FEBRUARY 2002

COMMISSION ORDERS

02-19-2002 United Metro Materials
02-25-2002 Tony Stanley employed by Mine Management
Consultants, Inc.
02-27-2002 Original Sixteen to One Mine, Inc.

WEST 2000-35-RM

Pg. 140

VA
2001-42
WEST 2000-63-M

Pg. 144
Pg. 148

PENN 99-158-D
VA 2001-20
CENT 2001-102
CENT 2001-284-M
KENT 2000-133
CENT 99-20-M
WEST 2000-368-M
WEST 2001-150-DM

Pg. 151
Pg. 156
Pg. 165
Pg. 167
Pg. 176
Pg. 189
Pg.201
Pg.232

CENT 2001-363-M
WEVA 2002-21
EAJ 2001-4

Pg.247
Pg. 249
Pg.252

ADMINISTRATIVE LAW JUDGE DECISIONS

02-01-2002 Secretary of Labor o/b/o Leonard Bemardyn v.
Reading Anthracite Co. (partial decision)
02-05-2002 Mining Property Specialists, Inc.
02-13-2002 San Juan Coal Company
02-14-2002 Nelson Brothers Quarries
02-14-2002 Cougar Coal Company, Inc.
02-20-2002 Chino Mines Company
02-21-2002 Tide Creek Rock Inc.
02-22-2002 Mike Fletcher v. Morrill Asphalt Paving (partial dee.)
ADMINISTRATIVE LAW JUDGE ORDERS

02-01-2002 Cactus Canyon Quarries of Texas, Inc.
02-06-2002 Consolidation Coal Company
02-14-2002 Pronghorn Drilling Co. (amendment to decision)

i

FEBRUARY 2002

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

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

ii

COMMISSION ORDERS

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

February 19, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 2000-35-RM
WEST 2000-36-RM
WEST 2000-180-M

V.

UNITED METRO MATERIALS

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: Verheggen, Chairman, and Beatty, Commissioner
The Secretary of Labor has filed a motion to vacate the direction for review in which
United Metro Materials joins. The Secretary states that she has vacated the citations in the
above-captioned proceeding and that she will not enforce the citations. In light of the
representations made in the joint motion, the Commission grants the motion and vacates the
direction for review.

(
Robert H. Beatty, Jr., Co

140

Commissioner Jordan, concurring:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (1994) ("Mine Act"). In August 1999, a laborer working at a plant operated by
United Metro was fatally injured after he was caught in a conveyor belt roller while attempting to
clear it with a hoe. 23 FMSHRC 1085, 1086. (Sept. 2001) (AU). After investigating the
accident, MSHA cited the operator for violations of several regulations. One citation charged the
operator with a failure to adequately guard the return roller, in violation of30 C.F.R.
§ 56.14107(a). The second citation alleged a failure to shut off the conveyor prior to cleaning the
rollers, as required by 30 C.F.R. § 56.14202. Id. at 1086; Narrative Findings for a Special
Assessment. Fourteen months later the Secretary proposed a penalty of $40,000 for the first
citation and $35,000 for the second. 23 FMSHRC at 1086-1087. The operator contested these
citations and the proposed penalties.

In an order dated September 28, 2001, Judge Cetti dismissed the proceedings. 23
FMSHRC at 1089. Relying on section 105(a) of the Act, 1 the judge concluded that the Secretary
had failed to notify the operator of the civil penalty proposed within a reasonable time after the
termination of the investigation that resulted in the issuance of the citations. Id. By order dated
October 26, 2001, the Commission, on its own motion, directed review of the judge's decision.
The Secretary has notified the Commission that the citations under review were vacated on
November 8, 2001 and she now moves the Commission to dismiss these proceedings as moot.
Sec,y Notice of Vacating of Citations and Motion to Vacate the Direction for Review at 1-2.
United Metro Materials joins in this motion. United Metro Letter of November 14, 2001.
The Commission initially ordered review of this matter because the judge's decision
raised significant legal and policy issues. Although the Secretary's actions raised eyebrows, I
nevertheless conclude that this proceeding must now be dismissed as moot.

1

Section 105(a) provides:

If, after an inspection or investigation, the Secretary issues a
citation or order under section l 04, he shall, within a reasonable
time after the termination of such inspection or investigation,
notify the operator by certified mail of the civil penalty proposed to
be assessed under section 110(a) for the violation cited and that the
operator has 30 days within which to notify the Secretary that he
wishes to contest the citation or proposed assessment of penalty.
30 U.S.C. § 815(a).
141

The Supreme Court in Cuyahoga Valley Railway Co. v." United Transportation Union,
474 U.S. 3, 7-8 (1985) (per curiam) held that the Secretary's decision to withdraw a citation
against an employer under the Occupational Safety and Health Act was not reviewable by the
Occupational Safety and Health Review Commission. The Court pointed out that allowing the
Commission to overturn the Secretary's decision to withdr~w a citation would amount to
allowing the Corrunission "to make both prosecutorial decisions and to .serve as the adjudicator
of the dispute, a commingling ofroles that Congress did not intend," 474 U.S. at 7. Following
Cuyahoga, this Commission in RBK Construction Inc., 15 FMSHRC 2099, 2101 (Oct. 1993),
concluded that it lacked the authority to overturn a Secretarial decision to-withdraw or vacate a
citation.
Accordingly, in light of the Secretary's vacation of the citations at issue, I join the
majority in vacating our direction for review and dismissing these proc.eedings.

142

Distribution
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
James A. Lastowka, Esq.
Arthur G. Sapper, Esq.
McDermott, Will & Emery
600 13 1h Street, N.W.
Washington, D.C. 20005
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

143

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

February 25, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2001-42
A.C. No. 44-06889-03502 A TQI

v.
TONY M. STANLEY, employed by
MINE MANAGEMENT
CONSULTANTS, INCORPORATED

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER
BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On October 25, 2001, the Secretary of Labor
filed with the Commission a petition for assessment of civil penalties against Tony M. Stanley,
employed by Mine Management Consultants, Inc. ("MMC"), alleging that, as an agent of MMC,
Stanley should be held liable pursuant to section l lO(c) of the Mine Act, 30 U.S.C. § 820(c), for
knowingly authorizing, ordering, or carrying out an alleged violation of 30 C.F.R. § 75.202(b) by
MMC. Sec'y Proposed Assessment, Ex. A at 3. On November 13, 2001, the Secretary filed with
Administrative Law Judge T. Todd Hodgdon a motion to consolidate the subject proceeding with
the civil penalty proceeding involving MMC (Docket No. VA 2001-37). The judge did not rule
on the motion to consolidate. He issued an Order to Show Cause on December 18, 2001,
directing Stanley to file within 21 days an answer or an explanation of his failure to do so. On
Januacy 17, 2002, the judge issued a Default Decision dismissing this civil penalty proceeding for
Stanley' s failure to answer the Petition for Assessment of Penalty or the show cause order. The
judge assessed the civil penalty of $600 proposed by the Secretary.
Stanley responded to the show cause order in a letter to the j udge dated January 16, 2002,
one day before the judge's default order issued. The Commission received the letter on January
144

22, 2002. In the letter, Stanley explained that he did .n ot timely.respond to the judge's show
cause order because he mistakenly believed that it was not necessary for him to do so if his case
was consolidated with the case involving MMC. Stanley also answered the Secretary's
allegations in the letter.
The judge's jurisdiction in this matter tenninated when his decision was issued on
January 17, 2002. 29 C.F.R. § 2700.69(b). Relief from ajudge's decision maybe sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700.70(a). We deem Stanley's response to the show cause order as constituting a
timely petition for discretionary review of the judge's default order, 1 which we grant. See, e.g.,
Upright Mining, Inc., 9 FMSHRC 206, 207 (Feb. 1987).
We have observed that default is a harsh remedy and that, if the defaulting party can make
a showing of adequate or good cause for a failure to respond to an order, the failure may be
excused and proceedings on the merits permitted. Mohave Concrete & Materials, Inc., 8
FMSHRC 1646, 1647 (Nov. 1986). On the basis of the present record, however, we are unable
to evaluate the merits of Stanley's position. In particular, it is unclear from his request why he
mistakenly believed that his case had been consolidated, or how such consolidation would relieve
him of his obligation to file an answer in this case. In the interest of justice, we vacate the
default order and remand this matter to the judge, who shall determine whether relief from
default is warranted. See Cent. Mt. Materials, 23 FMSHRC 907, 907-09 (Sept. 2001)
(remanding to judge where operator did not respond to Secretary's petition or judge's show cause
order because apparently confused about Commission procedures); Gen. Rd. Trucking Corp., 17

1

Stanley is proceeding pro se, and the Commission has generally held the pleadings of
pro se litigants to less stringent standards than pleadings drafted by attorneys. Marin v. Asarco,
Inc., 14 FMSHRC 1269, 1273 (Aug. 1992) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
145

FMSHRC 2165, 2165-66 (Dec. 1995) (same). If the judge detennines that relief is appropriate,
the case shaII proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29
C.F.R. Part 2700.

--7~ c:;...;--'=-1..:i-

Robert H. Beatty, Jr., Commissi

146

Karen M. Barefield, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 516
Arlington, VA 22203
Tony M. Stanley
P.O. Box 188
Burdine, KY 41517
Mine Management Consultants, Inc.
P.O. Box 33
Jenkins, KY 41537
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite I 000
Falls Church, VA 22041

147

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

February 27, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos. WEST 2000-63-M
2000-78-M
2000-195-M

ORIGINAL SIXTEEN
to ONE MINE, INC.

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners
ORDER
BY: Jordan and Beatty, Commissioners

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On November 26, 2001, the Commission
received from Original Sixteen to One Mine, Inc. ("Original") a petition for discretionary review
challenging the decision issued on October 19, 2001, by Administrative Law Judge Michael
Zielinski. On November 28, 2001, a majority of the Commission granted the petition for the
limited purpose of affording Original an opportunity to amend its petition to comply with the
requirements of section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(iii), and
Commission Procedural Rule 70(d), 29 C.F.R. § 2700.70(d). On December 17, 2001, Original
filed an amended petition for discretionary review. On January 2, 2002, the Commission
received an opposition from the Secretary of Labor. After complete consideration of the
operator's amended petition for review, on January 30, 2002, we declined to grant review of the
amended petition for discretionary review and vacated the direction for review issued on
November 28.
On February 8, 2002, Original filed with the Commission a petition for reconsideration,
requesting that the Commission reconsider its denial ofOriginal's amended petition on January
30. It submits that its request is based on "irrational, arbitrary, and capricious attitudes and
actions" of inspectors with the Department of Labor's Mine Safety and Health Administration
("MSHA"). Mot. at 2. Original explains that its relationship with MSHA has bec~me
increasingly antagonistic and that the citations it wishes to challenge were subjectively written by
inadequately trained MSHA inspectors. Id. In addition, Original set forth an identical version of
148

the amended petition for discretionary review that it had filed on December 17. Id. at 2-5. On
February 12, 2002, the Secretary filed an opposition to the petition for reconsideration, setting
forth the same grounds of opposition that she previously had submitted in response to Original's
amended petition for discretionary review.

In its petition for reconsideration, Original has not provided the Commission with facts or
legal arguments that it b~lieves we failed to consider or misapprehended in denying the amended
petition for review, but bas merely reiterated arguments that it made to the Commission in its
amended petition for discretionary review. With respect to petitions for reconsideration, our case
law requires that the petitioner must bring to the Commission's attention facts or legal arguments
he or she believes we overlooked. In other words, the petition for reconsideration must do more
than merely raise arguments we have already considered. See Island Creek Coal Co., 23
FMSHRC 138, 139 (Feb. 2001). In its petition for reconsideration, Original ha$ failed to provide
any new information. In its amended petition for discretionary review, Original alleges that the
citations issued by the inspectors were subjective (Amended PDR at 2, 3); that citations
demonstrated inconsistent enforcement action (id. at 5); and that citations reflected MSHA's
antagonistic attitude (id. at 5-6). We considered such arguments in declining to accept review of
Original's amended petition, and see no reason to reconsider that exercise of our discretion. See
30 U.S.C. § 823(d)(2)(A)(i) ("Review by the Commission shall not be a matter of right, but of
the sound discretion of the Commission"); Eagle Energy, Inc. v. Secy ofLabor, 240 F.3d 319,
324-25 (4th Cir. 2001) (providing that Mine Act contemplates that Commission sometimes will
not consider issues presented for its review).
For the foregoing reasons, having considered Original's request, the Secretary's response,
and the Commission's January 30 order, we deny Original's petition for reconsideration.•

Mary Lu

rdan, Commissioner

/
Robert H. Beatty, Jr., Commissioner

1

Chairman Verheggen voted in favor of accepting the operator's amended petition for
discretionary review, and therefore would grant the petition for reconsideration.

149

Distribution
Michael M. Miller, President
Original Sixteen to One Mine, Inc.
P.O. Box 1621
Alleghany, CA 95910
Tina Perruzzi, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

150

ADMINISTRATIVE LAW JUDGE DECISIONS

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

February 1, 2002
DISCRIMINATION PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
LEONARD M. BERNARDYN,
Complainant

Docket Nos. PENN 99-129-D
PENN 99-158-D

v.
READING ANTHRACITE COMPANY,
Respondent

Wadesville Pit
Mine ID 36-01977

PARTIAL DECISION ON REMAND
Appearances: Troy E. Leitzel, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Comp.lainant; Martin J .. Cerullo, Esq., Cerullo,
Datte & Wallbillich, Pottsville, Pennsylvania, for the Respondent.

Before:

Judge Weisberger

This case is before me based on a decision issued in this matter by the Commission, 23
FMSHRC 924 (2001), which vacated my decision of August l, 2000, 22 FMSHRC 951 , and
remanded the matter to me for further analysis of whether the discharged miner, Leonard
Bemardyn, had suffered any disparate treatment, as that concept was analyzed in Secretary of
Labor on behalf of Cooley v. Iowa Silica Co. 6 FMSHRC 516 (1984). 1 A summary of the facts in
this case are set forth in the Commission's decision is as follows:
Bemardyn had worked for Reading for nineteen years, including working as a
haulage truck driver at Reading's Pit 33, a coal mine in Wadesville, Pennsylvania,
for approximately four and a half to five years before his discharge. 22 FMSHRC
~t 299. Around 7:00 a.m. on November 10, 1998, Bemardyn began driving his
190-ton Titan haulage truck on his usual route. Id. Overall, the road has a grade of

1

Reading does not dispute my initial finding that the Secretary had established a prima facie case
as set forth in the case of the Secretary of Labor on behalf of Robinette v. United Castle Coal Co. 3
FMSHRC 803, 817-18 (April 1998).

151

approximately 8%, and parts of it are as steep as 10.3%, Id. When Bemardyn
began driving, the weather was foggy and misty, an.d slippery road conditions
caused Bernardyn to drive slower than usual. Id.
After prompting from Reading' s general manager Frank Derrick, who had seen the
Titan driving slowly, mine superintendent Stanley Wapinski stopped Bemardyn
and asked him why he told Bemardyn to drive faster. Id. Approximately 20
minutes later, Derrick again noticed a Titan truck driving slowly and asked
Wapinski whether it was the same truck. Id. When Wapinski answered yes and
identified Bemardyn as the driver, Derrick told him to remove Bemardyn from the
haulage run. T . Tr. at 85-86. Wapinski met Bemardyn at the pit and told him he
was holding things up, and directed him to meet Wapinski at the dump after his
current run. 22 FMSHRC at 299.
After the second conversation with Wapinski, Bemardyn used the C.B. radio in his
truck to call Thomas Dodds, the United Mine Workers of America ("UMWA")
safety committeeman. Id. Dodds was driving a truck on the same shift as
Bemardyn. Id. Bemardyn told Dodds he was being asked to drive at a higher
speed than he believed was safe given the poor road conditions. Id. During his 810 minute complaint to Dodds, Bemardyn repeatedly cursed and, referring to
Wapinski, said "I'll get the little f----r." Id. D~rrick overheard Bemardyn's
complaints and profanity on the C.B. radio, but he testified that "it never crossed
my mind to pick up the CB and tell him to stop." T. Tr. 116. Derrick fired
Bemardyn after he had dumped the load in his truck, assertedly for profanity and
threatening a supervisor over the C.B. radio. 22 FMSHRC at 299-300.
Within 30 minutes after Bemardyn' s tennination, road conditions worsened, and a
layer of ice had formed on the road. Id. At 300 n.2. After a foreman's truck slid
down the haulage road, the road was shut down due to the slippery conditions. Id.
23 FMSHRC, supra, at 924-295 (footnotes omitted.)

In essence, in my prior decision, I found that Reading had established an affirmative
defense, which had not been refuted by the Secretary who had asserted that Bemardyn had been
the victim of disparate treatment. On remand , the Commission directed me, to apply Commission
precedent as established in Cooley, supr~ at 521 and Hicks v. Cobra Mining Inc., 13 FMSHRC
523 (532-33) (1991), wherein, in the context of analyzing whether a discharged miner was
disparately treated in the context of using offensive language " ... the Commission has looked to
whether the operator had prior difficulties with the complainant's profanity, whether the operator
had a policy prohibiting swearing, and how the operator treated other miners who had cursed". 23
FMSHRC at 929-930. Specifically, the Commission, Id., at 930 directed me to reconsider my
determination that Bemardyn did not suffer disparate treatment and discrimination under Section
105(c ), according to the following principles:

152

(1)

Complainant's Prior Use of Profanity.

In Bernardyn I., 22 FMSHRC 298 (March 2000), the Commission, at 303, found that "the
record does not contain any evidence of prior difficulties Reading may have had with Bemardyn
swearing". Hence, this finding becomes the law of the case regarding an analysis ofBemardyn' s
prior use of profanity as one of the Cooley, supra, factors, and hence, becomes the law of the case
in this remanded decision.

(2)

Disciplinary PoJicv on Cursine

In its decision, the Commission concluded that substantial evidence supported my initial
finding that Reading's 1987 Disciplinary Policy was in effect at the time Bemardyn was
discharged, and that there was no provision in Reading' s 1987 Code of Conduct"establishing
either cursing or threatening language as an offense warranting immediate termination". 23
FMSHRC, supra, at 931. The Commission, after analyzing Reading's 1987 policy, found that
Reading"... had no established practice for disciplining workers for cursing in the absence of
accompanying insubordinate acts, or of treating cursing as conduct warranting immediate
discharge." Id. The Commission, then went on to conclude that "Reading violated its policy in
terminating Bemardyn." Id. At 932. These :findings become the law of the case in this remanded
proceeding.

(3)

Treatment of Similarly situated miners.
a.

Use of C.B. Radio.

Critical to my initial decision and decision on remand, was a finding that Bemardyn's use
of profanity was distinguished from use of profanity by other miners, first of all, because it was
broadcast over a C.B. radio. However, the Commission, Id. at 933, concluded that, to the
contrary,"... substantial evidence does not support the judge's finding that Bemardyn's broadcast
of his cursing over the C.B. Radio materially distinguished his cursing episode from previous
cursing incidents." This conclusion becomes the law of the case in this remand decision.

b.

Duration of Cursine.

The second critical element which provided the basis for my decision that Bemardyn's use
of profanity was distinguished from previous incidents, consisted of my finding that Bemardyn
had cursed 8 to 10 minutes over the CB. In contrast, the Commission referred to Commission
precedent, as establishing "that it is not the duration of various single incidents that is most
relevant to disparate treatment analysis, but whether there was a prior problem with misconduct
involving the complainant." In addition, the Commission found that the record established "that
Reading could have terminated Bemardyn's outburst at any time." Id. Further, critical to my
decision that Bemardyn was not subject to disparate treatment was my finding that whereas other
individuals made a profane remark only once, Bemardyn used profanity nonstop for

153

approximately 8 to 10 minutes. In contrast,.the Commission found that substantial evidence does
not support this finding. Id. The Commission found that another miner who had received at least
two warnings for three separate incidents of verbal abuse was not terminated, and that, in contrast,
Bernardyn had no such history of cursing. These findings now become the law of the case.

Bernardyn 's Threat.
The third finding that was critical to my decision that Bernardyn' s conduct was more
egregious and not in the same category of other miners who had used profanity, was a finding that
Bernardyn had threatened his supervisor. In contrast, the Commission, Id., concluded that
"substantial evidence does not support th~ judge's finding that Bernardyn threatened his
supervisor." In conclusion, the Commission, Id., at 935, held as follows:

In light of our determination that Bernardyn's use of the C.B. radio and the
duration of the cursing incident do not meaningfullY. distinguish Bernardyn from
other Reading employees who were not terminated for cursing, we conclude that
substantial evidence does not support the judge's finding that Bemardyn was not
similarly situated to these employees. Consequently, as to the third Cooley, we
conclude that substantial evidence fails to support the judge's finding that Reading
did not treat Bemardyn more harshly than simiiarly situated employees.
These conclusions of the Commission become the law of th~ case.

Conclusion

In light of the Commission's findings and conclusions regarding Bernardyn's prior use of
profanity, disciplinary policy on cursing, and treatment of similarly situated miners, I am
constrained to conclude that under the law of the case, as set forth by the Commission, the
Secretary has established that Bemardyn was subject to disparate treatment, and that accordingly
Reading's affirmative defense is defeated. Thus, I am constrained to conclude that the Secretary
has established that Bemardyn was discharged in violation of Section 105(c) of the Act.
Order

It is Ordered that:
{1) The parties shall, within 10 days of this decision, confer to discuss settlement regarding
all elements of the specific relief reques~ed by the Secretary on behalf of the Complainant,
including the amount claimed as back pay, if any, along with interest to be calculated in
accordance with the formula in the Secretary on behalf of Bailey v. Arkansas Carbona, 5
FMSHRC 2042 (1984).

154

(2) Within 10 days of the date of this decision, the parties shall confer and attempt to reach
a settlement, either regarding the amount of the civil penalty sought by the Secretary from the
Respondent, or agree to a set of stipulations regarding the various factors set forth in Section
11 O{i) of the Act.

(3) If the parties reach a settlement regarding the matters set forth in either paragraphs (1)
or (2) of this Order, then such a settlement shall be filed no later than 10 days from the date of this
Decision.
(4) Should the parties not reach any settlement with regard to any of the matters set forth
in paragraphs (1) and (2) of this Order, then the Secretary shall convene a conference call with
counsel for the Respondent and the undersigned, to take place at either 10:30 a.m. or 2:30 p.m.
during the week of February 11, 2002, in order to set a date for an evidentiary hearing to resolve
any outstanding issues regarding the scope of relief to be awarded Complainant, or the factors set
forth in Section 11 O(i) of the Act.
(5) This Decision is not final until a further order is issued with respect to Complainant's
relief and the amount of Complainant's entitlement to back pay, if any, and the amount of civil
penalty to be assessed against Respondent.

~~be~
Administrative Law Judge

Distribution: (Certified Mail)
Troy E. Leitzel, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East, Curtis
Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P.O. Box 450, Pottsville, PA, 17091

lsc

155

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
· 5203 Leesburg Pike
Falls Church, Virginia 22041

February 5, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

CIVIL PENALTY PROCEEDING

ADMINISTRATION (MSHA),
Petitioner
v.

Docket No. VA 2001-10
A. C. No. 44-01696-03501 4FT
Mine No. 2

MINING PROPERTY SPECIALISTS, INC.,
Respondent

DECISION
Appearances: Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Harry W. Meador, III, President, Mining & Property Specialists, Inc., Big Stone
Gap, Virginia, pro se, for Respdndent.
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
Mining Property Specialists, Inc. (MAPS), under section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U .S.C. § 815. The petition alleges a violation of the Secretary's
mandatory health and safety standards and seeks a penalty of $500.00. A hearing was held in Big
Stone Gap, Virginia. 1 For the reasons set forth below, I modify the citation and assess a penalty
of$100.00.

Back&round
MAPS is an engineering and environmental services firm located in Big Stone Gap,
Virginia. Among other things, it provides surveying services for various underground coal mines
in the area.

1

Subsequent to the hearing, the Respondent requested that the September 7, 200 I,
deposition of MSHA Inspector John Godsey be admitted into evidence. There being no
objection by the Secretary, the deposition is admitted into evidence as Respondent's Exhibit D.
156

On August 25, 2000, MAPS employees William Johnson, transit man, and Chad Huff,
rod man, went to the Fork Ridge No. 2 mine in Wise County, Virginia, to install a survey station
indicating the direction of an entry. On arriving at the mine, the surveyors checked in with mine
management and then proceeded to the No. 1 entry to install Survey Station 208. At the time they
entered the mine, and while they performed their duties, the mine was not producing coal
because there was a problem with the belt line. It took the surveyors 15 to 20 minutes to
complete their work.
As the surveyors were leaving, sometime between 8:00 a.m. and 8:30 a.m., they
encountered MSHA Inspectors Gary Roberts and John Godsey, who were arriving to inspect the
mine. The inspectors went into the mine to conduct their inspection accompanied by Hagy
"Bear" Barnett, the Mine Superintendent. For most of the time they were underground, the mine
was down. Mining was resumed sometime between 10:00 a.m . and 11 :00 a.m.
At about 12:00 noon, Inspector Godsey went to inspect the face in the No. 1 entry. He
discerned that the last row ofroofbolts in the entry did not appear to be within five feet of the
face, as required by the mine's roof control plan. He also observed that a warning reflector, or
streamer, had been placed on the right hand side of the last row of bolts. He called Roberts and
Barnett, who were still in the No. 2 entry, to come and verify what he had seen.
Although it was not as obvious to him, Roberts agreed that the last row of bolts appeared
to be farther than five feet from the face. When Godsey measured the distance, he found that the
last row was six feet, nine inches, from the face on the left side and six feet, one inch, on the
right side. Roberts and Barnett both saw the warning reflector on the right side.
All three observed, after measurement, that Survey Station 208 was 20 inches inby the
last row of roof bolts. From this, Godsey and Roberts concluded that the surveyors had gone
under unsupported roof. Consequently, they issued Citation No. 7305588 to MAPS, under

157

section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l),2 alleging a.violation of section 75.202(b) of
the Secretary's regulations, 30 C.F.R. § 75.202(b), because:
Based on evidence present in the face of the number I entry 001-0
active section at survey station number 208, survey stations have
been installed inby the last row of permanent roof supports.
William Johnson, Supervisor[,] and Chad Huff, surveyor[,) were
present at the mine site on August 25, 2000. A reflectorized
warning device was installed on the last row of permanent roof
supports.
(Govt. Ex. 1.) Section 75.202(b) provides that: "No person shall work or travel under
unsupported roof unless in accordance with this subpart."

