APRIL 2005

COMMISSION DECISIONS AND ORDERS
04-18-2005 James Carney Construction
04-20-2005 Jim Walter Resources, Inc.
04-20-2005 DiCaperl Minerals Corporation
04-26-2005 Georges Colliers, Incorporated

WEST 2005-51-M
2005-182
SE
WEST 2005-216-M
EAJ2002-2

Pg.353
Pg.356
Pg.359
Pg.362

CENT 2004-211-M
WEST 2003-268-M
WEST 2004-397-M

Pg. 379
Pg.392
Pg.395

KENT 2001-23-D
WEST 2004-264-DM
KENT 2004-164

Pg.398
Pg.400
Pg.414

... -..........

ADl\11NISTRATIVE LAW .JUDGE DECISIONS
04-07-2005 Weirich Brothers, Inc.
04-07-2005 CKC Materials Division
04-15-2005 Harvey W. Buche Road Building Inc.
04-22-2005 Sec. Labor on behalf of Mark Gray v.
North Star Mining, Inc. & Jim Brummett
04-28-2005 Vernon Holden v. Ross Island Sand & Gravel
04-29-2005 Lone Mountain Processing, Inc.

i

APRIL 2005

,

No cases were filed in which Review was granted during the month of April

No cases were filed in which Review was denied during the month of April

ii

COMl\fiSSION DEOSIONS AND ORDERS

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

April 18, 2005
SECRETARY OF LABOR,
N.1INE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 2005-51-M

JAMES CARNEY CONSTRUCTION

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
DIRECTION FOR REVIEW AND ORDER
BY THE CO:M1v1ISSION:
This civil penalty proceeding arises under the -Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act"). On January 28, 2005, Chief Administrative
Law Judge Robert Lesnick issued to James Carney Construction ("Carney") an Order to Show
Cause for failing to answer the Secretary of Labor's petition for assessment of penalty. On
March 21, 2005, Chief Judge Lesnick issued an Order of Default dismissing this civil penalty
proceeding for failure to respond to the show cause order.
On March 28, 2005, the Commission received a handwritten correspondence from
Carney's owner, Jim Carney, which we construe to be a timely petition for discretionary review.
In that petition, Jim Carney states that he did not receive the show cause order and that he
opposes the citation on the merits. Letter at 1. The Secretary does not oppose the petition for
review and states that the case should be remanded to the judge so that the parties can litigate
whether there was a violation.
The judge's jurisdiction over this case terminated when he issued his decision on March
21, 2005. 29 C.F.R. § 2700.69(b). 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.~.
§ 2700.70(a). We deem Carney's correspondence to be a timely filed petition for review, which
we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988).

27 FMSHRC 353

In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) in the Federal Rules of Civii Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on the basis of inadvertence or mistake. See 29
C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the
Federal Rules of Civil Procedure"); Highlands Mining & Processing Co., 24 FMSHRC 685, 686
(July 2002). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of good cause for a failure to timely respond, the case may be
reopened and appropriate proceedings on the merits permitted. See Coal .Prep. Servs., Inc. , 17
FMSHRC 1529, 1530 (Sept. 1995).
Based on the present record, it is not clear whether Carney received the show cause order.
In the interest of justice, we vacate the judge's March 21 order and remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for Carney's
failure to timely respond to the judge's show cause order, and for further proceedings as
appropriate. See RBS, Inc., 26 FMSHRC 751 (Sept. 2004).

27 FMSHRC 354

Direction
James Carney, Owner
James Carney Construction
P.O. Box 928
Glasgow, MT 59230
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, Suite 9500
Washington, D.C. 20001

27 FMSHRC 355

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

April 20, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2005- 182
A.C. No. 01-01322-47081

V.

JIM: WALTER RESOURCES, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On March 3, 2005, the Commission received from Jim
Walter Resources, Inc. ("JWR") a letter from the company's counsel that we construe as a
motion to reopen a penalty assessment that became a final order of the Commission pursuant to
section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 4, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment (A.C. No. 01-01322-47081) to JWR's No. 5
Mine in Tuscaloosa, Alabama. In its motion, JWR states that it received MSHA's proposed
assessment on January 14, 2005, and that on February 7, 2005, it placed in the mail a contest of
several of the orders and citations included in the proposed assessment. Mot. at 1. JWR asserts,
however, that the contest was mistakenly sent to the Department of Labor' s Division of Coal
Mine Worker's Compensation rather than MSHA's Office of Assessments. Id. The contest was
returned to JWR by February 14, 2005, but by that time, the proposed assessment had become a
final Commission order. Id. The Secretary states that she does not oppose JWR' s request for
relief.
27 FMSHRC 356

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed JWR' s motion, in the interests of justice, we remand this matter to the
Chief Administrative Law Judge for a determination of whether good cause exists for JWR' s
failure to timely contest the penalty proposal and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission' s Procedural Rules, 29 C.F.R. Part 2700.

'~
·~
~
MichaelF·~

27 FMSHRC 357

Distribution
Guy R. Hensley, Esq.
Jim Walter Resources, Inc.
P.O. Box 133
Brookwood, AL 35444
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, Suite 9500
Washington, D.C. 20001

27 FMSHRC 358

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

April 20, 2005
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
AD:rvIINISTRATION (MSHA)
Docket No. WEST 2005-216-M
A.C. No. 05-00438-47837

v.

DICAPERL MINERALS CORPORATION

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On March 8, 2005, the Commission received from Dicaperl
Minerals Corporation ("Dicaperl") a motion made by counsel to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On September 3, 2004, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Citation No. 6300457 to Dicaperl's El Grande Plant in
Antonito, Colorado. Dicaperl timely contested the citation, which is currently the subject of
Docket No. WEST 2004-51 1-RM, on stay before Commission Administrative Law Judge
Richard Manning. On January 12, 2005, MSHA issued to Dicaperl a proposed penalty
assessment for Citation No. 6300457 (A.C. No. 05-00438-47837). In its motion, Dicaperl states
that the proposed assessment was subsequently misplaced and was not forwarded to counsel in
time for the proposed penalty to be timely contested. Mot. at 2. The Secretary states that she
does not oppose Dicaperl' s request for relief.
27 FMSHRC 359

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section l05(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR" ). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Dicaperl' s motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Dicaperl's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

27 FMSHRC 360

Distribution
Karen L. Johnson, Esq.
Jackson Kelly, PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22ndFloor
Arlington, VA 22209

John Rainwater, Esq.
Office of the Solicitor
U.S. Department of Labor
P.O. Box 46550
Denver, CO 80201-6550
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, Suite 9500
Washington, D.C. 20001

27 FMSHRC 361

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

April 26, 2005

SECRETARY OF LABOR,
:M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. EAJ 2002-2

GEORGES COLLIERS,
INCORPORATED

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
DECISION
BY THE COMMISSION:
This case involves an application for an award of attorney's fees and other expenses by
Georges Colliers, Inc. ("GCf'), pursuant to the Equal Access to Justice Act ("EAJA"), 5 U.S.C.
§ 504, on the grounds that the Secretary of Labor's demands were substantially in excess of the
decision of the judge and unreasonable when compared to that decision. The matter was
previously before the Commission, which vacated and remanded the decision of the
administrative law judge. Georges Colliers, Inc., 26 FMSHRC 1 (Jan. 2004) ("Georges Colliers
f'), vacating and remanding 24 FMSHRC 572 (June 2002) (ALT) ("ALI f'). On remand, the
judge concluded that the penalties proposed by the Secretary were neither excessive nor
unreasonable and that, therefore, GCI was not entitled to fees under the EAJA. Georges Colliers,
Inc. , 26 FMSHRC 371, 376 (Apr. 2004) (ALT) ("ALJ If'). GCI appealed the judge's
determination, and the Commission issued a direction for review limited to the issues raised by
the judge's remand decision.

27 FMSHRC 362

I.
Factual and Procedural Background
A.

The Mine Act Proceeding

GCI began operations in the early 1990's when it took over three coal mines of two
financially troubled Oklahoma coal operators. 26 FMSHRC at 2. In 1998, Craig Jackson
became GCI' s president. Id. A more complete summary of the background facts is found in the
judge's decision in the underlying Mine Act proceeding. Georges Colliers, Inc., 23 FMSHRC
1346 (Dec. 2001) (AU).
The inspections giving rise to the Mine Act proceeding began in November 1998 and
continued until July 2000. See id. at l 392-1416. Ultimately, the Mine Act proceeding involved
more than 50 dockets that included 559 citations issued between 1998 and 2000. 1 26 FMSHRC
at 2. GCI stipulated with the Secretary to all issues raised by the citations and penalties except
whether the amount of the proposed penalty assessments would affect GCI' s ability to continue
in business. Id. Subsequently, a hearing was held on this issue on April 10-12, 2001. Id.
After weighing all the penalty criteria and the evidence relating to the effect of the
proposed penalties on GCI' s ability to continue in business, the judge assessed penalties totaling
$72,398, reduced from the Secretary' s proposed penalties of $332,701. Id. at 1395, 1416.
Neither GCI nor the Secretary appealed the judge's decision to the Commission.
B.

The EAJA Proceeding ("AL.If')

On January 25, 2001, GCI filed its Application for Fees and Expenses in the amount of
$45,019.36, pursuant to 5 U.S.C. § 504(a)(4). 26 FMSHRC at 3; GCI EAJA Appl. at 10. In
support of its application, GCI asserted that the Secretary's demands were excessive, as
evidenced by the judge's 77% to 80% reductions in the Secretary's proposed penalties, and
unreasonable when compared to the judge's decision. 2 The Secretary opposed the application,

1

Also included in the Mine Act proceeding were nine civil penalty assessments issued to
three agents of GCI who were charged under section l lO(c), 30 U.S.C. § 820(c), for knowingly
violating various safety standards. 26 FMSHRC at 2. The violations and penalties associated
with these individuals are no longer involved in the EAJA proceeding. Id. at 5 n.4.
2

Section 504(a)(4) of EAJA provides:

If, in an adversary adjudication arising from an agency action to
enforce a party's compliance with a statutory or regulatory
requirement, the demand by the agency is substantially in excess of
the decision of the adjudicative officer and is unreasonable when
27 FMSHRC 363

stating that GCI did not submit financial information during the penalty assessment phase of the
proceeding. Sec. Opp'n to Appl. at 1-2. The Secretary asserted that during subsequent
settlement negotiations GCI requested either complete removal of penalties or imposition of
nominal penalties, neither of which were pennitted under the Mine Act. Id. at 2-3. The
Secretary further argued that the applicants committed willful violations of the Mine Act and
acted in bad faith. Id. at 5-8. Finally, the Secretary argued that penalties were not unreasonable
when compared with the judge's decision and that demands by the Mine Safety and Health
Administration ("MSHA") were not substantially in excess of the penalties assessed. Id. at 8-17.
The judge denied the EAJA application on June 14, 2002. 24 FMSHRC at 578. GCI
filed a petition for discretionary review of the judge's decision and we granted that petition.
C.

The Commission's Decision ("Georges Colliers!'')

The Commission vacated the judge's decision and remanded the proceeding for further
consideration. 26 FMSHRC at 16. The Commission concluded that the judge had applied the
incorrect legal test of "substantial justification," rather than evaluating the Secretary's penalty
proposals under section 504(a)(4) of EAJA, 5 U.S.C. § 504(a)(4), to determine whether they
were excessive and unreasonable.3 ld. at 8-9. On remand, the Commission instructed the judge
to determine whether the Secretary's proposed penalties were "substantially in excess" of the
penalties finally assessed in the Mine Act proceeding. Id. at 9-10. The Commission further
instructed the judge to consider whether the government's demand was reasonable when
compared with the judge's decision in the Mine Act proceeding. Id. at 10-11. Guided by its
decision in L & T Fabrication & Constr., Inc., 22 FMSHRC 509 (Apr. 2000), the Commission
stated that, in examining the reasonableness of the Secretary's demand, a judge must ascertain
whether she matched the penalties "to the actual facts and circumstances [of] the case." Id. at 11
(citation omitted). The Commission directed the judge on remand to consider whether the
Secretary responded to GCI' s submission of financial data indicating whether GCI' s payment of
the proposed penalties would have affected its ability to remain in business. Id. at 14. Finally,

compared with such decision, under the facts and circumstances of
the case, the adjudicative officer shall award to the party the fees
and other expenses related to defending against the excessive
demand, unless the party has committed a willful violation of law
or otherwise acted in bad faith, or special circumstances make an
award unjust. . ..

5 U.S.C. § 504(a)(4) (emphasis added). The term "demand" is defined as "the express demand
of the agency which led to the adversary adjudication." 5 U.S.C. § 504(b)(l)(F).
3

The Commission noted that this proceeding involved only the second claim presented
to it under the 1996 amendments to EAJA, the first claim being one decided by the Commission
in L & T Fabrication & Constr., Inc., 22 FMSHRC 509 (Apr. 2000). 26 FMSHRC at 8.
27 FMSHRC 364

the Commission instructed the judge, in the event that he determined the proposed penalties were
excessive and unreasonable, to examine whether GCI committed willful violations or acted in
bad faith, or whether special circumstances made an award unjust. Id. at 15.
D.

The Judge's Decision on Remand ("ALI If")

In his decision, the judge initially addressed whether, under the Commission's decision in
L & T Fabrication, the proposed penalties were substantially in excess of the amounts ultimately
imposed. 26 FMSHRC at 372. He noted that he ultimately reduced the proposed penalties by
78% but that "more than the reduction and the proposed assessments must be considered." Id. at
373. He further stated that he had to consider the context in which the penalty proposals arose
and were litigated, noting that the Secretary reduced her proposed penalties by 50% following
GCI' s submission of documentary evidence concerning its financial status. Id. With regard to
the settlement offer, the judge noted that he had refused to rely on "undocumented" settlement
offers in his prior decision, but that on remand there was no question that the Secretary had made
the offer, as evidenced by GCI counsel's letter rejecting the offer. Id. at 374 n.5. Considering
the settlement offer, the judge concluded that the government's "demand" was reduced by 43%,
which did not establish a substantial disparity between the demand and the final assessments. Id.
at 373-74. The judge reiterated a finding from his prior decision that the Secretary did not
propose onerous penalties in order to extract a speedy settlement. Id. at 374. The judge
concluded that the proposed penalties were not substantially in excess of the assessed penalties.
Id.
In addition to finding that the proposed assessments were not substantially in excess of
the assessed penalties, the judge addressed whether the proposed penalties were reasonable. Id.
The judge reviewed GCI' s submission of financial data during the penalty proposal process and
the Secretary's response to determine whether the Secretary acted reasonably in proposing a
penalty reflective of "the actual facts and circumstances of the case." Id. , quoting L & T
Fabrication, 22 FMSHRC at 514. Then, the judge examined the procedures in the Secretary's
Program Policy Manual ("PPM"), which set out a process that provides an operator the
opportunity to submit financial data to MSHA to determine whether proposed penalties should
be reduced. 26 FMSHRC at 374. The judge noted that, by letter dated June 27, 2000, GCI
submitted financial data and requested that MSHA review the company's financial status with
regard to three citations and all other outstanding proposed assessments. Id. at 374-75. The
judge found that the letter was timely with respect to only a few of the proposed assessments. Id.
at 375. The judge further found that there was no evidence that MSHA's Assessment Office
responded, as required by the PPM. Id. However, the judge concluded that the Secretary
followed the "spirit" of the PPM by reviewing the data and proposing a 50% reduction in the
proposed penalties in a settlement offer. Id.
In sum, the judge concluded that the Secretary's offer to settle represented a reasonable
effort to match the penalties to the facts and circumstances and that the offer was a logical and
efficient way for the Secretary to respond. Id. The judge noted that, while the Secretary's
27 FMSHRC 365

reduction was not as great as the reduction he ordered, he had the benefit of sworn hearing
testimony that was unavailable to the Secretary and that he had to consider other penalty criteria·.
Id. at 375-56. For these reasons, the judge concluded that the penalties the Secretary
"effectively" proposed were reasonable. Id. at 376.
Finally, the judge addressed whether GCI should be denied an award because it
committed willful violations or acted in bad faith. Id. at 376 n.7. The judge rejected the
Secretary's position that the number of unwarrantable and significant and substantial (S&S)
violations, in addition to its history of prior violations, was evidence of "willful ... bad faith
actions." Id. The judge further noted that GCI counsel's conduct did not make an award unjust
because she used the hearing to make her case that GCI's financial condition warranted larger
penalty reductions than the Secretary was prepared to offer. Id. The judge concluded that
counsel's "conduct was not such as to bar an otherwise valid award." Id.

