MAY 2002

COMMISSION DECISION AND ORDERS

05-07-2002 CDG Materials, Inc.
05-07-2002 Pea Ridge Iron Ore Company
05-07-2002 Tide Creek Rock, Inc.
05-07-2002 Cholla Ready Mix, Inc.
05-07-2002 Holnam Texas Limited
05-09-2002 Vermont Unfading Green Slate Co., Inc.
05-10-2002 B & B Crushing
05-10-2002 Rosebud Mining Company
05-10-2002 Ronald Harrison v. Sidco Minerals
05-14-2002 Disciplinary Proceeding
05-16-2002 Hocker Construction
05-21-2002 Webster Scale, Inc.
05-21-2002 Applegate Shale

WEST 2002-299-M
CENT 2002-159-M
WEST 2002-202-M
WEST 2002-276-M
CENT 2002-74-M
YORK 2000-65-M
WEST 2002-109-M
PENN 2002-50
CENT 2000-88-DM
D
2001-1
WEST 2002-259-M
CENT 2002-192-M
WEST 2002-367-M

Pg.419
Pg. 423
Pg.428
Pg. 432
Pg. 436
Pg. 439
Pg.453
Pg.457
Pg.461
Pg.465
Pg.488
Pg.491
Pg. 495

KENT 2002-225-D
KENT 2001-428

Pg. 500
Pg. 502

ADMINISTRATIVE LAW JUDGE DECISIONS

05-23-2002 Secretary of Labor on behalf of
Kenneth Kunkel v. Silver Cloud Coal, Inc.
05-28-2002 Ohio County Coal Company

MAY 2002

Review was granted in the following case during the month of May:
Baylor Mining, Inc., v. Secretary of Labor, MSHA, Docket No. WEVA 2001-124-R.
(Judge Hodgdon, May 1, 2002)

Review was denied in the following case during the month of May:
Louis Dykhoff, Jr. v. U.S. Borax Incorporated, Docket No. WEST 2001-409-D.
(Judge Manning, March 27, 2002)

ii

COMlVlISSION DEOSIONS AND ORDERS

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

May7, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. WEST 2002-299-M
WEST 2002-300-M

CDG MATERJALS, INC.

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER
BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On March 11, 2002, the Commission received from CDG
Materials, Inc. ("CDG") a request to reopen two penalty assessments that had become final
orders of the Comm ission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days follow ing receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On or approximately October 24, 2001, the Department of Labor's Mine Safety and
Health Administration ("MSHA") sent to CDG two proposed penalty assessments totaling
$9,550 for 14 citations that it issued to CDG on March 2 and 5, 2001. In its motion, CDG
contends that it timely submitted a request for a hearing on these proposed assessments to
MSHA, but on March 6, 2002, was notified by MSHA's Civil Penalty Compliance Office that its
hearing request was denied because it was untimely. Mot. It maintains that "due to recent
current events the efficiency of the U.S. Postal Service may have been compromised during and
around the time frame" for filing its request. Id. CDG asserts that it "has valid points pertaining
to this case" and requests that the Commission reopen the proposed assessments so that it may
proceed to a hearing on the merits. Id. CDG did not attach any documents to its request.

4 19

We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section IOS(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, ifthe defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700.1 (b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadver1ence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).

On the basis of the present record, we are unable to evaluate the merits of CDG's
position. Other than CDG's assertions, the record contains no information regarding whether
CDG submitted a request for a hearing, and if it did, when it was sent by CDG and whether and
when it was received by MSHA. Nor is it clear which proposed penalties CDG intended to
contest. Accordingly, we remand the matter for assignment to a judge to determine whether
relief from the final order is appropriate. See Kerr Enterprises, Inc., 24 FMSHRC 1, 2 (Jan.
2002) (remanding to judge where prose operator offered no explanation for failure to timely file
request for hearing); BR&D Enterprises, 22 FMSHRC 479, 480-81 (Apr. 2000) (remanding to
judge where operator alleged that it timely filed a hearing request by certified mail, but never
received return receipt); H & D Coal Co., 23 FMSHRC 382, 383 (Apr. 2001) (remanding to
judge where operator allegedly mailed hearing request, but MSHA did not receive it). If the
judge determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

e;

7 ;:::::c

:f

J

Robert H. Beatty, Jr., Cornmissione

420

Chairman Verheggen, dissenting:
I would grant CDG's request for relief. First, I note that the Secretary does not oppose
the operator's motion. I also note that the operator is proceeding prose, and that the
Commission has always held the pleadings of pro se litigants to less stringent standards than
pleadings drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). In addition, the timing ofMSHA's delivery
of the proposed assessments and the deadline for CDG to file hearing requests fell shortly after
the events of September 11 , 2001, a time during which the U.S. mails were severely.disrupted.
Under these circumstances, and because no other circumstances exist that would render a grant of
relief here problematic, I fail to see the need or utility for remanding this matter. I therefore
dissent.

421

Distribution
Kelly A. Crown
CDG Materials, Inc.
P.O. Box 20758
Riverside, CA 95216
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Depa11ment of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

422

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

May?, 2002

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

CENT 2002-159-M
A.C. No. 23-00454-05592
CENT 2002-160-M
A.C. No. 23-00454-05593

v.

Docket Nos.

CENT 2002-161-M
A.C. No. 23-00454-05594
CENT 2002-162-M
A.C. No. 23-00454-05595
CENT 2002-163-M
A.C. No. 23-00454-05596

PEA RIDGE IRON ORE COMPANY

BEFORE: Verheggen, Chahman; Jordan and Beatty, Commissioners

ORDER

BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On April 1, 2002, the Commission received from Pea Ridge
Iron Ore Co. ("Pea Ridge") two requests to reopen five penalty assessments that had become
final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

423

In its first request, Pea Ridge seeks relief for four proposed penalty assessments (A.C.
Nos. 23-00454-05592 through 05595) totaling $8,854 for 67 alleged violations. Mot. dated
March 29, 2002 ("Mot. f'). In its second request, it seeks to reopen one proposed assessment
(A.C. No. 23-00454-05596) totaling $297 for two alleged violations. Mot. dated March 30, 2002
("Mot. II"). In both requests, Dwight A. Miller, Pea Ridge's executive vice president and general
counsel, asserts that, due to internal mismanagement, Pea Ridge failed to timely submit a request
for a heating on the proposed penalty assessments to the Department of Labor's Mine Safety and
Health Administration ("MSHA"). Mots. I & II. Miller contends that Pea Ridge ceased all
mining operations and began liquidating its assets in August, 2001. Id. He asserts that all but
two employees involved in the liquidation have been terminated. Id. Miller explains that "[a]s a
result of the administrative turmoil resulting from the cessation of operations and employee
terminations, the deadline for contesting 4 cases were inadvertently missed" for A.C. Nos. 2300454-05592 through 05595. Mot. I.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR") ; Rocky Hollow Coal Co., 16 FMSHRC 1931 , 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the me1its permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l (b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co. , 19
FMSHRC 1021, 1022-23 (June 1997). However, where an operator has failed to timely submit a
hearing request due to internal mishandling, the Commission has remanded the matter to a judge
for further consideration. See, e.g., Georges Colliers, Inc., 22 FMSHRC 939, 939-41 (Aug.
2000) (remanding to judge where operator misfiled proposed penalty assessment due to changes
in office personnel); E. Ark. Contractors, Inc., 21FMSHRC981, 981-83 (Sept. 1999) (same).
Pea Ridge alleges that it failed to timely request a hearing because of the cessation of
mining operations and termination of its employees. We note that Pea Ridge recently made a
similar request to reopen a proposed assessment claiming that it fai led to timely file a hearing
request due to personnel lay-offs. Pea Ridge Iron Ore Co., 24 FMSHRC 4, 4-5 (Jan. 2002)
("Pea Ridge f'). In Pea Ridge I, we remanded the matter to a judge to determine whether relief
was warranted. Id. Here, the operator received the five proposed penalty assessments between
approximately December 21, 2001 and February 15, 2002, which overlaps our decision in Pea
Ridge I. Because the operator is requesting relief on the same basis it submitted its prior request
to reopen nearly five months ago, and consistent with our decision in Pea Ridge I, we remand the
matter for assignment to a judge to determine whether relief from the final order is appropriate.
424

If the judge determines that such relief is appropriate, this case shall proceed pursuant to the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

C<e::tV~
Roben H. Beatty, Jr., Commissioner

425

Chairman Verheggen, dissenting:
Consistent with my dissent in Pea Ridge Iron Ore Co., 24 FMSHRC 4, 6 (Jan. 2002), I
would grant Pea Ridge's request for relief. The Secretary does not oppose the operator's request.
Nor do I find any other circumstances that would render a grant ofreliefhere problematic. Under
these circumstances, I thus fail to see the need or utility for remanding this matter.

Theodore F. Verheggen, Ch~

426

Distribution
Dwight A. Miller, Executive Vice President
Pea Ridge Iron Ore Company, Inc.
231 South Bemiston A venue, Suite 1100
St. Louis, MO 63105
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

427

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

May 7, 2002

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

Docket Nos.

WEST 2002-202-M
A.C. No. 35-02479-05515
WEST 2002-203-M
A.C. No. 35-02479-055 16

v.

WEST 2002-222-M
A.C. No. 35-02479-05508

TIDE CREEK ROCK, INC.

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER
BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On February 5, 2002, the Commission received from Tide
Creek Rock, Inc. ("Tide Creek") a request to reopen penalty assessments that had become final
orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, Tide Creek contends that it did not receive the proposed penalty
assessments from the Department of Labor's Mine Safety and Health Administration ("MSHA")
because the certified mailings could not be delivered to the mine and were returned to MSHA
undelivered due to the mine's remote location and the absence of a person to receive the
mailings. Mot. at 13, 16; Ex. 3. The operator claims that John A. Petersen, the representative of
miners at Tide Creek responsible for MSHA matters, never received the proposed assessments
and if he had, the operator would have contested all penalty assessments. Id. at 12-15. It
explains that it received over 70 citations between September 29, 1999 and April 6, 2000, and
that contest proceedings for many of these citations and penalty assessments were pending before
Chief Administrative Law Judge Barbour while it was awaiting proposed assessments for 36
428

outstanding citations. Id. at 4-5. The operator asserts that during this time, it called MSHA on
numerous occasions and sent several letters inquiring about the status of these outstanding
proposed assessments in an effort to file a hearing request. Id. at 6-11. 1
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co. , 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits pem1itted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Rule 60(b) of the Federal Rules of
Civil Procedure. See 29 C.F.R. § 2700. l(b) ("the Commission and its judges shall be guided so
far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In
accordance with Rule 60(b)(l), we previously have afforded a party relief from a final order of
the Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC
704, 705(May1996); Kinross Delamar Mining Co. , 18 FMSHRC 1590, 1591-92 (Sept. 1996);
Stillwater Mining Co. , 19 FMSHRC 1021 , 1022-23 (June 1997).
In essence, Tide Creek, which is proceeding prose, claims that it did not receive the
penalty assessments at issue because MSHA's certified mailings were unsuccessful. Tide
Creek's motion clearly demonstrates that numerous attempted deliveries of certified mail to the
company were unsuccessful. A letter from Tide Creek to MS.HA dated May 7, 2001 states that
the company "received a notice of a certified letter on April 16, 2001 , but it [i.e., the letter] was
returned to you and we do not lmow what it was." Mot. Ex. 2. A later letter from MSHA to Tide
Creek confirms that "no one picked up the certified return receipt mail containing [two of] the
assessments" at issue here, despite three delivery attempts by the U.S. Postal Service. Mot. Ex. 3
(Dec. 28, 2001). The delivery attempts were made during June and July of2001. Id.
It is also clear from the attachments to Tide Creek's motion that the company intended to
contest any penalties assessed for citations it received from September 1999 through April 2000.
The company's May 7, 2001 letter to MSHA, for example, includes a long list of citation
numbers and states that, if the certified mail it failed to receive was a penalty assessment, the
company wanted "to contest the proposed assessments and . . . REQUEST A HEARING ON
THE VIOLATIONS." Mot. Ex. 2.

1

In its motion, Tide Creek also argues that MSHA unreasonably delayed assessing many
of the penalties at issue, that the company's ability to continue in business would be
compromised if the assessments must be paid, that the company failed to receive adequate notice
of the assessments, that the company's communications with MSHA should be deemed to
constitute adequate hearing requests, and that the company is entitled to attorney's fees and
expenses under the Equal Access to Justice Act, 5 U.S.C. § 504(a)(l). All these matters fall
outside the scope of our review of Tide Creek's motion, and we thus do not reach them.

429

It is not clear, however, from Tide Creek 's motion exactly why the company was unable
to either receive certified mail 2 or, more importantly, respond to notices of attempted delivery of
certified mail by retrieving the mail at the local post office. In one of its exhibits, the company
admits it received such a notice. Id. (May 7, 2001) ("We received a notice of a certified letter
... "). The company asserts that its address "is a rural mail box, and that certified mail often did
not get delivered." Mot. at 16 ii 23. But no further explanation is offered regarding efforts to
address these mailing difficulties, in the absence of which we are unable to determine whether
Tide Creek's failure to file the penalty contests was the result of mistake or inadvertence.

In the interests of justice, however, we remand this matter for assignment to a judge to
determine whether relief from the final orders is appropriate. See Pasco Gravel Co. , 24
FMSHRC 16 (Jan. 2002) (remanding default motion to judge to determine whether relief from
final order was appropriate where operator alleged that it did not receive proposed assessments
and had requested a hearing twice on the telephone to an MSHA supervisor). If the judge
determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Cha·

Robert H. Beatty, Jr., Commissioner

2

Under 30 C.F.R. Part 41, a mine operator is required to file with MSHA detailed
information regarding its legal identity, including its address.
430

Distribution
Agnes Marie Peterson
Tide Creek Rock, Inc.
33625 Tide Creek Road
Deer Island, OR 97054
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd.
zznd Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

431

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

May?, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 2002-276-M
WEST 2002-277-M

v.
CHOLLA READY MIX, INC.

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On March 4, 2002, the Commission received from Cholla
Ready Mix, Inc. ("Cholla") a request to reopen penalty assessments that had become final orders
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor' s proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its request submitted by Cholla' s President, Dale McKinnon, the operator, which is
unrepresented by counsel, asserts that it filed a hearing request to contest the proposed penalties
in A.C. No. 02-01823-05517, which is the subject of Docket No. WEST 2002-165-M, and
mistakenly believed that its request applied also to the proposed penalties in A.C. Nos. 0201823-05516 and 02-01823-05518, which are the subjects of this request to reopen. Mot.

432

Cholla explains that it "thought [it] had already contested them when [it] contested 19 other
violations." Id.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res. , Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits pennitted. See Coal Prep. Servs.,
Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l(b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).
On the basis of the present record, however, we are unable to evaluate the merits of
Cholla's position. In the interest of justice, we remand the matter for assignment to a judge to
determine whether ChoIla has met the criteria for relief under Rule 60(b). See Eclipse C Corp.,
23 FMSHRC 134, 135 (Feb. 2001) (remanding to a judge where operator failed to timely file
hearing request because it mistakenly believed that its filing of a contest for one proposed
assessment also applied to two other proposed assessments it received at the same time). If the
judge determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

433

Chairman Verheggen, dissenting:
I would grant Cholla's request for relief. First, I note that the Secretary does not oppose
the operator's motion. I also note that the operator is proceeding prose, and the Commission has
always held the pleadings of pro se litigants to less stringent standards than pleadings drafted by
attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992) (citing Haines v. Kerner,
404 U.S. 519, 520 (1972)). Nor do I find any other circumstances that would render a grant of
relief here problematic. Under these circumstances, I thus fail to see the need for or utility of
remanding this matter.

