DECEMBER 1997

CQMMISSION DECISIONS
12-16-97 Williams. Natural Gas Company

CENT 96-124-M

Pg. 1863

WEVA 97-144 - D
CENT 97 - 60 - M

Pg . 1873
Pg . 1875

KENT 98-48-D
WEST 97-293-M
WEVA 94-347-R
LAKE 97-5
LAKE 97 - 37 - RM

Pg.
Pg .
Pg.
Pg.
Pg.

CENT 97-198-M

Pg. 1927

ADMINISTRATIVE LAW JUPGE DECISIONS
12-02-97
1 2 - 04 - 97
12 - 04-97
12 - 17 - 97
12 - 17 - 97
12-23-97
12-29-97

Matthew J . Matics v. Coalfield Services
Arrow Crushed Stone, Inc .
Sec. Labor on behalf of Jerry Caudill
v. Leece, Inc.
Newmont Gold Company
Laurel Run Mining Company
Consolidation Coal Company
Empire Iron Mining Partnership

1884
1889
1891
1897
1912

APMINIST&ATIVE LAW JUDGE ORDERS
11 - 18 - 97 Quapaw Company

i

(

DICIMBBR

1997

Review was granted in the following cases during the month of December;

Secretary of Labor, MSHA v. Windsor Coal Company, Docket No. WEVA ·97-95.
{Judge Koutras, October 27, 1997)
Secretary of Labor, MSHA v. Newmont Gold Company, Docket Nos. WEST 95-434-M,
WEST 95-467-M.
{Judge Manning, October 28, 1997)

Review was denied in the following cases cturing the month of December;

Secretary of Labor, MSHA v. Bob Bak Construction, Docket No. CENT 97 - 61 - M.
{Judge Weisberger, November 3, 1997)
Stillwater Mining Company v. Secretary of Labor, MSHA, Docket No.
WEST 96-281-RM.
(Judge Manning, November 18, 1997)

ii

COMMISSION DECISIONS

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

December 16, 1997

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

v.

CENT 96-124-M
CENT 96-158-M

WILLIAMS NATURAL GAS COMPANY

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

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994){"Mine Act" or "Act"). At issue is whether Williams
Natural Gas Company ("WNG"), an operator of an interstate natural gas pipeline system with
facilities located on mine prope~, is an "operator" within the meaning of section 3(d) of the
Mine Act, 30 U.S.C. § 802(d),2 and whether the Department of Transportation ("DOT") has
preempted thejurisdiction ofthe Department of Labor's Mine Safety and Health Administration
("MSHA") over natural gas pipeline facilities located on mine premises. Administrative Law
Judge Jerold Feldman concluded that WNG is an operator under the Mine Act and that the DOT
1

Commissioner Beatty assumed office after this case had been considered and decided.
A new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1218 n.2 (June
1994). In the interest of efficient decision making, Commissioner Beatty has elected not to
participate in this matter.
2

Section 3(d) of the Mine Act provides:
"operator" means any owner, lessee, or other person who
operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such
mine[.]

30 u.s.c. § 802(d).

1863

regulations do not preempt MSHA jurisdiction. 19 FMSHRC 287 (February 1997) (ALJ). WNG
filed a petition for discretionary review, which the COirunission granted. For the reasons that
follow, we affirm the judge's decision.
I.
Factual and Procedural Back2round

WNG operates an interstate pipeline for transmission of natural gas and owns pipeline
facilities and meter buildings, also referred to as sheds, located on the property of the Independence Quarry and Mill and the Monarch Cement Company, both located in Kansas. 19 FMSHRC
at 287, 291; S. Cross Mot. for Sunun. Dec., Ex. B, Timmons Aff. at 1-2 ("Timmons Aff."). The
Independence Quarry and Mill and Monarch Cement Company are mines subject to MSHA
jurisdiction. 3 19 FMSHRC at 288. WNG transports natural gas purchased by the mines, which it
considers to be its customers. ld at 287. WNG exclusively controls the pipelines and buildings,
which are kept locked and to which only WNG has access. Jd at 288; Timmons Aff. ~4. WNG
perfonm all maintenance activities at the sheds, the areas surrounding the sheds, and on the
pipelines. Timmons Aff. ~6. A pipeline carrying hazardous waste operated by a third party is
located about 20 feet above the sheds at the Independence Quarry and Mill. Jt. Stip. 'ji9;
Timmons Aff. ~7. WNG employees visit the meter buildings weekly and "must be ready to
access its pipeline facilities at any time to respond to emergencies." WNG. Mot. for Summ. Dec.
at 5 n.2, I 0. The gas WNG transports to the mines arrives under high pressure. Timmons Aff.
~9. At the WNG meter buildings, the gas is monitored and transformed into quantities and
pressures that are useful in the production process. !d. The mines use .the natural gas transported
by WNG to start large kilns that are necessary to produce cement. Jd at ~8.
On January 23, 1996, MSHA Inspector James W. Timmons visited the Independence
Quarry and Mill and issued Citation No. 4363655 to WNG alleging a violation of30 C.F.R.
§ 56.4101 4 for failing to post signs prohibiting smoking or open flames at its meter buildings
located on mine property. 5 Jt. Stip. 6. The citation charged that "[t]here was dryed [sic]
3

The judge rendered his decision based on cross motions for summary decision. 19
FMSHRC at 287. Stipulations of fact were received in Docket No. CENT 96-124-M, relating to
the Independence Quarry and Mili. However, as the judge noted, the facts of the captioned
dockets are similar, and the parties therefore agreed that "in the absence of specific factual
distinctions raised by either party, the arguments made in CENT 96-124-M shall also apply to
CENT 96-158-M [relating to the Monarch Cement Company)." Jd
4

Section 56.41 01 provides:
Readily visible signs prohibiting smoking and open flames
shall be posted where a fire or explosion hazard exists.

30 C.F.R. § 56.4 101.
s The citation alleges the existence of four WNG buildings, but the parties later stipulated
that the violation relates to two natural gas pipeline meter buildings. Jt. Stip. 6.

1864

vegetation and other combustables [sic] in and around the buildings" and that "[t]he meter
houses were approximately 10 feet from a walkway and a roadway." S. Pet. for Assessment of
Civl Penalty, July 15, 1996, Ex. A. The citation as originally issued alleged that the violation
was not significant and substantial ("S&S").6 MSHA later proposed a civil penalty of $69. !d.
On April 8, 1996, Inspector Timmons visited the Monarch Cement plant and issued
Citation No. 4357036 to WNG alleging a similar violation of section 56.4101. Timmons Aff.
~10. The citation charged that "[t]here was a person observed smoking in the area at the time of
inspection" and that "employee cars and trucks [are] parked ... approximately [five feet] from
(the pipeline]." S. Pet. for Assessment of Civil Penalty, Sept. 12, 1996, Ex. A. The Secretary
proposed a peJ1alty of $50 for this violation. !d.
In its answers, WNG admitted the absence of warning signs at all four buildings at both
· mines. WNG Ans., Aug. 12, 1996, at 2; WNG Ans., Sept. 30, 1996, at 2. WNG disputed that a
·
fire or explosion hazard existed. !d.
The judge framed the dispositive issue as "whether WNG' s provision of natural gas
through its meter buildings and pipeline facilities located on mine property constitutes the
requisite 'performance of services' at a mine by an independent contractor[,]" thereby subjecting
the contractor to MSHAjurisdiction under section 3(d) of the Mine Act. 7 19 FMSHRC at 289.
The judge stated that the federal courts of appeals are split as to the correct interpretation of the
independent contractor-operator language contained in section 3(d). 19 FMSHRC at 289. He
contrasted the ostensibly narrow interpretive approach taken by the Fourth Circuit in Old
Dominion Power Co. v. Secretary of Labor, 772 F .2d 92 ( 1985), with the broad, plain language
approach of the courts of appeals in Otis Elevator Co. v. Secretary of Labor, 92I F .2d 1285
(D.C. Cir. I990), aff'g II FMSHRC 1896 (October 1989) ("Otis f') and 11 FMSHRC 1918
(October 1989) ("Otis If'), and loy Technologies, Inc. v. Secretary ofLabor, 99 F.3d 991 (1Oth
Cir. 1996), aff.'g I7 FMSHRC 1303 (August 1995), cert. denied,_ U.S._, 137 L.Ed.2d 818,
117 S.Ct. 169i (1997). !d. at 289-91. Noting that "the mine sites in these proceedings are
located ... within the appellate jurisdiction of the Tenth Circuit[,]" the judge viewed Joy
Technologies, rather than Old Dominion, as "the controlling case law[.]" !d. at 291. Based on

6

The S&S terminology is taken from section 104(d)(1) ofthe Act, 30 U.S.C.
§ 814(d)( 1), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
7

The judge erroneously found that "(t]he likelihood of explosion is not in issue because
the violations in question have been designated as nonsignificant and substantial." 19 FMSHRC
at 288 n.l. In fact, MSHA modified Citation No. 4363655 on February 15, 1996, to allege an
S&S violation based on results of a test indicating an explosive atmosphere in and around one of
the WNG buildings. S. Pet. for Assessment of Civil Penalty, July 15, 1996, Ex. A. However, the
Secretary has not appealed the non-S&S finding to the Commission; accordingly, we do not
address the likelihood of explosion.

1865

the stipulations that WNG "maintains meter buildings and pipeline facilities on mine property
through which it provides natural gas energy to mine operators[,]" and WNG's admission that it
is an independent contractor, the judge concluded that, under Joy Technologies, WNG is an
operator subject to Mine Act jurisdiction. !d. In addition, he rejected WNG's argument that it
did not provide "significant services" to the mines, characterizing WNG' s provision of natural
gas for mining operations as "significant, if not indispensable, services that are fundamental to
·
the extraction process." !d. at 291-92.
The judge rejected WNG's claim that DOT regulation ofWNG's interstate natural gas
pipelines preempted MSHAjurisdiction over WNG. 19 FMSHRC at 292. He assessed civil
penalties of $119 for both violations. !d. at 293.
II.
Disposition
A.

Whether WNG is an Operator

Relying on Old Dominion, WNG argues that it is not an operator under the Mine Act.
PDR. at 2-4.8 WNG contends that the Secretary failed to satisfy the Old Dominion criteria. !d.
at 2-3. WNG criticizes the judge's reliance on the appellate court decisions in Oris Elevator and
Joy Technologies. !d. at 3-4. In the alternative, WNG argues that, even under Joy Technologies,
it does not provide significant services required for a finding of operator status. !d. at 4-5.
The Secretary responds that the judge correctly found WNG to be an operator un~er the
courts of appeals' Oris/Joy rationale. S. Br. at 8-9. The Secretary points out that the only two
circuits to which an appeal from this case can be taken, the Tenth and D.C. circuits, have both
held that section 3(d) includes within its ambit "any independent contractor performing services .
. . at [a] mine." ld. at 8, 9 n.6, ciling Joy, 99 F.3d at 999-1000. She urges the Commission to
adopt the Otis/Joy framework. ld. at 8-9. The Secretary also contends that the judge properly
rejected WNG · s argument that it does not perform "significant services" at the mines. I d. at 1012. In the alternative, the Secretary argues that WNG satisfies the requirements for operator
status under the tests used by both the Commission and the Fourth Circuit. ld. at 13-17.
Section 3(d) of the Mine Act expanded the definition of"operator" contained in the
Federal Coal Mine Health and Safety Act of 1969,30 U.S.C. § 801 et seq. (1976) (amended
1977), to include "any independent contractor performing services or construction at such mine."
We conclude that WNG tails within the broad scope of the term "operator" under the analysis

8

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

1866

adopted by the courts of appeals for the D.C. and Tenth Circuits, which have appellate juris- .
diction in this matter.9
·

In its opinion affirming in result the Commission's decision in the Otis Elevator Co.
cases, the D.C. Circuit based its analysis on a strict reading of section 3(d). Referencing that
section's definition of"operator" as "'any independent contractor performing services or
construction at [a] mine[,]". the court stated: "We think that ... phrase ... means just that- any
independent contractor performing services at a mine." 921 F.2d at 1290 (footnote omitted); see
30 U.S.C. § 802(d). The court explicitly rejected the Old Dominion approach limiting section
3(d) to contractors involved in the extraction process who have a "continuing presence" at the
mine. 921 F.2d at 1290. The court found these limitations contrary to the express terms of
section 3(d), and was not persuaded by the legislative history relied upon by Old Dominion. 921
F.2d at 1290-91. For the same reasons, the D.C. Circuit also rejected what it termed "the
Commission's diluted version of the Old Dominion criteria," i.e., the limitation that "section 3(d)
extends to an independent contractor only if it provides a service sufficiently related to the
extraction process and only if it maintains a presence in a mine that is neither rare nor infrequent." Jd. at 1290. In its decision on appeal in Joy, the Tenth Circuit adopted the D.C. Circuit's
approach and rejected both the Old Dominion framework and the Commission's Otis test. Joy
Technologies, 99 F.3d at 999. 10
Application of the approach of the Tenth and D.C. Circuits supports the judge's determination that WNG is an operator. WNG does not dispute that it is an independent contractor. See
19 FMSHRC at 291. WNG was clearly performing a service on mine property- assuring the
delivery of natural gas to the mines and transforming the natural gas into quantities and pressures
required to start large kilns necessary to produce cement at the mines. We therefore affirm the

9

See 30 U.S.C. § 816(a)(l).

10

As set forth in his concurring opinion in Joy, 17 FMSHRC at 1311, Commissioner
Marks believes that the D.C. Cir~uit approach in Otis, that has been followed by the Tenth
Circuit in Joy, is the most reasoned approach to interpreting the term "operator" under section
3(d) of the Mine Act, and would adopt that approach in all cases before the Commission. Like
those court~ of appeals, Commissioner Marks rejects both the Old Dominion framework and the
_Commission's Otis test. Commissioner Marks also disagrees with the concern of Commissioners Riley and Verheggen (at n.11) that the Tenth and D.C. Circuit approach does not include a de
minimis limitation on independent contractor liability. As discussed in his Joy opinion, 17
FMSHRC at 131 f, the D.C. and Tenth Circuits expressly provide for and leave open the question
of whether there may be a point at which an independent contractor's "contact with a mine is so
infrequent or de minimis that it would be difficult to conclude that services were being performed." Otis, 921 F.2d at 1290 n.3 (citation omitted); see also Joy, 99 F.3d at 1000.

1867

judge's conclusion that WNG is an operator based on the rationale of the Tenth and D.C. circuits
only insofar as this matte:- arises within the appellate jurisdiction of those circuits. 11
We reject WNG's argument that the Tenth Circuit decision in Joy is distinguishable
because in that case the contractor was performing "significant services." First, the Tenth~s
Circuit's "operator" test does not require proof that "significant" services were performed. As
the Secretary points out, S. Br. at 10 n.7, the Tenth Circuit discussed "significant services" only
in the context of addressing Joy's contention that it was not an independent contractor, a status
WNG does not dispute. The court made clear that it found Joy to be an operator because its
representative "performed services at the mine." 99 F.3d at 1000. In any case, substantial
evidence supports the judge's finding that WNG's services are "significant, if not indispensable,"
in that production of cement apparently cannot take place without them.

11

Commissioners Riley and Verheggen are unwilling to accept the approach ofthe Tenth
and D.C. circuits any further than their Otis and Joy decisions cQntrol the outcome of this
particular case, arising as it does within the appellate jurisdiction of those circuits. They choose
not to abandon the Commission's Otis cases, which set forth a two-pronged test for determining
whether an independent contractor is an operator under section 3(d). First, the Commission
examines the independent contractor' s "proximity" to the mining process and whether its work is
"sufficiently rdated'' to that process. Otis I, 11 FMSHRC at 1902. Second, the Commission
examines "the exterit of (the contractor's] presence at the mine." !d. Commissioners Riley and
Verheggen are particularly unwilling to abandon the holding in Otis I that "there may be a point .
. . at which an independent contractor's contact with a mine is so infrequent or de minimis that it
would be difficult to conclude that services were being performed." !d. at 1900-01 (quoting
National Indus. Sand Ass 'n v. Marshall, 601 F.2d 689, 701 (3d Cir. 1979)). Such a de minimis
limitation on independent contractor liability is difficult to reconcile with the Otis and Joy
decisions of the Tenth and D.C. circuits. See Otis, 921 F.2d at 1290 & n.3; Joy, 99 F.3d at 1000.
As to whether WNG's presence at the quarries was sufficient to satisfy the Commission' s
Otis test, Commissioners Riley and Verheggen agree with the judge's characterization ofWNG's
provision of natural gas to the quarries as a "significant, if not indispensable, service[] that [is]
fundamental to the extraction proces.s ." See 19 FMSHRC at 291 . They also find that,.in light of
the weekly visits by WNG employees to the meter buildings located on mine property, WNG's
presence at the quarries was both frequent and highly significant. They thus conclude that
WNG's presence at the quarries satisfies both prongs of the Commission's Otis test.

1868

(

B.