II.
Disposition
GCI initially argues that the proposed penalties of $332,701 were substantially in excess
of the assessed penalties, totaling $72,398 - a reduction of 78%. GCI Br. at 4. GCI further
argues that the Secretary's adherence to the proposed penalties, in light of GCI' s financial
hardship, was unreasonable. Id. at 3-6. GCI asserts that it was instructed to send financial
documents to MSHA but that the agency never responded. Id. at 7-8. GCI asserts that it should
not be barred from fees for committing willful violations because it was never charged under
section llO(d) of the Mine Act, 30 U.S.C. § 820(d).4 Id. at 11-12. GCI continues that it did not
act in bad faith, either in its conduct giving rise to the violations or in its conduct during
litigation. Id. at 13. Finally, it asserts that there are no special circumstances that would justify
the denial of an award, noting particularly that it would have accepted a settlement offer reducing
the proposed penalties by 50% had the Secretary made such an offer. Id. at 13-14.
The Secretary asserts that her demand in this proceeding was not excessive and that the
judge correctly considered the Secretary's 50% settlement offer as her demand. S. Br. at 16-17.
The Secretary argues that substantial evidence supports the judge's finding that the Secretary
made a settlement offer of 50% of the proposed penalties. Id. at 20-25. The Secretary further
argues that the penalty proposals were reasonable. Id. at 26-33. The Secretary asserts that the
procedures in the PPM are not binding on her, and, even if they were, she was not required to
reduce the proposed penalties based on the financial information submitted by GCI. Id. at 33-34.
The Secretary also contends that GCI failed to comply with the procedures in the PPM and,
alternatively, that GCI submitted financial data to MSHA through an informal procedure and that
the Secretary responded to her consideration of that data with the settlement offer. Id. at 34-37.
4

Section 1 IO(d) provides for criminal sanctions for, inter alia, "[a]ny operator who
willfully violates a mandatory health or safety standard." 30 U.S.C. § 820(d).
27 FMSHRC 366

The Secretary concludes by contending that special circumstances make an award unjust
and supports her position by pointing to the extensive number of citations and GCI's conduct
during litigation of the case. Id. at 42-46. The Secretary argues that this proceeding is the type of
case that Congress meant to exclude from an BAJA award. Id. at 42. The Secretary continues
that, because GCI' s conduct reflects an attitude that it could repeatedly violate safety and health
standards with impunity because of its financial condition, the case embodies the special
circumstances that preclude an BAJA award. Id. at 44.
In disposing of GCI's BAJA application, we begin by noting that there are three issues
before the Commission: whether the Secretary's penalty proposals were substantially in excess
of the decision of the administrative law judge; whether the proposed penalties were
unreasonable when compared with the judge's decision; and whether special circumstances make
an award unjust. See George Colliers I, 26 FMSHRC at 8-15; ALJ II, 26 FMSHRC at 372-76 &
n.7. GCI must prevail on whether the proposed penalties were both excessive and unreasonable
when compared to the judge's final decision. If GCI prevails on those two issues, it still must
prevail on the issue of whether special circumstances would make an award of fees unjust.5
A.

Special Circumstances Make an Award Unjust

In Georges Colliers I, the Commission noted that GCI committed 559 violations that
repeatedly endangered the lives and safety of its miners, including 272 violations stipulated to be
S&S, and that 39 violations were the result of its unwarrantable failure. 26 FMSHRC at 15. On
remand, the judge stated, "[W]ere I required to rule, I would reject the Secretary's argument that
the stipulated number of violations ... evidence GCI's 'willful ... bad faith actions."' 26
FMSHRC at 376 (citations omitted). Thus, the judge reviewed the violations to determine
whether GCI acted willfully or in bad faith; however, he did not consider GCI's pattern of
violations in relation to the special circumstances exception. In examining GCI' s conduct, we
conclude that the judge considered GCI's history of violations too narrowly.
Section 504(a)(4) of EAJA states that a party who has been subjected to an excessive and
unreasonable government demand is entitled to fees and expenses related to defending against
the demand "unless the party has committed a willful violation of the law or otherwise acted in
bad faith, or special circumstances make an award unjust." 5 U.S.C. § 504(a)(4). While the
1996 amendments were designed to prevent the government from issuing a high demand as a
way of pressuring small entities to agree to quick settlements, Congress also wanted "to ensure
that the government is not unduly deterred from advancing its case in good faith." 142 Cong.
Rec. S3242, S3244 (1996) (statement of Senator Bond). One way in which Congress did this
was to exclude an award when special circumstances are present. Id. These special

5

Nothing in the analytical framework of section 504(a)(4) dictates that these issues
enumerated must be addressed sequentially as they appear in the statute. See L & T Fabrication,
22 FMSHRC at 515 (Commission disposed of an application on the basis that the Secretary's
penalty proposal was not unreasonable without resolving whether the proposal was excessive).
27 FMSHRC 367

circumstances "are intended to include both legal and factual considerations which may make it
unjust to require the public to pay attorneys fees even in situations where the ultimate award is
significantly less than the amount demanded."6 Id. "Special circumstances could include
instances where the party seeking fees engaged in a flagrant violation of the law, endangered the
lives of others, or engaged in some other type of conduct that would make the award of fees
unjust." Id.
The special circumstances exception in section 504(a)(4) has its genesis in 5 U.S.C.
§ 504(a)(l) and 28 U.S.C. § 2412(d)(l)(A). Section 504(a)(l) provides that, in an administrative
adjudication, a party that prevails in an action brought by the agency shall be awarded fees and
other expenses "unless ... the position of the agency was substantially justified or that special
circumstances make an award unjust." 5 U.S.C. § 504(a)(l). Section 2412(d)(l)(A) provides for
an identical special circumstances exception to a fee award in proceedings in federal court when
a party prevails over the government and the position of the government is not substantially
justified. 28 U.S.C. § 2412(d)(l)(A). These sections, which predated the passage of the 1996
amendments to EAJA and apply only to prevailing parties, offer additional guidance to the
meaning and application of the special circumstances exception in section 504(a)(4).
The House Report that accompanied EAJA, when it was enacted in 1980, stated the
following with regard to the special circumstances exception to awards to prevailing parties in
section 504(a)(l) and section 2412(d)(l)(A):
Furthermore, the Government should not be held liable where
"special circumstances would make an award unjust." This "safety
valve" helps to insure that the Government is not deterred from
advancing in good faith the novel but credible extensions and
interpretations of the law that often underlie vigorous enforcement
efforts. It also gives the court discretion to deny awards where
equitable considerations dictate an award should not be made.
H.R. Rep. No. 96-1418, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4953, 4990 (emphasis
added).
Several courts have addressed whether prevailing parties were precluded from recovering
fees under the special circumstances provision in 28 U.S.C. § 2412(d)(l)(A). fu Oguachuba v.
INS., 706 F.2d 93, 99 (2nd Cir. 1983), the court denied fees to an applicant who successfully
challenged his incarceration by the Immigration and Naturalization Service ("INS"), stating, "In
viewing applications for such awards in the context of general equitable principles, we are not
required to limit our scrutiny to a single action or claim on which the applicant succeeded but
6

In his remarks, Senator Bond also stated: "Since there will not be a conference report
on [EAJA], this statement and a companion statement in the House should serve as the best
legislative history of the legislation as finally enacted." 142 Cong. Rec. S3242.
27 FMSHRC 368

must view the application in light of all the circumstances." The court was particularly
influenced by the fact that, although the applicant had successfully won his release from the INS
through a habeas corpus action, he had repeatedly violated U.S. immigration laws prior to his
incarceration. Id. The court concluded, "In classic equity terms, Oguachuba is without clean
hands." Id.
In analyzing special circumstances under section 2412(d)(l)(A), another court has
commented that the "theme of 'unclean hands' pervades the jurisprudence of 'special
circumstances' under EAJA." Air Transport Assoc. of Canada v. FAA, 156 F.3d 1329, 1333
(D.C. Cir. 1998). See also U.S. Dept. of Labor v. Rapid Robert's, Inc., 130 F.3d 345, 347-49
(8th Cir. 1998) (court denied attorney's fees to a prevailing party that committed statutory
violations but was relieved of paying penalties because the agency's implementing regulations
were invalidated); Taylor v. U.S., 815 F.2d 249, 252-54 (3rd Cir. 1987) (court denied attorney's
fees to a prevailing party who took advantage of government misconduct that he later
successfully challenged and that became the basis for his EAJA claim).
Here, GCI committed 559 violations involving penalties that were at issue in the Mine
Act proceeding. In addition, GCI had committed over 384 violations during the 2-year period
prior to the proceeding that gave rise to the EAJA application. 23 FMSHRC at 1391. The judge
concluded that this was "a large history" for a small operator. Id. at 1392. In the Mine Act
proceeding, 272 of the 559 violations were stipulated to be S&S, and 39 of the violations were
stipulated to be due to GCI's unwarrantable failure. In addition, there were nine citations in
which supervisory agents of GCI were found to have knowingly engaged in violations of
standards. Id. at 1356-86.
We conclude that GCI's record of violations brings this proceeding well within the
special circumstances exception to section 504(a)(4). GCI's conduct reflects "flagrant
violation[s]" of the Mine Act over an extended period that resulted in numerous violations that
frequently "endangered the lives" of its miners, as evidenced by the S&S designations of a
substantial number of citations. In short, GCI's conduct is the type of misconduct that Congress
deemed sufficient to disqualify an applicant from an award.
Further, based on the traditional equitable principles that courts have applied to the
special circumstances exception to deny fees to prevailing parties under 28 U.S.C.
§ 2412(d)(l)(A), denial of fees in this proceeding is further warranted because GCI, like the
applicant in Oguachuba v. INS, 706 F.2d at 99, has "unclean hands." We note in particular
GCI's extensive history of violations associated with this proceeding set forth above.
Finally, in weighing the equities in this proceeding, we can consider the nature and
consequence of GCI's success in the underlying Mine Act proceeding. See Rapid Robert's, 130
F.3d at 349. In the merits proceeding, GCI's litigation strategy was to stipulate to the violations
charged and to all the penalty criteria in section l lO(i), 30 U.S.C. § 820(i), while preserving only
its position to contest its ability to pay the proposed penalties and continue in business. 23
27 FMSHRC 369

FMSHRC at 1351. Ultimately, upon considering the economic defense with the other penalty
criteria, the judge reduced the proposed penalties by 78%. The court's comments on an applicant
in similar circumstances in Rapid Robert's is instructive:
Here, the district court relieved Rapid Robert's of over seven times
the amount of penalties which actually resulted from the
invalidated regulations. Rapid Robert's has reaped a windfall by
escaping its duty to pay for clear violations of a valid statute. To
add to that windfall by requiring the government to pay attorneys'
fees and expenses would be patently unjust.
130 F.3d at 349. Compare U.S. v. One 1997 Toyota Land Cruiser, 248 F.3d 899, 906 (9th Cir.
2001) (under 28 U.S.C. § 2412(d)(l)(D), the judicial counterpart to section 504(a)(4), the court,
in remanding for a determination of the existence of willful violations, bad faith, or special
circumstances, noted that the fee applicant "has not been charged with any illegality, and she has
asserted an 'innocent owner' defense"). But for its economic circumstances, GCI should justly
have been held accountable for a much greater penalty, having made no allegations of its own
innocence or the oppressive or abusive government conduct BAJA intended to address. We thus
conclude that to grant GCI fees in the circumstances of this case would create a "windfall," as
well, and that therefore we deny GCI's request for fees and costs.7
fu Georges Colliers I, we established that in order to recover fees, an operator must show
that the Secretary's demand was both excessive and unreasonable. We now address those two
issues in order. While denial of GCI's EAJA application could rest solely on our determination
of the special circumstances exception, the judge's decision on remand in AU II, in light of our
decision in Georges Colliers I, merits our further consideration.

B.

Whether the Proposed Assessments Were Excessive

On remand, the judge concluded that there was not a substantial disparity between the
Secretary's demands and the final penalty assessments. 26 FMSHRC at 373-74. fu reaching that
conclusion, the judge relied on a settlement offer from the Secretary, which purportedly reduced
the original assessments by 50%. Id. GCI appealed the judge's decision because it contends that
the judge should not have relied on the 50% settlement offer. PDR at 2-6.

7

In light of our disposition that fees be denied because of special circumstances in the
proceeding, we do not reach the issues of whether GCI acted in bad faith or engaged in willful
violations.
27 FMSHRC 370

In addressing whether the Secretary's demand was substantially8 in excess of the penalty
imposed in Georges Colliers I, the Commission noted that the test for evaluating the demand
"should not be a simple mathematical comparison." 26 FMSHRC at 7, quoting Joint Managers
Statement of Legislative History and Congressional Intent, 142 Cong. Rec. S3242, S3244 (Mar.
29, 1996) ("Joint Statement''). Further, consistent with this intent, the Commission has held that
whether an applicant meets the "substantially in excess" test will depend on the facts and
circumstances of each case. L & T Fabrication, 22 FMSHRC at 514. Finally, the Commission
has considered it significant whether "the Secretary proposed an onerous penalty in order to
extract a speedy settlement" because that was one of the agency practices that EAJA was
designed to redress. 26 FMSHRC at 10.
In considering whether the Secretary's demand was substantially in excess of the decision
of the judge, we must first identify the Secretary's "demand." In Georges Colliers I, the
Commission rejected consideration of the Secretary's purported 50% settlement offer because,
like the judge (24 FSMHRC at 576-77), the Commission was "understandably reluctant 'to delve
into [the parties'] settlement discussions,' particularly given the lack of 'an undisputed, fully
documented settlement proposal."' 26 FMSHRC at 14 n.21. 9 In addition, the Commission
further noted the statutory definition of "demand" at 5 U.S.C. § 504(b)(l)(F) (defining "demand"
as the "express demand of the agency which led to the adversary adjudication"), and the lack of
any written revised penalty proposals from the Secretary. 26 FMSHRC at 14 n.21
Notwithstanding the Commission's rejection of any consideration of settlement-related
material in Georges Colliers I, the judge relied on the letter from GCI' s counsel to the
Secretary's counsel in which she refers to "the Secretary [sic] last offer to settle at the rate of fifty
percent (50%)." PDR, Ex. A. The judge's consideration of this letter was in error. The
Commission's prior disposition of consideration of settlement-related materials constitutes the
law of the case. See Douglas R. Rushford Trucking, 24 FMSHRC 648, 652 (July 2002). In fact,
the Secretary relied on the same letter from GCI' s counsel with no docket numbers and a
reference to a "ruling" from Judge Melick (rather than Judge Barbour, who presided over the
Mine Act proceeding) that was before the Commission in Georges Colliers 1. 10 See Sec. Opp'n

8

In L & T Fabrication, the Commission held that "substantially" when used in the
phrase "substantially in excess," means "[c]onsiderable in amount, value or the like; large." 22
FMSHRC at 514 n.5 (citation omitted).
9

The Commission's refusal to consider the purported settlement offer in Georges
Colliers I was in connection with the reasonableness of the penalties. Id. at 14. However, the
rationale for not considering the settlement offer in relation to the reasonableness of the offer
applies with equal force to our consideration of whether the Secretary's demand was excessive.
10

The Secretary's brief addresses the Commission's consideration of GCI' s letter and
whether it reflected a 50% offer as a substantial evidence question. S. Br. at 21-25. This is the
sort of evidentiary review of settlement discussions that the Commission was trying to avoid in
27 FMSHRC 371

to Appl. at 12, 15. There has been no legal or factual change in the proceeding that would
warrant revisiting this issue. In short, in agreement with GCI, we conclude that the judge's
consideration of the letter (26 FMSHRC at 373-374 & n.5) was in error. Any examination of the
Secretary's "demand," in the circumstances of this case, should be limited to her proposed
penalty assessments and those actually imposed by the judge. 11
The instant proceeding presents an initial demand that was reduced by 78% by the judge's
decision. In addition to this mathematical comparison of the Secretary's demand and the judge's
decision, our analysis also includes an examination of the facts and circumstances surrounding
the penalty proposals. The judge found and we agree that there is no evidence of inappropriate
motivation on the part of the Secretary in proposing an initially high demand to extract a speedy
settlement. 26 FMSHRC at 374. In this regard, we cannot conclude that the proposed penalties,
totaling $332,701, were onerous. While the demand figure on its face is large, it represents the
cumulative penalties for 559 violations accumulated over a period of 2 years.
The Secretary further argues that the Commission should look at the proposed penalty
assessments individually, rather than at the total assessed penalties. S. Br. at 17-18. Examining
the proposed penalties in individual dockets presents a different, but more representative, picture
than does examining the penalties in toto. As the Secretary indicates, more than half of the
citations involve penalties at the lowest level - $55 - permitted by the regulations, 30 C.F.R.
§ 100.4. Our examination of the total penalties has been largely driven by the fact that GCI has
not sought fees for challenging penalties for individual citations. See GCI EAJA Appl. at 5-6.
This approach was borne out of the circumstances of the underlying Mine Act proceeding in

Georges Colliers I. While the Secretary suggests that GCI' s position that the letter should not be
considered is based on "[s]nippets of legislative history" (S. Br. at 26) (citation omitted), the
·Commission's approach to this issue in Georges Colliers I was based on the statutory definition
of "demand" in 5 U.S.C. § 504(b)(l)(F) and sound policy reasons for not delving into parties'
settlement discussions. See 26 FMSHRC at 14 n.21.
11

The Secretary reiterates an argument, which was considered and rejected in Georges
Colliers I, that the Commission should compare the penalties proposed by the Secretary
($332,701) to the maximum amounts that the Secretary was authorized by regulation to impose
($31,045,000), rather than to the penalties actually imposed by the judge ($72,298). S. Br. at 1820 & n.6. However, the Commission considered and rejected that issue in Georges Colliers I.
"[T]he judge erred when he compared the proposed penalties to the maximum permissible
penalty. The benchmark should have been the penalties that the judge finally imposed - a figure
that was substantially lower than the dollar amount he used." 26 FMSHRC at 9, citing L & T
Fabrication, 22 FMSHRC at 514-15. Indeed, the statute is clear on this point: "the demand by
the agency is substantially in excess of the decision of the adjudicative officer." 5 U.S.C.
§ 504(a)(4).
27 FMSHRC 372

which GCI raised a single global defense to all of the citations issued against it. 12 23 FMSHRC
at 1351. The Secretary responded to GCI's position by initially addressing, in the EAJA
proceeding, "the total proposed penalty assessments." S. Br. (Georges Colliers I) at 18.
Notwithstanding the Commission's prior focus on the total penalties, it is also appropriate to
examine individual penalty amounts. Based on our review of the individual penalties proposed
at the $55 level, we conclude, for this additional reason, that those penalties are not onerous and
thus do not reflect an attempt by the Secretary to propose a high penalty in order to push GCI to
settlement. 13
In sum, based on the foregoing considerations, we conclude that the Secretary's penalty
proposals, when compared to the judge's decision, were not excessive and that, for this reason,
GCI's EAJA application should also be denied.

