MARCH 1996

COMMISSION DECISIONS AND QRDERS
03-14-96
03-14-96
03-14-96
03- 1 5-96
03-18-96
03-20-96

Broken Hill Mining Company
Faith Coal Compan y
Sec. Labor on behalf of Ramon Franco
v. W.A. Morris Sand & Grav el
Sec. Labor on behalf of Wm. Kaczmarczyk
v. Reading Anthracite Company
Power Operating Company
REB Enterprises, Inc.

KENT 94 - 972
SE
91-97

Pg . 291
Pg . 294

WEST 96 - 120 - DM

Pg. 296

PENN 95 - 1 - D
PENN 93-51
CENT 95-29-M

Pg. 299
Pg. 303
Pg. 311

CENT 95 - 29 - M
CENT 95-8 - RM
KENT 95 - 322
KENT 96-38

Pg.
Pg.
Pg.
Pg.

315
317
337
339

KENT 95-597-D
KENT 95-451
WEVA 93-82-R
WEVA 93-146-A
WEVA 95-114
PENN 93 - 15

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

341
349
357
363

WEST 95-538-RM
SE
96-81-R
YORK 95-102-M
WEST 93-462-M
WEST 94 - 369-M
WEST 94 - 407 - M
LAKE 94 - 3
LAKE 95 - 403 - R
PENN 93-51

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

LAKE 95-404
WEST 95-155-M
CENT 95-13

Pg. 467
Pg. 472
Pg. 478

ADMINISTRATIVE LAW JUDGE DECISIONS
02-09-96
03-04-96
03-05-96
03-05-96
03-06-96
03-07-96
03 - 07 - 96
03-07-96
03-08-96
03-13-96
03-14-96
03-20 - 96
03-20-96
03-25-96
03-25-96
03-27-96
03-29-96
03-29-96
03 - 29 - 96

REB Enterprises, Inc.
ASARCO, Incorporated
Narrows Branch Coal, Inc.
The Pittsburg & Midway Coal Mining Co.
Sec. Labor on behalf of Ronnie Gay
v. Ikerd-Bandy Company
J B D Mi~ing Company, Inc.
Consolid~tion Coal Company
consolidation coal Company
Opportunity Trucking Inc.
L & J Energy Company, Inc.
Samuel & Nancy Sanders on behalf
of Joseph Sanders v. Sec. Labor
Jim Walter Resources, Inc.
General Road Trucking Corporation
Contractors Sand & Gravel Supply, Inc.
Tide Creek Rock, Inc.
LAC Bullfrog Incorporated
Freeman United Coal Mining
Amax Coal company
Power Operating Company

371

373
377

380
382
384
390
422
438
460
465

ADMINISTRATIVE LAW JUPGE ORDERS
02-26-96
03-07-96
03-08-96

Kyle J. Wethington, empl oyed by
Amax coal company
ASARCO, Incorporated
Pittsburg & Midway Coal Mining Co.

i

MABCB

1996

Reyiew was granted ·in the following case dµring the month of March;
Secretary of Labor, MSHA v. Harold Moody, employed by Grand River Quarry, Inc.,
Docket No . CENT 95-214-M. (Judge Arnchan, January 26, 1996)
Secretary of Labor, MSHA v. Gouverneur Talc Company, Docket No. YORK 95-70-M.
(Judge Weisberger, January 29, 1996)
Secretary of Labor, MSHA on behalf of Ramon Franco v. W. A. Morris Sand &
Gravel, Inc . , Docket No. WEST 96-120-DM.
(Judge Manning, February 15, 1996)
Secretary of Labor, MSHA v. REB Enterprises, Inc., Docket Nos. CENT 95-20-M,
etc. (Judge Weisberger, February 9, 1996 - printed in this issue)
Reyiew was denied in the following case dµring the month of March;
Secretary of Labor, · MSHA v. U.S. Coal Incorporated, Docket No. SE 93-119.
(Judge Fauver , February 5, 1996)

ii

COMMISSION DECISIONS AND ORDERS

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

March 14, 1996

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

v.

Docket No. KENT 94-972

BROKEN HILL MINING COMPANY, INC.

ORDER

On October 11, 1995, the Commission granted the petition for discretionary review filed
by Broken Hill Mining Company, Inc. ("Broken Hill"). Pursuant to Commission Procedural
Rule 75, 29 C.F.R. § 2700.75, 1 Broken Hill's opening brief was due to be filed by November 13,
1995. To date, no brief has been filed. On January 26, 1996, the Secretary of Labor filed a
Motion to Dismiss for Want of Prosecution pursuant to Commission Procedural Rule 75(e),
29 C.F.R. § 2700.75(e).2 Broken Hill has filed no opposition to the motion.

1

Rule 75 provides, in part:
(a) Time to file. (1) Opening and response briefs.
Within 30 days after the Commission grants a petition for
discretionary review, the petitioner shall file his opening brief. If
the petitioner desires, he may notify the Commission and all
other parties within the 30-day period that his petition and any
supporting memorandum are to constitute his brief. . . .

2

Rule 75(e) provides:

Consequences of petitioner's failure to file brief. If a
petitioner fails to timely file a brief or to designate the petition as
his brief, the direction for review may be vacated.

291

Broken Hill is hereby ordered to show cause within 14 days of the date of this order why
its appeal should not be dismissed.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

292

Distribution:
Hobart W. Anderson, President
Broken Hill Mining Company, Inc.
P.O. Box 356
Sidney, KY 41564
(Certified Mail)
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
(Certified Mail)

29 3

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

March 14, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. SE 91-97, etc.

V.

FAITH COAL CO.

ORDER

On August 28, 1995, the Commission granted the cross petitions for discretionary review
filed by Faith Coal Co. ("Faith") and the Secretary of Labor. Pursuant to Commission
Procedural Rule 75, 29 C.F.R. § 2700.75, 1 Faith's opening brief was due to be filed on
September 27, 1995. On January 26, 1996, the Secretary filed a Motion to Dismiss For Want
of Prosecution ("Motion") pursuant to Commission Procedural Rule 75(e), 29 C.F.R. §
2700.75(e). 2 On February 1, the Commission received Faith's response to the Secretary's
opening brief. To date, the Commission has not received Faith's opening brief, nor has Faith
designated its petition as its brief. Further, Faith has filed no opposition to the Motion.

1

Rule 75 provides, in part:
(a) Time to file. (1) Opening and response briefs.
Within 30 days after the Commission grants a petition for
discretionary review, the petitioner shall file his opening brief. If
the petitioner desires, he may notify the Commission and all
other parties within the 30-day period that his petition and any
supporting memorandum are to constitute his brief. . . .

2

Rule 75(e) provides:
Consequences ofpetitioner's failure to file brief If a
petitioner fails to timely file a brief or to designate the petition as
his brief, the direction for review may be vacated.

294

Faith is hereby ordered to show cause within 14 days of the date of this order why its
appeal should not be dismissed.

~d . ~

J~e ADO)fle)Commissioner

~. co?br
Marc Lincoln Marks, Commissioner

295

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, STH FLOOR

WASHINGTON, D.C. 20006

March 14, 1996

SECRETARY OF LABOR, on behalf
RAMON S. FRANCO
Complainant
Docket No. WEST 96-120-DM

V.

W.A. MORRIS SAND AND
GRAVEL, INC.,
Respondent

DIRECTION FOR REVIEW
DENIAL OF REVIEW AND
DENIAL OF STAY OF TEMPORARY REINSTATEMENT

On February 26, 1996, respondent W.A. Morris Sand and Gravel ("Morris") filed a
petition for discretionary review of the February 15, 1996, orders of Administrative Law Judge
Richard W. Manning granting the Secretary's application for temporary reinstatement and
denying Morris' motions to dismiss. Morris also has requested a stay of the temporary
reinstatement order.
Upon consideration of Morris' petition and request, the Secretary's response in opposition
and respondent's reply, the petition for review is granted as to the issue ofjurisdiction, i.e.
whether the complainant is a miner. In all other respects the petition is denied.

296

Respondent's request for a stay of the temporary reinstatement order fails to demonstrate
compelling or extraordinary circumstances, and is therefore denied. See Perry Transport, Inc., 15
FMSHRC 196, 198 (February 1993).

297

.. : ··- ..

Douglas White, Esq.
Chris Schuman, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Susanne Lewald, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson Street, Suite 11 10
San Francisco, CA 94105
Phil B. Hammond
Hammond, Natoli & Tobler, P.C.
3101 N. Central Ave., Suite 600
Phoenix, AZ 85012-2639
Richard W. Manning
Administrative Law Judge
Federal Mine Safety and Health
Review Commission
1244 Speer Boulevard #280
Denver, CO 80204-3582

298

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

March 15, 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
WILLIAM KACZMARCZYK
v.

Docket No. PENN 95-1-D

READING ANTHRACITE COMPANY

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

DECISION

BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On May 24, 1995, Administrative Law
Judge Arthur J. Amchan determined that the Reading Anthracite Company ("Reading") had
violated section 105(c) of the Mine Act, 30 U.S.C. § 815(c), when it transferred William
Kaczmarczyk from a light duty position to workers' compensation status. 17 FMSHRC 784
(May 1995) (ALJ). On September 28, 1995, a hearing was held on the issues of civil penalty and
damages. 17 FMSHRC 2065, 2066 (November 1995) (ALJ). The parties stipulated that
Kaczmarczyk was entitled to receive $4,942.42 "to compensate for economic loss" as a result of
the discrimination. Id at 2066. The judge awarded an additional $156 to compensate
Kaczmarczyk for travel expenses that he incurred in seeking another job, for total "damages" of
$5,098.42. Id. at 2066-67, 2069.
In December 1995, Reading paid Kaczmarczyk $3,945.06. Reading apparently treated all
or most of the monetary award as wages subject to income tax withholding. On December 22,
1995, the Secretary filed a petition for discretionary review with the Commission. The Secretary
stated that an attempt was made to resolve the dispute with Reading's counsel but that Reading
was unwilling to retreat from the position that the monetary award was subject to withholding
allowances and taxes. PDR at 3. The Secretary sought review from the Commission, ~ther than
reconsideration from the judge, because the judge no longer had jurisdiction under Commission

299

Rule 69(b), 29 C.F.R. § 2700.69(b) (1995), once his decision issued. Id. at 1-2. The Secretary
concluded that, "[s]ince the record is unclear as to the intention of the parties and the judge's
order is not clear on the issue of allocation of the monetary award," the matter should be
remanded to the judge for clarification. Id at 3-4. Reading did not respond.
On December 29, 1995, the Commission granted the petition and stayed briefing pending
further order of the Commission.
Apparently Reading does not dispute that, under the terms of the stipulation approved by
the judge and his further order regarding travel expenses in the amount of $156, Kaczmarczyk is
entitled to a gross amount of $5,098.42. There is, however, disagreement between the parties as
to whether that amount is subject to income tax withholding in its entirety. That issue is
governed by the terms of the Internal Revenue Code, not the Mine Act. In order for both
Reading and Kaczmarczyk to treat the damage award properly for income tax purposes, the basis
for the stipulated damages must be categorized in appropriate detail.

300

Accordingly, we remand the matter for further appropriate proceedings.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

-·-

30 1

Distribution

W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Martin J. Cerullo, Esq.
Cerullo, Datte & Wallbillich, P.C.
Second Street & Laurel Blvd.
P.O. Box450
Pottsville, PA 17901
Administrative Law Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

302

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

March 18 , 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 93-51

V.

POWER OPERATING COMPANY, INC.

BEFORE: Jordan, Chairman; Doyle, Holen, and Marks, Commissioners 1

DECISION

BY: Jordan, Chairman; Holen and Marks, Commissioners
This civil penalty proceeding involves a violation of30 C.F.R. § 77.1710(a), which
requires the wearing of face-shields or goggles when hazards to the eyes exist.2 Administrative
Law Judge Avram Weisberger concluded that Power Operating Company, Inc. ("Power")
violated the standard but that the violation was not significant and substantial ("S&S").
16 FMSHRC 591(March1994) (ALJ). The Commission granted the Secretary of Labor's
petition for discretionary review, which challenges the judge's S&S determination. For the
reasons that follow, we reverse and remand for reassessment of the civil penalty.

1

Commissioner Riley assumed office after this case had been considered and decided at
a Commission decisional meeting. A new Commissioner possesses legal authority to participate
in pending cases, but such participation is discretionary. Mid-Continent Resources, Inc., 16
FMSHRC 1218, n.2 (June 1994). In the interest of efficient decision making, Commissioner
Riley has elected not to participate in this matter.
2

Section 77.l 710(a) states:
Protective clothing or equipment and face-shields or
goggles shall be worn when welding, cutting, or working with
molten metal or when other hazards to the eyes exist.
30 3

I.
Factual and Procedural Back~ound
During an inspection of Power's Frenchtown mine in Clearfield County, Pennsylvania,
on September 16, 1992, Inspector Charles Lauver of the Department of Labor's Mine Safety and
Health Administration ("MSHA") noticed a miner steam cleaning the side of a rock truck with a
"steam jenny,"3 which applies "high pressure steam and liquid" through a hose. 16 FMSHRC at
606; Tr. 212-13.4 According to Lauver, such steam cleaning causes "dirt, grease, [and] all
manner of material to become dislodged and ... splatter in all directions." Id. at 606-07; Tr. 213.
Lauver observed that the miner was not wearing goggles or a face shield and that his face was
"splattered with black spots from the material that had been sprayed up." Id. at 606; Tr. 213. He
thereupon issued a citation to Power alleging an S&S violation of section 77.171 O(a).
Power conceded the violation but contested the S&S designation. 16 FMSHRC at 606.
The judge concluded that the violation was not S&S and assessed a $100 civil penalty. Id. at
607.

II.
Disposition

In analyzing the S&S issue, the judge found that an injury-causing event involving the
miner's eyes was reasonably likely to occur as a result of the violation. 16 FMSHRC at 607. He
opined, however, that the record contained no evidence regarding the seriousn~ss of such an
injury. Id. at 607.
The Secretary argues that the judge's finding that there was no evidence regarding the
severity of an eye injury erroneously overlooks the inspector's contemporaneous notes, which
were entered into evidence and state that a "serious eye injury could result." PDR at 4 (citing
Gov't Ex. 21.)5 The Secretary further contends that "the splattering of foreign material into the
eye under high pressure, is recognized by most people, in light of common life experiences, to be
very likely ... of a serious nature." PDR at 4; see also id. at 5 n.2.

3

A ')enny" is "a machine for cleaning ... surfaces by means of a jet of steam."
Webster's Third New International Dictionary (Unabridged) 1213 (1986).
4

Transcript references are to the volume of testimony taken on December 8, 1993.

5

The Secretary designated his PDR as his brief.

30 4

Power responds that the judge properly concluded that the Secretary failed to establish
the likelihood of a reasonably serious injury. P. Br. at 2-3. It asserts that the testimony of its
witness, Peter Baughman, an experienced jenny operator, who perceived no serious hazard in
using it without protective equipment, constitutes substantial evidence in support of the judge's
determination. Id at 3. In its view, the Secretary's argument based upon "common life
experiences" lacks common sense and impennissibly attempts to shift the burden of proof. Id. at
3-5.
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on 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 Div., Nat 'I Gypsum Co., 3
FMSHRC 822, 825-26 (April 1981). In Mathies Coal Co., 6 FMSHRC 1(January1984), the
Commission further explained:
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.

Id at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Secretary ofLabor, 861 F.2d 99, 103-04 (5th Cir. 1988), affg
9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria). An evaluation of the
reasonable likelihood of injury should be made assuming continued normal mining operations.
US. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).
The first and second Mathies elements are established. Power concedes the violation
(Tr. 210) and the record shows that the violation contributed to the hazard of exposing the jenny
operator's unprotected eyes to flying debris from the high pressure jet of steam and water. 16
FMSHRC at 606; Tr. 212-13; see also Tr. 222-23. Concerning the third Mathies element,
substantial evidence supports the judge's finding that there was a reasonable likelihood of injury
resulting from that hazard.6 Usually, the nozzle of the jenny's hose is held only about three feet

6

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163
(November 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We
are guided by the settled principle that, in reviewing the whole record, an appellate tribunal must

30 5

away from the truck being cleaned. It was undisputed that the steam cleaning causes dirt, grease,
and other material to dislodge and splatter loose and that, in fact, the jenny operator's face was
spattered with spots of"sprayed up" material when the inspector observed the violative situation.
16 FMSHRC at 606; Tr. 212-13, 222. Thus, on this record, it is clear that an injury-producing
event of materials dislodged from the truck during steam cleaning being propelled into the
equipment operator's unprotected eyes was reasonably likely to occur.
We conclude, however, that the judge's ultimate S&S determination is erroneous. With
respect to the fourth Mathies element, he failed to consider all the relevant evidence and his
finding is not supported by substantial evidence.
In Mathies, the Commission recognized that "[a]s a practical matter, the last two
[Mathies] elements will often be combined in a single showing." 6 FMSHRC at 4. Much of the
evidence on this record that establishes the reasonable likelihood of an eye injury also
demonstrates that the injury would be reasonably serious. Steam cleaning the rock truck required
the jenny operator to shoot a pressurized jet of hot water and steam at close range (approximately three feet), forcibly dispersing whatever debris had accumulated on the truck. Hot water
and dislodged materials splattered on the operator's unprotected face. These facts support only
one conclusion: forcibly propelled debris such as dirt, grease, or hot water striking the eye is
7
reasonably
,. likely to cause reasonably serious trauma.
Moreover, in Ozark-Mahoning Co., 8 FMSHRC 190 (February 1986), the Commission
observed in general terms that, for S&S purposes, "it is obvious that whenever foreign objects
are propelled into the eye there is a reasonable likelihood of loss or impairment of vision as well
as injury." 8 FMSHRC at 192. Although that case involved different facts, the haz.ard of rock
fragments propelled through the air as a result of percussion drilling, the Commission did not
confine its observation to that context.
Contrary to the judge' s view, the record also contains evidence of the inspector's opinion
regarding the severity of such injury. The citation issued by the inspector (Gov't Ex. 29) and his
contemporaneous notes (Gov't Ex. 21), both introduced into the record without objection (Tr.
212, 214-15), state that the eye injury likely to result from the violation would be serious. On
cross-examination, the operator's counsel asked the inspector about the somewhat different

also consider anything in the record that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
7

Chairman Jordan and Commissioner Marks decline to accord any weight to
Baughman's assertion that he had so far avoided eye injury while steam cleaning without goggles
(Tr. 220-22). It would be inconsistent with the safety promoting goals of the Mine Act to permit
an operator to defend itself against an S&S designation in a citation by presenting evidence of its
previous failures to comply with the standard in question.

306

wording of his injury characterizations on these two documents, and the inspector replied, in
clarification, that a serious eye injury was "highly likely," not just "reasonably likely." Tr. 216.
The judge overlooked this relevant documentary and testimonial evidence and~ hence, failed to
address the record adequately. See, e.g., Mid-Continent Resources, Inc., 16 FMSHRC 1218,
1222 (June 1994), and authorities cited. In concluding that the fourth Mathies element has been
established, the Commission has relied on the opinions of a mine inspector concerning the
seriousness of potential injury, including opinions set forth in the inspector's citation. E.g.,
Zeigler Coal Co., 15 FMSHRC 949, 954 (June 1993). Accord Buck Creek, 52 F.3d at 135-36.
The evidence of record supports no other conclusion than the reasonably serious nature of
the eye injury likely to occur as a result of the violation. See generally Donovan v. Stafford
Constr. Co., 732 F.2d 954, 961 (D.C. Cir. 1984). We therefore conclude that the judge' s
contrary finding with regard to the fourth Mathies element is not supported by substantial
evidence. Accordingly, we reverse.8
III.
Conclusion
For the foregoing reasons, we reverse the judge's determination that the violation was not
S&S andremand for reconsideration of the civil penalty.

8

Given our conclusion, we need not address the Secretary's "common life experience"
presumption (S. Br. at 4).

30 7

Commissioner Doyle, dissenting:
I must respectfully dissent from my colleagues' decision to reverse the administrative law
judge's determination that the Secretary of Labor had failed to carry his burden of proving that an
injury resulting from the violation in issue was reasonably likely to be reasonably serious. The
majority has concluded that the judge's decision is not supported by substantial evidence and has
reversed the judge based on their own determination that the "facts support only one oonclusion:
forcibly propelled debris such as dirt, grease, or hot water striking the eye is reasonably likely to
cause reasonably serious trauma." Slip op. at 4. The facts on which my colleagues rely to
establish that conclusion are: (1) a pressurized jet of hot water and steam was being shot at close
range, dispersing debris accumulated on the truck; and (2) hot water and dislodged materials
splattered on the operator's face. Id I disagree that these facts give rise to no other conclusion
than that it is reasonably likely that a reasonably serious injury will result.
That all eye injuries are not ipso facto serious is evidenced by the Secretary's own
regulations for the reporting of accidents, injuries, and illnesses set forth at 30 C.F.R., Part 50.
Sections 50.20-3(a)(5)(i) & (ii) set forth the criteria for differentiating, for purposes of eye
injuries, between first aid and medical treatment. First aid encompasses irrigation of the eye,
removal <.M foreign material not imbedded in the eye, and the use of non-prescription eye
medications. 30 C.F.R. § 50.20-3(a)(5)(i). Medical treatment encompasses removal ofimbedded
foreign objects, use of prescription medications, and other professional treatment. 30 C.F.R.
§ 50.20-3(a)(5)(ii). First aid is characterized as "one-time treatment, and any follow-up visit for
observational purposes, of a minor injury" (emphasis added). 30 C.F.R. § 50.2(g). It appears that
the potential injury here could well fall into the category of eye injury characterized by the
Secretary as minor (one requiring only first aid) and which need not even be reported to MSHA
on its Mine Accident, Injury, and Illness Report Form 7000-1. 30 C.F.R. §§ 50.2, 50.20. Thus, I
disagree with my colleagues that the only possible conclu.sion is that forcibly propelled "dirt,
grease, or hot water striking the eye is reasonably likely to cause reasonably serious trauma." Slip
op. at 4 .
The majority also relies, in part, on the inspector's unsupported allegation, as set forth in
the citation and his notes, that the injury would be serious. Neither document gives a basis for the
inspector's opinion nor did he testify as to the basis for that opinion. Under my colleagues'
analysis, the mere allegations set forth by the inspector in a citation or order would establish a
prima facie case as to those allegations, including allegations that a violation wa:s S&S, and, as
noted by Power, P.Br. at 3-5, shift the burden to the operator to rebut those allegations. I
disagree that the Secretary's burden of proof is so easily met.
I believe that my colleagues also err in relying on the facts of another case, OzarkMahoning Co., 8 FMSHRC 190 (February 1986), to establish S&S in this case. Slip op. at 4.
The Commission has held that an S&S determination is a factual issue and must be based on the
particular facts surrounding the violation, including the nature of the mine involved. Peabody

308

Coal Co., 17 FMSHRC 508, 511-12 (April 1995); Texasgulf, Inc., 10 FMSHRC 498, 501 (April
1988). Moreover, the facts in the two cases are not the same. In Ozark-Mahoning, the
undisputed evidence showed that miners without eye protection were using a percussion drill, not
a hose, to drill into rock, not to clean a vehicle, and that rock fragments, not dirt, ·grease, or hot
water, were being propelled as a result. 8 FMSHRC at 191. I do not agree that the facts of
Ozark- Mahoning establish that the potential eye injury here is reasonably likely to be of a
reasonably serious nature.1
Thus, I would affirm the judge' s conclusion that the Secretary failed to sustain his burden
of proving that the violation was S&S.

1

In Ozark-Mahoning, the Commission relied primarily on the evidence of record as
support for the judge' s determination that the injury was reasonably likely to be reasonably
serious, not on the dicta cited by the majority. 8 FMSHRC at 192.

30 9

Distribution

Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Kathryn A. Kelly, Esq.
Pepper, Hamilton & Scheetz
P.O. Box 1709
Wilmington, DE 19899
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

310

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 8TH FLOOR
WASHINGTON, D.C. 20006

March 20 . 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. CENT 95-29-M
CENT 95-30-M

v.

REB ENTERPRJSES, INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. CENT 95-239-M

HAROLD MILLER, employed by
REB ENTERPRJSES, INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. CENT 95-240-M

RICHARD E. BERRY, employed by
REB ENTERPRJSES, INC.
BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners
ORDER
BY Tiffi COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On February 9, 1996, Administrative Law
Judge Avram Weisberger issued an Order of Default entering judgment in favor of the Secretary
of Labor and ordering REB Enterprises, Inc. ("REB") and Harold Miller and Richard E. Berry,
employed by REB, to pay civil penalties of $7,550, $1,200, and $1,600, respectively. For the
reasons that follow, we vacate and remand.

311

On December 5, 1994, the Secretary filed petitions, which REB answered, for assessment
of civil penalties against REB for alleged violations of various safety standards. On September
1, 1995, the Secretary filed petitions for assessment of civil penalties against Miller and Berry
pursuant to section 1 IO(c) of the Mine Act, 30 U.S.C. § 820(c), for knowingly authorizing,
ordering, or carrying out the alleged violations. Thereafter, the judge consolidated the cases and
scheduled a hearing.
On January 12, 1996, the Secretary filed a motion for default asserting that REB, Miller,
and Berry had failed to respond to a prehearing order and that Miller and Berry had failed to
answer the penalty petitions. On January 25, 1996, the Secretary filed a motion for
postponement of the hearing. Judge Weisberger granted the motion for default on February 9,
1996.
On March 7, 1996, the Commission received a petition for discretionary review from
REB, Miller, and Berry, requesting relief from default. 1 They explain that they had previously
not been represented by counsel and were unfamiliar with Commission rules and procedures, and
that the Secretary's motion for default and subsequent motion for postponement had "le[f]t the
matter in a very confusing status to the laymen involved." REB Pet. at 3.
The judge's jurisdiction in this matter terminated when his decision was issued on
February 9, 1996. 29 C.F.R. § 2700.69(b) (1995). 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). The petition was timely filed and we grant it.
The Commission's procedural rules provide that a judge shall issue an order to show
cause prior to entry of any order of default or dismissal unless a party fails to attend a scheduled
hearing, in which case an order to show cause is not required. 29 C.F.R. § 2700.66(a) & (b).
Here, the judge did not issue a show cause order affording the operator and individuals the
opportunity to explain their failure to respond to the prehearing order or to answer the penalty
petitions. It appears from the record that REB, Miller, and Berry, who were proceeding without
counsel, were unfamiliar with Commission procedure, confused by the Secretary's filing of a
motion for postponement after he had filed a motion for default, and did not appreciate the
consequences of failing to respond to the motion for default. In addition, the pn~hearing order to
which Miller and Berry failed to respond was issued before they were named as parties and made
no direct reference to them.

1

On March 14, 1996, the Commission received an amended petition for discretionary
review. The amended petition was filed out of time. See 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a).

312

For the foregoing reasons, we vacate the default order and remand this matter to the judge
for further appropriate proceedings. See Patsy v. Big "B " Mining Co., 16 FMSHRC 1937, 1938
(September 1994).

Marc Lincoln Marks, Commissioner

313

Distribution

James E. Crouch, Esq.
Cypert, Crouch, Clark & Harwell
P.O. Box 1400
Springdale, AR 72765
Robin S. Homing, Esq.
Office of the Solicitor
U.S. Department of Labor
525 Griffin St., Suite 501
Dallas, TX 75202
W. Christian Schumann, Esq.
Office 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
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

31 4

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

FEB 9 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 95-29-M
A.C . No. 03-01640-05511
Docket No. CENT 95-30-M
A.C. No. 03-01640-05512

REB ENTERPRISES, INCORPORATED,
Respondent

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-239-M
A.C. No. 03 -01640-05517 A
REB Enterprises, Inc.

HAROLD MILLER,
Employed by REB ENTERPRISES,
INC. I
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-240-M
A.C. No. 03-01640 -05518 A
.REB Enterprises Inc.

RICHARD E. BERRY,
Employed by REB ENTERPRISES,
INC.,
Respondent
ORPER OF DEFAULT

Before: Judge Weisberger
On January 12, 1996, Petitioner filed a Motion for Default
asserting that Respondents have not filed any response to the
prehearing order issued on January 23, 1995. Petitioner further

315

asserts that Respondents Miller and Berry have not filed an
answer to the Petitions for Assessment of Penalty filed in
Docket Nos. CENT 95-239-M, and 95-240-M. A Certificate of
Service appended to the Motion contains a certification by
Petitioner's Counsel that on January 12, 1996, she mailed a copy
of "the foregoing pleading ... upon all parties, representatives
. . . . "To date, none of the Respondents filed a response to
Petitioner's motion. Accordingly, and based on the assertions
set forth in the motion, it is granted.
It is ORDERED that the citations issued in these cases, and
the associated penalties sought are affirmed. It is further
ORDERED that within 30 days, Respondents shall pay a civil
penalty as follows: REB Enterprise-$7,550; Richard E. Berry$1,600; and Harold Miller- $1,200.

Avram Weisberger
Administrative Law Judge
Distribution:
Robin S. Horning, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Harold Miller, 452 Perry Road, Springdale, AR 72764
(Certified Mail)
Richard E. Berry, Owner, REB Enterprises, Inc., Limestone Rock
Products, P.O. Box 1639, 740 Highway 264 East, Springdale,
AR 72765-1639 (Certified Mail)
ml

316

FEDERAL JUD SAFBTY .um JIBAL'l'B RBVIBW COIOUSSXOH
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

M .~R 4
CONTEST PROCEEDINGS

ASARCO, INCORPORATED,
Contestant

Docket No. CENT 95-8-RM
Citation 4444361; 9/20/ 94

v.

Docket No. CENT 95-9-RM
Citation 4328815; 9/21/94

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

Sweetwater Mine
Mine I.D. 23 -004 58
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
DAVID HOPKINS,
Complainant

Docket No. CENT 95-122-DM
Sweetwater Mine
Mine I.D. 23-00458

v.
ASARCO, INCORPORATED,
Respondent
DECISION

Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor , Denver, Colorado, for
the Secretary of Labor and David Hopkins;
Henry Chajet, Esq., and M. Shan e Edgington, Esq.,
Patton and Boggs, Washington, D.C. and Denver,
Colorado, for Asarco, Inc.

Before:

Judge Manning

These cases are before me on (1) n otices of contest filed by
Asarco, Inc. ("Asarco") against the Secretary of Labor and his
Mine Safety and Health Administration ("MSHA") under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seq. (1988) ("Mine Act"); and (2) a complaint of
discrimination brought by the Secretary of Labor on behalf of
David Hopkins against Asarco under section 105(c) of the Mine
Act. For the reasons set forth below, I find that Mr. Hopkins
was discriminated against in violation of 105(c) of the Mine Act,
and I affirm the two citations.
317

David G. Hopkins filed a discrimination complaint with MSHA
pursuant to section 105(c) (2) of the Mine Act, 30 u.s.c.
§ 815(c) (2).
MSHA investigated the complaint, concluded that
Asarco had violated the provisions of section 105(c) (1), and
brought this discrimination action. During the course of its
investigation, MSHA issued two citations. Asarco challenged
these citations in the two contest proceedings.
A hearing was held in these cases in Rolla, Missouri. The
parties presented testimony and documentary evidence and filed
post-hearing briefs.

I.

FINDINGS OF FACT

Asarco operates the Sweetwater Mine, an underground lead and
zinc mine in Reynolds County, Missouri. The mine produces about
1.3 million tons per year and employs about 90 hourly workers and
9 salaried employees underground.
(Tr . 774). The mine uses a
standard room and pillar mining method. The roof (back) is generally 16-18 feet high, but in some areas the roof can be up to
60 feet high.
(Tr. 775). In order to reduce the risk that
miners and equipment will be struck by falling rock, the walls
and roof of the mine are periodically scaled with a scali ng bar
to remove loose and weak rock. In areas where the roof is high,
miners must get into the basket of equipment that is capable of
raising them to a sufficient h eight to scale down any hazardous
rock. The incident that gave rise to this discrimination case
centers around a piece of equipment known as the 1311 High Scaler
(the "high scaler"), which is described below .
Mr. Hopkins was employed by Asarco at the Sweetwater Mine
starting in February 1993. He had previously worked two years
underground for another mining company. He started at Sweetwater
as a laborer in the West end of the mine . He was subsequently
transferred to the South end as a powderman.
Finally, he was
transferred back to the West end of the mine as a powderman.
His supervisor was Douglas Swearengin, Shift Foreman.
The powdermen on a crew are responsible for all explosives
work on that shift . Because that work does not take the full
shift, powdermen are also responsible for scaling do~n loose
rock, as assigned by their supervisor . Scaling is a major part
of a powderman's job. Mr. Hopkins was frequently assigned to
scale areas of the mine by Mr. Swearengin.
In general, there
were two powdermen on Mr. Hopkins' shift and they worked as a
team on all assignments including scaling.
In most areas of the mine the roof is between 16 and 18 feet
above the mine floor.
In those areas, scaling is performed from
the floor or from mobile equipment such as a Getman low scaler.
In some areas, however, the roof is 60 feet above the mine floor.
In those areas scaling must be performed from the basket of a

318

high scaler. The high scaler involved in this case is a large
vehicle equipped with a two-part boom that operates like scissors
to raise and lower the basket. The boom also swivels on a turntable so that the basket can swing from side to side. The high
scaler functions much like a cherry picker used by power companies, but is larger. Once the high scaler is moved into position
and the outrigger jacks are set, the two miners who are going to
scale get into the basket. The basket contains controls to raise
and lower the boom and to operate the turntable. One miner oper ates the controls and the other miner bars down loose rock with a
metal bar.
The first time Mr. Hopkins was asked to high scale was with
Thomas "Rick'' Hugg ins soon after he began working at the mine.
They used a smaller high scaler, No. 1307, with controls that are
of a different type from the No. 1311.
(Tr. 740). The boom had
to be fully extended to reach the back and when they came down
the boom started jerking. The basket dropped about 10 feet and
bounced.
(Tr. 95, 741) . Mr. Huggins looked at Mr. Hopkins and
laughed.
Id.
Mr. Hopkins became concerned about his safety and
wondered if Mr. Huggins bounced the basket on purpose to scare
him.
{Tr. 96). Mr. Huggins testified that he has a nervous
laugh and that the basket jerked because the boom of the small
high scaler bounces when you bring it down from such a high
level.
{Tr . 74 1).
Mr. Hopkins did not high scale again until he returned to
the West end as a powderman. He scaled while Jerry Williams
operated the controls of the 1311 high scaler. Mr. Hopkins testified that the high scaler rocked slightly, but that it was
otherwise a "f ine experience. "
(Tr. 96). Starting sometime in
July 1994, Mr. Hopkins began telling other miners during lunch
that he would not high scale. He told other miners that he was
afraid of heights and that it terrifies him to get into a machine
that rocks.
{Tr. 98). Mr. Hopkins testified that he was scared
of the high scaler, in part, because of the stories he had heard
about it . He stated that miners on his crew told him that the
high scaler fell over once when the mine was owned by a different
mine operator and that sometimes guys talked about " getting somebody in there and giving them a ride .... " {Tr . 99-100). He had
also heard that the basket once became stuck against a rib and
miners had to climb down on a rope.
(Tr. 101).
In July 1994, Mr. Huggins, who sometimes filled in for
Mr. Sweareng in, discuised the high scaler with Mr. Hopkins.
Mr. Huggins testified that he ordered Mr. Hopkins to high scale
and that he refused.
{Tr. 750-52). Mr. Huggins said that he
sent a note to Michael Mutchler, underground manager at Sweetwater, stating that Mr. Hopkins refused to highscale.
Mr. Mutchler testified that he never received such a note, but
that he remembers the incident.
{Tr. 794). Mr. Hopkins testified that he discussed the high scaler with Mr. Huggins, but that

~19

he did not understand that he was being ordered to high scale.
(Tr . 102-04) .
On the morning of August 4, 1994, Mr. Hopkins . was called into Mr. Mutchler's office to discuss the high scaler. Mr . Mutchler testified that he called the meeting because Mr. Swearengin
advised him that Mr. Hopkins had been bragging to the crew that
he would not operate the high scaler.
(Tr. 794 - 95). Owen
Erickson, Safety Manager; Kenneth McCabe, General Mine Foreman;
Larry Hampton, miners' representative; and Mr. Swearengin were
also present at the meeting. Mr. Mutchler asked Mr. Hopkins why
he was telling crew members that he would not operate the high
scaler. Mr. Hopkins replied that he felt that the high scaler
was old and unsafe to operate.
(Tr. 108, 795-96). Mr. Mu tchler
asked Mr. Hopkins to list the specific safety problems he had
with the high scaler and Mr. Hopkins could not do so.
(Tr. 796).
Mr. Hopki n s said that the basket rocks and sways when you operate
it and that he had heard stories about past accidents.
(Tr.
181). Mr. Mutchler explained that the high scaler recently had
major preventive maintenance work performed on it and that other
miners told him that it was in good condition .
(Tr. 796-97).
Mr. Mutchler told Mr. Hopkins that high scaling was part of his
job and that unless Mr. Hopkins had a specific safety complaint
that could be addressed, he would be expected to high scale.
(Tr . 799) .
Mr. Hopkins also told Mr. Mutchler that h e was afraid of
heights.
(Tr. 232, 797) . Mr. Mutchler said that he wou l d transfer him to the South end where high scaling is not a part of a
powderman's day- to-day job.
(Tr. 110, 798). Mr. Hopkins d i d not
believe that he had to respond to the offer to transfer at that
time so he did not immediately accept the offer.
(Tr . 110- 11).
During the meeting, mine management said that they would h ave
MSHA inspect the high scaler to get a " third-party opinion" about
the safety of the machine.
(Tr. 798). After the meeting,
Mr . Erickson called the local MSHA office and was advised that
MSHA would not inspect the mine without a specific complai n t
being filed by ·a miner.
After he went underground on August 4, Mr. McCabe told
Mr. Hopkins that he could not transfer to the South end.
(Tr.
111, 855-56). Near the end of the shift Mr. Swearengin and
Mr. McCabe approached Mr. Hopkins, and McCabe told Hopkins that
he was nothing but a pain in the ass and that he had another
meeting in Mr. Mutchler' s office at the end ·of the shift. (Tr.
112). Mr. Hopkins believed that the meeting was held so that
management could "flex ... their muscles. "
(Tr. 112-13).
Mr. Mutchler told Mr. Hopkins that high scaling was part of his
job and that unless he could point to a specific safety problem
on the high scaler, he would be expected to high scale.
(Tr .
801). At 5:00 p.m . , the end of Mr. Hopkins shift, Hopkins told
Mr. Mutchler that unless he was paid overtime, he would leave the

320

meeting.
(Tr. 113, 185-88, 802). The meeting ended abruptly.
Mr. Mutchler believed that Mr. Hopkins was belligerent and
uncooperative at the two meetings.
{Tr. 799).
on August 31, MSHA Inspector Robert Seelke inspected the
mine.
During the inspection, Erickson and Hampton asked him to
closely examine the high scaler. Mr. Hopkins was asked to accompany Inspector Seelke so that he could discuss his safety
concerns with the inspector.
{Tr. 28-29). Mr. Hopkins refused
the off er because he did not want to stir up any more trouble and
he thought that the company would be " courteous enough" not to
make him high scale.
{Tr. 29, 115). Inspector Seelke inspected
the h i gh scaler and did not issue any citations.
On September 8, Mr. Hopkins and David A. Hooper were assigned to high scale by their supervisor, Doug Swearengin.
Mr. Hopkins performed a preshift examination on the high scaler.
He found what he believed to be several safety defects: a hole
in the boom, a hydraulic leak in a metal tube inside the upper
part of the boom, smashed hoses at the knuckle of the boom where
the upper and lower booms pivot, a dent in the boom, play in the
turntable for the boom, and a defective emergency relief valve.
(Tr. 119-23, 347). Hopkins and Hooper told the mobile maintenance crew about the safety problems. Mechanic Rick Stevens told
them that he was working on a drill and that he would come and
look at the high scaler as soon as he was finished.
{Tr. 124,
78-79, 348).
Before mobile maintenance arrived to look at the high
scaler, Mr. Swearengin returned and asked Hopkins and Hooper why
they were not high scaling. They replied that they were waiting
for maintenance to check out problems they had found.
Hopkins
briefly described the problems he had found on his preshift.
(Tr. 130, 368). Mr. Swearengin told Hooper and Hopkins to get on
his tractor. He then drove them to a powder magazine and told
them to wait there until he returned.
(Tr. 130, 368-~9) .
About a hour later, Mr. Swearengin returned to the powder
magazine and told the miners to get on hi s tractor. He took them
back to the high scaler and told them that the high sca ler had
been checked out and to start high scaling.
{Tr. 131, 352) . Mr.
Hopkins replied that he would be the judge of that because he was
the one going up and he did not know what h ad been done to repair
the high scaler. Id. At that point, Hopkins and Swearengin began inspecting the machine. The h igh scaler was started and
Hopkins looked to see if the hydraulic leak had been repaired .
Hopkins testified that he saw the same v-shaped spray of hydraulic fluid coming from inside the boom as he saw when he preshifted the high scaler.
{Tr. 132). Hopkins testified that he
believes that Mr. Swearengin saw the hydraulic leak because h e
told Hopkins to go ahead and ride it and assured him that it
would not fall because it ha s check valves .
Id.
Hooper and

321

Mutchler testified that Swearengin could not see the hydraulic
leak.
(Tr. 371, 825). 1
Mr. Swearengin explained to Mr. Hopkins that hydraulic
fittings had been tightened and that it was safe to operate .
(Tr. 282-87, 743-45). Mr. Swearengin showed Hopkins how to use
the emergency relief valve and explained that the hole and dent
in the boom had always been there and did not present a hazard.
(Tr. 370). He also explained that the play in the turntable did
not create a safety hazard.
Id.
Hopkins continued to refuse to operate the high scaler principally because he believed that the hydraulic line was still
leaking inside the boom. Swearengin kept on saying that he did
not see the leak, but Hopkins did not believe him.
(Tr. 136-37,
227-28, 371, 825). Mr. Hopkins believed that the high scaler was
unsafe to operate and he refused to operate it.
(Tr. 133-34,
352-53, 815-16).
After Hopkins and Swearengin argued for a while, Swearengin
told Hopkins and Hooper to shut down the high scaler and to get
on the tractor because he was taking them to another section to
low scale. As" they were getting on the tractor, Hopkins asked
Swearengin to give his word that nobody else would run the high
scaler because it was not safe to operate. Swearengin replied
that it was none of his business and they argued further. Swearengin took them to the section where Huggins and Garry Moore were
low scaling. He told Huggins to get on the tractor and took them
to the shaft. At the shaft, Hopkins told Swearengin that if the
leak was fixed he would operate the high scaler.
(Tr. 134-35).
Hooper told Swearengin that he did not want to go to the top.
(Tr. 355, 760) . 2 Swearengin escorted Hopkins into the elevator
and took him to the surface. Id. One the way up, Hopkins and
Swearengin argued further about the leak in the hydraulic line
and Hopkins called Swearengin a liar because he believed that
Swearengin saw the leak but would not admit it.
(Tr. 136-37).
At the top Hopkins was escorted off of the property after he
called his wife to come pick him up.
(Tr. 137-38) . On September 12, Hopkins met with Mutchler and Erickson at the mine.
Hopkins was informed that he was being terminated f rorn his
employment for an improper work refusal and interference with
management.
(Tr. 835-36, 841).
While Hopkins, Hooper, Huggins, and Swearengin were at the
shaft on September 8, Hopkins told Huggins how to find the hydraulic leak in the boom.
(Tr . 745-46) . Huggins went back and
Mr. Swearengin did not testify at the hearing.
2

Hooper believed that the hydraulic leak was a routine
leak that did not present a hazard.
(Tr. 354-55, 372).

