MAY2000

COMMISSION DECISIONS AND ORDERS
05-03-2000 Sec. Labor on behalf of Kevin T. Donald v.
Atlantic States Materials, Inc.
05-09-2000 Gary D. Morgan v. Arch of Illinois
05-1 1-2000 San Benito Aggregates, Inc.
05-18-2000 Donald L. Ribble v. T&M Development Co.
05-25-2000 Douglas R. Rushford Trucking
05-25-2000 Hubb Corporation
05-25-2000 Cantera Green
05-30-2000 Earl Begley employed by Manalapan Mining
05-31-2000 Martin Marietta Aggregates

VA
99-110-DM
LAKE 98-17-D
WEST 2000-155-M
LAKE 2000-25-DM
YORK 99-39-M
KENT97-302
98-141-M
SE
KENT99-233
SE
98-156-M

Pg.581
Pg. 586
Pg.589
Pg.593
Pg.598
Pg.606
Pg. 616
Pg.629
Pg. 633

WEVA98-111
CENT 2000-35-M
WEST 99-188-DM
KENT 98-121
KENT 94-574-R
PENN94-23
PENN99-222

Pg.651
Pg.654
Pg.659
Pg.672
Pg.683
Pg.689
Pg.690

ADMINISTRATIVE LAW JUDGE DECISIONS
05-03-2000 Consolidation Coal Company
05-05-2000 Allied Custom Gypsum Inc.
05-08-2000 David Morales v. Asarco, Incorporated
05-12-2000 Harlan Cumberland Coal Company
05-18-2000 Kyber Coal Company
05-18-2000 Cyprus Emerald Resources
05-24-2000 Eighty-Four Mining Company

i

MAY

2000

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

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. WEVA 98-148.
(Judge Feldman, March 31, 2000)
Bryce Dolan v. F & E Erection Company, Docket No. CENT 97-24-DM. (Judge Feldman,
April 25, 2000)
Secretary of Labor, MSHA v. Justis Supply & Machine Shop, Docket No. CENT 99-272.
(Judge Manning, April 20, 2000)

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

Secretary of Labor, MSHA v. Earl Begley, employed by Manalapan Mining Company,
Docket No. KENT 99-233. (Judge Weisberger, April 19, 2000)

ii

COMMISSION DECISIONS AND ORDERS

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

May3, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of KEVIN T. DONALD
Docket No. VA 99-110-DM

v.
ATLANTIC STATES MATERIALS, INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
ORPER AND AMENDED DECISION APPROVING SETTLEMENT
BY: Jordan, Chairman; Marks and Verheggen, Commissioners
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On November 17, 1999, Administrative Law
Judge Michael Zielinski issued a Decision Approving Settlement, granting a settlement motion
filed by the Secretary in this proceeding. The Secretary now requests the Commission to
substitute a corrected motion to approve settlement and to modify the judge's decision.
On June 21, 1999, the Secretary filed a complaint on behalf of Donald alleging a violation
of section 105(c) ofthe Mine Act, 30 U.S.C. § 815(c). S. Mot. to Substitute Mot. to Approve
Settlement at 1 (Feb. 25, 2000) (''S. Substitute Mot."). In her Motion to Substitute, the Secretary
states that, on approximately November 10, 1999, the parties "reached an agreement in principle
regarding the settlement of this case." S. Substitute Mot. at 2. On November 15, 1999, the
Secretary inadvertently filed with the judge a draft motion to approve a settlement agreement,
which had not been reviewed by the operator's counsel. Id.; see S. Mot. to Approve Settlement
(Nov. 15, 1999). On November 17, the judge issued his decision approving the settlement and
directing Atlantic States to pay the amounts set forth in the settlement agreement. Unpublished
Dec. dated Nov. 17, 1999. On February 25, 2000, the Secretary filed an unopposed motion to
substitute her November 15 motion to approve settlement, noting that she had mistakenly filed a
draft motion, and that Atlantic States had requested various changes to be made, including
requiring Donald to sign. S. Substitute Mot. at 2.
The judge's jurisdiction over this case terminated when his decision approving settlement
was issued on N<:>vember 17, 1999. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may
581

be sought by filing a petition for discretionary review within 3·0 days of its issuance. 30 U.S.C.
§ 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of
a decision's issuance, it becomes a final.decision of the Commission. 30 U.S.C. § 823(d)(l).
The Secretary's motion was received by the Commission on February 28, 2000, about two
months after the judge's decision became final. Under these circumstances, we treat the
Secretary's motion as a late-filed petition for discretionary review requesting amendment of a
final Commission decision. See Molloy Mining, Inc., 22 FMSHRC 292, 293 (Mar. 2000);
General Chemical Corp., 18 FMSHRC 704, 705 (May 1996).
A final Commission judgment or order may be reopened under Fed. R. Civ. P. 60(b)(l) &
(6) in circumstances such as mistake, inadvertence, excusable neglect, or other reasons justifying
relief. 29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply "so far as practicable" in
the absence of applicable Commission rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782
(May 1991). The Secretary inadvertently filed a draft motion to approve settlement with the
judge prior to its approval by Atlantic States. The judge entered his decision approving
settlement, directing Atlantic States to pay the amounts set forth in the settlement agreement.
The amended motion to approve settlement does not materially alter the terms of the agreement
set forth in the draft motion. The filing of the draft motion to approve settlement amounts to
mistake or inadvertence under Rule 60(b).
Accordingly, we reopen the final decision, and grant the Secretary's motion to substitute
her February 25 motion to approve settlement for her November 15 motion. 1 See Molloy Mining,
Inc., 22 FMSHRC at 294 (amending judge's decision approving settlement where the Secretary
mistakenly listed incorrect amounts for three proposed penalties settled by the parties); General
Chemical Corp., 18 FMSHRC at 705 (amending judge's dismissal order where the judge
mistakenly left out a citation in the caption and body of his order); Martin Marietta Aggregates,
16 FMSHR<; 189, 190 (Feb. 1994) (amendingjudge's decision approving settlement to reflect
correct penalty amount agreed to by the parties).

1

Commissioner Riley concludes that, because the judge committed no error in this
matter, this case should be remanded to the judge to allow him to correct the Secretary's clerical
error.
582

Further, it is ordered that the amended motion to approve settlement is granted. The
Decision Approving Settlement issued November 17, 1999, is hereby amended to reflect that the
Secretary fi1ed an amended motion to approve settlement on February 25, 2000 which accurately
represents the settlement agreement between the parties in this discrimination proceeding. The
parties shall comply with the terms of the settlement as set forth in the amended Motion to
Approve Settlement.

·:Mare tirt~Jiil Marks, Commissioner

Theodore F. Verheggen, Com

583

Commissioner Beatty, dissenting:
I respectfully dissent from the majority's amended decision approving settlement in this
case. Consistent with my dissenting opinion in Secretary ofLabor on behalfofMaxey v. Leeco
Inc., 20 FMSHRC 707 (July 1998), I continue to adhere to my position that this Commission has
no authority to approve back pay awards in discrimination cases under section 105(c) of the Mine
Act, 30 U.S.C. § 815(c). In my view, the only portion of the Secretary's Motion to Approve
Settlement that we have jurisdiction over is found in paragraph 3(d) of the Settlement Agreement
regarding the amount of the proposed civil penalty. S. Mot. to Approve Settlement (Feb. 25,
2000) at 3. Since a civil penalty is involved, I would remand this matter to the judge with strict
instructions that he only review and approve the language in paragraph 3(d).
I find it interesting in this case that the complainant and the operator have entered into a
separate settlement agreement and release to which the Secretary is not a party and whose terms
have not been disclosed. If the majority believes that this Commission has the authority to
review and approve the terms of back pay settlements in discrimination cases, I question why
they would not insist upon disclosure of the terms of this side agreement. Giving their stamp of
approval to a settlement agreement without full knowledge of all the terms of the agreement
appears to be inconsistent with their position.

584

Distribution
Melonie J. McCall, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Willa Perlmutter, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037
Kevin T. Donald
5235 Dickerson Road
Partlow, VA 22534
Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

585

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

May9, 2000
GARY D. MORGAN
Docket No. LAKE 98-17-D

v.

ARCH OF ILLINOIS

ORDER

On April 21, 2000, the Commission received a Motion to Reconsider Previous Petition
for Discretionary Review and Motion to Have Test Results Scientifically Analyzed from the
complainant, Gary D. Morgan. Under Commission Procedural Rule 78, 29 C.F.R. § 2700.78, a
motion for reconsideration must be filed within 10 days after a decision or order by the
Commission. The Commission denied Morgan's petition for discretionary review on March 24,
2000. Accordingly, Morgan's motion for reconsideration is untimely under the Commission's
rules.
Moreover, having examined the arguments raised by Morgan' s motion, we would deny
the request for reconsideration in any event. In his motion, Morgan has not raised any new
arguments concerning the judge's decisions that the Commission has not already considered.
Further, Morgan' s motion to have his test results scientifically analyzed is essentially a request to
reopen the record, which would be inappropriate at this stage of these proceedings.

