AUGUST 2000

COMMISSION DECISIQNS AND ORDERS
08-03-2000 Sterling Sand & Gravel Company
08-09-2000 Georges Colliers, Incorporated
08-23-2000 Earl Begley employed by Manalapan Mining
08-30-2000 David Morales v. Asarco, Inc.

CENT 99-310-M
CENT 2000-299
KENT99-233
WEST 99-188-DM

Pg. 935
Pg. 939
Pg. 943
Pg.947

ADMINISTRATNE LAW JUDGE DECISIONS
08-01-2000 Sec. Labor on behalf of Leonard M. Bemardyn v.
Reading Anthracite Company (corrected version) PENN 99-158-D
08-03-2000 Franklin Industrial Minerals (corrected version)
SE 99-244-M
08-04-2000 Sec. Labor on behalf of Dwayne Hemenway and
LAKE 2000-41-DM
others v. Hibbing Taconite Company
08-08-2000 Sec. Labor on behalf of Roger D. Damron, II v.
Tri.:.County Mining, Inc.
WEVA 2000-81-D
08-18-2000 Portable Rock Production Co., Inc.
WEST 99-309-M
08-23-2000 Alta Gold Company
WEST 98-373-M
08-23-2000 RAG Cumberland Resources, LP
PENN 99-195-R
08-28-2000 Sec. Labor on bhelaf of Curtis Stahl v.
WEST 2000-242-DM
A & K Earth Movers, Inc.
08-31-2000 Eastern Associated Coal Corporation
WEVA 2000-98-R
08-31-2000 Weathers Crushing, Inc.
WEST 99-19-M

Pg. 951
Pg. 957
Pg. 969
Pg. 971
Pg. 973
Pg. 980
Pg. 994
Pg. 1011
Pg. 1020
Pg. 1032

ADMINISTRATIVE LAW JUDGE ORDERS
08-02-2000 Darwin Stratton & Son Inc.
08-10-2000 Sec. Labor on behalf of Curtis Stahl v.
A & K Earth Movers, Inc.

i

WEST 2000-371-RM

Pg. 1044

WEST 2000-242-DM

Pg. 1048

..

~

~·.

AUGUST

2000

Review was granted in the following cases during the month of August:

Central Sand and Gravel Company v. Secretary of Labor, MSHA, Docket Nos.
CENT 98-230-RM, CENT 99-242-M (Chief Judge Barbour, June 30, 2000)
Eagle Energy, Incorporated v. Secretary of Labor, MSHA, Docket Nos.
WEVA 98-72-R, WEVA 98-73-R, WEVA 98-123 (Judge Feldman, July 12, 2000)

Review was denied in the following case during the month of August:

Secretary of Labor, MSHA v. Earl Begley, employed by Manalapan Mining Company,
Docket No. KENT 99-233. (Reconsideration of a denial of a Petition for Discretionary
Review issued May 30, 2000.)

ii

.·:

\·:~

·:..
... :

COMMISSION DECISIONS AND ORDERS

r :·

:·

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

August 3, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 99-310-M

v.
STERLING SAND & GRAVEL COMPANY

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

ORDER
BY: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
This civil penalty proceeding "arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On September 20, 1999, the Secretary of
Labor filed a petition for assessment of civil penalty against Sterling Sand & Gravel Co.
("Sterling,,), a subsidiary of Mid-America Redi-Mix, Inc. (''Mid-America"), for six alleged
violations of mandatory standards, and proposed a total assessment of $726. Sterling had filed a
request for a hearing but failed to answer the Secretary's petition for assessment. On October 25,
1999, Chief Administrative Law Judge Paul Merlin issued an order to respondent to show cause,
directing Sterling to file an answer within 30 days. On November 4, 1999, noting that the
penalties had been paid, Chief Judge Merlin issued a decision approving the penalties and
dismissing the case.· The judge's decision became final 40 days after its issuance, on December
14, 1999. 30 u.s.c. § 823(d)(l).
On May 9, 2000, the Commission received a letter from Marc Westhoff, owner ofMidAmerica, requesting that the judge's decision approving the penalties and dismissing the case be
set aside. Mot. Westhoff states that he purchased Mid-America and its holdings on September
28, 1999. Id. Westhoff claims that the check paying the subject penalties was written on August
25, 1999, prior to Westhoff's ownership, but that the check did not clear until October 6, after
Westhoff took ownership. 1 Id. He seeks reimbursement for this payment because he believes

1

It appears that Westhoff is stating that although the previous owner of Sterling wrote
the check, Westhoff effectively paid the penalties because funds for the check were drawn from
Sterling's account after Westhoff assumed ownership.
935

that he is not responsible for these penalties. Id. The Secretary of Labor does not oppose
Sterling's request that these proceedings be reopened.
The judge's jurisdiction in this matter terminated when his decision was issued on
November 4, 1999. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance,
it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). The Commission
received Sterling's request on May 9, nearly six months after the judge's decision became a final
decision of the Commission.
A final Commission judgment or order may be reopened under Rule 60(b)( 1) & (6) of the
Federal Rules of Civil Procedure under circumstances such as mistake, inadvertence, excusable
neglect, or other reasons justifying relief. See 29 C.F.R. § 2700.l(b) (Federal Rules of Civil
Procedure apply "so far as practicable" in the absence of applicable Commission rules); Lloyd
Logging, Inc., 13 FMSHRC 781, 782 (May 1991 ). The Commission has granted requests to
reopen where operators have mistakenly paid penalties and shown that they intended to contest
the penalties. Doe Run Co., 21FMSHRC1183, 1184-85 (Nov. 1999); Cyprus Emerald
Resources Corp., 21FMSHRC592, 592-93 (June 1999).

r:..:

·.·

Here, however, Sterling has not alleged that it had intended to contest the penalty that was
paid. Instead, Westhoff merely argues that he is not responsible for the payment of the penalty
because the subject "citation was written against the old owner, but was paid by me, the new
owner." Mot. But Westhoff fails to explain how his purchase of Sterling affected the company's
responsibility to pay the penalty. We thus conclude that Sterling has failed to set forth grounds
justifying relief under Rule 60(b).2

Whether WestQ.off is ent~tled to reimbursement from the previous owner of Sterling for
an unanticipated expense arising under the terms of the sale of the .business is an issue of contract
or corporate law, not a matter arising under the Mine Act which the Commission may review.
2

936

..

~.

Accordingly, Sterling's request for relief is denied. 3

James C. Riley, Commissioner

Theodore F. Verheggen, Co

Robe~ H. Beatty, Jr., Commissiq~er

3

Jn view of the fact that the Secretary does not oppose Sterling's motion to reopen this
matter for a hearing on the merits, Commissioner Marks concludes that the motion should be
granted.

937

Distribution
Marc Westhoff
Mid-America Redi-Mix, Inc.
2510 W. Blanchard
P.O. Box 2146
Hutchinson, KS 67504
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

...

.·

.·

·~

.-:··.

..
·:.

938

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

August 9, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

CIVIL PENALTY PROCEEDING

v.

Docket Nos. CENT 2000-299
and 2000-300

GEORGES COLLIERS, INCORPORATED

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

ORDER

BY: Jordan, Chairman; Riley and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On June 5, 2000, the Commission received from Georges
Colliers, Inc. a request to reopen two penalty assessments that had become final orders of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of
Labor does not .oppose the motion for relief filed by Georges Colliers.
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 so notify the Secretary, the
proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, Georges Colliers contends that it intended to file hearing requests because it
is experiencing financial hardship and, as a matter of policy, has contested all proposed penalties.
Mot. at 1. It asserts that it submitted financial documents to the Department of Labor's Mine
Safety and Health Administration's Civil Penalty Compliance Office and was indirectly notified
that that office notified the Regional Solicitor's Office that Georges Colliers was entitled to
financial hardship consideration. Id. at 2. Georges Colliers contends that it either misplaced or
misfiled the proposed assessments due to changes in office clerks during the time it received the
proposed penalty assessments or that the Civil Penalty Compliance Office lost its hearing
request. Id. Georges Colliers requests that the Commission reopen the proposed penalty
939

assessments in the -subject proceedings. Georges Colliers attached to its motion copies of the
notices of proposed penalty assessments and a demand letter for payment of the penalties from
MSHA. 1 Attachs.
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 105(a). See, e.g., Essayons, Inc., 20 FMSHRC 786, 788 (Aug. 1998) (remanding final
order when operator misplaced proposed penalty notification); Del Rio, Inc., 19 FMSHRC 467,
468 (Mar. 1997) (remanding final order when operator inadvertently misfiled hearing request
card); RB Coal Co., 17 FMSHRC 1110, 1111 (July 1995) (remanding final order when operator
misplaced hearing request card). We have also 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)(l), we have previously afforded a party relief from a final order of the Commission on the
basis of inadvertence or mistake. See National Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept.
1998); Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 159192 (Sept. 1996).

,. ..

......

1

Although Georges Colliers alleges that it may have misplaced or misfiled the proposed
penalty assessments, it appears that it subsequently obtained or retrieved copies to submit as
attachments to its motion. However, Georges Colliers fails to explain the circumstances of when
or how it obtained such copies.
940

On-the basis- of the present record, we are unable to evaluate the merits of Georges
Colliers• position. 2 The documents attached to Georges Colliers'. motion do not substantiate its
allegations that it misplaced or misfiled the proposed penalty assessments or that MSHA
misplaced its hearing request. In the interest of justice, we remand the matter for assignment to a
judge to determine whether Georges Colliers has met the criteria for relief under Rule 60(b). See
BR&D Enterprises, Inc., 22 FMSHRC 479, 481(Apr.2000) (remanding where operator claimed
it timely sent hearing request, but never received return receipt and, in support, attached copies of
correspondences between it and MSHA and a certified mailing receipt which did not indicate the
document sent) and East Arkansas Contractors, Inc., 21 FMSHRC 981, 981-82 (Sept. 1999)
(remanding where operator failed to file hearing request because of a change in personnel
responsible for handling such matters and ensuing mishandling of the proposed penalty notice).
Compare Chantilly Crushed Stone, Inc., 22 FMSHRC 17, 17-18 (Jan. 2000) (granting operator's
request to reopen where operator claimed its hearing request was late due to mail delays beyond
its control and submitted affidavit, copy of the green card, and a letter from MSHA in support).
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.

.-:-...

... .

-.---.--~

/James C. Riley, Commissioner
I

Robert H. Beatty, Jr., Commissioner

2

In view of the fact that the Secretary does not oppose Georges Colliers' motion to
reopen this matter for a hearing on the merits, Commissioners Marks and Verheggen conclude
that the motion should be granted.

941

.
Distribution
Elizabeth M. Christian, Esq.
2600 Tealwood, #326
Oklahoma City, OK 73120
W. Cluistian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

.-

.·
:..·.

942

'

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

August 23, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 99-233

V.

EARL BEGLEY, employed by
MANALAPAN MINING COMPANY,
INCORPORATED

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

ORDER
BY: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On May 25, 2000, the Commission received
via facsimile transmission a petition for discretionary review from Earl Begley, employed by
Manalapan Mining Co., Inc., challenging a decision issued by Administrative Law Judge Avram
Weisberger on April 19, 2000. In his decision, Judge Weisberger found that Begley had violated
section 317(c) 'of the Mine Act, 30 U.S.C. § 877(c), by carrying smoking materials underground,
and ordered Begley to pay a civil penalty of $250. 22 FMSHRC 537, 540-43 (Apr. 2000) (ALJ).
The judge's jurisdiction in this matter terminated when his decision was issued on April
19, 2000. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules,
relief from a judge's decision may be sought by filing a petition for discretionary review within
30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does
not direct review within 40 days of a decision's issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(l). Begley's petition was received by the Commission on May
25, 2000, six days past the 30-day deadline. Under the Commission's Procedural Rules, the
filing of a petition for discretionary review is effective upon receipt. 29 C.F.R. § 2700. 70(a).
On May 30, 2000, the Commission issued an order denying Begley's petition for
discretionary review as untimely. 22 FMSHRC 629, 631 (May 2000). The Commission
explained that Begley, who was represented by counsel, had availed himself of the opportunity to
943

bring his case before a judge, and had offered no explanation for his failure to timely submit a
petition for discretionary review. Id. at 630. Commissioner Marks dissented, stating that he
would have granted Begley' s petition. Id. at 631.
On June 14, 2000, the Commission received from Begley, by counsel, a petition for
reconsideration. In his petition, Begley asks the Commission to grant his previously denied
petition for discretionary review. Pet. Recons. at 1. Begley explains that, although the judge
issued his decision in this case on April 19, 2000, he subsequently issued an order on May 5,
2000, amending his April 19 decision and correcting clerical errors. Id. Begley asserts that the
deadline for filing a petition for discretionary should run from May 5, and that his petition for
discretionary review filed on May 25 was timely. Id.
Since the Commission issued its order denying his petition for discretionary review on
May 30, 2000, the Commission's Procedural Rules required that any petition for reconsideration
ofthis denial be filed within 10 days, or by June 9, 2000. See 29 C.F.R. §§ 2700.78(a) ("A
petition for reconsideration must be filed with the Commission within 10 days after a decision or
order of the Commission."); 2700.5(d) ("When filing is by mail, filing is effective upon
mailing."). Begley's petition for reconsideration, however, was filed on June 14, 2000, 5 days
after this filing deadline. Begley has offered no explanation for the late filing of his petition for
reconsideration.
In any event, even if Begley's petition for reconsideration had been timely filed, we
would not depart from our prior holding that Begley's petition for discretionary review was
untimely. The Commission has held that clerical corrections made subsequent to the issuance of
a judge's decision do not toll the period for filing a petition for discretionary review of the
judge's decision on the merits. North American Coal Corp., 2 FMSHRC 1694, 1695 (July 1980)
(rejecting argument that motion to correct a judge's decision tolls the period for filing a petition
for discretionary review, and holding that a petition for discretionary review must be filed within
30 days of the judge's decision on the merits); see also Capitol Aggregates, Inc., 2 FMSHRC
1040, 1041 (May 1980) (holding that once a judge issues his decision, his jurisdiction terminates,
and he cannot stay·the effect of his decision or reconsider it). The Commission's holding is
consistent with federal practice in that a motion to correct non-substantive clerical errors does not
toll the period for filing an appeal. See Harmon v. Harper, 7 F.3d 1455, 1457 (9th Cir. 1993); In
re Cobb, 750 F.2d 477, 479 (5th Cir. 1985) ("Corrections under Rule 60(a) [to correct clerical
mistakes] do not affect the underlying judgment, and consistent therewith, do not affect the time
for filing a notice of appeal.").

944

Based on t~e foregoing, we deny Begley's petition for reconsideration as untimely. 1

Theodore F. Verheggen, Co

Robert H. Beatty, Jr., Commissioner

1

Commissioner Marks would accept Begley's petition for reconsideration, and grant
Begley's petition for discretionary review.
945

Distribution

:..:

.·

Fred Owens, Jr.
Attorney at Law
209 East Mound St., Suite 102
P.O. Box 352
Harlan, KY 40831
W. Christian Schumann, Esq.
Offic.e of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

.·

..·

•

946

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

August 30, 2000

DAVID MORALES
Docket No. WEST 99-188-DM

V.

ASARCO, INC.

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

DECISION
BY THE COMMISSION:
This discrimination proceeding arises under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. § 815(c)(3) (1994). At issue is
Commission Administrative Law Judge Richard Manning's decision dismissing the complaint of
discrimination filed by David Morales against Asarco, Inc. ("Asarco"). 22 FMSHRC 659, 671
(May 2000) (ALJ). The Commission granted Morales' petition for discretionary review
challenging the judge's decision. For the reasons set forth below, we vacate the judge's decision
and remand this matter to him to conduct further proceedings consistent with this decision.
Asarco terminated Morales on August 13, 1998. Id. at 660. Morales filed a complaint
with the Department·ofLabor's Mine Safety and Health Administration ("MSHA") alleging that
Asarco fired him because oh April 7, 1997, he complained to MSHA that fumes in the cab of a
truck he was operating were making him sick. Id. Morales' complaint was tried before Judge
Manning under section 105(c)(3) of the Act. Although the judge found that Morales had engaged
in protected activity (22 FMSHRC at 665), he dismissed the discrimination complaint on the
grounds that "there is nothing [in the record] to suggest that Mr. Morales was targeted for
discharge, that he was being closely watched because of his MSHA complaint, or that his
discipline was unusually harsh." Id. at 666. The judge concluded: "If! review the evidence
presented in this case against the indicia of discriminatory intent :frequently relied upon by the
Commission, I find that Mr. Morales did not establish that his discharge was motivated in any
part by his protected activity." Id. at 670.

In his petition for discretionary review, however, Morales alleged that an attempt was
made by an Asarco employee to interfere with the testimony of a witness he called, Tony Rivera.
947

This allegation was supported by notarized statements from Rivera and ·Rito Orrantia, another
witness Morales called. In a Supplemental Memorandum in Opposition to Complainant's
Petition for Discretionary Review and Motion for Reconsideration of the Commission' s Grant of
Review, 1 Asarco "categorically denies" Morales' allegation of witness interference, and avers
that the allegation was "raised at trial and rejected based on the evidence." Supp. Opp. at 1-2.
We find that the record does not support Asarco' s assertion that the judge addressed
Morales' allegation of witness interference. To the contrary, the specific allegation made in the
PDR was not brought up before the judge, whose decision is dated May 8, 2000, whereas the
Rivera and Orrantia statements are dated May 18, 2000. The allegation is of a serious enough
nature, however, that we find good cause exists to consider it on review. See 30 U.S.C.
§ 823(d)(2)(A)(iii) ("Except 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 had not been afforded the
opportunity to pass.").
We are unable, however, to evaluate Morales' allegation. This must be done by the fmder
of fact in the first instance. We thus remand this case to the judge to determine whether any
attempt was made to influence Rivera's testimony as alleged in the petition, and if so, whether
any such conduct had a material effect on the outcome of the proceedings before the judge. In
considering these questions, the judge may, in his discretion, order further proceedings as
appropriate. 2

..·

.. ··.

1

We hereby deny Asarco ' s motion for reconsideration.

2

On August 18, 2000, the Commission received an additional document from Morales
containing additional allegations regarding his employment history and termination, and witness
intimidation. We have not considered this additional information in reaching our decision. The
judge may consider this information on remand, if appropriate.

948

Accordingly, we vacate the judge's decision and remand this matter to him to conduct
further proceedings consistent with this decision. 3

Marc Lincoln Marks, Commissioner

'

James C. Riley, Commissioner

Theodore F. Verheggen, Commi

/ <xi' I

~

Robert H. Beatty, Jr., Commissio/er
3

Morales raises many other issues in his petition for discretionary review that we do not
reach at this time. He may, of course, raise these issues again, as appropriate, in a petition for
review of the judge's decision on remand, including any parts of the decision we vacate today
that the judge reinstates in his remand decision, or that are necessary predicates to the remand
decision.
949

Distribution
David Morales
P.O. Box 1115
Frisco, CO 80443
::·

Henry Chajet, Esq.
David J. Farber, Esq.
J. Alexander Hershey, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

950

...

....·

ADMINISTRATIVE LAW JUDGE DECISIONS

.. .

·.··
......

~

..··.
·~

·. .

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

August 1, 2000

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

DISCRIMINATION PROCEEDINGS

Docket No. PENN 99-158-D
WILK CD 99-01

v.

Docket No. PENN 99-129-D
WILK CD 99-01

READING ANTHRACITE COMPANY,
Respondent

Wadesville Pit
Mine ID 36-01977

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

Judge Weisberger

The Statement of the Case
This discrimination proceeding is before me based on the Commission's decision in this
matter, 22 FMSHRC 298 (March 2000) which vacated my initial decision in this case, 2 1
FMSHRC 819 (July 1999), and remanded this matter for "further analysis" of the issue of
whether Respondent had established its affirmative defense that Bemardyn would have been
fired in any event based on his unprotected activities i.e., the use of profanity over a C.B. radio,
and the use of threatening language he directed at Wapinski, the general superintendent at the
site. On May 5, 2000, Respondent filed a brief The Secretary's brief was received on May 30,
2000. On June 9, 2000 Respondent's reply brief was received.

951

I.

Bernardyn's Statement Constituted a Threat.

According to Bernardyn, after he was stopped by Wapinski for going too slow, he stated,
over the C.B. radio, that he was being harassed, and that he was asked to drive faster than
warranted by the road conditions. Bernardyn indicated that he did use curse words at the time.
He did not contradict or impeach the testimony of Derrick, that he (Bernardyn) used the
following language over the C.B. radio "I will get the little f----r''.
Bernardyn testified that he had never threatened anybody in his life. I find this general
statement insufficient to contradict or impeach Derrick's testimony regarding the specific
language used by Bernardyn. Further, although Bernardyn might, in his own mind, have
considered the language that he used not to have constituted a threat, I do not find this dispositive
of the issue of whether the words used by him constituted an expression of an intent to inflict
harm on Wapinski. To the contrary, I find more significant the objective context in which
Bemardyn uttered the statement at issue. I note that the statement was made over the C.B. by
Bernardyn in an attempt to contact his union representative, in reaction to the incident in which
Wapinski stopped him and told him that he was going too slow at a time when Bemardyn had
concluded that the road was getting slippery. Also, Bernardyn conceded that he did use curse
words at the time, evidencing a"degree of animus. Within this framework, I conclude that
Bernardyn's statement over the C.B. constituted a threat, i.e., an expression of an intent to inflict
hann on another. (See, Webster Third New International Dictionary) (1986 edition)).
IL

.·

The 1987 Policy and the 1998 Policy.

In its decision, the Commission noted the dispute between the parties as to which
disciplinary policy was in effect at the time of Bemardyn's discharge i.e., a 1987 policy which
provided, that, inter alia "[r]efusal to obey orders or failure to carry out instructions or
assignments ('Insubordination') to be a serious offense, and that the offending miner would be
discharged after "complete exhaustion of disciplinary warnings and suspensions," or a 1998
policy providing that insubordination will result in discharge without exhausting disciplinary
warnings and suspensions. In this connection, I note that a letter :from Reading's attorney,
Howard A. Rosenthal, to Daniel J. Kane, executive board member of the United Mine Workers
of America, dated August 4, 1998, states, as pertinent, " ... the Company will implement the
attached Code of Conduct following the conclusion of the current negotiations and ratification of
the new collective bargaining agreement." Hence, the Company committed itself to implement
the 1998 policy upon ratification of the new collective bargaining agreement. Jay Berger,
District Executive Board Member of the United Mine Workers, testified that the new agreement
was not ratified until November 16, 1998, i.e., subsequent to the adverse action taken against
Bernardyn. This statement appears to be coorborated in language contained in a letter written by
Rosenthal to Kane, dated November 17, 1998, which contains the following language "this letter
confirms that the Company has accepted the changes to the Supplemental Memorandum of
Agreement dated October 27, 1998, which we understand was ratified, in advance by the

. ·.

952

.·..

UMWA." Within this context, I find that it was more probable than not that the 1998
disciplinary policy was not in effect at the time ofBemardyn's termination.
III.

Whether Bemardyn Suffered Disparate Treatment.

I take cognizance of the fact that John Downey, the President of the local union, who had
worked for Reading for approximately 20 years until June 1998, indicated that in September
1998, at a grievance hearing that he attended, it "c[a]me out" (Tr. 28, May 18, 1999) that Edward
Mitchell, a truck driver employed by Reading, who had alleged he was "forced" to drive a truck
not in his classification, directed the following towards his supervisor: "you can s--- my d--- if
you think I will drive that truck." (Tr. 29, May 18, 1999). According to Downey, Mitchell was
not discharged by Reading for the use of the profanity, but instead was fired for refusing to
perform a job task that was not in his classification. Downey stated that Mitchell was rehired the
following day. Also, three other individuals working for Reading who had used profanity
directed against their foremen had only been given warnings.
However, based on Derrick's testimony, that I find credible, inasmuch as it was not
impeached or contradicted, that, in contrast to these individuals who just received warnings,
Bemardyn used threatening language over the C.B. radio, whereas the other individuals did not
use threatening language, and did not broadcast their profanity over the C.B. radio. Further, the
other individuals made a profane remark only once, whereas Bemardyn used profanity "non
stop" (Tr. 21, May 19, 1999) for approximately 8 to 10 minutes. I thus find that Bemardyn's
conduct was more egregious, and thus not in the same category as the others who were merely
warned.
IV.

Provocation

The only evidence in the record relating to whether Reading's agents' actions or words
provoked or incited Bemardyn to curse and issue a threat, is Bemardyn's testimony that when he
was stopped by Wapinski and told that he was going too slow, he explained to Wapinski that it
was getting slippery; and Wapinski responded by telling him "get the thing moving and get
going". Wapinski testified that he told Bemardyn "pick it up when and where you can". It also
appears that Bemardyn felt that he was being harassed and expressed this over the C.B.
I find that although Bemardyn may have subjectively felt that he was being harassed by
Wapinski, the Secretary has failed to establish that Reading provoked Bemardyn into using
profanity and issuing a threat over a C.B. radio. I note that the Secretary did not cite, nor does
the record contain, any actions or conduct on the part of any of Reading's agents that might
constitute an act of provocation. Further, the only statement by Reading's agents that might be
seen as provocation, was Wapinski's response to Bemardyn's protected activity of slowing down
due to poor road conditions wherein he stated "get this thing moving and get going" or "pick it
up when and where you can." I find that the words in these statements are devoid of any threat or
expression of any animus toward Bemardyn or his protected activity. I find that Bemardyn's
953

unprotected activities, in using profanity for 8 to 10 minutes directed not against Wapinski but
over a C.B. radio, and using words constituting a threat over a C.B. radio, to have been out of
proportion to the one-time, brief statements Wapinski made to him. I thus find that, within the
circumstances of this case viewed in their totality, that it has not been established that any
conduct, statements, or actions of Reading's agents constituted a provocation which justified or
excused Bernardyn's using profanity, and voicing a threat. 1

.•.