Findin2s of Fact and Conclusions of Law
MAPS asserts that at the time the surveyors installed the survey station they were not
under unsupported roof. The Secretary, of course, argues that they were. Because of the time
lapse between the installation of the survey station and the inspection of the area, both sides rely
on circumstantial evidence to sustain their positions. The preponderance of the evidence,
however, supports the Secretary.
The surveyors testified that when they entered the mine they were not advised of any
hazardous conditions in the mine. They maintained that when they arrived at the face of the No.
l entry, they did not observe any warning reflector or streamer. Not seeing any warning, and not
having been informed of any hazardous conditions, and not observing any obviously hazardous
conditions, they assumed the area was safe and performed their work. They both admitted to
having been inby the last row ofroofbolts at some time during the installation of the survey
station.

2

Section 104(d) 1) provides, in pertinent part:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has been
a violation of any mandatory health or safety standard, and if he
also finds that, while the conditions created by such violation do
not cause imminent danger, such violation is of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of
such operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to the
operator under this Act.
158

Based on this testimony, it is the Respondent's positiop that at the time the surveyors
were working, the last row of roof bolts was within five feet of the face and, therefore, the
surveyors were not under unsupported roof. This theory is premised on the fact that the roof
control plan requires a warning device at the last row ofroofbolts if the area inby them is
hazardous. 3 Hence, if there was not a warning device the area inbywas not hazardous.
The company explains the fact that the area inby the last row measured more than five
feet at 12:00 by surmising that some time between when the surveyors were present and the
inspection, one foot, one inch, to one foot, nine inches, of coal was mined from the face.
Unfortunately, there is no evidence to support this argument.
It is undisputed that no mining was performed, after the surveyors finished, until
sometime between 10:00 a.m. and 11 :00 a.m. There is no evidence that anyone observed mining
in the No. 1 entry between that time and the inspection. Barnett testified that to the "best of [his]
knowledge" no mining was done in the No. 1 entry before the inspection. (Tr. 73.)

The Respondent hypothesizes that a small amount of coal may have been mined to
facilitate the mining of the bleeder to the left of the No. 1 entry. However, even the Respondent
admits that such a cut, if it were made, would be nine and one quarter feet deep, not six feet, nine
inches. (Resp. Br. at 13-14.) Thus, the depth of the entry does not support thjs theory.
Furthermore, there does not appear to be any reason, from a mining standpoint, to mine such a
small amount of coal.
While it would have been nice to have evidence from someone who was actually present
in the mine during the time in question, e.g. the section foreman or the continuous miner
operator, the preponderance of the evidence in this case supports a finding that there was no
change in the No. 1 entry between the installation of the survey station and the inspection.
Since the area inby the last row ofroofbolts was unsupported roof both at the time the
surveyors were present and the time of the inspection, and the surveyors admit that they were
inby the last row of roof bolts, it follows that they worked under unsupported roof. The Act
provides that an operator is liable for the violative acts of its employees. Bulk Transportation
Services, Inc., 13 FMSHRC 1354, 1359-60 (September 1991). Accordingly, I conclude that
MAPS violated section 75.202(b) as alleged.

Significant and Substantial

3

Barnette testified that although the roof control plan only requires the placement of a
warning device at the last row ofroofbolts if the area inby is more than five feet from the face,
and thus unsupported, or to indicate some other hazardous condition, the company customarily
places such a device at the last row whether the condition inby is hazardous or not. (Tr. 85-86.)
159

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 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.If Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
fu Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), the Commission set out four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 10304 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021(December1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of"continued normal mining
operations." US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is "significant and substantial" must be based on the particular
facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (December 1987).

In order to prove that a violation is S&S, the Secretary must establish: ( l) the underlying
violation of a safety standard; (2) a distinct safety hazard, a measure of danger to safety,
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious
nature. Mathies, 6 FMSHRC at 3-4.
MAPS asserts that the violation was not "significant and substantial" because the area of
unsupported roof varied from 13 inches on one side to 21 inches on the other, the mine was noted
as having "good top" and the surveyors were only 20 inches inby the last row of roof bolts.
(Resp. Br. at 17.) Therefore, the Respondent argues, the violation does not meet the second and
third Mathies criteria. I find to the contrary.

In Consolidation Coal Co., 6 FMSHRC 34(January1984), the Respondent made the
same type of argument. In that case, the company contended that spacing roof bolts farther apart
than permitted in the roof control plan contributed neither to a hazard nor a reasonable likelihood
that such a hazard would result in injury. In rejecting this contention, the Commission held that:
"Mine roofs are inherently dangerous and even good roof can fall without warning." Id. at 37. It
went on to say that "despite the generally good conditions and the absence of reportable injuries
in the previous six months, these over-wide bolts created 'a measure of danger to safety or
health."' Id. at 38. Similarly, I find that working under unsupported roof cre~ted a measure of
danger, i.e. being struck by a roof fall, to safety or health.
Turning to the third element, there is little evidence to support the Secretary's position.
fuspector Roberts testified on this issue as follows:

160

It's dangerous to be under unsupported ,roof, especially inby
the last row of permanent supports, at any time ... [because] the
roof is not supported and there is a good possibility that you could
have a roof that's not supported that could fall at any given time.
It's highly likely that unsupported roof could fall. Perhaps,
I guess, looking at the history of roof falls and being involved with
roof - !"gave a safety talk the other day of the fatalities that we've
had this year.
I think almost half of the fatalities of people that have been
killed with roof falls or falling pieces ofrock have incurred [sic]
inby the last row of permanent supports, so it's very serious, what
we consider no man's land. It's no place to be.
(Tr. 30-31.) No other evidence was offered by the Secretary on the issue.
On the other hand, the company did not offer any evidence to rebut the inspector's
assertions. The inspector's judgment is an important element in an S&S determination. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278 (December 1998). Therefore, considering the
inspector' s testimony along with the understanding that mine roofs are inherently dangerous, I
find that it was reasonably likely that the unsupported roof would fall and result in an injury.
I also find that a disabling injury or death would be the likely result a roof fall.
Accordingly, I conclude that the violation was "significant and substantial."
Unwarrantable Failure

The Commission has held that unwarrantable failure is aggravated conduct constituting
more than ordinary negligence by a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2010 (December 1987). "Unwarrantable failure is characterized by such
conduct as 'reckless disregard,' 'intentional misconduct,' 'indifference' or a 'serious lack of
reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189,
193-94 (February 1991)." Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994); see also
Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's
unwarrantable failure test).
The Secretary's argument that this violation involved an unwarrantable failure is based on
the theory that Johnson was "acting in a supervisory role when he went to" the mine. (Sec. Br. at
10.) The evidence, however, does not support this theory.

161

The Commission has long held that the negligence of a ."rank-and-file" miner cannot be
imputed to the operator, in this case the contractor, for penalty assessment purposes. Fort Scot
Fertilizer-Cul/or, Inc., 17 FMSHRC 1112, 1116 (July 1995); Western Fuels-Utah,lnc., 10
FMSHRC 256, 260-61 (March 1988); Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August
1982) (SOCCO). To determine whether such a miner was an agent ofthe operator, whose
negligence can be imputed to the operator, "the Commission examines whether the miner was
exercising managerial or supervisory responsibilities at the time the negligent conduct occurred.
U.S. Coal, Inc., 17 FMSHRC 1684, 1688 (October 1995)." Whayne Supply Co., 19 FMSHRC
447, 451 (March 1997).
It is the Secretary's position that the following factors made Johnson a supervisor: (1) He
was the transit man; (2) The inspectors and, perhaps, the mine superintendent thought he was a
supervisor;4 (3) He testified that he was responsible for a project while at the mine site: (3) When
the mine superintendent had a problem he went to the transit man; (4) He told the mine
superintendent who needed hazard training; (5) He marked the mine maps, although the maps
had to be certified by the company president; and (6) He directed the activities of the rod man.

In Whayne Supply, the Commission rejected a similar argument by the Secretary as
"lacking legal and evidentiary support' ~ because "[a]lthough the record evidence indicates that
[the miner] was a highly experienced repairperson who needed little supervision and helped less
experienced employees, this does not convert him into a supervisor, much less a manager." Id.
The Commission further found that there was no evidence that he "exercised any of the
traditional indicia of supervisory responsibility such as the power to hire, discipline, transfer, or
evaluate employees. Nor was there any evidence that [the miner] 'controlled' the mine or a
portion thereof; rather he merely carried out routine duties involving the repair of Caterpillar
machinery." Id.

Likewise, in this case there is no evidence that Johnson exercised any of the traditional
indicia of supervisory responsibility. Indeed, the evidence is that he did not have such authority,
did not think he had such authority and did not exercise such authority. The two man crew
performed routine surveying work which was "pretty much the same every time when you go in."
(Tr. 96.) Directing the activities of the rod man, i.e. telling him where to stand with the rod, and
marking the mine map are part of the normal, routine surveying duties. Such actions do not
make him a supervisor anymore than do the actions of the continuous miner operator directing
the activities of the miner helper make him a supervisor.
Further, Johnson did not determine who needed hazard training, direct him to get it or tell
the mine superintendent who needed hazard training; rather if a new employee was with him he
"would take them to get their hazard training if they didn't know to get it." (Tr. 97, emphasis
added.) In addition, Barnett stated: "I know when it's a touchy situation you've got to know for

4

Barnett said: "As far as just ever thinking about it, I'd really never give it a thought."

(Tr. 78.)
162

sure, you know, Bill [Huff] is usually the one that comes to th.e problem." (Tr. 79.) Bill Huff
was the person in MAPS office who sent the surveyors on their missions. Thus, mine personnel
did not go to the transit man for consequential problems.
Consequently, I conclude that Johnson was not a supervisor whose conduct, if it was
aggravated, can be imputed to MAPS. However, that does not end the inquiry because the
Commission has further held that: "[W]here a rank-and-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 to prevent the rank-and-file miner's violative conduct."
SOCCO at 1464. While this standard is normally applied in determining the operator's
negligence for penalty purposes, the Commission has also confirmed that it applies in
determining whether an operator can be held responsible for an "unwarrantable failure." Whayne ·
Supply at 452-453.
Nonetheless, the Secretary did not present any evidence concerning MAPS supervision,
training and disciplining of its employees. Nor is there sufficient evidence in the record to make
such a determination. Since the Secretary has failed to show that the Respondent's supervision,
training and discipline of its employees was deficient, it must be concluded that the company had
taken reasonable steps to prevent the violative conduct.
Finally, it is uncontroverted that no MAPS supervisor was present when the violation was
committed. Cf Midwest Material Co., 19 FMSHRC 30, 35 (January 1997). Accordingly,
inasmuch as neither Johnson's nor Chad Huffs negligence can be imputed to MAPS and there is
no evidence that the company engaged in aggravated conduct, I conclude that the violation was
not the result of an "unwarrantable failure." The citation will be modified appropriately.

Civil Penalty Assessment

The Secretary has proposed a penalty of $500.00 for this violation. 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 l lO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).
With regard to the penalty criteria, the parties have stipulated, and I so find, that the
penalty will not adversely affect MAPS' ability to continue in business. (Tr. 9.) I also find that
MAPS is a very small company and that, since its Assessed Violation History Report shows that
it had no previous violations within the two years preceding this violation, it has an excellent
history of previous violations. (Govt. Exs. 5 and 6.) I further find that the Respondent

163

demonstrated good faith in attempting to achieve rapid compliance after notification of the
·
violation.
Turning to the question of gravity, I find this to be a serious violation. Working or
traveling under unsupported roof is on~ of the more dangerous activities that can occur in a coal
mine. On the.other hand, as discussed in the section on "unwarrantable failure" there is no
negligence that can be imputed to the Respondent.
·
Therefore, talcing all of these criteria into consideration, I assess a penalty of$100.00.

Order
Citation No. 7305588 is MODIFIED by reducing the level of negligence from "high" to
"none," by deleting the "unwarrantable failure" designation and by making it a 104(a) citation, 30
U.S.C. § 814(a), instead of a 104(d)(l) citation. The citation is AFFlRMED as modified.
Mining Property Specialists, Inc., is ORDERED TO PAY a civil penalty of $100.00 within 30
days of the date of this decision.

'1&:~

Administrative Law Judge

Distribution: (Certifie~ Mail)
Karen Barefield, Esq., U.S. Department of Labor, Office of the Solicitor, 4015 Wilson
Boulevard, Room 516, Arlington, VA 22203
Harry W. Meador, ill, President, Mining & Property Specialists, Inc., 1912 Wildcat Road, Big
Stone Gap, VA 24219
nt

164

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite l 000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

February 13, 2002

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 2001-102
A.C. No. 29-01825-03553

SAN JUAN COAL COMPANY,
La Plata Mine

Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Schroeder

This matter is before me on a Petition by the Secretary for the assessment of a Civil
Penalty for the alleged violation of mine safety regulations. The Petition alleged five violations
based on one citation and four orders issued by a mine safety inspector. The Secretary sought,
using the special assessment procedure, a total Civil Penalty of$36,000.00. Pursuant to my
prehearing order, the parties have discussed and agreed upon a settlement of this controversy
which they have submitted for my approval. Under the proposed settlement, the parties have
agreed that the facts which would be demonstrated at a hearing show no aggravated conducted
was involved in the four Orders and that mitigating conduct was present in connection with the
citation. These facts would support the conclusion that the 104(d) Orders should be modified to
104(a) citation$ and that the 104(a) citation should warrant a lesser penalty. The Secretary has
agreed to accept a Civil Penalty reduced to $23,500.00 and the Respondent has agreed to pay the
reduced amount. I have reviewed the proposed settlement and find it is consistent with the Mine
Safety Act and is in the public interest. Therefore, it is

ORDERED that the Motion to Approve Settlement is granted. The Respondent is
directed to pay a Civil Penalty of $23,500.00 within 30 days of the date of this Order. The
parties are to bear their own costs. Upon receipt of the Civil Penalty directed in this Order, the
Petition is DISMISSED.

h.w"'e-_,. .r, ,_,.,./Z'"/

7
.....

Administrative Law Judge
703-756-5232
165

Distribution:
Susan Meyercord Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South
Griffin St., Suite 501, Dallas, TX 75202
Charles W. Newcom, Esq., Shennan & Howard, LLC, 633 Seventeenth St., Suite 3000, Denver,

co 80202

166

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

February 14, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 2001-284-M
A. C. No. 23-02207-05501

v.
NELSON BROTHERS QUARRIES,
Respondent

Jasper Quarry

DECISION
Appearances: Daniel J. Haupt, Conference & Litigation Representative, U.S. Department
of Labor, Mine Safety & Health Administration, Dallas, Texas, on behalf
of Petitioner;
Paul M. Nelson, President, Nelson Brothers Quarries, Jasper, Missouri,
on behalf of Respondent.
Before

Judge Melick

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
(1994) et seq., the "Act," charging Nelson Brothers Quarries (Nelson Brothers) with seven
violations of mandatory standards and proposing civil penalties of $472.00, for those violations.
The general issue before me is whether Nelson Brothers violated the cited standards as alleged
and, if so, what is the appropriate civil penalty to be assessed considering the criteria under
Section 11 O(i) of the Act. Both parties filed post hearing briefs. It is noted however that the
brief of the Respondent, contains statements that are not supported by the trial record. To the
extent that such statements are without such record support they cannot, of course, be given
evidentiary weight.
Citation No. 6205045 alleges a violation of the standard at 30 C.F.R. § 56.14107(a) and
charges as follows:
The drive coupling for the electric water pump located in the pit was not
guarded to prevent employee contact. The coupling and keyed shaft were
approximately 6-inches long. This condition created an entanglement hazard to
employees.

167

The cited standard, 30 C.F.R. § 56.14107(a), provides t~at "moving machine parts shall
be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail and takeup pulleys, flywheels, couplings, shafts, fan blades and similar moving parts that can cause
injury." Wesley Hackworth, an inspector for the Department of Labor's Mine Safety and Health
Administration (MSHA) testified that on March 13, 2001, he was performing an inspection of the
Jasper Quarry, accompanied by Paul Nelson, Nelson Brothers' President. According to
Hackworth, the drive coupling for the electric water pump, located in the pit and used to drain
water out of the west pit, was not guarded. The coupling was not smooth and 1/8 to 114 inch
projections protruded from it. In addition a small keyed area on the shaft was exposed which
also created an entanglement hazard .
Hackworth credibly testified that a person becoming entangled in the unguarded coupling
could suffer permanently disabling injuries. He opined however that injuries were unlikely since
no employees were required to be in the cited area. Within the above framework of evidence I
conclude that the violation is proven as charged but that such violation was of low gravity. The
Secretary's finding of low negligence, based on Mr. Nelson's good faith but incorrect belief that
the coupling was smooth, is accepted for purposes of assessing a civil penalty herein. 1
In reaching these conclusions I have not disregarded the testimony of Foreman Ralph
Carter, that he was unable to see, in the Respondent's photo~aphs in evidence (Exh. R-1 and R2), any of the projections in the coupling described by Inspector Hackworth. Indeed, the cited
photos do not appear to depict any projections. However, the photos also do not appear to show
all 360 degrees of the shaft and, in particular, the area described by Hackworth in Petitioner's
Exhibit No., 1 p. 2. Under the circumstan<;es and in light of Inspector Hackworth's credible
affinnative testimony I can give Carter's inability to see the violative conditions in the
Respondent's photographs but little weight.
I have also not disregarded Mr. Nelson's argument, presented at hearing, that the cited
standard is in conflict with the Occupational Safety and Health Administration's (OSHA)
standard at 29 C.F.R. § 1910.219(h)(l)(i)(2) and that it therefore is incompatible with the
"Interagency Agreement" between MSHA and OSHA, dated March 29, 1979. In particular, Mr.
Nelson cites Section D of that agreement which provides as follows:
MSHA and OSHA will endeavor to develop compatible safety and health
standards, regulations and policies with respect to the mutual goals of the two
organizations including joint rulemaking, where appropriate. This interagency
coordination may also include cooperative training, shared use of facilities, and
technical assistance.

The Secretary appears to have modified the inspector's initial findings of
"moderate" negligence to "low" negligence.
168

The above statement does not, however, provide any basis to invalidate the standard cited
herein. I also note that, while the OSHA standard cited by Mr. Nelson is more specific in
describing the hazard to be protected against, the standards are not at all inconsistent. Under the
circumstances the Respondent's arguments in this regard are rejected.
Citation No. 6205046, as amended, charges a violation of the standard at 30 C.F.R.
§ 56.12004, and alleges as follows:
The 480-volt power cable supplying power to the electric water pump was
not properly fitted at a female termination plug. The inner conductors were
exposed out from the outer jacket and were clamped into the plug. There was no
apparent damage to the insulation on the inner conductors. This condition created
a hazard of the inner conductors being damaged and an employee being shocked.
The cited standard, 30 C.F.R. § 56.12004, provides in relevant part that "electrical
conductors exposed to mechanical damage shall be protected."
Inspector Hackworth testified that the inner conductors were indeed exposed as identified
in the photograph in evidence (Exh. P-2). Although no bare wires were exposed, the insulation
on the wires was soft and could be damaged from pump vibrations or from repeated unplugging.
Hackworth opined that the condition would not likely cause injury since there was no apparent
damage or exposed wires. He noted however, that if the wires should become exposed there was
a hazard of fatal injuries by electrocution. The testimony of Foreman Carter, that the electrical
wiring was deenergized before being handled and that it was the unwritten company policy that
employees do not touch the plug until the wires are deenergized, reinforces the Secretary's
conclusion that the cited condition was of low gravity. While the operator's evidence does tend
to reduce the exposure potential, and I agree that gravity was low, I do not find sufficient credible
evidence to negate the violation itself.
Even assuming, arguendo, that the condition created no hazard, as Respondent argues in
its brief, it is the established law that the Mine Act imposes no general requirement that a
violation ofMSHA regulations be found to create a safety hazard in order for a valid citation to
issue. See Allied Products Inc., 666 F.2d 890, 892-93 (5th Cir. 1982).
Inspector Hackworth found the operator chargeable with low negligence since the
condition was not highly visible. I accept those findings, which are supported by the record, for
purposes of assessing a civil penalty.
..

Citation No. 6205047, as amended, alleges a violation of the standard at 30 C.F.R. §
56.12040 and charges as follows:

169

There were three filler plates missing from the 1.20 volt breaker box in the
crusher control booth. The breakers in the box were in use except for one. This
condition created.a shock hazard to employees when turning the breakers on or

off.
The cited standard, 30 C.F.R. § 56.12040, provides that ..operating controls shall be
installed so that they can be operated without danger of contact with energized conductors."
Inspector Hackworth testified that he observed that three filler plates were missing from the 120volt breaker box in the crusher control booth. The existence of this condition is not disputed by
the operator and accordingly the violation is proven as charged. Hackworth described the hazard
created by the cited condition as exposure of employees to electrical shock when turning the
breakers on and off. According to Hackworth there was a hazard of shock or electrocution if any
employee's fingers should slip or an employee could fall with his hand contacting the energized
conductors. Hackworth concluded, however, that injuries were unlikely explaining that the door
to the breaker box was kept closed and that the exposed openings were small.
The testimony of Foreman Carter confirms the low gravity of the violation. Carter
testified that the circuit breaker was located on a wall behin9 the crusher control operator and
that it was company policy to keep the door shut on the breaker box. Carter also testified that
when occasional work is performed on the electrical system it is company policy to shut down
the main power source.
Respondent argues in its post hearing brief that the cited circuit breaker box does not
have "operating controls" within the meaning of the cited standard. Inspector Hackworth
credibly testified however that the tags or hand~es (little red handles) on the breakers constituted
"operating controls." There is no contrary evidence and Respondent's argument is accordingly
without record support. To the extent Respondent also argues based other alleged evidence not
in the record, those arguments must also be rejected.
The Secretary found lo~ operator negligence apparently based on the fact this was the
mine's first inspection. This finding is accepted for purposes of assessing a civil penalty.
Citation No. 6205048 alleges a "significant and substantial" violation of the standard at
30 C.F.R. § 56.14112(b) and charges as follows:
The top and back sections of the guards for the self cleaning tail pulley on
the 7-8 concrete conveyor were off missing. The guards had been removed for
cleaning and were not put back on. The condition was highly visible and should
have been noticed and corrected. This condition created an entanglement hazard
to employees.
The cited standard, 30 C.F .R. § 56. l 4112(b), provides as relevant hereto that "guards shall
be securely in place while machinery is being operated ..." Inspector Hackworth testified, and it

170

is undisputed, that the guards had been removed from the tail pulley for cleaning and had not been
replaced at the time of his inspection. Since it is undisputed that the cited guards were not in
place while the conveyor was in operation the violation must be affinned.
According to Hackworth there was an entanglement hazard presented by the violation
since the pulley had wings and splines on it. He concluded that it was reasonably likely for an
employee to become entangled since the area was readily accessible to employees. Foreman
Carter testified however that the cited area was effectively inaccessible. To gain access one would
have to "climb over things" to get to it. According to Carter it was therefore unlikely for someone
to walk into or fall into this area. Carter also testified that he had never seen anyone in the plant
area and employees are not allowed in that area while the plant is in operation. Moreover,
according to Carter, if a customer should stray into the plant area the operator shuts the plant
down. He also noted that maintenance is not perfonned while the plant is in operation. When the
plant is started the operator waits for the startup signal and no one is then in the plant.
In light of Mr. Carter's first hand knowledge as to the plant operations I give his testimony
significant weight and conclude that indeed, the cited area was generally not easily accessible and
that therefore injuries from the unguarded tail pulley were not reasonably likely. Under the
circumstances I do not find that the violation was "significant and substantial." In her posthearing briefthe Secretary appears to now concede the issue also based upon Foreman Carter's
greater knowledge of the operating conditions.

A violation is properly designated as "significant and substantial" if, based on the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature. Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,34 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety standard, (2) a discrete safety
hazard -- that is, a measure of danger to safety-- contributed to by the violation, (3)
a reasonable likelihood that the hazard contributed to will result in an injury, and
(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.

See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), affg 9
FMSHRC. 2015, 2021 (December 1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which there is an injury (U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such injury must be
evaluated in terms of continued normal mining operations without any assumptions as to

171

abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574. (July 1984); See also Halfway,
Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17
(June 1991).

I do finq however that the violation was the result of significant operator negligence. It is
not disputed that the guards had been removed for the purposes of cleaning the area and had not
been replaced for a week. Respondent Nelson, also admitted that he had been in the area during
the startup and under such circumstances should have seen the absence of the guards - - an
obvious condition according to fuspector Hackworth. The condition was abated by replacing the
guards.
Citation No. 6205050 alleges a violation of the standard at 30 C.F.R. § 56.20003(a) and
charges as follows:
The motor control trailer was not kept clean and orderly. The floor of the
trailer was cluttered with tools, extension cords, nuts, bolts and belt splicing
materials. The materials were in the middle and west end of the trailer. This
condtion [sic] created a trip or fall hazard to employees.
The cited standard, 30 C.F.R. § 56.20003(a), provides that at all mining operatiQns
"workplaces, passageways, store rooms and service rooms shall be kept clean and orderly."
fuspector Hackworth testified that in the motor control trailer he found a number of items
laying on the floor including, as depicted in bis diagram, nuts, bolts, hand tools, extension cords,
belt fasteners and plates used for splicing belts. According to Hackworth the items were readily
visible and presented a slipping, tripping and falling hazard. The items were located in the
middle of the floor and affected access to the trailer. He concluded that injuries were reasonably
likely to an employee who might slip or fall in attempting to retrieve tools or parts and that the
injuries would likely result in lost work days and restricted duty, from strains, sprains and twisted
ankles.
According to Foreman Carter, the trailer is entered twice daily, usually by way of the side
door, to turn the power on and off fu addition, once or twice a week one would tum left to reach
for parts or tools. Carter admitted that the floor was cluttered but maintained that there was
walking space in between the clutter and that it took him only 20 minutes to clean it up. Carter
also observed that the condition had existed for several weeks and that he was sure that everyone
knew that the material was on th~ floor.
The Secretary in her post-hearing brief now concedes that Carter had greater knowledge
of the conditions and requests a corresponding modification of the citation and penalty. While I
do find that a violation in fact existed as charged, under the circumstances I find that the
violation was neither "significant and substantial'' nor of significant gravity.

