JULY

1992

---·-~-

COMHISSION DECISIONS
07-02-92
07-09-92
07-14-92
07-28-92
07-03-92

Jim Walter Resources, Inc.
Paul Shirel
Peabody Coal Company
Nest, Inc.
Warren Steen Construction, etc.

SPECIAL 92-01
KENT 92-73
KENT 91-1231
WEVA 91-293-R
LAKE 89-68-M

Pg. 1113
1115
1117
Pg. 1119
Pg. 1125

.

ADMINISTRATIVE LAW JUDGE DECISIONS
07-01-92
07-06-92
07-07-92
07-07-92
07-10-92
07-15-92
07-15-92
07-20-92
07-24-92
07-30-92

Boswell v. National Cement Co.
UMWA, Local 2244 v. Hat hies Coal Co.
Young Brothers
Ramar Coal Company, Inc.
Hickory Coal Company
Garratt Company
trom(Partial Dec,)
Vogt v. N.A.
Shannopin
Company
Mid-Continent Resources, Inc.
ZCA Mines, Incorporated

SE 90-112-DM
PENN 91-108-C
CENT 91-221-N
VA 91-69
PENi\I 92-16
WEST 91-27-H
WEST 92-225-DM
PENN 91--1398
WEST 91-580
YORK 92-40-H

. 1135
Pg. 1138
Pg. 1139

Pg. 1145
Pa
1160
b'
Pg. 1163
1177

1178
Pg. 1197
Pg. 1199

ADMINISTRATIVE
LAW JUDGE ORDERS
-

---

07-09-92
07-17-92
07-31-92

Contests of
rable Dust
Contests of
irable Dust Samples
Energy Fuels Coal Inc.

No. 91-1
No. 91-1
WEST 92-102

1203
Pg. 1210

Pg. 1223

JULY 1992

Review was granted in the f_ol_lowing cases during the month of July:
Secretary of Labor, MSHA v. S & H Mining Inc., Docket No. SE 91-32.
(Judge Fauver, May 26, 1992)
BethEnergy Mines, Inc. v. Secretary of Labor, HSHA, Docket Nos. PENN 89-277-R,
PENN 89-278-R. (Judge Fauver,
27, 1992)
Secretary of Labor, MSHA v. Paul Shirel, Docket No. KENT 92-73.
Order of June 17, 1992, Chief Judge Merlin
not published)

(Default

VP-5 Mining Company, Inc. v. Secretary of Labor, MSHA, Docket Nos.
VA 92-112-R through VA 92-115-R. (Judge Melick, June 22, 1992)
Review was denied in the following cases during the month of July:
Charles Smith v. KEM Coal Company, Docket No. KENT 90-30-D.
May 28, 1992)

(Judge Fauver,

Contest of Respirable Dust Samples, ~aster Docket No. 91-1. (Judge
Broderick, Interlocutory Review of May 22, June 12, and June 18, 1992 Orders)

COMMISSION DECISIONS

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

July 2, 1992
JIM WALTER RESOURCES, INC.
Docket No. SPECIAL 92-01

v.

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

ORDER

On June 25, 1992, counsel for Jim Walter Resources, Inc. ("JWR"),
submitted for filing with the Commission's Office of Administrative Law
Judges a document entitled "Notice of Contest and Motion for Partial Relief
from Final Order." A corrected cover page to the motion, submitted on June
26, 1992, makes clear that the motion is intended to be lodged with the
Commission itself. Essentially, the motion seeks to reopen an unspecified
number of uncontested and closed cases in which JWR paid civil penalties
proposed by the Department of Labor's Mine Safety and Health Administration
("MSHA"). The asserted grounds for relief are that the penalties were
proposed, in part, on the basis of MSHA's Program Policy Letter No. P90-III-4
(May 29, 1990), which the Commission concluded could be "accorded no legal
we
or effect" in
14 FMSHRC 661, 690 (May 1992), and related
cases.
Subsequent to JWR's submission, the American Mining Congress ("AMC")
submitted a motion to participate in this matter as an amicus curiae on the
side of JWR. Counsel for the Secretary of Labor then submitted an unopposed
~otion requesting an enlargement of time in which to file a statement in
opposition to JWR's motion.
For administrative purposes only, this matter, which involves unique
issues possibly affecting a large number of closed penalty matters, will be
assigned the docket reference "No. Special 92-01." The parties' various
papers are hereby accepted for filing under that docket number. The
assignment of a docket number and acceptance for filing does not mean, nor is
meant to suggest, that the Commission has determined that it possesses
jurisdiction in this matter or is thereby ruling on any issues raised in the
parties' papers.
The Com.mission has determined administratively that counsel for the
Secretary of Labor has no objection to the AMC's amicus participation. The
AMC's motion adequately sets forth the basis of its interest in this matter
and why its participation would be desirable. Cf. Fed. R. App. P. 29. Upon
consideration of the AMC's motion, it is granted and the AMC is hereby

1113

permitted to participate as amicus in this proceeding.
Upon consideration of the Secretary's motion for enlargement of time,
it is granted and the Secretary has until July 27, 1992, to file her
statement of opposition in this matter.
For the Commission:

~~
Chairman

Distribution

David H. Smith, Esq.
J. Alan Truitt, Esq.
l".iaynard, Cooper, Brierson & Gale, P.C.
1901 Sixth Avenue North
2400 l\.rnSouth/Harbert Plaza
Birmingham, AL 35203-2602
Harold Rice, Esq.
Stanley :!'farrow,
Jim Walter Resources, Inc.
P.b. Box 133
Brookwood, Alabama 35444

James A. Lastowka, Esq.
Robert C. Gombar, Esq.
Jones, Day, Reavis & Pogue, for ANC
Hetropolitan Square
1450 G Street, N.W.
Washington, D.C. 20005-2088
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

1114

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

20006

July 9, 1992

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

BEFORE:

)
)
)
)
)
)
)
)

Docket No. KENT 92-73

Ford, Chairman; Backley, Doyle, Holen and Nelson, Com.missioners
ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et .§.fill. (1988) ("Mine Act"). On June 17,
1992, Com.mission Chief Administrative Law Judge Paul Merlin issued an Order of
Default, finding respondent Paul Shirel ("Shirel") in default for failure to
answer the civil penalty proposal of the Secretary of Labor ("Secretary") and
the judge's order to show cause. The judge assessed the civil penalty of
$1,000 proposed by the Secretary. For the reasons that follow, we vacate the
default order and remand this case for further proceedings.
The judge's jurisdiction over this case terminated when his decision was
issued on June 17, 1992. 29 C.F.R. § 2700.65(c). Under the Mine Act and the
Commission's procedural rules, relief from a judge's decision may be sought by
filing a petition for discretionary review with the Commission within 30 days
of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a).
Shirel filed a timely petition, with supporting affidavits, with the
Commission on June 29, 1992, seeking relief from the judge 1 s default order.
He petitions for review on the grounds that neither he nor his counsel had
received the petition for civil penalty or the judge's order to show cause.
Shirel further asserts that he had placed the Commission and the Office of the
Solicitor of Labor ("Solicitor") on notice of his contest of the proposed
civil penalty, and of his representation by counsel, by filing an answer prior
to the Secretary's filing of the petition for civil assessment. A certificate
of service attached to the answer indicates that it was served by Shirel 1 s
counsel on the Commission and on the Solicitor's Office in Arlington,

1115

Virginia, in early November, prior to the filing of the Secretary's civil
penalty petition.
On the basis of the present record, we are unable to evaluate the merits
of Shirel's position. In the interest of justice, we will permit him to
present his position to the judge, who shall determine whether final relief
from the default order is warranted. See,~. Kelley Trucking Co., 8 FMSHRC
1867 (December 1986).
Accordingly, we vacate the judge's default order and remand this matter
for further proceedings.

