AUGUST 1995

COMMISSION DECISIONS AND ORDERS
08-08-95
08-14-95
08-31-95

Lance Paul v. Newmont Gold Company
Joy Technologies, Inc.
Energy West Mining Company

WEST 95-228-DM
WEST 93-129
WEST 92-216-R

Pg. 1301
Pg. 1303
Pg. 1313

WEST 95-228-DM
SE
94-639
CENT 92-334-M
KENT 94-267
WEVA 95-53.
YORK 94-73-M
LAKE 95-201-DM
WEST 94-710-M
WEST 95-25-M
CENT 95-1-M

Pg.
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Pg.
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1323
1325
1330
1342
1364
1366
1368
1380
1385
1389

WEST 95-423-DM
WEST 95-165-M
CENT 95-16-M
CENT 95-112-M
WEST 93-452-M
WEVA 95-16
SE
94-586-R
CENT 94-118-M
PENN 94-63

Pg.
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1396
1397
1403
1408
1413
1421
1423
1459
1465

SE
SE

Pg. 1476
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ADMINISTRATIVE LAW JUDGE DEC!SIONS
06-29-95
08-01-95
08-03-95
08-04-95
08-04-95
08-04-95
08-07-95
08-09-95
08-09-95
08-10-95
08-14-95
08-15-95
08-16-95
08-17-95
08-21-95
08-22-95
08-23-95
08-24-95
08-24-95
08-25-95
08-25-95
08-25-95
08-25-95
08-30-95
08-31-95

Lance A. Paul v. Newmont Gold Company
Kellys Creek Resources, Inc.
Fort Scott Fertilizer-Cullar, Inc .
Harlan Cumberland Coal Co.
Coal Preparation Services, Inc.
Construction Materials Corporatoin
Sec. Labor for James Reike v. AKZO Salt
Wallace Brothers, Inc.
Assocaited Sand & Gravel Co.
Walker Stone Company
Sec. Labor for Cody Cherry v.
TVX .,Mineral Hill Mine
Shine Quarry, Inc.
Frick Sand & Gravel, Inc.
Robert Codner emp. by Tarrant Aggregates
Lakeview Rock Products, Inc.
Fern Cove Incorporated
Jim Walter Resources, Inc.
Acme Brick Company
Buck Mountain Coal Company
Sec. Labor for Benito Ocasio Hernandez
v. San Juan Cement Co.
Jim Walter Resources, Inc.
Sec. Labor for Delpert Bennett v.
Cardinal Stone Company
C.W. Mining Company
Wiser Construction LLC
Sec. Labor for James Reike v . AKZO Salt

95-125-DM
95-143

VA
95-69-DM
WEST 93-375
WEST 94-720-M
LAKE 95-201-DM

Pg.
Pg.
Pg.
Pg.

1486
1488
1498
1500

CENT 95-8-~
WEST 94-637-M

Pg. 1503
Pg. 1509

ADMINISTRATIVE LAW JUPGE ORDERS
05-17-95
08-08-95

ASARCO, Incorporated
Cedar Creek Quarries, Inc .

i

AUGUST

1995

Reyiew was granted in the following cases <luring the month of August:
Lance Paul v. Newmont Gold Company, Docket No . WEST 95-228-DM.
June 29, 1995 - published in this issue)

(Judge Feldman,

Secretary of Labor, MSHA v. Amax Coal Company, Docket No. LAKE 94-74.
Fauver, July 12, 1995)

(Judge

Secretary of Labor, MSHA v . Faith Coal Company, Docket No. SE 91-97, etc .
(Judge Barbour, July 1 9, 1995)

Revi ew was not granted in the fol l owing cases during the month of August:

D.H. Blattner & Sons v. Secretary of Labor, MSHA, Docket No. CENT 95-121-RM.
(Chief Judge Merlin, June 23, 1995)
Kel l ys Creek Resources, Inc. v. Secretary of Labor, MSHA, Docket No.
SE 92-122-R, etc., Judge We i sberger, July 29, 1995)

ii

COMMISSION DECISIONS AND ORDERS

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

August 8, 1995

LANCE PAUL
V.

Docket No. WEST 95-228-DM

NEWMONT GOLD COMPANY

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

ORDER
BY THE COMMISSION:

This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). On February 13, 1995, Lance Paul
initiated an action pursuant to section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3), alleging
that he had been discriminated against by Newmont Gold Company ("Newmont") in violation of
the Act. On May 23, 1995, Administrative Law Judge Jerold Feldman issued an order setting the
matter for hearing. On June 27, Newmont filed a motion to dismiss on the basis that it was
unable to locate Paul. On June 29, the judge issued an order granting the motion and dismissing
the case.
On Juiy 28, 1995, the Commission received a letter addressed to Judge Feldman from
Paul, requesting that his complaint be reopened. Paul states that he had informed MSHA of his
new address in January, and that he had arranged with the Postal Service to have_his mail
forwarded for one year. He states that, although he had received the order of dismissal, he had
not received the notice of hearing.
The judge's jurisdiction in this matter terminated when his decision was issued on June
29, 1995. 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). We deem Paul's letter to
be a timely filed petition for discretionary review, which we grant. See, e.g., Middle States
Resources, Inc., 10 FMSHRC 1130 (September 1988).

1301

On the basis of the present record, we are unable to evaluate the merits of Paul's position.

In the interest of justice, we remand this matter to the judge, who shall determine whether
dismissal is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).
For the reasons set forth above, we vacate the judge's dismissal order
matter for further proceedings.

and remand this

{l_~tt- AA

Joyce A. Doyle, Commissioner

Distribution:
Lance Paul
P.O. Box 211115
Crescent Valley, NV 89821
Charles W. Newcom, Esq.
Sherman & Howard
633 Seventeenth St., Suite 3000
Denver, CO 80202
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
1302

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

August 14, 1995

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

Docket No. WEST 93- 129

JOY TECHNOLOGIES INC. COAL FIELD OPERATIONS

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

DECISION
BY: Jordan, Chairman; Doyle and Holen, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). It presents the issues of whether Joy
Technologies Inc. - Coal Field Operations ("Joy") is an independent contractor-operator within
the meaning of section 3(d) of the Mine Act, 30 U.S.C. § 802(d), 1 and, if so, whether it was liable
for a violation of30 C.F.R. § 48.28.2 Commission Administrative Law Judge Gary Melick
concluded that Joy was an operator under the Mine Act and that it was liable for the violation. 15

1

Section 3(d) of the Mine Act provides:
"operator" means any owner, lessee, or other person who
operates, controls, or supervises a coal or other min~ or any independent contractor performing services or construction at such
mine[.]

30 U.S.C. § 802(d).
2

Section 48.28(a), which implements the refresher training requirement of section l 15(a)
of the Mine Act, 30 U.S.C. § 825(a), provides: "Each miner shall receive a minimum of 8 hours
of annual refresher training as prescribed in this section." Section l 15(a) of the Mine Act
provides in part: "all miners shall receive no less than eight hours of refresher training no less
frequently than once each 12 months . ... " 30 U.S.C. § 825(a).

1303

FMSHRC 2147 (October 1993) (ALJ). The Commission granted Joy's petition for discretionary
review. For the reasons that follow, we affirm the judge's decision.

I.
Factual and Procedural Background
Joy manufactures, sells and services mining equipment, and has provided equipment to
Somerset Mining Company for use at its Sanborn Creek Mine, an underground coal mine. 15
FMSHRC at 2147. Joy employs service representatives who, after an equipment sale, provide
follow-up services to customers. Id. at 2147-48; Tr. 13 .
Dixson McElhannon is the Joy service representative for the Sanborn Creek Mine. 15
FMSHRC at 2148. His responsibilities include assuring that equipment is delivered in proper
condition, advising and assisting in assembly and repairs, and procuring necessary parts. Id at
2147-48; Tr. 13-14, 34-35, 43-44. He "troubleshoots" when problems arise with Joy equipment.
15 FMSHRC at 2148; Tr. 13. McElhannon performs services both on the surface and underground. Tr. 36; Stip. 10; Ex. M-2 . Consistent with Joy's policy, McElhannon's service calls at
Sanborn Creek Mine continued after the warranties on Joy equipment expired. 15 FMSHRC at
2148; Tr. 46.
Service reports filed by McElhannon show that, during the 2 1/2 month period from
January 24 through April 7, 1992, he visited the mine on at least four occasions, twice for twoday periods, for a total of six days. 15 FMSHRC at 2148-50. McElhannon also visited the mine
on other occasions but did not prepare a report. Id. at 2148.
During his visit on March 2 and 3, McElhannon assisted in the unloading of two new
shuttle cars. Id. at 2149. He checked the cars to ensure that they were in working condition,
provided technical assistance in identifying a problem with one of the cars, and obtained a
replacement part. Id.
On April 6, 1992, he visited the mine to oversee the unloading and assembly of a new Joy
continuous miner and to ensure that it worked properly when assembled. Id at 2149-50; Tr. 3132. After unloading, the miner was taken in sections to the maintenance shop; assembly of the
miner began on April 7. 15 FMSHRC at 2150. While assisting in the assembly, McElhannon
operated the remote control to move the mining machine so that the maintenance workers could
insert pins. Id.
That same day, Inspector Larry Ramey from the Department of Labor's Mine Safety and
Health Administration ("MSHA") arrived in the shop to continue his inspection of the mine. Tr.
62-63; 15 FMSHRC at 2150. At that time, the maintenance workers were having some difficulty
with the equipment's hydraulic system. Tr. 64-65, 106-07. Ramey observed McElhannon at the

1304

remote controls, raising and lowering the cutter head. Tr. 64-65. A coal miner was standing in
front of the head while it was being raised and lowered. 15 FMSHRC at 2150; Tr. 63-65. Ramey
believed that the equipment operator was endangering the safety of that miner; the inspector was
primarily concerned that the head could become energized and strike the employee, causing his
death. Tr. 63-64. Ramey determined that McElhannon had not received refresher training within
the preceding year and issued Order No. 3581501, which required the withdrawal ofMcElhannon
from the mine pursuant to section l04(g)(I) of the Mine Act,3 30 U.S.C. § 814(g)(l). 15
FMSHRC at 2148; Tr. 66, 71; Ex. M-3.
Following an evidentiary hearing, the judge concluded that Joy was an independent
contractor-operator subject to liability under the Mine Act. 15 FMSHRC at 2150-52. He based
his determination on Joy's performance of "continuing services in connection with . . . contracts of
sale." Id. at 2151. The judge also found that "Joy's representative was ... performing limited but
necessary services at the Sanborn Creek Mine ...... Id Relying on section 3(d) of the Act, on
Otis Elevator Co. v. Secretary of Labor, 921 F.2d 1285 (D.C. Cir. 1990), and on the Commission's decisions in Bulk Tramportation Services, Inc., 13 FMSHRC 1354 (September 1991), and
Lang Brothers, Inc., 14 FMSHRC 413 (September 1991 ), the judge concluded that, because Joy
was providing essential services closely related to the extraction process, Joy's presence at
Sanborn Creek Mine was sufficient to make Joy an operator within the meaning of Section 3(d) of
the Act. 15 FMSHRC at 2151-52.
The judge als0 found that, because McElhannon had not received annual refresher
training, Joy had violated section 48.28(a). Id. at 2152. He concluded that the violation was not
significant and substantial and assessed a civil penalty of $100. Id.

3

Section 104(g)( 1) of the Mine Act provides in part:
If . .. the Secretary ... shall find employed at a . .. mine a
miner who has not received the requisite safety training as determined under section 115 of this Act, the Secretary ... shall issue an
order under this section which declares such miner to be a hazard to
himself and to others, and requiring that such miner be immediately
withdrawn from the ... mine, and be prohibited from entering such
mine until ... the Secretary determines that such miner has received the training required by section 115 of this Act.

1305

II.
Disposition

A. Whether Joy is an Independent Contractor
Joy asserts that it is not an independent contractor within the meaning of section 3 (d) of
the Mine Act. It relies on the definition of independent contractor set forth in 30 C.F.R. § 45.24
and argues that it has not contracted to perform services at Sanborn Creek Mine. J. Br. at 9- 11.
The Secretary responds that section 3(d) of the Mine Act does not require the existence of a
contract to establish independent contractor-operator status. S. Br. at 22 n.8.
We reject Joy's argument that the absence of a service contract precludes a finding that
Joy is an independent contractor. In Bulk, the Commission stated:
Our focus is on the actual relationships between the parties,
and is not confined to the terms of their contracts. . . . [T)he
determination of whether a party is properly designated to be within
the scope of sectio~ 3( d) of the Act is not based upon the existence
of a contract, nor the terms of such a contract.
13 FMSHRC at 1358 n.2. Moreover, it is settled law that an entity may be held to be an
independent contractor based on its performance of work "in connection with, or for the purpose
of carrying out, the contract of sale .... " 41 Am.Jur.2d, Independent Contractors § 18. We
conclude that the regulation's reference to "contracts to perform services" is not restricted to
written contracts and encompasses services performed incident to a contract of sale. Accordingly,
we affirm the judge's conclusion that Joy is an independent contractor.

4

Section 45.2 states:
As used in this part:

(c) Independent contractor means any person, partnership,
corporation, subsidiary of a corporation, firm, association or other
organization that contracts to perform services or construction at a
mme .. ..

1306

B. Whether Joy is an Operator
The parties also disagree on the appropriate standard for detennining operator status
under section 3(d) of the Mine Act. Asserting that it provided only limited services at Sanborn
Creek Mine and, therefore, was not an operator, Joy argues that the Commission cases·cited by
the judge were wrongly decided. J. Br. at 11-20. Relying on the decision of the United States
Court of Appeals for the Fourth Circuit in Old Dominion Power Co. v. Donovan, 772 F.2d 92
(1985), in which the court held that a power company that installed, maintained and read an
electric meter monthly at a substation separated by a chain link fence from the rest of the mine
property was not an operator within the meaning of section 3(d), Joy urges the Commission to
adopt a narrow definition of operator. J. Br. at 15-22.
The Secretary responds that the Commission should adopt the broad definition of operator
set forth by the United States Court of Appeals for the D.C. Circuit in Otis Elevator Co. v.
Secretary of Labor, i.e., that section 3(d)'s reference to "any" independent contractor performing
services at a mine "means just that -- any independent contractor ... ." S. Br. at 8-9, quoting 921
F.2d at 1290 (footnote omitted) (emphasis in original). In the alternative, the Secretary contends
that, in light of the frequency of McElhannon's visits to the mine, his travels underground, and the
importance of his work to the mining and transporting of coal at Sanborn Creek Mine, Joy is an
independent contractor-operator either under the Commission's line of cases interpreting the term
"operator" or undel\ Old Dominion. S. Br. a·t 13-20.
As the Commission has noted, section 3(d) of the Mine Act expanded the definition of
operator" contained in the Federal Coal Mine Health and Safety Act of 1969, 30 U.S .C. § 801 et
seq. (1976) (amended 1977). to include "any independent contractor performing services or
construction at such mine." E.g., Bulk Tran5portation. 13 FMSHRC at 1357. In the Otis
Elevator Co. cases, 11 FMSHRC 1896 (October 1989) ("Otis I 11 ) and 11FMSHRC1918
(October 1989) ("Otis II"), affd on other ground'>, 921F.2d1285, the Commission set forth a
two-pronged test for determining whether an independent contractor may be considered an
operator under section 3(d). First, "the independent contractor's proximity to the extraction
process" and whether its work is "sufficiently related" to that process are examined. Otis I at
1902. The Commission has found a contractor's activity to be sufficiently related to the extraction
process where its employees are exposed to mining hazards and have "a direct effect on the safety
of others .... 11 Id. Second, the Commission examines "the extent of [the contractor's) presence
at the mine." Otis I, 11 FMSHRC at 1902. The Commission has formulated this test as whether
the contractor's "contacts with the ... mine were not so rare, infrequent, and attenuated as to
bring this case within the holding of Old Dominion . . . . " Otis II, 11 FMSHRC at 1922-23. As
the Commission noted in Otis I, "there may be a point .. . at which an independent contractor's
contact with a mine is so infrequent or de minimis that it would be difficult to conclude that
services were being performed." 11 FMSHRC at 1900-01, quoting National Indus. Sand Ass'n v.
Marshall, 601 F.2d689, 701 (3d Cir. 1979).
11

1307

We conclude that Joy's presence at Sanborn Creek Mine was sufficient to satisfy the test
set forth in the Commission's Otis cases and their progeny. As to the first prong of the analysis,
the parties stipulated that the continuous miner is an "essential piece of mining equipment. 11 Tr.
34~ Stip. 5. McElhannon testified that the Joy shuttle cars used at the mine are essential to the
mining process. Tr. 41 . We agree with the judge that, in troubleshooting prob'lems with the Joy
continuous miner and shuttle cars, providing technical assistance related to the unJoading,
assembly and operation of Joy equipment, and securing needed parts, Joy's representative engaged
in activities essential to the extraction process. Coal could not be mined without the continuous
miner and shuttle cars. The first prong is also satisfied because, in performing his service work in
the maintenance shop and underground, McElhannon was exposed to the hazards of the Sanborn
Creek Mine and his work directly affected the safety of miners. The withdrawal order was issued
because Inspector Ramey believed that McElhannon's operation of the continuous miner was
endangering the safety of an employee working nearby. We conclude that substantial evidence
supports the judge's determination that Joy's work is sufficiently related to the extraction process
to satisfy the first prong of the Commission's operator test.
As to the second prong of the test, Joy's contacts with the mine were more than de
minim;.s. McElhannon visited Sanborn Creek Mine regularly. He spent at least six days at the
mine during a 2 1h month period, and his contacts could be expected to continue. Joy was present
at the mine at least as frequently as the contractors in Otis I (six hours per month) and Lang Bros.
(seven to ten days on a non-continuing basis). As the judge concluded, Joy's contacts were
sufficient to establish that services were being performed. 15 FMSHRC at 2151 . Moreover, in
Lang Bros., the Commission explained that "[a]n independent contractor's presence at a mine may
appropriately be measured by the significance of its presence, as well as by the duration or
frequency of its presence." 14 FMSHRC at 420. We conclude that substantial evidence supports
the judge's determination that Joy's presence at Sanborn Creek Mine also satisfies the second
prong of the Commission's operator test.
We are not persuaded by Joy's argument that, based on Old Dominion, we should
narrowly construe the term "operator." In Old Dominion, the court set forth a two-part test for
determining whether a contractor is an operator under the Mine Act: whether the contractor is
"engaged in the extraction process" and whether it has a "continuing presence at [a] mine." 772
F.2d at 96-97.
In Otis I, the Commission declined to construe Old Dominion narrowly, stating:
To adopt . . . [a] restrictive interpretation of Old Dominion
... would ... frustrate Congress' clear intent, when it expanded the
definition of "operator" in the Mine Act, to broaden and facilitate
direct regulation of independent contractors on mine property.
11 FMSHRC at 1901-02. The Commission's interpretation of Old Dominion is consistent with
recent case law in the Fourth Circuit. In United Energy Services, Inc. v. MSHA, 35 F.3d 971 (4th

1308

Cir. 1994), decided after the filing of the briefs in this case, the court did not narrowly construe
the term "operator." The contractor in United Energy maintained a conveyor belt, a small portion
of which was located on mine property, that was used to transport coal waste to an adjacent
power plant. Id at 973. The court stated:
[T]he activities of United Energy's employees are part of the coal
preparation process and thus are sufficiently a part of the mining
process to qualify United Energy as an independent contractor
covered by the Act. We therefore conclude that United Energy had
contacts with the mine site of sufficient frequency and of such a
nature as to meet those requirements for being an "independent
contractor11 performing services at a coal mine. Cf Otis Elevator
Co. v. Secretary of Labor, 921F.2d1285, 1290-91 (D.C. Cir.
1990) (interpreting statutory language to include any independent
contractor performing services at a mine).

Id at 976 (emphasis in original).
In light of our disposition, we do not reach the Secretary's argument that the Commission
should adopt the operator test set forth by the D.C. Circuit in its decision affirming Otis I and II.
Clearly Joy would be a.statutory operator under that test.

C. Joy's Other Contentions
We reject Joy's contention that it should not be held to have violated§ 48.28(a) because it
could not have provided the necessary training. As the Secretary points out, Joy may arrange
with Sanborn Creek Mine to provide the training, as was done to abate the cited violation. S., Br.
at 22-23. Nor does Joy's liability for the violation in this case automatically subject it to liability
for all health and safety violations at the mine, as Joy argues. J. Br. at 21-22. The Secretary
notes that, "[i]f a regulation pertains to a matter over which Joy and its employees truly have no
control, there is no reason to expect that Joy would be held responsible for a violation of that
regulation." S. Br. at n. I 0. See also III MSHA Program Policy Manual 6 ("some provisions of
the Act, standards or regulations may not be directly applicable to independent contractors or
their work11). In any event, Joy may challenge future citations if it believes the owner-operator
should have been the object of the Secretary's enforcement action. "[T]he Commission has
recognized that its review of the Secretary's action in citing an operator is appropriate to guard
against abuse of discretion." W-P Coal Co., 16 FMSHRC 1407, 1411 (July 1994)(citations
omitted).s

s In its Petition, Joy also assigned as error the judge's failure to address its contention that
McElhannon was not a "miner." Pet. at 9. We do not address this issue because Joy did not
argue it in its brief See Asarco Mining Co., 15 FMSHRC 1303, 1304 n.3 (July 1993).

1309

III.
Conclusion
For the foregoing reasons, we affirm the judge's decision.

1310

Commissioner Marc Lincoln Marks, concurring:
I concur in the result reached by my colleagues in this case; however, I reach that
common result by means of a different analytical path.
Specifically, in my view, the D.C. Circuit's opinion in Otis Elevator Co. v. Secretary
of Labor, 921 F.2d 1285 (D.C. Cir. 1990) ("Otis Elevator") represents the most reasoned
approach to interpreting the term "operator" under section 3(d) of the Mine Act, 30 U.S.C. §
802(d). The D.C. Circuit in Otis Elevator strictly construed section 3(d) of the Mine Act,
which provides that the term "operator" includes "any independent contractor performing
services . .. at [a] mine." Section 3(d) of the Mine Act (emphasis added). The court stated
that "any" meant "any independent contractor performing services at a mine." 921 F.2d at
1290, quoting Section 3(d) of the Mine Act (emphasis in original). The D.C. Circuit found no
warrant in the plain language of the Act, or in the legislative history, for diluting the term
"any." Id. ; c.f Old Dominion Power Co. v. Donovan, .772 F.2d 92 (4th Cir. 1985); Bulk
TransportaJion Services, Inc., 13 FMSHRC 1354 (September 1991); Lang Brothers, Inc., 14
FMSHRC 413 (September 1991); Otis Elevator Co., 11 FMSHRC 1896 (October 1989); and
Otis Elevator Co., 11FMSHRC1918 (October 1989). Neither do I. Along with the D.C.
Circuit, I leave open the question of whether there is any point at which an independent
contractor's "contact with· a mine is so infrequent or de min.imis that it would be difficult to
conclude that services were being performed." 921 F.2d at 1290, n.3.
In my view, this case presents the Commission with an opportunity to align its
interpretation of this section of the Mine Act with that set forth in Otis Elevator. In contrast to
my colleagues, I take this opportunity and adopt Otis Elevator. Applying Otis Elevator, I
conclude that the record amply supports the judge's determination that Joy, an independent
contractor, 1 was performing services at a mine. Specifically, the record reveals that Joy's
representative: (1) was troubleshooting problems with the Joy shuttle car and continuous
miner; (2) provided technical assistance related to the unloading, assembly, and operation of
Joy equipment; (3) secured needed parts; and (4) operated a continuous miner in a way that
resulted in the instant citation. Such activities clearly constitute the performance of services at
a mine by an independent contractor.
Finally, I agree completely with the analysis employed by my colleagues in rejecting
Joy's impossibility defense. See slip op. at 7.
k~

1

For the reasons set forth by my colleagues, I agree that Joy is an independent
contractor. See slip op. at 4.

1311

Distribution
W. ScottRailton, Esq.
Marjorie P. Alloy, Esq.
Reed, Smith, Shaw & McClay
8251 Greensboro Drive
Suite 1100
McLean, VA 22102
Tana M. Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1312

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

August 31, 1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 92-216-R
WEST 92-421

v.

ENERGY WEST MINING COMPANY

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

DECISION
BY: Jordan, Chairman; Doyle and Holen, Commissioners
This consolidated contest and civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"), involves a
citation issued by the Department of Labor's Mine Safety and Health Administration ("MSHA")
to Energy West Mining Company ("Energy West") alleging a violation of30 C.F.R. § 75.316
(1991). 1 Upon cross motions for summary decision, former Administrative Law Judge Michael
1

Section 75.316, which restated 30 U.S.C. § 863(0), provided as follows:
A ventilation system and methane and dust control plan and
revisions thereof suitable to the conditions and the mining system
of the coal mine and approved by the Secretary shall be adopted by
the operator and set out in printed form on or before June 28, 1970.
The plan shall show the type and location of mechanical
ventilation equipment installed and operated in the mine, such
additional or improved equipment as the Secretary may require, the
quantity and velocity of air reaching each working face, and such
other information as the Secretary may require. Such plan shall be
reviewed by the operator and the s ·ecretary at least every 6 months.

1 31 3

A. Lasher, Jr. determined that Energy West violated the standard and he assessed a civil penalty
of$20. 15 FMSHRC 1185 (June 1993)(ALJ). For the reasons set forth below, we vacate the
judge's decision and remand for further proceedings.

I.
Factual and Procedural Background
At 4: 10 a.m. on December 26, 1991, MSHA Inspector Robert Baker issued a citation2 to
Energy West at its Deer Creek Mine in Emery County, Utah. The citation alleged that Energy
West violated the approved ventilation system and methane and dust control plan it had adopted
pursuant to 30 C.F.R. § 75.316 and section 303(0) of the Act, 30 U.S.C. § 863(0). 15 FMSHRC
at 1187. The citation stated that the 6th Right longwall section was required to be ventilated by
30,000 cubic feet of air per minute ("cfm"). Id. The inspector measured the air quantity to be
22,680 cfm, which is not disputed by Energy West. Id. at 1188.
Energy West contested the citation and, on August 17, 1992, filed a motion for summary
decision pursuant to former Commission Procedural Rule 64, 29 C.F.R. § 2700.64.3 In support
of its motion, Energy West asserted that the requirement for 30,000 cfm set forth on the
individual water spray schematic for mechanized mining unit ("MMU") No. 051-0 was the sole
basis for the Secretary's citation. Energy West also asserted that the provision applies only
during periods of coal production, not during idle periods, and that the citation was issued
"during an idle shift when no coal production was occurring." E. Mot. at 3-5, citing S. Resp. to
Interrog. at 3-4. The operator contended that, because the provision is set forth only on the
individual MMU water spray schematic, the 30,000 cfm requirement is linked to the need for
water spraying and argued that, because spraying is required only during active mining, the
30,000 cfm requirement is likewise limited to production shifts. Energy West referred to other

On November 16, 1992, 30 C.F.R. § 75.316 was superseded by 30 C.F.R. § 75.370, which
imposes similar requirements.
2

The citation· states:
The approved ventilation, methane, and dust control plan wa~ not
being complied with in the 6th Right longwall section as the plan
requires 30,000 C.F.M. of air to reach the intake end of the
longwall face, the air reading was 22,680 C.F.M. reaching the
intake end of the longwall. The crew had been withdraw[n] to
the headgate befor[e] my arrival on the section.

3

Subsequent changes to Rule 64 do not affect the instant case. See 29 C.F.R.
§ 2700.67 (1993).

1314

parts of its ventilation plan and to its fan stoppage plan to support its position that the ventilation
plan distinguishes between periods of active mining and idle periods:• Id. at 3-4, 7-8. The
motion was supported by an affidavit from Dave Lauriski, Energy West's Director of Health,
Safety and Training, who developed the ventilation plan.
The Secretary filed a cross motion for summary decision, asserting that the pertinent plan
provision is unambiguous and that the 30,000 cfm requirement applies at all times whether or not
coal is being mined. S. Mot. at 3. The Secretary disagreed that the provision was intended to
apply only during periods of coal production or that Energy West had consistently interpreted the
provision in the manner it now advocates. Id. at 1-2. He further disputed that the shift was idle
and contended that the reason coal was not being produced at the time was because the MMU
was being repaired. Id. at 3.
Relying on 30 C.F.R. §§ 75.301 and 75.301-J(c),5 the Secretary argued that the longwall

4

Energy West relied on the following provisions of its ventilation plan:

VII. VENTILATION OF IDLE AREAS. "l. Appropriate measures will be taken in
idle areas to insure the air quality standards required under parts 75.301-2 and 75 .301-5."
XVII. LONGWALL SET-UP AND EXTRACTION VENTILATION. "6. Minimum
air quantities for set-up and extraction faces are: ... IDLE PERIODS - At idle periods during
the set-up and extraction process a minimum of 3,000 cfm of air will be maintained across the
set-up and extraction faces."
Energy West relied on the following provision of its fan stoppage plan:

C. RESUMPTION OF WORK. 3. BACK-UP FAN OPERATION. "b. Idle work
may be done as long as the work area has been examined in accordance with 30 C.F.R.
75.303 .... "
E. Mot. Attachments Band C.
5

Section 75.301 provided in pertinent part: "the minimum quantity of air reaching the
intake end of a pillar line shall be 9,000 cubic feet a minute .... The authoriZed
representative of the Secretary may require in any coal mine a greater quantity and velocity of
air when he finds it necessary to protect the health or safety of miners." 30 C.F.R. § 75.301
(1991).
Section 75.301-3(c) stated that "[w]hen longwall mining is practiced the volume of air
shall be measured in the intake entry or entries at the intake end of the longwall face and the
longwall shall be constructed as a pillar line." 30 C.F.R. § 75.301-3(c) (1991).

1315

face must be constructed "as a pillar line." S. Mot at 3. The Secretary asserted that, although
the minimum quantity of air required under the standard at a pillar line is 9,000 cfin, the
Secretary may require a greater quantity and, in this case, had required 30,000 cfin. Id. at 3. The
Secretary supported his motion for summary decision with an affidavit from MSHA Supervisory
Mining Engineer William P. Reitze, who, as a member of the MSHA Denver Ventilation Group,
reviews and evaluates coal mine ventilation plans. Affidavit at 1-2. Reitze averred that the
30,000 cfm requirement for the longwall face during idle periods ensures that methane and other
harmful gases are cleared from the bleeder system as well as from the face. Id. at 2-3. In its
response to the Secretary's cross motion for summary decision, Energy West disputed the
Secretary's assertions.
The judge granted summary decision in favor of the Secretary. He concluded that the
plan provision clearly required 30,000 cfm of air at all times and, thus, that a violation had been
established. The Commission granted Energy West's petition for discretionary review, which
challenged the j udge1s decision on both procedural and substantive grounds.

II.
Disposition
Energy West contends on review that the 30,000 cfm requirement applies only during
active coal production, not when the section is idle. PDR at 8-10. Energy West also argues that
the Secretary should be required to demonstrate that it was on notice of the Secretary's
interpretation. Id at 14. It maintains that the finding of violation should be reversed. Reply Br.
at 6. Alternatively, if the Commission determines that a genuine issue of material fact exists, the
operator seeks remand. PDR at 15. The Secretary asserts that the judge correctly found the
disputed provision to be unambiguous and to apply at all times. S. Br. at 8-15.
Summary decision may be granted only where: (1) the entire record, including pleadings,
affidavits, and answers to interrogatories, establishes that there is no genuine issue as to any
material fact; and (2) the moving party is entitled to summary decision as a matter of law. 29
C.F.R . § 2700.67(b). See generally Missouri Gravel Co., 3 FMSHRC 2470, 2471 (November
1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). We conclude that the disputed plan
provision is ambiguous and that the judge's determination to the contrary was erroneous. We
also conclude that the record before the judge contained disputed facts material to determining
the requirements of Energy West's ventilation plan. For these reasons, summary decision was
inappropriately entered. See Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994).
The plan contains a separate schematic entitled 11 water spray diagram11 for each MMU
longwall section in the mine. 15 FMSHRC at 1188. It is undisputed that the 30,000 cfm

1316

requirement is set forth in one place only, as one of four "controls and practices" on the water
spray diagram. See S. Br. at 14; 15 FMSHRC at 1186. One possible inference from the
placement of the requirement is that it is linked to the provision of water sprays and that, like
water sprays, the requirement applies only while the longwall is in operation. Furthermore, as
Energy West argues, air quantity requirements in the plan vary, depending on whether mining is
occurring or the section is idle. PDR at 9-10; Reply Br. at 4-6. We therefore conclude that the
disputed plan provision is unclear. Accordingly, a detem1ination must be made as to whether the
Secretary's interpretation of the provision is reasonable and we remand to that effect.6
In the event the judge determines that the Secretary' s interpretation of the provision is
reasonable, he should also address the operator's notice argument and determine whether the
operator had notice that the provision was to apply at all times. "The Commission's task is ... to
determine whether the Secretary's interpretation of [a] regulation is reasonable and whether the
operator was given fair notice of its requirements." Consolidation Coal Co., 14 FMSHRC 956,
969 (June 1992). Commission precedent expressly recognizes notice as an appropriate inquiry as
to ventilation and roof control plan provisions. Jim Walter Resources, Inc., 9 FMSHRC 903, 908
(May 1987); Mettiki Coal Corp., 13 FMSHRC 3, 7 (January 1991).
Because the plan provision is enforceable as a mandatory standard, the operator is entitled
to the due process protection available in the enforcement of regulations. " [T]he due process
clause prevents . . . deference from validating the application of a regulation that fails to give fair
warning of the conduct it prohibits or requires." Gates & Fox Co. v. Occupational Safety and
Health Review Comm'n, 790 F.2d 154, 156 (D.C. Cir. 1986). 7 When "a violation of a regulation
subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean
what an agency intended but did not adequately express." Phelps Dodge Corp. v. Federal Mine
Safety and Health Review Comm'n, 681 F.2d 1189, 1193 (9th Cir. 1982), quoting Diamond
Roofing Co., Inc. v. Occupational Safety and Health Review Comm'n, 528 F.2d 645, 649 (5th

6

An agency's reasonable interpretation of its regulations is entitled to deference .
Secretary of La.bar v. Western Fuels-Utah, 900 F.2d 318, 321 (D.C. Cir. 1990).
7

We find Sewell Coal Co. v. Federal Mine Safety and Health Review Comm 'n, 686 F.2d
I 066 (4th Cir. 1982), cited by our colleague, to be unpersuasive. As noted by Judge Widener in
his dissent, neither SEC v. Chenery Corp., 332 U.S. 194 (1947), nor NLRB v. Bell Aerospace
Co., 416 U.S. 267 (1974), "involved the imposition of a fine without notice." 686 F.2d at 1073.
In Bell Aerospace, the Supreme Court explicitly acknowledged this distinction, stating: " [T]his
is not a case in which some new liability is sought•to be imposed on individuals for past actions
which were taken in good faith reliance on Board pronouncements. Nor are fines or damages
involved here ... ." Id. at 295 (emphasis added). Neither NLRB v. Wyman-Gordon Co., 394 U.S.
759 (1969), nor Molina v. INS, 981F.2d14 (1st Cir. 1992), also cited by our colleague, dealt
with imposition of liability without prior notice; in Molina the court expressly notes that no due
process claim is involved. 981 F.2d at 19.

1317

Cir. 1976). Accord General Electric Co. v. EPA, 53 F.3d 1324, 1328 (D.C. Cir. 1995); Secretary
ofLabor v. Western Fuels-Utah, Inc. 900 F.2d 318, 326 (D.C. Cir. 1990) (Edwards, J.,
dissenting). Laws must "give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly." Grayned v. City ofRockford, 408 U.S.
104, 108 (1972); Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991). The
enforcement actions at issue were vacated for lack of notice in Gates & Fox (790 F.2d at 15657), Phelps Dodge (681 F.2d at 1193) and General Electric (53 F.3d at 1330).8
The Commission has not required the Secretary to provide an operator with actual notice
of the Secretary's interpretation prior to enforcement. Rather, the Commission has applied an
objective standard of notice, i.e., the reasonably prudent person test. E.g., Alabama By-Products
Corp., 4 FMSHRC 2128, 2129 (December 1982); Otis Elevator Co., 11FMSHRC1896, 1906
(October 1989), affd, 921 F.2d 1285, 1291 (D.C. Cir. 1990). The Commission has summarized
this test as "whether a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the specific prohibition or
requirement of the standard." Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990).
We note that Energy West has conceded that a violation occurred if active mining had
been only temporarily halted for repairs of the MMU. E. Opp'n to S. Mot. at 8. See MidContinent Coal and Coke Co., 3 FMSHRC 2502, 2504 (November 1981). Thus, depending on
the judge's conclusions regarding the interpretation and application of the ventilation plan
provision, the status of the longwall section at the time of citation could bear on whether a
violation occurred. In the event the judge determines that the Secretary's interpretation is not
reasonable, or if he sustains the operator's argument as to "lack of notice, he must determine
whether, at the time of citation, the longwall section had been only temporarily idled for repairs
as asserted by the Secretary (S. Br. at 11-12), or whether the section was idled for the entire shift,
as asserted by Energy West. PDR at 13.9

8

Chairman Jordan notes that, in General Electric, the court held that an agency's
interpretation may be reasonable and entitled to deference even though the interpretation
"would not be obvious to 'the most astute reader"' and might "diverge significantly from what
a first-time reader of the regulations might conclude was the ' best' interpretation of their
language. " 53 F.3d at 1327. The court deferred to the agency's interpretation because it was
" logically consistent with the language of the regulation[s)," but found that the interpretation
was "so far from a reasonable person's understanding of the regulations that they could not
have fairly informed GE of the agency's perspective." 53 F.3d at 1330. Although the agency
could require future compliance with its interpretation, the lack of fair notice led the court to
reverse the enforcement action taken in that particular instance. 53 F.3d at 1328, 1330.
9

We do not reach Energy West's objection to the judge's adoption of language from the
Secretary's cross motion in his decision. However, we note that such incorporation of
language is "questionable judicial practice. " ·Energy West Mining Co., 16 FMSHRC at 1419
n.8.

1318

UL
Conclusion
For the foregoing reasons, we reverse the judge's detennination that the plan provision is
unambiguous, vacate his decision, and remand this matter to the Chief Administrative Law Judge
for assignment to a judge for an evidentiary hearing. 10

10

Judge Lasher has retired.

1 319

Commissioner Marc Lincoln Marks, concurring in part and dissenting in part:
I concur in the result reached by my colleagues. I agree that the disputed plan
provision is ambiguous for the reasons set forth by them and that the judge's determination to
the contrary was erroneous. I also agree that the record before the judge contained disputed
facts material to determining the requirements of Energy West's ventilation plan and;
therefore, the judge inappropriately entered summary decision. See Energy West Mining Co.,
16 FMSHRC 1414, 1419 (July 1994). I agree with my colleagues that this case must be
remanded to the judge for a determination of whether the Secretary's interpretation of the
provision is reasonable and, thus, entitled to weight. 1
However, I dissent from my colleagues' view that, in addition to a determination that
enforcement of a ventilation plan is based on a reasonable interpretation of its requirements,
enforcement actions are subject to a separate "notice" requirement. In my view, the Secretary
can enforce ventilation plans based on reasonable interpretations of their requirements and that
such enforcement actions are not also subject to a separate "notice" requirement. Sewell Coal
Co. v. Federal Mine Safety and Health Review Comm.,n, 686 F.2d 1066, 1069 (4th Cir. 1982)
("Sewell"). In Sewell, the Fourth Circuit Court of Appeals held that Sewell's argument that the
Secretary' s interpretation, unknown to it at the time, should not be retroactively applied was
foreclosed by a number of Supreme Court decisions. Id. at 1069-70, citing NLRB v. Bell
Aerospace Co., 416 U.S. 267 (1974); NLRB v. Wyman-Gordan Co., 394 U.S. 759 (1969);
SEC v. Chenery Corp., 332 U.S. 194 (1947). The Fourth Circuit further held that ''retroactive
application of a novel principle expounded in an adjudicatory proceeding does not infringe the
rights secured by the due process clause." Sewell, 686 F .2d at 1070.
The Secretary is not prevented from enforcing a reasonable interpretation of an
ambiguous plan provision simply because the operator has relied on an alternative
interpretation; on the contrary, the Commission must give weight to a reasonable interpretation
by the Secretary, even if it is not the only one permitted by the language of the standard.
E.g., Sewell, 686 F.2d at 1069,· Secretary of Labor v. Western Fuels-Utah, 900 F.2d 318, 321
(D.C. Cir. 1990). Requiring pre-enforcement "notice" of a reasonable interpretation of a plan
provision would allow the operator to escape liability in cases of first impression. Due process
does not require the Secretary to enforce a reasonable interpretation of the ventilation plan
requirements only prospectively (i.e., only after providing "notice"). See SEC v. Chenery

1

The Senate committee report on the Mine Act states that because the Secretary "is charged
with responsibility for implementing this Act, it is the intention of the Committee, consistent with
generally accepted precedent, that the Secretary's interpretations of the law and regulations shall
be given weight by both the Commission and the courts." S. Rep.No. 181, 95th Cong., 1st Sess.
49 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 637
(1978).

1320

Corp., 332 U.S. at 202-03; Sewell, 686 F.2d at 1069. "[R]etroactive application of new
principles in adjudicatory proceedings is the rule, not the exception. And, agencies have broad
legal power to choose between adjudication and rulemaking proceedings as vehicles for
policymaking." Molina v. INS, 981 F.2d 14, 23 (1st Cir. 1992), citing SEC v. Chenery
Corp. , 332 U.S. 194 (1947).2

Further, I also believe that the "reasonably prudent person test" is inapposite in this
case. I do not address whether this test is ever an appropriate analytical framework for
"evaluat[ing] the fairness of the application of broad standards to particular factual settings."
Ideal Cement Co., 12 FMSHRC 2409, 2415 (November 1990) (emphasis supplied).
However, even assuming that the test is an appropriate analytical framework for broad
standards, the Commission here is confronted with a specific ventilation pl
rovision, not a
broad standard.

