SEPTEMBER 1997 ·

CQMMISSIQN DECISIONS
09-02-97
09-05-97
09-15-97
09-25-97
09 - 29-97
09-29-97

Tresca Brothers Sand & Gravel ( Inc .
Thunder Basin Coal Company
Fort Scott Fertilizer/Culler, Inc.
Harlan .Cumberland Coal Company
Sec. Labor on behalf of Richard E .
Glover, et al. v . Consolidation Coal Co.
AMAX Coal Company

YORK 97-17-M
WEST 94-370
CENT 92-334-M
KENT ·94-996

Pg.
Pg.
Pg.
Pg.

LAKE 95-78-D
LAKE 95-267

Pg. 1529
Pg. 1542

WEST 96-272
WEVA 97-11
YORK 97-17-M
YORK 97-25-M
WEST 96-25

Pg.
Pg.
Pg.
Pg .
Pg.

KENT 97-316-D
WEVA 97-84-R
CENT 95-210-M

Pg. 1578
Pg. 1581
Pg. 1588

LAKE 95-201-DM
CENT 92-334-M

Pg. 1590
Pg. 1591

VA
97-9-D
WEST 94-370

Pg. 1598
Pg. 1603

WEVA 94-347-R

Pg. 1607

1491
1.495
1511
1521

ADMINISTRATIVE LAW JUPGE DECISIONS
09-02-97
09-04-97
09-05-97
09-05-97
09-11-97
09-10-97
09-15-97
09-16-97
09-22-97
09-23-97
09-29-97
09-29-97

Basin Resources, Inc.
Hobet Mining, Inc.
Tresca Brothers Sand & Gravel
Tresca Brothers Sand & Gravel
Basin Resources, Inc.
Sec. Labor on behalf of Michael B.rown
v. Boogar Man Mining, Inc., et al.
Consolidation Coal Company
Norton Crushed Stone
Sec. Labor on behalf of James Rieke
v. AKZO Salt Company, Inc.
Fort Scott Fertilizer/Culler, Inc.
Sec. Labor on behalf of Billy Branham
v. Teddy Bear, Inc.
Thunder Basin Coal Company

1555
1557
1561
1563
1565

APMINIST&ATIYE LAW JUPGE ORDERS
09-02 - 97

Laurel Run Mining Company

i

SBPTIMBBR

1997

Review was granted in the following cases during the month of September:
Secretary of Labor, MSHA v . Tresca Brothers Sand & Gravel, Docket Nos.
YORK 97-17-M, YORK 97-25-M .
(Chief Judge Merlin, unpublished Default
Orders of May 19 and June 19, 1997.)
Secretary of Labor, MSHA v. White Oak Mining and Construction Co.,
Docket No. WEST 96-338.
(Judge Feldman, August 13, 1997.)
Secretary of Labor, MSHA v. Wayne R. Steen, employed by Ambrosia Coal
and Construction, Docket No. PENN 94-15.
(Judge Barbour, August 20, 1997.)

There were no cases filed in which review was denied.

ii

COMMISSION DECISIONS AND ORDERS

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

September 2, 1997

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

v.

Docket Nos. YORK 97-17-M
YORK 97-25-M

TRESCA BROTHERS
SAND & GRAVEL, INC.

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners
ORDER
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977,30U.S.C. §801 etseq.(l994). OnMay 19andJune 19, 1997,ChiefAdministrativeLaw
Judge Paul Merlin issued Orders of Default to Tresca Brothers Sand & Gravel, Inc. ("Tresca")
for its failure to answer the Secretary of Labor's petitions for assessment of civil penalty or the
judge's Orders to Respondent to Show Cause. The judge assessed civil penalties of$2854 and
$2290 in the two cases.
On July 1, 1997, the Secretary filed a Motion for Approval of Settlement in each ofthese
cases with the Commission's Office of Administrative Law Judges. Each motion seeks approval
of a settlement involving payment by Tresca of a substantially reduced penalty based upon
attached additional information received from the district office of the Department of Labor's
Mine Safety and Health Administration ("MSHA") indicating that the underlying citations have
been vacated or modified to reduce the proposed penalty. Each motion also states that "approval
of this settlement is in the public interest and will further the intent and purpose of the Federal
Mine Safety and Health Act of 1977." Mot. at 2. Both motions fail to mention the default order
issued in each case.
The judge's jurisdiction over these cases terminated when his default orders were issued
on May 19 and June 19, 1997, respectively. 29 C.F.R. § 2700.69(b) (1995). Relief from a
judge's decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Ifthe Commission does not direct
review within 40 days of a decision's issuance, it becomes a final decision of the Commission.

1491

30 U.S.C. § 823(d)(1). The Secretary's settlement motions were received by the Commission on
July 3 and July 7, 1997, respectively .1
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(I) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R.
§ 2700.l(b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of
applicable Commission rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 781,782 (May 1991).
We are unable to evaluate the merits of the Secretary's position on the basis of the present record.
In the interest of justice, we reopen the proceedings, treat the Secretary's settlement motions as
petitions for discretionary review requesting relief from final Commission decisions, and excuse
the late filing in No. YORK 97-17-M. See, e.g., DCL Constr., Inc., No. WEST 95-189-M,
Unpublished Order at 2 (May 9, 1996); Transit Mixed Concrete Co., 13 FMSHRC 175, 176
(February 1991).

1

The settlement motion in No. YORK 97-17-M was received on July 3, several days
after the default order in that case had become a final decision of the Commission on June 30,
1997. The settlement motion in No. YORK 97-25-M was received on July 7; the default order in
that case became a final order of the Commission on July 29, 1997.

1492

We remand the matter to the judge, who shall determine whether final relief from default
is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

1493

'

Distribution
Ralph R. Minichiello, Esq.
U.S. Department of Labor
Office of the Solicitor
E-375, John F. Kennedy Bldg.
Boston, MA 02203
John Tresca, President
Tresca Brothers San~ & Gravel Incorporated
P.O. Box 189
Millis, MA 02054
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., 6th Floor
Washington, D.C. 200006

1494

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

September 5, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 94-370

v.

THUNDER BASIN COAL COMPANY

BEFORE: Marks, Riley, and Verheggen, Commissioners•

DECISION
BY: Marks and Riley, Commissioners
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 former
Commission Administrative Law Judge Arthur J. Amchan properly applied the penalty
assessment criteria set forth in section 11 O(i) of the Act, 30 U.S.C. § 820(i), in assessing a civil
penalty of $1300 against Thunder Basin Coal Company ("Thunder Basin") for a violation of 30
C.F.R. § 40.4 and its subsequent failure to abate that violation. 17 FMSHRC 2184, 2189
(December 1995) (ALJ). The Commission granted the petition for discretionary review filed by
the Secretary of Labor challenging the judge' s penalty assessment. For the reasons that follow,
we vacate the judge's penalty assessment and remand for reassessment.

1

Chairman Jordan recused herself in this matter and took no part in its consideration.
Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977,30 U.S.C.
§ 823(c), this panel of three Commissioners has been designated to exercise the powers of the
Commission.

1495

I.
Factual and Procedural Background
This case is the culmination of lengthy litigation involving designation of miners'
representatives, pursuant to section 103(f) ofthe Mine Act, 30 U.S.C. § 813(f), and 30 C.F.R.
Part 40,2 at the Black Thunder Mine, a large nonunion coal mine operated by Thunder Basin near
Wright, Wyoming. In September 1990, eight miners at the mine designated two officials of the
United Mine Workers of America (..UMWA") as their section 103(f) representatives. 17
FMSHRC at 2184. Thunder Basin refused to recognize the two UMWA officials as miners'
representatives or to post the notice so designating them, as required by section 40.4,3 on the
grounds that they were not employees and that their designation was motivated primarily by the
desire of some miners to assist the UMW A in its efforts to organize employees at the mine. !d.
at 2184-85. In March 1992, Thunder Basin sought and obtained an injunction from the U.S.
District Court for the District of Wyoming prohibiting the Department of Labor' s Mine Safety
and Health Administration ("MSHA") from enforcing the Part 40 designation of the two UMWA
officials as miners ' representatives. ld. at 2185. On appeal , the U.S. Court of Appeals for the
Tenth Circuit and the Supreme Court both ruled that the district court lacked subject matter
jurisdiction to issue the injunction. ld. ; see also Thunder Basin Coal Co. v. Martin, 969 F.2d 970
(I Oth Cir. 1992), a.ff'd sub nom. Thunder Basin Coal Co. v. Reich, 51 0 U.S. 200 ( 1994). The
Tenth Circuit and the Supreme Court both specifically rejected Thunder Basin' s argument that it
2

Section l03(f) provides:
[A] representative of the operator and a representative authorized
by his miners shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical
inspection of any coal or other mine .. . for the purpose of aiding
such inspection and to participate in pre- or post-inspection
conferences held at the mine.

30 U.S.C. § 813(f). Regulations promulgated pursuant to this section, which establish procedural
and administrative requirements for the designation of a miner representative, are set forth at 30
C.F.R. Part 40.
3

Section 40.4 provides:
A copy of the information provided the operator
[concerning the miners' designation of representative] shall be
posted upon receipt by the operator on the mine bulletin board and
maintained in a current status.

30 C.F.R. § 40.4

1496

would be denied due process if it was forced to risk substantial civil penalties by not complying
with the designation of representatives before the merits of its legal arguments were decided by
the Commission. 969 F.2d at 975-77; 510 U.S. at 216-18.
On January 21, 1994, two days after the Supreme Court issued its decision, James A.
Herickhoff, president of Thunder Basin, wrote a letter to the MSHA district manager in Denver,
Colorado, requesting that MSHA issue a citation to resolve the validity of the designation of
representatives by miners at the Black Thunder mine. 17 FMSHRC at 2185. The letter stated
that Thunder Basin exp~cted MSHA to specify an abatement time "sufficient for the parties to
pursue resolution of this important issue before the Commission and the courts." ld On
February 22, 1994, MSHA issued a citation alleging that Thunder Basin violated section 40.4.
!d. The citation required abatement of the violation within 15 minutes. ld When this period
elapsed without compliance by Thunder Basin, MSHA issued an order pursuant to section 104(b)
of the Mine Act, 30 U.S.C. § 814(b). ld. 4 Later that day, Thunder Basin filed applications for
temporary relief and an expedited hearing with the Commission. !d. at 2186.
On February 28, 1994, MSHA sent a letter to Thunder Basin requesting the company to
abate the section 40.4 violation, and notifying it ofMSHA's intention to begin assessing a daily
penalty if the violation was not abated by March l, 1994. S. Br. to ALJ, Ex. B. On March 11,
1994, MSHA informed Thunder Basin of its intent to assess a daily penalty of $2000 for each
day the operator continued to refuse to post the designation form. 17 FMSHRC at 2186. On
March 25, 1994, Judge Amchan issued an order denying Thunder Basin's application for
temporary relief. !d.; Thunder Basin Coal Co., 16 FMSHRC 1033 (April 1994) (ALJ). Two
days later, on March 27, MSHA informed Thunder Basin that assessment of a $2000 daily
penalty would commence that day. ld. On March 28, Thunder Basin fjled a petition for
discretionary review of the judge's decision. ld. On April 8, the Commission affirmed the
judge's decision to deny the application for temporary relief. Thunder Basin Coal Co., 16
FMSHRC 671 (April 1994). Later that day, Thunder Basin posted the miners' representative
notice. 17 FMSHRC at 2186.
On May 31, 1994, the Secretary filed with the Commission a civil penalty petition in
which it proposed a total penalty of$26,360: $360 for Thunder Basin's initial section 40.4
violation·and a daily penalty of$2000 for its failure to abate the violation during the 13-day
period from March 27 to April 8, 1994. ld. at 2187; Pet. for Assessment of Penalty. Thunder
Basin filed an answer and an unopposed motion to stay the penalty proceeding pending the
outcome of the underlying proceeding involving its contest of the section 40.4 citation and
section 104(b) order, which was granted by Judge Amchan. Answer and Unopposed Mot. for
Stay; Stay of Proceedings dated Aug. 2, 1994.

4

This order did not require Thunder Basin to withdraw miners from any area of the mine
or to cease any of its operations. ld. at 2185-86.

1497

On August 24, 1994, Judge Amchan affirmed the citation issued to Thunder Basin for its
refusal to post the miners' designation of representatives. Thunder Basin Coal Co., 16 FMSHRC
1849 (August 1994) (ALJ). The judge concluded that the disposition of the case was controlled
by the Commission's decision in Kerr-McGee Coal Corp., 15 FMSHRC 352 (March 1993),
a.f{"d, 40 F.3d 1257 (D.C. Cir. 1994), cert. denied, 115 S. Ct. 2611 (1995). 5 16 FMSHRC at
1850. The Commission did not grant Thunder Basin's petition for discretionary review ofthe
judge's decision, which thus became a f1nal order of the Commission. 17 FMSHRC at 2186 n.2.
On appeal, the decision was affirmed by the Tenth Circuit in Thunder Basin Coal Co. v.
FMSHRC, 56 F.3d 1275 (199~). 17 FMSHRC at 2186.
In July 1995, following the Tenth Circuit's decision affirming the Commission's final
order, Judge Amchan set a hearing date in the penalty proceeding. Notice of Hearing dated July
10, 1995. The hearing was continued and later canceled pursuant to a joint motion of the parties
in which they agreed that no material evidentiary facts relating to the penalty assessment were in
dispute and that they would stipulate to the relevant facts concerning four of the six statutory
penalty criteria. Joint Mot. to Govern Further Proceedings. On November 14, 1995, the
Secretary and Thunder Basin submitted stipulations relating to all of the statutory penalty criteria
except negligence and good faith. 17 FMSHRC at 2187; Section 11 O(i) Stips.6
Based upon his evaluation of the penalty assessment criteria set forth in section 110(i) of
the Mine Act, Judge Amchan assessed a daily penalty of $100 for the period from March 27 to
April 8, 1994- a total penalty of$1300. 17 FMSHRC at 2187-89. Noting that the parties had
stipulated with respect to four of the six statutory penalty criteria, the judge determined that the
only criteria at issue were negligence and the good faith of Thunder Basin in achieving
abatement. !d. at 2187. Finding that Thunder Basin's failure to post the miners' representative
notice was intentional, rather than negligent, the judge concluded that the "real question" was its
"good faith.'' !d. He described the dispositive issue as "whether (Thunder Basin) should be

5

In Kerr-McGee, the Commission held that the designation of union employees as
miners' representatives was consistent with section 103(f) of the Mine Act and did not present an
impermissible conflict with the National Labor Relations Act. 15 FMSHRC at 360-62. The
Commission's decision in Kerr-McGee was affirmed by the D.C. Circuit on December 2, 1994
(40 F .3d at 1257), following the judge's decision affirming the underlying citation in this case.
6

The parties stipulated that Thunder Basin had 23 violations of the Mine Act in the two
years preceding this violation, and that it had no prior violations of section 40.4 and no prior
section 11 O(b) penalties assessed against it. 17 FMSHRC at 2187. The parties also stipulated
that Thunder Basin is a large operator, that the proposed penalty of$26,360 would not affect its
ability to continue in business, and that the gravity of the violation was low since the violation
was not "significant and substantial," no persons were likely to be affected, no lost workdays
could be expected, there was no likelihood of recurrence, and the order was marked "no
[a]ffected area." !d.; Section llO(i) Stips. at 1-2.

1498

assessed a substantial civil penalty for its insistence on exhausting all avenues of judicial review
prior to complying with the citation." ld at 2188.
The judge reasoned that the assessment of a penalty in this case required a balancing of
two considerations: (1) Thunder Basin's insistence on getting a "second bite at the apple" in the
adj udication process despite the Commission's controlling decision in Kerr-McGee, and (2) the
very remote possibility of any danger resulting from the failure to abate. ld at 2189. Balancing
these factors, the judge concluded that the $2000 daily penalty proposed by the MSHA was
"much too high given the .l ow gravity of the violation," and that an appropriate penalty was $100
per day for the 13-day period from March 27 to April 8, 1994- a total penalty of $1300. !d.
The Commission granted the Secretary's petition for discretionary review challenging the
judge's penalty assessment.

II.
Disposition
The Secretary argues that the judge erred by failing to assess any civil penalty for the
underlying section 40.4 violation. S. Br. at 7-8; S. Reply Br. at 1-7. The Secretary also argues
that the judge· erred by not properly applying the six statutory penalty criteria in assessing a daily
penalty for Thunder Basin's failure to abate the section 40.4 violation. S. Br. at 8-21.
Specifically, the Secretary contends that the judge failed to properly consider the negligence
criterion in determining &n appropriate daily penalty. ld. at 11-14; S. Reply Br. at 8-9. The
Secretary also contends that the judge failed to properly balance the six statutory penalty criteria,
and erred by giving controlling weight to the gravity criterion. S. Br. at 14-16. The Secretary
contends that the judge's assessment of a daily penalty of $100 for the failure to abate constitutes
an abuse of discretion. /d. at 16-21. The Secretary argues that the nominal penalty assessed by
the j udge will undermine effective enforcement of the Mine Act and the role of the Commission
as arbiter of disputes arising under the Act. I d. at 20-21; S. Reply Br. at 11 -13. The Secretary
also disputes Thunder Basin's argument that its failure to abate the violation was not the result of
a lack of good faith. S. Reply .Br. at 9-11.
Thunder Basin argues that the judge did not fail to assess a penalty for the section 40.4
violation, as alleged by the Secretary, because his decision indicates that the $1300 penalty
assessed was based upon the both the underlying violation and the 13-day period of nonabatement. T.B. Bi:. at 8-9. Thunder Basin also argues that the judge properly considered the
statutory penalty criteria, including negligence, and did not give undue weight to the gravity of
the violation, and that there is no basis for the Secretary's assertion that the judge's penalty
assessment is not supported by substantial evidence. ld. at 9-14. In addition, Thunder Basin
contends that the statutory criteria warrant the imposition of no more than a nominal penalty in
this case, and that there is no deterrent purpose to be served by imposition of a larger penalty,

1499

because it acted reasonably and in good faith to obtain a prompt resolution of the issues relating
to the validity of the miners' designation of representative. Id. at 14-25.
A.

Governing Principles

Section 1IO(a) of the Mine Act, 30 U.S.C. § 820(a), requires the assessment of a civil
penalty for all violations ·of the Mine Act and the mandatory standards and regulations
promulgated thereunder.7 Section 104(b) provides that, if the Secretary finds that a mine
operator has not totally abated a violation within the time set in the citation, and the period of
time set for abatement shalf not be extended, he shall issue an order withdrawing miners from the
affected area. Section 11 O(b), 30 U.S.C. § 820(b), provides for the assessment of a daily civil
penalty of up to $5000 for each day during which the operator fails to correct the violation for
which a citation has been issued. 8
Commission judges are accorded broad discretion in assessing civil penalties under the
Mine Act. Westmoreland Coal Co., 8 FMSHRC 491,492 (April 1986). Such discretion is not
unbounded, however, and must reflect proper consideration of the penalty criteria set forth in
section 11 O(i) of the Act.9 ld (citing Sellersburg Stone Co.. 5 FMSHRC 287, 290-94 (March
~

Section 11 O(a) provides, in part:
The operator of a coal or other mine in which a violation
occurs of a mandatory health or safety standard or who violates
any other provision of this [Act], shall be assessed a civil penalty
by the Secretary which penalty shall not be more than $50,000 for
each such violation.

30 U.S.C. § 820(a).
8

Section 1 1O(b) provides:
Any operator who fails to correct a violation for which a
citation has been issued under section [104(a)] within the period
permitted for its correction may be assessed a civil penalty of not
more than $5,000 for each day during which such failure or
violation continues.

30 u.s.c. § 820(b).
9

Section 110(i) sets forth six criteria to be considered in the assessment of penalties
under the Act:
[1] the operator's history of previous violations, [2] the

1500

1983), aff'd, 736 F.2d 1147 (7th Cir. 1984)). In reviewing a judge's penalty assessment, the
Commission must determine whether the judge's findings with regard to the penalty criteria are
supported by substantial evidence. 10 Assessments "lacking record support, infected by plain
error, or otherwise constituting an abuse of discretion are not immune from reversal." 11 US.
Steel C01p., 6 FMSHRC 1423, 1432 (June 1984). The judge must make "[f]indings of fact on
each ofthe criteria· (that) not only provide the operator with the required notice as to the basis
upon which it is being assessed a particular penalty, but also provide the Commission and the
courts ... with the necessary foundation upon which to base a determination as to whether the
penalties assessed by the judge are appropriate, excessive, or insufficient." Sellersburg, 5
FMSHRC at 292-93 . .
B.

Assessment of a Penalty for the Underlying Section 40.4 Violation

The Mine Act contains separate provisions authorizing the assessment of civil penalties
for violations of the Act and mandatory health or safety standards. and for the failure to timely
abate such violations, with different specified maximum penalties for each. While the judge
acknowledged that the Secretary proposed the assessment of separate penalties of $360 for the
underlying section 40.4 violation and $26,000 for the failure to abate that violation ($2000 daily
penalty for a period of 13 days), in making his penalty assessment he focused on the failure to
abate and never explicitly addressed the issue of an appropriate penalty for the violation itself.
17 FMSHRC at 2187-89. The judge analyzed the statutory penalty criteria primarily with respect

appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, (4] the
effect on the operator' s ability to continue in business, [5)-the
gravity of the violation, and [6) the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of the violation.
30 u.s.c. § 820(i).
10

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "such relevant evidence as a reasonable
mind might accept as adequate to support (the judge's] conclusion." Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159,2163 (November 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
11

The Commission has explained that '"[t]he determination ofthe amount of the penalty
that should be assessed for a particular violation is an exercise of discretion by the trier of fact.
This discretion is bounded by proper consideration of the statutory criteria and the deterrent
purpose underlying the Act's penalty assessment scheme."' Broken Hill Mining Co., 19
FMSHRC 673,676 (April1997) (quoting Sellersburg, 5 FMSHRC at 294 (citation omitted)).

1501

to facts surrounding the failure to abate, and did not separately discuss facts relating to the
section 40.4 violation. Id. Given the mandatory language of section 11 O(a)- providing that an
operator found to have violated the Act or a mandatory health or safety standard "shall be
assessed a civil penalty" (30 U.S.C. § 820(a) (emphasis added))- the judge's failure to assess
any penalty for the section 40.4 violation an1ounts to legal error that necessitates a remand.
While Thunder Basin contends that the $1300 penalty was intended by the judge to apply
to both the section 40.4 violation and the subsequent failure to abate, there is no indication in the
judge' s decision that this was in fact his intention. 12 Although, as the Secretary concedes (S.
Reply Br. at 7 n.3) , it would not be improper for the judge to assess one total penalty for both the
violation and the failure to abate, the judge must at least indicate that this is his intention and
provide some analysis of the statutory penalty criteria with reference to the violation. Because
the judge failed to do either, we remand the case for assessment of a separate penalty for the
section 40.4 violation.
C.

The Application of Section 11 O(i) Penalty Criteria

We also conclude that the judge abused his discretion in analyzing the statutory penalty
criteria with respect to Thunder Basin's failure to abate the section 40.4 violation, and therefore
vacate his penalty assessment and remand for reassessment."
First, it does not appear that the judge actually considered all of the statutory criteria in
determining an appropriate penalty for Thunder Basin's failure to abate. While the parties
stipulated as to the facts with respect to four of the six statutory penalty criteria, the judge
appears to have totally disregarded three of these four factors (other than gravity) in assessing a
penalty. At least two of the these three factors- size and ability to continue in businessweigh against a significant reduction in the penalty assessed for Thunder Basin's failure to abate.

12

Thunder Basin's suggestion-(T.B. Br. at 9, 11, 22-23) that the $1300 penalty assessed
by the judge reflects a quadrupling of the $360 penalty proposed by the Secretary for the section
40.4 violation finds no support in the judge's decision, and is inconsistent with the analysis
employed by the judge in determining an appropriate penalty in this case. It is apparent from the
judge's decision that the $1300 total penalty was based on assessment of a reduced daily penalty
of$100 for the 13 days from March 27 to April 8, 1997. 17 FMSHRC at 2189. The judge does
not even mention the $360 penalty proposed for the section 40.4 violation in the penalty
assessment section of his decision. I d. at 2187-89.
13

Commissioner Riley notes his dissenting colleague's observation that, "we have
allowed penalty assessments to stand that were supported by far less analysis." Slip. op. at 14
(citing Sunny Ridge Coal Co., 19 FMSHRC 254 (February 1997)). Having dissented in that case
on the very issue for which it is cited (19 FMSHRC at 276-78), Commissioner Riley is confident
that the Commission's disposition of the instant case is consistent with his position in Sunny
Ridge.

1502

While there is no requirement that equal weight must be assigned to each of the penalty
assessment criteria, it is well established that all six statutory criteria must at least be considered
in assessing civil penalties and that a judge's failure to do so constitutes reversible error. See
Wallace Bros., Inc., 18 FMSHRC 481, 483 (April 1996), and cases cited; Mettiki Coal Corp., 13
FMSHRC 760, 773 (May 1991). See also Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147,
1151 (7th Cir. 1984). In Jim Walter Resources, Inc., 19 FMSHRC 498 (March 1997), the
Commission vacated a judge's penalty assessment where the judge failed to "make specific
tindings on all six penalty criteria," including criteria that were the subject of stipulations by the
parties. /d. at 501.
The judge's analysis of the negligence criterion also represents an abuse of discretion.
The judge's only mention of this criterion- one of two statutory criteria that the_parties did not
stipulate to- was his observation that Thunder Basin's failure to post the notice of
representative was intentional rather than negligent. 17 FMSHRC at 2187. It appears that the
judge concluded that, because the relevant conduct of Thunder Basin was intentional, the
negligence criterion was essentially inapplicable. While an intentional violation will not always
be found to be indicative of high negligence, 14 the Commission has held that some types of
intentional conduct warrant a finding of high negligence. See Consolidation Coal Co., 14
FMSHRC 956,961, 970 (June 1992) (affirming judge's finding of high negligence where
operator intentionally ch~nged its method of reporting hours worked by miners, thereby taking
"the law into its own hands by deciding for itself what the law means and how it can best be
applied"). Indeed, "intentional misconduct" is one of the standard phrases used by the
Commission to describe an unwarrantable failure. See Rochester & Piffsburgh Coal Co., 13
FMSHRC 189, 193-94 (February 1991 ); S & If Mining, Inc., 17 FMSHRC 1918, 1922-23
(November 1995). The judge's failure to provide any meaningful analysis of the negligence
criterion, or to factor that criterion into his penalty assessment for Thunder Basin's failure to
abate, constitutes reversible error. 15
With respect to gravity, it has been recognized that allowing non-employees to serve as
miners' representatives is consistent with Congress' underlying objectives of improving miner
health and mine safety, since third parties may provide valuable safety and health expertise, use
their knowledge of other mines to spot problems and suggest solutions, and take actions without
the threat of pressure from the employer. Kerr-McGee Coal Corp. v. FMSHRC, 40 F.3d 1257,
See, e.g., Mettiki, q FMSHRC at 770-71; Midwest Minerals, Inc., 12 FMSHRC 1375,
1379 (July 1990).
14

15

Thunder Basin asserts that an intentional violation does not merit a finding of high
negligence when the operator's conduct "was based ... on its erroneous legal interpretation of
the Secretary's authority," relying on US. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). T.B.
Br. at 9 n.8. This reliance is misplaced, however, since in US. Steel there was no prior
Commission decision comparable to the controlling Kerr-McGee decision in this case addressing
the precise legal issue in dispute.

1503

1263 (D.C. Cir. 1994), cert. denied, 115 S. Ct. 2611 (1995) (citing Utah Power & Light Co. v.
Secretary of Labor, 897 F.2d 447,451-52 (lOth Cir. 1990)). It follows that, as a result of
Thunder Basin's refusal to honor the miners' designation of their section I 03(f) representatives,
the miners were deprived of the full measure of protection because their selected representatives
were unable to point out safety and health hazards that the miners themselves might not have
recognized or been willing to report. Therefore, Thunder Basin's failure to abate the section 40.4
violation could have compromised the safety of miners. However, since the Secretary stipulated
that there is no likelihooq of injury due to Thunder Basin' s violation (17 FMSHRC at 2187), the
Commission is precluded from applying its own analysis to the question of gravity.
D.

The Daily Penalty Assessment

Finally, it appears from the judge' s decision that, in reducing the daily penalty assessed
for Thunder Basin's failure to abate to $100 from the $2000 amount proposed, a 95% reduction,
he gave controlling weigh~ to the low gravity of the violation and may not have adequately
considered other factors that cut against a reduction in the proposed penalty - in particular,
Thunder Basin's lack of good faith in failing to abate the violation. Despite identifying Thunder
Basin's good faith as the ..real question" in assessing a penalty, finding that MSHA reasonably
refused to extend the abatement period, and concluding that Thunder Basin acted unreasonably in
relying on assurances that it would not be subject to daily penalties if it chose to litigate rather
than abate (taken from decisions that predated the Commission's controlling decision in KerrMcGee), the judge appears to have assigned little weight to this lack of good faith in determining
an appropriate penalty for the failure to abate. 17 FMSHRC at 2187-89. See Jim Walter
Resources, 19 FMSHRC at 501 (vacating penalty assessment where judge "did not indicate how
or whether [his) findings and conclusions [regarding operator' s good faith attempts to achieve
compliance) relate to his penalty assessment" ). Given the "wide divergence between the
penalties proposed by the Secretary and those assessed by the judge,'' which amounted to a 95%
reduction in the proposed penalty, the judge was, at a minimum, required " to provide a sufficient
explanation of the bases underlying the penalties assessed." Sellersburg, 5 FMSHRC at 293 .
We also note that the Secretary demonstrated considerable restraint and forbearance in
assessing a penalty for Thunder Basin' s failure to abate the violation. The Secretary was.
statutorily authorized to seek a daily civil penalty of up to $5000 per day for the failure to abate,
and could have sought daily penalties for a far longer period oftime, beginning on February 22,
1994 - the day the section I 04(b) order issued. Instead, the Secretary gave Thunder Basin
several opportunities to abate the violation and waited until March 27, several days after the
judge denied the operator's motion for temporary relief, to begin imposition of a daily penalty of
$2000- only 40% of the authorized maximum daily penalty. 17 FMSHRC at 2186. Given the
significant restraint demonstrated by the Secretary in assessing a penalty for Thunder Basin's
failure to abate the section 40.4 violation, in the face of controlling Commission precedent, for a
month-and-a-half after the issuance of a section 104(b) order, the judge's further reduction of that
proposed penalty by a factor of 95% constitutes an abuse of discretion.