586

For the foregoing reasons, the Motion to Reconsider and the Motion to Have Test Results
Scientifically Analyzed are denied. 1

~~~--

1\t~an. Chairtrlk

ames C. Riley, Commissioner

1

Commissioner Marks would grant the relief requested in the motions.
587

Distribution
Leonard D. Rice, Esq.
404 South Washington Street
Du Quoin, IL 62832
for Gary Morgan
Marco J. Rajkovich, Jr., Esq.
Robert I. Cusick, Esq.
Wyatt, Tarrant & Combs
250 West Main Street, Suite 1700
Lexington, KY 40507
for Arch of Illinois

588

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

May 11, 2000
SECRETARY OF LABOR,
MINE SAFETY A.NP HEALTH
ADMINJSTRATION (MSHA)

Docket No.

V.

SAN BENITO AGGREGATES,
INCORPORATED

WEST 2000-155-M
WEST 2000-156-M
WEST 2000-157-M
WEST 2000-158-M
WEST 2000-159-M
WEST 2000-160-M

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

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On February 7, 2000, the Commission received from San
Benito Aggregates, Inc. ("San Benito") a request to reopen six penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On M.arch 2, the Commission received the Secretary's response, opposing the request.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed~ final order of the Commission. 30 U.S.C. § 815(a).
In his letter, David Grimsley, owner of San Benito Aggregates, Inc. ("San Benito"), a
small quarry in Hollister, California, asserts that he was not informed by his staff of the
violations associated with these penalty assessments until he received a demand letter for
payment from the Department of Labor's Mine Safety and Health Administration ("MSHA") in
late December 1999. Mot. Grimsley states that he was not informed "for reasons unbelievable
to me." Id. He claims that he has reevaluated his operations and has made "serious adjustments
where needed." Id. He offers that his company is in financial crisis and that the penalties would
have a substantial impact. Id. Accordingly, San Benito requests an opportunity to contest the six
proposed penalties. Id.
589

The Secretary asserts that San Benito does not meet the standards for relief under Fed. R.
Civ. P. 60(b) because it has failed to establish that its conduct amounts to "excusable neglect."
S. Opp'n. to Mot. at 1-2. She states that the only explanation San Benito offers for its failure to
contest the penalty assessments is that it had internal management problems, and that mistakes
and omissions of an operator's staff do not constitute excusable neglect. Id. at 5-7. The
Secretary notes that San Benito received the six penalty assessments at issue, which include 61
violations totaling $33,722 in penalties, over the course of 6Yi months. Id. at 2-3, 7; Attach. A.
She asserts that San Benito also received five notices, one for each of the first five penalty
assessments, but failed to respond to either the penalty assessments or the notices until it received
a letter from MSHA dated December 8, 1999, demanding payment of all six penalty assessments
and threatening referral to the Department of Justice for collection. Id. at 3-4; Attach. B-D. The
Secretary also offers that San Benito is familiar with MSHA procedure because it received
penalty assessments for 120 violations over the past 13Yz years. Id. at 4; Attach. E. Finally, the
Secretary contends that granting San Benito relief under these circumstances would be unfair to
compliant operators and inconsistent with effective enforcement of the Mine Act. Id. at 7-8.
Accordingly, the Secretary requests that the Commission deny San Benito's request for relief. Id.
at 8.
·
We have held that, in appropriate circumstances and pursuant to Rule 60(b), we possess
jurisdiction to reopen uncontested assessments that have become final under section 105(a).
Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim Walter Resources, Inc., 15
FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and
that, ifthe defaulting party can make a showing of adequate or good cause for the failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with
Rule 60(b)(1 ), we have previously afforded a party relief from a final order of the Commission
on the basis of inadvertence or mistake. See Kinross Delamar Mining Co., 18 FMSHRC 1590,
1591-92 (Sept. 1996); General Chem. Corp., 18 FMSHRC 704, 705(May1996);Drummond
Co., 17 FMSHRC 883, 884 (June 1995).

590

On the basis of the present record, we are unable to evaluate the merits of San Benito's
request. Although it appears that San Benito has offered an -explanation for its failure to timely
fik a hearing request, it has not attached sufficiently reliable documents to substantiate its
allegations. Moreover, the Secretary, in her opposition, has alleged facts in addition to those
raised by San Benito. We are unable to evaluate this factual record at an appellate level. 1 In the
interest ofjustice, we thus remand the matter for assignment to a judge to determine whether San
Benito has met the criteria for relief under Rule 60(b). If the judge determines that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Com

Robert H. Beatty, Jr., Commissi

1

Commissioners Beatty and Riley believe that the Commission should remand to an
administrative law judge to determine whether the criteria for relief under Rule 60(b) have b~en
met whenever the request to reopen or any response thereto raises factual issues irrespective of
whether or not the Secretary of Labor objects to or opposes an operator's request for relief.
Commissioners Beatty and Riley believe that any factual issues raised by a request to reopen
under Rule 60(b) or any response should be resolved in the first instance by a judge, as the trier
of fact.
591

Distribution
David P. Grimsley
San Benito Aggregates, Inc.
151 Hillcrest Road
Hollister, CA 95023
W. Christian Schumann, Esq.
Office of the Solicitor
U.S . Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

592

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

May 18, 2000

DONALD L. RIBBLE
Docket No. LAKE 2000-25-DM

v.
T & M DEVELOPMENT COMPANY

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

DIRECTION FOR REVIEW AND DECISION
BY: THE COMMISSION
Pursuant to Commission Procedural Rule 71, 29 C.F.R. § 2700.71, on our own motion,
we direct review of the judge's April 18, 2000 Order of Dismissal in this case on the ground that
it is contrary to law and Commission policy. 30 U.S.C. § 823(d)(2)(B). For the reasons set forth
below, we vacate the judge's decision and remand this matter to him to conduct further
proceedings consistent with this order.
I.

Factual and Procedural Background
On December 20, 1999, Donald Ribble filed a prose discrimination complaint with the
Commission pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c)(3) (1994) ("Mine Act"). 1 In his complaint, Ribble alleges that his former
employer, T & M Development Company ("T & M"), fired him on August 17, 1999 after he

1

In order to succeed in a discrimination case under the Mine Act, a miner has to present
evidence that could convince a judge that (1) the miner engaged in protected activity (for
example, reporting a safety violation), (2) the miner suffered an adverse employment action, and
(3) the adverse action was motivated by the protected activity. Secretary ofLabor on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev 'don other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor
on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).
593

sustained a back injury on August 11, 1999. Ribble also alleges that after his injury, but before
being fired, he repeatedly and unsuccessfully attempted to obtain an accident report from T & M.
Compl. at 1. Ribble also submitted to the judge notes of a September 20, 1999, interview
between Ribble and two Mine Safety and Health Administration ("MSHA") investigators in
which Ribble details several complaints he made to mine inspectors regarding safety problems at
T & M, although it is unclear when these complaints were made. Notes at 7-8.
Ribble's complaint was assigned to Commission Administrative Law Judge Gary Melick.
On March 28, 2000, Judge Melick issued on his own motion an Order to Show Cause in which
he stated that Ribble's complaint failed to "allege facts constituting a violation" of the Mine
Act's anti-discrimination provision, section 105(c)(l), 30 U.S.C. § 815(c)(l). Order at 2. The
judge directed Ribble "to show cause (explain why) on or before April 14, 2000, why this case
should not be dismissed." Id. (emphasis in original).
On April 18, 2000, Judge Melick issued an Order of Dismissal reiterating the points made
in his Order to Show Cause, stating that Ribble failed to respond to that order, and dismissing the
case. On April 21, 2000, the Commission received a letter from Ribble dated April 17 bearing a
postmark of April 18, 2000, in which he essentially responded to the judge's Order to Show
Cause. Ribble stated, inter alia, that when he "asked for a[n] accident report form to fill out at
the time [he] fell," his supervisor "had all kind[s] of excuse[s]," and that "three day[s] before I
got fired they didn't even want me to fill out a[n] accident report form." Letter at 1.

II.
Disposition
Althqugh in his Order to Show Cause and Order of Dismissal the judge did not cite Rule
l 2(b)(6) of the Federal Rules of Civil Procedure or use its terminology, he in essence dismissed
Ribble's complaint for failure to state a claim upon which relief could be granted.2 In Perry v.
Phelps Dodge Morenci, Inc., the Commission stated as follows regarding Rule 12(b)(6):
It is well settled that "[t]he motion to dismiss for failure to
state a claim is viewed with disfavor and is rarely granted." The
Supreme Court has held that "a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Additionally, we hold the pleadings of
pro se litigants to less stringent standards than pleadings drafted by
attorneys. In cases brought by pro se complainants, motions to

2

See 29 C.F.R. § 2700.1 (b) ("On any procedural question not regulated by [the
Commission's Procedural] Rules ... the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure ...").

594

dismiss for failure to state a claim should rarely be granted.
Instead, in such a case, a judge should ensure that he informs
himself of all the available facts relevant to his decision, including
the complainant's version of those facts.
18 FMSHRC 1918, 1920 (Nov. 1996) (citations omitted).
Here, as in Perry, a prose discrimination complaint was dismissed for failure to state a
claim- although in this case, Ribble's complaint was dismissed by the judge sua sponte rather
than on any motion filed by a party. Under the stringent standard set forth in Perry, we find the
judge's initial conclusion in his Order to Show Cause that Ribble's "Complaint does not allege
facts constituting a violation of Section 105(c)(l)" erroneous. It follows that his decision to
dismiss Ribble's complaint was also erroneous.
To state a claim, Ribble's complaint had to set forth "a short and plain statement of the
facts, setting forth the alleged ... discrimination ... and a statement of the relief requested."
29 C.F.R. § 2700.42. We find that the complaint met this minimal burden. Ribble alleged that
he engaged in protected activity, namely, requesting an accident report form on which to report
his injury.3 The protected nature ofRibble's request arises from T & M's obligation under 30
C.F.R. § 50.20 to report Ribble's injury to MSHA. In addition, we note that Ribble's statement
to MSHA, included as part of his complaint, mentions safety problems he reported to mine
inspectors, which would also clearly be protected activity. Furthermore, Ribble's allegation that
T & M terminated him is an assertion of adverse action. There may also be a close connection in
time between the adverse action allegedly taken by T & M against Ribble and his request (as
reported in his complaint) that he be permitted to fill out an accident report, which could indicate
discriminatory motivation. See Secretary ofLabor on behalfof Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2;508, 2511 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983)
(coincidence in time between protected activity and adverse action may be circumstantial indicia
of discriminatory intent). On the record before us, we therefore find that Ribble has met his
burden of alleging discrimination actionable under section 105(c).
In Perry, we warned against requiring a pro se complainant to begin proving his or her
"prima facie case at a stage in th~ proceedings when [the complainant isJ simply obligated to
meet the Commission's minimal pleading requirements." 18 FMSHRC at 1921. Accordingly,
Ribble must now be afforded the opportunity to prove his allegations, and to avail himself of all
the other rights afforded under our Procedural Rules, including discovery and, if necessary, a full
hearing.

3

Under Rule 12(b)(6), we must construe the complaint in the light most favorable to
Ribble, and must assume that his allegations are true. See SA Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure: Civil§ 1357, at 304 (2d ed. 1990). We must also
liberally construe the complaint, which was filed prose. Marin v. Asarco, Inc., 14 FMSHRC
1269, 1273 (Aug. 1992).
595

III.
Conclusion
For all the foregoing reasons, we vacate the judge's dismissal order and remand this
matter for further evidentiary proceedings consistent with this order.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

-~/
Robert H. Beatty, Jr., Commission

596

Distribution
Mr. Donald Ribble
4775 22nd Avenue
Hudsonville, MI 49426
Marlene J. VanPatten, Manager
Thompson-McCully Company
P.O. Box 787
Belleview, MI 48111
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

597

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

May25, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 99-39-M

V.

DOUGLAS R. RUSHFORD TRUCKING

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

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977 ("Mine Act" or "Act"), 30 U.S.C. § 801 et seq. (1994). At issue is Commission
Administrative Law Judge Gary Melick's decision assessing a penalty against Douglas R.
Rushford Trucking ("Rushford") for a violation of30 C.F.R. § 56.14104(b)(2), as charged in a
citation issued by the Department of Labor's Mine Safety and Health Administration ("MSHA")
in connection.with a fatal accident that occurred at Rushford's Seymour Road Pit. 22 FMSHRC
74, 76-78, 80 (Jan. ;woo) (ALJ). The Commission granted the Secretary's petition for
discretionary review challenging the judge's penalty assessment. For the reasons that follow, we
vacate the judge's penalty assessment and remand for reassessment.
Our decision in this matter is one of three decisions we are issuing today regarding the
Commission's penalty assessment authority under section 1lO(i) of the Mine Act, 30 U.S.C.
§ 820(i). 1

1

The other decisions concerning Commission penalty assessments we are issuing today
are Hubb Corp.,.Docket No. KENT 97-302, and Cantera Green, Docket No. SE 98-141-M.
598

I.
Factual and Procedural Background
Rushford Trucking operates the Seymour Road Pit in Clinton County, New York. S.
Pretrial Statement, Stipulations ii 1. On August 28, 1998, when Rushford employee Nile Arnold
attempted to inflate a tire on a fuel truck, the wheel rim exploded and struck Arnold in the head.
22 FMSHRC at 74-75. At the time, Arnold was not using a stand-off inflation device, nor was
there such a device available on the mine site. Id. at 75-76. On August 30, 1998, Arnold died as
a result of the injuries he sustained. Id. at 74.
After conducting an investigation, MSHA charged Rushford with violating section
56.14104(b)(2), which requires that stand-off inflation devices be used "[t]o prevent injury from
wheel rims during tire inflation." 30 C.F.R. § 56.14104(b)(2). MSHA also alleged that
Rushford's violation was significant and substantial ("S&S") and the result ofRushford's
unwarrantable failure to comply with section 56.14104(b)(2).2 The agency proposed that the
Commission assess a penalty of$25,000 against Rushford. Pet. for Assessment of Civil Penalty,
Ex. A (May 24, 1999).
The judge found the violation "proven as charged." 22 FMSHRC at 76. He also found
the violation S&S and due to Rushford's unwarrantable failure to comply with the cited standard.
Id. at 76-78. fu his discussion of the violation, the judge also found Rushford grossly negligent.
Id. at 77-78. He based his unwarrantable failure and negligence findings on evidence that
Rushford "never bothered to obtain a copy of the health and safety regulations governing the
operation of [the] mine and the credible evidence that not only did the deceased fail to use an
appropriate device for protection during tire inflation but that no such device was available either
at the mine sit.e ... or at the mine shop." Id. at 77. The judge also found "credible [MSHA)
fuspector Gadway_'s testimony that mine owner Douglas Rushford did not even know what a
stand-off inflation device was." Id. at 78.
The j udge made the following findings in support of his assessment of both a $3,000
penalty for the violation of section 56.14104(b)(2) and a $100 penalty for a violation of 30 C.F.R.
§ 50. l 0 not at issue here: "fu ass.essing civil penalties herein I have also considered the
operator's small size, lack of a history of recent violations, apparent good faith abatement and
absence of evidence that the penalties would affect its ability to stay in business." Id. at 80.

2

The S&S terminology is taken from section 104(d)(l) of the Act, which distinguishes as
more serious any violation that "could significantly and substantially contribute to the cause and
effect of a ... mine safety or health hazard." 30 U.S.C. § 814(d)(l ). The unwarrantable failure
terminology is also taken from section 104(d)(l) of the Act, which establishes more severe
sanctions for any violation that is caused by "an unwarrantable failure of [anJ operator to comply
with ... mandatory health or safety standards." Id.
599

II.
Disposition
On appeal, the Secretary argues that the judge erred in failing to sufficiently explain how
he weighed the six statutory penalty criteria (S. PDR at 10-11 ),3 to explain his pronounced
departure from the Secretary's penalty proposal (id.), and to make specific factual findings on
each of the individual penalty criteria (id. at 11). In its Statement in Opposition, Rushford argues
that, as to his penalty assessment, the judge "clearly took into account the six (6) statutory
penalty criteria and applied [the] same in reducing the penalty." Opp. at 2. Rushford also argues
that the Secretary's PDR should be dismissed because it was filed late and that review should not
be granted because the company already paid the penalty assessed by the judge. Id. at 2-3.
The principles governing the Commission's authority to assess civil penalties de novo for
violations of the Mine Act are well established. Section 1 lO(i) of the Mine Act delegates to the
Commission "authority to assess all civil penalties provided in [the] Act." 30 U.S.C. § 820(i).
The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and
820(a). When an operator notifies the Secretary that it intends to challenge a penalty, the
Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44.
The Act requires that, "[i]n assessing civil monetary penalties, the Commission shall consider"
the six statutory penalty criteria:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 u.s.c. § 820(i).
In keeping with this statutory requirement, we have held that "findings of fact on the [six]
statutory penalty criteria must be made." Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar.
1983), aff'd, 736 F.2.d 1147 (7th Cir. 1984). Although findings on each of the criteria may be
entered by the Commission on review based on undisputed record evidence (see Sellersburg, 736

3

In our Direction for Review, we stated that we would consider the Secretary's PDR as
her opening brief. We also gave Rushford leave to file a response to the Secretary's PDR in
addition to the Statement in Opposition it filed February 24, 2000. Rushford filed no response.
600

F.2d at 1153), this duty lies with the judge in the first instance, c;ts is made clear in our Procedural
Rules. Rule 30(a) provides:
In assessing a penalty the Judge shall determine the amount
of penalty in accordance with the six statutory criteria contained in
section 11 O(i) ... and incorporate such determination in a written
decision. The decision shall contain findings of fact and
conclusions of law on each of the statutory criteria and an order
requiring that the penalty be paid.
29 C.F.R. § 2700.30(a). When reviewing a judge's factual findings on the six penalty criteria, we
apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I).
Findings of fact on the penalty criteria are necessary to provide the respondent with notice
as to the basis upon which the penalty is being assessed. Sellersburg, 5 FMSHRC at 292. The
findings also provide the Commission and any reviewing court with the information they need to
accurately determine whether a penalty is appropriate. Id. at 292-93.
Once findings on the statutory criteria have been made, a judge's penalty assessment for a
particular violation is an exercise of discretion, which is bounded by proper consideration of the
statutory criteria and the deterrent purposes underlying the Act's penalty assessment scheme. Id.
at 294. Although we review a judge's penalty assessment under an abuse of discretion standard
(U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984)), in order for us to determine whether a
judge has properly considered the statutory criteria, the judge must provide a reasoned
explanation for his or her penalty assessment. As we have held in another context, "[a] judge
must analyze and weigh the relevant testimony of record, make appropriate findings, and explain
the reasons for his decision." Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June
1994). 4

An explanation is particularly essential when a judge's penalty assessment substantially
diverges from the Secretary's original penalty proposal. Sellersburg, 5 FMSHRC at 293. As we
noted in Sellersburg, without an explanation for such a divergence, "the credibility of the
administrative scheme providing for the increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness." Id.; see also Unique Electric, 20 FMSHRC 1119,
1123 n.4 (Oct. 1998); Dolese Bros. Co., 16 FMSHRC 689, 695 (Apr. 1994).
The majority of cases decided by this Commission and its judges demonstrate that,
generally, our judges' penalty assessments are made in accordance with these principles.
Nevertheless, we reiterate them at some length here because, as we also note in the other

4

See also Anaconda Co., 3 FMSHRC 299, 299-300 (Feb. 1981) ("Our function is
essentially one of review. Without findings of fact and some justification for the conclusions
reached by the judge, we cannot perform that function effectively.").
601

decisions issued today, in recent years we have found it neces_sary to remand several cases due to
penalty assessments that lacked the requisite findings on the section 11 O(i) penalty criteria.
The instant proceeding is such a case as it presents us with a penalty assessment that lacks
the precision necessary for appellate review. We find that the judge erred in several respects.
First, he neglected to make findings on all of the section 11 O(i) criteria. Specifically, he made no
explicit finding on the gravity ofRushford's violation of section 56.14104(b)(2).5 He must do so
on remand.
Second, although we agree with the Secretary that a judge "is not required to provide a
lengthy or exhaustive analysis of the evidence" when assessing a penalty under the Mine Act (S.
PDR at 8 n.3), a penalty assessment must provide enough explanation and analysis to enable
meaningful appellate review. Here, although the judge stated he "considered the operator's small
size, lack of a history of recent violations, apparent good faith abatement and absence of
evidence that the penalties would affect its ability to stay in business" (22 FMSHRC at 80), he
neglected to explain how his consideration of these factors affected his penalty assessment leaving us with no rationale to examine in determining whether the judge properly considered the
statutory criteria and the deterrent purposes of the Act. On remand, the judge must provide a
more complete explanation of his penalty assessment. If on remand the judge again decides that
a substantial reduction in the penalty proposed by the Secretary is warranted, he must explain any
such decision, especially in light of his finding of"gross negligence."
Regarding the judge's finding that Rushford has a "lack of a history of recent violations"
(22 FMSHRC at 80), the record indicates that between 1993 and 1998, the company did not file
quarterly reports with MSHA as required under 30 C.F.R. § 50.30. Tr. I 239-41. Although the
Secretary asserts that the reason MSHA did not inspect the mine during the relevant period was
because ofRushford's failure to file quarterly reports (S. PDR at 12), she offers inadequate
record support to substantiate this contention. If due in some way to the company's failure to
meet a reporting requirement, Rushford' s lack of a history of violations certainly could not
properly be considered as a mitigating factor in a penalty assessment. Given that the record is
unclear on this point, however, we direct the judge on remand to examine all relevant evidence
on this issue, including whether any inspections occurred during this period and if not, the reason
why they were not conducted. He may also order the record to be reopened on this issue if
necessary. He must then enter a new finding on Rushford's history of violations.
We reject Rushford's argument that the Secretary's PDR was filed one day late and
should be dismissed. Opp. at 2-3. The Secretary's PDR was timely filed on February 18, which
is thirty days after January 20, "the day from which the designated period [began] to run."
29 C.F.R. § 2700.8. Rushford also argues that "it would clearly be prejudicial and unfair to the
Respondent to now grant a review ... after [Rushford] has paid in full the penalties imposed."
5

Such a finding is necessary despite the judge's determination that the violation was

S&S.
602

Opp. at 3. This argument lacks merit. The appeal provisions <?f the Mine Act are not superseded
by payment of a disputed penalty. See 30 U.S.C. § 823(d)(2)(A). Finally, Rushford raises
several factual issues in its Statement-in Opposition to the Secretary's PDR. Opp. at 2. The
factual contentions, however, are outside the scope of the grounds on which we granted review,
as set forth in the Secretary's PDR, 30 U.S.C. § 823(d)(2)(A)(iii), and therefore we do not reach
them.

603

III.

Conclusion
For the foregoing reasons, we vacate the judge's penalty assessment and remand for
reassessment consistent with this opinion.

•
Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Theodore F. Verheggen, Commiss ·

604

Distribution
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Thomas M. Murnane, Esq.
Stafford, Trombley, Owens & Curtis, P.C.
One Cumberland A venue
P.O. Box 2947
Plattsburgh, NY 12901
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

605

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

May 25, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. KENT 97-302

HUBB CORPORATION

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
DECISION
BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge Avram
Weisberger determined that Hubb Corporation ("Hubb") committed significant and substantial
("S&S") violations of two mandatory safety standards. 20 FMSHRC 615, 617-19, 620-22 (June
1998) (ALJ). He found that the violations were of high gravity and assessed penalties of$4,000
for each violation. Id. at 620, 622. The Commission granted Hubb's petition for discretionary
review challenging the judge's penalty assessments. For the following reasons, we vacate the
penalty assessments and remand for reassessment.

Our decision in this matter is one of three decisions we are issuing today regarding the
Commission's penalty assessment authority under section 11 O(i) of the Mine Act, 30 U.S.C.
§ 820(i). 1

1

The other decisions concerning Commission penalty assessments we are issuing today
are Cantera Green, Docket No. SE 98-141-M, and Douglas R. Rushford Trucking, Docket No.
YORK 99-39.-M.
606

I.
Factual and Procedural Back~ound
On November 7, 1996, Inspector William R. Johnson of the Department of Labor' s Mine
Safety and Health Administration ("MSHA") inspected the 005 Section at Hubb's No. 5 Mine in
Peny County, Kentucky, and found that the ventilation deflector curtain in the No. 7 heading was
66 feet beyond the deep.e st point of penetration of the working face. 20 FMSHRC at 617; G. Ex.
5 at 7. He issued a section 104(d)(l) order (No. 4582535) alleging an S&S violation of 30
C.F.R. § 75.370(a)(1)2 due to Hubb's unwarrantable failure to follow its approved ventilation
plan, which provided that. the maximum distance from the end of the ventilation curtain to the
point of deepest penetration of the working face should be 40 feet. 20 FMSHRC at 617, 619-20;
G. Ex. 5 at 8.
Also on November 7, Inspector Johnson observed two blocks of rib in the No. 6 entry that
were loose from the wall. 20 FMSHRC at 620. One block was 15 feet long, 6 feet high, and 1
foot thick, and was located just inby the last open crosscut. Id. The other block was 10 feet long,
4 feet high, and 1 foot thick, and was located just inby the next-to-last open crosscut. Tr. 287; G.
Ex. 7. The inspector issued a section 104(d)(l) order (No. 4582536) alleging an S&S violation
of30 C.F.R. § 75.202(a)3 resulting from Hubb's unwarrantable failure. 20 FMSHRC at 620,
622. The Secretary of Labor proposed $6,000 and $6,500 penalties for the ventilation and rib
violations, respectively. S. Pet. Assessment of Penalty, Ex. A. Although Hubb did not dispute
either violation, it did dispute the Secretary's S&S and unwarrantable failure designations for
both violations. H. Post-hearing Br. at 15-16, 19-20.
The judge determined that Hubb violated 30 C.F.R. § 75.370(a)(l) by failing to follow
the approved ventilation plan. 20 FMSHRC at 617. He concluded that the violation was S&S
because of the lack of adequate ventilation at the face, the mine' s history of methane releases, the
possibility of an explosion caused by sparks created by the continuous miner's bits and, in the
event of an explosion, the possibility of injury to seven miners. Id. at 617-18. The judge
determined that, because Hubb management was not aware of the violation prior to citation, the
violation was not the result of unwarrantable failure, and he modified the order to a section
104(a) citation that was S&S. Id. at 620. He found that the violation resulted from "more than
moderate" negligence and was of a high degree of gravity, in that it could have resulted in miners
suffering serious burns or suffocation. Id. The judge assessed a penalty of $4,000. Id.

2

30 C.F.R. § 75.370(a)(l) states in pertinent part that "[t]he operator shall develop and
follow a ventilation plan approved by the [MSHA] district manager."
3

30 C.F.R. § 75.202(a) states in pertinent part that "[t]he roof, face and ribs of areas
where persons work or travel shall be supported or otherwise controlled to protect persons from
hazards related t9 falls of the roof, face or ribs . . .. "
607

The judge found that Hubb violated 30 C.F.R. § 75.202(a) by failing to adequately ensure
that the two blocks of rib would not fall on persons traveling or working nearby. 20 FMSHRC at
620. He determined that the rib violation was S&S because it exposed miners to possible rib
falls. Id. at 621. However, he concluded that, because Hubb management was not aware of the
violation prior to citation, the violation was not due to unwarrantable failure, and he amended the
order to a section 104(a) citation that was S&S. Id. at 621-22. The judge determined that the
violation resulted from "not more than moderate" negligence but was of a high degree of gravity,
in that it could have resulted in a fatality. Id. at 622. The judge assessed a penalty of $4,000. Id.

Il.
Disposition
Hubb first argued that the judge erred in assessing $4,000 penalties for each violation
because he did not make findings sufficient to waive the assessment formula under 30 C.F.R.
§ I 00.3, and assess the penalty under 30 C.F.R. § I 00.5. H. Br. at 4-6. The Secretary responded
that, because 30 C.F.R. Part 100 is only binding on the Secretary and not Commission judges, the
judge acted within his discretion in assessing a $4,000 penalty for each violation. S. Br. at 6-15.
In its reply brief, Hubb acknowledges that the judge could not have assessed the penalties under
30 C.F.R. Part 100. H. Reply Br. at 1. However, Hubb argues that the judge was required to
consider the criteria listed in section 1 lO{i) of the Mine Act, 30 U.S.C. § 820(i),4 when assessing
the penalties, and that he failed to consider the criterion of good faith in attempting to achieve
rapid compliance as applied to Hubb. H. Reply Br. at 1.
Hubb also asserts that substantial evidence does not support the judge's findings that the
ventilation and rib violations were of high gravity and could have resulted in serious injuries or
fatalities. H. Br. at 7-8. Regarding the ventilation violation, Hubb contends that there was no
danger of a serious injury or fatality because no methane was present at the time of the violation.
Id. at 7. Regarding the rib violation, Hubb argues that there was no likelihood of any fatalities
from a rib fall because of the size of the rib blocks in question and the fact they were hard to
remove. Id. at 8; H. Reply Br. at 4-5.

4

Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties
·
under the Act:

[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 u.s.c. § 820(i).
608

The Secretary contends that the judge found correctly that there was high gravity
associated with the ventilation violation because the mine had a history of methane releases and
sparks from the bits of the continuous miner "created a reasonable likelihood of an explosion
[that] would likely cause a serious or fatal injury .... " S. Br. at 11-12. The Secretary also
argues that the judge determined correctly that the rib violation involved high gravity because it
was undisputed that there were cracks around the cited ribs and that miners traveled close to the
cited ribs. Id. at 12-15. She requests that the Commission affirm the judge's decision in its
entirety. Id. at 16.
In reviewing a judge's penalty assessment, the Commission must determine whether the
penalty is supported by substantial evidence and is consistent with the statutory penalty criteria.5
While "a judge's assessment of a penalty is an exercise of discretion, assessments lacking record
support, infected by plain error, or otherwise constituting an abuse of discretion are not immune
from reversal ...." US. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984).
A.

Gravity

The gravity penalty criterion contained in section 1lO(i) of the Mine Act requires an
evaluation of the seriousness of the violation. Consolidation Coal Co., 18 FMSHRC 1541, 1549
(Sept. 1996); Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (Mar. 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984). In evaluating the seriousness of a violation, the Commission has focused on "the
effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC at 1550. The judge's
discussions of gravity are admittedly terse. Nevertheless, we conclude that his findings are
sufficient to support his conclusions of high gravity for both violations.
1.

Ventilation Violation

We are not persuaded by Hubb's contention that the absence of methane at the time of the
