that it realized its mistake before it received the penalty proposal
for Citation No. 6111285, and that shortly after it arrived, on or about March 2, 2004, it advised
MSHA of its intent to contest it. Dec. at 2.
380

Having reviewed Giant Cement's motion, in the interests of justice, we remand thiS:
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
for Giant Cement's failure to timely contest the penalty proposal and whether relief from the
final order should be granted. If it is determined that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

. 381

Distribution
Willa B. Perlmutter, Esq.
Patton Boggs, I.l..P
2550 M Street, N.W.
Washington, D.C. 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Dana L. Ferguson, Esq.
Office of the Solicitor
U.S. Department of Labor
61 Forsyth Street, S.W., Room 7T10
Atlanta, GA 30303
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

382

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW J ERSEY AVENUE, NW
SUITE 9500

May 18, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. LAKE 2003-86-M
A.C. No. 33-04220-05519

MUNN ROAD SAND & GRAVEL

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners

ORDER
BY: Duffy, Chairman; Beatty, Suboleski, and Young, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On February 24, 2003, the Commission received a request
made by Munn Road Sand & Gravel ("Munn Road") to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S .C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The proposed penalty assessment that is the subject of this proceeding (A.C. No. 3304220-05519) was issued on May 17, 2002. The assessment covers 11 citations issued to Munn
Road by the Department of Labor's Mine Safety and Health Administration ("MSHA") in early
April 2002. MSHA proposed penalties totaling $860. Munn Road's request to reopen, originally
made in a letter to MSHA that was forwarded to the Commission, was prompted by a
delinquency letter from MSHA. In its request to reopen Munn Road states that it "did not
receive any notice or info prior to" the proposed assessment.

383

The Secretary of Labor filed a response in opposition.to Munn Road's request for relief.
The Secretary contends that reopening is not justified by the circumstances, given the evidence
that Munn Road did not claim the certified letter containing the proposed assessment when it was
delivered to a post office box that MSHA verified to be Munn Road's correct address. Sec.
Resp., Attachment A and Deel. of Charlene Lyles. 1
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). However, a party which
refuses to accept certified mail from MSHA will most likely be unable to establish good cause.
Cf Michigan Expediting Serv., 282 NLRB 210 n.6 (1986) (holding that party's failure or refusal
to accept certified mail could not be used to defeat purpose of National Labor Relations Act).

1

The Secretary subsequently reported to the Commission via letter dated March 31,
2003, that it had attempted to serve its response on Munn Road by certified letter but that it went
unclaimed as well after three unsuccessful attempts at delivery.
384

Having reviewed Munn Road's request, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge. It is appropriate that an administrative law judge address
the issues presented. in this case, particularly the dispute raised in the Secretary's response
regarding the delivery and receipt of the proposed assessment, and then determine whether good
cause exists for Munn Road's failure to timely contest the penalty proposal and whether relief
from the final order should be granted. If it is determined that such relief is appropriate, this case
shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700.

385

Commissioner Jordan, dissenting:
I would deny the operator's request for relief from the final order. The Secretary has
offered evidence that Munn did not claim the certified letter with the proposed penalty
assessment when it was delivered to a post office box that was verified as Munn Road's correct
address. Sec. Resp. at 1-2; Attach A and Deel. of Charlene Lyles at 1-2. In fact, the Secretary
states that the Postal Service made three attempts to deliver the certified letter (on May 22, 28
and June 7, 2002), and she has submitted the envelope on which the Postal Service documented
these attempts. Sec. Resp. at 2; Attach. Munn Road did not rebut these allegations (although
admittedly, this could well be because the Secretary's opposition containing these assertions,
served on Munn Road by certified letter, also went unclaimed after three unsuccessful attempts at
delivery. Letter to Richard L. Balcer from Jack Powasnik, March 31, 2003).
The law is clear that when the evidence supports only one conclusion, a remand to the
judge serves no purpose. See Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993)
(affirming judge's finding of no unwarrantable failure, despite judge's error in not addressing
some of the Secretary's evidence). Here, the record compels the conclusion that Munn Road
refused to accept certified mail from MSHA regarding the penalty assessment. Accordingly, I
would deny the requested relief.

386

Distribution
Bob Russell, Treasurer
Munn Road Sand & Gravel
P.O. Box 375
Newbury, OH 44065
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

387

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

May 19, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2002-242-M
A.C. No. 41-03882-05515

V.

ARNOLD CRUSHED STONE

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On January 17, 2003, the Commission received from Arnold
Crushed Stone ("Arnold") correspondence which we construe as a request to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 21, 2001, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 41-03882-05515) to
Arnold's mine in Blum, Texas. The record indicates that Arnold failed to timely submit a
request for hearing to contest the proposed penalty assessment for the three citations in question.
Pursuant to section 105(a) of the Mine Act, the penalty proposal became a final order of the
Commission thirty days after Arnold received it. On May 24, 2002, the Commission received
from Arnold correspondence which it construed as a request to reopen the final order. That
request did not explain the basis for reopening the matter. On July 10, 2002, the Commission
issued an order remanding the matter to an administrative law judge to determine whether

388

Arnold had met the criteria for obtaining relief from a final section 105(a) order. 24 FMSHRC
635.
On July 18, 2002, Chief Administrative Law Judge David Barbour issued an order
directing Arnold to submit information within 20 days providing "a thorough explanation of why
it failed to timely file the notice of contest." On October 24, 2002, the judge issued a show
cause order directing Arnold to submit information within 20 days explaining its failure to timely
file a notice of contest ono show cause for its failure to submit the information. The order
provided that if Arnold failed to comply with the order, "the penalty assessment will not be
reopened and Arnold will be required to pay the proposed penalty assessment in full" (emphasis
in original). Arnold did not respond to either of these two orders.
On December 12, 2002, the judge issued a second show cause order which was similar to
the prior order. On December 19, 2002, Arnold faxed to the Commission's docket office three
letters which briefly disputed the substantive basis for each of the three citations involved. Mot.,
Attachment. None of the three letters addressed the show cause orders or otherwise explained
why Arnold had failed to timely file a notice of contest regarding the proposed penalty
assessment.
On December 24, 2002, the judge issued an order which (1) denied Arnold's May 24,
2002, request to reopen the penalty assessment, (2) ordered Arnold to pay the penalty assessment
of $3,412 within 30 days, and (3) dismissed the case. 24 FMSHRC 1070. The order stated that
the record showed Arnold had received the three orders that had previously been issued and that
the letters faxed by Arnold did not respond to the show cause orders' requirement that Arnold
explain why it did not timely file a notice of contest.
On January 17, 2003, the Commission received a letter from Mike Arnold, company
president, dated January 14, 2003, in which the company requested that the Commission reopen
this matter. Mot. The company stated that after receiving the original citations in this matter it
had contacted an individual in the regional office of the Secretary and requested a conference.
Id. The company further stated that it understood that the regional office would take some action
to address the citations in question. Id. According to the letter, the company did not receive
anything further until it received the order of December 24, 2002, denying its request to reopen.
Id. The letter provided no explanation of why Arnold had not initially filed a notice of contest
concerning the proposed penalty assessment, why Arnold had not responded to the judge's order
to provide additional information, or why Arnold had not responded to the judge's two show
cause orders, notwithstanding clear record evidence that Arnold had received all the orders.
Having reviewed Arnold's most recent request and the record in this matter, we hereby
deny the request for relief from the final order of December 24, 2002. By its order of July 10,
2002, the Commission remanded the matter to an administrative law judge so that Arnold would
have the opportunity to explain why this matter should be reopened. It was incumbent upon
Arnold to comply with the judge's subsequent, clearly worded orders and to provide a
389

justification for reopening. However, Arnold made no attempt to comply with the judge's orders
or to otheiwise explain in a timely fashion why it believed that it was unnecessary to do so. We
therefore conclude that there is no basis for reopening the judge's December 24, 2002, final order
dismissing this case.

~L~--

M

390

L~an, Commj/10ner

Distribution
Mike Arnold
Arnold Crushed Stone
P.O. Box 632
Blum, TX 76627
W. Christian Schumann;Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

391

FEDERAL MINE SAFETY AND HEALTH R~VI EW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

May 21, 2004
SECRETARY OF LABOR,
MINE SAFETY AN!) HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2004-149-M
A.C. No. 10-01827-05516
Docket No. WEST 2004-150-M
A.C. No. 10~0 1 827-05518
Docket No. WEST 2004-151-M
A.C. No. 10-01827-05519
Docket No. WEST 2004-152-M
A.C. No. 10-01907-14547

v.

Docket No. WEST 2004-153-M
A.C. No. 10-01907-00002819
Docket No. WEST 2004-154-M
A.C. No. 10-01907-12100
Docket No. WEST 2004-155-M
A.C. No. 10-02031-05501

BECO CONSTRUCTION COMPANY

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE CO:rvIMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On January 22, 2004, the Commission received from Beco
Construction Company ("Beco") a request made by counsel to reopen penalty assessments that
had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On February 3, 2004, the Secretary of Labor filed a Response to Request to
Reopen Penalty Assessments. On February 23, 2004, Beco filed a reply to the Secretary's
·response.
392

Under section 105(a) of the Mine Act, an operator who wishes to conte~t a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In its request, Beco seeks to reopen ten proposed penalty assessments for which it failed
to timely file requests for hearing ("green cards"). Mot. at 1-3. Two proposed assessments, in
Docket Nos. WEST 2003-104-M and WEST 2003-105-M, are the subject of an earlier request to
reopen filed by Beco, which the Commission has considered and remanded to the Chief
Administrative Law Judge for further proceedings. See Beco Constr. Co., 26 FMSHRC 171
(Mar. 2004). Another assessment, in Docket No. WEST 2004-106-M, is still pending before a
Commission Administrative Law Judge and thus is not ripe for review. Beco has moved to
withdraw its request to reopen a fourth assessment, Docket No. WEST 2004-153-M, on the basis
that it paid the underlying proposed assessment. B. Reply at 2. Thus, pending before the
Commission in this request to reopen are a motion to withdraw and a request to reopen six
proposed assessments that became final orders of the Commission pursuant to section 105(a)
thirty days after Beco received them. 1
A.

Motion to Withdraw Docket No. WEST 2004-153-M

In Beco's reply to the Secretary's response, Beco states: ''The Respondent hereby
withdraws its request to open this assessment [A.C. No. 10-01907-00002819]2 inasmuch as it has
been paid." B. Reply at 2. Commission Procedural Rule 11 states, "[a] party may withdraw a
pleading at any stage of a proceeding with the approval of the . . . Commission." 29 C.F.R.
§ 2700.11. Under Rule 11, we construe Beco's withdrawal of its request as a motion to
withdraw. The Secretary has not stated a position on Beco's motion to withdraw.
Upon consideration of Beco's motion to withdraw, it is granted.
B.

Docket Nos. WEST 2004- 150-M, WEST 2004-151-M, WEST 2004-152-M, and
WEST 2004-154-M

Beco requests the Commission to reopen two proposed assessments, A.C. Nos. 10-0182705518 (WEST 2004-150-M) and 10-01907-14547 (WEST 2004-152-M) (Mot. at 2), neither of

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate the dockets before us, WEST 2004-149-M, WEST 2004-150-M, WEST
2004-151-M, WEST 2004-152-M, WEST 2004-153-M, WEST 2004-154-M, and WEST 2004155-M, all captioned Beco Construction Company and all involving issues similar to those
addressed in this order. 29 C.F.R. § 2700.12.
2

"A.C. No." is the Assessment Control Number, which MSHA assigns to a proposed
penalty assessment.
393

which the Secretary opposes (S. Response at 4). With respec~ to A.C. No. 10-01827-05518,
Beco alleges that it contested the proposed assessment, but misread the A.C. number and put the
wrong number on its contest. Mot. at 2. When the Department of Labor's Mine Safety and
Health Administration ("MSHA") notified Beco of the delinquent payment status of this
assessment, Beco requested to proceed with its contest, but states that it now understands that it
should have filed a request to reopen. Id. With respect to A.C. No. 10-01907-14547, Beco
alleges that it filed a timely contest on December 19, 2003. Mot. at 2. Attached to Beco's
request are copies of correspondence with MSHA and the proposed penalty assessments
referenced in its request. Attachs.
Beco also states that it never received the proposed assessments for A.C. Nos.
10-01827-05519 (WEST 2004-151-M) and 10-01907-12100 (WEST 2004-154-M), and thus,
failed to timely file hearing requests. Mot. at 2-3. The Secretary asserts, however, that she has
proof that the proposed assessments were delivered and that Beco received them. S. Response at
3. She states that she needs further explanation from Beco before she can state her position on its
request to reopen these proposed assessments. Id. Attached to her response are both proposed
assessments and signed return receipt verification cards for each assessment. Attachs. D and E.
Beco's counsel replies that Beco never gave its counsel the two proposed assessments at
issue, that he is located across the state approximately 300 miles away from Beco, and that he has
tried to establish a system for forwarding proposed assessments for review and discussion, which
sometimes fails. B. Reply at 3-4. Beco further states that because counsel never received the
assessments, no decision was ever made whether to contest them. Id. Beco requests a hearing on
the proposed assessments. Id.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond to a penalty petition, the case may be reopened and appropriate proceedings on
the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Beco's request, in the interests of justice, we remand these four
proposed assessments to the Chief Administrative Law Judge for a determination of whether
good cause exists for Beco's failure to timely contest the penalty proposals and whether relief
from the final orders should be granted. If it is determined that such relief is appropriate, this
case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700.

394

C.

