SEPTEMBER 1998

COMMISSION DECISIONS AND ORDERS
09-02-98 National Lime & Stone, Inc.
09-04-98 Sec. Labor on behalf of Roscoe Ray Young
v. Lone Mountain Processing, Inc.
09-09:.98 Disciplinary Proceeding
09-09-98 Bailey Sand & Gravel Company
09-16-98 Consolidation Coal Company
09-22-98 Contractors Sand and Gravel, Inc.
09-28-98 Consolidation Coal Company
09-29-98 Sec. Labor & Int'l Chemical Workers Union
v. Asarco, Incorporated
09-30-98 James M. Ray employed by Joumagan Construction

LAKE 98-194-M

Pg. 923

KENT 98-254-D
D
98-1
LAKE · 98-197-M
WEVA94-57
EAJ 96-3
WEVA 97-84-R

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

SE
EAJ

927
940
946
949
960
988

94-362-RM Pg. 1001
Pg. 1014
96-4

ADMINISTRATIVE LAW JUDGE DECISIONS
09-09-98
09-23-98
09-24-98
09-25-98
09-30-98
09-30-98

Newmont Gold Company
Diamond May Mining
Dynatec Mining Corporation
Higman Sand & Gravel, Inc.
Cyprus Emerald Resources, Inc.
Pamela Bridge Pero v. Cyprus Plateau Mining Corp.

i

WEST 98-58-RM
KENT 97-292
WEST 94-645-M
CENT 97-192-M
PENN 94-23
WEST 97-154-D

Pg. 1035 .
Pg. 1050
Pg. 1058
Pg. 1096
Pg. 1102
Pg. 1104

SEPTEMBER 1998

Review was ~anted in the following cases during the month of September:
Bryce Dolan v. F & E Erection, Docket No. CENT 97-24-DM.
(Judge Feldman, August 5, 1998)

No cases were filed in which Review was denied durin~ the month of September:

ii

COMMISSION DECISIONS AND ORDERS

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

September 2, 1998

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

v.

Docket No. LAKE 98-194-M

NATIONAL LIME & STONE, INC.

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

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994).("Mine Act"). On August 13, 1998, the Commission received from National Lime
& Stone, Inc., (''NationaP') a request to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S. C. § 815(a). It has been
administratively determined that the Secretary of Labor does not oppose the motion for relief.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
National submits that, although it timely filed a notice to contest Citation No. 7821909, it
failed to timely file a hearing request to contest the associated penalty proposed by the
Department of Labor's Mine Safety and Health Administration ("MSHA"). It explains that its
late filing of the hearing request was due to a misunderstanding between counsels for National
and the Secretary concerning the need to separately contest the citation and the proposed penalty.
Mot. at 3. National claims that it timely filed a notice of contest of the citation on April 7, 1998,
and one week later requested expedited consideration of the contest case, which had been
assigned to Administrative Law Judge August Cetti. /d at 2. The operator contends that soon
thereafter, the parties reached a settlement regarding the penalty amount, which was then reduced

923

to a written settlement agreement. ld Subsequently, the parties requested and received a stay of
the proceedings pending assessment of civil penalties. Id National claims that on June 9,
MSHA filed a petition proposing a penalty for the citation. ld The operator asserts that the
settlement addressed both the proposed penalty and the citation, and that the settlement "was
filed with the Court for approval on July 2, 1998." ld National contends that it believed that,
because the parties had agreed to a penalty amount and agreed to move for entry of the
settlement, no "green card" needed to be sent, and no separate docket challenging the proposed
penalty assessment had to be established. /d
National states that on or about July 13, 1998, the judge notified the Solicitor's office that
he could not approve the parties' settlement agreement because a separate action challenging the
proposed assessment had not been instituted. /d. Subsequently, National filed its "green card"
contesting the assessment, but MSHA rejected the petition as untimely because it was sent over
30 days after the proposed assessment had issued. /d. National asserts that its failure to file the
"green card" in a timely fashion was due to mistake or inadvertence, and that it is entitled to
relief under Fed. R. Civ. P. 60(b)(1). /d. at 5.
We have held that, in appropriate circumstances and pursuant to Rule 60(b), we possess
jurisdiction to reopen uncontested assessments that have become final under section 105(a).
Rocky Hollow Coal Co. , 16 FMSHRC 1931 , 1932 (Sept. 1994); Jim Walter Resources, Inc., 15
FMSHRC 782, 786-89 (May 1993). We also have observed that default is a harsh remedy and
that, if the defaulting party can make a showing of adequate or good cause for the failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with
Rule 60(b)(1), we previously have afforded a party relief from a final order of the Commission
on the basis of inadvertence or mistake. See Peabody Coal Co., 19 FMSHRC 1613, 1614-15
(Oct. 1997); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997); General Chern.
Corp., 18 FMSHRC 704, 705 (May 1996).
National's motion indicates that it intended to contest Citation No. 7821909 and settle the
related penalty with the Secretary, and that, but for an apparent mutual misunderstanding
between counsel regarding the necessity of challenging the penalty assessment prior to approval
of the settlement, National likely would have contested the proposed penalty. In the
circumstances presented here, National's late filing of a hearing request amounts to inadvertence
or mistake within the meaning of Rule 60(b)(l). See Stillwater, 19 FMSHRC at 1022-23
(granting operator's motion to reopen when operator failed to submit request for hearing to
contest proposed penalty due to lack of coordination between recipient of assessment at mining
facility and its attorneys); Rivco Dredging Corp., 10 FMSHRC 624, 624-25 (May 1988)
(granting operator's petition for review when operator filed notice of contest as to alleged
violations, but was unaware that contest of civil penalty proposals was required).

924

Accordingly, in the interest of justice, we grant National's unopposed request for relief
and reopen this penalty assessment that became a final order with respect to Citation No.
7821909. The case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Marc Lincoln Marks, Commissioner

Theodore F. Verheggen, Com

925

•

Distribution

David Farber, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037
Ruben Chapa, Esq.
Office of the Solicitor
U.S. Department of Labor
230 S. Dearborn St., gth Floor
Chicago, IL 60604
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N. W., Suite 600
Washington, D. C. 20006

926

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

September 4, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ROSCOE RAY YOUNG
Docket No. KENT 98-254-D

V.

LONE MOUNTAIN PROCESSING, INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
DECISION
BY: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
In this discrimination proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), the Secretary of Labor timely filed a
petition for review of Administrative Law Judge Gary Melick's decision dismissing the
application for temporary reinstatement she had filed on behalf of Roscoe Ray Young pursuant to
Section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), and Commission Procedural Rule
45(£), 29 C.F.R. § 2700.45(£). See 20 FMSHRC 862 (Aug. 1998) (ALJ). Lone Mountain
Processing, Inc. ("Lone Mountain"), timely filed its response in opposition. Upon consideration
of all of the submissions,' we grant the petition for review. For the reasons that follow, we
affirm the judge's decision.

I.
Factual and Procedural Back~round
On September 3, 1997, in anticipation of being laid off the next day (September 4) from
his position as a roof bolter at Arch of Kentucky's No. 37 mine, Roscoe Ray Young took a roof
bolting test at Lone Mountain's Huff Creek No. 1 mine as part of the employment application

1

The Secretary moved for leave to file a reply to Lone Mountain's brief in opposition,
attaching her reply brief. Lone Mountain responded in opposition to the Secretary's motion. By
majority vote of the Commission the Secretary's motion is granted, and her reply brief is
accepted for consideration.

927

process. Id. at 862; Tr. 11-12. Later that month, he received a letter from Lone Mountain
informing him that a job offer would not be forthcoming because he had failed to meet the
requirement that he drill a minimum of 51.43 inches per minute during the test. Tr. 44-46; Gov't
Ex. 1. Young claims that he failed to meet the minimum requirement because he encountered
unsafe conditions during the test, conditions he immediately brought to the attention of Gary
Sisk, Lone Mountain's Division Training Coordinator, who was administering the test. 20
FMSHRC at 862; Tr. 38-41 , 50-51.
Young filed a discrimination complaint with MSHA on December 8, 1997, and on July
13, 1998, the Secretary filed a discrimination complaint on his behalf with the Commission in
Docket No. KENT 98-255-D. 20 FMSHRC at 862-63; Tr. 16. Accompanying the complaint
was the temporary reinstatement application, by which the Secretary seeks an order:
directing [Lone.Mountain] to immediately and on an expedited
basis give Young a new roof bolting test under safe conditions and
in the presence of an authorized representative of the Secretary,
applying the same criteria for employment as [were] applicable on
September 3, 1997 and, if successful, to immediately employ him
as a roof bolter at the same rate of pay and with the same or
equivalent duties assigned to him as from September 3, 1997.
Appl. for Temp. Reinst. at 3. Pursuant to Lone Mountain's request in response to the complaint
and application, a hearing·was held before the judge on July 30, 1998.
Following the hearing, Lone Mountain moved to dismiss the application based in part on
the ground that Young was not a "miner" under the Mine Act for purposes of temporary
reinstatement. 20 FMSHRC at 863-64. The judge granted the motion, reasoning that, with
respect to reinstatement, section 105(c)(2) refers only to a "miner," and that the statutory
definition of the term "miner" does not include an applicant for employment. Id. at 864. The
judge was also persuaded by the absence of any reference in the temporary reinstatement
provision to the temi "applicant for employment," in comparison with its appearance eight other
times in section 105(c)(l) and (2). ld. On review, the Secretary seeks reversal of the judge's
decision. S. Pet. at 15.

II.
Disposition
The Secretary urges reversal of the judge's decision on the ground that the temporary
reinstatement remedy in the Mine Act can be reasonably interpreted to apply to applicants for
employment. ld. at 7-8. She contends that the term "miner" is used in connection with that
remedy as a shorthand reference which includes applicants for employment. Id. at 8-10. She
also argues that the legislative history of the statute in general, as well as the specific provisions

928

governing discrimination remedies, supports a construction of the statute extending the right to
temporary reinstatement to applicants such as Young. Id. at 5-6, 10-12.
Lone Mountain submits that the judge's decision should be affinned based on the plain
meaning of the language employed in the Mine Act regarding temporary reinstatement. L.M. Br.
at 2-12. It also claims that the Commission is without jurisdiction to consider Young's
application because the complaint he filed with MSHA was untimely under the tenns of the Mine
Act. Id. at 12-13.
The first inquiry in statutory construction is "whether Congress has directly spoken to the
precise question at issue." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837,842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582,584 (Apr. 1996). Ifastatute
is clear and unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 84243; accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42,- 44 (D.C. Cir. 1990). Deference
to an agency's interpretation of the statute may not be applied "to alter the clearly expressed
intent of Congress." K Mart Corp. v. Cartier, Inc., 486 U.S. 281,291 (1988) (citations omitted).
In ascertaining the plain meaning of the statute, courts utilize traditional tools of construction,
including an examination of the "particular statutory language at issue, as well as the language
and design of the statute as a whole," to detennine whether Congress had an intention on the
specific question at issue. Id; Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal
Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989). The examination to
detennine whether there is such a clear Congressional intent is commonly referred to as a
"Chevron I" analysis. See Coal Employment Project, 889 F .2d at 1131; Thunder Basin, 18
FMSHRC at 584; Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994V
Section 105(c)(2) provides in pertinent part:
Any miner or applicant for employment or representative of
·miners who believes that he has been discharged, interfered with,
or otherwise discriminated against by any person in violati.o n of
this subsection may, within 60 days after such violation occurs, file
a complaint with the Secretary alleging such discrimination .. . .
[I]f the Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement ofthe
miner pending final order on the complaint. If ... the Secretary
determines that the provisions of this subsection have been
violated, he shall immediately file a complaint with the

2

If the statute is ambiguous or silent on a point in question, a second inquiry, commonly
referred to as a "Chevron II" analysis, is required to detennine whether an agency's interpretation
of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Coal Employment Project, 889
F.2d at 1131; Thunder Basin Coal Co., 18 FMSHRC at 584 n.2; Keystone, 16 FMSHRC at 13.

929

Commission, with service upon the alleged violator and the miner,
applicant for employment, or representative of miners alleging
such discrimination or interference and propose an order granting
appropriate relief. The Commission shall afford an opportunity for
a hearing ... and thereafter shall issue an order, based upon
findings of fact, affirming, modifying, or vacating the Secretary's
proposed order, or directing other appropriate relief.... The
Commission shall have authority in such proceedings to require a
person coinrnitting a violation of this subsection to take such
affirmative action to abate the violation as the Commission deems
appropriate, including, but not limited to, the rehiring or
reinstatement of the miner to his former position with back pay and
interest. The complaining miner, applicant, or representative of
miners may present additional evidence on his own behalf during
any hearing held pursuant to [this] paragraph.
30 U.S.C. § 815(c)(2) (emphasis added).
We agree with the judge that the plain meaning of section 105(c)(2) limits application of
the temporary reinstatement remedy to a "miner" who has filed a discrimination complaint, and
that, as an applicant for employment, Young was not a complaining "miner" for purposes of the
Mine Act. Examining the term "miner" as it is used in section 105(c)(2), we look first to the
definition of that term in the Mine Act. See Peabody Coal Co., 18 FMSHRC 686,690 (May
1996) (listing statutory definitions as first source of meaning for terms used in Mine Act). The
definition of"miner" in section 3(g) of the Act does not include applicants for employment as
miners, but instead limits the term to "any individual working in a coal or other mine." 30
U.S.C. § 802(g) (emphasis added). The Secretary has provided us with no explanation of how an
applicant for employment can be considered to be a "miner" under that controlling definition.
Instead, the Secretary argues that the term "miner" is used with respect to the temporary
reinstatement remedy as a shorthand reference to the pronouncement earlier in section 105(c)(2)
that not just miners, but also applicants for employment and miners' representatives, may flle
discrimination complaints. S. Br. at 8-10. However, the language in section 105(c)(2) to which
she directs us does not provide a clear indication that Congress was departing from the plain
meaning of the teim "miner" that Is otherwise provided by statutory definition. This is necessary
before we can even consider adopting the Secretary's interpretation of section 105(c)(2). See
CPSC v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) ("Absent a clearly expressed legislative
intention to the contrary, [the statutory] language must ordinarily be regarded as conclusive.").
Accordingly, we decline to hold that the term "miner" is used as a shorthand reference in the
temporary reinstatement provision to include applicants for employment.
Indeed, a careful reading of the statute contradicts the Secretary's assertion that "miner"
is a shorthand reference for "miner or applicant for employment or representative of miners" in

930

the temporary reinstatement provision of section 105(c)(2). The temporary rei1_1statement clause
is one of only two instances in which "miner" is used as a stand-alone term in section 105(c)(1)
and (2). 3 In section 105(c)(l) and (2), Congress recited versions of the complete phrase +'miner,
applicant for employment, or representative of miners" eight times- in six .instances before
mentioning temporary reinstatement and two instances afterward. We find it highly unlikely that
Congress would recite the complete phrase six conse.cutive times, then use a shorthand reference
in referring to eligibility for the important and extraordinary statutory right of temporary
reinstatement, only to immediately drop use of the shorthand reference and return to reciting the
complete phrase (especially when establishing more mundane procedural formalities, such as
service ofthe Secr~tary's subsequent discrimination complainO. Moreover, in section 105(c)(3),
Congress in fact used the term "complainant" as a shorthand notation for those seeking relief
under section 105(c). This indicates that where Congress wanted to use shorthand, it knew how
to do so without resort to the term "miner." Absent any other indication that Congress, in
specifying the circumstances in which a complaining "miner" could be temporarily reinstated,
intended to depart from the definition of that term it set forth in the Mine Act, we conclude that
the temporary reinstatement remedy does not extend to applicants for employmen~. 4

3

The term "miner" is used once more in section I05(c)(2), in connection with the
"affirmative action" the Commission may order a person found to have violated section 105(c) to
take to abate such a violation. See 30 U.S.C. § 8I5(c)(2). However, Congress was careful to
state that the referenced remedy - "the rehiring or reinstatement of the miner to his former
position with back pay and interest"- is illustrative, and does not limit the range of remedies
the Commission could order upon a fmding of a section 105(c) violation. !d. Consequently,
under section 105(c), the Commission has broad authority to remedy discrimination against
applicants for employment as well as miners when the underlying merits of their cases have been
considered and there have been findings of discrimination.
4

Contrary to suggestions made by the Secretary (S. Pet. at 10-I2), the legislative history
of the Mine Act is·silent regarding whether t)le remedy of temporary reinstatement extends to
applicants for employment, and therefore provides no support for departing from the statute's
definition of"miner." .SeeS. Rep. No. 95-I81 (I977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., Legislative History ofthe Federal Mine
Safety and Health Act of 1977 (I978) ("Legis. Hist."). We also reject the contentions of the
Secretary and our dissenting colleague that references in section I 05(c)(2) and its legislative
history to the Commission's broad "make-whole" authority (see 30 U.S.C. § 815(c)(2); S. Rep.
No. 95-I8I, at 37, Legis. Hist. at 625) provide support for interpreting the temporary
reinstatement remedy to extend to applicants. S. Br. at I2-13; slip op. at 10-Il. The .
extraordinary remedy of temporary reinstatement is treated in the statute separately from the
Commission's make-whole authority. It is also conditioned, not upon a finding of
discrimination, but merely upon a showing that the miner's discrimination complaint is not
frivolous. See 30 U.S.C. § 815(c)(2). The above-cited statutory language and legislative history,
by contrast, relates to the Commission's authority to remedy violations of section I 05(c) once
there has been a finding of discrimination. Any such finding can only be made, however, once

931

Consequently, we affirm the judge's dismissal of Young's temporary reinstatement
application. We emphasize that our decision should in no way be construed as an indication of
our view of the merits of Young's discrimination complaint.5 The Secretary and Young will
have the same opportunity as individuals who have alleged discrimination in other cases to
demonstrate before the judge whether discrimination violative of the Act has been perpetrated
against Young. If they are successful in doing so, the Commission has authority to fashion an
appropriate remedy to make Young whole at that time.6

Young's complaint has been heard on the merits.- Therefore, contrary to the assertion of our
dissenting colleague (slip op. at ll);our decision:that an applicant for employment, such as
Young, is not entitled to temporary reinstatement under section 105(c)(2) should not be
construed as "clos[ing] the door" on the applicant's entitlement to full and complete relief
designed to make him whole. It merely means that such relief is available when a final
determination is made on the applicant's claim of discrimination, rather than at this preliminary
stage of the proceeding.
..
. ....
5

Indeed, because we dismiss Young's application on a purely legal basis, our decision
here is not even an indication of whether his discrimination complaint otherwise meets the
statutory standard for temporary reinstatement of not having been frivolously brought.
6

We decline to address the question of whether Young's complaint to MSHA was timely
under the terms of the Mine Act. See L.M. Br. at 13. That question is not properly before us in
this temporary reinstatement proceeding in which the sole, dispositive issue is whether an
applicant for employment can obtain the remedy of temporary reinstatement. The timeliness of
Young's complaint is an issue that only can be addressed in the separate proceeding arising from
that complaint, which is before the judge in Docket No. KENT 98-255-D.

932

III.
Conclusion
For the foregoing reasons, we affirm the judge's decision dismissing the temporary
reinstatement application.

Theodore F. Verheggen, Co

-

~

d

Robert H. Beatty, Jr., Commissioner

933

Commissi()ner Marks, dissenting:
I would reverse the judge's determination that the Commission lacks jurisdiction over the
question of whether an applicant for employment of a mine J?1ay be temporarily reinstated.as an
applicant under Mine Act section 105(c)(2). That section provides in pertinent part:
Any miner or applicant for employment or representative of
miners who believes that he has been discharged, interfered with,
or otherwise discriminated against by any person in violation of
this subsection may . . . file a complaint with the Secretary alleging
such discrimination. Upon receipt of such complaint, the Secretary
shall forward a copy of the complaint to the respondent and shall
cause such investigation to be made as he deems appropriate. Such
investigation shall commence within 15 days ... , and if the
Secretary finds that such complaint was not frivolously brought,
the Commission, on an expedited basis upon application of the
Secretary, shall order the immediate reinstatement of the miner
pending final order on the complaint. If upon such investigation,
the Secre~ary determines that the provisions of this subsection have
been violated, he shall immediately file a complaint with the
Commission, with service upon the alleged violator and the miner,
applicant for employment, or representative of miners alleging
such discrimination or interfere·nce .... The Commission shall
have authority in such proceedings to require a person committing
a violation of this subsection to take such affirmative action to
abate the violation as the Commission deems appropriate,
including, but not limited to, the rehiring or reinstatement of the
miner to his former position with back pay and interest. The
complaining miner, applicant, or representative of miners may
present additional evidence on his own behalf during any hearing
held pursuant to [this] paragraph.
30 U.S.C. § 815(c)(2) (emphasis added).
When the Commission rev.iews the Secretary's construction of the Mine Act, we are
confronted with two questions. Chevron US. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837,842 (1984). First is the question "whether Congress has directly spoken to the
precise question at issue." !d. If the intent of Congress is unambiguously clear, that is the end of
the matter. Jd. at 842-43. If, however, Congress has not directly addressed the precise question
at issue, the Commission may not simply impose its own construction on the statute. Rather, if
the statute is silent or ambiguous with respect to the specific issue, the question for the
Commission is whether the Secretary's answer is based on a permissible construction of the
statute. ld. at 843.

934

Adhering to this Chevron analysis, I conclude that Congress did not unambiguously
manifest its intent that the remedy of temporary reinstatement applies exclusively to miners and
not to applicants for employment. In fact, section 105(c)(2) would seem to suggest otherwise.
The first sentence of that section enables "any miner or applicant for employment or
representative of miners" to briug a complaint with the Secretary alleging discrimination. The
second sentence provides that "[u]pon receipt of such complaint," the Secretary shall forward the
complaint to the respondent and commence an investigation. 30 U.S.C. § 815(c)(2) (emphasis
added). The third and key sentence states:
Such investigation shall commence within 15 days of the
Secretary's receipt of the complaint, and if the Secretary finds that
such complaint was not frivolously brought, the Commission, on
an expedited basis upon application of the Secretary, shall order
immediate reinstatement of the miner pending final order on the
complaint.

ld. (emphasis added). By using the word "such" to refer back to the complaint of any "miner or
applicant for employment or representative of miners," section I 05(c)(2) suggests that the
complaint of a miner applicant, if not frivolously brought, could be subject to an immediate
temporary reinstatement order.
Having found that Congress was, at the least, ambiguous on this issue, I turn to the
second question under Chevron: whether the Secretary's interpretation is reasonable. Deference
is accorded to "an agency's interpretation of the statute it is charged with administering when
that interpretation is reasonable." Energy West Mining Co. v. FMSHRC, 40 F.3d 457,460 (D.C.
Cir. 1994) (citing Chevron, 467 U.S. at 844). The agency's interpretation of the statute is entitled
to affirmance as long as that interpretation is one of the permissible interpretations the agency
could have selected. Chevron, 467 U.S. at 843; Joy Techns., Inc. v. Secretary of Labor, 99 F.3d
991,995 (10th·Cir. 1996), cert. denied, 117 S. Ct. 1691 (1997).
The Secretary argues that the use of the term "miner" in the third sentence of section
105(c)(2) is a shorthand way of referring back to the three terms "miner," "applicant for
employment," and "representative of miners." S. Pet. at 8-9 & n.1. Additionally, the Secretary
argues that the term "reinstatement" in section 105(c)(2) encompasses reinstatement of an
applicant for employment to the situation he was in before any discrimination occurred. ld. at
10. In support of her position, the Secretary relies on the definitions of"reinstate" that define
the term to mean "to restore to a state or position from which the object or person had been .
removed," and "to replace in an original or equivalent state." Id (citing Black's Law Dictionary
1287 (6th ed. 1990); Webster's Third New International Dictionary 1915 (1993)). The Secretary
asserts that her interpretation is consistent with the legislative history and statutory purpose of
section 105(c). ld. at 4-14.

935

I believe that the Secretary's interpretation is a reasonable and permissible construction of
section 1OS(c). The legislative history on this issue is very clear that section 105(c) is to be
"construed expansively" and that the full range of its remedies apply to miner applicants. S. Rep.
No. 95-181, at 35-37. (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., Legislative History ofthe Federal Mine Safety and Health Act of 1977, at
623-25 (1978) ("Legis. Hist. "). The report of the Senate Committee on Human Resources, the
committee responsible for drafting the Mine Act ("Senate Committee") stated:
Seetion [105(c)] of the bill prohibits any discrimination
against a miner for exercising any right under the Act. It should
also be noted that the class protected is expanded from the current
[Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.
§ 801 et seq. (1976) ("Coal Act")]. The prohibition against
discrimination applies to miners, applicants for employment, and
the miners' representatives. The Committee intends that the scope
of protected activities be broadly interpreted by the Secretary ....

. . . . The wording of section (105(c)] is broader than the
counterpart language in section 110 of the Coal Act and the
Committee intends section [ 105(c)] to be construed expansively to
assure that miners will not be inhibited in any way in exercising
any rights afforded by the legislation. This section is intended to
give miners, their representatives, and applicants, the right to
refuse to work in conditions they believe to be unsafe or
unhealthful and to refuse to comply if their employers order them
to violate a safety and health standard promulgated under the law.
S. Rep. No. 95-18r, at 35-36, Legis. Hist. at 623-24.
Thus, Congress contemplated that applicants for employment could seek relief under the
discrimination provisions of the Mine Act if they were exposed to unsafe work conditions as part
of the application process. This is exactly what has been alleged to have happened here. The
Secretary has alleged that applicant Roscoe Ray Young encountered unsafe roof conditions when
he took a test to be a roof bolter for Lone Mountain, that he complained to the operator's agent of
the unsafe conditions, that given the unsafe conditions he had to work slowly and was unable to
complete the test in the time allotted by the operator, and, as a result, was not offered the roof
bolting job. 20 FMSHRC at 862.
Pursuant to Congressional mandate that the Secretary "rigorously enforce" discrimination
rights (S. Rep. No. 95-181, at 36, Legis. Hist. at 624), the Secretary has initiated this application
for temporary reinstatement of Young to his status of applicant, seeking to give Young a new test

936

under safe conditions. Again, Congress has authorized this·type of broad relief. ' The report of
the Senate Committee provides:
It is the Committee's intention that the Secretary propose,
and that the Commission require, all relief that is necessary to
make the complaining party whole and to remove the deleterious·
effects of the discriminatory conduct indudihg, but not limited to ·
reinstatement with full seniority rights, back-pay with interest, and
recompense for any special damages sustained as a result of the
discrimination. The specified reliefis only illustrative.
·

S. Rep. No. 95-181, at 37, Legis. Hist. at 625 (emphasis added). With this broad ·enforcement
mandate, the Secretary has very reasonably interpreted the temporary reinstatement remedy
provided in section 105(c)(2) to apply to complaints of'appli'cants for employment. It is the
Commission now, who by narrowly interpreting section 105(c)(2), is failing to adhere to
Congressional mandate to require "all relief that is necessary to niake.the complaining party
whole and to remove the deleterious effects ofthe discriminatory conduct." S. Rep. No. 95-181,
at 37, Legis. Hist. at 625.
In addition, Congress made clear that this Commission was to construe the discrimination
provisions under the Mine Act liberally, in a way so as to further the safety goals of the Act. The
report of the Senate Committee expressly approved the judicial interpretations· of the Coal Act
discrimination provision that were contained in Munsey·v. Morton,'_507 F .id ·1'202 (D. C. Cir.
1974) and Phillips v. lnteri01·Board Of Mine Operations Appeals, SOO F.2d 772 (D.C. Cir.
1974). S. Rep. No. 95-181, at 36, Legis. Hist. at 624. Both of those cases emphasized that the
discrimination provisions contained in the Coal Act, the predecessor to the Mine Act, were of a
remedial nature and as a consequence were to be liberally construed to enable achievement of
legislative objectives. Munsey, 507 F.2d at 1210-11; Phillips,' 500 F.id·at 781-·83. Construing
section 105(c)(2) ljberally, as we are required to do by its remedial nature, leads to one
inescapable conclusion: that this Commission has jurisdiction over the Secretary' s proposed
application for temporary reinstatement in this case.
Finally, the Senate Committee was also "aware'that mining often takes place in remote
sections of the country, and in pl~ces where work in the ·mines offers the only real employmeht ·· · ·
opportunity." S. Rep. No. 95-181, at 35, Legis. Hist. at 623. ·For this reason, it is essehtial that
applicants for mining positions be protected from any unsafe working cohditions and be able· to
bring cases for immediate relief should discrimination occur; Unfortunately, the CoJ.!liilissioii, by
its decision today, has closed the door on an important remedy that could have protected
··
applicants from unsafe conditions or discriminatory behavior.
.
·. ·' . ·
For these reasons, I cannot join the majority and l dissent. I would remand to the'judge to
determine whether the Secretary's complaint has been frivolously brought puismmt to Mh}e Act
.: .
'·

937

section 105(c)(2) and to address Lone Mountain's assertion that applicant Young's complaint
was not timely.

Marc Lincoln Marks, Commissioner

938

Distribution

Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Marco Rajkovich, Jr., Esq.
Wyatt, Tarrant & Combs
Lexington Financial Center, Suite 1700
250 West Main Street
Lexington, KY 40507
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

939

-

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

September 9 , 1998

DISCIPLINARY PROCEEDING

Docket No. D 98-1

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

DECISION
BY THE COMMISSION:
This disciplinary proceeding arises under Rule 80 of the Commission's Procedural Rules,
29 C.F.R. § 2700.80. 1 On August 19, 1998, a Commission administrative law judge referred to

1

Commission Procedural Rule 80 provides in pertinent part:
(a) Standards of conduct. Individuals practicing before the
Commission and Commission Judges shall conform to the standards of ethical conduct required of practitioners in the courts of
the United States.
(b) Grounds. Disciplinary proceedings may be instituted
. against anyone who is practicing or has practiced before the Commission on grounds that such person has engaged in unethical or
unprofessional conduct; has failed to comply with these rules or an
order of the Commission or its Judges; has been disbarred or
suspended by a court or administrative agency; or has been disciplined by a Judge under paragraph (e) of this section.
(c) Discipljnary proceedings shall be subject to the following procedure:
(1) Disciplinazy referral .... [A] Judge or other person
having knowledge of circumstances that may warrant disciplinary
proceedings against an individual who is practicing or has practiced before the Commission shall forward to the Commission for
action such information in the form of a written disciplinary referral. ...
(2) Inquizy by the Commission. The Commission shall
conduct an inquiry concerning a disciplinary referral and shall
d~termine whether disciplinary proceedings are warranted. The
Commission may require persons to submit affidavits setting forth

940

the Commission a matter which the judge believed may warrant disciplinary proceedings. The
substance of the referral concerned guilty pleas entered by the representative of an operator in
civil penalty proceedings to criminal violations of mandatory safety and health standards as well
as to provisions of Title 18 of the United States Code. On the grounds explained below, we
conclude that disciplinary proceedings are not warranted at this time and we dismiss without
prejudice the disciplinary referral.
This matter arises in c01mection with a civil penalty proceeding, Durbin Coal, Inc.,
Docket No. WEV A 98-65, that is currently pending before Administrative Law Judge William
Fauver. In that proceeding, the operator contested various aspects of three MSHA civil penalty
assessments on March 26, 1998. Contest of Civil Penalties, Ex. A. On May 5, the Secretary
filed a Petition for Assessment of Civil Penalty as well as discovery. On June 1, an Answer to
Discovery Request and Answer to Petition for Assessment of Penalty were filed on behalf of
Durbin Coal, Inc. ("Durbin") by Connie J. Prater, "Consultant," on the letterhead of"Pra-Mac
Enterprises Inc."
On June 15, 1998, the Secretary filed a Motion to Strike and Motion for Default, in which
the Secretary asked the judge to strike the answers filed by Prater and to then find Durbin in
default, or in the alternative for an order requiring Prater to "explain the manner by which she has
satisfied the requirements of29 C.F.R. § 2700.3."2 S. Mot. to Strike and Mot. for Default at 3.

their knowledge of relevant circumstances. If the Commission
determines that disciplinary proceedings are not warranted, it shall
issue an order terminating the referral.
(3) Transmittal and hearin2. Whenever, as a result of its
inquiry, the Commission, by a majority vote of the full Commission or a majority vote of a duly constituted panel of the Commission, determines that the circumstances warrant a hearing, the
Commission's Chief Administrative Law Judge shall assign the
matter to a Judge, other than the referring Judge, for hearing and
decision....
29 C.F.R. § 2700.80.
2

Commission Procedural Rule 3, entitled "Who may practice," provides in pertinent

part:
(a) Attorneys. Attorneys admitted to practice before the
highest court of any State, Territory, District, Commonwealth or
possession of the United States are permitted to practice before the
Commission.
(b) Other persons. A person who is not authorized to
practice before the Commission as an attorney under paragraph (a)

941

By filings dated June 22 and June 29, 1998, the Secretary supplemented and amended her
motion. Attached to the motion, as amended and supplemented, was a copy of a criminal
infonnation filed on January 12, 1995, by the United States Attorney in the United States District
Court for the Eastern District of Kentucky. S. Mot. to Suspend Discovery and Mot. to Supplement, Addendum to Ex. B. The infonnation alleged that Prater willfully violated 30 C.F.R.
§§ 70.201, 70.207 and 70.208, as well as Mine Act section 110(d),3 30 U.S.C. § 820(d), the
criminal penalty provision of the Mine Act, by submitting to MSHA on behalf of various mines
respirable dust samples that "were fabricated outside of the mines or were otherwise not taken in
accordance with the requirements of the Mine Safety Act." Jd. at 1-2. Exhibit B to the Secretary' s motion to strike was a judgment in United States v. Prater, Case No. 95-2-1 (E.D. Ky.),
entered against Prater on April 19, 1995, for violation of 30 U.S.C. § 820(d) based on her plea of
guilty to the infonnation. Also attached to the motion was a copy of a judgment in United States
v. Pra-Mac Enterprises, Case No. 94-26-S-1 (E.D. Ky.), entered against Pra-Mac Enterprises
("Pra-Mac") on April 18, 1995, for violation of 18 U .S.C. §§ 2 and 100 I based on its pleas of
guilty to "count two of superseding indictment." S. Mot. to Strike and Mot. for Default, Ex. A.
The indictment was not attached, but the offense is described in the judgment as "Willfully &
knowingly falsify, conceal, & cover up & cause to be falisified [sic], concealed & covered up,
material facts by submitting fraudulent respirable dust samples to [MSHA]; Aiding and Abetting[.]"4

of this section may practice before the Commission as a
representative of a party if he is:
(1) A party;
(2) A representative of miners;
(3) An owner, partner, officer or employee of a party when
the party is a labor organization, an association, a partnership, a
corporation, other business entity, or a political subdivision; or
(4) Any other person with the permission of the presiding
judge or the Commission.
29 C.F.R. § 2700.3 (emphasis supplied).
3

Section 110(d) subjects to criminal punishment "[a]ny operator who willfully violates a
mandatory health or safety standard .... " 30 U.S.C. § 820(d).
4 18 U.S.C. § 1001 states:
Whoever, in any matter within the jurisdiction of any
department or agency of the United States knowingly and willfully
falsifies, conceals or covers up by any trick, scheme, or device a
material fact, or makes any false, fictitious or fraudulent statements
or representations, or makes or uses any false writing or document
knowing the same to contain any false, fictitious or fraudulent
s~tement or entry, shall be fined under this title or imprisoned not
more than five years, or both.

942

In her motion, the Secretary complained that Durbin had failed to comply with Rul~ 3 of
the Commission's Procedural Rules. S. Mot. to Strike and Mot. for Default at 1. The Secretary
asserted that Prater is not an attorney admitted to practice in Kentucky or West Virginia, and that
she is not otherwise authorized to practice before the Commission under Rule 3. /d. at 1-2. The
Secretary noted the guilty pleas of Prater and Pra-Mac and suggested that "the judge withhold
pern1ission for Connie Prater to represent Respondent or any other party before the C_ommission." S. Amend't to Mot. to Strike and Mot. for Default at 1-2. She also argued that pet:rnission
for Prater to represent Durbin should be denied because "Pra-Mac Enterprises Inc., the representative of Durbin Coal Incorporated through Prater ... , pled guilty to a crime of moral turpitude
implicating its tendency for truthfulness, and, thus, the judge and the Secretary have reason to
question the reliability of any assertions in its pleadings." /d. at 2. In addition, the Secretary
contended that, given Rule 80's authorization of disciplinary proceedings against an individual
"who is practicing or has practiced before the Commission on grounds· that such person has
engaged in unethical or unprofessional conduct," the judge should not permit Prater to enter her
appearance pursuant to Rule 3. I d. at 2 n.l *.
The firm of Patton Boggs, L.L.P. entered its appearance on behalf of respondent Durbin,
and on July 1, 1998, filed Durbin's opposition to the Secretary's motion. Durbin asserted that it
authorized Prater in writing to act as its agent in filings with MSHA and that she has submitted
"dozens of plans and other documents to MSHA on behalf of Durbin." D. Opp' n at 3. Durbin
stressed that the guilty pleas of Prater and Pra-Mac were the result of a plea bargain. ld. at 4, 6.
It denied that either defendant was guilty of a crime of moral turpitude. !d. In explanation of
Prater's failure to seek permission to practice before the Commission, Durbin stated that she was
told by MSHA officials that she did not need to obtain counsel to contest citations on behalf of
her clients. ld. at 4-5. Durbin also asserted that Prater entered appearances in the past by "filing
Answers before the Commission in exactly the same way she did in this case, and those
appearances have been routinely accepted without comment." Jd. at 5. Durbin argued that the
Commission has routinely accepted the appearance of non-attorneys under Rule 3, and that an
investigation of the background of applicants under that rule would be inappropriate. /d. at 6.
Durbin also contended that any inappropriate conduct may only be examined pursuant to a
disciplinary referral under Rule 80. /d. at 7. In this connection, Durbin suggested that the judge
consider referring to the Commission under Rule 80 alleged misconduct of the Solicitor,
consisting of his asserted "misreading of the law, and other unsubstantiated or wrong claims," as
well as his alleged failure to "checkO his facts" and his purported "slander[ of Prater's] reputation and integrity." ld. at 7-9. Durbin asserted that, under Rule 80, only misconduct occurring in
the litigation before the Commission, and not a representative's past conduct, has been a pasis for
a disciplinary proceeding before the Commission. I d. at 8. Durbin requested that Prater be
allowed to represent it in the civil penalty proceeding. I d.
To date, the judge has not ruled on the Secretary's motion to strike or Durbin's motion
under Rule 3 to permit Prater to represent it. On August 18, 1998, the judge made the instant
disciplinary referral, attaching the criminal information and judgments submitted by the Secretary
in the civil penalty proceeding. According to the judge, those documents "contain information

943

that may warrant disciplinary proceedings against Connie Prater, who practices before this
Commission." Disc. Referral at 1.
In our view, this disciplinary referral is premature. Because the referral was made before
the completion of the underlying proceeding, the civil penalty docket continues before the judge.
Under Rule 3(b)(4), non-attorneys and individuals not described in subsections (b)(1) through
(b)(3) are required to obtain permission from the presiding judge or the Commission to practice
before this agency. The judge has yet to rule on Durbin's request under Rule 3 that Prater be
allowed to represent it. Thus, it has yet to be determined whether Prater will be practicing before
the Commission in the matter that gave rise to this referral. Depending on the outcome of
Durbin's request to permit Prater to practice, the Rule 80 proceeding may become moot. In any
event, we conclude it is unwise for the disciplinary proceeding to continue while the Rule 3
question is still pending, given the possibly overlapping nature of the two matters.
Accordingly, we terminate this disciplinary referral without prejudice, and express no
opinion on whether Prater's guilty pleas warrant disciplinary proceedings under Rule 80.

,.

ames C. Riley, Commissioner

Theodore F. Verheggen, Commis

944

-

.-.-:-.·
"::.; ·. :·

Distribution

Connie Prater, Consultant
Durban Coal, Inc.
2057 KY Rt. 850
David, KY 41616
Carl Kirk
Durbin Coal, Inc.
2901 Mayo Trail
Catlettsburg, KY 41129
Henry Chajet, Esq.
David Farber, Esq.
Patton Boggs, LLP
2550 M Street, N. W.
Washington, D.C. 20037
YusufMohamed, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 516
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike,_Suite 1000
Falls Church, VA 22041

945

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

September 9, 1998
SECRETARY OF LAB.OR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)

v.

Docket No. LAKE 98-197-M
A.C. No. 20-03036-05502

BAILEY SAND & GRAVEL CO.

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

ORPER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977,30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On August 17, 1998, the Commission received from Bailey
Sand & Gravel Co. ("Bailey") a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). It has
been administratively determined that the Secretary of Labor does not oppose the motion for
relief filed by Bailey.
Under section 105(a) ofthe Mine Act, an operator has 30 days following receipt ofthe
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, Bailey requests relief from the final order, but offers no explanation of the
reasons for its failure to avoid entry of the final order. We have held that, in appropriate
circumstances and pursuant to Fed. R. Civ. P. 60(b), we possess jurisdiction to reopen
uncontested assessments that have become final by operation of section ~05(a). See, e.g., Del
Rio, Inc., 19 FMSHRC 467, 467-68 (Mar. 1997) (remanding fmal order when operator
inadvertently misfiled hearing request card); RB Coal Co., 17 FMSHRC 1110, Ill 0-11 (July
1995) (remanding final order when operator misplaced hearing request card); Rocky Hollow Coal
Co., 16FMSHRC 1931, 1932(Sept.I994). Wealsohaveobservedthatdefaultisaharsh
remedy and that, if the defaulting party can make a showing of adequate or good cause for the

946

failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In
accordance with Rule 60(b)(1), we previously have afforded a party relief from a final order of
the Commission on the basis of inadvertence or mistake. See Peabody Coal Co., 19 FMSHRC
1613, 1614-15 (Oct. 1997); Kinross Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept.
1996); General Chern. Corp., 18 FMSHRC 704,705 (May 1996).
On the basis of the present record, we are unable to evaluate the merits of Bailey's
position. In the interest of justice, we remand the matter for assignment to a judge to determine
whether Bailey has met the criteria for relief under Rule 60(b). If the judge determines that such
relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.
·

•
Marc Lincoln Marks, Commissioner

<:::::::::2.
Robert H. Beatty, Jr.,.Commis ·oner

947

Distribution
Jerald W. Bailey
Bailey Sand & Gravel Company
1060 Toro Drive
Jackson, MI 49201
Sheila Cronan, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.? Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

948

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

September 16, 1998

SECRETARY OF LABOR,
MINE SAFETY AND H~ALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEV A 94-57

CONSOLIDATION COAL COMPANY

BEFORE: Jordan, Chairman; Marks, Riley, and Verhcggen, Commissioners'
DECISION
BY: Jordan, Chairman ~ Marks, and Riley, Commissioners
In this civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977,30 U.S.C. § 801 et seq. (1994) ("Mine Act"), the Secretary ofLabor has sought review of
Administrative Law Judge David Barbour's determination that a violation of ~0 C.F.R.
§ 75.110 1-23(a)2 by Consolidation Coal Company ("Consol") was not significant and substantial
("S&S").3 18 FMSHRC 1189 (July 1996) (ALJ). The Commission granted the Secretary's

1

Commissioner Beatty recused himself from this matter and took no part in its
consideration.
2

Section 75.1101 -23 (a) provides in part:
Each operatqr of an underground coal mine shall adopt a
program for the instruction of all miners in the location and use of
fire fighting equipment, location of escapeways, exits, and routes
of travel to the surface, and proper evacuation procedures to be
followed in the event of an emergency.

30 C.F.R. § 75.1101.23(a).
3

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

949

petition for discretionary review. For the reasons that follow, we vacate the judge's S&S
determination, and remand for further consideration.

I.
Factual and Procedural Background
Consol engages .in Iongwall mining at the Blacksville No. 2 Mine, an underground coal
mine in Monongalia County, West Virginia. 18 FMSHRC at 1190, 1191. On March 15, 1993,
there were two fire detection systems in the belt entry of the 16-M longwall section of the mine:
a heat sensor system. and a carbon monoxide ("CO") detector system. /d. at 1194. A CO sensor
was installed at the belt drive, another at the regulator. and one every I 000 feet along the beltline
toward the face, which was approximately 40 blocks4 from the mouth of the section. Tr. 30-3 L
63-65, 350-52; Gov't Ex. 2. The CO monitoring system on the 16-M section was pat1ially
installed, in that a final sensor and an outstation had yet to be installed. 18 FMSHRC at 1195,
1208-09.
The 16-M beltline was ventilated by two splits of air. Tr. 966-68. One air current flowed
outby from the longwall face, down the beltlinc until it entered the return at the regulator. Tr. 7273, 967. The other air current flowed from the transfer point inby through a box check,5 over the
belt drive, through a second box check, and into the regulator. Gov' t Ex. 3; Tr. 72-73,966-67.
The 17-M longwall section was inby the 16-M section in terms of ventilation. 18 FMSHRC at
1216.
On March 15, 1993, Danny Ammons, a miner in charge of the 16-M belt transfer area,
traveled to the belt tailpiece to take slack out of the belt. /d. at 1202. When he stepped through
the first of two airlock doors located at the box check near the belt drive, he noticed smoke and
haze around the belt. /d. at 1203. When he opened the second door, he observed more smoke
and a sudden flare of flames. /d. Ammons called the tipple to report the fire. !d.
After receiving Ammons' call, the miner at the tipple reported the fire to Gary Kennedy,
who was in charge of the 16-M headgate, and to Kenny Stewart, the mine's dispatcher. !d. at
1196, 1201-02. While Kennedy was speaking with the tipple man, the heat sensor alarm at the
tailpiece activated, confirming the occurrence of the fire on the beltline. /d. at 1196. Kennedy
turned off the alarm, disconnected the power at the longwall face, and telephoned Ronald Griffin,
the shieldman on the section, and informed him that there was a fire on the belt drive and to
assemble the crew members at the headgate. ld at 1197, 1198-99.

4

One block is equivalent to approximately 90 to 100 feet. Tr. 176-77,273.

5

A box check is a stopping containing doors and an opening for the belt, which restricts

air flow. Tr. 36.

950

Dispatcher Stewart activated flashing lights above the mine telephones in the 16-M and
17-M sections, and contacted Mine Superintendent John Straface, and Assistant Superintendent
Samuel McLaughlin, among others, and informed them of the fire. !d. at 1190, 1202, 1223.
Superintendent Straface ordered Robert Welch, a foreman who was coordinating with the
dispatcher, to take charge ofthe situation. !d. at 1190, 1217, 1220. Welch told the dispatcher to
turn on other emergency lights and to send a water car to the area. /d. at 1218. Assistant
Superintendent McLaughlin traveled to the site of the fire. !d. at 1222-23.
At approximately the time that Ammons had discovered smoke and flames on the
beltline, Tim Nester, the 16-M foreman, noticed the 16-M belt slowing and coming to a stop. ld
at 1204. About the time that the belt stopped, Nester observed smoke coming through the box
check near the regulator, and down the return to the regulator. !d. He then saw Ammons. and
the two travekd down the track entry and back to the box check near the belt drive. Tr. 313-15.
Nester and Ammons put on sell~ rescue devices and walked through the set of airlock doors in the
box check. 18 FMSHRC at 1203, 1204. Nester and Ammons observed that one of the sprays of
the fire suppression system was spraying water and that there were no flames.(• /d. Nester
walked up the left side of the belt to the box check near the regulator, walked throu·gh the box
check, looked up the belt, crossed the belt, walked through the door on the other side. and walked
back to the belt drive. 18 FMSHRC at 1204; Tr. 316-17. Nester called Mine Superi ntendent
Straface and told him that the tire was out and that "everything was okay." 18 FMSI-IRC at 1204.
Meanwhile, after receiving Headgateman Kennedy 's call, Shieldman Griffin, Shear
Operator Harold Zupper, .J r., and Harold McClure, the shear operator's helper. left the face and
met Kennedy at the head gate. ld at 1 197, l 199, 120 I. Kennedy and the crew members
discussed the route they would take to evacuate. !d. at 1197. Kennedy noticed that Gerald
Freeland, the 16-M longwall coordinator, was missing, and Kennedy left to go find him. !d. at
1197, 1199; Tr. 162. During this time, Foreman Welch spoke with the crew members by
telephone, instr.ucting them to gather together. 18 FMSHRC at 1199, 1230. Zupper telephoned
Welch to inform him of the route that they would be taking to evacuate. !d. at 1199, 1200; Tr.
221-22. Welch informed him that the fire was out, and that the crew should stay together on the
section. 18 FMSHRC at 1199-1201, 1219. The crew remained on the 16-M section and did not
evacuate the mine. !d. at 11 99, 1200. In addition, miners were not evacuated from the 17-M
section of the mine. !d. at 1230.

6

The exact duration of the fire is disputed. Ammons estimated that the fire lasted for
approximately three minutes. Tr. 296; see also Tr. 690, 840-4I(Consol's witnesses' testimony
regarding the brief duration of the fire). Inspector Shriver testified that the CO monitor print-out
indicated that there had been enough CO to activate the alarm from 11 to 17 minutes. Tr. 375,
416-17. Consol's expert, Donald Mitchell, testified that the fire was of a short duration, lasting
approximately three minutes, and explained that the high CO reading was a by-product of the
wetness of the wood, belting and coal in the area of the fire, and the CO collecting at a point in
the ceiling above the belt where the airflow was restricted and the CO sensor was located. Tr.
961-62,981-88,1017-1019.