322

looked for the leak, but could not find it. Id.
He operated the
high scaler on September 8, after Hopkins refused to operate it,
without any problem.
(Tr. 746). On September 21, Randall
Blount, a mechanic, found a leak in the same location as the leak
described by Hopkins.
(Tr. 296-98, 304-05). He testified that
the hydraulic line leaked only when you moved a particular lever
on the controls to a certain position.
(Tr. 297-98). Mr. Huggins testified that he observed a leak on September 21 "right
where David [Hopkins) said there was a leak."
(Tr. 746-47). He
had to get on a ladder to see it. Id.
Hopkins filed a discrimination complaint with MSHA on September 16. In his complaint, he alleged that: (1) a hydraulic
hose or metal line inside the boom was leaking hydraulic fluid
and that other hoses were dripping fluid at the knuckle; (2) a
hole was present in the boom about 10 to 15 feet from the basket
that had been cut with a torch; (3) the emergency valve would not
let the basket down; (4) and the turntable of the boom had one
inch of play.
(Ex. R-3).
on September 19, 1994, MSHA Inspector Michael Roderman
inspected the high scaler for about three hours looking for
safety problems described in a safety complaint, including the
hydraulic leak in the boom.
(Ex. P-15). He did not issue any
citations on that day, but on September 21 issued Citation No.
4328815 alleging a violation of 30 C.F.R. § 57.1400(b). The
citation is five pages long and discusses each of the allegations
raised by Mr. Hopkins.
(Ex. P-14). In particular, the citation
states that: (1) the high scaler had two holes in the metal hydraulic line inside the upper boom near the knuckle; (2) a 2~
inch by 3 inch hole had been cut in the upper boom; and (3) a
section of the bottom side of the upper boom was bent as a result
of contact with the top frame of the outrigger jacks. Id.
In
addition, the citation alleges that the emergency rotation
("swing") motor for the turntable was missing. Id.
Inspector
Roderman determined that the alleged violation was not signif icant and substantial.
On September 20, 1994, Ms. Judy Peters, an MSHA Special
Investigator, was at the mine to talk with Mr. Erickson about
Mr. Hopkins' dismissal. While she was at the mine, she observed
two compressed gas cylinders in a hallway that were not secured
in any manner.
(Tr. 599). She issued Citation No. 4444361 alleging a violation of 30 C.F.R. § 56.16005. She determined that
the alleged violation was not significant and substantial.
II.
A.

DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
DISCRIMINATION PROCEEDING (CENT 95-122-DM).

Section 105(c) (1) of the Mine Act protects miners from
retaliation for exercising rights protected under the Mine Act.

3 23

The purpose of .the protection is to encourage miners "to play an
active part in the enforcement of the Act" recognizing that, "i f
miners are to be encouraged to be active in matters of safety and
health, they must be protected against any possible· discrimination which they might suffer as a result of their participation.''
s. Rep. No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in
Sen ate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
a nd Health Act of 19 77 , at 623 (1978).
A miner alleging discrimination under t h e Mine Act establishes a prima facie case by proving that h e engaged in protected
act ivity and t hat the adverse action complained of was motivated
in any part by that activity. Secretary on beh alf of Pasula v .
Consolidat ion Coal Co ., 2 FMSHRC 2786, 2799- 2800 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v . Marshall, 663 F.2d 1211 (3d Cir. 1981). The mine operator may rebut
the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no way motivated by
the protected activity. Secretary on Behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981).
If an
operator cannot rebut the prima facie case in this manner, it may
n e vertheless affirmatively defend by proving that it was also motivated by the miner's unprotected activity and would have taken
the adverse action in any event for the unprotected activity
a lone . Haro v. Magma Copper Co., 1935, 1937 (November 1982).
It is also well settled that section 105(c) protects "a
miner's right to refuse work under conditions that he reasonably
and in good faith believes to be hazardous." John A. Gilbert v.
FMSHRC , 866 F.2d 1433, 1439 (D.C. Cir 1989) (citations omitted).
The Commission has consistent ly held that " the perception of a
hazard must be viewed from the miner's perspective at the time of
the work refusal." Id.

1.

Protected Activity

I find that Hopkins had a reasonable good faith belief that
the high scaler posed a hazard to his safety. His primary con cern was the hydraulic leak that he observed i n side the upper
boom of the high scaler. He also was concerned about .the hole in
the boom.
With respect to the hydraulic leak, Hopkins was concerned
t h at the basket could drop or could swing against a pillar.
(Tr. 120) . Asarco questions whether this leak existed since
Swearengin a nd Huggins could not find it on September 8.
I
credit the testimo ny of Hopkins. Blount testified that he found
a leak in the same location on September 21 .
(Tr. 296- 98 , 304 05). Huggins a lso testified that he saw the leak on that date.
(Tr. 746-47) . Because the hydraulic line leaked only when the

32 4

basket was moved in a certain direction, it was not easy to
detect.
With respect to the hole in the boom, Hopkins was concerned
that the area was "taking weight" because the top of the hole was
"pooched out."
(Tr. 121). Asarco contends that the hole did not
present a safety problem and points to the fact that the high
scaler had been operated safely for years with this condition.
It also states ·that other miners had observed the hole in the
boom and were not concerned that it presented a safety hazard.
Indeed, it notes that Inspector Seelke did not issue a citation
on the high scaler and Inspector Roderman testified that he would
have operated the high scaler after he inspected it on September
20.
(Tr. 483-84, 486-87). I find, however, that Hopkins' perception of a hazard was reasonable despite the fact that the hole
was not new.
Indeed, I note that Asarco's expert witness,
Kenneth Lau, testified that when he first saw the high scaler,
he was concerned about the hole because of its sharp c orners.
(Tr . 7 13 , 7 2 3 , 7 2 7 } .
Asarco relies on National Cement Co. v. FMSHRC, 27 F.3d 526,
533 (11th Cir . . 1994}, for the proposition that ''[i]f the work
refusal is not ·objectively reasonable, there is no protected
activity." In that case, however, the miner continued his work
refusal after the operator suggested an alternative means to
perform his work. The administrative law judge found that this
alternative means was not unsafe, but held that the miner had
engaged in protected activity.
I interpret the Eleventh Circuit's decision to mean that a Commission judge should continue
to view the hazard from the miner's perspective, but that an
irrational or groundless fear cannot be the basis for protected
activity because it is not "objectively" reasonable.
In the
instant case, I find that Hopkins' perception of the hazards was
"objectively'' reasonable. His perception of the hazard was not
so groundless or irrational as to fail an objective test.
I also find that Hopkins' work refusal was made in good
faith.
Immediately following his preshift examination, Hopkins
asked the mobile maintenance crew to check out the items that
were of a concern to him and Mr. Hooper. Miners often ask mobile
maintenance to examine equipment that needs repair, particularly
if the miner's immediate supervisor is not present.
(Tr. 54,
274-75, 284, 350, 399, 749). Swearengin was making his rounds at
the time of Hopkins' preshift examination. Hopkins communicated
his concerns to Swearengin when he returned to the section.
I have taken into consideration the fact that Hopkins was
afraid of heights. A miner's refusal to work at a high location
solely because of a fear of heights is not protected under the
Mine Act because he does not have a good faith belief that the
work is hazardous.
In addition, such a work refusal would not

32 5

be reasonable because it would not pass the Eleventh Circuit's
objective test in National Cement. I find, however, that
Hopkins ' refusal to work was based on the safety problems he
observed during his preshift examination. Hopkins told the crew
on a number of occasions that h e did not want to work on the high
scaler. He even bragged that he would not do so. I believe that
he made these statements because of his fear of heights and because he was afraid of the high scaler as a result of his exp erience and the stories he had heard about it. Nevertheless, he
testified that he would have high- scaled on September 8 if the
hydraulic leak was repaired.
(Tr. 135, 245).
I credit this
testimony. He told at least one other miner that he would high
scale in order to keep his job.
(Tr. 305-06) Thus, his work
refusal on September 8 was motivated by his safety concerns. 3
A miner ' s work refusal is not protected if the operator addresses his safety concerns " in a way that his fears reasonably
should have been quelled." Gilbert, 866 F.2d at 1441. Asarco
contends that it went to great lengths to address Mr . Hopkins'
safety concerns.
It points to the two meetings of August 4 at
which Hopkins was asked to describe his safety concerns with the
high scaler.
It also refers to the fact that Hopkins was invited
to accompany Inspector Seelke during his inspection of the high
scaler on August· 31. In addition , Mr. Swearengin inspected the
high scaler with Hopkins on September 8 and Mr. Huggins inspected
it after Hopkins and Hooper were transported to the powder magazine. Asarco argues that in each instance it attempted to address Hopkins' fears. Asarco argues that Hopkins acted unreasonably because he did not provide any specific safety concerns at
the August 4 meetings, he refused to inspect the high scaler with
the MSHA inspector and he continued to refuse to operate the high
scaler after his concerns were addressed by Swearengin .
Asarco was diligent in attempting to discover why Hopkins
was concerned about the high scaler. I credit Asarco's evidence
that the Sweetwater Mine encourages miners to raise safety complaints and that management attempts to address these safety
3

Asarco argues that Hopkins' work refusal was not based on
his safety concerns because he testified that he had decided that
he would not high scale before he preshifted the machine.
(A .
Br. 9; A. Reply Br. 2). Hopkins testified that before he preshifted the high scaler on September 8, he "already knew what was
wrong with it."
(Tr. 245). He went on to testify that he had
previously decided that he would not high scale if the problems
he believed existed "weren't corrected." Id. He further stated
that he wou l d have operated the high scaler if the hydraulic line
had been fixed.
Id.
I do not interpret this testimony to mean
that Hopkins had decided that he would not high scale under any
circumstances . His apprehension was rooted in his concerns about
the safety of the machine.

326

concerns.
Indeed, the mine has never had a discrimination claim
under the Mine .Act prior to this case.
(Tr. 786-87) .
In the
particular facts of this case, however , I find that Swearengin
did not address Hopkins ' safety concerns "in a way that his fears
reasonably should have been quelled" Gilbert, 866 F.2d at 1441.
Asarco relies on the Commission's decision in Secretarv ex
rel . Bush v. Union Carbide Corp., 5 FMSHRC 993 (June 1983} in
making its argument.
In that case, the Commission held that
where "the necessary communication between the miner and operator
has occurred and management has taken corrective measures at some
point repetition of the same complaint and work refusal loses the
protection of the Mine Act." 5 FMSHRC at 998 . There are two
significant differences between that case and the instant case.
First, the operator had totally corrected the condition that
prompted Mr. Bush's work refusal.
Id . Mr. Bush could not articulate any further safety problems. Second, Mr. Bush made it
quite clear that he would not per.form his assigned task under any
circumstances. As stated above, Hopkins believed that the leak
in the hydraulic line had not been corrected and he told Swearengin that he would operate the high scaler if the leak was fixed.
Although mine management tried to get Hopkins to explain his
concerns at the August 4 meetings, Hopkins saw the meetings as an
opportunity for management to "flex ... their muscles . "
(Tr.
112-13, 188). He believed that he was being "hammered" by management for raising concerns about the high scaler and that he
had been "drug [into these meetings) five against o n e. 11 (Tr.
188, 232) . 4
When Hopkins and Hooper discovered the hydraulic leak and
the other safety items during the preshift examination on September 8, they sought the aid of the maintenance crew. When
Swearengin discovered that Hopkins and Hooper had asked the
maintenance crew to look at the high scaler , Swearengin took
Hopkins and Hooper to a powder magazine and told the maintenance
crew not to look at the high scaler. Instead, Mr . Huggins, a
miner with extensive experience with the high scaler, examined
the machine . Huggins, by his own admission, had no mechanical
experience and testified that if he had a mechanical problem he
would have a mechanic look at it.
(Tr. 748 - 49)
4

I do not understand why Hopkins did not take the opportunity to express his concerns to Inspector Seelke on August 31.
He testified that he believed he would get in trouble and have to
attend more meetings if he pointed out problems to the inspector.
{Tr . 29, 115}. While Hopkins may have been required to attend
more meetings, the record does not indicate that Asarco would
have disciplined him for actively participating in the inspection.
Nevertheless, his failure to participate is not fatal to
his discrimination complaint.

327

After Hopkins and Hooper were brought back to the high
scaler, they were told that it had been "checked out" and that
they should high scale. Hopkins was genuinely apprehensive.
He
did not understand why he had been made to sit in a powder magazine for over an hour and he did not know what if anything had
been done to correct the perceived safety problems. He did not
know who, if anyone, had examined the machine. There is no d ispute that Hopkins and Swearengin did not get along. The witnesses testified that there was a personality conflict between them.
When Hopkins showed Swearengin the leak in the hydraulic line,
Hopkins believed that Swearengin saw it but was not concerned
about it.
Asarco contends that it was within swearengin's authority to
have Huggins examine the high scaler in lieu of a mechanic.
It
maintains that mobile maintenance was busy with other work, and
supervisors have full authority to respond to safety complaints
and to release equipment into production after the complaint is
checked out. Although the record establishes that Swearengin did
have such authority, that fact does not resolve the question.
The witnesses testified that a mechanic frequently examines
equipment in such circumstances.
(Tr. 39, 54-56, 70, 79-80, 27475, 284, 350 , 399, 749).
It is highly unusual for a supervisor
to take a miner away from his work station to wait for a hour in
a powder magazine after safety problems are raised. Moreover,
after Hopkins was brought back to the high scaler, he observed
the same leak in the hydraulic line and he was not told what had
been done to correct the problems he reported. Accordingly,
Hopkins' fears were not reasonably quelled. 5
At first, Swearengin offered Hopkins and Hooper alternative
work. When Hopkins asked Swearengin to give his word that other
miners would not use the high scaler, Swearengin took Hopkins and
Hooper to the mine shaft, instead . Hooper agreed to go back and
high scale, but Hopkins continued to insist that the h igh scaler
was not safe. Asarco contends that Hopkins' i n sistence that
other miners not u se the high scaler until his safety concerns
were addressed is not protected under the Mine Act.
It maintains
that Hopkins wa s taken out of the mine only after "he refused to
allow Swearengin to let another miner operate the high scaler until he cleared it."
(A. Br. at 16). In Consolidation . Coa l Co.
v. Marshall, 663 F.2d 1211, 1219 (3d Cir 198 1) , the court held
that "the Mine Act does not provide for the right to shut down
5

As discussed above, Hopkins also described other hazards:
hoses dripp ing hydraulic fluid at the knuckle, a defective
emergency relief valve, and play in the turntable.
I find that
these items were either repa i red by Asarco after Hopkins pointed
them out or ·were addressed by Asarco in such a way that his fears
reasonably should have been quelled.
In addit ion, Hopkins was
willing to operate the high scaler with the hole in the boom.

328

equipment so that other miners may not work." (emphasis in original). The court held that the complainant's termination did not
violate the Mine Act because "no one has the right to stop others
from proceeding to work if they so wish." Id.
In Consolidation Coal, the complainant, David Pasula, shut
down a continuous miner and prevented the only other qualified
miner on the shift from operating it. Thus, he shut down all
coal production on the section. In addition, Pasula refused his
right to have a safety committeeman evaluate the hazard.
Id. at
1120. It was only after he refused all other options and he shut
down the machine that he was taken out of the mine. Id. at 112021.
In the present case, Swearengin ordered Hopkins and Hooper
to shut down the high scaler. Although Hopkins asked Swearengin
to give his word that no other miner would high scale, he did not
prevent anyone else from using it.
It was Swearengin not Hopkins
who had the authority to assign work. Other qualified miners
were willing and able to high scale. Thus, Asarco's argument
that Hopkins "refused to allow Swearengin to let another miner
operate" the high scaler is not supported by the record.
Swearengin could have simply said "no" to Hopkins' request.

2.

Motivation for Hopkins' Dismissal

Hopkins was terminated, at least in part, for his protected
activity. Mr. Hooper was taken to the shaft along with Hopkins
for his refusal to work in the high scaler. When Hooper agreed
to high scale, he was not taken to the surface for disciplinary
action. Hopkins continued his refusal to work in the high scaler
because of the hydraulic leak and was terminated. Thus, his
termination was motivated at least in part by his protected
activity.
The issue is whether Asarco was also motivated by Hopkins'
unprotected activity and would have terminated him in any event
for these unprotected activities. Mr. Mutchler, the underground
manager, testified that Hopkins was not terminated for his alleged safety concerns but was terminated for refusing to do his
normal work without a valid reason and interfering with Swearengin' s operation of his crew.
(Tr. 841-42, 878).
It is true that Hopkins refused to do his normal work, scale
loose rock, but his refusal was a direct result of his belief
that the high scaler was unsafe to operate. Mutchler and Swearengin did not consider the high scaler to be unsafe and, therefore, characterize his work refusal as insubordination.
Mr. Mutchler believes that Hopkins was malingering because he did
not want to high scale. Thus, in Mr. Mutchler's mind "there was
no relationship whatsoever" between Hopkins' safety concerns and
his termination.
(Tr. 842). I have determined that Hopkins had
a reasonable, good faith belief that the high scaler was unsafe
to operate. Mr. Mutchler and Swearengin had knowledge of

329

Hopkins' safety concerns but did not take the necessary steps to
quell his concerns, as discussed above. Thus, I find that there
was a direct relationship between Hopkins' safety concerns and
his dismissal by Asarco.
Asarco asserts that it would have terminated Hopkins solely
for his unprotected activity. First, it contends that Hopkins
was terminated for refusing to allow Swearengin to put other
miners on the high scaler. As discussed above, Hopkins was n ot
in charge and did not "refuse to allow" anyone else to high
scale.
Second, Asarco contends that Hopkins repeatedly called
Swearengin a liar on September 8 and that such insubordination
was not protected. There is no question that Hopkins called
Swearengin a liar at least twice because Hopk i ns believed
Swearengin saw the leak in the hydrau lic line but would not admit
it . Bad mouthing a supervisor is not protected under the Mine
Act.
{See, for example, my decision in Sorensen v. Intermountain
Mine Services, 17 FMSHRC 145 (February 1995)).
I find, however,
that Hopkins was not fired because he ca lled Sweareng in a liar.
Employees sometimes became emotional during disputes with a supervisor and Hopkins was known to be rather hotheaded.
Hopkin s
would not have been fired for this conduct alone.
I find that
Asarco has n o t established that it would have discharged Hopkins
for his unprotected activity. 6
3.

Remedy

Although he was employed at the time of the hearing, Hopkins
testified that he might want to be reinstated because his current
job may only be temporary.
(Tr. 909). He was not sure that he
wou ld seek reinstatement if he prevailed in this proceeding.
Id.
Asarco contends that reinstatement should not be awarded because
Hopkins stole the September 8 preshift examination card for the
high scaler. Hopkins admitted that he took the preshift examination card when he left the mine on September 8.
(Tr. 212-13).
Apparently it was in his pocket when he was escorted from the
mine . He later gave it to MSHA and it was not returned to Asarco
until the discovery phase of this case . Theft of company property is grounds for dismissal at the Sweetwater Mine.
(Tr . 77980) .
In making this argument, Asarco relies on the Supreme
Court's decision in McKennon v. Nashville Banner Pub. Co., 11 5
s.ct. 879 (1995). In that case, the employer discovered during

6

Mr. Mutchler also testified that he took into consideration Hopkins' work history, including incidents involving cutting fuses too short and distributing religious literature after
being instructed not to. I find that he would not have been discharged for these unprotected activities.

330

discovery that the plaintiff in an age discrimination case had
copied confidential documents that disclosed financial information about the company.
It sought to have the case . dismissed for
the theft. The Supreme Court held that after-acquired evidence
of the employee's theft did not bar the age discrimination suit,
but held that it had a bearing on the remedies available. Specifically, the Court ruled that reinstatement would be inequitable because the employee would have been terminated in any
event for the theft.
The facts in McKennon are different from the case presented
here. There is no evidence that Hopkins' theft of the preshift
card was anything but inadvertent. He had it in his pocket when
he was escorted from the mine.
It is understandable that an employee would forget such a card when he believes that he is being
fired.
He testified that he did not think it had any value to
the company because it did not contain any production information.
(Tr. 212-13).
(That information is added at the end of
the shift.)
It did contain a list of the problems he found on
the high scaler.
(Ex. P-4).
In McKennon, however, the employee
admitted that she took the confidential information in the months
prior to her discharge to protect herself in case she was fired
on the basis of .economic necessity. Thus, the employee in
McKennon intentionally took confidential information from her
employer. There is no evidence that Hopkins intentionally stole
Asarco's property.
"Where an employer seeks to rely upon afteracquired evidence of wrongdoing, it must first establish that the
wrongdoing was of such severity that the employee in fact would
have been terminated on these grounds alone if the employer had
known at the time of discharge." McKennon, 115 s.ct. at 886-87.
A miner who inadvertently walks off with a preshift examination
card would not be terminated by Asarco. Moreover, if Hopkins had
not been terminated, it is unlikely that he would have taken the
card. Accordingly, reinstatement is not barred by McKennon.
B.

CONTEST PROCEEDINGS (CENT 95-8-RM & CENT 95-9-RM).

1.

High scaler Citation

Citation No. 4328815 alleges that the following four defects
affecting safety were present on the high scaler:
(1) a leak in
the hydraulic line inside the upper boom near the knuckle; (2) a
2~- by 3-inch hole in the upper boom; (3) a dent in the upper
boom; and (4) a missing emergency swing motor for the turntable.
(Ex. P-14).
The citation alleges a violation of 30 C.F.R.
§ 57.14100(b) which provides:
"Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely
manner to prevent the creation of a hazard to persons." Inspector Roderman determined that the violation was not significant
and substantial.

33 1

For the reasons discussed below, I find that the Secretary
has not established that the hole and the dent in the upper boom
were defects that affected safety.
I also find that the Secretary failed to establish that an emergency swing motor was missing from the high scaler. I find, however, that the hydraulic
leak in the upper boom affected safety and that this defect was
not corrected in a timely manner to prevent the creation of a
hazard.
Inspector Roderman did not observe the leak in the hydraulic
hose when he inspected the high scaler on September 19.
(Tr.
445).
He spent a considerable amount of time looking for the
hydraulic leak described in the complaint.
(Tr. 477-78, 545) He
did not see the leak on September 21 when he returned to the
mine.
(Tr. 445) .
Roderman testified that an hourly maintenance
employee approached him when he arrived on September 21 and said
that the leak he had been looking for had been found.
(Tr. 446,
543-44). The leaking hydraulic line had been repaired sometime
before the inspector arrived by bypassing it with a new hydraulic
hose.
(Tr. 298-300, 446). The miner described the V-shaped
spray but could not say how long the leak had been there.
(Tr.
446).
Huggins and Blount also saw the leak on September 21. The
leaking line controlled the rotation of the turntable for the
boom .
Inspector Roderman was concerned that the leak could cause
the basket to "swing around and overturn, ... (or) hit a pillar
or rib and maybe throw someone from the basket."
(Tr. 448).
Inspector Roderman testified that, in general, one would
expect to see a leak of the magnitude described by the mechanic
who reported it to him on September 21.
(Tr. 553-55, 560). He
stated that he looked for the leak on September 19 while the boom
was in motion, but that he was not inspecting for leaks when the
turntable was moved from side to side.
(Tr. 553, 585).
Inspector Roderman does not know when the leak occurred.
{Tr. 545,
569).
He assumed that the leak that was found on September 21
was the same leak that Hopkins saw on September 8 because it had
the same V-shaped spray and was in the same location.
(Tr . 57071) .
I credit the testimony of Roderman, Blount, and Huggins that
a hole existed in the hydraulic line on September 21, · 1994.
I
also credit the testimony of Inspector Roderman and Michael
Sheridan, an MSHA engineer, that such a hydraulic leak constitutes a defect that affects safety.
(Tr. 448, 647).
It is impossible to know how long the leak existed or if it was the same
leak that Hopkins saw on September 8. On one hand, there is
evidence that such a leak would be readily obvious because it
would cause hydraulic fluid to pour out of the upper boom at a
fairly steady rate.
(Tr. 769). There is also evidence that such
a hole can develop in a matter of minutes.
(Tr. 312-13). On the
other hand, there is evidence that the hole in the hydraulic line
only sprayed significant amounts of fluid when the turntable was

332

moved. Charles Walker, a miner at the Sweetwater Mine, testified
that he operated the high scaler between September 8 and 21.
(Tr. 70-71). He stated that the high scaler "still ran a little
hydraulic oil out of the boom, but you still couldn't see (any]
leak."
(Tr. 71).
Based on this evidence and the record as a whole, I find
that the leak was not corrected in a timely manner. I find that
it is likely, although far from certain, that the leak had existed since the time Hopkins observed it on September 8.
It was
difficult to see the V-shaped spray because it was inside the
boom and it only sprayed when the controls were operated in a
certain manner. Mr. Hopkins and Hooper reported that the boom
was leaking on September 8. Walker stated that the boom leaked
hydraulic oil at the time he operated it . Garry Moore and
Huggins checked the boom for leaks while Hopkins and Hooper were
at the powder magazine on September 8. They testified that they
found a leak in the boom but fixed it by tightening a fitting.
(Tr. 282-83, 744-46).
It is possible that this repair did not
fix the leak. Inspector Roderman did not see the leak on September 19, but stated that the turntable was not moved while he
was looking at t .he boom.
In any event, I find that the leak had
existed for some . length of time.
I recognize that older mining equipment is bound to leak
hydraulic fluid. 7 Minor leaks are to be expected and do not pose
a safety hazard. Nevertheless, the leak in the boom was more
than a routine leak; it affected safety, and was not timely
corrected.
The hole in the boom had existed for as long as anyone could
remember. The hole had apparently been cut to facilitate the replacement of hydraulic hoses. The Secretary has not established
that this hole was a defect that affected safety. Mr. Sheridan,
the Secretary's engineer, testified that the hole was not a ha zard unless cracks developed around the hole.
(Tr. 642, 683). He
recommended that the operator monitor the hole for cracks.
Neither Sheridan nor Inspector Roderman saw any cracks around the
hole and the photographs do not show any cracks.
(Tr. 4 82 , 645;
Exs. P-6E, P-6F). Kenneth Lau, Asarco's engineer, did not observe any cracks and concluded that it was reasonable f°or the
mine to operate the high scaler with the hole in the boom.
(Tr.
704 , 711) . Inspector Roderman included this allegation in the
citation because he was told to by a supervisor in MSHA's Dallas
office.
(Tr. 448-50, 561- 62).
I also find that the dent in the boom did not create a safety hazard. Mr. Sheridan testified that the dent was not a major
7

The 1311 high scaler had been in operation at this mine
since 1974.
(Tr. 437).

333

distortion and that it did not create a safety risk.
(Tr. 684).
Mr. Lau did not find any -cracks around the dent and concluded
that it was reasonable for the mine to operate the high scaler
with the dent in the boom.
(Tr. 704, 711). When Inspector
Roderman saw the dent on September 19, he concluded that it did
not create a hazard.
(Tr. 487). He included this allegation in
the citation o nly after he talked to a supervisor in MSHA's
Dallas office.
(Tr. 452).
Finally, I conclude that the Secretary did not establish
that the emergency swing motor was missing from the high scaler.
Inspector Roderman testified that he believed that the emergency
swing motor was missing from the high scaler.
(Tr. 454-56). He
based his finding, in part, on his experience operating this particular high scaler when he worked for the previous operator of
the mine.
Id. According to Roderman, this motor allows the boom
and turntable to rotate. Mr. Sheridan, in his report, stated
that a swing motor was missing.
(Ex. P-2). He testified, however , that he did not look for a swing motor.
(Tr. 674-75).
Mr. Mutchler testified that the high scaler was never equipped
with the type of emergency swing motor that Inspector Roderman
said was missing.
(Tr. 842-49). He further testified that the
high scaler was equipped with two motors that can be used to turn
the boom and turntable: a hydraulic motor, and an electric motor.
Id.
Using photographs and other exhibits, he showed where these
motors were located. Because these motors were incorporated into
the structure of the high scaler, he stated that they were somewhat hidden from view. Id.
I credit Mr. Mutchler's testimony in
this regard and find that an emergency swing motor was not missing from the high scaler.

2.

Compressed Gas cylinder Citation

On September 20, 1994, Inspector Peters issued citation No.
4444361 alleging a violation of 30 C.F.R. § 56.16005. The citation states, in part: "Two compressed gas cylinders both labeled
ful l oxygen containers were observed lying on the floor beside
the mail box in the main office."
(Ex. P-3). The citation further states that employees were observed in the area and that she
was told that the cylinders were there for less that two hours.
(Tr. 599). Section 57.16005 states that " (c]ompressed and liquid
gas cylinders shall be secured in a safe manner." Inspector
Peters d etermined that the violation was not significant and
substantial .
Asarco did not offer any evidence or argument on this citation. Accordingly, ·I credit the testimony of Inspector Pe ters
with regard to this matter and affirm the citation.

334

III.
A.

ORDER

CENT 95-122-DM

For the reasons set forth above, I conclude that the discharge of David G. Hopkins by Asarco in September 1994, violated
section 105(c) of the Mine Act. consequently, it is ORDERED
that:
1. Within 21 days of the date of this decision, the parties
shall confer in person or by telephone for the purposes of:
(a) stipulating to the position and salary to which
Mr. Hopkins should be reinstated at Asarco's Sweetwater Mine, if
he seeks reinstatement;
(b) stipulating to the amount of back pay and interest
computed from September 9, 1994, to the present, less deductions
for unemployment benefits and earnings from other employment;
(c) stipulating to any other reasonable and related
economic losses or litigation costs incurred as a result of
Mr. Hopkins' September 1994, discharge .
2.
If the parties are unable to stipulate to the appropriate relief in this matter, Complainant shall file, within 40 days
of the date of this decision, a proposed order for relief. This
proposed order shall be s upported by documentation, includ ing
check stubs from his prior and current employment, n otices of
unemployment compensation awards , and bills and receipts to support any other losses or expenses claimed.
3.
Asarco shall have 20 days to reply to Complainant's
proposed order for relief.
4.
Pursuant to 29 C.F.R. § 2700.44(b), the Secretary is
urged to file with the Commission, within 45 days, a n appropriate
petition for ass essment of civi l penalty for Asarco's violation
of section 105(c) of the Mine Act.
5. This decision does not constitute my final decision in
CENT 95-122-DM until my f,inal order for relief is entered .
Asarco's stipulation of any matter regardi ng re lief shall n ot
waive or lessen i t s right to seek review of this decision on
liability or relief.

335

B.

CENT 95-8-RM

For the reasons set ·forth above, Citation No. 4444361 is
AFFIRMED. No civil penalty can be assessed at this time because
the Secretary of Labor has not filed a petition for assessment of
penalty under 29 C.F.R. § 2700.28.
C.

CENT 95-9-RM

For the reasons set forth above, Citation No. 4328815 is
AFFIRMED as to the allegation concerning the leak in the hydraulic line in the boom of the 1311 High Scaler, and is VACATED as
to all other allegations. No civil penalty can be assessed at
this time because the Secretary of Labor has not filed a petition
for assessment of penalty under 29 C.F.R. § 2700.28.

Richard W. Manning
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, ·Washington,
DC 20037-1350 {Certified Mail)
M. Shane Edgington, Esq., PATTON BOGGS, 1660 Lincoln Street,
Suite 1975, Denver, CO 80264 {Certified Mail)
RWM

336

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

MAR 5 1996

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 95-322
A.C. No. 15-17164-03544
Docket No. KENT 95-388
A.C. No . 15-17164-03545

NARROWS BRANCH COAL INC. I
Respondent

Docket No. KENT 95-424
A.C. No. 15-17164-03546
Docket No. KENT 95-447
A.C. No. 15 - 17164-03547
Mine No . 1
DEFAULT DECXSIQN

Before: Judge Weisberger
On January 24, 1996, an order was issued which provided as
follows:
It is ORPERED that Respondent shall within 10 days of
this order either file a statement setting forth good
cause why it should not be held in default, or sign and
file the original joint motion to approve settlement .
If Respondent shall not comply with this Order, a
default decision will be issued finding Respondent in
default, and ordering Respondent to pay a civil penalty
of $33,947, the total amount sought by Petitioner in
the Petitions for Assessment of Penalty filed in these
cases.

337

Respondent has not complied with this Order . Respondent has
not filed a statement setting forth good cause why it should not
be held in default; nor has it signed and filed the original
Joint Motion to Approve Settlement.
Accordingly, it is found that Respondent is in default, and
it is ORDERED that Respondent pay a civil penalty of $33,947.

~isb~
Administrative Law Judge

Distribution:
Joseph Luckett, Esq., Office of the Solicitor, U. S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Darrell Williams, President, Narrows Branch Coal, Inc.,
P.O. Box 428, Hardly, KY 41543 (Certified Mail)
/ml

3 38

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

MAR 5 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 96-38
A.C. No. 15-17044-03573

v.

Docket No. KENT 95-785
A.C. No. 15-17044-03570

THE PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent

Sebree #1 Mine
DECISION
Appearances:

Arthur J. Parks, Conference & Litigation
Representative, U.S. Department of Labor,
Madisonville, Kentucky, for Petitioner;
John H. Miller, Esq., The Pittsburg. & Midway
Coal Mining Company, Englewood, Colorado, for
Respondent.

Before:

Judge Melick

These cases are before me upon petitions for assessment of
civil penalty under Section l05(d) of the Federal Mine Safety and
Health Act of 1977 (the Act) . During hearings the parties moved
to approve a settlement agreement and to dismiss the cases.
Deletion of the "significant and Substantial" findings from
Citation No. 4061992 and a reduction in penalty from $228 to $51
were proposed. I have considered the representations and
documentation submitted, including testimonial and documentary
evidence received at hearing, and I conclude that the proffered
settlement is acceptable under the criteria set forth in Section
llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRAN'l'ED,
and it is ORDERED that Responden pay a penalty of $51 within
30 days of this order.

Gary Mel
Administ

339

Law Judge

Distribution:
Arthur J. Parks, Conference & Litigation Representative, U.S.
Dept. of Labor, MSHA, 100 YMCA Drive, Madisonville, KY 42431
John H. Miller, Esq., The Pittsburg & Midway Coal Mining
company, P.O. Box 6518, Englewood, CO 80155-6518
/jf

340

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

MAR 6 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of RONNIE GAY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 95-597-D
BARB CO 95-08

v.

Perry County No. 1 Strip
Mine ID 15-08038

IKERD-BANDY CO., d/b/a
COCKRELL'S FORK MINING
Respondent

DECISION
Appearances:

.A nne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee for
the Complainant;
William I. Althen, Esq. and Donna c. Kelly, Esq.,
Smith, Heenan and Althen, Washington, o.c.
and Charleston, West Virginia, respectively on
behalf of Respondent.

Before:

Judge Melick

This case is before me upon the complaint by the Secretary
of Labor on behalf of Ronnie Gay under Section 105(c) (2) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq., the "Act," alleging that Ikerd-Bandy Company, Inc. (IkerdBandy) violated Section 105(c) (1) of the Act when it did not hire
Mr. Gay, an applicant for employment, in early July 1994. 1 In a

1

Section 105(c) (1) of the Act provides as follows:

No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the cola or other mine of an alleged danger or
safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
34 1

preliminary motion to dismiss Ikerd-Bandy argues that Mr. Gay
failed to meet the filing requirements under Section 105(c) (2) of
the Act in that he "unjustifiably failed to file the charge of
discrimination within (60) days of the date of the alleged
violation, and the delay results in some specific prejudice to
Respondent".
Motion to Dismiss
In relevant part, Section 105(c) (1) of the Act prohibits
discrimination against a miner or applicant for employment
because of his exercise of any statutory right afforded by the
Act. n.1, supra. If a miner or applicant for employment believes
that he has suffered discrimination in violation of the Act and
wishes to invoke his remedies under the Act, he must file his
initial discrimination complaint with the Secretary of Labor
within 60 days after the alle~ed violation in accordance with
Section 105(c) (2) of the Act.
The Commission has held that the
purpose of the 60-day time limit is to avoid stale claims, but
that a miner's late filing may be excused on the basis of
"justifiable circumstances." Hollis v. Consolidation Coal
Company, 6 FMSHRC 21 (1984); Herman v. IMCO Services, 4 FMSHRC
2135 (1982). 1,n those decisions the Commission cited the Act's
legislative history relevant to the 60-day time limit:
While this time-limit is necessary to avoid
stale claims being brought, it should not
be construed strictly where the filing of
a complaint is delayed under justifiable

Footnote 1 Continued
potential transfer under a standard published pursuant to
Section 101 or because such miner, representative of miners
or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or
has testified or is about to testify in any such
proceedings, or because of the exercise by such miner,
representative of miners or applicant for employment on
behalf of himself or others of any statutory right afforded
by this Act.
2

After investigation of the miner's complaint, the
Secretary is required to file a discrimination complaint with
this Commission on behalf of the miner or applicant for
employment if the Secretary determines that the Act was violated.
If the Secretary determines that the Act was not violated, he is
required to so inform the individual complainant and that person
may then file his own complaint with the Commission under Section
105(c) (3) of the Act.

