MARCH AND APRIL 2006

COMMISSION DECISIONS AND ORDERS
03-06-2006 Clean Energy Mining Co.
03-24-2006 Chad Broussard empl. by North American Salt
03-30-2006 Emerald Coal Resources, LP
04-04-2006 D . Blosch Crushing, Inc.
04-10-2006 Jeppesen Gravel
04-25-2006 Celite Corporation
04-25-2006 Climax Molybdenum Company

KENT 2006-174
CENT 2006-102-M
PENN 2006-156
WEST 2006-265-M
CENT 2006-95-M
WEST 2006-266-M
WEST 2006-322-M

Pg. 87
Pg. 90

WEST 2003-196-M
SE
2005-51
LAKE 2005-50-RM
LAKE 2005-83-R
CENT 2006-98-DM
SE
2005-236-M
WEVA 2003-149
KENT 2005-249-D

Pg. 115
Pg. 134
Pg. 143
Pg. 155
Pg. 172
Pg. 180
Pg. 190
Pg. 194

SE
2004-68-M
YORK 2005-116-M

Pg. 225
Pg. 228

Pg. 94
Pg. 98
Pg. 101
Pg. 105
Pg. 111

ADMINISTRATIVE LAW JUDGE DECISIONS

03-02-2006 Stillwater Mining Company
03-09-2006 Jim Walter Resources, Inc.
03-15-2006 Hibbing Taconite Company
03-16-2006 Wabash Mine Holding Co.
03-21 -2006 Smasal Aggregates & Asphalt, LLC.
03-22-2006 Imerys Pigments, LLC.
03-22-2006 Elk Run Coal Company
03-24-2006 'William Arthur Bowen v. Sidney Coal Co., Inc.

ADMINISTRATIVE L AW JUDGE ORDERS
03-30-2006 Master Aggregates Toa Baja Corp.
04- H -2006 R. J. Cincotta Co., Inc.

i

--

MARCH AND APRIL 2006

Review was granted in the following cases during the months of March and April:
Secretary of Labor, MSHA v. San Juan Coal Company, Docket No. CENT 2004-212. __
(Judge Hodgdon, January 24, 2006)
Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket No. SE 2005-51.
(Judge Weisberger, March 9, 2006)
Secretary of Labor, MSHA v. Imery's Pigments, LLC., Docket No. SE 2005-236-M.
(Judge Melick, March 22, 2006)

No petitions were filed in which Review was denied during the months of March and April:

ii

·.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500'
WASHINGTON, DC 20001

March 6, -2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 2006-174
A .C . No. 15-10753-47267

v.
CLEAN ENERGY MINING CO.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER
BY THE COMMISSION:

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

§ 801 et seq. (2000) ("Mine Act"). On February 17, 2006, the Commission received from Clean
Energy Mining Co. ("Clean Energy'') a motion made by counsel to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a);

On October 13, 2004, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Citation No. 7414527 to Clean Energy's Mine No. 1. Mot. at 1. The company
timely contested the citation on November 12, 2004, and it is the subject of Docket No. KENT
2005-94-R, which is currently on stay before Commission Administrative Law Judge T. Todd
Hodgdon. Id. When MSHA subsequently proposed a penalty for Citation No. 7414527, Clean
Energy paid it. Mot. at 2. The company now contends that it made the payment inadvertently,
and asserts that it had always intended to contest both the validity of the citation and any related
penalty. Id.; Statement of Steve Endicott. The Secretary states that she does not oppose Clean
Energy's request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the

28FMSHRC 87

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1 (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787.
Having reviewed Clean Energy' s motion, in the interests ofjustice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether good cause exists for
Clean Energy's failure to timely contest the penalty proposal, and whether relief from the final
order should be granted. If it is determined that such relief is appropriate, ·this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

28FMSHRC 88

Distribution
M . Shane Harvey, Esq.
Massey Coal Services, Inc.
P .O. Box 1951
Charleston, WV 25327
W. Christian Schum~ Esq.
Office of the Solicitor
U .S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Noelle Holladay True, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
Chief Administrative Law Judge Robert J . Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28FMSHRC89

--

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

March 24, 2006

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2006-102-M
AC. No. 16-00357-70579A

v.

--

CHAD BROUSSARD, Employed by
NORTH AMERICAN SALT COMPANY

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2000) ("Mine Act"). On March 7, 2006, the Commission received a motion made
by counsel on behalf of Chad Broussard, employed by North American Salt Company, to reopen
a penalty assessment against Broussard under section l lO(c) of the Mine Act, 30 U.S.C. § 820(c),
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U .S.C. § 815(a). Counsel filed an amended motion on March 8, 2006.
Under the Commission's Procedural Rules, an individual charged under section 1 lO(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C ..F.R . § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
On October 28, 2005, the Department of Labor' s Mine Safety and Health Administration
("MSHA") mailed a proposed penalty assessment to Broussard alleging that he was personally
liable under section 110(c) of the Mine Act for two citations (Nos. 6229860 and 6209573) and
one order (No. 6229861) issued to his employer, North American Salt Company. Am. Mot. at 2
and Ex A. The citations and order issued to North American Salt Company are the subject of
consolidated proceedings before Commission Administrative Law Judge Avram Weisberger.
Docket Nos. CENT 2005-97-RM, CENT 2005-98-RM, and CENT 2005-67-M. These

28FMSHRC90

proceedings had been (and currently are) stayed pending the conclusion of the Secretary's related
section 110(c) inve8tigation. Although Broussard states that he intended to contest the
Secretary's proposed penalties, Am. Mot. at 5, "due to a miscommuiiication and a filing error or
mistake," no contest was filed, id. at 3. The Secretary does not oppose Broussard's request for
relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR'). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
. § 2700.1(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR, 15 FMSHR.C at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits pennitted.
See Coal Prep. Servs., Inc., 11FMSHR.C1529, 1530 (Sept. 1995).

28FMSHRC9i

Having reviewed Broussard' s request in the interests ofjustice, we remand this ~atter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Broussard' s failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determi!led that such relief is appropriate, this case shall proceed
pursuant fo the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

-

28FMSHRC92

Distribution
Mark N . Savit, Esq.
R. Brain Hendrix
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
._

Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Ave., N.W., Suite 9500
Washington, D .C. 20001

28 FMSHRC 93

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION .
601 NEW JERSEY AVENUE, NW

SUITE9500

WASHINGTON, DC 20001

March 30, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2006-156
A.C. No. 36-05466-73705

v.
·-

EMERALD COAL RESOURCES LP
BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER
BY THE CO:tvfMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On March 22, 2006, the Commission received from Emerald
Coal Resources LP (''Emerald") a motion made by counsel to reopen a penalty assessment that
had become a final order of the Commission pursuant to section l05(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On September 29, 2005, the Department of Labor's Mine Safety and Health

Administration ("MSHA") issued Order Nos. 7083772 and 7083774 to Emerald's No. I Mine.
Mot. at I. The company timely contested the orders, which are the subject of Docket Nos.
PENN 2006-16-R and PENN 2006-18-R, currently on stay before Commission Administrative
Law Judge Gary Melick. MSHA subsequently proposed penalties for both orders, and several
other uncontested citations and orders, in the same penalty assessment. Mot. at 1-2; Ex. 1. The
company states that although the person responsible for handling the proposed assessment
"marked on the assessment sheet that Emerald intended to contest the Orders[, he] mistakenly
believed it was not necessary'' to separately contest the penalties proposed for the orders since
28FMSHRC94

they "had already been contested." Mot. at 2. The Secretary states that she does not oppose
Emerald' s request for relief.
We have held that in appropriate circumstances, we possess jurisQiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). Jn evaluating requests to
reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R.
§ 2700.l(b) ('·' the Commission an.d its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
·-

28FMSHRC95

Having reviewed Emerald's motion, in the interests ofjustice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Emerald's failure to timely contest the penalty proposal and whether relief from the final order
should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant ta the Mine Act and the Commission's Procedural Rules, 29 C.F.R ·Part 2700.

28FMSHRC96

Distribution
R. Herny Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222

W. Christian Schwnann, Esq.
Counsel, Appellate Litigation
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247

·-

Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28FMSHRC97

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

April 4, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
Docket No. WEST 2006-265-M
A.C. No. 10-01937-11058

ADMINISTRATION (MSHA)

v.
·-

D. BWSCH CRUSHING, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Yowig, Commissioners
ORDER
BY THE COMMISSION:
This matter arises wider the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On March 6, 2006, the Commission received a letter from a
mine safety consultant to D. Blosch Crushing, Inc. (''Blosch Crushing'') requesting that the
Commission reopen a penalty assessment that purportedly became a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 15, 2003, the Department of Labor' s Mine Safety and Health Administration
(''MSHA'') sent to Blosch Crushing the proposed penalty assessment at issue. The company
asserts that it attempted to contest the proposed assessment in a letter to MSHA dated November
20, 2003, a copy of which the company included with its request to reopen. This letter is
addressed to an MSHA Pittsburgh Post Office Box that is listed on the proposed assessment fonn
used by MSHA as the address to which payments are sent. fu a response to Blosch Crushing's
request to reopen, the Secretary states: ''MSHA has no record of receiving this letter, but does
not question that the letter was sent as indicated." The Secretary also states that she does not
oppose Blosch Crushing' s request for relief.

28FMSHRC98

Although the record contains no indication as to when the company received the proposed
penalty assessment at issue, the Commission inadvertently obtained information through its
docket office that Blosch may have received the assessment on October 27, 2003. We are wiaQle
to evaluate the reliability of this information. However, the Secretary does not dispute Blosch's
statement that it mailed a letter contesting the assessment to MSHA on November 20, 2003, nor
does the Secretary oppose Blosch's motion to reopen the penalty assessment. Using these dates,
the assessment would never have become a final Commission order and further proceedings
would be appropriate. See 30 U.S.C. § 815(a) (''If: within 30 days from the receipt of the
[penalty] notification . . . the operator fails to notify the Secretary that he intends to contest . . .
the proposed assessment of penalty . .. [it] shall be deemed a final order of the Commission'')
(emphasis added).
·
Having reviewed Blosch Crushing's request, in the interests ofjustice, we remand this
matter to the Chief Administrative Law Judge. Ifit is determined the company filed a-timely
contest with MSHA, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R . Part 2700.

28·FMSHRC 99·

Distribution
Kim Redding, Consultant
N-Compliance Safety Services, Inc.
P.O. Box 8817
Lacey, WA 98509-8817
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N .W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 100

·-

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW

SUITE9500
WASHINGTON, DC 20001 .

April 10,2006

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2006-95-M
A.C. No. 13-02285-67945

v.
JEPPESEN GRAVEL
.

.

BEFORE:
Duffy~ Chairman; JOrdan, Suboleski, ?IId ~oung, Commissioners
.
.
. .
·.
.
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act'). Jn a letter fo the Commission dated February 14, 2006,
Jeppesen Gravel requested that the Commission reopen a penalty assessment that had become a,
final order of the Commission pursuant to section 105(a) ofthe Mine Act,. 30U.S.C. §. 815(a).
On March 24, 2006, the Secretary of Labor filed with the Commission an opposition to Jeppesen
Gravel's request.
Under section 105(a) of the Mine Act, an operator who wishes to contest.a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On May 19, 2004, the Department of Labor' s Mine Safety and Health Administration
(''MSHA") issued Citation No. 7845177 to Jeppesen Gravel alleging that the company "refused
to allow an authorized representative [of the Secretary] to enter the [company' s] mine." S. Opp.
at 2 and Attach. 1 & 4. Jn its letter, Jeppesen Gravel acknowledges that it refused to allow
MSHA inspectors onto its mine site. Jeppesen Letter at 2. On August 18, 2004, MSHA applied
to the United States District Court for the Northern District of Iowa for injunctive relief to obtain
access to the Jeppesen Gravel mine site. S. Opp. at 2 and Attach. 2 & 3. Soon thereafter, the
court issued an injunction enjoining Jeppesen Gravel from interfering with MSHA inspecting the
mine. Id.
28 FMSHRC 101

On September 26, 2005, MSHA issued to Jeppesen Gravel a proposed penalty assessment
for Citation No. 7845177. S. Opp. at 3. On October 3, 2005, Jeppesen Gravel refused to accept
delivery of the proposed assessment. S. Opp. at 3 and Attach. 5; see also Jeppesen Letter at 3
("Anything that came to our house through the mail from MSHA we would refuse and return.").
The assessment became a final Commission order on November 2, 2005. See 30 U.S.C. § 815(a)
("If, within 30 days from the receipt of the notification issued by the Secretary, the operator fails
to notify the Secretary that he intends .to contest .. . the proposed assessment of penalty ... [it]
shall be deemed a final order of the Commission. . . . Refusal by the operator or his ~gent to
accept certified mail containing a citation and proposed assessment of penalty under.this
subsection shall constitute receipt thereof within the meaning of this subsection."). The company
now requests that this matter be reopened because "February 13, 2006 is the very first time we
laid eyes on this citation. We had no idea it even existed." Jeppesen Letter at 1. In opposing
Jeppesen Gravel's request for relief, the Secretary argues that the company "has failed to
establish adequate cause why [the] final penalty assessment should be reopene<;l." ·-S. Opp ..at 9.,
We have held that in appropriate circwnstances, we possess jurisdiction to reopen
uncontested assessments th~t have becom,e final Commission orde~ under section l.OS(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requestS to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a :final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700. l (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. However, courts have long held..that
"deliberate or willful conduct on the part of the person seeking relief from th~ judgment
precludes, by its very nature, a finding of 'mistake' or 'inadvertence."' 12 Jam~s Wm. Moore et
al., Moore's Federal Practice§ 60.41[1][c] (3d ed. 1997). Thus, "[t]o obtain relief under the
Rule [60(b)(l)], a party must demonstrate inter alia that he was not at fault." Home Port
Rentals, Inc. v. Ruben, 957 F.2d 126, 132 (4th Cir. 1992); cert. denied, 506 U.S. 821 (1992). Cf
Munn Road Sand & Gravel, 26 FMSHRC 383, 384 (May 2004) ("a party which refuses to accept
certified mail from MSHA will most likely be unable to establish good cause" to reopen a
proposed penalty assessment that has become a final Commission order).

28 FMSHRC 102

Jeppesen Gravel was unaware of Citation No. 7845177 and the penalty proposed for the
citation only because of the undisputed fact that the company refused to accept delivery of them.
This deliberate and willful conduct bars any relief under Rule 60(b)(l). Accordingly, Jeppesen
Gravel' s request for relief is denied.

._

28 FMSHRC 103

Distribution
Mrs. Jay Jeppesen

Jeppesen Gravel
719 8th Street
Sibley, IA 51249
Jerald S. Feingold, Esq.

Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247

28 FMSHRC 104

FEDERAL MINE SAFETYAND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SURC9500

·

WASHINGTON, DC 20001

April 25, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)

Docket No. WEST 2006-266-M
A.C. No. 04-02848-33115

v.

CELITE CORPORATION

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Youn& Commissioners·

ORDER

BY: Duffy, Chairman; Jordan and Young, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act''): On March 8, 2006, the..Commission received from Gelite
Corporation ("Celite'') a motion made by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine.Act, 30 U.S.C.
§ 815(a). The Secretary filed a response to Celite's motion on March 13, 2006, and Celite filed a
reply to the Secretary's response on March· 14, 2006.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later fuan.30 days after receiving the proposed
penalty assessment.. If the operator fails to notify·the Secretary; the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 28, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Celite for Citation No. 6361283, issued to
the company by MSHA on March 23, 2004. Mot. at 1-2 & Attach. Celite states in its motion
that it had already timely contested the citation. · Id. at 1. That contest is the·subject of Docket
No. WEST 2004-258-RM, which is currently before Commission Chief Administrative Law
Judge Robert J. Lesnick, who stayed the case on May 14, 2004 pending the assessment of a
penalty. Celite states that it contested the proposed penalty assessment at issue on September 28,

28 FMSHRC 105

2004, which the company concedes was until:riely. Mot. at 2; AfI. of B. Coggin.
Celite states in its motion that through counsel, it was subsequently informed that counsel
for the Secretary in the contest case ''would not oppose the contest of the proposed penalty on the
ground that it was not timely." Mot. at 2. In her response, the Secretary asserts that her counsel
"did not discuss the untimely contest in question," S. Response at 2 (emphasis in original), an
assertion Celite disputes in its reply, C. Reply at 2. Celite states that based upon this purported
conversation, it "presum[ed] that a petition for assessment of a penalty . .. would follow in:due
course," and that it thereafter "engaged in informal discovery and settlement negotiations'' with
the Secretary. Mot. at 2. 1
The Secretary states in her response that she opposes the Commission granting Celite' s
motion under Rule 60(b)(1) of the Federal Rules of Civil Procedure on the grounds that it was
not filed within one year after the proposed penalty assessment at issue became a final
Commission order. S. Response at 2; see JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct.
2004) (denying several requests to reopen :filed more than one year after the penalty proposals at
issue had become final orders, noting.that under:Rule--60(b) ofthe·Federal Rules of Civil
Procedure, any motion for relief must be made within a reasonable time, and in the case of
mistake, inadvertence, or excusable neglect not more than one year after the order was entered).
However, the Secretary states that she would not oppose the company's motion being granted
under Rule 60(b)(6) of the Federal Rules of Civil Procedure on the basis of"any other reason
justifying relief." S. Response at 3.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc. , 15 FMSHRC 782, 786-89·(May 1993) ("JWR"). In evaluating requests.to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b)·ofthe
Federal Rules of Civil Procedure. See 29 C.F-.R § 2700.l{b) (''the Commission and its Judges·
shall be guided so far as practicable by the Federal Rules of Civil Procedure\) ; JWR., 15
FMSHRC at 787. In Liljeberg v. Health Services Acquisition Corp., the Supreme Court-noted
that Rule 60(b)(6) "provides courts with authority ' adequate to enable them to vacate judgments
whenever such action is appropriate to accomplish justice,,,, though "also cautioning that it
should only be applied in 'extraordinary circumstances."' 486 U .S. 847, 864 (1988) (citations
omitted). In Johnson v. Lamar Mining Co., the Commission held .that "in appropriate
circmnstances the Commission may, in its discretion, reopen .o ne of its proceedings pursuant to
Fed. R. Civ. P. 60(b)(6) upon a proper showing that an underlying settlement agreement

1

The Secretary also asserts that in a letter dated October 1, 2004 and addressed to Celite,
MSHA informed ~e company that although.it had received the company's contest of the penalty
assessment at issue, it was untimely and that the penalty assessment had thus become a final .
order of the Commission. S. Response at 1. In its reply, Celite states that "it has no knowledge
of the October 1, 2004 letter," and counsel for Celite states "he never received a copy of
MSHA' s October I letter." C. Reply at 3.

28FMSHRC106

approved by the Commission [had] been materially breached or repudiated." 10 FMSHRC 506,
508 (Apr. 1988). See also Tolbert v. Chaney Creek Coal Corp., 12 FMSHRC 615, 618-19 (Apr.
1990) (following Johnson).
The Commission has also held that a "Rule 60(b) motion 'shall be made within a
reasonable time, and for reasons (1 ), (2), and (3) not more than one year after the judgment,
order, or proceeding was entered or taken.' ... This one-year time limit is an outside time limit
for motiQns requesting reµef under subsections (1) through (3), and may not be circumvented by
utilization of subsections (4) through (6) of Rule 60(b), which are subject only to a reasonable
time limit, when the real reason for relief falls within subsections (1) through (3)." Lakeview
Rock Products, Inc., 19 FMSHRC 26, 28 (Jan. 1997). See also Klapprott v. United States, 335
U.S. 601, 613 (1949) ("one year limitation would control if no more than 'neglect' was disclosed
by the petition'').
._

Here, we find no extraordinary circumstances that would justify granting the relief
requested. Instead, we have been presented with Celite's unexplained failure to timely contest
the proposed penalty assessment, followed by a miscommunication between counsel for Celite
and the Secretary where both counsel apparently failed to realize that the only remedy available
to Celite was for the Commission to reopen the order that had gone final, and then only for good
cause and subject to. the time limits set forth in Rule 60(b). This misunderstanding of
well-established Commission law cannot be grounds for relief under Rule 60(b)(6). Instead, it is
an error that falls squarely within the ambit of Rule 60(b)(l).2

2

Even under Rule 60(b)(1), such an error oflaw is generally not a grounds for reopening
as most courts look upon it as inexcusable neglect. See 12 James Wm. Moore et al., Moore's
Federal Practice§ 60.41[l][c][iii] (3d ed. 1997).
28 FMSHRC 107

Because Celite waited wel~ over a Year to request relief: its motion is untimely. JS Sand
& Gravel, 26 FMSHRC at 796. Accordingly, Celite' s motic:>n is denied.

28 FMSHRC 108

Commissioner Subolesk:i, dissenting:
I would grant relief from the final order in the penalty proceeding that is sought by Celite.
It is evident to me that the October 2004 communications, which closely followed the untimely
penalty contest that was filed on September 28, between the Secretary's counsel and counsel for
Celite led to the confusion that resulted in inaction in the penalty proceeding for nearly one and
one-half years. Compare Jim Walter Res., Inc., 15 FMSHRC 782, 790 (May 1993) (Rule
60(b)(6) relief unavailable where operator's decision not to contest penalty was a "deliberate
choice[]''). In the meantime, the related litigation on the underlying citation has been on stay for
nearly two years, pending assessment of the penalty. In light of the admitted confusion of the
parties over their discussion of the penalty and the inaction by the Commission in moving the
citation proceeding on its docket, I conclude that the events surrounding the reopening of the
penalty assessment constitute "extraordinary circumstances," pursuant to Rule 60(b)(6), that
would justify relief.. See Contractors Sand & Gravel, Inc., 23 FMSHRC 570, 575 (June 2001 ).

28 FMSHRC 109

Distribution
Thomas C. Means, Esq.
Crowell & Moring, LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2595
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
Susan Seletsky, Esq.
Office of the Solicitor
U.S. Department of Labor
World Trade Center
350 S. Figueroa St., Suite 370
Los Angeles, CA 90071-1202

28 FMSHRC 110

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW

SUITE9500
WASHINGTON, DC 20001

April 25, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2006-322-M
A.C. No. 05-00790-76869

v.
CLIMAX MOLYBDENUM COMPANY

BEFORE: Duffy, Chairman; Jord3n, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On April 11, 2006, the Commission received from Climax
Molybdenum Company (" Climax Molybdenum") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On January 11 , 2006, the Dep~ent of Labor's Mine Safety and Health Administration
(''MSHA") issued to Climax Molybdenum proposed penalty assessment that included a penalty
for Citation No. 6313.549 issued.to the company by MSHA on May 31, 2005. Mot. at 1. In its
motion, Climax Molybdenum states that this citation arose from the same incident involving nine
other citations that the company contested and which are set for hearing on May 16, 2006. Id.
However, the company states that when it received the penalty proposal for Citation No.
6313549, due to an inadvertent error in processing the proposed assessment, it was not timely
contested. Mot. at 2. On March 7, ·2006, Climax Molybdenum attempted to contest the penalty,
but was informed by MSHA that its con~st was untimely. Id. The Secretary states that she does
not oppose Climax Molybdenum' s request for relief.

a

28 FMSHRC i l l

We have h_e ld that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become .final Commission orders under section 105(a). Jim
Walter Res., Inc. , 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure,,); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropri~te proceedings on the merits pemritted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Climax Molybdenum's motion, in the interests ofjustice, we remand
this matter to the Chief Administrative Law Judge for a determination of whether._good cause
exists for Climax Molybdenum.' s failure to timely contest the penalty proposal and whether relief
from the ~al order should be granted. If it is determined that such relief is appropriate, this case
shall proceed pursuant to the Mine Act and the Commission's·P rocedural Rules, 29 C.F.R . Part
2700.

28 FMSHRC 112

Distribution
Katherine Shand Larkin, Esq.
Jackson Kelly PLLC
1099 18th Stree4 Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28·FMSHRC 113

._

·-

28 FMSHRC 114

·.

ADMINISTRATIVE LAW JUDGE DECISIONS

._

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avef!ue, N.W. Suite 9500
Washington, DC 20001-2021

March 2, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALT.8
ADMINISTRATION (MSHA),
Petitioner

v.

STILLWATER MINING CO.,
Respondent.

Mine: Stillwater Mine
DECISION

Appearances: Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, for
the Petitioner;
Katherine Larkin, Esq., Jackson & Kelly, PLLC, Denver, Colorado for the
Respondent,
Before:

Judge Weisberger

Statement of the Case

These consolidated cases are before me based upon Petitions for Assessment of Civil
Penalty filed by the Secretary of Labor alleging violations by Stillwater Mining Company
"Stillwater'' of various mandatory safety regulations set forth in Title 30 of the Code of Federal
Regulations. After numerous pre-hearing conferences, and with the concurrence of the parties
28 FMSHRC 115

regarding date and location, a hearing was held in Billings, Montana on May 10, 11 and 12,
2005. Subsequent to the hearing, and pursuant to numerous request for extensions, Stillwater
filed its Post-Hearing Brief on November 7, 2005 and the Secretary filed her Brief and Proposed
Findings of Fact on September 8, 2005. On November 7, 2005 the parties filed a Post-Hearing
Stipulation ("Stipulation''). Pursuant to requests for extensions, the Respondent filed a Reply
Brief on November 23, 2005 and the Secretary filed her Reply Brief and Objections to
Stillwater's Proposed Findings of Fact on.November 23, 2005. On December 12~ 2005, pursuant
to a request by the undersigned; the parties filed Additional Post-Hearing Stipulations.

· Introduction
The Stillwater Mine is an underground platinum mine, located near Nye, Montana. In
2002, the mine commenced-to use a remote control blasting system, (''PED") to initiate all the
end-of-shift blasts in the mine. 1
·The PED system includes a computer located on the surface that is connected to the
mine's "leaky feeder" radio communications s}'Stem. To initiate a blast, the blaster inserts a disc
into the computer, and enters an "arm" command followed by a ''blast" command. The
commands are transmitted via a radio signal that is received by those PED units that are turned
on, and within reception of the·signals.
Approximately 45 PED receiving units are located throughout the mine. Each PED unit
is both a radio receiver and an electric :firing device. When a PED receiving unit has been turned
on by a manually-operated key switch located on the unit, and the unit receives the appropriate
radio signal from the computer on the surface, the PED unit will discharge electricity into its
adjacent distribution panel, and into the blast (trunk) lines that are attached to the left side of the
distribution panel. Up to six lines may be connected to a distribution panel. Each of these lines
extends over a thousand feet to an electric detonator located at a blast site (stope), and constitutes
a blasting circuit.2
In July 2002, MSHA Inspector, Rodney Gust, and Explosive Specialist, Tom Lobb,
inspected Stillwater's PED blasting system for the first time, and issued a number of citations
and orders relating to its operation and condition.

'Occasionally on-shift blast are carried out at blast sites using hand-held blasting devices,
rather than the PED system.
2

The trunk (blast) lines are connected to smaller one-use lines, that are connected to
electric detonators at the face.
28 FMSHRC 116

I. Order Nos. 6273734. 6278317. 6278261. 6278263 and Citation Nos.
6269338. 626936a3 and 62780194
On July 22, 2005, the Secretary filed a motion to approve a settlement agreement
regarding these matters. The Respondent agreed to pay the full penalty.of$14,165.00. lhave
considered the submitted representations and documentation, and I conclude that the proposed
settlement is appropriate under the criteria set forth in Section 1lO(i) of the Act. Accordingly,
the motion is GRANTED.

II. Citation Nos. 6269353. 2629358. 6269362. 6269366 and 6269370
According to Gust, he inspected five or six of the 46 PED receiving units. At each of the
units that he inspected, he followed six blast lines from the distribution panels to the blast sites.
where the blast lines ended. These lines extended more than one thousand feet. Gust observed ·
that there were not-any open safety·s witches in·any.ofthe blast lines between the distribution
panel, and the blast site.
Gust issued five separate citations for-five separate locations, alleging that there were not
any open safety switches or equivalent provided outside the blast area. ·The citations also allege
that galvanometer testing was·not being conducted on blast lines even though:they contacted
several sources of stray current. Each.citation alleges a violation of 30 CFR § 57.6403(b).
· . A. Section 57.6403Cbl -supra . . ·

·

Section 57 .6403(b), fil!l2m. provides as follows: "[a]t least one safety switch or equivalent
method of protection shall be located outside the blast area and shall be in ·t he open position until
persons are withdrawn.,, (Emphasis added.) Thus, the clear wording of Section 57.6403(b),
~requires: 1) either a safety switch or equivalent method of protection; 2) that it be located
outside the blast area; and 3) that it be in the open position until persons are withdrawn.
1. Outside the blasting area

It is the Secretary's position that the regulatory language mandating safety switches
"outside the blast area'', means that switches ·b e located outside"... yet close to, the boundary of
the blast area.'' (Secretary's brief, page 17) In·this connection, Gust opined that Section 57.6403
(b) supra, requires the location of switches outside the blast area, but near enough to the
boundary of a blast area, so that miners working in the blast area will have some awareness of

3

These four orders and two citations are located ili- Docket No. WEST 2003-196-Mi

4

This citation is located in Docket No. WEST 2003-371-M.

28 FMSHRC 117

what is going on between the switch and the blast site.
In further support of its interpretation, the Secretary cites the testimony of Gust, that the
trunk line extends over a thousand feet .from the PED distribution panel to the blast area and
touches various sources ofstray electricity. Gust opined that the presence of an open safety
switch outside, but near the blast area, would break the path of any stray electricity and prevent it
.from reaching the blast site and ·c ausing a premature blast.
The Secretary also argues that an open switch located outside, but close to the blast area,
would break an electric circuit, and prevent an unintended explosion.
The regulations do not contain any definition of the word "outside" as used in the phrase
"outside the blasting area". As set forth by the Commission in Island Creek Coal Co., 20
FMSHRC 14; 19 (Jan. 1998), "Jn the absence of an express definition or an indication that the
drafters intended a technical usage, the Commission has relied on the ordinary meaning .o f the .
word to·be construed. Peabody Coal Co., 18 FMSHRC 686, 690 (May, 1996), aff'd ll l F 3d
963 (D.C. Cir. 1997 (table))".
Random House Dictionazy of the-English Language Unabridged (2nd ed., 1966) defines
the word "outside", as pertinent, as follows: " ... 18. in or near an area that is removed .from -or
beyond a given place or region: The country.'s inhabitants seldom travel outside. - prep. ... 20.
beyond the confines or borders of; visitors .from outside the country."

Jn Webster's Third New International Dictionazy (l993) th~ word "outside" as used as a
preposition is defined, as pertinent, as follows:
- 1: on the outer side of <the American flag~ my building- ... 2 : beyond the
limits of <do little of their entertaining - .their homes - ... < reach - the
narrow intellectual boundaries jmposed by a restricted income in a little
village- ... < the law> 3: to the outside of <ran-the house> ...".
The word "outside" used as an adjective is defined in Webster's, rn as
pertinent, as follows: " ...2a: situated, belonging, or performed outside a
particular place, area, or enclosure...."

I find that these unabridged dictionaries of the English language,5 do not contain an
explicit definition ofoutside as meaning close to, in proximity, or near a designated area. Thus
the Secretary's position that Section 57.6403(b),. ~is violated if a safety switch is not in
5

1 take cognizance of the Secretary's citation of the Compact Edition of the Oxford
English Dictionazy, (1971), as providing one definition of"outside" as " ... [t]he position or
locality close to the outer side or surface of anything." (Secretary's brief, page 12) However, I
give more weight to the definitions found in unabridged dictionaries, as set forth above, as more
authoritative, rather than one contained in a compact edition.