951

-

On March 17, miner representatives informed Spencer Shriver, an inspector with the
Department of Labor's Mine Safety and Health Administration ("MSHA"), of the circumstances
surrounding the fire. /d. at 1206. Inspector Shriver relayed the information to Richard
McDorman, an MSHA inspector who regularly inspected the mine. !d. at 1210. Inspectors
Shriver and McDorman investigated the incident. !d. As a result of the investigation, the
inspectors issued four orders, including the order alleging an S&S and unwarrantable violation of
section 75.110 l-23(a) for Consol's failure to evacuate miners from the 16-M and 17-M sections
of the mine after the beltl~ne fire. !d. at 1190. In addition, a special investigation of the fire
resulted in the issuance of orders under section llO(c) of the Mine Act, 30 U.S.C. § 820(c), to
Foreman Welch, Superintendent Straface, and Assistant Superintendent McLaughlin for their
conduct related to the alleged violation of section 75.11 01-23(a). !d. at 1190-91.
Consol, Welch, Straface. and McLaughlin challenged the orders and the matter proceeded
to hearing before Judge Barbour. ld at 1191. At the hearing, the parties settled three of the four
orders issued to Consol, leaving at issue only the order alleging a violation of section 75.11 0123(a). ld at 1244-45. In addition, the Secretary moved to dismiss the section 11 O(c) allegations
against McLaughlin, and the judge granted the motion. ld at 1238-39.
As to the remaining orders. the judge concluded that Consol had violated section
75.1 l 0 l-23(a), that the violation was not S&S. although it was caused by Consol's unwarrantable
failure, and that Welch and Straface were individually liable for the violation. Jd at 1229-37,
1239-44. The judge based his S&S determination on his finding that the Secretary had failed to
prove that there was a reasonable likelihood that the three hazards contributed to by the violation,
that is, fire intensification, fire rekindling, and suffocation by smoke and fumes, would result in
injury. ld. at 1233-34: The judge first reasoned that it was not reasonably likely that the fire at
the belt drive would intensify if normal mining conditions had continued because the fire was
either out when the miners on the 16-M and 17-M sections had not been withdrawn or was
extinguished shortly thereafter. ld at 1233. Second, he explained that, even if the fire had
rekindled up the belt, it was not reasonably likely that the tire would result in injury because
there were heat sensors and CO monitors along that belt that would have detected the presence of
another fire, and made its rapid extinguishment likely. /d. Finally, the judge concluded that,
given the mine's ventilation system, it was not reasonably likely that the smoke and fumes would
have gone to the face, suffocating miners. !d. at 1233-34. Although he concluded that the
violation was not S&S, the judge _determined that it was very serious and assessed a civil penalty
of $4,000, rather than the penalty of $5,000 proposed by the Secretary. !d. at 1238.
The Secretary filed a petition for discretionary review, challenging the judge' s S&S
determination, which the Commission granted.

952

II.
Disposition
The Secretary argues that the judge erred in finding that Consol's violation of section
75.110 l-23(a) was not S&S. First, she contends that the judge failed to apply the correct legal
standard for detem1ining whether a violation is S&S. 7 S. Br. at 9-13. Specifica.lly, the Secretary
asserts that the judge erred in relying upon his finding that the fire was extinguished quickly, and
that the correct question was not whether the fire was in fact extinguished quickly but, whether in
all of the circumstances, it was reasonably likely that it would be extinguished quickly. !d. at 1113. Second, the Secretary argues that the judge erred by failing to address or inadequately
addressing material evidence that established the violation as S&S, and erred by relying upon
evidence relating to the fire detection, fire suppression, and ventilation systems which the court
in Buck Creek Coal Co. v. FMSHRC, 52 F.3d 133. 135 (7th Cir. 1995), determined was improper
for consideration. /d. at 13-19. The Secretary requests that the Commission vacate the judge's
S&S determination and remand for analysis of all relevant evidence under the correct standard.
ld. at 19.
Consol responds that the judge correctly determined that the violation was not S&S. C.
Br. at 10. lt·argues that the judge was correct in considering the rapid extinguishment ofthe fire
because the failure to evacuate after a brief fire did not pose the hazards associated with active
f-ires of greater duration and intensity. /d. at 13-14. In addition, Consol contends that the judge
addressed all material evidence and that the Secretary is, in effect, requesting that the
Commission reweigh the evidence. /d. at 9. 20, 24. It asserts that Buck Creek is distinguishable
from the present case and that the judge did not err in considering the existence of the safety
measures in place. !d. at 15-16. Accordingly, Consol requests that the Commission affirm the
judge's S&S determination. /d. at 24-25.
In assessing the reasonable likelihood of injury to miners who had not been evacuated
from the mine, the judge considered, among other things, the risk of harm posed by the potential
.of the extinguished fi~e to rekindle a new fire along the belt line. The judge concluded that there
was no risk of injury because, even if burning embers from the original fire had rekindled a fire
further up the belt line, the heat sensors and CO monitors along that belt would have detected the
presence of another fire and made its rapid extinguishment likely. 18 FMSHRC at 1233.

7

In her petition for discretionary review, the Secretary argues that when a violation
causes conditions which have the potential for resulting in catastrophic results for miners, the
Secretary's burden for establishing the likelihood of injury should be substantially less. PDR at
10. The Secretary did not address this argument in her brief. Accordingly, because the Secretary
abandoned the argument, we need not reach it. RNS Servs., Inc., 18 FMSHRC 523, 526 n.6 (Apr.
1996).

953

Assuming arguendo that a judge may properly consider a mine's fire detection and fire
suppression system as factors mitigating the hazards associated with a mine fire, the judge erred
when he relied on the systems here to discount the likelihood ofharm from a rekindling fire. In
reaching his conclusion the judge ignored evidence that the heat sensor system, which activates
the fire suppression system and had been damaged during the fire, had been turned off after the
fire and had not been turned on until the midnight shift on March 16. Tr. 68, 3 78-79, 507, 101012. In addition, the judge fai led to address testimony that the CO sensor at the regulator had been
placed at an incorrect location so that it would have failed to detect any fire between the belt
drive area and the regulator inby the belt drive area. Tr. 354. 356, 378. 434-35, 483. The judge
also failed to address evidence that there had been a programming error with the CO sensor
located at the belt drive so that there may have been no CO monitoring at the belt drive between
March 15 and March 23. Tr. 379-81,387,424-26,432-33.
In light of this evidence, it was unreasonable for the judge to conclude that the presence
or these systems eliminated the risk of harm from a lire that might rekindle up the bel t line. We
therefore vacate the judge's S&S determination and remand lor the judge to reconsider whether
there was a reasonable likelihood that the hazard of rekindling a fire would result in injury.
On remand. the judge shall set forth his findings on the likelihood of rekindling occurring
outby the belt drive. where the belt had been damaged (Tr. 297, 746-47, 868-69) and the
direction in which the belt had been moving (Tr. 59-61; Gov't Ex. 3, 5; I 8 FMSHRC at 1193).
In addition, the judge shall not consider evidence of Consol's fire detection and fire suppression
systems as factors mitigating the hazard.B

8

In light of our disposition of this issue, we do not address the Secretary's argument that
the court's decision in Buck Creek, 52 F.3d at 135, precludes a judge from ever considering
evidence of a mine's fire detection, fire suppression, and ventilation systems in making an S&S
determination. S. Br. at 17-19. Furthermore, as there was not a majority of Commissioners who
either agreed or disagreed with any of the other points of error raised by the Secretary in this
appeal, with one minor exception, we do not address them. As to that exception, we conclude
that the judge did not err in failing to rely upon evidence of fires at other mines.

954

III.
Conclusion
For the foregoing reasons, we vacate the judge's determination that Consol's violation of
section 75.110 l-23(a) was not S&S and remand for further consideration consistent with this
decision.

Marc Lincoln Marks, Commissioner

955

•

Commissioner Verheggen, dissenting:
I disagree with the result my colleagues reach. Rather than order a remand as they do, I
would affirm as supported by substantial evidence the judge's determination that Consol's
violation of section 75.1101-23(a) was not S&S. I therefore dissent.
l.

Rapid extinguishment of the fire

I disagree with the Secretary's argument that the judge erred in relying upon his finding
that the fire was extinguished quickly in making his S&S determination. See S. Br. at 11-1 3;
PDR at 12. In Lion Mining, the Commission held that "an S&S determination must be based on
the particular facts surrounding the violation.'· 18 FMSHRC 695. 699 (May 1996). Here, the
violation at issue was the failure to evacuate miners in accordance with the mine's evacuation
plan after the belt entry tire had ignited and been extinguished. Rapid extinguishment of the fire
was one of the particular facts surrounding the violation that had an important bearing on the
likelihood that injury was reasonably li kely to result to miners remaining in the mine.
2.

fire detection. fire suppression. and ventilation svstems

Citing the Buck Creek decision of the Seventh Circuit (52 f.3d at 135), and Commission
cases following it, the Secretary argues that the judge erred in relying upon the presence of tire
detection. fire suppression, and venti lation systems as support for his conclusion that the
violation was not S&S. S. Br. at 13-19. I find Buck Creek and its progeny distinguishable,
however, because those decisions involved accumulations where the tocus is on whether a
confluence of factors exists to create an ignition or explosion in the f-irst instance. See Buck
Creek, 52 F.3d at 134; Amax Coal Co., 18 FMSHRC 1355, 1359 n.8 (Aug. 1996); A max Coal
Co., 19 FMSHRC 846,849-50 (May 1997). The focus here, however, where an evacuation
violation is at issue, is on the reasonable likelihood of injury to miners who had not been
evacuated from the mine after an ignition had occurred and been extinguished. The mine's fire
detection, fire suppression, and ventilation systems are clearly relevant to such a determination
because they could affect whether a·secondary fire would be of a limited nature and readily
contained, and whether smoke and fumes would migrate to miners remaining in the mine.
3.

Consideration of material evidence

The Secretary also argues that the judge erred by failing to address or by inadequately
addressing material evidence that she asserts proved that the violation was S&S. S. Br. at 13-17.
Specifically, she points to evidence relating to fires at other mines where miners had not been
evacuated, and the hazards of fire intensification, suffocation from smoke and fumes, and fire
rekindling. !d. I begin by noting that "[i]t would be inappropriate for the Commission to
reweigh the evidence in. [any] case.or to enter de novo fmdings based on an independent
evaluation of the record." Island Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993). When
reviewing an administrative law judge's factual determinations, the Commission is bound by the

956

terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(l).
"Substantial evidence" means '"such relevant evidence as a reasonable mind might accept as
adequate to support [the judge's] conclusion."' Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (Nov. 1989). In this case, I find that, in general, the judge properly weighed the
evidence, and that, more importantly, his S&S determination is amply supported by the record.
I agree with my colleagues "that the judge did not err in failing to rely upon evidence of
fires at other mines." Slip op. at 6 n.8. Contrary. to the Secretary's assertions, the judge
considered evidence resarding fires at other mines where miners had not been evacuated. See
I 8 FMSHRC at 1196, 1210-11 . Nor did he err in declining to give this evidence any weight
when making his S&S determination because the Secretary failed to demonstrate the similarity in
circumstances between those fires and the fire here. for instance, MSHA Inspector Raymond
Strahin testified that during the tire ell the Marianna Mine. the fire suppression devices were not
operational and the fire burned out of control. Tr. 50-51. 89-90. In contrast, here there can be no
dispute that the fire never approached being out of control. See Tr. 981-82 (testimony of Donald
Mitchell, Consol's expert. that here, ..there was hardly any tire," and what fire there was was of
short duration and low intensity). The fire at the Blacksville One mine also differed markedly
from the fire at issue here. The Blacksville One fire ignited in a track entry, rather than a belt
entry, which would have atTectcd the manner in which smoke migrated to areas where miners
remained. Tr. 53-55, 95: see C. Br. at I 9 n.6.
l also tind that the judge did not err by failing to address the Secretary's evidence
regarding the possibility of the fire intensifying. Such evidence regarding the potential nature of
the fire was irrelevant to the judge's determination in view ofhis finding that "[t]he.fire either
was out when the miners on the 16-M and 17-M [sections] were not withdrawn or was
extinguished shortly thereafter." 18 FMSHRC at 1233. Nor do I find in error the manner in
which the judge addressed evidence regarding the effect of the mine's ventilation on the smoke
and fumes resulting from the fire. Contrary to the Secretary's asser1ions, the judge made direct
reference to MSHA Supervisory Engineer Harry Verakis' testimony that smoke and gases could
have leaked into adjacent entries. ld. at 1212-13. The judge specifically discredited such
testimony, however, and credited the testimony oflnspector McDorman and Consol's expert,
Donald Mitchell, that the ventilation system would have carried smoke and toxic fumes away
from the section and out the return. Jd. at 1234. In addition, although the judge did not directly
refer to MSHA Supervisory Engineer Verakis' testimony that, given the velocity of air at the belt
transfer point, the fire in this case had the potential to reverse airflow, allowing smoke to roll
back against the flow of ventilation (S. Br. at 15), the judge indirectly referred to such testimony
and rejected it in view of Mitchell's contrary testimony that smoke would not have reversed and
moved from the belt entry to the face barring a fire of major intensity lasting up to I 0 hours. 18
FMSHRC at 1234; Tr. 971-73. The Secretary has provided no basis for overturning the judge's
credibility determination. See Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984)
(when judge's finding rests on credibility determination, Commission will not substitute its
judgment for that ofjudge absent clear indication of error), aff'd, 766 F.2d 469 (11th Cir. 1985).

957

My colleagues direct the judge "to reconsider whether there was a reasonable likelihood
that the hazard of rekindling a fire would result in injury," and t"o make findings on the likelihood
of rekindling occurring outby the belt drive. Slip op. at 6. I have reviewed the record, however,
and find that the Secretary failed to establish either that the fire rekindled or that there was any
likelihood of the fire rekindling. She did not, for instance, establish the existence of any
combination of combustible materials and incendiary materials left from the fire (i.e., an ignition
source). Indeed, there is no evidence in the record that any incendiary materials were present in
the general vicinity of where the fire occurred after it had been extinguished. Moreover, the belt
shut down soon after the fire started ( 18 FMSHRC at 1204; Tr. 138, 272), and there is no
evidence that any incendiary materials were transported outby the area of the fire before the belt
stopped.
Even had the tire rekindled, I tind no evidence in the record that any persons were outside
the area where lirelighting took place who cou ld have been endangered. In light ofthejudge's
findings with respect to the mine's ventilation, only persons in entries ventilated \\'ith return air
outby the area of' the lire would have been endangered by rekindling, yet the Secretary introduced
no evidence that any miners were in such areas.
I agree with my colleagues that the judge erred by basing his tinding regarding rekindling
solely on the presence of heat sensors and CO monitors. See 18 FMSHRC at 1233: slip op. at 6.
This finding is clearly erroneous since the record indicates that neither the heat sensor system nor
any CO monitors would have detected rekindling. 1 Slip op. at 6. l find the judge's error
harmless, however. in light of the Secretary's failure to adduce any evidence, as noted above, that
rekindling could have occurred in the first instance.
Accordingly, I would affirm the judge's finding that Consol's violation of the cited
standard was not S&S, and thus dissent from my colleagues' remand order.

Theodore F. Verheggen, Commis ·

1

The record is unclear, however, as to whether the mine's fire suppression system was
also inoperable after the initial fire. See Tr. 1011 (describing the mine's sprinkler system as
controlled by a type of "sensor that is not too unlike a thermo-tech sensor except it is a far more
rapid responding device"); Tr. 280 (Ammon's testimony that he replaced fire sensors on
sprinklers after the fire); Tr. 400, 408 (the sprinkler system was fully operational two days after
the fire).

958

Distribution

Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203 ·
Stephen D. Williams, Esq.
Steptoe and Johnson
P.O. Box 2190
Clarksburg, WV 26302
Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

959

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

September 22, 1998

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

Docket No. EAJ 96-3

CONTRACTORS SAND AND
GRAVEL, INC.

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

DECISION
BY: Jordan, Chairman; Marks and Beatty, Commissioners
This is a proceeding involving the recovery of attorney's fees and expenses under the
Equal Acces~ to Justice Act, 5 U.S.C. § 504 (1996) ("EAJA"). Administrative Law Judge
August F. Cetti ordered the Secretary of Labor to pay attorney's fees and expenses following an
application for fees filed by Contractors Sand and Gravel, Inc. ("CSG"), after CSG prevailed
over the Mine Safety and Health Administration ("MSHA") in a proceeding under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). 18
FMSHRC 1820 (Oct. 1996) (ALJ). The Secretary filed a petition for discretionary review with
the Commission challenging the judge's award and, after the Commission granted the Secretary's
petition, CSG filed a motion to dismiss for lack of jurisdiction over the Secretary's appeal.
For the reasons that follow, we reject CSG's contention that the Commission lacks
jurisdiction over the Secretary's appeal, reverse the judge's holding that the Secretary's legal
position on the merits was not substantially justified, and vacate his award of attorney's fees and
expenses.

960

I.
Factual and Procedural Background
A.

The Mine Act Proceeding

CSG operated the Montague Plant, a small portable sand and gravel surface mining
operation located near Yreka in north central California. Contractors Sand & Gravel Supply,
Inc., 18 FMSHRC 384,384 (Mar. 1996) (ALJ). The plant employed two workers and produced
10,000 to 15,000 tons ofrock annually. ld. CSG's general manager, Eric Schoonmaker,
oversaw plant operations and was responsible for coordinating equipment maintenance and repair
and for ensuring the safety of operations. !d. Schoonmaker also oversaw operations at another
CSG operation near Yreka, the Scott River Plant. !d.
On March 10, 1993, MSHA conducted an inspection at the Montague Plant and issued
several citations. !d. at 385. MSHA Inspector Ann Frederick observed two electrical motors
mounted on a crusher that she believed were improperly grounded because " (t]h~ frame of the
crusher was being used as the grounding conductor." !d. : Citation No. 3911909. Inspector
Frederick issued a citation to CSG charging a violation of 30 C.F.R. § 56.12025, 1 in which she
stated that "(e]ffective equipment grounding conductors have not been installed . ... Frame
grounding has been forbidden for over fifteen years." !d. No tests were performed at the time
the citation was issued to determine whether the motors were, in fact, grounded. 18 FMSHRC at
386. MSHA subsequently proposed a $7,000 penalty against CSG, and a $6,000 penalty against
Schoonmaker pursuant to section IIO(c) of the Mine Act. 2 !d. at 385, 389. CSG contested the
penalty assessments and the case was assigned to Judge Cetti.

1

Section 56.12025 provides:
All metal enclosing or encasing electrical circuits shall be
grounded or provided with equivalent protection. This requirement
does not apply to battery-operated equipment.

2

Section II 0(c) provides:
Whenever a·corporate operator violates a mandatory health
or safety standard or knowingly violates or fails or refuses to
comply with any order issued under this [Act] or any order
incorporated in a final decision issued under this [Act], except an
order incorporated in a decision issued under subsection (a) of this
section or section 105(c) of this title, any director, officer, or agent
of such corporation who knowingly authorized, ordered, or carried
out such violation, failure, or refusal shall be subject to the same
civil penalties, fines, and imprisonment that may be imposed upon
a person under subsections (a) and (d) of this section.

30 U.S.C. § 820(c).

961

In July 1994, the judge issued a default order against CSG. Order dated July 21, 1994.
Subsequently, CSG ·requested relief from the Commission, and the case was remanded to the
judge to determine whether relief from default was warranted. 16 FMSHRC 1645, 1646 (Aug.
1994). There is no indication that the judge ever made such a determination. Following remand,
CSG failed to respond to the judge's September 1, 1994 prehearing order, and he again issued a
show cause order. Order dated Nov. 16, 1994. By early December 1994, CSG retained its
present counsel who asked for additional time to respond to the prehearing order.
In October 1995, CSG and the Secretary filed cross motions for summary decision, each
arguing that there were no material facts in dispute. On March 25, 1996, the judge issued his
Summary Decision in which he vacated the citations and penalties against CSG and
Schoonmaker. 18 FMSHRC at 389.3 He explained that the cited standard "plainly and clearly
requires that 'metal enclosing ... electrical circuits shall be grounded,"' and that the standard
"does not specify or require that the operator achieve an effective ground in a specific manner."
ld. at 387. The judge further found that CSG complied with section 56.12025 because, as
demonstrated in resistivity tests conducted by CSG, "the motors in question were connected with
the ground to make the earth part of the circuit.4 There is no contrary evidence." ld. at 387-88
(footnote added).
The judge rejected the Secretary's argument that frame grounding constitutes a per se
violation of section 56. I 2025, noting that this position amounted to an attempt "through
interpretation to expand the regulation beyond its plain meaning.•· !d. at 388. He also reasoned
that "a reasonable, prudent person familiar with the mining industry would have recognized that
the two motors ... were 'grounded' and were, thus, in compliance with [section 56. 12025]." !d.
In support of his conclusion, the judge cited decisions of two other Commission judges who had
rejected the theory that frame grounding is a per se violation of section 56.12025. !d. at 389
(citing Mulzer. Crushed Stone Co., 3 FMSHRC 1238 (May 198 I) (ALJ), and McCormick Sand
Corp., 2 FMSHRC 21 (Jan. 1980) (ALJ)).
B.

The EAJA Proceeding

After the judge rendered his decision, CSG timely filed with the Commission an
application for fees and expenses pursuant to EAJA. In its application, CSG stated that it was the
prevailing party in the Mine Act proceeding, that it had fewer than 500 employees and a net
worth under $7 million, and that the position of the Secretary in the underlying proceeding was

3

The judge appended his Summary Decision in the Mine Act proceeding to his
October 28, 1996 EAJA decision. 18 FMSHRC at 1837.
4

On September 15, 1992, Schoonmaker conducted resistivity tests on the circuits that
indicated that there was an effective path to the ground from both of the motors. 18 FMSHRC at
388.

962

not substantially justified. CSG sought attorney's fees and expenses totaling $20,715.12. In
several amendments to its application, CSG sought an award of$41 , 155.05.
In response to CSG's application, the Secretary argued that his position was substantially
justified because it had a reasonable basis in law and fact. S. Answer at 2-5. The Secretary
further argued that CSG's fee request was excessive because CSG sought fees in excess of the
maximum rate of$75 per hour set forth in EAJA and because some of the fees sought were not
attributable to the defense of the case in which CSG prevailed. Id. at 6-7. Finally, the Secretary
objected to some of the costs included in the application, including various office expenses and
interest on unpaid bills. ld. at 7.
The judge granted CSG's application. 18 FMSHRC at 1835. He noted first that it was
undisputed that CSG was a prevailing party in the underlying proceeding and that it met the
eligibility requirements of EA.IA. !d. at 1821. On the question of whether the Secretary's
position on the merits was substantially justified, the judge noted that he had ·•ctearly indicated"
in his decision in the underlying proceeding that "the Secretary's position was unreasonable." ld.
at 1822. The judge concluded that any interpretation that "ignores the plain meaning of a cited
standard, is per se unreasonable," and that "there is no reasonable interpretation of the facts that
supports the Secretary's theory that the motors were not effectively grounded." ld. at 1822-23.
Accordingly, the judge held that the Secretary's position in the underlying proceeding was not
substantially justified. /d. at 1824.
The judge adopted the apportionment suggested in CSG's application to distinguish
between fees and expenses that would be recoverable and those that would not because they were
incurred in defending other citations. /d. at 1824-27. The judge also held that he had the
discretion to increase EAJA 's cap on the hourly rate of fees, and that increases in the cost of
living justified a retroactive increase in the rate from $75 to $121.50 per hour in the underlying
Mine Act proc.eeding. !d. at 1827-30. With regard to expenses, the judge determined that the
office expenses of.CSG's counsel attributable to the case would ordinarily be billed to clients
and, therefore, should be recoverable from the government. Jd. at 1830-31. As to CSG's request
for interest, the judge found it was a reasonable cost of providing legal services and would not
have been incurred but for the Secretary's unreasonable enforcement action. 18 FMSHRC at
1831-32. Finally, the judge held the EAJA proceeding was an "adversary adjudication," within
the meaning of EAJ A, separate and distinct from the underlying merits proceeding. !d. at 1834.
He consequently determined that, because the EAJA proceeding was an adversary adjudication
initiated after the effective date of the EAJA amendments (Mar. 29, 1996), the higher fee rate of
$125 per hour in the amendments was applicable. !d. at 1835. Therefore, the judge concluded
that CSG was "entitled to recover fees and expenses incurred in connection with its EAJA
application," and that CSG had "not unduly or unreasonably protracted [the] EAJA proceedings."
!d. at 1832-35. He ordered the Secretary to pay CSG $41,155.05 in fees and expenses. !d. at
1835.

963

II.
Disposition
A.

Jurisdiction

After the Commission granted the Secretary's petition for discretionary review, CSG filed
a motion to dismiss the petition. CSG argues in its motion that review of the judge's decision is
contrary to the "distinct and noticeable absence of any provision for Commission review in the
EAJA." CSG Mot. to Dismiss at 15. To the contrary, according to CSG, the reference in EAJA
section 504(a) to "the adjudicative officer" indicates an intent to preclude administrative appeals
in EAJA cases. Id at 12~14.
CSG further argues that, by not providing for review of EAJA determinations, Congress
intended to encourage agencies to appeal adverse determin~tions in underlying proceedings
pursuant to their enabling statutes, rather than use EAJA proceedings tore-litigate issues on
which review was not sought. Jd. at 15-17. CSG contends that agency review of a judge's EAJA
decision undermines the purpose of the statute by allowing delay of the payment of fees and
expenses without payment of interest, and that review is not "rational" because the judge's
decision is entitled to deference, leading to only marginal benefits on review. ld. at 18-19.
Finally, CSG asserts that the Com~nission's EAJA rules preclude the Secretary from appealing an
award because those rules only explicitly require a judge to set forth in full the reasons for a
denial of a fee request. /d. at 20-22 (citing 29 C.F.R. § 2704.307).
In response, the Secretary argues that CSG's position is contrary to the language and
legislative history ofEAJA. S. Br. at 7-8. The Secretary also notes that model agency EAJA
rules developed by the Administrative Conference of the United States, upon which the
Commission rules were based, provided for such appeals because unreviewable adjudicative
.officer decisions would be inconsistent with traditional agency practice. Id. at 8 n.6.
We find CSG's arguments unpersuasive. The language in the final sentence ofEAJA
section 504(a)(3), added to EAJA in 1985, plainly states that the "decision of the agency," as
distinguished from the "adjudicative officer's decision," will be the "final administrative
decision." See Lion Uniform, Inc. v. NLRB, 905 F.2d 120, 123 (6th Cir.) ("While the decision on
an application for fees is initially made by the adjudicative officer, the final administrative
decision is that of the agency."), cert. denied, 498 U.S. 992 (1990).5 Moreover, CSG

5

Even ifEAJA were silent as to administrative review of judges' decisions, the
Commission could establish such review. The Commission has created a right of administrative
appeal from judges decisions on applications for temporary reinstatement under section 105(c) of
the Mine Act, 30 U.S.C. § 815(c), even though the Act does not provide for such review. See 29
C.F.R. § 2700.45(f).

964

'

acknowledges that no other court or administrative decision supports its position. CSG Reply Br.
at 9.
We also note that the legislative history accompanying the 1985 re-enactment and
amendment ofEAJA unambiguously supports Commission review ofEAJA determinations
made by our administrative law judges. The House Committee Report submitted with the
legislation (there were no Senate or conference reports) states: "The legislation allows the
agency rather than the adjudicative officer to make the final decision on fee award at the ag~ncy
level." H.R. Rep. No. 99-120, 99th Cong., lst Sess. 7 (1985), reprin!ed in 1985 U.S.C.C.A.N.
132, 135. In the section-by-section analysis, regarding section 504(a)(3) the report further states:
This provision explicitly adopts the view that the agency makes the
final decision in the award of fees in administrative proceedings
under section 504. This follows the view adopted by the
Administrative Conference and recognizes the fact that decisions in
administrative proceedings are generally not final until they have
been adopted by the agency.

!d. at 142.
Moreover, we find that policy considerations compel us to reject CSG's arguments.
Commission revi ew of EAJA decisions by oUt· judges will lead to the formulation of a uniform
body of case law under the statute. Administrative review also provides protection against either
arbitrary actions of judges or actions that could be perceived as arbitrary, and also controls and
regulates the quality of judicial decision-making. Accordingly, we deny CSG's motion to
dismiss.
B.

Standard of Review

The Secretary has not addressed the question of which standard of review the
Commission should apply in EAJA proceedings. CSG argues, albeit implicitly, that our review
of the judge's factual findings is governed by the substantial evidence test and that his legal
determinations are reviewed as to whether they are "correct." CSG Resp. Br. at 4-13.
EAJA provides for a substantial evidence standard of review for appellate courts
reviewing final agency decisions under the Act. 5 U.S.C. § 504(c)(2). However, EAJA is silent
on the appropriate standard of review of an administrative law judge's decision in the course of
an internal agency appellate review. In Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme
Court addressed the standard of review for appellate courts in civil EAJA actions tried in district
courts. The Court held that a district court judge's EAJA determination is to be reviewed by a
court of appeals using an abuse of discretion standard. /d. at 562.

965

The holding in Pierce suggests that, by analogy, the Commission should adopt a similar
standard in reviewing the judge's decision here. However, our adoption of the more deferential
abuse of discretion standard would lead to the aitomalous result of having our decision reviewed
on appeal under the less deferential substantial evidence standard required by EAJA.
In Lion Uniform, the Sixth Circuit considered and rejected the argument that the abuse of
discretion standard app~oved by the· Su~reme Court in Pierce should api?iY to review by the
National Labor Relatioris·Board ("NLRB") of an administrative law judge's decision, stating:
The rationale of the opinion in Pierce is, of course, sound
in the context of the rel~tionship between a court of appeals ·and a .
district court, where the EAJA litigation begins in the district court.
But, where the EAJA litigation begins before an agency, with
appeals contemplated to the courts, a highly deferential review by
the Board, followed by a less deferential review by the courts,
makes little sense. In the absence of more specific legislative
direction, we must assume the more logical scheme applies- that
the standard of deference is heightened as the appeal process
progresses -de novo review at the agency level, and substantial
evidence review before the courts.
905 F.2d at 124. The court found de novo review to be the appropriate standard of review for the
NLRB, since making de novo findings of fact is part of the Board's ''normal function:· /d.
We agree with the court's rationale in Lion Un((orm. Thus, our standard of review of a
judge's EAJA determination should not be more deferential than the standard of review
employed by an appeals court in reviewing a Commission decision under EAJA. Unlike the
NLRB, however, the Commission does not generally make de novo findings of fact. Instead,
when reviewing an administrative law judge's factual determinations; the Commission is bound
by the terms of the Mine Act to apply the substantial evidence test:6 ' 30 U.S.C.
§ 823(d)(2}(A)(ii)(I). We find this test to be the more appropriate standard of review for factual
determinations made by our judges in EAJA cases.7 Applying the substantial evidence test to

6

"Substanti~ evidence" means '"sud~ relevant evidence as a reasonable mind might

accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh Coa_l Co., 11
FMSHRC 2159,2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). In reviewing the whole record, an appellate tribunal must consider anything in the
record that "fairly detracts" from the weight of the evidence that supports a challenged finding.
Midwest Material Co., 19 FMSHRC 30,34 n.S (Jan. 1997) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)).
.
7

·In this case, however there are no factual findings to review, as the judge, findtng that
"[b]oth parties .agree that there is no dispute as to any material fact," 18 FMSHRC at 386, ruled

966

findings of fact, together with de novo review of questions of law, is consistent with the
Commission's "normal function" under the Mine Act and ensures that our decision will not be
reviewed on appeal under a less deferential standard.
·
C.

Substantial Justification

EAJA provides that a prevailing p~rty may be awarded attorney's fees unless the position
of the United States is substantially justified. Cooper v. United States R.R. Retirement Bd., 24
F.3d 1414, 1416 (D.C. Cir. 1994). The Supreme Court has defined a "substantially justified"
position as '1ustified in substance or in the main" or one that has "a reasonable basis both in law
and fact." Pierce, 487 U.S. at 565. In Pierce the court set forth the test as follows: "a position
can be justified even though it is not correct, and we believe it can be substantially (i.e., for the
most part) justified if a reasonable person could think it correct, that is, if it has a reasonable
basis in law and fact." !d. at 566 n.3. In EAJA proceedings the agency bears the burden of
establishing that its position was substantially justified. Lundin v. Mecham, 980 F.2d 1450, 1459
(D.C. Cir. 1992).
The standard CSG was charged with violating in this case requires that ''[a]ll metal
enclosing or encasing electrical circuits shall be grounded .... " 30 C.F.R. § 56.12025.
Electrical grounding is defined elsewhere in Part 56 as "to connect with the ground to make the
earth part of the circuit." 30 C.F.R. § 56.2. At issue. therefore, is whether the Secretary's
position regarding CSG's compliance with this regulation was substantially justified. For the
reasons ·discussed below, we conclude that the Secretary's position had a reasonable basis in law
and fact, and therefore reverse the judge's EAJA determination.
1.

The Judge Failed to Independently Evaluate the Secretaey's Legal Position

As stated above, the issue in this case is not the success or failure of the Secretary's
underlying case on the merits, but instead whether or not the Secretary's position was
substantially justified. To determine substantial justification, ajudge is required to independently
ascertain in his or her EAJA decision whether the Secretary's position had a reasonable basis in

on summary judgment motions. He therefore made no independent findings of material fact in
the merits proceeding and did not even reach the question of whether frame grounding is
effective. This issue, which was essential to a resolution of the underlying proceeding, was never
resolved, and remains in dispute. Thus, the case on the merits was actually not appropriate for
summary judgment, and the judge should have resolved this factual disagreement.
Generally, such a lack of factual findings would lead us to remand. See Western FuelsUtah, Inc., 19 FMSHRC 994, 1000 (June 1997). In this EAJA proceeding, however, remand is
not necessary since the record (in this case, depositions the parties submitted in support of their
motions) compels the conclusion that the Secretary's position had a reasonable basis in fact.

967

law and fact. In this case, however, the judge based his EAJA decision entirely on his
determination of the standard's "plain meaning, in the underlying merits proceeding, finding
again that the Secretary's interpretation ignored the plain meaning of the standard and thus was
per se unreasonable. 18 FMSHRC at 1822-23. This approach is incorrect as a matter of law.
See F. J. Vollmer Co. v. Magaw, 102 F.3d 591,596 (D.C. Cir. 1996) (reviewing court's role in
reviewing lower court's EAJA award is to ascertain whether court relied on proper legal
standard). The D.C. Circuit has held that "the inquiry into reasonableness for EAJA purposes
may not be collapsed into [the] antecedent evaluation of the merits, for EAJA sets forth a
'distinct legal standard. "' Cooper, 24 F.3d at 1416 (citation omitted). As the First Circuit has
noted, while there may be overlap between the merits determination and the substantial
justification determination under EAJA, " [a]n exercise of independent judgment is essential to
determine whether an EAJA award is warranted; the answer is not 'wedded to the underlying
j udgment on the merits. ' . . . Any other approach would demean the precise language of the
(EAJA]." Sierra Club v. Secretaryo.fthe Army, 820 F.2d 513,517 (1st Cir. 1987) (emphasis
added) (citation omitted). Under an EAJA analysis, "[t]he government's failure to prevail does
not raise a presumption that its position was not substantially justified." Kali v. Bowen, 854 F.2d
329, 332 (9th· Cir. 1988).
A review ofthe record in this case indicates that the j udge's determination regarding the ·
scope and meaning of section 56. 12025 hopelessly tainted his EAJA decision because he simply
carried over his analysis from the merits proceeding into the EAJA proceeding.11 As the judge
stated:

In the underlying proceeding, I clearly indicated that the
Secretary's position was unreasonable .... I again find that the
Secretary's legal theory was not reasonable and 'that there was no
reasonable connection between the Se9retary's legal theory and the
· un~isputed facts.
18 FMSHRC at 1822 (emphasis added).
Of course, in disposing of the citation in the underlying proceeding, the j udge did not
reach the issue of substantial justification of the Secretary's position, nor should he have.
However, the judge's failure to fndependently review the Secretary's position in the EAJA
proceeding and apply a distinct analysis under the appropriate EAJA standard was erroneous and,
in itself, precludes affirmance of the judge's determination. Indeed, as the D.C. Circuit has noted
in the context of EAJA litigation, "[m]echanical jurisprudence will not do., FEC v. Rose, 806
F.2d 1081, 1089 (D.C. Cir. 1986). As we discuss below, an independent examination of the
Secretary's legal position, uncoupled from the underlying merits decision, leads to the ineluctable

8

In fact, the judge attached his decision on the merits to the EAJA decision. 18 ·
FMSHRC at 1837-42.

968

conclusion that the Secretary's position was "reasonable in law and fact," and as such
substantially justified under EAJA.9
2.

The Secretary's Position Had a Reasonable Basis in Law

We begin our analysis of whether the Secretary's position was substantially justified by
examining whether her position had a reasonable basis in law. For purposes of this case, we need
not decide whether MSHA was correct; rather, we must only ascertain whether its view was a
reasonable one.
MSHA cited CSG because of the operator's undisputed use of the crusher frame as, a
ground path. In MSHA's view, frame grounding violated the standard because it was an
inherently unreliable system which exposes miners to the risk of electrocution. The Secretary
argued that the wiring on the unsheltered equipment at CSG's rock quarry .was exposed to the
elements and subject to extreme vibration. Therefore, under the Secretary's theOt)', using the
frame to ground the electrical equipment carried a risk that metal-to-metal. metal-to-bolt, and
metal-to-wire connections would deteriorate or come loose. S. Cross Mot. for ·Sum. Dec. at 6;
Dec!. of Paul Price, Oct. 27, 1995 (''Price Decl.") at 4. The Secretary's litigation position was
supported by its expert, Paul Price. Further, according to MSHA 's expert, no nationally,
recognized industry association accepted the use of an equipment structure or frame on an
outdoor portable crusher to serve as a grounding conductor. S. Cross Mot. for Sum. Dec. at 10;
Price Dec!. at 5-6.
The judge determined that the Secretary's legal position (that frame grounding was
prohibited under the regulation) was unreasonable because it "expand[ed) the regulation beyond
its plain meaning." 18 FMSHRC at 1822 (quoting 18 FMSHRC at 388) (emphasis omitted).
According to the judge, "[a]ny interpretation that 'impermissibly' ignores the plain meaning of a
cited standard, is per se unreasonable." Id. at 1822-23. In the judge's view, since the two motors
in question "were connected to earth through a series of metal frame and wire connections, [they]
were grounded and Yliere, thus, in compliance with [theJ requirement ofthe cited regulation."
I d. at 1823 (quoting 18 FMSHRC at 388) (emphasis in original).
During the EAJA proceeding, the judge erred in not looking beyond the merits of the
underlying case, and in failing to consider whether the Secretary's, interpretation was
substantially justified and consistent with the Mine Act. He improperly considered the
Secretary's position unreasonable because in his merits decision he had found section 56. 12025
satisfied so long as the electrical equipment was connected to earth. The judge's approach failed
to consider the reasonableness of the Secretary's argument as to the importance of an effective
' .
9

The D.C. Circuit explained that the "fresh look occasioned by application of the
'substantially justified' standard" is required to honor Congress' intent "not to permit a
prevailing party automatically to recover fees" under EAJA. Rose, 806 F.2d at 1087 (citation
omitted).

969

grounding connection. In fact, the judge did not discuss the Secretary's theory as to the
reliability of the grounding technique employed by CSG, even though GSG conceded that the
regulation required an effective path to ground. CSG Mot. for Sum. Dec. at 6 n.6.
From our review of the record, we conclude that MSHA's interpretation of the standard
requiring effective grounding had a reasonable basis in law, because restricting the standard to its
literaJ terms could expose individuals to the harm the standard was designed to prevent. 10 See
Arch ofKentucky, Inc:, 13 FMSHRC 753, 756 (May 1991) (rejecting operator's argument that its
procedure fell within the literal terms of the standard because procedure was unsafe and did not
comport with the safety goals of the regulation and the Act). In fact, a narrow reading of section
56.12025 could create a situation where an individual could be fatally injured before a problem
in the grounding system is detected. This is because under a literal approach, an unreliable
system would not violate the standard until the connection with the ground was severed. 11 But as
MSHA' s expert explained:
You must have an effective path for the ground fault to flow. It's
essentially the lifeline of the guy standing there touching it. The
worker' s - if that's poor, he 'sjust going to die. Just as simple as
that.
Deposition of Paul Price, July 25, 1995 ("Price Dep.") at 47 (emphasis added). The protective
purpose of the standard is to prevent injury from electrocution caused by a malfunctioning or
improper grounding system. The Secretary's interpretation certainly is consistent with this goal.
Historically, the Commission has rejected a narrow, technical interpretation of a
regulation that "thwarts the standard's protective purpose and d<?eS not serve the safety objectives
recognized in the legislative history." Pyramid Mining Inc., 16 FMSHRC 203?, 2040 (Oct.
1994). For-example, in Consolidation Coal Co., 15 FMSHRC 1555 (Aug. 1993), the
Commission considered whether an escapeway was separated from a belt and trolley haulage
entry, because the stopping between the two had a substantial hole. The judge had found that a

10

Our dissenting colleagues wrongly assert that we have somehow transformed the issue
in this case into whether frame grounding is effective. Slip op. at 20-22. What the dissent
overlooks is that the issue before us is whether the Secretary's position was substantially jus~ified
and the Secretary's position·was that frame grounding was ineffective. SeeS. Cross Mot. for
Sum. Dec. at 5 ("[t]o satisfy the standard, the ground path must be effective").
11

Our dissenting colleagues appear to have also adopted the judge's mistaken theory,
finding that the Secretary's interpretation of the regulation is inconsistent with its plain meaning
because "[it] simply requires ... that electrical circuits be grounded." Slip op. at 20. Like the
j~dge, our colleagues' also fail to address the essential question before us: whether the
Secretary's position was substantially justified, not whether the Secretary should have prevailed
on the merits ..

970

"separation" existed, despite the existence of the hole. In reversing that determination, the
Commission concluded that a construction of the standard requiring physical separation but
allowing free movement of air current thwarted the standard's purpose of permitting only intake
air in escapeways, and could lead to "absurd results," because in the event of a fire, the hole
could permit contaminated air to enter the escapeway. !d. at 1557. In Western-Fuels Utah, Inc.,
19 FMSHRC at 998- l 000, the Commission reversed the judge's conclusion that a regulation
requiring a conveyor be ."equipped with slippage and sequence switches" was not violated as
long as the belt contained the requisite switches and that any malfunction of those switches was
"irrelevant." The Commission agreed with the Secretary that the standard must be construed to
require that the belt be equipped with "functional" slippage and sequence switches. !d. See also
Fluor Daniel, Inc., 18 FMSHRC 1143, 1145-46 (July 1996) (rejecting, sub silentio, .operator's
claim that 30 C.F.R. § 56.1410 i (a)(l) did no~ require brakes to be maintained in functional
condition); Meffiki Coal Corp., 13 FMSHRC 760,768 (May 1991) (construing 30 C.F.R.
§ 77.507 to require that switches be installed withfunctioning lockout devices). The Secretary's
interpretation requiring effective grounding is consistent with this line of Commission authority.
The judge, by adhering to the analysis of hi s merits decision, which relied on a literal approach,
erred by disregarding Commission precedent holding that if a regulation requires specified
equipment, that equipment must be functional, effective, and safe.
In line with this authority, we can only conclude that the Secretary's interpretation of the
regulation to require a grounding system "of adequate design so as to be expected to provide the
necessary ground path on a continuing basis" (Price Decl., 9 (emphasis added)) had a
reasonable basis in law and furthered the safety protective purposes of the Act.
Our dissenting colleagues, citing Pierce, seek to rely on "objective indicia"12 in an
attempt to support their view that the Secretary's position was unreasonable. Slip op. at 23. The
dissent seizes on the language in Pierce which identifies the "views of other courts on the merits"
as a factor in determining the reasonableness of the government's position. !d. To support its
argument the dissent relies on four unreviewed administrative law judge decisions that have
disagreed with the Secretary's "interpretation of section 56.12025. Slip op. at 24. 13

12

In Pierce, the court noted that certain '"objective indicia' such as the terms of a
settlement agreement, the stage in the proceedings at which the merits were decided, and the
views of other courts on the merits" can be relevant to the inquiry of whether the government's
position was substantially justified. 487 U.S. at 568.
13

The two decisions which predate the judge's decision on the merits in this case are
distinguishable. In Mulzer Crushed Stone Co., the issue of whether frame grounding was
permissible under section 56.1205 was never squarely decided. Rather, the case centered on the
fact-based question of whether bolts used to connect the motor frame to the conveyor belt frame
were rusted. 3 FM~HRC at 1241. T~e judge never discussed the regulatory interpretation
question at issue here. In addition, McCormick Sand Corp. is distinguishable because in that
case the judge found that the circuit met the National Electric Code ("NEC") grounding

971

The dissent's reliance on these cases is misplaced for several reasons. The most obvious
one is that, pursuant to Commission Procedural Rule 72, 29 C.F.R. § 2700.72, unreviewed
administrative law judge decisions have no binding precedential impact. It is, therefore,
erroneous to portray these rulings as having any appreciable relevance to the current status of the
law regarding the issue of frame grounding. They cannot be found to constitute the type of
"string of losses" referred to by the Supreme Court in Pierce as bearing on whether an agency's
position lacks substantial justification. 487 U.S. at 569.
The Kali case underscores this point. In Kali. an EAJA case in which the plaintiffs had
successfully challenged a government welfare regulation in the merits proceeding, every court
that had ruled on the issue (generally federal district courts) had rejected the Secretary' s position.
854 F.2d at 334. Nonetheless, the Ninth Circuit found that the district court in the EAJA case
had not abused its discretion in finding the government's position substantially justified.
Moreover, when federal courts inquire as to whether the government's position was
substantially justified on legal grounds, they generally look to federal court of appeals precedent.
United States v. One 1984 Ford Van, 873 F.2d 1281. 1282 (9th Cir. 1989) (government did not
have a reasonable basis in law because there was no distinction between this case and an earlier
Ninth Circuit case); Fraction v. Bowen, 859 F.2d 574_. 575 (8th Cir. 1988) (government' s
position was not substantially j ustified because the government's mistakes were ••contrary to
clearly established circuit precedent"). Similarly, in the administrative law context, Commission
decisions serve as legal precedent, since the role of the Commission as a reviewing body is
sin~ilar to that of a federal circuit court in the judicial setting. But, as we have discussed, the
Commission has never addressed the issue of frame grounding, and therefore no binding
precedent exists to establish a meaningful interpretation of section 56.12025.
Our dissef?.ting colleagues also take exception to the Secretary's decision not to appeal
any of the aforemerytioned cases. Slip op. at 25. However, we note that, in Pierce, the Supreme
Court held that "[t]he unfavorable terms of a settlement agreement, [which the Court also
considered as "objective indicia" of whether the government's position was substantially
justified] without inquiry into the reasons for settlement, cannot conclusively establish the

requirements. 2 FMSHRC at 24. The two other cases relied on by the dissent (Tide Creek Rock,
Inc., 18 FMSHRC 390 (Mar. 1996) (ALJ), and F Palumbo Sand & Gravel, 19 FMSHRC 1440
(Aug. 1997) (ALJ)) were decided after the judge's ruling in the underlying decision on the merits
in this case, and therefore are not relevant in determining whether the Secretary's position was
substantially justified. As the Supreme Court made clear in Pierce, the legal question on an
appeal from an attorney's fee award is "not what the law now is, but what the Government was
substantially justified in believing it to have been." 487 U.S. at 561. Of course, even now these
cases do not represent "what the law ... is" because·they are administrative law judge decisions,
which are not legal precedent. ld

972

-

weakness of the Government's position." 487 U.S. at 568 (emphasis added). In the same vein,
the Commission, as a reviewing body, should likewise be extremely cautious about concluding
that the Secretary's position was unreasonable if the support for such a ·finding would involve
second-guessing her decision of whether to appeal a case. This is particularly important because
we are not privy to the complex legal, factual, and policy reasons underlying the Secretary's
decision not to appeal. Furthermore, to suggest that the Secretary's un<:ferlying position in a case
was unreasonable based on her decision not to appeal an adverse ruling could result in the filing
of needless appeals by t.he Secretary to avoid the threat of liability for attorney's fees under the
EAJA.
3.

The Secretary' s Position Had a Reasonable Basis in Fact

We now turn to the question of whether the Secretary' s position had a reasonable basis in
fact. Pierce, 487 U.S. at 565. To ascertain the answer, we review the record before us with the
understanding that the Secretary need not prove in this EAIA proceeding by a preponderance of
the evidence that frame grounding is ineffective. Rather, she need only demonstrate that her
position was a reasonable one. Our review of the entire record compels the conclusion that her
position that .frame grounding is not effective is reasonable in fact. 14
The purpose of section 56.12025 is to protect individuals from the threat of electrocution.
In the event of a fault in the electrical current. such as a broken wire or worn insulation in the
cable carrying the electrical power supply to the motor, or excessive moisture, undirected
electrical current must be carried by way of a grounding conductor back to t11e power source.
When the system is properly grounded, fault current will pass through a circuit breaker, trip the
switch and de-energize the system, and then pass to the ground. S. Cross Mot. for Sum. Dec. at
4; CSG Mot. for Sum. Dec. at 6. If the fault current does not have an effective ground conductor,
the breaker may not trip quickly, allowing the equipment frame to become energized. When this
occurs, an individual who comes into contact with an energized frame faces the hazard of
electrical shock o.r death by electrocution. S. Cross Mot. for Sum. Dec. at 4.
In asserting that the frame grounding method employed by CSG was so inherently
unreliable that it coula not provide reasonable assurance that the miners would be protected from
electrocution, the Secretary relied on the fact that CSG's frame grounding system depends on the

14

Our dissenting colleagues describe the statements made by MSHA safety expert Paul
Price in a deposition and declaration as "allegations." Slip op. at 22. This characterization is
incorrect, however, since these were not mere allegations by the Secretary but rather statements
submitted by both CSG and the Secretary with their summary judgement pleadings. CSG had the
opportunity to cross-examine Price about his statements during his deposition and to rebut them
through the introduction of competing views submitted in affidavits at the summary judgement
stage. Accordingly, the Secretary could appropriately rely on Price's statements in the underlying
proceeding to support her position, and we are not precluded from considering them in
determining whether the Secretary's position was substantially justified.

973

in.tegrity of many connections (metal to bolt, metal to metal, metal to wire) to move the fault
current to the breaker. /d. at 10. MSHA's expert, Paul Price, was ~mphatic about the hazard
posed by such a system:
Crushers, screens, conveyors and other steel structures vibrate and
rust resulting in the loosening of the connections of the frame and.
thereby inereasing the resistance of the grounding path . . . . The
connections at the motors and other electrical enclosures depend on
bolts which are also subject to rust and vibration. Thus, the use of
the crusher and conveyor frames as the grounding conductor, as
was attempted here, is extremely unreliable as any increase in
resistance anywhere along the ground path (motor to bolt to frame
part to adjoining frame part to jumper, etc.) could. subject anyone
touching any of the metal fran.1es during a ground fault condition to
a potentially fatal shock. Accordingly, the frame is wholly
unreliable as a conductor and does not provide for an effective path
to ground.
Price Dec!. at 4-5.
MSHA 's expert Price was unsh.akeable in his conviction that problems with rusty bolts
and vibration were insurmountable, and caused this system to be fundamentally flawed. He
testified that "it's impossible to maintain them in a low impedance 15 cause you have to grind the
rust off every day and it's kind of essentially impossible to maintain ~hem like that." Price Dep.
at 22. See also Price Dep. at 24 ("[T]he conveyors all vibrate ... The bolts are ... all rusty
because they're outside . . .. You can't maintain them ... unless you check them every hour.
They're essentially impossible to maintain."); Price Dep. at 55-56 ("The reason we do not accept
grounding by frames or conveyors is it's impossible to maintain the thing . . . It can't be done ...
[I]t can vibrate loose within just a few seconds").
The declaration of Gordon Vincent, an electrical contractor who was retained by CSG, in
the fall of i 992, to perform grounding and continuity tests, also supports the reasonableness of .
the Secretary's position. Decl. of Gordon Vincent dated Oct. 26, 1995 ("Vincent Decl.") at 1-2;
see also Deposition of Eric Schoonmaker, General Manager ofCS~ Montague plant, dated July
14, 1995 ("Schoonmaker Dep.") at 39. When Vincent arrived at the plant and found only 3cqnductor leads without a fourth grounding conductor, he determined that the grounding was
inadequate and ended his inspection. Vincent Decl. at 3; Schoonmaker Dep. at 41, 50. He

15

CSG concedes that low impedence is critical to an effective grounding system. Reply
to S. Cross Mot. for Sum. Dec. at 6.