Marc Lincoln Marks, Commissioner

2

It is true, as pointed out by my colleagues, slip op. at 5 n.7, that in Molina the court noted
"[t ]here is no claim here that the federal definition exceeds the bounds that some other part of the
Constitution (say, the 'due process' clause) might set." Molina, 981 F.2d at 19. However, my
colleagues neglect to point out that the court went .on to note that it found "nothing
'fundamentally unfair' about [the federal] definition." Id

1 321

Distribution

Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Tana M. Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Suite 400
Washington, D.C. 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
Suite 600
Washington, D.C. 20006

1322

ADMINISTRATIVE LAW JUDGE DECISIONS

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

JUN 2 9 1995
LANCE A. PAUL,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. WEST 95-228-DM
WE MD 95-04

NEWMONT GOLD COMPANY,
Respondent

Gold Quarry
Mine ID 26-00500

ORPER OF DISMISSAL

Before:

Judge Feldman

This matter concerns a discrimination complaint filed by
Lance A. Paul pursuant to Section 105(c) (3) of the Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(c) (3). On May 23, 1995,
a Notice of Hearing scheduling this case for trial on August 15,
1995, in Elko, Nevada was sent to Paul via certified mail at
Paul's address of record. The notice was returned as unclaimed.
The respondent has advised that Paul is now living on an Indian
reservation in Nevada with his Native American spouse . However,
Paul's address is unknown.
Commission Rule S(c}, 29 C.F.R.
§ 2700.S(c), requires a complainant to promptly notify the
Commission and all parties of any change in address.
The respondent has filed a Motion to Dismiss Paul's
complaint in view of the fact that his whereabouts a~e unknown.
Issuance of an Order to Show Cause would serve no purpose given
the absence of a valid forwarding address.
Accordingly, under the circumstances herein, the
respondent's Motion to Dismiss IS GRANTED. Consequently, the
hearing scheduled in this proceeding IS CANCELED and the above

1323

captioned discri mination complaint IS DISMISSED with out
prejudice. The c omplainant may reopen his discrimination
complaint upon a showing of good cause.

---· -

£_.;;?
) ..3

...

Feldman
Administrative Law Judge

Distribution:
Lance A. Paul, 345-9 Ryndon, Elko, NV 89801 (Certified and
Regular Mail)
Charles W. Newcom, Esq., Sherman & Howard L.L.C., First
Interstate Tower North, 633 17th Street, Suite 3000, Denver,
Co 80202 (Certified Mail)
/rb

1324

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

1 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH.
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 94-639
A.C. No . 40-02934-03549

I

Mine No. 78
KELLYS CREEK RESOURCES INC.,
Respondent
DECISION
Appearances:

·Thomas A. Grooms, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for
the Petitioner;
Hollis Rogers, President, Kellys Creek Resources,
Inc . , Whitwell, Tennessee, for the Respondent.

Before:

Judge Weisberger

This case is before me based upon a Petition for Assessment
of Civil Penalty, filed by the Secretary (Petitioner) alleging a
violation by Kel lys Creek Resources (Respondent) of 30 C.F.R.
§ 75.388(a) (2).
Subsequent to notice, the case was scheduled and
heard in Chattanooga, Tennessee, on April 6, 1995.
Tommy
Frizzell testified for the Petitioner, and Hollis Rogers
testified for the Respondent. At the conclusion of the hearing,
Petitioner indicated he intended to file a brief . Respondent was
accorded the same privilege. Briefs were ordered to be filed
three weeks after receipt of the transcript.
The transcript was
received by the Commission on May 8, 1995. After requesting
extentions, Petitioner filed his brief on July 26 , 1995. No
brief was filed by Respondent.

1325

Findings of Fact and Discussion
Tommy Frizzell, an MSHA Inspector, was notified by the
Respondent on January 27, 1994, that a cut had been made into a
sealed area, and that the operator had withdrawn miners from the
area.
Frizzell went to the mine and was informed by Jerry
McGowan , the section foreman, that low oxygen was detected at the
cut-through.
According to Frizzell, the cut-through measured 3 feet wide,
and 6 to 8 inches high.
Frizzell indicated that the crosscuts
were 40 feet apart. He examined the ribs for test holes,
five crosscuts out by the cut-through, and did not see any
evidence of any test holes.
Frizzell issued a citation alleging
a violation of 30 C.F.R. § 75.388{a) {2) which, in essence,
provides that boreholes shall be drilled when the working place
approaches within 200 feet of an area of the mine not shown by
surveys that are certified.
Respondent stipulated to the fact of
the violation. Based on this stipulation and the testimony of
Frizzell, I find that the Respondent did violate Section
75. 388 {a) {2), supra .
Unwarrantable Failure
In order for a violation to be found to be the result of an
operator's unwarrantable failure, the Secretary must establish
that its actions constituted more than ordinary negligence and
reached the level of aggravated conduct (~Emery Mining Corp.,
9 FMSHRC 1997, 2203-2204 ( 1 987)) . According to Frizzell, on
June 11, 1990, Hol lis Rogers, who was the Respondent's president
on January 27, 1994, was cited for mining within 200 feet of an
adjacent sealed mine, and not having any boreholes in violation
of 30 C .F.R. § 75.1701, the predecessor of Section 75.388(a) (2),
supra.
Frizzell alleges that Hollis has had considerable mining
experience, including training of miners and rescue teams, and
therefore he should have known that in the time period at issue,
he was mining near an abandoned mine. Frizzell explained that
the dotted lines encircled in ~reen on Government Exhibit 5-A
depict a sealed area that abutted the area being mined on
January 27, 1994, that was not surveyed and was not certified.
In this connection, he noted that broken lines on mine maps are
universal symbols used by engineers to indicate areas that are
not certified to be accurate. Frizzell's testimony does not

1326

provide any specific factual foundation to support his conclusion
that broken lines on a mine map indicate areas not surveyed. The
legend on the mine map in issue does not indicate that the broken
lines symbol stands for unsurveyed areas . To the contrary, a
handwritten notation on the bottom of the printed legend
indicates that a broken line is the symbol for "line curtain."
Rogers testified that the broken lines on a mine map do not
necessarily indicate areas not certified . He testified, in
essence, that broken lines are used to indicate the point where
surveyors cannot enter any further . According to Rogers, the
broken lines depicted in the map at issue represent a gob area or
loose rock within the gob area .
Rogers testified that when the cut - through was made, he
thought he "was 90 feet away" (Tr. 124) .
Frizzell testified that he had asked McGowan, the section
foreman, why boreholes were not drilled in advance of the work.
According to Frizze l l, McGowan told him that he was told by
Rogers that "he didn ' t have to drill those test holes until he
got within 50 feet o f that area" (Tr. 39).
Based on the above facts, I conclude that Petitioner has not
established that the level of Respondent's negligence rose to the
level of aggravated conduct.
I thus find that the violation was
not a result of Respondent's unwarrantable failure.
Significant and Substantial
In essence, according to Frizzell, boreholes are to be
drilled in order to detect the presence of low oxygen in the
sealed area, which, if it were to escape in an unplanned cutthrough, could cause the death of miners. Also, boreholes are to
be used to detect methane in the atmosphere of the sealed area
which, if in an exposure range, could cause an explosion
resulting in fatalities.
Frizzell explained that at a point
6 inches outby the cut-through, ~he amount of oxygen detected
was 15 1/2 percent. He explained that a person exposed to an
oxygen level of 10 percent would become unconscious.
I find that accordingly, the violation here contributed to a
measure of danger to safety . However, in order for the violation

1327

to be considered significant and substantial it must be
established that there was a "reasonable likelihood" that the
hazard contributed to will result in an injury."
(Mat hies Coal
Company, 6 FMSHRC 1, 3-4 (January 1984)).
In United States Steel Mining Company . Inc., 7 FMSHRC 1125,
1129, the Commission stated 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 inj ury.' 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.
l.n.Q., 6 FMSHRC 1573, 1574-75 (July 1984).
Hence, it must be established by the Secretary that there
was a reasonable likelihood of an injury producing event, i.e.,
a fire, explosion, or exposure to low oxygen contributed to by
the lack of boreholes. An injury producing event can occur
attendent upon a cut-through into an area containing low oxygen
or methane in an explosive range. This event in turn depends
upon the manner to which the continous miner is being operated,
its distance to the sealed area, and the presence in the sealed
area of low oxygen and explosive methane. These factors all
operate independently of the failure to drill boreholes, the
violative acts herein.
I thus find that it has not been
established that an injury producing event was likely to have
occurred as a result of the violation herein .
I find that it
has not been established that the violation was significant and
substantial.
Penalty
I find that the level of Respondent's negligence herein was
only moderate . However, since the violative actions could have
led to unexpected exposure of miners to hazardous amounts of
methane and low amounts of oxygen, both of which could be fatal,

1328

I find that the violation was of a very high level of gravity.
On the other hand, the level of the penalty to be assessed should
be reduced taking into account its effect on the Respondent's
ability to continue in business for the reasons set· forth in
Kellys Creek Resources, 17 FMSHRC 1085, 1092, {June 29, 1995). 1
Taking all the above into account, I find that a penalty of $500
is appropriate.
ORDER
It is ORDERED that the order at issue be amended to a
section 104 (a) citation that is not significant and substantial .
It is further ORDERED that respondent shall, within 30 days of
this decision, pay a civil penalty of $500.

@~\/\ ~

K'vram Weisberger
Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite B-201, Nashville, TN 37215-2862
{Certified
Mail)
Hollis Rogers, President, Kellys Creek Resources, Inc., Route 4,
Box 662, Whitwell, TN 37397
(Certified Mail)
/ml

At the hearing of the case at bar, the parties stipulated to
the proof adduced in the earlier hearing between these parties,
Kellys Creek Resources. Inc., 17 FMSHRC, supra, as it relates to
the appropriateness of the penalty to the size of Kellys Creek's
ability to continue in business.
1

1329

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

AUG 3 1995
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 92-334-M
A. C. No. 23-01924-05520

I

v.
Fort Scott Ferti li zer Cullor, Inc.

FORT SCOTT FERTILIZERCULLOR, INC.,
Respondent

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 93 - 117 - M
A . C. No. 23-01924-05523 A
Fort Scott FertilizerCullor, Inc.

JAMES CULLOR, Employed by
FORT SCOTT FERTILIZERCULLOR, INC.,
Respondent

DECISION ON REMAND
Before:

Judge Feldman

These civil penalty matters, brought by the Secretary
pursuant to the provisions of the Federal Mine Safety and Health
Act of 1977 (the Act), 30 U.S . C. § 801 et. seq., were remanded by
the Commission on July 21, 1995. 17 FMSHRC
These matters
involve a citation and a withdrawal order issued by the
Mine Safety and Health Administration (MSHA) to Fort Scott
Fertilizer-Culler, Inc. (Fort Scott) on May 27, 1992, for alleged
violations of 30 C.F.R. § 56.14101. This mandatory safety
standard, in pertinent part, requires mobile equipment to "be
equipped with a service brake system capable of stopping and
holding the equipment with its typical load on the maximum grade
it travels." The Secretary, pursuant to section llO(c) of the
Act, 30 U.S.C. § 820(c), also seeks to impose a civil penalty

1330

against corporate agent James Cullar "for knowingly authorizing,
ordering, or carrying out" the violations of section 56 . 14101.
Specifically, these proceedings concern inoperable brakes on
a 30 ton "big" Euclid truck and a 15 ton "small" Euclid truck.
The respondents have stipulated to the inoperable brakes on these
trucks. They have also stipulated there was a reasonable
likelihood that the hazards contributed to by these conditions
could result in injuries of a reasonably serious nature.
(Tr. 12-18, 195, 212). However, the respondents contend the
brakes were intentionally disabled by truck drivers William
Burris and Timothy Ragland.
In my initial decision, I concluded there was sufficient
circumstantial evidence to support the respondents' contention
that brake tampering had occurred. 15 FMSHRC 2354, 2361
(November 1993). However, the Commission ordered me to
reconsider my finding of misconduct in view of my application of
a negative inference based on the Secretary's failure to provide
investigative reports or MSHA testimony concerning the validity
of the discrimination complaints Burris and Ragland filed with
MSHA.
In their complaints, Burris and Ragland alleged their
June 1, 1992, discharges were discriminatorily motivated by their
May 27, 1992, complaints of defective brakes .
As a consequence of my misconduct finding, I concluded
sabotage, which is intended to create hazards, is an anathema to
the Mine Act's goal of preventing unsafe conditions and should
not be given recognition. 30 U.S.C. § 801(e). Thus, I vacated
the defective brake citations holding that intentional disabling
of equipment, as distinguished from other employee misconduct
(e . g., a violation of a mandatory safety standard caused by an
employee's failure to follow company safety procedures) was an
exception to the strict liability application of the Mine Act.
15 FMSHRC at 2362-63.
In its remand, the Commission, citing, inter alia, its
decision in Ideal Cement Co . , 13 FMSHRC 1346, 1351 (September
1991), concluded the Mine Act imposes strict liability on
operators for the violative acts of its employees, even when such
acts involve "significant employee misconduct." Thus, the
Commission determined I e rred in treating intentional tampering
as a defense to liability under the Mine Act. 17 FMSHRC at ~-'

1331

slip op. at 4 . The Commission, however, also noted miner
misconduct is not imputable to the operator i n determining the
degree of negligence for penalty purposes . Id. at ~-' slip op.
at 5.
Having concluded tampering is not a defense, the Commission
reinstated the citation and order given the respondents'
stipulation concerning the defective condition of the cited brake
systems. The Commission remanded these matters for a decision
regarding the significant and substantial and unwarrantable
failure issues. The Commission also remanded the issue of the
personal liability of James Culler under section llO(c) .
Findings of Fact
The violations occurred on May 27, 1992, at
Fort Scott's limestone quarry in El Dorado Springs, Missouri.
Gary Cullor is President of Fort Scott, a close family
corporation. Culler's wife, Sally Cullor, is Secretary and
Treasurer of the corporation and a 100 percent shareholder.
Gary Culler's uncle, James Cullor, worked in a management
capacity at the quarry.
Burris and Ragland were employed by Fort Scott as quarry
truck drivers. Burris was hired on September 16, 1991. Ragland
was hired on March 26, 1992 . Both Burris and Ragland are
qualified interstate truck drivers. Each holds a certified
commercial driver's license (CDL) in the State of Missouri.
As CDL licensees, they are required to be familiar with the
operation and maintenance of trucks, including truck braking
systems.
(Tr. 90-92, 152-153).
Burris and Ragland became upset over the subsequent hiring
of Jerry Carpenter who, in addition to other duties, was a
welder.
(Tr . 117). Carpenter's salary was higher than the wages
of Burris and Ragland.
(Tr. 166). Burris "thought it was wrong"
and that he "deserved more (money]" · (Tr. 118). Ragland also did
not "think [Carpenter's higher salary] was right."
(Tr. 166}.
Burris and Ragland knew Fort Scott had to timely complete its
performance on a state job that it had bid for.
(Tr. 117, 166).

1332

Threats were made concerning some type of adverse action against
Fort Scott if pay raises were not received.
(Tr. 118, 166-168).
Burris and Ragland received small pay raises on May 18, 1992,
which they apparently considered inadequate.
Shortly thereafter, on Friday, May 22, 1992, Ragland
telephoned the MSHA off ice and spoke to Inspector Michael
Marler's supervisor. At that time, Ragland requested an MSHA
inspection because the quarry trucks reportedly had no brakes.
(Tr. 96, 165, 259, 278-279). Burris knew an inspector would soon
inspect the El Dorado Springs facility.
(Tr. 96). Despite
Ragland's May 22 MSHA complaint, Burris testified he did not
experience brake problems on the days immediately preceding
Marler's May 27, 1992, inspection.
(Tr. 106).
Burris and Ragland started hauling mud and water out of the
quarry pit at approximately 8:00 a.m~ on Wednesday, May 27, 1992.
Burris was driving the big Euclid and Ragland was operating the
small Euclid.
(Tr. 88). Burris and Ragland made several trips
into the pit to haul mud between 8:00 a.m. and 9:00 a.m. During
this period, th~ small Euclid became stuck in the mud.
(Tr. 96,
287-288) . Normal quarry operations were then suspended at
approximately 9:00 a.m. because the high loader was experiencing
steering problems.
(Tr. 31, 184). Contemporaneous with the high
loader breakdown, Burris and Ragland complained to James Cullor
that their truck brakes were not working. Although Culler
testified he did not observe any brake problems, Cullor told
Burris and Ragland to park their trucks by the work shed so the
trucks could be checked out.
(Tr. 287, 289-90).
Inspector Marler testified he arrived at the quarry at
approximately 10:00 a.m., shortly after the trucks were taken out
of service because of the high loader malfunction {Tr. 184,
258) . Marler asked to talk to the drivers of the haulage trucks
(Tr. 186). Marler spoke to Burris who told him the big Euclid's
brakes would not hold going down into the quarry. Burris stated
that he had told Jim Cullor who reportedly told Burris to keep
driving and not to complain so muph about the equipment.
(Tr.186). Marler tested the big Euclid and determined that the
brakes ~ould not hold the truck in gear on level ground.
Therefore, Marler issued 104(d) (1) Citation No. 4110164, citing
a violation of the mandatory standard in section 56.14101,
30 C.F .R. § 56.. 14101, for defective brakes on the big Euclid.

1333

Marler also spoke to Ragland who complained about the brakes
on the small Euclid.
(Tr. 215) . Consistent with Burri s'
complaint, Ragland informed Marler that he had reported the brake
problems to James Culler who did nothing about it .
(Tr . 216).
Marler determined the brakes would not stop the small Euclid on a
6 percent grade, even when unloaded. Consequently, Marler issued
104(d) (1) Order No. 4110167, citing a violation of section
56.1410i for ineffective brakes.
Although there were several maintenance problems on these
trucks that required attention, items requiring preventative
maintenance (e.g . , brake shoe replacement and replacement of one
leaking axle oil seal) must be distinguished from systematic
loosened slack adjusters on three of the trucks' four wheels .
For example, MSHA's examination of the big Euclid truck driven by
Burris revealed loosened slack adjusters on. the left front wheel
and the rear left and rear right wheel . See July 9, 1992,
termination of 104(d) Citation No. 4110164 issued by
Michael Marler. MSHA's findings are consistent with Fort Scott
truck mechanic Raymond Jenkins ' testimony that loosened slack
adjusters on three of the four wheels on the big and small Euclid
trucks accounted for the trucks' brake malfunctions .
(Tr. 32-36,
37-38, 49-49).
On June 1, 1992, Burris and Ragland were terminated by
Fort Scott because they reportedly did not have steel-toed boots.
(Tr. 164). Both subsequently filed discrimination complaints
pursuant to section lOS(c) of the Act. On July 14, 1992, MSHA
advised Fort Scott that it had determined that Burris and Ragland
had not been discriminated against.
Further Findings and Conclusions
The Primary Cause of Brake Failure
At the outset, it is helpful to explain the function of
slack adjusters. Slack adjusters are located on the inside of
each wheel. They consist of a bolt that can be tightened with an
ordinary wrench.
If slack adjusters are not properly tightened,
they prevent the brake shoe from contacting the brake drums.
(Tr. 206).
In view of the large diameter of the truck tires,

1334

slack adjusters can be easily tightened from a squatting position
without removing the wheels.
(Tr. 50)
Properly adjusted ,
they are fully tightened and then turned back one-half turn.
(Tr. 51) .
The slack adjustment procedure was described by the
respondent's truck mechanic, Raymond Jenkins, as being "real
easy'' (tr . 49}; "a. minute" to adjust (tr . 50 - 51}; and "there ain't
nothing to it, really." (Tr. 36).
Issuing MSHA Inspector Michael
Marler corroborated Jenkins testimony opining that "anyone could
walk up to [a slack adjuster) with a wrench and change [it] if
they want . 11
(Tr. 221) .
As previously noted, Jenkins, who was called to testify on
behalf of the Secretary, found loose slack adjusters on three of
the four wheels on the big and small Euclid trucks.
(Tr. 32-36,
37-38, 48-49). Marler's testimony was equivocal. . Marler
testified the slack adjusters were loose, but not loose enough to
prevent the shoes from contacting the drums (Tr . 206) . Marler
also conceded that loose slack adjusters on three wheels "could
have contributed" to the malfunctioning of the brakes.
(Tr . 301,
304). However, Marler also testified he did not determine to
what extent the slack adjusters were out of adjustment.
(Tr.
229; See also July 9, 1992, termination of Citation No . 4110164).

Jenkins testified the major reason why the brakes could not
hold the Euclid trucks on grade was the loosened slack adjusters.
(Tr. 38-39, 48) . Jenkins' opinion is consistent with Marler's
testimony that slack adjusters can be loosened to the point where
they would render the brakes ineffective.
(Tr . 221-222).
Accordingly, I credit the testimony of truck mechanic Jenkins
that the primary brake defects on the subject Euclid trucks were
the loosened slack adjusters.
Significant and Substantial
In its remand, the Commission requested I revisit the
question of significant and substantial noting that my initial
decision stated the respondents had stipulated "to the fact that
there was a reasonable likelihood that the hazards contr ibuted to
by [the defective brakes] could result in injuries of a
reasonably serious nature." 15 FMSHRC at 2355 (emphas i s added).

1335

However, the Commission emphasized that "could have" does not
satisfy the significant and substantial test in Mathies Coal Co .,
6 FMSHRC 1, 3-4 (January 1984), which requires a finding that the
hazard contributed to by the cited violation will result in
injury of a reasonably serious nature. 17 FMSHRC at~-'
slip op. at 7.
In evaluating whether a violation is properly designated as
significant and substantial, the likelihood of serious injury
must be viewed in the context of continuous exposure to the
hazard caused by the violation assuming the violation continued
unabated in the face of normal mining operations.
Southern Oil
Coal Co., 13 FMSHRC 912, 916-17 (June 1991); Halfway, Inc .,
8 FMSHRC 8, 12 (January 1986); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1473, 1574 (June 1984). Here, it is obvious the
defective brakes, that could not hold on multi-ton dump trucks
traversing up and down an open pit haulage road, posed a
substantial likelihood that serious or fatal injuries would
occur . Thus, the violations in question were properly designated
as significant and substantial.
Unwarrantable Failure

An operator has demonstrated an unwarrantable failure if the
operator's violation of the cited mandatory safety standard is
attributable to the operator's aggravated conduct. Such
conduct requires more than ordinary negligence or carelessness.
Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987). The
Commission has characterized "aggravated conduct" as conduct
that is inexcusable or not justifiable. Consequently, an
unwarrantable failure exists if the operator's conduct evidences
a "reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care. 11 Id. at 2003-04. Thus,
resolution of the issue of unwarrantable failure in this instance
is dependent upon whether the reported May 27, 1992, brake
complaints were made in good faith and ignored by James Cullor as
an agent of Fort Scott, or, whether the slack adjusters were
loosened as a result of misconduGt.

1336

Marler's testimony best describes the potential for
tampering by i ndividuals who are motivated to disrupt quarry
operati ons. Marler stated a slack adjustment is "a very simple
a djustment, it takes one wrench and a few seconds to do . 11
(Tr .
2 00) •

My initial decision noted strong circumstantial evidence of
this simple act of tampering . The complaining truck drivers had
the motive and opportunity to loosen the slack adjusters. Their
own testimony reflects they were disgruntled employees and
threats had been made about disrupting quarry operations.
Moreover, the complainants were responsible for routine truck
maintenance.
(Tr. 87). Marler testified one of the first things
a truck driver experiencing brake problems should check are the
slack adjusters.
(Tr. 29) . Yet Burris and Ragland, licensed by
the State of Missouri to drive eighteen-wheeler trucks, continued
to use their trucks without brakes without this rudimentary
check.
(Tr. 91).
In addition, the pattern of loosened slack
adjusters on three out of four whee l s on both trucks driven by
Burris and Ragland is further evidence of tampering.
Furthermore, Ragland's May 22, 1992, complaint to MSHA that
the quarry trucks' brakes were ineffective is also suspect for
several reasons. Significantly, despite complaining to MSHA that
Fort Scott ignored their brake complaints, Fort Scott truck
mechanic Jenkins testified Burris and Ragland never complained to
him about brake problems.
(Tr. 70) . Of greater significance is
Burris' testimony that the cited 30 ton Euclid's brakes 11 held 11
when he last operated the truck on May 25, 1992, during the
interim period between Ragland's May 22 MSHA complaint and
Marler's May 27 inspection.
(Tr. 106). I can find no reasonable
explanation short of tampering to account for this spontaneous
remission in the big Euclid's brake system .
Moreover, Burris' testimony lacked credibility. Although
Jenkins and Marler testified it is not uncommon for truck drivers
to adjust slack adjusters, Burris was reluctant to admit he knew
how to make such adjustments. ' (Tr. 26-27, 36-37, 92, 221) .
However, both Burr is and Ragland ultimately conceded they were
familiar with the maintenance function of slack adjusters . In
fact , Ragland told Marler 11 he knew a little bit about repairing
trucks."
(Tr. 200) .

1337

Marler•s testimony concerning the proximate cause of the
brake malfunctions must be viewed cautiously. Understandably,
Marler's witness demeanor evidenced he was not enamored with the
respondents• allegations that he was manipulated by Burris and
Ragland. Although Marler conceded loose slack adjusters on three
of the small Euclid truck's wheels could have contributed to
malfunctioning of the brakes, Marler chose to rely on other
factors to justify the purported complaints.
(Tr. 304). For
example, Marler was certain the sticking of the s-cam shaft on
the left front wheel of the small Euclid truck, which was stuck
in mud on the morning of his May 27 inspection, supported
Ragland's May 22 complaint and was unrelated to the muddy quarry
conditions. To support his conclusion, Marler speculated
that one application of mud on the s-cam shaft would act as
"a lubricant."
(Tr. 302}.
Given the circumstantial evidence of tampering discussed
above, the Secretary has failed to establish by a preponderance
of the evidence. that the May 27, 1992, brake complaints were
legitimate and/or communicated to James Culler.
In reaching this
conclusion, I am not unmindful that the Commission's remand
requested that I evaluate the credibility of the Burris and
Ragland allegations that previous brake complaints were ignored.
17 FMSHRC at~-• slip op. at 7. I find these allegations to be
self-serving and refuted by Jenkins who denied ever receiving
pertinent complaints. Moreover, as previously noted, the
legitimacy of these complaints is also undermined by Burris'
admission that the big Euclid's brakes held on May 25, 1992,
after Ragland had complained to MSHA about the quarry trucks'
brakes three days earlier. Furthermore, Marler's testimony that
James Culler ignored the May 27, 1992, complaints by Burris and
Ragland, made approximately 15 minutes before Marler•s arrival at
the quarry, is inconsistent with the evidence that the trucks
were parked by the work shed and not in service (although not
tagged out) when Marler arrived.
(Tr. 191, 287, 289-94).
Finally, it strains credulity that experienced truck drivers,
with longstanding serious concerns about their trucks' brakes,
would continue to operate their trucks with three out of four
loose slack adjusters.

1338

Thus, there is no adequate basis for concluding that
James CUllor•s conduct, attributable to Fort Scott, manifested an
unwarrantable failure. Similarly, the evidence fails to support
James Culler knowingly authorized, ordered or carried out the
violations of section 56.14101.
Finally, the Secretary has the burden of proving all
elements of an alleged violation of a mandatory safety standard.
Southern Ohio Coal Company, 14 FMSHRC 1781, 1785 (November 1992)
and cases cited therein. The Secretary's burden of proof in a
civil penalty case is not relieved by his prosecutorial
discretion in discrimination matters or his qualified privilege
against disclosure of investigatory files.
While I have not drawn any negative inferences, as the
trier of fact I am obligated to weigh the evidence presented.
The validity of the brake complaints is the linchpin of the
Secretary's unwarrantable failure case. MSHA Inspector
Harold Yount investigated the legitimacy of these complaints
which occurred five days prior to Burris and Ragland's discharge.
(Tr. 130). For reasons best known to the Secretary, the
Secretary opted not to call investigator Yount, who was present
in the courtroom assisting counsel, to support the alleged
complaints of Burris and Ragland, and to rebut the probative
circumstantial evidence of tampering.
(Tr. 7). The evidence the
Secretary has presented is inadequate to satisfy his burden of
proving the cited violations are attributable to Fort Scott's
unwarrantable failure.
Civil Penalty
As noted in the Commission's remand, in considering the
appropriate civil penalty to be assessed, employee misconduct may
be a relevant mitigating factor in evaluating the degree of an
operator's negligence. 17 FMSHRC at ~-' slip op. at 5.
Misconduct by rank-and-file employees is not imputable to the
operator for negligence purposes absent a showing the misconduct
was related to deficient training or supervision. Western FuelsUtah, Inc., 10 FMSHRC 256, 261 (March 1988), aff'd on other
grounds, 870 868 F.2d 711 (D.C. Cir. 1989); Southern Ohio Coal
Co., 4 FMSHRC 1459, 1464 (August 1982).
Although Fort Scott's

1339

salary decisions may have motivated the apparent tampering in
this case, there is no evidence of deficient training or a
significant lack of supervision . Thus, there is no basis to
impute any negligence to Fort Scott .
Accordingly, the imposition of strict liability, without
evidence of negligence on the part of Fort Scott, warrants
nominal penalties for the cited violations of section 56.14101.
Consequently, I am assessing a civil penalty of $10.00 for each
of the two violations.
ORDER

In view of the above, IT IS ORDERED that 104(d) (1) Citation
No. 4110164 and 104(d) (1 ) Order No. 4110167 ARE MODIFIED to
104(a) citations thus deleting the unwarrantable failure charges.
IT IS FURTHER ORDERED that Fort Scott Fertilizer-Cullor
Inc., SHALL PAY, within 30 days of the date of this decision, a
total civil pepalty of $20.00 in satisfaction of these two
citations. Upon timely receipt of payment of this $20.00
penalty, as well as receipt of payment of the $550.00 civil
penalty previously assessed in my initial November 18, 1993,
decision in this proceeding for Citation Nos. 4110166 and
4110171, Docket No. CENT 92-334-M IS DISMISSED.
IT IS FURTHER ORDERED that the case against James Culler,
as an agent of Fort Scott Fertilizer-Cullar, Inc., in Docket
No. CENT 93 - 117 - M ~s DISMISSED.

.. , . ····:::,_;:.

Jerold Feldman
Administrative Law Judge

1340

Distribution:
Colleen A . Geraghty, Esq. , Office of the Solicitor,
U. S . Department of Labor , 4015 Wilson Boulevard, Suite 400,
Arlington, VA 22203 (Certified Mail)
Gary W. Cullar, President, Fort Scott Fertilizer-Cullar, Inc.,
20th & Sydney, Fort Scott, KS 66701 (Certified Mail)
Mr. James Cullar, Fort Scott Fertilizer-Cullar, Inc.,
20th & Sidney, Fort Scott, KS 66701 (Certified Ma i l)

/rb

1341

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

AUG

4 1995

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 94-267
A. C. No. 15-07201-03628

HARLAN CUMBERLAND COAL COMPANY,
Respondent

Docket No. KENT 94-309
A. C. No. 15-07201-03630
C-2 Mine
Docket No. KENT 94-822
A. C. No. 15-08414-03619
Docket No. KENT 94-844
A. C. No. 15-08414-03620
Docket No. KENT 94-845
A. C. No . 15-08414-03621
H-1 Mine

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for the Secretary;
H. Kent Hendrickson, Esq., Rice and Hendrickson,
Harlan, Kentucky, f~r Respondent.

Before :

Judge Maurer

In these consolidated cases, the Secretary of Labor
(Secretary) has filed petitions . for assessment of civil
penalties, alleging violations by the Harlan Cumberland Coal
Company (Harlan Cumberland) of various and sundry mandatory
standards set forth in Title 30 of the Code of Federal
Regulations. Pursuant to notice, these -cases were heard before

1342

me on February 22-23, 1995, in London, Kentucky. The parties
filed posthearing briefs and proposed findings of fact and
conclusions of law on June 28, 1995, which I have duly considered
in writing this decision.
During the course of the trial of these cases, the parties
discussed and negotiated settlements concerning some of the
citations contained in these five dockets.
I will deal with and
dispose of these settled citations in this decision as well as
decide the remaining issues concerning the still contested
citations, in order, by docket number.
In addition to the arguments presented on the record in
support of the proposed settlements, the parties also presented
information concerning the six statutory civil penalty criteria
found in section llO(i) of the Act. After careful review and
consideration of the pleadings, arguments, and submissions in
support of the proposed settlements, and pursuant to Commission
Rule 31, 29 C.F.R. § 2700.31, I rendered bench decisions
approving the proposed settlements. Upon further review of the
entire record, I conclude and find that the settlement
dispositions which have been previously approved are reasonable
and in the public interest, and my bench decisions are herein
reaffirmed.
Docket No. KENT 94 - 267
The parties have agreed to settle five of the six citations
included in this docket as follows:

JQ ~.l.E.
CITATION N0 1

~

SECTION

3835289
3835291
4040231
4040189
4040190

7/30/93
7/30/93
8/13/93
9/28/93
9/28/93

75.400
75.400
75.330
75.220
75.400

1343

ASSESSMENT
$

412
412
147
147
204

SETTLEMENT
$

350
350
124
124
173

One citation remains to be decided in this docket which was
tried before me and was subsequently briefed by the parties.
Citation No. 3835295, issued on July 30, 1993, by ~SHA Inspector
Larry L. Bush, alleges a violation of the standard found at
30 C.F.R. § 75.370(a) (1) and charges as follows:
The operator has made a major ventilation change by
shutting down the Louellen side fan and taking it out
of service without prior approval from MSHA to do so.
This citation has an unbelievably long and tortured history,
beginning even before November 18, 1992, when MSHA Inspector
Robert Rhea issued an earlier citation, Citation No. 2996273, to
this operator. Inspector Rhea issued this earlier citation for a
violation of 30 C.F.R. § 75.310(b) (1) because the respondent was
operating the No. 2 mine fan (the Louellen side fan) from a power
circuit inside the mine rather than from an independent power
circuit as required by the mandatory standard.
For many years before this, the respondent had operated this
extra fan on the Louellen side under a waiver from the MSHA
District Manager based on the permissive language in a now
repealed mandatory standard (30 C.F.R. § 75.300-2(c} (1)). The
use of the word 11 should 11 in that standard rather than "shall" was
interpreted by MSHA to allow the District Manager to exempt
operators from the requirement that they have an independent
circuit for electrically powered mine fans.
In 1992, new regulations went into effect making independent
power circuits for mine fans mandatory rather then permissive.
On September 2, 1992, respondent applied for a modification of
this new standard to allow it to continue providing power to its
No. 2 mine fan from a power circuit inside the mine just as it
had done under waiver since 1984. While this request was
pending, Inspector Rhea issued Citation No. 2996273 on
November 18, 1992, for a violation of the new standard, 30 C.F.R.
§ 75.310(b) (l}.
However, taking note of the pending Petition for
Modification, the abatement of the citation was continually
extended, eventually up to July l, 1993.

1 3 44

On July 8, 1993, MSHA denied Harlan Cumberland's Petition
for Modification. Respondent at that point then had 30 days
within which to file an appeal (that is, request a f .o rmal hearing
at the Department of Labor) of that denial.
Meanwhile, back at the Harlan Field Office, Inspector Rhea
became aware that the modification petition had been denied and
he was informed by Mr. Clyde Bennett, the General Manager of
Harlan Cumberland Coal Company, that an appeal was going to be
filed. Rhea also states that at some point Mr. Bennett later
informed him that the appeal was going to be withdrawn. Harlan
Cumberland disputes this and in fact did file a timely appeal on
July 28, 1993, 2 days before the citation at bar was issued by
Inspector Bush .
In any event, Rhea, assuming that Harlan Cumberland was not
go ing to pursue the modification petition any further, sent
Inspector Bush out to terminate Citation No. 2996273.
This citatiop could have been abated by either shutting down
the No. 2 mine fan (the option taken) or installing a generator
or running a power line in from outside.
When Bush arrived at the mine on July 30, 1993, the No. 2
mine fan had been shut down. He therefore terminated Citation
No. 2996273. But one thing leads to another. The abatement of
Citation No. 2996273 was in its turn a violation of 30 C.F.R.
§ 75.370(a) (1) and the cause for the issuance of Citation
No. 3835295, the citation at bar. The shutting down of the
auxiliary fan was a major ventilation change done without the
prior approva l of the District Manager.
The violation itself is straightforward. The inspector
simply found that a major change in ventilation had taken place
because of the shutdown of the fan without the approval of the
District Manager, period.
The point of contention concerning this citation turns on
what really amounts to a matter of courtesy or perhaps it could
be called "custom and practice" . The operator's position is that
the citation at bar should not have been issued and the earlier
citation should have been extended rather than terminated, until

13 45

such time as the Petition for Modification was finally decided.
Inspector Bush himself allows that he would not have issued the
citation at bar had he known an appeal had been taken from the
initial denial of the operator's petition. But he did not know,
and no one at the mine bothered to tell him. If he had known, he
testified that h~ - would have just extended the abatement period
for Citation No. 2996273, with the No. 2 fan still running, as it
had since 1984.
The Secretary makes the excellent point in his brief that
with the appeal being mailed from Gray's Knob, Kentucky, on
July 28, 1993, it is highly unlikely that anyone at MSHA had
notice of the appeal until after the issuance of the citation at
bar on July 30, 1993.
This citation was eventually abated by the installation of a
temporary generator and, later, a permanent power line.
In the final analysis, I find a simple violation of the
cited standard is proven as charged.
As for the factual disputes in the testimony about who said
what to whom, I do IlQt. find that Bush or Rhea at any time ordered
the No. 2 fan shut down, although there undoubtedly was some
discussion about that option as well as the company's option to
continue to pursue their Petition for Modification. I also find
that neither Bush nor Rhea was aware of the company's appeal as
of July 30, 1993, the date the citation at bar was written. Had
either of them understood that an appeal was pending, the
citation would not have been issued as a matter of courtesy to
the operator or the existing "custom and practice" of that
office.
Nonetheless, the citation was in fact issued, 1t does state
a violation, and I am going to affirm it herein.
After consideration of all the statutory criteria in
section llO(i} of the Act, I find a civil penalty of $300 to be
appropriate.

1346

Docket No. KENT 94-309
The parties have agreed to settle four of the eleven
citations included in this docket as follows:

CITATION N0 1

12.All

3Q C.l.E.
SECTION

4040315
4040316
4040319
4040320

10/13/93
10/19/93
10/19/93
10/19/93

75.1101-1
$
75.1103-S{a) (2)
75.523
75 . 342 (a) (4)

ASSESSMENT
157
147
147
157

SETTLEMENT
$

120
110
110
120

Seven citations remain to be decided in this docket which
were tried before me and were subsequently briefed by the
parties.
Citation Nos. 4248531 and 4248533 were issued by MSHA
Inspector Lloyd Sizemore on July 29, 1993. Both allege nearly
identical violations of 30 C.F.R. § 75.603, which standard
provides, in relevant part, that 11 [tJrailing cables or hand
cables which have exposed wires . . . shall not be used."
Harlan CUmberland admits the violations of 30 C.F.R.
§ 75.603 (see proposed findings), but disputes the "significant
and substantial" special findings in each citation.
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation 11 of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard. 11
30 C.F.R. § 814(d) (1). 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 n~ture. 11 Cement Division.
National Gypsum Co., 3 FMSHRC 825 (April 1981}.

1347

In Mathies Coal Co., 6 FMSHRC l, 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 ~nder National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2} a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation;
(3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4 ) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that . ~he 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)
I

The trailing cables in question were providing power to the
two shuttle cars noted in the citations (GX-7 and GX-9} . These
shuttle cars move coal from the mine to the dumping point and are
continuously powered by these trailing cables.
Inspector Sizemore observed exposed conductor wires in both
of these cables. He testified that he could see approximately
l inch of ,the .exposed copper wire conductor in each of these two
cables. These cables carry 277 volts which Sizemore opined would
cause death or permanent disability from electrical shock if
contacted by a miner.
1348

The company•s position on these citations is that the cables
are on an automatic reel and are only occasionally manipulated by
hand. Also, Mr. Eddie Sergent testified on behalf of the
respondent that there are many safety features incorporated into
the cable to knock the power off the circuit if a short occurred.
He also contradicted the inspector's opinion regarding the
likelihood of someone being injured by the condition of these
cables as described by the inspector. Sergent testified that
miners do not normally handle these cables when the power is on,
but he conceded that someone could be injured if he touched an
exposed conductor on the cable.
It seems to me, however, that having miners working in close
proximity to an electrical hazard that might not be immediately
obvious to the casual observer, even if these cables are only
occasionally manipulated by hand is an accident waiting to
happen.
It is reasonably likely in my opinion that on one of
those "occasions," a miner could be reasonably expected to
contact the exposed wire and be electrocuted. Therefore, I
conclude that there was a reasonable likelihood that the hazard
contributed to by the violation herein would result in at least
an injury-producing event. Accordingly, I find that it has been
established that the violations found herein were "significant
and substantial" and serious.
Upon careful consideration of all of the ·statutory criteria
in section llO(i) of the Act, I assess a civil penalty of $1200
for each violation, or $2400 for the two.
Citation No. 4248534 alleges a "significant and substantial"
violation of the standard found at 30 C.F.R. § 75.520 and charges
as follows:
The start switch on the No. 2 off standard side ~l SC
Joy shuttle car, will not return to the position that
allows the holding circuit to be activated. The switch
stays in the start position ' therefore when the cable is
energized the car will start. This car is located on
the No. 4 section. This citation is being issued as a
contributing factor to imminent danger withdrawal order
No. 4248532. Therefore no abatement is set. Order
dated 07-29-93.