434

Distribution
Dale McKinnon, President
Cholla Ready Mix, Inc.
P.O. Box 789
Holbrook, AZ 86025
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

435

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

May 7, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2002-74-M
AC. No. 41-03307-05564

v.
HOLNAM TEXAS LIMITED

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: THE COMMISSION
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On January 7, 2002, the Commission received from Holnam
Texas Limited ("Holnam") a motion made by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U .S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In its motion, Holnam asserts that it intended to contest the proposed penalty relating to
Citation No. 7895146 but that it did not submit a green card because it inadvertently paid the
assessment. Mot. at 2-3. Holnam contends that the citation was issued pursuant to an inspection
by the Department of Labor's Mine Safety and Health Administration ("MSHA") on November
16, 2000. Id. at I. It is a matter of record that Holnam filed a Notice of Contest for the citation
436

underlying the penalty at issue here, Docket No. CENT 2001-60-RM, and that this contest
proceeding is currently stayed pending the issuance of a proposed penalty assessment. MSHA
issued a proposed penalty assessment for the contested citation on August 23, 2001. Mot. at 2.
Holnam points out, however, that on September 24, 2001, its plant safety director, Andy Yuhas,
inadvertently initiated payment of the civil penalty after failing to recognize the modified citation
as being related to the original contested citation. Id.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89(May1993) (".!WR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, ifthe defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In re~pening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l (b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).

On the basis of the present record and based on counsel's representations in their motion,
we grant Holnam's motion for relief, reopen the penalty assessment that became a final order,
and remand to the judge for further proceedings on the merits. The case shall proceed pursuant
to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Chai

Robert H.° Beatty, Jr., Comm~er

437

Distribution
William K. Doran, Esq.
Heenan, Althen & Roles, LLP
1110 Vermont Ave., N.W., Suite 400
Washington, D. C. 20005
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

438

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

May9, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos.

YORK 2000-65-M
YORK 2000-66-M

VERMONT UNFADING GREEN SLATE
COMPANY, INC.

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners
DECISION
BY: Verheggen, Chairman; Beatty, Commissioner
In this civil penalty proceeding arising under the Federal Mine Safety and Health Act, 30
U.S.C. § 801 et seq. ("Mine Act"), Administrative Law Judge T. Todd Hodgdon affirmed five
citations, modified and affirmed two citations, and vacated four citations issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") to Vermont Unfading
Green Slate Company ("Vermont Slate"). 23 FMSHRC 3 10, 320 (Mar. 2001) (ALJ). Vermont
Slate filed a petition for discretionary review ("PDR") challenging the judge's decision on
procedural grounds and requesting that the Commission vacate the judge's findings of six
violations. PDR at 1-5. The Commission subsequently granted Vermont Slate's petition. For
the reasons that follow, we vacate the judge's decision with respect to one citation, and affirm the
judge's decision in all other respects.

I.
Summary Factual and Procedural Background
Vermont Slate operates the Blissville Quarry and Mine, a slate quarry in Rutland County,
Vermont. 23 FMSHRC at 310. On January 19, 2000, Inspector Brett Budd and Inspector-trainee
Robert Tango arrived at the Blissville Quarry to conduct a semi-annual inspection. Id. After
completing the inspection, the inspectors issued 11 citations to the operator. Id.

439

Vermont Slate contested aJl 11 violations and penalties. Id. at 311-18. MSHA
subsequently filed a petition for assessment of penalties in the amount of $904. Id. at 310. On
December 14, 2000, a hearing was held in Rutland, Vermont. Id. Vermont Slate Supervisor
Shawn Camara represented the operator at the hearing. In his decision, the judge concluded,
inter alia, that the operator had committed the six violations at issue here, and assessed penalties
totaling $470. Id. at 319-20.

II.
Disposition
A.

Citation No. 7720771

1.

Contest of Violation

MSHA issued Citation No. 7720771 to Vermont Slate for an unguarded v-belt drive on
the slate trimmer, alleging a violation of30 C.F.R. § 56.14107(a). 1 23 FMSHRC at 313. The
citation stated that "[a] machine guard was not provided to prevent accidental contact with the
v belt drive system, exposing the pinch points that are about 5 feet from ground level, located on
the left side of the slate trimmer." Id.; G. Ex. 5. The trimmer was about three to four feet high
and three feet wide, and was located in the garage on a stack of pallets about fom to five feet
high. 23 FMSHRC at 313; Tr. 64-66, 70-71. A wheelbarrow was located on the ground below
the trimmer to catch chips of slate from the machine. Tr. 65, 163, 167. Budd testified that the
operating station on the trimmer had a drive wheel which turned the blade to trim the slate, and
that below the drive wheel was an electrical motor that drove the pulley to operate the machine.
23 FMSHRC at 313; Tr. 67. He also testified that the v-belt drive was not guarded, exposing a
miner standing on the platform to operate the trimmer to two pinch points. Tr. 67. According to
Budd, the upper pinch point was located where the v-belt drive contacted the upper drive pulley,
which was about three to four feet above the platform, and the lower pinch point was located
where the v-belt crune in contact with the drive pulley onto that system, which was about one
foot above the platform. Tr. 67-69.

1

Section 56.14107 provides in pertinent part:
(a) Moving machine parts shall be guarded to protect persons from
contacting gears, sprockets, chains, drive, head tail and takeup
pulleys ... and similar moving parts that can cause injmy.

(b) Guards shall not be required where the exposed moving parts
are at least seven feet away from walking or working surfaces.
30 C.F.R. § 56.14107.
440

Camara admitted that the v-belt was not guarded, but testified that the pulley had a guard
on the front. Tr. 165, 169. He also testified that a person would not be standing on the platform
while the trimmer was running, and that the only way a person could get caught in the moving
parts was if he was standing on the ground pointing a stick into the belt drive or was nine feet
tall. Tr. 164, 166, 168-69. On cross-examination, Camara admitted that a miner operating the
machine would stand on the pallets, but testified that "where the guy sits or where the guy stands,
that's where it's guarded." Tr. 165, 167. Camara also testified that the exposed moving parts
were towards the back on the side of the trimmer, but did not pose a hazard because benches on
both sides of the machine prevented access from the platform. Tr. 163-65, 167-68. He also
testified that the moving parts did not pose a hazard to someone standing on the ground because
it was about eight feet off the ground. Tr. 163-64.
The judge found that the exposed moving parts on the trimmer were not properly
guarded, posing a hazard to the machine operator standing on the pallet platform. 23 FMSHRC
at 314. He dismissed Camara's testimony as irrelevant because it addressed whether the exposed
moving parts posed a hazard to a person standing on the ground. Id. The judge concluded that
the violation was not significant and substantial,2 and assessed a penalty of$55. Id. at 313-14,
319.
On review, Vermont Slate asserts that the evidence does not suppo1t a finding of a
violation because Budd testified that the hazard existed to someone standing on top of the pallets
next to the machine1y, but Tango's notes and the citation indicate that the hazard exists to
someone standing beneath the machinery. PDR at 3. It contends that the v-belt is adequately
guarded and that "a worker on top operating the machine would [not] be exposed to any danger."
Id. The Secreta1y argues that Budd testified that a miner standing on top of the pallets is subject
to the hazard and that he had explained this to Camara during the inspection. S. Br. at 13-14.
She asserts that the citation states that "pinch points are about 5 feet from ground level," which
corroborates Budd's testimony that the hazard was to a miner standing or working on the
platfo1m. Id.
The judge's characterization of Camara's testimony as "in-elevant" because it dealt "only"
with "someone standing on the ground" is incorrect. Some of Camara's testimony was an
attempt to refute the danger posed by the pinch points to a miner standing on the pallets.
Specifically, the judge did not consider Camara's testimony that the exposed moving parts did
not pose a hazard because benches on the side of the trimmer prevented access from the platform.
Commission Procedural Rule 69(a) requires that a Commission judge's decision "shall
include all findings of fact and conclusions of law, and the reasons or bases for them, on all the
material issues of fact, law or discretion presented by the record." 29 C.F.R. § 2700.69(a). As
2

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l ), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
441

the D. C. Circuit has emphasized, "[p]erhaps the most essential purpose served by the
requirement of an articulated decision is the facilitation of judicial review." Harborfite Corp. v.
ICC, 613 F.2d 1088, 1092 (D.C. Cir. 1979). Wi thout :findings of fact and some justification for
the conclusions reached by a judge, we cannot perform our review function effectively.
Anaconda Co., 3 FMSHRC 299, 299-300 (Feb. 198 1). We thus have held that a judge must
analyze and weigh all probative record evidence, make appropriate findings, and explain the
reasons for his or her decision. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994).
Camara's testimony regarding the hazard to miners on the platform is clearly relevant.
Because the judge did not consider this testimony, he erred by failing to analyze and weigh all the
probative record evidence to determine whether the moving parts posed a hazard to miners on the
platform.
Our dissenting colleague appears to agree with our conclusion that the judge erred when
he dismissed Camara's testimony based on irrelevance. Slip op. at 11. However, our colleague
makes the mistake of evaluating Camara's testimony here as "muddied and inconsistent" and
suggests that remanding to the judge is not necessary. 3 Id. It is for the judge in the first instance,
not the Commission on review, to evaluate testimony and make findings of fact. See Grizzle v.
Pickands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993) (ALJs have "sole power to make
credibility dete1mination and resolve inconsistencies in the evidence") (citation ommitted).
2.

Tango 's Testimony

In conjunction to its challenge to the citations, Vermont Slate argues that the judge erred
when he refused to allow it to call Tango to testify about his notes and the citations written on the
date of the inspection. PDR at 1. At the hearing, when Camara cross-examined Budd about
Tango's notes, he stated, "Mr. Baskin [the Secretary's counsel] said on the phone that Mr.
T[ aJngo and Mr. Budd was [sic] going to be here, and Mr. T[ a]ngo is not here. Now I would
think that maybe possibly he should be here." Tr. 114. The judge responded, " that's up to Mr.
Baskin or you, not - if he's [Tango] not here, he's not here." Tr. 114. At another point during
the hearing, Camara stated, "I would like Mr. T[a]ngo to be here during these questions. He's
obviously not here." Tr. 132. The judge responded, "Well it may be, but the Government chose
3

Our dissenting colleague relies on the Commission's decision in Arch of Kentucky, 20
FMSHRC 1321 (Dec. 1998), to support her opinion that remanding this matter to the judge is
unnecessary. In Arch, the Commission held harmless the judge's error in sustaining the
Secretary's objection to the operator's questioning of her witness on cross-examination,
effectively excluding evidence the operator sought to submit. Id. at 1328-29. However, Arch is
distinguishable because in that case, the judge had the opportunity to consider the value of the
excluded evidence in light of the Secretary's objection and the parties' arguments at the hearing.
Unlike Arch, here, Vermont Slate did not know at the hearing that the judge would not consider
Camara's testimony and thus did not have an opp011unity to present alternative evidence or its
arguments below.
442

not to call him." Tr. 132. Camara then asked the judge, "Can I call him?" Tr. 132. The judge
replied, "To get him here, we're going to have to continue the case." Tr. 132. He explained to
Camara that he doesn't "tell the patties who they have to present as witnesses, they decide," and
that it was "up to the solicitor [what witnesses to call], and they are not calling him [Tango]." Tr.
132-33. Camara asked "What do I do?" Tr. 133. The judge explained that he could "tell us your
versions of all these citations." Tr. 133. The judge then recessed for 15 minutes, and upon
resuming, asked Camara "[w]hat would you like to do?" Tr. 133-34. Camai·a responded that he
wanted to call Carl Onder and proceeded with the presentation of his case. Tr. 134. After
Camara questioned Onder, he stated that he did not want to testify and attempted to rest his case.
Tr. 147-48. The judge persuaded Camara to take the stand to testify about each citation. Tr. 148.
On review, Vermont Slate contends that it did not subpoena Tango because counsel for
the Secretary indicated that Tango would be present at the hearing. PDR at 1. The operator
points out that much of the testimony of Budd, the inspector who accompanied Tango on the
inspection, was inconsistent with Tango's notes, and that it was more appropriate for Tango to
testify about his notes. Id. at 1-2. Vermont Slate thus contends that it was prejudiced by Tango's
absence. Id. The Secretai·y responds that the record does not support Vermont Slate's assertion
that she indicated Tango would be at the hearing, and also denies that the operator made a
showing of prejudice. S. Br. at 5-9.
While the judge did provide a measure of guidance to Camai·a, a pro se litigant, we find
he sent mixed signals to Camara in response to his request to call Tango as a witness. For
example, when Camara asked the judge whether Tango should be present, the judge did not
inform Camara that he could call Tango, or of the procedure for doing so. In fact, when Camara
specifically asked the judge whether he could call Tango, the judge responded that the case
would have to be continued, and did not directly respond to Camara's question. The judge's
response may have confused Camara, because he again asked the judge what he could do, and
ultimately did not pursue calling Tango in spite of his insistence that the inspector's testimony
would be key to Vermont Slate's case.
We do not suggest that the judge abused his discretion. However, as a matter of fairness
and in the interest of justice, Vermont Slate should be given an opportunity to present Tango's
testimony in support of its case, particularly in light of the fact that the company is proceeding
pro se. Based on the record, the company clearly expressed its intention to call Tango to testify
and offered an explanation for its failure to subpoena him. It also points to inconsistencies in
Tango's inspection notes, the citations, and Budd's testimony as a basis for its allegation of
prejudice. In light of these circumstances and the judge's dismissal of Camara's testimony,
Tango's absence from the hearing may have prejudiced Vermont Slate.
Accordingly, we vacate the judge's finding of a violation and remand to him with
instructions that he reopen the record and permit Vermont Slate to present Tango's testimony
relating to the guarding hazard on the trimmer. At the same time, the judge must reconcile any

443

conflicting evidence and determine if the guarding was adequate to protect a miner standing or
working on the platform next to the trimmer. 4
B.