974

informed the operator that the plant was not properly grounded, and ~hat he would not certify to
MSHA that it was, whereupon CSG terminated his contract. Vincent Ded. at 4. 16
CSG provided no expert testimony. In the merits case before the ALJ, it based its factual
case almost completely on the affidavit and deposition of Eric Schoonmaker. He asserted that
when the motors were serviced, they were inspected to ensure that they were securely bolted to
the frame and that the bolts were not rusted. Schooiunaker Aff. at 3. He also stated that the
grounding system was periodically tested, and that it passed the test in September 1992. !d. at 4.
The operator relied on the fact that MSHA could not produce test results that showed excessive
resistance and that the mandatory testing conducted annually by CSG always indicated a
sufficiently low resistance path to ground. 17 CSG's evidence does not undermine the
reasonableness of MSHA' s position that frame grounding fails to satisfy the standard '.s
grounding requirement. _The fact that a feared accident has not yet occurred, or that the system
could pass resistance tests on a pa1iicular day does not render unreasonable the Secretary's
charge that CSG ' s grounding was ineffective and violative of the standard. See Ace Drilling
Coal Co., 2 FMSHRC 790, 79l(Apr. 1980) ("lt is not necessary .. . that a condition contribute to
an accident before the standard is violated. The Act does not condition the existence of a
violation upon the occurrence of an event it is designed to prevent."). See also Western Fuels, 19
FMSHRC at 997-1000 (an unexpected malfunction of switches would constitute a violation,
notwithstanding the fact that the switches were in proper working order 3 days before the fire that
triggered the MSHA inspection at issue, the cause of the malfunction was never determined, and
the switches were still functional 2 years afterwards, at the time ofthe hearing). Finally, even
Schoonmaker admitted that a four-wire grounding system (as opposed to frame grounding)
would provide "'better protection." Schoonmaker Dep. at 53.
Under the approach of the judge and the dissent, MSHA could only cite an ineffective
path to ground after it.discovers the condition based on results of continuity and resistance tests

16

The dissent's dismissive appraisal of Vincent's declaration (slip op. at 22-23) appears
to be based on a possible misunderstanding of what kind of evidence is reievant in making a
determination that the government's position was substantially justified. His statement
represents the views of the operator's own contractor who quickly determined (without even
needing to examine the crusher motors) from his review of the starter control box that the
absence of a fourth grounding conductor was unacceptable. Vincent Decl. at 3. This is relevant
to the question of whether the operator had instituted "effective grounding," which even CSG
concedes is required Qy the regulation. Vincent's views strongly corroborate the Secretary's
position, which she long ago arrived at independently and has consistently enforced.
17

We note that CSG's annual test results may not be an entirely accurate indicator of
how well the system usually performs if, prior to such testing, the connections are cleaned and
tightened. Commenting on a test administered by MSHA after the citation had been issued, Price
stated that "every one of ... [the bolts] ... had been cleaned recently. They were still shiny."
Price Dep. at 24.

975

on a particular piece of equipment. MSHA's theory of violation, however, was that a design that
was inherently unreliable, such as frame grounding, failed to comply with the standard's ·
grounding requirement, regardless of what test results may show at any particular point in time. 18
Under the facts of this case, this was a reasonable view and one that furthered the safety purposes
of the Act.
In conclusion, the record as a whole indicates that the Secretary's position regarding the
inherent unreliability of CSG's frame grounding system had a reasonable basis in fact. As we set
forth in the preceding section, her position also had a reasonable basis in law. Accordingly, we
find that her position was substantially justified, and we therefore vacate the judge' s order
awarding fees and other expenses to CSG. 19

18

The j udge mistakenly relied on post-citation tests for the proposition that the
Secretary's position was not substantially justified. See 18 FMSHRC at 1824. The Secretary,
however, pointed out the distinction between one or more isolated satisfactory test results and an
effective grounding design. As MSHA's expert explained, "a faulty design can in fact provide a
sufficient ground for an instant in time, but will offer insufficient protection at the next moment."
Price Dec!. at 5. Thus, the fact that the system passed post-citation resistivity tests is in no way
conclusive of whether MSHA' s position in the underlying case was reasonable.
19

To support their position, our dissenting colleagues rely on the Secretary's proposed
penalty assessments and the charges of section 11 0(c) liability in the underlying proceeding. Slip
op. at 25-26. These issues were not raised before nor argued to the Commission in this EAJA
case. Further, the record evidence on these issues was not fully developed because the case on
the merits was decided on summary judgement. Accordingly, we will refrain from reaching these
issues, especially since we have before us neither the benefit of argument from the parties nor
analysis by the judge.

976

III.
Conclusion
For the foregoing reasons, we reverse the judge's EAJA decision and vacate the EAJA
award.

•
Marc Lincoln Marks, Commissioner

;,(

pl 7- :;.;;::::

Robert H. Beatty, Jr., Commissioner

977

7

Commissioners Riley and Verheggen, dissenting:
This case stands out as an unfortunate example of unreasonable regulatory enforcement,
especially when viewed in the context of the Secretary's position on frame grounding over the
past 17 years - a long history of regulatory inaction that reveals the Secretary's unwillingness to
address an issue that she herself emphatically pronounces to involve a serious safety risk to
miners. Viewing the re<:ord as a whole in this context, we find that the Secretary's litigation
position was not substantially justified. Therefore, although we join with our colleagues in
Sections I, II.A, and II.B of their opinion (with the exception of footnote 7, Section II.B), we
dissent from their reversal of the judge's award of fees to CSG in Section II.C.
Under EAJA, an eligible party engaged in litigation with a federal agency may, upon
prevailing over the agency and filing a timely application, recover attorney's fees and related
expenses unless the agency can prove that its position was ''substantially justified" or special
circumstances would render such an award ~·unjust." 5 U.S.C. § 504(a)(1). There is no dispute
in this case that CSG is a prevailing party eligible for an award under EAJA, and that its
application was timely filed. Nor has the Secretary alleged that any special circumstances exist
that would render an award unjust. Solely at issue is whether the Secretary has proven that her
litigation position was substantially justified and, if not. the propriety of the award made by the
judge. See FJ Vollmer Co. v. Magaw, 102 F.3d 591.595 (D.C. Cir. 1996) ("The Government
bears the burden of establishing that its position was substantially justified.").
An agency position that is substantially justified has a "reasonable basis both in law and
fact" and is "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood,
487 U.S. 552, 565 (1988). Here, the Secretary asserts that her position on the citation in the
underlying merits proceeding was reasonable in light of industry practice and because it furthered
the goal of protecting the health and safety of miners. S. Br. at 9-14. The Secretary also argues
that the judge erred by relying in his EAJA decision only on his reasoning for rejecting the
Secretary' s position in the merits proceeding. ld. at 13-16. In response, CSG argues that the
judge correctly concluded that the Secretary's position was not substantially justified because the
Secretary's interpretation of the cited standard was unreasonable, her litigation position was not
supported by the evidence, and a reasonable person familiar with the mining industry would have
concluded that the cited motors were effectively grounded. CSG Resp. Br. at 4-17.
We begin our review ofthis case with the Secretary's interpretation of section 56.12025,
which - like the judge - we find to be at odds with the plain meaning of the regulation. 1 The
requirements of section 56.12025 are clear and unambiguous. The regulation requires that "[a]ll
metal enclosing or encasing electrical circuits ... be grounded or provided with equivalent
protecti<?n." It does not contain any requirements for grounding design, nor does it prohibit any
1

Where the language of a regulatory provision is clear, the terms of that provision must
be enforced as they are written. Utah Power & Light Co., 11 fMSHRC 1926, 1930 (Oct. 1989).

978

particular-method of grounding. The regulation simply requires, in the context of this case, that
electrical circuits be grounded. Electrical grounding is defmed elsewhere in Part 56 as "to
connect with the ground to make the earth part of the circuit." 30 C.F.R. § 56.2. Since the
meaning of section 56.12025 is Clear and unambiguous, the judge properly refused to grant
deference to the Secretary's interpretation of the regulation as constituting a per se prohibition
against frame grounding. Contractors Sand & Gravel Supply, Inc., 18 FMSHRC 384,387-88
(Mar. 1996) (ALJ); see Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) (deference is
considered "only when the plain meaning of the rule itself is doubtful or ambiguous") (emphasis
in original).
The judge properly noted that, under the plain meaning of section 56.12025, the Secretary
failed to establish that CSG violated the regulation. 18 FMSHRC at 387-88. The Secretary
offered no evidence to show that the motors iri question were not, in f~ct, grounded as required.
by the regulation. Indeed, no tests were conducted by MSHA at the time the citation was issued
to determine whether the stacker or crusher motors were grounded. !d. at 386. CSG's own
continuity and resistance test, conducted as required under 30 CF.R. § 56.12028, indicated the
motors were properly grounded 6 months prior to MSHA 's investigation. !d. at 388. Postcitation tests conducted by MSHA also shoy.red that the motors were grounded, evidence which,
as the judge noted, the Secretary chose to ignore. /d. Given this singular lack of evidence, we
find amply supported by the record the judge' s conclusion that the Secretary's position on the
merits was unreasonable and without justification.
Our colleagues state that the judge "made no independynt findings of material fact in the
merits. proceeding and did not even reach the question of whether frame grounding is effective,"
which they characterize as an "issue ... essential to a resolution of the underlying proceeding"
that "remains in dispute." Slip op. at 778 n.7. This statement reveals a fundamental
misapprehension of the issue before the Commission. Our colleagues go to great lengt~s to
justify the Secretary's position based on the alleged inherent i~effectiveness of frame grounding.
Slip op. at.l0-'17. As explained further below, we view this case differently, and believe that the
majority's approach is an invalid exercise of de novo fact finding. Island Creek Coal Co., l.5
FMSHRC 339, 347 ·(Mar. 1993.) ("It would be inappropriate for the Commission to reweigh the
evidence in [any] case or to enter de n~vo findings based on an independent evaluation of the
record."); see also Wellmore Coal Corp. v. FMSHRC, No. 97-1280, 1997 WL 794132 at *3 (4th
Cir. Dec. 30, 1997) ("' [T]he ALJ has sole power to ... resolve inconsistencies in the evidence'")
(citations omitted).
·
This case began when MSHA Inspector Ann Frederick alleged that CSG was using "[t]he
frame of the crusher .. ·.as the gro~nding conductor." 18 FMSHRC at 38~ (quoting Citation No. ·
3911909). She went on to describe the ground in some detai,, then stated that "[f]rame
grounding has been forbidden for over fifteen years." !d. Agreeing that there was no dispute as
to any material fact, the parties filed cross motions for summary decision "on the single legal
issue of whether [CSG's] reliance on the crusher and stacker frames to serve as the path to
ground for the electric current violates the provisions of30 C.F.R. § 56.12025." !d. at 386

979

(emphasis added): In support of their positions, both parties filed extensive discovery documents
to be made part of the record. Among the Secretary's submissions were various allegations of
Paul Price, contained in a declaration and deposition transcript, regarding the effectiveness -or
Jack thereof- of frame grounding.
Here, it is important to take note of just what was before the judge. In essence, the parties
asked the judge to dispose of the threshold legal question of whether frame grounding was per se
prohibited by section 56.12025. This was a central part of the Secretary's theory. The
inspector's statement that "[f]rame grounding has been forbidden for over fifteen years" (18
FMSHRC at 385), and her subsequent failure to collect any evidence as to whether the cited
ground was, in fact, functioning can only be explained logically in the context of the application
of a per se rule. The record reveals that the Secretary was not concerned with proving that the
particular equipment in question was not grounded. Instead. she argued that, as a general
proposition. frame grounding is inherently ineffective and, therefore, illegal under section
56.12025. S. Cross Mot. for Sum. Dec. at 4-6.
We find it significant that the Secretary did not ·ask in her cross motion for leave to
proceed further to prove a violation under an alternative theory if the judge refused to accept her
interpretation of section 56. I 2025. For example, the Secretary could have attempted to prove
that the cited ground was, in fact, ineffective- which would have been an admittedly difficult
case for the Secretary to prove given the paucity of evidence she collected on the actual
performance of the cited ground. This may explain why she did not style her motion as one for
"Partial Summary Decision."
But when the judge rejected the Secretary's interpretation of section 56.12025, the
Secretary's case failed as a matter of law. The judge was not obliged to go any further. We are
thus left with a merits decision made on a minimal factual record 2 - and justifiably so given the
dispositive nature of the judge's decision under the circumstances. We also note that the
Secretary opted not to appeal the judge's decision to the Commission. She placed all her
litigation eggs in the basket of a per se rule that frame grounding violates section 56.12025. And
that is the posture in which the Secretary's litigation position arrived before us in this EAJA
proceeding.
As mightily as our colleagues try to transform this case into one involving the issue of
whether frame grounding is effective, that is simply not the issue before us on review. Instead,
we must decide whether the Secretary has proven that her litigation position - that frame
grounding is per se illegal under section 56.12025- was substantially justified. Thus, this case
does not require us to determine whether frame grounding is inherently ineffective, a question the
judge did not have to reach, and which we thus should not reach. Yet this is precisely what the
majority does based on the Secretary's unsubstantiated factual allegations. In so many words,
2

On this point, our colleagues go so far as to say "there are no factual findings to review"
in this EAJA appeal. Slip op. at 7 n.7.
980

they conclude that CSG's grounding method was inherently ineffective, based primarily on their
acceptance of allegations made by Price, and that, therefore, the Secretary was justified in
proceeding against CSG (in this respect, the majority merely follows the Secretary's lead- the
Secretary's EAJA pleadings also rest primarily on Price's allegations).
The problem with the majority's reliance on the Secretary's allegations to decide this case
is easily illustrated. For example, the majority highlights Price's "unshakeable ... convictionPl
that problems with rusty bolts and vibration were insurmountable, at'ld caused [CSG's] system to
be fundamentally flawed." Slip op. at 15. Yet they fail to mention that Schoonmaker testified
that there was no corrosion or rust between the stacker motor and the frame, that a bolt had never
··come loose" due to vibration ("Motors arc pretty stable. They don't make a lot of noise or
bumps."), and that during its 12 years of operation. the motor and frame had always provided a
sufficiently low resistance path to ground. Schoonmaker Oep. at 46-49. The Secretwyfailed to
rebut this testimony. In fact, Price agreed on cross-examination that the bolts did not affect the
grounding path when he tested them aHer the citation had been issued. Price Dep. at 24.
We note that MSIIA requires regular annual testing of all types of grounding conductors.
See 30 C.F.R. § 56.12028. In fact, this is so even where "grounding conductors ... are exposed
or subjected to vibration , flexing or corrosive environments.'· IV MSHA, U.S. Dep't of Labor,
Program Policy Manuu/, Pa•·t 56/57, at 51 ( 1996). This leads us to question whether lack of
continuity and high resistence due to vibration and corrosion may be inherent dangers in virtually
any grounding system on heavy machinery or equipment.
The majority also quotes Price's statement that to maintain a ground such as used by
CSG, '"you have to grind the rust off every day.'" Slip op. at 15 (quoting Price Dep. at 22). Yet
nowhere in the record can we find any data to substantiate this statement. CSG's Montague Plant
is located near Yreka, California. 18 FMSHRC at 384. The record is devoid of any evidence
regarding Yreka's weather or how machinery maintained outdoors holds up to the elements in
Yreka. 4 Bas~d on the record before us, we find it impossible to conclude that conditions in
Yreka would require daily de-rusting of outdoor ground connections.
The majority also relies on the declaration of Gordon Vincent to argue in support of the
reasonableness of the Secretary's position. Slip op. at 15-16. In his declaration, Vincent opined

3

Interestingly, this is just the sort of credibility determination that is within the sole
province of an ALJ to make. Brock v. Roadway Express. Inc., 481 U.S. 252,266 (1987) ("Final
assessments of the credibility of supporting witnesses are appropriately reserved for the
administrative law judge.").
4

Yreka's average annual precipitation is approximately 19 inches- arid in comparison
to Crescent City (approximately 100 miles west ofYreka), where the average annual
precipitation is approximately 65 inches. See http://www.weatherpost.com. In light of these
data, we view Price's statement with some skepticism.

981

-

that CSG's plant was not properly grounded "[b]ecause the use of 3-conductor leads without a
fourth grounding conductor does not meet the requirements of the National Electric Code
[NEC]." Vincent Decl. at 3. Vincent stated that he "would not certify to MSHA or anyone else
that [CSG's] electrical system was properly grounded." !d at 4. There are several problems with
Vincent's declaration. First, we note that, as a matter of law, Vincent's opinion is "not an
authoritative interpretation of [MSHA's] regulation" on grounding. Gates & Fox Co. v. OSHRC,
790 F.2d 154, 157 (D.C. Cir. 1986). In addition, the record contains no indication that any
MSHA personnel knew 9fVincent's inspection at the time Inspector Frederick issued the citation
at issue in the underlying proceeding. Vincent's opinion is thus irrelevant to whether the
Secretary's decision to cite CSG was reasonable. Insofar as the declaration might be relevant at
all to this proceeding- and we do not believe that it is - it is based on an inspection of a
"starter control box," not the cited equipment. In fact. there is no indication in the record that
Vincent ever looked at the cited crusher motors.
These examples illustrate how unwise it is to accept the Secretary's unsubstantiated
allegations on their face, as the majority has done. Had the case proceeded beyond summary
decision , the judge could have reached the issue of \Yhether frame grounding is effective, and
could have resolved any factual inconsistencies in the record before him. But given the posture
of the merits case, he did not have to reach this issue and thus made no factual findings on either
the Secretary's or CSG' s factual allegations. They remain mere allegations. We thus tind the
majority 's treatment of the Secretary' s allegations as if they were record facts inappropriatc. 5
The posture in which this EA.IA case arrived at the Commission dictates that we look
elsewhere to determine whether the Secretary's position had a reasonable basis in law and fact.
We have already found that the judge properly determined that the Secretary's interpretation of
section 56.12025 was unreasonable. But there are other "objective indicia" of the
unreasonableness of the government' s case. See Pierce, 487 U.S. at 568 (noting that certain
"'objective indicia' such as the terms of a settlement agreement, the stage ... at which the merits
were decided, and .the views of other courts on the merits ... can be relevant" to the inquiry of
whether the govermpent's.position was substantially justified). In keeping with Pierce, we thus
look to other relevant "extraneous circumstances" that may have a bearing on the reasonableness
ofthe Secretary,s position. Oregon Natural Resources Council v. Madigan, 980 F.2d 1330,
1331 (9th Cir. 1992); see also FEC v. Rose, 806 F .2d 1081, 1090 (D.C. Cir. 1986). As the court
in Oregon Natural Resources Co_uncil stated:

5

Although the majority regards the Secretary' s submissions in the underlying summary
decision proceeding as something more than allegations (slip op. at 14 n.l4), until a trier of fact
resolves conflicts between the factual allegations made by litigants, the litigants' conflicting
submissions remain allegations. See Wellmore, 1997 WL 794132 at *3 ('"[T]he ALJ has sole
power to ... resolve inconsistencies in the evidence" ') (citations omitted). But more to the point,
given the posture of this case and the fact that the Secretary lost the underlying proceeding on a
narrow question of law, we find it unnecessary to reach the Secretary's factual allegations at all.

982

Examination of the government's litigation posi_tion encompasses
examination of the position on the merits, then focuses upon
"extraneous circumstances bearing upon the reasonableness of the
government's decision to take a case to trial." Extraneous
circumstances include relevant legal or factual precedents.
980 F.2d at 1331-32 (citations omitted).
The Supreme CoUit has noted that •·a string of losses." while not determinative, " can be
indicative" that an agency's position lacks substantial justification. Pierce. 487 U.S. at 569.
Here, the judge correctly noted in his EAJA decision that "all the other administrative law judges
that have considered the Secretary's legal theory have concluded that it is not reasonable."
18 FMSHRC at 1823-24 (citing Tide Creek Rock. Inc., 18 FMSHRC 390 (Mar. 1996) (AU);
Mulzer Crushed Stone Co., 3 f-'MSHRC 1238 (May 1981) (ALl): and Me:( 'ormick Sand Corp., 2
FMSHRC 21 (.Jan . 1980) (AU)). These cases illustrate the Secretary's inability to convince any
trier of fact that section S6.12025 requires particular types of grounds.(• It is just the sort of
"string oflosses" to which the Supreme Court referred in Pierce.
The majority 's statement that "no binding [Commission] precedent exists to establish a
meaningful interpretation of section 56.12025'' (slip op. at 13) misses the point. At issue in this
EAJA proceeding is not determining authoritatively what section 56.12025 means as applied to
CSG's frame grounded crusher motor. Instead, at issue here is the reasonableness of the
Secretary's position that such frame grounding was per se prohibited under section 56.12025.
Moreover, the absence of any binding Commission decision on this question should not prevent
us from considering how Commission judges have ruled on the Secretary's efforts "to require
performance which is not specified in [section 56.12025]." McCormick Sand, 2 FMSHRC at 23.
Notwithstanding the statement on the face of the citation at issue here that frame
grounding had been forbidden for 15 years, it has never been found by any adjudicator to be
forbidden under section 56.12025. In fact, as recently as August 1997, well after the judge in this
case granted CSG's EAJA application, yet another Commission judge flatly rejected the
Secretary's theory that section 56.12025 per se prohibits frame grounding. F Palumbo Sand &
Gravel, 19 FMSHRC 1440 (Aug. 1997) (ALJ). In Palumbo, Judge David F. Barbour quoted
Judge Cetti's suggestion made in the merits decision of the instant case that '"[i]fthe Secretary
believes frame grounding should be prohibited, the Secretary should initiate appropriate rule
making to achieve this goal."' Jd. at 1444 (quoting 18 FMSHRC at 388). Judge Barbour
concluded: "It is a good suggestion." 19 FMSHRC at 1444. We agree.

6

In all three cases we cite, Commission judges rejected the Secretary's attempts to
expand the requirements of section 56.12025 and its predecessor, section 56. 12-25, well beyond
their plain meaning.

983

We are troubl~ by the Secretary's apparent indifference to the hazards she forcefully
alleges are associated with frame grounding. She has inexplicably failed to seek review of four
decisions by Commission judges which have declined to accept her position on frame grounding.
Nor has she published an information bulletin or interpretive memorandum setting forth her
interpretation of section 56. 12025, much less made any effort to engage in rulemaking to clarify
the requirements of the standard. The Secretary has simply been unwilling to clarify the scope.
and meaning of section 56. 12025, even though she herself pronounces. frame grounding to be a
serious safety risk to miners. We find this to be a compelling indicator of the unreasonableness
of the Secretary's position. If the consequences of relying on frame grounding are as dire as the
Secretary suggests, we fi nd it baffling that the Secretary has so utterly failed to clarify the scope
and meaning of section 56.12025 as applied to such grounding. We can take her no more
serious ly than the fabled boy who cried wolf.
The Secretary's liti gation strategy also illustrates the unreasonableness of her litigation
position. · Regarding cases decided on the pleadings, Congress warned:
Certain types of case dispositions may indicate that the
Government action was not substantially justified. A court should
look closely at cases, for example, where there has been a
judgment on the pleadings or where there is a directed verdict or
whc1.·e a prior suit on the same claim has been dismi ssed. Such
cases clearly raise the possibili ty that the Government was
unreasonable in pursuing the litigation.
1-I.R. Rep. No. 96-14 18, 96th Cong.; 2d Sess. I I ( 1980), reprinted in 1980 U.S.C.C.A.N. 4953,
4989-90. Here, the Secretary argued for application of a per se rule that frame grounding
violated section 56.12025 on the pleadings, without leaving open the possibility of pursuing her
case under any alternative theories. The judge rejected her arguments on a narrow and
dispositive question of law, in accord with two judges before him . The Secretary then failed to
appeal the judge's decision. In the face of two prior losses, we find the Secretary's pursuit of
such a strategy unreasonable.7
We also find MSHA's proposed penalties in this case ($6,000 against Schoonmaker
individually and $7,000 against CSG) to be particularly excessive, given that the alleged
violation was based on an interpretation of the regulation that had been rejected twice before by
Commission judges at the time the citation was issued. As a standard of comparison, the
Secretary has proposed only nominal penalties in other attempts to enforce her, so far,
unpersuasive interpretation of section 56.12025. We have determined administratively that in the

7

Nor did the Secretary plead in this case any "special circumstances [that] would make
an [EAJA) award unjust," 5 U.S.C. § 504(a)(l), among which Congress noted is "advancing in
good faith the novel but credible extensions and interpretations of the law that often underlie
vigorous enforcement efforts." H.R. Rep. No. 96-1418, at 11.

984

1981 MuTzer Crushed Stone case, the Secretary proposed a penalty of $67. In the two section
56.12025 cases that have been decided since the instant case, nominal penalties were also
proposed: $50 in Tide Creek Rock and $81 in Palumbo. The excessive increase in penalties
proposed in the instant case over an average penalty of$66 proposed in the other section
56.12025 cases is left completely unexplained by the Secretary and unquestioned by the majority.
This penalty escalation, coupled with the deliberate personalization of sanctions under section
11 O(c), leads us to wonder why the Secretary failed to litigate such a "significanC case beyond
summary decision.
Finally. we note that, because the burden of showing substantial justification rests with
the Secretary, it is incumbent upon her to provide additional support for her position beyond
what was argued on the merits. Oregon Natural Resources Council. 980 F.2d at 1332. On this
question. the judge found:
The Secretary offered nothing in this [E/\.IA] proceeding to
persuade me that my findings of unreasonableness in the
underlying proceeding were incorrect. The Secretwy merely
reiterates arguments that! have pre,·iously considered and
rejected.
18 FMSHRC at 1823 (emphasis added). And again, on appeal, the Secretary has oftered no
additional support for her position. She "only reasserts [her] position on the merits. and supplies
nothing new to justify [her] position and meet [her] burden." Oregon Natural Re.wurces
Council, 980 F.2d at 1332. Similarly, the majority collapses their EAJA analysis into an
endorsement of the Secretary's allegations made in the merits proceeding.!! Their primary focus
is on the issue of whether frame grounding is effective- an issue not before us .

We reject the majority's conclusion that the judge incorrectly collapsed his decision on
the merits into his evaluation of the reasonableness of the Secretary's position for purposes of the
EAJA proceeding. Slip op. at 9-10. The judge's decision clearly indicates he took a fresh look at
the record. 18 FMSHRC at 1822:23 ("Having considered both aspects of this argument. I again
find ... '';"Again, on review of the record, I find ... "). Moreover, given that the Secretary
merely reiterated her merits arguments in the EAJA proceeding (id. at 1823), with so little to
respond to, we find it hard to imagine what more the judge could have done. But even assuming
arguendo that the judge inadequately set forth the reasons and bases for his· EAJA decision, we
believe that the majority is required to remand the case for further development. It is well
established that Commission judges must analyze and weigh all probative record evidence, make
appropriate findings, and explain the reasons for their decisions, Mid-Continent Resources, Inc.,
16 FMSHRC 1218, 1222 (June 1994)- which, by the way, we believe the judge did here
adequately.
R

985

Accordingiy, for the foregoing reasons, we find that the judge correctly determined that
the Secretary failed to meet her burden of establishing that her position in the underlying
proceeding was substantially justified.9

9

In light of the majority's disposition, we do not reach the issues of whether the judge's
award of fees was legally correct and supported by substantial evidence. See S. PDR at 11-14
(raising the issue of whether judge erred in increasing the cap on fees above the maximum
specified in EAJA); 14 (raising the issue of whether the judge erred in awarding to CSG interest
costs incurred on unpaid legal bills).

986

Distribution

C. Gregory Ruffennach, Esq.
450 East 3rd Avenue
Durango, CO 81301
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

987

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

September 28, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEV A 97-84-R

v.
CONSOLIDATION COAL COMPANY

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

DECISION
BY: Jordan, Chairman; Riley and Verh~ggen, Commissioners
This contest proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is the decision by Administrative
Law Judge Gary Melick to vacate a section 104(b) withdrawal order, 30 U.S.C. § 814(b), issued
by the Department of Labor's Mine Safety and Health Administration ("MSHA") against
Consolidation Coal Company ("Consol") for its failure to abate a violation of the respirable dust
standard for underground coal mines set forth in 30 C.F.R. § 70.1 OO(a).2 19 FMSHRC 1581,
1587 (Sept. 1997) (ALJ). The Commission granted the Secretary of Labor's petition for
discretionary review challenging the judge's decision. For the reasons that follow, we affirm the.
judge's decision.

1

Commissioner Beatty recused himself in this matter and took no part in its
consideration.
2

Section 70.1 OO(a) states in pertinent part:
Each operator shall continuously maintain the average concentration
of respirable dust in the mine atmosphere during each shift to which
each miner in the active workings of each mine is exposed at or
bel<?w 2.0 milligrams of respirable dust per cubic meter of air.

30 C.F.R. § 70.100(a).

988

I.
Factual Background
Consol operates the Robinson Run No. 95 Mine, an underground coal mine in Harrison
County, West Virginia. Tr. 17. In approximately January 1996, a complaint was filed with
MSHA pursuant to section 103(g) of the Mine Act, 30 U.S.C. § 813(g), by Ann Martin, a belt
cleaner at the mine. Tr. 53; Ex. C-14 at 2. She alleged the presence of excessive dust at her
work position on the 5 North Mains No. 2 belt line. Tr. 53, 56-58. On February 20 and March 5,
1996, MSHA Inspector Scott Springer visited the mine and, on each day, he sampled Martin's
work position by placing a dust sampling pump on her. 19 FMSHRC at 1582. The average
respirable dust concentration for the two samples was 11.2 milligrams per cubic meter of air
("mg/m3"), far in excess of the 2.0 mg/m 3 limit set in section 70.1 OO(a). !d.
On March 18, 1996, Inspector Springer issued a citation to Consol under section 104(a)
of the Mine Act, 30 U.S.C. § 814(a), for violating the dust standard at Martin's work position.
ld. The citation required Consol to take corrective action to abate the violation "and then
sample ... each day until five valid samples" were submitted to MSHA. Id. The citation set
April I as the abatement date. ld. at 1584.
From March 20 to April2, 1996, Consol took five respirable dust samples at Martin' s
position. !d. The average respirable dust concentration was 2.9 mg/m3, which still exceeded the
dust standard. Id. On April 16, MSHA Inspectors Charles Thomas and William Ponceroff
visited the mine. Tr. 83-85. Inspector Thomas noted that the air velocity had been increased at
the 5 North Mains No. 2 belt line tailpiece. 19 FMSHRC at 1584. He observed that the operator
had begun to install tamper-proof valves on the sprays used to dampen the belt lines, in order to
prevent the sprays from being turned off by unauthorized personnel. ld. Inspector Thomas noted
that the 5 North Mains No.2 belt line appeared damp and that Consol haq ordered a different
type ofspraysys~em. ld.; Tr. 94.
Consol management told the MSHA inspectors that the new equipment would be
installed in time to start sampling on April 22, 1996. Tr. 91 . Based on this information, the
abatement date was extended to April 30, and Consol was required to take ·five valid samples,
starting on April22. 19 FMSHRC at 1584; Tr. 144.
On April 17, 1996, Consol contracted dust specialists from Conflow Inc. to help reduce
the dust levels at Martin's work position. Tr. 409-10. On May 6, Inspector Thomas returned to
the mine and was told by Dave McCullough, a Consol safety specialist, that Consol had
attempted to take dust samples at Martin's position between April 22 and May 3 but had
experienced problems obtaining valid samples. 19 FMSHRC.at 1584; Tr. 95-96; Gov't Ex. 4 at
4. McCullough informed the inspector that the MSHA Pittsburgh laboratory had rejected the
April 22 sample because of an invalid occupation code on the sample data card. Tr. 334-35. He
also told the inspector that the April 24 sample was invalid because it had been taken when

989

Martin had not worked her entire shift in the designated area. 19 FMSHRC at 1586; Tr. 336-37.
Inspector Thomas examined the mine's sampling log book and recorded that "[f]our (4) of the
five (5) required valid samples were submitted for the [belt cleaner] occupation between 4-16-96
and 5-6-96." 19 FMSHRC at 1584. He also noted that some of the samples had been voided,
including "4-24-96 cassette number 50-234511 [because the belt cleaner] did not work entire
shift at location [and that] ... the fifth valid sample was submitted but rejected by the computer
as invalid code on 4-22-96 and operator became aware [of the rejection on] 5-6-96." /d. at 158485.
Inspector Thomas extended the abatement date to May 10, 1996, to allow Consol more
time to obtain additional samples. Tr. 95-96. From May 3 to May 16, the operator did not take
any additional samples because Martin was on sick leave or away on union business. Tr. 345-47.
No other miner was assigned to work the 8-hour shift at Martin's work position during the time
she was not at the mine. Tr. 346.
On May 10, 1996, MSHA received a letter from Consol's mine superintendent, Walter
Scheller, stating that the proposed abatement measures were complete. Gov't Ex. 8 at 3. Also
on May 10, MSHA's Pittsburgh laboratory issued a Report of Continuing Noncompliance (the
"May 10 report"), showing that Consol had submitted five valid samples with an average dust
concentration of2.2 mg/m3 , which still exceeded the dust standard. 3 19 FMSHRC at 1586;
Gov't Ex. 5 at 2. By May 10, MSHA had corrected the invalid occupation code for the April 22
sample and included it as one ofthe five valid samples in the May 10 report. Tr. 334-36. The
report also included, as one of the five valid samples, the April 24 sample which was taken when
Martin did not work her entire shift on the 5 North Mains No. 2 belt line. 19 FMSHRC at 1586.
On May 16, 1996, Inspectors Thomas and Ponceroff returned to the mine and discussed
with management what abatement steps had been taken. /d. at 1585; Tr. 120-21 . After traveling
the length of the 5 North Mains No. 2 belt line, the inspectors concluded that Consol had not

3

The May 10 report listed the five valid samples as follows:
Cassette
No.
50233806
50234511
50234501
50233800
50233870

Date

MRE Equiv.
Concentration
1.7
2.2

04-22-96
04-24-96
05-01-96
05-02-96
05-03-96

2.5
2.6
2.0

A vg. Cone. 2.2
Gov'~ Ex. 5 at 2.

990

made a good faith effort to abate the violation. Tr. 123-24. Inspector Ponceroff issued a 104(b)
order4 to the operator, in which he noted that "the results of the respirable samples (average) was
2.2 mg/m3." 19 FMSHRC at 1585.

II.
Procedural Back~round

A.

The Underlying Section 104(a) Citation: Docket No. WEV A 96-165

Both the section 104(a) citation and the subsequent section 104(b) order were initially
litigated together in Docket No. WEV A 96-165. On September 10, 1996, the Secretary filed a
petition for assessment of civil penalty relating to "each alleged violation set forth in attached
Exhibit A." S. Pet. at 1. While the "Type of Action" in the petition was described as "1 04A1048," Exhibit A included a copy of the 104(a) citation but not a copy of the 104(b) order. id. at
Ex. A.
The case was assigned to Administrative Law Judge Melick. During a pre.-hearing
conference on January 7, 1997, the day of the hearing, a question arose as to the validity of the
April 22 sample included in the May 10 report. S. Mot. to Withdraw Mot. to Amend Pleadings
at 1-2 ("S. Withdrawal Mot."); Letter from Secretary to Consol of 1/23/97 ("S. Letter"). During
the hearing later that day, the Secretary filed a motion, at the prompting of the judge, to amend
her 104(b) order to state that Consol had not submitted five valid samples for the period April 22
to May 3, 1996. Tr. of Hearing on January 7, 1997, at 3-5. The motion was apparently based on
the alleged invalidity of the April 22 sample and did not focus on the voided April 24 sample. S.
Withdrawal Mot. at 1-3; S. Letter. The judge granted the Secretary' s motion to amend the order
and he postponed the hearing. Tr. ofHearing on January 7, 1997, at 5.
In a letter dated January 23, 1997, the Secretary informed Consol that the April 22 sample
had been incorrectly· classified as a voided sample and that Consol had in fact submitted five
valid samples by the abatement date of May I 0, I996. S. Letter. The Secretary did not refer to
the April 24 sample. On February 26, 1997, the Secretary moved to withdraw her motion to
amend the order, because, she now represented, Consol had submitted five valid samples. S.
Withdrawal Mot. at 2-3. Again, the Apri124 sample was not mentioned. The judge granted the
Secretary' s motion to withdraw her motion to amend the order. On March 11, I 997, the judge
issued an order that he lacked jurisdiction over the section I 04(b) order because it was not
attached to the Secretary' s petition for assessment of a civil penalty.

4

Under section 104(b) of the Mine Act, if an MSHA inspector finds, during a follow-up
inspection, that a violation described in a 104(a) citation "has not been totally abated within the
period of time as .originally fixed therein or as subsequently extended, and .. . that the period of
time for the abatement should not be further extended," the inspector shall issue a withdrawal
order to the operator. 30 U.S.C. § 814(b).

991

The hearing on the 104(a) citation was resumed on March 18, 1997, and was concluded
on the following day. The judge issued his decision on June 19, 1997, affirming the 104(a)
citation that Consol violated the dust standard, based on the February 20 and March 5 samples
taken by MSHA. 19 FMSHRC 1174, 1176 (June 1997) (ALJ). In his discussion of the good
faith attempt to achieve rapid compliance criterion for penalty assessment purposes, the judge
found that "in order to abate the violation the operator was required to obtain 'five valid samples'
of the subject belt examiner and to submit those samples to the Pittsburgh respirable dust
·
processing laboratory." I d.
B.

104(b) Withdrawal Order: · Docket No. WEV A 97-84-R

On March 14, 1997, Consol filed a notice of contest with the Commission, challenging
the validity of the 104(b) order.5 Administrative Law Judge Melick was assigned the case.
Consol filed its brief on August 15, 1997, arguing that the Secretary did not have a legal basis for
issuing the 104(b) order because she did not have the required five valid samples needed to
determine if the violation had been abated by the abatement date. C. Post-hearing Br. at 4-6.
Consol contended that one of the five samples used by MSHA, the April 24 sample, was invalid
because it had been taken outside the designated work area. ld. at 4-5. Furthermore, Consol
argued that, even if the Secretary had shown that the violation had not been totally abated by the
abatement date, its abatement efforts justified a further extension of the abatement period rather
than the issuance of a 104(b) order. Id. at 11-12.
In a letter dated August 21, 1997, the Secretary informed the judge that the parties had
agreed to forgo a hearing and to use the record developed in the underlying 104(a) citation case
(Docket No. WEVA 96-165) as the record in the 104(b) order case (Docket No. WEVA 97-84R). In her brief to the judge filed on August 25, 1997, the Secretary argued that MSHA had a
legal basis for issuing the 104(b) order because it had five valid samples which showed that
Consol had failed to abate the violation by the abatement date. S. Post-hearing Br. at 10. She
asserted that,_based on the sample evidence, she had established a prima facie case that Conso1
did not abate by the abatement date and that Consol had failed to rebut the prima facie case. ld.
at 10-12. The Secretary did not dispute that the April24 sample was obtained when the belt
cleaner had not worked her entire shift in the designated area. ld. at 12-13. However, she argued
that Consol could not claim that the sample was invalid because it had failed to inform the
MSHA laboratory that the sample was invalid. ld. at 12-14. Furthermore, she argued that
MSHA properly declined to extend the abatement period for a third time because Consol had
failed to take adequate corrective measures. ld. at 17-25.

5

On March 25, 1997, the Secretary moved to dismiss Consol ' s notice of contest,
claiming it was not filed in a timely manner under 29 C.F.R. § 2700.25. On April29, 1997, the
judge issued an order denying the Secretary's motion on the ground that Consol's failure to
timely file was caused by the Secretary's failure to properly include the 104(b) withdrawal order
in her September .9, 1996, petition for assessment of a civii penalty.

992

In his decision of September 15, 1997, the judge concluded that the Secretary failed to
show that Consol did not abate the violation by the abatement date. 19 FMSHRC at 1585. He
concluded that the April 24 sample was invalid and, as a result, MSHA did not have the required
five valid samples to issue the 104(b) order. Jd. at 1585-86. He also concluded that Consol gave
MSHA sufficient notice that the April 24 sample was invalid. !d. at 1586.
III.
Disposition
The Secretary contends that the judge erred in vacating the 104(b) order. S. Br. at 8. She
asserts that, in order to show the validity of the 104(b) order, she needed to prove that Consol did
not totally abate the underlying violation by the abatement date. ld. at 7. The Secretary argues
that, because Consol failed to obtain five valid samples, she could not determine whether or not
the violation had been totally abated. Jd. at 9. Accordingly, the Secretary asserts that the burden
of proof should shift to Consol to prove that it totally abated the violation by the abatement date
(the "shift-in-burden theory"). !d. at 9-10.
Alternatively, the Secretary argues that she established a prima facie case that Consol did
not totally abate the violation by the abatement date and that Consol failed to rebut her prima
facie case. Jd. at 16; S: Reply Br. at 5. Furthermore, she contends that MSHA was correct not to
extend the abatement date for a third time because Consol did not make a good faith effort to
abate the violation. S. Br. at 17-21. The Secretary requests that the Commission reverse the
judge's decision vacating the 104(b) order and remand the case to the judge for assessment of a
civil penalty. ld. at 22.
Consol argues that the judge correctly vacated the 104(b) order. C. Br. at 12, 17-18. It
asserts that the Commission should not consider the Secretary's shift-in-burden theory because it
was not argued before the judge. Id. at 10-13. Consol also argues that the Secretary has not
demonstrated the required preponderance of evidence to support her prima facie case that Consol
failed to abate the violation by the abatement date. /d. at 17. Consol requests that the
Commission affirm the judge's decision vacating the 104(b) order. ld. at 18.
In reply, the Secretary contends that the judge was given sufficient notice of her shift-inburden theory because she argued below that Consol had the burden to inform MSHA of any
sampling problems. S. Reply Br. at 7.
The question on review is whether the judge erred in vacating the 104(b) order on the
grounds that the Secretary did not have a legal basis for issuing the order as a result of Consol's
failure to submit five valid dust samples.

993

A.

Whether the Burden of Proof Shifts to Consol

Under the Mine Act and the Commission's procedural rules, "[e]xcept for good cause
shown, no assignment of error by any party shall rely on any question of fact or law upon which
the administrative law judge ha[s] not been afforded an opportunity to pass." 30 U.S.C.
§ 823(d)(2)(A)(iii); 29 C.F .R. § 2700. 70(d). See Beech Fork Processing, Inc. , 14 FMSHRC
1316, 1321 (Aug. 1992) (holding that the Commission is barred from considering the Secretary's
theory because it was not raised before the judge); Union Oil Co. of Cal., 11 FMSHRC 289, 30001 (Mar. 1989) (declining consideration of the Secretary's argument because it was not made
before the judge). Upon reviewing the Secretary's post-hearing brief, we find the Secretary did
not argue her shift-in-burden theory before the judge.
We do not agree with the Secretary's assertion that, because she argued below that
Consol was required to inform MSHA of any problems with dust samples, the judge was given
notice of her shift-in-burden theory. S. Reply Br. at 7. The requirement to inform MSHA about
sampling problems is not similar to the burden of proving that the violation had been totally
abated by the abatement date. In addition, Consol never disputed before the judge that it was
required to inform MSHA of sampling problems and the Secretary never raised the issue below
of shifting this requirement to another party.
·
The Secretary has also not shown good cause under section 113(d)(2)(A)(iii) why the
Commission should still consider her belatedly-raised theory. 30 U.S.C. § 823(d)(2)(A)(iii). The
Secretary had ample opportunity to argue her theory before the judge. When she filed her posthearing brief, she had notice there was an issue as to whether five valid samples had been
obtained. Consol notified Inspector Thomas that the April 24 sample was invalid. 19 FMSHRC
at 1586. The Secretary filed a motion to amend the 104(b) order to reflect that five valid samples
had not been obtained by Consol between April 22 and May 3, 1996. For reasons never fully
explained, she th~n changed her mind and withdrew the motion to amend. In addition, Consol
clearly argued in its post-hearing brief, filed ten days before the Secretary's brief, that it did not
obtain five valid samples between April22 and May 3, 1996. C. Post-hearing Br. at 5-6.
Based on the foregoing, the Commission will not consider the Secretary's shift-in-burden
theory because the Secretary failed to raise it before the judge.

B.

Whether the Secretary Established a Prima Facie Case that Consol did not Abate
the Violation

We also find unpersuasive the Secretary's alternative argument that she had established a
prima facie case that Consol failed to abate the violation by the abatement date. S. Br. at 16.
When she made this argument to the judge, she based it on her claim that there were five valid
samples and their average concentration exceeded the dust standard. S. Post-hearing Br. at 1017. The Secretary makes a similar prima facie claim on review but she does not explicitly argue

994

that Consol took five valid samples. S. Br. at 16; S. Reply Br. at S. We assume that, as with her
argument before the judge, the Secretary on review is basing her prima facie claim on the
assertion that Consol submitted five valid samples and the average concentration of the samples
exceeded the dust standard.
When reviewing an administrative law judge's factual determinations, the Commission is
bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159,2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). It is undisputed that Martin, the belt cleaner, did not work her entire 8hour shift in the designated area on the day that the April 24 sample was taken. Tr. 110-11. It is
also undisputed that, in order to obtain a valid dust sample, the designated area must be sampled
continuously for the entire shift. 30 C.F.R. § 70.201 (b). Accordingly, there is substantial
evidence to support the judge's conclusion that the April 24 sample was not valid. 19 FMSHRC
at 1586. Because the April 24 sample comprised one of the five samples used in the May 10
report, we also find that there is substantial evidence that, contrary to the Secretary's prima facie
claim, the Secretary did not have the required five valid samples needed to show that Consol
failed to abate the violation by the abatement date.
Our holding is a narrow one. We do not mean to suggest that the failure to take five valid
samples is generally a valid defense to a 104(b) order issued for failure to abate a violation of
section 70.1 OO(a). On the contrary, proof of failure to take necessary samples required to
terminate a dust citation will in most such cases establish the basis for a 104(b) order. Thus,
when the Secretary became aware that the April 24 sample was not valid, she had the option, but
chose not to use it, of amending the withdrawal order to state that it was issued because Consol
failed to obtain five valid samples (a requirement stated in the original 104(a) citation). Even in
the absence of a .formal amendment, if she had at least litigated this theory before the judge, the
Secretary could have defended her withdrawal order on the undisputed basis (C. Post-hearing Br.
at 5-6) that Consol did not obtain five valid samples. See Faith Coal Co., 19 FMSHRC 1357,
1362 (Aug. 1997) (holding that where issue is actually litigated, formal amendment of pleadings
is unnecessary). It is the Secretary's unexplained decision to eschew this argument that leads us
to affirm the judge's dismissal of the 104(b) order.

995

IV.
Conclusion
For the foregoing reasons, we affirm the judge's decision vacating the 104(b) order.

~k r. v.{ /....,.?-

Theodore F. Verheggen, Commissione~
.

996

/ i /

~-'

l

Commissioner Marks, dissenting:
The judge's determination in this case amounts to a holding that an operator's failure to
produce five valid respirable dust samples, after receiving two extensions to do so, is a defense to
issuing a failure to abate order. Because I cannot subscribe to such an illogical result, I dissent.
Section 104(b) of the Mine Act provides:
If, upon any follow-up inspection of a coal or other mine,
an authorized representative of the Secretary finds (1) that a
violation described in a citation issued pursuant to subsection (a) of
this section has not been totally abated within the period of time as
originally fixed therein or as subsequently extended, and (2) that
the period of time for the abatement should not be further
extended, he shall determine the extent of the area affected by the
violation and shall promptly issue an order requiring the operator
of such mine ... to immediately cause all persons . . . to be
withdrawn ... .
30 U.S.C. § 814(b) (emphasis added).
On March 18, 1996, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Consol a respirable dust citation under 30 C.F.R. § 70.1 OO(a) on the grounds
that the dust samples showed an average concentration of 11.2 mg/m3 for a certain occupation
and set the time for abatement as April 1. Gov't Ex. 4 at 1. It is undisputed that between March
20 and April 2, the average respirable dust concentration was 2.9 mg/m3, which still exceeded the
dust standard and MSHA extended the time for abatement to April30. ld. at 3. On May 6,
Consol reported that it had experienced problems obtaining valid samples and the abatement day
was extended to May 10. 19 FMSHRC at 1584; Tr. 95-96; Gov't Ex. 4 at 4. The average of
these problem samples was 2.2 mg/m3 • 19 FMSHRC at 1585-86. From May 3 to May 16, the
operator did not take any additional samples. Tr. 345-4 7. On May 16, MSHA inspectors
returned to the mine and concluded that Consol had not made a good faith effort to abate the
violation. 19 FMSHRC at 1584; Tr. 120-21 , 123-24.
The inspectors issued the section 104(b) order at issue, reciting in extensive detail that an
adequate effort was not made to abate the original March 18, 1996 citation. Gov't Ex. 9. The
order stated:
Upon investigation of the changes after the second continued
noncompliance, the following conditions were observed: a tamper
proof intentional shutdown of the spray system for the No.2, 5-N
belt was not installed. Two of the 3 sprays (top) were shut off.
The top belt was dry from the No. 64 crosscut to the No. 91

997

crosscut, a distance of 2,700 feet. The water spraying system for
the 8D beltline did not have a water spray for the top surface of the
top belt. The valve to prevent intentional shutdown of the water
spraying.system was connected to a hose, but not installed in the
water system. A citation for float coal dust was issued at the 8-D
belt transfer where coal is dumped on the No.2, 5 North beltline.
The tamper proof valve to prevent intentional shutdown of the
sprays for the 7-D system was not installed to prevent the sprays
from being shut off. Two of the three bottom sprays were turned
off. The 9-D beltline also dumps coal on the 5N, No.2 beltline. A
top spray was not installed to spray the top surface of the top belt.
Management was aware that the valve to minimize intentional
shutdown was being defeated by using an acetyline wrench. This
had occurred on at least 2 occasions. Measures were not
implemented to prevent this from happening. Management has
failed to assure that the new system for the water were installed
and properly maintained. No other means of evaluation were
implemented by the company.
19 FMSHRC at 1585. The order also stated that the average result ofthe respirable dust samples
was 2.2 mg/m3 . Jd.
I conclude that, on May 16, 1996, despite the fact that the MSHA inspectors may have
incorrectly relied on this 2.2 mg/m 3, it was undisputed that "[a]n adequate effort was not made to
abate" the citation. Id. As the judge found, MSHA granted the operator a second extension
because it was having problems obtaining valid samples. ld. at 1584-85. Consol, however,
failed to take another sample during the second extension period. Under the plain terms of Mine
Act section 104(b), the citation had not been "totally abated." Thus, the MSHA inspectors were
well within their discretion to issue the section 104(b) order. See Energy West Mining Co. v.
FMSHRC, 111 F.3d 900, 902-04 (D.C. Cir. 1997) (holding that inspector's decision to issue
section 104(b) order was subject to review for abuse of discretion).
Section 70.201 (d) provides: "During the time for abatement fixed in a citation for
violation of section 70.100 (Respirable dust standards) ... , the operator shall take corrective
action to lower the concentration of respirable dust to within the permissible concentration and
then sample each production shift until five valid respirable dust samples are taken." 30 C.F.R.
§ 70.20l(d). Consol violated the standard's unequivocal requirement that an operator sample
each production shift until five valid respirable dust samples are taken. The risk of failing to take
valid samples should of course be bourne by the operator. See Harlan Cumberland Coal Co., 19
FMSHRC 1521,1524 (Sept. 1997) ("Any risk that the samples might not reach MSHA properly
lies with the operator."). For this reason, I cannot agree with the majority and uphold the
dismissal of a withdrawal order that was well within the discretion of the two MSHA inspectors
to issue, given the operator's less than rigorous attempt to sample each production shift.