1504

For a company with the size and resources of Thunder Basin, a daily penalty of $100,
even multiplied over 13 days to yield a total penalty of $1300, is likely to have little financial
impact, and therefore minimal deterrent effect. If so, then the penalty assessed for Thunder
Basin's failure to abate would not achieve the intended purpose of civil penalties under the Mine
Act, which is to "'convinc[e] operators to comply with the Act's requirements."' Ambrosia Coal
& Constr. Co., 18 FMSHRC 1552, 1565 n.l7 (September 1996) (quoting S. Rep. No. 181, 95th
Cong., 1st Sess. 45 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal Mine Safety and Health Act
of 1977, at 633 (1978)). It has been recognized that "stiffer penalties against larger mines are
necessary, at least in part, to ensure that operators of mines with more complex management
structures would notice and correct violations." Coal Employment Project v. Dole, 889 F.2d
1127, 1135 (D.C. Cir. 1989). Moreover, section IIO(b) ofthe Act, which authorizes the
Commission to assess a penalty of up to $5000 a day for each day that a violation continues,
demonstrates Congress' emphasis on the need for significant penalties in response to operator
recalcitrance in situations where, as here, the violation is not abated in a timely manner.
A civil penalty of the magnitude assessed by the judge in this case is likely to discourage
operators, particularly large companies with extensive financial resources, from abating
violations while they litigate their validity - a result that, as the judge acknowledged, is contrary
to the enforcement scheme embodied in the Mine Act. 17 FMSHRC at 2188-89. Significantly,
in the Kerr-McGee case, which first raised the issue of the validity of a designation of union
employees as miners' section 103(f) representatives, the operator abated its section 40.4 violation
in response to the threatened imposition of daily penalties before proceeding to litigate the matter
before the Commission and the D.C. Circuit, even though that issue was then an unsettled
question of first impression. 15 FMSHRC at 355. In this case, by contrast, Thunder Basin, a
large operator represented by able counsel, made a conscious decision not to abate its section
40.4 violation and to continue litigating the validity of the citation notwithstanding contrary
Commission case law. It must therefore be prepared to bear the consequences of that decision.
Civil disobedience is an honorable tradition in American jurisprudence. However, it is
not undertaken without risk by those who believe they are making a principled stand. Many civil
rights protestors, with a far greater claim of injustice, fully expected legal sanction for their civil
defiance. Only when their suffering awakened public consciousness did their civil disobedience
begin to achieve the goal of changing the law.
Here we have a corporate actor engaging in a legal stand-off with a governmental agency
over what it believes is a matter of principle. Certainly Thunder Basin, or any other litigant,
should not be exposed to greater punishment for forcefully exercising due process rights.
However, no party is, or should be, automatically entitled to a discount from a lawful penalty of
the magnitude applied here merely because they invoke the righteous mantle of civil protest.
This is especially true where the amount of a daily sanction for noncompliance is known and its
potential accumulation is entirely in the hands of the protesting party.

1505

In our view, these deficiencies in the judge's penalty assessment .a mount to an abuse of
discretion. Accordingly, we vacate the judge's assessment and remand for reassessment of a
penalty consistent with this decision.

III.
Conclusion
For the foregoing reasons, we vacate the judge's penalty assessment and remand to the
Chief Administrative Law Judge for reassignment and reassessment of civil penalties. 16

I
•
Marc Lincoln Marks, Commissioner

16

Judge Amchan has since transferred to another agency.

1506

Commissioner Verheggen, dissenting:
I join in my colleagues' decision with the exception of Sections. II.C ~d II.D, from which
I dissent. In those sections, my colleagues find an abuse of discretion where I find none.
The principles governing the Commission's de novo authority to assess civil penalties for
violations of the Mine Act are well established. First, "findings of fact on the [six] statutory
penalty criteria must be made." Sellersburg Stone Co., 5 FMSHRC 287, 292 (March 1983 ),
af(d, 736 F.2d 1147 (7th Cir: 1984). Findings on each of the criteria may be made either by the
judge or can be entered by the Commission based on record evidence. See Sellersburg, 736 F .2d
at 1153. When reviewing a judge's factual findings on the six penalty criteria, we apply the
substantial evidence test. 30 U.S.C. § 823(d)(2). Having made findings on the criteria, a judge's
penalty assessment for a particular violation is an exercise of discretion, which is bounded by
proper consideration of the statutory criteria and the de~errent purposes underlying the Act's
penalty assessment scheme. Sellersburg,. 5 fMSH_RC. ~t 294. But see Jim Walter Resources,
Inc. , 19 FMSHRC 498, 50 I (March 1997) ("Deterrence is not a separate component used to
adjust a penalty amount after the statutory criteria have been considered.") (citation omitted).
We review a judge's penalty assessment under an abuse of discretion standard. U.S. Steel Corp.,
6 FMSHRC 1423, 1432 (June 1984); Westmoreland Coal Co., 8 FMSHRC 491 , 492 (April
1986) (the Commission's judges are accorded broad discretion in assessing civil penalties under
the Mine Act).
Here, the parties stipulated the facts as to four of the six criteria, stipulations which the
judge duly noted in discussing his penalty assessment. 17 FMSHRC at 2187.1 The judge was
thus required to:make findings on only t\\.·o criteria: the degree to which Thunder Basin was
negligent, and the company's demonstrate~ good faith in "attempting to achieve rapid
compliance after notification of a violation." 30 U.S.C. § 820(i). The judge essentially found
that Thunder Basin was not negligent at all. Although I believe that this finding is not clearly
articulated, it nevertheless is supported by substantial evidence. The Secretary herself defines
negligence in terms of the risk of harm arising out of a particular course of conduct. 30 C.F .R.
§ 100.3(d). Here, the Secretary stipulated that there was no likelihood of injury due to Thunder
Basin's violation. 17 FMSHRC at 2187. It is hard to imagine any more convincing evidence in
support of the judge's conclusion. By couching his finding in terms of Thunder Basin acting
"intentionally" (id.), the judge confused the issue. Insofar as his finding is unclear, however, I
would have the Commission enter its own finding of no negligence based on the compelling
evidence cited above. See Sellersburg, 736 F.2d at 1153.

1

The Commission has been reluctant to discount stipulations on the penalty criteria
entered by litigants. In Mettiki Coal Corp., 13 FMSHRC 760,772 (May 1991), although the
judge made an implicit finding of no good faith abatement, in vacating the judge's penalty
assessment the Commission found that Me~iki abated the two violations at iss'l:le "in good faith,"
after noting that evidence supported the parties' stipulation to this effect.

1507

The judge also found that the company's failure to abate the ~i olation was unreasonable
in light of a Commission decision, Kerr-McGee Coal Corp., 15 FMSHRC 352 (March 1993),
a.ff'd, 40 F.3d 1257 (D.C. Cir. 1994), cert. denied, 115 S. Ct. 2611 (1995), that arguably
controlled the outcome of this case. This finding is amply supported by the relevant evidence,
which is simply the timeline of this case, recited by the judge in some detail. 17 FMSHRC at
2185 -86.
The only question remaining is whether the judge abused his discretion when assessing
the daily penalty for Thunder Basin's continuing violation of 30 C.F.R. § 40.4. I differ from my
colleagues and conclude that he did not.
After making the requisite findings, including noting the patties' stipulations, the judge
discussed the factors that most affected hi s assessment: the gravity of the violation and Thunder
Basin's abatement effort~ . My colleagues are unable to cite a single instance where we have
directed one of our judges to go beyond what the judge did here. In fact, we have allowed
penalty assessments to stand that were supported by far less analysis. In Sunny Ridge Coal Co.,
19 FMSHRC 254 (February 1997), the judge made no separate findings of fact on any of the
penalty criteria with respect to three highwall vio lations. /d. at 262-64, 265-66, 268. A majority
of Commissioners nevertheless culled both the judge's decision and the record and found facts
on which findings could be entered. Jd. After all the findings were in, the majority stated:
The question remains whether, in light of the ... findings,
the penalty assessed by the judge is excessive. The determination
of the amount of the penalty that should be assessed for a particular
violation is an exercise of discretion by the trier of fact, discretion
bounded by proper consideration of the statutory criteria and the
deterrent purposes underlying the Act's penalty assessment
scheme. Sellersburg Stone Co., 5 FMSHRC 287, 294 (March
1983), a.ff'd, 736 F.2d 1147 (7th Cir. 1984). Although the penalty
assessed by the judge exceeds that originally proposed by the
Secretary before the hearing, based on the facts developed in the
adjudicative record, we cannot say that the penalty is inconsistent
with the statutory criteria or the Act's deterrent purposes. We thus
find that the judge's penalty assessment did not constitute an abuse
of discretion.

!d. at 263-64 (emphasis added, footnotes omitted).
The judge's penalty in Sunny Ridge was affirmed despite the fact that neither the judge
nor the Commission discussed the interrelation between the factual findings on the criteria and
the penalties assessed. Here, too, it is impossible to say that Judge Arnchan's penalty assessment
is inconsistent with the statutory criteria or the Act's deterrent purposes. Certainly, he did not
abuse his discretion. If anything, his assessment improves upon the Secretary's penalty proposal

1508

of $360 for the underlying violation and $2,000 per day for ~ 3 days for the continuing violation.
17 FMSHRC at 2187. There is no apparent rational relationship between the Secretary's nominal
proposed penalty for the underlying violation and the much higher proposed daily penalty, which
the judge rejected as "much too high given the low gravity of the violation." Id. at 2189. In light
of the findings on each of the criteria, the only consideration that would have justified a daily
penalty significantly higher than the underlying penalty was Thunder Basin's failure to abate the
violation in light of the Kerr-McGee decision, which the judge found to be unreasonable. 2 This
is exactly one of the grounds on which the judge imposed a more than nominal daily penalty. /d.
I would thus affirm the judge's assessment of a daily penalty of$1 00 per day for 13 days.

2

In light of the six statutory penalty criteria of section 11 O(i), I fail to see the relevance
of what my colleagues characterize as the "considerable restraint and forbearance [demonstrated
by the Secretary] in assessing [the daily] penalty." Slip op. at 10. The manner in which the
Secretary exercises her prosecutorial discretion is not a factor the judge could have considered
under section 11 O(i).

1509

Distribution

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Thomas F. Linn, Esq.
Atlantic Richfield Company
555 Seventeenth Street, 20'h Floor
Denver, CO 80202
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1510

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

September 15, 1997

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

Docket No. CENT 92-334-M

FORT SCOTT FERTILIZER- CULLOR,
INCORPORATED
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. CENT93-117-M

JAMES CULLOR, employed by
FORT SCOTT FERTILIZER- CULLOR,
INCORPORATED
BEFORE: Jordan, Chairman; Marks, Riley and Verheggen, Commissioners
DECISION
BY THE COMMISSION:
These civil penalty proceedings, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"}, are before the Commission for a
second time. They involve Administrative Law Judge Jerold Feldman's decision on remand that
significant and substantial ("S&S") violations of30 C.F.R. § 56.14101 1 for defects in the brakes
on two haulage trucks were not the result of unwarrantable failure by Fort Scott FertilizerCullor, Inc. ("Fort Scott") and that an agent ofFort Scott was not personally liable under section

1

Section 56.14101 provides, in part:
(a) Minimum requirements. (1) Self-propelled mobile
equipment shall be equipped with a service brake system capable
of stopping and holding the equipment with its typical load on the
maximum grade it travels.

1511

110(c) of the Mine Act, 30 U.S.C. § 820(c), because the defective brakes were caused by
employee misconduct. 17 FMSHRC 1330 (August 1995) (ALJ). The Commission granted the
Secretary of Labor's petition for discretionary review challenging these determinations and the
judge's assessment of civil penalties. For the reasons that follow, we affirm in part, vacate in
part, and remand.
I.
Factual and Procedural Back2round
On May 22, 1992, William Burris and Timothy Ragland, two truck drivers at Fort Scott's
limestone quarry in ElDorado, Missouri, telephoned a District Office of the Department of
Labor's Mine Safety and Health Administration ("MSHA") and, asserting that the brakes on a
30·ton haulage truck (the "big Euclid") and a 15-ton haulage truck (the "small Euclid") were
defective, requested an inspection. 17 FMSHRC at 1331, 1333; Tr. 96, 165. On May 27, they
informed James Cullor, a Fort Scott supervisor, that the brakes on their trucks were inoperable.
17 FMSHRC at 1333. He instructed them to park the trucks, which were then in use, so that the
brakes could be checked. !d. MSHA Inspector Michael Marler arrived shortly thereafter. ld.
The brakes were tested and found to be defective. 17 FMSHRC at 1333·34. Inspector
Marler issued a citation for the big Euclid, pursuant to section 104(d)( 1) of the Mine Act,
30 U.S.C. § 814(d)(1), and a section 104(d)(1) withdrawal order for the small Euclid, alleging
violations of section 56.1410 I. !d.; Exs. P-2 & P-4. The inspector designated the alleged
violations as S&S and the result of Fort Scott's unwarrantable failure to comply with the cited
standard. Exs. P-2 & P-4. After repairs were made to the trucks, the citation and withdrawal
order were terminated. !d. Subsequently, the Secretary filed a civil penalty petition against
Cullor, charging him with knowingly authorizing, ordering, or carrying out the violations. 17
FMSHRC at 1330-31 _2
In his initial decision, the judge found, in essence, that the drivers were disgruntled
employees who had caused the violative conditions by tampering with, i.e., loosening, the slack
adjusters on the trucks' brakes. 15 FMSHRC 2354 (November 1993) (ALJ). The judge
concluded that deliberate employee misconduct is a defense to liability under the Mine Act and,
on that basis, dismissed the penalty proceedings against both Fort Scott and Cullor. !d. at 236263.

2

In June 1992, Burris and Ragland were terminated by Fort Scott. 17 FMSHRC at 1334.
Failure to wear steel-toed boots was given as the reason. !d. Both filed discrimination
complaints with MSHA against Fort Scott pursuant to section 105(c)(2) ofthe Mine Act, 30
U.S.C. § 815(c)(2). !d. MSHA subsequently determined that Fort Scott had not discriminated
against the complainants in violation of the Act. !d.

1512

The Commission reversed the judge's conclusion that deliberate employee misconduct is
a defense to operator liability for Mine Act violations. 17 FMSHRC 1112, 1115 (July 1995)
("Fort Scott f'). Because he relied, in part, on impermissible considerations, i.e., the drivers'
complaint to MSHA regarding the truck brakes, the Secretary's failure to prosecute their
discrimination complaints, and the Secretary's refusal to produce the investigatory report related
to those complaints, the Commission also vacated his finding that such misconduct had occurred.
Jd at 1116-18. The case was remanded for further analysis of the employee misconduct issue
insofar as it was relevant to the determination of unwarrantable failure, negligence, and Cullor's
liability, if any, under section 11 0(c). I d. at 1115-19. The Commission also instructed the judge
to evaluate evidence that the drivers had made previous complaints about brake problems and
that their complaints had been ignored. !d. at 1118. The Commission directed the judge to
determine whether the violations were S&S and caused by Fort Scott's unwarrantable failure, to
assess penalties against Fort Scott based on the six penalty criteria set forth in section 11 O(i) of
the Mine Act, 30 U.S.C. § 820(i), and to determine whether Cullor was personally liable. ld.
In his decision on remand, the judge reaffirmed his conclusion that the drivers had caused
the defective condition of the brakes by tampering with the slack adjusters. 17 FMSHRC at
1335, 1337-38. With regard to the Commission's instruction that he evaluate evidence that the
drivers had made previous complaints about brake problems and that their complaints had been
ignored, the judge found the drivers' allegations "self-serving and refuted by [Fort Scott's
mechanic] who denied ever receiving pertinent complaints." ld. at 1338. He further found the
legitimacy of such complaints undermined by Burris' testimony that the big Euclid's brakes held
on May 25, which was 3 days after Ragland had complained to MSHA about the brakes. ld. The
judge determined that the violations were S&S because the inoperable truck brakes posed a
substantial likelihood that serious or fatal injuries would occur. /d. at 1336. Based on his
finding of employee misconduct, the judge determined that the violations were not caused by
Fort Scott's unwarrantable failure and that Cullor was not personally liable. ld. at 1339. Noting
that the employee misconduct mitigated the degree of Fort Scott's negligence, he assessed civil
penalties of $10 for each of the two violations. !d. at 1340.

II.
Disposition
The Secretary argues that substantial evidence does not support the judge's finding that
loose slack adjusters were the primary cause of the inoperable truck brakes and that the loose
slack adjusters resulted from employee misconduct. PDR at 15-28. 3 In this regard, the Secretary
asserts that the judge again erred in relying on the fact that one of the drivers contacted MSHA
regarding the truck brakes and in drawing a negative inference from the Secretary's decision not
to present testimony from the MSHA inspector who investigated the two drivers' discrimination
3

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

1513

complaints. !d. at 8-15. Finally, the Secretary argues that the judge erred in failing to consider
all six statutory criteria for penalty assessment and in according dispositive weight to the
negligence criterion. !d. at 28-30. She requests that the judge's decision be reversed. !d. at 28,
31.
Fort Scott, a prose operator, responded to the Secretary's petition in the form of a letter,
stating that "although [it] did not agree with everything in (the judge's initial] ruling, [it] felt he
was trying to be fair and'had a pretty good understanding ... of what really happened." F. S.
Letter dated December 15, 1995, at 2. Fort Scott asserts that it has paid the civil penalties with a
check marked "Final," the check was accepted for payment, and it feels that its obligation has
been fulfilled. ld.
A.

Scope of Review

In her petition for discretionary review, the Secretary focuses on the judge's fmding of
employee misconduct, without relating how that finding affects the judge's ultimate conclusions
regarding unwarrantable failure, negligence, and section 110(c) liability. See PDR at 8-30.
Nevertheless, she requests that the Commission "reverse the judge's decision." !d. at 31.
Section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(iii), and Commission
Procedural Rule 70(f), 29 C.F.R. § 2700.70(f), provide that Commission review is limited to the
questions raised in a granted petition for discretionary review. E.g., Chaney Creek Coal Corp. v.
FMSHRC, 866 F.2d 1424, 1429 (D.C. Cir. 1989). We construe the Secretary's petition to
implicitly request reversal of the judge's unwarrantable failure, negligence, and section 11 O(c)
conclusions. 4
B.

Unwarrantable Failure

The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a
violation. In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. !d. at 2001. Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care." !d.
at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991); see also
Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's
unwarrantable failure test). In cases involving brake failure, the Commission has looked to the
operator's abatement efforts in determining whether the violation was the result of unwarrantable
failure. E.g., Ambrosia Coal & Construction Co., 18 FMSHRC 1552, 1562 (September 1996)
(affirming unwarrantable failure fmding where, although employee-agent had been informed
about bad condition ofhighlift's brakes, he failed to remove it from service or ensure that brakes
4

We urge the Secretary to make her pleadings explicit, particularly when a prose litigant
and section 11 0(c) liability are involved.

1514

were repaired); Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (August 1994)
(affirming unwarrantable failure finding where two foremen were aware of shuttle car's serious
brake problem and failed to follow up appropriately by remedying it).
The judge's finding of employee misconduct is not dispositive of the unwarrantable
failure issue because, irrespective of the cause of the defective brakes, Fort Scott was responsible
for abating the dangerous condition upon becoming aware of it. See Cyprus Plateau, 16
FMSHRC at 1608. Inspector Marler designated the violations as unwarrantable failure based on
his belief that Fort Scott had been informed of the brake problems early on the morning of May
27 but that it failed to remove the trucks from service before hauling more loads that day. Tr.
203-04; Exs. P-2 & P-4. Therefore, we focus on Fort Scott's actions after it became aware of the
defective condition of the brakes on May 27.
The judge found that the drivers' May 27 brake complaints had not been "communicated"
to Cullor. 17 FMSHRC at 1338. In our view, this finding refers to the drivers' alleged
complaints to Cullor early on the morning of May 27, before the quarry's highloader broke down.
In addition, the judge found that Inspector Marler's assertion that Cullor ignored the May 27
complaints was "inconsistent with the evidence that the trucks were parked by the work shed and
not in service (although not tagged out) when [he] arrived." Jd.; see also id. at 1333, 15
FMSHRC at 2358-59.
The record contains conflicting testimony regarding the events of May 27. Burris
testified that he had told Cullor early that morning that the big Euclid did not have any brakes
and that Cullor "seemed unbothered by it." Tr. 78-79; see also Tr. 80-81, 96-97. He stated that
he continued driving the truck until the highloader broke down, at which time he parked it. Tr.
79-80, 97. However, Burris also testified that, immediately before he parked the truck, he had
complained to Cullor that "it wouldn't stop·on level ground" and that Cullor told him to "park
it." Tr. 103. Burris acknowledged that Cullor did not have a chance to examine the truck before
the inspector arrived. Tr. 103. Ragland also testified that he had told Cullor early that morning
that the small Euclid had bad brakes due to a leaking foot valve and that Cull or told him to "[r]un
it." Tr. 143-45. He stated that he continued driving the truck until just before the inspector
arrived, at which time it was parked at the shed. Tr. 145-46, 151. He asserted, however, that the
truck had not been parked for repairs. Tr. 151. In addition, Inspector Marler testified that, when
he arrived at the quarry, the trucks were parked by the shed but they had not been not tagged out
and no repair work was being performed. Tr. 182-83. He asserted that Cullor had told him that
the trucks were parked due to repair work on the highloader and that the trucks were ready to be
placed into service as soon as the highloader was repaired. Tr. 183, 191,275. According to
Marler, Burris had told Cullor early that morning about the bad brakes on the big Euclid and
Cullor told him "to keep driving it and not to complain so much about the equipment." Tr. 186.
Marler testified that Cullor admitted that he had been told about the bad brakes but that "the
driver was a liar and complained too much and was very unreliable. So he didn't put much faith
in what he told him." Tr. 190-91; see also Tr. 203. 220.

151.5

On the other hand, Cull or testified that Ragland told him early that morning that the small
Euclid might have a leaking foot valve.but that it would not cause brake failure. Tr. 286-87.
According to Cullor, however, after the highloader broke down, Ragland told him that the brakes
were not working and Cullor told Ragland to park the truck so the brakes could be examined. Tr.
286-87, 292. Cull or testified that he did not know about the brake problems until after the
.
highloader broke down, when Burris said that the big Euclid would not stop on level ground and
Ragland said that the foot valve was leaking on the small Euclid. Tr. 289-92, 297, 329-30,331.
He stated that he had told both drivers to park the trucks so the brakes could be examined. Tr.
291-92, 312, 329-30, 330-31. Cullor denied telling Burris and Ragland to continue driving the
trucks following their complaints. Tr. 311-12,327,331,346. Cullor testified that he told
Inspector Marler that the trucks were parked for repairs and that they had not been tagged out
because they had not been parked for very long. Tr. 293-94, 315.
We conclude that the judge implicitly credited Culler's testimony that he did not know
about the brake problems until after the highloader broke down and that he responded by
directing both drivers to park the trucks so the brakes could be examined. See 17 FMSHRC at
1333, 1338. A judge's credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (September
1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (December 1981 ). The Commission has
recognized that, because the judge has an opportunity to hear the testimony and view the
witnesses, he is ordinarily in the best position to make a credibility determination. In re:
Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (November
1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713,719 (11th Cir. 1984)). Here, we conclude that
the Secretary has failed to offer compelling reasons to take the "extraordinary step" of reversing
the judge's credibility determination. See Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629
(November 1986).
In light of the conflicting testimony presented by the witnesses, we conclude that the
judge was within his discretion in crediting Cullor. Based on the judge's credibility
determination, we conclude that substantial evidence supports his conclusion that Fort Scott
effectively abated the dangerous condition upon becoming aware of it.5 Accordingly, we affirm
his determination that the violations were not the result of Fort Scott's unwarrantable failure. 6

5

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159,2163 (November 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197,229 (1938)).
6

Given our conclusions regarding the events of May 27, we do not need to reach the
Secretary's argument that substantial evidence does not support the judge's determination that
the violations were caused by employee misconduct. Regardless of the cause of the defective

1516

C.

Section 11 O(c) Liability

Section 11 0(c) of the Mine Act provides that, whenever a corporate operator violates a
mandatory safety or health standard, an agent of the corporate· operator who knowingly
authorized, ordered, or carried out such violation shall be subject to an·individual civil penalty.
30 U.S.C. § 820(c). The proper legal inquiry for determining liability under section 110(c) is
whether the corporate agent knew or had reason to know of a violative condition. Kenny
Richardson, 3 FMSHRC 8, 16 (January 1981), aff'd on other grounds, 689 F.2d 632 (6th Cir.
1982), cert. denied, 461 U.S. 928 (1983). Accord Freeman United Coal Mining Co. v.
FMSHRC, 108 F.3d 358,362-64 (D.C. Cir. 1997). To establish 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 'l Minerals & Chern. 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 of the existence of a
violative condition." Kenny Richardson, 3 FMSHRC at 16. Section 11 0(c) liability is predicated
on aggravated conduct constituting more than ordinary negligence. BethEnergy Mines, Inc., 14
FMSHRC 1232, 1245 (August 1992).
Based on the judge's credibility determination, discussed supra, that Cullor did not know
about the brake problems until after the highloader broke down and that he responded to the
drivers' complaints, we conclude that substantial evidence supports his determination that Cullor
did not knowingly authorize, order, or carry out the violations. Accordingly, we affirm the
judge's determination that Cullor is not liable under section llO(c).
D.

Penalty Assessment

The Commission's judges are accorded broad discretion in assessing civil penalties under
the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491,492 (April1986). Such discretion is
not unbounded, however, and must reflect proper consideration of the penalty criteria set forth in
section llO(i) of the Mine Act,? Id (citing Sellersburg Stone Co., 5 FMSHRC 287, 290-94

brakes, Fort Scott's actions on May 27, as found by the judge, do not rise to the level of
aggravated conduct constituting unwarrantable failure.
7

Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties
under the Act:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the

1517

(March 1983), aif'd, 736 F.2d 1147 (7th Cir. 1984)). In reviewing ajudge's penalty assessment,
the Commission must determine whether the judge's findings -with regard to the penalty criteria
are supported by substantial evidence. Assessments "lacking record support, infected by plain
error, or otherwise constituting an abuse of discretion are not immune from reversal." U.S Steel
Corp., 6 FMSHRC 1423, 1432 (June 1984). The judge must make " [f]indings of fact on each of
the criteria [that] not only provide the operator with the required notice as to the basis upon
which it is being assessed a particular penalty, but also provide the Commission and the courts
. . . with the necessary .foundation upon which to base a determination as to whether the penalties
assessed by the judge are appropriate, excessive, or insufficient." Sellersburg, 5 FMSHRC at
292-93.
In Fort Scott I, the Commission explicitly directed the judge to "assess appropriate
penalties against Fort Scott based on the six penalty criteria set forth in section 110(i) ofthe Act,
30 U.S.C. § 820(i)." 17 FMSHRC at 1118. On remand, however, the judge addressed only the
criterion of negligence. 17 FMSHRC at 1339-40. We agree with the Secretary that, by limiting
his penalty assessment discussion to the negligence criterion, the judge failed to adequately
consider the other penalty criteria. Accordingly, we vacate the judge's penalty determination and
remand for findings of fact and reassessment of all of the penalty criteria. 8

person charged in attempting to achieve rapid compliance after
notification of the violation.
30 u.s.c. § 820(i).
8

With regard to Fort Scott's argument that it has paid the civil penalties with a check
marked "Final," we note that payment of civil penalties does not affect the Secretary's right to
petition for review of a judge's decision within 30 days. See 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a).

1518

III.
Conclusion
For the foregoing reasons, we affirm the judge's determinations that the violations were
not the result of Fort Scott's unwarrantable failure and that Cullor is not liable under section
llO(c), and vacate the judge's penalty assessment and remand for analysis consistent with this
opinion.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

1519

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Gary Cullor, President
Fort Scott Fertilizer-Cullor, inc.
20th & Sydney
Fort Scott, Kansas 66701
James Cullor
Fort Scott Fertilizer-Cullor, Inc.
20th & Sydney
Fort Scott, Kansas 66701
Administrative Law Judge Jerold Feldman
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judges
2 Skyline, 1Oth Floor
5203 Leesburg Pike
Falls Church, VA 22041

1520

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

September 25, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. KENT94-996
KENT 94-997
KENT 94-998
KENT 94-1024
KENT 94-1307

V.

HARLAN CUMBERLAND COAL
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 ("Mine Act" or "Act"), 30 U .S.C. § 801 et seq. ( 1994). At issue is whether Commission
Administrative Law Judge Roy J. Maurer correctly found that Harlan Cumberland Coal
Company ("Harlan Cumberland") violated 30 C.F.R. §§ 70.207(a) and 70.208(a) 1 when the
Department of Labor's Mine Safety & Health Administration ("MSHA") failed to receive several
respirable coal dust samples that Harlan Cumberland was required to submit to MSHA on a
bimonthly basis. 17 FMSHRC 1551 , 1554, 1557 (September 1995) (ALJ). Also at issue is
whether the $3000 in penalties assessed by the judge against Harlan Cumberland for its alleged
violations are supported by substantial evidence. /d. at 1555, 1558. The Commission granted
Harlan Cumberland's petition for discretionary review challenging these determinations. For the
reasons that follow, the judge's findings of violations are affirmed and his penalty assessments
are vacated and remanded.

1

Section 70.207(a) states in relevant part: "Each operator shall take five valid respirable
dust samples from the designated occupation in each mechanized mining unit during each
bimonthly [sampling] period." 30 C.F.R. § 70.207(a). Section 70.208(a) states in relevant part:
"Each operator shall take one valid respirable dust sample from each designated area on a
production shift during each bimonthly [sampling] period." 30 C.F.R. § 70.208(a).