.·

1

The cases cited· and relied by the Secretary are in inapposite to the facts presented in the
case at bar. In NLRB v. M & B Headwear Co., 349 F 2"d 170 (41h Cir. 1965), the Fourth Circuit
upheld the reinstatement of a worker who, after a discriminatory layoff, threatened a supervisor
because the unjust and discriminatory treatment of [the worker] gave rise to the antagonistic
environment in which these remarks were made. 349 F znd supra, at 174. In M & B Headwear,
~. in contrast to the case at bar, the employer had subjected the discharged employee to
surveillance when the former was engaging in protected activities. Also, she was transferred to a
different job six days after she had engaged in protected activities, and she was told by a
supervisor that it was unfair of her to attempt to organize the plant without telling the company's
officers. The Court found that there was sufficient evidence to support the Board's conclusion
that her layoff was discriminatory. In this context the Court found that the unjust and
discriminatory treatment of the worker gave rise to the antagonistic environment in which the
worker's subsequent threats and rudeness were made. In contrast, in the case at bar, there is no
evidence of any unjust and discriminatory treatment of Bernardyn to lead to a conclusion that any
wrongful provocation existed.
Similarly, in NLRB v. Steinerfilm. Inc. 669 F 2"d 845 (1st Cir. 1982), the Court, in
upholding the decision of the Board that had held that a discharge of an employee was unlawful,
noted that the company had engaged in a series of unfair labor practices. including threats to the
discharged employee. Also, the company had issued a warning, which the Court found that the
Board was fully justified in concluding had been unlawful. The Court held that the Board could
reasonably conclude that the discharged employee's abusive language was an excusable action to
the unjustified warning he had received just minutes before, and therefor the discharge was
improper. In contrast, in the case at bar, Bernardyn' s use of excessive profanity did not follow
any unlawful warning or other unlawful act on the part of Respondent.
Lastly, in Trustees of Boston University vs. NLRB 548 F zn<1 391 (1 st Cir. 1977), the First
Circuit upheld an Administrative Law Judge's decision excusing an employee' s misconduct
because it was stimulated by the employer's own wrongful conduct. In the instant case, in
contrast, it has not been established that Bernardyn's use of profanity and threatening language
was stimulated by Respondent's wrongful conduct. Specifically, the plain meaning of the words
used by Wapinski in response to Bernardyn's driving slowly due to slippery conditions, do not
contain any threat or animus toward Bernardyn relating to his protected activity under the Act,
i.e., driving slow due to slippery conditions, and hence were not "wrongful".

954

.·

V.

Conclusion

The critical issue to be resolved is the nexus between Bemardyn's protected activity and
the adverse action taken against him by Respondent. The disciplinary policy of 1987 in effect
when Bernardyn was terminated did not specifically grant Respondent the right to terminate an
employee based upon the latter's use of profanity, and the issuance by the latter of a threat
against a supervisor. However, the Secretary cannot prevail if the operator establishes that it
would have terminated Bernardyn anyway for the unprotected activity alone. (See, Bradley v.
Bela Coal Co. 4 FMSHRC 992, 993 (June 1992).2 In this connection, I reiterate the finding that I
made in the original decision, 21 FMSHRC filllll1!, at 823, accepting Derrick' s testimony that was
not impeached or contracted, that Bernardyn cursed "unstop" over the C.B. radio, and used
threatening language directed against Wapinski , his supervisor. Accordingly, I find credible
Derrick's testimony that his decision to immediately terminate Bernardino was made when
Bernardino cursed and threatened his supervisor over the C.B.. I thus find that Reading has
established that it's decision to immediately terminate Bernardino would have been taken in
either event based upon Bernardino's unprotected activities, i.e., excessive profanity, and
threatening profane language directed over the C.B. radio against his supervisor.
Therefore, for all the above reasons, I find that although the Secretary has established a
prima facie case,, Reading has prevailed in establishing it's affirmative defense. I thus conclude
that the Secretary has not prevailed in establishing that Bernardyn was discharged in violation of
Section 105(c) of the Act. Therefore the Complaint shall be dismissed.

(Footnote 1 continued)
Further, in Boston University, supra , the discharged employee' s conduct consisted of
being "offensive" on a number of occasions in dealing with supervisors, and brandising a pair of
scissors. (The court, Boston University, supra at 392, n. 2., found the decision of the NLRB that
this episode was not perceived as a serious threat, to be a supportable characterization.) In
contrast, in the case at bar, the employee misconduct ofBernardyn, was most egregious, as he
used profanity for 8 to 10 minutes over the C.B., and issued a verbal threat.
2

It thus is not for this forum to determine whether the termination was consistent with
agreements (policies) negotiated between the operator and the union.
955

VI.

Order

It is ORDERED that the Complaint filed in this case be dismissed, and that this case
shall be dismissed.

·~

..

::.· -.

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

.··...·

956
...:

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3868
Telephone No.: 202-653-5454_
Telecopier No.: 202-653-5030

August 3, 2000

CNIT., PENALTY PROCEEDING

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

Docket No. SE 99-244-M
A. C. No. 40-00022-05593

Mine: Anderson Mine

FRANKLIN INDUSTRIAL MINERALS,
Respondent

DECISION
Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, for the Petitioner,
Timothy Biddle, Esq., Crowell & Moring, Washington, DC for Respondent.
Before: Judge Barbour
This civil penalty proceeding arises under section 105 of the Federal Mine Safety and
Health Act of 1977 (30 U.S.C. §815) (Mine Act or Act). The Secretary of Labor (Secretary) on
behalf of her Mine Safety and Health Administration (MSHA) seeks the assessment of a civil
penalty against Franklin Industrial Minerals (Franklin) for an alleged violation of 30 C.F.R.
§57.9101 , a mandatory safety standard for underground metal and nonmetal mines that requires
operators of self-propelled mobile equipment to maintain control of the equipment while it is in
motion. 1 Franklin was cited for the violation following MSHA 's investigation of a fatal accident
that occurred at Franklin's Anderson Mine on December 23, 1998. The accident happened when
a miner was crushed between a front-end loader (FEL) and a railcar. In addition to alleging a
violation, the Secretary charges the violation was a significant and substantial contribution to a
mine safety hazard (S&S) and was the result of Franklin' s unwarrantable failure to comply with
the regulation. The Secretary prqposes that Franklin be assessed a civil penalty of $55,000.

1

The Secretary originally charged Franklin with a violation of 30 C.F.R. §57.14205, a
mand_a tory safety standard requiring that machinery and equipment not be used beyond the design
capacity intended by the manufacturer where such use w ill create a hazard. A few days before
the hearing the Secretary moved to amend her pleadings to allege a violation of section 57.9101.
I consulted with counsels and advised them I would hear arguments and would rule on the
motion at the hearing. At the start of the hearing counsel for the Secretary stood upon the
motion, counsel for Franklin summarized the reasons for the company's opposition, and I granted
the motion (Tr. 8-9, 36).
957

Franklin denies that it violated section 57.9101 . Alternatively, it argues the violation was
neither S&S nor unwarrantable. The matter was heard in Nashyille, Tennessee, and following
the hearing counsels filed helpful briefs.

<::~

\ :

THE ISSUES
The issues are whether Franklin violated section 57.9101; whether the violation was
S&S and unwarrantable; and the amount of any civil penalty that must be assessed.

STIPULATIONS
The parties stipulated that Franklin demonstrated good faith in achieving rapid
compliance after being cited. They also stipulated that in 1998 the company had sales of
approximately $110,000,000 and employed 620 persons (Tr. 13-14). Based on the stipulations,
the Secretary took the position that the company was a large operator, while Franklin maintained
that the company was medium in size when compared to other companies in the metal/nonmetal
industry (Tr. 13-14). The Secretary also took the position that the proposed penalty would not
adversely affect the company's ability to continue in business. The company responded that a
"reasonable" penalty would not affect its ability to continue in business (Tr. 17). Finally, the
company agreed to the facts stated in the first three pages of the MSHA accident investigation
report. (The pages contain sections entitled, General Information, Physical Factors Involved,
and Description ofAccident (Tr. 18; Exh. P-6 at 1-3)). The company took exception to the
conclusions MSHA drew from the facts.

·::'.

'·

THE FACTS
T he Mine and The Equipment Involved In The Accident
The report states as follows2 :

.·
.·

The Anderson Mine, an underground crushed stone
operation, ... [is] located about six mines south of Sherwood,
Franklin Country, Tennessee .... The mine [is] normally operated
two, ten-hour shifts a day, 5-1/2 days a week....
The operation consists of an underground mine with a
surface mill. ... [Underground b]roken limestone [is] loaded into
trucks by [FELs]and [is] transported to the surface where it [is]
crushed, sized, and stored in silos[~ Tr. 121, 227]. The finished

2

Bracketed citations within the quoted passages reference testimony and exhibits
that amplify the report.
958

,,.·.
r··.·

.·...·

.. .

procf:uct [is] shipped by rail and truck to ... customers.[3]

*

*

*

*

The accident occurred on the surface near the scales at the
railcar load-out area[(an area where the railcars are loaded and
weighed)). Three parallel sets of tracks [serve] the load-out area.
The first and second sets [are] joined by a switch near the scale
[see Exhs. P-42, P-44, P-48]. The scale and silos [are] adjacent to
the second set of tracks. Empty [rail]cars [are] parked on the first
track and towed to the silos, two at a time, by a ... [FEL] so both
[rail]cars [can] be filled simultaneously. Loaded [rail]cars [are]
towed over the scales, down the second track[(the middle track)]
then switched to the third track where they [are] parked [see Tr.
122, 230].
The second track, where the accident occurred, slope[ s] at a
maximum of 1.56 %. The first 24 feet of track [drop] 3/4-inch per
each 4 feet. The next 100 feet [drop] 1/2-inch per each 4 feet. ...
[Rail]cars were parked on the third track approximately 100 feet
from the scale.
The railcar involved in the accident . . . was loaded ... and
was on the second track.

*

*

*

The ... [FEL] involved in the accident [see Exh. P-32] ...
,[has] an enclosed cab. The ... [FEL] weigh[s] 52,440 pounds.
The [FEL's] bucket measure[s] 57 inches high by 10 feet, 3-inches
wide. Eyelets [have] been welded near each end of the bucket for
the purpose of attaching a cable to pull railcars on the tracks.
Two, 8-foot by I-inch choker cables [are] used to tow [a]
railcar . . . . The C.ables [are] double-ended and connected with
cable clevises. The first cable [is] attached to the eyelets on the
loader bucket with pilllled clevises [see Exh. P-34). A second
cable [is] attached to the first cable by a swivel clevis so it [can]
slide from one end of the bucket to the other in order to tow from

3

Most of the railcars are owned by CSX. CSX picks up the railcars and moves
them off of mine property after the railcars have been loaded, weighed, and stored (Tr. 229-230).

959

. . ·.. ..

~., ::

.·

' .

eitl:ier side of the railcar [Id.; see e.g. Exh. P-38]. The other end of
the cable [has] an open hook attached with a clevis. The hook [is]
connected to a ring located on the side of the railcar [see e.g. Exh.
P-43] (Exh. P-6 at 1-2).
At the hearing the procedure for moving the railcars off of the scale was described by
Kurt Kiser, the plant manager:
As the [railcar] was being pulled . . . off of the scale, the ...
[FEL] would apply tension to the cable and start the railcar rolling
. . . and whenever sufficient movement and momentum had been
picked up by the [rail]car, then slack resulted in the cable at which
point the ground man [(a miner who was assigned to work with the
FEL operator)] would grab the cable, grab the hook and unhook it
from the [rail]car, and walk and toss the hook into the bucket of the
... [FEL]. The railcar would proceed on its own momentum down
the inclined part of the track to the storage track (Tr. 231 ).[4]
Kiser acknowledged that there were times when the ground man was unable to unhook
the tow-cable from the railcar and as a result, "the ... [FEL] operator was required to follow the
railcar down the inclined part of the track until such time ... [as] either the [rail]car came to rest
on its own because of the rolling resistance of the [rail]car or ... the ... [FEL] operator [had to]
apply pressure to the tow-cable along the side of the car to bring the car to a rest" (Tr. 232-233).
According to Kiser when the FEL operator applied pressure to the tow-cable and increased the
tension of the cable, either the railcar stopped due to the increased tension or it continued to roll
past the FEL, pulled the FEL into the side of the railcar, and the resulting collision stopped the
railcar (Tr. 234).

The Accident
The accident report described the events of December 23.
Weather on [that] day . . . was cold and wet with rain mixed
with sleet. Ground conditions were muddy.

*

*

*

Brandon Privette (victim) and Gary Gardner, ... [FEL]
operator, reported for work at 5:00 a.m., their normal starting time.
They went to the silos to load [railcars]. Several loaded [rail]cars
had been left from the previous shift, so they moved those cars

4

fu tests conducted at the mine after the accident under conditions similar to those on
December 23, MSHA determined the average speed of the railcar as it rolled leaving the scales
was approximately 100 feet in 22.4 seconds or 3.04 mph (Exh. P 6 at 2).

960

..

·~

down the second track. ·Privette operated the .. . [FEL] loader
while Garner rigged the tow-cable and worked the brakes on the
[railcars]. After moving the loaded [rail]cars, they began moving
empty [rail]cars onto the second track, filling, weighing, and then
towing them down the track. At about 7:15 a.m., Thomas Guess
arrived and relieved Privette on the ... [FEL]. Privette assisted
him on the ground. Shortly after, Garner left to work elsewhere.
Work proceeded without incident until about 9:00 a.m.
when Privette and Guess moved two loaded [rail]cars to the scale.
The first car was weighed and towed past the scale. [(Guess
continued to back up the FEL to keep pace with the rolling
railcar.)) When the second car was weighed, it was determined
that more product was needed to make the proper weight. Because
the ... [FEL] could get little traction with no-lug tires and muddy
ground, Guess was unable to move both [rail]cars back to the silos.
The [rail] cars were then separated and Privette attached the towcable to the first [rail)car to move it down the track to join the
other loaded [rail]cars. Guess backed [up) the [FEL], towing the
[rail]car.
When the [rail]car began to roll freely, the tow-cable
became slack and Privette stepped between the slowly moving
[FEL] and [the railcar] to unhook the cable. The [rail]car
continued to roll approximately 100 feet while Guess tried to
maintain enough slack for Privette to unhook the cable. When
Guess realized he was about to back into the loaded railcars parked
on the third track, he stopped the loader. The [railcar] continued to
.roll past the ... [FEL]. When the slack in the cable was taken up
abruptly, the side of the .. . [FEL] bucket was jerked against the
rail car [see e.g. Exh. P-35, Exh. P-39] crushing Privette.
Guess summoned help and mine personnel administered
CPR unsuccessfully. Emergency medical technicians transported
Privette to a local-hospital where he was pronounced dead on
arrival. The immediate cause of death was respiratory arrest
caused by [a] major chest crushing injury (Exh. P-6 at 2-3).

Additional Details
Guess's testimony added particulars to the events of December 23. He explained that he
and Privette were working as a team that morning. Together they moved approximately 10
railcars off of the scales (Tr. 221). Around 9:00 a.m. two additional railcars were on the track,
one had been weighed and one was waiting to be weighed. The cars were coupled. At first the
961

men attempted to pull the weighed railcar off of the scales and to move the second car onto the
scales. However, the FEL could not get sufficient traction, and.Guess, who was operating the
FEL, could not move the cars. Therefore, the men decided to move one car at a time. They
uncoupled the cars and Privette attached a tow-cable to the railcar on the scales. Guess backed
up the FEL. It was difficult to get the railcar to move but Guess continued to pull and the railcar
began to roll. The tow-cable hook was still attached to the railcar and the FEL had to continue
pulling to keep the car rolling. Finally, the railcar began to move more freely. Guess turned and
looked to make sure he was not going to back the FEL into the railcars on the storage track (Tr.
217-219).
Guess described what happened next, "I noticed [Privette] trying to run in to unhook ...
[the cable]. And the next thing I [knew], when I turned around, I was beingjerked over to him,
and I was turning the wheel to keep from hitting him, but it was too late" (Tr. 219-220, see also
Tr. 223).
Guess stated that he was unable to keep the FEL from being pulled into the railcar,
"Because I was tied to the car with the cable" (Tr.220). He was asked why he did not apply the
brakes. He responded, "IfI would have slammed on the brakes, it would have more than likely
turned the FEL over .. . [b]ecause I was pretty much in an 'L' shape trying to keep [the FEL]
from hitting [Privette]" (Id.).

The Towing Procedure and Loss of Control
Volvo Construction Equipment, Inc. (Volvo) manufactured the FEL. Roy Ghrist,
Director of Product Integrity for Volvo, testified that he was consulted frequently about safety
issues related to the use of Volvo equipment. He stated that he did not believe the procedure
used by Franklin to tow and to stop railcars was safe. He objected to the fact that it required a
person physically to go between the FEL and the railcar to unhook the tow-cable (Tr. 53, 56). If
the railcar rolled past the FEL the force of the railcar on the tow-cable would very quickly pull
the FEL and its bucket into the side of the railcar (Tr. 56). The FEL operator could not stop the
FEL from hitting the railcar which, according to Ghrist, meant that the FEL operator had lost
control of the FEL (Tr. 71).
Dennis Ferlich, ofMSHA's technical support division and a participant in MSHA's
investigation of the accident, agreed with Ghrist. He too testified that once the railcar passed the
FEL and tension was placed on the tow-cable there was nothing an FEL operator could do to
prevent the loader from being dragged sideways into the railcar (Tr. 127, 131-132, see also Tr.
92-93).
... ..

Not surprisingly, Franklin's witnesses had a different view. For example, Kiser did not
believe the FEL's movement represented a loss of control because, as Kiser stated, the FEL
operator was, " ..performing what he want[ed] to perform and that [was] to position a railcar
where he want[ed] to position it" (Tr. 235). Rather than losing control of the FEL, the operator,
"was in the process of performing a controlled stop of the railcar" (Tr. 237).
962

THE VIOLATION
Citation No. 4875742 as amended states:
A fatal accident occurred at this operation . .. when a miner
working in the railcar load-out area was crushed between a ...
[PEL] and a loaded railcar. The miner was killed when he stepped
between the PEL and the railcar to detach a tow-cable and hookassembly which was attached to the FEL and hooked to the railcar.
The FEL had been modified by the attachment of this tow-cable
and hook-assembly to be used to control the movement of loaded
railcars along the load-out tracks. This modification and use
periodically caused the FEL to be pulled into the railcar when it
traveled past the FEL which was still attached to it by the towcable and hook-assembly. The PEL operator could not control the
FEL when the tow-cable and hook-assembly pulled it into the
railcar. The operator knew the practice of moving railcars with the
FEL and tow-cable and hook-assembly periodically caused the FEL
to be pulled into the railcar. The PEL operator had limited
experience and training in the use of the FEL to move railcars
(Exh. P 4).
As the Secretary correctly notes, section 57.9101 requires: 1) that the equipment
involved is "self-propelled mobile equipment"; 2) that control of the equipment is not maintained
by the equipment operator; and 3) that the equipment is in motion when control is not maintained
(Sec. Br. 24).
Section 57.9101 is found in Subpart Hof Part 57. The term "mobile equipment" used in
Subpart H is defined as "Wheeled ... equipment capable of being moved" (30 C.F.R. §57.9000).
The FEL moved on wheels and under its own power. It was both mobile and self-propelled.
The fact that the FEL operator was unable to maintain control of the moving equipment
and therefore was in violation of the standard was compellingly described by Guess, "[T]he next
thing I [knew] . . . I was beingjerked over to ... [Privette], and I was turning the wheel to keep
from hitting him, but it was too late" (Tr. 219-220). Given the situation, there was nothing Guess
could do to avoid a violation. As he testified, if he had slammed on the brakes the resulting
movement of the FEL could have caused the equipment to overturned. This result also would
have represented a loss of control (Tr. 220).
Other Franklin employees agreed that Guess essentially was powerless to control the
FEL's movement. Jon Hannah, an FEL operator who trained Guess, stated that because the FEL
operator could not keep going backward indefinitely, at some point the operator had to slow
down or apply the brakes. At that time, the railcar could roll past the FEL; could jerk the FEL
into the side of the railcar; and the FEL operator could do nothing to prevent it (Tr. 195-196).
963

Franklin'·s superintendent of production agreed (Tr. 253).
The focus of the violation is on the movement of the FEL not, as Kiser argued, on an
attempted "controlled stop" of the railcar (Tr. 237). The salient points are that as the FEL was
pulled toward the railcar the FEL was in motion and its operator could not control the motion. It
is true that as a result of the violation Privette was hit and killed, but even if Privette had not
gotten between the FEL and the railcar, even if the FEL had only hit the railcar, the FEL's
uncontrolled and uncontrollable movement into the side of the railcar would have violated
section 57.9101.
The company argues that sections 57.9101 does not apply to a situation in which an FEL
tows a loaded railcar because section 57.9101 and its associated sections are titled, Traffic Safety
and "A plain language reading of . .. [section 57.9101] and a reading of the accompanying traffic
safety regulations, make clear that the regulation does not prohibit Franklin's method of stopping
railcars" (Franklin Br. 10). It adds, "use of a cable by an FEL to pull a railcar can hardly be
considered 'traffic' "(Id.). However, and as the Commission has stated, "The headings used
in ... Part [57] are designed for organizational convenience to supply short-hand
characterizations of the general subject matter involved in the standards (Allied Chemical Corp.,
6FMSHRC 1854, 1856-57 (August 1984)). Therefore, the headings, "do not control over the
plain words of the text" (Id). Here, the words of the standard are unambiguous and easy to
understand. They were violated when the FEL was jerked into the side of the railcar in a
movement Guess was unable to control.

S&S and GRAVITY
A violation is significant and substantial when, based on 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 (Arch of Kentucky, 20 FMSHRC 1321, 1329
(December, 1998); Cyprus Emerald Resources. Inc., 20 FMSHRC 790, 816 (August 1998);
National Gypsum ·Co., 3 FMSHRC 822, 825 (April 1981)). In Mathies Coal Co., 6 FMSHRC 1
(January 1984), the ·Commission held that in order to establish an S&S violation of a mandatory
standard the Secretary must prove: (1) the existence of an underlying violation; (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 the injury in question will be of a reasonably serious nature. Evaluation of these
elements is made in terms of "continued normal mining operations" (ll.S. Steel Mining Co ..
Inc., 6 FMSHRC 1573, 1574 (July 1984)).
Here, the Secretary met her burden. The violation existed as charged. The hazard
contributed to was that the FEL operator could not avoid hitting anyone or anything that came
between the FEL and the railcar because the FEL operator had no control over the equipment
once it was pulled toward the railcar. Given the weight of the FEL (52,440 pounds) (Exh. P-6 at
1) and the substantial force the railcar exerted on the tow-cable serious injury or death was
virtually certain to result.
964

·~.~·

I recognize· that Franklin presented testimony from its then safety director (Tommy
Stevens), its mine manager (Kiser), and its superintendent of production and maintenance
(Kenneth Clark) that miners were not supposed to go between a moving FEL and a railcar (Tr.
161-162, 237, 270). Stevens testified, "If a loader is hooked to a railcar and they are in a
continuous motion, ... [a miner] shouldn't approach that situation,, (Tr. 161-162). He stated this
was a "rule,, at the mine (Id.). In other words, if the ground man failed to unhook the tow-cable
and the FEL continued to back up as the railcar rolled down the track the ground man was to get
out of the way. However, the initial attempt to unhook the tow-cable was made while the railcar
was beginning to roll. This required the ground man to go between the FEL and the railcar while
the railcar was moving. Long time FEL operator, J. C. Wilkinson testified, "You tug on the car,
get it to move and then flip the hook out" (Tr. 205).
The fact that a ground man was required to unhook the cable while the railcar was
moving (however slowly) meant that if the ground man failed to unhook the cable the railcar
could pass the FEL and could jerk the FEL into the railcar and into the ground man if he, for
some reason, did not get out of the way. Further, the fact that the practice oftowing railcars with
FELs had been on-going for some time and without anyone being injured, easily could have lead
a ground man to believe that he could approach a railcar even if it had moved away from the
scales and down the tracks toward the storage area.
Wilkinson agreed that FELs "occasionally" were pulled into railcars (Tr. 206-207).
Given the fact that the towing of railcars made getting between FELs and railcars a familiar and
routine procedure to the mine's ground men, I conclude that as mining operations continued it
was only a matter of time before a miner would miscalculate and would place himself or herself
between an FEL and railcar immediately before or as the FEL was jerked toward the railcar. 5 To
put it another way, I conclude there was a reasonable likelihood miners would be injured or
killed unless the towing procedure (and hence the violation) was stopped. Therefore, I find that
the violation was S&S.
The Commission recently emphasized that the focus of the gravity criterion is on, "the
effect of the hazard if it occurs" (Hubb Corp., 22 FMSHRC 606, 609 (May 2000) (quoting
Consolidation Coal Co., 18 FMSHRC 1541, 1550 (September 1996)). In this case the hazard
occurred and the death of a miner resulted. If the practice had continued other deaths or serious
injuries reasonably could have been expected. This was a very serious violation.

UNWARRANTABLE FAILURE and NEGLIGENCE
The Commission has defined unwarrantable failure as aggravated conduct constituting

5

The procedures for towing railcars were not set forth in writing. They were given
orally. Privette did not follow the instructions (Tr. 171), and I find no reason apparent in the
record why other miners would not have placed themselves in similar danger if the citation had
not halted the practice.
965

more than ordinary negligence (Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 1987)).
The Commission also has stated that unwarrantable failure is C<?nduct that is characterized by
reckless disregard, intentional misconduct, indifference or a serious lack of reasonable care
(Emery, 9 FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194
(February 1991)).
Several factors must be considered in analyzing whether a violation results from
unwarrantable failure. Among these are: "the extensiveness of the violation, the length of time
that the violative condition has existed, the operator's efforts to eliminate the ... condition, and
whether (the] operator has been placed on notice that greater efforts are necessary for
compliance" (Mullins and Sons Coal Co., 16 FMSHRC 192, 195 (February 1994)). The
culpability determination required for a finding of unwarrantable failure is similar to gross
negligence or recklessness. It is more than a "knew or should have known" test (Virginia Crews
Coal Co., 15 FMSHRC 2103, 2107 October 1993)).
I agree with the Secretary that Franklin unwarrantably failed to comply with section
57.9101. The violation was the result of the deliberate decision of Franklin to tow railcars off the
scale by using an FEL and a tow-cable. In making this decision, Franklin knew and counted on
the fact that if tension applied to the tow-cable did not stop the railcar, the uncontrolled
movement of the FEL into the side of the railcar would. The practice of towing railcars had been
used at the mine for some time (Tr.191-192, 204, 210-211, 247, 262). The uncontrolled
movement of an FEL into a railcar was a common component of the practice (Tr. 206-207).
Therefore, over time the practice involved repeated deliberate violations of section 57.9101.
Franklin maintains it was unaware that the uncontrolled movement of the FEL into the
side of the railcar was a violation. Stevens believed that when MSHA inspectors came to the
mine and inspected surface areas they must have seen the towing procedure in use, yet they never
issued a citation based on the procedure (Tr. 260-261). However, neither Stevens nor other
Franklin witnesses testified that they knew for a fact that an MSHA inspector actually observed a
railcar towed by an FEL (~ Tr.261, 268). MSHA supervisor Craig credibly testified that he was
not aware of the procedure (Tr. 100). Therefore, I cannot find that MSHA knew about the
procedure but failed to recognize that it constituted a violation.

.. ..