Citation No. 7720768

MSHA issued Citation No. 7720768 to Vermont Slate for insufficient lighting in an area
of the garage where the control panels were located, alleging a violation of 30 C.F.R.
§ 56.17001. 5 Budd described the area as a "dark closet," a two foot by seven foot open space
next to the garage entrance. Tr. 34. The electrical control panel boxes and first aid supplies were
located in this space. Tr. 34. Budd testified that in order to read the panel boxes, "you had to get
right up in front of them and really look," which he asserted was unsafe if the power needed to be
shut down to a piece of equipment in an emergency. Tr. 35-36. Budd admitted that he could
read the tag on the fire extinguisher which was the subject of Citation No. 7720767 and was kept
in this area, but explained that the extinguisher was located immediately next to the doorway
where there was more natural light from the garage. Tr. 38-40. The Secretary contends that the
area' s lighting was "not sufficient to provide safe working conditions" as required by the
standard because in an emergency, a miner could mistakenly switch the wrong electrical box off
due to the lack oflight. S. Br. at 12.
The judge found that the space in question had no artificial lighting and that the only
lighting in the area was natural light which came into the area through the garage door. 23
FMSHRC at 312. He found that the lighting was insufficient to illuminate the interior space
where the switch panels were located. Id. The judge concluded that Vermont Slate violated the
regulation, affirmed the citation, and assessed a penalty of $55. Id. at 312, 319.
On review, we first note that the judge credited Budd's testimony that the natural light in
the control panel area was not adequate to permit a person to read the labels on the panels.6 A

4

We agree with the Secretary that the record does not support Ve1mont Slate's assertions
that the judge refused to allow it to call Okey Reitter, MSHA's Assistant District Manager, to
testify. First, contrary to the operator's suggestion, there is no indication in the record that at any
time before the hearing, Vermont Slate requested that Reitter be present at the hearing, or that the
Secretary objected to its request, or that the judge considered the matter and sustained the
Secretary's objection. In fact, the record indicates that at the hearing, Camara did not attempt to
call Reitter to testify. Moreover, Reitter's absence from the hearing did not prejudice Vermont
Slate, because Reitter was neither present at the inspection nor a party to the post-inspection
telephone conference between MSHA and the operator.
5

Section 56.17001 provides in pertinent part: "Illumination sufficient to provide safe
working conditions shall be provided in and on all ... switch panels." 30 C.F.R. § 56.17001.
6

We also note that it is undisputed that the only light in the control panel area was
natural light coming from the garage, and that the panels faced the interior of the space, away

444

judge's credibility detenninations are entitled to great weight. Farmer v. Island Creek Coal Co.,
14 FMSHRC 1537, 1541 (Sept. 1992). The Commission has noted that "the general rule [is]
that, absent exceptional circumstances, appellate courts do not overturn findings based on
credibility resolutions." In re: Contests of Respirable Dust Sample Alteration Citations,
17 FMSHRC 1819, 1881 n.80 (Nov. 1995), aff'd sub nom. Secretary ofLabor v. Keystone Coal
Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). Here, we find nothing in the record that would
warrant us taking the extraordinary step of reversing the judge's credibility determinations with
regard to this citation.7 Accordingly, we affirm the judge's finding of a violation.
C.

Citation No. 7720772

Vermont Slate received Citation No. 7720772 for failing to provide a safe means of
access to the trimmer, allegedly in violation of 30 C.F .R. § 56.11001 .8 This is the same trimmer
that was the subject of Citation No. 7720771, located on a stack of pallets about five-feet high.
23 FMSHRC at 315. Budd testified that Camara told the inspectors that an operator accessed the
trimmer by climbing the pallets. Id. Budd also testified that a miner had to stick his feet in the
holes between the pallets and pull himself up. Tr. 79-80. There were no handrails, steps, or
ladder provided for miners accessing the trimmer. 23 FMSHRC at 315. Camara's testimony
corroborated Budd's description of this arrangement. Id.; Tr. 170-71. The judge found that the
pallets, without steps or handrai ls, failed to provide a safe means of access to the trimmer. 23
FMSHRC at 315. He concluded that Vermont Slate violated the standard, affitmed the citation,
and assessed a penalty of$55. Id. at 315, 319.
Notwithstanding Vermont Slate's assertion that the pallets were a safe means of access to
the trimmer (PDR at 3-4), the judge's conclusion that, in the absence of steps or handrails, the
pallets were an unsafe means of access is both reasonable and amply supported by the record.
See Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983) (the
Commission may not "substitute a competing view of the facts for the view [an] ALJ reasonably
reached"). Accordingly, we affom the judge's finding of a violation.

from the doorway.
7

Vermont Slate asserts that the judge's decision to vacate another citation at issue at the
hearing (No. 7720769) based on his decision to credit Camara over Budd undermines Budd's
credibility with respect to Citation No. 7720768. PDR at 2. The Commission has rejected,
however, the "false in one, false in everything" rule of testimonial evidence, noting that "it is not
uncommon, and ce1tainly not reversible error, for the trier of fact to find a witness to be credible
on some, but not other, matters." Ankrom v. Wolcottville Sand & Gravel Corp., 22 FMSHRC
137, 145 n.7 (Feb. 2000), aff'd, No. 00-3374 (6th Cir. Dec. 4, 2000). We thus reject Vermont
Slate's argument.
8

Section 56.11001 provides: "Safe means of access shall be provided and maintained to
all working places." 30 C.F.R. § 56.11001.
445

D.

Citation No. 7720773

MSHA issued Citation No. 7720773 to Vermont Slate for allegedly violating 30 C.F.R.
§ 56.150049 because the slate saw operator was not wearing eye protection. The saw was "a
radial saw arm" with a circular blade about 28 inches in diameter and a half hood over the blade.
23 FMSHRC at 315; Tr. 87-88. The saw operator worked at the control station with the saw in
front of him and positioned the slate between himself and the blade. 23 FMSHRC at 315. The
blade cut thrnugh the slate moving towards the sawyer while water sprayed onto the saw to keep
the dust down. Id. Budd testified that chips of slate could fly off the block posing a haz::u·d of
eye injury while a miner positioned the slate with a crowbar, which could slip, and while a miner
operated the saw. Tr. 91 -92.
It is undisputed that the saw operator was not wearing eye protection. 23 FMSHRC at
315. Camara testified that the common practice at most quanies was not to wear eye protection.
Tr. 158. However, he also admitted that most of the miners at the quarry put on eye protection
whenever inspectors visited the site. Tr. 158, 180. He testified that there was no risk of eye
inj ury because the saw had a hood over the blade and sprayed water, and denied that chips would
fly off the block of slate. Tr. 178-79.

The judge credited Budd's testimony and found that the saw posed a hazard of eye injmy,
and concluded that Vermont Slate violated the standard by not requiring the saw operator to wear
eye protection. 23 FMSHRC at 316. He also found that the evidence was insufficient to support
a finding that the violation was significant and substantial and modified the citation, deleting the
S&S designation. Id. The judge affirmed the citation as modified and assessed a penalty of $55.
Id. at 316, 319.
First, we find no reason to disturb the judge's crediting Budd's testimony that the saw
posed a hazard that required eye protection. Farmer, 14 FMSHRC at 154 1. As for whether
Vermont Slate violated the standard, while the operator argues that it was not aware of the
requirements of section 56.15004,'the record reveals that saw operators at the mine did wear eye
protection. In fact, Camara admitted that saw operators would wear eye protection when MSHA
inspectors visited the site. Tr. 158, 180. Accordingly, we affirm the judge's fmding of a
violation.

9

Section 56.15004 provides: "All persons shall wear safety glasses, goggles, or face
shields or other suitable protective devices when in or around an area of a mine or plant where a .
hazard exists which could cause injury to unprotected eyes." 30 C.F.R. § 56. 15004.
446

E.

Citation No. 7720775

MSHA issued Citation No. 7720775 to Vermont Slate for failing to provide a safety lock
on the hose to a jack hammer, alleging a violation of 30 C.F.R. § 56.13021. 10 Budd testified that
the hose connected to the jack hammer was making a hissing sound and concluded that it was
bleeding air. 23 FMSHRC at 317; Tr. 105. He also testified that he saw slate and other materials
in the area that are used in conjunction with hammering. 23 FMSHRC at 317; Tr. 105. Budd
testified that although the hammer was not being used at the time of the inspection, because the
hammer could be used, the lack of a safety device on the hose to prevent it from coming apart
and causing a whipping action was a violation of the standard. 23 FMSHRC at 317; Tr. 104-05.
In support of the S&S designation on the citation, Budd testified that it was likely that during use
the hose would disconnect if no safety lock was in place, and that if it disconnected, the hose
would whip around out of control and potentially inflict se1ious of even fatal injuries. 23
FMSHRC at 317. Camara admitted that the hose did not have a safety device, but testified that
the hammer was not in use on the day of the inspection. Tr. 182-83. The judge credited Budd' s
testimony and found that Vermont Slate violated the standard. 23 FMSHRC at 317. He also
found that the violation was significant and substantial and assessed a penalty of $140. Id. at
317, 319.
On review, there is no dispute that the connection between the hose and the jack hammer
had no safety lock. We also find nothing in the record that would lead us to overturn the judge' s
crediting of Budd's testimony regarding his observations that he heard air hissing out of the hose
and saw materials used in connection with hammering activities lying in the same area as the jack
hammer. Farmer, 14 FMSHRC at 1541. Finally, the judge's conclusion that the hammer had
recently been used was a reasonable inference for him to draw from Budd's testimony. MidContinent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984) (emphasizing that inferences drawn by
the judge are "permissible provided they are inherently reasonable and there is a logical and
rational connection between the evidentiary facts and the ultimate fact inferred."). Accordingly,
we affirm the judge's finding of a violation.
F.

Citation No. 7720778

MSHA issued Citation No. 7720778 to Ve1mont Slate for failing to provide a miner
trained in first aid at the site during the work shift, alleging a violation of 30 C.F.R. § 56.18010.1 1
The individual trained in first aid was sent to another site because there was not enough work at

10

Section 56.13021 provides: "Except where automatic shutoff valves are used, safety
chains or other suitable devices shall be used at connections to machines of high pressure hose
lines ... and between high-pressure hose lines ... where a connection failure would create a
hazard." 30 C.F.R. § 56.13021.
11

Section 56.18010 provides in pertinent part: "An individual capable of providing first
aid shall be available on all shifts." 30 C.F.R. § 56.18010.
447

the Blissville Quarry. 23 FMSHRC at 318; Tr. 128-29. The judge found that the evidence
regarding this citation was undisputed, that the miner trained in first aid was sent to another
location, and that there was no one at the quarry trained in first aid. 23 FMSHRC at 318. He
rejected Vermont Slate' s argument that the absence of a first aid miner was not a violation of the
regulation because the medical center was only 1.3 miles from the quarry, and concluded that
Vermont Slate violated section 56.18010. Id. The judge assessed a penalty of $55. Id. at 319.
The record evidence clearly supports the judge's finding that Vermont Slate failed to
provide a miner trained in first aid at the Blissville Quarry on the date of the inspection.
Accordingly, we affirm the judge's finding of a violation.
III.

Conclusion
For the foregoing reasons, we vacate and remand Citation No. 7720771, and affirm the
judge's decision with respect to Citation Nos. 7720768, 7720772, 7720773, 7720775, and
7720778.

Theodore F. Verheggen, Ch ·

Robert H. Beatty, Jr., Commissioner

448

Commissioner Jordan, concurring in part, and dissenting in part:
I join the majority in affirming the judge's decision with respect to five of the citations at
issue in this case. However, I would also affirm the judge's finding that the operator failed to
adequately guard the trimmer, in violation of 30 C.F.R. § 56.14107(a). 1 Inspector Budd
presented detailed testimony regarding the lack of guarding of the moving parts of the v-belt
drive of the trimmer. Tr. 64-69. As my colleagues note, slip op. at 2, the inspector clearly
delineated the location of the two pinch points. He testified that the trimmer was unguarded and
that the machine operator would stand within a foot of the v-belt, and "about arm's reach, maybe
a little less" from the pinch points. Tr. 64, 67, 69. He stated that because the v-belt areas were
not guarded, an individual could possibly stick a hand in the v-belt drive or be drawn in from
clothing, possibly resulting in the loss of fingers or a hand. Tr. 64. Consequently, I would hold
that substantial evidence supports the judge's determination, as a reasonable person could
certainly find this testimony adequate to support the judge's conclusion that the trimmer was not
adequately guarded.
My colleagues in the majority find that the judge erred by failing to properly analyze all
of the probative evidence to determine whether the moving parts on the v-belt drive posed a
hazard to miners on the platform who were operating the trimmer. Slip op. at 4. Specifically, the
majority faults the judge's conclusion that the evidence Camara presented on that issue was
irrelevant because the testimony addressed only whether the exposed moving pai1s on the
equipment were hazardous to a person standing on the ground. Id. at 3-4.
While the judge characterized Camera's evidence (which consisted solely of his
testimony and a drawing of the trimmer) as irrelevant, I would call it muddied and inconsistent.
It was not clear from his statements whether he actually ever confronted MSHA's concern about
the dangers of the v-belt to a trimmer operator, because he spent a lot of time discussing how
impossible it would be to reach the pinch points from the ground. Tr. 164, 166, 168-69. He
never clearly explained how a machine operator would be protected from contact with the pinch
point areas. Tr. 162-70. In fact, when asked about the v-belt, Camera testified: "Was not
guarded." Tr. 169. 2
This case is in a procedural posture similar to that of Arch ofKentucky, 20 FMSHRC
1321 (Dec. 1998). There, the Commission found that the judge had improperly sustained an
objection by the Secretary, thus excluding evidence the operator had tried to have admitted. Id.
at 1328. However, a unanimous Commission held that although the judge's evidentiary ruling

1

Section 56.14107(a) requires that moving machine parts be guarded to protect persons
from moving parts that may cause injury.
2

Camai·a did initially insist that the trimmer was guarded, but apparently only in the
front. Tr. 163-65. The inspector clarified that there was a guard on the trimmer itself, but not on
the v-belt drive. Tr. 72-73.
449

was incorrect, his error was harmless, in part because the excluded testimony could not have
overcome the credited testimony of some of the other witnesses (together with other evidence).
Id. at 1328-29. Thus the Commission did not find it necessary to remand the case to the judge so
that he could take into account the improperly excluded testimony. Here as well, it is a needless
exercise to remand the case to the judge to review Camara's testimony once again.

In a perplexing procedural move, my colleagues also vacate and remand this case based in
part on the operator's argument that the judge erred by refusing Camera's request to allow Tango
to testify. 3 At the same time, they admit that the judge "did not directly respond to Camara's
question." Slip op. at 5. I am hard pressed to think of another case where the Commission (or
any appellate body) vacated a decision without even deciding whether the claimed error
occurred.4
It appears as if my co lleagues are actually vacating and remanding this case because they
believe the judge failed to provide the operator, who was appearing prose, with adequate
guidance about its right to call the w itness. Id. This flies in the face of the well-accepted precept
that matters relating to the orderly and expeditious conduct of a trial are within the sound
discretion of the trial judge. Jane C. Avery, Annotation, Propriety and Prejudicial Effect of
Federal District Judge's Granting or Denying Brief Recess During Trial, 21 A.L.R. Fed. 948,
950 (1974); see also 75 Am. Jur. 2d Trial § 180 (1991) (court has supervisory power to control
proceedings at trial, and its authority to control the overall direction of the trial will only be
overturned when it abuses its discretion by acting in an unreasonable, arbitrary, or
unconscionable manner); In re: Contests of Respirable Dust Sample Alternation Citations, 17
FMSHRC 1819, 1843 (Nov. 1995) (under an abuse of discretion standard, a trial judge's decision
will not be disturbed unless it made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances). Given that my colleagues agree with my conclusion
that the judge did not abuse his discretion, slip op. at 4, (the applicable standard of review, with
which they do not quarrel), I fail to understand the legal basis for their ruling.