1521

I.
Factual and Procedural Background
Harlan Cumberland operates the C-2 Mine in eastern Kentucky near the town of Gray'·s
Knob. On November 16, 1993, Eddie Sargent, Harlan Cumberland's safety director, certified on
Dust Data Cards that designated area samples were taken that same day at sampling points 904-0
and 904-1 in the C-2 Mine pursuant to section 70.208(a). Ex. R-1; Tr. 115-117. During
December 1993, Matthew Coots, a section foreman at the C-2 Mine, and Jeremy Madon, the
superintendent of Harlan Cumberland, certified on Dust Data Cards that five designated
occupation respirable coal dust samples were taken on Mechanized Mining Unit ("MMU") 004-0
in the C-2 Mine pursuant to section 70.207(a). Ex. R-2; Tr. 120-23.
MSHA did not receive either of the designated area samples, or two of the five designated
occupation samples. 17 FMSHRC at 1553, 1556-57. Nor did Harland Cumberland offer any
direct evidence at the hearing on this matter that the samples MSHA failed to receive were ever
actually mailed. /d. at 1554, 1557. The company's standard procedure was to transport its
respirable dust samples to its offices in Gray 's Knob, a task generally done by Sargent. /d. at
1554. The dust cassette card numbers for each sample were typically logged into a book for the
particular mine from which the sample had been collected; then the sample would be placed in a
box designated for outgoing mail. /d. The practice was for Clyde Bennett, Harlan Cumberland's
general manager, to then take the dust samples from the company's office to a nearby post office
and place them in the U.S. mail for non-certified delivery. /d., Tr. 153.
On December 9, 1993, in response to two Advisories of Noncompliance sent out by
MSHA's Respirable Dust Processing Laboratory, MSHA Inspector Calvin E. Riddle issued two
citations, Nos. 9885355 and 9885356, alleging that Harland Cumberland violated section
70.208(a) because it failed to take a valid respirable dust sample during the October/November
1993 bimonthly sampling cycle for sampling points 904-0 and 904-l. 17 FMSHRC at 1553. On
January 14, 1994, in response to another Advisory ofNoncompliance, Riddle issued Citation No.
9885368 alleging Harland Cwnberland violated section 70.207(a) because it failed to take five
valid respirable dust samples during the November/December 1993 bimonthly sampling cycle for
MMU 004-0. /d. at 1556-57. The Secretary subsequently proposed $1000 penalties for each of
the alleged violations of section 70.208(a). S. Pet. for Assessment of Penalty, Ex. A (August 18,
1994). The Secretary also proposed a $3500 penalty for the alleged violation of section
70.207(a). S. Pet. for Assessment of Penalty, Ex. A (August 24, 1994). Harlan Cumberland
contested each of these penalties.
The judge noted that sections 70.207(a) and 70.208(a) require submission of valid
respirable dust samples and concluded that, to determine the validity of a sample, it must be
received and examined by MSHA. 17 FMSHRC at 1554, 1557. Finding that MSHA received
none of the samples at issue, the judge determined that Harlan Cumberland violated sections
70.207(a) and 70.208(a). /d. at 1554-55, 1557. The judge concluded that the violations of

1522

sect~on 70.208(a) resulted from Harlan Cumberland's "moderate" negligence. Id. at 1555. He
also found that the company had a "propensity to repeatedly violate this same section of the
standards." /d. Noting that he had considered "all the statutory criteria in section llO(i) of the
Mine Act," 30 U.S.C. § 820(i), but without making any separate findings of fact on any of the·
criteria except the negligence criterion, the judge assessed a penalty of $1000 for each violation
of section 70.208(a). Id. The judge concluded that Harlan Cumberland's violation of section
20.207(a) was "serious" and due to the company's "moderate" negligence. ld. at 1557. Without
making any other findings on the penalty criteria, he assessed a $1000 penalty for this violation.
!d. at 1558.

II.
Disposition
Harlan Cumberland argues that under the plain meaning of sections 70.207(a) and
70.208(a), it complied with the standards when it took the samples and placed them in the mail.
H. C. Br. at 8- 13. The company faults the judge's interpretation of the cited standards as
requiring MSHA's receipt of a sample to render the sample "valid," arguing that it is impossible
for an operator to guarantee that MSHA will receive a sample. !d. at 11-13. Harlan Cumberland
also argues that the penalty assessed ·by the judge is excessive and not supported by substantial
evidence. !d. at 13-14. The Secretary responds that "MSHA cannot determine whether a dust
sample is valid for purposes of Sections 70.207 and 70.208 unless it receives the sample." S. Br.
at 10. The Secretary argues that the Commission should defer to this interpretation of sections
70.207(a) and 70.208(a), and reject Harlan Cumberland's argument that operators comply with
these standards merely by collecting samples and placing them in the mail. !d. at 14, 17. The
Secretary also argues that substantial evidence supports the judge's conclusion, regarding his
penalty assessment for the violations of section 70.208(a), that Harlan Cumberland had "a
persistent problem of failure to submit valid dust samples." Id. at 17-18 n.11. The Secretary
contends the judge correctly determined that the violation of section 70.207(a) was serious
"because it rendered the dust standards unenforceable." !d.
A.

Violations

We do not agree with Harlan Cumberland's contention that it complied with sections
70.207(a) and 70.208(a) merely by taking the requisite respirable dust samples and placing them
in the mail. Instead, the plain language of these standards, when read in conjunction with the
provision in Part 70 defining "valid respirable dust s~ple," requires receipt and examination by
MSHA. The Commission has recognized that where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning. Consolidation Coal Co., 18 FMSHRC 1541,
1545 (September 1996) (citations omitted). It is only when the plain meaning is doubtful or
ambiguous that the issue of deference to the Secretary's interpretation arises. Pfizer Inc. v.
Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984). Since the meaning of sections 70.207(a) and

1523

70.208(a) is clear and unambiguous, we need not address the Secretary's contention that her
interpretation of the 'standards is entitled to deference.
At issue here is whether Harlan Cumberland complied with the requirements of sections
70.207(a) and 70.208(a) to take "valid respirable dust samples." The term "valid respirable dust
sample" is defined elsewhere in MSHA's Part 70 regulations as "a respirable dust sample
collected and submitted as required by [Part 70], and not voided by MSHA." 30 C.F.R.
§ 70.2(p). Thus, to comply with sections 70.207(a) and 70.208(a), three elements must be met.
First, an operator must col,lect respirable dust samples in accordance with the many requirements
of Part 70 regulating how, where, by whom, and under what conditions such samples are to be
collected. See 30 C.F.R. §§ 70.201-70.208. Second, an operator must submit its samples to
MSHA. This requirement is addressed by section 70.209(a), which requires that "[t]he operator
shall transmit within 24 hours after the end of the sampling shift all samples collected to fulfill
the requirements ofthis part ... to [MSHA's] Respirable Dust Processing Laboratory, ... P.O.
Box 18179, Pittsburgh, Pennsylvania ...." 30 C.F.R. § 70.209(a). Finally, to be valid, an
operator's samples must not be voided by MSHA for some reason. A dust sample taken pursuant
to section 70.207(a) will be voided, for example, if no production takes place on the shift
sampled. See Ex. G-15, Advisory No. 0051.
The judge construed sections 70.207(a) and 70.208(a) as requiring that operators' samples
be received by MSHA in order to determine their validity. 17 FMSHRC at 1554, 1557. The ·
judge also defined a valid sample as one that "complies with the appropriate dust standard." Jd.
at 1554. Although this definition is incorrect- validity depends not on compliance with the
dust standards of Part 70, but rather on MSHA's determination of whether any circumstances
warrant voiding a particular sample- we nevertheless find that the judge reached the proper
conclusion. MSHA's definition of"valid respirable dust sample" includes the clear and
unambiguous requirement that, to be valid, a sample must not be voided by MSHA. It follows
that MSHA cannot determine whether any circumstances warrant voiding a dust sample unless it
receives and examines the sample. Any risk that the samples might not reach MSHA properly
lies with the operator. Once received by MSHA, the agency must then assume responsibility for
the orderly processing of the samples to determine their validity. Accordingly, we conclude that
the judge properly determined that Harlan Cumberland violated sections 70.207(a) and 70.208(a)
when MSHA failed to receive the samples at issue.
B.

Penalties

The determination of the amount of the penalty that should be assessed for a particular
violation is an exercise of discretion by the trier of fact, bounded by proper consideration of the
statutory criteria of section 11 O(i) of the Mine Act and the deterrent purposes underlying the
Act's penalty assessment scheme. Sellersburg Stone Co., 5 FMSHRC 287,294 (March 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984). Section llO(i) requires Commission judges to consider the

1524

following six criteria in assessing appropriate civil penalties:
(I] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i). Findings of fact on each of these statutory criteria must be made.
Sellersburg, 5 FMSHRC at 292.
Here, the judge made no findings for any of the violations on the appropriateness of the
penalties he assessed to Harlan Cumberland's size, whether the company showed good faith in
abating the violations, or the company' s history of previous violations. These omissions
necessitate a remand so that the requisite findings can be made.
Although the judge also made no findings on the effect of the penalties he assessed on
Harlan Cumberland' s ability to stay in business, the parties stipulated that a reasonable penalty
would have no affect on the company's survival. Ex. J-1 ~ 4. On remand, this must be taken into
consideration when the penalties are reassessed.
The judge made no gravity findings with respect to the two violations of section
70.208(a). He concluded that Harland Cumberland's violation of section 70.207(a) was
"serious." 17 FMSHRC at 1557. Although the gravity criterion is frequently analyzed in terms
of "seriousness" (see Consolidation Coal Co., 18 FMSHRC at 1549), the judge offered no
specific factual fmdings in support of his conclusion. Such supporting findings are required.
Sellersburg, 5 FMSHRC at 292; see also Mid-Continent Resources, Inc., 16 FMSHRC 1218,
1222 (June 1994) (a judge must analyze and weigh the relevant testimony of record, make
appropriate findings, and explain the reasons for his decision). We thus direct the judge to make
specific findings on the gravity criterion on remand.
The judge found that Harlan Cumberland was moderately negligent in connection with
each violation. 17 FMSHRC at 1555, I 557. He offered no explanation for his finding of
moderate negligence with respect to Harlan Cumberland's violation of section 70.207(a), which
we direct him to do on remand. In explanation of his negligence findings with respect to the two
violations of section 70.208(a), the judge stated that "[t]he record is clear that MSHA did not ·
receive the subject dust cassettes, and that, without more, is enough for me to find ordinary or
'moderate' negligence." Id. at 1555. We find this analysis of the negligence criterion
inadequate.

1525

The judge foWld that Harlan Cumberland took the requisite samples. 17 FMSHRC at
1555. Thus, the only.omission for which the judge could have found Harlan Cumberland
negligent is failure to mail the samples. But the judge made no finding regarding whether th~
samples were mailed. The judge observed that Harlan Cumberland "was unable to establish that
the cassettes were actually mailed to MSHA." !d. at 1555. But he failed to analyze and weigh
the disputed circumstantial evidence in the record on this question. On the one hand, Harlan
Cumberland offered evidence that respirable dust samples were routinely mailed according to a
well-established procedure. See Tr. 148-49. On the other hand, the Secretary argued that Harlan
Cumberland failed to adduce any evidence that the samples at issue were either logged according
to the company's mailing procedures or actually mailed, and that, thus, "the weight of the
circumstantial evidence demonstrates the cassettes were not mailed." S. Proposed Findings of
Fact and Conclusions of Law at 4-6.
If the company actually mailed the samples, it was not at all negligent. It would be
inequitable to impute to Harlan Cumberland the negligence of the U.S. Postal Service in failing
to deliver the samples. Any failure by the company to place the samples in the mail, however,
would constitute some degree of negligence. We therefore direct the judge to make specific
findings on this issue on remand.
But this is not the end of the inquiry concerning whether Harlan Cumberland was
negligent, or the degree of its negligence. The Commission has held that "a history of similar
violations at a mine may put an operator on notice that it has a recurring safety problem in need
of correction and thus, this history may be relevant in determining the degree of the operator' s
negligence." Peabody Coal Co., 14 FMSHRC 1258, 1264 (August 1992). Regarding his
assessment of penalties for the violations of section 70.208(a), the judge noted that he considered
Harlan Cumberland's "propensity to repeatedly violate this same section." 17 FMSHRC at 1555.
But the judge failed to explain the basis of this finding, nor did he relate it to the negligence
criterion.
Although Harlan Cumberland's C-2 Mine had been cited once before for a violation of
section 70.207(a) when MSHA did not receive samples as required (see Ex. G-13), the record
contains no prior violations by the C-2 Mine of section 70.208(a). Even if the judge had
reasoned that a prior violation of section 70.207(a) should have put Harlan Cumberland on notice ·~
that it needed to take greater efforts to ensure the MSHA received its respirable dust samples
·
collected pursuant to section 70.208(a), one prior violation does not establish a "propensity to
repeatedly violate" the cited standard. However, several of Harlan Cumberland's other mines
had also been cited during 1993 for similar violations of both standards. See Exs. G-12, G-14,
G-16, G-17, G-18, and G-19.2 These other violations could have placed Harlan Cumberland on
notice of a problem with its mailing of respirable dust samples. However, the judge failed to

2

The C-2 Mine was cited on May 18, 1993 for a violation of section 70.207(a), but this
violation was based on a sample being received but voided because of"invalid production." Ex.
G-15. This violation is thus irrelevant for purposes of determining whether Harlan Cumberland
was on notice that it needed to take greater efforts to ensure the MSHA received its respirable
dust samples.

152€

explain whether this was his rationale, and if so, how the violations at other mines could have put
the C-2 Mine on notice of a problem. We therefore direct the judge to make specific findings on
this issue on remand.

III.
Conclusion
For the foregoing reasons, we affirm the judge's conclusion that Harlan Cumberland
violated sections 70.207(a) and 70.208(a), and we vacate his penalty assessment and remand for
reassessment consistent with our decision.

Marc Lincoln Marks, Commissioner

~~ t. "'7!
Theodore F. Verheggen, Commissioner

1527

Distribution

H. Kent Hendrickson, Esq.
Rice and Hendrickson
P.O. Box 980
Harlan, KY 40831
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
Suite 600
Washington, D.C. 20006

1528

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

September 29, 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION .(MSHA),
on behalf of RICHARD E. GLOVER
and LEON KEHRER
v.

Docket No. LAKE 95-78-D

CONSOLIDATION COAL COMPANY

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

DECISION
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is whether Administrative
Law Judge Gary Melick properly found that Consolidation Coal Company ("Consol'') violated
section 105(c)(l) of the Mine Act, 30 U.S.C. § 815(c)(1), 1 when it transferred mine
representatives Richard Glover and Leon Kehrer from their positions as "scooter barn"
mechanics to positions as underground mechanics. 17 FMSHRC 957 (Jun~ 1995) (ALJ). The
Commission granted Consol's petition for discretionary review challenging the judge's holding.
The National Mining Association ("NMA") and the United Mine Workers of America
("UMWA") sought and were granted amicus status in this proceeding, and an oral argument was

1

Section 105(c)(l ) provides in pertinent part:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of any
miner, [or] representative of miners ... because of the exercise by
such miner, [or] representative of miners ... of any statutory right
afforded by this [Act].

1529

held. For the reasons that follow, we affirm the finding of violation but remand for further
analysis as to the civil penalty.
I.

Factual and Procedural Background
Glover and Kehrer had worked as scooter barn mechanics at Consol's Rend Lake Mine
for many years. 17 FMSHRC at 959. The scooter barn is located underground and, on June 21,
1994, was situated about ·150 feet from the bottom of the "B" shaft. !d. It is a shop area that
measures 18 feet by 70 feet with rock walls, a beamed ceiling, and a cement floor containing
equipment including welders, drill presses, and grinders. Jd The mechanics in the scooter barn
repair diesel and battery-operated mantrips and other rubber-tired equipment. such as tractors and
scoops. !d.; Tr. 24. 84-86. Consol assigned one mechanic for each of three shifts to work in the
scooter barn. 17 FMSHRC at 959; Tr. 11. 56. The three shifts rotated every 2 weeks; the
rotations were designated as A. B, and C turns. Tr. 16.
Glover had worked at the mine for 25 years and for 17 of those years he was a scooter
barn mechanic. 17 FMSHRC at 959. He worked the A turn and, for 5 or 6 years, had been the
alternate walkaround representative for the shift. !d. at 958-59; Tr. 16, 42, 155. Before that, he
had been a union safety committeeman. Tr. 42. Kehrer had worked at the mine for 2 I years, and
was the scooter barn mechanic and walkaround representa~ive for the C turn. 17 FMSHRC at
959; Tr. 103-04, 155. When Glover and Kehrer worked the day shift rotation, walkaround duties
consumed approximately two-thirds oftheir time? 17 FMSHRC at 959; Tr. 43, 50-51, 55.
During their absence, other mechanics filled in as replacements in the scooter barn. Tr. 155-57.
Assistant master mechanic Johnny Robert Moore and mine superintendent Joseph Wetzel
testified that on June 11 , 1994, a meeting of supervisory personnel was held to discuss various
problems at the mine. Tr. 173-74, 208. Inadequate transportation and mantrip availability were
identified as major problems and management decided to station a mechanic in the scooter barn
on a 24-hour basis. 17 FMSHRC at 960-61; Tr. 173-74, 208-09.
On Friday, June 21, 1994, the maintenance foreman on the A turn, Vernell Burton,
informed Glover that he was being transferred to a working section because he was acting as
representative of miners and walking with the state and federal inspectors. 17 FMSHRC at 959;
Tr. 27, 151. Burton told him that there was a possibility that if Glover stopped his walkaround
duties he could remain in the scooter barn. 17 FMSHRC at 959; Tr. 28.

2

The judge found that the Complainants spent 4 out of 5 days on walkaround during the
day shift. 17 FMSHRC at 959. However, the record testimony establishes that they did not walk
around all day; on each of the days they walked around, Glover and Kehrer returned to the
scooter barn with approximately 1 ~ hours remaining in their shift. Tr. 51.

1530

That same day, assistant master mechanic Moore announced to Kehrer that he was being
removed from·the scooter bam because he was a walkaround with the state and federal
authorities. 17 FMSHRC at 959-61; Tr. 76-77, 181 . Moore told Kehrer that if he relinquished
his walkaround responsibilities he could remain in the scooter barn. 17 FMSHRC at 960; Tr. 76.
Billy R. Sanders, an inspector with the State of Illinois, Department of Mines and Minerals, was
present for and testified to this conversation. 17 FMSHRC at 959-60; Tr. 76-77.
Kehrer then spoke to Scott Wamsley, maintenance superintendent, who repeated that
Kehrer was being removed because of his walkaround duties and that he either had to quit his
walkaround duties or lose his job as scooter barn mechanic. Tr. 90. Kehrer also spoke with mine
superintendent Wetzel, who stated that the transfer was not because he was a walkaround but
because Consol wanted to make the scooter barn more productive. Tr. 91-92.
On Monday, June 24, Burton instructed Glover to report to working section 1-G as a
maintenance mechanic. 17 FMSHRC at 959; Tr. 20. At the end ofthe shift, Glover and Kehrer
went to see Wetzel and Wamsley. 17 FMSHRC at 959. Wetzel informed them that the
"official" reason for the transfer was to make the scooter barn more productive and that they did
not have the option of quitting their walkaround duties to stay in the scooter barn. 17 FMSHRC
at 959; Tr. 31, 95.
The transfers did not result in a change in job classification or salary rate. Tr. 23, 33, 219.
Glover and Kehrer were transferred as mechanics to the working sections, where they worked
high voltage electrical equipment and were exposed to hazards such as dust, methane, and roof
falls. 17 FMSHRC at 959-60; Tr. 24, 105. The miners were not given any additional training
after the transfers. Tr. 24, 97-98. Not feeling safe in his new assignment, Glover subsequently
bid on a motorman job, taking a pay cut of $1.00 per hour and, because that shift already had a
walkaround representative, relinquishing.those responsibilities as a result. 17 FMSHRC at 959;
Tr. 20, 26, 70-71.
Glover and Kehrer filed a complaint alleging discrimination under the Mine Act with the
Secretary of Labor who filed a complaint on their behalf. Consol contested the complaint and the
proceeding was assigned to Judge Melick for a hearing.
The judge concluded that Consol violated section I 05(c)( I) by transferring the
Complainants from the scooter bam, and gave three alternative rationales for his determination.
First, the judge found that the operator's "policy," i.e., the transfer, was "facially discriminatory"
because it "effectively" barred miners' representatives from becoming or remaining scooter barn
mechanics, discouraged miners who might wish to work as scooter bam mechanics from
becoming miners' representatives, and restricted miners' rights to select whom they wished to
represent them. 17 FMSHRC at 963 (emphasis added). Second, the judge found the transfers
discriminatory under the Commission's test enunciated in Secretary ofLabor on behalfofPasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (October 1980), rev 'don other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F .2d 1211 (3d Cir. 1981 ); Secretary of Labor on

1531

behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981) ("PasulaRobinette" analysis), because Glover and Kehrer were members of a protected class who had
engaged in protected activity prior to the transfer, and the transfer was motivated solely by their
protected activity. 17 FMSHRC at 963-64. Third, the judge stated that, assuming arguendo, the
"mixed motive" analysis under Pasula-Robinette was applicable, Consol's business justification
of transferring the Complainants to secure 24-hour coverage in the scooter barn did not outweigh
Congressional intent to protect miners exercising their walkaround rights under the Act. /d. at
964-65. The judge order~d Consol to reinstate the miners to their previously-held positions and
assessed a $10,000 civil penalty against Consol. ld. at 965.
II.

Disposition
Consol argues that the judge erred in reaching a conclusion that will require operators to
engage in major restructuring of their workforces and provide accommodation for walkaround
representatives that work undue hardship on production activities. PDR at 6-13. 3 Consol
contends that the judge's decision is not supported by substantial evidence because the totality of
circumstances demonstrates that Complainants' transfer was not unlawfully motivated but
motivated by the operator's legitimate business need to have mechanics in the scooter barn on a
regular basis." !d. at 13-14, 20. Consol stresses that the evidence established that the operator
wanted the miners to continue their walkaround duties, and that the Secretary failed to prove that
the transfer discouraged or interfered with walkaround rights at the mine. !d. at 14-15. Consol
further asserts that the transfers were not facially discriminatory and, even if they were, the judge
erred in concluding that "an operator may not raise as a defense the lack of discriminatory ·
motivation or valid business purpose" in cases of facial discrimination. /d. at 15-19 (quoting 17
FMSHRC at 962).
In support ofConsol's position, amicus NMA adds that the facial discrimination analysis
in Swift v. Consolidation Coal Co., 16 FMSHRC 201 (February 1994), does not apply to this
case. NMA Br. at 3-10. Even if the analysis were to apply, NMA asks the Commission to revisit
its holding in Swift. !d. at 7-8 & n.2, 11-17. NMA further argues that, in accordance with
Congressional intent, Consol was entitled to exercise its legitimate management rights to
accommodate allegedly pervasive inspections conducted by the Department of Labor's Mine
Safety and Health Administration ("MSHA"). /d. at 1-2 & n.l, 17-22.
The Secretary responds that the judge properly concluded that the transfers violated
section I 05(c) under either a facial discrimination or Pasula-Robinette analysis. S. Br. at 8-11.
The Secretary additionally argues that Consol's policy impermissibly interfered with the exercise
3

Consol designated its PDR as its brief.

1532

of the walkaround right protected under Mine Act section 103(f), 30 U.S.C. § 813(f). !d. at 8-31.
The Secretary disagrees with Consol's assertion that the transfers were due to the miners'
absences, pointing to the statements of the miners~ immediate supervisors that the transfers were
based on their status as walkaround representatives.. /d. at 22. The Secretary contends that the
transfers constituted an adverse action, noting that the scooter barn had fewer dangers than the
working sections and asserting that the scooter barn was a more desirable position than those to
which the miners were transferred. !d. at 26-28. She asserts that Consol's transfer had the effect
of chilling the miners'. right to choose their walkaround representative. !d. at 28-29.
In support of the Secretary, amicus UMW A asserts that Consol' s primary defense, that
operators should not be required to engage in a "major restructuring" in order to comply with the
Act, is incorrect because an operator must comply with the provision of the Mine Act in order to
operate a mine and is not at liberty to choose oi1ly those provisions that are easy or inexpensive to
satisfy. UMWA Br. at 9. UMWA co~tends that the Secretary did not dictate any restructuring,
but rather Consol chose a solution to its transportation ditliculties that impermissibly infringed
on miners' rights under section 103(f) of the Mine Act. /d. at 10-12.
A.

Discrimination

Section l05(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act.' A miner alleging discrimination under the Mine Act
establishes a prima facie case of prohibited di.scrimination by proving that he engaged in
protected activity and that the adverse action.complained of was motivated in any part by that
activity. Pasula, 2 FMSHRC at 2799; Rohinelle, 3 FMSHRC at 817- I 8. The operator may rebut
the prima facie case by showing either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity. Rohinefle,. 3 FMSHRC at 818 n.20. If the
operator cannot rebut the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was ·motivated by the miner's unprotected activity alone. !d.
at 817 -18; Pasula, 2 FMSHRC at 2799; see also Eastern Assoc. Coal Corp. v: FMSHRC, 813
F.2d 639, 642 (4th Cir. .1987). ·
The judge determined that the "specific action by Consol in transferring the Complainants
in this case for their activities as miners' representatives" was "discriminatory under the
customary analysis applied to discrimination cases." 17 FMSHRG at 963. As the judge found,
there is "no dispute" that both Glover and Kehrer, as miners' representatives, "were members of
a protected class and had engaged in protected activity prior to their transfer." !d. at.963-64.
The protected activity consisted of Complainants' service as walkaround representatives pursuant
to Mine Act s.ection 103(f), which provides that "a representative authorized by his miners ·shall
be given an opportunity to accompany the Secretary . . . during the ·physical inspection of any

1533

coal or other mine..... " 30 U.S.C. § 813(f). Accordingly, we conclude that the judge correctly
determined that the Secretary proved the element of protected activity .4
The judge concluded that Consol's transfer of the miners from the scooter barn to the
section mechanic job satisfied the second element of the Pasula-Robinette prima facie case,
adverse action. 17 FMSHRC at 964. The judge reasoned that the section mechanic position was
"less desirable and more hazardous work." Jd at 961. Substantial evidence supports this
finding. 5 Glover and Kehrer testified that working in the sections exposed miners to hazards,
such as dust, methane and roof falls, that were not present in the scooter barn, an enclosed
underground shop area constructed of concrete floor, block walls, and beam ceiling. Tr. 11 , 26,
105. Both Complainants testified that the section equipment consisted of high voltage machines
that were far more dangerous than the machinery they worked on in the scooter barn. Tr. 20, 24,
105. Section work also involved heavy lifting whereas the scooter barn did not. Tr. 105. Consol
conceded that the "scooter barn is fraught with fewer dangers than is a working section. " PDR at
5 (citing Tr. 26-27. 45). Both Glover and Kehrer had worked in the scooter barn for many years
( 17 FMSHRC at 959), and neither miner was given additional training after the transfer,
increasing the danger of their new positions. Tr. 24, 97-99. Glover testitied that he bid out of
the section job because he had not performed that job in 17 years and felt unsafe. Tr. 20. The
distinct nature of and qualifications tor the two jobs was confirmed by mine superintendent
Wetzel. Tr. 219, 230. Although the Commission has never directly addressed the issue, transfers
to more arduous or difficult work have been held to be discriminatory under the National Labor
Relations Act, 29 U.S.C. § 151 et seq. (1994) ('"NLRA'l Marshall Durbin Poul!Jy Co. v. NLRB ,
39 F .3d 1312, 1320-21 (5th Cir. 1994); Manufacturing Services Inc., 295 NLRB No. 31,
131 LRRM 1501 (June 1989).6 Likewise, we conclude that the judge correctly determined that

4

Substantial evidence establishes that, in June 1994, Glover and Kehrer were serving
terms as alternate safety committeeman and safety committeeman, respectfully , having been
appointed by union officials and their appointments confirmed by vote of local union
membership composed of Rend Lake miners. Tr. 16, 238, 241-45. This method of designation
satisfies 30 C.F.R. § 40.2(b), which states "[m]iners or their representative organization may
appoint or designate different persons to represent them .... " Thus, we reject the suggestion of
NMA and Consol that the Complainants were not properly designated miners' representatives.
5

Under the Mine Act, an administrative law judge's findings of fact are to be affirmed if
they are supported by substantial evidence. 30 U.S.C. § 823(d)(2)(A)(ii)(I); Secretary ofLabor
on behalfof Price and Vacha v. Jim Walter Resources, Inc., 14 FMSHRC 1549, 1555
(September 1992).
6

The Commission has looked for guidance to case law interpreting similar provisions of
the NLRA in resolving questions arising under the Mine Act. See, e.g., Delisio v. Mathies Coal
Co., 12 FMSHRC 2535,2542-45 (December 1990).

