JANUARY 2004

COMMISSION DECISION
01-16-2004 Georges Colliers, Incorporated

EAJ 2002-2

Pg. 1

WEST 2002-224-M(A)
KENT 2002-42-R
WEST 2003-182-DM
WEVA 2003-155-D

Pg. 21
Pg. 35
Pg. 52
Pg. 65

ADMINISTRATIVE LAW JUDGE DECISIONS
01-05-2004 Original Sixteen to One Mine, Inc.
01-14-2004 Martin County Coal Corporation
01-21-2004 Mark Pollock v. Kennecott Utah Copper Corp.
01-28-2004 David Mullens v. U.S. Steel Mining Co.

i

JANUARY 2004

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

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

ii

C01\1MISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

January 16, 2004

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

v.

Docket No. EAJ 2002-2

GEORGES COLLIERS,
INCORPORATED

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
DECISION
BY: Duffy, Chairman; Beatty, Suboleski, and Young, Commissioners
This case involves an application for an award of attorney's fees and other expenses by
Georges Colliers, Inc. ("GCI"), pursuant to the Equal Access to Justice Act ("EAJA"), 5 U.S.C.
§ 504 et seq. GCI's application followed the decision in Georges Colliers, Inc., 23 FMSHRC
1346, 1392-1416 (Dec. 2001) (ALJ), in which Administrative Law Judge David Barbour assessed
penalties of $72,298 for numerous violations of the Federal Mine Safety and Health Act of 1977,
30 U.S.C § 801 et seq. (1994) ("Mine Act" or "Act"). The Department of Labor's Mine Safety
and Health Administration ("MSHA") had proposed penalties of $332,701. Thereafter, GCI filed
an application for fees and expenses on the grounds that the penalties proposed by MSHA were
substantially in excess of the penalties assessed by the judge and unreasonable when compared to
the judge's decision. The application for fees and expenses was denied by the administrative law
judge. 24 FMSHRC 572, 578 (June 2002) (AU). For the reasons that follow, we vacate the
judge's decision and remand this proceeding for further consideration consistent with our analysis.

1

I.
Factual and Procedural Background
A.

The Mine Act Proceeding

GCI began operations when it took over the three eastern Oklahoma coal mines of two
financially troubled companies, P&K and HMI. 23 FMSHRC at 1352. P&K and HMI had sought
financial assistance from a Chicago investment firm, Heller Financial, Inc. Id. Heller acquired
the assets of P&K and HMI and formed GCI to own and operate the mines that were formerly
owned by the companies. Id. In 1998, Craig Jackson, whom Heller had hired to help in
improving GCI's profitability, became its president. Id. at 1352-53.
Between 1998 and 2000, MSHA issued to GCI approximately 550 citations and orders. In
addition, there were nine civil penalty assessments issued against three agents of GCI who were
charged under section l lO(c), 30 U.S.C. § 820(c), for knowingly violating the Mine Act. Id. at
1351. Ultimately, more than 50 dockets were consolidated in the Mine Act proceeding.
With the exception of the dockets involving liability of the individual agents under section
l lO(c), the Secretary and GCI stipulated to all issues other than whether the amount of the
proposed penalty assessments would affect GCI's ability to continue in business. 1 Id. Thereafter,
a three-day hearing was held on the citations and penalties under section llO(c) and on the issue
of whether the proposed penalties arising from the citations and orders issued to GCI would affect
its ability to continue in business. Id. at 1350-51. The judge found the three individuals liable
under section l lO(c) for most of the violations charged. Id. at 1355-86. The judge reduced their
proposed penalties from $18,900 to $3,300. Id. at 1395-98.
With regard to GCI, the judge noted that the operator presented extensive evidence on the
effect of the proposed penalties on its abi lity to continue in business. Id. at 1389. The judge

1

Section l lO(i) sets forth six criteria to be considered in the assessment of penalties
under the Act, including the operator's ability to pay the proposed penalty and stay in business:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i) (emphasis added). See Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (Mar.
1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).
2

relied on the testimony of GCI's president, Craig Jackson, whom the judge found to be "an
articulate and forthright witness," and documentary evidence submitted at trial. Id. at 1389-90.
The judge found that, by the second quarter of 1997, it became apparent that GCI was unable to
meet principal and interest payments on its loan to Heller. Id. at 1389. The judge further noted
that, in 1998, the amount of Heller's loan to GCI was $13.5 million, while the book value of its
assets was between $8 and $9 million. Id. Finally, he found·that, by July 2000, GCI was no
longer actively involved in mining and had cut back its work force from 50 miners to between 12
and 15 miners who performed reclamation work so Heller could avoid incuning a significant
environmental liability. Id. Based on these findings, the judge concluded that GCI's condition
was "precarious" and that imposition of the proposed penalty assessments would adversely affect
its ability to continue in business. Id. at 1390. After weighing all the penalty criteria, the judge
assessed penalties totaling $72,298, reduced from the Secretary's proposed penalties of $332,701.
Id. at 1398-1416.
Neither GCI, the Secretary, nor the section l lO(c) agents appealed the judge's decision to
the Commission.
B.

The EAJA Proceeding

On January 28, 2002, the Commission received from GCI an Application for Fees and
Expenses on behalf of itself and its agents requesting reimbursement in the amount of
$45,019.36.2 GCI Appl. at 9, GCI Amended Appl. at 1. In support of its application, GCI
asserted that the Secretary's demands were excessive, resulting in 77 to 80 percent reductions by
the judge in the Secretary's proposed penalties. GCI Appl. at 5-6. GCI further alleged that the
Secretary failed to consider that the company was small and insolvent and that the proposed
penalties would affect its ability to continue in business. Id. at 7-9.
The Secretary opposed the application, stating that GCI did not submit financial
information during the penalty assessment phase of the proceeding. Sec. Opp'n to Appl. at 1-2.
The Secretary stated that, during subsequent settlement negotiations, GCI requested either
complete revocation of penalties or imposition of nominal penalties, neither of which were
permitted under the Mine Act. Id. at 2-3. The Secretary further argued that GCI committed
willful violations of the Mine Act and acted in bad faith. Id. at 5-8. Finally, the Secretary argued
that penalties were not unreasonable when compared with the judge's decision and that the
demands were not substantially in excess of the penalties assessed. Id. at 8-17.
In ruling on the application, the judge reviewed the different bases for recovery under the
EAJA. He noted that an EAJA application may be granted "where the government's demand is
'substantially in excess' of the relief awarded, that is where the demand is unreasonable when

2

GCI initially sought fees and expenses totaling $72,495, GCI Appl. p. 9, but submitted
an amended application with reduced fees and expenses because it had included fees arising out
of a separate proceeding, Georges Colliers, Inc., 23 FMSHRC 822 (Aug. 2001 ).

3

compared with the relief awarded." 24 FMSHRC at 574 (citations omitted). In examining
MSHA's proposed penalties, the judge stated that they represented the agency's ultimate position
prior to litigation. Id. He found that the proposed penalties were the result of applying the
regulations governing assessments, and that there was nothing in the record to indicate that in
computing the penalties the Secretary did anything other than "faithfully follow and properly
apply the regulations." Id. at 574-75. In responding to GCI's contention that the Secretary did not
properly consider the effect of the proposed penalties on its ability to continue in business, the
judge found that the record did not reveal that during the penalty proposal process GCI brought to
MSHA's attention all of the finan cial documents and the statements of its president that the judge
found persuasive during the hearing. Id. at 575. Further, the judge found that the proposed
penalties did not seem excessive when compared to the statutory limits in the regulations. Id.
Therefore, the judge concluded that MSHA 's proposed penalties issued to GCI and its agents were
substantially justified. Id.
The judge next addressed whether MSHA's litigation positions were reasonable. Id. at
576-77. He noted that it is the judge's duty to assess penalties de novo based on statutory criteria
and that the amounts ultimately assessed reflect the exercise of his discretion. Id. at 576. Here,
the j udge found that he had reduced the proposed penalties between 77.5 and 80.84 percent. Id.
He rejected the parties' invitation to review their settlement discussions, determining rather to
judge the reasonableness of the Secretary's position by whether what was revealed at trial was
known, or reasonably should have been known. Id. at 577. The j udge concluded that it was not
unreasonable for the Secretary to pursue the proposed penalties and that she could not have
anticipated his credibility determinations. Id. The judge, therefore, denied the EAJA application.
Id. at 578.
C.

Petition for Review

On June 14, 2002, the administrative law judge issued his decision on the EAJA
application. Id. at 572. GCI filed a petition for review with the Commission on July 19, 2002,
some 35 days after issuance of the judge's decision. The Secretary filed an opposition to the
petition, arguing that the Commission had no authority to accept a petition filed beyond 30 days
after the judge's decision, or to extend the time for filing a petition. Sec. Opp'n to PDR at 3-7.
In response, counsel for GCI stated that she received mail at her home office in a bank of
mail boxes and that it was possible "that the letter was miss-directed [sic] to another mailbox."
GCI Reply to Sec. Opp'n to PDR at 1-2. GCI further argued that due process required timely
notice of the judge's decision and that the problem could have been avoided if the decision had
been sent by certified mail. 3 Id. at 3.

3

Judges' decisions generally are sent via certified mail, but the judge's decision in this
proceeding was sent by regular mail.

4

On July 24, 2002, the Commission voted to grant GCI's petition for review, with one
commissioner voting to deny the petition because it was untimely.

II.
Disposition
GCI initially argues that the judge applied the substantial justification test instead of the
two-prong test of whether the government's demand is substantially in excess of the relief
awarded and unreasonable when compared to that relief. GCI Br. at 7-8. GCI further argues that,
under the Secretary's penalty assessment regulations, it cannot be required to submit financ ial
information prior to receiving the proposed penalty assessment or within 30 days of a proposed
assessment prior to filing a notice of contest. Id. at 8-10. GCI next argues that the Secretary, in
considering the penalties in this proceeding, should have been aware of GCI's financial records
submitted in the record of other Mine Act proceedings. Id. at 10-11. GCI then contends that the
amount of the proposed assessments was excessive when compared to the judge's decision. Id. at
11-12. Finally, GCI asserts that the Secretary's proposed assessments were unreasonable when
compared to the judge's decision. 4 Id. at 12- 14.
The Secretary reiterates her position that GCI's petition for review was filed late and that
the Commission has no authority to accept it. Sec. Br. at 6-1 1. The Secretary further argues that,
because GCI's petition for review failed to challenge the judge's findings that the proposed
penalties were not substantially in excess of those assessed, the Commission must affirm the
judge. Id. at 12-13. The Secretary challenges GCI's assertion that the judge applied the incorrect
test for making an award and that, if he did apply the incorrect legal standard, it was harmless
error. Id. at 13-16. The Secretary argues that the judge properly found that the Secretary's
proposed penalties were not excessive when compared with those assessed by the judge. Id. at
16-18. The Secretary further argues that the proposed penalties were not unreasonable when
compared with those assessed by the judge. Id. at 24-35. Finally, the Secretary argues that the
Commission should deny GCI an EAJA award because it committed willful violations of the
Mine Act, committed over 500 violations, frequently endangering the health and safety of miners,
and acted in bad faith during the litigation of the case. Id. at 35-38.
A.

Timeliness of GCI's Petition for Review

The time limit for filing an appeal from a judge's decision in an EAJA proceeding is

4

Although GCI referred to the section 1lO(c) agents in its petition, PDR at 2, GCI made
no argument in its l:>rief to the Commission regarding the individuals. Accordingly, it has
abandoned its appeal with regard to those individuals. See RNS Services, Inc., 18 FMSHRC 523,
526 n.6 (Apr. 1996). Thus, in the event that the judge fi nds that an EAJA award to GCI is
appropriate, the charges related to counsel' s preparation of her defense of those individuals must
be separated from the legal fees submitted by GCI.

5

governed by Commission Procedural Rule 308(b), 29 C.F.R. § 2704.308(b) (hereafter "EAJA
Rule"). That provision states, "[t]he party seeking review shall file a petition for discretionary
review so as to be received by the Commission ... within 30 days of the issuance of the ...
decision by the administrative law judge." 29 C.F.R. § 2704.308(b).
In the instant proceeding, contrary to the Commission's usual practice, the judge's
decision was not sent by certified mail. GCl's counsel stated that she did not receive the judge's
decision until July 17, 2002, some 33 days after it was issued. GCI Reply to Sec. Opp'n to PDR
at 1. Counsel stated that she received mail at a bank of mailboxes at her residence where mail was
often incorrectly delivered. Id. at 2. GCI's petition was received by the Commission 35 days
after issuance of the judge's decision.5
The Secretary filed an opposition to GCI's petition for review, arguing that the
Commission had no authority under the Mine Act to grant the late-filed petition. Sec. Opp' n to
PDR at 3-7. In her brief, the Secretary reiterates her position that the Commission has no
authority under the Mine Act to grant a late-filed petition in an EAJA proceeding and, therefore,
should vacate its direction for review. Sec. Br. at 6-11.
We disagree with the Secretary's position. At the time that the petition for review was
filed, the Commission reviewed the Secretary's arguments and the circ4mstances surrounding the
issuance of the judge's decision. Included in this review was the Commission' s inadvertent
failure to use certified mail, and the mail delivery problems recounted by GCI' s counsel. We note
further that section 113 of the Mine Act, 30 U.S.C. § 823, upon which the Secretary relies in large
measure to argue that the Commission has no authority to accept the petition (Sec. Opp'n to PDR
at 4-7), governs the procedures for filing a petition for discretionary review of a judge's decision
in a Mine Act proceeding. This, however, is an EAJA proceeding that is governed by
Commission EAJA Rule 308(b). In light of the foregoing, we decline the Secretary's request to
vacate the Commission's direction for review.6

5

GCI' s argument that, under Mine Act Rule 8, 29 C.F.R. § 2700.8, it had an additional
five days to file because service of the judge's decision was by mail, is incorrect. As Mine Act
Rule 7(a), 29 C.F.R. § 2700.7(a), makes clear, service pertains to the obligation of a party to
deliver documents to another party when filing with the Commission. EAJA Rule 308(b), as
well as Mine Act Rule 70(a), 29 C.F.R. § 2700.70(a), upon which EAJA Rule 308(b) was
modeled, is clearly pegged to the judge's "issuance of the decision," rather than a party's filing
and service of documents. Compare EAJA Rule 301, 29 C.F.R. § 2704.301 (an application for
an award or a petition for discretionary review shall be filed and served on all parties).
6

We do not suggest that in future proceedings we may not strictly apply the time limits
specified in the Commission's EAJA rules. We merely hold that, in light of the Secretary's
arguments and the unique factual circumstances of this proceeding, we decline to do so here.

6

B.

The EAJA Claim

Section 504(a)(l) of EAJA, which was enacted in 1982, provides that an eligible
prevailing party may be awarded attorney's fees and expenses in an adversary proceeding brought
by the United States unless the government's position is "substantially justified" or special
circumstances make an award unjust. 5 U.S.C. § 504(a)(l). The 1996 amendments to EAJA
expanded the basis for recovering fees and expenses to include certain adversary proceedings
against private parties where the government's "demand" leading to the proceedings was
excessive and unreasonable. EAJA Amendments of 1996, Pub. L. No. 104-121, 110 Stat. 862.
Section 504(a)(4), the pertinent portion of EAJA, as amended, provides:
If, in an adversary adjudication arising from an agency action to
enforce a party's compliance with a statutory or regulatory
requirement, the demand by the agency is substantially in excess of
the decision of the adjudicative officer and is unreasonable when
compared with such decision, under the facts and circumstances of
the case, the adjudicative officer shall award to the party the fees
and other expenses related to defending against the excessive
demand, unless the party has committed a willful violation of law or
otherwise acted in bad faith, or special circumstances make an
award unjust. ...
5 U.S.C. § 504(a)(4) (emphasis added). The term "demand" is defined in part as "the express
demand of the agency which led to the adversary adjudication." 5 U.S.C. § 504(b)(l)(F).
The legislative history of the 1996 EAJA amendments is meager. However, the
committee report published following the passage of the amendment explains that a party would
not be required to prevail in the agency adversary proceeding in order to be eligible to recover fees
under section 504(a)(4):
This subtitle amends the EAJA to allow sma11 entities to recover the
fees and costs attributable to a demand by the agency which is
excessive and unreasonable under the facts and circumstances of the
case. The small entity would not be required to prevail in the
underlying action; the final outcome must be, however, to require
payment of an amount substantially less than what the agency
sought to recover.
H.R. Rep. No. 104-500, at 2 (1996). Floor comments accompanying the passage of the EAJA
amendments provide additional guidance in evaluating the government's demand:
This test should not be a simple mathematical comparison. The Committee
intends for it to be applied in such a way that it identifies and corrects
situations where the agency's demand is so far in excess of the true value of
7

the case, as demonstrated by the final outcome, that it appears the agency's
assessment or enforcement action did not represent a reasonable effort to
match the penalty to the actual facts and circumstances of the case.
Joint Managers Statement of Legislative History and Congressional Intent, 142 Cong. Rec.
S3242, S3244 (Mar. 29, 1996) (emphasis added) ("Joint Statement").