1349

After starting the motor, the start switch is supposed to
spring back to the neutral mode. The basic problem here was the
start switch would not return to the neutral mode once it was
activated. This created two separate potential problems: First,
if it was already energized and for some reason the shuttle car
operator could not hear the car running, he could unintentionally
start the car moving if he accidentally hit the foot switch,
which essentially· functions like the gas pedal on an automobile.
Secondly, in an emergency situation where the shuttle car
operator had some reason to use the panic bar or deenergization
device to stop the shuttle car, the car would start up again on
its own when the panic bar was released.
I find the violation to be proven as charged. The citation
was terminated upon the repair of the start switch, which brought
it into compliance with the mandatory standard. I therefore will
affirm the citation, as modified herein.
I agree .with the operator on the issue of gravity and the
"significant ~nd substantial" special finding. These shuttle
cars have an auto-braking system installed that even Inspector
Sizemore agrees would also have to be unintentionally released to
allow the car to move. To recap, two completely separate,
independent and unintentional actions would have to be taken,
that is, release the auto-brake lever and press the tram foot
switch in order to allow the shuttle car to move. In my opinion,
too many independent conditions have to co-exist for the car to
unintentionally move. It is possible, but that is not enough to
carry the Secretary's burden of proof on 11 S&S 11 • Accordingly,
Citation No. 4248534 will be affirmed as a non "S&S" citation and
assessed a civil penalty of $400 in accordance with
section llO{i) of the Act.
Citation Nos. 4040061, 4040439, and 4040440 were all issued
by Inspector Bush on August 30, 1993. All allege violations of
30 C.F . R. § 75.220 in the No. 1 and 2 left rooms off the No. 7
belt main off the 6th right pa~el.
Inspector Bush identified these three cited areas of the
mine where he found adverse roof conditions, which according to
the operator's extended cut plan, required the respondent to
limit the depth of the cut to a "distance compatible with the
prevailing conditions." That phraseology "prevailing conditions"
is the bone of contention here.
1350

Harlan Cumberland's extended cut plan allows extended cuts
up to 32 feet, but when adverse roof conditions are encountered,
they must limit their cuts in accordance with prevailing
conditions. This is a very subjective call, and as ·the
respondent points out in its brief, the foreman on the scene has
to make it, subject to an MSHA inspector's later disagreement.
And, of course, ~n case of a disagreement, the inspector's
opinion prevails, and the citation issues.
In connection with the area cited in Citation No. 4040061,
Inspector Bush observed heavy rib sloughage, heavy crushing
action on the pillars, rib rolls and the mine floor heaving.
With regard to the area cited in Citation No. 4040440, Bush
testified that there was heavy roof sloughage, stretch cracks and
the roof was loaded up with pressure. With regard to Citation
No. 4040439, Bush testified that like the other two areas, there
were adverse roof conditions which in his opinion precluded the
taking of deep cuts in this area of the mine.
The crux of these violations are that Bush measured these
deep cuts as 27 feet {Citation No. 4040061), 25 feet (Citation
No. 4040439) and 31 feet (Citation No. 4040440) whereas he
believes the prevailing conditions were such that the operator
should have limited the cuts to 20 feet in each of the three
instances. Whether the company gets a violation or not is
entirely dependent on whether or not the inspector believes
adverse conditions exist. Although initially the operator has
discretion under the plan to cut up to 32 feet, if the inspector
subsequently disagrees, the operator is issued a citation for
violating its roof control plan as happened here.
In this case, the respondent produced expert testimony on
the basic underlying issue of whether or not there were adverse
conditions extant in these areas which testimony I find somewhat
persuasive, at least on the issue of the quantum of negligence
the respondent is properly chargeable with.
Mr. Kenneth B. Miracle testit'ied that he has worked 40 years
in underground coal mines, including 3 years as an inspector for
MSHA's predecessor agency, MESA. I found him to be an expert in
roof control, and allowed him to state his opinion on the
ultimate issue in this controversy, i.e., whether the conditions
were so adverse so as to preclude the extended cuts that were
taken. He personally viewed the areas in question and was
1351

convinced that these areas were safely minable. His findings
contrasted with and contradicted Bush in several important
respects concerning the state of the floor and the ribs in the
cited areas.
I am nevertheless going to go along with Inspe·ctor Bush• s
finding that the ?Perator was in violation of its Roof Control
Plan because sufficiently adverse conditions existed in the cited
areas that should have alerted them to the requirement to cease
taking extended cuts. I am also going to find as a fact that
taking deep cuts in the face of these conditions exposed the
miners working and traveling in these panels to the hazards of
roof and rib falls because these deep cuts increased the pressure
on the roof and pillars which, in turn, increased the likelihood
of rib rolls which could reasonably be expected to lead to
injuries to the miners working in these areas. If the sloughing
of the mine roof or ribs had continued unabated, it is reasonably
likely that a serious injury would have occurred. I therefore am
going to affi-rm the three aforementioned citations as 11 S&S"
citations.
In assessing a civil penalty for these violations, however,
I find only "moderate" negligence vice "high" negligence
involved. I do not believe there is any evidence in this record
of "high" negligence. Rather, I find that the conflicting expert
opinions of whether or not the prevailing conditions were adverse
in the cited areas demonstrates the closeness and subjectiveness
of this call, and it is a judgement call made at the operator's
peril, with little or no objective criteria to rely on. After
considering all the statuary criteria in section llO(i) of the
Act, I assess a civil penalty of $500 for each violation, or
$1500 for the three.
Section 104{d) (1) Citation No. 4040438 (GX-13), issued
August 30, 1993, alleges a violation of the standard found at
30 C.F.R. § 75.220 and charges as follows:
Evidence indicates that the operator had in use a roof
drill on 004 section and did use this drill in heights
exceeding the ATRS reach. The maximum extended reach
of the ATRS is 94 inche~ and areas were measured at
107, 110, 105 inches from floor to roof, thus roof
bolting was done in unsupported roof inby support.

1352

The ATRS (Automated Temporary Roof Support) system is a
hydraulic roof support system physically attached to the roof
bolter and its purpose is to provide roof support while the bolt
machine operator and his helper install roof bolts. This is
accomplished when hydraulic jacks set a bar, 9 to 11 feet long
and 8 to 10 inches wide, under pressure against the mine roof
while bolting takes place.
As Inspector Bush explained, the ATRS mechanism must be
pressed against the mine roof in order to function as it was
designed. If it ·is not under pressure against the roof, it
essentially leaves the miners under unsupported roof.
Bush's testimony as to what he observed and the basis for
his conclusion that there was in fact, a violation of the cited
standard is as follows in pertinent part (Tr. 205-206):
All right. What seam height did you measure in
government Exhibit 13?
Q.

A.

I measured heights at 107, 110 and 105.

All right. And how high is the extended reach of
the ARTS system?

Q.

A. I had the bolter operator extend it as far out as
it would go and it would only expand to 94 inches.
Q.

Did you measure that?

A.

Yes

I

I d.i d.

Q. So, what was the obvious conclusion from that
measurement?

A. Any places they bolted--any cut places that the
miner had just cut they would have technically, or
basically be under unsupported roof while bolting.
And did Mr. Shuler tell you that they had in fact bolted
some places that were higher than 94 inches?

Q.

A.

Yes, he did.

Q.

Is that the basis for your issuing the Dl citation?

A.

Yes, sir.
1353

Q.

Based on his knowledge?

A.

Yes, sir.

Basically, Bush measured three places that had been bolted,
found that those floor to ceiling measurements were 107 , 110, and
105 inches, respectively, and that since each measurement
exceeded the 94 inch reach of the ATRS, he deduced that there
must have been a violation. He also deduced that no temporary
supports had been used.
Anticipating the operator's defense, Bush was questioned
about the use of temporary supports as follows (Tr . 207-208):
Q. Now, when you questioned Mr . Shuler about the use
of this 94 inch ATRS system in areas that were higher
than that, did you ask--did he indicate to you in any
way that they had set temporary supports in that area?
A.

No, sir.

He did not.

Q.

And you conclude they had not?

A.

Yes, sir.

Q.

And that's why you issued the citation?

A.

Yes, sir.

But on cross-examination, it was also brought out he had not
asked Shuler anything about temporary supports either (Tr. 208):
Q.
Did you ask him specifically if he had used
temporary support? You said you concluded that he
hadn't, but did you ask him?
A.
It's my memory, if it serves me correctly, there was no
temporary supports on the roof .
Q.

I mean, did you ask Mr. Shuler had he used any?

A . No. sir .
the drill.

But there was no temporary supports on

1354

I agree with the respondent that Bush's rationale for
issuing this citation, gleaned from his own trial testimony, is
all based on an assumption or deductive reasoning at best, that
an ATRS violation must have occurred at the three points he
measured. He arrived at this conclusion because:
(a) the
operator had in fact bolted some places that were higher than
94 inches and (b) Shuler volunteered nothing to him about the
use of temporary roof supports during the bolting process.
Clearly, he did not witness a violation, he assumed it, or to
cast it in a somewhat better light, deduced it from Shuler's
silence.
The fact that Bush saw no temporary supports on the drill on
August 30, 1993, really adds nothing to the inquiry since no
evidence of when the suspected violative drilling took place was
introduced into the record. Not only could Bush not remember
where he made the three measurements, he made them at places that
had already been bolted, adding confusion to when the roof
bolting had taken place.
The respondent, on the other hand, did produce credible
evidence of its general practice to use steel screw jacks if the
ATRS system cannot reach the ceiling, i.e., when roof ' heights
exceed the reach of the ATRS, as here. The Secretary has made no
showing in rebuttal that this general practice was not followed
whenever and wherever the bolting was performed at the three
places Bush measured.
Accordingly, I find that the Secretary has failed to carry
his burden of proof with regard to this citation and it will be
vacated herein.
Docket No. KENT 94-822
The parties have agreed to settle three of the five
citations included in this docket as follows:
3Q C.l~B.
ClTATlON NQ.

3835491
3835492
3835495

~

11/18/93
11/18/93
11/18/93

SECTXQN

ASSESSMENT

75.400
75.700
75.1100-2

$

1355

178
168
178

SETTLEMENT

$

178
168
178

Citation No. 3835490 alleges a "significant and substantial"
violation of the standard found at 30 C.F.R § 77.205(e} and
charges as follows :
The inclined steps leading from ground to drive level
on surf ace d~d not have side rails or guards to prevent
falling from side. Steps are approximately 5 ft high.
Inspector Bush testified that this stairway was
approximately S feet high and steep, being more like a ladder
than a stairway. He testified that these steps went almost
straight up and did not have toe boards to prevent a person's
foot from slipping between the steps.
Bush further testified that this mine was classified by MSHA
as being in BE status, that is, nonproducing, but some persons
were working. He stated that he found Mr. Bill Shuler, the mine
foreman and one other miner inside the mine working on the belt
entry setting timbers. He also observed footprints on this
stairway and a well-used pathway from the top of the stairway to
the mandoor going into the belt entry where he found Shuler and
the other miner working within 100 to 150 feet of this portal.
The stairway was not covered and was exposed to the weather,
causing a further slipping hazard. Bush opined that a miner
could suffer an injury to his back, neck, arms or legs if he fell
from this unguarded stairway. He recounted a tale of a disabling
back injury that had occurred to a friend of his who fell on his
own self-rescuer.
Bush served the citation on Bill Shuler, whom he believed
had probably travelled into the mine by way of these steps on the
date he issued this citation. Shuler told Bush that he (Shuler}
would have to get the construction crew back to the mine site to
install the handrails.
The operator's defense is that the steps were simply still
under construction. They were .not yet complete, but Mr. Sergent,
who testified for the operator, was unable to state how long the
steps had set there without the handrails.

1356

The operator also argues that the likelihood of an injury is
remote because of the limited exposure of miners to the hazard.
But I note that whether the footprints and foot traffic are
attributable to the construction crew or the miners, the risk of
injury is not reduced and the gravity remains the same. Any
person, miner or construction worker, using these steps is
exposed to the serious slip and fall hazard presented.
Accordingly, I am going to affirm the citation as issued and
assess a civil penalty of $168, as proposed by the Secretary.
Citation No. 3835496 alleges a "significant and substantial"
violation of the standard found at 30 C.F.R § 75.1106-5(a) and
charges as follows:
The oxygen gauge located at No. 4 belt tailpiece was
damaged and cutting pressure could not be determined.
At trial, Inspector Bush was unable to recall the nature of
the damage to the pressure gauge which allegedly caused it to be
inoperative. Consultation with his notes failed to shed any
light on the subject. All he could testify to was that the
oxygen gauge was somehow damaged and cutting pressure could not
be determined. But that is the allegation contained in the
citation, almost word for word, not the proof of the facts to
support that allegati?n. I pointed out to the witness and
counsel for the Secretary at the hearing, that this citation and
these factual matters have now been contested by the respondent
and they are entitled to factual proofs of these allegations.
It boils down to the proposition that the Secretary was
proving the fact of the violation by the fact that Inspector Bush
issued the citation. He told us that he does not issue frivolous
citations. If it is not a violation, he would not issue a
citation. Learning that provided little comfort for the
respondent and they moved to vacate the citation. That motion is
granted for failure of proof and .Citation No. 3835496 will be
vacated herein.

135 7

Docket No. KENT 94-844
The parties have agreed to settle six of the nine citations
included in this docket as follows:

3Q C.f.E.
CITATION NO.
3835498
3835500
4257801
4257802
4257803
4257804

~

11/23/93
11/23/93
11/23/93
11/23/93
11/23/93
11/23/93

SECTION
75.370(a)
75.370(a)
75.370(a)
75.370(a)
75.370(a)
75.370(a)

ASSESSMENT

$

168
168
168
168
168
168

SETTLEMENT

$

168
168
168
168
168
168

Three citations remain to be decided in this docket which
were tried before me and were subsequently briefed by the
parties.
Citation . No. 3835497 alleges a "significant and substantial"
violation of the standard found at 30 C.F.R § 75.202(a) and
charges as follows:
There is an area of loose broken roof approximately
20 ft X 20 ft 4 crosscuts inby the No. 3 belt power
center in the intake air course.
Although the roof was bolted, it had broken at an angle up
over the bolts so that the roof bolts were exposed. You could
see the bolts above the roof that had separated. The hazard was
the loose broken roof itself and the fact that its located in the
intake air course, which is the main escapeway. Because it is
the primary escapeway for the mine, it has to be examined at
least weekly when men are working at the mine.
Furthermore,
there were pumps and seals located inby the area of ·this roof and
when miners are working underground, a preshift examination would
have to be performed daily.
At the time this citation was written, the mine was in a BE
status, that is, it was not producing coal, but two men were
working underground nevertheless.

1358

The violative condition is unrebutted in the record. The
operator instead has focused on the likelihood of exposure to
this roof fall hazard that its two miners working under ground
woul d have faced. According to Bush, this mine has a history of
bad roof conditions and he testified that if this condition had
not been abated, .the roof would have collapsed. He went on to
sta te that if such a collapse occurred with a miner in the
immediate area, he would have expected the injury to be at least
of a disabling nature depending on the amount of material which
fell out of the roof.
While the miners exposed to the hazard created by this
broken and loose roof may have been limited in number, it
nevertheless subjected them to a serious likelihood of injury.
Accordingly, I am going to affirm this citation as issued and
assess the proposed civil penalty amount of $220.
Citation No. 3835499 alleges a "significant and substantial"
violation of the standard found at 30 C.F.R . § 75.202(a} and
charges as follows:
There is an area of unsupported roof in the entry
leading t0 the No. 2 and 3 seal. Area is approximately
20 ft. long and 10 ft wide .
This was a completely bare area of the roof, that is, one
lacking any kind of roof support. The cribs which had been
installed earlier down the middle of the entry, were rotten and
deteriorating.
This was also an area through which the miner examining the
No. 2 and 3 seals would have had to travel to make his
examination, and this roof hazard subjected him to at least a
reasonably likely threat of death or serious injury from roof

fall .
Accordingly, I find the violation proven as charged, will
a f f i rm t he citation as written and assess a civil penalty in the
a mount of $220 , as originally proposed by the Secretary.

1359

Citation No. 4257806 alleges a "significant and substantial"
violation of the standard found at 30 C.F.R § 75.400 and charges
as follows:
The power center, 4160 V.A.C., located at the start of
the slope to fan had accumulation of float coal dust
inside the power center and on the electrical
components therein.
Inspector Bush testified that he observed a heavy
concentration of float coal dust inside this power center which
was black in color and covered the component parts of the power
center, including the connecting leads, fuses, and insulators.
He further stated that the power center was turned on when he
observed the float coal dust and that it had various pieces of
electrical equipment connected to it, including a battery charger
and a conveyor belt power junction box.
Inspector Bush also described the various ignition sources
in the power ce~ter which in his opinion could cause this float
coal dust accumulation to explode or burn. He named the
transformers, bus bar, and input/output cables. He also
testified that there are electrical arcing sources of ignition as
well as heat sources inside this power center and he stated that
the turning on and off of the power center can produce electrical
arcing which would ignite or cause this float coal dust to burn.
Miners working in the vicinity of this power center or inby would
be exposed to fire and/or smoke inhalation hazards as well as a
potential explosion of this float coal dust. Bush described an
incident at another mine where a power center had caught fire and
burned for two hours, emitting smoke and fumes to such an extent
that caused the mine to be evacuated, and the miners to suffer
respiratory damage.
I conclude that the Secretary has established an "S&S"
violation of the cited standard. The inspector described a heavy
concentration of black float coal dust inside this power center
which contained a variety of ignition sources. If this condition
went unabated, I find it would be reasonably likely, in the face
of continuing use, that an explosion or fire would occur,
resulting in at least serious injury to the miners working nearby or inby this power center.

1360

Upon careful consideration of all of the statutory criteria
contained in section llO(i) of the Act, I find a civil penalty of
$168, as originally proposed by the Secretary, to .be appropriate,
reasonable, and in the public interest.
Docket No. KENT 94-845
The parties have agreed to settle both of the citations
contained in this docket on the following terms:

JQ C.E.R.
CITATION NO.

12.All

SECTION

ASSESSMENT

3835488
4257805

11/18/93
11/23/93

75.512
75.202(a)

$

*

Citation modified to delete

11

SETTLEMENT

178
987

$

89*
400**

S&S 11 special findings.

** The section 104(b) order issued in conjunction with this
citation, Order No. 3164779 is also vacated as a part of this
settlement.
Accordingly, I enter the following:
ORDER
Docket No. KENT 94-267
1. Citation Nos. 3835289, 3835291, 4040231, 4040189,
4040190, and 3835295 ARE AFFIRMED.
2. Respondent IS ORDERED TO PAY the assessed civil
penalties of $1421 to the Secretary of Labor within 30 days of
this decision. Upon receipt of payment, this case IS DISMISSED.
Docket No. KENT 94-309
1. Citation Nos. 4040315, 404316, 4040319, 4040320,
4248531, 4248533, 4040061*, 4040439*, 4040440* ARE AFFIRMED.

*

Modified negligence finding from "high" to "moderate" .

2.
Citation No. 4248534 IS AFFIRMED as a non
citation.

1361

11

S&S 11

3.

Citation No. 4040438 IS VACATED.

4. Respondent IS ORDERED TO PAY the assessed civil
penalties of $4760 to the Secretary of Labor within .30 days of
this decision. Upon receipt of payment, this case IS DISMISSED.
Docket No. KENT 94-822
1 . Citation Nos. 3835491, 3835492, 3835495, and 3835490 ARE
AFFIRMED.
2.

Citation No. 3835496 IS VACATED.

3. Respondent IS ORDERED TO PAY the assessed civil
penalties of $692 to the Secretary of Labor within 30 days of
this decision. Upon receipt of payment, this case IS DISMISSED.
Docket No. KENT 94-844
1. Citation Nos. 3835498, 3835500, 4257801, 4257802,
4257803, 4257804, 3835497, 3835499, and 4257806 ARE AFFIRMED.
2. Respondent IS ASSESSED civil penalties of $1616, and
having already paid $1008 of this penalty to the Secretary of
Labor previously, IS ORDERED TO PAY the remaining $608 to the
Secretary of Labor within 30 days of this decision. Upon receipt
of payment, this case IS DISMISSED.
Docket No. KENT 94-845
1. Citation No. 4257805 IS AFFIRMED. The section 104{b)
order issued in conjunction with this citation, Order No. 3164779
IS VACATED.
2. Citation No. 3835488 IS AFFIRMED as a non
citation.

1362

11

S&S 11

3. Respondent IS ORDERED TO PAY the assessed civil
penalties of $489 to the Secretary of Labor within 30 ·days of
this decision. Upon receipt of payment, this case IS DISMISSED.

~rrvv1~·
Roy U. !·Maurer
Administrative Law Judge

v !

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
372215-2862 (Certified Mail)
H. Kent Hendrickson, Esq., Rice & Hendrickson, P. 0. Box 980,
Harlan, KY 40831 (Certified Mail)
dcp

1363

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

AUG

4 1995

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 95-53
A.C. No. 46-05890-03502 MHF
Tug Valley Coal Processing

COAL PREPARATION SERVICES,
INCORPORATED,
Respondent
OEDER OF DISMISSAL

Appearance:

Javier I. Romanach, Esq., U.S. Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for the Petitioner.

Before:

Judge Weisberger

On April 27, 1995, this case was originally scheduled for
hearing for July 13, 1995, in Huntington, West Virginia, at a
site to be designated by a subsequent Order. On June 27, 1995,
this case was reassigned to me. On June 26, 1995, in anticipation
of the reassignment of this case to me, I convened a telephone
conference call with Javier I. Romanach, Esq., of the Office
of the Solicitor, representing Petitioner, and Sam Hood,
representing Respondent. The representatives indicated that they
were each amenable to having th~s case rescheduled and heard on
July 12, 1995. It was agreed that the hearing in this case would
take place on July 12, 1995. On June 27, 1995, a Notice of
Hearing was issued scheduling this case for hearing on Thursday,
July 12, 1995, at the following location: City Hall, Council
Chambers, 800 5th Avenue. Huntington, West Virginia. The Notice
indicates it was sent to Sam Hood, Coal Preparation Services,
Inc., P.O. Box 1237, 717 6th Avenue, Huntington, West Virginia
25714 (Certified Mail) . A Return Receipt for this notice is
postmarked July 12, 1995.

1364

On July 14, 1995, a Show Cause Order was issued directing
Respondent to show cause why a Default Order should not be
entered based on Respondent's failure to appear at the hearing.
On July 20, 1995, a statement was pertinent, as follows: "In
reference to your 7-14-95 Order to Show Cause, I went to the
hearing on Thursday, 7-13 and nobody was there."
I find that -Respondent has not established good cause why
the case should not be dismissed. My finding is based on the
following: 1) On June 26, 1995, Respondent's representative,
Sam Hood, agreed to the rescheduling of the hearing in the case
from July 13 to July 12; 2) On June 27, 1995, a notice was
issued, scheduling this case for hearing on July 12 at a
specifically designated site; 3) Respondent did not appear at
the hearing; 4) Respondent, in its Response to the Show Cause
Order, did not set forth any facts or assertions to explain why
he failed to appear at the hearing site on July 12, the date
agreed to on June 26, and set forth in the Notice issued on
June 27; and 5) Respondent asserted .in his Response that "I went
to the hearing on Thursday, July 13." He attached to the
Response a copy of their original Notice issued April 27.
However, this Notice did not designate a site for the hearing.
A specific site was only designated in the Notice issued June 27,
scheduling this case for hearing on July 12, 1995.

It is ORDERED that a default decision in this case be
entered in favor of Petitioner. It is further ordered that
within 30 days of this decision, Respondent shall pay a civil
penalty of $162.

.~Lr--

Avram Weisberger
Administrative Law Judge
Distribution:
Javier I. Romanach, Esq. Office of the Solicitor, U.S. Department

of Labor, Room 516, 4015 Wilson Blvd., Arlington, VA

22203

(Certified Mail)
Sam Hood, Coal Preparation Services, Inc., P.O. Box 1237,
717 6th Avenue, Huntington, WV 25714
(Certified Mail)
/ml

1365

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

AUG

4 1995

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

CIVIL PENALTY PROCEEDING
Docket No. YORK 94-73-M
A.C. No. 37-00181-05505
Construction Materials

CONSTRUCTION MATERIALS CORP.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Weisberger

This case is before me upon a petition for assess~ent
of civil penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Act) .
Petitioner has
filed a motion to approve settlement agreement and to dismiss
the case. A reduction in penalty from $645 to $516 is proposed.
I have considered the representations and documentation submitted
in this case, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Act.
WHEREFORE, the motion for approval of settlement is
GRANTED, and it is ORDERED that Respondent pay a penalty of
$516 within 30 days of this order .

&s~

Administrative Law Judge

1366

Distribution:
Gail E. Glick, Esq., Office of the Solicitor, U.S. Department of
Labor, One Congress Street, 11th Floor, P.O . Box 8396, Boston,
MA 02114
John W. Douglas, III, Vice President, Construction Materials
Corporation, 810 ~ish Road, Tiverton, RI 02878

/ml

1 367

PEDER.AL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW Jll>GES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG

7 1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JAMES RIEKE,
Petitioner

v.

DISCRIMINATION PROCEEDING
Docket No. LAKE
NC-DC 94-10
:

95-201-DM

Cleveland Mine
Mine ID 33-06994

AKZO SALT COMPANY,
Respondent
DECISION

Appearances :

Lisa A. Gray, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois
for Complainant;
William Michael Hanna, Esq., Squire, Sanders and
Dempsey, Cleveland, Ohio for Respondent

Before:

Judge Melick

This case is before me upon the complaint by the Secretary
of Labor on behalf of James Rieke pursuant to Section 105(c) (2)
of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801, et seq., the "Mine Act", alleging that the Akzo
Salt Company (Akzo) transferred Mr. Rieke in violation of Section
105(c) (1) of the Act. 1

1

Section 105(c) (1) provides as follows:

No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the
representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal or
other mine, or because such. miner, representative of miners
or applicant for employment is the subject of medical
1368

More particularly, Mr. Rieke state~ in his complaint filed
with the Mine Safety and Health Administration (MSHA) as follows:
I think Jim Bannerman is harassing me is (sic] because of
the safety report I wrote on him. He receiv.ed a D-1 from
that. This took place on the 10th of February 1994. He has
threatened me on my job and talks to me very loud and
abusive. Now on 3-31-94 Jim Bannerman gives me a paper that
states that ·I am disqualified on powder and on Eimco which
reads - Mr. Rieke over the past few months your attitude as
a powderman and its related work has reach [sic) the point
that it can no longer be tolerated you are being
disqualified as a powderman and Eimco operator as of
March 31st, 1994.
In his complaint before this Commission the Secretary states
in part as follows:
The Complainant was removed from his job as blaster on
March 31, 1994. The mine operator's stated reason for the
removal of the complainant from the blasting position was
the complainant's attitude.
The Complainant filed his complaint of discrimination on
May 2, i994. In that compliant, Rieke alleged that Jim
Bannerman, the complainant's foreman, was harassing him
because of a safety report that the Complainant filed
against Bannerman on February 10, 1994.
The Complainant was witness to Bannerman removing a _safety
tag from a piece of equipment before Bannerman ascertained
that the equipment had been repaired, and told Rieke and
another miner to use the equipment, on February 10, 1994.
The Complainant reported the incident to his safety
committeeman, the safety committeeman reported the incident
to MSHA. MSHA inspected Cleveland Mine and, after an

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

1369

investigation of the alleged violation, the inspector issued
Citation No. 4308683 on February 16, 1994, naming Bannerman
as the company agent who committed the violation.
The complainant suffered adverse action in that he was
demoted to a laborer, with a reduction in his hourly wage
because of his exercise of rights under Section 105 of the
Mine Act.
Factual Background

Complainant James Rieke testified that he is presently a
haul truck driver for Akzo and has been since he lost his job as
a powderman (blaster). He became a powderman in 1990 . In that
capacity he was responsible for scaling the faces loading the
"ANFO" explosive and shooting the faces . Powdermen were also
expected to fill-in for the Eimco front-end-loader drivers on
their breaks . This procedure is known as "breaking out the
Eimcos."
According to Rieke, on March 31, 1994 , he was breaking-in a
trainee as a new powderman and had five places to blast. In the
first location they were scaling the face when Production Foreman
Jim Bannerman approached and asked if he knew they had five
places to finish that day. He told Rieke that if they were not
completed before the end of the day "I will have something for
you". They reached the second place to be blasted around 10:30
that morning and found that this face also needed scaling . Rieke
called Maintenance Foreman Mike Decapite to obtain the mechanical
scaler but it was not available. Around that time Mine
Superintendent Matt Kajfez, Foreman Bannerman and miner's
representative, Dan Bierschwal appeared and asked what the
problem was. Rieke reported that the face needed scaling.
Kajfez told Bannerman to "handle it the way he saw fit". The
record does not sho~ how many faces Rieke had actually powdered
that day .
·'--'
At the end of the shift Bannerman asked Rieke for his""keys
to the powder truck and told him that he was being disqualified
as a powderman . Bannerman offered no explanation for the
disqualification .
Rieke subsequently received a letter of disqualification
signed by Bannerman and stating as follows:
Over the last few months your attitude as a powderman and
its related work has reach (sic] the point that it can no
longer be tolerated. You are being disqualified as a
powderman and Eimco operator as of March 31, 1994.
(Respondent's Exhibit No. 1)

1 370

The Secretary maintains that BannermaD's action on March 31,
in removing Rieke from the powderman job, was motivated by, and
was in retaliation for, Rieke's safety complaint on February 10,
1994, to his union safety committeeman and MSHA which resulted in
the issuance by the Secretary of a "Section 104(d) (l)" citation
to Akzo and naming Bannerman as the responsible agent. 2
According to Rieke, on February 10, 1994, his co-worker,
Paul White, observed a "down tag" on the powder rig. In spite of
that, Foreman Bannerman purportedly directed them to operate the
rig without determining whether repairs had been completed.
According to Rieke, Bannerman removed the "down tag", stating
that "we know the problem". Mine Superintendent Kajfez also came
by at that time and although apprised of the circumstances also
told Rieke and White to operate the rig . Both White and Rieke
continued to believe that it was unsafe to operate the rig with
the unrepaired hydraulic leak so Rieke reported this to his union
safety committeeman. According to Rieke when Bannerman learned
that he had called the committeeman he yelled at him saying "why
would you guys run it yesterday and not today?" Rieke responded
that it was because there was no "down tag" on it the day before.
The union representative subsequently re-tagged the equipment,
again taking it out of service and an inspector for the Mine

2

Section 104(d) (1) of the Act provides as follows:

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and
if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard,
and if he finds such violation to be caused by an unwarran~able
failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation
given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within 90
days after the issuance of such citation, an authorized·
representative of the Secretary finds another violation of any
mandatory health or safety standar~ and finds such violation to
be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator
to cause all persons in the area affected by such violation,
except those persons referred to in subsection(c) to be withdrawn
from, and be prohibited from entering, such area until an
authorized representative of the Secretary determines that such
violation has been abated.

1371

Safety and Health Administration (MSHA) subsequently appeared
and, based in part on the report by Rieke, issued Citation
No. 4308683 naming Rieke on its face. 3
Shortly after this incident Rieke was transferred to work
under Foreman Herb Kanzeg in a different section of the mine.
Rieke thought the. transfer was the result of "communications
problems" with Bannerman. Rieke maintains that driving the
Eimco's was not ~art of his job even though his job description
required him to perform "other work as assigned". Rieke
maintains, however, that such "other work as assigned" was to be
performed only when he had nothing else to do. Rieke testified
that he did not mind breaking out the Eimcos as long as he had
nothing else to do.
However, if he was in the midst of
powdering he did not believe it was appropriate for the company
to tell him to do something else. He asserts that they have the
right to assign other duties only if someone is ill or off work.
Rieke concedes that he did not like being pulled off his job as
powderman to break out the Eimcos.
Paul White testified that he was working with Rieke as a
powderrnan on February 10, 1994. On that date he and Rieke
arrived at the. face and found a tag on the powder rig. They
called Foreman Bannerman who observed the tag and told White to
nevertheless start the equipment. According to White, Bannerman
apparently did not see the hydraulic leak causing the problem and
told them to operate the rig. Rieke later reported this incident
to the union safety comrnitteman and was told to "down it" if it
was unsafe. They thereafter "downed it" and reported this to
Bannerman. According to White, Bannerman was "upset" that they
were not going to run it and raised his voice "quite a bit" at
Rieke. He finally just "gave up" and told White to take the rig
to the shop. White observed that there was a "personality
conflict" between Bannerman and Rieke and noted that Rieke did
not like to relieve the Eimco drivers. White also agreed that
3

The citation issued on February 16, 1994, states as
follows:
"On the day shift 2-10-94, according to two blasters, the
foreman, Jim Bannerman, was observed removing an out-of-order tag
from the No. 602 powder rig and instructed employees Jim Rieke
and Paul White to operate this machine without checking to see if
repairs had been completed. This piece of equipment had been
removed from service because of a crack in the work platform
lifting cylinder. The two employees used this elevated work
platform to load explosives at working faces in height ranging
from floor level to approximately 12 to 13 feet high. A fall
from this height could cause broken bones or dislocations. The
No. 602 powder rig has since been repaired. This is an
unwarrantable failure."
·

1372

Rieke was "just looking for trouble concerning Bannerman" but at
the same time Bannerman was "harder" on Rieke than on other
employees. Former powderman Steven Dean confirmed that Bannerman
was "harder" on Rieke than anyone else.
Union steward and an 18-year employee for Akzo,
Don Bierschwal, attended Rieke's first step grievance proceeding
in March 1994. According to Bierschwal, the only reason
Bannerman gave for the disqualification was Rieke's "attitude".
No one explained ~hat was meant by the term and Bierschwal was
unaware of any previous disqualification for "attitude" . In the
past, disqualification from a job had usually been based on
something like tearing up equipment and even then only after
several written reprimands. Rieke's purported refusal to break
out the Eimco's was not raised during the processing of tne
grievance as a basis for the disqualification. Bierschwal was
also present underground when Bannerman asked Rieke why he was
taking so long to scale the face. According to Bierschwal, Rieke
responded that it was because he was hand scaling. Bierschwal
note~ that Bannerman appeared surprised by Rieke's explanation
and admitted that he would not have called out mine
superintendent Kajfez, Baker and Bierschwal if he had known the
reason for Rieke's difficulties . Bannerman had apparently failed
to inquire.
Gregory Rub'ie, an Akzo electrician and former union steward,
also testified that he had never seen anyone at Akzo disqualified
because of "attitude" . Ruble also observed that Akzo's normal
disciplinary procedures were not followed in Rieke's case. It had
been the long standing practice to first provide counseling,
followed by a verbal warning and two written notices.
Ruble also attended the first step grievance proceedings
following Rieke's disqualification and heard the mine
superintendent state that Rieke's problem was that he was always
writing safety reports and requesting safety men and shop
stewards. According to Ruble, management representatives also
stated at the grievance proceeding that Rieke's problem was that
he "didn't want to work under certain conditions that he felt was
unsafe". Ruble also testified that Rieke's purported refusal to
break out the Eimco's was not brought up at the grievance as a
basis for his disqualification.
Production Foreman James Bannerman testified that his
problems began with Rieke on September 20, 1993, in regard to
breaking out the Eimcos. He diredted Rieke to break out an Eimco
but later saw it parked. Rieke purportedly stated that he
thought it was broken down. On September 22 Rieke again
purportedly failed to break out the Eimco•s. Bannerman told
Rieke that he wanted him to break out the Eimcos in the future
without being told.

1373

on March 31, 1994, Bannerman was acting as Rieke's foreman
when he observed that Rieke had by lO:oo a.m. powdered only one
place. He asked Rieke what the problem was since they had five
places to powder that day. Rieke purportedly responded that "we
will do what we can . " Bannerman maintains that he told Rieke
that he expected him to complete all five places or he would have
"something" for him. Bannerman testified that a powderman should
be able to powde~ an average of five rooms a day but admitted
that on some days they were able to powder only two rooms.
Around noon Bannerman noted that Rieke and his partner were
still working at only the second place to be powdered so
Bannerman called Mine Superintendent Kajfez, Bill Baker and Shop
Steward Bierschwal to talk with Rieke. According to Bannerman he
asked "why are we having a problem with you" and Rieke responded
because the rest of the guys are "suck asses". Bannerman
maintains that he then walked away. He claims that he never
heard Rieke say that the delay was caused by having to hand scale
the faces. Moreover, Bannerman testified that in any event in
his opinion the rooms did not need further scaling. Bannerman
testified that he decided to disqualify Rieke because of his
previous problems breaking down the Eimcos, for what he believed
was Rieke's work slowdown on March 31 and for his "attitude" in
referring to other employees as "suck asses". Bannerman
maintains that when he disqualified Rieke on March 31 he had no
knowledge that Rieke had made a safety complaint giving rise to
the MSHA citation naming Bannerman as a mine official responsible
for illegally removing an out-of-order tag on February 10, 1994.
Akzo ~ s Human Resources Manager, Russell Ryon, also attended
Rieke's second step grievance proceeding. Rieke stated at that
proceeding that ·it was necessary to make the places safe by hand
scaling and this was one reason why he could not complete his
work that day. Ryon recalled that Bannerman disagreed with
Rieke, maintaining that the places did not need scaling. Ryon
also noted that if Bannerman was named in the citation he would
have known that the February 10, 1994, citation had, in facj:.,
been issued. Plant Manager Bruce Higgins confirmed that, in
fact, as soon as they received the "(d) (1)" citation they began
an investigation in which he personally interviewed Bannerman.
The interview took place within a few days of the issuance of the
citation on February 10, 1994. 4

4

Subsequent to Rieke's disqualification as a powderman a
letter was placed in Bannerman's personnel file for his
connection with the violation charged in Citation No. 4308683.
He was also subsequently charged by the Secretary under
Section llO(c) of the Act for a "knowing" violation.

1 3 74

Analysis

The Commission has long held that a miner seeking to
establish a prima facie case of discrimination under section
lOS(c) of the Mine Act bears the burden of persuasion that he
engaged in protected activity and that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation coal Co., 2 FMSHRC
2786, 2797-2800 (1980), rev'd on grounds, sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); and
Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-18 (1981). The operator may rebut the prima
facie case by showing either that no protected activity occurred
or that the adverse action was in no part motivated by the
protected activity. If an operator cannot rebut the prima facie
case in this manner, it may nevertheless defend affirmatively by
proving that it would have taken the adverse action in any event
on the basis of the miner's unprotected activity alone. Pasula,
supra; Robinette, supra. See also Eastern Assoc. Coal corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
construction co., 732 F.2d 954, 958-59 (D.C. Cir, 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the commission's Pasula-Robinette test). Cf. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413
(1983)(approving nearly identical test under National Labor
Relations Act).
Within this legal framework and the undisputed evidence, it
is clear that Complainant Rieke engaged in protected activity on
February 10, 1994, as alleged when he filed a safety complaint to
Akzo management through his union safety committeemen concerning
the purported illegal and unsafe activities of his foreman,
Jim Bannerman, in removing a danger tag from the powder rig,
and, subsequently , by reporting the incident to an MSHA inspector
who subsequently issued a citation to Akzo for the violation.
The second element of a prima facie case of discrimination
is a showing that the adverse action was motivated in any part by
the protected activity. As this Commission noted in Chacon v.
Phelps Dodge corp., 3 FMSHRC 2508 (1981), rev'd on other grounds
sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir.
1983), "[d]irect evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect." The
Commission considered in that case the following circumstantial
indicia of discriminatory intent: · knowledge of protected
activity; hostility towards protected activity; coincidence of
time between the protected activity and the adverse action; and
disparate treatment. In examining these indicia the Commission
found that the operator's knowledge of the miner's protected
activity is "probabiy the single most important aspect of the
circumstantial case".

1375

In this case it is clear that Akzo management and, in
particular, Rieke's foreman, Jim Bannerman, knew of Rieke's
protected activity. Indeed, Rieke was named on the face of the
citation issued to Akzo on February 16, 1994. In addition, Akzo
plant manager, Bruce Higgins, testified that he conducted an
investigation within a few days of the issuance of the citation
which included an interview about the citation with Bannerman.
Human Resources Manager Russell Lyon, who testified that if
Bannerman had been named in the citation as he was, he would have
known of it fairly soon after it was issued . Finally, since both
Rieke and his co-worker were the miners Bannerman directed to
remove the "out-of-order" tag from the powder rig, were the
employees directed to operate the powder rig, and were named on
the face of the citation it would have been obvious that they
were the .source of information leading to the issuance of the
subject citation.
Significantly, Bannerman ' s denial at hearing that he knew of
the citation prior to his disqualification of Rieke is directly
contradicted by Akzo•s own witnesses, Plant Manager Higgins and
Human Resources Manager Russell Ryon. I conclude from this
evidence that not only did Bannerman have prior knowledge that
Rieke had been the source of information leading to the issuance
of the subject citation naming him (Bannerman) as a culpable
management official, but also that Bannerman tried to conceal in
his testimony the fact that he had such knowledge . This not only
demonstrates a lack of credibility in itself but also may be
construed as evidence of a guilty mind - - a further indicia of
discriminatory motive.
The credible evidence suggesting that Bannerman became angry
and yelled at Rieke after he learned that Rieke had reported the
unsafe powder rig to the safety committeeman demonstrates animus
and is another circumstantial factor pointing to discriminatory
motive. In addition, according to Gregory Ruble, the former
union steward who attended Rieke's first step grievance
proceeding, the mine superintendent stated at that proceeding
that one of Rieke's problems was that he was always filing-safety
reports and safety requests and asking for the shop steward.
Such evidence of hostility towards Rieke's protected activities,
which may reasonably be inf erred to include his safety complaint
on February 10, 1994, was not merely a circumstantial factor but
a direct factor pointing to discriminatory motivation .
As the Commission also noted in Chacon, coincidental timing
is another indication of illegal motive. Rieke's initial safety
complaint in this case occurred on February 10, 1994, and his
complaint to the MSHA inspector preceded the citation issued on
February 16, 1994. The disqualification of Rieke by Bannerman
took place on March 31, 1994 -- within six weeks .or less of the
protected activity.

