SEPTEMBER 1996

COM'.MISSIQN DECISIONS AND ORPERS
09-09-96 Consolidation Coal Company
09-12-96 Ambrosia Coal & Construction
09-16-96 New Warwick Mining Company
09-20-96 P . H . Blattner & Sons, Inc.
09-24-96 Kinross DeLamar Mining Company
09-24-96 Green Coal Company, Inc.
09-30-96 Cannelton Industries, Inc.

WEVA 94-19
PENN 93-233
PENN 93-445
WEST 93-123-M
WEST 96-318-M
KENT 96-349
WEVA 94-381

Pg.
Pg.
Pg.
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Pg.

1541
1552
1568
1580
1590
1594
1597

CENT 95-29-M
WEST 95-258
WEST 94-719-M
KENT 93-646
PENN 93-15
WEST 95-537-M
CENT 96-7-D
PENN 93-233
LAKE 96-103-M

Pg.
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Pg .
Pg .
Pg.
Pg.
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1603
1628
1641
1647
1650
1653
1658
1672
1674

WEST 95-417-D
SE
96-112-R

Pg. 1678
Pg. 1687

ADMINISTRATIVE LAW JUDGE DECISIONS
09-05-96 REB Enterprises Inc.
09-05-96 Energy West Mining Company
09-06-96 Wiser Construction
09-11-96 Manalapan Mining Company
09-12-96 L & J Energy Company, Inc.
09-12-96 Nevada Cement Company
09-20-96 Harold Holz v . Falkirk Mining Co.
09-20-96 Ambrosia . coal & Construction
09-26-96 Raymond Ernst empl. by Lyon Sand & Gravel
09-26-96 Sec . Labor on behalf of Marty Boden
v. Lion Coal Company
09-27-96 Jim Walter Resources, Inc.
APMINISTBATI\TE LAW JQDGE ORPERS
06-06-96 R0ger Christensen, empl. by Georgia Pacific WEST 96-98-M
08-23-96 R.J. Taggart Construction Co.
WEST 96-245-M
08-26-96 Manalapan Mining Company, Inc.
KENT 96-252
09-04-96 Newmont Gold Company
WEST 95-434-M
WEST 95-434-M
09-09-96 Newmont Gold Company
09-13-96 Newmont Gold Company
WEST 95-434-M
WEST 95-434-M
09-16-96 Newmont Gold Company
09-18-96 Newmont Gold Company
WEST 95-434-M
09-17-96 National Quarries
WEST 96-204-M

i

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1693
1697
1699
1703
1709
1717
1726
1729
1734

SEPTEMBER

1996

Review was granted in the following cases <luring the month of September:
Lion Mining Company v. Secretary of Labor, MSHA, Docket No. PENN 94-71-R.
(Judge Hodgdon, July 26, 1996)

Review was denied in the following cases during the month of September;
Stillwater Mining Company v. Secretary of Labor, MSHA, Docket Nos.
WEST 95-539-RM, etc.
(Judge Amchan, July 31, 1996)
Secretary of Labor, MSHA v. Vecellio & Grogan, Inc., Docket No. SE 96-9-M.
(Chief Judge Merlin, August 1, 1996)
Secretary of Labor, MSHA v. Primrose Coal Company, Docket Nos. PENN 96-125,
etc.
(Judge Melick, August 14, 1996)

ii

COMMISSION DECISIONS AND ORDERS

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

September 9, 1996

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

v.

Docket No. WEV A 94-19

CONSOLIDATION COAL COMPANY

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is an order issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") alleging that
Consolidation Coal Company ("Consol") violated 30 C.F.R. § 75.340, which sets forth fire
protection requirements applicable to underground water pumps.2 Administrative Law Judge

1

Commissioner Holen participated in the consideration of this matter, but her term
expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2

Section 75.340 provides, as pertinent:
(a) Underground ... water pumps shall be located in
noncombustible structures or areas or equipped with a fire
suppression system . . . . This equipment also shall be-( 1) Ventilated by intake air that is coursed into a return air
course or to the surface and that is not used to ventilate working
places; ...
(b) This section does not apply to--

1541

William Fauver found that Consol violated section 75.340(a), that neither of the exemptions
contained in sections 75.340(b)(4) and (6) applied, that the violation resulted from unwarrantable
failure, and that the violation was "serious." 17 FMSHRC 231, 234, 235 (February 1995) (ALJ).
The Commission granted Consol's petition for discretionary review. For the reasons that follow,
we affirm the judge.

I.
Factual and Procedtiral Back~round
On April 7, 1993, Inspector Richard McDorman ~ssued an order under section 104(d)(2)
of the Act, 30 U.S.C. § 814(d)(2), charging a violation of section 75.340(a) at Consol's
Arkwright No. 1 Mine, an underground coal mine located in West Virginia. 17 FMSHRC at
231; Gov't Exs. 1, 16. McDorman, accompanied by Mike Jackson of Consol's safety
department, inspected the No. 68 water pump, an electrically-powered ThroMor pump, located in
a crosscut in an intake escapeway on the 2 South longwall development section. 17 FMSHRC at
231, 233; Tr. 26, 72-73.
The pump's purpose was to remove water from a swag (low point) in an abandoned
section of the mine adjacent to the 2 South section. 17 FMSHRC at 232; Tr. 74. After one to
one-and-a-half weeks,, the water was removed from the swag. Tr. 80-81. Although Consol had
made preparations to move the pump inby to the next swag as the section advanced, the absence
of water on the section made the move unnecessary. Tr. 84.
The pump had 7'h horsepower, and was 14 to 16 inches high, 18 to 20 inches wide, and 6
feet Jong. 17 FMSHRC at 232; Tr. 73. 1t weighed 300 to 350 pounds, and was located about 20
crosscuts from the working face and about 1800 feet from the loading point. Id.
The water pump was not located in a noncombustible enclosure or equipped with a fire
suppression system. 17 FMSHRC at 231. The air ventilating the water pump was not coursed
into the return air entry; rather it was used to ventilate the working section. Id. at 231-32. For
these conditions, McDorman issued the order charging the violation. Gov't Ex. 1. He
designated the violation not significant and substantial. Id. The Secretary proposed a civil
penalty assessment of $2,400.

(4) Pumps located on or near the section and that are moved
as the working section advances or retreats; [and]
(6) Small portable pumps.

1542

At trial, Consol did not dispute that its pump failed to comply with the requirements of
section 75.340(a). C. Posthearing Br. at 1-2. Rather, Consol argued to the judge that the pump
was exempt from the regulation under either sections 75.340(b)(4) or (6). Id
The judge concluded that Consol violated the regulation, determining that neither the
(b)(4) nor the (b)(6) exemption applied. 17 FMSHRC at 233-35. The judge concluded that the
(b)(4) exemption was inapplicable because the pump was about 1800 feet outby the loading point
and did not advance with the working section.3 Id at 234. He ruled that the (b)(6) exemption
was inapplicable because the pump was not a "small portable pump." Id
The judge also concluded that the viofation resulted from Consol's unwarrantable failure.
Id at 234-35. He determined that it was not reasonable, without first inquiring into MSHA' s
enforcement position, for Consol to rely on the exemptions because the pump was "too heavy to
lift to be considered a ' small portable pump,' and because it was not moved as the working
section advanced or retreated." Id at 234. The judge also concluded that Consol ' s claims of
exemption under (b)(4) and (6) appeared to be after-the-fact litigation positions, and that Consol
had been operating without knowing that the safety standard governing pumps had changed five
months before the violation. Id. at 234-35.
Although the judge noted that Inspector McDorman designated the violation as not
significant and substantial, he nevertheless concluded that the violation was serious. Id at 234.
He found that in the event of a fire reaching the pump's fuel tank, the resulting smoke would
have contaminated the intake entry and escapeway with a reasonable likelihood of serious injury.
Id The judge assessed a civil penalty of $2,400. Id at 239.
II.

Disposition
With respect to the (b)(4) exemption, Consol argues the judge erred in finding that "the
pump was not moved as the working section advances or retreats." C. Br. at 2. It asserts that the
pump was removed from service, and that it was unnecessary to move the pump as the section
advanced because of the absence of water on the advancing section. Id Concerning the (b)(6)
exemption, Consol contends that the judge erred in finding that the pump was not a "small
portable pump." Id. It submits the judge' s reliance on the pump weight was material error. Id.
at 2, 5-7. With respect to the judge's unwarrantable failure finding, Consol argues that its
interpretation of the regulation was plausible and found support in the preamble and other MSHA
documents disseminated to the industry. Id. at 2,, 5. With respect to the judge's finding that the
violation was serious, Consol argues the pump did not have a fuel tank and was not in operating

3

The judge inadvertently characterized this as the (b)(6) exemption.

1543

condition at the time the order was issued, and thus there was no proof that a hazard existed. Id.
at 2, 8, 9.4
The Secretary argues that, with regard to the (b)(4) exemption, the pump was not located
"at or near" the working section, and that the pump was not "moved as the working section
advanc[ed]." S. Br. at 11-13. With regard to the (b)(6) exemption, the Secretary submits that the
pump was not portable, and that weight is a legitimate factor in the determination of portability.
Id. at 7-11. With respect to the judge's unwarrantable failure finding, the Secretary argues that it
was not reasonable for Consol to have believed its pump qualified for an exemption. Id. at 15
n.5, 16. He submits that Consol was aware that pumps such as the No. 68 ThroMor were
required to be in compliance with the cited standard. Id. at 15. With respect to the judge's
finding that the violation was serious, the Secretary emphasizes that the pump was in operating
condition, and that there was one gallon of oil in the pump's motor. Id. at 7 n.2.
A.

Consol's Motion to Strike
1.

Ventilation Meeting Materials

The Secretary's brief contained an attachment consisting of ventilation information
meeting sign-in sheets 'a,nd notices and internal MSHA memoranda setting forth schedules for
informational meetings on the Secretary's ventilation regulations. Consol seeks to strike these
materials on the ground that they were not before the judge and because Consol did not have the
opportunity of cross-examination with regard to the authenticity, veracity and relevance of the
materials. C. Mot. to Strike at 1-3.
The Commission has made clear that "the adjudication process is best served if the judge
is first given the opportunity to admit and examine all the evidence before making his decision."
Climax Molybdenum Co., 1FMSHRC1499, 1500 (October 1979). As the Commission has

4

Consol also argues that the language of section 7 5 .340(b)(4) and ( 6) failed to give fair
warning of the Secretary's interpretation of the regulation, and that Consol therefore should not
be held to have violated the regulation or engaged in unwarrantable conduct. C. Br. at 4, 5-6,
7-8. However, Consol did not raise this argument in its PDR and the Commission did not direct
sua sponte review of the issue. Under section l 13(d)(2)(A)(iii) of the Mine Act, 30 U.S.C.
§ 823 (d)(2)(A)(iii), the Commission's review is limited to those questions raised by the PDR.
See also 29 C.F.R. § 2700.?0(f) (1995); Chaney Creek Coal Corp. v. FMSHRC, 866 F.2d 1424,
1429 & n.7 (D.C. Cir. 1989). Accordingly, we do not reach the notice argument. Furthermore,
Consol did not raise this argument before the judge, another prerequisite for review under section
113(d)(2)(A)(iii) of the Mine Act. The Commission has declined to address arguments not
presented to the judge. E.g. , Beech Fork Processing, Inc., 14 FMSHRC 1316, 1316- 17 (August
1992).

1544

noted, "it is the obligation of parties to prove their case before the judge, not on review by
reference to detailed material not presented to the judge and not subjeet to the rigors of crossexamination." Union Oil Co. of Cal., 11FMSHRC289, 301(March19~9) (emphasis in
original). This rule of procedure under the Mine Act accords with settled principles of law
limiting the record on review to that developed before the trier of fact. Id.; see also Fed. R. App.
P. IO(a); United States v. Sanga, 967 F.2d 1332, 1335-36 n.2 (9th Cir. 1992).
Because the materials were not part of the record before the judge, we grant Consol's
motion to strike them, and consequently do not rely on them or on references to them contained
in the Secretary's brief.
2.

Webster 's Third New International Dictionary (Unabridged) (1986)
("Webster 's Third" )

Consol also asks the Commission to strike the references in the Secretary's brief to the
definitions of "portable" and "mechanize" contained in Webster 's Third. In his brief to the
Commission and post-hearing brief to the judge, the Secretary relied on similar definitions in The
American Heritage Dictionary (New College ed. 1980) and Webster's New World Dictionary
(Second college edition, 1980). S. Br. at 1O; S. Posthearing Br. at 11-12. The Co~ssion has
relied on Webster 's Third in its decisions. See, e.g., Peabody Coal Co., 18 FMSHRC 686, 690
(May 1996); Ideal Cement Co., 12 FMSHRC 2409, 2410 n.2 (November 1990); Consolidation
Coal Co., 11 FMSHRC 1935, 1938 (October 1989). The Commission has never held that a party
is limited to citing only those authorities previously cited to the judge.
Accordingly, we deny Consol's motion to strike the Secretary's references to definitions
of "portable" and "mechanize" in Webster's Third.
B.

Violation of section 75.340(a)

As Consol concedes that its pump did not comply with the requirements of section
75.340(a), its challenge to the judge's determination that it violated section 75.340 centers on
whether the juqge correctly concluded that the pump was not exempted from the mandatory
standard under section 75.340(b)(4) and (b)(6).
The Commission has recognized that where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning. Utah Power & Light Co., 1l FMSHRC 1926,
1930 (October 1989), citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-43 (1984). We think it clear that Consol's cited pump is not covered by the
section 75.340(b)(4) and (6) exemptions and, accordingly, we resolve this case on the basis of the
plain language of the regulation.

1545

1.

The section 75.340CblC4) exemption

Under section 75.340(b)(4), section 75.340(a) "does not apply to .. .[p)umps located on·
or near the section and that are moved as the working section advances or retreats." 30 C.F .R. §
75.340(b)(4) (emphasis added). The judge concluded that this exemption did not apply to
Consol's pump because "[t]he pump was about 1800 feet outby the loading point and did not
advance with the working section." 17 FMSHRC at 234.
The parties agree that "pumps located on or near the section" refers to the "working
section." ~.Br. at 7-8; S. Br. at 11. The "working section" is the area "[f]rom the section
loading point, being the tail piece and back to the working faces." Tr. 29; 30 C.F.R. § 75.2.
Because the pump was about 1800 feet outby the loading point, we conclude that it was clearly
not "on" the working section. We also think that, at a distance of 1800 feet outby the loading
point, the pump was clearly not "near" the working section. Inspector McDorman testified that
"near" would be two to three crosscuts outby the loading point. Tr. 40. He also suggested that
"near" could possibly be four crosscuts outby the loading point, referring to 30 C.F.R. §
75.214(a), which requires supplementary roof support materials to be within four crosscuts of
each working section. Tr. 55. The pump was approximately 2000 feet or 20 crosscuts outby the
working face, and apprO((imately 18 crosscuts outby the loading point. 17 FMSHRC at 232; Tr.
26-27 (based on Inspectot McDorman's estimate of 100 feet from crosscut to crosscut). Even
when the pump was closest to the working section, at the time of its installation about two weeks
earlier, it was still more than "l,000 feet from the pump to the face" and "[a]pproximately 800
feet" from the pump to the section loading point. Tr. 43, 62-63. Accordingly, substantial
evidence supports the judge's conclusion that the pump was not located on or near the working
section. 5 17 FMSHRC at 234.
As to the (b)(4) prerequisite the pump be "moved as the working section advances or
retreats," the pump had been stationary throughout the entire two weeks subsequent to its
installation, while the section advanced approximately 1,000 feet during this same period. 17
FMSHRC at 234; Tr. 43 , 62-63. Inspector McDorman testified there was no indication the pump
was to move with the working section, because the entire purpose of the pump's presence was to
dewater the old works adjacent to the section. Tr. 61, 64. Mike Jackson of Consol's safety
department testified that the pump would have been left in the location in which the inspector

5

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. '30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We
are guided by the settled principle that, in reviewing the whole record, an appellate tribunal must
also consider anything in the record that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

1546

found it ..so long as it kept pumping water out of the adjacent area." Tr. 90. Based on this
evidence, Consol did not meet the plain requirement of (b)(4) that the pump be moved in order to
qualify for the exemption. Jackson testified that Consol was entitled to th~ (b)(4) exemption
because it intended to move the pump with the section as needed to pump out water, but since
there was no need to pump out the water as the face moved, the pump remained where it was
cited. Tr. 84-85. We agree with the judge that an intent to move the pump does not satisfy the
prerequisite for the (b)(4) exemption. 17 FMSHRC at 234.
Consol also argues that it had removed the pump from service for about one week prior to
the citation, and therefore was not required to move it as the working section advanced. C. Br. at
2. The judge found that the pump was energized and ready to operate. 17 FMSHRC at 232.
Inspector McDorman's testimony supports the judge's finding. Tr. 21 , 43, 47. To the extent
Consol's witness Jackson testified to the contrary, Tr. 79, and Consol' s electrical examination
reports indicated the pump was out of service, Gov't Ex. 4, the judge essentially made a
credibility determination. A judge's credibility findings should not be overturned lightly and are
entitled to great weight. In Re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1878 (November 1995). We therefore decline to disturb the judge's finding that
the pump had not been removed from service.
In sum, we conclude that the judge correctly determined that Consol did not fall within
the (b)(4) exemption.
2.

The section 75.340(b)(6) exemption

Under section 75.340(b)(6), section 75.340(a) "does not apply to ... [s]mall portable
pumps." We think the judge correctly concluded that, because of its 300 to 350 pounds of
weight, Consol's pump was not a small portable pump within the meaning of section (b)(6). See
17 FMSHRC at 234. The preamble to the final rule indicates the Secretary' s intention that such
pumps be "easily relocated without the aid of mechanized equipment; capable of being moved
frequently; and installed in such a manner to facilitate such movement." 57 Fed. Reg. 20,868,
20,889 (May 15, 1992). This language is similar to the language describing "small portable
pumps" in MSHA 's Program Policy Letter P91-V-12 (effective July 17, 1991) ("PPL"), which
was issued under section 75.340's predecessor standard, 30 C.F.R. 75.1105 (1992). Tr. 31-32;
Gov' t Ex. 2; C. Ex. 4. Under the PPL, "[p]ortable pumps are: small normally permissible or
submersible pumps; easily relocated without the aid of mechanized equipment; capable of being
moved frequently; and installed in such a manner to facilitate such movement." Gov't Ex. 2; C.
Ex. 4. These definitions are consonant with the normally understood meaning of "portable,"
which is defined as "capable of being ... easily or conveniently transported" and "light or
manageable enough to be readily moved." Webster 's Third at 1768.
Substantial record evidence supports the judge's conclusion that Consol's pump was not .
a small portable pump. Neither Consol nor the Secretary disputes the judge's finding concerning
the weight of the pump. Tr. 26, 74. Inspector McDonnan indicated it would take five or six

1547

people with ropes to pull the pump. Tr. 38. As to the preamble's declaration that an exempt
pump be ''easily relocated without the aid of mechanized equipment," McDorman testified that
the pump was usually moved by a scoop, which is a mechanized piece of equipment. Tr. 37-38.
Mike Jackson of Consol's safety department testified that if a scoop had been available, it would
have been used to load the pump up and move it. Tr. 81. Jackson also testified that lacking a
scoop, they would probably jack the pump up, put it on a four-wheel cart, move it down the
heading, and reset it. Id. McDorman further stated that two to three people could move the
pump on a small pulley cart with wheels. Tr. 59. Accordingly, McDorman testified that the
pump was not a small portable pump in light of the description in the preamble to the final rule.
Tr. 30, 31. Thus, the plain language of the exemption clearly makes it inapplicable to Consol's
pump.
We reject Consol's argument that weight is not a legitimate criterion for assessing the
applicability of the exemption. Weight is an essential element in considering portability and
comports with common usage, regulatory history and common sense.
C.

Unwarrantable failure

Unwarrantable failure constitutes aggravated conduct exceeding ordinary negligence.
Emery Mining Corp., 9·FMSHRC 1997, 2001 (December 1987). Unwarrantable failure is
characterized by such conduct as "reckless disregard," intentional misconduct," "indifference" or
a "serious lack ofreasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Corp., 13
FMSHRC 189, 193-94 (February 1991).
In Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February 1994), the Commission set
forth the following factors among those to be considered in making an unwarrantable failure
analysis: "the extensiveness of the violation, the length of time that the violative condition has
existed, the operator' s efforts to eliminate the violative condition, and whether an operator has
been placed on notice that greater efforts are necessary for compliance."
Substantial record evidence supports the judge's finding. As to the length oftime the
violative condition existed, the inspector testified that he designated the violation unwarrantable
failure because the pump had been in the same location for over two weeks. Tr. 42-44. Weekly
electrical examinations had been conducted on March 25 and Apr~l 2. Tr. 44-45. As to the
extensiveness of the violation, the pump did not have fireproof housing. Tr. 43. Consol did not
meet the fire suppression requirements in lieu of the housing. Id. The pump was not ventilated
properly, coursing the intake air into the return airyvay. Id. The pump was ready to be used. Tr.
21. The record does not indicate compliance with any of the other alternatives in section
75.340(a)(2) and (3). As to Consol's efforts to eliminate the violative condition, the record
indicates Consol made none.
The Commission has recognized that "if.an operator reasonably believes in good faith
that the cited conduct is the safest method of compliance with applicable regulations, even if it is

1548

in error, such conduct is not aggravated conduct constituting more than ordinary negligence."
Southern Ohio Coal Co., 13 FMSHRC 912, 919 (June 1991), citing Utah Power & Light Co., 12
FMSHRC 965, 972 (May 1990)). The operator's good faith belief must be reasonable under the
circumstances. Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615-16 (August 1994).
Consol argues that it reasonably relied upon an interpretation of the regulation that had
definite plausibility and found support in the preamble and other MSHA documents that were
disseminated to the industry. C. Br. at 2, 5. The (b)(4) and (b)(6) regulatory exemptions are
clearly contrary to Consol's proffered interpretations. Further, Consol does not cite the
Commission to specific language in the preamble or to other record evidence of the "other
MSHA documents that were disseminated to the industry." Moreover, Consol had placed similar
pumps located in other areas of the mine in fireproof enclosures. Tr. 90. Thus, we conclude that
Consol's belief in the plausibility of its interpretation was unreasonable under the circumstances.
Consol also argues that the judge erred in stating that it was not reasonable to assume
"without first inquiring into MSHA' s enforcement position, that the pump qualified for an
exemption." C. Br. at 2, 4, 5 (citing 17 FMSHRC at 234). Consol seems to suggest that the
judge's finding of unwarrantable failure was significantly predicated on its failure to inquire first
into MSHA' s enforcement position. In our view, the judge correctly concluded that it was not
reasonable for Consol to have believed that the pump qualified for an exemption and that under
such circumstances Consol should have inquired into MSHA's enforcement position.
D.

"Seriousness'' of the Violation

Noting that the inspector cited the violation as not "significant and substantial," the judge
concluded that the violation was serious. 17 FMSHRC at 234. He found that, in the event of a
fire reaching the pump's fuel tank, the resulting smoke would have contaminated the intake entry
and escapeway with a reasonable likelihood of serious injury. Id.
The gravity penalty criterion under section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), is
often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC
287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal
Co., 9 FMSHRC 673, 681 (April 1987). Although the judge did not specifically relate
seriousness to gravity, or separately discuss the gravity criterion, he did assess the penalty based
on "all of the criteria in section 1 lO(i)." 17 FMSHRC at 238. Accordingly, we infer that the
penalty was based in part on the judge's conclusion that the violation was serious.
'

Consol argues that because the pump was out of service, substantial evidence does not
support the judge's conclusion that the violation was serious. C. Br. at 8. As previously
discussed, substantial evidence supports the judge's finding that the pump was not out of service.
Consol also argues that the judge erred in finding that the pump had a fuel tank that posed a fire
and smoke hazard C. Br. at 2, 8 (citing 17 FMSHRC at 234). Although the pump did not have a
fuel tank, we think the judge's finding is harmless error. As the Secretary points out, the pump's

1549

motor did carry a gallon of flammable oil. S. Br. at 7 n.2; Tr. 83. In addition, the pump was not
permissible. Tr. 29. The focus of the seriousness of the violation is not necessarily on the
reasonable likelihood of serious injury, which is the focus of the S&S inquiry,. but rather on the
effect of the hazard if it occurs. Cf Quin/and Coals, Inc., 9 FMSHRC 1614, 1622 n.11
(September 1987) ("gravity" penalty criteria and special finding of S&S not identical although
frequently based on same or similar factual circumstances). We conclude that, in light of the
presence of combustible material, substantial evidence supports the judge's conclusion that the
violation was serious.

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

Marc Lincoln Marks, Commissioner

1550

Distribution:
Elizabeth S. Chamberlin, Esq.,
Consol, Inc.,
1800 Washington Road
Pittsburgh, PA 15241
Jerald S. Feingold, Esq.,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike
Skyline Towers 2
Falls Church, VA 22041

1551

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

September 12, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 93-233
V.

AMBROSIA COAL & CONSTRUCTION
COMPANY
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 94-15

v.

WAYNER. STEEN, Employed by
AMBROSIA COAL & CONSTRUCTION
COMPANY

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1

DECISION
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U .S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is whether Administrative
Law Judge William Fauver correctly determined that Ambrosia Coal & Construction Company

1

Commissioner Holen participated in the consideration of this matter, but her tenn
expired before issuance of this decision. Pursuant to section l 13(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.

1552

("Ambrosia") violated 30 C.F.R. § 77.404(a)2 when it operated a highlift with allegedly defective
brakes. that the violation was significant and substantial (''S&S")3 and caused by Ambrosia's
unwarrantable failure, 4 and that a civil penalty should be assessed against Ambrosia's employee,
Wayne Steen, under section 1IO(c) of the Mine Act 5 for his alleged knowing authorization of the
violation. 16 FMSHRC 2293 (November 1994) (ALJ). For the reasons that follow, we affirm
the judge's determinations on these issues, vacate the judge's penalty assessments against
Ambrosia and Steen, and remand for reassessment.

I.
Factual and Procedural Background
Ambrosia operates the Ambrosia Tipple, a surface coal mine near Edinburg,
Pennsylvania. On June 3, 1992, David Weakland, an inspector with the Department of Labor's
Mine Safety and Health Administration ("MSHA"), and Charles Thomas, an inspector-trainee,
inspected the mine. 16 FMSHRC at 2294. When they arrived, Inspector Weakland and Thomas
went to the scale house, where they met Steen, and asked, "[W]ho is in charge here, who is the

2

Section 77.404(a) provides:
Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or
equipment in unsafe operating condition shall be removed from
service immediately.

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)( 1), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a ... mine safety or health hazard .... "
4

The unwarrantable failure terminology is taken from section 104(d)( 1) of the Act,
which establishes more severe sanctions for any violation that is caused by "an unwarrantable
failure of [an] operator to comply with ... mandatory health or safety standards . . . ."
5

Section 110(c) provides in part:

.

Whenever a corporate operator violates a mandatory health or
safety standard . . . , any ... agent of such corporation who
knowingly authorized, ordered, or carried out such
violation ... shall be subject to the same civil penalties ... that
may be imposed upon a person under subsections (a) and (d).
30 U.S.C. § 820(c).

1553

foreman?" Id.; I-Tr. 27-28.6 Steen replied that he was the foreman and accompanied the
inspectors on their inspection. 16 FMSHRC at 2294.
After leaving the scale house, Thomas asked Inspector Weakland if he could inspect a
highlift that he had observed having difficulty stopping as the inspectors drove into the mine. Id.
Weakland agreed and directed Thomas to notify him ifthere were any problems. Id. Thomas
approached the highlift, which was being operated by William Carr, an Ambrosia employee, and
asked him about the condition of the brakes. Id. Carr replied that they were bad. Id.; I-Tr. 250.
Thomas instructed Carr to position the highlift on a 30 to 40 degree incline and to engage the
parking brake. 16 FMSHRC at 2294. The highlift rolled down the incline. Id Thomas then
asked Carr to reposition the highlift or{ the incline and to apply the service brake. Id. The
highlift again rolled down the incline. Id. Thomas called Inspector Weakland, who,
accompanied by Steen, joined them. Id at 2294-95.
Inspector Weakland asked Carr if there were any brakes on the highlift. Id. Carr
responded. "[N]o, there isn't, [and] there hasn 't been." I-Tr. 31 . Weakland instructed Carr to
raise the bucket and test the service brake. 16 FMSHRC at 2294. The highlift drifted backwards
on fairly level ground.. Id. When Carr engaged the parking brake upon the inspector's
instructions, the highlift continued to drift. Id
Weakland testified that, after the brakes were tested, Carr informed him that the highlift
had no brakes for several weeks, and that he had notified the foreman, Steen, and recorded the
bad brakes in a maintenance log. Id. at 2295. Inspector Weakland testified that be then asked
Steen why he did not get the brakes repaired, and that Steen had replied that he had contacted the
maintenance shop but that it was "like pulling teeth to get things fixed around here." Id. The
inspectors continued inspecting the highlift and discovered the presence of an accumulation of
combustible fuel around a pivot point and the absence of a seatbelt and fire extinguisher. Id.
Inspector Weakland informed Steen that the highlift was unsafe to operate. Id.
Inspector Weakland and Thomas returned to the scale house to look for the maintenance
log, discuss the alleged violations, and prepare citations. Id. Thomas showed Inspector
Weakland a log entitled, "Daily Work and Cost Record," which contained entries noting "bad
brakes" for the highlift on May I, 4, 5, 6, 7, 8, 22, 26, 27, and 28, 1992. Id. Some entries were
initialed "B.C." for Carr, and some were initialed "W.S." for Steen, indicating that they had
operated the highlift on those dates. Id.
Weakland issued an order pursuant to section J04(d)(l) of the Act, alleging an S&S and
unwarrantable violation of 30 C.F .R. § 77 .1605(b), which was later modified to allege a violation
of section 77.404(a). I-Tr. 35-36. The face of the citation indicated that it was served to "Wayne

6

The hearing of this case is transcribed in two volumes. The first volume, covering June
28, 1994, shall be referred to as "I-Tr." and the second. covering June 29, as "II-Tr."

1554

Steen, Foreman." Gov't Ex. 4. Steen did not object to being identified as a foreman on the
citation. 16 FMSHRC at 2300. Weakland and Thomas then conducted a close-out conference
with Steen and Carmen Ambrosia, the owner of the mine. I-Tr. 41-42.
Mr. Ambrosia stated that he wanted to observe the brake demonstration. l 6 FMSHRC at
2296. The highlift was placed on an incline and Carr was instructed to separately engage the
parking brake and the service brake. Id The highlift rolled down the incline without hesitation
after each test. Id. Mr. Ambrosia told Steen that they could not stay in business operating
equipment in such condition. Id
The highlift was then removed from service. Id. Later that day, Timothy Yager, a
mechanic for Ambrosia, adjusted the brakes. II-Tr. 156-57. The citation was terminated after the
brakes held the highlift on an incline during a subsequent test. I-Tr. 44-45; II-Tr. 161.
After the inspectors left the mine, Carr admitted to Steen that he had made all of the
entries in the highlift maintenance log. 16 FMSHRC at 2296-97. Steen stated, "I guess that's
okay." Id. at 2297. Carr testified that, shortly after he told Steen, he also told Carmen Shick,
Ambrosia's vice-preside~t in charge of operations, that he had made the entries. Id. Shick
commented that, "that wasn't a very good idea," but took no action to change the entries. Id. On
approximately June 6, Steen falsified the official MSHA examination record by adding entries
noting the highlift' s "bad brakes" for May 30, June 2, and 3, 1992, and stating "repairing
highlift" for June 4. Id. ; II-Tr. 20.
On December 29. 1992, MSHA Special Investigator John Savine conducted an
investigation to determine whether Steen should be held individually liable under section l lO(c)
of the Mine Act for knowingly authorizing Ambrosia' s violation. 16 FMSHRC at 2297. Based
on that investigation, the Secretary proposed that a penalty in the amount of $3,500 be assessed
against Steen. Id. at 2303. The Secretary also proposed that a civil penalty in the amount of
$7,000 be assessed against Ambrosia for its alleged violation of section 77.404(a). Id.
Ambrosia and Steen challenged the enforcement actions and the matters were
consolidated and proceeded to hearing before Judge Fauver.7
The judge found that Ambrosia had violated section 77.404(a). Id. at 2298. He reasoned
that the lack of operable brakes on the highlift amounted to an unsafe condition, and that the
operator had failed to remove the equipment from service. Id The judge also determined that
the violation was S&S because the inoperable brakes posed a number of discrete safety hazards.

7

The judge visited the mine between the first and second day of the hearing. II-Tr. I 0.
He advised the parties that any observations that he made could be included in his findings, and
that the parties could propose findings based upon what they considered to be reasonable
observations. Id. at 10-11.

1555

Id. at 2299. He found the violation unwarrantable because the operator, through Steen, its
foreman and mine examiner, knew that the brakes were bad and failed to repair them or remove
the highlift from service. Id. The judge further concluded that, as a foreman, Steen was a
corporate "agent" under section 110(c) of the Mine Act, and that he had knowingly authorized
Ambrosia's violation because he had actual knowledge of the bad brakes for at least five days
and had failed to repair them or remove the equipment. Id. at 2300, 2302. Finally, the judge
assessed civil penalties of$11,000 and $4.000 against Ambrosia and Steen, respectively. Id. at
2306. He based the penalties, in part, upon his finding that Shick, who he found to be a
corporate agent, participated in the falsification of the maintenance log, and that the deliberate
cover-up by Steen and Shick increased the need for deterrence provided by higher penalties. Id.
at 2305-06.
Ambrosia and Steen each filed petitions for discretionary review challenging the judge's
determinations, which the Commission granted.

II.
Disposition
\

A.

Violation of Section 77.404Ca)

Ambrosia argues substantial evidence does not support the judge's finding that it violated
section 77.404(a) because the highlift had sufficient brakes to perform its functions. A. Br. at 1926. It emphasizes that Carr testified he was not concerned for his safety when operating the
highlift because he was working on level ground and loading in first gear, and that he could load
trucks without any brakes by "slip[ping] it in reverse and back[ing] up." Id. at 21-23; I-Tr. 333.
In addition, Ambrosia relies on testimony of its mechanic that the brakes required only
adjustment, rather than repair or replacement of parts, and that the adjustment was not extensive.
A. Br. at 23-24; II-Tr. 164-65. The Secretary responds that substantial evidence supports the
judge's determination because the highlift had no brakes and that such a condition would be
recognized as unsafe by a reasonably prudent person. S. Br. at 12-19.
As the Commission has previously r~cognized, section 77.404(a) imposes two duties: (1)
to maintain equipment in safe operating condition; and (2) to remove unsafe equ~pment from
service immediately. Peabody Coal Co., 1 FMSHRC 1494, 1495 (October 1979). The
"[d]erogation of either duty violates the regulation." Id. Substantial evidence supports the
judge's determination that Ambrosia derogated both duties. 8

8

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinatio_ns. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163

1556

Equipment is in unsafe operating condition under section 77.404(a) when a reasonably
prudent person familiar with the factual circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining industry' would recognize a hazard
warranting corrective action. See Alabama By-Products Corp., 4 FMSHRC 2128, 2129
(December 1982) (involving identical standard applicable to underground coal mines). Here, the
evidence is undisputed that when the parking brake and service brake were tested on fairly level
ground, the highlift drifted backwards. I-Tr. 34-35, 187. In addition, the highlift rolled without
hesitation down an incline when either brake was engaged. I-Tr. 44, 171, 173; II-Tr. 28-29.
Upon observing the brake demonstration on the incline, Ambrosia's owner, recognizing a hazard
warranting corrective action, told Steen, "we can't stay in business like this/' and "we can't
operate equipment like this." I-Tr. 176.
The evidence relied upon by Ambrosia does not, in fact, establish that the highlift was in
safe operating condition for the functions it performed. Carr stated that the highlift "had a little
bit of brakes on it to get by with," and that the brakes were only "good enough to stop me a little
bit on the level." I-Tr. 332, 355. He acknowledged that the brakes were not "good enough to
stop me on a ramp" and that he sometimes operated on the ramp. I-Tr. 355. Carr stated that
when he was on the ramp, in order to stop the highlift, he "went right around and parked it."
I-Tr. 355. Thomas 'testified that when he observed Carr operating the highlift to load a truck,
Carr was having difficulty stopping it. I-Tr. 162-64. Moreover, Carr admitted that he complained about the condition of the brakes to Steen days before the inspection, at least by May
27th or 28th. I-Tr. 329, 332, 336, 353-54. In addition, Carr's statement that he did not need
brakes when loading does not establish that the need for brakes would not arise. Inspector
Weakland testified that, without brakes, the highlift could collide with a truck driver or another
pedestrian, such as a mechanic or supervisor walking across the yard, or with a truck if the
highlift operator misjudged distances when loading it. I-Tr. 45-47. Moreover, regardless of the
extent of the brake adjustment required, the brakes were inoperable on the incline and on a fairly
level surface. where the highlift traveled during normal mining operations ..
Therefore, substantial evidence supports the judge's determination that the highlift was
not maintained in safe operating condition. Given the undisputed evidence that Ambrosia failed
to remove the highlift from service (16 FMSHRC at 2298), we affirm the judge's finding that
Ambrosia violated section 77.404(a).

(November 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). While
we do not lightly overturn a judge's factual findings and credibility resolutions, neither are we
bound to affirm such determinations if only slight or dubious evidence is present to support
them. See, e.g. , Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984);
Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We are guided by
the settled principle that, in reviewing the whole record, an appellate tribunal must also consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Universal Camera Corp. v. NLRB. 340 U.S. 474, 488 (1951).

1557

B.

Si~njficant and Substantial

Ambrosia argues that the judge erred in finding its alleged violation of section 77.404(a)
was S&S because the Secretary failed to establish that it was reasonably likely operating the
highlift would result in injury. A. Br. at 26-30. It submits there was little likelihood of a
collision between the highlift and a truck being loaded, or with a pedestrian or structure, because
Carr never dropped the highlift' s bucket~ the highlift was operated at low speed, the highlift
could reverse direction, and the brakes were sufficient to stop the highlift on level ground on the
day of the inspection.9 Id. at 27-28. Ambrosia also argues that it was unlikely the highlift would
roll on to the adjacent highway because the highway was 40 to 50 yards away from the operation
of the tipple. Id. at 28. The Secretary responds that the judge correctly detennined the violation
was S&S and that the evidence relied upon by Ambrosia established only that an accident had
not yet occurred. S. Br. at 22-23.
A violation is S&S if, based on 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 Div., Nat 'l Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co. , 6 FMSHRC I (January 1984), the Commission further explained:
'

In orde~·to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Id at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power. Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).

9

Ambrosia also argues that collision was'unlikely because the highlift was noisy, which
would warn a pedestrian of its approach, the highlift could stop a distance of eight to ten feet
moving forward or ten to twelve feet moving backward by dropping its bucket, and the highlift
could be turned. A. Br. at 27-28. As support for these assertions, Ambrosia cites the visit that
the judge made to the mine. Because the judg~ did not include his observations from that visit
in his decision, and no evidence was introduced at the hearing establishing those allegations, they
are not part of the official record. 30 U.S.C. § 823(d)(2)(C); see II-Tr. 10-11.

1558

At issue is whether the judge correctly determined that the Secretary established the third
Mathies factor. 10 In arguing that injury was not reasonably likely to occur, Ambrosia relies on
evidence relating to conditions or practices existing at the time of the inspection. An evaluation
of the reasonable likelihood of injury must be made assuming continued normal mining
conditions. US. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).
Taking into consideration continued normal mining conditions, substantial evidence
supports the judge's determination that the third Mathies factor was established. Evidence was
undisputed that the brakes were ineffective on the ramp and fairly level ground, where the
highlift traveled during normal operations. I-Tr. 34-35, 43-44, 171 , 176-77, 188, 355, 387.
Inspector Weakland testified that, without brakes, the highlift could collide with a truck driver or
other pedestrian in the yard and that, during the inspection, he had observed a truck driver get out
of his truck. I-Tr. 46, 52. In addition, he stated that the highlift could collide with a truck it was
loading if the highlift operator misjudged distances. I-Tr. 45. Thomas testified that, if the
highlift collided with anything in the tipple area, such as coal trucks, telephone poles, or the fuel
storage area, the highlift operator could be thrown through the windshield or against the steering
wheel. I-Tr. 178.
Carr' s statement that he never dropped the bucket to stop the highlift does not preclude
the possibility that another operator might do so or that an opportunity would arise when he
would find it necessary to do so. 11 Inspector Weakland testified that, if the highlift operator
dropped the bucket to stop the highlift, the bucket could collide with the ·s ide of the truck,
resulting in injuries or fatalities. I-Tr. 45-46. In any event, Thomas stated that shifting the
highlift into reverse while it is moving forward, the method of braking used by Carr (I-Tr. 333),
would result in a jerking motion and that the operator could be thrown through the windshield,
out of the vehicle, or against the steering wheel. I-Tr. 179-80. The hazard to the highlift
operator would be greater given that the seatbelt was missing from the highlift. I-Tr. 41 .
Furthermore, although the highway was 40 to 50 yards away from coal piles at the tipple,
Thomas stated that he believed that the highlift was used in all areas of the mine. I-Tr. 180. He
estimated that the highlift weighed 15 to 20 tons, and that it would be heavier and more difficult
to stop if it were carrying a load. I-Tr. 181. In addition, there were no berms or guardrails
separating the tipple area from the highway, and the highway received a great deal of traffic. ITr. 180-81.