L. Clair Nelson, Commissioner

Distribution

Flem Gordon,
Gordon & Gordon

P.O. Box 1305
Madisonville, Kentucky

42431-1305

Lisa A. Gray, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
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

1116

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

20006

July 14, 1992

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 91-1231

v.

PEABODY COAL COMPANY

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1988) and involves an alleged violation of 30 C.F.R.
§ 75.301 by Peabody Coal Company ("Peabody").
After an adverse decision by
the Commission administrative law judge, Peabody filed a Petition for
Discretionary Review, which the Commission granted. Subsequently, the
Secretary filed a Notice of Intent to Vacate Citation and Request Dismissal
and a subsequent Motion to Dismiss Appeal. In the Notice of Intent, the
Secretary explained that the Department of Labor's Mine Safety and Health
Administration ("MSHA") promulgated a final rule, scheduled to take effect on
August,16, 1992, that will effectively moot the issues raised in the instant
case and that continued litigation of this case risks confusion and a waste of
resources. On June 15, 1992, MSHA vacated the disputed citation. Peabody has
indicated that it has no objection to the granting of the Secretary's motion.
we conclude that adequate reasons have been presented supporting
vacation of the underlying citation and dismissal of this proceeding, and
grant the motion.
~' Climax Molybdenum Co., 2 FMSHRC 2748, 2750
(October 1980); Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 (February
1985); BethEnergy Mines. Inc., 12 FMSHRC 1751, 1753-54 (September 1990).

1117

Accordingly, the citation involved in this proceeding and the assessed
civil penalty are vacated with prejudice. The Commission's direction for
review is vacated and this proceeding is dismissed.

Richard V. Backley, Commissioner

Joye~ c~ tb4
••

~ieneer

L. Clair Nelson, Commissioner

Distribution

H., Christian Schumann, Esq.
Tina Gorman, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
David R. Joest, Esq.
Peabody Coal Company
P.O. Box 1990
Henderson, KY 42420-1990
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesbur£ Pike, Suite 1000
Falls Church, Virginia
22041

1118

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

20006

July 28, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEVA 91-293-R

EAGLE NEST, INCORPORATED
BEFORE:

Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION

BY THE COMMISSION:

This contest proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"). At issue is whether
a violation by Eagle Nest, Incorporated ("Eagle Nest") of 30 C.F.R.
§ 75.305, for water accumulations in a longwall tailgate return entry, was
significant and substantial in nature ("S&S"). 1 Commission Administrative
Law Judge Avram Weisberger concluded that Eagle Nest violated the regulat~on
but that the violation was not S&S. 13 FMSHRC 843 (May 199l){ALJ). We
granted the Secretary of Labor's petition for discretionary review. For the
reasons that follow, we vacate the judge's finding that the violation was not
S&S and remand for further proceedings consistent with this decision.

1

30 C.F.R. § 75.305 provides, in part, as follows:
[E]xaminations for hazardous conditions,
including tests for methane, and for compliance
with the mandatory health or safety standards,
shall be made at least once each week by a
certified person designated by the operator in
the return of each split of air where it enters
the main return, on pillar falls, at seals, in
the main return, at least one entry of each
intake and return aircourse in its entirety,
idle workings, and, insofar as safety
considerations permit, abandoned areas .... The
person making such examinations and tests shall
place his initials and the date and time at the
places examined, and if any hazardous condition
is found, such condition shall be reported to
the operator promptly. Any hazardous condition
shall be corrected immediately ....

1119

I.

Factual Background and Procedural History
Eagle Nest's underground coal mine is located in Boone County, West
Virginia. The mine has had a history of water accumulation problems.
Although Eagle Nest has taken measures to address these problems, water
accumulation at the mine has nonetheless persisted.
In the context of the present proceeding, water accumulated in the
tailgate return entry of longwall panel A. Eagle Nest had placed four water
pumps at locations where it was anticipated that water would collect. The
pumps were connected to ten inch water lines that carried the water away from
the entry.
On March 14, 1991, accumulations in the entry of water four feet deep
were reported in the mine's weekly examination book. The following day,
mining began in longwall panel A. On March 19, 1991, Eagle Nest's longwall
coordinator traveled the entry to conduct an examination and experienced
accumulations of water up to his shirt pocket (about four feet high).
On March 20, 1991, Mine Safety and Health Administration ("MSHA")
Inspector Ronnie Joe Dooley made a spot inspection of the longwall A panel.
Dooley traveled along the tailgate return entry outby the face, with union
representative Franklin Miller and the general mine foreman Jim Lambert.
Dooley wanted to see whether the entry was safe for travel by the examiner
conducting the weekly examination required under section 75.305. After
travelling approximately 600 to 700 feet in the tailgate entry, Dooley,
Miller, and Lambert encountered an area of water accumulation extending from
rib to rib (approximately 20 feet). 2
At spad No. 3777, the water reached the top of Dooley's 16 inch boots.
Dooley stopped, concluding that it was not safe to proceed. The water hole
extended as far as Dooley could see, at least 200 feet outby where he stopped.
0ooley asked Lambert whether it was possible to reach the other side of the
water accumulation by traveling up the entry from the mouth end, but was told
that there were other water accumulations that would prevent the inspection
party from reaching that point.
Dooiey concluded that the weekly examiner traveling the entry would be
exposeci to slipping, stumbling, and falling hazards due to water
accumulations. His task would be made more difficult by submerged lumps of
coal, rocks, remnants from concrete stoppings, the ten inch water line, and
pieces of wood from cribs and pallets. According to Dooley, the water was
murky and the bottom could not be seen. Dooley was additionally concerned
about slick mud, cracks in the bottom of the entry (hooving), and
accumulations of mud where the examiner's boots could become stuck. Dooley
emphasized that the examiner traveling through the entry would be at the same
time inspecting for hazardous conditions, such as entry blockage, ventilation
hazards, and methane, as well as observing the condition of the roof and ribs.
Tr. 28.
2

The travelway itself was reduced to approximately five feet in width
because there were cribs on each side of the entry.