172

Hackworth concluded that the operator was moderately negligent because the condition
was readily visible. This finding is not disputed and is accepted for purposes of assessing a
penalty. Carter also acknowledged that the cluttered condition had existed for a couple of weeks
and this acknowledgment further supports these negligence findings.
Citation No. 6205051, alleges a violation of the standard at 30 C.F.R. § 56.12001 and
charges as follows:
The screening conveyer disconnect box was not provided with proper fuse
protection. There were three different size fuses in the disconnect box. There was
one-20 amp fuse, one-25 amp fuse and one-30 amp fuse. This condition created a
hazard of an employee being injured should the circuit protection fail to break the
circuit.
The cited standard, 30 C.F.R. § 56.12001, provides that "circuits shall be protected
against excessive overload by fuses or circuit breakers of the correct type and capacity."
Inspector Hackworth testified that the disconnect box indeed did not have proper fuse
protection for the screening conveyer circuit which had a ten-horse power motor. According to
Inspector Hackworth the National Electrical Code, the accepted industry standard, provides that
a 24.5-ampere fuse would be required under the circumstances. A 30-ampere fuse was being
used here. According to Hackworth such a fuse would not break the circuit in the presence of
an excessive overload. Based on Hackworth's credible testimony I find that the violation is
proven as charged.
In its post-hearing brief Respondent argues that the National Electric Code actually
pennits a 31.5 ampere fuse. Respondent also encloses a portion of a document (not introduced
at hearing) purporting to be extracted from the National Electric Code. Respondent failed
however to support this argument at the evidentiary hearing with the necessary testimony, under
oath and subject to cross examination, and with properly authenticated documentary evidence. I
therefore cannot give any weight to the Respondent's argument herein.
Hackworth found gravity to be low and injuries unlikely because a short or fault would
have to occur with an employee near the motor circuit in order to cause injuries. If an injury
occurred however, the electrical shock could result in fatal injuries. Hackworth found the
operator chargeable with moderate negligence since it had received two warnings in a prior
compliance assistance visit regarding the same condition. Within this framework of evidence I
find tha.t the violation is proven as charged, that gravity was low and that negligence was
moderate.
Citation No. 6205053 alleges a violation of the standard at 30 C.F.R. § 56.14132(a) and
charges as follows:

173

The backup alarm on the Caterpillar D8K Doze~, was not maintained in
functional condition. The wire to the battery was pulled lose and the alarm would
not work. This condition created a hazard to an employee-being backed over by
the dozer.
The cited standard, 30 C.F.R. § 56.14132(a) provides that "[m]anually-operated horns or
other audible warning devices provided on self-propelled mobile equipment as a safety feature
shall be maintained in functional condition."
Inspector Hackworth testified without contradiction that the backup alarm on the cited
dozer would not sound when the dozer was placed in reverse. It appears that the wire
connections to the battery had corroded, causing the malfunction. Respondent argues in its brief
that it should not be charged with violations resulting from corrosion because that is something
beyond its control. No evidence has been presented however to suggest that corrosion cannot be
controlled through proper maintenance or that such a condition could not be discovered upon
proper inspection. In any event it is the well-established law that violations under the Act may be
found regardless of whether the operator is at fault. See e.g., Asarco v. FMSHRC, 868 F.2d 1195
(10th Cir. 1989). Accordingly I find the violation proven as charged.
Hackworth found that the violation was of low gravity concluding that injuries were
unlikely since the equipment operated in an area where there were no other employees. He did
note, however, that injuries could be fatal if a pedestrian was run over. Hackworth also found the
operator chargeable with low negligence in reliance upon Mr. Nelson's statement that the alarm
was functioning the last time the dozer was driven. The violative condition was abated when
Carter repaired the alarm by clipping off the corroded end of the wire conductor and reconnecting
it. According to Carter, this procedure took only two minutes. The inspector's findings of
gravity and negligence are accepted for purposes of assessing a civil penalty herein.
Civil Penalties
Under Section 11 O(i) of the Act, Commission judges must consider the following criteria
in assessing a civil penalty; the operator's history of previous violations, the appropriateness of
such penalties to the size of the business of the operator charged, whether the operator was
negligent, the affect on the operator's ability to continue in business, the gravity of the violation
and the demonstrated good faith of the person charged in attempting to achieve rapid compliance
after notification of a violation.
The gravity and negligence relating to each violation have previously been discussed.
Respondent has a significant history of violations as evidenced by Petitioner's Exhibit No. 8. It
has been stipulated that the operator herein is a metal/non-metal mine operator with 1,960 hours
worked in the last two quarters of the year 2000. The operator is therefore small in size. There is
no dispute that the operator demonstrated good faith in attempting to achieve rapid compliance
after notification of the violations. The operator has the burden of proving that a particul~ civil

174

penalty would affect its ability to remain in business. Broken Hill Mining Co., 19 FMSHRC 673
(April 1997). In the absence of specific proof that the penalties would affect the operator's
ability to continue in business it is presumed that there would be no such adverse affect. See
Sellersburg Stone Company, 5 FMSHRC 287 (March 1983) aff'd 736 F.2d 1147 (71h Cir. 1984).
ORDER
Citations No. 9205048 and 6205050 are hereby modified to delete the "significant and
substantial" findings. All remaining citations are affirmed and Nelson Brothers Quarries is
directed to pay the following civil penalties within 40 days of the date of this decision: Citation
No. 6205045 - $55, Citation No. 6205046 - $55, Citation No. 6205047 - $55, Citation No.
6205048 - $75, Citation No. 6205050 - $65, Citation No. 6205051 - $55, Citation No. 6205053 $55.

I.

1~&

.

eh ck
/
strative Law dge
Distribution: (Certified Mail)

Daniel J. Haupt. Conference & Litigation Representative, U.S. Dept. of Labor, Mine Safety and
Health Administration (MSHA), 1100 Commerce Street, Room 4C50, Dallas, TX 75242-0499
Paul M. Nelson, President, Nelson Brothers Quarries, P.O. Box 334, Jasper, MO 64755

175

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

February 14, 2002
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 2000-133
A.C. No. 15-18030-03507

v.

COUGAR COAL COMPANY, INC.,
Respondent

Mine No. 8

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 2000-277
A.C. No. 15-18030-03508A

v.

LESLIE B. COMBS, employed by
COUGAR COAL COMPANY, INC.,
Respondent

Mine No. 8

DECISION

Appearances: Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Secretary;
Michael J. Schmidt, Esq., Wells, Porter, Schmidt & Jones, Paintsville, Kentucky,
for the Respondents.
Before:

Judge Weisberger
INTRODUCTION

In June 1999, the Cougar Mine No. 8 site at issue was no longer producing coal, as it's
coal had been depleted, and the site was in the process of having it's equipment dismantled and
moved to another location. Among the pieces of equipment to be moved was a power center. A
high line cable that extended from a utility pole ("A-1 pole") provided the source of electricity to
176

the power center, which in tum supplied electricity to various .underground equipment. Each of
the three phases located inside the high line cable that ran from the A-1 pole to the power center
was connected, respectively, to one of the three disconnect switches located 22 feet above the
ground on the middle cross-arm of the A-1 pole. The top of each of these three disconnects was
connected to a phase that extended 1.2 miles to the main line located at the mouth of Butcher
Hollow. When the disconnect switches were closed, electric current was then allowed to flow
from the main line to the power center. When the disconnects at the A-1 pole were open, electric
current could not flow·from the main-line to the high line cable located at the bottom of the
disconnect and then to the power center.
On June 16, 1999, Paul Preece, who was not a qualified electrician, was at the site to
assist in the removal of equipment owned by the Cougar Coal Company ("Cougar"). He opened
a series of disconnect switches, and disconnected a series of capacitors that were mounted on the
B-1 utility pole located midway between the A-1 pole and the main line at Butcher Hollow.
Preece then used the boom of a boom truck to ascend the A-1 pole. Preece, who was not wearing
a hat or any kind of restraining device that would have kept him from falling, climbed onto one
of the cross-arms of the pole, and ·began to undo the terminals connecting the phases from the
high line cable to the bottom of the disconnect switches. He inadvertently came in connect with
one of phases, and was subjected to 7,200 volts of electricity. Preece then fell 22 feet from the
cross-arm. Before he landed on the ground, his head had struck the edge of the power center. He
was found unconscious and without any pulse. Preece was revived, but as a result of the shock
and fall, suffered lacerations to his head, serious bums, a fractured vertebra in his neck, and had
to be hospitalized for several weeks. As of July 17, 2001, he had not returned to work.
After the accident, Cougar moved the boom truck from the accident site without first
obtaining permission from MSHA, and failed to notify MSHA of the accident.
Subsequent to an investigation, MSHA Inspector Mark V. Bartley, issued, to Cougar,
three Section 104(d) orders alleging violations of 30 C.F.R. §§ 77.807-2, (Order No. 7352787),
77.1710(g), (Order No. 7352788), and 77.501, (Order No. 7352789), respectively. He also
issued a Section 104(d) citation alleging a violation of 30 C.F.R. § 77.704-l(b), (Citation No.
7352786), and two Section 104(a) citations alleging violations of 30 C.F.R. §§ 50.12, (Citation
No. 7352790) and 50.10, (Citation No. 7352791), respectively. The Secretary in the proceeding
seeks civil penalties to be imposed as a result of these violations. Additionally, the Secretary
seeks the imposition of a civil penalty under Section 110(c) of the Act against Leslie B. Combs 1
in connection with the alleged violation by Cougar of Section 77.501, supra.
A hearing was held regarding these proceedings in Louisa, Kentucky.

1

Combs was the general manager of Eagle Rock, and was authorized to be responsible for the
removal of the mine equipment at the site at issue.

177

DISCUSSION
I.

Citation No. 7352786, and Order Nos. 7352787, 7352788, 7352789 and Combs'
Liability Under Section llO(c) of the Act.
A.

Violation of Section 77.501, supra (Order No. 7352789)

Order No. 7352789 alleges a violation of 30 C.F.R. Section 77.501 which, as pertinent,
provides as follows: "[n]o electrical work shall be performed on electric distribution circuits or
equipment, except by a qualified person or by a person trained to perform electrical work and to
maintain electrical equipment under the direct supervision of a qualified person." Cou$ar, in its
brief, indicates that it does not dispute that the actions of Preece were a violation of Section
77.501, supra. Since Cougar does not dispute the Secretary's assertion and proof in this regard, I
find that Cougar did violate Section 77.501, supra.

1.
Combs' Liability Under Section llO(c) of the Act Reearding the
Violation of Section 77.501, sypra, and Cougar's Unwarrantable Failure in Connection
With This Violation

a.

Combs' Actions and His Liability Under Section llO(c) of the

In order for the Secretary to establish Combs' liability under Section 110(c) of the Act in
connection with the violation of Section 77.501, supra, it must be proven by the Secretary that
Combs "knowingly authorized, ordered or carried out such violation" (Section l lO(c) supra).
There is no evidence that Combs ordered or carried out the violation. Thus, to prevail, the
Secretary must establish that Combs "knowing authorized" the violation. fu Freeman United
Coal Mining Co. v. FMSHRC 108 F. 3nt 358, 363 (D.C. Cir 1997), the D.C. Civil Court of
Appeals found reasonable the Commission's definition of"knowingly" ~et forth in Secretary of
Labor v . Richardson 3 FMSHRC 8, 16 (1981), affd 689 F. 2"d 632 (6th Cir. 1981) as follows:
"Knowingly," as used in the Act, does not have any meaning of bad faith or evil
purpose or criminal intent. Its meaning is rather that used in contract law, where it
means knowing or having reason to know. A person has reason to know when he
has such information as would lead a person exercising reasonable case to acquire
knowledge of the fact in question or to infer its existence. (Internal quotations
omitted.)

178

The only evidence2 relied on by the Secretary in support of her position that Combs
authorized Preece to climb the A-1 pole and remove the high line from the disconnects, consists
of two hearsay statements made by Preece.
On July 15, 1999, in his hospital room, Preece told MSHA Inspector Mark Bartley, and
Kentucky Department of Mines and Minerals, Inspector Wes Gerhard, that when he suggested to
Combs that the high line could be saved by taking it down from the utility pole, Combs
instructed Preece to take a hot stick and pull the fused disconnects located at the mouth of the
hollow. (Gx. 6).
MSHA Special Investigator, Douglas Fleming, testified that on October 17, 1999, he
interviewed Preece at his home. According to Fleming, Preece told him that when Combs told
him (Preece) to cut the high line at the power center, he (Preece) told Combs that the high line
could be saved by disconnecting it from the utility pole, and that Combs responded by telling him
(Preece), that, in essence, ifhe (Preece) took this action, to make sure that the disconnects were
pulled. Although Preece's hearsay statements to the inspectors were recorded, I find them
unreliable, inasmuch as they were not corroborated by any other witness. Also, significantly,
they were essentially recanted by Preece in his sworn testimony at the hearing.
In contrast to Preece's hearsay statements relied on by the Secretary, Combs, who was
Preece's supervisor, testified that on June 15, 1999, in the evening, he told Preece that the power
center on the subject site was to be removed, and that all electric power to the power center had
been disconnected. Combs told Preece to disconnect the high line from the power center by
cutting it with a hacksaw at a point about six to eight inches from the place where the high line
entered the power center, or to loosen a wire from inside the power center. According to Combs,
Preece said, in response, that he would probably take the wire down from the A-1 pole
disconnect, as that was an easier task to perform. Combs testified that he then told Preece that
should McCoy Contractors be present at the site, to let them disconnect the wire from the pole.
According to Combs he told Preece that should McCoy Contractors not be at the site, then Preece
should disconnect the high line at the power center. Combs denied telling Preece that if Preece
were to disconnect the high line at the pole, he was to make sure that the disconnects were pulled
at the main line located in the hollow. Combs stated that the following day, in the shop, he again
infonned Preece, to cut the high line at the entrance to the power center. Since Preece, in his
2

The Secretary argues that her finding of unwarrantable failure regarding Cougar's violation of
Section 77.501, supra, (Order No. 7352789), and the l lO(c) action against Combs, is based "at least [in]
part", on the instructions that Combs, who was the general mine manager and was responsible for the
removal of the equipment at the subject site, gave to Preece, to cut the high line cable near the power
station even though he knew that Preece was not a qualified electrician. This argument is without merit,
inasmuch as Preece never did cut the high line cable near the power station, and the 77.501 supra
violation was based only on Preece's action, not on action not taken by him. Hence, Combs' instructions
can not form the basis of a 110(c) violation in connection with the violation of Section 77.501 supra at
issue.

179

testimony did not contradict Combs' version of the conversatio.n s at issue, I accept Combs'
version.
For the reasons set forth above, and placing most weight upon the testimony of Combs,
whom I found credible, I find that the Secretary has not established that Combs authorized
Preece's actions that constituted violations of Section 77.501, supra. Fu~er, I find that there is
no evidence that Combs had actual knowledge of these actions.
The Secretary further asserts, in essence, that an additional basis for a finding of Section
l IO(c) liability on Combs' part is his failure to have been on the site on June 16 to carefully
supervise Preece . In this connection, the Secretary argues that since Preece had expressed to
Combs, on June 15, and again on June 16, his interest in ascending the A-1 pole to remove the
high line at the disconnect in order to save the line, it should be inferred that Preece might
disregard his (Combs') order not to take this action. The Secretary argues that, a~ordingly,
Combs should have been on the site on.June 16 to carefully observe Preece. There is no
evidence to suggest that Preece had on any occasion, disregarded an order of a supervisor or had
proceeded to act contrary to such an order. Thus, I find the Secretary's argument too speculative
to support a finding that Combs demonstrated "aggravated conduct" as opposed to "ordinary
negligence".
For all the above reasons I conclude that it has not been established that Combs violated
Section l lO(c), supra, See, Beth Energy Mines, 14 FMSHRC 1232, at 1245 (1992)).

2.

Cou2ar's Unwarranta~le Failure
a.

Jarvis' Actions

In essence, the Secretary argues that a finding of unwarrantable failure may be based on
the following assertions regarding Rick Jarvis, the mine foreman supervising the dismantling of
the equipment at the site: ( 1) that Jarvis gave Preece a hot stick for the purpose of de-energizing
the main circuit; (2) that Jarvis instructed Preece what to do with the hot stick; (3) that
accordingly, Jarvis knew that Preece was intending to climb the A-1 pole to disconnect the high
line from the disconnect terminals and; (4) that Jarvis knew that Preece was not a qualified
electrician.
The Secretary adduced a statement signed by Rick Jarvis, that on June 16, "Paul said he
would pull the disconnects." (Gx. 17, p. 2) In addition, Preec~ in his testimony as part of the
Secretary's case, and in a recorded statement, indicated that prior to his ascending the A-1 pole,
he had obtained a hot stick from Jarvis, and the latter told him "[t]o make sure I push the button
to ground the capacitors." (Tr. Vol ill, 37) Further, the Secretary's witnesses testified that the
only use for a hot stick is to open or close fuse disconnects. Since none of these facts were
impeached, contradicted or rebutted by Cougar, an inference may be drawn that Jarvi~, being the
supervisor on the site, should reasonably have taken steps to ensure that the hot stick would be
used only by a qualified electrician. The Secretary argues that Jarvis' conduct, in this regard,

180

rose to the level of aggravated conduct inasmuch as he knew that Preece was not a qualified
electrician. However, Jarvis was not called to testify by the Secretary or by Cougar, to establish
that he had personal knowledge of this fact. Nor did any person testify that Jarvis was either
informed that Preece was not a qualified electrician, or was provided with written documentation
of that fact. Hence, there is insufficient evidence in the record to predicate a finding that Jarvis
knew or reasonably should have known that Preece was not a qualified electrician.
The Secretary argues, in essence, that since, according to Preece, Jarvis told the latter to
make sure to push the buttons on the capacitors when he gave him the hot stick, it is to be
inferred that Jarvis opined that Preece did not have expertise in de-energizing electrical lines, and
had to be instructed how to perform such a procedure. Hence, according to the Secretary, it is to
be concluded that Jarvis did not believe the Preece was a qualified electrician. I find that this
inference, going to Jarvis' state of mind, to be too speculative to predicate a finding that Jarvis
knew or should have known that Preece was not a qualified electrician. I thus conclude the
Secretary has failed to establish that a finding of unwarrantable failure can be based on Jarvis'
actions.

b.

Combs' Actions

For the same reasons set forth above, regarding the analysis of the analysis of the level of
Combs conduct pertaining to Section 1 lO(c) liability, I(A)(l)(a), infra, I conclude that the
Secretary failed to establish that Combs' actions rose to the level of aggravated conduct relating
to the violation of Section 501, supra.
Accordingly, after evaluating the actions of Jarvis and Combs, I find that the Secretary
has not established that Cougar's violation of Section 77.501, supra, was as the result of its
unwarrantable failure.

3.

Significant and Substantial

In Mathies Coal Co., 6 FMSHRC I, 3-4 (January 1984), the Commission explained its
interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure ·of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985), the
Commission stated further as follows:

181

We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language .o f section 104(d)(l), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U. S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The evidence clearly establishes that the violation herein, Pierce's pulling disconnects,
contributed to the risk of the hazard of contact with high voltage electric lines or equipment.
Also, inasmuch as this resulted in an injury of a reasonably serious nature to Preece, I conclude
that all the elements set forth in Mathies, supr~ have been met and therefore it has been
established that the violation was significant and substantial.

4.

Penalty

I find that the level of gravity of the violation to have been extremely high inasmuch as it
did in fact result in contact with equipment energized at 7 ,200 volts, which could have caused a
fatal injury. I find this a significant element in analyzing the matrix of the factors set forth in
Section 1lO(c) of the Act. I have considered Cougar's violation history, the fact that there is not
any evidence that the imposition of the penalty would adversely affect its ability to continue in
business, the lack of any evidence of non-good faith abatement, and the fact that Cougar is a
small mine. I note, however, that the Secretary has asserted that Cougar's negligence rose to the
level of unwarrantable failure, which, in essence, is equated with aggravated conduct. For
reasons discussed above, (l)(A)(l), infra, I find that Cougar's negligence did not reach this level
and was not more than moderate. Accordingly, the high penalty sought by the Secretary is to be
reduced significantly, as the record establishes that the level of Cougar' s negligence to be
considerably less than that asserted by the Secretary, which had fanned one of the bases for the
penalty it was seeking. I conclude that a penalty of $30,000 is appropriate for the violation of
Section 77.501, supra, (Order No. 7352789).

B.

Citation No. 7352786

I.

Violation of Section 77.704-l(b), supra

The parties stipulated that the Cougar did violate Section 77. 704-l(b), supr;!, and I accept
this stipulation and so find.

2.

Unwarrantable Failure

The specific violative acts of Preece, attributed to Cougar that have been stipulated to as
constituting the violation of Section 77.704-l(b), are as follows: (1) attempting the de-energize
the three phase power line supplying power to the mine, and (2) ascending the A-1 utility pole

182

and trying to undo the terminals connecting the high line to the disconnect switches. The record
is devoid of any evidence tending to establish that on June 16 Jarvis could reasonably have
anticipated that any of Cougar's employees were going to disconnect a high line from the fused
disconnect on the A-1 pole. 3 Accordingly, there is no basis to predicate a finding that Jarvis, in
his capacity as supervisor on the site, could reasonably have anticipated Preece's unauthorized
action removing the high line at the disconnect on the A-1 pole. Further, as discussed above, the
record does not support a finding that Combs either authorized or approved Preece's action in
this regard and had, indeed, indicated his opposition to it. I find that the Secretary has not
established that Cougar's violation of Section 77.704-l(b) was the result of its aggravated
conduct, and thus can not be determined to be an unwarrantable failure (see Emery, supra,).

3.

Si2nificant and Substantial

For the reasons set forth above regarding the violation of Section 77.501, supr~
((I)(A)(2), infra), inasmuch as the underlying act and location of both these violations were the
same, I find that the violation of Section 77.704-l(b), supra, was significant and substantial (see
Mathies, supra.).

4.

Penalty

I note that the Secretary seeks a penalty of $55,000 for the violation of Section 77.7041(b), supra. Since the acts and conditions surrounding the violation were the same, essentially as
that which gave rise to the violation of Section 77.501, supra, I find that for the reasons discussed
therein that the violation herein, which could have led to a fatality was of a very high level of
gravity. I note, however, that the Secretary has asserted that Cougar's negligence rose to the
level of unwarrantable failure, which, in essence, is equated with aggravated conduct. For
reasons discussed above, (I)(B)(2), infra, I find that Cougar's negligence did not reach this level
and was not more than moderate. Accordingly, the high penalty sought by the Secretary is to be
reduced significantly, as the record establishes that the level of Cougar's negligence to be
considerably less than that asserted by the Secretary, which had formed one of the bases for the
penalty it was seeking. The additional factors set forth in 11 O(i) of the Act were discussed
regarding the violation of Section 501, supra, (I)(A)(4 ), infr~ and are common to all the matters
at issue herein, and I reiterate those findings. Thus, taking into account all the.above factors,
placing considerable weight on the act that Cougar's negligence was significantly less than that
asserted by the Secretary, I find that a penalty of $30,000 is appropriate for this violation.

3

Indeed, the unimpeached and uncontradicted testimony of Dennis Jewel, one of Cougar's
electricians, Johnny McCoy, one of the principals of McCoy Contractors, Inc., and Billy R. Cantrell, the
president of Azar Coal Corporation, who oversees the installation and removal of electric lines at various
companies including Cougar, established that it is standard procedure for McCoy Contractors to
dismantle and remove Cougar's high line wires, and this activity is not done by any of Cougar's
electricians.

183

C.

Order Nos. 7352787 and 7352788
1.

Violation of Sections 77.80-7-2, supra. and 77.1710Ci>. supra.

Cougar was cited with violations of 30 C.F.R. Section 77.807-2 and 77.171 O(g), supra. It
was stipulated by the parties that in using the boom of a truck to ascend the A-1 pole, Preece was
operating the boom of the truck within 10 feet of energized power lines in violation of Section
77.807-a, supra. It was further stipulated that while ascending the A-1 pole, and climbing onto
the cross-ann, Preece was not using any kind of safety or harness device which would have
prevented him from falling, which was a violation of Section 77.17IO(g), supra. In light of these
stipulations, I find that Cougar did violate Section 77.807-2, supra, and Section 77.l 710(g), supra

2.

Si2nificant and Substantial

Since Preece's actions in violating Section 77.807-2 and Section 77.l 710(g), ~.were
all, essentially, a part of the same action and activity as the actions constituting violations of
Sections 501 and 1704-1 (b), supra, and since the former two violations were found to be
significant and substantial, for the same reasons set forth above, I find that the violations of
Section 77.807-2, supra, and Section 77.l 710(g), supra, similarly to be significant and
substantial.

3.

Unwarrantable failure

The Secretary argues that a finding of unwarrantable failure should be predicated on
Combs' action in authorizing Preece to climb the pole at issue, which led to the violations cited,
and which evidenced Combs' inadequate supervision. This argument had been advanced by the
Secretary and rejected above in the analysis of Combs' liability under Section 110(c) of the Act.
(I)(A)(l)(a), infra.
The Secretary also argues that since Jarvis gave Preece a hot stick and told him what to
do with it, he therefore knew Preece intended to climb the pole. The Secretary asserts that Jarvis
was within clear sight of Preece during the entire time that Preece moved the boom within 10 feet
of the energized lines, raised himself up to the cross·arms at the A-1 pole without a harness or
restraining device, and began to loosen the high line from the A-1 disconnects.

In addition, the Secretary argues that these violations were the direct result of Jarvis'
inadequate supervision. In this connection, Combs, in a signed statement, indicated that he had
told Jarvis~ on June 16, that "we would be moving that day", and that Preece and another worker
would be bringing the boom truck. This hearsay statement was not impeached when Combs
testified, nor was Jarvis called to testify to contradict this statement. Accordingly, I find that
Jarvis, was aware that a boom truck was going to be brought on the site, and should reasonably
have assumed some responsibility in supervising that the boom truck would be used properly.
184

According to the uncontradicted testimony of Preece, Jarvis gave him a hot stick. Thus,
Jarvis should have ensured that it would be used by a qualified electrician to open the
disconnects. However, there is no evidence that Preece used the hot stick in any actions that led
to the two specific violations at issue herein. There is not any evidence that Jarvis knew or
reasonably should have been expected to know that Preece would initiate the action of climbing
the A-1 pole to work on the middle arm, which directly led to these violations. In this
connection, the Secretary relied upon inspector Bartley's testimony that Jarvis, on June 16, most
certainly would have to have seen the boom extended from the surface of the property, and thus
was, in essence, guilty of aggravated conduct in not making sure that the boom truck was not ·
within 10 feet of the high line. Bartley's testimony is at best speculative since he was not on the
site at the time, and did not have personal knowledge of Jarvis' location, vis a vis the A-1 pole
during the events at issue. Nor is there any testimony by any other witness placing Jarvis, during
the time of the events at issue, in a location which would have given him a direct unobstructed
line of sight to the portion of the pole at issue. The only evidence relating to Jarvis' location at
that time, consists of a written statement signed by him to the effect that at the time of the
accident he was loading the belts structure on the scoop. There is no evidence in the record,
relating the location of the belt structure on the scoop to the A-1 pole, either in terms of
horizontal or vertical distance. Nor is there any evidence relating to the contour of the site, or the
presence or absence of obstructions between these two locations.
Accordingly, for all the above reasons, I find that although Jarvis was negligent in his
supervision it has not been established that the level of this negligence reached aggravated
conduct. Accordingly, I find that it has not been established that these violations resulted from
Cougar's unwarrantable failure. (See Emery, supra)

4.