3

The operator based its request on its assertion that counsel for the Secretary had told
Camera that Tango would be at the hearing. PDR at 1. No evidence in the record supports this
contention, and the Secretary's witness list on her Preliminary Statement does not include Tango.
S. Pre-Hearing Statement.
4

Even if the judge had issued an outright denial when the operator requested Tango's
presence at the hearing, the operator made no showing that it had attempted to produce the
witness itself. Most comts have concluded that a party who relies on its adversary to produce a
witness has not demonstrated the diligence required to the granting of a continuance and that
therefore the trial court acts within its discretion in denying the continuance. Annotation,
Prejudicial Effect, in Civil Case, ofDenial of Continuance to Call Nonappearing Witness Whom
Adversary had been Expected to Call, 39 A.L.R. 2d 1445, 1446 ( 1955); see also 17 Am. Jur. 2d
Continuance § 14 ( 1991) (request for a continuance based on absence of a witness is properly
refused when applicant has not used due diligence to procure the attendance of the witness).
450

My colleagues also suggest that "Tango's absence from the hearing may have prejudiced
Vermont Slate," slip op. at 4 (emphasis added), but stop short of making a finding that prejudice
actually occurred. Thus it appears that Vermont Slate has failed to convince any of us that its
inability to call Tango resulted in substantial prejudice to its case. See Capitol Cement Corp., 21
FMSHRC 883, 889-890 (Aug. 1999) (operator failed to provide convincing evidence that its
inability to question a witness resulted in substantial prejudice). Accordingly, because I conclude
that the judge's actions regarding the request to call Tango as a witness did not constitute an
abuse of discretion, I decline to join my colleagues in vacating and remanding this case with
instructions to the judge to permit the operator to present Tango's testimony.
For the foregoing reasons, I would affirm the judge's finding that the operator failed to
adequately guard the v-belt drive, in violation of30 C.F.R. § 56.14107(a).

451

Distii bution
Shawn Camara
Vermont Unfading Green Slate Company
P.O. Box 210
Poultney, VT 05764
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

452

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

May 10, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2002-109-M
A.C. No. 35-035 16-05502

v.
B & B CRUSHING

BEFORE: Verheggen, Chai~an; Jordan and Beatty, Commissioners

ORDER

BY: THE COMMISSION
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (1994) ("Mine Act"). On December 5, 2001, the Commission received from B & B
Crushing ("B & B") a request to reopen a penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days fo llowing receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On August 13, 2001, the Depaitment of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment (A.C. No. 35-03516-05502) to B & B for the
sum of $321 relating to Citation No. 07986780. In its request, B & B asserts that it did not file a
hearing request to contest the proposed penalty because it believed the civil penalty should have
been included in an Order of Dismissal issued by Administrative Law Judge Jerold Feldman on
July 18, 2001 (Docket No. WEST 2001-408-M). Mot. Apparently proceeding prose, B & B
attached a copy of the dismissal order to its request. Id. , Attach. The dismissal order involved
453

another proposed penalty assessment (A.C. No. 35-03516-0551) issued to B & Bon April 13,
2001, involving Citation Nos. 7986781, 7986782, and 7986784. In the dismissal order, the judge
vacated the three citations and dismissed the proceedings. There is nothing in the record for
Docket No. WEST 2001-408-M to indicate that the dismissal order should have included
Citation No. 07986780.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) (".!WR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the fai lure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Rule 60(b) of the Federal Rules of
Civil Procedure. See 29 C.F.R. § 2700. 1(b) ("the Commission and its Judges shall be guided so
far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In
accordance with Rule 60(b)(1 ), we previously have afforded a party relief from a final order of
the Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC
704, 705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996);
Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).

454

On the basis of the present record, however, we are unable to evaluate the merits of
B & B's position. In particular, B & B provides no explanation or supporting evidence for its
assertion that Citation No. 07986780 should have been included in the dismissal order issued on
July 18, 2001. In the interest of justice, we remand the matter for assigrunent to a judge to
determine whether relief from the final order is appropriate. See Eclipse C Corp., 23 FMSHRC
134, 134-36 (Feb. 2001) (remanding to judge where operator filed request for hearing in one
proceeding and mistakenly believed that request applied to other citations it received at the same
time). If the judge determines that such relief is appropriate, this case shall proceed pursuant to
the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Chai

;e;??/ Co~
~

Robert H. Beatty, Jr.,

455

Distribution
George J. Bora
B & B Crushing
P .O. 3500-181
Sister, OR 97759
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Depai1ment of Labor
llOO Wilson Blvd., 22"d Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

456

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

May 10, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2002-50
A.C. No. 36-08862-03509

V.

ROSEBUD MINING COMPANY

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: THE COMMISSION
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On January 8, 2002, the Commission received from Rosebud
Mining Company ("Rosebud") a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secreta1y that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In its request, Rosebud, through counsel, indicates that on August 30, 2001, the
Department of Labor's Mine Safety and Health Administration ("MSHA") issued to Rosebud a
proposed penalty assessment totaling $553 for seven alleged violations. Mot., Attach. Rosebud
asserts that it did not contest four of the citations and paid their penalties to MSHA, but that it
filed a proposed assessment form ("green card") signed by counsel for the operator on September
25, 2001, contesting the penalties for the remaining three citations. Id. Apparently, however,
MSHA did not receive the green card. Id. · Attached to Rosebud's request is a copy of the green
457

card which indicates that the company intended to contest the penalties (totaling $291) for three
of the listed citations (Citation Nos. 07060863, 07060868, and 07060869). Id., Attach.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) (".!WR") ; Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
pa1iy can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Rule 60(b) of the Federal Rules of
Civil Procedure. See 29 C.F.R. § 2700.l(b) ("the Commission and its judges shall be guided so
far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In
accordance with Rule 60(b)(l), we previously have afforded a party relief from a final order of
the Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC
704, 705 (May 1996); Kinross DeLamar Mining Co. , 18 FMSHRC 1590, 1591-92 (Sept. 1996);
Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).
Rosebud has offered a sufficient explanation demonstrating that it intended to contest the
penalties relating to Citation Nos. 07060863, 07060868, and 07060869, and that the proposed
penalty assessment as to those citations became final as a result of "inadvertence" or "mistake."
See Eighty Four Mining Co., 23 FMSHRC 1102, 1102-04 (Oct. 2001) (granting relief where
operator paid some of the penalties and allegedly submitted green card contesting the other
penalties but MSHA did not receive the green card); Eighty Four Mining Co., 21 FMSHRC 876,
876-78 (Aug. 1999) (same). Rosebud's intention to contest these penalties is supported by the
copy of the green card, signed and dated by counsel, attached to its request, and by its
uncontested assertion that it paid the remaining uncontested penalties. In addition, no other
circumstances exist that would render a grant ofrelief here problematic.

458

Accordingly, in the interest ofjustice, we grant Rosebud's unopposed request for relief to
reopen the penalty assessment that became a final order with respect to Citation Nos. 07060863,
07060868, and 07060869. We remand to the Chief Administrative Law Judge for further
proceedings on the merits. The case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Chai

459

Distribution
Joseph A. Yuhas, Esq.
P.O. Box 1025
Northern Cambria, PA 15714
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W. , Suite 600
Washington, D.C. 20006

460

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

May 10, 2002
RONALD HARRISON
Docket No. CENT 2000-88-DM

v.
SIDCO MINERALS

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: THE COMMISSION
This matter arose under section 105(c)(3) ofthe Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c)(3), when Ronald Harrison filed a discrimination complaint against Sidco
Minerals on December 6, 1999. Over six months later, Chief Administrative Law Judge David F.
Barbour dismissed Harrison 's complaint after Harrison failed to respond to two show cause orders
directing him to file with the judge a copy or restatement of his original discrimination complaint.
Order of Default (June 22, 2000). On July 20, 2001, Harrison filed with the Commission a request
to vacate the judge's default order. Sidco Minerals opposes Harrison's request for relief. SM Mot.
(Aug. 9, 2001).
In his request, Harrison, apparently proceeding pro se, asserts that he never received any
requests from the judge to which he did not respond. H. Mot. at 4. Thus, we assume Harrison is
contending that he either did not receive a copy of the second show cause order or that he
responded to the order but the Commission did not receive his response. We note, however, that
the record contains the certified mail receipt for the judge's second show cause order issued on
May 5, 2000, indicating that it was received and signed for by Harrison on May 9, 2000. In
addition, Harrison provides no explanation for the late filing of his request for relief from the
default order. The remainder of his request goes to the merits of the discrimination case.

The judge's jurisdiction in this matter terminated when his default order was issued on
June 22, 2000. 29 C.F.R. § 2700.69(b). Relief from a judge's order may be sought by filing a
461

petition for discretionary review within 30 days of its issuance. 29 C.F.R. § 2700.70(a). If the
Commission docs not direct review within 40 days of a decision's issuance, it becomes a final
decision of the Commission. 30 U.S.C. § 823(d)(l). The Commission received Harrison's
request on July 20, 2001, almost a year after the judge's default order had become a final
decision of the Commission.
When considering whether relief from a final Commission order is appropriate, we have
found guidance in, and have applied "so far as practicable," Fed. R. Civ. P. 60(b). 1 See 29 C.F.R.
§ 2700. l(b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); Jim Walter Res., Inc. , 15 FMSHRC 782, 787(May1993). In
accordance with Rule 60(b)(1 ), the Commission previously has afforded a party relief from a
final order of the Commission on the basis of "inadvertence" or "mistake." See Kinross
DeLamar Mining Co., 18 FMSHRC 1590- 1590-92 (Sept. 1996). A Rule 60(b) motion "shall be
made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken." Fed. R. Civ. P. 60(b). This one-year time
limit is an outside time limit for motions requesting relief under subsections (1) through (3). Id. ;
Lakeview Rock Prods., Inc. , 19 FMSHRC 26, 28 (Jan. 1997) (holding that requests for relief
under Rule 60(b)( l) must be made within one year of entry of order); see 12 James Wm. Moore,
et al., Moore's Federal Practice~ 60.65[2][a] (3d ed. 1997).
Harrison does not explicitly assert in his request that he is entitled to relief under Rule
60(b). However, we constrne the basis of his request- that he either did not receive the second
show cause order or responded to it and his response was not received by the Commission - as
falling squarely within the coverage of the "inadvertence" or "mistake" provisions of Rule
60(b)(1 ). We therefore conclude that Harrison' s request is not entitled to relief under Rule
60(b)(l) because it was filed over a year after the default order was issued. See Newball v.

1

Rule 60(b) states, in pertinent part:
[T)he court may relieve a party ... from a final judgment, order, or
proceeding for the following reasons: (I) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence
which by due diligence could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a
p1ior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason
justifying relief from the operation of the judgment.

Fed. R. Civ. P. 60(b).
462

Offshore Logistics Int'/, 803 F.2d 821, 827 (5th Cir. 1986) (holding that one-year time limit
under Rule 60 (b) begins to run from date order is issued). Furthermore, Harrison provides no
explanation in his request why he failed to file a timely petition for discretionary review after the
default order was issued. See Haro v. Magma Copper Co., 5 FMSHRC 9, 9-11 (Jan. 1983)
(denying request to reopen final Commission decision where request fai led to adequately explain
its late filing).
Accordingly, we deny Harrison's request for relief under Rule 60(b).

Theodore F. Verheggen, Chai

463

Distribution
Ronald Harrison
P.O. Box 736
Linden, TX 75563
W. Cluistian Schumann, Esq.
Office of the Solicitor
U.S. Depa11ment of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

464

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

May 14, 2002
DISCIPLINARY PROCEEDING

Docket No. D 2001-1

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

DECISION

BY: Verheggen, Chairman; Jordan, Commissioner
This disciplinary proceeding arises under Commission Procedural Rule 80. 1 On
November 21, 2000, the Commission received a disciplimuy referral under Rule 80(a) from a
miner who filed a discrimination complaint with the Depa1tment of Labor's Mine Safety and
Health Administration ("MSHA") and was temporarily reinstated during the pendency of his
case. In the referral, the miner alleges that "there was unprofessional conduct on the part of the
attorneys handling [his] case," inc1uding the failure of his counsel to follow up on overtime pay
of over $13,000 to which he believed he was entitled under the judge's temporary reinstatement
order; and that he was "coerced into making a settlement" of the discrimination case brought by
the Secretary on his behalf. In support of his allegations, the miner attached to his referral copies

1

Commission Procedural Rule 80 provides in part:
(b) Grounds. Disciplinary proceedings may be instituted against
anyone who is practicing or has practiced before the Commission
on grounds that such person has engaged in unethical or
unprofessional conduct. ... (c) Disciplinary proceedings shall be
subject to the following procedures: (1) Disciplinary referral. ...
[A] person having knowledge of circumstances that may warrant
disciplinary proceedings against an individual ... shall forward to
the Commission for action such information . . . (2) Inquiry by the
Commission. The Commission shall conduct an inquiry
concerning a disciplina1y referral and shall determine whether
disciplinary proceedings are warranted.

29 C.F.R. § 2700.80.
465

of notes of several phone conversations with counsel in the Solicitor's Office, and an April 2000
letter from counsel in the Solicitor's Office to the operator's counsel inquiring about the status of
the miner's overtime pay, which the solicitor stated was due under the judge's order of temporary
reinstatement, but which had not been paid to the miner.
This is the second of two disciplinary matters arising from the miner's discrimination
case. In D 2000-1, we considered a disciplinary referral based on a 19-month delay by MSHA
and the Office of the Solicitor of Labor in applying to the Commission for the miner's temporary
reinstatement. 24 FMSHRC 28 (Jan. 2002) ("Disciplinary Proceeding F'). A majority of
Commissioners dismissed the refetTal in Disciplinary Proceeding J.

In reaching our conclusion in this matter, we considered the material submitted by the
miner as well as the record of the Commission's investigation into Disciplinary Proceeding I,
which includes testimony from the Solicitor of Labor, interviews with the miner, and the record
in the underlying discrimination proceeding. Regarding the miner's allegation that he was
"coerced into making a settlement," we find no evidence that the miner was subjected to undue
pressure or compelled, against his will, to settle. We also note that the parties' settlement
agreement was approved by a Commission Administrative Law Judge after a brief hearing.
During the heating, the judge asked whether the settlement disposed of any claims the miner
might have, and was assured that it did. In response to the judge's questions, the miner
confirmed that he had read the agreement, discussed it with counsel, and agreed to it. In his
decision approving settlement, the judge also stated that he confirmed that all the parties
understood and agreed to the settlement agreement. The record of this proceeding clearly
indicates that no coercion occurred.
As for the other allegations made by the miner, even assuming that the allegations are a
true and unbiased recitation of what occurred, we find no indication that any individual attorney
acted unethically.
Regarding the issue of the miner's ove11ime pay, in his decision temporarily reinstating
the miner, the judge awarded the miner his former position with full pay and benefits, which
under Commission case law customarily includes overtime pay. See Sec '.Y ofLabor on behalf of
Franco v. WA. Morris Sand & Gravel Inc., 18 FMSHRC 278, 289 (Feb. 1996) (ALJ); Secy of
Labor on behalfof Walker v. Dravo Basic Materials Co., 12 FMSHRC 1127, 1128 (May 1990)
(ALJ). As reflected in the April 2000 letter from the miner's attorney in the Solicitor's Office to
the operator's counsel, the operator failed to include overtime in the checks it sent to the miner
pursuant to the judge's reinstatement order.
The miner maintains that he contacted the solicitor by phone to ask about the letter that
was sent to the operator's counsel, and that he was told there had been no response. The miner
recalls the solicitor telling him that he (the solicitor) had not had the time to follow up on it, and
that it would be better to do so after trial. The miner's case was to have gone to trial during
August 2000, but settled the same day. A hearing was held during which the judge approved the