...,

.··

..·

..·
.·
.··

To prevent an accident while the procedure was being undertaken, the company relied on
the fact that its miners were trained in the procedure. However, training alone did not meet the
company's duty of care. The oral and on-the-job training that Franklin provided may have
lessened chances for a mistake, but it did not eliminate the hazard. Indeed, and as I have found,
the procedure left open the possibility that a ground man like Privette would miscalculate and go
between the FEL and the railcar. Therefore, the company had a duty either to provide a way to
protect an erring miner from a mistake or, if that were not possible, to adopt another procedure
that did not require the uncontrolled movement of equipment.
The company did not meet this duty. Rather, Franklin allowed the possibility that the
FEL operator, the ground man, or both would make errors of timing or judgement and be unable
966

..·

to take corrective action. In purposefully adopting a procedure that over time involved repeated
violations of section 57. 9101 and in failing to fully meet its duty.of care to its miners, Franklin
was more than ordinarily negligent.
CIVIL PENALTY CRITERIA
I have found that the violation was serious and that the company's failure to comply with
section 57.9101 was due to more than ordinary negligence. In assessing a civil penalty, the Act
mandates that I also consider Franklin's history of previous violations, the size of its business,
the effect of the penalty on the company's ability to continue in business, and its good faith in
attempting to comply rapidly after being charged (30 U.S.C. §820(i)).
To establish the company's history of previous violations the Secretary offered a
computer print-out which shows the history of previously assessed and paid violations at the
mine within two years prior to the accident. The report indicates that during this period 32
violations were assessed and paid. It also indicates that there were no previous violations of
section 57.9101 (Exh. P-1 at 1). I find this to be a moderate to small previous history.
As I noted previously, the parties stipulated that in 1998 the company had sales of
approximately $110,000,000 and employed 620 persons (Tr. 13-14). I also observe that when
she assessed the proposed penalty the Secretary listed the hours worked by the company
employees as 866,738 and the hours worked at the mine as 98,740 (Petition for Assessment of
Civil Penalty, Exhibit A). Considering these factors and reviewing the way in which the
Secretary evaluates the size criterion (see 30 C.F.R. §100.2(b)), I conclude that Franklin is a
medium size operator. Further, with annual sales of $110,000,000, I find that the amount of the
penalty that must be assessed for the violation will not affect the company's ability to continue in
business. Finally, and as the Secretary stipulated, Franklin abated the violation in good faith (see
Tr. 13-14). 6
The penalty proposed by the Secretary is the maximum allowed by the Act. The civil
penalty criteria augur for less. First, Franklin has a small to moderate history of pervious
violations. Second, Franklin is medium in size. Third, although the violation was very serious
and was due to Franklin's more than ordinary lack of care, the fatal results of the violation were
contributed to by Privette's own lack of care. The record supports finding that he placed himself
where he should not have been. Although this in no way excuses the violation, its purposefully
implementation by Franklin, nor its very serious nature, it recognizes that Privette shared in the
blame for the violation's tragic consequences.
Considering all of these factors, I conclude Franklin should be assessed a civil penalty of
$15,000.

6

Abatement involved adopting another method of moving railcars off the scale.
967

·..

ORDER
Within 30 days of the date of this Decision, Franklin is ORDERED to pay a civil penalty
of$15,000. Upon payment of the penalty, this proceeding is DISMISSED.

~rlf~~

David F. Barbour
Chief Administrative Law Judge

Distribution: (Certified)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201 , Nashville, TN 37215
Timothy Biddle, Esq., Crowell &Moring, 1001 Pennsylvania Avenue, N.W., Washington, DC
20004-2595
/wd

...

=·.=::.

968

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

August 4, 2000
SECRETARY OF LABOR, MSHA
on behalf of
DWAYNEH.HEMENWAY,
ALLEN P. BLUEMKE, and
ROBERT R. WILLIAMS
Complainants

DISCRIMINATION PROCEEDINGS
Docket No. LAKE 2000-41-DM
Docket No. LAKE 2000-42-DM
Docket No. LAKE 2000-43-DM
NCMD99-IO
NCMD 99-11
NCMD 99-12

V.

HIBBING TACONITE COMPANY
Respondent

Mine ID 21-01600
Hibbing Mine
DECISION

Appearances: Rafael Alvarez, Esq., U.S. Department of Labor, Office of the Solicitor, Chicago,
Illinois for Complainants;
R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh, Pennsylvania for
Respondent.
Before:

Judge Bulluck

These cases concern discrimination proce~ngs filed pursuant to Section 105(c) of the
Federal Mine ~afety and Health Act of 1977, 30 U.S.C. § 815(c)(3). The Secretary, on behalf of
Hemenway, Bluemke and Williams, alleges that the miners were unlawfully disciplined on
March 5, 1999, for alleged misuse of their Article XIV (Basic Labor Agreement) rights, and
seeks expungement of their personnel files of letters of reprimand and all references to the
subject protected activity. Additionally, the Secretary seeks orders directing Hibbing Taconite to
cease and desist .discriminatory activities directed at all miners, posting of a notice of violation,
and imposition of a $3,000.00 civil penalty.
A hearing on the merits was convened on July 17, 2000, in Duluth, Minnesota, during the
course of which the parties engaged in discussions and negotiated a settlement. Under the terms
of the agreement, Hibbing Taconite is required to take the following action:
1. expunge the personnel files of Hemenway, Bluemke and Williams of letters of
discipline;
2. delete any reference to the letters of discipline from the discipline log
maintained in the computer record keeping system;
969

3. post the Motion to Dismiss and Approve Settlement and this Order for 30

days; and
4. pay a civil penalty in the amount of $100.00 for the discrimination violation.
The settlement was approved at hearing, and that determination is hereby confirmed.
ORDER

The settlement is appropriate and is in the public interest. WHEREFORE, the approval
of settlement is GRANTED, and it is ORDERED that Hibbing Taconite comply with terms of
the settlement agreement, as set forth above, and pay a civil penalty of $100.00 within 30 days of
the date of this decision. Upon Hibbing Taconite's compliance with all terms of settlement, these
proceedings are DISMISSED.