Penaltv

a.

Violation of Section 77.1710(2). supra.

The evidence clearly establishes that the violation herein of not using a safety belt or a
harness device while climbing onto the cross-arm of the A-1 pole, in close proximity to a
energized high voltage electrical equipment, was a violation of a very high level gravity, as it
could have resulted in a serious injury. However, the penalty sought by the Secretary, appears to
be predicated upon a level of negligence equal to aggravated conduct. For the reasons set forth
above, (I (C)(3)), infra, I find that although Cougar was negligent, the level of its negligence was
not as high as aggravated conduct. Hence, the penalty sought by the Secretary is to be mitigated
to a significant degree. Taking into account the additional factors set forth in Section 11 O(i) of
the Act, .as discussed above, (I(A)(3)), infra, which are the same for this violation, I find that a
penalty of $30,000 is appropriate for the violation of Section 77 .171 O(g), supra.

b.

Violation of Section 77.807-2, supra

I find that the level of gravity of this violation was high, inasmuch as it provided access to

185

the pole for Preece, and thus facilitated contact with high voltage energized equipment which
could have led to a fatality. However, I find that the penalty sought by the Secretary, is
predicated to some degree upon the level of Cougar's negligence, which is asserted to have been
high enough to have constituted aggravated conduct. For the reasons set forth above, (l(C)(3)),
infra, I find that although Cougar was negligent, the degree of its negligence did not reach
aggravated conduct. Accordingly, the penalty sought by the Secretary is to be reduced to a
significant amount. Taking into account the additional factors set forth in Section 11 O(i) of the
Act which are the same·as discussed above, (I(A)(3)), infra, I find that a penalty of $16,350 is
appropriate for this violation.

II

Citation Nos. 7352790 (Violation of 30 C.F.R. § 50.12) and 7352791 (Violation of 30
C.F.R. § 50.10)
A.

The Violation of 30 C.F.R. §§ 50.12 and 50.10

30 C.F.R.§ 50.10 provides, as pertinent, that "[i]f an accident occurs, an operator shall
immediately contact ... MSHA. ...." (Emphasis added.) 30 C.F.R.§ 50.12 provides, in essence,
as pertinent, that ..[u ]nless granted permission by ... MSHA .. ., no operator may alter an accident
site or an accident related area until completion of all investigations". (Emphasis added.)
The facts relating to both these Citations are not at issue. Relating to Section 50.l 0,
supr~ the parties stipulated that after the accident, Cougar failed to notify MSHA of the accident.
Relating to Section 50.12, supr;!, the parties stipulated that after the accident, Cougar moved a
boom truck and high voltage power center from the accident site without first obtaining
permission from MSHA.

In order for the Secretary to establish that these acts of the operator violated Sections
50.10, supra. and 50.12, supra, respectively, it must be established that there was an "accident" as
that term is defined in the regulations. 30 C.F.R. § 50.2 sets forth definitions of terms used in
part 50 of the Code of Federal Regulations. 30 C.F.R. § 50.2(h)(2) provides, as pertinent, that an
accident means "an injury to an individual at a mine which has a reasonable potential to cause
death;". (Emphasis added.) The common meaning of the word i.ni.ll:y means either an act that
hanns, or the damages suffered as a result of an act. However, inasmuch as in the regulatory
scheme at issue an accident is defined, inter alia, as pertinent, as an ini.m:y having a reasonable
potential to cause death, it is clear that the word~ as used in Section 50.(h)(2), supra,
defining an accident, means not the act itself, but rather the hann resulting from the act. In this
context, an operator's responsibilities under Sections 50.10 and 50.12, supra, must be evaluated
not in terms of an analysis of the act at issue i.e., coming in contact with 7,200 volts of electricity
and falling at least 18 feet. RatQ.er, the nature and extent of Preece's injuries must be evaluated
as to whether they had a reasonable potential to cause death.
The parties stipulated that Preece received an electric shock of exposure to 7 ,200 volts
and as a result fell 18 feet to the ground, and hit his head on the edge of the power center before

186

hitting the ground; that he was found on the ground with no pulse; that C.P.R. was administered
to him and he revived; and that as a result of the electric shock and fall, he suffered lacerations to
his head, serious bums, and a fractured vertebrae in his neck, and he had to be hospitalized for
several weeks. In the Secretary's brief, the Secretary asserts that "it is within the realm of
common knowledge that these injuries entail a reasonable potential to cause death. "However,
the Secretary did not adduce any medical evidence or cite any recognized medical authorities to
support this conclusion. In support of her conclusion, the Secretary refers to the testimony of
Inspector Bartley, who was trained as an accident investigator. However, there is no evidence
that Inspector Bartley has any medical degree or received any medical education.
Further, Bartley's testimony related soley to the nature of the accident. He testified that
based upon his investigations, most people die after coming in contact with 7,200 volts of
electricity. He also testified that persons fall from heights lower than 18 feet, and suffer fatal
injuries. This testimony, which relates to analysis of the act of the accident, is not relevant to an
analysis of whether Preece's injuries had a reasonable potential to cause death.
The Secretary also asserts, referring to Preece's having broken his neck, that it is common
knowledge that a broken neck can cause death. The Secretary, additionally, refers to Preece's
testimony that his treating physicians told him that he was lucky that he didn't die as a result of
having broken his neck. There is not any medical evidence cited by the Secretary, nor is any
found in the record that supports the Secretary's assertion that it is common knowledge that a
broken neck "can" cause death. Preece' s hearsay testimony that his physician told him that he
was lucky that he didn't die as a result of breaking his neck, is not accorded much weight as there
is no medical evidence in the record to support a conclusion that Preece's injuries had a
reasonable potential to cause death.
The record does not contain any evidence from any of the ambulance medical personnel
who observed Preece at the site of the accident, regarding their observations and opinions
relating to Preece's prognosis. Preece was taken from the accident site to the Emergency
Department at the Paul B. Hall Regional Medical Center in Paintsville, Kentucky. The records
from this department list the various signs of injury noted upon examination of Preece, as well as
interpretation of tests taken, and diagnoses. However, no opinion was set forth regarding
whether these injuries had a reasonable potential to cause death. Later on that day, Preece was
transferred, by helicopter, to Cabell Huntington Hospital in Huntington, West Virginia. It is
significant to note that when transferred Preece's condition was described in the emergency
record as "serious". Thus, this medical evidence fails to establish that Preece's injuries were
deemed either critical, or~ serious by the emergency department.
The hospital records from Cabell Huntington Hospital indicate that the admitting
physician noted various signs on examination, also, laboratory and x-ray findings were described.
The assessment, upon admission was electrical injury, third degree bums, trauma patient, and
multiple contusions. However, the physician did not set forth any opinion that the injuries were
such that there was reasonable potential to cause death. It is significant that the admitting
187

physician noted>that he had monitored Preece "constantly" during his emergency room stay, and
Preece did not have any arrhythmia.
A consultation prepared on the same date noted that the extent of burns and findings were
suggestive that an electric current may have followed a neurovascular tract down the right leg.
However, the consulting physician set forth in his ASSESSMENT AND·PLAN, a plan to treat
Preece's burns. There is no indication that the assessment found there was any potential of these
injuries to cause death.
Accordingly, I find that the Secretary has not adduced sufficient. evidence to establish that
Preece's injuries sustained on June 16 were $Uc,h as to have had a reasonable potential to cause
death. Nor does the record establish that Cougar' s agents should reasonably have concluded that
Preece's injuries had such a potential. Cougar's witnesses testified thafwben they observed
Preece they were unable to observe the extent of his injuries, but that be was conscious, alert,
responsive and coherent. Their testimony was n~t impeached or contradicted.
For these reasons, I find that it has not been established that on June 16 there was an
"accident" at the site, as defined in Sect~on 50.2(g)(2), ~u,pra. Thus, Cougar was not under any
responsibility to fulfill the requirements of Sections 50. l 0 and 50.12, supra, which must be
followed only in the event of ~Y " accident". Accordingly, I find that Cougar did not violate
Sections 50.10, supra, and did not violate Section 50.12, supra.

ORDER
It is ORDERED that (1) the following Citation and Orders be mod:i,fjed to indicate that
they are not the result of Cougar's unwarrantable failure: Citation No. 73547_8.6 , and Order Nos.
7352787, 7352788 and 7352789; (2) Citation Nos. 7352790 and 7352791 be dismissed; (3)
Docket No. KENT 2000-277 be dismissed; and (4) within 30 days of this Decision, Cougar shall
pay a total civil penalty of $106,350.

~is~
Administrative Law Judge

Distribution (Certified Mail)
J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215
Michael J. Schmidt, Esq., Wells, Porter, Schmidt & Jones, 327 Main Street, P. 0 . Drawer 1767,
Paintsville, KY, 41240-1767
/sc

18~

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

February 20, 20002
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 99-20-M
A.C. No. 29-00762-05515

v.

SXJEW
CHINO MINES COMPANY,
(previously captioned as Burro
Chief Copper Company)
Respondent

DECISION

Appearances:

Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department of Labor
Dallas, Texas, for Petitioner;
Katherine Shand Larkin, Esq., JACKSON & KELLY, PLLC,
Denver, Colorado, for Respondent;
Lawrence J., Corte, Esq., PHELPS DODGE CORPORATION, Legal
Department, Phoenix, Arizona, for Respondent.

Before:

Judge Cetti

CHINO MINES COMPANY
The Chino Mines Company is owned and operated by Phelps Dodge Chino, Inc., and
employs nearly 570 miners. The company's Solvent Extraction Mining Plant (SX/EW) is an
open pit copper mine which employs approximately 40 miners. The location of the accident was
the Motor Control Center (MCC) of the SX/EW plant tankhouse where the main 480-volt, 1200
amp current breaker exploded. (Tr. 22). There is no dispute as to the material facts of how,
when, and where the accident occurred and the identity of the three employees who were injured.

189

I
THE ACCIDENT
On Saturday, June 7, 1997, at approximately 6:15 a.m., power was lost to the SX/EW
tankhouse. The SX!EW Shift Supervisor, Larry Filkins and Solvent Extraction Operator, Bruce
Shannon, requested a shift electrician to determine the cause of the power failure and to restore
power. The Motor Control Center (MCC) consists of a large number of breakers and motor
starters, variable frequency drives, and lights on the SX and EW plants. Upon initial inspection
of the Motor Control Center, the employees noted that the auxiliary breaker for the tankhouse
tripped. The main 480-volt, 1200-amp circuit breaker was manually turned off during Shannon's
inspection. After several initial but unsuccessful attempts, Filkins was able to reset the main
breaker but did not attempt to reset the auxiliary breaker.
The electrical supervisor, R. McSherry, and the shift electrician, Virgil Biambemandi,
responded to the call for assistance and began to trouble-shoot the MCC. McSherry disengaged
the main circuit breaker and Giambernandi isolated individual breakers to the SX/EW plant.
McSherry then opened the outer cabinet of the main circuit breaker and began metering the main
breaker to check voltage. He metered both the top and bottom of the breaker. After closing the
cabinet doors, he again attempted to reset the breaker without success. McSherry followed the
same procedure two more times. On the third attempt, an explosion and fire occurred at the main
breaker at 6:45 a.m., seriously burning Filkins, Walter Gomez, and McSherry. Giambernandi
was not injured. McSherry died early the next morning, June 81\ as a result of his bum injuries.
MSHA commenced its inspection and investigation of the June 71h accident about 3 p.m.
on Monday, June 9. As a result of the inspection and investigation, Petitioner issued three 104(a)
citations to Respondent. Citation No. 7859009 alleges a violation of 30 C.F.R § 56.12002;
Citation No. 7850488 alleges a violation of30 C.F.R § 50.10; and Citation No. 7850489 alleges
a violation of 30 C.F.R. § 56.12.

II
STIPULATIONS.
At the hearing, the parties entered the following stipulations into the record:

1.

Respondent is an operator within the meaning of the Mine Act.

2.

Respondent is subject to the jurisdiction of the Federal Mine Safety and Health
Administration.

3.

The Administrative Law Judge has jurisdiction over this matter.

190

4.

The contested citations were properly served by a duly authorized representative
of the Secretary of Labor for the Mine Safety and Health Administration upon an
agent of the respondent on the dates and places stated herein.

5.

The gravity findings for Citation No. 7859009 are appropriate, based upon the
alleged factual findings stated by the inspector in the citation.

6.

The facts as alleged by the inspector in Citation No. 7859009 would, if proven,
establish that the circuit breaker was not properly installed.

7.

Because the Respondent cannot disprove the facts alleged in the citation, it will
stipulate to the facts of the violation based upon the allegation stated in Citation
No. 7859009.

8.

The total proposed penalty in the amount of $60,000.00 will not affect
respondent's ability to continue in business.

9.

The operator took immediate abatement steps in good faith and addressed each of
the three violations. (Tr. 128; lines 22-24)

m
CITATIONS
Citation No. 7859009
This citation is issued under Section 104(a) of the Act. The citation alleges a significant
and substantial violation of 30 C.F.R. § 56.12002. That standard provides as follows:
Electrical equipment and circuits shall be provided with switches
or controls. Such switches or controls shall be of approved design
and construction and shall be properly installed. (Emphasis added.)
Respondent does not contest the material facts set forth in the citation which states the
following:
On 617197 an accident occurred at the Siemens Motor Control
Center. The main circuit breaker in the Siemens Motor Control
Center, located west of the tank house, was not properly installed.
The design of the circuit breaker was altered by the covers for the
bottom and top electrical terminals not being in place. The covers
provide insulation between phases and grounded metal parts near
the breaker. A short circuit to ground was created by the black
test lead of multi-tester being used to troubleshoot the electrical
191

problem at the motor control center, when it came in contact with
the bottom electrical terminal and the extended metal nut used
for securing the breaker to the motor control center.
Respondent did not contest the fact that the main circuit breaker was not properly
installed in that the fiberglass covers for the bottom and top electrical terminals were not in
place. The covers had been taken off at some unknown point in time and never replaced. The
main breaker involved in the accident was installed in 1992. When last inspected by MSHA
Inspector Lambert in 1993, the fiberglass covers were in place. (Tr. 73). None of the employees
interviewed by Inspector Lambert could recall seeing the covers prior to the accident. (Tr. 35).
These covers provide insulation between energized phases and grounded metal parts near the
breaker. As stated in Petitioner's Exhibit 7, page 2,
"The decedent Mr. McSherry may have grounded his meter lead
between an energized phase cormection located at the base of the
breaker and a grounded mounting bracket located immediately
adjacent to the energized phase. The grounding electrical spark
may have triggered a phase-to-phase power reaction which would
instantly create an ionized air explosion and fire."
Mr. Sherry had been employed as an electrician by Phelps Dodge Chino Mines Company
since 1992. He worked on and was familiar with all aspects of the Mine and SX/EW electrical
systems. He was certified to work on 480-volt high amperage systems. Prior to working for
Phelps Dodge Chino Mines Company, he was an electrician for the United States Navy.
(Ex. P-7).
The citation was issued as a Section 104(a) moderate negligence citation. It was nevertheless specially assessed and a penalty of $50,000.00 was proposed. The operator contends that
the proposed $50,000.00 penalty is "clearly excessive in light of the factors to be considered
under 30 C.F.R. § 100.5," and states that MSHA Agency completely disregarded the numerous
mitigating factors. Evidence was presented that Respondent did not know and had no reason to
know that the top and bottom covers for the main breaker were missing at the time of the
accident. Only the middle cover was in place. The main breaker is enclosed in the mobile
control center and is not open to view without opening both the outer and irmer panel of the
enclosure. (Tr. 48). The main panel doors have to be opened to gain access to the breaker covers
which can then be unscrewed by an electrician. Both McSherry and Giambernandi were electricians qualified to work on 480-volt equipment. Witness statements obtained by Inspector
Lambert during his investigation of the accident disclosed that unless the breaker malfunctions,
there is no· reason for the panel covers to be removed. Respondent thus contends that the
evidence supports its position that the breaker had been functioning properly for over five years
after it was installed in May 1992 by qualified hourly electricians. Witness statements obtained
by Inspector Lambert during his investigation of the accident indicated that no one was aware of
any malfunction of the main breaker between the time of its installation by Respondent's hourly
electricians in May 1992 until the time of the accident. Witness statements obtained by Inspector
192

Lambert also disclosed that there was no maintenance reason for any Chino Mines' employee to
have observed that circuit breaker between May of 1992 and the date of the accident. (Tr. 49).
Respondent, however, does not stipulate to the citation finding of negligence as
"moderate" and implies the negligence was less than "moderate." (Tr. 43). I do not find any
sound basis for diminishing the Inspector's finding of moderate negligence. It is self-evident that
an employee or someone under Respondent's control removed the fiberglass covers enclosing the
main breakers and failed to replace them at some time between fuspector Lambert's inspection of
1993 and the date of the accident. The absence of the covers appears to be a significant factor in
the fatal accident. Respondent's investigation after the accident indicated that the decedent,
Supervisor McSherry, may have caused the accident by working on the main breaker without the
fiberglass covers for the bottom terminals in place and inadvertently permitted the grounding of
his meter lead between an energized phase connection located at the base of the breaker and a
grounded mounting bracket located immediately adjacent to the energized phase. (Ex. P-7).
There was no need to remove the protective cover to test this breaker. Tr. 158, lines 8-15. I find
no reason to modify or reduce the inspector's finding of"moderate" negligence in the citation. I
agree and accept all the findings in the citation, including negligence, gravity, and S&S findings.
The penalty for this citation along with the remaining two citations will be discussed below under
Section IV with the heading "Penalty."

Citation No. 7850488
This citation was issued pursuant to Section 104 (a) of the Act and alleges a non-S&S
violation of 30 C.F.R. § 50.10. The citation states the following:
On June 7, 1997, at 0645 hours, two shift supervisors from
Burro Chief Copper Company, SX/EW, received serious
burn injuries, and an electrician supervisor from Phelps
Dodge Corporation, Chino Mines Company mine, received
critical bum injuries, when a 480-volt electrical circuit
breaker exploded. The 480-volt circuit breaker was located
in the Siemens Motor Control Center west of the tank
house at the SX/EW plant. On June 8, 1997, at 0700
hours1, the electrical supervisor died of his burn injuries.
The operator did not immediately contact the MSHA
District nor the Subdistrict office having jurisdiction
over the SX/EW plant, or call the MSHA headquarters
office in Arlington, Virginia. On June 7, 1997, at 1257

1

It is undisputed that death occurred June 8, 1997, at 1: 10 a.m. not at 0700 hours, as
alleged in the citation.

193

hours the operator did call the MSHA Albuquerque,
New Mexico, field office, and left a message on the
answering machine. The message stated that there had
been an "unplanned explosion when a switch blew up,
and it burned an electrician. The employee had been
burned enough to where he had to go to the hospital."
The cited standard 30 C.F.R. § 50.10 provides as follows:

§ 50.10 Immediate notification.
If an accident occurs, an operator shall immediately contact
the MSHA District or Subdistrict Office having jurisdiction
over its mine. If an operator cannot contact the appropriate
MSHA District or Subdistrict Office, it shall immediately
contact the MSHA Headquarters Office in Arlington, Virginia,
by telephone, at 800-746-2554.
"Accident" as used in the cited standard quoted above is defined in§ 50.2(h) as
An injury to an individual at a mine which has a reasonable
potential to cause death;

Supervisor McSherry died from his burn injuries early Sunday morning, June 81h, at I: I 0
a.m. Thus he died within 19 hours after the accident. Sadly, his death from the burn injuries he
sustained in the June 7th accident establishes beyond any doubt or debate that the iajury caused
by the accident was an injury that had a reasonable potential to cause death.
Respondent contends that its agents were not aware that McSherry's injuries were so
serious that the injury had a reasonable potential to cause death. Immediately after the accident,
McSherry was taken by ambulance to the emergency room of the Gila Medical Center Hospital
in Silver City. Accompanying McSherry in the ambulance was Respondent's Emergency
Medical Team EMT, Mark Osborne. Dr. Neely was McSherry's attending physician in the
emergency room at the Gila Hospital. Dr. Neely told the mine's EMT Osborne, that Mcsherry
had second degree burns over 70 to 80 percent of his body. Dr. Neely also told Osborne that he
thought McSherry "had a chance to survive." ( Tr. 98). By 8 a.m. they were already making
arrangements to airlift McSherry to the Burn Center in Albuquerque, New Mexico. By 9 a.m.
McSherry was being transported by air to the Albuquerque Burn Center. Tr. I 07.
Among other employees of the Respondent who were at the Gila Medical Center before
McSherry's flight to Albuquerque commenced was Mr. Steve Holmes, who at that time was
manager for Chino Mines. Holmes was the coordinator of the company's investigation of the
accident. (Tr. 158, lines 10-11). Upon hearing of the accident about 7 a.m. on June 7, Holmes

194

immediately traveled to the Gila Regional. Medical Center. He testified his first priority was to
determine the condition of the employee, Rob McSherry. At this hospital, just outside the
emergency room, Holmes met Respondent's EMT, Mark Osborne. Holmes testified that
Osborne told him that McSherry had first and second degree burns over 60 to 70 percent of his
body and that McSherry was talking coherently when he was being transported by ambulance to
the Gila Medical Center. Holmes testified that Osborne told him that he thought McSherry was
going to be okay. Holmes did not try to talk to McSherry as McSherry's family members came
to the hospital and were talking to McSherry while he was being prepared for air transport to
Albuquerque. Unfortunately, Holmes as coordinator of the investigation whose first priority was
to determine the condition ofMcSherry, did not talk to Dr. Neely to ascertain McSherry's
condition or to determine whether the injury had a reasonable potential to cause death.
Later the same day, about 11 p.m. at the Albuquerque Burn Center, McSherry's condition
took a decided turn for the worst and in spite of all efforts to save him, he died two hours later at
approximately 1 : 10 a.m.
David Hays, Respondent's safety director, was kept advised ofMcSherry's condition by
the EMT Osborne during the period of time McSherry was at the Gila Medical Center. Hays had
basic first aid training and testified he knew second degree burns could cause shock that could
cause death. He testified that Lillian Medina, an employee, was dispatched to the Albuquerque
Burn Center to be in contact with McSherry and to see how McSherry was progressing. About
11 p.m. Hays received a disturbing call from Medina that McSherry's condition changed for the
worst, and a second call at I :30 a.m. notified Hays that McSherry was dead. Hays waited until 7
a.m. that same Sunday morning, June 8th, to phone Mr. McLloyd at his residence to report that
McSherry died. Hays testified that in the 7 a.m. phone call, McLloyd acknowledged that he was
already aware of the recorded message concerning the June 7th accident that Respondent put on
MSHA's Field Office telephone recorder on Saturday, June 7th, about 1 p.m.
Dr. Neely was McSherry's attending physician in the emergency room at the Gila
Medical Center. Both parties point to Dr. Neely's statement that McSherry "had a chance to
survive," in support of their respective positions. That statement by the attending emergency
room doctor clearly demonstrates that the injury had the potential to cause death. I find that a
reasonable person with basic first aid training on receiving the information from Dr. Neely or
Osborne should have known that the injury was one that had a reasonable potential to cause
death. Respondent should also have known from the extensive bums on such a large area of
McSherry's body, that the injury had the potential to cause death. That, along with the statement
of Dr. Neely indicating only a chance to survive should have made Respondent aware by 9 a.m.,
June 7th~ that the injury had a reasonable potential to cause death. Respondent should have
called the Arlington office at the 800 number set forth in the cited standard.
The evidence presented clearly established that the injury McSherry sustained in the
accident had a reasonable potential to cause death and, in fact, the potential became a reality with
death occurring at the Burn Center within 19 hours of the time of the accident. I find that
Respondent's general manager, Holmes, the EMT man Osborne, and Respondent's safety
195

director Hays knew or should have known the injury had a reasonable potential to cause death
and should have made the immediate notification to MSHA, required by the cited standard
by 9:30 a.m. on June 7th, the day of the accident. There are mitigating circumstances which will
be discussed below under Section IV with the hea4ing "Penalty''°.

Citation No. 7850489
This citation is issued pursuant to Section 104(a). It alleges a non-S&S violation of:
30 C.F.R. § 50.12 and charges as follows:
On June 7, 1997, at 0645 hours, two shift supervisors from
the Burro Chief Copper Company, SX/EW plant, received
serious burn injuries, and an electrici;tl supervisor from the
Phelps Dodge Corporation, Chino Mines Company mine,
received critical burn injuries, when a 450 volt electrical
circuit breaker exploded. The 480-volt circuit breaker
was located in the Siemen Motor Control Center west of
the tank house at the SXJEW plant.
The operator did not preserve the accident site. On June 7,
the circuit breaker that had exploded was removed and was
replaced by another circuit breaker. On June 8, 1997, the
Operator called the MSHA, Albuquerque, New Mexico,
field office supervisor and informed him that the electrical
. supervisor had died. The operator was told not to change
anything at the accident site. On June 9, 1997, when the
accident investigation began by MSHA, the operator had
already removed the replacement circuit breaker.
The cited standard, 30 C.F.R. § 50.12, provides as follows:
Unless granted permission by a MSHA District Manager or
Subdistrict Manager, no operator may alter ru:i accident site
or an accident related area until completion of all investigations pertaining to the accident except to the extent necessary to rescue or recover an individual, prevent or eliminate
an imminent danger, or prevent destruction of mining equipment.