10

Although Ambrosia also argues that the second Mathies element was not established,
its discussion of that issue relates to the third Mathies element. See A. Br. 26-28.
11

Ambrosia conceded as much in arguing that there was little likelihood of injury in part
because the highlift "could stop in a distance of eight to ten feet moving forwards or ten to
twelve feet moving backwards by means of dropping the bucket." A. Br. at 28. See n.9.

1559

Thus, the evidence relied upon by Ambrosia does not establish that injury was not
reasonably likely to occur. Rather, it establishes only that an accident had not yet occurred,
which is not dispositive of a finding that the third Mathies factor had not been established. Blue
Bayou Sand and Gravel, Inc., 18 FMSHRC 853, 857 (June 1996). Accordingly, we affirm the
judge's S&S determination.
C.

Unwarrantable Failure

In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined
that unwarrantable failure is aggravate? conduct constituting more than ordinary negligence. Id.
at 2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference" or a "serious lack ofreasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189, 193-94 (February 1991) ("R&P"); see
also Buck Creek Coal. Inc. v. FMSHRC, 52 F.3d at 136 (approving Commission's unwarrantable
failure test).
I.

Whether Steen's Conduct is Imputable to Ambrosia

of

The conduct an "agent" of an operator may be imputed to the operator for
unwarrantable failure purposes. R&P, 13 FMSHRC at 194. Section 3(e) of the Mine Act defines
"agent" as "any person charged with responsibility for the operation of all or part of a ... mine or
the supervision of the miners in a ... mine .... " 30 U.S.C. § 802(e).
Ambrosia argues that Steen was not an "agent" and that his conduct may not be imputed
to it for unwarrantable failure purposes. A. Br. at 17-18. Steen argues that he was not an agent
because he was not a foreman and that, rather, he admitted to only being the person in charge at
the mine. St. Br. at 3, 5-10. He submits that he did not possess the actual authority customarily
exercised by a foreman, including the ability to recommend hiring or firing, discipline
employees, change work schedules, adjust pay or terms of employment, or make contracts or
decisions regarding the sale of coal. Id. at 13-14, 20. The Secretary responds that, as a foreman,
Steen was an agent whose conduct was imputable to Ambrosia. S. Br. at 25 n.14, 29-39.
Steen's assertion that his job title was not ''foreman" and that there were some
supervisory functions that he did not perform is not dispositive of whether he was an agent
within the meaning of section 3(e). In considering whether an employee is an operator's agent,
the Commission has "relied, not upon the job title or the qualifications of the miner, but upon his
function, [and whether it] was crucial to the mine"s operation and involved a level of
responsibility normally delegated to management personnel." US. Coal, Inc., 17 FMSHRC
1684, 1688 (October 1995). Here, Steen accompanied the inspectors and attended the MSHA
close-out conference as Ambrosia's representative. I-Tr. 27, 175. In the close-out conference,
Weakland and Thomas informed Steen that ifqe had any disagreement with the citations, he had
ten days to request a manager's conference. I-Tr. 175. MSHA Inspector Thomas Sellers, who
had inspected the mine on July 2, 1991, and March 16, 1992, testified that Steen also acted as the

1560

company representative during those inspections. I-Tr. 280-81. Steen was paid a salary and did
not receive additional pay for working more than 40 hours per week, while rank-and-file miners
were paid hourly and received time-and-a-half for working overtime. 16 FMSHRC at 2301.
Steen, as a certified mine examiner, made required daily examinations at the mine and was
responsible for entering his findings in an MSHA examination book. I-Tr. 382; II-Tr. 18-19.
In addition, Steen gave work orders to abate citations. When Inspector Weakland
informed Steen that he was going to issue citations for the lack of seatbelt or fire extinguisher
and the accumulation of combustible materials, Steen instructed Carr to remove the combustible
materials and to get a fire extinguisher. I-Tr. 172. Inspector Weakland observed Steen direct
Carr to place a "no smoking" sign on a fuel tank and to place a guard on a tail roller to abate
other violations cited during the inspection. I-Tr. 138. MSHA Inspector Sellers testified that
during the inspections he conducted, Steen had also called the maintenance shop to explain
necessary repairs. I-Tr. 284-85. Thus, as the person "in charge" at the mine, the functions
performed by Steen were crucial to the mine' s operation and demonstrated an exercise of
responsibility normally delegated to management personnel.
Furthermore, the manner in which Steen was treated by those with whom he worked
demonstrates an exercise of responsibility normally delegated to management personnel. Carr
informed Inspector Weakland that he had reported the bad brakes to Steen, essentially
acknowledging Steen's position ofresponsibility. 16 FMSHRC at 2301. When the inspector
asked Steen why he did not get the brakes repaired, Steen did not reply that it was not his job to
remove equipment from service and arrange for repairs but, rather, that it was difficult to get
repairs made. Id. Mr. Ambrosia apparently believed that Steen held a position of responsibility
for overseeing conditions at the mine, exclaiming to Steen, "we can't stay in business like this,"
and "we can't operate equipment like this," after observing the brake demonstration. Id.
Therefore, we conclude that substantial evidence supports the judge' s determination that
Steen was an agent whose conduct was imputable to Ambrosia. 12

12

We also find evidence that Steen held himself out as the employee iµ charge at the
mine and signed official MSHA documents as the mine foreman relevant by analogy to common
law agency principles. See R&P, 13 FMSHRC at 195 (fmding analogous support in common
law agency principles). At common law, a principal is liable for the acts of an agent that are
apparently within the agent's authority and which the principal permits the agent to exercise.
3 Am Jur 2d Agency§§ 78, 79 (1986). A "principal may vest his agent with apparent authority
to perform an act by omission as well as commission, and such authority is implied where the
principal passively permits the agent to appear to a third person to have authority to act on his
behalf." Id. at§ 79. There is no record evidence that Ambrosia took any actions to demonstrate
that Steen did not. in fact, possess authority as the person in charge at the mine.

1561

2.

Whether Ambrosia Engaged in Aggravated Conduct

Substantial evidence supports the judge's detennination that Ambrosia, through Steen,
engaged in aggravated conduct that amounted to more than ordinary negligence when it failed to
maintain the highlift in safe operating condition or remove the highlift from service. Carr
admitted that he informed Steen of the condition of the brakes on May 27 or 28. I-Tr. 329, 334,
336, 358. Steen conceded that, if Carr stated that he told him about the brake condition, Carr did.
I-Tr. 375. Steen maintains that during the end of May, however, he believed the brakes needed
adjustment, rather than that they were completely ineffective. I-Tr. 387; II-Tr. 32. The judge's
discrediting of that evidence is supported by substantial evidence. On the morning of the
inspection, Steen observed Carr loading with the highlift. II-Tr. 12-13. On that day, Carr was
observed having difficulty stopping the highlift by Inspector Thomas. I-Tr. 162-63. When
tested, the brakes failed to stop the highlift on the ramp and on fairly level ground. I-Tr. 37, 162,
164, 171. Steen himself admittedly falsified the inspection manual to state "bad brakes" on May
30, June 2 and 3. 13 II-Tr. 20. Moreover, on the day of the inspection, when Inspector Weakland
asked Steen why he had not had the brakes repaired, Steen did not react with surprise that the
brakes required repair. Rather, he stated that it was "like pulling teeth to get things fixed around
here." I-Tr. 37:. 16 FMSHRC
at 2299. Therefore, substantial evidence supports the judge's
\
determination that Steen knew the brakes were bad at least five or six working days before the
inspection.
In addition, although he had been informed about the condition of the brakes, Steen failed
to remove the highlift from service or insure that the brakes were repaired. Inspector Weakland
testified that Steen informed him that he called the maintenance foreman when Carr told him
about the brakes, but that the foreman did not send anybody to repair the brakes. I-Tr. 67-68.
The judge's finding that Steen, in fact, had not contacted maintenance (16 FMSHRC at 2295), is
supported by substantial evidence given the maintenance foreman's testimony that he had not
been notified before the inspection that the brakes on the highlift required repair or adjustment.
11-Tr. 167-68. In any event, even if Steen had contacted the maintenance shop, he failed to
remove the equipment from service until repairs were made. Accordingly, we affirm the judge's
determination that Ambrosia's violation of section 77.404(a) resulted from its unwarrantable
failure through imputation of the conduct of its agent, Steen.

D.

Steen's Liability Under Section I lOCc)

Steen argues that the judge erred in concluding that he was a foreman and, therefore, an
agent subject to liability under section 11 O(c) of the Act. St. Br. at 2-3. The Secretary relies
upon the same evidence establishing Ambrosia's aggravated conduct to assert that Steen
kn~wingly authorized Ambrosia's violation of section 77.404(a) in violation of section 11 O(c).
S. Br. at 39-40.

13

Steen testified that he mistakenly failed to make an entry for June 1. II-Tr. 23.

1562

Section 110(c) of the Mine Act provides that, whenever a corporate operator violates a
mandatory safety standard, any agent of the corporate operator who "knowingly authorized,
ordered, or carried out such violation" shall be subject to individual civil penalty. We conclude
substantial evidence supports the judge's determination that Steen was liable under section
llO(c).
First, Steen's position as the salaried person in charge at the mine who represented the
operator during inspections, close-out conferences and in receiving citations, and who gave
abatement instructions, was crucial to the mine's functioning and involved a level of
responsibility normally delegated to management personnel. See US Coal, 17 FMSHRC at
1688. Therefore, Steen was an "agent" within the meaning of section 3(e) of the Act. 14
Furthermore. substantial evidence supports the judge' s determination that Steen
knowingly authorized Ambrosia' s violation of section 77.404(a). Steen had actual knowledge of
the brake condition for at least five or six working days before the inspection but failed to have
the brakes repaired or the highlift removed from service. Steen's assertion that he believed the
brakes only needed adjustment and not that they were completely ineffective is unpersuasive
given the Commission's recognition that, in order to prove section 110(c) liability, the Secretary
"must prove only that an individual knowingly acted, not that the individual knowingly violated
the law." WarrenSteenConstr., Inc., 14FMSHRC 1125, 1131(July1992)(citing United States
v. International Minerals & Chem. Corp., 402 U.S. 558, 563 (1971 )). Steen knew that Carr was
operating the highlift after complaining about the condition of the brakes, and observed him
loading on the day of the inspection when the brakes were ineffective on the ramp and fairly
level ground. In addition, Steen defended his failure to repair the brakes, not with surprise that
the brakes were ineffective, but by stating that getting repairs made was difficult. 16 FMSHRC
at 2295. Accordingly, we affirm the judge's determination that Steen was liable under section
l lO(c) of the Act.

14

The judge found that Steen' s status as a certified mine examiner was relevant to his
status as an agent for unwarrantable failure purposes, but not for purposes of Steen's liability
under section 110(c). 16 FMSHRC at 2299 n. l, 2300 n.2. The judge reasoned that the Secretary
failed to allege in his penalty proposal or prehearing statements that he considered Steen an agent
under section 110(c) because he was a certified mine examiner and that, accordingly, Steen had
been deprived of timely notice of the theory. Id. at 2300 n.2. In arguing on review that Steen
was an agent subject to liability under section 110(c), the Secretary relies upon evidence that
Steen was a certified mine examiner. S. Br. at 34. Even excluding Steen's function as a certified
mine examiner. we conclude that substantial evidence supports the judge's determination that
Steen was an agent for section 110(c) purposes.

1563

E.

Civil penalties

Ambrosia argues that the judge erred in assessing its penalty by failing to find good faith
in achieving rapid compliance and by increasing the penalty from that proposed by the Secretary
based on his determination that Shick, who he found to be a corporate agent, participated in the
falsification of the maintenance log. A. Br. at 15-17. It argues that the increase in penalty was
unreasonable for the additional reason that the Secretary had proposed a penalty of $7,000 based
on a contention that the falsified log entries had, in fact, been genuine and provided notice of the
brake problem. Id. at 16. Steen argues that the penalty assessed against him was excessive. St.
Br. at 24-26. The Secretary agrees that the judge erred in assessing both penalties. S. Br. at 4146.
The Commission's judges are accorded broad discretion in assessing civil penalties
under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (April 1986). The
Commission has cautioned, however, that the exercise of such discretion is not unbounded and
must reflect proper consideration of the penalty criteria set forth in section 11 O(i) of the Mine
Act. 15 Id. (citing Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (March 1983), aff'd, 736 F.2d
1147 (7th Cir. 1984)). '1p reviewing a judge's penalty assessment, the Commission must
determine whether the judge's findings are supported by substantial evidence. Assessments
"lacking record support, infected by plain error, or otherwise constituting an abuse of discretion
are not immune from reversal." U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). The
judge must make findings of fact on the criteria that "not only provide the operator with the
required notice as to the basis upon which it is being assessed a particular penalty, but also
provide the Commission and the courts ... with the necessary foundation upon which to base a
determination as to whether the penalties assessed by the judge are appropriate, excessive, or
insufficient." Sellersburg, 5 FMSHRC at 292-93.

15

Section 11 O(i) sets forth six criteria for assessment of penalties under the Act.
The Commission shall have authority to assess all ·civil
penalties provided in [the Act]. In assessing civil monetary
penalties, the Commission shall consider the operator's history of
previous violations, the appropriateness of such penalty to the size
of the business of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good
faith of the person charged in att~mpting to achieve rapid
compliance after notification of a violation.

30 U.S.C. § 820(i).

1564

Contrary to Ambrosia's assertions, the judge did not err in analyzing the penalty criterion
of good faith in achieving rapid compliance. As the judge found, the violation of section
77.404(a) was abated as soon as the inspector removed the highlift from service. 16 FMSHRC at
2305. Because the operator had no opportunity to show its good faith in rapidly achieving
compliance, the judge properly neither increased nor decreased the penalty based upon his
consideration of the factor.
In addition, we reject Ambrosia's argument that the assessment is erroneous because the
penalty proposal was based upon the mistaken conclusion that the maintenance log entries were
genuine and provided notice to the operator. There is no indication that the judge erroneously
concluded he was bound by the Secretary's proposed penalty or that he relied upon the mistaken
conclusion that the log entries provided notice. See 29 C.F.R. § 2700.30(b) (Judges and the
Commission are not bound by the penalty proposal in assessing penalty). In fact, the judge
expressly found that the entries were false and provided no notice. 16 FMSHRC at 2304.
The judge abused his discretion, however, in increasing Ambrosia's penalty for
deterrence purposes based on his finding that Shick was a corporate agent who participated in the
record falsification. Th~ Secretary had not made any allegations of wrongdoing or initiated
enforcement proceedings against Shick. The judge, who is not an authorized representative of
the Secretary, cannot make findings that create new liability. Mettiki Coal Corp., 13 FMSHRC
760, 764 (May 1991 ). 16 Moreover, although deterring future violations is an important purpose
of civil penalties. 17 deterrence is achieved through the assessment of a penalty based on the six
statutory penalty criteria. See Dolese Bros.Co., 16 FMSHRC 689, 695 (April 1994) (a judge's
consideration is limited to the statutory penalty criteria). Deterrence is not a separate component
used to adjust a penalty amount after the statutory criteria have been considered.
In addition, the judge erred in assessing Steen's penalty. The judge failed to set forth
findings applying the statutory criteria to Steen as an individual. Without such findings. Steen
does not have sufficient notice of the basis of his penalty, and the Commission does not have the
necessary foundation to determine whether the penalty was appropriate. Sellersburg, 5
FMSHRC at 292-93.

16

We hereby vacate any references in the judge's decision to alleged wrongdoing by

Shick.
17

As recognized in the legislative history of the Mine Act, the purpose of civil penalties
is to "convinc[e] operators to comply with the Act's requirements." S. Rep. No. 181 , 95th
Cong., 1st Sess. 45 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal Mine Safety and Health Act
of 1977, at 633 (1978). See also Consolidation Coal Co., 14 FMSHRC 956, 965 (June 1992)
(recognizing importance of civil penalties as deterrence).

1565

Accordingly, we vacate the penalties assessed against Ambrosia and Steen and remand
for reassessment consistent with this decision.
III.
Conclusion
For the foregoing reasons, we affirm the judge's determination that Ambrosia violated
section 77.404(a), that the violation was S&S and resulted from Ambrosia's unwarrantable
failure, and that Steen is liable under section 11 O(c) of the Mine Act for knowingly authorizing
the violation. We vacate the penalties assessed against Ambrosia and Steen and remand for
reassessment.

Marc Lincoln Marks, Commissioner

es C. Riley, Commissione.~-· - ·· ·-·

1566

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
William P. Getty, Esq.
Hugh F. McGough, Esq.
Meyer, Unkovic & Scott
1300 Oliver Building
Pittsburgh, PA 15222
Frank G. Verterano, Esq.
Verterano & Manolis
2622 Wilmington Rd.
New Castle, PA 16105
Administrative Law Judge William Fauver
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judge
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041

1567

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

September 16, 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. PENN 93-445
PENN 94-54

V.

NEW WARWICK MINING COMPANY

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1
DECISION
'

BY: Jordan, Chairman; and Riley, Commissioner
These civil penalty proceedings, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), raise the issues of whether
Administrative Law Judge Arthur Amchan properly concluded that a violation of 30 C.F.R.
§ 75.4002 by New Warwick Mining Company ("New Warwick") resulted from its unwarrantable
failure to comply with the standard, whether there was no violation of 30 C.F.R. § 75.360(b),3

1

Commissioner Holen participated in the consideration of this matter, but her term
expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2 Section 75.400 states:

Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active
workings, or on electric equipment therein.
3

Section 75.360(b) states, in part:
The person conducting the preshift examination shall
examine for hazardous conditions ....

1568

and whether five violations of 30 C.F .R. § 77 .2024 were not significant and substantial ("S&S").
16 FMSHRC 2451 (December 1994) (ALJ). The Commission granted cross-petitions for
discretionary review challenging these determinations. For the reasons that follow, we affirm in
part, vacate in part, and remand. s
I.

Factual and Procedural Background
A.

Docket No. PENN 94-54

New Warwick operates the Warwick Mine, an underground coal mine, in Greene County,
Pennsylvania. On July 26-28, 1993, Robert Santee, an inspector from the Department of Labor's
Mine Safety and Health Administration ("MSHA"), inspected the 3 left (012) longwall section of
the mine. 16 FMSHRC at 2452. During this period, New Warwick was mining through a rock
binder in the coal seam, which generated increased amounts of dust. Id. at 2453. In addition, as
the longwall shields advanced, they dug into the mine bottom, "rolling" it onto the shield toes. 6
Tr. 110-11. On July 26, Santee found float coal dust accumulations ranging up to 114-inch deep
on and behind the longwall shields and issued a citation for violation of section 75.400. 16
FMSHRC at 2452; Gov't Ex. 4. He informed the mine superintendent and longwall coordinator
that the hose attached to the longwall shear was inadequate to prevent dust from accumulating
and that washdown hoses needed to be installed across the pan line. 16 FMSHRC at 2452; Tr.
23, 79, 160.
On July 27, Santee discovered an accumulation of loose fine coal on a pump car at the
end of the longwall supply track and issued another citation for violation of section 75.400. 16
FMSHRC at 2452; Gov't Ex. 5. He also observed coal dust accumulations on and behind the
longwall shields, but he did not issue a citation because cleanup was being performed. 16

4

Section 77 .202 states:
Coal dust in the air of, or in, or on the surfaces of,
structures, enclosures, or other facilities shall not be allowed to
exist or accumulate in dangerous amounts .

5

.

Chairman Jordan and Commissioners Marks and Riley vote to affirm the judge's
determinations that the violation of section 75.400 resulted from unwarrantable failure and that
there was no violation of section 75.360(b). Chairman Jordan and Commissioner Riley vote to
·vacate the judge's determination that the violations of section 77 .202 were not S&S and remand
for further consideration. Commissioner Marks would reverse the judge's S&S determination.
6

A shield toe is the horizontal, bottom part of the shield. Tr. 26.

1569

FMSHRC 2452. Santee discussed with the mine safety director the need for continued efforts to
prevent violations of section 75.400 at the longwall. Id; Tr. 25, 28.
On July 28, Michael Smith, the longwall foreman on the njght shift7 at Warwick Mine,
conducted a preshift examination of the mine from l :00 to 3:00 a.m. Tr. 21, 128. When Smith
examined the 3 left (012) longwall section, he did not note any hazardous accumulations of loose
coal or coal dust. Tr. 21, 132. The longwall broke down at approximately 3:30 a.m. Tr. 21. At
5: 10 a.m., Inspector Santee, accompanied by Barry Radolec, an inspector trainee, inspected the
longwall section. 16 FMSHRC at 2452; Tr. 90. Santee found float coal dust accumulations
ranging up to 114-inch deep on the longwall shields. 16 FMSHRC at 2452; Gov't Ex. 1. He also
found float coal dust accumulations on cables, loose coal accumulations ranging up to 6-inches
deep behind the longwall shields, and loose coal mixed with slate rock up to 22-inches deep on
some of the shield toes. Id
Based on the foregoing, Inspector Santee issued New Warwick Order No. 3655504,
pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), alleging an unwarrantable
and S&S violation of section 75.400 for failure to clean up the accumulations. 16 FMSHRC at
2452-53; Gov't Ex. 'l· In addition, Santee issued New Warwick Order No. 3655505, pursuant to
section 104(d)(2), alleging an unwarrantable and S&S violation of section 75.360(b) for failure
to note the accumulations in the preshift examination record book. 16 FMSHRC at 2453; Gov't
Ex. 2.
The Secretary of Labor subsequently proposed civil penalty assessments of $4, 100 and
$3,800 for the alleged violations of sections 75.400 and 75.360(b), respectively. New Warwick
challenged the proposed assessments, contending that it had not violated the standards, the
violations were not S&S, and the violations were not caused by its unwarrantable failure.
Following an evidentiary hearing, the judge concluded that New Warwick had violated
section 75.400, that the violation was not S&S, but that it had resulted from New Warwick's
unwarrantable failure to comply with the standard. 16 FMSHRC at 2452-56. The judge based
the unwarrantable failure determination on his findings that, although the accumulations "had not
existed for a long time," the accumulations were extensive, New Warwick should have been on
"heightened alert" that such accumulations could occur, and New Warwick had not immediately
commenced cleanup of the accumulations. Id. at 2455 & n.5. He assessed a civil penalty of
$2,000. id. at 2455-56.
Further, the judge concluded that New Warwick had not violated section 75.360(b). Id. at
2456. He reasoned that the order was based on the assumption that the accumulations that served
as ·t he basis for the violation of section 75.400 were present during the preshift examination. Id.

7

The night shift worked from 4:00 p.m. to 4:00 a.m. and the day shift worked from 4:00
a.m. to 4:00 p.m. 16 FMSHRC at 2456; Tr. 28.

1570

The judge credited the testimony of Smith, who conducted the preshift examination between
1:00 and 3 :00 a.m., that he had not observed any hazardous accumulations of ~al or coal dust.
Id. Recognizing that the longwall broke down at 3 :30 a.m., the judge concluded that the
accumulations observed by the inspector "may not have been present or may not have been as
extensive" during the preshift examination. Id. Therefore, the judge determined that the preshift
examination "may not have been inadequate" and he vacated the order. Id
The Commission subsequently granted cross-petitions for discretionary review filed by
New Warwick, challenging the judge's determination that the violation of section 75.400 was
unwarrantable, and by the Secretary, cl:)allenging the judge' s determination that there was no
violation of section 75.360(b).
B.

Docket No. PENN 93-445

On May 19, 1993, MSHA Inspector Frank Terrett inspected six overland conveyor belt
transfer stations at Warwick Mine. 8 16 FMSHRC at 2459. Inside five of the transfer stations,
Terrett found coal dust accumulations ranging from 1/8-inch to 4-inches deep on top of motors,
inside electrical boxes, around belt rollers, and on the floors. Iil. ; Tr. 187, 189-90, 194-95, 20809. Accordin'gly, he issued New Warwick five citations, pursuant to section 104(a) of the Mine
Act, 30 U.S.C. § 814(a), alleging violations of section 77.202 for failure to clean up the
accumulations. 16 FMSHRC at 2459; Gov' t Exs. 17-21. Subsequently, Inspector Terrett
modified the citations to designate the violations as S&S. 16 FMSHRC at 2460; Tr. 202, 21517; Gov't Exs. 17-21.
The Secretary proposed civil penalty assessments totaling $4,060 for the alleged
violations. New Warwick challenged the proposed assessments, contending that it had not
violated the standard and the violations were not S&S.
Following an evidentiary hearing, the judge concluded that New Warwick had violated
section 77.202 but that the violations were not S&S. 16 FMSHRC at 2459-61. He noted that the
Secretary's theory that the violations were S&S was based largely on the need for an employee to
jump from the second floor of the transfer station to escape a fire resulting from the
accumulations. Id at 2461. The judge found that each transfer station had three exits on the first
floor and two or three exits on the second floor and that an employee would not have to jump
from the second floor to escape a fire. Id. Therefore, he concluded that the Secretary had failed

8

The overland conveyor belt travels over fields from the supplier to the river. Tr. 204.
The transfer stations house motor drives that operate contiguous sections of the conveyor belt.
16 FMSHRC at 2459; Tr. 187. Each transfer station is a 20-feet-square, 2-story metal building
with a concrete first floor and a grate-type second floor. Tr. 204, 227, 229.

1571

to establish a reasonable likelihood of serious injury. Id. The judge assessed civil penalties
totaling $1,800. Id at 2462.
The Commission subsequently granted the petition for discretionary review filed by the
Secretary, challenging the judge's determination that the violations of section 77.202 were not
S&S.

II.
Disposition
A.

Docket No. PENN 94-54
1.

Unwarrantable Failure

New Warwick argues substantial evidence9 does not support the judge's finding that the
section 75.400 accumulation violation was unwarrantable. It asserts that the accumulations had
not existed for a long time and were not extensive, it was not on heightened alert for
accumulations, cleantip surpassing the requirements of its cleanup plan had been performed by
the night shift, and the area was going to be hosed down on the first pass by the day shift. N.W.
Br. at 4-9. The Secretary responds that substantial evidence supports the judge's finding. He
asserts that the accumulations were extensive and took at least one shift to amass, New Warwick
was on notice that accumulations violated the standard, no cleanup had been performed by the
night shift, and New Warwick's compliance with its cleanup plan does not shield it from an
unwarrantable failure finding. S. Resp. Br. at 3-10.
The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in colUlection with a
violation. In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission

9

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 ( 1938). While
we do not lightly overturn a judge's factual findings and credibility resolutions, neither are we
bound to affirm such determinations if only slight or dubious evidence is present to support
them. See, e.g., K.rispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984);
Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We are guided by
the settled principle that, in reviewing the whole record, an appellate tribunal must also consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

1572

determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference" or a "serious lack ofreasonable care." Id. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991); see also
Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's
unwarrantable failure test)'. The Commission "has recognized that a number of factors are
relevant in determining whether a violation is the result of an operator's unwarrantable failure,
such as the extensiveness of the violation, the length of time that the violative condition has
existed, the operator's efforts to eliminate the violative condition, and whether an operator has
been placed on notice that greater efforts are necessary for compliance." Mullins & Sons Coal
Co., 16 FMSHRC 192, 195 (February 1994), citing Peabody Coal Co., 14 FMSHRC 1258, 1261 .
(August 1992).
Preliminarily, the judge's finding that the accumulations "had not existed for a long time"
is supported by substantial evidence. The record indicates the accumulations resulted in part
from a reduced amount of water applied on the last pass of the longwall shear on the night shift.
16 FMSHRC at 2455. Paul Wells, New Warwick's longwall foreman on the day shift, testified
that the night shift h~d "cut out," i.e., turned around, at the no. 1 shield -- a process which
produces a large amount of water mist and dust. Id. at 2454; Tr. 107-08, 118, 120. He explained
that, during this process the crew usually reduces the amount of water to avoid getting wet from
mist caught in the air traveling down the face. Tr. 118. Wells further stated that water sprays on
the shear were suppressing dust from the headgate to the No. 40 shield during the last 10 or 15
minutes of the shift, but that a miner probably did not manually hose down the shields. Tr. 11819, 121-2~. In addition, the judge noted that, contrary to Inspector Santee's and Radolec's
testimony that it appeared the longwall section had not been cleaned recently and the
accumulations had collected over a full shift, Foreman Smith testified that cleanup had occurred
during the night shift. 16 FMSHRC at 2453, 2455 n.5, citing Tr. 128-30 (longwall shields were
hosed down "usually [on] every pass" and two crew members did nothing but shovel).
Although the accumulations had not existed for a long period of time, substantial
evidence supports the judge's determination that New Warwick's violation was aggravated given
the extensiveness of the accumulations, the fact that New Warwick had been placed on notice
that greater efforts were necessary for compliance with the standard, and New Warwick's failure
to immediately clean up the accumulations.
First, substantial evidence supports the judge's finding that the accumulations were
extensive. 16 FMSHRC at 2455. Float coal dust had accumulated up to 1/4-inch deep on
surfaces of the longwall shields, headgate, stageloader, cables, and cable trough, covering
energized parts that supply power to the longwall shear. Tr. 18-19, 56, 92-94; Gov't Ex. 1. In
addition, loose coal had accumulated up to 6-inches deep behind the longwall shields and loose
coal mixed with slate rock had accumulated up to 22-inches deep on some of the shield toes. Tr.
92-93; Gov't Ex. 1. The accumulations were deposited along the entire longwall section, which
was 123 shields in length. Tr. 98-99, l 08: Gov't Ex. 1.

1573

Second, the judge· s finding that New Warn·ick ''should have been on a ' heightened alert'
that such accumulations could occur" is also supported by substantial evidence. 16 FMSHRC at
2455, citing Drummond Co., 13 FMSHRC 1362, 1368 (September 1991 ). The Commission has
recognized that repeated similar violations may be relevant to an unwarrantable failure
determination to the extent that they place an operator on notice that greater efforts are necessary
for compliance with a standard. Peabody, 14 FMSHRC at 1263-64; Drummond, 13 FMSHRC at
1363-64, 1368. The record indicates that, during the previous inspection period (April 1 to June
30, 1993), MSHA had found 16 violations of section 75.400 at Warwick. Gov't Ex. 1.
.
Moreover, twice during the two days preceding issuance of the instant order, Inspector Santee
informed New Warwick that similar accumulations were not permitted. In fact, the mine
superintendent assured Inspector Santee that preventive measures would be taken seriously
because MSHA could use it as a basis for an unwarrantable failure finding. Tr. 24.
Finally, substantial evidence supports the judge's finding that New Warwick failed to
take sufficient measures to clean up the accumulations. 16 FMSHRC at 2455 & n.5 . In Utah
Power and Light Co., 11 FMSHRC 1926. 1933 (October 1989), the Commission held that the
operator did not demonstrate unwarrantable failure because before and during the inspection,
miners were shoveling the accumulations and attempting to abate the condition. Here. New
Warwick was not engaged in cleanup when Inspector Santee observed the accumulations. Tr. 22,
108-09, 117. 128-30. Further. New Warwick had not yet implemented Inspector Santee's
recommendation that additional washdown hoses be installed to facilitate cleanup of the
accumulations. Tr. 79. Given New Warwick's knowledge that the reduction of water would lead
to accumulations and that it had been warned during both of the past two days not to allow
accumulations to exist, its reliance on the night shift's cleanup efforts or on the anticipated
efforts of the day shift was not reasonable. See Cyprus Plateau Mining Corp., 16 FMSHRC
1610, 1615 (August 1994) (to support a conclusion that an operator's conduct was not
unwarrantable, an operator' s good faith belief that its conduct was the safest method of
compliance must be reasonable).
Based on consideration of the above factors, we conclude that substantial evidence
supports the judge' s determination that New Warwick demonstrated aggravated conduct by
failing to clean up the accumulations. Accordingly, we affirm the judge·s holding.
2.

Violation of Section 75.360Cb)

The Secretary argues that substantial evidence does not support the judge's finding that
there was no violation of the section 75.360(b) presh1ft examination requirement. He asserts that
the accumulations were extensive and took at least one shift to amass. the accumulations likely
existed during the preshift examination, and the judge' s finding that there was no preshift
violation does not accord with his finding that the related accumulation violation was
unwarrantable. S. Br. at 6-9. New Warwick respqnds that substantial evidence supports the
judge's finding. N.W. Resp. Br. for Dckt. No. PENN 94-54 at 5-10.

1574

In concluding that the accumulations may not have existed or been as extensive during
the preshift examination, the judge credited Foreman Smith's testimony that ~e had not observed
any hazardous conditions over Inspector Santee's assumption that the accumulations had
collected over a full shift. 16 FMSHRC at 2456. We find no basis to reverse the judge' s
credibility determination. The record indicates that the preshift examination of the mine was
conducted between 1:00 and 3 :00 a.m. (Tr. 21) but does not specify the time at which the
longwall section was examined. Smith related that mining conditions were adverse and, as soon
as the shields moved, they looked as though they had not been cleaned. Tr. 132. He asserted
that the accumulations of float dust in the trough could have amassed in one pass of the longwall
shear, which normally takes 30 to 45 minutes. Tr. 86-87, 111-12, 132-33. Thus, the longwall
section could have been examined early during the preshift examination and one or more passes
of the longwall could have occurred before the longwall broke down at 3:30 a.m. Therefore, the
judge's conclusion that the accumulations may not have existed or been as extensive at the time
the longwall section was examined is supported by substantial evidence. Accordingly, we affirm
the judge's holding that New Warwick did not violate section 75.360(b). ' 0
B.

Docket No. PENN 93-445
1.

Si~nificant and Substantial

The Secretary argues substantial evidence does not support the judge's finding that the
section 77.202 accumulation violations in the transfer stations were not S&S. He asserts the
j udge ignored testimony that an explosion, rather than a fire alone, was reasonably likely to occur
and result in serious injury. S. Br. at 9-13 . New Warwick responds that substantial evidence
supports the judge's finding. It contends that the inspector improperly modified the citations, a
fire and subsequent explosion were not likely. and an explosion has never occurred in a transfer
station. N.W. Resp. Br. for Dckt. No. PENN 93-445 at 6-12.
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on 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 Div., Nat '/ Gypsum Co., 3
FMSHRC 822, 825 (April 1981 ). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission further explained:
In order to establish that a ·violation of a mandatory safety
standard is significant and substantial under National Gypsum, the

10

We reject the Secretary's argument that the judge' s determination that there was no
preshift violation is inconsistent with his finding that the violation of section 75.400 was
aggravated. Although the accumulations were extensive, they could have amassed following
examination of the Jongwall section.

1575

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.

Id. at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d at 135; Austin
Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
An evaluation of the reasonable likelihood of injury should be made assuming continued normal
mining operations. U.S. Steel Mining Co. , 7 FMSHRC 1125, 1130 (August 1985). When
examining whether an explosion or ignition is reasonably likely to occur, it is appropriate to
consider whether a " confluence of factors" exists to create such a likelihood. Texasgulf. Inc., I 0
FMSHRC 498, 501 (April 1988); see also Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184
(February 1991 ).
We agree with the Secretary that the judge erred by failing to address the hazard of
explosion. The record indicates that Inspector Terrett was concerned about both the hazards of
fire, which could result fr.9m deposited coal dust. and explosion, which could result from
suspended coal dust. Tr. 192, 195, 201-02. 210-14, 219, 222. Terrett acknowledged that, ifthere
were only a fire, an employee would not have difficulty getting out of the transfer station because
he would have warning. Tr. 222-23. He also testified, however, that if the fire were
instantaneous and created a dust explosion, an employee would have difficulty escaping and
could be "killed right there." Tr. 195, 223. In addition to his conc~m that an employee might
have to jump off of the second floor to escape a fire or explosion, Terrett was concerned that an
employee could be burned, inhale smoke or byproducts of the belts, or might not be able to get
out of the building. Tr. 201 , 202-03, 213.
New Warwick 's argument that there is no evidence an explosion has ever occurred in a
transfer station is not dispositive of an S&S finding. Buffalo Crushed Stone, Inc. , 16 FMSHRC
2043, 2046 (October 1994); Ozark-Mahoning Co., 8 FMSHRC 190, 192 (February 1986).
Furthermore, the record does not suggest that Inspector Terrett acted inappropriately by
modifying the citations. Terrett testified he modified the S&S designations after realizing the
seriousness of the violations. Tr. 202-03, 215. He explained that, as a new inspector, he was
inexperienced with "putting [citations] together" and writing modifications. Tr. 216. Terrett
stated that he conferred with his supervisor to ensur~ that the modifications were correct. Tr.
216-17.
Because the judge failed to evaluate evidence or make findings and conclusions regarding
the hazard of explosion, we vacate the judge's determination that the violations were not S&S
and remand the matter for further consideration.

1576

III.
Conclusion
For the foregoing reasons, we affinn the judge' s detenninations that the violation of
section 75.400 resulted from unwarrantable failure and that there was no violation of section
75.360(b). In addition, we vacate the judge's determination that the violations of section 77.202
were not S&S and remand for further consideration.

c.~

1577

Commissioner Marks, concurring in part and dissenting in part:
I concur in this decision, with the exception of the disposition regarding the violations of
30 C.F.R. § 77.202. In view of the record evidence, I conclude that the violations were S&S and
therefore I would reverse the judge's contrary conclusion.

Marc Lincoln Marks, Commissioner

1578

Distribution

Joseph A. Yuhas, Esq.
1809 Chestnut Avenue
P.O. Box 25
Barnesboro, PA 15714
Jerold Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1579

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

September 20, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 93-123-M
WEST 93-286-M
WEST 94-5-RM

\I.

D.H. BLATTNER & SONS, INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1
DECISION
BY THE COMMISSION~
In these consoHdated contest and civil penalty proceedings, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act'' or "Act"),
Administrative Law Judge John J. Morris determined that D.H. Blattner & Sons, Inc.
("Blattner"), an independent contractor, was required to file an operator legal identity report
under 30 C.F.R. § 41.20. 2 16 FMSHRC 1762 (August 1994) (ALJ). For the reasons set forth
below, we affirm his decision.

1

Commissioner Holen participated in the consideration of this matter, but her term
expired before issuance of this decision. Pursuant to section l 13(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2

Section 41.20, entitled "Legal identity report," provides, in part:
Each operator of a coal or other mine shall file notification
of legal identit~ and every change thereof with the appropriate
district manager of the Mine Safety and Health Administration by
properly completing, mailing, or otherwise delivering form 2000-7
"legal identity report" which shall be provided by the Mine Safety
and Health Administration for this purpose.

1580

I.
factual and Procedural Background
Blattner is a construction company engaged in a variety of projects, including highway
construction and mining. 16 FMSHRC at 1763-64. These cases involve three citations issued to
Blattner for failure to file a legal identity repo11 at three separate mining operations: the Yankee
Project and Aurora Partnership Mines in Nevada and the Van Stone M ine in Washington State.
Id. at 1763. Prior to the issuance of the citations. Blattner obtained a contractor identification
number pursuant to 30 C.f'.R. § 45.3,3 which it used on all of its jobs at mines. Id. at 1764.
A.

Yankee Project

The Yankee Project Mine is an open pit, heap leach gold mine~ owned by USMX, Inc.
("'USMX"). I 6 FM SH RC at 1764. Prior to the citation at issue. USMX had a mine
identification number, No. 26-02190, covering the entire operation. Tr. 51; R. Ex. I. The mine
contains a pit area, a crushing and leaching operation adjacent to the pit, and a mill area that is
5 miles away. Tr. 46, 49-51; R. Ex. 10. On October I 7. 1991, Blattner entered into a contract
with USMX to perform. services in the pit, including drilling, blasting, loading, hauling and
dumping ore and waste material. 16 FMSHRC at 1764; J. Ex. 1, at 14- 16. Blattner retained a
subcontractor, ICJ Explosives ("ICI"), to perform drilling and blasting work. 16 FMSHRC at
1764.

3

Section 45.3, entitled "Identification of independent contractors," provides, in part:
(a) Any independent contractor may obtain a permanent MSHA
identification number. To obtain an identification number, an
independent contractor shall submit to the District Manager in
writing the following information:
(I) The trade name and business address of the independent
contractor;
(2) An address of record for service of documents;
(3) A telephone number at which the independent contractor can
be contacted during regular business hours; and
(4) The estimated annual hours worked on mine prope11y ....

4

Heap leaching is a process to extract gold by use of cyanide carbon solution. Tr. 27.

1581

In September 1992, Steven A. Cain, an inspector with the Department of Labor's Mine
Safety and Health Administration ("MSHA"), inspected the Yankee Project Mine and learned
that Blattner was extracting ore from the pit and supplying it to USMX to process. Id. at 1771.
He discovered from the Safety Director at USMX, Ken Gubler. that USMX basically had nothing
to do with Blattner's safety program and that Blattner was responsible for the safety of its
employees and those ofICI in the pit. Id.; Tr. 29-30. Cain consulted with MSHA Supervisory
Mine Inspector Paul Belanger. Tr. 30-31, 207. Belanger telephoned Yankee Project and learned
from USMX Manager of Operations Jim Kentopp that USMX was responsible for the mill and
the crushing but had no involvement in the daily supervision of Blattner's operation in the pit.
Tr. 214-15.
After consultation with other MSHA officials. Belanger determined that Blattner needed
to submit a legal identity report. Tr. 31. 207-08; Deposition of Vernon Gomez. MSHA
Administrator of Metal/Nonmetal Mines dated April 30, 1993. at 95 (incorporated into the record
at Tr. 556). When Blattner refused to comply, Inspector Cain issued a citation on September 14.
1992, for failure to file such a report. Tr. 31 ~ Gov't Ex. I. Under protest. Blattner completed a
legal identity report and the citation was terminated. Gov't Ex. 1. As a result, two legal identity
numbers, one covering the pit where Blattner operated and the other covering the milling and
crushing operations run by USMX, were assigned to the project. Tr. 59-61; Gov't Ex. I; R.
Ex. 1.
B.