1534

the transfer of these two longstanding scooter bam mechanics to a more dangerous assigrunent on
the section was adverse. 17 FMSHRC at961, 964. 7
Because the record established that work on the sections was more dangerous, we reject
NMA's assertion that the transfer was merely an action that the miners disliked. Compare
Secretary ofLabor on behalfofPrice and Vacha v. Jim Walter Resources, Inc., 12 FMSHRC
1521, 1533 (August 1990) (adverse action "is not simply any operator action that a miner does
not like"). Further, NMA's contention that, although the scooter barn was safer, Glover and
Kehrer were exposed to dangerous section conditions while on walkaround, misses the point.
The transfer to the working sections meant that the Complainants would be spending nearly all
their working time in the more dangerous position. By contrast, because Glover and Kehrer were
not on walkaround when on the second and third shit\ rotations, the Complainants, prior to the
transfers, spent more than two-thirds of their working time in the safer environment of the
scooter barn. Tr. 50-51.&
Substantial evidence also establishes that the adverse action was motivated by the
protected activity. We agree with the judge that, "it cannot be disputed that the adverse action
was solely motivated by the fact that the Complainants were performing their duties as
representatives of miners." 17 FMSHRC at 964. In Pasula, the Commission noted that section
105(c) proscribes adverse action "because" a miner engages in a protected activity, whereas the
comparable provision of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801
7

The Secretary sought to introduce supplemental authorities on this point by a letter
dated June 2, 1997. Consol, by its letter dated June 4, 1997, opposed and requested that the
authorities be stricken from the record. We do not address Consol's request because our
conclusion does not rely on the Secretary's supplemental authorities. As a consequence,
Consol's request to strike those authorities is denied as moot.
On May 16, 1997, the Commission granted the Secretary's motion to strike certain
portions of Consol's response to the brief of amicus curiae UMW A. We reasoned that, pursuant
to 30 U.S.C. §§ 823(d)(2)(A)(iii) & 823(d)(2)(c), the disputed materials, consisting of an
affidavit and two attached exhibits that were not part of the evidentiary record before the judge,
were not properly subject to our review. Consol filed a motion requesting the Commission to
reconsider its May 16 order or, alternatively, for the Commission to remand and reopen to
consider the disputed materials. For the reasons set forth in the May 16 order, we also deny
Consol's petition for reconsideration and motion to remand. Moreover, the materials Consol
seeks to introduce in its petition and motion are not probative of the discrimination issue. That
Complainants may have moved to non-section jobs after reinstatement, as Consol asserts, does
not pertain to the relevant comparison- between the section and scooter barn mechanic jobs in measuring the adverse nature of the transfer. In addition, our finding of discrimination does
not rest on the ground that Consol's petition and motion were attempting to refute, i.e., that a
discriminatory effect was shown because Glover took a lower-paying job and gave up his
walkaround responsibilities. See Pet. for Recons. and Mot. to Remand at 4.
&

1535

et seq. (1976) ("1969 Coal Act") used the term "by reason of the fact that." 2 FMSHRC at 2798.
We explained the change by reference to the report of the Senate Committee that drafted section
105(c)(l), which states "[w]henever protected activity is in any manner a contributing factor to
the retaliatory conduct, a finding of discrimination should be made." !d. (quoting S. Rep. No.
181, 95th Cong., I st Sess. 36 (1977) ("S. Rep."), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal Mine
Safety and Health Act of 1977, at 624 (1978) ("Legis. Hist.") (emphasis added)). Here, the
protected walkaround duties contributed not just "in any manner" to the transfers. they were the
sole motivating factor behind the adverse transfers. 9
We are unpersuaded by Consol's attempt to treat Glover's and Kehrer' s absences from
the scooter barn (as opposed to the exercise oftheirwalkaround rights) as the motivating reason
for their transfer. The absences resulted from, and \vere inextricably intertwined with the
Complainants'.exercise ofwalkaround rights. which are statutorily protected under the Mine Act.
Thus, we agree with the judge that the adverse action, in the form of the transfers, was taken as a
result of the inevitable consequences of engaging in this protected activity.
The Commission has previously recognized the link between walkaround rights and
absenteeism. In Secretary<~{ Lahor on beha(fo,{Truex v. Consolidation Coal Co., 8 FMSHRC
1293 (September 1986), we noted that, in enacting the walkaround right, Congress recognized
''that an operator would be required to make modifications in work assignments to permit miner
representatives to exercise section 103(f) rights." /d. at 1299. Consequently, we must consider
the protected activity's inescapable result (absenteeism) in applying the "motivation" prong of
the Pasula test in this case. Accordingly, we conclude that, under Pasula, the judge properly

9

Commissioner Verheggen further notes that Supervisors Burton and Moore expressly
told Glover and Kehrer at the time of their transfer that the transfer was because they were
walkaround representatives. 17 FMSHRC at 959-61. Faced with an argument similar to
Consol's here that the statements oflower-level supervisors were inartful and should not be held
violative of the NLRA, the D.C. Circuit observed:
A rough and ready point made by a supervisor in overalls, the kind
of supervisor who is really more naturally engaged in conversation
with the workers, may be far more credible and influential so far as
the ordinary worker is concerned than a necessarily more formal,
structured and purposeful statement of a high-ranking executive.
International Brotherhood ofTeamsters v. NLRB, 435 F.2d 416, 417 (D. C. Cir. 1970).
Commissioner Verheggen believes that Consol's post hoc explanations fail to obscure the initial
"rough and ready point" expressed so forcefully by Burton and Moore. These statements are
central to Commissioner Verheggen's finding that the adverse transfers were motivated by the
exercise of protected walkaround rights.

153.6 '

found that the transfers were motivated by the Complainants' protected activity, and that the
Secretary made a prima facie case of discrimination under secti"on lOS(c).
An operator can rebut a prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by protected activity. Robinette, 3
FMSHRC at 818 n.20. Alternatively, an operator can establish an affirmative defense by
showing that it was also motivated by a miner's unprotected activity, and that it would have
taken the adverse action. in any event for the unprotected activity alone. !d. at 817-18~ Pasula, 2
FMSHRC at 2799.
Because the absences stemmed solely from the exercise of the walkaround right, they
cannot be considered unprotected activity. and therefore do not establish the basis for an
affirmative defense. See Price and Vacha, 14 FMSHRC at 1556 (affirmative defense was not
available when two miner representatives were discharged for not complying with a
discriminatorily applied policy). Further, because all of the miners' activity in this case was
protected, the Commission cases cited by Consol (PDR at 12), such as Mooney v. S'OHJO
Western Mining Co., 6 FMSHRC 510 (March 1984) and Schulte v. Lizza Indus.. Inc.. 6
FMSHRC 8 (January 1984), which found that employers legitimately discharged miners for
excessive absences, are inapposite. In those cases, unlike the case at bar, the employees'
absences did not arise from their participation in protected activity. Mullins v. Beth-Elkhorn
Coal Co11J., 9 FMSHRC 891 (May 1987), relied upon 'by the NMA, (NMA Br. at 12-15), is
likewise distinguishable. There the Commission found that a Part 90 miner did not engage in
protected activity when seeking a particular job. 9 FMSHRC at 900. In the present case,
substantial evidence supports the judge's finding that walkaround representatives Glover and
·
Kehrer engaged in protected activity.
Consol's and NMA's additional arguments also lack merit. Consol contends that,
because employers are only required to ''reasonably accommodate" qualified persons under the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (1994) ("ADA'') and the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (1994) ("Rehabilitation Act"), by analogy,
only reasonable accommodation of an employee's protected walkaround activities is required
under the Mine Act. PDR at 8. However, under the ADA and the Rehabilitation Act, unlike the
Mine Act, Congress imposed a reasonable accommodation requirement on employers to
accommodate covered persons. 42 U.S.C. § 1211 1(9); 42 U.S.C. § 12112(b)(5) (ADA);
Southeastern Community College v. Davis, 442 U.S. 397,412-13 (1979) (Court found an
obligation of reasonable accommodation under discrimination provision of the Rehabilitation
Act); Alexander v. Choate, 469 U.S. 287, 300 n.20 (1985) (same). The Mine Act contains no
r~asonable accommodation language, nor have the Commission or the courts construed the Act
. to adopt a reasonable accommodation approach. On the contrary, the Mine Act's legislative·
history has led the Commission and·courts to conclude that section 105(c) is to be construed
"expansively to assure that miners will not be inhibited in any way in exercising any rights
afforded by the [Act]." S. Rep. at 36, Legis. Hist. at 624 (quoted in Moses v. Whitley
Development Corp., 4 FMSHRC 1475, 1480 (August 1982), and Pasula, 2 FMSHRC at 2791);

1537

see also Secretary of Labor v. Cannelton Industries, 867 F.2d 1432, 1437 (D.C. Cir. 1989)
(Congress intended Mine Act to be liberally construed). We also reject NMA's assertions that,
because of MSHA's "pervasive" inspections, an operator need only reasonably accommodate
Complainants' exercise of their rights under section 103(f). NMA Br. at 2, 21-22. 10
In sum, we affirm the judge's determination that Consol's transfer ofwalkaround
representatives Glover and Kehrer violated section 105(c) of the Mine Act.''
B.

Pe·nalty

Consol argues that the imposition of a $10,000 penalty is unwarranted given the lack of
affirmative evidence of discriminatory intent and the existence of no final section I OS(c)
violations at the mine in the past I 0 years. PDR at 21-22. The Secretary asserts that, while a
$10,000 penalty is appropriate in this case, remand is necessary because the judge failed to
discuss the six penalty criteria under section 1 1O(i), 30 U.S.C. § 820(i). S. Br. at 31-32.
Commission judges are accorded broad discretion in assessing civil penalties under the
Mine Act. Westmoreland Coal Co., 8 FMSHRC 491.492 (April I 986). Such discretioi1 is not
unbounded, however, and must reflect proper consideration of the penalty criteria set forth in
section I 1O(i) of the Act. 12 /d. (citing Sellersburg Stone Co .. 5 FMSHRC 287. 290-94 (March
1983), qf('d, 736 F.2d 1147 (7th Cir. 1984)). In reviewing a judge's penalty assessment, the
Commission must determine whether the judge's findings with regard to the penalty criteria are
supported by substantial evidence. The judge must make .. [fJindings of fact on each of the
10

Because we reject NMA' s argument that MSHA ' s inspection presence calls for
reasonable accommodation, we do not address its accompanying request that the Commission
take judicial notice of statistics pertaining to the number of coal mines and MSHA inspectors in
the years I 975-1995. NMA Br. at 2 n.l.
11

In light of our disposition, the Commission does not address whether the transfers
were facially discriminatory under the analysis of Swift, 16 FMSHRC 201, nor whether that case
need be revisited, as the operators assert.
12

Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties
under the Act:
[1] the operator's history of previous violations, (2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of the violation.
·

1538

criteria [that] not only provide the operator with the required notice as to the basis upon which it
is being assessed a particular penalty, but also provide the Commission and the courts . .. with
the necessary foundation upon which to base a determination as to whether the penalties assessed
by the judge are appropriate, excessive, or insufficient." Sellersburg, 5 FMSHRC at 292-93.
It does not appear that the judge considered all of the statutory criteria in determining an
appropriate penalty for Consol's discrimination violation. The judge did not separately discuss
facts relating to any of the criteria. Instead, the judge stated that "[c]onsidering the serious
impact Consol's actioris herein would have on the willingness of persons to serve as miners'
representatives and the intentional and obvious discriminatory nature ofthe actions." a $10,000
penalty was warranted. 17 FMSHRC at 965. This statement does not satisfy the requirements
we set out in Sellersburg.

Accordingly, we vacate the judge's penalty assessment and remand for entry of detailed
tindings as to each of the six section 11 O(i) criteria, and assessment of an appropriate penalty. In
particular, we instruct the judge to explain his finding that the "nature" of Conser s action was
"intentional" in relation to the negligence criterion. See Thunder Basin Coal Co ..
19 FMSHRC _, slip op. at 9, No. WEST 94-370 (September 5, 1997). Although we do not
address Consol's overall contention that the penalty amount is too high, we reject its assertion
that the absence of any final section 105(c) determinations at the mine should mitigate the
penalty. As we explained in Secretary of Labor on beha!fa_{ Carroll Johnson v. Jim Walter
Resources. Inc., 18 FMSHRC 552 (April 1996), " section 11 O(i) requires the judge to consider the
operator' s general history of previous violations . .. [including] [p]ast violations of all safety and
health standards...." ld. at 557 (quoting Peabody Coal Co., 14 FMSHRC 1258, 1264 (August
1992) (emphasis added)). Accordingly, on remand, the judge should consider Con sol 's gei1eral
history of violations at the mine, not only its prior section 105(c) violations.

1539

III.
Conclusion
For the foregoing reasons, we affirm the judge's finding of violation, but vacate the
penalty assessment and remand for reassessment.

Marc Lincoln

._.,.:--

James C. Riley, Commiss ioner

Theodore F. Verheggen, Commissioner

1540

----···

Distribution

David J. Hardy, Esq.
Jackson & Kelly
P.O. Box 553
Charleston, WV 25322
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Judith Rivlin, Esq.
United Mine Workers of America
900 15'h Street, N. W.
Washington, D.C. 20005
Michael F. Duffy, Esq.
National Mining Association
1130 17'h Street, N.W.
Washington, D.C. 20036
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite I 000
Falls Church, VA 22041

jhe

1541

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

September 29, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (f\1SHA)
Docket No. LAKE 95-267.

v.

AMAX COAL COMPANY

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

DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"); raises the issue of whether the
conceded failure by AMAX Coal Company (''AMAX") to extend a line curtain to within 40 feet
of a working face, a violation of its ventilation plan and thus of 30 C.F.R. § 75.370(a)(l),' was
the result of the AMAX' s unwarrantable failure. 2 Administrative Law Judge Arthur Amchan
found the violation unwarrantable. 17 FMSHRC 1747 (October 1995) (ALJ). The Commission
granted AMAX's petition for discretionary review challenging that determination. For the
reasons that tallow, the judge' s decision stands as if affirmed.

1

Section 75.370(a)(l) provides in part that "[t]he operator shall develop and follow a
ventilation plan approved by the district manager." AMAX violated the provision of its
ventilation plan which stated that "[w]hen mining on advance utilizing flooded bed scrubber
miners and blowing canvas, line curtain will be maintained to within 40 feet of the working face
with a minimum airflow of 8,000 cfm behind the curtain." G. Ex. 3; Tr. 26-27.
2

The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a
violation.

1542

I.

Factual and Procedural Background
On the morning ofNovember 8, 1994, MSHA ventilation specialist Robert M.
Montgomery was inspecting an area of the 2 West/Main West-South ("2W/MWS") section of
AMAX's Wabash Mine in eastern Illinois. 17 FMSHRC at 1747; Tr. 14, 23. That day, AMAX
section foreman Kyle Wethington was in the No.6 entry of the section prior to the
commencement of mini~g in that entry. 17 FMSHRC at 1749. Wethington, along with William
Rowe and Tommy Stephens, the two miners who were to mine in that entry with the remote
control continuous miner, had cleaned up gob in the entry before beginning to cut coal. ld.; Tr.
109, 112-13. At around the time the miners began cutting the coal, Wethington left the No.6
entry to examine some stoppings that had been blown at the head of the belt, a condition to
which Wethington was alerted by another MSHA inspector present at the mine that day. 17
FMSHRC at I 749; Tr. I 10-11, 113-14. At that time, the line curtain in the entry was within 40
feet of the face, consistent with the Wabash Mine's ventilation plan requirement for working
faces. 17 FMSHRC at 1749; Tr. 112-1 3.
In the 40 to 45 minutes that Wethington was away from the No.6 entry, Rowe had
completed three cuts into the coal. and was finishing the fourth and final cut when Wethington
returned. 17 FMSHRC at 1749; Tr. 100, 106, 114-15, 202, 224. In mining the first and second
cuts, the continuous miner was advanced 20 feet on the right side of the face, then 20 feet on the
left. I 7 FMSHRC at 1749; Tr. 193. Thereafter the mining machine was moved back to the right
to advance another 15 to 20 feet, at which time the line curtain should have been extended to
stay within 40 feet of the face. 17 FMSHRC at 1749; Tr. 90, 194. However, Rowe and Stevens
admitted that the curtain was never moved from its original position. 17 FMSHRC at 1749; Tr.
200, 203, 224. Thus, the third cut on the right and the fourth and final cut on the left took place
while AMAX was in violation of its ventilation plan. 17 FMSHRC at 1749.
Upon his return to the No.6 entry, Wethington instructed Stevens regarding the miners'
next task, which was to cut coal in the No.5 entry. ld. at 1750. Meanwhile, Inspector
Montgomery, who was inspecting the working faces of that section of the mine, came upon a ram
car waiting to enter the No. 6 entry as soon as another ~am car, operated by Robert Scott, left the
entry. ld. at 1747-48; Tr. 23. When the waiting ram car entered the No.6 entry, Inspector
Montgomery followed it, and saw foreman Wethington walking out of the entry. 17 FMSHRC at
1748. After Wethington noticed the inspector heading into the No.6 entry he turned around. /d.;
Tr. 23-24, 40-41 . Wethington then walked back to the working face and ordered Rowe to shut
down the continuous miner and leave to obtain additional material to extend the line curtain 20
feet. 17 FMSHRC at 1748; Tr. 116-18, 127, 198. Wethington also instructed Stevens to get a
ladder so that additional curtain material could be hung. Tr. 216. ·
Once the face.and the line curtain were in his view in the No. 6 entry, Inspector
Montgomery immediately noticed that the line curtain was much farther away from the face than

·1543

it should have been. 17FMSHRC at 1748; Tr. 24. Bruce Thompson, an AMAX section
supervisor who was accompanying Inspector Montgomery, also recognized that the curtain was
not in the proper position. Tr. 172; 182-83. Inspector Montgomery measured the distance from
the end of the unextended line curtain to the tail of the continuous mining machine at between 20
and 25 feet. 17 FMSHRC at 1748; Tr. 24. As the continuous miner was approximately 35 feet
long, that meant that the end of the curtain was 55 to 60 feet from the face, rather than within 40
feet, as required by AMAX's ventilation plan. 17 FMSHRC at 1748; Tr. 26-28, 81-82, 220.
Inspector Montgomery cited AMAX for a significant and substantial ("S&S"'Y violation
of30 C.F.R. § 75.370(a)(l) due to an unwarrantable failure to comply with the requirements of
its ventilation plan. 17 FMSHRC at 1748. The unwarrantable failure designation was based on
Inspector Montgomery's belief that Wethington was present for at least one load of coal being
loaded onto a ram car while the line curtain out of place, and that, until he saw Inspector
Montgomery, Wethington did not intend to correct the problem. Tr. 24, 40-41, 73.
AMAX conceded that it violated the Mine Act, but contested the S&$ and unwarrantable
failure designations. 17 FMSHRC at 1748. The judge foun~ the violation to be non-S&S . /d. at
1753.
On the unwarrantable failure issue, the judge credited the account of ram car operator
Scott, who testified foreman Wethington was in the No.6 entry for approximately five minutes,
over that of Wethington, who claimed that he was in the No. 6 entry for only one minute before
starting to leave again. ld. at 1750 & n.2; Tr. at l I 6. The judge also found the violation to be an
obvious one, on the basis of the testimony of AMAX section supervisor Thompson that, when he
accompanied Inspector Montgomery into the No.6 entry, he immediately recognized that the
location of the line curtain was in violation of the Wabash Mine ventilation plan. ld. at 1751. In
addition, the judge inferred that Wethington's "about-face" upon seeing Inspector Montgomery
was precipitated by (1) Wethington's knowledge that the line curtain's location violated the
ventilation plan, and (2) Wethington' s belief that Inspector Montgomery would immediately
notice it. Jd. Concluding that Wethington was aware that the line curtain was not close enough
to the face before he saw Inspector Montgomery, the judge held that "(s]ince Wethington knew
that the violation existed and ignored it, his conduct is sufficiently aggravated to constitute 'an
'unwarrantable failure."' Jd. 4

3

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C.
§ 814(d), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a ... mine safety or health hazard."
4

After trial but before the issuance of the judge's decision, a civil penalty proceeding
commenced against Wethington under section 1lO(c) of the Mine Act. Over Wethington's
objections, the same judge granted the Secretary's motion to stay that proceeding until the
Commission ruled on the instant appeal. ·18 ·FMSHRC 467 (March 1996) (ALJ). In that
decision, the judge held that he would not permit Wethington to relitigate in the section 11 0(c)

1544

II.
Disposition
AMAX claims that it was improper for the judge to credit the testimony of ram car driver
Scott over foreman Wethington regarding the amount oftime that Wethington was in the No.6
entry, in light of Scott's bias against AMAX and the consistency of the testimony of Wethington
and miner Stevens. A. Br. at 13 & n.3. AMAX also contends that the judge's inference that
Wethington knew of the violation at the time he saw Inspector Montgomery was neither
reasonable nor sufficiently supported by the grounds cited. A. Br. at 12-17. AMAX states that
application ofthe proper criteria and relevant precedent leads to the conclusion that the conduct
at issue was not unwarrantable (A. Br. at 6-1 0), and that in reaching the opposite conclusion, the
judge erred by applying an improper "should have known" test, relying on knowledge of the
existence of a condition as the sole basis for his conclusion that aggravated conduct had
occurred, and failing to evaluate all of the appropriate criteria. A. Br. at 17-20. The Secretary
responds that the judge's finding of unwarrantable failure is supported by substantial evidence
that Wethington's conduct was intentionaL in that Wethington knew of the violative condition
and intentionally ignored it until he encountered Inspl!ctor Montgomery. S. Br. at 6-10.
According to the Secretary, when n1isconduct is found to have been intentionaL it is immaterial
that the judge failed to consider other factors which also may be relevant to unwarrantable failure
determinations. S. Br. at 10-11.
Chairman Jordan and Commissioner Marks would affirm the judge's decision.
Commissioners Riley and Verheggen would reverse the judge's decision. Under Pennsylvania
Electric Co., 12 FMSHRC 1562, 1563-65 (August 1990), a.ff'd on other grounds, 969 F.2d'1501
(3d Cir. 1992), the effect of the split decision is to allow the judge' s decision to stand as if
'
affirmed.

III.
Separate Opinions of the Commissioners
Chairman Jordan and Commissioner Marks, in favor of affirming the decision of the
administrative law judge:
For the reasons that follow, we conclude that foreman Wethington's conduct was
aggravated and therefore the judge properly determined that the violation was unwarrantable.
The judge held that "[s]ince Wethington knew that the violation existed and ignored it,
his conduct is sufficiently aggravated to constitute an 'unwarrantable failure.'" 17 FMSHRC at
1751 (citing Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987)). In

proceeding the issue of his knowledge ofthe violation. /d. at 468-70.

1545

order to determine the correctness of the judge's ruling, we must address the foll owing two
issues. First, is there substantial evidence in the record to support the determination that
Wethington was aware of the violation and yet intentionally chose to.ignore it? Second, does a
foreman who intentionally ignores a violation engage in "aggravated conduct," even though the
violation is expected to be of short duration and poses low risk? 5
In resolving the first question, we conclude that substantial evidence supports the judge's
conclusion that Wethington was aware of the violative condition in the subject No.6 entry, and
that he intentionally failed to order the advancement of the line curtain. The judge based his
determination on three factors. First he found that Wethington was in the No.6 entry for five
minutes, instead of for only the one minute alleged in Wethington's version of events. In making
this finding, the judge credited ram car driver Scott·s testimony over Wethington's testimony. 17
FMSHRC at 1750 n.2. He found Scott to be the more disinterested witness of the two and noted
that Scott appeared to have a recollection of the events equal or superior to that of Wethington.
!d. Amax urges the Commission to overturn this credibility determination, contending that
Wethington's testimony on this point was supported by the testimony of Stevens (a miner helper
present in the entry), and suggesting that Scott's testimony established that he had a reason for
bias against AMAX. A. Br. at 13 n.3.
We have examined Stevens' testimony and do not agree that it is more consistent with
Wethington's testimony than it is with Scott's testimony regarding the length of time Wethington
was present in the No. 6 entry.6 We have also examined the testimony which Amax suggests
demonstrates Scott's bias and conclude that this testimony is also insufticient to disturb the
judge's credibility resolution. It is well established that "a judge's credibility determinations are
not to be overturned lightly and are entitled to great weight." In re: Contests of Respirable" Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1878 (November 1995), appeal docketed sub
nom., Secretary ofLabor v. Keystone Coal Mining Corp., No. 95-1619 (D.C. Cir. Dec. 28, 1995).
Our review of the testimony of both Scott and Wethington confirms the judge's
conclusion that Scott's recollection of the events was as good as, if not better than, that of
Wethington. Scott testified that he saw Wethington in the No.6 entry on consecutive ram car
trips Scott made that were approximately five minutes apart. 17 FMSHRC at 1750 n.2; Tr. 95,

5

The ALJ determined the violation to be non-S&S and the Secretary did not appeal that

ruling.
6

Contrary to AMAX's claim (A. Br. at 13 n.3), Stevens did not testify that Wethington
was in the entry for only the time it took to load one or two ram cars. Rather, in answering a
question regarding how long Wethington was "over there," Stevens stated for "one or two" ram
cars. Tr. 215. From the context of the questioning, Stevens testimony more likely referred to the
amount of time Wethington spent speaking to Stevens than the amount of time Wethington was
in the No.6 entry. Neither Stevens nor Rowe testified that either had noticed Wethington
returning to the No. 6 entry or when he began to again leave.

1546

97-98, 100, 106, 11'6. Thus, we conclude that the judge did not abuse his discretion in crediting
this testimony, and that substantial evidence supports the judge's finding that Wethington was ~n
the No. 6 entry for approximately five minutes.
The second factor supporting the judge's inference of Wethington's knowledge was the
obvious nature of the violation. Although Wethington maintained that he did not notice the
position of the line curtain, Amax section supervisor Armstrong testified that the violative
condition was immediate~y obvious once the working face was in view. 17 FMSHRC at 1751.
The third and by far the most compelling basis supporting the inference that Wethington
had prior knowledge of the violation was Wethington's conduct when he saw the inspector
approaching. At that time he made an "about-face," returned to the subject entry, and
immediately directed the crew to advance the line curtain as required by law. Jd. at 1750.
Amax takes issue with the inference the judge drew from Wethington 's "about-face," and
his immediate decision to advance the line curtain once Wethington realized that Inspector
Montgomery was about to inspect the No.6 entry. Although Wethington testified that he did not
notice that the line curtain was too far back when he was first in the No.6 entry, the judge
concluded Wethington was unlikely to react in such a rapid fashion if he was not previously
aware of any violations there. ld. at 1750-51.
In considering the evidentiary effect of inferences, the Commission has held that judges
may draw inferences from record facts so long as those inferences are "inherently ~easonable and
there lexists] a rational connection between the evidentiary facts and the ultimate fact inferred."
Garden Creek Pocahontas, 11 FMSHRC 2148, 2153 (November 1989). While it is possible that
other inferences could have been drawn from Wethington's actions, it is for the trier of fact to
decide between reasonable inferences, and it is not necessary that the inference drawn by the
judge be more likely to be correct than other permissible inferences. See generally 9A Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2528 (2d ed. 1995).
Accordingly, we conclude that the judge's inference was reasonable and should not be disturbed
by the Commission.
Based on the finding that Wethington was in the No.6 entry for five minutes,
Armstrong's testimony regarding the obviousness of the violative condition, and the inference
the judge drew from Wethington's "about-face," the judge concluded that Wethington knew that
the line curtain had not been extended as the ventilation plan required. 17 FMSHRC at 1750-51.
We agree and conclude that the facts as found by the judge provide substantial evidence that
Wethington knew of the violative condition.
The remaining issue is whether Wethington's conduct was aggravated and therefore
unwarrantable. For the following reasons we affirm the judge's finding ofunwarrantability.

1547

In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission explained
·
that unwarrantable failure should not be equated with ordinary negligence. It requires
·'aggravated" conduct resulting from more than "inadvertence," '~thoughtlessness" or
"inattention." Jd. at 200 I . In Emery the Commission referred to unwarrantable failure in terms
such as "indifference," " willful intent," "serio~s lack of reasonable care" and "knowing
·
violation." ld. at 2003.
Our colleagues claim that under Virginia Crews Coal Co., 15 FMSHRC 2103 (October
1993), a foreman's knowledge of a vioiatioh is insufficient to establish aggravated conduct. Slip
op. at 10. They contend further that the limited duration and low risk posed by the line curtain
violation preclude a finding of aggravated conduct in this case. ld. at 10-11. We disagree.
Unlike our colleagues, we do not find Virginia .Crews tp be dispositive of this issue given the
vast difference in circumstances presented in this case.
In Vhxinia Crews, the inspector designated a roof control violation as unwarrantable even
though there was no direct evidence that anyone, other than the preshift examiner, had observed
the violation. 15 FMSHRC at 2105. Moreover, the foreman had received the preshift
examiner' s report only an hour an·d a half before the inspector's visit, and '"[n]o activity occurred
in the cited area during that period." Id. at 21 06. Under these circumstances, the Contmission
declined to uphold the unwarrantable failure designation because "the1:e was no credible
evidence to establish that [Virginia Crew::,) delibera_te!y and consciouslyfailed to act or engaged
in conduct which one may reasonably conclude was aggravated." Jd. at'2l 07 (emphasis added).
The short time between the examiner's report and the .inspector's visit, as well as the lack of
mining activity during that time, precluded the foreman's behavior from being considered
·'aggravated conduct. " 7
In stark contrast to Virginia Crews, the judge in this case found that credible evidence
established that Amax, through its foreman Wethington, not only knew of the existence of the
misplaced curtain but also decided to ignore the violation and let mining continue without
correcting the violation. Wethington claimed his failure to order the line curtain moved resulted
from inadvertence or inattention, but this contention was rejected by thejudge, ~ho concluded·
that Wethington was aware of the violative condition and chose to ignore it until he saw the
7

It is worth noting, therefore, that the statement in Virginia Crews regarding the
insufficiency of a "knew or should have known" test is actually dicta since there was no evidence
to show that the foreman whose conduct was under review either knew or should have known
about the violation prior to receiving the preshift examiner' s report. In Virginia Crews the
Commission was simply restating the fundamental principle of Emery that "a breach of a duty to
know_is not necessarily an unwarrantable failure." ld. at 2107. Indeed, Virginia Crews generally
has been cited for the proposition that a "should have known" or "had reason to know" standard
is insufficient to prove unwarrantability. See Peabody Coal Co., 18 FMSHRC 494,498 n. 7
(April1996); Wyoming Fuels Co., 16 FMSHRC 1618, 1628 (August 1994); Cyprus Plateau
Mining Corp., 16 FMSHRC 1610, 1614 (August 1994).

1548

MSHA inspector. Wethington's behavior thus can be accurately characterized as "intentional
misconduct," which the Commission has concluded "is·a form of unwarrantable failure for
purposes of the Mine Act." Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February
1991).
The Commission's precedent on such intentional misconduct, regardless of the
violation's duration or risk, is clear and consistent. In Youghiogheny, the Commission upheld an
unwarrantable failure determination because the foreman deliberately violated the roof control
plan, even though the C9mmission also concluded that the violation was not S.&S, as it posed
minimal risk. 9 FMSHRC at 2011,2013. hi New Warwick Mining Co .. 18 FMSHRC 1365
(August 1996), the Commission concluded that a violation resulting from deliberate action was
unwarrantable, notwithstanding that ·the inspector had not even designated the violation as S&S.
ln our decision, we relied upon neither the duration of the violation nor the risk it posed. 8 !d. at
13 70-71. See also Enlow Fork Mining Co., I 9 FMSHRC 5, 11-12, I 6-17 (January 1997); Ne1i'
Warwick Mining Co., 18 FMSHRC 1568, 1572-74 (September l996) (holding in both cases that
accumulations violations were unwarrantable, although not S&S). Moreover, in some cases
where a violation has been found S&S, the Commission has based its unwarrantable failure
determin.ation on the knowing, indifferent or willful conduct of the supervisory agent, rather than
on the gravity of the violation. See Ambrosia Coal & Construction Co .. 18 FMSHRC 1552,
1562 (September 1996); S&H Mining, Inc. 15 FMSHRC 956, 960 (June 1993).9
Accordingly, our colleagues' opinion, focusing as it does on the limited duration and
minimal danger posed by the line cm1ain violation, 10 not only is inconsistent with precedent but

8

The case law thus establishes that while the ·commission has identified various factors
in determining unwarrantability - such as the extent of a violative condition, the length of time
that it existed, whether.the violation was obvious, and whether the operator had been placed on
notice that greater efforts are necessary for compliance - the Commission only uses those
·
factors when the operator's cognizance of the violative condition rema~ns at issue. Where, as
here, that issue has been decided, the factors are irrelevant in determ_ining unwarrantability.
9

It bears noting that section I 04(d) of the Mine Act predicates the issuance of
withdrawal orders upon successive unwarrantable failure violations, regardless of whether those
violations are also deemed to be significant and substantial. See, e.g., lf!.l 'I Union, United Mine
Workers ofAmerica v. Kleppe, 532 F.2d 1403, 1407 (D.C. Cir. 1976).
10

Relying on a stipulation by the Secretary at the outset of the hearing, our colleagues
view Amax's "good faith in quickly abating the violation" as an additional factor "militating
against an unwarrantable failure finding." Slip. op. at 11. In light of the judge'·s subsequent
finding that Wethington commenced abatement efforts only when faced with imminent discovery
by the inspector, we cannot consider those efforts as militating against an unwarrantable failure
finding. See Enlow Fork Mining Co., 19 FMSHRC 5, 17 (January 1997) ("(p]ost-citation efforts
are not relevant to the determination whether the operator has engaged in aggravated conduct in

1549

also troubling because it conceivably could be read as excusing a foreman's decision to ignore a
violation unless the condition poses a significant risk to miners. Such an approach can have
disastrous consequences because it ignores the dangerous environment created when
management appears to condone violative conduct by employees. Wethington's failure to make
any reference to the line curtain as he instructed Stevens on the next task could be viewed by the
employees as tacit approval to cut corners.
Miners who decide ~o ignore a safety requirement may miscalculate the risk involved.
Although the area of the mine involved in this proceeding had not experienced methane in any
significant amount, methane is unpredictable. The mine itself was a gassy mine subject to 5-day
spot checks by MSHA. Indeed, eight or nine months prior to the instant citation, Amax had to
discontinue mining in another area of the mine because methane kept exceeding the 1% level. 17
FMSHRC at 1752. These facts underscore the point that these miners might not be as lucky the
next time they either deliberately or inadvertently fail to comply with a ventilation requirement.
For the foregoing reasons, we conclude that the judge's determination that the violation
was unwarrantable should be affirmed.