Preemption

We reject WNG's argument that MSHA regulations are preempted by DOT regulation of
interstate natural gas pipelines. WNG provides no statutory or case law support for this
proposition. United Gas Pipeline Co. v. Terrebonne Parish Police Jury, 319 F.Supp. 1138, 1140
(E.D. La. 1970), and Tenneco Inc. v. Public Serv. Comm 'n, 489 F.2d 334, 336 (4th Cir. 1973),
both cited by WNG, held that the Natural Gas Pipeline Safety Act of 1968 preempted state
establishment and enforcement of safety standards related to interstate transmission of gas by
pipeline. Neither case stands for the proposition that DOT regulations preempt regulations of
other federal agencies that may affect interstate gas pipelines in some way. Moreover, the Mine
Act contains no language akin to section 4(b)( 1) of the Occupational Safety and Health ("OSH")
Act, 29 U.S.C. § 653(b)( 1), which expressly preempts regulations issued under the OSH Act
where "other Federal agencies" have "exercise[d) statutory authority to prescribe or enforce
standards or regulations affecting occupational safety or health." And WNG has not cited
language in the federal pipeline safety laws preempting regulations issued by other federal
agencies. In this cormection, we note that the specific preemption provision contained in the
existing federal pipeline safety statute, 49 U.S.C. § 60104(c) (1994), preempts only state safety
standards " for interstate pipeline facilities or interstate pipeline transportation." It does not
preempt federal safety standards applicable to mines.12

12

Also, as the Secretary points out (S. Br. at 21), DOT's regulations governing prevention of accidental ignition do_not appear to conflict with MSHA' s regulations. Title 49 C.F.R.
§ 192.751(c) requires the operator to "[p]ost warning signs, where appropriate," in order to
"minimize the danger of accidental ignition of gas in any structure or area where the presence of
gas constitutes a hazard of fire or explosion." See Panhandle Eastern Pipe Line Co. v. Madison
County Drainage Bd, 898 F. Supp ..1302, 1315 (S.D. Ind. 1995) (federal pipeline safety law did
not preempt state statute authorizing relocation of pipeline where operator could comply with
both state and federal requirements).

1869

J.

III.
Conclusion
For the foregoing reasons, we affirm the judge's decision.

;(!_

'

~~rdan,Ch~
Marc Lincoln Marks, Commissioner

1870

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd, Suite 400
Arlington, VA 22203
Stephen Schroeder, Esq.
Jay V. Allen, Esq.
The Williams Companies, Inc.
P.O. Box 2400
4100 One William Center
Tulsa, OK 74102
Administrative Law Judge Jerold Feldman
Federal Mine Safety and Health Review Conunission
Office of the Administrative Law Judges
2 Skyline, 1Olh Floor
5203 Leesburg Pike
Falls Church, VA 22041

.•

1871

1872

ADMINISTRATIVE LAW JUDGE DECISIONS

·'

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

DEC
MATIHEW J. MATICS,
Complainant
v.
COALFIELD SERVICES, INC.,
Respondent

2 1997
DISCRlMINATION PROCEEDING
Docket No. WEVA 97-144-D
MSHA Case No. HOPE CD 97-07
Mine ID No. 46-08436
Upper Big Branch South Mine

DECISION
Appearances:

Matthew J. Matics, Handley, West Virginia, prose;
E. Forrest Jones, Jr., Esq., Albertson & Jones, Charleston,
West Virginia, on behalf of Respondent.

Before:

Judge Bulluck

This case concerns a discrimination proceeding filed pursuant to Section 105(c)(3) of~e
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (c)(3). Matthew J. Matics alleges
that he was unlawfully laid off by Coalfield Services in October 1996, and seeks reinstatement
to his job and back pay.
A hearing on the merits was convened on October 28, 1997, in Charleston, West Virginia.
At the hearing, the parties entered into a settlement agreement whereby Coalfield Services agreed
to pay to Matics the sum of $4,000.00, and Matics agreed to withdraw his discrimination
complaint. The settlement was accepted at hearing. That determination is hereby confirmed.
Coalfield Services has provided documentation that, in accordance with the settlement
agreement, it has paid Matics $4,000.00.

ORDER
The settlement is appropriate and is in the public interest. WHEREFORE, the approval
of settlement and withdrawal of discrimination complaint are GRANTED, and Coalfield
Services h~ving fully complied with the terms of the settlement, this proceedings is
DISMISSED.

/7 1-nuLfL:U, ~~.._tt_,Jv

~~;.~ R Bulluck

Administrative Law Judge

1873

Distribution:

Mr. Matthew Matics, P.O. Box 74, Handley, WV 25102 (Certified Mail)
E. Forrest Jones, Jr., Esq., Albertson & Jones, Nwnber 13, Kanawha Blvd., W., Suite 200,
P.O. Box 1989, Charleston, WV 25327 (Certified Mail)

Mr. Chris Aker, Superintendent, Coalfield Services, Inc., Rt. 2, P.O. Box 365, Wytheville, VA
24382 (Certified Mail)

·

\mea

1874

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

DEC 4 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CnnLPENALTYPROCEEDINGS
Docket No. CENT 97-60-M
A . C. No. 41-03717-05511

v.
ARROW CRUSHED STONE, INC.,
Respondent

Docket No. CENT 97-128-M
A . C. No. 41-03717-05512
Blwn Quarry
DECISION

Appearances: Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas, and Ronald M. Mesa, Conference and Litigation Representative,
Mine Safety and Health Administration, U.S. Department of Labor, Dallas, Texas,
for the Petitioner;
John Whitehorn, Vice President, Arrow Crushed Stone, Inc., Cleburne, Texas,
for the Respondent.
Before:

Judge Feldman

These proceedings concern petitions for assessment of civil penalties filed by the
Secretary of Labor against the respondent pursuant to section 110(a) of the Federal Mine Safety
and Health Act of 1977 (the Act), 30 U.S.C. § 820(a). The petitions seek to impose a total civil
penalty of$651.00 for eight alleged violations of the mandatory safety standards in 30 C.F.R.
Part 56 of the regulations. Six of the eight alleged violations were designated as non-significant
and substantial (non-S&S) violations. These matters were heard on November 5, 1997, in
Cleburne, Texas. John Whitehorn, Vice President of Arrow Crushed Stone, Inc., (ACS),
appeared on behalf of the respondent corporation. The parties stipulated that ACS is a mine
operator subject to the jurisd~ction of the Act
At the hearing, ACS withdrew its contest of the $50.00 civil penalty proposed for Citation
Nos. 785293 and 785294 in Docket No. CENT 97-128-M. Thus, six citations remained for
disposition. At the hearing, the parties were advised that I would defer my ruling on these
citations pending post-hearing briefs, or, issue a bench decision if the parties waived their rights
to file post-bearing briefs. The parties waived the filing of briefs. (Tr. 52-53). Accordingly, this
decision formalizes the bench decision issued with respect to each of the contested citations. The
bench decision vacated one citation, affirmed three non-S&S citations, and modified two
citations characterized as significant and substantial by deleting the S&S designation. The total

1875

civil penalty assessed in these matters for the eight citations, including the two citations for
which the contest was withdrawn, is $380.00.

I. Pertinent Case Law and Pepalty Criteria
The bench decision applied the Commission's standards with respect to what constitutes
an S&S violation. A violation is properly designated as S&S in nature if, based on the particular
facts surroWlding that violation, there exists a reasonable likelihood that the hazard contributed to
by the violation will result in an injury or an illness of a reasonably serious nature. Cement.
Division, National Gypsum, 3 FMSHRC 822,825 (Aprill981). InMathies ·Coal Co., 6
FMSHRC 1 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove:
( 1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to (by the violation] will
result in an injury; and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature. 6 FMSHRC at 3-4.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th Cir. 1988), affg 9 FMSHRC
2015, 2021 (December 1987) (approving Mathies criteria).
·
The bench decision also applied the statutory civil penalty criteria in section 11 O(i) of the
Act, 30 U.S.C. § 820(i), to determine the appropriate civil penalty to be assessed. Section llO{i)
provides, in pertinent part, in assessing civil penalties:
the Co~ission shall consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the operator charged,
whether the operator was.negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a
violation.
For penalty assessment purposes, the evidence reflects mitigating factors in that the
respondent is a small to moderately sized operator that does not have a significant history of
violations. (Gov. Ex. 1). The proposed civil penalties will not effect the respondent's ability to
remain in business, and the respondent rapidly abated the cited violations.

1876

II. Findin2s and Conclusions
ACS's Blum Quarry mine is a limestone facility located in Hill County. Texas, where
limestone materials are extracted through the drilling and blasting process. The extracted is then
loaded and hauled to the ·c rusher and screening area where the material is clean~ crushed and
sized. There are approximately nine people employed at the Blum Quarry.
A. Docket No. C~nt 97-60-M
1. Citation No. 4448274
Mine Safety and Health Administration (MSHA) Inspector Melvin H. Robertson
conducted a regular inspection of the Blum Quarry on April 11, 1996. Robertson was
accompanied by Whitehorn. Robertson proceeded to inspect the electrical installations located in
the crusher area. He observed the crusher was powered by a generator. There was a main
disconnect switch at the generator that could be used to de-energize the crusher. The generator
supplied power to an electrical enclosure mounted on stands located approximately 15 feet from
the screening plant. The enclosure consisted of a large box containing starter controls for motors
in the crusher and screening areas and a separate, smaller disconnect box, mounted on the east
end side of the starter control box. The disconnect box was an alternative to -using the generator
disconnect switch as a means of de-energizing the crusher and screen motors. The doors on the
starter box and disconnect box were closed. There were unlocked padlocks hanging on the doors
that could be used to lock out the boxes.
Robertson determined that the disconnect box contained fuses energizing 480 volt
current. Although there were no exposed electrical conductors in the starter box. the fuses in the
disconnect box were connected.to exposed power conductors (wires) in that there was neit.lter
protective insulation nor a face plate installed. Robertson noted the disconnect box did not
contain a switch that automatically de-energized the box when the disconnect box door was
opened. Robertson was concerned that an employee could accidentally contact the exposed
energized wires in the disconnect box when attempting to operate the starter controls, or when
attempting to access the disconnect box.
As a result of his observations, Robertson issued Citation No. 4448274 citing an alleged
violation of the mandatory safety standard contained in section 56.1240,30 C.F.R. § 56.1240.
lhis mandatory standard specifies that, "operating controls shall be installed so that they can be
operated without danger of contact with energized conductors." Robertson opined that the
violation was S&S because of the likelihood of serious or fatal injury in the event an individual
came in contact with this 480 volt cWTent.
The bench decision in Citation No 4448274 focused on the language and intent of the
cited mandatory standard in section 56.1240. This mandatory standard primarily deals with the
exposure of operating controls to energized conductors. Although Robertson was unable to

1877

clearly recall the contents of the larger starter control box, Robertson did not dispute Whitehorn's
testimony that this box contained shielded on-off switches and circuit breaker switches that were
protected by a face plate. Each of the doors on the starter control box and disconnect box were
closed. Given the separate location of the disconnect box on the side of the starter control box, it
is unlikely that anyone opening the door of the starter box to access the operating controls would
be exposed to the exposed conductors in the closed disconnect box. In fact, Robertson
apparently conceded that there was little likelihood of injury in the context of section 56.1240
stating, •J should have used a different standard number and wrote (sic) him two citations
(a separate citation for the fuse disconnect box).• (fr. 47).
Although there was minimal likelihood of injury, the fact that the disconnect box
was not padlocked, nor protected by an automatic shut-off switch engaged when the door was
opened, provides a basis for concluding that contact with the exposed electrical conductors,
while remote, could occur during the operation of the starter control switches. Accordingly,
Citation No. 4448274 is affmned. However, the citation is modified to delete the S&S
designation. Given the reduced gravity of the cited condition, and, in consideration of the other
penalty criteria in section llO(i) of the Act, 30 U.S.C. § 820(i), the $147.00 civil penalty
proposed by the Secretary shall be reduced to $50.00. (fr. 53-55).
2. Citation No. 4448277
After examining the electrical installations, Robertson insJ)ected the quarry area
of the mine. At the time ofhis inspection there was no quarry activity in progress. Robertson
described the mine as a single-bench quarry where vertical holes are drilled, filled with
explosives_, and blasted to loosen the rock. The material is then loaded into haulage trucks by a
front-end loader and transported to the crushing area for processing.
The vertical holes are drilled by a rotary drill. The rotary drill has a large mast with a
drill stem that contains a rotary bit that drills into the earth. The drill is designed with three
hydraulic jacks to stabilize the drill. There is a hydraulic jack located in the front and two
hydraulic jacks in the rear on each side of the drill mast. The jacks are constructed with an upper
cylinder that travels vertically up and down a lower ram. The ram on each hydraulic jack is
designed to sit on a recta.1gular, flat jack plate that ordinarily provides maximum stability.
The subject drill is depicted in a diagram admitted as Joint Exhibit 2.
Robertson observed the rotary drill parked on the bench. The drill was re~g on the
hydraulic jack rams with no rectangular jack plates at the feet of the jacks. Robertson opined that
the lack of jack piates affected the drill's stability and created a tipping hazard that exposed the
drill operator to injury. Whitehorn testified that the jack rams, that have narrow conto~
bottoms, provided greater stability than the flat, rectangular jack pads, because .t he rams dig into
the bench and are superior to jack plates given the unevenness of the quarry floor. As a result of
his observations, Robertson issued Citation No. 4448277 citing a non-S&S violation of section

1878

56.14100(b), 30 C.F.R. § 56.14100(b). This mandatory safety standard requires defects in
equipment to be corrected in order to prevent personnel from exposure to hazards.
The bench decision in this citation noted mitigating circumstances, i.e., uneven terrain
that, in the operator's judgement, made the jack plates unnecessary. While I am sensitive to
ACS's assertion that it was exercising its judgement in this instance, on balance, an operator's
unilateral removal of safety equipment is done at the operator's risk and constitutes a violation of
the cited mandatory standard. The secretary has proposed a $50.00 civil penalty. Given the
mitigating circumstances and low gravity of the cited condition, a civil penalty of$30.00 shall be
imposed. (Tr. 73-75).

In view of the above, the total proposed civil penalty in Docket No. CENT 97-60-M is
reduced from $197.00 to $80.00.
B. Docket No. CENT 97-128-M
1. Citation No. 4453270
Robertson, accompanied by Whitehorn, once again inspected the Blum Quarry facility on
September 24, 1996. Robertson observed a water tank mounted on a Ford F-600 flatbed truck.
The truck was parked in the maintenance yard in the general vicinity of the shop building. The
truck is used for dust control of the roadway haulage areas. The truck was not tagged out of
service. Upon inspecting the truck, ~obertson detennined the manually operated hom had been
removed. He also concluded the parking brake was broken in that it could not be engaged.
With respect to the hom, Robertson issued Citation No. 4453270 citing a violation of the
mandatory standard in section 56.14132(a) that requires manually operated horns on mobile
equipment. Robertson concluded the cited condition was non-S&S.
Whitehorn does not dispute that the hom was inoperable. He stated the truck was
recently purchased and was not in service. Whitehorn, however, admitted the truck was not
tagged out of service. Robertson testified that, during the inspection, Whitehorn did not contend
the truck was not in service.
Although Whitehorn maintains the truck was not in service, it was not tagged out of
service. M9reover, Whitehorn failed to inform Robertson that the truck was not operational
during Robertson's inspecti~n. Although Whitehorn now argues the truck was not being used,
exculpatory statements initially made at trial, and not communicated to the inspector during the
inspection, are afforded little evidentiary weight. Consequently, the bench decision in this matter
affirmed Citation· No. 4453270 as well as the $50.00 civil penalty proposed by the Secretary.
(Tr. 94-95).

1879

2. Citation No. 4453271
As noted above, Robertson also determined the water truck's parking brake could not be
engaged. Whitehorn does not allege the parking brake was operational. As a consequence,
Robertson issued Citation No. 4453271 citing a non-S&S violation of section 56.1410l(a)(2),
30 C.F .R. § 14101 (a)(2). This mandatory standard requires parking brakes capable of holding
mobile equipment with its typical load on the maximum grade it travels. Robertson
characterized the condition as non-S&S because the vehicle typically operated on level groUod,
and, because the vehide could be steered into a bank or benn in the e~ent the parking brake was
applied and failed.
The bench decision noted the importance of a parking brake, commonly referred to as an
•emergency brake." As an emergency brake, a parking brake on a multi-ton vehicle is the
method of last resort if the service brake fails. Defective parking brakes have been contributing
factors in fatal accidents. See, e.g., Fluor Daniel, Incorporated 16 FMSHRC 2049 (October
1994) (ALJ), rev 'd on other grounds, 18 FMSHRC 1143 (July 1996). While I do not agree with
the non-S&S characterization of this condition, an administrative Jaw judge cannot charge an
operator with an S&S violation if the charge has not been brought by the Secretary. Accordingly,
Citation No. 4453271 is affirmed as a non-S&S citation.
With respect to the appropriate penalty to be imposed, the Mine Act requires this
Commission to make independent penalty determinations based upon the statutory penalty
criteria in section 11 O(i) of the Act, despite the civil penalty proposed by the Secretary. See
Sellersburg Stone Co., 5 FMSHRC 287,291-92 (March 1983), affd, 763 F.2d 1147
('J'h Cir. 1984). The Secretary has proposed a $50.00 civil penalty. Taking into consideration
the serious gravity of the defective parking brake condition, a civil penalty of$75.00 shall be
imposed for Citation No . 4453271. Although I have exercised restraint in this negligible
increase in pe~alty, the gravity of an inoperable emergency brake must not be understated.
(Tr. 95-98).
3. Citation No. 7852921
MSHA Inspector Michael A. Davis inspected the Blum Quarry facility on
February 19, 1997. Davis was accompanied by Darrell Hacker, ACS's loader operator. Davis
began his inspection in the shop area where he observed a T erex 7221 B front-end loader that was
undergoing engine repair. Davis inspected the seatbelt inside of the loader's cab. Davis testified
the seatbelt was designed to attach to the floor on each side of the operator's seat by means of a
plate and 1-bolt. The seatbelt portions attached to the floor were then attached to the pedestal
base of the seat through a clevis where these ends were met by, and attached to, a lapbelt.
(See Gov. Ex. 6B, pg. 1 of2). Davis surmised this method of seatbelt install~on provided the
optimum operator protection.