Van Stone

The Van Stone Mine is an open pit lead and zinc mine owned by Equinox Resources, Inc.
("Equinox"). 16 FMSHRC at 1765, 1772. On November 19, 1990, Blattner contracted with
Equinox to perform services such as blasting, loading and hauling of ore and waste materials. 16
FMSHRC at 1765; J. Ex. 2, at 2. Blattner retained a subcontractor, Roundup Powder, for drilling
and blasting. 16 FMSHRC at 1765.
After an MSHA staff meeting where the subject ofBlattner's activities was discussed,
MSHA Supervisory Inspector Collin Galloway asked an inspector to investigate Blattner's
responsibilities at the mine. Id at 1772. The inspector reported that Blattner was in charge of
mining operations in the pit and that Equinox was running the mill. Id.
Inspector Galloway informed Blattner that, because it was responsible for safety in the
pit, it needed to file a legal identity report. Id. When Blattner refused, he issued a citation. Id.
Blattner completed a legal identity report and the citation was terminated. Gov't Ex. 2. As a
result of Blattner's filing, the Van Stone Mine was assigned two separate mine identity numbers,
one for the pit and one for the mill. Tr. 137-38, 149.

1582

C.

Aurora Partnership

The Aurora Partnership Mine is an open pit, heap leach gold and silver mine owned by
·the Aurora Partnership ("Aurora"). 16 FMSHRC at 1766; Tr. 165. It consists of a pit, where the
ore is extracted, and. approximately a mile away. a mill for processing gold and silver from the
ore. Tr. 165-66, 176. On June 16, 1993, Blattner entered into a contract with Aurora to provide
services in the pit, including drilling, blasting. crushing, loading and hauling ore and non-ore
material, and preparing and maintaining haul roads and pit walls. 16 FMSHRC at 1766; J. Ex. 3,
at 4. Blattner subcontracted the drilling and blasting work to JCI and the crushing to Fisher
Industries. 16 FMSHRC at 1766.
Blattner took over the mining activities from Lost Dutchman Construction ("Lost
Dutchman"). which previously had submitted a form 2000-7 and was assigned a legal identity
number. 16 FMSHRC at 1772. Aurora was assigned a separate legal identity number for the
milling and leaching operation. Tr. 177.
On an inspection of Aurora in June 1993, Inspector Robert Morley learned that Blattner
might be replacing Lost Dutchman. Tr. 168-71. He informed Blattner's job superintendent, Bob
Cameron, that Blattner would need to fill out a report and assume Lost Dutchman's legal identity
number. Tr. 171 . Morley left a report for Blattner to complete. Tr. 172. On July 29, 1993,
Larry Turner, Senior Mine Engineer for Aurora, notified MSHA in writing that Blattner would
serve as the prime contractor for mining activity. 16 FM SH RC at 1772. Cameron also informed
Morley that, as of August 2, Blattner would be mining the property. Tr. 171. On September 2,
Morley visited the mine, learned that Blattner had not filed a report, and issued Blattner a
citation. 16 FMSHRC at 1772; Tr. 171; Gov't Ex. 3. Under protest, Blattner completed a legal
identity report and assumed Lost Dutchman's·identity number. Tr. 177, 193-94; Gov't Ex. 3.
Blattner filed a notice of contest disputing the citation.
The three proceedings were consolidated for trial. The only issue before the judge was
whether Blattner was required to file a legal identity report under section 41.20. 16 FMSHRC at
1763. After an evidentiary hearing, the judge found that Blattner "exercised direct supervision
and control over the ore extraction process and the health and safety of the miners so involved" at
the three mines. Id at 1771. In concluding that Blattner qualified as an operator obliged to
complete a legal identity report, the judge reasoned that "requiring Blattner to comply with
[section 41.20] directly promotes the safety goals of the Act." Id at 1768, 177 l. The judge
affirmed the Secretary's proposed penalties of $50 for each of the two civil penalty proceedings
and dismissed Blattner's contest. Id at 1777.
..
.·

1583

II.
Disposition
Blattner does not dispute that it is an operator under the Act. B. Br. at 14. Rather,
relying on MSHA 's Enforcement Policy and Guidelines for Independent Contractors. 45 Fed.
Reg. 44,494, 44,497, 44,498 (1980) ('"Enforcement Guidelines'') and Part 45 of MSHA 's
Program Policy Manual ("PPM"), Blattner maintains that, under the regulatory scherne, it is only
required to submit information required of independent contractors. Id at 8, 11-14. 23-27.
Blattner contends that, because it is neither a ''designated independent contractor'' under 30
C.F.R. § 41. l (a), or a ''production-operator'" under 30 C.F.R. § 45.2(d). it cannot be required to
file a legal identity report. Id. at 9-11, 16-23. Blattner further argues that MSHA's decision to
require independent contractors to file operator reports constitutes a m~jor policy change and. as
such, is invalid because the change was not implemented pursuant to proper rulemaking
procedures. Id. at 27-32.
The Secretary asserts that his interpretation of his own implementing regulations should
be given deference. S. Br. at 11-12. The Secretary also argues that Blattner meets the definition
of operator in section 4'1,.1 (a), by its plain terms, because it (I) "control(led] or supervise[d]" the
three mines and (2) quallfied as a "designated independent contractor." Id. at 14-15 & n.3. The
Secretary contends that substantial evidence supports the judge's finding that Blattner was a
production-operator at each of the three mines. Id. at 27-28. According to the Secretary, the
Enforcement Guidelines and the PPM are non-binding and specifically provide MSHA with the
discretion to require independent contractors to file operator identity reports. Id. at 17-26. The
Secretary maintains that the decision to require Blattner to fi le legal identity reports reflects his
longstanding interpretation of the Part 41 reporting requirements and does not constitute a
substantive rule subject to rulemaking requirements. Id. at 33-34. The Secretary further argues
that he cannot be estopped from acting on a violation even if he did not cite an identical
condition in the past. Id. at 34-35.
1

Section 109(d) of the Mine Act provides that "[eJach operator of a ... mine subject to
this chapter shall file with the Secretary the name and address of such mine and the name and
address of the person who controls or operates the mine." 30 U.S.C. § 819(d). Section 3(d)
defines an operator as "any owner, lessee, or other person who operates, controls, or supervises a
coal or other mine or any independent contractor performing services or construction at such
mine." 30 U.S.C. § 802(d). Section 103(h) further authorizes the Secretary to require an
operator to provide information and reports as are necessary to the Secretary to administer the
Mine Act. 30 U.S.C. § 813(h).
The Secretary's implementing regulations mirror the statutory provisions. Section 41 .20
provides that "[eJach operator ... shall file notification of legal identity ... by properly
completing, mailing, or otherwise delivering form 2000-7 'legal identity report."' An operator is
defined in section 41.l(a) as "[1] any owner, lessee, or other person who operates, controls, or

1584

supervises a coal or other mine or [2] any designated independent contractor performing services
or construction at such mine."
Based on Blattner's status as an operator under the plain terms of section 41 . l (a), we
conclude that the Secretary properly cited Blattner for failing to file an operator's legal identity
report under section 4 l .20.5 Blattner qualifies as a ''person" who operates, controls, or supervises
a coal or other mine'' within the meaning of section 41.1 (a). Further, substantial evidence7
supports the judge's determination that "Blattner exercised direct supervision and control over
the ore extraction process and the health and safety of the miners so invo lved." 16 FMSHRC at
1771. The three MSHA inspectors who issued the citations testified that Blattner supervised and
was responsible for safety in the pits of the three mines. Tr. 37-39. 126. 128, 135-36, 175-76,
188-90. Blattner witnesses also testified that Blattner supervised. trained and directed its
employees and subcontractors in the pit areas. Tr. 430-31. 520-21. 544-47. Blattner had its own
equipment, which it maintained. Tr. 37. Blattner played a predominant role in the pits. As
former Senior Mine Engineer at Aurora. Larry Turner, testified. Blcfttncr had 45 to 50 employees.
including subcontractor employees, in the pit whereas Aurora had only a small force. Tr. 26364. He also testified that Blattner ran its own safety program and performed supervision in the
pit. Tr. 262-63, 266; Gov't Ex. 8. The contracts between Blattner and the owners specify that
Blattner was to supervise the work it had contracted to perform. J. Ex. I, at 3-4; J. Ex. 2, at A15; J. Ex. 3, at 8. The record showed that Blattner was responsible for administering safety
programs in the pits. Tr. 37-38. 130, 262. 430-32, 523-24. In addition, Blattner hired, directly

5

Because Blattner meets the definition of an operator under the first clause of section
41. l, the Commission does not reach the question of whether Blattner is also a "designated
independent contractor" under the second clause of section 41.1 (a).
6

30 C.F.R. § 41.1 (b) defines "person" as "any individual, sole proprietor, partnership,
association, corporation, firm, subsidiary of a corporation, or other organization."
7

The Commission is bound by the terms of the Mine Act to apply the substantial
evidence test when reviewing an administrative law judge's factual determinations. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion." Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (November 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). While we do not lightly overturn ajudge's factual findings
and credibility resolutions, neither are we bound to affirm such determinations if only slight or
dubious evidence is present to support them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB,
732 F.2d 1288, 1293 (6th Cir. 1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255,
1263 (7th Cir. 1980). We .are guided by the settled principle that, in reviewing the whole record,
an appellate tribunal must also consider anything in the record that "fairly detracts" from the
weight of the evidence that supports a challenged finding. Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951).

1585

. . .. - ....... .. . . .. . .
~

paid, and was responsible for subcontractors who performed blasting and drilling in the three
mines as well as crushing at Aurora. Tr. 38, 431-32, 437, 523-24, 544-47; Gov't Ex. 8.8
We reject Blattner' s contention, as did the judge, that it cannot be both an independent
contractor under Part 45 and an operator under the reporting requirements of section 41.20 . See
16 FMSHRC at 1768-70. Nothing in the language of the Part 41 and Part 45 regulations states
that the coverage in each provision is mutually exclusive. The Commission has recognized that
an entity may be both an operator and an independent contractor. Joy Technologies Inc. - Coal
Field Operations. 17 FMSHRC 1303, 1306-09 (August 1995) ~ Lang Brothers. Inc.. I 4 FMSHRC
413, 419-20 (September 1991) (published March I 992). See also Ass ·11 <?/Bit11111ino11s
. Contractors v. Andrus. 581 F.2d 853. 861-62 (D.C. Cir. 1978) (independent contractor qualifies
as an operator under the Coal Act). Thus, the fact that Blattner tiled an independent contractor
report under section 45.3 did not relieve it from filing an operator report under section 41 .1(a).
We do not reach Blattner' s argument that it is not a production-operator under section 45.2(d)
and therefore does not have to file a legal identity report. Blattncr' s status under Part 45 is not
determinative of whether it must file an operator report under Part 4 I.''
Blattner's conteptions that the citations are invalid because they arc contrary to MSHA 's
PPM and Enforcement G.uidelines are also unpersuasive. As the judge correctly pointed out, the
Enforcement Guidelines and the PPM are not binding on the Secretary or the Commission. King
Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981) ("[T)he Manual's 'instructions are not
officially promulgated and do not prescribe rules of law binding upon [this Commission). ' .. .
[T]he express language of a statute or regulation 'unquestionably controls ' over material like a
.. . manual.") (citations omitted); Bulk Transportation Services. Inc. , 13 FMSHRC 1354, 1360
(September 1991). In Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (D.C . Cir.
1986), the court held that the specific Enforcement Guidelines at issue here were non-binding on
the Secretary because they were general statements of policy, "replete with indications that the
Secretary retained his discretion to cite production-operators as he saw fit." Moreover, the
Enforcement Guidelines and the PPM give the Secretary the discretion to require an independent

8

Blattner's argument that it did not exercise "prime and overall responsibility" over the
properties, see B. Br. at 19-20, is unpersuasive. Section 41.1 (a) does not require an operator to
have overall responsibility for the mine property.
·
9

We are also unmoved by Blattner's argument that confusion will be created by
assigning multiple mine numbers to one property. The Fourth Circuit long ago recognized under
the Coal Act that there can be multiple mines at a single site. Bituminous Coal Operarors ' Ass 'n
v. Secretary of Interior, 547 F.2d 240, 246 (4th Cir. 1977). Congress specifically approved
Bituminous Coal Operators' Ass 'n in enacting the Mine Act. S. Rep. No. 181, 95th Cong., 1st
Sess. 14 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2d Sess., Legislative History ofthe Federal Mine Safety and Health Act of I977, at
602 (1978).

1586

contractor to file an operator report. The preface to the Enforcement Guidelines states that they
are for the guidance ofMSHA inspectors in making their "individual enforcement decisions." 45
Fed. Reg. at 44,495. The guidelines caution that nothing in them is meant to alter the basic
compliance responsibilities of production-operators. 45 Fed. Reg. at 44,497. Additionally, the
PPM provides that "[m]illing operations that receive ores from an underground or a surface mine
on the same property may be assigned a separate identification number or may share the same
identification number as the mine.'' Gov't Ex. 6 (PPM) at I.
Thus. we also reject Blattner's additional contention that, because the citations represent a
change in MSHA rule and policy, the Secretary must proceed by notice and comment
rulemaking. Since section 41.20 applies to Blattner by its clear terms, rulemaking was not
needed. When a governmental action "restates an obligation imposed by ... regulations," it is
not subject to notice and comment rulcmaking. Stole <?f Indiana. Dept. <?fPuhlic We(fare v.
,)'u//ivan. 934 F.2d 853, 856 (7th Cir. 1991 ). Moreover. as a factual matter. substantial evidence
supports the judge's rejection of Blattner's claim that the citations signified a change in MSHA
policy. See 16 FMSHRC at 1777. The record contains evidence that MSHA required a number
of other contractors to file such a report prior to 1992, the year in which Blattner claims the
policy changed. Tr. 203, 207; Gomez Dep. at 80; Gov't Ex. 6 (PPM) at 9 (dated July l, 1988)
(independent contractor-classified as a mine operator is required to file legal identity report).
Although some conflicting testimony on this point exists (see Tr. 142-43, 182-83), the judge
made a credibility determination that no change in policy occurred; such determinations are not
to be overturned lightly and are entitled to great weight. Jn Re: Contests <?f Re!>pirable Dust
Sample Alteration Citations. 17 FMSHRC 1819. 1878 (November 1995).
We also reject Blattner's argument that the Secretary abused his discretion in citing it for
a violation of section 41.20. "The Commission and courts have recognized that the Secretary has
wide enforcement discretion," which is reviewable by the Commission. W-P Coal Co., 16
FMSHRC 1407, .1411(July1994), (citing Bulk Tram1Jortation, 13 FMSHRC at 1360-61);
Consolidation Coal Co. , I I FMSHRC 1439, 1443 (August 1989); Brock v. Cathedral Bluff~,
796 F.2d at 538. In this case, we find no basis to conclude that the Secretary abused his
discretion.
Blattner argues, in effect, that the Secretary should be estopped from enforcing the
regulation because the Secretary had not required Blattner and other similarly situated
contractors to file such reports in the past. As we have already noted, the judge determined that
the Secretary required other contractors to file such reports in the past, and we see no basis for
overturning that finding.
.
Accordingly, we conclude that Blattner plainly met the regulatory definition of operator
and that the Secretary properly required Blattner to file an operator legal identity report.

1587

,:

~:

.<·
;-

III.
Conclusion
For the reasons set forth above, we affirm the judge's determination that Blattner violated
section 41.20 by failing to file a legal identity report and accordingly affirm the penalties
assessed as well as the dismissal of the contest proceeding.

\

Marc Lincoln Marks, Commissioner

1588

Distribution

Michael S. Lattier, Esq.
Gough, Shanahan, Johnson & Waterman
3 3 South Last Chance Gulch
Helena, MT 59601
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge John Morris (retired)
Federal Mine Safety & Health Review Commission
1244 Speer Blvd., Suite 280
Denver, CO 802-4

1589

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

September 24, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 96-318-M
A.C. No. I 0-00402-05551

v.

KINROSS DeLAMAR MINING COMPANY

BEFORE: Jordan, Cpairman; Marks and Riley, Commissioners

ORPER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 80 I et seq. ( 1994) ("Mine Act"). On August 26, 1996, the Commission received from Kinross
DeLamar Mining Company ("Kinross") a request to reopen a penalty assessment that had
become a final order of the Commission pursuant to section IOS(a) of the Mine Act, 30 U.S.C.
§ 8 l 5(a). 1 The Secretary of Labor filed a response, indicating that he does not oppose the motion
for relief filed by Kinross.
Under section I OS(a) of the Mine Act an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

I On September 6, Kinross filed an amended motion, identical to its original request
except that it contains an express reference to a supporting affidavit and an original copy of that
affidavit, which is attached to its request as Exhibit 3.

1590

Kinross states that it mailed a timely request for a hearing (''Green Card") to the
Department of Labor's Mine Safety and Health Administration ("MSHA"), thirty days after it
received a Proposed Assessment Form mailed to its mine by MSHA. It asserts that, because of
the inaccessible location of its mine, its does not receive regular mail deliveries from the nearest
U.S. Post Office, but must make arrangements to pick up and deliver its mail, resulting in a oneday delay in the actual receipt of its mail. K. Mot. at 1-2. Kinross therefore explains that,
although the notice of proposed penalty was delivered to the post office on June 24, 1996, it did
not receive it until June 25. Id. at 2, 4. Kinross further asserts that it mailed and postmarked its
Green Card on July 25, but that the postmaster over-stamped, or re-postmarked, the Green Card
for July 26. id. at 2-3, 5. Attached as exhibits to Kinross' motion are copies of the certified mail
receipt accompanying the notice of proposed assessment, Kinross' Green Card, and an affidavit
by Mary Barraco, Kinross' Superintendent of Safety and Environmental Services.
The Commission has held that, in appropriate circumstances and pursuant to
Fed. R. Civ. P. 60(b) ("Rule 60(b)"), it possesses jurisdiction to reopen uncontested assessments
that have become final under section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782,
786-89 (May 1993); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (September 1994).
The Commission has observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Preparation
Services, Inc., 17 FMSHRC 1529, 1530 (September 1995). In accordance with Rule 60(b)(I),
the Commission has previously afforded a party relief from a final order of the Commission on
the basis of inadvertence or mistake. See General Chemical Corp., 18 FMSHRC 704, 705 (May
1996). It appears from the record that Kinross had a reasonable basis for believing that it timely
mailed its Green Card. Even assuming the Green Card was not in fact timely mailed, the
untimeliness could be properly found to be attributable to "inadvertence" or "mistake" within the
meaning of Rule 60(b)(I) -- due to the unique mail service situation at the Kinross mine.
Accordingly, in the interest of justice, we grant Kinross' unopposed request for relief and reopen

1591

the penalty assessment that became a final order of the Commission. This case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

1592

•

Distribution

Ruth L. Ramsey, Esq.
Patton Boggs, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037-1350
Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Douglas N. White, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203

1593

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

September 24 , 1996

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

Docket No. KENT 96-349
A.C. No. 15-16454-03575

V.

Docket No. KENT 96-350
A.C. No. 15-16454-03576

GREEN COAL COMPANY, INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On August 26, 1996, the Commission received from Green
Coal Company, Inc. ("Green Coal") a request seeking to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On September 10, the Commission received the Secretary of Labor' s response,
opposing the request.
Under section 105(a) of the Mine Act, 30 U.S.C. § 815(a), an operator has 30 days
following receipt of the Secretary of Labor's proposed penalty assessment within which to notify
the Secretary that it wishes to contest the proposed penalty. If the operator fails to notify the
Secretary, the proposed penalty assessment is deeme,d a final order of the Commission. 30
U.S.C. § 815(a).
The only reasons offered by Green Coal for the late filing of its hearing requests are that
the company has been involved in bankruptcy proceedings, and that it is attempting to cut costs
in order to save the mine operation and employee jobs. Section 11 O(i) of the Mine Act includes,
among other criteria to be considered by the Commission in assessing penalties, "the
appropriateness of such penalty to the size of the business," and "the effect on the operator's
ability to stay in business:· 30 U.S.C. § 820(i). The Act nonetheless imposes certain burdens

1594

:._

and responsibilities on operators, perhaps the least of which is to sign the "Green Card"
accompanying a citation and maiJ it to the address printed on the card in order to perfect their due
process right to a hearing. Green Coal failed to timely file "Green Card" notices of contest
challenging the proposed penalty assessments by the Department of Labor's Mine Safety and
Health Administration ("MSHA").
The Commission has held that, in appropriate circumstances and pursuant to
Fed. R. Civ. P. 60(b) ("Rule 60(b)"), it possesses jurisdiction to reopen uncontested assessments
that have become final under section 105(a). Jim Walter Resources, Inc. , 15 FMSHRC 782,
786-89 (May 1993); Rocky Hollow Coal Co. , 16 FMSHRC 1931, 1932 (September 1994). Relief
from a final order is available in circumstances such as a party's mistake, inadvertence, or
excusable neglect. Requests to reopen under Rule 60(b) must be made within a reasonable time
and are committed to the sound discreti on of the j udicial tribunal in which relief is sought.
Randa/Iv. Merrill Lynch, 820 F.2d 13 17, 1320 (D.C. Cir. 1987), cert. denied, 484 U.S. 1027
( 1988). See also Tolbert v. Chaney Creek Coal Corp., 12 FMSHRC 615, 619 n.1 (April 1990).
Rule 60(b) is "the mechanism by which courts temper the finality of judgments with the necessity
to distribute justice" and "is a tool which trial courts are to use sparingly ... ." Randall, 820 F.2d
at 1322; Pit, 16 FMSHRC 2033, 2034 (October 1994).
Green Coal has offered no satisfactory explanation for its failure to timely file hearing
requests in these cases. The mere fact that it is involved in bankruptcy proceedings, or in cutting
costs, does not, in itself, provide a basis for relief under Rule 60(b). Moreover, Green Coal has
failed to provide any explanation of how its involvement in bankruptcy proceedings or costcutting contributed to the late submission of its hearing requests. Thus, Green Coal has failed to
set forth grounds establishing that Rule 60(b) relief is appropriate for the uncontested
assessments that became final by operation of section 1OS(a) of the Mine Act. See Tanglewood
Energy, Inc. , 17 FMSHRC 1105, 1107 (July 199?); North Star Contractors, Inc., 17 FMSHRC
886, 887 (June 1995); Pit, 16 FMSHRC at 2034. Accordingly , we conclude that Green Coal's
request does not justify relief under Rule 60(b).

1595

For the foregoing reasons, Green Coal's request for relief is denied.

Marc Lincoln Marks, Commissioner

•

ames C. Riley, Commissioner

Distribution
James E. Curtis, Safety Director
Green Coal Company, Inc.
6288 Chaney Road
Spottsville, KY 42458

·:. •

Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Douglas N. White, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203

1596

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

September 30, 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 94-381

v.

CANNELTON INDUSTRIES, INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEY A 95 -1 00

V.

CHARLES PATTERSON, employed by
CANNELTON INDUSTRIES, INC.
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEY A 95-101

GEORGE RICHARDSON, employed by
CANNELTON INDUSTRIES, INC.
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1
ORDER
BY: Jordan, Chairman; and Riley, Commissioner
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) (''Mine Act"). On April 29, 1996, Administrative Law

1

Commissioner Holen participated in-the consideration of this matter, but her term
expired before issuance of this order. Pursuant to section 113(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been designated
to exercise the powers of the Commission.

1597

Judge Todd Hodgdon issued a decision in which he concluded that Cannelton Industries, Inc.
("Cannelton") violated 30 C.F.R. ·§ 75.400 by failing to clean up an accumulation of coal under a
conveyor belt, that the violation was significant and substantial (''S&S") and the result of
unwarrantable failure, and that Charles Patterson and George Richardson, employed by
Cannelton, knowingly authorized the violation by failing to have the accumulation cleaned up.
18 FMSHRC 651, 654-61 (April 1996) (ALJ). The judge ordered Cannelton, Patterson, and
Richardson to pay civil penalties of $3,600, $500, and $500, respectively. 18 FMSHRC at 66162. The Commission granted the petition for discretionary review filed by counsel for
Cannelton, Patterson, and Richardson, challenging the judge's determinations.
On July 15, 1996, counsel for Cannelton, Patterson, and Richardson filed a motion to
remand and reopen the record and motion to stay review proceedings. Counsel explains that the
movants' counsel at the hearing, an inexperienced attorney within the same law firm, failed to
present certain relevant evidence because its existence "slipped his mind." Mot. at 5 & Att. B.
He asserts the failure to present the evidence was not the result of culpable conduct by the
movants and the evidence establishes a defense that would have altered the outcome of the case
had it been admitted. Id. at 9. Attached to the motion are photocopies of the evidence and the
affidavit of the hearing counsel. Atts. A & B. Counsel requests that, pursuant to Fed. R. Civ. P.
60(b),2 the Commission remand the matter to the judge, order the record to be reopened for the
taking of additional evidence, and stay review proceedings pending the judge's decision on
remand. 3 Mot. at 9-10. He asserts that the Secretary of Labor would not be prejudiced by the
granting of the motion. Id. at 9.4
·
On July 18, 1996, the Secretary filed an opposition to the motion and a motion to strike.
He argues that the movants have not established a basis for relief under Rule 60(b) and that he

2

Rule 60(b) states, in part:
On motion and upon such terms as are just. the court may relieve a
party or his legal representative from a final judgment, order, or
proceeding for the following reasons: ( 1) mistake, inadvertence,
surprise, or excusable neglect; ... or (6) any other reason justifying
relief from the operation of the judgment.

Counsel also requests that briefing be sta7ed pending the Commission's consideration
of the motion. Mot. at 3. On July 17, 1996, the Commission issued an order staying the filing of
briefs until further notice.
4

On July 18, 1996, counsel filed a supplemental statement to the motion, contending that
the judge incorrectly stated the date on which th~ citation was issued and that, in view of the
correct date, the additional evidence is relevant to whether Cannelton had notice of the
accumulation. Supp. Statement at 1.

1598

would be prejudiced by the granting of relief and requests that the Commission deny the motion.
S. Opp. at 4-13. In addition, the Secretary requests that the evidentiary materi~I attached to the
motion and all references thereto be stricken from the record because it was not properly
introduced. Id. at 13-14.
On August 2, 1996, counsel for Cannelton, Patterson, and Richardson filed an opposition
to the Secretary' s motion to strike. Counsel argues that submission of the evidentiary material is
necessary to justify reopening the record and requests that the Commission deny the motion to
strike. C. Opp. at 3-5.
A final Commission judgment or order may be reopened under Rule 60(b)( l) & (6) in
circumstances such as mistake, inadvertence, excusable neglect, or other reasons justifying relief.
29 C.F.R. § 2700.l (b) (Federal Rules of Civil Procedure apply '·so far as practicable" in the
absence of applicable Commission rules). Rule 60(b) motions are committed to the sound
discretion of the judicial tribunal in which relief is sought. Randall v. Merrill Lynch, 820 F.2d
1317, 1320 (D.C. Cir. 1987), cert. den;ed, 484 U.S. 1027 (1988). Rule 60(b) is "the mechanism
by which courts temper the finality of judgments with the necessity to distribute justice" and "is
a tool which trial courts are to use sparingly. ... " Randall, 820 F.2d at 1322. See also Tolbert v.
Chaney Creek Coal Corp., 12 FMSHRC 615, 619 n. l (April 1990).
In Midwest Minerals, Inc., 12 FMSHRC 13 75 (July 1990), the Commission denied an
operator's motion to remand and reopen the record for the taking of additional evidence where its
non-attorney representative failed to introduce evidence relevant to its defense. The Commission
reasoned:
Because the adequacy of a party's representation at hearing is linked to the
party's choice of its representative, we must look askance at any request that Rule
60(b) relief be granted because the party's chosen representative is claimed to
have performed ineffectually at the hearing before the judge resulting in an
adverse decision. Routinely granting such relief would . . . unfairly provide a
losing party "a second turn at bat..,

Id. at 13 77. Similarly, in this case, the attorney' s failure to present evidence at the hearing does
not provide a basis for reopening the record .
·
In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993),
the Supreme Court reaffirmed the principle that ''clients must be held accountable for the acts
and omissions of their attorneys." Id. at 396 (citing Link~'· Wabash R.R., 370 U.S. 626, 633-34
(1962), United States v. Boyle, 469 U.S. 241 (1985)). The Court further explained that whether a
party's neglect is excusable is an equitable determination in which consideration should be given
to " all relevant circumstances surrounding the party's omission." Id. at 395. The Court
emphasized that the focus is upon the neglect of both the clients and their counsel. Id. at 397.
Here, counsel for Cannelton, Patterson, and Richardson asserts that' the movants had provided the

1599

"··

evidentiary material to the attorney, who was in possession of it during the hearing. Mot. at 5 &
Att. B. Thus, knowledge of the evidentiary material can be charged upon both the movants and
their attorney.
We conclude that movants have not met the criteria for relief under Rule 60(b). Although
it is unfortunate that the evidentiary material "slipped the attorney's mind," the movants must be
held accountable for the failure of counsel. Accordingly, we deny the motion to remand and
reopen the record and the motion to stay review proceedings.
With regard to the motion to strike, the Secretary points out that the evidentiary material
in question was not part of the record before the judge and was not subject to cross-examination
or rebuttal. S. Opp. at 13. He correctly asserts that the Commission's consideration on review of
this extra-record evidentiary material would contravene section 113(d)(2)(C) of the Mine Act, 30
U.S.C. § 823(d)(2)(C). 5 S. Opp. at 13-14. Therefore, we grant the motion to strike the
evidentiary material and references to it from the motion insofar as it addresses the merits of the
case. See Midwest , 12 FMSHRC at 1377 n.3.
Cannelton, Patterson, and Richardson are hereby ordered to file opening briefs within 30
days of the date of this order. Other briefs shall be filed in accordance with 29 C.F.R.
§ 2700.75(a).

5

Section 1l3(d)(2)(C) states, in part:
For the purpose of review by the Commission ... the
record shall include: (i) all matters constituting the record upon
which the decision of the ad·ministrative law judge was based; (ii)
the rulings upon proposed findings and conclusions; (iii) the
decision of the administrative law judge; (iv) the petition or
petitions for discretionary review, responses thereto, and the
Commission's order for review; and (v) briefs filed on review. No
other material shall be considered by the Commission upon review.

1600

Commissioner Marks. concurring in part and dissenting in part:
With respect to the Secretary's motion to strike, I concur with the disposition of the
majority to grant the motion.
However, I find that the circumstances supporting Cannelton' s motions to remand and
reopen the record and stay review of these proceedings sufficiently demonstrate excusable
neglect under Fed. R. Civ. P. 60(b)(l). Accordingly, I would grant Cannelton's motions.

Marc Lincoln Marks, Commissioner

1601

Distribution

David Hardy. Esq.
Jackson & KeJly
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322

Y oora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203

1602

ADMINISTRATIVE LAW JUDGE DECISIONS

.·:

;.

·.·

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

SEP

5 1996

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

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 95-29-M
A.C. No. 03-01640-05511

v.
Docket No. CENT 95-30-M
A.C. No. 03-01640 - 05512

REB ENTERPRISES INCORPORATED,
Respondent

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-239-M
A.C. No. 03-01640-05517 A
REB Enterprises Inc.

HAROLD MILLER,
Employed by REB ENTERPRISES
INC.
Respondent
I

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-240-M
A.C. No. 03-01640-05518 A
REB Enterprises Inc.

RICHARD E. BERRY,
Employed by REB ENTERPRISES
INC. I
Respondent

1603

· DECISION

Appearances:

Daniel J. Haupt, Mine Safety and Health
Administration, U.S. Department of Labor, Dallas,
Texas, and Jack F. Ostrander, Esq., Office of the
Solicitor, U.S. Department of Labor,
Dallas, Texas, for the Petitioner;
James E. Crouch, Esq., Cypert, Crouch, Clark &
Harwell, Springdale, Arkansas, for the Respondent.

Before:

Judge Weisberger
Statement of the Case

At issue in these consolidated cases are citations
and orders issued by the Secretary ("Petitioner") to REB
Enterprises Inc., ("REB"), alleging violations of various
mandatory safety standards set forth in Title 30 of the Code
of Federal Regulations. Also at issue are citations issued to
Harold Miller, and Richard E . Berry, alleging violations of
Section llO(c) of the Federal Mine Safety and Health Act of 1977
("the Act" ) . Pursuant to notice, a hearing was held in
Fayetteville, Arkansas in June 11, 1996. REB filed a post-trial
brief on July 17, 1996. Petitioner's post-hearing brief was
filed on August 5, 1996. On August 14, 1996, REB's response to
petitioner's post-hearing brief was filed.
I.

Jurisdiction

REB operates a limestone quarry. As a part of the mining
operation, overburden is first removed exposing limestone rock
which is then blasted. The rock is then further crushed,
stockpiled, and subsequently sold to customers . There is no
evidence that any REB product is sold or used outside the state
of Arkansas.
It is the position of REB and the individual Respondents,
Miller, and Berry, that REB's operation is not subject to the
Act's jurisdiction.
Section 4 of the Act provides that each mine ~ . . the
operations or products of which affect commerce," shall be
subject to the Act.

1604

In Jerry Ike Harless Towing. Inc .. and Harless. ·Inc.,
(16 FMSHRC 683 (April 11, 1984)), the Commission analyzed the
scope of the Commerce Clause of the Constitution as follows:
The Commerce Clause of the Constitution has been
broadly construed for over 50 years. Commercial
activity that is purely intrastate in character may be
regulated by Congress under the Commerce Clause, where
the activity, combined with like conduct by others
similarly situated, affects commerce among the states.
Fry y. United States, 421 U.S. 542, 547 (1975); Wickard
y. Filburn 317 U.S. 111 (1942) (growing wheat solely
for consumption on the farm on which it is grown
affects interstate commerce} . Congress intended to
exercise its authority to regulate interstate commerce
to the "maximum extent feasible" when it enacted
Section 4 or the Mine Act. Marshall y. Kraynak. 604
F.2d 231. 232 (3d Cir. 1979), ~.denied 444 U.S.
1014 (1980); United States y. Lake, 985 F.2d 265, 26769 (6th Cir. 1993). In ~' the mine operator sold
all its coal locally and purchased mining supplies from
a local dealer. 985 F.2d at 269. Nevertheless, the
court held that the operator was engaged in interstate
commerce because "such small scale efforts, when
combined w~th others, could influence interstate coal
pricing and demand." ~. Harless,supra at 686.
It is significant to note that a product mine at the quarry
at issue, SP-2, which is used as a highway road base, was sold to
a contractor who used the product in construction work performed
on Arkansas state highway No. 412, which runs West from Arkansas,
and crosses over and continues into the state of Oklahoma. Also,
a Case bulldozer which was in operation at the mine on August 16,
1994, was manufactured in Racine, .Wisconsin i.e., outside the
state of Arkansas. Given these uncontested facts, and
considering the broad principles enunciated by the Commission in
Harless Towing, ~a, and based on the authority of the sixth
circuit in l.ia.k.e., supra, I am constrained to find that REB's
operation affected interstate commerce, and hence was subject to
the Act's jurisdiction.

1605

II.

Citation No. 4327635.

At the hearing, Petitioner moved to withdraw this citation
due to the lack of evidence to support it. Based upon
Petitioner's representations, the motion was granted.
III. Citation No. 4327775.
James Clifton Enochs, an MSHA inspector, testified that on
August 16, 1994, he reviewed REB's records. According to Enochs,
the records indicated that the most recent test for continuity
and resistance of the grounding system, was on April 8, 1993.
According to Enochs there was no record of any test subsequent to
that date and prior to his inspection on August 16, 1994. Enochs
issued a Citation alleging a violation of 30 C.F.R. § 57.12028
which provides as follows:
"Continuity and resistance of
grounding systems shall be tested immediately after installation,
repair, and modification; and annually thereaftei:. A record of
the resistance · measured during the most recent test shall be made
available on a request by the Secretary or his duly authorized
representative."
(Emphasis added . )
Based upon the uncontradicted testimony of Enochs, I find
that the most recent test of the continuity and resistance of the
grounding system recorded by REB was April 8, 1993. I reject
REB's argument that, in essence, there was no violation of
Section 57.12028, supra, since it had until the end of the
calendar year 1994 to perform and record the relevant testing.
Section 57.12028, supra, requires continuity testing
"annually"' after installation.
Websters Third New
International Dictionary, (1986 Edition) ("Webster's") defines
the word "annually" when used as an adjective as follows "***2:
. . . done, or acted upon every year or once a year . • . . " "Year"
is defined in Webster's, as relevant, as follows: "c: a period of
time equal to one year on the Gr~gorian calendar but beginning at
a different time." In contrast, Webster's defines a "calendar
year" as follows: "a period of a year beginning and ending with
the dates which are convention.a lly accepted as marking the
beginning and end of a numbered year." Hence, applying the
common meaning of the adjective ''annually", I find that Section
57.12028 ~upra, by its terms, is not satisfied by performing and
recording the relevant test anytime within a calender year. I

1606

conclude that Section 57.12028, supra, is not complied with if
the relevant test was not performed and recorded within a year
subsequent to the last such test. Since the last recorded test
had been recorded more than twelve months prior to the date of
the inspection, August 16,1994, I find that Section 57.12028
supra, has been violated.
I find that a penalty of $50 is
appropriate .
.ljl .

Citation No. 4327776 .
A.

Violation of 30 C.F.R.

§

57.14131(a)

Enochs testified that on August 16, 1994, as part of his
inspection, he went to the pit along with Ray King, who was the
foreman at the time. Enochs walked over to a R-20 Euclid haul
truck to introduce himself to the driver. He climbed up to the
running board and noticed that the driver, Ron Alexander, did not
have his seat belt on. Enochs issued a Citation alleging a
violation of 30 C.F . R. § 57.1413l(a) which provides as follows:
"Seat belts shall be provided and worn in haulage trucks".
Respondent did not impeach or contradict the testimony of
Enochs regarding his observations. Accordingly his testimony in
this regard is accepted. Based on his testimony, I find that on
August 16, 1994, the driver of the R-20 Euclid haul truck was not
wearing his seat belt.
I thus conclude that REB violated
Section 57.l4131(a), ~upra,
B.

Significant and Substantial

A "significant and substantial" violation is described in
section 104(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 other mine safety or health hazard."
30 C . F . R. § 814(d) (1). A violatipn is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division.
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

1607

In Mathies Coal Co . , 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard - -that is, a measure of danger to safetycontributed 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 St ates Steel Mining Company. Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows :
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U. S . Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S . Steel Mining Company. Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company.
~., 6 FMSHRC 1573, 1574-75 (July 1984).
The truck at issue hauls material from the pit to the
crusher over the roadway which Enochs described as being
"somewhat rough" (Tr. 32). Accord1ng to Enochs the roadway is
mostly level but goes down an incline at the area of the crusher.
Enochs indicated that there are other haul trucks and equipment
operating in the area.
Enochs opined that should the truck overrun a berm, the
operator would be thrown from the vehicle and severely injured
because he was not wearing a seat belt. Also, Enochs opined that

·1608

should the truck run into another piece of equipment, the
operator would be thrown into the windshield, and could be
injured thereby. According to Enochs, there is constant spillage
on the road, and if the truck should run over a large boulder,
~it could throw the steering wheel, it could throw the unit
itself" (Tr. 57). He opined that, based upon his experience, the
occurrence of an accident resulting in the truck being wrecked is
quite possible. According to Enochs, thirty percent of
fatalities in t he mining industry involve haulage units. He
opined that should the truck roll over, the driver would most
likely suffer a fata l ity, as he did not have a seat belt on.
Enochs indicated that he investigated five or six situations in
which haul trucks had rolled over.
Richard E. Berry, the owner, principal stockholder, and
President of REB, indicated that REB has been operating a
limestone quarry at the location in issue since 1988. According
to Berry the distance from the pit to the crusher is
approximately a quarter of a mile. He testified that at the
crusher the roadway goes down a grade for about 100 feet, where
it flattens out for 700 to 800 feet, and then goes up a grade
that rises about thirty feet, and then becomes flat again . The
roadway is between sixty to seventy feet wide, but narrows down
to twenty feet for approximately 100 feet where the road goes up
a grade. Berry said that the trucks that are driven over the
roadway are about eight to nine feet wide, and generally pass one
another.
I find, that REB did violate a regulatory standard, i.e.,
Section 56.1413l{a) supra . I also find that this violation
contributed to the hazard of the operator of the haul truck being
injured should the truck collide with another vehicle or object,
or overtravel a berm. However, the record does not establish the
speed at which the haul truck regularly operates. There is no
evidence that there was any problem with the truck's brakes, or
that the truck had any other mecqanical malfunction. Further,
based upon the uncontradicted testimony of Berry, the roadway was
wide enough to safely accommodate two trucks traveling in
different directions. Although Enochs testified that the roadway
was "somewhat rough" and that spillages were common, he did not
prof fer any evidentiary facts based upon his observations to
support these conclusions.