The Commission has implemented the requirements of EAJA through its special EAJA
rules in 29 C.F.R. Part 2704. The standards to be applied in addressing EAJA claims are set forth
in 29 C.F.R. § 2704.105. Commission EAJA Rule 105(a) applies to claims of prevailing parties
brought under section 504(a)(l) of EAJA, and Rule 105(b) applies to claims that the Secretary's
demand was excessive and unreasonable under section 504(a)(4) of EAJA.
This proceeding is the second that has come before the Commission involving a claim for
attorney's fees and expenses under the 1996 amendments to the EAJA.7 See L & T Fabrication &
Constr., Inc., 22 FMSHRC 509 (Apr. 2000). In L & T Fabrication, the Commission described the
1996 EAJA amendments as establishing a two-part test for determining whether fees should be
awarded under 5 U.S.C. § 504(a)(4). "The first prong is largely quantitative, focusing on whether
... the Secretary has proposed a penalty that is 'substantially in excess of' the penalty ultimately
assessed by the Commission .... [T]he second prong is qualitative, and presents the issue of
whether the Secretary has acted reasonably in proposing a particular penalty." Id. at 514. In order
for an applicant to recover fees and expenses, both prongs of the test must be met. Id. See also
Commission EAJA Rule 105(b), 29 C.F.R. § 2704.105(b) ("[t]he burden of proof is on the
applicant to establish that the Secretary's demand was substantially in excess of the Commission's
decision; the Secretary may avoid an award by establishing that the demand was not unreasonable
when compared to that decision.").
Here, the Secretary's proposed civil penalties are the government's "demand" that must be
analyzed. Although the judge generally recognized this class of claims under the 1996
amendments(" ... an EAJA application may be granted where the government's demand is
'substantially in excess' of the relief awarded, that is where the demand is unreasonable when
compared with the relief awarded ... " 24 FMSHRC at 574), his decision treats the EAJA
application as if it were made by a prevailing party pursuant to 29 C.F.R. § 2704. l 05(a). GCI did
not prevail in the Mine Act proceeding and claimed only that the Secretary's demand was
excessive and unreasonable. Absent from the decision is the legal framework that the
Commission established in L & T Fabrication for analyzing cases brought under section 504(a)(4)
of EAJA. Id. at 574-77. Instead, the judge examined the Secretary's position prior to and during

7

In prior.Commission EAJA cases brought by prevailing parties, the issue was whether
the Secretary's position was substantially justified under section 504(a)(l) of the statute. See
Black Diamond Constr., Inc., 21 FMSHRC .1188 (Nov. 1999); James Ray, empl'd by Leo
Journagan Constr. Co., 20 FMSHRC 1014 (Sept. 1998); Contractors Sand and Gravel, Inc., 20
FMSHRC 960 (Sept. 1998), rev'd, 199 F.3d 1335 (D.C. Cir. 2000).
8

litigation to determine whether her position was "substantially justified." Id. at 574-76. See, e.g.,
Black Diamond, 21 FMSHRC at 1194 ("EAJA provides that a prevailing party may be awarded
attorney's fees unless the position of the United States is substantially justified."). Because the
judge did not apply the standard set forth in Commission EAJA Rule 105(b) and the legal
framework set forth in L & T Fabrication, the case should be remanded to him.
Further, in addressing whether the proposed penalties were "substantially in excess"8 of
the penalties finally assessed, the judge stated that he did not find the proposed penalties against
GCI excessive "when measured against the statutory limit of $50,000 [per violation]."9 24
FMSHRC at 575 (citations omitted). However, the judge erred when he compared the proposed
penalties to the maximum permissible penalty. The benchmark should have been the penalties
that the judge finally imposed - a figure that was substantially lower than the dollar amount that
he used. See L & T Fabrication, 22 FMSHRC at 5 14- 15. A comparison of the proposed
penalties, $332,701, to the amount that the judge finally assessed, $72,298, indicates a 78 percent
reduction. 10
There is minimal guidance in the legislative history of the EAJA amendments in
determining whether the government's demand is excessive. In a floor comment to the bill,
Senator Bumpers stated that, if the Government sought $1 million to settle the case and the judge
or the jury awarded, for example $10,000 or $50,000, the defendant should be able to recover his
fees. 142 Cong. Rec. S2148-04 (March 15, 1996) (Statement of Sen. Bumpers). The
Commission's decision in L & T Fabrication established some general principles that are
instructive. There, a Commission majority eschewed an approach of evaluating penalties that
would have led to the conclusion that proposed penalties were excessive whenever they were
more than 50 percent of those imposed. 22 FMSHRC at 514-15 & n.6. Nevertheless, the

8

The Secretary argues that GCI did not raise in its petition for review the issue of
whether her demand was excessive when compared with the judge's decision. However, in its
petition for review, GCI stated that the standard for recovery of fees under EAJA is "whether the
Secretary [sic] demand is substantially in excess of the decision and whether or not the demand is
unreasonable" (PDR at 3). The rule governing petitions for review in EAJA proceedings
provides, "Each issue in dispute shall be plainly and concisely stated, with supporting reasons set
forth." 29 C.F.R. § 2700.308(b). We conclude that GCI's petition adequately preserves the
issues for review .
9

The maximum penalty that could be assessed per violation at the time of the judge's
decision was set in the Secretary's regulations at $55,000. 30 C.F.R. § 100.3(a) & (g) (2000).
The maximum penalty has recently been increased to $60,000. 68 Fed. Reg. 6609, 6611 (Feb.
10, 2003).
10

Later in his decision, when the judge compared the proposed penalties to the penalties
actually assessed, he did so in the context of examining the reasonableness of the Secretary's
litigation position. 24 FMSHRC at 576.

9

Commission did not have to decide whether the proposed penalty was excessive because it held
that the proposed penalty was reasonable and, therefore, dismissed the EAJA claim. Id. at 515- 17.

United States v. One 1997 Toyota !And Cruiser, 248 F.3d 899 (9th Cir. 2001), is the only
court of appeals case decided under the EAJA amendments that is pertinent to disposition of this
issue. In a drug seizure proceeding, the government sought forfeiture of a vehicle that was
estimated to be worth $40,000. Id. at 902. Ultimately, the government settled the matter for
$ 1,000 and up to $4,000 in costs incident to the seizure. Id. at 902, 906. In determining that the
government's demand was substantially in excess of the judgment obtained, the court concluded
that "the disparity between the demand and the final settlement is substantial." Id. at 906. The
court further concluded that the government's demand was also unreasonable because it valued
the litigation at $40,000 but quickly lowered its claim to $1,000 plus costs, following the
government's loss on summary judgment. Id. The court remanded the case to the lower court to
determine whether the applicant committed a willful violation or acted in bad fai th, or special
circumstances made an award unjust. Id.
The disparity (78 percent reduction) between the proposed fines and the penalties assessed
in this proceeding is greater than that in L & T Fabrication (50 percent reduction) but less than
that in One 1997 Toyota !And Cruiser (88 percent reduction) and Secretary of IAbor v. Wolkow
Braker Roofing Corp., 2000 WL 1466087 at 3-4 (OSHRC 2000) (93 percent reduction of
proposed fine from $61,000 to $4,000) (attached to GCI's Br. as Ex. 5). 11 Further, it is not
apparent from the record that the Secretary proposed an onerous penalty in order to extract a
speedy settlement, one of the agency practices that the EAJA amendments were designed to
redress. See One 1997 Toyota !And Cruiser, 248 F.3d at 906. On remand, the judge should
weigh these considerations in making a determination as to whether the proposed penalties were
excessive. 12
In addition to addressing whether the proposed penalties were excessive, on remand the
judge must properly analyze the reasonableness of the proposed penalties under the 1996 EAJA
amendments. While the judge analyzed whether the proposed penalties were reasonable, his

11

Wolkow Braker Roofing Corp. is a decision by an administrative law judge at the
Occupational Safety and Health Review Commission ("OSHRC") that was not appealed. If a
judge's decision is not appealed to OSHRC, it becomes a final order after 30 days. 29 C.F.R.
§ 2200.90(d). OSHRC rules appear to be silent on the precedential value of judges' decisions
that are not appealed. Compare Mine Act Rule 72, 29 C.F.R. § 2700.72 ("An unreviewed
decision of a Judge is not a precedent binding upon the Commission.").
12

Because an EAJA award requires that the government's demand be both unreasonable

and excessive, the judge need not decide whether the proposed penalties are excessive if he again
concludes that the proposed penalties are not unreasonable. As noted above, in L & T

Fabrication, the Commission did not determine whether the Secretary's proposed penalty was
excessive, because it concluded that it was reasonable. 22 FMSHRC at 515.
10

analysis was in the context of treating GCI as a prevailing party and evaluating whether the
Secretary's pre-litigation and litigation positions were substantially justified. 24 FMSHRC at
574-77. The Commission's decision in L & T Fabrication again is instructive in the analysis that
the judge should follow in addressing whether the government's demand was unreasonable when
compared to the judge's decision in the Mine Act proceeding.
In L & T Fabrication, the Commission examined the Petition for Assessment of Penalty to
ascertain the reasonableness of the proposed penalty. 22 FMSHRC at 515-16, quoting Joint
Statement at S3244 ("Clearly, the Secretary made 'a reasonable effort [here] to match the penalty
to the actual facts and circumstances the case."'). In this proceeding, the fi le in each docket
contained several documents relating to how MSHA determined the assessed value of the
citations. 13
However, in weighing the reasonableness of the Secretary's proposed penalties, the
primary issue is whether the Secretary sufficiently considered GCI's evidence of its ability to
continue in business when that information was submitted. The judge largely rejected GCI's
argument that the Secretary failed to consider this information, stating" ... the record does not
substantiate this claim." 24 FMSHR.C at 575. Therefore, the issue before us is whether
substantial evidence supports the judge's finding. 14
Neither party disputes the fact that GCI submitted financial information to MSHA. See
GCI Br. at Ex. l; Sec. Br. at 25. Indeed, the parties discussed lower penalties prior to trial in light
of this information. However, neither GCI's submissions nor the parties' subsequent negotiations
resulted in the Secretary revising her proposed penalties. Before the Commission, both GCI and
the Secretary argued at length over the timing of the submission of GCI' s financial documents.
The Secretary argues that she cannot be charged with knowledge of GCI's financial condition
because the information was not submitted until after the penalty proposals had been issued in the

13

In each docket, the Secretary filed a Petition for Assessment of Penalty. Attached to
the Petition was the Proposed Assessment; a sheet listing the citations, the penalty criteria and
points assigned to each violation, the maximum penalty based on total penalty points, and the
proposed penalty (which, in all cases, was less than the maximum penalty allowed in the
Secretary's regulations); and the underlying citations. See, e.g., Pet. for Assessment of Penalty,
dated April 23, 1999, Docket No. CENT 99-179. In addition, many of the files had a Proposed
Assessment Data Sheet, which contained information regarding the nature of GCI's operation,
past violations, and number of inspection days.
14

"Substantial evidence" means "'such relevant evidence as a reasonable mind might
accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The Commission in Contractors Sand & Gravel, 20 FMSHRC at 966-67, 978, held
that the substantial evidence test is the appropriate standard of review for a judge's factual
determinations in an BAJA proceeding.
11

vast majority of citations. Sec. Br. at 25. GCI contends that requiring it to submit financial
information and argue that it is unable to pay penalties prior to their issuance violates due process.
GCI Br. at 9. GCI further contends that even requiring it to submit financial information during a
30-day period after issuance of proposed penalties is inadequate. Id.
While the regulations do not specifically address the timing of submission of financial data
(30 C.F.R. § 100.3(h)), 15 the Secretary's Program Policy Manual does. 16 Part 100.3(h) provides:
Within 30 days of receipt of a proposed assessment, an operator
may submit a written request to the District Manager for review of
its financial status .... Upon receipt of such request, MSHA will
suspend processing of the case until a determination is made as to
whether a financial reduction is warranted.
III MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 100, at 46 (200 l) ("PPM'). 17 The
PPM further provides that the District Manager will forward the information submitted along with
a memorandum to the Office of Assessments, which decides whether any penalty adjustment
should be made. Id. Finally, the PPM specifies that the Office of Assessments "will notify the

15

The Secretary's regulation, 30 C.F.R. § 100.3(h), provides, in pertinent part:
The operator may submit information to the District Manager
concerning the business financial status to show that payment of
the penalty will affect the operator's ability to continue in business.
If the information provided by the operator indicates that the
penalty will adversely affect the ability to continue in business the
penalty may be adjusted.

16

The Commission has long held that the PPM is not binding on the Secretary or the
Commission. See D.H. Blattner & Sons, Inc. , 18 FMSHRC 1580, 1586 (Sept. 1996), quoting
King Knob Coal Co. , 3 FMSHRC 1417, 1420 (June 1981). Nevertheless, the PPM is a policy
statement that, in this instance, complements the Secretary's regulation and fills in a significant
gap regarding the timing of the submission of financial data and the nature and timing of the
Secretary's response. See 30 C.F.R. § 100.3(h). Moreover, in weighing the reasonableness of
the Secretary's position in a prior EAJA proceeding involving a prevailing party, the
Commission relied on "the clear language of the PPM." See Black Diamond, 21 FMSHRC at
1195, 1198 (referring to PPM's definition of "construction work" that is exempt from Mine Act
coverage).
17

The section of the PPM cited was issued on July 3, 2001. Prior to that date, the
procedure for submitting financial data was included in a Program Policy Letter issued by
MSHA. P99-III-5 (1999) ("PPL"). The procedure specified in the PPL was identical to that in
thePPM. Id.
12

operator of the final decision via certified mail" and the operator will have 30 days to pay the
proposed penalty or notify MSHA of its intention to contest the proposed penalty. Id.
Consistent with the procedures outlined in the PPM, in a letter dated June 27, 2000, and
addressed to MSHA's district manager, GCI's attorney requested "pursuant to§ 100.3(h) of the
Act, a review of its financial status" and submitted financial information for review in relation to
three identified citations "and all other outstanding proposed assessments." GCI Resp. to Opp'n
to Appl., Ex. 4. Following the hearing on the proposed penalties in the Mine Act proceeding, GCI
argued to the judge that the PPM provided a procedure by which it could submit financial records
to MSHA's Penalty Assessment Office, that it had regularly done so, but that it had never received
a response, contrary to the requirements of the PPM. 18 GCI Post Hr' g Br. at 30, Docket No.
CENT 2000-420. In support of this position, GCI's president, Craig Jackson, testified at trial that
GCI had submitted to MSHA the financial documents that were exhibits at trial and heard nothing
in response. Tr. 579-80.
Finally, in a Commission order involving a docket that was subsequently consolidated in
the underlying Mine Act proceeding, there is further evidence of GCI's adherence to the
procedures in the PPM. In Georges Colliers, Inc., 22 FMSHRC 939, 939-40 (Aug. 2000), GCI
requested the Commission to reopen two penalty assessments that had become final orders after
the proposed penalty assessments had been misplaced. In the order remanding the matter to the
judge, the Commission noted that GCI had asserted that it submitted financial documents to
MSHA's Compliance Office and that it "was indirectly notified that that office notified the
Regional Solicitor's Office that [GCI] was entitled to financial hardship consideration." Id. at
939. The Secretary did not respond to GCI' s assertion.
In its brief to the Commission, the Secretary dismisses the effect of GCl's June 27 Jetter,
stating that GCI submitted the letter after all but seven of the 559 penalty proposals had been
issued. Sec. Br. at 25. The Secretary concluded that she cannot be "charged with any knowledge
of GCI's financial condition" or that its penalty proposals were unreasonable because she "did not
consider GCI's financial condition in issuing them." Id. However, the Secretary's position
ignores the procedures in the PPM that would have, at the least, generated a response from MSHA
after issuance of the proposed assessments but prior to the issuance of penalty petitions.

18

It is not apparent from the record in the Mine Act proceeding that, in every docket,
GCI submitted financial data within the 30-day period from issuance of the proposed assessment.
In most dockets, following issuance of proposed penalties, GCI moved to stay proceedings
pending consolidation with the lead cases. Thus, the 30-day period for filing financial data (or an
opposition to the penalty assessment) was interrupted in many of the dockets. Clearly, GCI
submitted financial data in some of the dockets that were consolidated with other dockets.
Further, given the absence of record evidence indicating any response from the Secretary to
GCI's submission of financial data, GCI's strict adherence to the 30-day period over the twoyears during which penalty assessments issued would have been futile.
13

In short, the record evidence and the PPM indicate that there was a procedure for
submitting financial data that GCI followed in at least some of the cases. But there is an absence
of record evidence indicating that the Secretary ever responded to GCl's submission. Indeed, the
Secretary now takes the position that she had no obligation to consider the financial data once the
proposed penalties were issued. 19 Accordingly, we find no substantial evidence in the record to
support the judge's rejection of Gel's claim that the Secretary did not consider the effect of the
proposed penalties on its ability to continue in business (24 FMSHRC at 575).20 On remand, the
judge should reconsider his finding in light of this analysis. He should address the effect, in any,
of the Secretary's consideration of and response to GCI's financial data after the issuance of
proposed penalties, given the procedures in the PPM. 21 Specifically, he must consider the
significance of the Secretary's apparent failure to respond to GCI' s submission of financial data,
either in writing (as provided for in the PPM) or by modifying the penalty amounts, in
determining whether she made "a reasonable effort [here] to match the penalty to the actual facts
and circumstances of the case." L & T Fabrication, 22 FMSHRC at 515-16 (citation omitted).
As a final matter on the issue of reasonableness of the Secretary's demand, the judge noted
that his conclusion that the Secretary's proposed penalties would affect GCI's ability to remain in
business was based on documentary evidence submitted at trial and his crediting GCI' s president,
Craig Jackson. 24 FMSHRC at 577. The Commission in L & T Fabrication commented on the

19

Notwithstanding the guidance in the PPM, the Secretary's regulations do not require
adjustment of penalties based on the operator's financial status. See 30 C.F.R. § 100.3(h) ("If the
information provided by the operator indicates that the penalty will adversely affect the ability to
continue in business the penalty may be adjusted.") (emphasis added). The PPM, however, states
that MSHA' s Office of Assessments will notify an operator of its "final decision" on any penalty
adjustment via certified mail. PPM, Part 100 at 46.
20

GCI' s argues that, in the event of a remand, it should have the opportunity of a
evidentiary hearing. GCI Br. at 13. GCI further requests that it be allowed to move to compel
production of documents and to depose an MSHA official. Id. at 13 n.1 8. If the parties believe
that the judge needs to order further proceedings, they should make their request to the judge in
accordance with BAJA Rule 306(d), 29 C.F.R. § 2704.306(d) ("A request that the judge order
further proceedings ... shall specifically identify the information sought ... and shall explain
why the additional proceedings are necessary to resolve the issues.").
21

The judge was understandably reluctant "to delve into [the parties'] settlement
discussions," particularly given the lack of "an undisputed, fully documented settlement
proposal." 24 FMSHRC at 577 & n.l. As the court stated in One 1997 Toyota Land Cruiser,
248 F.3d at 905, "The BAJA defines 'demand' as a static concept and not one that
metamorphoses over the course of settlement negotiations." Accordingly, the lack of any written
revised penalty assessments from MSHA dictates that the judge only consider the proposed
penalty assessments issued by MSHA. See 5 U.S.C. § 504(b)(l)(F) (defining "demand" in part
as " the express demand of the agency which led to the adversary adjudication.").
14

unique role of its judges under section l lO(i) to assess penalties de novo based upon the statutory
criteria and the record evidence developed during the course of a hearing. 22 FMSHRC at 516.
For that reason, the Commission concluded that it was not unusual that a judge would reduce a
proposed penalty because he determined to give greater weight to certain of the penalty criteria.
Id. That rationale is, of course, applicable to the instant proceeding, and the judge should consider
it in his determination of whether the Secretary's demands were reasonable.22 However, the Mine
Act does not preclude the Secretary from considering facts relevant to the penalty criteria because
final authority to assess penalties lies with the judge. Indeed, the Secretary's regulations and the
PPM provide an opportunity for MSHA to consider GCI's ability to continue in business in light
of proposed penalties and that, in no way, detracts from the central role of the judge.
Before the Commission, the Secretary argues that GCI should be denied attorney's fees
because EAJA, 5 U.S.C. § 504(a)(4), precludes an award if GCI committed willful violations or
acted in bad faith, or because special circumstances make an award unjust. Sec. Br. at 35-36. In
support, the Secretary argues that GCI committed 559 violations that repeatedly endangered the
lives and safety of miners, including 272 violations stipulated to be significant and substantial
(S&S), and that it committed 39 violations as a result of its unwarrantable failure. Id. at 36-39 &
n.13 . If, on remand, the judge concludes that the Secretary's demand was excessive and
unreasonable, he should consider whether an exception to the grant of an award exists. 29 C.F.R.
§ 2704.307. See One 1997 Toyota La.nd Cruiser, 248 F.3d at 906. In the present record, there are
no findings from the judge on these issues. Given the judge's extensive involvement with the
parties over a period of years in the underlying Mine Act proceeding, he should make findings in
these areas in the first instance.
In sum, on remand, the judge must use the appropriate analytical frame work, established
in the Commission's L & T Fabrication decision, for determining whether the Secretary's
proposed penalties were excessive and unreasonable. Further, the judge must address GCI's
submission of financial data and the Secretary's response, in light of section 100.3(h) and the
PPM. Finally, in the event that the judge determines that the Secretary's proposed penalties were
excessive and unreasonable, he should proceed to address whether GCI committed willful
violations or acted in bad faith, or whether special circumstances make an award unjust.

22

We note that GCI's president Craig Jackson's trial testimony was limited to describing
Heller's involvement with GCI and authenticating and describing GCI's financial statements,
including a flow of funds chart and security agreement (Resp. Ex. 6), a balance sheet (Resp. Ex.
8), cash flow analysis (Resp. Ex. 9), a letter from Heller concerning default of loan agreement
(Resp. Ex. 10), and GCI's 1999 federal income tax return (Resp. Ex. 11). See Tr. 570-633.
Thus, there was no competing witness or conflicting set of documents that had to be evaluated by
the judge in determining what weight to give GCI's financial circumstances in assessing
penalties.
15

ill.

Conclusion
Based on the foregoing, we vacate the judge's decision and remand this proceeding for
further consideration consistent with our analysis.