1880

Davis observed the seatbelts were not attached to the seat as originally designed by the
manufacturer. Rather, Davis noted that the seatbelts had been bolted down to the metal frame·of
the console floor in the cab's compartment and they were not tethered to the seat. (See Gov. Ex.
7). Davis testified that this front-end loader normally traveled at speeds between l 0 and 15 miles
per hour.
Whitehorn testified. that he had purchased the front-end loader with the seatbelts in the
condition seen by Davis. Whitehorn maintained the seatbelts were securely bolted to the metal
frame of the floor. He also stated the seatbelts had been installed in this way for several years and
had never been previously cited by MSHA.
As a result of his observations, Davis issued Citation No. 7852921 citing a non-S&S
violation of section 56.14130(i), 30 C.F .R. § 56.14130(1). This mandatory standard provides,
•seat belts shall be maintained in functional condition, and replaced when necessary to assure
proper performance." (Emphasis added). Davis characterized the cited condition as non-S&S
because he believed it was unlikely that a disabling injury would occur. (fr. 136). In essence,
Davis conceded that the seatbelts bolted to the floor would provide protection, although he
believed the protection to be less effective than that provided by the manufacturer's method of
seatbelt installation.
The bench decision noted that MSHA is not estopped from citing a violative condition
simply because the condition was not cited during previous inspections. However, here the issue
is whether a seatbelt securely bolted to a metal frame on the cab floor constitutes a seatbelt "in
functional condition." As a threshold matter, even Davis concluded the seatbelt was functional in
that he concluded it was unlikely to fail. An operator' s modification of equipment is not a per se
violation of the Secretary's mandatory safety standards. Thus, an operator is permitted to modify
equipment provided that the modification is reasonable and not hazardous. For example, an
operator can replace a manufacturer installed guard at a pinch point with a substitute screen
provided that the screen is securely in place and, that the screen guard serves its intended
protective purpose. So too, an operator can alter the bolting location of a seatbelt, particularly in
a vehicle that routinely does not exceed approximately 15 miles per hour, as long as the seatbelt
continues to provide effective protection.
The Secretary has the burden of proof with respect to the fact of occmrence of a violation.
The seatbelt was securely bolted in place to a metal frame on the floor. There is no adequate
basis for concluding that the seatbelt, as installed, did not provide adequate protection or was not
otherwise •functional" as contemplated by section 56.14130(2)(i). Accordingly~ Citation
No. 7852921 shall be vacated. (fr. 156-60).
4~ Citation No. 7852922

During the course of Davis' February 19, 1997, inspection of the shop area, Davis
observed an employee working in the plant area who was •sweeping around tables• and •doing a

1881

lot of clean-up in the shop." (fr. 166). As Davis approached, Davis concluded the individual
was not wearing hard-toed boots because the front of the shoes were flat. Davis asked him about
his footwear and confinned he was not wearing protective boots.
Davis noted unsecured, heavy objects on a work table in the vicinity where this person
was sweeping. Davis opined these heavy objects could fall off the table onto this individual's
feet. The objects on the work table and other areas in the shop are depicted in three photographs
admitted in evidence. (See Gov. Ex. 10). Davis was also concerned because he concluded, in
addition to sweeping, this employee's job duties also included carrying heavy tools and objects.
Davis issued Citation No. 7852922 citing a violation of the mandatory safety standard in
section 56.15003,30 C.F.R. § 56.15003. This safety standard requires miners to wear protective
footwear when in an area of a mine or plant "where a hazard exists which could cause injury to
the feet." Davis characterized the cited condition as S&S because he conclude it was reasonably
likely that an object would fall off the table, or be dropped, on this employee's foot.
ACS does not dispute the fact of occurrence of the violation. However, ACS contests the
S&S designation. (Tr. 172-73).
The bench decision noted that, with respect to protective footwear, the likelihood of a
significant injury causing event, i.e., an object falling on a foot, must be evaluated in the context
of the job duties performed by the cited employee. Here, the individual was sweeping the shop.
The photographs in Gov. Ex. 3 depict heavy objects placed securely on a well supported work
bench. There is no basis for concluding that it was likely that an object would fall off the work
bench and strike this employee's foot while he was sweeping. The Secretary has also failed to
establish that this individual routinely lifted heavy objects, or, that he did not wear protectiye
footwear wh~n doing so.
Accordingly the S&S designation in Citation No. 7852922 shall be deleted. The
Secretary has proposed a civil penalty of$204.00 for this citation. In view of the deletion of the
S&S designation and the resultant reduction in the gravity of the cited condition, a civil penalty
of$75.00 is imposed. (fr. 173-76).
5. Citation Nos. 7852923 and 7852924
At the hearing, ACS witlld.rew its contest of non-S&S Citation Nos. 7852923 and
7852924. Consequently, ACS has agreed to pay the $50.00 civil penalty proposed by the
Secretary for each of these citations.

In swnmary, the total proposed civil penalty in Docket No. CENT 97-128-M is reduced
from $454.00 to $300.00.

1882

ORDER

In view of the above, IT IS ORDERED THAT:
1. Citation No. 4448274 in Docket No. CENT 97-60-M, and Citation
No. 7852922 in Docket No. CENT 97-128-M, ARE MODIFIED to delete the
significant and substantial designations.
2. Citation No. 7852921 in Docket No. CENT 97-128-M IS VACATED.
3. Arrow Crushed Stone, Inc., SHALL PAY to the Mine Safety and Health
Administration, within 30 days of the date of this decision, a total civil penalty of
$380.00 satisfaction of the citations in issue, and, upon timely receipt of payment,
Docket Nos. CENT 97-60-M and CENT 97-128-M ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Thomas A. Paige, Esq, Office of the Solicitor, U.S. Department of Labor, 525 S. Griffm Street,
Suite 501, Dallas, TX 75202 (Certified Mail).
Ronald M. Me~ Conference and Litigation Representative, U.S. Department of Labor, Mine
Safety and Health Administration, Ill 0 Commerce Street, Room 4C50, Dallas, TX 75242
(Certified Mail)
John Whitehorn, Vice President, Arrow Crushed Stone, Inc., Rt. 7, Box 108, Cleburne,
TX 76031 (Certified Mail)

/mh

1883

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

December 4, 1997
SECRETARY OF LABOR, MSHA,
On behalf of
JERRY MICHAEL CAUDILL
Complainant
V.

LEECO, INC.,
Respondent

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 98-48-D
BARB CD 98-04
BARB CD 98-05
BARB CD 98-06
BARB CD 98-09
Mine No. 68
Mine ID 15-17497

ORDER GRANTING TEMPORARY REINSTATEMENT
On November 14, 1997, the Secretary ofLabo:t: filed an application for an order requiring
Leeco, Inc. (Leeco) to reinstate temporarily Jerry Michael Caudill to his former position as a
maintenance foreman at Leeco' s Mine No. 68, or to a similar position at the same rate of pay.
The applicatiG>n w~ supported by the declaration of Ronnie L. Brock, Supervisory Special
Investigator for the Secretary' s Mine Safety and Health Administration (MSHA), and by copies
of the complaints of discrimination filed by Caudill with MSHA. In the application, the
Secretary alleged that Caudill, who was employed by Leeco as an electrician/repairman, was
suspended and subsequently discharged as a result of being designated as a miners'
representative and carrying out duties pursuant to that designation.
Leeco responded that Caudill in fact was a maintenance foreman at the mine but,
jurisdictional matters aside, Leeco denied the rest of the Secretary's allegations. Leeco's
response was supported by the affidavit of Amon Tracey, general superintendent of Mine No. 68.
Leeco requested that no hearing be held on the Secretary' s application.
Commission Rule 45(c) states, "If no hearing is requested, the Judge assigned to the
matter shall review immediately the Secretary's application and, if based on the contents thereof
the Judge determines that the miner's complaint was not frivolously brought, he shall issue
immediately a written order of temporary reinstatement" (29 C.F.R § 2700.45(c)).

1884

THE MINE ACT. THE SECRETARY'S APPLICATION. CAUDILL'S COMPLAINTS
AND LEECO'S RESPONSE
The Mine Act specifically protects any miner or representative of miners from discharge
or other discrimination because the miner or representative has exercised any statutory right
under the Act (30 U.S.C. § 815(c)). The Commission long has held that a miner seeking to
establish a prima facie case. of discrimination must prove he or she engaged in p~otected activity
- that is, in a right protected under the Act - and suffered adverse action as a result (Secretazy
on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786,2797-2800 (October 1980),
rev'd on other grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3'd Cir. 1981); and Secretary on behalfofRobinette v. United Coal Co., 3 FMSRHC 803,81718 (April 1981)).
The Secretary alleges that Caudill was designated as a miners' representative on
October 3, 1997. The Secretary also charges between October 3 and October 24, 1997, Caudill
was subjected to threats, harassments, demotion and a cut in pay because of his designation, and
that on October 29, he was discharged for the same reason.
Brock's declaration amplifies the Secretary's allegations. He states his review of the
investigative file of Caudill' s complaints revealed, among other things, that on or about October
7, Caudill's designation as miners' representative was posted on the mine bulletin board; that
around October 7, Caudill' s pay was cut from $17.55 per hour to $17.30 per hour with no
explanation; that on or about the sam~ time Caudill was impliedly threatened with retaliation
against his son (who also worked for Leeco) and that Caudill's son subsequently was laid off;
that on October 18, another miner, Tom Brown, was brought to the mine and given Caudill'sjob
title (second shift maintenance foreman); that on October 20, Brown began acting as though he
were supervisor instead of Caudill, and on October 20, Caudill was told Brown was his
supervisor; that on October 20, Leeco officials presented Caudill with forms to sign to give up
his rights as miners' representative; that on October 23, Caudill was warned in writing he had
failed to check in before going underground and that the company had received a citation as a
result, an allegation Caudill denied; that on October 24, Caudill was suspended for five days and
then was discharged on October 29, allegedly for failing to conduct a required methane check
and for cursing an employee who inquired why the test was not conducted.1

1

Brock's declaration is based on MSHA' s investigation of a series of four discrimination
complaints filed by Caudill ~etween October 23, 1997, and November 5, 1997. In the first
complaint Caudill specifically alleged he was threatened, harassed, and demoted "because of
[his] designation as the representative of miners" (Exh. B 2 (Complaint filed
October 23, 1997)). In the second complaint he alleged that on October 23, he was given a
warning for a violation he did not commit - a violation of the federal regulation requiring miners
to sign in before going underground - and that in a separate incident he was the subject of oral
harassment by Leeco's safety director (Exh. B 4 (complaint filed October 24, 1997)). In the

1885

Leeco's response relies on Tracey's affidavit in which he insisted he discharged Caudill
because he failed to take a required methane test prior to lighting an acetylene torch
Wlderground, that he orally abused and threatened a miner who questioned him about his failure,
and that Tracey "did not want to risk the health and safety of miners . . . by continuing to employ
a foreman who had blatantly disregarded the safety of the miners working under him by refusing
to take methane examinations required by law" (Response, Affidavit 2).
Tracey also stated he attended over 20 interviews ofLeeco employees conducted by
MSHA during its investigation of Caudill' s c~mplaints. During these interviews there was no
testimony about a foreman making threatening conunents about Caudill's son, or about any
superintendent circulating a petition asking Caudill be removed as a miners' representative. In
addition, according to Tracey, there was no testimony that Caudill was demoted for anything
related to his status as a miners' representative, or that Caudill was coerced in any way to sign a
form relinquishing his rights as a miners' representative. Further, no one stated Caudill was
denied access to methane detection equipment or exempted from complying with the regulations
requiring methane examinations. Finally, Tracy maintained the cut in Caudill' s pay was an
"inadvertent error" unrelated to Caudill 's designation as a miners' representative (Response,
Affidavit 2-4).
RULING
The Act states that a complainant shall be immediately reinstated if it is determined the
complaint "is not frivolously brought" (30 U.S.C. § 815(c)). Echoing the Act, Commission rule
4 5(c) directs a judge to order a complainant' s inunediate reinstatement if the judge concludes the
miner's complaint was "not frivolously brought" (29 C.F.R. § 2700.45(c)). As I have noted,
where no hearing is requested, the same rule requires the judge to review the Secretary' s
application ~d to make a determination as to whether the complaint was not frivolously brought
"based on the contents of the application" (29 C.F.R. § 2700.45(c)).
The applicable standard for the review requires the Secretary's legal theory, as well as the
Secretary's factual assertions, to be not frivolous. This means the judge must conclude the
Secretary' s assertions could, iffoWld to be true, support a violation of section 105(c), and that
there is a "reasonable cause to believe the assertions" or, to put it another way, that the assertions
are "not clearly without merit" (~Jim Walter Resources. Inc. v. FMSHRC, 920 F2d 738, 747
(II th Cir. 1990)).

third complaint he alleged he was suspended on October 24, because he was a miners'
representative and because he had filed two previous discrimination complaints (Exh. B 6
(Complaint filed October 27, 1997)). In the fourth complaint, he alleged his pay was cut from
$17.55 per hour to $17.30 per hour because of complaints he made about the company's failure
to make safety repairs on eql;lipment (Exh B 8 (Complaint filed November 5, 1997)).

1886

Certainly, a miners' representative has a right under the Act to exercise his or her duties
as a representative free from harassment or intimidation of any kind. Indeed, the Act places so
much importance on the contributions a representative can make to the improvement of the
safety and health of the working environment, it specifically protects the representative from
retaliation for his or her participation (30 U.S.C. § 815(c)(2)). The Secretary's theory of
discrimination is that Caudill was threatened, harassed, received a cut in pay, was demoted, and
then terminated because of.his status as a miners' representative and because of the exercise of
his responsibilities as a ·representative. While the theory ultimately may or may not be sustained,
it is far from frivolous. Proof of any such treatment because of any such causes would constitute
a prima facie case of discrimination.
Further, a review of the Secretary's application easily establishes the complaint was not
frivolously brought. When a hearing is waived, such a review must accept and treat as fact the
events alleged in the application.· In other words, for the purpose of this ruling, I must assume
Caudill was designated the miners' representative on October 3, 1997, a designation ofwhich
Leece certainly was aware, and that within the next 26 days, his pay was reduced, he was
demoted, suspended, and terminated. The Commission has observed that although direct
evidence of discriminatory motivation is rarely encountered, circumstantial evidence of such
intent may be considered. Among the indicia of intent are knowledge of the protected activity
and coincidence of time between the protected activity and the adverse action(~ Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508 (November 1981) rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F2d 869 D.C. Cir. 1983)). Leece's knowledge of
Caudill's designation and the subsequent chronology of adverse action is sufficient to establish
reasonable cause to believe the Secretary's assei:iion of discrimination and to conclude the
assertion is not clearly without merit. Accordingly, the application is GRANTED.
It is worth emphasizing that granting the application has no bearing upon the ultimate
sufficiency and credibility of the Secretary' s and Leece's assertions and defenses ifthe Secretary
or Caudill subsequently bring a complaint of discrimination. Then, the assertions and defenses
will be subject to the tests of trial at which the burden will be upon the complainant to prove her
or his case by a preponderance of the evidence and at which ~e full range of procedural
protections will be available to Leece. Proof by a preponderance of the evidence is not now
required because the statutory provision for temporary reinstatement represents Congress's
judgment that in situations where miners have lost jobs for alleged discriminatory reasons, a
different, and lower, standard of proof is needed to facilitate reinstatement.
However, Congress also has recognized that an operator should not bear indefinitely the
.. burden of reinstatement without having the merits upon which it is based subjected to the
traditional standard of proof as determined through the full administrative hearing process. For
this reason, the Act and the Commission's implementing regulations set forth time limits within
which complaints of discrimination must be investigated and filed (30 U.S.C. § 815(c)(2),
§ 815(c)(3); 29 C.F.R. § 2700.40, § 2700.41). When temporary reinstatement is awarded,
fairness requires these limits be strictly observed.