Docket Nos. WEST 2004-149-M and WEST 2004-155-M

MSHA issued proposed assessment A.C. No. 10-01827-05516 (WEST 2004-149-M) to
Beco on June 21, 2001. S. Response at 2-3 & n.4. Based on the Secretary's submissions, Beco
received the proposed assessment on June 26, 2001, and it became a final order on July 30, 2001.
Id. Beco's request to reopen was filed on January 22, 2004. Beco explains that it failed to
provide its counsel this proposed assessment. Mot. at 2; B. Reply at 2. Beco also states that its
counsel is located across· the state, and that they have tried to establish a system for forwarding
proposed assessments for review and discussion, which sometimes fails. B. Reply at 2-3. Beco
explains that because counsel never received this assessment, no decision was ever made whether
to contest it. Id. at 3. Beco requests a hearing. Id.
MSHA issued proposed assessment A.C. No. 10-02031-05501(WEST2004-155-M) to
Beco on September 5, 2002. S. Response at 1-2 & n.2. Based on the Secretary's submissions,
Beco received the proposed assessment in September 2002, and it became a final order on
October 20, 2002. Id. Beco alleges that it sent a notice of contest for this proposed assessment at
the same time it contested two other unrelated proposed assessments. Mot. at l; B. Reply at 2.
Attached to its request is a copy of the late-filed notice of contest dated November 11, 2002.
Attach. Beco states that it did not know that its contest was untimely because counsel did not
receive the proposed assessment until November 20, 2002. Mot. at 1-2; B. Reply at 2. Beco
asserts that if it had known its contest was untimely, it would have requested the Commission to
reopen this assessment as it did with the other two unrelated proposed assessments (see Beco, 26
FMSHRC at 171-72). Mot. at l; B. Reply at 2.
The Secretary opposes reopening both proposed assessments because Beco's requests
were filed approximately two and one-half years and 15 months, respectively, after the
assessments became final. S. Response at 1-3. The Secretary attached to her response both
proposed assessments, signed return receipt verification cards for each assessment, and MSHA's
delinquent payment notice for A.C. No. 10-02031-05501 dated November 20, 2002. Attach.
Beco has requested to reopen these two proposed assessments more than one year after
the assessments became final orders. In Lakeview Rock Products, the Commission rejected an
operator's request to reopen a proposed penalty assessment that became a final order more than
one year prior to its request. 19 FMSHRC 26, 28-29 (Jan. 1997). The Commission noted that a
"Rule 60(b) motion 'shall be made within a reasonable time, and for reasons (1), (2), and (3) not
more than one year after the judgment, order, or proceeding was entered or taken.' ... This oneyear time limit is an outside time limit for motions requesting relief under subsections (1)
through (3), and may not be circumvented by utilization of subsections (4) through (6) of Rule
60(b), which are subject only to a reasonable time limit, when the real reason for relief falls

395

within subsections (1) through (3)." 3 Id. at 28 (citation omitte~). See also Klapport v. United
States, 335 U.S. 601, 613 (1949) ("one year limitation would control if no more than 'neglect'
was disclosed by the petition"); Newball v. Offshore Logistics lnt'l, 803 F.2d 821, 827 (5th Cir.
1986) ('"where the reason for relief is embraced in Clause (b)(l), the one year limitation cannot
be circumvented by use of Clause ... (b)(6)'") (citation omitted).
Beco's requests to reopen the proposed assessments under Rule 60(b)(l) are subject to the
one-year time bar and are, therefore, untimely. See Lakeview, 19 FMSHRC at 28-29. Based on
the foregoing, we deny Beco' s motion for relief from the final orders in Docket Nos. WEST
2004-149-M and WEST 2004-155-M.

3

Rule 60(b) states, in part:
[T]he court may relieve a party ... from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application; or (6) any other reason justifying relief from
the operation of the judgment.

Fed. R. Civ. P. 60(b).
396

Accordingly, we grant Beco's motion to withdraw its request for relief in Docket No.
WEST 2004-153-M and hereby dismiss that docket; we deny Beco's request to reopen the
penalty assessments in Docket Nos. WEST 2004-149-M and WEST 2004-155-M; and we
remand Docket Nos. WEST 2004-150-M, WEST 2004-151-M, WEST 2004-152-M, and WEST
2004-154-M for further proceedings as appropriate.

R~ertH'.Beatty, Jr., Commissioner

397

Distribution:
Menily Munther, Esq.
Penland, Munther, Goodrum
1161 W. River Street
P.O. Box 199
Boise, ID 83701
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22203
Myra James
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
1100 Wilson Boulevard, 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001

398

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

May25, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2004-111-M
A.C. No. 08-01203-18680

v.
YOUNGQUIST BROTHERS ROCK

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On March 29, 2004, the Commission received from
Youngquist Brothers Rock ("Youngquist") correspondence that we construe as a motion to
reopen a penalty assessment that had become a final order of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S .C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On February 10, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Youngquist a proposed penalty assessment (A.C. No. 08-01203-18680). In
its motion, Youngquist explains that it was not aware of the proposed assessment until March 15,
2004, when it received from MSHA a notice of an outstanding balance for the proposed
assessment. Mot. Youngquist states that it contacted MSHA's Civil Penalty Compliance Office
to inquire about the proposed assessment, and on March 17, 2004, was faxed a copy of the
proposed assessment. Id. Youngquist also learned from MSHA that the original certified letter
from MSHA, containing the proposed assessment, was postmarked February 12, 2004, and was
returned to MSHA unclaimed. Id. Youngquist further states that it contacted its local post office
399

and learned that there was staff turnover, which may have resulted in confusion about road
addresses and caused delivery problems during the time that the proposed assessment was sent.
Id. The Secretary states that she does not oppose Youngquist' s request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

400

Having reviewed Youngquist' s motion, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether good cause exists for
Youngquist' s failure to timely contest the penalty proposal and whether relief from the final
order should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

. "'A
Robert H. Beatty, Jr., Commissioner

401

Distribution
Joel Gerhard
Manager & Human Resources
Youngquist Brothers Rock
15401 Alico Road
Fort Myers, FL 33913
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22203
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

402

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

May27, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2004-63-M
A.C. No. 20-02957-05509
Docket No. LAKE 2004-64-M
A.C. No. 20-02957-05511
Docket No. LAKE 2004-65-M
A.C. No. 20-02957-05512

v.

Docket No. LAKE 2004-66-M
A.C. No. 20-02957-05513

JOHN R. SAND AND ORAVEL

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). 1 On March 29, 2004, the Commission received from John R.
Sand and Gravel ("JR") correspondence that we construe as a motion to reopen four penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers LAKE 2004-63-M, LAKE 2004-64-M, LAKE 2004-65-M, and
LAKE 2004-66-M, all captioned John R. Sand and Gravel and all involving similar issues.
29 C.F.R. § 2700.12.
403

The Department of Labor's Mine Safety and Health Administration ("MSHA") issued to
JR four proposed penalty assessments. In its motion, JR explains that on January 26, 2004, it
received notices of past due penalties. Mot. JR further states that it requested hearings on
certain citations and is still awaiting the results of those hearings. Id. JR asserts that the
penalties were subsequently issued, but the paperwork was misfiled, and was not found until
after it received the notices of past due penalties. Id. JR explains that it called MSHA after
receiving the notice because the proposed penalties "seem very high in lieu of the circumstances
leading to the citations:" Id. JR maintains that it is contesting several citations contained in the
proposed penalty assessments it seeks to reopen, and once it receives the results of the hearings
and reviews the facts and findings, it can then address the remaining issues. Id. JR requests
these assessments be reopened so it can have a hearing. Id. Attached to its request are copies of
the proposed penalty assessments and underlying citations it wishes to contest. Attachs.
The Secretary opposes JR's request to reopen the proposed assessment in Docket No.
LAKE 2004-63-M because it was filed almost one year and seven months after the assessment
became a final Commission order.2 S. Resp. at 1. She notes that contrary to JR's assertions,
there are no active hearings or conferences on any of these cases, nor have there been since the
penalties were issued.3 Attached to the Secretary's response is a copy of MSHA' s delinquent
payment notice for A.C. No. 20-02957-05509. Attach A.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
JR's request to reopen the proposed assessment in Docket No. LAKE 2004-63-M was
filed more than one year after the assessment became a final order. In Lakeview Rock Products,
the Commission rejected an operator's request to reopen a proposed penalty assessment that
became a final order more than one year before its request was filed. 19 FMSHRC 26, 28-29

2

Based on the Secretary's submission, proposed penalty assessment A.C. No. 20-0295705509 became a final Commission order on July 31, 2002; JR's request to reopen was filed on
February 27, 2004.
3

The Commission has no records of any contests of the citations involved in these
proceedings.
404

(Jan. 1997). The Commission noted that a "Rule 60(b) motion. 'shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment,
order, or proceeding was entered or taken.' . . . This one-year time limit is an outside time limit
for motions requesting relief under subsections (1) through (3), and may not be circumvented by
utilization of subsections (4) through (6) of Rule 60(b), which are subject only to a reasonable
time limit, when the real reason for relief falls within subsections (1) through (3)." 4 Id. at 28
(citation omitted). See also Klapport v. United States, 335 U.S. 601, 613 (1949) ("one year
limitation would control if no more than 'neglect' was disclosed by the petition"); Newball v.
Offshore Logistics lnt'l, 803 F.2d 821, 827 (5th Cir. 1986) ("'where the reason for relief is
embraced in Clause (b)(l), the one year limitation cannot be circumvented by use of Clause . . .
(b)(6)"') (citation omitted).
JR's request to reopen the proposed assessment in Docket No. LAKE 2004-63-M under
Rule 60(b)(l) is subject to the one-year time bar and is, therefore, untimely. See Lakeview, 19
FMSHRC at 28-29; Thomas Hale, 17 FMSHRC 1815, 1816-17 (Nov. 1995). Based on the
foregoing, we deny JR's motion for relief from the final order in Docket No. LAKE 2004-63-M.
In the interests of justice, we remand Docket Nos. LAKE 2004-64-M, LAKE 2004-65-M,
and LAKE 2004-66-M to the Chief Administrative Law Judge for a determination of whether
good cause exists for JR's failure to timely contest the penalty proposal and whether relief from
the final order should be granted. If it is determined that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

4

Rule 60(b) states, in part:
[T]he court may relieve a party ... from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application; or (6) any other reason justifying relief from
the operation of the judgment.