1609

Based upon the above record, I find that it has not been
established that an injury producing event, i.e., the haul truck
in question colliding with another object with such force and
speed as to cause the driver to lose control of the truck, or to
dislodge the driver, was reasonably likely to have occurred.
I
thus find that the third element in Mathies supra, has not been
established. I find that it has not been established that the
violation was significant and substantial.
C.

Unwarrantable Failure

It is the Secretary's position that the violation herein
constituted an "unwarrantable failure". As such, it is incumbent
upon the Secretary to establish that REB's actions herein were
more than ordinary negligence, and reached the level of
aggravated conduct (Emery Mining~., 9 FMSHRC 1997 (1987)).
According t9 Enochs, a Mr. Hermstein, an MSHA inspector
informed him that-. an industrial assistance program handouts
concerning haulage were passed out to REB's supervisors, Ray
King, and a Mr. Goody. Enochs stated, in essence, that Hermstein
told him that he had spent three hours with King and Goody" ...
for the employees to make sure they preshift each unit, wear
their seat belts brakes, steering, the maj~r concerns" (sic)
{Tr. 18). He also indicated that " . . . King had been warned
by MSHA during the industrial assistance session on the seat belt
usage and how important it was. There was--seemed to be no
effort to enforce the seat belt law" (sic) (Tr. 33). According
to Enochs, when he asked the cited driver of the haul truck why
he had not been wearing a seat belt, he said that "nobody made a
big deal about it" {Tr. 34). Enochs indicated that King did not
say anything when the driver was cited, did not correct the
condition or tell the driver that he had to wear the belt.
Enochs said that King" ... seemed somewhat indifferent to the
whole situation" {Tr. 34). Enochs indicated that on the date of
the inspection, he went inside REB'.s office and did not see any
notices posted informing employees of the need and necessity to
wear seat belts.
According to Berry, a sign is posted outside the building
where employees check in, advising them of the need to wear seat
belts. He also testified that a notice was posted in the office

1610

advising employees of the need to wear seat belts. 1 I observed
Berry's demeanor, and found that his testimony on these points
was credible.
It is incumbent upon Petitioner to establish, by a
preponderance of the evidence, that the violation at issue
resulted from REB's aggravated conduct. Petitioner relies upon
the heresay testimony of Enochs that King had been warned by MSHA
personnel in an industrial assistance session regarding the use
of seat belts at REB's facility. Neither King nor the MSHA
personnel who allegedly imparted this information to King
testified on behalf of Petitioner. I find the testimony of
Enochs in this regard is inherently unreliable due to its heresay
nature, and cannot be relied upon to establish that King received
such a warning. Petitioner also relies upon an out of court
statement by the driver of the cited truck to Enochs that "nobody
made a big deal" out of the wearing of seat belts. This person
was not called upon by Petitioner to testify to establish this
point. I do not assign any probative value to Enochs' heresay
testimony as such testimony is inherently unreliable. I find
Enochs' testimony that, when cited, King did not provide much of
a response and "seemed indifferent", to be too subjective, and
thus not to be accorded any probative value. Further, I accept
the testimony of REB's witnesses regarding the information that
was posted on REB's premises concerning the use of seat belts.
For these reasons, I find that it has not been established that
the violation herein resulted from REB's unwarrantable failure.
D.

Penalty

I find that Petitioner has not established that REB's
negligence herein was more than moderate. I find that the driver
of the truck, who was not wearing a seat belt, could have been
seriously injured should the truck have been significa~tly jolted
upon hitting another object, or should it have overturned. I

This notice was admitted in evidence as Defendant's Exhibit
30, is dated April 1995. However, Harold Miller, a REB employee
who testified, and was found to be a credible witness on this
point, testified that he could not recall any differences between
the notice that was posted in the office on Aygust 16. 1994, and
Defendent's Exhibit 30.
1

1611

thus find that the violation herein was more than a moderate
level of gravity. Taking into account the balance of the factors
set forth in Section llO(i) of the Act, I find that a penalty of
$700 is appropriate for this violation.

y. Order No. 4327622. and Docket Nos. CENI 95-239-M ang
CENT 95-240-M.
A.

Violation of 30 C.F.R.

§

56.14131{g)

On August 16, 1994, Enochs, in the presence of King,
observed a Case bulldozer in operation at the top of the
highwall. According to Enochs, the bulldozer was approaching him
at an angle of approximately 45 degrees. Enochs estimated that
when he was about thirty or forty feet away from the bulldozer,
he noticed that the driver, Bill Jacobs, was not wearing a seat
belt. He said that it was "obvious" that the operator did not
have a seat belt on (Tr. 130). Enochs issued an Order alleging a
violation of 30 C.F.R . § 56.14130(g) which, in essence, requires
the wearing of seat belts.
Harold Miller, the lead man at the time, testified that he
was in the area when Enochs told Jacobs to put his seatbelt on.
Miller indicated that he could not tell if Jacobs was wearing a
seat belt . On cross examination Enochs indicated that a
photograph of the bulldozer in question taken subsequent to the
date of his inspection, (Defendant's Ex. 8) depicts a bulldozer
at the approximate angle that the bulldozer was at when cited by
him. He was unable to tell by looking at this photograph if the
driver was wearing a seat belt. Enochs was shown two other
pictures of a driver sitting in the bulldozer at issue
(Defendant's Exs. 7, and 28) and he was not able to tell if the
driver was wearing a seat belt.
REB has not offered any eyewitness testimony to directly
impeach or contradict Enochs' observation that Jacobs was not
wearing a seat belt. Specifically·, Miller's testimony that he
could not tell if Jacobs was wearing a belt when Enochs told the
latter to put his belt on, is insufficient to contradict Enochs'
testimony. The record does not establish that Miller observed
Jacobs from the same distance and direction as observed by
Enochs. Also, although Enochs could not tell whether the driver
depicted in REB's photographs was wearing a seat belt, there is

1612

no evidence that these photographs accurately depict the view
that Enochs would have seen from the specific vantage point that
he had on August 16, 1994, when he saw the bulldozer at issue and
cited it. Accordingly, I accept Enochs' testimony, and find that
Jacobs was not wearing a seat belt when cited . Hence, I find
that REB did violate Section 56.14130(g), supra.
B.

Significant and Substantial

According to Enochs, the violation should be characterized
as significant and substantial. He pointed out that he observed
tracks within five feet of the edge of the highwall. According
to Enochs, the highwall was eighty feet above the next level.
Enochs indicated that in normal operations, at times the blade of
the bulldozer "will catch on a hard rock area, seam or something
like that, and it shakes, shake the machine and the operator
pretty bad, substantially, and it could throw him off the
machine . You know, cause him to lose control" (sic) (Tr. 131) .
Enochs also opined that the bulldozer could accidentally run over
the highwall, as the berm in the area varied between knee to
waist level, and consisted only of overburden material.
On the other hand, on cross examination, it was elicited
from Enochs that the bulldozer as seen by him was not operating
"at a high rate of speed" (Tr. 146) . Further, on cross
examination Enochs was unable to state how often bulldozers have
been driven off a highball each year.
Miller explained that in stripping the overburden " . . . we
stay at least ten foot away from it [the highwall] with any
dozer" (sic.) (Tr. 185) . Berry explained that in normal
operations the overburden is cleared in stages working from top
down. He indicated that in normal operations, the closest the
bulldozer would get at the edge of a highwall was thirty to forty
feet (Defendant's Ex. 33). He opined that the tracks observed by
Enochs might have been placed by the bulldozer during the
clearing of the overburden, when those tracks would have been
located thirty to forty feet from the edge of the highwall.
E~ochs did not explain how, in normal operations, the bulldozer
would go within five feet of the edge of the top of an existing

1613

highwall. 2 I thus find that it has not been established that in
normal operations the bulldozer would go within five feet of the
edge of the top of an existing highwall.
Based upon all of the above, I conclude that it has not been
established that there was a reasonable likelihood of an injury
producing event, and thus it has not been established that the
violation was significant and substantial.
C.

Unwarrantable Failure
1.

Summary of the Testimony

Enochs testified that Jacobs had told him on the date the
Citation was issued that he sometimes wears a seat belt, and
sometimes does not. In contemporaneous notes taken by Enochs, he
indicated that Jacobs stated that "no one makes a big deal about
it".
(Defendant's Ex . 32) . I do not assign much probative
weight to this testimony, as it is heresay and thus inherently
unreliable. The declarant did not testify, and accordingly was
not present in court to be cross examined.
Dale St . Laurent, an MSHA investigator, interviewed Jacobs
who told him that REB did not have any seat belt policy, and that
no one have ever made him wear a seat belt. St. Laurent
testified that he also interviewed a Mr. Yates, a serviceman, who
told him that in the year prior to the inspection "he had never
seen either of those two dozer operators wear a seat belt . . . .
He doesn't remember anyone ever yelling at Mr. Berry or
Mr. Miller or anyone ever yelling at anybody to put seat belts
on" (Tr. 245). St. Laurent indicated that Yates told him that
there wasn't any policy regarding seat belts and that one told
him to wear seat belts (Tr. 162). According to St. Laurent,
Yates told him that Jacobs had told him (Yates} that M~ller and.
Berry never told him to wear a seat belt.

2

0n rebuttal, Enochs indicated that when he arrived at the
top of the highwall, bulldozers were backing out onto a thirty
foot area that had been strippeq . However, he did not testify
specifically how close these vehicles were to the edge of the
highwall.

1614

According to Enochs, Miller who was the supervisor on the
site, was present when the bulldozer was cited, but did not take
any corrective action. Enochs indicated that the fact that
Jacobs was not wearing a seat belt was obvious as the cab was
open.
Miller indicated that he arrived at work on August 16, at
6:00 a.m. and left the site at 7:00 a.m. to get some parts,
returning about 9:00 a.m. He testified that he had been on the
site for about ten minutes when he saw Enochs talking to Jacobs.
He indicated that when Enochs came up to Jacobs and told him to
put a seat belt on, he (Miller ) could not tell whether Jacobs
was wearing a seat belt. I observed Miller's testimony and found
him credible in these regards. Enochs indicated on cross
examination, that he was thirty to forty feet away from Jacobs
when he observed that Jacobs did not have a seat belt on, and
that Miller was approximately ten yards further back. Within his
context I find that there is no evidence that Miller ~ that
Jacobs had not been wearing a seat belt when cited.
Miller indicated that subsequent to September 1995, he has
been the supervisor a t the quarry but that in August of 1994, he
was only the "lead man" (Tr. 175) . He stated that in this
capacity it was his responsibility to operate equipment, and get
the dirt stripped. He said that in general, his supervisor , Ray
King, told him what to do on -the site, and he in turn passed this
information on to the other equipment operators. He said that he
did not have any authority to punish the men, and did not have
any authority to hire or fire. He stated that he was never told
what to do regarding the punishment to be given the men. He
indicated that he did not tell the men what equipment to use.
2.

Discussion

There is no evidence that King, the quarry supervisor, or
Miller, had notice or acknowledge that Jacobs was not wearing a
seat belt. There is no evidence trat King, prior to Enochs'
issuance of the Order at issue, was in any position to have
observed that Jacobs was not wearing a belt. Having observed
Miller's demeanor, I find his testimony credible, that on
August 16, he had only been at the site for approximately ten
minutes prior to Enochs' issuance of the Order, and had not
observed Jacobs being without a belt. When Enochs observed

1615

Jacobs being without a belt he was 10 yards closer to Jacobs than
Miller. There is no evidence that, Miller was in any position to
have observed that Jacobs was not wearing a seat belt.
I note
Enochs' testimony that King had received a special warning, and
training from MSHA regarding the need to ensure the compliance at
the site with the seat belt standard. However, this testimony
was not based upon Enochs personal knowledge, but rather was
based upon statements of another inspector made to him. Because
of the inherently unreliable nature of heresay testimony I do not
assign any probative weight to Enochs' heresay testimony, in
evaluating the critical issue of REB's unwarrantable failure.
For the same reason, I do not assign any probative weight to
Enochs' and St. Laurent's testimony about out of court statements
made by Jacobs and Yates concerning the attitude of their
supervisors regarding the use of seat belts, and the policy of
REB in this area. On the other hand, I find, as discussed above,
(.IY(c) infra), that the credible evidence establishes that REB
had indeed poste,d in its office information regarding the
requirement for its employees to wear seat belts while on the
job. Miller indicated that prior to the date of the Order at
issue, in his capacity as lead-man, he had not enforced seat belt
rules as he did not want to be hard on the men. However, the
record does not establish that Miller, on the date the Order at
issue was issued, had any official duties or responsibilies
toward enforcing compliance with the mandatory seat belt
standard. Within this context, I find that it has not been
established that the violation was the result of REB's
unwarrantable failure.
D.

Penalty

I find . that REBs negligence was no more than moderate.
I find that a penalty of $500 is appropriate.
E.

Section llO(c) violations.
and CENT 95-240-M)
1.

Docket Nos. CENT 95-239-M.

The Legal Standard to be Applied

Section 110(c) of the Act subjects certain individuals to
civil penalties if the Secretary .can sustain his burden of
proving that: (1) a corporate operator committed a violation of a
mandatory health or safety standard (or an order issued under the

1616

Act); (2) the individual was an officer, director, or agent of
the corporate operator; and (3) the individual ~knowingly
authorized, ordered, or carried out" the violation.
A violation by the corporate operator must be established
and such violation must be proved in the proceeding against the
individuals. Kenny Richardson, 3 FMSHRC 8, 10 (January, 1981),
aff'd sub nom. Richardson v. Secretary of Labor, 689 F.2d 632
(6th Cir . 1982), cert. denied, 461 U.S. 928 (1983). The
Secretary also has the burden of proving that the person charged
is an agent of the corporate operator. Under Section 3(e) of the
Act "agent" is defined as "any person charged with responsibility
for the operation of all or part of a coal or other mine, or the
supervision of miners in a coal or other mine."
Finally, the Secretary must prove that the agent "knowingly
authorized, ordered or carried out" the violation. The
appropriate legal inquiry in this regard is whether the corporate
agent "knew or had reason to know" of the violative condition.
Roy Glenn, 6 FMSHRC 1583, 1586 (July 1984), citing Kenny
Richardson, 3 FMSHRC 8, 16 (January 1981). In Kenny Richardson,
the Commission stated:
If a person in a position to protect employee safety
and health fails to act on the basis of information
that g:i.ves him knowledge or reason to know of the
existence of a violative condition, he has acted
knowingly and in a manner contrary to the remedial
nature of the statute. 3 FMSHRC supra, at 16.
In order to establish section llO(c) liability, the
Secretary must prove only that the individuals knowingly acted,
not that the individuals knowingly violated the law. Beth Energy
Mines. Inc., 14 FMSHRC 1232, 1245 (August, 1992). In ~oy Glenn,
6 FMSHRC 1583 (July, 1984), the Commission held, however, that
something more than the possibility of an underlying violation
must be shown to establish "reason to know".
6 FMSHRC at 1587-8.
Moreover, a "knowing" violation requires proof of aggravated
conduct and not merely ordinary negligence. Wyoming Fuel Co.,
16 FMSHRC 1618, 1630 (August, 1994).

·..'

1617

a.

Miller

Miller testified that on the date in issue, he was only a
nlead man" (Tr. 175), and did not become the quarry supervisor
until September 1995. He was asked whether he was Jacob's
supervisor and he answered as follows. ttI guess you can call me
that, yes, sir" (Tr. 176). Miller indicated that he did verbally
discipline the men working on the top of the highwall. Also, he
indicated that it was his responsibility, in addition to
operating the equipment on the top of the highwall, to transmit
to the men the directions he had received from his supervisor,
(King), regarding the tasks to be performed on the site. He
indicated that he did not have the authority to hire and fire,
was not told what to do regarding disciplining the men at the
site, and did not assign equipment to the men. Petitioner has
not rebutted or impeached this testimony.
I find that Petitioner has failed to adduce sufficient
evidence to est~blish that Miller had any significant
responsibility fbr the operation at the highwall, or that he
supervised the other miners working at that site. There is no
evidence whether he was paid as an hourly employee, or as part of
management. There is no evidence regarding any description of
his official duties and responsibilities. There is no evidence
that he had any direct responsibility for controlling the acts of
the miners on the highwall, that he had the authority to initiate
the assignment to them of their tasks, that he was responsible
for their performance and duties, that he had the responsibility
to discipline them if they did not perform their duties properly,
that he was responsible for the safety of the miners and their
operation, or that he was responsible to ensure that the
mandatory safety standards were complied with by the men at the
highwall. Within this context, I conclude that the Secretary has
not met his burden in establishing that Miller was an '~agent".
Accordingly, I find that Petitioner has not established that
Miller violated Section llO(c) of the Act.
b.

Berry

Berry was the owner, principal stockholder, and President of
REB on the date in issue. He thus was an officer and came within
the purview of Section llO(c), supra. It is incumbent upon the
Secretary to establish that Berry knew or had reason to know of

1618

the violative condition (Roy Glenn, supra.) There is no evidence
that he had any information that gave him any knowledge or reason
to know that Jacob was not wearing a seat belt. (See, Kenny
Richardson, supra at 16). For the reasons discussed above,
(IV (C) infra,) I find that as President, Berry's policy toward
the wearing of seat .belts was manifested by the posting of
material informing employees of their responsibility to wear
seat belts. 3 I observed Berry's demeanor. I find his testimony
credible that although he personally feels that a person has the
right not to wear a seat belt, he does not condone not wearing a
seat belt. I also accept his testimony that on five or six
different occasions when he saw employees not wearing a seat
belt, he told them to put on a seat belt and warned them that
they would be sent home the next time they were found to be
without a seat belt . 4
Within the context of the above evidence I find that it has
not been established that Berry knew or reasonably should have
known that Jacob was not wearing a seatbelt when cited. Nor is
there sufficient evidence of aggravated conduct on his part. For
these reasons, the llO(c) action against him shall be dismissed.

YI..

Order No. 4327625.
A.

Violation of Section 56.14130(g), supra.

Berry's testimony that REB has employees sign its safety
policy (Defendant's Ex. 28) when they start to work for REB, was
not impeached or contradicted. I therefore accept this
testimony. I note that this policy requires that seat belts "be
worn at all times of vehicle operation" (Defendant's Ex. 28).
3

REB's official policy provides that the first offence of a
failure to comply with the policy to wear a seat belt, will
result in "remainder of day of violation off without pay"
(Defendant's Ex. 28). Berry's action in warning, but not
discipline the employees he had caught not wearing· a seat belt
might lead to an inference that REB has been unduly lax in not
discipline employees for not wearing a seat belt. However, since
Berry did issue a warning, I cannot conclude that Berry's conduct
is to be equated with aggravated conduct, nor can it be the basis
of a Section 110(c) action.
4

.

1619

Approximately one hour after Enochs had cited the bulldozer
operator for not wearing a seat belt, he observed Jim Farrish
operating a John Deere bulldozer, but not wearing a seat belt .
According to Enochs he was at a forty five degree angle facing
the bulldozer. Enochs indicated that when he was sixty to
seventy feet away from Farrish, and approximately six to eight
feet above the ground that Parrish's bulldozer was being operated
on, he saw that Farrish was not wearing a seat belt. Enochs
issued an Order alleging a violation of Section 56 . 14130(g)
supra, which requires the wearing of seat belts.
Miller indicated that he spoke with Farrish later on that
afternoon, and Farrish informed him that he had the seat belt
on, but that he undid it when he saw Enochs approach him. I find
this heresay testimony inherently unreliable, and insufficient to
rebut or contradict Enochs' testimony regarding his observations.
There is no other evidence of record to contradict Enochs'
testimony regarding his observations. I thus find that REB did
violate Section 56.14130(g) supra, as alleged.
B.

Significant and Substantial

According to Enochs, the bulldozer in question was being
used to cut a ramp, and was being operated down an incline. He
said that, when cited, Farrish was "very close to a steep
incline" (Tr. 229). He described the area as consisting of
"unconsolidated material, very steep drop off" (sic) (Tr. 230).
Enochs opined that in the event the bulldozer would travel over
the ''hill" the operator would definitely be severely injured
(Tr . 231) .
Respondent did not offer any evidence to impeach Enochs'
testimony with regard to his observation of the terrain, and his
opinions regarding the likelihood of an injury producing event,·
and the seriousness of any resulting injur-Y. · I thus find,
based on the testimony of Enochs, that an injury producing event
was likely to have occurred, and that there was a reasonable
likelihood that the driver would have been injured as he was not
wearing a seat belt . There was also no contradiction or
impeachment of Enochs' testimony that the resulting injury would
reasonably likely have been perman~ntly disabling. I thus find
that it has been established that the violation was significant
and substantial (See Mathies, supra) .

1620

C.

Unwarrantable Failure

Enochs indicated that the instant Order was the fourth
Citation/Order that he had issued that morning involving not
wearing a seat belt. He indicated that the violative condition
was obvious, and that no corrective action was being taken by
management. Petitioner did not adduce any evidence that,
subsequent the issuance of the other seat belt violations by
Enochs, King had any opportunity to check whether other employees
were wearing their seat belts. There is no evidence regarding
King's actions subsequent to the first set of seat belt citations
and orders issued. There is no .evidence regarding his activities
between the time the first Citations/Orders were issued, and the
issuance of the instant order.
According to St. Laurent, Yates, had told him that in the
year prior to the instant inspection he never saw the two
bulldozer operators wearing their seat belts. St. Laurent
testified that he asked Yates if efforts were made to make
employees wear seat belts, and Yates told him that when he was
hired, no one told him to wear a seat belt. St. Laurent
testified that Yates also told him that he did not recall anyone
yelling at anyone else to put a seat belt on. St. Laurent
testified that he asked a Mr. Cunningham, a plant operator who
also operated equipment, about seat belts and the latter told him
that "what the normal posture was there is that if a guy wanted
to wear them, fine, and if he didn't then that was okay, too"
(Tr.246}.
For the reasons stated above, (Y(c} infra}, I find the
heresay testimony of St. Laurent regarding what Yates and
CUnningham told him to be inherently unreliable. I thus do not
assign it any probative value in evaluating the critical issue of
REB's unwarrantable failure, if any. I note that neither Yates
nor CUnningham was called by Petitioner to testify. Within the
above context, I find that it has not been established that this
violation was as the result of REB's unwarrantable failure. I
find that a penalty of $500 is appropriate.

1621

D. llO(c) violations
Miller

1.

For essentially the reasons set forth above, (Y(E) (a)
infra}, I find that it has not been established that Miller was
liable under Section llO(c) of the Act, and hence that action
against him shall be dismissed.
2.

Berry

I find that the heresay testimony o.f St. Laurent with
regard to out of court statements by Yates and Cunningham is
insufficient to establish Berry's liability under Section llO(c }
of the Act. Further, for the reasons set forth above, (Y(E) (b)
infra ), I find that Petitioner has failed to establish any
liability on Berry's part under Section llO(c) of the Act.
Therefore that action against him shall be dismissed.
VII.

Citation No.

432762~

On August 6, Enochs observed a track mounted trackhoe
operating in the stripping area. He said that this equipment is
used for excavating dirt, is track mounted, and rotates and
revolves. He said that the front and side window on the right
side was "cracked in several places" (Tr. 217), and that the
driver's vision would be obscured. He described the breakage as
being "pretty extensive throughout the whole panel" (Tr. 221).
Enochs issued a Citation alleging a violation of 30 C.F.R.
56.14103(a) supra, which provides, as pertinent, that if
windows are provided on self-propelled mobile equipment, "[t]he
windows shall be maintained to provide visibility for safe
operation . "
§

REB did not offer any evidence to contradict Enochs'
testimony regarding his observation~ . I therefore accept Enochs'
testimony, and find that REB did violate Section 56 . 14103(a)
supra. I find that a penalty of $50 is appropriate.
Y.l.ll..

Order No. 4327626.
On August 16, Enochs observed a Case backhoe being operated.

1622

According to Enochs it was being used as a loader, as it had a
bucket on the front. He . s~id that King had told him that it was
being used to clean spilled material. Enochs said the backhoe
was equipped with wheels, had a loader bucket in front, and a
backhoe bucket in the back. He opined that it was a combination
loader/backhoe. According to Enochs, the vehicle was not
provided with a seat belt.
On cross examination Enochs indicated that a wheel loader is
different than a backhoe, and that the vehicle in question was in
use when he inspected it.
Enochs issued an Order alleging a violation of 30 C.F.R
§ 56.14130(a) (3) which provides, in essence, ·that seat belts
shall be installed on "wheel loaders and wheel tractors".
It is incumbent upon Petitioner to establish that, as
commonly understood in the mining industry, a reasonably
prudent person familiar with the industry, the terms "wheel
loaders" or "wheel tractors" encompass the vehicle in question.
Enochs' opinion that the vehicle was a combination loader/backhoe
is not accorded much weight, as he did not set forth in detail
the basis for his opinion. Further, aside from this opinion
Petitioner has not proffered any evidence as to how the terms
"wheel loader" or wheel tractor" are commonly understood in the
mining industry. For these reasons, I conclude that Petitioner
has failed to meet his burden, and that this Order shall be
dismissed.
l..X.

Order No. 4327628.

Enochs indicated that on August 16, at about 12:00 p.m., he
was on a walkway which was approximately ten feet above where a
loader was being operated.
Enochs noted that his poi~t of
observation was approximately twenty feet removed from the
loader. Enochs testified that he saw the driver, Ron Alexander,
drive under him. Enochs said tha't he saw Alexander's hands on
the loader's controls.
According to Enochs, Alexander then
turned off the loader, did not unbuckle his seat belt, and
climbed out of the loader. According to Enochs, the loader was
being used to load material from a stock pile. Enochs issued an
Order alleging a violation of Section 56.14130(a) (3) supra.

1623

Based upon Enochs' testimony that I find credible, and that
was not contradicted by any other eyewitness, I conclude that
Alexander was not wearing a seat belt when cited by Enochs.
However, there is no evidence in the record that a seat belt had
not been installed on this vehicle. Accordingly, I find that it
has not been established that REB was in violation of Section
56.14130(a ) (3), which provides that seat belts shall be installed
on loaders. Hence , Order No. 4327628 is to be dismissed .

x.

Order No. 4327631.
A.

Violation of 30 C.F.R.

§

56.14107(a)

According to Enochs, on August 16, 1994, he observed that
there was no guard at the tail pulley of the radial stacker
conveyor belt. According to Enochs, the belt was in operation,
and the pinch point of the tail pulley which was not guarded, was
approximately two. feet above the ground . Enochs issued an Order
alleging a violation of 30 C.F.R. § 56 .l4107(a) which, as
pertinent, provides that "[m)oving machine parts shall be guarded
to protect persons from contacting gears, . . . chains, drive,
head, tail, and takeup pulleys, . . . and similar moving parts
that can cause injury."
REB did not prof fer the testimony of eyewitnesses to
contradict or impeach the observations of Enochs. REB's defense
appears to be based upon 30 C.F.R. § 56.l4107(b) which provides
that guards are not required where the exposed moving parts "are
at least seven feet away from walking or working surfaces". In
this connection, REB elicited from Enochs, on cross-examination,
that the unguarded tail pulley was not located in the normal path
of travel. Berry indicated that there was no reason to go to the
cited area, except to perform maintenance on the belt. In that
event, the belt would not be in operation.
I note Enochs' testimony that 'there was nothing to restrict
access to the unguarded tail pulley which was located only two
feet above the ground. The ground was the surface upon which men
~ walk or work.
Accordingly, the terms of the exception set
forth in Section 56.l4107(b) supra, has not been met. I thus
find that REB did violate Section 56.14107(a) supra .

1624

B.

Significant and Substantial

In essence, Enochs concluded that the violation was
significant and substantial, inasmuch as the pinch point was
exposed, and there were no barriers or signs warning persons of
this condition. Enochs opined that a person could easily get
caught up in the self-cleaning pulley which was not smooth.
According to Enochs, the pulley was located behind an exit door,
and was in a "natural traffic walkway area" (Tr. 277) . However,
he did not elaborate with sufficient specificity the basis for
this opinion . Enochs opined that should an injury occur as a
result of the v i olative condition, it would be at least
permanently disabling.
On the other hand, Berry opined that there was no reason to
walk in the cited area. Berry indicated that, in exiting the
shop, the path taken to other parts of the plant would not place
a person within twenty five, or thirty feet of the pulley. He
also was not aware of any injuries at this site.
Within the context of this evidence, I conclude that it has
not been established that an injury producing event was likely to
have occurred. Accordingly, I find that it has not been
established that the violation was significant and substantial.
C.

Unwarrantable Failure

Enochs testified, in essence, that his conclusion that the
violation was as a result of REB's unwarrantable failure, was
based upon the fact that King was given a handbook by MSHA
setting forth the need for guarding. For the reasons set forth
above, (l.Y(c) infra), I do not assign any probative value to this
heresay testimony.
I thus conclude that it has not be~n
established that the violation herein was as a result of REB's
unwarrantable failure.
D.

Penalty.

The tail pulley in question was self-cleaning, and was
located only two feet above the ground. REB did not contradict

1625

Enochs' testimony that the unguarded self-cleaning pulley can
grab a person's clothing, and wrap a person up in th~ tail
pulley .
I thus conclude that the gravity of the violation was
relatively high.
I find that a penalty of $500 is appropriate
for this violation.

XI..

Citation No, 4327632

On August 16, Enochs observed that there was an unguarded
V-belt drive on the simplicity belt vibratory screen. He
indicated that the V-belt drive was approximately three feet
above the walkway. The pulley itself was located about twenty
feet off the ground. Enochs issued a Citation alleging a
violation of Section 56.14107(a) supra.
REB did not of fer the testimony of any witness to impeach or
contradict Enochs' observations. Accordingly, I find that it has
been established that the drive belt was not guarded, and that
someone could be caught in the belt drive. I find that the
unguarded pinch point was located three feet above the walkway.
Although the pulley was twenty feet above the ground, I find that
the exception set forth in Section 56.14107(b) supra, does not
apply, as the unguarded pinch point was three feet above a
surface where persons ~ walk.
I thus find that it has been
established that REB did violate Section 56.14107(a) supra.
I
find that a penalty of $50 is appropriate.

X.I..I..

Citation No. 4327633.

Enochs observed that the V-belt drive of a thirty horse
power vibratory shaker drive belt, was not guarded. He indicated
that the belt machine and pulley were located along the walkway,
but probably fifteen feet off the ground . REB did not impeach or
contradict his testimony.
I find, consistent with the 'discussion
above (Xl infra,) regarding Citation No. 4327632, that REB did
violat~ Section 56.14107(a) supra, and that the exception set
forth in Section 56.14107(b) supra, does not apply.
I find that
a penalty of $50 is appropriate for this violation .
ORDER
It is ORDERED as follows: (1) Order Nos. 4327626, and
4327628, and Citation No. 4327635, and Docket Nos. CENT 95-239

1626

and 95-240 shall be DISMI SSED; (2) Citation No. 4 327776 and
Or der Nos . 43276 2 2 and 4327631 shall be amended to Section 104(a)
citations, and Order No . 4327625 shall be amended to a Section
104 (a) Citation that is significant and substantial; and (3) that
Respondent shall, within 30 days of this decision pay a total
civil penalty of $2,400.

Avram Weisberger
Administrative Law Judge
Distribution :
Daniel J. Haupt, Conference & Litigation Representative,
Mine Safety & Health Administration, U.S. Department of Labor,
1100 Commerce Street R4C50, Dallas, TX 75242-04299 (Certified
Mail)
Jack Ostrander, Esq . , Office of the Solicitor,
U.S. Department of Labor, 525 S. Griffin Street, Suite 501,
Dallas, TX 75202
(Cert i fied Mail)
James E. Crouch, Esq., Cypert, Crouch, Clark & Harwell,
P.O. Box 1400, Springda l e, AR 72765
(Certified Mail)
/ml

1627

FEDERAL KINE Sl\J"ETY AND HEALTH REVIEW COKKISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

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

5 1996

.
.

v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-258
A.C. No. 42-01944-03649
Cottonwood Mine

ENERGY WEST MINING COMPANY,
Respondent

DBCISION
Appearances:

Robert Cohen, Esq., Office of he Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Timothy M. Biddle, Esq., Lisa A. Price, Esq.,
Crowell & Moring, Washington, D.C.,
for Respondent.

Before:

Judge Cetti

This case is before me upon a petition for assessment of
civil penalties under sections lOS(d) and 110 of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seg. the "Mine
Act." The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, (MSHA), charges Energy West Mining Company
(Energy West) with the violation of the mandatory safety standard
JO C.F.R. § 75.202(a). Energy West is the operator of the
Cottonwood Mine, an underground coal mine, located in Emery
Gounty in Southwestern Utah.
MSHA issued the single citation in question after its
investigation of a "coal outburst" or "bounce" 1 which occurred
in the 4th left working section of the Cottonwood Mine on May 16,
1994, at approximately 12:38 p.m: in a large uncompleted proposed

The terms "coal outburst" and "pillar bounce" for purposes
of this decision are used interchangeably and essentially mean the
same condition.
The Dictionary of Mining, Mineral and Related
Terms defines a bounce: a. a sudden spalling off of the sides of
ribs and pillars due to excess pressure; a bump.
(United
States Bureau of Mines), 1967 Edition.
1628

pillar. The pillar was not fully formed by completion or mininq
of surroundinq entries and crosscuts. (Tr. 421).
There was a mininq crew workinq in the section, but no
miners suffered any injuries as a result of the bounce. Nevertheless, because ventilation on the section was disrupted and
production stopped more than an hour, MSHA was notified of the
incident. MSHA Inspector Baker was at the mine at the time the
bounce occurred on May 16, 1994~ and immediately went to the 4th
left section to investiqate. Baker did not issue a citation at
that time but did issue the citation in question a full two weeks
later on June 1, 1994. The citation alleges a violation of 30
C. F . R. S 75.202(a) which provides as follows :
30 C.F.R. S 75.202

Protection from falls of
roof, face and ribs:

(a) The roof, face and ribs of areas where
persons work or travel shall be supported or
otherwise controlled to protect persons from
hazards related to falls of the roof, face or
ribs and coal or rock bursts.
II
ISSUES

The Petitioner in his post-hearing brief states the issues
for decision as follows:
1. Did the Secretary establish that a
reasonably prudent person familiar with the
coal mining conditions at the Cottonwood Mine
would have provided additional measures to
prevent bounces in 4th left section? See the
Commission's decision in Canon Coal Company,
9 FMSHRC 667 (1987).
2. Did the evidence establish that Energy
West violated 30 CFR 75.202(a) at the
Cottonwood Mine because the operator failed .
to take adequate roof and rib support destressing measures in the 4th left section,
an area prone to "bounces" and "coal
outbursts"?

3. Can the Secretary establish a
violation of 30 CFR 75 . 202(a), even if there
is no evidence that Energy West violated its
approved roof control plan?

1629

4. If the evidence established that
Energy West violated 30 CFR 75.202(a), what
is the appropriate amount of civil penalty
that should {be) assessed by the presiding
Administrative Law ·Judge?

STIPULATIONS

1. Energy West and its Cottonwood Mine are subj e ct to the
Federal Mine Safety and Health Act.
2.

The Commission has jurisdiction over thi s proceeding .

3. The citation at issue was issued by an authorized
representative of the Secretary and was properly served on an
agent of Energy West.
4.

The citation was abated in good faith.

5. Energy West, cottonwood Mine, is a large underground
coal mine .
·
6 . Energy West's ability to continue in business will not
be affected by an assessment of a reasonable civil penalty if the
Secretary proves a violation in this case .
IV
BACJCGROUND

Energy West's Cottonwood Mine is an underground coal mine
located under East Mountain in southwestern Utah. At the time of
the May 16th bounce which resulted in the citation , the cottonwood Mine employed 225 hourly workers, represented by the United
Mine Workers of America ("UMWA"), and 60 management personnel.
Cottonwood produced 3 . 5 mi llion tons of clean coal in 1994.
The Cottonwood Mine is a "multi-seam" mine. Energy West's
Deer Creek Mine lies 85-110 feet above the Cottonwood 'Mine workings. The amount of "overburden," or cover, over the Cottonwood
mine ranges up to 2,100 feet. The cover in the area where the
bounce occurred, the 4th left section, was approximately 1,600
feet .
Energy West mines the coal from Cottonwood Mine with longwall equipment. To prepare for set-up of the lonqwall unit,
continuous mining machines develop gate entries, or roads, off a
main line, outlining a solid block of coal to be mined by the
lonqwall mining equipment . In the Cottonwood Mine, these solid
blocks of coal, or lonqwall panels, range from 600-750 feet in

1 630

width and can vary from 1,500 to 5,ooo feet in length. After the
longwall equipment is set up at the end of the qateroads, a shear
cuts coal along the face of the panel. It takes approximately
four months for lonqwall equipment to mine the entire block of
coal between the gateroads, producing about soo,ooo tons of coal.
Cottonwood began development of the main entries ("mains")
in Second North in 1990. As the mains were developetl, continuous
mining machines also developed "neck-offs" to begin qateroads for
future longwall panels on both the east and west, or right and_
left, sides off Second North.
These neck-offs were started at the same time as the main
entries to create space for future construction when Cottonwood
was ready to begin lonqwall mining in the panels intersecting
Second North. The neck-off areas off the mains of Second North
were rooms separated by pillars of coal for support. They were
the beginning of development of gateroads for future longwall
panels and were necessary to allow access to complete necessary
ventilation work and belt drive installation for future mining.
(See Ex. R-2).
The neck-off areas had three entries with 100-foot pillars
separating the entries . Because lonqwall gateroads must only
have two entries adjacent to the coal to be cut with longwall
equipment, the three neck-off entries were later reduced to two
gateroad entries. Once narrowed to two entries, two large
pillars, 50' by 100 1 , separated the gateroad entries. There were
no significant differences in the layout of each neck-off area on
the east and west sides of Second North. Solid coal lay beyond
the place where three entry mining stopped in each neck.
The Second North main entries in Cottonwood Mine were
directly under old mains in the Deer Creek workings above . At
the time Second North was developed in Cottonwood, the areas
above in Deer Creek had already been mined and were not active.
Since the Second North mains had to remain open during longwall
mining for ventilation, for a conveyor belt, and for transportation of material and miners, a protective 400-foot "barrier" of
solid coal paralleled the mains on both sides of Second North. A
similar barrier lay directly above in the Deer Creek works.
- Development of the panel neck-offs in Cottonwood's Second
North required mining under the Deer Creek barrier. Carl
Pollastro, the Mine Manager and General Superintendent testified:
"Any time that mining penetrates these barriers, there is stress
that's induced by virtue of this barrier and the mining pressures
that are transferred from the works above." This stress or
pressure is a naturally occurring consequence of multi-seam
mining. Crossing under the Deer Creek barrier while developing
panel neck-offs as occurred in Second North was a common practice
for Cottonwood; for example, the development of the neck-offs in

16 31

First North involved "at least 11 penetrations of the barrier,"
with the same type of pillar layout and entry configuration as in
Second North. There were about 25 development sections in Cottonwood with similar configurations that involved multi-seam
mining. Once gateroad development progressed past the barrier,
the pressures caused by barrier penetration dramatically decreased.
After the Second North mains and the longwall panel neckof f s were developed. Cottonwood began the second stage of
development; extending two-entry gateroads from the neck-offs for
the full length of each successive panel. This work began in
each panel with the neckdown from three entries to two entries .
The 8th left and 9th left panels were the first in Second
North to be fully developed and retreated with the longwall unit,
with 10th right, 11th right and 12th right following thereafter.
Mining then moved to the remaining panels on the right or east
side of Second North, with gateroad development and longwall
retreat mining starting with 8th right and proceeding south to
each panel below until all the longwall panels on the east side
in Second North (8th to 1st) were mined.
By the end of January 1994, mining was ready to resume on
the west side of Second North. The 6th left gateroads were the
first scheduled to be developed for longwall mining. As mining
began in the neck-off area in 6th left, roof falls and rib
bounces occurred in the entries that had already been developed.
aecause of safety concerns and logistical convenience. Two new
entries were developed to the south of the previously developed
entries in the 6th left original neck-off so the unstable area
would not have to be traveled . Thus, the 6th left entry and
pillar configuration in the neck-off area was slightly different
than the remaining panels on the west side of second North .

v
As the neck-down to two entries continued in 6th left, it
became apparent that Deer Creek barrier pressure was causing roof
and rib stability problems in that area. As a result, Kevin
Tuttle, then Chief Safety Engineer at the Cottonwood Mine and
Carl Pollastro, then Manager and General Superintendent at the
Cottonwood Mine, met with James E. Kirk, then Acting Subdistrict
Manager of the MSHA Subdistrict Office in Price, Utah, to discuss
steps that could be taken .to reduce or eliminate outbursts of
ribs and roof falls. Mr. Kirk and Blake Hanna, an MSHA roof
control expert, visited Cottonwood to observe the roof conditions
caused by the overlying Deer Creek barrier. The discussions
between Cottonwood and MSHA at this time focused on the safest
way to continue gateroad development in 6th left, while future
panels in Second North were mentioned, no proposals for these
panels were made at this time.