28. FMSHRC 118

close proximity to the blasting area, is not clearly: supported by the common meaning of the term
"outside". I find that if the Secretary's interpretation. is upheld, the result would be an
amendment of Section 57.6403(b) by the addition of words requiring the location of a safety
switch to be outside but near or close to the blasting area.
As additional support for her argument, the Secretary cites the preamble.to the final rule
promulgated effective March 1991, amending Parts 56 and 57 of Title 30, Code ofFederal · .
Regulations. This preamble states, under the heading "sections 56/57 Branch Circuits", as
follows:
[P]ermanent blasting circuits are often used by more than one miner, particularly
in underground mines. The safety switch required in the standard is used to
protect individuals from unintentional voltage when another miner may be
energizing the circuit which could cause an unplanned ignition. This circuit issimilar to an electrical lock-out when working on an electrical circuit (56 Fed.
Reg. 2083 (Jan. 18, 1991)).
Thus, it is clear that the intent.ofSection·57.6403, filmm.. is.to protect miners from
unintended voltage when another miner may be energizing the circuit. There is nothing in the .
explicit language of the preamble regarding the location of such protection in relation to a blast
area i.e., that it must be near to or in close proximity to the latter. Thus, the s ·e cretary's ·
arguments are not clearly persuasive that her position is a-reasonable interpretation of Section
57.640-3(b), supra.
Moreover, even ifthe Secretary's interpretation may be permissible, it is not
determinative if Stillwater did not have·Iiotice of the Secretary's interpretation. As stated by the
Commission in Island Creek Company, 20 FMSHRC 14, 24 (January 1998):
Where an agency imposes a fine based on its interpretation, a separate inquiry may
arise concerning whether the respondent has received ''fair notice" of the
interpretation it was fined for violating. Energy West Mining Co., 17 FMSHRC
1313, 1317-18(August1995). "[D]ueprocess... prevents ... deference... from
validating the application of a regulation that fails to give fair warning of the
conduct that it prohibits or requires...'' Gates & Fox Co. V. OSHRC, 790 F. 2d
154, 156 (D.C. Cir. 1986). An agency's interpretation may be "permissible" but
nevertheless fail to provide the notice required under this principle of
administrative.law to support imposition of a civil sanction. General Electric, 53
F. 3d at 1333-34. The Commission has not required that the operator receive
actual notice of the Secretary' s interpretation. Instead, the Commission uses an ·
objective test, i.e., "whether a reasonably prudent person, familiar with-the mining
industry and the protective purpose of the standard would have recognized the
specific prohibition or requirement of the standard." Ideal Cement Co., 12
FMSHRC 2409, 2416 (November 1990)."
28 FMSHRC 119

The preamble, filllmh sets forth that the pwpose of Section 57.6403, filllmh is to protect
miners from unintended voltage when another miner may be energizing the circuit. As explained
further, (Il (A)(2)(3)), this purpose is achieved by a shunting method at the PED distribution
panel located outside the blast area. Additionally, the Secretary's interpretation that Section
6403(b), m
requires a safety switch to be placed outside, but close to. or near the blast area
goes beyond the ordinary meaning of the word "outside".
Moreover, the Secretary' s interpretation had not been set forth in any policy manual, nor
asserted by any of its representatives prior to the issuance of the citations herein. Lastly, as noted
above, there is not anything in the explieit wording of the preamble giving notice of the
Secretary' s interpretation. Therefore, for all of the above reasons, I reject the Secretary's
interpretation, and find it is not entitled to deference.
._

2. Safety switch or equivalent method of protection
All the blast lines cited were connected to PED distribution panels located outside the
blast area. fu nonnal operations unl~&s miners are checking.the blast lines for continuity or are
preparing to blast, the blast lines remain plugged into shunt rec.e ptacles on the right side of the
distribution panel. While in a shunt receptacle, the ends of the blast line remain shunted which
reduces the chance that unintended electric current can flow through the remaining·circuit. It is .
Stillwater's standard operating procedure that blast lines are not removed from the shunt
receptacles and inserted into the firing receptacles, on the left side of the PED unit, until all"
personnel are withdrawn, and the area is barricaded. When a blast line is placed into the firing
receptacle, the ends of the blast lines are unshunted, which allows,current to flow. Thus, in
essence, plugging a trunk-line into the left side of the PED unit incorporates that line into the
blast circuit allowing power to flow to the trunk line, to a one-use line, and then to a detonator,
which allows detonation to occur. On the other hand, when the trunk line is plugged into a plug
of the right side of the distribution panel, that line is isolated from the PED receiving unit, and
shunted. Accordingly, power will not flow down that line from the power source to a detonator.
The Secretary agrees that in the above operations the PED unit operates as a switch.
However, the Secretary argues that the plug receptacles cannot be considered to be a safety
switch providing the protection intended by Section 6403(b), supra.
...because their very design makes it likely that electric current will erroneously be
sent into the wrong blast line-and therefore to the wrong blast site. By having six
separate trunk lines starting from within inches of each other at plug receptacles in
the distribution panel, the .panels make it more likely, not less likely, that a miner
will mistakenly energize the wrong circuit and thereby "cause an unplanned
ignition." 56 Fed. Reg. at 2083. (Secretary's brief, page 17).

28 FMSHRC 120

Discussion
The term "safety switch" is defined in 30 CFR § 57.6000 as follows: "[a] switch that
provides shunt protection in blasting circuits between the blast site and the switch used to
connect a power source to the blasting circuit." The Secretary has conceded that the location
where the trunk line is plugged into the left side of the distribution panel constitutes·a switch
(Secretary' s brief, page 16). The parties have agreed that shunting means ''to connect the two
conductors by a short circuit. Shunting is a safety-related practice, because when ·a shunt is in
place, it reduces the chance .that unintended electric current can flow through the remaining ·
circuit." (Stipulation,~ page 7) The parties further stipulated that an example of a method
to create a shunt is"... when a trunk line is plugged into the right side of the distribution panel,
the trunk line at that location is shunted as a result of the design of the right plug receptacle.
Similarly, the PED receiver's output terminals are at times mechanically shunted (to each other)
inside the PED receiver unit." (id.)
Hence, based on the parties' stipulations, it is clear that the operation of the PED
distribution panel provides shunt protection in a blasting.circuit. Further, the operatiornofthe.
PED unit distribution panel is located between a computer controlled switch connecting the
power source to the blasting circuit, and the blast site: {Stipulation, page 5, 8). Thus, I find that
the method of plugging a trunk line into the right side.o fthe·distribution panel ·provides shunt
protection in the blasting circuit between"... the:blastsite and the switch used·to connect the
power 8ource to the blasting circuit. .." .6 (Section 57-.6000(a), supra). Accordingly, I find that: the
operation of the PED distribution panel shunting is, at a minimum, the equivalent of a safety
switch as defined in Section 57.6000, supra.

3. In the open position until penons are withdrawn
In the operation of the PED system, the blast lines remain plugged into the shunt
receptacles on the right side of the distribution board until miners are preparing to blast, all
personnel are withdrawn, and the area is barricaded. The .e nds of the blast ·lines Temain shunted
while :they are in the receptacles an the·right side of the panel, which reduces the chance that
unintended electric current can fl.ow through the remaining circuit. Accordingly, it would appear
that this procedure produces the same result as a switch being in an open position: ·
Therefore, for all of the above reasons, I find that the record establishes that shunting i.e.,
plugging the trunk line onto the right side of the PED distribution panel, is the equivalent of a
safety switch and that the shunting keeps the blasting circuits in the "open" position, not allowing
current to flow, until mines are withdrawn and blasting is to commence. Also, when shunting is
performed, the PED distribution panel is located outside the blast area. · I thus find that

6The parties stipulated that, as applied to the use of the receiving unit in the operation of
the PED system of blasting, the switch in the receiving unit is the switch"... used to connect a
power source to the blasting circuit.. .."(Section 57.6000, supra)..
28 FMSHRC 121

Stillwater's PED system was in compliance with Section 6403(b), supra. It is thus concluded
that it has not been established that Stillwater violated Section 6403(b), supra.

III. Citation No. 6269380
On October 6~ 2002 the stope at 35 e 6700 was to be blasted during the shift with a handheld blaster. The.miner.who was to blast at that site inadvertently unplugged·the wrong trunk
line from·the· PED distribution panel, and attached it to the blaster. When it was activated, it
detonated a round at stope 35 e 6400 instead. According to Gust, if a safety switch had been
located close to the blastsite at stope 35 e 6400, it could have been used to disconnect the blast
line from the power source, and the possibility of an accidental explosion would have been
eliminated.
._

Gust issued a citation alleging that " the branch circuits at the 35 e 6700 were not
equipped with safety.switches or equivalent methods to isolated the electric blasting circuits
(sic)." It is alleged that this condition constitutes a violation-of 30 CFR § 57.6403(a).
The Secretary.argues that the miners who ·had worked at stope 35 e 6400 a short time ·. · .
prior to the .detonation did not have the protection of a safety switch in their ,blast line. As
support for her position, the Secretary refers to the preamble, fil!lmb which states that~· "the,safety
switch required in the standard is used to protect individuals from unintentional·. voltage when
another miner may be energizing the circuit, which could cause and unplanned ignition.'~ 56 Fed.
Reg. 2083, supra In this connection, the Secretary argues that the incident on October 6; is the
same type of incident intended to be prevented according to the preamble, supra For the reasons
that follows, I find the Secretary's position te be without merit ·.
A. Discussion

Section 57.6403(a), ~provides that " [i]f electric blasting includes the use of branch
circuits, each branch shall be equipped with a safety switch or equivalent method to isolate the
circuits to be used. Thus, to prove a violation the Secretary must establish: I) that Stillwater's
blasting included the use of branch circuits and 2) that each branch had either.(a) a safety switch
or (b) an equivalent method to isolate the circuits to be used.

1. The PED blasting system includes the use of branch
circuits
Based on the Stipulation, supra, filed ·b y the parties subsequent to the hearing, I find that
in Stillwater's operation of the PED system, a blasting circuit is created when electricity flows
from the power source in the PED receiving unit to the distribution panel, through branch (trunk)
lines plugged into:the left side of·the distribution panel, through one-use lines to an electric
detonator and then returns via the same route to the power source. When trunk lines from
28 FMSHRC 122

additional blast lines are plugged into the left side of the distribution panel those branch circuits
(also consisting of trunk lines, one-use lines, and electric detonators) are incorporated into the
blasting circuit so that the resulting electrical circuit consists of one long continuous circuit. I
conclude that each branch line running from the PED panel to a detonator at the blasting site
constituted a branch circuit as it was incorporated into the larger PED blasting circuit.
2. Safety switch or eguivalent method to isolate the
circuits to be used
Stillwater was in compliance with Section 6403(a), ~ if the record establishes that
each branch circuit was equipped with either a safety switch or an equivalent method to isolate
the circuits to be used. There does not appear,to be any .dispute that each branch circuit running
from the PED panel to a detonator at the face constituted a separate circuit, ·a nd that each branch
line was not connected to any other branch circuit. Further, there was not any connection
between branch lines as.each one was plugged into a diffei:ent plug at the PED distribution panel.
There is not any evidence in the record as to the distance between :the plugs. Although a picture
of the panel (exhibit P-3) indicates that the plugs are in close proximity to one another, the record
does not indicate the scale of this picture, nor does the record indicate the dimensions of the .
panel. Further, unless and until the branch lines are to be connected to detonators at the face,
they are kept on the shunt side of the -p anel which has the effect of isolating them from other
branch circuits.
Within the above framework, I find that it·has not been established by.a preponderance of
evidence that Stillwater did not have an equivalent method to isolate the hranch,circuits7 i~e.,.to
set each one apart from the others (See, Webster's, r n definition of"isolate"). I therefore find
that it has not been established that Stillwater violated Section 6403(a), supra.
IV. Citation Nos. 6269361. 6269365. 6269369. 6269373 and 6269357
Gust issued five citations for :five8 PED locations, each one alleging a violation of 30
CFR § 57.6405(c), which provides as fQllows:· "[o]nlythe blaster shall have the key or other
control to an electrical firing device."
A. Violation of 30 CFR § S7.640S(c)

7

In on-shift blasting the blast line is connected to a hand-held firing device rather than the
PED system. As such, the circuit from the hand-held firing device to a detonator at the face is
not a "branch" circuit, because it is not connected to the PED system, and is not incorporated into
the PED blast circuit. Thus, I find that this circuit it is not within the purview Section 6403(a),
supra.
8

Each citation, as amended at the hearing, alleges:as follows: ''The key and/or other
control for the electrical firing device (PED)... was accessible to people other than the blaster."

28 FMSHRC 123

1. The "blaster" havini: control over the PED computer disc
Gust and Lobb, testified that on two occasions they observed the operation of the PED
system from the room on the surface where its computer was located. A door separated this room
from the room.where persons visiting the mine sign-in. The top portion of the door was usually
open and the bottom was usually closed. The disc that contained the various commands to be
sent from the·computer to the PED units underground was kept in a locked cabinet. However,
the key to open the cabinet was located either on a hook on a nearby wall, or in an adjacent desk
drawer. Gust concluded that the disc was accessible to persons other then the blaster.
Stillwater argues that since the computer disc sends commands to the PED units to "arm",
and "blast'', which result in the transmission of a signal to an electrical detonator to detonate, the
disc constitutes the control for the system's electrical ·firing device. In this connection,
Stillwater relies on the testimony of Thomas T. Eaton,9 that the Shift General Foreman who was
Stillwater's designated blaster, had sole possession of the only copy of the computer disc that
controlled detonation. of a blast. On the other hand, Gust and Lobb testified that they observed
that although the disc was locked in a cabinet, the key to the cabinet was either on a wall or in a
desk.
I do not place muoh weight on Eaton's'testimonyinasm.uch as the record·does not
establish that he had any personal knowledge of the PED operating procedures, and whether the
blaster had possession of the disc. I take cognizance of the fact that Stillwater did not have
anyone testify to contradict the testimony of Gust and Lobb as to what they observed, nor was
their testimony impeached. Also, significantly, Stillwater did not proffer the testimony of any
blaster who was responsible for inserting the disc into the computer. Nor did Stillwater impeach
or contradict the testimony of the inspectors.that on one occasion, in their presence, a person who
was operating the computer asked a woman in the office to give him the disc to be inserted into
the computer.
Section 6405(c},filllmb provides that "[o]nly the blaster shall have the key or control to an
electrical firing devices." Webster's Third New International Dictionary, filmDh de.fines "have"
as: la: "to hold in possession as property... b: to hold, keep, or retain esp. in one's use, syn ...
POSSESS... : HAVE is a very general term indicating any condition or action of control,
retaining, keeping...." Webster's, supra, defi.nes.'.' control" as pertinent as " .. .4(a)(l) to exercise
restraining or directing influence over... "
The computer disc containing the signals to the PED unit was kept in a locked cabinet in
the office of the individual responsible for operating the computer. However, the weight of
evidence establishes that persons other than the blaster could have obtained the key to ()pen the
locked cabinet containing the computer disc. Accordingly, the person responsible for sending·the

9

At the date of the trial he was the General Mine Foreman. In October 2002, he was a
Vision Mission and Value Supervisor.

28 FMSHRC 124

computer generated blasting signals to the PED units did not have control over the use of the
disc. Thus, he did not "have" the disc within the common meaning of that term.

2. The key to the PED receivin& unit as a control to an
electrical fuin& device
According to Gust and Lobb, a key or a portion of a key had been left in the PED
receiving unit at each of the five units that they examined. Gust concluded that the underground
blaster did not have the key to an electrical firing device in violation of Section 640S(c),supra.
Stillwater argues that the PED receiving unit "key" is not a control device for the system
because that function is performed by commands in the disc. Also, Stillwater makes reference to
the testimony of Mike Foletti that the PED unit located underground needs to be turned on by
inserting a key into a switch"... at which time two.things occur, the PED unit checks that.its
battery... is charged and... checks to see·that the unit is in reception of.the signal provided·bythe
radio communications system." (Tr. 14).10 It is thus argued by·Stillwater that the key is.not
capable ofinitiating or performing any other function and thus cannot be the control for the PED·
device.
.
In subsequent testimony as part ofStillwater's case, Folletti and Eaton elaborated on the
function of the key for the switch in the PED receiving unit. According to theirtestimony, which
was not impeached or contradicted, the PED receiving unit cannot receive the computer
generated "arm" and ''blast" signals unless.the PED. unit is turned:on by the key. Once the key is
turned on, and the·PED unit receives ablast signal~ power is then transmitted to all trunk lines
plugged into the:teft side of the.PED distribution panel, which in tum:transmits power to an
electric detonator causing detonation.
I find that inasmuch as the PED unit receives and transmits electrical signals, it is clearly
an electrical device. Further, since its function is to.receive "arm" :a nd '~last" sigiials, and
transmit them to detonators at various blasting areas, I find the unit is a firing device within the
scope of Section 6405(c), supra. Moreover, because the unit cannot operate to receive and in
effect transmit blast signals unless it has been turned on by its key, I find that the latter is a "key"
to an electrical firing device. Accordingly, I find that the PED receiving unit keys are within the
purview of Section 6405(c), supra.
The testimony of Lobb and Gust that a key or a portion of1he a key was in place in each
PED receiving unit at locations 32w 3900, 38w 7000, 40w 4100, 4lw 6700 and 29w FWL, was
not contracted or impeached. Accordingly, since these keys were-in the PED unit. ( ari electrical
firing device) I find that Stillwater was not in compliance with Section 6405(c), supra, which
requires that only the blaster "shall have the key"~ I thus find.that Stillwater did violate Section
56.6405(c), supra.

1

°Tue parties agreed to be bound by this testimony.
28 FMSHRC 125

3. Penalty
As set forth above, IV(A), infu!.. persons other than the blaster could have access to the
key to the cabinet containing the computer di8c used to transmit "arm" and "blast" signals to the
PED units. Accordingly, persons other then the blaster could have sent a signal to a PED unit
that was turned on, thus initiating a blast.

I find that the level of gravity was moderate. Considering the remaining factors set forth
in 110 (i) of the Act, I find that a penalty of $55 .00 is appropriate for each of these violations.
V. Citation No• 6269379
At approximately 2:00 p.m. on October 6, 2002 a miner intended to blast stope at 35 e
6700. He went to·the PED distribution panel, removed a blast line, and plugged it"-into a hand-·
held blasting device. According to MSHA Inspector, Gust, the device wasn' t sec~.wasn 't
locked, and"... was left in the open for anyone to use and anyone to blast on shift" (Tr. 265).
Gust issued a violation which alleged the following as a violation of Section 6405(c), ~
"persons other than the blaster had the control over the electrical firing device causing an
unplanned explosion of explosives in the 35 e 6400 stope."
There is not any indication in the record that Gust was present when this incident
occurred. Also, the record does not establish that Gust had any personal knowledge to support
his testimony that the blasting·device wasn't secured or locked, and was left in the open. Nor·
does the record indicate the foundation or basis for this.testimony. As such, it cannot be found to
be more than speculative, and clearly not of sufficient.probative value to establish that somec;>ne
other than the blaster had control over this device. I thus find that the Secretary has not
established a violation of Section 6405(c), supra.
VI. Citation Nos•.6269354 and 6269359
A. The Citations

According to Gust, when he inspected the area he described as 29w FWL, there were not
any blaster's galvanometers at either of the two blast headings. Also, there were not any
galvanometers at the 32w 3900 blast headings. Gust indicated that miners told him that "[t]hey
used the PED to test it after the circuit is altogether." (sic.) (Tr. 244)
According to Lobb, if a galvanometric test is not performed, the result could be a misfire,
causing injuries. Lobb indicated that a galvanometer checks for-continuity and increased
resistence " ... that could indi-cate that they have more detonators wired in the circuit ·than they
thought they did, or it could indicate that the circuit isn' t wired in a series the way they thought it
was." (Tr. 110)

28 FMSHRC 126

Gust issued two separate citations, one for 29w FWL and another for 32w 3900 alleging
violations of 30 CFR § 57 .6407(b)(2) in that "[p]roper testing with a galvanometer of the
"blasting lines" was not ~·conducted prior to the connection of the electric detonator... ."
30 CFR § 57.6407 provides as follows: '~A blasting galvanometer or other instrument
designed for testing blasting circuits in underground.operations shall be used to test the
following: "***(b) fu underground operations-... (2) C~mtinuity of blasting lines prior to the
connection of electric detonators."
The Secretary did not adduce the testimony of any miners regarding actions taken by
them, if any, to test for continuity of blasting lines prior to the connection of detonatop;. Instead,
the Secretary relies on the testimony of Lobb and Gust. The only testimony of Lobb regarding
his observations was that he found " ...two blasters' galvanometers in the whole mine, neither of
which had been used recently." (Tr. 104). Also, he indicated that he talked to two blasters who ·
were " ...wiring in rounds... hooking up and explosion'. ... And neither one was ·u sing a
galvanometer to do the required testing." (Tr. 104-105). According to Gust, at the 29w FWL
site,·~... [t]hey were drilling their·rounds and I came back later and they had just loaded the
rounds." (Tr. 244). Gust agreed, in·response to a leading question, that this operation includes
hook-up to the electric blasting system. Gust was asked what miners told him about the use of
the galvanometer and he testified as follows: "They used the PED to test it after the circuit is .
altogether.''(sic) (Tr. 244). He.was asked the basis for his knowledge as to what the miners did
relating to galvanometer testing .and he testified that a miner showed·him the proeess of tying a
round. His testimony is as follows:
·
··
... .[F]irst, what he showed me was the trunk line. In this case - in this,
case where he was at was shunted. He unshunted the trunk line - ***
So he would unshunt the trunk line, he would strip the one-use blast line,
touch the wires together, which would be a spontaneous shunt; and then he ties
each one leg wires to each one of the trunk leads, he spools out the one-use blast
line to the loaded round area, the blast area, the loaded round area. At that time he
would cut the one-use blast line, strip it, shunt that -- ***
Shunt the one-use blast line. He would unravel his one electric cap, because the ·
wires are taped or spooled together, so he untapes them and just straightens the
wire out on the cap. He takes -- there's a shunt on them. Take the shunt off, and
he would touch them together - this is a very experienced hand, good hand --crosses the wires. Then he would, with -t he cap away from the loaded round, ·he
would connect it to the trunk line, connect the cap - excuse me- to the one-use
line. And with·the point away from the face, in case·there was any stray current~
the cap would go off, which is still a hazard, but at least it's not tied to tlie full
round of explosives. Okay. And then once it's -- now we have our circuit all the ·
way back to the distribution panel. Then he's got this hand tying tq the det cord,
which ties in the whole round, and that's how he ties it in. No galvanometer was
used at any point there. (Tr. 247-249)

28 FMSHRC 127

I find that bis testimony is unclear as to whether he was testifying as to what he observed
the miner doing, or. as to what the miner told him regarding as to what he would usually do.
Eaton testified regarding Stillwater's PED blasting procedures. According to his
testimony, Stillwater' s operational procedures require that the ends of the blast lines at the
blasting area should be twisted together prior to loading the·explosives that will be detonated.
This procedure shunts the ends of the blast lines.11 The next step in the procedure is for a miner
to walk outby the drilled out face to the PED reception unit, and connect it to the PED
distribution panel. Next, the blast line for the area to be blasted is moved from the shunt (right)
side of the panel, and is plugged into the firing receptacle (left side of the panel). Once the blast
line is plugged into the firing receptacle, the built~in olnnmeter on the PED unit displays a
specific resistance reading that indicates whether the circuit is open or closed, i.e., whether there
is a continuous circuit in the blast line. Eaton' s testimony regarding Stillwater' s procedures·was
not impeached, nor was itexplicitly contradicted by Lobb or Gust.
It is the Secretary's interpretation that the requirement in Section 57.6407(b)(2), fil!IIDb·Of
continuity testing "prior to the connection·of electric detonators" requires ·such testing be
performed ·immediately before the electric detonator is connected to the blast line. The Secretary
argues that this interpretation must be deferred to as it " ... is consistent withsthe regulatory-text
and it advances the Mine Ac~' s goal of protecting the safety of mines." (Secretary's post-hearing
brief, at 27) . The Secretary also relies ·on testimony by Lobb, that it took him 15 to 20 minutes to
walk from the loaded round at the blast site to the PED receiving unit, and another 15 to 20
minutes to return. He indicated that "A lot can happen in a mine" during the twenty minutes it
takes to then return to the blast area after the miner test. for continuity using the ·P ED ohmmeter.
(Tr. 196)

B. Discussion
1 ~ Continuity testin& "prior to" the connection of detonators

Section 6407(b)(2), fil!lIDb provides that testing for continuity of blasting lines be made
'' ... prior to the connection of electric detonators." The word '1'rior" is defined in Webster. supra.
as follows:
IA: earlier in time or·order: preceding temporally, causally... ." The word
"preceding" is defined in Webster' s. supra, as pertinent as follows "1: that
precedes: going before .... " "Precede" is.defined in Webster' s, supr~ as
pertinent, as follows: "3: to... come before in arrangement or sequence. * ~ * 4 : to
go before in order of time: ... occur before with relation to something.

11

The parties stipulated that when a shunt is in place,"... it re4uces the chance that
unintended electric current can flow through the remaining circuit'', (Stipulation, page 7).
28 FMSHRC 128

The above definitions establish that the common meaning of the word prior refers to a
sequence or order of time. I thus find, based on the common meaning·ofthe word ''prior'' as
used in Section 6407(b)(2), ~that the act of testing of continuity of blasting lines must be
performed before the connection of electric detonators. There is not any requirement in Section
6407(b)(2), fil!lIDb that the act of testing be perfoniled immediately before the connection of
electric detonators. To add such a requirement would, in .effect, amend the regulations, and go
beyond the scope ·o f the common meaning of the term ''prior to". Thus, because the standard at
issue is unambiguous, the·Secretary's interpretation is rejected as not reasonable.

2. Blastine ealvanometer or other instrument desiened for
testine blastine circuits
Although a blasting galvanometer was not used by Stillwater to test for continuity of
blasting lines, the record fails to establish that such testing was not done by the use of-1he PED
receiving units' built-in ohmmeter as required by Stillwater' s procedures.
A Dictionary of.Mining. Mineral and Related Terms. (1968 edition (..DMMRT")) defines
an ohmmeter as "a type of galvanometer which directly indicates the number of ohms of the
resistence being measured." (Emphasis added). An ohmmeter-galvanometer is defined in the
DMMRT as "a special instrument for measuring the resistence of an electric blasting circuit"
The parties agreed to be bound by Foletti's testimony, that the PED unit's ohmmeter
contains an LCD display, which indicates· whether the blast.circuit is open or·closed. Hence, it
services the function of testing. whether there is a continuous circuit in the blast line which is part
of that circuit Thus, since the ohmmeter in the PED unit tests for continuity in the blast lines~ I
find it is within the purview of Section 6407(b)(2), supra. as it is either considered a "blasting
galvanometer or other instrument designed for testing blasting' circuits" and is "used to- test ...
continuity of blasting lines". The Secretary has not adduced any evidence that; when cited
Stillwater, was not following its procedures to use the ohmmeter on the PED unit to test for
circuit continuity prior to the .connection of. electric detonators. Hence, I find that the·Secretary
has not established that there was·not.such testing for continuity ofblasting•lines, prior to the
connection of electric detonators. Therefore; I :find,fuat the Secretary has failed to establish a
violation of Section 6407, supra.

VIl. Citations Nos. 6269381 and 6269382
On October 6, 2002 the 35 e 6700 stope was to be blasted during the·night shift, and the
35 e .6400 stope was to be blasted at the end of the shift at approximately 5:00 a.m. Both of the
stopes had already been drilled, loaded and barricaded by 2: 10 a.m. As part of the blasting
sequence, a miner intended to remove a blast line from a PED.distribution and attach it to a hand-·
held electric firing device . ·By mistake, he unplugged the blast line.leading to stope 35 e 6400,
rather than the one leading to stope 35 e 6700. As a result, when he attached this line to the
hand-held detonator and activated it, stope 35 e 6400 detonated. According to Brent LaMoure,

28 FMSHRC 129

Chief Engineer at Stillwater, the miner contacted his supervisor, and the latter began an
investigation. This testimony was not impeached or contradicted.

On October 27, 2002, subsequent to an investigation, Gust issued two citations. Citation
No. 6269381 alleges a violation of 30 CFR § 50.10 which, as pertinent states, as follows: "[i]f an
accident occurs, an operator shall immediately contact the MSHAdistrict office having
jurisdiction over its mine .... ." (emphasis added) Section 50.10, ~goes on to provide that if
the operator cannot contact the district office, it shall "immediately'' contact MSHA ·headquarters
in Arlington, Virginia by telephone.
Citation No. 6269382 alleges a violation of 30 CFR § 50.20 (a) which, provides, in
essence, that the principal officer in charge of health and safety or supervisor of the mine area at
a mine in which "an accident" occurs shall mail an accident report, Form 7000-1, to MSHA
within ten working days after the accident occurred.
·According to Gust, when he issued these citations, the accident report had not been filed,
and Stillwater had not immediately notified MSHA after the detonation at stope 35 ·e 6400 on
October 6, 2002.

A. The detonation at stope 35 e 6400 was an "accident~
The recording requirements imposed by Sections 50.10·and 50.20-(a), ·fil!lmh are required
if"an accident" occurs. Section 50.2(h)(7) defines the word "accident" when-used in part 50 of
the Code ofFederalRegulations,.relatingto notification:and accident reports, as·follows: "***(7)
an unplanned ignition or explosion of a blasting agent or an explosive[.]"
Thus, the initial inquiry herein is whether the.explosion at stope 35 e 6400 was an
accident, which in tum depends .upon·whether it was an ''unplanned" explosion. The regulations
do not define the word uoplanned. Accordingly, reliance is placed on the common meaning of
that word. Webster's ~ as pertinent, defines the word ''unplanned" as 1: not-planned, ... 2:
unexpected." Planned is defined in Webster's~ as pertinent, as 1: INTENDED,
PROJECTED... 2a: designed or carried out according to a plan: ORDERLY." The word
"unexpected", is defined in Webster's, supra. as not expected: UNLOOKED-FOR
UNFORESEEN SURPRISING".
Applying the above common meanings it is clear that an event is unplanned if its
occurrence is not expected, or intended according to a plan. The record establishes that
detonation at 35 e 6400 was planned for the end of the shift, at approximately 5 :00 a.m. Hence, I
find that its detonation by mistake at 2: 10 a.m., was clearly .unexpected and unintended, at that
time. Thus, the.detonation was an w:mlanned.ignition as that term is commonly understood.
Accordingly, the ignition by mistake at 35 e 6400 is within the scope of the term "acCident".
Hence, the reporting requirements of Sections 50.10, filmm. and 50.20(a); .filllmh are applicable.

28 FMSHRC 130

1. Citation ·No. 6269381
As set forth above, VII (A), ~the detonation at 35 e 6400 at 2: 10 a.m., on October 6,
by mistake was an accident. The detonation was not immediately reported by Stillwater to
MSHA as required by Section 50.l 0, supra.. Accordingly, I find that Stillwater violated Section
50.10 supra.
The Secretary argues that the violation herein was the result of Stillwaters high
negligence. .In this connection, the Secretary alleges that the requirements of Part 50 were
explained to Stillwater on many occasions, citing the testimony ofGust·as follows:

Q. However, you did mark it as high negligence. Could you explain why.
A. Because this was a violation of Part· 50, and the mine has had Part 50
audits in the past and been through the Part 50 audit process. If there was
any doubt in the operator's mind ·of.knowing .Part 50, those questions are
answered during these audits. · And off ofrecollection there was a minimal
of two Part 50 audits prior to this miscellaneous inspection,. and this
information ofPart 50 has been explained to the company several times.
Q. Okay.
ADMINISTRATIVE LAW JUDGE: Were you involved in any of those
explanations?
TIIE WITNESS: I was not in the Part 50 audits, no, but I have privy·to
that information.in our files at the district office and at-the field·office.
ADMINISTRATIVE LAW JUDGE: You mentioned two things. The
company·had an audit two .t imes; and you've indicated that you were not
involved ·i n that audit. Were you involved in any of the explanations to the
company?
THE WITNESS: The explanations, no, just the review ADMINISTRATIVE LAW JUDGE: Okay. You answered the question.
Sir. The explanation to the company, explanations prior to the time you
issued the what at that time was an·. audit?
THE WITNESS:· To--whatwas:tbat? .
ADMINISTRATIVE LAW JUDGE: ·I asked you whether you were
involved in any explanations to the company about their obligations under
the reporting obligations, and you did not. I want to clarify, that my
question went.to the period prior to the time that you served the company
with the petition, Exhibit P-14, 62:69381.
THE WITNESS: Okay. Prior to, what I explained is on the Part 50 audit.
ADMINISTRATIVE LAW JUDGE: That's on the ·s ame day.
THE WITNESS: What's that?
ADMINISTRATIVE LAW JUDGE: No, did you explain to the company
any of their obligations -THE WITNESS: On the reporting of this incident?
28 FMSHRC 131

ADMINISTRATIVE LAW JUDGE: Prior to the time you issued the
citation, did you -THE WITNESS: Prior to. In all the -- and I don't know the nwnber of
regular inspections that I inspected Stillwater.Mine. I do review their Part .
50. It's not actually an audit, but I do review the Part 50 and I do explain
everything that I'm reviewing when I go through that Part 50, and that
would be regular inspections prior to this incident. But the Part 50 audits,
no.
ADMINISTRATIVE LAW JUDGE: No, no,.how many such inspections
did you have prior to.October 27, 2002, when you explained to the
company Part 50?
THE WITNESS: I would have to take approximate guess on that because
it's been a considerable amount of time now. Probably four regular
inspections.
***Q. (By Ms. Larkin:) Let me ask you based on your reviews at the end
of each inspection, did you ever review 50.2(h)(7) with representatives of
the Stillwater Mine?
A. (h)(7)? Not that I recall at·this time. (Tr. 237-240, 328).

I find that Gust's testimony at best confusing and not consistent. I find therefore, that it
does not establish that the mecific reporting requirements of Section 50~ 10 and 50.20(a) were
explained to Stillwater on many occasions.
The Secretary also alleges that Stillwater repeatedly received citations for the same
reporting requirements at issue. In this connection, the assessed violation history report for the
period from September 4, 1996 through December 31 , 1999 indicates that Stillwater was cited
for six violations of Section 50.20(a), ~all relating to an incident that occurred on the same
day. 12 Only one citation was issued for allegedly violating Section 57.10, supra.
On the other hand, Stillwater' s management testified in essence, as to a good faith belief
that the explosion herein at issue did not fall within the pwview of Section 50.10, ~as it was
not an accident, i.e. an unplanned explosion, inasmuch as the company intended to detonate a
round at that stope later on at the end of the.shift.
Within the context of the above evidence, I find that Stillwater's negligence was
moderate. Taking into account the history of violations as set forth on exhibit P-1, the good faith
abatement of the citation at issue, as well .as the lack of any evidence of other factors set forth in
Section 110 (i) of the Act that would either cause a penalty to be mitigated or increased, I find
that a penalty of $55.00 is appropriate for this violation.

12

March 11, 2002.
28 FMSHRC 132

2. Citation .No. 6269382
For the reasons set forth above, VTI(A), i.nfub I find that the detonation at 35 e 6400 on
October 6, was an accident. On October 27, 2003, when Stillwater was cited, it had not filed an
accident report to MSHA as required by Section 50.20(a), supra. Accordingly, I fiii.4 that
Stillwater did violate Section 50.20(a), supra.
The analysis of the penalty factors for this violation is essentially the same as·that set
forth with regard to Citation No. 6269381 and VIl(A)(l), ~and is incorporated herein. For
the reasons set forth above (id.) I find that a penalty of $55.00 is appropriate for this violation.

ORDER
It is ORDERED that Respondent pay a total civil penalty of $14,550.00 within 30 days
of this decision. It is further ORDERED that the following citations and orders are
DISMISSED: 6269353, 6269358, 6269362-, 6269366, 6269370, 6269380,. 6269379,- 6269354
and 6269359.