Fed. R. Civ. P. 60(b).
405

Accordingly, we deny JR's request to reopen the penal~y assessment in Docket No.
LAKE 2004-63-M, and remand Docket Nos. LAKE 2004-64-M, LAKE 2004-65-M, and LAKE
2004-66-M for further proceedings as appropriate.

~~~

MichaelF.

ffy, Chairman

St~

406

Distribution
Edward Evatz, President
John R. Sand & Gravel
36401 Van Dyke Avenue
Sterling Heights, MI 48312
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

407

408

ADMINISTRATIVE LAW JUDGE DEOSIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

May 21, 2004
SECRETARY OF LABOR,
iv1INE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

CIVIL PENALTY PROCEEDING
Docket No. WEST 2004-86-M
A. C. No. 02-02166-11087

P~titioner

v.
CALMAT COMPANY OF ARIZONA,
Respondent

West Plant
DECISION

Appearances:

Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department of Labor,
San Francisco, California, on behalf the Petitioner;
Rochelle R. Dunham, Esq., O' Melveney & Myers, LLP, Los Angeles,
California, on behalf of the Respondent.

Before:

Judge Melick

This case is before me upon a 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. § 801
(1994), et seq., the "Mine Act," charging the Calmat Company of Arizona (Calmat) in two
citations with violations of mandatory standards and proposing civil penalties of $2,975.00, for
the alleged violations. The pivotal issue before me is whether the Department of Labor's Mine
Safety and Health Administration had jurisdiction under the Mine Act to issue the citations at
bar. 1 Calmat maintains that the citations were issued in an area of its facility that was explicitly
excluded from such jurisdiction by the interagency agreement between the Department of
Labor's Occupational Safety and Health Administration (OSHA) and the Department's Mine
Safety and Health Administration (MSHA), i.e., the "Interagency Agreement."
The starting point for an analysis of Mine Act jurisdiction is the definition of the term
"coal or other mine," in Section 3(h)(l). A coal or other mine is there defined, in relevant part,
as "(A) an area of land from which minerals are extracted .. ., (B) private ways and roads
appurtenant to such area, and (C) lands, . . . structures, facilities, equipment, machines, tools, or
other property ... used in, or to be used in ... the work of extracting minerals from their natural
deposits, ... or used in ... the milling of such minerals . .. " 30 U.S.C. § 802(h)(l). The Senate
Committee that drafted this definition stated its intention that "what is considered to be a mine

Calmat has agreed to pay the penalties proposed by the Secretary should
jurisdiction be found under the Mine Act.
409

and to be regulated under this Act be given the broadest possi"!:>le interpretation, and ... that
doubts be resolved in favor of inclusion of a facility within the coverage of the Act." S. Rep. No.
181, 95m Cong., 151 ~ess.14 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 9th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 602 (1978)("Legis. Hist"); See also Donovan v. Carolina Stalite Co., 734
F.2d 1547 (D.C. Cir. 1984).
The Secretary argues that the cited conditions fall within Mine Act jurisdiction because
they involved a haul truck that had been "used in" extracting minerals from their natural deposits
and that the violations took place on "private ways and roads appurtenant to such area." Indeed,
Respondent acknowledges that the citations would have been within the Secretary's jurisdiction
under the Mine Act, but for its claimed exemption under the Interagency Agreement for concrete
batch plants (Tr. 14-15).
There is no dispute that the Interagency Agreement, executed pursuant to the authority of
Section 3(h)(l) of the Mine Act, places concrete batch plants under OSHA's exclusive
jurisdiction whether or not they would othexwise be considered to be part of a "mine." The
agreement provides that OSHA's authority over concrete ready-mix and batch plants,
"commences after (the] arrival of sand and gravel or aggregate at the plant stockpile." The
precise question to be resolved in this case then, is whether the violations were cited within or
outside of the concrete ready-mix batch plant at the Calmat facility on August 11, 2003.
The Calmat facilities are clearly depicted in the to-scale photographic map in evidence as
Exhibit R-1. A not-to-scale reduced copy of that map was admitted as Exhibit P-1 and is
attached hereto as an appendix. The perimeter of the facility is defined with a fence. There are
two gated entrances through which a variety of vehicles must pass to enter or exit. Mine Act
jurisdiction in the areas within the facility involving the extraction of sand and stone (area E-3 on
Exhibit R-1) and the processing and storage of such material in designated areas (E-2 and E-3 on
Exhibit R-1) is undisputed. It is also undisputed that certain areas are excluded from Mine Act
jurisdiction by the Interagency Agreement. The Secretary acknowledges that these excluded
areas include the concrete batch plant (area "B" on Exhibit R-1) and the specific aggregate
stockpiles associated with the concrete batch plant (areas P Y2 , P 3/8, P 1 Yz , PL and PS on
Exhibit R-1) (Tr. 148).2
The subject citations were issued on August 11, 2003, for the alleged failure to provide
safe access for a truck driver who had climbed to a position 14 feet above ground on top of a
haul truck and the alleged failure to provide specific on-site training for that driver. The driver
was standing on a Caterpillar Model 773 haul truck positioned on a lowboy trailer. (See Exhibit
P-3). A second Caterpillar haul truck was also parked nearby. These haul trucks had been used

2

It is undisputed however that the stockpile identified as "K" on Exhibits R-1 and
P-1 is depicted as larger and closer to the location of the cited violations (position "H'') than was
extant at the time of those alleged violations.
410

in the past to haul mine product (sand and rock) within the facility but had not been recently
used. The trucks in fact had recently been sold and were being 1oaded onto the lowboy for
removal from the facility. They had been driven to this site by a Calmat mechanic who was also
supervising their rerhoval. Shortly before the time the citation was issued the tires had been
removed from one truck by a tire contractor to facilitate its transport on the lowboy. The second
truck was about to be likewise handled.
The alleged violations too~ place on a flat area (identified on Exhibits R-1 and P-1 as
"H'') used to park the cited vehicles and located adjacent to the dirt roadway (identified by yellow
marker on Exhibits R-1 and P-1) leading from the 515t street entrance in the facility. This
roadway was also used by various vehicles including those miners (as defined in the Mine Act)
corning to and leaving work, trucks carrying mine personnel and trucks used to maintain
equipment under admitted Mine Act jurisdiction. In addition, haul trucks for outside contractors
travel this roadway carrying sand and stone from the area within admitted Mine Act jurisdiction.
Within this framework of evidence it is clear that the area in which the violations were
cited was a private way or road appurtenant to "an area of land from which minerals are
extracted." Therefore, unless specifically excluded by the Interagency Agreement as a concrete
batch plant the cited area was within Mine Act jurisdiction. Indeed, as previously noted, Calmat
acknowledged this at hearing. (Tr. 14-15).
The site of the alleged violations was a significant distance (about 400 feet) from the
concrete batch plant but was also located near an aggregate stockpile (Area "K" on Exhibit R-1)
used to supply the concrete batch plant - - a stockpile which the Secretary acknowledges was
outside Mine Act jurisdiction. However, since the area of Calmat property on which the lowboy
and haul trucks were parked and where the violations were cited was not within that specific
excluded area, of the mine, i.e., the concrete batch plant or its stockpiles, the cited area was
within Mine Act jurisdiction. Accordingly the citations herein were. properly issued. I further
find that the Secretary's proposed penalties, which Calmat has agreeq to pay should Mine Act
jurisdiction be found, are appropriate considering the criteria under Section l lO(i) of the Act.

ORDER
Citation Nos. 6293819 and 6293820 are hereby affirmed and the Calmat Company of
Arizona is hereby ordered to pay civil penalties of $1,750.00 and $1,225.00 respectively for the
violations charged therein within 40 days of the date of this decision.

411

(Distribution by Certified Mail)
Jan M. Coplick, Esq., Office of the Solicitor, U.S . Dept. of Labor, 71 Stevenson St., Suite 1110,
San Francisco, CA 94105
Rochelle R. Dunham, Esq., Scott H. Dunham, Esq., O'Melveny & Myers, LLP, 400 South Hope
St., Los Angeles, CA 90071
\mca

412

Exhibit R-1 - photographic map

Pl
A
413

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303·844-35n/FAX 303·844·5268

May24, 2004
JOHN D. TORNBOM,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 2004-28-DM
WEST MD 2003-08

v.

Mine I.D. 26-00002
Premier Chemicals

PREMIER CHEMICALS, LLC,
Respondent

DECISION
Appearances:

John D. Tombom, Hawthorne, Nevada, prose;
Steven S. Becker, Esq., Premier Chemicals, LLC, King of Prussia,
Pennsylvania, for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by John D. Tornbom
against Premier Chemicals, LLC, ("Premier"), under section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). Mr. Tornbom alleges
that Premier terminated him from his employment with the company because of protected
activities he engaged in while an employee of Premier. An evidentiary hearing was held in
Fallon, Nevada.

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINDINGS OF FACT
Premier operates a surface mine and plant near Gabbs, Nevada. Material containing
magnesite is mined, crushed, milled, and then processed at this facility. The end product has
various applications including use in animal feed and water treatment facilities. Mr. Tornbom
was hired at the plant on February 25, 2000, and was terminated on May 15, 2003.
Tornbom contends that starting in February 2003, Jim Loeppky, the maintenance
superintendent, and other management officials decided to separate him from his employment
because he was raising too many safety issues. On February 2, 2003, Larry Ratta injured his eye
at the plant. At that time, Tornbom was the fire chief of the Gabbs Volunteer Fire Department.
Ratta was brought to him and, after he examined Ratta, Tornbom recommended that he go to the
hospital. Tornbom rode along with him in the ambulance to the hospital in Fallon, Nevada. The
414

following day, Bobby Adamson, Tornbom's supervisor who js a leadman on the maintenance
crew,1 talked to Tornbom in the lunchroom, asked why he had called the Care Flight helicopter,
and complained that it cost the company money. Tornbom denied that he called for the
helicopter. Tornbom believes that someone at the hospital ordered that the helicopter be standing
by in case it was needed. It is about 80 miles to Fallon from Gabbs.
Sometime later in February or March, Tornbom discovered about 85 drums of acidic
chemicals at the plant and he reported it to the Nevada fire marshal's office. A few days later,
Loeppky called him into his office and asked him why he was "causing all these problems." (Tr.
10). Loeppky accused Tornbom of calling state inspectors on the Larry Ratta injury. Tornbom
denied that he did. Loeppky said that his call to the fire marshal's office was causing problems.
He also told Tornbom that everyone at the upper shop was having to work harder because of his
call and that he was not getting along very well with others at the plant. (Ex. G-1, pp. 2, 11).
Apparently, the state fire marshal's office told Premier that it must store these chemicals in
accordance with state regulations.
Tornbom testified that on or about April 8, 2003, there was a pine oil spill inside a
building at the plant. He stated that this material traveled into the reclaim system for industrial
water. The pumps for this reclaim system shut down because some of the spilled materiai was in
clumps. Tornbom found out about the spill when he was asked to go to the HMS (Heavy Media
Separation) plant to shut it down. After Tornbom determined that the substance spilled was pine
oil, he looked it up in the Department of Transportation's emergency response guide and reported
the spill to the Nevada Fire Marshal's office. When advised that this event should be reported to
the EPA, Tornbom contacted that agency. Tornbom believes that this spill exposed employees to
a hazardous substance.
On or about April 24, 2003, Mr. Loeppky told Tornbom that pine oil is not toxic and that
all he was doing was causing problems. Loeppky also told Tornbom that he "had better get all
[his] ducks in a row because when this is investigated [he will} look like a fool." (Tr. 14). When
Tornbom showed Loeppky the emergency response guide, he replied that it did not apply to the
plant.
Loeppky testified that prior to 1988, Premier used pine oil in a flotation process at the
plant. That process is no longer used, but some sludgy residue was left in the bottom of a tank.
He described pine oil as a soap that is similar to Pine-Sol. (Tr. 70). When this tank was washed
out on April 8, a Jot of bubbles were created and a Pine-Sol odor was emitted. Fire hoses were
used to wash the material down into the tailing system below the plant. This material had been
used at the plant for years. Loeppky testified that when the tanks were cleaned in April, nobody
knew that there was any pine oil left in them. Premier took measures to force the material down
into the tailings ponds with large quantities of water. Much of this material was in chunks.

1

The "leadman" on a crew functions as a foreman at Premier.
415

The Material Safety Data Sheet ("MSDS") for pine oil lists the hazards associated with
pine oil. (Tr. 73; Ex. R-8). The MSDS states that there are hazards associated with contact with
the skin and eyes, ingestion, and inhaling the fumes. Loeppky does not believe that the pine oil
presented a hazard to Premier's employees because it was released in a ventilated building, it
traveled through pipes to the HMS, which is a well-ventilated building, and then it went outside
in a ditch to the tailings pond. He testified that pine oil had been released during a cleaning
operation a few years earlier without adversely affecting employees. (Tr. 78). Loeppky testified
that he told Tornbom that he had better "get his ducks in a row ... because he was just ranting
and raving." Id. He further testified that "[t]here's no talking to [TornbomJ when he's in one of
his temper tantrums, you can't -- you're not going to reason with him." Id. Loeppky also
testified that employees working at the plant were familiar with pine oil, but he does not believe
that any formal instruction was given on the hazards listed in the MSDS. (Tr. 84). Premier did
not report this spill to any governmental agencies because its chemist determined that reporting
was not required.
Tornbom testified that on April 9, 2003, Bobby Adamson ordered him to pull the motor
at the Sweco screen area in the Magox plant along with Jamie Harris. They used a chain fall to
pull the motor and set it on the adjacent deck on the third floor of the building. A chain fall is a
winch equipped with chains that is used to raise and lower heavy equipment. (Tr. 33). Adamson
wanted them to use a chain fall to bring the motor down to the lower level so that it could be
moved out of the building on a cart. Tornbom testified that he does not believe that "hanging a
chain fall off either the handrail or the [fixed] ladder ... was a safe thing." (Tr. 16). He did not
believe it was safe because he was not sure if the welds on the handrail would hold and he was
concerned about an employee who was cleaning up on the ground level. Tornbom estimates that
the motor weighed about 160 pounds. Tornbom testified that when he raised this objection,
Adamson said he did not care how the motor was taken down to the ground level, but he wanted
it done. Tornbom testified that he felt threatened by Adamson's attitude and that Adamson was
abusive toward him. Tornbom eventually carried the motor down the stairs to the ground floor.
He was issued a reprimand for not completing the job in the manner in which he was instructed.
Tornbom testified that he feels that "carrying it down by hand was still safer than trying to lower
[it] down with a chain fall with somebody working down below in case something happened."
(Tr. 18).
Adamson testified that Tombom and Harris had already pulled the motor when he
arrived. Adamson stated that, as soon as he arrived, Tornbom "jumped into my face and started
getting mad at me." (Tr. 32). He testified that he told Tornbom to lower it down to the next
level using a chain fall so it could be carried on a cart to the electric shop. He also testified that
he told Tornbom not to try to carry the motor. Soon after he gave that instruction, Adamson went
to the electric shop to get the replacement motor so it could be installed at the Sweco screen.
Adamson testified that when he returned to Magox, Tombom yelled at him again about moving
the motors. Adamson carried the new motor a few steps into the building from his pickup and
Harris then took it up to the Sweco deck.

416

The next day, Adamson learned that Tombom had carried the old motor down the stairs
rather than using a chain fall or other means to lower it down. Upon hearing this, Adamson
talked to Loeppky about the incident and recommended that Tombom be reprimanded for
insubordination because he was "yelling," being "disrespectful," and "making a bad work
environment." (Tr. 36). Loeppky issued the reprimand on April 14, 2003, which states:
You were insubordinate and did not follow directions when told
how to.remove the motor at Sweco screen area in Magox. Also,
you refused to perlorrn a task assigned to you by not using the
chain fall to lower a motor to a lower level from where you were
working because you said it was unsafe. When another suggestion
was made for two people to carry the motor you refused to follow
that instruction was well. You displayed anger to your supervisor,
which you have been reprimanded for in the past. After the
supervisor left the premises you then moved the motor in an unsafe
manner causing a supposed injury to yourself.
(Ex. R-2).
Tombom testified that Adamson was the individual who started yelling that day. At the
hearing, Tombom asked Adamson why he was reprimanded for carrying the old motor down the