-;F:.276

==:!

Robert H. Beatty, Jr., Commissioner

16

Commissioner Jordan, dissenting:
The Commission's Equal Access to Justice Act ("EAJA") regulations require a party to
file a petition for discretionary review of a judge's EAJA decision within 30 days of the issuance
of that initial ruling. Commission Procedural Rule 308(b), 29 C.F.R. § 2704.308(b). Georges
Colliers, Inc. ("GCI") filed its petition 35 days after the underlying decision was issued. Because
the petition was untimely, the Commission should not review this case.
The operator asks the Commission to excuse the late-filing of the petition because its
attorney received the judge's decision on July 17, 2002, 33 days after it was issued. GCI Reply to
Sec. Opp'n to PDR at 1. Claiming that "[i]t is possible that the letter was miss-directed [sic] to
another mailbox," the operator' s counsel explained that she
has a home office that receives mail at a residential bank of twenty
(20) mailboxes located approximately one-half (1/2) block from
counsel's residence. Mail is frequently miss-boxed and is either
placed in an outgoing slot, placed on top of the mail-box, or
eventually hand delivered to the residence by the incorrect receiver
of said mail.
Id. at 1-2. 1
Under even a relatively lenient standard,2 the excuse offered by the operator's counsel
would not suffice. See, e.g., Gibbs v. Air Canada, 810 F.2d 1529, 1537-38 (11th Cir. 1987)
(holding that default caused by failure to establish minimum procedural safeguards for
determining that action in response to summons and complaint was being taken does not

1

She also argues that she erroneously believed that Commission procedural rules
permitted five additional days for filing because the judge's decision was sent by mail. Id. at 23. My colleagues properly reject this argument. Slip op. at 6 n.5.
2

The majority rightly leaves for a future case the question of how strictly the
Commission should construe its regulation governing the time limits for filing a petition for
discretionary review in an EAJA matter. Slip op. at 6 n.6. I note, however, that if the operator
had failed to file the initial EAJA application on time and offered the same excuse to the
administrative law judge that it provided to the Commission in this case, the EAJA application
would have been rejected. See Long Island Radio Co. v. NLRB, 841F.2d474, 477 (2d Cir.
1988) (holding that 30-day time limitation in 5 U.S.C. § 504(a)(2) for filing an initial application
for attorney's fees for agency proceedings under EAJA is jurisdictional). Similarly, a court of
appeals would have refused to accept this excuse upon the late filing of a petition for review of
this agency's EAJA adjudication. See Howitt v. United States Dep't of Commerce, 897 F.2d
583, 584 (1st Cir. 1990) (recognizing that the circuit courts have unanimously agreed that the
statute's 30-day time limit for appealing agency EAJA decision to court of appeals is
jurisdictional).
17

constitute default through excusable neglect, and claim that mail clerk must have misplaced the
complaint is not a sufficient excuse), reh 'g and reh 'g en bane denied, 816 F.2d 688 (11th Cir.
1987). Her claim that she does not have the ability to receive mail in a timely fashion is a hollow
one, given the fact that she practices law and must often receive time-sensitive material. In this
case, she should have known that the judge's EAJA decision was pending, and that she would
need to meet a deadline to file a petition for review to the Commission if her client chose to
appeal. Nonetheless, she failed to establish a mechanism to ensure that she would routinely
receive mail when it was delivered. The Commission should not reward such a lackadaisical
approach by excusing her late-filed petition. 3
For the foregoing reasons, the operator's petition for review should not be accepted by the
Commission. Accordingly, I respectfully dissent.

3

Unlike my colleagues in the majority, slip op. at 6, I fail to see how the fact that the
judge's decision was not sent by certified mail is relevant. The operator does not claim that the
Commission failed to mail the judge's decision in a timely manner. In fact, there is no evidence
indicating that the judge's decision was received late due to any failure by the Commission. The
only reason offered by the operator for the late receipt of the decision (and thus the late-filed
PDR) is its attorney's inadequate system for receiving mail.
18

Distribution
Elizabeth M. Christian, Esq.
7229 Nohl Ranch Road
Fort Worth, TX 76133
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
Administrative Law Judge David F. Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W. , Suite 9500
Washington, D.C. 20001-2021

19

20

ADMINISTRATIVE LAW JUDGE DEQSIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

January 5, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2002-224-M(A)
A. C. No. 04-01299-05542
Docket No. WEST 2002-226-M
A. C. No. 04-01299-05544

ORIGINAL SIXTEEN TO ONE MINE,
INCORPORATED,
Respondent

Sixteen To One Mine
DECISION

Appearances: Christopher B. Wilkinson, Esq., Office of the Solicitor, U.S. Department of
Labor, San Francisco, California, on behalf of the Petitioner;
Michael M. Miller, President, Original Sixteen to One Mine, Incorporated,
Alleghany, California, on behalf of the Respondent.
Before:

Judge Melick

These cases are before me upon Petitions for Civil Penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994) the "Act," charging Original Sixteen to One Mine, Incorporated (Sixteen to One)
with violations of mandatory standards and proposing civil penalties for the violations. The
general issue before me is whether Sixteen to One violated the cited standards and, if so, what is
the appropriate civil penalty to be assessed in accordance with Section l lO(i) of the Act.
Additional specific issues are addressed as noted.
During hearings, the Secretary vacated Citation No. 7982709 and the parties agreed to
settle Citation Nos. 7982708 and 7982710. (Tr. 248-249). With respect to the latter citations the
Respondent agreed to pay the proposed penalties in full. The proposed settlement is acceptable
considering the criteria under Section l lO(i) of the Act and a corresponding order directing
payment will be incorporated herein.
Citation No. 7995404
Citation No. 7995404, alleges a "significant and substantial" violation of the standard at
30 C.F.R. § 57 .9306 and charges as follows:
A miner was fatally injured at this mine on November 6, 2000, while
operating a Mancha locomotive on the 1700 level when his head struck a
21

protruding ore chute causing it to become wedged between the battery
compartment of the locomotive and the chute. The chute extended into the drift to
the mid point of the train rails at approximately the same height as the locomotive
operator's head. Warning devices had not been installed in advance of the ore
chute to indicate restricted clearance nor had the chute been conspicuously
marked, nor marked at all, to warn and remind miners of the restricted clearance.
The cited standard provides that "[w ]here restricted clearance creates a hazard to persons
on mobile equipment, warning devices shall be installed in advance of the restricted area and the
restricted area shall be conspicuously marked."
The allegations in the citation are undisputed and clearly support the violation as charged.
Indeed, Michael Miller, Sixteen to One's President and CEO, acknowledged that there was no
warning device and that "it was a tremendous hazard" (Tr. 284). In addition, whether or not the
particular violation herein was a causative factor in the cited fatal injuries, the violation was also
clearly "significant and substantial" and of high gravity.
A violation is properly designated as "significant and substantial" if, based on the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature. Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC
1,3-4 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety standard, (2) a discrete safety
hazard -- that is, a measure of danger to safety -- contributed to by the violation,
(3) a reasonable likelihood that the hazard contributed to will result in an injury,
and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.

See also Austin Power Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), afj'g 9
FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such
injury must be evaluated in terms of continued normal mining operations without any
assumptions as to abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984);
See also Halfway, ./nc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).

22

The undisputed evidence shows that Mark Fussell, the deceased, was operating the cited
locomotive on the 1700 level of the mine when his head struck a protruding ore chute and
became wedged between the battery compartment of the locomotive and the chute. The chute
extended into the drift to the midpoint of the train rails at approximately the same height as the
locomotive operator's head. There was only a two-inch clearance between the top of the
locomotive and the bottom of the ore chute. From the position in which Fussell was seated on
the locomotive there was therefore insufficient clearance for his head to pass beneath the
extended chute. The fai lure under these circumstances to have provided any advance warning or
any marking on the chute itself, to warn of the deadly consequences presented by the protruding
chute was clearly a "significant and substantial" violation warranting a finding of high gravity.
As previously noted, Miller himself acknowledged that "it was a tremendous hazard" (Tr. 284).
The Respondent argues that it was not negligent in committing the violation because the
accident was caused entirely by the negligent conduct of the deceased, Mr. Fussell, a rank-andfile miner. Whi le the Secretary agrees that Fussell was highly negligent in fai ling to ensure that
appropriate warnings had been in place, the Secretary argues that Fussell was, under the unique
facts of this case, an agent of the operator whose negligence is imputable to the operator. Under
Commission precedent, the negligence of a rank-and-file miner is not ordinarily imputable to the
operator for purposes of penalty assessment. Secretary v. Martin Marietta Aggregates, 22
FMSHRC 633 (May 2000); Whayne Supply Company, 19 FMSHRC 447 (March 1997); Southern
Ohio Coal Company, 4 FMSHRC 1459 (August 1982). The Secretary argues in her post-hearing
brief, however, that Fussell was an agent because he was designated as a "Lead Miner"
ultimately responsible for the safety and operations of his work group. 1
In deciding whether a miner is an agent of an operator, the Commission has focused on
the miner's functions and not his job title. REB Enterprises Inc., et al. 20 FMSHRC 203, 211
(March 1998); Ambrosia Coal and Construction Co., 18 FMSHRC 1552, 1560 (September
1996). In this regard, Michael Miller, President and CEO of Sixteen to One, described Fussell 's
functions in his opening statement at hearings: 2
Mr. Miller: Okay, Mark Fussell was a certified Lead Miner familiar with
and trained for his position ... Mark Fussell's heading was to slush loose rocks in
an old stope above the 1700 foot level. He chose to prepare the track in the event
the use of an electric train would facilitate his job.

Section 3(e) of the Act defines "agent" as "[a]ny person charged with the
responsibility for the operation of all or a part of a coal or other mine or the supervisor of the
miners in a coal or other mine."
2

W hi le these admissions were made in Miller's opening statement, admissions by
an attorney or other agent of a party in a formal opening statement are conclusive in the case,
unless allowed to be withdrawn. M. Graham, Federal Practice and Procedure: Evidence§ 7023
(Interim Edition); McCormick on Evidence, Fifth Edition, Admissions§ 259.
23

A Lead Miner is the one responsible to identify and fix any safety issues in
his heading. Anyone in the mining business will testify that as a Lead miner it was
his job to identify and correct any defects in regulations. Mark Fussell was aware
of this.

****

Mr. Miller: A Lead Miner is a miner who has been task trained for all of
the various jobs required in our particular operation. A Lead miner does not have
to have any management or foreman capabilities. He basically would be. In our
situation, the person in charge over a Miner II, which we have. And we have a
Miner I as well.
The Court: You mean other persons - Mr. Miller: Yeah. We started with raw people that have no background in
mining at all and have trained them to become Lead miners at the Sixteen to One.
So he was in the highest capacity that you could have as a miner at the Sixteen to
One.
The Court: He was paid more than regular miners?
Mr. Miller: Yeah. We started with raw people that have no background in
mining at all and have trained them to become Lead miners at the Sixteen to One.
So he was in the highest capacity that you could have as a miner at the Sixteen to
One.
The Court: He was paid more than regular miners?

Mr. Miller: We have a scale, a pay scale. He was paid at the pay scale of a
Lead Miner versus a Miner II or Miner I. But we also have experience Levels for
Lead miners and others. He was not our highest paid miner. We have miners that
are Lead miners that make more money.
The Court: But over the persons he had charge of he was paid higher.
Mr. Miller: Yes.
The Court: He was in charge of other miners?
Mr. Miller: If he was in a heading where he had a Miner I or II under him
he would be paid more.
The Court: I see. But at this time he did not have anyone under him?

24

Mr. Miller: He was the Lead miner, and Vince Kautz was what we call in
our business partners. So he was the partner to Mark. I don't know exactly if
Vince was paid more or less than Mark.
The Court: But Vince Kautz was above Mr. Fussell?

Mr. Miller: No.
The Court: Who gave the orders to these persons; they wo'uld not give
orders to each other.
Mr. Miller: They would give orders to each other, because we encourage
everyone at the mine to have an opinion. But, however, if there were an ultimate
responsibility it would be Mark.
(Tr. 11-13).

Miller further described Fussell' s functions in his testimony:

Q. [By Mr. Wilkinson] Was [Fussell] considered a Lead Miner?
A. Yes.
Q. There seems to be some question that I don't quite understand yet about a
Lead Miner and management. What was the policies - - what is your understanding of
the policies of the Sixteen to One with relationship to Lead Miners I and Miners II as far
as responsibilities go?
A. Well, I kind of got to paint the picture a little bit. I'm sticking to the subject
here, but you have to understand that the mine is extensive, the workings are in excess of
27 miles. So it's reduced, or it' s necessary that you have individuals that are capable of - multi task oriented individuals who can handle the job that is put before them. No one
person can be in all places at all times. Individuals are trained and brought up to have the
background, training and abi lity to maintain a safe working environment while they're
training less experienced individuals and making progress in a work area.

When you become a Lead Miner your work area is your responsibility. It doesn't
stop there, but on a day-to-day basis the ·overall responsibility and decision-making is that
of the Lead Miner. I think that basically probably could be stipulated as a reality of
mining throughout the industry.

25

Q. Okay. Did the - -

The Court: Do they usually work alone?
The Witness: No, you always work in pairs. Somebody had to be in charge
because there's always difference of opinion in how to do things. And so ultimately the
responsibility has to ride on one person within each group so that progress can be made.
The Court: So the Lead Miner is the person who would be in charge of that
particular work group?
The Witness: That's right. He could have more than one helper, he could have
several helpers, but it's still his responsibility. And he reports directly to the underground
foreman, if there's one: or if not, the miner manager. In this case I was acting as both. I
had both responsibilities.
(Tr. 365-366)

****
There's been testimony that Mr. Fussell was the supervisor or Lead man for Vince
Kautz on the day of the accident: Is that correct?
A. No. He is a Lead Miner. Mr. Wilkinson.

Q. He is a Lead Miner?
A. No. He is a Lead Miner, Mr. Wilkinson.

Q. He is a Lead Miner?

A. He is a Lead Miner.
Q. Right. You also have two other miner positions. Mine I and Miner II: right?
A. I believe that right now all of our people are Lead Miners. I don 't believe that
- - I believe at the time of the accident the individuals that signed the safety sheet would
all have been - - there were only like 12 or 14 of them, and I don't think we had any
Miner I's or Il's. I think they would all fit the requirements of being a Lead Miner.

Q. Didn't you testify - - didn't you in your opening state that, in response to the
Judge's questions, that Mr. Fussell would have been - - there were three positions, Miner
I, Miner II, and then Lead Miner; wasn't that what you said?

26

A. That's how we rate our employees.
Q. Right.

A. It's like GS5, 5 and 10.
Q. Right. And you said that Mr. Fussell was a supervisor of the Miner I and
Miner II people.
A. I said he was a Lead Miner. I said he was a Lead Miner, and I'll say he is a
Lead Miner today. And part of the duties of a Lead Miner are to take authority over your
heading and take the responsibility of that heading. It's just like Mr. Cain taking
responsibility to Mr. Montoya's work. Someone has to take responsibility.
Q. And that was Mr. Fussell's job at the time?

A. That fell under his job description, sure. I mean under his capabilities. He
was a Lead Miner.
Q. Responsible for the area, responsible for safety in that area?
A. Well, yeah.
Q. Responsible for the men working in that area?
A. He's not only responsible, he's required by MSHA Law that only people that
can go into headings are the ones that - - it says right in the manuals, is the only people
that can go in to clean our abandoned areas or areas that have been barricaded are people
that are either designated by the company, the operator, or people that have the talents and
capabilities to do that. And Mr. Fussell fully met that criteria.

Mr. Wilkinson: Would you read back my question.
[Whereupon the reporter read back the last question]
Q. Would you answer my question? Was Mr. Fussell responsible for that area?
A. Yes.

Q. Was he responsible for the safety in that area?
A. Yes.
Q. Was he responsible for the men in that area?

27

A. He would be, yes.

(Tr. 459-461).

While Fussell, like the Lead Man in REB Enterprises, apparently had no independent
authority to hire, fire or discipline other miners, it is generally true that many foremen do not
have that authority and those foreman are nevertheless generally considered to be agents of the
operator.
In any event, I find this case to be distinguishable from REB Enterprises. Fussell in this
case had the ultimate responsibility on a "day-to-day" basis over Miners I and II and over other
Lead Miners (Tr. 11-13, 365-366). He also had the authority and responsibility for the work
group in his heading, including safety and compliance with the law and was responsible for
signing the "safety sheets" (Tr. 459-461). It may therefore reasonably be inferred that Fussell
was responsible for the on-shift safety examinations and for the recordation of such examinations
under 30 C.F.R. § 57.1800(2). These delegated responsibilities are comparable to those of the
rank-and-file miner in Rochester and Pittsburgh, 13 FMSHRC at 194-196, who had been
delegated the responsibility to conduct the weekly shift examinations. Fussell in this case was
similarly responsible and I therefore find that he was an agent of the Respondent. Thus, Fussell's
admittedly negligent conduct in this case may be imputed to the Respondent for civil penalty
purposes.
Citation No. 7995405
Citation No. 7995405 alleges a "significant and substantial" violation of the standard at
30 C.F.R. § 57.14100 and charges as follows:
A miner was fatally injured at this mine on November 6, 2000, when he
struck his head on an ore chute protruding into the drift at approximately head
level, after he engaged the speed controller of the Mancha locomotive he was
operating. The locomotive had a clearly evident mechanical defect which had not
been corrected in a timely manner to prevent a hazard to the miner. Alternatively,
the locomotive was not taken out of service and placed in a designated area posted
for that purpose, nor was the vehicle tagged or other effective method of marking
the defective items used to prohibit further use of the vehicle until the noticeable
defect was corrected.
This defect was easily detectable during a pre-operational or other similar
inspection. It made continued operation hazardous to persons by causing the
locomotive to be difficult to control at slow speeds or when power starting from a
stopped position. The machine's speed controller first point of power (slow
speed) to th~ drive motor was not functioning as designed; thus, the locomotive
would not move until the second point of power was contacted, when it would
then jump or lurch forward.