W,.

L__,

·.~eisberger

Administrative Law Judge
202-434-9964

Distribution List: (Certified Mail)
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550
Katherine Lawkin, Esq., Jackson & Kelly, PLLC, 1099 18th Street, Suite 2150, Denver, CO
80202
.

/Ip

.

28 FMSHRC 133

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601New Jersey Ave., N.W., Suite 9500
Washington, DC 20001-2021

March 9, 2006

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

CIVIL PENALTY PROCEEDING
Docket No. SE 2005-51
. A.C. No. 01-01401-44081

v.
JIM WALTERS RESOURCES, INC.,
Respondent.

No. 7Mine

._

DECISION
Appearances: Dana L. Ferguson, Esq., U.S. Department of Labor, Office of the Solicitor,
Atlanta, GA for the Secretary;
David Smith, Esq., and John B. Holmes, ill, Esq., Birmingham, AL, Maynard,
Cooper & Bale P.C., for the Respondent
Before:

Judge Weisberger

This case is before me based upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor ("Secretary") alleging that Jim Walter Resources ("Jim Walter") violated 30
CFR Section 75.l 725(c). A trial was held in Birmingham, Alabama on September 27-28, 2005.
Subsequent to the trial, the parties filed Proposed Findings of Fact and a Brief, along with
Objections and Replies thereto.

Introduction

Jim Walter operates the No. 7 Mine, an underground coal mine. Coal is conveyed from
the working faces to the dumping point outside the mine via electrically operated conveyor belt
systems. Coal that is conveyed on the North Main belt goes through a chute at the outby end of
the belt where it falls onto the West A belt, and is then conveyed outby to the surface of the mine.
Various remote switches control the flow of electricity to these belts 1•

1

A signal sent from switch (button), B-1 or B-2 (identified in JWR-1 ), removes the power
from the North Main belt. Similarly, power is removed from the West A belt via either buttons
R- 1, R-2, R-3, R-4, R-5, R-6 or R-7 as identified on JWR-1.
28 FMSHRC 134

On April 22, 2004 Gary Keeton was employed by the No. 7 Mine as a general inside
laborer on the evening shift. On April 22, 2004, Keeton's normal work area included the West A
belt and North Main belt head roller. His normal duties included cleaning of coal spillage along
the West A belt and North Main belt head roller, and clearing any obstruction from the North
Main belt head roller chute at the West A belt.
On April 22, 2004, Keeton was performing his normal duties at his normal work area on
the evening shift, and was fatally injured. The last person known to have seen and talked to
Keeton was Carlos M. Maynor. At approximately 10:35 p.m., Maynor observed Keeton washing
the discharge chute with water at the West A belt head roller.
A television camera that was located underground transmitted pictures of the area in
question to a screen and located in an office on the surface. At appr9ximately 10:57 p.-m., an
individual who was in the office looked at the screen and observed "boots ... that were junked up
or got on the, in front of the Discharge Chute, the North Main Discharge Chute on the apron or
East Catwalk." (sic) (Tr. 212)

On April 22,.2004 from 10:57:22 p.m . to 11 :26 p.m., electric power to the North Main
belt was turned off via a remote switch. The computer log, which is the source for these times,
based this time record on a signal that was from either switch B-1 or B-2 as·identified on JWR-1.
The computer log does not distinguish between or identify which one·of these two buttons was
pressed or pulled.
On April 22, 2004 from 10:57:38 pm. to 10:58:10 p.m., electric power to the West A belt
was turned off via a remote switch. The computer log,·which is the source for these times, based
this time record on a signal from either switch R-1 , R-2, R-3, R-4, R-5, R-6 or R-7 as identified
on JWR-1. The computer log·does not distinguish .between or identify which one·ofthese
buttons was pressed or pulled.
Ned Jackson Martin worked on the owl shift as an inside laborer performing·the same
duties and at the same site assigned to Keeton the previous shift. When he·arrived at the site in·
question at the beginning of the owl shift, the West A belt was running, but the North belt was
off. When Martin noticed that the North Main ·belt was not moving, he looked up into the chute
and observed a rock " ... at the top of it ... [y]ou could just barely see it."{Tr. 159) He did not
attempt to dislodge it. He stated that the rock was about three to four inches thick and that the
edge"... looked like it' d been - it was kind of rounded off." (sic) (Tr. 160). Martin described the
rock in the chute as " ...white looking... [s ]hiny... [and·that] it kind of had a glossy looking. It did
have a like it'd been beat up." (sic) (Tr. 159-60) Later that-shift after he had turned power on to ·
the North Main belt, he noted that the rock was no longer there.
According to Martin, it is not unusual for material to clog the chutes, and the North Main
chute becomes clogged more often then the West A chute.
··

28 FMSHRC 135

At approximately, 4:00 a.m., Keeton's ·body was found on the surface in a pile of rocks
that had been scooped out of a rock pile.2 Additionally, a slate bar3 was found on the surface in
the structure of the preparation plant " ... in the duct work between the skip dumping area at the
top of the production shaft and the rotary breaker." (Tr. 31) The location of the slate bar was not
at the recovery site where Keeton's body had been found. On April 23, a ladder was found in the
underground area at issue.
Subsequent to an investigation, the MSHA Inspector, Harry Wilcox -issued a citation
alleging a violation of30 CFR Sectien 75.1725(c) in that"... maintenance was being conducted
on April 22, 2004 between 10:57 p.m. and 11:15 p.m. at the North Main Belt Header and West
"A" belt conveyor without removing power and blocking the West "A" belt from motion...."

I. Further Findines and Discussion
Section 75.l 725(c), fil!1IDb provides as follows: ''Repairs ·or maintenance shall not be
performed on machinery until the power is off and the machinery is blocked against motion ... ."
Respondent argues that the Secretary has not established by a preponderance of.the
evidence that it violated Section 1725(c), supra.. Specifically, Respondent cites the lack of any
witnesses as to Keeton' s location during·the time in question, and his activities at that time. ·Thus
it is argued that there are not witnesses to establish that he was performing maintenance at the
cited location during the cited time period. In this connectio~ Respondent refers to the parties'
stipulation that there is not any photographic or videotape evidence that Keeton was involved in
maintenance work when he contacted the belt. Also, that'it is not known if there was any
material jamming the chute when Keeton contacted .the. belt.
In essence, it is the Secretary' s position that on April 22, 2004, between 10:57 p.m. and
11:15 p.m., Keeton was performing maintenance at the North Main belt header and the West A
belt conveyor when the belts were not de-energized, and the West A belt was not blocked against
a motion. These inferences are based on the following facts stipulated to by the parties or
testified to by the Secretary' s witnesses:
(1) On April 23, Keeton was the only miner.on the evening shift assigned to the North
and West Main belts. Among his duties was the clearing of any obstruction from the North Main

2

These rocks had originally been deposited at a bunker where coal from the mine
underground is deposited, adjacent to the Prep Plant. AcGording to John Aldrich, Safety Director
at the mine, these .rocks " ... came from the preparation plant" and were conveyed on a belt that
" ...went over the radial stacker ...". (Tr. 251)
3

This item also is referred to in the transcript by the following terms: bar, steel bar, drill
steel bar, and long bar.
28 FMSHRC 136

belt head roller chute at the West Main belt;
(2) According to Martin's testimony a chute can become clogged. The North Main chute
in relation to the West A chute becomes clogged more frequently than the West A chute;
(3) According to Martin on April 23, when he arrived at the North Main chute at the
beginning of the owl shift, the North Main belt was not running, and he observed a rock on top of
the chute. He described the rock as about ·three inches thick. He said that a portion of the rock,
about the size of a dollar bill, .was shiny and was "[k]ind·of unusual" as it was."smooth [and] ...
kind of rounded off." (Tr. 160) He also indicated .t hat "[i]t did have a like it'd been beat up"
(sic.) (Tr; 160);
(4) Martin indicated that one way of removing a rock that is obstructing a chute is to use a
steel bar to pry it loose;
·-

(5) Aldrich indicated that on April 23, around the time that Keeton's body was found on
the surface, a slate bar, that was recognized by Martin as similar to the one.used by him.to pry
rocks loose from the chute, was also found on the surface;4.
(6) Martin testified that although miners are not allowed to climb on a belt.to cleara
chute, one of the ways he has used a bar to dislodge a rock from a chute, is to get on the West
Main belt and attempt to pry the rock loose from- belo:w while $1:anding on the belt;

(7) In the course of the investigation by MSHA Inspectors, it was determined that on the
night shift on April 23, a television camera monitoring the underground area in.question
transmitted pictures to a screen located ·in an office above ground.. At approximately 10:57 p.m.,
an individual who was in the office where the screen was located indicated he saw boots on a ·
catwalk in front of the North Main chute. Further, on April 23, a ladder was found in the cited
area; .
(8) On April 23, starting at 10:57:38 p.m., power was turned offthe North Main belt for
approximately a half hour; for approximately thirty seconds during that time period, power was
turned off at the West A belt; and
(9) At approximately 4:23 a.m., on April 24, Keeton's body was found on the surface in a
pile of rocks that had been conveyed from the underground out of the mine.
Respondent attempts to rebut the Secretary's inferences by referring to the lack of any
physical evidence that, during the time in question, Keeton was engaged in removing a-rock from

"The slate bar was not found at the recovery site; it was found in the structure of the
preparation plant. According to Aldrich, Keeton "s body was found amidst a pile of rocks that
had originated underground and were conveyed out of the mine via the preparation plant.
28 FMSHRC 137

the North Main chute. Respondent also cites Martin, s testimony that on April 22, when he
arrived at the area in question, there was not any ''mess,,. (Tr. 163) Respondent argues that the
lack of a "mess", would indicate that there was not a blockage of the chute on the prior shift, as it
would have caused spillage of material from the North Main belt that feeds onto the chute:
As additional rebuttal of the Secretary's case, Respondent refers to Martin's testimony
relating to the rock he observed in the chute at the start of the owl shift. Respondent notes that
Martin offered various explanation as to the possible cause of the rock's unusual shiny, "beat up"
condition, but did not indicate-it might have resulted from having been pried by a bar.
Respondent further argues, in essence, that it is ·not likely that the rock had become lodged in the
chute during Keeton's shift as Martin. Later on in the owl shift, after power had been restored to
the North Main belt, Martin noticed that the rock was no longer in the chute. Thus, it is argued
that it had not been clogging the chute on the evening shift, as it apparently fell out of the chute
once power was restored.

Respondent also refers to the 'fact that although a steel bar was found on the swface, there
was not any evidence tending to establish·that this bar had been used by Kee.ton. Moreover, ·
although a ladder was found in the cited area, Respondent relies on the testimony of Aldrich, that
he attempted to climb it and experienced difficulties in positioning himself into the 30-inch space
between the top ·of the ladder and the roof.
At best, the factors cited by Respondent might tend to weaken the logical nexus between
certain individual facts and inferences the Secretary wishes to be drawn from these facts.
However, it is critical to consider the existerice of the combination of all the facts·relied on by the
Secretary. Thus, lnote that the record establishes the following: (-a) it is not uncommon for rocks
to clog the North Main chute; (b) a rock that appeared.shiny and··b eat.up was observed at the start
of the owl shift, before power had been restored to the·North Main belt, (c) power had·been shut
off from the North and West Main belts at approximately 10:57·pm, April 23; (d) at about the
same time the boots of a miner were observed standing on a catwalk in front of the North Main
chute; (e) that a steel bar is used to pry rocks that become lodged in a chute; and ( t) that a steel
bar was found on the surface on April 24, at about the same time as ·Keeton's body was found.
Based on the existence of all these facts, I find that it is reasonable to infer that during the
evening shift, at about 10:57 pm, a miner turned off electric power to the belts in question and
then started to use a steel bar to remove a rock or rocks that was/were stuck in the North Main
chute. (See. Garden Creek Pocahontas Co. 11 FMSHRC 2148, 2152-53, (1989) citing MidContinental Resources 6 FMSHRC 1132, 1148 (1984). Further, since Keeton was the only
miner assigned to work in the area and his duties included clearing obstructions from this chute,
it is reasonable to infer that Keeton was the miner performing this task dliring the time in
question. (id) I thus find that the factors relied upon by Respondent.. are insufficient to rebut the
inferences drawn from the Secretary's case-in-chief
Moreover, Respondent has not set forth any plausible theory based upon any facts in the
28 FMSHRC 138

record to support a reasonable inference that Keeton was not involved in clearing the chute
during the time period in question. Respondent argues that there is not any evidence that Keeton
had previously climbed up on a catwalk to dislodge a rock stuck in a chute. Respondent also
relies on statements given to the Inspectors that, in general, Keeton was considered a safe worker.
Also, Respondent refers to the testimony of Byram, wherein he answered in the affirmative in ·
response to leading questions from counsel as to whether Keeton "had previous slip-and-fall .
accidents that resulted in minor injuries." (Tr. 306) Additionally, Respondent cites the presence
of orphenadrine in Keeton's .blood stream at the·time an autopsy was performed. However, the
record does not contain any evidence of the medical effects of the medication found in his blood
stream, its quantity, or the length of time it had been in his blood stream prior to the autopsy.
I find that the arguments and evidence relied on by Respondent to be too speculative to
support any reasonable inference that Keeton fell on the belt but not while engaged in clearing
the chute.
· Thus, for all of the above reasons I find that the Secretary has established by a
preponderance of evidence, based on reasonable inferences of a combination of facts, that, at' the
time in question Keeton was engaged·in attempting to move a rock or rocks that was/were-lodged
inside the North Main chute. Also, although power has been removed from the.North Main belt,
by way ofa remote control button and power had been removed from the West Main belt by way
of a remote control button for ten seconds, power was then returned to the West Main belt which
was in motion during the time period in question.5 Thus, it is further concluded that since·the
West Main belt was in motion, it had not been blocked against hazards.

II. Further Discussion
Respondent ai;gues, in·essence, that even if it be found that Keeton was engaged in
attempting to remove a rock from the chute, this work does not constitute ''maintenance" and.:
therefore Sections 1725(c), supra, is not applicable.
In Walker Stone Co., 19 FMSHRC 48 (1997) ("Walker Stone I") the operator was cited·
for having violated Section 56.14105, which in all material aspects is identical to the language in
Section 1725(c), supra. In Walker Stone I, rn a rock had become lodged inside a crusher
which stalled the drive motor rendering the crusher inoperable until the rock was removed. The
issue before the Commission was whether in these circumstances the removal of the rock
constituted maintenance of the crusher to fall within the scope of the cited mandatory standard.
The Commission, 19 FMSHRC, supra, at 51 relied on Webster 's Third New International
Dictionary Unabridged, 1362 (1986), which defined the term ''maintenance" as "the labor of
keeping something (as buildings or equipment) in a state of repair or-efficiency: care, upkeep..."

5

The parties stipulated that these remote controlled buttons where functioning normally,
did not have any defects, and that it is unexplained as to why and- how power was restored to the
West Main belt during the period in question.
28 FMSHRC 139

and "[p]roper care, repair, and keeping in good order." (See Walker Stone,~ at 51) The
Commission also cited A Dictionary ofMining Common Mineral, and Related Terms, 675
(1968). In holding that the activities at issue constituted ''maintenance" the Commission noted
that the obstructing rock caused the crusher to .become inoperable until the rock was removed and
that the purpose of dislodging the rock was to unclog the malfunctioning crusher and restore it to
functioning condition. The Commission held that "[t)he removal of rock was necessary to
restore [the crusher] to a sound state or keep [it] in a state of repair or efficiency." (Walker Stone
I,.~ at 51) The Commission went on to hold as follows: "[i]n our view, the removal of rock
to restore the crusher to.working condition is.clearly covered by the broad phase 'repairs·or'
maintenance of machinery or equipment', and, therefore, the standard adequately·expresses the
Secretary' s intention to reach the activity to which he applied it." (id.) Upon appeal, Walker
Stone Co., v. Secretary ofLabor, 156 F 3"1, 1076 (10th Circuit, 1998), ("Walker Stone II') the
Court of Appeals found the standard at issue therein to. be ambiguous, deferred to the
Commission' s interpretatio~ and affirmed the Commission's decision.
Respondent argues, based on the testimony·of~ that when he observed the rock in
the chute he did not attempt to remove it; ·that when the North Main belt was turned on in the owl
shift, there was not any evidence that it was blocked and was·not functioning normally, and that,
the rock in question fell out on its own after the belts had started up. Respondent also refers ·to
the testimony ofMartin that there was not any mess in the area when he arrived at the beginning
of the owl shift.. Respondent argues that this would indicate the lack of spillage caused by any
blockage.
As set forth above, I infra, the facts in the case at bar establish, by way of inferences, that
the chute had ceased to function because of the presence of a rock or rocks, and that their
removal of these obstructions was necessary to unclog the chute (c.f., Walker Stone I, supra, at
52). Thus, their removal falls within the meaning of maintenance.as set forth in Walker I and II,
supra.

Therefore, for all the above reasons I find that it has been established that Respondent
violated Section 1725(c), supra.

III. Sipificant and Substantial
A" significant and substantial" violation is described in section 104(d)(l) of the Mine
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal of other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation.is
properly designated significant and substantial ·"if, based upon the particular facts surrounding
the violation there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonable serious nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), the Commission explained its
28 FMSHRC 140

interpretation of the term "significant and substantial" as follows:

In order to establish that a violation of a mandatory safety standard is
significant and substantial.under National Gypsum the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985), the
Commission stated further as follows:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984); We.have emphasized that, in accordance
with the language of section I 04(d)(l ), .it is the contribution of a violation to the
cause and effect of a hazard that inust be sigru:ficant and substantial. U. S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75(July1984).

As set forth above it has been found that the Respondent violated Section 1725(c), wrn,
and that this violation contributed to a discrete safety hazard i.e. a miner coming in contact with a
moving belt. Further, since the hazard herein did result in a fatality, it is clear that the third
factor set forth in Mathies, wrn, the reasonable likelihood that the hazard will result in injury,
and the fourth factor, a reasonable likelihood that the injury will be serious, has been met. For
these reasons I find that it has been established that the violation was significant and substantial.

IV. Penalty
The parties stipulated that a penalty will not impair Respondents ability to remain in
business and that Respondent demonstrated good faith abatement.
The level of Respondent's negligence is to be mitigated because Respondent provided a
camera at the area in question which transmitted the use of that area to the control room on the
surface. Further, it was Respondent's policy for miners to call a control room supervisor before
shutting down the belts. The record indicates that Keeton was an experienced worker, ·and was
considered to be a safeworker. Respondent seeks to further mitigate the level of negligence by
arguing that it ''very deliberately trained its miners" not to straddle a·moving belt while
attempting to dislodge a rock from a chute. (Respondent's Reply to Petitioner's Post Trial Brief,
at 20) However, there is not any evidence in the record to indicate specifically that Keeton
received this training. For all these reasons I find that the level of the Respondent's negligence

28 FMSHRC 141

was moderate.
Because the violation herein resulted in a fatality, I find that the lev~l of gravity of the
violation was high. The record does not establish any bases for increasing or decreasing a
penalty based on the remaining factors set forth in Section 110 (i) of the Act. Ther~fore, in
evaluating the factors set forth in· Section 110 (i) of the Act and placing the most weight on the
high level of ~avity which resulted in a fatality, I find that a penalty of $32,500 is appropriate for
this violation.
ORDER
It is ORDERED that the Respondent pay a civil penalty of $32,500, within 30 days of
this decision.

· /fl~
~eisberger

. Administrative Law Judge

Distribution:
Dana Ferguson, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W.,
Room 7Tl 0, Atlanta, GA 30303
David Smith, Esq., and John.B. Holmes, ill, Esq., Maynard, Cooper & Gale, P.C., 1901 6th
Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203
/Ip

28 FMSHRC 142

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, D.C. 20001-2021

. March 15, 2006
HIBBING TACONITE COMPANY,
Contestant

·coNTESTPROCEEDINGS
Docket No. LAKE 2005-50-RM
· Citation No. 6159916; 12/ 15/2004

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

Docket No. LAKE 2005-51-RM
Citation No. 61599.17; 12/15/2004
Docket No. LAKE 2005-52-RM
Citation No. 6159918; 12/15/20M
'Docket No. LAKE 2005-53-RM
Citation no'. 6159~19; 12/15/2004
Hibbing :Mme
Mine ID: 21-01600

DECISION
Appearances:

Christine M. Kassak Smith, Esq.; Wayne Lundquist, CLR,
U.S. Department of Labor, Chicago, Illinois, on behalf of the Respondent;
R. Henry Moore, Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, on
behalf of the Contestant

Before:

Judge Barbour

In these contest proceedings, brought pursuant to section l05(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d) (the "Mine Act" or "Act"), Hibbing Taconite
Company ("Hibbing" or "the company'') challenges the validity of three citations issued on
December 15, 2004, at its Hibbing Mine. 1 The citations allege violations of30 C.F.R. §50.20(a),
a mandatory standard requiring reporting to the Secretary's Mip.e Safety and Health

Initially, the company challenged a.fourth citation (Docket No. Lake 2005-50RM), but at the hearing Hibbing withdrew the contest. Tr. 13; see also Jnt. Exh. 7 at 2. I will
dismiss Docket No. LAKE 2005-50-RM at the close of this decision.
28 FMSHRC 143

Administration (''MSHA'') any mine-sited accident, occupational injury or occupational illness.2
The citations charge the company violated the standard when it failed to complete and submit
Forms 7000-1 for three injury-causing incicients ~t occurred at the mine.3 The company asserts
the citations do not set forth violations of section 50.20(a). The Secretary, on behalf ofMSHA,
responds that the citations were properly issued. A hearing was conducted in Duluth, Minnesota,
at which both parties offered testimony and documentary evidence. Both also submitted briefs.
At the beginning of the hearing counses sumarized their positions. Counsel for the
company acknowledged the three incidents resulted in injuries, but maintained the injuries were
the results of"long-standing [physical] problems[,]" problems the company "treated as

2

In pertinent part section 50.20(a) states:
._

Each operator shall maintain at the mine office
a supply of MSHA Mine Accident, Injury, and
Illness Report Form 7000-1 . . . . Each operator
shall report each accident, occupational injury,
or occupational illness at the mine. The principal
officer in charge of health and safety at the mine
or the supervisor of the mine area in which an
accident or occupati_o nal injury occurs, or an
occupational illness may have originated, shall
complete or review the form in accordance
with the instructions and criteria in §§ 50.20-1
through 50.20-7.... The operator shall mail
completed forms to MSHA within ten working
days after an accident or an occupational injury
occurs or an occupational illness is diagnosed.
3

Citation No. 6159917 (Docket No. Lake 2005-51-RM) involves an April 27, 2004
incident that occurred to miner Don Classen. Exh. G-2. (Although the citation gives April 29 as
the incident date, Inspector Michael Anderson testified the actual date was April 27,.2004. Tr.
34. Counsel for the Secretary moved without objection to modify the citation to that date, and
the motion was granted. Tr. 35.) Citation No. 6159918 (Docket No. Lake 2005-52-RM)
involves an April 28, 2004, incident that occrirred to miner Ron Wirkkala. Exh. G-4. Citation
No. 6159919 (Docket No. Lake 2005-53-RM) involves an August 16, 2004, incident that
occurred to miner Tim Duffuey. Exh. G-6.
The citati~ns also state the company was aware of the Part 50 reporting procedures, the
alleged violations were unlikely to cause lost work days, and the company was moderately
negligent. If the citations are affirmed the parties agree a $60 civil penalty is appropriate for each
violation. Tr. 14.

28 FMSHR.C 144

recurrences that did not have to be reported." Tr.. 24. Counsel also asserted there was "some
inconsistency'' on MSHA's part regarding the reporting of recurrent injuries. He described the
issue of whether or not to report such injuries as "long festering." Tr. 26-27. Counsel argued the
Secretary should engage in rulemaking to make clear exactly what is required when a miner
experiences a recurring injury. Tr. 29. In counsel' s opinion, because none of the cited injuries
was "contemplated by the regulations[,]" the citations do not allege violations of section
50.20(a). Tr. 29-30.
Counsel for the Secretary stated·that her case was ''very simple." Tr. 19. Each of the
three miners experienced an injury-causing incident at work. The incidents were required to be
reported. The company failed to report them and, therefore, violated section 50.20(a). Jd. The
fact that the injuries might have been the result of "preexisting condition[s ]" or the "recurrence
of . .. past injur[ies]" did not matter. Tr. 22.- Counsel stated, "(A]s long as there was a new
occurrence or a new incident . .. and it resulted in an injury[,] . .. then it needed to be-reported."
Id.

THE INSPECTOR, THE COMPANY'S INJURY REPORTER AND THE CITATIONS
Inspector Anderson testified that in late fall 2004, he was told there ''was a possible
problem with the [Part 50] reporting.procedures" at the Hibbing Mine... Tr. 35. In December,
Allen Caligiuri, the chairman of the union lo~al safety, health.and environmental committee,
gave Anderson a list of 17 miners and asked if alleged injuries and/or accidents involving the
miners had been reported by Hibbing. Tr. 46; see also Tr. 119, 127.

On December 15, Anderson traveled to the mine. He met Caligiuri and they went to the
mine office. There, Anderson and Caliguiri spoke with Lena Haltvick, Hibbing' s workers'
compensation administrator. Haltvick is the person in.charge of reporting accidents, injuries and
illnesses to MSHA. Anderson, Caligiuri and Haltvick reviewed information pertaining to the
individuals. Anderson concluded the three subject miners suffered reportable injuries and
Haltvick did not file the required reports. Tr. 120- 121.
Haltvick explained to Anderson that she regarded the miners' injuries as recurrent and
that she did not believe they had to be reported. Tr. 46-47, 121, 173. For example, although
miner Don Classen suffered a hernia, Haltvick noted that Classen' s doctor diagnosed it as a
recurrence of a previous hernia. Tr. 48. In fact, Haltvick testified that Classen experienced
"four or five different hernias" over five or six years. Tr. 162-163.
Anderson disagreed with Haltvick?s.interpretation ofwhat was and was not reportable.
He believed even if an injury was recurrent, it was a "medical reportable incident." Tr. 37. With
regard to Classen, Anderson stated because he ''was on the job at the time" and the injury was
caused by the j ob, it should have been reported. Tr. 37.

28 FMSHRC 145

Anderson also pointed out that Classen's injury required subsequent medical treatment
and that MSHA's "Yellow Jacket[,]" a pu,blication in which MSHA set forth its interpretation of
certain mandatory safety and health standards, including section 50.20(a), indicated ·~a hernia is
always considered reportable." Tr. 37, see Exh. G-9; see also Tr. 27-29.· Anderson specifically
noted question and answer 39 in the Yellow Jacket:
Q.

I have an employee who has suffered a hernia
at work. He went to a doctor who diagnosed the
hernia .condition, but did not treat it. The
employee returned to' his .regular job the next
day. How should it be reported?

A.

A Form 7000-1 should be completed showing
the date of injury or date of diagnosis.. . .

._

Exh. G-9 at 30; see Tr. 38.
Anderson also testified that he was guided by question and answer 40:
Q.

An employee who suffered a hernia at work but
received no treatment initially and returned to
work at full capacity the next day. A month
later the employee.had the hernia surgically
repaired. The employee subsequently missed
ten days of work. How do I report this?

A.

Form 7000-1 should be completed within ten
days of injury.

Exh. G-9 at 30, see Tr. 39.
In addition to the Yellow Jacket, Anderson noted guidelines subsequently published in an
MSHA Program Information Bulletin (PIB):

An injury may be considered a recurrence [and not be·
reportable] only if there is no new event, occurrence
or accident which contributed to the recurrence
and there is sufficient medical documentation to
substantiate that the injury is, in fact, only a recurrence.

28 FMSHRC 146

PIB No.: 88-05 (September 28, 1988) at 3; Exh. G10 at 3. See also Tr. 50-51, 54.4
Anderson believed that under the Yellow Jack et and·the PIB an incident was reportable if
it was the result of a new event contributing to a recurrent injury. . Tr. 60-62. In Anderson's ·
view, there was no difference between an employee who was injured for the first time and an
employee who had a prior injury and was re-injured, provided in each instance the injury was
"tied to an event at the mine.'' Tr. 51-52; see also Tr.·54. For these reasons, Anderson issued
Citation No. 6159917 to Haltvick for failing to report Classen' s injury. Exh. G-2; Tr. 40.
With regard to Ron Wirkk:ula, Haltvick explained that although he suffered an on-the-job
back injury, a doctor who reported his condition noted previous back injuries "go[ing] back to . .
. Ia]1994 incident[,]" (Tr. 146), and another doctor described Wirkkula's April 2004 injury as
" [a] re-injury." Tr. 148; see Exh. H-5. Because, she viewed Wirkkula' s April injury as a
recurrence, Haltvick did not report it. Tr. 150.
While Anderson agreed that Wirkkula had.a:"fairly long history of [back] problems[,]"··
for the same reasons he gave regarding Classen; he·believed the injury to Wirkkula was
reportable, and he issued Citation No: 6159918 to Haltvick. Exh. G-4; Tr. 43, 49.
As for Tim Duffney, Haltvick explained ·that.although he also suffered an on-the-'job ·back
injury, he, too, had an "active history'' of back problems,.and she did not believe it was neeessary
to file a Form 7000-lfor his re-injury. Tr. 163.; see Jnt. Exh. 7 at 7.5
Anderson reached the opposite conclusion. He understoOd that Duffney had a ·history of
back problems, but he also understood Duffney bad "over-exerted himself while pulling,a hose."

4

The guidelines also state:
All other instances must be reported as separate cases.

It is sufficient to be a new reportable case if work
exposure was a contributing factor. Aggravation
of a previous injury due to the work environment
will not be considered a recurrence, but will be
considered a separate case.
Exh. G. 10 at 3-4; see S. Br. 39.

Haltvick recalled Duffney's doctor stating that Duffney was "having more and
more frequent low back strains." Tr. 151; Exh. H-10 at 2.

28 FMSHRC 147

Tr. 44, 49, 52. Therefore, he viewed the injury as reportable, and he issued Citation No. 6159919
to Haltvick. Exh. G-6, Tr. 44.
After the citations were issued, company representatives, including Haltvick, conferred
with MSHA officials regarding the·citations and the reporting of recurrent injmies. Haltvick
stated that when she told about the number of reports the company would have to file if such
injuries were reportable, someone representing MSHA stated the agency didn' t ''want to be
flood(ed] ... with paperwork." Tr. 152. Following the meeting, Haltvick was "still unclear"
about what should be reported. Tr. 153.

THE MINERS AND THEIR INJURIES
The miners explained their prior injuries, what happened on the day they were re-injured,
and the treatment they received; . Classen testified although he had experienced a previous hernia,
when he went to work on April 27, he did not have one; nor was he on restricted duty. Tr. 69,
72. Upon arriving at the mine, be was assigned to remove an electrical outlet box from a beam.
The box was held in place by four screws. The·screws were rusty, and the box resisted his
attempts to loosen it. Classen appplied "Liquid Wrench[,]" ·but could not tum the screws. He
applied more "Liquid Wrench" and used a pipe wrench to try to twist·the box. When this
procedure failed, Classen inserted a "cheater bar" (a short pipe) onto the handle of the wrench to
get more leverage. Tr. 77, 196. After several unsuccessful attempts to wrench·the box from the
beam, he "start[ed] to feel belly pain." Tr. 71 . When he still was unable to remove the box, he
gave up. Later in the day, he experienced more·pain. Tr. 72.
That night, Classen pulled up his shirt and saw a "good size bulge in [his] stomach." Tr.
74. The next day he visited a doctor, who told him he had a hernia, but who ·a ll0wed him to
return to work. Tr. 80. The doctor suggested Classen see a surgeon. Tr. 74. However, Classen
went to his personal doctor, who recommended Classen wear a ''belly binder'' while at work. Tr.
75. The doctor gave Classen a note stating that Classen had suffered a recurrence of a ventral
hernia. Tr. 75-76. In July, Classen had surgery to repair the hernia. Id.; see Jnt. Exh. 7 at 3.
Wirkkula testified that on April 28,.2004, he drove his haulage truck to one of the mine's
electric shovels so the truck could be loaded. . The shovel operator swung the shovel bucket
toward the truck. The bucket struck the rear of the truck.. Tr. 105; see Jnt. Exh. 7 at 5. Wirkkula
described the impact as "pretty violent" and as a "jarring type hit."· Tr. 100. Shortly thereafter,
Wirkkula noticed numbness in his right foot. Id.
Wirkkula reported the incident and the numbness to his supervisor, who sent Wirkkula to
a clinic where Wirkkula' s doctor was on duty. She examined him and scheduled an X ray and
an MRI. Wirkkula returned to work on his next scheduled shift. He worked a full day. Tr. 101102. Subsequently, Wirkkula experienced increased back pain for which he underwent physical
therapy and traction. Tr.. 104; see also Tr. 160. He did not return to his duties as a full-time
driver until mid-summer. Tr. 103.