1 376

Finally, there is credible evidence of disparate treatment.
According to Gregory Ruble, the former union steward at Akzo, he
had never previously seen anyone at Akzo disqualified for the
reason Akzo asserted in Rieke' s case, i.e. "attitude'~. Moreover,
Ruble observed that the normal disciplinary procedures were not
followed in Rieke's case. According to Ruble, it had been the
long standing practice to first provide counseling to an employee
presumably before taking action such as the job disqualification
here taken against Rieke. In addition, Rieke's testimony is
undisputed that the procedures for disciplinary action first
provided for counseling, then a verbal warning, two written
reprimands and then a final notice. Bierschwal also corroborates
this testimony.
Within the above framework of credible evidence, I therefore
conclude that the adverse action against Rieke was, indeed,
motivated at least in part by discriminatory reasons. Akzo
maintains however that it would have taken the adverse action
against Rieke in any event on the basis of his unprotected
activity alone, i.e. his refusal to break out the Eimcos, his
purported work slowdown on March 31, 1994, and for his "attitude"
in purportedly referring to other employees as "suck asses" .
These, of course, were the reasons cited by Bannerman at trial as
the underlying basis for his disqualification of Rieke. This
argument relates to an affirmative defense under the Fasula
analysis.
In Chacon the Commission explained the proper criteria for
analyzing an operator's business justifications for an adverse
action :
Commission judges must often analyze the merits of an
operator's alleged business justification for the
challenged adverse action. In appropriate cases, they
may conclude that the justification is so weak, so
implausible, or so out of line with normal practice
that it was a mere pretext seized upon to cloak
discriminatory motive. But such inquiries must be
restrained.
The commission and its judges have neither the
statutory charter nor the specialized expertise to
sit as a super grievance or arbitration board meting
out industrial equity. Cf. Youngstown Mines Corp.,
1 FMSHRC 990, 994 (1979). once it appears that a
proffered business justification is not plainly
incredible or implausible, a finding of pretext is
inappropriate. We and our judges should not
substitute for the operator's business judgment our
views on "good" business practice or on whether
a particular adverse action ~as "just" or "wise."
Cf. NLRB v . Eastern Smelting & Refining Corp.,

1 377

598 F.2d 666, (1st Cir. 1979). The. proper focus,
pursuant to Pasula, is on whether a credible
justification figured into motivation and, if it did,
whether it would have led to the adverse action
apart from the miner's protected activities. · If a
proffered justification survives pretext analysis
•.•• , then a limited examination of its substantiality
becomes appropriate. The question, however, is not
whether such a justification comports with a judge's
or our sense of fairness or enlightened business
practices. Rather, the narrow statutory question is
whether the reason was enough to have legitimately
moved that the operator to have disciplined the miner.
Cf. R-W Service System Inc. 243 NLRB 1202, 1203-04
(1979) (articulating an analogous standard).
In this case I reject Akzo's purported business reasons
for Rieke's disqualification as pretextual. First, none of the
reasons advanced by Bannerman can be believed because of his
established lack of credibility in denying knowledge of the
issuance of Citation NO. 4308683 prior to his disqualification of
Rieke. Second, the only reason initially given for Rieke's
disqualification was his "attitude". Even at Rieke's grievance
proceeding it appears that no explanation for this grounds was
furnished and "attitude" had never before in the memory of former
union steward Gregory Ruble been cited as a grounds for
disqualification. While there is some evidence that Rieke's
purported work slowdown may have been raised at one of the
grievance proceedings as a reason for the disqualification that
in itself may very well have been a protected activity in that
the delay in powdering faces appears to have been due to the
safety need for hand scaling. Significantly, according to former
shop steward Ruble these reasons were also not cited at the
grievance proceeding . It is also noteworthy that two of the
reasons Bannerman cited at trial - refusing to break out the
Eimco's and calling other employees "suck-asses" were also not,
according to the evidence, ever raised at the grievance
proceedings as a basis for disqualification.
Under all the circumstances I conclude that, indeed, Rieke
suffered discrimination in violation of the Act for his
disqualification from the job of powderman on March 31, 1994.
Accordingly, Complainant James Rieke must be returned to his
position as a powderman/blaster.
Ciyil Penalty
Considering the criteria under Section llO(i) of the Act, I
also find that a civil penalty of $2,000 is appropriate . Rieke's
disqualification was serious in its potential impact on the

1 378

exercise of miner's rights under the Act. Moreover this action
was obviously based on his protected activities and therefore may
be deemed to be the result of high negligence.
ORDER

Akzo Salt Company, Inc. is directed to immediately reinstate
James Rieke to his position as powderman/blaster. The parties
are further ordered to confer regarding any claimed damages and
to report by telephone to the off ice of undersigned on or before
August 25, 1995, as to whether such damages can be stipulated.
If such damages cannot be stipulated by that date, hearings
limited to the issue of damages will be held on August 31, 1995,
at 9:00 a.m. in Medina, Ohio. Inasmuch as issues regarding
damages have not been resolved, a final order regarding payment
of civil penalties will be deferred. This decision is
accordingly not a final decision. Boone v. Rebel Coal, 3 FMSHRC
1900 (1981).

\\)\
~\

~.\,, .l
\I

;
;

Mel\~k

Gary
Adrninistr%tive Law
703-756-6261

Distribution:
Lisa A. Gray, Esq., Office of the Solicitor, U. S. Department of
Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
William Michael Hanna, Esq., Squire, Sanders & Dempsey, 4900
Society Center, 127 Public Square, Cleveland, OH 44114
(Certified Mail) .
/jf
1 37 9

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

AUG 9 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
I

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-710-M
A.C. No. 45-03085-05512
Wallace Portable Crusher #1

WALLACE BROTHERS, INC.,
Respondent
DECISION
Appearances:

Jay A. Williamson, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington, for
Petitioner;
James A. Nelson, Esq., Toledo, Washington, for
Respondent.

Before:

Judge Amchan
Factual Background

On May 11, 1994, MSHA representative Rodney Ingram issued
two non-significant and substantial citations to Respondent
alleging violations of 30 C.F.R. §56.14107(a), which requires
the guarding of moving machine parts.
Citation No. 4129345
alleged that the standard was violated in that a 5-inch x 8-inch
gap existed in the guard of the self-cleaning tail pulley on
Respondent's portable crusher (Tr. 15-20). Citation No. 4129346
alleged that the back side of a v-belt drive was unguarded
(Tr. 2 2 - 2 8) .
Ingram asked Respondent's foreman, Dan Fisher, if two days
would be sufficient to abate these violations. Fisher indicated
that it would be sufficient. The inspector therefore set May 13,

1380

1994, as the date by which abatement or termination of the
violations was required (Tr. 20, 28) .
On June 8, 1994, Ingram returned to the Respondent's
worksite. Four citations issued the month before had not
been timely abated. With regard to two citations, Ingram
extended the abatement or termination date. For one, an
electrical grounding violation, Ingram accepted Respondent's
explanation that it had contacted an electrician, but that
the electrician had not been able to come out to the crusher
(Tr. 37).
Ingram also extended the abatement period for a
citation issued for a supervisor's lack of first-aid training.
He accepted Fisher's representation that he was having trouble
scheduling the class (Tr. 42).
Fisher told Inspector Ingram that he forgot about the
guarding citations (Tr. 38-40). Ingram issued Respondent
two section 104(b) withdrawal orders (Nos. 4129356 and 4129357)
for its failure to timely correct these violations. When Ingram
returned to the crusher on June 9, these violations were abated
(Tr. 43-47). MSHA subsequently proposed a $1,500 civil penalty
for each of the citations/section 104(b) orders 1 •
A

civil penalty of $1.300 is assessed for each
of the citations/section 104(b) orders

Respondent does not contest that the standards were violated
on May 11, 1994, nor t~at these violations were not corrected
within the period set forth in the original citations (Tr. 4-5).
Rather, it contends that the proposed civil penalties are too
high, considering the penalty criteria in the Act and MSHA's
regulations regarding penalty calculations at 30 C.F.R. Part 100.

1

Although the proposed penal'ty assessment lists only the
numbers of the section 104(a) citations, the document and
attached narrative clearly indicate that the penalties are
for the section 104(b) orders as well. Any confusion in this
resard was eliminated by the Secretary's May 5, 1995 prehearing
exchange.

1381

Wallace Brothers points to the fact that it purchased the
crusher on which the two violations occurred in 1966 (Tr . 84).
The crusher had been inspected by MSHA many times prior to . May
1994, and none of the inspectors had previously indicated that
the inside of the v-belt drive needed to be guarded. Respondent
does not know how long the gap in the tail pulley guard existed
prior to the citation (Tr. ,84- 85) .
Utilizing MSHA 1 s regulations for proposing civil penalties,
Respondent argues that penalties of $210 and $159 should be
assessed, rather than those proposed by the Secretary. However,
in a contested civil penalty assessment case, the Commission is
not bound by MSHA's penalty assessment regulations or practices .
The Commissi on assesses penalties de novo by applying the
statutory criteria set forth in section llO(i) of the Act to the
evidence of record, Sellersburg Stone Company, 5 FMSHRC 287, 292
(March 1983) .
Moreover, an operator's failure to timely correct a citation
warrants a substantially greater penalty than the citation
itself. This is reflected in section llO(b) of the Act, which
authorizes the Secretary to propose and the Commission to assess
a penalty of up to $5,000 a day for each day during which each
failure to correct a violation continues 2 •
The daily penalty for failure to abate orders provides a
powerful disincentive for ignoring the abatement requirement of
a citation or order. An unabated violation constitutes a
potential threat to the health and safety of miners, Legislative
History of the Mine Safety and Health Act of 1977, at page 618.
It is one thing to overlook an MSHA violation before a
citation or order is issued and another to ignore it after a
citation has been issued. Given the number of inspectors, the
Act relies, to a great extent, on the mine operator to discover
and correct safety and health hazards and to timely correct cited
violations . Particularly, in instances in which abatement is not
required immediately, it is critical that the operator abate

2 The

maximum daily penalty for a section 104(b) violation
was increased from $1,000 to $5,000 by Public Law 101-508,
Title III, §3102, (November 1990).

1382

within the reasonable time period set forth in the citation.
This is so because the inspector is unlikely to be present on
the day on which abatement is required.
Upon ~iscovering a failure to abate, an inspector must apply
a rule of reason in determining whether to issue a section 104(b)
order or to extend the abatement date, Martinka Coal Co . ,
15 FMSHRC 2452 (December 1993) . In the instant case, Inspector
Ingram gave Respondent the benefit of any reasonable doubt by
extending the abatement period for two citations. He accepted
at face value the excuses of Respondent 1 s foreman.
It certainly
was reasonable for him not to extend the abatement period for the
two citations for which Respondent had no excuse.
To assess a civil penalty of the magnitude suggested by
Respondent is to invite dilatory conduct by some operators in
timely abating citations and orders. A daily penalty, on the
other hand, serves as a warning that such conduct wi ll not be
tolerated either by MSHA or the Commission.
I therefore assess
a $1,300 penalty for each of the guarding citations/section
104(b) orders in this case .
I arrive at this figure by starting with the $50 singlepenalty assessment that MSHA would most likely have proposed
under section 30 C.F.R. §100.4. I conclude that this is an
appropriate penalty for the initial citations in this case
considering the criteria in section llO(i) of the Act . However,
I multiply this penalty by 26 days to account for Respondent ' s
failure to abate within in the time specified in the citations 3 •

3

I note that 30 C.F.R. §100 . 3(f) suggests that the only
consequence of an operator's timely failure to abate may be
the addition of 10 penalty points in computing the proposed
civil penalty. This suggestion, in some situations, may lead
to a result that is entirely inconsistent with the statutory
scheme of the Federal Mine Safety and Health Act. For example,
adding 10 points to a 30 point violation under MSHA's penalty
conversion table results in a penalty of $270, rather than $135.
This strikes the undersigned as inconsistent with section llO(b},
which contemplates penal i zing the operator for each day that it
fails, without sufficient excuse, to correct a violation after
the abatement period has expired .

1383

ORPER

Citation No. 4129345 and section 104(b} Order No . 4129356
are affirmed and a $1,300 civil penalty is assessed.
Citation No. 4129346 and section l04(b) Order No. 4129357
are affirmed and a $1,300 civil penalty is assessed .
The $2,600 in assessed civil penalties shall be paid within
30 days of this decision .

oiO~c~

Arth~r J. Amchan

Administrative Law Judge
Distribution :
Jay Williamson, Esq., U.S. Department of Labor,
Office of the ·solicitor, 1111 Third Ave., Suite 945,
Seattle, WA 98101 (Certified Mail)
James A. Nelson, Esq., 205 Cowlitz, P.O. Box 878,
Toledo, WA 98591 (Certified Mail}

/lh

1384

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINI STRAT IVE LA~ JUDGES
2 SKYL INE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGI NIA 22041

AUG 9 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
ASSOCIATED SAND & GRAVEL
COMPANY INC .
Respondent
I

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-25-M
A.C. No. 45 - 03300-05502
Docket No. WEST 95 - 50-M
A . C. No. 45-03300-05503

I

Butler Pit Wash Plant
DECI SI ON

Appearances:

Matthew L. Vadnal, Esq . , · Office of the Solicitor,
U.S . Department of Labor, Seattle, Washington;
Paul A. Belanger, Conference and Litigation
Representative, Mine Safety and Health
Administration, U. S. Department of Labor,
Vacaville, California, for Petitioner;
Brent Eddings, Safety Manager, Associated Sand
and Gravel Company, Inc., Everett, Washington,
for Respondent .

Before :

Judge Amchan

At the outset of the hearing in this matter, the Secretary
withdrew Citation No. 4341895 and the corresponding $500 proposed
penalty. This was the only item in Docket No. WEST 95-50-M .
Towards the end of the hearing, Respondent withdrew its contest
to the $50 penalty proposed for Citation No. 4341891 in Docket
No . WEST 95-25-M . Remaining are two $50 penalties p r oposed for
Ci t ation Nos . 4341893 and 4341894.
The f irst of these citations was issued becaus e a 110 volt
e l ectrical outlet in Respondent ' s maintenance shop was not
effectively grounded. The second was issued because the oil

1385

storage area on the outside of this sho~ was not posted with
signs prohibiting smoking and open flames (Tr. 30-37, 65).
Respondent does not dispute the existence of the violative
conditions (Tr. 65}.
It contends, however, that the citations
and proposed penalties should be vacated because the shop area
was not part of its mine and therefore not subject to MSHA
jurisdiction.
The MSHA inspection of the shop area at the Butler Pit
On July 12, 1994, MSHA Inspector James Hudgins issued the
instant citations at a worksite in Burlington, Washington. At
that site Respondent maintains a sand and gravel pit, facilities
for sizing aggregate, a wash plant to rinse material that is to
be used in the production of concrete, a ready-mix concrete plant
and an asphalt plant (Tr. 16-17).
Hudgins inspected the sand and gravel pit and the wash
plant.
He did not inspect the concrete or asphalt production
facilities because he concluded that they were not subject to
MSHA jurisdiction (Tr .. 18) . He decided to inspect the
maintenance shop because James Salley, Respondent's concrete
dispatcher, told him that mining equipment was repaired in this
building (Tr. 43, 65) 1 •
The maintenance shop is next to the asphalt plant,
approximately 100 yards from the sand and gravel pit (Tr. 43).
Hudgins observed a front-end loader partially inside this
building (Tr. 44-45).
Respondent's employees were fixing a horn
and a parking brake which Hudgins had cited at the wash plant
(Tr. 45) .

Respondent contends that Mr . Salley was not knowledgeable
about its mining operations and suggests that he may have
exceeded the scope of his authority in discussing the repair of
mining equipment with Inspector Hudgins (Tr . 59-60). However,
Respondent never contradicted Salley's statement to Hudgins that
mining equipment was repaired in the shop (Tr. 43).
I conclude
therefore that mining equipment was repaired in this shop on
occasions other than the day of the inspection .
1

1386

The maintenance shop was built to service the concrete and
asphalt production facilities at the site. Respondent contends
that very little work is performed on mining equipment in this
shop.
Most repairs on mining equipment are performed outdoors
or at Respondent's Everett, Washington maintenance facility
(Tr . 5 7 , 7 3 - 7 5 ) .
At Everett, Respondent has different maintenance facilities
for its mining and non-mining operations. This was done in part
to avoid having the same facility subject to inspection by MSHA
and the State of Washington's OSHA program (Tr. 73-75).
Respondent's maintenance shop is within the
jurisdiction of MSHA
In a recent case, the Review Commission held that a garage
used by an operator's sand and gravel mine and its asphalt plant
was subject to Mine Act jurisdiction, W. J . Bokus Industries .
.In.Q_,_, 16 FMSHRC 704 (April 1994).
I consider that decision to be
controlling in the instant case.
In W. J. Bokus, the garage was used primarily for the
support of the asphalt plant. However, employees of both the
asphalt plant and the sand and gravel mine used the garage to
store, repair and maintain equipment. Crushing and screening
equipment for the sand and gravel operation was also manufactured
in the garage.
The use of the garage by the mining operation in
W. J. Bokus appears to be more substantial than Respondent's use
of the maintenance shop in this case. However, I do not see this
as a factor which would enable me to distinguish the Commission
decision in that case from the instant-one . To the contrary, the
Commission decision stands for the proposition that if a facility
is used in support of mining activities to any extent, MSHA may
choose to assert its jurisdiction .
Miners employed by Respondent were at least potentially
exposed to the hazards created by the violations cited by
Inspector Hudgins. The legislative history of the Act states
that, "[w]hat is considered a mine and to be regulated under this
Act [shall) be resolved in favor of . .. coverage of the Act. 11
s. Rep. No. 181, 95th Cong., lst Sess . 14 (1977), Legislative

1387

History of the Federal Mine Safety and Health Act of 1977, at 602

(1978). Thus, I find that the maintenance shop at the Butler Pit
is subject to the Act.
ORPER
Docket No. WEST 95-50-M is DISMISSED. Citation
Nos. 4341893, 4341894 and 4341891 in Docket No. WEST 95-25-M
are affirmed. A $50 civil penalty is assessed for each of
these violations. These penalties shall be paid within 30 days
of this decision.

O~~L0--Art}/ur J. Amchan
Administrative Law Judge
Distribution:
Matthew L. Vadnal, Esq., U.S. Departmen~ of Labor,
Office of the Solicitor, 1111 Third Ave., Suite -945,
Seattle, WA 98101 (Certified Mail)
Brent Eddings, Safety Manager, Associated Sand & Gravel Co.,
Inc., P.O. Box 2037, Everett, WA 98202 {Certified Mail)

/lh

1388

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

AUG 1 0 1995
SECRETARY OF LABOR,

CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Docket No. CENT 95-1-M
A. C. No. 14-00164-05524

v.
Kansas Falls Quarry & Mill
WALKER STONE COMPANY, INC.,
Respondent
DECISION
Appearances :

Ann M. Noble, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, ~olorado,
fbr the Secretary;
Keith R. Henry, Esq., Weary, Davis, Henry,
Struebing & Troup, Junction City, Kansas,
for Respondent.

Before:

Judge Maurer
STATEMENT OF THE CASE

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
.e.t. .s..e.Q., the "Act," charging Walker Stone Company, Inc., with two
violations of the regulatory standards found in Part 56,
Title 30, Code of Federal Regulations . The general issues before
me are whether the respondent violated the cited regulatory
standards and, if so, the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act.
Pursuant to notice, the case was heard at Fort Riley,
Kansas, on March 14, 1995. At the hearing, Inspectors Curtis W.
Dement and Eldon E. Ramage testified for the Secretary of Labor.
Mr. David S. Walker, the President of Walker Stone Company, Inc.,
and Mr. Clifford Moenning, the plant foreman, testified for
respondent.

1389

STIPULATIONS
At the hearing, the parties entered the following
stipulations into the record (Tr 8):
1. Walker Stone Company, Inc. is engaged in the operation
of a limestone quarry and mill in the United States, and its
mining operations affect interstate commerce.
2 . David S . Walker is the owner and operator of Kansas
Falls Quarry and Mill Mine, MSHA I.D. 14-00164-05521.
3. Walker Stone Company, Inc. is subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977,
3 0 U. S . C . § § 801 t l ~ . ( 11 the Act" ) .
4.
matter.

The Administrative Law Judge has jurisdiction in this

5 . The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
respondent on the dates and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statement asserted therein.
6. The exhibits to be offered by respondent and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein .
7. The proposed penalties will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violations alleged in Citation Nos . 4332611 and 4409171.
9 . Walker Stone Company · is a limestone mine operator with
97,089 hours of production in 1993.

1390

10. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the
2 years prior to the date of the citations.
DISCUSSION. FINPINGS AND CONCLUSIONS
Citation No. 4332611
Citation No. 4332611, issued on November 16, 1993, alleges a
violation of the standard found at 30 C.F.R. § 56.14107 1 and
charges as follows:
The self cleaning tail pulley on the second
conveyor between the crusher and the surge bin was not
provided with a guard to protect persons from
contacting the moving parts that can cause injury. A
build up of material under the conveyor allows persons
to become with in less than 6 1/2 foot or (1.98) meters
of the underside of moving machinery.
Inspector Dement testified that he and Inspector Ramage,
accompanied by his supervisor, located an unguarded tail pulley
on a belt conveyor between the crusher and the surge bin. In his
opinion, this was a hazard because he thought it possible for a
person to get his clothing caught up in it, a coat sleeve, for
example.

30 C.F.R § 56.14107 provides:
(a} Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive,
head, tail, and takeup pulleys, flywheels, couplings,
shafts, fan blades, and similar moving parts that can
cause injury.
(b) Guards shall not be required where the exposed
moving parts are at least seven feet away from walking or
working surfaces.
1

/

1391

Dement also testified that he determined the bottom of the
unguarded tail pulley was about 6 1/2 feet off the ground. But
he allowed that the space between the ground and the tail pulley
had been closed due to spillage off the belt conveyor and that if
the spillage had been cleaned up, the tail pulley would have been
okay without the guard, because then it would have been at least
7 feet off the ground. In fact, if the spillage of crushed rock
off the conveyor, which he estimated to be somewhere in the
neighborhood of 24 inches thick, had been 6 inches less, the
citation would not have been issued and the pulley, which had
gone unguarded for the previous 24 years, would in all likelihood
still be unguarded.
Inspector Ramage testified in corroboration of Dement's
testimony and added that he had had a prior discussion with plant
foreman Moenning in June of 1993, wherein he told Moenning that
the 7 foot distance would have to be maintained in order to stay
in compliance with the standard. He stated that he had observed
the unguarded tail pulley many times, but had never cited it
because the build-up of crushed rock underneath it had never
placed the pinch point of the pulley within 7 feet of the ground
at the time he observed it. On the cited occasion, however, he
concurs that it was closer .than the 7 feet required by the
standard.
Mr. Moenning also testified on this point and agreed that
the distance between pulley and ground was about 6 1/2 feet or
between 6 1/2 and 7 feet. Moenning further opined that there is
no work area or walkway for employees in the vicinity of that
tail pulley, but he did state that the crushed rock spillage is
cleaned up every day using a Bobcat.
The preponderance of the evidence is to the effect that the
unguarded tail pulley was within 7 feet of the ground,
represented by the top of the spillage pile. It is also
uncontroverted that a person, operating a Bobcat, cleans up this
spillage on a daily basis, and thereby is exposed to the hazard
presented, however unlikely he might actually become entangled in
the tail pulley. The Secretary concedes the point that it is
unlikely. I would only add that in my opinion it is highly
unlikely that anyone would get entangled in this tail pulley, but
that is not relevant to the limited inquiry at bar.

1392

Accordingly, I find a violation of the mandatory standard as
cited and assess the proposed civil penalty of $50.
Citation No. 4409171
Citation No. 4409171 was originally issued as a
section 104 {d) (1) order, but was later modified to a (d) (1)
citation upon the vacation of the earlier {d} {1) citation on
which it was based. It was originally issued on June 30, 1994,
for an alleged . violation of the mandatory standard found at
30 C.F.R. § 56.14103(b) 2 and charges as follows:
The windshield of the light blue FlSO Ford pickup
was severely cracked. The cracked windshield impaired
the operators vision. The pickup is seldom used but
sun striking these cracks could temporarily blind the
operator. The plant manager had driven the pickup on
the afternoon of 6-29-94.
At times there were several customer trucks and a
company front-end loader in the area the pickup was
operated.
This is unwarrantable failure.
Inspector Ramage issued this citation to the operator
because the windshie l d was cracked in the subject pickup truck,
which obstructed the operator's view, in his opinion.

2/

30 C.F.R. § 56.14103(b) provides:
(b ) If damaged windows obscure visibility necessary for
safe operation, or create a hazard to the equipment
operator, the windows shall be replaced or removed.
Damaged windows shall be replaced if absence of a window
would expose the equipment operator to hazardous
environmental conditions which would affect the ability
of the equipment operator to safely operate the
equipment.

1393

The truck was operated at least once. a day in an area where
customer's trucks were also operating. A front-end loader also
operated in this area and there was a plant man that could be on
foot in the area as well.
There was a nonissue raised concerning the ownership of the
truck. Mr. Moenning claimed that it was his personal pickup
truck, given to him by Mr. Walker. However, a sign displayed on
the side of the truck said: "Walker Stone Co., Inc., Chapman,
Kansas."
In reality, it does not matter whose truck it is. Since it
is being used on mine property, for mine business, it is the
operator's responsibility to ascertain that it meets the
applicable mandatory safety standards.
The only genuine issue of material fact to be tried in
regard to this citation is whether or not the windshield was
cracked severely enough to be considered unsafe for operation.
Based on the evidence in this record, most particularly the
photographs of the truck (GX-6 and GX-7), which quite clearly
depict the damage, I conclude that it is insufficient to
establish that the windshield cracks noted by the inspector
impaired the operator's visibility to any significant extent. In
this regard, I also find Mr. Moenning's testimony that his vision
was not impaired when he drove the truck to be credible. I also
note that Inspector Ramage admitted that he never got into the
truck and looked through the windshield himself to determine
whether the cracks would affect the operator's visibility.
Accordingly, the citation fails of proof and will be vacated
herein.
ORDER
1.

Citation No. 4332611 IS AFFIRMED.

2.

Citation No. 4409171 IS VACATED .

1394

The Walker Stone Company, Inc. IS ORDERED TO PAY the
Secretary of Labor a civil penalty of $50 within 30 days of the
date of this decision.
3.

Law Judge
Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U. S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Keith R. Henry, Esq., Weary, Davis, Henry, Struebing & Troup,
819 North Washington Street, P. 0. Box 187, Junction City, KS
66441 (Certified Mail)
dcp

1395

PBDBRAL Jll:HB SAPBTY AID> llBALTB RBVXBll' COIOllSSXOll
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

AUG 1 4 1995
TEMPORARY REINSTATEMENT
PROCEEDING

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

Docket No. WEST 95-423-DM
TVX Mineral Hill Mine

v.

Mine I .D. 24-01145

TVX MINERAL HILL MINE,
Respondent
ORDER OF DISMISSAL
Before:

Judge Manning

The Secretary of Labor has moved to withdraw its application
for temporary reinstatement of Cody Cherry. The motion states
that Mr. Cherry no longer wishes to be reinstated to his previous
position at the mine because he has found other employment. The
motion further states that the Secretary may decide to pursue
back pay and a civil penalty in a separate discrimination
proceeding.
For good cause shown, the motion is GRANTED, and
this proceeding is DISMISSED.

Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
David C. Dalthorp, Esq., GOUGH, SHANAHAN, JOHNSON & WATERMAN,
P.O. Box 1715, Helena, MT 59624-1715
RWM

1396

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

AUG 1 5 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-165-M
A.C. No. 45-03208-05515
Shine Quarry

SHINE QUARRY INC . .
Respondent
DECISION

Appearances:

Cathy L. Barnes, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington,
for Petitioner;
Erwin P. Jones, Jr., Sequim, Washington, for
Respondent.

Before:

Judge Amchan
Background

On August 18, 1994, MSHA Inspector Wallace Myers issued
Imminent Danger Order/Citation No . 4341786 alleging that
Respondent violated sections 107(a} and 104(a) of the Act and
section 56.3200 of Volume 30 of the Code of Federal Regulations.
MSHA subsequently proposed a $315 civil penalty for this alleged
violation. The penalty was contested and this matter came to
hearing on June 8, 1995, in Seattle, Washington.
Section 56 . 3200 provides as follows:
Ground conditions that create a hazard to persons
shall be taken down or supported before other work
or travel is permitted in the affected area. Until
corrective action is completed, the area shall be
posted with a · warning against entry and when left
unattended, a barrier shai1 be installed to impede
unauthorized entry (emphasis added) .

1397

The August 18, 1994 inspe.ction
Respondent operates a basalt rock quarry on the Olympic
Peninsula, west of Seattle, Washington. The basalt is separated
from the quarry wall by drilling and blasting (Tr. 71, 103-04).
It is crushed, sized and then sold primarily to small local
contractors for use on private driveways and in the construction
of ornamental walls (Tr . 111). There is no evidence that any of
the rnine's product is sold outside of the State of Washington
(Tr. 111) .
When Inspector Myers arrived at the quarry on August 18,
1994, he observed one of Respondent's employees operating a
Caterpillar front-end loader approximately 14 to 20 feet from
the quarry wall. The loader operator was clearing rocks off of
a roadway on the quarry floor (Tr. 14-15, 38-39, 63, 89-90).
The quarry wall is approximately 700 feet long and from
50 to 70 feet high (Tr. 16, 71). Respondent had blasted sections
of this wall on ·August 12 and on August 17, 1994 (Tr. 41, 104,
109, 118). On the day of the inspection Myers observed several
large boulders on the qu~rry wall which he considered unstable.
He also observed some smaller rocks dribbling down the slope of
the wall for approximately a minute (Tr. 15-34).
Beneath the newly blasted areas were "muck piles" which are
ramp-like projections extending out from the wall approximately
30 to 50 feet {Tr. 45, 119-20, Exhs. P-7, 8 and 9, R-2 and 3) .
In some areas there were indications that a muck pile had been
disturbed by some of Respondent's equipment (Tr. 38, · P-8).
Inspector Myers concluded that the unstable boulders precented
an imminent danger to the front-end loader operator and any other
miner who might go near the quarry wall. He therefore issued
section 107(a) order/section 104(a) Citation No. 4341786.
In response to this order, Respondent erected a barricade
of rocks (Tr. 47, Exh. P-7). On the day after the order/citation
was issued, Respondent's driller/blaster Lloyd Fultz drilled
four holes and then blasted one large boulder off the quarry wall
(Tr. 126-28). On August 22, 1994, Inspector Myers returned to
the quarry and the citation/order was terminated (Tr. 124-25) .

1398

Respondent's Quarry is Subject to the Mine Act
Respondent argues that because it sells only to local
contractors who construct driveways and ornamental walls, it
is not engaged in interstate commerce and thus is not subject
to the Federal Mine Safety and Health Act. However, Respondent
buys parts and supplies from a firm in Portland, Oregon, and uses
Caterpillar brand equipment (Tr. 113-14), which is generally
manufactured in the State of Illinois.
I find these factors
alone sufficient to establish MSHA jurisdiction, United States v.
pye Construction Company, 510 F.2d 78, 83 (10th Cir. 1975).
Congress intended to exercise its authority to regulate
interstate commerce to the "maximum extent feasible" when it
enacted the Mine Act, Jerry Ike Harless Towing. Inc. and Harless .
.I.n.c....... 16 FMSHRC 683 (April 1994); ll......S..... v. ~' 985 F.2d 265,
267-69, (6th Cir. 1985). Thus, if Respondent's quarry falls
within the scope of the commerce clause, it is subject to MSHA
jurisdiction.
1

Purely local activity falls within the commerce clause if
it affects interstate commerce, Wickard v. Filburn, 317 U. S. 111
(1942) .
Indeed, regardless of the strictly local nature of a
particular business, Congress can regulate its affairs on the
basis of the class of activity in which it engages, Perez v.
United States, 401 U.S. 146 (1971).
In enacting the Federal Mine Safety and Health Act, Congress
found that "the disruption of production and the loss of income
to operators and miners as a result of coal or other mine
accidents or occupationally caused diseases unduly impedes and
burdens commerce," 30 U.S.C. § BOl(f). Thus, regardless of the
local nature of its business, Respondent is subject to the Act
simply by virtue of the fact that it is engaged in mining.
The evolution of Supreme Court cases since Wickard v.
Filburn has brought virtually every commercial activity in the
United States within the purview · of the commerce clause. This
trend continues despite the recent decision in Vnited States v.
Lopez, 514 U.S. ~-' 131 L.Ed 2d 626, 115 S Ct ~- (1995).
In
Lopez, the Court invalidated the Gun-Free School Zones Act of
1990 on the grounds that it exceeded congressional authority
under the commerce clause~

1399

Chief Justice Rehnquist stated in th~ opinion of the court
that to determine whether an activity affects interstate commerce "the proper test requires an analysis of whether the
regulated activity 'substantially affects' intersta~e commerce,"
131 L.Ed 2d at 637. However, it is clear that the decision rests
on the proposition that the invalidated statute has nothing to do
with "commerce" or any sort of economic enterprise, 131 L.Ed 2d
at 638, 642 (Chief Justice Rehnquist}, and 653 (Justices Kennedy
and O'Connor, concurring). I therefore conclude that the
decision has no bearing on whether a mining operation, even one
which is purely intrastate in scope, is subject to the Act .
Thus, as was the case before United States v. Lopez, Respondent
falls within the commerce clause and is covered by the Federal
Mine Safety and Health Act.
The Substantive Issue Presented
Respondent's President, Clifford Larrance, arrived at the
quarry on August 18, shortly after Inspector Myers departed from
the mine (Tr. 87) . Larram:e contends that t he quarry wall did
not create a hazard to persons because the muck piles prevent any
loose material on the . wall from reaching any miner who works on
the pit floor (Tr. 92-93, and 100-101, testimony of Lloyd Fultz}.
The muck piles consist of loose, unconsolidated material which
absorbs the energy of any rocks that may fall, preventing them
from rolling or bouncing down to the pit floor (Tr. 92-93).
The essence of this case is whether, in view of the muck
piles underneath the recently blasted areas, the condition of the
quarry wall was shown to crea~e a hazard to persons 1 • As this is
a subjective judgement, the question under Commission law-is
whether a reasonably prudent employer familiar with the mining
industry and the protective purposes of the standard would have
recognized that the condition of Respondent's quarry wall posed a

Respondent's driller/ blaster, Lloyd Fultz, testified about
a rock that "looked pretty bad" at first glance but upon close
examination "wasn't that bad" (Tr. 105). From this one might
conclude that a particular boulder did pose a potential hazard to
persons on the pit floor. However, without evidence as to why
Respondent's muck pile was inadequate to protect miners on the
quarry floor, I decline to draw such an inference.
1

1 400

hazard to persons on the pit floor, Ideal Cement Company,
12 FMSHRC 2409 (November 1990).
It is a normal condition to have loose material on a quarry
wall after blasting (Tr . 65). MSHA does not require that all
such material be taken down before miners are allowed to work
below it. Thus, before finding an operator in violation of
section 56.3200, it is only proper that conditions be shown to
pose a danger from an objective standpoint.
Given the instant record, I find that the Secretary has not
established a violation of section 56.3200. I therefore vacate
Citation No. 4341786 and the proposed penalty. Although
Inspector Myers considered the quarry wall hazardous, he has
limited training and experience in ground control and related
disciplines (Tr. 6-8, 57, 66). I do not regard his opinion as
representing the standard of care of a reasonably prudent mine
operator in this case.
In view of what appears to be an honest difference of
opinion as to the safety of Respondent's quarry, the Secretary
must do more than presen~ the opinion of a non-expert inspector
to meet its burden of proof under a general standard such as
section 56.3200. For example, in Cyprus Tonopah Mining,
15 FMSHRC 367 (March 1993), the Commission upheld a violation of
this standard where the Secretary's case was supported by the
testimony of a mining engineer regarding the stability of the
operator's wall.
Much of the testimony in this matter, which appears to be
relevant at first glance, has little bearing on the validity of
the citation. For example, there was some discussion as to
whether the muck pile had been disturbed and whether the loader
operator would have been closer to the quarry wall than he was
when observed by Inspector Myers.
I conclude that the only issue is whether the Secretary has
shown that the muck piles were insufficient to protect employees
from loose material on the quarry wall. Since I find that he has
not done so, it does not matter how close the loader operator, or
other employees, may have come to the muck pile. There is no
evidence that would support a ~ind~ng that any person went on top
of the muck pile, had reason to go on the muck pile, or that any

1401

muck pile was disturbed at a time when the ·portion of the quarry
wall above it posed a hazard2.
ORDER

Citation No. 4341786 and the corresponding proposed penalty
are VACATED.

e~

Administrative Law Judge

Distribution:
Cathy L. Barnes, Esq., U.S. Department of Labor,
Office of the Solicitor, 1111 Third Ave., Suite 945,
Seattle, WA 98101 (Certified Mail}
Erwin P. Jones, Jr., Esq., 441 W. Washington,
P.O. Box 1419, Sequim, WA 98382 (Certified Mail)

\lh

. 2A muck pile was apparently disturbed with a Caterpillar
shovel on or before August 12, 1994 (Tr. 38, 72-74) .

1402

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

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

AUG 1 6 1995
CIVIL PENALTY PROCEEDING
Docket No. CENT 95-16-M
A. C. No. 25-01065-05519
Pit No. 2

FRI CK SAND & GRAVEL, INC.
Respondent

I

DECISION

Appearances:

Kristi L. Floyd, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, and
Dennis J. Tobin, Conference and Litigation
Representative; Mine Safety and Health
Administration, Grand Junction, Colorado, for the
Secretary;
Thomas E. Frick, President, Frick Sand & Gravel,
Inc., McCook, Nebraska, for Respondent.

Before:

Judge Maurer
STATEMENT OF THE CASE

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section lOS(d) .of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et.~., the "Act," charging Frick Sand & Gravel, Inc., with two
violations of the regulatory standards found in Part 56,
Title 30, Code of Federal Regulations. The general issues before
me are whether the respondent violated the cited regulatory
standards and, if so, the appropriate civil penalty to be
assessed in accordance with section llO{i) of the Act.
Pursuant to notice, the case was heard at Colby, Kansas, on
June 1, 1995. At the hearing, Inspector Steve Ryan testified for
the Secretary of Labor. Mr. Thomas Frick, the President of Frick
Sand & Gravel, Inc., testified for respondent.

140 3

STlPUUT:IONS

At the hearing the parties entered the following
s tipul ations into the record (Joint Ex. No.- 1) :
1. Frick Sand & Gravel, Inc. is engaged in mining and
selling of sand and gravel in the United States, and its mining
oper ations affect interstate commerce.
2.
Frick Sand & Gravel, Inc. is the owner and operator of
Pit No. 2 Mine, MSHA I.D. No. 25-01065.
3 . Frick Sand & Gravel, Inc. is subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §§ 801 .e.t. .s..e.Q . ("the Act").
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The subject citations/orders were properly served by a
duly authorized representative of the Secretary upon an agent of
respondent on the dates and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by respondent and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein .
7. The proposed penalties will not affect respondent's
ability to continue in business.
8. The operator demonstrateu good faith in abating the
violation relating to Citation No. 4332411.
9. The operator did not abate the violation in Citation
No. 4332414 in a timely manner and a 104(b) order was i ssu ed.
The vio l ation was subsequently abated .
10. Fri ck Sand & Gravel, I nc . is a small mine op era tor with
15, 7 4 6 h ours of production in 1993 .

1404

11. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citations.
DISCUSSIQN, FINPINGS AND CONCLUSIONS
Citation No. 4332411
Citation No. 4332411, issued on March 21, 1994, alleges a
violation of the standard found at 30 C.F.R. § 56.14100(b) 1 and
charges as follows:
The brake lights on the Cat 966C F.E.L. were not
operational. The wiring had been broken and seemed to
have been that way for some time. Defects on machinery
that affect safety shall be corrected in a timely
manner to prevent the creation of a hazard to a person.
Mr. Frick admits the brakes lights were inoperative and also
admits that that is a ·violation of 30 C.F.R. § 56.14100(b).
Accordingly, I find a violation of the mandatory standard as
cited and assess the proposed civil penalty amount of $50.
Citation No. 4332414
Citation No. 4332414, issued on March 22, 1994, alleges a
violation of the standard found at 30 C.F.R. § 56.18010 2 and
charges as follows:
Neither the pit foreman or any of the employees
have been trained in first aid. Selected supervisors_
and all interested employees shall be trained in first
aid to help minimize as much as possible the severity
of possible injuries at the pit.
30 C.F.R. § 56.14100 {b) p~ovides:
Defects on any equipment, machinery, and tools that
affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons.
1

2

/

30 C.F.R. § 56 . 18010 provides:
Selected supervisors shall be trained in first aid.
First aid training shall be ' made available to all
interested employees.
/

1405

Mr. Frick admits his pit foreman di~ not have the required
first aid training. He also admits that that is a violation of
30 C.F.R. § 56.18010 .
His only problem with this citation is that the inspector
did not give him enough time to get his foreman trained, given
the paucity of evening training classes in their area of the
country.
A woman teaches the first aid course on an irregular basis
in the evenings, based on demand for it. That is, if she
schedules a course, but only two or three persons enroll, she
cancels and reschedules the course at a later date. This
happened many times in this situation according to Mr. Frick.
I am going to affirm the citation, but reduce the proposed
civil penalty in this instance from $195 to $50, based on the
fact that I find credible Mr. Frick's claim that he did the best
he could to get the first available evening first aid class set
up for his pit foreman.
ORPER
1.