998

Although the Secretary may have been mistaken in failing- to amend the order to allege
that Consol had failed in obtaining five valid samples, it is undisputed that Consol failed in that
duty. Thus the judge's holding exalts form over substance and produces the absurd result that an
operator's failure to comply with the respirable dust standard may serve as a defense to a
withdrawal order. Because the record compels the conclusion that Consol failed to adequately
abate the respirable dust citation, I would reverse the judge's dismissal of the withdrawal order at
issue. See American Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (holding that where
the record can support only one conclusion, remand to the judge for reconsidera ·on would serve
no purpose).

999

Distribution
W. Christian Schumann, Esq.
Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Elizabeth Chamberlin, Esq.
Consolidation Coal Comp~y
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1000

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

September 29, 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
INTERNATIONAL CHEMICAL
WORKERS' UNION COUNCIL

Docket No. SE 94-362-RM

v.
ASARCO, INCORPORATED

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

DECISION
BY: Marks, Riley, Verheggen, and Beatty, Commissioners
This i~ a contest proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. ( 1994) ("Mine Act" or "Act"), in which Asarco, Inc. ("Asarco"),
challenges a citation issued by the Department of Labor's Mine Safety and Health Administration
("MSHA"). The citation charges Asarco with violating 30 C.P.R. § 57.500l(a), which specifies
the exposure limits for airborne contaminants in metal/nonmetal mines, and 30 C.F.R. § 57.5005,
which addresses the control of exposure to those airborne contaminants. The proceeding had
previously been before the Commission on review after Administrative Law Judge Roy Maurer
granted Asarco's motion to dismiss. The Commission vacated the judge's order and remanded
the case to the judge for a hearing on the merits of the citation. Asarco, Inc., 17 FMSHRC 1
(Jan. 1995) ("Asarco f'). Following the hearing, the judge granted Asarco's contest and vacated
the citation. 19 FMSHRC 1097 (June 1997) (ALJ). Asarco filed a petition for discretionary
review ("PDR") challenging the judge's determ~ation that MSHA's use of single shift sampling
is a permissible method of determining whether silica dust concentrations exceed the limit set
forth in section 57.500l(a). The Secretary of Labor and the International Chemical Workers'
Union Council (the "Union") filed "conditional" petitions requesting review of the judge's
decision in the event the Commission granted Asarco's petition for review. The Commission
granted the petitions filed by Asarco, the Secretary and the Union. For the reasons that fo llow,
we vacate the direction for review.

1001

I.

Factual and Procedural Background
MSHA issued the citation in this proceeding after the agency sampled for airborne
contaminants at the "skip tender" position at Asarco's Young mine, an underground zinc mine in
Tennessee. ld. at 1098-99. The citation charged Asarco with violating sections 57.500l(a)' and
57.5005. 2 ld. at 1097. The citation, based on a single sample taken during an eight-hour shift,
alleged that the miner was exposed to 2.3 milligrams of respirable silica-bearing dust per cubic
meter of air (''mg/m'"), which exceeded the permissible level of contaminants. Asarco I, 17
FMSHRC at 2-3. The citation further alleged that. although respiratory protective equipment
was in use. all feasible engineering controls were not being used to control the employees'
exposure to dust, as required by the regulations. !d. at 3.
Asarco filed a notice of contest and subsequently moved to vacate the citation based on
the Commission ·s decision in Keystone Coal Mining Corp., 16 FMSHRC 6 (Jan. 1994). In
Keystone , the Comrnission invalidated MSHA' s spot inspection program - under which MSHA
would determine whether mine operators violated the standard limiting levels of respirable coal
dust in underground coal mines (30 C.f..R. § 70.1 00) based on a single dust sample taken during
an eight hour shirt- because the Secretary had failed to engage in notice-and-comment
rulemaking in accordance with the Mine Act and the Administrative Procedure Act. ld. at 16.
In A.wrco 1, the Commission reversed the judge's dismissal ofthe citation based on the
Keystone decision. The Commission concluded that the legal basis for the Keystone decision
limited its application to air sampling in underground coal mines. Asarco /, 17 FMSHRC at 5.

1

Section 57.500l(a) provides in relevant part:
Except as permitted by§ 57.5005(a) ... the exposure to airborne contaminants shall not exceed, on
the basis of a time weighted average, the threshold limit values
adopted by the American Conference of Governmental Industrial
Hygienists, as set .forth and explained in the 1973 edition of the
Conferences's publication, entitled "TLV's Threshold Limit
Values for Chemical Substances in Workroom Air Adopted by
ACGIH for 1973," .. . .

30 C.F.R. § 57.500l(a).
2

Section 57.5005 provides in relevant part: "Control of employee exposure to harmful
airborne contaminants shall be, insofar as feasible, by prevention of contamination, removal by
exhaust ventilation, or by dilution with uncontaminated air." 30 C.F.R. § 57.5005.

1002

The case was remanded, and a hearing was held on the merits of the citation. The judge upheld
the merits of single-shift sampling as consistent with the regplations at issue. 19 FMSHRC at
1132. However, he vacated the citation on the ground that MSHA failed to maintain and adhere
to standardized procedures in its laboratory where the dust samples that were the basis for the
citation were analyzed. /d. at 1139-41. The judge therefore granted Asarco's contest. /d. at
1142. The judge also granted a motion for declaratory relief, filed by Asarco during the hearing,
in which it ~ought a declaration that the MSHA Denver laboratory cannot reliably report the
amount of silica in any single sample that it analyzes under its current procedures. /d.
Notwithstanding the judge's grant of its contest and his issuance of declaratory relief,
Asarco petitioned the Commission for discretionary review. challenging thejudge·s upholding of
single-shift sampling in metal/nonmetal mines. Asarco argued, inter alia, that single-shift
sampling is inconsistent \lvith the language of the regulations and is not a reasonable·means for
determining excessive exposure to silica dust. A. PDR at 3-5. In their conditional petitions for
discretionary review, the Secretary and the Union challenged the judge's issuance of declaratory
relief. S. PDR~ U. PDR. Both the Secretary and the Union also opposed Asarco's petition on the
ground that Asarco was not a person "adversely affected or aggrieved by a decision ofan administrative law judge.'' S. Opp'n at 3-6 (quoting 30 U.S.C. § 823(d)(2)(A)(i))~ U. Opp' n at 1-2.
II .
Disposition
A threshold issue before us is whether a party who has prevailed before an administrative
law judge may nevertheless petition the Commission to review determinations made by the judge
that are adverse to a position a party has taken during the proceeding.
In her opposition to Asarco's petition, the Secretary argues that, because Asarco received
all the relief it sought before the judge- vacating the citation and granting its motion for
declaratory relief - Asarco is not aggrieved. and the Commission is without jurisdiction to
consider the appear. S. Opp'n at 3-6; S. Resp. Br. at 1-3. The Secretary asserts that the judge's
determination that single-shift sampling is a permissible enforcement strategy is non-binding
and, therefore, Asarco can show no injury other tl)an that it may have to relitigate the issue. S.
Opp' n at 5-6. The Secretary also contends that ti~e Commission lacks jurisdiction to hear
Asarco's request for review of a·finding that was unnecessary to the judge's ultimate
determination. S. Resp. Br. at I, 3, 5-8. Finally, the Secretary cautions that recognizing the right
of prevailing parties to appeal from portions of decisions with which they are dissatisfied would
encourage litigants to file many unnecessary appeals with the Commission. S. Opp'n at 6. In
support of the Secretary's position, the Union argues that Asarco is not an aggrieved party and,
therefore, lacks standing to challenge the judge's finding regarding single-shift sampling. U.
Opp'n at 1-2.

1003

Asarco responds that the judge'.$ finding that single-shift sampling is valid is appealable
because it did not prevail on that issue. A. Br. at 15 n.l9. Further, Asarco argues that the singleshift testing policy continues to be applied. and the threat of injury to Asarco is real.3 Id at 16.
Asarco states that other cases have been stayed pending a Commission decision regarding singleshift sampling. Id In its reply brief, Asarco disputes the Secretary's suggestion that it received
all the relief it sought before the judge. A. Reply Br. at 29. Finally, Asarco asserts that it falls
within judicially-created exceptions to the general rule barring appeal by winning parties. Id at
31.

Section ll3(d)(2)(A)(i) ofthc Mine Act provides, in relevant part. that "(a]ny person
adversely affected or aggrieved by a decision of an administrative law judge, may file and serve a
petition for discretionary review by the Commission of such decision .... '· 30 U.S :C.
§ 823(d)(2)(A)(i). ''The phrase ·person adversely a1Tected or aggrieved' is a term of art used in
many statutes to designate those who have standing to challenge or appeal an agency decision,
within the agency or before the courts." Director. q{fice of Workers' Compensation Prowams v.
Newport News Shipbuilding and DIJ' Dock Co., 5 I 4 U.S. I 22. 126 ( 1995).
The Mine Act further states that review "shall not be a matter of right but of the sound
discretion of the Commission." 30 U.S.C. ~ 823(d)(2)(A)(i); see Commission's Rules of
Procedure, 29 C.F.R. ~ 2700.70(a). (b): see also S. Rep. No. 181, 95th Cong.. at 48 (1977),
reprinted in Senate Subcommittee on Labor. Committee on Human Resources, 95th Cong.,
Legislative HisiOIJ' <~/'the Federal Mine S({/ety and Health Act<~{ 1977, at 636 (1978) (discussing
the Commission's broad discretion in deciding whether to grant review). Agencies retain
substantial discretion in formulating, interpreting, and applying their own procedural rules.
Climax Molybdenum Co. v. Secrelwy <?f Lahor, 703 F .2d 447, 451 (1Oth Cir. 1983) (citing
American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970)). However, in
exercising its discretion, "an agency receives guidance from the policies that underlie the 'case or
controversy' requirement of article III," including "examination ofthe proper institutional role of
an adjudicatory body and a concern for judicial economy." ld.
We addressed the "aggrieved person" requirement of section 113(d)(2)(A)(i) in MidContinent Resources, Inc., 11 FMSHRC 2399 (Dec. 1989) ("Mid-Continent f'). There, we had
granted a petition for discretionary review from the American Mining Congress ("AMC"), which
was not a party to the proceeding before the judge. ln vacating our grant of the AMC's petition,
we eschewed a literal approach to application of the aggrieved person requirement of section
113(d)(2). ld. at 2401. We were guided by general principles governing appeals in "traditional
adversariallitigation" and stated, "we discern no warrant for an interpretation of section 113(d)'s
review procedure that is out of line with normal litigation processes or that is likely to complicate
or prolong the resolution of disputes under the Act." !d. at 2401-02.

3

Asarco also seeks a declaration from the Commission that the Secretary can never
prove a violation of the respirable dust standard by use of a single-shift sample. A. Br. at 16.

1004

In-concluding that the AMC lacked standing to file a review petition, we stated:
Here, literally speaking, there is not a "case or controversy"
involving the AMC under the Mine Act in the context of the
present proceeding. Nor has the AMC demonstrated how the
judge's dismissal of the Secretary's enforcement proceeding has
had an adverse impact on it. Instead, the AMC argues that it is
"adversely affected or aggrieved" because it has an interest in the
legal principles involved in.this proceeding .... However, eve1y
Commission proceeding, to some extent, involves an interpretation
of the Mine Act, a mandatory standard, or some legal principle
affecting the enforcement or meaning of the Mine Act. Under the
AMC's position, mining trade associations. mine operators, and
miners generally would have a sunicient interest in Commission
proceedings to bestow upon them the right to file a petition for
review of most administrative law judge decisions. We are
confident that Congress. in enacting the Mine Act, did not intend to
create such a potential litigation "free-for-all" in review
proceedings before the Commission.
Id at 2403-04 (emphasis in original).

The issue in Mid-Continent I involved the right of a non-party to file a review petition
where the Secretary had vacated the citation and the judge had dismissed the proceeding.4 Thus,
Mid-Continent I is not directly controlling here, where the judge has issued a decision in a party's
tavor. Nevertheless, much of our reasoning in Mid-Continent I applies to this case. Extending
the right to petition for review by a prevailing party raises the spec~re of the "litigation free-forall" that we sought to avoid in Mid-Continent. If we were to grant the right to challenge adverse
factual findings or legal conclusions to a party who has prevailed before an administrative law
judge, the scope of the issues that could be appealed would be broadened significantly from our
present practice.

4

In Mid-Continent Resources, Inc., 12 FMSHRC 949 (May 1990) ("Mid-Continent If'),
the Commission addressed Mid-Continent's request for declaratory relief in the same proceeding.
The Commission concluded that the case was moot, reasoning that, once the Secretary vacated
the underlying citation, the enforcement action was extinct. ld at 956. In Mid-Continent II, the
issue of whether Mid-Continent was an aggrieved person withing the meaning of section
ll3(d)(2) was not raised or argued to the Commission. Unlike Mid-Continent II, in the instant
case the administrative law judge issued a decision from which Commission review could be
sought by an "aggrieved person." Subsequent to Mid-Continent I and Mid-Continent II, the
Commission held that the Secretary's decision to vacate citations is unreviewable.
Mechanicsville Concrete, Inc., 18 FMSHRC 877,879-80 (June 1996); RBK Constr., Inc., 15
FMSHRC 2099,2101 (Oct. 1993).

1005

Other statutes with standing requirements simil~r to the Mine Act support our treatment
of appeals by prevailing parties under section 113(d)(2). Section 10( f) of the National Labor
Relations Act ("NLRA") provides that "[a]ny person aggrieved by a final order of the
Board . .. may obtain a review of such order [in an appropriate United States circuit court of
appeals] ...." 29 U.S.C. § 160(f). 5 In Boeing Co. v. NLRB. 89 LRRM 2672 (4th Cir. 1975), the
court granted the NLRB's motion to dismiss the petition fo r review that was filed by Boeing,
which had prevailed in the administrative proceeding below and had all unfair labor practice
charges aga.inst it dismissed. The court held that Boeing could not assert that it was "aggrieved"
and that the statute did not allow a victorious party to challenge adverse underlying fi ndings and
conclusions. /d. at 2674. The court reasoned that the adverse findings would have neither
collateral estoppel nor res judicata effect in future proceedings involving Boeing. because ·•of the
general lack of ability of the winning party to obtain as broad a scope of appellate review as is
available to the losing party." /d.; see also Deaton Truck Line. Inc. v. NLRB, 337 r:.2d 697,698
(5th Cir. 1964) (finding that appellant lacked standing to appeal because, as victorious party
below, it ''is not a party aggrieved by the Board's order'') (emphasis in original). We find this
rationale persuasive. because in the present case the judge ·s decision has neither res judicata nor
collatera l effect in future cases in which the issue of si ngle-shill sampling may be raised. See
also Commission Procedural Rule 72. 29 C.F.R. ~ 2700.72 ("An unreviewed decision of a Judge
is not a precedent binding upon the Commission.").
While the Occupational Safety and Health Review Commission ("OSHRC') has not
addressed the situation at issue, it has interpreted in another context the "aggrieved party"
requirement of the Occupational Health and Safety Act of 1970 ("OSH Act"). The OSH Act
regulation concerning OSHRC's discretionary review also contains language limiting standing
before that Commission to parties ''adversely affected or aggrieved by the decision." 29 C.F.R.
§ 2200.91 (b). Applying that regulation, OSHRC denied a request for review of a de minim us
violation, noting that "[s]ince complainant does not take issue with the Judge 's disposition and
respondent is not specifically prejudiced thereby, the Commission declines to pass upon, modify,
or change the .Judge's decision." Westburne Drilling. Inc., 5 OSHC (BNA) 1457, 1457 (No.
15631' 1977).
Finally, we find support for our approach in the law governing appeals in the federal court
system. The general rule in federal courts is that parties may not appeal adverse portions of
district court judgments in their favor. See Cal(fornia v. Rooney, 483 U.S. 307, 311 (1987) ("The
Court of Appeal's use of analysis that may have been adverse to the State's long-term interests
does not allow the State to claim status as a losing party for purposes of this Court's review.");
19 James Wm. Moore, Moore's Federal Practice § 205.04[1 ], at 205-42 to 205-43 (Donald R.
Coquilette et al. eds, 3d ed. 1998) (quoting Deposit Guaranty National Bank ofJackson v. Roper,
445 U.S. 326, 334 ( 1980)). The Fourth Circuit elaborated that "[a]n injury in fact is required for
a party to be aggrieved for purposes of being able to appeal; the party's desire for better

5

Unlike the Mine Act, the NLRA contains no parallel provision governing appeals from
administrative law judge decisions to the Board. See 29 U.S.C. § 160(c); 29 C.F.R. § 102.46.

1006

precedent cloes not by itself confer standing to appeal., HCA Health Servs. of Virginia v.
Metropolitan L((e Ins. Co., 957 F.2d 120, 124 (4th Cir. 1992).
Some cases on which Asarco relies recognize that, so long as a prevailing party retains a
sufficient stake in continued litigation, it may appeal adverse aspects of a decision. See A. Reply
Br. at 31-33 (citing R. T. Vanderbilt v. OSHRC, 728 F.2d 8 I 5 (6th Cir. 1984); Roper, 445 U.S. at
334; Electri~al Fillings Co1p. v. Thomas & Betts Co., 307 U.S. 241 (1939)). While limited
exceptions exist to the general rule denying prevailing parties standing to appeal from adverse
find ings unnecessary to the fi nal adjudication. we find that Asarco's attempt to fit its request
within these exceptions is misplaced. None of the cases cited by Asarco stands for the
proposition that a party such as Asarco- which has prevailed below, will suffer no collateral
effects from our denial of review and which retains no economic interest related to the vacated
citation- would have standing in federal court to challenge an adverse finding unnecessary to
the final determination.
Both Asarco (A. Reply Br. at 32) and the dissent (slip op. at II) point to the Sixth
Circuit's opinion in Vanderbilt. which found that OSHRC's finding that a product sold by
Vanderbilt contained asbestos "may have a substantial effect on the behavior of ceramic
manufacturers concerned about the safety of the ... product." thereby supplying the ·'case or
controversy to consider Vanderbilt's appeal.'. 728 F.2d at 817. Here. by contrast, the judge
upheld a sampling technique that has been in use for over 20 years, thereby maintaining the status
quo. See 19 FMSHRC at 11 35 ("[T]he record is devoid of any indication as to why, after more
than 20 years of enforcing Section 57.500 I (a) by single samples .... a multiple sample position
has suddenly surfaced."). The judge's decision did not alter the behavior of these litigants or of
any third parties. Moreover, Asarco retains the right to challenge the Secretary's single-shift
sampling enforcement policy in a future case where determining whether the dust standard was
violated necessitates a ruling on the validity of single-shift sampling. Asarco's right to challenge
the Secretary's policy is not impaired by our decision today. Thus, we find Vanderbilt
inapposite.
Likewise, Roper, relied upon by Asarco and the dissent, is an example of a limited
exception, inapplicable here, to the rule that prevailing parties may not appeal the merits of
adverse rulings. The appellants in Roper sought review of the judge's denial of their request for
class certification, despite the district court's award to the plaintiffs of the maximum individual
amount. 445 U.S. at 330, 340. The Supreme Court held that the appellants satisfied the Article
III case or controversy requirement by retaining a substantial economic interest in their appeal of
a ruling denying them class certification, which would have allowed them to "shift part of the
costs of litigation to those who will share in its benefits if the class is certified and ultimately
prevails." !d. at 336. Asarco has no such economic interest here.

Electrical Fittings also does not support Asarco's request for review. That case involved
a defendant-appellant's request for review ofthe district court's determination that a patent was

1007

valid, despite the district court's dismissal of the case for failure to prove infringement. 307 U.S.
at 242. The Supreme Court in Electrical Fittings remanded the .matter, but explicitly limited the
remand to the excision from the district court's decree of the collateral finding that the patent was
valid, and specifically declined to review the merits. /d. The Court stated that the Second
Circuit had jurisdiction "to entertain the appeal, not for rhe puq)()se qfpassing on the merits, but
to direct the reformation of the decree." Id. (emphasis added) . The Court stressed that "[a] party
may not appeal from a judgment or decree in his favor. for the purpose of obtaining review of
findings he deems erroneous which are not necessary to support the decree." /d. (citations
omitted). By contrast, Asarco seeks review of the merits of single-shift sampling.6
Reduced to its essence, the dissent'-s main contention is that the resources expended by
Asarco and the Secretary in litigating this case warrant the Commission's review of the singleshift sampling issue. despite both the Secretary's and the Union's request to dismiss·for lack of
jurisdiction. and despite Asarco's victory before the judge. Slip op. at 10. 12. But "'the
inconvenience of having to initiate more than one suit [is not] a hardship sufficient to justify
review· when the issues are not otherwise tit for judicial resolution.'' Webb v. Department l~(
Health and Human Servs. , 696 F.2d 10 L I07 (D.C. Cir. 1982) (alteration in original) (quoting
New York S'tock Exchange. Inc. v. Bloom. 562 F.2d 736.742 (D.C. Cir. 1977)).7
Finally. we take little comfort in the dissent's explanation (slip ·op. at 12) that we would
retain discretion to reject petitions for discretionary review ti'om prevailing parties in the future.
The necessity of reviewing a flood of appeals from prevailing parties for the purpose of deciding
whether to grant review would in and of itself create an administrative burder1 on the
Commission. even if review is ultimately denied. As an application of sound policy, we think it
the wiser course to exercise our discretion under the Mine Act to review judges' rulings in
accordance with the well-settled law of standing. Accordingly, we vacate our direction for
review granting Asarco's petition and the ·'conditional'' petitions of the Secretary and the Union.
Pursuant to 30 U.S.C. § 823(d)(2)(A)(i), we deny review of the three petitions.

6

We also note that the passage in Moore's Federal Practice cited by the dissent relies on
Roper and Electrical Fillings as the only examples of cases where parties satisfied Article III
despite winning below. Slip op. at 10. As we have explained, Asarco's "rights" have not been
affected by the judge's single-shift sampling ruling.
7

Contrary to the dissent's assertion, we did not "clearly remand[]" (slip op. at 10) the
issue of single-shift sampling for consideration by the judge. Rather, we "vacate[d) the judge's
order dismissing the citation and remand[ed] for further appropriate proceedings consistent with
[our remand decision]." 17 FMSHRC at 6. Our remand did not require the judge to pass on the
merits of single-shift sampling.

1008

III.
Conclusion
For the foregoing reasons, we vacate the order granting review of Asarco's petition and
the order granting review of the "conditional" petitions for discretionary review filed by the
Secretary and the Union, and we deny review of the three petitions.

Marc Lincol n Marks, Commissioner

.~ ~d~
r ncs C. Riley, Commissioner

1009

.-- -·

Chairman-Jordan·, ~issenting:
This case, which was filed with the Commission in 1994, involved extensive discovery,
many expert witnesses, a sixteen day trial in 1996, and a voluminous record totaling over four
thousand pages. Although my colleagues vacate the order granting review of Asarco's petition
for review, I believe that the Commission should hear the claims raised by Asarco. I therefore
respectfully dissent.
Asarco brought this case in large part to challenge the validity ofMSHA's silica dust
sampling procedures. It came to the Commission five years ago seeking a meaningful, final
resolution of this matter. Both Asarco and the Secretary invested substantial time and money to
conduct thi s litigation. After devoting extensive resources to an issue which the Commission had
clearly remande9 to the judge. Asarco. Inc.. 17 FMSHRC I. 5 (Jan. 1995). and subsequently
losing on that issue. which is central to one of MSHA ' s most important and extensive
enforcement mechanisms. Asarco can hardly be characterized as a typical prevailing litigant. On
the contrary. it either will now have to continue to operate under a system which it claims
produces inaccurate samples. or will have to start from scratch and craft a new litigation
challenge. in which both Asarco and the Secretary will undoubtedly expend significant resources
to replay what has already been presented to the judge in this case. The judge upheld the
sampling policy to which Asarco objected. and unless it can obtain a contrary ruling from a body
such as the Commission or a court. Asarco will continue to be subject to citations and penalties
on the basis of a sampling system which it claims is inaccurate. Consequently, it stands as a
party ''adversely affected or aggrieved by a decision of an administrative law judge." 30 U.S.C.
~ 823(d)(2)(A)(i).
My conclusion that the Commission should review Asarco's appeal is consistent with the
legal principle that
(I)f a litigated issue was adjudicated expressly adversely to
the party prevailing on the merits. even though it was
immaterial to the final disposition, that party may retain an
interest in ~he matter sufficient to support appellate
jurisdiction.... A 'stake in the appeal' exists ifthe
collateral ruling affects the prevailing party's rights and if
erroneous would work harm to the prevailing party's
interest.
19 James Wm. Moore, Moore's Federal Practice § 205.04[1 ], at 205-42 to 205-43 (Donald R.
Coquilette et al. eds, 3d ed. 1998) (quoting Deposit Guaranty National Ba_nk ofJackson v. Roper,
445 U.S. 326, 334 (1980)). Clearly the judge's ruling on the single sampling issue was adverse
to Asarco, and affected its rights. If the judge is wrong and MSHA' s single sample approach is
not "'reasonably calculated to prevent excessive exposure to respirable dust"' (19 FMSHRC

1010

at 1135) (quoting American Mining Congress v. Marshall, 671 F.2d 1251, 1256 (lOth Cir.
1982)), Asarco's (as well as countless miners') interests will be_placed severely at risk.
My position is also supported by the Supreme Court's decision in Deposit Guaranty
National Bank ofJackson v. Roper, 445 U.S. 326 (1980), which established an exception to the
general rule that prevailing parties may not appeal. In that class action against a bank, the district
court denied the motion for class certification. /d. at 329. The bank subsequently offered each
named plaintiff the maximum amount each could have recovered. /d. Although the plaintiffs
refused the offer, the district court entered judgment in their favor. !d. at 329-30. The Supreme
Court affirmed the 5th Circuit's holding that the case was not moot on the ground that the
plaintiffs held an economic interest in class certi1ication (because they wanted to shift some of
the litigation expenses to other class members). !d. at 338-40. This was sufficient, according to
the Court, to permit the prevailing party to appeal the adverse collateral ruling, since the party
retained "a stake in the appeal satisfying the requirements of Art[icle] Ill." !d. at 334.
My refusal to vacate the order granting review of Asarco's petition is also consistent with
R. T Vanderbilt Co. v. OSHRC, 728 F.2d 815 (6th Cir. 1984). In that case, a pottery company
was charged with three violations of OSHA ·s asbestos standard. !d. at 816. The Occupational
Safety and Heal th Revievv Commission vacated the citation, but found that the talc product
manufactured by Vanderbilt (which had intervened) and used to make the pottery contained
asbestos fibers. !d. at 816-17. Relying on Deposit Guaranty, the 6th Circuit rejected OSHRC's
argument that the court had no jurisdiction over the case and that Vanderbilt could not appeal
from OSHRC's decision because it had received all the relief it required (the vacation of the
citation against Hull). !d. at 817. The 6th Circuit ruled that the Commtssion's determination that
Vanderbilt's talc contained asbestos, although not binding in future cases, could significantly
affect the actions of ceramic manufacturers concerned about the safety of the product. 1 /d.
Although my colleagues rely primarily on Mid-Continent Resources, Inc., 11 FMSHRC
2399 (Dec. 1989) ("Mid-Continent f'), I find it singularly inapposite. As they acknowledge (slip
op. at 5), the Con1mission in that case was focused on the question of whether a non-party could
file a petition for review after the Secretary had vacated a citation and the judge had dismissed
the proceeding. However, even though the operator had prevailed below, the Commission did
not dismiss its petition, but instead, went on to issue a substantive decision on its request for
declaratory relief. Mid-Continent Resources. Inc., 12 FMSHRC 949 (May 1990) ("MidContinent If'). We denied relief on the grounds that the controversy was speculative, that the
operator had not proven that similar incidents had occurred at its mines, or that its claim was

1

My colleagues' attempt to distinguish Vanderbilt (slip op. at 7) is misplaced. The
significance of Vanderbilt does not turn on the fact that it involved a decision which could
motivate "third parties to change their conduct in response to portions of a court's decision." /d.
Although that was the applicable fact situation in Vanderbilt, the Court nowhere intimates that its
ruling permitting the appeal should be restricted in this manner.

1011

widespread in the .industry. ld at 956-57. This is in stark contrast to Asarco, which will
continue to be subject to the Secretary's single sample enforcement process on a daily basis, has
asserted that other operators continue to receive single sample citations (A. Reply Br. at 33), and
indicates that many similar cases have been stayed pending the outcome of this proceeding. A.
Br. at 16. The Commission's admonition in Mid-Continent II that declaratory relief was too
abstract and that the operator should wait until a concrete case existed does not apply in the
instant proceeding. Here, Asarco has demonstrated "a substantial likelihood of recurrence of the
claimed enforcement harm or the imminence of repeated injury." Mid-Continent 11, 12
FMSHRC at 956.
My colleagues speculate that permitting review in this case could create a " litigation freefor-all." Slip op. at 6. Pursuant to our statutory authority, however, the Commission has the
unchallenged ability to dei1y petitions. Hearing this appeal in no way obligates us to grant review
of prevailing parties· petitions in subsequent cases. The beauty of the discretionary nature of our
review process is that we may use our judgment to select the cases appropriate for Commission
adjudication. If we are truly concerned about ensuring the effective use of Commission and party
resources we would be well placed to hear this appeaL instead of permitting four years of
extensive litigation, and the views of a judge expressed in excruciating detail in a thoroughly
written opinion. to be cast aside.
Accordingly. I would not vacate the petition for review. but would decide the case on the
merits.

1012

Distribution
Steven D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Randy Vehar, Esq.
Michael Spinker, Esq.
International Chemical Workers Union
1655 West Market Street
Akron, OH 44313
Henry Chajet, Esq.
David Farber, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037
David Goldman, Esq.
U.S. Steel Workers of America
5 Gateway Center
Pittsburgh, PA 15222
Michael F. Duffy, Esq.
National Mining Association
1130 l71h Street, N.W.
Washington,·D.C. 20036

1013

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

September 30, 1998

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

Docket No. EAJ 96-4

JAMES M . RAY, employed by
LEO JOURNAGAN
CONSTRUCTION CO., INC.

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

DECISION
BY: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners:
This proceeding involves the recovery of attorney's fees and expenses under the Equal
Access to Justic.e Act, 5 U.S.C. § 504 (1996) ("EAJA"). James "Mike" Ray ("Ray"), who was
employed by Leo Journagan Construction Co., Inc. ("Journagan"), prevailed over the Department
of Labor's Mine Safety and Health Administration ("MSHA") in the underlying section 11 O(c)
proceeding under the Federal Mine Safety and Health Act of 1977,30 U.S .C § 820(c) (1994)
("Mine Act" or "Act"). 18 FMSHRC 892 (June 1996) (ALJ). Thereafter, Ray filed an
application for fees and expenses on the basis that the Secretary's position on the two citations at
issue was not substantially justifie·d . Administrative Law Judge William Fauver denied the
application. 18 FMSHRC 2033 (Nov. 1996) (ALJ). Ray filed a petition for review with the
Commission challenging the judge's determination that the Secretary's position was substantially
justified. For the reasons that follow, we reverse the judge's determination of substantial
justification on the first citation but affirm as to the second.

1014

I.
Factual and Procedural Background
A.

The Mine Act Proceeding

Journagan is engaged in the mining and sale of limestone in southwestern Missouri.
18 ·fMSHRC at 892; Tr. 9. On March 28, 1995, MSHA Inspector Michael Marler conducted an
inspection of a portable rock crusher operated by Journagan . 18 FMSRHC at 892. While Marler
was present, rocks became stuck in the crusher. !d. Ray, Journagan's superintendent, drove
Marler to the top of a hill above the crusher. !d. at 893 . As Marler approached the crusher, he
observed Journagan employee Steve Catron working to unjam the crusher. !d. Catron was trying
to loosen with an iron bar rock that had become wedged in the crusher. !d.; Tr. 36-37. Initially,
when Catron began working to dislodge the jammed rocks, he and crusher operator Keith
Garoutte turned off the crusher controls and locked out the power at the generator trailer. 18
FMSHRC at 893. However, to determine whether the crusher was again operating, Garoutte
restored the power. ld After the power was restored, Catron and Garoutte attempted to "jog"
the crusher by turning it on and off to dislodge the rock that was wedged in the crusher jaws. Tr.
36-38. Catron pried the rock that was in the crusher jaws with the bar and then moved away, and
Garoutte started the crusher. 18 FMSHRC at 893-94.
When Marler saw Catron, he was straddling the gap between the crusher jaws with each
of his feet on a metal plate two inches above the crusher jaws. !d. at 893 . The jaws of the
crusher are tapered from a width of approximately 30 to 36 inches at the top and narrowing to 5
inches at the bottom. Tr. 34-35. The crusher jaws are approximately six feet four inches in
height, and the jammed rocks extended upward about two feet from the bottom of the crusher.
18 FSI\1HRC at 893 . There were rocks in the feeder chute waiting to enter the crusher just above
where Catron was standing. Jd. at 902. The iron bar that Catron was using to dislodge the rocks
was five to six .feet in length. !d at 893. He was wearing a safety belt that was attached by a
lifeline to a catwalk railing above where he was standing. !d. Garoutte watched Catron from the
doorway of the shed· housing the crusher controls that was uphill from the crusher. !d. Catron
unhooked the lifeline to his safety belt from the catwalk railing and then moved up to the grizzly, 1
which is located on the opposite side of the crusher from the catwalk about 1 Y2 feet above the
metal plates on which he had been standing. !d. & n.2 . After Catron moved up to stand on the
grizzly, be attached the lifeline to .a point above and behind the grizzly. !d. at 893-94. Catron
then signaled Garoutte, and he went in the shed to start the crusher. !d. at 894.

1

The grizzly is a flat metal plate with openings designed to separate smaller rock from
larger rock before the rocks are fed into the crusher. 18 FMSHRC at 893 n.2; see Exs. R-5, R-6,
and R-7.

1015

It was an accepted practice at Journagan to dislodge rocks with the crusher energized. ld
Some 8 months earlier, Ray had seen Catron attempt to dislodge rocks from the crusher with the
equipment energized in the presence of an MSHA inspector. !d.
Inspector Marler issued a citation charging Journagan with violating 30 C.F.R.

§ 56. 12016, which states:
Electrically powered equipment shall be deenergized before
mechanical work is done on such equipment. Power switches shall
be locked out or other measures taken which shall prevent the
equipment from being energized without the knowledge of the
individuals working on it. Suitable warning notices shall be posted
at the power switch and signed by the individuals who are to do the
work. Such Jocks or preventive devices shall be removed only by
the persons who installed them or by authorized personnel.

ld The inspector determined that the violation was significant and substantial (" S&S") under
section 104(a) ofthe Mine Act, 30 U.S .C . § 814(a).2 As a result ofthe violation, MSH A
proposed a penalty of$4,000 against Journagan and, pursuant to section 110(c) ofthe Act, 30
U.S. C. § 820(c),3 proposed a $1 ,500 penalty against Ray. !d.
Inspector Marler also believed that the practice of Catron standing over the crusher while
it was energized posed an imminent danger under section 107(a) ofthe Act, 30 U.S.C. § 817(a).
ld Ray disagreed with Marler that Catron' s actions were in violation ofthe standard or that they
posed a hazard to Catron . However, Ray immediately deenergized the crusher. ld

2

The S&S terminology is taken from section 104(d)(l) ofthe Act, 30 U.S.C.

§ 814( d)( I), which distinguishes as more serious any violation that "could significant ly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
3

Section 11 0(c) provides,
Whenever·a corporate operator violates a mandatory health
or safety standard or knowingly violates or fails or refuses to
comply with any order issued under this [Act] or any order
incorporated in a final decision issued under this [Act], except an
order incorporated in a decision issued under subsection (a) of this
section or section (105(c)], any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried out
such violation, failure, or refusal shall be subject to the same civil
penalties, fines, and imprisonment that may be imposed upon a
person under subsections (a) and (d) ofthis section.

1016

When Ray returned from deenergizing the crusher, he and ·inspector Marler climbed up
onto the catwalk over the crusher. I d. When they reached the top, they observed Catron and
Garoutte inside the crusher removing rocks from the jaws. ld at 894-95. About a foot above the
miners' heads was the crusher's hopper with more than a truckload of rock, estimated to weigh
between 25 and 30 tons. ld & n.3 . The rocks, which were loose and unconsolidated, ranged in
size from dust particles to rocks that were two feet in diameter.'' ld at 895. The rock in the
crusher hopper was resting on an incline that Ray estimated to be 35 degrees, while Marler
estimated it to be on an incline of 45 degrees. ld ; Tr. 108. There was no physical barrier
between the rocks and the crusher jaws where the men were working to prevent the rock from
faJJing on them, crushing or suffocating them. 18 FMSHRC at 895, 902. Although Ray did not
order Catron and Gourette into the crusher, he knew that they would climb into it. ld at 896. It
was a common practice at Journagan for employees to climb into the crusher to unjarri it while the
hopper just above them was filled with rock. !d.
Inspector Marler believed that the rocks posed an imminent danger to the miners because
of the likelihood that the rocks could slide into the crusher on top of them . Accordingly, Marler
issued a section 107(a) imminent danger order. ld at 895. Ray argued that the rock in the
hopper was stable, but he complied with the order by welding a piece of steel to the end of the
grizzly to prevent the rock from sliding into the crusher. ld Marler issued a citation charging a
violation of30 C.F.R. § 56.16002(a), which provides in pertinent part,
(a) Bins, hoppers, silos, tanks, and surge piles, where loose
unconsolidated materials are stored, handled or transferred shall
be( 1) Equipped with mechanical devices or other effective
means of handling materials so that during normal operations
·persons are not required to enter or work where they are exposed
to en~rapment by the caving or sliding of materials[) ....

!d. Marler determined that the violation was S&S and proposed a penalty of $4,500 against
Journagan. 18 FMSHRC at 896. A penalty of $1 ,500 was proposed against Ray pursuant to
section 1IO(c). ld
Journagan contested the citations and the matter went to hearing.s With regard to the
citation charging it with failing to deenergize equipment, Jourhagan argued that its employees

4

While the judge found that the maximum size of the rock was 2 inches, the transcript
pages to which his decision refers clearly state that the rocks were upwards to 2 feet in diameter.
Tr. 55-56. In addition, the pictures in the exhibit file show that most of the rock in the hopper
was much larger than 2 inches. See Exs. P-2 to P-6.

s The im'!linent danger orders were not contested.

1017

were not performing "mechanical work" within the meaning of the regulation when they were
attempting to unjam the rocks in the crusher. ld It further argued that the standard only applied
when miners were exposed to the hazard of electrical shock. ld. The judge rejected these
defenses, construing the term "mechanical work" broadly to reach the work of breaking loose the
jammed rocks in the crusher.6 ld The judge held that it was not relevant to the violation that
Catron was tied off with a safety belt, because the standard requires that electrically powered
equipment be deenergized regardless ofwhat other precautions are taken. ld at 897. Thus, the
judge concluded that Journagan violated the cited regulation. ld The judge vacated the
inspector's S&S designation, noting that the safety line would prevent Catron from falling more
than 1Y2 to 2 feet and that his feet could only brush the jaws of the crusher at that level. ld at
898. The judge further concluded that, in the brief time that the safety line was unhooked when
Catron was switching positions, it was unlikely that the equipment would be activated due to
misunderstandings. !d. The judge approved a penalty of $500 instead of the $4,000 penalty
proposed by MSHA. ld. at 899-901.
In addressing superintendent Ray's section 1 I 0(c) liability, the judge noted that the
provision imposes civil penalties on a corporate agent when he "knowingly authorized, ordered,
or carried out [a] violation." ld. at 899. The judge found that Ray clearly had reason to know
that employees would be working on the crusher without it being deenergized. !d. The judge
further found : "The procedure employed by miners on the day of the inspection and implicitly
condoned by superintendent Ray was Journagan's normal procedure. It was not a practice
initiated by Ray." ld (citation omitted). However, the judge concluded that Ray's conduct was
not "aggravated." Jd The judge further found that Ray had a reasonable good faith belief that
the miners were adequately protected by wearing a safety belt for all but a brief period when they
were working above the crusher. !d. Therefore, the judge vacated the penalty proposed under
section 11 0(c). ld ·
In addressing the second citation, the judge stated that the Secretary had to prove that
Catron and Garoutte.were exposed to entrapment by caving or sliding materials, and held that the
fact that the miners were working downhill from a hopper filled with 25 to 30 tons of rock did not
establish that the material might slide or cave in on top of them. ld at 90 I . The judge reasoned
that materials tend to move until they obtain a slope at which they will stop moving - referred to
as "the angle of repose. "7 Id. Th~ judge concluded that the Secretary "has not established that

6

The judge refused to follow the holding in Phelps Dodge C01p. v. FMSHRC, 681 F.2d
1189, 1192-93 (9th Cir. 1982), in which the court held, in a factual situation highly similar to the
one in the instant proceeding, that the lockout requirement of section 56.12016 (then numbered
30 C.F.R. § 55.12- 16) was limited to situations involving the danger of electrical shock, rather
than the unexpected activation of equipment. 18 FMSHRC at 897.
7

U.S. Dep't oflnterior, Dictionmy ofMining, Mineral, and Related Terms 19 (2d ed.
1997) defines "angle of repose" as follows: "The maximum slope at which a heap of any loose or

1018

the rocks in the hopper had not reached the angle of repose.''8 Jd· The judge further noted that
Inspector Marler did not measure the angle at which the rocks lay in the hopper, that he credited
Ray who testified that the rocks were at an angle of35 degrees, "a relatively flat slope,"9 and that
the photographs of the hopper that were entered as exhibits which indicated the rocks were at "a
fairly steep angle" were not considered because the Secretary did not establish that they
accurately depicted the slope. Jd at 901-02 & n.S.
The judge noted that the rocks in the hopper were about a foot above the crusher and that
Catron ' s and Garoutte' s actions in removing rocks from the crusher and throwing them back into
the hopper did not establish that any alterations in the slope of the rocks created a hazard. ld at
902. Finally, the judge noted that it was not Journagan' s practice to install a barrier between
rocks in a hopper and miners working to unjam the crusher, and it was unclear what industry
practice was in regard to barricading rocks. ld The judge dismissed the citation and vacated the
penalties against Journagan and Ray. ld at 902-03.
B.

The EAJA Proceeding 10

Ray' s counsel submitted an application for attorney' s fees of$12,657.50 and expenses of
$1 ,726.59 under EAJA. R. Application at 1. In support of the application, Ray stated that his net
worth was below that required for eligibility for an award under EAJA and that the Secretary's
position was not substantially justified. ld The application requested that Ray's counsel be
reimbursed above the $125 hourly rate specified in EAJ A. 11 ld at 2. The Secretary responded
that her position in the Mine Act litigation was substantially justified. S. Resp. to Application at
1. She noted in particular that her investigation disclosed that Ray was an agent of Journagan and
that he had knowingly authorized violation ofthe Mine Act. ld at 2. She further stated that the
fees and expenses were unreasonable and that many did not relate to the section 11 0(c)

fragmented solid material will stand without sliding or come to rest when poured or dumped in a
pile or on a slope."
8

The judge also noted that he credited Ray that the vibration of the feeder pan had
"flattened the angle" to one at whjch the rocks would not move further. 18 FMSHR.C at 902.
9

The judge also noted that a 35 degree slope was "one degree steeper than the slope
required by [the Occupational Safety and Health Administration] to protect workers in
excavations dug in the least stable type of soil." !d.
Judge Amchan presided over the Mine Act proceeding and issued the decision~
however, the EAJA application was assigned to Judge Fauver due to Judge Amchan's subsequent
departure from the agency.
10

11

See EAJA Amendments of 1996, Pub. Law No. 104-121 , § 301 , 110 Stat. 862 ( 1996)
(adjusting statutory cap on fees from $75 per hour to $125 per hour).

1019

proceeding. !d. at 1. Finally, the Secretary contended that fees could not exceed the statutory
limit of $75 per hour. !d.

In her brief to the judge, the Secretary attached affidavits from Marler and special
investigator Harold Yount, who had recommended that section 11 0(c) penalties be assessed
against Ray, in which they detailed their investigation of the citations. S. Resp. in Opp'n and
Mot. to Dismiss, Attachs. A & B. Ray responded with affidavits from Catron and Garoutte, who
asserted that their signed statements given to Marler and Yount during the investigation were
incomplete or inaccurate. R. Reply Mem., Exs. 1 & 2.
The judge denied in full Ray's EAJA application. He reviewed Commission case law
governing section 110(c) liability and concluded that "[t]he Secretary's investigation ofthe
alleged violation of[section] 56.12016 provided a reasonable basis in Jaw and fact for charging
Mike Ray with liability under [section] 110(c) ofthe Mine Act." 18 FMSHRC at 2040. The
judge based his conclusion on record evidence indicating that Ray ignored the requirements of the
standard because he thought the procedure followed by the miners was not hazardous. ld
Further, Ray had been cited previously for a lockout violation. !d. The judge noted that section
56.12016 is "plain and unambiguous" and requires deenergizing power on equipment when
performing mechanical work and does not provide for a substitute means of compliance. !d. at
2040-41 . The judge reasoned that Ray, as superintendent, was accountable for complying with
mandatory safety standards, and, in light of his prior violation, his conduct could have been found
to be aggravated . !d. at 2041 . He noted that a judge other than the one who heard the underlying
case might have viewed the evidence differently. ld.
The judge also concluded that MSHA' s investigation of the second alleged violation
provided a reasonable basis in fact and law for charging Ray with section llO(c) liability. Jd The
judge noted that miners were working in the crusher with rocks at chest level that ranged in size
from small to very large and which were held in place only by other rocks. /d. Inspector Marler
found an imminent danger because a small movement or a jolt by another rock could send the pile
ofrock down on the miners. /d Ray was aware ofthe practice and had observed it at other
times; Ray, however, disagreed with the inspector as to the hazard posed by the practice. Jd. The
judge reasoned that another trier of fact could have given greater weight to the inspector's
opinion of imminent danger and concluded that Ray' s conduct was aggravated. !d. "The fact that
the trial judge gave greater weightto Ray's safety opinion does not mean that the Secretary' s case
was not substantially justified by the inspector's observations and safety opinion." !d.

II.
Disposition
Ray's argument in chief is that substantial evidence does not support the judge's decision
that the Secretary' s position was substantially justified. R. Br. at 5-6. He contends that the
government's conduct that gave rise to the litigation as well as the government's litigation

1020

position must be judged under the substantial justification test. !d. at 3. Ray further asserts that
the legal standard for determining a section 11 0( c) violation is whether an operator's agent knew
that the actions placed employees at risk or that the actions were violative ofMSHA standards.
!d. at 5. Ray argues that his conduct did not constitute more than ordinary negligence and that
MSHA' s determination that it did was based on several mistaken key facts and did not provide
substantial justification for MSHA' s assessment ofsection 110(c) liability. R. Reply Br. at 8. Ray
contends that MSHA's notes of the investigation into Ray' s conduct establish that there was no
reasonable basis in law or" fact for a penalty under section 11 0(c). R. Br. at 8-13. Ray asserts that
the judge in the merits proceeding determined that Ray's belief in the safety of the activities cited
was reasonable. R. Reply Br. at 1. Ray argues that the judge' s reliance on Ray's prior violation
for failing to Jock out a conveyor was improper because the violation was dissimilar. R. Br. at 14.
In evaluating the Secretary's position, Ray contends that the judge failed to consider the entire
record and applied an incorrect legal standard under EAJA, violating Ray' s procedural due
process rights, when he stated that a different trier offact might have viewed the evidence
differently. ld at 14-15
The Secretary argues that her position was substantially justified with regard to the failure
to deenergize the crusher because inspector Marler reasonably believed that, if the crusher were
started, it posed several hazards to the miner straddling the crusher, including entangling his feet
in the crusher jaws, impaling him with the iron bar, and causing the rock in the hopper to slide
onto him . S. Br. at 10-11 . Similarly, when the miners were standing in the crusher, the loose
unconsolidated material was sloping down with no barrier to prevent the material from sliding on
them . !d. at 11. The Secretary notes that section 110(c) requires only that an individual know or
have reason to know of the existence of a violative condition, not that an individual knowingly
violated the law. !d. at 13-14 & n.7. In response to Ray's argument that he believed that the
work practices cited were not dangerous, the Secretary argues that the determinative issue is
whether such beliefs were reasonable. !d. at 16. The Secretary further argues that the evidence
on which Ray relies does not indicate that the Secretary was not substantially justified in asserting
that Ray' s belief was not reasonable. !d. Finally, the Secretary acknowledges that the judge in
the merits proceeding credited Ray over Inspector Marler that the work practices in question
were not dangerous and, therefore, dismissed the section 11 O(c) charges; however, the Secretary
concludes that adverse credibility resolutions do not establish that the Secretary' s position was
not substantially justified. ld at 17-18.
Under the EAJ A, a prevailing party shall be awarded attorney' s fees unless the position of
the United States is substantially justified. Cooper v. United States R.R. Retirement Bd, 24 F.3d
1414, 1416 (D.C. Cir. 1994). The agency bears the burden of establishing that its position was
substantially justified. Lundin v. Mecham, 980 F .2d 1450, 1459 (D.C. Cir. 1992). Substantially
justified means that the Secretary's position is such that it would have been "justified to a degree
that could satisfy a reasonable person" and has "a reasonable basis both in Jaw and fact." Pierce
v. Unde1wood, 487 U.S. 552, 565 (1988). "This necessarily requires the court to examine . . . the
Government's litigation position and the conduct that led to litigation. After doing so, the col,lrt
must then reach a judgment independent from that of the merits phase." FEC v. Rose, 806 F .2d

1021

1081, 1090 (D.C. Cir. 1986). When reviewing an administrative law judge's EAJA decision, the
Commission applies a substantial evidence test for factual issues, 12 and de novo review for legal
issues. Contractors Sand & Gravel, Inc., 20 FMSHRC __,slip op. at 7-8, No. EAJ 96-3 (Sept.
22, 1998).
A.