inspection, and that the continuous miner will automatically cut off power if 2 percent or more
methane is detected; requires the Commission to reverse the judge's high gravity finding. The
judge accepted Inspector Johnson's uncontradicted testimony that the mine had a history of
methane releases, that during the ventilation violation there was a lack of adequate ventilation at
the face, that sparks from the continuous miner provided ignition sources, and that in the event of
an explosion, seven miners could·have suffered bums. 20 FMSHRC at 617-20. MSHA
Inspector Darius Day also gave uncontradicted testimony that additional ignition sources
sometimes occur when sparks are caused by rocks or roof bolts falling from the roof and striking

5

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(n. "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
609

rocks on the ground. Tr. 370, 385, 398. Accordingly, we find _that substantial evidence supports
the judge's high gravity determination.6
2.

Rib Violation

We disagree with Hubb's argument that, because the cited rib blocks were small, hard to
remove, and unlikely to fall, substantial evidence does not support the judge's finding that the rib
violation was of a high degree of gravity. H. Br. at 8; H. Reply Br. at 4. The judge considered
Inspector Johnson's uncontradicted testimony that cracks ran the length of the blocks. 20
FMSHRC at 620-21. He noted that Johnson had previously investigated rib falls that had
resulted in injuries and fatalities and that Johnson believed that the cited blocks might fall. Id. at
620. He further considered Johnson's testimony that all miners in the unit passed near the cited
blocks in shuttle cars and, although the shuttle cars had canopies, the miners inside could still be
injured by falling rib because the sides were open. Id. The judge also noted that neither section
foreman "[Scott] Day nor Denny Whitaker, Hubb's superintendent, contradicted or impeached
Johnson's testimony regarding the exposure of miners to the hazard contributed to by the
violation at issue." Id. at 619, 621. We find that the evidence relied on by the judge constitutes
substantial evidence which supports his determination that the rib violation was of high gravity.7
B.

Abatement. Violation History. Size. and Effect on Ability to Continue in Business
1.

Motion to Strike

The Secretary filed a motion to strike those portions of Hubb' s reply brief that argue the
judge failed to consider Hubb's good faith in achieving rapid compliance under section l lO(i).
S. Mot. to Strike at 1. She contends that the issue is not before the Commission because Hubb
did not raise it in its petition for discretionary review. Id. In response to the Secretary's motion
to strike, Hubb argues that it raised the good faith criterion under section 11 O(i) because it raised
a similar good faith requirement in its original brief when it discussed the penalty assessment
requirements of section 100.3(f). H. Resp. to Mot. to Strike at 1-2.
Section l 13(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(iii), and Commission
Procedural Rule 70(g), 29 C.F.R. § 2700.70(f), provide that Commission review is limited to the
questions raised in a granted petition for discretionary review or by the Commission sua sponte.

6

Although the gravity penalty criterion and a finding of S&S are not identical, they are
.frequently based upon the same or similar factual circumstances. Quin/and Coals, Inc., 9
FMSHRC 1614, 1622 n.11 (Sept. 1987). The judge's uncontested S&S findings concerning the
likelihood of an explosion and the severity of the resulting injuries (see 20 FMSHRC at 617-19)
provide further support for the judge's high gravity determination.
7

As with the curtain violation, the judge's uncontested S&S findings (see 20 FMSHRC
at 621) provide further support for the judge's high gravity determination for the rib violation.
610

See Wyoming Fuel Co., 16 FMSHRC 1618, 1623 (Aug. 1994), ajf'd, 81F.3d173 (10th Cir.
1996) (table) (holding that Commission "review is limited to the questions raised in the petition
and by the Commission sua sponte"); Broken Hill Mining Co., 19 FMSHRC 673, 678 n.9 (Apr.
1997) (same).
As the Secretary points out, instead of citing the abatement penalty criterion under section
1 lO(i) in its petition, Hubb mistakenly discussed the abatement penalty criterion under sections
100.3 and 100.5. H. PDR at 6-8. It is well settled that the Commission assesses penalties de
novo and is not bound by the Secretary's Part 100 regulations. Topper Coal Co., 20 FMSHRC
344, 350 n.8 (Apr. 1998); Sellersburg, 5 FMSHRC at 291, ajf'd, 736 F.2d at 1152. The first time
Hubb referenced the section 11 O(i) penalty criteria was in its reply brief.
The abatement penalty criteria in section 100.3(a)(5) and in section 1lO(i), however,
share virtually identical language. The good faith penalty criterion is described in section
100.3(a)(5) as "[t]he demonstrated good faith of the operator charged in attempting to achieve
rapid compliance after notification of a violation" (30 C.F.R. § 100.3(a)(5)) while in section
1lO(i) it is described as "the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation" (30 U.S.C. § 820(i)). In view of the
complete substantive overlap of the two provisions, we find that Hubb's discussion of the penalty
criteria under section 100.3 in its petition was sufficiently related to the good faith penalty
criterion under section 11 O(i) to conclude that Hubb raised the criterion in its petition. See Rock
of Ages Corp., 20 FMSHRC 106, 115 n.11 (Feb. 1998), aff'd in part on other grounds, 170 F.3d
148 (2d Cir. 1999) (holding that, although not explicitly discussed in petition, issue was raised
because it was sufficiently related to another issue raised in petition); Fort Scott FertilizerCullor, Inc., 19 FMSHRC 1511, 1514 & n.4 (Sept. 1997) (finding that issue was raised in
petition by implication). Therefor~. we deny the Secretary's motion to strike those portions of
Hubb's reply brief that argue the judge failed to consider Hubb's good faith in achieving rapid
compliance under section 11 O(i).
2.

Consideration of the Section 11 O(i) Penalty Criteria

As a general rule, Commission judges are accorded broad discretion in assessing civil
penalties under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). We
have held, however, that such discretion is not unbounded and must reflect proper consideration
of the penalty criteria set forth in section 11 O(i) and the deterrent purpose of the Act. Id. (citing
Sellersburg, 5 FMSHRC at 290-94). In Sellersburg, we stated unequivocally that "[w]hen an
operator contests the Secretary's proposed assessment of penalty, thereby obtaining the
opportunity for a hearing before the Commission, findings of fact on the statutory penalty criteria
must be made." 5 FMSHRC at 292 (emphasis added). In addition, our Procedural Rules also
make this duty unequivocally clear. Rule 30(a) provides:

In assessing a penalty the Judge shall determine the amount
of penalty in accordance with the six statutory criteria contained in
611

section 1lO(i) . .. and incorporate such determination in a written
decision. The decision shall contain findings offact and
conclusions oflaw on each of the statutory criteria and an order
requiring that the penalty be paid.
29 C.F.R. § 2700.30(a) (emphasis added).
The requirement that our judges make findings of fact on each of the section 11 O(i)
penalty criteria serves two important and distinct purposes. First, from a strictly due process
standpoint, these findings provide the respondent and the regulated community with the
appropriate notice as to the basis upon which the penalty is being assessed. Sellersburg, 5
FMSHRC at 292-93. Second, findings of fact on the section 11 O(i) penalty criteria supply the
Commission and any reviewing court with the information needed to accurately determine if the
penalties assessed by the judge are appropriate, excessive, or perhaps insufficient. Id. This is
consistent with the broader requirement that "[a] judge must analyze and weigh the relevant
testimony of record, make appropriate findings, and explain the reasons for his decision."
Mid-Continent Resources, Inc., 16 FMSHRC 121 8, 1222 (June 1994). As the Commission
explained in an earlier decision: "Our function is essentially one of review. Without findings of
fact and some justification for the conclusions reached by the judge, we cannot perform that
function effectively." Anaconda Co., 3 FMSHRC 299, 299-300 (Feb. 1981) (citations omitted).
This latter purpose is particularly important in the instant case, where the judge made a
significant reduction in the penalties he assessed ($4,000 per violation) from the penalty amount
proposed by the Secretary ($6,500 and $6,000). As a unanimous Commission stated in
Sellersburg:
When ... it is determined that penalties are appropriate which
substantially diverge from those originally proposed, it behooves
the Commission and its judges to provide a sufficient explanation
of the bases underlying the penalties assessed by the Commission.
If a sufficient explanation for the divergence is not provided, the
credibility of the administrative scheme providing for the increase
or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.
5 FMSHRC at 293.
Despite the Commission's clear mandate in Sellersburg and related cases, and in its
Procedural Rules, we have repeatedly found it necessary to remand cases for penalty assessments
because judges have failed to enter the requisite findings. See, e.g., Secretary ofLabor on behalf
ofHyles v. All American Asphalt, 21FMSHRC119, 142 (Feb. 1999); Rock ofAges, 20
FMSHRC at 126; Secretary ofLabor on behalfof Glover v. Consolidation Coal Co., 19
FMSHRC 1529, 1539 (Sept. 1997); Fort Scott, 19 FMSHRC at 1518; Thunder Basin Coal Co.,
612

19 FMSHRC 1495, 1502-03 (Sept. 1997). In the majority of cases heard under the Act, records
are developed on the section 11 O(i) criteria and penalties are assessed properly and efficiently.
Cases in which this does not occur, however, have become frequent enough to give us pause.
We intend that the three decisions we issue today will convey our message that it is imperative
that this Commission avoid giving short shrift to our statutory duty to assess Mine Act penalties
under section 1 lO(i).
Therefore, we remand this case for reassessment of civil penalties because the judge
failed to make findings on several of the section 11 O(i) penalty criteria, in accordance with the
express requirements of the Mine Act. We agree with Hubb that, as to both violations, the judge
did not make findings on the operator's good faith in achieving rapid compliance when he
assessed penalties under section 1lO(i).8 Furthermore, as to both v~olations, the judge made no
findings on the operator's size, effect on ability to continue in business, and history of violations9
penalty criteria under section 11 O(i). We also note that at trial the Secretary did not introduce
adequate evidence or advance any arguments on the section 11 O(i) criteria.
Accordingly, we vacate the penalties imposed for the two violations and remand for entry
of detailed findings as to each of the six section 11 O(i) criteria and reassessment of an appropriate
penalty for each violation.

8

Chairman Jordan notes that although the judge erred by failing to even acknowledge the
need to consider the operator's "demonstrated good faith ... in attempting to achieve rapid
compliance after notification of a violation" (30 U.S.C. § 820(i)), she believes this factor carries
little weight in the instant case. Since the operator in this case received a withdrawal order, not
merely a citation, it could not resume normal operations until it had achieved compliance. In
light of this fact, Chairman Jordan believes prompt abatement should not serve as a mitigating
factor.
9

Although the judge stated that he took "into account Hubb's history of violations" when
assessing the ventilation violation (20 FMSHRC at 620), he failed to make any separate findings
of fact, as required by section 11 O(i), concerning Hubb' s previous violations. When he makes
such a finding on remand, we direct him to review Hubb's previous violations and enter a
qualitative finding rather than merely bare information on the number ofHubb's violations. See
Secretary ofLabor on behalfofHannah v. Consolidation Coal Co., 20 FMSHRC 1293, 1305
n.14 (Dec. 1998). .
613

m.
Conclusion
For the foregoing reasons, we vacate the penalty assessments for both violations and
remand for reassessment for both violations.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

.....
Theodore F. Verheggen, Com

Robert H. Beatty, Jr., Commissioner

614

Distribution
Gene Smallwood, Jr., Esq.
Polly & Smallwood
P.O. Box 786
Whitesburg, KY 41858
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

615

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

May 25, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 98-141-M

v.

CANTERA GREEN

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
DECISION
BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act''), Administrative Law Judge Gary
Melick assessed civil penalties in amounts lower than those proposed by the Secretary of Labor
for a citation and orders issued to Cantera Green ("Cantera") pursuant to section 104(d)(l) of the
Mine Act, 30 U.S.C. § 814(d)(l). 21FMSHRC310, 315-22 (Mar. 1999) (ALJ). The
Commission granted the Secretary's petition for discretionary review challenging the judge's
penalty assessments for the violations alleged in ten orders. For the following reasons, we vacate
the penalty.determinations and remand for reassessment.
Our decision in this matter is one of three decisions we are issuing today regarding the
Commission's penalty assessment authority under section l lO(i) of the Mine Act, 30 U.S.C.
§ 820(i). 1

I.
Factual and Procedural Background
On February 17, 1998, Inspector Alejandro Pefia of the Department of Labor's Mine
Safety and Health Administration ("MSHA") conducted an inspection at the Cantera Green

1

The other decisions concerning Commission penalty assessments we are issuing today
are Hubb Corp., Docket No. KENT 97-302, and Douglas R. Rushford Trucking, Docket No.
YORK 99-39-M.
616

Mine, a surface aggregate mine in Quebradilla County, Puerto Rico. 21 FMSHRC at 311; Tr. 13;
S. Proposal for Assessment of Civ. Penalty (Aug. 10, 1998), Ex. A. Inspector Pena issued a
section 104(d)(l) citation and sixteen section 104(d)(l) orders for violations of numerous
mandatory health and safety standards at the Cantera facility. 21 FMSHRC at 31 O; S. Exs. 1-20.
He determined that each violation was the result of Cantera's unwarrantable failure to comply
with the cited health or safety standard2 and that eleven of the violations were significant and
substantial ("S&S").3 21 FMSHRC at 310-22; S. Exs. 1-20.
On December 8, 1998, a hearing was held in Hato Rey, Puerto Rico before Judge Melick.
During the hearing, Cantera contested both the violations and proposed penalty assessments with
respect to five orders and one citation and contested only the penalties with respect to the
remaining eleven orders. 21 FMSHRC at 310-315; Tr. 5.
In assessing civil penalties for the violations found, the judge summarized his findings
regarding four of the statutory penalty criteria4 in a single footnote:
In assessing civil penalties in this case I have also considered the small
size of the operator (12 employees), that the violative conditions were
abated in good faith, that the operator had a history of 18 violations within
the previous two years and that there was an absence of evidence regarding
the effect of the penalties on the operator's ability to stay in business.

2

At the hearing, the Secretary deleted the unwarrantable failure designation of one
violation not at issue in this proceeding. 21 FMSHRC at 310.
3

The S&S and unwarrantable failure terminology is taken from section 104(d)(l) of the
Act, which distinguishes as more serious any violation that "could significantly and substantially
contribute to the cause and effect of a ... mine safety or health hazard," and establishes more
severe sanctions for any violation that is caused by "an unwarrantable failure of [an] operator to
comply with ... mandatory health or safety standards." 30 U.S.C. § 814(d)(l).
4

Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties
under the Act:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 u.s.c. § 820~i).
617

21 FMSHRC at 312 n.2. The judge considered negligence and gravity criteria separately for each
of the ten violations at issue in this proceeding, detennining that Cantera's negligence and
gravity were high for every violation based on the facts and testimony presented at the hearing.
Id. at 316-22. For nine of the ten violations at issue, for which the Secretary had proposed
penalties ranging :from $500 to $1,500, the judge assessed penalties of $400. Id. at 316-18, 32022. He also provided the following additional discussion in assessing penalties for the ten
violations at issue in this proceeding:
Order No. 4545862 involved the failure to guard a pinch point between a conveyor belt
and tail pulley in violation of30 C.F.R. § 56.14107(a). 21 FMSHRC at 315-16. While
concluding that the violation was of high gravity and the result of high operator negligence, "[i]n
particular consideration of the size of the operator," the judge assessed a penalty of $400 for this
violation, rather than the $800 penalty proposed by the Secretary. Id. at 316.; S. Br. at 2.
Order No. 4545863 involved the operation of a :front-end loader without a functioning
backup alarm in violation of 30 C.F.R. § 56.14132(a). 21 FMSHRC at 316-17. After finding
high gravity and high negligence, the judge concluded that a penalty of $400 was appropriate
"[b]ecause of the size of the operator and lack of a recent history of similar violations." Id. at
316. The Secretary had proposed a penalty of $1,500 for this violation. S. Br. at 2.
Order No. 4545864 charged that Cantera operated the same front-end loader without a
functioning parking brake in violation of30 C.F.R. § 56.1410l(a). 21 FMSHRC at 317. Noting
Cantera's claim that no similar violation had occurred in ten years, the judge explained:
"Considering the size of the operator and the absence of a recent history of prior violations of this
standard, I find that a civil penalty of $400.00, is appropriate." Id. The Secretary had proposed a
penaltyof$~,ooo. S. Br. at 2.
Order No. 4545865 involved Cantera's failure to perfonn examinations of working places
on each shift as required by 30 C.F.R. § 56.18002. 21 FMSHRC at 317-18. The judge stated
that, "[p]articularly in light of the absence of a recent history of similar violations and the size of
the operator," a penalty of$1,500 was appropriate. Id. at 318. The Secretary proposed a penalty
of $2,500 for this violation. S. _Br. at 2.
Order No. 7795305 charged that the plant motor feeder at Cantera's Green Mine did not
have a safe means of access as required by 30 C.F.R. § 56.11001. 21 FMSHRC at 318. The
judge found high gravity and high negligence, noting there was undisputed evidence that
Cantera's owner knew of this condition for two or three weeks. Id. Without further explanation,
he concluded that a civil penalty of $400 was warranted, rather than the $1,000 penalty proposed
by the Secretary. Id.; S. Br. at 2.
Order No. 7795308 charged that the fan and motor belts of the primary crusher were not
guarded in accordance with 30 C.F.R. § 56.14107(a). 21 FMSHRC at 319-20. After finding that

618

the violation was of high gravity and the result of high negligence, the judge stated:
"Considering the criteria under Section l IO(i) of the Act, I find that a civil penalty of$400.00, is
appropriate." Id. at 320. The Secretary had proposed a penalty of$800 for this violation. S. Br.
at 2.
Order No. 7795312 involved the lack of a cover plate for an electrical junction box in
violation of 30 C.F.R. §.56.12032. 21 FMSHRC at 320. The judge stated that"[c]onsidering the
criteria under Section 11 O(i) of the Act, an appropriate civil penalty of $400.00 will be assessed."
Id. The Secretary had proposed a penalty of$600. S. Br. at 2.
Order No. 7795313 involved a violation of30 C.F.R. § 56.14107(a), based upon the lack
of a guard for a conveyor belt tail pulley. 21 FMSHRC at 320-21. After finding high gravity and
high negligence, the judge, without any further explanation, assessed a penalty of $400; the
Secretary had proposed a penalty of $500. Id. at 321; S. Br. at 2.
Order No. 7795314 involved another violation of 30 C.F.R. § 56.14107(a) for failing to
provide a guard for another conveyor belt tail pulley. 21 FMSHRC at 321. After finding high
gravity and high negligence, the judge, without any further explanation, again assessed a penalty
of$400 for this violation, rather than the $500 proposed by the Secretary. Id.; S. Br. at 2.
Order No. 7795315 charged that there was no cover plate on an electrical junction box on
a conveyor motor in violation of 30 C.F.R. § 56.12032. 21 FMSHRC at 321-22. After finding
that the violation posed a serious hazard and was the result of high negligence, the judge, without
any additional explanation, assessed a penalty of $400; the Secretary had proposed a penalty of
$600. Id.; S. Br. at 2.
The S~cretary filed a petition for discretionary review challenging only the judge's
penalty assessments for these ten violations. S. PDR at 1.
II.

Disposition
The Secretary argues that the judge abused his discretion when he assessed the ten civil
penalties at issue. First, the Secretary argues that when the judge assessed the civil penalties for
these violations, he assessed penalties widely divergent from those proposed by the Secretary
without providing an adequate explanation. S. Br. at 8, 10-12. Second, the Secretary asserts that
the judge "appeared to pick and choose" which of the criteria besides gravity and negligence
were relevant for the purpose ofjustifying his lower penalty assessment. Id. at 8. The Secretary
asserts that while the judge made general findings on four of the criteria in a footnote, there is no
indication that the judge applied those findings in determining the appropriate penalty for each of
the violations. Id. at 13. The Secretary also submits that if, in fact, the judge did apply the
findings in his footnote to each of the violations, he committed error by applying some of the
619

statutory criteria twice. Id. at 13 n.4. Third, the Secretary contends that the judge erred when he
relied on the operator's lack of recent history of similar violations as opposed to the operator's
entire violation history over the previous two years. Id. at 15. Finally, the Secretary argues that
the judge assessed penalties which were inconsistent with the findings he did make since he
assessed penalties in amounts lower than those proposed by the Secretary despite findings of high
gravity and negligence. Id. at 15-17. The Secretary requests that the Commission vacate the
judge's civil penalty a~sessments and remand the case for reassessment and further findings on
the penalty criteria. Id. at 17.
Cantera argues that the judge's decision was correct, adequately explained, consistent
with the judge's own factual .findings, and also complied with the six statutory penalty criteria.
C.G. Br. at 1. Cantera argues that since "neither the judge nor the Commission shall be bound by
a penalty proposed by the Secretary," the judge's penalties should be considered proper and
adequate. Id. Cantera states that it rests on the record to support its argument and requests that
the Commission affirm the civil penalty assessments. Id. at 1-2.
A.

General Legal Principles

As a general rule, Commission judges are accorded broad discretion in assessing civil
penalties under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). We
have held, however, that such discretion is not unbounded and must reflect proper consideration
of the penalty criteria set forth in section 11 O(i) and the deterrent purpose of the Act. Id. (citing
Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir.
1984)). In Sellersburg, we stated unequivocally that "[w]hen an operator contests the Secretary's
proposed assessment of penalty, thereby obtaining the opportunity for a hearing before the
Commission, findings of fact on the statutory penalty criteria must be made." Id. at 292
(emphasis added). In addition, our Procedural Rules also make this duty clear. Rule 30(a)
provides: ·

In assessing a penalty the Judge shall determine the amount
of penalty in accordance with the six statutory criteria contained in
section 11 O(i) ... and incorporate such determination in a written
decision. The d~cision shall contain findings offact and
conclusions oflaw on each ofthe statutory criteria and an order
requiring that the penalty be paid.
29 C.F.R. § 2700.30(a) (emphasis added).
Despite the Commission's clear mandate in Sellersburg and in its Procedural Rules, we
have often found it necessary to remand cases for penalty assessment where judges have failed to
enter the requisite findings. See, e.g., Secretary ofLabor on behalfof Hyles v. All American
Asphalt, 21FMSHRC119, 142 (Feb. 1999); Rock ofAges Corp., 20 FMSHRC 106, 126 (Feb.
1998), ajf'd in part, 170 F.3d 148 (2d Cir. 1999); Secretary ofLabor on behalfof Glover v.

620

Consolidation Coal Co., 19 FMSHRC 1529, 1539 (Sept. 1997); Fort Scott Fertilizer-Cul/or,
Inc., 19 FMSHRC 1511, 1518 (Sept. 1997); Thunder Basin Coal Co., 19 FMSHRC 1495, 150206 (Sept. 1997). Because this case and its companion cases, Hubb Corp. and Douglas R.
Rushford Trucking, present further examples of this trend, we believe it is necessary to reiterate
the significance of our holding in Sellersburg.
As we emphasize in our decisions in Hubb Corporation, 22 FMSHRC __,Docket No.
KENT 97-302, slip op. at 7 (May 2000), and Douglas R. Rushford Trucking, 22 FMSHRC __,
Docket No. YORK 99-39-M, slip op. at 4 (May 2000), the requirement that our judges make
findings of fact on each of the section 11 O(i) penalty criteria serves two important and distinct
purposes. First, these findings provide the respondent and the regulated community with the
appropriate notice as to the basis upon which the penalty is being assessed. Sellersburg, 5
FMSHRC at 292. Second, findings of fact on the section 11 O(i) penalty criteria supply the
Commission and any reviewing court with the information needed to accurately determine if the
penalties assessed by the judge are appropriate, excessive, or perhaps insufficient. Id. at 292-93.
This is consistent with the broader requirement that '"[a] judge must analyze and weigh the
relevant testimony of record, make appropriate findings, and explain the reasons for his
decision.'" Hubb, 22 FMSHRC at_, slip op. at 7, (quoting Mid-Continent Resources, Inc., 16
FMSHRC 1218, 1Z22 (June 1994)). See also Anaconda Co., 3 FMSHRC 299, 299-300 (Feb.
1981) ("Our function is essentially one ofreview. Without findings of fact and some
justification for the conclusions reached by the judge, we cannot perform that function
effectively.").
As a unanimous Commission stated in Sellersburg:

When ... it is determined that penalties are appropriate which
substantially diverge from those origina}jy proposed, it behooves
the Commission and its judges to provide a sufficient explanation
of the bases underlying the penalties assessed by the Commission.
If a sufficient explanation for the divergence is not provided, the
credibility of the administrative scheme providing for the increase
or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.
5 FMSHRC at 293. See also Unique Electric, 20 FMSHRC 1119, 1123 & n.4 (Oct. 1998)
(concluding that judge failed to explain the wide divergence between the penalty of $400
assessed and the Secretary's proposed penalties of$8,500); Thunder Basin, 19 FMSHRC at 1504
(concluding that judge failed to provide adequate explanation for 95% reduction in penalty
assessed); Dolese Bros. Co., 16 FMSHRC 689, 695 (Apr. 1994) (finding that the judge was
required to explain a 60% increase in his civil penalty assessment). While the findings and
explanations relating to a penalty assessment do not have to be exhaustive, they must at least
provide the Commission with a basis for determining whether the judge complied with the
requirement to consider and make findings concerning the section 11 O(i) penalty criteria.
621

B.

The Judge's Penalty Assessments

Although the judge in this case did make some findings concerning the section 11 O(i)
penalty criteria, he failed to provide an adequate explanation of how these findings contributed to
his penalty assessments. The judge made brief findings and conclusions on four statutory criteria
(history of violations, operator size, effect on the ability to continue in business, and good faith
compliance) in a footnote and analyzed the remaining two criteria (gravity and negligence) for
each violation individually. 21 FMSHRC at 312 n.2, 316-22. However, the judge failed to
explain how these findings related to the penalties assessed and, for certain violations, appears to
have placed particular reliance on some penalty criteria without indicating ifhe considered
others. This lack of a clear explanation for the assessed penalties takes on additional significance
because the penalties assessed for ten violations, totaling $5,100, deviated substantially from the
$9,800 in penalties proposed by the Secretary.
The judge in this case assessed significantly lower penalties for the ten violations at issue
despite concluding that the record supported a finding of high negligence and high gravity for
these violations. Id. at 316-22. Because the Commission and its judges are required to assess
penalties de novo (Sellersburg, 5 FMSHRC at 291), a finding that Cantera's negligence and
gravity were as great or even greater than the Secretary originally alleged does not preclude the
judge from assessing lower penalties based on consideration of the other statutory criteria and the
evidence adduced during the adjudicative process. As the Commission has recognized, "there is
no requirement that equal weight must be assigned to each of the penalty assessment criteria."
Thunder Basin, 19 FMSHRC at 1503. As discussed above, however, the Commission has also
consistently held that adequate "(f]indings are critical if the judge is assessing a penalty that
differs significantly from that proposed by the Secretary." Dolese, 16 FMSHRC at 695; see also
Sellersburg, 5 FMSHRC at 293 (concluding that the judge failed to explain the wide divergence
between the penalties assessed and the penalties proposed by the Secretary).
Here, although the judge found high gravity and negligence, the amount he assessed for
the ten violations only ranged from approximately 20% to 70% of the penalties proposed by the
Secretary. For six of these violations, the judge offered no explanation for this divergence
outside of the footnote setting forth his general findings with respect to the four criteria.5 For the

5

Aside from separately considering gravity and negligence, the judge stated generally
with respect to two of the violations (Order Nos. 7795308, 7795312), that he was "considering
the criteria under section 11 O(i)," and with regard to two other violations (Order Nos. 779314,
779315), that they were "affirmed as written." 21 FMSHRC at 319-20, 321-22. For two other
violations (Order Nos. 7795305, 7795313), the judge, after finding high gravity and negligence,
provided no further explanation for the penalties assessed. Id. at 318, 321.
622

other four orders at issue herein, the judge again referred to certain criteria which he had already
discussed in the footnote. 6 Even as to these violations, however, the judge did not explain why
he considered these selected criteria to be particularly relevant to these violations, but apparently
not the others, nor why they warranted significant reductions in the penalty proposed by the
Secretary. Thus, while the judge technically complied with Sellersburg by discussing four of the
criteria in an opening footnote, and the remaining two criteria (gravity and negligence) in his
discussion of each separate violation, he failed to provide an adequate explanation of the basis
for his penalty assessments to permit meaningful review by this Commission.
We discuss below certain additional ambiguities and deficiences in the judge's decision
with respect to particular penalty criteria7 and the penalty amounts assessed, that provide further
grounds for vacating the judge's penalty determinations and remanding for reassessment.
1.

Histozy of Violations

As noted above, for three of the violations at issue (Order Nos. 4545863, 4545864, and
4545865), the judge relied on the operator's lack of a recent history of similar violations when he
assessed penalties that were significantly less than those proposed by the Secretary. 21
FMSHRC at 317-18. The only other discussion of Cantera's history of violations was in the
footnote where the judge found that "the operator had a history of 18 violations within the
previous two years." Id. at 312 n.2.
The Commission has recognized that "the language of section 11 O(i) does not limit the
scope of history of previous violations to similar cases." Secretary ofLabor on behalf of
Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 557 (Apr. 1996). The Commission has
explained that "section 1 lO(i) requires the judge to consider the operator's general history of
previous violations as a separate component when assessing a civil penalty. Past violations of all
safety and health standards are considered for this component." Peabody Coal Co., 14 FMSHRC
1258, 1264 (Aug. 1992) (emphasis added); see also Glover, 19 FMSHRC at 1539 (remanding to
the judge with instructions to consider the operator's general history of violations, not only its
prior section 105(c) violations).
The judge made a finding concerning Cantera's entire history of previous violations,

6

For Order Nos. 4545862, 4545863, 4545864, and 4545865, the judge relied on
Cantera's small size in assessing a lower penalty than that proposed by the Secretary. 21
FMSHRC at 316-18. For three of those four orders, the judge also separately relied on the
operator's lack of recent history of similar violations as justification for the reduced assessments.
Id. at 317-18.
7

We conclude that the judge's analysis and findings concerning the gravity criterion with
respect to the ten violations was adequate, and therefore do not further discuss his consideration
of that factor.
623

noting that it had a history of 18 violations over the past two .years. That finding, and the impact
it played in the penalty assessments, is difficult to review, however, because the judge failed to
evaluate whether that history was high, moderate, or low. See Secretary of Labor on behalfof
Hannah v. Consolidation Coal Co., 20 FMSHRC 1293, 1305 n.14 (Dec. 1998) (noting that, in
the absence of a qualitative allegation, "bare" information regarding the number of previous
violations is of limited use).
It was not necessarily erroneous for the judge to consider the operator's lack of recent
similar violations with respect to three violations. The Commission has found that a history of
similar violations may be relevant in considering an operator's negligence for purposes of setting
a penalty. A history of similar violations may demonstrate that the operator had prior knowledge
of the specific safety or health standard cited. The Commission has explained that problems in
the cited area noted several times in examination books may demonstrate prior notice that a
problem existed in the cited area and that greater efforts were necessary to ensure compliance.
Peabody, 14 FMSHRC at 1262. In Peabody, the Commission rejected the operator's argument