1120

Accordingly, Dooley issued Eagle Nest a section 104(a) citation for
violation of section 75.305 as follows:
At least one entry of the longwall tailgate
return entry could not be made safely in its entirety.
Water has accumulated in depth exceeding 16 inches at
Survey Spad [N]o. 3777 and various locations outby.
This condition creates a hazard to those persons
required to make weekly examinations.
S. Exh. 2.

Dooley also found the violation to be S&S. 3

On March 21, 1991, Eagle Nest attempted an examination of the entry but
the presence of water prevented the examiner from proceeding beyond the No. 14
stopping. According to Dooley, the No. 14 stopping was approximately 2,000
feet outby spad 3777. 4
Judge Weisberger found that the accumulation of water presented a hazard
to those miners who.would have to t:raverse it to make an examination. 13
FMSHRC at 846. He also found that this hazardous condition had been initially
observed on March 14, 1991, again on March 19, 1991, and had not been
corrected as evidenced by its continued existence on March 20, 1991. Id. The
judge consequently found that Eagle Nest violated section 75.305 as alleged.
Id.

The judge found, however, that the violation was not S&S. 13 FMSHRC at
847. He concluded that the Secretary had failed to establish a reasonable
likelihood that an injury due to falling or slipping would occur. Id.
Although a stumbling or falling hazard was present due to the depth and murky
nature of the water accumulation, according to the judge, the hazard could be
mitigated by walking cautiously to feel for submerged objects so that they
could be avoided.
II.

Disposition of Issues
On review, the Secretary submits that the judge erred in concluding that
the violation was not S&S. The Secretary argues that the judge erred in
finding that the water hazard was not reasonably likely to result in slipping,
stumbling, or falling as the examiner attempted to make his way through the
3

The term significant and substantial is taken from section 104(d) of

the Mine Act, 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 .... " 30 U.S.C. § 814(d)(l).
4

The citation was terminated on April 12, 1991, after the water had
been pumped down to a safe level and Eagle Nest had built wooden bridges over two
places where the water was more than 16 inches deep. It appears that one of the
bridges was built in the area of accumulation that Dooley observed. See Tr. 244.

1121

travelway. The Secretary disputes the judge's conclusion that the hazard
could be mitigated by exercising caution. We vacate the judge's finding of
non S&S for legal error.
A violation is properly designated as S&S "if, based on the particular
facts surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a reasonably
serious nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary 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 reaSOJ?.~ble likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
The 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)), and also that the likelihood of injury be evaluated
in terms of continued normal mining operations (U.S. Steel Mining Co., Inc,,
6 FMSHRC 1573, 1574 (July 1984); see also Halfway, Inc., 8 FMSHRC 8, 12
(January 1986). The Secretary is not required to present evidence that the
hazard actually will occur. Thus, in Youghiogheny & Ohio Coal Co., 9 FMSHRC
673 (April 1987), the Commission held that:

:::rr order to establish the significant and
substantial nature of the violation, the Secretary
need not prove that the hazard contributed to actually
will result in an injury causing event. The
Commission has consistently held that proof that the
injury-causing event is reasonably
to occur is
what is required.
~, TI. S, Steel Mining Co, , 7
FMSHRC at 1125; U.S. Steel Mining Co., 7 FMSHRC 327,
329 (March 1985).
9 FMSHRC at 678. The question of whether any particular violation is S&S must
be based on the particular facts surrounding the violation. Texasgulf, Inc.,
10 FMSHRC 498, 501 (April 1988).
With regard to the first and second elements of the Mathies test, the
judge's findings of a violation of section 75.305 and of a discrete safety
hazard, i.e., a hazard of slipping or falling, are not in issue. With respect
to the fourth element of the Mathies test, the likelihood that a resulting
injury would be reasonably serious in nature, that element is also not in
dispute.

1122

As to the third element of the Mathies test, whether there was a
reasonable likelihood that the hazard of slipping or falling would result in
an injury, the judge concluded that, although a stumbling or falling hazard
was present due to the depth and murky nature of the water accumulation, the
hazard could be mitigated by walking cautiously to feel for submerged objects
so they could be avoided. 13 FMSHRC at 847.
We reject the judge's conclusion that the "exercise of caution" may
mitigate the hazard. In effect, the judge seeks to add another element to the
Mathies test, i.e., that the exercise of substantial additional caution can be
presumed and then considered in determining whether there is a likelihood of
injury. Consistent with Commission precedent, it is the likelihood of injury
that must be evaluated in considering whether a violation is S&S. The hazard
continues to exist regardless of whether caution is exercised. The judge
therefore erred when he concluded the hazard could be mitigated by caution.
We assume that the judge meant that the likelihood of injury could be
mitigated by caution. While miners should, of course, work cautiously, that
admonition does not lessen the responsibility of operators, under the Mine
Act, to prevent unsafe conditions.'·
The judge, in resting his decision on the possibility of mitigation by
the use of caution, failed to address comprehensively the evidentiary record
in determining that the Secretary did not establish a reasonable likelihood
that an injury would occur. The substantial evidence standard of review
requires a weighing of all probative record evidence and an examination of the
fact finder's rationale in arriving at the decision. See Universal Camera
Gorp. v. NLRB, 340 U.S. 474, 487 (1951); Arnold v. Secretary of HEW, 567 F.2d
258, 259 (4th Cir. 1977). A judge must analyze and weigh the relevant
testimony of record, make appropriate findings, and explain the reasons for
his decision. Anaconda Co., 3 FMSHRC 299, 299-300 (February 1981).
Accordingly, we vacate the judge's decision and remand for further analysis
and determination of the S&S issue without consideration of whether the hazard
could be mitigated by the use of caution.

1123

III.
Conclusion

We conclude that the "exercise of caution" is not an element in
determining whether a violation rises to the level of S&S, and we direct the
judge on remand to conform to the Mathies test to substantively analyze the
evidence of record and to set forth his rationale in his reconsideration.
Accordingly, we vacate the judge's conclusion that Eagle Nest's
violation of section 75.305 was not S&S and remand for further proceedings
consistent with this decision.

~
~
Richard V. Backley, Commissioner

eJ?t.:1fc:mm~

~tl.n&ner

L. Clair Nelson, Commissioner

Distribution

David J. Hardy, Esq.
Jackson & Kelly
PoOo Box 553
Charleston, WV 25322
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1124

~

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

July 30, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. LAKE 89-68-M
LAKE 89-93-M

v.