C.

Whether the Proposed Assessments Were Reasonable

In Georges Colliers I, the Commission remanded to the judge the determination whether
the proposed penalties were unreasonable. More particularly, the Commission instructed the
judge to determine whether the Secretary sufficiently considered evidence of GCI's ability to
continue in business in light of the proposed penalties. 26 FMSHRC at 14. On remand, the
judge found that GCI had not fully complied with the procedures in MSHA's PPM in submitting
financial data; nevertheless, the judge further found that the Secretary followed the spirit of the
PPM by responding with a settlement offer to reduce the penalties by 50%. 26 FMSHRC at 375.
On appeal, GCI objects to the judge's consideration of GCI's letter that purportedly rejected the
Secretary's settlement offer to reduce the proposed penalties in the merits proceeding by 50%.
PDR at5-8.
The judge again relied on the same GCI letter that was discussed in relation to whether
the Secretary's demand was excessive. That reliance is equally misplaced in this prong of his
analysis. Indeed, the Commission in Georges Colliers I directly addressed consideration of the
purported settlement offer in relation to the Secretary's response to GCI' s submission of financial
data under the PPM. See 26 FMSHRC at 14 n.21. The Commission stated: '"The EAJA defines
'demand' as a static concept and not one that metamorphoses over the course of settlement
negotiations.' Accordingly, the lack of any written revised demand from MSHA dictates that the

12

The individual citations, proposed penalties, and penalties that were finally assessed by
the judge after considering GCI's economic defense are fully set out in the Mine Act proceeding.
23 FMSHRC at 1398-1416.
13

As we have noted above, our examination of individual penalties is made more
complicated by a consolidated docket with multiple citations. Nevertheless, in Georges Colliers
I, in analyzing whether the Secretary had made a reasonable effort to match the penalty to the
facts and circumstances of the case, the Commission examined the process followed by the
Secretary in each docket in her Petition for Assessment of Penalty. 26 FMSHRC at 11 & n.13.
27 FMSHRC 373

judge only consider the proposed penalty assessments issued by MSHA." Id. As noted above,
the Commission's prior disposition of this issue is the law of the case. 14
Once consideration of the GCI letter is eliminated from analysis of the reasonableness of
the Secretary's actions, it is not apparent that the Secretary responded in any other way to GCI' s
financial information. The lack of documentation to indicate that the Secretary, at least,
considered the financial information is contrary to the spirit of the Secretary's rules and
guidelines. In this regard, 30 C.F.R. § 100.3(h) provides that "[i]t is initially presumed that the
operator's ability to continue in business will not be affected" by the penalty assessments. It is
apparent, then, that the PPM provides the only procedure by which operators can submit this
financial information to MSHA because the rules are otherwise silent as to the process for
transmitting this information. 15
In defense of her position, the Secretary argues that the PPM is not binding on her. We
must note, however, that the Secretary's own regulations stipulate that an operator's ability to
continue in business is presumed unless the operator submits evidence to the contrary. Upon
such a submittal, the Secretary may, within her discretion, adjust the penalty. 30 C.F.R.
§ 100.3(h). When the Secretary establishes a procedure directing operators to submit financial
information in support of a request for a mitigation of civil penalties, she should respond, even if
the response is a rejection of the request.
Nothing required the Secretary to make an adjustment, and the operator's representation
that it would be unable to pay even a token amount calls into question whether the Secretary
would have been able to make any meaningful adjustment in the penalty without compromising
her responsibility to ensure that appropriate penalties are imposed for profligate and serious
violations of the Mine Act. Given the circumstances of this case, we understand the Secretary's
reluctance to grant concessions to GCI. Nevertheless, the Secretary should have made a reasoned
determination to that effect and communicated it to the operator. Indeed, one might view her
failure to respond as an arbitrary and capricious disregard of a relevant penalty criterion under
different circumstances.
By the time the parties went to trial in the Mine Act proceeding they had stipulated to all
issues related to the violations and proposed penalties except whether GCI' s payment of the

14

This is not to say that the Commission can never consider a settlement offer in
determining the reasonableness of the Secretary's demand. Rather, on the record in this
proceeding, including the lack of any definitive settlement offer from the Secretary that clearly
pertains to the dockets before the Commission, consideration of the parties' settlement
negotiations is clearly inappropriate.
15

The Secretary asserts, and GCI does not disagree, that GCI timely submitted financial
information in only five of the 55 dockets. S. Br. at 34-35. See also ALJ II, 26 FMSHRC at 37475.
27 FMSHRC 374

penalties would affect its ability to continue in business. Further, the judge's assessment of
penalties in his decision focuses primarily, if not entirely, on this element of section l lO(i), 30
U.S.C. § 820(i), in reducing the Secretary's proposed penalties in light of the parties'
stipulations. 23 FMSHRC at 1398-1416. In these circumstances, the Secretary's failure to
formally respond - either by a written settlement offer, revised penalties or by a letter rejecting
mitigation of penalties - is at her peril in light of her potential BAJA liability. As the
Commission noted in remanding this issue to the judge in Georges Colliers I, 16 the issue is to
determine "whether [the Secretary] made 'a reasonable effort [here] to match the penalty to the
actual facts and circumstances of the case."' 26 FMSHRC at 14, quoting L & T Fabrication, 22
FMSHRC at 515-16.

In light of the Commission's decision in Georges Colliers I, the judge's clear error in
considering GCI's letter, and the absence of any other evidence indicating that the Secretary
responded to GCI' s showing of financial hardship, we conclude that, while the Secretary's
proposed penalty may not be deemed unreasonable in comparison with the judge's final decision,
the Secretary did not act reasonably by failing to respond to the operator's request for an
adjustment of the proposed penalties. However, given our prior disposition of the special
circumstances exception and whether the penalties were excessive, our conclusions with regard
to reasonableness do not change the outcome of this proceeding. We only intend our discussion
to indicate what criteria we might apply were the circumstances different from those presented in
this case, and because the reasonableness issue was remanded to the judge in Georges Colliers
J.17

16

In Georges Colliers I, the Commission noted that the file in each docket indicated that
the Secretary made a reasonable effort to match the penalty to the facts and circumstances of each
citation when she initially issued her assessments. 26 FMSHRC at 11 & n.13. However, the
central issue in this proceeding is the nature of the Secretary's response to GCI' s submission of
financial data that indicated GCI would be unable to continue in business if it paid the full
amount of the penalty assessments. Id. at 11. Of course, it was not incumbent on the Secretary
to lower the proposed penalties but rather to show that she had, at the least, considered the
financial information in relation to the violations and the proposed penalties.
17

While the Secretary erred by not providing a determinative response to GCI's
economic hardship submission, nonetheless GCI' s failure to timely follow the established
procedure in most of these dockets constitutes a mitigating factor that would preclude a finding
that the Secretary acted unreasonably in those cases.
27 FMSHRC 375

m.
Conclusion
We affirm the judge's denial of the request for fees and expenses and dismiss the EAJA
application for the reasons stated above.

27 FMSHRC 376

Distribution
Elizabeth M. Christian, Esq.
11229 Pleasant Wood Lane
Fort Worth, TX 76140-6539
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

27 FMSHRC 377

27 FMSHRC 378

ADMINISTRATIVE LAW JUDGE DECISIONS

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

April7,2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVJLPENALTYPROCEEDING
Docket No. CENT 2004-211-M
A.C. No. 41-01171-32192

v.
WEIRICH BROTHERS, INC.,
Respondent

Boemer Pits & Plant

DECISION
Appearances: Thomas A. Paige, Esq., and Carlton C. Jackson, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, for Petitioner;
Terry Weirich, President, Weirich Brothers, Inc., Johnson City, Texas, Pro Se, for
Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
Weirich Brothers, Inc., pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815. The petition alleges five violations of the Secretary's mandatory health
and safety standards and seeks a penalty of $2,575.00. A hearing was held in San Antonio,
Texas. 1 For the reasons set forth below, I vacate one order, affirm an order/citation, modify three
orders and assess a penalty of $700.00.

Backeround
Weirich Brothers, Inc., is a small, family-owned, sand and gravel company that operated
three pits, known as the Boemer Pits and Plant, the Davis Pit and the Myer Pit, in the vicinity of
Johnson City, Texas. In addition, to Terry Weirich, President, and his sister, Sandra Danz, Vice
President, the company has no more than four employees at any one time. The Boerner Pits and
Plant closed in May 2004.

1

The record was kept open to admit the deposition of Jose G. Garza. (Tr. 103, 165.)
Garza's deposition has been submitted as Petitioner's Exhibit 16 and is admitted as such.
27 FMSHRC 379

This case arises out of semi-annual inspections of the Boerner Pits and Plant in July 2003
and February 2004. The Respondent has contested a combined 107(a) order/104(a) citation, 30
U.S.C. §§ 817(a) and 814(a), issued on July 14, 2003, and four 104(d)(2) orders, 30 U.S.C.
§ 814(d)(2), issued on February 3, 2004. The orders, and citation, will be discussed in the order
of their issuance.
Findings of Fact and Conclusions of Law

Order/Citation No. 6233133
This order/citation alleges that a violation of section 56.14101(a)(I) of the Secretary's
regulations, 30 C.F.R. § 56.14101(a)(I), occurred on July 14, 2003, because:
The service brakes of the 980 CAT F.E.L. would not stop
the loader on the typical grade in the plant area. The 980 CAT
F.E.L. could smash or run over someone or something in the plant
area with the defective brakes. Operator did not know how long
the brakes had been defective[;] he does not run it every day. An
oral 107(a) imminent danger order was issued to Joe Garcia [sic],
foreman, at 1405 hours on this date.
(Pet. Ex. I.) Section 56.14101(a)(I) provides, in pertinent part, that: "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 ...."
Inspector Rick Knupp testified that as he was conducting his inspection on July 14,
the piece of equipment that's mentioned here [in the order/citation]
was coming by us, and Joe Garcia was the - or Joe Garza was
accompanying me. And we went to stop the loader to do a safety
check on it, he couldn't stop. The service brakes wouldn't work,
and he ended up putting the bucket down to get the piece of
eq1:1ipment stopped there.
(Tr. 66.) He further related that during this time, "[t]here was at least one plant haul truck
hauling materials, and then there was a couple of over-the-road trucks that were waiting to be
loaded in the area there. And the truck drivers were standing around talking." (Tr. 67.) The
inspector said that the loader was moving material and loading trucks and that when it loaded a
truck, "he'd go up with his bucket, and his tires would go against the tires of the haul truck."
(Tr. 70.)
Tim Hahne, the loader operator, testified that the loader "had brakes on it that morning.
Then we start working, pushing the loader, working twice as hard with the trucks coming in and
27FMSHRC380

out, then loading the pit trucks up. And, you know, it starts wearing down." (Tr. 99.) He said
that the brakes had to be adjusted every once in awhile. (Tr. 97.) Terry Weirich testified that
after receiving the order/citation, he adjusted the brakes on the loader. (Tr. 124.)

Imminent Danger
Section 107(a) of the Act states that:

If, upon any inspection or investigation of a coal or other
mine which is subject to the Act, an authorized representative of
the Secretary finds that an imminent danger exists, such
representative shall determine the extent of the area of such mine
throughout which the danger exists, and issue an order requiring
the operator of such mine to cause all persons ... to be withdrawn
from, and to be prohibited from entering, such area until an
authorized representative ... determines that such imminent
danger and the conditions or practices which caused such imminent
danger no longer exist.
Section 3(j) of the Act, 30 U.S.C. § 802(j), defines an "imminent danger" as "the existence of
any condition or practice in a coal or other mine which could reasonably be expected to cause
death or serious physical harm before such condition or practice can be abated."

In interpreting this definition, the Commission has stated that "an imminent danger exists
when the condition or practice observed could reasonably be expected to cause death or serious
physical harm to a miner if normal mining operations were permitted to proceed in the area
before the dangerous condition is eliminated." Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (Nov. 1989), quoting Eastern Associated Coal Corp. v. Interior Bd. Of Mine Op.
App., 491F.2d277, 278 (4th Cir. 1974) (emphasis omitted) (R&P). The Commission has
elaborated that "[t]o support a finding of imminent danger, the inspector must find that the
hazardous condition has a reasonable potential to cause death or serious injury within a short
period of time." Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991).
An inspector's finding of an imminent danger must be supported "unless there is
evidence that he has abused his discretion or authority." R&P, 11 FMSHRC at 2164, quoting
Old Ben Coal Corp. v. Interior Bd. OfMine Op. App., 523 F.2d 25, 31 (7th Cir. 1975) (emphasis
omitted). "An inspector abuses his discretion, making a decision that is not in accordance with
law, if he orders the immediate withdrawal of miners in circumstances where there is not an
imminent threat to safety." Blue Bayou Sand and Gravel, Inc., 18 FMSHRC 853, 858-59 (June
1996).

In determining whether he has abused his discretion, an inspector "is granted wide
discretion because he must act quickly to remove miners from a situation he believes is
27 FMSHRC 381

hazardous." Id. at 859. In assessing an inspector's exercise of his discretion, the focus is on
''whether the inspector made a reasonable investigation of the facts, under the circumstances, and
whether the facts known to him, or reasonably available to him, supported the issuance of the
imminent danger order." Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992).

In this case, I find that the inspector did not abuse his discretion in issuing the imminent
danger order. Operating a loader without brakes in area where trucks are moving and being
loaded and truck drivers are standing outside of their trucks, not to mention any mine employees
who might have been working in the area, certainly has a reasonable potential to cause death or
serious injury within a short period of time. Accordingly, I affirm the imminent danger order.
104(a) citation
I further conclude that the Respondent violated section 56.14101(a)(l) as alleged.
Although the inspector did not test the loader's brakes on the maximum grade that it travels, it is
obvious that if the loader could not stop on level ground, it would not be able to pass such a test.

Significant and Substantial
The inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l),
as a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A violation is properly designated S&S
"if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)
In Mathies Coal Co., 6 FMSHRC 1(Jan.1984), the Commission enumerated four criteria
that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir.
1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies
criteria). Evaluation of the criteria is made in terms of "continued normal mining operations."
U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is S&S must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (Dec. 1987).

In order to prove that a violation is S&S, the Secretary must establish: (1) a violation of a
safety standard; (2) a distinct safety hazard contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature. Mathies, 6 FMSHRC at 3-4.