that the judge improperly considered the history of violations twice - once when considering the
general history criterion and a second time in consideration of the negligence criterion explaining that such consideration was not improper or duplicative because the purpose of the
two criteria are different. Id. at 1264.

We conclude, however, that the judge erred by failing to set forth his rationale for
considering the operator's lack of recent similar violations in certain instances, or to explain how
that analysis impacted on his penalty assessments. 8 Without such an explanation, it is not clear
whether, for the three orders in which it was discussed, the judge considered similar violations to
the exclusion of all violations, or whether the judge made the consideration in conjunction with
his negligence finding. In addition, the judge offered no explanation for his failure to consider
the history of recent similar violations for the other seven disputed penalties. Such problems in
the judge's.analysis of Cantera's history of prior violations constitute additional grounds for
vacating his penalty assessments, and require further explanation and findings by the judge on
remand.

2.

Operator Size

Although the operator's size was a constant factor for all violations, and was discussed
briefly in a footnote, the judge appears to have relied upon the operator's small size in lowering
the penalty assessed for only four of the ten disputed penalties. The judge did not provide any
8

It also appears that the judge erred in determining that there was no history of a prior
violation of the standard cited in Order No. 4545865. 21 FMSHRC at 318. At the hearing, the
Secretary submitted a copy of a citation issued to Cantera on April 9, 1997 for a violation of the
same standard. Jt. Ex. 2, at 7.

624

explanation why the operator's size should mitigate the penalties only for Order Nos. 4545862,
4545863, 4545864, and 4545865, or whether he also considered that factor in lowering the
penalty assessed for the other six disputed penalties. Without an adequate explanation by the
judge regarding his separate consideration of the operator's size, the Commission does not have
the necessary foundation to determine whether the judge abused his discretion in his
consideration ofthis criterion. See Sellersburg, 5 FMSHRC at 292-93. This ambiguity provides
yet another reason for V3;Cating the judge's penalty assessments and remanding them for further
consideration and findings.
3.

Negligence

The judge made findings of high negligence in his separate discussion of each of the ten
violations at issue herein. 21 FMSHRC at 316-22. In addition, as discussed above, for three of
the violations at issue, the judge noted the operator's lack of a recent history of similar violations
in assessing penalties - a factor that the Commission has held may be relevant in evaluating an
operator's negligence. However, the judge did not relate these findings regarding the lack of
history of previous similar violations to his findings on negligence, or explain how they
influenced the amount of the penalties assessed. This is another ambiguity in the judge's penalty
assessments that warrants further consideration on remand.
4.

Operator's Ability to Continue in Business

In a footnote, the judge concluded that there was "an absence of evidence regarding the
effect of the penalties on the operator's ability to stay in business." Id. at 312 n.2. Under
Commission law, such a finding provides a basis for a presumption that the penalties proposed
would not have a detrimental affect on the operator. See Sellersburg, 5 FMSHRC at 294. In his
decision, however, the judge never confirmed that he applied this presumption or explained how
this factor influenced the penalties that he assessed.

5.

Good Faith in Achieving Compliance

The judge also found in a footnote, without any further explanation, that all of the
violative conditions "were abate~ in good faith." 21 FMSHRC at 312 n.2. While it thus appears
that the judge complied with the requirement to make a finding concerning this criterion, he once
again failed to explain the basis for this finding and how it influenced the amounts of the
penalties he assessed.

6.

Penalty Amounts

For nine of the violations at issue, the judge assessed penalties of $400 although the
Secretary had proposed penalties ranging from $500 to $1,500. 21 FMSHRC at 316-18, 320-22;
S. Br. at 2. For the remaining violation (Order No. 4545865), involving the operator's failure to

625

examine the working places on each shift, the judge reduced the $2,500 penalty proposed by the
Secretary to $1,500. 21 FMSHRC at 318; S. Br. at 2. Thus, the extent of the reduction in the
penalties assessed by the judge ranged from over 70% to 20%. With the exception of a few brief
references to the operator's small size and lack of recent history of similar violations, however,
the judge never fully explained why greater reductions were warranted with respect to certain
violations than to others. Nor did the judge offer any logic for selecting a penalty amount of
$400 for nine violations, and $1,500 for the remaining disputed violation.
On the basis of the foregoing, we conclude that the judge failed to adequately explain the
basis for the penalties he assessed for the violations at issue herein. We vacate the penalty
assessments and remand with instructions to the judge to provide a reasoned explanation of the
basis for the penalties assessed. See Jim Walter Resources, Inc., 19 FMSHRC 498, 501 (Mar.
1997) (remanding to the judge where he failed to indicate how or whether his findings and
conclusions regarding abatement related to his penalty assessments); Dolese, 16 FMSHRC at
695-96 (remanding to the judge where he failed to enter findings on four of the penalty criteria or
explain the significant divergence of the penalty assessed from the Secretary's proposed penalty
assessment). On remand, the judge must provide a clearer explanation of his basis for reducing
the amount of the penalties proposed by the Secretary and his determination of particular penalty
amounts for each of the violations at issue here.

626

III.
Conclusion
For the foregoing reasons, we vacate the penalty assessments for Order Nos. 4545862,
4545863,4545864,4545865, 7795305, 7795308, 779312, 7795313, 7795314,and 7795315,and
remand for reassessmeot of an appropriate penalty for each violation consistent with this
decision.

~:
c

James C. Riley, Commissioner

Theodore F. Verheggen, C

Robert H. Beatty, Commissioner
627

Distribution
Tina Perruzzi, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203 .
Edgardo R. Jimenez Calderin, Esq.
Jimenez, Calderin Law Offices
P.O. Box 8765 Fdez. Juncos Station
San Juan, PR 00910-0765
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

628

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

May30, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 99-233
A.C. No. 15-16318-03656 M

v.

EARL BEGLEY, employed by
MANALAPAN MINING CO., INC.
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

ORPER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On May 25, 2000, the Commission received
via facsimile transmission a petition for discretionary review from Earl Begley, employed by
Manalapan Mining Co., Inc., challenging a decision issued by Administrative Law Judge Avram
Weisberger on April 19, 2000. In his decision, Judge Weisberger found that Begley had violated
section 317(c) of_ the Mine Act, 30 U.S.C. § 877(c), by carrying smoking materials underground,
and ordered Begley to pay a civil penalty of$250. 22 FMSHRC 537, 540-43 (Apr. 2000) (ALJ).
The judge's jurisdiction in this matter terminated when his decision was issued on April
19, 2000. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules,
relief from a judge's decision may be sought by filing a petition for discretionary review within
30 days of its issuance. 30 U.S."C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does
not direct review within 40 days of a decision's issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(l). Begley's petition was received by the Commission on May
25, 2000, six days past the 30-day deadline. Under the Commission's Procedural Rules, the
filing of a petition for discretionary review is effective upon receipt. 29 C.F.R. § 2700.70(a).
The Commission has entertained late-filed petitions for discretionary review where good
cause has been shown. See, e.g., DeAtley Co., 18 FMSHRC 491 , 492 (Apr. 1996) (excusing late
filing of petition for discretionary review where operator's predecessor failed to inform operator
of unconsummated settlement agreement); McCoy v. Crescent Coal Co., 2 FMSHRC 1202, 1204
629

(June 1980) (vacating judge's order of dismissal and finding good cause where petitioner was pro
se during part of the proceedings, subsequently-retained counsel obtained judge's decision only
10 days prior to deadline for petition, and petition was mailed on 30th day). In circumstances in
which a hearing on the merits has taken place, the Commission has rejected a late-filed petition
for discretionary review where the petitioner has offered no explanation for the late filing. See
Dykhoffv. U.S. Borax Inc., 21FMSHRC976, 977-78 (Sept. 1999); Duval Corp. v. Donovan, 650
F.2d 1051, 1054 (9th Cir. 1981); Sunbeam Coal Corp., 2 FMSHRC 775 (Mar. 1980). But see
Dykhoffv. U.S. Borax, Inc., 21FMSHRC1279, 1280-81 (Dec. 1999) (reopening proceedings
where pro se miner filed motion for reconsideration explaining he mistakenly believed he had 40
days to file his petition for discretionary review).
Here, Begley, who is represented by counsel, has availed himself of the opportunity to
have his case heard by a judge. He also offers no explanation for his failure to timely submit a
petition for discretionary review. Thus, Begley has failed to show "good cause," excusing his
late filing. Accordingly, we reject this petition as untimely. See Duval Corp., 650 F.2d at 1054
(upholding finding of no good cause where counsel obtained judge's decision 24 days prior to
deadline for filing petition, and petition was mailed within 30 days of judge's decision but
received by the Commission one day after filing deadline); Sunbeam, 2 FMSHRC at 775 n. l
(dismissing petition as untimely where good cause for late filing was neither claimed nor shown
in the petition).

630

For the foregoing reasons, Begley's petition for discretionary review is denied as untimely

fi}ed. 1

I

James C. Riley, Commissioner

.. -? ' '

~

,., ... ~';;>'~

...,,

Robert H. Beatty, Jr., Commissioner

1

Commissioner Marks would grant Begley's pet~tion.

631

... #

i

.

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

632

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

May31, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 98-156-M

V.

MARTIN MARIETTA AGGREGATES

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
DECISION
BY: Riley, Verheggen, and Beatty, Commissioners
In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), former Chief Administrative Law
Judge Paul Merlin1 determined that Martin Marietta Aggregates ("MMA") committed a
significant and substantial ("S&S") violation of30 C.F.R. § 56.14207.2 21FMSHRC76, 85
(Jan. 1999) (AIJ). He found that, although the violation1was caused by a miner's high degree of
negligence, th~ miner's negligence was not imputable. to MMA for penalty assessment and
unwarrantable failure purposes, because the miner was not an agent ofMMA. Id. at 85-88. The
Commission granted the Secretary of Labor's petition for discretionary review challenging the
judge's finding that the miner's negligence was not imputable to MMA. The United Steel
Workers of America ("USWA") and the National Mining Association ("NMA") sought and were
granted amicus status in this proceeding. For the following reasons, we affirm the judge's
decision.

1

Judge Merlin retired on December 31, 1999.

2

Section 56.14207 provides in pertinent part that "[m ]obile equipment shall not be left
unattended unless the controls are placed in the park position and the parking brake, if provided,
is set."
633

I.

Factual and Procedural Background
MMA operates the Camak Quarry, a stone quarry in Camak, Georgia. At the loadout
point in the quarry, railcars were loaded with crushed stone and gravity-dropped to a storage
area before being weighed on scales. After the cars were dropped, a loader was routinely used to
push them forward so they would attach to a locomotive parked a few feet in front of the scales.
The cars were weighed on the scales and then the locomotive moved them to a dispatch point
from where they were transported from the mine. On October 20, 1997, the decedent, Jut
Anderson, was the leadman of the loadout crew. At the start of the shift, plant foreman Donny
Reese gave Anderson his work assignment for the day, which included cleaning the scales with a
shovel. Later in the morning, Anderson told foreman Reese and the loadout crew that he was
going to clean the scales. He did not, however, tell Robert Hobbs, the loader operator. On the
shift in question, Billy Moss, a member of the loadout crew, parked the locomotive 18 inches to
3 feet before the scales and set the air brake. Subsequently, ten railcars were gravity-dropped and
attached to the locomotive. Anderson asked Jason Jones, a backhoe operator, to assist him in
cleaning the scales by shoveling debris off the scales and later by digging a ditch to drain water
under the scales. Anderson used compressed air from the locomotive to clean the scales. Hoping
to increase the air pressure from the locomotive, he asked Jones to release the air brake on the
locomotive and Jones did so. 21 FMSHRC at 78-80; Tr. 246, 293.
Later, Anderson was in front of the locomotive, cleaning the scales, and Jones was in his
backhoe. At that time, four cars previously gravity-dropped from the loadout area had come to a
stop and were blocking an intersection. Unaware that Anderson was on the track cleaning the
scales, Hobbs used a loader to push the four cars out of the intersection and into the ten cars that
were attached to the locomotive. The impact of the four additional cars caused the first ten cars
and the attached locomotive to move forward. The locomotive hit and killed Anderson. 21
FMSHRC at 80. ·
Following an investigation of the accident, the Department of Labor's Mine Safety and
Health Administration ("MSHA") issued an order under section 104(d)(l) of the Mine Act, 30
U.S.C. § 814(d)(l), alleging a violation of section 56.14207. The order alleged that the violation
was S&S, resulted from MMA' s unwarrantable failure, and involved a high level of negligence
by the operator. MSHA proposed a civil penalty of $45,000. Pet. for Assessment of Civil
Penalty at 2. At trial, MMA disputed the amount of the proposed penalty and the Secretary's
imputation of Anderson's negligence to it for penalty assessment and unwarrantable failure
purposes. MMA Post-hearing Br. at 2-3, 27-31.
The judge found an S&S violation of section 56.14207. 21 FMSHRC at 84-85. He held
that Anderson displayed extreme negligence in instructing Jones to release the locomotive's
brake and in failing to notify the loader operator that he was cleaning the scales. Id. at 85.

634

However, in considering whether to impute Anderson's negligence to the operator for purposes
of deciding whether the violation was caused by an unwarrantable failure and for assessment of
the appropriate penalty, the judge determined that, altho~gh Anderson assigned specific tasks to
other miners, he was not MMA's agent. Id. at 85-88. Accordingly, the judge determined that
Anderson's negligence was not imputable to MMA, vacated the Secretary's unwarrantable
failure allegation, and declined to find that the violation resulted from MMA's high negligence.
Id. at 88-89. The judge assessed a penalty of $2,000. Id. at 89.

II.
Disposition
The Secretary contends the judge erred in finding that Anderson's negligence was not
imputable to .MMA for purposes of an unwarrantable failure determination and penalty
assessment. S. Br. at 7. She argues that the judge erred in failing to accept her interpretation
that, under the plain language of section 3(e) of the Mine Act,3 30 U.S.C. § 802(e), the term
"agent" includes a miner such as Anderson who has the authority to assign tasks to other miners
and the responsibility of keeping an area of the mine safe. S. Br. at 9-16; S. Reply Br. at 13. She
also argues that, even if the meaning of section 3(e) is ambiguous, the judge erred by not
deferring to her interpretation of the term "agent." S. Br. at 13 n.7; S. Reply Br. at 13-15. The
Secretary contends that, under both existing case law and common law principles of agency, the
judge erred in concluding that Anderson was not an agent. S. Br. at 16-22.
MMA responds that substantial evidence supports the judge's finding that Anderson was
not an agent and that his negligence should not be imputed to MMA. MMA Br. at 7-13. It
argues that, even if Anderson was an agent, his negligence should not be imputed to MMA
because his negligence did not endanger any other persons. Id. at 14-16. The operator contends
that the Secret(\ry's interpretation of section 11O(i), 30 U.S.C. § 820(i), is not entitled to
deference because the Commission has authority under the Mine Act to impose penalties under
that provision. Id. at 17-22. It also argues that imputing Anderson's negligence to it for penalty
assessment and unwarrantable failure purposes is contrary to common law principles of agency.
Id. at 23-24.
Amici USWA and NSA both contend that the judge correctly found that Anderson was
not an agent of the operator. USWA Br. at 2, 5-6; NSA Br. at 8-10. USWA argu~s that the
judge erred in not finding high negligence and unwarrantable failure by MMA be~ause the
operator fai led to appropriately train and supervise the rank-and-file miners in the loadout area.
USWA Br. at 6-7. NSA contends that the Secretary is not entitled to deference concerning her
interpretation of section 11 O(i) because the Mine Act specifically authorizes the Commission to

3

Section 3(e) provides that an agent is "any person charged with responsibility for the
operation of all or a part of a coal or other mine or the supervision of the miners in a coal or other
mine." 30 U.S.C. § 802(e).
635

assess penalties iinder that provision. NSA Br. at 13-16. It further argues that imputing
Anderson's negligence to MMA would discourage operators from seeking the highest safety
standards. Id. at 11.
Under Commission precedent, the negligence of a rank-and-file miner is not imputable to
the operator for the purposes of penalty assessment or unwarrantable failure. 4 Whayne Supply
Co., 19 FMSHRC 447, 451, 453 (Mar. 1997); Fort Scott Fertilizer-Cullar, Inc., 17 FMSHRC
1112, 1116 (July 1995.); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982)
("SOCCO"). However, it is well established that the negligence of an operator's agent is
imputable to the operator for penalty assessment and unwarrantable failure purposes. Whayne,
19 FMSHRC at 451; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-97 (Feb. 1991)
("R&P"); SOCCO, 4 FMSHRC at 1463-64. The main issue in this case is whether substantial
evidence5 supports the judge's finding that Anderson was not an agent ofMMA, and, as a
consequence, that his negligence was not imputable to the operator for unwarrantable failure and
penalty assessment purposes.6
A.

Deference

We note that the Secretary's argument regarding deference is not properly before the
Commission. 7 Section l 13(d)(2)(A)(iii) of the Mine Act provides that "[e]xcept for good cause
4

The unwarrantable failure terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused by
"an unwarrantable failure of [an] operator to comply with ... mandatory health or safety
standards."
·

5

When reviewing an administrative law judge's factual determinations, the Commission
is bound bythe terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
6

Although an operator is not liable for unwarrantable failure based on the aggravated
conduct of a rank-and-file miner, its "supervision, training and disciplining of its employees must
be examined to determine if the operator has taken reasonable steps to prevent the rank-and-file
miner's violative conduct." Whayne, 19 FMSHRC at 452-53 (quoting SOCCO, 4 FMSHRC at
1464) (emphasis in original). The Secretary has not argued on appeal that MMA's supervision,
training, or discipline of Anderson was inadequate.
7

The Secretary's formulation of her "plain meaning" argument is contradictory. If the
statute is plain, then no "interpretation" of the Secretary is required and, hence, no deference is
due. Chevron US.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43
(1984).
636

-

shown. no assignment of error by any party shall rely on any question of fact or law upon which
the administrative law judge had not been afforded an opportunity·to pass." 30 U.S.C.
§ 823(d)(2)(A)(iii). The Secretary supported her argument before the judge that Anderson was
an agent by quoting section 3(e) and citing to Ambrosia Coal & Constr. Co., 18 FMSHRC 1552,
1560 (Sept. 1996), which itself employs common law principles of agency. S. Post-hearing Br.
at 28-29. However, she made no reference below to either the plain meaning or ambiguity of
section 3(e), did not interpret that provision, and did not request the judge to defer to any
interpretation of that provision. Accordingly, we need not reach the Secretary's contention
regarding deference. See Beech Fork Processing, Inc., 114 FMSHRC 1316, 1320-21 (Aug. 1992)
(declining to consider theory raised for the first time on review). Even if the deference argument
had been presented below, we would reject it. The fundamental premise of the Secretary's
argument is that the inquiry into Anderson's status as an agent is determined solely by reference
to section 3(e). This premise is inconsistent with Commission case law.

In determining whether a miner is an agent of an operator for purposes of imputing
negligence to the operator, the Commission has developed a multi-factor test. In formulating the
factors, the Commission has in some cases considered the statutory definition of agent contained
in section 3(e). REB Enters., Inc., 20 FMSHRC 203, 211 n.11 (Mar. 1998); Ambrosia, 18
FMSHRC at 1560; US. Coal, Inc., 17 FMSHRC 1684, 1686 n.3 (Oct. 1995). It has also been
guided in some cases by common law principles of agency. See R&P, 13 FMSHRC at 195 ("The
Commission has previously employed both the Act's definition and common law principles in
resolving agency problems."); Ambrosia, 18 FMSHRC at 1561 n.12 (citing 3 Am. Jur. 2dAgency
§§ 78-79 (1986) for the proposition that "a principal is liable for the acts of an agent that are
apparently within the agent's authority and which the principal permits the agent to exercise");
see also Pocahontas Fuel Co., 8 IBMA 136, 147 (Sept. 1977), aff'd, 590 F.2d 95 (4th Cir. 1979)
(Coal Act case) (adopting the common law principle that the acts or knowledge of an agent are
attributable to the principal). Thus, the Commission's multi-factor test is not limited to the terms
of section 3(e). Moreover, the core concepts of imputation of an agent's negligence to the
operator for purpose~ of penalty assessment and unwarrantable failure are Commission-fashioned
doctrines that do not spring solely from specific statutory language. Whayne, 19 FMSHRC at
451; R&P, 13 FMSHRC at 194-97; SOCCO, 4 FMSHRC at 1463-64; see Nacco Mining Co., 3
FMSHRC 848, 850 (Apr. 1981).
The Secretary's request for ~eference here is, at bottom, a request that the Commission
defer to the Secretary's application of the Commission's test for agency to the record facts. This
is the essence of the adjudicative function and is therefore the Commission's province, not the
Secretary's. We therefore find that the judge correctly based his analysis of Anderson's status as
an agent on the Commission's multi-factor test as elaborated in Commission precedent.

B.

Substantial Evidence Supports the Judge's Finding that Anderson Was Not an
AgentofMMA

When deciding whether a miner is an agent of an operator, the Commission has focused
on the miner's function and not his job title. REB Enters., 20 FMSHRC at 211; Ambrosia, 18

637

FMSHRC at 1560. It has examined whether the miner's function involved responsibilities
normally delegated to management personnel and whether his responsibilities were crucial to the
mine's operation. REB Enters., 20 FMSHRC at 211; Ambrosia, 18 FMSHRC at 1560; US.
Coal, 17 FMSHRC at 1688. It has also considered whether the miner exercised managerial
responsibilities at the time of his negligent conduct. R&P, 13 FMSHRC at 194.
Commission cases that have found the lack of an agency relationship include US. Coal,
17 FMSHRC at 1688 ·(electrician was not an agent even though he was authorized to tell miners
to stop working on dangerous equipment and to remove such machinery from service); Whayne,
19 FMSHRC at 451-52 (experienced repairman who needed little supervision and helped less
experienced employees was not a supervisor); and REB Enters., 20 FMSHRC at 211-12
(leadman on highwall was not an agent because he did not have authority to hire and fire
employees, did not assign equipment to employees, and was not given any instructions regarding
discipline of employees).

In deciding agency questions, the Commission has also examined precedent on the
distinctions between supervisors and employees under the National Labor Relations Act
("NLRA"), 29 U.S.C. § 141 et seq. (1994). Whayne, 19 FMSHRC at 451. The National Labor
Relations Board ("NLRB") has consistently found that the authority to assign tasks is not by
itself sufficient to find supervisory status. See Micro.Pacific Dev. Inc. v. NLRB, 178 F.3d 1325,
1333 (D.C. Cir. 1999) (holding that leadmen waiters and bartenders were not supervisors under
NLRA even though they made assignment and scheduling decisions); Highland Superstores, Inc.
v. NLRB, 927 F.2d 918, 921-23 (6th Cir. 1991) (holding that leadmen warehouse workers were
not supervisors under NLRA even though they assigned work to other employees every day). In
NLRB v. Lauren Mfg. Co., 712 F.2d 245, 248 (6th Cir. 1983), the court held that ''the mere
performance of routine tasks or the giving of instructions to others is not sufficient to afford an
individual supervisory status."
The Secretary relies on NLRB v. Ajax Tool Works, Inc., 713 F.2d 1307 (7th Cir. 1983), for
the proposition that Anderson was an agent because he had the authority to assign tasks. :S. Br. at
11 & n.4. Ajax is readily distinguishable. The employee in Ajax had the authority to assign work
without management approval, maintain discipline, send employees home if they were drunk or
did not work, and make recommendations to discharge employees. 713 F.2d at 1312.
Anderson's narrow authority to assign specific tasks under close management supervision in this
case does not constitute the level of supervisory responsibility involved in Ajax. We also
disagree with the Secretary (S. Br. at 16) that under the theory of NLRB v. Thermon Heat Tracing
Servs., 143 F.3d 181 (5th Cir. 1998), Anderson was an agent because he was responsible for the
safety of part of the mine. The court in Thermon Heat stated that the employee was an agent
because "he was the safety professional for [the company] and that his duty was to assist in
promoting, providing, and maintaining a safe work environment at the company." 143 F.3d at
186 (internal quotations omitted). The employee at issue in that case was the company's safety
director. Id. at 184. As such, he was responsible for the safety of at least 100 employees, and
had authority to issue safety rules for the company. Id. Anderson's narrow work duties in the

638

loadout area are not comparable to the far-reaching responsibilities of the company's safety
director in Thermon Heat.
The judge found that Anderson assigned specific tasks to miners in the loadout area and
"had the authority to tell them how he wanted the job done and to stop them if he did not like
what they were doing. " 8 21 FMSHRC at 87. However, the judge concluded that, although
Anderson exercised "a certain degree of control over the loadout area and the miners who
worked there," his control was "tightly circumscribed."9 Id. at 88. He found that Anderson was
closely supervised by foreman Reese and it was Reese who decided what daily jobs were to be
completed. Id. at 87-88. The judge found that Anderson could not hire, fire, evaluate, or
discipline other miners and that Anderson could not take any action to abate citations, or change
a miner's job or the equipment on the job without Reese's permiss~on. Id. The judge also found
that Anderson was paid at an hourly rate and did not hold himself out in any capacity to be an
agent ofMMA. Id. Similarly, the Commission in REB, 20 FMSHRC at 211-12, found that a
leadman was not an agent because, like Anderson, he did not have the authority to hire, fire, or
discipline other miners, and could not independently change other miners' jobs or assign
equipment.
We conclude that the facts upon which the judge relied constitute substantial evidence in
support of his conclusion that Anderson was not an agent ofMMA. Under the substantial
evidence test, the Commission may not "substitute a competing view of the facts for the view
[an] AU reasonably reached." Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92
(D.C. Cir. 1983); accord Wei/more Coal Corp. v. FMSHRC, No. VA-95-9-D, 1997 WL 794132,
at *3 (4th Cir. Dec. 30, 1997). Under the deferential substantial evidence standard, our task is a
narrow one. "[E]ven if we would have weighed the evidence differently," our sole responsibility

8

We aisagree with the Secretary's argument that Anderson was responsible for safety in
the loadout area. S: Br. at 2, 12. Although the judge found that Anderson conducted safety
meetings with the loadout crew (21 FMSHRC at 86), he made no findings regarding Anderson's
responsibilities for the safety of the loadout area and we do not think the record compels a
conclusion that he had such responsibilities. The Secretary bases her claim on the following
colloquy at trial between her counsel and backhoe operator Jones: Q. "Anderson was the man
you relied on to make sure the work area was safe?" A. "Right." Tr. 249-50. We agree with
MMA (MMA Br. at 9 n.4) that this exchange reveals little about what Anderson's safety
responsibilities were in the loadout area.
9

The Secretary claims that Anderson was an agent in part because when Moss, an hourly
worker in the loadout area, was asked if Anderson was a supervisor, he answered "Yes." S. Br.
at 2; Tr. 108. However, we do not think that this evidence compels a finding that Anderson was
an agent. As MMA points out (MMA Br. at 9 n.4), Moss's answer is oflimited value because
the record does not explain what Moss understood the term "supervisor" to mean. In addition,
the Commission has focused on a miner's function and not his job title when determining agency
status. REB Enters., 20 FMSHRC at 211; Ambrosia, 18 FMSHRC at 1560.
639

is to "determine whether a . .. reasonable factfinder could have ·reached the conclusions actually
reached by ... the ALJ." Secretary ofLabor v. Keystone Coal Mining Corp., 151 F .3d 1096,
1104 (D.C. Cir. 1998) (internal quotations omitted); see also Eastern Associated Coal Corp., 13
FMSHRC 178, 185 (Feb. 1991) {"The Commission's task is not a de novo reweighing of
somewhat conflicting evidence but a determination of whether there is substantial evidence in the
record to support the judge's conclusions."). 10 We conclude that the judge's finding that
Anderson was not an ag~mt was reasonable given Anderson's very limited responsibilities to
assign work, and his close supervision by management. 11
We disagree with the agency standard proposed by the dissent under which a miner would
be an agent if he or she had the "authority to tell ... other miners what to do." Slip op. at 17.
This overly-broad standard could potentially reclassify the vast majority ofrank-and-file miners
as agents- every time an experienced miner tells a less experienced miner "what to do" on the
job, the experienced miner would be acting as the operator's agent. In our view, however, a
standard that would automatically transform a rank-and-file miner into an agent merely by
providing guidance to co-workers is ill-advised. Indeed, the real world ramifications of such an
approach are alarming. A miner learns the intrinsic nature of the environment in which he or she
works primarily through "on-the-job" training with guidance and support provided by fellow
rank-and-file miners. Yet if such guidance and support were to be considered proof of agency,
many experienced rank-and-file miners would likely be reluctant to instruct less experienced
miners on how to safely perform their jobs. Moreover, as an agent, an experienced rank-and-file
miner could be individually exposed to the "civil penalties, fines, and imprisonment" imposed on
agents under section l IO(c) for violations of the Mine Act. See 30 U.S.C. § 820(c). The very
threat of exposure under section 110(c) would likely result in an erosion of the current
apprenticeship environment, and replace it with an "every man for himself' atmosphere that
would clearly be detrimental to the health and safety of our nation's miners.
Our dissenting colleague's claim that our decision takes "a giant step" toward
establishing an ovetlY restrictive agency standard which may "insulat[e] management from
negligence findings" (slip op. at 16) is overstated and ignores that the question of Anderson's
agency is quite close- and depends on the particular facts and circumstances of this case.
Indeed, any case where agency is at issue will turn on its facts. Any operator that attempts to
insulate itself from negligence fi!ldings by providing its miners with substantial supervisory

10

Rather than applying the substantial evidence test to the judge's findings, the dissent
reweighs the evidence de novo, concludes that Anderson was an agent, and advocates reversing
the judge's agency findings. But even if the record evidence could support a finding that
Anderson was an agent, the Commission would not be permitted to overturn the judge's
conclusion to the contrary, which in this case is supported by the record.
11

Com.missioner Riley notes that USWA takes specific exception to the Secretary's
"misguided perception of the term 'agent' and its application to rank-and-file miners." USWA
Br. at 5-6.
640

responsibilities without calling them supervisors will run the risk of crossing the line at issue in
this case and rendering such miners agents.
We do not mean to suggest that the violation was anything other than extremely serious.
Nor do we hold that the judge's reduction of the penalty from $45,000 to $2,000, based on his
finding that Anderson's negligence could not be imputed to MMA, was required by this record.
Judges have the discretion to accord different weight to the six statutory penalty criteria for
assessing civil penalties based on the facts and circumstances of the case. 12 Thunder Basin Coal
Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Here, the gravity of the violation, one of the six
criteria, was very high. However, the question whether the judge abused his discretion by
reducing the penalty by over 95% has not been presented to the Commission on review, and we
therefore do not reach the issue.

12

The six penalty criteria·set forth in section 11 O(i) include:
[l] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.

30 u.s.c. § 820(i).
641

m.
Conclusion
For the foregoing reasons, we affirm the judge's finding that Anderson's negligence was
not imputable to MMA for unwarrantable failure and penalty assessment purposes because he
was not an agent of MMA.

<

I

~-=-,

I.

Robert H. Beatty, Jr., Commissi _ er