WARREN STEEN CONSTRUCTION, INC.,
AND WARREN STEEN, Employed by
Warren Steen Construction, Inc.
BEFORE:

Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). The issues are:
(1) whether Warren Steen Construction, Inc. ("W.S.C.") violated.30 C.F.R.
§ 56.12071 1 when it operated a stacker-conveyor2 near energized high-voltage
power lines and, if so, whether that violation was caused by its unwarrantable
failure to comply with the standard; (2) whether Warren Steen (usteen") is
individually liable under section llO(c) of the Mine Act, 30 U.S.C. § 820(c),
for authorizing the alleged violation; and, (3) whether the civil penalties
assessed against W.S.C. and Mr. Steen are supported by substantial evidence.
Following an evidentiary hearing, Commission Administrative Law Judge James A.
Broderick concluded that W.S.C. had violated section 56.12071, that the
violation had been caused by its unwarrantable failure, and that Steen was
individually liable for the violation. 13 FMSHRC 256 (February 199l)(ALJ).
The judged assessed an $8,000 civil penalty against W.S.C. for the violation

1

30 C.F.R. § 56.12071, a mandatory safety standard applicable to surface
metal and nonmetal mines, provides, "[w]hen equipment must be moved or operated
near energized high-voltage powerlines (other than trolley lines) and the
clearance is less than 10 feet, the lines shall be deenergized or other
precautionary measures shall be taken."
2

A stacker-conveyor is an adjustable piece of equipment that can be raised
or lowered with a hydraulic system located on the "stacker"; it was used by W.S.
Construction to convey sand and gravel up to stockpiles. Tr. 13.

1125

of section 56.12071 involving the stacker-conveyor 3 and assessed a civil
penalty against Steen in the amount of $5,000. For the reasons set forth
below, we affirm the judge's decision.
I.

Factual and Procedural Background
At all times relevant to this case, W.S.C. operated the Steen Pit Mine,
a sand and gravel mine located in Moose Lake, Minnesota, and Steen was the
president and owner of W.S.C. 4 On July l, 1988, W.S.C. employees, Jack
Hufford and Gary Jobe, attempted to move an 80-foot Nordberg stacker-conveyor
in order to make a new row of gravel piles. The stacker-conveyor was first
attached with a chain to a front-end loader's bucket. Mr. Hufford, who
operated the front-end loader, and Mr. Jobe, who walked along beside it in
order to give Hufford directions, then began to move the stacker-conveyor by
pulling it with the front-end loader. Hufford testified that they "started
swinging [the stacker-conveyor] to the side to start a row of piles" and, as
the stacker-conveyor swung back and forth, it passed near the power lines.
Tr. 49, 50-51.
In an attempt to stop the stacker-conveyor, Jobe threw a plank on the
ground at the desired location, pulled the wheel up on it, and then placed a
second piece of lumber perpendicular to the plank under the wheel and motioned
for Hufford to stop. 5 Tr. 20, 49. The stacker-conveyor continued to roll
over the wood, gaining momentum. Jobe pushed against the frame in an attempt
to stop it, but the stacker-conveyor contacted the overhead power lines. Jobe
was electrocuted as a result.
The overhead power lines, owned by Minnesota Power & Light ("MP&L"), ran
approximately 12,000 volts of current, and were 19 feet-9 1/2 inches above the
ground at their lowest point. Tr. 19, 57. At the point of contact, the power
line contacted was approximately 22 feet-1/4 inch above the ground. Tr. 19.
The height of the stacker-conveyor at its discharge point was 23 feet. Tr.
18.
On July 5, 1988, the Occupational Safety and Health Administration,
which had been informed of the accident, contacted the Department of Labor's
Mine Safety and Health Administration ("MSHA") about the matter. Later that
day, MSHA Inspector Jim King visited the mine and spoke with Mark Belich, an
assistant engineer for MP&L, and with Steen's son, and took photographs.
Inspector King testified that Mr. Belich informed him that, prior to the
3

The judge also assessed a separate $8, 000 civil penalty for another
violation of the same standard.
4

Steen sold the mine on May 1, 1989.

5
The planks used by Jobe measured 2x4 inches, and approximately four to
five feet long, and 4x4 inches, and approximately four feet long, respectively.
Tr. 41, 49. Jobe did not use the chock blocks that came from the manufacturer
with the stacker. Tr. 75-76.

1126

accident, Steen had discussed with MP&L representatives the possibility of
relocating the power lines so that they would not interfere with ongoing work
at the mine. Tr. 12-13, 43. Inspector King returned to the mine on July 6,
1988, to continue his investigation and found that the stacker-con~eyor had
been moved to a location approximately 75 feet from the power lines. Tr. 28.
Inspector King spoke with Steen, Hufford, and another MP&L representative
about the accident. Based upon his investigation, Inspector King issued to
W.S.C. a section l04(d)(l) citation alleging a significant and substantial
("S&S") violation of section 56.12071, caused by the operator's unwarrantable
failure to comply with the standard.
During his investigation on July 6, Inspector King noticed that a
feeder-conveyor was operating close to the power line. 6 Tr. 25, 28-29.
After receiving authorization to conduct a regular inspection of the mine,
Inspector King determined that the clearance between the feeder-conveyor and
the power line was approximately eight feet. Inspector King then spoke with
Steen about moving the feeder-conveyor. Steen replied that he had a few more
weeks of work remaining at that location, and that he would move the equipment
after he finished it. Tr. 27, 36, 82. Inspector King then issued to W.S.C. a
section 104(d)(l) order, alleging a'secondS&S violation of section 56.12071,
caused by the operator's unwarrantable failure. The order was terminated
after the feeder-conveyor was shut down and moved away from the power line.
S. Exh. 4.
The Secretary proposed that civil penalties be assessed against W.S.C.
in the amount of $7,000 for the alleged violation involving the stackerconveyor, and $8,000 for the alleged violation involving the feeder-conveyer.
The Secretary also proposed that a civil penalty in the amount of $4,000 be
assessed against Steen individually under section llO(c) of the Mine Act
because, she alleged, he knowingly authorized, ordered, or carried out a
violation of section 56.12071 involving the stacker-conveyor.
Following an evidentiary hearing, the judge found that W.S.C. had
violated section 56.12071 in both instances, and that the violations were S&S
and caused by the operator's unwarrantable failure. He first determined that
W.S.C. had violated the standard through its operation of the stacker-conveyor
within 10 feet of an energized high-voltage power line, "so that the conveyor
came in contact with the line," without the power line having been deenergized
or other precautionary measures taken. 13 FMSHRG at 260. The judge found
that the violation was S&S because a miner had been electrocuted as a result
of the violation. Id. In addition, the judge concluded that the violation
was unwarrantable and resulted from the operator's "reckless disregard" for
the safety of miners, because the operator had been cautioned about working
too close to the power lines before the accident, and because the operator
should have recognized that operation of a large metal machine under a high
voltage line is inherently dangerous. Id. The judge assessed a civil penalty
in the amount of $8,000 against W.S.C., rather than the $7,000 penalty
proposed by the Secretary.
6

The feeder-conveyor was used by W. S. G. to transport material from a
portable crushing and screening unit to a stacker-conveyor. Tr. 13-14.