27 FMSHRC 382

Here the Respondent violated section 56.14101(a)(l) by operating a front-end loader
without brakes. This violation contributed to a safety hazard to the employees and truck drivers
in the area of the loader's operation, as well as the operator of the loader. There was a reasonable
likelihood that one of the truck drivers or mine employees could have been struck by the loader,
or that the loader could have struck a truck or other immoveable object resulting in injuries to the
operator. Finally, there was a reasonable likelihood that any resulting injury would be reasonably
serious or fatal.
For these reasons, I conclude that the violation was "significant and substantial."
Order No. 6236339
This order charges a violation of section 56.14112(b), 30 C.F.R. § 56.14112(b), on
February 3, 2004, in that:
The guard for the #2 screen v-belt and pulley drive was not
in place. The foreman stated that he had performed repairs on the
drive and had not replaced the guard. This exposes persons to an
entanglement hazard. This mine has been issued three previous
violations for this standard in the last seven months. Management
engaged in aggravated conduct constituting more than ordinary
negligence in that the foreman was running the plant and knew the
guard was not in place. This violation is an unwarrantable failure
to comply with a mandatory standard.
(Pet. Ex. 2.) Section 56.14112(b) requires that: "Guards shall be securely in place while
machinery is being operated, except when testing or making adjustments which cannot be
performed without removal of the guard."
Inspector Kevin Busby testified that when he pulled into the quarry and parked his car he
observed that the #2 shaker screen was running and that there was no guard on the pulley and
drive belts. (Tr. 14.) Jose Garza, the foreman, admitted that the screen was operating with an
unguarded pulley, but claimed that he was testing it. (Garza Dep. at 36.) This claim does not fit
within the exception to the rule.
In the first place, there is no claim that the testing could only be done with the guard
removed. Garza said that he wanted to see if the belt would stay on after he fixed it. (Garza
Dep. at 36.) This observation did not require the guard to remain off. In the second place, after
he observed that the belt was holding, Garza left the belt unattended with the guard off. (Tr. 36.)
Therefore, I find that the regulation was violated as alleged.

27 FMSHRC 383

Unwarrantable Failure
This order was issued under section 104(d)(2) of the Act.2 As the Commission has
explained:

,.._ r.~: · ..: ··

2

Section 104(d) creates a "chain" of increasingly severe
sanctions that serve as an incentive for operator compliance. See
Nacco Mining Co., 9 FMSHRC 1541, 1545-46 (Sept. 1987).
Under Section 104(d)(l), if an inspector finds a violation of a
mandatory standard during,an·.inspectjen,_ and finds that the ··
violation is S&S. and that itis also caused.by an unwarrantable
failure, he issues a citation under section 104(d)(l). 30 U.S.C.
§ 814(d)(l). ·That citation is commonlyn~ferred to as a "section
104(d)(l) citation" or a "predicate citation..~~: See Greenwich
Colleries, Div. Of Pa. Mines Corp., 12·FMSHRC'9'"40: 945 (May
1990). If during the same inspection or any subsequent inspection
within 90 days after issuance of the predicate citation, the inspector
finds another violation caused by unwarrantable failure to comply
with a standard, the inspector issues a withdrawal order under
section 104(d)(l), sometimes referred to as a "predicate order." 30
U.S.C. § 814(d)(l); Wyoming Fuel Co., 16 FMSHRC 1618, 1622
n.7 (Aug. 1997). If an inspector "finds upon any subsequent
inspection" a violation caused by unwarrantable failure, he issues a
withdrawal order for that violation under section 104(d)(2). 30
U.S.C. § 814(d)(2). The issuance of withdrawal orders under
section 104(d)(2) does not cease and an operator remains on
probation "until such time as an inspection of such mine discloses
no similar violations." Id.; see Nacco, 9 FMSHRC at 1545.

Section 104(d)(2) provides that:

If a withdrawal order with respect to any a,ea in a coal or
other rID:I?e ha$ ~ee~is;u.:ecl,p~µant~!f>:{Jar~~flP.h. (1), a withdrawal
order shall promptly be issued by an authorized representative of
the Secretary·w ho -f inds_upon-any subs~quent inspection the
existence in sucmmi~UV.iofations·:. similar to those that resulted in
the issuance of the withdrawal order under paragraph (1) until such
time as an inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar
violations, the provisions of paragraph (1) shall again be applicable
to that mine.
27 FMSHRC 384

Cyprus Cumberland Resources Corp., 21FMSHRC722, 725 (July 1999) (footnote omitted).
Thus, in order to establish that a violation comes within section 104(d)(2), the Secretary must
prove three things: (1) a valid section 104(d)(l) predicate order; (2) a violation of a mandatory
health or safety standard caused by an unwarrantable failure; and (3) the absence of an
intervening clean inspection. Id.; U.S. Steel Corp., 6 FMSHRC 1908, 1911 (Aug. 1984); Kitt
Energy Corp., 6 FMSHRC 1596, 1600 (July 1984).
The predicate order for this order is listed in section 14 of the order form as Order No.
6233165, issued on August 27, 2003. (Pet. Ex. 2.) The predicate order, however, was not
offered at the trial. Nor is it included in the Assessed Violation History Report, which
purportedly lists all violations at the Boemer Pits & Plant between July 4, 1976, and January 20,
2005. (Pet. Ex. 14.) Indeed, there are no 104(d)(l) orders at all listed in the report. Therefore,
there is no way to determine whether there is a valid predicate order. In addition, the Secretary
did not offer any evidence of the absence of an intervening clean inspection.
Consequently, I find that the Secretary has failed to make out a primafacie case that this
violation should be a section 104(d)(2) order and will modify it. In this regard, it cannot be
modified to a section 104(d)(l) order because there is no evidence that this order was issued
within 90 days of a 104(d)(l) citation. According to the violation history report, the most recent
inspection prior to this one was on August 27, 2003, more than 90 days earlier. · Furthermore, if a
section 104(d)(l) order had been issued within 90 days of the instant order, the order would have
been issued as a section 104(d)(l) order, not a section 104(d)(2) order. Nor can it be modified to
a 104(d)(l) citation since the inspector determined the violation to be not "significant and
substantial." Hence, I will modify it to a 104(a) citation, 30 U.S.C. § 814(a).
Order No. 6236340
This order also alleges a violation of section 56. 14112(b) on February 3, 2004, because:
The guard for the left side of the tail pulley of the truck load
out belt conveyor was not in place. The foreman stated that he had
taken the guard off to clean around the tail pulley and had not
replaced it. This exposes the foreman who monitors the plant and
accesses this area to an entanglement hazard. This mine has been
issued three previous violations for this standard in the last seven
months. Management engaged in aggravated conduct constituting
more than ordinary negligence in that the foreman was running the
plant and knew that he had not replaced the guard. This violation
is an unwarrantable failure to comply with a mandatory standard.
(Pet. Ex. 3.)

27 FMSHRC 385

Inspector Busby testified that while he was observing the previous violation, the foreman,
Garza, "had driven up arid parked his truck under the load-out belt and had walked over, and
when I turned he was replacing that guard on the tail pulley." (Tr. 23.) He further testified that
the belt does not run continuously, but is turned on by the truck driver after parking his truck
under the belt, so material can be loaded into it. (Tr. 26-27.) On cross examination, when asked
if the belt was running when Garza put the guard back on, he answered: "I believe it was." (Tr.
51.) Finally, the inspector and I had the following conversation:
JUDGE HODGDON: Mr. Busby, going back to the load-out
hopper, do you - did you observe Mr. Garza backing the truck up
to the load-out hopper?
THE WITNESS: Well, I - yes, sir, in a way. I turned and saw the
truck backing up, and then he was exiting it. I don't -I can't say,
for example, if - still rolling or if he had actually parked it, but he
had exited and was walking in that area.
JUDGE HODGDON: And what did he do? Where did he go?
THE WITNESS: He came by the controls, and that's when I
thought that he had activated that belt. And then he was putting
the guard back on the tail pulley of the under-hopper belt when I
turned completely and observed him.
JUDGE HODGDON: So you're saying he activated the belt before
he put the guard on?
THE WITNESS: That's what I thought I saw, yes, sir.
JUDGE HODGDON: Okay. When he put the guard on, was the
belt operating?
THE WITNESS: I believe so, sir.
JUDGE HODGDON: Was it loading the truck?
THE WITNESS: I didn't observe that.
(Tr. 59-60.)
Garza testified that:

27 FMSHRC 386

A rock got hung on the belt. I had to take [the guard] off to take
the rock off. And my truck was loaded, and I went to take my load
up, and when I get back to put the guard on, like I said, he's right
on the money. He comes with the guard off. You know, by the
time I park my truck, he already saw the guard.
(Garza Dep. at 43.) He further explained that the belt does not run constantly, that "[t]he only
time I run it is when I tum it on with one of these switches. I turn it on, empty the hopper, turn it
back off." (Dep. at 44.) He said that it was not running when the inspector saw it. (Id.)
Based on this evidence, I find that the regulation was not violated. The inspector was
equivocal as to whether the belt was running or not. In his initial testimony, he did not mention
the belt running at all. When questioned about it, he qualified his answers with "I believe" and "I
thought." On the other hand, Garza's explanation that he loaded his truck, a rock got caught on
the belt, he turned off the belt, removed the guard, removed the rock and then took his truck to
dump it, is very plausible. He was not asked if he turned the belt on before replacing the guard,
but since he knew the inspector was watching him, it does not make sense that he would do so.
Furthermore, even if he did turn the belt on before replacing the guard, such a short time would
have elapsed, with no one exposed to the hazard, that it would not be a violation. Accordingly, I
will vacate this order.
Order No. 6236341
This order charges yet another violation of section 56.14112(b) because:
The guard for the lower pulley of the drive for the jaw
crusher was not in place exposing the pinch point. The foreman
stated that he had removed the guard to replace the belt earlier in
the day and had not replaced the section of guarding. This exposes
the foreman who accesses this area to monitor feed to the crusher
to an entanglement hazard. This mine has been issued three
previous violations for this standard in the last seven months.
Management engaged in aggravated conduct constituting more
than ordinary negligence in that the foreman was running the plant
and knew the section of guarding had not been replaced. This
violation is an unwarrantable failure to comply with a mandatory
standard.
(Pet. Ex. 4.)
The inspector testified that a portion of the guarding around the drive motor and pulley
was missing, exposing the pinch points on the pulley and v-belt drive. (Tr. 40.) The pictures
taken by the inspector confirm this. (Pet. Ex. 4.) Garza admitted that the piece of guarding was

27 FMSHRC 387

nussmg. (Garza Dep. at 46-47.) Therefore, I conclude that the Respondent violated the
regulation as alleged.
Unwarrantable Failure

This order was issued under section 104(d)(2). For the same reasons that I found that
section 104(d)(2) did not apply to Order No. 6236339, supra, I find that the section does not
apply to this violation and will modify it accordingly.
The order was amended on March 5, 2004, by deleting the "significant and substantial"
designation. (Pet. Ex. 4.) Hence, for the same reasons as Order No. 6236339, the order can only
be modified to a 104(a) citation.
Order No. 6236345
This order alleges a violation of section 56.14132(b)(l)(ii), 30 C.F.R.
§ 56.14132(b)(l)(ii), in that:
The wheel mounted reverse movement bell alarm had been
removed from the F700 Ford bobtail dump truck loading from the
plant load out to stockpile. The truck also did not have a horn to
warn persons of movement of the truck. Management engaged in
aggravated conduct constituting more than ordinary negligence in
that the foreman knew the bell alarm was not installed on the truck
and he operated it in this condition. This violation is an
unwarrantable failure to comply with a mandatory standard.
(Pet. Ex. 5.) Section 56.14132(b)(l)(ii) requires that: "When the operator has an obstructed
view to the rear, self-propelled mobile equipment shall have - ... (ii) A wheel-mounted bell
alarm which sounds at least once for each three feet of reverse movement."
The inspector testified that the truck was equipped with a wheel-mounted bell alarm, but
that the bell had been removed from the wheel. (Tr. 34-36.) The Respondent admitted the
violation. (Tr. 128.) Consequently, I find that the Respondent violated the regulation.
Unwarrantable Failure

This violation was also issued as a 104(d)(2) order. The inspector found the violation not
to be "significant and substantial." Therefore, for the same reasons as for Order Nos. 6236339
and 6236341, supra, I will modify this order to a 104(a) citation.

27 FMSHRC 388

Civil Penalty Assessment
The Secretary has proposed a penalty of $2,100.00 for the four remaining violations.
However, it is the judge's independent responsibility to determine the appropriate amount of
penalty in accordance with the six penalty criteria set out in section 1 lO(i) of the Act, 30 U.S.C.
§ 820(i). Sellersburg Stone Co. v. FMSHRC, 736F.2d1147, 1151 (7th Cir. 1984); Wallace
Brothers, Inc., 18 FMSHRC 481, 483-84 (Apr. 1996).
With regard to the penalty criteria, I find that the Respondent is a small operator. Based
on the Assessed Violation History Report, I find that the Company has a good history of previous
violations. (Pet. Ex. 14.) Based on the order/citations, and the lack of evidence to the contrary, I
find that the operator demonstrated good faith in abating the violations after being notified of
them. I further find that the gravity of Order/Citation No. 6233133 was serious in that a fatal
injury could have resulted from the operation of the loader without brakes. On the other hand, I
find the gravity of the three remaining citations was not so serious since injuries were unlikely to
result from them.
Turning to negligence, I find that the operator's negligence with regard to Citation
(formerly Order) Nos. 6236339, 6236341 and 6236345 to be high. All of these violations were
committed by the foreman, Jose Garza, who, as a foreman, is held to a heightened standard of
care concerning safety matters. S & H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995);
Youghiogheny, 9 FMSHRC at 2011. In addition, the Secretary has established that the operator
has a recent history of repeatedly committing guarding and back-up alarm violations. (Pet. Exs.
6, 7, 8 and 14.)
I also find that the Respondent's negligence was high with regard to Order/Citation No.
6233133. While Hahne was obviously highly negligent in continuing to operate the loader
without brakes, that negligence is not necessarily imputable to the operator. Normally, the
negligence of a "rank-and-file" miner cannot be imputed to the operator for civil penalty
purposes. Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Western
Fuels-Utah, Inc., 10 FMSHRC 256, 260-61(Mar. 1988); Southern Ohio Coal Co., 4 FMSHRC
1459, 1464 (Aug. 1982) (SOCCO). However, the Commission has held that: "[W]here a rankand-file employee has violated the Act, the operator's supervision, training and disciplining of its
employees must be examined to determine if the operator has taken reasonable steps necessary to
prevent the rank-and-file miner's violative conduct." SOCCO at 1464.
In this case, I find that the operator had not taken reasonable steps in its supervision,
training and disciplining to prevent the violative conduct. Garza testified that no one had ever
been disciplined or fired for failing to follow safety rules. (Garza Dep. at 28.) In addition, in
view of its continuing to receive citations for the same types of violations, one would expect the
operator to exercise increased vigilance and to expect the same from his employees. Yet, there is
no evidence of that in this case. The Respondent has apparently continued to operate as normal.
Accordingly, I find that the operator's negligence with regard to this violation was high.

27 FMSHRC 389

To show that paying the proposed penalty will adversely affect the company's ability to
remain in business, the Respondent has submitted balance sheets and income statements for the
years 2000 through 2003. (Resp. Exs. B, C, D and E.) In addition, Mr. Weirich testified that he
expected a $30,000.00 loss for 2004. (Tr. 117.) All of the financial statements are accompanied
by the following statement by the accountants:
The owners have elected to omit substantially all of the
disclosures ordinarily included in financial statements prepared on
the income tax basis of accounting. If the omitted disclosures were
included in the financial statements, they might influence the user's
conclusions about the Company's financial position and results of
operations.
(Resp. Exs. B, C, D and E.) Furthermore, all of the financial statements are unaudited. (Tr.
157.)
It is apparent that the financial statements are not reliable information on which to
determine whether the penalty will adversely affect Weirich' s ability to remain in business.
There is no way to know whether the information in them is complete, true and correct. The
burden is on the operator to show that the penalty will adversely affect its ability to remain in
business. Sellersburg at n.14. Unaudited financial statements are not sufficient to sustain that
burden. See Spurlock Mining Co., Inc., 16 FMSHRC 697, 700 (Apr. 1994).
Nevertheless, the Secretary has submitted three settlement agreements from prior cases
involving the Respondent in which the Secretary has reduced penalties because payment would
adversely affect the company's ability to remain in business. (Pet. Exs. 11, 12 and 13.) Thus, it
is clear that the Secretary has accepted that the payment of penalties will affect the operator's
ability to remain in business. There is no evidence that business has gotten better since these
agreements were made. Therefore, I find that payment of a penalty would adversely affect the
Respondent's ability to remain in business and will take that into consideration in assessing
penalties.
Taking all of these factors into consideration, I find that a penalty of $700.00 is
appropriate, assessed as follows: (1) Order/Citation No. 6233133-$400.00; (2) Citation No.
6236339-$100.00; (3) Citation No. 6236341-$100.00; and (4) Citation No. 6236345-$100.00.