ff·

~~~
Administrative Law Judge

Distribution: (certified mail)
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St.,
gth Floor, Chicago, IL 60604
Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant Street, 20th Floor,
Pittsburgh, PA 15219-1410
\nt
=: ::~

970

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

August 8, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

TEMPORARY REINSTATEMENT
PROCEEDING

on behalf of ROGER DALE DAMRON, II :
Complainant

Docket No. WEVA 2000-81-D
HOPE CD 2000-08
Mine No. 1
Mine l.D. No. 46-08564

V.

TRI-COUNTY MINING, INC.,
Respondent

DECISION

Ail!
ORDER OF TEMPORARY REINSTATEMENT
Appearances: Elizabeth Lopes Beason, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Applicant;
Roger L. Kirk, President, Tri-County Mining, Inc., Breeden, West Virginia,
Pro Se.
This case is before me on an Application for Temporary Reinstatement filed by the
Secretary of Labor, .acting through her Mine Safety and Health Administration (MSHA), on
behalf of Roger Dale Damron, II, pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(c). The application seeks reinstatement of Mr. Damron as
an employee at Mine No. I, operated by Tri-County, pending a decision on a discrimination
complaint he has filed with MSJiA. A hearing was held on August 2, 2000, in Logan, West
Virginia. For the reasons set forth below, I grant the application and order Mr. Damron's
temporary reinstatement.
At the hearing, the parties announced that an agreement had been arrived at concerning
Mr. Damron's application. At the present time, most employees of Tri-County have been laidoff. Only a few have been called back so far. Consequently, the agreement provides, not for the
Applicant's immediate reinstatement, but for the order in which he will be recalled to work.

971

The parties have agreed that Jerry Copley, who is presently laid-off, has been an
employee of Tri-County longer than Damron and that, therefore, when Tri-County needs to fill
the position of drill operator or truck driver, Copley will be offered the position. If Copley turns
it down, it will then be offered to Mr. Damron. If Copley takes the job, Damron will be offered
the next position, for which he is qualified, that becomes available. Mr. Damron is qualified as a
truck driver, drill operator and general utility worker. When recalled, Mr. Damron agrees that he
will perform a pre-operational check on any equipment that he is asked to operate and will report
any unsafe condition to the operator, so that the operator has an opportunity to correct the
condition.
In accordance with the agreement, I conclude that Mr. Damron's complaint has not been
frivolously brought and that he is entitled to be temporarily reinstated as agreed upon.
Order

The motion to approve settlement is GRANTED. Tri-County Mining, Inc., is
ORDERED TO REINSTATE Mr. Damron as provided in the agreement.

lfr~~

Administrative Law Judge

Distribution:
Elizabeth Lopes Beason, Esq., Office of the Solicitor, U.S. Department of Labor, 4015.Wilson
Boulevard, Suite 516, Arlington, VA 22203 (Certified Mail)
Roger L. Kirk, President, Tri-County Mining, Inc., P.O. Box 03, Breeden, WV 25666
Int

972

....·

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

August 18, 2000
CNIL PENALTY PROCEEDING

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

Docket No. WEST 99-309-M
A. C. No. 35-02761-05521

PORTABLE ROCK PRODUCTION CO., INC.,
Respondent

Portable Rock Production Co., Inc.
(Sears Road Pit)

DECISION
Appearances:

William W. Kates, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Seattle, Washington, for the Petitioner;
E. Jay Perry, Esq., P.O. Box 7126, Eugene, Oregon, for the Respondent.

Before:

Judge Melick

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor,
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act," charging Portable Rock Production Company Inc. (Portable Rock) with three
violations of mandatory standards and proposing civil penalties of $80,000.00 for those
violations. The general issue before me is whether Portable Rock violated the cited standards as
alleged and, if so, what is the appropriate civil penalty to be assessed concerning the criteria
under Section 11 O(i) of the Act.
On September 2, 1998, bulldozer operator Vernon Smith suffered massive head injuries
when the outer edge of the third level bench at Portable Rock's Sears Road Pit failed, causing his
bulldozer to overturn. It is undisputed that material had been removed from the second level
bench the day before, thereby undercutting and removing adequate support for the third level
bench at the location of the bench failure. Smith died of his injuries several days later.
Citation No. 4135309 alleges a "significant and substantial" violation of the standard at
30 C.F.R. § 56.3130 and charges as follows:
A fatal accident occurred at this mine on September 2, 1998, when a
bulldozer overturned in the pit. When the bulldozer operator traversed the third
level bench, the outer edge of the bench failed, causing the bulldozer to overturn.
973

Removal of material from the second level bench the previous day
eliminated .adequate support for the third level bench. The mine operator failed to
use mining methods that would maintain wall, bank, and slope stability in this
area.
The cited standard provides as follows:
Mining methods shall be used that will maintain wall, bank, and slope
stability in places where persons work or travel in performing their assigned tasks.
When benching is necessary, the width and height shall be based on the type of
equipment used for cleaning of benches or for scaling of walls, banks, and slopes.
It is undisputed that material had indeed been removed from the second level bench on
September 1, 1998, the day before the accident at issue. As a result of such action the third level
bench was undercut and rendered unstable for travel by Smith's bulldozer. The failure of the
third level bench in this case causing the bulldozer to overturn was a direct result of the
Respondent's failure to have maintained the stability of the cited wall. These facts clearly
establish a violation of the cited standard.

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

See also Austin Power Jn.c. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), affg 9
FMSHRC 2015, 2021(December1987) (approving Mathies criteria).

The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such
injury must be evaluated in terms of continued normal mining operations without any
assumptions as to abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984);
See also Halfway, Inc., 8 FMSHRC 8, 12(January1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).
974

While the cjtation at issue alleges that the violation was the result of"moderate"
negligence the Secretary has cited no theories or evidence to support such a conclusion. Indeed,
the undisputed evidence does not support a finding of any significant operator negligence. While
it is noted that the deceased, Vernon Smith, had previously been a mine superintendent for
Portable Rock it is undisputed that he had retired from that position a number of years before and
at the time of the accident had been working only as a rank and file bulldozer operator. As such,
Smith was not an agent of the operator whose negligent conduct can be imputed to the operator .
See Secretary v. Whayne Supply Company, 19 FMSHRC 447 (March 1997). While the
Commission held in the Whayne Supply case that where a rank and file employee has violated the
Act, the operator's supervision training and discipline of its employees must be examined to
determine if the operator has taken reasonable steps to prevent the rank and file miner's violative
conduct, no evidence in this regard with respect to this violation was presented at hearing.
It is also undisputed that Smith had advised both co-worker Edward Wright and the
operator's agent, crusher foreman Art Squires, that he was about to repair the subject undercut.
Smith also told Wright at the end of the shift on the previous day that the following day he would
be carrying diesel fuel to the upper bench but would first repair the bench. Moreover, on the
morning of the accident Smith confirmed to Squires that he would need to build the road up the
hill in order to haul fuel to Wright. Squires was then aware that the bench road had been
undermined and that it needed new material to provide support. Squires believed that Smith was
the best qualified person to perform this work.
Under the circumstances it is apparent that foreman Squires reasonably and in good faith
believed that Smith would remedy the hazardous condition of the third level bench before it
would be used as a roadway. Accordingly, I find the operator chargeable with but little
negligence and significant weight is given this criterion in determining the appropriate penalty
herein.
Citatiop No. 4135311, issued pursuant to Section 104(d)(l) of the Act, 1 alleges a

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

under this Act. If, during the same inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized representative of the Secretary finds
another violation of any mandatory health or safety standard and finds such violation to be also
975

"significant and St1bstantial"·violation of the standard at 30 C.F.R. § 56.14130(g) and charges as
follows:
A fatal accident occurred at this mine on September 2, 1998, when a
bulldozer overturned in the pit. The third level bench caved from beneath the
bulldozer, causing it to roll 2 Yi times.
The victim was not wearing the seat belt. The mine operator's failure to
require and ensure that the bulldozer operator wore the seat belt is a lack of
reasonable care constituting more than ordinary negligence and is an
unwarrantable failure to comply with a mandatory standard.
The cited standard provides as relevant hereto that "[s]eat belts shall be worn by the
equipment operator."
The Secretary's proof in this regard is based on circumstantial evidence, primarily
observations following the accident. MSHA inspector and special investigator Randall Cardwell,
arrived at the mine site at 9:30 on the morning of the accident. Cardwell examined the bulldozer
lying on its side below the failed bench and noted that one end of its seat belt was "tucked"
beneath the seat. Cardwell also interviewed Portable Rock employee Kenny Johnson who was
first on the scene of the accident. Johnson at first stated he could not recall whether he found the
deceased wearing the seat belt but later told Cardwell that in fact he did find the deceased "out of
his seat belt." Johnson nevertheless still claimed that he did not know whether the deceased was
wearing it. According to Cardwell, on the following day, September 3, 1998, Johnson finally
acknowledged to him that the deceased was not wearing a seat belt when he found him.2 I am
satisfied from the above evidence alone that the Secretary has sustained her burden of proving
that Smith had not at the time of his accident been wearing a seat belt. The violation is
accordingly proven as charged. Under all the circumstances there is also no doubt that the
violation was ,of high gravity and "significant and substantial."

caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the Secretary determines that such
violation has been abated."

2

While Johnson testified that he could not recall at the time of the hearing whether
he found Smith wearing a seat belt I recognize that at the time of his testimony he remained an
employee of Portable Rock. I find Inspector Cardwell's testimony regarding Johnson's
statements to him on the date of the accident and the day after, corroborated by Cardwell's notes,
to be the most reliable and credible evidence on this issue.
976

·.·

I also find the operator chargeable with high negligence based upon the credible evidence
of its prior failure to have enforced its policy requiring the use of seat belts against Smith.
According to Inspector Cardwell, Portable Rock President, Jack Bessett, admitted during his
investigation that he had seen Smith operating without a seat belt on prior occasions and that
Smith explained that he wanted to be able to jump free if the equipment rolled over.
According to MSHA supervisory inspector Colin Galloway, Portable Rock VicePresident Lonnie Bessett admitted to him at the September 10, 1998, "closeout conference" that
Smith "sometimes wore his seat belts" and asked rhetorically "how do you discipline somebody
that's been with the company since it started?" While recognizing that Jack Bessett had
apparently retired from active participation in the Portable Rock operations in 1994, his
unchallenged admissions, when considered with those of current Vice-President Lonnie Bessett,
provide a sufficient foundation from which it may reasonably be inferred that indeed Smith had
disregarded the seat belt requirements with impunity and without fear of disciplinary action.
Within this framework of evidence I find the operator chargeable with high negligence. The
same evidence also supports a finding that the violation was caused by the operator's
unwarrantable failure.
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. This determination was derived, in part, from the plain meaning of "unwarrantable"
("not justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected or appropriate
action"), and "negligence" (the failure to use such care as a reasonably prudent and careful person
would use, and is characterized by "inadvertence," "thoughtlessness," and "inattention").
9 FMSHRC at 2001. Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference" or a "serious lack of reasonable care."
9 FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94
(February 1991). Clearly the evidence that both Lonnie and Jack Bassett failed to enforce the
seat belt policy against the deceased constitutes a serious lack of reasonable care and reckless
disregard within the framework of the cited law.
Order No. 4135313, issued pursuant to Section 104(d)(l) of the Act, alleges a "significant
and substantial" violation of the standard at 30 C.F.R. § 56.14130(i) and charges as follows:

A fatal accident occurred at this mine on September 2, 1998, when a
bulldozer overturned in the pit. The seat belts on the bulldozer were not
maintained in functional condition in that the belt had been cut or tom 2 Y2 inches
from the flat metal end, preventing adjustment of the belt to a flat metal end,
preventing adjustment of the belt to a longer length. Further, the belt was cut or
tom slightly on each edge, approximately 8 inches from the buckle. The mine
operator's failure to ensure that the seat belts were properly maintained is a lack of
reasonable care constituting more than ordinary negligence and is an
unwarrantable failure to comply with a mandatory standard.

977

The cited standard provides that "seat belts shall be maintained in functional condition
and replaced when necessary to assure proper performance." .
The Secretary acknowledges in her post-hearing briefthat the cited seat belt in fact "did
work" and upon testing found that the ''buckle components of the belt" held (Petitioner's Brief at
p. 5). At hearing the citing inspector also acknowledged that he was unaware of any mandatory
standard governing the length of seat belts, that he was unaware of the length of the seat belt at
issue, that he was unaware of the waist size of any of the operator's employees, that he was
unaware of any specific requirement for seat belt strength, that no strength testing had been
performed on the seat belt at issue and that he did not know whether the dirt (and presumably
also the oil stains) found on the belt had resulted from the accident at issue. The inspector
further acknowledged that while he could have photographed both of the alleged cuts or tears in
the seat belt he photographed only one. Moreover the barely visible cut or tear shown in the
photograph in evidence is not in itself sufficient to demonstrate that the subject seat belt was not
maintained in a functional condition or that it should have been replaced to assure proper
performance. Under the circumstances I cannot find that the Secretary has sustained her burden
of proving the violation at issue. Accordingly, Order No. 4135313 must be vacated.

.·

..

·:
•·:·.

..·:-.
r=.:

Civil Penalties
The Act requires that, "[i]n assessing civil monetary penalties, the Commission shall
consider' the following six statutory criteria:
[1] the operator's history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, (3] whether the
operator was negligent, [4] the effect on the operator's ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.

In determining appropriate civil penalties herein I have considered the gravity and
negligence findings previously made as to each violation. I have also considered the small size
of the operator (approximately 9,282 hours worked at the subject mine in the calendar year prior
to the violations, its history of violations (a bad history consisting of 43 paid violations within the
two preceding years 21 of which were "significant and substantial") and the Secretary's
admission that the violative conditions were abated as directed and within the time specified.
There is no claim or evidence that even the Secretary's proposed penalties would affect
Respondent's ability to remain in business. There is a presumption therefore that the penalties
herein would not affect its ability to remain in business.

978

...

ORDER
Order No. 4135313 is vacated. Citation No. 4135311 is modified to a citation under
Section 104(a) of the Act and is affirmed as a "significant and substantial" citation. Citation No.
4135309 is affirmed as a "significant and substantial" citation. Portable Rock Production
Company, Inc., is hereby directed to pay civil penalties of $5,000.00 for the violation charged in
Citation No. 4135309 and $25,000.00 for the violation charged in Citation No. 4135311, within
40 days of the date of this decision.

Distribution: (Certified Mail)
William W. Kates, Esq., Office of the Solicitor, U.S. Dept. of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212
E. Jay Perry, Esq., Employers Defense Counsel, P.O. Box 7126, Eugene, OR 97401
\mca

979

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1 244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

August 23, 2000
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 98-373-M
A.C. No. 26-02321-05504
Docket No. WEST 98-375-M
A.C. No. 26-02321-05505

v.

ALTA GOLD COMPANY,
Griffon Project

Respondent

DECISION
Appearances: Steven R. DeSmith, Esq., Office of the Solicitor, U.S. Department of Labor,
San Francisco, California, for Petitioner;
Ross E. deLipkau, Esq., Reno, Nevada, for Respondent.
Before:

Judge Cetti

These consolidated cases are before me upon Petitions for Assessment of Civil Penalty,
filed by the Secretary of Labor (Secretary) seeking the imposition of civil penalties against Alta
Gold Company (Alta Gold) based upon three citations alleging violations of mandatory standards
which are set forth in Title 30 of the Code of Federal Regulations. Respondent filed timely
answers and, pursuant to notice, the consolidated cases were heard in Reno, Nevada. Both
parties presented tes.timony and documentary evidence at the hearing. Post-hearing and reply
briefs were filed by both parties.

ISSUES
The issues at the hearing were whether at the time of Inspector Cain's inspection of the
Griffon Project mine a violation of 30 C.F.R. § 56.9304(b), as alleged in Citation No. 7963330 in
Docket No. WEST 98-375-M, occurred and whether a violation of30 C.F.R. § 56.9301, as
alleged in Citation No. 7963328 in Docket No. WEST 98-373-M, occurred.

If a violation of either or both standards occurred, whether it significantly and
substantially contributed to the cause and effect of a mine safety or health hazard.

980

!fa violation of 30 C.F.R. § 56.9304(b) is established, did it result from an unwarrantable
failure to comply with the cited standard.
If a violation of a standard is established, what penalty is appropriate, talcing into
consideration the statutory criteria in section 1 lO(i) of the Act.
STIPULATIONS
1. Respondent, Alta Gold Company (with respect to size) has a total of 189,712 manhours worked per year. Alta Gold Company owns and operates the Griffon Project mine which
is a surface mine with 12,420 man hours worked per year.
2. In the 24 months preceding the issuance of the subject citations, Respondent has had
20 assessed violations. (Tr. 9).
3. The payment of the assessed penalties will not affect the ability of the Respondent to
continue in business.
4. Respondent demonstrated good faith in timely abatement of the alleged violations.
5. Respondent withdraws its contest of Citation No. 7963333.
DOCKET NO. WEST 98-375-M
Citation No. 7963330
Inspector Stephen Cain, an experienced MSHA inspector, testified at the hearing that he
inspected Respondent's Griffon Project mine on a regular mandated 01 inspection. Inspector
Cain waited at the mine site for the arrival of Mr. Rick Stork who was employed by Respondent
as a part-time.safety director as well as a truck driver. On Mr. Stork's arrival, Inspector Cain
requested to inspect the mine's stockpile. Cain found the stockpile to be approximately 176 feet
in length and 40 to 45 feet in height. Cain testified the stockpile was composed of loose and
unconsolidated blasted ore which was being stockpiled for loading into a crusher located at the
bottom of the stockpile. Cain observed that approximately 87 feet along the bottom of the
stockpile had been undercut to a height of 10 to 15 feet. He noted that 15 feet is the approximate
reach of the loader that was parked at the bottom of the stockpile. This front-end loader had been
used to feed the ore to the crusher. At the time of the inspection the loader was parked at the
bottom of the stockpile in the undercut area.
After inspecting the stockpile from the bottom, Cain asked to be taken to the top so that
he could observe Respondent's dumping operation. He was taken to the top of the stockpile
accompanied by Mr. Stork. While on top of the stockpile, he saw a haul truck designated at the
hearing as No. 2, pull onto the top of the stockpile, drive along the top of the stockpile, turn in,
stop and then back up to the berm at the edge of the stockpile. The driver then lifted the bed of
981

Truck No. 2 and dumped his load over the edge. Inspector Cain and Mr. Stork walked over to
the edge to see where the truck had dumped its load. Cain testified that he observed that the
truck's load of ore had been dumped within the 87-foot area that the stockpile was undercut.
Inspector Cain then issued to Alta Gold Citation No. 7963330. That citation charges Alta
Gold with a 104(d)(l) violation of the safety standard set forth at Title 30 C.F.R. § 58.9304(b).
That standard reads as follows:

§ 58.9304(b)
Where there is evidence that the ground at a dumping location
may fail to support the mobile equipment, loads shall be dumped a
safe distance back from the edge of the unstable area of the bank.
The citation at item 8 describes the alleged violation as follows:
The haul truck operator (Eloy Crespin), operating company #HF5
haul truck, was observed dumping a load of ore over the edge of
the ore stockpile. The area that he was observed dumping over,
had been undercut from below by the 988F loader that feeds the
crusher. By undercutting the slope and removing the toe of the
dump this made the ground unstable. There were haul truck tire
tracks present that indicated dumping had taken place earlier in the
shift at the same area. This exposed area was approximately 87
feet in length and the height of this dump was approximately (sic)
40-45 feet. The entire dump was approx. 170 feet in length. There
were no barriers, warning signs, or other measures used in this area
to alert drivers of this hazard. The company had allowed the
. practice of dumping over undercut material to exist. This is an
unwarrantable failure.
The statement that "There were no barriers ---" may be somewhat misleading as there was
undisputed evidence that the top edge of the stockpile had the proper required berm that
complied with the berm standard applicable for the 50-ton haul trucks that were used to haul and
dump the ore at the stockpile.
At the time of the inspection, three haul trucks were observed backing up to the berm and
dumping their load. Only one of the three trucks observed dumping, a truck designated No. 2, is
charged with dumping over an undercut area of the stockpile. There was no contention that the
other two haul trucks dumped over an unstable or undercut area of the stockpile.
Cain testified that the stockpile was unusually high for its length and for the composition
of the material which was loose and unconsolidated. He stated that norm·ally with this kind of
982

'.."

material, an operator will form a lower, longer stockpile to maintain stability. Cain added that
the higher the stockpile, the more unstable it becomes. Cain was clearly of the opinion that the
undercutting of the stockpile for 87 feet along the bottom of the stockpile resulted in the removal
of the toe of the stockpile in the undercut area and that removal of the toe compromised the
stability of the stockpile to such an extent that, in the words of the standard, it "may fail to
support" the weight of the loaded 50-ton haul truck when it backed up to the berm and lifts its
bed to dump its load. Under these conditions the cited standard § 56.9304 requires the load to be
dumped a safe distance back from the edge of the unstable area.
When the potential hazard was called to management's attention, Respondent
immediately ordered that all the trucks "dump short.,, That is the term used to instruct the haul
trucks to dump a safe distance away from the edge of the stockpile in the absence of a spotter or
other means which would direct haul trucks not to dump over an undercut, unstable portion of
the stockpile.
The berm that was in place along the entire dump site area was 3 to 3Yi feet high with
approximately an angle of repose of 1Y2 to 1. It was the same angle of repose as the general slope
of the stockpile. The haul trucks drove about two feet from the berm which was approximately
five feet from the edge of the stockpile. Cain testified he saw signs of instability but conceded he
saw no signs of cracking. Asked if he saw any signs of failure, Cain testified "unless it fails, you
won't see any signs of failure." Cain said he talked to the driver who said drivers were not told
where to dump; that they used their own judgment in determining where to dump.
Alta Gold contends that all three of the haul truck dumps that Inspector Cain and
Mr. Stork observed at the time of the inspection took place over stable, properly bermed ground.
To support its position, Respondent presented the testimony of Mr. Stork and the written
statement of Mr. Crespin who was the driver of the haul truck designated No. 2. Mr. Crespin's
written statement was received at Respondent's Ex. 4 over objection by Petitioner. The main
weakness oft\;1r. Crespin's statement is the fact there was no opportunity to cross-examine Mr.
Crespin. His written statement which remains mere hearsay is as follows:
THE MEETING BETWEEN ,MSHA AND MYSELF, WAS MOSTLY, ABOUT WHAT
THE FORMAN DOSE, (Sic) HE ASKED ME IF ANY OF THE SUPERVISORS TOLD
ME WHERE TO DUMP THAT DAY, l TOLD HIM NO, THEN HE ASKED IF THE
SPOT WHERE I DUMPED WAS UNDERCUT, AND I TOLD HIM IT WAS NOT,
THAT THE MOST THE LOADER COULD OF TAKEN OUT OF THAT SPOT WAS
ONE BUCKET FULL..
HE ALSO WANTED TO KNOW IF THE FORMAN CHECKS THE DUMPS AND
HOW MANY TIMES A DAY THEY DO IT, I TOLD HIM THAT THEY DO CHECK
THE DUMPS, HOW MANY TIMES A DAY, I DID NOT KNOW, BECAUSE A
DRIVER DON'T SPEND THAT MUCH TIME AT THE DUMP. HE ALSO WANTED
TO KNOW WHAT WE DO WHEN THE DUMP LOOKS UNSAFE, I TOLD HIM WE
DUMP ON TOP, AT THE END OF THE MEETING, HE ASKED ME IF l HAD
ANYTHING TO SAY,
I TOLD HIM DO YOU REALLY BELIEVE, THAT I WOULD JEOPARDY (Sic) MY
LIFE AND DUMP OVER A SPOT THATS UNDERCUT. HE SAID I GUESS NOT.

~83

This is the statement Mr. Crespin gave his employer summarizing his interview with the
Inspector.
Mr. Stork presented testimony indicating that only a small part of the alleged 87-foot
undercut section was in fact undercut; that only a bucketful of ore was removed by the loader so
that only a small portion of the toe of the stockpile was removed in the area where the No. 2
truck dumped its load. Mr. Stork was of the opinion that the stockpile was stable and safe. He
pointed out that there were no stress fractures at the dump site and, furthermore, no truck dumped
over any undercut area. . Mr. Stork testified that No. 2 truck dumped its load just next to and not
directly above the area of the stockpile where the loader had taken a bucketful of ore out of the
bottom toe of the stockpile. Mr. Stork explained that as the dumped ore cascaded down the
stockpile, a portion of the dumped load drifted into the undercut area where the bucketful of ore
at the toe of stockpile had been removed. He testified that when Truck No. 2 dumped its load,
the truck was on stable ground and a portion of the load spilled or drifted over into the area at the
bottom of the stockpile where a bucketful of ore had been removed.
Stork testified that in normal circumstances, the dozer operator after trimming the dump,
stays at the dump site to spot the haul trucks and to direct the haul trucks where he wants them to
dump. Asked as to why the dozer was not up at the dump site at the time of Cain's inspection,
Stork testified:
A. Yes. In normal circumstances, we have a dozer operator up on
that dump approximately 90 to 95 percent of the time.
Q. All right. Could you explain why the dozer operator wasn't on
the dump when inspector Cain and you visited the site in April of last year?
A. The dozer operator had been present on the dump until shortly
after Mr. Cain arrived on the property. Rudy Montoya, the foreman, had
just went (sic) through a safety inspection about a month and a half, two months
before out at the Kinsley project by Mr. Cain, and Mr. Cain has got a way
on his inspections of being very forceful, sometimes arrogant -- "intimidating" is the words that I've gotten from some of the people - the way
that they felt that he conducts his safety investigations.

.·

.·

,:;·:

···:;

Rudy knew that we had a pit above that was covered, the
haul road into it was covered in with snow because it was snowing that
day, and he felt that if Mr. Cain was wanting to go out and to do the
inspections like he'd done at Kinsley, would go into the pit and inspect
it, and he went down and pulled the dozer off of the dump to take him
up there specifically to clean a haul road out in the pit so that, if we
went in to inspect it, we would have a clean road and not a snow-packed
road to do it.
Had Rudy not been so jumpy, worried about what the

984
··:·:

inspector might want to inspect, what he's going to thlnk, that dozer
would have been left on that dump and it would have been there
directing every load over. (Tr. 128-129).
Stork also testified that the area at the top of the stockpile dump was stable and
compacted. Asked as to why that was so, he testified:
As the trucks roll over it, completely loaded, the wheel
motion of the trucks rolling over the ore compacts that ore tight,
and that - the type of material that we have at Griffon, we have
the dirt- the ore, once it's been blasted, has got anywhere from
small rock up to six-inch rock in it, sometimes a little bit bigger,
with the fine dirt, with a tremendous amount of clay, with a little
bit of moisture in it.
As the truck rolls over it, the top of that dump gets so hard
that sometimes when we need to trim it, the dozer actually has to
sink his rippers into the dirt to cut it and rip it so that he can push
it. (Tr. 133-134).
With respect to the top of the stockpile, Stork also testified:
There was no signs of settling in the dump which is an
indication of an unstable dump, there was no stress cracks, which
is an indication of an unstable dump, and when the trucks ran
across it, there was no settling, no cracking, no vibrations, no
movement.
It had to be stable or it would have moved. (Tr. 134).
Stork testified that the area of the stockpile where the No. 2 haul truck operator made his
dump was stable. Asked as to reasons why ~e determined it was stable he testified:
A. The fact that the dozer had just trimmed that whole face
of that dump that morning, pushed off all loose materials from it,
had reestablished a new berm that morning, and the surface
showed no signs of stress cracks in it, the truck where Eloy backed
up to did not sink into the dump, did not settle the dump, it did not
cause any stress cracks to appear in the dump after he dumped
there.
When he pulled away from it, it was just as good as
condition after he dumped there as before he ever backed into it.
Q. Okay.
A. And it had to be stable to be able to do that. (Tr. 141 ).

985

Cain, on the other hand, testified that although he was not a geologist or a mining
engineer he had a high school diploma and 1Yi years of formal college. Prior to his employment
with MSHA he worked eight years in the mining industry. He has taken special training courses
in stockpile safety. He described the courses as follows:
A. They would do with the inspecting, the stability, the
composition of the stockpiles, how to design a proper stockpile,
how to maintain a stockpile, how to make sure that the stockpile
can be dumped on, and that it doesn't present a hazard.
Q. And did you also take a course in haulage awareness
training?
A. Yes, I did.
Q. And what were the details of that? Or describe that
training.
A. Well, that training is, it talks about where haul trucks
operate, haul roads, on top of waste dumps, stockpiles, how to
properly dump over stockpiles, how to maintain a dumping
location, where the truck should dump.
Mr. Stork testified there was a good solid berm all across the face of the dump. The ore
had a tremendous amount of clay and a little moisture. The trucks and dozer running over the top
of the stockpile, compacted it down. Stork said there was no sign of settling in the dump and
there were no stress cracks, which is an indication of an unstable dump and when the trucks run
across the top of the dump there was "no settling, no cracking, and no vibration, no movement."
(Tr. 134).

.·

···.. ·

.~·

:

Obviously, Cain and Stork differed in their perception of the facts and even more on their
evaluation on the stability of the ground at the dumping location from which truck designated
No. 2 dumped its load. On evaluation of all the evidence and particularly on considering the
experience and training of Inspector Cain with respect to maintaining stability of the ground at a
stockpile dumping location, I find that a preponderance of the evidence establishes a violation of
the cited standard. Because of Inspector Cain's experience and specialized training in stockpile
stability, I credit his testimony with respect to the potential lack of stability of the dumping site at
the location where the operator of the haul truck designated No. 2 made its dump. I find the
hazard was not obvious and management was not aware of the hazard. I find the negligence was
moderate rather than high.
Significant and Substantial
A "significant and substantial" violation is described in section 104(d)(l) of the Mine Act
as a violation "of such nature as could significantly and substantially contribute to the cause and
effect ofa coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is
properly designated significant and substantial "if based upon the particular facts surrounding the

986

•.. ·~..

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
825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), the Commission explained its
intexpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard-that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985), the
Commission stated further as follows:

We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury." US. Steel Mining Co., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)( I); it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. US. Tell Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
· Company, Inc., 6 FMSHRC 1573, 1574-75(July1984).
I find the testimony of Inspector Cain established the four elements of the Mathies
formula for designating the violation S&S. Certainly with respect to the third and fourth
elements of the Mathies formula the most likely result for the operator of the truck falling 40 feet
from the top of the stockpile would be serious or fatal injuries.

Although I concur with the inspector's finding that the violation was S&S, I reject the
finding that the violation resulted from an unwarrantable failure of the operator.
Unwarrantable Failure
The Commission stated in a number of cases the factors applicable to determining
whether a violation was the result of unwarrantable failure. In Windsor Coal Co., 21 FMSHRC
997, 1000, (Sept. 1999), the Commission stated that the unwarrantable failure terminology is
987

taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by
an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated conduct constituting
more than ordinary negligence. Id. At 2001. Unwarrantable failure is characterized by such
conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of
reasonable care." Id. At 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb.
1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (71h Cir. 1995) (approving
Commission's unwarrantable failure test).
The Commission explained 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
violative condition, the length oftime that the violative condition existed; whether the violative
condition is obvious or conspicuous; the operator's efforts to eliminate the violative condition;
and whether an operator was placed on notice that greater efforts are necessary for compliance.
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC
1258, 1261(Aug.1992), Beth Energy Mines Inc., Kitt Energy Corp., 6 FMSHRC. Upon
evaluation of the evidence presented and consideration of the above factors, I find the
preponderance of the evidence fails to establish aggravating conduct. The unwarrantable failure
finding in this citation shall be deleted.

.··

.......

,.

.·

The citation, as modified, is affirmed.
Citation No. 7963333
This citation charges Alta Gold with the violation of 30 C.F.R. § 56.14100(b) for having
an unoperable front light and a rear light on the 580E Case backhoe. The citation stated injury
was unlikely; the violation was not S&S; and the negligence was high. The proposed penalty
was $800.00.
At the hearing Alta Gold withdrew its contest to the citation and offered no evidence; it
did not dispute liability and accepted the citation and the proposed penalty. Both the citation and
its proposed penalty are affirmed.
DOCKET NO. WEST 98-373-M
Citation No. 7963328
This citation charges Alta Gold with a S&S violation of 30 C.F.R. § 56.9301 and
proposed a penalty of$3,000.00.
The citation, item 8, describes the cited condition or practice as follows:

988

.·.·...

The loader operator (Biff Braman) was observed driving the 988F
loader over and on to the metal bumper block at the feed hopper
for the crusher. The bumper block had been buried with material
(dirt) and no longer served as a restraint. The hopper sits
approximately 60 feet above the ground level below. The hopper
was approximately 15 feet long by 15 feet wide and was full of
material. The dirt had become a ramp into the hopper and the
operator drove the loader up on top of it. This presented a hazard
ofloader overtraveling feed area.
The cited standard 30 C.F.R. § 56.9301. That standard reads as follows:

§ 56.9301 Dump site restraints.
Berms, bumper blocks, safety hooks, or similar impeding devices
shall be provided at dumping locations where there is a hazard of
overtravel or overturning.
The 998 front-end loader takes a bucketful of material from the stockpile and drives up to
the feeder hopper where the loader operator stops and dumps the load into the feed hopper. From
there the material travels, gravity fed, into the crusher below.
Inspector Cain testified the company designed the feed hopper with a three-foot high
metal bumper block. The bumper block has a three-foot high metal restraining bar. The threefoot high bar consisted of an eight inch diameter metal pipe. Its purpose is to prevent the frontend loader from overtraveling the spot where it dumps its load into the feed hopper. That area is
approximately 30 to 60 feet above the ground below. The purpose of the bumper block is to
prevent the loader from overtraveling and going into the feed hopper or even further on downhill,
which would result in serious injury to the operator.
At the time of the alleged violation, Inspector Cain and Mr. Stork were in the control
room next to the feed hopper. Cain testified he observed a loader that drove right up to the
feeder hopper area and kept going, traveling up on top of the bumper block where the driver
stopped the loader by using his brakes. Cain testified that he stepped out of the control room and
examined the area to see what the problem was. He found that material dropping from the frontend loader bucket had been allowed to accumulate over time until it made a ramp leading up to
and covering the three-foot high bumper block so there was nothing to impede the wheels of the
loader. The accumulation of material had buried the bumper block so it could no longer serve its
purpose as an impeding device.
Cain stated that when he observed the loader coming to stop on top of the bumper block,
he issued an imminent danger order. Management then asked what they could do to correct the
situation and continue with production. Cain told them they could install an adequate earth berm
989

to serve as a restraining or impeding device. To terminate the violation Alta Gold installed a
three-foot earth berm on top of the buried metal bumper block that reached mid-axle height of
the loader.
Mr. Stork's testimony as to the facts was different than that given by Inspector Cain.
Stork testified that the distance from the feed hopper to ground below was 31 feet 6 inches and
not 60 feet. Stork and Cain observed only one run of the loader to the feed hopper. Stork
testified that there was an earth berm on top of the metal bumper block. When the loader,
traveling too fast, came up to the feeder hopper, the loader bounced and came to a stop on top of
the "dirt berm" which the loader had "flattened out." Stork stepped out of the control room and
told the driver he was driving too fast. Stork also told him to get a bucketful of dirt to replace the
berm which the loader had flattened out. Stork stated that the metal bumper block referenced by
Cain in the citation was no longer in use at the time of the inspection. Management had decided
to bury it with earth and material and put a dirt berm on top of it. Thus the company, by design,
decided to use a dirt berm on top of the buried metal bumper block as an impeding device.
After Stork completed his testimony, Cain was called on redirect and testified there was
no earth berm on top of the metal bumper block which was buried. There was a little bit of dirt
over the top of the metal bar that you could wipe away with your shoe. He could see the top of
the metal bar that constituted the top portion of the buried metal bumper block.
On evaluation of the evidence I find, even under Respondent's testimony, that the socalled earthen berm was so unsubstantial that it was wiped out and cleaned off and had to be
"reestablished 10 to 15 times a day." (Tr. 25 1).
On evaluation of the evidence, I find there may have been some dirt on top of the buried
metal bumper block but not of sufficient substance to qualify as an impeding device, as that term
is used in the standard cited. I find that a preponderance of the evidence established the violation
of the cited standard 30 C.F.R. § 56.9301.
.".·::

Based on Irispector Cain's testimony I find that the Secretary established the four
elements of the Mathies formula for finding the violation is significant and substantial. I
therefore agree with Inspector Cain that the violation is S&S.
This citation, as modified, is affirmed.
Appropriate Civil Penalties
The Judge is required by Commission Rule 30, 29 C.F.R. § 2700.30, as well as by the
Mine Act itself, to consider the statutory criteria set forth in § 11 O(i) of the Mine Act in
determining the appropriate civil penalty to each violation.
Section 11 O(i) provides in relevant part:

990

.·'-·.

The Commission shall consider the operator's history of previous
violations, the appropriateness of such penalty t~ the size of the
business of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.
Size of Operator and Ability to Continue in Business
The parties stipulated at the hearing that Respondent, Alta Gold Company, with respect to
the size of its business, has a total of 189,712 man hours worked per year. Alta Gold Company
owns and operates the Griffon Project mine, which is a surface mine with 12,420 man hours
worked per year.
Based upon this stipulation of hours worked, I find the business of its operator medium
size. In addition, I find in the absence of any evidence to the contrary, that appropriate penalties
will not affect the operator's ability to continue in business.
Negligence
With respect to both contested violations, I find the negligence to be moderate. I find that
the operator was unaware that it was in violation of either standard. Perhaps the operator should
have known it was in violation but it did not. Management had good faith but a mistaken belief
that they were not in violation of the safety standard in either of the contested cases.
History of Previous Violations
Alta Gold's history of previous violations is not excessive. It was stipulated that in the 24
months preceding the issuance of the subject citations, Respondent has had 20 assessed
violations. There is no evidence that any of the violations established in this case were repeat
violations.
Gravity
The Commission stated that the gravity penalty criterion contained in § 11 O(i) of the
Mine Act requires an evaluation of the seriousness of the violations and that the focus of the
gravity criterion is on, "the effect of the hazard if it occurs" (Hubb Corp., 22 FMSHRC 606, 609
(May 2000) (quoting Consolidation Coal Co., 18 FMSHRC 1541, 1550 (September 1996). In