28 FMSHRC 148

Wirkkula confirmed he first experienced back problems in 1980. Tr. 104. Then, on
February 6, 1994, Wirkkula injured a disk. 6 Jn 1996, Wirkkula suffered another back injury, and
yet another one in 1999, when he herniated a disk while working at the mine. Jnt. Exh. 7 at 6.
Prior to the April 2004, incident, he underwent two back surgeries and a nwnber of steroid
injections. Tr. l 08-109; see Jnt. Exh. 7 at 6. Because of his back condition, Wirkk.ula was rated
as having a 13-percent restriction of his back, but he still performed all of his duties as a truck
driver. Tr. 153, 156.
Duffney, testified that on August 16, 2004, he was told by his foreman to roll up a fire
hose. The hose consisted of two or three coupled sections. It was located in the mine's pellet
plant and extended from the level of the plant where Duffney was working up and into the level
above Duffney. Tr. 88-89. To wind the hose, Duffueypulled it toward·the hose reel, wound the
accumulated lengths on the reel and repeated the process. Tr. ·88-89. As he pulled., he strained
his lower back. He reported the injury to his foreman, and the following day, August 17, he saw
a doctor, who stated Duffney had experienced a "back spasm." Tr. 91. The doctor scheduled an
X ray. The X ray revealed Duffney was suffering from degenerative disk disease. Tr. 91. In
addition to the X ray, Duffney was prescribed physical therapy and pain killing medication. Tr.
91-92. Later, an MRI was ordered. Tr. 91, 95. Duffney returned to work on September 7, 2004.
Tr. 92; Jnt. Exh. 7 at 7. ·

THE COMPANY'S REPORTING -P ROCESS
Hibbing's reporting process was described by Haltvick:
To begin with, we get the initial report which is filled out
by the super[visor] or the foreman regarding the incident . ...
If it says report only, then it just gets put in the file. If it
says first aid, or medical treatment, or reoccurrence, then we
request medical [records]·· from the clinic .. . : We have a
group meeting which consists of three or four people ... [who]
go over the medical records, and rely on the information
we have to see if it' s a reportable [injury] or not.
Tr. 138-139.
According to Haltvick, those usually involved in the group meeting are the supervisor in
charge of the department in which the subject employee works; John·Kannas, the senior section
manager for safety and loss control at the mine; Brian Moody, a management employee working

6

Wirkkula' s doctor reported the 1994 date as the onset date of his April 28, 2004,injury. Tr. 107-108, Hibbing Exh. 5 at 4; see Jnt. Exh. 7 at 5.
28 FMSHRC 149

in human resources; and Mike Milnar, the company's general manager. Tr. 139. Moody held the
job before Haltvick, and she frequently·asks him for a "second opinion" about whether an injury
is reportable. Tr. 140.

In Haltvick's view, the most important things when determining whether or not to report
an injury are the records generated when an employee seeks·medical attention. Tr. 141, 168. If a
doctor states an injury is recurrent, she does not report it to MSHA. Tr. 141-142. The company
regarded recurrent injuries as non-reportable before she assumed the reporting responsibilities,
and she bas continued the practice. Tr. 142. ·
Kannas stated tl).at Hibbing has kept track of recurring injuries for a number of years; and
that the average number is 20 a year. Tr. 178, 181 . . Like Haltvick, Kannas emphasized the
importance of medical records in the company's decisional process. Tr. 202, 205.
For example, with regard to Classen's injury, Kannas felt:

It was very evident from ·reading the-medical [records] that
... [the injury] was a recurrence .... [L]ooking back through
the records you could see where he had a hernia, he had a
repair, he had a reinjury or rehernia in the same area[,] and I
~this was the third. ·And the doctor defined it as an
incisional hernia where it actually took place on the scar of
a previous hernia.
Tr. 189; see Exh. H-1at3.
With regard to Wirkkula; Kannas noted a reference in Wirkkula's medical records to a
1994 back injury -a nd an indication the 2004 injury was a recurrence. Tr. 192, Exh. H-5 at 3.
Similarly, Kannas noticed in _Duffney's medical records a ''mention of ... more and more
frequent low back pain syndromes[.]" Tr. 195. Kannas did not think a person with "a good
strong healthy back'' would be injured pulling a fire hose. Tr. 199. In Kannas's opinion, if all
recurring injuries were reported to MSHA, the reports would "overload" MSHA, and the
statistical information MSHA compiled would be ''watered down." Tr. 200.

THE ISSUE
Did Hibbing violate section 50.20(a) when it failed to file Forms 7000-1 for the injuries
to Classen, Wirkkula and Duffney? If so,.the-:Citations must be affirmed.

THE PARTIES' ARGUMENTS
Counsel for Hibbing asserts that the reporting of recurrent injuries poses a continuing
dilemma for operators. Section 50.20{a) does not specifically address the issue; nor does the

28.FMSHRC 150

regulatory definition of"occupation injury." H. Br. 10.7 Counsel maintains that a recurrence is
simply a continuation of an original injury and that the language and context of the regulations
indicates their intent is not to have multiple reports on the same injury. Id. The focus of section
50.20(a) and section 50.2(e) is on the nature of the injury, not on the event that caused it. For
this reason, the Secretary's regulations define reportable injuries not by how an injury happened,
but on the basis of whether it required medical treatment or whether it resulted in lost time or
work restriction. Id.; see also ld.12.
Counsel also argues thatthe Secretary's interpretation is unreasonable and due no
deference. fu counsel's view, the Secretary has effectively created a ''whole new reporting
requirement" by including recurrences within the definition of "occupational injury." This new
requirement should have been the subject of APA rulemaking. H . Br. 14-21.
Quoting the regulation, counsel for the Secretary counters that section 50.20(a} requires,
"[e]ach operator [to] report each accident, occupational injury or occupational illness at the
mine." She also notes the definition of"occupation·injmy'' in section 50.2(e), and asserts that the
language of the regulations must be enforced as written. It is unnecessary to interpret the
regulations beyond their plain meanings. S. Br. 3; see Tr. 219
Paraphrasing the words of the regulations, c<>unsel- argues the elements of proof are that:
1.) an injury must have occlirred;
2.) to a miner;
3.) at a mine; and
4.) the injury must have:· ..
a.) required medical treatment; or
b.) resulted in:
i) death; or
ii) loss of consciousness; or
iii) an inability to perform all job duties
any day after the injury; or
iv) temporary assignment to another job;
and
7

Section 50.2(e) defines an "occupational injury'' as:
[A]ny injury to a miner which occurs at a mine for
which medical treatment is administered ... or which
. results in death or loss of consciousness, inability to
perform all job duties on any day after an injury,
temporary assignment to other duties, or transfer to
another job.

28 FMSHRC 151

5) the operator must not have reported the injury.
S. Br. 25-26.

.

Alternatively, counsel argues.if the regulation and/or the meaning of "occupational
injury" is not clear regarding the obligations of an operator in the face of a recurring injury, the
Secretary' s reasonable interpretation as explained in the Yellow Jacket - an interpretation ·.
requiring reporting of a recurring injury if the recurrence is caused by a new event - is entitled to
deference. S. Br. 38-39. Also entitled to deference is the "clarification" contained in the PIB,
which specifically relieves an operator of the duty to report if a renewal of a prior injury is not
caused by a new event.or if"work exposure was [not] a contributing factor." S. Br. 35, 39 citing
Exh. G IO at 3-4. Counsel argues that the Secretary's interpretation is valid because it is
"reasonably related to the statutory provision under which it was promulgated." S. Br. 40
(quoting Freeman United Coal Mining Company, 6 FMSHRC 1577, 1579-89 (June 1984)) and
that "MSHA would abdicate its responsibilities-under the Act were it to rely solely on the mine
operator's determination that an injury need not:be reported." S. Br. 44. Because in the three
instances at issue the-medically treated injuries were caused by ''new events," they had to be
reported. S. Br. 39.
RESOLUTION OF THE ISSUE
The meanings of sections 50.20(a) and 50.2(e) and the application.of the meanings to the
facts are at the heart of the parties' dispute. When an issue ofregulatory meaning arises, the
Commission has directed its judges to follow a specific analytical roadmap. They must look at
the "plain language of the regulation," which, "[a]bsent a clearly expressed legislative or
regulatory intent to the contrary ordinarily is conclusive.~· Freeman United Coal Mining
Company, 6 FMSHRC 1577, 1578(July1984). Only if the language is ambiguous should they
consider the Secretary's interpretation, to which they must defer if it is reasonable and not plainly
erroneous or inconsistent with the regulation. See Island Creek Coal Co., 20 FMSHRC 14, 1819(January1998).
Following the roadmap, I arrive at the conclusion the citations should be sustained. I
agree with the Secretary that the plain meaning of the regulations resolves the issue. Like the
Commission in Freeman, I find no legislative or regulatory intent requiring me to go beyond the
regulations' words, and I fully concur with the Secretary that to meet her burden of proof she
must show nothing more than that the evidence tracts the definition·of"occupation injury" and
that the injury was not reported. See S. Br. 25-26. Here, I find that the Secretary has made the
necessary showings. She has correctly parsed the wording of the.regulations to specify what she
must prove, and in each of the three instances at issue, she has met her burden by establishing an
injury to a miner at the mine that required medical treatment and that was not reported.

28 FMSHRC 152

As the Commission noted in Freeman, in section 50.2(a) the word "injury" is used in its
ordinary sense, which means that there must have been "an act that damages, harms or hurts.''
6 FMSHRC at 1578-79, citing Webster 's Third New International Dictionary (Unabridged) 1164
(1977). On April 27, 2004, Classen "damaged" or ''hurt" himself when he·tried to remove the
electrical outlet box from the beam. The "belly pain" he experienced was caused by a hernia
which in turn was caused by pulling on the wrench. This was an injury within the meaning of
section 50.2(a). Tr. 71, 75-76, 77. Wirk:kula also experienced "damage" or ''hurt'' when his
truck was hit by the shovel ' ~ bucket. The resulting nwnbness in his foot, which was caused by
his disk problems, was triggered by the jarring he received. This was an injury. Tr. 100, 103104, 107-109. Duffney was "damaged" or ''hurt" when he pulled on the fire hose. The back pain
he experienced, which was the result of a back spasm and related to his degenerative disk
disease, was caused by pulling on the hose. This, too, was an injury. Tr. 88-89, 91.

In each instance, medical treatment was required. Classen was initially prescribed and
used a ''belly binder." Tr. 75. Wirkkula was prescribed an X ray, as well as an MRI. Tr. 103-104.
Duffney was prescribed an X ray, physical therapy, painkillers and, ultimately, an MRI. Tr. 9192. Because each miner while working at the mine suffered an injury that required medical
treatment, I find that each miner suffered·an "occupational injury" as defined·by section 50.2(e),
and because Hibbing did not report any of the three injuries, I conclude the violations existed as
alleged.

In reaching this conclusion, I note the Commission' s determination that section 50.20(a)
is "consistent with and reasonably related to the statutory provisions under which it was
promulgated." Freeman at 1580. I also note my full agreement with the Secretary that her
interpretation of the regulations as requiring the reporting of a recurrent injury if there is a new
event or occurrence that causes or contributes to the recurrence is reasonably related to the
purpose of the statute, a purpose that broadly authorizes the Secretary to gather accident and
injury information to facilitate a reduction in accidents and injuries. Therefore, were I not
deciding this case for the Secretary on the basis of the plain meaning of the standards, I would do
so on the basis of deference to her interpretation.
This does not gainsay that Hibbing may have a point when it questions the usefulness to
MSHA of data on recmTent injuries. However, as long as the Secretary acts within the letter and
intent of her regulations - as she has done here - the desirability of amending the regulations to
take account of changing conditions, such as an increasing number of recurrent injuries among an
aging work force, is a matter for the Secretary and the industry, not for the Commission, to
consider. See S. Br. 30.

28 FMSHRC 153

ORDER
For the reasons stated above, the three CQntested citations are AFFIRMED, and the
contests .are DISMISSED. Docket No. LAKE 2005-50-RM also is DISMISSED. Seen. l infra.

j)iVidf~~
David F. Barbour. ·
Adrilinistrative Law Judge
(202) 434-9980
Distribution: (Certified Mail)
._

Christine M. Kassak: Smith, Esq., U. S. Department of Labor, Office of the Solicitor, 230 S.
Dearborn Street, 8th Floor, Chicago, IL 60604

R. Henry Moore, Esq., Jackson Kelly, PLLC, Gateway Center, Suite 1340, 401Liberty Avenue,
Pittsburgh, PA I 5222
/ej

28 FMSHRC 154

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500
·
Washington; DC 20001

March 16, 2006
WABASH MINE HOIDING CO.,
Contestant

CONTEST PROCEEDINGS
Docket No. .LAKE 2005-83-R
Citation No. 7580994; 03/28/05
Docket No. LAKE 2005-93-R
Order No. 7598049; 5/16/05

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

Wabash Mine
Mine ID 11-00877

DECISION
Appearances:

Christine K.assak Smith, Esq., Office of the Solicitor,
U.S. Department of Labor; .Chicago, Illinois, for the Petitioner;
R. Henry Moore, Esq., Julia K . Shreve, Esq., (on brief),
Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for the Respondent;

Before:

Judge Feldman

These contest proceedings arise from a 104(a) citation and a related 104(b) withdrawal
order issued to Wabash Mine Holding Company (Wabash). The citation and order concern the
fitness for purpose of five ventilation control seals .constructed of cementatious foam material
rather than traditional concrete block. The hearing was conducted from August 30 through
September 1, 2005, in Evansville, Indiana. The parties' post-hearing briefs·and replies have been
considered.

I. Statement of the Case
At issue are five seals located at the 2.West South.area of the Wabash Mine that separate
an abandoned area from the active mine. Seals, as a ventilation control, have two objectives.
First, seals separate unventilated, contaminated air in ·a n abandoned area from active areas of a
mine. The Secretary does not assert the cited seals failed io perform this function in that the
Secretary admits the seals were not leaking methane into the .active workings. (Sec y br. at p ..36,
n.8). Second, seals must continue to maintain their structural integrity so that they can withstand
convergent pressure from the mine roof and floor, as well as lateral pressure from an explosion,
to prevent the escape or propagation of gases from the abandoned area into the active area.
Section 75.333(h), 30 C.F.R. § 75.333(h), the cited mandatory safety standard, requires that

28.FMSHRC 155

"[a]11 ventilation controls, including seals, shall be maintained to serve the purpose for which
they were built." It is the cited seals' ability to withstand lateral pressure, also referred to as
static horizontal pressure, in the event of an explosion; that is the focus of this proceeding.
II. Findin&s of Fact
Both the Mine Safety and Health Administration (MSHA) and the State of Illinois require
abandoned mine areas to be either sealed or ventilated. Sealing an abandoned area eliminates the
necessity for ventilation or examination of the area. After an area has been sealed, the
atmosphere behind the seals stabilizes over time. Methane levels rise above the explosive limit
of 15 percent as oxygen levels decrease below the amount necessary for ignition. However,
leakage of concentrated methane from behind a seal into the active mine results in dilution of the
methane with fresh air that could create an explosive range of 5 to 15 percent methane in the
active workings.
Section 75.335, 30 C.F.R. § 75.335, of the Secretary' s regulations governs the
construction of seals. Section 75.335(a)(l)(i) specifies that seals constructed after
November 15, 1992, shall be "[c]onstructed of solid concrete blocks at least 6 by 8by16 inches,
laid in a transverse pattern with mortar between all joints." However, section 75.335(a)(2)
permits "[a]ltemative methods or materials to be used to create a seal if.they can withstand a
static horizontal pressure of20 pounds per square inch [(20 psi)] provided the method of
installation and the material used are approved in-the ventilation plan."
The approved Wabash Mine ventilation plan allowed several alternatives to solid
concrete block seal construction. (Joint Stip. 15; Joint Ex. 1). Among them was pumpable
material seals. The ventilation plan provided:
Pmppable Material Seals - Will be constructed using cementatious foam with a
compressive strength of at least 200 psi 'and will have a minimum thickness of
four (4) feet. All fonnwork [sic] and framing will be left in place on both sides of
the seal if deemed necessary by mine supervisory personnel. Hitches and footings
are not required for this type of seal.
(Joint Ex. 1).
The 2 West South seals (the south seals) were installed in 1993 by Alminco, Inc.,
(Alminco). Consistent with the ventilation plan, the seals were constructed using a cementatious
foam material that is pumped between wood forms that are constructed to mine specifications.
The seals in issue were poured into the forms to dimensions of 4 feet thick, 6 to 7 feet high,
and 18 to 19% feet wide, depending on the width and height of each entry. (Tr. 33, 92-93, 122;
Joint Ex. 1).
The cementatious foam material for the south seals was poured into the wood forms
constructed in each of the five entries. The material was pumped into the forms in a wet mix that

28 FMSHRC 156

forms a slurry which undergoes a curing process whereby the seals harden and acquire their .
compressive strength. The seal remains in the entry for the life of the seal.
During the pouring of the seals, Alminco obtained a total of nine representative samples
taken in cylinders 3 inches in diameter by 6 inches tall from nine standard pre-determined
locations from the top, middle and bottom of each seal. The cylinders were allowed to cure for
28 days at which time they were tested for vertical strength. This was accomplished by exposing
the cylinder samples to vertical forces to determine 'the amount of pressure each saniple ·c ould.
withstand. The Secretary does not contend that Alminco' s sampling process was flawed or
otherwise.,contrary to industry standards. The average compressive strengthS for the nine
cylindrical samples taken from each of the five south seals were:
South Seal # 1 - 600-psi ·
South Seal # 2 - 322 psi
South Seal # 3 - 238 psi
South Seal # 4 - 340 psi
South Seal # 5 - 460 psi

·-

(Resp. Ex, 11). The average-compressive strength for each of the five seals at installation was
392 psi. These results do not reflect any curing problems with the sampled material. ·
A compressive strength (vertical strength)-of 200 psi is very important .i n determining the
stability of a seal and ensuring its ability to withstand at least 20 psi horizontal force. {Tr. 314,
320). Increasing the vertical strength of a seal will increase its horizontal strength, although not
in linear proportion. (Tr. 314).
Cementatious. foam seals are designed for use in mine areas where convergence
of the roof and floor is expected. (Tr. 123-24, 537). There is approximately 800 feet of
overburden at the Wabash Mine causing coal pillars to compress into the floor. (Tr. 60, 236;
Gov. Ex. 3). ·Roof sagging and floor heaving in the 2·West South area began within-months of
installation of the seals,-causing destruction of the wooden forms used to-construct the seals.
Wooden forms are installed to control the dimensions of the poured seal. The wooden framing
does not affect the structural strength of the seal.
Wooden cribs and posts in the area have also compressed over the past 12 years.
Pressure from the roof and from the seals increased the floor heaving at the base ofthe seals.
Thus, although the seals were originally 6 to 7 feet high, they now also are compressed to
approximately 3Yi to 4Yi feet. Precise measurement is difficult, if not impossible, because of the
significant floor heaving that surrounds the base of the seals.
Illinois law requires the examination of seals prior to every shift. MSHA requires only
weekly examinations. Tests for methane are taken at the south seals during these examinations.
(Tr. 546). Seals are not intended to be leak-proof. (Tr. 360). Virtually all seals leak in either
direction, towards or away from the active mine, depending on barometric pressure. On days
when barometric pressure is low, leakage would be in the direction of the active mine.
28FMSHR.C157

Conversely, high barometric pressure would cause the mine atmosphere to leak through the seals
in the direction of the abandoned area.
Bottle samples and readings from hand-held detectors are taken from the accessible active
mine side of a seal to determine if a seal is structurally compromised with respect to leakage.·
Obviously, the abandoned mine side ofa seal is inaccessible. Aside from .the effects
of normal barometric·changes, the evidence reflects both State and MSHA mine inspectors
detennined that the subject seals were not leaking.
The Wabash Mine is a large mine. There is a constant presence ofMSHA inspectors at
this mine in that the statutorily mandated quarterly mine inspections can take the entire quarter to
complete. (Tr. 54-55). Illinois state mine inspectors are also frequently performing their duties
at the mine. The Secretary concedes that the subject seals were designed and installed in
accordance with the approved ventilation plan at the time of their installation in 1~93. (Tr. 212).
a. MSHA Witnesses
MSHA mine inspector Steven Miller, the issuing inspector, testified that "[t]here is a long
history behind these seals." 1 (Tr. 102-03). Prior to ·beginning his quarterly inspection, Miller
discussed the condition of the seals with Michael Renny, an MSHA inspector who h.ad conducted
the previous quarterly inspection at the mine. Renny expressed concern about whether the seals
were being adequately maintained. A seal that is not ·structurally sound cannot be repaired and
must be replaced. (Tr. 231-32). Dave Whitcomb, Miller's supervisor, instructed ·M iller to take a
closei; look at the seals. (Tr. 103..04, 375-76).
Miller inspected the south seals on or about March 28, 2005. Approaching the seals
required crawling or stooping uncomfortably because of the significant compression of the roof
and heaving of the mine floor.
The faces of the seals had been sprayed with a polyurethane material several years before.
Wabash maintains the spray was applied to minimize exposure of the faces to the mine
atmosphere to retard further deterioration. (Tr. 774). Although the polyurethane spray can
obscure the condition of faces, an Illinois mine inspector testified.spraying seals is neither
prohibited nor unusual. (Tr. 489). On the other hand, Miller testified that while spraying foam
material on the .top or side of a seal to fill gaps is common, he had never seen a spray applied to
the face of a seal. (Tr. 111 ). In any event, the evidence does not support an inference that
Wabash applied the spray material to obscure observation of the subject seals.

1

MSHA inspector Steven Miller and union safety committeeman James Miller testified
in this matter. All references to ''Miller" refer to inspector Steven Miller unless otherwise noted.
28 FMSHRC 158

As noted, the seals were compressed to heights varying from approximately 3¥2 to
4¥2 feet. The faces of the five seals were somewhat buckled and the faces generally were
granular to the touch. As noted, the wood framing material had become dislodged~

Specifically, the No. 1 seal exhibited the most facial deterioration. (Tr. 84). There
was a 3 inch diameter hole in the center of the seal that was approximately 6 inches deep.
(Gov. Exs. 4, 5). The hole was just big enough to stick .the tips.of the fingers in. (Tr. 493).
Miller also observed facial cracks in the No. 1 seal. Methane readings taken by Miller and
Illinois mine inspectors were negative reflecting that neither the 6 inch hole nor the facial cracks .
in the No. 1 seal penetrated the seal or otherwise caused leakage. (Tr. 84, 96-97, 472). The No.
2 seal's center exhibited powdered material to an approxinlate·depth of 4 inches. (Tr. 308; Gov.
Ex. 6, 7). The No. 3 seal's wood frame was broken, and there were surface cracks on the face of
the seal. (Tr. 81, 83; Gov. Ex. 8). The No. 4 seal had facial cracks. (Tr. 90, Gov. Ex. 9, 10).
The No. 5 seal contained a sampling pipe that was used to sample the atmosphere on the
abandoned side. (Tr. 118, 258). The exterior was granular to the touch, although the No. 5 seal
appeared to be the best of the south seals with respect to structural integrity. (Tr. 119-20). In
short, even Wabash's expert witness conceded the fac.e s of the seals were ''unsightly." · (Tr. 535).
Immediately prior to issuance of the subject citation, Miller took methane readings at all ·
five of the south seals. Despite the surface cracks and powdery exterior 'descn'bed by Miller, all
sampling revealed an absence of methane at the seals. (Tr. 96-97). As noted, there were no
methane readings taken by federal, state or mine personnel at the cited seals that evidenced any
abnormal leakage. Significantly, the presence or lack of leakage is the ·criterion MSHA uses to
pass or fail seals of various designs after they are exposed to 20 psi·explosions in: laboratory test
settings. (Tr. 359).
Although Miller maintained that the deterioration of the.seals was excessive, Miller
agreed that facial deterioration of cementatious foam material is a natural consequence of
compression. fu this regard, Miller acknowledged that deterioi:ation in a mine environment is a
fact of life, and that, without drilling a sample from the.seals, he had "no way of knowing what's
behind that buckling." (Tr. 120-21).
As a result of his observations on March 28, 2005, Miller issued'104(a) Citation
No. 7580994 citing a violation of the mandatory safety standard in section 75.333(h) because the
south seals allegedly no longer served the purpose for which they were built. Specifically, the
citation stated:

The 2 West South Seals have not been·maintained to serve the purpose for which
they were built. They are found in an area·that experienced squeezing and · ·
convergence and show signs of stress. The seals show signs ofbuckling as well
as fracturing of the outer portion of the seal,material. New seals must be built in
an area where overburden pressures will not affect the structural integrity of the
seals.
(Gov. Ex 1).

28 FMSHR.C 159

Miller explained that he designated the cited violation as non-S&S in nature because
there was no methane present and there were no conditions·that created potential ignition
sources. (Tr. 58). Generally speaking, a violation is properly designated as non-S&S if
it is unlikely that the hazard contributed to by the violation will result in a serious injury.
Nat'/. Gypsum Co., 3 -FMSHRC 822, 825 (April 1981).
The abatement period was initially established as April 28, 2005. The abatement date
subsequently was extended until May 16, 2005, to provide an opportunity for MSHA's Technical
Support personnel to examine the seals.- (Gov. Ex. 1).
MSHA technical personnel and Wabash representatives observed the south seals on
May 9, 2005. MSHA was represented byClete Stephan, MSHA~s technical support seal expert,
inspector Miller and Mark Eslinger, MSHA's supervisory mining engineer. Wabash' s principal
representative was by Jack Trackemas who is the Director of Technical Services for Foundation
·Coal Company, Wabash' s parent company.
Mark Eslinger is a registered professional engineer in the State of Indiana. He has
been employed by MSHA and its predecessor agencies since 1971. Miller enlisted Eslinger to
accompany him and Stephan during their May 9, 2005, inspection of the seals. (Tr. ·207).
Eslinger opined there is no way to test a seal for horizontal strength once it is installed.
(Tr. 218).
Eslinger testified about the industry standard testing_(ASTM) procedures for ensuring the
compressive strength of cementatious seals that were utilized by Alminco with respect fu
sampling and 28 day curing. In this regard, Eslinger stated:
Question:. So how do you tell if a seal is good or bad?
Eslinger:

Well, it has to be.built like I said in accordance with what's approved, okay.
And in a case like the pumpable seals, to assure that there is a minimum
compressive strength to the concrete or I'm calling it concrete because its
very similar to concrete, it' s low-strength concrete . . .. There is a standard
test for.testing concrete cylinders, and it's the same test that's used there to
determine the compressive strength of the material.

(Tr. 215-16).
Eslinger further testified that based on his May 9 observation of the powdery consistency
and surface cracks on the faces of the south seals, he concluded:
I think [the seals] bad enough vertical pressure·of the roof and floor such that the
seals have·cracked and that they would no longer withstand the 20 psi if we
subjected it to the 20-pounds-per-square-inch pressure weight.
(Tr. 218).
28 FMSHRC 160

Clete Stephan is a registered professional.engineer in the State of Pennsylvania.and a
nationally Certified Fire and Explosion Investigator (CFEI). (Gov. Ex 12). He has been
employed by MSHA in supervisory and engineering positions since 1977. During his tenure at
MSHA, Stephan has investigated nwnerous underground coal mine explosions. He currently
serves as a General Engineer in MSHA's Ventilation Division. Stephan testified that, while solid
concrete block is generally stronger than cementatious foam seals, it is unforgiving under stress.
Thus, cementatious foam is the material of choice in applications where convergent roof and
mine floor forces cause squeezing. (Tr. 302-03).
Stephan explained that curing problems arise in seals when moisture leaves the slurry mix
prematurely before the cementatious material hardens and acquires its compressive strength.
(Tr. 297-98). Based on his May 9 , 2005, observations of the south seals, Stephan concluded that
the granular surface and facial cracks, that he.estimated were 4 to 5 inches in depth, were
attributable to improper curing. (Tr. 306, 309). · Stephan opined"... that the-powdered material
that was there would really give an indication that those seals didn't really have the c0inpressive
strength that they needed throughout the body of the seal to survive that kind [20 psi] of an
explosion." (Tr. 311).
Stephan ultimately opined that the south seals could.only withstand 5 psi horizontal
pressure. (Tr. 337). Stephan's opinion was not based on any quantitative analysis. Rather, he
concluded the south seals were not significantly structurally·stronger than standard ventilation
controls such as stoppings, regulators and overcasts, that can withstand approximately 2 to 4 psi
lateral pressure. (Tr. 337).
Stephan also expressed concern over the degree of convergence of the south seals.
Stephan opined that while convergence tightens the center area of the seal where convergence
occurs, it weakens the outer perimeter. (Tr. 336-37). Thus, Stephan initially opined that MSHA
would accept "around 20 percent convergence." (Tr. 355). Whether he initially mis-spoke is
unclear because he immediately changed the maximum acceptable convergence to 30 percent.
Id. Thus, Stephan opined convergence of 1.8 feet in a 6 foot entry and 2.1 feet in a 7 foot entry
was the maximwn vertical pressure the south seals could withstand and still maintain-structural
rigidity at 20 psi horizontal forc.e . (Tr. 355-57).
The exact magnitude of convergence for each of the 5 south seals is unclear. While the
entries have converged from 6 to 7 feet high to 3Yz to 4Yz feet high, it is doubtful that the seals
have compressed to 3Yz to 4Yz feet high because the seals have been driven into the floor causing
the floor to heave around the seals. For example, the mine floor has heaved around the·sampling
pipe in the No. 5 south seal although the pipe originally protruded from the seal approximately
one foot above the mine floor. (Tr. 55 1, 562-63, 606-07; Gov. Ex. 17).
Despite Stephan's concern about the extent of convergence, Stephan also testified-that he
believed the south seals never had the ability to withstand more than 5 psi since they were
installed in 1993 because of improper curing. (Tr. 395-96). However, Stephan was unable to
explain satisfactorily why he concluded the south seals were capable ofwithsianding only 5 psi
explosive force, initially relying on laboratory observations of similar seals at the National
28 FMSHRC 161

Institute of Occupational Safety and Health (NIOSH) Lake Lynn testing facilitylthat failed when
exposed to explosive forces, and later relying on his observations at mine explosion accident
sites where seals failed. (Tr. 390-397).

b. 104(b) Order
On May 16; 2005, MSHA representatives met with Wabash mine management.
Wabash informed MSHA that it intended to contest the citation and that it did not plan to replace
the seals 1Ultil the matter was litigated. On that day, following the meeting, MSHA inspector
Elzia Napier was directed by his supervisor to issue 104(b) Order No. 7598049 with respect to
the south seals.3 The Order stated:

No effort has·been made by the mine operator to replace or rehabilitate the
200 West south seals, citation #7580994, dated 3/28/2005. All persons are to be
withdrawn from the 200 West Cut Thru area from 1W3 belt 1Ulderpass to the doors at
crosscut #4 on 2nd West.
No one is to enter this affected area except those persons designated by the
operator or an authorized representative of the Secretary necessary to correct the ·
condition .o r any public official whose official duties require him to enter the area
and any representative of the.miners who in the judgment of the operator er an
authorized representative of the Secretary whose presence in such area is
necessary for the investigation of these conditions and any consultant to any of the
foregoing.
(Joint Stip 12; Gov. Ex. 2).

2

Lake Lynn is an experimental coal mine facility where tests have been performed
and documented in various publications by NIOSH, the Bureau of Mines, MSHA and seal
manufacturers, concerning a variety of seal designs including cementatious foam seals.
(Tr. 213-14, 297-99).
3

Section 104(a) of the Mine Act provides that a citation issued by the Secretary
..... shall fix a reasonable time for the abatement of t,he [cited] violation." 30 U.S.C. § 814(a).
Section 104(b) provides that if on follow-up inspection the Secretary finds:
(1) that a violation described in a citation issued pursuant to subsection (a) has not
been totally abated within the period of time as originally fixed therein or as
subsequently extended, and (2) that the period of time for the abatemen~ should
not be further extended, [she] shall . . . promptly issue an order requiring the
operator ... to immediately cause all persons [affected] ... to be withdrawn ...
until ... the Secretary determines that such violation has been abated.-

28 FMSHRC 162

. The 104(b) order prevented inspection of the south seals by Wabash' s preshift examiners
as well as examination of a second set of seals known as the north seals, which were on a
separate split of air. Since the order precluded regular preshift examinations, the State of Illinois
directed its mine inspectors to inspect the seals on a weekly basis. (Tr. 438-39). During those
inspections, Illinois personnel took bottle samples both in front of the seals and from the sample
pipe in the No. 5 seal that draws air from the sealed area. These samples did not reveal any
leakage. (Tr. 443).
·At the hearing, the record was left open for MSHA to modify the 104(b) order to relieve ·
the Illinois inspectors ofperfonning the functions of Wabash's preshift examiners. (Tr. 833-35).
104(b) Order No. 7598049 was modified byMSHA on September 16, 2005. The modification
specified:
Order #7598049 is hereby modified to allow preshift and weekly examinations
along the normal examination routes through the area now covered by this order.
No other work or travel through the 2nc1 West entries is allowed except .for
correcting hazards identified during the examinations.
Letter from R. Henry Moore, Esq., to Judge Feldman-(Sept. 9, 2005).
c. Wabash Witnesses
Jerry Odle is a State of Illinois inspector who·has been inspecting the Wabash Mine since
1993. In May 2005 Odle began performing frequent inspections of the·south seals-in lieu of .
preshift examinations after the 104 (b) order was issued. Odle' s bottle samples did not reveal
·
any leakage.
Donald McBride is Odie's supervisor. McBride has been employed by Illinois for
16 years. McBride did not ·believe the south seals needed to be replaced. McBride testified:
Question:. Did you come to a conclusion as to whether or not those seals needed
to be replaced?
McBride:

Not just from looking, no. The seals are - the wood, the cribbing, the timbers
on the approaches to the seals, the walking height, is no cakewalk. In fact,
it's what we call a duck walk or a monkey walk from in between each seal.
Now, the approaches to the seals was [sic] no problem, once you got to the
sealed area, the heaving that's been talked about, had caused the walking
height to be uncomfortable at best. But-we didn't see anything top~wise that I
would consider a hazardous condition.

Question: Okay, in terms of the seals themselves, did you come to a conclusion that
they were doing what they were supposed to?

28 FMSHRC 163

McBride:

They separate the two atmospheres. We have very bad air behind the seals
because there hasn't been any fresh air ventilation there since 1993. Methane
goes up, oxygen goes down, and you want to make sure that stuff stays
contained behind the seal.