28

The cited standard provides as follows:
(a) Self-propelled mobile equipment to be used during a shift shall be
inspected by the equipment operator before being placed in operation on that shift.
(b) Defects on any equipment, machinery, and tools that affect safety shall
be corrected in a timely manner to prevent the creation of a hazard to persons.
(c) When defects make continued operation hazardous to persons, the
defective items including self-propelled mobile equipment shall be taken out of
service and placed in a designated area posted for that purpose, or a tag or other
effective method of marking the defective items shall be used to prohibit further
use until the defects are corrected.
(d) Defects on self-propelled mobile equipment affecting safety, which are
not corrected immediately, shall be reported to, and recorded by, the mine
operator. The records shall be kept at the mine of nearest mine office from the
date the defects are recorded, until the defects are corrected. Such records shall be
made available for inspection by an authorized representative of the Secretary.
The Secretary maintains that the evidence supports separate violations of all four
subsections of the cited standard. According to the Secretary, the ci ted locomotive was defective
in that before the accident, a resistor had burned out thereby disabling the first point (first gear)
of the locomotive. According to the Secretary this necessitated that the deceased start the
locomotive in the second point (second gear), and, by doing so, caused the locomotive to lurch
forward and place the decedent's head in position to strike the protruding ore chute.
In support of this scenario, the Secretary called MSHA Electrical Engineer Arlie Massey,
as an expert witness. Massey is a graduate electrical engineer and has been employed by MSHA
as an electrical engineer since 1975. In this capacity he conducts accident investigations. He is
familiar with electric locomotives. In stating his opinion, Massey assumed the following
undisputed facts concerning the cited locomotive: (1) that the locomotive's controller itself had
no malfunction; (2) that the power connector to the battery was functioning before the accident;
and (3) the locomotive had no other broken parts. Massey also examined and considered the
electrical schematic diagram for the subject locomotive (Secretary's Exhibit L). Massey further
assumed as fact that the power connector had become separated during the accident and it was at
that point unable to power the locomotive. This latter assumption is supported by the out-ofcourt statement of Respondent's employee, Vincent Kautz, as provided to MSHA investigator
Steven Cain. Kautz told Cain that he was nearby when the accident occurred and in his attempt
to rescue Fussell, ~as unable to get the controller to work. He therefore physically pushed the
locomotive away from the chute to free Fussell. Cain, who was the MSHA supervisory mine
inspector in charge of the investigation, had arrived at the mine the day after the accident, and,
after inspecting the locomotive, found that the battery connector was bent and broken and had to

29

be held down to make a connection. The locomotive also "lurched" in both directions because it
would not move in the first point but only in the second and third points. Upon further testing it
was discovered that the resistor was burned out thereby disabling the first point.
It is noted that Kautz also told Cain that he manually pushed the locomotive a few feet to
free Fussell. Kautz also told Cain that when Stephen Shappert (who did not testify at the
hearing) showed up they were able to get the locomotive started. Steven Cain also testified that
Shappert told him in an interview that there was trouble with the connector after the accident.
Kautz also testified that he manually pushed the locomotive in an attempt to rescue Fussell and
acknowledged that the battery connector had broken free from its mount. While Kautz believed
that the resistor burned out after the accident when the locomotive became jammed under the ore
chute thereby stopping its movement, he did not hear wheel spinning on the locomotive.
Under all the circumstances it is more reasonable to believe, and I find credible, that the
power connector had in fact been damaged in the accident sufficient to make the locomotive
inoperative. Accordingly, Massey's assumption that the power connector had been separated
during the accident and that it was at that point unable to power the locomotive, is the more
credible and the appropriate assumption to make. I therefore accept Massey's conclusion that the
resistor was defective before the accident and was the defect causing the locomotive to lurch
forward when it was put in the second point.
Within this framework of evidence, I find that the burned out resistor constituted a defect
which made continuing operation of the locomotive hazardous. Since the locomotive was not
taken out of service there was a violation of the cited standard as charged.
The violation was also clearly "significant and substantial" and of high gravity. It is
reasonably likely that the lurching of the locomotive caused by the necessity to start the
locomotive in second point (gear) could have caused a whip-lashing of the operator's head or the
striking of persons in front of the locomotive. It may also reasonably been inferred that the
accident here at issue was caused by the lurching motion of the locomotive thereby preventing
Mr. Fussell from ducking beneath the exposed and protruding ore chute.
For the reasons already stated with respect to the prior violation, I also fi nd that Fussell's
negligence in faili ng to take the locomotive out of service was negligence imputable to the
operator.
Citation No. 7992100
Citation No. 7992100, alleges a "significant and substantial" violation of the standard at
30 C.F.R. § 48.5 and charges as follows:
Bob Hale, a "newly employed inexperienced miner" hired on or around
12128/99 was working underground. Joe Barquilla, a "newly employed
30

inexperienced miner" hired on or around 3/31/00 was working underground. They
had not received all of the MSHA required forty hour new miner training prior to
assuming the underground work duties. The mfoe operator was aware of the Part
48 requirements. Mr. Hale and Mr. Barquilla had no previous mining experience.
The operator is hereby ordered to withdraw Bob Hale and Joe Barquilla from the
mine until they have received the required training. The Federal Mine Safety and
Health Act of 1977 declares that an untrained miner is a hazard to himself and to
others.
The citation accordingly charges two violations of the cited standard in that two miners,
Bob Hale and Joe Barquilla, were alleged to not have had completed the required forty-hour new
miner training. The cited standard, 30 C.F.R. § 48.5, provides in part that "each new miner shall
receive no less than forty hours of training as prescribed in this section before such miner is
assigned to work duties." That standard also sets forth the specific courses of training.
I find that the Secretary has indeed proven the violations as charged. Curtis Petty was, on
September 21, 2000, a mine inspector for the Department of Labor's Mine Safety and Health
Administration. According to the undisputed testimony of Petty, the training forms required to
be maintained by the mine operator, i.e., MSHA Form 5000-3, that were produced on September
21, 2000, for his examination showed that the training for the two-cited miners had not covered
all of the subjects required by the cited standard. Indeed, mine manager Farrell,_in effect,
admitted to the violation when he told Inspector Petty that he thought that he was permitted
under the cited regulation to complete the required training over a period of time and after the
miners actually commenced work
I also find that the violations were "significant and substantial" and of high gravity. It is
noted that the violation was cited on September 21, 2000, and that Hale had been working in the
Sixteen to One Mine since December 1999, without having completed the required training. In
addition, the evidence shows that Barquilla had been working at the mine since March 2000,
without having completed the required training. In reaching these conclusions I have not
disregarded the operator's testimony that the miners at issue had, in effect, actually been fully
trained. In the face of its own contradictory records however, I can give such testimony but little
weight.
I also find that the violation was the result of high operator negligence. I find from his
own statement to Inspector Petty that Mine Manager Jonathan Farrell knew miner training had to
be completed before these miners commenced work and that he knew that the cited miners had
not completed their training by September 21, 2000, at the time the citation was issued.
In evaluating operator negligence I have not disregarded the inspector's testimony that he
found only "moderate" negligence, accepting as mitigation mine manager Farrell's statement that
he believed that new miner training could be provided gradually over a period of time. This
statement by Farrell constitutes an admission that he knew these miners had not completed their
31

trammg. I also find that the cited regulation is unambiguous in requiring that such training must
be received "before such miner is assigned to work duties."
I also note in this connection that Farrell himself testified at hearings that he received all
of his own new miner training before he started working. Moreover, it is noted that one of the
new miners, Bob Hale, had not completed his training even after nine months on the job and that
the other miner, Joe Barquilla, had not completed his training even after six months on the job.
Even a lay person would understand that the failure to train the new miners regarding the serious
hazards inherent in underground mining for six months or more would be extremely dangerous.
Citation No. 7987759
Citation No. 7987759 alleges a "significant and substantial" violation of the standard at
30 C.F.R. § 57.15004 and charges as follows:
The mine manager failed to wear safety glasses, goggles, or face shields, or
other suitable protective devices while driving nails into timbers with the back of a
pipe wrench. This occurred in-the south end of the 1700 level. Flying steel chips
could easily cause permanently disabling eye injuries. Discussions had been held
with the mine manager on previous inspections about the requirements for the use
of eye protection.
The cited standard, 30 C.F.R. § 57.15004, provides that "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 a plant where a hazard exists which could cause injury to unprotected eyes."
There is no dispute that on September 21, 2000, mine manager Farrell, in the presence of
MSHA Inspector Bruce Allard, drove a nail or screw into a piece of wood with a wrench without
wearing eye protection. The issue is whether this was a hazard within the meaning of the cited
standard. I find that it was a hazard based on the credible testimony of Inspector Allard. In this
regard Allard testified that striking a rusty nail with a pipe wrench could result in a piece of the
nail breaking off and injuring one's eye.
I do not however find that the violation was "significant and substantial" or of high
gravity, nor do I find that the mine manager was seriously negligent in his failure to use eye
protection on this occasion.
In reaching these conclusions I have not disregarded Respondent's argument that the
"nail" inspector Allard referenced in his citation was actually a "screw." I find no legal
significance to the d.istinction inasmuch as the so-called "screw" was being hammered as if it
were a nail. It is not therefore a crucial allegation in the citation. I accept however the testimony
of mine manger Farrell that the screw was not rusty and that it was hammered into soft rotten
wood and that he merely gave the screw a "slight tap." Farrell was in the best position to know
32

the condition of the screw and wood. Farrell also testified that in his judgement and based on his
many years of mining experience there was no hazard to his eyes in the procedure he was
following. I note that mine president Miller also confirmed that the wood into which the roofing
screw was being nailed was "rotten."
Civil Penalty Analysis
In assessing a civil penalty under Section l lO(i) of the Act, the Commission and its
judges must consider the operator's history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charged, whether the operator was negligent,
the affect on the operator's ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve compliance after
notification of the violation. Sixteen to One does not have a serious history of violations. It is a
small size business and achieved rapid compliance after notice of the violations herein. Gravity
and negligence have been previously discussed. Sixteen to One President, Miller, testified and
presented documentary evidence with respect to the effect of the proposed penalties on Sixteen to
One's ability to continue in business.
Evidence of an operator's financial condition is relevant to the ability to continue in
business criterion. Unique Electric, 20 FMSHRC 1119, 1122-23 (October 1998). In this regard
Miller testified that Sixteen to One was "technically insolvent" (Tr. 440). He acknowledges,
however, that the company is unable to provide an independent audit of its financial condition
(Tr. 441). In-house financial statements were provided instead (Respondent's Exh. T). Such
unaudited statements do not, of course, have the assurance that they are consistent with fact or
presented in accordance with sound accounting principles. The record also shows that the
operator has continued to do business and has contracted with five miners to do so. The operator
also retains significant assets, including a gold nugget worth about $44,000 and a gold collection
worth about $ 1.5 million (Tr. 458-459).3
I have considered the evidence of the Respondent's fi nancial condition along with the
other statutory factors and conclude that the civil penalties ordered herein are appropriate. The
reduced penalties take into consideration the Respondent's financial condition but also the
significant gravity and negligence associated with Citation No. 7995404 and 7995405.

3

The affidavit of Allen Watson, submitted by the Secretary post hearing was not
admitted as evidence and therefore is not considered as evidence herein.
33

ORDER
Citation No. 7982709 is vacated. Citation Nos. 7982708, 7982710, 7995404, 7995405,
7992100 and 7987759 are affirmed and Original Sixteen to One Mine Incorporated, is hereby
directed to pay civil penalties of $55.00, $55.00, $12,000.00, $7,500.00, $50.00 and $100.00,
respectively for the violations charged therein within 40 days of the date of this decision.

I
i

\

GaryM~~

Administrative Law Judge

Distribution: (Certified Mail)
Christopher B. Wilkinson, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson
St., Suite 1110, San Francisco, CA 94105
Michael M. Miller, President, Original Sixteen to One Mine, Inc., P.O. Box 909, 527 Miners St.,
Alleghany, CA 95910
\mca

34

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

January 14, 2004
MARTIN COUNTY COAL
CORPORATION,
Contestant

CONTEST PROCEEDINGS
Docket No. KENT 2002-42-R
Citation No. 7144401;10/17/0l

v.

Docket No. KENT 2002-44-R
Citation No. 7144403; 10/17/01

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

Docket No. KENT 2002-45-R
Citation No. 7144404; 10/17/01
Preparation Plant
Mine ID No. 15-05106

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2002-261
A.C. No. 15-05106-03570
Docket No. KENT 2002-262
A.C. No. 15-05106-03571

V.

MARTIN COUNT Y COAL
CORPORATION,
Respondent.

Preparation Plant

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 2002-251
A.C. No. 15-05106-03501 WNH

V.

GEO/ENVIROmffiNTAL ASSOCIATES,
Respondent

Preparation Plant

DECISION
Appearances: Melanie J . Kilpatrick, Esq., Marco Rajkovich, Esq., Wyatt, Tarrant, & Combs,
LLP, Lexington, Kentucky, for Martin County Coal Corporation;
35

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Charleston, West
Virginia for GEO/Environmental Associates;
James B. Crawford, Esq., U.S. Department of Labor, Office of the Solicitor,
Arlington, Virginia, for the Secretary.
Before:

Judge Schroeder
INTRODUCTION

These cases are before me as a result of citations written following the failure of a
processing plant impoundment at the Martin County Coal mine near Prestonsburg, Kentucky.
Of the seven dockets, three were filed as contests of the citations and the four remaining were
Petitions for the Assessment of Civil Penalties. The impoundment failure occurred on
October 11, 2000. GEO/ENVIRONI\lfENTAL ASSOCIATES is a consultant hired by Martin
County Coal to inspect the impoundment and to prepare certifications of compliance with
regulatory requirements.
PROCEDURAL HISTORY
The seven dockets heard in a combined proceeding involve a total of eight citations.
After completion of discovery, the hearing was scheduled in two parts. The majority of the fact
witnesses were heard during the week of June 9, 2003, and the expert witnesses along with the
remainder of the fact witnesses were heard during the week of August 4, 2003. 1 At the
conclusion of th'e Secretary's case in chief (except for expert witnesses), I granted a motion to
dismiss two of the eight citations for a failure of proof. A summary of my ruling on that motion
is attached as Appendix A to this Decision. The Secretary's motion to reconsider my dismissal
was denied. The reasons for my denial of that motion are summarized in Appendix A.
After the completion of testimony and presentation of documentary evidence, the parties
were given time to submit written arguments. I have considered all of this material with some
care and reached the conclusions stated below.
FINDINGS OF FACT
Jurisdictional Findings
The parties have stipulated to the facts essential to jurisdiction in this case. (Tr. 5) Martin
County Coal Corporation (hereafter MCCC) is a large operator of both surface and underground
mine in eastern Kentucky. It is sufficiently large that the Civil Penalties proposed by the
Secretary would not hinder the ability of MCCC to stay in business. GEO/Environmental

I Because of the split in hearing schedule the record of the June hearing will be cited as
(Tr. June Session, pg nn) while the August hearing will be cited as (Tr. August Session, pg nn).

36

Associates (hereafter GEO) is an independent contractor providing engineering services to
MCCC in connection with the operation of the mine refuse impoundment that is the genesis of
this case. GEO is sufficiently large that the Civil Penalties proposed by the Secretary would not
hinder the ability of GEO to stay in business.
Big Branch Impoundment History
This case is about a fairly large impoundment created at the headwaters of Big Branch
Creek by MCCC in the early 1980s. With the agreement and assistance of all counsel, I had the
opportunity to visit the impoundment at the conclusion of the first day of testimony in the
hearing.
Any impoundment is designed and built to contain liquids. What is striking about the
MCCC impoundment is that it was not designed and built to contain water, b.u t rather to contain
a combination of water and wastes from the coal processing plant used by MCCC to get mined
coal ready to ship to market. This storage is an alternative to dumping these wastes into nearby
streams, an alternative obviously not acceptable in current society. The impoundment also serves
as a supplemental source for water to be used by the processing plant. To that extent, the coal
processing system is an example of both recycling and safe waste disposal. All of those positive
sentiments, however, are dependent upon the impoundment working as it was designed to work.
At least twice in its history the impoundment fai led and large quantities of v..:aste laden water
were released into the surrounding community.
This kind of impoundment has another important difference from the typical water
impoundment. In this impoundment the water enters the impoundment at the downstream end
and is removed from the upstream end. This is the opposite of a flood control impoundment, for
example, where silt laden water enters the impoundment at the upstream end and somewhat
clarified water exits the dam at the downstream end. This difference has important consequences
on the operation and maintenance of the impoundment. When water flows into the upstream
end of most impoundments it begins to drop silt to form a delta. Most of the silt has been
removed by the time the water has reached to containment structure. Water penetration and
leakage are an issue of adequate design and maintenance of the dam. When water flows into the
downstream end of a coal refuse impoundment it begins to drop first the big pieces and then the
smaller pieces of material. The big pieces are used to heighten and expand the dam. The dam
grows as the water level becomes higher. The water level becomes higher as silt fills the storage
capacity of the impoundment. Since water is being removed from the upstream end of the pool,
fi ne silt is eventually deposited on the upstream edges of the pool. To the extent the water level
fluctuates, the deposited silt covers an area of the banks of the impoundment that is over the
water level. The water near the upstream end of the pool is clearer and more capable of
penetrating porous rock in the banks.
In 1994, the Big Branch Refuse lmpoundment was operated in the general manner

described above. It was known that the impoundment rested against banks which covered
37

underground mines that had been abandoned but which honey-combed the hills. A portion of the
bank "subsided" into the abandoned mines and the pool began to flow through the mine and out
the other side. This leak was contained by pushing rock and coal refuse into the "subsided" hole
until the water flow stopped.
It was obvious that the impoundment needed some corrective measures to both
permanently close the leak and to attempt to prevent leaks in the future. An engineering
consultant prepared a plan that was submitted to MSHA for review and approval. Ogden
Environmental & Energy Services, a geotechnical engineering consulting firm hired by MCCC,
prepared a report with remedial measures. This became an Impoundment Sealing Plan that was
approved by MSHA on October 20, 1994. (Gov. Exh. 1, page 11; Gov. Exh. 2, 2a, 2b, & 5;
June Tr. 56). The plan called for the construction of a "seepage" barrier around the perimeter of
the impoundment except for those portions which did not have mine works below. The barrier
was constructed of material that needed to be moved to surface mine another coal seam in the
impoundment area. The material was primarily blasted sandstone of random sizes and slate, both
pushed into the impoundment and leveled by dozer. The plan contemplated that fine refuse
material would be deposited by the water on the barrier to decrease permeability of the barrier.
The plan also included the construction of underground seals to limit the flow of water into
active areas of the mine.
In the plan, some portion of the work was labeled "short term" and the remainder was
characterized as "long term." Included in the discussion of "short term" measures is a
requirement to monitor the flow of water from the South Mains Portal as to both color and
quantity. The monitoring would be initially on a daily basis and later on a weekly basis as part of
regular impoundment inspections. The parties profoundly disagree on whether weekly
monitoring was intended to be a part of the Impoundment Sealing Plan as approved in 1994 or
was simply prudent management by MCCC. The critical language appears only in the Plan as it
was submitted the day after the impoundment failure, May 23, 1994. (Exh. MCC Al at page
MCC 12303). The text reads as follows:
4) Flow from the South Mains entry will be monitored daily until remedial
work at the seepage point is completed. Monitoring will be done during regular
impoundment inspections after that. Any unusual change in flow quantity or
quality that would indicate possible impoundment leakage will be reported
immediately to MSHA and the appropriate mine management. All necessary
remedial measures will be implemented. (Emphasis added)
The critical phrase is "after that." After what? Obviously, after the completion of
remedial work at the seepage point. That completion of work is the end of the short term
measures. After the short term measures came the long term measures. Hence, monitoring of the
flows at the South Mains entry on a weekly basis is a part of the long term measures. Since the
monitoring requirement has never been removed from the Impoundment Sealing Plan, the
requirement is still present. The requirement for weekly monitoring of the flow from the South

38

Mains Portal is, and has been since 1994, a part of the Big Branch Irnpoundment Sealing Plan.
Almost without interruption between Summer 1994 and Fall 2000, the flows from the South
Mains Portal was monitored, recorded and reported as a part of the weekly impoundment
inspection.
Construction of the seepage barrier was promptly completed and the underground seals
were built shortly thereafter. The record indicates that MSHA, for reasons best described as ease
of administration, made these two elements of the Irnpoundment Sealing Plan the responsibility
of two different units of its District Office for purposes of routine inspection. The underground
seals construction and operation was made the responsibility of underground inspectors while the
seepage barrier and related structures were made the responsibility of the impoundment
inspector. The parties disagree on the legal significance of this division of responsibility. It is
clear that the operator and its consultant understood this action as a reduction in the scope of the
lrnpoundment Sealing Plan. Annual certifications of compliance with the Irnpoundment Sealing
Plan by MCCC and GEO did not include evaluations of the underground seals.
The flow of water from the South Main Portal, both in terms of quantity and quality, was
measured on a weekly basis from 1965 to the day of the 2000 impoundment failure.
GEO/Environmental, the engineering consultant to MCCC, had an inspector visit the
impoundment each week and complete a data form that included water flow amount and color.
On most occasions the inspector was Mr. Eddie Howard, whose training to perform this function
is an issue in this case. Mr. Howard testified he followed a standard routine in his inspections,
making observations are defined points and delivering the resulting form to MCCC officers. He
also returned a copy of his report to GEO where he summarized the contents for his supervisor.
The information in these reports was quickly available to MCCC and GEO engineers for analysis
as to any change in the condition of the impoundment.
The construction of the underground seals was the subject of testimony by several
witnesses. 2 The Secretary relied on the testimony of Mr. Betony (Tr. June Session pg. 408) while
MCCC relied on the testimony of Mr. Hatfield (Tr. June Session pg 1249) and Mr. Branham.
(Tr. August Session pg. 516). The witnesses agreed on all significant points except the intended
spacing of anchor bolts into the floor and top. They agreed the seals were constructed of cement
block covered with gunite and laced with steel reinforcing bars. The seal wall was notched into
the rock of the ribs. The wall was anchored to the floor and top with steel bolts driven a foot into
the rock. The spacing of anchors was given as four- foot on centers in the floor and five- foot on
centers in the top. The issue dividing the parties was where such an instruction required the
anchors be placed. Mr. Betony testified that in his experience an instruction to place anchors at
four- foot on centers required the first anchor to be two- feet from the rib. Mr. Branham testified
that in his experience the instruction required the first anchor to be placed four feet from the rib.