1127

The judge also sustained the citation alleging a violation of section
56.12071 involving the feeder-conveyor because he found that W.S.C. operated
"the conveyor" directly below energized high-voltage power lines at a distance
of 8 to 8 1/2 feet. Id. 7 He determined that the violation was S&S because
it "was extremely serious and was likely to result in serious injury if mining
had been allowed to continue." Id. He noted that the operator had
experienced a fatal accident five days earlier as a result of the same
condition and that, therefore, the operator had unwarrantably failed to comply
with the standard. 13 FMSHRC at 260-61. He then assessed the proposed civil
penalty of $8,000 against the operator. 13 FMSHRC at 261.
Concerning Steen's individual liability under section llO(c) of the Act,
the judge found that Steen exhibited a reckless disregard for safety and
knowingly authorized operation of the equipment close to high-voltage power
lines. 13 FMSHRC at 261. The judge assessed a civil penalty in the amount of
$5000 against Steen, rather than the $4,000 penalty proposed by the Secretary.
The Commission subsequently granted W.S.C.'s and Steen's petition for
discretionary review, in which they dispute the stacker-conveyor violation,
whether that violation was caused o)Tthe operator's unwarrantable failure,
whether Steen is individually liable, and the amount of the three civil
penalties assessed by the judge. 8
II.

Disposition of Issues
A.

Citation involving stacker-conveyor

The judge found that W.S.C. violated section 56.12071 when its stackerconveyor was operated near energized high-voltage power lines, clearance was
less than 10 feet, and the power lines had not been deenergized, or other
adequate precautionary measures taken. The petitioners argue that these
7

In his findings of fact, the judge stated that on July 6, 1988, "the
stacker-conveyor was still below the energized 12,000 volt power line. It was
approximately 8 feet directly below the line."
13 FMSHRC at 258 (emphasis
added). The operator argues that this finding of fact is not supported by the
evidence. P. Br. at 2. The record reveals that, in fact, the stacker-conveyor
had been moved to a location 75 feet away from the power line but on July 6,
1988, the feeder-conveyor was operating approximately eight feet from the power
line. Tr. 28-29. Although the judge misspoke as to the particular conveyor, we
conclude that his error was harmless.
In this case, the specific piece of
equipment operating near the energized power line in violation of section
56.12071 is irrelevant.
8

The Secretary maintains that the petitioners have not sought review of
the finding that the stacker-conveyor violation was caused by W.S.C.'s
unwarrantable failure. S. Br. at 5 n. 5. In fact, W. S. C. has sought review of
this issue by disputing the judge's fourth conclusion of law, in which the judge
determined that the stacker-conveyor violation occurred as a result of the
operator's unwarrantable failure. P. Br. at 2; 13 FMSHRC at 260.

1128

findings are contrary to law and are not supported by substantial evidence.
P. Br. at 2. We disagree.
The evidence is undisputed that, as the stacker-conveyor swung back and
forth while it was being moved, it passed near the energized high-voltage
power lines. Tr. 24, 50-51. Clearance between the stacker-conveyor and the
power lines was less than 10 feet. The height of the power lines was
approximately 19 feet-9 1/2 inches at the lowest point and 22 feet-1/4 inch at
the contact point, while the stacker-conveyor's discharge height was
approximately 23 feet. Tr. 18-19. The power lines were not deenergized, and
Inspector King testified that Jobe's use of wooden planks to control movement
of the stacker-conveyor was an inadequate precautionary measure. Tr. 21. No
other precautionary measures were taken. We conclude that the foregoing
evidence constitutes substantial evidence in support of the judge's findings,
and we affirm his determination that W.S.C. violated section 56.12071 in its
operation of the stacker-conveyor.
Substantial evidence also supports the judge's finding that the stackerconveyor violation was caused by W.S.C.'s unwarrantable failure to comply with
section 56.12071. The Commission has determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence. Emery Mining
Corporation, 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & Ohio Coal
Company, 9 FMSHRC 2007, 2010 (December 1987).
W.S.C.'s actions resulting in the stacker-conveyor violation were
properly characterized by the judge as aggravated. It is common knowledge
that power lines are hazardous, and the standard itself provides notice that
precautions are required when working near power lines with heavy equipment.
In addition, W.S.C. had been warned by MP&L representatives before the
accident that it was operating too close to the lines. Tr. 59. The evidence
reveals that Steen knew that the stacker-conveyor would be operated near
energized power lines and that the clearance would be less than 10 feet. Tr.
18 19, 24, 50-51, 79. Steen testified that the stacker conveyor had been set
up in the cited location since the previous September 1987. Tr. 79. In fact,
he
move it to that location. Tr. 75. The record also discloses that
w.S.C. was actually aware, through Steen, of the dangers involved in working
around energized power lines. Steen testified that he had discussed with
employees how to move the stacker-conveyor so as to avoid contact with the
power lines. ~r. 72-73. Hufford also testified that he knew about the
aangers associated with power lines from personal experience, although Steen
had never discussed those dangers with him. Tr. 54.
W.S.C. also had sufficient knowledge, through Steen, that adequate
precautionary measures were not being taken, in that Steen knew that the power
lines had not been deenergized or relocated and that no steps had been taken
to prevent contact between the stacker-conveyor and the energized power lines.
Tr. 16, 24, 50-51. Even if the use of chock blocks were asswn.ed to constitute
an adequate precautionary measure, W.S.C. did not ensure that the miners were
trained regarding their use. Jobe, who had been employed at the mine for two
months before the accident, had never received formal training, and used
wooden planks rather than the chock blocks, in an attempt to control the

1129

movement of the stacker-conveyor.

Tr. 40-41, 52, 75-76. 9

Although the operator knew of the dangers involved in operating large
metal machinery near energized power lines, it directly exposed its miners to
such hazards without regard for their safety and without taking precautions.
Such conduct is aggravated, and constitutes more than ordinary negligence.
Accordingly, we affirm the judge's finding that W.S.C.'s violation of section
56.12071 was caused by its unwarrantable failure to comply with the standard.
B.

Section llO(c) liability
In relevant part, section llO(c) provides:
Whenever a corporate operator violates a
mandatory health or safety standard ... , any director,
officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation,
... shall be subject to.. the same civil penalties,
fines, and imprisonment that may be imposed upon a
person under subsections (a) and (d) of this section.

30 U.S.C. § 820(c). The judge found that Steen had sufficient knowledge of
the dangers associated with operating equipment near energized high-voltage
power lines to support a finding of individual liability under section llO(c)
of the Mine Act. 13 FMSHRC at 261.
Preliminarily, the evidence is undisputed that at all times relevant to
this case, W.S.C. was a corporation, and Steen was its president. Tr. 5, 68;
S. Exh. 2. As we concluded above, substantial evidence supports the judge's
finding that W.S.C. violated section 56.12071 through its operation of the
stacker-conveyor. Steen challenges whether substantial evidence supports the
judge's finding that he "'knowingly authorized" w.S.C.'s violation within the
meaning of section llO(c). We conclude that it does.
Steen argues that the judge's conclusion that he 11 knowingly authorized
the violations in reckless disregard for the safety of his employees is
without any factual basis whatsoever." P. Br. at 2. Steen maintains that he
was not at the
at the time of the accident and played no part in the
actual events that led to the death of Jobe. P. Br. at 4. He also asserts
that the mine had previously been inspected, apparently when the equipment was
set up in the same location, and that no violations had been cited. P. Br. at
5. He also argues that his discussions with MP&L centered around "some piles
of gravel that might constitute a hazard if a front-end loader were operated
on the piles" and that they did not discuss the stacker-conveyor. P. Br. at
9

It should be noted that since October l, 1979, Congress, through the
appropriations process, has prohibited MSHA from enforcing safety training
regulations at certain types of surface nonmetal mines, including the Steen Pit
Mine.