stairs while Harris was not reprimanded when he carried the new motor up the stairs. In reply,
Adamson testified that Tombom was reprimanded because he was told not to try to carry the
motor while Harris was not. Adamson testified that Tombom kept yelling at him that he did not
want to carry the motor and Adamson did not want Tombom to lift something that he did not
think he could handle. (Tr. 38). Adamson also stated that Harris is strong "like a bull" so he can
carry heavier objects than Tombom can. Adamson weighed the old motor after this incident and
determined that it weighed 160 pounds. (Tr. 39). Loeppky testified that because Harris worked
for a contractor, Premier could not discipline him directly. Loeppky said that he told Harris that
he did not want him to carry heavy equipment around because he did not "want him to be an old
man before his time." (Tr. 80). Loeppky also talked to Harris's supervisor about the incident.
James Harris, a contract mill mechanic in the upper shop, testified that after he and
Tombom removed the old motor they removed the counterweights from the motor. When
Adamson arrived, Tombom and Adamson started "going at it" about how the old motor would be
lowered to the bottom level and how the new motor would be brought up. (Tr. 46). Harris
testified that he and other employees have used chain falls to bring up and lower heavy
equipment in the past without any difficulty. (Tr. 45-46). As a consequence, he did not get
involved in or understand Tornbom's argument with ;\damson. Harris testified that when
Adamson arrived with the new motor, he reached down, picked it up, and brought it up to the
Sweco deck without any difficulty. On June 19, 2003, Harris signed a written statement about
this incident. (Ex. R-3; Tr. 44, 48). In the statement, he said that when Tornbom raised
questions about the safety of using a chain fall, Adamson replied that they could weld a "pad eye

417

(or lifting eye) to the stationary ladder to use the chain fall." Id. At that point Tombom started
screaming that Adamson was going to get someone killed. Id. Harris confirmed that someone
was cleaning in the area below the deck. He also confirmed that Adamson told Tombom not to
try to carry the old motor down the stairs. (Tr. 49). Harris offered to carry the old motor down
the stairs, but Tombom insisted that he carry the motor down. (Tr. 50).
On April 9, 2003, Tombom reported that he injured his right shoulder while carrying the
old motor down the stairs the day before. (Ex. R-4). In his report of injury, Tornbom stated that
he carried the motor because he was "told by Bobby Adamson to move the motor in an unsafe
way." Id.
On May 15, 2003, Tornbom and John Chappalear were repairing the D-119 bucket
elevator. Tornbom testified that he noticed that no product was running on a nearby conveyer
belt. He testified that they decided to travel to the HMS to find out why no product was on the
belt. John Gentry, a mill shift leadman, asked Tornbom what he was doing down at the HMS.
Tombom testified that he responded by saying that the whole plant was his work area and he
flipped Gentry off. It was established at the hearing that, at the time these events occurred, it was
a common practice of employees to flip each other off as a joke.
John Gentry, a mill shift leadman, testified that Tombom and Chappalear were assigned
work at the D-119 elevator that day. At about 3:30 p.m., he noticed Tornbom's vehicle
approaching the HMS. At the end of the shift, Gentry asked him why he left his work area by
traveling to the HMS. (Tr. 53). Tombom replied that the whole plant is his work area. Gentry
testified that he pressed the matter because Tornbom was working on a priority project that day.
Gentry said that Tombom replied by flipping him off and saying something like "do what you
F' g have to do" before he walked away. Id. Although it was a common practice for employees
to flip each other off, Gentry "got the feeling that he'd either slapped me or spit in my face." (Tr.
54). He did not think that Tornbom was joking around.
John Chappalear, who was a contract employee in 2003, no longer works at Premier. He
testified that he and Tornborn did not particularly like working on the bucket elevator and
decided to take a break. (Tr. 60-61). The work they were assigned was to replace the metal sides
of the bucket elevator, which is not a pleasant task. (Tr. 63). He testified that when Gentry
confronted them, Tombom flipped Gentry off and may have cursed at him. (Tr. 61, 64-65; Ex.
R-7). Chappalear believes that Tombom had a bad attitude toward management. Chappalear
also testified that the story about there being no product on a nearby belt line was just a cover to
tell anyone who saw them out of their work area. (Tr. 65). He stated that "our specific task that
day was to work on the D-119 elevator not go gal1ivanting around the plant." (Tr. 67). He
testified that he may have told Tornbom the day after this incident that he thought the whole
thing was a joke. Tombom received a written reprimand for this incident, which states:
You were out of your work area (down by the HMS at 3:30).
When I advised you of this, you gave me the finger and told me the
418

whole plant was your work area. You had a bad attitude and
[were] supposed to be working [on the] D-119 elevator.
(Ex. R-5). Tombom was tenninated from his employment following this incident. Tombom
believes that he was tenninated for reporting the pine oil spill, refusing to bring down the motor
at Sweco screen area in Magox using a chain fall, and reporting the acidic chemicals to the fire
marshal.2
Jennifer Williamson, human resources and safety coordinator, testified that MSHA
Inspector Jerry Killian and his supervisor Tyrone Goodspeed traveled to the mine for a regular
inspection and to investigate a section 103(g) complaint MSHA received on April 21, 2003,
about the pine oil spill and the Sweco motor incident. The inspectors investigated the complaints
and talked to employees about the conditions, including Tombom. No citations were issued for
either condition. (Tr. 90). The inspectors determined that the pine oil was not toxic and that the
company's procedure of using a chain fall to move the motors to and from the Sweco deck was
safe. (Ex. R-10).
When MSHA investigated Tornbom's discrimination complaint, the investigator asked
the company to produce its history of reprimands. These reprimands show that employees have
been disciplined for being out of their work area, for being insubordinate, and for failing to
follow a leadman's orders. (Ex. R-11). Ms. Williams testified that an employee is tenninated on
a third notice of reprimand of the same violation. (Tr. 97). As a consequence, an employee can
receive three reprimands without being tenninated if the reprimands are for different violations
of the company's rules.
Tombom received his first reprimand on July 23, 2002. Adamson testified that following
a dispute with Tombomjust before lunch, Tombom became angry and headed to his pickup
truck. Adamson testified that he walked up behind Tombom toward the truck. When Tombom
got into the truck, he "tore out of there as fast as he could" which caused Adamson to be
peppered with rocks from the gravel roadway. (Tr. 29). Adamson testified that he discussed the
incident with Tornbom later that day and recommended to Loeppky that Tombom be
reprimanded. Loeppky issued the reprimand later that day, which states:
You were spinning the tires on the pickup, you were driving in
front of the upper shop. Any repetition of the act or any other fit of
anger with your supervisor or fellow workers will be cause for your
immediate tennination.
2

Tombom filed a complaint of discrimination with the Department of Labor's Mine Safety
and Health Administration ("MSHA") on or about June 2, 2003. By letter dated August 20, 2003,
MSHA notified Tornbom that it detennined that the facts disclosed during its investigation of his
complaint did not constitute a violation of section 105(c) of the Mine Act. On October 15, 2003,
Tornbom filed the complaint in this proceeding.
419

(Ex. R-1). Tornbom testified that he did not know that Adamson was behind the truck when he
spun out and that he apologized after the incident. Premier classified this reprimand as discipline
taken for insubordination. (Tr. 105).
Don Pressey, general manager for Premier's Gabbs facility, testified that he determined
that Tornbom should be terminated from his employment. (Tr. 99). Gentry came into his office
to discuss the incident of May 15 and asked if "he had to stand for this treatment that he got." Id.
Gentry described the incident to Pressey without mentioning Tombom' s name. (Tr. 99-100).
Pressey replied that he did not have to put up with such behavior from an employee. When
Pressey found out it was Tombom, he left a message with him to meet him the following
Monday, May 19. Before talking with Tombom, Pressey discussed Tombom's conduct with
Adamson and Loeppky, after which he decided to terminate Tombom. Tornbom was notified on
May 19, 2003, that he was terminated effective May 15.

II. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 95th Cong., !51 Sess. 35 (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 623 (1978) ("Legis. Hist.")
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient to support a conclusion that he
engaged in protected activity and suffered adverse action motivated in any part by that activity.
Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800
(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on
behalf of Robinette v. United Castle Coal Co. , 3 FMSHRC 803, 817-18 (April 1981); Driessen v.
Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the
primafacie case by showing either that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine
operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving
that it was also motivated by the miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see
also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

420

A. Protected Activity
Tombom engaged in a number of safety-related activities that are protected by the Mine
Act. He complained about the storage of acidic chemicals at the mine, he complained about the
release of pine oil at the mine, and he complained about the manner in which his supervisor
wanted him to lower the Sweco screen motor to the bottom of plant. Premier does not dispute
that Tombom "believes in his heart" that he raised serious safety issues at the mine. (Tr. 105).
As a consequence, I find that Tombom engaged in protected activity while employed at Premier.

B. Adverse Action
Tombom suffered an adverse action when he was separated from his employment. The
issue is whether Tombom was terminated from his job as a result of his protected activities. In
determining whether a mine operator's adverse action is motivated by the miner's protected
activity, the judge must bear in mind that "direct evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect." Sec'y of Labor on behalfof Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other grounds, 709
F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the discrimination can be
proven only by the use of circumstantial evidence." Id. (citation omitted). In Chacon, the
Commission listed some of the more common circumstantial indicia of discriminatory intent: (1)
knowledge of the protected activity; (2) hostility or animus toward the protected activity; (3)
coincidence in time between the protected activity and the adverse action; and (4) disparate
treatment of the complainant.
It is clear that Premier management had knowledge of Tombom's protected activities. In
addition, there is a coincidence in time between the protected activities and the adverse action.
The safety complaints that Tombom relies upon were made in February, March, and April 2003.
He was terminated effective May 15, 2003. The key issues are whether management displayed
hostility or animus toward the protected activities and whether there was disparate treatment of
Tombom. I discuss each incident individually.

1. The Larry Ratta lnjurv.
The events surrounding the injury to Larry Ratta do not constitute activities protected by
the Mine Act. Adamson apparently confronted Tombom about the fact that Premier might have
to pay for the Care Flight helicopter. Since Tombom was the local fire chief and he tended to
Ratta's injuries at the plant, Adamson assumed that he had called for the helicopter. Tombom
denies that he called Care Flight. Tombom did not complain about safety or health conditions at
the mine, so there were no protected activities associated with this incident. In addition,
Tombom was not disciplined by Premier as a result of this incident.

421

2. Drums of Acidic Chemicals.
Tombom reported to the fire marshal that there were drums of acidic chemicals stored at
the facility. I find that his complaint was protected under the Mine Act because Tombom
believed that the chemicals posed a health and safety risk to himself and other employees. It
appears that Premier had to change the manner in which it stored these chemicals after
Tornbom' s call to the fire marshal because Loeppky told Tombom that his complaint was
requiring everyone in the upper shop to work harder. I find that Loeppky' s response to
Tornbom's complaint displayed hostility and animus toward his protected activity, but Tornbom
was not disciplined for calling the fire marshal.

3. Pine Oil Incident.
Tornbom complained about the presence of pine oil to the Nevada Fire Marshal's office
and the EPA. He also filed a complaint with MSHA. Thus, I find that Tombom engaged in
protected activity. Premier contends that pine oil is not hazardous and that it is similar to PineSol. The primary ingredient in Pine-Sol is pine oil. Pine-Sol also contains surfactants used as
cleaning agents. The hazards associated with Pine-Sol are the same as the hazards listed on the
MSDS for pine oil. (See National Institutes of Health, National Library of Medicine, Specialized
Information Services, Household Products Database, available at http://householdproducts.nlm.
nih.gov/cgi-bin/household/brands?tbl=brands&id=3007020). I find that the release of pine oil at
Premier did not pose any health or safety risk to Tornbom or other employees at the facility. The
MSHA inspectors who investigated the hazard complaint reached same conclusion. (Ex. R-10).
Nevertheless, Tornbom sincerely believed that a safety and health risk was present. I also believe
that his concerns were reasonable. I find that his complaints to governmental authorities are
protected by section 105(c) of the Mine Act.
I believe that Loeppky' s response to Tornbom' s complaint was not particularly hostile.
Loeppky felt that the release of the pine oil did not pose a safety or health risk to employees. He
knew that pine oil had been used in the plant in the past and that it is similar to Pine-Sol. He
simply told Tornbom that he better get his ducks in a row before he makes a big issue out of it. I
credit Loeppky' s testimony that he made this statement to Tornbom because he was "ranting and
raving" about it. Nevertheless, I give Tornbom the benefit of the doubt and assume that Loeppky
displayed some degree of hostility toward his complaint. He interpreted Loeppky' s statements as
a threat.

4. Sweco Screen Motor Incident.
Tornbom complained about the manner in which Adamson wanted him to lower the
Sweco screen motor to the floor of the plant. He also refused to comply with Adamson' s order to
use the chain fall. As a consequence, this incident can more accurately be described as a work
refusal.

422

The Commission and the courts have recognized the right of a miner to refuse to work in
the face of perceived hazards. See Price v. Monterey Coal Co., 12 FMSHRC 1505, 1514 (Aug.
1990); Secretary of Labor on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 520 (Mar.
1984), aff'd mem., 780 F.2d 1022 (6th Cir. 1985). A miner refusing work is not required to prove
that a hazard actually existed. See Robinette, 3 FMSHRC at 810-12. fu order to be protected,
work refusals must be based upon the miner's "good faith, reasonable belief in a hazardous
condition." Id. at 812; accord Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989). The
complaining miner has the burden of proving both the good faith and the reasonableness of his
belief that a hazard existed. See Robinette, 3 FMSHRC at 809-12; Secretary of Labor on behalf
of Bush v. Union Carbide Corp., 5 FMSHRC 993, 997 (June 1983). A good faith belief "simply
means honest belief that a hazard exists." Robinette, 3 FMSHRC at 810.
I find that Tombom was proceeding in good faith when he refused to use a chain fall to
lower the motor. Whether he was acting reasonably is a closer issue. Harris credibly testified
that chain falls are used to raise and lower heavy equipment at the Magox plant. The company
proposed to use a handrail or fixed metal ladder to support the motor. The motor only weighed
160 pounds, which is not particularly heavy, but the weight of the chain fall is not in evidence.
The MSHA inspectors who investigated the section 103(g) complaint entered the following
findings and conclusions in their report:
Bobby Adamson had employee hang a 160 lb motor from a ladder.
He refused to do as instructed, for he thought that MSHA has a rule
against this. He was told to do it anyway.... MSHA has no rule
to that effect as long as they do it as safe as possible. Looked the
area in question over. Could see nothing wrong with their
procedure. The ladder was substantially constructed. Issued
negative findings.
(Ex. R-10). Handrails and fixed metal ladders are designed to take weight. Although Tombom
was concerned about an employee cleaning up in an area below, that problem could have been
solved by removing the employee once the chain fall operation was started. There is no evidence
that Adamson would have allowed employees to continue working under the area where the
motor was to be lowered. Nevertheless, for purposes of my analysis, I will assume that Tombom
had a reasonable basis for his concern. He believed that the motor could accidently fall and hit
an employee under the chain fall. On that basis, I find that Adamson displayed some animus
toward Tombom's safety complaint, although Adamson was mostly concerned with Tornbom's
belligerent attitude.

5. Incident of May 15, 2003
The event that led to Tombom's termination occurred on May 15, 2003, when Gentry
confronted Tombom about his presence at the HMS plant. The events that transpired that day do
not involve protected activity. Gentry believed that Tornbom displayed a lack of respect for