~..
Marc Lincoln Marks, Commissioner

allowing the violative condition to occur").

1550

Commissi<?ners Riley and Verheggen, in favor of reversing the decision of the
administrative law judge:
In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id.
at 2001. Unwarrantable failure is characterized by such conduct as ''reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." /d. at 2002-04;
Rochester & Pillsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991) ("R&P"); see also
Buck Creek Coal, Inc. v.. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's
unwarrantable failure test). The Commission examines various factors in determining whether a
violation is unwarrantable, Including the extent of the violative condition, the length oftime that
it existed, whether the violation was obvious, whether the operator has been placed on notice that
greater efforts are necessary for compliance, and the operator's efforts in abating the violative
condition. Mullins &.Sons Coal Co., 16 FMSHRC 192, 195 (February 1994); Peahody Coal
Co .. 14 FMSHRC 1258, 1261 (August 1992); QuinlandCoals. Inc.• 10 FMSHRC 705,709 (June
1988); Kit! Energy Corp .. 6 FMSHRC I 596, 1603 (July I 984). The Commission also takes into
account the degree of danger posed by a violation and whether supervisory personnel were
present when the violation took place. Midwest Material Cu .. 19 FMSHRC 30, 34-35 (January
I 997) (citing cases).
In finding unwarrantable failure, the judge simply held that "[s]ince Wethington knew
that the violation existed and ignored it, his conduct is sufficiently aggravated to constitute an
'~.mwarrantable failure.'" 17 FMSHRC at 1751 (citing Youghiogheny & Ohio Coal Co., 9
FMSHRC 2107, 2011 (December 1987)). Regardless of whether or not substantial evidence
supports the judge's factual finding regarding Wethington's state of mind, we believe that,'
because the judge took only Wethington's knowledge of the violation into account in finding
unwarrantable failure, he failed to apply the proper test for unwarrantable failure and thus
committed reversible error.
In Virginia Crews Coal Co., 15 FMSHRC 2103 (October 1993), the Commission held
that knowledge of a violation, by itself, is insufficient to establish aggravated conduct. In that
case, the Commission explicitly rejected the notion that actual or constructive knowledge alone
establishes unwarrantable failure, since such an approach would make unwarrantable failure
indistinguishable from ordinary negligence. Id. at 2107. As the Commission has long regarded
unwarrantable failure as something more than ordinary negligence (see Emery Mining Corp., 9
FMSHRC at 2001), the judge's decision cannot be upheld. 11

11

Relying on R&P, the Secretary argues that the judge's decision should be upheld on
the ground that Wethington's conduct in ignoring the violation was "intentional." S. Br. at 5-6.
R&P, involving deliberate misconduct in the form of falsification of weekly examination records
(13 FMSHRC at 190-92), is readily distinguishable from the omission at the center of this case.
We also note that neither the trial record nor the Secretary's post-hearing brief indicates that the
Secretary took the position below that Wethington had actual knowledge of the violation.

1551

Consideration.ofthe following relevant factors leads us to conclude that the record .
supports only one determination: that AMAX's violation of its ventilation plan was not the
result of AMAX' s unwarrantable failure. First, it is not disputed that AMAX wa.s in violation of
its ventilation plan for a relatively short period of time. Approximately 15 minutes elapsed
between the time the line curtain should have been extended and the time the continuous miner
was shut down so that it could be extended. Tr. 201. Even the judge described the violation as
one of "rather short duration" (17 FMSHRC at 1753), though he failed to account for it as a
factor in his unwarrantable failure analysis.
The judge' s factual finqings in favor of the Secretary' s position also support that
. characterization. The judge found that Wethington was present for no more than five minutes of
the time period in which the curtain was out of place. /d. at 1750 n.2. Moreover, as it is also
clear that AMAX's operations in the Nu. 6 entry would have been complete in a matter of
minutes (!d. at 1749; Tr. I 00, 106, I 14-15, 202, 224), it would not be fair to assume that only the
presence of Inspector Montgomery prevented the violative condition from continuing for a much
longer period of time.
Another factor militating against an unwarrantable failure finding is AMAX' s good faith
in quickly abating the violation. That AMAX demonstrated good faith in abating the citation
was stipulated by the Secretary at trial. Tr. 7. The Commission has been reluctant to discount
stipulations entered into by litigants. See Melliki Coal Co11J., 13 FMSHRC 760, 772 (May
1991 ). Moreover, while post-citation abatement efforts are generally not relevant to a finding of
unwarrantable failure, in this case AMAX started abating the violation betore the citation was
issued. 17 FMSHRC at 1748. In addition, the Secretary has pointed to no evidence of previous
violations of this type by AMAX. While at trial the Secretary submitted a printout of previous
citations at the Wabash Mine (G. Ex. 1), she did not state whether any of the violations for which
·AMAX was cited involved a ventilation plan provision, much less a line curtain placement
violation.
The final factor that persuades us that an unwarrantable failure finding is uncalled for is
the low degree of danger posed by the violation under the circumstances. The judge held that the
violation was non-S&S, finding that an ignition or explosion was unlikely to occur because of the
failure to extend the line curtain. 17 FMSHRC at 1753. The Secretary did not appeal this
conclusion.
In finding the violation non-S&S, the judge took into account that the section of the
Wabash mine where the No.6 entry is located, 2WIMWS, does not have a history of high
methane liberation. !d. The judge also considered that the highest reading in the No. 6 entry
from the continuous miner's methane monitor was 0.6 percent, and that the great majority of
preshift examination methane level measurements in 2WIMWS taken around the time of the
violation were at or below 0.3 percent. /d. In addition, methane level readings of zero were
· .. taken immediately after Inspector Montgomery's discovery ofth~ ventilation plan violation. Tr.

1552

·'.

89, 185. Thus, all evidence of2W/MWS methane levels established that AMAX was in
confonnance with MSHA requirements.
The only factors which we believe could possibly support a finding of unwarrantable
failure are the obviousness of the violation, as was impliedly found by the judge, and
Wethington' s status as a foreman. 12 Under Commission precedent, however, these two factors,
by themselves, have not been sufficient to establish unwarrantable failure. In Virginia Crews,
knowledge of a roof control plan violation, including by the responsible foreman, was not
sufficient to establish unwarrantable failure. 15 FMSHRC at 21 03-07. The Commission so held
even though the judge had found the vio.lation S&S and that it had been noted during a pre-shift
examination conducted at least 30 minutes prior to its discovery by the MSHA inspector. /d. at
2 I 06. As the instant violation was found to be not S&S and to have existed for an even shorter
period of time, Virginia Crews suggests that an unwarrantable failure finding is inappropriate in
·
this case.
While the Comrnission has found unwarrantable failure where a foreman knew of a
violation but failed to appropriately remedy the problem, such cases involved violations which
were found to pose a high degree of danger under the· circumstances. See Cypress Plaleau
Mining Corp., 16 FMSHRC 1604 (August 1994) (knowing operation of shuttle car with
inoperable brakes S&S violation and unwarrantable); c:'ypress Plaleau Mining CoiJJ., 16
FMSHRC 1610 (August 1994) (ordering miners to work in intersection· under roof known to be
unsupported in mine with history of roof falls S&S violation and unwarrantable). This is not
such a case.
Accordingly, we would reverse the judge's unwarrantable failure finding and remarid for
assessment of an appropriate civil penalty in light of our decision.

().AM..-.r
tl A

c

• .

"A.L r. ~ 7!=Theodore F. Verheggen, Commissioner

12

In detennining unwarrantable failure, the Commission has held foremen to high
standard of care. See, e.g. , Youghiogheny, 9 FMSHRC at 2011 (quoting Wilmot Mining Co., 9
FMSHRC 684,688 (Apnl1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (November
1995).

lS53

Distribution

Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
R. Henry Moore, Esq.
Buchanan Ingersoll
301 Grant Street
201h Floor
Pittsburgh, PA 15219
Administrative Law Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
(no longer at the Commission)

jhe

1554

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FA.X 303-844-5268

SfP 2 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 96-272
A.C. No. 05-04461-03528

v.
New Elk Preparation Plant
BASIN RESOURCES, INC.,
Respondent

DECISION
Appearances:

Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for Petitioner;
Andrew Volin, Esq., Shennan & Howard, Denver, Colorado,
for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Adminis~ration ("MSHA"), against Basin
Resources, Inc. ("Basin Resources"), pursuant to sections JP5 and 11 0 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815 and 820. ·The petition alleges two violations of
the Secretary's safety regulations. The hearing in this and nine other Basin Resources cases was
held in Denver, Colorado, on August 5 - 6, 1997.
The Secretary filed a motion to amend the petition for penalty to add Entech, Inc., and
Montana Power Company as respondents in these and other Basin Resources cases. For the
reasons set forth in Basin Resources, Inc., 19 FMSHRC 699, 699-704 (April 1997), the
Secretary's motion is denied.
:::

At the hearing, Basin Resources stated that it was not contesting the fact of violation in
these citations or the other determinations made by the inspector in the citations.. (Tr. 579-80).
It only contests the amount of the penalty proposed by the Secretary for each of the two citations.
It contends that the Secretary's penalties are too high taking into consideration the civil penalty
criteria set forth in section 11 O(i) of the Mine Act.

1555

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Citation No. 4057358, issued on December 29, 1995, alleges a violation of 30 C.F .R.
§ 77.502; The citation states that a power cord was damaged, but that an injury was unlikely.
The inspector determined that the violation was not of a significant and substantial nature
("S&S") and that Basin Resources' negligence was moderate. The Secretary proposes a penalty
of $288.00 for the violation.
Citation No. 4057359, issued on December 29, 1995, alleges a violation of30 C.F.R.
§ 77.205(b). The citation states that safe access was not provided for a480-volt control box
because mud and refuse was allowed to accumulate around the box, but that an injury was
unlikely. The inspector determined that the violation was not S&S and that Basin Resources'
negligence was moderate. The Secretary proposes a penalty of $288.00 for the violation.
Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. I find that about 102 citations were issued at the New Elk Preparation
Plant in the 24 months preceding December 29, 1995. (Exs. P-1 & P-2). I also find that Basin
Resources was a medium to large mine operator. (Ex. J-1). Basin Resources shut down its
Golden Eagle Mine and New Elk Preparation Plant at the end of December 1995. The mine and
preparation plant are no longer producing coal. Basin Resources has been unable to sell the
Golden Eagle Mine. Its unaudited balance sheet for April 30, 1996, shows that shareholders'
equity was minus about 23 million dollars and its income statement for the year ending April 30,
1995, shows a net loss of$325,000. 18 FMSHRC 1846, 1847 (October 1996). I have taken
Basin Resources' financial condition into consideration and find that the civil penalty assessed in
this decision would not have affected its ability to continue in business. Basin Resources
demonstrated good faith in abating all of the violations. (Ex. J-1). Both violations were serious.
Based on the penalty criteria, I find that a penalty of $175.00 for each citation is appropriate.

II. ORDER

The Secretary's motion to amend the petition for a.S~ssment of penalty is DENIED, the
citations listed above are hereby AFFIRMED, and Basin Resources, Inc., is ORDERED TO
PAY the Secretary of Labor the sum of$350.00 within 40 days of the date.of this decision.

Richard W. Manning
Administrative Law Judge

1556

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

SEP

4 1997

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

CIVIL PENALTY PROCEEDING
Docket No. WEV A 97-11
A. C. No. 46-06750-03578
Peats Branch No. 3 Mine

HOBET MINING, INC.,
Respondent
DECISION
Appearances: Pamela Silvennan, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Secretary;
William C. Miller II, Esq., Jackson and Kelly, Charleston, West Virginia, for
the Respondent.
Before: ·

Judge Melick

This case is before me upon the petition for civil penalty filed by the Secretary of Labor
against Hobet Mining, Inc. (Hobet) pursuant to section I05(d) ofthe Federal Mine Safety and
Health Act of I 977, 30 U .S.C. § 801 ~ gg,_, the "Act" seeking a civil penalty of $2,072 for one
violation of the mandatory standard at 30 C.F.R. § 77.409.
The citation at bar, Citation No. 4401472, alleges as follows:
The model 8,200 Marrion [sic] dragline co No. 113417 was being operated
in the presence of persons (rock truck drivers) exposed to hazard from its
operations in that the boom and bucket of said dragline was being operated,
swung, loaded, and empty over top of the trucks and drivers hauling spoil out of
No. 1 shovel pit. This citation was issued i~ conjunction with imminent danger
order 4401471 therefore no abatement date or time was set.
The cited standard, 30 C.F.R. § 77.409(a), provides in relevant part that "shovels,
draglines, and tractors shall not be operated in the presence of any person exposed to a hazard
from its operation ... "
Experienced Mine Safety and Health Administration (MSHA) Inspector Ernest
Thompson was assigned to the subject Peats Branch No. 3 Mine. The operation involves the

1557

removal of mountain overburden to reach multiple coal seams. End loaders, shovels, and
draglines are utilized in the process. Inspector Thompson arrived at the mine around 8:00a.m.,
on the morning of September 4, 1996. Commencing his inspection he was driving on the haul ·
road toward the pit about 200 to 300 yards behind union representative Danny Spencer and
West Virginia State Mine Inspector Randall Bailey. At a point where the haul road narrowed
and began a curve and about 50 feet away, Thompson observed the dragline bucket cross over
the haul road 30 to 40 feet above. The dragline was digging on the left, turning 180 degrees and
dropping spoil material.
The bucket also passed directly over a haulage truck at a time when Thompson was
100 to 150 yards away. State Mine Inspector Bailey agreed with Thompson that the bucket had
passed right over the truck. Thompson therefore asked Bailey to bring the pit foreman to the
scene. When pit foreman Jay Curry arrived, Thompson told him to have the bucket swing over
the curve. Curry made the request by radio but was told by the dragline operator that he had lost
power. Curry thereupon drove up to the dragline. Within 15 or 20 minutes Thompson saw the
dragline tramming back from the road. Thompson subsequently asked Curry why he did not
have the bucket dropped as was requested and Curry responded that he "didn't want to lose any ·
more time, so he decided to move the dragline" (Tr. 32).
According to Thompson, the subject dragline had a 72 cubic yard bucket capable of
holding approximately 100 tons of material. Thompson estimated the bucket to be 13 to 14 feet
across at the lip, about 15 to 16 feet high and 14 to 15 feet deep. The boom was about 320 feet
long.
Thompson opined that the violation was "significant and substantial" because the bucket
was being swung over an occupied haul truck and there was a "possibility" of a rock dropping on
the truck, a piece of the bucket breaking off, the bucket itself falling or the brakes failing. He
noted that when the bucket was full1 loose material would fall off. He had also seen loose rock
riding in the rigging of the dragline. He further noted that the buckets get "beat up," the teeth get
broken and the spreader bar can break.. Hoist ropes can also break. or unravel with the potential
of causing se.rious injuries to a haul truck driver. Thompson also opined that the dragline
operator could accidently pull the wrong lever and inadvertently drop the boom and/or load onto
a haulage truck. Thompson opined that it was reasonably likely for ~ accident to occur and for
the resulting injuries to be fatal. Thompson also concluded that the opera~or was moderately
negligent because the foreman "should have known" of the violative practice.
Randall Bailey, a surface mine inspector for the West Viiginia Office ofMiners.Health
Safety and Training, corroborated the testimony of Thompson in significant respects. He too
observed the dragline bucket swing over the haulage road and, more specifically, observed the
bucket directly over the haulage truck. Bailey also heard Thompson te~l pit foreman Curry to
lower the bucket to the road to determine its reach. This was not done and, after Curry left to go
to the dragline, Bailey observed that its lights went out. Driving up to the dragline he observed
that it had been moved. Bailey cited the operator for this incident for a violation of

1558

West Virginia law (Government Exhibit No. 5) and the operator paid the violation without
contesting it. ·
Based on the credible testimony of both the Federal and state mine inspectors, I conclude
that the violation is proven as charged and was "significant and substantial." A violation is
•significant and substantial" if, based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
1981 ). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory standard is significant
and substantial under National Gypsum the Secretary 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 violations, (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
reasonable serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir.
1988), afrg 9 FMSHRC 2015,2021 (December 1987) (approving Mathies
·criteria).
The third element of the Mathies formula requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will result in an
injury ( U. S Steel Mining Co.), 6FMSHRC 1834, 1836 (August 1984), and also
that the likelihood of injury be evaluated in terms of continued normal mining
operations. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); See
also Halfway, Inc. , 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal
Co., 13 FMSHRC 912, 916-17 (June 1991).
In reaching these conclusions I have not disregarded the testimony of pit foreman
William Curry that he had earlier had the dragline operator swing the bucket and drop it in the
direction of the haulage road. However, he did not have the bucket dropped at the point where
the inspectors later requested him to do so. Curry further acknowledged that following Inspector
Thompson's specific request to drop the bucket where requested, he decided to move the
dragline. His explanation for failing to comply with the request strongly suggests that he knew
of the violative practice (Tr. 180-182).
I have also not disregarded the testimony of dragline operator Joseph Dever, that early in
the shift he had cast the bucket toward the road but found that it did not reach. I conclude
however that he must not have cast the bucket in the direction in which inspectors had observed

1559

the bucket swinging over the road. Under aU the circumstances I can give Dever's testimony but
little weight.

I must also conclude based on the credible observations of the two inspectors that the
points at which Hobert's surveyor, Gary Joe Lane, was shown by Foreman Curry to begin his
measurements must not have been the actual location of the dragline at the time of the violation.
Accordingly, the testimony of Lane is likewise entitled to but little weight.
I find that the cited condition was obvious and therefore should have been observed by
responsible management. I therefore accept the Secretary's contention that the operator is
chargeable with moderate negligence. Considering all the criteria under section llO(i) of the
Act, I find that a civil penalty of $2,000 is appropriate for the violation herein.

ORDER

L,

Hobet Mining, Inc. is DIRECTED to pay a civil penalty of $2,000 within 30 days of the
date of this decision.

./

J

/~

l

~

tb!~

:\. 1AA-"

;·

1

cjary Mehck

/

Administtive Law

dge

""' v v v

\.____

Distribution:
Pamela Silverman, Esq., Office of the Solicitor, U.S. Department of Labor, 2015 Wilson
Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail)
William C. Miller II, Esq., Jackson & Kelly, 1600 Laidley Tower, P. 0. Box 553, Charleston,
WV 25322 (Certified Mail)
dcp

1560

FEDERAL MINE SAFETY AND HEALm REVIEW COMMISSION
1730 K STREET, N.W. 6fB FLOOR
WASIUNGTON D.C. 20006-3868
September 5, 1997

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATIO~ (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 97-17-M
A.C. No. 19-00364-05513

v
TRESCA BROTHERS
SAND & GRAVEL, INC.,
Respondent

Tresca Bros. Sand & Gravel

ORDER VACATING DEFAULT
ORDER TO REOPEN
DECISION APPROVING SETTLEMENT
OBDERIOPAY
ORDER OF DISMISSAL

Before:

Judge Merlin

This case is before me pursuant to the Order of the Commission dated September 2, 1997.
On March 24, 1997, I issued a show cause order giving the operator thirty days to
respond. On May 17, 1997, an order of default was issued directing the operator to pay the
proposed penalties in this case. On July I, 1997, the Solicitor filed a motion to approve
settlement. A review of Commission records indicates that the Solicitor telephoned my law clerk
on April22, 1997, advising that the matter had settled. The telephone call was however, not
noted in the file. I find the call constitutes a timely response to the show cause order and that the
default was issued in error. Accordingly, the case is reopened so that the settlement motion can
be considered.
The Solicitor in his settlement motion proposes a reduction in the penalties for Citation
Nos. 4569689 and 4569691 from $651 to $460. I have reviewed the documentation and
representations and conclude that the proffered settlements are appropriate under the criteria set
forth in section 11 O(i) of the Act.
With respect to the remaining violations, Citation Nos. 4569688, 4569690, 4569692,
4569698, and 4569699, the Solicitor advises that MSHA has vacated the violations and requests
that the penalties be dismissed.

1561.

Accordingly, it is ORDERED that the default dated May 19, 1997, be and is hereby
VACATED and the case REOPENED.
It is further ORDERED that the motion for approval of settlements be GRANTED, and
that the operator PAY a penalty of$460 within 30 days of the date of this order.
It is further ORDERED that the penalties for Citation Nos. 4569688, 4569690, 4569692,
4569698, and 4569699 be DISMISSED because MSHA has vacated the violations.

:

\

\
Paul Merlin
Chief Administrative Law Judge

Distribution: (Certified Mail)
Ralph R. Minichiello, Esq., Office of the Solicitor, U.S. Department of Labor, E-375, John F.
Kennedy Federal Bldg., Boston, MA 02203
John Tresca, President, Tresca Brothers Sand and Gravel Inc., P.O. Box 189, Millis, MA 02054

1562

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W. 6m FLOOR
WASHINGTON D.C. 20006-3868
Sep t ember 5, 1 997

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

CnnLPENALTYPROCEEDING
Docket No. YORK 97-25-M
A.C. No. 19-00364-05514

v

TRESCA BROTIIERS
SAND & GRAVEL, INC.,
Respondent

Tresca Bros. Sand & Gravel

ORDER VACATING DEFAULT
ORDER TO REOPEN
DECISION APPROVIISG SETTLEMENT
QRDERIOPAY
ORPER OF DISMISSAL

Before:

Judge Merlin

This case is before me pursuant to the Order of the Commission dated September 2, 1997.
On April 16, 1997, I issued a show cause order giving the operator thirty days to respond.
On June 19, 1997, an order of default was issued directing the operator to pay the proposed
penalties in this case. On July 1, 1997, the Solicitor filed a motion to approve settlement. A
review of Commission records indicates that the Solicitor telephoned my law clerk on April 22,
1997, advising that the matter had settled. The telephone call was however, not noted in the file.
I find the call constituted a timely response to the show cause order and that the default was
issued in error. Accordingly, the case is reopened so that the settlement motion can be
considered.
The Solicitor seeks a settlement for Citation No. 4569705, in the original amount of
$220. I have reviewed the documentation and representations and conclude that the proffered
settlement is appropriate under the criteria set forth in section ll O(i) of the Act.
With respect to the remaining violations, Citation Nos. 4569702, 4569703, and 4569704,
the Solicitor advises that MSHA has vacated the violations and requests that the penalties be
dismissed.

1563

Accordingly, it is ORDERED that the default dated June 19, 1997, be and is hereby
VACATED and the case REOPENED.
It is further ORDERED that the motion for approval of settlement for Citation No.
4569705 be GRANTED, and that the operator PAY a penalty of $220 within 30 days of the date
of this order.
It is further ORDERED that the penalties for Citation Nos. 4569702, 4569703, and
4569704 be DISMISSED because MSHA has vacated the violations.

Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Ralph R. Minichiello, Esq., Office of the Solicitor, U.S. Department of Labor, E-375, John F.
Kennedy Federal Bldg., Boston, MA 02203
John Tresca, President, Tresca Brothers Sand and Gravel Inc., P.O. Box 189, Millis, MA 02054

1564

FEDERAL .MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEYARD #280
DENVER, CO 80204-3582 ·
303-844-3577/FAX 303-844-5268

SEP 1 1 1997
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 96-25
A.C. No. 05-02820-03772

V.

Docket No. WEST 96-124
A.C. No. 05-02820-03777

BASIN RESOURCES, INC.,
Respondent

Docket No. WEST 96-158
A.C. No. 05-02820-03783
Golden Eagle Mine

DECISION

Appearances:

William W. Hulvey and Peter D. Campbell, Conference and Litigation
Representatives, Mine Safety and Health Administration, U.S. Department
ofLabor, Morgantown, West Virginia, and Edward Falkowski, Office of
the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;
Andrew Volin, Esq., Sherman & Howard, Denver, Colorado, for
Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of penalties filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Basin
Resources, Inc. ("Basin Resources"), pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977,30 U.S.C. § 815 and 820. The petitions allege 39 violations of
the Secretary's safety and health regulations. A hearing was held in Denver, Colorado. The
parties presented testimony and documentary evidence, and Basin Resources filed a post-hearing
brief.
The Secretary filed a motion to amend the petitions for penalty to add Entech, Inc., and
Montana Power Company as resp~ndents in these and other Basin Resources cases. For the
reasons set forth in Basin Resources, Inc., 19 FMSHRC 699,699-704 (April 1997), the
Secretary's motion is denied.

1565

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Docket No. WEST 96-25
1. Citation No. 4057791
On May 31, 1995, Inspector Jeffery Fleshman issued a section 104(a) citation alleging a
violation of30 C.F.R. § 75.370(a)(l). In the citation, the inspector alleged that the ventilation
plan was not being fo~lowed in that excessive air leakage, 44,743 cfm, was allowed to flow outby
between the airlock doors in entry No. 5 of the 3 north section between crosscut Nos. 22 and 24.
The citation states that the airlock doors were not being maintained in a workmanlike manner
because the bottom of the door was too short for the opening. He dete~ined that the violation
was not significant and substantial ("S&S") and that Basin Resources' negligence was moderate.
The Secretary proposes a penalty of $2,606 for the alleged violation.
Inspector Fleshman testified that the ventilation plan requires that all ventilating devices,
including doors, be installed in a workmanlike manner and maintained in a condition to serve the
purpose for which they were installed. (Tr. 14; Ex. G-1). He stated that an airlock door is
designed to allow equipment to pass through an area without short-circuiting the air courses. He
stated that at the airlock door in question, Basin Resources had cleaned the roadway underneath
the doors and failed to lower the skirting under the doors. (Tr. 15-16). He stated that there was
about six inches of clearance between the bottom of the skirt on each door and the mine floor.
He determined that about 44,700 cfm of air was passing between the airlock doors. Kay
Hallows, the former safety director for the mine, testified that the space under the doors was
created over time due to traffic through the doors and efforts to keep the area clean. (Tr. 258).
Basin Resources contends that it did not violate the ventilation plan because the
ventilation requirements in the section were still being met. I disagree. The Secretary is not
contending that insufficient air was reaching various areas in the section, but is arguing that the
doors were not being maintained in a workmanlike manner. Basin Resources' arguments relate
to the gravity of the violation, which the Secretary does not dispute. The Secretary agrees that
the violation was neither serious nor S&S and that the section had "plenty of air." (Tr. 32). I
find that the Secretary established a violation. A penalty of $200 is appropriate for this violation.
2. Citation No. 4057468
On June 20, 1995, Inspector Fleshman issued a section 104(a) citation alleging a violation
of30 C.F.R. § 75.370(a)(I). In the citation, the inspector alleged that the ventilation plan was
not being followed in that a Joy continuous mining machine was being operated on the 3 north
section with only I 0 of the 15 bottom head sprays present. He determined tha~ the violation was
not S&S and that Basin Resources' negligence was moderate. The Secretary proposes a penalty
of $903 for the alleged violation.

1566

Inspector Fleshman testified that the ventilation plan requires five sprays on each of three
blocks of bottom sprays. (Tr. 18; Ex. G-2). He stated that the cited continuous miner was
equipped with only two blocks of sprays on the bottom with five.sprays each. Thus, the
continuous miner was equipped with only 10 bottom sprays rather than 15. He also testified that
the citation was abated, not by adding five more sprays, but by changing the ventilation plan to
indicate that the continuous miner was required to have only ten sprays. (Tr. 41). The inspector
admitted that Basin Resources had contacted MSHA's ventilation group before he issued the
citation about amending the plan to provide for only ten sprays on the bottom of continuous
miners. (Tr. 42). Inspector Fleshman testified that he issued the citation because he was directed
to do so by his field office supervisor. (Tr. 41 ). He indicated that the difference between the
plan and the continuous miner was a "typical oversight" that is generally corrected by amending
the plan. (Tr. 42). Basin Resources' testimony is consistent with the inspector's.
I find that the Secretary established a violation, but that the violation was of a technical
nature only. The continuous miner was designed to have ten sprays on the bottom and neither
party considered that the design presented a safety or health hazard. I find that the violation was
not serious and that Basin Resources was not negligent. A penalty of $1 is appropriate.
3. Citation No. 4057472
On June 21, 1995, Inspector Fleshman issued a section I 04(a) citation alleging a violation
of30 C.F.R. § 77.400(c). In the citation, the inspector alleged that adequate guarding was not
provided in the main slope belt-transfer building where a person could come in contact with the
east side of the No.3 belt-drive pulley. The citation states that the distance between the p~ial
guard and the belt-drive pulley was 1.7 feet. He determined that the violation was S&S and that
Basin Resources' negligence was moderate. The Secretary proposes a penalty of$1,450 for the
alleged violation. The safety standard states, in part, that guards at conveyor-drive pulleys shall
extend a distance sufficient to prevent a person from reaching behind the guard and becoming
caught between the belt and the pulley.
Inspector Fleshman testified that Basin Resources had placed danger tape across the area.
(Tr. 46). He stated that the operator was using danger tape in lieu of guarding and that such tape
does not comply with the regulation. The guard was on the ground about four feet away. He
determined that the violation was S&S because there was a potential that someone would be
seriously injured by the violation. (Tr. 48-51 ).
Basin Resources argues that the danger tape satisfied the requirement of the standard and
that the standard provides an exception for testing . I reject these defenses. First, it is clear that
danger tape would not prevent anyone from "reaching behind" and "becoming caught between
the belt and the pulley." Second, there is no indication that testing was being performed at the
time the citation was issued. I hold that the testing exception in subsection (d) of the standard is,
in essence, an affirmative defense. The mine operator has the burden to come .forward with
evidence that testing was taking place because it woutd have greater access to such evidence.