Nleged Violation of30 C.F.R. § 56.12016

We first address the question of whether the Secretary has demonstrated that her decision
to charge Ray under section ll O(c) for a violation of30 C.F.R. § 56.12016 was substantially
justified. For the reasons that follow, we conclude that the Secretary has not met this burden.
We therefore find that her position was not substantially justified.
To establish section II 0(c) liability in the case on the merits, the Secretary needed to
prove that Ray "knowingly authorized, ordered or carried out [a] violation." 30 U.S.C.
§ 820(c). 13 In determining that the Secretary's decision to charge Ray under 110(c) was
substantially justified, the judge concluded in part that "[s]ection 56.12016 is plain and
unambiguous. It requires deenergizing the power circuit on equipment when doing mechanical
work. It does not provide or imply that a substitute method may be used . ... " 18 FMSHRC at
2040. The judge's conclusion goes to the legal underpinnings of the Secretary's position. We do
not find, however, that the Secretary's legal position was as clearly supported as the judge
mainfained. To the contrary, as explained below, we find that the Secretary's case did not have a
reasonable basis in law in light of other pertinent regulations and case law, and, thus, find that her
position lacked substantial justification. Our conclusion that the Secretary was not substantially
justified is based solely on our de novo review of the legal underpinnings of the Secretary's
position. As was made clear in Pierce, to be substantially justified, the Secretary's position must
be reasonable in law as well as fact. 487 U.S. at 565 (stating that an agency position is

12

When reviewing an administrative Jaw judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pillsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
13

Section 1 I 0(c) of the Mine Act provides that, whenever a corporate operator violates a
mandatory health or safety standard, a director, officer; or agent of such corporate operator who
knowingly authorized, ordered, or carried out the violation shall be subject to an individual civil
penalty. 30 U.S.C. § 820(c). A knowing violation occurs when an individual "in a position to
protect employee safety and health fails to act on the basis of information that gives him
knowledge or reason to know of the existence of a violative condition." Kenny Richardson, 3
FMSHRC 8, I 6 (Jan. 198 1), aff'd on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied,
461 U.S. 928 (1983). Section 110(c) liability is predicated on aggravated conduct constituting
more than ordinary negligence. BethEnergy Mines, Inc. , 14 FMSHRC 1232, 1245 (Aug. 1992).

1022

substantially justified if it has a " reasonable basis both in law and fact") (emphasis added). In light
of our disposition that the Secretary's position Jacked_a reasonable basis in law, we do not reach
any of the factual bases of the Secretary's case against Ray ..
In reaching his conclusion on the legal merits of the Secretary's position, the judge
focused solely on the language of section 56. 12016. He made no reference to a second standard,
30 C.F.R. § 56.14 J05, which pertains to "[p)rocedures during repairs or maintenance." Unlike
section 56. 12016, section· 56.14105 does not contain a requirement that power switches be locked
out. Instead, it requires that:
Repairs or maintenance on machinery or equipment shall be
performed only after the power is off, and the machinery or
equipment blocked against hazardous motion . Machinery or
equipment motion or activation is permitted to the extent that
adjustments or testing cannot be performed without motion or
activation, provided that persons are effectively protected from
hazardous motion.
30 C.F.R . § 56. 14105. Prior to the events leading up to this case, the Secretary had charged
another operator under section 56.14105 for failure to protect a miner from hazardous motion
during testing of a rock crusher following its repair or maintenance. Walker Stone Co., 19
FMSHR.C 48, 49-50 (Jan. 1997). We agreed with the Secretary that the cited regulation applied
to the breakup and removal of rocks clogging a crusher, and held that the Secretary had proven
that the operator violated the standard. Jd at 51-53. In a recent decision, the Tenth Circuit
agreed with the interpretation of the regulation put forth by the Secretary and the Commission,
and affirmed the violation. Walker Stone Co. v. Secreta1y of Labor and FMSHRC, No. 97-9528,
J998 WL 646968 at *7, 9 (1Oth Cir. Sept. 22, 1998).
Although section 56.12016, standing alone, could be viewed as containing a plain and
unambiguous lockout requirement, section 56. 14105 and the case law interpreting that standard
creates uncertainty regarding the scope of that lockout requirement. This is particularly true
when, as occurred here, the machinery being repaired is activated for testing or adjustment,
thereby subjecting employees to the danger of "hazardous motion" rather than electrocution.
The legal basis of the Secretary' s case was thus not as well founded as the judge concluded.
Indeed, section 56.141 05 was clearly relevant to the situation at hand - the need to activate the
crusher to determine whether it was still clogged. Given the need to "jog" the crusher as part of
unclogging it, we fail to see how Ray could reasonably be expected to know that he was under an
obligation to lock out the crusher power switch, rather than simply ensuring that the miners were
protected from hazardous motion during the activation.

1023

The Commission's Walker Stone decision indicates that the Secretary herself has not
always chosen to apply the lockout requirement in situations analogous to this one.14 The
Secretary' s decision to cite the operator in Walker Stone under section 56. 14105 rather than
under the lockout requirement in section 56.12016 occurred in June 1993, almost two years
before the enforcement action at issue here. See 19 FMSHRC at 49-50. In light ofthis fact, we
find that it was unreasonable for the Secretary to evaluate Ray's culpability under section 11 0(c)
based solely on the lockout requirement of section 56.12016, ignoring the fact that section
56.14105 does not contai·n a lockout requirement. ts
We also find problematic that the Secretary' s decision to prosecute Ray under section
11 0(c) relied on a legal position in the underlying proceeding directly at odds with the decision of
the Ninth Circuit in Phelps Dodge Co1p. v. FMSHRC, 681 F .2d 1189 (9th Cir. 1982). Phelps
Dodge involved facts similar to those in the underlying case. The Secretary cited the operator for
failing to deenergize and lock out a panfeeder on which employees were standing and attempting
to dislodge rocks and stones that had clogged an adjacent drop chute. ld at 1191 . Pointing out
that the lockout regulation, then numbered 30 C.F.R. § 55.12-16 (1979), was "sandwiched
between regulations whose purpose is manifestly to prevent the accidental electrocution of mine
workers," the court held that principles of fair warning required the scope of the regulation be
limited to situations involving electrical shock. !d. at 1 192-93. In reaching its conclusion, the
court relied on the existence of a separate regulation containing language identical to the current
requirements ofsection 56.14105. !d. at 1192 (citing 30 C.F.R. § 55.14-29 (1979), which
contained language identical to the present section 56.141 05). The court emphasized that, when
the goal is to protect against the danger of machinery motion, the relevant regulation requires that
the machinery be turned off and "blocked against motion," not "deenergized." I d. at 1193 .
In the decision on the merits here, the judge rejected Journagan's reliance on Phelps
Dodge for the proposition that " section 56.120 I 6 cannot be cited in situations where the only
hazard is danger ofbeing injured by moving machinery." 18 FMSHRC at 896. Instead, the judge
stated that he "decline[d) to follow Phelps Dodge," thus implicitly acknowledging that the case
was at least relevant. . Id. at 897. He cited the dissenting opinion in Phelps Dodge as "far more
compelling," including the dissent's view of the lockout requirement as "clear and unambiguous."
/d. (citing 681 F .2d at 1193 ). As discussed above, however, in the context of evaluating the
reasonableness ofthe Secretary' s position, section 56.12016 cannot be read in isolation from

14

Walker Stone involved an employee who was killed while attempting to remove rocks
from inside the crusher after the equipment operator had not been alerted to the employee' s
presence prior to restarting the crusher. 19 FMSHRC at 49.
•s Because our purpose in this EAJA proceeding is limited to a determination of whether
the Secretary was substantially justified in her position, we need not reach the question of whether
the Secretary should have applied section 56.14105. Consequently, our dissenting colleague' s
assertion (slip op. at 20 & n.4) that we have adopted this position is incorrect.

1024

section 56.14105: as the judge in the EAJA proceeding did here, following the lead of the Phelps
Dodge dissent and the judge in the merits proceeding.
In this EAJA proceeding, we are not presented with the issue of whether the Phelps
Dodge court correctly limited application of the lockout requirement to situations involving the
potential for electrical shock. Nor do we express any view regarding the propriety of the judge's
finding that Joumagan violated section 56.12016. Instead, we must determine whether the
Secretary was substantially justified in charging Ray with a section 11 0(c) violation of that
requirement. The reasonableness of the Secretary's decision to charge Ray with a knowing
violation must be viewed in the context of Phelps Dodge, a decision of a Court of Appeals
directly on point and directly at odds with how the Secretary interprets the underlying
regulation.16
We recognize that Phelps Dodge was not binding precedent in the Circuit in which the
underlying proceeding a:ose, and we do not mean to suggest that the Secretary should refrain
from attempting to persuade other Courts of Appeals that Phelps Dodge was wrongly decided .
But at issue in the underlying proceeding was a charge of a section 1 I 0(c) violation of section
56.12016. Whether correctly decided or not, the Phelps Dodge opinion is one the Secretary
needed to contend with in deciding to charge Ray under section 11 0(c). There is no indication
that this court decision was factored into the Secretary's analysis; indeed, in her posthearing brlef,
the Secretary chose to ignore the case altogether. SeeS. Posthearing Br. at 5. We fail to see how
it was reasonable to bring the II 0(c) charge without appearing to even acknowledge the contrary
authority of Phelps Dodge, in which no less than the Ninth Circuit ruled that circumstances like
these are not covered by section 56.12016.17
The Walker Stone and Phelps Dodge cases illustrate why Ray could have reasonably
concluded that a lockout requirement did not apply to the activity observed by the inspector, and
that his obligation was simply to ensure that the crusher was turned off and the miners were
"effectively protected-from hazardous motion" during testing. See 30 C.F.R. § 56.14105.
Indeed, according to th·e majority in Phelps Dodge, such a conclusion is the most reasonable one
to be drawn from the regulations. Given all these considerations, we find that it was not
reasonable to charge Ray under section 11O(c). Accordingly, we conclude that the Secretary's

16

Indeed, when viewed in the context of Phelps Dodge, the Secretary was incorrect when
she argued that "(t]he failure to deenergize electrically powered equipment and to lock out power
before any mechanical work is done on the equipment has been consistently held to constitute a
violation of mandatory safety standard 56.12016." S. Posthearing Br. at 5.
17

Contrary to the claim of our dissenting colleague, we do not rely on the Ninth Circuit's
Phelps Dodge decision in an attempt to relitigate the underlying merits determination (slip op. at
20), but rather only to show that the Secretary's effort to impose section 110(c) liability on Ray
for a violation of section 56.12016 did not have a reasonable basis in law, and therefore was not
substantially justified.

1025

position was not substantially justified, and remand the case for a determination of the amount of
fees and costs to be awarded.
We note that at the· present time different proceedings have resulted in rulings that the
work of unclogging the crusher falls under two separate regulations. Compare Phelps Dodge,
68 I F.2d at 1192-93, with, e.g., Ozark-Mahoning Co., 11 FMSHRC 859, 868 (May 1989) (ALJ),
aff'd 12 FMSHRC 376 (Mar. 1990) (upholding a violation of section 56.12016 under
circumstances similar to those here, but without any citation by the judge or Commission to
Phelps Dodge). But only one regulation has a lockout requirement. There is an urgent need for
the Secretary to clarify what precautions are necessary when employees unclog a crusher. In
particular, she should clarify whether and to what extent the lockout procedure must remain in
place when miners activate a crusher to determine if further work is necessary. The Secretary
needs to address whether miners must go through the lockout procedure every time they jog a
crusher and whether such a requirement is even feasible. Such a reevaluation is necessary to
avoid c<;>nfusion on this issue and to ensure miner safety in this critical area.
B.

Alleged Violation of 30 C.F.R. § 56.16002(a)

The judge in the merits proceeding ruled that the Secretary failed to prove a violation of
the second regulation, section 56.16002(a). 18 18 FMSHRC at .901. Inspector Marler had issued
this citation after viewing the miners working inside the crusher jaws with no barrier between
them and 25 tons of rock that rested on an incline in the hopper chute. !d. at 895, 901. The
judge discredited Inspector Marler's testimony that the rocks were at an incline of 45 degrees, and
instead credited Ray's testimony that the rock lay on an incline of 3 5 degrees, which he noted is
"a relatively flat slope." ]d. at 901-02. The judge noted that Marler had not measured the angle
of the incline; relied on the Secretary's failure to show that the rock had not reached an "angle of
repose;" refused to rely on photographs in evidence because the Secretary had not shown that
they were accurat.e; noted that it had not been shown that the action of Catron and Garoutte in
throwing additional material on the pile created a hazard; and noted that it was not Journagan's
practice to install a barrier between the pile and men in the crusher. !d. & n.5.
The judge in the EAJA proceeding concluded that the Secretary's investigation
nonetheless provided a reasonable basis for charging Ray with section II 0(c) liability. 18
FMSHRC at 204 I. Substantial evidence supports this conclusion. First, the Secretary's position
on the underlying violation of the standard was reasonable. At trial, the record evidence
presented a close case that turned, in large measure, on the judge discrediting Marler's testimony
on the angle of incline because he had not measured it. However, Ray also neglected to measure
the angle of incline of the rock or the chute. Instead, he estimated the slope of the rock pile at the

18

Consequently, the corresponding section 11 0(c) charge against Ray was also vacated.
18 FMSHRC at.903.

1026

hearing by drawing it on paper and then measuring it. 19 Tr. 281 . Thus, it would have been
difficult for the Secretary to have anticipated that the judge would discredit Marler. Moreover,
we believe that the photographs, which show loose rock resting on an inclined metal chute,
support the reasonableness of the Secretary's position, notwithstanding the judge's finding that
the Secretary failed to show that the pictures were an accurate depiction of the slope of the rocks.
18 FMSHR.C at 902 n.5. Compare Tr. 108, with Tr. 228-31. Further, Catron and Garoutte were
placing more rock on the pile which could have caused the rocks to begin sliding down into the
crusher on top ofthem. Thus, even ifthe rock pile had reached an angle of repose before they
entered the crusher, this was not determinative of the absence of a violation.20 See Cyprus
Tonopah Mining Corp. , 15 FMSHR.C 367, 371 (Mar. 1993) ("While the judge noted ... that the
west wall had reached an angle of repose, and was stable ... , he credited testimony of the
Secretary's witnesses asserting that material on the west wall had a potential to move .·. .. "). As
the judge in the EAJA proceeding held, "(t]he fact that the trial judge gave greater weight to
Ray's safety opinion does not mean that the Secretary's case was not substantially justified by the
inspector's observations and safety opinion." 18 FMSHR.C at 2041. See Europlasl, Ltd. v.
NLRB, 33 F.3d 16, 17-18 (7th Cir. 1994) (noting that NLRB had no way of foreseeing that judge
would make credibility resolutions in favor of respondent's witnesses and against NLRB 's
witnesses).
Second, in terms ofRay' s section 1lO(c) liability, the Secretary's investigation clearly
indicated that Ray was aware ofthe presence of Catron and Garoutte in the crusher. Special
Investigator Harold Yount stated in an affidavit that, based upon statements of Ray and other
witnesses, he concluded that "James Ray knew that two employees were working down in the
crusher removing rocks by hand while there was approximately a truck load of rock in the feeder
and chute overhead." S. Br., Ex. B ~ lO(b); see id. ~ 9(a). In his written statement, Catron stated
that "Ray was aware that we were down in the crusher with rock in the hopper and chute." R.
Br., Ex. 3 at 3. This is corroborated by Ray's testimony at the hearing that, from his position by
the generator trailer, he saw Catron and Garoutte climb out of the crusher and walk up the pile of

19

Even though at the hearing, a scale drawing of the crusher was presented into evidence,
Ray made no effort to draw to scale the slope of the rock pile. Tr. 250; Exs. R-5, R-6. Ray also
testified at the hearing that the rock, as it was dumped from the trucks, was never at an angle of
more than 45 degrees. Tr. 273, 279. The basis for that statement is not evident from the record.
2

° Crusher operator Keith Garoutte testified that, in joining Catron in the crusher jaws, he

came down from the crusher controls walking over the rock pile in the hopper, taking care to only
step on the big rocks in order not to disturb the smaller rocks and loose materiaL Tr. 353-55 .

1027

rocks to the control house, and then walk back down to the crusher and remove more rocks.21
Tr. 270-271.
Accordingly, it was reasonable for the Secretary to conclude that Ray engaged in
aggravated conduct by allowing miners to go into the crusher, subjecting them to an imminent
danger. See 18 FMSHRC at 2041 ?2 In these circumstances, the Secretary's position was
substantially justified.

21

As noted above, Ray relies on the prelitigation statements to support his position that
he did not believe the actions cited by MSHA were violative or dangerous, neither of which is
determinative of substantive justification in this proceeding. R. Br. in Support of Application, Ex.
2 at 3. Cf Inter-Neighborhood Hous. Cmp. v. NLRB, 124 F.3d 115, 121 (2d Cir. 1997) (holding
that where there is evidence that raises a fundamental question as to the allegations in a charge,
NLRB has the responsibility to conduct a reasonable investigation to resolve any credibility issues
before bringing a complaint).
22

We reject Ray's contention that the judge in the EAJA proceeding did not apply the
correct legal test in evaluating the Secretary' s position when he stated in his discussion of the first
violation that another judge might have viewed the evidence differently. R. Br. at 14-15. The
judge also noted in his discussion of the second violation that a trier of facts might have given
weight to the inspector' s testimony and found Ray's conduct aggravated. 18 FMSHRC at 2041 .
However, we do not believe that he applied the wrong legal standard. He cited Pierce and
correctly articulated its legal standard for proving substantial justification. !d. at 2039. We
interpret his comments acknowledging that "(d]ifferent triers of fact may view conflicting
evidence differently" and his finding that this was the case in the underlying proceeding here, as
support for his ultimate conclusion that he Secretary's position was reasonable in fact. ld. We
note, however, that while the potential views of another trier of fact may be instructive in regards
to a finding of reasonableness, they are not determinative in an EAJA case, where the Pierce
standards of reasonableness must always be applied.

1028

Ill.
Conclusion
For the foregoing reasons, we reverse the judge's EAJA determination denying Ray's
application for .fees and expenses on the first citation but affirm the judge's determination as to the
second. We remand this proceeding to the Chief Administrative Judge for assignment to a judge
in order to allocate from the total amount of fees and expenses originally applied for those
attributable to Ray's defense of section 11 0(c) liability arising from the first citation.

ames C. Riley, Commissioner

Robert H. Beatty, Jr. , Commissione

1029

Commissioner Marks, dissenting in part:
Although I join in my colleagues' affirmance of the judge's EAJA determination denying
Ray's application for fees and expenses arising from the second section 11 0(c) citation based on a
violation of30 C.F.R. § 56.16002, I would also affirm the judge' s denial ofRay's EAJA
application with respect to the first citation, that alleged a section II 0(c) violation against Ray for
the violation of30 C.F .R. § 56.12016. Therefore, I dissent as to the first citation.
After reviewing the Secretary's pleadings and other record material with respect to the
first citation, it is apparent to me that the Secretary's position was substantially justified so that
awarding fees under EAJA to Mr. Ray would not be appropriate. Substantial justification for an
agency's position exists when '"there is a reasonable basis in truth for the facts alleged in the
pleadings; .. . there exists a reasonable basis in law for the theory it propounds; and ... the facts
alleged will reasonably support the legal theory advanced."' Smith v. N. T.S.B., 992 F.2d 849, 852
(8th Cir. 1993) (citations omitted). In Pierce v. Unde1wood, 487 U.S. 552, 566 n.2 (1988), the
Supreme Court explained the EAJA substantial justification test as follows: "a position can be
justified even though it is not correct, and we believe it can be substantially (i.e., for the most
part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in
law and fact." Under an EAJA analysis, "[t]he government's failure to prevail does not raise a
presumption that its position was not substantially justified." Kali v. Bowen, 854 F.2d 329, 332
(9th Cir. 1988).
To establish section l10(c) liability, the Secretary needed to prove that Ray "knowingly
authorized, ordered, or carried out" the violation ofsection 56.12016. 30 U.S .C.§ 820(c).
Although the Secretary did not ultimately prevail on this violation, it is beyond a doubt that the
Secretary' s position had a reasonable basis in law and fact, particulary in light ofthe information
revealed in her special investigation that culminated in the issuance ofthe section I 10(c) penalties.
As part of th~t investigation, Ray submitted an affidavit stating that "I had instructed the
employees that they should follow the lockout procedures anytime they were going to be working
on something where they would be in danger~~ the equipment were to he started inadvertently."
(emphasis added). R. Br. in Support of Application, Ex. 2 at3 . This statement shows that Ray
had clearly communicated instructions to the employees that he condoned actions that were in
violation ofthe standard, which requires deenergization whenever mechanical work is performed.
Moreover, in his affidavit attached to the Secretary' s brief to the judge, Inspector Marler
stated that Ray knew that miners were working in the crusher without locking it out (S. Resp. in
Opp 'n and Mot. to Dismiss, Attach. A at 3) and that several miners had informed him that "Ray
had observed them on several occasions working on the crusher, and down in the crusher, and
said nothing to indicate that it was not appropriate." ld. During his testimony at trial, Marler
stated that when he arrived at the crusher, Ray was at the rear of the truck observing the
employees work (Tr. 96) and that the crusher was not locked out. Tr. 36.

1030

The special investigator also submitted an affidavit, asserting that based upon the
statements of Ray and other witnesses, he concluded that Ray knew that an employee was
working near the opening to the crusher without it being locked out, and that Ray had instructed
workers in lock out procedures. S. Resp. in Opp'n and Mot. to Dismiss, Attach. Bat 2-4. These
statements also indicated to the special investigator that Ray knew that an employee was in the
crusher while a large amount ofrock remained in the feeder and chute overhead. !d. at 3. The
judge also noted that Ray had been cited earlier for a similar violation. 18 FMSHR.C at 2040. In
light of these facts, as did the judge in the EAJ A proceeding, I have no difficulty concluding that
the Secretary's investigation provided a reasonable basis for charging Ray with liability under
section 11 0(c).
·
Much ofRay's argument that the Secretary's investigation did not provide a basis for
section 11 0(c) liability is premised on his incorrect interpretation of section 11 0( c). Ray argues
that there is no basis for section 11 O(c) liability if Ray did not know if the cited action was a
violation of the standard or was hazardous. R. Br. at 5. However, Commission case law does not
support that interpretation of section 11 0(c). E.g., Deshetty, employed hy Island Creek Coal Co. ,
16 FMSHR.C 1046, 1050-52 (May 1994); BethEnergyMines, Inc. , 14 FMSHR.C 1232, 1245
(Aug. 1992). The proper legal inquiry for determining liability under section 11 O(c) is whether a
corporate agent knew or had reason to know of a violative condition. Kenny Richardson, 3
FMSHRC 8, 16 (Jan. 1981 ), aff'd on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied,
461 U.S . 928 (1983). Accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358,
362-64 (D.C. Cir. 1997). To establish section 11 O(c) liability, the Secretary must prove only that
an individual knowingly acted, not that the individual knowingly violated the law. Warren Steen
Constr., Inc., 14 FMSHR.C 1125, 1141 (July 1992) (citing United States v. !nt 'l Minerals &
Chem. C01p., 402 U.S . 558, 563 (1971)); Deshetty, 16 FMSHR.C at 1051. An individual acts
knowingly where he is "in a position to protect employee safety and health and fails to act on the
basis of information that gives him knowledge or reason to know of the existence of a violative
condition." Ke1iny ~ichardson, 3 FMSHRC at 16. Thus, under established Commission
precedent, the SecretC~:ry was entitled to bring an action against Mr. Ray because she had
information that Ray knew or had reason to know that miners worked on the crusher without
using proper lock out procedures. Although the judge ultimately "gave greater weight to Ray's
safety opinion," the fact that Secretary did not prevail did not mean that the Secretary's case was
not substantially justified, just as the judge properly concluded. 18 FMSHRC at 2041 .
The majority finds that the Secretary's decision to bring a section 110(c) action was
unreasonable based, for the most part, on the fact that another regulation, which does not require
lock out procedures, could also have applied. In doing so, the majority impermissibly revisits the
underlying merits determination. See Cooper v. United States R.R. Retirement Bd., 24 F.3d 1414,
1416 (D.C. Cir. 1994) ("[T)he inquiry into reasonableness for EAJA purposes may not be
collapsed into [the) antecedent evaluation of the merits, for EAJA sets forth a 'distinct legal
standard."') (citation omitted). In the merits proceeding, the judge concluded that Joumagan,
Ray's employer, violated section 56.12016, when Catron stood over the crusher with an iron bar
trying to dislodge rock jammed in the jaws of the crusher while the equipment was energized.

1031

18 FMSHR.C at 896-97. The judge ruled that the section 56.12016 unambiguously applied to the
instant case. !d. at 897. This holding was not appealed and has become the law of the case.
The majority, in overturning the judge's determination that the Secretary was substantially
justified in bringing a section 1 10(c) action against Ray based on the section 56.12016 violation,
has impermissibly exceeded the scope of review that they assert they are following.1 The majority
has not merely addressed whether the Secretary was for the most part correct in her litigation
position; the majority has .gone so far as to sub silentio overrule the judge' s merits determination
that the operator violated the cited standard. I find the majority' s conclusion that the Secretary
was not substantially justified to be even the more remarkable because in Ozark-Mahoning Co.,
12 FMSHRC 3 76 (Mar. 1990), the Commission concluded that the cited regulation applied under
similar facts. There, the Commission ruled that " electrically powered equipment be first
deenergized before mechanical work is done on such equipment." 12 FMSHR.C at 379. OzarkMahoning is binding Commission precedent. Contractors, 20 FMSHR.C _, slip op. at 13
(unreviewed Commission decisions serve as legal precedent). Accordingly, the Secretary was
justified in relying on it. 2
In reaching its conclusion that the Secretary was not substantially justified, the majority
also faults the Secretary for taking a position directly at odds with Phelps Dodge Cmp. v.
FMSHRC, 681 F.2d 1189 (9th Cir. 1982). However, the judge in the merits determination
addressed Phelps Dodge and declined to follow it, noting that the Commission had never acceded
to the decision. 18 FMSHR.C at 897. The judge rejected the operator's argument, which was
based on Phelps Dodge, that section 56.12016 could not be cited in situations where the only
hazard is danger of being injured by moving machinery. !d. The judge found more compelling
the dissenting opinion of Circuit Judge Boochever in Phelps Dodge, which found that the plain
language ofthe standard was clear and unambiguous. !d. (citing 681 F.2d at 1193). Like Judge

1

When reviewing a,judge's factual determinations in an EAJA case, the Commission
applies the substantial evidence standard of review. Contractors Sand & Gravel, Inc., 20
FMSHR.C--> slip op. at 7-8 (Sept. 22, 1998). "Substantial evidence" means "'such relevant
evidence as a reasonable mind might accept as adequate to support [the judge's] conclusion."'
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In reviewing the judge' s legal determination of
substantial justification, the Commission applies the de novo standard of review. Contractors, 20
FMSHRC _,slip op. at 8.
2

The majority rests its entire decision to reverse the judge on its de novo review authority
over legal questions. In this case, de novo review goes only to the judge' s substantial justification
determination that the Secretary's legal theory was reasonable. The maj ority may not substitute
its judgment for the underlying merits. As the judge found that the regulation plainly applied to
the facts in the merits proceeding, I do not see how the majority can now in the EAJA proceeding
state that the Secretary was not at least reasonable in relying on that regulation to charge Mr. Ray
under section llO(c).

1032

Boochever, the judge in the merits proceeding saw no reason to qualify the standard's application
on account of the title of the subpart in which the regulation was·placed. The judge also ruled
that "the Commission should defer to an agency interpretation of the standard which appears to
better effectuate the purposes of the Act, than one limiting its reach to situations in which there is
a danger of electrical shock." ld. Thus, not only did the judge determine that the Secretary' s
position was substantially justified, the judge ruled particularly in the.Secretary' s favor with
respect to Phelps Dodge. The majority's reliance on Phelps Dodge (slip op. at 11-12) is nothing
more than an improper attempt to relitigate the merits determination. 3
I find particularly troubling the majority's attempts to revisit the judge's merits
determination on the ground that a standard that provides less protection to miners and does not
require lock out when mechanical work is being pe1jormed could also have applied . By
effectively overruling the judge's determination that section 56.12016 applied on these facts, the
majority' s holding today will inevitably lead to less protection for miners. In Walker Stone Co.,
19 FMSHR.C 48 (Jan. 1997), on which the majority relies for the proposition that the Secretary
should have cited this operator under 30 C.F.R. § 56. 14105, a miner was killed in a crusher. 4
Although the cited regulation was not at issue there, perhaps a fatality would have been avoided if
the operator had taken the time to implement lock out procedures in that case.
The majority's attempt to second guess the Secretary's choice ofthe citing regulation is
not only inappropriate because of the confines of the substantial justification test, but is contrary
to Commission case law. As was recognized in Fluor Daniel, Inc., 18 FMSHR.C 1143 (July
1996), "[a) hazardous condition may violate more than one standard and the fact that MSHA
determines not to issue citations under all applicable sections does not render invalid the citations
it does issue." ld. at 1146 (citing Cyprus Tonopah Mining C01p., 15 FMSHR.C 367, 378 (Mar.
1993)). Applying that reasoning here, the fact that the Secretary could have prosecuted under
another regulation is simply no basis for discounting the Secretary' s choice to issue a citation
under the regulation at issue, which the judge found plainly applied to the facts of this case.

3

The majority finds the Secretary's legal position "problematic" because of Phelps
Dodge. Slip op. at 11 . 1-Iowever, the proper legal test on review is not whether the Secretary's
case had some problemg. but whether the Secretary was substantially justified under Pierce, 487
U.S . at 565.
4

On appeal, the Tenth Circuit in Walker Stone Co. v. Secretmy of Labor and FMSHRC,
No. 97-9528, 1998 WL 646968, at *5 (1Oth Cir. Sept. 22, 1998), recently held that the removal
ofrocks from a crusher was not plainly and unambiguously covered by section 56.14105,
although that was a permissible interpretation of the standard. (The court of appeals disagreed
with the Commission that section 56.14105, on its face, applied to the removal of rocks from a
crusher. !d.). This finding of ambiguity by the Tenth Circuit undercuts the majority' s assertion
that the Secretary was not substantially justified because she should have applied section
56.14105 to the facts of this case.

1033

Because 1 have concluded that the Secretary's decision to pursue Ray under section
110(c) for knowingly authorizing, ordering, or carrying out the violation of section 56.12016 was
substantially justified, 1 would affirm the judge with respect to the citation at issue.

Distribution

Eric D. Martin, Esq.
Peper, Martin, Jensen, Maichel & Hetlage
720 Olive Street, 24'h Floor
St. Louis, MO 63101
W. Christian Schumann, Esq.
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1034

ADMINISTRATIVE LAW JUDGE DECISIONS

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

SEP

9 1998.

NEWMONT GOLD COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEST 98-58-RM
Citation No. 7951941; 12/9/97

v.

Mine ID 26-02271
Carlin East

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

Appearances: Mark N. Savit, Esq., Rodney A. Grandon, Esq., Patton Boggs, L.L.P.,
Washington, D.C.,
for Contestant;
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of Labor,
·
Arlington, Virginia,
for Respondent.
Before:

Judge Cetti

This case ·is before me upon a petition for assessment of civil penalties under sections
I 05(d) and 11 0 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 80 I et seq. the
"Mine Act." The Secretary of Labor, on behalf of the Mine Safety and Health Administration,
(MSHA), charges Newmont Gold Co. with the violation of the mandatory safety standard
30 C.F.R. § 57.3360. This safety standard provides, in pertinent part, that when "ground support
is necessary, the support system shall be designed, installed, and maintained to control the
ground in places where persons work or travel in performing their assigned tasks." The
regulation in entirety reads as follows:
Ground support shall be used where ground conditions, or mining
experience in similar ground conditions in the mine, indicate that it
is necessary. When ground support is necessary, the support
system shall be designed, installed, and maintained to control the
ground in places where persons work or travel in performing their
. assigned tasks. Damaged, loosened, or dislodged timber use for

1035

ground support which creates a hazard to persons shall be repaired
or replaced prior to any work or travel in the affected area.
Newmont Gold Company (Newmont) denies any violation of~he cited safety standard.

STIPULATIONS
At the hearing; the parties entered into the record stipulations as follows:
1. The Carlin East Mine is a gold mine located near Carlin, Nevada, and is under the
jurisdiction of the Mine.Safety and Health Act.
2. There was a ground fall in the 5655 roadheader stope area on Dec~mber 6, 1997.
3. The only issues are (1) Did Newmont violate 30 C.F.R. § 57.3360? and (2) If there
was a violation, was it caused by the Operator's unwarrantable failure to comply?
4. Mr. Terry Hoch, Mr. Michael Evanto, Mr. David West and Mr. John Abel are able to
testify in this proceeding as expert witnesses; "however, their credibility as experts will be
subject to attack on cross-examination."
5. The five deposition transcripts are received into evidence as joint exhibits 3, 4, 5, 6
and 7 in lieu of the testimony of the following five individuals:
Scott Robertson - Joint Exhibit 3
- Joint Exhibit 4
Craig Kerby
- Joint Exhibit 5
Larry Johns
Dennis Stone - Joint Exhibit 6
Sam Lamb
- Joint Exhibit 7
The Ground Fall
On December 6, 1997 ,.at about 2:30 p.m. at the Ca!"lin East mine there was a large
ground fall in the 5655 roadheader stope and stope access drift. There were no injuries nor
equipment damage. The fall measured 20 feet wide, 22 feet high, 60 feet long and was estimated
to be about 2,000 tons. The fall of ground was above the anchorage zone of the 12-foot rebar
resin bolts and 8-foot split set stabilizers which along with metal chain link fencing were used in
the roof support system in the area where ground fell.
On December 12, 1997, Inspector Bob Caple~ issued the citation in question charging
mine management with unwarrantable failure to implement effective ground support measures to
properly control ground conditions "associated with the current mining practices." The citation

1036

refers to the undisputed fact that there had been previous falls of ground at the mine which had
been cited. The citation also refers to the fact that the company accident report dated December 6, 1997, the date of the ground fall, "indicates that the 21 to 23 foot-wide stope access drift as
a "probable factor related to the most recent fall." The company accident report referred to in the
citation was written by Mr. Robertson, one of the mine's underground supervisors. ·
Mr. Robertson,.called by MSHA, as its witness testified that Inspector Caples
misunderstood his report. Mr. Robertson testified that in his report he was not referring to the
width of the stope access drift. He was not referring to the roof span in the access drift between
the top of the backfill on one side and the top of the backfill on the other side. He was referring
to the overall span of the stope where the coal had been mined out and the empty area backfilled
with rock and concrete. Mr. Robertson freely admitted that he was not an expert in mine design.
I credit Mr. Roberton's testimony that he was not an expert on mine design.
With respect to the prior ground falls, Newmont presented credible evidence that the
previous ground fall at the mine occurred in ground conditions substantially different from those
encountered in the 5655 roadheader stope and that Newmont had appropriately responded to each
previous fall by evaluating, modifying and improving the mine's ground support.
Newmont first took over the mining operations at the Carlin East mine in May 1995.
Prior to that time, the mine was developed first by a company called Small Mine Development.
That company opened the ground and installed ground support that consisted primarily of 6-foot
split set rock bolts. Newmont upon taking over the mine in 1995, brought in a highly qualified
mining engineer, John Abel, as a consultant and Newmont continuously implemented and
improved the mines ground support system based on Dr. Abel's comprehensive
recommendations.
MSHA, based upon the opinion of its well-qualified expert witness Mr. Terry Hoch,
contends that the primary cause of the ground fall was that the 5655 roadheader access drift was
too wide for the ground support system, designed, installed and maintained in that area.
Respondents, based upon the opinions of its highly qualified expert witnesses, Dr. John
Abel and Mr. David West, contend that the primary cause of the ground fall was a variable and
unpredictable ground fault called the "Leaky Fault" and not on the width of the 5655 roadheader
access drift.
ESTABLISHED LAW
Newmont is correct in its assertion that the fact that there has been a ground fall does not
mean there has been any violation of regulatory requirements. Underground mining is an
inherently dangerous activity. Conditions sometimes are such that despite the operator's best
efforts, roofs fall. It has been stated many times that "even a good roof can fall without

1037

warning." Consolidated Coal Co., 6 FMSHRC 34, 37 (Jan. "1984). When roofs fall, tragedies
can occur. Fortunately, in this case, no one was injured and no equipment damaged.
Liability for an alleged violation of a broad safety standard, such as that involved in this
case, is resolved by reference to an objective standard of what action a reasonably prudent
person, familiar with the facts and the protective purpose of the standard would have taken to
provide the protecti~n intended by the standard. "Specifically, the adequacy of particular roof
support or other control must be measured against the test of whether the support or control is
what a reasonably prudent person, familiar with the mining industry and protective purpose of
the standard, would have provided in order to meet the protection intended by the standard.''
Canon Coal Co., 9 FMSHRC 667 (1987).
"The Mine Act imposes on the Secretary the burden of proving the violation the Secretary
alleges by a preponderance of the evidence." Garden Creek Pocahontas Co., 11 FMSHRC 2148,
2152-53 ( 1989) (citations omitted). Thus, with respect to this violation, MSHA must present
evidence that convinces or at least persuades this Court that the fact that a violation occurred is
more likely true than not true. See u., Hopkins v. Price Waterhouse, 737 F. Supp. 1202
(D.D.C. 1990), affd, 920 F.2d 967 (D.C. Cir. 1990). Accord Concrete Pipe and Products of
California. Inc. v. Construction Laborers Pension Trust for Southern California, 124 L.Ed.2d
539, 563 (1993) (citation omitted). To prove by a preponderance means that the evidence
supporting the violation must be "more convincing than the evidence which is offered in
opposition to it." St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763, 769 (Fed. Cir.
1993 ). Where the evidence is equally balanced "or if it cannot be said upon which ~ide it weighs
more heavily, plaintiff has not met his or her burden of proof." Smith v. United States, 557 F.
Supp. 42, 52.
MSHA Inspector Joel Tankersley's October Inspection
MSHA Inspector Joel Tankersley conducted a regular complete inspection of the Carlin
East Mine in October 1997. He inspected the 5655 roadheader stope and testified he was in the
5655 roadheader stope area "quite awhile because we had a ventilation issue in that area."
Inspector Tankersley inspected the drift spans in the 5655 roadheader area and concluded that the
spans that he observed were probably 20 feet in width, measured from the top of the backfill on
the left side of the access drift to the top of the backfill on the right side of the access drift. At
the time of his inspection in October 1997 Inspector Tankersley concluded that the ground
support in the 5655 roadheader stope area was in compliance with applicable MSHA regulations.
Inspector Tankersley's testimony was credible.
On review of the record, I find the evidence presented by the government that the width
of the drift was excessive is primarily conjectural. It consisted largely of inference from
defective and presumptive evidence. It was not persuasive.

1038

After the ground fault, Dr. Abel analyzed the available data and concluded that the
mining plan and ground support he had recommended was more than adequate to support the
span of the 5655 roadheader access drift. His analysis of the data demonstrates that a variable
unpredictable geological feature called the "Leaky Fault" caused the ground fall. Based on Dr.
Abel's testimony and report., I find this subtle, variable and unpredictable geological feature, the
Leaky Fault, interfered with the planned transfer of stress as calculated by Dr. Abel. The Leaky
Fault interference with the calculated arch load stress transfer was the primary cause of the
ground fall. There is no evidence in the record to suggest that, prior to the ground fall, Newmont
had any reason to believe that the Leaky Fault posed any threat to the integrity of the ground.
I credit the testimony of Mr. West, Mr. Robinson, Mr. Cross, Mr. Pentony and Dr. John
Able. Based on their testimony and the reports of Dr. Able, received into evidence, I find the
preponderance of the evidence fails to establish that the ground support in the 5655 roadheader
stope was not properly designed, installed and maintained based on known ground conditions
and Newmont's mining experience in similar ground conditions as required by 30 C.F.R.
§ 57.3360.
It is only with hindsight that one can contend that the time, energy and money Newmont
devoted to securing and controlling the underground roof was insufficient to prevent the
December 6th ground fall.

Upon review and consideration of all the evidence, I find and conclude that the
preponderance of the probative evidence does not, in this case, establish that Newrnont did not
provide what a reasonable prudent person, familiar with the mining industry and the protective
purpose of the standard, would have provided in order to meet the protection intended by the
standard.
The evidence and findings that support this conclusion are set forth in greater detail
below under the heading Findings and Conclusions.
FINDINGS AND CONCLUSIONS
l. Newmont Gold Co"mpany ("Newmont") the owner and the operator of the Carlin East
Gold Mine C'Carlin East"), located near Carlin, Nevada is subject to the jurisdiction of the
Federal Mine and Safety Health Act of 1977,30 U.S.C. § 801, et seq.

2. A large ground fall occurred in Carlin East on December 6, 1997, in the 5655
roadheader stope.

3. Citation No. 7951941 (the "Citation") alleging a violation of30 C.F.R. § 57.3360 was
issued by MSHA on December 9, 1997, by MSHA Inspector Bobby Caples.

1039

4. The Citation alleged, in part, that "management has not implemented effective ground
support measures to properly control the ground conditions associated'with the current mining
practices to ensure the safety of miners. This is an unwarrantable failure."
5. Carlin East was first developed in 1993 by an independent contractor called Small
Mine Development ("SMD"). At the time SMD began developing Carlin East, SMD was
responsible for all aspects of the mining operation, including the design, installation and
maintenance of ground support The ground support installed by SMD in Carlin East consisted
primarily of 6-foot splitset rock bolts.
6. In May 1995 Newmont assumed the mining operations at Carlin East. At the time
Newmont took over the 'mining operations of Carlin East it also assumed complete responsibility
for the ground support installed in the mine.
7. One method used to excavate the area is undercut drift-and-fill mining. Drifts are
mined out, then filled with a "backfiW made of cement and aggregate. The backfill is "jammed,
into the mined out drift as tightly as possible using a specially modified tool. Once all of the cuts
are mined and backfilled on a level, access is then driven to the next level below the prior level
until the ore body is mined out.
8. Newmont engages in two types of drift-and-fill operations. The primary method
involves blasting the drifts, after which the loosened material is mucked out. The other type of
drift-and-fill operation employed by Newmont is the use of the roadheader.
9. Newmont introduced the roadheader into Carlin East in June 1997. Unlike traditional
blasting methods the roadheader shears rock from an ore face in 12 to 15 foot advances. As the
roadheader advances, the loosened material is mucked out and removed to the surface. After the
cut is complete, the roadheader is moved to another ore face to cut while the roof of the prior cut
is bolted.
10. Ground conditions vary considerably throughout Carlin East. The primary rock is a
silty limestone, divided into two geotech units known as "Stls 1" and "Stls 2."
11. Geologic faults, mariy of which are undetectable until they are mined through, are
present throughout Carlin East.
12. After Newmont took over the mining of Carlin East from SMD in 1995 it significantly
strengthened the ground support that had previously been installed by SMD.
. 13. In 1995 Newmont experienced three ground falls in the areas that had been developed
and the ground support designed and installed by SMD. One of these ground falls occurred at
the 6090 level of Carlin East.

1040

14. The ground fall in the 6090 area of Carlin East occurred on July 12, 1995,
approximately two months after Newmont assumed operational control of Carlin East from
SMD. It occurred in an area that was being mined using blasting methods. Newmont was not
employing a mining sequence in the 6090 area. The back in the 6090 area was supported
primarily by 6-foot splitset bolts.
15. As a result of the 6090 ground fall. Newmont hired the highly qualified expert Dr.
John Abel to begin advising them on the ground support requirements for Carlin East.
16. In 1995 Dr. Abel recommended that Newmont install longer bolts in Carlin East and
also recommended using dywidag bolts in addition to the splitset bolts in all open areas of the
mine.
17. In order to execute Dr. Abel's recommendations, Newmont shut down the Carlin East
Mine for a period of several days in 1996 for the sole purpose of enhancing the ground support in
various locations throughout the mine including resupporting all the intersections with 12-foot
resin bolts.
18. The ground support in Carlin East was continually improved by Newmont since it
began operations in Carlin East in 1995.
19. Before beginning the roadheader mining activity in Carlin East in June 1997,
Newmont engaged Dr. Abel to develop a mining plan and design for the roadheader mining
activity.
20. Newmont provided the best available data regarding ground conditions in the 5655
roadheader ~ea to Dr. Abel to use to develop a ground support plan, including percent core
recovery data; rock quality designation (RQD) core recovery data; and underground rock mass
ratings ("URMR").
21. In a report dated May 23, 1997, Dr. Abel recommended sequencing the headings off
the main access drift in order to produce what is known as a yield pillar in order to shift the
weight of the ground in all direct!ons from the area being mined. Dr. Abel's report also
recommended a detailed ground support plan, employing what Dr. Abel testified was "belt and
suspenders" approach to ground support.
22. Dr. Abel's May 23 report noted that the "back and rib side ground conditions should
actually be improved by mechanical roadheader excavation, which would eliminate blast
damage." MSHA's expert, Mr. Hoch, also acknowledged that the roadheader would provide an
advantage over blasting in terms of ground support because blasting "would probably fracture the
roof or ribs a little more."

1041

23. According to Dr. Abel, based on the data provided-by Newmont relating to the ground
conditions in the 5655 roadheader area, "rock bolt back support would be necessary and should
be effective" in the 5655 roadheader stope.
24. The ground support recommended by Dr. Abel for the 5655 roadheader stope involved
the use of one-inch diameter dywidag threadbar tensioned bolts at specified intervals. The length
and spacing of the drwidag bolts was dependent upon the drift span to be supported. Dr. Abel
also recommended the use of splitset bolts at equal intervals between the dywidag bolts.
25. The dywidag bolts recommended by Dr. Abel provide tensioned ground support. The
dywidag bolt is inserted into a hole wherein it contacts polyester resin that has previously been
inserted into the hole. The resin "provides an anchorage connection between the bolt and the
rock." Once the resin sets, the bolt is torqued to get "tension top to bottom"
26. The tensioned dywidag bolt squeezes rock layers together between the two ends of the
bolt "to build a beam." The beam is designed to pull the layers of rock together to provide
support.
27. The May 23 report also recommended the use of "mesh support between bolts ... and
supplementary intermediate splitset bolt support between point-anchored bolts. Consistent with
his May 23 report, every bolt pattern recommended by Dr. Abel "was designed to support the full
height--the maximum height of the arches. (Dr. Abel] estimated it as a fourth ofthe span, plus to
allow 2 feet of anchorage beyond the top of the arch."
28. Dr. Abel's May 23rd report includes a diagram labeled "Figure 4" which contains a
bolting pattern and bolt lengths for various drift spans ranging in width from 14 feet to 28 feet.
Referring to the 28-foot span depicted in Figure 4, Dr. Abel recommends the use of 9-foot
dywidag bolts on a 6-foot pattern. Dr. Abel noted in his May 23 report that "[9]-foot long bolts
should provide a minimum anchorage length of2 feet at the maximum reasonable 7-foot height
of the tension zone underlying the maximum 28 feet wide planned roadheader drift." Dr. Abel's
May 23 report recommends the use of intermediate support between the tensioned bolts for the
planned 28-foot span in the form of 6-foot splitset bolts combined with a wire mesh membrane.
29. [n a June 5, 1997, letter to James Pentony, Carlin East's underground mining engineer,
Dr. Abel clarified the basis for his recommendations, explaining that "the bolt lengths are based
on providing bolt anchorage 2 feet beyond the maximum height of the rock arch potentially
loosened above the flat back openings cut by the roadheader commonly referred to as the tension
zone." Dr. Abel further noted "the design height of potentially loosened rock is a function of the
width of the underlyi_ng drift, conservatively assumed to be 1/4 the drift width." By way of
example, Dr. Abel recommended using 9-foot dywidag point-anchor bolts to support a 28 foot
span: 7 feet of the bolt were required to push through the tension zone, allowing 2 feet of the 9foot bolt to solidly anchor in stable rock.