27 FMSHRC 390

Order

In view of the above, Order No. 6236340 is VACATED; Order/Citation No. 6233133 is
AFFIRMED; Order Nos. 6236339, 6236341and6236345 are MODIFIED tol04(a) citations by
deleting the "unwarrantable failure" designations and are AFFIRMED as modified. Weirich
Brothers, Inc., is ORDERED TO PAY a civil penalty of $700.00 within 30 days of the date of
this order.

'1r1!~

Administrative Law Judoe
/;>

Distribution: (Certified Mail)
Thomas A. Paige, Esq., Carlton C. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, 525 South Griffin St., Suite 501, Dallas, TX 7502
Terry Weirich, President, Weirich Brothers Inc., P.O. Box 206, Johnson City, TX 78636
/hs

27 FMSHRC 391

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY VENUE, N.W., SUITE 9500
WASHINGTON, D.C. 20001

April7,2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2003-268-M
A.C. No. 02-01221-05528

v.

Docket No. WEST 2003-269-M
A.C. No. 02-01221-05529

CKC MATERIALS DIVISION,
Respondent

Docket No. WEST 2003-270-M
A.C. No. 02-01221-05530

DECISION APPROVING SETTLEMENT
Before:

Judge Bulluck

These cases are before me upon petition for assessment of civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977 ("the Act"). Petitioner has filed a
motion to approve settlement agreement and to dismiss these cases. A reduction in penalty from
$10,384.00 to $6,000.00 is proposed. The citations, initial assessments and the proposed
settlement amounts are as follows:

Citation No.
WEV A 2003-268-M

6283833
6283836
6283846
6292219
6292220
6292221
6292222
6292223
6292224
6292225
6292226
6292228
6292260
6292261
6292262
6292263

Initial
Assessment

Proposed
Settlement

$

$

55.00
55.00
55.00
55.00
90.00
90.00
90.00
55.00
90.00
90.00
55.00
55.00
113.00
90.00
90.00
55.00

27 FMSHRC 392

55.00
55.00
55.00
55.00
90.00
55.00
90.00
55.00
0.00
55.00
55.00
55.00
113.00
90.00
90.00
55.00

55.00
55.00
55.00

55.00
55.00
55.00

SUBTOTAL: $ 1,348.00

$ 1,153.00

6292264
6292265
6292266

WEVA 2003-269-M

6292267
6292268
6293869
6293870
6293871
6293872
6293873
6293874
6293875
6293876
6293877
6293878
6293879
6293880
6293881
6293882
6293884
6293885
6293886

$

55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
90.00
90.00
90.00
55.00
90.00
55.00
55.00
55.00
231.00
55.00

SUBTOTAL: $ 1,361.00

WEVA 2003-270-M

6293890
6292997
6292999
6293001
6293002
6293003
6293004
6293005
6293007
6293008
6293009
6293010
6293011
6293012

$

231.00
224.00
224.00
655.00
399.00
161.00
317.00
224.00
655.00
655.00
655.00
655.00
655.00
655.00

27 FMSHRC 393

$

0.00
0.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
90.00
55.00
55.00
0.00
90.00
55.00
55.00
55.00
231.00
55.00

$1,126.00

$ 231.00
224.00
224.00
162.00
399.00
161.00
317.00
224.00
162.00
162.00
645.00
162.00
162.00
162.00

655.00
655.00

162.00
162.00

SUBTOTAL: $ 7,675.00

$3,721.00

$10,384.00

$6,000.00

6293013
6293014

TOTAL:

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.

WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that Citation Nos. 6292224, 6292267, 6292268 and 6293879 are VACATED, that
the Secretary MODIFY Citation Nos. 6293877 and 6293878 to reduce the level of gravity to
"unlikely," Citation Nos. 6292221, 6292225, 6292261, 6293877 and 6293878 to delete the
"significant and substantial" designation, and that Respondent PAY a penalty of $6,000.00
within 30 days of this decision. On receipt of payment, these cases are DISMISSED.

~{~

Administrative Law Judge
(202) 434-9987

Distribution:
Isabella M. Del Santo, Esq., U.S. Department of Labor, Office of the Solicitor, 71 Stevenson
Street, Suite 1110, San Francisco, CA 94105-2937
Brian Cluff, General Manager, CKC Materials, 1234 E. Airport Blvd., Safford, AZ 85546
ej

27 FMSHRC 394

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington DC, 20001-2021
Telephone: (202) 434-9958
Fax: (202) 434·9949

April 15, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD1\.1INISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 2004-397-M
A. C. No. 35-03260-28580
Harvey W. Buche Building

HARVEY W. BUCHE ROAD BUILDING,
INC.,
Respondent.

DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO VACATE CITATIONS
ORDER TO PAY
Judge Lesnick

Before:

This case is before me pursuant to an order of the Commission dated December 23, 2004,
. remanding this matter for further consideration and determination as to whether the operator,
Harvey W . Buche Road Building, Inc. ("Buche") is entitled to relief under Rule 60(b) of the
Federal Rules of Civil Procedure. 1 In particular, Rule 60(b)(l) provides relief from a final
judgment in cases where there has been a "mistake, inadvertence, surprise, or excusable neglect."
This matter arose because Buche failed to file a timely response to the Secretary of
Labor's ("Secretary") petition for assessment of civil penalty and my subsequent Order to Show
Cause. In its request to reopen, Buche asserts that after the show cause order was issued, it began
negotiations with the Solicitor's Office and reached a settlement. However, Buche contends the
agreement was inadvertently misplaced. As soon as the matter was brought to its attention, it
forwarded the signed agreement to the Solicitor's Office. The Secretary has not filed a response
to Buche's request, but she has filed a settlement motion.
Based upon the evidence presented before the Commission, the record before me, and the
submission of the settlement motion by the Secretary - an seemingly indirect statement that she
does not oppose the reopening of the assessment, I conclude that the penalty assessment should
be reopened pursuant to Rule 60(b).

1

While the Commission is not obligated to adhere to the Federal Rules of Civil
Procedure, the Commission has found guidance and has applied "so far as practicable" Rule
60(b). See 29 C.F.R. § 2700.l(b).
27 FMSHRC 395

Accordingly, the penalty assessment is reopened, and this case shall proceed pursuant to
the Mine Act and the Commission Procedural Rules, 29 C.F.R. § 2700.
Settlement Motion
The parties propose a reduction in penalty from $2,491.00 to $1,882.00. The parties also
request that the negligence for Citation Nos. 6352339, 6352341, 6352342, and 6352355 be
modified as outlined in the settlement motion. I have considered the representations and
documentation submitted in this case, and I conclude that the proffered settlement is appropriate
under the criteria set forth in section 11 O(i)of the Act. The settlement amounts are as follows:

Citation No.

Date

C.F.R.

Assessment

Settlement

6352339
6352341
6352342
6352355
6352340
6352343
6352344
6352345
6352346
6352348
6352349
6352350
6352353
6352354

03/04/04
03104104
03/04/04
03105104
03/04/04
03105104
03105104
03105104
03/05/04
03/05/04
03/05/04
03/05/04
03105104
03/05/04

46.8(a)(l)
56.14107(a)
56.14107(a)
56.14101(a)(2)
56.12013(b)
56.9300(a)
56.14107(a)
56.14107(a)
56.11002
56.4201 (a)(2)
47.41(a)
47.31(a)
56.14101(a)(3)
56. l 4103(b)

$ 1,033.00
286.00
286.00
286.00
60.00
60.00
60.00
60.00
60.00
60.00
60.00
60.00
60.00
60.00

$

$ 2,491.00

$ 1,882.00

Total:

805.00
199.00
199.00
199.00
60.00
60.00
60.00
60.00
60.00
60.00
60.00
60.00
Vacate
Vacate

WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that the negligence for Citation Nos. 6352339, 6352341, 6352342, and
6352355 be MODIFIED as outlined in the settlement motion. It is also ORDERED that
Citation Nos. 6352353 and 6352354 be VACATED.

27 FMSHRC 396

It is further ORDERED that the operator pay a penalty of $ 1,882.00 within 30 days of
this order. 2 Upon receipt of payment, this case is DISMISSED.

!:~~

Chief Administrative Law Judge

Distribution:
Patricia Drummond, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third
Avenue, Suite 945, Seattle, WA 98101-3212
Harvey W. Buche, Owner, Harvey W. Buche Road Building, Inc., 35111 S. Wilhoit Road,
Molalla, OR 97038

/fb

2

Payment may be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT
OF LABOR, PAYMENT OFFICE, P. 0. BOX 360250M, PITTSBURGH, PA 15251.

27 FMSHRC 397

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, D.C. 20001

April 22, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of MARK ORAY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 2001-23-D
BARB CD 2000-13

v.
NORTII STAR :MINING, INC.,
and JIM BRUMMETT,
Respondents

No. 5 Mine
Mine ID 15-17437

ORDER LIFTING STAY
AND
DECISION APPROVING SETTLEMENT
The stay in the above-captioned case is hereby LIFTED.
This case is before me on remand by the Commission, and involves a discrimination
complaint filed by the Secretary of Labor ("the Secretary") on behalf of Mark Gray, against North
Star Mining, Incorporated ("North Star''), and Jim Brummett, under section 105(c )(2) of the
Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. § 815(c)(2). 1
By decision issued on April 29, 2003, I found that Gray was not constructively discharged
by North Star, and that Brummett did not unlawfully threaten Gray. Consequently, I dismissed
the complaint against all Respondents, and disapproved a settlement agreement between the
Secretary and Brummett.
As a result of its review, the Commission remanded the case for reconsideration of
whether Brummett's statements to Gray were coercive and, therefore, discriminatory, by
application of its test in Moses v. Whitely Development Corp., 4 FMSHRC 1475 (Aug. 1982),

1

The original complaint was also filed on behalf of Roscoe Ray Young; his complaint
was dismissed on April 10, 2002. Mike Caudill was joined with North Star in the original
complaint; the parties did not appeal my dismissal of the charges against Caudill and dropped
him from the caption in their pleadings.

27 FMSHRC 398

a.ffd, 770 F.2d 168 (6th Cir. 1985).2
The parties have filed Joint Motions to Approve Settlement. I have reviewed the
settlement agreements and conclude that they are appropriate under the criteria set forth in
section 1 lO(i) of the Act. Under the terms of the settlement agreement between the Secretary and
Jim Brummett, Brummett has expressed remorse for his actions and has agreed to pay a civil
penalty of $1,000.00. Respecting the settlement agreement between the Secretary and North Star,
North Star has agreed to pay a civil penalty of $5,000.00 and back wages to Gray in the amount
of $150.00.
The settlement is in the public interest. WHEREFORE, the Joint Motions to Approve
Settlement are GRANTED, and it is ORDERED that Jim Brummett PAY a civil penalty of
$1,000.00, and that North Star PAY a civil penalty of $5,000.00, within thirty (30) days of this
decision. It is further ORDERED that North Star PAY $150.00 directly to Mark Gray, within
30 days of this decision. Upon receipt of payment, this case is DISMISSED.

-~

queline R. Bulluck
Administrative Law Judge
Distribution:
MaryBeth Bemui, Esq., U.S. Dept. of Labor, Office of the Solicitor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215
Mark Gray, P.O. Box 465, Grays Knob, KY 40769
John W. Kirk, Esq., Kirk Law Firm, P.O. Box 339, Paintsville, KY 41240
Jim Brummett, P.O. Box 174, Arjay, KY 40902

2

0n January 24, 2005, the Secretary filed a Petition for Reconsideration of the
Commissions's January 12, 2005 decision; the Commission denied the petition.
27 FMSHRC 399

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

April 28, 2005
VERNON HOLDEN,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. WEST 2004-364-DM
WE MD 2004-05

ROSS ISLAND SAND & GRAVEL CO.,
Respondent

Avery Point Ramp
Mine ID 35-00540

DECISION
Appearances:

James E. Davis, Esq., Talbott, Simpson, Gibson & Davis, Yakima,
Washington, for Complainant.
Richard C. Hunt, Esq. , Barran and Liebman, Portland, Oregon,
for Respondent.

Before:

Judge Zielinski

This case is before me on a complaint of discrimination filed by Vernon Holden pursuant
to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C.
§ 815(c)(3). 1 Holden alleges that Ross Island Sand & Gravel Company, ("Ross Island")
discriminated against him in retaliation for his complaints about safety by laying him off for one
week in March 2003 and by failing to call him back to work from January 15 to April 5, 2004.
A hearing was held in The Dalles, Oregon. Following the hearing, both parties moved to re-open
the record to submit additional evidence. Those motions were granted, and the parties
subsequently filed briefs.2 For the reasons set forth below, I find that Respondent has failed to
prove that he was discriminated against in violation of the Act.

1

Pursuant to section 105(c)(2) of the Act, a miner may file a complaint of discrimination
to the Secretary of Labor, who must conduct an investigation and fi le a complaint with the
Commission if she determines that the Act has been violated. Section 105(c)(3) provides that, if
the Secretary determines that the Act has not been violated, the miner may file an action before
the Commission on his own behalf. 30 U.S.C. § 815(c)(2) and (3).
2

See Orders dated December 6, 2004, and January 31, 2005, allowing supplementation

of the record with Complainant's exhibits 6 and 7, and Respondent' s exhibits 22 and 23.
27 FMSHRC 400

Findings of Fact
Through its wholly owned subsidiary, Pacific Northwest Aggregates, Incorporated
("Pacific"), Ross Island operates the Avery pit, a sand and gravel mine on the banks of the
Columbia River in Avery, Washington. Sand and gravel are extracted from the site and
transported by barge down-river to Ross Island facilities near Portland, Oregon. A small amount
of material is sold to local consumers, which is referred to as "outside sales." The Avery pit is
located on land owned by the Yakima Nation. Pacific's Handbook specifies that enrolled
members of the Yakima Nation have preference in all aspects of employment, followed by
enrolled members of other federally recognized tribes. 3 Ex. C-1 at 7.
The mining operation is seasonal. It typically begins in late March, after the U.S. Army
Corps of Engineers completes annual maintenance on navigati_o n locks. Barge traffic on the river
must be curtailed during lock maintenance. In 2003, lock maintenance was scheduled from
March 8 through March 22. Ex. R- 12. Pacific's employees were called back to work on
March 3, before lock maintenance began, because Ross Island was in short supply of a particular
product. On March 7, three of the eight men who worked at the A very pit, including two haul
truck drivers, were laid off. Tr. 398. A crew of five men was retained to perform major
maintenance projects, taking down a radial stacker and extending a tunnel. Pacific encountered
delays in that work, and did not resume full mining operations or call the truck drivers back to
work, until March 31, 2003.
Material is extracted from various sites on the Avery pit property by use of front-end
loaders, and is dumped into haul trucks. It is transported to a hopper and conveyor belt system,
and loaded onto barges. Four barges are used in the operation. Three small barges have a
capacity of 2,900 - 3,000 tons each, and can be loaded in approximately two hours. One large
barge has a capacity double that of the smaller barges. The barges are loaded in pairs, and about
10 - 15 minutes is required to reposition the barges so that the second one can be loaded. Barge
loading is a critical operation, and the loader operator and haul truck drivers attempt to keep a
constant flow of trucks to the loading hopper so that the conveyor belts do not "go dry." Barges
are loaded three days a week, on Mondays, Wednesdays and Fridays. Tuesdays and Thursdays
are less busy "lay down days," when overburden is removed and the wash plant is operated.
Tr. 410-14. Employees are encouraged to schedule matters that would prevent them from
working, e.g., doctor's visits, on these days. Tr. 410-11.
Complainant, Vernon Holden, became employed at the Avery pit in March 2001, and
performed a variety of jobs in 2001and2002. He operated equipment, including loaders, trucks,
a backhoe, and a grader. He also operated the wash plant, and performed maintenance and other
duties. Tr. 26-30; ex. C-3. By 2003, his primary assignment was driving one of the haul trucks'.