342

circumstances. Circumstances which could
warrant the extension of the time-limit would
include a case where the miner within the 60-d.a y
period brings the complaint to the attention of
another agency or to his employer, or the miner
fails to meet the time-limit because he is mislead
as to or misunderstands his rights under the Act.
(citation omitted).
The Commiss i on noted accordingly that timeliness questions must
be resolved on a case-by-case basis, taking into a c count the
unique circumstances of each situation.
It is undisputed in this case that the alleged act of
discrimination commenced on July 2, 1994, when Ikerd-Bandy did
not hire Gay and that Gay did not file his complaint with the
Secretary until December 13, 1994. His signed complaint is dated
December 14, 1994.
Gay testified at hearing as justification for the delay that
he was unaware of his rights to file a complaint of
discrimination under the Act until a coincidental meeting with
Federal Mine Inspector Dash on December 12, 1994. Dash was
purportedly investigating an unrelated matter at the subject mine
in which rock from an explosives blast struck nearby homes. A
conversation ensued with Gay in which Gay related his experience
at the Whitaker mine operation (predecessor to Ikerd-Bandy)
concerning safety reports he prepared regarding the absence of a
guard for the cooling fan on his bulldozer. Dash purportedly
advised Gay of his right to file a complaint with the Mine Safety
and Health Administration (MSHA) and the next day Gay filed the
complaint at issue with the Hazard, Kentucky, MSHA office.
Gay's testimony on this issue is not disputed and, indeed,
provides justification for the relatively brief delay in the
filing o f his complaint. Accordingly Gay's late filing may be
excused.
The Merits
In his amended complaint filed at hearing the Secretary
alleges in relevant part as follows:
The Complainant, Ronnie Gay, was employed as a bull
dozer operator by Whitaker Coal Company (MWhitaker") until
June 30, 1995 and was a Mminer" within the meaning of
Section 3(g) of the Act [30 u.s.c. 802(g)).
Between June 15 and June 27, 1994 Ronnie Gay
communicated safety complaints to Whitaker through its
agent, Superintendent Carson Sizemore ("Sizemore").

343

On or about June 20, 1994 Sizemore, as Whitaker's
superintendent ordered Ronnie Gay, through Whitaker's
foreman Raymond Walker, to stop communicating his safety
complaints to Whitaker.
Ronnie Gay continued to communicate safety complaints
to Whitaker.
on June 30, 1994 all Whitaker miners, including Ronnie
Gay, were laid off by Whitaker.
As of July 1, 1994 mine operations were purchased by
respondent, Ikerd-Bandy co., Inc.
Ikerd-Bandy Co., Inc . used the same equipment, same
employees, and same methods of mining to extract coal from
the same coal seam mined by Whitaker. Ikerd-Bandy Co., Inc.
was a successor operator to Whitaker.
Ikerd-Bandy Co., Inc. hired Sizemore as its
superintendent as of ·July 1, 1994.
On July 2-3, 1994 all Whitaker miners who had filed
applications for work with Ikerd-Bandy were interviewed by
Sizemore and another representative of Ikerd-Bandy Co., Inc.
on July 1, 1994 Ronnie Gay filed an application for
work with Ikerd-Bandy and on or about July 2, 1994 was
interviewed by Sizemore and another agent of Ikerd-Bandy.
Ronnie Gay was an applicant for employment within the
meaning of the Act.
Ronnie Gay was disc riminated against on or about
July 2, 1994, when he was denied employment by IkerdBandy because, prior to this date, he had communicated
safety complaints to Ikerd-Bandy's agent· Sizemore while
both Ronnie Gay and Sizemore were employed by Ikerd-Bandy's
predecessor, Whitaker. The safety complaints related to
the condition of the bulldozer Ronnie Gay operated for
Ikerd-Bandy's predecessor, Whitaker.
The Secretary is seeking, inter alia, an order directing
Ikerd-Bandy to pay Mdamages in an amount equal to full back pay,
all employment benefits, all medical and hospital expenses and
any and all other damages suffered by Ronnie Gay as a result of
the discrimination from the date of the discrimination until the
date Gay was reinstated to full employment status with IkerdBandy, i.e. until June 23, 1995, and a civil penalty of $6,000. "
This Commission has long held that a miner or applicant for
employment seeking to establish a prima f acie case of

344

discrimination under section 105(c) of the Act bears the burden
of persuasion that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that
activity. Secretary on behalf of Fasula v. Consolidation Coal
co., 2 FMSHRC 2786, 2797-2800 (1980), rev'd on grounds, sub nom.
Consolidation Coal Co. V. Marshall, 663 F.2d 1211 (3rd Cir.
1981); and Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
the protected activity. If an operator cannot rebut the prima
facie case in this manner, it may nevertheless defend
affirmatively by proving that it would have taken the adverse
action in any event on the basis of the miner's unprotected
activity alone. Fasula, supra; Robinette, supra. See also
Eastern Assoc., Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.
1987); Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59
(D.C. Cir, 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir.
1983) (specifically approving the Commission's Fasula-Robinette
test). Cf. NLRB v. Transportation Management Corp., 462 U.S.
393, 397-413 (1983) (approving nearly identical test under
National Labor Relations Act).
There is no dispute in this case that Gay filed numerous
safety complaints during his four years while working for
Whitaker, including as many as 200 pre-shift driver's reports
citing equipment defects and the more recent pre-shift reports
citing the absence of a guard over the radiator fan on his
bulldozer (Joint Exhibit No. 1). It is not disputed that Gay
continued to file such reports through his last day of work for
Whitaker on June 30, 1994, when Whitaker closed down operations
at the subject mine and released all of its workforce.
Considering this undisputed evidence it is clear that Gay had in
fact thereby engaged in protected activity.
The second element of a prima facie case of discrimination
is a showing that the adverse action (in this case the decision
of Ikerd-Bandy not to hire Gay on or about July 2, 1994) was
motivated in any part by the protected activity. 3 As this
Commission noted in 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), u[d]irect evidence of
motivation is rarely encountered; more typically, the only
available evidence is indirect." The Commission considered in
that case the following circumstantial indicia of discriminatory
intent: knowledge of protected activity; hostility towards
protected activity; coincidence of time between the protected

3

Gay was subsequently hired by Ikerd-Bandy and began work
on June 23, 1995.

345

activity and the adverse action; and disparate treatment. In
examining these indicia the Commission noted that the operator's
knowledge of the miner's protected activity is Mprobably the
single most important aspect of the circumstantial case".
In this regard it is undisputed that former Whitaker Mine
Superintendent Carson Sizemore was Gay's supervisor while Gay
worked at Whitaker as a bulldozer operator until Whitaker ceased
operations on June 30, 1994. Gay testified that he began filing
pre-shift driver's reports on the missing fan guard as early as
April or May 1994, and continued through June 30, 1994.
According to Whitaker foreman Raymond Walker, it was the practice
for the pre-shift reports to be completed by the equipment
operators before each shift to notify management of mechanical
and/or safety defects. Walker would collect these reports from
the operators on his shift and turn them over to Robert Baker in
the mine office. According to Walker, Baker then made a list of
the reported problems and provided that list to Sizemore.
Gay testified that although Sizemore had never talked to him
directly about these reports, Raymond Walker, who was his
foreman, told him on June 7, 1994, that Sizemore did not want him
to continue reporting the absent bulldozer fan guard. Gay
testified that he told Walker that he would nevertheless continue
to write the reports.
In his testimony Walker confirmed that, following complaints
to Sizemore about the missing fan guard on Gay's bulldozer,
Sizemore told Walker to tell Gay not to report this problem any
more. Walker confirmed that he reported Sizemore's response to
Gay. This corroborated and credible testimony may reasonably be
considered evidence not only of knowledge by Sizemore of Gay's
protected activity but also of animus toward that activity.
Sizemore's contrary testimony is also accordingly afforded but
little weight. The Secretary alleges that Sizemore, as successor
Ikerd-Bandy's new superintendent, thereafter retaliated against
Gay when he presumably rejected Gay's July 1994, application for
employment with Ikerd-Bandy.
The record shows that on July 1, 1994, Whitaker sold
substantially all of the assets of the subject mine to IkerdBandy, an unrelated business entity. According to William Rich,
Ikerd-Bandy's president, two or three weeks prior to that date he
told the Whitaker miners at meetings at the mine that he intended
to hire from among the miners who were already working and did
not intend to bring miners in from other jobs. While there is
some disagreement over the precise words used by Rich, even one
of the Secretary's own witnesses, Daryl Baker, agrees that Rich
did not say he would hire all of Whitaker's employees. I,
therefore, find Rich's testimony to be the most credible.
Indeed, Rich projected that of Whitaker's work force of about 155

346

employees (110 of whom worked on the mine site) he planned on
retaining only 65. Rich nevertheless invited all Whitaker miners
to apply for jobs with Ikerd-Bandy and more than on~ hundred
Whitaker miners, including Gay, did apply.
As noted, Ikerd-Bandy hired Whitaker's former
superintendent, Sizemore, on July 1, 1994 to help with the
transition. Around July 2-3, 1994, Ikerd-Bandy's operations
manager, Stephen Huey, and Sizemore interviewed every Whitaker
miner who applied for work with Ikerd-Bandy, including Gay.
Within a week of Whitaker's closing, Ikerd-Bandy commenced mining
operations at the same site but with only about sixty-five
miners, not including Gay.
Indeed, while some circumstantial evidence, including
knowledge of protected activity and timing, may suggest an
illegal motivation for not hiring Gay in July 1994, I find that
such evidence is neutralized by other credible evidence, the
absence of credible evidence of disparate treatment, and, on
balance that the Secretary has failed to sustain her burden of
proving such unlawful motivation. 4 I have considered, in this
regard, the long history of Gay and co-workers, Ourscle Stephens
and Prentiss Baker, for filing safety complaints while employed
by Whitaker and working for Sizemore but without evidence of
previous retaliation. Indeed, several of these former Whitaker
employees with long histories of filing safety complaints were
offered jobs and hired by Ikerd-Bandy. I also find credible the
testimony of Ikerd-Bandy's president, William Rich, as to the
hiring procedures followed in July 1994, based upon unprotected
rationale (Tr. 229-235), and that he planned to and did retain
only 65 of the 155-man workforce maintained by his predecessor,
and the evidence that Sizemore had no input as to Ronnie Gay
(Tr . 2 0 4 , 2 1 7 ) .
It is also noteworthy that Gay himself admitted that he has
no knowledge as to how Ikerd-Bandy chose its employees and was
only speculating that he was not hired because he had filed preshift reports. Finally, there is no credible evidence of
disparate treatment of Gay based upon his protected activity and,
jndeed, there is no credible evidence that anyone less qualified
than Gay was hired by Ikerd-Bandy before Gay himself was hired.

4

I have also considered the subsequent purported statement
on January 3, 1995, of Huey that they would not hire Gay because
he filed the instant proceedings. While this statement, if made,
would clearly show animus toward Gay's protected activity of
filing the instant discrimination case and could very well
provide grounds for an independent cause of action, I do not, in
any event, find this evidence to be sufficiently connected to the
claim in this case to have any decisive bearing.

34 7

It should be noted that even assuming, arguendo, the
secretary had established a prima facie case of discrimination,
the above evidence would nevertheless establish an. affirmative
defense that Ikerd-Bandy would not have hired Gay in July 1994,
for unprotected reasons alone.
Under the circumstances this discrimination proceeding must
be dismissed.
ORDER

Discrimination Docket No. KENT 95-597-D is hereby dismissed.

~

fl
!j' Afi
hJ-~~AAA. ,_;L.J,,~ lt- ~ \
~~

LA
\\
'

J

\

Gary Melick
\
Administrative Law Judge
703-756-6261
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN 37215
(Certified Mail)
William I. Althen, Smith, Heenan & Althen, Suite 400, 1110
Vermont Ave . , N.W., Washington, D.c. 2000 5 25 329-2549
(Certified Mail)
Donna c. Kelly, Esq., Smith, Heenan & Althen, One Valley Square,
Suite 1380, P.O. Box 2549, Charleston, WV 25329-2549 (Certified
Mail)
\jf

34 8

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMIN ISTRATIVE LAW JUDGES
2 Sln'LINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR

71996

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 95-451
A.C. No. 15-16508-03594
Docket No. KENT 95-671
A.C. No. 15-16508-03600

J B D MINING COMPANY, INC.,
Respondent

Docket No . KENT 95-728
A.C. No. 15-16508-03601
Mine:

Harlan No. 1

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor , Nashville, Tennessee;
Tommy D. Frizzell, Conference and Litigation
Representative, Mine Safety and Health
Administration, Barbourville, Kentucky;
Ronnie R. Russell, Conference and Litigation
Representative, Mine Safety and Health
Administration, Barbourville, Kentucky, for
Petitioner;
Jefferson B. Davis, President, J B D Min~ng,
Pathfork, Kentucky, Pro Se, for Respondent.

Before:

Judge Amchan
Docket No. KENT 95-451

On November 17, 1994, MSHA representative Billy Parrott
conducted an inspection of Respondent's No. 1 Mine i n
Harlan County, Kentucky. When he arrived at the mine's only
working section, Parrott noticed that a center line, drawn on

3 49

the roof of a crosscut to guide the continuous mining machine,
extended inby the last row of bolts (Tr. I: 14-16) . 1
This line could not have been drawn without a miner walking
under an unsupported portion of the roof (Tr. I: 23). Going into
an area in which the roof is unsupported is very dangerous and
could result in a miner being killed or seriously injured by a
roof fall. Parrott issued an imminent danger order and Citation
No. 4246900. The citation alleges a violation of MSHA regulation
30 C.F.R. §75.202(b). This regulation generally forbids work or
travel under unsupported roof.
The citation alleges a significant and substantial (S&S)
violation due to moderate negligence on the part of the
Respondent. It also alleges that it was highly likely that an
injury resulting in permanently disabling injuries might occur
due to the violation. MSHA proposed a $2,000 penalty for the
violation.
Respondent does not deny that the violation occurred.
It argues that the proposed penalty is much too high given
the circumstances. When proposed penalties are contested,
the Commission assesses civil penalties independently of the
proposal made by MSHA. Section llO(i) of the Act requires
that the Commission assess civil penalties after giving
consideration to six factors. These are the size of the
operator, the gravity of the violation, whether the operator
was negligent, whether the operator demonstrated good faith
in promptly abating the violation, the operator's history of
previous violations and the effect of the penalty on the
operator's ability to stay in business.
Respondent is a small operator and it has not offered
evidence that payment of the proposed penalties would affect
its ability to stay in business. Respondent appears to have
been cooperative in trying to prevent recurrences of the
violation (Exh. G-2, Block 17). As to Respondent's prior
history of violations, the Secretary's computerized list of

1 will refer to the transcript for Docket No. KENT 95-451
as Tr. I, the transcript for Docket No. KENT 95-671 as Tr. II and
the transcript for Docket No. KENT 95-728 as Tr. III.
1

350

citations between November 17, 1992 through November 16, 1992
(Exh G- 1), reveals no reason to assess either a higher or lower
penalty. I t does indicate that Respondent pays few of the
uncontested penalties proposed by MSHA. However, I do not regard
this as a basis for increasing the penalty for the instant
violations. The mechanism for addressing a failure to pay civil
penalties is the institution of a collection proceeding in
U.S. District Court pursuant to § llO(j) of the Act.
The record in this case requires resolution of conflicting
evidence regarding the negligence of the operator in violating
the Act and the gravity of the violation. As to negligence,
Charles Farmer, a repairman and sometime section foreman, admits
he drew the center line in the area cited by Inspector Parrott
(Tr. I: 66) . He stated that he thought he was still under
supported roof because he did not realize that the person
installing roof bolts had not finished the row of bolts closest
to the face (Tr. I: 69, 72, also see Respondent's Answer of
May 23, 1995).
Farmer contends that there were two bolts on the right side
of the unfinished row of bolts in the crosscut and that the red
reflective marker was on the one closest to the middle of the
crosscut (Tr. I: 67, 69; Exh. R-1) . Inspector Parrott contends
that the marker, which indicates the last row of bolts, was
attached to one of the bolts in the last completed row (Tr. I:
38; Exhibit R-1). Moreover, he states that only one bolt had
been installed inby that row (Exh. G-5) 2 •
I credit the testimony of Inspector Parrott and find that
the reflective marker was in the last full row of bolts and that
there was only one bolt in front of this row . I do so because
he is likely to have focused his attention much more on the
location of the bolts and marker than did Farmer, who was also

Exhibit G-5 was drawn on acetate and used on an overhead
projector at hearing. It was also copied on paper. The paper
version of G-5 contains marks made by the witnesses which are not
on the acetate version.
2

351

concerned with his production responsibilities. Moreover,
Parrott committed his recollections to paper by making a sketch
of the area within 10 or 15 minutes of his observations (Tr. I:
39, 43).

Since I conclude that Farmer went beyond the red reflective
marker, I find his negligence to be somewhat greater than if the
marker had been on the bolts closest to the face. Nevertheless,
I accept Respondent's claim that the violation was due to
inadvertence.
The coal seam at this point is only 30 inches high. Miners
are not able to stand up, and it is thus more likely that Farmer
did not appreciate the fact that the row of bolts closest to the
face had not been completed. On the other hand, it is incumbent
upon Respondent to insure that all its employees are trained
sufficiently so they recognize when a row of bolts has not been
completely installed.
therefore conclude that this violation was due, in part,
to a moderate degree of negligence on the part of Mr. Farmer in
failing to determine whether the roof under which he traveled was
supported. Mr. Farmer's negligence is imputed to Respondent for
liability and penalty purposes. He generally was given supervisory responsibilities and there is nothing in the record which
indicates that Respondent had taken reasonable steps before
this incident to avoid such a violation, Nacco Mining Company,
3 FMSHRC 848, 850 (April 1981).
I

also find Respondent was negligent for creating a situation in which a miner might not realize that the row of bolts
closest to the face had not been completely installed. Nothing
in the record indicates that there was anything unprecedented in
the circumstances leading to the violation. The bol~s were
apparently left out of the row closest to the face due to the
presence of cap coal (coal left on the roof by the continuous
miner) . The record does not indicate that Respondent had taken
any precautions to insure that miners would not travel under a
portion of the roof where bolts had not been installed for this
reason . Thus, I conclude it was foreseeable that they might do
so.
I

352

MSHA considered the instant violation to be highly likely
to result in an accident, in part because the Harlan No. 1 Mine
has 2 to 12 inches of draw rock in many places and hps experienced a number of roof falls (Tr. I: 54-61). Mr. Farmer, on the
other hand, does not recall encountering any draw rock in the
cited area (Tr. I: 70).
Regardless of whether this area contained draw rock, I find
that the violation was "S&S" as alleged by the Secretary. The
Commission test for 11 S&S, 11 as set forth in Mathies Coal Co.,
supra, is 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.
The Commission, in United States Steel Mining Co .. Inc.,
FMSHRC 1573, 1574 (July 1984), held that S&S determinations are
not limited to conditions existing at the time of the citation,
but rather should be made in the context of continued normal
mining operations. Applying this test, I conclude the violation
was as reasonably likely to occur in an area with draw rock as
in one with no draw rock. Therefore, I conclude that a serious
accident was reasonably likely, and thus the violation was
properly characterized as "S&S." Further, given the considerations discussed herein, I conclude that a $500 civil penalty is
appropriate for this violation .
Docket No. KENT 95-671
MSHA representative Roger Dingess inspected the Harlan No. 1
mine on April 19, 1995 (Tr. II: 5-7). After inspecting the face
area he walked outby four crosscuts along the belt line and found
a fresh cigarette butt. He continued walking approximately
300 feet outby to a power center where he found a second fresh
cigarette butt (Tr. II: 6-8).

35 3

As a result of these discoveries, Dingess issued citation
No. 4478078 to Respondent alleging a violation of 30 C.F.R.
§75.1702. The cited regulation prohibits anyone f~om smoking
underground or carrying any smoking materials underground. It
also requires a mine operator to institute a program, . approved by
the Secretary, to insure that nobody carries smoking materials
underground.
The citation alleges this standard was violated in that the
operator did not comply with its smoking program (Exh. G-8,
Block 8). MSHA characterizes the violation as S&S and due to the
operator's moderate degree of negligence . A penalty of $2,500
was proposed for this violation.
The only evidence of fault on Respondent's part is Inspector
Dingess' testimony that Charles Farmer, Respondent's foreman, was
working only 100 feet inby from the location of the first cigarette butt found and therefore should have immediately detected
the smoke fro~ this cigarette (Tr. II: 13-14). However, there is
no direct evidence that Farmer knew anyone was smoking in the
mine, and insufficient evidence to infer such a fact.
The airflow along the belt line is of relatively low
velocity, but it would have carried cigarette smoke outby and
away from Farmer, rather than towards him (Tr. II: 17-18).
Moreover, it is not certain that the cigarettes were smoked at
the locations at which they were found (Tr. II: 18).
There is also no evidence that Respondent's smoking program
was defective or improperly implemented (Tr. II: 13,17,21).
Negligence on the part of J B D management cannot be inferred
simply from the fact that smoking materials were found
underground. Further, the negligence of non-supervisory
personnel in bringing smoking materials into the mine cannot be
imputed to the Respondent for purposes of assessing
civil
penalty, Southern Ohio Coal Co., 4 FMSHRC 1459 (August 1982).

a

Despite the fact that Inspector Dingess has never detected
methane at the No. 1 mine, I conclude that the instant violation
is S&S. Congress would not have specifically prohibited the
presence of such materials and provided for penalties for
individual miners unless it considered that such materials are
reasonably likely to result in serious injury.

354

Nevertheless, in spite of the high gravity of the violation,
I assess only a $200 civil penalty. Paramount in this decision
is the absence of evidence of Respondent's negligence and its
good faith abatement of the violation. Respondent took steps to
prevent a recurrence of the violation by discharging the miner
who most likely brought the smoking materials into its mine
(Tr. II: 22-24).
Docket No. KENT 95-728
On April 20, 1995, while inspecting the surface area of the
Harlan No. 1 mine, Mr. Dingess observed Bobby Taylor get out of
his haul truck and load coal into it with a front end loader
{Tr . III: 5-7, 12). Inspector Dingess asked Taylor for
documentation regarding his hazard training at this mine. While
Taylor had training slips for other mines he had worked at, he
did not have any for Respondent's mine {Tr. III: 7, 10).
Taylor was. employed by Kincaid Coal Co . , a contractor
operating on Respondent's property {Tr. III: 7, Answer).
Nevertheless, since MSHA deems it the operator's responsibility
to insure that all contractor employees have the requisite sitespecif ic training, Dingess issued Citation No. 4478079 to
Respondent.
The citation alleges an S&S violation of 30 C.F.R.
§48.31(a). MSHA has proposed a $2,000 penalty. It contends that
the violation was highly likely to result in a fatal injury
(Citation, block 10) . This conclusion is predicated on the fact
that the No. 1 mine is located on the side of a mountain and that
coal is dumped into a chute that sits on a 200 foot embankment
{Tr . I I I : 11-13 ) .
The area in which Mr. Taylor was observed loading, his truck
is located next to the bottom of the chute. Inspector Dingess
believes miners in the area could be injured by objects coming
through the windshield of their vehicles {Tr. III: 13).
Respondent argues that this is simply a paper violation.
Taylor has worked at this site intermittently for four years
(Tr. III: 23).
Moreover, he had received training from two
other operators (Tr. III: 17). Finally, Respondent contends that
it abated the violation in 15 minutes merely by reviewing
information of which Taylor was already aware and completing the
MSHA form 5000-23.
355

I conclude that the Secretary has not established an S&S
violation with regard to this citation. Given Mr. Taylor's
familiarity with the worksite and recent training by other
operators it would be unlikely that his lack of training would
result in an injury. For the same reasons, I deem the gravity
of the violation to be relatively low.
However, I find Respondent negligent in not complying with
the training requirements for Mr. Taylor. In conjunction with
the other penalty criteria in section llO(i), I conclude that a
civil penalty of $200 is appropriate.
ORPER

Docket KENT 95-451: Citation No. 4246900 is affirmed and a
$500 civil penalty is assessed.
Docket KENT 95-671: Citation No. 4478078 is affirmed and a
$200 civil penalty is assessed.
Docket Kent 95-728: Citation No. 4478079 is affirmed and a
$200 civil penalty is assessed.
The total civil penalties of $900 shall be paid within
thirty (30) days of this decision.

~A~ ~~~~.
~~uf J. Amchan

Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Jefferson B. Davis, President, J B D Mining Co., Inc.,
5978 E. Hwy. 72, Pathfork, KY 40863 (Certified Mail)
/lh

35 6

PEDERAL MINE SA!'BTY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LA~ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR

7 1996

CONSOLIDATION COAL COMPANY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDING
Docket No. WEVA 93-82-R
Order No. 3109526; 11/09/92

. Blacksville No. 1 Mine
I.D. No. 46-01867

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 93-146
A.C. No. 46-01867-03938

v.

Blacksville No. 1 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Robert S. Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia on
behalf of the Secretary of Labor;
David J. Hardy, Esq., Jackson and Kelly,
Charleston, West Virginia on behalf of
Consolidation coal Company.

Before:

Judge Melick

These consolidated cases are before me pursuant to Section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seq., the -Act," to challenge Order No. 3109526
issued by the Secretary of Labor on November 9, 1992, pursuant to
Section 104(d) (1) of the Act. 1 The secretary maintains that

1

Section 104(d) (1) of the Act 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
357

Consolidation Coal Company (Consol) violated the mandatory
standard at 30 C.F.R. S 77.201-1, presumably on March 18 and 19,
1992 and is seeking a civil penalty of $12,000 for the alleged
violation. The general issue is whether Consol violated the
cited standard as charged and, if so, what is the appropriate
civil penalty to be assessed considering the criteria under
Section llO(i) of the Act.
The order at issue charges as follows:
Methane tests were not being conducted in the
6,ooo-ton capacity raw coal silo prior to or during a silo
cleaning operation. The cleaning operation was being
performed on March 18 and 19, 1992 by employees of Mole
Master Services Corporation, an independent contractor, I.D.
No. V2T. The coal stored in the silo had evidence of
heating and this condition was observed by Consolidation
Coal Company (Consol) mine management. Mole Master was
contracted to clean the coal from inside of the silo. Prior
to commencing the cleaning operation, Mole Master employees
were advised of the conditions in the silo. An open flame
kerosene-fired area heater was operated on top of the silo
by the Mole Master employees during their work activities.
The cleaning activities were conducted without examinations
for methane having been made at any · time. The Mole Master
Footnote 1 Continued
safety standard, and if he also finds that, while the
conditions created by such violation do not cause imminent
danger, such violation is of such nature as could
significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and
if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory
health or safety standards, he shall include such finding in
any citation given to the operator under this Act. 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 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.

358

employees were not qualified to perform methane examinations
nor did the independent contractor have methane gas
detection equipment.
Failure to conduct the tests or ensure that the
tests were being conducted placed the Mole Master employees
in jeopardy. The failure of Consol to perform or require
methane tests at the raw coal silo is consistent with
Consol's written and stated policy not to provide safety and
health assistance to independent contractors working on mine
property. Failure to conduct the tests or ensure that the
test were being conducted also placed Consol employees on or
near the silo in jeopardy. This violation was determined
from information gathered during the investigation of the
explosion at the Production shaft of the Blacksville No. 1
Mine that occurred on March 19, 1992, which resulted in four
fatalities .
The cited standard requires that "tests for methane in
structures, enclosures, or other facilities, in which coal is
handled or stored shall be conducted by a qualified person with a
device approved by the Secretary at least once during each
operating shift and immediately prior to any repair work in which
welding or an open flame is used, or a spark may be produced."
There is no dispute that the cited coal silo was within the
category of "structures, enclosures or other facilities, in which
coal is handled or stored" within the meaning of the cited
standard. Consol maintains, however, that the standard is
inapplicable because the shifts in question were not "operating
shift[sJ" within the meaning of the standard nor was "repair work"
being performed within the meaning of the standard. Even
assuming, arguendo, that repair work was being performed, Consol
argues that the repair work did not involve "welding or an open
flame" or a situation where "a spark may be produced." Finally,
Consol argues that, in any event, the order should be dismissed
because the Secretary has not met his burden of proving that
Consol did not, in fact, take methane readings in the subject
silo as required . Since I agree that the Secretary has indeed
failed to meet his burden of proving Consol did not take the
required methane readings, it is not necessary to reach the other
issues.
The record shows that Mole Master Services Corporation (Mole
Masters) contracted with Consol to clean the subject coal silo at
the Blacksville No.1 Mine using a process not involving welding
or an open flame nor from which a spark may be produced.
According to Mole Masters Job Superintendent Phillip Proctor,
Mole Masters moved all of their equipment to the top of the
subject silo on March 17 and began working on the cleaning
process that night.

359

Consol's preparation plant superintendent, B.C. Hall, had
provided the required hazard training for the Mole Masters
workers. Proctor advised Hall that his employees had no training
in taking methane tests and that, if there were to be a methane
problem, Consol would have to perform the testing. Proctor
testified that none of his employees had methane detectors and
that he did not see anyone conduct methane tests during the three
days he was at the site. Proctor acknowledged, however, that he
did not work with the cleaning crew on the silo roof. Mole
Masters employees Randy Sturm and Steve Oldaker worked the day
shift and three others worked the night shift. These were 12
hour shifts.
The silo has a capacity of 6,000 tons and Proctor was told
at the beginning of the cleaning process that about 2,000 tons of
coal then remained. By 10:15 a.m. on March 19 they had cleaned
and removed approximately 1,500 tons so that accordingly only
about 500 tons remained. Proctor noted that there were hot spots
of coal in the silo with some of the coal clinging to the sides.
He could see steam emanating from the coal as it dropped onto the
belt below and was cooled with water.
Consol employee James Carper testified that he was
maintaining the · belts beneath the subject silo on March 18 and
19, 1992. Although qualified to take methane tests he was not
asked and did not perform any such tests during this time.
Further, he did not see anyone taking methane readings at his
work location. Carper noted, however, that his supervisor,
Preparation Plant Superintendent, B.C. Hall, Mregularly checked
on things" while carper was working there. Indeed, according to
carper, Hall made regular checks at his worksite Mfairly often"
and showed concern for Carper's well-being.
John Morrison, the safety supervisor at the Blacksville
No. l Mine during relevant times, testified that, although he was
periodically in the vicinity of the subject silos, he personally
did not perform any inspections of the cleaning work. Morrison
did, however, take methan~ examinations beneath the silo around
the feeder pockets near the belts. His methane tests on March 18
and 19, 1992, at around 6:00 a.m. showed no methane. He did not
test for methane inside the silo or from the top of the silo.
Morrison testified that since the air flowed downward toward
the basement of the silo 90 to 95 percent of the time it would,
in any event, make no sense to test for methane at the top of the
silo. You would be testing only fresh incoming air. He also
noted that his primary concern was for methane near potential
ignition sources at the electric motors on the belt line. He
admitted, however, that hot coals in the silo could also become
an ignition source.

360

Within this framework of largely undisputed evidence it may
reasonably be inferred that none of the contractor (Mole Masters)
employees were conducting methane tests in the subject silo on
March 18 and March 19, 1992. On the other hand Safety Supervisor
John Morrison was, according.to the undisputed evidence,
performing methane tests below the silo in the basement area
where, because of the direction of air flow, any methane produced
in the silo would ordinarly be detected.
Significantly, however, there is evidence that Preparation
Plant Superintendent B.C. Hall was regularly present in the
vicinity of the subject silo on March 18 and March 19 and that he
could very well have been performing the requisite methane tests
in the silo.
It is also undisputed that doors on the sides of the silo
permitted access for methane tests as well as openings on the
roof. Indeed, Mole Masters superintendent Proctor stated that he
specifically told Hall that any required methane tests would have
to be made by Consol. Such tests can also be made in only 15
seconds. Accordingly, even if the Mole Masters employees did not
observe Hall taking methane readings on the roof, he could very
well have taken them at other locations in the silo. It is noted
that Hall died prior to the hearings in this case and that no
statements had been obtained from him regarding this matter. 2
In addition, the Secretary did not call any of the Mole
Masters employees who were actually performing the cleaning work
from the silo roof. These witnesses were possibly in the best
position to have observed whether Consol had been taking methane
readings within the silo. The recorded statement of one of these
witnesses, Randy Sturm, was introduced at trial. Sturm maintains
therein that he did not see anyone taking methane readings while
he was working. While this statement in itself is insufficient
to prove that Consol was not performing the requisite methane
tests, the statement is, in any event, entitled to but little
weight. The inability of Consol to have confronted and cross
examined this witness, either in his statement or ~t hearing and
to thereby test his recollection and the accuracy of his
statement and explore possible motives, is reason alone for
allocating such little weight.
Under the circumstances I find that, while the Secretary has
certainly raised suspicions, he has not sustained his burden of
proving the violation as charged. Indeed, the Secretary in his
post hearing brief acknowledges the difficulties of proving a
2

According to the Secretary, Hall declined to provide a
statement, citing his Fifth Amendment protections against self
incrimination. No inferences can properly be drawn from Hall's
exercise of this Constitutional privilege.

361

violation of the cited standard which requires no recordation of
the required methane readings. He states *[i)t is impossible to
conclusively prove a negative" and *(i]t would be virtually
impossible for the Secretary to prove that at no time someone may
have made a methane test". Without any regulatory requirement
for the recordation of such tests it may indeed be a difficult
violation to prove. This case has proven to be illustrative of
that difficulty.
ORDER

Order No . 3109526 is hereby vacated, Contest Proceeding
Docket No. WEVA 93-82-R is granted and Civil Penalty Proceeding
Docket No. WEVA 93-146 is dismissed.

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Gary Melick

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Law Judge

703-756-6261
Distribution:
Robert M. Vukas , Esq., Consol, Inc., 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
David J . Hardy, Esq . , Jackson and Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)
Roberts. Wilson, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)

/jf

362

PEDERAL KINE SAJ'ETY AND HEALTH REVI~" COMMISSION
OFFICE OF ADNINISTRATIVE LAW JUOGES
2 S(YLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VJRGJNIA 22041

MAR

7 1996

.. CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 93-146-A
A.C. No. 46-01867-03938

v.

Blacksville No. 1 Mine
CONSOLIDATION COAL COMPANY,
Respondent
CONSOLIDATION COAL COMPANY,
Contestant

v.

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

:

CONTEST PROCEEDING

:

Docket No. WEVA 93-81-R
Citation No. 3109525; 11/09/92
Blacksville No. 1 Mine

DECISION
Appearances:

Roberts. Wilson, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Arlington, Virginia for the
Secretary of Labor;
David J. Hardy, Esq., Jackson & Kelly, Charleston,
West Virginia for the Consolidation Coal Company.

Before:

Judge Melick

These consolidated cases are before me pursuant to Section
105(d) of the Federal Mine Sufety and Health Act of 1977,
30 u.s.c. S 801 et seq., the MAct," to challenge Citation
No. 3109525 issued by the Secretary of Labor to the Consolidation
Coal Company (Consol) on November 9, 1992, for an alleged
violation of Section 103(j) of the Act and to challenge the
proposed civil penalty of $50,000. The general issue before me
is whether Consol violated Section lOJ(j) of the Act and, if so,
what is the appropriate civil penalty to be assessed considering
the criteria under Section llO(i) of the Act.
Section 103(j) provides in relevant part that •in the event
of any accident occurring in any coal or other mine the operator
shall • • • take appropriate measures to prevent the destruction
of any evidence which would assist in investigating the cause or
causes thereof."
363

The citation at bar charges as follows:
The mine operator altered evidence which would assist in the
accident investigation of the fatal methane e'xplosion that
occurred on March 19, 1992 at Consolidation Coal Company's
(Consol) Blacksville No. 1 Mine. A Consol vehicle assigned
to Rod Baird, Environmental Engineer, was located in the
blast area near the Production shaft and was damaged by the
explosion. This vehicle contained items related to the work
area that would assist the investigation. Specifically, a
methane detector and a Consol closable metal clipboard,
which Baird reportedly used to attach routine work notes and
records, were in the subject vehicle.
On March 21, 1992, Consol employees Walter Scheller and John
Morrison entered Baird's vehicle and took Baird's assigned
methane detector and clipboard without permission along with
a cloth bag of other items. Scheller and Morrison had
obtained MSHA's permission to retrieve only training records
and Baird's personal effects from the vehicle. Upon being
observed and stopped by MSHA accident investigation team
membe r Joseph Vallina, Scheller returned the methane
dete ctor ·to the vehicle. Scheller at the time of this
violation· was Consolidation Coal Company's Corporate Counsel
for MSHA and OSHA affairs. Morrison was the Blacksville
No.l Mine Safety Supervisor.
Upon subsequent written inquiry from MSHA, the operator
through counsel represented that the cloth bag contained an
empty metal clipboard, along with items of Baird's personal
effe cts.
As c larified at hearing the Secretary is not charging any
violation herein with respect to the wmetal clipboard", wBaird's
personal effects" or the wcloth bag of other items" noted on the
face of the citation. The Secretary also made clear at hearing
that the location of the noted methane detector within the Baird
vehicle was not material to his investigation and that,
accordingly, the movement of that methane detector was not, in
itself, considered a violation in this case.
Preliminarily I find that the allegations within the four
corners of the citation do not state a violation of Section
103{j) of the Act. The citation does not allege that Consol
failed to wtake appropriate measures to prevent the destruction
of any evidence which would assist in investigating the cause or
causes" of the accident at issue. Rather it alleges only that
the operator waltered evidence which would assist in the accident
investigation". Accordingly the citation must be dismissed for
failure to charge a violation of Section lOJ{j) of the Act .