1130

2, 4. Steen further contends that he was not aware of the standard requiring
10 feet clearance from the power line, and that he did not knowingly and
intentionally tell his employees to position the equipment in such a fashion
that it would be in violation of federal law. Tr. 73, 77; P. Br. at 5. We
reject Steen's arguments.
In order to establish section llO(c) liability, the Secretary must prove
only that an individual knowingly acted, not that the individual knowingly
violated the law. See, ~. United States v. Int'l Minerals & Chem. Corp.,
402 U.S. 558, 563 (1971). Steen's claimed ignorance of the law is not a
viable defense. Id. at 563. Further, the fact that Steen was not present at
the mine at the time of the accident is no defense to the finding that he had
knowingly authorized the moving of the stacker-conveyor. Hufford testified
that on the day of the accident, Steen would have been the individual who gave
the orders to move the stacker-conveyor in order to construct new stockpiles.
Tr. 50. As noted earlier, Steen was aware that the stacker-conveyor would be
operated near energized power lines and that the clearance would be less than
10 feet. Thus, it is clear that Steen knowingly authorized miners to move
large metal machinery near energized high-voltage power lines, yet failed to
ensure that adequate precautionary measures were taken to prevent the hazards
associated with that procedure.
The fact that MSHA may not have previously taken enforcement action with
respect to the set-up of the stacker-conveyor does not obviate finding
liability against Steen. The Commission has recognized that prior instances
of inconsistent action by MSHA do not constitute a viable defense to
liability. See,~. King Knob Coal Co., 3 FMSHRC 1417, 1421-22 (June 1981).
Finally, Steen's argument that he had not been forewarned that the cited
conduct was hazardous, because the MP&L representative did not specifically
mention the stacker-conveyor, is unavailing; MP&L's warning was broadly
directed to working near power lines. More importantly, the standard gives
clear notice that operation within 10 feet of a power line requires
precautionary measures. Accordingly, we affirm the judge's finding that Steen
knowingly authorized w.S.C.'s actions in violation of section 56.12071, within
the meaning of section llO{c) of the Act.
C.

Assessment of civil penalties

w.S.C. and Steen argue that the civil penalties assessed against them
are not supported by evidence or by law. P. Br. at 2. They emphasize that
the record shows no prior violations, that the violations were promptly
abated, and that the accident was not caused by reckless actions of Steen but
occurred as a result of Jobe's negligence.
When a judge's penalty assessment is at issue on review, the Commission
must determine whether the penalty is supported by substantial evidence and is
consistent with the statutory penalty criteria set forth in section llO(i) of
the Mine Act, 30 U.S.C. § 820(i). See,~. Westmoreland Coal Co., 8 FMSHRC
491, 492 (April 1986). Within this framework, we examine the civil penalties
assessed by the judge against the petitioners' arguments pertaining to its
history of previous violations, its negligence, and its good faith in
attempting to achieve rapid compliance after notification of a violation. See

1131

30 u.s.c. § 820(i).
Between July 6, 1986, and July 5, 1988, W.S.C. was cited for one
violation of a mandatory health or safety standard, which did not involve
section 56.12071. S-Exh. 10; Tr. 22, 74, 86. The judge found that the
operator's history of previous violations was such that an otherwise
appropriate penalty should not be increased because of it. 13 FMSHRC at 257.
The judge's findings with respect to the operator's history of previous
violations are supported by substantial evidence.
Substantial evidence also supports the judge's negligence findings. The
judge found that the violations committed by W.S.C. and Steen resulted from
their "reckless disregard" for the safety of miners. 13 FMSHRC at 260-61.
With respect to the feeder-conveyor violation, the record reveals that Steen
knew that the feeder-conveyor was operating below an energized power line, and
that an electrocution of one of his employees had occurred five days earlier
when another conveyor had been moved near the power line. Tr. 26-27, 29, 51.
Such evidence supports the judge's characterization of W.S.C.'s conduct as
involving a high degree of negligence.
The judge also properly characterized the petitioners' violative conduct
involving the stacker-conveyor as involving a high degree of negligence. As
discussed above, the operator's conduct involving the stacker-conveyor
violation was unwarrantable, i.e., amounted to aggravated conduct constituting
more than ordinary negligence.
The petitioners also argue that the stacker-conveyor accident was caused
by an employee's negligence and that the accident was unintentional. The
Commission has found that, in some instances, an operator may be found
negligent, even though the violation was committed by a non-supervisory
employee. In A.H. Smith Stone, 5 FMSHRC 13 (January 1983), the Commission set
:Zorth the following guidelines:
The fact that a violation was committed by a non-

supervisory employee does not necessarily shield an
operator from being deemed negligent. In this type of
case, we look to such considerations as the
:'.:oreseeability of the miner's conduct, the risks
involved, and the operator's supervising, training,
and disciplining of its employees to prevent
violations of the standard in issue.

5 FMSHRC at 15.
We apply the A.H. Smith guidelines to the judge's findings and the
record evidence involving the stacker-conveyor violation, and conclude that
Jobe's actions were foreseeable. As discussed above, Jobe was required to
move the stacker-conveyor near energized power lines, and the clearance
between the power lines and the stacker-conveyor was less than 10 feet.
Jobe's actions in using the planks to control the movement of the stackerconveyor were foreseeable because miners had used the planks in such a manner