(Tr. 442-43).
McBride further testified that he "[had] no way of knowing" whether a seal with surface
cracks that was not leaking could withstand an explosive force. (Tr. 492). Thus, both Odle and
McBride believed the south seals were performing their function.
James Miller is a United Mine Workers Union safety committeeman who has worked at
the Wabash Mine since 1974. Miller believed, based on nonnal methane readings, that the south
seals separated the sealed area from the active area of the mine. (Tr. 645). ·

Alan Campoli has a Ph.d. in Mine Engineering and Master's degrees in Mining and
Industrial Engineering. Campoli' s Ph.d. dissertation was on high stress .failure of coal pillars in
underground mines. Campoli's dissertation is applicable to the issues in this case that concern
the structural sufficiency of seals that are exposed ·to convergent. underground mine stresses. ·
Campoli was employed as a research engineer by the United States Bureau of Mines in
Pittsburgh, Pennsylvania from 1979 to 1995. Campoli specialized in ground control and
methane.drainage system design. As a consequence of his employment, Campoli was familiar
·
with the testing procedures and-results.for seals at NIOSH's Lake Lynn fa.Cility.
Since 1997, Campoli has been the Business Development Manager for Minova, USA,
a leading supplier of seals that perfonns services related to the design and installation of
cementatious seals. (Tr. 528; Resp. Ex. 12). In fact, some of the seals evaluated at Lake Lynn
were designed by the Minova company. Campoli's duties include consulting with mine
operators with regard to the suitability of a particular type and size of cemetatious seal for a
particular mine.
Campoli examined the south seals at the Wabash Mine in April 2005. (Tr. 533). After
viewing the seals Campoli concluded:
And I believe after - - after a view of the seal faces and looking at the - - they are
unsightly, as everyone has said, but they - - they - - they- - my inspection revealed
them to be basically solid. And I believe that in their condition, considering the
test results from the grab samples that were taken when they were placed,
combined with the amount of defonnation that they had experienced in the mine,
that they meet or exceed the [20 psi] standard that was set at Lake Lynn.
(Tr. 535).

28 FMSHRC 164

Campoli stated that the weakest area of a .mine that is exposed to stress will experience
the most defonnity. In the vicinity of the south seals; Campoli concluded the weakest.area was
the mine floor. In this regard, Campoli opined that the primary convergent force was from the
roof through the coal pillars-and seals transferring weight to the bottom causing heaving.of the
mine floor. (Tr. 535-36). Campoli testified that it was significant that the south seals were
strong enough to deform the mine floor, yet maintain their integrity at the bottom of the seal. Jn
other words, it was the seal that was pushing on the mine floor causing it to heave. (Tr. 542-43).
He stated, "[a] granular material that runs like sand cannot do that." {Tr. 544).
Campoli attributed the facial cracking to the dilation (expansion) of the face of the seal.
Thus, he concluded a four inch deep facial crack does not reflect a four inch loss of.width of the
seal because of the expansion at the face due to vertical stress. (Tr. 545-46). He explained that, .
since the seal is not pliable enough to bow at the center, surface cracks are created. (Tr. .545).
Campoli disagreed with Stephan's conclusion that the granular consistency at ihe faces of
the seals was evidence of improper curing. Rather, Campoli opined that the sand-like particles
were a result of the long-term exposure of the faces to the mine atmosphere. (Tr. 548).
To support his opinion, Campoli explained:
. . . if the material was poorly cured throughout the entire seal; under this - ... under
this heavy loading and under this dramatic defoqn.ation, it would be rolling out.
But its not rolling out. If you look at your pictures, your Honor, the crack is still·
vertical. How can sand stay vertical in·that situation? The material must have set
properly to - - to be able to react to this - ..: to this abuse in this manner. ·
(Tr. 550).
Finally, Campoli addressed Stephan' s concern regarding the degree of convergence.
Campoli explained:
Also I want to address the fact about the shortening. I believe that the shortening
of the entry cannot be - - cannot be viewed as:a one-to-one correlation with the
shortening of the seal. I believe in this case the·seal has pushed into the bottom
and measuring - - when you measure the convergence of the entry, I think only a
portion of that has actually been experienced by the center of the seal, because the
center of the seal had been strong enough to push down and extrude the bottom
[of the mine floor] into the front of it.
{Tr. 551).

In the final analysis, Campoli agreed with State inspectors McBride and·Odle that the
only way to determine if a seal has lost its structural ability to withstand the force of an explosion
·
is to test for leakage {Tr. 551-52). Based on his obseivations of the south seals, given no
evidence of leakage reflecting cracks penetrating the width of a seal, Campoli concluded that the
south seals continued to accomplish their intended purposes of separating the mine from the
28 FMSHRC 165

sealed atmosphere,~ as well as providing an explosion resist.ant barrier that is capable of
withstanding at least 20 psi horizontal force. (Tr. 534}.
As noted, Jack Trackemas is the Director of Technical Services for Foundation Coal
Company, Wabash's parent corporation. Trackemas is the Director of a group that is responsible
for all aspects of mine engineering with respect to such areas as ventilation, roof control and
geology. On May 9, 2005, Trackemas tested the south seals for leakage in the presence-of Miller,
Eslinger and Stephan. The south seals were performing their intended function.of separating.the
abandoned mine atmosphere from the active workings as there was no evidence of leakage.

Trackemas has participated in the design and testing of seals at the Lake Lynn site.
(Tr. 678-81; Resp. Ex 10). Although Campoli believed the seal width was not compromised
significantly by surface cracks that were caused by dilation at the face, Trackemas concluded ·
the only way to address MSHA' s concerns that the facial deterioration caused a functional
reduction in the width of the seals was to perfonn a computerized model finite element analysis.
(Tr. 695-96).
Trackemas conducted a finite analysis model (model) of seals and incorporated his
findings in a report entitled "Comparison of 4-ft Converged Seal with 8-ft Standard Seal."
(Resp. Ex..9; Tr. 694-95). The model is a computer program that is used for design applications
in the aviation, automotive, structural engineering industries, as well as underground mining.
Computer models are particularly useful in addressing roof control issues at mine sites.
(Tr. 727-28). Trackemas created a computerized model to· determine the stress on, and·within,
two seals, one 8 feet high by 4 feet wide, and the other 4Yl feet high by 3 feet wide. (Tr. ·695,
715, 727). The latter computer model represented a compressed seal. The models revealed that
reducing a seal's height as a consequence of vertical compression increases its resistance to
horizontal forces. (Tr. 715). Specifically, the models demonstrated that 20 psi exerted on the
shorter seal.had less effect than 20 psi exerted on the.taller seal. (Tr. 717-18). Put another way,
the shorter compressed seal had a greater density of molecular structure, and it was more stable
and less prone to movement when subjected to 20 psi horizontal force. (Tr. 719-20; Resp. Ex. 9,
fig. 4, 6). Trackemas' model was conservative in that it assumed a compressive strength of200
psi while the Alminco test samples reflect that the south seals' compressive strength was
considerably greater. (Tr. 769; Resp. Ex. 11).
ID. Discussion ·and Evaluation
Section 75.333{h), the cited mandatory safety standard, requites that "[a]ll ventilation
controls, including seals, shall be maintained to serve the purpose for which they were built."
The purpose of a seal is twofold: ( 1) to maintain separation of the air between abandoned and
active areas of a mine; and (2) to provide an explosion-resistant barrier between the two
atmospheres so that the seals prevent an ignition or explosion on either side of the seal from
penetrating through the seal. As the evidence does not reflect leak.age, the focus shifts to whether
the south seals retain the requisite horizontal structural integrity to survive an explosion.

28 FMSHRC 166

Although section 75.333(h) does not contain the minimum horizontal strength
requirements for a cementatious foam seal, section 75.335(a)(2) requires that alternatives to solid
concrete block seals must be capable of withstanding at least 20 psi .static horizontal pressure.
Wabash does not dispute that the minimum 20 psi standard must be satisfied in.this case.
Moreover, the Secretary' s incorporation of the 20 psi standard into the fitness for purpose
provisions·ofsection 75.333(h) is reasonable and entitled to deference. See, eg.,Energy West
Mining Co. V. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994).
The criteria for ensuring that cementatious seals are·capable of.withstanding a·minimum
horizontal=force of20 psi were developed at Lake Lynn. Namely, seals must be at least
4 feet thick, and they must have a compressive (vertical) strength·of at least 200 psi. MSHA
accepts a sampling methodology of nine cylindrical samples taken from standardized locations
from each seal during the installation process. The samples, after curing for 28 days, are
subjected to laboratory compressive forces to ensure. a 200 psi convergent·force tolerance. The
evidence reflects that, when·installed in 1993, the subject seals satisfied the 4 feet width
requirement and significantly exceeded the 200 psi compressive strength requirement based on
Alminco' s sampling results. Although Wabash asserts the seals may have ·been poured to widths
of as much as 4Y2 feet, the claim is self-serving and based on a purported general company policy
without any documentation or company knowledge of the specific widths of the south seals. (Tr.
772-73).
The Secretary argues that a violation of section 75.333(h) exists because the seals do not
currently have the requisite 20 psi horizontal strength because of either improper curing=at the
time of their installation, or, deterioration caused by compression from exposure to·convergent
forces. It is axiomatic that the Mine Act imposes on the Secretary the burden of.proving 1he fact
of occurrence of the cited violation by a preponderance·ofthe evidence. Garden Creek·
Poccahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). The Commission has articulated that
the Secretary satisfies her preponderance of the evidence burden by demonstrating " that it was
more likely than not" that the cited violation occurred. Enlow Fork Mining Company, 19
FMSHRC 5, 13 (January 1997). The Secretary has not offered an objective quantitative test for
determining the residual·horizontal structural strength of an existing cementatious foam seal
exposed to many years of underground stress. Thus, the Secretary has not presented direct
evidence to support her case.
While the Secretary may satisfy her burden of proof by relying on reasonable inferences
drawn from indirect (circumstantial) evidence, such.inferences mustbe·inherentlyreasonable and
there must be a rational connection between the evidentiary facts and the ultimate fact to be
inferred. Garden Creek Pocahontas, 11 FMSHRC at 2153 citing Mid-Continent Resources, Inc.,
6 FMSHRC at 1132, 1138. Here, the Secretary seeks to prevail on the ultimate fact to·be
inferred, i.e., inadequate horizontal.structural strength, based on inferences drawn from
observations of the faces of the seals from the active side of the mine. The faces on the
abandoned side of the seals are not accessible.
The parties draw conflicting inferences from the condition of the south seals. It is for the
trier of fact to determine the more reasonable inferences and·conclusions. Secy ofLabor on
28 FMSHRC 167

behalfofJackson v. Mountain Top Trucking .Co., 23 FMSHRC 1230, 1236 (Nov. 2001). Before
addressing the inferences to- be drawn, inspector Miller conceded that fundamental engineering
principals dictate that structures must be designed with a margin of safety. (Tr. 121-24). Thus,
when seal specifications require a minimum of four feet in width and-at least 200 psi vertical
strength to assure horizontal strength of at least 20 psi, reasonable departures from those
specifications due to construction variations or deterioration are contemplated. In this regard, as
Stephan explained, unlike concrete block, cementatious seals are "forgiving" in that they are
designed to deform when subjected to convergent stress. Virtually all witnesses, including
Miller, Stephan and Campoli, agree that·as a general proposition, facial deterioration is an
anticipated result of exposure to convergent stress, and that such deterioration does not
necessarily establish a lack of structural integrity.
Alminco's sample results, not challenged by the Secretary, reflect the average
compressive strength of the five south seals at installation was 392 psi. Stephan conceded
increasing the vertical strength of a seal will increase its horizontal strength, although not in
linear proportion. (Tr. 314). Thus, we begin with seals that significantly exceeded the minimum
requirements for structural strength at the time they were installed in 1993, notwithstanding the .
margin of safety.
Turning to the Secretary's case, it is noteworthy that the "long history behind these seals"
related by Miller evidences a history of indecision with respect to the functionality issue.
(Tr. 102-03). The culmination of this "long history" resulted in Miller's issuance of Citation
No. 7580994 on March 28, 2005, despite: no evidence of.leakage to warrant the conclusion that
the seals had been structurally compromised; Miller's ad.mission that facial deterioration is a
natural consequence of convergent stress; Miller's acknowledgment that he had· "no way of
knowing what's behind" the face of the seal; and·the·fact that the seals have retained there
vertical tolerance despite being subjected to the weight of approximately 800 feet of overburden
since 1993.
Significantly, Miller designated the cited violation in Citation No. 7580994 as non-S&S,
purportedly because an explosion was ulllikely because of a lack of.methane and a lack of
ignition sources. (Tr. 58). However, the likelihood of explosion and propagation, which are
constant hazards in an underground mine, must be viewed in the context of continued mining
operations. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984); see also Halfway,
Inc., 8 FMSHRC 8, 12 (January 1986). Yet the non-S&S designation represents the Seeretary' s
contention that it was not reasonably likely that the alleged structurally compromised: seals
will result in an event; i.e., an explosion and.rupture of the seals, that will cause serious injury. ·
See U.S. Steel Mining Co. , 6 FMSHRC 1834, 1836 (August 1984). Rather, a more plausible
explanation for the non-S&S characterization is MSHA's inability to determine the likeliho6d of
failure (the residual horizontal strength) of the south seals in the event they were subjected to an
explosion.
It is noteworthy that Miller's issuance of Citation No. 7580994 on March 28, 2005,
occurred six weeks before technical support personnel visited the mine. Thus, Miller did not
have the benefit of technical support' s opinions when the citation was issued. Consequently, the

28 FMSHRC 168

observations and opinions of Eslinger and Stephan serve only to support MSHA' s after-the-fact
issuance of the citation rather than as a basis for Miller's action on March 28, 2005. This is the
context in which Eslinger and Stephan' s testimony must be viewed.
Miller's citation alleging that the seals no longer serve their intended purpose is not
adequately supported by Eslinger or Stephan's testimony. Eslinger testified the primary way of
knowing whether pumpable seals are sound is if proper sampling is performed during the
installation process~ As noted, proper sampling of the.south seals was performed. It reflected an
average compressive strength of 392 psi. Moreover, there is no evidence that the samples
revealed any curing problems. Eslinger' s testimony that •'he thinks" the seals can no longer
withstand 20 psi horizontal force based on his observations of facial deterioration fails to
approach the Secretary's preponderance of evidence burden. (Tr. 218).
Stephan's testimony concerning the llllderlying basis for his assertion that the seals
no longer serve their intended purpose is contradictory. Stephan contends the south seals had
"no compressive strength" since they were installed in 1993 because ·of improper curing.
(Tr. 315). Stephan also testified the seals are defective because of the degree of compression.
Yet, Stephan concedes the purportedly improperly cured.south seals, that.allegedly lack
compressive strength, do not leak despite their exposure to significant compressive forces
·
for 12 years. (Tr. 363-64).
Moreover, Stephan's curing theory was challenged by Campoli who·questioned·how
vertical·surface cracks subjected to enormous convergent stress can maintain their integrity if.the
surrollllding material was flawed due to improper curing. In addition, Stephan's opinion that
the seals were structurally unsolllld is not. supported by state inspectors Odle and McBride,: · ·
as well as UMWA safety committeeman James Miller, who all opined that the seals were
functional. As inspector Miller testified, without taking.a drilling sample from the center of the
seals, he had no way of determining structural integrity. (Tr. 120-21 ). Miller' s testimony was
echoed by state inspector McBride. (Tr. 492). In the final analysis, Stephan's belief that the
south seals were improperly cured based on the degree of powdering he observed on the faces is
based on conjecture.
With regard to compression, the evidentiary value of the degree of convergence
described by Stephan is outweighed·by the significant mine floor heaving that encapsulated the
seals making it difficult to accurately determine the .actual degr-ee of compression. Stephan's
testimony is further undermined by Trackemas' computer model that-reflected that eompression
strengthens the horizontal resistance of a cementatious seal. In fact, Stephan admitted, consistent
with Trackemas' findings, that convergence tightens the center of a seal·while weakening the
outer perimeter. (Tr. 3"36-37). The weakening of the outer perimeter occurs because
cementatious seals are designed to "give" as a result of horizontal expansion due to vertical
compression. As Campoli explained, while the effect of vertical compression·alteis the-original
dimensions of the seal with ·respect to height, it does not necessarily reduce the width of the seal
because it causes expansion at the perimeter. Thus, surface deterioration does not establish" that a·
seal no longer retains the required width. In this regard, Miller, Stephan and Campoli all agreed

28 FMSHRC 169

that surface cracking and granular material are natural consequences of compression which,
unlike concrete block, the cementatious seal was designed to withstand.
Thus, the evidence reflects that facial deterioration is not a reliable predictor of
inadequate structural integrity. In this regard, at Lake Lynn, the continuing viability of seals that
are exposed to a 20 psi explosive force is detemrined by whether there is leakage rather than the
appearance of the exterior of the seal. (Tr. 359~60); In other words, testing for leakage after a
seal is exposed to significant stress is·the method .o f determining the seal's continuing
effectiveness. It is the·absence ofleakage that is the central rub in the Secretary's.case.
Moreover, Eslinger and Miller were considerably less sanguine than Stephan concerning
their ability to predict the condition of the core of the seals based on limited exterior facial
observations. Eslinger only ''thought" the seals lacked the requisite horizontal strength and
Miller conceded "he had no way ofknowing what's behind" the facial deterioration. (Tr. 120-21,
218). State inspector McBride also testified that he did not believe the degree of resistance to
explosive forces could be determined based solely on observations. (Tr. 486-87).
The futility of MSHA's attempt to evaluate the residual horizontal force tolerance of an
existing seal based on observation is illustrated.by Stephan's testimony. Stephan testified that,
based on his observations, he concluded the south seals could not withstand more than 5 psi.
horizontal force. Stephan's opinion was based on comparing the condition of the seals to the
post- explosion condition of failed seals he had seen during the comse of his many years of
investigating mine explosions. Stephan also testified that he compared the condition of the south
seals to the condition ofcementatious seals he had seen at the Lake Lynn testing-facility that.
could only withstand 5 psi force. (Tr. 391-95). Stephan's asserted ability to confidently assess
the residual horizontal strength of the south seals·by comparing them to other seals he had
previously observed that were constructed.with different materials, and that were.exposed to
different conditions, is unpersuasive. Similarly, Stephan's vague assertien that he had observed
similar curing problems. at Lake Lynn on other cementatious seals that convinced him that
the south seals had cured improperly is likewise entitled to little weight. (Tr. 296-97, 31 S).
While MSHA witnesses contend it is a matter of degree, their opinions are subjective and
not amenable to objective quantitative analysis. Although·subjective opinions can provide a
basis for satisfying the burden of proo~ in this case, in the absence of leakage, the opinions relied
on by the Secretary are less convincing than the contrary opinions of Campoli, Trackemas and
the State of Illinois mine inspectors.
As noted above, the Secretary has the burden of demonstrating that "it is more likely than
not" that the south seals can no longer withstand a static horizontal force of20 psi. Enlow Fork
Mining Company, supra. The equivocal nature of the conditions observed at the south seals, and
the absence of leakage despite 1ongstanding exposure to ·significant stress, do not support the .
Secretary's inference that the seals' residual horizontal strength is inadequate. Thus, the
Secretary bas failed to satisfy her burden ofproof. Consequently, 104(a) Citation No. 7580994
and 104(b) Order No. 7598049 issued as a result of Wabash's failure to abate the cited condition
shall be vacated.

28 FMSHRC 170

this

As a .final matter,
4ecision should no_t be construed as trivializing the significant
hazard posed by seals that no longer perform their intended functions. While I have considered
the alternative of erring on the side of caution and affirming the citation, I decline to do so
because it would alter the burden of proof and violate due process.

ORDER
In view of the above, IT IS ORDERED that Wabash Mine Holding Company's contest
IS GRANTED.

IT IS FURTHER-ORDERED that 104(a) Citation No. 75_8 0994 an<:{ 104(b) Order
No. 7598049 ARE VACATED.

·-

Jerold Feldman
.
Amirimsttative Law Judge
Distribution: (Certified Mail)
Christine M. Kassak Smith, Esq., Office of the Solicitor, U.S. Department
230 S. Dearborn Street, gm Fl., Chicago, IL 60604

of Labor

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center,
Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222
Julia K . Shreve, Esq., Jackson Kelly, PLLC, 1600 Laidley Tower, P .O. Box 553,
Charleston, WV 25322

/mh

28 FMSHRC 171

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

March 21, 2006
SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION, ·
ON BEHALF OF DOYLE DAVIS,
Complainant

v.
SMASAL AGGREGATES & ASPHALT, LLC,
Respondent

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. CENT 2006-98-DM
SC-MD 2006-04
Portable Plant No. 1
Mine ID 23-02197

DECISION
AND
ORDER OF TEMPORARY REINSTATEMENT
Appearances: Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Complainant,
Robert C. Johnson, Esq., Husch & Eppenberger, LLC, Kansas City, Missouri,
for Respondent.
Before:

Judge Zielinski

This matter is before me on an Application for Temporary Reinstatement filed by the
Secretary of Labor ("Secretary,,) on behalfof Doyle Davis pursuant to section I 05(c)(2) of the
Federal Mine Safety and Health Act of 1977 (the "Act"), 30 U.S.C. § 815(c)(2). The application
seeks an order requiring Respondent, Smasal Aggegates & Asphalt, LLC ("SA&A"), to reinstate
Davis as an employee, pending completion of a formal "investigation and final order on the
complaint of discrimination he has filed with the Secretary' s Mine Safety and Health
Administration (''MSHA"). A hearing on the application was held in Kansas City, Missouri, on
March 14, 2006. For the reasons set forth below, I grant the application and order Davis'
temporary reinstatement.
Summary of the Evidence
SA&A produces aggregate at a crushing and screening facility known as Portable
Plant # I, near Lincoln, Missouri. The immediate supervisor of the facility is Leo Michael
Smasal. As its n~e implies, SA&A operated the quany and also had an asphalt paving
operation. From 2001 through 2004, SA&A was owned by Smasal. Davis began working in the
asphalt operation in 2001 as a roller operator and general laborer. His work history was good,
and there was no disciplinary or other adverse action taken against him. Tr. 18. In 2004, Smasal
terminated the entire asphalt crew. Davis then worked at other jobs, but also worked at the
28 FMSHRC 172

SA&A quarry because Smasal had told him that he would like ·h im to stay and return to the
asphalt operation when he hired another crew. Tr. 21. Smasal later sold SA&A to Kevin Fahey,
who also apparently owned another aggregate op.eration, Beyer Crushed Rock Company. Rick
Miller managed both facilities, and Smasal became the on-site supervisor at SA&A. In May of
2005, Miller hired Davis to work at the SA&A quarry, after talking to Smasal. Davis-was
initially assigned to set up newly purchased.conveyors. After a few weeks, he was assigned to ·
drive a haul truck, which.he continued to do for the remainder of the year. On Dee~ber 21, .
2005, the workers.at·the plant were laid off for the holidays, .and were told to come back on
December 29, 2005, to pick up their checks. On that date, Miller told Davis that he would not be
needed for- the coming year, i.e., that his·employment was terminated. Davis filed a complaint of
discrimination with MSHA on January 23, 2006, alleging that he had been discharged because he
had participated in investigations of two other discrimination complaints made by miners at the
facility, and because he had made safety complaints.
Davis described several actions that he contends were activities protected by the Act. In
August 2005, Jay Heetland, an SA&A employee, was fired. According to Davis, the termination
was an outgrowth of a heated exchange between.Smasal and Heetland, the excavator operator, ·
over Heetland's safety concerns about how the haul trucks.approached the excavator. Tr. 63-65.
Davis was present during the discussion, and told'Smasal that he believed that Heetland's
concerns were valid and that the practice being followed was unsafe. Tr. 65. Heetland filed a
complaint of discrimination with MSHA, and an investigation commenced: The investigator
appeared at the mine site and presented Smasal with .a list of approximately four employees that
he wanted to interview. Smasal arranged for someone to temporarily take over the sBbject· · ·
employee's duties, took him to the investigator, returned him to his job site after the interview,
and then took the next person on the list to be interviewed. In late November 2005, MSHA
conducted an investigation of another discrimination complaint that had been filed by a SA&A
employee, Jason Powell. The investigator followed the same procedure in that case. Davis was
interviewed during both of those investigations. The interviews were conducted in the MSHA
investigator' s private vehicle, and Davis' lasted about 20 minutes.
Davis also brought work-related issues to management's attention. Certain pieces of
equipment at SA&A were equipped with radios. Davis felt that the haul truck drivers should also
have the ability to communicate with each other and with other staff. He and at least one other
haul truck operator had radios that they had acquired with personal funds. They brought the
radios in and used them in the course of their duties, Davis raised the topic ofradios·with Miller,
who initially expressed some concern that they would be used for chit-chat. However, Miller
relented, and told Davis that SA&A would reimburse the miners for the cost of their radios, and
that they should present a receipt for the purchases. Davis testified·that not all of the operators
had radios, and some.were reluctant to expend personal funds ·for them. SA&A's scalehouse
operator suggested that he would order radios. However; he later reported that he had been
instructed not to order them. Davis interpreted that response as·an·indication that SA&A had
withdrawn the offer to reimburse miners who had purchased radios. He never presented a receipt
for his radio, or otherwise requested reimbursement. Davis and the other miners used their

28 FMSHRC 173

radios, and there is no evidence that SA&A sought to interfere with that use.
Davis experienced problems with the tires on his haul truck. Jn his opinion, they showed
considerable wear, which led to problems such as blowouts when he encountered rocks or other
obstructions. When perfonning his preshift examinations, he frequently recorded "bad.tire" on
the examination report. He also had a problem with tire leaks, often discovering that a tire was
underinflated during his preshift examination, or in the middl~ of his shift. These problems were
brought to Smasal' s attention, both verbally and by the notations on the·preshift examination
forms, which Smasal reviewed every day. Davis felt that those problems, and others, such as
worn tires, lingered for weeks or months, and he called ·them to Smasal' s attention on numerous
occasions.
Respondent, through Smasal and Miller, contradicted much of Davis' testimony. Records
of repairs performed on tires on the haul truck driven by Davis were produced, and it was
explained that problems with haul truck tires, particularly valve stems, were·relatively common
because of the environment, where they encountered .rocks and mud.. Tire issues were
approached in a graduated fashion, and tires were.eventually replaced on Davis' truck. Smasal
also testified that Davis was at least partially responsible .for the problems, because he ·struck
rocks that should have been avoided. He also drove in dumping areas where he was not
supposed to have gone, and encountered mu~ which can get compressed.between the tandem
tires and create problems with the valve stems. Miller also explained that the offer to reimburse
miners for the purchase of radios had never.been retracted, and confirmed that no one had
requeste~ or been denied, reimbursement.
Findings of Pact and Conclusions of Law
Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the
Secretary shall investigate a discrimination complaint "and if the Secretary finds·that such
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint." The Commission has established a procedure for making this determination.
Commission Procedural Rule 45(d), 29 C.F.R. § 2700.45(d), states:
The scope of a hearing on an application for temporary reinstatement is
limited to a determination as to whether the miner's complaint was frivolously
brought. The burden of proof shall be upon the Secretary to establish that the
complaint was not frivolously brought. Jn support of his application for
temporary reinstatement, the Secretary may limit his presentation to the testimony
of the complainant. The respondent shall have an opportunity to cross-examine
any witnesses called by the .Secretary and may present testimony and documentary
evidence in support of its position that the complaint was frivolously brought.

28 FMSHRC 174

''The scope of a temporary reinstatement hearing is narrow, being limited to a determination by
the judge as to whether a miner's discrimination complaint is frivolously brought." Sec'y of
Labor on behalfofPrice v. Jim Walter Resource9, Inc., 9 FMSHRC 1305, 1306 (Aug. 1987),
affd sub nom. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990).

Jn adopting section 105(c), Congress indicated that a complaint is not frivolously brought,
if it "appears to have merit." S. Rep. No. 181, 95m Cong., 1st .Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nc1 Sess.,
Legislative History ofthe Federal Mine Safety and Health Act of1977, at 624-25 (1978). The
"not frivolously brought" standard has been equated to .the "reasonable cause to believe" standard
applicable in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Sec·'y ofLabor on
behalfofBussanich v. Centralia Mining Company, 22 FMSHRC 153, 157 (Feb. 2000).
While an applicant for temporary reinstatement need not prove a prima facie case of
discrimination, it is useful to review the·elements of a discri.J;nination claim in order to assess
whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to
establish a prima facie case of discrimination under Section 105(c) ofthe Act, a complaining
miner bears the burden ·of establishing ( 1) that he engaged in protected activity and (2) that the
adverse action complained ofwas motivated in any part by that activity. Sec'y ofLabor on ·
behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d-1211 (3rd Cir. 1981); Sec'y of
Labor·on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803: (April 1981 ); Sec .'y of
Labor on behalfofJenkins-v. Hecla-Day Mines. Corp.,.6 FMSHRC 1842 (Aug. 1984); Sec'y of
Labor on behalfofChacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981 ), rev'd on other.
grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
A miner' s ability to complain about safety is8ues and to participate in investigations of·
discrimination complaints are fundamental rights afforded and·protected by .the Act.· Complaints
made to an operator or its agent of "an alleged.danger or safety or health violation," and
participation in discrimination proceedings are specifically described as protected· activity in
section 105(cX1) of the Act. 30 U.S.C. § 815(c)(l). Even on this limited record, the Secretary
has presented ample evidence that Davis engaged in activity protected under the Act. He
participated in the investigation of two discrimination complaints, and raised issues that
pertained to the safe operation of the haul truck.
SA&A argues that Davis' concerns about radios, tires, and other issues ·were routine nonsafety related work discussions that are.now being transformed into something they were not.
Aside from the discussion about backing haul trucks down to the excavator, Davis agreed that he
did not identify his concerns specifically as safety issues, and did not raise them at weekly safety
meetings. He felt that he had repeatedly raised·his concerns with Smasal and Miller, and that
they were well aware of them. Tr. 216-17. Regardless of the label Davis put on his concerns, the
issue of the integrity of the tires on his haul truck was very much related to safety. The loaded
haul truck weighed approximately 180,000 pounds. It had a total of six tires, including four in

28 FMSHRC 175

dual tandems on the single rear axle. An underinflated or blown rear tire would very likely affect
handling of the truck and, possibly, braking performance. Since the truck was required to operate
on occasionally steep grades and rough pit roads, and in close proximity to other·equipment, any
problems caused by poor tires could pose safety concems. 1
·
As to Davis' participation in the MSHA investigations, SA&A argues that there is no
evidence that it knew anything of the substance ofDavis' participation, and that the mere
.knowledge that Davis spoke to an MSHA investigator cannot support an inference that that
somehow led to his termination. However,- SA&A knew how long Davis had spoken to the
investigator, as compared with other miriers, and also knew that the second investigation
concerned-a complaint by Davis' nephew, who Davis most likely would support.
The Commission has .frequently acknowledged that it is very difficult to establish "a
motivational nexus between protected activity and·the adverse action that is the subject of the
complaint." Sec'y ofLabor on behalfofBaier.v. Durango.Gravel, 21FMSHRC953~ 957 (Sept.
1999). Consequently, the Commission-has held-that ." (l) knowledge of the protected activity;
(2) hostility or animus towards the protected:activity; and .(3) coincidence in time between the
protected activity and the adverse action" are all circumstantial indications·of discriminatory
intent. Jd;
Respondent had knowledge of Davis' protected activity. His concerns about tire ·
problems were raised directly with management. Moreover, the manner.in which·the MSHA
discrimination investigations were conducted assured that his participation, as well as·an
indication of its extent, was known to management." Miller, who along with Fahey, made the
decision to terminate Davis, testified that he was not informed of the identities ofminers who
participated in the MSHA interviews. Tr. 194. However, he acknowledged that he may have
known the identity of one of the miners involved. Tr. 204-05. Smasal also was required to
record items of interest and forward -copies of his notes to Miller at the end of each day. Miller
agreed that if the miners' identities had been reflected in Smasal's notes, he would have seen
them. Tr. 204-05.
Some of Davis' activities, notably, his participation in the second MSHA investigation,
occurred in relatively close proximity to the adverse action, which could give rise to an inference
that it was motivated, in part, by the protected activity.
While there is no direct evidence of overt hostility toward protected activity by SA&A,
there are indications that such information might be developed in the investigation of the

1

I agree with Respondent that the radio issue appears to be of limited significance.
While Smasal agreed that effective communication can enhance safety, and that SA&A's major
pieces of equipment are equipped with rad,ios, there is no evidence that SA&A did anything to
discourage the use of radios, or that it retracted tJae offer to reimburse miners who had purchased
their own radios.
28 FMSHRC 176

complaint. SA&A argues that other miners who-spoke to the MSHA investigator are still
employed. However, in addition to Davis, some miners who the MSHA investigator sought to
interview are no longer employed by SA&A. Tr. 132. The extent of their participation in the
investigation and the circumstances surrounding their departures were not explored at the
hearing. The limited evidence regarding the incident that apparently led to Heetland' s
termination suggests that it may have been related to·hostility toward safety concerns. It also
appears unusual, considering the size ofSA&A's·workforce, that three miilets would be ·
subjected to adverse action within a few months; all of whom lodged complaints of
discrimination with MSHA.
The strength of an inference of improper motivation may be countered by the plausibility
of an operator's explanation for the adverse action, including any evidence of consistent ·
treatment of other similarly situated employees. These issues are normally addressed in
analyzing an operator's affirmative defense to an allegation of discrimmationl Respondent
introduced evidence that Davis was not a model employee. He was repeatedly counseled about
shortcomings, e.g., failure to wear his hard hat when he exited his tmck,-leaving a fuel nozzle in
the "on" position, and driving errors that may have contributed to the tire problems and caused
interruptions in production. Miller testified that he and Fahey made the decision to terminate
Davis during what amounted to a year-end review, a process that they also followed with respect
to the Beyer operation.
However, other evidence calls into ctuestion this seemingly plausible explanation.. Aside
from Smasal' s daily notes, which·may not have included references to some of the incidents,·it is
unclear exactly what information the decision was based upon. Smasa}, Davis' ·day-to-day
supervisor, typically had input into hiring and firing decisions made by Miller:' Tr. ·106.
However, he was "not involved" in the decision to terminate Davis. Tr. 189. Copies ofSmasal's
notes show that the fuel nozzle incident occurred on October 27, 2005, and that Davis was
confronted and told to watch closer, a response that was later approved by Miller. Ex. R-17.
This incident occurred earlier than the second MSHA investigation, which Respondent argues
was too far removed from the termination to support an inference of improper motivation. Aside
from a failure to check a portion of a preshift examination form, the only other incident
appearing in the copies of notes introduced-at the·hearing was that, on December 16, Davis had
failed to wear his hard hat for the third time in thirty days. Ex. R-20. This rapid escalation of
management's disciplinary response, from verbal reminders- to termination, particularly in the
absence of some other documented business justification for the action, is difficult to understand.
Moreover, there is evidence that suggests that other employees may have committed
similar transgressions and suffered no discipline at all. · Smasal testified that tire issues were
common and that the tire problems with Davis' truck were "about the same" as with the other
trucks and vehicles, rebutting the suggestion that he was ·a poor driver who caused excessive ·

2

See Ankrom v. Wolcottville Sand & Gravel Corp., 22 FMSHRC 137, 14142

(Feb. 2000).
28 FMSHRC 177

damage to tires. Tr. 180. Davis testified that many other employees had to be reminded about
wearing hard hats, some took as much or more time off from work, and other vehicles often
became stuck in mud. Tr. 31-32, 69, 217-25.
The investigation of Davis' discrimination complaint has not yet been concluded and no
formal complaint of discrimination has been filed on his behalf. As noted above, there are many
issues that should be thoroughly explored before any decision.is made by the Sec~tary whether
or not to pursue the complaint The purpose of a temporary reinstatement proceeding is to
determine whether the evidence presented by the Secretary establishes that the complaint is not
frivolous, not to determine ''whether.there is sufficient evidence of discrimination to justify
permanent reinstatement." Jim Walter Resources, Inc., 920 F.2d at 744. Congress intended that
the benefit of the doubt be with the employee, .rather than the employer, because the employer
stands to suffer a lesser·loss·in the event of an ·erroneous decision, since he retains the services of
the employ~e until a final decision on the merits is rendered. Id., 920 F.2d at 748,.n.1.1. .
I find that there is reasonable cause to believe that-Davis was discriminated against as
alleged in his complaint, and conclude that the complaint of discrimination has not been
frivolously brought.3

ORDER
The Application for Temporary Reinstatement is GRANTED. Smasal Aggregates &
Asphalt, LLC, is ORDERED to reinstate Davis to theposition that he held prior to December
29, 2005, or to a similar ·p osition, at the same rate of pay and benefits, IMMEDIATELY ON
RECEIPT·OF THIS·DECISION.