1567

I also find that the violation was S&S. While the danger tape made it less likely that
anyone would purposefully reach around the guard and come in contact with the moving parts,
someone could trip or stumble while walking down the walkway that was a few feet" away. The
inspector testified that the pinch point would be "easy" to contact, if someone walking in the area
stumbled or fell. (Tr. 49). The unguarded area was within a few feet of a walkway. I credit his
testimony in this regard. The fact that he also stated that the condition was a "potential accident
waiting to happen" does not disprove the third element of the Commission's four part Mathies
S&S test, as contended by Basin Resources. A penalty of$1,000 is appropriate.
4. Other Citations.
Basin Resources also contested 14 other section 104(a) citations in this case. At the
hearing, Basin Resources agreed that it would not contest the fact of violation in these citations
or the other determinations made by the inspector in the citations. It only contests the penalties
proposed by the Secretary, which it contends are too high. Based on the description of the
violations in the citations, the inspectors' determinations with respect to gravity and negligence,
and the civil penalty criteria discussed below, I assess the penalties set forth in section III of this
decision.

B. Docket No. WEST 96-124
1. Citation No. 4058130
On August 15, Inspector Melvin Shiveley issued a section 104(a) citation alleging~
violation of30 C.F.R. § 75.333(c). In the citation, the inspector alleged that a man door in the 3
left section at crosscut No. I was not maintained to provide access through the door. The citation
states that an MSHA required report prepared by Basin Resources indicated that an employee
was injured when he tried to pass through the door because the high volume of air knocked him
off balance. He determined that the violation was S&S and was caused by Basin Resources'
moderate negligence. The Secretary proposes a penalty of $1,450 for the alleged violation.
Inspector Shiveley testified that it was difficult to open the door because of the high
volume of air pushing against the door. (Tr. 71). He stated that he did not go through the door
because the air could pull you through. He believed that if a miner let go of the door as he passed
through, the door could slam against him causing a serious injury. (Tr. 73). He also stated that
he discussed the condition with the miner who had been injured while traveling through the man
door. (Tr. 88).
Tom Sciacca, a former accident-prevention coordinator at the mine, testified that
Inspector Shiveley did not observe the cited condition prior to issuing the citation. (Tr. 228, 234;
Ex. R-H). He stated that the inspector handed him the citation on the surface before they went
underground. Mr. Hallows testified that the reported injury was the first and only injury that
occurred at the mine while a miner was passing through a man door. (Tr. 262).

1568

Inspector·Shiveley was not sure if he examined the door before issuing the citation. (Tr.
85, 87). He based the citation on his review of the injury report (MSHA Form 7001). The safety
standard provides, in part, that personnel doors "shall be of sufficient strength to serve their
intended purpose of maintaining separation and permitting travel between air courses...." I find
that the Secretary did not establish a violation of this standard. The fact that the door was
difficult to open and travel through does not establish that it was not of sufficient strength to
separate air courses or permit travel between the air courses. In addition, the fact that one miner
was injured while traveling through the door does not establish that the door was unsafe· to travel
through. This mine contained many similar doors between intake and return air. Proving that
one man was injured does not establish that the door was unsafe to travel through. Accordingly,
the citation is vacated.
2. Citation No. 4058064
On August 21, 1995, Inspector Shiveley issued a section 104(a) citation alleging a
violation of30 C.F.R. § 75.380(d)(l). In the citation, the inspector alleged that the alternate
escapeway in entry No.3 of the 3 north mains was not maintained in safe condition at crosscut
No. 27 because water was allowed to accumulate in the area. He determined that the water was
between I and I 8 inches deep in an area that was 30 feet long and as wide as the entry. The
citation states that there was a pump in the area but that it was not operating. He determined that
the violation was S&S and that Basin Resources' negligence was moderate. The Secretary
proposes a penalty of $1 ,97 I for the alleged violation. The safety standard requires escapeways
to be maintained in a safe condition to "always assure passage of anyone, including disabled
persons."
Inspector Shiveley testified that Basin Resources had constructed a bridge over the water
but that it was floating and that you could not see the floor of the entry through the water. (Tr.
59). He said that the pump was clogged with debris. (Tr. 66). Jeff~ry Salerno, a former safety
inspector at the mine, testified that there were two pumps operating to remove the water at the
time the citation was issued. (Tr. 253; Ex. R-1). He further testified that the water was present
because the PVC pipe that brought water into the section was broken in four locations. (Tr. 254).
He stated that the pipe was under high pressure, in part, because it dropped 500 feet as it
descended into the mine.
I find that the Secretary established a violation. I credit Inspector Shiveley's description
of the conditions in the area. I also fmd that the violation was S&S. The Secretary established
that it was reasonably likely that the hazard contributed to would result in an injury of a
reasonably serious nature. I find that Basin Resources' negligence was somewhat less than
moderate because it was in the process of building a bridge and trying to remove the water. A
penalty of $800 is appropriate.

1569

3. Other Citations
Basin Resources also contested 17 other section 104(a) citations in this case. At the
hearing, Basin Resources agreed that it would not contest the fact of violation in these citations
or the other determinations made by the inspector in the citations. It only contests the penalties
proposed by the Secretary, which it contends are too high. Based on the description ofthe
violations in the citations, the inspector's determinations with respect to gravity and negligence,
and the civil penalty criteria discussed below, I assess the penalties set forth in section III of this
·
.
decision.

C. Docket No. WEST 96-158
I. Order No. 4058129
On August 15, 1995, Inspector Shiveley issued a section 104(d)(2) order alleging a
violation of section 75.400. In the order, the inspector alleges that accumulations of float coal
dust were allowed to exist in the belt entry for the 3 north mains between crosscut Nos. 56 and
62, for a distance of 840 feet. The order states that the float coal dust covered the mine floor
from rib-to-rib. It states that the area was black, the belt was operating, and the dust was dry.
Inspector Shiveley determined that the violation was S&S and was caused by Basin Resources'
unwarrantable failure. The Secretary proposes a penalty of$8,500 for the alleged violation.
S.e ction 75.400 provides, in part, that coal dust, including float coal dust deposited on rockdusted surfaces, shall be cleaned up and not be allowed to accumulate in active workings.
Inspector Shiveley testified that the float coal dust accumulations were extensive. He
stated that there was coal dust on the belt structure, the ribs, and the floor. (Tr. 92; Ex. G-4). He
testified that the coal dust extended into the crosscuts. The belt was carrying coal and there was
coal dust in suspension. He observed thiee people in the area. Some of the miners were
shoveling around the tailpiece at crosscut No. 62. (Tr. 93). He believed that the belt system
could act as an ignition source for the coal dust. For example, the belt could rub against the belt
structure, or rollers could become stuck or get hot. (Tr. 96, 103). He compared the coal dust to
gun powder in terms of its tendency to explode easily. He believed that there was enough float
coal dust in the area to cause "a pretty good-sized explosion." (Tr. 98).
Before he went underground, Inspector Shiveley reviewed the mine's belt record book.
He believed that the record book showed that float coal dust had been present in the entry for
several days. He testified that these records noted the presence of float coal dust between August
10 and August 14 and did not indicate that the accumulation had been cleaned up. (Tr. I 01-111;
Ex. R-J). He determined that an unwarrantable failure order should be issued, in large part,
because of these records. Inspector Shiveley recommended that the order be specially assessed
because the "condition was reported in the record book from 8-10-95 to 8-14-95, [and] no action
was taken to correct condition." (Special Assessment Review Form). He further testified that an
operator is required to record whether a hazardous condition has been corrected in the record
books. (Tr. 123-24). He also relied on his experience inspecting the Golden Eagle Mine. (Tr.

1570

142, 147-51). The condition was terminated in about one hour by rock dusting the cited area.
(Tr. 120).
Derrel Curtis, the former mine superintendent, testified that float coal dust can be
deposited quickly along a belt line at the Golden Eagle Mine. He stated that because the mine
liberates high levels of methane, a blowing ventilation system was used which caused air to
move at high velocities. (Tr. 296-97). As this air passes by a point in a belt system that tends to
pulverize coal, the air will pick up the fme coal dust and spread it down the entry in a "very short
period of time." (Tr. 297). Mr. Curtis testified that if you have a spillage along the belt, float
coal dust will be dispersed in the area in a matter of minutes. He stated that the mine uses an
automated rock dusting system as well as trickle dusters to control float coal dust. He further
testified that the belt had been recently moved to the cited entry and the automated rock dusting
system had not yet been installed. (Tr. 301).
Mr. Curtis further testified that Inspector Shiveley reached an incorrect conclusion from
the belt record book. He testified that a particular page may not show that an accumulation had
been cleaned up and that the absence of a notation about accumulations on the next few shifts
indicates that the accumulation was cleaned up. He countersigned the belt record book and
testified that the book shows that on August 12 and 13 the accumulation had been cleaned up and
that the accumulation cited by the inspector must have been created on August 14. (Tr. 303-17;
Ex. R-J). Mr. Curtis testified that the presence of float coal dust in the crosscuts and along the
belt line did not indicate that the condition had existed for a long period of time. He stated that
such conditions can be created in a short period of time. He believed that the fact that it only
took about an hour to abate the condition shows that the condition had not existed for a Ion~
period of time because more rock dust has to be applied to long-standing accumulations. (Tr.
328-29).
I find that the Secretary established a violation. Although Inspector Shiveley did not take
a sample of the dust, he was unequivocal in his opinion that the accumulation could propagate a
fire or explosion. An accumulation exists under section 75.400 if the Secretary establishes that
"the quantity of the combustible materials is such that ... it likely could cause or propagate a fire
or explosion if an ignition source were present." Old Ben Coal Co., 2 FMSHRC 2806, 2808
(October 1980). I credit Inspector Shiveley's testimony on this issue. I also credit his testimony
concerning the presence of ignition sources.
I also find that the violation was S&S. I find that the Secretary established the four
elements ofthe Commission's S&S test. Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
The third element of the test is important in this case: whether it was reasonably likely that the
hazard contributed to would result in an injury. This element does not require the Secretary to
establish that it was more probable than not that an injury would result from the hazard
contributed to by the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). The
test is whether an injury is reasonably likely. There were several ignition sources along the belt,
as described by Inspector Shiveley, and it was reasonably likely that the float coal dust would be
ignited given continuing mining operations.

1571

The more difficult issue is whether the violation was caused by Basin Resources'
unwarrantable failure to comply with the safety standard. Basin Resources atgues that Inspector
Shiveley's reliance upon the belt record book is misplaced. It contends that a fair reading of the
entries in the record book establishes that any hazardous conditions that existed prior to August
14 had been corrected and that the conditions cited by the inspector had just occurred. Second, it
argues that the fact that the float coal dust covered a large area, does not justify an unwarrantable
failure finding because the record establishes that the float coal dust can be dispersed at the mine
in only a few minutes. Third, it argues that management's reaction to the dust was reasonable, as
there were miners shoveling loose coal in the area in preparation for applying rock dust. Finally,
it argues that the mine was in the process of implementing steps to improve its dust control
systems.
I find that the Secretary established that the violation was the result of Basin Resources '
unwarrantable failure. Unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987).
Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack.ofreasonable care." /d. at 2003-04; Rochester &
Pittsburgh Coal Co. , 13 FMSHRC 189, 193-94 (February 1991 ). The Commission has held that
"a number of factors are relevant in determining whether a violation is the result of an operator's
unwarrantable failure, such as the extensiveness of the violation, the length of time that the
violative condition has existed, the operator's efforts to eliminate the violative condition, and
whether an operator has been placed on notice that greater efforts are necessary for compliance."
Mullins and Sons Coal Co., Inc. , 16 FMSHRC 192, I 95 (February 1994)(citation omitted).
I agree that the belt record book does not establish that this particular condition had
continuously existed since August 10. I also agree that the record establishes that it is possible
for float coal dust to be deposited on the entry and belt structure in a relatively short period of
time. But I disagree that Basin Resources was exercising reasonable care in addressing the float
coal dust problem that existed at the mine. Basin Resources moved the belt to a new location
and operated it without extending the automatic rock dusting system into the area. It knew that it
had a problem with float coal dust because a high volume of air was necessary to disburse
methane yet it continued to allow float coal dust to accumulate along the belt on a regular basis.
Although Basin Resources apparently cleaned up accumulations or applied rock dust fairly
regularly, accumulations would reoccur just as regularly. I credit Inspector Shiveley's testimony
that belts are frequently "dirty" at the mine and that miners often simply spot clean "little areas."
(Tr. 145-47). The mine has a significant history of violations of section 75.400. The Special
Assessment Review Form accompanying Order No. 4057625, discussed below, indicates that the
mine had been issued about 14 orders and 47 citations for violations of section 75.400 in the
previous year. (Ex. G-8). The history of previous violations for the mine indicates that 130
citations and orders were issued for violations of section 75.400 between August 30, 1993 and
August 29, 1995. (Ex. G-3).
Thus, in reviewing the evidence as a whole, I find that Basin Resources was not
adequately addressing the problems associated with float control dust at the mine. Rather, as

1572

demonstrated by the order at issue, it would allow accumulations to develop and then abate t4e
condition when it was convenient. Basin Resources had been put on notice that greater efforts
were necessary to comply with the standard and its response was inadequate. Its efforts were
particularly inadequate because of the high degree of danger posed by accumulations of float coal
dust. Accordingly, I conclude that the degree of negligence demonstrated by this violation was
high and that the violation was a result of Basin Resources' aggravated conduct. A penalty of
$5,000 is appropriate.
2. Citation No. 4057622
On September 5, 1995, MSHA Inspector Shiveley issued a section l04(a) citation
alleging a violation of30 C.F.R. § 75.202(a)(l). In the citation, the inspector alleged that the
mine roof in entry i\j'o. 3, inby crosscut No. 44, in the 4left section was not adequately controlled
to prevent roof material from falling. The citation states that vertical yield control supports
("VYC") were used as supplemental support in the area and that these supports failed to control
the roof. He determined that the violation was S&S and was caused by Basin Resources'
moderate negligence. Inspector Shiveley issued Order No. 4057621 at about the same time
alleging that these conditions created an irruninent danger. The Secretary proposes a penalty of
$5,000 for the alleged violation. Section 202(a) provides, in part, that roof and ribs in "areas
where persons work or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls" of the roof or ribs.
Inspector Shiveley testified that the VYC supports were so badly crushed and broken that
they did not control the roof. (Tr. 154). The area cited was a bleeder entry and the bad top
started about one crosscut beyond the Iongwall machine. He stated that some of the VYCs were
bowed out, some were lying on their side, and others were bent. (Tr. 156). He stated that the
entry was under heavy pressure because the longwall had mined past the area. Inspector Shiveley
testified that the roof was severely broken and loose rock was present. He considered the
condition to be so dangerous that he issued an imminent danger order.
Thomas Morris, a former shift supervisor at the mine, testified that the mine had been
having problems with traditional wooden cribs. (Tr. 277). He further stated that the VYCs were
not performing as well as he had hoped. He stated that the mine was in the process of getting
chicken wire and steel beams to support the roof. (Tr. 278, 289). He also stated that Hercules
cribs were going to be installed in certain areas. Mr. Curtis testified that the cited area was
experiencing severe floor heaving. (Tr. 332). He stated that miners had been in the area to begin
installing additional cribs to support the roof. He described the measures that were being taken
to address the problem. (333-36). Finally, Mr. Hallows testified that the mine had started
rehabilitation work before the citation was issued. (Tr. 352; Ex. R-K).
I find that the Secretary established a violation. I credit Inspector Shiveley's description
of the roof condition. I also find that the violation was S&S. The Secretary established that it
was reasonably likely that the hazard contributed to would result in an injury of a reasonably
serious nature. I find that Basin Resources' negligence was less than moderate. I credit the

1573

testimony of its witnesses that it was aware of the problem and was taking steps to address it. A
penalty of$1,500 is appropriate.
3. Order No. 4057625
On September 9, 1995, Inspector Shiveley issued a section 104(d)(2) order alleging a
violation of section 75.400. In the order, the inspector alleges that accwnulations of loose coal
and fine coal were allowed to exist in the belt entry in the 4 left section from the tail roller outby
crosscut No. 43 to crosscut No. 23. The order states that the accumulations were in contact with
the bottom belt and rollers at several locations. It also states that piles of loose coal were under
the belt that were between six and nine inches high. It also states that float coal dust was along
the rib on the off-side of the belt in several locations. Inspector Shiveley determined that the
violation was S&S and was caused by Basin Resources' unwarrantable failure. The Secretary
proposes a penalty of$9,500 for the alleged violation.
Inspector Shiveley testified that he observed piles of loose coal between 6 and I 2 inches
deep under the belt. (Tr. 177). He saw coal in contact with the belt where a rib had sloughed off
and fallen against the belt. Coal was also in contact with the belt rollers. (Tr. 181 ). He also
observed float coal dust along the lower rib on the offside of the belt between crosscut Nos. 2 and
43, almost the entire length of the belt. The accwnulations were dry. He testified that coal was
being transported on the belt at the time he observed the condition. He did not see anyone
cleaning in the area. (Tr. 179). He took samples of the accumulations and the combustible
content ranged between 67.4% and 36.6%. (Ex. G-7).
Inspector Shiveley was concerned that miners working inby the accumulations could be
endangered because of the presence of ignition sources. (Tr. 185). The belt and rollers were
rubbing against the coal in a number of areas. He testified that the belt record book indicated that
the area needed to be cleaned up. (Tr. 187; Ex. R-0). He did not observe any miners cleaning
along the belt. (Tr. 188). He stated that it took Basin Resources about 24 hours to terminate the
order. (Tr. 190-91 ). He determined that the violation was the result of Basin Resources'
aggravated conduct based on the fact that the record book indicated that the area needed to be
cleaned up. He conceded that it is possible that the rib fell against the belt earlier in the shift
which could cause the belt to become misaligned and spill the coal and coal dust he observed.
(Tr. 200).
Mr. Morris testified that the cited entry was subject to rib rash. (Tr. 272). Large sections
of the rib sometimes fail and fall onto the belt. He further stated that the belt entry could be clean
and within an hour you could have accumulations caused by the rib falling onto the belt. /d. The
belt would become misaligned after the fall and material would spill into the entry rather quickly.
Mr. Morris stated that coal dust and float coal dust would be created as well.
Mr. Curtis testified that the accumulation that Inspector Shiveley relied upon to show
aggravated conduct in the belt record book had, in fact, been cleaned up. (Tr. 339-40). The preshift mine examiner's report for the day shift on September 6 states: ''Cleaning 4L belt from tail

1574

to 36XC both sides." (Ex. R-0 p. 11). The on-shift examiner's report for the same shift states:
"Cleaned from tail to 36XC on both sides and from 9 to 10 XC both sides." ld at 12. Mr.
Shiveley issued the order at 5:30p.m. on September 6, after the examinations had been made.
Mr. Curtis explained that the entry was on a downhill slope and the tail piece slid down,
throwing the belt "offtrain," causing a spillage. (Tr. 341). He testified that mine personnel were
aware of the situation and that miners had been working on the graveyard and day shifts to
correct the condition. !d. He stated that miners were not cleaning at the time of the MSHA
inspection because the No. 11 belt was experiencing difficulties that needed immediate attention
and miners were assig~ed to correct that problem. He also testified that a rib had become loose
and fallen down-immediately prior to the MSHA inspection. (Tr. 344-45). Mr. Curtis stated that
if the rib had fallen earlier, the condition would have been noted in the belt record book.
Basin Resources does not seriously contest the violation or the inspector's S&S
determination. (BR Br. at 19-20). It argues that the Secretary did not establish that the violation
was the result of Basin Resources' aggravated conduct. Although many of the findings that I
made in analyzing the unwarrantable failure issue with respect to Order No. 4058129 are also
applicable here, I find that the present violation was not caused by Basin Resources' aggravated
conduct. Because of extenuating circumstances, I reduce the level of negligence to moderate. I
credit the testimony of Messrs. Morris and Curtis that Basin Resources had cleaned up or mostly
cleaned up the accumulations along the belt that had been recorded in the belt record books. A
section of rib fell prior to the inspector's arrival on the section. Thus, most or all of the
accumulations were new. Miners were at the No. 11 belt at the time of Inspector Shiveley's
inspection because of reports of several bad splices along that belt, which had the potential of
causing the belt to break. (Tr. 342-43). Management was aware of the spillage and were s~nding
miners to the area once the situation at the No. 11 belt was stabilized. While the failure to
immediately clean up the belt demonstrates negligence, it does not constitute aggravated conduct.
I credit the inspector's testimony that the mine 's belt entries were often dirty and that Basin
Resources had been put on notice that greater efforts were necessary. Nevertheless, I find that
the mitigating circumstances described above warrant a reduction in the degree of negligence.
The order is modified to a section 104(a) citation. A penalty of$2,500 is appropriate for this
violation.
II. APPROPRJATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. 1 find that Basin Resources was issued 862 citations and orders in the
24 months preceding October 17, 1995, and that Basin Resources paid penalties for 734 ofthese
citations and orders during the same period. (Ex. G-3). I also find that Basin Resources was a
rather large mine operator. (Ex. R-Q). The Golden Eagle Mine shut down in December 1995
and is no longer producing coal. Basin Resources has been unable to sell the mine. Its unaudited
balance sheet for April 30, 1996, shows that shareholders' equity was minus about 23 million
dollars and its income statement for the year ending April 30, 1995, shows a net loss of
$325,000. 18 FMSHRC 1846, 1847 (October 1996). I have taken Basin Resources' fiiJ.ancial
condition into consideration and find that the civil penalty assessed in this decision would not

1575

have affected its ability to continue in business. The Secretary has not alleged that Basin
Resources failed to timely abate the citations and orders. Unless otherwise noted above, all of
the violations were serious and the result of Basin Resources' moderate negligence. Based on the
penalty criteria, I find that the penalties set forth below are appropriate for the violations.

III. ORDER
Based on the criteria in section llO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties: ·
Citation/Order No.

30 C.F.R. §

Penalty

75.333(d)(2)
75.1107
75.1I00-2(t)
75.202(a)
75.351 (t)(l)
75.370(a)(l)
75.202(a)
75.1202-l(b)(3)
75.370(a)(1)
75.503
75.370(a)(1)
75.370(a)(l)
75.1202-l(b)(3)
77.1605(a)
77.400(c)
77.400(a)
75.202(a)

$200.00
200.00
200.00
400.00
200.00
200.00
400.00
200.00
200.00
400.00
200.00
1.00
200.00
200.00
1,000.00
800.00
1,200.00

75.400
75.1725(a)
75.904
75.1722(b)
75.1722(a)
75.400
75.333(c)(3)
75.333(c)(3)
75.400
75.362(a)(2)

400.00
400.00
200.00
1,200.00
1,200.00
400.00
200.00
200.00
400.00
400.00

WEST 96-25
4057802
4057803
4057788
4057789
4057790
4057791
4057792
4057796
4057797
4057462
4057463
4057468
4057470
4057471
4057472
4057474
4058076
WEST 96-124
4057274
4057275
4058121
4058122
4058123
4058124
4058125
4058126
4058127
4058128

1576

Citation/Order No.

30 C.F.R. §

Penalcy

4058130
4058061
4058062
4058063 ·
4058064
4058139
4058140
4058065
4058066

75.333(c)
75.512
75.202(a)
75.335(a)(l)(iv)
75.380(d)(l)
75.1702
75.400
75.1405
75.1725(a)

Vacated
200.00
1,200.00
200.00
800.00
200.00
400.00
1,200.00
1,200.00

75.400
75.202(a)
75.400

5,000.00
1,500.00
2,500.00

WEST96-158
4058129
4057622
4057625

Total Penalty

$25,601.00

Accordingly, the Secretary's motion to amend the petitions for assessment of penalty is
DENIED, the citations and orders listed above are hereby VACATED, AFFIRMED, or
MODIFIED as set forth above, and Basin Resources, Inc., is ORDERED TO PAY the
Secretary of Labor the sum of$25,601 .00 within 40 days oft
· decision.

Richard W. Manning
Administrative Law Judge
Distribution:
William W. Hulvey and Peter D. Campbell, Conference and Litigation Representatives, Mine
Safety and Health Administration, U.S. Department of Labor, 5012 Mountaineer Mall,
Morgantown, WV 26505 (Certified Mail)
Edward Falkowski, Esq., Office ·o fthe Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Andrew Volin, Esq., SHERMAN & HOWARD, L.L.C., 633 17th Street, Suite 3000, Denver, CO
80202 (Certified Mail)

1577

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

September 10, 1997

SECRETARY OF LABOR, MSHA,
on behalf of MICHAEL D. BROWN
Complainant,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 97-316-D
BARB CD 97-11
BARB CD 97-12

v.
BOOGAR MAN MINING, INC.,
DEMA COAL COMPANY, INC.,
A & J FUELS, INC., BARRY MOORE,
and FREDDIE HUNTER,
Respondents

Mine ID 15-02755
Mine No.1

ORDER OF TEMPORARY REINSTATEMENT
This case is before me on an Application for Temporary Reinstatement filed by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), on
behalf of Michael D . Brown, pursuant to section lOS(c) of the Federal Mine Safety and Health
Act of 1977, 30 U .S.C. § 815(c). The application seeks reinstatement of Mr. Brown as an
employee at the No. 1 mine operated by Boogar Man Mining, Inc., or its successor, A & J Fuels,
Inc., in Knott County, Kentucky,1 pending a decision on the Complaint of Discrimination the
Secretary has filed against the Respondents on behalf of Brown. For the reasons set forth below,
I grant the application and order Mr. Brown's temporary reinstatement.
Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the
Secretary shall investigate a discrimination complaint "and if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending fmal order on the
complaint." The Commission has provided for this procedure with Rule 45, 29 C.F.R.
§ 2700.45.

1

Barry Moore and Freddie Hunter are principal shareholders in Boogar Man Mining, Inc.
and Dema Coal Company, Inc. is alleged to exercise control over the No. 1 mine in the
production of coal. Accordingly, Moore, Hunter and Dema are operators within the meaning of
section 3(d) of the Act, 30 U.S.C. § 802(d), and are Respondents to this proceeding along with
Boogar Man and A & J Fuels.

1578

Rule 45(c), 29 C.F.R. § 2700.45(c), provides:
Within 10 days following receipt of the Secretary's application for
temporary reinstatement, the person against whom the relief is sought shall advise
the Commission's Chief Administrative Law Judge or his designee, and
simultaneously notify the Secretary, whether a hearing on the application is
requested. If no hearing is requested, the Judge assigned to the matter shall
review immediately the Secretary's application and, ifbased on the contents
thereof the Judge determines that the miner's complaint is not frivolously brought,
he shall issue immediately a written order of temporary reinstatement.
The Application for Temporary Reinstatement was served on Freddie Hunter as Agent for
Service of Boogar Man Mining; C. Graham Martin, Esq., as Agent for Service for A & J Fuels;
Carl Ray Johnson as Agent for Service for Dema Coal Company; and Barry Moore and Freddie
Hunter, individually, on August 19, 1997, by certified mail, return receipt requested. Return
receipt cards indicate that Carl Ray Johnson received the application on August 21 and Freddie
Hunter received the application both personally and as agent for service on August 22. Barry
Moore refused to accept the application by mail. On August 27, Maurice Mullins, an MSHA
Special Investigator, attempted to personally serve Moore, but he again refused to accept service.
Finally, on September 8, the envelope addressed to C. Graham Martin, Esq., was returned to the
Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, marked "unclaimed."
More than 10 days have elapsed from the date that those Respondents who received the
application received it. No request for a hearing on the application has been made by any
respondent.
Brown alleges in his application that he was discharged by Boogar Mining on April!,
1997, because he made safety complaints to Moore and Hunter with regard to working under
unsupported roof and refusing to do so in.the future. He also alleges that when he returned to the
mine on May 2, 1997, to pick up his final pay check "he was threatened with bodily harm,
threatened with a knife, intimidated and harassed by both Barry Moore and Freddy [sic] Hunter
and never received his fmal paycheck." An affidavit from Ronnie L. Brock, Supervisor of
Special Investigations for MSHA, states that his investigation verified Moore's complaints.
Accordingly, I conclude that Moore's application has not been frivolously brought and
that he is entitled to be temporarily reinstated.
OBDER

Michael D. Brown' s Application for Temporary Reinstatement is GRANTED. The
Respondents, jointly or severally, are ORDERED TO REINSTATE Mr. Brown to his former

1579

position, which he held on April 1, 1997, as a drill operator at the No. 1 mine, or to a similar
position, at the same rate of pay and benefits IMMEDIATELY ON RECEIPT OF THIS

DECISION.

~J~~ ~

T. Todd Hod~r~
Administrative Law Judge
(703) 756-6213

Distribution:
MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Dept of Labor, 2002 Richard Jones Blvd.,
Suite B-201, Nashville, TN 37215 (Certified Mail)
Mr. Freddie Hunter, Agent for Service, Boogar Man Mining, Inc., Route 194, Cow Creek,
Box 300, Allen, KY 41601 (Certified Mail)
C. Graham Martin, Esq., Agent for Service, A & J Fuels, Inc., P.O. Box 123, Maple St.,
Salyersville, KY 41465 (Certified Mail)

Mr. Carl Ray Johnson, Agent for Service, Dema Coal Co., Inc., Highway 7, HC 80, Box 1070,
Dema, KY 41859 (Certified Mail)
Mr. Barry Moore, Box 1323, Martin, KY 41649 (Certified Mail)
Mr. Freddie Hunter, Boogar Man Mining, Inc., Route 194, Cow Creek,
Box 300, Allen, KY 41601 (Certified Mail)

Mr. Michael Brown, P.O. Box 483, McDowell, KY 41647 (Certified Mail)
/It

1580

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

'SEP 1 5 f997
CONSOLIDATION COAL COMPANY,
Contestant

v.

CONTEST PROCEEDING
Docket No. WEVA 97-84-R
Order No. 3493571; 5/16/96

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

Robinson Run No. 95 Mine
Mine ID No. 46-01318

DECISION
Appearances:

Elizabeth S. Chamberlin, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, on behalf of Contestant;
Melonie J. McCall, Esq., Office of the Solicitor, U.S. Dept. of
Labor, Arlington, Virginia, on behalf of Respondent.