1042

30. Dr. Abel advised Newmont that by calculating 1/4 of the drift span plus 2 feet,
Newmont could calculate the proper bolts lengths necessary to support wider or narrower drift
spans than the examples included in his May 23 and June 5 reports. (Con. Ex. 2, pp. 1 and 5; and
Tr. 254-3 through 6 and Tr. 970-23 through 971-8).
31. The ground support design for the 5655 roadheader area recommended by Dr. Abel
was conservative; that is, the recommended ground support design provided greater support than
the existing ground cohditions otherwise warranted. The mining design and ground support
recommended by Dr. Abel for the 5655 roadheader area reflects the application of widely
accepted procedures and methodology used by rock mechanics and mining engineers.
32. Dr. Abel's May 23 report and his June 5 report include diagrams reflecting drift spans
no greater than 28 feet across. Dr. Abel testified that the diagrams were not meant to reflect
maximum recommended spans, but rather, were intended to demonstrate the application of the
rule that "the design height of potentially loosened rock is a function of the width of the
underlying drift, conservatively assumed to be l /4 the drift width." (Con. Ex. 2, p. 11; and Tr.
245-15 through 20). Based on that, he testified that given the ground conditions in the 5655
roadheader stope, ifNewmont used 12-foot bolts to support the back Newmont could support a
drift span in excess of 28 feet.
33. James Pentony, is the underground geotechnical engineer for Carlin East. He was
involved with the design, installation and maintenance of the ground support in the 5655
roadheader area, including the implementation of Dr. Abel's design and plan for the 5655
roadheader area. Newmont followed the ground support methodology detailed in Dr. Abel's
May 23 (Con. Ex. 1) and June 5 (Con. Ex. 2) reports. (Tr. 963 through 13).
34. For drifts in the 5655 roadheader area with planned widths of 14 - 28 feet (Con. Ex. 1,
p. 9) Newmont installed 12-foot dywidag bolts at 6-foot intervals and 8-foot splitset bolts at 3foot intervals bet~een the dywidag bolts, and covered the entire back with wire mesh. The bolts
installed by Newmont were longer than those recommended by Dr. Abel. (Tr. 969-8 through
16). The bolting patterns installed by Newmont resulted in overlapping bolting patterns at the
intersection of the access drift and the left and right headings. (Tr. 263-8 through 13; 963
through 13; 1051-16 through 1,052-9).
35. Newmont complied with Dr. Abel's mining sequence for the area. (Tr. 963-14
through 969-4). "The purpose for using the mining sequence is to basically control the method
and the timing of distribution of the load transferring to the abutment pillars. In conjunction with
the backfill, you get your backfill sequence and mining sequence all incorporated into one."
36. The backfill used by Newmont in the 5655 roadheader drift-and-fill mining is "a
cement and rock fill which ... exceeds the strength of the actual rock itself because it does n~t
have many joints in it."

1043

3 7. The parties stipulated to the admission of the deposition transcript of Inspector Joel
Tankersley in lieu of his testimony. In October 1997 MSHA Inspector Joel Tankersley
conducted an inspection of the Carlin East Mine. (Tankersley Deposition, 5-23 through 24).
38. As part of Mr. Tankersley's October 1997 inspection he inspected the 5655
roadheader stope area "quite awhile because we had a ventilation issue in that area."
39. At the time Mr. Tankersley conducted his inspection, ·headings had been miried and
backfilled off the left and right side of the main access drift. (Tankersley Deposition 13-7
through I 0). Mr. Tankersley inspected the drift spans in the 5655 roadheader area. Mr.
Tankersley concluded that the spans that he observed were probably 20 feet in width, measured
from the top of the backfill on the left side of the access drift to the top of the backfill on the right
side of the access drift. (Tankersley Deposition, 13-17 through 14-3). At the time of Mr.
Tankersley's inspection in October 1997 he concluded that the ground support in the 5655
roadheader stope area was in compliance with applicable MSHA regulations. (Tankersley
Deposition, 15-18 through 25).
40. Prior to the December 6 ground fall in the 5655 roadheader stope, Mr. Pentony
inspected the progress of the mining in that area approximately once aweek. (Tr. 975-24
through 976-6). Based on his inspections Mr. Pentony concluded that the bolting pattern, the
mining sequence, the type of bolts, the length of bolts, and the type of backfill procedures used
were all proper and in accordance with Dr. Abel's ground support recommendations.
41. Mr. Pentony concluded as a result of his inspections of the 5655 road header stope that
the spans in both the access drift and the headings to the left and right of the access drift were
properly supported. (Tr. 980-23 through 982-4).
42. Mr. Pentony has observed wider spans in similar ground conditions in other parts of
Carlin East. These spans are supported using a bolt system less than or equal to that in the 5655
roadheader stope. These spans have been opened and remained stable for periods in excess of
two years. (T r. 986-7 through 987 -15).
43. In approximately Angust or September 1997, Mr. Pentony measured the rock strength
in the 5655 roadheader stope by taking Rock Mass Ratings. Based on these measurements, and
applying the Laubscher System, Mr. Pentony concluded that the ground conditions and the rock
strength in the 5655 roadheader area in both the Stsl l and Stsl 2 geotech units were stable.
These measurements were provided to Dr. Abel as data for his post-mortem on the December 6
ground fall. (Joint Exhibit 2; and Tr. 987-19 through 997-23).
44. Scott Robertson is a supervisor at the Carlin East Mine. He has held this position
since November 1996. (Tr. 526-22 through 527-10). He and Craig Kerby were the "shift bosses"
responsible for the miners working in the 5655 level on December 6, 1997, at the time the
ground fall occurred.

1044

45. The miners performed a workplace inspection ofth~ 5655 roadheader stope. As part
of the workplace inspection Dennis Stone observed a small pile of rocks on the ground which,
according to Mr. Stone, was not totally abnormal. Neither observed any conditions that indicated
that the ground was unstable. (Stone Deposition, 10-13 through 11-9).
46. While in the 5655 roadheader stope at approximately 8:30 a.m. on December 6, 1997,
Mr. Robertson made a good visual inspection of the back (Tr. 567-4 through 7). He did not
observe any bolts that appeared to be counter sunk (Tr. 567-8 through 10), he did not observe
any baskets that had formed around the bolts (Tr. 567-11 through 13), in fact, he did not see any
indication that the area was taking weight (Tr. 567-14 through 16). Mr. Robertson testified that
he was not aware of any hazardous ground conditions prior to the December 6 ground fall in the
5655 roadheader area. (Tr 533-15 through 534-2).
47. Mr. Robertson returned to the 5655 roadheader area at approximately 12:00 p.m. on
December 6: At that time there were no indications that the ground was taking weight. Nor did
the miners report any unusual conditions. (Tr. 536-15 through 20; 568-15 through 569-4).
48. At approximately 1:00 p.m. on December 6, 1997, one of the shift bosses, Craig
Kerby showed up at heading R8 in the 5655 roadheader area and spoke with Dennis Stone.
While he was in the area a small stone fell through the wire and landed on Mr. Kerby's tractor.
At that point both Mr. Kerby and Mr. Stone noticed that other small rocks were coming down
and hitting the vent line at the top of the drift. (Stone Deposition, 15-20 through 16-6).
49. In response to the rock noises, at approximately 1:00 p.m. the decision was made to
contact the shift boss, Scott Robertson. Mr. Robertson returned to Heading R8 in the 5655
roadheader stope. (Stone Deposition 16-15 through 23 ). Messrs. Robertson, Kerby, Johns, and
Stone conducted a thorough inspection of the area. The group observed that the bolts were
taking weight (the "bolts .. . were starting to recede slightly into the rock ... and they weren't
rusty anymore"). _It was decided at that point that it would be a good idea to pull out the
equipment from the 5655 roadheader area. (Tr. 536-21 through 538-6). Messrs. Robertson,
Kerby, Stone, and Johns reached a general consensus to remove the_roadheader from the R8 area
to the main access drift of the 5655 roadheader area. (Stone Deposition, 10-18 through 11-3; Tr.
538-2 through 14; Tr. 539-12 ~ough 15).
50. Messrs. Robertson and Kerby worked with the two miners to back the roadheader out
of the R8 area and into the main access drift. It took approximately 20 minutes to back out the
machine. It was approximately 2:00p.m. when they finished backing out the roadheader. (Tr.
539- 16 through 23; 541-16 through 20). After the roadheader was backed out, the crew planned
to bring in the bolter to reinforce the back. (Tr 538-2 through 14; 542-19 through 543-19).
51. After the roadheader was backed out of the area and all personnel had been removed
from the area, the access drift was roped off. Even after the roadheader was pulled out of the
5655 roadheader access drift, it stiU was not clear that a ground fall was likely to occur. (Stone

1045

Deposition, 18-1 through 7; and Tr. 543-1 through 5; 544-6 through 8; and 593-8 through 59417).
52. The ground fall on December 6, 1997, occurred at approximately 2:30 to 2:45 p.m.
53. After the ground fall, Messrs. Robertson and Kerby "decided that [they] should pull
everybody out of the mine working on [the 5655] level or below . .. .'' (Tr. 549-9 through 13).
54. The shift preceding the December 6 ground fall began approximately 6:30 p.m. on
December 5 and continued until approximately 5:00a.m. December 6. (Tr. 520-18 through 22).
During that prior shift, the miners in the 5655 roadheader stope were Mitch Woods and Rick
McBride. Larry Cross was one of the shift bosses.
·
55. The workplace inspection form prepared by Mr. Woods on behalf of both himself and
Mr. McBride for the December 5 - 6 shift did not report the presence of any hazards in the 5655
roadheader area, even though the form specifically contains blocks relating to hazardous ·
conditions. Nothing unusual was noted on this form. (Con. Ex. 7; and Tr. 491-7 through 494-7;
846-4 through 847-13).
56. At the end of the shift on December 6, 1997, Mr. McBride completed a form used to
monitor the roadheader cutting activity. Mr. McBride made numerous detailed entries on this
form in his own handwriting. Mr. McBride, however, did not make any comments on the form
that he was delayed during the shift by reason of investigating ground conditions in the 5655
roadheader stope. Mr. McBride did not make any comments on the form relating to ground
conditions in the 5655 roadheader area even though the form contains an area reserved for such
remarks, if applicable.
57. 6n December 5, 1997, Mr. Cross issued a three-day disciplinary layoffto Mr.
McBride becaus~ of his second unexcused absence which occurred on December 4, 1997. (Con.
Ex. 10; and Tr. 498-2 through 499-16).
58. Mr. McBride stated to Mr. Carrico that he thought that Larry Cross was "out to get
him." (Tr. 896-18 through 24.). Mr. McBride also told Mr. Carrico (referring to Mr Cross):
"Larry, I hate that mother f----- and I don't mind telling anybody.''
59. Mr. Hoch, MSHA' s expert, acknowledged that the faults running through Carlin East
were subtle and variable. (Tr. 159-2 through 160-18).
60. The conclusions reached by Messrs. Hoch and Evanto were based, in part, on their
assumption that the Cavity Monitoring System (the "CMS") used to measure the length, width,
and depth of the December 6 ground fall also reflected the width of the 5655 access drift. This
assumption was not correct. (Gov. Ex. 8, p. 4; and Tr. 63-14 through 64-11; Tr. 147-22 through
148-2).

1046

61. The Leaky Fault caused the ground fall in the 5655 roadheader access drift by
interfering with the transfer of stress in all directions as had been planned by Dr. Abel in his
May 23, 1997, design.
62. Dr. Abel reached the following conclusions regarding the December 6 ground fall:
The planned 5655 Level overcut extraction sequence would have
functioned as planned in the absence of the Leaky Fault for the following
reasons:
1. The 5655 AXS drift remained stable during advance and retreat when
temporary L8 pillar yielded because of the solid unmined waste to the
south, west and north sides.
2. The ground fall was anomalous in that it occurred in the more competent
Stls 2 geotech unit in the south end of 5655 AXS.
3. The modifications to the initial extraction sequence increased the R9
yield pillar factor of safety which should have increased overcut back stability.
4. The Leaky Fault dipped away from the 5655 Stope presenting a low
strength weakness that did not provide a path for arch load transfer to
the south.
63. David West testified as an expert witness on behalf ofNewrnont. Mr. West took issue
with the analysis, findings, and conclusions set forth in the Hoch/Evanto report. Mr. West noted
that the Hoch!Evanto Report analysis failed to consider the material strengths of the beam
created by Dr. Abel's ground support design. Whether that beam fails is a function of how much
stress the material will sustain. Using the example of the single sheet of paper, Mr. West noted:
If a stronger piece of paper, in this case, a piece of the card, which
is more rigid, and as I increase the span, the bending or the deflection
of the beam is not as great ....
64. Mr. West reviewed Dr. Abel's May 23 report and concluded that "it was based on
sound engineering and rock mechanic principles that are accepted throughout the industry.
65. Mr. West recognized that Dr. Abel's May 23 report presented "a conservative design"
for the 5655 roadheader stope. (Tr. 346-11 through 12).
·
66. Mr. West reviewed Dr. Abel's post-mortem reports ofthe December 6 ground fall.
Mr. West agreed with the analysis and conclusions reached by Dr. Abel. (Tr. 355-21 through
356-20).

1047

67. Mr. West testified that his independent observations of the Leaky Fault in the Carlin
East Mine "indicate a high degree of variability and unpredictability." (Tr. 365-21 through 24).
68. Because of the variability and unpredictability of the Leaky Fault, "the detection and
prediction of the fault [is] extremely difficult." (Tr. 366-23 through 367-1 ).
69. Mr. Sutich was Newmont's Mine Superintendent for Carlin East. Mr. Sutich testified
that after each ground fall in the Carlin East Mine, Newmont conducted an evaluation of the
circumstances that led to the ground fall situation and Newmont modified its mining techniques
and strengthened ground support in order to ensure that ground falls based on similar
circumstances would not occur in the future. I credit Mr. Sutich's testimony.
70. The increased ground support measures taken by Newmont included using longer
bolts (Tr. 917-5 through 14); using an increased number of bolts and using different types of
bolts (Tr. 917-5 through 10); bringing in an expert, Dr. Abel, to provide design recommendations
on mining methods and ground support (Tr. 916-13 through 21); and even shutting down all
production activities in the mine in order to install additional ground support at various sites
throughout the mine, regardless of whether the site was showing signs that the existing ground
support was not adequate.
CONCLUSION
The Petitioner failed to demonstrate by a preponderance of the evidence that Respondent
did not provide what a reasonable person, familiar with the mining industry and the protective
purpose of the standard, would have provided in order to meet the protection intended by the
standard. Thus the record, as a whole, does not establish a violation of the cited safety standard
30 C.F.R. .§ 57.3360.
The citation should be vacated.
.
ORDER
Citation No. 7951941 and its related proposed penalty are VACATED.

~.FAAVC

.

y (!R-tz;;

st . ett1
Administrative Law Judge

1048

Distribution:
Mark Savit, Esq., Rodney A. Grandon, Esq., PATTON BOGGS, L.L.P., 2550 M Street, NW,
Washington, DC 20037 (Certified Mail)
Marshall Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street,
Suite 1110, San Francisco, CA 94105 (Certified Mail) .
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203 (Certified Mail)

/sh

1049

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

SEP 2 3 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 97-292
A.C. No. 15-17715-03504

v.
Bubba Branch
DIAMOND MAY MINING,
Respondent
DECISION
Appearances:

Susan Foster, Esq., U.S. Department ofLabor, Office of the Solicitor,
Nashville, Tennessee, for the Petitioner;
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C. , Lexington,
Kentucky, for the Respondent.

Before:

Judge Bulluck

This case is before me upon a Petition for Assessment of Penalty filed by the Secretary of
Labor, through her Mine Safety and Health Administration ("MSHA"), against Diamond May
Mining ("Diamond May"), pursuant to section 105 ofthe Federal Mine Safety and Health Act of
1977, ("the Act"), 30 U .S.C. §815. The petition seeks a civil penalty of $1,855.00 for an alleged
violation of section 77.1006(a), 30 U.S.C. §77.1 006(a).
A hearing was held in Prestonsburg, Kentucky. The parties' post-hearing briefs are of
record. For all the reasons set forth below, the citation shall be AFFIRMED.

I. Stipulations
The parties stipulated to the following facts:
1. Respondent is subject to the Federal Mine Safety and Health Act of 1977.

2. Respondent and its Bubba Branch Mine have an effect upon interstate commerce
within the meaning of the Federal Mine Safety and Health Act of 1977.
3. Respondent and its Bubba Branch Mine are subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and, thus, the administrative law judge bas the
authority to hear this case and issue a decision.

1050

4. Mine size is as stated on the proposed assessment dated July 1, 1997; i.e., 676,242
production tons per year for respondent and 411 ,574 production tons per year for the subject
mine.
5. Payment of a reasonable penalty will not have an adverse effect on the ability of the
respondent to continue in business.
6. Order No. 4472213 and Citation No. 4472214 were served properly on Respondent.
7. There is no procedural defect in this case which affects the validity of this proceeding.
8. Respondent's history of prior violations for its Bubba Branch Mine is as indicated on
the R-17, Assessed Violation History Report. The parties agree that the R-17 may be admitted
into evidence without objection.
II. Factual Background
On March 18, 1997, MSHA Inspector Denver Ritchie, unaccompanied by a
representative of the operator or the union, visited Diamond May's Bubba Branch, a surface coal
mine, in order to conduct a spot inspection of its haulage roads and a Triple A inspection of its
contract highwall mining operation (Tr. 14-15). Upon arriving at the No. 7 coal pit, the inspector
observed a 992C Caterpillar front-end loader loading out blasted overburden material into
Caterpillar rock trucks, in a manner that he concluded posed an imminent danger to the operator
(Tr. 15-19). Accordingly, pursuant to section 107(a) of the Act, Inspector Ritchie immediately
issued Imminent Danger Order No. 4472213 at 9:05 a.m., to mine superintendent Roger Pigman,
who removed the front-end loader and the operator from the site (Tr. 42-43). Order No. 4472213
describes the .dangerous condition as follows:
Safe work procedures and practices were not being followed in the No. 7
coal pit where a 992C Caterpillar front end loader was in the process of trying to
shack {sic] down a loose, fractured over hanging high wall approximately 65 foot
[sic] in height which had been drilled, blasted and was in the process ofbeing
loaded out in order to uncover the coal bed. The underlying cause is that
management failed to safely break down the materials for safe loading. 30 CFR.
70-1006a. Citation No. 4472214 will be issued under 30 CFR 1006a for this
practice
(Gov' t Ex. 3). Inspector Ritchie also issued section I 04(a) Citation No. 4472214 at the same
time, alleging a significant and substantial violation of30 C.F.R. §77.1006(a), describing the
condition as follows:

1051

A safe work area was not provided for the operator of the 992C Caterpillar
front end loader which was observed trying to breack [sic] down a loose, fractured
over hanging high wall which had been blasted and was in the process
of being loaded out in order to uncover the No.7 coal seam. The highwan was
approximately 65 foot [sic] in height. This condition and practice was the factor
that constituted the issuance of Imminent Danger Order No. 4472213 dated
3-28-97 there for [sic] no abatement time was set
(Gov't Ex. 4). Later that day, a dozer was placed on top of the pile, and the material was pushed
down to form a more gradual slope and a toe, from which a front-end loader could remove the
material (Tr. 47-48, 116, 154).
III. Findings of Fact and Conclusions of Law
A. Order No. 4472213
It is undisputed that Diamond May did not file a notice of contest respecting Imminent
Danger Order No 4472213. The Secretary takes the position that failure to timely contest the
order under section 107(e)(l) of the Act, 30 U.S.C. § 817(e)(1), and section 2700.22 of the
Regulations, 29 C.F.R. § 2700.22, renders the order final and, therefore, not at issue in this
proceeding (Tr. 6-7; Sec. Br. at 10-12). Diamond May takes the contrary view that the validity
of the order is properly before me, based on inconsistency between the wording of the Act and
the Regulation, and because Diamond May included contest of the order in its contest of the civil
penalty associated with the 104(a) citation (Tr. 7-9; Resp. Br. at 6). I am not persuaded by
Diamond May's rationale, and for the reasons set forth below, I find that Imminent Danger
Order No. 4472213 is FINAL.
Section 107(a) of the Act, 30 U.S.C. § 817(a), authorizes an inspector to issue an order
requiring the oper~tor to remove all affected persons from an area whenever, in the inspector's
judgment, the condition in the area poses an imminent danger. Section 107(e)(l) of the Act,
30 U .S.C. § 817(e)( I), in pertinent part, sets forth the requirements for contesting an imminent
danger order as follows:
Any operator notified of an order under this section or any representative
of miners notified of the issuance, modification, or termination of such an order
may apply to the Commission within 30 days of such notification for
reinstatement, modification or vacation of such order.
Similarly, section 2700.22(a) of the Regulations provides the following:
A notice of contest of a withdrawal order issued under
section 107 of the Act, 30 U.S.C. 817, or any modification or
termination of the order, shall be filed with the Commission by the

1052

contesting party within 30 days of receipt of the order or any
modification or termination of the order.
Turning to the facts of this case, 30 days from the March 18, 1997, issuance of the order,
was A_pril 17, 1997. Diamond May's Answer to the Secretary's Petition for Assessment of
Penalty contests the validity of the citation and order, but was filed on September 22, 1997, some
five months in excess of the statutory and regulatory requirement. It is noted that Diamond May
has provided no precedent for the proposition that filing within 30 days is not a mandatory
requirement and, indeed, has conceded that it is subject to the requirements of the Act. See ICI
Explosives USA, Inc. v. Secretary of Labor, 16 FMSHRC 1794 (August 1992) (Chief ALJ's
dismissal of imminent danger contest, analogizing an application for review under ·section 107(e)
to a notice of contest under 105(d), which the Commission has long required be filed within the
statutorily prescribed period of30 days). Diamond May has misread section 107(e) of the Act,
however, by interpreting use of the word "may" to relate to when a contest must be filed. In the
context of this section, it is clear that "may" references whether an operator desires to contest an
imminent danger order, not when or how a contest is filed. Diamond May's reading implies no
time limitation on filing and, therefore, would render that portion of the provision meaningless.
Consequently, Diamond May's failure to timely contest the imminent danger order precludes
review in this proceeding.
B. Citation No. 4472214
1. Fact of Violation
This citation charges a "significant and substantial" ('S&S") violation of 30 C.F.R.
§ 77.1 006(a), which provides as follows:
. Men, other than those necessary to correct unsafe
conditions, shall not work near or under dangerous highwalls or
banks.
In resolving whether a violation of the standard had occurred, the parties contend that an
initial determination must be made as to whether the cited area constituted a highwall. 1 The
Secretary argues that the blasted/fractured sandstone cited constituted a highwall (Tr. 19-20, 25,
60; Sec. Br. at 12-13). Diamond May, on the other hand, conten.ds that a highwall can only
consist of solid, unblasted material and, therefore, argues that the cited condition was "blasted

-

- - -·· -·-·- - ····- - - - - 1

Highwall. The unexcavated face of exposed overburden and coal or ore in an open cast
mine or the face or bank on the uphill side of a contour strip mine excavation. U.S. Department
of the Interior, Bureau of Mines, A Dictionary of Mining, Mineral and Related Terms 543
(1968).

1053

overburden" (Tr. 107, 166-167; Resp. Br. at 7-8).2 While neither the Act nor the Regulations
define the term, I need not decide whether the cited condition constituted a "fractured highwall,"
since the plain, unambiguous language of the standard encompasses "banks," as well. The
mining industry uses the term "bank" in a number of instances, including "a usually steeply
sloping mass of any earthy or rock material rising above the digging level from which the soil
or rock is to be dug from its natural or blasted position in an open-pit mine or quarry."
U.S. Department of the Interior, Bureau of Mines, A Dictionary of Mining, Mineral and Related
Terms 77 (1968). Based·on this definition, I conclude that the blasted overburden, cited by the
inspector as the violative condition, comes within the ambit of the standard. Having so
concluded, the next determination to be made is whether the condition was dangerous.
Inspector Ritchie testified that the overburden in the No.7 coal pit consisted·offractured
sandstone in stacked, loose components that ranged from granular size to eight-by-eight foot
pieces, weighing between eight and ten tons (Tr. 20-21). He estimated the pile to reach 65 feet in
height, 50 or 60 feet in depth, and with the toe removed where the end-loader was operating, to
constitute a vertical wall of approximately 90 degrees (Tr. 20, 22-24, 61-63, 78-79, 81-82, 89-90,
98; Gov' t Ex. 5). According to Inspector Ritchie, a crack of one to two feet in width, located
eight feet back from the face and extending from top to bottom, separated the blasted overburden
into two sections (Tr. 34-35, 67-69). He described a large, flat piece of sandstone or chimneylike structure on the top of the pile, which he estimated to be six to eight feet wide, extending
beyond the rest of the loosely stacked material by five to six feet (Tr. 25-28, 74-76; Gov't Ex. 5).
This chimney-like structure, Inspector Ritchie testified, was loose and difficult to get down, and
from his standing position on the No. 7 coal seam, approximately 100 feet away from the wall,
he observed the operator backing up and ramming the wall with the bucket of the front-end
loader, in the inspector's opinion, to shake down the blasted material for loading (Tr.l6, 28, 32,
65). According to the inspector, "every time.he would hit the wall, due to this crack that's in it
and separations, the front part of the chimney portion of the wall would move back and forth"
(Tr. 33-34, 36:37). Inspector Ritchie stated that, in his judgment, based on the movement of the
wall that he had ob&erved over the course of the few minutes it took to reach the front-end loader,
the wall could collapse at any moment (Tr. 35-36, 42). Inspector Ritchie also testified that
material falling at an angle some 40 feet above the loader could invade the windshield,
irrespective of whether it is glass or Plexiglas, and cause fatal injury to the operator (Tr. 32,
40-42, 71-73, 91-92). Furtherm<;>re, the inspector testified that approximately one hour after the
instant order and citation had been issued, on or about 10:00 a.m., he observed the top two
blocks, eight to ten feet in size, fall onto the area where the front-end loader had previously
been operating, without anyone being around or on the area (Tr. 43-45,69-70, 91-92).

2

0verburden. Used by geologists and engineers in several different senses. By some, it
is used to designate material of any nature, consolidated or unconsolidated, that overlies a deposit
of useful materials, ores, or coal, especially those deposits that are mined from the surface by
open cuts. /d at 780.

1054

According to Inspector Ritchie, the highwall miner operator also saw the collapse of the top
portion of the wall (Tr. 70).
Diamond May disputes that the vertical face of the fractured overburden was as steep as
90 d~grees, and postulates that unconsolidated material standing at a 90 degree angle would defy
gravity and nature (Resp. Br. at 8-9). Dirk Smith, engineering assistant to Diamond May's
president, testified to being unsure of whether he had checked the No. 7 coal pit prior to
Inspector Ritchie's 9:00 ·inspection on the morning of March 18'\ but that when he did inspect
the site considerably later, around lunchtime, the face of the pile had not been vertical, but
"would appear to be steep due to the angle of repose of this material" (Tr. 106-109, 125-127,
133, 135-136, 145-146). Mr. Smith acknowledged that he had not actually surveyed or
diagramed the cited condition during this inspection, but that the angle of repose of shot material
is sometimes steep; he estimated the face of the pile to lay back at an angle of80 degrees (Tr.
109-110, 114, 126, 130, 140-141 )_3 Mr. Smith also testified that he was not in the pit during
operation of the front-end loader, that he did not observe any overhanging chimney-like structure
on the top of the pile, and that he did not recollect the top having failed, as alleged by Inspector
Ritchie (Tr. 1 12, 120-121, 128, 130).
Joseph Jacobs, Diamond May's director of risk management, acknowledged that he "did
not see the area that was cited until after the condition that he alleged had been there had
allegedly been rectified," and that he had not heard of the "big rock up on top" until Inspector
Ritchie referenced it in his testimony during the hearing (Tr. 169-170).
Diamond May largely presented evidence on the typical loading geometry for the Hazard
No. 7 seam surface mining operation, rather than on the particulars of the overburden cited in this
case (See Resp. Exs. 1, 2; Tr. 114, 121-125). Inspector Ritchie's assessment of the condition
which he citeq remains unrebutted, since Diamond May has produced no witnesses that observed
the condition during the relevant timeframe, and has conceded that, although improbable, a
vertical wall is possible (Tr. 136). While neither Inspector Ritchie nor Dirk Smith actually
surveyed the cited wall, it is clear from their estimates of the slope that it was steep. Moreover,
Diamond May has produced no evidence contradicting Inspector's Ritchie testimony that he
observed the top of the wall wobbling when the operator rammed it with the bucket of the frontend loader. That the top of the wall collapsed by itself an hour after the condition had been cited,
a fact also unrebutted by Diamond May, removes any doubt that the slope of the wall, in and of
itself, posed a very dangerous condition, compounded by the ramming of the front-end loader. I
am not persuaded by any suggestion that the distance between the cab of the front end-loader and
the wall provided adequate protection to the operator, given the circumstances under which the

3

Angle of repose. The maximum slope at which a heap of any loose or fragmented solid
material will stand without sliding or come to rest when poured or dumped in a pile or on a
slope. ld at 39. See also Tr. 22, 103-104 (the normal angle of response for unconsolidated
material is appro_ximately 35 degrees).

1055

-

equipment was being operated. Accordingly, the Secretary having established that a miner had
been working near or under a dangerous bank, the evidence is clearly sufficient to sustain the
·
violation.
2. Significant and Substantial
Section 104(d) of the Mine Act designates a violation "significant and substantial"
r·s&S") when it is "of such a nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard." A violation is properly
designated S&S "if, based upon the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." Cement Division, National Gypsum Co., 3 FMSHRC.822, 825
(April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set forth the
four criteria that the Secretary must establish in order to prove that a violation is S&S under
National Gypsum: 1) the underlying violation of a mandatory safety standard; 2) a discrete safety
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 Buck Creek Coal, Inc.
v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103104 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
Evaluation of the third criterion, the reasonable likelihood of injury, should be made in the
context of"continued mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July
1984). Moreover, resolution of whether a violation is S&S must be based "on the particular facts
surrounding the violation." Texasgulf, Inc.. 10 FMSHRC 498, 50 I (April 1988).
Inspector Ritchie found the violation to be S&S. He testified that, based on the
separation in the wall and the back and forth movem~nt of the chimney-like portion when the
bucket rammed ir, he had determined it very likely that continued ramming would eventually
knock the top down, and that the falling material could slide off the arms of the bucket into the
windshield, resulting in serious injury to the operator, even death (Tr. 33-37). The evidence,
evaluated in terms of continued mining operations, proves the inspector's judgment to be sound,
since the size of the sandstone· blocks that fell in the area from which the operator and the frontend loader had been removed an hour previously, was roughly eight-by-eight feet, weighing
eight to ten tons. I find, based on the evidence, that there was a reasonable likelihood that
collapse of the top, which hazard was contributed to by the steep angle of the wall and ramming
by the front-end loader, would result in an injury of a very serious nature. Therefore, I conclude
that the violation was, indeed, "significant and substantial."

1056

-

3. Penalty
. While the Secretary has proposed a civil penalty of$1,855.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Act, 30 U.S.C. §8200). See Sellersburg Co., 5 FMSHRC
287,"291-292 (March 1993), aff'd163 F.2d 1147 (71h Cir. 1984).
Diamond May is~ medium-sized operator, with a history of no prior violations of the
standard at issue and an overall record that is not an aggravating factor in assessing an
appropriate penalty (Gov't Ex. 1). As stipulated, the proposed civil penalty will not affect
Diamond May's ability to continue in business.
The remaining criteria involve consideration of the gravity of the violation and the
negligence of Diamond May in causing it. I find the gravity of the viol~tion · to be serious, since
the potential for grave injuries to miners, ranging from cuts and broken bones to head injuries
and death, caused by large blocks of sandstone falling into the operators' cab, is substantiated by
the record. Consideration of the operator's aggravating conduct, i.e., ramming an already steep
wall of unconsolidated material with the bucket of the front-end loader, so as to shake down the
top, leads me to ascribe high negligence to Diamond May. Therefore, having considered
Diamond May's medium size, insignificant history of prior violations, seriousness of the
violation, high degree of negligence, good faith abatement and no other mitigating factors, I find
that the $1,855. 00 penalty proposed by the Secretary is appropriate.
ORDER
Accordingly, Order No. 4472213 is FINAL, Citation No. 4472214 is AFFIRMED, and
Diamond May is ORDERED TO PAY a civil penalty of$1,855.00 within 30 days of the date of
this decision. On receipt of payment, this proceeding is DISMISSED.

Administrative Law Judge
Distribution:
Susan Foster, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, PSC, 841 Corporate Drive, Suite 101,
Lexington, KY 40503 (Certified Mail)
/mh

1057

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

SEP 2 4 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-645-M
A.C. No. 02-00152-05503 WJ6

V.

Magma/Superior Mine

DYNATEC MINING CORPORATION,
Respondent

DECISION

Appearances:

Edward H. Fitch, IV, Esq., Office of the Solicitor, U.S. Department of
Labor, Arlington, Virginia, for Petitioner;
C. Gregory Ruffennach, Esq., Durango, Colorado, for Respondent.

Before:

Judge Manning

This case i_s before me on a petition for assessment of penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Dynatec
Mining Corporation (''Dynatec'') pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The petition alleges 14
violations of the Secretary's safety standards. A hearing was held in Denver, Colorado. The
parties presented testimony and documentary evidence, and filed post-hea::-ing briefs.
I. FINDINGS OF FACT

A. Background
The citation and orders contested in this proceeding were issued by MSHA following a
fatal accident at the Magma/Superior Mine on August 10, 1993. This mine was an underground
copper mine in Gila County, Arizona. The mine is no longer in operation. The accident
occurred when a wooden structure that had been constructed inside the 865 Raise collapsed
killing four miners who were in the raise. The mine operator was Magma Copper Company
("Magma Copper'') and Dynatec was the independent contractor who constructed the raise and
the wooden structure within the raise. The Secretary issued citations against both Magma

1058

Copper and Dynatec. This proceeding involves one section 104(d)( 1) citation and 13 section
104(d)(l) orders of withdrawal. The Secretary proposed a civil penalty of$700,000 for the
alleged violations.
In 1996, an indirect subsidiary of Broken Hill Proprietary Company Limited merged into
Magma Copper. As a result of this merger, Magma Copper became BHP Copper, Inc. ("BHP
Copper"). On July 17; 1998, BHP Copper, the United States Attorney for the District of
Arizona, the Secretary of Labor, and the State of Arizona executed a Global Settlement
Agreement (the "Global Settlement"), which resolved all of the issues between the parties related
to the investigation of the accident by the United States and the State of Arizona. Under the
Global Settlement, BHP Copper agreed to plead guilty to two misdemeanor cotmts tmder section
llO(d) of the Act and to pay criminal penalties for these cotmts. BHP Copper agreed to pay civil
penalties tmder section 110(a) ofthe Act in the amount of$800,000. BHP Copper also agreed to
pay certain sums to the State of Arizona. On July 17, 1998, a United States Magistrate Judge of
the U.S. District Court for the District of Arizona approved the settlement of the criminal
matters. By order dated July 23, 1998, I approved the settlement of the civil proceedings brought
against Magma Copper under section 110(a) of the Mine Act.

B. The Raise
A raise is a vertical or inclined opening driven upward from a level in a mine to connect

with one or more levels above. A Dictionary of Mining, Mineral, and Related Terms. 893
(1968). The 865 Raise (the "raise") was about 364 feet high and connected the 4000 track level
with the 3763,3700, and 36361evels. The raise was about 10 degrees from the vertical and was
angled towards the footwall. 1 The excavation for the raise was constructed to provide an opening
of at least I 0 feet by 20 feet. The raise was designed to serve several functions. First, it was to
be an ore pass through which blasted ore-bearing rock (generally called "muck") would be
dumped. This muck would be dumped down the raise to the 4000 track level for transportation
to the mill. Second, the raise was to serve as a secondary escapeway. This escapeway (generally
called the "manway") could be used to evacuate miners in the event of an emergency and could
also be used to gain access to various parts of the raise. A drawing of the raise from Joint
Exhibit A is attached to this decision as Illustration No. 1.
In order for the raise to serve as an ore pass and a man way, Magma Copper designed a
rectangular wooden structure to be installed in the raise. This wooden structure contained two
compartments, which were framed with ten by ten inch timber and were separated by armored
cribbing. The ore pass compartment had inside dimensions of about six by eight feet. The
manway compartment was about six by six feet and contained water and air lines, a ventilation
pipe, a timber slide, and a series of ladders with landings. Two drawings showing the support
timber of the wooden structure from Joint Exhibit Bare attached to this decision as Illustration
Nos. 2 and 3.
1

A "footwall" is that part of the country rock which is below the ore deposit.

1059

The wooden structure within the·raise (the "raise structure") was designed by engineers
employed by Magma Copper. The timbers used to construct the raise structure were precut by
Magma Copper. Dynatec drilled and blasted the raise and built the raise structure in one
operation. That is, as drilling proceeded upward from the 4000 level, the raise structure was built
to within a few feet of the face to provide a work platform upon which to drill the next round.
The raise structure was built in segments. Each segment is rectangular in shape and the
support structure consists of side-by-side interconnected sets constructed with ten- by ten-inch
timber cut to Magma's specifications. The support structure is shown in Illustrations 2 and 3
attached to this decision. In essence, the outside of the structure is framed with the ten by ten
timber and the inside is lined with timber. The ore pass compartment was lined with 6- by 8-inch
armored cribs. These cribs were armored with angle iron plates to contain the broken muck
within the ore pass. The manway compartment was enclosed with 3-inch wooden lagging nailed
outside the timber framework.
Nails, screws, and mechanical fasteners were not used to secure the framework for the
raise structure. Instead, daps and tenons were present at the joints of the framework. Magma
Copper relied on gravity and blocking between the framework and the rock walls of the raise to
keep the structure together. Magma Copper believed that the host rock in the raise would tend to
squeeze the raise structure thereby keeping it in place. The lagging along the outside of the
framework for the manway was nailed into place. The cribbing used for the ore pass
compartment was installed using a "birdcage" design. Vertical steel channels were nailed to the
framework on all four sides of the ore pass. The flanges on these steel channels were one-half
inch deep. As the raise structure was constructed, 6- by 8-inch armored cribs were slid into the
charu1els, one on top of another, until that section was full. The next horizontal timber frame was
then placed above the last crib. The process was then repeated as the next segment was
constructed on top of the previous segment. A drawing showing the construction of a birdcage
from Joint Exhibit A is attached to this decision as Illustration No. 4.
As the raise structure was built, blocking was installed at each segment where the vertical
and horizontal members of the framework were joined. The raise structure was framed at
intervals of seven feet four inches and each frame is called a set. The sets are consecutively
numbered from the bottom to the top. This blocking at each set prevented the raise structure from
moving outward horizontally and kept the vertical posts in line. Rectangular 12-inch wooden
blocks were placed against timber joints and wedges were used between the host rock and the
blocks to tighten the blocking into place. The blocking was designed to help support the walls of
the raise and to prevent these walls from crushing the raise structure in the event of movement.
The number of blocks used depended upon the space between the framework and the host rock.
As each segment of the raise structure was built, the raise itself was drilled and blasted.
Boards placed on top of the most recently constructed segment provided a work platform for the
next round of drilling and blasting. Rock from each blast would fall between the framework of
the raise structure and the host rock. This material is generally referred to as backfill.

1060

The raise structure was not anchored into the rock wall of the raise at any location
between the 4000 track level and the 3763 level, except at the feeder immediately above the track
level. Such anchors are generally called bearing sets and are designed to transfer the weight of
the raise structure above the bearing set to the surrounding host rock. There were no bearing sets
for a distance of about 200 feet. Approximately 28 segments of the raise structure were
constructed between the feeder and the 3763 level without bearing sets.

C. A Brief History of the Raise
Magma Copper solicited bids to construct the raise, the raise structure, and other facilities
in December 1992. Four independent contractors, including Dynatec, submitted proposals. The
scope of the work was set out in drawings and specifications developed by personnel at Magma
Copper. Dynatec was awarded the contract later that month. The contract stated that Magma
Copper would provide all construction materials and consumable supplies, utilities, technical and
surveying services, and other services and faci lities. Dynatec was to provide all labor and
supervision, tools and equipment, and a safety and .training program for its employees. Magma
Copper supplied the drawings and specifications for the project. Dynatec proposed alternative
methods of constructing the raise structure. Magma Copper rejected Dynatec's proposed
alternatives and the raise structure was constructed in accordance with Magma Copper's design
specifications.
In June 1993, Dynatec completed construction of the raise from the 4000 level up to the
3763 level. Starting in late June, Magma Copper began dumping muck from the 3763 level
down the ore pass. Dynatec continued to drive the raise from the 3736 level up to the 3636 and
also used the ore pass. In June and July. Magma Copper pulled ore from the bottom of the ore
pass about once a shift. In late June and early July, material would sometimes become hung up
near the feeder chute at the 4000 level. Explosives were sometimes used to free the hangup.
Between, July· II and July 28, there were apparently no hangups in the ore pass. This case
involves that portion of the raise between the 4000 and 3763 levels.
On July 29, 1993, a Magma Copper loader operator dumped 30 to 50 loads of sand (ill
down the ore pass. Sand fill is a sluny consisting of cement and sand . Ore was not pulled from
the ore pass during that shift. Starting on July 30, the ore pass was blasted to clear hangups on a
regular basis. Magma Copper personnel determined that the sandfill had hardened near set II in
the ore pass and that this hardened sandfill was responsible for the continuing hangups the raise
was experiencing.
On August 3, Magma Copper made a concerted effort to blast the cemented sandfill out
of the ore pass. This area of the ore pass was blasted about four times on the B shift on August 3.
After the area was blasted, Magma Copper employees discovered that the ten- inch timber
between the ore pass and the manway (the "divider plate") was broken at set 8.
Two Dynatec employees, including Project Superintendent Mark Spaulding, inspected the
raise and found ~o cribs missing between the ore pass and the manway at set 20, muck in the

1061

manway at that location, and a cracked divider at set 8. They determined that the raise structure
had settled about eight to ten inches from its original installation. The settlement was not
uniform across the raise structure. Magma Copper's Team Leader for the raise project, Matthew
Kannegaard, was notified. He told the Dynatec employees that some settlement was to be
expected.
As a result of$e damage, Magma Copper closed the raise on August 4. Magma Copper
provided Dynatec with a list of nine items that needed to be repaired. These items included:
removing the sandfill from the ore pass, cleaning down the manway, stabilizing the broken
divider plate at set No. 8, repairing all broken ladders in the manway, spraying shotcrete in sets
20 and 21, and installing spreaders on all short man way wall plates. (Joint Ex. 115).
On August 6, at a going away breakfast for Dynatec supervisor Ronald Spry, Spaulding
told Kannegaard that it was important that Magma Copper stop blasting and overloading the
raise. (Tr. 728). Mr. Spaulding suggested that Dynatec install a sand grout backfill between the
raise structure and the country rock to stabilize the structure. Spaulding understood that Magma
Copper would no longer blast hangups in the raise except when absolutely necessary. Air lances
and sledge hammers would be used to free hangups whenever possible.
Dynatec employees entered the raise structure from the 3763 level and used explosives to
remove the sandfill material that was blocking the ore pass. Dynatec then completed most of the
repairs set forth in Mr. Kannegaard's memo. On the evening shift of August 9, Magma Copper
began using the ore pass for production.
On the evening shift on August 10, muck was pulled from the bottom of the raise. A
hangup was reported at set No. 8. Magma Copper employees attempted to use an air lance to
free the hangup. When that was not successful, Magma Copper employees prepared to blast the
hangup. The ore pass was blasted, but it became Q.ung up again a short time later. Preparations
were made to bl~t the ore pass a second time. Bill Wilson, the Dynatec raise superintendent that
replaced Mr. Spry, removed all Dynatec employees from the raise structure at that point because
he did not believe that such blasting was safe. (Tr. 739). Four Magma Copper miners entered
the raise from the 4000 level to set up the blast and the raise structure failed at about 9:45p.m.
D. The Accident
The exact sequence of events that occurred on the night of August 10, 1993, is not
known. It appears that a dividing wall between the manway and the ore pass in the 865 raise
gave way allowing muck that was in the ore pass to fall down the manway. Magma Copper
employees dumped a considerable amount of muck into the ore pass on August 10 with the result
that it was full of ore at the time of the accident. No muck was pulled from the ore pass during
the day shift on August 10. Muck was pulled during the evening shift for only a short period
because of the presence of the hangup at about set 8. Allowing an ore pass to fill up with muck
contributes to the formation of hangups. The weight of muck that accumulates in an ore pass
puts a significant amount of stress on the raise structure.

1062

It is clear that the dividing wall separating the ore pass· and the manway failed. In all
likelihood the armored cribbing dislodged from the birdcages in one or more sets. The failure of
the dividing wall allowed muck in the ore pass to spill down the manway. The falling muck,
cribbing, and other dislodged material from the raise structure killed the four Magma Copper
miners who were in the manway.

II. DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS OF LAW

A. Summary of the Parties' Positions
1. Secretary of Labor

MSHA's accident investigation team determined that Magma Copper failed to use
prudent engineering practices in the design of the raise for a number of reasons. MSHA
determined that the raise structure was inappropriate and inadequate for the ground in which it
was built because Magma Copper failed to conduct a structural analysis of the design of the raise
structure. Magma Copper failed to incorporate an adequate number of bearing sets to support the
foreseeable loads on the raise structure. MSHA also believes that Magma Copper should have
incorporated mechanical fasteners in the raise structure to prevent joint separation. The Secretary
contends that these and other design failures contributed to the collapse of the raise structure.
MSHA also determined that Magma Copper misused the raise structure by allowing the
ore pass to become completely full of muck before pulling the muck at the track level. It
believes that this repetitive loading and unloading loosened the blocking behind the raise
structure, allowing outward movement of the vertical timbers. MSHA also believes that the raise
structure was damaged from improper hang-up blasting, which accelerated the collapse of the
settled structure..
MSHA believes that the raise structure was in a state of imminent danger from August 3
until its failure on August 10. On August 3, various individuals observed that the raise structure
had settled at least eight inches, that timbers had moved, and that cribbing between the ore pass
and the manway had become di_slodged from the birdcages. MSHA believes that blocking
behind the raise structure was loose and that some blocks had fallen, which allowed the raise
structure to spread outward. Because the cribbing was secured solely by the birdcages, outward
movement of the timbers in the raise structure would allow cribbing to become loose and unable
to hold back the weight of the muck in the ore pass.
The Secretary contends that Dynatec is also responsible for the failure of the raise
structure. She argues Dynatec failed to use prudent engineering practices when it constructed the
raise. She contends that Oynatec failed to determine whether the blocking and backfilling that it
installed was adequate to control the ground and stabilize the structure. The Secretary maintains
that, after the raise structure settled, Dynatec failed to adequately address the problem. It also
failed to adequately inspect and evaluate the condition of the raise on August 3 and 4 to ensure

1063

that all structural problems were addressed. MSHA believes that the repairs completed by
Dynatec were superficial and did not address the structural problems.
The Secretary charged Dynatec with violating four mandatory safety standards. She
contends that the evidence developed during MSHA's investigation and presented at the hearing
demonstrates that Dynatec failed to achieve compliance with all four mandatory standards. The
Secretary argues that Dynatec continued to direct its employees to work on the raise after August
3 on cosmetic and inadequate repairs so that the raise could be put back into production. She
maintains that Dynatec chose to ignore the substantive structural defects that it knew existed in
the raise. She states that whenever Dynatec presented Magma Copper with alternative
construction or repair methods, it demonstrated its awareness of the structural problems with the
raise. As a consequence, she argues that Dynatec cannot escape liability on the basis that it
merely did what it was told to do by Magma Copper. The Secretary maintains that Dynatec had
an independent duty to ensure that the raise was safe and to comply with the Secretary's safety
standards. The Secretary believes that Dynatec's on-site supervisors were aware that the raise
structure was on the verge of collapse after August 3, and that Magma Copper was misusing the
raise, yet they continued to direct Dynatec's employees to work on the raise.
The Secretary contends that the failure of Magma Copper and Dynatec to address the
settlement of the raise before allowing the raise to be used for production resulted in the failure
of the raise structure a day after it was put back into use and only 43 days after Magma Copper
began to dump muck into the ore pass. Given the condition of the raise and the way in which it
was used, there was no question that the raise structure would fail; it was only a matter of time.
2. Dynatec Mining Corporation
Dyn~tec argues that the raise structure was not on the verge of collapse after August 3. It
contends that the materials handling crew of Magma Copper, which cumulatively had less than
four years of mining experience, allowed muck to accumulate in the ore pass thereby creating
hangups. This same crew then used explosives in an attempt to remove the hangup. Dynatec
contends that Magma Copper employees seriously misused the raise in the month preceding the
accident and this misuse caused the failure of the raise structure.

Dynatec also points to the conclusions drawn by MSHA 's technical support personnel
and MSHA's independent consulting structural engineer. The consulting engineer concluded
that the "accident occurred as the result of an improper and incomplete structural design" of the
raise structure. (Joint Ex. 140 at 3). Dynatec argues that Magma Copper's design was not strong
enough for the use to which it was actually put. Magma Copper used the raise beyond its design
capacity. When Dynatec suggested that the raise structure be constructed using a different
method to include bearing sets to make it stronger, Magma Copper rejected all ofDynatec's
suggestions.
When the raise settled in early August, Dynatec states that it suggested to Magma Copper
management that the raise structure be strengthened and improved. These suggestions were not

1064

implemented by Magma Copper. It argues that these suggested repairs would have improved the
raise structure's design capacity. When Magma Copper returned the raise to service prior to the
completion of the permanent repairs suggested by Dynatec, Dynatec recommended limitations on
use that, if followed, would have prevented the raise from being used beyond its design capacity.
Magma Copper assigned inexperienced miners to work in the raise and the miners allowed the
ore pass to be filled to capacity. Dynatec employees advised Magma Copper management on a
number of occasions that in so doing it was misusing the raise. Dynatec also advised Magma
Copper that it should not use explosives to free the resulting hangups.
Dynatec contends that the Secretary's attempt to penalize Dynatec for the four fatalities is
llll!easonable. Dynatec maintains that the Secretary failed to prove that it violated any of the four
cited safety standards. Dynatec argues that its evidence establishes that it was not responsible for
the accident and that the Secretary's decision to proceed against it is unwarranted.
B. General Considerations
Two fundamental concepts must be kept in mind when analyzing the issues in this case.
First, the Commission and the courts have uniformly held that the Mine Act is a strict liability
statute. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (1Oth Cir. 1989). "(W]hen a violation of a
mandatory safety standard occurs in a mine, the operator is automatically assessed a civil
penalty.'' !d. at 1197. The negligence of the operator and the degree of the hazard created by the
violation are taken into consideration in assessing a civil penalty under section 11 O(i). 30 U.S.C.
§ 820(i).
On the other hand, the fact that a fatal accident occurs at a mine does not establish that
the mine operator violated a safety standard. Conditions in a mine are dynamic and can quickly
change. An accident may occur despite the fact that an operator is taking all reasonable
precautions to prevent accidents and is complying with all of the Secretary's safety and health
standards. In order to establish a violation of a safety standard, the Secretary cannot rely solely
on the fact that an accident occurred, but must prove that the operator did not comply with the
requirements of the safety standard.
C. General Discussion· of the Events Leading up to the Accident

At the hearing and in their briefs, the parties devoted much of their attention to the events
that preceded the accident, likely causes of the accident, and Dynatec's actions during this period.
The parties focused less on the individual citation and orders than is typical in a civil penalty
proceeding. I have analyzed these issues and enter findings of fact on these issues as set forth
below. My focus is on the events that transpired on and after August 3, 1993, the date that
Dynatec discovered that the raise had settled. My findings on these issues bear directly on my
findings with respect to the citation and orders. I incorporate my findings below into the specific
findings I made for each alleged violation.