3

Respondent has requested that an adverse inference be drawn based upon the
Secretary's failure to call the MSHA investigator as.a witness. No authority has been cited in
support of the request, which is denied. As noted above, the Commission's Procedural Rules
specifically provide that the Secretary may limit presentation of the case to the testimony of the
complainant. Moreover, the inference that Respondent requests be drawn does not logically flow
from the concerns expressed about investigative techniques. .Jn addition, it is doubtful that the
investigator was peculiarly available to the Secretary.
28 FMSHRC 178

Distribution:(Certified Mail & Facsimile)
Gregory W . Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, P.O. Box 46550, Denver, CO 80201-6550
Robert C. Johnson, Esq., Husch & Eppenberger, LLC, 1200 Main Street, Suite 2300,.K.ansas
City, MO 64105-2122

/mh

28 FMSHRC 179

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

March 22 , 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNJSTRATION (MSHA),
Petitioner

CIVIl.. PENALTY PROCEEDING
Docket No. SE 2005-236-M
A. C. No. 01-00011-55330

v.
IMERYS PIGMENTS, LLC,
Respondent

Sylacauga Operation

DECISION
Appearances:

Dane L. Steffenson, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Atlanta, Georgia, 30303, for the Petitioner;
Craig Stickley, Sylacauga, Alabama, 35150, on behalf of the Respondent.

Before:

Judge Melick

This case is before me upon a petition for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C § 801 et.
seq., the "Act", charging Imerys Pigments, LLC (Imerys) with violations ofmandatory standards and
proposing civil penalties for those violations. The general issue before me is whether Imerys
violated the cited standards as alleged and, if so, what is the appropriate civil penalty to be assessed
in accordance with Section 110 (i) of the Act. Additional specific issues are addressed as noted.

Citation No. 6095190
Citation No. 6095190 alleges two "significant and substantial" violations ofthe standard at
30 C.F.R. § 56.20003 (b) and charges as follows:
The 1st level floor of the Ultra Fine Blending Building bas water being drained from lines in
several different locations which do not discharge directly into a drainage ditch. The water
is 1/8 inch deep and in places deeper and practically covering the entire ground level floor.
Also hoses and other debri [sic] have accumulated in and near work areas and travel ways.
Also on the upper levels old crates, valves, hoses and used parts are lying in work areas and
travel ways. The condition is stated not be a norm for this locatio~ and workers state they
and their supervisor just now returned from holiday vacation and this is not a normal
condition. ·People were traveling over and through the travel ways today.

28 FMSHRC 180

The cited standard, 30 C.F.R § 56.20003 (b), provides in relevant part as follows:
The floor of every workplace shall be maintained in a clean and, SQ far as possible, dry
condition. Where wet processes are used, drainage shall be maintained, and false floors,
platforms, mats, or other dry standing places shall be provided where practicable....
Inspector Billy Randolph of the Department of Labor's Mine Safety and Health
Administration (MSHA) commenced his inspection of Jmerys' Sylacauga mine on January 3,
2005. At the Ultra Fine Blending Building, a multi level complex with a concrete.ground level
floor and elevated metal walkways, Randolph found water 1/8 inch to two inches deep on the
ground level floor. The stairways and walkways were also wet. Randolph testified that he found
in one area what he believed was oil mixed with the water making that area particularly slippery
(See Exhibit G-3, pp. 1-3). These photographic exhibits corroborate Randolph's testimony in
significant respects. Jn particular, they show an area where a container or bin was located from
which Randolph·determined that there was leakage of a substance mixing with the water and
making the floor slick (Exhibit G-3, p. 1). Randolph also identified in.this.photograph footprints
on the floor in the liquid. Other photographs show a liquid, which Randolph described as water
running across the floor and, in particular, water pouring out of a drain onto the building floor
(Exhibit G-4, pp. 2-3).

I find Randolph's testimony, corroborated by the photographic evidence, to be credible and
sufficient to establish ·the first violation alleged .i n· the citation. fu this .r egard, I also. observe
Respondent's own photographic evidence showing a hose ftom:which a liquid is.pouring·o nto the
building floor (Exhibit R-1} and note that the cited· standard requires· that ~'the floor of every
workplace shall be maintained in a clean and, so far as possible, dry condition..?' Clearly the drain
shown in-Exhibit 3, page 3 and the hose shown in Exhibit R-1 could have been extendedtmthe
drainage ditches to remediate the wet conditions. Indeed, Plant Supervisor Michael Dewberry
acknowledged at hearing that the hose seen in Exhibit R-1 could have been extended to the drainage
ditch.
In reaching my :findings, herein, I have not disregarded Respondent's claim that the cited
plant had been operating for an "extended period", had been inspected by MSHA twice annually and
had never been cited-for the conditions now at issue. Respondent'thus-.claims that it had not been
given fair notice ofMSHA's interpretation of the regulation in that MSHA had not been consistent
in its enforcement, citing the case of Alan Lee Good dba Good Construction, 23 FMSHRC 995
(September 2001).
In order to prevail in this argument Respondent has the burden of proving that the cited
condition had previously been inspected by MSHA and had not been cited or otherwise identified
as violative. There.is, however, no evidence in this ·record that an MSHA inspector had ever
previously conducted an inspection at a time when similar conditions existed. Respondent's claims
in this regard are based solely on speculation. Under the circwnstances, Respondent has failed to
prove that it lacked notice based on inconsistent enforcement. Clearly, a reasonably prudent person
28 FMSHRC 181

familiar with the mining industry and the protective purposes ofthe standard would not have allowed
the amowit of water observed herein to pour across a work area as fowid herein. See Ideal Cement
Co., l2FMSHRC2409,2416(Novemberl990);BHPMineralsint'linc., 18FMSHRC 1342, 1345
(August 1996).
I also agree with the inspectors' assessment that the violation was "significant and
substantial" and ofhigh gravity. A violation is properly designated as "significant and substantial"
if, based on the particular facts surrowiding that violation, there exists a reasonably 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 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 ofdanger to.safety
- - contributed-to by the violation, (3) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861F.2d99, 103-04 (5th Cir. 198·8), affg
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 th.ere is ·an
injury. U.S. Steel Mining Co., 6 FMSHRC,1834,.1836 (August 1984), and also that the
likelihood of injury be evaluated in terms of continued normal mining operations. U.S. Steel
Mining.Co., Inc., 6 FMSHRC 1573, 1574(July1984); See also Halfway, Inc., 8 FMSHR.C 8, 12
(January 1986) and Sauthem Ohio Coal Co., lJ FMSHRC 912, 916-917 (June 1991).

In this regard Inspector Randolph testified in the following colloquy at hearing:

Q.
A.
Q.
A.

[By Mr. Steffenson]. Let's start with the water. Did you consider the water on the
first floor to be an S&S violation.
Yes, I did. I mentioned that to Charles when we came through the door.
Who is Charles?
Charles Sanders, the safetydirector. He was the companyrepresentative representing
hnerys on the inspection. And Charles, ifI remember right, had a camera with him
that night.
ADMIN. JUDGE MELICK: Well, the question was why did you label that
significant and substantial? .
TIIE WITNESS: Because I could see that people had traveled in it. I turned
to the miner's rep and Charles both and asked them had they ever had an accident out
there from people sliding in this water. I th.ink Charles said that he couldn't
remember, but the miner's rep said, Yes, I have slipped in it and fell myself.

28 FMSHRC 182

Q.
A.

Q.
A.
Q.
A.

ADMIN. JUDGE MELICK: That's your testimony on S&S?
BY l\lfR. STEFFENSON:
Do you know the water on the floor, .did that make the floor more slippery than
otherwise?
Yes, it did. And then you had to step up on metal stairs, leaving that floor going up
to the other levels. Water and the metal is very -slippery to your feet.
And what type of injury did you envision might occur?
Lost work days and restricted duty at the least.
From what type of injury or accident?
From sliding down, broken ann, .twisted knees, ligament damage to your knees,
lacerations, bruising.

(Tr. 36-37)
While this testimony is not, in itself, very elucidating, reasonable inferences may also be
made from the record to establish that reasonably serious injuries could likely result from the cited
conditions and that the violation was of high gravity.

I also find that the violation was a result of significant negligence.. It may reasonably be
inferred that the slippery conditions were obvious and that Respondent could easily have remedied
the conditions by extending a hose to the drainage ·d itches.
The second violation charged in the citation at bar relates to debris found on the upper level
of the facility. Jn relevant part, the cited standard provides that ''the floor of every work place shall
be·maintained in a clean... condition." While-acknowledging the existence of the trash and debris
as cited, the Respondent maintains that.the .d ebris (trash) was only recently placed where it was
found and that the area was not a "workplace" as required by the standard at bar. However, since
the trash was admittedly placed for temporary storage, I find that the cited area was, indeed, a
"workplace". Jn this regard Plant Operator Robert McDaniel acknowledged that the trash was
intentionally placed where it was found.

I also find that the violation was "significant and substantial" and of high gravity. In this
regard Randolph credibly testified in the following colloquy at hearing:
Q.

A.
Q.
A.

Q.

[BY l\lfR. STEFFENSON] Let's go to the second floor material and you considered
the debris and material laying on the walkway to result in an S&S violation:
Yes, I did.
Why?
If you trip and fell, you're falling into other machinery, electrical boxes, all kind of
machinery along those floors. .You're falling on other debris,. they had wooden crates
that you could trip and fall into. These would cause lacerations and bruising enough
to cause lost work days or restricted duty.
And did you believe that an accident of thaf nature was reasonably likely?

28 FMSHRC 183

A.

Yes, I did, due to .the fact of the number of people that's traveling it and the
frequency they were traveling it, and when I interviewed them and asked them how
often, that' s how I determined it.

(Tr. 37-38)
Respondent also acknowledged that two miners were working when the citation was issued.
While exposure to the hazards to two miners .is significant, consideration must be given to the
exposure to miners during continued operations.
Inspector Randolph found the operator chargeable with ''moderate" negligence. According
to Randolph the cited material had "a lot ofdust on it" thereby suggesting that it had existed "a pretty
good while". Jn addition, it is undisputed that there were no records at the mine to verify that the
required workplace examinations had been conducted in the cited area. I find Randolph's testimony
to be credible in this regard and conclude that the Secretary' s negligence findings are proven.

Citation No. 6095193
Citation 6095193 alleges a "significant and substantial" violation ofthe standard at 30 C.F.R.

§ 56.11012 and charges as .follows:
Two openings from which a person or material could fall were found on the tops of the
Blending tanks in the Ultra fines building. The openings were not marked or barricaded or
covered or provided with railings. The plant operators state they have been collecting
samples from these 2 and Yz feet ·in diameter (approximate) openings and leaning· into
openings to get.samples and not wearing fall protection. Also a hazard to any. clean up or
maintenance person of falling into the openings· are [sic] possible since the openings were
in walkways. Lids were readily available to cover the openings but were not in use: The two
plant operators state that they have been on vacation during past several days and that they
normally cover the holes, but they think people filling in during their absence have left-the
lids off. Termination was agreed that railings will .be installed to also provide protection
while persons are getting samples of material from the holes. This is the third time in two
years this standard has been cited at this mine site.
The cited standard provides as follows:
Openings above, below, orneartravelways through which persons or materials may fall shall
be protected by railings, barriers, or covers. Where it is impractical to install such protective
devices, adequate warning signals shall be installed.
It is undisputed that the cited openings existed as charged and that they were not marked with
warning signals, barricaded or covered (See Exhibits G-4, pp 1-4). I accept the testimony of
supervisor Michael Dewberry that the openings were 28 to 30 inches and 22 to 24 inches in diameter
respectively. Plant Operator Robert McDaniel also acknowledged at hearings that persons could fall

28 FMSHRC 184

through these openings. Accordingly, .they were purportedly directed to wear fall protection when
working around the openings. Clearly, however, the violation is proven as charged.

I also find that the violation was "significant and-substantial" and of high gravity. As noted
by Inspector Randolph, if the tank into which one would fall was empty, the drop off would be
sufficient to cause fatal injuries. He testified that on the other hand, if the tank had liquid wi~
there was the risk of drowning. Although he incorrectly determined the depth ofthe drop-off, I find
Randolph's testimony, adjusted to reflect the lesser distance of a fall, to be sufficient to support
findings of a reasonable likelihood of serious injuries.
I also find that the Secretary has established that the violation was the result of high
negligence. Inspector Randolph credibly testified in this regard, that the required workplace
examinations had not·been recorded and that there were other·uncovered holes at the plant. I note
that Plant Operator McDaniel testified that he had removed the cited covers earlier on the shift.
Respondent notes-that the covers had therefore been removed for no more than two hours and .55
minutes thereby suggesting-.lower gravity and negligence. I find, however, that leaving such
conditions for that period of time rather amplifies the gravity and negligence. Respondent·also
suggests that no one would have been exposed to.the open holes. He fails, however, to consider-t hat
the inspection party itself was exposed to the hazard.

In reaching my conclusions herein, I have not disregarded the evidence that Plant Operator
McDaniel claimed that he had removed the covers earlier the same daythey were·cited. However,
because they were le.ft uncovered for at. least two ·hours and 55 µiinutes and because of the number
of other uncovered holes found at the plant, I find the operator chargeable with at least ·moderate
negligence.
Citation No. 6095226

Citation·No. 6095226, as amended, alleges a "significant and substantial" violation of the
standard at 30 C.F.R. § 56.15005 and charges as follows:
The contract miner,.laying out the drill pattern had stepped offthe drill pattern within 4 feet
of the highwall face. He had traveled parallel to the drop-off for approximately 35 feet. A
fall of 25 feet to a water pond below which is stated.to be 10 feet deep was likely. Tracks
were measured and were 4 feet from the edge. Loose rocks were on the highwall edge
increasing a chance of falling. The employee states he was told to stay 6 feet back from the
edge and wear fall protection if needed. He also was told to mark off drill pattern which is
closer than 6 feet to the edge. He had a safety harness in his truck and a 6 foot lanyard. A
longer lanyard would be needed and a system to·anchor to also is needed if, ·to work this
close to a fall hazard. This company has been cited before within the past year for this same
standard.

28 FMSHRC 185

The cited standard provides in relevant part, that ..[s]afety belts and lines shall be worn when
persons work where there is danger of falling".
The credible and essentially undisputed evidence shows that an employee of a contractor
engaged by Respondent was laying out a drill pattern above the highwall as close as four feet from
the highwall face. The drop off from the top ofthe highwall was about 25 feet to a pond which was
about 10 feet deep. The contractor' s employee was not then wearing his six-foot safety harness nor
any other safety belt or line. The ground where he was working was also rocky and unstable. I find
that this evidence supports a violation of the cited.standard.
Respondent maintains however, that even assuming, arguendo, that there was a violation
since the cited miner was employed by an ·independent contractor it was not responsible for the
violation. 1 The Commission in Twenty mile Coal Co., 27 FMSHRC 260 (March 2005) (appeal
docketed No. 05-1124 D.C. Cir., argued February 14, 2006), set forth four factors to consider in
determining whether amine operator should be held liable for a violation committed by its contractor
i.e. (I) which entity was in the.best position to prevent the violation; (2) the extent ofthe operator 's
involvement in relevant activities; (3) whether the operator contributed to the violations; and (4)
whether any criteria in the Secretary' s enforcement guidelines ,were satisfied. The Secretary's
guidelines include (a) .whether.the operator·contributed to the violation·or its continued·existence;
(b) whether the operator's employees were threatened by the violation; and (c) whether the operator
had significant control over the condition requiring abatement.
In the instant case, I find that the Respondent was in the best.position to have .prevented.the
violation. The contractor' s employee was admittedly working at the mine without the presence of
direct supervision· by his employer. The Respondent, on the other hand, had ·both hourly and
supervisory personnel at the mine site in the general vicinity of the highwall. At the same time,
however, it was the contractor's responsibility to properly train, supervise and discipline its
employee - - matters relevant to the prevention of a violation.

I also find that Respondent was involved in initially establishing the drill pattern to be
followed by the contractor's employee. The evidence shows that Respondent's personnel marked
the back line to initially locate where drill holes should be placed. It is apparent however, that once
the back line was established, Respondent's employees left the area and the contractor's employee
was then left alone to actually mark the drill holes. At that point, the Respondent was no longer
directly involved in the activities of the contractor' s employee.

I find, however, that the Respondent did not significantly contribute to the violation. Indeed,
1

While not essential to proving the violation, the allegation in the second to last sentence
of this citation is in fact disputed ~d the credible evidence indeed shows.that a six foot lanyard
would be adequate to provide fall protection. The credible evidence also shows that a person could
stand in a safe area (acknowledged to be at least six feet from the edge of the highwall), and drop
or toss a colored rock to mark drill holes closer than six feet to the edge of the highwall.
2&- FMSHRC 186

I find that it did not contnl>ute at all. The driller cited herein was a trusted and experienced
professional who performed his tasks without supervision. He was trained by both his employer and
the Respondent in the need to wear fall protection when working closer than six feet to the edge of
the highwall. The credible evidence also shows that the use of such fall protection was feasible and
that alternative safe methods of marking drill hol.e s located within six feet of the ·edge of the
highwall were both feasible -a nd common practice in the industry.
Finally, the Secretary acknowledges that the cited contractor's employee did not place any
ofthe Respondent's personnel in danger: Following the Commission's criteria and on balance then,
I do not find that lmerys should be held responsible for the violation at bar.~ Imerys was not
appropriately charged for its contractor's violation and the citation-must accordingly be vacated.

Citation No. 6095227
Citation No. 6095227, as amended, alleges a "significant and substantial" violation of the
standard at 30 C.F.R. § 56.14107(a) and charges·as follows:
The Caterpillar D-10 dozer had 4 V belts and-sheaves not guard [sic] against contact. There
are four belts on the fan water pump drive and,one on the alternator; and one-air conditioner
drive belt. The operator ofthe dozer states he enters the cab in the mornings with the engine
running and the belts turning, he also exits the eab with the cab running, taking breaks
occasionally. A hazard of the operator slipping on the metal stairs is likely and contactirig
the V · belts through the approximate 2 and·Yz foot high and 4 Yz foot opening is·possible.
Injuries would likely result in serious cuts to the hands.
The cited standard provides that "[m]oving machine parts shall be guarded to protect persons
from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings,
shafts, fan blades, and similar moving parts that can cause injury."
Respondent again appears to claim lack of fair notice regarding application of this standard
to the facts herein. It again appears to rely upon a claim of inconsistent enforcement practices by
MSHA (i.e. that MSHA had previously inspected and approved of the dozer operating without a
guard) but argues only on the basis ofspeculation, unreliable hearsay and off-the-record "evidence".
This less than credible argument is countered by the first-hand observations of ChiefUnion
Shop Steward Larry Smith. Smith credibly testified that during an MSHA inspection two or three
years before the instant citation was issued, MSHArequired that this operator install guarding over
the same area now cited (Tr. 198-201 ). I find Smith's testimony credible and therefore conclude that
the Respondent had -actual notice of the requirements of the cited standard. I also note that the

2

It is noted that the contractor for whom the cited employee was employed was separately
cited and assessed a penalty on these facts for the same violation.

28 FMSHRC 187

Respondent was provided interpretive notice through·a picture in the guarding guidebook showing,
according to the undisputed testimony of Inspector Randolp~ that ''that type of component has to
be guarded" (Tr. 115).. Under the circumstances, I find Respondent's claimed lack of fair notice to
be without credible support.
There is clearly a dispute regarding the level of guarding provided in the cited area.
According to Inspector Randolph the cited V-belt and sheaves were unguarded to such an extent that
they presented a hazard of burnt fingers and amputation of fingers. In particular, he noted that the
bulldozer operators would relieve themselves while standing on the track adjacent to the alleged
unguarded V-belts and sheaves thereby placing them within close proximity of the moving belts.
On the other hand, according to Mine Manager David Jarvis, the cited .belts and sheaves were
protected from exposure by their location some two feet inside the engine compartment and by a
water pipe (See Exhibits G-5 and R-6). In addition, the direction ofrotation ofthe cited sheave (See
Exhibits G-5 and R-6) would preclude the existence of a pinch point at the location-where the belts
rounded the sheave.3

I find that this dispute can be resolved.by reference to the photographs in evidence (See
Exhibits G-5 and R-4, 5 and 6). These photographs show that the cited belts were indeed not
guarded as required by the cited standard. However, because of.the partial protection afforded by
the noted water pipe and the fact that the alleged pinch points were .remotely located, I do not find
that reasonably serious injuries were likely to result from the cited·condition. I therefore find that
the violationwas neither "significant or substantial'' nor ofhigh.gravity. However, because I find that
Respondent was previously required byMSHAto have guarded the area cited herein, it thereby had
clear notice of the requirement of the standard and is therefore chargeable with significant
negligence.
Civil Penalties
In assessing a civil penalty under Section 110 (i) of the Act, the Commission and its judges
must consider the operator's history of previous violations, the appropriateness ofsuch penalties to
the size of the operator charged; .whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve compliance after notification of the violation. According
to the documents attached to the pleadings, Imerys does not have.a serious history of violations and
is a medium size business. There is no dispute that it achieved appropriate compliance after
notification ofthe violations herein. Gravity and negligence have been previously discussed. There
is no evidence that the penalties herein would effect. the operators .ability to continue in business.
I have considered the above statutory factors _a nd conclude that the civil penalties assessed herein are
appropriate.

3

Inspector Randolph could not recall which direction the sheave rotated but claimed there
would, in any event, be a pinch point below the area depicted in the photographs. I find that such
area to be so remote as to indeed be protected by its location.

28 FMSHRC 188

ORDER
Citation No. 6093470 was vacated by the Se·cretary prior to hearings. Citation No.
6095226 is hereby vacated. Citations No. 6095190, 6095193, and 6095227 are hereby affirmed
and hnerys Pigments LLC is directed to pay civil penaltiesof$500.00, $1,200.00 and $800.00,
respectively for the violations charged therein within 40 days of the date of this decision.

Gary Melick
Administrative Law Judge
(202) 434-9977
Distribution: (Certified Mail)
Dane L. Steffenson, Esq., Office of the Solicitor, U.S. J:?ept. of Labor, 61 Forsyth S.treet, S.W.,
.
Room 7Tl 0, Atlanta, GA 30303
Craig S. Stickley, Imerys Pigments, LLC, Sylacauga operation, P.O: Box 330,.'1655 Gene
Stewart Blvd., Sylacauga, AL 35150
·
/lh

28 FMSHRC 189

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

March 22, 2006
SECRETARY OF LABOR,

CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEVA 2003-149
A.C. No. 46-08553-03569

v.
ELK RUN COAL COMPANY, INC.,
Respondent.

Black King I North Portal

DECISION
Appearances: Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department o{Labor,
Arlington, VA, for the Secretary
David J. Hardy, Esq., Spilman, Thomas & Battle, Charleston, WV, for the
·
Respondent ·
Before:

Judge Weisberger

On December 12, 2005, the Commission issued a decision in this matter vacating the
initial decision in Elk Run Coal Co., Inc., ("Elk Run T}, 26 FMSHRC 761 (Sept. 2004), that the
violation of30 CFR § 75.220(a)(l), as a result of Elk Run's failure to comply with its roof
control plan, was not significant and substantial. Elk Run I, 26 FMSHRC, filllIDl, at 762-769 In
addition to vacating the initial decision, the Commission remanded the pro.ceeding " ... for further
consideration." Elk Run Coal Co., Inc. ("Elk Run If') 27 FMSHRC 899 (December 2005).

I. Elk Run, Il. supra

In Elk Run II, ~ 27 FMSHR.C, fil!lmb the Commission reiterated Commission
precedent established in Mathies Coal Co., 6 FMSHRC 1(Jan.1984) as follows:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard- that is, a measure of danger to safety- contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be a
reasonably serious nature.
The Commission took cognizance of the finding in the initial decision that the first two
elements of Mathies had been met. With regard to the third element, the Commission cited the
notation in the initial decision of the inspector's testimony regarding the dangers associated with
28 FMSHRC 190

retreat mining in that numerous people have been killed as a result of that process. The
Commission also referred to the finding in the initial decision that the presence of three
incomplete rows without supporting timbers increases the risk of exposing miners to a roof fall.
The Commission then went on to quote the initial decision which had found " ...that there was not
any evidence adduced that the roof was·undergoing any specific type of stress that could lead to a
roof fall. Nor does the record contain evidence that the roof had ever fallen in this particular
section of the mine." Elk Run I, 26 FMSHRC, supra-at 768-769.
The Commission noted the conclusion in the initial decision that the·Secretarybad failed
to establish·by a prepondeFan.ce of the evidence that there was a reasonable likelihood of a roof
fall. The Commission, relying on Bellefont Lime Co. Inc. 20 FMSHRC 1250, 1254-55 found
error in the conclusion in the initial decision that the Secretary had failed to meet her burden by
not presenting evidence of roof falls or stress on the roof in that the analysis was"... based solely
on mine conditions prior to the violation." Elk Run II, 27 FMSHRC, ~ at 906. The
Commission in Elk Run II, also took cognizance of the conclusions in Elk Run 1, fil:llID!; that the
violation contributed to the hazard of a roof fall, which could have caused serious·injury to
miners, and that the gravity of the violation was relatively high.
The Commission explained its conclusion as follows:
This is not to say.that a history ofroof falls in amine,is not pertinent to:.the
consideration of the reasonable likelihood of.an injury. [footnote omitted] The
commission has long held that whether a particular violation is S&S must be · ·.
based on the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498, 501(Apr.1988). [footnote omitted] However, conditions in the
mine prior to the citation are not dispositive of the S&S designation.[footnote
omitted] See also Buffalo Crushed Stone, Inc., 10 FMSHRC 2043, 2046 (Oct.
1994) (in considering whether the failureto·provide a berm.at a stockpile was
S&S, the fact that the stockpiles flat .and that there were no equipment problems
does not establish that an incident was not reasonably likely to occur).
We thus agree with the Secretary, Sup'l Br. At 1-2, that the absence of an
injury-producing event when a cited practice has occurred does not preclude an
S&S determination. See Arch ofKentucky, 20 FMSHRC 1321, 1330 (Dec. 1998)
(the Secretary does not have to show that a violation caused an accident in order
to prove that a violation was S&S); Buffalo Crushed Stone, 10 FMSHRC at 2046
(the absence of previous instances of overtravel does not establish that an accident
would not be reasonably likely to occur, given the nature of hazards presented). It
follows then, as the Secretary argues, that the absence of evidence of stress or
prior roof falls cannot be determinative of whether the cited condition is
reasonably likely to cause an injury. See also Blue Bayou Sand and Gravel, Inc.,
18 FMSHRC 853, 857 (June 1996) (operator's assertions that it had no history of
accidents and that equipment had been driven for many months in cited condition

28 FMSHRC 191

is not dispositive of S&S determination).

In the instant proceeding, the presence of adverse roof conditio~ may
increase the likelihood of a roof fall but the abs~ce of such adverse conditions
does not necessarily eliminate the possibility that a roof fall might occur when an
operator fails to follow its roof control plan. Moreover, requiring the Secretary to
prove an S&S violation by establishing that the mine roof is under "any specific
type of stress that could lead to a roof fall," 26 FMSHR.C at 768-69, places an
onerous burden of proof on the Secretary. Similarly, any implication that the
Secretary needs to show that there had been a roof fall in this section of the mine
before a violation can be designated S&S wold unreasonably restrict the ability of
the Secretary to prove that a·roof control violation is S&S. None of these
evidentiary points detracts from the existing core requirement that a roof control
plan take into account the specific conditions of the mine in seeking to prev-ent
roof fall accidents [footnote omitted] and the Congressional intent to provide
comprehensive protection against roof falls through adherence to.MSHAapproved safety measures tailored to the individual mine. (Elk Run, Il, ~ at ·
906-907).
The Commission went on to hold that, "[o ]n remand, ... the judge must weigh the record
evidence and, asswning that normal mining were to continue, determine whether any miner on
any shift would have been exposed to the hazard arising out of the violation, so as to create a
reasonable likelihood of injwy." Elk Run D at 907;

II. Discussion
Based upon the Commission's holding, I find that prior to the violatio~ the lack of
specific stress in the roof that could lead to a roof fall is not dispositive ofthe significant and
substantial designation. Further, taking cognizance of the emphasis placed by the Commission in
Elk Run II, ~ on the need to·assume the continuation ofnonnal mining work, I reiterate my
previous finding that in Elk Run' s operation of retreat mining, generally roof support is
weakened due to this type of mining. Further, Elk Run's retreat mining had left three rows of
incomplete blocks which exacerbated the hazard of stress on the roof. Also, I note that the fact
that breaker post had not been installed to prevent any roof fall ·c ontinuing outby, further
contributed to the hazard. I thus reiterate the initial finding that the gravity of the violation was
relatively high. Considering the above facts, along with the analysis set forth by the Commission
above, in Elk Run II, supr~ and the continuation of normal mining, I find that the violation
herein created a reasonable likelihood of injwy by exposure of miners in the area in question to
the hazards of a roof fall.
Therefore, upon reconsideration, for all of the above reasons, and following the holding
and analysis of the Commission in Elk Run II, supra, I am constrained to find the violation herein
was significant and substantial.

28 FMSHRC 192.

III. Penalty
The conclusion that the violation herein was significant and substantial, is consistent with
the initial finding that the gravity of the violation was relatively high. The CommissiQn in its
remand, Elk Run II, ~ did not order a reconsideration of the additional factors set forth in
110 (i) of the Act I thus find that it is not necessary to reassess the penalty set forth in the initial
decision, and thus reiterate my initial finding that a penalty of $1,000 is appropriate for the
violation found therein.