Citation Nos. 4332411 and 4332414 ARE AFFIRMED.

2. Frick Sand & Gravel , Inc . IS ORDERED TO PAY the
Secretary of Labor a civil penalty of $1 00 within 30 days of the
date of this dec i sion .

~fN'.~··
Ro~

1

n.~

Maurer
Adrnfri·s trative Law Judge

14 0 6

Distribution:
Kristi L. Floyd, Esq., Office of the Solicitor, U. S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Dennis J. Tobin, Conference and Litigation Representative,
U. S. Department of Labor, Mine Safety and Health Administration,
764 East Horizon Drive, Room 226, Grand Junction, CO 81506
(Certified Mail)
Thomas E. Frick, President, Frick Sand & Gravel, Inc.,
P. O. Box 589, McCook, NE 69001 (Certified Mail )
dcp

1407

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

AUG 1 7 1995:
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
I

CIVIL PENALTY PROCEEDING
Docket No . CENT 95-112-M
A.C. No. 41-03698-05515-A

v.
Tarrant Aggregates Corp.
ROBERT CODNER, Employed by
TARRANT AGGREGATES
CORPORATION,
Respondent

DECISION
Appearances:

Mary K. Schopmeyer, Esq., Office of the
Solicitor, U.S. Department of Labor,
Dallas, Texas, for Petitioner;
Jim Minter, Esq., Fort Worth, Texas,
for Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 820(c), charging
the respondent with two alleged "knowing" violations of certain
mandatory safety standards fou~d in Part 56, Title 30, Code of
Federal Regulations. The respondent is charged as an agent of
the mine operator while employed as a plant operator. The
respondent contested the alleged violations, and a hearing was
convened in Fort Worth, Texas.

140 8

Issues
The principal issue presented in this case is whether or
not the respondent knowingly authorized, ordered, or carried
out the alleged violations. If he did, the next question presented is the appropriate civil penalties to be assessed against
the respondent taking into account the civil penalty criteria
found in Section 110(a) of the Act .
.Applicable Statutory and Regulatory Provisions
l.

The Federal Mine Safety and Health Act of
1977, P.L. 95-164.

2.

Section llO(c) of the 1977 Act, 30 U.S.C.
§ 820(c).

3.

Commission Rules, 29 C.F.R.

§

2700.1,

~ ~

Discussion
Section 104 (d) (1) 11 S&S" Citation No. 4321326, issued at
9:25 a.m., on January 4, 1994, cites an alleged violation of
30 C.F.R. 14107(a), and the cited condition or practice is
described as follows:
The V-belt drive for the horizontal masonry
conveyor belt was not provided with a guard.
The V-belt drive is located approx. five feet
from ground level and there was an employee
shoveling in that area at the time of inspection.
The plant foreman stated that he knew the guard
was off and had records dated on September 25,
1993, that the guard was off.
Section 104 (d) (1) "S&S" Order No. 4321327, issued at
10:40 a.m., on January 4, 1994, cites an alleged violat.ion of
30 C.F.R. 56.14107(a), and the cited condition or practice is
described as follows:
The guard provided for the tail pulley on the
over-size conveyor belt had a hole cut in the
east side fourteen inches by 8 inches exposing

1409

the self cleaning tail pulley. The tail pulley
is located approx. three feet from ground level
and employees walk directly beside the pulley
two to ten times daily. The plant foreman stated
that he knew the hole was in the guard and records
showed the guard had been wrote up on 9-25-93 .
This is an unwarrantable failure.
Upon entering their respective appearances in this matter,
and in the course of a pre-hearing bench conference prior to
the presentation of testimony from witnesses who were present
in the courtroom, including one subpoenaed witness, counsel
for the parties informed me that they proposed to finalize a
settlement in this matter and they filed a joint motion and a
settlement agreement for my consideration (Tr. 9-10).
The parties were afforded an opportunity to present arguments in support of the proposed settlement. The parties agreed
that the respondent's employer is a small sand and gravel pit
operator with a total of 38 employees at two plants. The No. 1
plant where the respondent worked had two employees and the
respondent supervised one employee. Respondent's counsel stated
that the respondent was an hourly employee earning $10 an hour,
and that he is married with several children and is their sole
support. Counsel asserted that the payment of the full amount
of the proposed civil penalty assessments will adversely impact
financially on the respondent (Tr. 18-28).
With respect to section 104(d) (1) Order No. 4321327, the
petitioner's counsel stated that upon further investigation it
has been concluded that the evidence does not support a "knowing"
violation of the cited mandatory safety standard found at
30 C.F.R. 56.14107(a). Under the circumstances, counsel asserted
that the section llO(c) action predicated on that order has been
vacated by MSHA.
The petitioner asserted that after further review and
consideration of the respondent's financial status and the six
statutory civil penalty criteria found in section llO(i) of the
Act, it has determined that the initial proposed civil penalty
assessment of $1,200 for section 104(d) (1) Citation No. 4321326

1410

is unduly burdensome to the respondent. Under the circumstances,
the petitioner agreed to modify the assessment and reduce the
proposed penalty to $500 for the alleged violation.
Inspector Ricky J. Horn, who was present in the
courtroom, and who issued the citation and order, expressed his
approval of the proposed settlement disposition of this matter
(Tr. 30) .
MSHA

The respondent has agreed to pay a civil penalty assessment
of $500, in settlement of Citation No. 4321326. He agreed to
pay an initial payment of $100, with four (4) additional monthly
installments of $100, due each 30 days thereafter, until the
total amount of $500 is fully paid (Tr. 37-38).
Conclusion
After careful review and consideration of the pleadings
and arguments in support of the proposed settlement disposition
of this case, I rendered a bench decision granting the joint
motion and approving the settlement (Tr. 37). My decision in
this regard is herein re-affirmed. I conclude and find that the
settlement disposition is reasonable and in the public interest.
I take note of the fact that the respondent is employed by a
small sand and gravel pit operator, is the sole support of his
family through hourly wages, timely abated the conditions and
presented some mitigating circumstances associated with the
cited conditions as part of his answer in this proceeding. Under
all of these circumstances, and pursuant to Commission Rule 31,
29 C.F.R. 2700.31, the joint settlement motion IS GRANTED, and
the settlement IS APPROVED.
OEDER
In view of the foregoing, IT IS ORDERED as follows:
1.

The proposed civil penalty assessment associated
with Section 104(d) (1) "~&S" Order No. 4321327,
January 4, 1994, 30 C.F.R. 56.14107(a), IS DENIED
and IS DISMISSED.

1411

2.

The respondent Robert Codner shall pay a civil
penalty assessment in the amount of $500 in
satisfaction of section l04(d) (1) "S&S" Citation
No . 4321326, January 4, 1994, 30 C . F.R.
56 .14107 (a) .

3.

The respondent Robert Codner shall make an initial
payment of $100 within thirty (30} days of the date
of this decision and order.
Payment shall be by
check or money order made payable to the Mine Safety
and Health Administration.

4.

After payment of the first installment, the
respondent Robert Codner shall make additional
payments to MSHA in four (4) equal installments
of $100, each due within thirty (30) days of the
previous payment, until the full amount of $500 is
paid.

The payments shall include a reference to the date of this
decision and order approving settlement and requiring payment,
and Docket No . . CENT 95-112-M, and A.C. No. 41-03698-05515-A.
This decision will not become final until such time as full
payment of the $500 is made by the respondent to MSHA, and I
retain jurisdiction in this case until payment of all installments are remitted and received by MSHA.
In the event the
respondent fails to comply with the· terms of the settlement, the
petitioner may file a motion seeking appropriate sanctions or
further action against the respondent, including a reopening of
the case.

4~~
Administrative Law Judge

Distribution:
Mary K. Schopmeyer Esq., Office of the Solicitor,
U.S. Department of Labor, 525 Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)
Jim Minter, Esq., 1110 East Weatherford Street,
Forth Worth, TX 76102 (Certified Mail)

/lh

1412

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

AUG 2 1 1995
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-452-M
A.C. No. 42-01975-05504

v.

Lakeview Rock Products

LAKEVIEW ROCK PRODUCTS, INC.,
Respondent
DECISION
Appearances :

Ann Noble, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Gary V. Smith, North Salt Lake City, Utah,
for Respondent.

Before:

Judge Cetti

This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et~' the "Act". The
Secretary of Labor on behalf of the Mine Safety and Health Administration (MSHA), seeks civil penalties from Respondent Lakeview
Rock Products, Inc., ("Lakeview") for the alleged violation of
four mine safety standards found in Part 56, Title 30, Code-of
Federal Regulations.
Lakeview filed a timely answer contesting the existence of
each of the violations and the assessment of penalties. Pursuant
to notice to the parties the case was heard at Salt Lake City,
Utah. oral and documentary evidence was presented and the matter
submitted for decision.
stipulations
At the hearing the parties entered the following
stipulations into the record:
1. Lakeview Rock Products, Inc., is engaged in mining and
selling of sand and gravel in the United States and its mining
operations affect interstate commerce.

1413

2.
Lakeview Rock Products, Inc., is the owner and operator
of Lakeview Rock Products, Inc., MSHA I.D. No. 42-01975.
3. Lakeview Rock Products, Inc., is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30
U.S.C . § 801 et seq. ("the Act").
4.
matter.

The Administrative Law Judge has jurisdiction in this

5 . The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
respondent on the dates and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by Respondent and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.
7.
The operator demonstrated good faith in abating the
violations.
8.
Lakeview Rock Products, Inc., is a small mine operator
with 8,720 hours of work in 1992.
9.
The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citations.
10. Th~ issue regarding Citation No. 4120260 is whether a
portion of the berm at the grizzly was missing or inade9uate.
11. A ramp ran from the plant area to the primary plane
feed.
Tracked vehicles used this ramp. The issue with regard to
Citation No. 4120281 is whether the berms for the ramp were improperly missing or inadequate.
12. The V-belt drive and feeder chain on the primary crusher
were not guarded at the time of the inspection. The issue, with
regard to Citation No . 4120282; is whether such guarding was
required .
13 . The tail pulley on the sta9ker conveyor belt was not
guarded at the time of the inspection. The issue, with regard to
citation No. 4120283, is whether such guarding was required.

1414

Citation No. 4120260

This citation alleges a violation of 30 C.F.R. § 56.8300(a).
The citation reads as follows:
The berm at the primary grizzly was not
maintained in a condition to prevent
equipment from dropping over the retaining
wall. A 10-foot section of the berm was
missing on the south side of the approach.
It is unlikely that a vehicle would drop
over the retaining wall, since the missing
berm was located near the grizzly and the
equipment was nearly stopped at that point.
The cited safety standard provides:
(a) Berms or guardrails shall be provided
and maintained on the banks of roadways where
a drop-off exists of sufficient grade or
depth to cause a vehicle to overturn or
endanger persons in equipment.
Inspector Pennington testified that he observed a rubber
tired front-end loader pick up material and carry it to the
primary grizzly. The approach to this grizzly had a berm consisting of a retaining wall constructed with dirt and concrete
blocks. The purpose of the berm was to protect vehicles and
machinery using this approach from the hazard of a 10 to 13 foot
drop-off. Inspector Pennington testified there was a 10-foot
section with no berm along the south side of the approach.
Pennington conceded that it was unlikely that a vehicle would
drop over t~e edge since the missing section of berm was located
near the grizzly where the front-end loader bringing material to
dump in the grizzly slows to a near stop.
Respondent presented evidence 'that the loader was wider than
the missing 10-foot section of berm and that an accident was
unlikely . Respondent promptly abated the violation within 20
minutes after the citation was issued.
I find there was a violation of the cited safety standard;
that there was no reasonable likelihood that the hazard contributed to would result in an injury·. Since injury was unlikely,
the inspector properly issued the citation as a 104(a) violation
that was not significant and substantial.
Upon consideration of the penalty criteria set forth in
section llO(a) of the Act I find the MSHA proposed penalty of
$50.00 is the appropriate penalty for this non-S&S, 104(a)
violation of this safety standard.

1 415

citation No. 4120281
This citation also alleges a violation of 30 C.F.R.
The citation reads as follows:

§ 56.900(a) regarding berms.

A 50-foot section of the berm was missing
from the ramp. The missing berm was located
on the south side of the ramp and the maximum
drop-off was approximately 10 feet.
The
drop-off was a gradual slope and it is un1 ikely that a serious injury would occur if a
vehicle should leave the roadway.
Inspector Pennington testified that there was a 50-foot
section without a berm near the bottom half of the 100-foot long
ramp.
The ramp extended from the bottom area of the pit to the
primary feeder located at a higher level. There was a 10-foot
drop from the edge of the ramp along the section that was cited
for not having a berm.
On cross-examination, the inspector agreed that the ramp was
used only occasionally and that the drop-off was not vertical.
The drop-off was sloped two to one. The inspector conceded that
injury was unlikely.
The evidence presented established a violation of the cited
safety standard. The inspector properly evaluated the violation
as non-significant and substantial and Respondent's negligence
was moderate.
I have considered the statutory criteria in section llO(a) of the Act and find that the MSHA $50.00 proposed
penalty is the appropriate penalty for this non-S&S violation of
the cited safety standard.

Citation No. 4120282
§

This citation alleges a violation of 30 C.F.R.
56.14107(a).
The citation reads as follows:
The V-belt drive and feeder chain was not
guarded on the primary crusher. The exposed
pinch points were located 4 feet from a
travelway and 5 feet above the ground.
Employees do not enter into this area when
the plant is running. Their (sic) is a
danger of being struck by falling rock from
the grizzly located above the feeder.
Employees are aware of the hazards and stay out
of the area.

1416

. 30 C.F.R. § 56.14107 subsections (a) and (b) provide as
follows:
§

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.
Inspector Pennington testified that there was a feeder chain
and a V-belt drive on the primary crusher. Neither had a guard.
The exposed pinch points were located four feet from a travelway
and five and one-half feet above the ground. The inspector
acknowledged that if an employee were to enter the area where he
would be exposed to the hazard of the pinch points there is a
danger he would be struck by falling oversize rocks. These rocks
fall down a distance of about 10 feet from the top of the grizzly
whenever the machinery is operating . Employees are aware of this
hazard and consequently never enter this area when the plant is
running.
The inspector testified that the alleged violation was
abated not by guarding the pinch points but by . cleaning out the
rock pile below the grizzly. The inspector freely admitted that
when the rocks that were piled on the ground below the grizzly
were cleaned out there was a distance of seven feet from the
ground to the pinch points. The inspector further explained that
the rocks that had fallen from the top of the grizzly had accumulated so that it sloped up about five feet above ground leve-1.
The inspector took his four foot measurement from the top of the
rock pile to the pinch point.
Scott Hughes, the pit manager, at the site for the last 12
years was called by Respondent. He testified whenever ~he plant
is operating there are rocks falling 8 to 10 feet from the top of
the grizzly to the area below where the unguarded pinch points
are located.
Mr . Hughes testified the pinch ·point on the V-belt and
pulley drive and the chain feeder are approximately 10 feet above
the ground level. No employee has been in that area when the
plant is operating during the 12 years he has been at the pit.
When Inspector Pennington showed up for the inspection, Respondent shut everything down including all the machinery so Mr.
Pennington could conduct his insp~ction without any interference.

1417

At the end of each shift the rocks below the pinch points
are cleaned out by use of a rubber tired loader with full overhead protection. There is no manual cleaning of the area below
the pinch points.
Mr. Hughes also testified that the V-belt and chain drive
assembly are maintenance free. They do not use grease or any
other lubricant. He also stated that to even try to get close to
the pinch points an employee would have to climb the rock pile on
his hands and knees and if he attempted to do this while the
machinery was running he would also be exposed to the hazard of
being struck by the oversize rocks falling from the top of the
grizzly.
Subsection (b) of the 30 C.F.R. § 56.14107 clearly states
that guards shall not be required where the moving parts are at
least sevem feet away from walking or ·working surfaces. On the
basis of the testimony of both the inspector and plant manager
and also the photograph of the rocks below the pinch point
introduced as Petitioner's exhibit 3, I find the rock pile below
the exposed pinch point is not a "walking" or "working surface"
within the meaning of the cited safety standard. The unguarded
exposed moving parts were at least seven feet from walking or
working surfaces and thus clearly falls within the exclusion of
the need to guard specified in subsection (b) of the cited safety
standard.
For this reason Citation No. 4120282 is vacated.
citation No. 4120283
This citation issued under 104(a) of the Act alleges a
violation of 30 C . F . R. § 56.14107(a).
The citation reads as follows:

-The tai l pulley on the stacker conveyor
belt was not guarded. This pulley was a
smooth drum type and located approximately 3
feet above the ground. The exposed pinch
point was created where the return conveyor
belt meets the tail pulley.
It is unlikely
that an incident would occur since employees
do not enter the area when the plant is
running. There is a fall of rock hazard from
the primary grizzly located near-by.
30 C.F.R. § 56.14107 subsection (a) and (b) provide as
follows:
§

56.14107 Moving machine parts.

(a) Moving machine parts shall be guarded
to protect persons from contacting gears,

1418

sprockets, chains, drive, head, tail, and
takeup pulleys, flywheels, couplinqs, 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.
It is undisputed that the tail pulley for the stacker conveyor belt did not have a guard. The tail pulley was flat and
the conveyor belt was 30 to 36 inches wide. There ' was an exposed
pinch point between the return conveyor belt and the tail pulley.
The inspector testified he believed it was unlikely that
anyone would enter the area where they would be exposed to the
hazard of the unguarded pulley because of the hazard of being hit
by rocks falling down from the top of the grizzly whenever the
machinery is operating.
The cited violation was abated by installing a guard over
the tail pulley . The inspector evaluated the Respondent's
negligence as moderate.
On cross-examination the inspector testified that a person
could walk up to the unguarded tail pulley and that his 3-f oot
measurement was taken from the ground to the pinch point and not
from the top of any build-up. This was confirmed by the notes he
took during his inspection.
Mr. Smith, the plant manager, testified that he believes the
inspector took the 3-foot measurement from the top of the buildup to the tail pulley and not from the ground. He stated the
pulley "is about seven feet above the ground."
I credit the testimony of Inspector Pennington and f inq the
cited safety standard was violated since the tail pulley had no
guard and the unguarded tail pulley was less than seven feet from
a walking surface. I also agree with the inspector that the
operator's negligence was no more than moderate. Upon consideration of the statutory criteria in section llO(i) of the Act I
find the appropriate penalty for this violation is the MSHA
proposed penalty of $50.00 .
ORDER
Based upon the foregoing findings and conclusions it is
ORDERED that:
1. Citation No. 4120260 is AFFIRMED and a civil penalty of
$50.00 is assessed for this violation.

1419

2.
Citation No. 4120821 is AFFIRMED and a penalty of $50.00
is assessed.
3. Citation No. 4120282 along with its proposed penalty is
VACATED.
4.
Citation No. 4120283 is AFFIRMED and a penalty of $50.00
is assessed.
5. RESPONDENT SHALL PAY a civil penalty of $150.00 to MSHA
within 40 days of this decision. Upon receipt of payment this
case is dismissed.

(), ~~~t':f {lite
1~istrative Law Judge

Distribution:
Ann Noble, Esq., Office of the Solicitor, U.S . Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Mr. Gary v. Smith, LAKEVIEW ROCK PRODUCTS, INC., 900 North
Redwood Road, North Salt Lake, UT 84054
(Certified Mail)
/sh

1420

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K ~E£T NW, 6TH FLOOR
WASH ;NGTON, D.C. 20006

Augast 22, 1995

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

v.
FERN COVE INCORPORATED,
Respondent

.•

CIVIL PENALTY PROCEEDINGS

.

Docket No. WEVA 95-16
A. C. No. 46-07062-03619

:
:

:
.
•

Docket No. WEVA 95-64
A. C. No. 46-07062-03623

:

Coalbank Fork No. 12

•
:

.•
:
0

SECRETARY OF LABOR,
MINE SAFETY AND HEAL'-.'H
ADMINISTRATION (MSH1) 1
Petitioner

v.
TANGLEWOOD ENERGY,
INCORPORATED,
Respondent

.•
:
:
•

..
..

CIVIL PENALTY PROCEEDING
Docket No. WEVA 95-65
A. C. No. 46-06329-03657
Tanglewood No. 2

•

ORDER OF DEFAULT
Before:

Judge Merlin

A show cause or6er was issued in Docket No. WEVA 95-16 on
February 8, 1995.
A show cause order was issued in Docket No. WEVA 95-65 on
February 28, 1995.
A show cause order was issued in Docket No. WEVA 95-64 on
February 28, 1995.
on April 27, 1995, an order was issued staying these-cases.
The operator bad petitioned the . commission for relief in 120
civil penalty cases where it failed to either timely contest the
civil penalty assessment or was held in default for failing to
answer the seeretary•s penalty petition. Therefore, these
matters were stayed pending a decision by the Commission in
theses cases.
on July 13, 1995, the commission issued a decision with
respect to the operator•s petition for relief. The commission
denied th'e operator• s request to reopen the 120 civil penalty
cases. The Commission found that the operator failed to provide
sufficient grounds or adequate explanations to justify relief
from the final orders. Tanglewood Energy Inc. and Fern cove
~., 17 FMSHRC 1105.
The files contain the return receipt showing that the
operator received a copy of the April 27 order on May 9, 1995.
1421

In addition, the files contain return ~eceipta showing that the
operator received a show cause order for ·Docket No. WEVA 95-16 on
February 16, 1995, for Docket No. WEVA 95-64 on March 2, 1995,
and Docket No. WEVA 95~65 on March 2, 1995. The operator did not
file an answer or response to the show cause orders in any of
these cases. · Hore than 30 days has past since the commission•s
decision and the operator still has not filed any response.
Therefore, these cases are now ripe for default.
Accordingly, it is ORDERED that the operator be held in
DEFAULT for the penalty amounts in these cases totaling $39,049
and that it PAY this sum immediately.

____\
~

\

~~
~
~

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Heather Bupp-Habuda, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Mr. Randy Burke, President, Fern cove, Inc., P. o. Box 554,
Oakland, MD 21550
/ql

1422

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

AUG 2 3 1995

JIM WALTER RESOURCES, INC.,

CONTEST PROCEEDING

Contestant
v.

Docket No. SE 94-586-R

Order No. 3184217; 7/22/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)

No. 4 Mine

Respondent
CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 94-429
A.C. No. 01-01247-04120
Docket No. SE 94-448
A.C. No. 01-01247-04122

v.
JIM WALTER RESOURCES, INC.,

Respondent

No. 4 Mine
Docket No. SE 94-394 .
A.C. No. 01-01322-03957
No. 5 Mine
Docket No. SE 95-430
A.C. No. 01-01401-04011
No. 7 Mine

1423

PECISION

Appearances:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham; Alabama,
for Respondent and Petitioner;
David M. Smith, Esq., Maynard, Cooper & Gail,
Birmingham, Alabama, for Contestant and
Respondent;
R. Stanley Morrow, Esq., Jim Walter Resources,
Inc., Brookwood, Alabama, for Contestant and
Respondent.

Before:

Judge David Barbour

These consolidated cases involve one contest proceeding
and four civil penalty proceedings brought under the Federal
Mine Safety and Health Act of 1977 (Act) (30 U.S.C. § 801 .et.~
(1988)). In the contest proceeding, Jim Walter Resources, Inc.
(Jim Walter) challenges the validity of an order of withdrawal
issued pursuant to section 104(d) (2) of the Act (30 U.S.C.
§ 814(d) {2)).
In the civil penalty proceedings, the Secretary
of Labor (Secretary) , on behalf of his Mine Safety and Health
Administration (MSHA) , petitions for the assessment of civil
penalties for numerous violations of mandatory safety and health
standards.
The cases were heard in Hoover, Alabama. Prior to the
hearing, counsels for the parties announced that they had settled
many of the alleged violations in the civil penalty proceedings,
but they had been unable to settle the issues relating to the
contest of the order of withdrawal (Docket No. SE 94-Sg6-R), and
to two of the alleged violations of health standards (Docket No.
SE 94-448).
I advised counsel that I would hear their explanations of the settlements after all of the evidence had been
submitted regarding the contested issues. I stated that if I
believed the settlements were warranted, I would approve them
on the record and affirm my approyals in this decision.
The Issues
The order of withdrawal contested in Docket No. SE 94-586-R
alleges a violation of 30 C.F.R. § 72.630(a), a health standard
requiring the control of dust resulting from the drilling of rock.

1424

The order also contains special findings alleging that the
violation was a significant and substantial {S&S) contribution
to a mine health hazard and was the result of Jim Walter's
unwarrantable failure to comply with section 72.630(a).
The alleged violations in Docket No. SE 94-448 are each
of 30 C.F.R. §70.440-3, a health standard that required dust
from a rock drill to be readily distributed and carried away
from the drill operator or other workers in the area . The
citations in which the violations are alleged also contain S&S
findings. The Secretary proposed civil penalties of $1,610
for each of the alleged violations.
The issues in the contest proceeding are whether Jim Walter
violated section 76.630{a) and, if so, whether the special findings are valid. The issues in the civil penalty case are whether
Jim Walter violated section 70.400-3, whether the S&S findings
are valid, and the amount of any civil penalties to be assessed.
Finally, the parties agreed that if I concluded the violation cited
in the contested order existed, I should make findings regarding
the gravity of the violation and the negligence of Jim Walter in
order to guide the parties in resolving the civil penalty aspects
of the case (Tr. 7).
The Standards
Section 70.400, of which section 70.400-3 is a subsection,
was in effect until April 18, 1994. Section 70.400 stated:
The dust resulting from drilling in rock shaJl
be controlled by use of permissible dust collectors,
or by water, or water with a wetting agent, or by
ventilation, or by any other method or device
approved by the Secretary which is as effective in
controlling such dust.
Section 70.400-3 stated:
To adequately control dust from drilling rock,
the air current shall be so directed that the dust
is readily dispersed and carried away from the drill
operator or any other workers in the area.

1425

On April 19, 1994, Section 70.400 was replaced by section
72.630(a), and section 70.400-3 was replaced by section 72.630(d)
(.B.e..e. 59 Fed. Reg. 8327 (1994)).
The new standards are virtually
identical to the old.
Section 72.630(a) states:
Dust resulting from drilling in rock shall be
controlled by use of permissible dust collectors,
or by water, or water with a wetting agent, or by
ventilation, or by any other method or device
approved by the Secretary that is as effective in
controlling the dust.
Section 72.630(d) states:
To adequately control dust from drilling rock,
the air cu rrent shall be so directed that the dust
is readily dispersed and carried away from the drill
operator or any other miners in the area.
The Citations and The Order
Citation No. 3186828 (Docket No. SE 94-448), which alleges
a violation of section 70.400-3, was issued on March 21, 1994,
at the No. 4 Mine. It states, in part:
According to statements made by management and
labor employees, rock drilling is being conducted
on toe No. 2 longwall ... with ventilation as th~
only method of dust control. The drilling is being
done on-shift and affected employees are not being
removed downwind on the longwall face. Training
shall be conducted on all three shifts in the
requirement that with ventilation as ~he only means
of dust control during rock drilling, the air shall
either be directed away from the face or the affected
employees removed from the area. The drilling is
being done with gopher ... drills (Gov . Exh. 4).
Citation No. 3186829 (Docket No. SE 94-448} was issued on
the same date, at the No. 4 Mine, and alleges ·a violation of
the same health standard. It states, in part:

1426

According to statements made by management and
labor employees, rock drilling has been conducted on
the face and belt entry of the [N]o. 1 longwall ...
with ventilation as the only method of dust control.
The drilling is being done on shift and affected
employees are not being removed from downwind on the
longwall face. Training shall be conducted on all
three shifts in the requirement that with ventilation
as the- only means of dust control during rock drilling, the air shall either be directed away from the
face or the affected employees removed from the area.
The drilling is done with gopher ... drills (Gov .
Exh. 5).
Order No. 3184217 (Docket No. SE 94-586-R), which alleges
a violation of section 72.630(a), was issued on July 22, 1994,
at the No. 4 Mine. It states, in part:
Statements given by labor and management
employees ... show that dust resulting from
drilling in rock was not being controlled by use
of permissible dust collectors, or by water, or
by water with [a] wetting agent, or by ventilation
controls. Employees who were drilling the No. 1
longwall section roof with pneumatic rotation drills
on [the] 7-21-94 owl shift were exposed to this dust
while installing permanent roof supports. As many
as four (4) drills were in operation at any one time
and none of the drills were equipped with dust
suppression devices (Gov. Exh. 8).
The Arguments
In opening his case, counsel for the Secretary stated that
the regulations regarding the control of rock dust f rqm drilling
provide essentially for three means of control -- approved dust
collectors, water, or ventilation. Because workable dust
collectors are not available for ·pneumatic rock drills, dust
control can be a serious problem unless water or effective
ventilation is used {Tr. 11). The citations and order were
issued because Jim Walter used pneumatic rock drills, but did

1427

not use water or properly use ventilation. The ventilation in
the cited areas was ineffective in that the rock dust traveled
over miners who were downwind of the drills (Tr. 12).
Counsel for Jim Walter agreed that no effective dust
collectors were available for the rock drills and that the
company had to use either water or ventilation. Water posed
a hazard to the miners operating the drills, and the
configuration of ventilation on the longwall sections made
it impossible to use ventilation for dust control
(Tr. 16).
Counsel asserted that Jim Walter did an "excellent job in maintaining a safe and healthy environment" nonetheless (Tr. 16),
and that the situation the company faced was "more [like] an
imposs i bil i ty of compliance position" than anything else
(Tr. 1 7) .
The Secretary's Witnesses
Judy McCormick
Judy McCormi ck is in charge of the heal_t h inspection
activities at MSHA's Birmingham, Alabama, subdistrict office.
As part of her work, she supervised three inspectors who conduct dust and noise surveys (Tr. 19-20}. McCormick stated that
when section 70.400 was in effect, it was usually applied to
percussion-type rock drills that drilled mine roofs {Tr. 21} .
McCormick testified that section 70.400 required dust from
drilling in rock to be controlled by permissible dust collectors,
water, water wi th a wetting agent, ventilation or "any other
method that [was] approved by the Secretary" (Tr. 22) . · She
understood that if ventilation was used as a means of dust control, the air had to be directed so the dust was carried away
from a drill operator and other miners. If a miner was downwind
from the drill operator and dust from the drill passed over him
or her, a violation of the standard occurred . The volume of
the air made no difference as to whether the violation existed
(Tr. 39).
In McCormick's view, . secti~n 72.630 contained the
same requirements as section 70.400.
McCormick identified a citation that was issued by MSHA
Inspector Newell Butler at Jim Walter's No. 3 Mine on March 15,
1994 (Gov. Exh. 3). The citation alleged a violation of section

1428

It was issued for drilling rock on the No. 2 longwall
section with ventilation as the only means of dust control and
with miners downwind of the drilling. According to McCormick,
these were essentially the same conditions that six days later
resulted in the alleged violations of section 70.400-3 at the
No. 4 Mine, and that six months later caused the contested order
to be issued at the mine (Tr. 26.).
75.400-3.

The alleged violations of section 70.400-3 were not based
upon the personal observation of the inspector, but rather upon
his interviews with labor and management personnel. McCormick
explained:
[T]he longwalls of Jim Walter's [were) having
compliance problems. And it was brought to our
attention by the United Mine Workers that drilling
was being done with the Gopher [percussion-type]
drills ... and people on the longwall faces were
being exposed to this dust (Tr. 28).
McCormick testified that in April 1994, she taught an MSHA
sponsored class 'for coal operators regarding compliance with
Part 72. Jim Walter sent two employees, one of whom was Wyett
Andrews, the safety supervisor at the No. 4 Mine {Tr. 30-31).
During the course, section 72.630 was discussed. Neither Andrews
nor the other Jim Walter employee who attended told McCormick
that the company was unable to comply with the standard {Tr. 31).
McCormick was asked about health hazards associated with
drilling rock. Her answer was succinct -- "[e]xposure ~o
crystalline silica or quartz resulting in silicosis" (Tr. 32).
She explained that the mandatory dust standards of Part 70
limit respirable dust in the atmosphere of active workings of
an underground coal mine to 2.0 milligrams of dust per cubic
meter of air when no quartz or less than five percent quartz
is present (30 U.S.C. § 70.100). ,When more than five percent
quartz is present, the limit decreases (30 C.F.R. § 70.101}.
The reduced allowable concentration is mandated because of the
heightened possibility of contracting silicosis due to increased
quartz in the mine atmosphere (Tr. 33).

1429

In the two years prior to the hearing, a reduced respirable
dust limit was in effect at the No. 4 Mine (Tr. 33). In other
words, during that time Jim Walter had to maintain the average
concentration of respirable dust in the mine atmosphere of both
longwalls at a standard lower than 2.0 milligrams per cubic meter
of air. McCormick stated that MSHA had cited the company for
violating the reduced standard (Tr. 34-35).
McCormick was asked about "bulk samples." She explained
that such samples were taken when a mine was experiencing a
"quartz problem." The purpose of the samples was to identify
the source of the quartz. The samples consisted of bulk material
from the coal face, the roof or the floor err. 35).
Bulk samples were collected at the No. 4 Mine during the
winter of 1993 (Tr. 37-38}. According to McCormick, analysis of
the samples "showed that the presence of quartz was extremely
high in the Middle Man rock in the face, which is a rock part
in between the coal [,] ... negligible in the Blue Creek coal
seam ... high in the roof, high in the floor and extremely high
in the Mary Lee coal seam" (Tr. 37). The samples were taken at
Jim Walter's request to help the company isolate the source of
quartz on the longwall. The results of the analysis of the
samples were given to the company's manager of ventilation.
No bulk samples were taken for the exact areas covered by
the subject citations, or, for that matter, within 100 feet of
the areas, nor were respirable dust samples taken (Tr. 44).
McCormick did not know what the respirable dust concentrations
were on the longwall sections when the alleged violations
occurred (Tr. 45). When asked how MSHA could determine the.
quartz content of the dust being breathed by miners if samples
were not taken and analyzed, McCormick replied that the hazard
from rock dust was so great, "it was not necessary to prove an
overexposure to any standard, only to prove an exposure"
(Tr. 63). She added that the quartz content of the dust did
not matter, there was an assumption that exposure would result
in silicosis at some point (Tr. 64).
·McCormick also stated that if miners wore respirators, an
operator would still have to comply with the standards. However,
use of personal protection equipment might affect the S&S nature
of the violation {Tr. 38, 39, 55).

14 30

McCormick believed the minimum air quantity required for
the No. 1 longwall was 65,000 cubic feet per minute when mining
was in progress. The quantity required was less when mining
ceased and the longwall was being recovered. She did not know
how much less, and she did not know the volume of air present
on the No. 1 longwall when the contested order was issued.
Nonetheless, she insisted that whatever the volume was, it had
no bearing on the alleged violation, nor on its S&S nature
(Tr. 52, 55-57).
When promulgating Part 72, the Secretary, through MSHA,
stated:
Under some circumstances, continuous mining
machines and roof bolters work on a single split of
air, and this can result in only the drillers being
protected while persons working downwind could be
exposed. If proper precautions are taken, however,
ventilqtion can be an effective method of dust
control. MSHA, therefore, has not deleted paragraph
(d) [of section 72. 630) . MSHA will continue to
determine compliance with this requirement under the
final rule as it has enforced§ 70.400-3; i.e.,
through the measurement of air quantity or other
measures set forth in a mine's ventilation and
methane and dust control plan (59 Fed. Reg. 8325
(1994)).
McCormick was asked whether this statement indicated that
compliance with section 72.630(d) should be based upon air
quantity measurements. McCormick responded, "No" (Tr 56-57)...
In McCormick's view, to establish a violation of section
72.630(d), all an inspector needed to know was the method of
dust control being employed by the operator. If ventilation
was being used, and if miners were downwind of the drill, there
was a violation (Tr. 60-61).
Gary Don Greer
Inspector Gary Don Greer works in the MSHA safety division.
He worked previously in the health division and administered

1431

the taking of respirable dust samples (Tr. 67-68). Greer
testified about the events that lead him · to issue the contested
order.
On July 21, 1994, Greer conducted an inspection at the
No. 4 Mine. He arrived underground as the crew from the
third shift or "owl shift" was leaving (Tr. 150).
(The owl
shift began at 11:00 p.m. on July 20, and ended at 7:00 a.m.
on July 21 (Tr. 110) .) Greer was accompanied by miners•
representative, Glynn Loggins.
(Loggins is also a member of
the United Mine Workers of America (UMWA) mine safety committee
(Tr . 6 9 - 7 0 ) . )
Greer and Loggins traveled to the No. 1 longwall section,
and arrived about 30 minutes after the end of the owl shift
(Tr. 122-123). Loggins told Greer about "the problems that labor
had ... with negotiations with management concerning drilling
rock, and having people work downwind in ... drilling operations"
(Tr. 70). Loggins also told him that a section 103(g) complaint
would likely be filed for having miners working downwind while
rock was drilled (Tr. 147, 161-162).
(Section 103(g) of the Act
(30 U.S.C. § Bi3(g)) provides that a representative of miners has
the right to obtain an immediate inspection on request if the
representative has reasonable grounds to believe a violation
exists.)
Recovery operations were underway at the longwall face.
On the headgate side of the section, the operations required
installation of a monorail, a rail type system used to hang
cables (Tr: 21). The work necessitated drilling holes into the
roof with percussion-type drills (Gopher drills) (Tr. 7-1, 142).
Greer explained that a Gopher drill weighs approximately
150 pounds (Tr. 90, 142). It can be carried by two people without much difficulty. The drill steel is hollow. Pressuri~ed
air courses up the steel and turns the bit. As the bit rotates,
it pulverizes the roof rock. Unless the pulverized rock is
collected or wetted, the dust is forced out of the drill hole
by the air and enters the mine atmosphere in a visible cloud
(Tr. 90-91). When water is used, no dust enters the atmosphere
{Tr. 97) .

1432

Greer did not know of any dust collection devices that
.w ould work on Gopher drills. He believed the only way to control the dust was with water or ventilation (Tr. 101-102).
Although Jim Walter had been mining longwalls since 1980, until
the inspection of July 21, Greer never saw water used to control
~ock dust (Tr . 103) .
Prior to July, he never issued a citation
for miners working downwind when ventilation was the only means
of rock dust control (Tr . 104).
The longwall section foreman was Ed Scalla. According to
Greer, Scalla asked how Jim Walter could operate drills on the
section and comply with section 72 . 630 {Tr. 148, see also
Tr. 71) . (Greer speculated that Scalla inquired about the
problem because the UMWA and Jim Walter had been discussing it
{Tr. 75) .) Greer told Scalla that Jim Walter could provide
water or water with a wetting agent to the drills or could use
ventilation (Tr. 72-73).
Greer asked how many drills were available on the section,
and Scalla stated that there were two {Tr. 72-73). Greer
responded that with two drills operating and with ventilation
used as the means of dust control, miners could not work below
the upwind drill {Tr. 73- 74).
According 'to Greer, following the discussion with Scalla,
Eugene Averette, the longwall maintenance supervisor, fitted
one of the two drills wi th water by connecting a water line to
the drill. It took approximately 15 minutes (Tr. 76, 109).
Greer then watched while the drill was used and water was
coursed through the drill steel into -the drill hole (Tr. 76-77 ).
It was the first time Greer had seen water used with a
percussion-type rock drill (Tr. 103, 126). Six or seven bolts
were installed in the roof . It took approximately three or
four minutes to drill a hole (Tr. 90-91). Some water came out
of the hole as it was drilled, but the water did not interfere
with the operation of the drill (Tr. 126). When the hole was
finished, the drill was picked up and moved over five feet and
the next hole was drilled (Tr. 92).
Greer and Loggins also observed both drills in operation at
the same time. The drills were from 100 feet to 250 feet apart
{Tr. 92). The miners located downwind did not have dust passing

14 33

over them from the upwind drill because the water on the upwind
drill was effective in controlling the dust (Tr. 77). Greer
asked the miners operating the upwind drill if the water caused
them any problems, and they replied that it did not (Tr. 78).
Greer also asked Loggins if he believed there was any danger in
using water and Loggins replied that he did not (Tr. 154). No
one from mine management asked any questions about the operation
of the drill, or indicated any problem with the water (Tr . 79).
Greer testified that water was readily available on a
longwall section. When mining was in progress, it was used to
wet the coal, and during recovery operations, a water line for
fire fighting ran to the end of the track {Tr. 78-79).
When Greer returned to the surface, he was told that
McCormick wanted him. Greer called McCormick, who advised him
that she had received a section 103(g) inspection request from
the UMWA. The request stated that miners were required to work
downw i nd during roof drilling operations and that the drills
were not equipped with water (Tr. 80). Greer told McCormick
that because of his recently completed inspection, he was aware
of the problem a nd that he would "handle the request" {Tr. 81).
Greer returned to the mine the next day. Pursuant to the
section 103(g) request, he interviewed several miners, including
Keith Burgess, owl shift union safety committeeman, and Loggins
(Tr. 81). Greer also interviewed Wyatt Andrews and the foreman
of the owl shift (Tr. 82).
In Greer's view, the section 103(g) request was referring
to conditions that had existed on the July 21 owl shift. Greer
asked management personnel if roof bolts had been installed
during that shift. He was told that they had been and that as
many as four Gopher drills had been used at one particular time
{Tr . 83) .
Greer asked the shift supervisor if he was aware that a
citation had been issued in March because drills were not
equipped with water and effective ventilation controls were not
used. The supervisor told him he was not aware of the citation
(Tr. 84) . However, Greer maintained that Wyatt Andrews and
Jerry Maddox, the longwall manager, were aware of the previous

1434

citations (Tr. 84-85). Maddox told Greer that he believed the
use of water to control dust could create a hazard (Tr. 96).
Greer acknowledged that injecting water into the roof could add
weight to the roof (Tr. 117).
Greer's discussions with Jim Walter supervisory personnel
and UWMA employees yielded identical information regarding the
July 21 owl shift -- that none of the drills in operation at any
one time·were equipped with dust suppression devices or water
(Tr. 122). Greer believed there was a violation of section
72.630(a) because the investigation revealed that Jim Walter
failed to provide water, or water with an agent, to allay dust
generated by drilling rock and failed to implement any type of
ventilation control that carried drill dust away from people
working downwind (Tr. 86-87).
Greer found the violation of section 75.630(a) was caused by
the company's unwarrantable failure to comply, in that Jim Walter
management knew that the practice of drilling without protective
devices and with miners downwind was a violation of the standard
(Tr. 87). In other words, the violation was deliberate. He
stated, 11 1 asked .. . Andrews and I asked ... Maddox if they were
aware that violations of a similar nature had been issued, and
both stated that
they were aware" (Tr. 87-88) .
Greer found the violation was S&S because the drilling
of rock that contained quartz could lead to quartz-bearing
respirable dust, anq exposure to the dust could cause breathing
problems and silicosis (Tr. 89). However, Greer admitted that
when he wrote the order he had no information about the volume
of ventilation in the affected area, the content of respirable
dust in the atmosphere, nor any information about the specifiG
composition of the dust (Tr. 131, 138}. He stated his finding
that the violation was "highly likely 11 to lead to illneS$ was an
"educated guess" (Tr. 132).
William Keith Burgess
William Keith Burgess is a longwall helper at the No. 4
Mine. He has been employed by Jim Walter since January 1980,
and he is a member of the UMWA safety committee (Tr. 167). (The
committee meets with management on a monthly basis and discusses
specific problems with management on a daily basis (l..d..J .