2

There is no evidence the underground seals survived the October 11, 2000,
impoundment failure or even made any difference in how the released waters flowed from the
mine.

39

The purpose of an "on center" specification is to define the maximum unsupported length
of load bearing member. This maximum unsupported length is calculated from the maximum
expected load the member is intended to support. The specification of four- foot on center
defines a maximum unsupported length of two feet. Under the MCCC approach to this
specification, the sealing wall has a four foot span from rib to floor anchor. That would be
consistent with the design specifications for the sealing wall only if the inset of the sealing wall
into the rib creates another anchor point at the edge of the rib. I find nothing in the testimony or
the written record that supports a conclusion that an anchor point is created by an inset of the
sealing wall. Since the holding strength of the rib is difficult to calculate, and the point of most
engineering calculations is to rely upon ascertainable values to determine structural sufficiency, I
conclude the edge of the rib is not an appropriate anchor point. Therefore, the underground
sealing wall was not constructed in accordance with the approved specifications.
Three other subjects need to be discussed in the context of events which occurred in the
period between the approval of the Impoundment Sealing Plan and the second impoundment
failure: (1 ) changes in water flows from the South Mains Portal; (2) rainfall data for the period;
and (3) the training program for the impoundment inspector, Eddie Howard.
The Impoundment Sealing Plan requires the weekly monitoring of water flows from the
South Mains Portal but does not specify how the monitoring should be conducted. The decision
on the method of monitoring was apparently made by GEO/Environmental, the original author of
the Plan. GEO supplied the person that conducted the monitoring and designed a form upon
which the result was recorded. At least until the second impoundment fai lure, MSHA acquiesced
in the monitoring and data recording methods.
The amount of water outflow from the South Mains was determined by examining a
small erosion control pond constructed at the foot of the South Mains Portal. The pond collects
water from the mine entrance as well as the small hollow in which the South Mains Portal is
situated. The pond has a weir to allow water to exit after sediment has settled. The GEO
inspector made a weekly visit to that weir and recorded the depth of water in the outflow stream
using a ruler. He recorded the flow in inches even though all other water flows from the
impoundment were measured and recorded in gallons per minute. During the course of the
hearing I rejected an attempt by the Secretary to recalculate gallons per minute from the weir
depth readings. I concluded the recalculation was irrelevant to the issue of compliance with a
regulation that contemplates reporting of unusual water flows based on the available information.
The South Mains Portal water flow data was not available in gallons per minute at the critical
times. Mr. Howard also carefully measured the elevation of the surface of the impoundment.
T he Secretary did present a graphic representation of the available information on water
flows from the South Mains Portal during 1995 to 2000. This graph included the usual spikes
and dips but showed-particularly given the limited scale of the data based on the units of
measurement used-a portentous increase in flow roughly a year before the second impoundment
failure. It is signifi cant that there was no change in the water quality, i.e., no coal refuse fines

40

were being transported by the increased water flow. All the witnesses testified that a significant
increase in the number of transported fines would have indicated a major failure was likely.
The parties disagreed at great length as to the significance of the changes in South Mains
Portal water flows, particularly in light of changes in rainfall patterns. The choice of rain gauge,
the probable lag time between fall and flow, and similar issues consumed a great deal of energy.
It is my conclusion that while a prudent mining engineer reviewing the South Mains Portal water
flow data should have considered the influ.e nce of rain data from the general vicinity, such a
prudent engineer would not have given controlling importance to rainfall data regardless of
source in deciding whether an impoundment failure was a sufficient risk to alter the method of
operation of the impoundment to investigate that risk.
The source of much of the data in controversy in this case originated with Eddie Howard,
the impoundment inspector employed by GEO/Environmental. Mr. Howard testified as to his
activities. (Tr. August Session pg. 214 et seq.) Mr. Howard is not an engineer, he is a field
technician. His function is to observe and collect data that he reports to others. He began
visiting the Big Branch impoundment in 1996 to do inspections and continued on a weekly basis
after that until 2001. Mr. Howard testified he was certified by MSHA as an impoundment
inspector in 1991. (Tr. August Session pg 233). He received refresher training on impoundment
inspection in subsequent years but the documentation as to when, by whom and for how long he
received refresher training was very confused. Attempts to clarify the recorq by testimony did
not make the precise amounts and sequence of refresher training very clear. It is clear, on the
other hand, that he took some classes and received some on-the-job training in impoundment
inspection from engineers working for his employer.
Mr. John Grabeel testified as an impoundment inspection trainer employed by
GEO/Environmental. (Tr. August Session, pg. 644 et seq.) He stated he had provided training
for Mr. Howard. He indicated the refresher training took the form of an eight hour class day
supplemented with on-the-job field trips. Of the eight hours in class, four hours were devoted to
impoundment inspection and four hours were devoted to surface mining and safety issues,
including the proper operation of a nuclear density gauge. (Tr. August Session, pg 651).
Impoundment Failure in October 2000
The second failure of the Big Branch Coal Refuse Impoundment occurred in the dark of
night with few people close enough to observe the events. A maintenance worker noticed the
increased flow of water and went to alert others. As others came to the scene a swirl of escaping
water was seen in the impoundment. The escaping waters were black with refuse fines.
Equipment was rushed to the assumed site of the break through and soil was pushed into the
hole. Within a few hours the hole was plugged, but in that time more than three hundred million
gallons of silt laden water had rushed out of the impoundment and down adjacent streams toward
the Ohio River. No lives were lost. Recovery from the failure was still in progress when I
visited the impoundment more than two years later.

41

A team of investigators was assembled by MSHA and sent to the scene. The report of
their investigation is included in the record. (G.E. 1).
Theories of Impoundment Failure
It is important to note at the outset that the precise cause of the October 11, 2000,
impoundment failure is not an issue in any of the citations before me. I am not required to
determine the cause of the failure and I do not propose to make a determination of that question
without necessity. The relevance of the testimony on various theories of the cause of the failure
is to evaluate the risk posed by the impoundment in terms of potential failure. My responsibility
is to evaluate Respondents' prudent mining decision making in the face of these risks.

Piping
The MSHA investigators concluded that the cause of the impoundment failure was a
process known as piping. Engineers have known for some time that piping occurs under certain
circumstances. Piping is a process of erosion that occurs in water permeable materials.
Permeability allows water to transit the permeable zone carrying materials from the zone. The
route followed is the connected area of maximum permeability. The route over time becomes the
pipe.
Shear Failure
Mr. Barry Thacker, the President of Respondent GEO/Environmental, presented a theory
under which the impoundment failure was the result of water pressure in the impoundment
punching a hole in the natural cover over the abandoned mine works. The hole would cause a
sudden cascade of free water into the mine. The place of rupture was the result of natural faults
observed in the soil called "hill seams." The theory as presented by Mr. Thacker depends on
acceptance of several premises: first, that piping would have occurred, if at all, at the relatively
more permeable zone created at the site of the 1994 impoundment failure; second, that the
increase in height of the impounded silty water would have caused an increase in flow from the
South Mains Portal through the operation of a natural principle known as Darcy's Law; third,
that the changes in water flows from the South Mains Portal are consistent with short term rain
fall that in 1999 included repeated episodes of locally heavy storms. The 1994 impoundment
failure is generally acknowledged to have been a small shear failure in an area where the cover
over the abandoned mine was particularly thin or fragile. Shear failure is a well recognized risk
in impoundment operations as pressures from depth of water increase. The risk of failure, and
hence, the need for careful monitoring of conditions, obviously increases as the depth of water
increases.
Mine Seal Failure Under Pressure
Mr. Christopher Lewis (Tr. August Session, pg. 788 et seq.) testified as to another

42

possible sequence of events to explain the impoundment failure. His theory posits that the
permeability of the seepage barrier is sufficient that water pressure in the impoundment is
transmitted through the natural soil into the wet silt that completely fills the abandoned mine to
the first set of mine seals. These seals are in place for ventilation control, not water control as are
the seals that are the subject of one of the citations in this case. That means that a relatively
small amount of water pressure will cause failure of the seals. When the seals fail, under this
theory, the wet silt in the abandoned mine will flow out and leave the natural soil roof of the
mine works unsupported. The water pressure in the impoundment will then cause the roof to
collapse and water will then flow into the abandoned mine. (Tr. August Session, pg. 815). The
theory articulated by Mr. Lewis is well supported in the engineering profession and should be
assumed to be understood as a risk by an prudent mining engineer.
Dr. Donald Joseph Hagerty (Tr. August Session, pg 930 et seq.) testified as to an expert
analysis of possible piping sequences and found that the most probable result was a sudden small
breakthrough that would result in rapid dewatering of the impoundment without catastrophic
failure of the impoundment integrity. This analysis was offered to rebut the testimony offered by
the Secretary as to piping being the cause of the impoundment failure. But the testimony by
Dr. Hagerty complements that of Mr. Lewis in the sense that it shows how impoundment water
pressure could have been transmitted to the ventilation seals in a relatively sudden manner with
the consequences described by Mr. Lewis.
CONCLUSIONS OF LAW
With this much disagreement among the parties as to the facts, it is indeed fortunate that
as to the applicable law there is a great deal of agreement. It is appropriately agreed that the
Commission does have jurisdiction over these contested citations. It is agreed that the Secretary
has the initial burden of proof as to all elements of the claims for recovery. It is also agreed that
the violations as alleged require the Secretary to show the violations were "significant and
substantial" as well as showing that the violations were "unwarrantable." These terms have been
interpreted by the Commission numerous times over the years. That the parties cite different
cases with different facts does not establish a disagreement over the applicable legal standard.
The Commission has been very clear that the conclusion is fundamentally a question of fact in
particular cases.
I have looked to the following cases to guide my application of the facts in this particular
case. I read with some care the decision in Secretary of Labor v. Virginia Crews Coal Company,
14 FMSHRC 1691 (October 1992). I also looked carefully at Secretary of labor v. Cougar Coal
Company, 25 FMSHRC 513 (September 2003). Neither of these cases involves a coal refuse
impoundment. Both of these cases note that the terms in question were used by the Congress in
enacting the Mine Safety Act. The cases interpreting these terms were attempts to ascertain the
presumed intent of Congress in regard to particular facts.
The cases seem to conclude that little improvement is possible in the four part test for

43

"significant and substantial" explained by the Commission in Secretary of La.bar v. Mathies Coal
Co., 6 FMSHRC 1, 3-4 (January 1984) as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial [citation omitted] the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard-that is, a measure of danger to safety-contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
The term "unwarrantable fai lure" has long been characterized by the Commission as
involving conduct that can be described as "reckless disregard," "intentional misconduct,"
"indifference, "or a "serious lack of reasonable care." It is also clear that these descriptors take
on different significance when viewed in the light of the risk on injury inherent in the activity.
There can be no doubt, for example, that greater care is expected of a person handling explosives
that is expected of a person handling signal flares. In deciding this case, I was particularly
mindful of the risks associated with gathering a large quantity of industrial fluid at a reasonably
great height with limited controls.
It is also agreed that the following regulations are mandatory safety standards applicable
to the MCCC operation on Big Creek.

30 C.F.R. 77.216Cd)
(a) Plans for the design, construction, and maintenance of structures which impound
water, sediment, or slurry shall be required if such an existing or proposed impounding
structure can:
(1) Impound water, sediment, or slurry to an

elevation of five feet or more above the upstream
toe of the structure and can have a storage volume
of 20 acre-feet or more; or
(2) Impound water, sediment, or slurry to an elevation of 20 feet
or more above the upstream toe of the structure; or
(3) As determined by the District Manager, present a hazard
to coal miners.

********** * * * **************
(d) The design, construction, and maintenance of all water, sediment, or slurry
44

impoundments and impounding structures which meet the requirements of
paragraph (a) of this section shall be implemented in accordance with the plan
approved by the District Manager.
30 C.F.R. 77.216-4(a)(7)
(a) Except as provided in paragraph (b) of this section, every twelfth month following the
date of the initial plan approval, the person owning, operating, or controlling a water,
sediment, or slurry impoundment and impounding structure that has not been abandoned
in accordance with an approved plan shall submit to the District Manager a report
containing the following information:

*******************************
(7) A certification by a registered professional engineer that all construction,
operation , and maintenance was in accordance with the approved plan.

30 C.F.R. 77.216-4(a)(2)
(a) Except as provided in paragraph (b) of this section, every twelfth ·month following the
date of the initial plan approval, the person owning, operating, or controlling a water,
sediment, or slurry impoundment and impounding structure that has not been abandoned
in accordance with an approved plan shall submit to the District Manager a report
containing the following information:

*****************************
(2) Location and type of installed instruments and the maximum and minimum
recorded readings of each instrument for the reporting period.

30 C.F.R. 77.216-3(a)(4)
(a) All water, sediment, or slurry impoundments that meet the requirements of
§77.216(a) shall be examined as follows:

*****************************
(2) All instruments shall be monitored at intervals not exceeding 7 days,
or as otherwise approved by the District Manager

******************************
45

(4) All inspections required by this paragraph (a) shall be performed by
a qualified person designated by the person owning, operating, or
controlling the impounding structure
Specific Citations
Citation No 7144401
This citation alleges that MCCC violated 30 C.F.R.§ 77.216(d) by failing to report
changes in water flow quantity from the South Mains Portal during September 1999, as required
by the Impoundment Sealing Plan approved by the District Manager. The Plan as approved
became the regulation applicable to this facility. Everything required by the Plan became a
mandatory safety standard. I concluded above that the requirement to report unusual flows to
MSHA was a requirement of the Plan. No unusual flows were reported to MSHA. The issue is
whether the Secretary has established that in September 1999, the South Mains Portal had
unusual flows that should have been reported. Assuming the unusual flows were present, was
the failure to report those flows unwarrantable negligence that was significant and substantial?
I begin with what I hope is the undisputed premise that the degree of care demanded of a
reasonably prudent mining engineer in management of a mining facility varies with the degree of
risk to life and property at the time action is required. Where the lives of hundreds of miners are
at risk, a manager must examine the available options much more carefully than the manager
would if only the condition of mining equipment might be affected. This premise is particularly
important in evaluating over a period of years the actions taken at the Big Branch Refuse
Impoundment. In 1991, when the pool level was below the level of the abandoned mine, very
little care in management of the impoundment was required. The only risk at that point was a
failure of the coarse refuse embankment, through structural failure or a rain event beyond the
designed capacity of the embankment and spillway feature. The record does not indicate that
these aspects of the impoundment ever posed a problem.
Between 1991 and 1994, the pool level rose over the abandoned mine level and the risk
of failure of the walls of the pool increased. In May 1994, the pool experienced a leak from a
structural failure that highlighted the increasing risk. The operator, its consultant, and MSHA
responded to that increased risk by development of an lmpoundment Sealing Plan. The purpose
of the Plan was to contain the risk of failure of the pool structure as the pool level increased. The
requirement for monitoring the flow of water from the South Mains Portal was included in the
Plan for the purpose of alerting the responsible parties to the level of risk posed by the
impoundment as time passed.
Following approval of the Impoundment Sealing Plan, mining operations caused the
impoundment pool level to rise. The experts seem in agreement that even without flaws in the
impoundment seal, the rise in the pool level could be expected to result in increased water flow

46

from the South Mains Portal. As long as the increases were within reasonable limits, the
increases were not evidence of problems with the impoundment but rather were evidence that the
impoundment was working as predicted. Some spikes and valleys should also be expected
because of variations in rain fall, particularly since the measuring point for the South Mains
Portal flow was after collection of runoff water in the settling pond. Weekly and even monthly
changes in the flow amount, in the absence of water quality changes or catastrophic increases in
quantity, were probably meaningless to the people who reviewed the information. But as the
pool level rose the risk of failure rose.
In the context of this increasing risk of impoundment fail ure, I would expect a reasonably
prudent mining engineer to pay increasing attention to warning which might have been derived
from the South Mains Portal flow data properly appreciated. While weekly or monthly changes
would be meaningless, longer term changes related to other obtainable data could have provided
valuable signs. The record is clear that no effort was made by either MCCC or GEO to conduct
any of these kinds of evaluation of the data. Of particular significance is the large increase in
flow that occurred approximately a year prior to the October 2000, impoundment failure. While I
am persuaded by the testimony that the Fall 1999, flow data (even when related to various
sources of rain fall information) does not prove that the failure began then or even at any
particular time. What could have been derived from a "prudent" look at the data would have
been a warning that further study of the condition of the impoundment was warranted. At the
very least, the report of the fl ow changes would have provided MSHA with the opportunity to
clarify its intention with respect to the distribution of fine refuse on the upstream edges of the
impoundment pool.
The data gathering and analysis requirements of the Impoundment Sealing Plan that form
the foundation for this citation were not carefully drafted to articulate these concepts. The
authors of the Plan were relying on the professional training and good sense of the people that
would be managing the l mpoundment as the years went on. I am persuaded that while the
technical area of predicting impoundment failure is still in the development stage, much more
could and should have been done here. I am also persuaded that the fai lure to take advantage of
available opportunities to evaluate the South Mains Portal flow data contributed in some measure
to the magnitude and timing of the impoundment failure. On the other hand, I am not persuaded
that the failure to take advantage of these opportunities was an unwarrantable failure in the sense
of wanton or reckless disregard for the risks to life and property. I would assess the negligence
as moderate. The Civil Penalty proposed by the Secretary, $55,000.00, seems to me to be
excessive under the circumstances.
Citation No. 7144403
This citatiqn alleges that the underground mine seals included in the original
Impoundment Sealing Plan were not constructed in accordance with the approved plans in
violation of 30 C.F.R. §77 .216(d). My interpretation of the approved plan for the seals as
discussed above would require the first anchor bolt to be set in the floor two feet from the rib and