642

Commissioner Marks, concurring:
While I concur in the result of this case, based on the limited issue it presents and our law
on that issue, I write separately to delineate some differences with the majority's approach to this
case.
Like the judge, I believe that this case, when viewed in light of Commission precedent, is
a close one with respect to the question of whether decedent Anderson was an "agent" ofMMA
for purposes of imputing his negligence to MMA for unwarrantability and penalty assessment
purposes. See 21 FMSHRC at 87. I am concerned that our decision will be interpreted by
operators as a license to delegate more and more supervisory responsibilities to rank-and-file
miners in order to avoid the negligence of those miners being imputed to the operators. As the
majority opinion makes clear, we presently look at a number of factors in deciding this issue.
Slip op. at 5-6. Operators will no doubt be tempted to get "as close to the line" as possible, and
may assign as many supervisory responsibilities as they can to rank-and-file miners, without
crossing the now very complex line between rank-and-file miner and agent. The present multifactor analysis we use to determine whether a miner is an "agent" of the operator may increase
that temptation. For that reason, I would be very interested in hearing from parties in future cases
regarding whether the Commission should abandon its policy of not imputing to operators the
negligence of rank-and-file miners for purposes of unwarrantable failure and penalty
determinations. 1
Eliminating this Commission doctrine would greatly simplify some of the unwarrantable
failure issues that come before us. For instance, in the present case the majority, incorrectly in
my opinion, discounts the importance of Anderson's safety responsibilities in the loadout area,
because of the judge's failure to make a finding on the degree of Anderson's responsibilities. See
slip op. at 7 n.8. 2 The judge's failure to make such a finding is understandable, given that the
complexity of the Commission's present multi-factor analysis requires that a number offactintensive findings be made in a case such as this.

I As the majority points out this is a Commission-created doctrine (slip op. at 5), so there
is no potential in our revisiting this issue that we would disturb the distinction between rank-andfile miners and agents for purposes of individual liability, which is governed by section 110(c) of
the Mine Act and therefore cannot be altered by Commission decision. See 30 U.S.C. § 820(c).
2

The majority holds that the record does not compel the conclusion that Anderson was
responsible for safety in the loadout area. Slip op. at 7 n.8. The judge found that Anderson
conducted the safety meetings for the miners in the loadout area (21 FMSHRC at 86), and
backhoe operator Jones testified that he relied upon Anderson to make sure the loadout area was
safe. Tr. 249-50. I believe this is more than enough evidence to establish Anderson's
responsibility for.safety.
643

In addition, like arnicus curiae United Steelworkers ofAmerica (''USWA"), I am struck
by evidence in this case that the operator failed to appropriately train and supervise rank-and-file
miners with respect to use of the locomotive air brake. See USWA Br. at 6-7. Anderson's use of
compressed air from the locomotive air brake to clean the scales was not, as operator MMA
would have the Commission believe, "unforeseeable," "contrary to all reasonable expectation,"
or "wholly aberrant and unpredictable." MMA Resp. to USWA Br. at 9, 10. As Anderson's
immediate supervisor, plant foreman Reese, acknowledged, compressed air had been used on a
prior occasion to clean the scales (Tr. 294-95), and there was additional testimony that air from a
locomotive had been so used (Tr. 120), so the air brake's utility for cleaning the scales was not
unknown in the loadout area. Moreover, there was testimony that Anderson had on a prior
occasion attempted to use the air compressor on the locomotive for something other than its
ususal purpose. Tr. 123.
Despite this history, there is no evidence that the operator's training or supervision was
directed at warning miners of the danger of the particular action that led to Anderson's death using air pressure from a locomotive to clean the scales and failing to inform everybody that he
would be cleaning the scales. There is also no evidence that, despite this history, Reese was
vigilant in his supervision of Anderson to prevent him from engaging in such a risky practice,
even though he knew that Anderson was going to be cleaning the scales on the day of the
accident. Tr. 293. Indeed, the judge implicitly criticized Reese's supervision of the loadout area
on the day of the accident, remarking that it was strange for Reese to neither know of or be
curious about the important question of whether the brakes on the rail cars had been set. 21
FMSHRC at 82. In light of the foregoing, I must take issue with the judge's conclusion that
operator fulfilled its duties with respect to training and supervising Anderson. See id. at 86.
However, because the Secretary did not pursue the issue of the extent of the operator's
negligence in training and supervising Anderson, we cannot consider it in determining
unwarrantable failure or the degree of the operator's negligence.

644

Lastly, I must express my concern regarding the penalty that was assessed by the judge in
:his case. Reducing it from the $45,000 proposed by the Secretary to a mere $2,000 is simply not
;ustified by the fact that Anderson's negligence cannot under Commission case law be imputed
:o MMA. Moreover, even if were, the judge's reduction in this case contravenes a number of
::::ommission instructions regarding penalty assessments. Even though we have held that a
'udge's assessment may not "substantially diverge" from the penalty proposed by the Secretary
Nithout sufficient explanation (Unique Electric, 20 FMSHRC 1119, 1123 n.4 (Oct. 1998);
)el/ersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983)), the judge provided no such
~xplanation . See 21 FMSHRC at 88. In addition, in Thunder Basin Coal Co., 19 FMSHRC
l495, 1504-05 (Sept. 1997), we pointed out the inequity of a judge' s 95% reduction in the
)enalty the Secretary had assessed against a large operator, because of our common-sense
~oncem that small penalties are insufficient to get the attention of a large operator. See Coal
~mployment Project v. Dole, 889 F.2d 1127, 1135 (D.C. Cir. 1989). Yet incredibly, a similar
:eduction occurred in this case against a large conglomerate. The threat of a $2000 penalty is
lardly sufficient to get the attention of the likes ofMMA.

Marc Lincoln Marks, Commissioner

645

Chairman Jordan, dissenting:
I disagree with my colleagues' conclusion. Substantial evidence does not support the
judge's finding that Jut Anderson was not an agent of Martin Marietta Aggregates. It is clear
from this record that Anderson had been delegated authority over the employees in the loadout
area. fu light of this fact, the record compels the conclusion that Anderson must be considered an
agent of the operator e:µid the Secretary could appropriately rely on Anderson's negligence in
determining that an unwarrantable failure violation occurred. Likewise, it is appropriate for the
Commission to consider Anderson's negligence in determining a penalty in this case.
The detailed and unequivocal testimony of both rank-and-file and management
employees demonstrates that Anderson was responsible for work assignments and miner safety in
the loadout area. Tr. I 08, 302-04. Robert Hobbs, the loader operator, stated that he took
instructions from Anderson, who assigned work to him. Tr. 139. Foreman Earl D. Reese
testified "it's up to him (Anderson] to direct what individuals he wants each task to be done
[sic]." Tr. 303. Reese also stated that Anderson could stop a worker and redirect him if he did
not like his performance. Tr. 303-04. Although Anderson did not conduct performance
evaluations, Reese received information from him regarding the performance of members of his
crew.1 Tr. 281. Reese further testified that Anderson's leadmanjob required him to constantly
inspect the area and see that crew members understood how to perform their jobs safely. Tr. 282.
Anderson held the weekly safety meetings with the crew and it was Anderson on whom the
miners on the loadout crew depended to keep the loadout area safe. Tr. 249-50.
It would appear from the record that Anderson also viewed himself as being in charge of
the loadout area. About a month or two prior to the accident, Anderson told Billy Moss, a
member of his crew, to hook a valve up so that he could use the air compressor on the
locomotive for purposes other than a braking system. Tr. 123. According to Moss, there was no
indication that Anderson felt it necessary to consult with superiors before ordering that
adjustment. Tr. 1.2 3. On the day of the accident, Anderson again ordered the air pressure from
the air compressor to be diverted from the locomotive. Tr. 248. Ultimately, it was that order to
redirect the air pressure and release the brake which led to the tragic accident underlying this
case. Tr. 49, 248.
The description of Anderson recounted by the witnesses does not fit the profile of a rankand-file miner. The record evidence shows that Anderson was in control of the activities in the
loadout area - telling workers what to do, correcting their mistakes, and adapting equipment.
Moreover, the workers on the crew perceived him as being in charge. Under the plain language
of the Mine Act (which defmes "agent" as "any person charged with responsibility for the
operation of all or a part of a coal or other mine or the supervision of the miners in a coal or other
mine," 30 U.S.C. § 802(e)), Anderson must be deemed an agent.

1

At least some members of the crew believed that Anderson could fire them. Tr. 278.

646

My colleagues point out that, when deciding whether a miner is an agent of an operator,
the Commission has
focused on the miner's function and not his job title. It has
examined whether the miner's function involved responsibilities
normally delegated to management personnel and whether his
responsibilities were crucial to the mine's operation. It has also
considered whether the miner exercised managerial responsibilities
at the time of his negligent conduct.
Slip op. at 5-6 (citations omitted).
Applying this approach to the case at hand merely reinforces the appropriateness of
designating Andersop an agent. Although Anderson did not have a job title such as
superintendent or foreman (which would readily convey managerial status), focusing on his
function- the person in charge of the loadout area - confirms that it is proper to consider
Anderson an agent. Did he carry out responsibilities normally delegated to management?
Absolutely. He supervised the employees in his crew and conducted the weekly safety meetings.
Were his responsibilities crucial to the mine's operation? I don't think anyone could deny that
the Ioadout area is an integral part of the mining operation. Lastly, was Anderson exercising
managerial responsibility at the time of his negligent conduct? It is undisputed that the accident
occurred as a direct result of Anderson instructing backhoe operator Jason Jones to release the air
brake on the locomotive.

In declining to consider Anderson an agent, my colleagues claim support for the judge's
finding that the control Anderson exercised over the loadout area was "tightly circumscribed."
However, other than visiting the loadout area several times a shift to check on how things were
going, Tr. 154; 267, 281, it is unclear how Reese, the plant foreman, exercised this allegedly tight
control. Although.Reese may have told Anderson what work was to be performed each day, it
was Anderson who decided how to direct the crew in order to get that work done. Indeed, far
from exhibiting a tight control over the loadout area, the record would indicate instead that
supervision by Reese was quite loose. Like Commissioner Marks, I also find telling the judge's
remarks that it was strange for Reese, on the day of the accident, to neither know of, nor be
curious about, whether the brakes on the rail cars had been set. 21 FMSHRC at 82. In fact, I
find such stunning lack of involvement by higher management to be inconsistent with, and
indeed to fatally undermine, the claim that Anderson's control of the loadout area was "tightly
circumscribed."
My conclusion regarding Anderson's status is consistent with Commission decisions
resolving whether certain miners should be considered agents or supervisors. Cases where the
Commission has considered a miner to be an operator's agent include Ambrosia Coal & Constr.
Co., 18 FMSHRC 1552, 1560-61 (Sept. 1996) (miner was agent when he accompanied
inspectors on their inspections, gave work orders to abate citations, was responsible for seeing
647

that equipment repairs were made, was paid a salary like management, and did not receive extra
pay for overtime) and Rochester & Pittsburgh Coal Co. ("R&P"), 13 FMSHRC 189, 194-96
(Feb. 1991) (miner was an agent when he conducted statutorily mandated weekly shift
examination); see also Pocahontas Fuel Co., 8 IBMA 136, 146-48 (Sept. 1977), aff'd, 590 F.2d
95 (4th Cir. 1979) (Coal Act case) (miner was an agent when he conducted pre-shift examination
which was statutorily mandated duty of operator). Although the particular job duties in these
cases differed from Anderson's, the level of responsibility was comparable.
The cases cited by the majority, in which the Commission found that the miner was not
an agent or supervisor, are readily distinguishable. In Whayne Supply Co., 19 FMSHRC 447,
451 (Mar. 1997), for example, the miner simply carried out routine repair duties, and helped less
experienced miners. In U.S. Coal, Inc., 17 FMSHRC 1684, 1688 (Oct. 1995), the miner was an
electrician qualified to repair and maintain equipment, who could take it out of service when
warranted. Finally, in REB Enters., Inc., the miner did not have the authority to directly initiate
the assignment of work to employees. 20 FMSHRC 203, 211(Mar. 1998). The Commission in
REB noted that, unlike in the instant case, the Secretary had failed to present evidence that the
miner was directly responsible for controlling the acts of miners or that he was responsible for
their safety. Id. at 211-12.2
In holding that only an agent's negligence may be imputed to an operator, R&P, 13
FMSHRC at 194, the Commission has already eliminated the actions ofrank-and-file miners as a
basis for unwarrantable failure findings. I share the concern expressed by Commissioner Marks
that if the Commission adopts an overly-restrictive view regarding who qualifies as a supervisor
or agent, we may be insulating management from negligence findings in some circumstances
where it is warranted. This could ultimately undermine the optimal vigilance about safety and
health matters which is the core purpose of the Mine Act, as operators who know that they will
avoid unwarrantable findings and be subject to only minor penalties for the actions of most
individuals. under their control may be tempted to cut comers when it comes to complying with
safety and health regulations.

2

In addition, the majority observes that the Commission has also been guided by
common law principles of agency, stating that "the acts or knowledge of an agent are attributable
to the principal" (slip op. at 5 (citing Pocahontas Fuel Co., 8 IBMA at 147)), and that "a
principal is liable for the acts of an agent that are apparently within the agent's authority and
which the principal permits the agent to exercise," (id. (quoting Ambrosia, 18 FMSHRC at 1561
n.12)). These precepts are not violated by a determination that Martin Marietta (the principal)
unwarrantably violated the Act on the basis of the actions of Anderson (the agent). The manner
in which Anderson attempted to clean the scales is the behavior which underlies the citation.
Cleaning the scales was within Anderson's authority and was a job that Marietta permitted him to
exercise.

648

Unfortunately, I believe my colleagues have taken a giant step toward that overlyrestrictive approach with their decision in this case. They decline to consider Anderson an agent
even though Anderson regularly supervised employees in the loadout area, an activity which
brings him squarely within the Act's definition of agent. The fact that Anderson did not have
responsicility for hiring or firing these individuals, and the fact that Anderson was himself
subject to supervision does not change his status as agent. The relevant factor, it seems to me, is
that Anderson had ongoing authority to tell the other miners what to do. The miners
acknowledged this authority. Accordingly, when Anderson told Billy Moss to hook up the valve
which allowed the air compressor on the locomotive to be used for purposes other than braking,
Moss complied. Likewise, on the day of the accident, when Anderson told Jones to release the
air brake, Jones did as instructed. Anderson died as he was cleaning the scales with the
compressed air from the locomotive. Had Anderson chosen instead to instruct a member of his
crew to clean the scales, that miner would no doubt have complied, and would have been killed
instead of Anderson. I suggest that when the operator gives an individual like Anderson the
authority to direct miners regarding what tasks will be performed, and how those tasks will be
carried out, that individual should be considered acting on the operator's behalf and the operator
should be held accountable for that individual's actions.
For the reasons stated above, I would reverse the judge's determination that Anderson
was not an agent of Martin Marietta Aggregates. I would find that he was an agent, hold that the
violation was the result of the operator's unwarrantable failure, and impute his negligence to the
operator for the purpose of determining a penalty. Accordingly, I respectfully dissent.

649

Distribution
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Theodore L. Garrett, Esq.
Covington & Burling
1201 Pennsylvania Ave., N.W.
P.O. Box 7566
Washington, D.C. 20044
Henry Chajet, Esq.
David B. Robinson, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037
Harry Tuggle, Esq.
United Steel Workers of America
Five Gateway Center
Pittsburgh, PA 15222

650

ADMINISTRATIVE LAW JUDGE DECISIONS

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

May3, 2000
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 98-111
A. C. No. 46-01318-04348
Robinson Run No. 95

CONSOLIDATION COAL COMPANY,
Respondent

Mine:

DECISION ON REMAND

Before: Judge Bulluck
This civil penalty proceeding involves a violation of30 C.F.R. § 75.214, a mandatory
safety standard for underground coal mines, requiring that, "(a) A supply of supplementary roof
support materials and the tools and equipment necessary to install the materials shall be available
at a readily accessible location on each working section or within four crosscuts of.each working
section," and "(b) The quantity of support materials and tools and equipment maintained
available in accordance with this section shall be sufficient to support the roof if adverse roof
conditions are encountered, or in the event of an accident involving a fall." By decision issued
June 9, 1999, I concluded that the Secretary had proven a "significant and substantial" violation,
not the result of Consolidation Coal Company's ("Consol") unwarrantable failure to comply with
the standard, modified the 104(d)(2) order to a 104(a) citation, and assessed a $2,000.00 penalty.
21 FMSHRC 612 (June 1999) (ALJ). The Secretary appealed my unwarrantable failure
determination.
The Commission concluded that the violation was the result of Consol's unwarrantable
failure, reversed my determination, and remanded the proceeding for my assessment of an
appropriate penalty. Consolidation Coal Company, 22 FMSHRC 328 (March 2000).

FACTUAL BACKGROUND
In its decision, the Commission summarized the facts as follows:

Consol owns and operates Robinson Run No. 95, an underground coal
mine in West Virginia. On January 15, 1998, MSHA inspector Charles Thomas
651

was conducting a Triple-A inspection at the mine. While in the 12-D section of
the mine to check on safety equipment, Thomas noticed the absence of any
centrally located supplementary roof support, including posts, caps, wedges, and a
saw. As a result, Thomas spoke with Consol day foreman Kevin Carter. Thomas
asked Carter about the location of the supplementary roof support and number of
roof posts. According to Carter, Thomas told him to "count your posts." Carter
told Thomas that he would "take care of it." As Thomas left the mine,
accompanied by miner safety representative Dave McCullough, Thomas also
spoke with Consol safety director Robert Church and told him that attention was
needed to address supplementary roof support in the 12-D section.
Subsequently, during his shift on January 15, Carter counted the posts and
caps along the supply track and found that there were only 11. Carter then spoke
with mine foreman Tom Harrison and requested additional posts and other roof
support materials. Around 3:00 or 4:00 that afternoon, Harrison ordered the posts
from the supply yard, which is located about 10 miles from the 12-D section.
MSHA inspector Thomas returned to the mine to continue his Triple-A
inspection on January 17 during the midnight shift, 2 days and four shifts after he
left the mine on January 15. Consol foreman Frank Slovinsky was substituting for
the regular foreman of section 12-D. Thomas asked Slovinsky where the
emergency roof supports were located. Slovinsky responded that they should be
in the tool car. When the posts could not be located there, the two searched along
the supply track outby four crosscuts of the section. They eventually located 11
posts and some cap pieces and wedges, but never found a saw.
Inspector Thomas then issued Order No. 4888994 charging Consol with a
violation of30 C.F.R. § 75.214 for failing to maintain a supply of supplementary
roof support material at a readily accessible location within four crosscuts of the
12-D section.

*****
Consol's roof control plan for the Robinson Run mine further specified that
"[t]he quantity of supplementary roof support material required by [section]
75.214(b) shall consist of a minimum of twenty (20) posts of proper length with
sufficient cap pieces and wedges."
The inspector designated the violation as significant and substantial (S&S)
and alleged that it was the result of Consol's unwarrantable failure. The violation
was abated between 3:30 and 5:00 a.m. the following morning when miners were
able to locate additional posts along the supply and main tracks, and stored 20
posts, along with wedges, cap pieces, and a saw, in the No. 11 crosscut.

652

Id. at 328 (citations and footnote omitted).

PENALTY
In accordance with the Commission's decision, I reassess the six penalty criteria set forth
in section l IO(i) of the Act, 30 U.S.C. § 820(j), in light of the elevated degree of negligence
ascribed to Consol. Consol is a large operator, with an overall history of violations that is not an
aggravating factor in assessing an appropriate penalty, and the $5,000.00 penalty proposed by the
Secretary will not affect its ability to continue in business. The gravity of the violation is serious
since, as previously stated in the original decision, time is of the essence in providing safe
passage for rescue of miners who have been injured by unforseen adverse roof conditions. In
light of the Commissions's conclusion that "[f]ailing to follow up on the inspector's admonition
in such a way as to insure that the request for required roof control supplies did not get lost in the
company's own bureaucracy is inexcusable," I ascribe high negligence to Consol. Id. at 333. I
also take into account the Commission's finding that "Consol officials made some effort to
address the violation," albeit inadequate, and consider that effort to be a mitigating factor. Id. at
332.

Accordingly, having considered Consol's large size, insignificant history of violations,
seriousness of the violation, high degree of negligence, good faith abatement and measures that it
took for compliance as a mitigating factor, I find that a penalty of $4,000.00 is appropriate.

ORDER
Accordingly, it is ORDERED that 104(d)(2) Order No. 4888994 is AFFIRMED, as
issued, and that Consol pay a penalty of $4,000.00 within 30 days of the date of this remand
decision.

Jae eline R. Bulluck
Administrative Law Judge
Distribution: (Certified Mail)
Melonie J. McCall, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh,
PA 15241
\nt
653

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

May 5, 2000

CNIL PENALTY PROCEEDING

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

Docket No. CENT 2000-35-M
A. C. No. 34-01781-05509

v.
Allied Custom Gypsum Fairview
Mine

ALLIED CUSTOM GYPSUM INC.,
Respondent

DECISION
Appearances: Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas,
Texas, for Petitioner;
Peter T. VanDyke, Esq., McAfee & Taft, Oklahoma City, Oklahoma, for
Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
Allied Custom Gypsum, Inc., pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815. The petition alleges three violations of the Secretary's mandatory
health and safety.standards and seeks a penalty of$165.00. A hearing was held in Oklahoma
City, Oklahoma. For the reasons set forth below, I vacate the three citations and dismiss the
proceeding.

Background
The Fairview Mine is a small gypsum mine, owned and operated by Allied Custom
Gypsum, near Fairview, Oklahoma. Eight employees usually work at the mine, which consists of
a mine and crusher plant. The crusher is portable and can be moved on mine property.
The mine and crusher were inspected on July 29, 1999, by MSHA Inspector W. DeWayne
Thompson and the supervisor of the local MSHA Field Office, Art Ellis. During the inspection,
Thompson issued several citations. The company contested three of them, which are discussed
below.

654

Findings of Fact and Conclusions of Law
Citation No. 7878361
Inspector Thompson observed a portable diesel fuel tank on a trailer. The tank had a sign
on it which stated: "Danger Flammable." (Govt. Ex. 4, Resp. Ex. G-2.) Part of the sign was
partially obscured by dust which had adhered to diesel fuel apparently spilled during the loading
of the tank. It was extremely windy and dusty on the day of the inspection.
The inspector issued Citation No. 7878361, alleging a violation of section 56.1401 of the
Secretary's regulations, 3q C.F.R. § 56.1401, because: "The portable diesel fueling trailer was
not provided with the proper warning to alert others to 'no smoking or using open flames.' At
present, only flammable liquids signs are provided." (Govt. Ex. 2.) Section 56.1401 provides
that: "Readily visible signs prohibiting smoking and open flames shall be posted where a fire or
explosion hazard exists."
There is no dispute that the Respondent's sign did not specifically state that smoking and
open flames were prohibited. Thus, it would appear that the company violated the regulation.
However, the inspectors permitted the company to abate the violation by posting a sign that
stated: "Danger Diesel No Smoking." (Tr. 186.) On its face, this sign does not prohibit open
flames.
The regulation is clearly designed to prevent fires or explosions. I find that a sign that
says "Danger Flammable" is just as likely to serve that purpose as is a sign that states "Danger
Diesel No Smoking." A reasonable person seeing a "Danger Flammable" sign would know that
smoking and open flames should be kept away from the area Moreover, it is inconsistent on
MSHA's part to cite the company for not having a sign specifically prohibiting smoking and
open flames, and then to find that they have satisfied the regulation with a sign that specifically
prohibits smoking~ but not open flames.
I conclude that Allied Gypsum's sign complied with the intent and purpose of section
56.4101. Accordingly, I will vacate the citation. 1

1

Although mentioned neither in the citation nor the inspector's notes about the
violation, the inspector gave as one of the reasons for issuing the citation that the sign was
partially obscured by dust and fuel. However, it is apparent from the picture of the tank, (Resp.
Ex. G-2), that the sign could still be read through the dust. In addition, it is also apparent that the
windy, dusty conditions on the morning of the inspection contributed to the obscurity.
Consequently, I ~o not find that this condition was a violation.
655

Citation No. 7878359
During the inspection, Inspectors Thompson and Ellis asked Alan Robinett, the plant
manager, who was accompanying them on the inspection, how the diesel fuel tank for the
crusher's primary drive motor was filled. After he showed them, Thompson issued Citation
No. 7878359 alleging a violation of section 56.11001, 30 C.F.R § 56.11001, because:
The company has not provided a safe means of access to
the top of the fueling hatch for the diesel holding tank for the
primary drive motor. At present, to gain access they must stand on
the mid-rail of the set of hand railing that surrounds the drive
engine for the primary and reach over to remove the cover. The
hatch cover is approximately ten feet above the ground level and
from the platform of the drive motor, about three feet from the
hand railing that they usd to stand on.
(Govt. Ex. 5.)
Section 56.11001 requires that: "Safe means of access shall be provided and maintained
to all working places." The Commission has held, with regard to an identically worded
regulation, that "the standard requires that each 'means of access' to a working place be safe."
Hanna Mining Co., 3 FMSHRC 2045, 2046 (September 1981); accord Homestake Mining Co.,
4 FMSHRC 146, 151 (February 1982). In this case, the evidence is that there were two means of
access to the filler neck on the fuel tank. One was the one described in the citation and the other
was by reaching through an opening in the hand railing instead of standing on it.2
Inspector Thompson testified that reaching through the opening was a safe means of
access. (Tr: 124-26.) He also testified that standing on the mid-rail, holding on to the top rail,
and using the free hand to unscrew the top off of the filler neck and stick the nozzle of the hose
used to fill the tank into the filler neck was a safe means of access. (Tr. 129-30.) Thus, if it was
unsafe at all, the method.demonstrated to the inspector was unsafe only if the top rail was not
held on to.
The obvious conclusion to be drawn from this is that the company provided safe means of
access to the filler neck, but that shorter employees may not always have availed themselves of
that means. Consequently, I conclude that the company did not violate the regulation and will
vacate the citation.

2

The evidence also indicated that only shorter employees had to stand on the hand
railing; the tall~r ones could reach the filler neck standing on the platform. (Tr. 258-59.)
656

Citation No. 7878362
Inspector Thompson issued Citation No. 7878362, charging a violation of section
56.14107(a), 30 C.F.R. § 56.14107(a), because:
The head pulley to the Main Reversible Conveyor Belt for
the primary was not guarded to prevent a persons [sic] from
contactirig the moving machine parts. The ten inch smooth pulley
was approximately 6.5 feet (2 meters) above the spillage. This
condition expose [sic] employees to an entanglement hazard. The
moving m:;ichine parts could be accessed, but not easily, because of
height of the head pulley, making the chance of an accident in [sic]
unlikely.
(Govt. Ex. 8.) The regulation states:

§ 56.14107 Moving machine parts.
(a) Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive, head, tail,
and takeup pulleys, flywheels, couplings, shafts, fan blades, and
similar moving parts that can cause injury.
(b) Guards shall not be required where the exposed moving
parts are at least seven feet away from walking or working
surfaces.
The head pulley in question moves a conveyor belt which carries material from the
crusher and deposits it on a belt below it.3 The material is conveyed on the lower belt to a pile
where it is removed by front-end loader. Inspector Thompson testified that he measured six feet
eight inches from the top of the head pulley to the top of the spillage under it. He admitted that
the "6.5 feet" measurement in the citation was a mistake. (Tr. 136.) The company terminated
the violation by removing the spillage so that the distance from the ground to the pulley was
"about 7.5 feet." (Govt. Ex. 8.) ·
According to the inspector's notes, the head pulley is "located in [a] remote section away
from [a] common travelway" and "no one is assigned to work on the ground" in the area. (Govt.
Ex. 10.) It is apparent from the evidence that any work performed in the immediate area of the
head pulley would be to adjust the lower belt. The higher belt would not be operating while that
work is being discharged. (Tr. 267-68.) Moreover, it was the company's policy to clean up the
spillage at least once a day. (Tr. 270-71.)

3

Contrary to the inspector's belief, the belt was not reversible.
657

Although there is nothing to prevent miners from walking in the vicinity of the head
pulley, it is clearly not a common walk way. Someone would have to go out of his way to walk
under the head pulley and there is no reason why someone would just walk in that area.
Consequently, the head pulley is not within seven feet of a walking surface. In addition, when
work is being performed on the lower belt, the upper belt is shut down and would not be a
hazard. Accordingly, while operating, the head pulley is not within seven feet of a working
surface. Finally, most of the time, even if the area below it were a working surface, the head
pulley comes within the seven foot exception to the regulation. Therefore, I conclude that the
Respondent did not violate section 56.14107(a) and will vacate the citation.

Order
It is ORDERED that Citation Nos. 7878359, 7878361 and 7878362 are VACATED and
this proceeding is DISMISSED.

T. Todd Hodg n
Administrative Law Judge

Distribution:
Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin
Street, Suite 501, Dallas, TX 75202 (Certified Mail)
Peter T. Van· Dyke, Esq., McAfee & Taft, Two Leadership Tower, l 01h Floor, 211 N. Robinson,
Oklahoma City, OK 73102-7103 (Certified Mail)

\fb

658

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

May 8, 2000
DAVID MORALES,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 99-188-DM

V.

Mission Mine Complex
ASARCO INCORPORATED,
Respondent

Mine l.D. 02-02626

DECISION
Appearances:

Before:

David Morales and Manny A. Rojas, Jr., Legal
Researcher, Tucson, Arizona for Complainant;
David Farber, Esq., Patton Boggs, Washington, DC,
for Respondent.
Judge Manning

This case is before me on a complaint of discrimination brought by David Morales
against Asarco Incorporated ("Asarco") under section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). The complaint alleges that Asarco
terminated Mr. Morales on August 13, 1998, in violation of section 105(c). A hearing in this
case was held in Tucson, Arizona, and Asarco filed a post-hearing brief Although Mr. Morales
speaks English, a Spanish-English translator was provided by the Commission at the hearing. 1
For the reasons set forth below, I find that Mr. Morales did not establish that he was
discriminated against under the Mine Act and I dismiss his complaint of discrimination.

I. FINDINGS OF FACT
Asarco operates the Mission Mine Complex in Pima County, Arizona, south of Tucson.
Mr. Morales began working at the mill in April 1995. In August 1996, he transferred to the