The accident involving the explosion ofthe 480-volt electric circuit breaker occurred at
6:45 a.m. Saturday morning, June 7, 1997. No attempt was made to call the District Manager
whose office is in Dallas, Texas. However, testimony was presented that the Albuquerque field
office had jurisdiction over the mine in question since there are no subdistrict offices in the South
Central District.

196

At 12:57 p.m. Respondent dialed the Albuquerque Field Office phone riumber. There
was no response. That office is not open on Saturdays or Sundays so a message was left on the
field office telephone recorder. The second phone call to MSHA was on June 8 at 7 a.m. This
was a courtesy call by Hays to Tom Lloyd, Supervisor of the field office. The call informed
Lloyd that McSherry died at 1: 10 a.m. that morning. In the conversation Lloyd told Hays not to
change anything at the accident site. However, the respondent, by the time of that call, had
already replaced the defective circuit breaker by 10:30 a.m. on June 7th. The MSHA
investigation commenced about 3 p.m. on Monday, June 9. Clearly there was a violation of the
cited standard. There are mitigating circumstances, however, that will be discussed below under
the Penalty heading.
IV.
PENALTY ASSESSMENT
Section 11 O(i) set forth six criteria to be considered in the assessment of penalties under
the Act:
[I] the operator's history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator
charged, (3] whether the operator was negligent, [4] the effect on
the operator's ability to continue in business, [5] the gravity of the
violation, and [6] the demonstrated good faith of the person
charged in attempting to achieve a rapid compliance after
notification of a violation.

In addition, Commission Procedural Rule 29 C.F.R. § 2700.30a emphasizes the need for
a finding on each of the statutory criteria contained in section 1 lO(i):
30 C.F.R. § 100.5(a) under the heading of"Determination of Penalty special assessment
provides as follows:
(a) MSHA may elect to waive the regular assessment formula
(§ 100.3) or the single assessment provision(§ 100.4) if the
Agency determines that conditions surrounding the violation
warrant a special assessment. Although an effective penalty
can generally be derived by using the regular assessment formula and the single assessment provision, some types of
Violations may be of such a nature or seriousness that it is not
possible to determine an appropriate penalty under these
provisions. Accordingly, the following categories will be
individually reviewed to determine whether a special assessment is appropriate.

197

Citation No. 7859009

Penalty Assessment

The violation charged in Citation No. 7859009 involves a fatality. Consequently, MSHA
under 30 C.F.R . § 100.S(a)(l) is on solid ground for special assessment of the penalty for that
violation. MSHA has less solid ground or reason for special assessment of the penalty for the
violations charged in Citation No. 7850488 concerning notification of the accident and Citation
7550488 involving alteration of the accident site prior to the completion of the MSHA
investigation.
With respect to Citation No. 78559009, I have discussed above why I found no reason to
modify any of the findings in the citation. There is no reason to diminish the Inspector's finding
of "moderate" negligence in view of the hazard created when the covers for the main breaker
were not replaced after they had already been removed at some time after Inspector Lambert' s
inspection in 1963, and the fact that Respondent's electrical supervisor on the morning of June 7
went ahead and worked on the main breaker without the required covers for the electric
terminals. Because of the violation, it took only a second of inadvertent lack of careful attention
on the part ofMcSherry to cause a serious accident that resulted in the tragic death ofMcSherry
and serious injury to three employees. The gravity of the violation was very high.
The parties stipulated that Respondent demonstrated good faith in taking immediate
abatement steps addressing each of the violations. (Stip. No.9). The size of the Respondent's
business iflarge. The annual number of hours worked by its mine's controlling entity is
approximately six million and the annual hours worked at the mine were 1,647,574. I do find as
a mitigating factor the fact that Respondent had a very good history of previous violations. Tr.
52; Tr. 212, line 1-12, Resp' s Ex. 7. Respondent, in the two years preceding the issuance of the
citations, paid penalties on ten violations. (Pet. Ex. 1).
Respondent has a good Preventive Maintenance Program that was effective and resulted
in the good prior history. The main breaker, however, was enclosed and needed no maintenance.
It was a breaker that either worked or did not work. It functioned without any problem during the
five years preceding the accident. The parties stipulated the proposed penalties would not affect
Respondent' s ability to continue in business. (Stip. No. 8)
Everything considered, I find the appropriate penalty for this serious S&S violation of the
cited standard, 30 C.F.R. § 56.1200 is $27,000.00.

Citation No. 7850488

Penalty Assessment

The evidence presented established that Respondent did not immediately contact any
MSHA personnel at the Albuquerque Field Office, the District Office in Dallas, Texas, nor the
MSHA headquarters in Arlington, Virginia Apparently, Respondent were under the impression
that as long as they believed McSherry would not die, they did not have to make inunediate
notification of the accident to MSHA. That is not the proper interpretation of the cited standard.

198

The standard requires immediate notification of an accident that causes an injury which has a
reasonable potential to cause death.
Respondent made a feeble attempt to contact MSHA by a telephone call to the
Albuquerque Field Office. They did not contact any MSHA personnel until Sunday, June 8, after
McSherry died. The MSHA investigation commenced about 3 p.m. Monday, June 9. In many
cases the violation of the regulation could be much more serious than it is under the facts in this
case. Under the facts of this case there is no showing of any potential harm by the failure to
notify MSHA immediately. Under the facts and circumstances in this case the violation in some
respects is more akin to a paper violation. Respondent showed good faith but misjudged the
requirements of the standard and misjudged the severity ofMcSherry's injury caused by the
accident. On evaluating of all the facts, I find that negligence was "moderate" rather than high. I
would affirm every other factor in the Inspector' s evaluation as set forth in Section II of the
citation. In view of all the above, including Respondent's very good history of prior citations, I
assess a penalty of $800 for this violation of 30 C.F .R. § 50. l 0.

Citation 7850489

Penalty Assessment

Within two hours of the accident, Respondent commenced his investigation of the
accident. Respondent took photographs of the entire accident scene to preserve all the associated
evidence and made it available to the inspectors. Respondent removed and replaced the main
breaker that exploded. Respondent preserved the main breaker and all the equipment and
paraphernalia associated with the accident. MSHA began the investigation on Monday, June 9.
Before writing the citation, the Inspector never questioned the reason why the breaker that
exploded was replaced within a few hours after the accident. One important reason was that
Respondent was concerned with a potential environmental hazard. When the main breaker is
inoperable, the entire SX-EW plant is down and the plant's holding dam (Dam 8) is at risk of
overflowing its acidic bleaching fluid. (Tr. 125-126, 131, 190). There is no downstream
protection for the pool at Dam 8 to prevent the acidic bleaching overflow to move into the
envirorunent and damage plant life and possible animal life. If the bleaching solution in the deep
ponds were to overflow, the acidic solution, in addition to harming the environment, would
constitute a violation of Respondent's water discharge permit issued by the state of New Mexico.
Respondent fully cooperated with MSHA in the investigation. It appears from the record
that Respondent did not intend to hinder or delay MSHA's investigation in any way.
Everything considered, including Respondent's very good prior history, Respondent' s
cooperation with MSHA in its investigation, and the need to protect against the potential harm to
the environment, I assess a penalty of $600.00 for the violation of the cited safety standard 30
C.F.R. § 5012.

199

ORDER
Citation No. 7859009 with its S&S finding is AFFIRMED. Citation Nos. 7850488 and
70850489 are MODIFIED by changing.the negligence factor form "high" to "moderate" and, as
so modified, are AFFIRMED.
Respondent, Chino Mines Company is ORDERED TO PAY a civil penalty of
$28,400.00 within 30 days of the date of this decision.

111. >±~ (!dJ;:"
-.J

~F~Cetti

Administrative Law Judge

Distribution:
Ernest Burford, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin Street
Suite 501, Dallas, TX 75202
Katherine Shand Larkin, Esq., JACKSON & KELLY, 1660 Lincoln Street, Suite 2710, Denver,

co 80264
/ek

200

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, 0 . C. 20006-3867
Teleph one No.: 202-653-5454
Telecopier No.: 202-653-5030 ·

February 21, 2002
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2000-368-M
A. C. No. 35-02479-05509
Docket No. WEST 2000-437-M
A. C. No. 35-02479-05510
Docket No. WEST 2000-446-M
A.C. No. 35-02479-05511

v.

Docket No. WEST 2000-519-M
A. C. No. 35-02479-05512
Docket No. WEST 2000-561-M
A.C. No. 35-02479-05513
Docket No. WEST 2001-76-M
A.C. No. 35-02479-05514

TIDE CREEK ROCK INCORPORATED,
Respondent

Mine: Tide Creek Rock Incorporated

DECISI ON

Appearances: Deia W. Peters, Office of the Solicitor, U.S. Department of Labor, Seattle,
Washington, for the Secretary;
Agnes Petersen, Esquire, Tide Creek Rock, Incorporated, Deer Island, Oregon, for
the Respondent.

Befor e:

J udge Bar bour

These cases are before me on petitions for the assessment of civil penalties filed by the
Secretary of Labor on behalf of her Mine Safety and Health Administration (MSHA) against Tide
Creek Rock, Inc. (Tide Creek), pursuant to sections 105, 110 and 113 of the Federal Mine Safety
and Health Act of 1977 (30 U.S.C. §§§ 815, 820 and 823 (the Act or the Mine Act)). The
petitions allege 24 violations of the Secretary' s mandatory safety and health standards for surface
metal and nonmetal mines and they seek the assessment of civil penalties that total $2,492. In
201

addition, six of the citations contain find~ngs that the alleged violations were significant and
significant contributions to mine safety hazards (S&S violations).
Tide Creek challenges the Secretary's jurisdiction and alternatively argues that in many
instances the allegations of violation and the S&S findings are invalid. Further, Tide Creek
asserts that several of the inspectors' findings regarding the gravity of the alleged violations and
the company's negligence are inaccurate. Finally, it contends the amount of any penalties
assessed will affect adversely its ability to continue in business.
The cases were consolidated, and a hearing was held in Portland, Oregon. The parties
presented testimony and documentary evidence. They also filed post-hearing briefs. The issues
are whether the Secretary has jurisdiction; whether the violations occurred as alleged; whether
the inspectors' S&S and other findings are valid; and the amount of any civil penalties that must
be assessed for the violations in light of the statutory civil penalty criteria (30 U.S.C. § 820(i)).

THE TIDE CREEK MINE
AND THE MINE'S INSPECTION IDSTORY
The Tide Creek Mine is a small, crushed stone operation located in Columbia County,
Oregon. The mine is operated by Tide Creek Rock, fuc., a company owned and run by the
Petersen family. Presently, three persons work intermittently at the mine, including John
Petersen and his nephew, Robert Petersen. John Petersen directs the day-to-day functioning of
the facility.
The mine includes a pit, a haul road, a crusher, a caterpillar tractor and three caterpillar
loaders. At the mine stone is excavated, crushed to size, and stockpiled. The crushed stone is
trucked from the mine. Among other things, the stone is used in road construction.

JURISDICTION
The facility has been inspected by MSHA for several years, and it has been the site of
previous violations whose validity has been litigated before the Commission (See Tide Creek
Rock, Inc., 18 FMSHRC 390 (March 25, 1994) (ALJ Manning); John Petersen, d/bla/ Tide
Creek Rock Products, 12 FMSHRC 2241(December1982) (ALJ Koutras); John Petersen dlbla/
Tide Creek Rock Products, 11 FMSHRC 3404 (November 1980) (ALJ Vail)). Despite the fact
that in eac~ instance, jurisdiction has been found to exis~ the company continues to contend it is
not subject to the Act.
The Mine Act provides that "each coal or other mine, the products of which enter
commerce, or the operations or products of which affect commerce, and each operator of such a
mine, and every miner in such a mine shall be subject to the provisions of [the Act]" (30

202

U.S.C.§803). Although Tide Creek asserts that the Secretary failed to elicit testimony on the
company's affect on interstate commerce (Resp. Br. 5), the record fully supports finding that
Tide Creek's products enter commerce and that its operations affect commerce.
At trial, John Petersen stated that rock extracted at the mine sometimes is used as a base
in the construction of public roads (Tr. 256). An operator whose product is used in the
construction of public roads plays an inevitable part in interstate transportation and thus in
interstate commerce (See Soothsay Construciion Co., 6 FMSHRC 174, 176 (January 1984) (ALJ
Carlson)). John Petersen also stated that the front-end loaders used at the mine were
manufactured in Illinois. It has been held that the use of equipment manufactured in another
state is an indicia of interstate commerce (U.S. v. Dye Construction Co., 510 F.2d 17, 83 (101h
Cir. 1975); Mechanicsville Concrete, 16 FMSHRC 1444, 1446047 (July 1994) (ALJ Amchan)).
It is true that Tide Creek is small and most of its product is sold locally. However, even under
these circumstances, it has been found that interstate commerce is affected because of the
cumulative effect small scale operations can have in interstate pricing and demand (See U.S. v.
Lake, 985 F. 2d 265 (61h Cir. 1993)). Therefore, the mine and its operator come within the
jurisdiction of the Act. 1

ALLEGED VIOLATIONS WITH
S&S ALLEGATIONS
The Commission has stated that if, based upon the particular facts surrounding a
violation, there exists a reasonable likelihood that a hazard contributed to will result in an injury
or illness of a reasonably serious nature, the violation is S&S (Cement Div. Nat. Gypsum Co., 3
FMSHRC 822,825 (April 1981 )); (see also, Buck Creek Coal Co., Inc., 17 FMSHRC 8, 13
(January 1995)). In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), the Commission
outlined the elements of proof for an S&S determination when it stated:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary

1

Tide Creek contends if its facility comes within the Act, res judicata bars consideration
of the allegations in Citation No. 7978130 (Docket No. West 2000-159). Tide Creek's argument
appears to be that Citation No. 7978130 is "basically the same" as another citation that has
become "final"; in other words, that Citation No. 7978130 duplicates a previous citation (Resp.
Br. 9). 1)de Creek's argument fails. While I would vacate any citation at issue that was shown
to duplicate a previously assessed and paid citation, I cannot do so on the basis of a mere
assertion. Tide Creek did not introduce into evidence the citation it claims was duplicated.
Accordingly, there is nothing in the record which I can compare to Citation No. 7978130.
Further, to the extent that Tide Creek is arguing that the same allegations have been alleged
previously-this argument also fails. The Secretary, may and frequently does, cite repeated
violations of repeated violative conditions.
203

... must prove: ( 1) the underlying violation of a. mandatory safety
standard; (2) a discrete safety hazard - that is, a measure of
danger to safety- contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
The determination of whether a violation is S&S is made in the context of continuing
mining operations.

DOCKET NO. 2000-561-M

Citation No.

Date

30 C.F.R.§

7978438

3/29/2000

56.9301

The citation alleges that the lower dump area of the mine was not provided with a device
to stop mobile equipment from traveling over the edge and overturning. The dump area was
composed of loose rock material. Section 56.9301 states: "berms ... or other impeding devices
shall be provided at dumpling locations where there is a hazard of over-travel or overturning."

I conclude the violation existed as charged. The inspector testified that the lower dump
area contained an embankment that was approximately 60-feet long and 20- to 25-feet high.
Haulage trucks operated on the embankment and there was nothing along the edge of the
embankment to hinder a haulage truck from going over the edge (tr. 422). Tide Creek argues
that restraints in the form of rock berms were in place around the area when dumping occurred
but that they were removed and the rock was crushed when dumping was finished (Resp. Br. 43).
While that may have been the case, the inspector's undisputed testimony established that no
berms where in place when he observed the embankment. Further, the inspector testified,
without dispute, that he saw tire tracks leading to the very edge of the embankment (Tr. 427).
With no berms to warn a driver that his or her truck was at the edge of the embankment, the truck
was in danger of dropping 20 to 25 feet and overturning.
The violation was S&S and serious. Berms partially restrain a vehicle. They also alert a
driver how close the vehicle is to the edge of the dumping area. With no restraints or warnings at
the edge of the 20- to 25-foot drop, it was reasonably likely that a driver would move too close
and travel _over the edge of the embankment. This was especially so because the dumping area
was composed of loose material which was more likely to give way. The inspector testified that
the haulage truck weighed between 30 and 40 tons (Tr. 428). He also testified that miners were
working in the area below the embankment. If the haulage truck fell off the embankment, not
only was the driver of the truck reasonably likely to suffer a serious injury, but any miner
working below who was bit by the falling truck or its load was likely to be ki11ed.
204

In addition, the lack of berms in the dumping area and the fact that the truck was
operating on the embankment were visually obvious. If Tide Creek management officials had
exercised the care required of them, then the berms or restraints would have been present; or if
they had been removed, then the embankment would have been made "off-limits" until the berms
were replaced. Tide Creek's lack of care resulted in the violation and establishes the company's
negligence.

Citation No.

Date

30 C.F.R.§

7978439

312912000

56.9300(b)

The citation alleges that the berms along the mine's main haulage road were not of the
mid-axle height of the largest vehicle using the road. Section 56.9300(b) requires "[b]erms or
guardrails ... [to] be at least mid-axle height of the largest self-propelled mobile equipment
which usually travels the roadway." The citation further alleges that the haulage road, which had
a three percent grade, ran from the plant toward the pit area and that for about 30 feet-the berms
ranged in height from zero to 12 inches. There were drop-offs of up to 10 feet along the road.
The mid-axle height of the largest haulage truck traveling the road was 18 inches. When
materials were transported from the pit, the road was used several times a day.
I conclude, the violation existed as charged. Tide Creek did not dispute the height of the
berms ranged from zero to 12 inches and that this was less than the mid-axle height of the largest
vehicle that traveled the road. In fact, Robert Petersen who regularly traveled the road, conceded
the berms were inadequate along the cited portion (Tr. 496).
Rather than challenge the violative conditions, Tide Creek argued that the berms along
the road were inadequate to help ensure proper drainage. Tide Creek asserted that the Secretary
bore the burden of proving that the cited area was not needed for drainage and that she failed to
do so (Resp. Br. 34).
It may be true that the berms were inadequate in order to provide proper drainage.
Indeed, the inspector testified it was likely (Tr. 451). However, the standard makes no exception
for drainage. If Tide Creek believed it was safer to eliminate or to lower the berms in order to
facilitate drainage, its recourse was not to violate the standard but rather to seek its modification
pursuant to section lOl(c) of the Act (30 U.S.C. §81 l(c)). It did not do so.
The violation was S&S and serious. The road had a three-percent grade. The road was
regularly traveled. During rains (which happen frequently in Oregon) the grade and the road's
slippery condition could cause a vehicle to slip through the inadequate berms and off the road
(Tr. 438-439). In the context of continuing mining I find that such an accident was reasonably
likely and that a drop of up to 10 feet could be expected to cause a serious or critical injury to the
driver of the affected vehicle.
205

Finally, Tide Creek failed to meet the standard of care required. It chose not to comply
and in so doing it caused the violation.

DOCKET NO. WEST 2000-159-M
Citation No.
7978123

30 C.F.R.§

9/27/1999

56.14107(a)

The citation alleges that the counterbalance on the right side of a shaker screen was not
guarded to prevent employee contact. The standard requires "[m]oving machine parts ... [to] be
guarded to protect persons from contacting gears, sprockets, chains . . . [various specified types
of] pulleys, flywheels, couplings, shafts, fan blades, and ~imilar moving parts that can cause
injury."
Section 56.14107(b) exempts from guarding "exposed moving parts that are at least s~ven
feet away from walking or working surfaces." Tide Creek does not argue about the lack of
guarding, but rather contends that the counterbalance was more than seven feet from any working
surface or walkway and that the Secretary failed to show otherwise (Resp. Br. 13). I find,
however, that the Secretary proved the violation.
At trial, the inspector credibly testified that although the counterbalance was guarded on
its front, top and back sides, it was not guarded on its right side and that there was room for a
miner to gain access to the moving counterbalance while the screen was in operation. He also
testified that the counterbalance was approximately 30-inches above the walkway that ran along
the right side of the shaker and that miners were required to be in the area of the screen when the
shaker was in operation (Tr. 134). Despite the company's assertions, the record contains no
convincing evidence to the contrary.

I also find that the violation was S&S and serious. The lack of a guard on one side of the
counterbalance was reasonably likely to cause death or serious injury as mining continued. The
guarding of moving machine parts is among the most important of the Act's safety requirements.
Numerous serious injuries and fatalities have occurred when miners became caught in unguarded
parts. Here, there was a walkway adjacent to the unguarded machine part. While mining was in
progress, miners occasionally were required to be in the vicinity of the screen. The unguarded
area was of a size {approximately 29 inches by 30 inches) and location {approximately 30-inches
above the walkway) that if a miner slipped when the walkway was wet, or otherwise tripped and
fell, and reached toward the counterbalance, the miner could be seriously injured by the moving
machinery.
The lack of a guard was visually obvious. The presence of guards on the top, front and
back of the counterbalance indicated that Tide Creek was aware of the gliarding requirement.
206

Had Tide Creek exercise the care required, a guard would have been present. It did not, and in
failing to guard the part, the company exhibited its negligence.

Citation No.

Date

30 C.F.R.§

7978126

9/27/1999

56.14103(b)

The citation alleges that the two top door windows and the left front window on a frontend loader were broken and sharp edges were exposed. Section 56.14103(b) states:

If damaged windows obscure visibility necessary for safe
operation, or create a hazard to the equipment operator, the
windows shall be replaced or removed. Damaged windows shall
be replaced if absence of a window would expose the equipment
operator to hazardous environmental conditions which would
affect the ability of the equipment operator to safely operate the
equipment.
Tide Creek concedes that the windows were broken but contends that they did not create
a hazard because Robert Petersen, the only person operating the equipment, was aware of their
condition. h1 addition, he kept the door open so that visibility through the door windows was not
obscured (Resp. Br. 20). Despite the company's argument, I conclude the broken windows were
hazards and that they should have been replaced or removed.
No one takes issue with the fact that the windows were damaged, and I find that the
inspector accurately described their state. The inspector believed that at some point Robert
Petersen had to clean the windows, and in so doing, he could cut his hand on the sharp edges of
the glass (Tr. 166-167). The inspector's testimony established that the operator of the loader was
subject to the possibility of a cut hand. This established the presence of a safety hazard, and the
broken windows, combined with the hazard they created, established the violation.
Although the Secretary proved the violation, I agree with Tide Creek that she failed to
prove the violation was S&S. The inspector based his S&S finding on the fact that when it
rained and the ground became muddy, the loader's tires tended to "kick up" mud on the windows.
This meant that the windows had to be cleaned often, which in tum made it reasonably likely that
Robert Petersen would cut his hand (Tr. 166-167). However, Robert Petersen testified that the
windows in the doors almost never were cleaned because when he used the loader he always tied
back the doors and that the other cited window (the left front window) also rarely had to be
washed. Further, he stated that on the occasions when he washed the windows, he used a
·
squeegee and he did not touch the windows (Tr. 295-296).
Robert Petersen's testimony was not contradicted. Therefore, I conclude that the lack of a
207

need for regular cleaning and the use of a squeegee meant that ~s mining continued it was
unlikely Petersen' s hands would come in contact witP. the broken windows. In addition, because
there was only a remote chance of injury to one person, the violation was not serious.
The condition of the windows was obvious, and if Tide Creek had exercised the care
required then the windows would have been removed or replaced. Therefore, the company was
negligent.

Citation No.
7978130

30 C.F.R.§
9/28/99

56.14132(b)

The citation alleges that the back-up alarm on a haulage truck was not audible above the
surrounding noise level. Sec~ion 56. l 4132(b)(2) provides that an audible alarm on self-propelled
mobile equipment, "shall be audible above the surrounding noise level." The inspector testified
that at approximately 9:47 a.m. on September 28, 1999, he was in the area where the rock crusher
is located. As he looked around, he saw a haulage truck begin to back-up. The truck was used to
haul material from the storage bunker to the crusher. The inspector did not hear the truck's backup alarm (a bell) sound when the truck began to move (Tr. 186), and at ahnost the same time, a
front-end loader backed into the middle of the truck.
The inspector's first-hand testimony was not refuted. The company did not produce any
witness who testified the alann was heard. Nor did it produce any witness who countered the
inspector's testimony that a front-end loader backed into the middle of the truck. Given the fact
the inspector could not hear the alarm and the fact that the loader backed into the truck, the
conclusion that the alarm was not audible above the surrounding noise level was reasonable, is
credited, and establishes the violation (Tr. 186, 188).
The inspector found that the violation was S&S, and he was right. Audible back-up
alarms are required because the visibility of mobile equipment operators frequently is restricted
when equipment moves in reverse. Also, miners working in the vicinity of mobile equipment
may be more intent on the job they are doing than on equipment moving near them. The sound
of an alarm warns those working nearby or traveling behind a moving vehicle.

Here, the haulage truck was operating in an area where other mechanized moving
equipment was present. The fact that a front-end loader backed into the moving haulage truck
does not iri itself establish the violation as the actual cause of the accident, but it is the type of
accident that is reasonably likely to occur when a back-up alarm cannot be heard. Moreover,
when a haulage truck strikes another piece of equipment or strikes a miner working or traveling
behind the truck, it is reasonable to expect the operator of the other equipment or the miner will
be seriously injured. Therefore, in addition to being S&S, the violation was serious.
208

The violation should have been detected and correctetj. by Tide Creek. It was audibly
obvious. I conclude the violation existed because Tide Creek failed to exercise the care required.

30 C.F.R§

Citation No.
7978131

9/28/99

56.14107(a)

The citation alleges that the v-belt drives and the cooling fan on a haulage truck (the same
truck that lacked the audible backup alann) were not guarded in that the front hood of the truck
was missing. The inspector found the conditions to constitute an S&S violation. As noted
previously, section 56.14107(a) requires moving machine parts, that can cause injury, to be
guarded. Tide Creek concedes the hood was missing (John Petersen testified that it was lost in a
flood (Tr. 361)), but argues that the inspector's S&S finding was erroneous. It was not
reasonably likely that anyone would be injured because few miners worked around the truck; the
hood had to be removed or raised in any event to change the oil; and no one ever had been
injured changing the oil (Resp. Br. 31; Tr. 363-364).
I conclude, however, that the inspector's findings should stand. The hood had to be
raised or removed to change the oil, which does not negate the fact that a person could slip or trip
or loose his or her balance and catch a hand or an arm in the pinch points of the v-belts or be cut
by the fan. According to John Petersen, the only person around the truck was the driver (Tr.
361). Yet, John Petersen also testified that when the truck was idling the driver occasionally
checked the oil (Tr. 361-362). When the truck was idling, the v-belts and fan were moving.
Thus, the driver was in the immediate vicinity of the pinch points and the fan when he checked
the oil. The lack of a hood means that the driver was subject to the danger of slipping, tripping
or otherwise inadvertently coming in contact with the v-belts' pinch points or with the fan's
blades. Nothing was present to prevent such contact. An accident easily could have happened
because, as the citation makes clear, the pinch points of the v-belts and the blades of the fan were
within reach.
The standard is designed to guard against just such an inadvertent accident. As mining
continued and the truck continued to be operated, I conclude an accident was reasonably likely to
occur. Moreover, anyone entangled in a pinch point or hit by a fan blade could expect to suffer
the loss of a finger and/or a severe cut. Thus, the violation was both S&S and serious.