1887

OBDER
For the reasons set forth above, the parties are ORDERED as follows:
Leeco WILL immediately reinstate Caudill to the position he held at the
time of his designation as miners' representative on October 3, 1997, and at the
correct rate of pay for that position, or to a similar position at the same rate of pay
and with the·same or equivalent duties.
The Secretary WILL, pursuant to the Act and the Commission' s
regulations, on or before Tuesday, February 3, 1998, make a written
determination whether or not a violation of section 105(c) of the Act has occurred,
and if she determines a violation has occurred, file a complaint within 30 days of
the written detennination. If she determines a violation has not occurred, and
Caudill wishes to pursue a complaint under section 105(c)(3) of the Act (30
U.S.C. § 815(c)(3)), Caudill WILL file a complaint within 30 days of receipt of
the Secretary's notification.
If a complaint is not filed within 30 days of the Secretary's written notification or its
receipt, Caudill' s temporary reinstatement will TERMINATE

c.-f)QV'~·t'T&~bt?~d~David Barbour
Administrative Law Judge
Distribution:
MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, 1N 37215 (Certified Mail)
MarcoM. Rajkovish, Jr., Esq., Wyatt, Tarrant & Combs, Lexington Financial Center, Suite
1700, 250 W . Main St., Lexington, KY 40507 (Certified Mail)

Mr. Jerry M. Caudill, General Delivery, Daisy, KY 41733 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project/ARDF ofKentucky, .I nc., 630 Maxwelton Court,
Lexington, KY 40508 (Certified Mail)

1888

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, 00 80204-3582
303-844-3993/FAX 303-844-5268

DEC 1 7 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 97-293-M
A.C. No. 26-00062-05543

v.

Genesis

NEWMONT GOLD COMPANY,
Respondent
ORDER OF DISMISSAL
ORDER DENYING PETITIONER'S MOTION FOR STAY ORDER
The above-captioned penalty proceeding consists of a petition for assessment of civil
penalties for four vacated citations. These four citations were vacated and dismissed by the
presiding Administrative Law Judge in his October 14, 1997, decision in the consolidated contest
proceeding, 19 FMSHRC 1640 (Oct 1997). All four citations were vacated after a full two day
contested evidentiary hearing on the merits in Docket Nos. WEST 97-164-RM,
WEST 97-165-RM, WEST 97-166-RM and WEST 97-167-RM, 19 FMSHRC 1640 (Oct. 1997).
A few days after the ALJ's October 14, 1997, decision vacating and dismissing the
citations, the Solicitor on October 20, 1997, filed this Petition for civil penalty for each of the
four vacated citations. On October 24, 1997, Respondent filed an answer and a motion to
Dismiss the Secretary's petition of civil penalties for the four vacated citations. Respondent's
motion for dismissal was based·on the ALJ's October 14, 1997, decision in the consolidated
contest proceedings WEST 97-164-RM through WEST 97-167-RM, 19 FMSHRC 1640 (Oct
1997)..
In November 1997, the Solicitor filed a written request for additional time to respond to
Respondent's Motion to Dismiss the present civil penalty proceeding and on December 1, 1997,
filed a "Motion For Stay of Proceedings" in this case stating that the ALJ's October 14, 1997,
decision which vacated the four citations in question is now subject of a Petition for
Discretionary Review.

1889

On consideration of this matter I fmd no justification in 1he record before me to grant
Petitioner's extraordinary motion for a stay of the present proceedings cf W.S. Frey Co., Docket
Nos. VA 93-59-M eta!., 16 FMSHRC 1591 (Aug. 5, 1994), 1 MSHN 409 (Aug. 12, 1994). The
Petitioner's motion is denied and the Solicitor's petition for assessment of civil penalty for each
of four vacated citations in Docket No. WEST 97-293-M is denied. There being no enforcement
document in this docket other than the four vacated citations, this case is DISMISSED.

Administrative Law Judge

Distribution:
Steven R. DeSmith, Esq., Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department of
Labor, 71 Stevenson St., Suite Ill 0, San Francisco, CA 94105
David Farber, Esq., PATION BOGGS, LLP, 2550 M Street, NW, Washington, DC 20037

Ish

1890

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

DEC 17 1997
LAUREL RUN MINING COMPANY,
Contestants

CONTEST PROCEEDINGS
Docket No. WEVA 94-347-R
Citation No. 3964761; 8/1194

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

Docket No. WEVA 94-348-R
Order No. 3964762; 8/1/94
Docket No. WEV A 94-349-R
Order No. 3964763; 8/1194
Docket No. WEV A 94-350-R
Order No. 3964764; 8/1/94
Holden 20-DB Mine
Mine ID No. 46-07770

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 96-177
A. C. No. 46-07770-03575

v.

Holden 20-DB Mine

LAUREL RUN MINING COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINlSTRATION, (MSHA),
Petitioner

CnnLPENALTYPROCEEDING
Docket No. WEVA 96-176
A. C. No. 46-07770-03576A

v.

Holden 20-DB Mine

ERNIE WOODS, Employed by
Laurel Run Mining Co.,
Respondent

1891

DECISION
Appearances:

RobertS. Wilson, Esq., Caryl L. Casden, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for the Petitioner;
David J. Hardy, Esq., William Miller, Esq., Jackson & Kelly, Charleston,
West Virginia, for the Respondents.

Before:

Judge Feldman

These consolidated civil penalty and contest proceedings concern a petition for
assessment of civil penalties filed by the Secretary of Labor against Laurel Run Mining Company
(Laurel Run) pursuant to section 11 O(a) of the Federal Mine Safety and Health Act of 1977 (the
Act), 30 U.S.C. ~ 820(a). In these matters, the Secretary also sought, pursuant to sectioP llO(c)
of the Act, 30 U.S.C. § 820(c), to impose personal liability on Ernie Woods, Laurel Run's
foreman, alleging that Woods, by his conduct, "knowingly authorized, ordered or carried out" a
violation of Laurel Run's approved roof control plan.
The hearing in these matters was conducted in Charleston, West Virginia in June and
September 1997. The hearing was scheduled to reconvene on December 9, 1997. Shortly before
reconvening, the parties informed me they had agreed to settle all matters in issue. At the time of
their settlement, the Secretary had not completed presentation of her direct case. Consistent with
their agreement, before me for consideration is the Secretary's December 11 , 1997, Motion for
Approval of Settlement.
I. Background

Briefly stated, these proceedings involve citations issued as~ consequence ofMSHA's
investigation following a fatal roof fall that occurred at Laurel Run's Holden 20-DB Mine on
Monday, July 25, 1995. The 20-DB site is a hilltop, or outcrop, mine. Hilltop mines are
underground mines that are located relatively close to the surface. The roof of a hilltop mine is
prone to surface cracks, also called mud seams. Surface cracks are geological phenomenon in
rock formations that run from the earth's surface through the rock to the mine roof below. As a
general rule, surface cracks are exposed in the mine roof as the coal seam is removed. Surface
cracks are commonly identified by their orange-rust color. This discoloration is caused by
mineral deposits that, over the course of time, have filtered through the surface cracks in water
originating on the earth's surface.
Unlike surface cracks, which are longstanding geological formations, stress cracks are
acute cracks caused by pressure brought to bear on the mine roof during the mining process.
Stress cracks can normally be distinguished from surface cracks by their lack of mineial deposit
color. Although any crack in a mine roof can be hazardous, surface cracks are particularly
hazardous because they run down from the earth's surface.

1892

Surface cracks are random and can run in any direction in the mine roof. Surface cracks
that travel across entries or crosscuts (perpendicular to ribs) in the same direction as the roof
bolted straps are less hazardous than surface cracks that run in the same direction as entries and
crosscuts (parallel to entries or crosscuts). This is because a perpendicular surface crack only
· compromises the roof area between the surface crack and the closest roof strap. By contrast a
parallel surface crac~ running in an entry parallel to a rib, removes that rib as a means of roof
support. Two parallel surface cracks, running parallel to each other in the direction of an entry,
are extremely hazardous·because they separate the ribs on each side of that entry_from the roof
of that entry, leaving the roof essentially unsupported. Under the roof control plan in effect at
the time of the fatality, two or more surface cracks, running parallel to each other in the direction
of an entry, required supplemental roof supports through cribbing or metal beams.
The thrust of MSHA' s <..ase is that its investigation following the fatal accident revealed
sets of two or more parallel surface cracks running in the same direction as entries and crosscuts
in the vicinity of the fatality and in outby areas, that were not supported by supplemental roof
supports. Essentially, in their defense, the respondents assert the cracks observed after the fatal
roof fall were not visible prior to the accident, arguing these cracks were stress cracks rather than
surface cracks. The respondents also dispute the direction of the cited cracks contending the
cracks were running across entries rather than in the same direction as entries. Thus, the
respondents argue that, even if the cracks were properly characterized as surface cracks and
visible prior to the fatal roof fall, supplemental support was not required under the operable roof
control plan provisions.

II. Settlement Terms
A. Civil Penalty-Liability

1. Citation No. 3964761, issued pursuant to section 104(d)(l) of the Act, alleges a
violation of30 C.F.R. § 75.220(a), because the respondents failed to comply with the approved
roof control plan with respect to installation of supplemental support in instances of two or more
parallel surface cracks running in the direction of entries or crosscuts. It was determined that the
cited condition contributed to the fatal accident. Thus, the violation was designated as
significant and substantial (S&S). Based on MSHA's initial investigation findings, it concluded
the cited condition was the result of the Laurel Run's reckless disregard of the perceived hazard
and, thus, constituted aggravated conduct. Consequently, MSHA initially proposed a maximum
civil penalty of$50,000.

In support of their settlement agreement, the Secretary now agrees there are mitigating
circumstances that reduce the degree of Laurel Run's negligence. In this regard, the Secretary
notes that Laurel Run's witnesses would testify that surface cracks were not visible prior to the
fatal roof fall. Moreover, although the Secretary continues to believe there were at least two
parallel surface cracks in the vicinity of the fatality that required additional support under the
roof control plan, the Secretary acknowledges that her own witness characterized one of the

1893

.'
!

surface cracks as "hairline." Thus, the Secretary concedes there was a basis for Laurel Run's
mistaken belief that the surface crack was a stress induced crack that did not invoke the cited roof
control provision.
Although the settlement tenns provide that Citation No. 3964761 shall remain as a
104(d)(I) citation involving an unwarrantable failure, the parties have agreed to a reduction in
the degree of negligence, from reckless disregard to high, that is attributable to Laurel Run.
Consequently, the parties have agreed to a reduced civil penalty of$25,000.00 for Citation No.
3964761.
2. 104(d)(l) Order No. 3964762 alleges a violation of30 C.F.R. § 75.360(a) because
Laurel Run failed to conduct an adequate preshift examination, in that it failed to detect and
correct the hazardous roof conditions cited in Citation No. 3964761. MSHA initially determined
the violation was S&S and attributable to Laurel Run's unwarrantable failure. A civil penalty of
$25,000 was proposed.
As discussed above, the uncertainty surrounding the nature and extent of the hazardous
roof conditions prior to the massive fatal roof fall precludes the Secretary's continued assertion
of aggravated conduct indicative of an unwarrantable failure. Accordingly, the Secretary has
agreed to modify 104(d)(l) Order No. 3964762 to a l04(a) citation. The parties have agreed to a
reduced civil penalty of$6,000 for this citation.
3. 104(d)(l) Order No. 3964763 alleges a violation of 30 C.F.R. § 75.362(a)(l) due to
Laurel Run's failure to perform an adequate onshift examination. Consistent with the discussion
above concerning the preshift violation, MSHA concluded the violation was S&S and
attributable to Laurel Run's unwarrantable failure. However, in view of the uncertainty
concerning the degree of visibility of the underlying hazardous r~f condition, the parties
have agreed to remove the unwarrantable failure charge and, thus, modify l04(d)(l) Order
No. 3964763 to a 104(a) citation. Consequently, the parties have agreed to a reduced civil
penalty of $6,000 for this citation.
4. 104(d)(2) Order No. 3964764 alleges a violation of 30 C.F.R. § 75.202(a) because
Laurel Run failed to adequately support coal ribs at various locations in the No. 2 section that
were sloughing and not finnly attached to the roof. The Order alleged the cited condition was
S&S and attributable to Laurel Run's unwarrantable failure. A civil penalty of$8,000 was
initially proposed.
The Secretary anticipates that Laurel Run's witnesses would testify that poor rib
conditions were not observable prior to the fatal roof control fall. Since the Secretary .c annot
present evidence concerning the rib conditions prior to the accident, the Secretary has agreed to
reduce Laurel Run's degree of negligence to low, thus removing the unwarrantable failure
allegation.

1894

Accordingiy, 104(d)(2) Order No. 3964764 is modified to a 104(a) citation. In view of
the significant reduction in the degree of Laurel Run's negligenCe, the parties have agreed to a
reduced civil penalty of$500 for this citation.
B. Section 11 O(c) Liability
Section 11 0(c) of the Act provides that, whenever a corporate operator violates a
mandatory safety standard, an agent of the corporate operator who knowingly authorized,
ordered, or carried out such violation shall be subject to individual liability. In Docket
No. WEV A 96-176, the Secretary sought to impose personal liability on Ernie Woods for
"knowingly" failing to comply with Laurel Run's approved roof control plan in violation of the
mandatory regulatory safety standard in section 75.220(a). Specifically, the Secretary charged
Woods with failing to ensure that supplemental support was installed for hazardous surface
cracks as required by the roof control plan provisions.
The Commission, in Fort Scott Fertilizer, 19 FMSHRC 1511 (September 1997), recently
summarized the standard of proof in a 110(c) proceeding. The Commission stated:
To esiablish section 110(c) liability, the Secretary must prove only that an
individual knowingly acted, not that the individual knowingly violated the law.
Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United
States v. Int 'I Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)). An individual
acts knowingly where he is "in a position to protect employee safety and health
[and] fails to act on the basis of information that gives him knowledge or reason
to know ofthe existence of a violative condition." Kenny Richardson,
3 FMSHRC at 16. Section 11 O(c) liability is predicated on aggravated conduct
constituting more than ordinary negligence. BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1245 (August 1992)(emphasis added). 19 FMSHRC at 1517.
Woods was' charged with knowingly violating the roof control plan provisions by failing
to ensure that hazardous surface cracks were properly supported. lbis violative condition was
the subject of Citation No. 3964761. However, the settlement terms concerning this citation
noted the unsupported surface cracks were not obvious enough to warrant a finding of aggravated
conduct. Consequently, the settlement terms fail to state a 11 0(c) cause of action against Woods.
As a result, as part of the settlement agreement, the Secretary moves to dismiss the llO(c) action
brought against Woods in Docket No. WEVA 96-176.

189.5

ORDER

In view of the representations and documentation submitted in this case,
and I conclude that the proffered settlement is appropriate under the criteria set forth in
Section II O(i) of the Act. WHEREFORE, the motion for approval of settlement
IS GRANTED, and IT IS ORDERED that Laurel Rm1 Mining Company pay a total civil
penalty of$37,500 in satisfaction of the four citations in issue within 30 days of the date of this
order, and, upon receipt of timely payment, the civil penalty case in Docket No. WEVA 96-177
IS DISMISSED.
.
IT IS FURTHER ORDERED that the related contest proceedings in Docket
Nos. WEVA 94-347-R, WEVA 94-348-R, WEV A 94-349-R and WEVA 94-350-R,
ARE DISMISSED.
IT IS ALSO ORDERED that the 11 0(c) proceeding concerning Ernie Woods in Docket
No. WEVA 96-176 IS DISMISSED with prejudice.

Jerold Feldman
Administrative Law Judge
Distribution:
David J. Hardy, Esq., William Miller, Esq., Jackson & Kelly, P.O. Box 553, Charleston,
WV 25322 (Certified Mail)
Elizabeth Chamberlin, Esq., Laurel RWl Mining Company, 1800 Washington Road, Pittsburgh,
PA 15241 (Certified Mail)
RobertS. Wilson, Esq., Caryl L. Casden, Esq., Office of the Solicitor, U.S. Dept. of Labor,
4015 Wilson Blvd., Suite 516, Arlington, VA 22203 (Certified Mail)
\It

1896

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYUNE, 101h FLOOR
5203 LEESBURG PIKE
FAllS CHURCH, VIRGINIA 22041

DEC 2 3199l
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 97-5
A. C. No. 11-00601-04045

V.

Rend Lake Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances: Ruben R. Chapa, Esq., Office of the Solicitor, U.S. Department of Labor,
Chicago, Illinois, for the Secretary;
Elizabeth S. Chamberlin, Esq., Consolidation Coal Company, Pittsburgh,
Pennsylvania, for Respondent.
Before:

Judge Bulluck

This case is before me on a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor, through her Mine Safety and Health Administration (MSHA}, against
Consolidation Coal Company ("Consol"), pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977,30 U.S.C. § 815. The petition seeks civil penalties of$50.00 and $903.00,
respectively, for alleged violations of a notice to provide safeguard issued pursuant to section
75.1043, 30 U.S.C. § 75.1403, and section 7S.202(a), 30 U.S.C. § 7S.202(a).
A hearing was held in Mt. Vernon, Illinois. The parties' post-hearing briefs are of record.
For the reasons set forth below, the safeguard violation and the WlSUpported roof violation shall
be aftinned.