1065

I credit the evidence presented by the Secretary and Dynatec that the raise structure was
not designed to withstand the loads and pressures to which it was subjected during its operation.
The ore pass was blasted on numerous occasions to remove hangups and the sandfill, and the ore
pass was repeatedly filled and emptied of muck. This use of the raise structure precipitated the
settlement and damage that was observed on August 3-4. If the ore pass had simply been used to
transport muck in such a way that muck was loaded onto trains immediately after it was dumped
down the ore pass, it i~ unlikely that the raise structure would have settled or failed. But the raise
was not used solely as a transportation device. Magma Copper frequently used the ore pass to
store the muck until it could be transported out of the mine. It was not unusual for the production
crew to dump muck down the ore pass at a faster rate than the train crew could load it onto trains.
The raise structure was not capable of sustaining these loads, especially when a h~gup
developed. Hangups were more common if fresh muck was dumped on top of muck that was
already in the ore pass. If muck is subsequently drawn from the bottom, a suspended load
remains in the ore pass that places tremendous lateral and vertical pressure on the raise structure.
As stated above, Magma Copper frequently used explosives to remove hangups. Such blasting,
if not properly done, could also place great pressure on the raise structure.
It is important to understand that this raise, including the raise structure, was built based
on conceptual drawings. There were no engineering studies or calculations performed to assure
that the raise structure was capable of withstanding the loads and pressures that would be placed
upon it. It is frequently the practice in the metal mining industry for structures to be built without
the kind of engineering studies that would be required for a public building or a bridge, for
exan1ple. Because this raise structure was unique in its size and height, I find that a reasonably
prudent mine operator would have put more thought and effort into determining if the design
·would hold up to the task. Based on the evidence presented at the hearing, I tind that the raise
structure was not properly designed to be used as an ore pass and manway as it was actually used
by Magma Copper. I credit the testimony and report of James VanLiere, a consulting engineer
retained by ihe Oepartment of~abor, in this regard. He concluded that "procedures and methods
employing the stapdards of care, judgment, expertise, and experience normally associated with
the design of major structures [were not] used in the design ofthis structure." (Joint Ex. 140 p.
3).

The experts retained by_Dynatec reached similar conclusions. For example. Peter J.
Stork, a structural engineer retained by Oynatec. stated in his report that "the design of the 865
raise was deficient, in that the design vertical load capacity of the timber structure was
inadequate to support the gravity loads that would be imposed on the ore compartment walls
under hang-up condi tions, muck storage conditions, or even the dead load of the empty raise
alone." (Joint Ex. D p. 7).
I find that Dynatec constructed the raise and raise structure in accordance with the plans
submitted by Magma Copper. I fmd that Dynatec's method of constructing the raise and the
condition of the raise, including the raise structure, conformed to Magma Copper's designs in all
material respects. I find that up until the time that the raise settled in early August, Dynatec's
performance did not violate the safety standards cited by the Secretary or the spirit of the Mine

1066

Act. I reject the Secretary's argument that Dynatec failed to use prudent engineering practices
when it constructed the raise. 2 The remainder of my decision focuses on the events that occurred
after Dynatec determined that the raise structure had settled eight to ten inches.
On August 3 and 4, Dynatec recognized that the raise had settled and was in need of
repair. Ronald Spry, Dynatec's raise superintendent, testified that he first saw the settlement on
August 3. (Tr. 623). He calculated that the raise had settled about eight to ten inches based on
gaps he saw at various 'sets. The ore pass side of the manway had settled relative to the opposite
end. That is, the ore pass settled and the end wall on the manway side stayed in approximately
the same position. (Tr. 312, 750). Mr. Spry has extensive experience building raises and he
testified that he had "never seen a raise take that much settlement without breaking something."
(Tr. 624). He also testified that this raise was the largest that he had ever worked on in terms of
the size of the excavation. (Tr. 672). Mr. Spry knew that the raise was distressed.
John C. Folinsbee, a consulting mining engineer who testified on behalf of Dynatec, was
experienced in the construction and use of raises. He testified that he had never worked in such a
large raise or a raise with the same design. (Tr. 957). He had never seen a raise that used
birdcages to secure cribbing around an ore pass, but he believes that it was a "reasonable
concept." (Tr. 958). He testified that the raise was under stress after it settled on or about
August 3. He further testified that the raise structure was "compromised" by the settlement and
"there was no way that minor repairs would take it back to the condition that it was used -- as it
was intended from the beginning." (Tr. 943). He went on to state that after this settlement, it
was "obvious to everyone and should have been obvious to everyone right up to the top of
Magma's management that some extraordinary steps should have been taken at that time." (Tr.
981) (emphasis added).
Dynatec inspected the raise several times as did Mr. Kannegaard on behalf of Magma
Copper. As discussed above, it was determined that the raise should be closed. Magma Copper
provided Dynatec y;ith a of list of items that it wanted corrected before the raise was put back
into production. The items were described orally and a formal memorandum was drafted. (Joint
Ex. 115). It is not disputed that these items did not address the settlement problem. For
example, Mr. Spry testified the repair items on the list would not fix the problems created by the
settlement and that the settlement problems could only be addressed by rebuilding the raise
structure. (Tr. 665). Mr. Stork ·testified that the listed repairs did not address the basic design
deficiency of the raise structure. (Tr. 821; Joint Ex. D p. 9). Mr. Folinsbee stated that the repairs
were inadequate to restore the raise to full use. (Tr. 980).
2

For example, the Secretary presented evidence that Dynatec should have used hardwood
instead of Douglas Fir for wedges when blocking the raise or that it should have made sure that there
were no open spaces between the lagging of the raise structure and the walls of the raise. The
Secretary's safety standards do not contain such requirements and are not standard practice at
western metal mines. Moreover, such issues are largely irrelevant to the issues raised by the
citations and orders.

1067

The Secretary contends that the raise structure was in the state of"imrninent danger"
between August 3 and August 10 as a result of the settlement and that no miners should have
been in the raise except those specified in section 107(a) of the Mine Act. I disagree with the
Secretary's analysis. The imminent danger provisions of section l 07(a) only come into play
when an MSHA inspector issues an imminent danger order. Neither Magma Copper nor Oynatec
was required to comply with the requirements of sections 107(a) or 104(c). In addition, I credit
the testimony of Dynatec's witnesses that it was reasonably safe to go into the raise from the top
to remove the hangup 'and, once it was removed, to be in the raise to perform the minor tasks set
forth on Magma Copper's list of repairs. Many of the items were necessary prerequisites to
rebuilding or refurbishing the raise structure in any event, such as cleaning down the manway and
repairing the ladders. Miners working in the raise structure were placed in danger only after the
raise was returned to production.
I credit the testimony of Mr. VanLiere that the raise was "on the verge of failure" after
the settlement of August 3. (Tr. 269). This concept is different from irruninent danger. Mr. Van
Liere testified that until the settlement, the blocking that had been installed was probably·
effective in keeping the raise structure together. (Tr. 267). The blocking should have been able
to withstand some expected settlement, but the settlement that occurred on or about August 3
was substantial. Because lagging was present along the outside walls of the man way, the
blocking could not be observed. As a consequence, Dynatec did not know whether the blocking
was still intact or whether some of the blocking had fallen away or was otherwise rendered
ineffective. (Tr. 268). If the blocking was loose at the center posts, the cribbing in the birdcages
might also become loose as the center posts moved outward. It is important to remember that the
only lateral force keeping the framework of the raise structure together was provided by the
blocking. If the blocking failed, the raise structure could reasonably be expected to fail because
the "restraint provided by the birdcages at the hanging wall" would be decreased. !d. I find Mr.
Van Liere' s testimony particularly persuasive as to possible events that could have occurred after
the August 3 set~lement to cause the raise structure to fail.
Mr. Van Liere stated that no one knows how many sets of blocking were still in contact
with the center posts3 but that he believes that they were probably still "reasonably intact." (Tr.
269). He stated that the raise structure was on the verge of failure because it would not have
taken much to precipitate a failure. (T r. 269-70, 295). If an event caused the blocking
restraining the center post to fall out at a particular set, the center post could kick out, the
cribbing could come loose from the birdcages, and any muck in the ore pass would cascade down
the manway. (Tr. 270). Reloading the ore pass with muck was an event that could trigger a
failure of the raise structure. (Tr. 318). Thus, the raise structure was reasonably stable on the
days following August 3, but a single ordinary event, such as loading the ore pass, could cause
the structure to fail. Mr. Folinsbee's testimony is not inconsistent with Mr. VanLiere's analysis.
(Tr. 988).

3

The center posts are the vertical posts that frame the center of the raise structure and are
often referred to as the divider posts.

1068

It is Dynatec's position that it was reasonable for it to perform the minor repairs set forth
in Kannegaard's memo and then release the raise back to Magma Copper for what it terms
"limited service." It believes that as long as the ore pass was not loaded with muck and blasting
was not performed, it was safe to return the raise to production after the Kannegaard repairs were
completed. I disagree. As stated above, I credit Mr. VanLiere's testimony that the raise was on
the verge of failure and that the structure could fail as a result of a seemingly ordinary event once
it was returned to production. More importantly, I find that it was highly unreasonable for
Dynatec management 'to believe that the raise could be used in the manner that Dynatec expected.
It was virtually impossible for anyone to ensure that the ore pass would not become loaded with
muck. Mr. Folinsbee testified that it was his understanding that it would take about two to three
hours for the production crew to fill the ore pass from set 8 to the 3763 intermediate level. (Tr.
940). Thus, if the productioQ. crew was working and, for one reason or another, the crew running
the trains at the track level could not keep up with the production crew, it would not take long for
the ore pass to become full or nearly full again. Indeed, Mr. Spaulding stated that this is exactly
what happened. The production crew was filling the raise with muck and the "trammers weren't
keeping up with the mucker." (Tr. 74 1). "Muck built up in the raise to where they had another
blockage." Id I find that this was a reasonably foreseeab le event. The Secretary labels
Dynatec's limited service concept a "fantasy." (S. Br. 23). I agree.
Dynatec's concept of limited service is illogical in the context of a producing mine and is
inconsistent with Magma Copper's previous use of the raise. Magma Copper officials made
clear their impatience to return the raise to production as soon as possible. It was unrealistic to
think that they would limit their use of the raise in the manner argued by Dynatec. In addition,
even if such an attempt were made, it was likely that the train crew would get behind and the ore
pass would become full enough to pose a hazard. To summarize, it was foreseeable that the raise
would be loaded in the near future, that a hangup would develop and, given the inexperience of
the Magma Copper crew, that attempts would be made to blast in the ore pass.
Dynatec contends that because the mine and the raise were owned by Magma Copper. it
had no choice but· to allow Magma Copper to use the raise and it had to rely upon Magma
Copper's statements that it would not fill the ore pass or blast in the ore pass until a more
permanent solution to the settlement problem was completed.~ I agree that Magma Copper
owned and controlled the ore pass and it agreed in informal discussions that it would not, as Mr.
Spaulding put it, "misuse" the ·raise. (Tr. 728). Dynatec, however. was an expert in the
construction of raises. Its local managers knew that the raise had been damaged and that the
repairs mandated by Magma Copper did not correct the fundamental problems. It also appears
that they did not hofd the skill and ability of Mr. Kannegaard. Magma Copper's manager for this

Magma Copper indicated that they would allow Dynatec to place a sand grout backfill
between the raise structure and the rock walls of the raise to stabilize the structure. This work was
to be done on the weekends at some undetermined time in the future and, if completed, would have
allowed full us·e of the raise without further settlement or failure.

1069

project, in high regard. 5 (Tr. 768). Based on the record developed in this case, I find that
Dynatec's managers knew or should have known t~at loading the raise or blasting in the raise had
the potential to result in a failure of a significant part of the raise structure and that such an event
would be life threatening to workers in the manway.
Although Dynatec's managers expressed their general concerns to Magma Copper's
managers at a luncheop for Mr. Spry, Dynatec did not communicate to the mine manager or
anyone else that human life was at risk if the ore pass were loaded again. Dynatec's concerns
about the raise were cast in terms of the longevity of the raise. {Tr. 727). Thus, it appears that
the discussions between Magma Copper and Dynatec focused on making the raise structure last
longer rather than ensuring that the lives of miners were not put at risk. It appears that
Kannegaard did not fully comprehend the risks posed by the raise structure after it settled. (See
for example, Joint Exs. 68 and 115).

D. Alleged Violations of30 C.F.R. § 57.3360
On May 10, 1994, MSHA inspector Tyrone Goodspeed issued Citation No. 4410466 and
Order No. 4410467 alleging violations of 30 C.F.R. § 57.3360. The safety standard provides, in
pertinent part:
When ground support is necessary, the support system shall be
designed, installed, and maintained to control the ground in places
where persons work or travel in performing their assigned tasks.
Damaged, loosened, or dislodged timber used for ground support
which creates a hazard to persons shall be repaired or replaced
prior to any work or travel in the affected area.
I find that the raise was a ground support structure. Because the ground at the mine was
generally thought to be squeezing ground, a support structure was needed to keep the raise open
and available for use. The timbers of the raise structure were designed to perform this support
function. Accordingly, the provisions of this safety standard applied to the raise structure
through the application of the first sentence of section 57.3360.

5

Mr. Spaulding testified that Mr. Kannegaard did not consider the settlement of eight to ten
inches to be significant. Kannegaard apparently told Spaulding that the settlement was not "too bad"
and that the raise structure could settle by a full set, seven and one-half feet, before any problems
would arise. (Tr. 720, 767; Joint Ex. 112, 8/3).

1070

1. Order No. 4410467
This order alleges, in pertinent part:
Necessary ground support in the area of the 865 Raise was not
installed to control the ground in places where miners work or
travel. · During the period 3/93- 8/93, management failed to
determine that support, such as backfilling and blocking, was
adequate to control the ground and ground support structure which
contributed to the lateral movement of structure members.
Movement of these structural members caused armored cribbing to .
be dislodged between the manway and ore pass compartment
allowing ore and armored cribbing pieces to fall into the manway
compartment. This violation contributed to the failure of the raise
on 8/1 0/93 which resulted in the death of four miners.
a. Arguments
The Secretary argues that, by agreeing to construct the raise, Dynatec assumed
responsibility to install the ground support structure in such a way as to control the groWld in the
raise to protect miners in the raise from falling ground and from the structure itself. She argues
that its duties under this standard are separate and independent from its contractual obligations to
Magma Copper. The Secretary believes that it is not critical that the "ground" that fell was muck
inside the ore pass, as opposed to ground from the host rock. She states that the order is based on
the fact that the raise structure failed and, as determined by MSHA during its investigation, that
the installation of this structure was inadequate under the requirements of section 57.3360.
Specifically, Dynatec failed to determine, at the time it constructed the raise, whether the backfill
and blocking were adequate to control the ground and stabilize the raise structure.
The Secretary contends that the backfill used behind the raise structure was totally
inadequate. Dynatec used flyrock from blasting. She maintains that backfill was missing from
large areas behind the raise structure and was not uniform in its placement. The Secretary
believes that Dynatec did not take any precautions to ensure that the flyrock was adequate to
serve as backfill. The Secretary also contends that blocking was inadequate and sloppily
installed. The Secretary believes that the backfill and blocking problems were exacerbated by the
overbreak caused by inadequately planned and executed blasting performed by Dynatec miners
when developing the raise. Simply put, the raise was too large for the raise structure with the
result that extensive blocking was required. The Secretary believes that the quantity of flyrock
was inadequate to fill the large space between the raise and raise structure. The Secretary
contends that Dynatec failed to design and use a professional drill blast plan with the result that
the excavation was too large to accommodate the precut timbers.
Dynatec contends that the raise structure controlled the ground. It points to the fact that
there is no evidence that the ground outside the raise structure failed, fell, or contributed in any

1071

way to the accident. The ground never breached the lagging of the raise structure. Dynatec
contends that the Secretary is attempting to stretch the safety standard beyond its intended
meaning to include the muck in the ore pass. It argues that such a construction is contrary to the
plain language of the safety standard. The standard requires the control of ground. The material
transported through the ore pass was "muck" not "ground." Second, it contends that the
Secretary's interpretation in this case is inconsistent with her interpretation in other cases. The
failure of a ground support structure is not the same as the failure of the ground. Moreover,
Dynatec contends that MSHA's interpretation of section 57.3360 does not provide mine
operators with fair notice of what is required.
Dynatec also maintains that the Secretary failed to establish a violation, even ifMSHA's
interpretation is adopted. Dynatec contends that raise structure controlled the muck inside the
ore pass until Magma Copper used the ore pass beyond its capacity and then further damaged the
structure with the improper use of explosives. As a consequence, the Secretary's unfounded
allegations concerning construction defects of the raise structure are irrelevant. The failure of the
raise structure is directly attributable to the damage caused by Magma Copper's poor mining
practices, not Dynatec's installation. In addition, the Secretary's allegations regarding the
construction of the raise are not relevant because, as the Secretary argues, the safety standard is a
"performance-oriented" standard. Th<f is, the method of achieving compliance is immaterial.
Finally, the Secretary failed to prove 11f.at the raise was inadequate as constructed. Dynatec
argues that its evidence established that the blocking and backfill were consistent with good raise
practice.
b. Discussion and Analysis
This case presents unique issues that have never been considered before. In a typical case
under this safety standard there is a fall of ground, usually the roof, or conditions are present that
convince an MSHA inspector that the ground will fall if it is not supported. In such cases, the
issue is whether the mine operator had in place a ground control system to control the ground. In
this case, a nearly vertical raise is involved. There is no evidence that the rock walls of the raise
failed or were ready to fail, rather it appears that there was an internal failure within the raise
structure itself Dynatec contends that because the ground did not fail and was not ready to fail,
there can be no violation.
l reject the Secretary's argument that the muck within the ore pass was "ground" and that
Dynatec violated the standard because the raise structure failed to control such ground. Muck is
ore-bearing rock that has been mined; muck is not ground as that term is used in the safety
standard. Muck is "rock or ore broken in the process of mining." A Dictionary of Mining,
Mineral, and Related Terms, 732 (1968). The term "ground" in the safety standard is directed
towards the rock that remains in the earth after an area has been excavated. Ground is "any
specific part of a mineral deposit, or the rock in which a mineral deposit occurs." !d. at 514. The
standard is designed to protect miners from rock that has not been mined. I find that broken rock
that is being transported from one place in the mine to another is not "ground" and is not covered

1072

by the plain language of the standard. I credit the testimony presented by Dynatec on this issue.
(See, for example, Tr. 628, 741-42, 951 ).
I also fmd that the Secretary's interpretation is not entitled to the deference that is usually
accorded to the Secretary's interpretation of her safety standards. The legislative history of the
Mine Act states that "the Secretary's interpretations of the·law and regulations shall be given
weight by both the Commission and the courts." S. Rep. No. 181-, 95th Cong., P' Sess. 49 (1977),
reprinted in Senate Subconunittee on Labor, Committee on Human Resources, 95th Cong., 2nd
Sess., Legislative History ofthe Federal Mine Safety and Health Act of 1977 at 637 (1978). The
Secretary's interpretation "serves a permissible regulatory function" in that the Secretary has the
authority to protect miners from the hazards presented by mined ore. General Electric Co. V
EPA, 53 F.3d 1324, 1327 (D.C. Cir 1995)(citations omitted); Buffalo Crushed Stone, Inc., 19
FMSHRC 231, 234 (February 1997). The Secretary's interpretation, however, is not "logically
consistent with the language of the regulation." ld.
Finally, I find that the Secretary did not provide mine operators with sufficient notice of
the requirements of the standard. Safety standards must afford reasonable notice of what is
required. In "order to afford adequate notice and pass constitutional muster, a mandatory safety
standard cannot be 'so incomplete, vague, indefinite, or uncertain that [persons] of common
intelligence must necessarily guess at its meaning and differ as to its application"' Ideal Cement
Co., 12 FMSHRC 2409,2416 (November 1990)(citation omitted). A standard must "give a
person of ordinary intelligence a reasonable opporttmity to know what is prohibited, so that he
may act accordingly." Lanham Coal Co., 13 FMSHRC 1341, J 343 (September 1991 ).
When faced with a challenge that a safety standard failed to
provide adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the reasonably
prudent person test. The Commission recently summarized this
te~t as "whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would
have recognized the specific prohi_bition or require!llent of the
standard."
Jd (citations omitted). "The Secretary, as enforcer of the Act, has the responsibility to state with
ascertainable certainty what is meant by the standard he has promulgated." Diamond Roofing
Co. V OSHRC, 528 F.2d 645, 649 (5'h Cir. 1976). In this instance, I find that a reasonably
prudent person would not have recognized that section 57.3360 applies to muck contained in an
ore pass within a raise.

It is important to understand that the raise structure served several important functions.
First, as stated above, it acted as grotmd support for the raise. Second, it functioned as a
transportation system for the ore-bearing rock. Third, it was used by Magma·copper to
temporarily hold or store the ore-bearing rock. Finally. it functioned as a manway. As discussed
below, the Secretary established that the raise structure was poorly designed to serve all four

1073

ofthese functions. That is, many of the design components were inadequate given the four
functions it was to serve. The divider wall between the manway and ore pass was particularly
inadequate given the fact that the ore pass was often full of muck and blasting was used to
remove hangups. The differential settlement of the structure allowed the cribbing between the
manway and ore pass to break loose from the birdcages. Although it is possible that some of the
blocking fell away as the structure settled and that some areas between the structure and the rock
walls of the raise were· not filled with fly rock, these facts do not establish that the rock walls of
the raise were not being controlled. The Secretary did not establish that the ground, rock walls of
the raise, posed a hazard to miners, either at the time the raise was constructed or after the raise
structure settled on or about August 3.
Magma Copper anticipated that the raise would be subject to squeezing ground. The raise
structure was designed to withstand these forces and elements of its design took these forces into
consideration. Some witnesses contend that, in fact, the raise structure was not subjected to
squeezing ground and that this fact played a part in the failure of the raise. Whether that is true
or not, the Secretary did not establish that the raise structure as installed by Dynatec failed to
adequately support the rock walls of the raise. For the reasons set forth above, Order No.
4410467 is VACATED.
2. Citation No. 441 0466
This citation alleges, in pertinent part:
Ground support in the area of the 865 raise was not maintained to
control the ground in places where miners work or travel.
Management failed to properly repair or replace the cribbing and
timber in the raise which was progressively damaged, loosened, or
dislodged as a result of poor mining practices. This violation
contributed to the failure of the raise on 8110/93 ....
a. Arguments
In this citation, the Secretary charges that Dynatec violated the maintenance requirements
of the safety standard. The Secretary contends that Dynatec' s repeated practice of working on
the raise structure after it settled on August 3 to make repairs that were not related to the
structural integrity of the raise structure constituted a violation of the maintenance requirements
of section 57.3360. She contends that the raise structure was in a state of imminent danger after
August 3, 1993, and repairs not related to eliminating the imminent danger should not have been
made. Dynatec's Spry and Spaulding measured about eight inches of settlement in the raise
structure and believed that the timber joints had been crushed. The fact that Dynatec managers
discussed the safety of the raise structure with Magma Copper managers and suggested that the
structure be rebuilt or substantially modified demonstrates that Dynatec knew that the raise
structure was in danger of collapse. The Secretary contends that Dynatec completed the cosmetic
repairs as directed by Magma Copper because Magma Copper wanted to return the raise to

1074

production as quickly as possible. The Secretary argues that the cosmetic repairs performed by
Dynatec between August 3 and 9 were insufficient to restore the raise to a suitable condition to
be put back into full operation.
Dynatec makes many of the same arguments here as it did with respect to Order No.
441 0467, above. After Dynatec repaired the ore pass, the ore pass performed without incident
until it was used beyond its as-repaired capacity and was subjected to blasting by Magma Copper,
in contradiction of recommendations made by Dynatec. In the alternative, it contends that it did
not violate the third sentence of the standard because its employees did not work in the raise
except to make repairs and it is not properly charged with the alleged inadequacies of the repairs.
Dynatec further maintains that the cribbing and timber in the divider wall were notused for
ground support but were used to separate the ore pass from the manway. Finally, it contends that
the Secretary did not establish that the repairs it made failed to eliminate hazards to persons.
Dynatec believes that the citation should be vacated.
b. Discussion and Analysis
Although this citation is similar to Order No. 4410467, discussed above, a separate
analysis is required. This citation specifically relates to Dynatec's conduct after the raise
structure settled. This citation concerns the maintenance of the raise structure after Magma
Copper attempted to remove the sandfill from the ore pass with explosives as opposed to the
construction and use of the raise up until that time. In addition, the citation requires an analysis
of the requirements of the third sentence of the safety standard, as well as the second sentence.
The third sentence requires that damaged, loosened, or dislodged timber used for ground support
be repaired or replaced if it creates a hazard to persons. I conclude that it is appropriate to read
the second and third sentences of the standard together because the citation concerns
maintenance of the raise structure after the settlement. When read together, these sentences make
clear that a mine·operator is not only required to provide ground support in areas where it is
necessary, but it must repair or replace ground support timber if it becomes damaged, loosened,
or dislodged so that the ground support system itself does not present a hazard to miners.
As I stated above, I find that the muck in the ore pass was not "ground" as that term is
used in the safety standard and a failure of a mine operator to adequately control the muck in a
raise would not constitute a violation of section 57.3360. In addition, I find that the Secretary
failed to establish that the rock walls of the raise were not being controlled by the raise structure
after the raise structure settled. The Secretary's witnesses make clear that the failure of the raise
structure may well have been precipitated by the dislocation of blocking at one location. The
dislocation of blocking at one or two locations in the raise would not necessarily have any
significant impact on the ability of the raise structure to support the rock walls of the raise itself.
Thus, it was not proven that the raise structure failed to support or control the rock walls of the
raise. Due to the nature of the accident, it is not known whether blocking was dislocated or the
extent of any dislocation as a result of the settlement. The same is true of the backfill. There is
simply no way to determine whether there were large voids behind the raise structure or whether

1075

the presence of any voids undermined the raise structure's ability to control the rock walls of the
raise. The Secretary bears the burden of proof on this issue.
Nevertheless, the standard also requires an operator to repair or replace ground support
timber if it becomes damaged, loosened, or dislodged so that the ground support structure does
not present a hazard to miners. I find that the Secretary established a violation. As discussed
above, after the raise structure settled on or about August 3, the structure was on the verge of
failure. Any normal event such as loading the raise with muck had the potential to cause a
massive failure within the structure. I find that the Secretary established that the repairs made by
Dynatec did not address the structural problems in the raise structure.
I reject Dynatec's argument that the standard does not apply because its employees were
only in the raise to perform the repairs. Magma Copper made the determination to complete only
limited repairs in the raise structure before it was returned to production. Nevertheless, Dynatec
had expertise in raise construction and its managers knew or should have known that the repairs
that were made did not address the structural problems of the raise. Dynatec did not advise
Magma Copper that returning the raise to production before the raise structure was rehabilitated
created a significant hazard to miners working in the area. Instead, Dynatec informally discussed
the raise structure with Magma Copper managers at a luncheon and the discussion was framed in
terms of longevity of the raise structure not the significant hazards presented by the structure. It
is important to note that it was the perception of Dynatec managers that the lead raise manager at
Magma Copper, Mr. Kannegaard, did not believe that settlement of the raise structure presented a
problem unless it settled seven feet or more. When Mr. Spaulding told Steve Lautenschlaeger,
the mine manager for Magma Copper, that the raise structure needed extensive rehabilitation,
Mr. Lautenschlaeger responded that he had spent enough money on the raise. (Tr. 727; Joint Ex.
147). Mr. Spaulding did not suggest to Mr. Lautenschlaeger that the raise was unsafe to use.
(Tr. 727). .
It was incumbent on Dynatec, the raise construction expert, to take all reasonable steps to
ensure that the raise structure was safe because Magma Copper's managers did not possess the
skill or knowledge to assess the danger. It is clear that. Magma Copper perceived Dynatec's
concerns in economic terms rather than in safety terms . Dynatec knew that "extraordinary steps"
were required but it did not take these steps or advise Magma Copper that these steps were
necessary for the safety of miners. As stated above, it was foreseeable that the raise would
become loaded with muck within a relatively short period of time and Dynatec knew that loading
the raise would put the structure at risk for failure.
It is also important to understand that there was no real agreement that the raise structure
would be rehabilitated in the near future. There had been some preliminary discussions that
Dynatec would be asked to pour a sand grout compound between the structure and the walls of
the raise over several weekends at an undetermined time in the future. While this repair would
have stabilized the raise structure, there was no agreement between Dynatec and Magma Copper
that this woul~ be done. Thus, on August 9 Dynatec did not know how or when more permanent
repairs would ·be made.

1076 .

I do not accept the argument of Dynatec that I should parse the various components of the
raise structure and determine that the cribbing and timber in the divider wall between the
manway and ore pass were not part of the ground support structure. The entire raise structure
served the multiple functions described above. The component parts of the divider wall played a
part in the ground support structure.
c. Significant and Substantial Allegation

An S&S violation is described in section 104(d)( 1) of the Mine Act as a violation "of
such nature as could significantly and substantially contribute to the cause and effect of a ... 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. National Gypsum Co., 3
FMSHRC 822, 825 (April 1981 ). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out a four-part test for analyzing S&S issues. Evaluation of the criteria is made
assuming "continued normal mining operations." US Steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984). The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988).
In order to establish that a violation is S&S, the Secretary must establish: ( l) the
underlying violation of the safety standard; (2) a discrete safety hazard, a measure of danger to
health, 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. Consolidation Coal Co., 8 FMSHRC 890, 897 (June 1986).
I find that the Secretary established all four elements of the Commission's S&S test.
There was a violation of the standard and the violation contributed to a discrete safety hazard.
Under the th"ird element, the Secretary must establish that it is reasonably likely that the hazard
contributed to by the violation will result in an injury, but is not required to show that it is more
probable than not that an injury will result from the violation. US. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996). I find that an injury was reasonably likely given the facts
described above. The raise structure was inadequate and it had been seriously compromised. It
was reasonably likely that without rehabilitating the raise structure, a substantial failure of the
structure would occur resulting ·in an injury of a reasonably serious nature.
d. Unwarrantable Failure Allegation
The Commission held that unwarrantable failure is aggravated conduct constituting more
than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987).
Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." /d. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991 ). The Commission stated that "a
number of factors are relevant in determining whether a violation is the result of an operator's
unwarrantable failure, such as the extensiveness of the violation, the length of time that the

1077

violative condition has existed, the operator's efforts to eliminate the violative condition, and
whether an operator has been placed on notice that greater efforts .are necessary for compliance."
Mullins and Sons Coal Co., Inc., 16 FMSHRC 192, 195 (February 1994)(citation omitted).
Dynatec argues that this violation was not a result of its unwarrantable failure to comply
with the standard because it was "reasonable for [it] to rely on its extensive mining experience in
examining the 865 raise after Magma had misused and damaged it." (Dyn. Br. 67). Dynatec
maintains that "[a]lthough the repairs were temporary and stopgap in nature, the repairs were
reasonable in that they eliminated the possibility of divider wall failure, readied the 865 raise for
permanent repair, and m~de the 865 raise safe for the transfer of ore." ld at 68.
As stated above, the repairs made by Dynatec did not address the structural and
settlement problems in the raise structure. It knew that the raise structure presented a serious
safety hazard to miners in the raise if the ore pass was loaded or blasting occurred in the raise. It
failed to warn Magma Copper managers of the severity of this hazard. Magma Copper's
managers apparently did not understand the implications of the events of August 3 and 4 and
allowed the raise to be returned to production following minor repairs. Dynatec did not take
appropriate actions to ensure that extraordinary steps were taken to rehabilitate the raise before it
was returned to production and miners were allowed to work in the raise. I find that Dynatec's
conduct demonstrates a serious lack of reasonable care. Dynatec's efforts to eliminate the
violative condition were insufficient and it knew that greater efforts were necessary to ensure the
safety of miners under the standard. The violation was the result ofDynatec's unwarrantable
failure to comply with the safety standard.

E. Alleged Violation of30 C.F.R. § 57.11001
On May l 0, I 994, MSHA inspector Tyrone Goodspeed issued Order No. 4410468
alleging violations of 30 C.F.R. § 57.11001. The safety standard provides:
Safe means of access shall be provided and maintained to all
working places.
This order alleges, in pertinent part:
A safe means of access was not provided and maintained to
working places between the 3700 and 4000 levels in the 865 raise
during the period 8/4-10/93. This violation contributed to the
severity of the accident involving the failure of the raise on 8/10/93
which resulted in the death of four miners.
Management engaged in aggravated conduct constituting more
than ordinary negligence in that: ( 1) structural conditions in the
raise were hazardous; (2) ladders had not been secured; (3) timber,
blocking, and cribbing had shifted; (4) armored cribbing was

1078

dislodged and damaged in at least two areas between the ore pass
and manway compartment; and (5) ore and armored cribbing
pieces had fallen into the manway compartment.
Miners regularly traveled the manway compartment during this
period to perform structural repairs and for access to other mine
levels. Management allowed these safe access hazards to exist and
permitted the continued use of the manway during this period.

1. Arguments
The Secretary contends that Dynatec allowed its miners to work and travel in the manway
to complete the repairs authorized by Magma Copper in violation of the safety standard. It knew
that the raise structure was badly damaged and yet allowed its miners to work on matters
unrelated to the root causes of the settlement of the structure. Dynatec failed to provide safe
access for its employees in the raise between August 3 and August 10.
Dynatec states that the Secretary did not establish that the conditions set forth in the order
made it unsafe to work or travel in the manway. Dynatec's evidence established that the repairs
were performed in a manner that provided safe access. The manway was cleaned of spilled ore
prior·to any other work being performed. Dynatec reinforced the timber along the divider wall at
set 8. Although the load that had hung up in the ore pass presented a hazard, there was no
imminent danger. Timbers were not moving and the load had been substantially reduced.
Dynatec removed the hazard by removing the hangup over the sandfill on August 4 and removing
the sand fill on August 6. In addition, Dynatec contends that the other repairs improved the
integrity of the structure. It also repaired the ladders that were damaged during the settlement.
Dynatec further argues that a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would not recognize that the cited safety standard prohibits
the abatement of hazardous conditions.
2. Discussion and Analysis
I agree with Dynatec that the Secretary failed to establish that an imminent danger existed
after the raise structure settled. First, the term "imminent danger" is a legal concept that gives
rise to certain obligations when an MSHA inspector issues an order under section 107(a) of the
Mine Act. Second, imminent danger is defined as a condition in a mine "which could reasonably
be expected to cause death or serious physical harm before such condition ... can be abated." I
find that the Secretary failed to establish that an imminent danger existed on August 3-8, 1993. I
credit the evidence presented by Dynatec in this regard.
As stated above, I fmd that the raise structure was on the verge of failure after the
settlement beca.use, if the raise was returned to production, a normal event such as the loading of
the ore pass with muck presented a significant risk of failure. I fmd that Dynatec performed the

1079

repairs in a safe manner and a safe means of access was provided and maintained to the working
places within the manway. For example, cleaning down the manway, repairing the ladders, and
repairing damaged timber did not present a hazard to Dynatec employees. Many of the tasks
were a prerequisite to the rehabilitation of the raise structure.
Dynatec employees continued to use the manway, however, after the raise was returned to
production. The manway did not provide safe access to working places after Magma Copper
began dumping muck into the ore pass. Dynatec's management was aware of the hazards but did
not warn its employees to keep out of the ore pass. As the expert in raise construction, Dynatec
failed to adequately warn Magma Copper that the manway did not provide safe access after
August 9 when the raise was returned to production. On the evening of August 10; Dynatec
supervisor William G. Wilson ordered all Dynatec employees from the manway because he was
concerned about the hangup blasting that Magma Copper employees were about to perform.
This act saved the lives ofDynatec employees. It also illustrates that Dynatec knew of the
hazards. Dynatec knew that the manway did not provide safe access to the working places in the
raise structure after the ore pass became hung up with muck, especially if blasting was planned.
Based on the evidence presented in this case, I find that the Secretary established a
violation of the safety standard during August 9 and I 0. The man way did not provide safe access
to working places once the raise was returned to production. Dynatec's failure to remove its
employees during this period and provide sufficient warning to Magma Copper constitutes a
violation. Much of the language in the order describing the violation relates to the Secretary' s
contention that Dynatec violated the standard when it was making the repairs to the raise
structure between August 4 and August 8. Nevertheless, the order also covers Dynatec's conduct
in permitting the continued use of the manway after the repairs were made.
· 3. Significant and Substantial Allegation
I find that the violation was S&S. As discussed above, the Secretary established the first
two elements of the Commission's S&S test. I find that an injury was reasonably likely given the
facts described above. The raise structure was on the verge of failure and once the raise was
returned to production it was reasonably likely that part of the raise would fail thereby killing or
"eriously injuring any miners i·n the manway. As stated with respect to the previous citation, it
was reasonably likely that without rehabilitating the raise structure, a substantial failure of the
structure would occur resulting in an injury of a reasonably serious nature.
4. Unwarrantable Failure Allegation
I find that the violation was the result of Dynatec's unwarrantable failure. Dynatec's
conduct after the hangup developed demonstrates a serious lack of reasonable care. Although
Dynatec removed its own employees from the manway after Magma Copper employees began
blasting the ore pass on the evening of August 10, it had allowed its miners to work in the raise
structure earlier that day after the hangup developed. It also failed to suitably warn Magma

1080

Copper's inexperienced employees that they were endangering their lives by continuing to work
in the raise structure below the hangup.

F. Alleged Violations of30 C.F.R. § 57.3401
On May 10, 1994, MSHA inspector Tyrone Goodspeed issued six orders under section
l04(d)(l) of the Mine Act alleging violations of30 C.F.R. § 57.3401. The safety standard
provides:
Persons experienced in examining and testing for loose ground
shall be designated by the mine operator. Appropriate supervisors .
or other designated persons shall examine and, where applicable,
test ground conditions in areas where work is to be performed,
prior to work commencing, after blasting, and as ground conditions
warrant during the work shift. Underground haulageways and
travelways ... shall be examined weekly or more often if changing
ground conditions warrant.
The six orders, Nos. 4410469 through 4410474, allege identical violations. Each order
covers a different shift between August 6 and August 10. For example, Order No. 4410469
alleges, in pertinent part:
Miners were allowed to work in the 865 raise on the "B" shift,
8/6/93, even though management failed to adequately examine
ground conditions in the area prior to work commencing, after
blasting and as ground conditions warranted. This violation. is part
of a practice of a failure to conduct adequate examinations that
contributed to the failure ofthe raise on 8110/93 ....
An adequate examination of the ground conditions and the raise
support structure would have determined that: (1) raise timbers
were shifting and progressively deteriorating; (2) raise timbers
were separating. from posts, dividers, wall plates, and cribbing; (3)
support blocking was sheared and no longer functional; (4)
sections of armored cribbing were dislodged which allowed ore
and armored cribbing pieces to fall into the manway compartment;
(5) the raise support structure had been subjected to water
infiltration and frequent development and hangup blasting; (6) nonuniform placement of backfilling around the timber framework was
contributing to framework separation; and (7) swelling or
squeezing ground conditions were not encountered during raise
construction and use preventing the raise support structure from
.developing the proper structural integrity.

1081

Adequate ground condition examinations of the raise were
warranted to protect miners regularly required to work in the area.
The above noted conditions were visibly obvious and established
that the ground support structure was failing to maintain its
structural integrity.
1. Arguments
The Secretary argues that Dynatec's obligation under this examination standard is to
ensure that adverse ground conditions do not exist and that the support structure is achieving its
purpose. She contends that once the raise structure settled, the integrity of the joints and the
dividing wall was dependent on the blocking installed during construction. As a consequence,
Dynatec had the obligation under this standard to examine the blocking outside the immediately
visible area. Dynatec failed to examine the area around the raise structure to see if the blocking
was still performing its function. Dynatec employees should have cut holes in the lagging around
the manway at strategic locations so that the blocking could be examined. The Secretary states
that the orders cover the period after the Spry luncheon because the evidence establishes that,
from at least that date, Dynatec knew that the raise structure needed to be rebuilt. She also
argues that there was a reasonably detectable hazard before the failure of the raise structure.
The Secretary contends that Oynatec was required to examine the ground and the
structural integrity, blocking, and backfill of the ground support structure prior to work
commencing and after blasting. She argues that a reasonably prudent mine operator would have
cut holes in the side lagging to look at the blocking and joint integrity.
Dynatec argues that the safety standard is not applicable because there were no "ground
conditions" in the "areas where work [was] being performed." (0. Br. 53). Dynatec was
performing work inside the manway and the lagging around the manway isolated its employees
from the ground conditions that existed in the excavation. There was no threat of a ground fall
and, because there was no exposure to ground conditions, there was no requirement to examine
or test the ground. In any event, Dynatec employees performed examinations that were sufficient
to determine that the ground support structure was achieving its purpose. There was no
indication that the raise structure was under stress from the ground. A reasonably prudent person
would not interpret the standard to require the removal of the protective lagging to examine
ground outside the raise structure under such conditions.
Dynatec maintains that the Secretary's attempt to extend the safety standard to require an
examination of the ground support structure is unreasonable. The Secretary was not concerned
about Dynatec's examination of the rock walls ofthe raise, but with its examination of the raise
structure. The safety standard does not require an examination of ground support structures. In
addition, Dynatec believes that it extensively examined the raise structure. Its examinations of
the structure established that the blocking and backfill were still functioning. It also examined
some of the blocking through cracks in the manway lagging. Cutting into the lagging posed a
risk that rock or backfill would fall into the manway. It could also compromise the structural

1082

integrity of the raise structure. Dynatec contends that it "identified every condition identified in
the orders during its extensive examinations of the support structure." (D. Br. 57). Based on
these examinations, Dynatec "correctly determined that extensive, permanent repairs were
necessary before the 865 raise could withstand another hang-up and blasting." /d.
2. Discussion and Analysis
I find that the Secretary established a violation. As discussed above, the raise structure
served several important functions at the mine. Because one of those functions was to support
the ground, the raise structure was a ground support structure. As I stated above, I find that the
entire structure was a ground support structure and I decline Dynatec's invitation to hold that
certain parts of the structure did not serve a ground support function. The safety standard
required mine operators to examine ground conditions in areas where work is performed. I find
that an examination under this standard includes an examination of any structures installed to
support the ground. For example, in a timbered entry in a mine subject to this safety standard,
the examiner would be required to examine the support timbers as well as the ground itself.
Examining only the ground in an area where supports have been installed would not mean much.
An examiner would be required to note that timber posts and cross beams were falling down in
an area, even if the roof looked stable. An operator could not argue that a proper examination
had been conducted if the examiner failed to examine roof support. The posts and cross beams
had been installed to support the roof and they were no longer performing their function. In
addition, the posts and beams themselves would pose a hazard to miners working in the area.
In this instance, the support structure had settled up to ten inches and by August 6,
Dynatec knew or should have known that this structure would be in danger of failing if the ore
pass became loaded with muck. The purpose of examinations under section 57.340 I is to ensure
that the ground and any ground support does not pose a hazard to miners. On August 6, Dynatec
knew that the structure was compromised, but it did not know what members of the structure had
failed. Without performing an adequate examination of the ground and support structure,
Oynatec would not know whether the rock walls of the raise were contributing to the problems or
whether the man way was otherwise unsafe for miners. It examined the inside of the man way
prior to each shift and was able to draw some conclusions, but its ex~inations were not
complete.
Ordinarily, an examiner would not be required to cut holes in the lagging to look at
blocking. In this instance, Dynatec recognized that "extraordinary steps" were required and it did
not take these steps. It peered at the blocking through cracks in the lagging in a few locations
where there happened to be cracks. It did not develop a systematic approach. It knew or should
have known that blocking could have been compromised by the settlement. It also knew that
adequate blocking of the raise structure was a key component in the design and construction of
the structure. A failure of blocking in one or more locations at a critical location could contribute
to a failure of the structure. It would not have been difficult to cut small holes in the lagging to
examine the blocking. I am not holding that Dynatec was required to cut such holes to examine

1083

each set of blocks, but that it was required to develop and implement a plan for examining
blocking at strategic locations.
Dynatec believes that its examinations showed that the blocking was intact. First, it
points to the fact that divider posts had not kicked out along the manway. I find that such a fact
does not establish the integrity of the blocking. Blocking could have fallen away at a particular
set and the timbers could have remained in place until the lateral force of a hangup pushed it out.
Second, Dynatec points to the fact that further settlement was not occurring. The fact that the
raise structure was not settling at that time establishes that, as a general matter, the structure was
stable and that the blocking was helping to support the structure. But it does not establish that
sufficient blocking was present to prevent failure once the raise was returned to use and the raise
structure was subject to normal operating forces, such as the forces that occur during a hangup.
A complete examination would have indicated whether all of the seven problems listed in
the orders of withdrawal were present. Although it appears that the ground was stable, Dynatec
did not really know this for a fact on August 6 because it did not attempt to examine the ground.
Dynatec failed to make a complete examination as required by the safety standard. The safety
standard requires an examination that is appropriate given the conditions present at the mine.
Examinations that were adequate before the raise structure settled were no longer adequate after
the structure settled. As the expert in raise construction, Dynatec was in position to know that a
more thorough examination was required under the standard.
Dynatec admits that it knew that the raise structure was under great stress and argues that,
because it already had that knowledge, a thorough examination was not required. I disagree. If a
mine operator knows that a particular entry at its mine has roof problems, it cannot decide that an
examination is unnecessary because it already knows that the roof is bad. The examination is
designed to pinpoint the problems so that they can be fixed before miners are exposed to the
hazards. Because Dynatec did not perform a complete examination of the raise structure and the
ground, the nature·and magnitude of the problems were not entirely known. The examinations
may have been able to identify areas where blocking had shifted, for example. Dynatec may have
been able to use a written report of such an examination to convince Magma Copper to shut
down the raise until permanent repairs were completed.
I do not base my holding on the fact that the raise structure subsequently failed nor am I
holding that the failure established a prima facie case for the Secretary. See Asarco, Inc., 14
FMSHRC 941, 946 (June 1992). Rather, I am holding that the examinations performed by
Dynatec were not comprehensive enough under the safety standard given the fact that the raise
structure settled eight to ten inches and Dynatec knew that this settlement posed a significant
safety hazard. Extensive examinations were required under section 57.3401 to pinpoint the
safety hazards, to help Dynatec decide whether the raise structure was safe to return to use, and,
if not, to provide specific information to Magma Copper so that it would be able to make an
informed decision as to the future use of the raise.

1084

3. Significant and Substantial Allegation
I find that the violations were S&S. The Secretary established the first two elements of
the Commission's S&S test. I find that an injury was reasonably likely given the facts described
above. The raise structure was on the verge of failure and once the raise was returned to
production it was reasonably likely that part of the raise would fail thereby killing or seriously
injuring any miners in the manway. As stated with respect to the previous orders, it was
reasonably likely that without rehabilitating the raise structure, a substantial failure of the
structure would occur resulting in an injury of a reasonably serious nature. The examinations
would have allowed Dynatec to more accurately identify problems in the raise structure so that
they could be corrected before miners were exposed to the hazards. Dynatec and Magma Coppei:
discussed the problems created by the settlement in terms of the longevity of the raise. A
complete examination may have been instrumental in highlighting the safety hazards.
4. Unwarrantable Failure Allegation
I find that the violations were the result ofDynatec's unwarrantable failure. The
examinations conducted by Dynatec after its luncheon discussions with Magma Copper
demonstrates a serious lack of reasonable care. It knew that extensive, permanent repairs were
necessary before the raise could withstand another hangup and blasting. It allowed its miners to
work in the manway despite the fact that it had not conducted examinations to check the integrity
of the blocking. If it had conducted such examinations and the examinations showed that
blocking was missing or crushed in a number of locations, the raise may have been closed before
the accident occurred. As stated above, Magma Copper's miners assigned to the raise were
inexperienced and Magma Copper's manager responsible for the raise was not fully aware of
hazards presented by the settlement. A thorough examination required by the standard may have
alerted Magrna Copper to the hazards presented.

G. Alleged Violations of30 C.F.R. § 57.18002(a)
On May I 0, 1994, MSHA inspector Jimmie Jones issued five orders under section
I 04(d)(l) of the Mine Act alleging violations of30 C.F.R. § 57.18002(a). The safety standard
provides:
A competent person designated by the operator shall examine each
working place at least once each shift for conditions which may
adversely affect safety or health. The operator shall promptly
initiate appropriate action to correct such conditions.
The five orders, Nos. 4410475 through 4410479, allege identical violations. Each order
covers a different shift between August 6 and August 9. For example, Order No. 4410475
alleges, in pertinent part:

1085

Adequate workplace examinations were not conducted iri the 865
raise on "B" shift, 8/6/93, in that conditions which adversely
affected the ... safety of the miners were not detected or corrected.
This violation is part of a practice of a failure to conduct adequate
examinations .t hat contributed to the failure of the raise on
8/10/93 ....
An adequate examination of the 865 raise workplaces and support
structure would have determined that: (1) structural conditions in
the raise were hazardous; (2) ladders had not been secured; (3)
timber, blocking, and cribbing had shifted; (4) armored cribbing
was dislodged and damaged in at least two areas between the ore
pass and manway compartment; and (5) ore and armored cribbing
pieces had fallen into the manway compartment.