47

a similar spacing for the bolt in the roof. The testimony was clear that the actual construction did
not meet those requirements. Therefore, the seals were not constructed in accordance with the
approved plan. While the difference in placement of the anchor bolt might have significant
consequences in some circumstances (generally in situations in which the load on the seals would
be in a range such that the seals would fail with one spacing but hold with a closer spacing) there
is no evidence in this record that indicates the bolt spacing on the seals contributed to the
October 2000, impoundment failure in any way. The change in bolt spacing cannot be said to be
anything more than very low negligence. The Civil Penalty appropriate to such a violation would
be minimal at best.
Citation Nos. 7144404 and 7144408
These citations allege that the Annual Report and Certification on the Big Branch
Impoundment for 1995, did not include reference to the underground seals constructed as part of
the lmpoundment Sealing Plan in violation of 30 C.F.R. §77.216-4(a)(7). The Annual Report did
not include reference to the underground seals construction. MCCC contends the underground
seals were not part of the Impoundment Sealing Plan by the time of the construction. GEO
contends that not only were the underground seals not a part of the lmpoundment Sealing Plan
but also that GEO had no responsibility for Certification of the underground seals since it does
not perform underground engineering.
That GEO does not work underground is certainly not a reason for excluding
underground features of an impoundment plan from an Annual Certification if the features are a
part of the plan. · The requirement on the impoundment operator is to have a qualified person
make the necessary certification, either with its own staff or by hiring someone. A certifying
engineer would need to at least note the exclusion of a feature from a submitted certification so
that a supplement to the certification by someone else would be appropriate.
There is no evidence in this record that the failure to include the underground seals in the
Annual Cert.ification contributed in any way to the October 2000, impoundment failure. The
degree of negligence involve was very low at best and the Civil Penalty for the violation should
be minimal.
Citation No. 7144410
This citation alleges that the Annual Reports prepared by GEO in 1996 to 1999, failed to
include the maximum and minimum readings for the South Mains Portal outflow pipe considered
as in instrument in violation of 30 C.F.R. §77.216-4(a)(2). The critical issue here is whether the
South Mains Portal outflow pipe combined with a ruler constitutes an instrument for purposes of
this regulation. The regulations, and their apparent application to the industry by MSHA, are
somewhat confusing on this point. The regulation does not have a clear definition of an
instrument. The testimony was clear that not all sources of information about an impoundment
are considered instruments. The regulation provides that all instruments must be identified on a
48

plan view of the impoundment submitted with the Annual Certification. The South Mains Portal
outflow pipe was not on the plan view submitted with the Big Branch Impoundment Annual
Certifications, much less be identified as an instrument on the plan view. The readings of the
flows from the South Mains Portal were taken every seven days as a requirement of the
Impoundment Sealing Plan and the regulation requires that all instruments shall be monitored at
intervals of not exceeding seven days. It does not logically follow, however, that since all
instruments must be monitored every seven days, therefore all things that are monitored every
seven days are instruments.
I am persuaded by the testimony, particular that of Dr. Thacker, that the word
"instrument" has a unique technical meaning within the professional subgroup of impoundment
engineers as a data source identified and designated in a particular document. That a data source
is or is not identified and designated as an "instrument" is independent of the question of the
importance of the data. As I indicated above, the flow readings from the South Mains Portal
constituted important data. But it was not data from an "instrument" for the purposes of
30 C.F.R. §77.216-4(a)(2). This citation must be dismissed.
Citation No. 7144411
This citation alleges that the weekly examinations of the Big Branch Impoundment were
performed by an unqualified inspector that had not received required annual .refresher training in
violation of 30 C.F.R. § 77 .216-3(a)(4). There is no question in this case that the inspector,
Eddie Howard, was a very experienced inspector who received both classroom and on-the-job
refresher training in the period prior to the October 11 , 2000, impoundment failure. It is further
very clear that no evidence has been offered to connect Mr. Howard's qualifications as an
inspector to the occurrence of the impoundment failure. All parties have used his observations
and measurements in their presentations without any question as to reliability or accuracy. The
issue here is limited to whether Mr. Howard spent the required number of hours in training on the
required subjects.
The burden is on the Secretary to establish the record elements of this alleged violation.
While the record does cast doubt on the sufficiency of the documentation of Mr. Howard's
refresher training, I am unable to conclude that the Secretary has established that Mr. Howard did
not receive a total of eight hours of appropriate impoundment inspection refresher training. This
citation must be dismissed.
Civil Penalty Amounts

In light of the forgoing discussion, it is my judgement that an appropriate Civil Penalty
for the violation in Citation No 7144401, is one-tenth of that proposed by the Secretary or
$5,500.00. The remainder of the citations not dismissed require a Civil Penalty of $100.00,
against each Respondent.

49

ORDER
Respondent Martin County Coal Company is directed to pay a Civil Penalty of $5,600.00
within 40 days of the date of this Order. Respondent GEO/Environmental Associates is directed
to pay a Civil Penalty of $100.00 within 40 days of the date of this Order. Citation Nos. 7144410
and 7144411 are dismissed.

Distribution: (Certified Mail)
Melanie J. Kilpatrick, Esq., Marco Rajkovich, Esq., Wyatt, Tarrant & Combs, 1700 Lexington
Financial Center, Lexington, KY 40507
James B. Crawford, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard,
22nd Floor West, Arlington, VA 22209-2247
Mark E. Heath, Esq., Spilman, Thomas & Battle, LLP, 300 Kanawha Blvd., P.O. Box 273,
Charleston, WV 25321-0273

50

Appendix A
Summary of Dismissal of Citation
The Secretary alleged MCCC violated 30 C.F.R. §77.216 by failing to comply with a
provision of the Impoundment Sealing Plan that requires the operator to "periodically redirect"
the coal refuse discharge stream. The Secretary maintained the failure to perform this task
resulted in an inadequate seepage barrier which resulted, in turn, in the impoundment failure on
October 2000.
This argument requires, for it to be effective, that the phrase "periodically redirecting"
had a meaning well understood by prudent mining engineers in 1994 that would require actions
by the mine operator as now thought necessary by the Secretary. This is not a question of
"notice" of the meaning asserted by the Secretary. Lack of notice would be an affirmative
defense by the operator if the Secretary successfully completed a prima facie case. My
conclusion was that the Secretary never completed aprimafacie case because the Secretary never
established that prudent mining engineers in 1994 would have understood "periodically
redirecting" the fine coal slurry discharge to mean the kind of impoundment operation which the
Secretary now contends was necessary to prevent impoundment failure in the manner it occurred
here.
It is important that the Secretary's theory of how the impoundment failure of October 11 ,
2000, occurred implies a deficiency in the impoundment seepage barrier. But there was no
evidence that anyone was contemplating this particular failure mechanism at the time the
impoundment sealing plan was approved. Even the Secretary's impoundment design expert,
Richard Almes, testified that the phrase "periodically redirect the slurry discharge" had no
technical meaning in 1994 or in 2000. The slurry discharge methods that the Secretary alleges
were required under the 1994 plan were far from standard practice in impoundment management.
His testimony is consistent with that of the MSHA impoundment inspector. He testified he was
familiar with the 1994 plan and had visited the impoundment 3 or 4 times a year between 1994
and 2000. It never occurred to him that the slurry discharge methods used by Martin County
Coal Company were insufficient. This testimony represents interpretation of the 1994 plan
through conduct rather than an attempt to estop the Secretary as a result of long delay in asserting
an argument. The Secretary is not subject to estoppel in her pursuit of public safety. The
Secretary failed to adequately establish a violation of those requirements and I have no choice but
to dismiss the claim and vacate the Citation.

51

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

January 21, 2004
MARK POLLOCK,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 2003-182-DM
RMMD02-15

V.

KENNECOTT UTAH COPPER CORP.,
Respondent

Mine l.D. 42-00149
Bingham Canyon Mine

DECISION
Appearances:

Arthur F. Sandack, Esq., Salt Lake City, Utah, for Complainant;
James M. Elegante, Esq., Kennecott Utah Copper Corporation, Magna,
Utah, for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by Mark Pollock against
Kennecott Utah Copper Corporation ("Utah Copper''), under section 105(c)(3) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). Mr. Pollock
alleges that Utah Copper failed and refused to hire him for a position as a truck driver at the
Bingham Canyon Mine because of protected activities he initiated while working for Kennecott
Barney's Canyon Mining Company ("Barney's Canyon"). An evidentiary hearing was held in
Salt Lake City, Utah, and the parties filed post-hearing briefs.

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINDINGS OF FACT
Utah Copper operates the Bingham Canyon Mine, a large open-pit copper mine, in Salt
Lake County, Utah. Utah Copper is owned by Rio Tinto, a large, multi-national minerals
company. Rio Tinto also owns Barney's Canyon, a surface gold mine located near the Bingham
Canyon Mine. 1 Barney's Canyon halted production at the end of December 2001. An "employee
rights agreement" was entered into between Utah Copper and the local unions that represented
miners at both mines. (Ex. R-1). Under this agreement, employees of Barney's Canyon who did
not otherwise have recall rights at Utah Copper were given "first consideration" by Utah Copper
for vacancies at the Bingham Canyon Mine. .Certain procedures had to be followed by a
Barney's Canyon employee if he wanted to take advantage of this agreement. The agreement did

1

Rio Tinto apparently owns these companies through Kennecott Holdings Company.
52

not guarantee a Barney's Canyon employee a job at Utah Copper, but such an employee would be
considered for a vacancy before anyone from the outside and before anyone on layoff status from
Utah Copper.
Mark Pollock started working at Barney's Canyon in April 1989. He was laid off at the
end of December 2001 because of the shutdown of the mine. He was recalled to perform
reclamation work at Barney's Canyon on March 19, 2002. Pollock was laid off from this
position on December 12, 2002. On March 26, 2002, Utah Copper announced open positions for
haul truck drivers. Pollock followed the proper procedures under the employee rights agreement
to apply for one of these positions. (Ex. C-2). Pollock was interviewed for a haul truck driver
position on May 14, 2002. The interview was conducted by Ben Stacy, who was the truck
superintendent, and Vedel Welch, a senior employee relations representative at Utah Copper.
After the interview, Stacy conferred with Welch and decided that Utah Copper would not offer
Pollock a position as a haul truck driver. Pollock was notified of Utah Copper's decision by
letter dated June 21, 2002. (Ex. C-6). Pollock filed a complaint of discrimination with the
Department of Labor's Mine Safety and Health Administration ("MSHA") on August 7, 2002.
By letter dated January 27, 2003, MSHA notified Pollock that it determined that the facts
disclosed during its investigation of his complaint did not constitute a violation of section 105(c)
of the Mine Act. On February 24, 2003, Pollock filed the complaint in this proceeding.
In his complaint, Pollock alleges that Utah Copper discriminated ag~nst him because he
was an MSHA miners' representative at Barney's Canyon, he filed hazard complaints with
MSHA at Barney's Canyon, and he fi led discrimination complaints against Barney's Canyon.
Pollock notes that Leonard Wolff, the mine superintendent at Barney's Canyon, had a
management position at Utah Copper in the spring of 2002. Pollock believes that Wolff told
Utah Copper management not to hire him because of his protected activities at Barney's Canyon.
Pollock notes that Wolff testified in a discrimination hearing before me in a case that the
Secretary brought against Barney's Canyon on Pollock's behalf. Sec'y of Labor on behalf of
Pollock v. Kennecott Barney's Canyon Mining Company, 22 FMSHRC 419 (March 2000).
Pollock states that 16 former employees of Barney's Canyon who were as qualified as he or less
qualified than he were hired as truck drivers at Utah Copper.
Utah Copper denies the allegations in Pollock's complaint and contends that it decided
not to hire Pollock for legitimate business reasons having nothing to do with Pollock's protected
activities. Indeed, it maintains that Pollock's safety record was viewed by Mr. Stacy as one of
Pollock's few strong points. As described in more detail below, Utah Copper states that Stacy
decided not to hire Pollock because he had a substantial disciplinary record and he was weak in
working with team members and in accepting supervision.

53

II. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 95th Cong., !51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 623 (1978) ("Legis. Hist.")
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient to support a conclusion that he
engaged in protected activity and suffered adverse action motivated in any part by that activity.
Secretary of Labor on behalfof Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800
(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v.
Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the
primafacie case by showing either that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine
operator cannot rebut the primafacie case in this manner, it nevertheless may defend by proving
that it was also motivated by the miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see
also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
A. Protected Activity
I find that Pollock engaged in protected activity when he worked at Barney's Canyon. It
is not disputed that Pollock was an MSHA walkaround representative from 1994 to shutdown,
that he was on the local union safety committee, that he filed at least 30 safety complaints with
MSHA following which citations were issued in many instances, that he complained about safety
conditions to mine management, and that he filed several discrimination complaints with the
Secretary under section 105(c)(2). At least some of his protected activities were known to Utah
Copper management. Whether and to what extent Stacy knew of these protected activities when
he decided not to hire Pollock as a haul truck driver is discussed later in this decision.
B. Adverse Action
As an appljcant for employment, Pollock was protected from any adverse action taken by
Utah Copper as a result of his protected activities. Utah Copper's decision not to hire Pollock
constitutes an adverse action for purposes of section 105(c) of the Mine Act. In determining
whether a mine operator's adverse action is motivated by the miner's protected activity, the judge
54

must bear in mind that "direct evidence of motivation is rarely encountered; more typically, the
only available evidence is indirect." Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508, 2510 (November 1981), rev'd on other grounds, 109 F.2d 86 (D.C. Cir 1983).
"Intent is subjective and in many cases the discrimination can be proven only by the use of
circumstantial evidence." Id. (citation omitted). In Chacon, the Commission listed some of the
more common circumstantial indicia of discriminatory intent: (1) knowledge of the protected
activity; (2) hostility or animus toward the protected activity; (3) coincidence in time between the
protected activity and the adverse action; and (4) disparate treatment of the complainant. See
also Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 530 (April 1991): A key issue in this case is
whether Utah Copper's decision not to hire Pollock was motivated in any part by his protected
activities at Barney's Canyon.

1. Pollock's Position
Pollock's protected activities were quite extensive. In trying to establish a primafacie
case, Pollock makes a number of arguments. First, he contends that although there is no direct
evidence of discrimination, it is clear that Utah Copper's decision not to hire Pollock was
motivated in large part by his protected activities. Although Mr. Stacy made the decision not to
hire Pollock, he relied on the poor evaluation provided by Wolff. When Stacy asked Wolff about
Pollock before the interview, Wolff replied that Stacy should look at Pollock's record. Pollock
believes that this reply was code for "do not hire this employee." (P. Br. 24). Pollock also points
to the "Internal Reference Check" provided by Wolff. (Ex. R-5). Wolff, who was aware of
Pollock's protected activities, rated him quite poorly and checked the line entitled "Do not hire."
Wolff rated Pollock "poor" or "marginal" in all categories except safety and attendance. Under
"Safety," Wolff rated Pollock "average" and wrote:
Active with safety. Was on the safety committee, attended
monthly joint safety council meetings, monthly mine safety tours,
and participated in mine related accident investigations.

Id. Under "Discipline" Wolff wrote:
Pollock filed an MSHA discrimination claim against Barney's to
get his record expunged. He lost and his record stands. Discipline
includes suspension.

Id. Pollock testified that Wolff was hostile toward his protected activities at Barney's Canyon
and that their relationship was so tainted by this hostility that Pollock began raising safety issues
with Wolff's supervisor, Ray Gottling, after 1999.
Pollock also states that the human resources managers at Barney's Canyon and Utah
Copper often conferred and their relationship was intimate. (P. Br. 22). Indeed, some human
resources employees moved from one mine to another. He believes that these human resources
55

departments took a "special interest" in Pollock because of his protected activities. Id. Greg
Pollock, Mark Pollock's brother, was the president of the local Steelworkers Union at Utah
Copper. Greg Pollock was also very active in safety matters. Pollock points to the fact that
Welch, who provided assistance to Stacy in making hiring decisions, was biased against Pollock
because Welch believed that Greg Pollock "created problems" at Utah Copper. (Tr. 215).
Welch testified that "those types of things run among .. . families." Id.
Pollock also relies on the fact that Utah Copper refused to hire the other two MSHA
miners' representatives from Barney's Canyon, Tony Lopez and Brad Vaughn. Instead, Utah
Copper hired individuals from Barney's Canyon who did not make waves. Pollock points to the
fact that several of the employees hired had acted as re-rate supervisors at Barney's Canyon .2
Many of these employees had serious attendance problems or other disciplinary problems. In
addition, at least one former Barney's Canyon employee who was hired by Utah Copper had a
drinking problem that made him a hazard to other employees.
Pollock believes that he was well qualified for one of the haul truck driver positions and
that Utah Copper's failure to offer him a position was directly related to his aggressive stance on
safety at Barney's Canyon. Wolff made it clear to Stacy, both in his oral statement to "look at his
record" and in the written reference he provided, that Pollock should not be hired because he
confronts management on safety issues.3

2. Utah Copper's Position
Utah Copper contends that Pollock offered no evidence showing that, in failing to extend
an offer of employment to him, Utah Copper was motivated by his protected activities at
Barney's Canyon . Pollock relies to a great extent on the evaluation provided by Wolff. Pollock
believes that this evaluation was motivated by his protected activities and that, because of that
evaluation, Utah Copper failed to offer him employment. Utah Copper argues that Pollock did
not offer any evidence to support this theory. It contends Wolff did not take adverse actions
against Pollock at Barney's Canyon and that Wolff's evaluation was based on Pollock's
unprotected conduct. Finally, it was Stacy, not Wolff, who determined that Pollock should not
be offered employment at Utah Copper.
Stacy testified that, although he probably looked at Wolff's evaluation of Pollock, he
coul d not recall doing so. Rather, Stacy testified that he made the employment decision
"independently of Mr. Wolff's comments, either verbal or written." (Tr. 315). Stacy testified

2

A "re-rate" supervisor is an hourly employee who fi lls in for a front line supervisor when
he or she is absent for that shift.
3

Utah Copper filed a motion to strike portions of Pollock's brief. I find that the arguments
presented are not well taken and the motion is DENIED. I have treated Utah Copper's motion and
Pollock's response as reply briefs.
56

that the key factor in his decision not to extend an offer of employment was Pollock's conduct in
the interview. The second factor was the fact that Pollock had "a pattern of insubordination over
the years." (Tr. 307; Ex. R-4). Stacy testi fied that he was especially concerned because, during
the interview, Pollock did not articulate how he planned to take action to correct his tendency to
engage in insubordinate behavior. (Tr. 308).
Utah Copper maintains that even if Wolff was motivated by PolJock' s protected activities
when he wrote his evaluation, the evaluation is not adverse action because it is merely an
expression of his opinion. Utah Copper did not rely on Wolff's evaluation when Stacy decided
not to offer him employment so there is a "causal disjuncture" in Pollock's argument. (UC Br.
6). Utah Copper established that Stacy made his decision based on the interview and PolJock's
discipline record, not because of Wolff's recommendation.
Utah Copper contends that the evidence establishes that Stacy decide~ not to hire Pollock
because of his belief that Pollock demonstrated an " undesirable attitude toward teamwork." (UC
Br. 7). Stacy testified that he did not review PolJock's personnel record prior to the interview,
that he had no knowledge of Pollock' s protected activities prior to the interview, and that he did
not base his decision on these protected activities. (Tr. 305-06, 320). Instead, Stacy relied on the
summary of Pollock's disciplinary record and Pollock's performance during the interview .

3. Analysis
a. Pollock's Interview
I credit Stacy's testimony as to the process he used in making hiring decisions. He did
not review any documents prior to the interview. (Tr. 297). He was concerned about Pollock's
history of insubordination and the fact that he did not appear to be someone who worked well
with management. Stacy and Welch followed a set format when interviewing candidates. They
alternated asking questions and they both recorded the responses on the interview sheet. (Tr.
300; Exs. R-7, R-8). Each candidate was asked the same questions. Each interview lasted about
30 to 45 minutes. After each interview, Stacy conferred with Welch and Stacy made a decision
whether to offer the candidate a position at Utah Copper. He recorded his decision on an
employment interview summary form. With respect to Pollock, Stacy rated him "Good" with
respect to "Essential Functions" and "Safety." (Ex. R-6; Tr. 305, 3 10-12). Essential functions
refers to a candidate's experience in performing the essential functions of the job. With respect
to safety, Stacy wrote "Clean safety record, no injuries or property damage on file." Id. Stacy
marked PolJock "Average" with respect to "Initiative" and "Independent."
Stacy rated Pollock "Poor" with respect to the other two criteria, "Team Player" and
"Supervision." Under "Team Player" Stacy wrote:
Could only reference safety when probed with questions about
productivity. Could not give examples regarding Ops & Maint.