1132

in the past. Tr. 53-54. Second, the risks involved in moving the stackerconveyor near an energized power line were clearly serious. The stackerconveyor swung near the power lines and there was no clearance between the top
of the stacker-conveyor and the power lines at their lowest point. Contact
between the energized power line and the stacker-conveyor resulted in
electrocution. Third, the operator's supervision, training and discipline of
its employees with respect to this standard were inadequate. No designated
supervisor was on the premises at the time the stacker-conveyor was moved.
Tr. 72. Jobe had been hired only two months before the accident and had not
received any training, and no formal training had been provided to other
employees. Tr. 52, 54, 83. There was no evidence that the operator
disciplined employees in order to prevent violations of the standard. In sum,
consideration of the foreseeability of Jobe's conduct, the risks involved, and
the operator's lack of appropriate supervision, training and discipline leads
us to conclude that the judge properly found W.S.C. negligent.
As to Steen's individual challenge to the penalty assessed by the judge,
we refer to our earlier discussion of the section llO(c) violation. Further,
we concur with the judge that Steen,--an individual with 20 years of
experience, who personally directed the operation, acted with a high degree of
negligence in allowing the stacker-conveyor to be operated so near to the
power lines. Thus, we disagree that the penalty imposed on Steen by the judge
was too harsh and, we affirm it.
The judge did not make specific findings with respect to the
demonstrated good faith of the petitioners in attempting to achieve rapid
compliance after notification of the violations. In such circumstances, we
may examine the record for pertinent undisputed evidence. Sellersburg Stone
Co., 5 FMSHRC 287 (March 1983), aff'd, Sellersburg Stone Co. v. FMSHRC, 736
F.2d 1147, 1153 (7th Cir. 1984). The record reveals that the petitioners
abated the stacker-conveyor citation by moving the stacker-conveyor 75 feet
from its previous location. Tr. 28. Although the petitioners did not unduly
abatement of the stacker-conveyor violation, their operation of the
feeder-conveyor in the same location weighs heavily against a finding of
demonstrated good faith compliance. When he was notified that the feederconveyor was operating too close to the power lines, Steen asked for two or
three weeks time before he would be required to move it so that he could
finish work in that area. Such conduct does not support a decrease in the
civil penalties assessed
the judge.
In sum, we conclude that the three civil penalties assessed by the judge
against W.S.C. and Steen are consistent with the statutory criteria and are
supported by substantial evidence. Accordingly, we affirm the civil penalties
of $16,000 assessed against w.S.G., and $5,000 assessed against Steen.

1133

III.

Conclusion
For the reasons set forth above, we affirm the judge's findirigs that
W.S.C. violated section 56.12071 through its operation of the stacker-conveyor
and that this violation resulted from its unwarrantable failure. We also
affirm the judge's determination that Steen is individually liable under
section llO(c) of the Act for knowingly authorizing W.S.C.'s violation of
section 56.10271 involving the stacker-conveyor. Finally, we affirm the civil
penalties assessed by the judge against W.S.C. and Steen.

L. Clair Nelson, Commissioner

Colleen A. Geraghty

U.S. Department of Labor
Office of the Solicitor
L,015 Wilson Blvd.
Arlington, VA 22203
Robert E. Mathias, Esq.
1217 East First Street
Duluth, Minnesota 55805
Admimistlrative Law Judge James A. Broderick
Feder:.al Mine Safety & Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1134

ADMINISTRATIVE LAW JUDGE DECISIONS

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

22041

JUL 1
RONNY BOSWELL,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. SE 90-112-DM

NATIONAL CEMENT COMPANY,
Respondent

SE-MD-90-04
Ragland Plant

DECISION ON DAMAGES
Appearances:

Before:

Mr. Larry G. Myers, Union Representative, United
Paperworkers International Union, Odenville,
Alabama, for Complainant;
Thomas F. Campbell, Esq., Lange, Simpson,
Robinson & Somerville, Birmingham, Alabama, for
Respondent.

Judge Maurer

My Decision Upon Remand, issued on April 3, 1992, found
respondent, National Cement Company, in violation of
section l05(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et ~' and 1
to complainant for damages.
the parties cannot agree on what the appropriate measure of
should be, a supplemental hearing was held in Birmingham,
Alabama on June 15, 1992.
In the first instance, respondent argues that the "adverse
on
this case 11 and the "damages issue 0 are not properly
before me because I exceeded the scope of the Commission 1 s remand
order to me when I revisited those issues in my Decision Upon
Remand 1 and reopened the record to take additional evidence
complainant 1 s claimed back pay. Furthermore,
respondent disagrees that multiplying the loss in base pay
by
number of hours Boswell worked is the proper measure of
in any case. Respondent instead argues that the proper
measure of damages would be found by comparing Boswell's actual
pay received to the pay of a miner working as a utility laborer
over the same period of time. The difference being Boswell's
proper measure of damages (assuming of course, that it
a
itive number). The problem with taking this tack again at
this late stage of the proceedings is that the Commission has
already stated otherwise.

1

5

The Commission discussed "adverse action in this case" and
the "damages issue" at 14 FMSHRC 259-260 and held:
National Cement argues that no adverse action was
taken against Boswell because he earned more in the job
to which he transferred than he would have earned as a
utility laborer. We disagree. The Report specifically
states that Boswell was disqualified as a utility
laborer due to unsatisfactory performance and that he
was reprimanded.
It states further that, in order to
avoid discharge, the employee should review his work
performance history. This Report clearly constitutes
an adverse action subjecting Boswell to discipline or
detriment in his employment.
Further, although Boswell earned $920.04 more in
his new job than he would have in his previous one, his
job transfer from a utility laborer to payloader
operator reduced Boswell.ts base pay by $1.08 per hour.
The annual difference in earnings found by the judge
was due to additional hours worked by Boswell and
premium pay received for Sunday and holiday work, shift
differential, and overtime. Thus, the evidence shows
that Boswell earned more because he worked more, but
that he nevertheless suffered a loss in his base pay
rate. We conclude that Boswell suffered an adverse
action. (Citations omitted) .
The parties at the supplemental hearing corrected the abovere f erenced $1.08 per hour pay differential between the utility
laborer and payloader operator position to $0.945 per hour. This
is the only piece of evidence that the parties have stipulated to
entire case and I eagerly accepted it (Tr. 27). Thus,
cents per hour was the base rate differential that
Mr. Boswell used for all his back pay computations admitted into
the record as Complainant 1 s Exhibits Nos. 1 and 2. These
computations cover the period from January 11, 1990 through
May 30, 1992, and take into consideration all the hours Boswell
worked
uding the overtime premiums due Boswell, figured from
the base rate differential of 94 1/2 cents per hour.
It appears
to me to be a diligent and credible effort and I do credit it.
For the time period between January 11, 1990, and May 30, 1992,
the computations establish that he is due back pay in the amount
of $6094.28.
As a result of the testimony adduced at the Supplemental
Hearing, I find the complainant's accrued back pay for the period
from January 11, 1990 through May 30, 1992, to be $6094.28, based
on a base rate differential of $0.945 per hour for each hour he
worked. And because complainant has not yet been reinstated to
his position of utility laborer, that aspect of his damages will

1136

continue to accrue as well as interest on that award at the
appropriate rate until such time as it is finally calculated and
paid subsequent to his reinstatement, whenever that might be.
Presumably this case will go up on appeal.
ORDER
Respondent IS ORDERED:

1. To pay Ronny Boswell back pay through May 30, 1992, in
the amount of $6094.28, within 30 days of the date of this order.
2.
To pay Ronny Boswell interest on that amount from the
date he would have been entitled to those monies until the date
of payment, at the short-term federal rate used by the Internal
Revenue Service for the underpayment and overpayment of taxes,
plus 3 percentage points, as announced by the Commission in Loe.
U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988),
aff'd, 895 F.2d 773 (D.C. Cir. 1990).
3.
Within 30 days of this order, to reinstate complainant
to the same position, pay, assignment, and with all: other
conditions and benefits of employment that he would have had if
he had not been disqualified from his previous position as a
utility laborer on January llr 1990, with no break in service
concerning any employment benefit or purpose.