36 4

However, even assuming, arguendo, that a violation of
Section 103(j) was properly charged, the Secretary has not met
his burden of proving that Consol failed to ~take appropriate
measures to prevent the destruction" of the methane detector at
issue in this case. While not specifically germane to the
violation charged herein, I note that the Secretary has also not
shown in this case that any material evidence was, in fact, ever
altered or destroyed. Moreover, even assuming, arguendo, that a
violation of Section 103(j) was properly charged, the credible
evidence shows that the Consol officials charged in the citation
conducted their search of the subject vehicle (during which the
methane detector was found) only after receiving specific
authorization to do so from the Secretary's agent, his chief
on-site investigator, and only after being told in effect that
the vehicle was no longer within the scope of the Secretary's
investigation. Finally, the actions of Consol officials in
removing the subject methane detector from the Baird vehicle may
reasonably be construed, under all the circumstances, to have
been an effort to preserve evidence rather than destroy it.
In this regard, Ronald Wooten, Consol's Vice President for
Safety, testified that he, along with company counsel,
Walter Scheller; arrived at the Blacksville No. 1 Mine around
8:00 a.m. on March 21, 1992, as part of the continuing
investigation of an explosion at the mine on March 19, 1992. A
request had been made from the widow of Rodney Baird to recover
certain personal effects. Baird, who was killed in the
explosion, had been employed as an environmental engineer for
Consol. Wooten and Scheller were also continuing to search for
certain training records requested by MSHA.
Wooten and Scheller accordingly requested permission from
the Secretary's chief on-site investigator, James Rutherford,
to enter the company vehicle assigned to Baird to search for
these items. According to Wooten, Rutherford responded Nthat's
okay we're through with it" and indicated that he was "done with
the vehicle". Based on this authorization to search and remove
items from the Baird vehicle and upon Wooten's understanding that
they would not otherwise have been permitted to do this, Wooten
concluded that the vehicle had already been inventoried by MSHA.
Walter Scheller, then in-house lawyer for Consol, had
subsequently been promoted to superintendent at several Consol
mines. He was at the Blacksville No.l Mine site on March 19,
1992, shortly after the explosion and returned on March 21, 1992,
between 8:00 and 9:00 a.m., along with Ron Wooten. ·Informed that
certain training records and personal effects of the deceased
Rodney Baird were in the subject vehicle, Scheller and Wooten
sought permission from Rutherford to search the vehicle and
retrieve those items. According to Scheller, Rutherford
responded in reference to the requested search Nokay we're done
with it" -- words to the effect that MSHA had completed its

365

investigation of the vehicle. Scheller also recalls that
Rutherford then gave them permission to search the vehicle and
presumably retrieve Baird's personal effects and any training
records.
Scheller testified that he, along with John Morrison, then
proceeded to the Baird vehicle at around 10:00 that morning .
There were several MSHA officials and numerous union and Consol
officials in the area who they passed en route to the vehicle.
It was covered with a blue tarpaulin held by bungee cords. They
moved the tarpaulin and Scheller entered the driver's side. He
recalled observing a metal clipboard, a small bible, a pop can ,
keys, a wallet and a methane detector with a charger. Scheller
recalled telling Morrison when he found the methane detector to
M
remember where we found it". Scheller maintains that he was
still inside the vehicle when MSHA Inspector Joseph Vallina
approached and asked what they were doing . Scheller testified
that he told Vallina that Rutherford had given permission to
search the vehicle and he had discove red a methane detector.
Vallina purportedly told Scheller to return the detector to the
vehicle and not to go ins ide the vehicle again . According to
Scheller they then stopped their search, reattached the tarpaulin
and returned to the mine office accompanied, at Vallina's
direc t i on, by Vallina's colleague, MSHA Inspector Teaster.
Scheller, Morrison and Teaster then returned to the mine
off ice with the cloth bag containing items collected from the
car. At the office Rutherford confirmed to Teaster that he had
approved of the search. Scheller recalled asking Rutherford
whether there was a problem and Rutherford responded kno".
Scheller noted that the contents of the bag were emptied on a
table in the supervisor's office in plain view of Rutherford and
other personnel. He also noted that Inspector Vallina never
requested to look in the bag. Scheller further testified that he
had planned on giving the methane detector to Rutherford because
he thought it could be important to the MSHA investigation.. He
reaffirmed that he had not destroyed anything taken from the
vehicle . He was charged in the instant citation on November 9,
1992, more than seven months after this incident and, according
to Scheller, only after MSHA investigators became hostile to
Consol.
John Morrison, then safety superv isor at the Blacksville No.
1 Mine, was present when Scheller asked permission from
Rutherford to search the Baird vehicle for personal effects and
training records. Rutherford consented to this. Morrison
recalled that it was around 9:30 or 10:00 in the morning in
Mbroad daylight" when they arrived at the vehicle and MSHA
inspector Joe Vallina and two other inspe ctors were standing in
plain view on the bank above them. Scheller opened the driver's
side door and found, among other things, Baird's wallet, a bible,
a key ring and some wrestling club papers, along with a hand held

366

methanometer. Inspector Vallina then came down to the vehicle
and asked what they were doing. Scheller responded that
Rutherford had authorized the search to look for personal effects
and hazard training records and volunteered MI found this as
well" showing Vallina the methanometer. Morrison recalled that
Scheller was then standing by the open door of the vehicle and,
on Vallina•s request, returned the methanometer to where he found
it. Upon returning to the mine off ice, they dumped the contents
of the bag of items collected from the Baird vehicle on a table
in the superintendent's office. The office door was open.
MSHA Inspector Joseph Vallina corroborates this testimony in
essential respects. He and Inspector Teaster were at the time
only 25 feet from the Baird vehicle. He first noticed Scheller
as he was exiting the vehicle. Scheller told Vallina that
Rutherford had given them permission to retrieve training records
from the car. When asked if he had anything else, Scheller
reportedly responded that he had found a methane detector and
asked if he should return it to the car.
Within this framework of corroborated and cred i ble evidence
I conclude tha t, indeed, Scheller had not only been given
specific permission by the Secretary's authorized agent to search
the Baird vehicle and to remove certain articles but that he was
also told that the vehicle, in essenc e, was no longer within the
scope of the Secretary's investigation. I further find credible
Scheller's explanation that he intended to hand the methane
detector over t o the Secretary's chief on-site inve stigator,
James Rutherford, as possible material evidence. Indeed, the
most rational explanation under the circumstances is that
Scheller intended to protect and preserve evidence rather than
destroy it.
If anyone were serious about secreting or destroying such
evidence, it is highly unlikely that he would have done so in
broad daylight in plain view of Federal investigators. Moreover,
it is unlikely that he would have waited two days after the
accident to search for such evidence . If, indeed, the r e was any
intention to secrete or destroy evidence, one would also not
expect the perpetrator to first ask permission from the chief
Federal investigator to search the vehicle in which the evidenc e
was located. A more likely scenario of a perpetrator ~ith such
intent would be a surreptitious night search, without permission
and well before investigators had several days opportunity to
have ~earched the vehicle. It may also reasonably be inferred
that, at that early stage of the investigation of a ·possible
methane explosion and before the Secretary had charged any
violations, the presence of a methane detector in the vehicle of
a Consol official could be considered exculpatory. Conso l
officials would accordingly be motivated to preserve rather than
destroy .such evidence. Under the circumstances I do not find
that the Secretary has met his burden of proving that Consol

367

failed to take Mappropriate measures to prevent the destruction"
of the methane detector or that, in fact, any material evidence
was altered or destroyed.
In reaching these conclusions I have not disregarded the
testimony of MSHA investigator Rutherford. He was, indeed, the
ranking MSHA investigator on the scene. He was then also in
charge of all MSHA engineering departments including accident
investigation and had a total of 31 years experience with Federal
mining programs. Rutherford recalled that at the time of
Scheller's request he was Mpretty busy" dealing with many
investigative concerns. He recalled, however, that he did, in
fact, give Scheller permission to remove training records from
the subject vehicle which he, Rutherford, had previously
requested from Consol and to retrieve the deceased's wallet and
keys for his widow. Rutherford testified that he had no
recollection of telling Scheller and Wooten that MSHA was
Mthrough with the vehicle". He subsequently denied making such a
statement.
However, because Rutherford was admittedly Mpretty busy" at
the time, dealing with many aspects of the serious multiple
fatality investigation he was directing, I conclude that his
recollection of the conversation may not have been as clear as
could otherwise be expected. Indeed, I note in this regard that
Rutherford even omitted from his earlier more contemporaneous
notes a significant part of the conversation with Scheller and
Wooten which he subsequently recalled. Moreover, I find it
highly unlikely that such a skilled and experienced investigator
would have permitted Consol employees to search and/or remove
anything from a vehicle at the -scene of a major investigation
unless he was confident that his investigators had already
searched it.
In a ddition, the testimony of Scheller and Wooten that
Rutherford told them MSHA was Mthrough with the vehicle" is
certainl y consistent with Rutherford's granting permission to
search and remove certain articles from that vehicle. This is
furth er corroborated by Morrison, who also testified that
Rutherford consented to the search. I also note that Rutherford
testified that, on the day before this incident, he had
instructed his investigators to inventory all of the vehicles
within the affected area. This would suggest that Rutherford may
indeed have then believed that the Baird vehicle had already been
inventoried. In any event, even Rutherford acknowledges that he
consented to the search by Scheller of the Baird vehicle.

368

Under all the circumstances, I find that there has been no
violation of Section 103(j) of the Act and Citation No. 3109525
must accordingly be vacated. 1
ORDER

Citation No. 3109525 is hereby vacated, Contest Proceeding
Docket No. WEVA 93-81-R is granted and Civil Penalty Proceeding
Docket No. WEVA 93-146-A is dismissed.

Gary Mel·c
Administ
ive
703-756-6 61

1

Since it has been found in this case that an authorized
agent of the Secretary consented to Scheller's search of the
Baird vehicle, there likewise could be no violation of the
standard at 30 C.F.R. § 50.12 as suggested in the Secretary's
post hearing motion to amend. It is noted that the Secretary had
specifically declined, at hearing, to amend the citation to
charge a violation of that standard. His subsequent belated
motion filed with his post hearing brief to charge
•alternatively" a violation of 30 C.F.R. § 50.12 was denied.
That motion is accordingly now moot.

369

Distribution:
David Hardy, Esq., Jackson and Kelly , P.O. Box 553, Charleston,
WV 25322 (Certified Mail)
Roberts. Wilson, Esq., Office of the Solicitor, U.S. Dept . of
Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
/jf

370

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

March s. 1996

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 95-114
A. C. No. 46-03408-03501 EHH
Mine No. 1
Docket No. WEVA 95-122
A. C. No. 46-03141-03505 EHH

v.
OPPORTUNITY TRUCKING,
INCORPORATED,
Respondent

Chesterfield Prep Plant

ORDER OF DEFAULT
Before:

Judge Merlin

These cases are before me pursuant to Commission order dated
September 11, 1995.
On September 1, 1995, the operator filed a motion to set
aside default requesting relief from orders of default that were
issued on August 2, 1995, in these cases. The operator stated
that i t thought i t had filed answers with the Solicitor. The
operator further asserted that it was not given ample opportunity
to formally answer the charges or citations which led to the
assessments. On September 11, 1995, the Commission remanded the
case for a determination of whether relief from default was
warranted.
On September 18, 1995, an order was issued directing that
within 30 days the operator provide copies of the answers i t
alleged it sent to the Solicitor and explain why i t failed to
respond to the orders of show cause. The Solicitor was also
ordered within 30 days to review his files to determine whether
answers were received from the operator. The file contains the
return receipts showing that the September 18 order was received
by operator's counsel on September 21, 1995, and by the Solicitor
on September 20, 1995.

371

No response was received from either party. On January 16,
1996, an order to show cause was issued directing the operator to
provide the information requested in the September ~8 order and
stating that if i t failed to comply i t would be held in default .
The Solicitor again was directed to review his files to determine
whether answers were filed and advise the undersigned.
On January 23, 1996, the Solicitor filed its response to the
Janu~ry 17 order.
The Solicitor advises that he did respond to
the September 18 order, but that due to clerical error i t was
incorrectly mailed to the Office of Administrative Law Judges for
the Department of Labor.
The Solicitor has attached a copy of
his response to the September 18 order in which the Solicitor
states that he has reviewed his files and that he did not receive
answers from the operator.
To date no respon se has been filed by the operator. Therefore, since the operator has failed to comply with the show cause
order, i t is in default .
I n light of the foregoi n g, it is ORDERED that the operator
be held in DEFAULT for the penalty amounts totaling $1,056 and
that i t PAY this sum immediately

~ 0~

\ ~~

,·

Pa ul Merlin
Chief Administrative Law Judge
Distribution :

(Certified Mai l)

Javier I. Romanach, Esq., Office of the Solicitor, U. S . Department of Labor, 4015 Wilson Blvd . , Room 516, Arlington, VA 22203
Charles Stanford Wes t, Esq. , 155 E. 2nd Avenue, Williamson, WV
25661

/gl

372

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

MAR l 3 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-15
A. C . . No. 36-07270-03526

v.
Garmantown Mine
L & J ENERGY COMPANY, INC.,
Respondent

DECIS I ON ON REMAND
Before:

Judge Weisberger

On February 24, 1994, I issued a decision in this civil
penalty proceeding sustaining six of the seven violations
charged. L & J Energy Company. Inc., 16 FMSHRC 424 (February
1994 ) . L & J Energy Company, Inc. ( L & J) filed a petition for
discretionary review and/or motion for remand for correction of
the record, arguing, inter ~' that a stipulation which was
recounted in my decision did not reflect the parties' agreement.
The Secretary also moved for remand. The Commission denied the
motion, but granted the petition for review, and remanded the
matter to determine whether the stipulation in question correctly
represented the agreement of the parties, and to reconsider the
decision, if necessary. On remand, I took cognizance o f the
parties' agreement, but declined to reconsider the initial
decision. The Commission denied L & J's petition for review.
Subsequently, L & J filed its appeal in the U.S. Court of
Appeals for the District of Columbia Circuit . On June 6, 1995,
the Court issued its decision remanding the case to the
Commission "for a new determination based on the full r ecord."
L & J Energy Co . . Inc . v . Secretary of Labor, 57 F.3d 1 086
(D.C. Cir . 1995). The Court determined that my legal conclusion
"disclaiming reliance on anything but expert testimony," rendered

373

"irrelevant" my statement that I reviewed the testimony of other
witnesses. 57 F.3d, supra, at 1087, citing 16 FMSHRC at 441.
The Court further stated that if, on remand, the Commission
reaches the same conclusion, "it must simply explain·why the
eyewitness [i.e., non-expert] testimony is discredited or
disconnected in whole or in part." Id., at 1087. Finally, the
Court held that the Commission should address each of the six
statutory criteria for determining civil penalties "before
assessing a fine. 11 Id., at 1088, citing Sellersburg Stone Co.,
5 FMSHRC 287, 292 - 93 (March 1983 ) ; 30 U.S.C. § 820 (i ) . On
August 8, 1995, the Court issued its Mandate and Judgment in
this matter, returning the case to the Commission's jurisdiction.
On September 5, 1995, the Commission issued an order remanding
this matter to me, " ... for a new determination based on the
entire record."
(L & J Energy Co .. Inc., 17 FMSHRC 1515, 1517
(September 1955)).
On November 30, 1995, my decision on remand was issued.
L & J filed a petition for review which was denied by the
Commission on January 11, 1996. The Secretary filed a motion for
reconsideration of the denial, and the motion was granted in part
on January 25, 1996.
On February 13, 1996, the Commission issued a decision
remanding this matter to me. The Commission set forth its
conclusion as follows.
We conclude that the judge has not adequately explained
his reasons for discrediting or discounting the
eyewitnesses' testimony. The "experience" and
"expertise" of the experts upon whose testimony the
judge relies do not explain why he discredited the
eyewitnesses' testimony. Furc her, the judge's reliance
on the discussion of testimony in his earlier decision,
which the court of appeals found to be insufficient,
does not fulfill the remand instructions set forth by
the court and this Commission that he explain the basis
for his treatment of testimony. In addition, if the
judge is of the view of that the inspector's testimony
regarding loose material on the highwall on February 6
renders the eyewitness testimony not credible, he must
explain why. The judge must also explain the
significance, in terms of his evaluation of the

37 4

eyewitness testimony, of his reference to lay and
expert witness' recognition of loose materials in
photographs taken on February 6. 17 FMSHRC at. 2134.
Finally, the judge must reach a determination on the
record in light of his explanations.
Why the eyewitnesses' testimony is discredited
In essence, Respondent's witnesses testified that they did
not observe any loose or hazardous materials on the highwall on
February 5. However, MSHA and DER inspectors, who observed the
site the next day testified that they observed numerous loose
materials, cracks, mudslips, and material falling from the
highwall. I observed their demeanor, and found their testimony
credible. There is no evidence of any bias or interest on the
part of these witnesses which would dilute the credibility of
their eyewitness testimony. Also, their testimony regarding
conditions they observed on February 6 finds corroboration in the
recognition by . Scouazzzo, Todd, and Woods, of loose materials in
photographs taken on February 6. For these reasons I accept the
testimony of Petitioner's eyewitnesses regarding the conditions
of the highwall on February 6. Given this conclusion, the
testimony of Respondent's eyewitnesses must be considered to be
lacking some credibility. Further, the eyewitness testimony of
the conditions on February 5 can be considered trustworthy only
if it is more likely than not that the conditions observed on
February 6 occurred between when the site was observed by
Respondent's witnesses, and when it was examined by the
inspectors on February 6.
The parties elicited opinion testimony from non-expert
witnesses regarding the likelihood of a significant change in the
condition of the highwall between February 5 and February 6.
These witnesses discussed in subjective terms the weather
conditions in the relevant time period and their impact upon the
highwall. Since the lay witnesses did not base their opinions
upon empirical data, I choose to not accord these opinions any
weight. In contrast, the expert witnesses, Scovazzo and Wu,
based their opinions upon detailed empirical weather data set
forth in the testimony and records maintained by Krise. I thus
accord more weight to the testimony of the experts that the
conditions observed on February 6, could have been caused by the
freeze-thaw effect. The weather data does not indicate that a

375

significant thaw had occurred overnight on February 5, or that
there was any dramatic weather change in the 24 hour period
preceeding February 6 (See, 15 FMSHRC 424 at 443). Indeed,
Krise's data indicates that the high temperatures for
February 3, 4 and 5 were 50 degrees, 56 degrees, and 58 degrees,
respectively. The temperatures throughout these days were all
above freezing. I thus accept Wu's opinion that, in essence,
since there was not an extreme change between a freeze and a thaw
in the two days preceeding February 6, it was not probable that
the conditions depicted in photographs taken on February 6 had
developed in one day. I thus find that it is more likely than
not that the hazardous conditions observed on February 6 did not
occur overnight, and that at least some of those conditions were
in existence on February 5. I thus discredit the eyewitnesses'
testimony regarding conditions observed on February 5.
Accordingly, I reiterate my initial findings regarding the
citations and orders at issue, and penalties to be imposed
(16 FMSHRC, supra, 444-451) .

Avram Weisberger
Administrative Law Judge
Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480, Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W . ,
Washington, D.C. 20037 (Certified Mail)
/ml

376

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

March 14, 1996

CONTEST PROCEEDING

SAMUEL B. AND NANCY SANDERS,
on behalf of JOSEPH MARTIN
SANDERS,
Complainants

Docket No. WEST 95-538-RM

v.
Smokey Valley Common
Operations of Round
Mountain Gold
Corporation

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

ORDER OF DISMISSAL
Before:

Judge Merlin

On August 18, 1995, the Commission received a letter from
Samuel and Nancy Sanders (hereafter referred to as the ~complain
ants"). This letter was assigned the above-captioned docket
number.
In their letter, the complainants state that they represent
their deceased son who suffered fatal injuries at the Smokey
Valley Common Operation.
They request that the Commission review
the decision of the Mine Safety and Health Administration (MSHA)
to drop Citation Nos. 4140328, 4140327 and 4140322.
They further
seek verification of Citation No. 4140322 which they say was
included in 4140321. Finally, they allege that a water truck of
Christensen Boyles Corporation, their son's employer, should be
cited for a mechanically unsafe transmission.
There was no indication that complainants had sent a copy
of their letter to the Solicitor of the Department of Labor
who represents MSHA before the Commission. Therefore, on September 20, 1995 , an order was issued directing complainants to serve
the Solicitor with a copy of the letter. The order also directed
the Solicitor to file a response to the letter. On December 18,
1995, complainants filed a copy of a certified mail return
receipt showing that the Solicitor received a copy the letter.
On January 16, 1996 , complainant, Mrs. Sanders, filed a
letter with the Commission, enclosing several documents. These

377

documents included a letter dated December 20, 1995, from MSHA to
complainant, explaining the status of the citations and complainant's reply. Also included in the enclosures were statistics
compiled by complainant with respect to accidents in Nevada.
The Solicitor failed to respond to the September 20 order.
Accordingly, another order was issued on January 24, 1996,
again directing the Solicitor to file a reply to complainants'
August 18 letter.
On February 26 , 1996 , the Solicitor submitted his response.
The Solicitor advi s e s that the citations referred to by c omplain ants were vacated . According t o the Sol i cito r, i t was necessary
to vacate citations because some of them were duplicative.
The
Solicitor asserts that the Secretary has authority to vacate
citations.
In additio n , the Solicito r states that the Se cretary
has the responsibility to investiga te mine accidents to determine
their cause and any health o r safety violations. Lastly, the
Solicitor maintains that Congress has n o t provided that relatives
or survivors of victims have legal standing to c o ntest a citatio n
or order issued - under the Mine Act.
It is well established that the Commission as an administra tive agency has o nly the jurisdiction which Congress gives it.
Lyng v. Payne, 47 6 U. S. 92 6 , 937 (1986); Killip v. Office of
Personnel Management , 991 F.2d 1564, 1569 {Fed Cir. 1993). The
Commission has long recognized t hat i t cannot exceed the limits
of its authority as enacted by Congress. Kaiser Coal Co rp.,
10 FMSHRC 1165 , 1169, (September 1988).
It appears from the
materials in the file tha t t he complainants are concerned about
citations which MSHA has issued and then vacated.
Section 105(d)
of the Act, 30 U.S.C. § 815(d) , sets forth how and under what
circumstances Commission review may be obtained of actions taken
by MSHA. An examination of section 105(d) discloses that there
is no provision for a miner or a miner representative t o contest
a citation. The Commission has held that there is no such right
under the Act and stated that while i t might be desirable for a
miner or miner representative to have such a right, i t is up to
Congress to provide for it. UMWA v. Secretary of Labo r, 5 FMSHRC
807 (May 1983). UMWA v. Secretary of Labor, 5 FMSHRC 1519, 1520
{September 1983) . The Commission has also held that the Secretary has unreviewable discretion to vacate a citation and the
Commission has no jurisdiction to review that determination.
RBK Construction , Inc., 15 FMSHRC 2 0 99 , 2101 (October 1993).

378

The Commission does not have jurisdiction to consider
complainants' other requests for relief. Section 105(d) does
not give the Commission general oversight over MSHA' .s actions.
The Commission has no authority with respect MSHA's internal
practices and procedures. Wallace Brothers, 14 FMSHRC 586, 587
(April 1992); cf. Mid-Continent Resources, 11 FMSHRC 1015
(June 1989). Moreover, the Commission and the courts have
recognized that the Secretary has wide discretion in enforcement.
W-P Coal Company, 16 FMSHRC 1407, 1411 (July 1994); See, e.g.,
Bulk Transportation, 13 FMSHRC at 1360-61; Consolidation Coal,
11 FMSHRC at 1443; Brock v. Cathedral Bluffs Shale Oil Co.,
796 F.2d 533, 538 (D.C. Cir. 1986).
I cannot therefore, consider
MSHA's alleged failure to cite a certain piece of equipment or
its investigation of the accident . Kaiser Coal Company, supra.
In light of the foregoing, i t is ORDERED that this case be
DISMISSED.

=
Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Mr. Samuel B. and Mrs. Nancy J. Sanders, HC 60, Box CH 210, Round
Mountain, NV 89045
Douglas N. White, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
/gl

379

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

March 20, 1996
JIM WALTER RESOURCES,
INCORPORATED,
Contestant

CONTEST PROCEEDINGS
Docket No. SE 96-81-R
Safeguard No. 4476609; 12/20/95

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

Docket No. SE 96-108-R
Safeguard No. 4476467; 1/19/96
No. 4 Mine
Mine ID 01-01247

ORDER OF DISMISSAL
Before:

Judge Merlin

On January 16, 1996, the operator filed a notice of contest
with respect to Safeguard No. 4476609. This matter was assigned
Docket No. SE 96-81-R, captioned as above. On January 29, 1996,
the Solicitor filed a motion to dismiss.
On January 23, 1996, the operator filed a notice of contest
with respect to Safeguard No. 4476467.
This matter was assigned
Docket No. SE 96-108-R, captioned as above. On February 12,
1996, the Solicitor filed a motion to dismiss identical to the
one previously filed in the first case .
In his motions to dismiss, the Solicitor argues that the
Commission does not have jurisdiction to consider a contest of a
notice to provide safeguard. On March 1, 1996, the operator
orally advised my law clerk that it would not file a response.
Section 314(b) of the Federal Mine Safety and Health Act
(hereafter referred to as the "Act"), 30 U.S.C. § 864(b), authorizes the Secretary to issue safeguards to minimize hazards with
respect to the transportation of men and materials. Safeguards
are issued on a mine to mine basis and have the effect of mandatory standards. Southern Ohio Coal Company, 7 FMSHRC 509, 512
(April 1985). No penalty is assessed for the violation of a
safeguard. When the requirements of a safeguard are subsequently
violated , a citation is issued for which a penalty is assessed.
Southern Ohio Coal Company, 14 FMSHRC 1, 13 (January 1992).

380

Section 105(d), 30 u.s.c. § 815(d), grants the Conunission
jurisdiction to review citations, orders, and proposed penalty
assessments of the Secretary. There is no statutory provision
for review of safeguard notices and the Conunission has never
reviewed one. Conunission decisions regarding safeguards deal
only with situations where a subsequent citation has been issued.
Southern Ohio Coal Company, 14 EMSHRC 1; Beth Energy Mines Inc.,
14 FMSHRC 17 (January 1992); Mettiki Coal Corp., 14 EMSHRC 29
(January 1992); Rochester and Pittsburgh Coal Co., 14 EMSHRC 37
(January 1992); Green River Coal Company, 14 EMSHRC 43 (January
1992); Southern Ohio Coal Company, 10 EMSHRC 963 (August 1988) ;
Southern Ohio Coal Company, 7 FMSHRC 509; Jim Walter Resources,
Inc. , 7 EMSHRC 493 (April 1985); Conunission judges have refused
to review a safeguard where there is no subsequent citation.
Beckley Coal Mining Co . , 9 FMSHRC 1454 (August 1987); Colorado
Westmoreland , Inc., 10 EMSHRC 1236 (September 1988). The Conunission , as a creature of Congress, is bound by the limits created
by Congress and cannot expand them. Lyng v. Payne, 476 U.S. 926,
937 (1986); Killip v. Office of Personnel Management, 991 F.2d
1564, 1569 (Fed .Cir. 1 993) ; Kaiser Coal Corp., 10 FMSHRC 1165 ,
1169 (September 1988) .
In light of the forego ing, i t is ORDERED that these cases be
DISMISSE D.

Paul Merlin
Chief Administrative Law Judge

Dis t ribution:

(Certified Mail)

R. Stanley Mo rrow , Esq., Jim Walter Resources , Inc., P.O. Box
133, Brookwo od, AL 35444
William Lawson, Esq., Office of the Solicitor, U.S. Department of
Labor, 150 Chambers Bldg., Highpoint Office Center, 100 Centerview Drive, Birmingham, AL 35216
Mr. James A. Blankenship, President, Local 2245, UMWA, 3500
Culver Rd., Lot #6 , Tuscaloosa , AL 35401
/ gl

38 1

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

March 20, 1996

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
GENERAL ROAD TRUCKING
CORPORATION ,
Respondent

Docket No. YORK 95-102-M
A. C. No. 19-00408-05518
County Street Mine and Mill

ORDER OF DEFAULT
Before:

Judge Merlin

This case is now before me pursuant to Order of the
Commission dated December 26, 1995.
A review of the file shows that an order to show cause was
issued to the operator on September 14, 1995. The file contains
the return receipt showing that the operator received the order
on September 18, 1995. Since the operator failed to respond to
the show cause order, an order holding i t in default was issued
on November 20, 1995 . The file contains the return receipt
showing that the operator received the default on November 22,
1995.
The Commission was unaware that the operator had received
the default order, because the return receipt had not been
associated with the file at the time the case was before the
Commission .
The operator in its letter to the Commission dated November 29, 1995, admits that i t received the show cause · order, but
makes no mention of the default which i t had received a week
earlier. The operator also alleges i t is not liable, because i t
does not run the facility in question.
On January 25, 1996, an order to submit information and
show cause was issued directing the operator to explain (1) the
two month delay in its response to the September 14 show cause
order, (2) why relief from default should be granted and (3) why
its November 29 letter made no mention of the default order i t
had received.
It was noted that in the past two years the
operator had been a party in eight other cases before the Commission and that i t had been defaulted in four.
Docket Nos. YORK
95-94, YORK 95-95, YORK 95-96 and YORK 95-99.

382

The file contains the return receipt showing that the
operator received the January 25 order on January 31, 1996. To
date no response has been received. Since the operator has
failed to comply with the January 25 show cause order, i t is in
default.
In light of the foregoing, i t is ORDERED that the operator
be held in DEFAULT for the penalty amount of $1,200 and that i t
PAY this sum immediately.

~n

---'\\-~
Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Ralph R. Minichiello, Esq., Office of the Solicitor, U.S. Department of Labor, One Congress Street, 11th Floor, P.O. Box 8396,
Boston, MA 02114
W. Christian Schumann, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA
22203
E. Irene Anthony, Secretary, General Road Trucking Corporation,
P. 0. Box 14277, E . Providence, RI 02914
/gl

383

.....

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
12 4 4 SPEER BOULEVARD #280
DENVER, CO 8020 4-3582
303-844-3993/FAX 303- 844-5268

MAR 2 5 1996
CIVIL PENALTY PROCEEDING

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

Docket No . WEST 93 - 462 -M
A.C . No. 04-04679 - 05510

v.

Montague Plant

CONTRACTORS SAND & GRAVEL
SUPPLY, INCORPORATED,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No . WEST 94-409 - M
A.C. No. 04 - 04679 - 05514 A

v.

Montague Plant

ERIC SCHOONMAKER, owner & agent
CONTRACTORS SAND & GRAVEL
SUPPLY I INC. I
Respondent
SUMMARY DECISION

Bef ore:

Judge cetti
I

Background
Contractor ' s Sand and Gravel , Incorporated, operates two
small portable sand and gravel surf ace mining operations located
near Yreka, Californ ia . The Scott River Plant has two employees
and produces about 1 0 , 000 to 15,000 tons annua l ly.
The Montague
Plant has two employees and produces about 10 , 000 to 15,000 tons
annually.
Eric Schoonmaker, the company's general manager, oversees
both operations . Mr. Schoonmaker's responsibilities include , for
example, managing the business, directing sales, marketing and
customer relations, organizing production, coordinating equipment
mainten ance and repair, and making sure that the operations are
safe.
He is also the company ' s primary liaison with regulatin g

384

authorities such as MSHA. He asserts the plant has been in
operation for many years and passed all MSHA's electrical inspections until the grounding citation in question was issued on
March 10, 1993, by Inspector Ann (Johnson) Frederick.
II

Mr. Schoonmaker is the llO(c) agent charged in Docket No.
WEST 94-409-M with the knowing violation of 30 C.F.R. § 56. 12 05
at the Montague Plant. That safety regulation 30 C.F.R.
§ 56.1205 reads as follows:
All metal enclosing or encasing electrical
circuits shall be grounded or provided with
equivalent protection. This requirement does
not apply to battery-operated equipment.
The single citation at issue in both of the above-captioned
dockets charges both the operator and the manager Eric Schoonmaker with the unwarrantable failure to comply with the abovequoted safety standard . The citation reads as follows:
The frame of the crusher was being used as
the grounding conductor. The ground solid
strand copper wire ran from a rod (found +18 "
below the surface n ear the van used as a
control electrical installation) under the
van through an underground pipe and connected
directly to the frame of the portable crusher
operation. Another jumper (solid copper
wire) was found from the upper head pulley
frame to the metal of the chute where the
crushed rock transferred to the stacker
conveyor belt. The wires from both motors
found on these belts was so P123 MSHA 14/3
stamped. No other visible grounds were found
at the motors. Effective equipment ground
conductors have not been installed as evidenced. The electrical grounding tests performed at the Montague plant and stated to on
Sept. 15, 192 (1992) state that the grounding·
had been found to conform to applicable code.
Frame grounding has been forbidden for over
fifteen years. This is an unwarrantable
failure by operator to comply with the
standards.
Respondents do not dispute that the paths to ground for the
stacker motor and crusher delivery motor passed through the frame
of the crusher.
Respondents do, however, dispute that such a
grounding system violates the regulatory requirement of 30 C.F.R.
§ 56.12025.

385

Respondents' counsel asserts that Petitioner has not even
established a prima f acie case that the two motors in question
were not grounded. Respondent contends that at the time the
citations were issued, the two motors in question were effectively grounded. MSHA performed no test and has no other
definitive evidence to show that the motors, at the time the
citations were issued, were not effectively grounded or were, in
any way, in violation of the plain, clear provisions of the cited
safety standard.
Both parties agree that there is no dispute as to any
material fact and that the matter is ripe for summary decision on
the single legal issue of whether Respondent's reliance on the
crusher and stacker frames to serve as the path to ground for the
electric current violates the provisions of 30 C.F.R. § 56.12025.
The parties have cross-moved for summary decision on this single
legal issue.
Both parties agree that although the grounding issue is only
one issue, among many, in the nine consolidated cases concerning
33 citations, Citation No. 3911909 is the most significant of the
citations and has generated, by far, the largest of the proposed
penalties in these cases. Although the parties here seek summary
decision on only one of many issues in the consolidated cases,
the parties agree that the resolution of the grounding issue will
allow the remaining citations in the consolidated cases to be
resolved by amicable settlement without need for a hearing.
STIPULATIONS
In March 1996, the parties entered into the record the stipulation that the record for summary decision on the grounding
issue consists of the following:
1.

Citation No. 3911909.

2. All pleadings filed with the presiding judge, including
but not limited to, motions, oppositions, and prehearing statements, to show the respective litigation positions of and representations made by the parties.
3. Respondent's Request for Admissions and MSHA's Responses
to Respondent's Request for Admissions; Respondent's Interrogatories and MSHA's Responses to Respondent's Interrogatories,
Plaintiff's (Petitioner's) Interrogatories and Respondent's
Responses to Petitioner's Interrogatories.
4.

The affidavit of Eric Schoonmaker.

5.

The declarations of Paul Price and Gordon Vincent.

386

6. The deposition transcripts of Paul Price, Ann (Johnson)
Frederick, Eric Schoonmaker and Frank Casci.
7. Article 250 of the 1993 National Electricai Code (NEC),
to show the NEC's definitions of "grounded" and "grounded, effectively."
B. Article 250 of the 1993 National Electrical Code (NEC),
to show the electrical grounding requirements of the NEC.

9. Order No. 3913901, issued subsequent to Citation No.
3913895 and under contest in Docket No. WEST 93-141, to show that
Order No. 3913901 was terminated.
10. Photographs A-1, A-2, A-3 and A-4 to show the equipment
used at the Montague Plant.
11. August 3, 1995, letter from Paul Price to Mark Ode, to
show that MSHA requested an interpretation of Article 250 of the
1993 National Electrical Code from the National Fire Protection
Association.
12. August 14, 1995, letter from Mark Ode to Paul Price, to
show the National Fire Protection Association's unofficial interpretation of Article 250 of the 1993 National Electrical Code as
it applies to the hypothetical scenario set out in Mr. Price's
August 3, 1995, letter.
The February 29 , 1996, letter transmitting the above stipulations also states "the stipulated record contains a few items
that have not been previously cited by the parties and attached
to prior motions or pleadings. These items are being included to
make the record complete for appeal purposes."
Both parties in their pleadings and arguments have stated
their respective cases very well. Upon careful review of the
record, I am persuaded that the undisputed material facts in this
case do not establish a violation of 30 C.F.R. § 56.12025.
The cited standard 30 C.F.R. § 56.12025 plainly and clearly
requires that "metal enclosing ... electrical circuits ' shall be
grounded." The regulation is specific and not broadly worded.
30 C.F.R. § 56.12025 is a "performance standard. " It does not
specify or require that the operator achieve an effective ground
in a specific manner.
I find that Respondent complied with the requirement of the
cited standard by intentionally grounding the stacker conveyor
and crusher discharge conveyor motors by using the stacker and
crusher frames as conductors in carrying ground fault current to
earth.
Part 56 which sets forth the mandatory safety standards
for surface nonmetal mines, such as we have here, clearly pro-

387

vides that "electrical grounding means to connect with the ground
to make earth part of the circuit." 30 C.F.R. § 56.2. The
company's resistivity tests conducted on September .15, 1992,
pursuant to 30 C.F.R. § 56.12028 indicated that there was an
effective path to ground from both of the motors. Thus, the
motors in question were connected with the ground to make the
earth part of the circuit. There is no contrary evidence.
The secretary should not be permitted through interpretation
to expand the regulation beyond its plain meaning. The Secretary's purported longtime interpretation of the regulation to
prohibit per se frame grounding constitutes an impermissible
expansion of the plain meaning of the standard.
It constitutes
an impermissible avoidance of the rulemaking requirements of
section 101 of the Mine Act.
since the Secretary purports to
impose additional requirements and prohibitions without proper
rulemaking, it lacks the "force and effect of law". WesternFuels Utah, Inc., 11 FMSHRC 278, 286-87 (March, 1989); see also
Asarco Inc., 14 FMSHRC 829, 835 (1992).
If the Secretary believes frame grounding should be prohibited, the Secretary should initiate appropriate rulemaking to
achieve its goal rather than attempting to do so by its interpretation of the regulation beyond its plain meaning.
(See Mathies
Coal Company, 5 FMSHRC 300, 303 (March 1983).
With respect to the application of the reasonable, prudent
person test, I find that a reasonable, prudent person familiar
with the mining industry would have recognized that the two
motors, which were connected to earth through a series of metal
frame and wire connections, were "grounded" and were, thus, in
compliance with the requirement of the cited regulation.
I base
this on the definition of grounding at 30 C.F.R. § 56.2 which
specifically states that "electrical grounding means to connect
to the ground to make the earth part of the circuit". 30 C.F.R.
§ 56.2.
In this connection, I also find it noteworthy that in the
National Electrical Code, "grounded" is d~fined as ''connected to
earth or to some conducting body that serves in place of earth.''
NEC, Article 100 (definitions) (1993) and that "grounded effectively" is defined as "Intentionally connected to earth through a
ground connection or connections of sufficiently low impedance
and having sufficient current carrying capacity to prevent the
buildup of voltages that may result in undue hazards to connected
equipment or to persons. NEC, Article 100 (definitions) (1993).
Also noteworthy in the application of the reasonable prudent
person test is the fact the Secretary's purportedly longstanding
interpretation has never been published in MSHA's Program Policy
Manual and furthermore, MSHA's purported interpretation is contrary to two unappealed, well-reasoned decisions of two Commis-

388

sion Judges who I believe to be reasonable, prudent persons
familiar with the mining industry . See Mulzer crush stone
Company, 3 FMSHRC 1238 (May 1981) in which Judge Laurenson
rejected MSHA's contention that the frame was not a source of
grounding.
See also McCormick Sand Corporation, 2 FMSHRC 21, 24
in which Judge Michels rejected MSHA's contentions and held that
30 C.F.R. S 56.12025 "fairly read, requires only a "ground" or
its equivalent. It does not mandate a particular ground such as
that mentioned in the citation ... " I have not been able to find
any Commission authority contrary to these two unappealed Administrative Law Judge decisions.
I conclude, primarily on the basis of the plain, clear language of the cited regulation, that Citation No. 3911909 should
be vacated.
I find nothing in ·the transcript and declaration of
Paul Price, the transcript of Ann (Johnson) Frederick and the
other material and arguments on which MSHA relies that persuades
me to a contrary conclusion. Such testimony and arguments would
be more appropriate in a section 101 rulemaking proceeding.

ORDER
Docket No. WEST 93-462-M

Citation No. 3911909 is VACATED and its related $7,000.00
proposed penalty is set aside. I retain jurisdiction of the two
remaining citations in the docket.
Docket No. WEST 94-409-M

Citation No. 3911909 is VACATED; its related $6,000.00
proposed penalty is set aside. Docket No. WEST 94-409-M is
DISMISSED.

Aug t F . Cetti
Administrative Law Judge
Distribution:
Steven R. Desmith, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105
C. Gregory Ruffennach, Esq., RUFFENNACH LAW OFFICES, 1675 Broadway, Suite 1800, Denver, co 80202
\sh

389

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

JAR 2_5_199-6.
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 94-369-M
A.C. No. 35-02479-05501

v.

Docket No. WEST 94-379-M
A.C. No. 35-02479-05502
Docket No. WEST 94 -492-M
A.C. No. 35-0247 9 - 05503

TIDE CREEK ROCK, INC.,
Respondent

Docket No. WEST 94-493-M
A.C. No. 35-02479-05504
Docket No. WEST 94-638-M
A.C. No. 35-02479-05505
Docket No. WEST 95-48-M
A.C. No. 35-02479-0 5506
Docket No. WEST 95-275-M
A.C. No. 35-02479-05507
Tide Creek Rock
DECISION
Appearances:

Matthew L. Vadnal, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington,
and Paul A. Belanger, Mine Safety and Health
Administrati.o n, U.S. Department of Labor,
Vacaville, California, for Petitioner;
Agnes M. Peterson, Esq., Deer Island, Oregon,
for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration ("MSHA"), against Tide
Creek Rock, Inc. ("Tide creek"), pursuant to sections 105 and 110
of the Federal Mine Safety and Health Act of 1977 , 30 u.s.c.
§§ 815 and 820 (the "Mine Act").
The petitions allege 33 violations of the Secretary's safety standards.
For the reasons set
forth below, I affirm 21 citations and 2 section 104(b) withdrawal orders, and vacate 12 citations and 1 section 104(b)
withdrawal order.
I assess penalties in the amount of $640.00.