. .
Distribution: (Certified)

Daniel M. Barish, Esq., Office of the Solicitor, U.S ..Department of Labor, 1100 WilsonBlYd..,
22nd Floor West, Arlington, VA 22209-2247
·
.
·
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd, East, P.O. Box
273, Charleston, WV 25321

/lp

28 FMSHRC 193

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, NW, sum: 9500
WASHINGTON, DC 20001

March 24, 2006
WILLIAM ARTIIUR BOWEN,
Complainant

v.
SIDNEY COAL COMPANY, INC,
Respondent

DISCRIM.1NATION PROCEEDING
Docket No. KENT 2005-249-D
PIKE CD 2005-03 and PIKE CD 2005-04
Mine ID: 15-09724
#1 Prep Plant

DECISION
Appearances: Wes Addington, Esq., and George Sanders, Esq., Appalachian Citizens Law
Center, Inc., Prestonsburg, Kentucky, on behalf of the Complainant;
Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, Charleston, West
Virginia, on behalf of the Respondent.
Before:

Judge Melick

This case is before me upon two complaints of discrimination filed by William Arthur
Bowen pursuant to Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq., the "Act." The complaints were consolidated into the captioned case. Mr.
Bowen alleged in his initial complaint to the Department of Labor's Mine Safety and Health
Administration (MSHA), filed February 2, 2005, that Sidney Coal Company Inc. (Sidney)
violated Section I 05(c)(1) of the Act when he was suspended on January 31, 2005, ''because (he]
complained about unsafe conditions at the mine." 1 Mr. Bowen stated in his second complaint

1

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

No person shall discharge or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the exercise ofthe statutory
rights of any miner, representative of miners or applicant for employment in any coal or
other mine subject to this Act because such miner, representative of miners or applicant
for employment has filed or made a complaint under or related to this Act, including a
complaint notifying the operator or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger or safety or health violation in a coal
or other mine, or because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential transfer under a standard
published pursuant to section 101 or because such miner, representative of miners or
applicant for employment has instituted or caused to be instituted any proceeding under
28 FMSHRC 194

filed with MSHA on February 7, 2005, that "[a]fter filing a discrimination complaint at the Mine
Safefy and Health Administration-on February 2, 2005, I received a letter from the company on
February 3, 2005, stating that I was terminated."
This Commission has long held that a miner seeking to establish a prima facie case of
discrimination under Section 105(c) of the Act bears the burden of.persuasion that he engaged in
protected activity and that the adv~rse action complained of was motivated.in any part by that
activity. Secretary on behalfof Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on grounds, sub nom. Consolidation·Coal Co. v. Marshall, 663 F .2d 1211
(3rd Cir. 1981 ); and Secretary on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803,
817-18 (April 1981 ). The operator may-rebut the prima f acie case by showing either that no
protected activity occurred or that the adverse action was in no part motivated by the protected
activity. If an operator cannot rebut the prima facie case in this manner, it may nevertheless
defend affirmatively by proving that it would have taken the adverse action in any event on the
basis of the miner' s unprotected activity alone. Pasula, supra; Robinette, supra. See also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F .2d 639, (4th Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 194, 195... 196 (6th Cir. 1983)(specifically approving the . ·
Commissions' Pasula-Robinette test). Cf. NLRB v. Transportation Management Corp., 462 U.S.
393, 397-413 (1983) (approving nearly-identical test under National Labor Relations Act.)

Mr. Bowen began his employment with Sidney in 2001 or 2002 as a beltman and .
continued in that position until his departure. As a beltman he ordinarily worked a 12 hour shift,
cleaning, maintaining and repairing the beltline. During the last three months of his employment
with Sidney; he had been working on the belt in the areaknown.'a s the R-2 cut-through. This was
an area about 2,000 feet long and included a road about 40 feet wide and a 48 inch belt (the R-2
belt) passing beneath a highwall 180 to 200 feet .in height: The highwall was nearly vertical and
was composed of sandstone, slate and coal. It was not benched and it appears undisputed that it
presented a hazard to exposed personnel. Indeed, a notice had·been·posted by Sidney sometime
during 2003, warning employees not to walk through this-area and to request a ride because of
the dangers presented. Some eight days before Bowen's separation from employment on·
January 31, 2005, a truck the beltmen had been using was removed and the beltmen were
directed to obtain rides and not to walk the cut-through.
According to Bowen, during this eight day period when he would call his foreman, Tony
Adkins to request a ride, Adkins would refuse the request and tell Bowen to walk the R-2 cutthrough. Bowen testified that he first complained to Adkins about his failure to transport him
through the R-2 cut-through area about five or six days before his separation. He purportedly
informed Adkins that it was unsafe because a lot of material was falling off the ·highwall.
"[T]here was a lot of ice, large pillars of ice falling from the highwall as well as rocks and other

or related to this Act or has testified or is about to testify in any such proceeding, or
because of the exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right afforded by this Act.
28 FMSHRC 195

materials sliding off the highwall {Tr. 49). Plant.mechanic Tommy Varney and bulldozer
operator Jeff Brock confrrmed that there was evidence of materials falling off the highwall (Tr.
188 and 250). Bowen claims that he continued for approximately six days asking for rides
through this area and Adkins continued to refuse the requests (Tr. 56).
Bowen testified that he also complained in safety meetings about the condition of the
highwall and, more particularly, he complained to Adkins in a safety meeting and asked if they
were going to do anything about the condition of the highwall (Tr. 57). Adkins pwportedly
responded that the·company was working on it (Tr. 58).
In response to these claims of protected activity, Respondent Sidney notes that Mr.
Adkins denied that he ever refused Complainant's request for a ride (Tr. 276).- Indeed, Adkins
testified that each time Bowen called and asked him for a ride off the hill, he always picked
Bowen up (Tr. 276). Sidney also challenges the credibility of the Complainant's allegations
based upon his apparent inconsistent testimony. In.this regard Respondent Sidneynotes·thatthe
Complainant testified during his deposition that there were 30 to 40 times he requested a ride
from Adkins and was denied (Tr. 112). During his testimony at hearing however, Complainant
first stated that he asked for a ride close to 18 times during the last eight days of his employment
and was denied each time by Adkins (Tr. 108). The Complainantlater again changed.his .
testimony and stated it was actually only four days in which he asked for a ride three times a day
and did not receive a ride (Tr. 111). Bowen testified that, on all.12 occasions.when he requested
a ride, Adkins refused and told him to go ahead and walk the cut-through (Tr. .111 ).
Respondent Sidney also notes that the Complainant claimed that each time·Adkins .d enied
him a ride, he (Bowen) spent 10 to 15 minutes describing.in detail the dangerous conditions of
the highwall in the cut-through (Tr. 157). Complainant testified that, in response.to this 10,..to--15
minute description, Adkins would tell him to "just walk it" (Tr. 157). Complainant claims.he ·
had conversations with Adkins about the condition ofhighwall "several times" during the eightday time period (Tr. 157). Respondent Sidney notes that.Bowen failed to.present any
corroboration for any such conversations ..
Indeed, Sidney notes that the Complainant claims that he made these requests over the
radio, which would have been heard by six to eight people who were also on his channel (Tr.
111-112). It also notes that the Complainant further asserted that he told co-workers Tommy
Vamey, Tercy Ratliff, Doug Rutherford, and Joey Scott, and Plant Superintendent Billy McCoy
about Adkins not giving him rides through the.R-2 cut-through (Tr. 48). Respondent .a rgues that
in spite of these assertions by the Complainant there was no testimony to support either that
claim or Complainant's allegation that he was refused rides by Adkins. .

In addition, Tommy Varney, the plant mechanic, heard the Complainant ask for rides
"many times" over the radio prior to January 31, 2004, (Tr. 197). According to Varney, Adkins
"always came over to get him, far as what I know" {Tr.: 198). Electrician Douglas Rutherford
testified that he heard the Complainant ask Adkins for a ride through the cut-through, and had

28 FMSHRC 196

never heard Adkins refuse him a ride (Tr. 201). Wayne Grimmet was .the dozer operator who
worked on the same shift as the Complainant during the time in question. Grimmet testified that
he never heard Mr. Adkins refuse to give the Complainant a ride (Tr. 208). According to
Grimmet, when Bowen called for a ride, Adkins would typically respond that he would be there
within a few minutes (Tr. 209).

In a somewhat related complaint, Bowen testified that he also spoke with, foreman,
Rocky Fitzpatrick, and Plant Superintendent Billy McCoy about the conditions of the highwall
and also spoke out during safety meetings, which were held once a week (Tr. 38 and 42).
Adkins denies ever receiving .any complaints from Bowen about the highwall (Tr. 310-311 ).
Fitzpatrick denies receiving any written complaints from the Complainant and did not recall any
specific conversations about the highwall or cut-through, other than general conversation in the
lunchroom (Tr. 266-268): McCoy testified that he did not recall any safety complaints or
discussions with Complainant about the highwall (Tr. 333-334).
Joey Scott, who runs the thickener at the·mine, recalled Bowen discussing the highwall
but that " [e]verybody talked about" the conditions (Tr. 176- 177). Scott testified that the
condition of cut-through was addressed during safety meetings which were conducted by
foremen (Tr. 174-175). ·Indeed, according to S~ott, Tony Adkins was the·foreman who discussed
the condition of the highwall during the safety meetings, "and everyone else started talking about
it" (Tr. 175-176).
Tommy Varney testified that the condition ofhighwall and the R-2 cuMhrough were
~ussed at safety meetings, and "the foremen had told us of any changes or what to look for,

any new condition" (Tr. 190). Varney recalled one occasion when Bowen complained over the
radio that ice fell and came close to hitting him (Tr. 191). According to Varney, other miners
talked about the condition of the wall and that the condition of the wall "was common ·
knowledge" (Tr. 192-194).
Within the above framework of evidence, I find that indeed safety complaints were made
by Bowen as well as many others regarding the condition of the highwall and that Adkins had to
have been aware of them.2 While it is clear that such complaints were made, it is also clear that
it was common knowledge that the highwall was not safe. Under these circumstances, however,
such complaints would hardly be expected to elicit a retaliatory response against only one person,
especially one so severe as to result in termination. For purposes of this decision, I also consider
the undisputed evidence of Bowen' s persistent requests to float out bulldozer operator Grimmet
to be a protected "safety complaint." These requests are discussed later in this decision.
Following the Pasula analysis, the next issue to be detennined is whether Bowen's
protected activity resulted in adverse action. In this regard, it is essential to cansider, in

2

I do not, however, necessarily credit Bowen' s testimony regarding the frequency of his
being denied rides through the cut-through.

28 FMSHRC 197

particular, the testimony ofBowen.and Adkins and to determine the weight to be given that
testimony. According to Bowen, on January 31, he was working the 7:00 p.m to 7:00 a.m shift ..
He testified that Adkins drove him to the top of the hill past the cut-through along with bulldozer
operator Wayne Grimmet. The events that followed were described by Bowen at trial in the ·
following colloquy:
Q. [By Mr. Addington] What happened once you arrived at the Impound:
A . As we was getting out of the truck, Wayne Grimmet turned ~o me and asked me ifl
cared to come back at lunchtime and float him out, and I told him I didn't care a bit to.
And at that time, I heard the truck door slam, and I turned, and Tony yelled for me to
come to him. I walked.to him. We approached the rear of the vehicle and he proceeded
over toward the belt structure, and I'm guessing approximately 16, 18 feet from the rear
of the vehicle. He first told me to; very angrily grabbed a shovel, and go to:R.-2 belt and
shovel the spill that was there. And I turned to do that And as I was walking away, he
told me, ''Wait a minute. I'm not thought." And he started yelling at me over
aggravating Wayne.
He said, "You've aggravated Wayne for three days to float him out. If I wanted him
.floated out, I'd see to it he got floated.out" something to that effect.
I told him that Wayne just asked me to come back at lunchtime and fl.oat him out. He
more or less told me that was not.true. And I told ·him that I didn't understand why he
was doing·this, because this was a normal duty that I had to float the operators out. There
. had to be more to it than that. It's not normal to reprimand an employee for doing things
that he normally did on a regular basis as well as offering to hip someone. That I had
made, you know, several complaints about .the highwall. I said, "Tony, you've not been
picking me up every time I've ask you to. You're not picking me up. What's the
problem?"
He screamed at me and told me that he was the boss, I'd do what he tells me to do, that I
don't tell him what to do, something to that effect.
And I told him I was not trying to tell him what to do, I was trying to find out what was
wrong, why he wasn't picking me up.
He told me that he was through with me, and told me I was fired. He said, "You're
fired." He said, "I'm through with you."
I did get upset at that comment and I said, "Stick it in your ass." I said, "You don't have
the authority."

28 FMSHRC 198

And he told me that he was going to take it to Billy McCoy the next day and have me
fired.
I asked him then, I said, "Just go ahead and take me off the hill."
And he started stepping backward and said, ''No. I will not, " and turned and walked
away from me and walked back toward his truck.
At that time I turned and started off the hill.'
Q.
A.
Q.

During the conversation on the hill, did you tell Tony Adkins you quit?
No, sir. I did not.
At the point that conversation ended, what did you think your employment status
was with Sidney Coal?
That I was fired.
A.
Q.
Where did you go after the conversation with Tony Adkins ended?
A.
Proceeded through the cut-through. I think I just started·through.the cut-through
about the R-3 belt head somewhere through there. Tony went by the Gary
Hatfield. I proceeded off the hill to the foreman's office, or the lobby area.
Q.
Now, why did you go to the lobby area, foreman office?
A.
To get my personal belongings.
Why did you get your personal belongings?
Q.
A.
Because I thought I no longer had a job.
Q.
Mr. Bowen, where did you go once you went back down to the foreman' s
office/lobby area?
A.
I went into the women's restroom.
Q.
Arthur, is that used as the women' s restroom?
A.
No, sir.
Q.
What is that room?
A.
It contains lockers that, I think Tony Adkins might have a locker in there and
Rock Fitzpatrick, myself, Terry Ratliff. That~ s generally where me and Terry
change.
So, your locker room wasn't located in the changing room?
Q.
A.
No, sir, it was not.
Q.
And did you get your belongings out of your locker?
Yes, sir. I did.
A.
Q.
Then where did you go?
A.
I come out the women's door, bathroom door, and as I come out the door -- well, if
I may back up. As I came into the lobby area, Tony hollered for me on the radio and
advised me that once I get to the R-2 belt head call for him
and he would come and pick me up. I then advised him I was
already in the foreman's office. And he told me that he
would be right there. I got my things, come out, and as I

28 FMSHRC 199

was coming out of the women's restroom Q.
Let me stop you for a second. You said Tony called
you on the radio and asked you when you got to the R-2
cut-through to call and he would come and pick you up.
A.
That's correct.
Q.
What time was this when he called?
A.
Approximately 7:30 thereabouts. I don't know
exact.
Q.
Did he usually call for you to tell you to call
when you needed to be picked up?
A.
No, sir.
Q.
Had he ever called for you?
A.
No, sir.
Q.
When did you usually call for him?
A.
Approximately ten or fifteen minutes before break
and lunch. That would be 15 till'lO:OO, 15 till 1:00, 15
till 5:00, approximately.
JUDGE MELlCK: Do you have portable radios?
A.
Yes, sir.
JUDGE MEUCK: Each miner had his own personal
radio?
A.
Yes. Similar to what we carry as a police officer.
Two-way radios.
Q.
You said you would normally call before the first
break.
A.
Yes.
Q.
And that's approximately when?
A.
Ten to fifteen minutes till 10:00.
Q.
Would you ever call for a ride before that?
A.
No, sir.
Q.
So, why would Tony Adkins call you at 7:30?
A.
I felt like that it was because of the incident on
the hill.
Q.
You can continue. Once you got your stuff out of
your locker, where did you go then?
A.
Stepped through the women's restroom door, and at
that time Tony came through the front door of the lobby. He
started, not really yelling, but with a loud voice continued
to talk about what had happened up on the hill.
JUDGE MELICK: What did he say? What were his
words?
A. That I was trying to tell him what to do and that he was the boss, and that he wasn't
going to stand for that.. I told him I was not trying to tell him what to do. And I pointed

28 FMSHRC 200

out the fact that he was yelling at me. And I told him I said, "That's what I have a
problem with there with you right now, you're yelling at me." And I said, "If you don't
want me to yell at you, don't yell at me." We passed· about halfway through the lobby
during this time. I walked over to the exit door. Tony was still talking to me very
angrily. I had turned toward him, he was standing-about at the superintendent's office
door, and he was still yelling. I then yelled back and told him that I didn't have to take it,
he had done already fired me and that I was leaving.
About that time Rocky Fitzpatrick come through the
door. If you'll notice, located above the storage room wall,
that north wall of the storage room, he come through that
door, he walked over, Rocky walked over toward me about where
the storage room door is on the west side of the storage
room, asked me what was wrong. I told him about the incident
up on the hill and how Tony, over the past eight days, had
refused to pick me up wherever I called. for him on the radio.
And about, we discussed about the dozer operator getting
floated out. I think Rocky made a statement that he agreed
with me that the dozer operator should get floated out, and
that if Tony was doing that, that it was wrong of Tony.
(Tr. 66-74)

****
Q.

You say you were talking to Rocky Fitzpatrick
during the argument and Tony Adkins had stepped, where did he
step to while you were talking to him?
A.
He walked towards the foreman's office and stepped
in the door for approximately eight to ten seconds maybe. It
was very brief. And then he walked back into the lobby area.
Q.
What happened after that?
A.
He told me that I was a liar and told me that he
was through with me, and was very verbal. I don't recall the
exact words that were said, but I made a comment that I was,
I said, "Tony, you already fired me. I don't have to stand
here and take it. rm leaving.II And I left.
Q.
You left?
A.
Yes.
Q.
During this argument, did he raise his voice?
A.
Yes.
Q.
Did you raise your voice?
A.
Yes, sir.

28 FMSHRC 201

(Tr. 80-81)
Maintenance foremen Tony Adkins described the same events at trial in the following colloquy:
Q. [Mr. Heath] rd like to tum your attention to January of 2005
and particularly the last part of the month, okay. Now, do
you recall Mr. Bowen calling and asking for a ride?
A.
Yes, sir.
Q.
How did you respond?
A.
"I'll be there."
Q.
Did you ever respond any differently?
A.
No, sir.
Q.
Did you ever refuse to pick him up or A.
~~
.
Q.
Did you ever tell him to walk through.the R-2 area?
A.
No, sir.
Q.
Who is Wayne Grimmet?
A.
Wayne Grimmet was a refuse dozer-operator that we
hired.
Q.
Whose shift did he work on?
A.
He worked on my shift, sir.
Q.
And rd like to tum your attention to January 29.
Was Mr. Grimmet working?
A.
He worked that night, yes, sir.
Q.
What day was that for him on your shift?
A.
That was his first day, sir.
Q.
How did he get to the top of the hill?
A.
I myself would transfer him up there, sir.
Q.
And, where did he ride in your vehicle?
A.
In the passenger side seat.
Q.
Was there anyone else in the vehicle besides
yourself and Mr. Grimmet?
A.
Yes, sir, Mr. Bowen.
Q.
And where was Mr. Bowen?
In the backseat. It was a king cab truck.
A.
Q.
And where would you take them to?
A.
I would take them up to the R-4 head.
Q.
And for identification purposes, looking at R-9,
could you point out where the R-4 head is as you call it? .
A.
Yes,. sir. It would be out here where you've got a
head drive out here, where the refuse dumps are.
Q.
How is it labeled on this map?
A.
It says R-4 head, I believe.

28 FMSHRC 202

~

Q.
belt?
A.

Is there also some words there near the end of the

Yes. It says Sukey Branch lmpoundment.
mDGE MELICK: Could you pull the microphone
closer. Speak closer to the microphone. Thank you.
Q.
Is that basically on top of the Embankment?
A.
Yes, sir.
Q.
And, tell me about the first night that you took
both Mr. Grimm.et and Mr. Bowen up on the job.
A.
Wayne, it was his first day, and I just normally
chitchat. He was a new man. I was trying to talk to him.
And we took him up to R-4 head and went through the box cut
to the lmpoundment.
Q.
And did Mr. Bowen have any conversation on the ride
up?
A.
He wanted to float Mr. Grim.met out for -mDGE MELICK; rm sorry. I can't - Could you
repeat what you just said?
A.
He explained he'd like to float Mr. Grimm.et out for
lunch. Float Wayne out for lunch.
Q.
How did Mr. Grimmet respond?
A.
He said, ''No, rm fine.II
Q.
On that first day, did Mr. Grimmet ask you to float
him out or give him a break during the night?
A.
No, sir.
Q.
Do you leave that up to your employees to decide -A.
No, sir.
You're talking about who does the floating out.
Q.
A.
Yes, sir.
Q.
But as to whether the actual ·Operator wants a
break or not, how do you handle that?
A.
If an operator wants a break, he'll holler and rn
get somebody up there to float him out.
JUDGE MELICK: rm sorry. I can't hear you.
A.
When the operator wants floated out, I usually
send someone up to float him out.
JUDGE MELICK: I see. And I don't think we've
ever really had a clear explanation of what does floating out
mean?
A.
Oh, it's a slang term about -JUDGE MELICK: Yes, rm just concerned, we all
understand here, but when somebody reads this transcript,
they might not understand.

28 FMSHRC203

--

A.
Okay. Well, it's to give him a break on his
dinner.
Someone else would come in and run that piece of
Q.
equipment while the person eats lunch?
A.
Yes, sir.
Q.
And, then as a foreman, is it your job to determine
who would actually float someone out if that employee wants
to be floated out?
Yes, sir.
A.
Now, rd like to turn your attention to January
Q.
30th, which would be the second day for Mr. Grimmet.
Yes, sir.
A.
Can you tell me about the ride up the hill that
Q.
evenmg.
Just normal chitchat again when I took them up to
A.
the R-4 head, and ask him how he was liking the dozer and
stuff.
Q.
Did again Mr. Bowen get in the conversation?
A.
Yes, Mr. Bowen was trying, yes, sir, he was in
there.
Did he ask anythin& or what did he say?
Q.
A.
He asked about floating Wayne out again, relieving
Wayne out at dinner, sir.
Q.
How did Mr. Grimmet respond?
He said, ''No, rm fine.II
A.
Q.
Now, again going to January 3 lst, did you again take
Mr. Bowen and Mr. Grimmet up on the hill?
Yes, sir.
A.
Q.
Did Mr. Bowen ask anything on the way up the hill?
Yes, sir. Yes, sir. He wanted to float Wayne out
A.
at dinner again.
How many times did he ask?
Q.
A.
Twice, two or three times, I guess.
And each time how was Mr. Grimm.et responding?
Q.
A.
He kept saying, "I'm fine. I'm fine."
Q.
How long was it on your crew until Mr. Grim.met
actually wanted to be floated out or to be given, someone to
run his machine during lunchtime?
A.
It was a while. I mean, Wayne was new and he
wanted to, it was a while, a month or something like that.
And, when an employee first starts working, are
Q.
they under any kind of a trial period or observation?
A.
Yes, sir. Yes, sir. Wayne was nervous about the

28 FMSHRC 204

job.
So, was Wayne, in fact, going to be judged on his
Q.
performance in his initial time of working for the Company?
Yes, sir.
A.
Q.
And that would include what his dozer work looked
like; is that right?
Yes, sir.
A.
Q.
What do you have to do up on the Impoundment as far
as placing refuse?
A.
You have to put your refuse in one-foot lifts and
get your compaction and keep the R-4 head from being gobbed
off.
By gobbed off, you mean blocked?
Q.
Right. With refuse.
A.
Q.
And what level of compaction does it have to.get
to?
A.
Do what, sir?
Q.
To what level is the material compacted?
I have no idea on that. I mean, it has to be
A.
compacted in one-foot lifts, I mean, it's got to be put in
one-foot lifts and then run over with the dozer and compacted
each time.
Q.
Now, as soon as you got up on the hill - First of
all, on this night, where did you let Mr. Grim.met and Mr.
Bowen out at?
A.
At the R-4 head.
Did you talk to the dozer operator to let him know
Q.
you were there?
Yes, sir. Yes, sir.
A.
Q.
What did you tell him?
I hollered and I said, "Come on back here old man,
A.
I've got you some relief there."
JUDGE MELICK: I'm sorry, I didn't get what you
just said.
A.
I just hollered, I said, "Come on back old man,
I've got you relief. Wayne's here to relieve you out."
JUDGE MELICK: To whom did you say that to?
A.
Gary Hatfield.
Q.
Is he the day-shift dozer operator?
A.
Yes, sir.
Q.
Did he then move the dozer toward you all?
Yes, sir.
A.
Q.
What happened next?

28 FMSHRC 205

A.

He pulled over to where we was parked in the truck.
Q.
And, did anybody get out of your vehicle?
A.
Yes, sir. Mr. Grimmet and Mr. Bowen.
Tell me what happened when they got out of the
Q.
vehicle?
A.
Wayne exited the vehicle and Trooper opened the
door behind him on the back door and he said, "Holler at me
if you want me to float you out," when they got out again.
(Tr. 276-283)

****
Q. [By Mr. Heath] How many times now had he then asked to relieve Mr.
Grimmet on the way up the hill?
A.
Twice, I guess. Twice. Several times.
And is this time that you got out an additional
Q.
time?
A.
Do what, sir?
Is the time that he asked this while getting out of
Q.
the vehicle an additional time?
Yes, sir.
A.
Q.
How many times is that?
About three times.
A.
What did you do at this point?
Q.
I exited the vehicle on my side.
A.
Q.
How did you get out of the vehicle?
I opened the door.
A.
Q.
How did you close the door?
A.
I just shut it back.
Did you slam your door?
Q.
A.
No, sir.
Q.
So, you got out of the vehicle. What did you then
do?
A.
I hollered at Mr. Bowen and told him to come over
to the side, I wanted to talk to him.
Q.
Why did you want to talk to him?
A.
Because I told him that I wanted to keep him from
making Wayne mad about being floated out.
JUDGE MELICK: Sorry. Again, I missed that.
What was that?
·
A.
I told him to stop aggravating Wayne about being
floated out, sir.

28 FMSHRC 206

.__

Q.

So that's the reason you wanted to pull JUDGE MELICK: rm sorry. My hearing is
difficult Q.
I believe he said he didn't want him to, to stop
aggravating Wayne about floating him out.
A.
Yes, sir.
MR. HEATH: You'll need to just speak a little
slower and real clear.
A.
Okay.
sorry. I ain't used to talking in a
microphone and stuff.
Q.
Have you ever testified in a hearing before?
A.
No, sir. No, sir.
Q.
All right. Mr. Adkins, you told me that that's the
reason you wanted to talk to Mr. Bowen?
A.
Yes, sir.
Q.
Where did you talk to him at?
At the back of the pickup truck:
A.
Q.
Was this away from Mr. Grimmet and Mr. Hatfield?
A.
Yes, sir.
Q.
Why did you take him away from that?
A.
Not to embarrass him in front of his coworkers.
Q.
Now, if you would, please, walk me through the
conversation that you had with Mr. Bowen there on the
Jmpoundment?
A.
I told Trooper, I said, "Come over here, I need to
talk to you." And I said, ''You need to leave Wayne alone."
I said, "If he wants floated out, he'll holler at me and let
me know."
And he said, "Well, he asked me to float him."
And I said, "No, he didn't. He said he was fine."
I said, "You need to stop aggravating him." I said, "You
need to do your job."
And he said, "The man told me he needed floated
out."
And I said, "No, he didn't. He said he was fine."
And he said, "Well, he just told me."
And I said, "No, he didn't."
And he said, "You kiss my ass." And, he started
walking off.
And I said, "Hold it just a minute." I said, "You
can't talk to me that way." And I said, "I'll take you to
Billy McCoy," which is the plant superintendent.
And he turned around and he throwed up both hands

rm

28 FMSHRC 207

and said, "Talce me."
Where did he go then.
A
He proceeded to walk up the belts.
Q.
Did you suspend Mr. Bowen up there on the hill?
No, sir.
A.
Q.
Did you fire Mr. Bowen up on the hill?
A.
No, sir.
Q.
Did you believe that he was going about to do his
job at this point?
A.
Yes, sir.
Q.
Did you tell him to do that?
A.
Yes, sir.
Q.
All right. Did you talk to anybody before you left
that hillside or Impoundment?
A.
I talked to Wayne and I told Wayne if he wanted
floated out to holler at me, you know.
Q.
And just so, that was a little blurred there, but I
think he said - What did you tell Wayne?
A.
I told Wayne if he wanted a brealc to let me know.
Q.
Did you then take Mr. Hatfield off the Impoundment?
Yes, sir.
A.
Q.
Where do you recall seeing Mr. Bowen?
A.
At R-3 head?
Is
that where he goes to do his exams?
Q.
A.
Yes, sir.
Now, did you then take Mr. Hatfield off of the
Q.
hill?
A.
Yes, sir.
Q.
Where did you take him to?
A.
I took him to the bathhouse, sir, to change.
Q.
Up on the hill in your conversation with Mr. Bowen,
was there any discussion of the R-2 highwall or the
cut-through?
A.
No, sir.
Was there any discussion of giving him rides
Q.
through the cut-through?
A.
No, sir.
Q.
Once you got back across the road, did you drop Mr.
Hatfield off at the bathhouse?
A.
Yes, sir.
Q.
Did you also go in the bathhouse?
A.
I went in, we come in the, we already come into the
main office, yes, sir.

Q.

28 F:MSHRC 208

Is that the area that you call the lobby area?
Yes, sir.
And we're looking at R-1?
A.
Yes, sir.
Q.
What did you go into the bathhouse for?
A.
Gary always goes in to change clothes and to put
his shoes on, sir.
Q.
Why did you go into the bathhouse?
A
I wanted to talk to Rocky Fitzpatrick.
Q.
Did you, in fact, talk to Mr. Fitzpatrick?
A.
Yes, sir.
Q.
Tell me about your conversation with Mr.
Fitzpatrick.
A.
I told Rocky what happened with me and Mr. Bowen up
on the hill.
JUDGE MEIJCK: Rocky is Mr. Fitzpatrick?
A
Yes, sir.
JUDGE MELICK: Let me just make sure we're all
talking on the same wavelength. l\re heard this from other
witnesses, but Trooper is another nickname for Mr. Bowen.
A.
Yes, sir.
Q.
Has Mr. Fitzpatrick, I think you call him Rocky; is
that correct?
A.
Yes, sir.
Q.
Has he been a foreman longer than you?
A.
Yes, sir.
Q.
Did you, in fact, talk to him about what happened?
A.
Yes, sir.
Q.
Tell me what you told Mr. Fitzpatrick.
A.
I told him about the incident about Trooper wanting
to float Wayne out and I told him to stop aggravating Wayne,
and what Trooper said.
Q.
Did you talk anything in particular as to what he
had said to you?
A.
Yes, sir.
Q.
Any cussing that he had told you?
A.
Yes, sir. I told Rocky about him telling me to
kiss his ass.
Q.
What did Mr. Fitzpatrick advise you to do?
A.
To write him up.
Q.
And, in fact, did you start to write him up?
Yes, sir.
A.
Q.
I'd like for you to look at what is in the book in
Q.
A.
Q.

28 FMSHRC 209

front of you at Tab 2. Do you recognize this document?
A.
Yes, sir.
Q.
Does it have your signature on it?
A.
Yes, sir.
Q.
Is this the document you started to fill out that
evening on January 31st?
A.
Yes, sir.
Q.
What did you put down as the problem?
A.
Insubordination.
Q.
Did you make a recommendation as to whether or not
Mr. Bowen should continue to work for this operation?
A.
Do not retain, sir.
Q.
What does that mean?
A.
That means he wasn't to come back.
Q.
Do you then have to submit this to the appropriate
parties?
A.
Yes, sir.
Q.
Do you have the power to fire someone?
A.
No, sir.
Q.
Who handles that at the operation for you?
A.
We go through proper channels, sir.
Q.
Who are the channels?
A.
It goes from plant foreman to plant superintendent,
then from plant superintendent to H .R and then to the
president, sir.

(Tr. 283-290)

••••
Q. [By Mr. Heath] Walle me through your conversation with Mr. Bowen on
the radio.
A.
I hollered at Mr. Bowen and I said, "Trooper, when
you get to R-2 cut," I said, "holler at me and rll come pick
you up."
Q.
And what did Mr. Bowen respond?
A.
He said, "rm already in the foreman's office.
Q.
How did you respond?
A.
I said, "fll be right there."
Q.
Did you, in fact, go to the foreman's office?
A.
Yes, sir.
(Tr. 292)

28 FMSHRC 210

--

****
Q. [By Mr. Heath] Now, so you said you asked him what he was doing.
Now take me through the conversation at this point between
you and Mr. Bowen in the Preparation Plant office.
A.
I come to the door and I said, "What are you
doing?"
And he said, "rm quitting.
And I said, "You're quitting?"
And he said, "Yeah."
Q.
Anything else said?
A.
We passed each other, and we passed each other in
the lobby area and he said he was tired of being treated like
a child.
JUDGE MELICK: rm souy. I missed that again.
A.
He said he was tired of being treated like a child.
How did you respond to that?
Q.
A.
I told him I didn't treat him like a child.
Q.
What else?
And he explained about the, where Billy McCoy and
A.
where that refuse, about the R-4 where we had a spill and we
had to clean it up and he said I didn't take up for him.
Q.
Let's explain that just a little bit. When had
this happened that there was a spill on the R-4 belt?
A.
A week prior, actually. A couple of weeks prior.
Q.
After this spill, was the spill cleaned up on your
shift?
No, sir.
A.
Did you then m~t with Mr. McCoy.
Q.
Yes, sir.
A.
Was Mr. Bowen involved?
Q.
A.
Yes, sir.
And, what was Mr. Bowen saying about this meeting
Q.
with Mr. McCoy?
He said that I never took up for him. I let Mr.
Q.
McCoy talk to him, and like that.
JUDGE MELICK: And Mr. McCoy was in what
position at that point?
Plant Superintenden~ sir.
A.
nIDGE MELICK: Go ahead, rm sorry.
Q.
And what else did he say about this meeting with
Mr. McCoy?
A.
He said I didn't take up for him. He said I let

28 FMSHRC 211

-

Billy talk to him and I never took up for him. I never took
none of the blame.
Q.
What else did he talk about? First of all, what's
his demeanor during this conversation?
A.
Very agitated, sir.
Q.
What's his voice like?
A.
Loud.
Q.
Is he shouting or is he just talking loud? What's
your-A.
Shouting.
And whafs your voice like?
Q.
A.
About normal.
Q.
You have a very high pitched voice, don't you?
A.
Yes, sir.
Q.
Did, in this conversation, anybody else come in
there?
A.
Rocky Fitzpatrick.
Q.
Did an individual by the name of Cobb or Mr.
Blackbum come into the area?
A.
Yes, sir.
Q.
When did he come-in?
A.
He was in the bathroom, I~ sir.
Q.
Where do you recall seeing him standing?
A.
Over at the entrance to the bathhouse.
Q.
Now, I think you told me Mr. Cobb is in that area
where the door is to the bathhouse.
A.
Yes, sir.
Q.
Did Mr. Fitzpatrick, Rocky Fitzpatrick, come in?
A.
Yes, sir.
Q.
Okay. Tell me what else was being said during this
conversation?
A.
He explained to Mr. Fitzpatrick that, about Wayne
needed floated out, that the man should have a brake [sic], and
that he should have a break and that I wouldn't let him float
him out.
Q.
So, Mr. Bowen is telling everybody that he's still
wanting to run the dozer during lunchtime?
A.
Yes.
MR. ADDINGTON: Objection, your Honor. Thafs
leading.
Q.
Did you think that Mr. Bowen wanted to run the
dozer or didn't want to run the dozer during lunchtime?
A.
Mr. Bowen wanted to run the dozer.