1632

VI

In light of the roof control difficulties in 6th left and
knowing the Deer creek barrier also would have to be crossed
during gateroad development in the 5th, 4th, 3rd, and 2nd left
panels, Cottonwood management met with the hourly workers in crew
meetings to discuss additional safeguards to minimize the hazards. A particular concern involved the pillars in-neck-off
sections previously developed in 1991 along Second North to allow
for subsequent longwall mining . As development proceeded in
future second North panels under the Deer Creek barrier, it was
believed important to take measures to "soften" the 1991 pillars
so they would not build up pressures caused by penetration under
the Deer Creek barrier. Cottonwood's management decided that the
1991 pillars in the remaining Second North neck-offs should be
notched to make them smaller and more likely to yield as they
absorbed overburden pressure.
"Notching" a pillar means cutting enough coal out of the
center of a pillar to allow the release of the stress that
naturally and dynamically builds in a pillar as active mining
around it forces it to absorb overburden pressures. A notched
pillar converges upon itself in a controlled manner so that the
likelihood of a · sudden outburst of coal or "bounce" is reduced.
Pillar notching can be hazardous depending on the cj.rcumstances,
but those hazards can be minimized by limiting the number of
miners near the pillar while the notch is being cut.
Reduction of pillar size through notching created potential
for small outbursts, but such activity was a positive sign since
it indicated that the pillar was yielding effectively and in a
controlled manner.
VII
THE PILLAR NOTCH PLAN
Having decided that notching the remaining 1991 pillars in
Second Nor.t h was necessary to protect the miners, Cottonwood's
management formulated a pillar notch plan to supplement its
approved roof control plan and asked the Union to review it.
Cottonwood incorporated several Union suggestions into its notch
plan and the Union approved it. Cottonwood then submitted the
notch plan to MSHA on February 2 ,· 1994, as an amendment to its
roof control plan. The plan was accompanied by a cover letter
summarizing it. (Ex. G-3).
The notch plan provided that the pillars created in 1991
during the development of Second North mains would be notched to
relieve stress before further development of gateroads for
longwall panel s. The plan was detailed; it contained four pages
of text and diagrams specifically outlining the procedures to be

1633

followed for notching the 1991 pillars in the 5th, 4th, 3rd, and
2nd Left section in Second North. Additionally, the plan included a diagram of the west side of Second North and detailed diagrams for the development of the gateroads in the 5th, 4th, 3d
and 2d left sections. Those aiagrams showed that notches also
were to be cut in the "new" and smaller pillars to be created as
the three gateroads in the neck-offs angled down to two gateroads. The new pillars showing notches on the plan diagrams were
to be the last pillars under the Deer Creek barrier and Cottonwood believed it prudent to notch these new pillars after they
were formed, using the same notching process as used for the 1991
pillars and for the same reason, to relieve overburden pressure.
The notches in the 1991 pillars in the 5th through 2nd left
sections were to be cut 40' deep into the center of the pillar,
because they were to be smaller, the newly developed pillars were
to have 30' notches into their centers (Ex. G-3, Tr. 266-67).
Neither the notch plan nor the cover letter summarizing it specified any particular time for notching during the process of
mining, neither in terms of which of the 1991 pillars would be
notched first, nor when new pillars would be notched during the
gateroad development process. (Ropchan, Tr. 182; Pollastro, 265266, 324).

There was conflicting use of the word "sequence" at the
hearing. "Sequence" can refer to the order in which particular
pillars were to be notched.
(Tr. 421). "Sequence" of notching
could also ref er to whether a notch in a new pillar was to be cut
before or after the pillar was fully formed by completion of
mining of surrounding entries and crosscuts. Under either definition, there was no sequence specified in the notch plan.

v:r:r:r
THE CONFERENCE CALL
MSHA and Cottonwood agreed to a conference call on February 4, 1994, to discuss the notch plan. Kevin TUttle,· Cottonwood's Chief Safety Engineer, went to the MSHA Subdistrict Office
in Price, Utah, where he joined Tony Gabossi, MSHA's subdistrict
Manager. Tuttle and Gabossi called the MSHA District Office in
Denver, where several MSHA representatives had gathered to discuss the plan. The MSHA officials in Denver who participated in
the conference call were Bill Holgate, MSHA's District Manager,
and Jerry Taylor, an MSHA engineer, as well as several officials
from MSHA's Technical Support, Safety and Health Technology
Center, including Sid Hansen, engineer, and David Ropchan,
engineer.
During the conference call, MSHA officials wanted several
additions to the notch plan before approving it. Specifically,
MSHA required that 20' of roof exposed in each notch be

1634

permanently bolted. Further, MSHA required that additional roof
support,. in the form of timbers or square sets, be installed in
the entry where a notch would be started. Nothing was added to
the plan about when the notches would be cut in either the 1991
pillars or in the new pillars to be created during gateroad
development. Mr. Tuttle immediately made the MSHA required
changes to the notch plan and faxed them to the MSHA District
Off ice. The notch plan was approved by District Manager Holgate
by letter on February 4, 1994, the day the conference call
occurred.
(See Ex. G-3).
IX
THE IKPLBKBNTATION OF NOTCH PLAN IN STB LEFT SECTION
Shortly after the notch plan was approved by MSHA on February 4, 1994, Cottonwood implemented the plan in 5th left of
Second North. (Ex. R-3; Tr. 268). The 1991 pillars were notched
according to the notch plan.
(Ex. G-3 at 6, R-3). The #1, #2
and #3 gateroad entries were developed under the general mine
plan. (Tr. 321). Once the entries proceeded far enough for the
#5 crosscut, the crosscut was mined from the #1 entry to break
through at the #2 entry. (Tr. 270). After a new pillar came
into existence between crosscuts #4 and #5, it was notched as
shown in the 5th left diagram attached to the plan. Since there
were no reportable bounces or significant roof falls during the
notching in 5th left, Cottonwood considered its notching technique a success in controlling the pressures exerted by the overlaying Deer Creek barrier.
·
MSHA did not monitor Cottonwood's implementation of the
approved notch plan in 5th left and there was no evidence that
there was any further communication between Cottonwood and MSHA
about the plan or mining conditions until after the bounce in 4th
left in May 1994 .
There was evidence of only two events at MSHA connected with
Cottonwood's notch plan between February 4, 1994, and May 16,
1994, neither of which involved anyone from the company. First,
almost six weeks after MSHA's approval of Cottonwood's pillar
notch plan, Mr. Ropchan said he prepared a memorandum about his
recollection of the subjects discussed in the February 4, 1994,
conference call but he did not send a copy of his memorandum to
anyone at Cottonwood or MSHA.
(Ex. G-6; Tr. 174). Second,
Mr. Hansen testified that sometime after the conference call he
developed computer simulations to evaluate mining methods that he
thought could be used to notch the pillars under the plan. (Tr.
126). He used generic assumptions; he did not visit the Cottonwood Mine nor collect data about it to conduct this analysis.
(Tr. 150) . Mr. Hansen never discussed the results of his analysis with Cottonwood, nor did he provide the company with a copy
of his results .
(Tr. 164). Mr. Ropchan and Mr . Hansen had no

163 5

further involvement in these issues.
Ropchan, Tr. 181, 189).

(Hansen, Tr. 98, 141;

THE IKPLEKEN'l'ATION OP NOTCH PLAN, 4TB LEFT SECTION
Gatewood development in 4th left, the panel imm'.ediately
south of 5th left, commenced after the notch plan had been
implemented successfully in 5th left. The layout of the 4th left
section was identical to that in 5th left with respect to pillar
size and configuration. The 1991 pillars in 4th left were
notched successfully under the procedures established in the
notch plan. New gateroad development began in 4th left precisely
as it had in 5th left. The #1, #2 and #3 entries were driven up
to the place where #5 crosscut was to be cut. (Tr. 273-74). on
Friday, May 13, 1994, a minor, non-reportable bounce occurred
along the north rib of the #1 entry. Supplemental timber support
was set in the #1 entry near crosscut #4 . (Tr. 361).
XI

TBE'-. HAY 16TB BOUNCE IN 4TB LBPT SECTION
on the morning of May 16, 1994, because the north rib of the
#1 entry had been unstable the preceding Friday, Lester Jorgensen, shift foreman, instructed Leonard Reid, section foreman, to
mine crosscut #5 from entry #2 to #1 to keep the miners away from
the north rib of entry #1, even though mining the crosscut in
this direction was against ventilation. Mr. Jorgensen wanted the
crosscut mined in this fashion to protect the miners from a
potential outburst from the north rib along the #1 entry.
At the start of the day shift on May 16, 1994, the continuous mining machine was in the #2 entry in 4th left. The #5
crosscut had been started from the #2 entry but could not be
driven from the #2 to the ' #l entry as planned because the #1
entry had not been entirely bolted by the end of the shift on the
preceding work day. The floor of that entry was partially obstructed by sloughage from the bounce the preceding Friday; loose
coal had been pushed toward the end of that entry and had to be
removed before bolting could be completed . Under its mine plan,
Cottonwood cannot break a crosscu~ through to an unbolted entry.
(Tr. 429). The continuous miner was brought from the #2 entry to
the #1 entry to clean the entry. After that task was completed,
the continuous miner was moved to the #3 entry so the roof bolting machine could be set up in the #1 entry to bolt the roof in
the remaining 35-40 feet still unbolted.
(Tr. 368, 397). When
the bolting was completed in the #1 entry, the continuous miner
was to be brought to .the #2 entry to cut the #5 crosscut through
to the #1 entry. After the #5 crosscut was bolted, and the ventilation established, the next step was to cut a notch in the

1636

newly created pillar between the #4 and #5 crosscuts as required
by the notch plan. However, operations were interrupted when a
rib bounce occurred at 12:38 p.m. The bounce blew coal from
newly exposed ribs into the #1 entry, into the #4 crosscut and
into the #2 entry for a short distance. Although a roof bolting
crew was in #1 entry when the bounce occurred, no one was injured. (Tr • 2 7 7) •
Although the outburst was an instantaneous release of
pressure with considerable force there was little damage. (Tr.
340). 2 The bounce was reported to MSHA because production was
stopped for more than one hour, in most part due to the disruption to ventilation and the Company's investigation of the event.
Carl Pollastro, the Mine Superintendent, was notified of the
bounce by Leonard Reid and immediately went to 4th left to investigate. James Baker, an MSHA inspector, and Jan Lyall, an MSHA
inspector trainee, were at the mine for a regular inspection when
the bounce occurred and Mr. Pollastro told them about it. Inspector Baker and Mr. Lyall also went to 4th left.
XII
'l'JIB CITATION
MSHA Inspector Baker inspected the area on May 16th right
after the bounce and issued a 103(k) order to "contro[l) the area
until [he] could complete an investigation." Later in the day
Baker terminated the 103(k) order and allowed Cottonwood to
continue developing the 4th left gateroads without any change in
mining procedures. He allowed Cottonwood to complete the #5
crosscut to define the pillar between the #4 and #5 crosscuts
before cutting the notch into the newly created pillar. (Tr.
92). Baker did not issue a citation on May 16, 1994, or during
the following two weeks.
Inspector Baker returned to the mine over the next two days
to interview mine personnel and on May 19, 1994, accompanied
Warren Andrews, of Denver Technical Support, who conducted a
technical investigation of the bounce. Mr . Andrews took photos
of the bounce area in 4th left and eventually prepar~d a report.
Baker did not learn of Andrews' report for sever?l months.
Mr. Baker prepared MSHA's official accident investigation
report.
(Ex. G-2). This report was released on October 7, 1994.
2

The bounce knocked down the ventilation line curtain and
dislodged approximately eight of the square set timbers set in the
area on the previous Friday. (Tr. 346, 403). The concussion from
the bounce also dislodged part of an overcast.
(Tr. 276, 347,
403). There was no damage to the roof. (Tr. 79, 346).

1637

Baker concluded that the block of coal bounded on three sides by
the #1 and #2 entries and the #4 crosscut should have been
notched prior to the bounce (Tr. 47), and before #1 entry was
advanced to where it would intersect the #5 crosscut. However,
Baker was unsure whether his ·suggested sequence of mining would
have prevented a bounce; he believed "it may have prevented it.
It may not." (Tr. 47-48). Baker could not conclude definitively
that the actions of the mining crew in 4th left caused or affected the bounce in any way.
(Tr. 84).
On June 1, 1994, Mr. Baker, two weeks after his first investigation of the bounce, issued a citation to Cottonwood, alleging
a violation of 30 c.F.R. S 75.202(a), not because of his conclusions about when the notch should have been cut but because, in
his opinion, "no steps were taken to prevent the bounce that
could have seriously injured those two roofbolters that were
working in that #1 entry." (See Citation 3588448, Ex. G-1; Tr.
48) . Had the roofbolters not been in the #1 entry when the
bounce occurred--for example, if the bounce had occurred when no
work was being done, or if the roofbolters had been elsewhere at
the time of the bounce--Baker would not have issued any citation
for the bounce . . It is undisputed that no violation of cottonwood's roof control plan occurred.
XIII
THE ABATEKBNT

To abate the citation, MSHA required cottonwood to submit a
revised notch plan. The revised plan limited the length the #1
and #2 entries could be driven before a notch was cut in -newly
developed pillars. In other words, MSHA required a notch to be
driven on the advance of the #1 entry. The revised plan required
by MSHA to abate the citation did not require cottonwood to
develop the new pillars in any different or smaller configuration
and the layout of the gateroads in 4th left and the gateroads in
the remaining sections to be developed under the plan (3rd left
and 2nd left) were identical to the layouts specified in the
original notch plan submitted by Energy West and approved by
MSHA. The citation was abated after Cottonwood submitted this
revised plan.
XIV .
CONCLUSION

The citation issued by MSHA Inspector Baker two weeks after
he first investigated the May 16th outburst charges Cottonwood
with the violation of 30 c.F.R. ~ 75.202(a). It alleges that
"The operator failed to protect persons from the hazards related
to falls of roof, face, or ribs and outbursts as a coal outburst

1638

(bounce) occurred in the 4th left section •••
does not mention the fact no one was injured.)

"

(~he

citation

Section 75.202(a) is not a strict liability standard. It
does not impose liability whenever a "bounce" occurs. To
establish a violation, the Secretary, by a preponderance of
evidence, must demonstrate a lack of reasonable care on the part
of the operator. Under the Commission decision in aanon coal
Co., 8 FMSHRC 667 (1987) to prove a violation of 30 C.F.R.
§ 75.202(a) the secretary must demonstrate by a preponderance of
the evidence a lack of reasonable care on the part of the mine
operator. To determine if the standard has been violated, an
objective standard of a reasonably prudent person is applicable.
In the present case I find that a preponderance of the evidence
presented fails to prove that Cottonwood acted in any manner
other than th~t of reasonably prudent person, familiar with the
mining industry and the protective purpose of the standard, in
both recognizing potential outburst hazards and in undertaking
measures designed to avoid those hazards .
In this case there was commendable cooperation and earnest
work by both the operator and MSHA to prevent any significant
coal outburst. In spite of their best efforts, the May 16th
outburst did occur. Fortunately no one was injured.
It is only by hindsight that MSHA speculates that perhaps
notching pillar No. 5 even before it was completely formed "may"
have prevented the bounce. Inspector Baker who issued the
citation testified "it may have prevented it. It may not." (Tr.
84).

Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence fails to establish the violation of 30
C.F.R. § 75.202(a).
ORDER

Citation No. 3588448 and its corresponding proposed penalty
are VACATED and this case is DISMISSED.

A

st F. Cetti

~dministrative

1639

Law Judge

Distribution :
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Timothy M. Biddle, Esq., Lisa A. Price,
Esq., CROWELL
.
, & MORING,
1001 Pennsylvania Ave., N. W., Washington, DC 20004-Z595
(Certified Mail)

/ sh

1640

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

SEP

6 1996

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-719-M
A.C . No. 42-02086-05503
Monroe Pit

WISER CONSTRUCTION,
Respondent
DECISION

Appearances:

Kristi Floyd, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for
Petitioner;
Mr . Paul Ronald Lewis, pro se, Wiser Construction,
Moapa, Nevada, for Respondent.

Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Wiser
Construction, L.L . C., pursuant to section 105 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815. The petition
alleges two violations of the Secretary's mandatory health and
safety stand~rds and seeks a penalty of $10,000 . 00.
A hearing was held on May 9, 1996, in Las Vegas, Nevada.
For the reasons set forth below> I affirm the citations and
assess a penalty of $7,500.00 .
aackground
On December 7, 1993, MSHA Mine Inspector James V. Skinner
issued l07(a) Order and 104(a) Citation No. 2653620, 30 U.S.C.
§§ 817{a) and 814{a), to Wiser Construction for a violation of

1641

section 56.3131 of the regulations, 30 C.F.R. § 56.3131.1 Miners
were withdrawn from the southeast section of the pit and the
citation issued because the inspector found that loose,
unconsolidated material and large rocks found at the top and
upper section of the 300 feet high highwall posed an imminent
danger to the operator of a front-end loader working at the foot
of the highwall.
Discussions with the company resulted in an agreement that
starting at the top of the highwall, the company would
begin to bench that down so it became a multiple bench
mine, rather than just a large highwall. It would be a
series of stair steps, maybe to illustrate, where the
mine would be benched with a smaller highwall and then
a bench, and then just stair-stepping it down until it
became manageable. The agreement was that -- the
crushers were at the base of that highwall, a safe
distance ~way, but what had to be done was to maintain
a slope nearly at the angle of repose, which was
approximately 37 degrees, with the material being
pushed from the upper benches and maintain a slope, so
that the material could be safely loaded from . the toe
of that broken rock pile.
(Tr. 9-10.) The "angle of repose" is •approximately the angle at
which broken or loose, unconsolidated material will come to rest,
just on a natural angle, just as it's piled or pushed into the
pile." Id .
On June 8, 1994, MSHA Inspector Richard R. Nielsen was
inspecting a mine adjacent to the Monroe Pit when his attention

1

Section 56.3131 requires that:

In places where persons work or travel in
performing their assigned tasks, loose or
unconsolidated material shall be sloped to the angle of
repose or stripped back for at least 10 feet from the
top of the pit or quarry wall. Other conditions at or
near the perimeter of the pit or quarry wall which
create a fall-of-material hazard shall be corrected.

1642

was directed to Wiser Construction's operations. It appeared to
him that the angle of repose was not being maintained and that
there was no margin of safety for the loader operators .
Consequently, he interrupted the inspection that he was
performing and went to the Monroe Pit.
After inspecting the pit, he issued Order/Citation Nos.
4332892 and 4332893, under sections 1 07(a) a nd 104(a). Both
alleged violations of section 56.3131 of the regulations.
Order/Citation No. 4332892 stated:
On June 8, 1994 at about 1515 hours a front-end
loader loaded material from the toe of the highwall at
the southeast section of the pit. Loose ground was
hanging on the highwall which was about 37 meters (120
feet) high . Order No. 2653620 was issued on 12/7/93
and remained outstanding, was modified on 12/08/93 "to
allow excavation on the outer perimeter of the broken
material ·toe in the southeast section of the pit . . . .
this modification allows for outer perimeter excavation
if a safety margin (horizontal distance ) is maintained
between the vertical solid highwall and the excavation
area." The safety margin of slope d material and
horizontal distance was not maintained as required by
Order No . 2653620. This constitutes working in the
face of Order No. 2653620.
(Govt. Ex. 1.)
Order/Citation No. 4332893 stated:
Two front-end loaders were extracting material
from the toe of the highwall at the middle sect~on of
the pit. There was loose ground on the highwall which
was about 37 meters (120 feet) high. The mined
·material had been extractetl from the toe of the
highwall to the extent that the rock face of the
highwall was exposed and the wall was sloped much
steeper than the angle of repose. Loose ground on the
highwall was of sufficient size to cause fatal injury
to the loader operator if it were to strike the loader
cab or come through a cab window.
(Govt. Ex . 4.)

1643

Findings of Fact and Conclusions of Law

During the ·hearing, the Respondent's representa_tive was
asked if he was contesting the citations or just contesting the
penalty. He stated: ~I'm more in opposition to the penalty. I
felt like the citations the way they understood them and the way
we understood them were a little different. But to say that's a
100-percent safe operation on that highwall, I'd be lying to you
and I'm not going to do that.n (Tr. 55.) I agree with his
assessment of the case .
Based on the evidence presented by the Secretary, I conclude
that the Respondent twice violated section 56.3131 on June 8,
1994, by failing to slope its loose and unconsolidated material
to the angle of repose. I further conclude that the large
boulders and other loose material located on the highwall made it
reasonably likely that the front-end loader operators working at
the foot of the highwall, instead of at the toe of the sloped
. material as they should have been, would be seriously injured if
work continued in that manner. Finally, I conclude that the
company's failure to maintain the proper slope on the highwall
resulted from "high" negligence in view of the previous
order/citation and discussions with MSHA inspectors.
Ciyil Penalty Assessment

The Secretary has proposed a civil penalty of $10,000.00 for
these two violations . The company argues that the penalty is
unreasonable when its safety record and financial condition are
taken into account . It is the judge's independent responsibility
to determine the appropriate amount of penalty, in accordance
with the six criteria set out in section 110(i) of the Act, 30
U.S.C. § 820{i}. Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147,
1151 (7th Cir . 1984); Wallace Brothers, Inc ., 18 FMSHRC 481, 48384 (April 1996).
In connection with the six criteria, the pleadings indicate
that this is ·a small mine and that the company is a small
operator. The company's history of assessed violations is good.
On the other hand, these were both serious violations as the
operator's negligence was high and the likelihood of death or
serious bodily injury resulting from the violations was also
high.

1644

The Respondent claims that if the •penalty is not abated it
will severely hamper our cash flow capabilities for continuing as
an ongoing business.# (Resp. Ex. A at p. 4.) The burden of
establishing that payment of a civil penalty would adversely
affect a company's ability to stay in business is on the company.
Sellersburg Stone Co. at 1153 n.14. As evidence of its financial
situation, the company has submitted a balance sheet, a statement
of operations and a schedule of wor~ in progress, all dated
September 30, 1995 . (Resp . Ex. A at pp. 12-14.)
While these documents, which do not puZJ)ort to be either
audited or certified, apparently show a loss of $35,919.00, they
do not show that payment of a penalty of $10,000.00 would
adversely affect the company's ability to continue in business if
it chose to do so. Spurlock Mining Co., Inc., 16 FMSHRC 697, 700
(April 1994). In fact, the company's representative admitted as
much at the hearing when he stated : •r mean, I wouldn't say that
I wouldn't be able to remain in business, just not at the same
degree of integrity that I can right now.- (Tr. 52.)
Consequently, I conclude that imposition of the proposed penalty
will not adversely affect the company's ability to remain in
business.
These violations were specially assessed at $5,000.00 each.
The special assessment justification for Citation No. 4332892
includes the statement that the violation was the result of
intentional conduct on the part of management . This is
apparently because the citation stated that the violation
resulted from the operator's "reckless disregard.n However, at
the hearing it was revealed that the parties agreed at the closeout conference that the negligence would be reduced to "high."
Accordingly, the Secretary moved to amend the citation to reduce
the level of negligence to "high" and the motion was granted.
(Tr. 32-33.)
Because of the reduction in the degree of negligence, the
penalty should be reduced accordingly. Therefore, considering
all of the criteria in section lOO(i), as discussed above, I
conclude that a penalty of $3,750.00 for each citation, for a
total penalty of $7,500.00, is appropriate.

1645

ORDER

Accordingly, Order/Citation Nos. 4332892 a.n d 4332893 are
AFFIRMED . Wiser Construction, L .L. C., is ORDERED TO PAY a civil
penalty of $7,500.00 within 30 days of the date of this decision.
On receipt of payment, this proceeding is DISMISSED.

v:~~i/LL

T: Todd H~
Administrative Law Judge

Distribution :
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certif.ied Mail )
Mr . Paul Ronald Lewis, Wiser Construction, P.O. Box 160, Moapa,
NV 89025 (Certified Mail)
/lt

1 646

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

SEP 1 11996

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 93-646
A.C. No. 15-05423-03734
Mine No. 1
Docket No. KENT 93-884
A.C. No. 15-16733-03546
Mine No. 7

DECISION ON REMAND
Before: Judge Weisberger
On August 30, 1996, the Commission issued a decision in
these cases in which it, inter .al.ia, reversed my decision
(16 FMSHRC 1669 (August 1994)), that Order No. 4238749 was not
S & S, and remanded the matter to me "for penalty reassessment"
(Docket No. KENT 93-646, et al., 18 FMSHRC · ~, slip op. at 9,
(August 30, 1996)) . 1
I take cognizance of the Commission recitation of the
Secretary's evidence showing the following: two miners were in
the mines for four hours without a preshift examination; the
miners' equipment included torches; the bolter was energized;
there was a possibility of the p~esence of low oxygen; and that
the mine roof had a tendency to fall, and the mine had

Pursuant to the Commission's direction, I hereby correct a
clerical oversight with respect to Docket No. KENT 93-882, and
indicate that it contained only one Citation i.e., No. 3003352,
which was vacated.
I thus order that Docket No. KENT 93-882 be
dismissed.
1

1647

follows : "During idle periods, methane can build up, and other
unforseen hazards can develop."
(slip op. supra, at 8). Based
on these factors, I find that the gravity of the violation was
relatively high.
I also reiterate my initial finding that
Respondent's conduct was more than ordinary negl igence (16 FMSHRC
supra, at 1703). I thus find that a penalty of $5,000 is
appropriate for the violation cited in this order .
It is ORDERED that, within 30 days of this decision .
Respondent shall pay a total civil penalty of $5,000 for the
violation cited in Order No. 4238749, minus any penalty
previously paid for this violation.

Judge
Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215 (Certified Mail)
Susan C . Lawson, Esq., Lawson & Lawson, P.S . C., P . O. Box 837,
Harlan, KY 40831 {Certif ied Mail)
/ml

1648

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

SEP 2 0 1996
CIVIL PENALTY PROCEEDINGS

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

Docket No . KENT 93-646
A.C. No. 15-05423-03734
Mine No . 1
Docket No. KENT 93-884
A.C. No . 15-16733-03546
Mine No. 7

AMENDED DECISIQN
Before: Judge Weisberger
Due to clerical error, the second paragraph of the decision in
these cases isued on September 11, 1996, is amended to read as
follows:
I take cognizance of the Commission's recitatio~ of the
Secretary's evidence showing the following: two miners were in
the mine for four hours without a preshift examination; the
miners' equipment included torches; the bolter was energized;
there was a possibility of the presence of low oxygen; and
that the mine roof had a tendency to fall, and the mine had
experienced several roof falls.
Ibe Commiss i on a l so noted as
follows: "During idle periods, methane can build up, and other
unforseen hazards can develop . "
(slip op. supra, at B). Based
on these factors, I find that the gravity of the violation was
relatively high.
I also . reitera~e my initial finding that
Respondent's conduct was more than ordinary negligence (16 FMSHRC
supra, at 1703). I thus find that a penalty of $5,000 is
appropriate for the violation cited in this order.

Avram eisberger
Administrative Law Judge

1649

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

SEP 1 2 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-15
A. C. No. 36-07270-03526

v.

L & J Energy Company
L & J ENERGY COMPANY, INC.,
Respondent
DECISION ON REMAND

Appearances:

Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Robert G. Spencer, President, L & J Energy, Co.,
Inc., Grampian, Pennsylvania, for the Respondent.

Before: Judge Weisberger
On April 22, 1996, the Commission issued a Direction for
Review Order in which it granted L & J's Petition for
Discretionary Review on the issue of its ability to continue in
business. The Commission remanded the matter to me "for
appropriate proceedings on this issue".
On May 3, 1996, in a telephone conference call with
representatives of both parties, the latter were ordered to
communicate with each other to determine whether the matter at
issue could be resolved by a sett~ement agreement. On May 13,
1996, in a subsequent telephone conference call, the parties
advised that they were unable to settle this matter but requested
a one month extension to allow L & J to submit documentation to
the Secretary in support of its position . In a follow-up
telephone conference call on June 18, 1996, the parties advised
that they were unable to settle this matter, and L & J requested
an opportunity to present testimony. The Secretary did not

1650

object to this request . A hearing was scheduled for July 9,
1996, to allow L & J to present evidence on the issue of· its
ability to continue in business.
In general, the operator bears the burden of establishing
that payment of civil penalty would adversely effect its ability
to continue in business (See, Sellerburg Stone Company y. FMSHRC
736 F2d 1147, 1153, n.14 (7th Cir. 1984) citing, Buffalo Mining
Company, 2 IBMA 226, 247-48-251-252 (1973)}. At the hearing,
L & J offered in evidence financial statements covering the
calendar years 1994 and 1995 . A cover letter on the letterhead
of Johnston, Nelson & Shimmel, Certified Public Accountants was
attached to these statements. The cover letter indicates that
the statements of income and earnings were reviewed, but that
the review was " . . . substantially less in scope than an
examination in accordance with generally accepted auditing
standards . . .
." (Operator's Exh. A-1, pg. l} It thus is not
an audit, and accordingly is not entitled to any probative value.
Further, the cover letter indicates that the information included
was based on the representations of the management of L & J. No
one having personal knowledge of the data set forth in the
financial statments testified on behalf of L & J . Accordingly,
there is no basis in the record to establish the veracity and
trustworthiness of the figures set forth in the statements
including reports of deficits of $403,541 for 1994 and $471,884
for 1995. Thus, these figures are not accorded any probative
weight.
L & J also offered in evidence a statement from Debra A.
Young, the Comptroller of Hepburnia Coal Company, indicating that
the coal tonnage produqed by L & J from October 1995 through
March 1996 totalled 170,982.82 tons sold and that 33,000 tons
"were needed to breakeven".
(Operator's Exh. A-3}. The
statement contains the following opinion "An additional
assessment resulting from this case could hinder if not
completely halt his efforts to save this company." However, it
is significant to note that Young, who testified, does not work
for L & J, did not prepare any of the financial data proffered by
L & J and did not have personal knowledge of this data.
Accordingly, her statements are not accorded any probative
weight. In the same fashion, no probative weight is accorded
Operator's Exhibit A-5 listing the expenses of L & J, as Young

1651

indicated that the data contained therein were compiled by
L & J's bookkeeper, who did not testify. Accordingly, in the
absence of testimony from persons having personal knowledge to
authenticate the data in this exhibit, I do not accord any
probative value to this data.
Respondent relies on Operator's Exhibit A-6 setting forth
expenses and income for the period December 1995 through May 1996
which shows a total loss for this period of $156,923 . 68.
However, there was no testimony presented to provide a basis to
establish the veracity of the figures set forth in that document.
The statement was prepared by the bookkeeper, who did not
testify . Accordingly no probative weight is assigned to the
figures set forth in this statement.
In view of all these facts, I conclude that L & J has not
proffered competent evidence to establish that the imposition of
civil penalties would significantly impair its ability to
continue in business. I reiterate my earlier findings regarding
the factors set forth Section llO(i) of the Act (16 FMSHRC supra
at 449-450), and reiterate my prior finding that a civil penalty
of $87,500 is appropriate.
ORDER
It is ORDERED that if Respondent has not already paid the
total civil penalty of $87,500, then Respondent shall pay $87,500
within 30 days of this decisio~

,,,,. ...

Avram Weisberger
Administrative Law Judge

Distribution:
Linda M. Henry, Esq., Office of t~e Solicitor, U.S. Department of
Labor, Room 14480 Gateway Bldg . , 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Robert G. Spencer, President, P.O. Box I, Main Street, Grampian,
PA 16838 (Certified Mail)
/ml

1652

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

SEP 1 2 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) I
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-537-M
A.C. No. 26-00015-05534
Mine: Nevada Cement Co.

NEVADA CEMENT COMPANY,
Respondent

DECISION
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Nevada Cement
Company pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petition alleges two
violations of the Secretary's mandatory health and safety
standards and seeks a penalty of $10,000.00. For the reasons set
forth below, I affirm the citations and assess a penalty of
$7,500.00
Prior to hearing, the parties agreed to stipulate to the
facts in the case and to submit the case in writing. The
stipulated facts and briefs have been filed by both parties.

Background
After reporting for work on the morning of May 22, 1995,
Preston Niemeyer was directed by his supervisor to replace the
muffler on a 1972 International flat bed service truck. The
truck was equipped with a five - speed manual transmission. The
truck was in the central bay of Nevada Cement's truck shop. It
was in first gear, but the pa~king brake had not been set or
placed in the "on" position and the wheels had not been chocked
or blocked.

1653

While lying under the truck and removing the exhaust pipe
from the exhaust manifold, Niemeyer apparently touched part of
the exhaust pipe's heat shield to the starter solenoid. As a
result, the engine started and the truck rolled over him, causing
fatal injuries. The truck traveled about 32 feet before it
stopped when it struck another parked vehicle. The accident
occurred at about 6:50 a.m.
MSHA's investigation of the accident resulted in the
issuance of Citation Nos. 4140701 and 4140702. Both citations
state that: "On May 22, 1995, a fatal powered haulage accident
occurred at the plant's truck shop. A mechanic was working on a
service truck when the engine accidentally started and rolled
over the victim who was under the truck working on the exhaust
system."
Citation No. 4140401 alleges a violation of section
56.14207, 30 C.F.R. § 56.14207, 1 because "the truck's parking
brake had not been set to prevent unintentional movement."
Citation No. 4140702 alleges a violation of section 56.14105, 30
C.F.R. § 56.14105, 2 because "the truck had not been
blocked/chocked to prevent accidental movement."
Findings of Fact and Conclusions of Law
The parties have agreed to settle Citation No. 4140702. A
reduction in penalty from $4,000 . 00 to $3,000.00 is proposed.
In
addition, they have agreed that if Citation No. 4140701 is
affirmed, the penalty should be reduced from $6,000.00 to
$4,500.00. They disagree, however, as to whether the Respondent
violated section 56.14207.
The Respondent argues that Citation No. 4140701 should be
dismissed because it does not apply in this situation. According
to Nevada Cement, section 56.14207 applies only to vehicles that
have been parked and left unattended, i.e. "without a person in
proximity," not vehicles that have been parked for the purpose of

1

Section 56.14207 provides, in pertinent part, that
"[m]obile equipment shall not be left unattended unless the
controls are placed in .the park position and the parking brake,
if provided, is set."
2

Section 56.14105 requires, in pertinent part, that
"[r]epairs or maintenance of machinery or equipment shall be
performed only after the power is off, and the machinery or
equipment blocked against hazardous motion."

1654

performing repairs and/or maintenance on them.
(Resp. Br. at 45.) The company further argues that the two violations at issue
arise from same incident and, therefore, amount to overcharging.
(Resp. Br. at 9.) I find that section 56.14207 was applicable to
this accident and that both sections were properly cited in this
case.
There do not appear to be any Commission decisions dealing
with either of these sections as cited in this case.
Nevertheless, if there is a question as to whether a regulation
applies to a specific incident, the Commission has directed that
the question be answered by using the "reasonably prudent person
test." That is, "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).
In essence, the Respondent argues that the truck in this
case was not "unattended" because the mechanic was present,
albeit underneath the truck. However, it is obvious that the
purpose of the regulation is to prevent mobile equipment from
moving when someone is not in a position to stop it. Thus,
"unattended," as used in the regulation, me.a ns more than someone
not being in proximity to the vehicle. I find that mobile
equipment is "unattended" when no one is present who can prevent
it from moving. This is consistent with the first definition
found in Webster's Third International Dictionary 248~ (1986)
that "unattended" means "not attended: a: lacking a guard,
escort, caretaker, or other watcher."
Clearly, Niemeyer was not in a position, lying underneath
the truck, to prevent it from rolling forward. Consequently, the
truck was unattended while he was working on it. Accordingly, I
conclude that a reasonably prudent person familiar with the
mining industry and with the requirements of section 56.14207
would have recognized that in such a situation the regulation
requires that the parking brake pe set.
Contrary to the Respondent's argument, I do not find that
the two regulations are mutually exclusive. It is not a matter
of either setting the parking brake when the equipment is parked
or blocking the wheels when the parked vehicle is being repaired.
Because a person performing repairs or maintenance on a vehicle
is often in an exposed position if the vehicle were to move, just

1655

as Niemeyer was in this case, it is completely logical that the
regulations would require both that the parking brake be engaged
and that the wheels be blocked. This makes sure, as best as
possible, that the vehicle cannot move.
As the Commission has observed: "The 1977 Mine Act imposes a
duty upon operat ors to comply with all mandatory safety and
health standards.
It does not permit an operator to shield
itself from liability for a violation of a mandatory standard
simply because the operator violated a different, but related,
mandatory standard." El Paso Rock Quarries, Inc., 3 FMSHRC 35,
40 (January 1981) . Here, although the two violations arose from
the same event, "the citations are not duplicative because the
two standards impose separate and distinct duties upon the
operator."
Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378
(March 1993) .
Therefore, I conclude that Nevada Cement was properly cited
for a violation of section 56.14207. I further conclude that the
company violated the regulation when the parking brake was not
set while Niemeyer was working underneath it.
Civil Penalty Assessment
The parties settlement agreement provides for a penalty of
$4,500.00 for Citation No. 4140701 and $3,000.00 for Citation No.
4140702, for a total penalty of $7,500.00. 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).
ORDER
Accordingly, the motion for approval of settlement is
GRANTED, Citation Nos. 4140701 and 4140702 are AFFIRMED and
Nevada Cement Company is ORDERED TO PAY a civil penalty of
$7,500.00 within 30 days of the d~te of this decision. On
receipt of payment, these proceedings are DISMISSED.

'!-~~~

Administrative Law Judge

1656

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S . Department
of Labor, 71 s 't evenson St. Suite 1110, San Francisco , CA 94502
(Certified Mail)
I

James B. Leslie, Esq., Law Offices of Michael B. Springer ,
500 Ryland, Suite 200, Reno, NV 89502 (Certified Mail)
/lt

...

"·
.·:

1657

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

SEP 2 0 1996
HAROLD HOLTZ,

DISCRIMINATION PROCEEDING
Complainant
Docket No. CENT 96-7-D
DENV CD· 95-13

v.
FALKIRK MINING COMPANY,
Respondent

Mine ID 32-00491
DECISION

Appearances:

Before :

Steven L. Latham, Esq., Bismarck, North Dakota for
Complainant;
Charles S. Miller Jr., Esq., Fleck, Mather, &
Strutz, Bismarck, North Dakota for Respondent.