surface mine as a haul truck driver. Mr. Morales received training on the safe operation of the
haul trucks mostly in English but he also received some training in Spanish. He may not have
understood everything that he was told in English. The haul trucks are large 240 ton off-road
vehicles.

1

Everything that occurred at the hearing was translated from English into Spanish by the
translator. Mr. Morales spoke mostly in Spanish, which was translated into English.
659

On April 7, 1997, Mr. Morales filed a complaint with the Department of Labor's Mine
Safety and Health Administration ("MSHA") alleging that fumes in the cab of his haul truck
were making him sick. MSHA investigated the complaint but did not issue any citations as a
result of Mr. Morales's complaint. (Exs. R-8, R-9). Mr. Morales told a number of people at the
mine that he had called MSHA about the fumes. Prior to filing the complaint with MSHA,
Morales told his supervisors that exhaust from a haul truck entered the cab making it hard for
him to breath and giving him headaches. Mr. Morales was examined by the mine's EMT and
was taken to a local hospital for examination. He was released to return to work on the same
day. Asarco's truck shbp could not find any problems with the haul truck and it was returned to
service. Mr. Morales filed the complaint with MSHA because he did not believe that Asarco
fixed the problem.
Mr. Morales alleges that from April 7, 1997 until he was terminated on August 13, 1998,
he was harassed by Asarco management. He contends that the events that are described below all
relate back to this health complaint that he filed with MSHA. Mr. Morales alleges disparate
treatment because he believes that the disciplinary actions taken against him by Asarco were
more severe than discipline given to other similarly situated employees. He believes that because
Asarco knew that it could not immediately fire him for the health complaint, mine management
carefully monitored his work and charged him with infractions of the company's work rules in
situations where other employees were not charged. He alleges that he was under constant
pressure to comply with every work rule or face termination. Mr. Morales testified that once
Asarco accumulated a sufficient number of infractions against him, it terminated him and used
these infractions to hide the fact that he was really terminated for complaining to MSHA.
Mr. Morales relies on a number of factors to establish his case. He testified that Todd
Parks, who was the General Mine Supervisor in April 1997, called him into his office after the
MSHA inspector left the mine. Morales testified that Parks asked him why he called MSHA.
Morales testified that after a short discussion, Parks told him that he was going to be fired for
making the health complaint. (Tr. 42). Morales complained to the union but was later told that
the company could do what ever it wanted. Id. It is Morales's understanding that, although a
citation was not issued, Asarco was required to fix the haul truck that was leaking fumes into the
cab. Asarco denies this statement. The MSHA report indicates that it tested the cab for carbon
monoxide, carbon dioxide, and nitrogen dioxide and determined that the air in the cab did not
violate MSHA's health standards. (Ex. R-9).
Morales also testified that other employees at the mine told him that he was being
watched very closely-by mine supervisors so that he had better be careful. Mr. Morales testified
that supervisors were very disrespectful towards him, they cussed at him, and they called him a
"wetback." He also stated that when he was involved in any sort of "incident," he was not given
a full opportunity to tell his side of the story. The incidents that Morales is referring to are the
incidents that Asarco set forth as justification for his termination. Finally, Mr. Morales contends
that Asarco unjustly considered the fact that he was frequently absent from work when it
terminated him. He states that he was absent from work because of injuries that occurred on and
off the job and because his wife was recovering from surgery. (Tr. 44).

660

I discuss each of these incidents in chronological order. In July 1995, before he made his
health complaint with MSHA, Mr. Morales was working in the mill at the Mission Complex.
Mr. Morales was disciplined when he broke a fitting on a piece of machinery because he drove
the machinery away from a ball mill that he had charged without disconnecting a hose. (Tr. 21718; Ex R-10). Because Mr. Morales had received earlier verbal counseling, he was given a
written warning for this event. Mr. Morales does not dispute that this accident occurred, but
contends that he was new at the job and was trying to work a little too fast. He does not believe
that he should have been disciplined because he was new at the job.
In June 1996, after Mr. Morales had become a haul truck driver, he backed his truck into
the truck shop without having a spotter present. Asarco's safety rules provide that when backing
large trucks in congested areas, a second person must be on the ground to make sure the area is
clear. (Ex. R-5 at 13). Mr. Morales received a disciplinary write-up for this event. The write-up
stated that disciplinary action, including termination, could result from further safety infractions.
Mr. Morales testified that he only backed up about 20 meters and he did not know that a spotter
was required. (Tr. 343-44). This incident also occurred before he made his health complaint.
On April 5, 1997, Mr. Morales parked his haul truck in the "ready line" in a tight space
between two other haul trucks. When he ~as asked why he parked in such a tight area, he
replied that he was in a hurry. (Ex. R-14). When Mr. Morales pulled the truck out of this tight
space, his truck struck the adjacent truck's mirror breaking the brace for the mirror. Mr. Morales
was given counseling and a disciplinary write-up for this event. (Ex. R-14). Mr. Morales
testified that parking close to other haul trucks was a common practice at the mine. He took a
photograph in November 1999 of parked haul trucks that shows two trucks parked close together.
(Ex. C-4). He also testified that when other truck drivers were in minor accidents that caused
only slight damage to company property, they were not disciplined. This accident occurred
before he called MSHA with his health complaint.
On August 8, 1997, Mr. Morales parked his haul truck near a dumping point for lunch.
He had not placed chock blocks ("chocks") behind the tires of his truck. 2 Asarco's safety rules
provide that anytime a haul truck driver parks his truck and leaves his vehicle, the wheels of the
truck must be chocked. Several years earlier, two miners were killed at the Mission Mine when a
parked truck that was not chocked rolled forward while they were working on the truck. Morales
was written-up for this event. (Ex. R-15). Mr. Morales testified that he was still in the cab of the
truck when Harlan Young, a pit supervisor, observed the truck without chocks. (Tr. 354-55,
529). Morales believes that he was not required to chock the truck. Morales stated that he did
not really understand the company's rule on chocks at the time of this incident so he simply put
chocks under the wheels as Mr. Young requested.

2

The word "chocks" was incorrectly transcribed as "chalks" in the transcript.
661

On December 13, 1997, Morales parked his haul truck without putting chocks under the
wheels and then proceeded to wash out the cab of his truck with water. Because the truck is
equipped with rather complex electrical equipment in the cab, including a computer, miners are
not permitted to wash out the cab with water. Mr. Morales then attempted to remove the cap on
the radiator without turning off the "master switch" as he had been instructed. He could have
been severely burned as a result. Indeed, he had been burned by radiator fluid on a previous
occasion. Mr. Morales received a disciplinary write-up for these events. (Ex R-16). Morales
states that Raymond Bell, another front line supervisor, was very disrespectful to him when Bell
saw what he was doing and that Bell used vulgar language with him. (Tr. 357, 530-31 ). This
disrespectful attitude upset Mr. Morales and he discussed it with the general mine operations
supervisor, Mark Kalmi. Morales believes that the company ''used the thing with the chocks as
an excuse to use it against me now." (Tr. 531 ). He believes that Asarco did not require trucks to
be chocked until after this incident.
On January 26, 1998, Mr. Morales's truck was observed zig-zagging from side-to-side
down a ramp at the pit. (Tr. 454-56; Ex. R-26). Asarco management did not believe that he was
maintaining proper control of his truck in violation of company safety rules. Most of the
witnesses at the hearing testified that Mr. Morales had a reputation as a rather fast and careless
driver, both at the mine and in his own vehicle. Mr. Morales testified that the truck that he was
driving was old and was not in good shape.
On February 13, 1998, two Asarco supervisors observed Mr. Morales without his safety
glasses while standing on the deck of his truck. Asarco safety rules provide that safety glasses
must be worn at all times. He was written-up for this event. (Ex. R-18). Mr. Morales contends
that he took off his glasses to look at something and talk to supervisors and that he generally
wears them. (Tr. 363).
On February 28, 1998, Mr. Morales was assigned a haul truck that used compressed air to
start the engine. A mechanic attached a compressed airline to his haul truck at the ready line.
Mr. Morales failed to disconnect this airline before he drove away from the ready line. When he
drove away, part of the air hose was ripped from the air compression system. When his truck
was inspected later that shift, it was discovered that only one of six tail lights was working.
From these two events, the company concluded that Mr. Morales did not do a pre-shift
examination of his truck before he drove away from the ready line. Mr. Morales was given a
one-day disciplinary layoff for failure to do a proper pre-operational check of the truck and
leaving the ready line with the airline attached. (Ex. 19). Mr. Morales believes that the
mechanic should have removed the airline. He also states that he did a pre-operational check but
that he could not check the lights without assistance from someone else. (Tr. 364-70, 532-33).
Morales states that Asarco management abused him after this event by interrogating him about it
for over an hour looking for an excuse to blame him. (Tr. 366-67).
On March 20, 1998, Mr. Morales was driving to work on Interstate 19. Morales testified
that there was a pickup truck in the left lane driving slowly and a larger truck in the right lane.
When Morales attempted to pass the trucks, the driver of the pickup accelerated but he was able
662

to pass between the two trucks. (Tr. 63). The man driving the pickup was Ken Dickey, a fellow
miner at the Mission Mine. Apparently, Mr. Dickey thought that Morales cut him off and he
picked up a handgun that he had in his truck and held it up to show Mr. Morales through the
truck window. When Mr. Morales arrived at the mine he waited for Mr. Dickey in the parking
lot and confronted him about the incident. Dickey and Morales started verbally fighting about
the incident as they entered the mine and walked to the change room. At one point Mr. Dickey
said something like "this is the West and I can shoot anybody I want." This angered Morales
who told Dickey that he was a good boxer. An altercation ensued and Asarco supervisors had to
separate the two men. Morales called the police. Both employees were issued disciplinary letters
and were suspended for the remainder of the day with pdy.
On March 30, 1998, Mr. Morales drove his haul truck into a berm while turning around
and damaged the automatic fire suppression system on the truck. The damage was not significant
but it set off the extinguishers. He drove away from the site of the accident but later reported to
dispatch that the fire extinguishers had gone off and he felt dizzy. Asarco charged him with a
violation of the company's safety rules by recklessly operating his haul truck and leaving the
scene of an accident. (Ex. R-21). Mr. Morales received a two-day disciplinary layoff. Mr.
Morales does not believe that he is responsible for the accident. He testified that he left the area
to get out of the travelway and that because the truck was old it had malfunctioned. (Tr. 534-37).
On May 11, 1998, Mr. Morales was driving along a two-lane county road on the way to
work when he passed Nancy Baca, who also drove trucks in the pit. He was driving very fast, up
to 70 mph as he passed her. She apparently made an obscene gesture at him with her hand. She
arrived at the mine's parking lot shortly after he did. When Ms. Baca arrived, he confronted her
and, in Spanish, cussed at her and called her obscene names. Later, Mr. Morales apologized to
Ms. Baca, but she would not accept his apology and reported the incident to management.
Morales received a two-day disciplinary layoff for exhibiting confrontational and threatening
behavior to anpther employee. (Ex. R-22). This discipline was the last step before termination
under Asarco's progressive disciplinary system. Mr. Kalmi was especially concerned because
this incident occurred less than two months after the Dickey incident. Mr. Morales testified that
Ms Baca did not like him and that she took advantage of this situation to get him into trouble
with management. (Tr. 371-76, 538-39). He believes that Ms. Baca should have been
disciplined too. In addition, he points out that his supervisors have cussed at him and have called
him names.
On August 8, 1998, Mr. Morales drove his haul truck around the blind side of another
haul truck and pulled up close to the front of this other truck, nose-to-nose. He apparently pulled
up in this manner because he wanted to discuss the possibility of car pooling with the driver of
the other haul truck, Gilbert Sanchez. When Mr. Morales backed away, the trucks became
entangled causing damage to the other truck. Asarco contends that Morales violated a company
safety rule which provides, "[h]aul trucks should not be parked front-end to front-end, parallel, or
cab to cab for purposes of conversation." (Ex. R-5 at 34). Morales testified that as he approached
the other truck, Mr. Sanchez assisted him through the use of hand signals. Consequently, Mr.
Morales believes that Mr. Sanchez was partly to blame for the damage to the truck. Mr. Sanchez
663

did not testify at·the hearing, but according to the testimony of mine manager Sylvester Lakowski
and Messrs. Kalmi and Young, Sanchez was signaling Morales to stay away from his truck. 3
Asarco conducted an investigation of this accident. In his summary of this investigation,
Mr. Young wrote:
During the meeting [about the accident], Gilbert [Sanchez]
said he .tried to waive David [Morales] from approaching when he
quite unexpectedly saw him pull up to his truck. He further said
that David was driving stupidly for most of the night, and driving
fast.
(Ex. R-23). Sally Koos was operating the shovel in the pit at the time. She did not see the trucks
make contact. According to Young's report she related the following:
[S]he noticed that 359 [Sanchez's truck] was waiting at the
crossover mat while she cleaned up in front of the shovel, and then
saw 357 [Morales's truck] backing up around the side of 359 and
to the back of it and then leave the shovel area without loading.
She also made mention that 357 had been driving wildly during the
night and backing up to the shovel too fast and crooked. One other
unsafe action she witnessed was when 357 would pull in at the
right hand side of the shovel, he would come in fast, make the turn
hard, slamming on the brake and slid quite a few feet in the mud
toward the pit edge berm before backing in.

Id.
During the investigation, Mr. Sanchez drew a map showing the position of the trucks.
(Ex. R-24). Mr. Morales did not dispute the drawing. Mr. Morales believes that Sanchez was
equally responsible for this accident and that Asarco blamed Morales because they wanted to fire
him for complaining to MSHA about fumes in his truck cab. He stated that other employees park
their trucks front-end to front-end without receiving any discipline.

3

I required the parties to exchange witness and exhibit lists. Both parties complied with my
order. Asarco sent its list to Morales via Federal Express. Several days after the close of the
hearing, Morales informed my office that he did not receive Asarco's witness list until after the
hearing because the FedEx driver left the package at the office for his apartment complex. He stated
that he assumed that Asarco would call Mr. Sanchez as a witness. Mr. Morales did not inform me
at the hearing that he had not received Asarco's witness list and he could have called Sanchez as a
witness. Morales subpoenaed a number of Asarco employees who testified at the hearing.

664

At the conclusion of its investigation, Asarco terminated Mr. Morales from his
employment. It based the termination on the infractions described above and his excessive
absenteeism. (Ex. R-23). As stated above, Mr. Morales believes that all of the discipline that he
received came about as a result of his health complaint to MSHA.

II. DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS
Section 105(c) of.the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act" recognizing that, "if miner& are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 95th Cong., !51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 623 (1978).
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by proving that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity. Secretary ofLabor on behalfof
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev'd on pther
grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary ofLaqor on behalfofRobinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981 ). The mine operator may rebut the prima
facie case by showing either that no protected activity occurred or that the adverse action was in
no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine
operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving
that it was also motivated by the miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Id.; Robinette, 3 FMSHRC at 817-18; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (41h Cir. 1987).

A. Did David Morales Engage in Protected Activity?

Mr. Morales engaged in protected activity when he complained to Asarco about fumes in
the cab of his haul truck and when he called MSHA to complain about these fumes. His
complaint to MSHA was made o~ April 7, 1997

B. Was David Morales's Discharge from Employment Motivated in any part by his
Protected Activity?
In determining whether a mine operator's adverse action was motivated by the miner's
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect." Secretary ofLabor on
behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), rev'd on
other grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence." Id. (citation omitted).

665

Some of the circumstantial indicia of discriminatory intent include (1) knowledge of the
protected activity; (2) hostility or animus towards the protected activity; and (3) coincidence in
time between the protected activity and the adverse action.
Mr. Morales is claiming disparate treatment. He points to the above events to establish
that he was treated more harshly than other employees. He believes that he was watched very
closely by management between April 1997 and August 1998 for any mistakes he made no
matter how minor. He alleges that supervisors would follow him looking for a chance to
discipline him. He alleges that on two occasions he was required to take drug tests in situations
where he did not think it was warranted.
I agree with Mr. Morales that it is quite feasible for a mine operator to take the approach
that he is suggesting. A sophisticated operator like Asarco can target a miner for discharge and
closely monitor his conduct over a lengthy period. It can impose discipline for every violation of
company rules in order to create a record on which to base the termination. Many employees
could be subject to termination in such a fashion. Indeed, one miner on layoff status testified that
Asarco was closely watching everyone because it wanted to reduce the workforce. (Tr. 152).
I find, however, that Mr. Morales failed to show that he was treated differently. Most of
the events discussed above are serious violations of Asarco's safety or work rules. Although
there is some evidence that these rules were not consistently enforced at the mine, there is
nothing to suggest that Mr. Morales was targeted for discharge, that he was being closely
watched because of his MSHA complaint, or that his discipline was unusually harsh.
Mr. Morales believes that his discipline and discharge were unfair. It is important to
understand that I do not have the authority to determine whether this discipline was fair or
reasonable. The "Commission does not sit as a super grievance board to judge the industrial
merits, faim.ess, reasonableness, or wisdom of an operator's emi)1oyment policies except insofar
as those policies may conflict with rights granted under section 105(c) of the Mine Act." Delisio
v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (December 1990)(citations omitted). The issue is
whether the discipline given to Mr. Morales was motivated in any part by his protected activity.
The discipline for three of the incidents discussed above occurred before Mr. Morales
engaged in protected activity. Jhese incidents are his accident in the ball mill, parking his truck
too close to another truck in the ready line, and backing his truck into the shop without a spotter.
As a consequence, the discipline given for these incidents do not support Mr. Morales's case.
The first incident after his complaint occurred in August 1997 when Mr. Morales was
cited for failing to chock his truck near the dumping area. Morales testified that he was sitting in
his truck with the air conditioning on waiting for clearance to take his lunch break. Under such a
circumstance, it does not appear that chocks were required unless he left his truck. Mr. Young's
report states that Morales's truck had stopped for lunch and the truck was not chocked. (Ex. R15). The report states that Young stopped to let Morales know that he must always chock his
truck when he is not parked in a designated tie down area. Id. Mr. Young testified that he wrote

666

down his reminder to Morales. (Tr. 449). It does not appear that Morales was seriously
disciplined in this instance but he was simply reminded to use chocks. Young's action did not
constitute harassment of Morales. There is no showing that he was singled out for this type of
write-up. As stated above, two miners were killed in the early 1990s when they failed to chock a
truck they were working on. I credit the testimony of Asarco's witnesses that the company
attempted to enforce its safety rules requiring the use of chocks. It appears that some supervisors
did not consistently enforce this rule, especially on the graveyard shift, but that does not establish
that Morales was singled out for harsher discipline under the rule.
In December 1997, Morales parked his truck, washed the cab out with water, got out onto
the front of the vehicle, and was attempting to remove the radiator cap so he could add more
water. Messrs. Bell and Young saw him there and investigated. Mr. Bell was quite agitated and
directed vulgar words and epitaphs at Mr. Morales. These Asarco managers were upset that he
had not chocked his truck, that he washed out the cab with water, and that he was attempting to
remove the radiator cap without releasing the pressure with the master switch. Morales was at a
water station and chocks were present in the area that he could have used.
He had been reminded a few months before to use chocks. In addition, he had been told to
release the pressure in the radiator before removing the cap. Indeed, he had been burned before
while removing a radiator cap. As discussed above, Morales received a disciplinary write-up for
this event.
Morales was particularly concerned about the disrespectful tone and vulgar language used
by Bell. The following day there was a meeting in Kalrni' s office about this incident. A Spanish
speaking union steward was present. Mr. Bell apologized to Mr. Morales for his vulgar
language. The reasons for the company's safety rules were explained to Morales in Spanish.
Mr. Bell was subsequently disciplined for using vulgar language with Morales.
This incident does not help establish that Asarco was out to get Morales for his MSHA
complaint. Morales put himself in danger by failing to chock the truck and attempting to take the
cap off the hot radiator. He violated company safety rules. Mr. Bell's conduct when he saw
what Morales was doing may have been disrespectful, but there .is no indication that he was
attempting to use this incident as an excuse to discipline Morales for his health complaint. I find
that Bell, Young, and Kalmi were genuinely concerned about the safety violations that Morales
committed.
In January 1998, Morales was observed driving down a ramp to the pit. It appeared to
Young and Bell that he did not have control of his truck. When Young questioned Morales about
it, Morales told him that his truck was functioning correctly. Mr. Lakowski testified that other
truck drivers in the pit told supervisors that they were concerned about Morales's driving
abilities. (Tr. 211 ). Morales had a reputation for driving!too fast. I find that this event and the
write-up that Morales received fails to support Morales position that the charges brought against
him were trumped up and that, as a result, he was treated differently than other employees.

667

In February 1998, Morales was written up for failing to wear his safety glasses. It appears
that he did not understand that he must wear safety glasses at all times. This incident was not a
major infraction but Morales was written up for it. In isolation, one could argue that this
infraction of the company's safety rules supports Morales's belief that Asarco was closely
watching him to catch him violating company rules. However, even if I accept his theory, this
event is one of many relied upon by Asarco that are of a more serious nature.
In February 1998, Morales drove away from the ready line without disconnecting a
compressed air hose. The compressed air hose was damaged as a result. Supervisor Jim Brown
reminded Morales when he arrived at the ready line that day to remove the airline before driving
away. (Ex. R-19). The evidence also establishes that Morales did not perform a thorough preoperational check of his truck. Morales testified that it was his belief that the truck should not
have been placed on the ready line if it were not ready to operate. It appears that he did not have
an appreciation of the requirement that each driver inspect his own truck for defects that could
affect safety. Morales was given a one-day disciplinary layoff.

The discipline Morales received for the February 28 incident does not support his case.
Truck drivers are required to do pre-operational checks of their equipment and they use another
driver when checking the lights. If another driver is not available to help, they call dispatch for
assistance. Although Asarco questioned Morales about these events, there is no corroborating
evidence that he was abused or interrogated about the incident in order to blame him for
something that he did not do. The charges against him were not fabricated.
The two events involving conflicts with other miners also do not support Morales. In
each case, these disputes originated off mine property but continued at the mine. I find that it
was reasonable for Asarco to discipline Morales for these confrontations. There has been no
showing of disparate treatment with respect to these incidents. Mr. Dickey was also disciplined
for his behavior at the mine.
With respect to the discharge of the fire suppression system on his truck, Morales'
contends that it was never established that he caused any damage. He believes that Asarco
incorrectly assumed that system was damaged when he drove up against a berm. He testified that
it is just as likely that the system malfunctioned. Even ifl assume that Morales's argument is
supported by the evidence, it does not establish that discipline was an excuse to get back at him
for his MSHA complaint. Morales received a two-day disciplinary layoff. There is nothing to
indicate that his discipline was motivated in any way by the MSHA complaint. The discipline
Morales received was becoming more severe with each infraction under Asarco's progressive
disciplinary system because of his prior history of violating company rules.
The event that ultimately led to his termination was fully investigated by Asarco.
Morales believes that Mr. Sanchez should also have been disciplined. Asarco did not discipline
Sanchez because his truck was stationary and the company credited his rendition of the events.
Asarco managers believe that Sanchez did not want Morales to drive up close to his truck and
that he was trying to motion Morales away. The company also credited the statements of

668

Sanchez and Ms. Koos that Morales had been driving too fast c:µld in a reckless manner during
the shift. I find that the evidence presented at the hearing concerning this accident does not
support a conclusion that Morales's termination from employment was connected to the
complaint he filed with MSHA in 1997.
Morales also testified that Asarco managers said that he would be fired for filing the
MSHA health complaint. Morales relies on statements made by Mr. Parks to support his case. It
must be noted that Parks no longer worked for Asarco when Morales was terminated and he was
not involved in that decision. The two conversations that Morales relies upon occurred at the
time MSHA investigated his health complaint and in March 1998. Morales testified that Parks
told him that he was going to be fired for getting MSHA involved in the health complaint. Mr.
Parks, who now works as a salesman, was not available to testify at the hearing. James Coxon,
the mine's human resources manager, testified that he called Parks about his conversations with
Morales. Coxon testified that Parks told Morales in the first conversation that he would prefer
that Morales come to him rather than MSHA ifhe had safety or health concerns. Parks said that
in the second conversation, in March 1998, Morales mentioned that he was thinking about
getting a job with the railroad. Parks told Coxon that in response to this statement he told
Morales that getting another job was a good idea "because if you continue on with the safety
violations you have here, you will be discharged." (Tr. 502). Since Parks did not testify, it is
difficult to judge the credibility of Coxon 's testimony in this regard. I note, however, that
English is not Mr. Morales primary language and it is possible that he misinterpreted Parks's
statement of March 1998 to mean that he would be discharged for making safety complaints.
Morales also believes that he was harassed when Asarco treated him like a drug addict.
He testified that he never uses illegal drugs. Asarco does not allege that Morales uses drugs.
Asarco tested Morales for drugs in accordance with policies agreed to by the unions at the mine.
He was tested after his accident on August 8, 1998. Although I can understand why Morales
might be offended by these tests, the fact that these tests were taken does not help establish that
Asarco was retaliating against him for making the health complaint to MSHA. There has been
no showing that the-drug tests were taken in contravention of Asarco's standard policies and
procedures for drug testing.
Morales also generally alleges that he was disciplined more harshly than others at the
mine. Mr. Coxon testified that many Asarco employees have been disciplined for infractions
similar to Mr. Morales's. (Tr. 490-91). He stated that during the two years prior to the hearing
in this case, Asarco issued about 70 disciplinary letters each year for time off and discharge.
Morales called a number of witnesses on his behalf, but none of these witnesses testified
that Morales was terminated because of his health complaint to MSHA. Ben Barela, an officer
with the Steelworkers Union at the mine, testified. When he was asked ifhe had reason to
believe that Morales was terminated for his health complaint to MSHA, he replied "(n]ot to my
knowledge." (Tr. 123). Lennis Hunnicutt, chief steward for the Steelworkers, testified that he is
not sure that Morales had a sufficient understanding of English to safely work at the mine or to
understand Asarco's safety rules. (Tr.134). He does not believe that Morales should have been

669

terminated for driving up to Sanchez's truck. (Tr. 136). Frank.Urbano, a truck driver at the mine
who was on layoff status, testified that drivers did not always chock their trucks and that some
drivers have been in accidents without receiving any discipline. (Tr 149). He also testified that
Morales had a reputation in the pit of being an unsafe driver. (Tr. 156). Jerry Pefia, who had
been a truck driver in the pit, testified that management kept a close eye on Morales starting in
April 1997, but he did not know if that was because Morales had called MSHA or because
Morales was involved in a number safety infractions. (Tr. 162, 177). He stated that drivers
sometimes do not chock their trucks, especially on the graveyard shift. (Tr. 171). Miguel
Moreno, a former truck driver at the pit, testified that he did not believe that Morales was treated
differently by management than other truck drivers. (Tr. 192).
Randall Groce, another truck driver at the pit, testified that Morales had the reputation of
being an aggressive driver. (Tr. 304). He stated that some drivers thought Morales was unsafe
and wild when he drove his haul truck. (Tr. 309). Allen Auguello, who also works in the pit,
testified that drivers do not always put chocks under the wheels of haul trucks when they park
them. (Tr. 315). He also stated that Morales brought attention to himself because he was an
aggressive driver. (Tr. 320). He further stated that front line supervisors are not always
consistent when they discipline employees. (Tr. 325).
Although the testimony of Mr. Morales's witnesses generally supports his position that he
was closely watched by supervisors, it does not establish that he was closely watched because he
made his health complaint to MSHA. There is insufficient evidence on which to draw such an
inference. This testimony also establishes that discipline is not always consistent and that some
miners violate safety rules without being caught. But this evidence does not advance Morales's
case. I cannot infer from this evidence that there was a connection between Morales's MSHA
complaint and the enforcement of safety rules at the mine.
If I review the evidence presented in this case against the indicia of discriminatory intent
frequently relied upon by the Commission, I find that Mr. Morales did not establish that his
discharge was motivated in any part by his protected activity. It is clear that Mr. Parks had
knowledge of Mr. Morales's protected activity. The mine manager, Mr. Lakowski, testified that
he did not become aware that Morales had called MSHA with a health complaint until after he
was terminated from his employment at Asarco. (Tr. 214). Mr. Kalmi testified that he did not
know about Morales's health complaint to MSHA until the MSHA investigator arrived at the
mine to investigate Morales's discrimination complaint after he was discharged. (Tr. 387-88). I