In addition, Tide Creek was negligent. The fact that the hood was missing was visually
obvious,. and was known to John Petersen (Tr. 361). If Tide Creek had exercised the care
required, the violation would not have existed.

209

omER ALLEGED VIOLATIONS
DOCKET NO. WEST 368~M

Citation No.

Date

30 C.F.R.§

7973902

9/28/99

56.12008

The citation alleges that a power cable entering a junction box on the back side of the
load-out bin was not provided with a proper fitting where it entered the box. Section 56.12008
requires power wires to enter the metal frames of electrical compartments "only through proper
fittings." The inspector testified that he observed the junction box and found that an·oversized
bushing had been used where the power cable entered the box. In addition, the inner conductor
wires of the cable were exposed. On the day of the inspection the load-out bin was not in
operation. In fact, it had not been operating for the past two to three weeks.
I conclude the violation existed as charged. Tide Creek presented no evidence refuting
the inspector's first-hand observation that the bushing used where the cable entered the box was
oversized and thus improper (Tr. 40-42). Indeed, John Petersen conceded that the power cable
was not provided with proper fitting (Tt. 61).
The inspector found that the violation was unlikely to cause an injury and I agree. The
junction box was located in an infrequently traveled area of the mine, and miners rarely came in
contact with it. In addition, although the load-out bin was not out of service at the time the
violation occurred, the bin was infrequently operated. Thus, the possibility of an injury, caused
by the violation, was very remote.
Tide Creek argues that there is no proof of its negligence because the junction box is far
from usual work areas and no one was aware of the condition of the fitting (Resp. Br. 44). I
reject this contention. Regardless of the location of the junction box, Tide Creek had a duty to
ensure it was in proper working order. Equipment cannot be neglected because it is located in
places that are only occasionally visited. The junction box had to be inspected by Tide Creek,
and the company should have known of its condition. The violation was due to the company's
failure to exercise the care required.

DOCKET NO. WEST 2000-446-M

Citation No.

Date

30 U,S.C.§

7973999

1/19/00

814(b)

The citation alleges that Tide Creek allowed a front-end loader to be used even though it
210

had been removed from service by an order issued pursuant to section 104(b) of the Act (30
U.S.C. § 814(b)). In response to Tide Creek's pending motion to dismiss, counsel for the
Secretary explained that the citation was vacated prior to the hearing and that the alleged
violation of the Act should not have been assessed (Tr. 16-17). Therefore, I advised counsels
that I would grant the motion (Tr. 17).

DOCKET NO. WEST 2000-437-M

Citation No.

Date

30 C.F.R.§

7978127

1127/00

56.14101(a)(3)

The citation alleges that the front brakes on a front-end loader were not working because
the air lines to the front brakes cams were disconnected. However, the rear brakes were
operable. Section 56.1410l(a)(3) requires that "[a]ll braking systems installed on equipment ...
be maintained in functional condition."
Tide Creek did not contest the existence of the cited condition. In fact, John Petersen
admitted that the front brakes air lines were disconnected (Tr. 97-98). Petersen thought the
company had no choice but to disconnect the air lines because when the ground conditions were
muddy, the front brakes continually clogged and locked. In his opinion, the only way to ensure
that the back brakes would continue to work was to disable the front brakes (Tr. 97-98, 100).
I conclude that the violation existed as charged. The testimony established that the front
brakes were not functional. Tide Creek asserted that disabling the front brakes did not create a
hazard because the loader was used on flat land 99 percent of the time and the back brakes alone
were sufficient to stop the equipment (Tr. 111). However, the assertion was confounded by the
testimony of Robert Petersen, who admitted that the brakes did not work at their full capacity as
he brought the loader down a hill on the day the citation was issued (Tr. 112). The record also
reflects that the loader was used on a hill on other days, too (Id.). Even if these instances
represent only one percent of the loader's use, they nonetheless establish the seriousness of the
violation. An accident easily could have occurred as the result of using the loader on a hill when
the front brakes were not functioning. The driver of the loader could have been injured
seriously.2

2

As I have noted previously, to the extent that Tide Creek believed maintaining the front
brakes in functional condition diminished the safety of its miners, its recourse lay in petitioning
the Secretary of Labor to modify application of the standard, not in unilaterally disconnecting the
front brake air lines (30 U.S.C.§ 81 l(c)).
211

Moreover, the violation was due to Tide Creek's neglig~nce. It is clear from the
testimony that John Petersen was aware of the condition of the brake lines, yet he did nothing
about it. His.failure represented a lack of care that was required of him.
Tide Creek was given until the following day to reconnect the brake lines and to comply
with section 56.1410l(a)(3). When it failed to do so the Secretary issued an order removing the
loader from service until the front brakes were operable. As a result of the order, the Secretary
charged that Tide Creek failed to make a good faith abatement effort. Tide Creek, on the other
hand, argued that due to a family illness it W<:tS unable to abate in a timely manner (Tr. 96, I 00).
At that time John Petersen's mother-in-law, who lived in the Petersen's home near the mine,
required a great deal of on-site assistance and attention due to a stoke and a broken hip.
I conclude the company established good cause for its failure to timely abate the citation.
The company is small and family oriented. The testimony of John Petersen, the statements of
John Petersen's counsel and wife, Agnes Petersen, and the testimony of the Petersens' daughter,
Mary Ann Anderson - established that at the time of the violation the illness of John Petersen's
mother-in-law was causing the family a great deal of stress. Frequent trips to the hospital for
medical attention, disrupted not only the Petersen's family life but also the conduct of their
business.3 Had it not been for the illness, I conclude the condition of the brake lines would have
been attended to within the time required. As it were, the requirements of the citation became
..lost in the shuffle" of the Petersen's then more immediate worries and concerns.

DOCKET NO. WEST 2000-561-M
Citation No.

Date

30 C.F.R..§

7973901

9/27/99

56.11001

The citation alleges that a safe means of access was not provided on the path to the
crusher control platform. The traveled path was composed of loose, unconsolidated material and
uneven ground. Section 56.11001, requires ·"a safe means to access [to] be provided and
maintained to all working places."
I conclude the Secretary proved the violation. First, the crusher control platfonn was the
place where the controls for the crusher were located. The area had to be visited from time to
time. Thus, the platform was a working place and the path was the means by which miners
accessed the platform. The inspector testified that the path, which at one point narrowed to 12
inches, no; only was loosely composed, but also dropped to a 14-inch deep pool of water on one
side while on the other side there was a low, overhanging metal piece. There was no handrail
along the path (Tr. 373-374).

3

Some of the trips were necessitated by sudden medical emergencies.

212

The nature of the path; the drop to the water on one side; and the overhanging metal on
the other, made the path hazardous--especially after a rain when the danger of slipping
increased. John Petersen sometimes used the path and he testified he has "two bad knees" and
only one toe on one of his feet (Tr. 95). These conditions, which made him more prone to
slipping and falling than a miner without similar disabilities, heightened the danger. I conclude
that any person traveling the path, but most especially John Petersen, easily could have tripped or
slipped and fallen into the pool of water or could have struck the overhanging metal. Access to
the platform was not safe. The violation was serious.
I also conclude that Tide Creek was negligent. The nature of the path and the hazards
associated with it were visually obvious. Due care required the path be made safe. Tide Creek
argues that if, in fact, it was negligent-its negligence was diminished by the fact that prior
MSHA inspectors did not previously cite the company for failing to provide safe access to the
control platform. I agree. Tide Creek's assertion that it had not been cited in the past, was not
refuted by the Secretary. While the lack of a prior citation does not relieve Tide Creek of
responsibility for the violation, it somewhat lessens Tide Creek's lack of care.

Citation No.

Date

30 C.F.R.§

7973904

9/28/99

56.18010

The citation alleges that no individuals at the mine site were currently trained in first aid.
Section 56.18010 provides in part that"(a]n individual capable of providing first aid shall be
available on all shifts."
I conclude the Secretary established the violation. The inspector testified that he asked
John Petersen whether someone had been trained in first aid and that Petersen responded "yes"but could not say who it was (Tr. 396). This testimony was not refuted by Tide Creek, and I find
the conversation happened as described. I also find it reasonable to infer from the conversation
that a currently trained person was not available on that shift. The facility was small. Very few
persons worked at the mine. John Petersen operated the mine. Had a currently trained person
been available, John Petersen surely would have known who it was.

In addition, I find that the violation was serious. When accidents happen, rapid,
knowledgeable, first aid can minimize debilitating consequences and can save lives. Without the
presence of a currently trained person there was a greatly reduced chance an injured miner would
receive timely help. The failure to ensure the presence of such a person was far more than a
technical error, it was a violation that could have cost lives.

I further find that Tide Creek was negligent. Had the company exercised the care
required, a currently trained person would have been available.
213

Citation No.

Date

30 C.F:R.§

7973905

9/28/99

56.5050

The citation alleges that the miner who was working at the jaw feeder was exposed to
noise levels in excess of those allowed by the standard. Section 56.5050(a) sets forth pennissible
levels of exposure and section 56.5050(b) provides that when a pennissible level is exce~ded,
feasible administrative or engineering controls shall be implemented by the operator.
The inspector testified that Robert Petersen was the miner who was tested for exposure to
noise and that the dosimeter affixed to Petersen for an eight-hour shift measured an excessive
noise level (Tr. 398). However, as Tide Creek accurately notes, evidence of exposure to an
excessive noise level does not of itself establish a violation of the regulation. In Callanan
Industries, Inc., 5 FMSHRC 1900,1909 (November 1983), the Commission enumerated the
elements the Secretary must prove to establish a violation of section 56.5050. They are:
1. Sufficient credible evidence of a miner's exposure to noise

levels in excess of the limits specified in the standard;
2. Sufficient credible evidence of a technologicalJy achievable
engineering control that could be applied to the noise source;
3. Sufficient credible evidence of the reduction in the noise level
that would be obtained through implementation of the
engineering control;

4. Sufficient credible evidence supporting a reasoned estimate of
the expected economic costs of the implementation of the
control; and
5. A reasoned demonstration that in view of elements 1- 4..., the
costs of the control is not wholly out of proportion to the
expected benefits.
The Secretary failed to meet all of the requirements of Callanan. The Secretary did not
address whether there were engineering (or administrative) controls that could be applied to the
source of the noise to achieve the required reduction and, if so, the costs and ben~fits of the
controls. Therefore, I find the Secretary did not prove the alleged violation.

Citation No.

Date

30 C.F.R.§

7978137

9129199

50.30

214

The citation alleges that a copy of the quarterly employment and production report was
not available at the mine for review by the inspector. Section 50.30, requires an operator to
"maintain a copy of [each quarterly employment and production report] . . . at the mine office
closest to the mine for five years."
The testimony focused on the company's failure to have the reports available for
inspection. The inspector stated that when he requested the reports from the Petersens' daughter,
Mary Ann Anderson, who told the inspector the reports were at the family's home, but she was
not sure where (Tr. 410). She stated she would "have to look around the house to see if she
could find (them]" (Tr. 412). The testimony was not controverted.
The standard requires the company to maintain copies of the reports at the mine office.
Tide Creek asserted throughout the hearing that its effective mine office was the Petersen's
nearby home. Mrs. Andersen, of whom the request was made, was acting on behalf of the
company. Since she could not produce the reports upon request, they were not "available" where
and when the regulation requires, and the regulation was violated.

I agree with the inspector that this was not a serious violation. The inspector described it
as a "paperwork violation" (Tr. 413). I also agree that the company's negligence was low. As
Mrs. Anderson told the inspector, the illness of Mrs. Petersen's mother disrupted the household
and the family's management of its business, and I find that this mitigated the company's lack of
care (Tr. 412).

DOCKET NO. WEST 2000-519-M

Citation No.
7978122

30 C.F.R.§
9127199

56. l 8002(b)

The citation alleges Tide Creek had no records of examinations of working places.
Section 56.18002(a) requires each working place to be examined once each shift. Section
56.18002(b) requires the records of the on-shift examinations to be kept for one year and be
made available to the inspector on request.
I conclude that the violation existed as charged. The inspector testified without
contradiction that when he requested the records, he was told by John Petersen that the records
were not at the workplace (Tr. 128). The standard requires the records to be produced when the
inspector asks. They were not, and the standard was violated. The violation was not serious,
however, in that the records later were found.
Tide Creek asserts that John Petersen is dependent upon others to handle his paperwork,
215

particularly his wife, who could not work from August 1999 un.til the late Swnmer of 2000. The
company also. asserts that Robert Petersen, not John, was the keeper of the records (Resp. Br. 57).
These arguments have no bearing on the existence of the violation, but they impact the
negligence of the company. As previously noted, the request to see the records came at a time
when the Petersen household was disrupted by the illness of Mrs. Petersen's mother. The
Petersens were distracted and they could not devote their full attention to their business. While it
is true that they then did· not exhibit the care required of them, their lack of care was mitigated.

Citation No.

Date

30 C.F.R.§

7978124

9127199

56.14107(a)

The citation alleges that the belt conveyor's self cleaning tail pulley, which was located
eight inches above ground level and between the frame of the jaw crusher, was not guarded to
prevent contact.
The inspector testified that the fins on the pulley were accessible to miners working or
traveling near the pulley because the fins were not more than seven feet from a travel-way or
working place (Tr. 142). Tide Creek argues that there is nothing in the standard regarding the
distance a moving machine part must be from a travel-way or work place and therefore the
citation should be vacated. It also argues, that in any event, the tail pulley was more than seven
feet from a walkway or workplace as evidenced by its exhibits (Resp. Br. 58).
I find that the violation existed as charged. Tide Creek did not challenge the inspector's
testimony that a physical guard did not separate the tail pulley from the surrounding area. Nor
did it challenge his assertion that the fins on the pulley could cause injury to any miner who
contacted them (See Tr. 143-144). As I noted previously, section 56.14107(b) recognizes that
moving machine parts can be guarded by distance by exempting physical guards where "exposed
moving parts are at least seven feet away from walking or working surfaces.,, The inspector
testified that the pulley was less than seven feet from the ground (Tr. 142) and that "a person
could walk right up to the side of the tail pulley" (Tr. 145). He believed that because the pulley
was located between the frame of the jaw crusher, access to the pulley, while possible, was not
easy (Id.).
There is no testimony in the record controverting the inspector's contention that the
physically _unguarded tail pulley could be accessed by a person who walked up to it, and I find
that the unguarded pulley was within seven feet of a walking surface, and that a guard was
required.
There also is no testimony controverting the inspector's opinion that the location of the
tail pulley meant that it was not likely to be touched by mi:ners (Tr. 145). Therefore, I find that
216

although a fatality easily could have resulted if a miner was C<;lught in the pulley, the relatively
inaccessible location of the pulley meant that the chance an accident would happen was remote
and the violation was not serious.
Finally, the inspector testified the relatively inaccessible location of the tail pulley
mitigated Tide Creek's negligence (Tr. 147). Again, I agree and conclude that the violation was
not caused by an undue lack of care but rather by the company's mistaken, but good faith belief
that because of the pu11ey's location, physical guarding was not required.

Citation No.

Date

30 C.F.R.§

7978125

9127199

56.12032

The citation alleges the cover plate was missing on the 480-volt electrical termination box
for the drive motor of the shaker screen. Section 56.12032, requires that "cover plates on
electrical equipment and junction boxes ... be kept in place at all times except during testing or
repairs." John Petersen admitted that the plate was not in place (Tr. 330). No testing or repair of
the equipment was in progress. Therefore, I conclude the company violated the standard.
Tide Creek asserts that this violation was not hazardous. It argues that because the
crusher's electrical system was grounded, there was no danger that anyone would be shocked
(Resp. Br. 61). I agree that the violation was not serious, but for reasons other than those
advanced by the company. First, the fact that the crusher's electrical system was grounded did
not necessarily diminish the chance that someone would be injured due to the violation. Tide
Creek did not establish the efficacy of the grounding system. John Petersen stated at trial that the
company had tested the grounding system on several occasions. However, when he was asked to
produce the test reports, the most current record he could find was dated 1997. There is no way
to determine from a 1997 test how safe the grounding system was in September 1999.
Moreover, the lack of a cover plate meant that a person inadvertently could contact wires
inside the termination box. If the insulation on the wires was defective or if the leads were
exposed, a person could have been seriously injured or worse. However, the Secretary did not
establish that the insulation on the wires inside the box was faulty, nor did she offer testimony
regarding otherwise exposed electrical components inside the box. Further, very few miners
came near the box during the course of their work. For these reasons I find that the violation
presented little chance of injury.
John Petersen explained that the cover plate was affixed to the box by a single .bolt and
that he was unaware the bolt had become dislodged. He also testified that the wires inside the
box did not short-out when the cover plate was off, and he therefore was not alerted that the
cover plate was missing (Tr. 324-325). I find, however, that the violation was the result of the
217

company's negligence. John Petersen knew the cover plate wa~ attached by one bolt. Since
failure of the bolt meant the plate's loss, the exercise of due care required the bolt and plate to be
checked periodically. Tide Creek did not check. Rather, it apparently relied on a short circuit of
the wires inside the box to signal the lack of a cover plate. This was inadequate care.

Citation No.

Date

30C.F.R.§

7978129

9/28/99

56.14101(a)(3)

The citation alleges that the service brakes on the rear axle of a haulage truck were not
functional. Half of the right rear brake cam was missing and both back brakes were
disconnected. The truck was used to haul rock from the crushing plant area to the stockpile area.
As has been noted, section 56.1410l(a)(3) requires all of the braking systems on self-propelled
mobile equipment to be maintained in functional condition.
·
I find the violation existed as charged. John Petersen indicated that he was aware the rear
service brakes were disconnected (Tr. 176). Because the brakes were not connected, they could
not function (Tr. 176). The citation states the front service brakes alone could hold the truck
with a typical load, however, the standard requires all brakes to be maintained in functional
condition and the fact that the front brakes were fully functional does not vitiate the violation.
This was a serious violation. John Petersen testified the rear brakes were disconnected
because he was afraid mud would enter the braking mechanisms and cause the brakes to lock (Tr.
176-177). However, disabling the rear brakes meant that if the front brakes malfunctioned, then
no service brakes were available to stop the truck. This seriously endangered both thtf driver of
the truck and any miners in its path.
I conclude, as well, that Tide Creek was negligent. John Petersen knew that the brakes
were disconnected (Tr. 176). As I have stated previously, if he believed compliance with the
standard actually diminished safety, John Petersen should have filed a petition for its
modification with the Secretary (30 U.S.C. § 81 l(c)).

Citation No.

Date

30 C.F.R.§

7978132

9128/99

56.14101(a)(2)

The citation was issued because the parking brakes on a haulage truck were not capable
of holding the truck without a load on the elevated haulage road leading to the feeder. The truck
was used to haul material from the rock crushing plant to the feeder. The inspector testified he
tested the parking brakes of the truck when the truck was unloaded and found that the brakes
would not hold the truck (Tr. 215). He also testified that he believed the truck regularly traveled
218

the road uphill to the feeder, although he never actually observed the loaded truck make the trip
(Tr. 215).
Section 56.14101(a)(2) requites parking brakes on self-propelled mobile equipment to be
able to hold the equipment with its typical load on the maximum grade it travels. I find that the
violation existed as charged. The inspector's testimony that the brakes would not hold the truck
when it was unloaded was not refuted. If the parking brakes would not hold the truck without a
load, they surely would not hold a loaded truck. Further, the inspector's testimony that the truck
traveled up the road to the feeder was not disputed. The inspector's testimony was essentially
corroborated by John Petersen who confirmed at times the truck did travel up to the feeder{Tr.
353-354).4
The inspector was not specific about where on the road the parking brakes were tested,
but it can be assumed it was on a grade since a test on level ground would have revealed nothing
about the ability of the parking brakes to hold the truck. Further, since the brakes would not hold
the truck on the grade where the test occurred, it logically follows that they would not hold the
truck on the maximum grade the truck traveled.
The inspector was concerned that if the parking brakes were set and the truck was parked
on an incline, it could roll and hit someone. He agreed, however, that the service brakes held the
truck on an incline and that this diminished the gravity of the violation (Tr. 216-217). I find the
violation was not serious. It was unlikely that the truck would have been parked on an incline.
The most likely use of the parking brakes on an incline would have been to assist in holding the
loaded truck once it stopped on the grade. Since, the service brakes alone were capable of
holding the loaded truck on a grade, I agree with the inspector that an accident was unlikely to
occur as a result of the violation.
The inspector believed correctly that Tide Creek was negligent. The defective brakes
should have been reported, and they were not (Tr. 217). Had Tide Creek meet the standard of
care required, the parking brakes would have functioned properly or the truck would have been
removed from service.

Citation No.
7978133

30 C.F.R.§
9/28/99

56.1410l(a)

The citation was issued because of air leaks in the left front brake cam and in the
air line to the right rear brake on the same truck that was the subject of the previous citation. The

4

I also note that although John Petersen at first asserted the truck was not in use, he later
said it could have been used as recently as two or three days before the inspection.
219

inspector testified that he tested the ~r lines on the truck and found that they were leaking so that
as the brakes were applied they lost some of their eff~tiveness (Tr. 221-222). Section
56.1410l(a) requires that "[a]ll braking systems ... on ... [self-propelled mobile] equipment ...
be maintained in functional condition.'' Tide Creek conceded that the air leaks existed, and in so
doing admitted the braking system on the truck was not fully functional. I find there was a
violation as charged.
The inspector explained what he feared could happen, "[I]f you were going down a hill in
the truck and you continued to loose air pressure, you would loose brakes" (Tr. 222). Still, he
stated that despite the leaks, there was sufficient air pressure to stop the truck {Tr. 223). This
greatly reduced the possibility of an accident, and I find that the gravity of the violation was less
than serious.
I further find that Tide Creek was negligent in allowing the violation to exist. Not only
should the driver of the truck.have noticed and reported that the brakes tended to fade (a sign of
leaking air lines), but the leaking air was audibly obvious {Tr. 224).

Citation No.

Date

30 C.F.R.§

7978136

9128199

56.14100(d)

The citation was issued because when the inspector asked John Petersen to see the
records of defects on self-propelled mobile equipment, Petersen did not show him any (Tr. 225).
Section 56.14100(d) requires uncorrected, safety-affecting defects on self-propelled mobile
equipment to be reported to and recorded by the operator. The standard also requires that the
records be kept at the mine or the nearest mine office and that they be made available for
inspection by the inspector. The company does not dispute that Petersen did not show the
inspector the records when the inspector asked. I find that the violation existed as charged.
The inspector did not believe this was a serious violation (Tr. 225). The failure to have
the records available for review was unlikely to result in or to contribute to a miner's injury.
However, Tide Creek was negligent in failing to produce the records. Tide Creek stated in its
brief that it has been keeping such records for years (Re~p. Br. 65). If so, it should have known
that their availability also was required.

DOCKET NO. WEST 2001-76-M

Citation No.

Date

30 C.F.R.§

7978121

9/27/99

56.12028

220

The citation alleges that the company failed to conduct yearly continuity and resistance
testing of grounding systems. Section 56.12028 requires such testing annually after grounding
systems have been installed. It also requires records of the test be made available to an inspector.
Tide Creek argues that testing was done but admits that it was not done annually (Resp. Br. 74).
(The inspector testified that the system had been tested last on March 10, 1997, (Tr. 547)). Also,
it does not dispute the fact that it had no records available to show the inspector. Therefore, I
find that a violation of the cited standard existed.
The inspector properly determined that the violation was not serious. The Secretary did
not offer any testimony to refute the company's contention that the facility never has experienced
electrical continuity problems. The fact that the mine has no history of continuity malfunctions
lessens the chance that the violation would result in an injury. (I note in passing that the
company had undertaken at least a partial test of the grounding system in June 1999 (Tr. 547),
and no problems were detected.)
With regard to the company's negligence, the inspector observed that Tide Creek had
been cited previously for a similar violation (Tr. 549). Tide Creek did not disagree, and I find
that it knew annual testing and record keeping were required. It's failure to comply was due to
its negligence.

Citation No.

Date

30 C.F.R.§

7978134

9/28/99

56.14132(a)

The citation alleges that the horn on a front-end loader did not work when tested. The
inspector testified that he asked the operator of the front-end loader to activate the horn by
pushing the horn button. The operator did as requested, and the horn did not work (Tr. 552).
Section 56.14132(a) requires manually operated horns on self-propelled mobile equipment to be
operable. The violation existed as charged.
The violation was not serious. The loader was operating in an area where few other
pieces of equipment and few other miners were present. The loader operator had unrestricted
frontal visibility. He could slow, stop, or redirect the vehicle if he saw a miner or a piece of
equipment come into the loader' s path. That the horn was not operating was unlikely to cause or
contribute to an accident.
However, the company was negligent. It was easy to determine that the horn did not
work and the violation should have been discovered during the required pre-shift examination of
the equipment. Had the company exercised the care required, the horn would have been repaired
or the loader would have been removed from service until the horn was repaired.

221

Citation No.

Date

30 C.F-.R.§

7978135

9/28/99

56.1410l(a)(2)

The citation alleges the parking brakes on the same front-end loader were incapable of
holding the loader without a load on the elevated haul road in front of the load out bunkers for
the rock crushing plant. The inspector testified he saw a miner set the front-end loader's parking
brakes on a grade. He described the grade as "a little elevated area" and he testified that the
loader had been operating in the area (Tr. 559). The brakes did not hold the loader which rolled
until it came to a level area, or until the operator applied the service brakes (Tr. 555-556).
As has been noted, the standard requires parking brakes to be able to hold self-propelled
mobile equipment with its typical load on the maximum grade it travels. fuadequate testimony
was elicited by the Secretary to support the alleged violation. There was no testimony about the
maximum gtade the front-end loader traveled, nor was there any testimony about whether or not
the bucket was loaded. While I might have been able to infer that the parking brakes could not
hold the loader on its maximum grade since they could not hold it on a slight grade, I can make
no such inference about the equipment's "typical load." There was no testimony about whether
the bucket contained a load, nor about what a "typical load" might be. The loader might have
been carrying nothing; it might have been carrying its typical load; or, it might have been
carrying more than its typical load. Since there is no way to determine from the record whether
the parking brakes were "capable of holding the equipment with its typical load", I conclude that
the Secretary did not prove the alleged violation.