Judge Fauver

This is a complaint under§ lOS(c ) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C . § 801
.e.t. ~., alleging discrimination on February 23, 1995, when
Respondent notified Complainant that he was being placed on
probation for six months because of an incident with its safety
manager at a bar.
Holtz contends that the safety manager, Archie Gilliss, gave
a false and exaggerated account of the incident as a means of
retaliating against him because of his protected activi~ies under
§ lOS(c).
He further contends that this was part of a pattern of
false and exaggerated reports by Gilliss against him in
retaliation of his protected activities. As evidence of a
pattern, he cites two prior adverse actions in 1993 and 1994.
Falkirk Mining denies any discrimination or hostility toward
Holtz' protected activities and contends that the prior adverse
actions are barred by the statute of limitations .
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative
and reliable evidence establishes the f o~lowing Findings of Fact

1658

and further findings in the Discussion below:
FINDING OF FACT
1. On December 17, 1990, Harold Holtz was involved in a
fatal accident at the Falkirk Mine, a surface coal mine operated
by Respondent Falkirk Mining Company in Bismarck, North Dakota.
Falkirk is a subsidiary of the North American Coal Corporation.
The mine produces . coal for sale or use in or affecting interstate
commerce.
2. The accident involved a collision between a large coal
hauler operated by Holtz and a scraper . The operator of the
scraper was killed . Holtz suffered shoulder injuries that
required surgery and rehabilitation of several months.
3. Holtz had a substantial disagreement with management
concerning the cause of the accident and safety rules he believed
were necessary to prevent future accidents. Management did not
find Holtz at fault in the accident. The disagreement arose from
Holtz' belief that management was covering up its responsibility
for conditions that led to the accident.
4. MSHA issued two citations on December 19, 1990, and a
third on January 22, 1991, based on its investigation of the
accident.
5. Holtz disagreed with MSHA's investigation report as well
as mine management's account of the accident. He frequently
expressed his complaints to management, especially to Archie
Gilliss, the mine safety manager . Gilliss advised him to report
his concerns to MSHA if he was not satisfied with the
investigation or had more information to assist the
investigation. Holtz had many contacts with MSHA concerning its
investigation and its preparation for a hearing on its citations.
Holtz was expected to testify at.the hearing .
6. The citations were settled on September 22, 1992, with a
90% reduction in penalties and a major reduction in the charges.
Holtz was very upset over the settlement and felt that it was a
white - washing of serious violations. On a number of occasions,
he expressed his opinion to persons at the mine and others,
including MSHA officials, that there was collusion between

1659

Falkirk's management and MSHA, and that mine management and MSHA
had engaged in a cover-up of serious safety violations.
7. On February 24, 1993, more than two years after the
accident, MSHA inspected the Falkirk Mine following a complaint
from an unidentified caller. During the inspection, in which no
violations were found, Holtz asked to talk to the inspectors.
Holtz met with Inspectors Larry Keller and James Beam and again
complained about the investigation of the 1990 accident and
settlement in 1992. This was not a new subject for the MSHA
inspectors. Holtz had voiced the same complaints to Keller and
other MSHA officials on a number of occasions. Holtz testified
that he had 8-10 conversations with at least three different MSHA
officials prior to the February 1993 inspection.
8. Keller was concerned about Holtz' emotional reaction to
the 1990 accident and investigation and Holtz' statement to him
that he continu~d to have disturbing flashbacks when ever he
drove by the scene of the accident. Keller was concerned that a
person driving a coal hauler carrying 300 tons of coal at 55
m.p.h. needed to be concentrating 100% on what he was doing in
order to operate the equipment safely.
9. At the conclusion of the February 1993 inspection,
Keller talked to Archie Gilliss, mine safety manager, about
Holtz' continued emotional reaction to the 1990 accident and
investigation, his flashbacks, and how his emotional state might
affect his ability to concentrate fully on operating the large
coal hauler. Keller noted that the company had an employee
assistance program and asked Gilliss if the company could provide
Holtz some assistance, meaning professional counseling. Gilliss
prepared a memorandum to his files concerning his discussion with
Keller and reported the matter to mine management. After
consultation with legal counsel, management decided to take Holtz
off the equipment and place him on paid medical leave for
psychological evaluation. The dec.i sion was a collective one and
involved Falkirk's President, Falkirk's Manager of Human
September 11, 1996 Resources, Holtz' line supervisors, and
Gilliss.
10. Holtz was very upset with Falkirk's decision to require
him to undergo psychological evaluation. He filed a § lOS{c)
discrimination complaint against Falkirk on March 22, 1993,

1660

contending that Gilliss lied about Keller's comments in order to
retaliate against Holtz' protected activities.
11. MSHA investigated Holtz' discrimination complaint and
determined there had been no violation of § lOS(c). After
receiving MSHA's decision, around November 1, 1993, Holtz elected
not to pursue his complaint before the Review Commission.
12. In this proceeding, which involves a later
discrimination complaint (in 1995), Holtz contends that Gilliss
demonstrated a pattern of hostility toward Holtz' protected
activities. As part of the pattern, Holtz contends, Gilliss lied
to Falkirk's management concerning the extent of Keller's remarks
to Gilliss following the February 1993 inspection. Holtz
testified that he talked to Keller and that Keller had denied
stating that he considered Holtz to be a safety risk to himself
and his fellow miners or a "time bomb" ready to go off, as
Gilliss had re~orted to management. Keller testified that he
expressed to Gilliss his concerns about Holtz' inability to put
the accident behind him and the possibility that he was not able
to maintain his concentration while operating the large coal
hauler. Keller also testified that he mentioned Holtz'
flashbacks and asked Gilliss whether there was something that
Falkirk could do in terms of providing Holtz with counseling. In
large part, Keller confirmed Gilliss' account of the
conversation, although Gilliss may have exaggerated some of
Keller's statements.
13. In March 1993, Holtz went on medical leave with full
pay and benefits. Dr. Tello, the physician staffing Falkirk's
Employee Assistance Program, referred him to Dr . Peterson, a
clinical psychologist who was not connected with Falkirk. Dr.
Peterson saw Gilliss and also had him see a psychiatrist, Dr.
Thaker, who also was not connected with Falkirk. Following those
consultations, Dr. Peterson reported to Falkirk that Holtz had
unresolved psychological conflicts as a result of the 1990
accident and strongly recommended that Holtz receive counseling
from either a psychiatrist or a psychologist. Dr. Peterson noted
that there was a significant ongoing conflict between Holtz and
the mine staff. He described Holtz as being a "worrisome, tense
individual who is likely to be ·rigid and stubborn in
relationships." He also reported that Holtz "is suspicious of
others and has difficulty trusting." At the same time, however,

1661

Dr. Peterson reported that he did not consider Holtz to be a
danger to himself or others in carrying out his job
responsibilities.
14. Following Dr. Peterson's report, Holtz was returned to
duty as a coal hauler operator, but was required to attend
further counse l ing as recommended by Dr. Peterson. The
additional counseling was performed by Dr. Hanlon, who was not
connected with Falkirk. Although this situation was somewhat
unique, Falkirk has taken similar actions with regard to other
employees. In one instance, Falkirk required a dragline operator
who was having emotional problems to obtain assistance and in
other instances had referred personnel to its EAP program when
there were unexplained problems with their job performance.
15. After returning to duty, Holtz' relationship with mine
management continued to be poor. Holtz' immediate supervisor,
Mr. Davison, wrote in Holtz' employee evaluation on October 7,
1993, the following:
Harold's basic attitude toward his job as a coal hauler is
satisfactory. It is also satisfactory toward his
supervisor. However, with respect of his attitude toward
the company as a whole and particularly toward members of
management, it is much below average. Much if not all is
manifest from his involvement in the fatal accident of
12/17/90 and a subsequent evaluation this summer. There
have been times when Harold was emotionally upset that I
believe Harold was not 100% committed to his primary job as
Coal Hauler Operator. I feel Harold needs to put these
incidents behind him emotionally and move on with his job
and his future at Falkirk. [Ex. C-4]
16. On August 3, 1994, Gilliss had an incident with Holtz
in the shift change area at the mine. Gilliss reported to
Falkirk's management that Holtz asked him, "Have you talked to
your high ranking MSHA official buddy that you are in cahoots
with lately?" Gilliss stated in his report that when he asked
Holtz what he meant, Holtz referred to Inspector Keller and the
conversation between Keller and Gilliss that precipitated Holtz
being sent for psychological evaluation. Gilliss also reported
that when Holtz began talking about this subject, Holtz got redfaced and angrier and angrier, pointed his finger at Gilliss, and

1662

with a very hard and glaring stare, stated "I'll see you in
court." Tr. 197-200.
17. Based upon Gilliss' report, management gave a written
warning to Holtz on August 11, 1994. The written warning
concluded:
Your comments and behavior towards Mr. Gilliss are totally
uncalled for and is unacceptable behavior by one employee
towards another at the Falkirk Mine, thus, any similar
behavior in the future will result in stronger discipline,
up to, and including termination.
You have been previously advised of your right to pursue
legal action or avail yourself to the appropriate state or
federal authorities if a problem exists but when you sue
[sic] this as a device to threaten and intimidate other
employees;" this behavior is unacceptable and subject to
disciplinary action. [Ex. C-5]
18. On the evening of February 21, 1995, Holtz happened to
come across Gilliss in a bar at the Comfort Inn motel in
Bismarck, North Dakota, about fifty miles from the Falkirk Mine.
During "happy hour," Gilliss was in the bar with his brother-inlaw and several of his family members who were staying at the
motel. Holtz was in the bar with his wife and another couple.
When Gilliss came into the bar, his party happened to take a
table next to Holtz' table. Gilliss later reported to management
that Holtz glared at him from Holtz' table and that at one point
Holtz stood by Gilliss' table for several minutes and stared at
Gilliss without talking and, finally, when Gilliss acknowledged
his presence (by saying, "Hello, Harold") Holtz simply walked
away without comment . Gilliss reported to management he felt
threatened by this conduct, particularly given the setting in
which it took place and not knowing what might happen next.
19. Holtz testified that he simply stood a few moments at
Gilliss' table for an opportunity to greet him, and then left .
He denied he did so in a threatening or intimidating manner.
20. Several persons testified about the incident in the
Comfort Inn in addition to Gilliss and Holtz: Gilliss' brotherin-law David Laber, Holtz' wife, and one of the individuals who

1663

was with the Holtz party, Mr. Robertson . Although there were
some discrepancies in the accounts given by these witnesses as to
exactly where persons were situated at various points during the
evening and other like details, these discrepancies were not
unusual. Considering the testimony of these witnesses along with
the testimony of Gilliss and Holtz, I find that Holtz did pause
at the table at which Gilliss was seated and did stare at Gilliss
without speaking. Gilliss' report to management stated that
Holtz stood near his table for "several minutes."
I find that
this was an exaggeration and that Holtz stood at the table about
30 seconds .
21. As a result of Gilliss' report to management,
management made the decision, after consultation with legal
counsel, to place Holtz on six months probation. The written
notice of probation was given on February 23, 1995. The notice
referred to the prior warning on August 11, 1994, and stated
that he was being placed on probation because he had engaged in
further objectionable conduct of an intimidating nature. Ex. C-6 .
22 . Holtz filed a second§ lOS(c) discrimination complaint
against Falkirk, dated March 24, 1995, which is the subject of
this proceeding. The complaint was investigated by MSHA, which
concluded that there had been no violation of § 105(c) .
23. During probation, Holtz continued working but was
denied a wage increase and a yearly bonus paid to other
employees. The wage increase was given as .of the date of his
completion of probation and the bonus for the prior year was then
paid .
24. At the time of the hearing, May 1996, Holtz was
employed at the Falkirk Mine and there had been no further
incidents in his employment relationship. Management ' had
installed traffic safety rules and Holtz was performing his job
well.

1664

DISCQSSION WITH FQRTHER FINPINGS. CONCLUSIONS
Section 105(c) 1 of the Act protects miners and others from
discrimination because of the exercise of rights under the Act,
including making safety complaints to the mine operator or to
MSHA.
A miner alleging discrimination under§ lOS(c) establishes a
prima f acie case of discrimination by proving that he or she
engaged in protected activity and the adverse action complained
of was motivated in part by that activity. Secretary on behalf
Qf Pasula v . Consolidation Coal Co., 2 FMSHRC 2786, 2797-800
(1980), rev'd on other grounds. sub nom. CQnsolidatiQn Coal Co.
v. Marshall, 663 F.2d 1211 {3d Cir. 1981); Secretary on behalf Qf
Robinette v . United Castle CQal 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 protected activity.
If the operator
cannot rebut the prima facie case in this manner, it nevertheless
may defend affirmatively by proving that it is also was motivated
by the miner's unprotected activity and would have taken the
adverse action for the unprotected activity alone. Pasula, 2
FMSHRC at 2799-2800; Robinette, 3 FMSHRC at 817-18; see also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.
1987).
As the Commission and Courts have repeatedly noted, direct
evidence of discriminatory motive is rare . Usually
discrimination can be proven only by circumstantial evidence upon
which the trier of fact draws an inference regarding the
employer's motivation . Secretary of Labor on behalf of ChacQn v.

1

Section lOS(c) (1) provides in part :

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 . .. because
such miner ... has filed or made a complaint under or
related to this [Act] including a complaint notifying
the operator ... of an alleged danger or safety or health
violation in a coal or other mine ....

1 665

.·:.:·.

Phelps Dodge Corporation, 3 FMSHRC 2508, 2510 {1981).
The most common circumstances upon which such an inference
may be based are the employer's knowledge of the protected
activity, hostility towards the protected activity (animus),
nearness in time between the protected activity and the adverse
action, disparate treatment of the complainant and similarly
situated employees, and the resort to pretextual grounds for the
adverse action against the complainant.
Section 105{c) protects the exercise of rights under the
Act, but not misconduct. Abusive or threatening conduct toward a
supervisor or management staff in raising a safety complaint may
run the risk that the operator will take disciplinary action for
conduct that is not protected by§ lOS{c).
Protected Activities
Holtz was engaged in numerous protected activities. He
disagreed with the company's account of the 1990 accident and
raised complaints about safety rules needed to prevent similar
accidents. His voicing of these concerns to mine management and
the mine safety manager was protected against retaliation under §
105 {c) .
His numerous contacts with MSHA concerning its investigation
and its preparation for a hearing on citations were protected
under§ lOS(c). His status as a prospective witness at the
hearing was protected.
His filing of a § lOS{c) complaint of discrimination in 1992
was a protected activity.
Finally, his complaints about the 1992 settlement of the
citations and penalties were protected activities to the extent
that they raised questions of a violation of the Act or
regulations for the proper enforcement and administration of the
Act.

1666

Disposition of the Issues
Holtz contends that Falkirk's probation decision was based
on Gilliss' account of the incident in the Comfort Inn on
February 21, 1995, and that Gilliss gave a false and exaggerated
account to retaliate against Holtz because of his protected
activities. Holtz contends that Gilliss demonstrated a pattern
of hostility toward his protected activities as evidenced by the
probation decision and Falkirk's two prior adverse actions of
placing Holtz on medical leave for psychological evaluation in
1993 and its written reprimand in 1994. Holtz contends that all
three actions were based on Gilliss' accounts of the facts which
were false or exaggerated by Gilliss to retaliate against Holtz'
protected activities. The company denies any discrimination or
hostility because of Holtz' protected activities and asserts that
the 1993 and 1994 actions are barred by a 60 day statute of
limitations.
The two prior adverse actions are not part of Holtz' present
complaint of discrimination, and will not be adjudicated here as
liability claims. However, they will be considered under the
issue whether management through Gilliss demonstrated a pattern
of hostility toward Holtz' protected activities .
1.

Medical leave for psychological evacuation

In March 1993, Gilliss reported to management that MSHA
Inspector Keller had expressed concerns about Holtz' emotional
state and safety as a heavy equipment operator. Based upon
Gilliss' account of Keller's remarks, management decided to place
Holtz on medical leave for psychological evaluation.
Holtz testified that Keller told him that he did not tell
Gilliss that Holtz was a danger to himself or others, ·or a "time
bomb" waiting to go off, as Gilliss had reported to management .
Keller testified that he expressed concerns about Holtz'
inability to put the accident behind him and the possibility that
he was not able to maintain full concentration while operating
the large coal hauler. Keller also testified that he mentioned
Holtz' flashbacks about the accident and asked Gilliss whether
there was something that Falkirk could do in terms of providing
Holtz with counseling. I find that the essence of the
inspector's safety concerns about Holtz' emotional state was

1667

conveyed in Gilliss' report to management, even though Gilliss
may have exaggerated or misstated some of Keller's remarks.
The evidence does not indicate that Gilliss' report to
management was motivated in any part py Holtz' protected
activities. Gilliss did not demonstrate hostility toward Holtz'
protected activities. Instead, he recommended that Holtz contact
MSHA if he had any further complaints or facts to assist the
investigation of the 1990 accident. Gilliss' report about
Keller's remarks was in March 1993, which was about six months
after the settlement of the citations and almost two years after
Holtz first started complaining to the company and to MSHA about
the accident and the investigation. There is no close
relationship in time between Holtz' protected activities and
Gilliss' report of Keller's remarks. 2 The evidence indicates
that Gilliss was motivated to alert management to Keller's safety
concerns about Holtz because of the significance of a federal
mine inspector expressing concerns about the emotional state and
possible safety risk of a heavy equipment operator.
2.

Written warning on August 11. 1994

Gilliss wrote a memorandum to his files on August 3, 1994,
concerning a confrontation with Holtz in the shift change area.
Based upon Gilliss' report to management, management issued a
written warning to Holtz on August 11, 1994 .
This incident was long after the 1990 accident and 1992
settlement of the citations with MSHA. The evidence indicates
that Gilliss' motivation in reporting the August 3 incident to
management was his concern about abusive and intimidating
behavior by Holtz rather than Holtz' protected activities.

Holtz' statements to Keller during the February 1993
inspection were protected activities. However, the evidence
indicates that Gilliss' motivation in reporting Keller's safety
concerns about Holtz was to alert the company to a federal
inspector's concerns, not to retaliate against Holtz for
protected activities.
2

1668

3. Letter of probation on February 23. 1995
The controlling issue in this case is whether Gilliss'
account of the Comfort Inn incident, which induced management's
probation decision in February 1995, was motivated in any part by
Holtz' protected activities.
On February 22, 1995, Gilliss prepared a memorandum of an
incident with Holtz at the Comfort Inn bar on February 21, 1995.
Ex. C-12. This memorandum was the basis of his report to
management, which led to management's decision to place Holtz on
probation for six months. Gilliss' report to management is an
integral part of management's decision because it provided the
facts accepted by management as the basis for its probation
action. If Gilliss' report is found to be tainted by
discrimination, management's decision would be similarly tainted.
Although '. Gilliss' memorandum of the incident contains some
exaggerations, I find that the essence of Holtz' conduct that
disturbed him, i.e., standing at his table and staring at him
without talking, was conveyed in his report. The evidence does
not preponderate to show a nexus between Gilliss' report to
management and any protected activities by Holtz. Instead, the
evidence indicates that the motivation of Gilliss and management
was to address conduct they perceived as intimidating and a
violation of the August 11, 1994, written warning.
In summary, after proving his protected activities, Holtz
had the burden to prove that there was some nexus between his
protected activities and the challenged adverse action.
The evidence does not show a nexus between any of the three
adverse actions (in March 1993, August 1994, and February 1995)
and Holtz' protected activities. First, the evidence · does not
show that Respondent had hostility toward Holtz' protected
activities. Gilliss and management on several occasions told
Holtz that if he had continuing concerns about the· 1990 accident
or the investigation he should contact MSHA. The accident
occurred in December of 1990 and the settlement of the citations
was approved in September 1992. During this time Holtz had a
number of contacts with both MSHA and Falkirk management and
Gilliss concerning his complaints about the investigation and his
perceptions that Falkirk had misrepresented the facts and

1669

;,
·~-:

covered up serious violations and was "in cahoots" with MSHA and
its attorneys. Yet during this period Holtz was not disciplined
by Falkirk and was given good evaluations for his job
performance. Secondly, the evidence indicates that each of the
three adverse actions had a close relationship in time with
conduct that was not protected by§ lOS(c) . The decision to
place Holtz on medical leave for psychological evaluation in
March 1993 directly followed the concerns raised by MSHA
Inspector Keller about Holtz' emotional state and possible safety
risk as a heavy equipment operator. The written warning on
August 11, 1994, was triggered by an August 3 incident that the
operator perceived as employee misconduct, not an activity
protected by§ lOS(c). Finally, the probation decision on
February 23, 1995 was based on conduct on February 21 that the
operator perceived as a violation of the August 1994 written
warning and not an activity protected by§ lOS(c).
For the above reasons, I find that the evidence does not
establish a violation of § lOS(c). Even if the evidence were
found to prove that the probation decision was motivated in some
part by Holtz' protected activities, I find that the operator
affirmatively proved that it considered Holtz' unprotected
conduct and would have put him on probation for that conduct
alone.
Respondent's Motion to Recoyer Attorney Fees and Costs
Respondent contends that Holtz' discrimination complaint is
without merit and was filed as a tactic to forestall or chill
legitimate personnel actions and to re-litigate claims barred by
the statute of limitations. It requests a finding that Holtz has
abused the discrimination complaint process and moves for
recovery of attorney fees and costs under the Commission's Rules
of Practice, 29 C.F . R. § 2700 . 1, and Fed . R . Civ. P.11 . .
I find that the complaint res.ts upon substantive
contentions, and was not frivolously brought. Holtz had good
faith, substantial concerns about what he perceived to be
management's failure to acknowledge its own role in contributing
to the fatal accident, its delays in adopting and fol l owing
traffic safety rules, and its pa~ticipation in a "white-washing"
settlement of MSHA's charges and civil penalties. Holtz also
felt frustrated by management's failure to spend time with him

1670

after the accident to get his input on the facts and safety
issues he perceived about the accident and concern~ he felt about
the loss of a co-worker's life. He felt isolated by management
after a traumatic accident that he believed could have been
prevented through the observance of proper traffic safety rules.
On good faith grounds, although not meeting his burden of proof,
Holtz believed Gilliss and management retaliated against him
because of his protected activities. Factual issues as to the
two prior adverse actions were relevant in considering whether
Gilliss, a key management agent, demonstrated a pattern of
hostility toward Holtz' protected activities. In sum, I find
that Holtz has not abused the discrimination complaint process.
CONCLUSIONS OF LAW
1.

Respondent's Falkirk Mine is subject to the Act.

Harold Holtz, has failed to prove a
violation of • lOS(c} of the Act.
2.

Comp.~ainant,

3.
In bringing this action, Complainant has not abused the
discrimination complaint process.

ORDER
WHEREFORE IT IS ORDERED that:
l.

The complaint is DISMISSED.

2. Respondent's motion to recover attorney fees and costs
is DENIED.
},
~

c.tk:Lt
~~,.,__,___
William Fauver

Administrative Law Judge
Distribution:
Steven L. Latham, Esq., P.O. Box 2056, Bismarck, ND
(Certified Mail)

58502-2056

Charles S. Miller, Jr., Esq., Fleck, Mather & Strutz, P . O.
Box 2798, Bismarck, ND 58502 - (Certified Mail}
nt

1671

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

SEP 2 0 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-233
A.C. No . 36-04109-03520
Ambrosia Tipple

AMBROSIA COAL &
CONSTRUCTION COMPANY,

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

CIVIL PENALTY PROCEEDING
Docket No . PENN 94-15
A.C. No. 36-04109-03522 A
Ambrosia Tipple

AMBROSIA COAL &
CONSTRUCTION COMPANY
ORDER ON REMAND
Before: Judge Fauver
On September 12, 1996 the Commission remanded these
cases to the judge for reassessment of civil penalties .

.

The Secretary shall have 15 days from the date of
this Order to propose the amounts of reassessed civil
penalties against Ambrosia and Steen with the reasons
therefor consistent with the Commission's decision in
this case and in Sellersburg Stone Co . , 5 FMSHRC 287,
293-3 (1983).
Each Respondent shall have 10 days to

1672

reply to t h e Secretar y ' s prop o s e d p enaltie s and t o
recommend counter-proposals wit h t he rea sons the r e for
consistent with the above decisions.

ti~ fo,t"'~

William Fauver
Administrative Law Judge

Distribution:
Jerold s. Feingold, Esq., Office of the Solicitor , U . S.
Department of Labor, 4015 Wilson Boulevard, Room 400,
Arlington, VA 22203 (Certified Mail)
William P. Getty, Esq., Hugh F . McGough, Esq . , Meyer,
UnKovic & Scott, 1300 Oliver Bldg., Pittsbur gh, PA
15222 (Cert~fied Mail)
Frank G. Verterano & Manolis, 2622 Wilmington Road, Ne w
Castle, PA 16105 (Certified Mail)
nt

1673

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0 .C. 20006

September 26, 1996
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 96-103-M
A . C. No . 20-00773-05525-A

v.
RAYMOND P . ERNST , EMPLOYED
BY LYON SAND & GRAVEL co. I
Respondent

Lyon Sand & Gravel

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

CIVIL PENALTY PROCEEDING

v.
SCOTT BANDKAU , EMPLOYED BY
LYON SAND & GRAVEL co.
Respondent
I

Docket No . LAKE 96-104-M
A.C. No. 20-00773-05524-A

Lyon Sand & Gravel

ORDER OF DISMISSAL
Before:

Judge Merlin

These eases are petitions for the assessment of civil
penalties filed by the Secretary of Labor against respondents,
Scott Bandkau and Raymond P . Ernst, under section 110(c) of the
Federal Mine Safety and Health Act of 1977, 30 U . S . C. § 810(c),
hereinafter referred to as the "Act". Respondents seek to have
the petitions dismissed on the ground that the Secretary has
failed to act in a timely manner .
These cases involve one citation and four orders issued to
respondents' employer, Lyon Sand ~Gravel Company, under section
104(d) of the Act, 30 U.S.C. § 814(d), for alleged violations of
the Act and its mandatory standards. The five violations were
issued on September 21, 1994 .
On February 26 , 1996, the Sec;:retary issued notices of proposed
civil penalty assessments against respondents and on March 22,
1996, respondents timely requested a hearing. 29 C . F.R. § 2700.26 .
The Secretary had 45 days after receipt of the hearing requests to

1674

file his penalty petitions. 29 C.F.R. § 2700.28. In these cases
the Secretary received respondent Ernst's hearing request on
March 26, 1996, and respondent Band.kau's request on March 27, 1996.
Therefore, the petitions were due on May 10, 1996, and May 13,
1996, respectively . 29 C.F.R. § 2700.8.
The Solicitor failed to file the penalty petitions. On
June 4, 1996, orders were issued to the Secretary to show cause
within 30 days why these cases should not be dismissed for
untimely filing.
On July 12, 1996, the Solicitor filed the penalty petitions.
The petitions were accompanied by a motion for leave to file them
out of time which offered the following explanation :
The Secretary devoted many hours of review to the
above-captioned case in order to determine if a civil
penalty was appropriate based on the facts as known to
him. This review required the scheduling of meetings
between interested parties, both live and by phone
which took· considerable time and effort. Therefore,
the Secretary was not able to reach a conclusion about
whether to file a Petition for Assessment of Civil
Penalty in the instant case before now.
On August 13, 1996, respondents filed a motion to dismiss.
Respondents complain that the penalty petitions were not filed
within the required 45 days and point out that they were not
filed until after show cause orders were issued. Respondents
further complain that the subject citation and orders were issued
on September 21, 1994, almost 22 months before the penalty
petitions were filed.
It is respondents' assertion that the
Secretary has failed to demonstrate adequate cause and they have
been prejudiced by the delays.
On August 22, 1996, the Solicitor filed a letter · stating
that he would not be filing additional motions.
The Commission permits late filing of penalty petitions
where the Secretary demonstrates adequate cause for the delay and
where the respondent fails to show prejudice from the delay.
Salt Lake County Road Department, 3 FMSHRC 1714, 1716 (July
1981); Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989).

1675

The reasons offered by the Solicitor in these cases to
justify the late filings fall short of what is required for a
showing of adequate cause. The Solicitor makes the briefest of
responses which contains only general statemepts about events
which allegedly caused the untimeliness. The specific circumstances are not addressed . The Solicitor refers to many hours of
review, but the actual times spent and the chronology of those
times are undisclosed. He mentions many meetings between interested parties , but does not say who the parties were or when the
meetings took place . Finally, the Solicitor fails to sufficiently answer respondents' allegations because he does not
distinguish between the delay in filing the penalty petition and
the delay in the investigation phase. Because the Solicitor's
explanation is general and vague, it could apply to any llO(c)
case where timeliness becomes an issue.
In James Lee Hancock. Employed by Pittsburg and Midway Coal
Company . 17 ~SBRC 1669 (September 1995), I granted requests
from the Solici~or for extensions of time to file the penalty
petition and rejected claims that there were undue delays by
MSHA during its investigation and by the Solicitor in filing the
penalty petition. However, in Hancock the Solicitor provided a
detailed exposition of the problems encountered in considering
the case as well as the sequence of events that occurred. Based
upon those circumstances, he justified the time used by the
Secretary both in investigation and in filing the penalty petition. The Solicitor here has done none of these things.
It is axiomatic that section llO(c) is an integral and
important part of enforcement under the Mine Act . When Solicitors are confronted with allegations such as those made by the
respondents here, they must do more than recite generalizations
unrelated to what transpired in the case.
Because there has been no showing of adequate cause, i t is
not necessary to reach the issue of prejudice.

1676

In light of the foregoing, the Solicitor' s motion to file
the penalty petitions out of time is DENIED.
It is ORDERED that these cases be DISMISSED .

=
Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Keith E . Bell, Esq . , Office of the Solicitor, U. S. Department of
Labor , 4015 Wilson Boulevard, Arlington, VA 22203
Laura Beverage, Esq . , Jackson & Kelly, 1616 Lincoln Street, Suite
2710 , Denver , CO 80264

1677

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

-·
~·

1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

SEP 2 6 1996

.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
MARTY P . BODEN,
Complainant

.:

DISCRIMINATION PROCEEDING
Docket No. WEST 95-417-D

..;

v.
LION COAL COMPANY,
COUGAR COAL COMPANY, successor
to LION COAL COMPANY,
Respondent

..
..

..

Swanson Mine
Mine I.D. 48-00082

DECISION

Appearances:

Kristi L. Floyd, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Complainant;
Brian w. Steffensen, Esq., counsel and registered
agent, Cougar coal Company,
Corporate Secretary, Lion Coal Company,
for Respondent.

Before :

Ju4qe Cetti

This case is before me upon the complaint by the Secretary
of Labor on behalf of Marty P. Boden under section lOS(c) (2) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. S 801
et. seq., the "Act". The· complaint alle?es that Lion Coal
Company (Lion Coal) violated S 105(c) (1) of the Act when it
Section 105(c) (1) in pertinent part provides:
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, oi:: the
representative of the miners at the coal or other mine of an

1678

..

.

discharged Marty P. Boden from his position as belt foreman at
the Swanson Mine. For the reasons discussed below, I find that
Respondent Lion Coal violated section 105(c) (1) when it discharged Mr. Boden in the afternoon of the same day that there had been
an early morning Code-a-Phone inspection of the operator's Swanson Mine. It is undisputed that the Code-a-Phone inspection
resulted from Boden's report to MSHA about unsafe conditions at
the Swanson M.ine.
Liability is also assessed against Respondent, Cougar Coal
Company (Cougar Coal), as the successor to Lion Coal for the
reasons set forth in my decision in Secretary of Labor. on behalf
of Marty P. Boden, v. Lion Coal Company and Cougar Coal Company,
successor to Lion Coal Company . 9 FMSHRC 1620, 1624 (Sept .
1995) .
Having considered the evidence presented at the hearing and
the record as a whole, I find that a preponderance of the substantial, reliable, and probative evidence establishes the
Findings of Fact and further findings in the Discussion below:
FINDINGS OF FACT

1 . At all relevant times, Respondent Lion Coal and its
successor Cougar Coal engaged in the production of coal at the
Swanson Mine and, therefore, each is an operator within the
meaning of section J(d) of the Mine Act.
2. The Swanson Mine is an underground coal mine and is a
mine as defined by section 3(h) of the Mine Act, the products of
which affect interstate commerce.
3. At all relevant times, Marty Boden was employed by
Respondent Lion Coal as a belt foreman and as a miner as defined
by section 3(g) of the Mine Act.
4. Matt Breneman at all relevant times was the mine
superintendent and manager at the Swanson Mine . He was the
person with the highest authority at the mine site and had
authority from the operator of the Swanson Mine to discharge
Boden.
·
5. Marty Boden engaged in protected activity when on
November 7, 1994, Mr. Boden contacted the MSHA offices in Delta,
Colorado, and Arlington, Virginia, to report unsafe working

..
~

alleged danger or safety or health violation in a coal or other
mine 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.

1 679

conditions at the Swanson Mine. Sp~cifically, he complained
about the belt rollers, the rock dusting and the returns.
Boden's phone calls of November 7, 1994, caused MSHA to perform a
Code-a-Phone inspection at the Swanson Mine on November 9, 1994.
6. The Code-a-Phone message had safety complaints that were
the same complaints that Boden had repeatedly made to management .
The mine superintendent Breneman could tell from the complaints
in the Code-a-Phone message that Boden was the one who made the
complaints to MSHA that resulted in the inspection. After the
Code-a-Phone inspection was completed, Matt Breneman talked to
the mine's Board of Directors in Salt Lake City. Board members
put the call on a speaker phone and board members R. Anderson
(Dick), J. Lipscomb and Brian Steffensen participated in the
call. Breneman discussed with them the inspection and the
complaints set forth in the Code-a-Phone mes-sage. In the course
of that conversation, Mr. Steffensen told Breneman to fire Marty
Boden. Immediately on hanging up the phone Breneman discharged
Mr. Boden.
7. Mr. Boden was discharged the afternoon of November 9,
1994, in retaliation for his complaints to MSHA about unsafe
conditions at the Swanson Mine. Boden's complaints to MSHA
resulted in the MSHA Code-a-Phone inspection of the mine on the
morning of November 9, 1994.

a. Boden was discharged for engaging in the above referenced protected activity. No affirmative defense was established.
9. At the time of his discharge on November 9, 1994, Marty
Boden's regular rate of pay was $1,000 - a week.
10. Marty Boden's job at the Swanson Mine, but for his
illegal discharge on November 9, 1994, would have continued up
through April 17, 1995, the date his replacement, Dennis Keller,
was laid off due to lack of work.
11. Because of credit problems, the shareholders of Lion
Coal voted to create Cougar Coal in order to continue . the operation of the Swanson Mine. Cougar Coal was incorporated in the
state of Wyoming on November 29, 1994.
12. On November 29, 1994, Lion Coal sold the company for a
nominal fee and transferred its coal mining business and most of
its assets to the newly formed Cougar Coal Company.
13. After the November 29, 1994, sale and transfer stated
above Cougar Coal continued to mine coal at its Swanson Mine
without a break during the change of the operator from Lion coal
to Cougar Coal.

1680

14.

Cougar Coal is the successor of the Lion Coal Company.

_15. At the August 29, 1995, hearing, Cougar Coal filed a
Notice of Bankruptcy stating that "Respondent Cougar Coal Company
is the Debtor in Possession in Bankruptcy No. 95C-21320, United
States Bankruptcy court for the District of Utah, Central Division. cougar's voluntary petition for relief under Chapter 11 of
the Bankruptcy Code was filed on March 15, 1995." This Notice of
Bankruptcy was handed to Judge Cetti by counsel Brian W. Steffensen while Judge Cetti was sitting on the bench just moments
before going back on the record with the hearing in this matter
at 9 a.m. on August 29, 1995, with the request that it be filed.
(Tr . I of 8/29/95 pg. 8).
16. Counsel Brian w. Steffensen at all relevent times, was
the secretary for Lion Coal and the secretary and a registered
agent for Cougar Coal.
DISCUSSION AND FURTHER FINDINGS

The general principles governing analysis of discrimination
cases under th~ Mine Act are well established. In order to
establish a pri~a facie case of discrimination under section
105(c) of the Act, a complaining miner bears the burden of proof
in establishing that (1) he engaged in protected activity and (2)
the adverse action complained of was motivated in some part by
that protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds sub nom . Consolidation Coal Co . v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co . , 3 FMSHRC 817-18 (April
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 protected activity. If an
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activity alone. Fasula, 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 (O . C.
Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)
(specifically approving the Commission's Fasula-Robinette test).
Cf. NLRB v. Transportation Management corp . , 462 U. S . 393, 397413 (1983) (approving nearly identical test under National Labor
Relations Act).
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal .motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v . Phelps Dodge Corp . , 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.

.

::..·

1681

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (O.c. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
The Eighth Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in NLRB
v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965):
It would indeed be the unusual case in
which the link between the discharge and the
(protected) activity could be supplied
exclusively by direct evidence. Intent is
subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence. Furthermore, in analyzing
the evidence, circumstantial or direct, the
[NLRB] is free to draw any reasonable
inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity,
and coincidence in time between the protected activity and the
adverse action. · Chacon, supra at 2510.
The Secretary presented the testimony of the mine manager
and superintendent Matt Breneman; the belt foreman and Complainant Marty Boden; the MSHA special investigator Leslie Y. Lorenzo;
the former company safety manager Anna Marie Boden; Ron Kalvis, a
shop foreman; Greg Brown, who worked under Boden on . the belts;
Dennis Keller, who took over Baden's duties as belt foreman when
Boden was disch~rged; Ron Hoffman and Tara Whittaker.
The Respondent presented primarily the testimony of management witnesses who testified that they were not satisfied with
Mr. Baden's work performance as belt foreman and were also concerned about his use or possible misuse of a company gas card and
company telephone. Their testimony indicated that Lion Coal
management was in the process of investigating Mr. Baden's work
performance and were planning to make a closer check on his work
performance with the view of possibly terminating his employment
before they became aware of Marty Boden's Code-a-Phone message to
MSHA.
I was impressed with the credibility of the testimony of
Matt Breneman, the mine superintendent and manager of the Swanson
mine. I credit his testimony. He, as well as other witnesses,
testified that the safety complaints in the Code-a-Phone message
were the same complaints that Boden had repeatedly made to management, and he (Breneman) coula tell from the complaints set
forth in the Code-a-Phone message that Boden was the one who made
the complaints to MSHA. After the Code-a-Phone message was
received at the mine and the Code-a-Phone inspection completed,

1682

Matt Breneman in a long distance phone call to Salt Lake City
discussed the matter with the mine's Board of Directors . The
board members put his call on a speaker phone, and R. Anderson
(Dick), J. Lipscomb and Brian Steffensen participated in the
call. Breneman discussed with them the Code-a-Phone inspection
and the complaints set forth in the Code-a-Phone message. In the
course of that conversation Brian Steffensen admittedly told
Breneman that he was "not afraid" to fire Marty Boden. The mine
manager replied he had no reason to fire Boden. Brian Steffensen
then told him to fire Boden for "malfeasance". Breneman hung up
the phone, looked at Boden and said "they want me to fire you"
for "malfeasance." He briefly discussed the situation with Boden
and it was determined that in order not to jeopardize his own
job, Breneman would have to do what he was told to do. He fired
Boden . Boden then immediately left the mine .
The record satisfactorily establishes that the reason given
for firing Boden, "malfeasance", was pretextual. The evidence
presented fails to establish that Boden misused the company gas
card or misused the company phones as asserted by Respondent.
It is worthy of note that Boden had no prior disciplinary
action taken against him nor were there any letters of reprimand
in his personnel file. He received no reprimands or warnings of
any kind . Matt Breneman, Boden's supervisor, was certainly the
person in the best position to evaluate Baden's work and testified that Boden had satisfactorily performed all duties. One of
the miners on Boden's crew, Greg Brown, testified that Boden was
a good supervisor and worked with the crew to get things done.
While it is true that some needed maintenance work was not
performed, the reason being that management would not authorize
the necessary funds. It satisfactorily appears from the record
that Boden did the best job he could do with what he had to work
with .
The preponderance of the evidence established that Boden was
discharged on November 9, 1994, in retaliation for his protected
activity in violation of S 105(c) of the Mine Act.
The purpose of reinstatement is to place a miner~ as closely
as possible, in the situation he would have occupied, but for the
illegal discrimination. Boden w~s employed by Lion coal from
September 1994 through November 9, 1994, as a belt foreman. His
normal rate of pay was $1,000 a week. On his illegal discharge
Boden was replaced by Dennis Keller who took over Baden's job of
supervising the belt crew and his other duties as belt foreman.
Dennis Keller was "laid off" April 17, 1996 due to lack of work
at the Swanson Mine. The mine .was closing down at that time.
The Secretary contends that Boden is entitled to back-pay at his
normal rate of $1,000 a week from November 9, 1994, the date of
his illegal termination, to April 17, 1995, the date Dennis

1683

Keller, who replaced him, was laid off due to lack of work. On
review and evaluation of the evidence of record, I agree with the
Secretary that Boden is entitled to back pay at the · rate of
$1,000 a week for the period from the 9th of November 1994
through the 17th of April 1995.

.··

COUGAR COAL COMPANY, SUCCESSOR TO LIOH COAL COMPANY

It has been established that Respondent Cougar Coal is the
successor to Lion Coal in the case of Lion Coal Company, Cougar
Coal Comoany as successor to Lion Coal company. 17 FMSHRC 1620
(Sept. 1995).
The evidence established that on November 29, 1994, for
$10 . 00 and other consideration, Cougar Coal assumed the right to
the title and an interest in all assets of Lion Coal except for
claims against the Selengos and their affiliates, cash on hand,
current accounts receivable and inventory. (Gov't . Ex . 10-B) .
After the November 29, 1994, transaction, the day-to-day operations at Swanson Mine continued by Cougar Coal without a break.
The mine conti~ued to produce coal . The mine and the appurtenances associated with the mining activities remained the same.
The workforce remained substantially the same. Both Mine
Superintendent Gene Picco and Mine Manager George Herne, who have
been employed at this mine for several years continued their
employment with Cougar Coal .
Mining methods and procedures did not change and the same
jobs were required to be filled. Cougar Coal adopted all of Lion
Coal's MSHA-approved plans and stated that they anticipate no
change in mining practices. Cougar Coal used the same machinery,
equipment and methods of production.
George Herne, mine manager for cougar Coal, in his letter to
the MSHA District Manager under the letterhead of Cougar Coal
Company dated January 13, 1995, stated in relevant part:
Cougar Coal Company has taken over the
operations of the Swanson Mine, ID #48-00082
from Lion Coal Company . At this time Cougar
coal anticipates no change in the mining
practices employed at the Swanson Mine. For
this reason Cougar Coal .Company will continue
to operate under Lion Coal Company's approved
mining plans, and accepts these mining plans
as their own. (Gov't. Ex . 10-A, pg. 4, Tr.
4 79).

In addition, the corporate officers and directors for Lion
Coal Company and Cougar Coal Company are substantially the same
as follows :

1684

I

~

James Lipscomb

- Chairman and President of Lion Coal
company and President of Cougar Coal
Company

Hal Rosen

- Treasurer of Lion Coal Company and
Treasurer of Cougar Coal Company

Richard Anderson - Vice-President of Lion Coal Company and
Vice-President of Cougar Coal Company
Brian Steffensen - Secretary of Lion Coal Company and
secretary and registered agent for cougaz
Coal Company. Brian Steffensen is also
counsel of record who was present and
participated in all proceedings in
this matter.
Thus, under the nine-factor successorship guideline
enunciated Munsey v. Smitty Baker Coal Company Inc., 2 FMSHRC
3463 (1980) Cougar coal is the successor to Lion Coal and, as
such, along wi~h Lion .Coal, is properly subject to joint and
several liability for back-pay to Marty Boden and the civil
penalty for the violation of lOS(c) of the Act.
On consideration of the statutory criteria in section llO(j
of the Act that is relevant in this discrimination case., partic\
larly the financial situation of the Respondents inability to
continue mining, the closure of the mine and the continuing
bankruptcy proceeding of the successor Cougar coal Company, I
conclude the appropriate civil penalty in this case is $400.00.
ORDER
It is ORDERED that the Respondent, Lion Coal Company and
Cougar Coal Company jointly and severally:
1. Pay Marty P. Boden full back-pay with interest for the
period from November 9, 1994, through April 17, 1995, at his
normal rate of pay of $1,000.00 a week less appropriate Federal
and State tax withholding payable to said governmentai agencies.
2 . Expunge from Marty P. Boden's personnel records all
references to his discharge and the circumstances involved in the
discharge.
3. Pay a civil penalty in the amount of $400.00 to the
Secretary of Labor for the violation of section lOS(c) of the
Act.

1685

4. This decision constitutes my final disposit.i on of this
proceeding.

Augu t F. cetti
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)
Brian W. Steffensen, Esq., LION COAL COMPANY, 675 East 2100
South, Suite 350, Salt Lake City, UT 84106 (Certified Mail)
COUGAR COAL COMPANY, 1554 9th Street, Rock Springs, WY 82901
(Certified Mail)

/sh

1686

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

SEP 2.7 1996
JIM WALTER RESOURCES, INC.,
Contestant

CONTEST PROCEEDING
Docket No. SE 96-112-R
Citation No. 4476618; 1/3/96

v.