3

Holden testified that he is over 25% Native American. Tr. 91. However, he is not an
enrolled member of the Yakima Nation or any other federally recognized tribe. Tr. 115.
27 FMSHRC 401

The standard work day at the Avery pit ends at 3:00 p.m. By longstanding practice, the
men work through their 30 minute lunch period and leave a half hour early, at 2:30 p.m. The
company handbook provides that workers are to have a ten-minute rest period in the morning and
afternoon, but that the breaks will not be "scheduled since the nature of the work allows
employees to take these rest periods on an intermittent basis." Ex. C-1 at 8. The nature of the
operation also dictates that breaks not be scheduled. The barge loading system, with its extensive
conveyor belts, for example, can not simply be shut down. Holden generally felt that he was
unable to take rest periods, and had been concerned about the issue for some time. He brought
up the subject of breaks at safety meetings three or four times from 2001 - 2003. Tr. 67;
ex. R-14. On one occasion, an instructor associated with MSHA advised that equipment
operators should stop and stretch their legs if they felt that they needed a break. Tr. 67.
Holden decided to press the break issue during safety meetings, shortly after he was
called back to work in 2003. He thought that the meetings occurred on March 31 and during the
first week in April. Tr. 60-61, 62, 67-68.4 He described a safety meeting that would most likely
have occurred on a Tuesday, when such meetings were normally held. Holden noted that there
were no scheduled breaks, and proposed that on non-barge days, they get off work 20 minutes
early if they had not taken their breaks. Tr. 129, 197, 201-03. His intention was to leave earlier
to ease his commute, since he had moved to Toppenish, Washington, some 88 miles away from
the pit. Tr. 60-61. Roland Jack Spencer, a fellow haul truck driver, also lived in Toppenish.
He and Holden rode to and from work together. Tr. 61.
Holden testified that Richard Aldrich, Pacific's superintendent, reacted with hostility
when he made his proposal regarding breaks, but that Aldrich told the miners that they should
talk it over and he would do whatever they agreed to. Tr. 60-61. A few days later, there was
another meeting. None of the other miners supported Holden, except for Spencer. Tr. 62, 67-68.
Holden testified that that afternoon, he was told by Spencer that Aldrich had said that everyone
would be working the following week, except for Holden, because Aldrich wanted to punish him
for raising the break issue. Tr. 69. Spencer testified similarly, except that he stated that Aldrich
did not say why Holden was being punished. Tr. 184. Holden was never told by Aldrich, or
anyone associated with Pacific's management, that he had been laid off, and he made no effort to
confirm the lay-off. Tr. 69-70. He and Spencer testified that Holden did not go to work the
following week, but that Spencer did. Tr. 132, 185, 191, 430. Aldrich testified that Holden was
not suspended for a week because he raised the break issue, and denied saying that he intended to
punish Holden. Tr. 364.
4

His recollection of the timing of events appeared to have been based upon notations
that he had made in a journal. Tr. 59; ex. C-5. He obtained the journal in mid-March of 2003,
and made daily entries in it. One of the primary reasons that he got the journal was to record
events pertinent to perceived discrimination. Tr. 423, 434-36. When he had forgotten the
journal, he made notes on papers kept in his truck. Tr. 153-57. One of the first entries in the
journal was made on March 20, and was to the effect that Holden was called back to work on
March 31, 2003. Ex. C-5.
27 FMSHRC 402

Holden testified that Aldrich attempted to call in another driver, Ernest Leslie, to replace
him during the week's suspension. Tr. 70. Leslie testified that Aldrich called him in April, two
days before his April 22 birthday, and asked him to come in to work. Tr. 208. He replied that he
had no intention of returning to work until his entitlement to unemployment compensation ended
at the end of April. Tr. 208. Leslie's testimony is rebutted by Pacific's payroll records, which
show that he worked the entire month of April 2003, 198 hours from April 5 to May 3. Tr. 215;
ex. R-15.
Holden returned to work on March 31, 2003, and worked the remainder of the season,
except for an approximately 10-week period from June to mid-August, when Pacific's operations
were curtailed for economic reasons. In mid-December, an MSHA inspection had raised an issue
with respect to the absence of speed limit signs on the pit's roadways. Aldrich ordered signs
designating various speed limits by overnight delivery, but received only "15 MPH" signs.
Tr. 339. He decided to post the signs, even though trucks could safely travel at higher speeds on
portions of some roadways. Holden and Spencer posted the signs.
The following day, on December 19, 2003, Aldrich contacted the drivers by radio and
requested their views on whether higher speeds could safely be traveled. Tim Rambler replied
that trucks could go faster than 15 mph on the haul road on the west end of the property. Tr. 78.
Holden interpreted Aldrich's inquiry as a request to drive faster than the newly posted limit, and
declined to respond to it. Instead, he replied by telling Aldrich that if he wanted him to drive
faster he was going to have to tell him to, and stated that it was Aldrich's decision. Tr. 79.
Aldrich then made the same inquiry to Spencer, who replied as Holden had. Tr. 81, 186. Holden
and Spencer testified that Aldrich made a remark to the effect that the slow driving was
"sabotaging loading of the barges." Tr. 81, 187. Aldrich denied making the comment. Tr. 341.
A note purportedly made by Holden on December 19, relates that Holden asked Aldrich if he
thought they were trying to sabotage loading of the barges, to which no response was made.
Tr. 153; ex. C-3. Aldrich did not direct the drivers to exceed the posted limit. Tr. 137-38,
340-41.
That same day, December 19, Pacific shut down operations for the winter. Tr. 81-82.
There was an ample inventory of material at Ross Island's facility, and no more barges were
loaded. Tr. 341. Holden and most of the crew were laid off. Tr. 81. Holden gave conflicting
accounts of his expectations regarding the anticipated winter shut-down. He first testified that
Aldrich told him in December 2003 that a new barge loading system would be installed during
the winter shut-down, and that truck drivers and operators would be needed. Tr. 82-83.
However, he later testified that he found out in mid-January that men were installing the loading
system, and that Aldrich had told him on December 19 that "nobody was going to be coming
back until April." Tr. 94. He alleges that Pacific's failure to call him back to work in January
2004 was in retaliation for his December actions with respect to the speed limit signs.
Although he believed that he had been discriminated against as early as March or April of
2003, Holden did not take any action to assert a complaint of discrimination until approximately
27 FMSHRC 403

November. At that time he spoke to an MSHA inspector, who was conducting an inspection of
his truck, and told him that he wanted to talk to him. The inspector gave him his business card,
and Holden later called him to relate his complaint of discrimination. Tr. 96. He was referred to
MSHA's Vacaville, California, office, which mailed a discrimination complaint form to him.
Holden testified that he filled out the form, signed it and mailed it back to MSHA about one
week after receiving it. Tr 169. However, the date entered next to his signature on the complaint
form is February 6, 2004, and the form was received by MSHA on February 23 or 25, 2004.
Ex. R-14. Holden's complaint alleged that he had been discriminated against when he was laid
off during the "first or second week of April 2003." Ex. R-14. It made no mention of the alleged
January 2004 discrimination.
Subsequent to filing the MSHA complaint, Holden was called to return to work at the
A very pit. Phone messages were left at his home in late March, informing him that work would
begin on April 5, 2004. Tr. 89-90. He decided not to return to work. At the time he made that
decision he had not yet secured another job, and it is unclear whether he had applied for one.5
Holden testified that he made his decision to file a discrimination complaint after learning in
January 2004 that "everybody was working but me and Roland Spencer," when he had been told
that no one would be coming back until April. Tr. 94-95. He concluded that he did not want to
return to Ross Island because of the "hostile working environment" created by Aldrich, who he
believed was a racist. Tr. 144.
By letter dated May 13, 2004, MSHA advised Holden that its investigation of his
discrimination complaint had been completed and that it had concluded, on behalf of the
Secretary, that no discrimination had occurred. Ex. R-14. Holden then filed his complaint of
discrimination with the Commission, pursuant to section 105(c)(3) of the Act. The complaint
was subsequently amended to include an allegation of discrimination during the period January
15 to April 5, 2004.
Conclusions of Law - Further Findings of Fact
Timeliness of Holden's Complaint of Discrimination
As noted above, Holden did not file a complaint of discrimination with MSHA until
February 23 or 25, 2004, many months after the alleged March 2003 lay-off. That lay-off was the
only discriminatory action alleged in the complaint. Respondent argues that both claims should
be dismissed because the complaint was untimely, and the second allegation of discrimination
was not included in the MSHA complaint. Section 105(c)(2) of the Act provides, in pertinent
part:

5

Holden first testified that he had applied for a job by the time he was notified to return
to work in April of 2004. Tr. 90. Later, he testified that he had not applied for another job at the
time of the notification. Tr. 145.
27 FMSHRC 404

Any miner . . . who believes that he has been discharged, interfered with,
or otherwise discriminated against by any person in violation of this subsection
may within 60 days after such violation occurs, file a complaint with the Secretary
alleging such discrimination. (emphasis supplied.)
The Commission has held that the 60 - day time limit in section 105(c)(2) of the Act is
not jurisdictional and that non-compliance may be excused on the basis of justifiable
circumstances, including ignorance, mistake, inadvertence, and excusable neglect. Morgan v.
Arch of Illinois, 21FMSHRC1381, 1386-87 (Dec. 1999); Perry v. Phelps Dodge Morenci,
18 FMSHRC 1918, 1921-22 (Nov. 1996); Hollis v. Consolidation Coal Co., 6 FMSHRC 21
(1984); Herman v. IMCO Services, 4 FMSHRC 2135 (1982). While the Commission has not
ruled directly on the issue, it appears that a miner's reasonable fear of retaliation may be
considered in detennining whether there are justifiable circumstances for the late filing of a
discrimination complaint.6 Cf Olson v. FMSHRC, 381F.3d1007, 1014 (10th Cir. 2004). Even
if there is an adequate excuse for late filing, a serious delay causing legal prejudice to the
respondent may require dismissal. Perry, 18 FMSHRC at 1922. The burden of proving
justifiable circumstances is on the miner and the burden of demonstrating material legal prejudice
is on the mine operator.7 See Olson, 381 F.3d at 1009.
Timeliness - The March 2003 Lay-off
The first discriminatory action argued in Complainant's post-hearing brief is that he was
laid off for a week in March 2003, either the week ending March 15, or the week ending
March 29.8 Under section 105(c)(2), Complainant's allegation of discrimination should have
been filed with MSHA by May 9 or 23, 2003. The February 25, 2004, filing was over nine

6

While the Act provides comprehensive remedies for miners injured by discrimination,
those remedies would not lessen the potentially substantial economic hardship that a miner might
suffer while MSHA investigates a discrimination complaint and moves to secure temporary
reinstatement of the miner. Combined with the uncertainty of a favorable outcome of a
discrimination action, a miner considering whether to file a discrimination complaint might well
reasonably defer such action because of a fear of reprisal. Allowing justifiable circumstances to
be established by a reasonable fear of retaliation would be consistent with the intent of Congress
that the Act's anti-discrimination provisions be broadly construed. See Swift v. Consolidation
Coal Co., 16 FMSHRC 201, 212 (Feb. 1994).
7

Respondent does not contend that the delay in filing prejudiced its ability to defend.

8

As noted in the discussion that follows, there is a great deal of inconsistency in
Complainant's allegations regarding when he was discriminated against. That inconsistency has
carried over into the post-hearing brief. At one point, it is argued that Complainant was
improperly laid off from March 10 to 15, 2003. Comp!. Br. At 10-11. Other discussions address
improper punishment for the week beginning March 22. Compl. Br. At 2, 19, 20.
27 FMSHRC 405

months beyond the statutory deadline. Complainant argues that justifiable circumstances for the
untimely filing have been established by "his confusion regarding the proper procedures and his
fear that he ... would be terminated." Compl. Br. at 19.
Holden does not claim that he was unaware of his right under the Act to file a
discrimination complaint. He testified that MSHA instructors had discussed a miner's right to
file a discrimination complaint at training sessions, although he did not recall being aware of a
time frame within which such claims had to be filed. Tr. 98, 168. Holden impressed me as an
intelligent person, who understood his Mine Act and other rights, and was fully capable of
pursuing remedies under the Act and other statutory provisions. He obtained a journal in March
of 2003 for the express purpose of recording events pertinent to perceived discrimination, and
made daily entries in it. Tr. 423, 434-36. At times when he had forgotten the diary, he made
notes on papers kept in his truck. Tr. 153-57. He appeared to be familiar with terminology
associated with other claims of discrimination that he may be pursuing. Tr. 144.
Holden testified that he delayed filing his discrimination complaint because he believed
that, if he filed it while he was working, he would be fired. Tr. 92, 97-98. However, the record
as a whole establishes that Holden was not intimidated, and that he continued to press issues that
had alienated management. He discussed the issue of breaks in safety meetings conducted by
MSHA instructors, and at other times over the course of his employment. Tr. 66-67, 140, 182,
190; ex. R-14. He was threatened by management several times. Tr. 97. He did not appear to
have been intimidated by such threats. He described confrontations with management following
his pressing of the break issue in March 2003, at which attempts were made to intimidate him
and threats were made to fire him. Tr. 68, 85-87, 433. He was not intimidated by these actions,
and continued to argue his position. Tr. 86-87, 433. Notes in Holden's diary indicate that he
discussed safety issues with Aldrich in October 2003. Ex. C-5.
Based upon the foregoing, I find that Complainant has failed to carry his burden of
proving justifiable circumstances for his delay in filing the complaint of discrimination with
MSHA, regarding the March 2003 lay-off. I find that, at all pertinent times, Holden was fully
aware of his right to file a discrimination complaint, and either knew or should have known of
the 60-day time limit for filing. I also find that he has failed to prove that the delay in filing was
the result of a genuine fear of retaliation.
Timeliness - The January 2004 Lay-off
The amended complaint filed in this action alleges that Holden was discriminated against
during the period January 15 to April 5, 2004, when he was not called back to work. He claims,
in essence, that he was laid off during that period. The MSHA discrimination complaint was
filed within 60 days of that allegedly discriminatory action. However, there was no mention of
the claim in the MSHA complaint. Holden testified that he advised MSHA about the claim
during a phone call that appears to have been made shortly after he filed the complaint. Tr. 171.
He claims that he was told that he could describe the new claim during MSHA' s investigation of
27 FMSHRC 406

the original complaint.9 Tr. 95-96, 170-71. He claims to have told an MSHA investigator of the
claim in the course of an interview prompted by his original complaint. Tr. 171.
The Commission has held that discriminatory actions not specifically alleged in an
MSHA complaint may be pursued in a later action before the Commission, if they were
addressed in MSHA's investigation of the complaint. Pontiki Coal Corp., 19 FMSHRC 1009,
1016-18 (June 1997). There is nothing in the limited MSHA records that were introduced into
evidence at the hearing to confirm or rebut Holden's testimony that the claim was reported
during the MSHA investigation. Ex. R-14. The letter advising Complainant of MSHA's
determination that no discrimination had occurred, does not identify the claim or claims that were
considered. Ex. R-14. In the absence of evidence to the contrary, I find that Holden's complaint
of discrimination during the period January 15 to April 5, 2004, was brought to MSHA's
attention in the course of its investigation and that it can be maintained in this action.
The Discrimination Claims
The determination that Complainant has not established justifiable circumstances for
failing to timely file his complaint of discrimination requires dismissal of the claim as to the
March 2003 lay-off. However, in the interests of judicial economy, it will be assumed, for
purposes of argument, that justifiable circumstances were established, and both claims will be
a9dressed on the merits.
A complainant alleging discrimination under the Act typically establishes a prima facie
case by presenting evidence sufficient to support a conclusion that he engaged ih protected
activity and suffered adverse action motivated in any part by that activity. See Driessen v.
Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec'y of Labor on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec'y of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may
rebut the prima facie case by showing either that no protected activity occurred or that the
adverse action was in no way motivated by protected activity. See Robinette, 3 FMSHRC at 818,
n. 20. If the operator cannot rebut the primafacie case in this manner it, nevertheless, may
defend affirmatively by proving that it was also motivated by the miner's unprotected activity
and would have taken the adverse action for the unprotected activity alone. Id. at 817-18;
Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,

9

Holden's explanation for failing to include the claim for the January lay-off in his
written MSHA complaint is difficult to accept. He acknowledged signing the complaint form on
February 6, 2004, well after he was aware of the essential elements of the claim. It seems highly
unlikely that MSHA would advise a miner that a discrimination claim need not be reduced to
writing, except, possibly, if it was related to a discrimination complaint that had already been
filed. See the discussion above. If the phone call, in fact, did not occur until after the complaint
had been filed, Holden's explanation fails.
27 FMSHRC 407