466

parties' settlement agreement. Although the agreement the miner signed states that "he waives
any further claim to payment pursuant to [the temporary reinstatement order]," the miner insists
that he was not told at any time before settlement that a settlement agreement would include or
cover past-due overtime payments. In the weeks following settlement, the miner recalls that he
asked attorneys in the Solicitor's Office about the overtime pay, but was told that under the
settlement agreement, he was not entitled to any such money.
Notwithstanding whether the miner would have been able to prove entitlement to
overtime pay,2 we cannot overlook the settlement agreement that the miner signed. The
agreement clearly states that the miner ''waives any further claim to payment pursuant to [the]
Order of Temporary Reinstatement." The agreement also includes a separate Release and
Waiver of All Claims, which contains very comprehensive language in which the miner releases
the operator "from any and all actions, claims, causes of action, demands, costs and expenses."
Furthermore, as we state above, the judge who approved this settlement agreement questioned
the parties and satisfied himself that the parties, including the miner, understood the settlement.
It is difficult to conceive how anyone could read the releases in the settlement agreement
and sign the document if they felt there was more due to them than the consideration offered in
the agreement, particularly in light of the judge's questions regarding whether the parties
understood the settlement. If anything, the release ought to have put the miner on notice that it
was his last chance to resolve any remaining matters, and the judge's questions provided him the
opportunity to raise any lingering concerns.
We will refrain from responding to all of the assertions made in our colleague's opinion,
but feel compelled to speak to some of the more serious allegations. First, our colleague's
opinion suggests that the mere existence of Disciplinary Proceeding I (which was based on the
19-month delay in filing the application for temporary reinstatement) precluded the ability of
attorneys in the Solicitor's Office to objectively recommend a fair settlement. Our colleague
postulates that attorneys in the Solicitor's Office wanted to settle the case to avoid a trial where
2

Our colleague contends the miner's unrebutted testimony at the temporary
reinstatement heating proved his entitlement to 20 hours a week overtime. Slip op. at 14-15 &
n.14. We disagree. Pleadings filed on behalf of the miner, both before and after that hearing
(including the disc1imination complaint and a declaration by the Solicitor representing the
miner), allege entitlement to only half as much overtime. Moreover, due to the necessarily
truncated nature of temporary reinstatement proceedings, parties must not be expected to conduct
a preliminary adjudication of the merits of a discrimination claim. Sec '.Y ofLabor on behalfof
Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (Aug. 1987) ("[t]he scope of a
temporary reinstatement hearing is narrow, being limited to a determination by the judge as to
whether a miner's discrimination complaint is frivolously brought"), affd, 920 F.2d 738 (11th
Cir. 1990). To expect parties to go into a temporary reinstatement proceeding, ready to litigate
not only the entitlement to reinstatement but also the dollar amount of damages at issue should a
violation ultimately be found, would unduly burden the proceeding.
467

information adverse to their interests in the disciplinary proceeding might surface. Slip op. at
6-7, 10. This speculative theory is based on the unsupported assumption that the hearing would
somehow have focused on the Secretary's delay in filing the tempormy reinstatement application,
and not on whether the miner was fired in violation of section 105(c). We choose not to engage
in any such speculation, and refuse to draw any such conclusions.
To the contrary, we find that the record before us belies Commissioner Beatty's
suggestion that the attorneys in the Solicitor' s office rushed to settlement to avoid a trial that
would reveal information harmful to them. Conversations about settling the discrimination case
occurred many months before the case actually settled in August 2000, and before the
Disciplinary Refenal was filed on May 17, 2000. In fact, the judge himself, in his April 12, 2000
Prehearing Order, directed the parties "to confer for the purpose of discussing settlement."
Commissioner Beatty also asserts that the attorneys in the Solicitor's Office pressured the
miner to settle the case. However, the notes submitted by the miner reveal no undue pressure or
improper conduct. Indeed, they depict dialogue typical of the kind that occurs between a lawyer
and client on the subject of settlement. In one conversation, which according to the miner's
notes occurred about three weeks before the case settled, the lawyer asked the miner what he
would accept to settle the case. The miner responded with a figure. The lawyer explained the
problems of proof he expected to confront at trial and proposed a lower figure, suggesting the
employer would be more inclined to consider this to be a reasonable offer. The miner agreed to
the figure and the case ultimately settled for this amount. 3
Finally, our colleague implies that an attorney from the Solicitor's office might have
pressured the miner into accepting the settlement by suggesting that a hearing on the miner's
105(c) complaint might lead to the resurrection of the l lO(c) investigation of the miner. We find
this assertion completely unfounded and without record support. According to the miner's notes,
one of the attorneys did mention that the operator could argue that the miner should be held
personally liable for the safety violations that led MSHA to investigate the miner under section
11 O(c). However, the attorney was simply repeating what the operator had argued at the
tempora1y reinstatement hearing. In any event, the miner's notes state that one of the other
attorneys from the Solicitor's Office had previously assured the miner that MSHA had already
decided not to bring a 1 lO(c) charge against him, and that he had been "let off the hook."

3

Commissioner Beatty also makes the serious charge that attorneys in the Solicitor's
Office refused to relay the miner's settlement offer. Slip op. at 12-13. Our colleague cites
nothing in the record to support this assertion, and we have found none. The miner's notes
describe a conversation in which one of the attorneys reacts to the miner' s settlement proposal
with skepticism, but says nothing about refusing to convey it. The notes also reflect a subsequent
conversation that same day between the miner and another attorney. The attorney expressed
concern that the offer was so high that it would stymie settlement discussions. The miner told
him he would consider a lower figure and call him back.

468

In light of the foregoing considerations, we thus conclude that assignment of this matter
to an administrative law judge for further proceedings is unwarranted. Accordingly, this
disciplinary referral is terminated.

Theodore F. Verheggen, Chairm6/

469

Commissioner Beatty, dissenting:
I respectfully dissent from my colleagues' decision to dismiss this proceeding without

further investigating the complaint made by the miner regarding the quality of the representation
he was provided by the Solicitor's Office with respect to settlement of his disc1imination
complaint and economic reinstatement pending resolution of his complaint.
The background of this proceeding must be fully considered to understand the gravity of
the miner's complaint. Much of that factual background is set forth in the opinions of the
Commission in Disciplinary Proceeding, 24 FMSHRC 28 (Jan. 2002) ("Disciplinary Proceeding
I"). In short, despite the Mine Act's requirement that the Secretary of Labor act expeditiously on
a discharged miner's request for temporary reinstatement under section 105(c), the Secreta1y did
not act on the miner's request for temporary reinstatement for 19 months. 1 Upon the
application's eventual filing, a Commission administrative law judge ordered the operator to
reinstate the miner and the Commission quickly affirmed that order. The miner did not return to
work, but instead the parties agreed to economic reinstatement which, according to the judge's
order, was supposed to return the miner to the same economic position he was in before his
termination.
In light of the 19-month delay in the filing of the application - a period of time so
contrary to the intent of the Mine Act's temporary reinstatement provision that it stands as a
monument to the Secretary's failure to comprehend the purpose of the remedy - I became
concerned that Department of Labor attorneys may have been involved in failing to timely act
upon the miner's reinstatement application. Consequently, I filed a disciplinary refenal with the
Commission on May 17, 2000, which eventually resulted in Disciplinary Proceeding I. It is
important to note that my refenal to the Commission was pending for nearly 3 months before the
scheduled hearing date on the merits of the miner's discrimination complaint, August 15, 2000.

Ironically, on the day of the hearing, the miner, at the Secretary's insistence, settled his
case with the operator. Approximately 3 months later, the miner filed a disciplinary refe1rnl with
the Commission, taking issue with the representation he was provided by the Solicitor's Office
attorneys in connection with the settlement agreement, and, more importantly, the terms of the
settlement agreement as they related to the money he was owed as part of his temporary
economic reinstatement.
In response to the disciplinary referrals, the former Solicitor of Labor, Henry Solano,
appeared before the Commission to discuss both the miner's disciplinary referral and
Disciplinary Proceeding I. During our meeting the Solicitor attempted to explain away the first

1

As I outlined in my dissenting opinion in Disciplinary Proceeding I, the miner's
discrimination complaint against the operator here was clearly not frivolous, thus satisfying the
extremely low standard necessary for the Secreta1y to seek immediate temporary reinstatement
on behalf of the miner. 24 FMSHRC at 36, 46.
470

12 months of the 19-month delay because of a potential conflict of interest. According to the
Solicitor, his agency made a decision to forego pursuing temporruy reinstatement for the miner
because of an alleged investigation by MSHA for possible 110(c) charges against the miner. He
opined that while MSHA was investigating the miner for a potential l lO(c) charge, the case
presented a potential "conflict of interest" between the Solicitor's obligation to represent its
client, MSHA, and their statut01y obligation to pursue temporary reinstatement for the miner. 2
Because the majority in Disciplinary Proceeding I refused to conduct a complete investigation
into Salono's explanation, no one outside the Department of Labor, including the miner, knows
why or how the investigation could have resulted in a delay of an entire year.
It is only after a year had elapsed that MSHA decided to forward the case to the regional
Solicitor's Office to process the miner's discrimination case, its section 1 lO(c) investigation of
the miner having apparently concluded without the filing of charges against him. Disciplinary
Proceeding/, 24 FMSHRC at 31. Notwithstanding the previous 12-month delay, the Solicitor's
Office held the case an additional 7 months before acting on the miner's temporary reinstatement
application. Salono again attempted to explain away this delay by suggesting that his office
needed to conduct an additional investigation into the miner's complaint because they were
concerned about the strength of the case.
The factual background of this case makes it unlike any case that has ever come before
the Commission. In spite of the Solicitor's Office slothful lawyering during the 19 months that
led up to the miner's temporary reinstatement,3 my colleagues in the majority now choose to treat
the miner's post-settlement complaints as if he was any other litigant before the Commission,
merely expressing the normal after-the-fact "buyer's remorse." In my opinion, when the
circumstances in which the miner was put by the Depattment of Labor are fully considered, the

2

As I stated in Disciplinary Proceeding I, the "conflict of interest" excuse was simply
one of the ever-changing explanations offered by the Solicitor's Office of how and why it took
19 months to file a temporary reinstatement application. It should be noted that previous
explanations included: a lengthy investigation of the miner's allegations, requests for additional
information by the district and the Solicitor's Office, a delay in fotwarding the case to the
regional Solicitor's Office, and a 7-month delay in reviewing and filing the temporary
reinstatement application by the regional office. We were also informed by the Solicitor that
regardless of how dilatory his office was in filing a temporary reinstatement application, it was
an exercise of prosecutorial discretion and therefore not subject to the Commission's disciplinaty
rules. Finally, the Solicitor offered the conflict of interest explanation that provided the impetus
for my colleagues' decision to dismiss the disciplinary referral in Disciplinary Proceeding I. 24
FMSHRC at 41-43.
3

In Disciplinary Proceeding I, my colleagues in the majority described the delay in the
filing of the temporary reinstatement application, as, inter alia, " unacceptable, inexcusable, and
wholly avoidable," and based in part on the Solicitor's Office failure to properly implement the
discrimination provisions of the Mine Act. Disciplinary Proceeding I, 24 FMSHRC at 31.
471

majority's decision to summarily dismiss this proceeding without seriously examining the
al legations does a grave disservice to the mining community that looks to the Commission as an
objective evaluator of cases involving the Secretary.
Before addressing the specific allegations made by the miner and the inadequacy of the
majority's response in light of the attention those allegations merit, I cannot leave unremarked
upon the extremely truncated nature of the Commission's "investigation" of the miner's
disciplinary referral. In reaching its decision, the majority had before it for consideration a very
limited amount of the information relevant to the miner's allegations. Quite conspicuous by its
absence is the most probative information in the case: the recollections of the three Solicitor's
Office attorneys directly involved in the settlement. During our investigation, I attempted to fill
that glaring hole in the record by preparing a sho1t set of specific interrogatories that I suggested
we submit to the three attorneys. An abridged version of those questions is attached as Appendix
A. As the record in this case reflects, we never received any of the information sought because
the majority simply refused my attempts to submit these questions to the Solicitor's Office.
As a result of the majority's decision to limit our investigation into the miner's
disciplinary referral, we are without any first-hand account of how and why the Solicitor's Office
attorneys came to strongly recommend settlement of the miner's case, and what steps they took
to quickly effectuate the settlement agreement that is now the subject of controversy. The
majority's decision to dismiss this matter without a complete look at what occurred, in my
opinion, does nothing to exonerate those involved in representing the miner, as a dismissal of a
proceeding properly conducted normally would. 4
A.

The Questions Surrounding the Miner's Agreement to Settle the Cases

The miner, in his letter referral, alleges he was "coerced" into settling his cases. In this
case, the Commission should have simply followed the same practice it historically has followed
when reviewing disciplinaiy referrals against individuals in the private sector, that is, to establish
what it expects of those practicing before us, and conduct an objective inquiry into the matter
designed to gather the facts necessary to establish whether the person met the expected standard.
See, e.g., Disciplinary Proceeding, 22 FMSHRC 1289, 1289-90 (Nov. 2000) (dismissing
disciplinary referral because allegations, even if true, did not support disciplinary proceeding);
see also In the Matter of Connie Prater, 22 FMSHRC 733, 738-39 (June 2000) (ALJ) (at
Commission's direction, examining practitioner's conduct at issue and whether it violated
Commission's disciplinary rules).

4

I emphasize at the outset that I have no opinion on the propriety of the conduct of the
Solicitor's Office attorneys involved in the settlement. There simply is not a sufficient record on
which to base any opinion, positive or negative. Consequently, I believe the majority does a
disservice to these individuals in giving such plainly limited consideration to the miner's
complaints.
472

In this proceeding, a case not involving the private sector but instead involving the
conduct of attorneys in the Solicitor's Office, the majority has decided to do neither. My
colleagues do not bother to discuss what it expected of the Solicitor's Office attorneys in
recommending that the miner settle his cases, or the allegations raised by the miner concerning
how the Solicitor's Office effectuated the settlement. Instead, the majority, citing the notes
provided by the miner and the Commission's limited investigation in the first disciplinary
proceeding, as well as the miner's acquiescence to the settlement before the judge, concludes that
there was no "coercion" because there is "no evidence that the miner was subjected to undue
pressure or compelled, against his will, to settle." Slip op. at 2.
Leaving aside for now how incomplete the record is in support of the majority's factual
conclusion, the question of whether this, or any, disciplinary proceeding should be dismissed
does not hinge on whether the evidence supports the exact terminology chosen by the person
making the referral, especially when that person is not even a practitioner before the
Commission. Rather, we should look to our own disciplinary rules, which require that
"[i]ndividuals practicing before the Commission and Commission Judges shall conform to the
standards of ethical conduct required of practitioners in the courts of the United States." 29
C.F.R. § 2700.80(a). The majority, inexplicably, has failed to so in this case. 5
Looking to the American Bar Association's ("ABA") Model Rules of Professional
Conduct as a general guide to the "standards of ethical conduct required of practitioners in the
courts of the United States,"6 see 29 C.F.R. § 2700.80(a), a number of the Model Rules govern
what transpired between the miner and the Solicitor's Office attorneys with respect to the
settlement. For instance, a lawyer is expected to explain a matter to a client in a manner
sufficient to permit the client to make an informed decision. ABA Model Rule 1.4(b). Also,
according to ABA Model Rule 2.1, the lawyer is required to exercise independent professional

5

As discussed in Disciplinary Proceeding I, the Solicitor has claimed that no attomeyclient relationship exists between the Solicitor and a miner in a discrimination case.
24 FMSHRC at 34. However, the Commission pointed out that the Solicitor had failed to inform
the miner in this case of that position, so the Solicitor's Office would not be permitted to escape
the duties the attorney-client relationship imposes upon the attorney. Id. at 31 -35. Included in
those duties are the ethical obligations that govern the attorney-client relationship. See, e.g.,
American Bar Association Model Rules of Professional Conduct I. I to 1.17 (200 I) ("ABA
Model Rules"). Clearly, permitting an attorney to appear before the Commission "on behalf of a
miner," as Solicitor' s Office attorneys do in discrimination cases, without having to adhere to the
ethical obligations imposed upon attorneys, would result in a huge loophole in the Commission' s
disciplinary rules.
6