No . 4 Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Mine ID 01-01247

DECISION
Appearances:

Before:

R. Stanley Morrow, Esq., Jim Walter Resources,
Inc., Brookwood, Alabama for Contestant.
William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama for
Respondent.

Judge Fauver

This is a contest proceeding under § 105 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 .e.t. ~· The
parties have filed cross mo tions for summary decision.

,,

Having considered the stipulations, exhibits, and the record
as a who l e, I f i nd that the record establishes the following
Findings of Fact and further findings in the Discussion below:
FINPINGS OF FACT
1. Jim Walter Resources, Inc. , operates an underground coal
mine, known as Mine No. 4, which produces coal for sale or use in
or affecting interstate commerce.
2. On January 3, 1996, it was operating nonpermissible
diesel-powered buses and locomotives within 150 feet of pillar
workings in the No. 4 Mine. The diesel-powered vehicles
1687

..

contained electrical components including an alternator, battery,
starter, circuit breakers, diodes, fuses, relays, res_istors, and
solenoids.
3. Based upon the above facts, the Secretary issued a
citation charging a violation of 30 C.F.R. § 75.1002.1-(a).
DISCUSSION WITH FURTHER FINPINGS. CONCLUSIONS
General Principles
"Where the language of a statutory or regulatory provision
is clear, the terms of that provision must be enforced as they
are written .... " Utah Power & Light Co., 11 FMSHRC 1926, 1930
(1989); see also Chevron U.S . A .. Inc. v. Natural Resources
Defense Council. Inc . 467 U.S. 837, 842-43 {1984). The "ordinary
meaning of its words prevails, and it cannot be expanded beyond
its plain meaning" (Western Fuels-Utah. Inc., 11 FMSHRC 278,283
(1989) (citing Old Colony R . R. v. Commissioner, 284 U . S. 552, 560
(1932)) .
Under the Mine Act, if a statutory provision is ambiguous or
silent on a point in question, an inquiry is required into the
reasonableness of the Secretary's interpretation.
If the
Secretary's interpretation is found to be reasonable, it is given
deference by the Commission and the courts. Special weight is
given to an agency's interpretation of its own regulation. The
Supreme ' Court has stat~d that the agency's interpretation is "of
controlling weight unless it is plainly erroneous or inconsistent
with the regulation." Bowles v. Seminole Rock & Sand Company,
325 U.S. 410, 414 (1945); and see Ford Motor Credit Co. v .
Mi l hollin, 444 U.S. 555, 566 (1980 ) ; and Secretary of Labor .ez
~. Bushnell v. Connelton Industries. Inc, 867 F.2d 1432, 1433,
1435 (D.C. Cir. 1989). To warrant deference the agency's
interpretation must be consistent with due process. That is, an
agency's interpretation of its regulation cannot be said to be
reasonable if the regulation as in~erpreted fails to give fair
warning of the conduct required or prohibited.

1688

Disposition
Section 75.1002-l(a) provides in part:
(a) Electric equipment other than trolley wires,
trolley feeder wires, high-voltage cables, and
transformers shall be permissible, and maintained in a
permissible condition when such equipment is located
with 150 feet from pillar workings
The controlling issue is whether§ 75.1002-l(a) applies to
Contestant's diesel-powered buses and locomotives.
Section 75.1002 is a verbatim adoption of § 310(c) of the
1969 Coal Mine Health and Safety Act, which was not changed by
the 1977 Amendments to the 1969 Act. Section 310(c) was enacted
to prevent certain nonpermissible electric equipment
(specifically, . "trolley wires and trolley feeder wires, highvoltage cables "-and transformers") from being located with 150
feet of pillar workings. The standard is intended to "prevent
such equipment from being located in the ventilating current
which might contain [explosive] mixtures of gas and [float coal]
dust." 13 F.R. 11777, 11778 (Jun e 14, 1972). Section 310(c) does
not specify other electric equipment, such as electric-powered
vehicles. Because of this omission, in 1972 the Secretary
proposed an amendment to § 75.1002 by adding § 75.1002-1, stating
it was needed because "electric equipment other than trolley
wires trolley feeder wires, high-voltage cables, and transformers
may be located with 150 feet form pillar workings ... and are
subject to the [same) hazards . " 37 F.R. 11777, 11778 {June 14,
1972). The amendment became effective February 23, 1973. 38
F.R . 4974-76.
The Secretary contends that diesel-powered vehicles are
"electric equipment" within the meaning of § 75.1002-l(a) because
they contain electric components, e.g. alternators, batteries,
starters, solenoids, and circuit . breakers, and the vehicles and
components present the same hazards as other nonpermissible
equipment.
This is a case of first impression.
decisions give some guidance.

1689

However, several

In U.S. Steel Mining Company. Inc., 15 FMSHRC 1541 (1993),
the Commission held that "electrical circuits that pe.r form
electrical functions exclusively" and components of such
circuits, such as circuit breakers, are "electric equipment"
within the meaning of§ 75.S12 ·· (which requires examination and
testing of "electric equipment"). The Commission gave deference
to the Secretary's interpretation, which it found to be
reasonable and supported by the definition of "equipment" in the
Institute of Electrical and Electronic Engineers Standard
Dictionary of Electrical and Electronic Terms. 1
In Affiax Coal Company, 16 FMSHRC 1837 (1994), the trial judge
held that "electric equipment" as used in § 75.400 (which
prohibits combustible accumulations "in active workings, or on
electric equipment therein") includes diesel-powered equipment.
The judge's rationale was that "the Congressional concern about
electric equipment as a potential ignition source is equally
applicable to diesel equipment." On appeal the Commission
declined to adopt this rationale. Instead, the Commission
deferred to the Secretary's interpretation, holding that the
phrase "in active workings" includes both a physical area of a
mine and all equipment located within it whether electric or
nonelectric. It thus declined to hold that diesel equipment is
"electric equipment" under the regulation.
In Mettiki Coal Company, 11 FMSHRC 2435 (1989) , I held that
75.512's requirement to inspect "electric equipment" does not
apply to diesel-powered locomotives. I observed that after the
citation was issued, the Secretary proposed a regulation to
require that "all diesel-powered equipment [in underground coal
mines] be examined and tested weekly .. . ", with a preamble
indicating that § 75 . 512 does not apply to diesel-powered
equipment. I also observed that the Secretary's position in
Mettiki was inconsistent with various existing and proposed
regulations, in that wherever the Secretary intended to apply a
standard to "mobile diesel-powered .transportation equipment,"
"diesel-powered equipment," "electrical components on mobile
§

The IEEE Dictionary defines "equipment" as : "A general term
including material, fittings, devices, appliances, fixtures,
apparatus, and the like used as a part of or in connection with,
an electrical installation."
1

1690

diesel-powered transportation equipment," or "All electrical and
diesel-powered equipment," those words were stated in the
regulation or proposed regulation . 2
A striking example is the Secretary's proposed standard for
§ 57.36302 ("Permissible Equipment") which provides in part: "All
electrical and diesel-powered equipment used in or beyond the
last open crosscut shall be permissible. * * * Nonpermissible
electrical and diesel-powered equipment shall be kept at least
150 feet from pillar recovery workings ... . " SO F.R. 23612, 23639
(June 4, 1985). This proposed regulation is inconsistent with
the Secretary's contention that the term "electric equipment" in
§ 75.1002 - l (a ) includes diesel-powered equipment.
Another example is the Secretary's proposed§ 75.1907(a) (1),
which would require that diesel-powered equipment be permissible
if used in locations where permissible electric equipment is
required . The Secretary's position is that "the proposed
standard removes any confusion wh ich may exist as to whether
nonpermissible diesel-powered equipment can operate within 150
feet of the longwall face" (Secretary's counsel's letter,
August 28, 1996 ) .
In light of the confusion in the regulations, I find that
the Secretary's interpretation that diesel vehicles are '\electric
equipment" under § 75.1002-1 (a) is not entitled to special
weight. However, based upon an independent analysis, I conclude
that the prohibition of § 75.1002-l(a ) reasonably applies to
nonpermissible diesel-powered equipment.
Section 75 . 1002 - l(a) supplements § 75.1002 by providing that
"Electric equipment other than trolley wires, trolley feeder
wires, high-voltage cables, and transformers shall be permissible
. . . when located within 150 feet from pillar workings · ... "
(emphasis added) . Because of the focus upon all electric
equipment, the term "electric equipment" in§ 75.1002-l(a)
reasonably includes electric components of diesel-powered
vehicles . This conclusion is supported by the Commission's

See, for example, 30 C.F.·R. §§36.2(a), 36.3-36.6, 36.9,
36.28-36.31, 36.41 and proposed rules published at 54 F.R. 40950
(October 4, 1989), and 50 F.R. 23612 (June 4, 1985).
2

1691

decision in U.S. Steel Mining Company, supra. Since § 75.10021 (a) applies to the electric components of diesel-powered
vehicles, it would be contrary to the logic and safety intent of
the standard to hold that nonpermissible diesel-powered vehicles
may be operated within the restricted area although their
electric components must be kept in permissible condition. It is
axiomatic that an interpretation of a regulation should be
rejected if it produces an absurd result or frustrates the
purpose of the underlying statute. Natural Resources Defense
Council. Inc. v. E,EA, 907 F.2d 1146, 1156 (D.C. Cir. 1990).
Accordingly, I hold that the prohibition of § 75.1002-l(a)
applies to Contestant's diesel-powered vehicles.
CQNCLUSIONS OF LAW
1.

Contestant's No. 4 Mine is subject to the Act.

2. Contestant violated§ 75.1002-l(a) as alleged in
Citation No. 4476618.
ORDER
WHEREFORE IT IS ORDERED that Citation No. 4476618 is
AFFIRMED and this proceeding is DISMISSED.

u)~
' v
William F~ ~
Administrative Law Judge
Distribution:
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box
133, Brookwood, AL 35444 (Certified Mail)

William Lawson, Esq., Office of t~e Solicitor, U.S. Department of
Labor, 150 Chambers Building, Highpoint Office Center, 100
Centerview Drive, Birmingham, AL 35216 (Certified Mail}
nt

1692

ADMINISTRATIVE LAW JUDGE ORDERS

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

June 6, 1996

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

v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 96-98-M
A. C. No . 48-01019-05525A
Gypsum Quarry No . 6

ROGER CHRISTENSEN, EMPLOYED
BY GEORGIA-PACIFIC
CORPORATION,
Respondent
SECRETARY OF LABOR,
MINE SAFE TY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 96-99-M
A. C. No . 48-01019-05526A

v.
JESSE MARTINEZ , EMPLOYED
BY GEORGIA-PACIFIC
CORPORATION,
Respondent

Gypsum Quarry No. 6

ORDER DENYING MOTION TO DISMISS
ORDER ACCEPTING LATE FILING
ORDER OF ASSIGNMENT
These cases are petitions for the assessment of civil
penalties filed by the Secretary of Labor against the individual
respondents, Roger Christensen and Jesse Martinez, under
section llO(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 810(c), hereinafter referred to as the "Act".
The instant cases are based upon a citation dated August 22,
1994, issued to respondents' employer, Georgia-Pacific -Corporation, for an alleged violation of the Act and its ma~datory
standards. A penalty petition was previously filed under section
llO(a) of the Act , 30 U.S.C. § 810(a), against the employer and
that case, Docket No . WEST 95-326 , is presently on stay before
Administrative Law Judge August F. Cetti pending assignment of
these cases .
Respondents have filed motions to dismiss on the ground that
the Secretary has failed to timely file the penalty petitions .
The Secretary filed a response.

1693

On April 5, 1996, the respondents filed a supplement in
support of their motions to dismiss advising that the inspector
who issued the citation for these cases recently died of cancer.
Respondents assert that they are further prejudiced by this
development.
On April 15, 1996, an order was issued directing the Solicitor to respond to the respondents' April 5 supplemental reply and
advise how she wished to proceed in this matter.
On May 15, 1996, the Solicitor advised that a mistake has
occurred and the inspector who issued the citation for these
cases has not died and is available to testify. It remains to be
resolved whether the respondents' original motion to dismiss
should be granted.
On November 13, 1995, the Secretary of Labor issued proposed
penalty assessments against respondents. Thereafter, respondents
filed timely requests for hearing which were received by the
Secretary on December 7, 1995 . The Secretary had 45 days after
the hearing requests to file the penalty petitions. 29 C. F.R.
§ 2700.28 . The petition for Docket No. WEST 96-98-M was filed on
February 6 , 1996, and the petition for Docket No. WEST 96-99 was
filed on February 1, 1996. 29 C.F.R. § 2700.S(d) . The petitions
were due on January 22, 1996, and therefore, were 10 and 16 days
late respectively.
The Solicitor attached a notice to her penalty petitions
stating that the petitions were untimely because the employees of
the Department of Labor together with many other parts of the
Government were placed on furlough from · December 15, 1995, to
January 8, 1996. The Solicitor advises that these cases were
received by the Denver Office of the Solicitor on December 24,
1995, when the office was closed due to the shutdown. When the
office reopened, petitions were filed with the Commission in the
order they were received. In addition, the Solicitor states that
the Secretary requested an extension of time in a letter sent to
the undersigned prior to the shutdown advising that certain
filings would be late due to the shutdown and requesting that the
time for filing be tolled.
In seeking to have these cases dismissed because the petitions were not timely filed within 45 days, respondents argue
that the Secretary has failed to demonstrate adequate cause for
the late filing. Respondents assert that their requests for

1694

hearing were filed one week prior to the furlough and the Government reopened two weeks prior to the date the petitions were due.
According to respondents, they have been prejudiced because the
citation in question was issued over a year and half ago and they
have not had access to all information supporting the petitions .
The arguments of respondents are not persuasive.
The delay
was caused by the three week partial government shutdown which
caused a backup in the Solicitor's work.
When the Government
reopened, it was not just a matter of filing the petitions in these
cases, but of coping with all the work which had not been processed
for the period involved.
The Solicitor's approach of filing
petitions in order of their receipt was fair and reasonable . The
shutdown constituted good cause for the Solicitor's brief delay in
filing the petitions. Secretary of Labor v . Bruce Eaton, Employed
by Austin Powder Company, Docket No . YORK 96-13-M, unpublished
(March 3 1996). See ~, Salt Lake County Road Department,
3 FMSHRC 1714, 1716 (July 1981); Rhone-Poulenc of Wyoming Co . ,
15 FMSHRC 2089 · (Oct. 1989).
Respondents allege they have been prejudiced by the delay in
filing the petitions. Much of the delay occurred between the
issuance of the citation and the Notice of Proposed Assessment,
almost fifteen months.
I previously have held that a seventeen
month delay in assessing penalties against an individual under
section 110(c) does not constitute grounds for dismissal. A
comprehensive investigation and various levels of internal review
are necessary for a proper evaluation of agent liability and the
existence of a knowing violation in a llO(c) case. Secretary of
Labor v. James Lee Hancock, Employed by Pittsburg & Midway Coal
Co., 17 rMSHRC 1671, 1674-1675 (September 1995) . See also, Cedar
creek Quarries et al. , 17 FMSHRC 1509 (August 1995r:- AIS'O,
respondents have furnished no specifics beyond the general
assertion of prejudice. I will not in these cases infer
prejudice solely from the passage of time.
In light of the foregoing, the respondents' motions to
dismiss these cases are DENIED , and i t is ORDERED that the late
filed penalty petitions be ACCEPTED.
It is further ORDERED that these cases be assigned to
Administrative Law Judge Cetti.

1695
·- ·-·--···--· . . .. .

All future corranunications regarding these cases should be
addressed to Judge Cetti at the following address:
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Colonnade Center
Room 280, 1244 Speer Boulevard
Denver, CO 80204
Telephone No. 303-844-3993

___-=-_:----T""\=~
Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
Charles H. Morgan, Esq., Alston & Bird, One Atlantic Center, 1201
West Peachtree Street, Atlanta, GA 30309-3424

Mr . Paul Larson, Production Manager, Georgia-Pacific Corp., P.O.
Box 756, Lovell, WY

82431

Cement, Lime & Gypsum Workers, 161 Washakie, Lovell, WY
/gl

1696

82431

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

August 23, 1996

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 96-245-M
A. C. No . 35-03287-05513

v.
R. J. TAGGART CONSTRUCTION
COMPANY, I NCORPORATED ,
Respondent

Taggart Portable

DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is before me upon a petition for assessment of a
civil penalty under section 105(d) of the Federal Mine Safety and
Heal th Act of 1977.
The parties have filed a joint motion to
approve settlement for the one violation in this case . A reduction
in the penalty from $9,500 t o $6 , 000 is proposed. A fatality is
involved.
Citation No. 3918001 was issued as a 104(d) (1) citation for
a violation of 30 C.F.R. § S6.9200(d) because a miner, who was
being trained on a front-end loader, was riding unsecured on the
outside of the operator's cab. The loader backed over a large
rock causing the miner to fall to the ground. He was run over by
one of the loader tires and killed .

.,
.•

I cannot approve the settlement motion . The parties are
reminded that the Commission and its judges bear a .heavy responsibility in settlement cases pursuant to section 110.(k) of the
Act . 30 U. S . C. § 820(k); See, S . Rep. No . 95-181, 95th Cong., 1st
Sess . 44-45, reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95tilcong . , ' 2d Sess., Legislative ttistory of
the Federal Mine Safety and Health Act of 1977, at 632-633
(1978). It is the judge's responsibility to determine the appropriate amount of penalty, in accordance with the six criteria set
forth in section llO(i) of the Act. 30 U. S . C. ·§ 820(i); Sellers.burg Stone Company v. Federal .Mine Safety and Health Review
Commission, 736 F . 2d 1147 (7th Cir. 1984).

1697

The violation in this case is the ultimate in gravity.
However, the settlement motion fails to discuss any of the facts
surrounding the fatality or identify the reasons for the proposed
reduction. The parties have submitted nothing more than a
boilerplate motion. I cannot approve any penalty for this
fatality when I do not know what happened. There is no excuse
for the Solicitor to submit such a motion which accomplishes
nothing except to create additional and unnecessary work for the
Office of the Chief .Administrative Law Judge.
In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date
of this order the parties submit appropriate information
to support their settlement motion. Otherwise, this case will be
set for hearing.

-

Paul Merlin
Chief Administrative Law Judge

Distribution: (Certified Mail)
Faye von Wrangel, Esq., Office of the Solicitor, U.S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101
Mr. Robert J. Fisher, Accountant, P. O. Box 7298, Salem, OR 97303
Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. S. Department of Labor, Room 414, 4015 Wilson
Boulevard, Arlington, VA 22203
/gl

1698

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

August 26,

SECRET.ARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

199l6

CIVIL PENALTY PROCEEDING
Docket No. KENT 96-252
A. C. No. 15-12602~03584
Preparation Plant

v.
MANALAPAN MINING COMPANY,
INCORPORATED,
Respondent

ORDER ACCEPTING APPEARANCE
DECISION APPROVING PARTIAL SETTLEMENT
DECISION DISAPPROVING PARTIAL SETTLEMENT
ORDER TO SUBMIT INFORMATION
ORDER TO PAY
Before:

Judge Merlin

It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to represent the Secretary in accordance
with the notice of limited appearance he has filed with the
penalty petition. Cyprus Emerald Resources Corporation,
16 FMSHRC 2359 (November 1994).
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. The parties have filed a joint motion to
approve settlements for the five violations in this case . A
reduction in the penalties from $762 to $475 is proposed. 1
The parties propose to settle one of the five violations,
Citation No . 4243577, for the originally assessed penalty of $50.
I have reviewed this violation in light of the six criteria and
determine that this proposed settlement is appropriate.
With respect to the four remaining violations, the parties
propose reductions in the penalties.

1

The CLR has subsequently filed a motion to amend the
settlement to reflect the correct settlement amount as $474
instead of $634. The motion is granted.
1699

Citation No. 4243542 was issued for a violation of 30 C.F.R.
77.401(a) (2) because a bench grinder was not provided with a
tool rest on either grinding wheel. The originally assessed
penalty was $178 and the proposed settlement is $50. The CLR
advises that the grinder was inoperable at the time because the
moto~ was burned out.
Citation No. 4243545 was issued for a
violation of 30 C.F.R . § 77.205 because the steps leading to a
conveyor belt were obstructed with loose coal. The originally
assessed penalty was $178 and the proposed settlement is $125.
Citation No. 4243576 was issued for a violation of 30 C.F.R.
§ 77.401(a) (2) because a tool rest for a Champion Blower Floor
Model bench grinder was not adjusted as close as practical to the
wheel. The originally assessed penalty was $178 and the proposed
settlement is $125 . Citation No. 4243581 also was issued for a
violation of 30 C.F.R. § 77.401(a) (2) because the tool rest for a
Queen City Floor Model grinding machine was not as close as
practical to the wheel. The originally assessed penalty was $178
and the proposed settlement is $125. The CLR advises that the
significant and substantial designations and negligence find{ngs
for all these violations remain unchanged.
§

I cannot approve the settlement motion as submitted for
these four violations.
The parties are reminded that the Commission and its judges bear a heavy responsibility in settlement
cases pursuant to section llO(k) of the Act. 30 U.S.C. § 820(k);
See, s. Rep. No. 95-181, 95th Cong., 1st Sess. 44-45, 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 632-633 (1978).
It is the
judge's responsibility to determine the appropriate amount of
penalty, in accordance with the six criteria set forth in section
llO(i) of the Act. 30 U. S.C. § 820(i); Sellersburg Stone
Company v. Federal Mine Safety and Health Review Commission, 736
F.2d 1147 (7th Cir. 1984). A proposed reduction must be based
upon consideration of these criteria.
The parties offer an explanation for the reduction proposed
for Citation No. 4243542, but the recommended penalty amount of
$50 for this citation is usually reserved for non-significant and
substantial violations. As noted above, the parties do not
request any modification and maintain that the violation remains
significant and substantial. However, the explanation offered
for the reduction would support a modification deleting
significant and substantial.

1700

With respect to the other three violations , Citation Nos .
4243545, 4243576 and 4243581 where a reduction from. $178 to $125
is sought for each, there are no reasons or recommendations to
support the reductions.
This motion is atypical. Conference and Litigation
Representatives routinely submit detailed motions which support
their recommendations.
In light of the foregoing , it is ORDERED that the motion for
approval of settlement for Citation No. 4243577 be APPROVED .
It is further ORDERED that the motion for approval of
settlements for Citation Nos. 4243542, 4243545, 4243576 and
4243581 be DENIED.
It is further ORDERED that within 30 days of the date of
this order the parties submit appropriate information to support
their settlement motion for Citation Nos . 4243542, 4243545,
4243576 and 4243581 . Otherwise, this case will be set for
hearing.
It is further ORDERED that within 30 days of the date of
thi s order the operator PAY the $50 penalty for Citation No .
4243577.

Paul Merlin
Chief Administrative Law Judge
Distribution :

(Certified Mail)

Ronnie R. Russell, Conference & Litigation Representative, U.S.
Department of Labor, MSHA, HC 66, Box 1762, Barbourville, KY
40906
Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U.S . Department of Labor, 4015 Wilson Blvd . , Suite
414, Arlington , VA 22203

1701

Mr. Richard D. Cohelia, Safety Director, Manalapan Mining Co.,
Inc., P.O. Box 311, Brookside, KY 40801-0311
/gl

1702

FEDERAL HINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
September 4, 1996

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

v.
NEWMONT GOLD COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
:

..

Docket No. WEST 95-434-M
A. C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C. No . 2 6-00500-55443
South Area - Gold Quarry

ORDER DENYING MOTION TO DEEM ADMISSIONS ADMITTED
The Secretary filed a motion entitled "Motion to Deem
Admissions Admitted and to Allow Adverse Inferences or, in the
Alternative, to Continue Trial." In the motion, the secretary
states that Newmont Gold Compa ny {"Newmont") failed to respond to
his discovery requests . He states that he needs this information
in order to prepare for hearing set to commence on October 16,
1996. The Secretary asks that he be allowed to draw adverse
inferences from Newmont's failure to respond, and specifically
asks that all of the Secretary's requests for admission be deemed
admitted. In the alternative, the Secretary asks that the
hearing in these cases be continued.
Newmont filed answers to the Secretary' s discovery requests
on August 26, 1996. Newmont states that on July 31, 1996, it
informed the Secretary that it would need more time to respond to
these discovery requests because of the number of requests made
and the complexity of the requests. The Secretary's motion was
received by my office on August 20, 1996 .
Given the fact ·that Newmont has · now responded to the discovery requests and that these requests were complex and
numerous, the Secretary's motion is DENIED. The Secretary's
request for a continuance is also DENIED. Because the hearing is
a little over a month away, the parties SHALL make every effort
t<:> respon~ to discovery as soon as possibl7 . _:i; .~.am--av-.\dlable to
discuss, in a conference call, whet
a disc6very c
off date
should be established, if the
i
one.

Richard W. Manning
Administrative Law Judge

1703

FEDERAL MINE SAFETY AND HEALTH RBVJ:EW COMMISSION
1244 SPEER BOULEVARD #.280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
September 4, 1996

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

v.
Nfil:t"MONT GOLD

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-434-M
A.C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C . No. 26-00500-55443

COMPA?~Y,

Respondent

South Area - Gold Quarry

ORDER DENYING MOTION TO COMPEL
ORDER DENYING CROSS-MOTION FOR PROTECTIVE ORDER
The Secretary of Labor filed a motion to compel Newmont Gold
company ("Newmont") to answer his discovery requests. Newmont
filed a response in opposition to the Secretary's motion and a
cross-motion for a protective order. The Secretary filed a
response to Newmont's cross-motion. For the reasons set forth
below, I deny both motions.
I.

Motion to Compel

The Secretary's motion to compel seeks responses to his
first set of discovery requests, which include 35 requests for
admission, 30 requests for the production of documents, and 30
interrogatories. These requests were made on June 28, 1996.
Newmont filed answers to these discovery requests on August
26, 1996.
In response to the Secretary's motion, Newmont states
that on July 31, 1996, it informed the Secretary that it would
need more time to respond to these requests because of the number
of requests made and the complexity of the requests. The motion
to compel was received by my office on August 1, 1996.
Given the fact that Newmont has now responded to the discovery requests and that these requests were complex and numerous, I deny the Secretary's motion to compel.
The Secretary's motion also asks that I compel Newmont to
answer his second set of discovery requests. This part of the
Secretary's motion is discussed below.

1704

II.

Cross-Motion for Protective Order

Newmont filed a cross-motion for a protective order to
prohibit the Secretary from engaging in ex parte contacts with
Newmont employees and requiring the Secretary to disclose all
previous ex parte contacts. In the cross-motion, Newmont asserts
that counsel for the Secretary communicated with Newmont employees about these proceedings despite the fact that counsel knew
that Newmont is represented by an attorney. Counsel for Newmont
states that such communications were unethical because they
violated the ABA Model Rules of Professional Conduct. Newmont
cites a number of cases where courts imposed protective orders to
prevent opposing counsel from conducting ex parte interviews with
current employees of the corporate party. Newmont requests that
the protective order cover all Newmont employees, including
hourly employees.
In response, the Secretary argues that the Secretary may
"ethically contact rank and file, non-agent, non-supervisory
employees of mine operators" without the permission of counsel
for the operator. (Sec. Response at 2-3). He also contends that
he is authorized by the Federal Mine Safety and Health Act to
directly contact miners without the permission of counsel for the
operator. Finally, counsel for the Secretary states that she did
not violate ethical standards by sending a letter to two of
Newmont's employees.
It is clear that counsel for the Secretary sent a form
letter to two Newmont employees. The letter states that the
employees gave statements to an MSHA investigator and that the
Secretary's attorney needs to discuss "the health conditions
during - your employment with Newmont, particularly with regard to
the exposure of mercury •.•. " (Cross-motion, Attachment 1) The
letter asks the employee to fill out an enclosed form and return
it to the Secretary. The form requests the_ address, day phone
number, and evening phone number of the e.m ployee. The two
particular employees may be salaried employees, but that is not
entirely clear. Neither employee returned the enclosed form.
Newmont correctly states that the Mine Act holds a mine
operator strictly liable for safety and health conditions at its
mine. As a consequence, it argues that any Newmont employee,
including the two subject employees, could potentially take
actions or make statements to the Secretary that could impute
liability to Newmont under 30 u.s.c. § 820(a), setting forth
civil penalties, and section 820(d), setting forth criminal
penalties. Newmont cites Rochester and Pittsburgh Coal Co., 13
FMSHRC 189, 194 (February 1991), in which the Commission stated
that "a rank-and-file employee •·.. is an agent of an operator
when carrying out the required examinations entrusted to him by
the operator."

1705

The parties thoroughly briefed this issue. The above
summary does not include all of the arguments made. I agree with
the Secretary's position on this issue, as set forth at pages 1
through 22 of his response t~ Newmont's cross-motion. I find
that counsel for the Secretary did not engage in unethical
conduct when she sent letters to Newmont employees who had given
statements to the MSHA special investigator. The ca~es cited by
Newmont involved private parties. The ethical standards with
respect to ex parte contact differ when the party involved is a
federal enforcement agency, such as the Department of Labor. The
U. S. Department of Justice has developed ethical standards that
its attorneys are required to follow when contacting employees of
a represented corporation. The standard provides that a government attorney should not contact a current employee of a represented party if the employee is a controlling individual.
28
c.F.R. § 77.lO(a). A controlling individual is defined as "a
current high level employee who is known by the · government to be
participating as a decision maker in the determination of the
organization's legal position in the proceeding." Id. The preamble to this rule states that "organizations should not be
shielded from effective criminal and civil law enforcement
prosecution simply by retaining counsel."
(59 Fed. Reg. 39910,
39924, as quoted in Sec. Response at 4-5). I find that the
general principles established by the Department of Justice are
applicable to these cases.
The Secretary states that it does not intend to contact
"managers, supervisors, or agents of the respondent."
(Sec.
Response at 7). The Secretary further states that he will not
consider the acts or omissions of the miners that he wants to
contact to be "legally imputed" to Newmont or their statements to
be "admissions" binding on Newmont. Id.
The Secretary contends
that a rank-and-file miner becomes an agent of the operator only
if the operator delegates a specific statutory duty to the miner
and then only to the extent the miner is acting within the scope
of this specific duty.
Finally, the Secretary states that he
"has no intention or desire to contact, even in a preliminary
way, the respondent's agents, supervisors, or managers outside of
the formal discovery process." Id . at 23.
The Secretary has considerable enforcement authority under
the Mine Act. Part of this autho~ity includes the right to
confer with miners about safety and healtb conditions at the
mine.
30 u.s.c. § 813. The Secretary is not required to obtain
the operator's prior approval before discussing health or safety
conditions with miners. The Mine Act defines a miner as "any
individual working in a coal or other mine." 30 u.s.c. § 802(g).
The Commission's rules of procedure recognize this right by
prohibiting its judges from disclosing or ordering the Secretary
to disclose to a mine operator or his agent the name of an
informant who is a miner. 29 C.F.R. § 2700.61.

1706

I conclude that Newmont's arguments set forth in its crossmotion for a protective order lack merit. As stated above, I
base my conclusion on the Secretary's arguments set forth in his
response to the cross-motion, · which I have briefly summarized
above.
Counsel for the secretary may informally contact Newmont
employees who are not "agents, supervisors, or managers" of the
company.
III. Conclusion and Order
Given my ruling set forth above, Newmont has several
options. First, it can rely on counsel for the Secretary's
assurance that she will not informally contact its agents,
supervisors, or managers. I conclude that this assurance was
made in good faith and note that this has been the Secretary's
policy under the Mine Act. Second, Newmont may instruct its
agents, supervisors and managers not to discuss the issues raised
by these cases with representatives of the Secretary. Third,
Newmont may respond to the Secretary's second discovery request
by providing counsel with names and other pertinent information
about those employees that Newmont believes are agents, supervisors, or managers of the company. I will resolve any disputes
if the Secretary believes that one or more of the individuals
listed is not an agent, supervisor, or manager of the company.
Because I have ruled in favor of the Secretary with respect
to Newmont's cross-motion for a protective order, I deny the
Secretary's motion to compel with respect to his second discovery
request. As a result of my ruling, the Secretary does not need
this information. Newmont may provide all or part of such information as it wishes, as described above. Of course, I expect the
counsel for the Secretary to adhere to her assurance that she
will not attempt to informally contact Newmont's agents, supervisors, or managers, and that when she contacts an employee she
will first determine whether the individual is an agent, supervisor, or manager before she proceeds any further . If she
determines that the individual is an agent, supervisor, or
manager, she shall terminate the informal contact.
I also
expect the Secretary to follow, as applicable, the principles
established by the Department of Justice at 28 C.F . R. ·s
77.9(a){l) and (b). Finallyt Newmont should understand that if
an agent, supervisor, or manager initiates an informal contact
with the Secretary, such person may be. an informer entitled to
the protection of 29 C.F.R. § 2700.61. See also, 28 C.F.R. §
77.lO(e).

1 707

For the reasons set forth above, the Secretary's motion to
compel is DENIED and Newmont's cross-mot~on for a protective
order is DENIED.

Richard W. Mannin
Administrative Law

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson st., Suite 1110, San Francisco, CA 941052999
Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
RWM

1708

FEDERAL HINE SAFETY AND HEAL'l'H REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

September 9, 1996

CIVIL PENALTY PROCEEDINGS

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

Docket No . WEST 95-434-M
A.C. No. 26-00500-05542

v.

Docket No. WEST 95-467-M
A.C. No. 26-00500-55443

NEWMONT GOLD COMPANY,
Respondent

South Area - Gold Quarry

ORDER GRANTING, IN PART,
SECRETARY'S MOTION FOR A PROTECTIVE ORDER
on August 13, 1996, the Secretary of Labor filed a motion
for a protective order. On August 26, 1996, Newmont Gold Company
("Newmont") filed a motion to dismiss, or in the alternative, to
compel and for lesser sanctions ("motion to dismiss"). Newmont
answered the Secretary's motion for a protective order in its
motion to dismiss. On September 6, the Secretary filed his
response to Newmont's motion to dismiss.
Both the Secretary's
motion for a protective order and Newmont's motion to dismiss
involve events that occurred at depositions of MSHA employees
that Newmont scheduled for the week of July 22, 1996, in
Vacaville, California.
Both motions accuse the other side of acting in bad faith at
the depositions. The Secretary alleges that counsel for Newmont
harassed the deposition witnesses, asked personnel questions of
these witnesses that were beyond the scope of discovery, improperly sought advisory opinions from witnesses, and improperly
sought to exclude the Secretary's technical advisor from the
depositions. Newmont alleges that the Secretary improperly
terminated the Vacaville depositions at great cost to Newmont.
Newmont alleges that the Secretary applied insupportable, all
encompassing definitions of evidentiary privileges that prevented
the witnesses from answering legitimate questions.
Although each motion relies on the opposing party's conduct
at the Vacaville depositions to support its arguments, I find
that the two motions raise different legal issues and I conclude
that I should issue a separate order for each motion.
In the
present order, I enter my ruling on the Secretary's motion.
I
will rule on Newmont's motion shortly.

1709

I.

Background

The Commission's rules of procedure provide that upon motion
of a party or upon his own motion, "a judge may, for good cause
shown, limit discovery to prevent undue delay or to protect a
party or person from oppression or undue burden or expense." 29
C.F.R. S 2700.56(c). This provision empowers the judge to
consider a motion for a protective order and grants considerable
discretion to the judge to regulate the course of discovery.
See, also Fed. R. civ. P. 26(c) & 30(d}; 29 C.F . R. § 2700 . 55.
Newmont scheduled the deposition of seven MSHA employees .
It appears that the depositions were contentious from the start.
Apparently, counsel for the Secretary terminated the depositions
on July 25, 1996, before they were completed. The issues raised
by the Secretary in his motion concern the conduct of Newmont's
counsel at the depositions . Each of the Secretary's requests are
discussed separately below.
II.

Deposition of MSHA Inspector Jaime Alvarez

The Secretary contends that Newmont asked questions of
Inspector Alvarez that were intended to personally humiliate and
embarrass him and were beyond the scope of prior acts related to
credibility. Counsel asked a number of personal questions that
were designed to test the credibility of the witness . Before he
asked these questions, counsel for Newmont told Mr. Alvarez that
some of his questions "may sound somewhat personal," but advised
him not to "take it that way." (Alvarez Depo. at 21). The
questions that were the most objectional to the Secretary
include: "Have you ever bounced a check?," "When was the last
time you told what is commonly known as a lie, an untruth?," "Do
you consume alcohol?," "Isn't it a fact that you have consumed
illegal substances within two or three days of the conduct of an
inspection?," and "Have you ever submitted false expense
reports?" (Sec. Motion at 4; Alvarez Depo. at 25, 42-44). The
Secretary contends that counsel for Newmont engaged in a series
of such personal questions ~hat had no "legitimate purpose and
were obviously asked in bad faith and in a manner to unreasonably
annoy, embarrass, oppress, and humiliate the witness." (Sec.
Motion at 5).
A party is generally permitted to inquire into issues of
credibility during a deposition. Such inquiries, however, should
be limited to questions that "may reveal information affecting
the credence afforded to a witness' trial testimony." Davidson
Pipe Co . v. Laventhol and Horwath, 120 F . R.D. 455 , 462 (S.D.N.Y.
1988). Thus, the questions must be designed to obtain information that has some bearing on the credibility of a witness.

1710

In Davidson, the court set forth five factors for analyzing
whether deposition questions relate to the witness's credibility.
First, the prior acts that are being examined "must 'demonstrate a
propensity for deception . " Id. Personal habits or a history of
getting into trouble during high school, for example, do not
demonstrate a propensity for deception. Second, the prior acts
must have occurred "in a context where there is a premium on
veracity." Id. Thus, prior incidents of deception that are
"unimportant or excusable" are not probative of veracity. Id. at
463. Asking a witness whether he has ever lied is too broad
because the question is not limited to situations where veracity
is important. The third factor is the "lapse of time between the
prior act and the .•• testimony." Id. Questions about incidents
in the distant past should not be asked unless they are very
probative of the witnesses truthfulness. A conviction for
submitting false tax returns twenty years earlier would be
probative, while the fact that the witness misstated his age on
an employment application twenty years earlier would not.
The forth factor is the relationship between "the subject
matter of the prior deceptive act and that of the instant
litigation." Id. As "the connection becomes more attenuated, so
does the probative value of the evidence." Id. The final factor
in "determining whether credibility-related discovery is appropriate is whether the party seeking disclosure has a foundation
for its inquiry." Id. "This consideration is not concerned with
the admissibility of the evidence sought; rather, it involves the
question of whether there is a reasonable likelihood that any
pertinent evidence will be elicited." Id. The inquiring party
must have "a factual basis for believing that prior acts of
deception will be revealed." Id.
This factor is designed to
prevent "fishing expeditions" into credibility issues.
I find that many of the questions posed by counsel for
Newmont do not pass the Davidson test . In reaching this
conclusion, I do not imply that such questions were asked in bad
faith. Rather, I find that many of the questions have little
bearing on credibility. For example, whether a witness has
consumed alcohol is not probative of truthfulness. It is not
clear whether counsel for Newmont had a "factual basis." for
believing that prior acts of deception would be revealed. In his
response to the Secretary's motion, counsel for Newmont states
that his questions "were perfectly appropriate in that Newmont
believes that [Inspector Alvarez] lied under oath ••.• " (Newmont
response at 26). Newmont states that the factual basis for this
conclusion is that the inspector could not recall receiving a
copy of a particular memorandum that lists his name as a
recipient. Id. at 26-27. Newmont alleges that the inspector
knew of the memorandum because he saw it and distributed it
within the past 18 months. I find that the inspector's testimony
does not provide a proper foundation for a belief that he lied
under oath. Newmont cannot use this testimony as a basis to ask

1711

unfocused questions, such as "When was the last time you remember
bouncing a check?," or "What's the last time you remember lying?"
(Alvarez Oepo. at 25). In addition, it .does not appear that
Newmont had any foundation for asking other questions, such as,
"Isn't it a fact that you have consumed illegal substances within
two or three days of the conduct of an inspection?" Such a
question should not be asked without some factual basis for
making the allegation.
Newmont is permitted to question a witness's credibility at
a deposition. It is not my intention to frustrate Newmont's
ability to probe the veracity of a witness.
Nevertheless, the
questions must seek information that has some bearing on credibility. Accordingly, IT IS ORDERED that at any future depositions, the attorney conducting the deposition SHALL heed the
factors set forth in Davidson when posing questions designed to
inquire into the witness's credibility.
III. Manner of Conducting Depositions
The Secretary contends that the "Secretary's witnesses and
counsel should be protected against rudeness, threats, and
intimidation by Respondent's counsel that were unduly oppressive
and burdensome during depositions." (Sec. Motion at 9). The
Secretary argues that the "overall tone and manner" of Newmont's
counsel "was clearly within the prohibited conduct contemplated
by" the Commission's rules and the Federal Rules of Civil Procedure. Id.
The Secretary contends that Newmont's counsel threatened the
Secretary's witnesses and counsel with sanctions on 12 occasions.
The Secretary alleges that counsel for Newmont ref erred to
Inspector Alvarez as a "liar" in front of the witness. The
Secretary also states that counsel for Newmont threatened to
report MSHA personnel to the Department of Labor's Office of the
Inspector General under certain circumstances. Finally, the
Secretary alleges that counsel for Newmont snooped around the
MSHA Vacaville off ices while he was there. As result, the
Secretary asks that I directly supervise all future depositions.
Counsel for Newmont contends that the Secretary prohibited
his witnesses from answering legitimate deposition questions by
improperly imposing objections on the basis of various privileges
and states that he was simply trying to get the Secretary to
cooperate. He alleges that the Secretary's attorneys failed to
conduct themselves "in accordance with civility and in accordance
with the Rules of Professional Responsibility and the applicable
Rules of Procedure." (Newmont response at 26).
It is quite clear from reading the transcript that the
depositions degenerated into a test of wills very quickly. It is

1712

possible for an attorney to represent his or her client
vigorously while maintaining a civil, professional, .and cordial
manner. I did not review the transcript to determine if and when
Newmont's counsel overstepped the bounds of professional conduct.
I will not "baby-sit" counsel during depositio~s.
The issues raised in this part of the Secretary's motion are
intertwined with the issues raised in Newmont's motion to dismiss, including the terms and conditions of any future depositions. I will rule on these issues in my order concerning
Newmont's motion to dismiss. Accordingly, IT IS OR.DERBD that
counsel for the parties SHALL conduct themselves in a civil,
professional and cordial manner in any future depositions and at
the hearing in these cases.
IV.