ABILITY TO CONTINUE IN BUSINESS
The operator bears the burden of proof as to the effect of a civil penalty on its ability to
continue in business. fu the absence of such proof, the judge will presume that no adverse affect
will occur. Tide Creek argues that paying the proposed civil penalties will have a detrimental
affect on its ability to continue operating. Steven Brittle, a licenced CPA, appeared as a witness
for Tide Creek (Tr. 478). He has been the company's accountant for many years.

Mr. Brittle described the company as "a struggling entity attempting to achieve success"
(Tr. 478). He stated that he believes the company's continued existence is precarious, and he
described the company as being in a "survival mode" (Id.). He testified that due to diminished
sales, the company's owners continually must lend the company money to meet its payroll (Tr.
477-478). The company's income between 1994 and 1999 (the last year in which a federal ·
income taX return was filed [5]) ranged from a low of $143,788 to a high of $278,181(Tr.469).
Since 1999, the company has suffered an increasingly severe financial impact due to continually

5

The company received an extension for filing its year 2000 tax return (Tr. 469).

222

lower sales and to the intermittent nature of those sales (Tr. 4~7). As a result, the company has
no steady source of income.
The company's principle current asset is its equipment, but Mr. Brittle maintained some
of the equipment only has scrap value (Tr. 478). In his view, any additional costs to the company
will have a "very severe" impact on the company's viability and will mean that the owners will
have to put even more money of their own into the company. Mr. Brittle stated that ifthe owners
do not continue to give the company out-of-pocket subsidies, the business, "is not going to
survive (Tr. 477). However, Mr. Brittle also was of the opinion that the company might be able
to pay the assessed penalties, if payments are contingent on the company first generating a
positive revenue (Tr. 484).
The Secretary argues that Mr. Brittle's testimony is unreliable because it was based on
documents supplied by Tide Creek and because Mr. Brittle has not visited the mine in several
years. I reject these arguments. All in all, he was a persuasive and credible witness. There is
nothing remarkable in the fact that Mr. Brittle used Tide Creek's documents. CPAs usually rely
on financial information and documents furnished by their clients (See Tr. 481 ). Nor do I find
the fact that Mr. Brittle has not been to the mine in several years to detract from the credibility of
his testimony. Mr. Brittle has worked as a CPA for the company since the mid-I 970's. Among
other things, he has prepared the company's tax returns. Certainly, he is privy to the company's
financial information and informed about its fiscal situation, the topics about which he testified.
The fiscal picture of Tide Creek that emerged from Mr. Brittle's testimony is not
encouraging. He made clear that since 1999 the company's financial situation has deteriorated, a
fact underscored by John Petersen's undisputed testimony that he has cashed in his life insurance
policies to fund the company (Tr. 479). Based on his description of the company's fiscal
situation, I accept Mr. Brittle's opinion that to become financially healthy, the company must sell
more product and must do so on a regular basis-something that has yet to happen.
Therefore, I conclude Tide Creek has met its burden of proving that the civil penalties
assessed herein will have a detrimental affect on its ability to continue in business. To lessen that
affect, I will assess lower penalties than otherwise would be warranted. In addition, Tide Creek
may pay penalties on a structured basis. Structured payments should make it easier for the
company to manage the new debt the penalties represent. However, I will not implement Mr.
Brittle's suggestion that the structured payments be conditioned on increased sales. Nothing in
·
the Act warrants making payments dependent on future revenue.

As stated at the beginning of this decision, the company is small in size.

223

GOOD FAITH ABATEMENT
There were four instances in which the Secretary issued orders to the company for failing
to abate within the time as originally set. In one instance, Citation No. 7978127 (Docket No.
WEST 2000-437-M), I have found that extenuating circumstances excused the company's lack of
timely compliance. In the other three: Citation No. 7978121; Citation No. 7978134; and Citation
No. 7978135 (Docket No. WEST 2001-76-M), the Secretary subsequently vacated the orders. I,
therefore, conclude in aJl instances the company complied in good faith.

HISTORY OF PREVIOUS VIOLATIONS
At the hearing, counsel for the Secretary stated that the company had no applicable
history of previous violations, and I so find (Tr. 568-569).

CIVIL PENALTY ASSESSMENTS
DOCKET NO. WEST 2000-368-M

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7973902

9/27/99

56.12008

$55

I have found the viofation was not serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given fact that the proposed assessment adversely
will affect the company's ability to continue in business, that the company is small; that it
exhibited good faith in abating the violation; and that it lacks an applicable history of previous
violations, I conclude an assessment of $40 is appropriate.

DOCKET NO. WEST 2000-437-M

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978127

1/27/00

56.l410l(a)(3)

$371

I have found the violation was serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to contimie in business; that the company is small;
that extenuating circumstances excused its lack of timely compliance; and that the company la~ks
an applicable history of previous violations, I conclude an assessment of $70 is appropriate.

224

DOCKET NO. WEST 2000-446-M
Citation No.

Date

30 U.S.C.§

Proposed Assessment

7973999

1119/00

814(b)

$600

At the hearing the Secretary explained that this citation has been vacated (Tr. 1617). Therefore, no penalty is assessed.

DOCKET NO. WEST 2000-519-M
Citation No.

Date

30 U.S.C.§

Proposed Assessment

7978122

9/27/99

56.18002(b)

$55

I have found the violation was not serious. I also have found that it was the result of Tide
Creek's mitigated negligence. Given these criteria, and given fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an assessment of $25 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978123

9127199

56.14107(a)

$90

I have found the violation was serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that the company lacks an applicable
history of previous violations, I conclude an assessment of $70 is appropriate for this violation.

Citation No.

Date

30 C.F.R§

Proposed Assessment

7978124

9/27/99

56.14107(a)

$188

I have found the violation was not serious. I also have found that it was the result of Tide
Creek's mitigated negligence. Given these criteria, and given the fact that the proposed
225

assessment adversely will affect the company's ability to continue in business; that the company
is small, that it exhibited good faith in abating the violation; arid that it lacks an applicable
history of previous violations, I conclude an assessment of $25 is appropriate for this violation.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978125

9/27/99

56.14032

$264

I have found the violation was not serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an assessment of $40 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978126

9/27/1999

56.14103(b)

$66

I have found the violation was not serious. I also have found that it was the result of Tide
Creek' s negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an assessment of $40 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978129

9/28/99

56.14101(a)(3)

$55

I have found the violation was serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an assessment of $70 is appropriate for this violation.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978130

9/28/99

56.14132(b)

$90

I have found the violation was serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment

226

adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it' lacks an applicable history of
previous violations, I conclude an assessment of $70 is appropriate for this violation.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978131

9/28/99

56.14107(a)

$90

I have found the violation was serious. I also have found that it was the result of Tide
Creek' s negligence. Given these criteria, and given fact that the proposed assessment adversely
will affect the company's ability to continue in business, that the company is small, that it
exhibited good faith in abating the violation, and that the company lacks an applicable history of
previous violations, I conclude an assessment of $70 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978132

9/28/99

56.1410l(a)(2)

$55

I have found the violation was not serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an assessment of $40 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978133

9/28/99

56.1410l(a)

$55

I have found the violation was not serious. I also have found that it was the result of Tide
Creek' s negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company' s ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an assessment of $40 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978136

9/28/99

56.14100(d)

$55

227

I have found the violation was not serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an l:lssessment of $40 is appropriate.

DO~KET NO. WEST 2000-561-M

Citation No.

Date

30
U.S.C.§

Proposed Assessment

7973901

9/27/99

56.11001

$215

I have found the violation was serious. I also have found that it was the result of Tide
Creek's lessened negligence. Given these criteria, and given the fact that the proposed
assessment adversely will affect the company's ability to continue in business; that the company
is small; that it exhibited good faith in abating the violation; and that it lacks an applicable
history of previous violations, I conclude an assessment of $60 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7973904

9/28/99

56.18010

$162

I have found the violation was serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an assessment of $70 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7973905

9/2,8/99

56.5050

$215

I have found that the Secretary did not prove the violation. No civil penalty is assessed.

228

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978137

9/29/99

50.30

$66

I have found the violation was not serious. I also have found that it was the result of Tide
Creek's mitigated negligence. Given these criteria, and given the fact that the proposed
assessment adversely will affect the company's ability to continue in business; that the company
is small; that it exhibited good faith in abating the violation; and that it lacks an applicable
history of previous violations, I conclude an assessment of $25 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978438

3/29/2000

56.9301

$90

I have found the violation was serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an assessment of $70 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978439

3/29/2000

56.9300(b)

$90

I have found the violation was serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I concJude an assessment of $70 is appropriate.

DOCKET NO. WEST 2001-76-M

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978121

9/27/99

56.12028

$55

I have found the violation was not serious. I also have found that it was the result of Tide
Creek 's negligence. Given these criteria, and given the fact that the proposed assessment
229

adversely will affect the company's ability to continue in busin~ss; that the company is small;
that it exhibited good faith in abating the violation; and that it lacks an applicable history of
previous violations, I conclude an assessment of $40 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978134

9/28/99

56.14132(a)

$55

I have found the violatiqn was not serious. I also have found that it was the result of Tide
Creek's negligence. Given these criteria, and given the fact that the proposed assessment
adversely will affect the company's ability to continue in business; that the company is small;
that it exhibited good faith in abating the violation; and that.it lacks an applicable history of
previous violations, I conclude an assessment of $40 is appropriate.

Citation No.

Date

30 C.F.R.§

Proposed Assessment

7978135

9/28/99

56.1410l(a)(2)

$55

I have found that the Secretary did not prove the violation. No civil penalty is assessed.

ORDER
Tide Creek's motion to dismiss Docket No. WEST 2000-446-M is GRANTED. Citation
No. 7973905 (Docket No. WEST 2000-561-M) and Citation No. 7978135 (West 2001-76-M) are
VACATED.
Further, Tide Creek IS ORDERED to pay the following penalties on the structured basis
set forth below:
Docket No. WEST 2000-368-M
Docket No. WEST 2000-437-M
Docket No. WEST 2000-446-M
Docket No. WEST 2000-519-M
Docket No. WEST 2000-561-M
Docket No. WEST 2001-76-M
Total:

230

$ 40
70
0
530
260
80
$980

Tide Creek shall pay $330 within 30 days of the day of this decision, $325 on or before
June 24, 2002, and $325 on or before September 24, 2002 .

..J)~;df..8M~
David F. Barbour
Chief Administrative Law Judge
Distribution:
Matthew Vadnal, Esquire, Office of the Solicitor, U.S. Department of Labor, 1111 Third
Avenue, Suite 945, Seattle, WA 98101-3212
Agnes Petersen, Esquire, Tide Creek Rock, Inc., 33625 Tide Creek Road, Deer Island, OR 97054
/wd

231

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

February 22, 2002
MIKE FLETCHER,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 20-01-150-DM
WEMD00-11

v.
Portable Crusher #1
Min~ I.D. 45-03357

MORRILL ASPHALT PAVING,
Respondent

DECISION
Appearances:

Lany Larson, Esq., Lukins & Annis, Moses Lake, Washington,
for Complainant;
Lewis L. Ellsworth, Esq., Gordon, Thomas, Honeywell, Malanca,
Peterson & Daheim, Tacoma, Washington, for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by Mike Fletcher against
Morrill Asphalt Paving ("Morrilr') under section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). Mr. Fletcher alleges that he was laid
off from his employment with Morrill, at least in part, because he complained about safety
conditions at the crusher. An evidentiary hearing was held in Wenatchee, Washington. The
parties presented closing argument at the hearing in lieu of post-hearing briefs. For the reasons
set forth below, I find that Mr. Fletcher established that he engaged in protected activity and that
his layoff was motivated at least in part by that activity.

I. SUMMARY OF THE EVIDENCE
Morrill is in the sand and gravel business. Morrill operated a portable plant used to crush
rock that was moved to several locations in Washington State between 1997 and 2000. This case
arose as a :result of events that occurred in July 1999 through early February 2000.
Mike Fletcher first starting working for Morrill in January 1997. Prior to that time he
worked for several financial institutions and for Wenatchee Sand and Gravel. He was hired to
operate a mobile rock crusher. He also spent a year in Hermiston, Oregon, operating an asphalt

232

plant for Morrill. fu July 1999, the portable crusher was at a pit near Wenatchee. Because the
crusher was being set up at that time, he ran the loader and fed the plant for about a week.
(Tr. 15). While the crusher was at this pit, Fletcher complained about safety conditions to Roger
Harting, crusher superintendent. He told Harting that the handrails on the cone screen had not
been installed exposing employees to a 14-foot drop. (Tr. 16). Fletcher testified that the screens
were being changed on a daily basis exposing him and others to a falling hazard. Fletcher also
called Richard Thody, the corporate safety manager, to complain about the missing handrails.
Fletcher testified that Thody went to the pit and told Warren Smethers, who was in charge of
maintenance for the crushing plant, that the handrails needed to be installed. Handrails were
installed shortly thereafter.
fu August 1999, the portable crusher was moved to a different location. During this
period, Fletcher was in contact with Thody on a regular basis to talk about safety issues·. (Tr. 17).
Fletcher testified that Thody asked him to keep a list of safety deficiencies so Thody would be
better informed about safety issues. Fletcher provided that list in September 1999. (Ex. 4). In
early October 1999, the crew was told to report to the office of Dean Gill, the General Manager.
He called each individual into his office to discuss safety at the crusher. Mr. Smethers was
terminated from his employment and the crusher was shut down until Thody made sure that all
safety deficiencies had been corrected. (Tr. 19). Smethers was subsequently rehired by Morrill.
fu October 1999, the crusher was moved to Maple Valley in Kent, Washington. After
this move, Mr. Fletcher was assigned to the night shift to perform maintenance. The crusher was
shut down during the night shift and only maintenance was performed. In January 2000, the
crushing plant had to be repositioned at the Kent site because it was in a low area that tended to
accumulate water. After this relocation, Fletcher was assigned to be the plant operator during the
day shift. Fletcher made a number of complaints in January to Roger Harting. When no changes
occurred, Fletcher made these same complaints to Mr. Thody. His complaints were that two
employees at the crushing plant, Randy Syria and Don Drinkwater, were working with the smell
of alcohol on their breath. (Tr. 23). Fletcher testified that Syria told him that he drank vodka at
night until he passed out and started drinking again when he woke up the next morning. Fletcher
also testified that Syria apologized for his behavior. Fletcher stated that he believes that the
drinking issue is related to safety because there are many dangerous moving parts around a
crusher. For example, Fletcher believed that Syria could kill or injure an employee if he operated
the dozer while intoxicated. Fletcher felt that, as a shift boss, he had a duty to report this
behavior. He stated that other employees came to him to complain about intoxication on the job.
Fletcher stated that he was present when two other employees complained about this issue to
Harting. (Tr. 26-27).

On February 8, 2000, Fletcher again complained to Harting that Mr. Syria smelled of
alcohol, had a surly attitude, and had been arguing with another employee. Harting merely
shrugged his shoulders. Later during that same shift, Mr. Harting told Fletcher that he was laid
off. (Tr. 27). Fletcher testified that he asked Harting for a reason and Harting replied that there

233

was no reason. (Tr. 28). When Fletcher asked again, Harting r~plied that the company"didn't
give Warren [Smethers] a reason when they laid him off." Id.
After Fletcher left the property in his truck, he called Dean Gill. Fletcher testified that
Gill told him that he didn't know that he "had been laid off." Id. Gill told Fletcher to meet with
him at his office the following morning. Fletcher also called Mr. Thody. Fletcher testified that
Thody was furious when he heard that he had been laid off. Apparently, Thody wonder~d aloud
during this conversation whether Fletcher had been discriminated against for raising safety
issues. (Tr. 29). Thody asked Fletcher to meet with him after his meeting with Gill the
following morning.
At the meeting with Gill on the morning of February 9, Fletcher asked Gill whether
Harting had told him about Fletcher's complaints about safety and drinking on the job. Gill
replied that Harting had not contacted him about any drinking issues. Fletcher testified that Gill
did not tell him at this meeting that he was being laid off for economic reasons or for lack of
work. Id.
Fletcher then met with Thody. Thody called Burt Touchberry, his boss, into his office
and outlined the key events in Fletcher's employment history. According to Fletcher, both Thody
and Touchberry indicated that he may have been discriminated against. (Tr. 30). Thody asked
Fletcher to make a list of the safety deficiencies that Roger Hartin~ had tolerated since Fletcher
started working for Harting. (Tr. 30; Ex. 3).
Fletcher testified that Gill called him at his home on February 10, 2000, and said "you
weren't laid off for any other reason than lack of work." (Tr. 32). Fletcher met with Thody
several more times after that. Thody recommended that Fletcher file a discrimination complaint
with the State of Washington under WISHA, the Washington Industrial Safety and Health Act.
Fletcher filed a WISHA complaint. (Ex. I). On or about February 24, Thody told Fletcher that
he continued to believe that Fletcher got a ..raw deal," but that he had been verbally reprimanded
by his supervisor for making statements about discrimination to Fletcher.
Fletcher agrees that the crushing plant was overstaffed at the time of his layoff. (Tr. 4647). He also does not dispute that Roger Harting was qualified and able to op~rate the plant. He
also admits that when he raised safety issues at the pit near Wenatchee, the conditions were
corrected. (Tr. 47). Except for the drinking issue raised at the Kent site, all of the safety issues
were corrected. Indeed, Mr. Gill went to the site and instructed employees on safety issues.
(Tr. 49). Morrill shut down the plant for several days in early October 1999 to correct the
potential safety hazards that Fletcher brought up. Thody told Gill about the drinking problem at
the crusher, but Harting never mentioned it. Fl~tcher believes that he was terminated because he
went over Harting's head to talk to Thody and Gill about his safety concerns. Fletcher believes
that both Gill and Thody wanted the crusher to be operated in a safe manner.

234

Fletcher believes that, once Morrill determined that it peeded to eliminate an employee at
the Kent site, he should have been bumped down to another position because he was capable of
performing all of the tasks at the crusher. Gill did not deny that Fletcher could have probably
performed any job at the crusher. (Tr. 76-77). As it was, the two employees who came to work
with alcohol on their breath kept their jobs while he was laid off. Both Syria and Drinkwater had
less seniority than Fletcher. Drinkwater was hired by Morrill on January 10, 2000, and Syria was
hired on August 23, 1999. Fletcher contends that he was laid off because he complained about
safety over Harting's head.
Mr. Gill testified that he advised Fletcher on February 8 that he was being laid off
because the company had to cut back. (Tr. 95). Gill testified that Fletcher was laid off because
the company was losing money at the Kent site and, because they were operating only one shift,
two plant operators were no longer needed. (Tr. 68). He stated that he had never terminated
anyone on the basis of a lack of work until Fletcher was terminated. Gill stated that Fletcher was
a good employee and admitted that he could have terminated Drinkwater or Syria instead of
Fletcher.
Gill testified that he was the Morrill manager who determined that a layoff was necessary.
He discussed who should be laid off with Harting. The crushing plant was operating one shift
per day but there were two plant operators, Fletcher and Harting. Gill testified that he told
Harting that the crusher did not need two plant operators. (Tr. 74). Harting called Gill back to
tell him that Fletcher was the other plant operator. Gill testified that he responded "that's fine,"
meaning that Fletcher was chosen for the layoff. (Tr. 74-75). Gill testified that he did not take
seniority into consideration when making this decision. (Tr. 79).
Although Gill told the Washington State Department of Labor and Industry during the
WISHA investigation that Fletcher was the highest paid employee at the crushing plant, there
were actually four or five employees making the same amount of money as Fletcher at the Kent
project. Both Drinkwater and Syria were paid the same rate as Fletcher. When the crusher was
working at projects that were not publically funded, Fletcher and Harting were paid more than
the other employees. (Tr. 91 ). Gill testified that he chose Fletcher because Morrill did not need
two plant operators at Kent. He believed that Thody was working with Syria and Drinkwater to
correct any drinking problems. He was concerned about it, but believed that it no longer
presented a safety hazard. Gill also testified that employees should raise safety issues and that he
has never taken an adverse action against an employee who complained about safety. (Tr. 9192). A meeting was held on the morning of February 8, 2000, to advise employees that they will
be terminated if they test high for blood alcohol. (Ex. 6).
Richard Thody testified that he has a degree in loss control and started working for
Morrill's parent company, Goodfellow Brothers, Inc., as the safety and health manager in March
1999. (Tr. 109). He stated that he and Fletcher had a good relationship and that Fletcher
discussed safety issues with him in July 1999 and at other times after that date. Fletcher also
complained to him about employees drinking on the job. (Tr. 114). Thody discussed the

235

drinking problem with Gill. Thody apparently was not held in .high regard by Harting because
Harting referred to Richard Thody as the "Safety Dick" behind his back. (Tr. 116; Ex. 3 p.2).
When Thody heard that Fletcher had been laid off, he became upset. Thody testified that
he told Fletcher that he may have been discriminated against. (Tr. 118). At the hearing, Thody
testified that he does not believe that Fletcher was discriminated against for making safety
complaints. (Tr. 118-19). Thody now believes that his initial belief that Fletcher may have been
discriminated against was "a knee-jerk reaction." (Tr. 122). He was upset that Fletcher was laid
off because they worked well together on safety issues and he considered Fletcher to be his
friend. (Tr. 122 ,126). He was also upset because he also believed that Fletcher was very safety
conscious. (Tr. 127). Thody testified that Gill would not take any retaliatory action against a
employee for making safety complaints.
Gary Kneedler worked for Morrill from July 1994 to November 1999 as a crusher
superintendent. (Tr. 130). Mr. Fletcher had worked um;ler Kneedler as a plant operator.
Kneedler testified that Fletcher knew how to operate the loader, the dozer, and the bobcat as well
as perfonn all the other jobs at the crusher. Kneedler testified that Fletcher was a better
employee than others because he was experienced at mnning all the equipment. He would have
taken the experience and seniority of employees into consideration if a layoff had been required
when he was the crusher superintendent. Kneedler testified that, in the crushing business, an
employer will need two plant operators on some jobs but only one in others, depending on the
number of operating shifts. He said th~t, as a general matter, "the more experienced key guys are
the ones you want to keep around when you fluctuate crews back and forth." (Tr. 133). He
admitted that Morrill was not required to lay off employees based on seniority, but that it was the
"industry standard" to do so. (Tr. 135).
Shawn Simmons worked for Morrill from October 1998 to November 2000 as the area
manager in Morrill's Henniston, Oregon, office. He worked with Fletcher when Fletcher was the
operator of the hot plant. Simmons testified that he was present at a safety meeting held in the
Wenatchee Convention Center when he overheard a discussion of Mr. Fletcher's layoff.
Simmons could not remember when this meeting took place but it was before Fletcher was laid
off. (Tr. 143). Simmons heard Gill talk about the layoff. In Simmons' opinion, based on th(:se
conversations, the "primary reason [that Fletcher was laid off] seemed to be that he was stirring
the pot, causing problems, going to the safety officer, things like that." (Tr. 140-41).
Mr. Gill testified that he has never made any derogatory remarks about Thody and that he
did not say anything negative about Fletcher at the safety meeting at the convention center.
(Tr. 151 ). Gill testified that Thody is a good safety officer because he is "real thorough." Id.
Gill testified that Simmons may harbor animosity against Morrill because Simmons was accused
by Morrill of stealing from the company. (Tr. 152). Morrill believes that he was selling crushed
rock off the books and pocketing the money. (Tr. 152-53). Although Simmons quit his job in
November 2000, Gill testified that Morrill was investigating Simmons' activities and that he
would have been fired in any event for stealing from the company.

236

II. SUMMARY OF THE PARTIES' ARGUMENTS

A. Mr. Fletcher
Mr. Fletcher argues that the facts demonstrate that he was a good worker and a safetyconscious employee who had worked for the company since 1997. Starting in July 1999,
Fletcher made safety complaints to bis supervisor and to Mr. Thody. In January 2000, Fletcher
complained about employees coming to work with alcohol on their breath. One of the
individuals that Fletcher complained about, Mr. Drinkwater, was hired on January 10, 2000.
After Fletcher made these complaints, Morrill decided that it needed to lay him off for economic
reasons. Fletcher was laid off even though other employees had less seniority. The evidence
shows that Fletcher had the experience to perform all the jobs at the plant.
Fletcher argues that the company's justification for his layoff is illogical and inconsistent.
First, Morrill's position in the WISHA proceedings was that Fletcher was chosen because he was
the highest paid employee at the Kent site. Later, when it was revealed that Fletcher made no
more money than anyone else, the company argued that it did not need two plant operators.
Fletcher contends that, because he had the ability and experience to perform all the jobs at the
plant, the decision to lay him off as opposed to other less experienced employees does not make
any sense. Mr. Gill testified that the company is safety conscious, yet the only person laid off
was Mr. Fletcher who was making safety complaints. Mr. Thody was very upset by the layoff
because the company let go the only person who was keeping him informed about safety
problems. Thody continued to be concerned about Fletcher's termination when the State of
Washington investigated the incident. Thody's testimony at the hearing should not be given any
weight. Fletcher contends that the statements of management and Morrill' s justification for
choosing Fletcher for layoff do not "stack up in this case." (Tr. 161 ). Fletcher contends that he
established that he was discriminated against when chosen for layoff.

B. Morrill Asphalt
Morrill argues that its decision to lay off Mr. Fletcher was not personal but economic
only. The evidence establishes that Morrill had a strong commitment to safety. Fletcher does not
deny that Thody and Gill were committed to safety. Fletcher did not feel threatened by bringing
written safety complaints even though he knew that management would see it. Gill came to the
plant in early October 1999 and shut it down for two days so that the safety problems that
Fletcher brought up could be corrected. Every safety complaint that Fletcher raised was promptly
attended to. Fletcher's real argument in this case is that he was singled out because he went over
Harting'~ head when making safety complaints to Thody and Gill. There is no evidence in the
record that he was discriminated against for this reason.
A mine operator cannot "negligently discriminate" against a miner. (Tr. 163). The
discrimination must be an intentional act. Throughout this case and the investigation by the State
of Washington, Fletcher maintained that Mr. Gill would not have taken any action against him as
237

punishment for raising safety issues. Mr. Gill was the person Vl(ho detemtined that there were too
many people working at the Kent Plant and determined that two plant operators were not
necessary. There is no question that Morrill was losing money at the Kent Plant. Morrill does
not have a collective bargaining agreement and it does not recognize seniority as a factor when
laying off employees. There was nothing improper about Morrill selecting Fletcher for layoff.