1435

Burgess stated that some days before ·July 22, he was present
when the committee and management discussed the issue of controlling dust from rock drilling (Tr. 168-169}.
(He believed
the subjec~ had been discussed by the union and management
previously. However, this was the first time he was involved
(Tr. 172) .) At the meeting, Wyett Andrews and Fred Kozell, the
deputy mine manager, represented management. Burgess, Loggins
and another miner were the union representatives (Tr. 168-169,
172}.
The reason for the meeting was that rank-and~file miners
knew Gopher drills would be used during forthcoming longwall
recovery work. According to Burgess, when the union personnel
asked Kozell if water was going to be used to control the rock
dust, Kozell responded affirmatively and said that he would have
the drills fitted for water (Tr. 170).
Burgess described a Gopher drill as approximately three feet
high with a swing-type handle. Two levers are located in the
middle of the handle, one controls the air that is blown into
the drill steel, and the other extends the drill into the roof
(Tr. 174-175} . . Burgess stated that visually observed dust is
created when water is not used (Tr. 176).
On July 21, Burgess was working on the owl shift as a longwall helper and dri l l operator. He recalled four Gopher drills
~n use during the shift.
Two were on the section when the crew
arrived and two were brought to the section by the crew
(Tr. 179).
(Several other inoperable drills were on the section
when the crew arrived (l.d.._) .) Drilling went on during the entire
owl shift and Burgess was not aware of water used on any of the
drills during the shift (Tr. 183-184, 222).
Burgess testified that the four drills were operated at the
same time (Tr. 179). Although he could not see other drills
operating when he was drilling, when he stood back, he could see
more than one drill operating, and none of the drills were fitted
for water (Tr. 216-217, 221, 226, 227).
The drills were along the ldngwall face between the headgate
and tailgate (Tr. 181-182}. One drill was located at the headgate. Because the air on the longwall moved from the headgate
to the tailgate, the other drills were located downwind from the

1426

first d ril l (the headgate drill) (Tr. 182-183). Burgess believed
he was operating the third drill (Tr. 183). While he was drilling, Burgess observed dust coming toward him from the o ther
dril l s {Tr. 228) .
Burgess described some of the roof being dril l ed as ''bad
top" (Tr. 199). At times, the drill steel passed through breaks
in the roof strata, which indicated to him that the strata was
cracked (Tr . 199-200, 201).
Shortly before entering the mine on July 21, the owl shift
crew was told by Ed Hertzog, the foreman, to get respirators
(Tr . 186) . Burgess testified that he had never previously been
issued a respirator (Tr. 188). According to Burgess, Hertzog
stated the respirators were to replace water on the drills
(Tr. 191, 225-226).
Once on the section, Burgess attempted to wear his
respirator, but removed it because it pulled his head down and
he could not watch the roof (Tr. 190). Only one miner wore a
respirator during the entire shift. All other miners on the
crew wore their respirators at least for an hour (Tr . 190, 218).
When it became clear that water was not going to be used on
the drills, Burgess discussed with the other safety committee
members the possibility of requesting a section 103(g) inspection
(Tr . 192-193) . Burgess believed an inspection was warranted due
to "the issue of (the) health of the miners" (Tr . 193) . He also
stated that one drill operator was concerned about what would
happen if water got into the roof strata {Tr. 204, 205).
Bobby Horton
MSHA Inspector Bobby Horton is supervised by McCormick. He
stated that he issued the March 21 citations to Jim Walter. The
citations al l eged violations of section 70.400 - 3 at the No. 4
Mine (Tr. 229-230; Gov. Exhs . 4 and S). He did not go under ground to observe the conditions described on the citations,
rather he obtained the information from interviewing miners
(Tr.· 231).

14 37

The citations were issued subsequent to McCormick's
instructions to check rock drills (Tr. 231). After interviewing miners and management employees, Horton determined that
the drills were not equipped with water or with permissible
dust collectors (Tr. 232). Jim Walter personnel who were present
during the interviews included Wyett Andrews and Fred Kozell.
Union members were also present (Tr. 232-233).
Horton was told during the interviews that miners at the
No. 1 and No. 2 longwalls were working downwind while drilling
and that no water or dust suppression devices were used to control the dust (Tr. 233, 237). Kozell confirmed this (Tr. 238).
Therefore, Horton found that violations of 70.400-3 had occurred.
Horton also found that because the violations presented the
hazard of contracting silicosis, they were S&S (Tr. 236-237).
Horton did not take any dust samples in connection with the
citations and he had no knowledge of the dust content of air
on the longwall sections. Horton did not know the degree of
any miner's actual exposure (Tr. 242, 243). Nevertheless, he
found the ' alleged violations posed a likelihood of illness
because of the "history of quartz and samples that [came] back
from Jim Walter's No. 4 [M]ine" (Tr. 243). He testified, "[y)ou
can get disabled. Breathing quartz, people can get silicosis"
(Tr. 244) .
Horton believed that up to ten miners were exposed to the
hazard because the dust from the drills had passed over them
(Tr. 237) .
Glynn Loggins
Loggins accompanied Greer to the No. 1 longwall at the start
of the July 21 day shift. He and Greer observed roof bolting
operations when water was used on the drills. Loggins heard
Greer ask a drill operator if the drill operator had any problems
using the drill with water. The drill operator replied that he
did not (Tr. 396-397).

1438

Jim Walter's Witnesses
Jef f rey Wade Maddox
Jeffrey Wade Maddox, t he longwall manager at the No . 4 Mine
has worked on longwalls for 13 years. As the longwall manager,
Maddox is responsible for the operation of the mine's two long wa lls and for the miners working on the longwall sections
(Tr. 250). The work day on each longwall section is divided
into three shifts. Each shift has a production foreman and a
maintenance foreman.
In addition, each day shift has a longwall
coordinator, who reports directly to Maddox (Tr . 250}.
Maddox normally works the day shift, but he is responsible
for longwall operations 24 hours a day. When a longwall is being
recovered, Maddox is at the mine from ten to twelve hours a day.
When he is not at the mine, he is "on call" (Tr. 272, 309, 312).
According to Maddox:
I will meet the evening shift supervisors
coming in on their oncoming shift, and talk to them
several times during their shift. The owl shift
supervisor will be c~ntacted prior to his shift.
And 30 percent of the time, they call me at home
during the a.rn. hours (Tr. 272-273} .
The No. 1 longwall panel was approximately 950 feet wide and
6,350 feet long (Tr . 252). According to Maddox, in July 1994,
the roof along the face became increasingly hard to control. As
a result , longwall mining ceased 125 feet short of projections,
and recovery started (Tr. 251).
The Blue Creek coal seam is mined at the No. 1 Mine
longwall. Above the Blue Creek coal is a seam of rock (the
Middle Man seam} which varies in thickness from ten inches to
five f eet . Above the rock is another coal seam, the Mary Lee
seam, and above the Mary Lee seam is sandstone (Tr. 253 - 254,
255) . Jim Walter prefers to use the Middle Man seam as the
roof (Tr. 256) .

1439

When mining stopped on the No. 1 longwall, the Middle Man
seam constituted about one fourth of the· roof (i.e. the first
25 shields). The Middle Man seam had become increasingly narrow.
As a result, the Mary Lee coal seam was mined and the remaining
three fourths of the roof (approximately 160 shields) consisted
of sandstone (Tr. 256-257). This roof was unstable and some of
it was falling before it could be pinned (Tr. 258-259, 283).
One fall measured 35 feet long, five feet wide and four to five
feet thick (Tr. 260}.
Maddox was aware that water or other dust control measures
were needed for the drills (Tr. 277}. After Jim Walter received
the March citations, it experimented with water, but each
experiment had an associated problem (Tr. 227-228).
Following a consultation with the distributor of the drills,
the company tried a system whereby water came through a drill's
handle. When this did not work, the system was modified to allow
a hose to be plugged in at a different point. On July 19,
six drills that were fitted in this way were used on the No. 1
longwall (Tr. 279-280, 281). They only worked for a short while.
One problem encountered was that if the drill steel hit a crack
or void in the roof strata and water dispersed into the strata,
the steel would "hang up" and could not be removed (Tr. 278}.
During the evening shift on July 20, Piper, the No. 1
longwall foreman, called Maddox at home and told Maddox he could
not keep the drills operational. Maddox understood the problem
to be that the water was "tearing the heads up" (Tr. 283). In
addition, when the drill steel hung up, the drill operators were
afraid to pull out the drill steel for fear of pulling .down the
roof (Tr. 285). Because the drills were inoperable the mine
production report for the evening shift stated that the company
needed nto get [the] powered respirator[s) charged" for the
oncoming owl shift (Tr. 343-344; JWR Exh. 2 at 11).
Around 4:00 a.m., during the owl shift, Maddox, who was
still at home, spoke with longwall foreman Hertzog (Tr. 346).
Hertzog said he was using two drills, and asked if Maddox wanted
water hooked up to the drills. Maddox told Hertzog to try water
on one of the drills (Tr. 287). However, Maddox did not know if
this was done (Tr. 347}.

1440

Maddox testified that on July 22, he attended a meeting with
Greer and others and discussed the problem (Tr. 291). According
to Maddox, Greer asked if he was aware that drills were in
operation without water and Maddox stated he was aware of it.
Greer also asked if Maddox was aware of the citations written in
March, and Maddox stated that he was (Tr. 291). Greer asked why
the drills were being operated with ~~t water and Maddox responded
that Jim Walter was in a hurry to bolt the roof because it was
bad (Tr. 291-292). Maddox later testified that time was of the
essence and that the longer the roof remained unbolted, the more
it deteriorated (Tr. 376) .
Maddox stated that Greer did not inquire about the efforts
Jim Walter had made to operate the drills with water (Tr. 292).
Nor did Maddox volunteer any information about the company's
attempts to use water. When asked why he did not tell Greer
about this, he responded, "[t]he question wasn't askeq 11 _(Tr. 292,
356) . When Maddox saw that Greer was writing an order of
withdrawal, Maddox became angry and he abruptly ended his
conversation with Greer (Tr. 374).
Maddox did not advise UMWA safety committee members of the
efforts Jim Walter had been making to provide water for the rock
drills. Nor did he contact MSHA's technical support division
or the MSHA subdistrict health division about the problems
Jim Walter was experiencing with the rock drills (Tr. 354-355,
357-358).
Maddox testified that a day or two before the withdrawal
order was issued, he received complaints from day shift drill
operators about infusing water into the roof (Tr. 294, -334-33~).
Maddox stated that the miners were concerned because, "[t]he
roof was extremely bad" (Tr. 294). However, he agreed that
roof conditions are dynamic and can change from shift to shift
(Tr . 372). Maddox did not speak with the miners again about the
problem (~) .
Wyett Andrews
Wyett Andrews, who is the safety supervisor at the No. 4
Mine, stated that during the evening shift of July 20, he was
in deputy mine manager Kozell's office when it was reported

1441

that there was a problem using water while drilling (Tr. 381382). As a result, Kozell directed Andrews to get the power
respirators prepared for the owl shift (Tr. 382). Andrews had
the respirators' batteries charged so that the respirators would
be ready (Tr. 384).
The July 21 owl shift crew took the respirators into the
mine (Tr. 384). Andrews believed that if the respirators were
worn they would protect the miners from respirable dust
(Tr. 391). He acknowledged that most miners did not like to
wear the respirators because they are bulky and uncomfortable.
As a result, Jim Walter did not require that they be worn, only
that they be available for wear (Tr. 392} .
Andrews believed that after the March citations were issued,
Jim Walter abated them, in part, by training its miners in compliance. The training took two or three minutes and consisted
of instructing longwall miners, supervisors and longwall
coordinators that if the drills did not have water, personnel
were not to be located downwind of the drills (Tr. 394, 395) .
Andrews was certain that Maddox took part in the training
(Tr . 396).
(Interestingly, Maddox ~id not recall much regarding
the training (Tr. 323-325). He stated:
We came in and sat down .. . They went over the
instruction with me over what had to be done. The
drills had to be converted to water. And we were
going to try that to see how it worked (Tr . 324) .)
Finally, Andrews testified that on July 20, 21 and 22, the
air volume on the No. 1 longwall ranged from between 78-,260 cfm
to 85,550 cfm (JWR Exh. 3 pp 2-7; Tr. 385). Under the miners
ventilation plan, the minimum air volume required during longwall
recovery was 18,000 cfm (Tr. 386).
The Violations
The alleged violations are based on substantially similar
facts and, as noted, the standards alleged to have been violated
are substantively identical . Section 70.400 required, and
section 70.630(a) requires, that dust resulting from drilling in
rock be controlled by use of permissible dust collectors, water,
water with a wetting agent, or by ventilation. Section 70 . 400-3

1442

explained, and section 72.630(d} explains, that ventilation
control is adequate when the ventilation is so directed that dust
is carried away from the drill operator and/or any other miners.
Bobby Horton, who issued the March 21 citations, stated that
he learned through interviews that rock drills in use at the
No. 4 Mine were not equipped with permissible dust collectors or
with water, and that miners were downwind while the drills were
operated {Tr. 231, 233, 237). In addition, Horton stated that
Mine Manager Kozell confirmed that Jim Walter was not using any
means to suppress the dust (Tr. 238}.
Horton's testimony went unchallenged and I accept it. It
establishes that Jim Walter was not controlling the dust resulting from drilling by any of the methods specified in section
70.400. Jim Walter was not using permissible dust collectors,
water, or water with a wetting agent. Because the longwalls were
ventilated on what was essentially a single split of air that
traveled from the tailgate to the headgate, and because I accept
Horton's testimony that miners were working downwind from the
drills while the drills were operated,, it is clear that the dust
was not controlled adequately by ventilation.
Therefore, I
conclude the March violations existed as charged.
I further find that there was a violation of 72.630{a) on
the owl shift on July 21, 1994. Burgess' firsthand testimony
establishes the violation. Burgess worked on the owl shift, and
I accept his assertion that drilling took place during the entire
shift (Tr. 183). I also accept his testimony that as many as
four drills· were used at one time, that the first was located at
the headgate and the others were located downwind, along the
longwall (Tr. 181-183). In this regard, I note his assertion
that when he "stood back," he saw more than two drills in
operation, and that none was fitted with water (Tr. 221, 227).
The fact that water was not used is also attested by Burgess'
statement that he saw dust coming toward him from an. upwind
drill, and by his testimony that Hertzog told him the respirators
were a replacement for using water when drilling (Tr. 191, 225226, 228}.

None of Jim Walter's witnesses undermined Burgess' testimony. Maddox stated that he told Hertzog to hook up water on one
drill, but he was not present on the section and he admitted that

1443

he did not know if it was done (Tr. 287, 347). Thus, the
testimony of Burgess compels the conclusion that during the owl
shift of July 21, dust resulting from drilling rock was not
controlled by dust collectors or water and, because miners were
working downwind in dust from the drilling, was not controlled
by ventilation.
In concluding that the violations existed as charged, I have
consi~~red Jim Walter's argument that the Secretary's failure to
take air measurements and dust samples on the longwall sections
warrants vacation of the citations and order (JWR Br. 17-19).
Jim Walter asserts that without such measurements and samples,
11
MSHA cannot measure the health risk to the miners from the dust
and cannot reasonably contend that Jim Walter was not suppressing
the dust ... by dilution with ventilation" (JWR Br. 18).
It is true that when the Secretary promulgated section
72.630, he seems to have stated that he would determine whether
ventilation was an adequate means of dust control through the
measurement of air quantity and other measures set forth in
the mine•s ventl.lation, methane and dust control plan. ("MSHA
will continue to determine compliance with th[e] requirement
(of section 72.630 (d)J ... as it has enforced§ 70.400-3,
i.e., through the measurement of air quantity or through- other
measures set forth in a mine•s ventilation ... plan (59 Fed. Reg.
at 3825).)
However, the intent and actual meaning of the statement is
an enigma to me. Counsel for the Secretary has not offered
an explana~ion. No testimony was offered by either party that
compliance with section 70.400-3 was determined through the
measurement of air volume. The Secretary's Program PoYicy Manual
-- the official repository of the Secretary's interpretation of
the regulations and of his enforcement practices -- is silent
regarding the matter.
In any event, because the standards themselves are very
clear, I conclude that the statement is beside the point. The
standards require dust resulting from drilling to be controlled
by the methods indicated. If ventilation is a chosen method,
they require the air current to be directed so that dust is
carried away from the drill operator or other miners in the area.
The regulations contain not one word about air measurements

1444

and/or dust samples. I cannot conclude that the Secretary
intended to condition compliance upon requirements he did not
promulgate.

A S&S violation is described in section 104(d) (1) of the
Act as a violation "of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard" {30 C. F.R. § 814{d) (1)).
A violation is properly designated S&S, ••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 822, 825 {April 1981)).
In Consolidation Coal Co., 8 FMSHRC 890 {June 1986), aff 1 d
sub nom Consolidation Coal Co. v. FMSHRC, 824 F.2d 1076
(D.C. Cir. 1987), the Commission concluded that the S&S analysis
it adopted in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984),
with certain adaptations, is appropriate in determining whether
certain health-related standards are S&S. The Commission stated
that to prove a mandatory health standard is S&S, the Secretary
must establish:
(1) the underlying violation of a mandatory health
standard; (2 ) a discrete health hazard--that is, a
measure of danger to health--contributed to be the
violation, (3) a reasonable likelihood that the
health hazard contributed to will result in an
illness; and (4) a r .e asonable likelihood that the
illness in question ·will be of a reasonably i;;erious
nature.
Consol, 8 FMSHRC at 897.
In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated:
We have explained further that the third element
of the . .. formula (enunciated in Consol], 'requires
that the Secretary establish a reasonable likelihood

that the hazard contributed to will result in an
event in which there is an injur-Y [or illness) 1
(U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984)). We have emphasized that, in accordance with
the language of section 104(d} (l}, 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 Co .. Inc. , 6 FMSHRC
1573, 1574-75 (July 1984) (Emphasis in original}.
The question of whether any particular violation is S&S
must be based on the particular facts surrounding the violation
(Secretary of Labor v . Texasgulf. Inc., 10 FMSHRC 498 (April
1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December
1987)). Further, any determination of the significant nature of
a violation must be made in the context of continued normal
mining operations (National Gypsum, 3 FMSHRC at 329; Halfway .
.ln.Q....., 8 FMSHRC 8, 12 (January 1986); U.S. Steel Mining Co.,
7 FMSHRC at 1130).
I have found that the violations existed as charged. Thus,
the first element of the Consol test has been established.
I
further find that the violations presented a discrete health
hazard.
I accept the testimony of McCormick that previous bulk
samples showed a high presence of quartz in the roof and elsewhere on the longwall section (Tr. 33, 37). The Commission
observed in Consol that, 11 [s)ilicosis has been recognized for
a long time as a disease associated with coal miners, and the
inhalation of silica-bearing dust has been causally linked to
the disease" (8 FMSHRC at 1279). When rock dust is not controlled by methods other than ventilation, when the ventilation
control is inadequate in that miners work in and breath the dust,
and when the dust is reasonably likely to contain quartz, a
discrete health hazard is established.
However, the Secretary's proof fails to meet the third
element of the Consol test.
Ip the context of a violation of
sections 70.400-3 and 72.630(a), this element requires the
Secretary to establish a reasonable likelihood that the hazard
contributed to will result in an illness. In other words, the
Secretary must prove it was reasonably likely that inhalation

1446

of the rock dust traveling downwind would result in the miners
becoming ill as mining continued on the longwall.
Because bulk samples of the area of the roof being drilled
were not collected, and because the respirable dust content of
the mine atmosphere in which the miners were working was not
sampled, none of the Secretary's witnesses could testify to the
exact silica content of the subject roof area, to the silica
content of the drill dust, or to the actual concentration of
respirable dust to which the miners were exposed. Nor did the
witnesses offer testimony regarding the respirable dust exposure
limits on the longwall sections on March 21, 1994 and on July 21,
1994, or what the average concentration of respirable dust in the
longwall atmospheres reasonably might have been.
Rather than testimony regarding the specific facts needed
to find a reasonable likelihood of illness or the specific facts
needed to make a reasonable inference of such a likelihood, the
Secretary ' s witnesses testified to a lack of specific knowledge
and to generalities. Such testimony is insufficient to establish
the reasonable likelihood of illness.
In reaching this conclusion, I have considered the
Secretary's assertion that,"once a violation of the drill dust
control regulation is established, a presumption arises that
it is reasonably likely that the health hazard contributed to
will result in an illness" (Sec. Br. 12). The Secretary cites
Commission decisions finding such presumptions when exposurerelated health standards are violated; i . e., Consol, 8 FMSHRC
at 890 (finding a violation of section 70 . lOO(a} S&S ) , and
U. S. Steel Mining Co .. Inc., 8 FMSHRC 1274 (September 1.986)
(finding a violation of section 70.101 S&S) . These presumptions
are based upon the fact that the exposure levels set in the
standards are "the maximum level allowed to achieve [Congress's]
stated goal of preventing disabling respiratory disease"
(U.S. Steel, 8 FMSRHC 1279-1280). Because cumulative exposures
to respirable dust above the limits are an important risk factor,
and because the state of scientific and medical knowledge does
not make it possible to determine the precise point at which
respirable diseases induced by the dust will present, the
Commission presumed that a documented overexposure established
a reasonable likelihood that illness would develop.

1447

The standards for drill dust control are not based upon
findings linking their violation to the reasonable likely
development of disease. Rather, the standards themselves
are the primary means of controlling drill dust exposure
(59 Fed. Reg. 8325 (1994). This means that the Secretary must
establish, for each violation, that the particular circumstances
cited are reasonably likely to result in disease as mining
continues.
As I have noted, the Secretary did not do so here. He
offered no evidence regarding the average concentration of
respirable dust that Jim Walter had to maintain on the longwall
section on March 21 and July 21. Nor did he present testimony
regarding the actual level of exposure of the miners, or the
reasonably likely level of exposure on those dates.
This is not to say that the Secretary necessarily had to
offer the results of bulk samples and/or of respirable dust
samples, to establish the inspectors' S&S findings. It is
conceivable he could have offered testimony from which a
reasonable likelihood of exposure in excess of the applicable
permissible limit or limits could have been inferred. However,
he did not .
Rather, the Secretary proved that in the past the longwall
sections were under a reduced, but unspecified exposure level.
This does not lead inevitably to a conclusion that on March 21
and July 21 miners in the same sections who were ~orking under
similar conditions were exposed to respirable dust concentrations
whose average exceeded the level allowed. They might have been
or they might not have been, and S&S findings can not rest upon
the past tense of "may."
Gravity
Although the violations were not S&S, they were serious.
Jim Walter was operating rock drills without dust control devices
and miners were downwind from the drills. Further, the roof
being drilled was composed of rock may have had a high silica
content. The ventilation on the longwalls was carrying the rock
dust over the downwind miners. The miners were subjected to the
possibility of inhaling silica bearing dust at a level in excess

1448

of that allowed.
the violations.

This is enough to establish the seriousness of

I have considered Andrews testimony that respirators were
available for use by miners on the owl shift (Tr. 382-384). Had
Jim Walter established that the respirators were worn throughout
the owl shift by all miners who were downwind from the drills,
the gravity of the July 21 violation might have been mitigated.
The company made no such showing. Andrews acknowledged the
respirators were bulky and uncomfortable and that most miners did
not like to wear them (Tr. 392). Moreover, he admitted that
Jim Walter did ·not require they be worn, only that they be
available for wear (.I.d....) • The fact that availability did not
foster continuing use was confirmed by Burgess. He stated that
only one miner wore a respirator for the entire shift (Tr. ·190,
218) . Although the rest of the crew wore respirators for one
hour at least, that did nothing to mitigate their exposure
during the remainder of the shift.
Unwarrantable Failure and Negligence
In Emery Mining Corp. (9 FMSHRC 1997, 2004 (December 1987))
the Commission held that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence and that it
is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or "a serious lack of
reasonable care 11 (Rochester and Pittsburgh Coal Co.,13 FMSHRC 189
(December 1-991)).
By July 21, 1994, Jim Walter was on notice regarding the
requirements of section 72.630 and of the Secretary's intent to
enforce the standard. Six months before, three citations had
been issued for essentially the same conditions. Andrews and
Maddox told Greer they were aware of the March citations issued
at the No. 4 Mine (Tr. 84-BS). Moreover, Andrews was one of
two Jim Walter employees who atten~ed MSHA sponsored classes on
Part 72, classes in which compliance with section 72.630 was
discussed (Tr. 84-85).

1449

Despite this knowledge, Jim Walter argues, in part, that
any failure to comply was due to the need to speedily bolt the
roof before it deteriorated (JWR Br. 32). Jim Walter presented
testimony to this effect, in that Maddox stated that the roof
was bad and needed to be bolted in a hurry (Tr. 291-292). In
addi°tion, Jim Walter argues that it was not . indifferent to the
requirements of the regulation, that it was making diligent
efforts to comply but was having trouble developing a system
whereby water could be used and the drills could be kept
operational (JWR Br. 31-32).
While I do not doubt the company had problems with the roof,
I do not believe the company was trying diligently to comply.
If, in fact, Jim Walter was having compliance problems, it is
logical that this would have been explained to Greer. It was
not (Tr. 374), and Maddox's excuse -- that Greer did not ask
about the problems -- strains credulity given the consequences
of Jim Walter's indifference (Tr. 292, 356, 357).
If Jim Walter could not successfully fit and operate its
drills with water, it is reasonable to think that the company
would have contacted MSHA about the problem and perhaps even have
advised the UMWA safety committee, since it knew of the miners•
concerns about working in drill dust (Tr. 354-355, 357-358).
Therefore, I find that Jim Walter fully understood what
was required, but was indifferent to compliance. Its failure to
control dust from rock drilling on the owl shift on July 21, was
the result of a serious lack of reasonable care and hence was the
result of the company's unwarrantable failure to comply with
section 72.630(a).
In exhibiting a serious lack of reasonable care, Jim Walter
failed to meet the standard of care required by the circumstances. Consequently, I also conclude the company ·was highly
negligent in allowing the violation of section 72.630(a).
Finally, I conclude that Jim Walter exhibited ordinary
negligence in allowing the violations of section 70.400-3 to
exist. The · first time Jim Walter was cited for a violation of
the standards relating to drill dust control was March 15, 1994.
The citation was issued six days before the citations at the

1450

No. 4 Mine. Jim Walter personnel should have known that the
conditions which elicited the citation at the No. 3 Mine were
likely to result in similar citations at the No. 4 Mine, and
reasonable care required that the conditions not be repeated
at the No. 4 Mine.
Other Ciyil Penalty Criteria
A MSHA computer print out indicates that in the 24 months
prior to March 21, 1994, the total number of paid violations at
the No. 4 Mine was 1,050 (Gov . Exh. 11). While this is a large
number of previous violations, there were no previous paid
violations of section 70.400 (l.s:L.).
Jim Walter is a large operator and the No. 4 Mine is a
large mine.
There has been no showing that the size of the penalties
will effect Jim Walter's ability to continue in business, and I
conclude that it will not.
Jim Walter demonstrated good faith in attempting to achieve
rapid compliance with secti.on 70.400-3 and section 72.630(a).
Ciyil Penalties
Docket No. SE 94-448
Order/
Citation No.

~

3186828
3186829

3/21/94
3/21/94

30 C.F.R. §

Proposed
Penalty

Assessed
Penal_ty

70.400-3
70 . 400-3

$1,610
$1,610

$600
$600

The violations were serious. They were caused by
Jim Walter's ordinary negligence. Given the ordinary negligence
and the fact that the violations represent the first time the
drill dust standard was enforced at the mine, I conclude that
penalties significantly less than those proposed are appropriate.
Accordingly, I will assess penalt\_es of $600 for each violation.

1451

Settlements and Orders
At the close of the hearing, Jim Walter's counsel explained,
on the record, the nature of the settlements to which the parties
had agreed (Tr. 406-412). Having considered the proposed settlements and the reasons supporting them, I find they are
appropriate and consistent with the purposes of the Act.
Accordingly, as set forth below, the settlements are approved.
Docket No. SE 94-429
Order/
Citation No.
31824519

2/3/94

30 C.F.R. §

Proposed
Penalty

Settlement

75.523

$4,000

$1,000

(The Secretary agrees the unwarrantable failure finding cannot
be sustained and he will modify the order to a citation issued
pursuant to section 104 (a) (30 U.S.C. §814 (a)) (Tr. 406).)
Order/
Citation No.
3185367

30 C.F.R.
3/14/94

§

75.380(g)

Proposed
Penalty

Settlement

$1,610

$850

(The parties agree that the number of persons affected by the
violation was four or five not ten as found by the inspector.
(Tr. 406-407))
Order/
Citation No.
3183302

30 /C.F.R.
3/17/94

Order/
Citation No.
3183203

3/17/94

§

Proposed
Penalty

77.1605(b)

$50

30 C.F.R. §

Proposed
Penalty

77.16'05{b)

$50

1452

Settlement
$50

Settlement
$50

Order/
Citation No.

lla.t.e

30 C.F.R.

3183204
3185374

3/21/94
3/21/94

75.220
75.206 (a) (2)

§

Proposed
Penalty

$ so
$506

Settlement

$ 50
$506

(Jim Walter agrees to pay in full the penalties proposed
(Tr. 407) . )
Order/
Citation No.
3185375

30 C.F.R.

3/21/94

§

75.700

Proposed
Penalty

Settlement

$595

$150

(The Secretary agrees that the S&S finding cannot be sustained
and he will modify the citation (Tr. 407) . )
Order/
Citation No.
3185376

30 C.F.R.

3/21/94

§

75.380(g)

Proposed
Penalty

Settlement

$1610

$850

(The parties agree that the number of persons affected by the
violation was four or five not ten as found by the inspector.
(Tr. 407) . )
Order/
Citation No .

3183306

~

3/22/94

30 C.F.R .

§

75 . 403

Proposed
Penalty

Settlement

$793

$250

(The Secretary agrees that the S&S finding cannot be sustained.
He will modify the citation (Tr. 408} .)
Order/
Citation No.

3185377

3/22/94

75.1100-2(b)

Proposed
Penalty

Settlement

$

$

50

so

(Jim Walter agrees to pay in full the penalty proposed
(Tr . 408).)

1453

Order/
Citation No.
3185378

Proposed
3/22/94

30 C.F.R. §

Penalty

Settlement

75.400

$1,298

$ 600

(The parties agree that the number of persons affected by the
violation was two not six as found by the inspector. (Tr. 408) .)
Order/
Citation No.
3185379

30 C.F.R.

3/22/94

§

75.400

Proposed
Penalty

Settlement

$793

$600

(The parties agree that the number of persons affected by
the violation was two not three as found by the inspector
{Tr . 4 0 8 - 4 O9 ) • )
Order/
Citation No.
3185380

30 C.F.R.

3/23/94

§

75.38l(c) (4)

Proposed
Penalty

Settlement

$50

$50

(Jim Walter agrees to pay in full the penalty proposed
(Tr. 4 0 9} . )
Jim Walter is ORDERED to pay the penalties shown.
The Secretary is ORDERED to modify the order and citations
as indicated.
Docket No. SE 94-448
Order/
Citation No.
3185543

2/7/94

30 C.F.R. §

Proposed
Penalty

Settlement

75.503

$617

$'500

(The Secretary agrees the unwarrantable failure finding cannot
be sustained. He will modify the order to a citation issued
pursuant to section 104 {a} {30 U.S. C. § 814 (a)) (Tr. 409) . )

1454

Order/
Citation No.
3185551

30 C.F.R.
2/23/94

§

75.335

Proposed
Penalty

Settlement

$506

$ 0

(The Secretary agrees the area cited was not covered by the
standard. He will vacate the citation (Tr. 409} .}
Order/
Citation No.

~

30 C.F.R.

2807401
2807381
2807382

3/16 / 94
3/21/94
3/21/94

75.207(a }
75.370 (a) (l)
75.370(a) (1 )

§

Proposed
Penalty

Settlement

$50
$50
$50

$50
$50
$50

(Jim Walter agrees to pay in full the penalties proposed
(Tr . 4 0 9 } • )
Order/
Citation No.
2807384

30 C.F.R.
3/30/ 94

§

75.370(a} (1)

Proposed
Penalty

Settlement

$1,610

$500

(The parties agree that the number of persons affected by the
violation was two not ten as found by the inspector. (Tr. 410).}
Order/
Citation No.
3584781

30 C.F.R.
4/11 / 94

§

75.403

Proposed
Penalty

Settlement

$506

$150

(The Secretary agrees that the S&S finding cannot be sustained
and he will delete it (Tr . 410).)
Order/
Citation No.
3185922

30 C.F.R.
4/11/94

75. 34·2

§

Proposed
Penalty

Settlement

$

$

595

0

(The Secretary agrees the citation does not st.ate a violation.
He will vacate the citation (Tr . 409} .)

1455

Order/
Citation No.
3183479

30 C.F.R.
4/12/94

§

75.1725

·proposed
Penalty

Settlement

$595

' $150

(The Secretary agrees that the S&S finding cannot be sustained.
He will modify the citation (Tr. 410) .}
Jim Walter is ORDERED to pay the penalties shown.
The Secretary is ORDERED to modify the order and citations
as indicated and to vacate the citations indicated.
Docket No. SE 94-394
Order/
Citation No.
3186004

30 C.F.R.
1/3/94

§

75 . 1725(a)

Proposed
Penalty

Settlement

$5,800

$1,500

(The Secretary agrees the unwarrantable failure finding cannot
be sustained. He will modify the order to a citation issued
pursuant to section 104 (a) (30 U.S. C. §814 (a) ) (Tr. 411} . )
Jim Walter is ORDERED to pay the penalty shown.
The Secretary is ORDERED to modify the order as indicated.
Docket No. SE 94-430
Order/
Citation No.

D.all

30 C.F.R.

318SS68
31828S4

2/16/94
2/22/94

50.20
75.1722(a)

§

Proposed
Penalty Settl:ement
$ so
$267

$ so
$267

(Jim Walter agrees to pay in full the penalties proposed
(Tr. 411) . )
Order/
Citation No.
3182858

30 C.F.R.
3/7/94

§

75.370(a)

1456

Proposed
Penalty

Settlement

$8Sl

$400

(The Secretary agrees the unwarrantable failure finding cannot be
sustained and that he will modify the order to a citation issued
pursuant to section 104 (a) (30 U.S . C. §814 (a)) (Tr . 411-412) . )
Jim Walter is ORDERED to pay the penalties shown.
The Secretary is ORDERED to modify the order as indicated.
Docket No. SE 94-586-R
Order No.
3184217

30 C.F.R.
7/22 / 94

§

72.630(a )

The inspec.tor's finding of a violation of section 7.2.630(a)
is AFFIRMED, as is his finding that the violation was due to
Jim Walter's unwarrantable failure to comply. The inspector ' s
S&S finding is VACATED. The Secretary is ORDERED to modify the
order accordingly.
Dismissal of Proceedings
Jim Wa l ter shall pay the assessed penalties within 30 days
of the date of this decision . The Secretary shall modify and
vacate the referenced citations and orders within the same
30 days. These proceedings are DISMISSED .

David F. Barbour
Administrative Law Judge

1457

Distribution:
William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Chamber Building, Suite 150,
Highpoint Office Center, 100 Centerview Drive, Birmingham,
AL 35216 (Certified Mail)
David M. Smith, Esq., Maynard, Cooper & Gail,
1901 Sixth Avenue North, Suite 2400, Birmingham, AL 35203
(Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc.,
P.O . Box 133, Brookwood, AL 35444 (Certified Mail)
rnca\lh

1458

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

AUG 2 4 ·1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 94-118-M
A. C. No. 14-00211-05502
Vondra Clay Pit

ACME BRICK COMPANY,
Respondent
DECISION

Appearances:

Kristi L. Floyd, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, and
Dennis J. Tobin, Conference and Litigation
Representative, Mine Safety and Health
Administration, Grand Junction, Colorado, for
the Secretary;
Steven R. Mccown, Esq., Littler, Mendelson,
Fastiff, Tichy and Mathiason, Dallas, Texas, for
Respondent.

Before:

Judge Maurer

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section lOS(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. · §§ 801
t l ~., the "Act," charging the Acme Brick Company with two
violations of the regulatory standard found at 30 C.F.R.
§ 56.14101(a) (3).
The general issues before me are whether the
respondent violated the cited regulatory standard and, if so, the
appropriate civil penalty to be assessed in accordance with
section llO(i) of the Act.
Pursuant to notice, the case was heard at Hays, Kansas, on
May 31, 1995. At the hearing, Inspector James G. Enderby
testified for the Secretary of Labor. Mr. Clinton L. Bunch,
plant manager, testified for respondent.
1459

STIPQLATIONS

At the hearing the parties entered the f ollow1ng
stipulations into the record (Joint Ex. No. 1) :
Respondent is engaged in mining and selling of clay in
the United States, and its mining operations affect interstate
commerce.
1.

2. Respondent is the owner and operator of Vondra Clay Pit,
MSHA I.D . No . 14-00211.
3. Respondent is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 U.S . C. §§ 801 .e..t. ..a.e.g.
("the Act 11 ) •
4.
matter.

The administrative law judge has jurisdiction in this

5. The subject citation and order were properly served by a
duly authorized representative of the Secretary upon an agent of
respondent on the date and places stated therein, and may be
admitted into evidence for .the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by respondent and the
Secretary are stipulated to be authentic but no stipulation is
made as the their relevance or the truth of the matter~ asserted
therein.
7. The proposed penalties will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violations.
9. Respondent is a medium sized mine operator with 196,073
tons/hours of production in 1992.

1460

DIScuSSION. FINPiNGS AND CONCLUSIONS

On October 20, 1993, MSHA Inspector James G. Enderby issued
section 104(d} (1) Citation No. 4336451 to the respondent because
an International Harvester truck had the brake lines to the front
service brakes disconnected, rendering them inoperable. Fifteen
minutes later, he issued section 104{d} (1) Order No. 4336452 on a
second International Harvester truck for essentially the same
reason.
The particular section of the mandatory standards that the
inspector cited, 30 C.F.R. § 56.1410l(a) (3), provides that : "All
braking systems installed on the equipment shall be maintained in
functional condition . " (Emphasis added).
The standard requires that .all. braking systems, including
front braking systems, installed on the equipment be maintained
in functional condition. The evidence clearly establishes that
the front service brakes on the cited equipment were completely
disconnected and therefore not functional. That is a violation
of the standard. It is as simple as that.
Respondent also believes the citation and order should be
vacated because MSHA conducted the inspection outside the
geographical confines of its jurisdiction.
The Vondra Clay Pit is a small clay pit that the company
mines clay from and then hauls it, using these two trucks, to a
production plant 3 miles away to make the finished proquct, face
brick. The clay pit is subject to MSHA jurisdiction, while_ the
production facility is under OSHA jurisdiction.
Inspector Enderby conducted his inspection of the two trucks
in question while they were parked at the production plant, OSHA
country. However, the inspector had previously observed these
trucks being operated at t~e clay .pit earlier that month and both
the plant foreman, Mr. Lamia and the maintenance man, Mr. Modrow,
informed him that the vehicles had had the front service brakes
disconnected ever since they had been delivered to this
operation, years ago. The front brakes are purportedly removed

1461

from service as a standard practice because of a folkloric notion
popular among truck drivers that you will have better control of
the vehicle in an emergency stop situation without the front
service brakes locking up the front wheels .
Although in an ideal world the inspector would have
inspected the trucks and cited the trucks while they were
operating in an MSHA-regulated environment, I do not find that
fatal to the Secretary's case . The inspector testified that
earlier that month he had personally observed these trucks
operating at the Vondra Clay Pit, and Mr. Bunch also testified t o
the effect that these trucks were used to haul material from the
clay pit to the plant. Mr. Bunch also admitted that the trucks
had been operating in the cited condition, vis-a-vis the front
service brakes, s i nce their arrival at the pit in 1985 in the one
case and 1987 in the other. Accordingly, I find the two
violations of the standard proven as charged.
A "significant and substantial" violation is described in
section l04(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or ot her mine safety or health hazard . "
30 C.F . R. § 814(d) (1) . A violation is properly designated
significant and substantial 11 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 822, 825 (April 1981).
Inspector Enderby opined that if the truck driver had.:to
stop in an emergency, he would not have sufficient braking power
to safely stop t he vehicle. However, I note that with the
exception of the front service brakes all the other braking
systems on the trucks were functional. In addition, one of the
trucks pulls a trailer which also has an independent braking
system . I also note that there is a complete lack of evidence in
the record as to any testing or empirical determination of
whether these trucks would safely come to a stop in the cited
condition. After all, they had been operating in this
configuration for 6-8 years before this violation without mishap.