this case the hazard, fortunately, did not result in any injury whatsoever but the effect of the
hazard, if it occurred, would have been a serious injury or death. Consequently, the degree of
gravity in both violations is relatively high.

991

Good Faith and Rapid Compliance
I find the operator, withou~ question, demonstrated good faith in attempting and achieving
rapid compliance after notification of the violation with respect to both violations; there was
unhesitating, immediate compliance after notification of the violations.
On the basis of my foregoing findings and conclusions and my de novo consideration of
the civil penalty assessment criteria found in§ l lO(i) of the Act, I conclude and find that the
following penalty assessments are reasonable and appropriate for the violations that have been
affirmed in these proceedings:
Citation No.

30 C.F.R. Section

Assessment

7963330
7963333
7963328

58.9304(b)
56.14100(b)
56.9301

$1,200.00
800.00
1.500.00

TOTAL

$3,500.00

. ..

..

·.·

ORDER
Accordingly, it is ORDERED that Citation No. 7963330 be modified to amend the
negligence factor from "high" to "moderate" and to delete the unwarrantable failure finding. It is
further ORDERED that Citation No. 7963328 be modified to amend the "gravity" factor from
"highly likely" to "reasonably likely." The finding of a violation which is significant and
substantial is AFFIRMED in both Citation Nos. 7963330 and 7963328 and both citations, as
modified above, are AFF1RMED. It is further ORDERED that Citation No. 7963333, as
written, is also AFFIRMED. It is further ORDERED that Alta Gold pay the Secretary of Labor
a civil penalty of $3,500.00 within 30 days of this decision and order.

~1.-·J-c4; {!;it
st F. Cetti
inistrative Law Judge

992

Distribution:
Steven R. DeSmith, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St.,
Suite 111 0, San Francisco, CA 94105-2999 (Certified Mail)
Ross E. deLipkau, Esq., MARSHALL, HILL, CASSAS & deLIPKAU, 333 Holcomb Ave., Suite
300, P.O. Box 2790, Reno, NV 89305-2790 (Certified Mail)

/sh

993

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

August 23, 2000
CONTEST PROCEEDINGS

RAG CUMBERLAND RESOURCES LP,
Contestant

v.

Docket No. PENN 99-195-R
Order No. 7075043; 419199

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

Docket No. PENN 99-196-R
Citation No. 7075044; 4/9/99
Cumberland Mine
Mine ID 36-05018
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2000-134
A. C. No. 36-05018-04187

v.
Cumberland Mine
RAG CUMBERLAND RESOURCES
CORPORATION,
Respondent
DECISION
Appearances:.

R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh, Pennsylvania,
for the Contestant;
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania for the Respondent.

Before:

Judge Feldman

This contest proceeding, heard on April 25 through April 26, 2000, in Fairmont,
West Virginia, arose as a consequence of an April 9, 1999, incident that occurred at RAG
Cumberland Resources LP's (RAG's) Cumberland Mine. 1 The incident concerned a collision

1

The contestant has filed an unopposed motion to change the captioned contestant
from RAG Cumberland Resources Corporation, formerly Cyprus Cumberland Resources, to
RAG Cumberland Resources LP. The contestant's motion is granted. Reference herein to RAG
Cumberland Resources LP (RAG) includes reference to all of the predecessor corporate entities.
994

at a mantrip station involving two incoming mantrips that were coupled together, with a cricket
that was about to depart the station to travel into the mine. The. mantrips were operated by
Paul Taylor, an hourly employee, who, at the time of this incident, was completing his shift and
exiting the mine. The incident was observed by Mine Safety and Health Administration (MSHA)
Inspector James Conrad.
Upon witnessing this incident, Conrad issued 104(a) Citation No. 7075044 alleging a
significant and substantial (S&S) violation of a safeguard that requires mantrips to be controlled
within the limits of visibility. Conrad also issued 107(a) imminent danger Order No. 7075043
based on his belief that Paul Taylor had "a practice" of operating mantrips at unsafe speeds.
Section 3(j) of the Mine Act defines an imminent danger as "the existence of any
condition or practice in a coal or other mine which could reasonably be expected to cause death
or serious physical harm before such condition or practice can be abated .... " 30 U.S.C. §
802(j). Thus, a central issue in this proceeding is whether a miner's negligent act, once
completed, can provide a basis for the issuance of an imminent danger order under section 107(a)
of the Mine Act based on an MSHA inspector's belief that the miner's negligence will reoccur.
On July 7, 2000, the civil penalty proceeding concerning 104(a) Citation No. 707 5044
docketed as PENN 2000-134 was assigned to me for disposition. The Secretary seeks to impose
a civil penalty of $5,000 for Taylor's alleged failure to adequately control the mantrip. RAG has
filed a motion to consolidate PENN 2000-134 with the contest proceeding in PENN 99-196-R
challenging Citation No. 7075044. The Secretary does not oppose RAG's motion.
Good cause having been shown, the civil penalty matter in PENN 2000-134 IS HEREBY
CONSOLIDATED with the related contest matter in PENN 99-196-R, and a decision on the
merits of the Secretary's civil penalty proposal is contained herein.
The parties' proposed findings and conclusions have been considered in the disposition of
this matter. For the reasons discussed below, 107(a) imminent danger Order No. 7075043 shall
be vacated, and a reduced $2,400 civil penalty shall be imposed for 104(a) Citation No. 7075044.

I. Findings of Fact
On October 25, 1993, MSHA Inspector Frank Terrett, who is now retired, witnessed a
collision of haulage vehicles at the Cumberland Mine that was similar to the subject incident
witnessed by Conrad on April 9, 1999. At the time of the October 25, 1993, incident, Terrett was
sitting underground in a mantrip at the No. 3 Portal waiting to enter the mine to perform a routine

995

inspection. The No. 3 Portal was a heavily traveled area where mantrips entered and exited the
mine. The maximum speed of a mantrip traveling on level ground is approximately 15 miles per
hour. (Tr. 207).2 While waiting to enter the mine, Terrett's mantrip was struck by an incoming
mantrip that was traveling at an excessive speed. Terrett sustained a neck injury as a result of the
collision that required him to "wear a neck brace for a week." (Tr. 48).
As a result of the October 25, 1993, incident, Terrett issued Notice to Provide Safeguard
No. 3655679 for the Cumberland Mine. The safeguard stated that all mantrips shall be operated
at speeds consistent with the conditions and the equipment used, and that mantrips shall be
controlled so that they can be stopped within the limits of visibility. (Gov. Ex. 5).
These matters concern a similar mantrip incident that occurred at the Cumberland Mine at
the beginning of the day shift on April 9, 1999, approximately 5Yi years after the incident
involving inspector Terrett. On the morning of April 9, 1999, an inspection party consisting of
MSHA Inspector James Conrad, Michael Konosky, the company safety representative, and
Lloyd Blair, the union safety representative, entered the mine using the elevator at the No. 6
Portal. (Tr. 78-80). They proceeded a short distance along the manway to the haulage track
where they intended to obtain transportation into the mine. (Tr. 78; Joint Ex. 2). A second
inspection party, consisting of MSHA Inspector Joe Hardy, company representative Pat Maher,
and miner representative Randy Bedilion, followed behind Conrad's party. (Tr. 261, 265).
Both the No. 3 and No. 6 Portals are used to provide access into the mine. However,
since 1966 the No. 6 Portal area, a relatively new area, has been the main portal where the
majority of the miners enter the mine. (Tr. 146-7). The No. 6 Portal was designed so that
mine vehicles would travel a loop off the main haulage in order to load and unload passengers.
(Tr. 146-7, 403-4). The area around the No. 6 mantrip portal station where miners enter and exit
track vehicles is relatively flat. (K. 9). To arrive at the station, vehicles traveled up a hill from
the main haulage. (K. 9, 14). Unlike the No. 6 Portal, the No. 3 Portal, which was previously
used as the primary entry to the mine, had no such loop, and mine vehicles loaded and unloaded
right on the main haulage. (Tr. 147).
On April 9, 1999, a portion of the loop off the main haulage was closed in order to install
additional support to the ribs (Tr. 215, 360; Joint Ex. 2). For that reason, mine vehicles traveled
the short distance to and from the main haulage using track that approached the station as both
incoming and outgoing track. Id.

·.. :·

.....
"·

...
··:::
2

References to the hearing transcript are designated by "Tr." followed by the page
number. Michael Konosky was unable to attend the hearing due to a death in the family. The
record was kept open so that Konosky could be deposed. Konosky was deposed on June 14,
2000. References to the Konosky deposition transcript are designated by"''K." followed by the
page number.
996

The No. 6 Portal is an area of high congestion during shift changes. For example, 100
miners work the midnight shift, and 125 miners are assigned to _the day shift. (Tr. 235). Between
7:30 a.m. and 9:30 a.m., the crews on the departing midnight shift and the arriving day shift
arrive at the station at staggered intervals to reduce the traffic in the No. 6 bottom area. (Tr. 104,
147, 271, 288). Thus, the Cumberland Mine uses a "hot seat" changeout system for its
production crews, i.e., the crew going off shift does not leave the producing section until the
oncoming crew arrives at the section. (Tr. 104 107). The crews coming out of the mine arrive at
the No. 6 bottom at different times depending on the length oftime it takes to travel from their
work areas. (Tr. 107; K: 10).
Mine inspectors generally wait until after 9:00 a.m. in the morning to enter the mine when
congestion eases at the No. 6 Portal. (Tr. 109, 421). When Conrad, Konosky and Blair arrived at
the No. 6 Portal at approximately 9:00 a.m. on April 9, 1999, there was no mine vehicle parked
at the mantrip station. Konosky went to get a mine jeep or "cricket" from a battery charging
station. (Tr. 78-9). Konosky returned with a cricket and pulled into the curve where mantrips
load and unload. (K.1 O; Joint Ex. 2). He observed two mantrips coupled together coming up
from the main haulage. (K. 10). He thought the mantrips might be traveling too fast so he
flagged them with his light. (K. 11 ). When he did not get an immediate response, Konosky
quickly exited from the cricket in case the mantrip collided with the cricket. (K. 11 ). Konosky
first sought safety in a manhole before going to ari area behind a set of concrete block piers at the
entrance to the portal entry where Conrad and others were waiting. (Tr. 276; K. 11). The cricket
was capable of rolling if bumped because Konosky had not set the brakes on the cricket. (K. 11).
The approaching mantrips were coupled together because the battery in the second
mantrip was low. (Tr. 357). The front mantrip was operated by Paul Taylor, an hourly employee
(Tr. 83-4, 209, 271). The other miners on the crew were in the front mantrip. (Tr. 358). A
foreman, Joe Kushner, was in the operator's seat of the second mantrip. (Tr. 83-4, 209, 271).
Although Kushner could apply the brakes on the second mantrip to slow the coupled vehicles,
Kushner's vision was obscured by the front mantrip. Thus, the cricket could not be seen from the
second mantrip. (Tr. 277, 364). In this regard, Conrad testified Kushner was not aware that
Taylor had hit the jeep although Kushner apparently was aware that something had happened.
(Tr. 160). Consequently, Kushner relied on Taylor to avoid colliding with other vehicles as their
mantrips approached the station.
Konosky and union representatives Blair and Bedilion observed the mantrips as they
entered the station. They all agreed the mantrips were going "too fast." (Tr. 263, 265, 276;
K. 21; Gov. Ex. 12). For example, Konosky stated the mantrips were traveling "a little bit too
fast," and, " ... they were coming fast enough .... I flagged him and he kept on coming, so I got
off the motor and got.in the clear." (K. 11, 21). Blair testified Konosky told him that he knew
the mantrips were not going to stop so he "bailed off' the jeep. (Tr. 205-06). Safety manager
Robert Bohach also stated that Konosky told him he "bailed out" of the jeep. (Tr. 414). Bohach
admitted Konosky probably did so to avoid injury. (Tr. 414-15).

997

As the mantrips reached the unloading point they contacted the cricket causing it to roll
down the track. The cricket is approximately 10 feet long. Konosky estimated the cricket rolled
one length, or approximately 10 feet. (K. 11). Blair and Bedilion's contemporaneous notes
reflect the jeep traveled approximately 3 lengths, or 30 feet after being struck. (Tr. 178, 265,
292-93, 360-61, 405; Gov. Ex. 12). Conrad testified that the mantrip had"... struck [the jeep)
violently ... and Mr. Konosky had exited the jeep at a faster than normal speed in order to get
off the jeep so he would not be in the vehicle whenever it was struck." (Tr. 80-81 ).
No one was injured as a result of the collision, and neither the cricket nor the mantrips
sustained any damage. (Tr. 174, 209, 219, 405). The cricket is rated as a one ton vehicle. The
coupled mantrips are considerably larger and are each rated as five ton vehicles. (Tr. 208-09).
Given the disparity in the vehicles' size, apparently the miners riding with Taylor in the first
mantrip, and Kushner riding in the second mantrip, were not immediately aware that the cricket
had been struck until it was brought to their attention. (Tr. 161, 209-10, 363-4; Gov. Ex. 18,
pp. 7-8).
As Taylor exited the mantrip, Conrad observed Konosky approach Taylor to admonish
him about the collision. Conrad and Konosky are related by marriage. Their wives are sisters.
Thus, Conrad and Konosky are brother-in-laws. (Tr. 200). Taylor responded to Konosky with
profanity and said he was going home. (Tr. 81, 159, 219, 271; K. 14-15). Conrad, having
observed this incident from behind the piers in the manway, was upset by Taylor's attitude
towards his brother-in-law. (Tr. 82). Conrad testified:

...

~

.

The men that were in the mantrip that was coming into the bottom that stuck the
cricket, especially the operator, he jumped off the motor and proceeded [from] the
mantrip. Mr. Konosky questioned [Taylor] as to what he was doing. And
[Taylor], the operator, came back with obscenities and continued on towards the
mine bottom.
There wa8 nobody that asked any questions as to whether anybody was hurt.
Everybody piled out and continued on over to the elevator. Nobody was
concerned with whether or not people were injured or whether or not anybody was
involved or what condition they were in. There seemed to be no remorse at all as
far as the actions they took or what had transpired, and they proceeded out.
Because of the fact that I was very, very upset with the situation as far as the way
the people responded, we traveled up the elevator to the surface and proceeded to
go to the mine office.
(Tr. 81).
Conrad accompanied Konosky on the elevator to the surface and he asked Kono sky if he
would "take care of' the situation. (Tr. 81, K. 15). Conrad went to the inine foreman's office
where he issued to Konosky an imminent danger order and an accompan}'ing citation.

998

.....

·.-...

hnminent danger Order No. 7075043, was issued pursuant to Section 107(a) of the Act,
30 U.S.C. § 817(a). Under the heading "Condition or Practice" ~he Order alleged as follows:
The following practice constitutes an imminent danger.
Two man trip motors coupled together and being approached
by the midnight crews off of the midnight shift approached the
No. 6 shaft man trip station at an unusual high rate of speed
where (people] regularly load and unload man trips. Several
persons where standing around in the area at the time the man
trip started around the corner where the cement piers are located
and struck a jeep that was parked there. The two man-trip motors
had approximately 10 people in them when they struck the jeep.
(75.1403-7(f) citation issued) The two man-trip motors were not
being operated at a safe speed when approaching the No. 6 mantrip station or were not being controlled so as to stop the motors
within the limits of viability [sic] before striking another vehicle.
(Gov. Ex. 6).
The only basis for Conrad's issuance of imminent danger Order No. 7075043 was
Taylor's operation of the mantrip on the morning of April 9, 1999. (Tr. 164-6, 184; Gov. Ex. 6).
Conrad did not interview Taylor or Kushner, or obtain any information from mine management
prior to issuing the 107(a) imminent danger order. (Tr. 159). In addition, Conrad had never seen
Taylor operate a mantrip before. Id. Despite Conrad's lack of knowledge about Taylor's past
behavior, Conrad concluded Taylor's failure to control the mantrip was representative of Taylor's
normal manner of operation "because of the way (Taylor] responded in this situation." (Tr. 159,
165-6). Thus, Conrad's belief that Taylor had a practice of operating mantrips at excessive
speeds was based on Taylor's lack of contrition and remorse. (81-85; 166).
On April 9, 1999, Conrad also issued Citation No. 7075044, pursuant to Section 104(a)
of the Act, 30 U.S.C. § 814(a). It alleged an S&S violation of the provisions of30 C.F.R. §
75.1403-7(f) concerning safeguards that was attributable to moderate negligence. Citation No.
7075044 stated:
The following condition was a contributing factor to
immanent (sic) danger Order No. 7075043 issued on
April 9, 1999. Two man-trip motors that were coupled
together approached the No. 6 air shaft man-trip station.
They approached at a rate of speed that could not be
controlled and/or stopped within the limits of viability
(sic). The man-trips, with approximately 10 people in
them from the midnight shift, stuck (sic) a jeep that was
999

parked on the comer.
There is no abetment (sic) time fixed to this citation since
it is part of the order.
(Gov. Ex. 7).
Initially, Citation No. 7075044 did not cite the safeguard on which it was based. Conrad
modified Citation No. 7075044 on April 22, 1999, to reflect the citation was based on a violation
of safeguard No. 3655679 issued as a result of the October 25, 1993, incident involving MSHA
Inspector Frank Terrett discussed above. (Gov. Ex. 7). Safeguard No. 3655679 states:
The #112 Track mounted self-propelled personnel carrier
was not being operated at a safe speed. The #112
personnel carrier was enroute to the bottom at the end
of [the] shift with 10 persons aboard when it hit into
mantrip parked at bottom for men to enter mine.
This is a notice to provide safeguard that all trips
including trailers and sleds shall be operated at speeds
consistent with conditions and the equipment used,
and shall be so controlled that they can be stopped
within the limits of visibility.
(Gov. Ex. 5).
RAG filed its Notice of Contest for Citation No. 7075044 on May 10, 1999. Following
RAG's contest, after consultation with the Secretary's counsel, on August 19, 1999, Conrad
again modified Citation No. 7075044 to increase RAG's degree of negligence from moderate to
high. (Tr. 16~; Gov. Ex. 7). Conrad based the increase in culpability "upon further review of
previous haulage incidents and accidents that have occurred at this mine and within the industry"
(Gov. Ex. 7). Conrad testified he believed the history of haulage incidents at the Cumberland
Mine appeared to be "a little bit higher than normal." (Tr. 110, 168). However, Conrad admitted
he did not compare the history of haulage incidents at the Cumberland Mine with other mines.
(Tr. 168). Notwithstanding the October 1993 incident involving Terrett, there is no evidence of a
reportable injury from a haulage.collision at the Cumberland Mine since Terrett's safeguard was
issued in 1993. (Tr. 171-72; Gov. Ex. 9).
Despite MSHA's assertion that there was a continuing condition or practice of unsafe
operation ofmantrips, RAG was not cited for any violation of the subject safeguard during the
intervening 5Yi year period beginning with its issuance by Terrett on October 23, 1993, until the
Taylor incident on April 9, 1999. (Joint Stip., Nos. 17-18). The absence of a relevant history of
violations is particularly significant in view ofMSHA's admitted continuing presence at the

1000

.:::

i:.·

•.

Cumberland Mine .during regular triple A quarterly inspections during which time inspectors
would regularly ride track vehicles departing from portal stations.
Finally, three day disciplinary suspensions were imposed on Taylor and Kushner for
their roles in the April 9, 1999, incident. (Tr. 364). Similarly, the miners responsible for the
October 1993 incident involving Terrett were also suspended for three days shortly after the
collision described in Terrett's safeguard. (Gov. Ex. 3). In the past, RAG has disciplined other
miners for violation of its haulage safety policies, and it has posted safety messages on haulage
practices for personnel training. (Tr. 398-401; Gov. Bxs. 2, 3).
II. Further Findings and Conclusions
A. Imminent Danger Order No. Order No. 7075043
hnminent danger Order No. 7075043 was issued pursuant to section 107(a) of the Mine
Act. Section 107(a) provides:
If, upon any inspection or investigation of a coal or other mine
which is subject to this act, an authorized representative of the
Secretary finds that an imminent danger exists, such representative
shall determine the extent of the area of such mine throughout
which the danger exists, and issue an order requiring the operator
of such mine to cause all persons, except those referred to in
Section 104(c), to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the
Secretary determines that such an imminent danger and the
conditions or practices which caused such imminent danger no
longer exist. The issuance of an order under this subsection shall
.not preclude the issuance of a citation under Section 104 or the
proposing of a penalty under section 110. (Emphasis added).

As a threshold matter, neither the Secretary, nor the evidence, suggests RAG had a policy
or practice of reckless mantrip operation, or otherwise encouraged or condoned such operation.
In this regard, union representatives Blair, Riggi and Bedilion all testified they were regular
operators of mantrips, and that they operated mantrips safely. (Tr. 221, 223 237, 247, 274, 29798). Although Blair, Riggi and Bedilion opined some miners operate mantrips too fast, Conrad's
testimony reflects the imminent danger order was directed exclusively at Taylor.
Assuming, solely for the sake of argument, that the aftermath of Taylor's mantrip
operation, i.e., a person's completed negligent act, can constitute an imminent danger, the plain
statutory language requires the continued exposure of miners to a hazardous "condition or
practice" in order to warrant the issuance of an imminent danger order. In this regard, section
30) of the Mine Act defines an imminent danger as "the existence of any condition or practice in
1001

a coal or-other mine which could reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated ...." 30 U.S._C. § 802(j) (emphasis added).
In Wyoming Fuel Company , 14 FMSHRC 1282 (August 1992), the Commission stated
the appropriate analysis for determining the validity of an imminent danger order is whether the
preponderance of the evidence shows" ... that the condition or practices, as observed by the
inspectors, could reasonably be expected to cause death or serious physical harm, before the
conditions or practic~s could be eliminated." 14 FMSHRC at 1291. In Wyoming Fuel, the
Commission noted that-there must be a degree of imminence to support a 107(a) order noting that
the word "imminent" is defined as "ready to take place: near at hand: impending . ..: hanging
threateningly over one's head: menacingly near." Id. at 1290 citing Utah Power & Light Co.,
13 FMSHRC 1617, 1621 (October 1991).
In view of the potential imminence of danger, the Commission has repeatedly recognized
that an inspector must be accorded considerable discretion in determining whether to issue a
107(a) withdrawal order because "an inspector must act with dispatch to eliminate conditions
that create an imminent danger." 14 FMSHRC at 1291 (citations omitted). However, although
far reaching, an inspector's discretion to issue 107(a) orders is not unfettered. Rather, the
apparent imminence of danger is a prerequisite to empowering the inspector with the broad
discretion to issue 107(a) withdrawal orders.
Here, even if we assume Taylor was inclined to strike other vehicles, the inescapable fact
is that, at the time of the alleged imminent danger, Taylor had exited the mantrip to depart from
the mine at the end of his shift. Taylor was not scheduled to return to the Cumberland Mine for
at least 16 hours. Thus, at the time Conrad issued the imminent danger order at 8:40 a.m. on
April 9, 1999, Taylor's alleged "practice" of recklessly operating mantrips posed a hazard to
no one because Taylor had already exited the mine for the surface. The imminent danger was
abated 50 minutes later at 9:30 a.m. after Taylor and Kushner were instructed about the safe
operation ofmantrips. (Gov. Ex. 6). However, there was no continuing threat to miners during
the interim 50 minute period from 8:40 a.m. through 9:30 a.m. given Taylor's departure from the
mine. Thus, Conrad's issuance of 107(a) Order No. 7075043 constituted an abuse of discretion.
The above discussion assumed, for the sake of argument, that Taylor's conduct was
properly characterized as a "condition or practice." However, if a miner's negligent act, once
completed, could provide the basis for an imminent danger solely on the assumption that his
negligence will reoccur, virtually any violation of the Secretary's mandatory safety standards
could be characterized as an imminent danger. Like the boy who cried wolf, such an approach
trivializes the rationale for section 107(a), and, in so doing, undermines the Secretary's authority
to issue imminent danger orders.

1002

Finally, I do not question inspector Conrad's sincerity. In the heat of the moment, Conrad
understandably was upset over Taylor's apparent lack of contrition, particularly in view of his
brother-in-law's exposure to potential injury. However, it is difficult to understand why
the Secretary, despite the benefit of hindsight, continues to adhere to her assertion that the
circumstances in this case constitute a violation of section 107(a).3 Accordingly, 107(a)
imminent danger Order No. 7075043 shall be vacated.
B. 104(a) Citation No. 7075044
a. Fact of Violation

In Southern Ohio Coal Company, 14 FMSHRC 1(January1992), the Commission
addressed the statutory and regulatory basis for the Secretary's general authority to issue
safeguards pursuant to the criteria governing safeguards in sections 75.1403-2 through
751403-11. The Commission stated:
A safeguard may be issued to minimize transportation hazards only in
underground coal mines. An inspector's decision to issue a notice to provide
safeguards must be based on his consideration of the specific conditions at the
particular mine. The requirement that the inspector identify a specific
transportation hazard at a mine before issuing a safeguard flows from the language
of section 3 l 4(b), authorizing the issuance of a safeguard that is "adequate, in the
judgment of an authorized representative of the Secretary," to minimize a
transportation hazard. (Emphasis in original). Section 7 5 .1403-1 (a) further
clarifies that consideration of the specific conditions giving rise to a hazard
requires inspectors to issue safeguards on a mine-by-mine basis. Further,
safeguards may be enforced at a mine only after the operator is advised in writing
that a specific safeguard will be required as of a specified date. Section 75. 1403l(b). MSHA's current Program Policy Manual ("Manual") states that the criteria
of sections· 75.1403:..2 through -11 are not mandatory standards:
It must be remembered that these criteria are not mandatory. If an
authorized representative of ~he Secretary determines that a
transportation hazard exists and the hazard is not covered by a

3 The Secretary does not assert that RAG had "a practice" of operating mantrips at

unsafe speeds. Rather, the thrust of the Secretary's case is that Taylor was the imminent danger.
While the Secretary could have argued that Taylor's conduct constituted an unwarrantable failure
warranting a 104(d) withdrawal order, there is no statutory authority under section 107(a) for
designating an individual as an imminent danger.
1003

m~datory regulation, the authorized representative must issue a

safeguard notice, allowing time to comply befor~ a 104(a) citation
can be issued ....
Manual, Volume 5, Part 75, pp. 125-26.

14 FMSHRC at 7 (footnote omitted).
<..

An inspector's use of the safeguard provision is not limited by the statute, the regulations,
or the Policy Manual to hazards that are "unique" or "peculiar" to a mine. Id. Rather, a
safeguard is valid so long as it addresses specific conditions at a particular mine, regardless of
whether similar safeguards are issued at other mines. Id. at 14.
'·

104(a) Citation No. 7075044 alleges an S&S violation of the provisions of 30 C.F.R.
§ 75.1403-7(f) concerning safeguards. Citation No. 7075044 states:
The following condition was a contributing factor to an
immanent (sic) danger Order No. 7075043 issued on
April 9, 1999. Two man trip motors that were coupled
together approached the No. 6 air shaft man trip station.
They approached at a rate ofspeed that could not be
controlled and/or stopped within the limits of viability
(sic). The man trips, with approximately 10 people in
them from the midnight shift, stuck (sic) a jeep that was
parked on the corner.
There is no abetment (sic) time fixed to this citation since
it is part of the order.
(Gov. Ex. 7) (emphasis added).
Initially, Citation No. 7075044 did not cite the safeguard on which it was based. As
previously noted, Citation No. 7075044 was modified on April 22, 1999, to reflect the citation
was based on a violation of safeguard No. 3655679 issued as a result of the October 25, 1993,
incident involving inspector Terrett. (Gov. Ex. 7). Safeguard No. 3655679 states:
The #112 Track mounted self propelled personnel carrier
was not being operated at a safe speed. The #112
personnel carrier was enroute to the bottom at the end
of [the] shift with 10 persons aboard when it hit into
mantrip parked at bottom for men to enter mine.
This is a notice to provide safeguard that all trips
.··.

1004

including trailers and sleds shall be operated at speeds
consistent with conditions and the equipment used,
and shall be so controlled that they can be stopped
within the limits of visibility.
(Gov. Ex. 5) (emphasis added).
The thrust of the cited safeguard is that mine vehicles should be operated at speeds
commensurate with the limits of visibility. Terrett's safeguard was issued as a consequence of
the October 25, 1993, incident that occurred in the No. 3 Portal where the same haulage track
was used for both incoming and outgoing mine vehicles. Similarly, the April 9, 1999, incident
observed by Conrad occurred when the No. 6 Portal track temporarily was used for both
incoming and outgoing traffic because incoming traffic was diverted as a consequence of rib
maintenance in the incoming track entry. Obviously, an incoming vehicle approaching a station
containing a parked vehicle must be operated in a controlled manner to avoid the hazards
associated with a head-on collision. Taylor's failure to avoid contact by his two 5 ton rated
mantrips with the considerably lighter cricket clearly constitutes a violation of the cited
October 25, 1993, safeguard. Thus, the Secretary has prevailed on the issue of the fact of the
violation cited in 104(a) Citation No. 7075044.
b. Significant and Substantial
A violation is properly designated as S&S in nature if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to by
the violation will result in an injury or an illness of a reasonably serious nature. Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). ill Mathies Coal Co.,
6 FMSHRC 1 (January 1984), the Commission explained:
In orde}:" to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to [by the violation] will
result in an injury; and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious.nature. 6 FMSHRC at 3-4.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th Cir. 1988), affg 9 FMSHRC
2015, 2021 (December 1987) (approving Mathies criteria).
ill United States Steel Mining, Inc., 7 FMSHRC 1125, 1129, (August 1985), the
Commission explained its Mathies criteria as follows:

1005

We have explained further that the third element of the Mathies formula 'requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury.' U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984).

..
-~·:::

Resolution of whether a particular violation of a mandatory safety standard is S&S
in nature must be made assuming continued normal mining operations. U.S. Steel Mining,
7 FMSHRC 1125, 1130 (August 1985). Thus, consideration must be given to, both the time
frame that a violative condition existed prior to the issuance of citation, and the time that
it would have existed if normal mining operations had continued. Bellefonte Lin:ze Co.,
20 FMSHRC 1250 (November 1998); Halfway, Inc, 8 FMSHRC 8, 12 (January 1986).
Turning to the S&S Mathies criteria, the first element of Mathies is satisfied since, as
noted above, Taylor's failure to control his mantrip constituted a violation of the cited safeguard.
Furthermore, the collision of two five-ton vehicles with a stationary one ton-vehicle clearly
exposes occupants of both vehicles, particulary occupants of the stationary lighter vehicle, to a
measure of danger. Thus, the second element of Mathies is also met.
The remaining Mathies criteria require the Secretary to demonstrate, by a preponderance
of the evidence, that there is a reasonable likelihood of serious injury occurring as a result of the
hazard contributed to by the cited violative condition or practice. Peabody Coal Company,
17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996).
Common sense suggests that it is reasonably likely that the transfer of energy from moving,
coupled, ten-ton rated mantrips to a stationary one-ton cricket, even at a relatively slow speed,
will result in serious musculoskeletal injury to the neck, back or limbs of occupants in the
lighter, stationary vehicle. Konosky's own testimony reflects he "bailed out" of the cricket in
fear for his safety:
The likelihood of serious injury is further reflected by the approximate 30 feet distance
the cricket traveled after it was struck by the mantrip. Finally, the neck injuries sustained by
Terrett as a result of the October 25, 1993, incident demonstrate the likelihood that serious
injury will result from the collision hazard contributed to by the subject safeguard violation.
Accordingly, the Secretary's S&S designation in 104(a) Citation No. 7075044 shall be affirmed.
III. Civil Penalty
It is well settled that the Commission assesses civil penalties de nova and is not bound by
the Secretary's proposed assessments. Topper Coal Co., 20 FMSHRC 344, 350 n.8 (April
1998); Sellersburg Stone Co., 5 FMSHRC 287, 291, (March 1983), aff'd 736 F.2d 1147
(71h Cir. 1984). In determining the appropriate civil penalty to be assessed, Commission Rule 30,

(:?

1006
......

29 C.F.R.- § 2700.30, requires the Judge to consider the statutory criteria set forth in 11 O(i) of
the Mine Act, 30 U.S.C. § 820(i). Section 11 O(i) provides, in p~rtinent part, in assessing civil
penalties:
the Commission shall consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a
violation.
a. Size of Operator and Ability to Remain in Business
The parties have stipulated that RAG and its affiliated companies produced over
78.9 million tons ofbituminous coal, 6.3 million tons of which was produced at the
Cumberland Mine. (Joint Stip.). Thus, RAG is a large mine operator and the imposition of
a civil penalty in this matter will not affect RA G's ability to remain in business.
b. Negligence
With respect to negligence, it is noteworthy that the safeguard violation cited in 104(a)
Citation No. 7075044 was initially attributed to RAG's moderate negligence. The citation was
modified to reflect culpability of high negligence in contemplation oflitigation after RAG
contested the Citation. While the Secretary may modify a citation after it is contested, the
Secretary bears the burden of demonstrating the modification is supported by the evidence. Here
Conrad testified the increase in the degree of the operator's negligence was based on the history
of haulage accidents at the Cumberland Mine that appeared to be "a little bit higher than normal."
However, Conrad conceded he did not compare the history of haulage accidents at the
Cumberland Mine with other mines. Moreover, the history of haulage incidents at the
Cumberland mine·does not reflect a significant history of accidents attributable to excessive
speed.
The Mine Act is a strict liability statute. Thus, operators are strictly liable for their
employees' violative conduct. Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (March
1988), aff'd on other grounds, 870 F.2d 711 (D.C. Cir. 1989); Asarco, Inc., 8 FMSHRC 1632,
1634-36 (November 1986), aff'd, 868 F.2d 1195 (10th Cir. 1989); Southern Ohio Coal Co., 4
FMSHRC 1459, 1462 (August 1982) ("SOCCO"). Thus, while it is true that hourly employee
Taylor's conduct, for which a three day suspension was imposed, evidenced a significant degree
of negligence given the two-way nature of the track, and the high traffic in the vicinity of the
No. 6 Portal, it does not necessarily follow that Taylor's negligence must be imputed to RAG .
. :.

1007

..

. ": ·· ...

Once liability is determined, the negligent actions of an operator's "agent"5 are
imputable to the operator for the purpose of assessing civil penalties. Mettiki Coal Corporation,
13 FMSHRC 760, 772(May1991); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 19498; .(February 1991); SOCCO, 4 FMSHRC at 1463-64. However, "[t]he conduct of a rank-andfile miner is not imputable to the operator in determining negligence for penalty purposes." Fort
Scott Fertilizer-Cullar, Inc., 17 FMSHRC 1112, 1116 (July 1995). ''Rather, the operator's
supervision, training, and disciplining of [rank-and-file] miners is relevant." Id. citing SOCCO,
4 FMSHRC at 1464;.Westem Fuels-Utah, Inc., 10 FMSHRC 256, 261(March1988).
There is no evidence that Taylor was serving in a management capacity at the time of the
April 9, 1999, incident. Moreover, although foreman Kushner was operating the second mantrip
that was coupled with Taylor's mantrip, Conrad admitted that Kushner could not see the cricket
as the mantirps approached the station because Kushner' s vision was obscured. In fact, Comad
concluded Kushner was not even aware of the collision although he knew "something" had
happened. Since Kushner could not have anticipated the collision, or known that Taylor was not
in control of the mantrip, there is no basis for imputing Taylor's negligence based on inadequate
superv1s1on.
Moreover, there is no evidence of inadequate training or discipline of RAG's miners in
view of Taylor's three day suspension, and RAG's history of posting safety notices on the proper
methods of operating haulage vehicles. Although the Secretary presented testimony by safety
committeemen that Taylor purportedly had a tendency of operating mantrips, that have a
maximum speed of approximately 15 miles an hour on level ground, "too fast," there is no
evidence of any history of haulage accidents or relevant citations involving Taylor. Accordingly,
there is no basis for imputing Taylor's negligence to RAG. Consequently, a low degree of
negligence is the appropriate degree of negligence that should be attributable to RAG for the
cited safeguard violation .

···

. c. Gravity
The gravity penalty criteria contained in section 11 O(i) requires an evaluation of the
seriousness of the violation. Hubb Corporation, 22 FMSHRC 606, 609 (May 2000) citing
Consolidation Coal Co., 18 FMSHRC 1541, 1549(September1996); Sellersburg, 5 FMSHRC at
294-95. In evaluating the seriousness of a violation, the Commission focuses on "the affect of a
hazard if it occurs." Consolidation Coal Co., 18 FMSHRC at 1550. Here, it is reasonably likely
that serious injury will occur to the occupants of haulage vehicles if incoming mantrips collide
with stationary vehicles waiting to depart portal stations. Consequently, the cited violation is
serious in gravity.

5

Section 3(e) of the Mine Act defines "agent" as "any person charged with responsibility
for the operation of all or a part of a .. . mine or the supervision of the miners in a ... mine ... "
30 U.S.C. § 802(e).
1008

·"

d. History of Previous Violations
During the two year period preceding the subject violation from April 9, 1997, through
April 8, 1999, approximately 600 violations were cited at the Cumberland Mine. Of these 600
violations, approximately 60 violations were for safeguard infractions of section 75.1403. The
majority of these safeguard violations were designated as non-S&S. In applying the history of
prior violations penalty criterion, the Commission has noted that it is the operator's general
history of violations, not just its history of similar violations, that should be considered. Cantera
Green, 22 FMSHRC 616, 623 (May 2000) (citations omitted). The history of approximately 600
violations cited at the Cumberland Mine during the approximate 24 month period preceding the
issuance of the subject 104(a) citation on April 9, 1999, constitutes an extensive violative history.
e. Good Faith Efforts at Abatement
There is no evidence to suggest that RAG did not timely abate the cited safeguard
violation.
In summary, invalidating the alleged inuninent danger condition, and lowering the degree
of negligence attributable to RAG, are factors that justify a reduction in civil penalty. However,
the history of excessive violations at the Cumberland Mine is an aggravating factor. Thus, on
balance, the Secretary's proposed $5,000 civil penalty shall be reduced to $2,400.

ORDER
Accordingly, IT IS ORDERED that 107(a) imminent danger Order No. 7075043
IS VACATED. Consequently, the contest in Docket No. PENN 99-195-R IS GRANTED.

IT IS FURTHER ORDERED 104(a) Citation No. 7075044 IS MODIFIED to reflect
the degree of negligence associated with the cited violation is low. IT IS FURTHER
ORDERED that 104(a) Citation No. 7075044, as modified, IS AFFIRMED. Consequently, the
contest in Docket No. PENN 99-196-R IS DENIED.

1009

IT IS FURTHER ORDERED that RAG Cumberland Resources LP SHALL PAY a
civil penalty of $2,400 in satisfaction of 104(a) Citation No. ·1075044. Payment shall be made
within 40 days of the date of this decision. Upon timely payment of the $2,400 civil penalty,
IT IS ORDERED that the contest proceedings in Docket Nos. PENN 99-195-R and PENN 99196-R, and the civil penalty matter in Docket No. PENN 2000-134, ARE DISMISSED.

·r-n-0

-G··~ ~---::;.___ _

Jerold Feldman
Administrative Law Judge

...

;.: .

.·

Distribution:

R Henry Moore, Esq., Buchanan Ingersoll Professional Corporation, One Oxford Centre,
301 Grant St., 20th Floor, Pittsburgh, PA 15219 (Certified Mail)

'.'·

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East, The
Curtis Center, 170 Independence Mall West, Philadelphia, PA 19106-3306 (Certified Mail)
/mh

....
. ..

...
...........

1010

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

August 28, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of CURTIS STAHL,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 2000-242-DM
MSHA Case No. WE MD 98-18

v.
Belle Vista Pit
A & K EARTH MOVERS, INC.,
Respondent

Mine ID 26-02046

DECISION
Appearances: Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, and Christopher B. Wilkinson, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California, for Complainant;
Richard L. Elmore, Esq., Hale, Lane, Peek, Dennison, Howard & Anderson,
Reno, Nevada, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Complaint of Discrimination brought by the Secretary of
Labor, acting through her Mine Safety and Health Administration (MSHA), on behalf of Curtis
Stahl, against A & K Earthmovers, Inc., pursuant to section 105(c) of the Federal Mine Safety
and Health Act of -1977, 30 U.S.C. § 815(c). A hearing was held in Sparks, Nevada on August
15, 2000. For the reasons set forth below, I approve the settlement agreement offered by the
parties at the hearing.
The parties announced at the outset o~ the hearing that they had agreed to settle this case
and all other pending cases between the Secretary and A & K. 1 With regard to Stahl, the
agreement provides that: (1) A & K will pay him $15,000.00 in complete satisfaction of any and
all claims he has against the company; (2) Stahl waives his claim for permanent reinstatement;

1

The other cases are a discrimination complaint filed against the company by Eleuterio
Jacinto, Case No. WE MD 98-18; a civil penalty case, Docket No. WEST 99-43-M; and two
1 lO(c), 30 U.S.C. § 820(c), cases against A & K supervisors, Joe Hess, Docket No. WEST 2000216-M, and Bryan Wade, Docket No. WEST 2000-200-M. With the exception of the
discrimination case, all of the cases are pending before Judge Cetti.
1011

(3) A & K will amend Stahl's employment records to delete any reference to his termination and,
on inquiry from third parties, will provide only his dates of employment; and (4) Stahl's
temporary reinstatement terminates as of the date of the hearing. As part of the agreement, the
Secretary also agreed to dismiss the civil penalty proceeding filed in connection with the
discrimination complaint.

::....~·

After assuring that all parties understood, and agreed to, the settlement, I accepted the
agreement finding that it was both appropriate under the Act and in the public interest. (Tr. 8-11)

Order
Accordingly, the motion for approval of settlement is GRANTED and the parties are
ORDERED to cany out their obligations as set out in the agreement. It is FURTHER
ORDERED that the Order of Temporary Reinstatement, issued on February 18, 2000, in Docket
No. WEST 2000-145-DM,2 is DISSOLVED, nunc pro tune, on August 15, 2000. It is
FURTHER ORDERED that this proceeding is DISMISSED with prejudice.