Before:

Judge Melick

This contest proceeding is before me pursuant to Section lOS(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801, et. seq., the "Act," to challenge a failure-toabate withdrawal order, No. 3493571, issued by the Secretary of Labor to the Consolidation Coal
Company (Consol) under Section 104(b) of the Act. The underlying Section 104(a) citation,
No. 3493950, was affirmed by this Administrative Law Judge by decision dated June 19, 1997
(18 FMSHRC 1174) and that decision has since become fmal. 1

1

Section 104(b) of the Act provides as follows:

If, upon any follow-up inspection of a coal or other mine, an authorized representative of
the Secretary finds (1) that a violation described in a citation issued pursuant to subsection (a)
has not been totally abated within the period of time as originally fixed therein or as
subsequently extended, and (2) that the period of time for the abatement should not be further
extended, he shaii determine the extent of the area affected by the violation and shall promptly
issue an order requiring the operator of such mine or his agent to immediately cause all persons,
except those persons referred to in subsection (c), to be withdrawn from and to be prohibited
from entering, such area until an authorized representative of the Secretary detennines that such
violation has been abated.

1581

In order to understand the issues concerning the order at bar, it is necessary to understand
the facts surrounding the underlying Section 104(a) citation. Accordingly, the decision affirming
·
that citation is set forth in relevant part below:
Citation No. 3493950 issued on March 18, 1996, as modified on March 25, 1996,
reads as follows:
Based on the results of (2) valid respirable dust samples collected by
MSHA, the average concentration of dust in the working environment of the 013
occupation (clean-up man/belt cleaner) exceeds to 2.0 mg!M3 standard.
The dust samples collected from 2-20-96 to 3-05-96 show an average
concentration of 11.22 Mg/M3 for the 013 occupation, 001-0 entity, which is
located along the No. 2 5 North Mains belt line from the 6D transfer to the Mains
section.
Mine management shall take corrective action to lower the respirable dust
and then to sample 701-2 each day until five valid samples are taken and
submitted to the Pittsburgh respirable dust processing laboratory.
The cited standard, 30 ·C.F.R. Section 70.100(a) provides as follows:
Each operator shall continuously maintain the average concentration of
respirable dust in the mine atmosphere during each shift to which each miner in
the active workings of each mine is exposed at or below 2.0 milligrams of .
respirable dust per cubic meter of air as measured with an approved sampling
device and in terms of an equivalent concentration dete~ed in accordance with
§ 70.206 (Approved sampling devices; equivalent concentrations).
Scott Springer, a coal mine health and safety inspector for the Mine Safety and
Health Administration (MSHA), set up a dust pump on February 20, 1996, on the belt
cleaner who worked the 5 North Mains No.2 beltline. Under his observation the belt
cleaner attached the approved sampling device. At the end of her shift Springer removed
the cassette and, following standard procedures, sent it to the Pittsburgh processing
laboratory for analysis. On March 5, 1996, Springer took another dust sample on the
. same miner. That sample was also sent to the Pittsburgh processing laboratory for
analysis. Springer subsequently received a computer printout of the samples reporting an
average dust concentration of 11.2 mg. per cubic meter. Springer accordingly issued the
instant citation on March 18, 1996, for an averclge concentration of dust in the working
environment of the belt cleaner exceeding the 2.0 mg.-per-cubic-meter respirable dust
standard.

1582

Consol argues that the Secretary failed to sustain her burden of proving the
violation claiming that the sampling and laboratory testing were perfonned contrary to
the Secretary's established procedures and were therefore not reliable. More specifical~y,
Consol argues that the sample results were unreliable because there was a problem with
the dust pump used to collect the sample on February 20, 1996. The testimony of
Inspector Springer in this regard is undisputed. The pwnp stopped running for several
minutes in the first two hours of sampling. Springer hypothesized that the sampling tube
had been pinched-off due the miners position when riding on the mantrip to her work
station and that the pump automatically shut off as a result. Springer explained however
that the pump itself was not defective and that once the problem was discovered and
corrected, the pump operated for the remainder of the shift.
MSHA 's dust weighing laboratory chief, Lewis Raymond, testified moreover that
for valid sampling the dust pumps need only to operate for 100 minutes. On February 20,
1996, the sampling pump ran for approximately 360 minutes. While agency regulations
require dust pump failures to be reported on the dust data card, the failure to report in this
case was irrelevant to the validity of the sample. The pump at issue operated for the
entire time that the belt cleaner worked along the belt and in excess of the minimum time
required for a valid sample. Consol's argument herein is accordingly rejected.
While Consol also alleges that the testing laboratory procedures were contrary to
established agency procedures, this allegation is not supported by the evidence. Consol
has not established that either the February 20 or March 5 sample exceeded the oversized
particle standard necessary to void either sample. Indeed, Raymond found that both
samples were normal. Consol's argument in this regard must also therefore fail. The
violation is accordingly proven as charged.
Consol acknowledges that, if there was a violation, it was "significant and
substantial." Accordingly I find that the violation was also "significant and substantial"
and of significant gravity. The Secretary also maintains that the operator was only
moderately negligent in that the area tested was not known by prior sampling to have
been one of high dust concentration. The Secretary also observes, however, that Consol
was placed on notice of possible high dust concentration from prior complaints by the
subject belt cleaner dating back to as early as January 1996. I accept the Secretary's
evaluation ofConsol's negligence as moderate.
The Secretary maintains, however, that Consol did not demonstrate good faith in
attempting to achieve rapid compliance after notification of the violation. As a
preliminary matter it is noted that in order to abate the violation the operator was required
to obtain "five valid samples" of the subject belt examiner and to submit those samples to
the Pittsburgh respirable dust processing laboratory. The samples are mailed to the
·
laboratory and, following analysis, results are mailed back to the operator. Only then can
the operator know whether it is in compliance. There may accordingly be delays of

1583

several weeks between the actual sampling and notification to the operator of the results
of the sampling. To further complicate matters and delay compliance efforts, the
submitted dust samples may be invalidated by MSHA for any number of reasons, some of
which are beyond the control of the mine operator. It is also apparent that respirable dust
levels in the ever~changing environment of a coal mine are not a precise oonstant and that
individual exposure may vary depending on that person's work habits and motivation to
reduce exposure. Finally, it should be observed that experts in the field may, in good
faith, disagree as to the best way to reduce respirable dust exposure.
The citation at bar, issued March 18, 1996, set the abatement or termination for
April 1, 1996. An extension for abatement was granted on April 30, 1996, after five valid
respirable dust samples for the period March 20, 1996 through April 2, 1996, showed a
respirable dust concentration of 2.9 mg. per cubic meter-- still above the 2.0 mg. per
cubic meter required by the regulatory standard. In the extension to the citation MSHA
Inspector Charles Thomas noted abatement efforts the operator had already taken and
others it was planning to take. Those actions were noted as follows:
The velocity has been increased at the No. 74 Block (5N-No.2) to 57' fpm.
The velocity of air has been increased to 165 fpm at the 5N mains tail piece. The
operator has ordered a different type of spraying system for the belt lines. Also a
tamper proof system is being installed at the water spray system outlets to prevent
the water from being shut off. The keys will only be given to two authorized
persons on each shift. Additional time is granted to the operator to increase the air
at the No. 74 block (5N No.2), to install the water systems and install the tamper
proof controls for the outlets that control the water flow on the new spraying
systems. Sampling will begin on the day shift (4/22/96) and continue until s· valid
samples are collected. The operator will submit a plan prior to sampling. The
operator has also agreed to divide the dragging of the affected area between the
different shifts.
Inspector Thomas returned to the subject mine on May 6, 1996, and granted
another extension of the abatement period noting in the "subsequent action" form dated
May 6, 1996, the reasons for MSHA 's invalidation of a number of samples. The form
indicates as follows:
Four (4) of the five (5) required valid samples were submitted for the 013
occupation between 4-16-96 and 5-6-96. On following dates, samples were taken
and voided for following reasons,
1)
2)
3)

4~24-96 cassette number 50-234511 did not work entire
shift at location
4-29-96 cassette number 50~233897 person injured not on
location all shift
4-30~96 cassette number 50-234515 dust pump bottom
failure

1584

Also, the 013 occupation traveled with federal inspector as walkaround 423-96 and took one graduated vacation day (4-25-96) during the sampling period
from 4-16-96 • 5-6-96, the fifth valid sample was submitted but rejected by the
computer as invalid code on 4-22-96 and operator became aware 5-6-96. (18
FMSHRC 1174 - 1177).
.
On May 16, 1996, Inspector Thomas, accompanied by William Ponceroff, the Chief of
Health at MSHA District No. 3, returned to the subject mine. Ponceroff thereafter issued the
Section 104(b) closure order now in dispute. The order states as follows :

An adequate effort was not made to abate Citation No. 3493950, dated 3/18/96.
The concentrations of respirable dust was 11 .22 mg/m3 (average concentration) for the
013 occupation (001-0 entity). This occupation is located along the No. 2, 5 North Mains
belt line. Adjustments and corrections were made and the subsequent sample reflected an
average concentration 2.9 mg/m3. The citation was extended based on increasing the air,
install new auto flow water spray system on the 7-D & 8-D beltlines, install a water spray
systems on the No.2 5-N beltline where intentional shutdown of the spray system is
minimized, reinstruct the individual sampled and increase the airflow to 80 fpm after
these adjustments were made, the results of the respirable dust samples (average) was 2.2
mg/m3. Upon investigation of the changes after the second continued noncompliance,
the following conditions were observed: a tamper proof intentional shutdown of the
spray system for the No.2, 5-N belt was not installed. Two of the 3 sprays (top) were
shut off. The top belt was dry from the No. 64 crosscut to the No. 91 crosscut, a distance
of2,700 feet. The water spraying system for the 8D beltline did not have a water spray
for the top surface of the top belt. The valve to prevent intentional shutdown of the water
spraying system was connected to a hose, but not installed in the water system. A ·
citation for float coal dust was issued at the 8-D belt transfer where coal is dumped on the
No. 2, 5 North beltline. The tamper proof valve to prevent intentional shutdown of the
sprays for the 7-D system was not installed to prevent the sprays from being shut off.
Two of the three bottom sprays were turned off. The 9-D beltline also dumps coal on the
5N, No.2 beltline. A top spray was not installed to spray the top surface of the top belt.
Management was aware that the valve to minimize intentional shutdown was being
defeated by using an acetyline wrench. 1bis had occurred on at least 2 occasions.
Measures were not implemented to prevent this from happening. Management has failed
to assure that the new system for the water were installed and properly maintained. No
other means of evaluation were implemented by the company.
As a condition precedent to issuing an order under Section 104(b) of the Act, the
Secretary must find that a violation de~cribed in the underlying Section 104(a) citation has not
been totally abated within the period of time as originally fixed, or as subsequently eXtended.
The burden of proof on this issue is upon the Secretary as the moving party. On the facts of this
case, I do not fmd that the Secretary has met her burden of proving that the underlying violation
had not been totally abated within the period of time set forth in MSHA's extension of the
abatement period.

1585

It is undisputed that, in issuing the 104(b) order in this case on May 16, 1996, MSHA
Inspector Poncerof( relied on the May 10, 1996, "Report of Continuing Non-Compliance," to
determine that the violative condition alleged in the underlying citation had not been abated
(Gov. Exh. No.5, Pg. 2). lbis report reflected that the average concentration of respirable dust
in the cited area was 2.2 milligrams per cubic meter between April 22, 1996, and May 3, 1996.
The concentrations of respirable dust for these samples ranged from I. 7 milligrams per cubic
meter to 2.6 milligrams per cubic meter.
Consol maintains, however, that the 2.2 milligrams per cubic meter average concentration
reported in the May I 0, J.996, MSHA laboratory report, was not a valid finding because it was
based upon an April 24, 1996, respirable dust sample which was not obtained in the "designated
area." It is not disputed that the April 24, 1996, sample was in fact invalid because the sample
was not taken in the "designated area." The miner sampled did not work in the "designated area"
for the entire shift. There is no dispute that if one of the five samples used to calculate the 2.2
milligrams per cubic meter average concentration of respirable dust found in the May 10, 1996,
MSHA report was invalid, there would have been an insufficient number of dust samples to have
permissibly concluded that the designated area was out of compliance, and was therefore still in
violation of the dust standard. See 30 C.F.R. § 70.20l(d).
While the Secretary does not dispute that the April 24, respirable dust sample was
invalid, she appears to argue that Consol failed to inform MSHA of that deficiency prior to the
issuance of the 104(b) order on May 16, 1996. It is reasonable to assume that the burden is upon
the mine operator to bring to MSHA's attention any invalidated dust samples since that
information on the facts of this case was within the exclusive control of the operator. See also
Enen~Y West Mining Company v. FMSHRC, Ill F.3d 900 (D.C Cir. 1997). I find from the
credible evidence in this case that Consol did indeed bring this information to the attention of
MSHA prior to the issuance of the order.
First, Consol Mine Safety Supervisor, David McCullough, testified that he had attached a
note to the dust data card which he submitted to the MSHA laboratory, notifying the laboratory
that the sample had not been properly obtained in the designated area. Second, McCullough
testified that he informed MSHA Inspector, Charles Thomas, on May 6, 1996, that the April 24,
respirable dust sample had not been taken in the designated area because the miner sampled did
not work in the designated area for the entire shift. Inspector Thomas confirmed that
McCullough had indeed told him on May 6, that the April 24 sample was, in effect, invalid.
Thomas also noted on his subsequent action fonn dated May 6, 1996, that the April 24, 1996,
sample had been voided.
Under the circumstances, I fmd that Consol did in fact inform MSHA, that the April 24,
sample was invalid. Clearly then, MSHA knew as of May 6, 1996, that the April 24, 1996,
sample was invalid. Since MSHA was on notice that one of the five samples used to calculate
the 2.2 milligrams per cubic meter average concentration was invalid, it had no legal basis to
conclude that the designated area was out of compliance. Accordingly, the Secretary has not
sustained her burden of proving that the cited violation had not been totally abated within the
extended abatement period. Accordingly, the order at bar must be vacated.

1586

QRDER
Order No. 3493571 is hereby VACATED and this contest proceeding is GRANTED.

Gary Melick,

I

Administrat;ve Law Judge
~

•

Distribution:

Melonie J. McCall, Esq., Office of the Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)
Elizabeth S. Chamberlin, Esq., Consol, Inc., 1800 Washington Road, Pittsburgh, PA 15241-1321
(Certified Mail)
\mea

1587

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

SEP 1 6 1997
SECRETARY OF LABQR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
NORTON CRUSHED STONE,
Respondent

: CIVIL PENALTY PROCEEDINGS
Docket No. CENT 95-210-M
A.C. No. 41-03813-05508
Docket No. CENT 95-211-M
A.C. No. 41-03813-05509
Norton Development

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

: CIVIL PENALTY PROCEEDING
Docket No. CENT 97-49-M
A.C. No. 41-03813-05512 A

v.
MARVIN D. CARLISLE, employed by
NORTON CRUSHED STONE,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Norton Development

: CIVIL PENALTY PROCEEDING
Docket No. CENT 97-50-M
A.C. No. 41-03856-05506 A

V.

MARVIN D. CARLISLE, employed by
NORTON CRUSHED STONE,
Respondent

Tull Pit

DECISION
Appearances: Robert A. Goldberg, Esq., Mary K. Schopmeyer, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, on behalf of the Complainant;
Hugh E. Hackney, Esq., Fulbright & Jaworski, Dallas, Texas, forth~
Respondents.

1588

Before:

Judge Weisberger

These cases are before me upon petitions for assessment of civil penalty under Section
105(d) and llO(c) of the Federal Mine Safety and Health Act of 1977 (the Act). Petitioner has
filed a motion to approve settlement agreement and to dismiss the cases. A reduction in total
penalties from $48,306 to $22,153 is proposed. I have considered the representations and
documentation submitted in these cases, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section 11 O(i) of the Act.
WHEREFO~, the motion for approval of settlement is GRANTED, and it is

ORDERED that Tom E. Norton Jr., on behalf of Norton Crushed Stone, the Respondent
operator, and on behalf of Marvin D. Carlisle, the agent of the operator, shall pay a total penalty
of $22,153 as follows:

l.

$2,017 is to be paid within 30 days of this decision.

2.

An installment payment of $839 shall be paid by August 22, 1997, and remaining
installments of $839 each shall be paid on or before the same day of each
successive month until all 23 remaining installments have been paid.

vram Weisberger
Administrative Law Judge
Distribution:
Robert A. Goldberg, Esq., Office of the Solicitor, U.S. Department of Labor, 525 S.
Griffin Street, Suite SOl, Dallas, TX 75202 (Certified Mail)
Hugh E. Hackney, Esq., Fulbright & Jaworski, L.L.P., 2200 Ross Avenue, Suite 2800,
Dallas, TX 75201 (Certified Mail)
/lt

1589

FEDERA~

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

SEP 2 2 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAMES RIEKE,
Petitioner
v.

: DISCRIMINATION PROCEEDING
: Docket No. LAKE 95-201-DM
: NC-CD 94-10
: Cleveland Mine
: Mine ID 33-06994

AK.ZO SALT COMPANY, INC.,
Respondent

DECISION ON REMAND
Before:

Judge Melick

This case is before me upon remand by the Commission to determine the amount of
additional backpay due the Complainant, James Rieke, and to determine whether his July 1996
unrelated discharge is fmal. The parties have stipulated that this discharge is in fact final and that
Rieke was due the sum of $3,81 0.14, in damages plus interest as of August 31, 1997.
Accordingly, Respondent, Akzo Nobel Salt, Inc., is directed to pay James Rieke the noted
damages, with supplemental interest through the date of payment, within 30 days of the date of
this order.

Judge
Distribution:
Ruben Chapa, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street,
8th Floor, Chicago, IL 60604 (Certified Mail)
William Michael Hanna, Esq., Squire, Sanders & Dempsey, 4900 Society Center, 127 Public
Square, Cleveland, OH 44114 (Certified Mail)
\mea

1590

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

SEP 2 3 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-334-M
A.C. No. 23-01924-05520

v.
Fort Scott Fertilizer-Cullor, Inc.
FORT SCOTT FERTILIZER-CULLOR,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 93-117-M
A.C. No. 23-01924-05523 A
Fort Scott Fertilizer-Cullor, Inc.

JAMES CULLO~ Employed by
FORT SCOTT FERTILIZERCULLOR, INC.,
Respondent
DECISION ON REMAND
Before:

Judge Feldman

On September 15, 1997, the Commission remanded this case for an analysis of the six
penalty criteria in section llO(i) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(i), with respect to the appropriate civil penalty to be imposed in this matter. 1 A nominal
$10.00 civil penalty had been assessed for each of two citations issued for violations of30 C.F.R.
§ 56.14101 for defective brakes on two of Fort Scott Fertilizer's haulage trucks. Although Fort
Scott stipulated to the defective brake conditions on the trucks in issue, and to the significant and
substantial nature (S&S) of these violations, Fort Scott main~ed the defective brakes resulted
from brake tampering by truck drivers William Burris and Timothy Ragland. Specifically, Fort
Scott alleged Burris and Ragland loosened slack adjuster settings on three of the four wheels on
1

This decision only concerns the appropriate civil penalty to be assessed. The
Commission has affirmed the initial findings that the subject violations were not attributable to
Fort Scott's unwarrantable failure, and that James Cullor is not liable under section llO(c),
30 U.S.C. .§ 820(c).

1591

each of the cited haulage trucks shortly before MSHA's May 27, 1997, inspection, which
occurred at the request of Burris and Ragland. 2
'

Slack adjusters control the contact of the brake shoe with the brake drum. They are
located on the inside of each haulage truck wheel. In view of the large diameter of a haulage
truck's tires, slack adjusters are easily accessible from a squatting position. Slack adjusters are
adjusted by turning a bolt with an ordinary wrench. The proper setting is tightening the bolt
completely and then turning the bolt back half a tum. Truck mechanic Raymond Jenkins
testified tightening or l<?osening slack adjusters is "real easy" and takes "only a minute." (Tr. 36,
49, 50-51). Slack adjusters can be loosened to the point where they would render the brakes
ineffective. (Tr. 38-39, 48, 221-22).
In the initial decision, I concluded there was sufficient circumstantial evidence to support
the respondents' contention that brake tampering had occurred. 15 FMSHRC 2354,2361
(November 1993). I concluded that such sabotage is anathema to the Mine Act's goal of
preventing unsafe conditions and should not be given recognition. 30 U.S.C. § 80l(e). Thus, I
vacated the defective brake citations holding that intentional disabling of equipment, as
distinguished from other employee misconduct (e.g., a violation of a mandatory safety standard
caused by an employee's failure to follow company safety procedures) was an exception to the

2

Burris and Ragland reported the defective brake conditions to the Mine Safety and
Health Administration (MSHA) on May 22, 1992, and these complaints were the impetus for
Inspector Marler's May 27, 1992, inspection that resulted in the Sl;lbject citations. Burris ~d
Ragland were terminated by Fort Scott on June 1, 1992, four days after Marler's inspection.
Burris and Ragland filed discrimination complaints pursuant to section 105(c) of the Act,
30 U.S.C. § 815(c). MSHA investigated these complaints. In separate letters mailed to Fort
Scott on July 14, 1992, concerning Burris' and Ragland's complaints, James E. Belcher,
MSHA's Chief, Division of Technical Compliance and Investigation, stated .,MSHA has
determined, in its opinion, the complainant was not discriminated a~ainst in violation of section
105Cc) (emphasis added)." (Resp. Ex. 1.). The Secretary has mischaracterized MSHA's July 14,
1992, determinations as .,prosecutorial discretion." On the contrary, these determinations are
admissions that either Burris' and Ragland's complaints were not protected activity under section
1OS(c), or, that their terminations four days later were, in no part, motivated by their complaints.
See Secretary on behalfofDavid Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 27972800 (October 1980) rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3nl Cir. 1981); Secretary on behalfofThomas Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-18 (April1981). However, consistent with the Commission directive that
considering these facts is impermissible, it is the circumstantial evidence alone, regardless of
these admissions, that serves as the basis for the conclusion that Burris' and Ragland's
complaints were not made in good faith. 19 FMSHRC _, slip op. at 3.

1592

strict liability application of the Mine Act. 15 FMSHRC at 2362-63. Conse.quently, I vacated
the citations in issue.
In its first remand, the Commission, citing, inter alia, its decision in Ideal Cement Co.,
13 FMSHRC 1346, 1351 (September 1991), concluded the Mine Act imposes strict liability on
operators for the violative acts of its employees, even when such acts involve "significant
employee misconduct." 17 FMSHRC 1112, 1115 (July 1995). Thus, the Commission
determined I erred in treating "deliberate employee misconduct" as a defense to liability and
reinstated the citations.3 /d.; 19 FMSHRC _,slip op. at 2. The Commission also vacated my
findings that tampering had oecurred and remanded for further evaluation on that issue.
However, the Commission noted that miner misconduct would not be imputable to the operator
in determining the degree of negligence for penalty purposes. 1d. at 1116.
In my remand decision I once again determined there was adequate circumstantial
evidence to support the conclusion that tampering had occurred. 17 FMSHRC 1330 (remand
decision, August 1995). Since employee misconduct constituting the intentional disabling of
brakes is central to resolution of the issue of the appropriate penalty to be assessed, I repeat the
circumstantial case that was summarized in the remand decision:
My initial decision noted strong circumstantial evidence of this simple act of
tampering. The complaining truck drivers had the motive and opportunity to
loosen the slack adjusters. Their own testimony reflects they were disgruntled
employees and threats had been made about disrupting quarry operations.
Moreover, the complainants were responsible for routine truck maintenance.
(Tr. 87). [MSHA Inspector] Marler testified one of the first things a truck driver
experiencing brake problems should check are the slack adjusters. (Tr. 29). Yet
Burris and Ragland, licensed by the State of Missouri to drive eighteen-wheeler

3

As noted by the Commission, as well as the initial decision in this matter, it is well
settled that deliberate employee misconduct is ordinarily not a defense to liability under the
Mine Act. 17 FMSHRC at 1115; See also 15 FMSHRC at 2362 {citations omitted). Deliberate
employee misconduct is most commonly manifest by a conscious failure to follow company
policy or safety rules. Under such circumstances the operator is subject to strict liability, and
may be liable for significant civil penalties. However, as discussed infra, enforcement of
statutory provisions must be viewed in the context of the "design of the statute as a whole."
K Mart Corp. V. Cartier, Inc., 486 US 281 , 291 (1988). The conduct alleged in this case- using
the Mine A~t to create a serious hazard so as to subject an operator to Mine Act sanctions under
section 11 O(i) - is distinguishable from the term "deliberate employee misconduct" as it relates
to Mine Act liability. Recognizing such an act by imposing a significant civil penalty would
undermine the statute' s fundamental intent of encouraging safety.

1593

trucks, continued to use their trucks without brakes without this rudimentary
check. (Tr. 91 ). In addition, the pattern ofloosened slack adjusters on three out
of four wheels on both trucks driven by Burris and Ragland is further evidence of
. tampering.
Furthennore, Ragland's May 22, 1992, complaint to MSHA that the quarry trucks'
brakes were ineffective is also suspect for several reasons. Significantly, despite
complaining to.MSHA that Fort Scott ignored their brake complaints, Fort Scott
truck mechanic Jenkins testified Burris and Ragland never complained to him
about brake problems. (Tr. 70). Of greater significance is Burris' testimony that
the cited 30 ton Euclid's brakes "held" when he last operated the truck on May 25,
1992, during the interim period between Ragland's May 22 MSHA complaint and
Marler's May 27 inspection. (Tr. 106). I can find no reasonable explanation short
of tampering to account for this spontaneous remission in the big Euclid's brake
system.
Moreover, Burris' testimony lacked credibility. Although Jenkins and Marler
testified it is not uncommon for truck drivers to adjust slack adjusters, Burris was
reluctant to admit he knew how to make such adjustments. (Tr. 26-27, 36-37, 92,
22 1). However, both Burris and Ragland ultimately conceded they were familiar
with the maintenance and fimction of slack adjusters. In fact, Ragland told Marler
"he knew a little bit about repairing truc~s." (Tr. 200). (17 FMSHRC at 1337).
In my remand decision, consistent with the Commission's discussion of strict liability
and the fact that employee misconduct is not imputable to the operator, I imposed a nominal
penalty of $10.00 for each of the two citations. This de minimus civil penalty was based on the
extraordinary circumstances in this case.
In its current remand decision, in considering the issue of unwarrantable failure, the
Commission concluded, based on credibility findings, "that [Fort Scott] did not know about
the brake problems," and, that upon becoming aware of the brake problems, "[it] responded
by directing [Burris and Ragland] to park the trucks so the brakes could be examined."
19 FMSHRC _ , slip op. at 6. Thus, the Commission concluded it was not necessary to address
whether employee misconduct had occurred. Consequently, the Commission's remand, in effect,
left the employee misconduct determination undisturbed.
The Commission' s remand directs me to reconsider the appropriate civil penalty in light
of the six civil penalty criteria in section 110(i) of the Act. A discussion follows.

1594

1. Histoa of Violations
Fort Scott had a history of24 violations during the two year period preceding the
issuance of the citations in issue. (Gov. Ex 1). With the exception of two violations for which
$400.00 civil penalties were assessed, most, ·i f not all, of the remaining violations appear to be
non S&S based on numerous assessments ranging from $20.00 to $50.00. /d. Thus, the history
of violations is not a significant consideration in imposing the appropriate penalty in this case.
2. Size of BusinesS .
Fort Scott is a small operator.

Although an operator's fault, or lack thereof, is relevant in assessing a civil penalty,
employee misconduct is not imputable to Fort Scott. Southern Ohio Coal Co., 4 FMSHRC 1459,
1464 (August 1992); Asarco, Inc., 8 FMSHRC 1632, 1636 (November 1986), affd, 868 F.2d
1195 (1Oth Cir. 1989) . The Commission has concluded, based on credibility findings, that the
Secretary has not shown, by a preponderance of the evidence, that F~rt Scott knew or should
have known about the brake problems prior to Burris' and Ragland's complaints, or, that Fort
Scott ignored their complaints. 19 FMSHRC _,slip op. at 6, 7. Thus, there is no negligence
attributable to Fort Scott in this matter. There are no allegations that Burris and Ragland were
lacking in supervision, training or discipline. 4 FMSHRC at 1464; Western Fuels-Utah, Inc.,
10 FMSHRC 256, 261 (March 1988), aff'd 870 F.2d 71 1 (D.C. Cir. 1989). Therefore, the lack of
negligence attributable to Fort Scott is a significant mitigating factor.
4. Effect on Operator's Ability to Continue in Business
The $20.00 civil penalty will not interfere with Fort Scott's continued business
operations.
5. Gravity ofViolation
Defective brakes on multi-ton haulage trucks pose significant hazards to their occupants
and anyone in the vicinity of the defective vehicles. Thus, the gravity of the violations is
extremely serious.
Ordinarily, serious gravity, under the doctrine of strict liability, may warrant a significant
civil penalty. For example, in Birmingham Coal & Coke Company, Docket No. SE 96-99, I
denied the Secretary's settlement motion wherein the parties agreed to a reduction in proposed
penalties from $16,000.00 to $100.00 for two citations issued to an absentee operator for training
violations committed by an independent contractor. Birmingham Coal & Colre Company,
Docket No. SE 96-99 (order denying joint motion to approve settlement, May 28, 1996). The

15.95

Secretary's reductio-n in proposed penalties was based on the concept of strict liability and the
operator's lack of knowledge of the violations. In denying the settlement motion, I noted the
public interest in ensuring that operators contract with reputable independent contractors, and, to
this end, that strict liability without meaningful liability is no liability at all. Birmingham Coal &
Coke Company. Docket No. SE 96-99, slip op. at 3 (decision approving settlement, August 15,
1996).
In determining the. meaning and applicability of a statutory provision, the Commission
looks to "traditional tools of ... construction," including an examination of the intent of the
drafters. Amax Coal Company, 19 FMSHRC 470, 474 (March 1997) citing Local Union 1261,
UMWA v. FMSHRC, 917 F.2d 42,44-45 (D.C. Cir. 1990) (interpretation of Mine Act provision).
In this regard, the imposition of a significant strict liability civil penalty in Birmingham Coal is
consistent with the Supreme Court's analysis of the penalty provisions in the predecessor Federal
Coal Mine Health and Safety Act of 1969, that a "major objective of Congress was prevention of
accidents and disasters; the deterrence provided by monetary sanctions is essential to that
objective." National Indep. Coal Operators ' Ass'n v. Kleppe, 423 U.S. 388,401 (1976). Here,
however, giving recognition to equipment sabotage that was motivated by a desire to subject an
operator to Mine Act liability, turns the Mine Act on its head. The imposition of a significant
penalty in this case will neither minimize future accidents nor serve as a deterrence. On the
contrary, significant penalties in this case may only encourage future sabotage and result in
serious injury.
6. Good Faith Abatement
The evidence reflects the trucks were parked so their brakes could be examined when
Burris and Ragland informed Fort Scott of the brake problems. Thus, this penalty criterion is not
a basis for imposing a higher penalty.