Hypothetical Questions

The Secretary contends that "Respondent should be prevented
from seeking advisory opinions from MSHA regarding the consequences of future, hypothetical violations of the Mine Safety and
Health Act." (Sec. motion at 11). The Secretary states that
many of the questions at the depositions concerned "abstract,
hypothetical issues of possible future MSHA violations" that do
not relate to the dispute between the parties in these cases.
Id. The Secretary argues that these inquiries, "involving the
application of law to theoretical future factual scenarios, were
outside the scope of permissible discovery and were excessive and
burdensome." Id .
The Secretary points to a series of questions asked of Paul
Belanger . The Secretary asserts that Mr. Belanger "was asked a
four part question regarding one hypothetical bead of mercury
inside the Newmont 'boneyard' on a piece of equipment, and was
asked to consider nine factors in evaluating his advisory
opinion." (Id.; Belanger Depo. at 47-62). The Secretary also
alleges that Mr. Belanger was asked a significant number of other
questions concerned unrelated matters, such as what citations
might be issued for not posting and barricading loose ground.
The Secretary contends that such questions were outside the scope
of discovery as they do not concern matters reasonably calculated
to lead to the discovery of admissible evidence. He objects to
questions seeking an advisory opfnion on these issues .
It appears that the Secretary's concern is not that some
hypothetical questions were asked, but that "the examination of
witnesses on such abstract issues extended for hours at a time,
which was unduly annoying and oppressive to the Secretary's
witnesses." {Sec. motion at 13). The Secretary acknowledges
that the subject matter for discovery is broadly construed, but
contends that Newmont's counsel "went beyond the most liberal
interpretation of that standard with his theoretical questions."

1713

Id. He contends that a "protective order restraining counsel
from further questions of this nature is appropriate and
necessary." Id.

"A trial court has a duty ••• to supervise and limit
discovery to protect parties and witnesses from annoyance and
excessive expense." Dolgow v. Anderson, 53 F.R.D. 661, 664
(E.D.N.Y. 1971). This discretion to limit discovery is
"necessarily broad." Id.
In this instance, I find that such limitations are required.
MSHA's witnesses are not in the position to give advisory
opinions. Presenting an MSHA employee with a broad or complicated hypothetical question is unlikely to lead to the discovery
of admissible evidence particularly if the hypothetical is not
closely related to the facts of the case. First, each MSHA
witness is likely to give different answers to a series of broad
or complicated hypothetical questions. Each answer is simply the
opinion of one employee and does not necessarily reflect the
Secretary's position. Second, a series of hypothetical questions
that are not tied to the facts of the case will simply elicit an
off-the-cuff opinion from the witness because he does not have
the opportunity to think about the issue or talk about it with
his supervisors. The response of the witness may not be the same
if he faced the "hypothetical" situation during an actual MSHA
inspection. Thus, the answer to the question is likely to be
meaningless . Finally, a series of lengthy hypothetical questions
that involve close questions of law and policy are overly burdensome. A single MSHA employee is simply not in a position to
answer such questions.
I understand why Newmont wants to probe the boundaries of
the Secretary's interpretation of the cited standards. such
inquiries are permissible so long as the questions are calculated
to lead to the discovery of admissible evidence. Broad or complicated hypothetical questions that are not rooted in the facts
at issue do not accomplish this result.
Accordingly, IT XS ORDERED that counsel for Newmont, in any
future depositions, SHALL refrain from asking a series of broad,
complicated, or lengthy hypothetical questions of MSHA witnesses
that do not relate directly to the facts at issue in these proceedings.
'
V.

Informant's Privilege

The Secretary states that during the deposition of Inspector
Drussel, after counsel for the Secretary asserted the informant's
privilege, counsel for Newmont continued to ask for information
about Newmont employees who may have discussed the matter with

1714

the inspector. The Secretary asserts that the questions were
designed to reveal identifying information regarding informants.
The deposition transcript reveals that counsel for Newmont
asked numerous questions about who Inspector Drussel talked to in
March 1995 when he determined that the ZADRA off ice was used as a
lunchroom. The Secretary objected on the basis of the informa~ ~'s privilege.
~ounsel tor Newmont continued to ask questions
that, if answered, might reveal the identity of an informant,
such as who the inspector met with or talked to during his
inspection.
The Commission 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 a statement, that is protected, unless disclosure of the contents would
tend to reveal the identity of an informant. Asarco, 12 FMSHRC
2548, 2554 (Deqember 1990), citing Roviaro v. United States, 353
U.S. 53, 60 (1957). Under Commission Rule 2700.61, a judge shall
not order a person to disclose the name of an informant who is a
miner. A miner is defined as "any individual working in a coal
or other mine." 30 u.s.c. § 802(g).
Accordingly, IT IS ORDERED that counsel for Newmont, in any
future depositions, SHALL refrain from asking Inspector Drussel
or other MSHA officials for the names or titles of miners that
met with or talked to MSHA officials.
VI.

Attendance at Depositions

At the July depositions, the Secretary sought to have Paul
Belanger present as a technical representative. Mr. Belanger was
also scheduled to be deposed by Newmont. Newmont wanted to
exclude Mr. Belanger until his deposition was completed. When
the parties contacted me, I inquired as to whether Mr . Belanger's
deposition could be held first so that his testimony could be
taken before the testimony of the other MSHA witnesses. The
parties informed me that it would be difficult to rearrange to
order of depositions. On that basis, I ruled that Newmont could
exclude Mr. Belanger until his deposition was completed.
In the motion, the Secretary asks that Mr . Belanger be
permitted to attend future depositions of MSHA witnesses. The
Secretary states that he needs Mr. Belanger at the depositions to
provide technical assistance . The Secretary also states that
Newmont deposed Mr. Belanger in July but that Newmont did not
release him because it stated that Mr. Belanger's deposition is
"continuing" in nature.
(Sec. motion at 17).

1715

The Secretary has the right to have its technical representative at the depositions of MSHA witnesses. Newmont was
given the opportunity to depose Mr. Belanger in July. Accordingly, IT IS ORDBRBD that the Secretary SHALL be permitted to
have Mr. Belanger present at depositions of MSHA employees as his
technical representative . If it so chooses, Newmont may complete
the deposition of Mr. Belanger before it deposes other MSHA
witnesses.
VII. Conclusion and Order
The Secretary's motion for a protective order is GRAN'l'BD to
the extent set forth above. Requests for relief not granted in
this order are DENIED.

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 941052999
Henry Chajet, Esq . , PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
RWM

1716

FEDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
September 13, 1996

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-434-M
A.C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C. No . 26-00500-55443
South Area - Gold Quarry

ORDER DENYING IN PART AND GRANTJ:NG 1'.N PART
NEWMONT'S MOTION TO DISKJ:SS

On August .26, 1996, Newmont Gold Company ("Newmont") filed a
motion to dismiss, or in the alternative, to compel and for
lesser sanctions ("motion to dismiss"). The Secretary of Labor
filed his opposition to Newmont's motion to dismiss on September
6, 1996. In the motion to dismiss, Newmont moves for an order
"(1) dismissing this action on the grounds that the Secretary
improperly terminated Respondent's depositions or, in the
alternative, to require the continuation of the depositions at
Respondent's counsel's office in Washington, D.C. at the
Secretary's expense; (2) requiring the Secretary's witnesses to
answer deposition questions previously objected to on the grounds
of the informant's and deliberative process privileges; and (3)
compelling the Secretary to disclose all attorney-client
communications and other documents subject to the deliberative
process and work product privileges, on the grounds that the
Secretary has affirmatively waived those privileges." (Newmont
Motion at 1) •
I.

Background

on July 22, 1996, counsel for Newmont, his technical
advisor, and Newmont's corporate safety director traveled to
Vacaville, California to take the depositions of seven employees
of MSHA. Newmont alleges that at the depositions its counsel was
"confronted with a barrage of unfounded objections and improper
instructions to the witnesses not to answer questions . " (Newmont
Motion at 2) . Newmont states that counsel for the Secretary
"repeatedly instructed the witness not to answer questions about
what documents h~ had reviewed to prepare for the deposition,
with whom (outside the Solicitor's office) the witness had shared
the documents, and other non-privileged areas of inquiry." Id.
1 71 7

at 6. Newmont contends that the Secretary's attorneys applied
and insupportable, all encompassing definition of pr.ivileges that
precluded the witnesses from answering questions about anyone
they had ever talked to about the inspection or the policies at
issue. Newmont alleges that the two solicitors "abandoned civ il
and courteous conduct" by interrupting Newmont's counsel.
Finally, Newmont maintains that "in the midst of Mr. Alvarez's
deposition ••• the Secretary's counsel inexplicably 'walked out'
and refused to conduct any of the remaining depositions . " Id.
Newmont also contends that the Secretary waived any privileges that it might assert in these cases concerning MSHA
policies with respect to mercury because MSHA "voluntarily and
knowingly disclosed to the public two internal attorney-client
communications relating to mercury citations." Id. at 7. It
maintains that the Secretary has waived the attorney-client,
deliberative process, and work product priv ileges as a result of
these disclosures.
As a consequence of the Secretary's actions in these
proceedings, Newmont requests that the cases be dismissed and
seeks other alternative relief. Each of Newmont's points are
discussed separately below.
II.

Request to Dismiss Proceedings

Newmont recognizes that it is seeking extraordinary relief:
the dismissal of the Secretary's case. It states, however, that
a case may be dismissed if a plaintiff willfully or in bad faith
thwarts legitimate discovery. As described above, Newmont states
that the Secretary prevented it from asking legitimate questions
of MSHA witnesses and then term.inated the depositions without
reason.
It maintains that the Secretary's "repetitions obstructive tactics" should result in sanctions and that dismissal is an
appropriate sanction in these cases.
(Newmont Motion at 9).
Newmont contends that the Secretary continued to instruct its
witnesses not to answer questions on the basis of the deliberative process privilege after the judge ruled that the Secretary's application of the privilege was overly broad.
The Secretary maintains that his "decision to terminate the
depositions, after five warnings to counsel for Respondent, does
not involve misconduct" that warrants the dismissal of a case.
(Sec . Opposition at 2} . He also contends that dismissal is not
justified on the basis that he continued to assert privileges.
The Secretary states that its assertion of privileges should not
be "characterized as willful or deliberate disobedience of a
court order." Id . The Secretary maintains that his only means
of preserving the privilege was to instruct the witnesses not to
answer privileged questions. He states that his conduct at the
depositions was not willful or in bad faith.

1718

When an objection is made at a deposition, the deponent is
ordinarily required to answer the question with the objection
noted in the record. "A party may instruct a deponent not to
answer only when necessary to prese.r ve a privilege, to enforce a
limitation on evidence directed by the court, or to present a
motion under paragraph (3)." Fed. R. Civ. P. 30(d). Paragraph
(3) of this rule provides that "[a]t any time during a deposition, on motion of a party ••. and upon a showing that the
examination is being conducted in bad faith or in such a manner
as unreasonably to annoy, embarrass, or oppress the deponent or
party, the court ... may order the officer conducting the examination to cease forthwith from taking the deposition, or may
limit the scope and manner of taking the deposition .... "
In this case the Secretary terminated the deposition without
permission of the court. Ordinarily, that could be an indication
of bad faith.
In this instance, I was not available because I
was on vacation at the time of the depositions and could not be
reached.
Fed. R. Civ. P. 37 empowers Federal District Courts to
"impose the extreme sanction of dismissal or default where there
has been flagrant, bad faith disregard of discovery duties."
Wanderer v. Johnson, 910 F.2d 652, 656 {9th Cir . 1990) (citation
omitted). Under the facts of these cases, I find that the
Secretary's actions were not flagrant and were not taken in bad
faith, as discussed below.
From the start, the subject depositions were contentious.
counsel for the Secretary accused counsel for Newmont of
harassing MSHA witnesses and counsel for Newmont accused counsel
for the Secretary of obstructing the discovery process by raising
unfounded evidentiary privileges. On Tuesday, July 23, the
parties were able to reach me while I was on vacation. They
asked me to rule on the deliberative process privilege. In my
brief ruling, I stated that an answer to a question concerning
"the circumstances that led to the issuance of these particular
citations and orders ... is not protected by the deliberative
process privilege, and that to the extent that it is, the
Respondent's need for that information outweighs the Secretary's
need to protect the privilege." {Drussel Depo. at 167). I held
that discussions about the adoption of MSHA policy is· protected
by the privilege. The Secretary stated that it disagreed with my
ruling. Id. at 168. 1
At the depositions that followed my oral ruling, counsel for
the Secretary continued to object to any question that inquired
into areas that counsel believed to be protected by the
Subsequently,
the
Secretary
filed
a
motion
for
reconsideration and the issue was briefed by the parties. I issued
an order on August 30, 1996, addressing the deliberative process
privilege in more detail.

171 9

deliberative process privilege. The parties attempted to reach
me on other occasions that week but were unsuccessf~l. The
Secretary terminated the depositions. At the time he terminated
the depositions, counsel for the secretary accused counsel for
Newmont of speaking his name in contempt, conducting the depositions in an unprofessional manner, and generally conducting
himself in a manner that was harassing, degrading, intimidating,
and annoying . (Alvarez Depo. at 141-43).
I reviewed those portions of the deposition transcripts that
were sent to me by the parties. It is impossible to determine
from a "cold" transcript whether or not counsel for Newmont overstepped the bounds of professional conduct, as alleged by the
Secretary. On September 9, 1996, I granted, in part, the Secretary's motion for a protective order . In the order, I ruled that
many of the questions counsel asked Mr. Alvarez to test his credibility had, in fact, little bearing on credibility. I also
ruled that some of the hypothetical questions asked of Paul
Belanger were too broad or complicated to provide relevant information. Finally, I ruled that counsel continued to ask questions
about information that might reveal the identity of an informant
after the Secretary raised an objection.
Newmont's justification for filing the motion to dismiss is
that the Secretary made unfounded objections and improperly
instructed witnesses not to answer questions. Appendix A to
Newmont's motion sets forth some of the questions that Newmont
believes should have been answered. Counsel states that termination of the depositions was improper because he was simply
attempting to obtain answers to legitimate discovery questions.
My review of the deposition transcripts reveals that the Secretary did continue to make broad objections to Newmont's inquiries
on the basis of the deliberative process privilege. These objections were based on an interpretation of this privilege that is
broader that my oral ruling of July 24 and appears to be broader
than my ruling on reconsideration of August 30, 1996 .
Nevertheless, Secretary's counsel did not flagrantly or in
bad faith ignore his discovery duties. I find that the response
of counsel for the Secretary to the events and disputes that
occurred at the depositions does not demonstrate a "callous
disregard" of the responsibilities counsel owed to this tribunal
and Newmont . National Hockey League, Inc. v. Me~ro Hockey Club,
Inc., 427 U.S . 639, 640 (1976). As discussed in more detail
below, I find that both parties were responsible for the failure
of the July depositions. Accordingly, Newmont's motion to
dismiss is DENIED .

1720

III. Request to Reschedule all Depositions in Washington
If these proceedings are not dismissed, Newmont requests
that I order that its counsel be permitted to take and complete
the subject depositions in its offices in Washington, o.c. at the
secretary's cost. It believes that allowing "Newmont to finish
the unjustifiably incomplete and wrongfully terminated depositions at the Secretary's cost is a · clearly allowable remedy for
such misconduct." (Newmont Motion at 11).
The Secretary contends that Newmont has not "presented any
valid reason for an order compelling the Secretary to pay
expenses and make its witnesses available at Respondent's
counsel's offices in Washington, D.C . " (Sec. Opposition at 6).
He states that to qualify for such an order, the Secretary's
"conduct must frustrate a 'fair' examination of the deponent . • . • "
Id. The Secretary argues that such a fair examination was not
being conducted by Newmont's counsel. "Since the Secretary's
efforts to safeguard privileges and protect its witnesses from
undue oppression were made in a sincere and conscientious manner
and in the spirit of cooperating with discovery to the extent
allowable by the Commission and Federal Rules, the facts and
legal precedent do not support the imposition of monetary or
other sanctions or costs on the Secretary." Id.
In the Secretary's motion for a protective order, filed
August 13, 1996, the Secretary requested that I personally
supervise all remaining depositions in these proceedings. In
this regard, the Secretary requested that the remainder of the
depositions "be held in the Office of the Administrative Law
Judges in Denver, Colorado during such time as the Judge may be
present to rule on disputed matters and observe the conduct of
the parties." (Sec. Motion for Protective Order at 18-19). The
Secretary asked that costs of travel be borne by Newmont. Id.
Fed. R. civ. P. 30(d) (2) provides, in part, that if the
court finds that "an impediment, delay, or other conduct ••• has
frustrated the fair examination of the deponent, it may impose
upon the persons responsible an appropriate sanction, including
the reasonable costs and attorney's fees incurred by tpe parties
as a result thereof."
Judges are granted considerable discretion to regulate the
course of discovery. Discovery is designed to enable a party to
narrow. the issues, obtain evidence for use at trial, and gain
information about where and how such evidence can be obtained. 8
Wright & Miller, Federal Practice and Procedure, §2001 at 15.
In reviewing the deposition transcripts and the arguments of the
parties, I find that neither party conducted themselves within
the spirit of these concepts.
Although I make no finding that
either counsel acted in bad faith, I do find that counsel failed
to conduct themselves in a manner designed to facilitate the

1721

narrowinq of issues and exchanqe of information. Counsel for the
Secretary attempted to keep secret as much of the i~formation
about the citations and orders as he possibly could. In particular, Counsel's application of the deliberative process privilege
was overly broad. On the other hand, counsel for Newmont frequently pushed beyond the boundaries of legitimate discovery .
Some examples are set forth in my order granting, in part, the
Secretary's motion for a protective order, dated September 9. It
is apparent that the deqree of cooperation and trust between
counsel was low to nonexistent.
I find that both parties were directly and indirectly
responsible for the failure of the July depositions. Accordingly, Newmont's motion that I order the Secretary to make the
subject witnesses available for further depositions at Newmont's
counsel's offices is DENIED, as is Newmont's request for costs.
If Newmont wishes to continue these depositions it may do so
at the MSHA Vacaville office . In the alternative, the parties
may, by mutual aqreement, schedule these depositions in the
Commission's Denver courtroom. Each party would bear its own
costs. The par~ies should check with my office to make sure that
the courtroom is available on the desired dates. I will not
agree to any arrangement in which I attend these depositions, but
I will make myself available to resolve disputes.
IV.

Request to Compel Production of Withheld Documents

Newmont contends that the Secretary "knowingly and voluntarily disseminated to the public documents which otherwise might
be entitled to the deliberative process, attorney-client, and
work product privileges." (Newmont motion at 14). The documents
in question are: (1) a memorandum entitled "Alcoa ·Briefing,"
which discusses the implementation of 30 C.F.R. § 56 . 20011 and
other standards with respect to mercury at Alcoa's Port Comfort,
Texas, facility; and (2) a memorandum from Gretchen Lucken, Trial
Attorney, to J. Davit McAteer, which discusses the same issues.
Newmont contends that these memos (the "Alcoa memos") have been
given to an number of gold mine operators in Nevada as · justification for MSHA's enforcement policies with respect to section
56 . 20011. 2
Newmont argues that the Alcoa memos are directly
relevant to the issues in these cases because they explain MSHA's
enforcement policies. Newmont asserts that the Secretary has
waived any privilege for the information contained in the Alcoa

2

The standard provides, in part, that "[a]reas where health
or safety ha zards exist that are not immediately obvious to
employees shall be barricaded, or warning signs shall be posted at
all approaches."
1 722

memos by voluntarily disclosing this information to mine
operators.
The Secretary contends that the Alcoa memos are irrelevant
to these proceedings because they involve "potential action MSHA
might take in the future, [a) hypothetical situation involving
barely-detectable levels of mercury." (Sec. Opposition at 9).
1.'he Secretary also stat~..; ·that the disclosure of the Alcoa memos
was not voluntary because it was released by an MSHA employee who
had no authority to do so. The secretary believes that since the
Alcoa memos are "irrelevant to these proceedings, even under the
discovery standards for relevance, the court need not further
consider the waiver issue." Id. at 11.
The Alcoa memos set forth MSHA's "action level" for
requiring warning signs for mercury. That is, they state that
MSHA requires barricades or warning signs whenever mercury is
detected above certain specified levels under various scenarios.
I find that this information is highly relevant to these cases.
It contains a statement of MSHA policy with regard to the interpretation of one of the standards involved in these cases.
Whether or not . the mercury levels detected at the Newmont mine
were "far above the 'detection level"' ·as alleged by the Secretary is not controlling. Id . at 10. The Alcoa memos set forth
what MSHA believes to be the actions required by mine operators
to inform its employees of the presence of a mercury hazard.
Newmont states that several MSHA inspectors distributed the
Alcoa memos to mine operators to explain their enforcement
action. Newmont's claim is supported by an affidavit. Accordingly, I find that MSHA's dissemination of the memos was
voluntary. The fact that the disclosure was not specifically
authorized by MSHA's Arlington headquarters is irrelevant.
The Alcoa memos appear to be protected by the attorneyclient privilege and the work product rule, and may have
initially been protected by the deliberative process privilege.
The o.c. Circuit stated: .
Although the attorney-client privilege·
is of ancient lineage and continuing importance, the confidentiality of communications
covered by the privilege must be jealously
guarded by the holder of the privilege least
it be waived. The courts will grant no
greater protection to those who assert a
privilege than their own precautions warrant.
We therefore agree with those courts which
have held that the privilege is lost "even if
the disclosure is inadvertent . "
In re Sealed Cases, 877 F.2d 976, 980 (1989}(citation omitted).

1723

I agree with these principles, which also apply to the deliberative process privilege and the work product rule. I find that
the Secretary waived these privileges, as discussed below.
I also find that much of the information contained in the
Alcoa memos are not covered by the deliberative process
privilege. My order of August 30, 1996, briefly sets forth the
boundaries of the deliberative process privilege, which I will
not repeat here. I stressed, however, that the deliberative
process privilege does not apply to those parts of a document
that set forth agency policy. Such a document is not deliberative but is an expression of the agency's decision with respect
to an issue. "[E]ven if (a] document is predecisional at the
time it is prepared, it can lose that status if it is adopted,
informally or informally, as the agency position on an issue or
is used by the agency in its dealings with the public." Coastal
states Gas Corp. v Dep't of Energy, 617 F.2d 854, 866 (O.C. Cir.
1980) .

Accordingly, I find that the Secretary waived any privileges
it may have had with respect to information concerning what it
refers to as the "action level for warning signs" for mercury
under 30 c.F.R: S 56.20011. 3 In making this determination, I
have relied on the arguments set forth in Newmont's motion and
reply to the Secretary's opposition.• This waiver is not
unlimited, however. In accordance with my authority to control
the course of discovery, I make the following limitations.
First, the waiver does not apply to the informant's privilege.
Second, it does not apply to attorney-client communications
concerning this particular litigation that occurred after the
commencement of these cases. Third, it does not apply to
predecisional deliberations or any information that was not
adopted as MSHA policy. That is, those documents or parts of
documents that are "recommendatory in nature," "reflect the
personal opinions of the writer," or are a "draft of what will
become a final document" need not be disclosed. Id.
Newmont is entitled to information concerning MSHA's
policies with respect to mercury under the cited standards.
Thus, the Secretary shall provide Newmont with all documents
3

I limit my finding of waiver to the standards discussed in
the Alcoa memos. As discussed above, however, the Secretary should
understand that a document or portion thereof containing an
expression of MSHA's policies with respect to section 56.20014 for
mercury is not protected by the deliberative process privilege.
4

In these briefs, Newmont states that the Alcoa memos were
part of the Secretary's "secret rulemaking process." By granting
Newmont' s motion with respect to waiver, I do not signal my
agreement with Newmont's characterization.

1724

previously withheld that set forth MSHA policies for citing
operators under 30 C.F.R. S 56.20011 when mercury is detected.
In addition, at any future depositions, the Secretary's witnesses
shall answer questions concerning such MSHA policies and questions about how these policies were relied upon at Newmont's
mine. The limitations set forth above with respect to documents
apply equally to deposition questions.
For the reasons set forth above, that part of Newmont's
motion to dismiss that seeks to compel the Secretary to provide
information concerning MSHA policies for mercury under section
56.20011 on the basis that the Secretary waived certain
privileges is GRAllTBD, to the extent described above.
V.

Conclusion and Order

Newmont's motion to dismiss is DENIED, except as otherwise
set forth above.

Richard W. Manning
Administrative Law Judge

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 941052999
Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
RWM

1725

PBDERAL KINE SAPB'l'Y AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
September 16, 1996

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

v.
NEWMONT GOLD COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-434-M
A.C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C . No . 26-00500-55443
South Area - Gold Quarry

ORDER GRANTING SECRETARY'S MOTION FOR PROTECTIVE ORDER
Newmont Gold Company ("Newmont") noticed the deposition of
J. Davitt McAteer. on September 9, 1996, the Secretary filed a
motion for a protective order to shield Mr. McAteer from deposition by Newmont. Newmont filed an opposition to the Secretary's motion. For the reasons set forth below, I grant the
motion.
The citations and orders that are the subject of these
proceedings concern alleged mercury contamination at the South
Area Gold Mine. By order dated July 10, 1996, I granted the
Secretary's motion for a protective order that precluded Newmont
from taking the deposition of Andrea Hricko, Deputy Assistant
Secretary for the Department of Labor's Mine Safety and Health
Administration ("MSHA") .
18 FMSHRC 1304·, 1307-08 (July 1996).
I
determined that Ms . Hricko should be granted "limited immunity
from being deposed" in matters about which she had no personal
knowledge. Id. at 1307 (citation omitted).
I determined that it
was unlikely that Ms. Hricko had "direct personal factual information" about the citations and orders in these cases. · Id. at
1308 (citation omitted).
I also found that the .information
sought was available from other soµrces .
I applied a balancing
test and determined that "the burden placed upon Ms. Hricko and
MSHA if a protective order is not granted is significantly
greater that the burden placed on Newmont if a protective order
is granted." Id .
Mr. McAteer, Assistant Secretary of Labor for Mine Safety
and Health and Solic itor of Labor, is a high l evel gov ernment
official who enjoys limited immunity from testimonial obligations.
The Secretary contends that Mr. McAteer has no personal
knowledge of the facts relating to the citations at issue. He
also argues that Mr. McAteer has no "unique knowledge regarding

1 726

the mercury policy relating to the regulations at issue." (Sec.
Motion at 2). The Secretary states that Margie Zalesak, Chief of
the Health Division for Metal/Nonmetal, who will be an expert
witness, is. available to discuss MSHA policy as it applies to
this case. Accordingly, the Secretary contends that Newmont's
interest in deposing Mr. McAteer does not outweigh the government's limited immunity.
Newmont states that Mr. McAteer is aware of the existence
and meanirig of two memoranda addressed to him (the "Alcoa memos")
and that these memos are "the very linchpin of this litigation."
(Newmont Opposition at 2). The Alcoa memos were discussed in my
order of September 13, 1996, concerning Newmont's motion to
dismiss. The Alcoa memos discuss the implementation of 30 C.F.R.
§ 56.20011 and other standards at an Alcoa facility.
In my
order, I determined that information contained in the Alcoa memos
is relevant to these cases.
Newmont states that the Alcoa memos were "evaluated by him
in determining whether to proceed in the Alcoa litigation, and
(came] from his office to the MSHA field offices as the Secretary's policy -guidance." Id. Newmont argues that my ruling with
respect to Ms. Hricko is not controlling because Mr. McAteer has
"specific knowledge on the illicit mercury enforcement policy
being used." Id. at 5. Finally, Newmont argues that the Secretary's attempts to substitute Ms. Zalesak for Mr. McAteer is
improper.
Although Mr. McAteer has knowledge about MSHA policies
concerning mercury exposure at gold mines, I sincerely doubt he
has specific knowledge about the implementation of these policies
at Newmont's South Area Gold Mine. Any knowledge he has about
the citations and orders in these cases came about as a result of
this litigation or briefings by his staff.
The fact that Mr. McAteer has specific knowledge about MSHA
enforcement policy or that MSHA enforcement policy emanated from
his office does overcome his limited immunity from testimony.
Mr. McAteer has knowledge about MSHA enforcement policy with
respect to many if not all of MSHA's safety and health standards.
Many of these policies originated in his off ice or the office of
his predecessors. Thus, under Newmont's logic, Mr. McAteer could
be ordered to testify in virtual~y any case in which the mine
operator questions the agency's enforcement policies.
Nothing in the record or Newmont's arguments convinces me
that Mr. McAteer has any special or unique evidence to offer in
these cases. Anything that he knows about the citations and
orders in these cases he obtained from others. If he issued
written or oral instructions concerning the agency's enforcement
policies for mercury, Newmont can obtain this information from
local MSHA officials or from Ms. Zalesak, Chief of the Health

1727

Division. I agree with the Secretary that Mr. McAteer has no
"unique knowledqe" regarding mercury policy with respect to the
standards at issue.
Using the balancing test set forth in my order of July 10,
1996, I find that the burden placed upon Mr. McAteer and the

Department of Labor if a protective order is not granted is
significantly greater than the burden placed upon Newmont if a
protective order is qranted. Accordingly, the Secretary's motion
for a protective order to shield J. Davit McAteer from deposition
by Newmont is GRAlf'l'BD.

Richard w. Manning'
Administrative Law Judge

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 941052999

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
RWM

1728

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
September 18, 1996

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

v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-434-M
A.C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C. No. 26-00500-55443

NEWMONT GOLD COMPANY,
Respondent

South Area - Gold Quarry

ORDER ALLOWING LIMITED ENTRY UPON LAND
The Secretary requested permission to enter the South Area
Gold Quarry owned by Newmont Gold Company ("Newmont") for the
purpose of preparing for trial in this matter. In particular,
the Secretary seeks permission for his attorneys and "five
technical experts/inspectors" to visually inspect the mine, take
samples, and photograph and videotape the mine. The Secretary
states that the "purpose of the inspection is for generalized
familiarity with the mine and mine environment and its equipment,
possible development of photographic or videotaped exhibits,
inspection of the physical layout, and a determination of good
faith compliance with the standard . " (Sec. Motion to Compel
Discovery at 1-2).
Newmont opposes the Secretary's request for an inspection of
the mine. First, Newmont contends that the Secretary's request
is "hopelessly vague" on the areas to be inspected at the mine.
(Newmont Motion to Quash at 5). In addition, the Secretary seeks
to bring both his attorneys and inspectors on the visit. It
contends that the Secretary's counsel is not authorized to conduct its own enforcement inspection with MSHA inspectors. Third,
Newmont contends that the Secretary's request to take samples is
without foundation. It argues that the citations and ·orders were
abated over 18 months ago and the conditions at the mine are not
the same. In the alternative, Newmont states that if the Secretary is permitted to inspect the'mine, the inspection should be
restricted to certain areas and the Secretary's activities should
be limited.
Fed. R. civ. P. 34 permits a party to enter upon land of an
opposing party for the purpose nf inspection. The Commission's
rules provide that a party may seek "permission to enter upon
property for inspecting, copying, photographing, and gathering
information." 29 C.F.R. § 2700.56(a) . such an inspection is, of
course, subject to general limitations of sections 2700.56(b) and
1729

(c). In addition, because "entry upon a party's premises may
entail greater burdens and risks than mere production of documents, a greater inquiry into the necessity for the inspection"
is warranted. Belcher v. Bassett Furniture Industries, Inc., 588
F.2d 904, 908 (4th Cir. 1978).
I construe the Commission's rules to permit the type of
inspection that the Secretary has requested. In this case, I
find that the Secretary has presented sufficient justification
for its inspection. I find, however, certain limitations are
appropriate. First, the citations and orders in these cases were
issued in discrete areas of the mine.
Accordingly, the Secretary's inspection shall be limited to the "boneyard," the AARL
room, and the ZADRA room. The Secretary's party may briefly tour
other areas to get an idea of the configuration of the mine. 1
I do not understand why the Secretary would like to take
samples. Samples of the cited areas taken more than 18 months
after the citations and orders were issued would have little or
no relevance to the issues in these cases. Newmont represents
that the "environmental and physical layouts of the three areas
have been altered since the citations were issued .••. " (Newmont
Motion to Quash at 4). The Secretary hints that the samples may
be relevant to "a determination of good faith compliance with the
standard." (Sec. Motion to Compel at 2). The violations alleged
in the citations and orders in the subject cases have all been
abated, so evidence of violations during the inspection by the
Secretary's party would not be relevant to good faith issues.
Nevertheless, under section 103(aj(4) of the Mine Act, authorized
representatives of the Secretary have the authority to sample for
health hazards to determine "whether there is compliance with the
mandatory health or safety standards . " Accordingly, authorized
representatives of the Secretary may take samples under the
authority of that section.
Newmont is entitled to have one or more representatives
accompany the inspection party. Because the inspection by the
Secretary's party is not a formal enforcement inspection but is
being conducted in preparation for trial, Newmont is entitled to
Under section 103(a), authorized representatives of the
Secretary are permitted to inspect .any section of the mine without
advance notice to determine whether Newmont is complying with
MSHA's safety and health standards.
The purpose of this
inspection, however, is to allow the Secretary to prepare for
hearing on citations and orders that have already been issued.
While I do not have the authority to prohibit an authorized
representative from entering other areas of the mine if he believes
that a violation or an imminent danger is present, the Secretary's
inspection party shall otherwise comply with the restrictions set
forth in this order.

1730

(1) the results of any sampling; (2) any raw data obtained; and
(3) an opportunity to view photographs and videotapes. The
secretary's party shall take all necessary precautions to protect
Newmont's trade secrets.
All members of the Secretary's party shall conduct their
inspection in such a manner as to minimize their disruption of
Newmont's operation. In general, they shall not talk with
Newmont employees without the permission of the Newmont representative. As stated in my order of September 4, 1996, authorized representatives of the Secretary have a general authority to
discuss safety and health issues with miners without the mine
operator's prior approval. The purpose of this special visitation, however, is to examine those areas of Newmont's mine that
were involved in the citations and orders. Accordingly, this
visitation cannot be used by the Secretary to interview Newmont
employees. Newmont shall make at least one individual available
who can describe the facilities being visited and answer basic
questions.
Accordingly, the Secretary's request to enter Newmont's
South Area Gold Quarry is GRANTED as set forth above. Newmont's
motion to quash is DENIED, except to the extent set f th in this
order.

Richard w. Manni
Administrative Law

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 941052999

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq., Office of the Solicitor, U.S . Department
of Labor, 4015 Wilson BoulevardJ Arlington, VA 22203

RWM

1731

FEDERAL HINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844•5268
September 18, 1996

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

v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-434-M
A. C. No. 26-00500-05542
Docket No . WEST 95-467-M
A.C. No. 26-00500-55443

NEWMONT GOLD COMPANY,
Respondent

south Area - Gold Quarry

ORDER DENYING MOTION FOR RECOHSYDERATIOH
On this date, I entered an order granting the Secretary's
motion to enter the South Area Gold Quarry owned by Newmont Gold
Company ("Newmont") under the authority of 29 C.F.R. S 2700.56.
I limited the scope of the visitation, as set forth in the order.
By telephone, Newmont asked that I reconsider my ruling.
Newmont contends that the Secretary does not seek the visitation
for a valid discovery purpose but merely to educate his attorneys
and expert witnesses. It states that a party may only obtain
discovery of "any relevant .•. matter that is admissible evidence
or appears likely to lead to the discovery of admissible evidence." 29 C.F.R . § 2700.56(b). Newmont argues that this
visitation will not uncover relevant matters and will not lead to
the discovery of relevant evidence. It also contends that the
visitation puts an undue burden on its operation. Newmont
believes that the Secretary wants the visitation to educate his
witnesses in preparation for trial. The Secretary disagrees with
Newmont's characterization and believes that the visitation is
consistent with the purposes of discovery.
Although the Secretary cannot pinpoint any particular fact
that may be obtained as the result of the visitation, he believes
that the visitation may lead to the discovery of relevant evidence. I agree. It is impossible for the Secretary to set forth
any particular fact in advance of the visitation that the Secretary's party will discover that will be relevant, admissible, or
lead to the discovery of admissible evidence. When a party seeks
documents, for example, the party does not know if any information in the documents will lead to the discovery of relevant
evidence, it just believes that it may. During the visitation,
the Secretary's industrial hygienist may see things that causes
him to make inquiries after he leaves the property or that leads
him consider other matters when developing his expert testimony.
1732

The same is true of the Secretary's medical expert. The purpose
of discovery is to prepare for trial, so the fact that the visitation will aid the Secretary in that preparation does not mean
that the visitation is beyond the scope of discovery.
The Secretary's visitation party will be viewing the areas
where the alleged violations occurred . There is no substitute
for direct observation. During the visitation, the secretary's
experts will be able to see the particular facilities involved
and their observations· may lead them to consider additional facts
or circumstances. Their observations may be relevant to the
issues in these cases and may be offered as evidence.
Accordingly, Newmont's motion for reconsideration of my
order allowing the Secretary limited entry upon Newmo
mine
is DENIED.

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 941052999

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street; NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq . , Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
RWM

1733

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

September 17, 1996

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

CIVIL PENALTY PROCEEDING
Docket No . WEST 96-204-M
A. C. No. 04-00204-05519

v.
NATIONAL QUARRIES,
Respondent

National Quarries

DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATI ON
Before :

Judge ·Merlin

This case is before me upon a petition for assessment of
civil penalties under section lOS(d} of the Federal Mine Safety
and Health Act of 1977. The Solicitor has filed a motion to
approve settlements for the four violations in this case . A
redu ction in the penalties from $28,500 to $19,950 is proposed.
The four violations in this case were issued as the result
of a fatal accident. MSHA determined that proper procedures for
handling a misfired hole were not followed, causing a miner to be
fatally injured when he inadvertently drilled into a charged
hole.
I cannot approve the settlement motion. The parties are
reminded that the Commission and its judges bear a heaVy responsibility in settlement cases pursuant to section llO(k) of the
Act. 30 U. S.C. § 820 (k}; ~' S. Rep. No. 95-181, 95th Cong., 1st
Sess . 44-45, 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 632 - 633
(1978}.
It is the judge's responsibility to determine the appropriate amount of penalty, in accordance with the six criteria set
forth in section llO(i} of the Act. 30 u.s . c. § 820(i); Sellersburg Stone Company v. Federal Mine Safety and Health Review
Commission, 736 F.2d 1147 {7th Cir. 1984).

1734

The proposed settlement remains a substantial amount.
However, the proposed reduction of 30% also is substantial. The
Solicitor has not offered any reasons to support the suggested
settlement. I will not approve settlements where there is no
justification for what I am being asked to approve . That a
fatality is involved, compounds the error.
This is not the first time this Solicitor has submitted an
inadequate settlement motion. In Bennie Wayne Curtis. Emp. by
Canyon Country Enterprises, 17 FMSHRC 1810 (October 1995), I
disapproved a recommended settlement from this Solicitor in a
section llO(c) case where he gave no reasons. Also, in
Chandler's Palos Verdes Sand & Gravel, 16 FMSHRC 1926 (August
1994), where an accident had occurred, I disapproved a proposed
settlement unaccompanied by reasons and told the Solicitor that
the fact that the suggested penalties remained substantial did
not in and of itself warrant approval. In both cases the
Solicitor subsequently submitted supplemental motions· which were
eventually approved . I would think that by now this Solicitor
would realize that a settlement motion without reasons is a waste
of everyone's time.
In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.
It is further ORDERED that within 20 days of the date
of this order the Solicitor submit appropriate information
to support his settlement motion. Otherwise, this case will be
heard as scheduled .

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail & Telecopied)

J . Mark Ogden, Esq . , Office of. the Solicitor, U.S . Department of
Labor, Federal Bldg., Room 3247, 300 North Los Angeles St., Los
Angeles, CA 90012

1735

Robert T. Andersen , Jr., Esq., Redwine and Sherrill, 1950 Market
Street, Riverside, CA 92501
Douglas White, Esq. , Counsel, Trial Litigation, Office of the
Solicitor, U . S . Department of Labor, Room 414, 4015 Wilson
Boul·e vard, Arlington, VA 22203

/ gl

1736