Mr. Thody considered Fletcher to be his friend. Consequently, when Thody heard that
Fletcher of laid off, he was naturally very upset. Thody raised the discrimination issue because
he was upset, not because he believed that Fletcher had actually been discriminated against.
Fletcher'~ reliance on Mr. Thody' s statements following his layoff is nothing more than a "house
of cards." (Tr. 166). The testimony of Simmons should be given no weight. This case should be
dismissed because Fletcher did not meet his burden of proof.

HI. DISCUSSION WITH FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine) Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 951h Cong., l51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 951h Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 623 (1978). "Whenever protected activity is in any manner a contributing
factor to the retaliatory conduct, a finding of discrimination should be made." Id. at 624.
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient to support a conclusion that he
engaged in protected activity and suffered adverse action motivated in ~y part by that activity.
Secretary ofLabor on behalfof Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800
(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on
behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v.
Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the
prima facie case by showing either that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine
operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving
that it was also motivated by the miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Id.; Robinette, 3 FMSHRC at 817-18; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (41h Cir. 1987).

238

A. Did Mike Fletcher eni:ai:e in protected activity~
Mr. Fletcher engaged in protected activity when he complained about safety conditions at
the plant from July 1999 until he was laid off. His complaints about alcohol use by his fellow
employees was safety related because he feared that they could injure him as they operated heavy
equipment.

B. Was Morrill's layoff of Mike Fletcher motivated in any part by his protected
activity?

In determining whether a mine operator, s adverse action was motivated by the miner, s
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect." Secretary ofLabor on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), rev'd on
other grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence." Id. (citation omitted).
In Chacon, the Commission listed some of the more common circumstantial indicia of
discriminatory intent: (1) knowledge of the protected activity; (2) hostility or animus towards the
protected activity; (3) coincidence in time between the protected activity and the adverse action;
and (4) disparate treatment of the complainant. See also Hicks v. Cobra Mining, Inc. ,
13 FMSHRC 523, 530 (April 1991).
There can be no dispute that Morrill was aware ofFletcher,s safety complaints. There
was also a coincidence in time between Fletcher's complaints and his layoff. Fletcher started
making safety complaints in July 1999 and his complaints continued until his layoff. Simmons
testified that he overheard a conversation that led him to believe that Fletcher was laid off
because he was "stirring the pot, causing problems, [and] going to the safety officer." (Tr. 14041). I do not rely on Simmons' testimony. Circumstantial evidence shows that Harting did not
welcome the safety activities of Thody and Fletcher. There is also evidence that Harting, not
Gill, selected Fletcher for layoff. It appears that Morrill had never previously terminated anyone
from employment under circumstances similar to the layoff of Fletcher.
I find that Fletcher established a prima facie case of discrimination. The circumstantial
evidence establishes that the choice of Fletcher for lay off was motivated at least in part by his
safety activities. Morrill's decision to lay off Fletcher does not make any sense from a business
context. Fletcher was a well-trained and experienced plant operator who could perform any of
the myriad tasks at the crusher. He had worked for Morrill for three years in a wide range of
positions from a hot plant operator, maintenance worker, plant operator, and equipment operator.
There is..nothing in the record to indicate that Morrill had any problems with his work habits.
When the plant was first moved to Kent, Fletcher worked the evening maintenance shift because
there was only one operating shift. For reasons that are not clear, when the plant was
repositioned at Kent to reduce flooding around the crusher, Fletcher became the plant operator
even though Harting also worked that same shift and could operate it.
239

I credit the testimony of Gary Kneedler that it is the ind~stry standard for a sand and
gravel operator to retain the most senior and experienc~d employees when a layoff is necessary.
It is logical to do so because, if and when the workload increases, the operator will be able to
increase output more quickly. I recognize that Morrill W<l$ not restricted by a collective
bargaining agreement to use seniority when determining whom to layoff, but it strains logic to
assume that experience would not be considered when a reduction in workforce is necessary. In
this case, Morrill retained two employees who had alcohol abuse problems at the plant, including
one who had worked for Morrill for less than a month. Under these circumstances, the logic
behind Morrill's decision to lay off Fletcher is difficult to understand. As discussed below, the
evidence establishes that Harting played a major role in the decision to lay off Fletcher.
As the Commission has stated, motivation is subjective and direct evidence of motivation
is rarely encountered. There is sufficient evidence in the record to establish that Morrill was
motivated, at least in part, by Fletcher's safety work to establish a prima facie case of
discrimination. Some of the evidence I relied upon in reaching this conclusion is discussed in
more detail below.

C. Did Morrill establish that its layoff of Mike Fletcher (1) was not motivated in
any part by Fletcher's protected activity or (2) that it would have occurred even if Fletcher
had not made any safety complaints to Hartin~, Thody. and Gill?
Morrill contends that the layoff was totally based on economic considerations. Morrill
established, and Fletcher does not dispute, that a layoff at the crusher was justified. Morrill did
not make the decision 'that a layoff was necessary as a pretext to terminate Fletcher. The issue is
whether the decision to choose Fletcher for layoff was motivated by his protected activities.
Morrill posited a number of diffenmt reasons for choosing Fletcher for layoff. When
Fletcher challenged his layoff in the WISHA proceeding, Morrill contended that Fletcher was
chosen because he was the highest paid employee at the crusher besides Mr. Harting. It is clear
that Mr. Fletcher's wages were no greater than Drinkwater' s and Syria's wages at the Kent
project. In the present proceeding, Morrill argued that Fletcher was chosen because two plant
operators were not required at Kent. Morrill did not establish that Fletcher was chosen for that
reason alone.
Morrill also relies on the fact that Fletcher did not believe that Gill would lay him off
because he complained about safety. Fletcher had high regard for Gill's commitment to safety
because he had responded to his earlier complaints. Morrill argues that Fletcher's confidence in
Gill is an admission that bars this action. It contends that because Gill made the final decision to
lay off Fletcher, this case must be dismissed. I reject Morrill's argum<mt. First, Fletcher's
position is that Harting was the one who wanted to see him terminated from his employment and
that it was Harting, not Gill, who first suggested that Fletcher be chosen for layoff. Fletcher
believes that if he had not been making safety complaints, Harting would have not have
suggested him for layoff and that Gill would have accepted Harting's recommendation. In

240

addition, the complaint in this case is against Morrill not Gill ~o the fact that Fletcher believes
that Gill would not lay him off for making safety complaints does not bar this action or establish
that Morrill was not motivated in some part by Fletcher's safety complaints.
Discrimination cases typically arise in the context of a termination for cause. In such
instance, if a mine operator cannot establish that the protected activity played no part in its
decision to terminate the complainant, it may nevertheless defend by proving that (1) it was also
motivated by the miner's unprotected activities, and (2) that it would have taken the adverse
action in any event for the unprotected activities alone. Because this case involves a layoff, the
test is not a perfect fit. I must analyze whether Morrill would have laid Fletcher off even if he
had not engaged in protected activity.
The Commission has cautioned its administrative law judges that the "Commission does
not sit as a super grievance board to judge the industrial merits, fairness, reasonableness, or
wisdom of an operator's employment policies except insofar as those policies may conflict with
rights granted under section 105(c) of the Mine Act." Delisio v. Mathies Coal Co., 12 FMSHRC
2535, 2544 (December 1990) (citations omitted). Nevertheless, the judge must carefully analyze
the reasons given by the employer for the adverse action to determine whether such reasons are
simply a pretext. In Chacon, the Commission explained the proper criteria for analyzing an
operator's business justification for an adverse action:
Commission judges must often analyze the merits of an operator's
alleged business justification for the challenged adverse action. In
appropriate cases, they may conclude that the justification is so
weak, so implausible, or so out ofline with normal practice that it
was mere pretext seized upon to cloak the discriminatory motive.
The Commission and its judges have neither the statutory
charter not the specialized expertise to sit as a super grievance or
arbitration board meting out industrial equity. Once it appears that
a proffered business justification is not plainly incredible or
implausible, a finding of pretext is inappropriate. We and our
judges should not substitute for the operator's business judgement
our views on "good" business practice or on whether a particular
adverse action was 'just or "wise." The proper focus, pursuant to
Pasula, is on whether a credible justification figured into the
motivation and, if it did, whether it would have led to the adverse
action apart from the miner's protected activities. If a proffered
justification survives pretext analysis ... , then a limited
examination of its substantiality becomes appropriate. The
question, however, is not whether such a justification comports
with a judge's or our sense of fairness or enlightened business
practice. Rather the narrow statutory question is whether the
241

reason was enough to have legitimately moved that operator to
have disciplined the miner.
·

Chacon, at 3 FMSHRC 2516-17 (citations omitted). The Commission further explained its
analysis as follows:
[T]he reference in Chacon to a "limited" and "restrained"
examination of an operator's business justification defense does
not mean that such defenses should be examined superficially or be
approved automatically once offered. Rather, we intended that a
judge, in carefulJy analyzing such defenses, should not substitute
his business judgement or a sense of "industrial justice" for that of
the operator. As we recently explained, "Our function is not to
pass the wisdom or fairness of such asserted business justifications,
but rather only to determine whether they are credible and, if so,
whether they would have motivated the particular operator as
claimed."

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) (citations omitted).
As stated above, Morrill's evidence that cutbacks were necessary is credible. It is also
true that two plant operators were not necessary at the Kent site because the crusher was
operating only one shift per day. The question is whether Morrill used the layoff as a cover to
terminate Fletcher.
Morrill argues that a mine operator cannot "negligently discriminate" against a miner. I
agree that the discrimination must be intentional. The following factors are in Fletcher's favor:
(1) the proximity in time between his safety complaints and the adverse action; (4) Morrill's
knowledge of his protected activity; (3) Morrill provided inconsistent reasons for choo$ing
Fletcher for layoff at different times; (4) Morrill was aware that Fletcher had worked in many
different positions for Morrill including on the maintenance shift at the Kent site;
(5) Fletcher was paid the same hourly wage at the Kent site as other employees including Syria
and Drinkwater; (6) Harting referred to Thody in disparaging terms, (7) Harting did not appear to
welcome and was unresponsive to Fletcher's safety complaints, and (8) Fletcher had a good work
record. Also favoring Fletcher is Mr. Thody's initial reaction to his layoff Thody was well
aware of Fletcher's work history and safety activities and he sincerely believed that he had been
discriminated against. Fletcher was the only Morrill employee making safety complaints.
Of these factors, I find it highly significant that Mr. Gill offered different explanations for
the layoff of Fletcher at different times. Because his reasons are inconsistent, I question the
credibility of his testimony. Mr. Gill told the Washington State Department of Labor and
Industry (DLI) investigator, on May 18, 2000, that Mr. Harting made the decision to lay off
Fletcher. (Gill Interview at 5 attached to Fletcher's Response to Morrill's Motion for Summary
242

Decision; Tr. 98-99). Gill told the DLI investigator that when he asked Harting how many
people were working at the Kent crusher, Harting replied that ·eight people were working there.
Id. Gill stated that he told Harting that only six people should be on that job. He further stated
that Harting called him back and asked if it was "okay to lay off Mike." Gill told the DLI
investigator that he responded to Harting as follows:
[W]hoever you want to lay off is fine with me. I mean, that's,
you're the guy that's running the crusher. As long as ... it's not
jeopardizing your production ability, you know, you make the
choice.
Id. Gill also told the DLI investigator that Fletcher was the highest paid employee on the job
except Roger Harting. Id. at 6.

During his deposition taken in this proceeding on July 17, 2001, Gill stated that, although
Harting notified Fletcher that he was being laid off, '"Roger and I" made the decision to choose
Fletcher for layoff. (Gill Dep. at 28 attached to Fletcher's Response to Morrill's Motion for
Summary Decision; Tr. 102). Gill further testified at the deposition, as follows:
I remember telling [Harting]: We don't need two operators. What
do we need two crusher operators for. We don't. Well, lets get rid
of one of the crusher operators. These other guys are grunts that do
specific things. Mike was basically the guy who just sat around
and pushed buttons on a button house, get rid of Mike.
(Gill Dep. at 34). At the hearing, Gill testified that he told Harting to lay off the other crusher
operator and, when he was told that it was Fletcher, he replied "that's fine." (Tr. 74-75). Harting
did not testify at the hearing. Gill's testimony in the WISHA proceeding, taken only a few
months after the layoff, was that Harting chose Fletcher for layoff. That testimony supports
Fletcher's position in this case. I find that Fletcher's version of the events, as supported by Gill's
DLI interview, is more credible.
Morrill did not rebut Fletcher's primafacie case. I find that the testimony of Fletcher is
more credible than the testimony of Gill or Thody, for the reasons discussed above. Gill's
testimony has been inconsistent and Thody's change of heart is not convincing. According to the
declaration ofDLI investigator Britt Scott, Thody told Scott during a telephone interview in
March 2000, that Fletcher's layoff"would make [his] job more difficult because now other
employees are going to be afraid to speak up or report any safety and health problems or
concerns." (Ex. 11at2). The anti-discrimination provisions of the Mine Act were enacted
specifically to prevent these types of fears. During the seven months prior to his layoff, Fletcher
sought Thody's help in correcting safety deficiencies because Fletcher reasonably believed that
Harting did not welcome and was unresponsive to his safety concerns. I conclude that the
justifications presented by Morrill for choosing Fletcher for layoff are "so weak, so implausible,
243

or so out of line with normal practice that it was mere pretext seized upon to cloak the
discriminatory motive." Chacon, at 3 FMSHRC 2516. Morrill used the necessity of the layoff to
select Fletcher because he had been making safety complaints to Thody. In conclusion, I find
that Fletcher established a prima facie case of discrimination and that Morrill did not rebut his
case by showing that it did not lay off Fletcher for his protected activity or that it would have laid
Fletcher off even if he had not engaged in protected activity.
It is my understanding that Fletcher is seeking (1) back pay from the date of his layoff
through November 14, 2000; (2) retirement pay for the same period of time; and (3) health care
benefits for this same period oftime. (Tr. 33-46). He worked for other employers during part of
this period. The crusher was shut down on November 14, 2000, and the crusher employees were
laid off. Morrill disputes the award sought by Fletcher.

IV. ORDER
The parties are ORDERED TO CONFER before March 15, 2002, in an attempt to
reach agreement on the specific relief to be awarded. An agreement as to the scope and amount
of the relief will not preclude either party from appealing this decision. If an agreement is
reached, it shall be submitted to me on or b~fore March 27, 2002. The relief may be a lump sum
payment.

If an agreement cannot be reached, the parties are FURTHER ORDERED to submit
their respective positions on the disputed issues, with supporting arguments, case citations, and
citations to the record, on or before March 28, 2002. Each party shall submit specific proposed
dollar amounts for each category of relief. 1 If either party requests a hearing on remedial issues,
such request shall identify the specific issue(s) on which a hearing is deemed necessary and
provide a proffer of the evidence intended to be introduced. The other party shall submit a
similar proffer within five days. lfl determine that a hearing is necessary, it will be scheduled
expeditiously. In accordance with 29 C.F.R. § 2700.44(b), I am submitting copies of this
decision to the Secretary of Labor so that she may propose a civil penalty for the violation of
section 105(c) of the Mine Act as set forth in that rule.

1

The proper method of calculating interest on back pay is set forth in Secretary on behalf
ofBailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2052 (Dec. 1983), as modified by Clinchfield
Coal Co., IO FMSHRC 1493, 1505-06 (Nov. 1988).

244

I retain jurisdiction over this case until I issue a specific award to Mr. Fletcher.
Consequently, this decision will not become a final appealable decision until I issue an order
awarding monetary damages.

Richard W. Manning
Administrative Law Judge

Distribution:

Larry Larson, Esq., Lukins & Annis, 1405 S Pioneer Way, Moses Lake, WA 98837 (Certified
Mail)
Lewis L. Ellsworth, Esq., Gordon, Thomas, Honeywell, P.O. Box 1157, Tacoma, WA 984011157 (Certified Mail)

RWM

245

246

..

~

·-

ADMINISTRATIVE LAW JUDGE ORDERS

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

February 1, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2001-363-M
A. C. No. 41-00009-05552

v.

Docket No. CENT 2001-364-M
A. C. No. 41-00009-05553

CACTUS CANYON QUARRIES
OF TEXAS, INC.,
Respondent.

Mine: Fairland Plant & Quarry

ORDER DENYING MOTION TO CERTIFY
INTERLOCUTORY REVIEW
This case is now before me on Respondent's Motion to Certify a Ruling for Interlocutory
Review by the Commission under Rule 76. The issues Respondent seeks to have the Commission
review arise out of my decision to permit the Secretary to file these Petitions after the lapse of the
45 day period following notice of contest provided in Rule 28(a). My Order granting leave to file
beyond the 45 day period was dated December 12, 2001. Respondent filed a motion to reconsider
by Order and that motion was denied on December 28, 2001. Respondent filed motions addressed
both to me and to the Commission seeking interlocutory review of my decision to permit the late
filing of these Petitions. Counsel for the Secretary has now filed (January 25, 2002) a response to
these motions for interlocutory review.
Analysis
Under Rule 76, a Motion for Certification of futerlocutory Review poses two questions for
the hearing Administrative Law Judge; (1) does the ruling sought to be reviewed involve a
controlling question oflaw, and (2) will immediate review materially advance the final disposition
of the proceeding. For reasons discussed at greater length below, my answer to both questions is
negative.

".:i a pedestrian sense, any issue that has the potential to end a controversy can be said to be
a "controlling" issue. fu that sense, the Respondent appears to argue that the issue of timing of the
filing of the Petition is a controlling issue which ought to be resolved in it's favor before going on
to the merits of the various citations of safety violations contained in the Petitions. What the
Respondent fails to note in Rule 76 is the requirement that the issue be an issue of law, i.e. a
question of interpretation of the law in the facts of the case. fu this instance, no question oflaw is
247

presented. It is clear that an Administrative Law Judge has great factuCJl discretion in detennining
whether to grant leave to file a Petition beyond the period established by the Rules of the
Commission. While there are cases and opinions on the exercise of that discretion, it remains a
factual rather than a legal issue and thus is not appropriate for interlocutory review. The point, if it
has merit in the eyes of a subsequently reviewing body, has been preserved for any necessary
subsequent appeal.
Further, it is my opinion that interlocutory review of this question would not materially
advance the final disposition ofthis proceeding. Interlocutory review would, on the contrary, greatly
delay the final disposition ofthis proceeding. Counsel for the Secretary has contributed a much more
detailed account of the reasons for the small delays experienced in this case. While that detail was
not necessary to convince me that adequate reasons for the delay existed, they make it clear to me
that the probability of dismissal for delay under Rule 28 is so small as to be nonexistent. Affording
the Respondent an interlocutory review at this time would serve no useful function.
I have pending·befbre me four Petitions for Assessment of a Civil Penalty against Cactus
Canyon Quarries, i.e. these two and two others. It is my intention, as soon as the issue of
interlocutory review is resolved by the Coinmission, to conduct a prehearing conference in Austin,
Texas, on all of these cases then pending before me in order to expedite a consolidated hearing on
the merits. Further delays will be reduced to a bare minimum.
Therefore, it is

ORDERED that the Motion for Interlocutory Review is denied.

Administrative Law Judge
703-756-5232

Distribution: (Certified Mail)
Andy Carson, Esq., 7232 Co. Rd 120, Marble Falls, Texas 78654
Christopher V. Grier, Esq., Office of the Regional Solicitor, Department of Labor,
525 S. Griffin Street, Suite 501, Dallas, Texas 75202

248

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, 0. C. 20006·3867
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

February 6, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEY A 2002-21
A. C. No. 46-01968-04383

v.

CONSOLIDATION COAL COMPANY,
Respondent

Mine: BlacksviUe No. 2

ORDER ACCEPTING LATE FILING
ORDER TO RESPONDENT TO ANSWER
Before:

Judge Barbour

On January 28, 2002, the Commission received the Secretary of Labor's Motion For
Leave to File Out of Time, in the above captioned case. The Secretary failed to timely file her
penalty petition. In support of her motion, the Secretary asserts that the Solicitor's Office
received the present case, Docket No. WEYA 2002-21, on January 18, 2002 along with another
case, Docket No. WEY A 2002-20. Mot. at 1. When Docket No. WEYA 2002-20 was
transferred to the Mine Safety and Health Administration's ("MSHA") District Three Office to
be handled by a CLR, the documentation case was inadvertently transferred along with another
case. Id. The assigned counsel, the Secretary further proffers, realized what happened on
January 24, 2002, and instructed the MSHA office to return the documentation via overnight
mail. Id. at 1-2. In addition, the Secretary states that the case was further delayed because
MSHA did not receive the mail for an extended period-of-time due to the recent anthrax
contamination in the U.S. Postal Service, and, thus, the processing of this case by the Office of
Assessments was delayed. Id. at 2. The Respondent does not object to this motion. Id.
According to the date stamped on the notice of contest, MSHA received the operator's
contest on November 29, 2002: Therefore, the Secretary should have filed her penalty petition
on or before January 14, 2002. The Secretary's Certificate of Service shows that the penalty
petition was filed on January 28, 2002, 14 days after the due date.

249

Section 105(d) of the Mine Act states in pertinent part: "[iJf, within 30 days of receipt
thereof, an operator of a coal or other mine notifies the Secretary that he intends to contest the
issuance or modification of an order issued under section I 04, or citation or a notification of
proposed assessment of penalty issu~d under subsection (a) or (b) of this section ... , the
Secretary shall immediately advise the Commission of such notification, and the Commission
shall afford an opportunity for a hearing". Further, 29 C.F.R. § 2700.28(a) states that, "within
45 days of receipt of a timely contest of a proposed penalty assessment, the Secretary shall file
with the Commission a petition for assessment of penalty". Moreover, the Commission has
stated that "Rule (28] implements the meaning of 'immediately' in section 105(d)". Salt Lake
Co. Road Dept., 3 FMSHRC 1714, 1715 (July 1981). Thus, it is apparent that the purpose of
Rule 28 is to effectuate swift enforcement. Id.
While the Secretary should adhere to the 45"day time limit, the Commission has made
clear that neither the term "immediately" nor the time limit should be construed as a "procedural
strait [jacket]". Id. at 1716.... The Commission has further stated that the Secretary may request
permission for late filing if the request is (1) based upon adequate cause, and (2) the operator has
an opportunity to object to the late filing on the grounds of prejudice. 1 Id.
There are various situations from which adequate cause may arise. Clerical mishaps
have been considered adequate cause for late filings. A Solicitor has been permitted to file a
penalty petition out of time because the file for the case had been inadvertently misplaced. Jerry
Hudgeons, 22 FMSHRC 272, 274 (Feb. 2000).. The Commission has held that a rise in caseload
coupled with a lack of personnel support has been considered adequate cause. 3 FMSHRC 1714;
Medicine Bow Coal Co., 4 FMSHRC 882 (May 1982). A late-filed penalty petition has also been
accepted where the delay was due to the adoption by MSHA of a new system for handling mine
safety cases. Roberts Brothers Coal Co., 17 FMSHRC 1103 (June 1995). In addition,.a
government shutdown has been considered adequate for a late filing. Roger Christiansen, 18
FMSHRC 1693 (Sept. 1996).
Adequate cause is based upon the reasons offered and the extent of the delay. 22
FMSHRC at 273. I conclude that the clerical error and the unforeseen anthrax contamination in
the postal service constitute adequate cause for filing the penalty petition 14 days out of time.

1

In footnote one of the Secretary's motion, the Secretary disagrees with the Commission's
position that the Secretary must establish adequate cause apart from any consideration of whether
the operator is prejudice<j by the delay. Commission decisions are binding precedent in Mine
Safety cases, however, and the Commission has clearly stated that "the Secretary must establish
adequate cause for the delay in filing, apart from any consideration of whether the operator was
prejudiced by the delay." Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1993), aff'd,
57 F.3rd 982 (10th Cir. 1995)(emphasis added). Therefore, as binding precedent, Commission
Judges must make separate determinations for adequate cause and prejudice to the operator
before they accept late filings.
250

In addition, as the Respondent has not alleged any prejudice from the delay, I conclude
that the short delay is not prejudicial.
In light of the foregoing, it is ORDERED that the Secretary's late filed penalty petition is
ACCEPTED.
It is further ORDERED that the Respondent file an answer to the penalty petition within
30 days of the date of this order.

.- •f / ) h-;

~-·)v----1/ (/ ~ /51--;_,.t.£~
David F. Barbour
Chief Administrative Law Judge

--

Distribution: (Certified Mail)
Robert S. Wilson, Esquire, Office of~e Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 400, Arlington, VA 22203
Robert M. Vukas, Esquire, Consol Energy Inc., 1800 Washington Road, Pittsburgh, PA 15241
/wd

251

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

February 14, 2002
PRONGHORi'\I DRILLING COMPANY,
Applicant

EQUAL ACCESS TO JUSTICE
PROCEEDING

v.

DOCKET NO. EAJ 2001-4
Formerly WEST 2000-537-M I 538-M
A. C. Nos. 48-00837-05501 N5Y
48-00837-05502 N5Y

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

Smith Ranch Project
AMENDMENT TO DECISION
Pursuant to Commission Rule 69(c), 29 C.F.R. § 2700.69(~), paragraph 2 page 3 of the
decision in this case issued January 15, 2002, is hereby corrected to read as follows:
The Secretary nevertheless argues that Rio Algom 's processing of this
mineral, which has been extracted in liquid form without workers underground, is
covered under Section 3(h)(l)(C) of the Act as "the milling of such minerals."
"Coal or other mine" is there defined to also include " .. . structures, facilities,
equipment, machines, tools, or other property, ... used in, or to be used in, or
resulting from, the work of extracting such minerals from their natural deposits in
nonliquid form, or if in liquid form, with workers underground, or used in, or to
be used in, the milling ofsuch minerals ..." (emphasis added).

Distribution: (By Certified Mail)
Sean P. Durrant, P.C., Palmerlee & Durrant, LLC, 11 North Main Street, Buffalo, WY 82834
Edward Falkowski, Esq., Office of the Solicitor, U.S. Dept. of Labor, P.O. Box 46550, Denver,
co 80201-65 50
252