I. Stipulations
The parties stipulated to the following facts:
1. The Federal Mine Safety and Health Review Commission bas jurisdiction over this
proceeding.

1897

2. At all times relevant to these proceedings, respondent, Consolidation Coal Company
(hereinafter, "respondent" or " Consolidation") and the Rend Lake Mine are subject to the
provisions of the Federal Mine Safety and Health Act of 1977 (hereinafter, the "Act").
3. At all times relevant to these proceeqings, respondent owned and operated the Rend
Lake Mine, a bituminous coal mine located in·Jefferson County, Illinois.
4. The Administrative Law Judge has jurisdiction of this case pursuant t~ Section 105 of
the Federal Mine Safety and Health Act of 1977,30 U.S.C. §801 et seq. (1994).
5. The respondent's mine produced approximately 3,269,017 tons of coal from
January I, 1995 through December 31 , 1995.
6. All of the respondent's operations produced approximately 65,43 1,842 tons of coal
from January 1, 1995 through December 31, 1995.
7. The subject citations were properly served by a duly authorized representative of the
Secretary of Labor upon an agent of Consolidation on the date indicated therein.
8. The proposed civil penalties in this proceeding will not affect the operator' s ability to
continue in business.
II. Safeguard Notice No. 3041481 /Citation No . 3839842
A. Factual Background

Consol owns and operates the Rend Lake bitwninous coal mine in Jefferson County,
Illinois. On March 2, 1987, MSHA Inspector Frank Garavalia (deceased at the time of hearing)
issued Safeguard No. 3041481, pursuant to 30 C.F.R. § 75.1403, citing the following condition:
A Memco mantrip was parked approximately 3 feet from a line curtain
(brattice) in the crosscut left off the belt entry at survey Tag No. 7196. Both
miners and mining equipment could travel through this location. Neither a
workman, nor a warning sign was stationed on the curtain's blind side indicating
that the equipment was parked behind the curtain. The mantrip was not visible
through the curtain. 11lis was observed in the 2oc1 east, 2nc1 left working section.
This is a notice to provide safeguards requiring that mining equipment be visible
through a curtain, a workman be stationed on the curtain's blind sign [sic], or a
warning sign be conspicuously posted on the opposite side of the curtain from_the
parked equipment. This safeguard includes all underground areas ofthis coal

mine
(Ex. P-1 ). Section 75.1403 authorizes an MSHA inspector to issue safeguards that, in the
inspector's judgment, are necessary to minimize hazards with respect to transportation and
materials.

1898

The facts surroWlding the issuance of the contested citation and the alleged violative
condition cited therein are not in dispute. On July 26, 1996, at 10:55 a.m., MSHA Inspector
Michael Rennie, accompanied by mine safety representative Rick Shocldy and safety
committeeman Danny Brown, conducted a Triple A inspection of the Rend Lake Mine (Tr. 76,
100-1 05). While in5pecting the 2G long wall section of the mine, Inspector Rennie walked
through a brattice curtain positioned in an adjacent crosscut and came upon the No. 41 scoop
parked two feet away from.the curtain on its blind side (Tr. 76, 81, 106; Ex. J-3). 1 No sign or
workman was posted to warn of the equipment stationed behind the curtain (Tr. 77_-78, 152).
Inspector Rennie issued the following 104(a) non-significant and substantial citation, for
violation of section 75.1403, based on the above-cited Safeguard No. 3041481:
The No. 41 battery-powered Simmonds Rand scoop was parked
approximately 2 feet from a ventilation curtain (brattice) in the crosscut right off
the 2G travelway at survey station 12+80. Neither a workman or a warning sign
was posted on the travel way side of the curtain. Safeguard Notice No. 3041481
requires that mining equipment be visible through a curtain, a workman stationed
on the curtain's blind side, or a warning sign be conspicuously posted on the .
opposite side of the curtain from the parked equipment. This safeguard includes
all areas of the WldergroWld coal mine
(Ex. P-8).

B. Findings ofFact and Conclusions of Law
1. Validity of Safeguard
The seminal issue for resolution is whether Safeguard No.3041481, issued by Inspector
Frank Garavalia on March 2, 1987, is valid. The Commission has noted that through
section 314(b) of~e Act, 30 U.S.C. § 874(b), the Secretary, through MSHA inspectors, is
accorded broad discretion to issue safeguards, without operator consultation, in order "to guard
against all hazards attendant upon haulage and transport[ation] in coal mining.'; Southern Ohio
Coal Co., 14 FMSHRC 1, 8 (January 1992) ("SOCCO II"); Jim Walter Resources, Inc.,
7 ·F MSHRC 493, 496 (April 1985). Safe and unobstructed travel by miners on foot has been
recognized as falling within the purview of the haulage and transportation hazards that
safeguards seek to prevent. See Southern Ohio Coal Co., 7 FMSHRC 509, 513 (April1985)
(SOCCOI).

1A "brattice curtain" is a means of ventilation control

in a mine, primarily used to direct
air to the working face areas, by fasteiling the cmtain across the roof of an entry, and for
maximum direction of airflow, to the adjacent ribs (Tr. 29-31, 71).

1899

A notice to provide safeguards is mine-specific, in that an inspector must determine:
1) that there exists at a mine an actual transportation hazard that is not covered by a mandatory
standard; 2) that a safeguard is necessary to correct the hazardous condition; and 3) the corrective
measures that the safeguard should require. 14 FMSHRC at 8. As long as a safeguard is
premised upon an inspector's evaluation of the specific conditions at a particular mine, that
· similar unsafe conditions and similar safeguards to address them are present at other mines does
not invalidate it. Jd at 8, I 0.
Recognizing the need for an appropriate balance between the Secretary's authority to
require safeguards additional to mandatory standards and the operator's right to notice of the
conduct required of him, the Commission has required that a safeguard notice identify with
specificity the hazard at which it is directed and the conduct required to remedy such hazard.
7 FMSHRC 512. Therefore, where an operator challenges a safeguard's validity, the Secretary
bears the burden of proving that the safeguard provided the operator with sufficient notice of the
nature of the targeted hazard and the remedial conduct required, so as to enable the operator to
secure prompt and complete abatement. /d.; 14 FMSHRC 13. In interpreting a contested
safeguard, the Commission has mandated a narrow construction of its terms and intended reach,
while noting that this approach does not give license to challenges based on pure1y semantical
arguments. 7 FMSHRC 512; BethenergyMines. Inc., 15 FMSHRC 981,985 (June 1993).
Consol takes the position that the underlying safeguard is impermissibly vague, in that it
fails to adequately identify the hazard addressed and, therefore, permits ad hoc discretion in
interpretation, inspector-by-inspector. Furthermore, Consol argues that the safeguard
inappropriately encompasses ill mining equipment, rather than mobile equipment (such as the
parked mantrip cited in the safeguard), it fails to specify the range of distance within the curtain
that triggers the "warning" requirements, and it does not specify whether it is protecting miners
traveling on qtobile equipment or on foot (R. br. 5-9). In support of this position, Consol
references MSHA bulletins and accident reportS dealing with injuries resulting from moving
equipment running -into parked equipment (Exs. P-2, P-3 and P-4), and other safeguards within
District 8 mines, many of which specify permissible distances between parked transportation
equipment and brattice curtains (generally, twenty-five feet) (Ex. R-9V
Arguing the validity of the safeguard at issue, the Secretary takes the position that, on its
face, the safeguard demonstrates the existence of a condition at the Rend Lake Mine that created
a transportation hazard, and that it is specific in identifying both the hazard and the conduct
necessary to remedy such hazard. Moreover, the Secretary asserts that the targeted transportation
hazard applies to mining equipment traveling through curtains that could collide with any parked
equipment, as well as miners traveling 1hrough curtains by foot who could bump into parked
equipment and sustain injury (P. br. at 7-16).

2/ The Secretary's Motion to Strike Respondent's Attachment

to Post-Hearing Brief
(17 similar safeguards issued to other District 8 mines) was denied during teleconference with
the parties on October 31, 1997, and the record was reopened for admission of the documents.

1900

As inspection supervisor in the Benton, Illinois field office, MSHA Inspector Steven
Kattenbraker testified that he tionnally reviewed safeguards isSued from his office to ensure that
they accurately described the behavior that is expected of the operators (Tr. 15-18). Although he
was W18ble to recall whether he had specifically discussed the safeguard at issue with Inspector
Garavalia, Inspector Kattenbraker testified that due to a 1980 fatality, MSHA had placed
emphasis on eliminating injuries caused by the transportation hazard of parking vehicles behind
curtains (Tr. 19-24, 47-49; .s ee Ex. P-2, January 23, 1980, notice by MSHA District 8 Manager to
District 8 mine operators, alerting them to a recent fatality caused by the collision of a shuttle car
traveling through a curtain with a continuous mining machine parked behind the curtain; see also
Ex. P-3, MSHA Program Informational Bulletin No. 84-16C addressing underground haulage
accidents). The record establishes that this fatality occurred at Consol's Hillsboro Mine, located
in Coffeen, Montgomery County, Illinois, part ofMSHA's District 8 (Ex. P-4; Tr. 41-42).
Inspector Kattenbraker offered his opinion that rui mining equipment parked behind a curtain
poses the hazard targeted by the safeguard, that twenty-five feet is standard in most other
safeguards as a safe distance between parked equipment and brattice curtain, and that while he
would prefer that the instant safeguard specify a safe distance, it, nevertheless, puts the operator
on notice that the equipment should be parked at a distance from a curtain that allows clear
visibility of the equipment to the vehicle or person traveling through the curtain (fr. 51-55,5960).
Inspector Michael Rennie testified that the instant safeguard gives the operator adequate
notice of how far to station mine equipment behind curtains, because the mine operator is
imputed to have a working knowledge of his equipment, including size and length, and is held
responsible for making appropriate judgments as to the distance necessary for safe clearance of
mine equipment traveling through its curtains (Tr. 139, 142, 144, 147). He explained that, due to
the equipment size and the operator's location on the equipment, several feet of the equipment
may travel through a curtain before the operator passes through and is able to see the parked
equipment on the other side (Tr. 131 ). Therefore, Inspector Rennie is of the opinion that, while
MSHA regards twenty to twenty-five feet as a safe parking distance, based on the size and length
of most mining equipment, some discretion is required of the mine operator, as well as the
inspector who evaluates the condition (fr. 139-140).
The condition at the mine for which the underlying citation was issued is not a matter in
controversy. Based on MSHA's emphasis on eliminating accidents caused by mining equipment
parked behind brattice curtain, and on Inspector Garavalia' s observation that the mantrip was not
visible through the curtain and was parked three feet behind it, it was within his discretion to
conclude that a transportation hazard existed at the Rend Lake mine, and that a safeguard notice
was necessary to correct the hazard. A narrow reading of the safeguard provides the operator
with sufficient notice of the hazardous condition to be prevented: parking mining equipment
behind a curtain through which such equipment cannot be seen from the blind side, without
posting a workman or a warning sign. Implicit in its language, based upon the cited condition, is
that both miners traveling on foot and on equipment could travel through a cwtain, and where the
hazardous condition exists, sustain injuries. Although the instant safeguard is silent as to a

1901

specific distance that equipment may be stationed safely behind a curtain, the Commission has
held that an operator was given fair notice of the requirements of a safeguard where its language
included interpretive terms. U.S. Steel Mining Co., Inc., 15 FMSHRC 2445, 2448 (December
1993). In this case, the word "parked" is used in a context that puts the operator on notice that
any distance between a non see-through curtain and stationary mining equipment that does not
permit safe travel through the curtain's blind side (a clear view of equipment on the back side) by
miners on foot and oper~ting mining equipment, shall require corrective measures. Therefore, I
reject Consol's arguments that the safeguard is vague, find that Consol was given adequate
notice of the targeted hazard and the corrective measures required, and, therefore, conclude that
the safeguard was validly issued.
2. Fact of Violation
The subject safeguard requires that parked mining equipment be visible through a curtain,
or where it is not visible, a workman be stationed on the curtain' s blind side or a warning sign be
conspicuously posted on the opposite side from the parked equipment. Because it is clearly
reasonable to consider equipment stationed a distance of two feet from a curtain to be "parked,"
it is curious that Consol uses the instant citation to challenge the validity of the underlying
safeguard.
Jn applying the requirements of the safeguard to the uncontroverted facts of this case, the
evidence establishes that only cap lighting was available in the cited passageway, visibility was
not possible through the solid curtain, no workman or sign was posted, and as the inspection
party walked through the curtain, Inspector Rennie and Dan Brown almost bumped into the
scoop parked two feet from the curtain (Tr. 77-79, 81, 106, 108, 151-153; Exs. P-8, P-9, J-2).
Accordingly, the Secretary has met her burden of proving that the safeguard was violated by the
cited conditions.
3. Civil Penalty
While the Secretary has proposed a civil penalty of$50.00, the judge must independently
determine the appropriate assessment by proper consideration of the six penalty criteria set forth
in section llO(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Stone Co., 5 FMSijRC 287,
291-292 (March 1993), affd, 763 F.2d 1147 (T" Cir. 1984).
Consol is a large operator, with an insignificant history of prior violations, including two
prior violations of the subject safeguard within three months of the instant citation (Ex. P-5).3
The Secretary did not allege, nor does the record reflect, that its violations history is an
aggravating factor that provides a basis for raising the penalty. As stipulated, the proposed civil
penalty will not affect Consol's ability to continue in business.

3
/ Inasmuch as the Secretary has failed to provided the most current data of violations

(July 1992 to June 1994 provided, rather than July 1994 to July 1996), Consol's history of
previous violations is construed in the light m~st favorable to the operator (See Ex. P-7).

190 2 .

The remaining criteria involve consideration of the gravity of the violation and the
negligence ofConsol in causing it. I find the gravity of the vioiation to be serious, since the
potential for grave injuries to miners, including death, caused by collisions of equipment and of
persons and equipment, is well documented by the record. Consideration that Consol had been
cited for similar violations within three months of the instant citation persuades me that Consol
appreciated the nature of the hazard and, consequently, leads me to ascribe moderate negligence
to Consol. Therefore, having considered Consol's large size, insignificant history of prior
violations, seriousness ofthe violation, good faith abatement and moderate degr~ of negligence,
I find that the $50.00 penalty proposed by the Secretary is appropriate.
III. Citation No. 4265333
A. Factual Background

On July 18, 1996, at approximately 12:15 a.m. during the midnight shift, MSHA
Inspector Michael Pike, accompanied by foreman Victor Sauerhage and walkaround
representative/safety committeeman Melvin Filkins, entered the mine by the Nason portal in
order to conduct a CCA inspection (6 month roof control review), which would entail checking
entries, intersection widths, bolt spacing, observing bolt installation, and ensuring compliance
with the roof control plan (Tr. 161-162). The inspection party began travel by scooter (personnel
carrier) on the main east travelway to the opposite side of the mine, fifty to one hundred feet
behind a scooter transporting pumpers Robert Carpenter and Dewey O'Daniel to the location of
their tools (Tr. 167, 241-243).4 As the pumpers approached the No. 96-97 crosscut, they
observed on the roadway "some rock and top coal" that had fallen out from around a roof bolt,
causing them to stop in the middle of the travelway about twenty-five feet from the fallen rock
and observe the roof (Tr. 164, 223, 241, 243-244, 246, 257-258). Inspector Pike, foreman
Sauerhage and walkaround representative Filkins stopped moments later behind the pumpers,
who informed Pike and Filkins of the roof condition (Tr. 164, 241, 243). Inspector Pike,
accompanied by Filkins, examined the roof in the area identified by the pumpers (Tr. 164,213214, 218-219), then informed Sauerhage that ''the road was going to be closed and the rock
cleaned up until they got it all bolted" (Tr. 241,246-247, 258). Sauerhage rerouted the pumpers
by directing them to walk along the belt line (a parallel entry) to collect their tools (Tr. 241-242,
249), called for midnight shift foreman Robert Pigg to come to the area (Tr. 258-259, 286), and
sent for the diesel roof bolter to come immediately from the west (Sesser) side of the mine
(Tr. 261, 287). While Sauerhage was calling for the midnight shift foreman and the roof bolter,
Inspector Pike stationed himself in the travelway and prevented all persons, including workers on
overtime, from entering the area between the 96-97 crosscut, by detouring them around the area
to the belt line (Tr. 164-165,259, 293). Shift foreman Pigg flagged-off the area with orange
reflector tape, and had supplemental roof bolts installed in accordance with legal requirements
(Tr. 166, 293-294). No persons other than the roof bolters were permitted to work or travel in
the affected area until the supplemental roof support was installed (Tr. 311 ).

4

/ A "pumper" pumps water out of a mine by use of a stationary pump (Tr. 167).