642-43 (4th Cir. 1987) (applying Pasula-Robinette test).
While the operator must bear the burden of persuasion on its affirmative defense, the
ultimate burden of persuasion remains with the complainant. Pasula, 2 FMSHRC at 2800;
Schulte v. Lizza, 6 FMSHRC 8, 16 (Jan. 1984).
The March 2003 claim
Holden failed to establish a prima facie case with respect to his allegation that he was laid
off in March of 2003. While it appears that he engaged in protected activity, he failed to prove
that he suffered adverse action.
The thrust of his argument is that he was suspended in retaliation for raising a safety
complaint, i.e., that he and other workers were not getting rest breaks. He related advice that a
trainer associated with MSHA had provided, to the effect that drivers should take a break if they
felt that they needed one. In his written MSHA complaint, he described raising the issue that
they should get breaks "as a safety precaution." Ex. R-14. Section 105(c)(l) of the Act prohibits
'
discrimination against any miner who complains to an operator or its agent
about "an alleged
danger or safety or health violation." 30 U.S.C. § 815(c)(l).
However, as described in his and other witnesses' testimony at the hearing, his intention
was not to get rest breaks, but to get off work 20 minutes earlier to ease his "almost 100 mile"
commute. Tr. 129, 197, 201-03. Aldrich's recollection was that Holden was trying to have
breaks scheduled, which, as noted in the handbook, is not permitted by the nature of the work.
Tr. 351-52. As described at the hearing, the issue does not appear to have been raised as a matter
of safety, or perceived as such by Aldrich. Nevertheless, Holden's actions did amount to a
protest of what he perceived to be inadequate opportunities to take rest periods. 10 On the facts of
this case, I find that Holden's actions constitute protected activity under the Act.
Holden's accounts of when he allegedly suffered adverse action have been highly
inconsistent. His original complaint to MSHA alleged that he had been suspended for the "first
or second week in April 2003" or the "last week [of March] or first week in April of 2003."
Ex. R-14. The amended complaint in this action alleges that he raised the break issue at a safety
meeting in March and was suspended during the "first or second week in April, 2003." Am.
Compl. at 2.
Holden testified that he was laid off the first or second week in April. Tr. 68-69, 130.
However, Respondent introduced time slips prepared by Holden showing that, with the exception
10

The parties introduced a considerable amount of evidence on the question of whether
Holden took, or was able to take, the allotted rest breaks. I find it unnecessary to resolve that
question, because I am satisfied that Holden raised the issue of breaks in a manner that qualifies
as protected activity under the Act.
27 FMSHRC 408

of a day or two, he worked from April 1through25. Ex. R-20. After Respondent introduced
those records, Holden was re-called, and testified that he believed that he had been laid off from
April 28 to May 2, and that the safety meeting must have been the Friday before the 28th. 11
Tr. 420-21, 428-29. Because of this significant change to the adverse action allegation,
Respondent supplemented the record, post-hearing, introducing additional time slips submitted
by Complainant showing that he worked from April 27 to May 10, except for two or three days
that he was off participating in a basketball tournament. Ex. R-22, R-23.
Faced with his own time slips showing that he was not laid off for a week during the
April to early May period, Complainant now argues in his post-hearing brief that he was laid off
in March, although it is unclear when. At pages 10 - 11 of the brief, it is argued that
Complainant was improperly laid off from March 10 to 15, 2003. However, discussions at
pages 2, 19 and 20, address improper punishment for the week beginning March 22. While
Pacific's records confirm that he did not work during those weeks, it is clear that he was not laid
off for retaliatory reasons at those times.
One of the few consistencies in Holden's claim is that he was laid off following a week
during which he and Spencer worked, at the conclusion of which Spencer advised him of
Aldrich's statement that everyone but Holden would be back the following week. Tr. 68-70, 133,
428-30, ex. R-14. Another consistency is that Spencer continued to work, and worked during the
week that Holden was laid off. Tr. 132, 185, 191, 430.
It is undisputed that Holden did not work from March 8 through March 30. Ex. R-6,
R-17. · Spencer, likewise, did not work during that period. Ex. R-6, R-18. Consequently, the
alleged retaliatory lay-off could not have occurred during the week beginning on March 22,
because neither Holden nor Spencer had worked the previous week, and Spencer did not work
that week. In addition, there are no entries in Holden's journal relating to the alleged
discriminatory events for that time frame. Ex. C-5. It is inconceivable that events of such
importance would not have been contemporaneously recorded in the journal which he obtained

11

Holden's allegations, regarding meetings at which the break issue was discussed,
show a similar lack of consistency. His MSHA complaint describes a safety meeting that
occurred during the last week of March or the first week in April, at which he raised the break
issue and was called a troublemaker. Ex. R-14. The complaint also describes a meeting that
occurred "the next day," in the lunch room, that lasted over an hour. Ex. R-14. Only Holden,
Aldrich and one other person were involved in that meeting, at which Aldrich threatened to fire
Holden. At the hearing, Holden testified that he raised the break issue at an informal meeting on
March 31. Tr. 61-61. He then described a meeting with the whole crew that occurred two days
later, during the first week in April, at which he was called a troublemaker. Tr. 62, 67-68. He
later described an hour-long meeting in the lunch room, with Aldrich and one other person, that
occurred "after [he was] off the week in April." Tr. 85. When re-called to the stand, he
discussed a meeting in the lunch room, at which Aldrich threatened to fire him, that occurred
after a safety meeting on March 4, before he was laid off. Tr. 433-35.
27 FMSHRC 409

for the purpose of recording information pertinent to perceived discrimination.
The week of March 10 through 15, is a more plausible possibility for the alleged
retaliatory lay-off; however, only slightly so. Spencer and Holden had worked the previous
week, despite Holden's initial testimony to the contrary. 12 There also had been a safety meeting
the previous Tuesday, March 4, conducted by Aldrich. Tr. 350-53; ex R-19. Holden apparently
did not procure his journal until mid-March, which could at least partially explain the absence of
entries for that period. 13 However, Pacific's records clearly establish that Spencer did not work
during the week of March 10. Ex. R-6, R-18. It is also undisputed that maintenance on the river
locks started that week, which dictated that virtually all mining activity had to be curtailed.
Complainant supplemented the record, post-hearing, with records from the Washington
State Employment Security Department, purporting to show that Holden received unemployment
compensation benefits for the week ending March 15, but that Spencer did not. He argues that
those records establish that Spencer worked that week, and that Holden did not. However, the
unemployment records do not explain why Spencer did not receive benefits. He may have failed
to apply for them, or he may have been working somewhere other than at Pacific. What is clear,
is that he did not work at Pacific that week. Ex. R-6, R-18. Consequently, the alleged retaliatory
lay-off, as Holden and Spencer described it, could not have occurred during the week of March
10.
I find that Complainant has failed to establish that he suffered adverse action. 14 He and
Spencer were laid off starting the week of March 10 solely because of the curtailment of mining
operations, necessitated by the closure of navigation locks on the river.

12

Holden testified that he did not work or attend a safety meeting at the beginning of
March. Tr. 59-60, 131, 151. However, Respondent introduced into evidence time slips
submitted by Complainant, himself, showing that he worked a total of 48 hours from March 3
through 7, 2003. Ex. R- 17.
13

Of course, the placement of the entry in the notes section at the end of April remains

puzzling.
14

Complainant apparently claims to have suffered other adverse action, i.e., the denial of
rest breaks during his entire period of employment with Pacific, beginning in 2001. Comp!.
Br. at 1-2, 20-21. However, he makes no plausible argument that he was denied breaks from
2001 to 2003, in retaliation for engaging in activity protected under the Act, i.e., his raising and
pressing the issue as a safety concern in March of 2003. Complainant cannot assert his claim to
wrongfully denied wages under Washington State law in this proceeding. Nor can he litigate
here the allegation included in his amended complaint, that he was discriminated against because
of his status as an American Indian.
27 FMSHRC 410

Discrimination from January 15 to April 5. 2004
Complainant claims that Aldrich's questioning of the truck drivers about whether it
would be safe to drive faster than 15 mph was "an effort to coerce the drivers into violating the
posted speed limit." Compl. Br. at 14. He further contends that his and Spencer's resistence to
the inquiry, and their continued adherence to the 15 mph speed limit, led to adverse
consequences, i.e., that Rambler "ended up taking Complainant's (and Spencer's) truck driving
job commencing in January 2004." 15 Id.
This claim has deficiencies similar to those of the first claim on the issues of protected
activity and adverse action. There had been no speed limit signs in the area in question, and
drivers had traveled faster than 15 mph because the haul road was well-maintained and it was
safe to do so. Tr. 193, 267, 313. Even Spencer stated that he safely drove faster than 15 mph
before the signs were posted, and that 25 mph would have been a safe speed. 16 Tr. 187-89, 193.
Aldrich had the signs posted because an MSHA inspector had suggested it and they were the only
ones available, which he and Rambler characterized as a misunderstanding. Tr. 313-14, 399-400.
The inspector had advised that the speed limit could be adjusted, and Aldrich reasonably sought
the drivers' input on whether a speed higher than 15 mph would be appropriate. 17 Tr. 377-78.
He most likely was not satisfied that trucks were traveling at 15 mph on a haul road that could
safely be driven at the faster speeds that the trucks had traveled prior to installation of the signs.
As Dave Clark, the loader operator and lead man for the crew, stated, the signs slowed loading of
the barges. Tr. 262. While Aldrich's inquiries may reasonably have been interpreted as a
preference that the trucks be driven faster than 15 mph, he did not direct that the trucks operate
faster than the posted limit. Tr. 137-38, 340-41. Nor did he attempt to pressure the drivers into
operating the trucks at a speed that would have been inappropriate for the conditions. I also find
that Aldrich did not make a remark to the effect that Holden and Spencer were "sabotaging"
loading of the barges. A note that Holden claims to have made that day, apparently a day that he
had forgotten his journal, describes only Holden's use of the word "sabotage" in an inquiry to

15

Aside from the conceptual difficulty of one individual taking the jobs of two drivers,
Spencer did not share this view. He testified that the work being done over the winter shut-down
was not the type of work he would normally do, and that he suffered no adverse consequences
because of his responses to Aldrich's inquires. Tr. 187, 189.
16

The 15 mph signs on the haul road were later replaced with 25 mph signs. Tr. 191-92,
339; ex. R-3.
17

The Secretary's regulations provide that "Operating speeds shall be consistent with
conditions of roadways, tracks, grades, clearance, visibility, and traffic, and the type of
equipment used." 30 C.F.R. § 56.9101.
27 FMSHRC 411

which Aldrich did not respond. 18 Ex. C-3.
It is difficult to characterize Holden's actions as protected activity. His refusal to respond
to Aldrich's inquiry, as well as his insistence on driving no faster than the newly posted speed
limit, were not motivated by safety concerns. At no time did Holden assert that driving 20 or
25 mph on the haul road would have been unsafe. From the testimony of Spencer and others, it
is apparent that haul truck drivers, including Holden, drove at the higher_speed before the signs
were posted, and that it was not unsafe to do so. Holden's chief concern appears to have been his
personal responsibility in the event of a collision or accident. Tr. 79. While driving at a slower
speed will almost always be safer, on this record, I find that Holden's actions did not constitute
protected activity.
I also find that Complainant did not suffer adverse action as a result of any activity that he
engaged in with respect to the speed limit issue. He had been specifically advised that major
maintenance projects were going to be performed over the winter shut-down. Tr. 82-83. He and
Spencer were production haul truck drivers, and there was no such work during the shut-down.
Spencer testified that the work was not the type of work that he would normally have done, and
that nothing happened to him as a result of his replies to Aldrich's inquiries. Tr. 187, 189.
Aldrich selected the members of the work crew based upon the type of work that needed to be
done. Tr. 359-60, 401-03. Some of the work, e.g., excavation, was performed by a contractor.
Tr. 359. There was very little need for trucks. Tr. 264, 268-70. Rambler was part of the work
detail and had experience as a haul truck driver. Tr. 309-10. He had provided relief to haul truck
drivers so that they could take breaks, and he operated a truck, when needed, during the project.
Tr. 204, 270-71, 311. Rambler was also an enrolled member of the Apache tribe, and was
entitled to hiring preference at Pacific's Avery pit site. Tr. 309; ex. R-1. Charpentier, who had
been originally hired as a maintenance worker, also worked on the project from time to time.
Tr. 359.
I find that Holden would not have been scheduled to work on the construction project
during the winter shut-down, whether or not he engaged in protected activity, with respect to the
speed limit or any other safety issue. Aldrich's selection of men to work on the maintenance
projects was based entirely upon bona fide business considerations. 19 Complainant has not
established that he suffered adverse action as a result of his claimed protected activity with

18

There are only two entries in Holden's journal relating to speed for the week of
December 15, 2003. The first, at the top of the page, reads ''Tim [not Aldrich] tried to get me+
Jack to drive faster after MSHA [?] ...." The second, in the space allocated to Wednesday,
December 17, reads: ''Tim driving over speed limit." Ex. C-5.
19

There was a considerable amount of evidence introduced by both parties on Holden's
skills, attitude and general value as an employee and co-worker. That evidence has not been
discussed, because Respondent made clear that Holden's work schedule was not established
based upon any perceived shortcomings he might have had as an employee.
27 FMSHRC 412

respect to the speed limit issue.

ORDER
For the reasons stated above, I find that Complainant has failed to carry his burden of
establishing that justifiable circumstances existed for failing to timely file his complaint of
discrimination with MSHA, with respect to the alleged March 2003 lay-off. In addition, I find
that Complainant has failed to establish a prima facie case of discrimination as to either his
March 2003, or January 15 to April 5, 2004, claim. Alternatively, I find that Ross Island has
established that its determinations not to call Complainant to work during March 8 to 31, 2003,
and January 15 to April 5, 2004, were the result of bona fide business reasons, and that it would
have made the same decisions, regardless of any protected activity that Complainant might have
engaged in.20
Ross Island did not discriminate against Complainant in violation of the Act.
Accordingly, the Discrimination Complaint, as amended, is hereby DISMISSED.

Distribution: (Certified Mail)
James E. Davis, Esq., Talbott, Simpson, Gibson & Davis, P.S., P.O. Box 590, Yakima, WA
98907
Richard C. Hunt, Esq., Barran and Liebman, 601SW2°d Avenue, Suite 2300, Portland, OR
97204
/mh

20

Had Complainant established a prima facie case, Respondent would have established
its affirmative defense to the claims. See Sec'y of Labor on behalf of Chacon v. Phelps Dodge
Corp. , 3 FMSHRC 2508, 2516-17 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir.
1983); Haro v. Magma Copper Co, 4 FMSHRC 1935, 1938 (Nov. 1982).
27 FMSHRC 413

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001·2021

April 29, 2005
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2004-164
A.C. No. 15-17234-21221

v.
LONE MOUNTAIN PROCESSING, INC.,
Respondent.

Docket No. KENT 2004-215
A.C. No. 15-17234-23900
Huff Creek No. 1

DECISION
Appearances: Neil Morholt, Esq., and MaryBeth Bernui, Esq., U.S. Department of Labor,
Nashville, Tennessee, Elmer Keen 1, William Johnson2 , and Danny Deel3, for the
Petitioner;
Noelle M. Holladay, Esq., and Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant &
Combs, Lexington, Kentucky, for the Respondent.
Before:

Judge Weisberger
STATEMENT OF THE CASE

These cases are before me based upon Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (Secretary) alleging violations by Lone Mountain Processing , Inc. (Lone
Mountain) of various mandatory safety standards set forth in Title 31 of the Code of Federal
Regulations. The cases were heard in Johnson City, Tennessee, on January 19, 2005. Subsequent
to the hearing the parties filed post hearing briefs .
I.

Docket No. KENT 2004-164
A.

Citation No. 7536380

1

Mr. Keen represented Petitioner in Citation No. 7586387

2

Mr. Johnson represented Petitioner in Citation No. 7536389.

3

Mr. Deel represented the Petitioner in Citation No. 7536390.