28 FMSHRC 212

Now, did anyone else come in during this
conversation?
A.
Robby Hicks.
Q.
When did he come in during the conversation?
Later on during the conversation.
A.
Q.
Where did he come in at, or what did he do?
He come in to use the bathroom.
A.
Q.
And I ask you to tell me, looking again at R-1,
what door he would have come in through?
He would have come in through the main lobby area
A.
entrance.
Q.
lfyouTe looking at that building, on this map
it's over to the left off the lobby area.
A.
Yes, sir.
Q.
Anything else that's being said in this
conversation?
A.
Mr. Bowen explained that all the guys on my shift
didn't like me and that they should, that I should hear how
they talk about me behind my back. And I said, "That's fine.
That's okay."
Q.
Anything else that you recall being said in this
conversation?
A.
That's, about how he was being treated on the job.
Q.
Did Mr. Bowen at any point tell you that he quit?
A.
Yes, sir.
Q.
How many times do you think he said that?
A.
Several, sir.
Q.
Did he, in fact, leave the area?
A.
Yes, sir.
Q.
At any point during this conversation, did you step
out of the room?
A.
Yes, sir.
Q.
When did you step out?
A.
After we had the conversation about he explained,
said nobody didn't like me and stuff like that, and I walked
back to the foreman's office.
Q.
Is that what's labeled Foreman's Office?
A.
Yes, sir.
Q.
How long did you stay in the foreman's office?
A.
I just read the on-shift report and come back out.
Q.
Any, during your conversation in the lobby area,
did Mr. Bowen, in any way, discuss the R-2 cut-through?
A.
No, sir.

Q.

28 FMSHRC 213

Q.
Did he discuss getting rides through the R-2
cut-through?
A
No, sir.
Q.
Did he, in fact, ultimately leave the lobby area?
A.
Yes, sir.
Q.
What did you do at that point?
A.
I observed Mr. Bowen walking across·the parking
lot.
Q.
In going to the parking lot, where does he go?
A.
From the plant office right there to a, there is a
catwalk leading to the main parking lot?
Q.
Is that, in fact, labeled on R-9?
A.
Yes, sir. Right here's your walkway, here's your
main office, and this is your walkway.
For identification purposes, that's in the left
Q.
hand comer of R-9 here.
A.
Yes, sir.
Q.
Now, did you call anyone or attempt to call anyone
that night?
A.
I called security.
Q.
What did you tell them?
A.
I told them not to let Mr. Bowen on the property.
Q.
Did you also do any work with R-2, the form there?
JUDGE MEUCK: Are you talking about Exhibit
R-2 as opposed to the belt R-2?
MR. HEATH: Thank you, your Honor.
JUDGE MEUCK: We have a lot of R's here.
Q.
Looking at Exhibit R-2, when did you complete
filling that out?
A.
As I stated earlier, I signed it the next morning.
Q.
Did you, first of all before we get to the next
morning, did Mr. Bowen call you later that evening?
A.
Yes, sir.
Q.
About what time did he call you?
A.
Approximate time, fve no idea.
Q.
Can you give me a ballpark of how far into the
evening?
A.
f d say about between, about 9:00 somewhere.
Q.
So, can you tell me about your conversation with
Mr. Bowen.by telephone?
A.
Mr. Bowen said that, he apologized about what
happened.
Q.
Anything else that he asked you to do?

28 FMSHRC 214

·.

A.
No, sir. No, sir.
Q.
What did you tell him about where things stood as
far as any discipline?
A.
I told him it was out of my hands.
Q.
Why did you tell him that?
A.
Sir?
Why did you tell him it was out of your hands?
Q.
A.
Because it was already, I had already filled the
paper out.
Q.
Once something like this happens, what are you
required to do?
A.
It has to go to the plant superintendent.
Q.
And anything else that Mr. Bowen told you in this
conversation?
A.
No, sir.
(Tr. 295-303)
Adkins version of events as to the origins of the conflict at the impoundment was ·
corroborated by dozer operator Wayne Grimmet. His testimony in this regard·is noted in the
following colloquy:
Q. [By Mr. Heath] And, sir, who are you employed by?
A.
Sidney Coal Company.
Q.
How long been at Sidney·Coal?
A.
Since the end of January.
Q.
What is your work experiences as far as working the
dozer?
A.
Roughly 18, 20 years experience.
Q.
Did you return back to this area in January to your
wife's home?
A.
!did.
Q.
What did you do prior to coming to Sidney related
to dozer work?
A.
I was a general foreman for a construction company
in Hampton, Virginia.
Q.
When did you start at Sidney?
A.
Exact date?
MR. HEATH: Yes.
A.
I think it was the 29th of January.
Q.
Do you recall getting a couple days of training
before that?
A.
Day-shift training, I did.

28 FMSHRC 215

Q.
Do you recall then starting on second shift on the
evening of the 29th?
A.
Yes.
Q.
And, what were your duties?
A.
My duties were to run the Impoundment dozer, to
spread the Impoundment in one-foot lifts in the direction I
was directed to do so.
Q.
And did you meet Arthur Bowen on your first night
on the job?
A.
I did.
Q.
What did he ask you?
A.
He asked me ifI needed floated out, that he would
float me out.
Q.
Did he ask you anything about your dozer background
or skills?
A.
He asked me, he informed me that - He did. He
asked me if I had, what experience I had and did I know how
to read a topo map, that he had been passed over for the job
and was wanting to know kind of why.
Q.
He basically asked you what your skills were versus
his?
A.
I think so.
Q.
That's the impression you got?
A.
Absolutely.
Q.
Okay. And then he asked you to float him out on
the night of the 29th (sic) - First of all, how did you get
up to your job on the 29th?
A.
Tony would take us up, the foreman would take us up
in the company vehicle.
Q.
Where would you sit?
A.
I always sat in the passenger seat.
Q.
Up front?
A.
Up front.
Q.
Where did Mr. Bowen sit?
A.
Back seat.
Q.
On the way up the hill, is that when he asked you
about floating out for lunch?
A.
Yes.
Q.
And, did you want to be relieved when you first
started working in this operation?
A.
No, I did not.
Q.
Why not?
A.
Because I wanted to make sure my duties that was
28 FMSHRC 216

:.

expected of me in my work was.done and performed correctly,
and I didn't know anybody to trust to leave me in a situation
that I would have to work harder for to try to catch up or
something, not knowing anybody else's experience.
Are you basically, so this is your starting period.
Q.
Are you sort of being graded as to how you're doing your job
in this initial period?
I think I would be, yes.
A.
Q.
Let's go to the second night, which.would have been
the 30th. Are you again in the vehicle with Mr. Bowen and Mr.
Adkins?

A.

lam.

Q.
A.
A.
A.

Did Mr. Bowen ask you about running your dozer?
He asked again to float me out for lunch.
What did you tell him?
No.
Q.
Same thing you told him the night before?
A.
Correct.
What was the tone of this conversation?
Q.
A.
I don't think that there was a really negative
tone. I think that, you know, just a normal tone, I expect.
Q.
What happened on the 31st?
A
Again, the same journey up the hill. Mr. Bowen
asked me to float me out for the dozer. I felt like, you
know, getting maybe kind of irritated, I wouldn't let him do
it, more persistent of doing so.
Did he ask you more than once that night?
Q.
Yes, he did.
A.
Q.
Again, how did you respond to .that? ·
A.
I just told him rd let him know, because I didn't
want to directly say no. I just said, "rll let you know."
And I didn't feel it was my position to, you·know, to okay
that. I felt that would be the boss's position to-okay that.
Do you know how many times he asked you to run that
Q.
dozer?
The last day up the hill?
A.
MR. HEATH: Yes.
A.
Not exactly how many times, but it was quite a few
times going up the hill.
At any.point did you tell him, "Hey, I want you to
Q.
run the dozer for me?"
A.
No.
Q.
Getting out of the vehicle at the top of the hill,

28 FMSHRC 217

...

did you ask Mr. Bowen about him running your dozer? Did you
request him to?
A.
No, I did not.
Q.
And did you ever fall asleep running the dozer?
A
No.
Q.
And, when you got up on the hill, first of all, and
we've got a map here, but where would you all get off to
switch out the dozer?
A.
Always at the stacker belt, at the end of the
stacker belt or very close to it.
Q.
Would that be somewhere around the end ofR-4?
A.
That's exactly right.
Q.
For the record, we're looking·at R.,.9 and what's
labeled Sukey Branch Slurry Impoundment Embankment. Is that
correct?
A.
Yes.
Q.
And that would be your work area?
A.
Yes, that's correct.
Q.
When you got out of the vehicle, what.did you do?
A
I went to Gary Hatfield, as I do at the beginning
of every one of my shifts, because he directs. me on what
direction the material is going to be pushed throughout the
night.
Q.
And Hatfield was the dozer operator.
A
Yes, he's the day-shift opera.tor.
Q.
While you're having your conversation with Mr.
Hatfield, where is Mr. Bowen?
A.
At that particular moment he was standing with us.
Q.
Was he basically listening to what's being
discussed?
A.
Correct.
Q.
Where was the last time you saw Mr. Bowen?
A.
Going to his belt job, to what he did to belts. He
was beaded that way.
Q.
And did Mr. Adkins talk to him up on the hill that
you could tell?
A.
Yes.
Q.
Could you hear any of the conversation?
A.
No.
(Tr. 202-208)

28 FMSHRC 218

~

Foreman Rocky Fitzpatrick corroborated Adkins' testimony regarding events at the
impmmdment and when they later met in the plant office. His testimony in this regard is reported
in the following colloquy:
A.
We went in and he [Adkins] closed the door behind us and he ·
proceeded to tell me that him and Trooper had had a
confrontation on the Impoundment. He said 1hat, I think
Wayne Grimmet had only worked like, I think, three days at
that time, and he said all three days on the way to the
Impoundment that Trooper had, rm not sure how he put it, I
think he said had aggravated the tar out of the man or
something about wanting to float him out for dinner and
breaks. He said when he got to the Impoundment, said Trooper
had been pressuring the guy and the guy had insisted that he
didn't want a break, that he wanted to stay on the dozer and
he'd eat something on the run, because he didn't want to get
behind or whatever. Anyway, and Wayne's one of these .guys
that takes a lot of pride in his work. And he said Trooper
had been aggravating the guy, I think is how he put it
Anyway, when they got over there, he said that he
called Trooper to the back of the truck, I think he said, and
told him basically quit aggravating the·man, he says he don't
want you to break him out. And at that point, he said
Trooper flew mad and started insisting that it wasn't fair
for this guy to have to work 12 hour shifts and .
not get a break, and it just wasn't right. And I guess, I
don't know why he got so upset about it, but anyway; the way
Tony described it, he got very upset and was being very loud
with him and insisted that it wasn't fair and that this guys
needed a break like everybody else. I don't know what and
all was said, but at one point he said that he told Trooper
he was going to take him to Billy the next morning, and that
Trooper said; "I don't know care what you do. You can kiss
my ass."
And at that point, he left and came back to the
office.
My advice to him was, I said, "Well ~Q.
Let me clarify something. When you say "he left,"
are you referring to Mr. Adkins?
A.
Tony. .Tony. He got Gary Hatfield and they came
back to the plant where he called me in there and was telling
me this. Now, this is what he told me in the office.
Q.
You started 'to say ·~my advice."

28 FMSHRC 219

._

A
My advice to Tony was, I said, -"Well," he insisted
that he was going to take.him to Billy, and I said, "Well,
that's what you need to do." And my advice was, "Ifhe comes
over here and says one word to you," I said, "don't argue
with him, don't fight with him, call security and have him
put him off the property. We'll deal with him tomorrow." I
said, "We can't fire no one, but we can have them removed
from the property." I said, "You don't have to take that
abuse,11 basically is what I told him.
I then left -Q.
Before you left, was there any discussion about .any
paperwork that needed to be filled out?
Oh, he had pulled a Disciplinary Action fonn out
A.
and the only part of it I seen him fill out was he wrote
William's names on the top. He wrote "William Bowen."
That's all I seen him fill out on the paper. It's a little
pink fonn, a Disciplinary Action form. He did write his name
down. I seen him do that.
Q.
At this point did you understand Mr. Bowen was
still working on the hill?
A.
As far as I knew, he was still .over there.
Q.
Did Mr. Adkins say he had fired Mr. Bowen?
A.
No. There was nothing said about anybody firing
anyone. And we don't have this authority no way.
Q.
Did he say he had suspended Mr. Bowen?
A.
No. He hadn't suspended him. He merely was, he
pulled the Disciplinary Action fonn out and put his name on
it.

:.

(Tr. 256-259)
A short time later Fitzpatrick, was at his locker in the changing room whenhe heard
Bowen yelling in the lobby area. Fitzpatrick returned to the lobby area and saw that Bowen was
"almost yelling or screaming, ifyou will, at Tony Adkins" and "kept insisting that it wasn't fair,"
that Grimmet did not get a break. Bowen then attempted to engage Fitzpatrick in a·discussion
about Grimmet getting a break so that Bowen could drive the dozer. According to Fitzpatrick,
Adkins responded, ''Well, you know, that's my place. That's not your place to worry about it. If
the man needs a break, I'll give him a break. "
Fitzpatrick testified that Bowen ''was being·very loud and aggressive," and using
intimidating behavior: "[H]e had a pair of boots or shoes in his left hand, and he was standing
with like his arm up on the file cabinet, and from time to time he would hit the boots and shake
the file cabinets." According to Fitzpatrick, at one point during the dispute, Bowen told Adkins
28 FMSHRC 220

that nobody on his crew liked him, and "he ought to hear what they said about him when he
wasn,t in the room." Bowen purportedly told Adkins he could not get along with him and told
Adkins, "I quit." Adkins responded, "Well, you,ve.made your decision." Fitzpatrick testified
that during their argument Bowen said he quit "on two or three different occasions." According
to Fitzpatrick, there was no discussion about the ·R-2 cut-through during the.argument.
Other Sidney employees were present during the exchange between Bowen and Adkins in
the lobby of the preparation plant office. Loader and dozer operator Gary Hatfield was in the
locker room getting ready to leave for the day~ when he heard Bowen "hollering and screaming."
As Hatfield was leaving the locker: room, Bowen was walking towards him, heading to the
parking lot. According .t o Hatfield, Bowen was ''mad," and '.' hollering and raving" as he left the
building. Hatfield testified that Bowen said he was not going to be talked .to "like a child.,,
Preparation plant worker Randall Blackburn had followed Bowen into the foreman,s
office around 7:30 p.m. Blackburn testified that, as soon as Bowen entered the office area, he
"started hollering at Tony Adkins, screaming". Blackburn testified that Bowen was so angry that
he slammed boots down and hit the top ofthe filing cabinet·in the superintendent's office.
According to Blackbum, Bowen' s behavior became·so threatening·that Blackburn though ·Bowen
was about to strike Adkins. Blackbum testified in this regard that.'1 thought he was going to-hit
Tony when he·brought his hand over, and he pointed his finger in his -face and told him he could
kiss his ass, he quit."
Beltman Robert Hicks also heard Bowen tell Adkins to "kiss his ass'~ and saw Bowen · . ·
walk off the job with his belongings. Jeffery Brock was.a dozer operator at Sidriey Coal. Brock
testified that he left the prep plant office at the same time as.Bowen and spoke with him"in the
parking lot. Bowen.told·Brock that he quit because "they treated him like a dog," and "quitting
was better than getting fired." Significantly Bowen also admitted to Brock.that he and Adkins
had argued over leaving the dozer man alone and that he (Bowen) told Adkins to ''kiss his ass, he
quit" (Tr. 247-278).
I have evaluated the evidence in this case, some ofwhich is obviously in conflict, and
conclude, based on the credible·evidence, that the Complainant in fact resigned from
employment with the Respondent before he suffered any adverse action. It is not alleged that the
Complainant was the victim of a constructive discharge and, under the circumstances, the
complaint herein must .be denied. 2
I note, first of all, that the person who Bowen claims fired him i.e. Tony Adkins, denied
under oath that he fired Bowen and denied that he told Bowen that he was fired (Tr. 283). While

2

A constructive discharge is established when a miner who engages in ·protected activity
shows that the mine operator created or maintained conditions so intolerable that a reasonable
miner would have felt compelled to resign. Dolan v. F&E Erection Co:, 22 FMSHRC -171, 176
(February 2000).
28 FMSHRC 221

Adkins did testify that, in response to Bowen.telling him "You kiss my ass", he responded '1fold
it just a minute ...You can't talk to me that way...I'll ~e you to [Plant Superintendent] Billy·
McCoy'', that statement is not alleged to be an adverse action. I note, moreover, that Bowen
himself admitted in a deposition that "I never said I quit, but I guess technically you could say I
did because·I did walk away from the job" (Tr: 147). This testimony also corroborates Adkins'
testimony that Bowen had, without authorization, just walked off the job and told him at the
foreman's office "I'm quitting".

As previously noted, Bowen also admitted to· former coworker Jeffrey Brock that after he
(Bowen) and Adkins had an argument at the impoundment, Bowen said "he told Tony [Adkins]
to kiss his -ass, he quit" (Tr. 247-248). Additional corroboration of the finding that Bowen had
resigned is found in the testimony of the other witnesses to the confrontation that took place later
at the plant office. As previously noted, Mssrs. Fitzpatrick, Blackbum and Brock all testified to
hearing Bowen say that he quit.
:.
In any event, even assuming, arguendo, that Adkin's statement to Bowen following their
confrontation at the impoundment that "I'll take you to [Plant Superintendent] Billy McCoy''
(with the implication ofrecommending disciplinary action) could be construed as ·an adverse ·
action, I do not find that the statement or the subsequent initiation by Adkins of the "Disciplinary
Action Form" and the follow-through of disciplinary.action by Respondent's management, was
motivated in any part by Bowen's protected safety complaints. First, it is apparent .that a number
of employees other than Bowen had complained about the unsafe condition of the highwall
adjacent to the cut-through and there is no evidence of retaliation against any of them. Indeed the
record suggests that the highwall condition was a common concern among:both hourly and
management employees. Second, the confrontation at the impoundment immediately preceding·
Bowen' s resignation was clearly about.Bowen's purported harassment of bulldozer operator
Wayne Grimmet and Bowen' s persistent efforts to operate Grimmet's bulldozer over both
Grimm.et and Adkins objections. Bowen' s testimony, that he raised during this confrontation the
issue of Adkins allegedly not giving him rides through the cut-through is also totally out of
context with even his own description of, and reason for the confrontation. Third, Bowen
admitted to former co-worker Jeffrey Brock that he bad resigned because of the confrontation
with Adkins concerning the relief of dozer operator Grimm.et. Fourth, although the Complainant
claims that the confrontation at the .impoundment was a protected safety complaint, it is clear·that
the issue of his resignation or other adverse action was about the Complainant's insubordinate
behavior and not safety. Finally, Bowen' s exaggeration of, and conflicting testimony regarding
the number of times he had been denied a ride through the cut-through seriously damages the
credibility of his entire testimony.
However, even assuming, arguendo, that Adkins had been motivated in part by Bowen's
protected activity,.the credible record would overwhelmingly support the affirmative defense that
he was also motivated by Bowen' s unprotected activity and that Adkins would have taken the
adverse action for the unpr.otected activity alone. · See Pasula, 2 FMSHRC at 2799-2800.
Clearly, Adkins' statement - - "You can't talk to me that way... I'll take you to Billy McCoy'' - -

28 FMSHRC 222

was a direct, understandable and rational response to Bowen's perceived harassment of bulldozer
operator Wayne Grimmet and Bowen' s insubordinate response "you kiss my ass" {or, according
to Bowen himself, "Stick it in your ass").
The Complainant, in his brief, essentially ignores the overwhelming evidence that he had
already in fact resigned and appears to argue that. the initiation of termination procedures by
Adkins at the plant office shows that Adkins in fact had already fired Bowen and that the
continuation of termination procedures by Sidney management confirms this argument.
Adkins testified in this regard that he had never previously initiated disciplinary action
{Tr. 308) and that he began filling out the company's Disciplinary Action Form on the advice of
Foreman Fitzpatrick (Tr. 289). Adkins explained that he was recommending that Bowen ''wasn't
to come back" (Tr. 302). Adkins completed the disciplinary action form by signing it on
February 1, 2005, (Exh. R-2) and presented it to·Acting Superintendent Joe Holt for further
action in accordance with company procedures. Adkins acknowledged in his deposition that he
also told Holt that Bowen had quit (Tr. 316). Thereafter, there were clearly communication
problems among upper management as to whether Bowen had quit or was fired. In any event, on
February l, 2005, a letter to Bowen was sent under the signature of Vice President Arch Runyon
{with the approval of company President Sid Young) advising Bowen of a "5 day suspension
without pay with intent to discharge" (Exh. R-4).

on

These events occurred·prior to MSHA advising ·Fitzpatrick and Young
the evening·of
February 1, 2005, about a complaint they received about a piece of ice alinost hitting someone.
Although Bowen was not identified by MSHA as the initiator of the complaint, there is no
dispute that Bowen had, earlier that day, phoned a "l 03(gr complaint.to -M SHA ·about the
condition of the highwall (the Complainant's second alleged protected activity). According to
Respondent's President, Sid Young, he had the suspension letter dated February 1, 2005,
withdrawn when he learned that Bowen had previously voluntarily resigned. The letter
confirming Bowen' s resignation was ~ereafter issued on February 2, 2005. Even assuming,
arguendo, however, that Respondent' s management suspected that the Complainant had
triggered the MSHA inspection on February 1, 2005, and therefore the letter dated February 2,
2005 was issued with such knowledge, the alleged adverse action of issuing the second letter is
irrelevant since the Complainant had already resigned on I anuary 31, 2005.
Alternatively, even assuming, arguendo, that Bowen had been discharged by the
February 151 letter, any such discharge as previously determined in this decision would not have
been motivated by Bowen' s claimed protected activity and, since the letter dated February 1st also
preceded the MSHA inspection, it too could not have constituted an adverse action triggered by
Bowen's "103(g)" complaint to MSHA.

28 FMSHRC 223

Under all the circumstances, this discrimination complaint must be dismissed.

ORDER
Discrimination Proceeding, Docket No. KENT 2005-249-D, is hereby·dismissed

.

.

:.

Gary Melick
AdnrinistrativeLawJudge
202-434-9977

Distribution: (Certified Mail)
Wes Addingto~ Esq., Appalachian Citizens Law Center, Inc., 207 W. Court St, Suite. 202,
Prestonsburg, KY 41653
Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, P.O. Box 273, Charlesto~ WV, 253.21

\1h

28 FMSHRC 224

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

March 30, 2006
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2004-68-M
A. C. No. 54-00297-11648

v.
MASTER AGGREGATES TOA BAJA CORJ>.,
Respondent

Cantera Master Aggregates

ORDER DENYING MOTION TO PERMIT SUPPLEMENTAL RESPONSE TO
SECRETARV'S SECOND REQUEST FOR ADMISSIONS
On March 23, 2006, Respondent filed a motion captioned Supplemental Response to
Secretary's Second Request for Admissions in which it seeks to amend, without explanation or
justification, its response to the Secretary's Second Request for Admissions (Request No. 5).
Said Request No. 5 states as follows:
Request No. 5: On November 13, 2002, Jeffrey Albrecht did not examine ground
conditions at the base of the highwall, the site of the fatality, prior to the accident.

In its initial response filed December 1, 2005, Respondent states as follows:
R esponse to Request No. 5: Master Aggregates objects to Request No. 5 on the ground
that it is vague and ambiguous, as it is not known what is meant by the phrase "prior to
the accident." Subject to the foregoing objection, however, and without waiving the
same, Master Aggregates states that for the purposes of the above-captioned
administrative proceedings only, Request No. 5 is admitted [emphasis added).
On March 23, 2006, following hearings on March 8-9, 2006, Respondent filed the motion
at bar seeking to amend its response to read as follows:
Response to Request No. [51: Master Aggregates objects to Request No. 5 on the ground
that it is vague and ambiguous, as it is not known what is meant by the phrase ')'rior to
the accident." Subject to the foregoing objection, however, and without waiving the
same, Master. Aggregates states that for the purposes of the above-captioned
administrative proceedings only, Request No. 5 is denied [emphasis added).
The Secretary objects to the present motion arguing that it is untimely and prejudicial.
More particularly the Secretary argues as follows:

28 FMSHRC 225

Respondent initially served the Secretary with its response to Secretary's Second Request
for Admissions on December 1, 2005. Since that date, the Secretary has used
Respondent's admission in response to Request No. 5 to support her Opposition to
Respondent's Motion for Partial Summary Decision and Cross-Motion for Partial
Summary Decision dated February 2, 2006. The Secretary also listed Respondent' s
admission in response to Request No. 5 in her Prehearing Statement dated February 16,
2006. At no time between December 1, 2005, and March 7, 2006, did the Respondent
allege that its admissions in response to Request No. 5 was inaccurate or a misstatement
of the facts. The Secretary is prejudiced by Respondent's tardy contention, first made at
trial on March 8, 2006, that it made in [sic] an error in responding to Request No. 5 of
Secretary' s Second Request for Admissions. Respondent had ample time to review this
admission before trial, particularly since the Secretary called Respondent' s attention to
the particular admission at issue in two separate filings. Respondent instead chose to wait
until trial before changing its answer, thus depriving the Secretary of any opportunity to
conduct further discovery on this ~al point.
-

In a response to the Secretary's opposition to the motion, Respondent argues that the
Secretary would not be prejudiced should the motion be granted because it had informect the
Secretary on the date of hearing on March 8, 2006, of its intention to change its response to
Admission Request No. 5 from "admitted" to "denied," and because the Secretary had the
opportunity to examine the witness, Mr. Albrecht, at his deposition,and at trial regarding any
perceived discrepancies. Respondent further asserts, but without explanation, that the initial
response to Request fo~ Admission No. 5 was the r~t of an "error by counsel."
The appropriate :framework for resolving the issue presented is provided by the Federal
Rules of Civil Procedure, applicable hereto by Commission Rule l{b), 29 C.F.R. § 2700.l(b).
Fed. R. Civ. P. 26 (e)(2) imposes an ongoing and broad reaching duty to correct disclosures and
to seasonably amend a prior admission i( the party believes that the response is incorrect in a
material sense. Under Fed. R. Civ. P. 37(c), if a party, without substantial justification, fails to
amend a prior response to discovery as required by Rule 26(e)(2), a party may not use the
undisclosed i'nformation as evidence at trial unless the failure to disclose was harmless. See 7
Moore's Federal Practice§ 37.60 (Matthew Bender, 3d ed.)
Respondent has failed to provide any explanation to justify its failure, until the day of
trial, to notify the Secretary of its proposal to .assert a denial in place of an ·admission made in
discovery three months earlier regarding a material issue in the case. The question of whether
Mr. Albrecht inspected the highwall on the day of the fatal accident is, of course, at the very core
of the case. Respondent has also failed to adequately explain why the initial response to the
request for admissions was made as it was. Merely alleging that it was due to "error by counsel"
is insufficient. Respondent, who has the burden of proving the basis for its motion, failed to
question Mr. Albrecht at bearing reg~g the basis for the alleged error. The attorney who
made the alleged error could also have testified to exi}lain the circwnstances (though would then
have been required to withdraw from representation).

28 FMSHRC 226

Moreover, I do not find that ~e failure to have provided timely disclosure was harmless.
The Secretary clearly placed significant-reliance on the admission, using it, without objection, in
the motions for partial summary decision, and obviously intending to use it at trial._Learning, on
the day of trial, only moments before the commencement of trial, that Respondent was seeking to
deny what had been relied upon to be a critical admission, denied the Secretary a reasonable
opportunity to obtain alternative evidence.
Under all the circumstances, I find that the requested change from an admission to a
denial, in the response to Admission Request No. 5 may not be used as evidence in the case at
bar. Accordingly, the Respondent's Motion to Permit Supplemental Response to Secretary's
Second Request for Admissions, is denied.

Distribution: (Certified ·Mail)
Donyell M. Thompson, Esq., Office of the Solicitor, U.S: D<;I>t. of Labor, 102 Varick Street, .
Room 983, New York, NY 10014
Willa B. Perlmutter, Esq., Patton Boggs, LLP, 2550 M Street, N.W., Washington, D.C. 20037

/lh

28 FMSHRC 227

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington DC, 20001-2021
Telephone: (202) ~58
Far. (202) 434-8949'

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

April 11, 2006
CIVIL PENALTY PROCEEDING
Docket No. YORK 2005-116-M
A. C. No. 19-01114-56147

v.
R.J. CINCOTTA CO., INC.,
Respondent

Mine: Portable Crusher

ORDER DENYING RESPONDENT'S REQUEST
TO REOPEN PENALTY ASSESSMENT
ORDER TO PAY

~

On February 6, 2006, the Com.mission remanded this matter to me for further
consideration and determination as to whether the operator, R.J. Cincotta Company, Inc.,
("Cincotta") is entitled to relief under Rule 60(0) of the Federal Rules of Civil Procedure. 1
Subsequently, on February 28, 2006, I issued an order in which I directed Cincotta to submit a
sworn statement addressing why it failed to timely contest the proposed penalties, particularly
in light of its receipt of the show cause order. I stated that if Cincotta were.to restate its .c laim
of not having received the show cause order, it must explain why this Commission should not
consider the certified return receipt as proof ofits receipt of the show cause order.2
On March 6, 2006, I received the Petitioner's Motion for Approval of Settlement and
Order, however, the.following day, my assistant left a voicemailmessage for Cincotta,
informing the company that despite the Secretary of Labor's filing of a settlement motion, I
would still need to detennine whether relief from the final order was warranted. Unless the
penalty assessment is reopened, no settlement motion can be considered. On March 8, 2006,
company representative, Debbie Cincotta, called my office and spoke to my Attorney-Advisor,
who reiterated the company's requirement to file a sworn statement in response to my order.
Finally, on March 14, 2006, I received Cincotta's timely response to my order, in which Debbie
1

While the Commission is not obligated to adhere to the Federal Rules of Civil
Procedure, the Commission has fow1d guidance and has applied "so far as practicable" Rule
60(b). 29 C.F.R. § 2700.l(b).
2This matter arose because Cincotta did not file a timely answer to the Secretary of
Labor's ("Secreuµy'') penalty petition or to my August 18, 2005 show cause order. When I did
not receive a response to the show cause order, I issued a default order on November 2, 2005, in
which I directed Cincotta to pay the proposed penalty assessment. In support of its request,
Cincotta, appearing prose, claims it never received the default and that it ')lever heard back for
[sic] an order to respondent to show cause." Resp't Jan. 12, 2006 Let.
28..FMSHRC 228

Cincotta asserts the following:

(1)
(2)
(3)

I personally did not receive the Order of Default sent to us on August.22, 20053
and signed by and [sic] administrative person in our company.
I was on vacation and never received the notice when I returned.
The Company would have responded to the original notice in a timely manner,
if an officer of the Company was [sic] notified.

Resp 't Mar. 8, 2006 Let.
The Commission has stated that default is a harsh remedy, and if the defaulting party
makes a showing of adequate or good cause for failing to timely respond, the case may be
reopened. Coal Prep. Services, Inc.. 17 FMSHRC 1529, 1530 (Sept.1995). In addition, the
Commission has held pleadings drafted by pro se litigants to a less stringent standard than that
applied to documents drafted by attome)'s. Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273
(Aug. I992)(citing Haines.v. Kerner, 404 U .S. 519, 520 (1972)).
Despite Cincotta's prose status, based upon the evidence before me, I must deny
Cincotta's request. The record includes a certified return receipt indicating the company's
receipt of the show cause order, a copy of which I included with my February 28 order. Debbie
Cincotta acknowledges the company's receipt o(the-document but seeks to be excused because
she did not personally receive the document. However, it is a company' s responsibility to
ensure that the proper person within its managerial hierarchy receives time .sensitive
documents. The Commission can not and will not attempt to regulate these types ofinnerworkings of a company. The record shows Cincotta' s receipt of the show cause order, and
thus, Cincotta should have filed a response within 30 days.
Accordingly, Cincotta's request to reopen the p~alty assessment is DENIED, and,
thus, the settlement agreement between the parties is moot. Cincotta is ORDERED TO PAY
the proposed penalty assessment of$4,555.00 within 30 days ofthls order.4 Upon receipt of
payment, this matter is DISMISSED.

<~. ~·

Robert J. Lesnick
Chief Administrative Law Judge

3

Cincotta actually received the Order to Respondent Show Cause on August 22, 2006. I
will assume this i.s the document to which Cincotta is referring.
4

Payment should be sent to: MINE SAFETY AND HEALTH ADMJNISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P . 0 . BOX 360250M, PITTSBURGH, PA
15251.
28 FMSHRC 229

Enc.
Distribution: (Certified)
David L. Baskin, Esq., Office of the Solicitor, U.S. Department of Labor, JFK Federal ·
Building, Room E375, Government Center, Boston, MA . 02203
Debbie Cincotta, R.J. Cincotta Company, Inc., P.O. Box 556, Waltham, MA 02454

/aak

·•

28 FMSHRC 230

G~ U.S. GOVERNMENT PRINTING OFFICE: 20~20-961/43952

:·. ..