1903

Inspector Pike issued section 104(a), non-significant and substantial Citation
No. 4265533, describing the violation of section 75.202(a) as follows:
. An area of inadequate supported mine roofapp. 45 feet in length and
20 feet wide was present between the No. 96 and 97 crosscut on the main east
travel way. People are required to work and travel this area
(Ex. P-10V
B. Findings of Fact and Conclusions of Law
1. Fact ofViolation

Section 75.202(a) is a broadly wrinen standard, designed to protect miners from "any
roof, face or rib hazards, as well as hazards associated with coal or rocks bursts, in areas where
they may travel, by supporting or controlling the roof, face or ribs." Jim Walrer Resources, inc.,
16 FMSHRC 4 56 at 4 77, 478 (February 1994) (ALJ). The Commission has required liability
under the standard to be subjected to the consideration of whether a reasonably prudent person,
familiar with the mining industry and the protective purpose of the standard, would have
recognized that the roof or ribs were not adequately supported or otherwise controlle~. Jd.
at 479. By application of the reasonably prudent person test, the Commission has held an
operator in violation of the standard, notwithstanding the operator's compliance with its
approved roof control plan. ld. at 478-479. Moreover, as required by the very language of the
standard, the Commission has required the Secretary to prove that the cited area was one "where
persons work or travel," under normal circumstances. Cyprus Empire Corp., 12 FMSHRC 911,
917 (May 1990).
It is well recognized, as the Secretary points out, that roof falls pose one ofthe most
serious hazards in the coal mining industry. United Mine Workers ofAmerica v. Dole, 870 F.2d
662, 669 (D.C. Cir. 1989). The Commission has noted the inherently dangerous nature of mine
roofs, and attributed the leading cause of death in underground mines to roof falls.
Consolidation Coal Co., 6 FMSHRC 34, 37 (January 1984); Eastover Mining Co., 4 FMSHRC
1207, 1211 ~d n.8 (July 1982);.Halfway Incorporated, 8 FMSHRC 8, 13 (January 1986).
Consol argues that the Secretary has not proven a violation of section 75.202(a) since the
cited area bad been supported in accordance with the approved roof control plan, a pre-shift
examination had assessed the area as safe for travel, and upon discovery ofthe unstable roof, the
area was flagged-off and miners were prevented from travel or work therein, until additional roof
support was installed (R. br. at 12, 13).

s/30 C.F.R. § 75.202(a) provides that: The roof, face, and ribs of areas where persons
work or travel shall be supported or otherwise controlled to protect persons from hazards related
to falls of the root: face or ribs and coal or rock bursts.

1904

The Secretary contends that the evidence supports Inspector Pike's conclusion that the
roof was failing, that the Rend Lake Mine has a history of roof falls and problems with
inadequately supported roof areas, and that miners worked and/or traveled in the cited area
(P. br. at 16-18).
Inspector Michael Pike, employed by MSHA for approximately 11 years, has been a roof
control specialist since 1993 (Tr. 158-159, 161). He testified that he reviewed the mine's
violation history prior to conducting the inspection, went down into the mine with the midnight
shift, began travel with the inspection team to the other side of the mine, and shortly thereafter
carne upon the pwnpers at the cited area (Tr. 162, 164). Inspector Pike discussed the roof
condition which he observed in the following testimony:
Q . Now, please describe the condition which led--led you to issue the citation.
A. The mine roof had fallen from around the roof bolt that had been installed. I
checked it. While we was sitting there, I noticed on both ribs the thing had been
working and was flaking out.. .. Mr. Filkins and Mr. Sauerhage was there with me.
I inspected the top. The top started working and bwnping. I told Victor
[Sauerhage] they needed to get somebody up there and start doing something with
it--the mine roof would probably faiL Victor informed me that he would go back,
call Mr. Pigg, get somebody up there to look at the condition. While we was
sitting there, a crack appeared in the mine roof, which ran from one corner to the
other. It started working in the crosscuts offthe side of the intersection. That this
area was closed up, due to the hazard that it presented to people traveling in the
area (Tr. 164-165).

•••••
Q. Let's talk about "working." When you say the word, what do you mean by
that?
A. What the top was doing was flaking out between the ribs and the roof on both
rib lines (Tr. 169).

•••••
Q. When you talk about ribs, you mean the sides?
A. Yes, sir,just like this room. This--the walls here would be a rib. The ceiling
would be your roof. And it would come approximately a foot from your rib out
into the mine roof, and it was working. The coal was working. It would rome out
to approximately ten feet from the corner of the crosscut, back into the main line

1905

entry on both sides. The top, when I say it was bwnping, it thumped where the mine roof was
cracking. And there was a crack that went from one comer to the other comer of the rib on it
(Tr. 169).

•••••
The Court: Is [sicJ working and bwnping the same? Working's flaking?
A. Working is the flaking part of it. Bumping is where your mine roof, itself, is
cracking, and you can hear it. It didn't do it all the time, but it--it bumped three or
four times there.

Q. Is that a sign of anything?
A. Yes, sir. It's a sign of roof failure.
The Court: When a roof fails, is there always bumping and working before it fails?
A. No, ma'am, not all the time.
The Court: So one would hope that they get this warning.
A. Yes, sir--yes, rna 'am (Tr. I 70).
Q. Let's go back now to--you said there was--there was a roof bolt that was loose
when you observed it?
A. There was a roof bolt on the right-hand side going in where the mine roof had
fell from around it. A rock had fallen down there, and that's what stopped the
pumpers from going in.

Q. What do you mean by the bolt was loose?
A. You-you take a roofbolt, and you bolt it tight to the roof. And what had
happened: the mine roof had fallen from around the bolt hanging there.
Approximately a foot, a foot and a half of it was hanging where there was no mine
roof, and the bolt was not intact with the surface. So the bolt was not-had its
bearing surface to support the mine roof there. And just like I told Mr. Pigg, ifl
had come up there and just the bolt by itself was the only indication that I seen
that it was just hanging there, I would inform them to put- install a bolt. And a
citation would not have been issued. But in this instance where the mine roof was
flaking, and working, and while we was there, fell around another bolt, in my
opinion, through mining. This warranted a violation. And the top needed to be

1906

adequately supported. I investigated the roof, and there was approximately
45 feet in length of the area that was working and where it had flaked. I had went
plumb through the intersection all the way across and wa5 flaking over there on
that side. And the entry width was approximately 20 feet wide, so this covered a
pretty wide area, where if it was just the bolt, we could have flagged it, let the
·
people wen~ [sic] around the belt
(fr. 173-175).
· Walkaround representative Melvin Filkins, a rock dust motorman, has worked at the
Rend Lake Mine in excess of twenty-six years (Tr. 212). Filkins described the roof condition
which he had observed in the following testimony:

Q. Please describe the condition you observed, which was the cause for that citation.
A. There was two or three roof bolts hanging down more than the other ones was, and

there was some flaking off of the roof. And it was wet bottoms there, hitting the bottoms,
and working on the rib line.
Q. Are these typical conditions you see at the Rend Lake mine?

A. No, sir (Tr. 213-214).

•••••
Q. Was the roof working, based on your observation?
A. I~ was flaking off and working along--along the rib line (fr. 219) .

•••••
The Court: Mr. Filkins, were you alanned by what you saw?
A. Yeah. It wasn't a good situation. Needed to be corrected
(fr. 238).
Pumper Robert Carpenter, who has been employed at the Rend Lake Mine in excess of
eighteen years (fr. 240), testified that he and fellow pumper Dewey O'Daniel had stopped their
scooter twenty-five feet or so of where some rock and top coal had already "fallen out" onto the
main east travelway (Tr. 241,243, 244).
Foreman Victor Sauerhage, involved in the mining industry since 1974 and employed at
the Rend Lake Mine since 1987 (fr. 255), testified to observing "a small amount of rock in the
roadway,, but that he did not go to the area and examine the roof condition himself (fr. 262263).

1907

Shift foreman Robert Pigg testified that around 12:20 to 12:30 a.m., while at the Nason
bottom, he was summoned by foreman Sauerhage to the cited area (Tr. 286). He testified that
upon his immediate arrival at the area, he observed a loose bolt on the north rib and a pile of rock
over a three to four foot area, and Inspector Pike informed him of the roof conditions that be had
observed (Tr. 287, 289). Foreman Pigg then explained that he conducted his own inspection of
the area from the front and behind from the belt entry, since Inspector Pike would not permit him .
to travel through the area, but that he failed to hear any bwnping, see any cracking or flaking, or
any other signs of the intersection working (Tr. 288-289,291,293-294, 314). While he stated
that he did notice some stress cracks, he concluded that they were common to the mine and did
not appear to be indicative of recent working; it was his opinion that the condition did not
indicate that the roof was about to fall (Tr. 293, 295).
·
It is clear from the record that only Inspector Pike and walkaround representative Filkins
actually went under the area and investigated the roof condition (Tr. 218). Filkins, a long time
miner at Rend Lake and familiar with the history and conditions in the mine, corroborated
Inspector Pike's testimony, and therefore, I credit their statements as an accurate depiction ofthe
cited roof condition. Accordingly, I find that the roof was unstable, in that it was working and
bumping to a degree that signaled roof failure.
ln applying the reasonably prudent person test to the facts of this case, it is necessary to
resolve the length of time that the unstable roof condition existed. I credit Inspector Pike as
knowle9geable in the field of roof control, having conducted hundreds of roof inspections
during his tenure with MSHA (Tr. 158~ 161 ). He testified that, based on the cracks and the size
of the rock pile stacked along the ribs, the condition had not l1ill occurred (Tr. 206). The record
establishes that the pre-shift examination was conducted by Fred Baker between the hours of
9:00 and ll :00 p.m., and that he probably traveled through the main east travelway and
proceeded to t~e Nason bottom to record his entries in the examiner's book somewhere between
10:30 and II :00 p.m. (Tr. 282-283,286, 312-313). Shift foreman Pigg testified that examiner
Baker only reported .the main east travel way to be rough and muddy in a couple of places
(Tr. 277). While not calling into question the qualifications of examiner Baker, based on
Inspector Pike's expertise and observations, I credit the inspector's opinion that the roof had
been working for some time in advance of the pumpers discovering the fallen rock, and conclude,
therefore, that a reasonably prudent person would have detected signs of the failing roof during
the pre-shift examination. I pote that the best evidence of the roof condition at the time of the
pre-shift examination would have come from Fred Baker, himself, but that he was not called to
k~~

.

The record is equally clear that the cited area is one in which miners routinely worked
and traveled. Walkaround representative Filkins testified that the main east travelway was
frequently traveled on a daily basis by men and equipment (Tr. 214-216). Foreman Sauerhage
testified that, since another side of the mine had opened up, the main east travelway was just a
way of getting from one side of the mine to the other (Tr. 265-268). Shift foreman Pigg testified

1908

area, parts runner-s from the Sesser side delivering parts to Nason sections, examiners on their
routes, the general underground foremen, as well as he, himself, would be traveling the main east
travelway (Tr. 298-299). Pwnper Carpenter testified that the main east travelway is a busy
thoroughfare (Tr. 242). As the Secretary has correctly pointed out in her brief, the precedent
relied upon by Consol, Energy West Mining Co., 18 FMSHRC 1628 (September 1996) (ALJ);
Cyprus Empire Corp., 12 FMSHRC 911 (May 1990); and Utah Fuel Co., 18 FMSHRC 1469
(August 1996) (ALJ), is distinguishable from the instant case, as those cases involve
circwnstances in which operators had taken prior measures to address dangerous r<;><>f conditions,
and in Cyprus and Utah Fuel, no persons were found to have worked or traveled in the affected
areas (R. br. At 9-11; P. br. at 19-20). While in this case, it is undisputed that, upon discovery of
the condition, Inspector Pike prohibited work and travel through the affected area and had it
flagged-off until supplemental roof support was installed, it has also been established that the
pwnpers and overtime workers were on thei1 way into the area (Tr. 164, 204-205). The pumpers
had no official warning, and but for' the good fortune of having encountered the fallen rock, they
might have suffered serious injury. Consol's argument that the pwnpers were in a position to
warn others of the danger does not address the operator's affinnative duty to have provided
warning to the pwnpers, as well as to the persons who were, subsequently, to travel to the area.
Any such interpretation of Li-)e duty required by the standard would leave the envisioned
protection to the discretion of individuals who do not necessarily bear that responsibility.
Accordingly, having found that the roof was unstable, that a reasonably prudent person should
have detected these signs of roof failure during the pre-shift inspection, and that miners traveled
and worked in the area, I conclude that Consol violated section 75.202(a) by failure to take
adequate measures to protect persons from hazards related to roof fall.
2. Significant and Substantial
Section 104(d)( I) of the Mine Act designates a violation S&S when it is "of such a nature
as could significantly and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard." A violation is properly designated S&S "if, based upon the particular
facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious nature." Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 .FMSHRC 1, 3-4 (January 1984), the Commission set forth the
four criteria the Secretary must establish in order to prove that a violation is S&S under National
Gypsum: 1)the underlying violation of a mandatory safety standard; 2) a discrete safety hazardthat is, a measure of danger to safety-contributed to by the violation; 3) a reasonable.likelihood
that the hazard contributed to will result in an injury; and 4) a reasonable likelihood that the
injury in question will be of a reasonably serious nature. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F. 3d 133, 135 (Th Cir. 1995); Austin Power, Inc., v. Secretary, 861 F. 2d 99, 103104 (5111 Cir. 1988), affg 9 FMSHRC 2015,2021 (December 1987) (approving Mathies criteria).
Evaluation of the third criterio~ the reasonable likelihood of injury, should be made in the

1909

context of"continued normal mining operations." U.S Steel Mining Co., 6 FMSHRC 1573,
1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based "on the
particular facts surrounding the violation." Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988).
Inspector Pike testified on behalf of the Secretary that he determined the reasonable
likelihood of someone getting injured or kill~d based upon "the mine roof working, and the crack
in it had already filled out from around some bolts and cutting down the ribline," as well as the
fact that most fatalities ate caused by roof falls (Tr. 177-179). He also gave unrefuted testimony
that the roof had required use often-foot bolts for supplemental support, due to breaks found in
the roof strata as high as seven feet (Tr. 178-179). In his opinion, then, his conclusion that
someone would have been killed if the roof had fallen had been a reasonable one, despite the fact
that most vehicles that traveled the roadway had canopies (See Tr. 171-172, 192-197).
The Secretary is not required to prove that miners were actually exposed to the roof
hazard at the time of the inspection, as long as it is shown that a miner could be at risk during the
course of normal mining operations. See Consolidation Coal Co., 15 FMSHRC 214 (February
1993) (ALJ) (citing 8 FMSHRC 12). In that context, the evidence indicates that rock was· falling
during the inspection, at least the pwnpers and overtime workers would have traveled through
the affected area, and the pumpers conceivably could have worked in the wet travelway where a
permanentpumpwaslocated(Tr.164-165, 172-173,175, 195-196,260). Consequently, based
on the evidence, I find that there was a reasonable likelihood that a roof fall contributed to by the
unstable roof would result in serious injury, including death, to the pumpers and/or the overtime
workers. Accordingly, I find that the violation was S&S.
3. Civil Penalty
Addressing the six penalty criteria set forth in section 11 O(i), as discussed above, Consol
is a large operator,.with an insignificant history of prior violations, and the parties have stipulated
that the proposed ci~il penalty of$903.00 will not affect Consol's ability to continue in business.
Respecting consideration of the gravity criteria, I find the violation to be serious, in that
the potential injury to a miner traveling or working in the area ranges from cuts, bruises, broken
bones to death. Shift foreman Pigg's assessment as to the "normalcy" of the cited roof condition
(Tr. 165-166, 295), despite the Rend Lake Mine's prior history of unstable roof and roof falls
(Tr. 191-192, 217,221, 225-226, 227-228, 230-232), when combined with the indication, based
on the totality of the evidence, that tangible signs of the unstable roof existed at the time of the
pre-shift inspection, suggests a certain degree of complacency on the part ofConsol. However,
based upon Consol' s immediate and appropriate abatement of the condition, I attribute moderate
negligence to Consol. Consequently, having considered Consol's large size, insignificant history
of prior violations, seriousness of the violation, good faith abatement and moderate degree of
negligence, I find that a civil penalty of$903.00 is appropriate.

1910

ORDER

Accordingly, Citations No. 3839842 and 4265333 are AFFIRMED, and Consol is
ORDERED TO PAY civil penalties of$953.00 within 30 days ofthe date ofthis decision. On
receipt of payment, this proceeding is DISMISSED.

()>w&-R.~
~lineR. Bulluck

Administrative Law Judge
Distribution:
Ruben R. Chapa, Esq., Office of the Solicitor, U.S. Department ofLabor, 230 South Dearborn
Street, 8 1h Floor, Chicago, II 60604 (Certified Mail)
Elizabeth Chamberlin, Esq., CONSOL, Inc., Consol Plaza, 1800 Washington Road, Pittsburgh,
PA 15241-1421 (Certified Mail)
dcp

1911

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

DEC 2 9 1997
EMPIRE IRON MINING PARTNERSHIP, : CONTEST PROCEEDINGS
Contestant
Docket No. LAKE 97-37-RM
Order No. 4537189; 1/21197
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Docket No. LAKE 97·38-RM
ADMINISTRATION (MSHA),
Order No. 4537190; 1/21/97
Respondent
Docket No. LAKE 97-39-RM
Order No. 4537216; 2112/97
Docket No. LAKE 97-53-RM
Order No. 4537285; 3/ 10/97
Mine ID 20-0 1012
Empire Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 97-4l·M
A.C. No. 20-01012-05618

V.