1462

Really, the only evidence the Secret~ry submitted of any hazard
with regard to operation of these trucks in the cited condition
was the unsubstantiated conclusion of Inspector Enderby that such
a hazard existed. That is not enough to satisfy the Secretary's
burden of proof. I therefore find that it has not been
established that an injury producing event was reasonably likely
to have occurred. Accordingly, it is concluded that the
violations found herein, were not significant and substantial
11
(
S&S 11 ) .
Inasmuch as Citation No. 4336451 does not recite an "S&S"
violation, it must be modified to a citation issued under
section 104(a) of the Act. Likewise, since Order No . 4336452
relies on Citation No. 4336451 to start the 11 d 11 chain, and since
itself does not recite an "S&S" violation, it must also be
modified to a section 104(a) citation.
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act, I conclude and find that a civil
penalty of $100 for each of the violations found herein, or $200
total, is a reasonable and appropriate civil penalty.
ORPER
1. Citation No. 4336451 and Order No. 4336452 ARE MODIFIED
to delete the "S&S" finding and, as modified to section 104(a)
citations, ARE AFFIRMED .
2. The Acme Brick Company IS ORDERED TO PAY the Secr~tary
of Labor a civil penalty of $200 within 30 days of the date of
this decision.

.~,~~
Roy J . Maurer
Admipistrative Law Judge

1463

Distribution:
Kristi L. Floyd, Esq., Office of the Solicitor, U. S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Steven R .. Mccown, Esq., Littler, Mendelson, Fastiff, Tichy &
Mathiason, 300 Crescent Court, Suite 600, Dallas, TX 75201
(Certified Mail}
dcp

1464

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

AUG 2 4 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner
v.

CI VI L PENALTY PROCEEDINGS
Docket No. PENN 94-63
A.C . No. 36-02053-03544
Docket No. PENN 94-64
A.C. No . 36-02053-03545

BUCK MOUNTAIN COAL COMPANY,
and RICHARD KOCHER, SR . ,
OSCAR BLOUGH, JR., DAVI D
ZIMMERMAN, PAUL ZIMMERMAN,
and HAROLD SCHNOKE, as
PARTNERS,
Respondents

Docket No. PENN 94-65
A.C. NO. 36-02053-03546
Docket No. PENN 94- 6 6
A. C. No. 36-02053 -03547
Docket No. PENN 94-104
A . C. No . 36 02053 03548
Buck Mountain Slope

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

CIVIL PENALTY PROCEEDINGS

BUCK MOUNTAIN COAL COMPANY,
and DAVID ZIMMERMAN, PAUL
ZIMMERMAN, HAROLD SCHNOKE,
PARTNERS,
Respondents

Docket No. PENN 94-619

Docket No . PENN 94-~97
Docket No . PENN 94-618

··

A.C . No . 36-02053-03559
Buck Mountain S l ope

1465

DECISION

Appearances:

Gayle Green, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
David Zimmerman, Paul Zimmerman, 1 Harold Schnoke,
Richard D. Kocher, Sr., 2 and Oscar Blough, Jr.,
w;.:Q ~, partners Buck Mountain Coal Company,
Pine Grove, Pennsylvania, for the Respondent.

Before:

Judge Feldman
Preliminar:y Hatters

These proceedings concern a total of 88 citations issued to
Buck Mountain Coal Company (Buck Mountain) , a general partnership, during the period September 1992 through July 1993. A
preliminary hearing in these matters was held on October 25,
1994, in Harrisburg, Pennsylvania, to determine whether the named
partners in these proceedings are jointly and severally liable
for any/or all of the citations in issue.
The preliminary hearing was followed by my Partial Decision
on liability, which is incorporated by reference, wherein I
.
concluded general partners David Zimmerman, Paul Zimmerman and
Harold Schnoke are jointly and severally liable for all citations
issued to Buck Mountain for violations occurring on or before
April 13, 1993. Partial Decision, 16 FMSHRC 2367 (November
1994 ) . Thus, the Zimmermans and Schnoke are jointly and
severally liable for 80 citations in this matter for which the
Secretary has proposed a total civil penalty of $160,938.

David Zimmerman appeared on behalf of his father Paul
Zimmerman who has severe, chronic obstructive pulmonary disease.
(Resp. Ex . 1).
1

Kocher appeared at the October 25, 1994, preliminary
hearing. Blough represented Kocher 1 s partnership interests at
the hearing conducted on June 13, 1995.
2

1466

I further concluded that the Zimmermans and Schnoke
assigned their interest in Buck Mountain, including Buck
Mountain's mineral lease rights at the Buck Mountain Slope, to
Richard Kocher and Oscar Blough, Jr., as of April 14·, 1993.
16 FMSHRC at 2368. Thus, Kocher and Blough are jointly and
severally liable for eight citations with a total proposed civil
penalty of $12,372.
A hearing on the merits was conducted in Harrisburg,
Pennsylvania, on June 13, 1995. At the hearing, counsel for the
Secretary moved for the approval of a settlement agreement
reached with Kocher and Blough. The settlement concerns all
eight of the citations issued after April 13, 1993. These
citations are comprised of three citations issued in Docket
No. PENN 94-66 and five of the 20 citations issued in Docket
No. PENN 94-104. The parties propose a reduction in total civil
penalties from $12,372 to $2,000 to be paid by Blough in monthly
installments of $50.00. The $2,000 penalty represents a $1,850
penalty in Docket No. PENN 94-104 3 and a $150 civil penalty in
Docket No. PENN 94-66.
Blough affirmed the settlement terms on behalf of the
partnership in the absence of Kocher, who is incarcerated for
conduct related to the cited violations. Although the settlement
terms relieve Kocher from civil penalty liability, as a general
partner, Kocher is jointly liable for the $2,000 settlement
penalty. Accordingly, I will approve the settlement and proposed
payment terms advanced by the parties. However, Blough may seek
to recover . Kocher's share of the $2,000 payment.

Docket No. PENN 94-104 concerns 20 citations. This
decision imposes joint and several liability on Paul Zimmerman,
David Zimmerman and Harold Schnoke for a $2,500 civil penalty in
Docket No. PENN 94-104 for the 15 citations attributable to their
mining operations on or before April 13, 1993. Thus, considering
the $1,850 liability of Blough and Kocher for the five remaining
citations, the total civil penalty in Docket No. PENN 94-104 is
$4,350.
3

1467

Statement of the Case

David Zimmerman, Paul Zimmerman and Harold Sclmoke were
general partners of Buck Mountain Coal Company since April 1986.
On April 10, 1986, partners D. Zimmerman, P. Zimmerman and
Schnoke leased the right to extract anthracite coal from the
Buck Mountain Slope from the G.M . P. Land Company, Inc., in return
for a payment of $7.00 per net ton of coal removed.
(P. Ex. 3).
A Legal Identity Report completed May 5, 1986, by Paul Zimmerman,
lists the partners of Buck Mountain as David Zimmerman, Harold
Schnook (sic) and Paul Zimmerman. The parties stipulated that
Buck Mountain, which operated exclusively at the Buck Mountain
Slope in Eastern Pennsylvania, is a very small operator that
produced approximately 14,816 tons of coal in 1993.
(Sec'y
Br . at 4, 5). During this period Buck Mountain had a total of
six or seven employees, including the partners.
On March 5, 1993, an explosion occurred at the Buck Mountain
Slope Mine causing serious burn injuries to three underground
miners. As a c~nsequence of the explosion, the Mine Safety and
Health Administration (MSHA) dispatched an inspection team to
secure the mine and investigate the causes of the explosion.
As a result of the investigation, 80 citations pertaining to the
Zimmermans and Schnoke were issued to Buck Mountain. Of these
80 citations and orders, four orders and one citation, totaling
$130,102 of the $160,938 total proposed civil penalties, pertain
to cited violations that contributed to the March 5, 1993,
explosion. The investigation revealed the contributing causes of
the explosion were the presence of a non-permissible 40-volt
battery locomotive inby the last open crosscut; a brok~n
compressed airline that operated auxiliary fans ventilating_ the
No. 5 face and No. 6 chute; the failure to conduct an adequate
preshift examination; and an insufficient velocity of air
ventilating the face .
The investigation was conducted by James Dickey arid
Leonard Sargent. On March 11 and March 26, 1993, Kocher
allegedly threatened Dickey with bodily harm. On March 29,
1993, Dickey was accompanied to the mine by Sargent whereupon
Kocher allegedly threatened both inspectors. Dickey returned to
the mine on April 20, 1993, where he was allegedly threatened by
Paul Zimmerman.

1468

Kocher plead guilty to one count of threatening Federal
officials Dickey and Sargent on March 29, 1993, in violation of
18 U.S.C. § 115(a) (1) (B).
Kocher also plead guilty to falsifying
training records in violation of 18 U.S.C. §§ 1001 arid 1002(b).
Kocher was sentenced to 18 months in prison.
Paul Zimmerman plead guilty to one count of threatening
Federal official Dickey on April 20, 1993, in violation of
18 U.S.C. § llS(a) (1) (B).
Zimmerman was sentenced to three years
probation and fined $100.00.
Findings of Fact and Conclusions of Law
At the hearing, the parties stipulated to the fact of
occurrence of the 80 cited violations, as well as to the degree
of negligence and the gravity referenced in the citations and
orders in issue. Thus, the only outstanding issue to be resolved
is the appropriate civil penalties to be assessed.
It is well settled that the Commission and its judges are
not bound by the Secretary's proposed civil penalty assessments.
Warren Steen Construction, Inc., 14 FMSHRC 1125 (July 1992);
Sellersburg Stone Co., 5 FMSHRC 287, 291 (March 1983), aff'd
Sellersburg Stone Co. v. FMSHRC, 736 F.2d. 1147, 1153 (7th Cir.
1984) . Rather, the proper penalty to be assessed must be
determined by the trier of fact_ based upon findings concerning
the statutory penalty criteria in section llO(i) of the Act,
30 u.s.c. § 820 (i).
Section llO(i) of the Act requires consideration of six
criteria in assessing appropriate civil penalties:
(1) the operator's history of previous violations;
(2) the appropriateness of the penalty to the size of
the business of the operator; (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) whether good faith was demonstrated .
in attempting to achieve prompt abatement of the
violation.
(Emphasis added).

1469

Specific factual findings supported by the record developed
during the course of an adjudicatory proceeding must be made for
each of the statutory civil penalty criterion. Dolese Brothers
Company, 16 FMSHRC 689, 695 (April 1994); Westmoreland Coal
Company, 8 FMSHRC 491, 492, (April 1986}. As noted, the civil
penalties to be assessed de novo in these proceedings can
appropriately be greater than, less than, or the same as those
proposed by the Secretary. Sellersburg, 5 FMSHRC at 293. Here,
the Secretary seeks to impose total civil penalties of $160,938.
Thus, an analysis of the applicable penalty criteria follows.
The record reflects a history of 39 violations cited during
46 inspect i on days that occurred during the 24 month period
preceding the March 5, 1993, explosion. I view less than one
violat ion per inspection day as a neutral statutory penalty
factor that does not materially impact on the appropriate penalty
to be assessed.
As aggravating factors, the magnitude of the proposed
penalty is supp~rted by the high degree of negligence manifested
by the aggravated conduct specified in the stipulated orders
associated with the March 5, 1993, explosion. Similarly, this
high penalty is also consistent with the extremely serious
gravity o f the cited violations that contributed to the explosion
as demonstrated by the resultant serious burn injuries. A
furthe r aggravating circumstance is the lack of good faith
efforts to achieve rapid compliance given the threats by Paul
Zimmerman and Kocher , who was then the foreman of Buck Mountain.
However, the fundamental task in this process is to
determine the appropriate penalty to be assessed . In thisregard, the statutory criteria mandates the civil penalty must
be appropriate to the size of the business of the operator.
Thus, imposition of a penalty without regard to the size of the
operator is contrary to the Act. Similarly, a very large penalty
imposed on a very small operator is inappropriate.
The parties have stipulated to Buck Mountain's production
of only 14,816 tons of annual coal production in 1993. MSHA
Supervisory Inspector James Schoffstall testified Buck Mountain's
extraction efforts consisted of only one unit staffed by six or
seven people who mined by hand after separating the coal by

1470

drilling and blasting.
(Tr. 129, 131} . 4 In fact, Schoffstall
opined Buck Mountain's operations were so small that investment
in mechanized mining equipment "wouldn't be feasible."
(Tr. 131). With regard to the respondents' profitability,
Schoffstall stated, "you could make a living, that's about it. 5
{Tr. 132).
In recognition of this undisputed evidence, the
Secretary concedes "there is no question Buck Mountain is a very
small business in comparison to coal mines nationally ... 11
{Sec'y Br. at S).
Finally, although David Zimmerman and Schnoke continue to be
employed as miners by successors at the Buck Mountain Slope, the
record reflects the Buck Mountain partnership consisting of the
Zimmermans and Schnoke ceased to exist as an operator as of
April 14, 1993. While the imposition of a $160,000 civil penalty
undoubtedly would have had an adverse effect on this small
operator's ability to continue in business, the Commission has
not addressed the applicability of the effect of the penalty on
an operator's ability to continue in business ·when the operator
is no longer in business. See Spurlock Mining Co., Inc.,
16 FMSHRC 697 (April 1994).
However, the criteria .in section llO(i) are not mutually
exclusive. Thus, the fact that a sma11 operator is no longer in
business does not invalidate the other statutory criteria.
For
example, gravity and the degree of negligence remain relevant to
imposition of the proper civil penalty. Similarly, the size of
the operator during the one year period preceding the cited
violations remains a relevant statutory consideration despite the
operator's termination of business.
As a final matter, there is a rebuttable presumption that
the imposition of a civil penalty will not adversely effect an
operator's ability to continue in business.
Sellersburg,
5 FMSHRC at 287. An operator has the burden of proving,

4

All references to transcript pages in this decision refer
to the June 13, 1995, hearing.
5

Tax returns for 1993 for David Zimmerman, Paul Zimmerman
and Harold Schnoke reflect partnership income of $24,809, $14,~43
and $23,510, respectively.
(Resp. Exs. 3, 6, 10).

1471

through the introduction of financial documentation, that a
proposed penalty should be reduced for financial reasons .
Spurlock, 16 FMSHRC at 700.
If established by a respondent, an
inability to pay a proposed penalty may be a mitigating
consideration in lowering the penalty. Therefore, . it is not
uncommon for respondents to furnish personal financial
information to support a reduction in penalty.
However, the Secretary has advanced the converse theory that
the ability to pay a civil penalty, based on one's personal
assets, is a factor that should be superimposed on the penalty
c riteria, thu s increasing a penalty that would o t herwise be
inappropriate under section llO(i). For example, the Secretary
has sought t o obtain bank statements and real estate appraisals
of the respo ndents' homes and property to s u pport higher
penalties despite Buck Mountain's diminutive size . However,
f inancial information, such as bank accounts, tax returns and
propert y appraisals, cannot be used to overcome the statutory
penalty criteria that precludes very large penalties for small
opera t ors.
In v i ew of t he very small nature of the Buck Mountain
partnership, I am reducing the Secretary's proposed penalties in
these proceedings as follows:
Docket No.

Proposed Penalty

PENN 94-63

$

1,964

$

200

PENN 94 - 64

$

1,54 6

$

150

PENN 94-65

$

1,726

$

150

PENN 94 - 104

$ 25,600

$ 2,500

PENN 9 4-597
PENN 94-618
PENN 94-619

$130,102 6

$13,000

Total

$160,938

$16,000

· 6

Assessed Penalty

Identical Docket Nos. PENN 94-597, PENN 94-618 and
PENN 94-619 were created for each of t?e named partners,
David Zimmerman, Paul Zimmerman ·and Harold Schnoke.
1472

In reducing these proposed penalties, I note the
percentage reduction is compatible with the degree of reduction
in the Secretary's settlement agreement with Blough and Kocher.
I also note MSHA Conference and Litigation Representative
Gerald Moody's testimony that 11 [Kocher, as mine foreman] was the
number one negligent person in this whole situation."
(Tr. 107).
Kocher•s negligence, as an operator's agent, is imputable to the
respondent partnership. Rochester & Pittsburgh Coal Co.,
13 FMSHRC 189 (February 1991). However, even the concept of
imputed negligence has its limitations in the face of the
disproportionate $160,938 proposed penalty in these cases. 7
In imposing these reduced penalties, I am sensitive to the
Secretary's concern that the gravity of the March 5, 1993,
accident must not be trivialized by a substantial reduction in
penalties.
(Sec'y Br. at 30). Rather, the Secretary urges me
not t o permit "the small size of the mine [as] a factor to be
considered in determining the amount of the penalties . .. to
outweigh the high gravity and negligence which has been
stipulated to in this case."
(Sec'y Br. at 29). However, I do
not consider a $16,000 penalty on a very small operator to be
trivial. Moreover, the penalty criteria in section llO(i) of the
Act must be applied as a whole. The negligence and gravity
criteria cannot overcome the statutory mandate that the ultimate
penalty must be appropriate to the size of the business. 8

7

Ironically, the Secretary's proposed settlement with
Blough sought to relieve Kocher of liability for civil . penalties
incurred by Kocher's partnership.
8

While not asserted by the Secretary, an argument could be
made that the statutory penalty criteria applies to individual
penalties proposed for e~ch citation. However, the cumulative
effect of numerous citations {in this case 80 citations) does not
alter the requirement of proportionality for the total penalty
sought to be imposed.

1 47 3

QRDER

In view of the above, all citations and orders in these
docket proceedings ARE APFXRMBD.
Pursuant to the parties' settlement agreement,
Richard Kocher, Sr., and Oscar Blough, Jr., are jointly and
severally liable, as partners, for payment of a total civil
penalty of $2,000 consisting of a $1,850 penalty in Docket
No. PENN 94-104 and a $150 penalty in Docket No. 94-66.
Consistent with the parties' agreement, payment is to be made in
forty (40) monthly installments of fifty dollars ($50.00) each.
The first installment is due on October 1, 1995, with subsequent
payments due on the first of each month until the full $2,000
civil penalty is received. Upon timely receipt of the entire
$2,000 civil penalty, these matters ARE DISMISSED.
As indicated above, Paul Zimmerman, David Zimmerman and
Harold Schnoke are jointly and severally liable as partners of
Buck Mountain Coal Company for a total civil penalty of $16,000
in Docket Nos. PENN 94-63, PENN 94-64, PENN 94-65, PENN 94-66,
PENN 94-104, PENN 94-597, PENN 94-618 and PENN 94-619. Full
payment is to be made in four quarterly installments of $4,000
each. The first $4,000 payment is due on September 30, 1995,
with subsequent payments due on December 30, 1995, March 30, 1996
and June 30, 1996. Upon timely receipt of the entire $16,000
civil penalty, these docket proceedings ARE DISMISSED.

-

~---Jerold Feldman
Administrative Law Judge

1474

Distribution:
Gayle Green, Esq., Office of the Solicitor, U.S. De pt. of Labor,
3535 Market Street, Room 14480, Philadelphia, PA 1 91 04
(Certi fied Mail)
Richard D. Kocher, Sr., R.D. 4, Box 393A, Pine Grove, PA 17963
(Certified Mail)
Richard D. Kocher, Sr . , Buck Mountain Coal Company No. 2,
R.D . #2, Box 425 B-2, Pine Grove, PA 17963 {Certified Mail)
Oscar Blough, Jr., R.D. 2, Pine Grove, PA

17963 {Certified Mail)

Oscar Blough, Jr., Buck Mountain Coal Company No. 2, R. D. #2,
Box 425 B-2, Pine Grove, PA 17963 {Certified Mail)
David Zimmerman, Partner, R.D. 4, Box 357B, Pine Grove, PA 17963
(Certified Mail)
David Zimmerman, Partner, Buck Mountain Coal Company No. 2,
R.D. #2, Box 425 B-2, Pine Grove, PA 17963 (Certified Mail)
Paul Zimmerman, Partner, R.D . 4, Box 3570, Pine Grove, PA 17963
{Certified Mail)
Paul Zimmerman, Partner, Buck Mountain Coal Company No. 2,
R . D . #2, Box 425 B- 2, Pine Grove, PA 17963 {Certified Mail)
Harold Schnoke, Partner, R.D . 3, Box 77C, Pine Grove,
(Certified Mail)

p~

17963

Harold Schnoke, Partner, Buck Mountain Coal Company No. 2,
R.D. #2, Box 425 B-2, Pine Grove, PA 17963 {Certified Mail)
/rb

1475

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

AUG 2 5 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
ON BEHALF OF
BENITO OCASIO HERNANDEZ,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 95-125-DM
SE MD 94-12
Cantera Espinosa

v.
SAN JUAN CEMENT COMPANY I INC. I
Respondent

DECISION
Appearances:

James A. Magenheimer, Esq., Office of the
Solicitor, U.S. Department of Labor, New York,
New York for the Complainant;
Rafael Cuevas Kuinlam, Esq., Hato Rey, Puerto Rico
for the Respondent.

Before:

Judge Hodgdon

This case is before me on a complaint of discrimination
brought by the Secretary of Labor on behalf of Benito Ocasio
Hernandez against San Juan Cement Company under Section 105(c)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(c).
For the reasons set forth below, I find that, while
Mr. Ocasio engaged in activities protected under the Act, the
Respondent was not motivated in any part by that activity in
suspending him for eight days.
The case was heard on June 7 and 8, 1995, in Hato Rey,
Puerto Rico. Roberto Torres Aponte, Jose Luis Mojica,
Marcos E. Rivera and the Complainant testified in support of his
case.
Victoriano Garcia Santiago, Florentino Coreano Moreno and
Rolando Melendez Santiago testified for the Respondent. The
parties also filed briefs which I have considered in my
disposition of this case.

1476

MOTION TO DISMISS

As a preliminary matter, the Respondent argues that this
case should be dismissed because the Secretary has not followed
h i s own rules. Specifically, the company contends that
Commission Rule 41{a), 29 C . F.R. § 2700.4l(a), which requires the
Secretary to file a discrimination complaint 11 within 30 days
after his written determination that a violation has occurred"
(emphasis added), was not complied with because the company never
received such a written de t ermination. This argument is without
merit.
Initially, it should be noted that the rule in question is
the Commission ' s and not the Secretary's so that the well settled
principle of law that an administrative agency must follow it's
o wn rules would not be applicable in this case.
Secondly, when
read in conjunction with Section 105(c) (3) of the Act, 30 U. S.C.
§ 815(c) (3), which requires that 11 [w)ithin 90 days of the receipt
of a complaint · . . . the Secretary shall notify, in writing, the
miner . . . of his determination whether a violation has
occurred" (emphasis added), it is apparent that the written
determination referred to in Rule 41{a) is the written
determi nation required by the Act to be given to the Complainant.
Thus, there is nothing in either the Act or Rule 4l(a) t hat
requires a written determination to be given to the company.
Finally, a l though the record is silent concerning whether
the Secretary filed this complaint withi n 30 days of notifying
the Complainant that a violation had occurred, the Commission has
long held that the time limitations in discrimination cases are
not jurisdictional and that dismissal is only appropriate 11J..f the
operator demonstrates mater i al legal prejudice attributable to
the delay." Secretary on behalf of Hale v . 4-A Coal Company,
Inc., 8 FMSHRC 905, 908 (June 1986) (citations omitted); see also
Secretary on behalf of Nantz v . Nally & Hamilton Enterprises,
I n c., 16 FMSHRC 2208, 2215 (Nove~ber 1994); Boswell v . National
Cement Co . , 14 FMSHRC 253, 257 (February 1992).
In this case,
t h e Responden t has not alleged any prejudice resulting from its

1477

failure to receive a written determination, and, in fact, has
admitted that it was not prejudiced by not receiving a written
determinat i on.
(Tr . l, 87-8.} 1
The Respondent's claim that the failure of the Secretary to
provide it with a written determination that a .violation occurred
should result in the dismissal of the complaint is unsupported by
either the facts or the law. Therefore, the motion to dismiss is
DENIED .

FACTUAL SETTING
The basic facts are not disputed. On April 18, 1994,
Victoriano Garcia, a maintenance foreman, told Luis Mojica, a
mechanic, and Benito Ocasio, his helper, to go the ash silo and
retrieve a vibrator for use in another part of the plant.
Although Mojica and Ocasio were apparent l y aware that the sil o
was in a restricted area due to dangerous conditions, they both
proceeded to the area. On arriving, they discovered t h e area
blocked off by pylons and yellow ribbons. Unable to perform
their duties, · they returned to the locker area to await further
assignment. Garcia was informed that the vibrator was not'
obtained because the area could not be entered .
On April 20, 1994, Garcia assigned Mojica and Ocasio, along
with Marcos Rivera, a welder, to repair a screw conveyor. While
waiting for the acetylene for the welder to be brought to the
conveyor, Ocasio took a piece of steel to the heavy equipment
shop to have it cut into a plate to be used for heating food .
When Garcia observed Ocasio in the shop, he told Ocasio to return
to his workplace. Ocasio did so.
Shortly thereafter, Ocasio saw Garcia coming by the conveyor
and called him over. A confrontation over the incident in the
shop ensued resulting in both parties accusing the other of a
lack of respect.

There is a separate transcript, beginning with p age one,
f or e a ch d ay of the hearing. Acc<:>rdingly, the transcript f or
J une 7 wi l l be c i ted as 11 Tr.l " apd the transcript for June 8 will
be c i ted as 11 Tr . 2 . 11
1478

Garcia reported this confrontation to" his supervisor,
Florentino Coreano. Coreano asked Garcia to make a written
report of the incident. After consulting with Rolando Melendez,
the Director of Human Resources and Industrial Relations',
Coreano went to where Ocasio was eating breakfast, told him he
was suspended and directed him to go to Melendez• office with his
union delegate.
Melendez discussed the incident with Ocasio and his delegate
in his office. At that time, Melendez had Garcia's written
report and some notes he had made on the report based on his
telephone conversation with Coreano.
(Comp. Ex. 2.) Melendez
informed Ocasio that he was suspended until a meeting with the
union was held the next day, April 21, at which time a further
decision on discipline would be made.
The meeting with union was held on April 21, but Ocasio did
not appear, so his case was not discussed. At the next meeting,
April 29, Ocasio was present along with Garcia, Mojica, Marcos
Rivera, Coreano and the union officials. After interviewing the
witnesses, Melendez concluded that an eight day suspension was
sufficient and terminated it.
The April 18 episode concerning the aborted attempt to get
the vibrator was not mentioned by any party at either the
April 20 or April 29 meeting with Melendez. However, by April 29
Melendez was aware that Ocasio was claiming that his suspension
was the result of his refusal to enter the restricted area to
obtain the vibrator because Ocasio had filed a discrimination
complaint with the Mine Safety and Health Administration (MSHA)
on April 21, (Resp. Ex. N.), and the company had been informed of
the complaint sometime before April 29.
FINDINGS OF FACT AND CONCLUSIONS OF LAW

In order to establish a prima, facie case of discrimination
under Section lOS(c) of the Act, a complaining miner bears the
burden of establishing (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in
any part by that activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2768 (1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d

14 79

1211 (2d Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (1981); Secretary on behalf of
Jenkins v. Hecla~Day Mines Corp . , 6 FMSHRC 1842 (1984); Secretary
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp . ,
709 F.2d 86 (D.C. Cir. 1983).
The operator may rebut the prima f acie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity.
Pasula, 2 FMSHRC at 2799-800.
If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively 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. at 2800;
Robinette, supra at 917 - 18.
In this case, the Complainant argues that he engaged in
protected activity when he refused to enter the danger area in
the silo to retrieve a vibrator and that because of that refusal,
the company suspended him for eight days .
In response, San Juan
Cement avers that Mr. Ocasio was suspended for his
insubordination to his foreman two days later and maintains that
the suspension had nothing to do with his refusal to enter a
dangerous place. Mr. Ocasio contends that the insubordination is
merely a subterfuge for action taken because of the protected
activity. The evidence, however, does not support the
Complainant's contention that his suspension was for having
engaged in protected activity.
It is well settled that when a miner refuses to work in
conditions he believes, reasonably and in good faith, to be
dangerous, his refusal is protected under the Act.
Simpson v.
FMSHRC, 842 F.2d 453 (D.C. Cir. 1988); Miller v. FMSHRC, 687 F.2d
194 (7th Cir. 1982); Secretary on behalf of Pratt v. River
Hurricane Coal Co., 5 FMSHRC 1529 (September 1983); Secretary on
behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993 (June i983);
Haro v. Magma Copper Co., 4 FMSHRC 1935 (November 1982);
Robinette, supra.
Consequently, I conclude Mr. Ocasio engaged in
protected activity when he declined to go beyond the pylons and
ribbons marking the danger area to get the vibrator.

1480

However, Mr. Ocasio has failed to show that his subsequent
suspension was motivated by that refusal. The only evidence to
support his claim is his own testimony and at every significant
point his testimony is uncorroborated. Furthermore, . his
portrayal of his testimony as corroborated, when in fact it was
not, among other factors, reflects adversely on his credibility .
Mr. Ocasio testified that he and Mojica went to the silo
area as directed by Garcia, but could not enter because it was
cordoned off. He stated that Garcia came up to them in that area
and asked if the vibrator had been removed and when they told him
that it had not because of the danger, Mr. Ocasio "noticed that
he [Garcia] became very upset, and he removed his hardhat in
order to throw it on the f l oor."
(Tr.1, 26.)
The Complainant related that he encountered Garcia later in
the afternoon and Garcia again told him to remove the vibrator.
He claimed that when he again refused because of the risk, Garcia
said "[t]hat if I didn't remove it, I would pay dearly . "
(Tr.1, 29.) Mr. Occasio testified that Mojica was not present
during this encounter.
Concerning the same incident, Mr. Garcia testified that he
told Mojica and Ocasio to go to the silo to get the vibrator and
that later he saw them standing near the silo and Mojica yelled
"Garcia, it says that you can't come in."
(Tr.1, 136 . ) Ga~ciia
said that he did not reply to them, but "[s]ince I already had an
emergency, I decided right there to just keep walki?g and mention
it to Mr. Felipe Santiago that there was an emergency dealing
with safety. 11
(Tr .1 1.37.)
He denied that he insisted that the
Complainant enter the restricted area or tell him that he would
"pay dearly" if he did not .
(Tr. l, 138.)
A third version of the incident was given by Mr. Mojica.
He testified that Garcia directed Ocasio and him to go to the
silo to get a vibrator, that when they got to the silo they found
the area cordoned off, so they returned to the tool shed.
According to Mr. Mojica, after the · initial order he did not see
Garcia again and the Complainant, alone, "went over there and
told Garcia that we couldn't go into the area because it was
fenced in. 11
(Tr.2, 53.) Mr . Mojica stated further that Ocasio
did not "say anything" about Garcia's response when informed that
they could not get the vibrator.
(Tr . 2, 54, 63.)
Finally,

1481

Mr. Mojica related that Garcia had never mentioned the vibrator
to him again, nor had he been subjected to any type of adverse
action for r efu sing to remove t he vibrator .
If Garcia had reacted as described by the Complain ant , that
is taking off his hat as if he was going to throw it on the
groun d and accosting Ocasio a second time to insist that he
retrieve the vibrator and threatening that he would pay dearly if
he did not, then it would be possible to infer that there was
some connection between the refusal and the suspension. However,
no other evidence supports the Complainant's version.
According to Garcia and Mojica, the refusal to enter the
silo was not consequential. In addition, Mojica was not present
to see Garcia become angry at the refusal as claimed by Ocasio .
Finally, if Ocasio was alone when he told Garcia that they would
not get the vibrator, and Garcia reacted angrily, and if Garcia
later threatened Ocasio , it is curious that Ocasio never
mentioned any of this to Mojica, or that Mojica was never
disciplined for the refusal in view of Garcia ' s alleged anger.
Essentially, what the evidence in this case shows, if the
Complainant's testimony is · not accepted, as I do not, is a
refusal to enter an unsafe area on April 18, and a suspension on
April 20. Other than the proximity in time, there is nothing to
connect one with the other. At the time the Complainant was
suspended by the personnel director on April 20, the personnel
director was not even aware of the April 18 incident . Nor did
anyone, including Ocasio, mention it to Mr. Melendez when he met
with Ocasio and his union delegate to inform them of t~e
suspension .
The Commission has held that 11 [c]oincidental timing can be
.indicative of discriminatory motivation . 11 Meek v. Essroc Corp.,
15 FMSHRC 606, 612 (April 1993); Bradley v. Belva Coal Co . ,
4 FMSHRC 982, 992 (June 1982); Chacon, supra at 2511. However,
in these cases there were other indications of discriminatory
intent. Here there is nothing else.
Accordingly, I conclude that the Complainant has not met his
burden of proving that his suspension was based in any part on
h i s r efusal to enter a dangerous area . Furthermore, I conclude
that even if Mr . Ocasio had establi shed a prima facie case, the

1482

company has successfully rebutted the case by proving that the
suspension was for the confrontation with Garcia on April 20 and
not for the refusal on April 18, which the person suspending him
did not even know about.
ORDER

Since the Secretary has failed to show that Mr. Ocasio's
eight day suspension was, in any part, the result of his refusal
to enter a restricted area, it is ORDERED that the complaint of
the Secretary filed on behalf of Benito Ocasio Hernandez against
San Juan Cement Company under Section lOS(c) of the Act is
DISMISSED.

{~:!/:4

Administrative Law Judge
(703) 756-4570

Distribution:
James A. Magenheimer, Esq., Office of the Solicitor, U.S.
Department of Labor, 201 Varick Street, Room 707, New York, NY
10014 (Certified Mail)
Rafael Cuevas Kuinlam, Esq., Cuevas, Kuinlam & Bermudez, Hato Rey
Tower Bldg., Suite 903, 268 Munoz Rivera Avenue, Hato Rey, PR
00918 (Certified Mail)
/lbk

1483

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

AUG 2 5 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. SE 95-143
A.C . No. 01-01322-03990
No. 5 Mi ne

JIM WALTER RESOURCES, INC.,
Respondent
DECISION

Appearances:

William Lawson, Esq., Office of the Solicitor,
U. S. Department of Labor, Birmingham, Alabama,
for the Petitioner;
R. Stanley Morrow, Esq . , Birmingham, Alabama,
for the Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d} of the Federal Mine Safety and
Health Act of 1977 (the Act). At hearings Petitioner filed a
motion to approve a settlement agreement and to dismiss the case.
Vacation of Citation No. 3182463 and a reduction in penalty for
the remaining violations from $19,500 to $10,500 were proposed .
I have considered the representations and documentation submitted
in this case, including the representations on the record art
hearing, and I conclude that the proffered settlement is
acceptable under the criteria set forth in Section llO(i} of the
Act.
WHEREFORE, the motion for app oval of settlement · is GRANTED,
and it is ORDERED that Respondent ,ay a penalty of $10,500 within
30 days of this order .

Gary Mel k
Administrative

1 48 4

Distribution :
William Lawson, Esq., Office of the Solicitor, U. S . Dept . of
Labor , Highpoint Office Center, Suite 150, 100 Centerview Driv e,
Birmingham, AL 35216
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box
133, Birmingham, AL 35444
/jf

1485

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

August 25, 1995
SECRETARY OF LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
DELBERT W. BENNETT,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. VA 95-69-DM
MSHA Case No. NE MD 95-05

v.

Applicant

Grayson Quarry

CARDINAL STONE COMPANY,
Respondent

ORDER OF TEMPORARY REINSTATEMENT

On August 11, 1995, the Secretary filed an application for
temporary reinstatement on behalf of Delbert W. Bennett. The
application for temporary reinstatement was mailed to Cardinal
Stone Company, (Respondent), by certified mail, return receipt
requested.
On August 25, 1995, the Secretary filed a motion for
temporary reinstatement. Attached to the motion is a copy of a
return receipt, indicating receipt by Respondent of the
application for temporary reinstatement on August 14, 1995 . To
date, the Respondent has not advised the Chief Administrative Law
Judge on his designee, whether a hearing is requested.
The
Secretary asserts that Respondent has not notified the Secretary
whether a hearing is requested .
29 C.F . R.

§

2700.45(C) provides, as pertinent, as follows:

Within 10 days following receipt of the
Secretary's application for temporary reinstatement,
the person against whom relief is sought shal l
advise the Commission's Chief Administrative Law
Judge or his designee_, and simultaneously notify
the Secretary, whether a hearing on the
application is requested . If no hearing is requested,
the Judge assigned to the matter shall review

1486

immediately the Secretary's applica:ion and if based on
the contents thereof the Judge detf·.rmines that the
miner's complaint was not frivolously brought, he shall
issue immediately a written order of temporary
reinstatement.
More that ten days have elapsed following receipt by
Respondent of the Secretary's a application for temporary
reinstatement. No request has been received from the Respondent
requesting a hearing on the application. I have reviewed the
Secretary's application. Based on the contents thereof, i
determine that the complaint of Delbert W. Bennett was not
frivolously brought.
According, it is ORDERED, that thE respondent reinstate
Delbert W. Bennett to the position he held immediately prior to
being fired or to a similar position at the same rate of pay,
and with the same or equivalent duties assigned to him. It is
further ORDERED that the reinstatement shall remain in effect
pending a final order by the Commission upon Applicant's
Complaint of Discrimination.

~Weib

Administrative Law Judge
(703) 756-5233

Distribution:
Caryl Casden, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
Cardinal Stone Company, Route 1, Box 452, Galax, VA 24333
(Certified Mail)
Delbert W. Bennett, 108 Pickshin Drive, Dobson, NC 27017
(Certified Mail)

1487

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #i80
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

AUG 2 5 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 93-375
A.C. No. 42-01697-03653

v.
C.W. MINING COMPANY,
Respondent

Bear Canyon No. 1 Mine

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

Docket No. WEST 94-399
A.C. No. 42-01697-03667 A

v.
Bear Canyon No. 1 Mine
CYRIL JACKSON, .employed by
C.W. MINING COMPANY,
Respondent
DECISION
Appearances:

Kristi Floyd, Esq., Office of the Solicitor, U. S.
Department of Labor, Denver , Colorado, for
Petitioner;
Carl E. Kingston~ Esq., Salt Lake City , Utah, for
Respondents.

Before:

Judge Manning

These cases are before me on petitions for assessment of
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against c . w.
Mining Company ("C.W. Mining") and Cyril Jackson, pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 u.s . c. §§ 815 and 820 ("Mine Act'')The petitions allege that each respondent violated the mine's ventilation plan.
For the reasons set forth below, I find that c.w. Mining violated
the ventilation plan, that the violation was of a significant and
substantial nature, but that it was not caused by C.W. Mining's
unwarrantable failure.
I assess a civil penalty in the amount of
$2,000.
I find that Cyril Jackson did not knowingly violate the
ventilation plan and I dismiss the proceeding filed against him.

1488

A hearing was held in these c~ses on February 7, 1995, in
Salt Lake City, Utah. The parties presented testimony and
documentary evidence and filed post-hearing briefs.

I.

FINDINGS OF FACT

The Bear Canyon No. 1 Mine is an underground coal mine in
Sevier County, Utah. On January 20, 1993, MSHA Inspector Fred
Marietti issued c.w. Mining an order of withdrawal (the "order")
under section 104(d) (2) of the Mine Act alleging a violation of
30 C.F.R. § 75.370(a) (1) at its Bear Canyon No. 1 Mine. 1 The
order states the following:
The continuous mining machine was cutting and loading coal in the pillar split
between No. 4 and 5 rooms. There appeared to
be little air over the machine. The air was
measured with an anemometer, and no movement
was indicated. The split was broke through
on the right corner about a 3 feet X 3 feet
opening to the gob. The hole was partially
b l ocked off by cave gob. The section foreman
was observing the mining standing next to the
writer. It was obvious that there was little
air. The dust was boiling back towards the
operator's compartment. This machine was in
the east bleeder section, MMU006.
In the order the inspector indicated that the alleged violation
was significant and substantial and was caused by c.w. Mining's
high negligence. The Secretary assessed a penalty of $2,500
against c.w. Mining under section llO(a) of the Act and a penalty
of $3,000 against Cyril Jackson under section llO(c).
After arriving at the mine, Inspector Marietti proceeded to
the east bleeder section. On his way to the face area he observed Cyril Jackson, a sec tion and production foreman, in Room 4
setting a breaker row with other miners. 2 (Tr. 61-62, 84, 170,
218) . The inspector was accompanied by Ken Defa, the mine superintendent. Marietti and Defa then proceeded to Room 5.
(Tr. 85,
109).
In this area, the inspector observed a shuttle car.
Id.
The cited safety standard provides that all coal mine
operators "shall develop and follow a ventilation plan approved
by the district manager." The order alleges that C.W. Mining was
not following its approved ventilation plan.
2

Inspector Marietti apparently used incorrect numbers when
referring to various rooms on the section.
(Tr. 85, 171). I
have used his numbering system because his numbers were used by
all witnesses throughout the hearing.