Reference to the Model Rules is also appropriate because the Commission is without
information as to the states the involved attorneys are admitted in, and the fact that the miner
Jived on one state while the attorneys were based in one or more other states.
473

judgment and render candid advice, drawing upon not only the law but other factors that may be
relevant to the client's situation.
Of course, because the Commission has failed to conduct a complete investigation into
the miner's allegations, we do not have the info1mation necessary to draw any reasoned
conclusions regarding the extent to which, if at all, these or other ethical guidelines were actually
violated. What we do have is evidence that should have raised a red flag with the maj01ity that a
thorough investigation was warranted. Most significantly, there is no disputing that the
Solicitor's Office found itself in an awkward position here, representing a miner in a
discrimination case when it had failed to act on his temporary reinstatement application for 19
months. This fact alone should have been a cause for concern to the majority because the
Solicitor's Office continually recommended settlement while its actions were under review in
Disciplinary Proceeding I for that extended delay. 7
In an effort to provide further guidance with respect to the independent professional
judgment an attorney is required to exercise, ABA Model Rule 1.7 recites extensive requirements
designed to prevent representational conflicts from arising, both between the interests of the
attorney and the client and between the different clients of the attorney. 8 Here, both types of

7

That the Solicitor's Office began actively promoting settlement some 3 months before I
filed the original disciplinary referral hardly absolves it of a conflict, the majority's suggestion to
the contrary notwithstanding. Slip op. at 4. It surely became apparent to the Solicitor's Office
well before that time that, as long as the miner's case remained unresolved, it would reflect
poorly upon the Solicitor's Office.
8

ABA Model Rule 1.7 states that:
(a) A lawyer shall not represent a client if the representation of that
client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation
will not adversely affect the relationship with the
other client; and

(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer's responsibilities to
another client or to a third person, or by the lawyer's own interests,
unless:
(1) the lawyer reasonably believes the representation
will not be adversely affected; and
474

conflict were arguably present. First, settlement of the miner's case eliminated the need for a
trial on the merits of the miner's discrimination complaint, at which one of the primary issues
may have been the reasons for the 19-month temporary reinstatement application delay also at
issue in Disciplinary Proceeding l. 9 As mentioned, the first 12 months of delay was attributed to
MSHA, which, like the miner, was a client of the Solicitor's Office.

In addition, the other 7 months of delay was attributable to the Solicitor's Office itself. In
defending itself in Disciplinary Proceeding I, the Solicitor's Office took the position that the
delay was the result of the weakness of the miner's case. Of course, settlement of the miner's
discrimination case before trial prevented that claim from being tested.
Despite the fact that both MSHA, a client of the Solicitor's Office, as well as individual
attorneys in that office, stood to be in a better position in Disciplinary Proceeding I from
settlement of the miner's case, to my knowledge none of the safeguards in Model Rule 1.7 that
should have protected the miner's interests in light of the conflicts faced by his attorney, the
Solicitor's Office, were in place at any point during which settlement was being considered. In
addition, the Solicitor's Office did not mention the Disciplinary Proceeding I and the
settlement's relation to it to the judge who approved the settlement agreement, and it is
unrealistic to expect the miner to have ever recognized the import of the issue. Thus, a case that
was delayed for a year by the Solicitor's Office, allegedly because of concerns that it faced a
conflict in its dual representation of the miner and the Secretary, was nevertheless settled by the

(2) the client consents after consultation. When
representation of multiple clients in a single matter
is undertaken, the consultation shall include
explanation of the implications of the common
representation and the advantages and risks
involved.

(Emphasis added).
9

Amazingly, the majority questions whether the issue of the Secretary's delay in filing
for temporaiy reinstatement, and bringing the miner's discrimination case, would have been an
issue at the scheduled hearing. Slip op. at 4. I believe the operator's 40-page motion for
summary decision, which was almost entirely based on the Secretary's failure to bring the case in
a timely manner, and was pending at the time of settlement, provides more than sufficient
grounds to suggest that the operator was not going to drop the issue. The operator clearly would
have continued arguing that the delay prejudiced its ability to defend against the miner's claims.
Interestingly, in another MSHA W estem District case, with even less of a delay, the Secretary
eventually bowed to such a defense. See United Metro Materials, 24 FMSHRC 140, 141 (Feb.
2002) (vacating direction ofreview that Commission had issued sua sponte upon Secretary's
subsequent vacation of citation, leaving standing judge's decision dismissing proceeding on
ground that Secretary unreasonably delayed 14 months in proposing a penalty).
475

Solicitor's Office in the face of a direct conflict of interest. In my opinion, nothing shines a
brighter light on the credibility of the Solicitor's Office's reason for the delay in bringing the
miner's case than the realization that, in spite of the fact that the Solicitor's Office's was the
subject of an investigation for ethical violations in its representation of the miner, Solicitor's
Office attorneys not only continued to represent the miner, but also counseled the miner to settle
the case before trial.
The m ajority's willingness to dismiss the miner's complaints regarcling the valiclity of the
settlement in this case leaves us to ponder two important questions: if the miner's discrimination
case had been heard by a judge on the merits, or ifthe Commission would have conducted a
complete investigation into the attorneys' involvement, what would we have learned about the
validity of the Solicitor's excuse that MSHA took 12 months to conduct al lO(c) investigation,
and more importantly what was the true strength of the miner's discrimination case against his
employer? In my view, answers to these questions would have laid the groundwork for a
significantly different outcome in this case, and the disciplinary referral tossed out by the
majority in Disciplinary Proceeding I.
The majority has also clismissed the referral without giving objective consideration to the
miner's notes that reflect various conversations he had with the Solicitor's Office attorneys.
Specifically the miner's notes reflect that:

(1) Despite making the miner wait 19 months before filing his
temporary reinstatement application, in the conversation informing
the miner of the reinstatement ordered by the judge, the Solicitor's
Office trial attorney immediately raised the prospect of settling the
case, months before trial and even before the commencement of
discovery, as the complaint had not yet been filed;
(2) Less than 2 weeks later, the same attorney raised the possibility
that the Secretary could drop the case;
(3) The attorney later informed the miner that the judge did not
seem sympathetic to the miner's position, and to get around that
they would need to make it very clear that the operator's witnesses
were "bad actors;"
(4) Within days after the filing of the original disciplinaiy referral,
the trial attorney requested the miner to specify a compromise back
pay figure. However, the attorney did not relay to the operator the
miner's offer to accept approximately 75% of his estimated lost
earnings, despite the miner's request that the attorney do so.
Instead, another Solicitor's Office attorney called the miner that
same day to persuade him to accept "a figure a lot lower." The

476

miner was told by still another Solicitor's Office attorney that,
having experience in many cases like the miner's, such cases settle
for $15,000 or $20,000, and the lower figure is what eventually
made its way into the settlement agreement.
The majority opines that the dialogue that occurred between the miner and the Solicitor's
Office attorneys was typical of the kind that occurs between lawyer and client on the subject of
settlement. Slip op. at 4. I disagree. The miner's notes reflect that he requested that the trial
attorney make a settlement offer of $50,000, yet there is no record evidence of the operator being
provided with that offer, or any other amount that it rejected as excessive. Moreover, even if the
figure suggested by the miner may have been deemed excessive by the operator if it had been
forwarded, my colleagues' unquestioning treatment of the handling of the matter by the
Solicitor's Office is hardly appropriate. The significantly lower $15,000 figure the Solicitor's
Office encouraged the miner to offer to settle the case for was accepted by the operator. The
wisdom of choosing thal figure as an opening offer, which is what apparently occurred, speaks
for itself in light of the operator's acceptance of it.

In addition to his notes, the miner reported to the Commission that he was told by one
Solicitor's Office attorney that the judge sent a "clear signal" at the miner's reinstatement hearing
that "unless there is a ton of new evidence" they would have a "steep uphill battle" prevailing at
trial on his discrimination claim. 10 The miner describes the pressure as coming to a head on the
day of the discrimination hearing, to such an extent that he felt "bulldozed" into agreeing to settle
his cases.
As the foregoing shows, the miner is alleging that the Solicitor's Office attorneys did not
base their settlement recommendations solely on their estimates of the strength of the miner's
discrimination case. 11 I am especially concerned about the miner's allegation that the third
Solicitor's Office attorney indicated that, at trial, the operator could urge that section 1lO(c)
charges be pursued against the miner, and the judge would permit into evidence support for that

10

However, a review of the transcript of the hearing, as well as the judge's subsequent
decision, reveals no such signal. At a minimum, the Commission should have requested the
attorney to provide his version of the events.
11

A number of the statements appear to be without support under Mine Act precedent or
usual trial procedures.

477

proposition. 12 I am aware of no precedent which would permit such to occur. The miner, on the
other hand, who was not an attorney, could not be expected to know this.
It is important to recognize that the facts contained in this decision are only the miner's
version of what occurred in this case as we do not have any accounting of the settlement
negotiations from the attorneys involved. It is just as important to recognize, again, that we do
not have those accounts because the majority has steadfastly denied my attempts to seek
information from the Solicitor's Office regarding their attorneys' involvement in the case. In my
opinion, this single fact stands as a true testament of the validity of the majority's decision to
dismiss the miner's referral without first ascertaining those attorneys' versions of the events
stmounding the settlement negotiations.

Simply stated, this proceeding should not have been dismissed by the majority with so
many questions left unanswered. There is no excuse for the majority's reluctance to submit a
series of shorl questions, such as those set forth in Appendix A, lo the three attorneys involved
requesting, at a minimum, some response to allegations raised by the miner. Without this
information, the majority's conclusion about the conduct of the Solicitor's Office attorneys
simply lacks the necessary evidentiary support expected of Commission decisions. Under the
Mine Act, the Commission's factual conclusions must be suppo1ted by substantial evidence on
the record as a whole to be upheld on review. 30 U.S.C. § 816(a)(l). Here, the majority's
decision to stop the inquiry into the miner's referral before developing the entire record not only
deprives the miner of his right to have his complaint completely investigated, but also calls into
question the Commission's willingness to enforce its disciplinary rules against individuals in the
Solicitor's Office.
B.

The Overtime Pay Issue

Regardless of how the majority views the miner's allegations regarding the Solicitor' s
Office attorneys' efforts to bring about a settlement of the case prior to the hearing, it is hard to
understand the majority's acceptance of the attorneys' conduct with respect to the overtime pay
owed the miner during his economic reinstatement. However, similar to its treatment of the
miner's coercion allegation, the majority treats his complaints regarding the overtime pay issue
as if he was any other miner appearing before the Commission complaining about the terms of a
settlement into which he entered. And, just as we saw in Disciplinary I, the majority has again

12

The majority claims this to be "unfounded and without record support." Slip op. at 4.
My colleagues are mistaken. According to the miner' s notes, which are a matter of public record,
he was clearly left with the impression from the conversation that section l lO(c) charges against
him remained a live issue. The majority also supports its decision to terminate the proceedings
by cherry-picking the record to find an earlier conversation in which another of the Solicitor's
Office attorneys had assured the miner that MSHA would not bring section 110(c) charges. Id.
Unlike the majority, I will not impute to the miner the sophistication necessary to discern which
of the Solicitor's Office attorneys was more accurate.
478

refused to conduct a complete inquiry into the allegations raised in the miner's disciplinary
refen-al in spite of the fact that many unanswered factual questions cry out for a continued inquiry
into this matter.
As the record indicates, and the majority acknowledges, within weeks of his economic
reinstatement the miner alerted the Solicitor's Office attorney representing him that the payments
he was receiving from the operator did not include any overtime pay. 13 The miner's unrebutted
testimony at the reinstatement hearing was that he was working 20 hours of overtime per week at
the time of his discharge. Consequently, in a letter dated April 14, 2000, his attorney wrote the
operator's counsel citing that, under Commission law, the miner was due overtime pay. Even
though the settlement agreement would not be entered into for another 4 months, the
Commission has no further evidence that the miner's attorney did anything more to pursue the
ove1iime issue with the operator. Further, there is no evidence that the attorney ever raised the
ove1iime issue with the judge. 14
According to the miner, he was provided with a number of excuses for the Solicitor's
Office failing to address the overtime issue. For example, when he raised the issue with the trial
attorney in June 2000, after the April 14, 2000 letter, the trial attorney responded that he had been
too busy to deal with the matter. The attorney opined that it may be best to raise the issue with
the judge after the hearing on the miner's discrimination complaint.
Next, the miner alleges that, approximately a week before the settlement was reached, he
again raised the overtime issue with his counsel, but was told it was not important at that time.
There is no evidence in our limited record that the issue was ever raised as part of the settlement
discussions.

13

As the majority states (slip op. at 2), the judge awarded the miner his former position
at the same pay and benefits, which under Commission law includes overtime pay.
14

The majority clearly errs when it suggests that the miner would have to "prove" his
entitlement to overtime pay. Slip op. at 3. Evidence on the issue of overtime pay was submitted
by the Secretary through the miner's testimony at the reinstatement hearing, and was not rebutted
by the operator. Consequently, under the terms of the judge's order and Commission case law
cited by the majority (slip op. at 2), the miner was plainly entitled to overtime pay as part of his
economic reinstatement. The only question was whether the Solicitor's Office would see fit to
advance his claim to it, beyond of course the letter the Solicitor's Office sent to the operator
setting forth the exact same explanation why the miner was due 20 hours of overtime per week.
In light of the foregoing, I simply cannot understand why my colleagues in the majority, who
affirmed the judge's decision temporarily reinstating the miner at the same pay and benefits, now
find it necessary to cull the record for other evidence that the miner was due 10 hours of overtime
pay per week, not 20. See slip op. at 3 n.2. To what end? The issue before us is whether the
miner was adequately represented in his pursuit to recover any overtime pay during his economic
reinstatement.