Docket No. LAKE 97-47-M
EMPIRE IRON MINING PARTNERSHIP, : A.C. No. 20-01012-05616
Respondent
Docket No. LAKE 97-50-M
A.C. No. 20-01012-05620
Docket No. LAKE 97-51-M
A.C. No. 20-01012-05621
Docket No. LAKE 97-69-M
A.C. No. 20-01012-05625
Empire Mine

1912

DECISION
Appearances: Christine M. Kassak Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois, and Thomas J. Pavia~ Conference and Litigation
Representative, Mine Safety and Health Administration, U.S. Department of
Labor, Peru, Illinois. for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., Pittsburgh, Penns¥lvania, for
Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Notices of Contest and Petitions for
Assessment of Civil Penalty filed by Empire Iron Mining Partnership against the Secretary of
Labor, and by the Secretary of Labor, acting through her Mine Safety and Health Administration
(f0SHA), against Empire, respectively, pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The company contests the issuance to it of two orders and
two citations. The Secretary's petitions allege nine violations of the Secretary's mandatory
health and safety standards and seek penalties of$10,054.00. For the reasons set forth below, l
approve the parties' settlement agreement, affirm one contested order, vacate three contested
citations and assess penalties of$5,122.00.
A hearing was held on September 3 and 4, 1997, in Marquette, Michigan. The parties
also submitted post-hearing briefs in the cases.

Settled orders and citations
At the beginning of the hearing, counsel for the Secretary announced that the parties had
settled all bl;lt four of the violations. As part of the agreement, the Secretary mQved to vacate
Citation No. 4537051 in Docket No. LAKE 97-47-M and Citation No. 4537206 in Docket No.
LAKE 97-51 -M and the motion was granted. (Trl. 14-15.)1 The parties agreed to reduce the
penalty for Citation Nos. 4537187 and 4537188 and Order Nos. 4537189 and 4537190 in Docket
No. LAKE 97-50-M, which orders were contested in Docket Nos. LAKE 97-37-RM and LAKE
97-38-RM, from $7,448.00 to $3,724.00. (Trl. 15-16.) The parties also agreed to modify Order
No. 4537047 in Docket No. LAKE 97-47-M by deleting the "significant and substantial"
designation and to reduce the penalty from $382.00 to $100.00. (Trl. 16.)

A separate transcrip~ beginning with page 1, was prepared for each day of the hearing.
In this decision, the transcript for September 3 will be referred to as "Trl." and the transcript for
September 4 will be referred to as "Trll."
1

1913

After considering the parties' representations, I concluded that the settlements were
appropriate under the criteria set forth in section llO(i) of the Act, 30 U.S.C. § 820(i), and
informed the parties that I would approve the agreement. (Tri. 17.) The provisions of the
agreement will be carried out in the order at the end of this decision.
Citation No. 4537093 in Docket No. LAKE 97-41-M, Order No. 4537055 in Docket
No. LAKE 97-47-M and Citation Nos. 4537216 and 4537285 in Docket Nos. LAKE 97-39-RM,
LAKE 97-53-RM and LAKE 97-69-M were contested at the hearing. The order.and citations
were tried at the hearing and will be discussed in this decision in the following order: Order
No. 4537055, Citation No. 4537216, Citation No. 4537093 and Citation No. 4537285.

Contested Matters
Order No. 4537055, Docket No. LAKE 97-47-M
Order No. 4537055 alleges a violation of section 56.14100(b), 30 C.F.R. § 56.14100(b),
of the Secretary's regulations. That regulation requires that: "Defects on any equipment,
machinery, and tools that affect safety shall be corrected in a timely manner to prevent the
creation of a hazard to persons." The machinery at issue in this order is a metal shear used to cut
metal plate of various sizes. The parties stipulated that Larry Smith incurred a lost time back
injury in an accident that occurred while operating a Pacific metal shear in the fabricating shop
on September 10, 1996, and that Marvin Swanson had previously reported back soreness on
August 29, 1996, resulting from an incident with the same machine on August 28, 1996.
(Tri. 30-31.)
An injury report for the September I 0 injury was filed with MSHA on September 23,
1997. Inspector Dominic Vilona conducted an investigation of the incident during a regular
inspection of the mine on December 12, 1997. As a result of his Investigation, he issued Order
No. 4537055. He found that:

The restricted duty back injury that occurred on 9-l 0-96
was directly related to a defect on the Pacific Metal Shear, serial
S 10902, located in the fabricating shop. The table of the shear is
provided with 17 air operated balls which assist the machine
operator when pushing steel in the shear. Larry Smith was trying
to feed a 12 foot long, 6 foot wide by 3/4 inch thick plate into the
shear with the help of his partner, Gary Waterman. This is when
Larry injured his back. At least 8 out of 17 balls were reported
inoperative on 8-28-96 when another employee strained his back
performing the same work. Foreman Rich Hill engaged in
aggravated conduct constituting more than ordinary negligence in
that he was aware that their [sic] was a problem with the feed assist
balls and that employees were operating this machine.
(Govt. Ex. 3.)

1914

In discussing the predecessor to this regulation? the Commission held that "it is
appropriate to evaluate the evidence in light of what a 'reasonably prudent perso~ familiar with
the mining industry and the protective purpose of the standard, would have provided in order to
meet the protection intended by the standard.' See, e.g., Canon Coal Co., 9 FMSHRC 667, 668
(April 1987); Quinland Coal, Inc., 9 FMSHRC 1614, 1617-18 (September 1987).n . Ideal Cement
Co., 12 FMSHRC 2409,2415 (September 1990) (Ideal I). Applying this test, I find that Empire
violated the regulation.
To establish a violation of this regulation, the Secretary must show: ( 1) that there was a
defect in the metal shear; (2) that the defect affected safety; and (3) that the defect was not
corrected in a timely manner to prevent the creation of a hazard. It is the Secretary's po:::ition
that the defect in this case was the failure of 8 of the 17 air lift transfer balls used to assist in
positioning steel on the shear to function; 3 that the defect affected safety because the ~on
functioning balls made it hard to move the steel on the shear resulting in the two back injuries;
and that the defect was not corrected in a timely manner because the operator was put on notice
by the first back injury, if not before, that the defect created a hazard and had not corrected the
defect before the second injury occurred. On the other hand, while the Respondent concedes that
some of the balls were not functioning, it argues that the defect did not affect safety and that,
even if it did, it was corrected in a t_imely manner.
· While there may be some dispute as to exactly how many of the transfer balls were not
functioning, there is no dispute that some were not functioning. The Commission has previously
held that: "In both ordinary and mining industry usage, a 'defect' is a fault, a deficiency, or a
condition impairing the usefulness of an object or a part. Webster's Third New International
Dictionary (Unabridged) 591 ( 1971 ); U.S. Department of Interior, Bureau of Mines, A
Dictionary ofMining, Mineral, and Related Terms 307 (1968)." Allied Chemical Corporation,
6 FMSHRC 1854, 1857 (August 1984). I find that the failure of some of the transfer balls to
function impaired the usefulness of the shear. Therefore, I conclude that there was a defect in the
metal shear.

30 C.F.R § 56.9002 (1987) provided: "Equipment defects affecting safety shall be
corrected before the equipment is used."
2

There are recessed metal balls in two rows across the table of the shear. (Resp. Exs. 4
and 6.) When heavy metal plate is being positioned on the table to be sheared, the balls can be
raised to table level by air pressure and as the plate is pushed onto the table, the balls rotate
making it easier to move the metal.
3

1.91.5

Turning to the second element, whether the defect affected safety, I note that the
Commission has stated that: "The phrase 'affecting safety' ... has a wide reach and the 'safety
effect of an uncorrected equipment defect need not be major or immediate to come within that
reach."' Ideal Cement Co., 13 FMSHRC 1346, 1350 (September 1991) (citations omitted) (Ideal
If). The transfer balls purpose was to make it easier to move large pieces of steel onto the shear.
The harder it is to move heavy metal on the shear table, the more likely that a back strain or other
type of injury could occur. Thus, while there may have been other factors that contributed to the
back injuries in this case~ such as the floor not being level, I conclude that the defect comes
within the "wide reach" set out by the Commission, and was a defect affecting safety.•
That leaves the third element, whether the defect was corrected in a timely manner.
Empire argues that "timely" does not mean immediately and that it corrected the defect in a
timely fashion. The regulations do not define "timely," nor has the Commission had occasion to
address this question. However, the dictionary defines "timely" as "done or occurring at a
suitable time." Webster's Third New International _Dictionary (Unabridged) 2395 ( 1986)
(We bster 's) . And the Secretary has indicated that a suitable time depends on the defect:
If safety defects are detected on any equipment, machinery
or tools, the required compliance measures vary with the degree of
the hazard. The . . . rule requires that aU safety defects be
corrected in a timely manner and that, in instances where continued
use would pose a risk of injury, the correction must be made
immediately unless the defective equipment is removed from
service and identified as defective. The defective condition must
be corrected before the equipment is returned to service.

Safety Standarrjs for Loading, Hauling, and Dumping and Machinery and Equipment at Metal
and Nonmetal Mines, 53 Fed. Reg. 32,496, 32,504 (1988) (Safety Standards).
Although there is evidence that management was put on notice in the spring of 1996 that
some of the transfer balls were not working, the fabrication shop had been moved from town out
to the mine during that period and all the equipment had to be erected again. Consequently, it
was only shortly before Swanson7s injury on August 28, that the shear had resumed operation.
Accordingly, I find for the purpose of this decision, that Rich Hill, the fabrication shop foreman,
was put on notice on August 29 that there was a defect affecting safety on the metal shear.

In connection with this conclusion, I find the testimony of Richard Bradley, who had
never used the shear, and Ed Tresedder, that the transfer balls were merely a "convenience"
inapposite. Likewise, I find the testimony that there may have been other means of getting the
plate onto the shear, such as a crane or forklift, not relevant to this determination. The important
point is that the balls were part of the machine, and their failure to function could, and did, result
. .. . .
m mJunes.
4

1916

Hill initiated an investigation of the incident which was completed on September 4, 1996.
The Safety System Final Investigation Report, (Govt. Ex. 5), found that the immediate causes of
the injury were "improper handling/loading/placement, improper position for task," that the basic
causes were "inadequate capability, inadequate maintenance" and that "Marvin was probably
trying to push harder than he is physically capable. Some of the transfer balls which aid the
movement of the plate were not working properly which caused more friction, requiring more
bull work to move the plate." As preventive action the report indicated that the equipment
should be repaired by "_repair[ing] transfer balls which are not working."
Hill had only been the foreman of the fabrication shop since March 1996. Prior to that he
had never worked in the fabrication shop and he had no training in running the fabrication shop.
Although he had determined that the transfer balls had to be repaired, he did not know how to do
it. He checked the manual for the shear, but it provided no help. He called the shear
manufacturer who in tum told him to call the transfer ball manufacturer. He did not, however,
ask any of the shop employees for their input.
Consequently, nothing had been done when Smith's back injury occurred on September
10, 1996. Fortunately, Byron Tosseva, foreman of the welding shop, happened to overhear some
of the employees discussing Smith's injury, inquired what had happened, and told the men to
"shut the machine down, lock it out and we'll get it fixed." (Tr. 202-03.) Gary Waterman, a
fabrication shop employee, figured out bow to remove the balls, clean and replace them and the
machine was ready to operate the next day. Hill, who still had not received any guidance from
either manufacturer,5 initiated a work order to account for the machine's down time, describing
the work as: "repair transfer balls on Pacific shear. Clean, adjust or replace all the transfer
balls." (Resp. Ex. 1.)
Empire asserts that Hill's actions in contacting the manufacturers was reasonable and that
he was trying to correct the problem in a timely manner. I do not agree. What he should have
done was what T osseva, who knew no more about the machine than be, did, i.e. shut down the
machine and repair it. I find Hill's response to the problem simply unreasonable. Not knowing
anymore on September 10 than he knew on August 29 he still was able, after Tosseva bad acted,
to direct that the transfer balls be "cleaned, adjusted or replaced., He could have done the same
thing on August 29 or September 4. Accordingly, I fmd that the defect was not corrected in a
timely manner.
Section 56.1 of the regulations, 30 C.F.R § 56.1, states: "The purpose of these standards
is the protection of life, the P!omotion ofhealth and safety, and the prevention of accidents." I
fmd that a reasonably prudent person familiar with the mining industry and this purpose would
have repaired the shear immediately after Swanson reported his injury and the reasons for it on
August 29, to prevent a similar injury, and would not have permitted work to continue while he

5 He finally received something in January 1997.

1917

waited for guidance from the manufacturer. Therefore, I conclude that Empire violated section
56.141 OO(b) of the regulations.
Significant and Substantial
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l),
as a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A violation is properly designated S&S
"if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature."
Cement Di,·ision, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FAfSHRC. 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 10304 (5th Cir. 1988), affg Austin Power. Inc., 9 FMSHRC 2015, 2021 (December 1987)
(approving }.fathies criteria). Evaluation of the criteria is made in terms of "continued normal
mining operations." US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The
question of whether a particular violation is significant and substantial must be based on the
particular facts surrounding the violation. Texasgu/f. Inc., 10 FMSHRC 498 (April 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (December 1987).
The inspector found the violation to be S&S because two back injuries had occurred
before the shear was repaired. The Respondent argues that the violation is not S&S because the
Secretary did not show that the transfer balls were the cause of either injury. While it is true that
the evidence does not establish that the failure of the transfer balls to operate was the only cause
of the injuries, it does show that it was a contributing cause. Furthermore, since there is no
evidence that similar back injuries occurred after the balls were fixed, it appears that they were a
significant part of the injuries.
I find that the failure of the transfer balls to operate properly made it reasonably likely
that an injury would occur. The parties stipulated Smith suffered lost time due to his injury.
Therefore, it is apparent that the injury was reasonably serious. Accordingly, I conclude that the
violation was "significant and substantial."
Unwarrantable Failure
The inspector also found that this violation resulted from Empire's "unwarrantable
failure" to comply with the regulation. The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by a mine operator in relation to
a violation of the Act. Emery Mining Corp., 9 FMSHRC 1997,2004 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007,2010 (December 1987). "Unwarrantable

1918

failure is characterized by such conduct as 'reckless disregard; ' intentional misconduct,'
'indifference' or a ' serious lack of reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh
Coal Corp. 13 FMSHRC 189, 193-94 (February 1991)." Wyoming Fuel Co., 16 FMSHRC 1618, .
1627 (August 1994).
Empire argues that the violation did not result from an unwarrantable failure because
" [g]iven the minor nature of the condition reported by Mr. Swanson,_it was appropriate for Mr.
Hill to proceed as he d jd to investigate the proper way to repair the air-assisted balls." (Resp. Br.
at 14.) Swprisingly, the Secretary did not question the inspector as to why he found the violation
to be an unwarrantable failure, nor did she discuss unwarrantable failure in her brief.
Nevertheless, I conclude that this violation resulted from the Company •s unwarrantable failure to
comply with the regulation.
The nature of the injury makes no difference on this issue. It would be unreasonable to
assume that because Swanson's back injury did not require any lost time, that any future back
injuries would also be minor. It is the fact of injury that is significant in this case. Swanson's
inj ury put Hill on notice that the defective transfer balls created a hazard for his employees.
Because the defect created a hazard, he should have shut the shear down and tagged it out
immediately. His nonchalance in not doing so demonstrated an indifference that rdises the
violation to the level of an unwarrantable failure .

Citation No. 4537216. Docket Nos. LAKE 97-39-RM and LAKE 97-69-M
The No.2 ore crusher belt is about 2,100 feet long. The belt itself is 60 inches wide and
is 43 inches above the surrounding floor. Up near the head of the belt, there are 1-beams on
either side of the belt, the tops of which are also 43 inches above the floor, extending along the
belt for about 30 feet. The top surface of each I-beam is 10 inches wide. The beams are part of
the structural steel for the conveyor belt bed.
On February 12, 1997, as part of a regular mine inspection, Inspector Vilona was walking
along the No. 2 belt. He observed footprints in the dust on top of one of the 1-beams. Based on
the footprints, the fact that he was told that repair work was occasionally performed on the belt in
that area, and the fact that there were no handrails on the 1-beams, he concluded that a violation
of section 56.11 027 of the regulations, 30 C.F.R § 56.11027, had occurred. Consequently, he
issued Citation No. 4537216, which states: "The belt repair area located at the head end of the 2
belt was not equipped with handrails. The area measures about 30' long 7' wide and 43" high. A
60" wide belt runs down the center. Footprints were observed along the 10" wide steel on each
side of the belt. Work is done here a few times a year, 2 men on a crew. Fall hazard."
Section 56.11027 requires, in pertinent part, that: "Scaffolds and working platforms shall
be of substantial construction and provided with handrails and maintained in good condition." .
The Secretary maintains that the 1-beams are working platforms. The Respondent contends that
they are not and that, even if they are now found to be, the company did not have adequate notice

1919

that the regulation applied to this area. I find the Secretary has not established that the 1-beam
was a working platform.
Since the regulations do not define ''working platform," the standard must be evaluated
under the "reasonably prudent person" test. Ideal I, supra. The dictionary defmes "platform" as
"a horizontal flat surface usu[ually] higher than the adjoining area." Webster's 1735. The
regulations define "working place" as "any place in or about a mine where work is being
performed." 30 C.F.R. §. 56.2. Therefore, it seems logical that a "working platform" is a "raised,
horizontal, flat surface where work is being performed." Applying that defmition to this case, it
is apparent that the issue is not whether the 1-beams were a raised, horizontal, flat surface, but
whether work was being performed on them.
Both of the company's witnesses, Gordon Nelson, Maintenance Coordinator, and
William Hansard, Safety Coordinator, testified that the 1-beam was only useq to step onto the
belt when belt repairs were performed. They claimed that no work was done while standing or
kneeling on the 1-beam. The Secretary's witness, Ray Ball, a former plant repairman, was more
equivocal. When pressed on the issue, he testified as follows:
Q. Did you ever do work while you were on the I-beam?
A. I think--- like I said earlier, wherever you spotted the belt you

might have had to stand on the end of the beam to guide your
cooker in underneath the belt.
Q. I thought that when you used the cooker you spotted it ahead of
the 1-beam?
A. You had the 1-bearn here and it stopped and then you had an
opening where you put your cooker underneath. So if you got it
hanging by the crane and you're trying to get underneath here,
somebody' s standing here trying to wiggle it underneath the crane.