accept their testimony, although I find that it was widely known among employees in the pit that
Mr. Morales called MSHA. Because Mr. Parks and front line supervisors in the pit had
knowledge of the complaint, I find that Asarco had knowledge of the protected activity.

Although Morales testified that Asarco supervisors displayed strong animosity towards
his protected activity, there is little other evidence to support his claim. The fact that individual
managers may have been annoyed with Morales is not sufficient to establish animosity towards
the protected activity. I dare say that every mine operator is annoyed when MSHA shows up. I
cannot draw an inference that Asarco went to the lengths described above to terminate Morales

670

because he made a health complaint to MSHA especially since MSHA did not issue any citations
as a result of his complaint. It is important to recognize that Morales had a lengthy disciplinary
record that started well before he made his complaint to MSHA.
Finally, there is little coincidence in time between the protected activity and the adverse
action. As stated above, I believe that it is possible for a mine operator to bide its time so it can
get rid of a miner who complains about safety or health conditions without leaving tracks. In this
case, however, there is insufficient evidence on which to draw such an inference. The two events
do not appear to be related. In any event, even if his health complaint to MSHA played some
part in Asarco's decision to terminate Morales, I find that Asarco established that it would have
terminated Morales for his unprotected activity alone based on his violations of the company's
safety and work rules, his accidents, and his absenteeism.

ill. ORDER
For the reasons set forth above, the complaint of discrimination filed by David Morales
against Asarco, Inc. under section 105(c) of the Mine Act is DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:

Mr. David Morales, 2300 West Ina Road #13101, Tucson, AZ 85741 (Certified Mail)
David Farber, Esq., Patton Boggs, 2550 M Street, NW, Washington, DC 20037-1350 (Certified
Mail)
Mr. Manny A. Rojas, Jr., 4750 South Campbell #710, Tucson, AZ 85714 (Certified Mail)

RWM

671

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303 - 844 - 3993/FAX 303-844-5268

May 12, 2000
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 98-121
A.C. No. 15-07201-03712

v.
C-2 Mine
HARLAN CUMBERLAND COAL CO.,
Respondent
DECISION

Appearances: Thomas A. Grooms, Esq.,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
H. Kent Hendrickson, Esq., Harlan, Kentucky,
for Respondent.
Before:

Judge Cetti

This case is before me upon a petition for assessment of civil penalty under § 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the "Mine Act" in
which the Secretary charged Harlan Cumberland Coal Company (Harlan) with a violation of a
mandatory safety standard 30 C.F.R. § 75.202(a).
The general issues before me are whether Harlan violated the cited standard as alleged in
the citation and, if so, the appropriate civil penalty to be assessed for the violation taking into
consideration the criteria in § 11 O(i) of the Mine Act.
The Mandatory Standard

The cited standard involved in this case is 30 C.F.R. § 75.202(a) which is a broadly
worded mandatory standard that reads as follows:
(a) The roof, face and ribs of areas where persons work or travel
shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock
bursts.
672

The Cited Condition or Practice

The 104(a) citation charges Harlan with an S&S violation of 30 C.F.R. § 75.202(a) for its
alleged failure to protect persons from the hazard of a coal burst from a pillar block while retreat
mining pillars. The citation charges the operator with moderate negligence for its failure to
prevent what some of the mine experts who testified agree was an unpredictable coal burst. The
citation reads as follows:
The coal ribs were not controlled to protect persons from the
hazards of a coal burst in the three rooms in Second Left (MMU005-0) off the Nine Right Panel, an active working section where
persons worked and traveled. On November 20, 1996, retreat
mining was started in the rooms and as the initial cut of coal was
taken from the middle of the No. 1 pillar block, a coal burst was
triggered. The coal burst damaged the coal ribs of all nine pillars
in the rooms, blowing in excess of 1,500 tons of coal into the room
entries and crosscuts. The blown coal injured six miners, two
fatally. The potential for a coal burst was known to the mine
operator, expecially (sic) when mining beneath areas of high
ground cover. The mine operator had made some adjustments to
the numbers of and size of the pillars in the rooms in the Second
Left section; however, the adjustments were not sufficient to
control the high ground pressures experienced by the active
working section before the coal burst occurred. This citation is
issued as a result ofMSHA's fatal accident investigation and the
the violation contril.Juted to the occurrence of the accident.
MSHA·charges Harlan with "moderate negligence" and proposes a penalty of$50,000.00.
Stipulations
1. The C-2 mine is a medium-sized underground coal mine producing 726,077 tons
during the relevant period which, combined with the additional production of 9,000 tons by the
controlling entity, results in an overall total production of less than one million tons during the
relevant period. (Joint Ex. 1).

2. The amount of the appropriate penalty, if any, is in issue but the proposed penalty
''will not put Respondent out of business."
3. The history of previous violations is shown on the computer printout received into
evidence as Government's Exhibit 1.

673

4. The operator demonstrated good faith in attempting to achieve rapid compliance after
notification of the alleged violation.

Background
The Harlan Cumberland Coal Company's C-2 mine is a medium-sized mine located near
Dione, Harlan County,_Kentucky where the operator is engaged in the mining of underground
coal. The C-2 mine employs a total of 55 miners and produces coal two shifts a day, six days a
week. Equipment maintenance is performed on a separate non-producing shift. The mine has an
active advancing unit and an active retreat pillar-extraction unit.
The mine is developed and serviced through three portals consisting of drift openings into
the Creech coal seam. The coal seam ranges in thickness from 42 to 96 inches. Overburden
above the mine varies in the mountainous terrain from under 100 feet to over 1,600 feet at the
deepest point under Black Mountain.

The Coal Burst
On November 20, 1996, there was an unpredicted coal burst in the 005-0 section located
in the Second Left panel off Nine Right off of the No. 3 East Main entries of the C-2 mine. The
overburden at the site of the accident was 1,420 feet. At the time of the coal burst, the foreman
and his crew of eight other miners in the retreat pillar unit were underground engaged in retreat
mining in the 005-0 section. Two of the miners sustained fatal injuries and four other miners in
the crew sustained varying degrees of injury.
At the time of the November 20, 1996, coal burst, an MSHA regular AAA Safety and
Health inspection was ongoing and the previous AAA MSHA inspection was completed less
than two months. earlier. It is undisputed that at the time of the accident Respondent was
following the min~'s MSHA approved roof-control plan. The mining method and procedure that
was being followed in the deep cover area where the coal burst occurred had been approved by
MSHA as well as by the state regulatory mining agency, the Kentucky Pepartment of Mines and
Minerals. There was also an ongoing inspection by state inspectors at the time of the coal burst.
On November 20, 1996·, the day of the coal burst, the retreat mining day shift crew,
consisting of eight miners and their foreman, arrived at 005-0 section about 6:25 a.m. They were
met by Ernest Boggs, the maintenance foreman, who had conducted the pre-shift examination
earlier that morning. Mr. Boggs reported to foreman Darrell Lewis that nothing unusual had
been found during his pre-shift examination. Instructions were issued to the crews and
production commenced about 6:30 a.m. Successive cuts were advanced in all three rooms
without incident and the room entries and crosscuts were connected to the gob. The continuous
mining machine was then moved to the No. 1 room pillar to take the initial cut beginning pillar
extraction in that area. It was the practice to extract room pillars first, followed by adjacent entry
pillars. This initial cut had advanced into room pillar No. 1 approximately 15 feet when at 2:08
674

p.m. it triggered the coal burst. The burst damaged the ribs of all nine room pillars, over 1,500
tons of coal was blown into the rooms and room crosscuts and, as previously stated, the burst
resulted in the death of two of the retreat section mining crew and the injury of four other miners
on that crew. The No. 2 and 3 pillars were damaged, particularly along the gob side. The timber
set at the mouth of the last open crosscut between numbers 1 and 2 rooms were broken and the
roof in that area was damaged. Practically all of the test holes which had been drilled during the
advance mining cycles contained cracks from 39 to 78 inches into its roof as a result of the force
of the coal burst.
There was very little dispute with the conclusion of the MSHA accident investigators that
the presence of thick sandstone layers above and below the coal seam enhance the ability of the
coal pillars in the area of the burst to withstand high stress and store energy. As room pillar No.
1 was mined, much of its load was released and transferred to the already stressed adjacent
pillars. It was this sudden pressure increase on the adjacent pillars that was sufficient to cause
failure of coal near or into the core of these pillars resulting in this massive, unpredicted coal
burst.
MSHA and the Kentucky Department of Mines and Minerals, as part of the investigation,
conducted interviews of persons with knowledge of the facts and circumstances surrounding the
coal burst. The parties offered into evidence as joint exhibits Nos. 2 through 26, the statements
taken by MSHA. These joint exhibits include the statements MSHA took from the seven
surviving members of the crew that were engaged in retreat mining in section 005-0 at the time
of the coal burst, namely:
Jim Carr
David Harris
John Carroll
Darrell Lewis
Ron Painter
Mike Pennington
Mike Pacholewski

Continuous Mining Machine Operator
(Joint Ex. 27)
Continuous Mining Machine Operator
(Joint Ex. 13)
Roof Bolter/Scoop Operator
(Joint Ex. 8)
Foreman (Joint Ex. 16)
Shuttle Car Operator (Joint Ex. 22)
Shuttle Car Operator (Joint Ex. 24)
Repairman (Joint Ex. 21)

In general it can be stated that the ground conditions on the 005-0 section prior to the coal
burst were thought to be "normal" by the miners working in the section. These miners asserted
that there were no "signs of abnormal pressure evident" before the coal burst. (Govt. 's Ex. 2 pg.
10). The MSHA Report of Investigation, Govt.' s Ex. 2, under heading "Summary and
Conclusion" sub-heading "Cause of Accident" at pg. 11 states:

675

Cause of the Accident ·
The investigation team concluded that the increasing size of the
frontal gob, the existence of a side gob, and increasing depth of
overburden (in excess of 1,400 feet), resulted in high stresses and
pressures on the coal pillars as they were extracted . . The side gob
had nai:rowed to approximately 130 feet wide adjacent to the
accident site. The narrowness of the side gob may have restricted
caving, contributing to excessive loading of the pillar line.
The presence of thick sandstone layers above and below the Creech
coal seam enhanced the ability of the coal pillars to withstand high
stresses and store energy. As room pillar No. 1 was mined, much
of its load was released and transferred to the already highly
stressed adjacent pillars. This sudden pressure increase on the
adjacent pillars was sufficient to cause failure of coal near or into
the core of these pillars, and resulted in the burst.
Curtiss Vance, who issued the citation, was the first witness called by MSHA. In
addition to being a Federal Coal Mine Inspector, he is a substitute MSHA investigator. He
testified that investigators are assigned to go out to the mine sites where fatalities or accidents
have occurred and "investigate them and come up with a conclusion as to the cause of the
accident, and any violations that we may find of the law." He participated in the investigation of
the coal burst accident and in the preparation of the MSHA accident investigation report which
was admitted into evidence as Government's Ex. 2.
Asked as to the basis for his issuance of the citation, Vance read from the citation "The
coal ribs were not controlled to protect persons from the hazards of a coal burst in the three
rooms in the Secqnd Left off of the Nine Right panel, an active working section where persons
work and travel."
When questioned further on this point the witness testified, over objection by counsel for
Respondent, that it was conclu~ed by the investigator "that the operator had knowledge for a
potential coal burst" especially when mining underneath high cover. He testified to better control
the coal ribs so as to protect persons from the hazards of a coal burst in the area where the
accident occurred, the operator did change his usual mining procedure. The operator "adjusted
the mining of the rooms off the panels from five entries down to three entries" to try to better
control the ribs, but these adjustments made by the operator were not sufficient to prevent the
coal burst. (Tr. 45-46). This obvious conclusion was reached after the coal burst occurred.
Vance also testified that the MSHA investigation revealed that Harlan was following the mines'
MSHA approved roof-control plan at the time of the coal burst.

676

On cross-examination Mr. Vance conceded that "you want good caving" to take the
weight of the overburden off the pillars that you're trying to extract so as to reduce the weight
that will be transferred to the remaining pillars and that with good caving you typically hear
popping and cracking of the roof during the shift and sometimes booming as the top falls. Such
sounds indicates you're getting good caving.
Mr. George Karabin was MSHA's only other witness. Mr. Karabin is a supervisory civil
engineer with MSHA's Pittsburgh Safety and Health Technology Center in the Roof Control
Division. He has been working in the area of roof control at that center for 28 years. He is a
registered professional engineer in the State of Pennsylvania. Since the early l 980's his main
focus has been to look at mine design aspects that contribute to roof- or ground-control problems.
(Tr. 66).
Mr. Karabin testified that "deep cover causes pressure on the pillar proportionate to the
depth of the cover, and it causes ground control problems." (Tr. 133). He defined a coal burst or
bump as "where a coal pillar from excess pressure suddenly and violently fails and expels coal
material from the rib into the opening." (Tr. 60). He stated the coal burst results from "excess
pressure. Vertical pressure squeezes the pillar to a point where it can no longer handle that
pressure. The strength of the coal pillar is exceeded." He further stated "They [pillars] don't fail
in a slow controlled manner. Rather they store energy, perform very little and then suddenly
explode." (Tr. 62).
Mr. Karabin was of the opinion that the massive sandstone layer in the roof of the mine
contributed to the pressure on the pillars in the mine and to the coal burst which occurred on
November 20, 1996. He stated that because of the thickness of the sandstone layer it tended to
bend rather than break and cave in. Consequently, the caving which would relieve the pressure
on the pillars at the face occurred only in the shale, leaving the unbroken sandstone to continue to
put pressure on the pillars in the active mining area. (Tr. 120-122). He explained the sandstone
did not cave well because of its thickness.
Mr. Karabin also testified that areas of the underground mine adjacent to the fatal coal
burst site included the property line representing the end of the coal seam in which Harlan had
ownership rights. This included a "point" or "comer" along this property line where it formed a
right angle, angling to within 240 feet of the face where the coal burst occurred. (Tr. 87-90). He
testified "the property line itself controls or confines the geometry of the mined area" since
Harlan can't mine outside that property line.
Mr. Karabin testified that the Accident Investigation Team found that the comer played a
"role in the accident in the burst itself. Essentially, what it did was restricted cave-in directly
adjacent to the last set of rooms that were developed." Mr. Karabin stated that by restricting the
caving this "point" or "comer" shifted the overburden pressures to the pillars where the burst
occurred.

677

Mr. Karabin testified that prior to the coal burst of November 1996, there had been four
incidents, in different areas of the mine, where Harlan had a ground-control problem that would
indicate that there was a potentiality of a coal burst in areas of deep cover. He stated that "deep
cover" is generally an area that has a depth greater than 1,000 feet.

Mr. Karabin then briefly described the history of four ground-control incidents that
occurred at the mine under deep cover during the six years prior to the November 20, 1996, coal
burst. The first event was a non-injury coal burst on January 11, 1990. It occurred in the Second
Right panel off the No. 2 East main. There was no damage to equipment and no injury to any
person. The second event was a "squeeze" in July 1994 in the Right Eight section. This squeeze
was later described by other mining experts as a floor squeeze. The third incident was a broad
area of roof deterioration that occurred in May, June or July 1996 in the First Left off No. 3 East
main that was resolved by Harlan, not mining the area and thus abandoning 29 pillars in the area.
The fourth was a "squeeze" or "pressure point" in the First Left off Nine Right panel in
September 1996. That area is about 1,000 feet from the area where the coal burst of November
20, 1996 occurred.
Without being specific, Mr. Karabin asserted that Harlan should have changed its mining
method when retreat mining under deep cover. Mr. Karabin conceded, however, that in the
Second Left off Nine Right panel, Harlan did make a change in its usual mining method from
driving five entries into the barrier pillar to driving three. He indicated this change was a good
thing that would increase stability but that it was insufficient. He testified:
I believe had they mined five rooms, the burst would have
occurred. It would probably have covered a broader area, since
more rooms had been developed. But, the change from five rooms
to three rooms would not produce a significant enough increase in
stability to prevent the burst from occurring. (Tr. 165-166).
Mr. Karabin conceded th::).t by the time Harlan got to Nine Right there were several mine
plans floating around: Dr. Newman had a plan; Dr. Unrug had a plan; and Mr. Kaiser had a plan.
There were "several things" offered to the company at that time insofar as to going forward.
Harlan chose to go with Mr. Kaiser's plan which involved driving perpendicular off Nine Right.
With hindsight it is now obvious that the plan "did not work out." A massive coal burst occurred
on November 2o•h. At the hearing Dr. Karabin was asked if, in his opinion, one of the other
mining plans had been selected, would Harlan have been able to successfully mine the area in
question i.e. without a massive coal burst such as the one that occurred on November 20th. Dr.
Karabin replied "Obviously, we have no way of knowing, they were not implemented." (Tr. 218
Lines 2, 3).
On cross-examination, Mr. Karabin stated that it was the four events described above,
particularly the January 1960 non-injury coal burst that first put the operator on notice that the
mine's Creech coal seam was capable of bursting when under deep cover. This non-injury, no-

678

property damage coal burst was almost a mile from the site of the coal burst of November 20,
1996. Mr. Karabin stated that was the first indication to the operator that the coal seam was
capable of bursting. He went on to testify that because the operator was aware ofthis and of the
increasing pressure under deeper cover, Harlan made adjustments in its mining procedure to
better control the ground in the 005-0 section. He conceded that this modification of the mining
procedure under deep cover was a good thing but was not effective in preventing that November
1996 coal burst. Without giving any specifics or details as to his reasoning, Mr. Karabin asserted
that Harlan should have been able to determine that this modification would be inadequate.
Dr. Konstantine Unrug is a professor of mining engineering at the University of
Kentucky. He has had the position for the last 20 years. During that time, his interest and
research was focused on strata contro~ of coal fields. At the university he is responsible for mine
design, underground construction and rock mechanics. He has dealt with the presence of high
pressure and high load conditions in deep mine-construction projects.
Dr. Unrug stated that pressure exists in all mines. In destressing to get pressure release,
noises occur which are mainly thumping of different intensities. In stiffer material the sound can
be stronger than in material which is soft. In trying to get caving you expect to hear popping,
crackling and thumping. The absence of such noise is an indication that the coal pillar is storing
energy. It is the absence of destressing noise rather than the existence of such noise that would
be cause for concern. A coal burst occurs when the stored elastic energy in the coal is violently
released by ejection of the coal matter to the surrounding space. (Tr. 297).
In 1994 when the "squeeze" incident occurred, Dr. Unrug was called to the mine as a
consultant by Harlan's mine manager and the mine engineer. Dr. Unrug testified that his
inspection and investigation indicated the 1994 incident was a "floor heave", that it was not a
coal burst. The floor of the mine actually heaved up. Dr. Unrug explained: "A floor heave is a
type of failure·where the floor is the weakest element of the three components which are the mine
roof, the pillar, and the floor." Dr. Unrug explained that the 1994 floor heave was caused by the
failure of a small seam of coal which was about eight or nine inches below the surface of the
floor. Dr. Unrug again emphasized that this 1994 incident was a "floor heave" and was not a
"coal burst." He explained a "coal burst is an event in which the stored elastic energy in the coal
is violently released by ~jection of coal matter to the surrounding space." (Tr. 298). I credit Dr.
Unrug' s testimony and find this 1994 incident was not a "coal burst." It was a floor heave that
was located approximately 2,000 feet from the area where the November 1996 coal burst
occurred. (Tr. 296). Dr. Unrug testified that the occurrence of the 1994 floor heave was not an
indication that a coal burst would occur at a later date. (Tr. 331).
It was Dr. Unrug's opinion that none of the ground control incidents described by Mr.
Karabin were indicative of a future coal burst. Based on the testimony of Dr. Unrug, I find that
the four prior incidents of ground control did not indicate that in the future it was likely there
would be a coal burst such as the one that occurred on November 20, 1996 while Harlan was
engaged in retreat mining.

679

It is undisputed that Harlan was following the approved mining procedure for pillar
extraction set forth in the mine's roof-control plan. This mine plan under 30 C.F.R., MSHA
§ 75.223(d) requires the district manager to review the plan every six months. "The goal of this
mine plan approval and adoption process is a mine specific plan with provisions understood by
both the Secretary and the operator and with which they are in full accord." Once the plan is
approved and adopted, these provisions are enforceable at the mine as mandatory safety
standards - cf Jim Walter Resources, Inc. 9 FMSHRC at 907.

Dr. David A. Newman, the second mining expert called by Harlan, is a registered
professional engineer in Kentucky, West Virginia and Indiana and is a registered geologist in
Kentucky. From 1984 to 1988 he was an Assistant Professor of Mining Engineering at the
University of Kentucky during which time his focus was on yielding pillars. (Tr. 99). His area
of expertise is rock mechanics, with particular concentration on underground stability. (Tr. 398).
As a mine expert and consultant, Dr. Newman was contacted by Harlan to go underground and
inspect the 2-C mine. He inspected the same area Dr. Unrug inspected which included the 1994
floor heave described by Dr. Unrug. He testified the floor heave "really has nothing to do with
the coal burst of November 1996 and has everything to do with the weakness of the floor." (Tr.
406-407). Prior to the coal burst of November 1996, Dr. Newman was consulted on other
mining problems by Harlan but states he was not consulted and made no recommendation with
respect to the retreat mining of the Second Left off Nine Right. When he did visit the area after
the coal burst and was told of Mr. Kaiser's recommendations to come off Nine Right and mine
perpendicular to Nine Right, Dr. Newman had no problem with Mr. Kaiser's proposal.
With respect to the four ground-control incidents Harlan had in different areas of the
mine during the past six years, Dr. Newman testified that each of those four incidents was unique
to the area where they occurred and were not indicative that a coal burst such as the one that
occurred on November 20, 1996, would happen. (Tr. 421-426, 432-434).
Dr. Newman testified that Harlan never refused any of the recommendations he made that
would affect safety of the miners. He added that in one area where he made recommendations,
Harlan chose to abandon (not mine) the area. (Tr. 481).
When Dr. Newman was asked if he agreed with the MSHA assumption that the operator
should have known and have been aware of a likely coal burst such as occurred on November 20,
1996, he replied as follows:
I disagree. The thing I would rely upon most heavily for that is the
men who were in the mine, who had a better feel than I would for
the typical noises on that section, for the typical behavior of the
pillars, for the typical behavior of the roof, and who in other areas
of the mine, did abandon areas that they found - where they did
believe it to be unsafe. I would more rely upon their habitual feel
for what the conditions would be as more of an indicator of a
680

potential for burst. I mean, they saw it every shift, every day, were
familiar, as is born out in the sworn testimonies, familiar with the
behavior of the key cut, familiar with the behavior and immediately after the key cut and familiar to the behavior of the typical pillar
recovery. (Tr. 434-435).

FURTHER DISCUSSION, FINDINGS AND CONCLUSION
The Secretary argues that looking back almost six years from January 1990 to November 20, 1996, there were four incidents in different areas of the mine where Harlan encountered
ground-control problems under deep cover exceeding 1,000 feet and Harlan, therefore, should
have been aware of the potential for a coal burst such as occurred on November 20, 1996, in the
Second Left off the Nine Right panel. Because of these four ground-control incidents under deep
cover the MSHA now argues that Harlan should have changed its method of retreat mining the
pillars in the Second Left MMU0050 off the Nine Right panel so as to prevent a potential coal
burst such as the one that occurred November 20, 1996.
On evaluation of the expert testimony presented at the hearing, I credit the testimony of
Dr. Unrug and David Alan Newman. Based on testimony of these experts, I find the only prior
coal burst at the C-2 mine was the non-injury, no equipment damaged coal burst that occurred in
January 1990. With respect to that incident Dr. Unrug testified a coal burst occurring in January
1990 with no coal burst in 1991 would not lead one to predict there would be another coal burst
one mile away, six years later. The reason for this Dr. Newman explained is the "differences in
geological composition" between different areas in the mine. He states that in the carboniferous
strata of the mine "changes are rapid" in the geological composition. (Tr. 329).
Dr. Uirrug_ stated the differences in geologic composition in a mine can be illustrated by
the difference in ge~logical composition that one sees as one drives through Kentucky viewing
the difference in geological composition of strata along the roadway highwalls. (Tr. 329-330).
Different coal strengths exist in different parts of the mine. (Tr. 336). This is why a coal burst
occurring in 1990, with no coal bursts in 1991, would not lead one to predict that there would be
another, one mile away, six years in the future. (Tr. 329).
Hindsight alone will not support the citation. Hindsight is improperly judging what
should have been done in light of what ultimately happened, not in light of the circumstances at
the time. The Commission has consistently held with respect to this broadly worded standard, 30
C.F.R. § 75.202(a) that "the adequacy of particular roof support or other control must be
measured against the test of whether the support or control is what a reasonably prudent person,
familiar with the mining industry and protective purpose of the standard, would have provided in
order to meet the protection intended by the standard." Canon Coal Co., 9 FMSHRC 667, 668
(Apr. 1987) (cited in Helen Mining Co., 10 FMSHRC 1672, 1675 (Dec. 1988) and in Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 1998).

681

The Petitioner has the burden of proof. Harlan was mining the 005-0 section in
compliance with its approved mine plan. Upon review, an evaluation of all the evidence, I find
that a preponderance of the evidence of record fails to establish that Harlan did not provide what
a reasonable, prudent person, familiar with the industry and the protective purpose of the
standard, would have provided in light of the known facts and circumstances that existed prior to
the November 20, 1996, coal burst. Consequently, the cited standard was not violated. The
citation should therefore be vacated.

ORDER
Citation No. 4622390 is VACATED and the proposed $50,000.00 penalty is set aside.

CLA~tF.J_:;;/t,

.. I

c_vtr

Cetti
Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-20f, Nashville, TN 37215-2862 (Certified Mail)
H. Kent Hendrickson, Esq., RICE & HENDRICKSON, Woodland Hills, Drawer 980, Harlan,
KY 40831-0980 (Certified Mail)
Marco M. Rajkovich, Jr., Esq., WYATT, TARRANT & COMBS, 250 West Main Street, Suite
1700, Lexington, KY 40507 (Certified Mail)

/sh

682

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006..:3867
T~lephone No.:

202-653-5454
Telecopier No.: 202-653-5030

May 18, 2000
KYBER COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket Nos. KENT 94-574-R
through
KENT 94-797-R
and
KENT 94-862-R

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

CNIL PENALTY PROCEEDINGS
Docket No. KENT 95-272
A. C. No. 15-16856-03536
Docket No. KENT 95-276
A. C. No. 15-16856-03537
Docket No. KENT 95-280
A. C. No. 15-16856-03538
Docket No. KENT 95-284
A. C. No. 15-16856-03539
Docket No. KENT 95-288
A. C. No. 15-16856-03540
Docket No. KENT 95-689
A. C. No. 15-16856-03544
Docket No. KENT 95-692
A. C. No. 15-16856-03542
Docket No. KENT 95-697
A. C. No. 15-16856-03547
683

Docket No. KENT 95-701
A. C. No. 15-16856-03545
Docket No. KENT 95-707
A. C. No. 15-16856-03548
Docket No. KENT 95-713
A. C. No. 15-16856-03543
Docket No. KENT 95-715
A. C. No. 15-16856-03546
Docket No. KENT 95-776
A. C. No. 15-16856-03549
Elmo No. 5 Mine
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 95-242
A. C. No. 15-16856-03536
Docket No. KENT 95-243
A. C. No. 15-16856-03537

V.

A A & W COALS, INCORPORATED,
Respondent

Docket No. KENT 95-244
A. C. No. 15-16856-03538
Docket No. KENT 95-245
A. C. No. 15-16856-03539
Docket No. KENT 95-246
A. C. No. 15-16856-03540
Docket No. KENT 95-651
A. C. No. 15-16856-03542
Docket No. KENT 95-652
A. C. No. 15-16856-03543
Docket No. KENT 95-653
A. C. No. 15-16856-03544

684

Docket No. KENT 95-654
A. C. No. 15-16856-03545
Docket No. KENT 95-655
A. C. No. 15-16856-03546
Docket No. KENT 95-656
A. C. No. 15-16856-03547
Docket No. KENT 95-657
A. C. No. 15-16856-03548
Docket No. KENT 95-740
A. C. No. 15-16856-03549
Elmo No. 5 Mine

DECISION APPROVING SETTLEMENT
ORDER TO PAY
ORDER TO VACATE
ORDER OF DISMISSAL
Appearances:

Before:

Judge Barbour

In the civil penalty cases, the Secretary of Labor, on behalf of the Mine Safety and Health
Administration, seeks the assessment of civil penalties against Kyber Coal Company (Kyber) and
A &W Coal Company (A &W) for numerous alleged violations of mandatory safety standards
for coal mines found.in parts 48, 75 and 77 of Title 30 C.F.R. The citations and orders in which
the violations are alleged were issued jointly to Berwind Natural Resources Corporation
(Berwind), Kentucky Berwind Land Company (Kentucky Berwind), Jesse Branch Coal Company
(Jesse Branch), Kyber and A &W. All of the companies, except A & W, contested the validity of
the citations and orders onjurisdi~tional grounds. To resolve the questions of liability, I
bifurcated the contest and civil penalty proceedings and first addressed the jurisdictional issues.
In subsequent proceedings, I found that of the four contestants only Kyber was subject to Mine
Act jurisdiction (Berwind Natural Resources Corporation. et al., 18 FMSHRC 202 (February
1996)).
My decision was appealed to the Commission. Although A & W did not contest
jurisdiction, I stayed the civil penalty proceedings against A &W pending the Commission's
decision. A &W and the other companies were charged with the same violations, and I agreed
with A & W that it was necessary to know which party or parties were potentially responsible for
the alleged violations before ruling on the merits of the violations and before assessing penalties
685

for those that were found to have occurred (Order Staying Proceedings (April 15, 1996)).
On appeal, a majority of the Commission held that Berwind, Kentucky Berwind and Jesse
Branch were not operators, but that Kyber was (Berwind Natural Resources Corporations. et al.,
21FMSHRC 1284 (December 1999)) abd the Commission remanded the cases for further
proceedings. Following the remand, I dissolved the stay in the A & W cases and ordered counsels
for the Secretary, Kyber and A &W to confer regarding (1) all disputed issues of fact and law, (2)
matters that could be the subject of stipulation, (3) the amount of the proposed penalties, and (4)
possible settlement. In addition, I scheduled a preh earing conference of record for April 18,
2000, in order for coilnsels to report regarding their discussions and their preparations for trial.
Immediately prior to the start of the prehearing conference, counsel for the Secretary
advised me that a settlement offer had been presented to counsels for Kyber and A & W (Tr. 9).
Later that morning counsels advised me that a settlement had been agreed to for all of th e
v iolations, citations, and orders involved in the cases and that counsels were prepared to present
the settlement on the record. I opened the record and counsel for the Secretary stated the terms of
the settlement as well as bases for approving the settlement (Tr. 11 -14). Counsels for Kyber and
A & W stated that they concurred (Tr. 14-16). Counsel for the Secretary agreed to submit a