479

The miner further contends that, after the settlement, he asked another Solicitor's Office
attorney about the ove1time pay, as he thought it remained a live issue notwithstanding the
settlement. At that point he received an acknowledgment from that attorney that the issue had
been forgotten during the settlement agreement discussions. The miner steadfastly contends that
he was never told, prior to the settlement, that the agreement would include or cover any money
for the past due ove1time payments.
For my colleagues in the majority, the terms of the settlement agreement are enough to
dispose of the miner's claim that he did not realize that the agreement included his outstanding
claim to ove1t ime payment during his economic reinstatement. Slip op. at 3. The majority finds
that because the language of the settlement releases the operator from further claims under the
reinstatement order, and contains comprehensive language ending the litigation, "(i]t is difficult
to conceive how anyone could read these releases in the settlement agreement and sign the
document if they felt there was more due to them." Id.
I find several things troubling about the majority's approach on this issue. First, the
majority treats the issue before us as one of contract, as if the miner were seeking further
compensation from the operator. As he is not, resort to the terms of the agreement hardly
disposes of the miner's claim that he received poor representation in entering into an agreement
by which he forfeited his right to the overtime pay due him.
Secondly, the terms of the settlement agreement are not as clear on the overtime issue as
the majority apparently views them. As the majority acknowledges, the miner waived "further
claim to payment pursuant to" the temporary reinstatement order. Id. In the miner's eyes, his
claim to overtime pay was not a "further" claim to payment, as in a new one; rather, it was an
existing claim, made months previous. Buttressing the miner's belief was what he had been told
by the Solicitor's Office attorney with whom he discussed the issue: that it was best addressed
after the upcoming hearing.
Instead of a hearing on the merits on the day scheduled, however, the judge heard the
parties' motion to settle the case. I do not believe that the miner, as a layman, should have been
expected to comprehend that what was occuning that day was nullifying what the attorney had
told him previously regarding how it would be more appropriate to raise the overtime pay issue at
some later time. The majority Commissioners, though, disagree.
Conspicuously absent from the majority's analysis is any discussion of whether the
Solicitor's Office even attempted to explain to the miner the ramifications of the settlement
agreement with respect to his outstanding claim for economic reinstatement overtime pay. The
disciplinary rnles set forth the standards of communication expected of a lawyer advising a

480

client. 1s Consequently, the terms of the settlement agreement are not by themselves dispositive
of the issue before us.
My colleagues and I clearly disagree on the issue of whether the miner really understood
the legal mumbo-jumbo in the settlement agreement and release, and how that language
ultimately effected his right to a post-settlement recovery of the overtime compensation he was
entitled to. But, if we simply take a common sense approach to this issue and review the
numbers involved, we see strong evidence that it was unlikely the miner actually understood he
was waiving his right to payment for overtime regardless of his decision to sign the agreement.
For example, during the Commission's cursory investigation, the miner provided his
estimate of the overtime compensation he believes he was entitled to receive, based on the 20
hour per weeks of overtime the Solicitor's Office used in its letter to the operator. The miner
calculated that over the course of his 6-month economic reinstatement he was entitled to $13,260
in overtime pay. While standing alone this is a significant sum, it becomes much more so when
viewed in light of the total amount the miner received from the settlement: $15,000. It is
important to remember that the miner was out of work for a total of 19 months before his
application for temporary reinstatement was processed by the Secretary. During this time period,
assuming a typical 40 hour work week, the miner would have logged approximately 3040 work
hours. lfwe deduct the ove11ime pay the miner and the Solicitor's Office alleged the miner was
entitled to ($13,260) from the total settlement ($15,000), we find that the miner then would have
settled the case for $1,740, or 57 cents for each hour oflabor he would have provided ($1,740
divided by 3040 hours).

In spite of these alarming figures, the majority maintains that this miner was fully aware
of the compensatory terms of the agreement he was signing. Given all that this particular miner
has been through, it is startling to me that the majority would suggest that he knowingly agreed to
a settlement amount that paid him pennies on the dollar for his labor. It seems just as likely to
me that because of the confusing nature of the proceedings, 16 and representations made by the
solicitors, the miner truly believed that the overtime issue would survive the settlement. 17 As I

is According to ABA Model Rule l.4(a), a lawyer is to keep a client "reasonably
informed about the status of a matter and promptly comply with reasonable requests for
information." Moreover, Model Rule l .4(b) goes on to require a lawyer to "explain a matter to
the extent reasonably necessary to pennit a client to make informed decisions regarding the
representation."
16

The discrimination proceeding involved two separately docketed cases, with a docket
number for the discrimination case, and a docket number for the temporary reinstatement
application.
17

As the majority recognizes, the miner' s recollection was that the solicitor told him it
would be better to follow up on the overtime issue after the trial. Slip op. at 2. The miner further
481

have stated before, "I have confidence that miners understand, better than anyone else, the value
of their labor when it comes to negotiating a back pay award." Secy ofLabor on behalfof
Maxey v. Leeco, Inc., 20 FMSHRC 707, 711 (July 1998) (Commissioner Beatty, dissenting).
Again, the foregoing account is all based on the miner's version of events. I am certain
that the attorneys from the Solicitor's Office who were involved in this matter would add much
to our understanding of this controversy if given the opportunity. The majority, however, has
steadfastly refused to seek information from them regarding their recollections.
Here, the majority once again misses the forest for the trees, and, in the process, avoids
addressing the ultimate issues the miner's disciplinary referral poses. As the decisions in
Disciplinary Proceeding I make plain, this miner was uniquely situated, given his treatment by
the Secretary's representatives. Moreover, as discussed previously, the issue of how well
informed the miner was when he decided to settle his cases is open to a very serious debate. In
my view, it is hardly appropriate for the majority to look to the terms of a settlement agreement,
especially one which resulted from such controversial circumstances, as the only source of
resolving the miner's overtime pay dispute. It is especially inexcusable to do so after foregoing
the opportunity to fully investigate the Secretary's crafting of the settlement agreement.
Again, the ABA Model Rules of Professional Conduct provide several standards that may
be relevant to the allegations made by the miner regarding the overtime pay issue. Rule 1.1
requires a lawyer to "provide competent representation to a client." This rule specifies that
competent representation "requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation." Rule 1.3 instructs attorneys to "act with reasonable
diligence and promptness in representing a client." Clearly, these standards are potentially
implicated by the miner 's allegations, both with respect to the Solicitor's Office apparent failure
to follow up on the April 14, 2000 letter to the operator's attorney concerning the miner's
entitlement to overtime pay as part of his temporary economic reinstatement, and if the
Solicitor's Office failed to raise the overtime issue during the course of negotiations to settle the
disclimination case. Also open to question under these standards is the tlial attorney's alleged
statement to the miner that it would be better to raise the overtime issue with the judge after the
trial.
At a minimum, read against these standards, the miner's allegations raise the issue of
whether the involved Solicitor's Office attorneys breached ethical standards by failing to provide
the miner with a reasonable explanation of the consequences of entering into the settlement
agreement. This would of course include his waiver of any potential entitlement to overtime pay
as part of the temporary reinstatement previously ordered by the judge.

alleges that approximately a week before the settlement was reached he again raised the overtime
issue with his counsel, but was told it was not important at that time.
482

Of course, the Commission cannot consider these issues without gathering the relevant
facts, and that the majority refuses to do. Consequently, the full story behind the treatment of the
overtime pay dispute by the Solicitor's Office will never be known. If all of the facts were
known, it may become apparent that the attorneys from that office handled the dispute
appropriately. However, given how the miner's case was handled during the preceding two years
by the Department of Labor and its representatives, I, unlike the majority,~ not inclined to
blithely assume that was the case.
For the foregoing reasons, I respectfully dissent.

483

APPENDIX A

Questions for All Three Solicitor's Office Attorneys
l.

Describe your efforts to pursue the miner's entitlement to overtime pay as part of his
temporary economic reinstatement following the April 14, 2000 letter to the operator's
attorney concerning this issue. If no such efforts were undertaken, please explain why
not.

2.

Describe the content of any and all conversations you had with the miner concerning his
entitlement to overtime pay as part of his temporary economic reinstatement by the
operator during the period following the issuance of the judge's temporary reinstatement
order.

3.

Was it your understanding that the miner was entitled to receive some amount of
overtime pay as part of his temporary economic reinstatement by the operator? If so,
approximately how many hours of overtime pay per week was the miner entitled to?
Describe with particularity the basis for this assessment.

4.

Was the issue of the miner's entitlement to overtime pay as part of his temporary
economic reinstatement discussed with the operator's counsel in the course of
negotiations to settle the miner's disc1imination complaint? If so, describe each instance
in which the issue was raised, by whom, and the response by opposing counsel.

5.

Describe the entire course of negotiations with the operator's counsel to settle the miner's
discrimination complaint? Include a desc1iption of how many meetings/conversations
were held to negotiate the settlement, the miner's initial settlement proposal, the
operator's response, and any subsequent proposals and counter-proposals.

6.

Did the miner waive his entitlement to overtime pay as part of his temporary economic
reinstatement as a result of the settlement reached with the operator in the discrimination
case? If so, please describe with particularity the basis for your understanding that the
miner had so waived his entitlement to overtime pay.

7.

Did you or any other attorney in the Solicitor's Office ever explain to the miner that he
was waiving his right to overtime pay as pa1t of his temporary economic reinstatement as
a result of the settlement reached with the operator in the discrimination case? If so,
describe with particularity the substance of any such conversation with the miner. If not,
please explain why this issue was not discussed with the miner.

8.

Did the miner ever raise the question of his entitlement to overtime pay as part of his
temporary economic reinstatement by the operator during the negotiation of the
settlement agreement with the operator, or subsequently? If so, describe the
484

circumstances of each instance when this question was raised by the miner, and how you
responded to him.
9.

What was your overall assessment of the strength of the miner's discrimination case
against the operator? Describe with particularity the basis for your assessment.

10.

What is your overall assessment of the fairness of the settlement reached with the
operator in the miner's discrimination case? Describe with particularity the basis for your
assessment, and how it would be influenced by the fact that the miner was entitled to a
significant amount of overtime pay as part of his temporary economic reinstatement by
the operator.

For Trial Attorney:
1.

Did you ever advise the miner to the effect that, at the temporary reinstatement hearing,
the judge sent a clear signal that a considerable amount of new evidence would be
required to enable the miner to prevail on his discrimination complaint and/or that the
miner would have a steep uphill battle to win his case? If so, describe with particularity
the basis for that advice, and describe the miner's response.

2.

Did you ever advise the miner that it would be better to pursue the issue of his entitlement
to overtime pay as part of his temporary economic reinstatement following the trial in his
discrimination case? If so, describe with particularity the circumstances under which that
advice was given to the miner, and your basis for doing so.

3.

Did you ever advise the miner that the lack of follow-up on the issue of his entitlement to
overtime pay as part of his temporary economic reinstatement was not "that important of
an issue"? If so, describe with particulaiity the circumstances under which that statement
was made to the miner, and describe the miner's response.

4.

Did you ever advise the miner that an initial settlement demand of $50,000 would be
excessive, and would probably not even prompt a response from the operator? If so,
describe with particularity the basis for that advice, and describe the miner's response.

For Other Two Solicitor's Office Attorneys:
1.

Did you ever advise the miner that an initial settlement demand of $50,000 would be
excessive, and would probably not even prompt a response from the operator? If so,
describe with paiticularity the basis for that advice, and describe the miner's response.

2.

Did you ever advise the miner that the issue of his potential liability under section 110(c)
of the Mine Act could be raised by the operator as a defense in the trial of his
discrimination case and/or was a significant impediment to prevailing in the

485

discrimination case? If so, describe with particularity the basis for that advice, and
describe the miner's response.
3.

Did you ever advise the miner to the effect that discrimination cases similar to his usually
settle for somewhere around $15,000 or $20,000? If so, describe with particularity the
basis for that advice, and describe the miner's response. Did you ever suggest to the
miner that an initial offer to A&K to settle his case for about $15,000 would be
appropriate? If so, describe with particularity the basis for that advice, and describe the
miner's response.

486

Distribution
Edward Clair, Esq.
Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209

487

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

May 16, 2002

SECRETARY OF LABOR,
MJNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2002-259-M
A.C. No. 05-04456-05529

V.

HOCKER CONSTRUCTION

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: THE COMMISSION
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) (''Mine Act"). On February 19, 2002, the Commission received from
Hocker Construction ("Hocker") a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secreta1y, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and approp1iate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
488

found guidance in, and has applied "so far as practicable," Rule 60(b) of the Federal Rules of
Civil Procedure. See 29 C.F.R. § 2700.l(b) ("the Commission and its judges shall be guided so
far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In
accordance with Rule 60(b)(1 ), we previously have afforded a party relief from a final order of
the Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC
704, 705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996);
Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).
In its request, Hocker, apparently proceeding prose, asserts that its failure to timely file a
hearing request to contest the proposed penalty assessment was due to lack of familiarity with
Commission procedures. H Mot. In a March 6, 2002 response to Hocker's request to reopen, the
Secretary argued that the Commission should direct Hocker to provide a more detailed
explanation of why its unfamiliarity with Commission procedures warrants reopening. Sec'y
Mot. at 2-3.
On the basis of the present record, we are unable to evaluate the merits of Hocker's
position. In the interest ofjustice, we remand the matter for assignment to a judge to determine
whether Hocker has met the criteria for relief under Rule 60(b). See Upper Valley Materials, 23
FMSHRC 130, 130-32 (Feb. 2001) (remanding to a judge where operator failed to file hearing
request due to unfamiliarity with Commission procedures); Eclipse C Corp., 23 FMSHRC 134,
134-36 (Feb. 2001) (same). If the judge determines that such relief is appropriate, this case shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Chairma

489

Distribution
Roy Hocker
Hocker Construction
4167 Co. RD 321
P .O. Box 627
Ignaci, CO 811 37
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

490

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

May 21, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.

v.

CENT 2002-192-M
A.C. No. 39-01447-05504

WEBSTER SCALE, INC.

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On April 24, 2002, the Commission received from Webster
Scale, Inc. ("Webster") a request to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In the request, John Shoemaker, Vice President of Sales at Webster, seeks relief for a
proposed penalty assessment (A.C. No. 39-01447-05504) totaling $1,563 for five alleged
violations. Mot. The operator asserts that, due to employee changes, it failed to timely submit a
request for a hearing on the proposed penalty assessment to the Department of Labor's Mine
Safety and Health Administration ("MSHA"). Id. It contends that the employee responsible for
handling MSHA matters is no longer with the company and requests that the Commission reopen
the proposed assessment. Id. Attached to its request is a copy of the proposed penalty
assessment.

491

We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89(May1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits pe1mitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Rule 60(b) of the Federal Rules of
Civil Procedure. See 29 C.F.R. § 2700.1 (b) ("the Commission and its judges shall be guided so
far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In
accordance with Rule 60(b)(1 ), we previously have afforded a party relief from a final order of
the Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC
704, 705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591 -92 (Sept. 1996);
Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997). However, where an operator
has failed to timely submit a hearing request due to internal mishandling, the Commission has
remanded the matter to a judge for further consideration. See, e.g., E. Ark. Contractors, Inc., 21
FMSHRC 981, 983 (Sept. 1999) (remanding where operator failed to timely file hearing request
due to a change in personnel which resulted in mishandling of the proposed penalty assessment).
On the basis of the present record, we are unable to evaluate the merits of Webster's
position. In the interest of justice, we remand the matter for assignment to a judge to determine
whether Webster has met the criteria for relief under Rule 60(b). If the judge determines that
such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

-··-- · ~-~

--~ / /

/

--- ---~-·

Robert H. Beatty, Jr., Commissioner

492

Chairman Verheggen, dissenting:
I would grant Webster Scale's request for relief and reopen these penalty assessments.
Webster Scale has provided a reasonable explanation for its failure to timely request a hearing
which I find qualifies as "inadvertence" or "mistake" under Rule 60(b) of the Federal Rules of
Civil Procedure. I also note that the Secretary does not oppose the operator's motion. In
addition, the operator is proceeding pro se, and the Commission has always held the pleadings of
pro se litigants to less stringent standards than pleadings drafted by attorneys. Marin v. Asa_rco,
Inc., 14 FMSI-IRC 1269, 1273 (Aug. 1992) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
Under these circumstances, and because no other circumstances exist that would render a grant of
relief here problematic, I fail to see the need or utility for remanding this matter to determine if
relief would be appropriate. I therefore dissent.

Theodore F. Verheggen, Ch

493

Distribution
John Shoemaker, Vice President of Sales
Webster Scale, Inc.
P.O. Box 127
North Highway 25
Webster, SD 57274
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

494

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

May 21, 2002
Docket Nos.

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

WEST 2002-367-M
A.C. No. 35-03526-05501
WEST 2002-368-M
A.C. No. 35-03526-05502

V.