57

(Ex. R-6). Under "Supervision" Stacy wrote, "Would not give specific answers about his ability
to interact positively with supervisors." Finally, in the section titled "Interviewer's Thoughts,"
Stacy wrote:
Mark is familiar with heavy equipment and has a good record in
safety. Weak in area of cooperation and interactions with
supervisors.
(Ex. R-6). Under recommended action, Stacy checked "Do not Hire."
I credit Stacy's testimony that, except for what Pollock told him during the interview, he
was not aware of his protected activities at Barney's Canyon. (Tr. 305-06). I also credit his
concerns about Pollock's insubordination. (Tr. 307-08). The information before Stacy listed his
disciplinary record as follows:
Date of Infraction

Description of Infraction

Disciplinary Action

04120199
12/08/98
04/21/97
07/30/96

Insubordination, failure to perform
Insubordination
Smoking inside building, 2nd offense
Insubordination & disorderly conduct

8 days suspension
1 day suspension
Written Warning
3 days suspension

(Ex. R-4). Stacy did not seek further information about these disciplinary actions from Barney's
Canyon or the Utah Copper human resources department. (Tr. 330-31). Stacy stated that he was
concerned that Pollock chose not to comment on his past disciplinary actions. (Tr. 307).
Although Stacy admitted that he would rate a candidate poorly if he tried to explain away his past
conduct, Stacy expects potential employees with a history of disciplinary actions to "articulate
some type of pJan or things they've done different to where they would be able to not have them
happen again." (Tr. 308). Pollock merely responded that he had "no more to add" and that his
record "speaks for itself." Id. Stacy testified that he found Pollock's answers to be "one sided to
where he would offer a description in his comments of people who would come to him." Id.
Stacy was concerned that Pollock offered no examples demonstrating "any kind of team-solving
skills to where in a group they solve things." (Tr. 308-09). Pollock's examples were "always
someone coming to him ... a one-sided affair.... " (Tr. 309).
Stacy testified that he discussed Pollock in a chance meeting with Wolff prior to the
interview. (Tr. 312). Wolff simply told Stacy that he "should look at his records." Id. Wolff
appeared to not want to talk further, so Stacy did not continue the conversation. Stacy testified
that Wolff's written evaluation of Pollock was available to him at the time of the interview but
that he did not remember the document. (Tr. 315). There was a folder for each candidate
provided to Stacy just before the interview. Stacy testified that he probably "breezed through the
folder" for Pollock and that it would have contained Wolff's recommendation that Pollock not be
hired. (Tr. 314). Stacy stated that he does not believe that Wolff's oral or written statements
58

influenced his decision not to hire Pollock. (Tr. 315). Stacy stated that he made the decision
independently based on Pollock's history of discipline and his responses during the interview.
Id. Stacy made the final decision not to hire Pollock. He conferred with Welch to make sure that
their opinions were consistent, but Stacy made the final decision. Stacy was unaware that Welch
had concerns about Pollock because he was Greg Pollock's brother. Stacy testified that he had
many dealings with Greg Pollock at Utah Copper in "grievance and hearing procedures" and in
safety matters because he was a local union president, but Stacy was not concerned about hiring
Mark Pollock because of Greg Pollock's protected activities. (Tr. 333).

b. Pollock's Prima Facie Case
The Mine Act protects all miners who engage in protected activities including those who
do so in an aggressive manner or in a manner that mine management believes is not helpful or
positive. Pollock's relationship with Wolff was strained in part because of the manner in which
Pollock pursued safety issues. For example, Pollock would complain to MSHA about safety
conditions without first giving Barney's Canyon the opportunity to address the alleged condition.
It is clear that this behavior aggravated Wolff. 22 FMSHRC at 433. Stacy had Wolff's
evaluation before him during the interview. Although Stacy was not aware of the details of the
extent or nature of Pollock's protected activity, Pollock discussed his protected activities during
the interview. Pollock believes that he established that Wolff's hostility toward Pollock's
protected activities convinced Stacy that he should not hire Pollock.
Pollock also contends that he established a prima facie case by showing Utah Copper's
disparate treatment of employees who engaged in protected activities at Barney's Canyon. He
argues that former Barney's Canyon employees who were not active safety advocates were hired
even though they were no more qualified or less qualified for the job than Pollock. Pollock
presented 14 examples in his brief. (P. Br. 9-17). For example, one former Barney's Canyon
employee who had been a re-rate supervisor had serious attendance problems, but these problems
were not fully documented on the attendance discipline log available to Stacy. (Ex. C-7, p. 151).
It is not disputed that Pollock had a perfect attendance record at Barney's Canyon. In addition,
this same candidate had a number of serious accidents that were not discussed during her
interview. (Ex. C-7). Wolff did not mention these accidents on his evaluation. Id. at 165.3.
Pollock had very few accidents. This former Barney's Canyon employee was hired by Utah
Copper for one of the truck driver positions.
Another former Barney's Canyon employee was suspended in 1999 for showing up for
work under the influence of alcohol. (Ex C-19). The Utah Copper interview sheet for this
candidate mentions this suspension but dismisses it as "No problems - 1 time 3 years ago." Id. at
206. All of Pollock's suspensions occurred prior to mid-1999 and, given his 13-year
employment history at Barney's Canyon, they all were given in a relatively short period of time,
1996-99. This candidate also had a driving under the influence (DUI) on his record that he did
not report on his Utah Copper application for employment. Pollock believes that Utah Copper's
explanation that this candidate was not required to report this DUI because it was a misdemeanor
59

is disingenuous. In addition, this candidate had a number of disciplinary warnings for
committing "unsafe acts" at Barney's Canyon. Pollock points to the fact that both Barney's
Canyon and the Utah Copper interviewer rated him excellent for safety. (Ex. C-19 p. 201, 203).
This candidate was hired by Utah Copper.
Another former employee of Barney's Canyon, Tony Lopez, had been a miners'
representative under the Mine Act. He also filed a discrimination complaint against Barney's
Canyon in 1998. He interviewed for a position as a utility man at the Utah Copper power plant,
but he was not hired. (Ex. C-10 p. 2226). Stacy did not interview or seriously consider Lopez
because he had already been interviewed and rejected. Wolff did not give Lopez a very good
evaluation. Id. at 2240. Pollock believes that Utah Copper did not hire Lopez because of his
protected activities.4
Pollock cites other incidences where former Barney's Canyon re-rate supervisors with
employment records that are not as exemplary as he believes his record to be were hired by Utah
Copper. These candidates had serious accidents in their history, extensive disciplinary records,
or they only worked for Barney's Canyon a short period of time. (See P. Br..14-17; Exs. C-9, C11 through C-17, C-20, C-35). Pollock contends that, taken together, these examples show that
those former Barney's Canyon employees who engaged in protected activities, including Pollock,
were passed over for positions at Utah Copper while candidates who had not engaged in
protected activities, whose personnel records were more problematic than his, were hired.
I conclude that Pollock established a prima facie case of discrimination. There is seldom
a smoking gun in these cases because direct evidence of a discriminatory motive is rarely
encountered. There is evidence to show that there was communication between management and
the human resources departments at Utah Copper and Barney's Canyon, Utah Copper was aware
of Pollock's protected activities at Barney's Canyon, management at Barney's Canyon was at
times hostile to the manner in which Pollock pursued these protected activities, Utah Copper had
a motive to be suspicious of Pollock as a result of Greg Pollock's protected activities, and Utah
Copper favored former Barney's Canyon re-rate supervisors over other employees who had
frequently engaged in protected activities. Taken as a whole, I find that this evidence is
sufficient to establish a prima facie case.
c. Utah Copper's Affirmative Defense

I find, however, that Utah Copper's affirmative defense overcomes Pollock's primafacie
case. Pollock's case was built on inferences that he asked me to draw from circumstantial
evidence. Although his evidence was enough to establish a prima facie case, I find that Utah
4

In September 2002, the Secretary of Labor filed a discrimination complaint on behalf of
Mr. Lopez. Sec'y ofLabor on behalfof Tony Lopez v. Kennecott Utah Copper Corp., WEST 2003223-DM. By order dated January 5, 2004, I approved the parties' settlement of that case. I draw no
inferences in this case from the settlement of Lopez's case.

60

Copper affirmatively established that Stacy decided not to hire Pollock because of his concerns
about Pollock's unprotected conduct. Stacy made the ultimate decision for Utah Copper based
on Pollock's unprotected activities. In reaching this conclusion, I am aware of the admonition of
Congress that "[w]henever protected activity is in any manner a contributing factor to the
retaliatory conduct, a finding of discrimination should be made." Legis. Hist. at 624.
I credit the testimony of Mr. Stacy with respect to the reasons he set forth for his decision
not to hire Mr. Pollock. I find that Stacy was a straight-forward, honest witness. He was
concerned that Pollock would be a difficult employee to supervise because of his disciplinary
history and because he did not give Stacy the impression of being a team player during the
interview. I credit Stacy's testimony that he reached his decision independently, based on
Pollock's interview and disciplinary record, without serious consideration of Wolff's evaluation.
Although some of the friction between Pollock and management at Barney's Canyon was a result
of Pollock's safety activities, most of this friction was a consequence of his unprotected
activities. Some of this conflict is discussed in my decision with respect to the discrimination
complaints filed by the Secretary on behalf of Pollock against Barney's Canyon. 22 FMSHRC
419, 428-39. The record in that case revealed that Pollock often complained about his job duties,
refused or was reluctant to perform any duties that were not part of his normal routine, resi sted
management directives to change the manner in which he performed his work, and sometimes
refused to take responsibi lity for his actions. In one incident a Barney's Canyon supervisor
believed that Pollock threatened to make an MSHA inspection "tough" for the company if he
disciplined him for watching television at work. Barney's Canyon issued the discipline to
Pollock because he refused to admit that he was watching television. In another incident litigated
in that case, Pollock was suspended for eight days for refusing a reasonable work assignment. In
my decision, I reached the following conclusion:
I find that most of the hostility that developed between the company and
Pollock is a result of his union activities and the perception that he is
frequently disrespectful and disobedient to Kennecott's managers. The
record shows that he frequently argues with supervisors about work
assignment.
22 FMSHRC at 432.
Stacy relied on the disciplinary actions taken against Pollock at Barney's Canyon as
summarized in the attendance and discipline Jog. (Ex. R-4). Pollock's suspensions shown on the
log were not given in retaliation for his protected activities. Although Pollock and the Secretary
argued that some of this discipline was for his protected activities, I rejected these arguments in
my decision in that case. 22 FMSHRC at 437-39. Of course, the fact that Pollock challenged
these suspensions in a discrimination case is also protected, but I credit Stacy's testimony that he
was not aware of that case at the time he decided not to hire Pollock. (Tr. 306). It was
reasonable for Stacy to conclude from Pollock's previous suspensions that he might be a difficult
employee to supervise and that he might not be a good team player.
61

Because Wolff did not testify in the present case, it is not clear how he arrived at his
evaluations on the reference form. (Ex. R-5). Pollock asserts, without proof, that Wolff's
negative evaluation of him was based on his protected activities. Given Pollock's history of
discipline at Barney's Canyon and his rather combative style, it is just as likely if not more likely
that Wolff based his evaluation on Pollock's unprotected activities alone. Wolff's notation on
the form that Pollock filed a discrimination case to get his record expunged and that he lost the
case most likely refers to my decision in Pollock's case against Barney's Canyon.
Stacy testified that he placed a big emphasis on his assessment of a candidate's ability to
work with others on a team. Team skills and the ability to work with others is important to Utah
Copper when it retains existing employees and hires new employees. See Sec'y of Labor on
behalf of Ondreako v. Kennecott Utah Copper Corp., 25 FMSHRC 612, 616 (Oct. 2003). Under
"Team Player," the interview form indicates that Utah Copper is looking for candidates who
"will pull together with others, share information and ideas, and share solutions to operating and
maintenance challenges." (Ex. R-6). Although it may not be a traditional hiring criteria in the
mining industry, the ability to work with others on a team is a legitimate business justification for
choosing one candidate over another, so long as it is not used in a discriminatory manner. 5 As
stated above, Stacy rated Pollock poor with respect to the "Team Player'' and "Supervision"
criteria.
Stacy characterized Pollock's interview as "one-sided." Stacy was concerned that
Pollock talked too much about himself and could not describe how well he interacts and works
with others to solve work challenges. Given Pollock's history of suspensions, Stacy was
particularly interested in his ability to work and share with supervisors and other employees. In
Stacy's opinion, Pollock fai led to explain how he had corrected his work behavior since the time
of his suspensions. On the interview summary, Stacy noted that Pollock was familiar with heavy
equipment and had a good record in safety but that he was "weak in the area of cooperation and
interactions with supervisors." (Ex. R-6).
Pollock's evidence about disparate treatment is not convincing. Mr. Lopez was not
interviewed by Stacy for a haul truck driver position because he had been rejected for another job
at the Utah Copper power plant. The record does not make clear whether Stacy seriously
considered Lopez fo r a truck driver position and why he did not consider him. (Tr. 347). I
cannot draw an inference that Stacy refused to consider Lopez because of his protected activities
at Barney's Canyon. There is also no evidence in the record to support the supposition that
Lopez was not hired at the power plant because of his protected activities.

5

A mine operator cannot refuse to hire a candidate because, for example, he complains
about safety to MSHA without trying to resolve the matter through his team. A miner's rights under
the Mine Act supersedes any arrangement or agreement on how safety disputes should be handled
at a mine.
62

The evidence Pollock presented with respect to other candidates interviewed for truck
driver positions is too circumstantial and speculative to be persuasive. Stacy was not aware of
many of the issues that Pollock raises about these candidates at the time he decided to hire them.
Stacy relied on what the candidate said and the information in the attendance and discipline log.
If this log presented information that was incomplete or inaccurate, Stacy was not aware of these
discrepancies when he made the hiring decision. Consequently, the fact that a particular
candidate had more accidents at Barney's Canyon than Pollock does not help establish disparate
treatment if Stacy was not aware of these accidents. The same principle applies to a DUI or
attendance problems. Although it is possible to find inconsistencies in the hiring process, I find
nothing in the evidence presented by Pollock that convinces me that those candidates who
engaged in protected activities while employed at Barney's Canyon were favored over candidates
who had not engaged in such activities.6 The business justification presented by Utah Copper for
its decision not to employ Pollock does not appear to be mere pretext to cover its true
discriminatory motive. Its decision is consistent with the criteria it used to make these
employment decisions. "The Commission and its judges have neither the statutory charter nor
the specialized expertise to sit as a super grievance or arbitration board meting out industrial
equity." Chacon, 3 FMSHRC at 2516-17. I find that the evidence presented concerning Utah
Copper's employment decisions with respect to the other Barney's Canyon candidates does not
help establish a discriminatory motive with respect to Pollock.
Greg Pollock, Mark's brother, was the president of the Steelworkers Local at Utah
Copper. As such, he was active in safety matters and had engaged in protected activities. Stacy
was aware that Greg had engaged in protected activities at the Bingham Canyon mine. Welch
testified that he was concerned about Mark Pollock because Greg "created problems" at the
mine. (Tr. 215). Welch further testified that he overcame his concerns about the relationship
between Mark and Greg during Mark's interview so that his bias did not affect his thinking about
Mark. (Tr. 216). Stacy made the decision not to hire Pollock without knowing about Welch's
concerns about the relationship between Greg and Mark. At the conclusion of the interview,
Welch shared Stacy's concern about Mark's history of insubordination at Barney's Canyon. Id.
In any event, the problems Welch had with Greg Pollock appear to stem from his union activities
rather than any protected activities under the Mine Act.7 I reject the arguments made by Pollock
that Utah Copper failed to hire him because of the protected activities of his brother.
In conclusion, I find that Utah Copper decided not to extend an offer of employment to
Mark Pollock for reasons that are not protected by the Mine Act. In addition, I find that even if

6

There is no reliable evidence concerning Brad Vaughn's employment status. (Tr. 23). He
was the third miners' representative at Barney's Canyon.
7

Greg Poilock filed a discrimination complaint against Utah Copper in 2000. In my
decision in that case, I held that Greg Pollock "was disciplined solely because of his obstructive and
harassing behavior at a December 30, 1999 [labor-management] meeting" and I dismissed the case.
Greg Pollock v. Kennecott Utah Copper Corp., 23 FMSHRC 676, 683 (June 2001).
63

Utah Copper's decision not to hire Pollock was motivated in some part by Pollock's protected
activities, Utah Copper was primarily motivated by his unprotected activity and would have
rejected Pollock's application for employment on the basis of the unprotected activity alone.

Ill. ORDER
For the reasons set forth above, the discrimination complaint filed by Mark Pollock
against Kennecott Utah Copper Corporation under section 105(c) of the Mine Act is

DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:
.A rthur F. Sanda:ck, Esq., 8 East Broadway, Suite 510, Salt Lake City, UT 84111-2291 (Certified
Mail)
James Elegante, Esq., Kennecott Utah Copper Corp., P.O. Box 6001, Magna, UT 84044-6001
(Certified Mail)

RWM

64

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Ave., N.W., Suite 9500
Washington, D.C. 20001

January 28, 2004
DAVID MULLENS,

DISCRIM1NATION PROCEEDING
Complainant,
Docket No. WEVA 2003-155-D
HOPE CD 2002-9

V.

U.S. STEEL MINING COMPANY, LLC,
Respondent

50 Mine
Mine ID 46-01816

DECISION
Appearances:

David Mullens, Pineville, West Virginia, pro se,
Michael P. Duff, Esq., U.S. Steel Corporation, Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Zielinski

This case is before me on a complaint of discrimination fi led by David Mullens pursuant
to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C.
§ 815(c)(3). 1 Mullens alleges that U.S. Steel Mining Company, LLC, ("U.S. Steel")
discriminated against him by suspending him for disciplinary reasons on June 6, 2002, as a result
of his complaints about safety. A hearing was held in Beckley, West Virginia. For the reasons
set forth below, I fi nd that Respondent did not discriminate against Mullens, and dismiss the
complaint.
Findings of Fact
Mullens is employed as a mechanic by U.S. Steel at its Gary No. 50 Mine, an
underground coal mine located in Pineville, West Virginia. He is assigned to the longwall
operation, and works the second shift. One of his primary duties is inspecting, calibrating and
maintaining carbon monoxide ("CO") monitors. As of May 2002, he had been engaged in what
he described as a "long battle ... for not months but years, trying to get the ... CO monitoring
system in compliance with law." Tr. 16. One issue involved a CO monitor near the tailpiece of
the longwall, which is required to be located in the top third of the distance between the floor and

1

Pursuant to section 105(c)(2) of the Act, a miner may submit a complaint of
discrimination to the Secretary of Labor, who must conduct an investigation and fi le a complaint
with the Commission if she determines that the Act has been violated. Section 105(c)(3)
provides that, if the Secretary determines that the Act has not been violated, the miner may file
an action before the Commission on his own behalf. 30 U.S.C. § 815(c)(2) and (3).
65

roof of the mine and within a specified distance of the face. Because the height of the coal seam
varies and the longwall moves forward rapidly, maintaining the monitor in the proper location
can prove difficult. 2
In early May 2002, Mullens reported to Marvin Cochran, the area manager of the
longwall operation, that the location of the monitor was not in compliance with regulations and
that he had been noting that fact in the "permissibility book." After some prompting from
Mullens, Cochran stated that he would "take care of it." Tr. 16-17. On June 5, 2002, Mullens
was preparing to work his normal evening shift, which began at 4:00 p.m., and noticed that the
monitor was hanging from the longwall equipment, about 15 inches from the floor, in coal that
was about six and one-half feet thick. About 3:45 p.m., as he was passing through a locker room
area, he noticed Cochran and "confronted" him about the problem. The longwall had not
operated that day and was not expected to operate on the evening shift. Cochran was involved in
a discussion with other managers who were trying to address the problems that had interfered
with production. Mullens told Cochran that "the [CO] monitor was still out of compliance and
that he had not taken care of it" as he had promised to do. Tr. 18.
Cochran responded by instructing Mullens to call down to the day-shift personnel, who
were still in the mine, and tell them to fix the problem. Mullens responded that the day-shift men
would not listen to him, and that Cochran needed to give the instruction. Cochran replied that it
would be better if Mullens just fixed the problem himself. Mullens replied that his immediate
supervisor, White Mullins, had already assigned him duties for the day and that Cochran should
"run it by" Mullins. Cochran said he didn't have to run it by anybody - that he was telling
Mullens what to do and that he was to do it. Mullens stated that he had no problem fixing the
monitors, but had to tell his foreman what he was going to do. Cochran told him that he didn't
have to tell anyone. Mullens reiterated that he needed to tell his foreman and Cochran repeated
that he was Mullens' boss - Mullens countered that his foreman was his boss.3 The increasingly
emotional nature of this exchange resulted in raised voices by both parties.