423

management and that he was insubordinate. It is this incident that precipitated Tombom's
termination. Tombom believes that his termination following this incident was pretext to cover
up the real reason for his termination, his protected activities. He claims that employees
frequently flip each other off without being disciplined or terminated.

C. Sufficiency of Tornbom's Case
Because Tom born engaged in protected activities and Premier was hostile to at least some
of his safety concerns, I find that Tombom established a prima facie case. He was terminated for
insubordination shortly after he made these complaints.

D. Analysis of Premier's Defense
As stated above, an operator can rebut a prima facie case by presenting evidence that
either no protected activity occurred, no adverse actions were taken, or that the actions taken with
respect to the employee were in no part motivated by the protected activity. An operator can also
rebut the primafacie case by presenting evidence that the actions it took with respect to the
employee were also motivated by unprotected activities and that it would have taken these
actions for the unprotected activity alone.
I hold that Premier successfully rebutted Tombom's case. I find that Premier did not
terminate Tombom for his protected activities. I also find that, even if Premier took some of
these activities into consideration when it terminated Tombom, it would have terminated
Tombom for his unprotected conduct alone.
Tombom was terminated following three reprimands for insubordination. The final
reprimand was for being out of his work area and showing disrespect to his supervisor. I find
that this reprimand and the resulting discharge was not a pretext to cover an unlawful motive for
the termination. Tombom had no reason for being at the HMS plant at that time. When Gentry
questioned him about it, Tombom responded in a belligerent and antagonistic manner.
Chappalear testified that there was no reason for them to be at the HMS plant and confirmed
Tombom's display of belligerence. There was absolutely no safety component to this incident.
In addition, Tombom's aggressive attitude toward Gentry was not provoked by Premier. A
Commission judge must "determine whether the actions for which the miner was disciplined
were provoked by the operator's response to the miner's protected activity.... " Sec'y of Labor
on behalf of McGill v. U.S. Steel Mining Co., 23 FMSHRC 981, 992 (Sept. 2001). Mr. Gentry
had not been involved in Tombom's previous discipline. Moreover, Gentry's questioning of
Tombom was legitimate and totally unrelated to Tombom's protected activities. I credit
Gentry's testimony on this issue. I also credit the testimony of Pressey that he decided that the
employee Gentry complained about on May 15 should be reprimanded before he learned that
Tornbom was the employee involved. (Tr. 98-99).

424

Tornbom's complaint about the presence of pine oil at the plant was at least initially
reasonable. Loeppky was primarily hostile to Tornbom's agitated state over the issue. Loeppky
knew that pine oil was not toxic and that the health hazards presented were not significant
because employees were simply diluting the material with water and letting it run into the tailings
pond. Loeppky did not do a particularly good job of addressing Tombom's concerns, however.
When "a miner expresses a reasonable, good faith fear [of] a hazard, the operator has a
corresponding obligation to address the perceived danger." Gilbert v. FMSHRC, 866 F.2d 1433,
1440 (D.C. Cir 1989). If an operator adequately addresses a miner's concerns so that "his fears
reasonably should have been quelled," an otherwise reasonable work refusal can become
unreasonable. Id. at 1441. Loeppky did not quell Tornbom's fears by stating that he had better
get his ducks in a row. Tornbom took that statement as a threat rather than a caution that his
concerns were not reasonable. Nevertheless, Tornbom was not disciplined for raising concerns
about the release of pine oil. In addition, I find that the concern Tornbom raised about the release
of pine oil did not contribute to his termination from employment on May 15.
Tornbom was disciplined for the events surrounding his refusal to use a chain fall to
move the old motor from the Sweco deck to the lower level. Tornbom seemed to be concerned
that the welds on the frame of the permanent ladder on the Sweco deck could not hold the weight
of the motor and chain fall. He was also concerned that someone could be cleaning in the area
below. I did not personally visit the Sweco deck but, based on my knowledge of industrial
installations, Tornbom's concerns seem rather far fetched. The motor only weighed 160 pounds
and chain falls had been used in the past. The MSHA inspectors who investigated the section
103(g) safety complaint determined that there was "nothing wrong with [Premier's] procedure."
(Ex. R-10). I find that Tombom was disciplined for the angry manner in which he discussed the
issue with Adamson and the fact that he carried the 160 pound motor down the stairs by himself,
thereby injuring his shoulder. I credit the testimony of Harris and Adamson on the belligerent
attitude displayed by Tornbom. I find that his belligerent attitude was not provoked by
management because Tornbom became hostile the moment Adamson arrived at the deck.
Adamson attempted to quell Tornbom's fears by explaining how a chain fall could be used
safely, but Tornbom simply kept on yelling at him. (See Exs. R-2 & R-3). I find that, even if his
protected activity played a part in this reprimand for this work refusal, he would have been
reprimanded in any event for his unprotected activities alone.
Loeppky made disparaging remarks about Tornbom's complaints concerning the storage
of drums of acidic chemicals at the plant. Tombom was not disciplined for his complaint and,
based on evidence presented by Premier, I find that these complaints did not contribute to the two
subsequent reprimands that he received for insubordination. Tombom did not allege that the
reprimand he received in 2002 for spinning his tires in front of the upper shop was a result of any
protected activity.
Finally, Tornbom alleges that he was treated differently from other similarly situated
employees. He points to the fact that many employees who have received three reprimands are
425

still working for Premier. He also argues that employees often flipped each other off as a joke. I
credit the testimony of Williamson that Tombom was terminated because he had received three
reprimands for the same offense. She testified that if an employee is remanded for three
unrelated offenses, such as tardiness, leaving a work area, and failing to wear an hard hat, he will
usually not be terminated. (Tr. 92, 97). She believes that this rule is set forth in the collective
bargaining agreement. I credit the testimony of Gentry that Tombom was not joking when he
told Gentry that the whole plant was his work area and flipped him off.

III. ORDER
For the reasons set forth above, the discrimination complaint filed by John D. Tombom
against Premier Chemicals, llC, under section 105(c) of the Mine Act is DISMISSED.

..
Richard W. Manning
Administrative Law Judge

Distribution:

John D. Tombom, P.O. Box 603, Hawthorne, NV 89415-0603 (Certified Mail)
Stephen S. Becker, Esq., Vice President and General Counsel, Premier Chemicals, 850 First
Avenue, King of Prussia, PA 19406-1404 (Certified Mail)

RWM

426

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001
·

May25, 2004
SAN JUAN COALCO:MPANY,
Contestant

CONTEST PROCEEDING
Docket No. CENT 2004-35-R
Citation No. 7605607; 11/10/2003

v.

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

San Juan South Mine
Mine ID No. 29-02170

DECISION
Appearances: Timothy M. Biddle, Esq., Crowell & Moring, LLP, Washington, D.C.,
on behalf of Contestant;
Timothy S. Williams, Esq., U.S. Department of Labor, Office of the Solicitor,
Arlington, Virginia, on behalf of Respondent.
Before:

Judge Zielinski

This case is before me on a Notice of Contest filed by the San Juan Coal Company ("San
Juan") pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 ("Act"),
30 U.S.C. § 815. The notice challenges the validity of a citation issued by the Secretary of
Labor's Mine Safety and Health Administration ("MSHA") on November 10, 2003. Citation No.
7605607 alleges a violation of air quality standards in an area adjacent to the last shield on the
tailgate side of San Juan's longwall panel. San Juan contends that the site of the alleged
violation is not an area where persons work or travel, rendering the regulation inapplicable.
A hearing was held in Farmington, New Mexico, and the parties submitted briefs following
receipt of the transcript. For the reasons set forth below, I find that San Juan did not commit the
alleged violation and vacate the citation.
Findings of Fact - Conclusions of Law
San Juan operates the San Juan South Mine, an underground coal mine located near
Farmington, New Mexico, where longwall equipment is used to extract coal from a seam that is
10-12 feet thick. A double-drum shearing machine travels back and forth across the 1,000 foot
coal face, depositing coal onto a chain conveyor, which mov~s it to the headgate side of the
longwall where it is loaded out by belt conveyor. Temporary roof support is provided by 178
shields, which are advanced by a computerized system as the shearer advances the face. Each
427

shield has a base, with "toes" that extend toward the face. Two hydraulic cylinders apply
pressure between the base and the upper portion of the shield that extends out over the shield toes
and longwall equipment, pressing against the mine roof. Miners travel along the face by walking
on the toes of the shields, in the space between the shearer/conveyor equipment and the shields'
hydraulic cylinders.
There are three entries to the longwall face. Two are located at the headgate. They
provide both the primary and alternate escapeways, a path for intake air to ventilate the face, and
space for transport of miners and equipment, as well as conveyor belts to remove coal from the
mine. The entry at the tailgate provides a path for return air. It also must be maintained as an
escapeway, except in limited circumstances.• The entries were driven with continuous mining
machines and their roofs are supported by bolts, wire mesh and cable trusses.
As with any longwall mining operation, the roof is supported only temporarily by the
shields. As the longwall shearing machine and shields advance, the unsupported roof is allowed
to fall into the area behind the shields, the "gob."2 The roof generally falls as the support
provided by the shields is removed. However, roof falls in the entries, where the roof is
supported by bolts, are more sporadic. Tr. 368-69. In the tailgate entry, for example, the roof
may not fall until the face has advanced as much as 20 or 30, or even 100 feet. Tr. 229. More
importantly, the falling roof can pull down the roof adjacent to the shields. San Juan has
experienced tailgate roof falls three feet outby the shield legs, and, on one occasion, as far as the
face. Tr. 269-71. In order to prevent rocks and other debns from entering the working area
under the shields, a two-inch thick steel plate is mounted on the outside of the last shield. That
plate, which will be referred to as the gob separation plate, is approximately three feet high, and
is attached to the shield by a hinge, which allows it to move as the shield advances. The longwall
drive equipment housing also has heavy plate on the tailgate side.
San Juan's mine liberates large amounts of methane and is subject to inspections by
MSHA every five days, pursuant to section 103(i) of the Act. In addition, the coal in San Juan's
mine has characteristics that make it susceptible to spontaneous combustion. To address these
problems, San Juan employs a bleederless ventilation system, does not alJow wood products in
the mine, and has an exacting cleaning program. The ventilation system is designed to achieve
substantial air flow across the face and to reduce the oxygen content of the atmosphere in the gob
to below five percent as soon as possible. Under the mine's approved ventilation plan, 65,000 to
100,000 cubic feet of air per minute flows in the headgate entry, across the face and out the

1

If the tailgate travelway becomes unavailable, an operator may resume mining, with the
permission of MSHA, by implementing its tailgate blockage plan. See 30 C.F.R. §§ 75.215.(b),
75.222(g), 75.384(c).
2

"Gob" is "[t]he space left by the extraction of a coal seam into which ... the immediate
roof caves." Am. Geological Institute, Dictionary of Mining, Mineral and Related Terms, 239
(2d ed. 1997).
428

tailgate entry.3 In order to reduce the concentration of oxygen in the gob, the gob atmosphere is
ventilated to the surface. Six-inch diameter boreholes are drilled from the surface on 500-foot
centers down to close proximity to the top of the coal seam.4 As the longwall face advances and
the roof of the gob falls, the boreholes are opened to the surface. Pumps at the top of the
boreholes draw air out of the gob. That air is replaced by nitrogen, which is injected into the gob
through seals separating it from an adjoining entry.
The large quantity of air ventilating the face of the longwall tends to cause the lowoxygen gob atmosphere to remain in the gob, and quickly dilutes and renders harmless any gob
atmosphere that infiltrates through the spaces between the shields. However, San Juan has had
difficulty maintaining air quality in an area in the tailgate entry adjacent to the last shield. As the
air current ventilating the face sweeps around the corner of the face and out the tailgate entry it
has a tendency to draw low-oxygen atmosphere out of the gob, especially when outside
atmospheric pressure declines. The oxygen content of the air in that area, where gob atmosphere
mixes with ventilation air, can drop below 19.5%, the concentration required in areas where
persons work or travel. 30 C.F.R. § 75.32l(a).
The area where low concentrations of oxygen have been found is depicted on exhibit C-4
as a rectangle labeled "AA," and has been referred to throughout this proceeding as the "Affected
Area."5 It extends across the 18-20 foot width of the tailgate entry from the last shield to the rib.
The inby border, a line starting at the shield legs drawn perpendicular to and across the entry,
represents MSHA' s view of the extreme inby active workings of the section. The outby border is
represented by a line approximately 12 feet from the inby border. The most problematic portion
of the Affected Area is in the lower right comer and along the rib. Tr. 343.
Events of November 10 - 16. 2003
On November 10, 2003, William E. Vetter, an experienced MSHA inspector, conducted a
spot inspection of the mine pursuant to section 103(i) of the Act. He reviewed the mine's
preshift inspection books and noted that low concentrations of oxygen, 18.3-19.4%, had been
reported in the tailgate area of the longwall several times from November 6 through 10. The
reports described the corrective action taken, i.e., the area had been "dangered off." He spoke to
David Hales, San Juan's safety manager, and Scott Langly, the mine manager, and was told that
San Juan's attorney had advised that adverse observations should be recorded, along with the

3

30 C.F.R. § 75.325(c)(l) requires that a minimum quantity of 30,000 cubic feet of air
per minute reach the working face of a longwall, unless a different amount is specified in the
mine's approved ventilation plan.
4

The borehole spacing exceeds the current 1,000 foot requirement in San Juan's
approved ventilation plan.
5

A replica of exhibit C-4 is attached as an Appendix to this Decision.
429

corrective action, and that the tailgate blockage plan should not be implemented because the
tailgate travelway was not, in fact, blocked.
Vetter knew that there had been repeated problems maintaining oxygen levels in the area
and had been "trying to work with" San Juan, employing a flexible enforcement policy. Tr. 12223. If he found low oxygen in the area, he did not issue a citation if San Juan had detected the
problem and was working to correct it. 6 Tr. 120. On November 10, he was concerned that low
oxygen levels had been found periodically over four days and that the only corrective action that
had been taken was that the area had been dangered off. He believed that it was permissible to
danger off the area temporarily, but not as a permanent fix, and it "look[ed] like it [was] going to
be permanent." Tr. 124-25. He called MSHA supervisory personnel in Denver, Colorado, and
was advised to travel underground and enforce the regulation, which he interpreted to mean that
he was to inspect the Affected Area and issue a citation if he found low oxygen. He traveled to
the tailgate area of the longwall and observed a "danger" sign posted so as to bar persons from
passing through an opening, or "notch," in the gob separation plate adjacent to the shield's toes.
He advised San Juan personnel that it was not permissible to danger off the area in lieu of taking
other actions to correct the problem. The sign was taken down, and he entered the Affected
Area, holding a multi-function atmospheric monitoring system ("AMS") meter in front of him.
As he proceeded, he observed meter readings showing low levels of oxygen, as well as elevated
levels of methane. He took two bottle samples of air and issued Citation No. 7605607, alleging a
violation of 30 C.F.R. § 75.321(a)(l), which requires that air in "areas where persons work or
travel" contain a minimum of 19.5% oxygen. Ex. S-3. Vetter's observations were recorded in
the "condition or practice" section of the form as follows:
The air quality in an area of the working section (MMU-010), LW102 tailgate,
was not being maintained to contain at least 19.5% oxygen. The oxygen level
ranged from 18.8% to 19.3% at a location 8 feet from the coal rib, 2 feet from the
roof, and aligned with the tailgate shield walkway and at a location 3 feet from the
rib and 3.5 feet from the roof the oxygen level ranged from 16.5% to 17.3%. This
area of inadequate air quality extended along the rib from the extreme inby active
workings to a point approximately 12 feet outby. Bottle samples E0313 and
E0341 were collected from the aforementioned locations.
Vetter determined that the violation was unlikely to result in an injury, and that it was not
significant and substantial. He assessed the operator's negligence as moderate, because the area