27 FMSHRC 414

The Inspector's Testimony
Lone Mountain operates the underground coal mine at issue. On November 24, 2003, MSHA
inspector Robert D. Clay, a certified electrician and electrical inspector, inspected various circuit
breakers located on a panel in the 003 unit. The breakers are designed to energize and de-energize
mining equipment. He examined an energized 225 amp, 480 volt breaker, but was unable to
determine which specific piece of equipment received power from this breaker. Clay traced the cable
that had been plugged into the receptacle of the circuit breaker and observed that it ran to a roof
bolter.4
The parties stipulated that this circuit breaker was labeled "in numerals No. 6". (Tr. 14). A
label, approximately 3 inches by 4 inches, had been placed directly above the circuit breaker.
According to Clay, a miner who did not work on a regular basis on the section would not have any
way of knowing what specific equipment was served by this circuit breaker. Accordingly, if such
a person would be instructed to de-energize the breaker and disconnect a cable, he might
inadvertently de-energize the wrong breaker. As a result when the miner would attempt to remove
the disconnecting device he would receive serious bums and electrical shock which could be fatal.
Clay opined that breakers are required to be identified as to the piece of equipment that they
serve. He concluded that since the breaker at issue was not marked in this fashion, it had not been
properly identified. He issued Citation No. 7536380 alleging a violation of 30 C.F.R. § 75.904
which provides, as pertinent, that "[c]ircuit breakers shall be marked for identification."
The Applicability of U.S. Steel Mining Co. 30 C.F.R. § 75.601

In support of its position that a breaker must be identified as to the equipment it services,
the Secretary relies on Secretary ofLaborv. U.S. Steel Mining Co., IO FMSHRC 1138, 1141 (Sept.
1988). U.S. Steel, supra, involved an alleged a violation of 30 C.F.R. § 75.601, which requires
disconnecting devices used to disconnect power from trailing cables to be plainly marked and
identified. In U.S. Steel, supra, the operator was cited for having marked the receptacle on a panel
to identify the specific circuit breaker that controlled the receptacle but did not mark the receptacle
with the name of the piece of equipment that it served. The Commission held that the Secretary's
position requiring that cable plugs and receptacles to be labeled identically was reasonable .
The Secretary, in its brief, after discussing U.S. Steel, supra, argues that under "controlling
case law" the "only reasonable interpretation" of Section 904, supra, is that the circuit breaker, plug,
and receptacle be labeled in a similar manner.
I find that this reliance is misplaced, as the issue presented in U.S. Steel, supra, is inapposite
to the issue presented herein. In U.S. Steel, supra, the regulatory standard before the Commission,

4The plug (Cathead) on this cable was labeled "roof bolter". (Tr. 14)

27 FMSHRC 415

Section 75.601, supra, contains language that is not similar to Section 904, supra, at issue herein.
The operative phrase in Section 601, supra, provides as follows: "disconnecting devices used to
disconnect power from trailing cables shall be plainly marked and identified." (Emphasis added.)
In contrast, Section 904, supra, requires that circuit breakers shall be marked for identification. Thus,
it does not follow that the Commission's holding in U.S. Steel, supra, must be extended to Section
904, supra. In this connection, it is significant to note that the Commission, in U.S. Steel, supr~ at
1142, explicitly stated that the case before it required it to construe only Section 601, supra,"... and
we reserve construction of other standards addressing other concerns to cases raising such issues."
Further, the specific issue presented before the Commission in U.S. Steel, supra, was whether
the term "disconnecting device" in Section 601, supra, encompasses both the plug of a trailing cable
and the receptacle. As such, the resolution of that issue is not germaine to the case at bar, which
involves an interpretation of the scope of the requirement in Section 904, supra, that circuit breakers
be marked for identification.
Further Discussion
Section 904, supra, sets forth in clear plain language that circuit breakers "shall be marked
for identification". (Emphasis added.) Webster's Encyclopedic Unabridged Dictionary (1994 Ed.)
(Webster's) defines marked as "* * * 3. having a mark or marks ...." A "mark" is defined in
Webster's as * * * 5. "an affixed or impressed device, symbol, inscription, etc., serving to give
information, identify .... " ''To mark" is defined in Webster's as follows: "v.t. ... 28. to put a
distinguishing feature of ... 30. to furnish with figures, signs, tags, etc." Webster's defines
"identification" as "l. the act of identifying." Webster's defines "identify" as "l. to recognize or
establish as being a particular person or thing ...."
Thus the plain meaning of the words in Section 904, supra, requires, merely, that the circuit
breaker must be identified in some fashion. The evidence is clear and the parties have so stipulated,
that the circuit breaker cited was labeled as No. 6. The corresponding receptacle was also labeled
No. 6. Thus, the record establishes that the breaker at issue, labeled No. 6, was clearly marked in
a fashion sufficient for identification.5 There is not any requirement in the plain unambiguous
wording of Section 904, supra, that the breaker be identified as to the specific piece of equipment
it is serving.6 To so find would have the effect of amending the regulation by setting forth an
5

It is significant to note the uncontradicted and unimpeached testimony of Respondent's
witnesses, Sheffield and Webb, that Lone Mountain has been using the numerical method of identifying
circuit breakers since the mine opened in 1993, and has never been cited before for this method of
marking.
6

I take cognizance of Program Policy Letter No. POV-V-2(PPL) (effective June 17, 2003), which
sets forth as follows: "Circuit breakers shall be marked to clearly identify the circuit or machine
receiving power through the circuit breaker ... . In order to comply with the provisions of Sections
75.601, 75.903, 75.904, an example is to label the loading machine cable plug, receptacle, and the circuit
breaker through which the loading machine is receiving power as 'loader"'. (Government Exhibit 1)

27 FMSHRC 416

additional requirement. Such a step would require notice and comment.
For all the above reasons, I conclude that the Secretary has not established that Lone
Mountain violated Section 904, supra, and accordingly, Citation No. 7536380 should be dismissed.
II.

Docket No. KENT 2004-215
A.

Citation No. 7536387

According to Clay, on November 24, 2003, he observed that a pilot circuit wire was not
connected at the belt starting box enclosure for the No. 2 belt drive motor. Clay concluded that
because the pilot wire had not been connected, there was not a complete monitoring circuit for the
motor starter enclosure. Clay issued a citation alleging a violation of 30 C.F.R. § 75.902 which
provides, as pertinent, that "grounded systems shall include a fail-safe ground check circuit to
monitor continuously the grounding circuit to assure continuity which ground check circuit shall
cause the circuit to open when either the ground or pilot check wire is broken .... "
Lone Mountain argues that the Secretary did not establish that it (Lone Mountain) violated
Section 75.902, supra, in that the Secretary failed to prove that the belt drive did not include a failsafe ground check circuit, or that ~ pilot wire was not connected to monitor the system. In this
connection, Lone Mountain relies on testimony of Sheffield that~ pilot wire was connected which
monitored the entire belt drive system. In essence, according to Sheffield, the belt drive system
consisted of four motors powered by two cables that ran from the power center to the belt starter box.
He said that each of the cables had a ground wire and a pilot wire and only one of these needed to
be connected to monitor the belt drive system. However, his explanation that only one pilot wire,
is sufficient to protect the entire belt drive system, including all four motors is confusing and not
clear. In this connection, Sheffield's testimony is as follows:

Q. Let's talking about P 1. (Sic) [the pilot indicator in exhibit R3].
A. P 1. was continuous through the circuit to the belt motors, the way it was
supposed to be.

Q. So, w·a s it connected as required under law?

A. Yes. (Tr. 138)

***

The Secretary aruges that this interpretation of Section 904, supra, should be given deference. However,
because the plain meaning of Section 904, supra, is clear and unambiguous, there is not any mandatory
requirement to give deference to the Secretary's interpretation as set forth in the PPL. (See, Chevron
U.S.A. Inc. v. Natural Resources Defense Counsel, Inc. 467 US 837, 843 (1984).

27 FMSHRC 417

A. No. What was cited, if I could explain: This shows one pilot wire being
used. This supply cable - these cables are identical and they both go back to the
power center. You don't use this monitor wire; you only use one. And back at the
power center it stays - this receptacle uses a pilot interlock jumper in the plug. Do
not connect the pilot wire in the trailing cable jumper to the two pilot ends and the
plugs. So, we only use one of the pilot wires. The cables are identical, so you only
use the pilot wire in this case. (Tr. 140-141)

***
A. Okay. And then on these motors, I won't draw the phases, but each motor
has a cable going to it.

Q. Out of the starting box?
A. Out of the starting box. Each one of them has a ground on all four
motors. Do you want me to put all four of them on there? (Tr. 151)

***
Q.
Tell me why that satisfies the regulation that we're talking about.
Why is that a pilot monitor system?

A.

Because it is monitoring continuously ...

Q.

And how is it monitoring continuously?

A.
... and in this system it [the pilot wire inside cable "A" depicted in
Exhibit R-5] is internally connected in the plug, it comes into the starter, which it
actually ties into the pilot wire, and you can tie it into one of these cables or you can
tie it into all four cables. As far as the law goes, it really doesn't matter. Internally,
every one of these 4-aught cables has a monitor wire. You can come down and tie
it into the one in this cable, bring it down here, tie it to ground in this motor.
Q.

Tie it to the ground in this motor?

Or to the frame in this motor, not to the ground. Tie it in a different
A.
location, which connects the whole one piece of equipment which has multiple
motors.

Q.

Will that complete the circuit, then, for this pilot monitoring?

A.

Yes. (Tr. 152 - 153)

27 FMSHRC 418

***
Q.
Okay. Now, without going through all of this, this pilot wire in this
"B-system cable", let's say, is that pilot wire connected, or was that pilot wire in this
particular situation connected this cathead, ...

A.

No.

Q.

. .. the plug?

A.

No sir.

Q.

And why not?

A.

Because in this system you only use the pilot wire in this cable.

Q.

Which is System A?

A.

Syst -- Cable A.

Q.

Yes.

A.

And it interlocks through the cathead of Cable B. (Tr. 155 - 156)

***
Q.
That's okay. That's okay. I want the simplest way to explain it
whatsoever. Is there an interconnection?
A.

Yes, there is an interconnection in the power center itself.

Q.

In the power center.

A.

Yeah. The pilot wire comes through.

Q.

Yes sir.

A.

These are closed.

Q.

The pilot wire is System A.

A.

And pilot wire in Cable A, ...

Q.

Yes.
27FMSHRC419

A.
CableB.
Q.

... or System A, comes over, goes back into the receptacle that feeds

Yes sir.

A.
It actually interlocks through two internal prongs, comes back into the
power center, which makes up the ground-check circuit. (Tr. 156 - 157)

***

Q.
In other words, the Cable B, the power, the three power leads to Cable
B, do they come into this starting box? How do they get to these motors? ...
A.

You've got two contactors. Two motors are run by this power cable.

Q.

Which power cable?

A.

These two motors are run by Power Cable B. (Tr. 159)

***
THE COURT: Are you now saying that coming out of the starter box there
were two cables from the A System going to two other motors?
A.

That's basically how it works, yes. Feeding from A and from B. (Tr.

160)

***
Q.
Okay, Mr. Sheffield, I guess first of all, the whole idea, let me ask
you, is to provide a pilot monitoring for what here?
A.

The belt drive.

Q.

The belt drive

A.

Yes.

Q.

And the belt drive is composed of how many motors?

A.

Four motors.

Q.

So, are we trying to monitor the motors, then, the pilot to the motors?

27 FMSHRC 420

What are we trying to monitor?
A.

We're monitor this. It's one piece of equipment.

THE COURT: If "this" the belt drive?
A.

Yes.

Q.

So the belt drive, is that the one system that we're trying to monitor?

A.

Yes.

Q.
Okay. Now, this system, then, this belt-drive system, we're having
power coming in from how many different places?

A.

Two different power feeds: AC/DC.

Q.
AC and DC. All right. So, is A and B both part of this whole system
to power this drive?
A.

Yes.

Q.
Now within A and B, let me just ask you this: If you have to have a
pilot monitor, do you have to have a pilot monitor wire connection in A and B?

A.

No. Sir.

Q.

And why not?

A.
Because they are interconnected through the interlocked circuit of
Cable B. going internally into the power center.
So, if we only have a pilot monitoring system in Cable A, does that
Q.
provide the monitoring system for the entire drive?

A.

Yes sir.

Q.

Does it provide it for the entire four motors of that drive?

A.

Yes sir. (fr. 161-162)

***

27 FMSHRC 421

Thus, I find that Sheffield's testimony fails to convincingly establish how there can be a
complete circuit for the entire belt system, i.e., from the power center, through all four motors and
back to the power center, if there are two cables running to the power center, one of which does not
have the pilot ground wire connected to the circuit box.
Therefore, for all the above reasons. I find that the Secretary has established that Lone
Mountain violated Section 902, supra. Considering all the factors set forth in Section 1 IO(i) of the
Act, I find that a penalty of $60.00 is appropriate.
B.

Citation No. 7537389

In the inspection on November 24, Clay observed that a conduit leading to the No. 4
continuous haulage bridge carrier was cut in two locations, and that the pick breaker handle was
missing. Clay issued a citation alleging a violation of 30 C.F.R. § 75.503, which, in essence,
provides that electrical equipment used inby the last open crosscut be maintained in a "permissible
condition".

According to Clay, the purpose of the conduit was to protect the power cable within and to
eliminate a possible flame path in the event of a methane release. Clay indicated that the interior
cable was exposed in the two locations where the conduit was damaged.
Clay opined that the lack of a handle made the pick breaker non-permissible because " ... it
comes approved in a certain manner by Mine Safety and Health. (Sic.) And that piece of equipment
being approved in its entirety is with the permissible and explosion-proof covers on it; and that
includes handles and lock-washers, and everything that goes with it." (Tr. 175) Aside from this
opinion, the Secretary did not proffer any documentary evidence to establish the permissibility of
the pick breaker, i.e., that a handle was required to make it permissible.
"Permissible" is defined in Section 318(i) of the 1977 Mine Act, 30 U.S.C. § 801, supra, et
·seq., and 30 C.F.R. §75.2(i) as follows:
"[P]ermissible' as applied to electric face equipment means all electrically operated
equipment taken into or used inby the last open crosscut of an entry or a room of any
coal mine the electrical parts of which ... are designed. constructed. and installed, that
such equipment will not cause a mine explosion or mine fire, and the other features
of which are designed and constructed, in accordance with the specification of the
Secretary, to prevent, to the greatest extent possible, other accidents in the use of
such equipment .... [Emphasis added.]
Based on this definition, it appears that the test of permissibility regarding a non-electrical
feature, i.e., a handle, is based on the specification of the Secretary. In the case at bar, the Secretary
has failed to adduce any evidence or make any reference to any of the Secretary's specifications that
would indicate that the pick breaker at issue requires a handle in order to be permissible. Further,
27 FMSHRC 422

that the pmpose of permissibility is to assure against a mine explosion or fire. (See, Solar Fuel Co.,
3 FMSHRC 1384 (June 1981)). The inspector did not explain how the missing handle contributed
to a risk of a fire or an explosion. According to the uncontradicted testimony of Webb, although the
handle was missing, there was no damage to the shaft, and the breaker could still be de-energized
at the power center by pulling the cathead or plug.
According to the citation issued by Clay, a 480 volt power cable was exposed because of a
cut in the conduit. However, on cross-examination, he indicated that "this was a 480 volt system;
...." (Tr. 177), but admitted that he did not know the voltage of the cable. On the other hand, Webb
indicated, in testimony that was not contradicted or impeached, that the cable at issue was a
communication cable carrying approximately two volts, and that the purpose of the cable was to
transmit computer signals. The Secretary has not proffered any evidence to establish that such a
cable must be permissible. Indeed, Clay admitted on cross examination that "the law" does not
require communication cables to be in a conduit. (Tr. 178)
Within the framework of this evidence, I find that the Secretary has failed to establish that
the cited conditions regarding the conduit, and pick breaker handle, made any equipment nonpermissible. Thus, I find that it has not been established that Lone Mountain violated Section 503,
supra.
C.

Citation No. 77537390

According the Clay, the conduit leading into the No. 2 continuous haulage bridge carrier had
been cut in two locations. The cuts were approximately one-half inch wide and one inch long. Clay
indicated that the purpose of the conduit was to protect the power cable within, and eliminate a
possible flame path in the event of a methane release. Clay cited Lone Mountain for violating
Section 503, supra.
According to Clay, there was not any damage to the cable enclosed within the conduit.
Further, based on the uncontradicted and unimpeached testimony of Webb, the capacity of the cable
at issue was approximately two volts and served as a communication cable similar to that discussed
regarding Citation No. 7536389. Aside from the Secretary's assertion in its brief that the cut "was
clearly violative of the permissibility requirement", the Secretary did not adduce any evidence
establishing such a communication cable was required to be permissible. Essentially for the same
reasons set forth above regarding Citation No. 7537389 I find that the Secretary herein has not
established a violation under Section 503, supra.
D.

Citation Nos. 7536378, 7536381. 7536382, 7536383, 7536384, 7536385, 7536391.
and 7536392

The parties filed a Joint Motion to Approve Settlement of the civil penalty proceedings
regarding these citations. The original assessment for these citations was $1,824.00. The parties
agreed to settle for a penalty of $756.00. Based on the parties' representations, and the record
27 FMSHRC 423

regarding these citations, I find that the proposed penalty is proper within the framework of the
Federal Mine Safety and Health Act of 1977, and I grant the Motion.

Order
It is Ordered that, within 30 days of this decision, Respondent pay a total civil penalty of
$816.00 based on the parties' settlement, and the violation of Section 75.902, supra. It is further
Ordered that Citation Nos. 7536380, 7537389, and 7537390 be Dismissed.

~~
Avram Weisberger
Administrative Law Judge

Distribution List: (Certified Mail)
Neil Morholt, Esq., and MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Department of Labor,
2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215
Elmer Keen, CLR, and William Johnson, CLR, U.S. Department of Labor, MSHA, 3837 Route U.S.
Highway 25-E, Barbourville, KY 40906
Danny Deel, CLR, U.S. Department of Labor, MSHA, 100 Fay Ramsey Lane, Pikeville, KY 41501
Noelle M. Holladay, Esq., and Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, LLP, 250
West Main St., Suite 1600, Lexington, KY 40507
/sb

27 FMSHRC 424