390

A hearing was held in these cases in Portland, Oregon. The
parties presented testimony and documentary evidence, and filed
post-hearing briefs.
I.

DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Tide Creek Rock Mine, owned and operated by Tide Creek,
is a very small crushed stone operation in Columbia County,
Oregon. The mine consists of a pit and crusher. The mine
recorded about 3,000 annual hours worked and it employs three
people. It has a history of no citations between January 1990
and January 1994. on January 20 and 21, 1994, MSHA field office
supervisor John Widows inspected the mine following a telephone
complaint about the mine received at MSHA's headquarters on
January 19.
(Ex. R-1).
General Defenses
Tide Creek argues that all or most of the citations should
be vacated for five reasons, as discussed herein. First, it
maintains that the Secretary failed to show that the citations
were issued by a person who is authorized to do so under the Mine
Act. Tide Cree~ contends that Mr. Widows was not "qualified by
practical experience in mining or by experience as a practical
mining engineer or by education."
(T.C. Br. at 3, quoting 30
u.s.c. § 954). Further, Tide Creek argues that Mr. Widows does
not have five years of practical mining experience and that in
assigning him to inspect the mine, the Secretary failed to give
due consideration to his lack of "previous experience in the.
particular type of mining operation" at the Tide Creek Rock Mine.
Id. It contends that these qualification requirements are jurisdictional.
(T.C. Answer Br. at 1-2). The Secretary argues that
Mr. Widows is an authorized representative of the Secretary and
is qualified as a result of his experience, training, and
education.
Although Mr. Widows' career history is unusual, I find that
he was duly qualified to inspect Tide Creek's mine and to issue
citations. He has been employed by MSHA for 17 years, first as a
health and safety specialist and then as a field office supervisor.
(Tr. 11-12). Although he has never been an MSHA inspector, he is a duly authorized representative of the Secretary, as
that term is used in sections 103(a) and 104(a) of the Mine Act.
(30 u.s.c. §§ 813(a) and 814(a); Tr. 13, 142). He has a degree
in mining engineering from the Colorado School of Mines, but he
has never worked at a mine except during the summer while in
college.
(Tr. 13). He was also trained at MSHA's Mine Safety
and Health Academy. I find that Mr. Widows does not have five
years of practical mining experience. Section 505 provides,
however, that the Secretary shall appoint, "to the maximum extent
feasible," inspectors with five years of practical mining experience.
30 u.s.c. § 954. Thus, that provision is not jurisdic-

39 1

tional. For the same reason, the fact that he never worked at a
rock or g:avel pit does not disqualify him from inspecting Tide
Creek's mine. I find that he meets the qualifications of section
505 as a result of his education, training, and experience at
MSHA.
Second, Tide Creek argues that any citations that involve
the same safety standard and the same equipment or area of the
mine should be combined into a single citation. Tide Creek
points to MSHA's Program Policy Manual which includes such a
directive.
{PPM at Vol. I, Sec. 104, p. 15). The citations that
Tide Creek believes should be combined include seven guarding
citations and four handrail citations. The Secretary maintains
that the PPM is not binding on MSHA but merely provides guidance
to inspectors. He also contends that the crusher was a large
piece of equipment made up of many separate components and that
each of the conditions cited presented a separate hazard.
Section llO{a) of the Mine Act provides that "each occurrence of a violation of a mandatory health or safety standard may
constitute a separate offense." 30 u.s.c. § 820{a). The Secretary did not a~use his discretion in issui ng multiple citations
alleging violat'ions of the same or similar safety standards.
Each citation addresses a discrete area of the crusher. For
example, with respect to the guarding citations, no two citations
require a guard at the same location. Each citation required a
separate abatement effort by Tide Creek to terminate the citation.
See, Port Costa Materials, Inc., 16 FMSHRC 1 516, 1519-20
{July 1994) (ALJ) •
Although the Secretary's Program Policy manual is evidence
of MSHA's policies and practices, it is not b i nding on the Secretary. Brock v. Cathedral Bluffs Shale Oil Co., 796 F. 2d 533,
53 6-38 {D.C. Ci r 1986); Coal Employment Project v. Dole, 889 F.2d
112 7 , 113 0 n. 5 (D.C. Cir 1989). In addi tion, the Secretary
states that the "multiple violations" in these cases should not
be treated as one v i olation because they were not related to the
same piece of equipment or the same area o f the mine. Thus, the
guideline in the Program Policy Manual was not violated.
Third, Tide Creek argues that the Secretary is equitably
estopped from enforcing the citations in this proceeding. It
states that the Tide Creek Rock Mine has not changed in any
significant way since 1979. It argues that the Secretary should
be estopped from enforcing these citations because the cited
conditions were observed by MSHA inspectors on previous inspections and no citations were issued. Tide Creek wrote a letter to
MSHA after it received two citations in 1979 stating that the
inspector was asked to point out any additional "areas of def iciency."
(Ex. R-7). The letter went on to state that since he
could find no other violations, Tide Creek "has complied with all
..• requirements and there is nothing else to be done." Id.

39 2

_.

-.... _.....

equitab~e esto~9,.Q~S ~

The Commission has long held that
not apply to the Secretary in Mine Act pr-Oc""eedingS:-___King KnOb
coa-l-Co., 3 F'MSHRC i417, !421 22 (JUne-1'9'8'1.j";·~·· "'The Commission set
forth the reasoning behind its conclusion in King Knob, which I
\
will not repeat here. In some cases, courts have estopped the
\
government where it has engaged in "affirmative misconduct . "
See, e.g., United States v. Ruby, 588 F.2d 697, 702-04 (9th Cir.
1978), cert. denied, 422 U.S. 917 (1979).
I find that MSHA did ·
not engage in "affirmative misconduct" in this case and I hold
that the citations should not be vacated on that basis.
__..,,.,..
.......

Fourth, Tide Creek maintains that because many of the conditions cited by Mr. Widows have been in existence since 1979,
this action is barred by the statute of limitations and by the
equitable doctrine of latches. The Mine Act does not include a
s tatute of limitations. As stated by counsel for the Secretary,
the only limitation is that citations be issued with "reasonable
promptness." 30 u.s.c. § 814(a). · If an inspector believes that
a safety standard had been violated, he must issue a citation
with reasonable promptness. There has been no showing that
Mr. Widows unreasonably delayed issuing any citation after he
determined that a violation existed. For the same reason, there
has been no indication that MSHA knew of violations of safety
standards at the mine but slept on its duty to issue citations .
Finally, Tide Creek argues that it was denied due process
because the inspection was triggered by a telephone complaint
that contained false information. In particular, Tide Creek
contends that as "an American citizen entitled to due process in
some regard, we firmly believe that to allow the use of a secret
'Code-a-phone' system to allow complaints that are false about
the department and about an operator without any recourse being
allowed amounts to an abuse of process that has been set up to
protect miners working in mines."
(T.C. Br. 34).
Congress determined that miners should "play an active part
in the enforcement of the Act" and that "they must be protected
against any possible discrimination which they might suffer as a
result of their participation." s. Rep. No. 181, 95th Cong., 1st
Sess. 35 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 623
(1978). MSHA's system for anonymous telephone complaints furthers that objective. In addition, section 103(a) of the Mine
Act expressly grants authorized representatives of the Secretary
a right to enter all mines for ~he purpose of performing i nspections under the Act. The Secretary possessed the authority to
conduct the inspection at issue even if the inspection ensued
from a complaint that contained false information. See, Aloe
Coal Co., 15 FMSHRC 4, 8 (January 1993). "An inspector has broad
discretion to gain entry and to inspect a mine." Id. Accordingly, Tide Creek did not suffer an abuse of process.

393

General Background and Discussion
The Tide Creek Rock Mine consists of three work areas:
(1)
the crusher including auxiliary facilities; (2) the stockpile;
and (3) the extraction area in the pit. Usually, only three employees work at the mine, but on occasion there are four employees. John A. Peterson is the only person who operates the
crusher and he remains at the crusher's control tower at all
times when the crusher is operating. One employee loads rock at
the extraction area into a truck, drives the truck to the upper
hopper of the crusher, and dumps the rock into the hopper. On
occasion another employee also performs this task. The third
employee loads crushed rock into a truck at the lower hopper
(bunker silo) and dumps the rock at the stockpile. At the time
of the inspection, the crusher was not operating.
_ ,

In its brief, Tide Creek asserts that many of the conditions
described in the citations did not create a hazard to Mr. Peterson or to the other employees, for the reasons discussed in more
detail below. ·It argues that the citations should be vacated
because the conditions did not create a hazard to miners.
The Commission and the courts have uniformly held that the
- ···Mine Act is a strict liability statute. See, e.g. Asarco v.
FMSHRC, 868 F.2d 1195 (10th Cir. 1989). "[W]hen a violation of a
mandatory safety standard occurs in a mine, the operator is automatically assessed a civil penalty." Id. at 1197. In addition,
the Secretary is not required to prove that a violation creates a
safety hazard, unless the safety standard so provides.
The [Mine Act ] imposes no general requirement
that a violation of MSHA regulations be found
to create a safety hazard in order for a
valid citation to issue. 30 u.s.c. § 814(a).
If conditions existed which violated the
regulations, citations [are] proper.
Allied Products Co., 666 F.2d 890, 892-93 (5th cir. 1982}
(footnote omitted). The degree of the hazard is taken into
consideration in assessing a civil penalty under section llO(i).
30 u.s.c. § 820(i).
In assessing civil penalties, I have taken into consideration the fact that Tide Creek is a very small family-run business
and that, except as noted below, it promptly abated the 33 citations with its limited resources. Except as noted below, I find
that Tide Creek's negligence was low with respect to the citations. The conditions cited by Mr. Widows existed for a considerable length of time without receiving citations by MSHA.
Mr. Peterson was attempting to run a safe operation and reasonably believed that he was in compliance with the Secretary's
safety standards.

394

Specific Citations
Tide Creek also argues that the Secretary failed to prove
the violation alleged in each citation. In order . to discuss the
allegations in a systematic way, I have grouped the citations by
subject area rather than by docket number.

A.

ELECTRICAL CITATIONS

1. Citation No. 4339822 alleges that a danger sign was not
posted at the electrical shed to warn persons of electrical hazards. The safety standard, 30 c.F.R. S 56.12021, provides that
"suitable danger signs shall be posted at all major electrical
installations." Mr. Widows testified that the cited shed contained the majority of the mine's electrical components and that
it did not have a sign warning people that electrical equipment
was in the shed.
(Tr. 92-95, 181-84). At the time of the inspection the power was off. Id. Mr. Peterson testified that
there was no sign, but there was no person to warn of the danger
because he is the only person who goes into the shed.
(Tr. 335-36).
Tide Creek argues that the citation should be vacated
because the citation did not include a reference to the standard
allegedly violated. The Secretary admits that the citation did
not set forth what safety standard was violated, but contends
that Tide Creek was not prejudiced by the omission. It maintains
that Tide Creek knew the material facts that led to the issuance
of the citation and that its counsel cross-examined Mr. Widows
about the violation. It moves to amend the citation to conform
to the evidence.
I find that this omission is a technical defect and the
citation should not be vacated on this basis. In making this
finding I rely on the fact that "Exhibit A" to the Secretary's
petition for assessment of civil penalty in WEST 94-369-M, which
lists the citations and penalties, alleges a violation of section
56.12021 with respect to Citation No. 4339822. Thus, Tide creek
had notice of the standard allegedly violated long before the
hearing in this matter.
Based on the evidence, I find that the Secretary established
a violation. There is no dispute that the shed was a "major
electrical installation" and it did not have a danger sign. As
stated above, the fact that the condition created little or no
hazard to miners is not a defense to the violation. I find that
the violation was not significant and substantial ("S&S") and
that the gravity was low because all miners knew it was an electrical shed and, with the exception of Mr. Peterson, had no
reason to enter it. I also find that Tide Creek's negligence was
low. A penalty of $20.00 is appropriate.

395

2. citation No. 4339823 alleges that the motor for the ElJay gyro was not grounded creating a shock hazard in violation of
section 56.12025. The safety standard provides, in part, that
all metal encasing electrical circuits shall be grounded or provided with equivalent protection. Mr. Widows testified that all
electrical circuits must be grounded back to the source.
(Tr.
55-59, 172). He stated that the motor is part of a three-phase
480-volt circuit that required a fourth ground wire. He testified that if one of the wires touched the casing of the motor,
the metal could become energized creating an electric shock
hazard.
Id. Mr. Widows said that frame grounding is not sufficient under the safety standard because "you can never tell how
good the frame is" and a buildup of rust or corrosion could
interfere with .the grounding system.
(Tr. 57). Mr. Peterson
testified that the cited motor was bolted down to metal and that
all metal pieces at the crusher are interconnected with grounding
straps including this motor.
(Tr. 322-26, 371-73). He stated
that the motor was grounded as required by the standard.
The Secretary contends that the standard requires that an
operator install a separate ground wire returning to the power
source and that frame grounding is unacceptable under the
National Electrical Code. He maintains that a fourth grounding
wire is required under the standard. Tide Creek argues that the
safety standard does not require any particular type of
grounding.
I credit the testimony of Mr. Peterson that each piec e of
metal at the crusher was interconnected with grounding straps,
including the cited motor, and that a ground wire was connected
to the frame of the crusher and the mine's grounding rod.
(Tr.
3 22-26, 372-73, 411-13). He welds about twice a month using one
electrical lead and the frame of the crusher as the ground.
Mr. Widows testified that a continuous fourth grounding wire is
required by the standard.
(Tr. 402-11). Mr. Widows, however,
did not conduct any test to determine if the motor was grounded
and did not examine Tide Creek's grounding system. He simply
concluded that it violated the standard because there was no
fourth grounding wire.
The standard does not set forth any particular means of
grounding the metal compartment of a motor.
"Electrical grounding" is defined as meaning "to connect with the ground to make
the earth part of the circuit." 30 C.F.R. § 56.2 In addition,
the standard does not incorporate the National Electrical Code
by reference.
I find that the Secretary did not establish a
violation. The Secretary has the burden of proof and he has not
shown that the casing for the motor was not connected to the
earth. I do not doubt that a fourth wire grounding system is
state of the art at the present time and that it offers certain
advantages over Tide Creek's grounding system. The Secretary
failed to show, however, that the metal encasing the cited motor

396

was not grounded nor provided with equivalent protection. See,
e.g. McCormick Sand Corp., 1 FMSHRC 21, 23-24 (January 1980)
(ALJ). Accordingly, this citation is vacated.
3. Citation No. 4339824 alleges that continuity and resistance of the grounding system had not been tested in violation of
section 56.12028. The safety standard provides, in part, that
continuity and resistance of the grounding system shall be tested
at the time of installation, repair and modification, and annually thereafter. Mr. Widows testified that he asked Mr. Peterson
whether he had performed such tests and that he replied "No."
(Tr. 59-61, 173). He stated that the purpose of the test is to
"make sure that all motors, electrical boxes, energized circuits,
have a good ground path back to the source .... "
(Tr. 60).
The test would disclose any ungrounded motors. Mr. Peterson did
not deny that the grounding system had not been tested and stated
that the first time that an electrician tested the ground system
was after he added a fourth wire ground to abate Citation No.
4339823.
(Tr. 371-73). Tide Creek contends that Mr. Peterson's
use of the grounding system to operate his welder is a sufficient
test under the standard.
I find that the Secretary established a violation. There is
no dispute that the test was not done and Mr. Peterson's use of
the grounding system to operate his welder does not comply with
the standard. I agree with Mr. Widows that the violation was not
S&S and was not serious. I also agree that Tide Creek's negligence was moderate. A penalty of $50.00 is appropriate.
4. Citation No. 4339853 alleges that two cover plates were
missing from junction boxes in 110-volt lighting circuits in the
shop in violation of section 56.12032. The boxes were about 8~
feet high and no bare copper wire was observed. The safety
standard provides that inspection and cover plates on electrical
equipment and junction boxes be kept in place at all times except
during testing and repair. Mr. Widows testified that he observed
the condition while inspecting the shop.
(Tr. 101-07). Tide
Creek argues that the citation should be dismissed because there
is "no testimony in the record that the pictured items are 'electric equipment' or 'junction boxes'" (T.C. Br. at 23).
I find that the items cited are "junction boxes," as that
term is used in the standard, and that the Secretary established
a violation. Mr. Widows did not use the term "junction box" but
called them "electrical boxes."
(Tr. 101). There is no question, however, that the boxes in which the leads for the lights
in the shop were connected to the power source did not have
covers.
(Ex. P-14). The boxes were junction boxes. I find that
the violation was not S&S and not serious. The junction boxes
were on the ceiling and the shop was used for storage only. I
also find that Tide Creek's negligence was low. A penalty of
$20.00 is appropriate.

39 7

5. Citation No. 4340483 alleges that the cover box for the
El-Jay.gyro motor was missing exposing the insulated connections
in violation of section 56.12032. The citation states that the
box was about seven feet high. Mr. Widows testified that the box
encloses electrical connections to keep the weather out and that
the cover was missing. (Tr. 40-43, 162-62, 193-94; Ex. P-3). He
stated that the condition created a hazard because rain could get
into the electrical connections, cause a short, and injure someone. Id. Mr. Peterson testified that he took the cover off the
box because the motor shakes and jumps causing the wires to rub
against the cover.
(Tr. 318-321). He was concerned that the
wires could short out. Id. He testified that at the time the
citation was issued the wires were intact and that the condition
did not create a hazard. Id.
Tide Creek contends that removal of the cover plate was a
"repair" as that term was used in the safety standard because it
was removed to prevent a short circuit caused by vibration of the
crusher. It argues that the standard is therefore inapplicable.
I disagree and find that the Secretary established a violation.
The term "repair" does not include the permanent removal of the
box's cover to prevent wires from rubbing against the cover. I
construe the exception to refer to repairs to the wires, their
connections, and the box itself rather than a permanent solution
to a problem. There is no requirement that the cover be metal.
I find that the violation was not S&S or serious. Given the
location and condition of the wires in the box the hazard was
minimal. I also find that Tide Creek's negligence was low. A
penalty of $20.00 is appropriate.
6. citation No. 4339854 alleges that there was an improper
splice on a 110-volt power circuit in the shop in violation of
section 56.12013. The citation further states that the splice
was in the corner of the shop where there was little exposure and
no bare copper leads were observed. The safety standard provides, in part, that permanent splices and repairs made in power
cables shall be mechanically strong, insulated to a degree equal
to that of the original and provided with damage protection as
near as possible to that of the original. Mr. Widows testified
that the two cables had been spliced using a wire nut without
additional insulation or a box.
(Tr. 69-71, 176-77, 200-01;
Ex. P-8). He stated that using a wire nut did not satisfy the
requirements of the standard. Id. Mr. Peterson testified that
the splice was temporary and that it was not as strong as the
original, but that one could not be injured by it because it was
insulated to the same degree as the original.
(Tr. 326-28).
Tide Creek contends that the citation should be vacated
because the standard applies only to "permanent splices and
repairs of power cables." Tide Creek argues that the splice was
a temporary solution and that the Secretary failed to prove a
necessary condition precedent to a violation. Mr. Peterson

39 8

testified that the cable went to a new transformer that he had
just installed because the old transformer was no longer working.
(Tr. 326-27). He said that he attached the wires with a wire nut
as a temporary measure and Mr. Widows arrived shortly thereafter.
I credit Mr. Peterson's testimony in this regard.
I also credit
his testimony that it did not present a shock hazard.
The standard clearly states that - it applies only to permanent splices and repairs of cables, not to temporary splices. As
stated above, the splice was not in an easily accessible area.
I
find that the splice was temporary and that the cited standard
does not apply. Accordingly, the citation is vacated.
7. Citation No. 4340484 alleges that the start and stop
switch for the cross belt was not labeled and could not be
readily identified by location in violation of section 56.12018.
The safety standard provides that principal power switches shall
be labeled to show which units they control unless identification
can be made readily by location. Mr. Widows testified that a
start/stop switch was not labeled and could not be identified by
location.
(Tr. 44-46, 163-65, 194-96). He determined that it
was for the cross belt by asking Mr. Peterson. Id. At the time
of the hearing, ~e could not remember if there were any markings
on or near the switch but testified that he would not have issued
the citation if it was properly labeled. Id. Mr. Peterson testified that dust from the crusher would obliterate any label and
that he is the only person who uses the switch in any event.
(Tr. 321-22).
If anything goes wrong, he shuts down the plant at
the two main switches and everything is dead. Id. He stated
that the crusher is a one-man operation and he is the only one
who would have any need to shut off ·the power.
Tide Creek argues that because Mr. Widows did not have a
clear recollection of the switch or any marking on the switch at
the hearing the citation should be vacated.
It also argues tha t
the switch is identifiable by location since Peterson knows where
it is and what it operates, and he is the only person who works
at the crusher.
I find that the Secretary established a violation. Mr. Widows testified that the switch was not labeled,
although he could not remember if there were any markings in
the area. Mr. Peterson's testimony indicates that it was not
labeled. Accordingly, I find that the switch was not labeled.
I also find, based on Mr. Widow's testimony, that i t could not be
readily identified by location. As stated above, the Secretary
is not required to show that a hazard was created to establish a
violation.
I find that the violation was not S&S and that it created
little or no hazard. I credit Mr. Peterson's testimony that
other miners would not be at the crusher when it was operating
and would not be in the position of having to turn off the switch

399

in the event of an emergency. I also find that Tide Creek's
negligence was low. A penalty of $20.00 is appropriate.

B.

GUARDING CITATIONS

Tide Creek raises a number of issues that are common to all
of the guarding citations. Each citation was issued under 30
C.F.R. § 56.14107, which provides:
(a) Moving machine parts shall be
guarded to protect persons from contacting
gears, sprockets, chains, drive, head, tail,
and takeup pulleys, flywheels, couplings,
shafts, fan blades, and similar moving parts
that can cause injury.
(b) Guards shall not be required where
the exposed moving parts are at least seven
feet away from walking or working surfaces.
The citations involve pinch points of belts and pulleys.
Tide Creek contends that each citation should be vacated because
only Mr. Peterson travels within eight feet of the cited areas
and he does so only when the crusher is not running. The evidence discloses that the other employees drive trucks and do not
ordinarily walk past the cited areas when the crusher is operating. The record also reveals that Mr. Peterson ordinarily approaches the cited areas only to grease bearings and he does so
only when the crusher is not running.
The Commission held that the most logical construction of a
guarding standard "imports the concepts of reasonable possibility
of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary
human carelessness." Thompson Brothers Coal Co., Inc., 6 FMSHRC
2094, 2097 (September 1984). The Commission stressed that the
construction of safety standards involving miners' behavior
"cannot ignore the vagaries of human conduct." Id. (citations
omitted). Thus, I am required to consider all relevant exposure
and injury variables including "accessibility of the machine
parts, work areas, ingress and egress, work duties, and ... the
vagaries of human conduct" on a case-by-case basis. Id.
Taking these factors into consideration, I find that, as a
general matter, the fact that employees do not enter the crusher
area when it is running is not a valid defense to the citations.
It is not disputed that there is no physical barrier to prevent
an employee from walking into the crusher area past the cited
pinch points. An employee could stumble and come in contact with
a pinch point. The fact that such an event is unlikely relates
to the gravity of the violation and not whether a violation
occurred. I find that it is highly unlikely that anyone would

400

walk through the crusher while it was running but, given the
vagaries of human conduct, I cannot totally rule that possibility
out. An employee could decide that he needed to tr~vel through
the area; Mr. Peterson could be preoccupied and not see the employee; and the employee could slip, fall and injure himself in a
pinch point.
I consider these arguments on a citation-by-citation basis,
as discussed below.

1. Citation No. 4339821 alleges that the back side of the
V-belt pulleys for the El-Jay gyro were not guarded to prevent
persons from contacting the pinch points in violation of section
56.14107(&).
The citation states that the pulleys were about
four feet high and that the exposure was minimal since the front
side was guarded. Mr. Widows stated that people walk on the
guarded side of the pulley and that if someone slipped and
grabbed the guard to brace himself, his fingers could come in
contact with the pinch point.
(Tr. 88-92; Ex. P-12}. Mr. Peterson testified that there was a chain between two posts to keep
people out of the area.
(Tr. 336-40, 438-49; Ex. R-21).
He also
testified that the moving part was not within seven feet of a
work area, but t .h at i t was within seven feet of a walk area.
Id.
He stated that he walks by the pulley three or four times a day,
but that the crusher is not operating at that time.
Finally, he
stated that if you grabbed the belt while the pulley was running,
it would throw you towards the motor not the pinch point.
(Tr.
338} .

Tide Creek argues that this citation should be vacated
because there was no working or walking surface within seven
feet.
It also argues that the chain was accepted as a guard by
an MSHA inspector during a previous inspection.
Finally, it
contends that there was no chance of an injury because the pulley
runs away from the pinch point towards the electric motor.
Based on the evidence, I find that the Secretary established
a violation. Unguarded moving machine parts were present within
seven feet of where Mr. Peterson walks every day to run the
crusher. The pulley is not operating at that time. As discussed
above, other employees would not ordinarily walk through this
area while the crusher was operating. Given the vagaries of
human conduct, however, an employee could walk by the pulley
while it was operating to speak with Mr. Peterson in the control
tower. Mr. Peterson could be preoccupied with other matters at
the control tower and not see the employee. The employee could
slip and his fingers could become entangled in the pinch point.
He could grab the lower part of the belt by accident. As stated
above, the fact that the condition created little or no hazard to
miners is not a defense to the violation.

4 01

Perimeter guarding of the area around a machine is not an
acceptable alternative to site specific guarding of the moving
part. See, e.g. Moline Consumers co., 15 FMSHRC 1954 (September
1993) (ALJ); Brown Brothers Sand co., 17 FMSHRC 578 (April 1995)
(ALJ); Walker Stone Co., 16 FMSHRC 337, 357 (February 1994) (ALJ).
Thus, the chain that was supported by two posts along one side of
the pulley is not an acceptable guard. To comply with the standard, the guard must prevent an employee from unintentional contact with the moving part. As discussed above, the Secretary is
not estopped from issuing a citation for a violation of a safety
standard because an inspector on a previous inspection did not
cite the condition. In this instance, an MSHA inspector accepted
the chain as a guard during an inspection that occurred sometime
between 1979 and 1982. I find that this fact does not warrant a
dismissal of the citation, but rather indicates that Tide Creek's
negligence was quite low.
"Although the record reflects some
confusion surrounding MSHA's [interpretation of the safety standard], as a general rule, 'those who deal with the government are
expected to know the law and may not rely on the conduct of government agents contrary to law'" Emery Mining Corp. v. Secretary
of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984) (quoting Heckler v .
Community Health Services, 104 S.Ct. 2218, 2226 (1984)).
Based on the above, I find that the violation was not S&S
and that the gravity was low because miners did not travel near
the cited area while the machine was running.
I also find that
Tide Creek's negligence was low. Taking into consideration all
of the factors discussed above, a penalty of $20.00 is
appropriate.
2 . Citation No. 4339855 alleges that the self-cleaning tail
pulley for the bunker conveyor was not provided with a guard to
prevent persons from contacting the pinch points in violation of
section 56.14107(a). The citation states that the pulley was
about three feet high and that persons are not normally in the
area when the crusher is running. Mr. Widows testified that an
employee could accidentally get his hand caught in the pinch
points and sustain a serious injury.
(Tr. 107-115, 185; Ex.
P-15). Mr. Peterson said that nobody would ever be in the area
of the tail pulley while the crusher is operating.
(Tr. 341-343,
348) .
Tide Creek argues that the moving machine part is more that
seven feet from a walking or working surface. It states that the
evidence shows that it is at least 15 feet from the control tower
and at least 15 feet from the other miners driving trucks.
It
points to Mr. Widows' testimony that "people could go up there
but, more than likely, they would not." (Tr. 112). In sum, Tide
Creek contends that no one works or walks near the belt when it
is operating.

4 02

Tide creek also argues that this citation should be barred
by the doctrine of res judicata. In John Peterson. d/b/a Tide
Creek Rock Products, 4 FMSHRC 2241 (December 1982), Commission
Administrative .Law Judge George A. Koutras adjudicated several
guarding citations at Tide Creek's facility. Tide Creek argues
that two of the areas that Mr. Widows cited were previously cited
by another MSHA inspector and that Judge Koutras vacated the
citations on the merits. Accordingly, it contends that the
issues with regard to these citations have been previously
adjudicated and that the Secretary cannot relitigate them now.
Based on the evidence, I find that the Secretary established
a violation. People did not routinely work in and around the
self-cleaning tail pulley and it was not along a normal walkway.
Nevertheless, it was in an open area that was easily accessible
to anyone at the mine. The pinch point presented a hazard to
anyone who walked through the area. Given the vagaries of human
conduct, an employee could enter the area without being detected,
slip on the mud under the tail pulley, and get his hand caught in
the pinch point.
I also find that res judicata does not apply. Judge Koutras's description of the conditions at the self-cleaning tail
pulley is quite similar to the conditions that prevailed at the
time the citation was issued in the present case.
4 FMSHRC at
2255. The safety standard at the time of Judge Koutras's decision was different from the present safety standard. The old
safety standard, 30 C.F.R. § 56.14-3, provided that guards at
tail pulleys "shall extend a distance sufficient to prevent a
person from accidentally reaching behind the guard and becoming
caught between the belt and the pulley." The present standard
does not include such qualifications. All tail pulleys must be
guarded if they are less than seven feet away from walking and
working surfaces. Thus, the principal legal issue, the interpretation of the safety standard, differs.
Based on the above, I find that the violation was not S&S
and that the gravity was low because miners did not travel near
the cited area while the machine was running.
I also find that
Tide Creek's negligence was low. Taking into consideration all
of the factors discussed above, a penalty of $20.00 is ·
appropriate.
3. Citation No. 4339856 alleges that the head pulley and
V-belt drive of the "under El-Jay" conveyor was not guarded to
prevent persons from contacting the pinch points in violation of
section 56.14107(&). The citation states that the pulley was
about six feet above the ground and that there was little exposure because miners are not in the area. Mr. Widows testified
that someone could become entangled in the pinch points and
sustain an injury.
(Tr. 110-15, 185; Ex. P-15). Mr. Peterson

403

testified that nobody would ever be in the area of the tail
pulley while the crusher is operating.
(Tr. 341-343, 348).
The cited area was adjacent to the area cited ·in the previous citation, No. 4339855.
(Ex. P-15). The only significant
difference is that the unguarded area was about six feet off the
ground in this citation and about three feet off the ground in
the previous citation. The parties arguments are the same with
respect to both citations.
For the reasons discussed above, I find that the citation
should be affirmed. I also find that the violation was not S&S
and that the gravity was low because miners did not travel near
the cited area while the machine was running .
I also find that
Tide Creek's negligence was low. Taking into consideration all
of the factors discussed above, a penalty of $20.00 is
appropriate.
4. citation No. 4339858 alleges that the V-belt drive for
the main screen was not provided with a guard to prevent persons
from contacting the pinch points in violation of section
56.14107(a).
The citation states that the V-belts were about
three feet high and that a ladder was present which provided
access to the V-belts. It further states that the operator
stated that the drive was greased when the crusher was not
operating. Mr. Widows testified that it is not likely that the
alleged violation would cause an injury because the only access
to the area was by the ladder .
(Tr . . 115-18, 185-86). · He testified that "anybody could walk up there, but it was out of the way
•.• it wasn't a main travelway."
(Tr. 116). Mr. Peterson testified that nobody goes up the ladder to the V-belt drive when the
crusher is running.
(Tr. 295-96, 366).
Tide Creek argues that the alleged pinch point is more than
seven feet from a walking or working surface and that a person
would have to climb a 12-foot ladder to get to the pinch point.
The Secretary contends that because the ladder was "up" at the
time of the inspection, it was a working surface and the pinch
point was required to be guarded.
(Ex. P-18).
I find that the Secretary did not establish a violation
because the moving machine part was more than seven feet from a
walking or working surface. I credit Mr. Peterson's testimony
that he greases the drive when the crusher is not operating.
There is no other reason for anyone to climb the 12-foot ladder.
Even considering the vagaries of human conduct, I find that a
miner would not walk or work within seven feet of the pinch
point. Under the circumstances of this case, the ladder was not
a walking or working surface. Accordingly, the citation is
vacated.

404

5. Citation No. 4339851 alleges that the air compressor
behind the shop had unguarded V-belts in violation of section
56.14107(a).
The citation states that the compresspr is infrequently used and that minimal exposure is present. It further
states that the V-belt pulley was on the back side of the compressor and about three feet high. Mr. Widows testified that an
accident was unlikely because the belts were back against the
wall in an out-of-the-way area.
(Tr. 67-69, 175; Ex. P-7). He
also stated that there was an electrical box nearby and that if
someone were to throw the switch on the box, he would be close to
the compressor. Id. Mr. Peterson testified that the compressor
is automatically activated, there is no switch to turn it off or
on.
(Tr. 267-70, 356-57; Ex. R-4). He also stated that the compressor is about 15 feet from the road and is not within seven
feet of a walking or working surface . Id. He testified that no
employee goes near the compressor at any time.
Id. Finally, he
testified that the switch on the electrical box controls a pump
in the creek that is seldom used. Id.
Tide Creek argues that the compressor is more than seven
feet from any walking or working surface, particularly given its
remote location against the back wall of the shop. The Secretary
contends that the area around the compress or is a working surface
because someone occasionally turns on the electrical switch near
the compressor to activate a pump.
Based on the evidence, I find that the Secretary established
a violat i on. The area around the compressor is a working surface
on an occasional basis when the water pump is turned on. A person could trip and accidentally get his fingers caught in the
pulley for the V-belts, if the compressor was operating. The
risk of an injury is low, however, because of the location of the
pulleys against the back wall of the shop.
Based on the above, I find that the violation was not S&S
and that the gravity was low because a miner would enter the area
only occasionally and the pinch points are partially guarded by
location. I also find that Tide Creek's negligence was low.
Taking into consideration all of the factors discussed above, a
penalty of $20.00 is appropriate.
6. Citation No. 4339859 alleges that the tail, head, and Vbelt pulleys for the cross belt were not guarded to prevent persons from contacting the pinch points in violation of section
56.14107(a).
The citation states that the pulleys were about
four to five feet high and that persons pass by the tail pulley
on their way to the control tower for the crusher. Mr. Widows
testified that one had to pass within two feet of the cited area
to get to the control tower.
(Tr. 120-24; 134, 136-38; Exs. P-1,
P-16). He also testified that a miner would have to climb over
the cited area to get to a work platform. Id. He determined
that the alleged violation was S&S because anyone walking in the

4 0S

area would be exposed. Id. Mr. Peterson testified that the
cited area is more than seven feet from a walking or working
surface.
(Tr. 299-301; Exs. R-2, R-18). He stated that no miner
walks across the cited area except him to grease fittings and
that he greases the fittings before he starts the crusher. Id.
He stated that it is not the route he or anyone else uses to go
to the control tower.
On February 7, 1994, Mr. Widows issued Order No. 4340486
under section 104(b) of the Mine Act because he determined that
Tide Creek had not abated the conditions desc ribed in the citation. The order states that the operator built a handrail rather
than a guard to abate the citation despite the fact that Tide
Creek was advised that a handrail would not be acceptable.
Tide creek contends that the citation should be vacated
because the cited area is more than seven feet from a walking or
working surface. In addition, it argues that the alleged violation is not S&S because it was highly unlikely that anyone would
be injured. It argues that the section 104(b) order should not
have been issued because it installed the handrails in a goodfaith attempt to abate the citation. Finally, Tide Creek contends that the record makes clear that more time for abatement
was required and Mr. Widows' refusal to provide more time was an
abuse of his discretion.
Based on the evidence, I find that the Secretary established
a violation. I credit the testimony of Mr. Peterson that the
cited area was not along the route that he or other miners take
to reach the control tower. Nevertheless, Mr. Peterson testified
that he walks along the area to reach fittings.
Even though he
greases the fittings before the crusher is started, the cited
area is within seven feet of a walking surface . As stated above,
the Secretary is not required to show that a haz ard was created
to establish a violation .
I find, however, that the violation was not S&S and that the
gravity was low. It is highly unlikely that a miner would walk
along the route suggested by Mr. Widows while the crusher was
operating, even taking into consideration the vagaries of human
conduct. The employees of Tide Creek work in discrete areas and
it is highly unlikely that anyone would climb upon the superstructure of the crusher and thereby come in contact with the
cited pinch points. The Secretary failed to establish "a reasonable likelihood that the hazard contributed to will result in an
injury." Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
Accordingly, the violation is not S&S.
An MSHA inspector is authorized to issue an order under
section 104(b) of the Mine Act if he determines on a subsequent
inspection that:
(1) the violation described in the citation has
not been totally abated within the period of time originally

4 05

fixed in the citation; and (2) the period of time for abatement
should not be further extended. It is clear that the violation
was not totally abated within the time set in the citation.
Whether the time should be extended is subject to the inspector's
reasonable exercise of discretion. Tide Creek contends that it
was trying to abate about 33 citations in a short period of time
with only three miners. Mr. Peterson stated that it took about
three weeks to get everything done.
{Tr. 364). I find that
Mr. Widows did not abuse his discretion in issuing the order . By
that time, Mr. Peterson knew or should have known that a handrail
would not guard the moving machine parts. Mr. Widows advised him
of that fact on January 28.
{Tr. 137-38). I appreciate that
Tide Creek faced a difficult task, but its actions in this instance did not excuse its failure start working on guards.
I find that the negligence of Tide Creek was low. The
violation was not timely abated. Taking into consideration the
factors discussed above, including the fact that the violation
was not S&S and that the gravity was low, a penalty of $50.00 is
appropriate.
7. Citation No. 4339860 alleges that the tail pulley of the
three-inch conveyor was not guarded to prevent persons from contacting the pinch points in violation of section 56.14107(a).
The citation states that the pulley was about three feet high,
but there was little exposure in the area. Mr. Widows testified
that the pinch point of this conveyor was close to the area cited
in the previous citation, No. 4339860.
{Tr. 124-27, 138-40; Ex.
P-1). He determined that the exposure was not great because the
area is infrequently traveled. Mr. Peterson testified that the
cited area is more than seven feet from a walking or working surface.
(Tr. 299-301; Exs. R-2, R-18). He stated that no miner
walks across the c ited area except him to grease fittings and
that he greases the fittings before he starts the crus her.
Id.
He stated that it i s not the route he or anyone else u s es to go
to the control tower.
On February 7 , 1994, Mr. Widows issued Order No. 4339827
under section 104(b) of the Mine Act because he determined that
Tide Creek had not abated the condition described in the citation. The order states that the operator built a handrail rather
than a guard to abate the citation despite the fact that Tide
Creek was advised that a handrail would not be acceptable.
The cited area was adjacent to the area cited in the previous citation, No. 4339859.
(Ex. P-15). The facts are essentially the same. The parties' arguments are the same with
respect to both citations and the section 104(b) orders.
For the reasons discussed above, I find that the citation
should be affirmed. The area was within seven feet of a walking
surface and a guard was not present. I also find that the viola-

407

tion was not S&S and that the gravity was low because i t was
highly unlikely that miners would travel near the cited area
while the machine was running.
I also find that the section 104{b) order should be affirmed, for the reasons discussed above. Finally, I find that
Tide Creek's negligence was low. Taking into consideration the
factors discussed above, including the fact that the violation
was not S&S and that the gravity was low, a penalty of $50.00 is
appropriate.
C.