had been dangered off. He specified that the condition was to be corrected by November 12,
2003, at 1400 hours. That deadline was subsequently extended and the condition was abated on
November 16, 2003, after San Juan implemented an amendment to its ventilation plan
establishing a diffusion zone further outby in the tailgate travelway. Implementation of the plan

6

San Juan had many discussions with MSHA about the problem, and the enforcement
policy followed by Vetter was consistent with that described by Donald A. Gibson, an MSHA
field office supervisor. Tr. 62-63.
430

amendment did not permanently remedy the problem, although it "appeared to have helped for a
period of time." Tr. 69. The company eventually stopped using the diffusion zone, and MSHA
subsequently rescinded its approval of the amendment, because it resulted in other hazards that
could not be effectively addressed. 7 Tr. 80-81.
The Dispute
30 C.F.R. § 75.321, provides, in pertinent part:
§ 75.321 Air Quality
(a)(l) The air in areas where persons work or travel, except as specified in
paragraph (a)(2) of this section, shall contain at least 19.5 percent oxygen and not
more than 0.5 percent carbon dioxide, and the volume and velocity of the air
current in these areas shall be sufficient to dilute, render harmless, and carry away
flammable, explosive, noxious, and harmful gases, dusts, smoke and fumes
(emphasis added).
The issue to be decided is whether section 75.32l(a)(l) applies at the locations where low
oxygen levels were found. In other words, on November 10, 2003, was the Affected Area an
area where persons work or travel, within the meaning of the regulation.8 While the parties
advance strongly opposing views on that issue, they agree that the regulatory language is
unambiguous, and that application of the plain meaning of the phrase "work or travel" dictates an
outcome in their favor. 9
The rules governing statutory and regulatory interpretation are well-settled, though their
application may prove difficult. As the Commission recently explained in Cannelton Industries,
Inc., 26 FMSHRC 146, 150-51 (Mar. 2004):

7

A number of other measures to address the problem have been considered. However,
they, too, pose additional potential problems. For example, increasing the amount of air drawn
out through the boreholes would reduce the likelihood of gob air infiltrating the Affected Area.
However, it would also draw oxygen bearing air into the gob, increasing the risk of spontaneous
combustion.
8

The parties agree that the exception contained in paragraph (a)(2), which deals with
bleeder entries and worked out areas, is not applicable to this case.
9

The Secretary argues, in the alternative, that if the regulatory language is found to be
ambiguous, that her interpretation is entitled to deference. San Juan counters that the Secretary's
interpretation is unreasonable and inconsistent with the legislative and regulatory scheme.
431

The "language of a regulation ... is the starting point for its
interpretation." Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing
Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980)). Where the language of a regulatory provision is clear, the terms of that
provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such a meaning would
lead to absurd results. See id.; Utah Power & Light Co., 11 FMSHRC 1926, 1930
(Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993)....
"In determining the meaning of regulations, the Commission ... utilizes
'traditional tools of ... construction,' including an examination of the text and the
intent of the drafters." Amax Coal Co., 19 FMSHRC 470, 474 (Mar. 1997)
(quoting Local Union [1261, UMWA v. FMSHRC, 917 F.2d 42, 44-46 (D.C. Cir.
1990)]). In a plain meaning analysis, a provision at issue must be considered in
the context Qf the language and design of the Secretary's regulations as a whole.
New Warwick Mining Co., 18 FMSHRC 1365, 1368 (Aug. 1996); see Meredith v.
FMSHRC, 177 F.3d 1042, 1053-54 (D.C. Cir. 1999) (stating that reading the plain
words of a provision literally can carry a different meaning than intended;
meaning of the language, plain or not, depends on the context). The Secretary's
regulations should be interpreted to give comprehensive, harmonious meaning to
all provisions. New Warwick, 18 FMSHRC at 1368. Additionally, "a regulation
must be interpreted so as to harmonize with and not conflict with the objective of
the statute it implements." Emery Mining Corp. v. Sec'y of Labor, 744 F.2d 1411,
1414 (10th Cir. 1984) (citations omitted); see also Canterbury Coal Co.,
20 FMSHRC 718, 721-22 (July 1998) (referring to both Mine Act and regulatory
history in plain meaning analysis).
Work or Travel in the Affected Area
The Secretary contends, and San Juan does not dispute, that persons have worked and
traveled in the Affected Area on numerous occasions prior to November 10, 2003, and thereafter.
It is also undisputed that, on November 10, Vetter and others entered the area for the inspection
and miners were later required to enter the area to install and maintain ventilation controls.
However, San Juan contends that no one could work or travel in the dangered off Affected Area
on November 10, 2003, that no one was scheduled to work or travel in the Affected Area under
normal work conditions, and that persons have entered the Affected Area only because MSHA
has insisted that it be maintained as active workings.
San Juan had been a surface mine. It started its underground longwall operations about
one year before the citation was issued. When it developed its ventilation and other plans, it
originally proposed to bar persons from entering the Affected Area. However, MSHA rejected

432

that proposal, and required that the area be treated as active workings, mandating preshift
examinations and compliance with the ventilation standard. 10 Tr. 265-67.
It was not necessary for an examiner to physically enter the Affected Area in order to
conduct the preshift examination. The existence of hazards was typically determined through
visual inspection from adjacent locations under the shield or in the tailgate travelway, and air
quality was checked by extending an AMS meter into the area on a probe. When low oxygen
levels were detected, however, miners often had to enter the area to install or adjust ventilation
control devices, typically air curtains, to address the problem. On one occasion, a miner entered
the Affected Area to retrieve an AMS meter that had fallen from a probe. Tr. 47-48.
The Secretary asserts, based upon non-specific hearsay statements, that miners enter and
work in the Affected Area to service and maintain the longwall equipment. However, I reject
that assertion. Scott Jones, an engineer and longwall coordinator, testified as an expert on
longwall equipment and operations. He participated in the design of San Juan's longwall,
coordinating with the original equipment manufacturer, Joy Mining. Jones explained that the
equipment was designed to assure that no one would go beyond the last shield, i.e., into the
Affected Area. No equipment is accessible from that area, and no servicing or maintenance of
the longwall equipment can be done from the Affected Area. As noted above, the longwall drive
equipment is protected by heavy steel plate on the side that faces the tailgate entry, and the gob
separation plate protects the lower portion of the last shield. Servicing and maintenance of the
longwall equipment is performed from positions under the shields. A catastrophic failure of the
longwall drive, that would necessitate replacement of the motor or transmission, may require that
work be performed in the Affected Area. However, in 18 months of operation, that has been
required only once.
Miners travel from the face into the tailgate travel way for a number of reasons. Various
ventilation control devices, including a gob isolation stopping, are located outby in the tailgate
travelway, and must be inspected every shift. Miners also enter the tailgate travelway to maintain
AMS components and dewatering pumps, and perform other tasks. The tailgate travelway must
be maintained as an escapeway. It is also the return air course, and air courses must be inspected
weekly.
There are two routes from the face to the tailgate travelway. The route that San Juan has
designated for such travel, and has trained its miners to follow, starts under the shields near the
longwall drive. The mining equipment must be deenergized and locked-out, after which the

10

30 C.F.R. § 75.360(a)(l) requires, generally, that preshift examinations be conducted
by certified persons before any shift in which "any person is scheduled to work or travel
underground." It also provides that no person other than a certified examiner may remain in any
underground area unless a preshift examination has been completed for the shift. 30 C.F.R.
§ 75.2 defines active workings as, "Any place in a coal mine where miners are normally required
to work or travel."
433

miner steps up onto and across the face conveyor, which typically would have some coal on it,
and travels along the face into the tailgate travelway. That route is depicted on exhibit C-4 as a
hand-drawn line (green on the original) with an arrowhead at its end in the tailgate travelway.
A miner following that route would not enter the Affected Area. 11
The second route passes through the Affected Area. From the end of the walkway along
the toes of the shields, a miner could step through the notch in the gob separation plate, crawl or
walk over rubble from toof falls, travel through the Affected Area, and enter the tailgate
travelway. Tr. 280. When a preshift examination disclosed no ventilation or other hazards in the
Affected Area, miners were free to enter, work in, and travel through it during the subsequent
shift. Many have done so, both before and after the citation was issued.
While San Juan disputes the Secretary's assertion that miners found it more "convenient"
to travel through the Affected Area to reach the tailgate travelway, it does not dispute that
miners, including foremen, used that route. It also does not dispute that miners are required to
enter the Affected Area to maintain ventilation controls required by MSHA, because of its
insistence that the area be maintained as an active working area.
I find that persons frequently traveled through the Affected Area, prior to and after
November 10, 2003, in order to perform various tasks outby in the tailgate travelway. With the
exception of actions required to address ventilation problems, all such travel occurred after a
preshift examination had been conducted and the area was found to be free of hazards. Persons
have also been required by MSHA to be in the Affected Area to conduct inspections and
maintain ventilation controls, because of its determination that the area must be maintained as an
active working area. Vetter entered the Affected Area on November 10 to perform the
inspection, and others entered it after the citation was issued, in order to take corrective action.
Persons are not required to enter the Affected Area to perform service or maintenance on the
longwall equipment.
San Juan has consistently maintained that the Affected Area is not an area where persons
should work or travel, and that its miners should not be exposed to the hazard of roof falls.
Because of that hazard, San Juan's miners have complained about being forced to enter the
Affected Area. Contestant's exhibit C-9 is a photograph, taken through the opening in the gob
separation plate, depicting fallen roof in the Affected Area. Tr. 282. Exhibit C-5 is a copy of an
MSHA accident report form submitted by San Juan on December 7, 2003, reporting a roof fall in
the tailgate travelway that extended through the Affected Area outby the face. David C. Hales,
San Juan's underground safety coordinator, testified that MSHA had written a letter to San Juan
a week prior to the hearing, expressing concern that roof falls might destroy ventilation controls

11

The route to the tailgate travelway designated by San Juan passes somewhat closer to
the comer of the face than the route through the Affected Area, and miners using it would be
exposed to a marginally increased risk of a rib failure due to the pressures on that comer of the
face.
434

located in the Affected Area. He noted that miners examining the area or working on the
ventilation controls would also be exposed to the hazard. Tr. 303.
Prompted, in part, by miners' complaints, San Juan submitted a request to MSHA for a
modification of the air quality standard, proposing that a diffusion zone be established in the
vicinity of the Affected Area. Concentrations of oxygen lower than those required in section
75-32l(a)(l) would be allowed in the diffusion zone, and miners would not be permitted to work
or travel in it. MSHA has investigated the proposal, which had been submitted over a year
before the hearing, but no decision has yet been made. MSHA's concern with the proposal is
apparently the size of the diffusion zone proposed by San Juan. Notably, on the day that MSHA
conducted an on-site inspection in conjunction with the petition, a roof fall, extending three feet
into the Affected Area, occurred. Tr. 270.
The Validity of the Citation
The Notice of Contest filed by San Juan challenges the validity of Citation No. 7605607,
alleging that on November 10, 2003, the air in the Affected Area contained insufficient oxygen.
The parties agree that oxygen levels in the Affected Area were less than 19.5%. They disagree
on whether the Affected Area was an area where persons work or travel within the meaning of
the regulation.
The main argument advanced by the Secretary is that persons entered the Affected Area
on many occasions, both to travel through it and to perform work, mandating application of the
regulation. Had the area not been dangered off, I would be compelled to agree. While San Juan
argues that none of its miners were ever scheduled to work or travel in the area, it is clear that
many did so, both as a matter of convenience and to perform tasks mandated by MSHA's
directive that the standard applied. Absent the danger sign, miners would have been free to enter
the area and may well have done so. Consequently, application of the standard would be entirely
consistent with its plain wording, and logically necessary to protect persons from hazardous air,
whether or not anyone actually traveled or worked in the area, or was scheduled to, on
November 10.
However, on November 10, 2003, the date the citation was issued, San Juan had taken
effective steps to assure that no person worked or traveled in the Affected Area. Vetter testified
that when he arrived, he observed a danger sign that had been posted on the gob separation plate,
and he determined that it was an effective measure to bar persons from entering the area.
Tr. 128, 145-46. Despite a possible suggestion by the Secretary to the contrary, there is no
evidence that the Affected Area was not effectively dangered off, and that miners and others who
might have been in the vicinity had been put on notice that entry and travel through the Affected
Area was prohibited. 12 Vetter had not observed anyone in the Affected Area prior to entering it
12

The Secretary notes, in a footnote in her brief, that there was no physical barrier
preventing entry to the Affected Area by persons approaching from the tailgate travelway. Sec.
435

for the inspection, and the Secretary does not contend that any San Juan miners or other persons
were in the Affected Area on November 10, 2003, other than in conjunction with the inspection
and any remedial measures generated as a result of issuance of the citation. I find that, in the
absence of the Secretary's intervention, no person would have worked or traveled in the Affected
Area on November 10, 2003.
The Secretary counters that dangering off is "a temporary measure designed to prevent
access to a dangerous atea until the hazard can be eliminated, which must be undertaken
immediately," and that dangering off "is prohibited in this case." 13 However, the regulation on
which she primarily relies, 30 C.F.R. § 75.363(a), does not prohibit dangering off an area of poor
air quality. 14 Nor does it compel immediate corrective action under the circumstances presented
here. In fact, section 75.363(a) provides that when San Juan detected low oxygen levels in the
Affected Area, it was compelled to danger it off. Thereafter, the regulation dictates that the
"condition shall be corrected immediately or the area shall remain posted until the hazardous
condition is corrected (emphasis added)." Further immediate actions are required only if the
condition is found to constitute an imminent danger. The condition found on November 10 and,
apparently, on other occasions when low oxygen levels have been found, did not remotely
approach the seriousness of an imminent danger. 15
The Secretary's witnesses, in essence, agreed that it was appropriate to danger off the
area. Vetter sanctioned it as a temporary corrective action, but not a permanent one. Tr. 124-25.

Br. at 23, n. 13. However, any such person would have entered the travel way by the route
designated by San Juan and would have been aware that entry into the Affected Area had been
prohibited. The danger sign would also have been visible from the tailgate travelway.
13

Sec. Reply Br. at 12.

14

§ 75.363

Hazardous conditions; posting, correcting and recording

(a) Any hazardous condition ... shall be posted with a conspicuous danger sign
where anyone entering the areas would pass. A hazardous condition shall be
corrected immediately or the area shall remain posted until the hazardous
condition is corrected. If the condition creates an imminent danger, everyone
except those persons referred to in section 104(c) of the Act shall be withdrawn
from the area affected to a safe area until the hazardous condition is corrected.
Only persons designated by the operator to correct or evaluate the condition may
enter the posted area.
15

Vetter determined that an injury was unlikely, and MSHA extended the time when
abatement was required to November 16, 2003. MSHA's enforcement policy, whereby citations
for low oxygen levels were not issued if some corrective action was underway, also indicates the
relative seriousness of the hazard.
436

He also maintained that dangering off is not an appropriate corrective action for low air quality
because it can't be isolated from the rest of the environment, and because the Affected Area is
part of the return air course that must be inspected weekly. Tr. 124, 159-60. Gibson testified