written motion setting forth the terms of the settlement (Tr. 15-16). In addition, counsel for
Kyber agreed that Kyber would withdraw its notices of contest and that the Secretary would
make this representation in the settlement motion (Tr. 14-15). At the close of the conference, I
advised the parties that I would approve the settlement, and that I would issue a decision
approving the settlement upon receipt of the written settlement motion.
On May 10, 2000, the Secretary filed the written motion1• The proposed settlement is as
follows:

Kyber Coal Comp any
Docket No. KENT 95-776
Citation/ ·
Order No.

Date

30 C.F.R.

Assessment

Settlement

4010541
4010542
4010543
4010544
4010545
4010546
4010547
4010582
4010583

03/24/94
03/22/94
03/24/94
03/22/94
03/24/94
03/22/94
03/24/94
03/22/94
03/24/94

75.370(a)(l)
75.360(b)(1)
75.1702-1
75.403
75.321
75.360(b)(l)
75.364(b)(2)
75.364(a)(l )
75.442(a)(4)

$50,000
$40,000
$50,000
$30,000
$50,000
$40,000
$40,000
$20,000
$20,000

$5,500
$5,500
$5,500
$3,500
$5,500
$5,500
$4,000
$2,500
$2,500

1

The written settlement motion is slightly different than the motion presented on the
record. The parties orally advise that the written settlement represents their final agreement.
686

A A & W Coal Companl'.,
KENT 95-740

4010541
4010542
4010543
4010544
4010545
4010546
4010547
4010582
4010583

03/24/94
03/22/94
03/24/94
03/22/94 .
03/24/94
03/22/94
03/24/94
03/22/94
03/24/94

75.370(a)(l)
75.360(b)(l)
75.1702-1
75.403
75.321 .
75.360(b)(l)
75.364(b)(2)
75.364(a)(l)
75.442(a)(4)

$50,000
$40,000
$50,000
$30,000
$50,000
$40,000
$40,000
$20,000
$20,000

$10,000
$10,000
$10,000
$7,500
$10,000
$10,000
$7,500
$5,000
$5,000

With regard to the above-listed citations and orders which were issued in conjunction
with an accident where a miner was fatally injured, the Secretary represents that reductions are
warranted for Kyber Coal Company because Kyber was a small operator and has left the mining
business. In addition, Kyber had no history of prior violation, and its contract mine operator, A
A &W, had a good history of prior violations.
With respect to A A & W, the Secretary states that A A & W has suffered substantial
adverse business losses when its mine was closed as a result of the accident that triggered the
subject citations and orders and that A A & W's size is very small with only 20 miners employed
at the mine. Finally, the Secretary states that A & W's negligence was less than originally
thought.
With regard to the remaining violations for Kyber contained in Docket Nos. KENT 95272, KENT 9?-276, KENT 95-280, KENT 95-284, KENT 95-288, KENT 95-689, KENT 95692, KENT 95-697, KENT 95-701, KENT 95-707, KENT 95-713, KENT 95-715, and for A A
& W contained in Docket Nos. KENT 95-242, KENT 95-243, KENT 95-244, KENT 95-245,
KENT 95-246, KENT 95-651, KENT 95-652, KENT 95-653, KENT 95-654, KENT 95-655,
KENT 95-656, KENT 95-657, the Secretary advises that she is exercising her prosecutorial
discretion by agreeing to vacate these violations and to withdraw the penalty petitions. The
violations involved in these matters were issued and did not contribute to the fatality that resulted
from the accident.

Finally, the Secretary states that the Kyber agrees to withdraw all of its notices of contest
of citations and orders that it filed and which are contained in Docket Nos. KENT 94-574-R
through KENT 94-797-R and KENT 94-862-R.
After review and consideration of the pleadings, arguments and submission in support of
the settlement motion, I find the proposed settlement is reasonable and in the public interest.
Pursuant to 29 C.F.R. § 2700.31, the motion is GRANTED, and the settlement is APPROVED.
687

ORPER
Kyber Coal Company IS ORDERED to pay a civil penalty of $40,000 in satisfaction of
the violations contained in Docket No. KENT 95-776. Payment is to be made to MSHA within
45 days of the date of this proceeding. Also, within the same 45 days the Secretary IS
ORDERED to vacate all the citations and orders contained in Docket Nos. KENT 95-272,
KENT 95-276, KENT 95-280, KENT 95-284, KENT 95-288, KENT 95-689, KENT 95-692,
KENT 95-697, KENT 95-701, KENT 95-707, KENT 95-713, KENT 95-715. Upon receipt of
full payment and vacation of the citations and orders, these proceedings are DISMISSED.
A A & W Coals, Inc., IS ORDERED to pay a civil penalty of $75,000 in satisfaction of
the violations contained in Docket No. KENT 95-740. Payment is to be made in three
installments of $25,000 each on June 1, 2000, June I, 2001 and June 1, 2002. Also, within 45
days the Secretary IS ORDERED to vacate all the citations and orders contained in Docket Nos.
KENT 95-242, KENT 95-243, KENT 95-244, KENT 95-245, KENT 95-246, KENT 95-651,
KENT 95-652, KENT 95-653, KENT 95-654, KENT 95-655, KENT 95-656, KENT 95-657.
Upon receipt of full payment and vacation of the citations and orders, these proceedings are
DISMISSED.
It is further ORDERED that the IK.yber's motion to withdraw its notices of contest filed
in Docket Nos. KENT 94-574-R through KENT 94-797-R and KENT 94-862-R is GRANTED
and that these cases are DISMISSED.

y(µ'/(!f,~ ~ ?--DavidF~~

Chief Administrative Law Judge
Distribution: (Certified Mail)
Mark Malecki, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215
Robert I. Cusick, Esq., Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, 1700 Lexington
Financial Center, Lexington, KY 40507
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring LLP, 1001 Pennsylvania
Avenue, N.W., Washington, D. C. 20004
Michael Heenan, Esq., William Doran, Esq., Smith, Heenan & Althen, 1110 Vermont Avenue,
N.W., Suite 400, Washington, DC 20005-3593
/wd
688

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

May 18, 2000
CIVIL PENALTY PROCEEDINGS

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

Docket No. PENN 94-23
A. C. No. 36-05466-03980

V.

Docket No. PENN 94-166
A.C. No. 36-05466-03990

CYPRUS EMERALD RESOURCES,
Respondent

Emerald No. I Mine

DECISION APPROVING SETTLEMENT ON REMAND
Before:

Judge Hodgdon

This case is before me on remand from the Commission to assess a penalty for the only
citation remaining in the case. Cyprus Emerald Resources Corp., 22 FMSHRC 285 (March
2000). The Secretary, by counsel, has filed a motion to approve a settlement agreement. A
reduction in penalty from $3,000.00 to $1,000.00 is proposed.
Having considered the representations and documentation submitted, I conclude that the
proffered settlement is appropriate under the criteria set forth in section 11 O(i) of the Act,
30 U.S.C. § 820(i). Accordingly, the motion for approval of settlement is GRANTED and the
Respondent is ORDERED TO PAY a penalty of$1,000.00 within 30 days of the date of this
order.
·

J.~~-

T. Todd Hodg~~:/"""
Administrative Law Judge

Distribution:
Myrna A. Butkovitz, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
170 S. Independence Mall West, Suite 630 East, Philadelphia, PA 19106-3306
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant Street, 201h Floor,
Pittsburgh, PA 15219-1410

/fb
689

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

May24,2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 99-222
A. C. No. 36-00958-04218
Docket No. PENN 99-232
A. C. No. 36-00958-04220

EIGHTY-FOUR MINING COMPANY,
Respondent

Mine No. 84
DECISION
Appearances: Linda M. Henry, Esq., Office of the Solicitor, U. S. Department of Labor,
Philadelphia, Pennsylvania for Petitioner;
Elizabeth S. Chamberlin, Esq., CONSOL Inc., Pittsburgh, Pennsylvania for
Respondent.
Before:

Judge Weisberger
Statement of the Case

These cases are before me upon Petitions for Assessment of Civil Penalty, filed by the
Secretary of Labor·(Secretary) seeking the imposition of a civil penalties against Eighty-Four
Mining Company ("Eighty-Four'') based upon citations and orders issued to Eighty-Four alleging
violations of various mandatory standards set forth in Title 30 of the Code of Federal
Regulations. Pursuant to notice, the cases were heard in Pittsburgh, Pennsylvania on January 25
through 27, 2000. On March 27, 2000, the secretary filed a post-hearing argument and proposed
findings of fact. On March 29, 2000, Respondent filed a post-hearing brief and findings of fact. 1

I. The Secretary's Evidence
On March 10, 1999, Inspector James Dickey inspected the Eighty-Four Mine's 6 North
1

At the conclusion of the hearing, the parties were informed by the undersigned that,
subsequent to the filing of proposed findings of fact, the parties shall file responses to other sides'
proposed findi~gs of fact. To date, neither party filed any response.
690

Section. Eighty-Four used a continuous miner and a three entry system to mine coal from the
Pittsburgh seam in the section. The section was mining coal during Dickey's inspection, and the
had produced coal on the previous shift.
Dickey walked through all entries and crosscuts of the 6 North section during his
inspection. He observed "fine, dry and coarse coal accumulations over the entire section." (Tr. I.
77)2 fu this connection he testified that "[I']ve been inspecting for a number of years and this is
probably some of the worst accumulations I've ever observed on a mine section." (Tr. I. 160)
Miner walkaround and Eighty-Four employee Dan Clark also observed coal accumulations in all
three entries.
Dickey measured the accumulations with a ruler and tape measure. He indicated that the
accumulations in the No. l entry were 1 to 3 Yz inches deep for a distance in excess of 120 feet in
length. The accumulations covered an area of the mine floor 12 feet wide.
Dickey also observed fine and coarse coal along both ribs of the crosscut from No. 1 to
No. 2 entries. He observed a pile of coal at the No. 1 entry side of this crosscut. He measured
the pile as 5 to 6 inches deep, and 24 inches wide by 16 feet in length.
The accumulations along the inby rib measured 14 to 20 inches deep by 24 inches wide
by-46 feet in length. Dickey also measured accumulations of coal along the outby rib. They
measured 3 Yz inches deep and 8 to 11 inches wide for a distance of27 feet. After that point, the
coal measured 15 inches deep by 8 inches wide for a distance of22 feet.
Dickey observed a pile of coal 20 inches deep, 35 inches wide, and 5 feet in length where
the No. 64 Yz crosscut had holed through to the No. 2 entry. He observed another pile of coal 20
inches deep, 5 feet wide, and 6 Yz feet long at the outby comer of a 12 foot deep notch mined into
the rib of the No. 2 entry.
Dickey observed a notch in this area that had coal along both ribs measuring 24 inches
d~ep by 35 inches wide. Also, coal measuring 4 to 6 inches deep covered the entire floor of this
notch.
fu the No. 2 entry, Dickey observed an accumulation of coal which measured 3 to 14
inches deep along the left rib for a distance of 140 feet. He also observed accumulations along
the right rib which he measured as 14 inches deep by 20 inches wide, and 8 to 20 inches deep by
12 inches wide for the entire length of the entry. .This coal was dry to the touch. He also
observed a pile of coal which he measured as 24 inches deep, 5 feet wide, and 16 feet in length at
the mouth of the No. 2 entry. The coal was dry to the touch.

2

Tr. I. refers to the transcript of the hearing held January 25; Tr. II. to the transcript of the
hearing held January 26, and Tr. III. to the transcript of the hearing held January 27, 2000.

691

Outby the crosscut in the No. 2 entry, Dickey observed accumulations which measured 4
to 6 inches deep, 6 inches wide, and 38 feet in length. Accumulations measured 15 inches deep,
15 inches wide, and 6 feet in length along the left rib, and 8 to 10 inches deep, and 12 inches
wide along the right rib. They extended for a distance of over 100 feet. This coal was dry to the
touch.
Dickey observed coal along the inby rib of the crosscut from No. 2 to No. 3 entry. He
measured this coal as 14 inches deep by 20 inches wide for a distance of 7 feet, and 10 to 12
inches deep for a distance of 20 feet. He observed coal for a distance of 20 feet along the outby
rib that was 10 to 12 inches deep and 20 inches wide. This coal was both damp and dry.
Along the left rib of the No. 3 entry, Dickey observed coal which measured 3 to 8 inches
deep, and 12 inches wide for a distance of 92 feet. In a notch along this rib, he measured coal 18
to 20 inches deep, 15 inches wide, and 6 feet in length. This coal was damp by observation and
touch.
Along the inby rib of the No. 64 crosscut, Dickey observed coal measuring 8 inches deep,
12 inches wide, for a distance of 46 feet in length. The fan was located in this crosscut. The coal
was dry.
Eighty-Four mine foreman Dan Jones confirmed that he saw coal in the No. 3 entry. He
acknowledged that regarding one pile of coal located in the No. 64 crosscut between the No. 2 to
No. 3 entry, " ... we should have cleaned." {Tr. II. 290) Jones acknowledged that the loader
operators weren' t doing "a hundred percent job" on cleaning against the rib area. {Tr. III. 14)
Dickey testified that he was concerned about the equipment in the 6 North Section
causing an ignition of the accumulations. Dickey observed that the shuttle car cables in the 6
North section wound and rewound constantly on the mine floor. Dickey testified that in the
normal course of mining, due to this constant movement, shuttle car cables are "very likely'' to be
damaged. {Tr. I. 1"66) He testified that the "shuttle car cable... [could cause] a dust ignition in this
case when it's located around deposits of fine dry coal." {Tr. I. 165)
Dickey opined, in essence, that the accumulations were hazardous due to the extent of dry
accumulations, and the presence of ignition sources. In this connection, he testified that
continuous miners could ignite coal accumulations. He stated that in the normal course of
mining, continuous miners such as those at the Eighty-Four Mine used drill bits which generate
sparks. Dickey stated that during mining, con~uous miners strike rock on the mine floor, and
also strike sulphur balls. According to Dickey, this happens "all the time" in the normal course
of mining. (Tr. I. 164, 165) Dickey bas~d this observation on his experience inspecting, and
running a miner in the Pittsburgh seam for eight years.
Dickey testified that Eighty-Four Mine had five ignitions that he knew about prior to this
inspection. Three ignitions occurred in the two years prior to this inspection. Two ignitions

692

occurred during the operations of continuous miners, and one during the operation of a roof
bolter.

In the time period January to March 1999, Eighty-Four Mine liberated six and a half
million cubic feet of methane in a 24 hour period. It liberated 4,500 cubic feet a minute. Dickey
measured 0.3 percent of methane at the face of No. 3 entry, 0.2 percent methane at the face of the
No.2 entry, and 0.2 perc~nt methane at the face of the No. 1 entry.
Seven persons were working in the No. 1 entry. They were all working in intake air.
Dickey testified that the accumulations in the 6 North Section were reasonably likely to result in
an explosion or mine fire. He testified the explosion would result in lost workdays, and possibly
even fatal injuries.
According to Dickey and walkaround Dan Clark, they did not see anyone cleaning
accumulations at the time that Dickey issued the order.
Nineteen citations or orders were issued to Eighty-Four mine for violations of§ 75. 400
for the period from September 1998 to March 5, 1999.
Dickey had previously issued seven citations at this mine for accumulations in the 6
North section of coal and coal dust on the mine floor two months prior to the March 10, 1999
inspection. Dickey had also issued citations in July and August 1998 for accumulations on the
mine floor.
Dickey discussed the importance of monitoring coal accumulations with the operator's
management personnel after the issuance of each of those citations issued in January to March
1999, and July to August, 1998. In addition, Dickey spent four hours with managers Brad
DeBusk and Mich_ael Sinovich on January 29, 1999 discussing accumulations. Dickey told mine
management that th~y must clean during the mining cycle. He told them that they would be
issued citations if they did not clean up as mining progressed, "and advised them of the
possibility of getting unwarrantable citations." (Tr. I. 120)
Dickey had these conversations with ')ust about every official at the coal mine." (Tr. I
160) According to Dickey, Safety Manager Brad DeBusk indicated to him that he understood the
requirements, and would tell the supervisors at the mine about them.
Dickey testified that mine foreman Jones told him, referring to his foreman, that "they
knew they were supposed to clean up as they mined." (sic) (Tr. I. 110) As a result of his
inspection, Dickey issued a number of orders and citations.

693

II. Discussion
A. Order No. 7075382 (Docket No. PENN 99-232)

1. Violation of30 C.F.R. § 75.400
Order No. 707~382 issued by Dickey alleges a violation of 30 C.F.R. 400 which, as
pertinent, provides that "coal dust, ... loose coal and other combustible material, shall be cleaned
up and not be permitted to accumulate in active working, .... ". Dickey's testimony, corroborated
in essential parts by Clark, set forth, based upon his observations and measurements, detailed
dimensions and locations of coal and coal dust in cited areas. Further, according to Dickey, at
various locations he touched the accumulated material, and it was dry. On the other hand, Steven
M. Strange, a mine inspector for the Commonwealth of Pennsylvania, inspected the 6 North
section on March 8, between 9:00 a.m. to 12:00 p.m. He indicated that mining was in progress at
the time, and he described the area as being in very good condition. He indicated that his notes
only set forth some spillage on the ribs. However, his testimony is not accorded sufficient weight
to rebut or impeach Dickey's testimony regarding the conditions observed by him, inasmuch as
Dickey's observations were made prior to the time the order he issued at issue, i.e. 9: 10 a.m. In
contrast, Strange indicated generally that his inspection was between the hours of9:00 a.m. and
12:00 p.m. but did not specifically testify that any observations that he made were prior to the
abatement of the cited conditions.
Daniel Jones, the Eighty-Four mine foreman who was on the section at issue at
approximately 10:00 a.m., on March 10, observed that the No. 3 entry was "cleaned petty good"
(Tr. II. 281 ), that in "intermittent areas" (Tr. II. 281) there was loose coal 3 inches by 3 inches by
6 inches where the rib meets the floor, that there was no float coal dust, and that the conditions at
the No. 3 entry were normal in the cutting sequence. He also described ~ chunks of coal on
the floor of the 64 crosscut between the second and third entries, and maintained that these were
not hazardous. H('. opined that no cleaning was necessary in the No. 3, entry or the 64 crosscut.
He also opined that although there were accumulations near the fan, the material was only illmm
fine coal dust that did not present any hazard. He described conditions in the No. 2 entry at the
64 Yz crosscut as containing "intermittent" areas of coal 3 inches by 3 inches by 6 feet. However,
he did not specifically contradi".t Dickey's testimony regarding the specific accumulations he
observed and measured. Similarly, neither Paul Havrilesko, a mechanic who worked the
midnight to 8:00 a.m. shift on March 10, nor John Jakubic, the 6 North section foreman who also
was present on the morning of March 8, adduced testimony of sufficient specificity to contradict
Dickey's testimony regarding the conditions observed and measured by him at specific locations
in the area at issue. Neither have Harvilesko nor Jakubic nor any other of Respondent's
witnesses presented a different version of measured accumulations from that testified to by
Dickey. Nor did any of Respondent's witnesses contradict Dickey's testimony regarding the
specifics of the accumulations observed by him at the locations cited, at the time of his
observations and measurements. Accordingly I find that Dickey's testimony in these regards has
not been contradicted or impeached. Thus, based upon Dickey's testimony I find that as of the

694

date and time cited, there were extensive areas of accumulated coal dust in various locations in
the cited areas. Some of these accumulations were dry. Further, based on Dickey's testimony,
that was not impeached, contradicted or rebutted, I find that the cited areas contained ignition
sources. Hence, I find within the context of this record, that the accumulations were hazardous.
I thus find that Eighty-Four was in violation in Section 75.400 supra.
2. Signi~cant 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 ~oal or other mine safety or health hazard." 30 U.S.C. § 814(d)(I). 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 reasonably serious nature." Cement Division, National Gypsum Co.,
3 FMSHRC 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained its
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 S.tates 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 104(d)( 1), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U. S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
As noted above, the record establishes a violation of a mandatory safety standard.
Further, due to the extensiveness of the accumulations, and considering the fact that some of the
accumulated coal dust was dry and constituted a combustible material, I find that the second
element set forth in Mathies supra has been met.
695

Clete Stephan, an expert in the area of fire and explosion hazards, testified that, in
general, in order for an explosion to occur five elements are necessary. He listed these as fuel,
heat, oxygen, suspension of fuel, and confinement. The fact that men were working in the area
without any oxygen supplement indicates that oxygen existed in sufficient quantities to sustain
life. According to Stephan's uncontradicted testimony, this amount oxygen was sufficient to
support combustion of methane or coal dust. Further, it is not contradicted that confinement was
present as the underground mine presents a confined environment. Moreover, Eighty-Four did
not rebut or contradict the testimony of Dickey regarding the significant liberation of methane at
the mine, in the time period January through March 1999. Nor did Eighty-Four rebut, impeach,
or contradict Dickey's testimony that shuttle car cables are "very likely" to be damaged and can
cause a dust ignition wh~n they are located around deposits of fine dry coal, and that the drill bits
of the continuous miner, in normal operations, generate sparks. I thus find that the record
establishes the existence of several ignition sources. Further, I find, based on Dickey's
testimony, which was not impeached or contradicted, that he had observed dust in suspension. I
thus find that all the necessary elements for an explosion to occur, as testified to by Stephan and
not impeached or contradicted, were present. Hence, I find, taking into account the extensiveness
of the accumulations, as well as the existence of all the elements necessary for combustion or
explosion, the existence of a confluence of factors present which establish the third element of
Mathies supra, i.e. a reasonable likelihood that the hazard contributed to i.e. a fire or an
explosion, would result in an injury. (See Texasgulf, Inc., 10 FMSHRC 498, 501 (1988). Due to
the nature of a fire or explosion and confined space, and given the presence of miners in the
section, I find that there was a reasonable likelihood that a resultant injury would be of a
reasonably serious nature. Thus, taking into account all the above I find that, within the
framework of this evidence, it has been established that the violation was significant and
substantial.
3. Unwarrantable Failure
fu order to sustain a finding of a unwarrantable failure, it most be established by the
Secretary that the violation resulted from Eighty-Four's "aggravated conduct". (Emery Mining
Corp. 9 FMSHRC 1997 (1987). Eighty-Four, in asserting that the Secretary has not met this
burden, refers to the testimony of Jones that the accumulations were being removed "in an
established systematic fashion". Eighty-Four refers also to the testimony of Jones that it had
instituted a requirement for crews to clean up as they mined rather than waiting for the scraper
crew as was the previous practice. Also, that the crews' foremen received training in this regard.
Additionally, Eighty-Four refers to the testimony of Strange that, the condition of the section in
question had been improving that the section was heading "big time, in the right direction since
the mine had been sold." (Tr. II. 196).
I note that Jones indicated that the conditions in the No. 3 entry were normal in the
cutting sequence, and that in his preshift examination he did not see any hazards to be reported. I
also take cognizance of Jakubic's testimony that he had observed the loader cleaning in the No. 1
entry shoveling both ribs in the 64 Yz crosscut. He also explained the difficulty in additional

696

shoveling due to the confined area that existed in normal operations.
On the other hand, Eighty-Four did not contradict or rebut Dickey's testimony regarding
the warning that he gave Eighty-Four's management on occasions prior to the date in question
regarding accumulations. Further, importantly, I note the extensiveness of the accumulations,
and according to the testimony of Dickey their obviousness. Within this context, and especially
noting the previous warnings given to Eighty-Four, I find that it has been established that the
violation herein was as the result of Eighty-Four's unwarrantable failure.
4. Penalty
For the reasons set forth above, (II. A (2)) infra, I find that the gravity of the violation was
high. Also, for the reason set forth above (II. A (3)) infra, I find that the level of Eighty-Four's
negligence was more than moderate. Taking into account the additional factors set forth iq.
Section 11 O(i) of the Act as stipulated to the parties, I ~d that a penalty of $3,500 is appropriate
for this violation.
C. Order No. 7075384 (Docket No. PENN 99-232)
1. Violation of 30 C.F.R. § 360(b)

Order No. 7075384 alleges a viol~tion of 30 C.F.R. § 75.360(b), which requires a person
conducting a preshift examination, to: " ...examine for hazardous conditions, ....". For the
reasons set forth above, (Il. A (3) infra,)) I have concluded that the record establishes that there
existed hazardous accumulations when cited by Dickey. There is no evidence in the record that
the full extent of these conditions was noted in the preshift report. Accordingly, I find that it has
been established that Eighty-Four did violate Section 75.360(b) supra.
2. Significant and Substantial
All the factors discussed above, II A(2) infra, that provided a basis for the findings that
the cited accumulations was a significant and substantial violation, apply with equal force to
provide a basis for that a finding that the failure to preshift these conditions was similarly
significant and substantial. Hence, essentially for the reasons set forth above, II (A)(2), infra, I
conclude that the violation was significant and substantial.
3. Unwarrantable Failure
All the factors discussed above, II. A(2) infra, that provided a basis for the finding that the
cited accumulations were the result of Eighty-Four's llllwarrantable failure, apply with equal force
to provide a basis for that a finding that the failure to preshift these conditions was similarly an
unwarrantable failure. Hence, essentially, for the reasons set forth above II. A(3) infra, I find the
violation herein of Section 360(b) supra, was as a result of Eighty Four's unwarrantable .failure.

697

4. Penalty
For the reasons set forth above, II. A(4) infra, I find that the gravity of the violation was
relatively high, and the negligence was more than moderate. Taking into account the remaining
statutory factors stipulated to by the parties, I conclude that a penalty of $3,500 is proper for this
violation.
D. Order No. 7075383 (Docket No. PENN 99-222)
1. Violation of 30 C.F.R. § 403
Additionally, Dickey issued an order alleging a violation of 30 C.F.R.§ 75.403 which
requires, as pertinent, as follows: " ...where rock dust is required to be applied, it shall be
distributed upon the top, floor, and sides of all underground areas of a coal mine and maintained
in such quantities that the incombustible content of the combined coal dust. rock dust. and other
dust shall be not less than 65 per centum .....".
Dickey's unimpeached and uncontradicted testimony establishes that he took rock dust
samples from two locations. A dust sampling lab report for the two samples taken by Dickey
indicates that the incombustible content of the samples to have been 45.3 and 41.5 respectively. I
find no merit in Eighty-Four's argument that these result should be invalidated because Dickey
did not obtain representative band samples. Section 75.403, supra does not require such samples,
nor has Eighty-Four cited any binding legal authority that requires this method of sampling to be
performed in order to sustain a violation. I thus find, based upon Dickey's testimony and the
laboratory test results, that it has been established that Eighty-Four violated Section 75.403 supra.

2. Significant and Substantial
All the factors discussed above II. A (2) infra , that provided the basis for the finding that
the cited accumulations was a significant and substantial violation, apply with equal force to
provide a basis for a finding that the violation at issue was significant and substantial. Hence for
the reasons set forth above, II. A (2) infra I find that the violation was significant and substantial.
3. Unwarrantable failure
There is no evidence in the record that Eighty-Four had received any warnings specifically
regarding the incombustible content of rock dust. Nor is there evidence that it had been recently
cited for this condition. There is no evidence in the record as to how long a period prior to
Dickey's inspection the incombustible content in the cited area had been not in compliance with
Section 403, supra. Further, the record does not establish that Eighty-Four knew of this
condition. Nor does it convincingly establish that Eighty-Four should reasonably have known of
this condition. Dickey testified that the accumulations that he observed " ... appeared not to have
an incombustibility content of at least 65 percent". He did not explain the basis for this opinion or

698

conclusion. Hence the record is devoid of sufficient evidence to predicate a finding that the
objective conditions of the dust were such that a reasonably prudent experienced miner would
have concluded that the rock dust incombustibility content was not within the regulatory
parameters. Within this context, I find that it has not been established that the violation was as a
result of Eighty-Four's unwarrantable failure.
4. Penalty .
For the reasons set forth above II. D (2), infra I find that the gravity of the violation was
relatively high. Also, for the reason set forth above II. D(3), infra I find that the level of
negligence was more than low. Considering these factors as well as remaining factors in Section
11 O(i) of the Act as stipulated by the parties, I find that a penalty of $800 is appropriate.
E. Citation 7075381 (Docket No. PENN 99-222)

1. Violation of 30 C.F.R. § 75.370(a)(l)
Dickey testified that in his inspection he observed dust accumulations that were dry and
dusty in the No. 1 entry that extended about 275 feet from the belt tail inby to the loader. He
noted that dust went into the air when he walked in the area. Clark essentially corroborated
Dickey's testimony in these regards. Dickey issued a citation alleging a violation of30 C.F.R. §
75.370(a)(l) which requires the operator to follow its approved ventilation plan. Part 75.371(u) of
the plan provides, as pertinent, that "section haulages are hosed down with water as needed."
Havrilesko testified that in the shift prior to Dickey's inspection, he watered the No. 1
entry commencing at the crusher and continuing inby for 125 feet. I .find this testimony
insufficient to contradict the testimony of Dickey, regarding his observations at the time be issued
his citations. Fuithe~-, although Harvilesko might have watered over a 125 foot distance Dickey
observed dry conditioi:is for ill feet. Similarly, Jakubic testified that in his preshift examination
of the No. 1 entry he noted that it was still damp. He also testified that he did not observe any
dust in the air from shuttle car movement. This testimony is not sufficient to rebut the testimony
of Dickey, as corroborated by Clark, regarding the conditions observed by him at the time that he
made his observations. Accordingly, I accept Dickey's t~stimony, and based upon his testimony I
find that Eighty-Four was in violation of its plan, and hence was in violation of Section
75.370(a)(l) supra.
2. Significant and Substantial
According to Dickey the dust that he cited was recognized by him be drill dust i.e., dust
that came from the roof in the bolting process. According to Dickey, the rock in the immediate
roof at the mine in question contains silica which is known to cause severe lung diseases. He also
indicated that the cited area where he observed the dust in suspension was in an entry ventilated
by the intake air which would eventually makes its way inby to the face, affecting all seven

699

persons working at the face during the shift. None of this testimony was effectively impeached or
contradicted by any of Respondent's witnesses who were present at the time Dickey made his
observations. Thus, I find that within the framework of this evidence adduced by Dickey, as well
as for the reasons set forth above, II A(2) infra, that the violation was significant and substantial
(see Mathies, supra).
3. Pen~lty
Inasmuch as the violative condition was reasonably likely to have led to severe lung
disease, I conclude that gravity of the violation was relatively high. The level of Eighty-Four's
negligence should be mitigated to some degree based upon the fact that the Eighty-Four's
management made some efforts by assigning Harvilesko to water the area in the midnight shift
prior to the time cited by Dickey. Indeed, Harvilesko testified that he watered approximately 125
feet in the entry at issue rib to rib for two hours during the midnight shift. Taking these factors
into account as well as the remaining statutory factors as discussed above, I find that a penalty of
$450 is appropriate.
F. Citation Nos. 7059549. 7059552. 7059556. and 7076858 (Docket No. PENN 99-222)
Petitioner has filed a motion to approve a settlement agreement pertaining to these
citations. A reduction in penalty from $832.00 to $165 is proposed. It also is proposed to vacate
Citation No. 7076848. I have considered the representations and documentation submitted, and I
conclude that the proffered settlement is appropriate under the criteria set forth in section 11 O(i) of
the Act, and find that the penalties proposed for these citations are appropriate.
ORDER

It is O~ERED that Order No. 7075383 shall be reduced to a section 104(a) citation that
is not significant and substantial. It is further ORDERED that Citation No. 7076848 be ,
VACATED. It is further ORDERED that within 30 days of this decision, Eighty-Four shall pay
a total civil penalty of $8,415.

f· l /

/1

\..

\ti

l~

/ Avram 1f!eisberger
Administrative Law Judge
Distribution: (Certified Mail)
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of Labor, 14480 Gateway
Building, 3535 Market Street, Philadelphia, PA 19104
Richard Vukas, Esq., CONSOL Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 19104
nt
700
-trU.S. GOVERNMENT PRJNTING OFFICE:2000-462-124/22505