~~~

.. .

Administrative Law Judge

Distribution: (Certified Mail)
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Dep.artment of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215
Christopher B. Wilkinson, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson
St., Suite 1110, San Francisco, CA 94105
Richard L. Elmore, Esq., Hale Lane Peek Dennison Howard and Anderson, 100 West Liberty
Street, Tenth Floor, Reno, NV 89501
Int
·.:.:;:..

2

Secretary on behalfofStahl v. A & K Earthmovers, Inc., 22 FMSHRC 233 (February 2000).
1012

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

August 29, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, on behalf of
DEWAYNE YORK,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2000-255-D
BARB-CD-2000-06

v.
Mine ID 15-18028

BR&D ENTERPRISES, INC,
Respondent

DECISION
AND
ORDER OF TEMPORARY REINSTATEMENT

Appearances: Joseph B. Luckett, Esq., Associate Regional Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Complainant:
J.P. Cline, ill, Esq., Middlesboro, Kentucky, for Respondent.
Before:

Judge Zielinski

This rriatter is before me on an Application for Temporary Reinstatement filed by the
Secretary on behalf of Dewayne York pursuant to section 105(c)(2) of the Federal Mine Safety
and Health Act of 1977 (the "Act"), 30 U.S.C. § 815(c)(2). The application seeks an order
requiring Respondent, BR&D Enterprises, Inc., (BR&D) to reinstate York as an employee
pending completion of a formal investigation and final decision on the merits of a discrimination
complaint he has filed with the Mine Safety and Health Administration (MSHA). A hearing on
the application was held in Pineville, Kentucky, on August 23, 2000. For the reasons set forth
below, I grant the application and order Mr. York's temporary reinstatement.

Summary of the Evidence
Dewayne York had been employed by BR&D for approximately seven of his ten years as
a miner. He worked at the #3 mine for 12-14 months prior to being terminated on May 25, 2000,
and held the position ofroofbolter operator on the #1 shift at the time of his discharge. By all
accounts, York was a good worker and there were no complaints about his work performance.
1013

York testi~ed that from the time he started working at the #3 mine, BR&D followed a
mining procedure that violated its approved roof control plan, in that miners would enter
intersections that had not been properly supported. The work crew in a section of the mine
consisted of twelve men, four of whom operated two roof bolting machines, or "pinners",
referred to as the "intake" and "return" pinners. The power cables of the "intake" pinner ran
along the right, or intake, side of the mine entries, and those of the "return" pinner ran along the
left or "return" side. York and Charlie Price operated the "intake" pinner. After the continuous
mining machine had driven an entry past where a crosscut would be made and the area had been
bolted, the miner would then make a 32 foot deep cut at the face, back away from the face into
the previously mined area and make another cut by turning right and starting the crosscut. While
that area of the entry had been bolted, the newly created intersection was considered unsupported
and BR&D's approved roof control plan specified that no miners were allowed to enter it until
temporary supports, or two rows of bolts, had been installed in the newly created crosscut. 1 The
intake pinner would normally bolt the crosscut, because its power cables ran along the right side
of the entry and the return pinner would bolt the new cut at the face of the entry, its cables being
hung along the left side of the entry.
York testified that, rather than wait for the intake pinner to install two rows of bolts in the
crosscut, the return pinner and its crew would travel through the unsupported intersection to bolt
the new cut at the face. York himself also entered the unsupported intersection to help hang the
power cable for the return pinner. He testified that he tolerated this procedure until early April,
2000, when they encountered "draw rock"2 presenting unstable roof conditions. At that time, he
refused to continue with the procedure and insisted that two rows of bolts be placed in the
opening of the crosscut before he and other miners entered the intersection. He claims that the
return pinner was idle while the two rows of bolts were being installed in the crosscut and that
production fell as a result. In addition to his complaints about violation of the roof control plan,
which were also voiced by other bolter operators, he testified that he complained to his foreman,
Jackie Jaggers, about excessive dust attributable to a failure to install line curtain and excessively
wide and deep cuts made by the continuous miner. He acknowledged on cross examination that
he did not attempt to bring his safety concerns to MSHA officials and did not speak directly to
any other management officials about them.

·.

...

.:.:·:
~·-·

The roof control plan provided that: "Openings that create an intersection will be
supported by permanent supports or be supported with two rows of temporary supports on 5-foot
centers across the opening before any work or travel in the intersection."

'·......

2

Draw rock, or "draw slate" is "soft slate, shale, or rock approx. 2 in. (5.08 cm) to
2 ft. (0.61 m) in thickness, above the coal, and which falls with the coal or soon after the coal is
removed." AMERICAN GEOLOGICAL INSTITUTE, A DICTIONARY OF MINING, MINERAL AND
RELATED TERMS 168 (2d ed. 1996).
1014
.·":

Jaggers testified that neither York nor any other miner had ever made such complaints to
him and further denied that he had ever advised the mine superintendent or president of any such
complaints. Randy Phelps, the mine superintendent testified that he had no knowledge of any
complaints made by York and that he had never discussed complaints with Jagger or Stanley
Ditty, the president and an owner ofBR&D. Ditty testified that no-one had ever advised him that
York or any other miner had made safety complaints.
On May 25, 2000, there was an unusually heavy rainstorm that caused flooding and
power outages at the #3 mine and the adjacent #4 mine. York and the other miners arrived about
6:00 a.m., and waited at the mine site. York testified that it was his and the other miners'
understanding from prior experience that they would not be paid until they actually started
working. They tired of waiting and were repeatedly advised by management that the power
would be restored in a few minutes, predictions that proved unfounded. By 9:00 a.m., the power
had not been restored and some of the miners decided to leave the mine site. York left because
of his belief that he was not being paid and the person that he rode with to the mine was leaving.
They proceeded to the home of one of the miner's, where they could observe the road to the mine
and see whether other miners also left. In all, some thirteen miners, including York, left the site.
Stanley Ditty testified that the purchaser of the mine's coal was in need of coal at that
time and he was intent on producing coal that day as soon as power was restored. 3 He wanted the
miners to stay at the site and communicated that desire to the superintendent, Phelps. He also
testified that miners were not normally paid until they reached the coal face, but it was his longstanding practice to pay miners that stayed at a mine site at his request, at least from the time of
the request.
On May 25, 2000, Ditty arrived at the mine site between 9:00 and 9:30 a.m. He
determined, without consulting Phelps or Jaggers, that he would discipline the absent miners by
suspending them until the following Tuesday, and began to call the homes of the miners who had
left. He had a-conversation with York's wife, Dejuana,4 and later spoke with York himself The
specifics of the conversations are disputed. Ditty testified that he inquired about York's
whereabouts and informed Mrs. York that her husband had left the mine and was being
suspended, that she stated that he wasn't happy working at that mine, to which he responded that
he was free to find another job. Mrs. York denied making any comment about her husband's
happiness on the job and testified that Ditty did not tell her about a suspension, just that her
husband had been fired.

3

Power was restored later that morning and coal was produced that day at the #3
mine. Coal was not produced that day at the #4 mine which was lower in elevation and more
severely flooded. Some of the miners at the #4 mine had also left the site.
4

Ditty testified that he called York's home and spoke to his wife. Mrs. York
testified that she was at work that morning and received a call from her son, who advised that
Ditty was looking for York. She then called the mine site and spoke to Ditty.
1015

Ditty testified that York called him at the mine that morning.5 Ditty asked why York had
left the mine and was told that he didn't think he was being paid. Ditty questioned how York
could believe that, asked him to cite an example, and told him he was suspending York and the
other miners who had left the site. York protested the suspensions as unfair, then cursed Ditty
and told him he would see him in court. York denied cursing Ditty and testified that he was told
that he had been terminated and that the other miners who had left had been suspended, to which
he responded that he would see Mr. Ditty in court. Ditty also denied that production could have
been reduced as a result of York's claimed change in roofbolting procedures because he had
excess roof bolting capa:city, i.e. two roofbolters where other operators had only one, and that
requiring the return pinner to wait while bolts were installed at the entrance of the crosscut would
not have delayed other operations. He stated that he was advised, only in preparation for the
hearing, that some miners indicated that they had followed the unlawful practice described by
York, but did so in order to get longer breaks.
York filed a complaint of discrimination with MSHA on May 26, 2000, alleging that he
had been discharged for making safety complaints.
Findings of Fact and Conclusions of Law
Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the
Secretary shall investigate a discrimination complaint "and if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint." The Commission has established a procedure for making this determination.
Commission Rule 45(d), 29 C.F.R. § 2700.45(d), states:
The scope of a hearing on an·application for temporary reinstatement is
limited to a determination as to whether the miner's complaint was frivolously
brought. The burden of proof shall be upon the Secretary to establish that the
complaint was not frivolously brought. In support of his application for
temporary reinstatement, the Secretary may limit his presentation to the testimony
of the complainant. The respondent shall have an opportunity to cross-examine
any witnesses called by the Secretary and may present testimony and documentary
evidence in support of its position that the complaint was frivolously brought.

5

Mrs. York attempted to reach her husband by calling the wives of two miners who
worked with York and was eventually successful in getting a message to him to call Mr. Ditty.

1016

;.

;. ··.

....;

"The scope of a temporary reinstatement hearing is narrow, being limited to a determination by
the judge as to whether a miner's discrimination complaint is frivolously brought." Secretary on
behalf ofPrice v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987) aff'd sub
nom. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990).
In adopting section 105(c), Congress indicated that a complaint is not frivolously brought,
if it "appears to have merit." S. Rep. No. 181, 95•h Cong., l51 Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95•h Cong. 2"d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). The
"not frivolously brought" standard has been equated to the "reasonable cause to believe" standard
applicable in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Secretary on behalfof
Bussanich v. Centralia Mining Company, 22 FMSHRC 153, 157 (February, 2000).
While an applicant for temporary reinstatement need not prove a prima facie case of
discrimination, it is useful to review the elements of a discrimination claim in order to assess
whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to
establish a prima facie case of discrimination under Section 105(c) of the Act, a complaining
miner bears the burden of establishing (1) that he engaged in protected activity and (2) that the
adverse action complained of was motivated in any part by that activity. Secretary on behalfof
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786(October1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981); Secretary on behalf of
Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1844 (August 1984); Secretary on behalf of
Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Applicant here has presented
sufficient evidence on each of the elements of a prima facie case to establish that his claim, on
the record of this temporary reinstatement proceeding, is not :frivolous.
York's testimony that he made numerous complaints to his foreman, though contradicted,
would be sufficient to establish a prima facie case that he engaged in protected activity6 and
easily passes the lower threshold applicable here. It is undisputed that York suffered adverse
action, i.e. he was terminated, while the other miners who had left the mine site received only
suspensions. Recognizing that the asserted independent justification for the termination, York's
cursing of Ditty, is also directly controverted, Respondent's primary argument in opposing
temporary reinstatement is that the termination could not have been the product of unlawful
motivation because York presented no direct evidence that Ditty had been informed that York
had made safety complaints and that Respondent presented testimony establishing that he had not
been so informed. However, there is enough circumstantial evidence on the issue of whether
Ditty was aware of York's claimed protected activity to raise an issue as to unlawful motivation
and meet the non-frivolous test. Ditty described himself as a "hands-on person" who was closely

6

A complaint made to an operator or its agent of "an alleged danger or safety or
health violation" is specifically described as protected activity in§ 105(c)(l) of the Act.
1017

involved in the mi.ning operations under his control. He monitored production reports and would
have been aware of any reductions and the reasons therefore. If there was a fall-off in production
as a result of changes in roof bolting procedures prompted by York's actions, it is highly likely
that Ditty would have been familiar with all of the pertinent facts. Similarly, if York had made
safety complaints, as he claims, there is a reasonable inference that mine managers, including
Ditty, would have been aware of them.
The Commission has frequently acknowledged that it is very difficult to establish "a
motivational nexus between protected activity and the adverse action that is the subject of the
complaint." Secretary on behalfofBaier v. Durango Gravel, 21 FMSHRC 953, 957 (September
1999). Consequently, the Commission has held that "(1) knowledge of the protected activity; (2)
hostility or animus towards the protected activity; and (3) coincidence in time between the
protected activity and the adverse action" are all circumstantial indications of discriminatory
intent. Id. As noted above, there is circumstantial evidence that Ditty would have been aware of
any protected activity by York and the proximity in time of any such knowledge and the claimed
adverse action is sufficient to raise an inference of unlawful motivation.

--::

....
...\·.

·.·:

. ·:
....

On the other hand, BR&D has presented credible evidence that York had not engaged in
protected activity, that at the time of the termination Ditty had no knowledge of any protected
activity by York, and, that there was an independent justification for the termination. These
issues are hotly contested and cannot, and should not, be resolved at this stage of the
proceedings. The investigation of York's complaint has not yet been concluded and no formal
complaint of discrimination has been filed on his behalf. The purpose of a temporary
reinstatement proceeding is to determine whether the evidence presented by the Complainant
establishes that his complaint is not frivolous, not to determine "whether there is sufficient
evidence of discrimination to justify permanent reinstatement." Jim Walter Resources, Inc., 920
F.2d at 744. Congress intended that the benefit of the doubt should be with the employee, rather
than the employer, because the employer stands to suffer a lesser loss in the event of an
erroneous deqision since he retains the services of the employee until a final decision on the
merits is rendered. Id. 920 F.2d at 748 n.11.

..·

I find that York's complaint is not entirely without merit and conclude that his
discrimination complaint has not been frivolously brought.

r.·

...·.·,.·
·..

....

.-.·.~

1018

ORDER
The Application for Temporary Reinstatement is GRANTED. BR&D Enterprises, Inc. ,
is ORDERED TO REINSTATE Mr. York to the position that he held inunediately prior to
May 25, 2000, or to a similar position, at the same rate of pay and benefits, IMMEDIATELY
ON RECEIPT OF THIS DECISION.

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215 (Certified Mail)
J.P. Cline ID, Esq., P.O. Drawer 2220, Middlesboro, KY 40965 (Certified Mail)
/mh

1019

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

August 31, 2000
EASTERN ASSOCIATED COAL CORP.,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 2000-98-R
Order No. 7185736; 8/7/2000

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

Rock Lick Prep Plant
Mine ID 46-06448

DECISION GRANTING CONTESTANT'S MOTION TO DISMISS
Appearances: R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh, Pennsylvania, for the
Contestant;
Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, and Dana Hosch, MSHA, U.S. Department of Labor, Mt. Hope,
West Virginia, for the Respondent.
Before:

Judge Weisberger

I. Introduction
This case is before me based upon a notice of contest and motion to expedite, filed by
Eastern Associate Coal Corporation ("Eastern"), challenging the issuance by the Secretary of Labor
("Secretary") of an order, under Section 107(a) of the Federal Mine Safety and Health Act of 1977
("the Act"), that had been issued to Eastern on August 7, 2000, regarding an aspect of its operation
at the Rock Lick Preparation Plant. 1 The Rock Lick Preparation Plant at issue processes coal and
maintains stockpiles (surge piles). Coal is delivered to the surge piles by stacker tubes (loaders)

1

The order was issued orally by MSHA inspector Sherman Lee Slaughter to Eastern's agents
over the telephone on August 7, 2000, and was reduced to writing and served on August 8, 2000.
Pursuant to a telephone conference call between the undersigned and attorneys for both
sides on August 10, 2000, the case was scheduled to be heard in Charleston, West Virginia, on
August 16 and 17, 2000.

1020

located above the piles. The coal then comes out of windows on the side of stacker tubes to
accumulate on the piles. Coal is removed from the piles by the .action of vibrating feeders
located at the bottom of the piles which cause the coal in the pile to drop, in a cone shaped area,
known as a withdrawal area, through the feeders onto a conveyor belt. The width of the cone, at
its widest point, at the top of the pile, is dependent upon the height of the pile.

II. The Secretary's Case
MSHA inspector Sherman Lee Slaughter, inspected the subject site on June 27, 2000. He
entered reclaim tubes located under the piles in order to observe the feeders which are located in
the tubes and could not otherwise be observed. He indicated that most of the feeders did not
have gates. According to Slaughter, in discussions with Eastem's agents at the time, he
ascertained that Eastern did not have any procedures to determine if a cavity or void existed in
the pile above the feeder, before a bulldozer would be allowed to operate on the pile. He also
noted that the bulldozers had only one radio, an F.M. mobile radio, and did not have any back-up
communication. Slaughter also found that the bulldozer operators did not have any way to shutoff either the feeders or the stacker tubes from the bulldozer. Also, although there were cameras
on the site, the operators of the feeders could not see the bulldozer operators all the time they
were on the piles. He stated that it was understood that a bulldozer would not operate over an
inactive feeder or over a withdrawal area. He did not see any evidence of any cavities or voids in
the piles, and concluded that the conditions and practices at the site did not create an imminent
danger. Nor did he issue any citation or order as a consequence of his inspection on June 27,
2000.
Slaughter indicated that on Monday, August 7, 2000, he received a telephone call from
the Madison MSHA office, advising him that an incident had occurred on August 5, at the Rock
Lick Plant. Slaughter telephoned Jerry Swanson, Eastem's operations manager at the plant, who
advised him that on August 5, after the feeder was started on the Eagle raw coal pile, it was noted
that it was plugged, that coal was not going through the feeder, and it was determined that there
was a cavity. According to Slaughter, Swanson told him that a bulldozer operator was directed
to use a bulldozer to dig into the pile in order to open the void to allow coal to be released
through the feeder. After the bulldozer made several passes it slid down into an opening in the
pile, and the foreman told the bulldozer operator to get out of the bulldozer and walk away from
the area. A second bulldozer was then sent to push coal into the opening in order to stabilize the
pile. After approximately 9 to I 0 passes, the second bulldozer backed off 75 feet and the first
bulldozer fell into the opening.
Slaughter concluded that because this pile was plugged, he expected others to be plugged.
However, he did not explain this conclusion nor did he provide the basis for it. On August 7, at
2:45 p.m., Slaughter issued an imminent danger order to Swanson, over the telephone,
prohibiting bulldozers from being operated in the withdrawal area. He indicated that he had
issued the order because the conditions that he described could reasonably cause a person to
become injured before the conditions were abated.