that it would not only be acceptable to danger the area off, but that it would be required by the
regulation if a hazard were found. Tr. 90, 93-95, 100-01, 104-05.
The Secretary also argues that dangering off the Affected Area is impermissible because
the tailgate travelway is a return air course that must be inspected weekly, and that it must be
maintained as an escapeway. 16 Barring travel through the Affected Area, however, would not
appear to interfere with either of those functions. The route established by San Juan from the
longwall face to the tailgate travel way does not pass through the Affected Area. The main flow
of air also follows that route. 17 That route remained open to travel for escape and inspection
purposes on November 10. San Juan's witnesses testified that all longwall mines have
ventilation problems on the tailgate side, and that MSHA has not enforced the ventilation
standard at several other mines with comparable areas where persons did not work or travel.
Tr. 379-80, 417-21. The Secretary's witnesses maintained that such areas have been considered
part of the tailgate travel way. Tr. 43.
Underlying the Secretary's argument is the contention that, unlike at least some other
hazards, an area with sub-standard air quality cannot simply be dangered off because that action
does not physically isolate or contain the bad air. The contention cannot be disputed. However,
on the facts of this case, any low quality air in the Affected Area is effectively contained by the
characteristics of the air flow, itself. While low oxygen levels have been found on numerous
occasions, there is no evidence that they have migrated out of the Affected Area, or that substandard air has ever been found in adjacent working areas. The quantity of air in the Affected
Area is about 2,000 cubic feet. In contrast, 65,000-100,000 cubic feet of air is being drawn
across the face and out the tailgate travel way every minute. As air in the Affected Area escapes
the localized air flow anomalies that can result in low oxygen levels, it is promptly diluted. The
same is true for any gob air that might seep between shields and the air under the last shield, inby
its legs, where the standard has been made inapplicable by a provision in San Juan's ventilation
plan. Tr. 235.
The Secretary notes that if section 75.32l(a)(l) does not apply in the Affected Area, then
no atmospheric standards would apply and very low concentrations of oxygen and/or very high
concentrations of methane or other gasses could exist without violating any standard. She then
posits that a roof fall in, or adjacent to, the Affected Area, could force any sub-standard air onto

16

See 30 C.F.R. §§ 75.215(a), 75.364(b). To the extent that the Secretary suggests that
dangering off the Affected Area may violate other standards, the merits of such a charge would
have to be decided in a subsequent case.
17

Restrictions in air flow caused by the five-foot-high gob separation plate and other
equipment contribute to the air quality problems in the Affected Area.
437

the working face and/or into the tailgate travel way, exposing persons in those areas, and if high
methane levels were present, ignition sources might be encountered, with potentially disastrous
results. The argument is unconvincing for several reasons.
There is no evidence that explosive concentrations of methane or excessively low
concentrations of oxygen have ever been found in the Affected Area, and there is no reason to
believe that concentrations in a dangered off Affected Area would be any different than the
relatively benign concentrations historically experienced. There is also no evidence that substandard air has been found in areas adjacent to the Affected Area. Assuming that air temporarily
displaced by a roof fall might be forced out of the Affected Area, it is highly unlikely that it
would enter the working area of the face because of the relatively massive quantities of
ventilation air flowing across the face and out the tailgate travelway, which would quickly dilute
it and render it harmless.
All of the electrical and other equipment on the longwall face is maintained in
permissible condition. Two AMS meters are mounted adjacent to the Affected Area, one behind
the legs of the last shield and one in front of the legs of the second to last shield. Those meters
continuously monitor the concentration of methane and alert when concentrations reach one
percent. The alert is visible at the meter and on screens at the headgate controls, and in a control
room on the surface. An alert requires that operations be stopped, and that measures be taken to
address the presence of methane. If methane concentrations reach 1.5%, the longwall equipment
is automatically deenergized. A similar meter is mounted on the shearing machine and
deenergizes the equipment if the concentration of methane reaches 2%. Methane is explosive at
conc·entrations of 5-15%. Tr. 243-45. One potential ignition source identified by the Secretary
would occur if the shearer cut into the tailgate travel way and encountered roof bolts. However,
San Juan's ventilation plan requires that the shearer be stopped ten shields from the tailgate
entry, and that the air in the tailgate entry be checked for the presence of methane before cutting
out to the travelway.

There is no question that roof falls occur, both in and adjacent to the Affected Area.
As noted above, the supported roof of the tailgate travel way falls sporadically as the shields pass.
Fortunately, the falls generally occur inby the Affected Area. There is no evidence that roof falls,
even those that extended into the Affected Area, have ever resulted in sub-standard atmospheric
conditions in the working face or outside of the Affected Area. Assuming that a roof fall could
force air out of the Affected Area into working areas, there is no evidence that dangering off the
Affected Area would increase whatever risk already exists.
The Secretary attempts to draw a comparison with the application of safety standards to
mobile equipment, asserting that deenergizing or tagging out equipment is not sufficient to abate
a violation, citing Eastern Ass. Coal. Corp., 1 FMSHRC 1473 (Oct. 1979) (defective parking
brake violation not abated by danger tag, where equipment was capable of operation and was
located in work area - tag could have been ignored). However, the Commission has indicated
that tagging out a piece of mobile equipment may be sufficient to effectively take the equipment
438

out of service and avoid a violation. See Allen Lee Good, 23 FMSHRC 995 (Sept. 2001);
Mountain Parkway Stone, Inc., 12 FMSHRC 960 (May 1996); Ideal Basic Industries, Cement
Div., 3 FMSHRC 843 (April 1981).
Dangering off an area may be similar, in some respects, to tagging out a piece of mobile
equipment. However, danger signs are universally recognized as a means to identify and
emphasize the existence of a hazardous condition, and are effective measures to bar access to
unsafe areas, a concept recognized in the Secretary's regulations. For example, 30 C.F.R.
§ 75.208 provides that posting a "readily visible warning" (typically referred to as "dangering
off') is sufficient to identify areas of a mine without permanent roof support. Here, Vetter
verified the effectiveness of the danger off sign, and testified that it would have been unlikely
that a miner would have entered the Affected Area on the date in question. Tr. 146-47. Of
course, a miner might ignore a danger sign and proceed into a prohibited area, conceivably even
beyond the imaginary line at the shield legs into the gob. That highly improbable possibility
cannot transform the Affected Area, or the gob, into an area where persons work or travel.
I agree with the parties that the wording of the regulation is plain on its face. It mandates
specified air quality in "areas where persons work or travel." I find that, on November 10, 2003,
the Affected Area was effectively dangered off, and was not an area where persons work or
travel, within the meaning of the regulation. 18
Interpreting the plain meaning of the standard's language in this manner is consistent with
both the design of the regulations and the objective of the Act. The parties have devoted
considerable attention to the announced intent of the 1992 and 1996 amendments to regulations
governing air quality, each arguing that its position is harmonious with that intent and that the
other's is not. The most significant change occurred in 1992, when the Secretary re-formulated
regulations governing air quality to assure that areas where persons worked or traveled were
required to have an atmosphere with at least 19.5% oxygen, specifically extending that
requirement to bleeder entries, which several administrative law judges had found to be not
covered by the previous regulation. Requiring appropriate air quality wherever miners work or
travel, even if infrequently, would be consistent with the regulatory scheme. However, imposing
upon operators a requirement to maintain air quality in areas where no miner or other person
18

I reject the Secretary's "bootstrap" contention that the violation was established by
Vetter's entry into the area and the subsequent entry of other persons to effectuate remedial
measures dictated by the issuance of the citation. Certainly, MSHA inspectors and others are
"persons" within the meaning of the regulation. However, I have found that, absent MSHA's
intervention no one would have entered the Affected Area on November 10, 2003. MSHA
cannot be allowed to create a violation of a standard and saddle Respondent with the
consequences, including the imposition of a civil penalty. I also reject the Secretary's argument
that the history of travel through the Affected Area renders the regulation applicable, even though
it was effectively dangered off on November 10. That travel occurred under markedly different
circumstances.
439

works or travels, would not be. As the Secretary recognized, in.commenting on that part of the
current rule addressing air quality in bleeder entries, "The purpose of this standard is to protect
miners, not to regulate air quality where persons are not exposed." 61 Fed. Reg. 9764, 9776
(1996).
The overriding purpose of the Act is to protect the health and safety of miners.
E.g., Sec'y of Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1437 (D.C.Cir. 1989). Finding the
regulation inapplicable to the Affected Area on the date in question, when no miner or person
would have worked or traveled in it, is consistent with the protective purpose of the Act. Under
the Secretary's interpretation, which has been imposed by MSHA since the longwall began
operating, a preshift examination must be conducted to assess, inter alia, the air quality in the
Affected Area. If the air quality is found to satisfy the standard at the time of the examination,
miners are free to enter the Affected Area during the subsequent shift, and it is clear that many
have done so. 19 However, the air quality in the Affected Area is highly variable. Gibson testified
that the air quality changes rapidly at times. The simple fact of a person stepping into the notch
in the gob separation plate can reduce oxygen levels at points in the Affected Area. Tr. 63, 67,
76, 97. David Hales gave similar testimony, stating that a monitor held stationary in the Affected
Area can go through a range of readings.20 Tr. 344. During the period November 6 to 10,
satisfactory oxygen levels were found during several preshift examinations. Tr. 111.
A finding of sufficient oxygen levels in the Affected Area during a preshift examination
provides virtually no assurance that they will remain in compliance for the next hour, much less
for an entire shift. Vetter testified that the fact that the air in the Affected Area was found to
comply with the requirements of section 75.321(a)(l) during a preshift examination did not mean
that miners were free to enter the area on the subsequent shift. "It may be okay at the conclusion
of the pre-shift or the examination, but it doesn't necessarily mean it's going to remain that way."
Tr. 140. While his position appears to be inconsistent with the preshift examination regulation, it
does confirm the variability of air quality in the area. Categorizing the Affected Area as active
workings, through which miners are free to pass once the preshift examination has been done,
would pose a substantially greater risk of exposing them to sub-standard atmospheric conditions
than if they were prevented from entering the area. The threat of roof falls in the Affected Area
poses an additional danger that would be avoided if entry into the Affected Area were barred.

19

As noted above, the regulation addressing preshift examinations bars entry to areas
that have not been successfully preshifted. See also the testimony of Gibson (Tr. 85) and David
Hales (Tr. 298).
20

The bottle samples taken by Vetter on November 10 produced different results than
those shown only moments earlier on his hand-held monitor. Tr. 113. Gibson has vacated a
citation he had issued for sub-standard air quality in the Affected Area when the air taken in a
bottle sample was found to be in compliance with the standard, a result markedly different from
that that had been shown a little earlier on his hand-held meter. Tr. 63.
440

Conclusion
I find that, on November 10, 2003, the Affected Area was not an "area where persons
work or travel," within the meaning of section 75.321(a)(l). San Juan was not prohibited from
dangering off the Affected Area. Having found a hazardous condition, it was compelled to do so.

ORDER
Citation No. 7605607 is hereby VACATED.

Distribution (Certified Mail):
Timothy M. Biddle, Esq., Crowell & Moring, ILP., 1001 Pennsylvania Ave., N.W.,
Washington, D.C. 20004-2595
Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Blvd., 22nd floor, Arlington, VA 22209
/mh

/

441

appendix: Exhibit C-4 (see footnote 5)

3 Ft. From Rib
3.5 Ft. From Roof
Extends From Extreme
lnby Active Workings To
12 Ft. Outby.
Oxygen Level
1S.5% To 17.3%

~

• /

f

/

/

/
/

l'.--____.l,..:iJ:,..._--L:I.!:===;;"'--' !::==:r~/"

,,,

/ WORKE:O

um m s9s.2000

- ----- - -8 Ft. From Coal Rib
2 Ft. From The Roof
Aligned With Tailgate
· Shield Walkway
Oxygen Level 18 .8 To 19.3%

/

,'

/

/

Separation Barrier

CONCEPTUAL REPRESENTATION FOR 7605607

bhpbilliton

BHP Billiton San Juan Coal Company
Su Juan Underground Hin•
P.O. Box 561 Witerflow, Ntw Hoxico

Parallel
To Shield
Legs

NOTTO SCALE

442

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-35n/FAX 303·844·5268

May 13, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ROBERT H . KINNAMAN,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2003-402-DM
MSHA No. WE MD 03-10
3M Corona Plant

V.

3M CORP.,

Mine l.D. 04-00191
Respondent

ORDER DENYING RESPONDENT'S MOTION TO AMEND
TEMPORARY REINSTATEMENT ORDER
On or about August 25, 2003, the Secretary of Labor filed an application for temporary
reinstatement on behalf of Robert H. Kinnaman against 3M Corp. under section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(2) (the "Act"). On September
18, 2003, I approved the settlement reached by the parties. In the settlement, Respondent agreed
to economically reinstate Kinnaman at his regular rate of pay for 40 hours a week, to pay him for
his average overtime hours, and to continue his benefits.
On April 16, 2004, Respondent filed a motion asking me to reopen this case on the basis
of changed circumstances, as described below. Respondent also requests that I expedite my
consideration of the motion. Although I approved the parties' proposed settlement, I retain
jurisdiction over this proceeding to consider Respondent's motion. See Sec'y of Labor on behalf
of York v. BR&D Enterprises, Inc., 23 FMSHRC 386 (April 2001). On May 5, 2004, the
Secretary filed an opposition to the motion. For the reasons set forth below, the motion is
denied.

I. RESPONDENT'S MOTION AND THE SECRETARY'S OPPOSITION
In its motion, Respondent stated that it recently learned that Kinnaman has been pursuing
permanent disability benefits under the California Workers' Compensation law based on an
injury he suffered in July 2002. It appears that Kinnaman's right hand was injured in July 2002
when he and another worker were moving a piece of heavy equipment with a crane. Apparently,
when they set the equipment down in the work area, part of Kinnaman' s right hand was injured.
(Motion, Ex. 3, p. 2). Surgery was performed on his little finger and he was off work for a few
months. He subsequently returned to his regular duties at the Corona Plant. On January 15,
2004, a workers' compensation medical examiner, who is a physician, found Kinnaman's
condition to be "permanent and stationary" and he placed Kinnaman under work restrictions.
443

Among other conditions, the examination revealed that "there was very little movement in the
proximal interphalangealjoint" and Kinnaman coul<;l n_o t "make a full grip with his right hand."
Id. at p. 7. The medical examiner precluded Kinnaman from "repetitive gripping, grasping and
repetitive manipulation" with his right hand. Id. at p. 8. The examiner further stated that, if the
employer is unable to accommodate the work restriction, then Kinnaman .would be eligible for
vocational rehabilitation. Id.
By letter dated February 18, 2004, Kinnaman was notified by his workers' compensation
provider that he was eligible for permanent disability benefits·as a result of this injury effective
November 20, 2003, the date he was examined by the medical examiner. (Motion, Ex. 4). It
appears that Kinnaman is entitled to workers' compensation payments of $160 per week until a
total amount of $6,500 has been reached. Id.
Respondent contends that the examiner's restrictions cannot be accommodated. It states
that the job of Maintenance Mechanic requires the ability to use both hands repetitively while
lifting or working on heavy objects: As a consequence, ~espondent argues that Kinnaman is
physically unable to perform the duties of his position of Maintenance Mechanic. Respondent
maintains that, by receiving workers' compensation benefits in addit_ion to his pay under the
economic reinstatement settlement, Kinnaman is earning more money than he would if he were
still working at the plant, thereby unjustly·enriching him. It states that if Kinnaman were
wor~ng a~ the plant, he would have been placed on a medical leave of absence without pay
effective January 15, 2004, as a result of the permanent disability determination.
.

.

Respondent asks that my decision approving settlement dated September 18, 2003, be