WEST 2002-369-M
A.C. No. 35-03526-05503

APPLEGATE SHALE

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On April 16, 2002, the Commission received from Applegate
Shale ("Applegate") a request to reopen three penalty assessments that had become final orders
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Between November 2001 and January 2002, Applegate received three proposed
assessments from the Department of Labor's Mine Safety and Health Administration ("MSHA").
The assessments totaled $620 for 10 alleged violations. In Applegate's request for relief,
Thomas Vallejo, the company's owner, asserts that it failed to timely submit a request for a
hearing on the proposed penalty assessment to MSHA due to a recalcitrant employee. Mot.
Vallejo contends that his former secretaiy, who was delegated the task of filing the hearing
requests for proposed assessments A.C. Nos. 35-03526-05501 and 35-03526-05502, assured him
495

that she had mailed the requests. Id. He explains that he only became aware that the proposed
assessments were uncontested when he received the last assessment A.C. No. 35-03526-05503.
Id. Vallejo claims that at that time, he verified with her again that she would submit the requests
for all three assessments, but subsequently discovered the employee did not follow through. Id.
Vallejo maintains that the employee, who refused to return the proposed assessments and hearing
request forms to him, is no longer employed by Applegate, and that he is awaiting additional
copies of the assessments from MSHA. Id. Vallejo also offers that business is slow and that
these penalties would affect the company's ability to continue in business. Id.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc. , 15
FMSHRC 782, 7~6-89 (May 1993) ("JWR" ); Rocky Hollow Coal Co., 16 FMSHRC 1931 , 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Rule 60(b) of the Federal Rules of
Civil Procedure. See 29 C.F .R. § 2700.1 (b) ("the Commission and its judges shall be guided so
far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In
accordance with Rule 60(b)(1 ), we previously have afforded a party relief from a final order of
the Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC
704, 705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996);
Stillwater Mining Co., 19 FMSHRC I 021 , 1022-23 (June 1997). However, where an operator
has failed to timely submit a hearing request due to internal mishandling, the Commission has
remanded the matter to a judge for further consideration. See, e.g., E. Ark. Contractors, Inc. , 21
FMSHRC 981, 983 (Sept. 1999) (remanding where operator failed to timely file hearing request
due to a change in personnel which resulted in mishandling of the proposed penalty assessment).

496

On the basis of the present record, we are unable to evaluate the merits of App legate's
position. In the interest of justice, we remand the matter for assignment to a judge to determine
whether Webster has met the criteria for relief under Rule 60(b). If the judge determines that
such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

Robert H. Beatty, Jr., Corrunissioner

497

Chairman Verheggen, dissenting:
I would grant Applegate Shale's request for relief and reopen these penalty assessments.
Applegate has provided a reasonable explanation for its failure to timely request a hearing which
I find qualifies as "inadvertence" or "mistake" under Rule 60(b) of the Federal Rules of Civil
Procedure. I also note that the Secretary does not oppose the operator's motion. In addition, the
operator is proceeding pro se, and the Commission has always held the pleadings of pro se
litigants to less stringent standards than pleadings drafted by attorneys. Marin v. Asarco, Inc., 14
FMSHRC 1269, 1273 (Aug. 1992) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Under
these circumstances, and because no other circumstances exist that would render a grant of relief
here problematic, I fail to see the need or utility for remanding this matter to determine if relief
would be appropriate. I therefore dissent.

498

Distribution
Thomas Vallejo
Applegate Shale
233 Rogue River Highway, Suite 269
Grants Pass, OR 97527
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

499

ADMINISTRATIVE LAW JUDGE DEOSIONS

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

May23 , 2002
SECRETARY OF LABOR, MSHA, on
behalf of KENNETH KUNKEL,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2002-225-D
BARB CD 2002-09

v.

Mine ID 15-18317

SILVER CLOUD COAL, INC.,
Respondent

DECISION
Appearances: Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Complainant,
Robert Copeland, Esq., Copeland & Bieger, Abingdon, Virginia, for Respondent.
Before:

Judge Zielinski

A hearing on the Application for Temporary Reinstatement was scheduled for May 3,
2002 at the United States Courthouse in Big Stone Gap, Virginia. The hearing was convened, as
scheduled, at 9:00 a.m. Kenneth Kunkel, on whose behalf the application was filed, had
experienced transportation problems and was present by phone. The parties advised that they
had reached an agreement to settle all claims that Kunkel may have under Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 801, et seq., related to his discharge on March 14, 2002.
Pursuant to the agreement, as explained by the parties at the hearing, Respondent will pay
to Kunkel, wages from March 11, 2002 through May 3, 2002, based upon a 40 hour week
(without overtime) at the rate of $18.00 per hour, less lawful deductions. Respondent will also
remove any adverse information from Kunkel's personnel file, and will assure that it reflects that
he was laid off on May 3, 2002, due to lack of work. In response to any inquiries regarding
Kunkel's employment, Respondent will advise ofKunkel's job classification, rate of pay, dates
of employment and reason for termination, as stated. Respondent will not oppose any claim by
Kunkel for unemployment benefits. In consideration of Respondent' s obligations, the
Application for Temporary Reinstatement will be withdrawn and Kunkel will withdraw the
complaint of discrimination filed with MSHA on or about March 15, 2002. The Secretary will
not seek to impose a civil penalty on Respondent and will terminate the investigation of the
discrimination complaint.

500

I have considered the representations and evidence submitted and conclude that the
proffered settlement is appropriate under the criteria set forth in section 11 O(i) of the Act.

ORDER
Based upon the foregoing, the motion to approve settlement is GRANTED. The parties
shall comply with the provisions of the agreement as stated on the record and this matter is
hereby DISMISSED.

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215 (Certified Mail)
Mr. Kenneth Kunkel, P.O. Box 256, Littcarr, KY 41834 (Certified Mail)
Robert Copeland, Esq., Copeland & Bieger, P.O. Box 1296, 212 West Valley St., Abingdon,
VA 24210 (Certified Mail)
/mh .

501

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

May28, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2001-428
A. C. No. 15-17587-03582

v.
OHIO COUNTY COAL COMPANY,
Respondent

Freedom Mine

DECISION
Appearances: J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll, Professional Corporation,
Pittsburgh, Pennsylvania, on behalf of Respondent.
Before:

Judge Melick

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
(1994), et seq., the "Act," charging the Ohio County Coal Company (Ohio County) with one
violation of the mandatory standard at 30 C.F.R. § 75.1700 and proposing a civil penalty of
$2,000.00, for that violation. The general issue before me is whether Ohio County violated the
cited standard as alleged and, if so, what is the appropriate civil penalty to be assessed
considering the criteria under Section l lO(i) of the Act.
Citation No. 7646849, as first issued on November 21, 2000, alleged a "significant and
substantial" violation of the standard at 30 C.F.R. § 75.1700 and charged that "MMU 001
located in the first south main has intersected two unlocated wells on the active unit located
approximately at spad 33+00, in entries 2 and 8 respectively." The citation was twice modified
on November 28, 2000, to increase the negligence allegations from "moderate" to "high" and to
charge an "unwarrantable failure" violation under Section 104(d)(l) of the Act. 1 The Secretary

Section 104(d)(1) 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 mandat01y health or safety standard, and if
he also finds that, while the conditions created by such violation do not cause imminent danger,
502

alleges that the modifications were made "because the wells that were intersected by the #1 unit
were found in other sources of information readily available and not utilized by the operator."
The citation was terminated on November 28, 2000. The termination notice states as
follows:
Info1mation has been sent from the operator which shows that five wells
have now been found and located in the "3C" panel and that two more wells have
approximate locations in the said panel and are not located. The information
further shows that another six wells are within the 500 feet [sic]baiTier of the
"3C" panel and are not located. A well was also shown to have an approximate
location in the "4C" panel.
The cited standard, 30 C.F.R. § 75. 1700, as relevant hereto, provides that "each operator
of a coal mine shall take reasonable measures to locate oil and gas wells penetrating coal beds or
any underground area of a coal mine." At hearings, counsel for the Secretary stated that the only
violations actually charged relate to those wells found on November 20 and 21, 2000, and as
initially cited on November 21, 2000. Counsel explained that the additional wells mentioned in
the November 28, 2000, termination notice were cited, not as additional charges, but only as
purported violative conditions evidencing high negligence and "unwarrantable failure."
The conditions alleged in the initial citation ai·e undisputed. On the morning of
November 20th, 2000, an oil well casing was struck by the continuous miner in the No. 8 entry,
two feet off of the right rib at crosscut 33+00. The continuous miner also broke a coupling off of
the well casing. This incident was repo1ted to the Mine Safety and Health Administration
(MSHA) that same morning. MSHA Inspector Archie Coburn, proceeded to the mine later that
morning and observed that the well casing had been cut, resulting in a five inch gap. Crude oil,
water and mud were emitted from the broken casing. Coburn checked the mine ventilation map
in the mine office (Gov't Exh. 4) and observed that this oil well had not been plotted on the map.

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."

503

Mine Superintendent Ricky Brown also told Coburn that he had called Associated Engineers
(Associated), an independent contractor who had prepared the map, and was told that the oil well
had not been plotted on their maps either. Coburn observed that no methane was being emitted
from the well and the oil and water had stopped flowing. Coburn issued a "Section 103(k)" order
to ensure the safety of mine personnel and terminated the order later on the same date after the
well had been sealed off with a wrap-around coupling. At that time Coburn concluded that, since
the well had not been identified on any map, it must have been a ''wildcat" well. No evidence of
any well was found on the surface above the casing discovered underground.
Coburn testified that he later learned that, on November 21 , 2000, at around 9:10 a.m.,
the miner had cut into another oil well this time in the No. 2 entry, 62 feet inby the last open
crosscut. This well was not cased. He learned that the miner had automatically deenergized
when it cut into the well indicating the presence of at least 2% methane. Oil and water were also
emitted from this well but the methane was diluted and removed by mine ventilation. The well
was plugged off and the mine resumed production. This well had also not been plotted on the
required ventilation plan map (Gov't Exh. 4).
MSHA Inspector Charles Jones testified that he was present at the scene shortly after the
second well was discovered on November 21. When he arrived he detected small amounts of
methane on his hand held monitor. According to Jones, methane continued to be emitted from
the well until it was plugged. Jones found the ventilation to be appropriate and that no methane
was found at the face.
MSHA Mining Engineer Robert Simms was directed to investigate the matter after the
second unplotted oil well was discovered. He too verified that the then-current mine ventilation
map (Gov't Exh. 4) failed to identify the position of the two wells at issue. According to Simms,
there are three sources of information for determining the location of oil wells in the vicinity of
the subject mine: (1) Kentucky Geological Service maps from oil well permits, (2) Kellar Maps
prepared by a commercial enterprise, and (3) Scout-Check maps also prepared by a commercial
enterprise. According to Simms, mine supe1intendent Ricky Brown told him that he had called
Associated President, David Lamb, who told Brown that the two wells at issue were in fact
plotted on the Kellar map. Sims did not however testify as to when this conversation occun-ed.
Simms apparently also confirmed on his own that the two wells were in fact plotted on a Kellar
map. Simms thereafter issued the modifications on November 28 111, to the citation he had issued
on November 21st.
Simms testified that he told "them" on November 21, to research all the oil wells in the
areas to be mined. A map subsequently produced by Associated on November 25, 2000, which
Simms received on November 27, 2000, showed a number of additional wells that had not been
plotted on the approved map utilized by Ohio County (Gov't Exh. 4). The new map showed not
only the two wells at issue but nine additional wells. Simms testified that he modified the
November 21 citation, increasing the degree of negligence and adding unwarrantability findings,
based on this newly discovered evidence.

504

The critical issue in this case is whether Ohio County had taken "reasonable measures"
within the meaning the cited standard to have located the cited oil wells. In this regard it is
undisputed that Ohio County had engaged the services of the engineering firm, Associated, to
provide accurate mine ventilation maps required by the Secretary. Such maps are required by
law to show, inter alia, the location of oil wells within projected mining areas. According to
Associated president, David Lamb, they have been in the business of providing such engineeling
services to most of the mining companies in the Illinois basin since 1958. Hundreds of mining
companies have used their services. According to Lamb, who has a bachelor's degree in civil
engineering from the University of Kentucky and is a licensed professional engineer, Associated
utilizes a number of informational sources to develop a database of oil wells. Because of
inadequacies in each source they use all the sources to cross~check and confirm the location of
wells. They utilize the Kentucky Geologic Survey, the Kentucky Division of Oil and Gas,
"Kellar Maps," maps developed by scouts for oil companies and individual private records.
None of the sources are absolutely reliable however and, especially in the area of the Freedom
Mine, there is always a possibility of unmapped (wildcat) wells. There is no evidence that
Associated had previously provided any faulty information regarding the location of oil wells. In
addition, according to Ohio County Mine Superintendent Ricky Brown, they had been relying
upon Associated's well mapping services since they had begun mining the Freedom Mine in
1993 and had, to his knowledge, never previously mined into any unlocated oil wells.
According to Ohio County Mining Engineer Kenneth Moore, in November 2000, mining
activities at the Freedom Mine were premised on the most recently MSHA approved mine map
which had been prepared by Associated on March 17, 2000, (Gov't Exh. 4). This map bad been
generated by Associated from a computer disk containing digitalized information in hundreds of
"layers." The system is known as computer assisted drafting or "CAD". Moore testified that he
had used the same computer disk to prepare an updated map which was later submitted to the
Secretary.
As it was later learned, after the two wells at issue herein were mined into, the Associated
engineer who prepared the March 17, 2000, map (Gov't Exh. 4) failed to discover a "frozen
layer" of digitalized information on the CAD which contained information relating to the cited
wells. Accordingly the printed map (Gov't Exh. 4) relied upon by Ohio County failed to identify
the two wells cited herein (as well as the additional wells cited in the November 28 termination
notice).
Within this framework of evidence, however, I conclude that Ohio County had taken
"reasonable measures" to locate the wells at issue. It had contracted with a long established
engineering firm with whom they had a long standing relationship and which had never
previously failed to locate an oil well in areas mined by Ohio County. It may reasonably be
infe1red that the firm was reputable in that it had been relied upon since 1958 to provide such
services for most of the mining companies in the region.

505

In reaching these conclusions I have not disregarded the Secretary's contention that, after
the discovery of the first unplotted well on November 20, and of previous oil seepage, Ohio
County should have been on heightened alert for any mapped or unmapped wells. It is
undisputed, however, that the previously discovered seepage was not associated with any oil well
and that the well discovered on November 20, was thought by everyone, including the MSHA
inspector and an Associated engineer to have been an unmapped "wildcat" well. It was only
after further investigation by Associated after the discovery of the second unmapped well on
November 21, that the "frozen layer" on the CAD computer disk was discovered by an
Associated engineer. However, I find that in any event, reliance by Ohio County upon a
reputable engineering firm under the circumstances herein constitutes "reasonable measures" to
locate oil wells within the meaning of the cited standard. Accordingly there is no violation as
charged and the citation herein must be vacated.

ORDER
Citation No. 7646849 is hereby vacated.

GaryMeli k
Administra ·ve Law Ju

e

Distribution: (By Certified Mail)
J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215
R. Henry Moore, Esq., Buchanan Ingersoll, Professional Corporation, One Oxford Centre, 301
Grant Street, 201h Floor, Pittsburgh, Pennsylvania 15219

\mca

506

f',c U.S. GOVERNMENT PRINTING OFFICE: 2002 49:Z..13S/6Slses