OTHER EQUIPMENT CITATIONS

1. Citation No. 4126437 alleges that the cat 966 loader did
not have a back-up alarm in violation of sectio n 56.14132(b) (1).
The citation states that the operator of the vehicle had an obstructed rear view and that no one was present to signal when it
was safe to back up.
The safety standard requires an automatic
reverse-activated signal alarm on se l f-propelled mobile equipment
if the operator has an obstructed view to the rear. Mr. Widows
testified that he obse rved the loader backing up witho ut a reverse alarm system or a spotter.
{Tr. 75-80; Exs. P-10, P-11).
He stated that :.the operator would not be able to see anyone close
behind the loader if he were to back up, because of the obstructed view. Mr. Peterson testified that nobo dy is ever walking
around in the vicinity o f the loader.
{Tr. 3 31-37).
Tide Creek argues that the evidence does not e s tablish that
the operator had an obstructed view. In addition, it argues that
the evidence establishes that only one employee is in the stockpile area and he is the operator of the loader. Finally, it contends that the safety standards are designed to protect miners
and not others who may be in the area.
{At the time the citati on
was issued, a customer was in the stockpile area) .
I find that the Secretary establ i shed a violation. The evidence makes clear that the loader operator had an o bstructed
view.
{Tr. 76; Exs. P-10, P-11). There is no dispute that a
backup alarm was not present. While it is true that only one
employee ordinarily works in the stockpil e area, other emplo yees
could be in the area without the knowledge of the loader operator.
Indeed, the fact that others are not usually there could
give the loader operator a false sense of security.
I also f i~d that the violation was S&S because the Secretary
established the elements of the S&S test set forth in Mathies.
First, as discussed above, there was a violation of the safety
standard. Second, the violation contributed to a measure of danger to safety. Third, there was a reasonable likelihood that the
hazard contributed to will result in an injury. Given the noise
of the loader and the fact that the operator's vision to the rear
is restricted, it is reasonably likely that someone would be

408

injured as a result of the violation. Mr. Peterson walks around
the property and it is unlikely that the loader operator would be
able to see Mr. Peterson if he were backing up. Finally, an
injury would be of a reasonably serious nature. I find that Tide
Creek's negligence was moderate. Based on the above, a penalty
of $100.00 is appropriate.
2. Citation No. 4126439 alleges that Tide Creek was not
conducting inspections of mobile equipment used during the shift
in violation of section 56.14100(&). The safety standard provides that self-propelled equipment to be used during a shift
shall be inspected by the equipment operator before being placed
in operation. Mr. Widows testified that he knew that safety inspections were not being made because the loader did not have a
back-up alarm.
(Tr. 81-84). He could not recall if he asked the
loader operator if a safety inspection was made or whether he
requested any documentation to support a safety inspection .
Id.
He said that such a document request was standard MSHA procedure.
Mr. Peterson testified that the equipment operators tell him if
there is any problem with their equipment.
(Tr. 334-35).
Tide Creek argues that the Secretary failed to prove that an
inspection was ·not made. I agree. The fact that the back-up
alarm was not functioning does not establish that a safety inspection was not made. Mr. Widows could not remember whether he
requested to see a safety checklist. The fact that such a request is standard MSHA procedure is not enough to establish a
violation. Accordingly, the citation is vacated.
3. Citation No. 4340481 alleges that the red Mack haul
truck was not provided with seat belts in violation of section
56.14131.
The citation states that the truck was used on level
ground around loaders and on short hauls. The safety standard
provides that seat belts shall be provided and worn in haulage
trucks. Mr. Widows testified that he looked into the vehicle and
could not find any seat belts.
(Tr. 127-29). He stated that he
did not consider the violation to be S&S because of the manner in
which the truck is used. Id. He further stated that Mr. Peterson told him that he thought that older vehicles did not need to
be equipped with seat belts. Mr. Peterson testified that the
cited haul truck was manufactured in the early 1960s.
(Tr. 34447; Ex. R-23). He said that it is only used to make 400-foot
trips over flat ground and that the top speed is 15 miles per
hour. He said that the lack of seat belts did not create a hazard because the truck would not tip over on flat ground and it
is only used on straight, flat trips .
Tide Creek argues that the Secretary did not establish that
the cited vehicle is a haulage truck. I disagree. The vehicle
is a dump truck.
{Ex. R-23). Although the term "haulage truck"
is not defined by the Secretary, I conclude that an ordinary dump

409

truck is a "haulage truck" as that term is used in the safety
standard.
I agree with Mr. Widows that the violation was not S&S and
was not serious. I find that Tide Creek's negligence was low.
A penalty of $20.00 is appropriate.

D.

TRAVELWAY CITATIONS

1. Citation No. 4339847 alleges that there was no handrail
in front of the conveyor at the operator's control tower to prevent persons from falling onto the conveyor in violation of section 56.11002. The safety standard provides, in part, that
crossovers, elevated walkways, elevated ramps, and stairw~ys
shall be of substantial construction provided with handrails, and
maintained in good condition. Mr. Widows testified that there is
a conveyor that runs along the side of the control tower for the
crusher.
(Tr. 97-101; Ex. P-13). He stated that one of the
duties of the crusher operator is to pick pieces of wood off the
conveyor.
Id. He testified that the lack of a handrail created
a risk of falling onto the belt, which was about 18 inches high.
Id. Mr. Peterson testified that he stands all day in the control
tower when the ~rusher is operating.
(Tr. 293).
Tide Creek argues that the control tower is not a crossover,
elevated walkway, elevated ramp, or a stairway. It contends that
the control tower is a platform and that the safety standard does
not apply. Tide Creek states that Mr. Peterson is the only person who works at the control tower and that he operates the controls for the crusher from there.
(R-17). The secretary did not
address this issue.
The safety standard applies to "crossovers, elevated walkways, elevated ramps, and stairways." Although a work platform
could be construed as a walkway under many circumstances, I find
that the platform cited here is not a walkway. The term "walkway" is not defined by the Secretary, but "travelway," a similar
term, is defined as "a passage, walk or way regularly used ...
for persons to go from one place to another." 30 C.F.R. § 56.2.
The control tower was not a route miners would take to go from
one place to another. It was not a route that maintenance personnel would use to gain access to equipment. Rather, it was a
work station for Mr. Peterson. I find that the Secretary failed
to prove that the control tower was covered by the subject safety
standard. Compare, Moltan Co., 11 FMSHRC 351, 355-36 (March
1989)(ALJ). Accordingly, this citation is vacated.
It is important for Tide Creek to understand, however, that another safety
standard, 30 C.F.R. § 56.11027, requires handrails on work
platforms.
2. Citation No. 4339849 alleges that the work p l atform
along the second screen was not provided with handrails to

410

prevent a person from falling in violation of section 56.11002.
The citation states that the platform was about six feet high and
that it is useq to change the shacker screens. Mr. Widows testified that Mr. Peterson told him that he needed to get on the
platform to perform periodic maintenance.
(Tr. 26-31, 148-51,
153-55, 191-93; Ex . P-1}. Mr. Widows said that Mr. Peterson
could fall six feet into a puddle of water without the handrails.
Mr. Peterson testified that the cited platform is not a walkway,
crossover, ramp, or stairway, and that it is not used to get from
one place to another at the crusher.
(Tr. 317-18).
Tide Creek argues that the cited area was not subject to the
cited standard. For the reasons set forth above, I agree.
Indeed, Mr. Widows referred to the area as a "work platform." Although a work platform may also be an elevated walkway in many
instances, in this case the Secretary failed to establish that it
was. Apparently, Mr. Peterson, on an infrequent basis, stands on
the platform to change a shaker screen. There is little evidence
as to the use of this platform. Accordingly, the citation is
vacated.
3 . Citation No. 4339846 alleges that the elevated walkway
along the bunker silo was not provided with handrails to prevent
persons from falling, in violation of section 56.11002. The
citation states that the walkway was about ten feet h~gh on one
side and that persons are required to be on the walkway to load
trucks. Mr. Widows testified that the walkway was where someone
would stand when trucks are loaded.
(Tr . 61-66, 173-75, 198-99;
Ex. P-6). He said that the walkway is along the bunker silo and,
after a truck backs in under the silo, an employee stands on the
walkway and pulls down a lever to release rock into the truck.
Id. He said that there is a danger that an employee could fall
while pulling on the lever. He also said that the walkway is a
wooden plank about ten feet long. Mr. Peterson testified that
the cited area was not a crossover, walkway, ramp, or stairway.
(Tr. 301-07, 364}.
Tide Creek argues that the cited area was not covered by the
safety standard. It contends that the standard was designed t o
protect individuals from falling from elevated areas that are
used as walkways and that the board by the bunker silo · was not
used in such a fashion. The Secretary did not address this
issue.
The cited area is only used when a truck is under the silo
and is ready to be loaded. A worker steps up on the board and
pulls down on the handle to release material into the truck.
It
is not a means ·of walking to any other location at the mine and
no person would be in the area unless a truck was ready to be
loaded. The Secretary failed to establish that the board was a
walkway, crossover, ramp, or stairway. A platform may be covered
by this safety standard in many situations, but the Secretary

411

failed to establish that this platform was a walkway. In addition, it appears that the cited area would be covered by section
56.11027, which requires handrails on scaffolds and work platforms. Accordingly, this citation is vacated.
E.

OTHER CITATIONS

1. Citation No. 4126433 alleges that the mine operator
failed to notify MSHA of the opening of the mine in violation of
section 56.1000. The safety standard provides, in part, that the
operator of any metal or nonmetal mine shall notify the nearest
MSHA office before starting operations. The standard also requires such operators to notify MSHA if it intends to close the
mine on a temporary or permanent basis. The citation states that
Mr. Widows told Mr. Peterson three years ago to notify MSHA when
he starts operating. Mr. Widows testified that MSHA never received any notice from Tide Creek that the mine was operating.
(Tr. 23-26). He further testified that he told Mr. Peterson that
if he wanted to get started in the mining business, he had to
notify MSHA in advance.
Mr. Peterson testified that the mine has been in operation
since at least 1979 and has had an MSHA identification number
since that time.
(Tr. 307-12, 368-69). He stated that the mine
was previously inspected by MSHA. He stated that at the time of
Mr. Widows' previous visit to the mine, the crusher was not running. Apparently, Widows told Peterson on that date that whenever he comes by he cannot find anybody at the mine. He also
told Peterson that if "you're not running, I'm going to take your
name out of my book." {Tr. 309). Mr. Peterson testified that
the mine was operating on that date, but the crusher was not
operating. He further testified that MSHA inspectors came by on
subsequent dates, but they did not inspect the mine because the
crusher was not running. Mr. Voris Probst, who was familiar with
the mine, testified that the mine has not been closed for the
past 20 years.
(Tr. 393-94, 399-400). He further testified that
the crusher operates about half of the time.
The Secretary failed to establish a violation of the standard.
I credit the testimony of Peterson and Probst with regard
to this citation. It is clear from the record that Tide Creek is
a small family-run business. Mr. Peterson operates the crusher
and oversees other operations at the minesite. Agnes M. Peterson
is the president, keeps the books, takes care of the paperwork,
and acts as Tide Creek's counsel. Mr. Peterson also is engaged
in logging and farming and Ms. Peterson practices law in st.
Helens, the county seat. If Mr. Peterson is not at the mine, the
crusher does not operate because he is the only person who operates the crusher. The safety standard does not require Mr. Peterson to notify MSHA every time he decides to operate the
crusher. Apparently, there are significant periods when the
crusher is not operating, but the mine is still open. The fact

412

that Mr. Widows decided to take the mine out of his "book" does
not establish a violation. Tide Creek must have notified MSHA
that it was operating at some point in the late 1970s because it
had an MSHA identification number at the time of the inspection.
There is no evidence that it ever notified MSHA that it was
closed. Accordingly, this citation is vacated.
2.
Citation No. 4339852 alleges that several compressed gas
cylinders were ·not secured in a safe manner in violation of section 56.16005. The safety standard provides that compressed and
liquid gas cylinders shall be secured in a safe manner. The
citation states that no mobile equipment traveled in the area.
Mr. Widows testified that two of the cylinders were in the shop
and one was outside the shop.
(Tr. 85-88, 181). He stated that
they were lying on the ground and the floor, and that Mr. Peterson told him that they were empty. Mr. Peterson testified that
he keeps cylinders that are full tied up or secured in a cart.
(Tr. 270-77, 357 - 5 8; Exs. R-8, R-9). He further stated that the
cited cylinders were empty.
Tide Creek argues that the cylinders should not have been
cited because they were empty. It contends that Mr. Peterson
secures empty bottles by opening the valve and laying them on the
ground. Tide Creek maintains that this is a safe procedure because it relieves all pressure from inside the cylinder.
Based on the evidence, I find that the Secretary established
a violation. The language of the standard makes clear that cylinders must be physically secured whether they are empty or full.
Although opening the valve of empty cylinders greatly reduces the
safety hazard, .such a method does not comply with the safety
standard.
I agree with Mr. Widows that the violation was not
S&S.
I find Tide Creek's negligence to be low. A penalty of
$20.00 is appropriate.
3. Citation No. 4340482 alleges that an oxygen gas cylinder
was found in the shop in violation of 56.16005. The citation was
issued on February 7, 1994. Mr. Widows testified that the cylinder was lying on the floor and it was not secured.
(Tr. 31-37,
151-52, 181, 193). As with the previous citation, No. 4339852,
the danger is that something heavy may break the valve· and cause
the gas in the cylinder to be suddenly released.
(Tr. 34).
Mr. Peterson's testimony was the same for both cylinder citations. The parties' arguments were also the same.
For the reasons discussed above, I find that the Secretary
established a violation. Mr. Widows determined that the violation was not S&S because the cylinder was not located in an area
where it was likely that the valve would be broken. At the
hearing, counsel for the Secretary sought to amend the citation
to allege an S&S violation based on the evidence.
I find that
the violation was not S&S. The likelihood of an injury contrib-

413

uted to by this violation was not very great. I also find that
Tide Creek's negligence was low. A penalty of $20.00 is
appropriate.
4. citation No. 4339826 alleges that a competent person was
not examining the working place at least once each shift and
recording these examinations in violation of section 56.18002.
The safety standard provides, in part, that a competent person
shall examine each working place at least once each shift for
safety hazards and that a record of such examinations shall be
kept. Mr. Widows testified that he asked Mr. Peterson about such
examinations and that he replied that they had not been done.
(Tr. 95-97) .
Tide Creek contends that the Secretary is seeking to prove
the violation on the basis that if the examinations had been
performed all of the other citations would not have been issued.
It contends that this citation constitutes "improper doubling-up"
and should be vacated.
Based on the evidence, I find that the Secretary established
a violation. The Secretary is not seeking to ·establish a violation based on the number of citations issued during the inspection. Rather, ' the Secretary established that the examinations
were not being performed and records of them were not being kept.
I agree with Mr. Widows' determination that the violation was not
S&S or serious~ I find that Tide Creek's negligence was low. A
penalty of $20.00 is appropriate.
5. citation No. 4339845 alleges that fire extinguishers
were not being visually inspected at least once a month in violation of section 56.4201(a)(1). The safety standard provides,
in part, that all fire extinguishers shall be inspected visually
at least once a month to determine that they are fully charged
and operable. Subsection (b) provides that a record of the
inspections must be kept. Mr. Widows testified that the fire
extinguishers did not indicate whether monthly examinations were
being made.
(Tr. 119-20, 133, 135-36, 187-88). He stated that,
typically, markings are made at the extinguisher to note the inspections. He further testified that when he asked Mr. Peterson
if examinations had been made, he replied that he did not know
that extinguishers had to be checked.
Finally, Mr. Widows
stated that the fire extinguishers were in operating condition.
On February 7, 1994, MSHA Inspector Mike J. Williams issued
Order No. 4340180 under section 104(b) of the Mine Act because he
determined that Tide Creek had not abated the citation. The
order states that no apparent effort was made to visually inspect
fire extinguishers every 30 days. Inspector Williams testified
that when he talked to Mr. Peterson about the citation, he was
told that he did not have time to get to it because he was working on abating the more serious citations.
(Tr. 207-09).

414

Mr. Williams stated that if Mr. Peterson had asked for more time
to abate the citation, he would have given it to him. Id.
Tide creek contends that the citation should be vacated
because it was issued for not having the proper documentation to
show that the fire extinguishers were inspected. I disagree.
Mr. Widows testified that Mr. Peterson told him that they had not
been examined. Accordingly, I find that the Secretary established a violation.
The citation was not abated within the time originally set
in the citation and Inspector Williams did not extend the abatement time. He believed that Tide Creek had been given sufficient
time to inspect the fire extinguishers. I find , however, that
the inspector abused his discretion in not extending the abatement time. There is no dispute that the fire extinguishers were
operational. It is also clear that Tide Creek was engaged in
trying to abate over 30 other citations. Given that the extinguishers were in operating condition, it was reasonable for the
operator to give it a lower priority. Inspector Williams testified that he would have given Tide Creek an extension if it had
asked.
At the hearing, Mr. Peterson impressed me as being a rather
stoic individual. He did not appear to be the type of person who
would ask for an extension or off er an excuse for not abating a
citation. He simply advised Mr. Williams that he had been so
busy with the other citations that he had not been able to get to
it. As a general matter, it is the responsibility of a mine
operator to ask for an extension. Given the circumstances of
this case, however, I find that Mr. Peterson's failure to request
an extension should be excused. It only took about 15 minutes to
abate the citation. Based on the above, the order of withdrawal
is vacated.
I agree with Mr. Widows that the violation was not S&S and
was not serious. I find that Tide Creek's negligence was low.
A penalty of $5.00 is appropriate.
6. Citation No. 4339844 alleges that there was an accumulation of combustibl~ waste in the oil storage building that
could create a fire hazard in violation of section 56.4104(a).
The safety standard provides that waste materials, including
liquids, shall not accumulate in quantities that could create a
fire hazard. The citation states that a 30-inch diameter spillage container contained two to three inches of spilled oil and
that persons are required to enter the building to get supplies.
Mr. Widows testified that he observed the container with an inch
or two of spilled oil in it. {Tr. 37-40, 155- 59 ; Ex. P-2). He
further said that the oil could be ignited by someone smoking or
by an open flame. He believed that the wooden floor was also
saturated with oil. He did not believe that there was any

415

electricity in the building. He testified that Mr. Peterson told
him that employees are not allowed to smoke at the mine.
Mr. Paterson testified that the oil that Mr. Widows saw was
in a container that was placed under an oil drum to catch any
drips or spills.
(Tr. 278-81, 359-61; Ex. R-10). The container
was directly under the spout of the oil drum.
He determined that
oil was an inch and a quarter deep. He testified that the oil
was motor oil used in his mobile equipment and that i t does not
ignite easily. He said that the oil in the container under the
drum was not waste because he uses it to lubricate chains and
other items at the mine. He did not believe that it created a
fire hazard and that he offered to get a torch to show that it
would not ignite. Mr. Voris Probst, a former plant manager for
Boise Cascade, .testified that the flash point of the motor oil at
the mine was so high that it did not pose a fire hazard.
(Tr. 385-86).
The Secretary argues that the citation should be affirmed
because "combustible" is defined as "capable of being ignited and
consumed by fire." He argues that the fact that the oil is not
easily ignited is not relevant.
I disagree and find that the
Secretary fail~d to establish that the oil in the drip pans
created a fire hazard. I credit Tide Creek's evidence that the
oil was not easy to ignite. I also find that there were no
ignition sources in the area. Accordingly, the citation is
vacated.
7. Citation No. 4126440 alleges that there was no sign
prohibiting smoking and open flame at the oil storage building in
violation of section 56.4101. The safety standard provides that
readily visible signs prohibiting smoking and open flames should
be posted where a fire or explosion hazard exists. Mr. Widows
testified that anytime there is a sufficient amount of materials
to create a fire or explosion hazard, a no smoking or open flame
sign is required.
(Tr. 55, 171-72). He stated that no sign was
present. He a~so stated that he did not observe any smoking or
open flames. Mr. Peterson testified that he does not believe
that there is a fire or explosion hazard in the shed because i t
is a long way from any ignition source.
(Tr. 281-82).
Tide Creek contends that no fire or explosion hazard existed
in the shed.
I disagree. As Exhibit P-2 shows, the shed was
filled with oil drums, paper, and miscellaneous items that could
catch fire.
The fact that there were no ignition sources in the
shed is not relevant. The standard is designed to warn people
not to bring potential ignition sources into the area.
A cigarette could ignite paper and rags in the shed, which could propagate a fire.
I agree with Mr. Widows that the violation is not
S&S or serious.
I find that Tide Creek's negligence was low. A
penalty of $20.00 is appropriate.

41 6

8. citation No. 4339857 alleges that the shop was not
maintained in a orderly fashion in violation of section
56.20003(a).
The safety standard provides that workplaces,
passageways, storerooms, and service rooms shall be kept clean
and orderly. The citation states that numerous items were a 1
over the floor creating a tripping hazard. It alleges that persons are required to be in the shop to turn on the lights and
answer the phone. Mr. Widows testified that there was junk,
material, and equipment all over the floor presenting a tripping
hazard.
(Tr. 72-73; Ex. P-9). Mr. Peterson testified that he
goes in and out of the shop on a daily basis, often in the dark,
and has never tripped or stumbled.
(Tr. 329-31). He stated that
he follows the trail shown on Exhibit P-9. He also stated that
the shop is for storage of tools only and that there is a phone
outside that most people use.
Based on the evidence, I find that the Secretary established
a violation. The cited area was not clean and orderly, and a
tripping hazard was created. I find that the violation was not
S&S or serious. Tide Creek's negligence was low. A penalty of
$5.00 is appropriate.
9. Citation No. 4126436 alleges that berms along the roadway up to the pit were not maintained in violation of section
56.9300.
The safety standard provides, in part, that berms shall
be provided and maintained on the banks of roadways where a dropoff of sufficient grade or depth exists that could cause a vehicle to overturn or endanger persons in equipment. The citation
states that there was a 20-foot drop-off where a vehicle could
overturn and roll down. It also stated that pick-ups and frontend loaders use the road. Mr. Widows testified that the cited
roadway was 20 to 30 feet wide and did not have any berms.
(Tr.
50-54, 168-71; Ex. P-5). He stated that he could see fresh
rubber tire tracks on the roadway. Mr. Peterson testified that
the road that was cited went from one level of the quarry to
another.
(Tr. 283-91, 361-63; Ex. R-11). He stated that this
roadway is changed all the time because he uses the Cat to push
overburden over the hill and dig a new road around to get the Cat
back up.
Id. He stated that on the day of the inspection he had
just created that road and $Omeone drove a loader down the road.
There was no berm because he had been working on it with the Cat.
He stated that he would not have put a berm on the roadway because the road was there only temporarily.
He also testified
that it was not reasonably likely that anyone would drive off the
road. Id. He admitted, however, that if someone drove off, he
could be injured.
Based on the evidence, I find that the Secretary established
a violation. The cited area was a roadway with a drop-off of
sufficient grade or depth to cause a vehicle to overturn. The
roadway did not have a berm. Although a bench that is not a
roadway would not need to be equipped with a berm, I find that

41 7

the cited area was a roadway because it was used by a front-end
loader on at least one occasion. If only the Cat had been on the
bench as part of the mining process, it would not appear that a
berm would be required.
The Secretary contends that the violation was S&S. In this
case, however, the roadway was infrequently used. The evidence
shows that it was only used once by the front-end loader and that
the operator did not plan on keeping the road for any period of
time. Accordingly, I find that the Secretary did not establish
that it was reasonably likely that the hazard contributed to by
the violation would result in an injury. See, e.g. Skelton Inc.,
13 FMSHRC 294, 302-04 {February 1991) {ALJ); Lakeview Rock Products, Inc., 17 FMSHRC 83, 90 (January 1995) (ALJ).
I find that
the violation was not S&S. Tide Creek's negligence was low. A
penalty of $20.00 is appropriate.
10. Citation No. 4126434 alleges that several large trees
were observed along the perimeter of the pit in violation of
section 56.3131. The safety standard provides, in part, that
loose or unconsolidated material shall be sloped back for at
least ten feet from the top of a quarry wall in p l aces where
people work or\ travel. It also states that other conditions at
or near the perimeter of a quarry wall which create a fall-ofmaterial hazard shall be corrected. The citation states that the
trees were 20 to 40 feet high and the quarry perimeter was not
stripped back at least ten feet.
In addition, the citation
states that the trees created a falling hazard for persons working in the quarry . Mr. Widows testified that a couple of trees
were leaning over near the edge of the quarry and the roots were
exposed.
(Tr. 46-50, 165-66, 186, 196-97; Ex. P-4). He believed
that the trees could fall into the quarry and injure someone. He
stated that the area had been recently worked and that the wet
conditions could cause the trees to fall.
He did not know how
long the trees had been there or what kind they were.
Mr. Peterson testified that the cited trees were maple trees
that were six to eight feet back from the edge of the bank.
(Tr.
314-16, 369-701. He stated that the trees were not leaning
towards a work area. He also stated that maple trees are tough
to push down because of their extensive root system. · He stated
that there was no danger of the cited trees falling over into the
quarry. Mr. Peterson is an experienced logger.
(Tr. 231).
Mr. Voris Probst, a former plant manager for Boise Cascade and
experienced logger, testified that maple trees do not come down
easily.
(Tr. 393).
I find that the Secretary did not establish that the trees
created a fall-of-material hazard to employees working in the
quarry.
I credit the testimony of Peterson and Probst in this
regard.
Exhibit P-4, upon which the Secretary puts significant
weight, is not persuasive. There was simply no proof that there

418

was a risk that the cited trees would fall into the quarry.
Accordingly, this citation is vacated.
11. Citation No. 4126431 alleges a violation of 30 C.F.R.
41.20, dealing with legal identity reports. At the hearing,
the Secretary agreed to vacate this citation.
(Tr. 75).
§

12. Citation No. 4126432 alleges a violation of 30 c.F.R.
50.30, dealing with quarterly employment reports. At the
hearing, Tide Creek agreed to pay the penalty proposed by MSHA
for this citation.
(Tr. 6).
§

13. Citation No. 4340642 alleges a violation of section
103(a) of the Mine Act. At the hearing, the Secretary agreed to
vacate this citation.
(Tr. 6).
II.

CIVIL PENALTY ASSESSMENTS

Based on the criteria in section llO(i) of the Mine Act, 30

u.s.c. § 820(i), I assess the following civil penalties as discussed above:
Citation Nos.

30 C.F.R. §

Assessed
Penalty

WEST 94-369-M
4126431
4126437
4126439
4339852
4339821
4339822
4339826
4339847
4339853
4339855
4339856
4339858

41. 20
56.14132 (b) (1)
56.14100(a)
56.16005
56.14107(a)
56.12021
56.18002(b)
56.11002
56.12032
56.14107(a)
56.14107(a)
56.14107(a)

vacated
$100.00
vacated
20.00
20.00
20.00
20.00
vacated
20.00
20.00
20.00
vacated

WEST 94-379-M
4126433
4339849
4340482

56.1000
56.11002
56.16005

vacated
vacated
20.00

56.4104(a)
56.12032
56.12018

vacated
20.00
20.00

WEST 94-492-M
4339844
4340483
4340484

419

WEST 94-493-M
4126434
4126436
4126440
4339823
4339824
4339846
4339851
4339854
4339857

56.3131
56.9300(a)
56.4101
56.12025
56.12028
56.11002
56.14107(a)
56.12013
56.20003(a)

vacated
20.00
20.00
vacated
50.00
vacated
20.00
vacated
5.00

56.4201(a) (1)
56.14107(a)
56.14107(a)
56.14131(a)

$ 5.00
50.00
50.00
20.00

50.30

100.00

§103(a)

vacated

Total Penalty

$640.00

WEST 94-638-M
4339845
4339859
4339860
4340481
WEST 95-48-M

I

4126432
WEST 95-275-M
4340642

III.

ORDER

Accordingly, the citations listed above are VACATED or
AFFIRMED as indicated, and Tide Creek Rock, Inc. is ORDERED TO
PAY the Secretary of Labor the sum of $640.00 within 30 days of
the date of this decision. Any amount previously paid for the
settled citation should be credited a ainst this amoun

Richard w. Manning
Administrative Law Judge

420

Distribution:
Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
(Certified Mail)
Paul A. Belanger, Conference and Litigation Representative, Mine
Safety & Health Administration, 3333 Vacavalley Parkway, #600,
Vacaville , CA 95688 (Regular Mail)
Agnes M. Peterson, Esq, TIDE CREEK ROCK, INC., 33625 Tide Creek
Road, Deer Island, OR 97054 (Certified Mail)
RWM

421

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

MAR 2 7 1996.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-407-M
A. C. No . 26-02184-05516
Bullfrog Mine Underground

LAC BULLFROG INCORPORATED,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 95-320-M
A. C. No. 26-02184-05524 A
Bullf~g

Mine Underground

LORENZO CEBALLOS, Employed by
LAC BULLFROG INCORPORATED,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 95-321-M
A. C. No . 26 · 02184-05525 A
Bullfrog Mine Underground

TIMOTHY HARTER, Employed by,
LAC BULLFROG INCORPORATED,
Respondent

422

DECISION

Appearances:

Jeanne M. Colby, Esq., Office of the .Solicitor,
U.S. Department of Labor, San Francisco,
California, for Petitioner;
Charles W. Newcom, Esq., and Andrew W. Volin,
Esq., Sherman & Howard L.L.C., Denver, Colorado,
for Respondents.

Before:

Judge Hodgdon

These consolidated cases are before me on petitions for
assessment of civil penalty filed by the Secretary of Labor,
acting through his Mine Safety and Health Administration (MSHA) ,
against LAC Bullfrog, Inc., Lorenzo Ceballos and Timothy Harter
pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820. The petitions
allege that the company violated section 57.6375 of the
Secretary's mandatory health and safety standards, 30 C.F.R.
§ 57.6375, and that Messrs. Ceballos and Harter, as agents of the
company, knowingly authorized, ordered or carried out the
violation. The Secretary seeks penalties of $1,500.00 against
the company and $1,000.00 and $1,200.00 against Ceballos and
Harter, respectively. For the reasons set forth below, I find
that the company violated the regulation, that Ceballos, but not
Harter, knowingly carried out the violation and I assess
penalties of $1,500.00 and $500.00, respectively.
A hearing was held on November 1 and 2, 1995, in Henderson,
Nevada. In addition, the parties filed post-hearing briefs in
these matters.
FACTUAL SETTING

The Bullfrog gold mine in Beatty, Nevada, has both an open
pit and an underground section. The underground section consists
of a series of horizontal passages, called "drifts," running off
of a main decline, which follow the gold vein. The drifts are
identified and distinguished by their elevation in meters and
whether they go north or south.
On December 7, 1993, a ground fall of about 40 to SO tons
occurred in the 906 South Drift. It was preceded by a blast in

42 3

the 918 North Drift . The blast occurred in a portion of the 918
North Drift which is directly over the area in the 906 South
Drift where the ground fall occurred .
Jack Bingham , the General Manager of the mine, Timothy
Harter, the General Mine Foreman , and Lorenzo Ceballos, a
Production Supervisor, were at the end of the 906 South Dr~ft
when the ground fell from the roof. They discovered the fallen
ground when they were backing their vehicle along the drift and
encountered dust and then the ground fall. The men had to leave
their vehicle and climb over the fallen ground to get out of the
drift.
MSHA Inspector Henry J. Mall was assigned to investigate the
incident. As a result of his investigation, he issued Citation
No. 4130929, pursuant to section 104(d) (1) of the Act, 30 U.S.C.
§ 814(d) (1), on December 8.
It alleged a violation of section
57 . 6375 of the Regulations because
at approximately 845 [sic] AM 12-7- 93 a heading in 918
North was blasted without ample warning given to the
(3 ) employees who had entered 906 South area which was
directly under the 918 North heading where the blast
was to occur. The distance between the areas is
approximately 8 meters (25 ft ) . When the blast
occur[r]ed approximately 40 to 50 tons of material
above the anchorage zone supported with 6 ft roof bolts
came down in the 906 South travel way. The (3 )
employees in 906 South were approximately 300 meters
(984 ft) from where the fall of ground occur[r]ed. The
company has a written policy dated 12 - 3-92 - 3-23 - 92
[sic] on clearing the areas effected [sic] from [sic]
t he blasting that is to take place. On this date 12-793 the company failed to follow a safe practice of
warning their [sic] employees of the blast in 918 North
and did not follow company written policy. This is an
unwarrantable failure.
(Govt. Ex. H.)

4 24

Special Investigator Pennis J. Palmer conducted an
investigation of the incident during April 1994 for the purpose
of determining if the violation had been knowingly ~ommitted by
any agents of the company. As a result of his investigation, the
Secretary filed civil penalty petitions against Ceballos and
:Harter under section 110 (c) of the Act, 30 U.S. C. § 820 (cJ·. 1
PXNDXHGS OF PACT AND CONCLVSIONS OF LAW

Section 57.6375 is entitled Loading and blast site
restrictions and requires that: "Ample warning shall be given
before the blasts are fired. All persons shall be cleared and
removed from areas endangered by the blast. Clear access to
exits shall be provided for personnel firing the rounds." 2
The issue in this case is whether the three men were in an
area endangered by the blast from which they should have been
cleared and removed. I conclude that the 906 South was an area
endangered by the blast and that the men should have been cleared
or removed from · the drift prior to the blast.
Was the 906 South an area endangered by the blast?
The Commission has not had occasion to address the issue of
what constitutes an area endangered by the blast with regard to
this regulation. However, it has discussed section 77.1303(h),
30 C.F.R. § 77.1303(h), having to do with surface coal mining,

Section llO (c) provides, in pertinent part, that:
"Whenever a corporate operator violates a mandatory he.alth or
safety standard . . . any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried out
such violation . . . shall be subject to the same civil penalties
1

"
This regulation was effective until December 31, 1993.
has since been replaced by section 57.6306(f), 30 C.F.R.
§ 57.6306(£).
2

425

It

which has a similar requirement. 3 With regard to that
regulation, the Commission held that:
To establish a violation of the standard, based on a
failure to clear and remove all persons from the
blasting area, the Secretary must prove that an
operator has failed to clear and remove all persons
from the "blasting area," as that term is defined in
section 77.2(f). This requires the Secretary to
establish the factors that a reasonably prudent person
familiar with mine blasting and the protective purposes
of the standard would have considered in making a
determination under all of the circumstances posed by
the blasting issue.
Hobet Mining & Construction Co., 9 FMSHRC 200, 202 (February
1987 ). The Commission went on to say that "(a)n operator's preshot determination of what constitutes a blasting area is based
not only upon the results of prior shots, but also depends ·Upon a
number of variables affecting the upcoming shot." Id.

Although section 77.1303(h) uses the term "blasting area"
and section 57.6375 uses "area endangered by the blast," they
mean essentially the same thing. Thus, it ~ould follow that if
the company had not included the 906 South in the area endangered
by the blast in the 918 North, the "reasonably prudent person"
test would be applied to determine whether it should have been
included. However, it is not necessary to go through the
requirements of the test in this case because it is undisputed
that it was the mine's practice to clear the level above and the
level below the level being blasted.
Since the 906 South is the level below the 918 North and
since two miners were, in fact, cleared from that area before the
blast, the company obviously had determined that it was an area
endangered by the blast. Therefore, the Respondents' argument,

3 Section 77. 1303(h) provides that: "Ample warning shall be
given before blasts are fired. All persons shall be cleared and
removed from the blasting area unless suitable blasting shelters
are provided to protect men endangered by concussion or f lyrock
from blasting."

426

in their brief, that the 906 South was not an area endangered by
the blast under the "reasonably prudent person" test, is
inapposite. The company is bound by its pre-shot determination.
Were the miners in the endangered area at the time of the blast?
Having determined that the 906 South was an area endtl!lgered
by the blast, the next issue is whether Bingham, Harter and
Ceballos were in the endangered area at the time of the blast.
They argue that they did not enter the 906 South until sometime
after the blast in the 918 North. On the other hand, the
Secretary submits that the men were at the end of the 906 South
when the blast occurred. Finding the Respondents' statements
made at the time of the incident more credible than the testimony
at the hearing, I determine that the men were at the end of the
906 South at the time of the blast.
Inspector Mall arrived at the mine on the afternoon of the
incident and began his investigation . Nevada State Inspector
Edward M. Tomany· arri ved to investigate the incident the next
day. On December 8, they interviewed several o; the witnesses
together.
According to their notes taken at the time, Louis
Schlichting, who did not testify at the hearing, told them that
he was the assistant foreman in charge of the blasts in the 918
North and South. He f~rther told them that he cleared two
employees out of the 906 South when getting ready to blast the
918 North, but that he did not barricade the 906 South or do
anything to prevent anyone from entering it during the blast .
Finally, he told them that he assumed that the 906 South was
clear when he blasted and that he would not have blasted the 918
North if he had known that anyone was in the 906 South.
According to their notes and testimony at the hearing,
Lorenzo Ceballos told them that he knew that both the 918 North
and South were going to be blasted and that while on the decline
between the 918 and the 906 he heard a blast which he assumed was
the 918 North. Additionally, he told them that the three
supervisors were at the end of the 906 when the 918 North was
blasted. Inspector Mall testified at the hearing that Ceballos
later told him that the blast he heard was the first blast

427

(apparently the 918 South) and that the second blast occurred
while he was in the 906.
Tim Harter told the inspectors that he was not aware that
the 918 North was going to be shot. There is no indication that
either inspector asked him where he was when the blast and the
ground fall occurred. However, other employees of the mi~e gave
the inspectors the impression that the blast and the ground fall
had happened while the supervisors were in the 906 South.
Inspector Mall concluded that the blast heard on the decline
must have been the 918 South and that the 918 North blast
occurred while the supervisors were at the end of the 906 South.
Consequently he wrote the citation in question. On receiving the
citation and at the close-out conference, no one from the company
suggested to the inspector that he had his facts wrong.
Inspector Tomany apparently came to the same conclusion as
Inspector Mall.,. His notes state that he notified his boss that
"3 employees, J. Bingham, T. Harter, L. Ceballos were at the face
of the 906 s when the 918 north blast dropped ground to obstruct
exit of the 906 south.n (Govt. Ex. Vat 5.)
It appears that no one talked with Bingham during the
investigation and he evidently was not present at the close-out
conference. However, Special Investigator Palmer interviewed him
in April 1994. Palmer testified, and his notes indicate, that
Bingham, who was no longer working for the company, told him that
he felt the second blast while backing out of the drift and that
they later came across dust and the ground fall.
Palmer also interviewed Ceballos and Harter. By this time,
Ceballos' story had changed somewhat. He said that the blast in
the 918 South had to have gone off first; that the bl~st the
supervisors heard while on the decline was in the 918 North. He
stated that the 918 South is a long drift and the 918 North a
shorter drift and that Schlichting told him in a discussion after
Mall's investigation that he had set off the 918 South first
because it would be dangerous to light the fuses in any other
order.

428

Harter told Palmer that he assumed that the blast he heard
on the decline was the 918 South because that was the only blast
that he expected. He claimed that he did not find out that there
was a second blast until after he got out of the mine. He
further averred that he would not have gone into the 906, or
allowed anyone else to go into the 906, if he had known a blast
was going to be directly above it.
In December 1994, Ceballos and Harter were informed that
MSHA intended to seek civil penalties against them under section
llO {c) of the Act. On December 21, they sent a letter to MSHA
requesting a conference on the matter and setting out their
position. In the letter, they summed up their position as
follows:
[W]e believe that MSHA may have the mistaken
impressions that three employees entered the 906 south
prior to the 918 north blast (the final blast ) , that
the blast caused the ground fall, and that the three
employees were non-supervisory. None of these
impressions are [sic] accurate. Instead, as the facts
recited above show, Ceballos knew there would be
blasting in the 918 north, the three of them did not
enter the 906 south until after the 918 blast took
place, the ground fall did not occur as part of the
blast, but took place approximately 15 to 20 minutes
later
. . .
{Govt. Ex. G at 2. )
By the time of the hearing, the Respondents had added more
details to their version of the incident. For the first time,
they claimed that the blast in the 918 South was a "slab" round
while the blast in the 918 North was a "face" round. The
significance of this is that a slab round uses less explosive
than does a face round and is, therefore, not as loud. Thus, at
the hearing, Ceballos testified, "I knew there was two blasts
that were going to go off, but I only expected to hear one."
(Tr. 335. )
With regard to what he initially told the inspectors,
Ceballos testified as follows:

4 29

Did you tell Inspector Mall or Inspector Tomany
that you heard a blast while you were on the decline on
December 7?
Q.