1489

He later returned to the shuttle car and issued a citation because it was not in permissible condition.
(Tr. 163, 260; Ex.
G-8). Marietti and Defa then proceeded to the face area.
(Tr. 171). In the meantime, Jackson had walked past Marietti and
Defa to the face and arrived in that area before they did.
(Tr . 1 7 1 , 2 19 - 2 2 O) .
At the face, Ryan Thompson was operating a continuous mining
machine.
C.W. Mining was retreating from the east bleeder section and was, therefore, removing the pillars. The pillar between crosscut 4 and 5 had been split on a previous shift. 3 For
reasons that are not clear, the entire split was not cut and a
wall of coal was left at the back. A hole about three by five
feet in diameter was cut on the right side of this wall.
(Tr .
58, 156). The gob was behind this wall and the hole was partially blocked because the roof had caved in the gob.
Id.
Thompson was cutting into the pillar of coal to the right of the
split, called a fender, when Jackson arrived. Coal dust was
blowing back over the cont i nuous miner.
(Tr. 59-60, 81~82, 124).
The parties offered conflicting testimony as to the events
that followed.
C.W. Mining's witnesses testified that Thompson
had just started mining the fender and had not completely fi l led
the first shuttle car with c oal when Jackson arrived.
(Tr. 159).
In addition, they testifi e d that Jackson arrived at the face less
than a minute before the inspector.
(Tr. 171-172, 220-222).
Jackson stated that he immediately saw that there was a ventilation problem and attempted to signal Thompson to stop mining.
(Tr. 220-222). Defa testified that when he saw the dust, he
started examining the curtains to find the problem .
(Tr . 87,
173). When the inspector told Defa and Jackson that he was issuing an order, they replied that they saw the violation, but that
they did not understand why an order was being issued.
(Tr. 68,
177, 222).

3

Mr. Thompson testified that he mined part of the split
earlier on the same shift.
(Tr. 121). I have not relied upon
this testimony because it is contrary to the testimony of Defa
and Jackson and because it would have been difficult, if not
impossible, for Thompson to have finished cutting the split that
morning.
(Tr. 203, 237-238). C.W. Mining is required to cut
pillars in an approved pattern and bolt the roof after each cut.
(Tr. 51; Ex. G-3). There was no dispute that the pillar split
was bolted and clean at the time Inspector Marietti arrived at
about 9:45 a.m. Earlier in the shift, Thompson had been removing
the stump from another pillar.
(Tr. 121, 215-216). There was
not enough time after the start of the shift, 6:00 a . m., for him
to have removed the stump, mined the last section of the split,
and for the crew to have cleaned and bolted the area.
(Tr. 66).

1490

The Secretary takes the position that Jackson arrived at the
face several minutes before the inspector and he made no attempt
to stop Thompson from mining. (Tr. 60-61, 77-78, 255). Inspector
Marietti testified that he waited a short time for Jackson to
take some action and, when he did not, he told Jackson that he
was going to issue an order. Id. The inspector testified that
Jackson then asked him if Thompson could finish loading the shuttle car before he shut down.
(Tr. 101). When the inspector
refused this request, Jackson shut down the continuous miner.
(Tr. 100-101, 108).
Inspector Marietti issued the unwarrantable failure order
based on the conditions he observed and the events that occurred
at the face .
(Tr. 60-61) . The violation was abated a few hours
later by tightening existing curtains and installing a line curtain brought in from another section.
(Tr. 69, 70-71, 128, 201).

II.

SUMMARY OF THE PARTIES' ARGUMENTS

c.w. Mining does not dispute that the conditions observed by
Inspector Marietti violated the mine's ventilation plan.
It contends, however, that the violation was not S&S, was not caused by
its unwarrantable failure, and that Jackson did not knowingly
authorize the - violation.
A.

Secretary

The Secretary contends that the violation was S&S because,
if left unabated, the condition "would reasonably likely result
in an accident, resulting in an injury of a very serious nature."
(S . Br. 6). He argues that c.w. Mining was grossly out of compliance with its ventilation plan because the inspector detected
no air movement with his anemometer. The Secretary maintains
that the conditions presented three distinct hazards;
i nhalation
of respirable dust, ignition or explosion of coal dust, and methane accumulations.
He further argues that there were a number of
ignition sources in the area that could ignite the coal dust or
methane.
The Secretary maintains that the violation was the result of
C.W. Mining's unwarrantable failure to comply with the ventilation plan because the violation was "extremely obvious." (S. Br.
8). He argues that C.W. Mining should have been aware that the
area was not adequately ventilated because there was only a
small, partially blocked hole at ~he back of the split . He contends that Jackson should have addressed the problem before the
fender was cut. The Secretary further maintains that Jackson
arrived at the face well before the inspector and that his
failure to take corrective action, either before or after the
inspector arrived at the face, constituted aggravated conduct ~
Finally, the fact that Jackson asked the inspector to delay
shutting down the continuous miner until the shuttle car was

1491

loaded demonstrates c.w. Mining's lack of concern about the
inadequate ventilation.
The Secretary argues that Cyril Jackson knowingly authorized, ordered, or carried out the violation. The Secretary
contends that Jackson knew that his crew was mining the right
fender of the split, that there was only a small hole at the back
of the split, and that it was his responsibility to assure adequate ventilation. Despite this knowledge, the Secretary contends that Jackson did nothing to correct the situation and, in
addition, asked the inspector if he could continue mining to
finish loading the shuttle car.
A.

c.w. Mining

C.W. Mining contends that the Secretary did not establish
that the violation was S&S.
It states that the condition existed
for a few minutes at the most, and that Mr. Jackson stopped the
continuous miner once he observed the dusty conditions. _ C. W.
Mining states that the inadequate ventilation would not have
continued once the shuttle car was loaded. Thus, it maintains
that the Secretary failed to establish that there was a reasonable likelihood that the dusty conditions would have caused an
injury or illness.

c.w. Mining also contends that, because the inadequate ventilation observed by the inspector had existed only for a few
minutes and Jackson started taking remedial steps as soon as he
became aware of it, the violation was not the result of its unwarrantable failure and Mr. Jackson did not knowingly authorize,
order, or carry out the violation.
c.w. Mining also argues that
it has a good history of compliance with its ventilation plan and
it regularly instructs its continuous miner operators to stop
mining if the ventilation is not sufficient.
III.

DISCUSSION WITH FURTHER FINDINGS
AND

CONCLUSIONS OF LAW
A.

Significant and Substantial

The Commission has established a four-par·t S&S test, as
follows:
In order to establish that a violation
of a mandatory safety standard is significant
and substantial ... , the Secretary of Labor
must prove:
(1) the underlying violation of
a mandatory safety standard; (2) a discrete
hazard -- that is, a measure of danger to
safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard

1492

contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). ·An evaluation
of the reasonable likelihood of an injury should be made assuming
continued normal mining operations. U.S. Steel Mining co., 7
FMSHRC 1125, 1130 {August 1985).
I find that the Secretary established that the violation was
S&S.
C.W. Mining does not seriously dispute that the Secretary
established the first two elements of the Mathies test.
It contends, however, that the third and fourth elements were not met .
I agree with C.W. Mining that the continuous miner had been cutting into the fender for only a minute or so when Jackson arrived
at the.face. 4 Assuming continued normal mining operations, however, the c~ndition would likely have continued for a longer
time.
The hazards of coal dust are well known.
Although MSHA did
not take a dust survey at the time, I believe that the evidence
establishes that a significant amount of coal dust was boiling
back over the continuous miner and was not being carried away by
the ventilation system.
(Tr. 73).
Inspector Marietti could
detect no perceptible movement of air in the area.
The miners in the area were not wearing respirators and were
exposed to the coal dust.
(Tr. 76). Pneumoconiosis is a progressive disease that can afflict coal miners who are exposed to
dust over a period of years. Apparently, no miner who has worked
at the Bear Canyon No. 1 Mine has ever filed a claim for black
lung benefits.
(Tr. 185). That fact, however, does not lessen
the hazard.
Inspector Marietti testified that he discovered a permissibility violation on a shuttle car in the section and an accumulation of coal on one part of continuous miner.
(Tr. 103-104).
This evidence is not contested by C.W. Mining.
(Tr. 163-164,
182). The permissibility violation was a potential ignition
source for the dust and the accumulation could help spread a
4

Mr. Thompson testified that he had been mining in the
fender for 15 or 20 minutes and that· he had cut about 20 feet.
(Tr. 128-129). I have not relied upon this testimony because it
is contrary to the testimony of the inspector, Defa, and Jackson.
(Tr. 65, 77, 159, 225, 231). In addition, the metal surfaces of
the continuous miner were clean of coal dust.
(Tr. 182-183; Ex.
R-1). Given the amount of dust that was being produced, the
machine would have been dusty if Thompson had been mining for 15
or 20 minutes.

1493

fire.
Although the coal seam does not contain large amounts of
rock, the bits of the continuous miner could, never-theless,
strike a rock and create a spark causing an ignition of the coal
dust.
(Tr. 29, 74, 103). Finally, although excessive amounts of
methane are not emitted at the mine, methane could pe released at
the face and mix with the coal dust thereby increasing the likelihood of an ignition.
(Tr. 75). In order for an ignition to
occur, there must be a confluence of factors. Texasgulf, Inc.,
10 FMSHRC 498, 501 (April 1988). In the present case, the
shuttle car with impermissible gaps would have traveled to the
dusty area, assuming continued normal mining operations.
Taking into consideration the health risk and ignition hazard posed by the violation, I find that there was a reasonable
likelihood that the hazard contributed to would have resulted in
an injury. 5 I also find that the Secretary established the
fourth €lement of the Mathies S&S test. If there was an ignition
in the area, miners could be burned or killed.
In addition,
black lung disease is a serious progressive disease.
B.

Unwarrantable Failure

In Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 1987),
the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference," or "serious
lack of reasonable care. 11 Id. at 2003-04; Rochester & Pittsburgh
Coal Corp., 13 FMSHRC 189, 193-194 (February 1991).
I find that the Secretary did not establish that the violation was caused by c.w. Mining's unwarrantable failure to comply
with the ventilation plan. The Secretary is asking that I conclude that C.W. Mining engaged in aggravated conduct based on
inferences drawn from events and conversations that occurred at
the face in a very short period of time. As discussed below, I
believe during this period there was a breakdown in communications and that this breakdown is the primary source of the conflicting testimony.
I credit the testimony of Defa and Jackson that Jackson arrived at the face only moments before the inspector.
(Tr. 17117 2, 220). Jackson walked from Room 4 to the face via · the same
route as the inspector. Inspector Marietti also proceeded to the
face with only a momentary stop at a shuttle car. Jackson could
not have been at face very long before the inspector arrived.

In addition, I find that the violation was S&S considering
the ignition and fire hazard alone.

149 4

I also credit the testimony ox Defa and Jackson that Jackson
attempted to signal Thompson to stop the continuous miner.
(Tr.
172, 178-179, 220-221) . . Jackson is an experienced miner and is
familiar with the MSHA inspection process. It is hard to believe
that he would stand there, knowing that Inspector Ma.r ietti was on
the way, and do nothing about the violation that everyone said
was obvious. Apparently, Thompson did not see his signal and
kept mining.
(Tr. 126). The dark, noisy environment of underground coal mini.ng makes communication difficult.
I believe that Inspector Marietti perceived that Jackson was
not doing anything to correct the violation because the continuous miner operator was still mining when he arrived.
(Tr. 59,
76-77).
The inspector did not see Jackson's signal.
Inspector
Marietti testified that Jackson asked him if the operator could
finish filling the shuttle car before he shut down.
(Tr. 76,
101) . •Jackson denied making this statement and testified that
the inspector told him that if he had stopped the continuous
miner before the shuttle car was loaded, then a citation would
have been issued, rather than an order.
(Tr. 222). A shuttle
car is usually filled in about a minute.
(Tr. 99, 126, 146,
159). Accordingly, this discrepancy is not particularly significant.6 I cannot assume that Jackson was disregarding the
hazard presented by the violation based on the inspector's
testimony about this conversation.
The Secretary also contends that Jackson should have known,
before Thompson started mining, that the ventilation would not be
sufficient because there was only a small hole at the back of the
pillar split and it was partially blocked. Jackson examined the
split about 30 minutes before Thompson started mining the fender,
but he did not measure the air flow.
(Tr. 216, 247; Ex. G-9).
Nevertheless, I believe that Jackson's failure to adjust the
ventilation earlier in the shift constitutes, at most, ordinary
negligence, not aggravated conduct. First, the configuration of
the pillar split with the hole in the back was somewhat unusual.
(Tr. 90, 243}. There is no indication that a line curtain is
usually needed when making the first cut into a fender.
(Tr. 3536, 156).
Second, it is not clear when the gob caved behind the
split and partially blocked the hole.
It is common for the roof
in the gob to cave during retreat mining and the resulting bump
can affect ventilation.
(Tr. 91, 174-175, 223, 229).
Defa and
Jackson testified that they heard the roof cave a few minutes
before they were at the face.
(Tr. 174, 176, 218, 223-224, 238).
6

The shuttle car that Thompson was loading was the first
shuttle car to be filled on that shift.
(Tr. 172, 224).
As a
consequence, it is unlikely that Jackson was motivated by production concerns. For the reasons set forth in footnote 4, I have
not given any weight to Thompson's testimony that he had loaded
eight to ten shuttle cars.
(Tr. 136-137).

1495

They thought the hole was clear before that time. Id. Thompson,
on the other hand, testified that the hole -was partially blocked
when he arrived at the spli t .
(Tr. 122, 126, 132-133). Finally,
there were curtains in the area to direct air into the split.
(Tr. 55-58, 92-94; Exs. G-4, G-6). Apparently, C.W. Mining was
having difficulty keeping the curtains tight, in part because of
the bumps.
(Tr. 80, 94, 174, 198, 223). Inspector Marietti testified that if all of the curtains that were in place had been
tight, the ventilation at the face may have been adequate.
(Tr. 98) .

c.

Liability of Cyril Jackson under Section llO(c)

Section llO(c) of the Mine Act provides that, whenever a
corporate operator violates a mandatory health or safety standard, any agent of such corporate operator who "knowingly authoriz~d, ordered, or carried out such violation" shall be subject to a c~vil penalty. 30 u.s .c. § 820(c). The Commission has
held that a "violation under section llO(c) involves aggravated
conduct, not ordinary negligence." BethEnergy Mines, Inc., 14
FMSHRC 1232, 1245 (August 1992).
C.W. Mining is a corporate operator and Mr. Jackson was an
agent of the corporation. In addition, as discussed above, the
corporate operator violated the mine's ventilation plan and, as a
consequence violated 30 C.F.R. § 75.370(a) (1).
I find, however,
that Jackson did not knowingly authorize, order, or carry out the
violation.
I reach this conclusion for the same reasons that I
concluded that the violation was not unwarrantable, as discussed
above.
I find that Jackson was somewhat negligent by not checkking the air flow before Thompson started cutting.
I conclude,
however, that he did not knowingly violate the ventilation plan.
Based on the facts available to him, Jackson did not have "reason
to know that a violative condition or conduct would occur " and he
did not fail "to take appropriate preventive steps." Roy Glenn,
6 FMSHRC 1583, 1586 (July 1984). He believed that there was
sufficient air in the split . He also took steps to stop production once he saw that the ventilation was inadequate.
Inspector
Marietti assumed that because he did not see Jackson try to stop
the continuous miner, Jackson had not, in fact, done so.
(Tr.
108, 222, 257).
The Secretary bases its llO(c) allegation, in large measure,
on the events that took place at the face in the first few moments after the inspector arrived.
(Tr. 221).
I have determined
that there was a miscommunication between Inspector Marietti and
Jackson at that time. As discussed above, I find that Jackson
tried to signal Thompson to stop mining, but the inspector did
not see him do so. When Jackson stood there a few moments without taking any action, Inspector Marietti concluded that Jackson
was indifferent to the violation and issued the withdrawal order.
(Tr. 60-61, 257-258).

1496

IV.

CIVIL PENALTY ASSESSMENT

Section llO(i) of the Mine Act, 30 u.s.c. § 820(i), sets out
six criteria to be considered in determining the appropriate civil penalty. Based on this criteria, I assess a penalty of $2,000
for the violation.
I find that c.w. Mining was issued 148 citations and orders in the 24 months preceding the inspection in
this case.
(Ex. G-1).
I also find that c.w. Mining is a mediumsized operator that produced between 300,000 and 400,000 tons of
coal in 1992.
I find that the civil penalty assessed in this
decision would not affect c.w. Mining's ability to continue in
business. The violation was timely abated by c .w. Mining.
I
further find that the violation was very serious, and that C.W.
Mining's negligence was moderate. In assessing the penalty, I
gave special consideration to the violation's high level of
gravity.

V.

ORDER

In WEST 93-375, Order No. 3852378 is MODIFIED to a - section
104(a) citation by deleting the unwarrantable failure designation
and reducing the level of negligence to moderate. As modified,
the citation is AFFIRMED and c.w. Mining Company is ORDERED TO
PAY Secretary of Labor the sum of $2,000.00 within 40 days of the
date of this decision.
In WEST 94-399, Order No. 3852378 is VACATED against Cyril
Jackson and the civil penalty proceeding is DISMISSED.

I

i

Richard W. Manning
Administrative Law Judge

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Carl E. Kingston, Esq., 3212 south State street, P.O. Box 15809,
Salt Lake City, UT 84115 (Certified Mail)
RWM

1497

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 3 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-720-M
A . C. No. 42-02089-05505
Wiser Portable No. 1

WISER CONSTRUCTION LLC,
Respondent
DECISION APPROVING SETTLEMENT
Before :

Judge Hodgdon

This case is before me on a petition for assessment of civil
penalty under Section lOS(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C . § 815(d). The Secretary, by
counsel, has filed a motion to approve a settlement agreement.
A reduction in penalty from $4,300.00 to $2,150.00 is proposed.
Having considered the representations and documentation
submitted, I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of
the Act, 30 U. S.C. § 820(i).
Accordingly, the motion for approval of settlement is
GRANTED and it is ORDERED that Respondent pay a penalty of
$2,150.00 within 40 days of the date of this order. On receipt
of payment, this case is DISMISSED.

Vi:~~

Administrative Law Judge
(703) 756 - 4570

1498

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
Mr . Paul Ronald Lewis, Managing Member, Wiser Construction, LLC,
P.O . Box 106, Moapa, NV 89025
/lbk

1499

FEDERAL MINE SAFETY AND HEALTH RBVIBW COMMXSSXON
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10t~ FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

-AUG 3 1 t995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JAMES RIEKE,
Petitioner

. DISCRIMINATION PROCEEDING
Docket No. LAKE
NC-DC 94-10

v.

95-201-DM

Cleveland Mine
Mine ID 33-06994

AKZO SALT COMPANY, INC.,
Respondent
DECISION
Appearances:

Lisa A. Gray, Esq., Ruben R. Chapa, Esq., Office
of the Solicitor, U. S. Department of Labor,
Chicago, Illinois for Complainant;
William Michael Hanna, Esq., Squire, sanders and
Dempsey, Cleveland, Ohio for Respondent

Before:

Judge Melick

Pursuant to the interlocutory decision issued in this case
on August 7, 1995, the parties have stipulated to damages due the
complainant, James Rieke, of $2,542.04.

ORPER
In addition to the other remedies directed in the decision
dated August 7, 1995, Akzo Salt Company, Inc. is hereby directed
to pay within 30 days of the date of this decisio (1) a civil
penalty of $2,000 and (2) damages o $2,542.04 to ames Rieke.

Distribution:
Ruben Chapa, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604
William Michael Hanna, Esq., Squire, Sanders & Dempsey, 4900
Society Center, 127 Public Square, Cleveland, OH 44114

/jf

1 500

FEDERAL MINE SA!'BTY AND BEAL'l'H REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW Jl.l>GES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VJRGINIA 22041

AUG 3 1 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JAMES RIEKE,
Petitioner

v.

:

DISCRIMINATION PROCEEDING

:

Docket No. LAKE
NC-DC 94-10

95-201-DM

Cleveland Mine
Mine ID 33-06994

AKZO SALT COMPANY, INC.,
Respondent
DECISION AND ORDER DENYING MOTION FOR RELIEF

Before:

Judge Melick

In his complaint of discrimination on behalf of James Rieke,
filed July 17, 1995, the Secretary specifically requested
reinstatement of James Rieke to his former position as
"powderman/blaster". In his testimony at hearings on May 11,
1995, Mr. Rieke himself confirmed that he was seeking
reinstatement as "powderman". Finally, in his post hearing brief
the Secretary again demanded Rieke's reinstatement to his former
job as "powderman." In the interlocutory decision issued
August 7, 1995, in which the·· Secretary prevailed on the merits,
the Respondent was accordingly ordered to immediately reinstate
Mr. Rieke to his former job as "powderman/blaster."
On August 25, 1995, the Secretary moved pursuant to Rule
60(b} Federal Rules of civil Procedure, for relief from this
order stating that, while Respondent has, in fact, complied with
the order and has reinstated Rieke, Rieke apparently no longer
wishes to work in the position of "powderman/blaster". In the
proposed order submitted August 28, 1995, the Secretary seeks to
have Rieke now returned to the position of haul truck driver
the position he held at the time of hearings and at the time of
his requested reinstatement to the position of "powderman".
It is the position of Respondent that it has reinstated
Rieke as ordered and has already filled Rieke's former position
as haul truck driver and cannot now fairly, nor within the terms
of its collective bargaining agreement, displace that employee.
Under the circumstances it appe~rs that the order issued
August 7, 1995, which granted the precise remedy sought by
complainant, cannot now be modified without harming a third party

1501

innocent employee and violating tbe provisions of the collective
bargaining agreement. Within this framework and considering the
equities, I find that the secretary's Motion for Relief must be
denied.
ORDD

The Secretary's Motion for Relief From a
and Order is denied.

ortion of Decision

Distribution:
Ruben Chapa, Esq., Office of the Solicitor, U.S . Department of
Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail) ·
William Michael Hanna, Esq., Squire, Sanders & Dempsey, 4900
Society Center, 127 Public Square, Cleveland, OH 44114
(Certified Mail)
/jf

1502

ADMINISTRATIVE LAW JUDGE ORDERS

PBDBRAL JCIJIB SAPB'l'Y AJl1D HEALTH RBVJ:BW COJllllSSJ:Olt
1244 SPEER BOULEVARD #.280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
May 17, 1995

CONTEST PROCEEDINGS

ASARCO' INC. I
Contestant

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

v.

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

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

Sweetwater Mine
Mine I.D. 23-00458
DISCRIMINATION PROCEEDING

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

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

v.
ASARCO, INCORPORATED,
Respondent

ORDER DENYING, IN PART, ASARCO'S MOTION TO COMPEL
Asarco, Inc. filed a request for the production of documents
in these proceedings.
In response, the Secretary of Labor provided certain documents but refused to provide others on the
basis of the informant's privilege, the deliberative process
privilege, and the attorney-client privilege.
Subsequently,
Asarco filed a motion to compel production of three ~ypes of documents:
(1) statements of miners made to MSHA investigators; (2)
a special investigation report of the discrimination complaint
prepared by Ms. Judy Peters, an MSHA employee; and (3) a case
analysis prepared by Ms. Peters. The Secretary opposed the motion to compel. By order dated May 4, 1994, I ordered the Secretary to provide, for my in camera inspection, a copy of each
contested document.
There is no dispute that the requested
material is relevant to these proceedings.
For the reasons discussed below, Asarco's motion to compel is denied, in part, and
granted, in part.

1503

I.

Statements of Miners

During MSHA's investigation of Mr. Hopkins' discrimination
complaint, Ms. Judy Peters, an MSHA investigator, i~terviewed a
number of miners. During these interviews, she either taperecorded the interview or took written statements. The taped
interviews were typed in question and answer format. These interview transcripts and written statements (collectively referred
to as "statements"} were forwarded to me for my review. After
reviewing each of the statements, I conclude that all but one are
protected by the informant's privilege.
The Commission has stressed the importance of the informant's privilege under the Mine Act. Bright Coal Co., 6 FMSHRC
2520 (November 1984) . The commission held that this privilege is
applicable to the furnishing of information to government off icials concerning violations of the Mine Act. 6 FMSHRC at 2524.
It is the name of the informant, not the contents of the statement, that is protected, unless disclosure of the contents would
tend to reveal the identity of an informant. Asarco, 12 FMSHRC
2548, 2554 (December 1990) ("Asarco I"), citing Roviaro v. United
States, 353 U.S. 53, 60 (1957). The Secretary bears the burden
of proving facts necessary to support the existence of the privilege. Asarco I, 12 FMSHRC at 2553.
Each of the statements at issue in this case contains the
name of the informant making the statement. In addition, given
the detail contained in the statement, I find that disclosure of
the contents of each statement would tend to reveal the identity
of the informant. Finally, each statement contains the names of
other miners, many of whom are also informants. Accordingly, I
conclude that each statement is protected by the informant's
privilege. Redacting out names and identifying sentences or
paragraphs is not feasible because of the detailed nature of
the statements. It would not be possible for the Secretary to
provid-e Asarco with meaningful portions of the statements without revealing the identity of one or more informants.
Because the informant's privilege is a qualified privilege,
I must perform a balancing test to determine if Asarco's need for
the statements is greater than the Secretary's need to maintain
the privilege to protect the public interest. Bright, -6 FMSHRC
at 2526. · The burden is on Asarco to prove facts necessary to
show that disclosure of the statements is necessary to a fair
determination of the case.
Id.
Factors to be considered in conducting this balancing test include whether the Secretary is in
sole control of the requested material and whether Asarco has
other avenues available from which to obtain the substantial
equivalent of the requested information.
Id. In performing the
balancing test in this case, the issue is whether Asarco can get
substantially the same information by deposing those miners who

1504

have knowledge · of the events leading up to Mr. Hopkins' discharge. Asarco, 14 FMSHRC 1323, 1331 (AugUst 1992) ("Asarco II")
I conclude that Asarco could get substantially the same
information by interviewing or deposing miners at th~ Sweetwater
Mine who worked with Mr. Hopkins and with the 1311 High Scaling
Rig that is the subject of these proceedings. Those are the individuals with knowledge of the events that are important to
these cases and Asarco can get substantially the same information
by talking to those individuals.
Asarco maintains that it believes that it is "quite likely"
that some of the statements contain information that is favorable
to its position in these cases. Asarco states that such information is essential for a fair determination of the issues. In
Bright, the Commission held that "an informer is entitled to
anonymity, regardless of the substance of the information he furnishes." 6 FMSHRC at 2524. The "applicability of the informer's
privilege to the Mine Act does not rise or fall based on the substance of a person's communication with .government officials concerning a violation of the law." 6 FMSHRC at 2525. Accordingly,
Asarco's contention is unfounded.
I conclude, however, that Asarco is entitled to a copy of
the statement made by Mr. Hopkins. This proceeding is being
brought by the Secretary on Mr. Hopkins' behalf. There can be no
doubt in anyone's mind that Mr. Hopkins is an informant and that
his identity as an informant is known to Asarco because a discrimination complaint was filed on his behalf. The Secretary
would not file a discrimination proceeding without interviewing
the complainant. 1 Accordingly, I conclude that the informant's
privilege has been waived with respect to Mr. Hopkins.
Asarco will be entitled to the names of all the Secretary's
witnesses two days before the trial. 29 C.F.R. § 2700.62; Asarco
II, 14 FMSHRC at 1331. At or about that time, Asarco may be able
to obtain the statement of any miner who will be called as a witness in order to refresh that witness's recollection or to
My holding is consistent with the Cqmmission's decision
in Secretary on behalf of Gregory et. al. v. Thunder Basin Coal
Co., 15 FMSHRC 2228 (November 1993} . The commission hel~ that
the informant's privilege is not waived when an unfair labor
practice charge brought by the United Mine Workers Union names a
number of miners in the complaint. · 15 FMSHRC at 2235-36. The
inclusion of a particular miner in the complaint "is not tantamount to disclosure .of [the miner] as an informant." 15 FMSHRC
at 2236. The unfair labor practice action could have been
brought without obtaining information from the miner in question.
In the instant case, however, there can be no dispute that
Mr. Hopkins is an informer.

lsos

impeach his testimony. Asarco II, 14 FMSHRC at 1331. Asarco's
right to the statements of miner witnesses at the time of trial
is a separate and procedurally distinct issue from the discovery
issue presented here. Id. (citation omitted).
II.

Special Investigation Report Prepared by Ms .

P~ters

The special investigation report ("report") prepared by
Ms. Peters con$ists of two parts: a summary of the interviews
and statements Ms. Peters took of miners and a conclusion that
Asarco violated section 105(c} of the Mine Act when it terminated
Mr. Hopkins. The report recommends that a complaint be filed on
his behalf. The report, which is in the form of a memorandum,
was prepared by Ms. Peters and is directed to Raymond c. Austin,
MSHA District Manager for the South Central District, through
Jimmie L. Jones, Supervisory Mine Safety and Health Specialist.
I find that this document is protected from disclosure by the
informant's privilege and the deliberative process privilege.
Most of the report is a summary of the statements of miners
described in section I, above. This summary also includes the
summary of statements made to Ms. Peters by a few management employees. The definition of "miner" under the Mine Act includes
"any individual working in a ... mine." 30 U.S.C. § 802(g); 29
C.F.R. § 2700.2. Thus, the informant's privilege applies to
statements made to the government by both management and hourly
employees. For the reasons set forth in section I above, I believe that these summaries are protected by the informant's privilege.
In addition, for the reasons discussed above, Asarco's
need for the statements is not as great as the Secretary's need
to maintain the privilege to protect the public interest. Asarco
has access to all of these individuals and could simply depose or
interview them.
The remainder of the report is protected by the deliberative
process privilege. This privilege protects communications between subordinates and supervisors within the government that are
"antecedent to the adoption of an agency policy." Contests of
Respirable Dust Sample Alternation Citations, 14 FMSHRc· 987, 992
(June 1992), quoting Jordan v. Dept. of Justice, 591 F.2d 753
(D.C. Cir. 1978). The communications must be "related to the
process by which policies are formulated." Id. The conclusion
and recommendation section easily fits within the deliperative
process privilege. This section of the report contains the recommendation of Ms. Peters, a subordinate, to Mr. Austin, a supervisor, that the agency pursue this case. It is not the final
agency decision. 2
2

The portion of the report that summarizes the statements
of miners also summarizes interviews with Michael R. Roderman, an
MSHA inspector, and Michael P. Sheridan, an MSHA engineer.
I

1506

I also conclude that Asarco's need for the recommendation
section does not outweigh the Secretary's interest in keeping it
confidential. Ms. Peter's one page recommendation puts her gloss
on the interviews she conducted and states that the information
obtained during her investigation "indicates that a violation of
Section 105{c) occurred." It is simply her opinion and, since
this proceeding is de IlQYQ, it will carry no weight. The Secretary's interest in keeping its decision making process confidential far outweighs Asarco's need for this section of the report.
III.

Case Analysis

Counsel for the Secretary states that a case analysis prepared by Ms. Peter does not exist. The only case analysis she
prepared is the report discussed in section II, above. The Secretary provided for my in camera review, a two-page "case analysis" prepared by an analyst in MSHA's Arlington, Virginia, headquarters. As it does not contain any details, it appears that
it may be a transmittal memorandum for the report prepared by
Ms. Peters.
In any event, like the report, it is protected by
the deliberative process privilege. It is a memorandum prepared
by a subordinate to a supervisor that recommends that a discrimination complaint be filed against Asarco on behalf of
Mr. Hopkins. Tne Secretary's interest in keeping its decisionmaking process confidential outweighs Asarco's need for this
document.
ORDER

Accordingly, Asarco's motion to compel is DENIED, except
with respect to the transcript of the taped interview of
Mr. Hopkins taken on September 19, 1994. The Secretary is
ORDERED to provide counsel for Asarco with a copy of this transcript within ten days of the date of this order. The Secretary
should redact the names of other informants that are contained in
the transcript and, to the extent necessary, those portions of
the transcript that would tend to reveal the · ent'
of an
informant.

find that these summaries are protected by this privilege because
they reflect the deliberative process and are not purely factual
in nature.
I believe that report must be viewed as a whole and
that the summary of Ms. Peters' interviews of MSHA officials is
part of the decision making process rather than merely a factual
predicate for the decision to bring these cases. See, Respirable
Dust Cases, 14 FMSHRC at 992-93.

1507

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

RWM

1508

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

August 8, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEED I NG
Docket No . WEST 94-637-M
A. C. No. 35-03123-05514

I

Cedar Creek Quarry
CEDAR CREEK QUARRIES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINI STRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . WEST 95-306-M
A. C . No. 35-03123-05516 A

I

v.
Cedar Creek Quarry
ROBERT G . WIENERT, Employed by,
CEDAR CREEK QUARRIES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEED I NG
Docket No. WEST 95-307-M
A. C. No. 35-03123-055 1 7 A

I

Cedar Creek Quarry
DENNIS McCASLIN, Employed by,
CEDAR CREEK QUARRIES, INC . ,
Respondent
ORPER DENYING MOTIQNS TO PISMISS
ORPER OF CQNSOLIPATION
ORDER OF CQNTINUANCE

Before:

Judge Hodgdon

These cases a r e before me on petitions for civil penalty
pursuan t to Sections 105(d) and l l O(c) of the Federal Mine Safety
and Health Act of 1 977, 30 U.S.C. §§ 815(d) and 820(c) .
Respondents Robert G. Wienert and Dennis Mccas lin have moved to

1509

dismiss the petitions against them. The Secretary opposes the
motions. In addition, the Secretary has moved to consolidate
these cases for hearing and to continue the August 8, 1995,
hearing date. The Respondents oppose a continuance. For the
reasons set forth below, the motions to dismiss are denied, the
cases are consolidated for hearing and the hearing is continued .
Motions to Dismiss

The Secretary has filed petitions seeking civil penalties
under Section llO(c) of the Act against Wienert, President of
Cedar Creek Quarries, Inc., and Mccaslin, a foreman employed by
Cedar Creek Quarries, Inc., for knowingly authorizing, ordering
or carrying out, as officers or agents of Cedar Creek Quarries,
Inc. several violations of the Secretary's mandatory health and
safety standards. The violations are all alleged to have
occurred on December 7, 1993 . The Respondents were officially
notified that the Secretary was assessing such penalties on
March 17, 1995 . After Respondents stated that the wished to
contest the penalties, the instant petitions were filed on
May 10, 1995. The Respondents argue that the approximately 15
month time period between the violations and notification of
liability constitutes an unreasonable delay which requires that
the petitions be dismissed. 1
The Respondents assert that there are four reasons for
dismissing the cases. The first is the "concept of laches"
because the delay resulted in prejudice to the Respondents'
ability to defend themselves. The Second is that Section llO(c)
violates the equal protection and due process requirements of the
Fifth Amendment by making officers, directors or agents of

1

The Respondents also allege a 31 month delay from the time
the company was cited for the same type of violations on July 22,
1992. While the July 22, 1992, violations were mentioned in the
orders given to the company on December 7, 1993, and may have
some bearing on the Respondents' liability under Section llO(c)
for the December 7 violations, the Secretary is not seeking civil
penalties against the Respondents under Section llO(c) for the
July 22 violations. Consequently, the only pertinent delay for
consideration in connection with the motion to dismiss is the 15
month delay.

1510

corporate operators liable for knowing violations of the Act or
regulations, but not agents of noncorporate operators. Third,
Respondents maintain that giving individuals "less notice and
opportunity for administrative resolution" of violations than
operators who are immediately given a citation or order also
violates the equal protection and due process guarantees of the
Fifth Amendment. Finally, Respondents contend that Section
56.12001 of the Regulations, 30 C.F.R. § 56.12001 1 is so vague as
to be fundamentally unfair. None of these arguments is
persuasive.
The "Doctrine of laches" is an equitable concept which holds
that "neglect to assert a right or claim which, taken together
with lapse of time and other circumstances causing prejudice to
adverse party, operates as bar in court of equity. 11 Black's Law
Dictionary 875 (6th ed. 1990) . Since this is not a court of
equity, the Respondents advance that a similar concept should
apply in this case.
In their view, Judge Melick's decision in
Island Creek Coal Co., 15 FMSHRC 735 (April 1993), is precedent
for such a theory.
This argument, however, fai l s for two reasons. First, "[a)n
unreviewed decision of a Judge is not a precedent binding upon
the Commission." Commission Rule 72, 29 C.F.R . § 2700.72.
Secondly,
Judge Melick's decis i on was based solely on the
failure of the Secretary to file a petition for assessment of
penalty within 45 days of receipt of a timely contest of a
proposed penalty assessment as required by Commission Rule 27(a),
29 C.F . R. § 2700.27(a) [now Rule 28, 29 C.F.R. § 2700.28).
Thus,
he held that the Secretary had failed to file a timely request
for an extension of time to file a petition, Island Creek at 737;
that the Secretary had failed to show "adequate cause" for the
late filing, id. at 738; and that the Respondents had been
actually prejudiced by this late filing, id. at 739.
In the instant cases, there has been no violation .of a
statutory deadline. Judge Melick's discussion of prejudice
suffered by the respondents as a ~esult of the time lag between
the violations and their notification that they were being
assessed a penalty under Section llO(c) was to demonstrate that
the respondents had been prejudiced as a result of the
Secretary's untimely filing under the rule.
It did not establish
that a delay in bringing a Section llO(c) case is itself a ground
for dismissing such petitions.

1511

Furthermore, in these cases the Respondents have not shown
that they have suffered actual prejudice. The alleged inability
to locate the electricians who installed and dismantled the
electrical equipment in question does not mean that there is no
way to defend against the orders. As the Secretary has pointed
out, there are other means of defense, such as finding equipment
with the same specifications, using testimony from the equipment
manufacturer or using wiring diagrams and drawings furnished by
the manufacturer.
Next, Respondents have not been denied equal protection or
due process under the Fifth Amendment. At least two federal
circuits, as well as the Commission, have held that Section
llO(c) is not a denial of equal protection . U. S. v. Jones,
735 F . 2d 785 (4th Cir. 1984), cert . denied, 469 U.S. 918 (1984);
Richardson v . Sec . of Labor, 689 F.2d 632 (6th Cir. 1982 ) , cert.
denied, 461 U.S. 928 (1983).
Nor does the fact that the orders were immediatel y served on
the mine operator but the Respondents were not notified of their
liability until 15 months later violate due process or equal
protection.
Interestingly, the orders in this case were served
on Mr. Mccaslin, so he did have notice of the violations even if
he did not know at the time that he might be considered
personally liable. Similarly, Mr. Wienert, as president of the
company, must have become aware of the orders shortly after their
issue.
In addition, on April 6, 1994, and shortly thereafter,
both respondents were interviewed by the special investigator and
should have been aware at that time of their potential liability .
Finally, the regulation is not void for vagueness. Section
56.12001, 30 C.F.R. § 56.12001, provides that 11 [c]ircuits shall
be protected against excessive overload by fuses or circuit
breakers of the correct type and capacity." The fact that
"correct type and capacity" is not defined does not mean that the
regulation is vague since it is clear from the reguiation that
fuses and circuit breakers of the correct type and capacity are
those which protect against excessive overload.
Furthermore, even if this were not apparent, the Commission
has held that broadly worded regulations must be evaluated "in
light of what a •reasonably prudent person, familiar with the

1512

mining industry and the protective purpose of the standard, would
have provided in order to meet the protection intended by the
standard.'" Ideal Cement Co., 12 FMSHRC 2409, 2415 (November
1990) {citations omitted). Therefore, at the very least, this
would be a matter of proof at the hearing.
Having considered the contentions of the parties as set
forth in their briefs, the Respondents' motions to dismiss are
DENIED. That being the case, Docket Nos. WEST 95-306-M and
WEST 95-307-M are CONSOLIDATED for hearing with Docket No.
WEST 94-637-M.
Motion for Continuance

Hearing in Docket No. WEST 94-637-M is presently scheduled
for August 8, 1995, in Newport, Oregon. The Secretary has
requested that the hearing be continued because his two main
witnesses have medical problems which would prevent them from
being present to testify on August 8. Citing the passage of time
set out in the motions to dismiss, the Respondents oppose the
continuance.
While I am sensitive to the Respondents' concerns, the
delays in these cases have not been inordinate, or as indicated
above, of a nature to justify the extreme remedy of dismissal.
In addition, the request for continuance by the Secretary is due
to circumstances beyond his and his witnesses control. Nor is
the request for a three month continuance excessive in view of
the fact that one of the witnesses has just had open heart
surgery. Therefore, I will grant the continuance.
Accordingly, the motion for continuance is GRANTED. The
hearing in the above-captioned cases is CONTINUED until
November 14, 1995, at 9:00 AM, in Newport, Oregon. A specific
hearing site will be designated in a subsequent order.
In preparation for the hearing, the parties are directed to
complete the following on or before November 3, 1995:
(1) attempt to stipulate as to all relevant matters that are not
in substantial dispute; (2) exchange written statements of the
issues as they see them; (3) exchange lists of exhibits and, at
the request of a party, produce exhibits for inspection and
copying; (4) stipulate as to those exhibits which may be admitted

. 1513

in evidence without objection, and as tQ others indicate whether
the exhibit is accepted as authentic; and (5) except for the
Secretary's miner witnesses, exchange witness lists with a
summary of the testimony expected from each witness (counsel for
the Secretary shall furnish the names and expected testimony of
miner witnesses on November 10).
The parties are further ORDERED to file with the judge, so
that it is received on or before November 10, 1995 , a preliminary
statement setting forth:
(1) the parties ' statement of the
issues; (b) lists of exhibits and witnesses with a summary of the
expected testimony for each witness; and (c) any stipulations.
The parties should mark their exhibits, in the order that
they expect to offer them, before the hearing. The Secretary's
exhibits should be marked 11 Gov't. Ex . 1" et seq. and the
respondents' exhibits should be marked "Resp. Ex. A 11 et seq. If
both parties wish to offer the same exhibit, it may be marked as
a joint exhibit. Exhibits consisting of more than one page
should have the pages numbered.

{~~

Administrative Law Judge
(703) 756-4570

Distribution:
Matthew L . Vadnal, Esq . , Office of the Solicitor, U.S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle , WA 98101
(Certified Mail)
Kurt Carstens, E$q., P . O. Box 1730, Newport, OR
Mail)

97365 (Certified

/lsb

1514
•u.s. GOVERNMENT PRINTING OFFICE:t99S-387-720/43377