Q. Would that be on the !-beam or in front of the 1-beam?
A. Sometimes you're on the 1-beam and sometimes you're in front
of the 1-beam.

(Trl. 322.)
The testimony showed that the cooker to which Ball was referring is used only two or
three times a year. Thus, at best, the evidence demonstrates that an employee may ~r may not
stand on the platform two or three times a year to guide the cooker onto the area of the belt being

1920

repaired. In addition, the evidence is that when the cooker is used now, the handrails, installed
by the company to abate this violation, have to be removed.
I find that so little, if any, work is done on the 1-beam that the 1-beam is not a " working
platform" within a reasonable interpretation of the regulation. To find that this de minimis use of
the 1-beam makes it a working platform, results in the paradoxical circwnstance of the required
handrails having to be removed to perform the very function that makes them required.
Accordingly, I conclude that Empire did not violate section 56.11027 and will vacate the citation.
Citation No. 4537093. Docket No. LAKE 97-41-M
On Thursday, January 2, 1997, Glenn Wing, a surveyor at the Empire Mine, was coming
to work at about 6:30a.m. While traveling on a two lane, blacktop, access road on mine
property, the rear of his car slid while exiting a curve and he collided with a pickup truck driven
by an employee at the Tilden Mine. Wing received a few small cuts and a sore back as a result
of the accident.
The week previously, the road had been closed because a pipeline had been leaking
causing ice to form on the road in the area where the accident occurred. The leak was repaired
before the road was reopened and the pipeline was not leaking on January 2 .
The night before the accident, it snowed two to three inches. That morning it snowed
another Y2 inch. Wing described the road conditions as follows: "Basically looked like there had
been a fresh snowfall with approximately a halfto an inch of snow on the road, and the lanes
where the cars had been driving, where the tires had been running was mostly wet with slush on
the rest of the roadway ." (TriL 68.)
Inspector Stephen Field was conducting an inspection of the Tilden Mine when he
learned of the accident and was instructed by his supervisor to investigate it. He arrived at the
accident scene six or seven hours after it had occurred. Based on his investigation, he issued
Citation No. 4537093 because:
An employee on his way to work could not maintain
control of his vehicle while rounding a comer on the mine access
roadway near the Empire pipeline crossing. The employee vehicle
slid into the opposite lane colliding with a vehicle traveling in the
. opposite dire~tion. Two patches of ice, cause by a pipeline leak
during the previous week, extended across the roadway in 2 areas
near the corner. An accident of this nature has the potential to
cause serious injuries to persons involved. Reportedly, there was
about 1" of snow, ice and slush on the roadway.

(Govt. Ex. 7.)

1921

The citation initially alleged a violation of section 56.9101 ofthe regulations, 30 C.F.R.
§ 56.9101,6 but was amended to allege a violation of section 56.11016, 30 C.F.R. § 56.11016, on
August 19, 1997.7 Section 56. 11 016 requires that: "Regularly used walkways and travelways
shall be sanded, salted, or cleared of snow and ice as soon as practicable." The Secretary argues
that the Respondent violated this section because "the ice was not removed from the tfavelway as
soon as was practicable." (Sec. Br. at 24.) However, that is not what the standard requires; the
standard requires that iftJ:lere is snow and ice on a walkway or travelway, the operator may sand
it, salt it or clear it as soon as practicable.
In this case, the company elected to salt the road, although the evidence of this is not
overwhelming. The inspector, who visited the scene some six or seven hours after the fact,
stated, when asked if he could tell whether the roads had been salted, "the roads were bare."
(Trll. 30.) Wing testified that: " It appeared because of the melt in the slush that there had been
salt on the road. . . . The impression I had was they had salted and it snowed a little bit after."8
(Trll. 68, 70.) Steven Laine, the man whose truck Wing hit, had only this to say about salt:
Q. Had you seen a salt truck operating while you were --1\. No.

Q . ---on the road? Did you see any evidence of salting or
sanding?
A. No.

(Tr. 84.) The only other testimony on this issue was from Steven Roberts, Safety Coordinator at
the mine, who ~:elated: "I believe [Inspector Field] had asked me whether the road had been
salted, and I didn't know the answer, so I called our pit area to find out and they had indicated
that it had been during the night shift." (Trll. 136-37.)
I find that a preponderance of the credible evidence demonstrates that the company had
salted the access road prior to Wing's accident. In making this finding, I am giving no weight to
the testimony of Laine on this issue because his "no" answer was not explained and it was

6

See discussion of Citation No. 4537285 infra for the requirements of this regulation.

7

The Respondent's objection to the amendment of the citation was overruled at the
hearing. (Trl. 21-28.)
8

Wing was not able to verify that he slid on the ice caused by the pipeline leak, which is
the theory of the Secretary's case, because he never went back to check on what he had slipped.
No one else testified that he had slipped on the ice patch.

1922

apparent from his testimony that he was shading it to support his lawsuit against Wing and the
company for this accident. Accordingly, I conclude that instead of violating the regulation, the
company complied with it. Consequently, I will vacate the citation.
Citation No. 453285. Docket Nos. LAKE 97-53-RM and LAKE 97-69-M
While driving home from work in his personal vehic1e on February 21, 1997, James
Beltrame attempted to pass a truck hauling material to the mine when he skidded on ice. His car
hit a snow bank and rolled over resulting in his receiving a broken rib and being off work for five
days. The road on which this occurred was on mine property. The attempted pass was in a
marked no passing zone.
Inspector Field went to the mine to investigate this accident on February 25. After
talking to Beltrame and viewing the accident scene, he issued Citation No. 4537286 alJeging a
violation of section 56.91 01 because:
An accident occurred on February 21, 1997 when an

employee on his way home from work failed to maintain control of
his vehicle on the mine access road. The employee vehicle, while
attempting to pass an over-the-road haulage truck, overturned after
sliding on ice and striking the snow bank on the opposite side of
the road . Consequently, the employee suffered a fractured rib
resulting in 5 days lost time and restricted duty. The roadway
speed was posted and this accident occurred in a no passing zone.
(Govt. Ex. 9.)
Section 56.9 101 provides: "Operators of self-propelled mobile equipment shall maintain
control of the equipment while it is in motion. Operating speeds shall be consistent with
conditions of roadways, tracks, grades, clearances, visibility, and traffic, and the type of
equipl)lent used." The Respondent asserts that this standard does not apply to the operation of
personal automobiles used by miners to travel to and from work. I agree.
This is a case of first impression. The Secretary has not cited any cases where a miner
has been charged with not maintaining control of his car going to and from work. It appears that
there are none. While it seems obvious that this regulation was never intended to apply to a
situation such as this, I will ~xamine it under the "reasonably prudent person" test. Ideal! supra.
I note first that a personal automobile, by definition, is not owned by the mine operator.
Nor was it being used by the miner in the performance of his duties at the mine. Secondly, the
standard is found in Subpart H of the regulations, which is entitled "Loading, Hauling, and
Dumping." The car was not being used to perform any of these functions. Third, there is no
mention in the final rule of these standards that they apply to personal automobiles. Safety

1923

Standards, 53 Fed. Reg. 32496 (1988). Finally, there is no evidence in the record that the
Secretary has ever, either in her Program Policy Manual or by some other means of public
notice, interpreted the regulation to include personal automobiles.
·
Furthermore, as suggested by the Respondent, if a personal automobile is mobile
equipment within the meaning of the regulations, it would have to be inspected each shift, 30
C.F.R. § 56.141 OO(a); the mine operator would have to maintain a record of defects found, 30
C.F.R. § 56.14IOO(c); it would have to have a service brake system, 30 C.F.R. § 56.14101; it
would have to have a backup alarm, 30 C.F.R. § 56.14132; and a warn-i ng would have to be
sounded before it could be started, 30 C.F.R. § 56.14200. It apparently would not, however,have to have seat belts. Personal automobiles are not listed among the specific types of mobile
equipment required to have seat belts installed in them. 30 C.F.R. § 56.14130(a). On the other
hand, cars are also not listed among the specific types of mobile ~quipment exempted from the
requirement. 30 C.F.R. § 56.14l30(f). Plainly, there was never any intention to include personal
automobiles as mobile equipment in the regulations.
Although the Commission has never had occasion to rule on this issue, there have been
some cases involving personal automobiles. In Energy West Mining Company, 15 FMSHRC
586 (April 1993), the Commission held that an injury sustained in a personal automobile accident
on mine property was a reportable injury under section 50.20 of the regulations, 30 C.F.R.
§ 50.20. The case turned, however, on the definition of reportable injury under the regulation,
"any injury to a miner," and not on whether a personal automobile was covered by the
regulations.
Two Commission judges have found violations of section 77.404(a), 30 C.F.R.
§ 77.404(a),9 when security guards were asphyxiated while on duty in their personal cars. Extra
Energy, Inc., 18 FMSHRC 1489 (Judge Melick August 1996); Madison Branch Management,
17 FMSHRC 1257 (Judge Feldman July 1995). In both cases
deaths were caused by
defective exhaust systems. In neither case, however, was the issue of whether the regulation
applied to personal automobiles addressed. Furthermore, the cases are distinguishable from the
instant case in that the personal automobiles were being used by the miners to perform their
duties at the mine.

the

I find that a reasonably prudent person, familiar with the mining industry and the
protective purposes of the Act, would not have recognized that section 56.9101 applies to the
operation of personal automobiles being driven home from work. Accordingly, I conclude that
Empire did not violate section 56.9101 and will vacate the citation.
·

9 Section 77.404(a) provides:

"Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment in unsafe condition shall by
removed from service immediately."

1924

Civil Penalty Assessment
The Secretary has proposed a civil penalty of $1~98.00 for Order No. 4537055 and the
parties have agreed on penalties of$3,824.00 for the settled order and citations. However, it is
the judge's independent responsibility to detennine the appropriate amount of penalty in
accordance with the six penalty criteria set out in section 11 O(i) of the Act. Sellersburg Stone
Co. v. FMSHRC, 136 F.2d .1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481,
483084 (April 1996)..
The parties stipulated that Empire worked approximately 1.9 million hours in 1995 and
that payment of the proposed penalties w!ll not affect Empire's ability to continue in business.
(Trl. 29-30.) With respect to the remaining criteria, since no evidence was presented that the
company did not demonstrate good faith in attempting to achieve rapid compliance after
notification of the violations, I find that Empire demonstrated good faith in this area. The
company's history of violations indicates an average number of prior violations. (Govt. Ex. 1.)
Therefore, I find that the Respondent's history of prior violations is neither good nor bad. I find
that the gravity of the violation in Order No. 4537055 was relatively serious in that moderately
serious injuries occurred as a result of it. I also find the level of negligence for that violation to
be high.
Taking all of this into consideration, I conclude that the penalty proposed by the
Secretary for Order No. 4537055 and the penalties agreed to by the parties for the settled
violations are appropriate. Accordingly, for Docket No. LAKE 97-47-M, I assess penalties of
$100.00 for Order No. 4537047 and $1,298.00 for Order No. 4537055. For Docket No. LAKE
97-50-M, I assess penalties of $1 ,862.00 each for Citation Nos. 4534187 and 4537188.

ORDER
Accordingly, Order No. 4537189 in Docket Nos. LAKE 97-37-RM and LAKE 97-50-M,
Order No. 4537l90 in Docket Nos. LAKE 97-38-RM and LAKE 97-50-M and Citation Nos
4537187 and 4537188 in Docket No. LAKE 97-50-M are AFFIRMED; Citation No. 4537216 in
Docket No. LAKE 97-39-RM and Citation No. 4537285 in Docket No. LAKE 97-53-RM, which
citations are also included in Docket No. LAKE 97-69-M, are VACATED; Order No. 4537047
in Docket No. LAKE 97-47-M is MODIFIED by deleting the "significant and
substantial"design~tion and AFFIRMED as modified, Order No. 4537055 in Docket No. LAKE
97-47-M is AFFIRMED and Citation No. 4537051 in Docket No. LAKE 97-47-M is
VACATED; Citation No. 4537093 in Docket No. LAKE 97-41-M is VACATED; and Citation
No. 4537206 in Docket No. LAKE 97-51-M is VACATED.

1925

Empire Iron Mining Partnership is ORDERED TO PAY civil penalties of$5,122.00
within 30 days of the date of this decision. On receipt of payment, these cases are DISMISSED.

~~~
Administrative Law Judge

Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 301 Grant St., 20'" Floor, Pittsburgh,
PA 15219-1410 (Certified Mail)
Christine M. Kassak Smith, Esq., Office of the Solicitor, U.S. Dept. of Labor, 230 S. Dearborn
St., 81" Floor, Chicago, IL 60604 (Certified Mail)
Thomas J. Pavlat Conference and Litigation Representative, MSHA, 2200 Marquette Rd., Suite
110, Peru, IL 61354 (Certified Mail)
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ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W. ()111 FLOOR
W ASBINGTON D.C. 20006-3868

Roveaber 18. 1997

SECRETARY OF LABOR
MJNESAFETY ANDHEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 97-198-M
A. C. No. 34-01273-05531

v.
Drumright Quany
QUAPAW COMPANY,
Respondent

ORDER TO PETITIONER TO SHOW CAUSE
ORDER TO SUBMIT INFORMATION
This case is before me pursuant to section 105(d) ofthe Federal Mine Safety and Health
Act of 1977. 30 U.S.C. § 815(d).
On September 11, 1997, the Secretary received the operator's notice of contest of civil
penalties, a copy of which was filed with the Commission on September 18, 1997, and assigned
the above-captioned docket number.
On November 6, 1997, the Solicitor on behalf of the Secretary mailed a petition for
assessment of penalty for this case which was received at the Commission on November 10,
1997. There were no attached exhibits to the Solicitor's petition.
Commission rule 2700.28(a), 29 C.F.R. § 2700.28(a), requires the Secretary to file a
penalty petition within 45 days of receipt of a contest of a penalty. Filing is effective upon
mailing. 29 C.F.R. § 2700.5(d). The petition in this case should have been filed on October 27,
1997. Therefore, it is 10 days late and the Solicitor must explain why his petition was untimely.
Furthermore, Commission rule 2700.28(b) and (c), 29 C.F.R. § 2700.28(b) and (c),
requires that the petition list the alleged violations and the proposed penalties, identify each
violation by the nW:nber and date of the citation or order and the section of the Act or regulations
alleged to be violated, and that a legible copy of each citation contested be attached. The penalty
petition filed by the Solicitor does not contain this information. Therefore, the petition is
incomplete and the Solicitor must provide the requisite info~ation before this case can proceed.

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This case is one of an increasing number of recent cases where the Secretary's
representatives fail to attach required exhibits to the penalty petitions. These cases involve
both Solicitors and CLRs. The Commission's filing requirements are easily understood
and well known to the Secretary's representatives. However, the Commission's docket
office is spending a great deal of time telephoning the Secretary's representatives to obtain
the necessary documents. It is not the Commission's responsibility to continually remind
the Secretary's representatives to furnish documentation necessary to perfect filing so that
the cases can proceed. Henceforth, show cause orders will be issued in these cases.
In light of the foregoing, it is ORDERED that within 2 1 days the Solicitor show cause
why this case should not be dismissed for untimely filing.
It is further ORDERED that within 21 days the Solicitor file the necessary information
for his penalty petition to fulfi l1 the requirements set forth in the Commission rules or. show
cause why this case should not be dismissed for inadequate filing.

=

Paul Merlin
Chief Administrative Law Judge

Distribution: (Certified Mail)
James E. White, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffm Street,
Suite 501, Dallas, T X 75202
Ed Clair, Esq., Associate Solicitor, Office of the Solicitor, U.S. Department ofLabor, 401 5
Wilson Boulevard, Suite 420, Arlington, VA 22203
Mr. Robert L. Childress, President, Quapaw Company, P . 0 . Box 609, Stillwater, OK 74076

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