1021

Slaughter explained that he issued the order orally because he did not want to wait until
he got to the mine due to "imminency''. He said he indicated to Swanson that he needed to come
to the mine immediately. Swanson asked him to come to the mine the next morning between
8:30 a.m. and 9:00 a.m. because the persons that Slaughter needed to talk to would be present at
that time, and Slaughter agreed. Slaughter indicated that although on August 7, he had
concluded that the danger was imminent, he still wanted to go to the site in order to evaluate all
the conditions and to ensure that they were as described to him on August 7. He also delayed the
issuance of the withdrawal order because he sought information from the company regarding
angles of the withdrawal area, and heights of the piles so that he could describe on the
withdrawal order the specific area from which miners and equipment were to be withdrawn.
When Slaughter arrived at the mine on August 8, and Eastem's agents asked for a written
order, he told them that he needed to talk to the bulldozer operators prior to his giving them a
written order, in order to find out exactly what the facts were.
Slaughter indicated that in conversations with the bulldozer operators on August 8, he
was informed that there was a verification system for active feeders as operators would be
advised when the feeders would be activated and when coal would start to move in the
withdrawal area. The bulldozer operators would then know that there were not any cavities in
that pile. However, they indicated that there was no verification system to advise them of
cavities in piles served by inactive feeders. The operators confirmed that they only had one radio
in each bulldozer, that they did not have any remote controls in the bulldozers to shut-off the
feeders and stacker tubes, and that cameras were unable to transmit views of miners at all times
when working on the piles. Also, the bulldozer operators advised him that they were unable to
determine the distance of their bulldozers from the feeder. Nor were they able to determine the
height of the piles.
Slaughter indicated that the instant written order was finally served by him at 6:30 p.m.,
August 8, and that some of the delay was caused by the need to have a typewritten computer
generated form, and there were problems with the office computer.
Slaughter explained that ifthe coal in the pile becomes compacted due to the operation of
the bulldozer on the top surface, a layer of compacted coal can occur, called a bridge. In such an
event, if the feeder is activated, loose coal below the bridge will flow toward the feeder creating a
void or cavity below the bridge. ·Once a feeder is activated, and if no coal flows through the
feeder, it can indicate blockage in the feeder by large pieces of coal, or can indicate existence of a
void in the pile. In addition, Slaughter explained that vibration could still occur within the feeder
as a consequence of equipment riding on the top of the pile, or as a result of vibration in an
adjacent feeder, even though the vibrator had not been turned on. In such an event, even if a
feeder had not been turned on, a void or cavity could result if a bridge had been created due to
compaction. Should a bulldozer be operated over the withdrawal area of a feeder that is not
active, and should a void exist below the surface in the pile, the bulldozer could then fall into the
cavity fatality injuring the operator. He referred to various accidents thafhad been documented
1022

by MSHA involvin,g vehicles falling into cavities at other mines, resulting in a fatality or a
serious injury.
According to Slaughter, the following conditions and practices created an imminent
danger: (1) not all the vibrating feeders had gates or other means to prevent gravity flow, (2) the
piles at issue were known to plug and have cavities, (3) there was no back-up system of
communication as the equipment that operated at the top of the piles had only one radio whose
antenna could be knocked off if the dozer slid when falling down a cavity, (4) there were no
cameras sufficient to see.the bulldozer operators at all times on the pile, (5) there was no remote
system in the bulldozers to allow the operators to shut-off feeders and stacker tubes, and (6) that
generally cavities occur over feeders. He described the practices that created the imminent
danger along with the conditions as follows: (I) there was not any system to determine if there
was a cavity above an inactive feeder, before allowing the operator to travel within a withdrawal
area of any feeder in the pile, which would create a danger if a cavity existed, as the bulldozer
could fall, resulting in the operator getting covered with coal and possibly suffocating, and, (2)
the practice of operators working within the angle of withdrawal when pushing coal to an active
feeder and ringing (benching) coal above inactive feeders.
Specifically, with regard to his conclusion that the various dangers that existed were
imminent, he stated, in various points in his testimony, as follows: (l)that bulldozers were used
to push coal away from the stacker tubes and to move fines from the top of the pile over the
edges to get at the coal in the lower parts of the pile, (2) that on August 7, because he was
informed that the bulldozer had fallen into a cavity, he therefore concluded that the bulldozer was
being operated within the withdrawal area of the feeder in a pile that it was working on, and that
therefore bulldozers operate in withdrawal areas of other piles, (3) that he knew cavities existed
in the piles at Rock Lick, (4) that he knew the work procedures used exposed the bulldozer
operators to working within the withdrawal areas that had cavities, and therefore it was
reasonable to expect that a bulldozer operator could receive a serious injury before the work
procedures w~re changed, (5)that he was concerned about a potential for a cavity but not the
existence of an actual cavity, and (6) that an imminent danger did not depend upon the existence
of cavities the day the order was issued but upon knowing that cavities do occur and that it was
reasonable to expect that they will occur again before work procedures or conditions change. He
was asked his opinion regarding the probability of cavities occurring within a short period of
time, and he answered that it could be expected at any time i.e., at any moment. However, he did
not elaborate upon or explain the basis for this opinion.
Raymond Butler who operates a bulldozer on the site, stated that it is his procedure to fill
an emptying withdrawal area before he moves to work on the next feeder, in order to avoid a
void over an inactive feeder. He said that there was a void in the piles about 3 to 4 months ago.
David Stover, a bulldozer operator clarified that on August 5, he exited his bulldozer after
it had been pulled 10 feet sideways into a cavity when he was attempting to cut into the pile
sideways to get the coal to fall through a cavity. He testified that after the second bulldozer
1023

arrived and made about a dozen pushes attempting to fill up this hole, a second hole developed.
The second bulldozer operator got out of the bulldozer, and the bulldozer slid into the hole
backwards.
Dr. Kelvin Ke-Kang Wu, a professional engineer with a doctorate in mining engineering
majoring in rock m~chanics, and minoring in rock/soil mechanics, has extensive experience in
the area of safety issues regarding surge piles. He described various hazards caused by cavities.
He indicated that cavities result if the pile becomes compacted by weight. Other factors causing
cavities are moisture, the presence of fines in raw coals, and the effect of freezing temperatures.
Assuming the existence of the following facts he opined, in essence, that there was reasonable
potential that these conditions and practices could lead to a serious injury or death before they are
abated: (1) the presence of three clean coal stockpiles, and three raw coal stockpiles, all with
vibration feeders under them, (2) the presence of a total of thirty-three feeders, most of which do
not have gates, (3) the absence of a system to verify that there are no cavities above inactive
feeders before.bulldozer operators travel over these inactive feeders, (4) the creation of voids two
weeks prior to the date in question over all feeders in the raw coal piles that had six feeders, (5)
the occurrence of an incident wherein the bulldozer operator attempted to eliminate a void by
digging into a pile, and the bulldozer slid sideways 10 feet into a cavity and the bulldozer
operator was able to get out to safe ground, and a second bulldozer started to fill in the void that
the first bulldozer had started to slide into but a second void opened up and the second bulldozer
continued to fill in the void and sank backwards into the void, and that the voids were over two
adjacent feeders, (6) that there were instances in the past where voids were created over feeders
at this plant, and (7) that in one incident a bulldozer went nose down, partially in the void, but no
one was hurt, and (8) that there is evidence of generally good communication between the
bulldozer operators and the load-out operator, but that the bulldozers have only one radio.
Wu was asked whether these conditions and practices have a reasonable potential to cause
a fatality or serious injury within a short period of time. He answered that if proper
communication equipment is not provided, the operator will have only a slim chance to escape
should the bulldozer fall into a cavity, that there is a possibility of the glass windows and
windshield on the bulldozer breaking and the operator suffocating if the bulldozer is buried and it
takes a long time to dig it out, and that not all cabs have extra strong reinforced glass. He was
asked his opinion on the likelihood that a void will occur. He answered that every surge pile has
that potential, and that the likelihood is affected by the type of materials in the pile, the properties
of the material, how long the pile has been in existence, (that the longer it is in existence the
more it can become compacted based on its own weight), weather conditions, and the type of
equipment operating on the pile. He then was asked whether the fact that two voids occurred two
weeks prior to the date at issue is a factor in evaluating likelihood, and he stated that if the first
void is known and the bulldozer sinks into it, it means he was too close. Regarding the second
void he opined that its existence was not known and therefore there was not enough information.
He also indicated that the amount of voids in a pile depends on the amount of coal drawn out of
the pile and how fast it is drawn out. Also, there are piles that do not have any voids.

1024

... -~

Hence, the gravamen of his testimony, speaks to the gravity of the dangerous conditions,
and the degree of danger. However, it does not address the main issue as to whether, on the date
the order was issued, August 7, the danger, i.e., the existence of cavities, was imminent.
At the conclusion of the Secretary's case, Eastern made a motion for a summary decision.
After listening to arguments from both counsel a decision was made granting the motion.

III. Evaluation
The following sets forth the oral decision made on the motion at the hearing, with the
exception of minor changes not related to matters of substance.
1. The Case Law

In dealing with the motion raised by the Operator and the
reply by the Secretary, the first step is to ascertain the proper
standard to be applied in reaching a decision as to whether or not the
Secretary has sustained its burden of establishing that there existed
an imminent danger as defined in Section 3(j) of the Act. The
Secretary cited Freeman Coal Mining Co. v. Interior Bd. of Mine Op.
~,504 F. 2"d 741 and (7th Cir. 1974), and Eastern Associated Coal
Corp. v. Interior Bd. of Mine Op. App. 493 F. 2"\ 277 (4th Cir.
1974). It is significant to note that both those cases were decided
under the predecessor of the existing Act, namely they were decided
under the Coal Act of 1969. The controlling Act in the case at bar is
the Federal Mine Safety and Health Act of 1977. There's been
considerable commission law subsequent to the enactment of the Act
and I rely upon Commission law in this regard in determining the
standard to be set when evaluating an ·imminent danger.

. In reviewing the Commission cases, I note one of the
leading cases, Utah Power & Light Co., 13 FMSHRC 1617 (1991)
cited by both counsel. The Commission, first of all, in Utah Power
& Light Co., supra. at 1621 reviewed the legislative history of the
term "imminent d;:inger" as found in the Act, and concluded based
upon its review of the legislative history, as follows: "Thus the
hazard to be protected against by the withdrawal order, must be
impending, so as to require the immediate withdrawal of miners."
(Emphasis added.) Continuing further, at 1622, the Commission
held that to support a finding of imminent danger, the inspector
must determine "whether the condition presents an impending
theat to life and limb". (Emphasis added) The Commission went
on to state that only by limiting Section 107(a) withdrawal orders
to such impending threats does the imminent danger provision
1025

assume its proper function under the Mine Act.
Critically, the
Commission in Utah Power and Light, supra, at 1622,
distinguished an imminent danger withdrawal order from a
significant and substantial determination as follows:
If the imminent danger provisions of the Act are
interpreted to include any hazard that has the
potential to cause a serious accident at some future
time, the distinction is lost between a hazard that
creates an imminent danger, and a violative
condition that 'is of such nature as could
significantly and
substantially contribute to the cause and effect of a
mine safety hazard.'

The Commission in Utah Power & Light Co., supra,
clarified its earlier ruling in Rochester & Pittsburgh, 11 FMSHRC
2159 (November 1989). In Rochester & Pittsburgh, supra, the
Commission, in discussing imminent danger used the phrase, "at
any time". In explaining that phrase, the Commission, in Utah
Power &
Light Co., supra,
stated as follows: "the
Commission used the
phrase, 'at any time,' in the sense of, 'at any moment.'"
(Emphasis added)
In summarizing, the Commission, in Utah Power & Light
.GQ.., supra, at 1622, held as follows: "To support a finding of
. imminent danger, the inspector must find that the hazardous
condition has a reasonable potential to cause death or serious injury
within a short period oftime," (Emphasis added)

Following Utah Power and Light, supra, the Commission
issued Wyoming Fuel Co., 14 FMSHRC 1282 (1992). In
Wyoming Fuel, supra, the Commission noted its previous decision
in Rochester & Pittsburgh, supra, a 1989 decision which had
quoted from Eastern Associated Coal Corporation, supra. 277, 278,
as follows: "an imminent danger exists when the condition or
practice observed could reasonably be expected to cause death or
serious physical harm to a miner if normal mining operations were
permitted to proceed in the area before the dangerous condition is
eliminated." Leaving it just like that, one might have the
impression that the Commission was retreating somewhat from its
1026

..
·~

...
.·

...

..

.··

..

·"

.·

earlier pronouncement in Utah Power & Light Co., m, linking
the term "imminent danger" to a degree of imminence, in other
words, a time-related situation. That is not the case. In Wyoming
Fuel, supr~ in the paragraph following the Commission's quote
from Eastern Associated Coal, Supra, the Commission, at 14
FMSHRC supra, at 1290, discussed its previous ruling in Utah
Power & Light Co., supra and stated that it had held in Utah Power
& Light Co., supr~ that, "there must be some degree of imminence
to support a Section 107(a) order." (Emphasis added.) The
Commission in Wyoming Fuel, supra. at 1290, reiterated that in
Utah Power & Light Co., supra, at 1621 the Commission had
"noted that the word 'imminent', is defined as ready to take place:
near at hand: impending ... : hanging threateningly over one's head:
menacingly near."
In Wyoming Fuel, supra, at 1290 - 1291, the Commission,
in further discussing its prior· decision in Utah Power & Light Co.,
m. stated that it had previously determined, referring, to Utah
Power & Light Co., supr~ "that the legislative history of the
imminent danger provision supported the conclusion that, 'the
hazard to be protected against by the withdrawal order must be
impending so as to require the immediate withdrawal of miners"'
(Emphasis added). It appears at least through Wyoming Fuel,
m, that the Commission was maintaining its holding that
imminent danger means an imminence of something occurring
within a short period of time.
In Island Creek, 15 FMSHRC 339, (1993), the Commission
. noted its prior holding in Wyoming Fuel, supra, at 1291, that in
imminent danger cases the judge must determine, "whether a
preponderance of the evidence showed that the conditions or
practices, as observed by the inspector could reasonably be
expected to cause death or serious physical harm before the
conditions or practices could be eliminated." (Island Creek, supra,
at 346). It might be construed that the Commission was retreating
from its position that, as stressed by Utah Power and Light, supra,
some degree of imminence was required to establish an imminent
danger, since Utah Power and Light, supra, was discussed in its
decision prior to its discussion of Wyoming Fuel, m. However,
in the most recent discussion by the Commission of imminent
danger Blue Bayou Sand and Gravel, 18 FMSHRC 853 (1996) the
Commission, after reviewing the definition in the Act of imminent
danger and noting language from its prior decision in Rochester &
1027

Pittsburgh, 11 FMSHRC supra at 2163, quoted the following
language it had set forth in Rochester & Pittsburgh, supra, at 2163:
"an imminent danger exists when the condition or practice
observed could reasonably be expected to cause death or serious
physical harm to a miner if normal mining operations were
permitted to proceed in the area before the dangerous condition is
eliminated." Blue Bayou, supra, at 858. However, it is very
important to note that in the same paragraph, the Commission in
Blue Bayou, supra, at 858, the most recent commission decision on
imminent danger explained as follows quoting from Utah Power
and Light, supra: "[t]he Commission has explained that '[t]o
support a finding of imminent danger, the inspector must find that
the hazardous condition has a reasonable potential to cause death
or serious injury within a short period of time.' (Emphasis added.)
Utah Power & Light Co., 13 FMSHRC 1617, 1622 (October 1991)
("UP & L")."
I conclude that Commission doctrine, at this point in time,
requires, regarding the existence of an imminent danger, that it be
established by a preponderance of the evidence, that a hazardous
condition or practice has a reasonable potential to cause death or
serious injury within a short period of time. And this is to be
distinguished from a significant and substantial determination that
looks at a broad continuum of a reasonable likelihood of an injury
producing event occurring, assuming continuing normal mining
operations. In cont;rast, a withdrawal is much more limited. The
incident, the hazardous condition or practice, that can cause death
or serious injury must have a reasonable potential of occurring, not
· throughout this entire continuum, but within a short period of time.

2. Discussion
The question now is, what is the evidence in the record of
an injury producing event occurring within a short period of time,
considering the conditions and practices cited by the inspector. Of
all the different factors, conditions and practices discussed by the
inspector and referred to by Counsel, one stands out. It is the sine
qua non of all these different practices and conditions. Namely, the
existence of a cavity. Without a cavity there is no danger. A
practice of perhaps having a system or communication that might
be deficient, a condition of perhaps not having sufficient cameras,
or not having a backup radio, all become insignificant if there is
not a reasonable potential of an injury production event occurring
1028

"

.......

within a short period of time. In this case, the only practice or
condition that has any potential of causing serious injury or death is
a cavity. Everything else flows from the existence of a cavity. The
other factors, if present, and go to the degree of injury, and the
seriousness of injury. But first there must be an injury, i.e., there
must be a cavity. Therefore, it must be established that there was a
reasonable potential of the existence of a cavity on August 7.
In evaluating the Secretary's case, I first note the
inspector's testimony. On direct examination he discussed
imminence. He concluded that an injury producing event, i.e., a
cavity was imminent, because on his visit to the site on June 27, he
was told by an agent of the company, that the company knew
cavities existed in the Rock Lick piles. However, on cross
examination, he indicated that on August 8, there was no plugging,
that he did not know if there were cavities when he issued bis
order, but that his concern was the potential for cavities, not the
actual cavity indicated in any pile with a feeder. Potential for
cavities is not the issue. Potential for cavity creation over any time
is not the issue. The issue is potential for a cavity within a short
period of time.
The inspector was asked his opinion regarding the
probability of a dangerous condition occurring within a short
period of time, i.e., a cavity occurring within a short period of time.
He indicated that a cavity can be "expected at any time", and he
indicated "any time" is equated with "any moment'', i.e., that
cavities
. could occur at any moment. But he did not explain the basis for
his-opinion.
Dr. Wu, the expert in the particular areas that we are
concerned with, was asked, in essence, to assume the existence of
the various practices and conditions that the inspector testified to,
and to state his opinion whether there was a reasonable potential
that an incident involving a void will occur, causing death or
serious injury within a short period of time. He answered, yes.
However, in explaining his answer, he discussed the problems with
rescue after an incident, and that there would be a danger of
suffocation, or being buried by coal should the bulldozer's glass
windows break. He was asked the question again, and basically
rephrased his answer, but again referred to the short period of time
to allow for successful rescue of a bulldozer operator after falling

1029

into a cavity. He explained, in his answer, that bulldozer cabs do
not all have stronger glass and that it is more likely that the glass
will break and suffocation will result if a bulldozer operator does
not exit the cab in time. His answer related to the degree of injury
and gravity, but did not address the key issue which is the
occurrence in of a cavity within a short period of time. Both the
inspector and the expert testified to various factors that could
create a bridge which could lead to a cavity e.g., moisture, freezing
the type of material in the pile, the time of the feeder's operation
cycle, and the presence of vehicles on top of the pile. However,
Dr. Wu did not explain what the specifics in the case were, and
why these specifics would lead to a conclusion that a cavity would
result in a short period time. 2 Thus,
I find that the Secretary has not established its case by a
preponderance of the evidence and the motion is granted.

ORDER
It is ORDERED that the Notice of Contest be sustained, and that Withdrawal Order No.
7185736 be dismissed.

Leisbe~
Administrative Law Judge

2

In the oral decision at the hearing it was inadvertently omitted that I take cognizance of
testimony relating to the existence of two cavities on August 5. However, in evaluating whether it
thus, can reasonably be inferred that cavities existed or were imminent on August 7, it is important
to note that Dr. Wu, the Secretary's expert, was asked to explain how the occurrence of the voids,
less than two weeks before the ~te at issue, "factor[ed]" into his opinion regarding the likelihood of
a void occurring, and he replied as follows: "It factor in my opinion is if you know there's one void,
you send one bulldozer to excavate it and it sinks in. That means it's just too close to that hole, the
voids. Then the second void was not know. Ifhe had known, he won't drive on the second void.
So there's some misinformation or the information is not adequate as possible void, the area which
might --- should be concerned." (Sic.) I thus find that Dr. Wu did not explain whether the
occurrence of two voids on August 5, increased the likelihood of occurrence of cavities on August
7, the date at issue. Thus, giving most weight to Dr. Wu's testimony, based on his expertise and
experience, the preponderance of the evidence does not establish that from the occurrence of voids
on August 5, it might reasonably be inferred that voids existed or were imminent on August 7, the
date the order was issued.
1030

Distribution: (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant St., 201h Floor,
Pittsburgh, PA 15219-1410

Daniel M. Barish, Esq., Office of the Solicitor, U.S ..Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203
Dana Hosch, Conference & Litigation Representative, U.S. Department of Labor, Mine Safety
and Health Administration, 100 Blue Stone Road, Mt. Hope, WV, 25880

/set

1031

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

August 31, 2000

SECRETARY OF LAB.O R,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 99-19-M
A.C. No. 35-02969-05506

v.
Docket No. WEST 99-105-M
A.C. No. 35-02969-05508

WEATHERS CRUSHING, INC.,
Respondent

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 99-361-M
A.C. No. 35-02969-05509 A

v.
Weathers Portable
DARWIN WEATHERS, employed
by WEATHERS CRUSHING, INC.,
Respondent

DECISION
Appearances: William Kates, Eq., U.S. Department of Labor, Office of the Solicitor,
Seattle, Washington for Petitioner;
Roger Luedtke, Esq., Schwabe Williamson & Wyatt P.C., Portland, Oregon,
for Respondent.
Before:

Judge Bulluck

These cases are before me upon Petitions for Assessment of Penalty filed by the Secretary
of Labor, through the Mine Safety and Health Administration ("MSHA"), against Weathers
Crushing, Incorporated ("Weathers Crushing") and Darwin Weathers, president of Weathers
Crushing, pursuant to sections 105(d) and 1 lO(c), respectively, of the Federal Mine Safety and
Health Act of 1977 ("the Act"), 30 U.S.C. § 801 et seq., as a result of a fatality that occurred at
the Weathers Portable mine facility on April 30, 1998.
1032

A hearing was held in Medford, Oregon. The post-hearing briefs are of record. For the
reasons set forth below, Citation Nos. 4135307, 4135310 and Order No. 4135308 shall be
AFFIRMED, as issued, Order No. 4135309 shall be DISMISSED, and Darwin Weathers, as
corporate officer, shall be ordered to pay a civil penalty.

I. Stipulations

The parties stipulated to the following facts:
1. The Respondent, Weathers Crushing, Incorporated, is and at all times material hereto,
was a corporation with a mailing address of 6070 Rock Way, Central Point, Oregon 97502.
2. The Respondent, Weathers Crushing, Incorporated, is and at all times material hereto,
was the owner and operator of certain portable crushing machinery and equipment used at
various mine sites in Oregon and several years ago, in Northern California.
3. On or about April 30, 1998, the Respondent, Weathers Crushing, Incorporated, was
operating such portable crushing machinery and equipment on a temporary basis at the mine
facility known as the Weathers Portable and located at the pit known as the Brick Pile Quarry in
the Rogue River National Forrest, approximately 25 miles southeast of Central Point, Oregon.
4. The Weathers Portable facility, identified above, was, on April 30, 1998, a mine
subject to the Mine Act, in that its operations and products enter of affect commerce.
5. The site of the alleged violations at issue in these cases is the aforesaid Weathers
Portable mine facility.
6. The Respondent, Darwin Weathers, an individual, is and at all times material hereto,
was the president of Weathers Crushing, Incorporated.
7. The Respondent, Weathers Crushing, Incorporated, has a history of two assessed
violations, having two inspection days in the 24 months prior to the violations at issue herein.
8. At the aforesaid Weathers Portable mine facility, there were approximately 5,973
hours worked in the calendar year prior to the violations at issue herein.

II. Factual Background
Weathers Crushing began operating the cited portable jaw crusher at its Weathers
Portable mine facility on or about April 21, 1998 (Tr. 44-45). On the morning of April 30, 1998,

1033

when the· fatality occurred, Darwin Weathers, Dan Berkey and Richard Nelson were working at
the mine site (Tr. 25-26). Weathers had hired Nelson to operate.the rock crusher, as a
replacement for his son, Jeff Weathers, who had recently broken his ankle, and this was Nelson's
first day on the job (Tr. 57, 85). Jeff Weathers and Dan Berkey had both worked with Nelson
previously, and Nelson had talked to Darwin Weathers on a few occasions about coming to work
for him, indicating that he had worked on a rock crusher and around other heavy equipment on
another job (Tr. 58, 85-86, 123). The record is vague as to the extent of Nelson's experience on
rock crushers, except that he had worked in Susanville, California and New Mexico (Tr. 57, 79).
Prior to being hired by Weathers, Nelson had been an automobile mechanic (Tr. 58).

.·•

·.

Dan Berkey had driven himself and Richard Nelson to the job site (Tr. 108, 122).
Weathers spent ten to thirty minutes with Nelson on the operator's platform, instructing him on
the operation of the jaw crusher and watching him perform, and ultimately instructed Nelson to
get his attention on the front-end loader, should any problems occur that would require his
assistance (Tr. 78, 82, 86-87, 101, 122). Following Weathers' instruction, Berkey went up on the
platform with Nelson and showed him how to operate the crusher (Tr. 122-23). In response to
Nelson's mention of using a pry bar to clear blockages in the crusher, Berkey told Nelson that
"that wouldn't be a good idea," because "if you stick it in there and everything breaks loose, it's
going to take that pry bar and slam it back at you and hit you with it (Tr. 82-82, 123)." Before he
left the platform, however, Berkey did instruct Nelson on methods of clearing obstructions with a
running crusher, including breaking off comers of rocks with a sledge hammer and, like
Weathers, advised Nelson that 'if he had any problems, to let [him] know so [he] could go over
there and show him (Tr. 79-81, 124)."
At approximately 9:45 a.m., 2 Yz hours after Nelson had begun working, Weathers was
operating the front-end loader supplying rock to the jaw crusher, Berkey was removing sticks and
other foreign objects from the conveyor belt to the cone crusher, and Nelson was operating the
jaw crusher (Tr. 25-26, 35, 56-57, 79, 91, 124). Weathers became concerned when he lost view
of Nelson, and rushed to the jaw crusher, closely followed by Berkey, who had seen Nelson's hat
fly up in the air (Tr. 66, 95-96, 125-26). Weathers and Berkey found Nelson injured, lying in the
right side of the fee.der, just in front of the jaw crusher (Tr. 25, 30-32, 119; Ex. P-4). The jaw
crusher was still running, but the feeder had been turned off (Tr. 64, 94-95, 109). Weathers
directed Berkey to administer first aid to Nelson, while he radioed for help in his pick-up truck
(Tr. 64). The sledge hammer head had been hurled 37 Yz feet from the jaw crusher into a pile of
muck, and its badly splintered handle was found on one of the conveyor belts, having passed
through the cone crusher (Tr. 58-60; Exs. P-10, P-11 ). Neither Weathers nor Berkey actually
witnessed the accident.
The Jackson County Sheriffs Department was dispatched and took photographs of the
accident scene, and Fire and Rescue emergency medical personnel attempted to resuscitate
Nelson for approximately one hour, after which he was transported by ambulance to Rogue
Valley Medical Center, where he was pronounced dead (Tr. 60-62; Exs. P-4, P-5, P-6, P-12, P13, P-14). At the Medical Center, marijuana in a plastic bag and a marijuana pipe were found in

1034

...
:·:::
r-..:;

..

Nelson's jeans pocket by an emergency room nurse, and Nelson tested "presumptive positive"
for benzodiazephines and cannabinoids (Tr. 68; Ex.P-15).
MSHA Inspector Randy Cardwell and Darwin Weathers met at Weathers' home in
Medford at 7:00 that evening, discussed the accident and traveled to the mine together, so that
Cardwell could secure the site (Tr. 12-15). Cardwell observed that the feeder was empty, and
was told by Weathers that, after the accident, they had run the remainder of the rock through the
crusher, before shutting down the plant and leaving the mine (Tr. 28-30). Weathers expressed
his opinion to Cardwell that Nelson had been hit in the face with the head of a sledge hammer,
and showed him where Nelson had fallen in the feeder (Tr.13,15, 24-25).
On the following morning, May 151, MSHA accident investigation team members Collin
Galloway, David Brabank and Randy Cardwell, accompanied by Jackson County Medical
Examiner Sherman Spencer, Weathers and Berkey conducted an investigation of the fatality at
the mine site (Tr. 30, 35-36, 77-78). Galloway climbed up onto the operator's platform, took
several photographs, and noticed the absence of a pair of guard chains, intended as a barrier
between the operator's platform and the pan feeder (Tr. 41-44; Exs. P-1, P-2, P-3). Weathers
looked for the chains after the inspector brought the matter to his attention, but was unable to
find them (Tr. 43-44, 91, 102-04).
As a result of the investigation, Galloway issued two citations and two orders.