A.

Yes.

Did you tell them whether or not you thought tha~
blast was from the 918 North or the 918 South?

Q.

A.

I don't recall exactly if I told them it was.

Did you tell Inspectors Mall or Tomany that you
heard the blast of the 918 North while you were in the
906 South?

Q.

A.

No, I didn't.

Do you recall whether or not Inspector Mall accused
you of mistaking the blast that you heard on the
decline for the 918 South blast as opposed to the 918
North blast?
Q.

A. I know there was a lot of confusion in there when
they were asking a lot of questions. I was really
confused in that open discussion.
(Tr. 342.)
Obviously, when an inspector arrives to investigate an
accident after it has happened he must rely on what the witnesses
tell him and what physical evidence is available. In this case,
Inspector Mall did just that and concluded that a violation of
section 57.6375 had occurred. While the company argued with him
abo~t the citation after he gave it to them, and dur~ng the
close-out conference, no one asserted that he had the facts
wrong.
Now the company alleges that is exactly what happened.
However, I do not credit the revised version for the following
reasons. The statements given by witnesses at the time closest
to the incident, when the details are freshest in their minds, .
and before they have had the opportunity to formulate statements
favorable to their own, or the company's, cause, are more

430

reliable than the witnesses' later statements. 4 Further, the
Respondents did not raise this new scenario when given the
citation or at the close-out conference. Nor did they question
the inspectors facts. Finally, Jack Bingham, General Manager of
the mine, unequivocally stated that he felt the second blast
while at the end of the 906 South.
Respondents have attacked Bingham's credibility on the
grounds that his statement is hearsay, that his ability to
distinguish sensations is questionable, apparently because he was
not wearing his hearing aid underground, and that the slab round
in the 918 South was too small to be heard. While it is true
that Bingham's statement is hearsay, I credit it because at the
time that it was made, it was an admission, or, at a minimum, a
declaration against interest, and because Respondents had
subpoenaed Bingham to testify at the hearing, but announced at
the beginning of the second day that they did not intend to call
him. Since they had the opportunity to rebut or explain the
hearsay statement by the author of the statement, but chose not
to, they cannot now argue that the statement is unreliable.
With regard to Bingham's ability to distinguish sensations,
I note that he stated that he felt the blast, not that he heard
it. Furthermore, while there is no evidence concerning the
extent of his ability to hear, other than that he wore a hearing
aid, there is evidence that he, Ceballos and Harter held a
discussion in the 906 so that he must not have been totally deaf.
Finally, there is nothing in the record to indicate that the
slab round in question could not be heard. In fact, Harter
stated that he was expecting a slab round to be used in the 918
South and when he heard the blast on the decline, assumed that
was what he had heard.
I find that Bingham, Harter and Ceballos were in the 906
South at the time of the blast in the 918 North and the resulting
ground fall. Since the company had determined that this was an

At the hearing, Ceballos only specifically denied telling
the inspector that he heard the 918 North blast while in the 906
South. He either could not "recall" making other statements or
was "confused."
4

431

endangered area for such a blast, I conclude that the company
violated section 57.6375 by not clearing them from the area
before blasting .
Significant and Substant ial

The Inspector found this violation to be "signif ican~ and
s ubstantial." A "significant and substantial" (S&S) violation is
described in section 104(d} (1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard." A violation is properly designated S&S "if, based upon
the particular facts surrounding that violation, t here exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set· out four criteria that have to be met for a
violation to be S&S . See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin
Power, Inc . , 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria) . Evaluation of the criteria is made in terms
of "continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987) .
Applying the Mathies criteria, I have already found (1),
that the company violated a mandatory safety standard. I further
find: (2) That this violation contributed to a measur.e of danger
to safety, i.e. blasting is inherently dangerous, those within an
area endangered by a blast could be blown up, hit by flyrock, or,
as occurred in this case, caught by a ground fall; (3) That there
is a reasonable likelihood that a ground fall would result in an
injury; and (4) That there is a reasonable likelihood that the
injury would be reasonably serious in nature, involving
significant cuts and bruises, broken bones or death.

432

Vnwarrant&ble Failure

The inspector found this violation to be the result of an
"unwarrantable failure" on the company's part. The Commission
has held that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence by a mine operator in
relation to a violation of the Act. Emery Mining Corp., 9 FMSHRC
1997, 2004 (December 1987 ) ; Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2010 (December 1987 ) . "Unwarrantable failure is
characterized by such conduct as 'reckless disregard,'
'intentional misconduct,' 'indifference' or a 'serious lack of
reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal
Corp. 13 FMSHRC 189, 193-94 (February 1991) . " Wyoming Fuel Co.,
16 FMSHRC 1618, 1627 (August 1994).
Ceballos and Harter both stated that they would not have
gone into the 906 South if they had known that there was going to
be a blast in the 918 North. Thus, they were clearly aware of
the danger involved. Ceballos thought that it was safe to go
into the 906 because he assumed that the blast he heard on the
decline was the 918 North blast.
There is no evidence of intentional misconduct in this case.
I believe the Respondents when they state that they would not
have gone into the 906 if they had known the 918 was going to be
blasted. However, that does not remove this case from the
unwarrantable failure category.
Ceballos, a miner with at least 18 years experience, the
person normally in charge of blasting operations, knew that plans
had changed from blasting the 918 South to blasting the 918 North
and South. He knew this because Schlichting told him so just
prior to the men going down the decline past the 918s to the 906.
He heard one tlast and concluded that the 906 was safe. I find
that this conclusion was not a reasonable one. Cf. Wyoming Fue1
Co. at 1628-29.
A supervisor in his position and with his experience should
have done more . Knowing that there were going to be two blasts,
and hearing only one, made it incumbent on him to verify that
both blasts had been performed before entering the 906. While
failure to do that does not rise to "intentional misconduct" or
even "reckless disregard," it is more than ordinary negligence.

4 33

I conclude that the failure to confirm that the 918 North had
been blasted before entering the 906 constitutes "indifference"
or a "serious lack of reasonable care" and that, therefore, the·
violation resulted from the company's unwarrantable failure.
Section llQ(c) yiolations

The Secretary has alleged that Ceballos and Harter
"knowingly" violated section 57.6375 and are personally liable
under section llO(c) of the Act. 5 Based on the evidence, I find
that Ceballos "knowingly" carried out the violation, but Harter
did not.
The Commission set out the test for determining whether a
corporate agent has acted "knowingly" in Kenny Richardson, 3
FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 623 (6th Cir. 1982 ),
cert. denied, 461 U.S. 928 (1983), when it stated: "If a person
in a position to protect safety and health fails to act on the
basis of info~ation that gives him knowledge or reason to know
of the existence of a violative condition, he has acted knowingly
and in a manner contrary to the remedial nature of the statute ."
The Commission has further held, however, that to violate section
llO(c), the corporate agent's conduct must be "aggravated," i.e.
it must involve more than ordinary negligence. Wyoming Fuel Co.,
supra at 1630; BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245
(Augus t 1992); Emery Mining Corp., supra at 2003-04.
In Roy Glenn, 6 FMSHRC 1583, 1586 (July 1984), the
Commission expanded the test to cover a situation where the
violation does not exist at the time of the agent's failure to
act, but occurs after the failure, when it said:
Accordingly, we hold that a corporate agent in a
position to proter.t employee safety and health has
acted 'knowingly', in violation of section llO(c) when,
based upon facts available to him, he either knew or
had reason to know that a violative condition or
conduct would occur, but he failed to take appropriate
preventative steps.
That describes the situation in this case.

5

See n.1, supra, for the provisions of this section.

434

As a supervisor, Ceballos was in a position to protect
employee safety by not taking the tour into the 906 South until
after the blast in the 918 North. He knew, based on what
Schlichting told him, that both sections of the 918 were going to
be blasted. He knew that if they went in the 906 before the 918
North blast that he would be in an area endangered by the blast.
Finally, he failed to take appropriate preventative steps;· that
is to insure that the 918 North blast had occurred before
entering the 906 South.
As set out above, this was aggravated conduct involving more
than ordinary negligence. Accordingly, I conclude that Lorenzo
Ceballos knowingly carried out the violation of section 57.6375
and is, therefore, personally liable under section llO (c ) .
The same, however, cannot be said about Harter. He knew
only that the 918 South was to be blasted. No one knew that both
the North and South were going to be blasted until Schlichting
informed Ceball~s of that during the tour. While Harter was
present when Schlichting told Ceballos of the change, neither
Schlichting nor Ceballos could say whether Harter heard the
conversation. Both doubted it. Ceballos said that Schlichting
spoke directly into his ear because there was a fan in the area.
Ceballos testified that when they passed the 918 on the
decline he informed Harter that they could not go into that area
because they were blasting. Harter maintained that he did not
hear Schlichting tell Ceballos that the 918 North was also going
to be blasted and that he did not know that the 918 North was
blasted until after he got out of the mine.
Since there is no evidence to contradict it, I credit
Harter's claim that he thought 0nly the 918 South was to be
blasted and that when he heard the blast he thought it _was safe
to enter the 906 South. Ceballos' statement about not being able
to go into "that area" because they were blasting was not
specific enough to put Harter on notice that the situation, as he
understood it, had changed. Consequently, I conclude that
Timothy Harter did not knowingly carry out the violation of
section 57.6375 and is not personally liable under section
110 (c) .

4 35

CIVIL PENALTY ASSESSMENT
The Secretary has proposed civil penalties of $1,500.00 for
the company and $1,000.00 for Ceballos for this violation.
However, it is the judge's independent responsibility to
determine the appropriate amount of a penalty, in accordauce with
the six criteria set out in section llO (i) of the Act, 30 ti.s.c.
§ 820(i).
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151
(7th Cir. 1984).
In connection with the six criteria, I note from the
pleadings that the Bullfrog mine is a medium size gold mine and
that LAC Bullfrog, Inc . , is a medium size company. The violation
history does not indicate an excessive number of violations.
There is no evidence that payment of a civil penalty will
adversely affect the company's ability to remain in business. On
the other hand, the gravity of the violation is serious and
involved a high degree of negligence. Taking all of this into
consideration, I conclude that the penalty proposed by the
Secretary is appropriate .
Obviously, except for the gravity of the violation, none of
the penalty criteria apply to an individual. However, taking
into consideration the gravity of the violation and Mr. Ceballos'
position with the company, I find that the penalty proposed by
the Secretary is somewhat high. I conclude that a penalty of
$500.00 is appropriate in this case .
ORPER
The civil penalty petition against Timothy Harter is
DISMISSED. Citation No. 4130929 issued to LAC Bullfrog, Inc. and
the civil penalty petition alleging that Lorenzo Ceballos
knowingly carried out the violation in the citation a~e AFFIRMED.
Accordingly, LAC Bullfrog, Inc., or its successor, 6 and Lorenzo
Ceballos are ORDERED TO PAY civil penalties of $1,500.00 and

In a subsequent hearing involving this company, counsel
for the Respondent advised that the mine was now owned by Barrick
Bullfrog, Incorporated.
6

436

$500.00, respectively, within 30 days of this decision.
receipt of payment, these proceedings are DISMISSED.

On

{~~

Admini strative Law Judge

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Room 1110, San Francisco, CA 941052999 (Certified Mail )
Charles W. Newcom , Esq., Andrew W. Volin, Esq., Sherman & Howard
L.L.C., 633 17th St . , Suite 30 00, Denver, co 80202 (Certified
Mail )
/lt

437

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

MAR 2 9 \996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-3
A.C. No. 11-00599-03883

v.
Mine:

Orient No. 6

FREEMAN UNITED COAL MINING,
. Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 95-262
A.C . No. 11-00599-03925-A

v.
Mine:

Orient No. 6

JAMES YANCIK, Employed by
FREEMAN UNITED COAL MINING,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 95-269
A.C. No. 11-00599-03926-A

v.
Mine:
NEAL MERRIFIELD, Employed by
FREEMAN UNITED COAL MINING,
Respondent

438

Orient No. 6

DECISION

Appearances:

Christine M. Kassak, Esq., Office of. the
Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Petitioner;
Richard R. Elledge, Esq., Gould & Ratner, Chicago,
Illinois, for Respondent;
Timothy M. Biddle, Esq., Crowell & Moring,
Washington, D.C., for Respondent.

Before:

Judge Fauver

These civil penalty cases were brought under§§ lOS(d) and
llO(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 At ~- The corporation and two of its
supervisors, who are qualified engineers, are charged with
failure to maintain an elevated walkway in good repair to prevent
accidents and injuries to employees. The walkway collapsed and
four men were severely injured.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative
and reliable evidence establishes the Findings of Fact and
further findings in the Discussion below:
PINPIHGS OP PACT

l. Freeman owns and operates Orient No. 6 Mine in
Waltonville, Illinois, where it produces bituminous coal for
sales in or substantially affecting interstate commerce .
2. Freeman is a large coal mine operator, producing over 4
million tons a year . Orient No. 6 is a large mine, producing
over a million tons a year.

3. In 1968 Freeman engaged Roberts and Schaefer Company,
Engineers and Contractors, Chicago, Illinois, to design and build
a preparation plant at Orient No. 6 Mine.
4. The plant is 105 feet high, 100 feet long and 100 feet
wide. It is a frame structure with steel columns and beams that
provide a basis for installing and removing floors as needed for
conveyor belts and other equipment used in the plant .

4 39

5. Because of of the unique properties of the coal at Orient
No. 6 Mine, the atmosphere in the preparation plant is very
corrosive to metal. This condition hastens the deterioration of
steel columns, beams and other metal supports.
6. Because of widespread corrosion and deterioration of
steel members in the preparation plant, in 1984 Freeman built a
new preparation plant adjacent to the old one. The old plant was
abandoned as a preparation plant but kept as a building for
certain functions. Walkways and conveyor belts run through the
old plant to the new plant, and the plants are connected by pumps
and motor controls. In addition, there is a large electric power
station in the old plant. The areas of the old plant that are
most frequently used are elevated walkways, conveyor belts, the
electrical power station, and a drainage system.
7. Once metal deterioration begins, it continues to worsen
until rust disintegrates the metal. Steel beams, columns, and
metal supports \in the old plant continued to deteriorate after
the new plant w~s built. In 1987 a conveyor belt collapsed in
the old plant because of deterioration of steel members.
8. The collapse of the conveyor belt in 1987 shut down
production and caused Freeman to recognize that it needed to
rehabilitate or replace weakened and deteriorated steel members
in the old plant. Rehabilitation work moved slowly. In 1989
Freeman engaged Roberts and Schaefer to evaluate the structural
condition of the old preparation plant and to make
recommendations for its rehabilitation. R & S was chosen because
it had designed the old preparation plant, built it, and knew the
loads the members could carry and had expertise in diagnosing
defective steel members and how to repair them. It also had
built the new preparation plant.
9. After inspecting the old preparation plant, R & S
submitted a report to Freeman on November 30, 1989, prepared by
Engineer Paul G. Meifert. The report is entitled uReport to
Determine Structural Integrity of Existing Coal Preparation Plant
for Freeman United Coal Company Orient No. 6 Mine." Govt.
Exh. 3.
10. The R & S report found many structural hazards. It
stated that part of the floor at elevation 454 uis beginning to

44 0

collapse and has been roped off above and below per [the R & s
engineer's] request. Obviously this area needs attention." An
abandoned coal conveyor above elevation 468 was "on _the verge of
collapse . . . (which would be] life threatening" (p.4).
Vertical bracing was "virtually nonexistent due to deterioration
and to field removal for access. Bracing should be brought back
to original as much as possible . . . . " p.4. The report called
for "immediate attention" to "beams and columns where holes exist
or can be punched out with a hammer." p.3. It also stated that
"many beams and columns were tested by hammer blows to determine
the extent of rust and deterioration" and that, "although many
sections were reduced due to rust scale. . . ., in the majority of
cases, enough material remains to carry reduced loads." Emphasis
added; p.2. To reduce the loads, heavy equipment and other
materials were to be removed from a number of floors.
11. The R & S report included the following cautionary
notice: "Although the structure appears to be sound in general
these findings '-,are based only upon a visual inspection. No load
tests or calculations were performed to determine actual
stresses. Extent of deterioration and actual safety of structure
cannot be determined without extensive measuring, testing, and
calculation" (p.5).
June 1993 Collapse of Elevated Walkway
12. On June 8, 1993, Mr. Steve Stanley, the surface manager
of the mine, led a crew of two supervisors and two miners to work
on a coal belt on the first floor (elevation 454 on the R & s
drawing). To gain access to the belt, the men were standing on
an elevated walkway parallel to the belt, 17 feet above a
concrete floor . Mr. Stanley left to get a bolt. Shortly after he
left, the walkway suddenly collapsed and the four men fell to the
concrete floor amidst jagged and broken steel and concrete
debris . They were severely injured.
13. MSHA began an investigation on June 9. On June 10,
Engineers Terence Taylor and Dan Mazzei, from MSHA's Safety and
Health Technology Center, inspected the fallen walkway as well as
the general plant.
14. Mr . Taylor is a professional engineer and has both a
bachelor's and a master's degree in civil engineering with

441

specialization in structural engineering. He is a member of the
American Society of Civil Engineers. Mr. Taylor's supervisor is
Dan Mazzei, who has a bachelor's degree in civil e~gineering and
a master's degree with an emphasis on water resources.
15. The Tech Support team observed widespread deterioration
of steel members with some remedial work done to some of the
columns in the basement. They did not inspect every steel
member, but they looked at the supports for the walkway and found
widespread corrosion and deterioration of structural members. At
the accident site they observed that members that were still
dangling or touching the ground were severely corroded. Much of
the cross section was missing on some of the dangling members.
The failed members were badly deteriorated and one failed beam
was almost totally deteriorated.
16. The area where the collapse occurred is delineated by
column lines E and F in the north- south direction and 4 and 5 in
the east-west direction of the original plant drawings. These
four columns are the corners of a 5 by 20 foot bay. The slab
that collapsed was supported at its north and south ends by two
wide flange beams, along its east edge by a wide flange beam, and
its west edge by six-inch wide channel sections. The center of
the slab was supported by a wide flange beam and the quarter
points by light beams. The three intermittent support beams had
fallen along with the west and east edge supports. The north and
south beams were still in place. The west or east edge support
was the first support to fail. Most likely the beam on the east
edge collapsed first, transferring the load to the west edge,
shearing the channel sections and bending down the three
intermittent beams . The east edge beam was almost completely
deteriorated with many holes and extensive corrosion. There was
extensive rust on the 20 foot long wide flange beam supporting
the edge of the slab. The bottom flange and parts of the web
were deteriorated, reducing the load-carrying capabilities of the
section. In the collapsed bay, the connection between the east
edge beam and the column was still intact on the column,
indicating that the beam sheared right through its cross section.
17. Along the same column line that failed, in the bay to
the south of the area of collapse, Mr. Taylor and Mr. Mazzei saw
a steel member that was identical in section and dimensions to
the beam that failed on June 8, 1993. This member was still in

44 2

place, but deterioration holes could be seen plainly. This
member is the subject of Govt. Exh. No. 6 and was the support for
the walkway farther south of the point of collapse. The unsafe
condition of this beam was similar to that of the beam that
failed on June 8.
18. The failure on June 8 was caused by excessive corrosion
reducing the section-carrying capacity at the edge supports where
the shear load was the highest and where it ultimately failed.
19. Before the accident on June 8, the deteriorated steel
members supporting the walkway section that collapsed were
observable from the floor below, and were visibly in bad repair.
20. Some beams under the walkway in other bays were also
visibly in bad repair. The walkway presented numerous hazards of
steel corrosion and deterioration.
21. A numb~r of beams had holes in them and were rusted and
twisted and deteriorated. MSHA inspector Charles Conaughty
observed instances where a hammer struck against a structural
member traveled through the member.
22. Government Exhibits 4,5, and 11 show the area where the
June 8 accident occurred. Exhibit 4 shows the beam that failed
under the east side of the walkway. Exhibit 5 shows part of the
material that was still hanging from the collapsed walkway.
Exhibit 11 shows deteriorated vertical bracing that was at the
end of the row of columns in the same row in which the collapse
occurred.
23. Government Exhibits 6, 7, 8, 9 and 10 show other areas
of deterioration adjacent to or near the accident site. The beam
shown in Exhibit 6 was in the adjacent or a nearby bay just south
of the area that fell, and was in the same column line · (column
line 4) in which the accident occurred. The steel members that
failed would have been exposed to the same corrosive elements as
the beam depicted in Exhibit 6.
24. In 1989, when Freeman was removing the floor area
described in the R & S report (defined by column lines A to F and
4 and 5), Freeman personnel were within close visual range of the
steel members of the walkway section that failed on June 8, 1993.

443

25. As of the date of the collapse, a number of areas in the
old plant still needed rehabilitation and repair work, including
the section that collapsed.
26. At the time of the collapse, Mr. Thomas J. Austin had
been the safety director of the mine since 1987. There were
three employees in the safety department. Mr. Austin's immediate
supervisor was Respondent Neal Merrifield. Mr. Austin is not an
engineer and has never taken any engineering courses.
27. Prior to the accident, Mr . Austin never received any
instructions to have his safety employees look for holes in beams
and columns or perform tests with a hammer on any of the beams or
columns that supported walkways. Nor did he see or discuss the R
& S report before the accident. He first learned about the R & S
report during the investigation following the walkway collapse.
28. In 1989, Mr. Steve Stanley was the assistant mine
manager of th~ Orient No. 6 mine. Mr. Stanley became surface
manager of the · mine in 1991. He is not an engineer, but he was
called upon to direct rehabilitation work and repairs in the old
plant. He made decisions on a day to day basis as to where to
assign employees . Prior to the accident, no one directed Mr.
Stanley to put more people to work in the old plant or to give
any priority to checking beams and other metal supports that held
up the walkways. Nor did anyone instruct Mr. Stanley to have
employees look for holes in beams and columns or perform tests
with a hammer on any beams or columns that supported walkways.
29. Mr. Stanley had never seen and was not given a copy of
the R & S report until after the accident. No one discussed the
R & S report with Mr. Stanley until after the accident.
30. On June 8, 1993, when Mr. Stanley d~. rected four
employees to work on the conveyor belt by standing on· the
walkway, he had no knowledge of the R & S report or the dangers
observed in the report.
Respondent James Yancik
31. At all relevant times, Respondent James Yancik was
manager of quality control and plant maintenance and the

444

preparation engineer. Mr. Yancik has a B.S. degree in mining
engineering and is a member of the Society of Mining Engineering.
One of his specialties is structural analysis.
32. Mr. Yancik accompanied Engineer Paul Meifert of the R &
S Company during Mr. Meifert's inspection of the old preparation
plant in 1989. During their inspection they used three tools: a
chipping hammer, a wire brush, and a hammer. They did not take
core samples. They were visually looking at steel members and in
some cases they would scale and test steel members.
33. Mr. Meifert and Mr. Yancik observed a crack in a floor
that was beginning to sag. Mr. Meifert identified the floor as
dangerous and had it roped off.
34. When part of the. floor at elevation 454 was removed,
Mr. Yancik reviewed the work. During the time he was conducting
inspections for Mr. Mullins, he remembered seeing several beams
in a condition like that of the beam in Govt. Exh . No. 6. At the
hearing he stated that some of these were possibly not repaired.
35. Before accompanying Mr. Meifert, Mr. Yancik had
personally inspected the old preparation plant. In 1987, when
starting the initial rehabilitation program, Mr. Yancik spent
eight hours a day there, five days a week, for several weeks.
Mr. Yancik did not continue that frequency of inspections after
the R & S report . During the period from the issuance of the R &
S report (November 30, 1989 ) until the walkway collapse on June
8, 1993, Mr. Yancik conducted inspections of the old plant "on a
periodic basis" depending upon his "available time." His
inspections were not frequent.
36. Mr. Yancik read the R & S report several times and was
very familiar with its contents. He received his COFJ of the R &
s report from Mr. Mullins, vice president of operations.
37. Before the accident, Mr. Yancik had seen holes in some
beams like those that were shown on figures 7 and 9 in the R & S
report but never directed anyone to repair or rehabilitate those
beams. Mr. Yancik did not personally set priorities for the
rehabilitation or repair of the old plant.

445

38. Mr. Yancik had "expertise in structural analysis." He
agreed that when an engineer sees a corroded hole in a steel beam
he views it as a potential hazard.
Respondent Neal Merrifield
39. At the time of the collapse in June 1993, Mr. Merrified
was vice president of operations. He is a mining engineer.
Prior to becoming vice president of operations, he had been the
mine superintendent . As vice president of operations, his
responsibilities included safety of the operations of the mine
facilities. Mr. Yancik reported to Mr. Merrifield.
40. Mr. Merrifield read the R & S report and, as an
engineer, he understood it. After 1991, when he became vice
president of operations, Mr. Merrifield set priorities for the
rehabilitation work in the old plant. Mr. Merrifield approved
the mine's budget and had responsibility for the budget for the
old plant. Although he did not have final authority on the
budget, Mr. Merrifield's budget recommendations were not normally
overruled by his supervisor.
41. The chief engineer of the mine reported to
Mr. Merrifield. As supervisor of the engineering department,
Mr. Merrifield approved the time spent on rehabilitation efforts.
Along with other mine management and the corporate officers,
Mr. Merrifield approved the allocation of dollars for those
rehabi litation ·e fforts.
42. Mr. Merrifield approved the engineering department's
decisions regarding priorities for the rehabilitation of the old
plant. The engineering department reported to him regarding its
recommendations for sequencing repair work and to get
authorization to contract out rehabilitation work. When the
engineering department wanted items beyond the budget, it would
present its request to Mr. Merrifield and he would approve or
disapprove it.
43. Mr. Merrifield had input into the final report in
response to Mr. Mullin's memorandum of January l, 1990
(Govt. Exh. 26 ) including recommendations regarding replacement
of bracing as recommended by the R & S report. Mr . Merrifield

446

attended a February 1, 1990, meeting with Mr. Mullins regarding
corrective actions to be taken.
44. Mr. Merrifield did not give Mr. Jim Hess, his successor
as mine superintendent, a copy of the R & s report.
Mr. Merrifield also did not give Mr. Steve Stanley, surface
manager, a copy of the R & S report. Nor did he give a copy of
the report to the mine safety director.
45 . Mr. Mullins sent a copy of his letter regarding
Mr. Yancik's job responsibilities (Govt. Exh. 18 ) t o Mr.
Merrifield. A copy of an October 26, 1988, document regarding
inspection of all belt supporting structures on an annual basis,
to visually assess the competency of the structural members , went
to Mr. Merrifield. Mr . Yancik sent a copy of a memorandum of May
4, 1988 (Govt. Exh. 20 ) , to Mr. Merrifield . A copy of a
memorandum of December 17, 1988 (Govt. Exh. 21), regarding areas
that required immediate attention and reporting that the second
floor was badly .deteriorated, went to Merrifield.
46. Mr. Yancik sent copies of a memorandum of January 29,
1990 (Govt. Exh. 22), regarding the R & S report, and a
memorandum of August 13, 1990 (Govt. Exh. 23), regarding his
inspection of the old plant, to Mr. Merrifield. Mr. Yancik also
sent a memorandum of October 2, 1990 (Govt. Exh. 24 ) , in which he
informed Mr. Merrifield that "no definitive plan has been
formulated to correct the deficiencies" in the old plant.
DISCQSSIQN WITH PVRTHER PINPINGS. CONCLUSIONS
I

RESPONDENTS' CHALLENGE OF THE REGULATION
On June 8, 1993, a large section of an elevated walkway
about s by 20 feet -- suddenly collapsed. The four miners
standing on it fell 17 feet to a concrete floor amidst jagged and
broken steel and concrete debris. They were severely injured.
The Secretary alleges that Respondents violated 30 C.F . R §
77.200, which provides:

447

Surface installations; general
All mine structures, enclosures, or other facilities
(including custom coal preparation) shall be maintained in
good repair to prevent accidents and injuries to employees .
Respondents challenge the regulation as being vague and
ambiguous.
A safety standard must provide adequate notice of the
conduct it prohibits or requires, so that the mine operator or
other affected persons may act accordingly. Southern Ohio Coal
Company, 14 FMSHRC 978, 983 (1992 ) . The ''appropriate test is not
whether the operator had explicit prior notice of a specific
prohibition or requirement, but whether a reasonably prudent
person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific
prohibition or requirement of the standard." Ideal Cement Co.,
12 FMSHRC 2409, 2416 (1990) .
In U.S. Steel Mining Co., 14 FMSHRC 973, 974 (1992 ) , the
Commission affirmed a decision in a § 77.200 case, noting the
judge's holding that "the primary purpose of § 77.200 was to
assure the physical and structural integrity of surface coal
preparation facilities . . . . " I find that the regulation gives
sufficient notice of the safety conduct required. The plain
language of the regulation means that surf ace structures and
facilities must be maintained in good repair relative to safety.
In dictionary terms, "maintenance" means "The labor of keeping
something (as buildings or equipment) in a state of repair or
efficiency: care, upkeep . . . [p]roper care, repair, and keeping
in good order . . . (t]he upkeep, or preserving the condition of
property to be operated." See Webster's Third New International
Dictionary. Unabridged 1362 (1971); A Dictionary of Mining.
Mineral. and Related Terms 675 (1968); and Black's Law Dictionary
859 (5th ed. 1979).
II
RULING ON RESPONDENTS' MOTION TO DISMISS
At the end of the Secretary's case, the individual
Respondents moved to dismiss the§ llO (c ) charges. The judge

440

took the motion under advisement to be ruled upon in the final
decision. Respondents then presented evidence on all matters.
The Commission's Rules of Procedure, the Administrative
Procedure Act and the Mine Act are silent as to the standards
that apply to motions to dismiss at the close of an opposing
party's case-in-chief. Accordingly, it is appropriate to consult
the Federal Rules of Civil Procedure for guidance. Basic
Refractories, 13 FMSHRC 2554, 2558 (1981).
When a party moves for dismissal at the close of the
opponent's case, the judge has discretion to take the motion
under advisement. Fed. R. Civ. P. 52(c), "Judgment on Partial
Findings," provides, in pertinent part:
If during a trial without a jury a party has been fully
heard with respect to an issue . . . , the court may enter
judgment as a matter of law against that party on any claim
. or the court may decline to render any judgment until
the close of all the evidence.
The notes of the Advisory Committee on Rules to Fed. R. Civ.
P. 52(c) specify that a court has discretion to enter no judgment
prior to the close of all the evidence. Clifford Meek y. ESSROC
Cox:poration, 15 FMSHRC 606, 615 (1993). Here, as there, the
judge exercised that discretion. In making that determination, a
court is within its prerogative to weigh all the evidence,
resolve any conflicts in it, and decide for itself where the
preponderance lies. Local Union 103 y. Indiana Construction
Corp., 13 F.2d 253, 257 (7th Cir. 1994).
In his dissent on other grounds in Mathies Coal Company,
S FMSHRC 300, 307 {1983), Commissioner Lawson stated that "a
trial court's reservation of ruling on a motion for involuntary
dismissal [under 4l{b) Fed. R. Civ. P., the predecessor to 52(c)]
is, in effect, a denial of the motion." The Commissioner
concluded that: "Respondent had the choice of proceeding or
standing on its motion. By presenting evidence, Respondent
waived its right to appeal from the judge's 'denial' of its
motion."

449

Here, Respondents presented evidence following the judge's
reservation of a ruling. The motion is denied and the case will
be decided upon all the evidence.
III
DECISION ON THE MERITS
The first question is whether the walkway was "maintained
in good repair to prevent accidents and injuries" as required by
30 C.F.R. § 77.200.
Freeman contends that the old preparation plant had
undergone an extensive rehabilitation program to repair or
replace deteriorating steel columns and beams and that the
particular walkway section had not been observed as requiring
repairs.
This arg~ent fails because the steel supports that
collapsed were 'visibly badly deteriorated due to corrosion.
Also, a number of other steel members supporting the walkway were
visibly deteriorated due to corrosion. Under the R & S report,
"immediate attention" was required for "beams and columns where
holes exist or can be punched out with a hammer." Without
rehabilitation or replacement of the deteriorated members, the
walkway clearly was not being "maintained in good repair to
prevent accidents and injuries to employees." Freeman was
therefore in violation of 30 C.F.R. § 77.200.
The next question is whether Freeman was negligent in
failing to maintain the walkway in good repair. I find that it
was.
Freeman contends that it had started the rehabilitation
program in 1987 and in 1989 engaged the engineering firm (R & s·)
that built the plant to return to inspect the structural
condition of the plant and make recommendations. It states that
before the walkway collapsed it had taken corrective action on
the specific recommendations in the engineering firm's report and
was carrying out an ongoing inspection and repair program on
columns and beams in accordance with the engineering report.

4 50

However, the walkway collapse occurred more than three and a
half years after the R & S report, which had warned Freeman that
"immediate attention" must be given to "beams and columns where
holes exist or can be punched out with a hammer" and that "for
beams, holes near connecting and concentrated loads are
critical." Exh. G-3, p.3. The steel supports that collapsed
under the walkway were badly deteriorated and were plainly
visible before the accident.
In Alabama By-Products, 4 FMSHRC 2128, 2129 (1982) , the
Commission held:
[I]n deciding whether equipment or machinery is in safe or
unsafe operating condition, . . . the alleged violative
condition is appropriately measured against the standard of
whether a reasonably prudent person familiar with the
factual circumstances surrounding the allegedly hazardous
condition,. including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective
action.
The "reasonably prudent person" test applies to engineers
as well as to laymen. This case focuses upon the responsibility
of engineer-supervisors to protect the safety of miners using an
elevated walkway. Miners and supervisors who are not engineers
are not expected to know the structural integrity of steel beams
and columns. To a layman, including a supervisor who is not an
engineer, deteriorated or corroded steel beams 14 feet above the
floor may not seem dangerous if the company engineers indicate
that they have carefully checked the structural condition and
that the beams are safe. However, the walkway suddenly collapsed
because of deteriorated steel beams. The question raised is
whether a reasonably prudent engineer would have inspected and
repaired or replaced the beams before they collapsed.
The Respondent engineer-supervisors were fully aware of the
history of deterioration of steel members in the old plant,
including a major collapse of a conveyor belt in 1987 because of
deteriorated steel members, and the 1989 R & S report that warned
of the need to give "immediate attention" to "beams and columns
where holes exists or can be punched out with a hammer." I find
that a reasonably prudent engineer having such knowledge and
being familiar with the mining industry would have performed or

451

required careful and frequent inspections of the steel beams of
the elevated walkways including hammer tests of suspicious
looking beams. By the exercise of reasonable care, · the failed
beams and steel supports could have been detected and corrected
to prevent the collapse that occurred on June 8, 1993. I also
find that, before the walkway collapse, a reasonably prudent
engineer who observed the other deteriorated steel members later
found by the MSHA engineers would have repaired or replaced them.
I now turn to the issue of whether the individual
Respondents are l i ab l e as corporate agents under§ ll O( c ) of the
Act. This section provides:
whenever a corporate operator violates a mandatory health or
safety standard or knowingly violates or fails or refuses to
comply with any order issued under this Act or any order
incorporated in a final decision issued under this Act,
except an order incorporated in a decision issued under
subsection lOS (c ) , any director, officer, or agent of such
corporatio·n , who knowingly authorized, ordered, or carried
out such violation, failure, or refusal shall be subject to
the same civil penalties, fines, and imprisonment that may
be imposed upon a person under subsections (a) and (d) .
The individual Respondents were agents of the corporate
Respondent within the meaning of § llO(c ) . Respondent Neal
Merrifield was vice president of operations at the time of the
collapse of the walkway. He is a mining engineer. Before
becoming vice president of operations he had been mine
superintendent. As vice president of operations, his
responsibilities included safety of the operations of the mine
facilities . The safety and engineering departments reported to
him. Respondent James Yancik reported to Mr. Merrifield.
Mr. Yancik was manager of quality control and plant m~intenance
and the preparation engineer at the subject mine. He is a mining
engineer with a specialty in structural analysis.
In warren Steen Construction. Inc. and warren Steen,
14 FMSHRC 1125, 1131 (1992), the Commission held that, "In order
to establish§ llO(c) liability, the Secretary must prove only
that an individual knowingly acted, not that the individual
knowingly violated the law . " In Kenny Richardson y . Secretary of
Labor, 3 FMSHRC 8, 16 (1981), aff'd, 689 F.2d 632 (6th Cir 1982),

452

cert. denied, 461 U.S. 928 (1983), the Commission defined the
term "knowingly" as follows:
"Knowingly," as used in the Act, does not have any meaning
of bad faith or evil purpose or criminal intent. Its
meaning is rather that used in contract law, where it means
knowing or having reason to know. A person has reason to
know when he has such information as would lead a person
exercising reasonable care to acquire knowledge of the fact
in question or to infer its existence .
A "knowing" violation does not require a showing that the
corporate agent "willfully" violated the Mine Act or safety
regulations. Rather, the Commission held that:
If a person in a position to protect employee safety and
health fails to act on the basis of information that gives
him knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a manner
contrary t o the remedial nature of the statute. [.Id . ]
The individual Respondents knew as early as 1984 that the
steel members in the old preparation plant were deteriorating.
After the new plant was built in 1984, the steel members in the
old plant continued to deteriorate. In 1987, a conveyor belt
collapsed because of deteriorated steel members. The collapse
shut down production .a nd caused Freeman to recognize that the old
plant must be rehabilitated. However, progress toward
rehabilitation was slow. In 1989, Freeman engaged the
engineering firm (R & S) that built both plants to return to
evaluate the structural condition of the old plant and make
recommendations. After Freeman received the R & S report
(November 30, 1989 ) , rehabilitation efforts still moved slowly.
More than three and a half years after the report, the .cited
walkway was still in bad repair, as evidenced by the collapse of
the walkway on June 8, 1993, and the deterioration of other steel
members disclosed by the MSHA investigation after the walkway
collapsed. The three and a half years from the R & S report to
the walkway collapse represents about 1,600 workshifts during
which miners were exposed to the hazards of the elevated walkway.
Respondents had a legal duty to ensure that the elevated
walkway was "maintained in good repair to prevent accidents and

4 53

injuries to employees." 30 C.F.R. § 77.200. The R & s report
put them on notice that "immediate attention" was needed to
repair or replace all "beams and columns where hole·s exist or can
be punched out with a hammer. For beams, holes near connections
and concentrated loads are critical."
The individual Respondents were agents of the corporate mine
operator and were qualified engineers in positions to protect the
safety of miners who used the elevated walkway. Mr. Merrifield
prioritized the rehabilitation sequences to carry out the
recommendations in the R & S report and Mr. Yancik had the
responsibility to inspect the steel members for compliance with
the criteria in the R & S report. They knew that the steel
members supporting the elevated walkway needed to be inspected
carefully and frequently in order to give "immediate attention"
to "beams and columns where holes exist or can be punched out
with a hammer," as warned by the R & S report. This required
hammer testing of any suspicious beams. It is clear that the
beams that failed on June 8, 1993, were more than suspicious, but
had not been properly tested and remedied before the collapse.
Mr. Yancik testified that he never received any written
report that told him or caused him to believe that the plant was
not being maintained in a safe condition or that the walkway that
collapsed was dangerous. However, Mr. Yancik was the individual
charged with making inspections of the plant to create those
kinds of reports. In addition, he was aware of the 1987 collapse
of the conveyor belt and of the clear warnings in the R & S
report.
Mr. Yancik acknowledged that it would have been reasonable
to inspect the walkway beams after Freeman removed the floor at
elevation 454. When asked why Freeman did not replace any of the
steel members under the walkway, Mr. Yancik concluded, that the
structural condition was not bad enough to require remedial
attention . Yet the walkway failed because of advanced
deterioration and badly corroded steel beams .
Mr. Merrifield was a decisionmaker responsible for safety of
operations of the old preparation plant from the time he was mine
superintendent and later vice president of operations. He had a
thorough knowledge of the history of deterioration of the steel
members, including the 1987 collapse of the conveyor belt and the