ORDER
In the final analysis, a nominal penalty in this case is not imposed because there "is only"
strict liability. Strict liability may justify significant penalties. A nominal penalty is imposed in
this instance because it is consistent with the penalty criteria in section 11 O(i) of the Act, and,
more importantly, it is consistent with Congressional intent as well as the public interest.
Accordingly, the $10.00 civil penalty for each of the two citations in issue is reinstated. The
record reflects Fort Scott has paid the total $20.00 civil penalty for these citations.
Consequently, these proceedings ARE DISMISSED.

Jerold Feldman
Administrative Law Judge

1596

Distribution:
Colleen A. Geraghty, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson
Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail)
Gary W. Cullor, President, Fort Scott Fertilizer-Cullor, Inc., 20th & Sydney, Fort Scott, KS
66701 (Certified Mail)
Mr. James Cullor, Fort Scott Fertilizer-Cullor, Inc., 20th & Sydney, Fort Scott, KS 66701
(Certified Mail)
/mh

1597

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

SEP 2 9 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of BILLY BRANHAM,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. VA 97-9-D
NORT CD 96-07

TEDDY BEAR, INC.,

Mine ID 44-06745

No.2 Mine

Respondent

DECISION
Appearances: Javier Romanach, Esq., Office ofthe Solicitor, U.S. Department of Labor,
Arlington, Virginia, for t_he Complainant;
Greg Matney, Esq., Katz, Kantor, Perkins & Campbell, Tazewell, Virginia, for the
Respondent.
Before:

Judge Weisberger

This proceeding is before me based on a Complaint filed by the Secretary of Labor
("Secretary") on behalf of Billy·Branham alleging that Teddy Bear, Inc. ("Respondent")
discriminated against him in violation of§ 105(c){ 1) of the Federal Mine Safety and Health Act
of 1977. Pursuant to notice, the matter was heard in Abingdon, Virginia on June 4, 1997. After
the hearing, the parties entered into a discussion concerning settlement of the litigated issues.
The parties subsequently reached a settlement and, on September 19, 1997, filed the following
"JUDGEMENT":
I. Respondent Teddy Bear, Inc., is a corporation incorporated under the law~ of
the State of Virginia, qualified to do business in Virginia, and engaged in the
production of coal. It is the owner, lessee, or other person who operates. controls,
or supervises Mine No.2, and is therefore an "operator" as defined in Section 3(d)
of the Federal Mine Safety and Health Act of 1977 (hereinafter "the Mine Act"),
30 u.s.c. § 802(d).
2. The subject mine No.2, located in Cleveland, Russell County, Virginia, has
products that enter commerce or has operations or products that enter commerce
or has operations or products that affect commerce and is a "coal or other mine"
as defined in Section 3(h)(l) ofthe Mine Act. (Sic.)

1598

3. JoeL. Spurrier is the President of Teddy Bear, Inc., and is authorized to bind
the Respondent to the terms of this judgment.
4. Complainant, Billy D. Branham, worked as a scoop operator and tailpiece man
at the subject Mine No.2, and at all times during his employment at Teddy Bear,
Inc., he was a ·'~miner" as defined in Section 3(g) ofthe Mine Act, 30 U.S.C.
§ 802(g).
5. On May 31, 1996, Respondent Teddy Bear, Inc., terminated the Complainant's
employment at subject Mine No. 2.
6. On June 3, 1996, the Complainant filed a timely complaint with the Secretary
alleging discrimination.
7. On January 31 , 1997, the Secretary, on behalfofBilly D. Branham, pursuant to
the provisions ofSection l05(c)(2) ofthe Mine Act, 30 U.S.C. § 815(c)(2), filed a
complaint with the Federal Mine Safety and Health Review Commission alleging
violations of Section 105(c)(l) ofthe Mine Act, 30 U.S.C. § 815(c)(l).
Specifically, the Secretary alleged that the Respondent illegally discriminated
against the Complainant on May 31, 1996, when the Respondent fired the
Complainant and that the Respondent took such action against the Complainant
for his good faith refusal to work in conditions which he reasonably considered to
be unsafe and for his safety complaint to the Respondent, which are protected
activities under Section 105(c)(l) ofthe Mine Ace, 30 U.S.C. § 815(c)(l).
8. On March 4, 1997, the Secretary filed an Amended Complaint to include the
Secretary's prayer for the assessment of a civil penalty in the amount of$3,000
for the Respondent's alleged violation ofSection 105(c) ofthe Act, 30 U.S.C.
§ 815(c).
9. The Respondent's Mine No.2 had an annual tonnage of7,119 in 1995.
10. Respondent Teddy Bear, Inc., had an annual tonnage of7,480 in 1995.
11. The Respondent's Mine No. 2 had 92 inspection days for the period covering
the 24 months prior to 5/31/96.
12. The Respondent's Mine No.2 had 168 violations assessed against it by
MSHA for the period covering the 24 months prior to 5/31/96.
13. Teddy Bear herewith asserts that it is currently complying with and agrees in the

1599

future to comply fully with Section 105(c) of the Mine Act. In particular, Teddy Bear,
Inc., agrees that it is not and shall not in any manner discriminate against or otherwise
interfere with the exercise of the statutory rights of any miner, representative of miners,
or applicant for employment in any coal or other mine subject to the Mine Act because
such miner, representative of miners, or applicant for employment has filed or made a
complaint under or related to the Mine Act, including a complaint notifying Teddy Bear,
inc., its agents, or the representative of the miners at any coal or other mine, of an alleged
danger, or safety or health violation in a coal or other mine, or because such miner,
representative of miners, or applicant for employment has instituted or caused to be
instituted any proceeding under or related to the Mine Act or has testified or is about to
testify in any such proceeding, or because of the exercise by such miner, representative or
miners, or applicant for employment on behalf of himself or others of any statutory right
afforded by the Mine Act.
14. Respondent Teddy Bear, Inc., agrees to the payment ofbackwages and a civil
penalty in full resolution of the monetary disputes presented by this matter. The
parties have agreed to the payment of$2,560 by Teddy Bear, Inc., to the
Complainant in gross backwages, which resulted from Complainant's termination.
The payment to the Complainant shall be made within 30 days from the entry of
this judgment, and the payment shall be made by certified check, cashier's check,
or money order and shall be made payable to Billy D. Branham. In addition, the
Respondent has agreed to the full payment of the assessed penalty of $3000. This
$3000 payment shall be made within 30 days from the entry of this judgment, and
the payment shall be made by certified check, cashier's check, or money order and
shall be made payable to the Mine Safety and Health Administration. Both the _
$2,560 payment to the Complainant and the $3,000 payment to the Mine Safety
and Health Administration shall be delivered to Javier Romanach at the following
address: U.S. Department of Labor, 4015 Wilson Blvd., Room 516, Arlington,
VA 22203.
15. Respondent Teddy Bear, Inc., admits that payment of the aforementioned $3,000
penalty will not adversely (sic) its ability to continue in business.
16. Teddy Bear, Inc., agrees to expunge from Billy D. Branham's personnel file,
and all other records maintained by it or its employees, all references to the events
underlying and/or related to the Section 105(c) complaint filed by Mr. Branham.
17. Based upon Billy Branham's satisfactory employment history with Teddy
Bear, Inc., neither Teddy Bear, Inc., nor any of its agents or employees will
provide any negative references concerning Mr. Branham to any prospective
employer. Under no circumstances will Teddy Bear, Inc., or its officers, agents or
principals inform any prospective employer of the Section 105(c) complaint filed
by Mr. Branham, the circumstances and events underlying and/or related to this

1600

complaint, nor any other instance in which Mr. Branham may have made safety
complaints. or exercised protected rights under the Mine Act.
18. Teddy Bear, Inc., agrees to post a notice at the subject Mine No. 2 stating that
Teddy Bear, Inc., will not violate.Section 105(c) of the Act.
19. Each party hereby agrees to bear its own fees and other expenses incurred by
such party in connection with any stage of this proceeding.
20. This agreement constitutes the full and complete understanding of the parties
with respect to this matter.
21. The complainant has indicated to counsel for MSHA, and by his signature
below, that he has reviewed the terms of this agreement and that he is satisfied
with the terms of this agreement and has entered into said agreement ofhis own
free will.
22. All parties to this Judgment represent and warrant that the person executing
the consent to the entry of this Judgment on their/its behalf is duly authorized to
do so.
On the basis of the matters contained herein, I conclude and find that the agreements
described in the aforementioned Judgment are appropriate under the criteria set forth in section
llO(i) of the Act and find that they satisfy the deterrent intent ofthe Mine Act and are in the
public interest.
In view of the foregoing, IT IS HEREBY ORDERED as follows:
1. Respondent Teddy Bear, Inc., shall pay $2,560 to Complainant Billy D. Branham in
satisfaction of his claims in this proceeding.
2. Respondent Teddy Bear, Inc., shall pay a civil penalty assessment of$3,000 to MSHA
in satisfaction of the alleged violation in these proceedings.
3. The Respondent shall comply forthwith with the terms of the foregoing Judgment. All
of the aforementioned payments shall be made by the Respondent within 30 days of the date of
this decision and order, and upon full compliance with the foregoing Judgment, this matter is
DISMISSED, each party to bear its own fees and other expenses incurred in connection with any
stage of this proceeding.

_iL_~

'1\vram Weisberger
Administrative Law Judge

1601

Distribution:
Javier Romanach, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Room 516, Arlington, VA 22203 (Certified Mail)
Greg Matney, Esq., Katz, Kantor, Perkins & Campbell, 996 Ben Bolt, Tazewell, VA 24651
(Certified Mail)

/It

1602

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W. 6™ FLOOR
WASHINGTON D. C. 20006-3868

SEP 2 9 1997
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-370
A. C. No. 48-00977-03525

v.

Black Thunder Mine
THUNDER BASIN COAL COMPANY,
Respondent

DECISION ON REMAND

Before:

Judge Merlin

On September 5, 1997, the Commission remanded this case for a reassessment of civil
penalties. The parties have waived the filing of briefs.
A citation dated February 22, 1994, issued under section 104 (a) of the Mine Act charged
the operator with a violation of30 C.F.R. § 40.4 for refusing to.post a form designating two
officials of the United Mine Workers who were not employees ofthe operator, as miner
representatives under section 103(f) ofthe Mine Act. 1 The abatement time allowed by the
citation was 15 minutes, and an order under section I 04(b) of the Act for failure to abate was
issued on the same day as the citation. However, MSHA did not begin to assess a daily penalty
until March 27, 1994, two days after a Commission judge had denied the operator's request for
temporary relief. The operator sought temporary relief from the Commission and did not abate
the violation until I 3 days later when the Commission denied relief.
In its decision the Commission found that the judge's failure to assess a penalty for the
initial violation set forth in the citation amounted to legal error that necessitated a remand.
Section I I O(i) of the Act, 30 U.S.C. § 820(i), identifies six factors which must be taken into
account in determining the appropriate amount of penalty. Four of these factors are the subject
of stipulations which have been accepted by the Commission. Accordingly, I find that the
operator is large in size, imposition of a penalty will not affect its ability to continue in business

1

The operator's argument that non employees cannot serve as a miner representatives was
eventually rejected by the Court of Appeals for the Tenth Circuit. Thunder Basin v. Fed. Mine
Saf. and Health Rev. Com.,56 F.3d I275 (1995).

1603

and the violation was non serious. I also find that the history of violations for the two years
preceding issuance of the citation consisted of23 violations and no violation of the cited
regulation. The assessment sheet for the citation shows that the operator had 32 inspection days
in the two year period and less than one violation per inspection. Considering the operator's
large size this is a good history.
The record shows that the citation was given after the operator had requested issuance of
a citation so that its refusal to accept non employees as miner representatives could be adjudicated and resolved. As the Solicitor's brief to the Commission acknowledges, iri issuing the
citation the Mine Safety and Health Administration was cooperating with the operator in
attempting to move the matter through the administrative and judicial review process as
expeditiously as possible. Clearly, the operator knowingly and intentionally violated the Act by
refusing to post the names. An intentional violation usually connotes high negligence. However,
in this instance the citation was issued as a result of an agreement between the parties to obtain a
prompt ruling on the issue presented. Under these limited circumstances the operator's degree of
negligence is mitigated and I find negligence was moderate with respect to the issuance of the
citation.
The remaining factor is whether or not the operator demonstrated good faith in attempting
to achieve rapid compliance after notification of the violation. Abatement required only the
posting of the designation. The 15 minutes allowed was sufficient to post the names. I find there
was no good faith abatement. The circumstances relating to the failure to abate are set forth
more below in the analysis of the withdrawal order.
Turning to the withdrawal order, I again accept the stipulations of the parties and in
accordance therewith find that the operator was large in size, imposition of a penalty will not
affect its ability to continue in business, the violation was non serious and history of previous
violations was good.
Evaluation of negligence with respect to the order involves circumstances very different
from those attendant upon issuance of the citation. There is no dispute that the operator could
have abated within the time allowed. However, it intentionally chose not to do so and instead
sought temporary relief. The operator knew from the outset that MSHA did not agree to its
refusal to abate. The MSHA district manager wrote the operator that he intended to recommend
a daily penalty unless abatement occurred by March 1, 1994. However, the operator pursued its
application for temporary relief which was denied on March 25, 1994, by a Commission judge.
Two days after the judge's denial of relief, the MSHA Director of Assessments wrote the
operator that a penalty of $2,000 per day was being imposed until the violation was abated.
Nevertheless, the operator appealed the denial of temporary relief to the Commission. Only
when the Commission denied relief thirteen days later did the operator abate. Accordingly, the
operator's failure to abate was intentional and its course of conduct was taken with the full
knowledge that MSHA did not approve.

1604

There is no question that the operator had the right to seek temporary relief afforded by
the statute and regulations. 30 U.S.C. § 815(b)(2), 29 C.F.R. § 2700.46. However, the existence
of that right does not mean it can be exercised without consequences, particularly when the
·~ourse of action selected by the operator poses a conflict with the fundamental statutory scheme.
The Mine Act vests enforcement in the Secretary. Thunder Basin Coal Co. y. Reich, 510 U.S.
200 (1994); Mechanicsville Concrete. Inc., 18 FMSHRC 877,879 (June 1996). Under Sections
104(b) and 110(b), 30 U.S.C. §§ 814(b), 820(b), the Secretary is given the authority to set times
for abatement, determine whether there has been abatement, issue withdrawal orders and propose
civil penalties to obtain· abatement. The use of these powers, which are critical to proper
enforcement, cannot be compromised or inhibited by an operator's decision to pursue adjudicative or judicial avenues of relief. Otherwise, operators, and not the Secretary, will decide the
times and terms of enforcement.
In light of the foregoing, I conclude that the operator's intentional and knowing refusal to
abate constituted high negligence. Eastern Associated Coal Corp., 13 FMSHRC 178, 187
(February 1991); Mettiki Coal Corporation, 13 FMSHRC 760,770 (May 1991); ~Also,
Tanglewood Energy, Inc., 18 FMSHRC 1315, 1319-1320 (August 1996). The same considerations compel the conclusion that the operator intentionally and knowingly failed to abate the
violation in a timely manner.
l take careful note that the Secretary's proposed penalty is $2,000 per day. The Secretary's
regulations state that the formula used to determine proposed penalty amounts is based upon the six
factors of section IIO(i). 30 C.F.R. § 100.3. Special assessments· also take into account the six
factors. 30 C.F.R. § I 00.5. However, the Secretary is not required to explain how she arrives at a
proposed penalty. Therefore in this case there is no way to know how the Secretary viewed and
weighed each of the six criteria. 30 U .S.C. § 820(i); See Als,Q, Conf. Rep. No. 461, 95'h Cong.,
1st Sess. 58, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95'h
Cong. 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1336
(1978); Redland Genstar Incorporated, 19 FMSHRC 442,446 (February 1997).
In any event, it is well established that penalty proceedings before the Commission and
its judges are de novo and that the Secretary's proposed penalties are not binding on the Commission and its judges. Sellersburg Stone Company, 5 FMSHRC 287, 290-29 (March 1983 ),
ruDl, 736 F.2d 1147 (71h Cir. 1984); U.S. Steel Mining Co., 6 FMSHRC 1148, 1150 (May 1984);
Missouri Rock. Inc., 11 FMSHRC 136, 140 (February 1989); Doss Fork Coal Company,
18 FMSHRC 122, 130 (February 1996); Wallace Brothers Inc., 18 FMSHRC 481, 483-484
(Aprill996); Mechanicsville Concrete. Inc., 18 FMSHRC 877,881 (June 1996). As the
Commission stated in its remand order in this case, Commission judges are accorded broad
discretion in assessing penalties under the Act and these assessments must reflect proper
consideration of the six criteria set forth in section 110 (i).
As set forth herein, I have considered and made findings with respect to the six criteria.
It is my reasoned judgment that a penalty of $350 is an appropriate penalty for the underlying
violation. I believe this amount is consistent with lack of gravity, moderate negligence and good

1605

history. In addition, iri reaching this amount I have taken into account the operator's large size
and ability to continue in business. Finally, I am cognizant of the operator's failure to timely
abate, a factor that also is central to reaching an appropriate penalty amount for the order.
Upon a review of the six criteria it is my reasoned judgment that a daily penalty of $1 ,000
per day is suitable for the violation cited in the 104(b) order. In my view this amount recognizes
the non serious nature of the violation and the operator's good prior history. However, it also is
premised on the finding of high negligence. I further believe this fine is consistent with the
operator's large size and ability to continue in business. Finally, the failure to timely abate after
issuance of the order has been weighed in the balance. The substantial penalty being assessed is
sufficient to have the desired deterrent effect.

ORDER
It is ORDERED that a penalty of$350 be assessed for Citation No. 3589040.

It is further ORDERED that a penalty of $1,000 a day be assessed for the operator' s
failure to comply with Order No. 3589101 for a total penalty of$13,000.
It is further ORDERED that the operator pay these penalties within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
Di.stribution: (Certified Mail)
Colleen A. Geraghty, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 400, Arlington, VA 22203
Margaret A. Miller, Esq., Office of the Solicitor, U. S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716
Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania Avenue, N.W., Washington, DC
20004
Thomas F. Linn, Esq., Atlantic Richfield Company, 555 171h Street, 201h Floor, Denver, Co
80202
/gl

1606

ADMINISTRATIVE LAW JUDGE ORDERS

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

SEP
LAUREL RUN MINING COMPANY,
Contestants

2 1997
CONTEST PROCEEDINGS
Dock~t No. WEVA 94-347-R

v. .

Citation No. 3964761; 8/1/94

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

Docket No. WEV A 94-348-R
Order No. 3964762; 8/1/94
Docket No. WEVA 94-349-R
Order No. 3964763; 8/1/94
Docket No. WEVA 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
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 96-177
A. C. No. 46-07770-03575
Holden 20-DB Mine

LAUREL RUN MINING COMPANY,
Respondent

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

v.

CIVIL PENALTY PROCEEDING
Docket No. WEV A 96-176
A. C. No. 46-07770-03576A
Holden 20-DB Mine

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

1607

ORDER DENYING THE SECRETARY'S
MOTION FOR RECONSIDERATION
These proceedings involve citations issued as a consequence ofMSHA's investigation
following a fatal roof fall that occurred at Laurel Run Mining Company's Holden 20-DB Mine
on July 25, 1995. Before me for consideration is the Secretary's August 5, 1997, Motion for
Reconsideration of the June 9, 1997, Order Granting Respondents' Motion to Strike two of the
Secretary's witnesses (19 FMSHRC 1229), 1 the respondents' August 21, 1997, Opposition, and,
the Secretary's August 27-, 1997, Response. The June 9 Order was issued after the Secretary,
relying on the miner witness privilege in Rule 62,2 refused to disclose the identity of these
witnesses to the respondents prior to two days prior to the scheduled hearing.
As a threshold matter, I am not persuaded by the respondents' opposition that the
Secretary's request for reconsideration is untimely. The presiding judge has broad discretion
in discovery matters, and I am not unmindful of the serious nature of the sanctions imposed.
Accordingly, the respondents' request that the Secretary's Motion for Reconsideration should be
denied as untimely IS DENIED. The merits of the Secretary's request for reconsideration are
discussed below.

Backwund
On May 28, 1997, and June 2, 1997, I issued Orders, in response to the Respondents'
motion to compel, compelling the Secretary to disclose the names of all witnesses she intended
to call in these proceedings who formerly were employed by Laurel Run Mining Company but
who are no longer working as "miners" in the mining industry. The Orders, noting the plain
meaning of the operable term "a miner" in Commission Rule 62, rejected the Secretary's overly
broad interpretation that the miner witness privilege should apply to anyone who ever worked in

1

The underlying May 28, 1997, Order compelling disclosure was issued after the subject
witnesses were identified in camera. This Order denied the respondents' Motion to Compel with
respect to two miners that are currently employed as miners by other operators. Although the
May 28 Order initially required the Secretary to disclose the names of three former miner
witnesses, the Secretary subsequently decided to call only two of these witnesses. Accordingly,
two witnesses have been stricken in these matters.
2

Commission Rule 62, 29 C.F .R. § 2700.62 provides:
A judge shall not, until two days before a hearing, disclose or order
a person to disclose to an operator or his agent the name of a miner
who is expected by the judge to testify or whom a party expects to
summon or call as a witness.

1608

a mine, regardless of the duration of past mining employment and the relevancy and timeliness of
such employme~t to the case at hand.
The Secretary filed a Petition for Interlocutory Review with the Commission on June 5,
1997. The Commission denied the Secretary's petition on June 6, 1997, on the ground that the
Secretary failed to demonstrate that "immediate review may materially advance the fmal
disposition" of these proceedings. In denying the Secretary's petition, the Commission noted
that it ..takes no position on the question of the definition of'miner' under Commission
Procedural Rule 62,29 C.F.R. § 2700.62." Thus, the Commission preserved the Secretazy's ri~ht
of appeal on this issue. The Commission's June 6 Order, in effect, left undisturbed the May 28
and June 2, 1997, Orders granting the respondents' Motion to Compel.
The Secretary could have avoided sanctions in this case, and retained her right to appeal
this discovery issue, by disclosing the identity of her former miner witnesses on Monday,
June 9, 1997, the first business day following the Commission's June 6 denial of interlocutory
review. Surely disclosing the identity of these former miner witnesses six days prior to trial,
rather than two days prior to trial, was not prejudicial to the Secretary's case and would not have
placed these witnesses in jeopardy.3 Instead, on June 6, 1997, shortly after the release of the
Commission's Order denying review, the Secretary filed a Response to the Court's Order
compelling the Secretary to identify her former miner witnesses. In her response, despite the
Commission's denial of her Petition for Interlocutory Review, the Secretary stated she
"respectfully refuses to disclose the identity of her miner witnesses unti19:00 a.m. on Friday,
June 13, 1997 (emphasis added)." Sec'y's Response, p. 2.
The respondents filed a Motion for Sanctions on June 9, 1997, based on the Secretary's
continued refusal to disclose her non-miner witnesses. The respondents sought dismissal of
these proceedings with prejudice. In the alternative, the respondents requested that the
Secretary's undisclosed witnesses be stricken.
On June 9, 1997, I denied the respondents' motion to dismiss. Noting that the Secretary's
continued refusal to abide by the May 28 and June 2, 1997, Orders left me no other alternative,
the June 9, 1997, Order granted the respondents' motion to strike the three undisclosed
witnesses.

3

The subject witnesses have not been employed by Laurel Run Mining Company for
over two years and are not currently employed in the mining industry. These witnesses provided
statements to MSHA in the presence of the respondents during MSHA's accident investigation.
These witnesses were also deposed by Laurel Run's counsel in a related civil suit. In short, it is
undisputed that the identity of these individuals, as well as their anticipated testimony, is well
known to the respondents. Thus, even if the Secretary prevailed on appeal on this Rule 62 issue,
the subject June 2,1997, Order compelling disclosure would be harmless error.

1609

The hearing in these proceedings commenced on June 17, 1997, in Charleston,
West Virginia. After four days of hearings the proceedings were recessed and scheduled for
resumption on September 9, 1997. On August 5, 1997, the Secretary filed a Motion for
Reconsideration of the June 9 Order granting the respondents' Motion to Strike. In her motion,
the Secretary represents she now is prepared to immediately disclose the names of the subject
witnesses.
The Secretary, citing the respondents' June 9 motion to strike, asserts her immediate
disclosure prior to resuming the trial will remove any alleged prejudice by the respondents that
they are unable "to adequately prepare for the hearing without the disclosure of the Secretary's
witnesses." The Secretary also asserts that the testimony of the stricken witnesses is crucial and
necessary for a complete record. Finally, the Secretary relies on a January 22, 1997, Order issued
by Judge Manning as support for her interpretation that former miners are entitled to the miner
witness privilege in Rule 62. See 19 FMSHRC 220.
Discussion
The Secretary's current willingness to identify the stricken witnesses during this recess
period is too late. The respondents are entitled to the timely disclosure of all of the Secretary's
intended witnesses prior to trial in order facilitate their preparation.
With respect to the remaining contention of the Secretary, Judge Manning ruled witnesses
were covered under the Rule 62 miner witness provisions even if they were no longer employed
by the respondent operator. However, Judge Manning's decision does not reflect whether the
witnesses granted the miner witness privilege under Rule 62 were employed by other operators in
the mining industry. 4 Judge Manning's decision also does not address the distinction between
the informant's privilege in Rule 61 that protects anonymity5 and the miner witness privilege in
Rule 62 that sets the time period for disclosin~ the identity of miner witnesses.
As discussed in the May 28 Order, the informant's privilege is .iritended to encourage
individuals to discuss alleged Mine Act violations with government officials by protecting their
anonymity, and, thus, minimizing their exposure to retaliation or harassment. Although Rule 61
limits the applicability of the informant's privilege to miners, the Commission, in the interest of

4

Judge Manning concluded, "[i]t appears that some of the Secretary's miner witnesses in
these cases are no longer employed [by the respondent]." 19 FMSHRC at 222.
5

Commission Rule 61, 29 C.F.R. § 2700.61 provides:
A judge shall not, except in extraordinary circumstances, disclose
or order a person to disclose to an operator or his agent the name of
an informant who is a miner.

1610

encouraging the free flow of information to MSHA personnel by protecting anonymity, has
concluded the informant's privilege applies to non-miners as well. Sec y o/blo Logan v. Bright
Coal Co., 6 FMSHRC 2520,2524 (November 1984).
Here, the Secretary seeks to extend the broad application of the informant's privilege in
Rule 61, which is applied to anyone regardless of employment status, to the miner witness
privilege in Rule 62. An informant's privilege is predicated on anonymity. Once an informer is
designated by the Secretary as an intended witness, that individual ceases to be an anonymous
informant and becomes a witness.
Once an individual is designated as a witness, Rule 62 confers upon the Secretary the
privilege to delay disclosing the witness until two days prior to the scheduled hearing if the
witness is "a miner." The Secretary is entitled to the miner witness privilege even if the witness
is employed by an operator that is not the respondent. Application of this privilege is consistent
with Congressional concern regarding the possibility of retaliation against miners who participate
in enforcement proceedings brought by the Secretary pursuant to the Mine Act. Bright, 6
FMSHRC at 2524. However, if the rationale for the privilege does not exist, the privilege is not
applicable. There is little potential for retaliation by a mine operator against a witness identified
by the Secretary during the brief pretrial witness list exchange period if that witness is no longer
employed in the mining industry.6
Finally, the informant's privilege is a qualified privilege. For, in the final analysis, due
process entitles the respondent to confront witnesses. Thus, even in instances where complete
anonymity is desired, when disclosure is essential to the fair determination of a case, the
informant's privilege must yield or the case may be dismissed. Roviaro v. United States, 353
U.S. 53, 60-61 (1957). In such cases, the court must determine whether a party's need for
disclosure outweighs the public interest in maintaining the privilege. Bright, 6 FMSHRC at 2526.
So too, the miner witness privilege is a qu~lified privilege. 7 In this instance, given the
Commission's denial of interlocutory review, compelling the Secretary's disclosure of intended
witnesses on Monday, June 9, rather than Friday, June 13, 1997, particularly when the identity
and expected testimony of the prospective witnesses are known to the respondents, does not

6

There may be extraordinary circumstances, not present here, where the Secretary may
invoke the miner witness privilege for someone who is not currently a miner, such as for a
recently laid-off miner subject to recall. However these cases can be dealt with on a-case-bycase basis and do not warrant extending the miner witness privilege to anyone who ever worked
as a miner.
7

For example, disclosure of miner witnesses two days prior to trial in a case where the
Secretary sought to call numerous miner witnesses, may preclude the operator from adequately
preparing for trial. Upon such a showing, the miner witness privilege must yield to due process:

1611

diminish the public interest in maintaining the miner witness privilege, even if the privilege was
applicable in these proceedings.
The necessity for striking a witness, particularly in this case involving a fatality,
is unfortunate. However, it is fundamental that orders issued by a presiding judge compe~ing
discovery are not advisory in nature, or subject to the approval of the party seeking to avoid
disclosure. A judge's discovery order is, however, subject to appellate scrutiny. The Secretary
appealed to the Commission, and in a divided opinion, did not prevail. 8 Our system oflaws
requires obedience to the majority opinion rather than the dissenting opinion. The government
must be held to a high standard of conduct in judicial proceedings. If the record is incomplete, it
is due to the actions of the Secretary.
Rule 59, 29 C.F.R. § 2700.59, authorizes the presiding judge "to make such orders with
regard to [a failure to comply with an order compelling discovery] as are just and appropriate."
Under the circumstances of this case, striking the Secretary's witnesses is not only just
and appropriate, it is essential to the integrity of the judicial process.

ACCORDINGLY, the Secretary's Motion for Reconsideration IS DENIED. The .
hearing in these proceedings will resume as scheduled at 9:00a.m., Tuesday, September 9
through Friday, September 12, 1997, if necessary, in Charleston, West Virginia, at the
following location:

Kanawha County Courthouse
409 Virginia Street East
County Commission Courtroom, First Floor
Charleston, West Virginia

Administrative Law Judge

8

In fact, the Commission, in effect, granted the relief sought by the Secretary by
preserving the Secretary's right of appeal on the Rule 62 question.

1612
ou .s . GOVER.'IIMENT PRINTING OFFICE: 1997-432-922/83378