modified to eliminate all pay and benefits for Kinnaman, effective Ja~uary 15, 2004,_except those
benefits he would have been entitled to if placed on a medical leave of absence on that date.
Respondent also asks that Kinnaman be required to reimburse Respondent for all monies it paid
him since that date because of his failure to inform Respondent of the medical examfoer's
'
findings· and the status of his workers' compensatfon claim.
The Secretary maintains that there is no·authority to support Respondent's assertion that
Kinnaman is not entitled to receive $6,500 from workers' compensation while receiving his ·
earnings under my order approving temporary reinstatement. She also contends ~hat there is no
support for Respondent's claim that Kinnaman could not return to his regular ·duties at the plant
with work r:estrictions. The recqrd shows that he worked for Respondent as a Maintenance
Mech~i9 from October 12, 2002, after returning from his surgery, until June 30, 2003, when he
was separated from his employment. The Secret.ary states that, because the work restrictions are
so minimal, there is no basis for Respondent's assertion that they could not be accommodated.
She observes t_hat if the motion is granted, ~nnaman would OJ?lY have the $6,500 workers'
compen&ation ben~fits to live on during the pendency pf the underlying discrimination case. 1.

· r The underlying discrimibation case was filed by the Secretary with the Commission in

April 20d4 and was assigned to me· on May 3; 2004. Sec'y of Labor on behalf of Kinnaman et al.
444

The Secretary maintains that, if a doctor determines tha~ an employee's injury is
permanent and that it will not improve with additional care (i.e., stationary), he is entitled to
benefits. These benefits are not an income substitute but are "to compensate the injured worker
for the permanent damage suffered as a result of the industrial injury." (S. Opposition, 3). Thus,
the Secretary argues that permanent disability benefits are analogous to a personal injury award
in a tort claim. Under California law, an injured employee does not have to be out of work to
receive permanent disability benefits. Once an injured employee returns to work, he is entitled to
his disability benefits as well as the wages he earns.
The Secretary also argues that there is no evidence that Respondent could not
accommodate Kinnaman's work restrictions. The work restrictions are rather moderate.
Kinnaman is left handed and he worked at his regular job for over eight months before he was
separated from his employment at the plant.
Finally, the Secretary contends that granting Respondent's motion would defeat the
underlying purpose of temporary reinstatement because K.innaman's income would be
significantly reduced. A miner should not be forced to endure a reduction of income while his
discrimination complaint is being litigated.

II. ANALYSIS
I agree with the arguments presented by the Secretary. Congress enacted the temporary
reinstatement provision of section 105(c) because "complaining miners may not be in the
financial position to suffer even a short period of unemployment or reduced income pending the
resolution of their discrimination complaint." (S. Rep. 95-181, at 37, reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 625 (1978)). It would be unfair to Kinnaman to suffer a reduction in
income because he has a permanent partial disability. Indeed, if the motion were granted,
Respondent would receive a windfall because it would no longer be required to pay Kinnaman
his wages as Respondent committed to in the parties' "Settlement Agreement and Motion for
Temporary Reinstatement."
The workers' compensation payments are to compensate him for his disability, which
appears to be a loss of 30% of the use of his right hand. (S. Opposition, 3). "Temporary"
disability benefits serve as a wage replacement when an employee is injured and cannot return to
work. These benefits terminate when an employee is able to return to work, with or without
restrictions. "Permanent" disability benefits are available only after a physician has certified that
an employee's injury is permanent and stationary. These benefits are not an earnings substitute;
rather they compensate the individual for the impairment of function after maximum recovery
from the industrial accident. See, Calif. Dept. of Rehab. v. Workers' Comp. Appeals Bd., 70 P.3d
1076, 1081-83 (2003). In this instance, the physician determined that Kinnaman could continue

v. 3M Company, WEST 2004-214-DM

445

working with certain restrictions. Respondent should not enjQy a windfall as a result of
Kinnaman' s partial disability and Kinnaman should not be required to suffer a loss of income.
It is also important to consider the fact that Respondent voluntarily agreed to
economically reinstate Kinnaman. Although I have the authority to reopen this case and modify
my decision approving the parties' settlement, I believe that such modifications should be made
only in exigent circumstances. Respondent has not demonstrated a compelling need to modify
the parties' settlement.· Respondent argues that, if Kinnaman were working at the plant, it would
not be able to accommodate his work restrictions. Respondent's argument is simply a bald
assertion without any evidence to support it. More importantly, even if Respondent's assertion is
true, it is largely irrelevant. Kinnaman was not working at the plant because he was receiving
economic reinstatement as agreed to by the Respondent and his income should not be reduced
while the underlying discrimination claim is adjudicated. Reducing his income would defeat the
purpose of the temporary reinstatement provisions of section 105(c ).
Although unemployment benefits are not entirely analogous, it is interesting to note that
the Commission has held that an employer is not entitled to offset unemployment benefits that an
employee has received from a backpay award in a discrimination case. The Commission
originally held that unemployment benefits should be deducted from backpay awards. Meek v.
Essroc Corp., 15 FMSHRC 606, 616-18 (April 1993). Commissioner Backley dissented from
that part of the decision. 15 FMSHRC 621-26. In Sec'y of Labor on behalf of Poddy v.
Tanglewood En·ergy, Inc., a majority of the Commission reversed itself and adopted the
reasoning of Commissioner Backley iri Essroc. 18 FMSHRC 1315, 1325 (Aug. 1996).
For the reasons set forth above, the motion of Respondent to reopen this temporary
reinstatement proceeding to modify my decision approving settlement is DENIED. I expect the
parties to proceed expeditiously in the underlying discrimination case. Discovery shall be
initiated and completed·as quickly as possible and settlement discussions shall be initiated. As I
stated·in my preheating order, the parties shall initiate a conference call in that case on or before
June 3, 2004.

Richard W. Manning
Administrative Law Judge

446

Distribution:

Susan Seletsky, Esq., Office of the Solicitor, U.S. Department of Labor, 350 S. Figueroa Street,
Suite 370, Los Angeles, CA 90071-1202 (Fax and First Class Mail)
Charles C. High, Jr., Esq., Kemp Smith LLP, P.O. Box 2800, El Paso, TX 79999-2800 (Fax and
First Class Mail)

RWM

447

FEDERAL MINE SAFETY AND HEALTH REVIEW COM1\1ISSION
OFFICE OF ADMlNJSTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001
May 18, 2004
BECON CONSTRUCTION, INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEST 2001-204-RM
Citation No. 7994802; 01/02/2001

V.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH,
ADMlNJSTRATION, MSHA
Respondent

Lebec Cement Plant
Mine ID 04-00213 AF6

MORTON ENGINEERING AND
CONTRACTING, INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEST 2001-226-RM
Citation No. 7994802; 01102/2001

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

Lebec Cement Plant
Mine ID 04-00213 8FQ
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2002-147-M
A.C. No. 04-00213-05502 AF6

v.
BECON CONSTRUCTION COMPANY,
Respondent

Lebec Cement Plant

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH,
ADMlNJSTRATION, MSHA

CIVIL PENALTY PROCEEDING
Docket No. WEST 2002-164-M
A.C. No. 04-00213-05504 8FQ

v.
MORTON ENGINEERING &
CONSTRUCTION, INC.,
Respondent

Lebec Cement Plant

448

ORDER DENYING MOTION TO COMPEL
The stay in these consolidated contest and civil penalty proceedings was continued on
February 26, 2004, pending the disposition of the civil litigation associated with the subject
October 26, 2000, overhead trolley accident. During the course of a February 25, 2004,
telephone conference, the parties advised that the wrongful death case was resolved. However,
personal injury cases have not been completed. Since testimony in these administrative
proceedings can have an impact on the civil litigation, the stay in these matters has remained in
effect until all relevant civil litigation is complete.
Written discovery has proceeded during the stay. On April 9, 2004, Becon Construction
Company, Inc. ("BECON"), filed a Motion To Compel Further Responses to Interrogatories.•
On April 19, 2004, the Secretary, citing the departure of the formerly assigned counsel, filed a
Motion for Extension of Time until April 29, 2004, to file an opposition to BECON' s Motion to
Compel. The Secretary's request was granted as BECON did not interpose an objection. The
Secretary's Opposition to BECON's Motion to Compel was filed by facsimile on April 29, 2004.
As a threshold matter, citing the Federal Rules Of Civil Procedure Rule 33(b)(4),
BECON asserts the Secretary waived all responsive objections and privileges to interrogatories
because she did not serve her answers until July 5, 2002, although she was only granted an
extension to respond until June 28, 2002. In response, the Secretary contends, on or about June
27, 2002, former Secretary's counsel Jason Vorderstrasse contacted the office of Kevin
McNaughton, BECON's counsel, to request a brief extension of time. Vorderstrasse reportedly
was advised by McNaughton's secretary that McNaughton was on vacation until July 8, 2002.
Vorderstrasse mailed the Secretary's interrogatory response on July 5, 2002. In support of her
opposition to BECON's waiver of privilege assertion, the Secretary has submitted an affidavit of
Vorderstrasse .
BECON responded to the Secretary's Opposition on May 12, 2004. BECON asserts that
Vorderstrasse's initial request for an extension of time was untimely because it occurred via a
voice message left at McNaughton's office on July 1, 2002. BECON provided an affidavit of
Jackie Betts, McNaughton's secretary, indicating that although she recalled speaking to
Vorderstrasse on July 1, 2002, during which time Mcnaughton was on vacation, she did not grant
Vorderstrasse an extension of time to respond to BECON' s interrogatories.
Vorderstrasse's account of his inability to contact McNaughton during the July 4 holiday
season is not contested. Moreover, I have consistently liberally granted extensions of time that
were mutually agreeable to all parties. Surely, BECON was not prejudiced by the brief delay of
Secretary's interrogatory response, particularly during a period when McNaughton was

1

It is not clear why BECON's waited until April 9, 2004, to file its Motion To Compel
further responses to the Secretary's responses to interrogatories that were mailed on July 5, 2002.

449

vacationing. Moreover, BECON has waited approximately 1lh years to move for further
responses from the Secretary. Civil Procedure Rule 33(b)(4) provides the Judge with the
discretion to excuse untimely objections to interrogatories for good cause shown. Even if I were
to conclude that the Secretary's objections to interrogatories were untimely, the brief delay does
not warrant the extraordinary relief sought by BECON. Accordingly, BECON's request that I
rule that the Secretary has waived objections to interrogatories based on privilege IS DENIED.
With respect to·the Secretary's assertions of privileges, BECON poses a series of broad
interrogatories that requests the Secretary to identify and/or provide each fact, witness or
document that supports., in whole or in part, the statements in Citation No. 7994801 "that the
trolley was not tracking properly on the rail system prior to the accident" and that it was known
to BECON's site manager that the trolley was not tracking properly.
In response to BECON' s interrogatories, the Secretary identifies Federal and State
officials who are potential witnesses. With respect to other witnesses the Secretary asserts the
miner witness privilege and the informant's privilege. BECON contends that the Secretary has
waived these privileges because the Secretary has published the names of
non-government employees, including miners, who have provided information during the course
of her accident investigation.
The Miner Informant and Witness Privileges
Protecting miners who participate in enforcement proceedings brought by the Secretary
from retaliation is indispensable to the effective administration of the Mine Act as a safety
statute. Sec'y olblo Logan v. Bright Coal Co., Inc. , 6 FMSHRC 2520, 2524, 2526.
In this regard, Commission Rule 61 provides that, absent extraordinary circumstances,
a Judge shall not order the disclosure of the name of a miner who is an informant. 29 C.F.R. §
2700.61. Commission Rule 62 prohibits the disclosure of the identity of a miner witness until
two days before a scheduled hearing. 29 C.F.R. § 2700.62.
BECON argues the Secretary has waived these privileges by publishing the names of
miners who she has interviewed. This type of assertion was rejected in Hodgson v. Charles
Martin Inspectors of Petroleum, Inc., 459 F.2d 303 (5th Cir. 1972), wherein the Court stated:
Knowing the identity of persons who have given statements to the Secretary is not
equivalent to knowledge of which of those persons were informants within the
context of the privilege. Only when the content of the statement is disclosed will
it be revealed whether the information was given reluctantly or voluntarily,
whether the tone and manner in which it was given was friendly to the defendant
or unfriendly, and whether it was accusatory or favorable. In short, if the
employee is not known to the defendant as an informer but merely a statement
giver, then disclosure of the statement might reveal him as an informer.

450

459 F.2d at 306.
To provide statements of miners simply because a mine operator is aware that a miner is a
statement giver would eviscerate the miner protections provided in Commission Rules 61 and 62.
The miner witness privilege is an unqualified privilege. However, the miner informant's
privilege is a qualified privilege that can be overcome by a showing of substantial need. A desire
to use informant statements for impeachment purposes is not an adequate basis for defeating the
privi lege. Significantly", BECON can depose any individual identified by the Secretary. BECON
has failed to demonstrate the extraordinary circumstances that are necessary to defeat the
privilege. Accordingly, BECON's Motion to Compel the disclosure of miners' statements IS

DENIED.
The Informant's Privilege With Respect to Non-Miners
BECON has not specifically articulated the identity of non-miner statements, if any, that
it seeks from the Secretary. Accordingly, leave is granted for BECON to request the production
of statements obtained by the Secretary from non-miners. BECON should specifically state the
basis for its knowledge that statements were taken, the basis for its interest in such statements,
and, its understanding, if any, of the nature of the subject matter of such statements. If the
Secretary asserts the informant's privilege, I may review the statements in camera.
The Work Product and Deliberative Process Privileges

In her Opposition to BECON's Motion to Compel, the Secretary identified a variety of
special investigator field notes, a special investigation report, notes from a health and safety
conference and memoranda of interviews that she claims are protected, in whole or in part, by the
work product and deliberative process privileges. As a general proposition, investigative field
notes, case analysis, memorandum or summary of interviews prepared by or for
a party in anticipation of litigation are protected by the work product privilege. See, e.g.,
Consolidation Coal Company, 19 FMSHRC 1239 (July 1997). Intra-agency memorandum oremail communications that are "consultative" in nature, in that they contain advisory opinions,
recommendations and deliberations, are protected by the deliberative process privilege. Id.
BECON has not articulated why it objects to the Secretary's assertion of privilege with
respect to each specific document. Nor has it shown an overriding need for any document.
Accordingly, leave is granted for BECON to supplement its Motion to Compel by specifically
identifying each document it seeks to compel the Secretary to provide, providing specific
assertions why the claimed privilege should not apply to each document. If necessary, I will
review documents in camera to resolve any privileges asserted by the Secretary. If BECON
seeks to overcome privilege by a showing of substantial need and undue hardship, it should
provide an individual showing for each document. P. & B. Marina, Ltd. Partnership v.
Logrande, 136 F.R.D. 50, 57 (E.D.N.Y. 1991), aff d, 983 F.2d 1047 (2°d Cir. 1992).

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ORDER
As discussed above, BECON' s Motion to Compel the statements of miners
IS DENIED. With- respect to the production of specific non-miner witness statements, leave is
granted for BECON to serve upon the Secretary such request within 21 days of this Order. The
Secretary shall have 14 days to reply to BECON's request.
With respect to·all other documents, leave is granted for BECON to file, within 21 days
of this Order, a supplemental motion to compel that challenges the specific privileges asserted by
the Secretary and/or demonstrates a compelling need that overcomes the asserted privilege.

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
Kevin J. McNaughton, Esq., Schaffer & Lax McNaughton & Chen, 515 South Figueroa Street,
Suite 1400, Los Angeles, CA 90071 (Counsel for Becon)
John S. Lowenthal, Esq., Lewis, Brisbois, Bisgaard & Smith LLP, 650 East Hospitality Lane,
Suite 600, San Bernardino, CA 92408 (Counsel for Morton)
Pamela W. McKee, Esq., Associate Regional Solicitor, U.S. Department of Labor,
World Trade Center, 350 South Figueroa Street, Suite 370, Los Angeles, CA 90071-1202
/hs

452

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U.S. GOVERNMENT PRINTING OFFICE: 2004 305-032115905