454

1989 R & S report . He made monetary decisions regarding
rehabilitative efforts in the old plant. With his knowledge of
the R & S report, and his qualifications as an engineer, he had a
duty to heed the warnings of the R & S report and see to it that
beams, col umns, and metal supports for the elevated walkway were
carefully and frequently inspected so that "immediate attention"
would be given to any beams or columns "where holes exist or can
be punched out with a hammer." He had the authority to provide
copies of the R & S report to the safety director and surf ace
manager (who both reported to him) and to discuss it with them.
However, he failed to do so.
When the surface manager, Mr. Stanley, led a crew of four
men onto the walkway on June 8, 1993, he had no knowledge of the
R & S report and its warning that "immediate attention" must be
given to "beams and columns where holes exist or can be punched
out with a hammer." Since he was not an engineer , and had no
traini ng in structural analysis, he had to rely upon the
individual Respondents to see that the walkway was kept in a safe
condition. Respondent Merrifiel d prioritized the rehabilitation
sequences to carry out the recommendations of the R & S report,
and Respondent had the responsibility to inspect the steel
members for compliance w~th the criteria spelled out in the R & S
report. Both were qualified engineers who knew the significance
of the dangers found in the report, but they did not convey them
to Mr. Stanley or the mine safety director.
Had they informed Mr. Stanley, the surface manager, of the
need t o look out for "beams and columns where holes exist or can
be punched out with a hammer," Mr. Stanley would have had crucial
safety information when he assigned four men to work with him on
the walkway that collapsed . This would have alerted him to
immediately report any beams "where holes exist or can be punched
out with a hammer," and may have alerted him to look at the beams
below before placing a concentrated live load on the walkway.
Had he looked at the beams, he would have seen the deterioration
and corrosion that the MSHA engineers saw after the collapse of
the walkway. This probably would have alerted him to call the
individual Respondents for an evaluation of the safety of the
walkway.
Respondents argue that a number of MSHA inspectors had
inspected the old plant before the collapse in June 1993, but did

455

not cite the walkway as being unsafe. However, MSHA inspectors
are not engineers, and the dangers of the walkway were such that
only specially qualified persons, such as engineers, could fully
understand the hazards involved in the context of the R & s
report. Moreover, in Raymer v. United States, 660 F.2d 1136,
1143 (6th Cir. 1981), cert. denied. 456 U.S. 944, 102
S. Ct. 2009 (1982), the court held that MSHA inspectors do not
undertake to perform a duty owed by the mine operator to its
employees . The court rejected the idea that responsibility for
mine safety is shifted to the federal government.
In Joseph B. Necessary, 6 FMSHRC 2567 (1984), Commission
Judge Koutras found that an agent with 45 years of experience in
the construction business who was supervising the repair of a
mine refuse storage bin that collapsed, killing three miners,
violated 30 C.F.R. § 77.200. Judge Koutras found that the
collapse was caused by a misalignment in the support columns and
that the supervisor was aware of the misalignment. In affirming
the citation, Judge Koutras found that, in light of the
supervisor's e~erience, "he knew or should have known that the
misalignment posed a serious potential safety hazard requiring
immediate correction."
I find that Respondents Merrifield and Yancik "knowingly
authorized, ordered, or carried out" a violation of 30 C. F .R.
§ 77.200, within the meaning of § llO(c) of the Act, by failing
to take necessary steps within their competence and authority to
see that the cited walkway was "maintained in good repair to
prevent accidents and injuries to employees." Miners and
supervisors who are not engineers cannot be expected to judge the
structural integrity of steel beams and columns. However, when a
mine operator engages the engineering firm that constructed a
building to return to evaluate its structural condition after
years of corrosion of steel members, it is incumbent upon the ..
operator's own engineers to exercise due diligence and reasonable
care in implementing the builder's repair and rehabilitation
recommendations. The individual Respondents patently failed to
do so with respect to the walkway that collapsed on June 8, 1993.
The collapse was not an unforseen accident. There had
already been a major collapse in 1987. As rehabilitation work
progressed in the old plant, beams that were repaired or replaced
were painted yellow. As of the date of the collapse, yellow

456

horizontal beams were in areas where weight had been removed from
the floor and where holes had been covered to prevent falls
through the floor. Apparently there were no yellow beams
supporting the elevated walkway. The MSHA engineers found a
number of beams and supports that were deteriorated, similar to
the beams that collapsed on June 8, 1993. This indicates that
the walkway was in overall bad repair, that the collapse on June
8 could readily have occurred in many dangerous places in the
walkway, and that a concentrated live load (several miners) was
critical, as predicted by the R & S report.
Thi s was not a situation in which a claim of "unforseen
accident" could be reasonabl y asserted. Rather, it was a
col l apse ready to happen .
I find that the violations of § 77.20 0 by the individual
Respondents were due to high negligence and their negligence is
imputed to the c orporation. In reaching this conclusion, I have
considered a n~mber of factors. These include: their expert
knowledge as engineers of the history of deterioration of steel
members in the old plant, the 198 7 collapse of the conveyor belt,
and the clear notice in the 1989 R & S report of the steps
necessary to maintain the elevated walkway in good repair; their
failure to heed the R & S report by taking necessary action to
inspec t and repair the walkway that collapsed; their failure to
advise the safety director and the surf ace manager of the need to
look out f o r holes and weak spots in the beams under the walkway;
and the great risk to the miners who regularly used the elevated
walkway, including the four miners who were injured .
\

IV
CIVIL PENALTIES

The key to the Mine Act is prevention of mining hazards by
compliance with safety and health standards. This requires
diligence in monitoring changing mine conditions to see that the
mine is in compliance.
As found in the Discussion, Freeman and the two individual
Respondents were highly negligent in failing to maintain the
walkway in good !repair to prevent accidents and injuries to
employees. Their violations of § 77.2 00 are aggravated by the

457

fact _that they had a supervisory and professional responsibility
to protect laymen who were dependent upon their expert knowledge.
In Roy Glenn, 6 FMSHRC 1583, 1587 (1984), the Commission
repeated its holding in Kenny Richardson. supra, that "a
supervisor's blind acquiescence in unsafe workings would not be
tolerated," and that "supervisors . . . could not close their
eyes to violations, and then assert lack of responsibility for
those violations because of self-induced ignorance." Similarly,
in passing the 1977 Mine Act, Congress was particularly concerned
over the high number of mining injuries and fatalities that
resulted from inadequate supervision and hazardous "conditions
reasonably within the power of management to prevent." H.R. Rep.
No. 312, 95th Cong., 1st Sess. 4 (1977), reprinted in Legislative
History of the Federal Mine Safety and Health Act of 1977, at
360 (1977) .
Section llO(i) of the Act provides six criteria for
assessing civil penalties. Considering each of the criteria, I
find that Freeman is a large operator, the civil penalties in
this Decision will not affect its ability to continue in
business, Freeman has an average compliance history for its size,
and after the citation was issued the three Respondents made a
good faith effort to achieve compliance with 30 C.F.R. § 77.200 .
The three Respondents violated that section, as found above. The
gravity of the violations was high and the violations were due to
high negligence on the part of each Respondent.
Considering all of the criteria for civil penalties in
§ llO (i) of the Act, I find that the following civil penalties
are appropriate for Respondents' violations of § 77.200:
Respondent Freeman United Coal Mining Company, a civil
penalty of $10,000.
Respondent Neal Merrifield, a civil penalty of $5,000.
Respondent James Yancik, a civil penalty of $4,000.
The penalties are higher than the penalties proposed by the
Secretary because of Respondents' aggravated conduct in ignoring
the clear steps needed to protect the safety of the miners.
Through their high negligence in failing to replace defective

45 8

beams, the walkway was allowed to deteriorate to the point of a
sudden collapse causing severe injuries.
CONCLUSIONS or LAW

1. The judge has jurisdiction.
2. Respondents violated 30 C.F.R.

§

77.200 as found above.

ORDIR

1. Citation No. 3537447 is AFFIRMED.
2. Within 30 days of the date of this Decision : Respondent
Freeman United Coal Mining Company shall pay a civil penalty of
$10,000; Respondent Neal Merrifield shall pay a civil penalty of
$5,000; and Respondent James Yancik shall pay a civil penalty of
$4,000 .

t,J;a......._
f"~v~
William Fauver
Administrative Law Judge
Distribution:
Christine M. Kassak, Esq . , Office of the Solicitor, U.S.
Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago ,
IL 60604 (Certified Mail )
Richard R. Elledge , Esq., Gould & Ratner, 222 N. LaSalle St .,
Suite 800, Chicago, IL 60601 (Certified Mail)
Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania
Ave., NW., Washington, DC 20004-2595 (Certified Mail)
/lt

459

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

MAR 2 9 1996
AMAX COAL COMPANY,
Contestant

v.

CONTEST PROCEEDING
Docket No. LAKE 95-403~R
Order No. 4264060

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

Wabash Mine
Mine ID 11-00877
DECISION

Appearances:

R. Henry Moore, Esq., Buchanan Ingersoll
Professional Corp., Pittsburgh, Pennsylvania for
Contestant;
\ Christine M. Kassak, Esq., Office of the
'Solicitor, U.S. Dept. of Labor, Chicago, Illinois
for Respondent.

Before:

Judge Melick

This case is before me pursuant to Section 105{d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c., Section
801 et seq., the "Act," and upon the Notice of Contest filed by
the Amax Coal Company {Amax) challenging a Nfailure-to-abate"
order issued by the Secretary of Labor under Section 104{b) of
the Act.
At 11:30 on the morning of September 11, 1995, Inspector
Robert Stamm of the Department of Labor's Mine Safety and Health
Administration {MSHA) issued Citation No. 4264057 to Amax under
Section 104(a) of the Act alleging a violation of the standard at
30 C.F.R. § 75.400 and charging as follows:
An accumulation of coal and coal fines was present
around the tail area of the #3 main West conveyor belt
and extending 60 feet outby. The coal measured 4 to 24
inches in depth and was also present inby the tail and
in the #34 crosscut with side. The belt was rubbing the
coal and heat was present on the tail structure. Also
float coal dust (black in color) was present on the mine
floor from #2 to 36 crosscut, including the adjacent
crosscuts.
The cited standard provides that Ncoal dust, including float
coal dust deposited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned up and not be
permitted to accumulate in .active workings, or on electric
equipment therein. "
460

The citation also provided that these violative conditions
were to be abated by 4:00 p.m. that same day. No representative
of the secretary appeared at the stated time, however, to
determine whether the conditions had, in fact, been ·abated.
Three days later, around 9:30 on the.morning of September 14,
1995, the issuing inspector returned to the scene of the cited
violation and found that an accumulation existed within the same
area as originally cited in Citation No. 4264057. The Secretary
acknowledges that he is unable to prove that the accumulated
material found on September 14 was any part of the original
accumulation cited on September 11. 1 In any event, Inspector
Stamm issued an Mextension of time" for abating the condition he
found at 9:30 a.m. in a Msubsequent action" form issued at 10:30
that morning. That form states as follows:
A portion of the coal was removed from the tail area
and for 40 feet outby of the #3 main West conveyor belt.
An extension of time is being granted to remove the
remaining coal from the tail area and 20 feet outby.
Inspector Stamm returned to this location at 12:25 p.m. on
September 14 and, finding an accumulation, issued the section
104(b) order at. bar. The order charges in relevant part that
#(a]fter a reasonable termination due date and an extension of
time, coal was still present under the tail area and extending 20
feet outby the #3 main West belt conveyor." This order was
terminated 40 minutes later at 1:05 p.m.
Amax apparently does not dispute that the accumulations
found by Inspector Stamm on September 11, 1995, constituted a
violation of the cited standard but maintains that those
accumulations had been removed, thereby abating the violation
before the accumulation found on September 14 was created. Amax
argues, therefore, that the September 14 Section 104(b) order was
improperly issued.
When issuing a citation under Section 104(a) of the Act, the
inspector must udescribe with particularity the nature of the
violation" as well as uf ix a reasonable time for abatement of the
violation". I~ addition, Section 104{b) of the Act provides as
follows:

1

The Secretary, as any litigating party, is bound by his
admissions at trial and cannot retract those admissions by simply
making contrary statements in a post-hearing brief. Any such
contrary statements are accordingly rejected. If, indeed, it was
subsequently discovered that the admissions were factually
incorrect, the appropriate remedy is by motion for a new trial or
similar motion stating appropriate grounds for relief.

461

If, upon any follow-up inspection of a coal or other mine,
an authorized representative of the Secretary finds (1) that
a violation described in a citation issued pursuant to
subsection (a} has not been totally abated within the period
of time as originally fixed therein or as subsequently
extended, and (2) that the period of time for the abatement
should not be further extended, he shall determine the
extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such mine
or his agent to immediately cause all persons, except those
persons referred to in subsection (c), to be withdrawn from,
and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that
such violation has been abated.
When the validity of a section 104(b) order is challenged by
an operator, the Secretary bears the burden of proving that the
violation described in the underlying citation has not been
abated within the time originally fixed or as subsequently
extended. Mid Continent Resources, Inc., 11 FMSHRC 505, 509
(April 1989) In that case the Commission specifically held that
the Secretary establishes a prima facie case that a section
104(b) order fs valid by proving by a preponderance of the
evidence that the violation described in the underlying section
104(a) citation existed at the time the section 104(b) withdrawal
order was issued. The operator may, however, rebut the prima
fac i e case by showing that the violative condition described in
the sec t ion 104(a) citation had been abated within the time
period fixed in the c itation, but had recurred. See also Mettiki
Coal Corp., 13 FMSHRC 760, 765 (May 1991).
While the Secretary acknowledges that he cannot prove that
any part of the coal accumulation found on September 11
continuous ly existed until September 14, under the Mid Continent
decision he is apparently not required to prove that the original
violative condition continuously existed until the section 104(b}
order was issued. In any event, in this case the operator has
produced sufficient credible evidence to show that the original
accumulation cited in the section 104(a) citation had been
cleaned prior to the issuance of the extension and order on
September 14. In this regard it is undisputed that Foreman
Thompson assigned miners to clean the cited area after the order
was issued on September 11 and that miners were continuing to
clean at 3:00 p.m. when Thompson left the section. After the
initial cleanup, the mine examiners made no entries in the
examination book concerning an accumulation for the afternoon
shift on September 11 or the following midnight shift on

462

September 12 (R-25, pp. 70, 72). 2
While the examiner for the
midnight shift noted in the •Remarks" column that the tail should
be cleaned, this was not reported as a •violation or . hazardous
condition" and on the next shift, the day shift for September 12 ,
no condition concerning accumulations or needing cleaning in the
area of the citation (tail area plus 60 feet) was noted
(R-25, p. 74). on the September 12 afternoon shift it is noted
on the record books that the tail to so feet outby needed .to be
cleaned and this was addressed on the next shift {Tr. 57-8; R-25,
pp. 76-7). On the September 13 midnight shift, the tail and 75
feet outby were noted as needing cleaning and it appears to have
been cleaned on the next shift (R-25, pp. 78-9). This is
confirmed by the absence of a notation that the tail area needed
to be cleaned in the entry for the day shift on September 13
(R-25, p.80). On the September 13 afternoon shift, the mine
examiner noted that the tail and 100 feet outby needed to be
cleaned. This was addressed on the next shift, the September 14
midnight shift (Tr. 62, 64-5; R-24, pp. 2-3). In addition, the
examiner at the end of the midnight shift observed that the tail
area needed to be cleaned (not the 100 feet outby) (R-24, p.4),
and cleaning apparently occurred at the end of the shift.
(Tr. 63-4, 67-8).
Within the above framework I find that the operator has
established that the condition cited on September 11 had been
abated before the issuance of the order on September 14. Under
the circumstances, the order was not issued within the legal
parameters of Section 104{b) and must be dismissed. 3

2

Page references are to the copies of exhibits with
numbered pages as submitted with Respondent's brief.
3

The Secretary's conditional request in his post-hearing
brief for permission to amend his pleadings to modify the order
to a section 104(a) citation is rejected. A request to modify a
charging document is properly made by motion. See Wyoming Fuel
Co., 14 FMSHRC 1282, 1289 (August 1992) (Citing Cypress Empire
Corp., 12 FMSHRC 911, 916 (May 1990). It would also be
inappropriate to modify the 104(b) order to a 104(a) citation sua
sponte. The necessary findings and related criteria in issuing
104(a) citations are not set forth in the 104(b) order and the
operator has not been provided adequate notice. Consolidation
Coal Co., 4 FMSHRC 1791, 1794-6 (October 1982).

463

ORDER

Order No. 4264060 is hereby vacated •

.' 1!lvv~'~

I

!

Gary Me ick
Adminis rative L w Judge
703-756 6261
Distribution:
Christine M. Kassak, Esq . , Office of the Solicitor, U.S. Dept. of
Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
R . Henry Moore, Esq . , Buchanan Ingersoll Professional Corp.,
One Oxford Centre, 301 Grant Street, 20th Floor, Pittsburgh, PA
15219-1410 (Certified Mail)

\jf

464

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

MAR 2 9 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
REVIEW COMMISSION,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . PENN 93-51
A. C. No. 36-02713-03576
Frenchtown

POWER OPERATING COMPANY , INC.,
Respondent
DECISION ON REMAND

Appearances:

Linda Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner;
Tim D. Norris, Esq., and Farrah Lynn Walker, Esq . ,
Stradley, Ronon, Stevens & Young, Philadelphia,
Pennsylvania for Respondent.

Before: Judge Weisberger
On March 18, 1996, the Commission (18 FMSHRC
, Docket
No. PENN 93-51, {March 18, 1996)) issued a decision reversing my
initial finding that the cited violation of 30 C.F.R. § 1710{a)
{Citation No. 3709644) was not significant and substantial.
The Commission remanded for reassessment of the civil penalty.
I reiterate my initial finding that Respondent's negligence
was less than moderate (16 FMSHRC 591,607 {March 2994)). Taking
cognizance of the Commission's finding that the violation was
significant and substantial in that there was a reasonable
likelihood of an eye injury of a reasonably serious nature, and
considering the remaining factors set forth in Section llO{i) of
the Federal Mine Safety and Health Act of 1977, I find that a
penalty of $500 is appropriate.
.-..

I~
" ACC
vra~sberger

Administrative Law Judge

465

Distribution:
Linda Henry, Esq., Office of the Solicitor, U.S. · Department of
Labor, 3535 Market Street, Room 14480, Gateway Building,
Philadelphia, PA 19104 (Certified Mail)
Tim D. Norris, Esq., and Farrah Lynn Walker, Esq . , Stradley,
Ronon, Stevens & Young, 2600 One Commerce Square, Philadelphia,
PA 19103-7098
/ml

466

ADMINISTRATIVE LAW JUDGE ORDERS

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

FEB 2 6 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-404
A.C. No. 11-00887-04127 A

v.
Wabash Mine
KYLE J. WETHINGTON, employed by
AMAX COAL COMPANY,
Respondent
STAY OF PROCEEDING

Petitioner has moved for a stay of the instant proceeding
pending Commission review of my decision in A1Dax Coal Company,
Docket No. LAKE 95-267, 17 FMSHRC 1747 (ALJ-October 1995), which
arose from the identical facts as the instant case 1 • In that
decision, I concluded that Amax's violation of its ventilation
plan and 30 C.F.R. § 75.370(a ) (1) was due to an "unwarrantable
failure" to comply with the regulation.
The finding of "unwarrantable failure" in Amax rests on
my conclusion that Kyle Wethington, an Amax foreman and the
Respondent in this matter, was aware that a line curtain was
not close enough to the working face of ·the mining section to
comply with Arnax ' s ventilation plan . This factual finding was
inferred from the amount of time Mr. Wethington was in · the entry,
the obviousness of the violative condition, and his co~duct in
immediately returning to the section upon encountering MSHA
Inspector Robert Montgomery.
Respondent opposes the stay and indicates that it intends to
take discovery from MSHA regarding the decision to pursue a civil
The Secretary has also moved for partial summary judgment.
I def er ruling on this motion pending the outcome of the
Commission's review of my finding of "unwarrantable failure" in
Affiax Coal Company, Docket No. LAKE 95-267.
1

467

penalty under section llO(c) of the Act. Respondent's counsel
has also indicated an intention to relitigate the issue of
Mr. Wethington's awareness of the violation prior to encountering Inspector Montgomery. To this end, he intends to depose
Robert Scott, a rank-and-file miner, whose testimony I credited
over that of Mr. Wethington, with regard to the length of time
Wethington was in the entry prior to seeing Montgomery.
The motion for a stay of proceeding is GRANTED. The
question in this case is whether Wethington is precluded from
litigating the knowledge issue by virtue of my findings in the
prior civil penalty proceeding. Often courts resolve this issue
by determining whether a litigant was \\in privity" with a party
to a prior action.
Although Mr. Wethington was not a party in the civil penalty
proceeding brought against the operator, his interests are
sufficiently congruent to those of Amax that I deem him to be \\in
privity" with Amax. He is therefore bound by my findings in his
employer's case. As the Court of Appeals for the Eighth Circuit
observed:
... the general common law rule is that claim
preclusion only works against those who had a fair
chance to contest the earlier suit ... This rule has
in recent decades been liberalized, and the focus
of the claim preclusion inquiry has in some instances
shifted from whether a party itself participated
in the prior litigation to whether the party's
interests were fully represented in the earlier case,
albeit by another.
County of Boyd v. US Ecology, 48 F.3d 359, 361 (8th Cir. 1995);
Also see Headley v. Bacon, 828 F.2d 1272 (8th Cir. 19~7).
As the Court of Appeals for the Seventh Circuit noted:
Privity is an elusive concept. It is a descriptive
term for designating those with a sufficiently close
identity of interests. Of course, this definition
reveals very little about the kinds of relationships
that result in res judicata . ..

46 8

Matter of L & S Industries. Inc., 989 F.2d 929, 932 (7th Cir.
1993 )
I

It has also been observed that:
[a]s the preclusive effects of judgments have
been expanded to include nonparties in more and
more situations ... it has come to be recognized
that the privity label simply expresses a conclusion that preclusion is proper. Modern
decisions search directly for circumstances to
justify preclusion.
18 C. Wright, a. Miller & E. Cooper, Federal Practice and
Procedure, §4449, at 418-19 (1981).
In the prior case, Wethington and Amax had a very strong
mutual interest in prevailing on the issue of his knowledge of
the violation. Even in the absence of a llO(c) case, a supervisor has a strong interest in avoiding the affirmation of an
"unwarrantable failure" characterization against his employer
when that allegaton is predicated on his or her conduct or
knowledge. Amax litigated the penalty primarily on the
unwarrantable failure issue.
Although they are not conclusive factors, I note also that
Wethington was one of, if not Amax's principal witnesses in the
civil penalty hearing and that Amax's counsel also represents
Mr. Wethington. Upon review of the record, I decided not to
credit Wethington's testimony with regard to what he knew before
he encountered Mr. Montgomery. I conclude he is not entitled to
another opportunity to litigate this issue in the context of the
llO(c) proce~ding, See Parklane Hosiery Co. v. Shore, 439 U.S.
322, 99 S.Ct. 645, 58 L.Ed. 2d 552 (1979); Soutbwest Airlines Co.
v. Texas International Airlines. Inc., 546 F.2d 84, 95 (5th Cir.
1977); but see Benson and Ford. Inc. v. Wanda Petroleum Co.,
833 F.2d 1172 (5th Cir. 1987) .
In opposing the stay, Wethington also argues that Commission
precedent allows an individual to litigate a Section llO(c) proceeding, irrespective of the outcome of the operator's challenge
to the underlying enforcement action, citing Kenny Richardson,
3 FMSHRC 9 (Review Commission, January 1981) . Richardson is

469

distinguishable in that the operator settled the underlying
enforcement action. In this case whether Mr. Wethington was
aware of the violative condition was fully litigated in the civii
penalty proceeding.
I am also ?npersuaded by Respondent's reliance on Secretary
of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786 (Review Commission 198 0) and Alexander v. Gardner-Denyer,
415 U.S. 36, 39 L.Ed 2d 147, 94 S Ct 1011 (1974). The Supreme
Court's reluctance in Gardner-Denver to cut off the right to a
de novo hearing based on an arbitration decision was predicated
on the nature of arbitrations. The Court noted:
.. . the factfinding process in arbitration usually
is not equivalent to judicial factfinding. The record
of the arbitration is not as complete; the usual rules
of evidence do not apply; and rights and procedures
common to civil trials, such as discovery, compulsory
process, qross-examination, and testimony under oath,
are often 'severely limited, or unavailable . . . . And
as this Court has recognized '[a]rbitrators have no
obligation to gives their reasons for an award.'
415 U.S. 57-58.
No such infirmities exist with regard to the operator's
hearing on its challenge to the "unwarrantable failure" order.
I can see no unfairness in refusing to allow Mr. Wethington to
relitigate the issue of his state of knowledge.
Had Amax
prevailed on the "unwarrantable failure" issue, I would not allow
the Secretary another opportunity to prove that Wethington knew
of the violative condition in a section llO(c} proceeding. I
conclude that Mr. Wethington was afforded all of the procedural
protection to which he was entitled.

rua._.i_~~

~lJ.r J. Amchan

Administrative Law Judge
703-756-6210

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Distribution :
Christine M. Kassak, Esq . , Office of the Solicitor; .
U.S. Department of Labor, 230 South Dearborn St . , 8th Floor,
Chicago, IL 60604 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., One Oxford
Centre, 301 Grant St., 20th Floor, Pittsburgh, PA 15219-1410
(Certified Mail )
/lh

4 71

l'BDmL KDDI 8Al'BTY UD mLD JUNJ:BW' COJO«SSJ:OJI
1244 SPEBR BOULEVARD #280
DENVER, co 80204-3582
303-844-3577/FAX 303-844-5268

March 7, 1996

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

.
..

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-155-M
A.C. No. 05-00516-05565

v.
Black Cloud Mine
ASARCO, INCORP.ORATED,
Respondent

.

ORDER DENYING MOTIONS FOR SUMMARY DECISION

Respondent ("Asarco") filed a motion for summary decision in
this case pursuant to Commission Rule 67, 29 C.F.R. § 2700.67.
The Secretary of Labor opposes Asarco's motion and filed a cross
motion for summary decision. For the reasons set forth below, I
deny both motions.
Commission Rule 67(b) sets forth the grounds for granting
summary decision, as follows:
A motion for summary decision shall be
granted only if the entire record, including
the pleadings, depositions, answers to
i nterrogatories, admissions, and affidavits,
shows:
(1) That there is no genuine issue
as to any material fact; and
(2) That the moving party is entitled to summary decision as a
matter of law.
On March 3, 1994, MSHA Inspector Leo c. Holtz issued to
Asarco Citation No. 3904841 alleging a violation of 30 C.F.R.
§ 57.6131 at its Black Cloud Mine in Lake County, Colorado .
The
citation states that the explosives storage facility at the mine
was about 420 feet from a mine "building in which two miners work
on a regular basis" and that this distance is "insufficient to
protect the miners from the forces generated should this storage
facility explode." The safety standard provides, in subsection
472

(a) (1), that storage facilities for any explosive material shall
be "located so that the forces generated by a storage facility
explosion will not create a hazard to occupants in mine buildings

"
Asarco argues that the citation should be vacated because
MSHA relied on the American Table of Distances in reaching its
conclusion that the explosive storage facility was too close to
the mine building, an assay laboratory. It contends that MSHA
failed to consider the factors set forth in the safety standard
and in the preamble to the standard. The Secretary contends that
it is not prohibited from u sing the American Table of Distances
as a guideline to determine whether a magazine creates a hazard .
In addition, he asserts that the undisputed evidence establishes
that Asarco's magazine creat ed a hazard to occupants in the assay
laboratory and that he is entitled to summary decision in his
favor.
A.

Asarco's motion for summary decision

Until recently, the Secretary's safety standard required
that explosive magazines be "located in accordance with the
current American Table of Distances for storage of explosives."
30 C.F.R. § 57.6020(a} (repealed}. The American Table of Distances was developed by the Institute of Makers of Explosives.
In 1991, the Secretary proposed to revise its explosive standards
to require that explosive magazines be ''located in accordance
with Appendix I for subpart E -- MSHA Table of Distances." Appendix I was a table of distances that was based on the American
Table of Distances. On December 30, 1993, the Secretary promulgated a final rule on safety standards for explosives at metal
and nonmeta l mines wh ich adopted the current language of section
57.6131.
58 Fed. Reg. 69596 (attached as Ex. 4 to Asarco's
memorandum} .
In the preamble to the new standard, the Secretary described
why he changed the standard.
Id. at 69600-60 1 .. The Secretary
explained that his incorporation of the America~ Table of
Distances was n ot acceptable because the table "does not govern
the distances between explosive material storage facilities and
occupied buildings on mine property; rather, it governs the
distances between explosive material storage facilities and
structures, roads, and inhabited buildings off mine property.''
Id. at 69600 (emphasis added). The Secretary's initial proposal
was to create an MSHA table of distances that incorporated
certain portions of the American Table of Distances. This MSHA
table was opposed by the metal and nonmetal mining industry
because: {l} the distances in the MSHA table as developed by the
I nst i tute of Makers of Explosives were not designed to apply to
buildings on mine property; (2} it would force placement of
storage facilities closer to public roads and structures; and (3)

4 73

many mines could not comply with the MSHA table. Id. In
addition, the Institute of Makers of Explosives objected to the
inclusion of its distances in the MSHA table because ·it "never
intended nor conducted any tests for usage of the distances with
respect to occupied structures on mine property." Id.
In the final rule, the Secretary dropped all references to
the American Table of Distances and eliminated the MSHA table.
The Secretary stated that "safety and hazard data collected over
the last 20 years indicate that there have been few unplanned
detonations of magazines or explosive material storage facilities
and even fewer such detonations that have resulted in injury or
death to miners." Id. at 69600- 601. The Secretary further
stated that "application of the separation distances to occupied
buildings and structures on mine property would cause a number of
operators to go to considerable expense to relocate explosive
material storage facilities within the mine site when the Agency
cannot demonstrate supporting data or appreciable benefit at this
time ." Id. at 69601. Finally, the Secretary stated:
MSfU\ appreciates that (the adopted] standard
uses\ perforrnance language and each facility
will 'have to be evaluated on a case-by-case
basis. Examples of factors which the agency
contemplates considering are the types and
quantity of explosive materials, the period
of time which explosives are stored in the
storage facility, and the space restrictions
of the particular mine site .

The citation issued by Inspector Holtz does not mention the
Ameri c an Table of Distances or the proposed MSHA table. Unfortunately, Mr. Holtz has retired and was not deposed by the parties.
In making its argument that the inspector issued the citation
based on the American Table of Distances, Asarco relies heavily
on its deposition of Richard Fisher, a physical:scientist with
MSHA. Mr. Fisher drafted a report concerning explosives storage
at the Black Cloud Mine after the citation was issued ·and recommended that the subject storage facility be moved. Asarco also
r e lies on the deposition testimony of other MSHA officials inc luding Holtz's supervisor, Royal Williams; and Michael Music,
another MSHA supervisor. Based on this deposition testimony,
Asarco argues that the undisputed facts '' show that in i s suing and
investigating the Citation, the Secretary exclusively relied on
tables of distances which are not enforceable under 30 C. F.R.
§ 57.6131."
(Asarco Memorandum at 5).
It also argues that this
undisputed evidence demonstrates that the Secretary did not apply
the factor s adopted in lieu of a table of distances set forth in
the preamble. Accordingly, Asarco contends that the MSHA's cita-

4 74

tion "ran afoul of the long-settled and well-established principle that a federal 'agency must adhere to its own rules and
regulations . '" (Id. at l · (citation omitted)) .
The Secretary contends that the standard and the preamble
do not prohibit the use of the American Table of Distances as a
guideline and notes that the table is "widely accepted in industry as a guideline to determine distances of safety for explosives."
(Secretary Motion at 4). In addition, he argues that
the explosives "magazine was located in such proximity to the
assay building as to present a hazard to miners working in that
building ••.• 11 Id. The Secretary relies, in part, on the d eposition testimony of Mr. Music that, if the magazine exploded,
the explosion would cause serious harm or death to miners in the
assay building. The Secretary states that the record demonstrates that there was a violation without reference to the
American Table of Distances.
I agree with Asarco that MSHA cannot rely on the American
Table of Distances to prove a violation of section 57.6131. As
stated in the preamble to the safety standard, the American Table
of Distances does not govern safe distances between explosive
storage facilities and buildings at a mine. As a result, the
Secretary deleted all reference to this table and to a proposed
MSHA table when the final rule was promulgated. In its place,
the Secretary established a requirement that MSHA evaluate the
hazard "on a case-by-case basis." 58 Fed. Reg. at 69601. The
preamble to the standard states that a number of factors should
be considered by MSHA inspectors and included, as examples, "the
types and quantity of explosive materials, the period of time
which explosives are stored in the storage facility , and the
space restrictions at the particular mine site." Id. Thus, a
citation that a lleges a violation of the safety standard on the
basis of the American Table of Distances cannot be sustained.
Asarco contends that the record establishes beyond any doubt
that "MSHA made no ... determinations supporting the alleged violation" other than the rejected American Table of Distances.
(A.
Reply at 2). It argues that MSHA failed to con~ider the factors
set forth in the preamble and failed to perform any calculations
or a detailed analysis establishing that the miners in -the assay
laboratory were at risk. I find that the record, as presented by
the parties, does not establish that the Secretary "exclusively
relied on the tables of distances" in determining that a violation of the safety standard existed. The citation and Inspector
Holtz's notes do not mention the American Table of Distances.
(S . Exs. A & B). While it appears that Mr. Fisher relied almost
exclusively on this table, it is not clear that Mr. Music did.
Mr. Music testified at his deposition that a detailed analysis
was not necessary because the assay building was so close to the

4 75

magazine. In his opinion, based on his knowledge anq experience,
the miners in the laboratory would be endangered if the magazine
exploded. He stated that "you don't have to be a rocket scientist to figure ·out that if (the magazine] went off 'unplanned,
that would be devastating to that mine building •••• " (S. Motion
at 7, quoting Ex.Hat 17). Accordingly, the record contains
evidence that the Secretary may be able to establish a violation
without reference to the American Table of Distances. Thus, the
secretary set forth specific facts showing that there is a
genuine issue for hearing.
Because a material fact is in dispute, Asarco's motion for
summary decision is DENIED.
B.

The Secretary's motion for summary decision

The Secretary contends that he is entitled to summary decision because there is no dispute that forces generated by the
storage facility would create a hazard to the occupants of the
assay laboratory. Asarco disputes this fact, however. Asarco
has not admitted that the explosives storage facility created a
hazard and it contends that MSHA did not correctly analyze the
requisite factors when it issued the citation. For example,
Asarco argues that the fact that the magazine was built into the
side of the mountain protected the miners working in the assay
laboratory and that MSHA did not take this fact into consideration. Asarco set forth specific facts showing that there is a
genuine issue for hearing.
Because a material fact is in dispute, the Secretary's
motion for summary decision is DENIED.
II.

THE HEARING

The hearing in this proceeding will commenqe. at 9:30 a.m.
on Tuesday, April 16, 1996, in Denver, Colorado, as previously
scheduled. There is no dispute that the explosives magazine at
the Black Cloud Mine was a "storage facility" and that it contained "explosive material" as those terms are used in the safety
standard. The issues at the hearing will include whether the
magazine was located so that the "forces generated" by an explosion at the magazine "will not create a hazard to occupants in
mine buildings." The Secretary bears the burden of proving that
Asarco violated the safety standard and must establish that MSHA
took into consideration such site-specific factors as the types
and quantities of explosive materials in the magazine, the period
of time that explosive materials are stored in the magazine, and

4 76

the space restrictions at the mine. The Secretary cannot rely on
the American Table of Distances to prove its case.

Richard w. Manning
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver~ co 80202-5716
(Facsimile and U.S. Mail)
'
Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350 (Facsimile and U.S. Mail)
RWM

477

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

March 8, 1996

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 95- 13
A.C. No. 29-00224-03643

v.
PITTSBURG & MIDWAY COAL
MINING COMPANY
Respondent

Cimarron Mine

ORDER DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION

This case is before me upon a petition for assessment of a
civil penalty under Section 105{d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S .C. § 801 et §.filL_ (the " Act " ).
The
parties filed a · joint motion to approve settlement for the two
orders of withdrawal in this case. The parties agree that Order
No. 3848263 should be withdrawn (vacated) and that the penalty
proposed for Order No. 3848264 should be reduced from $7,500 .00
to $3,750.00.
Order No. 3848263 was issued under section 104(d) (2) of the
Act for an alleged violation of 30 C.F.R. § 75 . 370(a) (1).
In the
motion, the Secretary agreed to vacate this order. Because the
Secretary has the discretion to withdraw or vacate a citation or
order of withdrawal issued under the Act, RBK Construction, Inc . ,
15 FMSHRC 2099, 2101 {October 1993), this part of the joint
motion is accepted .
Order No. 3848264 was issued under section 104{d) (2) of the
Act for an alleged violation of 30 C.F.R. § 75.362{a) (2) .
Section 75.362(a) (2) provides:
Hazardous conditions shall be corrected
immediately.
If these conditions create an
imminent danger, everyone ... shall be
withdrawn from the area affected to a safe
area until the hazardous condition is
corrected .
The order alleges that the longwall section foreman "fa iled
to immediately correct the hazardous condition of a methane
concentration greater than 6 percent just inby the pillar line
for the longwall gob shield and the improper air movement of the
gob air to the active workings at the longwall tailgate." The

478

citation further alleges that when the foreman was informed of
these conditions, he did not withdraw miners to a safe area but
continued mining operations.
The joint settlement motion provides, in pertinent part:
Investigation into this 104(d) (2) order
and the inspector's and investigator's
factual findings support the issuance of the
violation.
The parties agree that Order No. 3848264
should be affirmed in all particulars but
that the special assessment of $7 , 5 00.00
should be amended to $3,750.00. The basis
for the mitigation are the Respondent's
concession of the violation and Respondent' s
good faith negotiations. Additionally,
Respondent previously paid a penalty
assessment of $17,500 for Citation No.
3589770 and Order No. 358 9 771 (Docket No .
CENT 94-47) which addressed the same period
and similar omissions as Order No. 3848264
addresses.
Accordingly, the parties agree that the
proposed reduction in the s pecially assessed
penalty is fair, reflects full consideration
of the statutory criteria set forth in
Section lOS(b} {l}(B} of the Act, •.• and
justly addresses Respondent's culpability.
Motion at 3-4.
I cannot approve the proposed settlement of Order No.
3 848264. The Commission and its judges are requ i red t o review
proposed settlements pursuant to section llO(k) of the Act. 30
u.s.c. § 820(k); See, s. Rep. No. 181, 95th Cong., 1st Sess. 4445 (1977), reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2d Sess., Legislative History o f
the Federal Mine Safety and Health Act of 1977, at 632-3 3 (197 8 ).
It is the judge's responsibility to determine th~ appropriate
amount of penalty, in accordance with the six c riteria in section
llO(i) of the Act.
30 u.s.c. § 820( i ); Sellersburg Stone Co . v.
FMSHRC, 736 F.2d 114 7 (7th Cir. 1984). A proposed r e duction must
be based o n a consideration of the civil p e nalty criteria in
section llO( i ) ._
It appears that the parties agree that MSHA correctly
evaluated the civil penalty criteria when it proposed the $7 , 50 0
penalty.
It further appears that they seek a reduction in the
penalty based not on a reevaluation o f this criteria but o n

4 79

..·.:

factors that are not included in section llO{i), such as
Respondent's demonstrated good faith during settlement
negotiations. In addition, the joint motion does do not explain
the relationship between the penalty Respondent paid in CENT 9447 and the proposed reduction in the penalty in the present case.

·.:...v.:·

In light of the foregoing, the joint motion for approval of
settlement is DENIED • . on or before April 9, 1996, the parties
shall submit additional information and offer a more complete
explanation of their agreement in support of the motion for
settlement. Otherwise, this case will be set
hea~·..-.....~

Richard W. Manning
Administrative Law Judge

!··

Distributi on:

(
)I

Robert A. Goldberg, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202

'I·
.I .
.l
·1·

John W. Paul, Esq, PITTSBURG & MIDWAY COAL MINING COMPANY, P.O.
Box 6518. Englewood, co 80155-6518
I

i.
!.

RWM

1.
~ :

l
!

•u.s. Govemment Printing Offoc:e: 1996 • 405-710/53378

4 80