ID. Findin~s of Fact and Conclusions of Law
A. Citation No. 4135307
1. Fact of Violation
104(d)(l) Citation No. 4135307 charges a violation of30 C.F.R. § 56.14105, describing
the condition or practice as follows:
A fatal accident occurred at this mine on April 30, 1998, when the crusher
operator attempted to dislodge rocks which would not go through the jaw crusher.
The crusher operator was using a 12-pound sledge hammer to dislodge the rocks,
and was struck in the face when the head of the hammer was forcibly ejected from
the crusher. The crusher ·h ad not been shut off and blocked against hazardous
motion. Darwin Weathers, owner, knew or had reason to know the procedure was
used to clear blockages while the crusher was operating. This is an unwarrantable
failure to comply with a mandatory safety standard.
30 C.F .R. § 56.14105 provides that: "Repairs or maintenance of 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

1035

are effectively protected from hazardous motion."
The Commission broadly interprets "repairs or maintenance of machinery or equipment"
to encompass activities of breaking up and removing rocks clogging a crusher. Walker Stone
Company, Inc., 19 FMSHRC 48, 51 (January 1997), aff'd 156 F.3d 1076 (101h Cir. 1998). It is
undisputed that the crusher was running and the feeder had been turned off by Nelson when he
was fatally injured. One of the Jackson County Sheriff Department photographs, taken
contemporaneous with the accident and before the feeder had been "run out," depicts large rocks
lying flat at the end of the feeder just above the jaw crusher, establishing the likelihood of a
jammed feeder (Ex. P-13; Tr. 61-63). This photograph supports Weathers Crushing's position
that Nelson had been attempting to loosen rock blockage in the feeder with the sledge hammer,
rather than in the crusher, itself (Tr. 65-66, 118-120; Resp. Br. at 4). A "bridge" or blockage in
the feeder prevents rock from falling into the jaws of the crusher, but does not impede the actual
motion of the crusher (Tr. 94, 114-15).
Weathers Crushing argues, therefore, that if Nelson is found to have been "repairing or
maintaining" the feeder, it follows that he had complied with the standard, because he had turned
it off. It is this reasoning, however, that totally frustrates the. safety promoting purpose of the
standard. The fault in Weathers Crushing's position lies in considering the feeder and crusher as
two separate entities, operating independent of each other. On the contrary, they operate as a
unit, wherein the walls of the feeder are angled and its plates vibrate to jog rock down into the
jaws of the crusher, which reduces the rock to the size to which the dies have been adjusted (Tr.
49-51). In effect, the feeder is the gateway to the crusher, such that objects in the feeder are
openly exposed to the crusher's jaws.
Although speculation, since there were no eyewitnesses to the accident, it is likely that
Nelson entered the feeder after he had turned it off, and in attempting to clear the obstruction in
the feeder, dropped the sledge hammer, or somehow put it in contact with the running jaw
crusher, which spit the hammerhead back at him, resulting in the fatal blow to his face. It is
abundantly evident that had the crusher been turned off and blocked against hazardous motion,
the accident would have been avoided. When considering that Nelson, himself, could have
slipped and fallen into the moving jaws, it is clear that both feeder and crusher must be turned off
and blocked against motion when working in either component.

.·
' ··

....·

Accordingly, having found that Nelson was required to tum off both jaw crusher and
feeder, and block them against hazardous motion when he was unblocking the feeder, I conclude
that Weathers Crushing violated section 56.14105.
2. Significant and Substantial

.

i:..~~:

Section 104(d) of the Act designates a violation "significant and substantial" (''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
1036

"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).

Jn 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 (71h Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 10304 (5 1h 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, 501 (April 1998).
Inspector Galloway determined that the violation was S&S. Clearly, the hazard of
working in and around the feeder and jaw crusher, without turning off the power and blocking
the hazardous motion of both components, was a significant contributing cause of Nelson's fatal
accident. Therefore, i conclude that the violation was S&S.
3. Unwarrantable Failure
"Unwarrantable failure" is aggravated conduct consisting of more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001(December1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or· a serious lack ofreasonable care. Id. at 2001-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194(February1991).
The Commission has provided a practical framework in which to analyze whether a
violation resulted from unwarrantable failure. Among the factors to be considered are " the
extensiveness of the violation, the length of time the violative condition has existed, the
operator's efforts to eliminate the violative condition, ~d whether the operator has been placed
on notice that greater efforts are necessary for compliance." Mullins and Sons Coal Co., 16
FMSHRC 192, 195 (February 1994). The culpability determination required for a finding of
unwarrantable failure is similar to gross negligence or recklessness. It is more than a "knew or
should have known" test. Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 (October 1993).
The practice of using a sledge hammer to break off comers of obstructive rocks in feeders
was standard operating procedure at Weathers Crushing, and demonstrated by Berkey to Nelson
during Nelson's new employee indoctrination. Indeed, Weathers testified that he had been in the
rock crushing business f~r 23 years, had routinely engaged in the practice that ultimately killed
1037

Nelson, and had taught his son, a company employee of 15 years, to employ the same technique
(Tr. 88-90, 93, 99-100, 108-09, 111-12). The danger ofworki.I).g in and around the jaw crusher
while it is running is, or should be, visibly evident. Tragically, Nelson performed as he had been
instructed, to the extent that he worked in the feeder with the sledge hammer, in close proximity
to the running crusher. It is irrelevant whether negligence or inadvertence on Nelson's part
caused the sledge hammer to make contact with the crusher, because the danger arose from
exposure to the moving machinery, rather than the _activity in or around it. It is my finding,
therefore, that Weathers Crushing's conduct in instructing Nelson to place himself in and around
heavy, running equipment demonstrated a serious lack of reasonable care that was more than
ordinary negligence. Consequently, I find that the Secretary has proven that the violation was the
result of Weathers Crushing's unwarrantable failure to comply with the standard.
5. Penalty
While the Secretary has proposed a civil penalty of $25,000.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section l lO(i) of the Mine Act, 30 U.S.C. § 8200). See Sellesburg Co., 5
FMSHRC 287, 291-92 (March 1993), aff'd, 763 F. 2d 1147 (7th Cir. 1984).
Weathers Crushing is a small operator, with an overall history of violations that is not an
aggravating factor in assessing an appropriate penalty (Tr. 6). As stipulated, the proposed civil
penalty will not affect Weathers Crushing's ability to continue in business (Tr. 127-28).
The remaining criteria involve consideration of the gravity of the violation and the
negligence of Weathers Crushing in causing it. Considering that Nelson was fatally injured, I
find the gravity of the violation to be very serious. In assessing the level of negligence
attributable to Weathers Crushing, since Nelson was a rank-and-file employee, I have considered
the operator's supervision and training of Nelson, and have determined that the operator not only
failed to take reasonable steps to prevent Nelson's violative conduct, but encouraged it. See
Secretary ofLabor v. Southern Ohio Coal Co., 4 FMSHRC 1458, 1464 (1982). Accordingly,
and consistent with·my conclusion that the violation resulted from Weathers Crushing's
unwarrantable failure to comply with the standard, I ascribe high negligence to the operator.
Therefore, having considered Weathers Crushing's small size, seriousness of violation, high
degree of negligence, good faith abatement and no other mitigating factors, I conclude that the
$25,000.00 penalty, as proposed· by the Secretary, is appropriate.
The Secretary has charged Darwin Weathers under section l lO(c) for a violation of30
C.F.R. § 56.14105, and has proposed a civil of penalty of $250.00. Section 1lO(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
1038

..

. ... ,

: ;~

existence of a violative condition." Kenny Richardson, 3 FMSHRC 8, 16(January1981), aff'd
on other grounds, 689 F.2d 632 (61h Cir. 1982), cert. denied, 4~1 U.S. 928 (1983). Section
1 lO(c) liability is predicated on aggravated conduct that constitutes more than ordinary
negligence. Bethenergy Mines, Inc., 14 FMSHRC 1232, 1245 (August 1992).
Darwin Weathers, as president and owner of Weathers Crushing, had been in the rock
crushing business for 23 years, and despite assertions that using sledge hammers to clear
obstructions, with crushers running, had been a longstanding practice in his company, without
incident, the danger that the standard is intended to avoid and the standard of care required
should have been evident to him (Tr. 88-91, 92-93, 96-101). It is equally clear that Weathers
knowingly authorized Berkey to indoctrinate Nelson in dangerous work procedures (Tr.122-24).
Weathers' lack of due care was aggravated by the fact that he had hired Nelson without taking
steps to ascertain his level of experience on rock crushers (Tr. 57-58, 78-80). Consequently, the
Secretary has established that Darwin Weathers engaged in aggravated conduct constituting more
than ordinary negligence, and a civil penalty is warranted. The parties have stipulated that the
proposed penalty will not adversely affect Weathers' personal financial status (Tr. 130).
Accordingly, the Secretary's proposed penalty of$250.00 is appropriate.
B. Order No. 4135308
1. Fact of Violation

104(d)(l) Order No. 4135308 charges a violation of 30 C.F.R. § 56.18006, describing the
condition or practice as follows:
A fatal accident occurred at the mine on April 30, 1998, when the crusher
operator attempted to dislodge rocks which would not go through the jaw crusher.
The crusher operator was using a 12-pound sledge hammer to dislodge the rocks
and was struck in the face when the head of the hammer was forcibly ejected from
the crµsher. The crusher had not been shut off and blocked against hazardous
motion. The crusher operator had been on the job for about 2 Yi hours and had not
been indoctrinated in safety rules and safe working procedures. This is an
unwarrantable failure to comply with a mandatory safety standard.
30 C.F.R. § 56.18006 provides that "New employees shall be indoctrinated in safety rules
and safe work procedures."
It is abundantly clear form the record that Weathers hired Nelson with insufficient
knowledge of Nelson' s experience in operating rock crushers and other heavy equipment, and
that little time was spent training him to operate the jaw crusher, based on the assumption that
Nelson knew what he was doing. Moreover, what indoctrination Nelson was given familiarized
him with unsafe work procedures, after which he was essentially cast adrift. The fact that
Weathers and Berkey made themselves available to Nelson in the event of a problem, presumed
that Nelson had the experience to recognize when he needed help. It would appear that Nelson
1039

did not view the blockage as a problem requiring assistance, since he had been instructed on how
to resolve it himself with the sledge hammer. Unfortunately, to the extent that Nelson exposed
himself to the hazardous motion of the jaw crusher when he moved about the feeder, he was
performing his duties precisely as he had been instructed . Consequently, it is my finding that
Nelson's indoctrination in safety rules and safe work procedures was sorely lacking, and I
conclude, therefore, that Weathers Crushing violated section 56.18006.

·::..:

2. Significant and Substantial
Inspector Galloway found this violation to be S&S. In view of Nelson's fatal injuries,
this violation satisfies the Mathies criteria. "Clearly, it was a significant contributing cause to the
fatal accident." 156 F. 3d. at 1084-85. Consequently, I conclude that the violation was S&S.
3. Unwarrantable Failure

-:..:

.....

ti·-

Referring to the unwarrantable failure analysis respecting the previous citation, and
having found that the operator demonstrated a serious lack of reasonable care in supervising and
training Nelson to perform his duties safely, I conclude that the Secretary has proven that the
violation was the result of Weathers Crushing's unwarrantable failure to comply with the
standard.
4. Penalty

I have considered the six penalty criteria set forth in section l lO(i) of the Act, and have
discussed my analysis under the previous citation. Accordingly, I find that the $20,000.00
penalty proposed by the Secretary is appropriate.

C. Order No. 4135309
1. Fact of Violation
104(d)(2) Order No. 4135309 charges a violation of30 C.F.R. § 56.11012, and describes
the condition or practice as follows:
A fatal accident occurred at this mine on April 30, 1998, when the crusher
operator attempted to dislodge rocks which would not go through the jaw crusher.
The chains used as railing or barriers around the elevated work deck on the jaw
crusher were not in place. Hooks were welded to the vertical supports, but the
chains were missing, which created an opening approximately 40 inches high and
40 inches wide through which a person could fall either on the feed ramp, a
distance of 10 feet, or into the jaw crusher. This is an unwarrantable failure to
comply with a mandatory standard.

1040

30 C.F.R. § 56.11012 provides that "Openings above, below, or near travelways through
which persons or materials may fall shall be protected by railings, barriers, or covers. Where it is
impractical to install such protective devices, adequate warning signals shall be installed."
When MSHA' s accident investigation team arrived at the mine site the morning of May
1st, no mining was being conducted, having ceased on April 301h subsequent to the accident, and
after the material remaining in the feeder had been run through the crusher (Tr. 16-17, 28-30).
Weathers testified credibly that he was aware that he was required to have the guard chains in
place, that he was unaware that they were missing while the jaw crusher was operating, and that
he was unable to locate them at the mine site when Inspector Galloway informed him that they
were missing (Tr. 91, 102-03).
The Secretary raises several questions as to why the chains were never found, if they had
existed when the portable crusher was set up in the first place (Sec. Br. at 10). The questions
lose most of their significance in light of the activity that took place on the portable crusher
immediately following the accident. Numerous personnel had been dispatched to the site, county
deputy sheriffs and emergency medical technicians, who had climbed up onto the operator's
platform and into the feeder attempting to save Nelson's life, and had left behind a substantial
amount of medical debris (Tr. 91, 103-04; Exs. P-4, P-5, P-12, P-13). Moreover, the evidence
indicates that the guard chains were not a contributing factor to this accident--Nelson deliberately
entered the feeder from the operator's platform. Crediting Weathers' testimony that the guard
chains were in place prior to the accident, I find that intervening variables, beyond the operator's
control, contaminated the accident scene, so as to make a determination of what happened to the
chains, without further investigation, virtually impossible. It is my conclusion, therefore, that the
Secretary has failed to prove, by a preponderance of the evidence, that Weathers Crushing
violated section 56.11012.

D : Citation No. 4135310
I. Fact of Violation

104(a) Citation No. 4135310 charges a violation of30 C.F.R. § 56.20001, describing the
condition or practice as follows:

A fatal accident occurred at this mine on April 30, 1998, when the crusher
operator attempted to dislodge rocks which would not go through the jaw crusher.
He was using a 12-pound sledge hammer to dislodge the rocks, and was struck in
the face when the head of the hammer was forcibly ejected from the crusher,
which had not been shut off and blocked against hazardous motion. The Jackson
County, Oregon Chief Deputy Medical Examiner reported that a marijuana pipe
and a plastic bag containing marijuana were found on the victim' s person upon
1041

arrival at the hospital. This information was obtained from the Medical
Examiner's Report received on June 22, 1998. The citation is issued 7/16/98.

·.·

30 C.F.R. § 56.20001 requires that "Intoxicating beverages and narcotics shall not be
permitted or used in or around mines. Persons under the influence of alcohol or narcotics shall
not be permitted on the job." The evidence establishes that Nelson brought marijuana and a
marijuana pipe to the mine site and that he tested positive for drug usage. There is no evidence
that Weathers Crushing knew of Nelson's conduct. The Mine Act imposes strict liability on
mine operators for violation of standards, irrespective of fault. Western Fuels-Utah v. Fed. Mine
Safety & Health, 870 F.2d 711 (D.C. Cir. 1989); Rock ofAges Corp., 20 FMSHRC 106, 114
(February 1998); Wyoming Fuel Co., 16 FMSHRC 19, 21(January1994). As the Commission
has stated, "the principle of liability without fault requires a finding of liability even in instances
where the violation resulted from unpreventable employee misconduct." Western Fuels-Utah,
Inc., 10 FMSHRC 256, 261 (March 1998). Consequently, I conclude that the Secretary has met
her burden of establishing a violation of section 56.20001, despite my finding that Nelson's drug
possession and use were unknown to Weathers Crushing.
2. Penalty

I have considered the six penalty criteria set forth in section 11 O(i) of the Mine Act,
including the evidence that Weathers Crushing had a written drug policy that it had given to
Nelson as a new employee, and that there was no indication that Nelson was under the influence
of drugs while he was working at the mine (Tr. 104-05; Ex. R-1 ). I, therefore, ascribe no
negligence to the operator, and conclude that the $50.00 penalty, as proposed by the Secretary, is
appropriate.

· ,·

ORDER
Accordingly, it is ORDERED that Citation Nos. 4135307, 4135310 and Order No.
4135308 are AFFIRMED, Order No. 4135309 is DISMISSED, and Darwin Weathers is
ORDERED TO PAY a penalty of$250.00, and Weathers Crushing is ORDERED TO PAY a
penalty of $45,000.00 within 30 days of the date of this decision. Upon receipt of payment, these
cases are DISMISSED.

17 ~ a,;.,,;2~~
~ine R. Bulluck

Administrative Law Judge

1042

..·.·

Distribufion: (Certified Mail)
William W. Kates, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212
Roger A. Luedtke, Esq., Schwabe, Williamson & Wyatt, P.C., Pac West Center, Suite 1600-1800
1211 Southwest Fifth Avenue, Portland, OR 97204-3795
/nt

1043

·-:.

..

··.

..

'.

·:.··

·'.;.

·.·

ADMINISTRATIVE LAW JUDGE ORDERS

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

August 2, 2000
DARWIN STRATTON &·SON INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 2000-371-RM
Order No. 7966584; 4/24/2000
Docket No. WEST 2000-372-RM
Citation No. 7966585; 4/22/2000
Docket No. WEST 2000-373-RM
Order No. 7966587; 4/2212000

V.

Docket No. WEST 2000-374-RM
Citation No. 7941252; 4/26/2000
Docket No. WEST 2000-375-RM
Order No. 7941253; 4/26/2000
Docket No. WEST 2000-376-RM
Order No. 7941254; 4/2612000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. WEST 2000-377-RM
Order No. 7941255; 4/26/2000
Docket No. WEST 2000-378-RM
Order No. 7941256; 4/26/2000
Docket No. WEST 2000-379-RM
Order No. 7941257; 4/26/2000
Docket No. WEST 2000-380-RM
Order No. 7941258; 4/26/2000
Docket No. WEST 2000-381-RM
Order No. 7941259; 4/26/2000
Docket No. WEST 2000-382-RM
Order No. 7941260; 4/26/2000

1044

Docket No. WEST 2000-383-RM
Citation No. 7941261; 4/26/2000
~:.~

Docket No. WEST 2000-384-RM
Citation No. 7941262; 4/26/2000
Docket No. WEST 2000-385-RM
Order No. 7941263; 412612000
Docket No. WEST 2000-386-RM
Order No. 7941264; 4/26/2000
Docket No. WEST 2000-387-RM
Order No. 7941265; 4/27/2000

..
~=-:=:
I~ I

1..:.::.

..

..

...

Docket No. WEST 2000-388-RM
Order No. 7941266; 412612000

..
f~

Docket No. WEST 2000-389-RM
Order No. 7941267; 4/26/2000

..

Docket No. WEST 2000-390-RM
Order No. 7941268; 4/26/2000

..
Docket No. WEST 2000-391-RM
Citation No. 7941269; 4/27/2000
Docket No. WEST 2000-392-RM
Citation No. 7941270; 4/27/2000
Docket No. WEST 2000-393-RM
Order No. 7941271; 4/27/2000
:·:::.

Docket No. WEST 2000-394-RM
Order No. 7941272; 4/2712000
Docket No. WEST 2000-395-RM
Citation No. 7941273; 4/27/2000
Docket No. WEST -2000-396-RM
Citation No. 7941274; 4/27/2000

·-·:·
;.;.._:

1:.::

1045

Docket No. WEST 2000-397-RM
Order No. 7941275; 4/27/2000
Docket No. WEST 2000-398-RM
Citation No. 7941276; 4/27/2000
Docket No. WEST 2000-443-RM
Order No. 7966588; 412212000
Rattlesnake Pit
Mine ID 42-02283
ORDER TO RESPOND TO SECRETARY OF LABOR'S
MOTION FOR SUMMARY DECISION

The Secretary of Labor filed a motion for summary decision on the issue of whether the
Department of Labor's Mine Safety and Health Administration (''MSHA") has jurisdiction over
the Rattlesnake Pit. Under the Commission's Procedural Rules, Darwin Stratton & Son, Inc., has
10 days to respond to the Secretary's motion. 29 C.F.R. § 2700.10. Darwin Stratton must mail
its response to the Secretary's motion to me on or before August 15, 2000.
The Commission's summary decision rule provides that a "motion for summary decision
shall be granted only if the entire record, including pleadings, depositions, answers to
interrogatories, admissions, and affidavits shows: (1) that there is no genuine issue as to any
materials facts; and (2) that the moving party is entitled to summary decision as a matter of law."
29 C.F.R. § 2700.67(b). The Commission's procedural rule further states that a motion for
summary decision must be supported. The Secretary of Labor attached an affidavit ofMSHA
Inspector Dennis Harsh in support of its motion. In the affidavit, Inspector Harsh sets forth facts,
based on his personal knowledge, to support the Secretary's position that the Rattlesnake Pit is a
·
mine subject ~o the jurisdiction ofMSHA.
The Commission 's procedural rule provides that "when a motion for summary decision is
made and supported as provided in this rule, an adverse party may not rest upon the mere
allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a genuine issue for a hearing." 29
C.F.R. § 2700.67(c). It also states that "if a party does not respond, summary decision, if
appropriate, shall be entered against him." Id.
As applied in these cases, this procedural rule requires Dawson Stratton to respond to the
Secretary's motion if it continues to believe that MSHA is without jurisdiction to inspect the
Rattlesnake Pit and issue citations for violations of safety standards. Its response must set forth
specific facts to show that MSHA is without jurisdiction. Simply arguing that MSHA does not
or should not have jurisdiction over the Rattlesnake Pit is not sufficient.

1046

As I have stated in the past, these cases involve a fatality and the Secretary may
subsequently propose high monetary penalties. Because the issu.es raised in the cases may have
significant implications for Darwin Stratton & Son, Inc, it should seriously consider hiring an
attorney to represent it in these cases. Darwin Stratton's conduct in these cases indicates to me
that it does not understand the importance of these cases. For example, using a rubber stamp, it
stamped "Not Accepted" six times on correspondence it received from counsel for the Secretary
of Labor on July 271h and mailed a copy to me. It also stamped "Without Dishonor U.C.C. 3505" on this same document. Using rubber stamps on documents will not have any bearing on
the results in these cases: In addition, the Uniform Commercial Code is not applicable to these
proceedings, including section 3-505.
As I have previously stated, MSHA has not proposed monetary penalties for the citations
and orders it issued at the Rattlesnake Pit. Until these penalties are proposed, settlement is more
difficult. If Darwin Stratton continues to treat these cases in a frivolous manner, I may cancel the
hearing set for October 3rc1 and stay the cases until civil penalty cases have been filed. At that
time, Darwin Stratton will know what its potential monetary liability is and the parties will be in
a better position to discuss settlement. Darwin Stratton should understand that it will not be able
to challenge any citations a second time in a civil penalty case that I affirm following a prepenalty hearing. If the cases are stayed, on the other hand, all issues can be considered at one
hearing.

Richard W. Manning
Administrative Law Judge

. ..

,:

\:·

Distribution:

Mr. Pat Morgan, Darwin Stratton & Son, Inc., P.O. Box 1089, St. George, UT 84771
John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716

RWM
1047

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

August 10, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of CURTIS. STAHL,
Complainant
v.

DISCRIMINATION PROCEEDING

A & K EARTH MOVERS, INC.,
Respondent

Belle Vista Pit
Mine ID 26-02046

Docket No. WEST 2000-242-DM
MSHA Case No. WE MD 98-18

ORDER GRANTING. IN PART.

AND
DENYING, IN PART. MOTION TO COMPEL

This case is before me on a Complaint of Discrimination under section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c). The Respondent filed a request
for production of documents and interrogatories with the Secretary. In responding to those
requests, the Secretary redacted certain language from statements and otheiwise refused to
provide information based on the "informant's privilege." The respondent has filed a motion to
compel the information that the Secretary claims is covered by the privilege. The Secretary
opposes the motion. For the reasons set forth below, the motion is granted, in part, and denied,
in part.
Commission Rule 61, 29 C.F.R. § 2700.61, provides that: "A Judge shall not, except in
extraordinary'circµmstances, disclose or order a person to disclose to an operator or his agent the
name of an informa,nt who is a miner." This rule codifies the long established right of the
government to withhold from disclosure the identity of any person who provides information
about violations of the law to government officials. Roviaro v. U.S., 353 U.S. 53 (1957); Bright
Coal Co., 6 FMSHRC 2520, 2524 (November 1984). It is the name of the informant, not the
contents of the statement, that is_protected, unless disclosure of the contents would tend to reveal
the identity of the informant. Asarco, Inc. , 12 FMSHRC 2548, 2554(December1990) (Asarco I)
(citing Roviaro at 60).
It is apparent from the motion and response, as well as telephone conference calls with
the both counsel and the judge, that the controversy, in this case, concerns two statements given
to the Mine Safety and Health Administration (MSHA) investigator investigating Mr. Stahl's
complaint. The first is the statement ofEleuterio Jacinto made on August 18, 1998. It consists
of five pages. Words have been redacted from two sentences on page three of the statement. The
second statement is a Memorandum of Interview dated January 14, 1999. It contains three pages.

1048

The identity ofthe·interviewee, his address and telephone number have been redacted on the first
page. About half of the questions and answers on the second page of the statement have been
redacted.
In its response to the motion, the Secretary has provided unredacted copies of the
statements for in camera review. Based on a review of the Jacinto statement, I conclude that
both of the redactions would disclose the identity of an informant and, therefore, are covered by
the informant's privilege. Turning to the January 14 memorandum, I conclude that most of the
redacted language either·identifies the informant or would tend to reveal his identity. However, I
conclude that the question and answer in lines nine and ten, the first four redacted words in line
25, and the questions and answers in lines 27 through 30 neither identify the informant nor tend
to reveal his identity. 1 This conclusion is based both on the words thems~lyes·and the fact that
counsel for the Secretary was unable to articulate how they came within..the privilege when asked
about the language during a conference call. Accordingly, I will order that the indicated words
and lines be revealed to counsel for the Respondent.
Finding that the informant's privilege is applicable does not end the matter. As the
Commission has said, "if the judge concludes that the privilege is applicable, he should next
conduct a balancing test to determine whether the respondents' need for the information is
greater that the Secretary's need to maintain the privilege to protect the public interest." Bright,
6 FMSHRC at 2526. The burden is on the Respondent to show that disclosure of the statements
is necessary to a fair determination of the case. Id. Factors to be considered in conducting the
balancing test include: (1) whether the Secretary is in sole control of the requested material, (2)
whether the material is already within the Respondent's control, and (3) whether the Respondent
has other avenues available from which to obtain the "substantial equivalent of the requested
material." Id.
In connection with these criteria, the Commission has held that having access to the same
individuals with knowledge of the facts as the Secretary's investigators and being able to
question them in the same manner, under subpoena, if necessary, means that the Respondent
does have other avenues available from which to obtain the information. Asarco, Inc., 14
FMSHRC 1323, 1331(August1992) (Asarco II). Consequently, I conclude that A & K can get
substantially the same information contained in these statements by interviewing, or deposing,
miners who worked at the Bella Vista Pit during the period of June and July 1998.
Based on the above, I conclude that the Respondent has not shown that disclosure of the
statements is necessary to a fair determination in this case. In addition, I note that on August 11,
2000, counsel for the Secretary must furnish to the Respondent the names of the miner witnesses
he intends to call at the hearing . If either of these informants is to be a witness, the Secretary
must also provide the complete statement of the witness to counsel for the Respondent, for the
purpose of refreshing the witness' recollection or impeaching his credibility at the trial. Id. Thus,

1

Lines are counted from the top of the page. Only lines containing words are counted.
1049

if the Respondent has not already undertaken to interview, or depose, the miners at the Bella
Vista Pit, it will have the statements it desires.
Order
As discussed above, the Motion to Compel is GRANTED to the extent that the Secretary
is ORDERED to provide to the Respondent the questions and answers found on lines 9, 10, 2730 and the four words beginning on line 25 of the January 14, 1999, statement. In all other
respects, the Motion to Compel is DENIED.

1~~

Administrative Law Judge
(703) 756-6213

Distribution: (by facsimile)
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215
Richard L. Elmore, Esq., Hale Lane Peek Dennison Howard and Anderson, 100 West Liberty
Street, Tenth Floor, Reno, NV 89501
Int

1050