During this period miners were regularly required to travel to work
places in the manway compartment for structural repairs and for
access to other levels.
l . Arguments
The Secretary states that the purpose for this safety standard is to ensure that conditions
which may adversely affect safety of miners are detected by a competent miner and are corrected
promptly. The Secretary labels the examination obligati~n as a fiduciary duty the operator has
for the safety of miners. She contends that Dynatec violated its obligation to find and correct the
hazardous settlement conditions which adversely affected the safety of miners assigned to work
in the raise.
The Secretary maintains that because of the unique nature of the raise structure,
Dynatec's examiners were not competent to examine the raise without the benefit of a "structural
engineering analysis of the raise." (S. Br. 66). She argues that Dynatec's managers continued to
allow and direct its employees to work in the raise despite their knowledge that the raise structure
was severely damaged and the repairs directed by Magma Copper were ineffective. The
Secretary states that the Dynatec examiners were "in over their heads." /d. "Without the benefit
of a structural engineering analysis, none of Dynatec' s agents had the ability, knowledge, and
experience necessary to be fully qualified to competently examine the Wlique work places in the
865 raise for conditions which adversely affected the health and safety of the miners.... " (S. Br.
66-67).
Dynatec argues that its examiners were fully competent to conduct the required
examinations. They had extensive experience in raise construction. Although the raise was
unusually large, it incorporated features that were common to other raises. For example,
birdcages had b_een used in other raises at the Magma Mine. Dynatec also contends that it
adequately examined the working places and the support structure. The quality of the

1086

examinations exceeded industry practice. MSHA's Program Policy Manual states that the safety
standard requires a visual inspection for hazards that are readily apparent. Dynatec contends that
its examinations exceeded the standard's requirements.
The quality of Dynatec's examinations is demonstrated by the fact that it identified all of
the hazardous conditions that existed in the 865 workplaces. The fact that the Secretary
disagrees with the conClusions it drew from its examinations is irrelevant. Dynatec's conclusion
that it was safe to perform the repair work until Magma Copper employees began blasting in the
ore pass is supported by the evidence. Dynatec also contends that a structural engineering
analysis was not required. First, the safety standard does not require an engineering analysis.
Second, the standard requires an examination of working places not support structures.
Finally, Dynatec contends that it did not violate the second sentence of the standard.
Dynatec employees were in the raise for one purpose: to repair the raise. Muck had been
removed from the manway and the hangup had been removed before August 6. The missing
cribbing had been replaced so additional muck would not spill into the manway. In addition, it
argues that Magma Copper had the obligation to pennanently repair the raise structure because it
was the owner of the mine. Dynatec could not pennanently repair the raise structure without
Magma Copper' s consent.
2. Discussion and Analysis
The Secretary's approach in her brief is not consistent with the allegations contained in
the orders. She stresses her argument that the Dynatec's examiners were not competent to
conduct the required examinations. She also argues that the safety standard required Dynatec to
conduct a '"structural engineering analysis of the raise." The orders at issue, however, alleged
that the examinations were not adequate. The competence of the examiners and the need for an
engineering analysis are not mentioned in the orders of withdrawal.
I find that the Secretary failed to establish that Dynatec' s examiners were not "competent
persons'' as that term is used in the safety standard. The examiners had many years of
experience. I agree with Dynatec that, although the raise structure was unusually large, its
features were not that unusual. The tP-stimony of Messrs. Spry and Spaulding establish that
Dynatec's examiners were competent persons under section 57.18002(a). In FMC Wyoming
Corp., 11 FMSHRC 1622, 1629 (September 1989), the Commission held that a competent
person within the meaning of sections 57.18002(a) and 57.2 is "a person capable of recognizing
hazards that are known by the operator to be present in a work area or the presence of which is
predictable in view of a reasonably prudent person familiar with the mining industry." Dynatec's
examiners were capable of recognizing hazards that were presented by the raise after it had
settled.
I also find that the safety standard did not require Dynatec to conduct a structural
engineering ana_lysis of the raise. Such an analysis is not within the scope of the examinations
required by the standard. That part of the Secretary's Program Policy Manual that discusses this

1087

standard states that the "word 'examine,' as used in the standard, means a visual inspection for
hazards that are readily apparent., As stated above in my discussion of the violations of section
57.3401, the requirements of examination standards are not fixed. The examinations required
before the raise structure settled would be less rigorous than examinations required after the
settlement. Nevertheless, the standard does not require a structural engineering analysis under
any circumstance. The Secretary's interpretation of section 57 .18002(a) to require such an
analysis is beyond the plain meaning of the standard and the Secretary's own written
interpretation. I find that the Secretary's interpretation is unreasonable and that it is not entitled
to deference.
Notwithstanding the above, I find that the Secretary established that Dynatec failed to
conduct adequate examinations of the raise structure. Under the facts of this case, adequate
examinations conducted under this standard would have revealed that the raise structure was in
danger of falling if the ore pass was loaded with muck. Although Dynatec conducted
examinations, they were not adequate to pinpoint the problems in the raise structure so that the
problems could be corrected before miners were exposed to the hazards.
In this particular instance, the examinations under this standard would have been the
same as the examinations required under section 57.340 I. The five enumerated items contained
in the orders issued under section 57.18002(a) are included in the seven items listed in the orders
issued under section 57.3401. An adequate examination under either standard would have
revealed the same hazards and the scope of the examinations would have been the same. For
example, after the raise structure settled, Dynatec was required to examine blocking for the raise
structure under section 57.18002(a) as well as under section 57.3401 to determine whether such
blocking was intact and performing its function of keeping the raise structure together. Missing
or dislodged blocking is a condition which would adversely affect the safety of miners. As under
section 57.340 r, the present standard required Dynatec to examine at least a representative
sample of the blo'cking at strategic locations.
The only enumerated item in the orders issued under section 57.18002(a) that is not
specifically mentioned in the previous orders is item number two concerning the condition of the
ladders in the man way. I find that Dynatec had noted the condition of the ladders and was in the
prvcess of repairing them at the time of the accident. (See for example Joint Exs. 112 and 126).
In the orders issued under section 57.3401, I found that the entire raise structure was required to
be examined under that section because it functioned as a ground support structure. Thus, an
examination of the ladders was required under section 57.3401, and the orders issued under that
standard included allegations involving the failure to examine the ladders.
The orders issued under section 57.18002(a) cover the same shifts as the orders issued
under section 57.1403, except that no section 57.18002(a) order was issued for the " B" shift on
August 10. Given my construction of the requirements of these standards and the orders issued
thereunder, I find that the orders issued under section 57.18002(a) are duplicative. Citations are
not duplicative as long as the standards involved impose separate and distinct duties on an
operator. Cyprus Tonopah Mining Corp., 15 FMSHRC 367,378 (March 1993). As applied in

1088

this case, I find that the two standards imposed identical duties on Dynatec. An adequate
examination under one standard would have revealed the same unsafe conditions as an adequate
examination under the other standard. The examination duties were the same. The Conunission
has recognized that standards may be duplicative as applied to particular facts at a mine. Western
Fuels-Utah, Inc., 19 FMSHRC 994, 1004-04 (June 1997). I am not holding that these two
standards would always duplicate each other but that under the facts of this case, the duty to
examine was the same.
Accordingly, the five orders issued under section 57.18002(a) are VACATED. Ifi had
found that the six orders issued under section 57.1403 were invalid, I would affirm the five
orders issued under section 57.18002(a) and hold that the orders were S&S and the result of
Dynatec's unwarrantable failure. Because the safety hazards were the same and the required
examinations were the same, my analysis would be the same under either standard.

H. Dynatec's Responsibility for Conditions in the Raise
Dynatec contends that it was inappropriately cited for Magma Copper's conduct.
Dynatec maintains that it did not own or control the raise and, as a consequence, it cannot be held
responsible for the failure to maintain and examine the raise structure. It argues that only Magma
Copper had the authority to determine what repairs were made and whether the raise would be
returned to service before the raise structure was rehabilitated. I agree that the final authority
rested with Magma Copper, but Dynatec was the expert in raise construction and it had the
obligation to impress upon Magma Copper the need to address the structural problems in the
raise structure before the ore pass was returned to production. Dynatec made suggestions at the
luncheon for Mr. Spry, but it did not advise Magma Copper how grave the situation was. As Mr.
Folinsbee stated, it was "obvious" that "extraordinary steps should have been taken at that time."
(Tr. 981) Dyna~ec did not take these extraordinary steps, which were particularly necessary
because Mr. K~egaard apparently did not understand the inherent danger. In settling its cases,
BHP Copper paid civil penalties of $800,000 for 46 citations and orders that were issued by
MSHA following the accident. The four safety standards cited in the present case were included
in the case against BHP Copper. I find that the Secretary did not abuse her discretion when she
cited both Magma Copper and Dynatec.

III. APPROPRlATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The parties stipulated that "Dynatec has a favorable history of
previous violations." (Stip. No. 11 submitted 2/1 0/98) . It appears that in the two years
preceding the accident, Dynatec had a history of 13 violations throughout the country. (Joint Ex.
150). Dynatec is a mid-sized independent contractor that worked about 61,960 man-hours at all
mines in the year preceding the civil penalty assessment. (Stip. No. 12). Dynatec exercised
good faith in abating the violative conditions by participating in the accident investigation and in
attempting to determine how to prevent a re-occurrence ofthe violations. (Stip. No.9). I find

1089

that the penalties assessed in this decision will have no effect on Dynatec's ability to continue in
business. (Joint Ex. 150; Stip. No. 12). Each citation and order that was affirmed was serious
and caused by Dynatec's high negligence.
Dynatec violated section 57.3360 as set forth in Citation No. 4410466. The Secretary
proposed a penalty of$50,000 under 30 C.F.R. § 100.5. I assess a penalty of$40,000 for this
violation. As stated above, I believe that Dynatec was highly negligent for not taking all
reasonable steps to ensure that the raise structure was safe before it was returned to production.
Nevertheless, I find its negligence was not as great as that asserted by the Secretary. Magma
Copper was resistant to Dynatec's suggestions for improving the safety of the raise and Magma
Copper's managers informally stated that hangups would not be blasted except as a last resort.
Dynatec believed that a permanent rehabilitation of the raise structure would commence later in
August. As stated above, it was unreasonable for Dynatec to rely on the informal assurances of
Magma Copper managers because they did not have the knowledge or skill to assess the danger
and it should have been reasonably foreseeable that Magma Copper would continue to fill the ore
pass and blast hangups. I have taken these facts into consideration in assessing the penalty.
Dynatec violated section 57.1101 as set forth in Order No. 4410468. The Secretary
proposed a penalty of$50,000 under 30 C.F.R. § 100.5. I assess a penalty of$20,000 for this
violation. I rejected the Secretary's contention that the raise structure presented an imminent
danger after it settled on or about August 3. I foWld that it was safe for Dynatec to make the
repairs set forth in Kannegaard's memorandum of August 5. (Joint Ex. 115). I found that safe
access was not provided to the raise structure after it was returned to production on August 9.
Dynatec removed its employees from the raise structure once it became clear that Magma Copper
was blasting in the ore pass. As a consequence, I significantly narrowed the scope of the order.
These tactors reduced the gravity of the violation and Dynatec's negligence. I have taken these
facts into consideration in assessing the penalty.
Dynatec vi.olated section 57.3401 as set forth in order Nos. 4410469 through 4410474.
The Secretary proposed a penalty of$50,000 for each of the six violations under 30 C.F.R.
§ 100.5. I assess a penalty of$5,000 for each violation. Dynatec conducted examinations of the
conditions inside the manway. Based on these examinations it reached conclusions as to what
needed to be done to rehabilitate the raise structure. It did not believe that the rock walls of the
raise were contributing to the stress placed on the raise structure. As stated above, these
examinations were not adequate to identify with certainty the specific hazards presented by the
raise structure. These factors reduce the gravity of the violations and Dynatec's negligence.

1090

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

30 C.F.R. §

Penalty

4410466
4410467
4410468
4410469
4410470
4410471
4410472
4410473
4410474
4410475
4410476
4410477
4410478
4410479

57.3360
57.3360
57.11001
57.3410
57.3410
57.3410
57.3410
57.3410
57.3410
57.18002(a)
57.18002(a)
57.18002(a)
57.18002(a)
57.l8002(a)

$40,000.00
Vacated
20,000.00 .
5,000.00
5,000.00
5,000.00
5,000.00
5,000.00
5,000.00
Vacated
Vacated
Vacated
Vacated
Vacated

Total Penalty

$90,000.00

Accordingly, the citation and orders listed above are hereby VACATED or AFFIRMED,
as set forth above, .and Dynatec Mining Corporation is ORDERED TO PAY the Secretary of
Labor the sum of$9.0,000.00 within 40 days of the date of · dec· · .

Richard W. Manning
Administrative Law Judge
Distribution:
Edward H. Fitch, IV, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203-1954 (Certified Mail)
C. Gregory Ruffennach, Esq., 450 East 3'd Avenue, Durango, CO 81301 (Certified Mail)

RWM

1091

Illustration No. 1

3600 TRACK LEVEl

3700 INTERMEDIATE LEVEL

37631NTERMEDIATE LEVEL

4000 TRACK LEVEL

The 865 Raise

1092

Illustration No . 2

Dimensions given in inches

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WALL PLATE (SHORT)

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HANGING WALL

FIGURE 10.- TIMBER FRAME, TOP VIEW
AFTER MAGMA DRAWING 53-1 -338 REV. 1 0

1093

Illustration No . 4

__l __
LAP

ARMOR
CRIB

ARMOR
10 X 10

POST

CRIB

Bird Cage and Divider Wall Detail

1095

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

SEP 2 5 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 97-192-M
A.C. No. 39-00993-05517

v.

Screener Plant No. 1

HIGMAN SAND & GRAVEL, INC.,
Respondent
DECISION
Appearances:

Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr, Sioux City, Iowa,
for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of penalty filed by the Secreta1y of
Labor. acting through the Mine Safety and Health Administration ("'MSHA"), against Higman
Sand and Gravel. Inc. ("Higman"), pursuant to sections l 05 and ll 0 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ g 15 and 820 (the "Mine Act"'). The petition alleges one
violation of the St:crctary's s::~fcty standards. 1\. hearing \vas held in Sioux City, lowa.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
S~..:reener Plant No. I (the "plant"') is in Union County. South Dakota. It is a small
operation that typically employees two individuals. One employee operates the pay loader. The
other employee, Mark Rasmussen, operates the screening plant. Higman uses a portable
generator as the source of electricity for the plant. This generator was purchased by Higman
during the 1980s and it has been used at this plant since the late 1980s. The generator is in a
covered trailer to protect it from the elements. This trailer is of the type that is attached to a
tractor for the transportation of goods over highways. The trailer has two sets of doors. The door
on the side of the trailer is equipped with stairs for access to the trailer and the controls for the
generator inside the trailer. The doors at the back of the trailer are opened to provide ventilation
for the generat~r when it is operating. The generator's large cooling fan exhausts out the back of
the trailer.

1096

The generator sits near the center of the trailer from side-to-side but is closer to the back
of the trailer than the front. The controls for the generator are at the end of the generator that is
near the front of the trailer. The control box for the plant is also in the front of the trailer. The
only person who regularly enters the generator trailer is·Mr. Rasmussen, who enters the trailer to
start the plant at the beginning of the shift, to shut down the plant at the end of the shift, and to
shut down the conveyors or the power in the event that major repairs are required.
On May 22, 1997, MSHA Inspector John R. King inspected the plant. During this
inspection he issued Citation No. 4644726 under section 104(a) of the Mine Act alleging a
violation of30 C.F.R.§ 56.14107(a). The condition or practice section of the citation states as
follows, in pertinent part:
The V-belt drives on the Caterpillar generator set ... in the power
generation van were not guarded. The unguarded belts were
approximately three feet from the throttle and three feet off the
deck. A trip, fall, or loose clothing could cause an employee to
come into contact with the unguarded pinch points on the V-belts.
Section 56.14 107(a) provides, in pertinent part, that "(m]oving machine parts shall be
guarded to protect persons from contacting gears, ... drive, head, tail, and takeup pulleys,
flywheels, ... and similar moving parts that can cause injury." Inspector King determined that the
violation was serious and of a signiticant and substantial nature ("S&S"). He also determined
that Higman's hegligcncc was moderate witll respect to this citation. The Secreta!)' proposes a
civil penalty of$128 for the alleged violation.
A.

Fact of violation

I find that the Secretary established a violation of section 56. I 41 07(a) in this case. The
belt drives at issi.1e were the type of moving machine parts that arc covered by the safety standard.
Unguarded V-be lt drives can cause injury to an employee working in the area. Loose clothing
can get caught between the belt and the drive and the employee can be pulled into the pinch
point. 1-1 igman contends that employees do not travel to the back or the trailer where the belt
drives arc located while the generator is operating. I find that the floor of the generator trailer is
a "\.val king or working surl~1cc:· as these terms arc used in section 56.14 I 07(b). While it may not
be the practice of Mr. Rasmussen to travel ncar the belt drives while the generator is operating.
the area is open to travel. It is likely that Mr. Rasmussen or another employee walked near these
belt drives while they were turning on at least one occasion. The drives are within seven feet nf a
walking or working surface and the exception set forth 1n section 56.141 07(b) does not apply.
The most logical construction of a guarding standard "imports the concepts of reasonable
possibility of contact and injury, including contact stemming from inadvertent stumbling or
fa lling, momentary inattention, or ordinary human carelessness." Thompson Brothers Coal Co..
Inc., 6 FMS HRC 2094, 2097 (September 1984). The construction of safety standards that
involve a min~r's behavior "cannot ignore the vagaries of human conduct." !d. In finding a

1097

violation, I have considered the "accessibility of the machine parts, work areas, ingress and
egress, [and employee] work duties." ld
Finally, the Mine Act imposes strict liability on a mine operator. See, e.g. Asarco v.
FMSHRC; 868 F.2d 1195 (lOth Cir. 1989). "[W]hen a violation of a mandatory safety standard
occurs in a mine, the operator is automatically assessed a civil penalty." /d. at 1197. The
Secretary is not required to prove that a violation creates a safety hazard, unless the safety
standard so provides..
The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [are] proper.

Allied Products Co., 666 F.2d 890, 892-93 (5'h Cir. l982)(footnote omitted). The negligence of
the operator and the degree of the hazard created by the violation are taken into consideration in
assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i).

B. Significant and Substantial Nature of the Violation
An S&S violation is described in section 104(d)(l) of the Mine Act as a violation "of
such nature as could signi ficantly and substantially contribute to the cause and effect of a ... 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.'' National Gypsum Co .. 3
FMSHRC' 822. 825 (April 1981 ). In Mathies Coal Co .. 6 FMSHRC I. 3-4 (January 1984). the
Comm ission s~t out a four-part test tor analyzing S&S issues. Evaluation of the criteria is made:!
assuming "~ontinucd normal mining operations." U..\'. Steel Mining Co .. 6 FMSHRC 1573, 1574
(Ju ly 1984). The question of whether a particular violation is S&S must be based on the
particular facts suJTOtmding the violation. Texas~u((. Inc., I 0 FMSHRC 498 (April I988).

-

In order to establish that a viol ation is S&S, the Secretary must establish: ( I) the
underlying violation of the satCty standard; (2) a discrete safety hazard. a measure of danger to
satety. contributed to by the violation: (3) a reasonable likelihood that the hai'.ard contributed to
\-viii result in an injury: and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

l find that the Secretary established the first two elements of this test. There was a
violation of the standard and a measure of danger to safety contributed to by the violation. The
issue is whether there was a reasonable like lihood that the hazard contributed to by the violation
will result in an injury. I find that the Secretary did not establish that an injury was reasonably
likely in this instance.

1098

In reaching the conclusion that an injury was not reasonably likely, I rely on a number of
factors. First, the only employee who regularly enters the trailer is Mr. Rasmussen. He enters
the trailer in the morning to start the generator and the conveyors and in the late afternoon to shut
down the conveyors and the generator. He estimates that he is in the trailer about ten minutes per
day. Occasionally, he enters the trailer in the middle of the day to shut down the conveyors and
the generator if the plant is shut down for repairs. He also enters the trailer on occasion to get oil
or grease that are stored at the front of the trailer. The generator is at the opposite end of the
trailer near the back. He enters and exits the trailer by walking up the metal steps at the door on
the side of the trailer. He does not enter the trailer through the back doors because the deck of
the trailer is four to five feet above the ground. The controls for the generator and the plant are
near the side door. The control box for the plant is about 15 feet from the belt drives and the
control panel for the generator is 10 to 12 feet from the belt drives. (Tr. 47, 71, 1 1.1). These
controls are not along the side of the generator adjacent to the belt drives.
When starting the generator Mr. Rasmussen checks to see if the throttle is properly
adjusted before he starts the generator. The throttle is within a few feet of the unguarded V -belt
drives. After he s tarts the generator, he turns on the conveyors and exits the trailer. There is no
need for Mr. Rasmussen or anyone else to walk to the back of the trailer while it is operating.
One cannot easily exit the trailer through the back doors. In addition, the noise of the generator
and the wind produced by the cooling fan make the back of the trailer an unpleasant place to exit.
Maintenance to the gener-ator is performed while it is shut down. For example, the fuel filter,
which is ncar the belt drives, cannot be changed except when the generator is off. There arc no
grease fittings ncar the V-belt drives. There are no stumbl ing hazards ncar the belt drives except
a set of small wooden blocks or wedges under the generator that stick out a I ittle. Although it
would h~ possible for someone to trip over these blocks, I lind that it is unlikely that anyone's
body or clothing would come in contact with the belt drives in such an event.
The Secrdary disputes Mr. Rasmussen ·s testimony that h<.: does not travel within seven
teet t)l' the belt drives while the generator is running. lnsp<.:ctor King tc.!stitied that Rasmussen
told him during the.! inspection that the belt drives should be guarded. ('l'r. 136; Ex. G-1 ). The
insper..:tor nlso testified that Rasmussen told him that he sometimes adjusts the throttle after h ~.:
has start~.:d the gl.!nera tor. (Tr. 53. 137-Jg). At the hearing, Mr. Rasmussen testified that he never
adjusts the throttle while the generator is running.
I lind that Mr. Rasmussen has adjusted the throttle after starting the generator, but that
this is u rare ~.:v~.:nl. The proper operating procedure for this generaiOr is to set the throtrlc bcf(m:
it is started. (l'r. 72-73). Mr. Higman testified that the person starting the generator '·would not
want to touch the throttle when it's running.'' (Tr. 74). Mr. Rasmussen stated that he has been
running this generator for Higman since it was ''brand new" and he knows from that experience
··exactly where to set the throttle" before he starts the generator. (Tr. 119). I credit this
·
statement. Rasmussen does not readjust the throttle while the generator is operating except in
extraordinary circumstances. Thus, his exposure to the moving bell drives was not very
signiticant. The control panel is at one end of the generator, the belt drives are near the opposite
end, and the throttle is close to the belt drives in between. It is unlikely that his clothing or body

1099

would come into contact with the pinch points if he stumbled. The Secretary argues that because
the doors to the trailer were open, the floor could be wet and present a slipping hazard. I find
that the floor would not usually be wet because the ventilation produced by the fan would quickly
dry out the trailer. In addition, the floor was grooved, which would tend to make the floor less
slippery.
As a general matter, I believe that unguarded moving machine parts present a significant
and substantial hazard to employees. In this case, however, I find that an injury was not
reasonably likely. Although I find that the floor throughout the trailer was open for travel and
constituted a walking or working surface, the floor near the belt drives was not generally used as
a travelway or a working surface while the generator was operating. I recognize that Rasmussen
may have occasionally traveled near the belt drives while the generator was operating. · I find,
however, that his exposure was insignificant and that an injury was highly unlikely, taking into
consideration continued normal mining operations and the unpredictable nature of human
conduct. Inspector King stated that a guarding violation may not be S&S if"an individual is
seldom, if ever, in the particular area." (Tr. 26). Mr. Rasmussen was the only person who
entered the trailer on a regular basis, he was only in the trailer about ten minutes a day, and he
rarely walked within ten feet of the unguarded belt drives while the drives were operating.
I find that the Secretary established the fourth element of the Mathies test because if an
injury were to occur, the injury would be of a reasonably serious nature. Accordingly, I hold that
the violation was not S&S because the hazard contributed to by the violation was not reasonably
likely to result in an injury.

II. APPROPRIATE CIVIL PENALTY
Section 1-IO(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. 1 find that eleven citations were issued at the Screener Plant No. 1
between May 1995 and May 1997. (Ex. G-5). The plant is a small facility that employed two
miners and worked 3.602 man-hours in 1997. Higman is a small opcmtor that worked 9.510
man-hours in 1997. The violation was rapidly abated. The penalty assessed in this decision will
not have an adverse effect on Higman's abili ty to continue in business. Although the violation
was not S&S, I lind that it created <fniodcratdy serious safety hazard. !Iigman's negligence \·Vas
moderate. Although the generator had been inspected by MSHA on a number of occasions and
the belt drives had never been cited, Higman had received three citations for unguarded moving
machine parts in the two years preceding the date of the citation at issue. (Ex. G-5: Higman SanJ
and Gravel. Inc., 18 FMSHRC 95 l (June l996)(ALJ)). Thus, Higman was on notice that
guarding was required for moving machine parts. Based on the penalty criteria. I find that a
penalty of $100.00 is appropriate for this violation.

1100

III. ORDER
Accordingly; Citation No. 4644726 is AFFmMED as modified above and Higman Sand
and Gravel, Inc., is ORDERED TO PAY the Secretary ofLabor the sum of$100.00 within 40
days of the date of this decision.

Richard W. Manning
Administrative Law Judge

Distribution :
Mark W. Nelson, Esq., Oftice of the Solicitor, U.S. Department of Labor. 1999l3roadway. Suite
1600, 01-!nvcr. CO 80202-5716 (Cc11ilicd Mail)
Jeffrey A. Sar. Esq .. Baron. St~r. Goodwin, Gill & Lohr. P.O. Box 717. Sioux City. lA 51102
(Certified Mail)

RWM

1101

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

SEP ·3'0·1998.
'·

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 94-23
A.C. No. 36-04566-03980

V.

Emerald No. I
CYPRUS EMERALD RESOURCES, INC.,
Respondent

DECISION ON REMAND APPROVING SETTLEMENT
Before:

Judge Hodgdon

On August 24, 1998, the Commission issued a decision in this case vacating the judge's
conclusion as to Order No. 3658698 "that Emerald violated section 77 .1608(b) in December
1992," and remanded it "for reanalysis [sic] and, if necessary, S&S and unwarrantable
determinations." Cyprus Emerald Resources Corp., Docket No. PENN 94-23, slip op. at 31
(August 24, 1998). 1 The Secretary, by counsel, has filed a motion to approve a settlement
agreement with regard to the order.
Modification of Order No. 3658698 from a 104(d)(l) order, 30 U.S.C. § 814(d)(l}, to a
104(a) citation, 30 U.S.C. § 814(a), by deleting the "unwarrantable failure" designation and a
reduction in penalty from $8,200.00 to $6,000.00 are proposed. Having considered the
representations and documentation submitted, I conclude that the proffered settlement is
appropriate under the criteria set forth in section l l O(i) of the Act, 30 U.S.C. § 820(i).
Accordingly, the motion for approval of settlement is GRANTED, Order No. 3658698 is
MODIFIED as indicated and the Respondent is ORDERED TO PAY a penalty of $6,000.00
within 30 days of the date of this·order.

~if!!~

Administrative Law Judge

1

Forthcoirung as Cyprus Emerald Resources Corp., 20 FMSHRC 790 (August 1998).

1102

Distribution:
Myrna A. Butkovitz, Esq., Office ofthe Solicitor, U.S. Department of Labor, Room 14480
Gateway Building, 3535 Market Street, Philadelphia, PA 19104 (Certified ~ail)
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant Street, 201h Floor,
Pittsburgh, PA 15219-1410 (Certified Mail)

/fb

1103

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #2BQ
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
.
.
September 30, 1998

DISCRIMINATION PROCEEDING

PAMELA BRIDGE PERO,
Complainant

Docket No. WEST 97-1 54-D
DENV CD 96-21

v.

Star Point No. 2
Mine ID 42-00171

CYPRUS PLATEAU MINING CORP.,
Respondent

DECISION
Appearances: L. Zane Gill, Esq., Salt Lake City, Utah,
for Complainant;
Matthew McNulty, Esq., Mara Brown, Esq.,
Salt Lake City, Utah,
for Respondent.
Before:

Judge Cetti

This proceeding was initiated by a complaint filed by Pamela Bridge Pero (hereinafter
"Pero") under.the provisions of Section 105(c)(3) ofthe Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 802 el seq., the "Act," 1

Section lOS(c) (l)of the Act provides as follows:
No person shall discharge or in any manner
discriminate against or cause to be
discharged or cause discrimination against or
otherwise interfere with the exercise of the
statutory rights of any miner, repres entative
of miners or applicant for employment in any
coal or other mine subject to this Act
because such miner, representative of miners
or applicant for employment, has filed or
made a complaint under the related to this
Act, including a complaint notifying the
operator or the operator's agent, or the
representative of the miners at the coal or
other mine of an alleged danger or safety or

1104

Pero initially filed her complaint with the Mine Safety and Health Administration
(MSHA) at its Price, U~ field office on September 12, 1996. In this first complaint Pero
stated she was employed as a "Human Resource Assistant" and she listed the person responsible
for the discriminatory action as Louis Grako, Human Relations Manager, and Keith Seiber, a
previous vice-president and general manager of Cyprus Plateau Mining Corp. Pero' s allegation
of the discriminatory action in her complaint filed with MSHA reads as follows:
My employment was terminated on September 11, 1996. I feel this
was done because over the course of the past 2-3 months, I have
expressed to mine management personnel, the fact that dishonest
acts have been executed by Mr. Grako (under the direction of Mr.
Seiber for the past 1 ~years.) I feel this was retaliation for
"whistle blowing."
MSHA conducted an investigation of Ms. Pero's complaint and by letter dated March 18,
1997, advised her that on the basis of the information gathered during the course of its
investigation, a violation of Section I 05(c) of the Act had not occurred. The letter in pertinent
part reads as follows:
Re: Results of Discrimination Investigation
Case Number DENY -CD-96-21
Dear Ms. Pero:
Your complaint of discrimination under Section I 05(c) of the
Federal Mine Safety and Health Act of 1977 has been investigated
by a special investigator of the Mine Safety and Health
Administration (MSHA).

health violation in a coal or other mine or
because such miner, representative of miners
or applicant for employment is the subject of
medical evaluations and potential transfer
under a standard published pursuant to
section 101 or because such representative of
miners or applicant for employment has
instituted or caused to be instituted any
proceedings under or related to this Act or
has testified or is about to testify in any
such proceeding, or because of the exercise
by such miner, representative or miners or
applicant for employment on behalf of himself
or of any statutory right afforded by this
Act.

1105

A review of the information gathered during the investigation has
been made. On the basis of that review, MSHA.has determined
that a violation of Section lOS(c) of the Act has not occurred.
If you should disagree with MSHA's determination, you have the
right to pursue your action and file a complaint on your own behalf
with the Federal Mine Safety and Health Review Commission.
Ms. Pero disagreed with MSHA's determination and on May 30, 1997, filed a complaint
on her own behalf with the Cpmmission under § 105(c)(3) of the Act..
I
Stipulations
I accept the following stipulations that the parties entered into the record.
1. Cyprus owns and operates the underground coal mine
known as Star Point No. 2

2. Ms. Perc was an employee of Cyprus at the time she was
terminated.

3. Ms. Perc was tetminated effective September 11, 1996.

4. Ms. Perc's rate of compensation at the time she was
terminated are not in dispute.

11
Applicable Law
It is well settled law that a miner seeking to establish a prima facie case of discrimination
under Section 105(c) of the Act bears the burden of proof that he engaged in protected activity
and that the adverse action complained of was motivated in any part by that protected activity.
Secretary on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October
1980) rev' d on grounds, sub nom. Consolidation Coal Co., v. Marshall, 663 F2d 1211 (3'd
Cir. l 981 )~and Secretary on behalfof Robinette v. United Coal Co., 3 FMSHRC 803, 817-18
(April 1981 ). The operator may rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part motivated by the protected activity. If
an operator cannot rebut the prima facie case in this manner, it may nevertheless defend
affirmatively by proving that it would have taken the adverse action in any event on the basis of
the miner's unprotected activity alone. Pasula, supra; Robinette, supra. See also Eastern Assoc.

1106

Coal Corp. v. FMSHRC, 813 F.2d 639,642 (4th Cir. 1987); Donovan v. Stafford Construction
Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th
Cir.1983) (specifically approving the Commission's Pasula-Robinette test). Cf. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical
test under National Labor Relations Act).

Ms. Pero was employed by Plateau Mining Corporation in the Human Resources
Department during all relevant times. She started as a receptionist and then started working half
a day in Human Resources Department (H.R.) and later commenced working there full-time with
typing and other secretarial and clerical duties.
The Human Resources Department consisted of four people. Pero testified that the
people in the Human Relations Department took "over some of the clerical side of safety." They
also did typing for the engineers and "ran the switchboard." Pero in addition to running the
switchboard helped with "the filing and typing of forms" for on the job injuries and worker's
compensation claims. Pero states "all the forms had to be sent to the state of Utah and "only a
few had to be sent to MSHA." Pero testified her clerical duties included typing worker's
compensation forms and typing of some of the MSHA 7000-1 forms. She states that her
immediate supervisor, Louis Grako, instructed her to contact employees injured on the job to see
if it was possible to get the miner to come back to work without loss time so as to avoid having
to report a lost time injury. The miners got a bond each month if they had no loss time injuries
during that month. Ms. Pero testified that as she talked to her brother who was the safety director
at a rival or "competing mine" and talked to other safety people, she started "to get a feel that
some of the things that had been past practice weren't right." She stated she didn't feel
comfortable with the practice of permitting or encouraging injured employees to take a "doctors
day off' be~ause there were medical facilities for them to go to. On further reading on the matter
and talking to her brother who was the safety director at a competing mine, she determined that
the employees injured on the job should not be taking "a doctors day off."
From the time she was hired until she was terminated (II years) Pero received only
satisfactory or better performance reviews and never received any form of discipline prior to May
1996. However, she did receive a demotion from Human Resources Assistant II to Human
Resources Assistant I. Pero attributes that demotiou to the fact that she fi led a sexual harassment
complaint against her supervisor, Keith Seiber, who was Respondents vice-president and general
manager (VPGM) at the time. Her sexual harassment lawsuit was dismissed by the Federal
District Court in early 1995. It is claimant's contention that management's attitude towards her
turned negative as a result of her unsuccessful harassment complaint. (Tr. 79, 83, 84, Complainant's Briefp. 5). This was also the perception of her co-worker Ms. Tucker who testified to
the same effect. Asked by her counsel on direct examination to give some specifics, Pero
testified as follows:

1107

If(Keith Seiber) wanted me to do something, he told someone else
to have me do it. He directed, I feel, Mr. Grako, to put me back on
the switchboard, take my work away and not give me raises. That
all came into it there. Any little thing I did, Lou was writing it
down. He was making a big deal out of it, and I felt that came
from Keith.

Q. What was your mind between Mr. Grako and Mr. Seiber?

A. They were bed partners from the beginning. I felt Mr. Seiber
hired Mr. Grako to go in and clean house or do whatever with
anybody he wanted to get rid of. Everyone around the mine
felt like he was the hatchet man. That's my perception; that's
really strongly what I felt.
Q. So you perceived what you believed to have what actions
taken against you to try to take away your job responsibilities?

A. Yes.
Q. To freeze your salary?
A. Yes.
Q. Did you understand why that was happening?

A. No. I just felt like- you had to be part of their team up
there. There were people that were and people that
weren't, and I wasn' t.

Q. ~kay. When did you first start becoming concerned
about safety issues, things that were being done that
you thought were either illegal or against regulations?
When did you ·first start becoming concerned about that?

A. I think it took me a while. I didn' t have any training
on the job. I didn't have anybody tell me what was
legal and what wasn't legal. I was told to go in and
look at the forms, see how Gayle had done them, and
do them the same way. And I think it took me months
to realize and start researching everything that I needed
to know before I felt comfortable with what people had
marked on the claims on the workers' accident reports.

1108

. But as I talked to the safety people and as I called Rhys
Llewelyn who wrote the book and as I talked to my
brother, I started to get a feel that some of the things
we were doing that had been past practice weren't right.
(Tr. 84-85).
Pero discussed her views about the proper way to fill out the worker's compensation
claims, related forms and reports for on the job injuries with her supervisor, Mr. Gralco. She
testified that sometimes Mr. Grako agreed with her and sometimes he did not. At other times he
told her he would have to check further with others and then get back to her. (Tr. 91). Pero also
attempted to convey her concerns about these and other matters with Mr. Grako's boss, Allen
Childs, who was the Respondent's new vice-president and general manager at the time. Mr.
Childs testified that Pero talked about alleged illegal reporting but never mentioned MSHA's
7000-l form or 7000-1 reporting. (Tr. 472-479).
Asked as to the "scope of her complaints" on direct examination by her counsel Pero
testified as follows:

Q. What was the scope of the things that you were complaining
about?
A. The lack of trust in the department, the way we were treated

by Mr. Grako. If we did the least little thing wrong, that was
blown into a big, major thing. We were reprimanded for things
that we didn' t think we had even done. All of us were feeling
that way.
There were sexual harassment problems, there was a big list of
things. ....
Q. Did you at some point sense that you were getting in trouble for
your complaints?
A. Yes, I did. .
Q. When did you first sense that?
A. I think it started happening in April, and I think what happened
was, when we talked to- well, can I give you an example of one?

Q. Certainly.
A. One problem I had was with the way we hired our summer

1109

students. I had been approached by all the people, saying,
"This is no longer a program for everybody's kids. It's just the
salaried employees' kids." ·
So, in passing one day, I mentioned it to Mr. Childs. So,
he asked me to come into his office and we discussed it.
And, I said, "It has become the salary students' program.
We .d on't have any hourly people's children workin~."
He said, "Would you please get me some numbers?
I got the numbers together, and it was like four to one.
And, I said, "You know, to be fair to all of our employees,
we need to make this 50/50."
He said, "I agree." And he talked. to Mr. Grako.
I think when he started talking to Mr. Grako about my
complaints, Lou (Grako) knew we were talking. Then,
he talked about Kim's complaints, and he would go talk
to Lou. He (Grako) knew- he started knowing that we
were going above him to the VPMG with our problems.
That's when I felt him change. He got quiet with me;
he got very secretive.
All of us girls noticed him listening outside the door, and
he would stand and stare at us if we talked when he thought
we were talking about something. We got really scared;
· we all got really scared.
So, what happened was, we all quit talking because we
could see that he was going to come back on us for
what we said.
And that continued for a month or two period until I left
for my surgery. But I told Alan repeatedly that I was scared.

Q. So your first contact with Alan Childs about your concerns
was probably early April of 1996?
A. Yes. He quit involving me in all of the discussions about
Worker's Comp. (Tr. 135-137).

1110

IV
Respondent's Three-Step Disciplinary Procedure
It was undisputed that Cyprus at all relevant times had in place a progressive employee
disciplinary policy. This procedure is set forth in their employees handbook given to every
employee. Under this policy there is a well established three-step disciplinary procedure. (Tr.
139). The evidence presented established that Pero was disciplined and eventually discharged
when she exhausted the Cyprus progressive three-step disciplinary procedure.
Step 1 discipline resulted when Pero signed (forged) the name of her supervisor Louis
Grako on two dinner certificates, one for herself and one for her husband. The one for herself
may have been given to her but not the one for her husband. This written Step one reminder
given to Pero in May 1996 states in part:
At the conclusion of our meeting, I advised you that you were to
take the next day off with pay, April 30'\ and come back the next
day with a written action plan and commitment of how you can
build trust and credibility with me and within our department. This
is essential in any human resources organization.
Regardless of the possibility that I may have given you one dinner
certificate, the other certificate was unauthorized and you signed
my name to both certificates without authorization. I'm requesting
that you bring in all the certificates you have for my review and
approval. Dishonesty, including falsifying of my name and theft of
Company property is a serious violation of our Guidelines for
Appropriate Conduct.
As we discussed in our meeting, because of your serious
misconduct I'm giving you this documented Yeral Reminder, Step
1 and placing it in your personnel file.
Pam, you must take immediate measures to improve your attitude
and trust toward the Company and myself. The Company will not
tolerate this type of behavior on your part or on the part of any
employee. The Action Plan you provided me did not address the
trust issue but totally evaded the real issue, I'm directing you to
revise your commitment. I would like your commitment by
Monday, May 6, 1996.
This letter should make it abundantly clear to you that if you fail to
.live up to your commitment and abide by company rules, you will

1111

subject yourself to further disciplinary action up to and including
termination ...
On July 25, 1996, Pero was given a Step 2 written reminder which in pertinent part states:
On May 6, 1996, you were issued a Verbal Reminder following a
conversation concerning dishonesty, which involved using my
name without authority. At that time you had assured me that you
would stop distrustful behavior and be a team player.
Unfortunately, we had another recent incident where you failed to
properly inform me that you were going to have surgery and
possibly be away from work for an extended period of time. In our
telephone conversation on June 12th I had to make assumptions to
figure out that you were going to be gone from work. I asked you
in that same telephone conversation why you did not let me know
ahead of time that you would be away from work. Your response
was that you wrote me a note and you thought I would not be back
from Denver until Friday, June 141h. In our meeting on June 14'h
you told me that the reason you wrote me a letter, dated June 10,
1996 is that I was not available for you to talk to . I stressed my
dissatisfaction with the way you handled the whole process.
On June 26'\ after you returned to work we had another discussion
concerning the above mentioned incident and your failure to use
the interview rating sheets, as I instructed you to do so in the past.
. Further, we discussed other work performance problems such as
your failure to change the shot-term (sic) disability forms, etc.
You explained that you had let Allen know that you were going to
have surgery two months ago and as far as the interview sheets and
short-term disability forms were concerned you said you did not
have time to complete the interview sheets or make changes in the
STD forms. I explained that I was available all during the week of
June 3rd and was at work all day Friday, June 7'h and I'm available
to you on a regular basis. At the conclusion of our meeting, I
advised you that because of the seriousness of your behavior in
failing to give pr:oper notice of your absence from work and your
recent unacceptable work performance I'm giving you this Written
Reminder, Step 2 of our Corrective Action Policy. Pam, I want to
make it abundantly clear that I will not tolerate this type of
behavior by you or any other employee. Further, as I explained to
you Human Resources employees are held to a high standard of
h~nesty and integrity. You must take immediate measures to

1112

significantly improve your work performance and your attitude
toward me, because I am responsible for your performance and
conduct. If you are going to be away from work for any period of
time which includes qualified Short-Term or Long-Term Disability
you need to follow those policy guidelines, which include
informing me on a regular basis of your progress. This includes
periodic medical reports from your doctor. This is something you
have not done in the past Should you fail to immediately improve
your conduct and performance, you will subject yourself to further
disciplinary action up to and including termination. I will no
longer accept your excuses. Also, it's unfortunate you can not
make a commitment to change. I encourage you to make a change
and I'm here to help.
The third and final disciplinary step which resulted in termination On September 11,
1996, was a letter signed by Allen P. Childs, Vice-President, General Manager as follows:
RE:

Notice of termination of Employment

Dear Mrs. Pero,
As you are aware your employment with Cyprus Plateau Mining Company
("Cyprus") was terminated effective September 11, 1996. Further, since May
1996 you have been disciplined for violation of company rules, and have been
given both verbal and written warnings regarding those violations. Copies of the
written warnings were earlier provided to you. However, as you requested on
_Sept~mber 11, 1996, copies of the warnings are enclosed with this letter.
The decision to move you to the final step of the disciplinary process and
terminate your employment at Cyprus is based upon several factors, including,
without limitation, the following:
1.
In May 1996 you were sent to Denver to be trained in the new Health and
Safety Reporting System ("HSRS"). You were given very specific instructions
regarding implementation of this program at Cyprus, and you were instructed to
inform Jack Trackemas about how the system should operate. You were trained
for several days at significant expense to Cyprus in airfare, meals, lodging and
incidentals.
Unfortunately, you failed to carry out your instructions to assist in
program implementation. In early July, Mr. Michael R. Peelish determined that
you had not done any work on the HSRS, nor had you followed up with Mr.

1113

Trackemas. Consequently, the Cyprus program was delayed for approximately
seven weeks. This type of neglect did not occur at any other facility.
2.
Cyprus has also recently learned of unsatisfactory work performance by
you in connection with the completion of I9 immigration forms. On or about
September 4, 1996, during an OFCCP site audit, the auditor reviewed the 19 file
maintained by you. The auditor discovered that a very significant percentage of
the 19s were filled out incompletely and/or improperly. This could result in
substantial fines to Cyprus, and has already required work time to remedy these
numerous mistakes.
As an experienced human resources representative, you should be totally
familiar with the 19 form, which is relatively simple to fill out. It was part of your
responsibility in new employee orientation to insure that these forms were
completely and accurately filled out. You were specifically informed by Mr.
Grako prior to the OFCCP audit to review the 19 forms and insure they were in
proper order. Prior to taking leave you evidently enlisted the aid of a coemployee in order to secure information necessary to complete certain of these
forms. It appears, however, that these forms were in such disorder that they could
not be corrected prior to the OFCCP audit. You were directly responsible for this
matter.
3.
Cyprus has recently learned that you have made verbal representations to
various individuals, boih employees and non-employees of Cyprus, that your
supervisor, Lou Grako and Cyprus have committed illegal acts in the handling of
the workers compensation claims of Clifford Snow and Alvin Rogers. You did
not, however, make a written report to this effect nor did you report such acts to
your supervisors. Nevertheless, an investigation was undertaken both internally
and outside the company. Cyprus interviewed outside personnel involved in the
administration of its workers compensation claims, including the claims adjuster
and branch manager of Scott Wetzel Services and outside legal counsel
responsible for handling workers compensation matters. Cyprus has determined
that the claims process employed in the above-referenced claims was not only
consistent with Utah Law, but in fact one of the claims was approved by an
Administrative Law Judge of the Utah Industrial Commission.
Since your duties at Cyprus include claims processing, your apparent
misunderstanding of processing and your wrongful accusation of mishandling of
claims is particularly troublesome. More importantly, Cyprus confirmed during
this investigatory process that you made disparaging remarks about Lou Grako' s
handling of workers compensation claims to co-workers and directly to nonemployees of Cyprus, including Scott Wetzell's branch manager. Your baseless
and wrongful accusations of misconduct on the part of Mr. Grako appear to be

1114

personally motivated, and your defamatory remarks to non-employees was
completely inappropriate. Further, your baseless accusations resulted in a costly,
time consuming and totally unnecessary investigation.
It is also clear that you are unable and/or unwilling to work harmoniously
with your supervisor, Mr. Lou Grako. You do not communicate effectively with
Mr. Grako, you have made a concerted effort to undermine his authority with coworkers and other employees of Cyprus, and you are desirous of having Mr.
Grako tenhinated or transferred. While you are certainly free to register
complaints about your supervisor directly to him or, pursuant to company policy,
to the mine manager or others, you evidently have not been content with the
response to complaints and have continued to disrupt the effective operations of
the human resources department.
In an effort to preserve your employment, Cyprus attempted
approximately two months ago to find another position for you within the
company. That effort was unsuccessful, due largely to the unwillingness of other
supervisors to accept you as an employee in their departments. Since that time,
Cyprus has received further information that compels this decision to terminate
rather than transfer your employment.
You are hereby advised that pursuant to company policy, you have the
right to arbitrate this decision. A copy of the relevant portions of Cyprus' policy
manual are attached hereto for your review.
Moreover, under the open door policy of Cyprus, you may respond to
these. allegations by contacting me or as otherwise indicated by company policy. I
have also.attached hereto a copy of the open door policy as it relates to this
situation . .
A separate notice will be provided to you regarding the treatment of
benefits upon termination of employment. If you have any other questions or
concerns, please contact me at your convenience.
Very truly yours,

lsi
Allen P. Childs
Vice President, General Manager
cc: Mr. Lou Grako
Mr. Don Eckstein
enclosures

1115

Mr. Childs testified the termination notice was prepareq in the corporate office in Denver.
Mr. Childs agreed with it and signed it. The notice was prepared by Mr. Baron who heads the
Human Relations department in the corporate office and Mr. Eckstein who went to the mine in
question to do an evaluation and investigation of the allegations. (Tr. 457). On the basis of the
evidence before me I find that none ofPero's complaints in anyway involved her own safety.
Certainly in her original complaint filed with MSHA there is no mention of any safety concerns
for herself or anyone else. It only suggests a ,strong desire to "blow the whistle" on her
supervisor, Lou Grako;whom she disliked and ·described in her testimony as a "hatchet man"
who made her and all the employees fear for their jobs. At the hearing Pero did make a self
serving statement of her concern for the safety of men injured on the job coming to work to take
advantage of the benefit of the so called "doctors day-off' practice and continuing to receive full
pay for less than a full days of light or restricted work. On the record before me I ain unable to
credit the sincerity or reasonableness of her safety concerns. Nevertheless, I am assuming
arguendo that Pero engaged in protected activity. I fmd that the preponderance of the evidence
established that Pero was discharged for her unprotected activity alone. The reasons for her
discharge stated in the Notice of Termination of Employment are not a pretext and are supported
by the record.
In Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-2519
(November 1981), rev's on other grounds sub nom. the Commission stated:
The Commission and its judges have neither the statutory charter
nor the specialized expertise to sit as a super grievance or ·
arbitration board meting out industrial equity. {;[Youngstown
Mines Corp., 1 FMSHRC 990,994 (1979). Once it appears that a
proffered business justification is not plainly incredible or
implausible, a finding of pretext is inappropriate. We and our
· ju~ges should not substitute for the operator's business judgment
our :views of "good" business practice or on whether a particular
adverse action was "just" or "wise." Cf. NLRB v. Eastern Smelling
& Refining Corp., 598 F.2d 666, ( l st Cir. 1979)..... The question,
however, is not whether such ajustification comports with judge's
or our sense of fa~ess or enlightened business practices. Rather,
the narrow statutory question is whether the reason was enough to
have legitimately moved that the operator to have disciplined the
miner. Cf. R-W Service System Inc. 243 NLRB 1202, 1203-04
(1979) (articulating an analogous standard).

DISCUSSION AND CONCLUSION
The issue in this case is not whether the adverse action was just or wise or comported
with my sense of fairness or enlightened business practice.

1116

The record clearly demonstrates that the reasons given by the employer for the adverse
action were not "plainly incredible or implausible." I conclude and find that the stated reasons
for the adverse action taken by Cyprus were not pretextual.
While it is assumed for purposes of this decision that Pero engaged in protected ac~ivity, I
find that Cyprus in terminating Pero's employment was motivated by Pero's unprotected activity
and would have taken the adverse action in any event on the basis ofPero's unprotected activity
alone. I therefore find that discharge ofPero was not in violation of Section lOS(c) of the Act.
The record, as a whole, satisfactorily demonstrates a business justification for Ms. Pero •s
discharge.

CONCLUSION OF LAW
1. Cyprus did not violate Section 105(c) of the Federal Mine Safety and Health Act of
1977 ("the Act"), 30 U.S.C. § 815(c) in discharging Pero in September 1996.

2. Any protected activity that Ms. Pero engaged in did not in any part motivate her
discharge.
3. Even if the discharge of Ms. Pero were motivated in any part by the fact that she
engaged in protected activity, she would have been discharged for unprotected activity alone.

ORDER
This case is DISMISSED.

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Administrative Law Judge
Distribution:
L. Zane Gill, Esq., L. ZANE GILL, P.C., 1926 East 3900 South, Salt Lake City, UT 84124-3262
(Certified Mail)
Matthew F. McNulty, III, Esq., VANCOTT, BAGLEY, CORNWALL & McCARTHY, 50
South Main St., Suite 1600, Salt Lake City, UT 84 I 45 (Certified Mail)
Ish

1117 -A-U.S. GOVERNMENT PRINilNG OfFICE:l998-414-62<W94409

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