In the course of the argument, Mullens attempted to move past Cochran toward the door
to an adjacent office where his foreman was located. Cochran moved to block his path, and
repeatedly did so as Mullens tried to get around him. In the course of insisting that Mullens was

2

It is not clear why positioning of the monitor was a long-standing problem. Mullens
explained that the preferred solution was to fabricate a bracket to hold the monitor and weld it to
the "stage loader." Tr. 36-38. Cochran testified that the problem could have been remedied in a
few minutes by hanging the monitor from a roof bolt. Because the longwall face advanced
rapidly, it would have to be "moved pretty regular," but it would be in compliance. Tr. 77.
Mullens agreed that there were temporary measures that could have been taken, but rejected the
roof bolt solution. Tr. 43.
3

White Mullins was foreman of a crew working on the longwall, and reported to
Cochran, the area manager.
66

to do what he told him to do, Cochran pointed at Mullens with his index finger and twice made
contact with Mullens' chest. At the first contact, Mullens backed away and told Cochran not to
touch him. After the second contact, Mullens stated, "Marvin , I've done told you once, I'm not
telling you no more, you touch me again, I'm going to put you on your ass." Tr. 20.
Cochran then told Mullens to come with him upstairs. Mullens thought that Cochran
intended to bring the matter to the attention of the mine superintendent. Cochran, however, tol~
Mullens to sit in his office because he wanted to settle the matter himself. Tr. 20-21, 79.
Essentially the same exchange took place - Cochran insisted that Mullens do what he was told
and Mullens repeated the warning of what he would do if Cochran touched him again. T hey
then proceeded to the office of Russell Combs, the mine superintendent, where, in the presence
of union officials, they related their versions of the controversy. Cochran stated what had
happened, followed by Mullens. When Mullens was finished, he asked Cochran if what he had
stated was correct, and Cochran replied ''That's basically it." Tr. 23. David Ti lley, one of the
union officials present because of the potential for disciplinary action, corroborated the
respective descriptions of events. Tr. 54-60, 109-11. There were few differences in their
statements.
T here were, however, differences in recollections of one aspect of the confrontation and
how the participants reported it during the meeting. Mullens testified that he told Cochran that
he would fix the monitor. 4 Cochran recalled that· Mullens had stated that it was not his job to fix
the monitor. Tr. 19, 28, 73-74. However, Cochran later testified that he wasn't sure if Mullens
had said that it wasn't his job. Tr. 87. In his mind, Mullens' insubordination was insisting on
going to his foreman's office rather than proceeding to fi x the monitor. Cochran explained, "I
was instructing him what I wanted him to do .... He was refusing a direct order." Tr. 89.
Combs' recollection also varied, but he arrived at the same conclusion that Cochran did. He
initially thought that Mullens had said that he told Cochran that he wouldn't fix the monitor.
However, he later testified that he didn't think Mullens made such a statement - that that was a
conclusion he reached. "[W]hat I heard was Mr. Mullens refusing to do the work and he wasn't
going to do it with Mr. Cochran telling him, the only way was if his boss came and told him."
Tr. 106. I find that Mullens told Cochran that he would fix the monitor. However, he tacitly
refused to begin working on it immediately, and insisted on proceeding to hi s foreman's office.
Because of the emotional state of the two participants, Combs decided that they shouldn ' t
work further that day. He also wanted to consult with company human resources staff on
potential courses of action, and to review Mullens' work record. Tr. 98. Cochran had worked
the day shift and was departing. Mullens was sent home. The following day, Mullens was given
a notice of disciplinary action advising him that he was being suspended for five days. It read, in
part:

4

T illey also testified that during the meeting Mullens related that he had told Cochran
that he had no problem doing the work. Tr. 54, 109.

67

On Wednesday, 06105102, you were involved in an incident involving Marvin
Cochran, area manager-longwall, in which Mr. Cochran gave you an order to
perform certain work, and you refused. You also used abusive and threatening
language towards Mr. Cochran. These actions constitute a violation of Mine and
Shop Conduct Rule #4 "Insubordination (refusal or failure to perform work
assigned or to comply with supervisory direction) or use of profane, obscene,
abusive, or threatening language or conduct towards subordinates, fellow
employees, or officials of the Company.
Ex. R-2.
On June 10, 2002, Mullens filed a complaint of discrimination with the Secretary's Mine
Safety and Health Administration ("MSHA"), alleging that he had been discriminated against
when he was suspended on June 6, 2002.5 He identified Marvin Cochran as the person
responsible for the discriminatory action. By letter dated January 16, 2003, MSHA advised that
its investigation had been completed and that it had concluded, on behalf of the Secretary, that no
discrimination had occurred. Mullens then filed the instant complaint of discrimination with the
Commission, pursuant to section 105(c)(3) of the Act.
Conclusions of Law - Further Findings of Fact
A complainant alleging discrimination under the Act typically establishes a prim.a facie
case by presenting evidence sufficient to support a conclusion that he engaged in protected
activity and suffered adverse action motivated in any part by that activity. See Driessen v.
Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec'y of Labor on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec'y of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may
rebut the primafacie case by showing either that no protected activity occurred or that the
adverse action was in no way motivated by protected activity. See Robinette, 3 FMSHRC at 818,
n. 20. If the operator cannot rebut the primafacie case in this manner, it nevertheless may
defend affirmatively by proving that it was also moti vated by the miner's unprotected activity
and would have taken the adverse action for the unprotected activity alone. Id. at 817-18;
Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,
642-43 (4th Cir. 1987) (applying Pasula-Robinette test).
While the operator must bear the burden of persuasion on its affirmative defense, the
ultimate burden of persuasion remains with the complainant. Pasula, 2 FMSHRC at 2800;
Schulte v. Lizza, 6 FMSHRC 8, 16 (Jan. 1984).

5

Mullens also filed a grievance through his union, protesting the suspension. That
matter went to arbitration and was decided in u:s. Steel' s favor. In addition, Mullens initiated a
criminal action against Cochran who, after a trial , was acquitted of a charge of battery.
68

Prima F acie Case

Section 105(c)(l ) of the Act prohibits discrimination against any miner who complains to
an operator or its agent about "an alleged danger or safety or health violation." 30 U.S.C.
§ 815(c)(l). Mullens' June 5th complaint about the CO monitor, as well as his prior reports of
problems with the CO monitoring system, was activity protected under the Act. Mullens suffered
adverse action, a five-day suspension.
The principle issue as to Mullens' primafacie case is whether the adverse action was
motivated in any part by his protected activity. For the reasons set forth below, I find that the
adverse action was not motivated by his protected activity.
Both Cochran and Combs testified credibly that Mullens' protected activity played no
part in the decision to discipline him. Tr. 80, 103. The decision to take disciplinary action was
made by Combs, who was not involved in, and did not witness the confrontation. He listened to
the parties' descriptions of the events and, after consulting with human resources staff and
reviewing Mullens' work record, decided to impose a five-day suspension. While Mullens
believed that the five-day suspension was an "awful rough penalty," as noted below, there is no
evidence that he was treated disparately under U.S. Steel's disciplinary system.
Mullens had engaged in protected activity on numerous prior occasi<;ms, none of which
resulted in adverse action. His duties included calibration and maintenance of safety equipment,
and he had periodically brought issues to management's attention for years. Consequently, he
was engaged in protected activity on an ongoing basis. Despite the friction he described, he had
never been disciplined for such actions. Tr. 32-33. Mullens brought problems with the CO
monitors directly to MSHA's attention "probably six times" prior to June of 2002. Tr. 35. None
of those complaints led to any adverse action. Similarly, Mullens' encounter with Cochran in
May of 2002, which he described as a "confrontation," did not result in discipline. Tr. 16, 30.
While the confrontation began with Mullens' protected activity, that issue quickly became
moot. Cochran directed Mullens to remedy the problem, a task within his duties and
responsibilities. Tr. 19, 86, 103. The dispute that followed concerned whether Mullens would
immediately address the problem, as Cochran wanted him to do, or go to his foreman's office
first. The interaction quickly escalated to a heated exchange, with both participants stepping over
the 1ine of reasonable conduct.
Evidence of disparate treatment can be highly probative of unlawful motive, just as
evidence of consistent treatment can indicate the lack thereof. Sec'y of Labor on behalf of
Bernardyn v. Reading Anthracite Co., 23 FMSHRC 924, 929 (Sept. 2001). Here, Mullens
introduced no evidence that there were other similarly situated miners that were treated more
favorably in the disciplinary process. Respondent presented limited evidence on that issue.
Combs testified that he had disciplined "several" miners for violations of Rule #4, suggesting
that Mullens' discipline was consistent with established disciplinary practices. Tr. 104.
69

Even though there is no direct evidence of unlawful motivation, the Commission has
recognized that such evidence seldom exists and that discrimination often must be proven
through circumstantial evidence. Sec'y of L<ibor on behalf of Garcia v. Colorado La.va, Inc.,
24 FMSHRC 350, 354 (April 2002), citing Sec'y of La.boron behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C.Cir.
1983). Circumstantial evidence of unlawful motivation may include an operator's knowledge of
the protected activity, hostility toward the protected activity, coincidence in time between the
protected activity and the adverse action, and disparate treatment of the complainant. Id.
Here, Cochran was well aware of Mullens' protected activity, and the discipline
immediately followed the June 5th complaint. Cochran reacted with hostility toward Mullens,
and there had been some friction between the two in the past. Such evidence could justify an
inference that the adverse action was motivated in part by protected activity. I decline to draw
such an inference here. The significance of the timing of the disciplinary action and Mullens'
protected activity of June 5th is largely offset by the fact that Mullens' pattern of protected
activity had never resulted in adverse action. Moreover, I find that Cochran's hostility was not
directed toward Mullens' protected activity, but was a consequence of their respective
personalities.
There had been long-simmering friction between Mullens and Cochran. Tr. 63. Mullens
was described by a co-worker as a very thorough person who strived to make sure that operations
that were his responsibility were properly and timely performed. Tr. 45-46. He impressed me as
a person who approached his job duties with considerable intensity, and who would readily
confront supervisors that he viewed as unresponsive to work-related issues. On June 5th,
Mullens approached Cochran in a confrontational manner, and he described his encounter a
month earlier as a confrontation. Tr. 16, 18, 7 1. Cochran had a somewhat authoritarian manner
of supervising. Tr. 76. Dennis Elswick, a former U.S. Steel employee who witnessed the
June 5th incident but did not hear what was said, testified that "the tension between the two was
really heated ... and that's when I thought to myself, this is not going to be good because
[Cochran] has a history of not being able to talk to people real well. If they don 't do exactly what
he says immediately, then, you know, it winds up in a confrontation, but most of the time it don't
go this far." Tr. 47. The conflict between Mullens' intensity and confrontational manner and
Cochran's intolerance of anything short of complete deference to his instructions produced a
predictable result, one that bore no relationship to the subj ect matter of the interaction.
Mullens' argument on causation is, in essence, that he acted reasonably and wi th
justification, and that his protected activity had to be the reason he was disciplined. As he
explained it, "the argument we [were] having was over [protected activity] and at the time I
didn't feel that I had done [anything] wrong to deserve the treatment that I received." Tr. 27-28.
The disciplinary letter referred to two grounds for the suspension: insubordination and abusive
language. Mullens was surprised by the inclusion of insubordination, because he had told
Cochran that he would fix the monitor. Tr. 28. As noted above, however, he refused to
immediately go and work on the monitor. Cochran and Combs conceded, at least in retrospect,

70

that it would have been reasonable for Mullens to notify his foreman of his new duties for the
shift. Tr. 89, 107. The dispute that precipitated the disciplinary action was actually over when
and how that notification would be accomplished. Mullens insisted on going to his foreman's
office before he started the work, while Cochran insisted that he immediately depart to do the
work. Mullens, somewhat reluctantly, conceded that there was an alternative means of notifying
his foreman that would have avoided the conflict with Cochran, i.e., calling from a phone in the
mine as he proceeded to the work site. Tr. 118-20. However, he firmly believed that the "best
way" to accomplish the notification was to physically proceed to his foreman's office. Tr. 119.
Mullens' preferred method of notifying his foreman may well have been quite reasonable.
However, his insistence on pursuing that avenue, rather than proceeding toward the work site,
required that he ignore Cochran's directive and subject himself to disciplinary action for
insubordination.
It is difficult to fault Mullens for reacting as he did to Cochran's touching. Cochran's
actions clearly provoked Mullens' threats. Charles E. Ashley, who witnessed the encounter,
testified that "if he was doing it to me, I would have poked him in the nose." Tr. 65. The
Commission has held that an operator may not rely on wrongfully provoked conduct as a
business justification for otherwise discriminatory action. See Sec'y of Labor on behalf of
Bemardyn v. Reading Anthracite Co., 23 FMSHRC 924, 936-38 (Sept. 2001), citing Moses v.
Whitley Dev. Corp., 4 FMSHRC 1475, 1482 (Aug. 1982). However, the "wrongful"
provocation that the Commission has found to afford a miner broad leeway in responding has
been conduct wrongful under the Act. The complainant in Moses reacted to the operator's
"unlawful and provocative" attempts to determine if he had reported an accident to MSHA
inspectors. Id. Similarly, Bemardyn reacted to being ordered to dri ve faster under highly unsafe
driving conditions and his removal from the haulage run for not doing so.
Cochran did not berate Mullens or direct him to ignore the safety problem. Rather, he
ordered Mullens to immediately remedy it. Cochran's provocative touching was prompted by
Mullens ' tacit refusal to immediately embark on the task, and was not motivated by his protected
activity. Cochran's conduct may have been unjustified from a personal relation standpoint, but
was not unlawful under the Act.
I find that U.S. Steel made the decision to discipline Mullens solely as a consequence of
his unprotected activity, i.e., his tacit refusal to do what Cochran had instructed him to do and his
use of abusive and threatening language. Accordingly, I find that Complainant has failed to
prove a prima facie case of discrimination.
Respondent's Affirmative Defense
While I have.rejected Mullens' argument on causation, there is no question that his
interaction with Cochran, at least initially, involved protected activity. It is also clear that
hostility had developed between Cochran and Mullens. I have found that that hostility was a
result of a personalty conflict, rather than the subject matter of their interactions. Nevertheless,
71

the line between Mullens' protected and unprotected activity is very thin. Assuming, for
purposes of argument, that Mullens' discipline was in some part the result of his protected
activity, it would be necessary to examine Respondent's affirmative defense.
In Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 251617 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983), the Commission
explained the proper criteria for analyzing an operator's business justification affirmative
defense:
Commission judges must often analyze the merits of an operator's alleged
business justification for the challenged adverse action. In appropriate cases, they
may conclude that the justification is so weak, so implausible, or so out of line
with normal practice that it was mere pretext seized upon to cloak discriminatory
motive.
The Commission and its judges have neither the statutory charter nor the
specialized expertise to sit as a super grievance or arbitration board meting out
industrial equity. Once it appears that a proffered business justification is not
plainly incredible or implausible, a finding of pretext is inappropriate. We and
our judges should not substitute for the operators's business judgment our views
on "good" business practice or on whether a particular adverse action was "just"
or "wise." The proper focus, pursuant to Pasula, is on whether a credible
j ustification figured into motivation and, if it did, whether it would have led to the
adverse action apart from the miner' s protected activities. If a proffered
justification survives pretext analysis ... , then a limited examination of its
substantiality becomes appropriate. The question, however, is not whether such a
justification comports with a judge's or our sense of fairness or enlightened
business practice. Rather, the narrow statutory question is whether the reason was
enough to have legitimately moved that operator to have disciplined the miner.
(citations omitted).
The Commission further explained its analysis in Haro v. Magma Copper Co,
4 FMSHRC 1935, 1938 (Nov. 1982):
[T]he reference in Chacon to a "limited" and "restrained" examination of an
operator's business justification defense does not mean that such defenses should
be examined superficially or be approved automatically once offered. Rather, we
intended that a judge, in carefully analyzing such defenses, should not substitute
his business judgment or sense of "industrial justice" for that of the operator. As
we recently explained, "Our function is not to pass on the wisdom or fairness of
such asserted business justifications, but rather only to determine whether they
are credible and, if so, whether they would have motivated the particular operator
as claimed." (citations omitted).
72

Respondent, through the testimony of Combs, advanced a credible business justification
for suspending Mullens. He was presented with a dispute between a miner and a mid-level
manager that continued to be highly emotional at the time of the meeting. Tr. 97-99. He
concluded, in essence, that Mullens had refused to commence the work Cochran had directed
him to do until he could talk to his foreman. Tr. 103. Mullens freely admitted threatening
Cochran. Combs reviewed Mullens' work record, consulted with company human resources
personnel, and decided to impose a five-day suspension. The only evidence on the issue suggests
that the discipline was consistent with other disciplinary actions taken by Respondent for
violations of the subject rule. Mullens had never been disciplined for any of his previous
protected activity.
I find that Respondent would have taken the disciplinary action for Mullens' threatening
language and tacit insubordination, even if there had been no protected activity involved at the
beginning of the confrontation. Respondent, therefore, established an affirmative defense to the
charge of discrimination.
While I have found that Mullens' complaint is not viable under the Act, his argument on
liability has considerable appeal. He agreed that he would correct the problem with the CO
monitor, as Cochran had instructed him to do. His determination to proceed a short distance to
his foreman's office to tell him about the change in his job duties may well have been the "best
way" to accomplish that task, and his threats were clearly provoked by Cochr.a n's actions. On the
whole, he acted no more unreasonably than Cochran did. Nevertheless, the consequences of that
unfortunate encounter fell entirely on him, and a five-day suspension does, indeed, seem like an
"awfully rough penalty," considering all of the circumstances.
As noted above, however, the Commission's jurisdiction is limited. Commission
Administrative Law Judges are not free to impose their views on whether discipline was "just" or
"wise." My sole responsibility is to determine whether Respondent violated the Act, and I am
convinced that it did not.

ORDER
For the reasons stated above, I find that U.S. Steel's decision to discipline Mullens was
not motivated in any part by Mullens' protected activity. Rather, it was based solely upon
legitimate business considerations. In the alternative, I find that U.S. Steel would have taken the
disciplinary action as a result of Mullens' unprotected activities alone. Accordingly, the
Discrimination Complaint is hereby DISMISSED.

73

Distribution (Certified Mail):
David Mullens, P.O. Box 464, Pineville, WV 24874
Michael P. Duff, Esq., U.S. Steel Corp., 600 Grant Street, 15th Floor, Pittsburgh , PA 15219-2800
/mh

74