4. To completely expunge the personnel records maintained
on Mr. Boswell of all information relating to the January 11,
1990 "disqualification."

5. To pay Ronny Boswell additional back wages in the amount
of $0.945 per hour for every hour he has worked from May 31,
1992,
l the date of reinstatement to the ut
laborer
position with
thereon computed
accordance with the
Comrnission°s Decision
UMWA v. Clinchfield Coal Co., supra,
until the date of paymento
Decis
on Damages together with my prior Decision
Doon Remand constitutes my _
dispos
of
proceeding ..

,~4AJIA~
Jf\

Roy
::J:.urer
AdmitJ>frative Law Judge
Distribution~

Mr. Larry G. Myers, Union Representative, United Paperworkers
International Union, Route 2, Box 123, Odenville, AL 35120
(Certified Mail)
Thomas F. Campbell, Esq., Lange, Simpson, Robinson & Somerville,
1700 First Alabama Bank Building, Suite 1700, Birmingham, AL
35203 (Certified Mail)
Mr. Ronny Boswell, P.
Mail)

o. Box 177, Wattsville, AL 35182
1137

(Certified

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

22041

JUL 6 1992
UNITED MINE WORKER OF AMERICA,
ON BEHALF OF MEMBERS OF LOCAL
UNION 2244,
Complainants

COMPENSATION PROCEEDING
Docket No. PENN 91-108-C

v.

Mathies Mine

MATHIES COAL COMPANY,
Respondent

ORDER LIFI'ING STAY AND D!SMISSING PROCEEDING
Before:

Judge Melick

Complainants request approval to withdraw their complaint
in the captioned case on the grounds that compensation has
been received pursuant to a settlement agreement. Under the
circumstances herein, the request is granted. 29 C.F.R.
§ 2700.11.
The Stay Order previous
iss d is accordin ly
lifted and this case is therefore d' mis e .

If
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GJry MeliM
Administr ive Law Ju ge

(703) 756 [6261

'

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Distribution
Mary Lu Jordan, Esq., UMWA, 900 15th Street, N.W., Washington,
D.Co,
20005 (Certified Mail)

Joseph Mack III, Esq., Thorp, Reed and Armstrong, One Riverfront
Center, Pittsburgh, PA 15222 (Certified Mail)
/lh

1138

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266 I FTS 564-5266

1992

.
.
.

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 91-221-M
A.C. No. 41-03142-05520

v.
Atkins Pit
YOUNG BROTHERS INCORPORATEDu
CONTRACTORS,
Respondent

D
0

D
0

DECISION
Appearances:

Olivia Tanyel Harrison, Esq., Jack F. CStrander,
Esq., Office of the Solicitor, U.S. Department of
Laborr Dallas, Texas,
for Petitioneri
Richard C. Baldwin, waco, Texas
for Respondent.

Before~

Judge Lasher

In this matter MSHAJ proceeding pursuant to Sect:ion llOCa
the Federal
ne Saf
and Health Act of 1977v 30 u.s.c.
§ 820 (a) 17 seeks assessment of civil penal
es ($2 0 each) for two
alleged violations of 30 C.F.R. § 56.14107(a)a 1

The issues are whether violations occurred and, if sov the
appropriate civil penalties thereforo

amount

The two Section 104(a) non-~Significant and Substantial"
tations involved were issued by MSHA Inspector Mike Sanders on
May 29" 1991

1

This standard provides:
Moving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys,
flywheels, couplings, shafts, fan blades, and
similar moving parts that can cause injury.

1139

Citation No. 3895441 describes the allegedly violative
condition as follows~
The guard provided to cover the Self-Cleaning
Tail pulley pinch points on the C-12 conveyor
did not extend a sufficient distance to cover
all exposed areas.
Based on the preponderant reliable and probative evidence
introduced at hearing the following findings of fact are made.
The violation as described by the MSHA Inspector in the Citation did occuro
The Inspector clearly and credibly testified
that a violation was observed and the citation was issued because
the C-12 conveyorf which did have guards on both sides of the
tail pulleyu was not properly,guarded in the back section thereof.
There was not a guard surrounding all of the pinch points.
(T. 24)
The Inspector testified:
Q

The back section of the tail pulley was not guarded, in that
an employee in the area could easily gain access to the area of
the tail pulley. uu
(T. 25).
The Inspector credibly testified that in addition to the
back section of the tail pulley, the "top section thereof "just
directly above the tail pulley" was also unguarded.
CT. 24,
31). 2 The hazard was an employee's becoming caught in the pinch
points while the tail pulley was in operation.
Employees were
able to walk into the area where they would incur exposure to
such hazard"
To 25~26 9 55) o Occurrence of such an accident was
poss
e but not likely c
it did occur v it could result in
loss
a limbo
(To 25-28) o
The guarding
question was personally installed by Plant
Manager Torgersono
To 44 v 52) o
He conceded that a miner has to
get underneath the tail pulley uufrequently 111 in order 91 to clean
outv"' CT" .(\6F &19-50 51[' 55) and that the miner u1would be
standing right next to the conveyor 11 when he did so.
{T. 55).

2
Respondentcs Plant Manager, Ha.ns Torgerson, denied that
the top portion was unguarded.
I find the Inspector's testimony
more trustworthy and it is accepted on this point.
In any event,
the record is clear that the rear of the tail pulley was not adequa tely guarded, that this was the Inspector's primary concern,
and that such constitutes a violation.

1140

He also admitted being familiar with the regulation re:;cuiring
rear guarding on these conveyors.
(T. 56). Accordingly, it is
found that this is a serious violation which occurred as a result
of the Respondent's negligence.
(See also T. 57-58).
It is noted that in Respondent's post-hearing brief, Inspector Sanders' testimony is seriously misquoted.
This misrepresentation, constitutes Respondent's defense.
The Brief, at page 3,
states:
"On cross-examination, Mr. Sanders states clearly that,
'if the conveyor had had a top guard, no citation would have been
issued'"" 3 It is thus necesary to examine what Inspector Sanders 1 testimony, at page 31 of the transcript, actually was:

Q.

You indicated in testimony that there were
guards on the side of the conveyors.

A.

Yes, siro

Q.

was there a guard on the top of the conveyor at
that time?

Ao

Nov siro
If there were, I would not have cited
that condition.

Q.

But your notes do not indicate one way or the
other, do they?

Ao

They indicate that it was not guarded--pinch
point--tail pulley did not completely cover the
pinch points at the rear of the self-cleaning
tai pulleyo
So the rear of the self-cleaning
tail pulley was not totally coveredo
(Emphasis
added) o (To 31) o

Further explanation is unnecessary 0 Respondent's defense is

REJECTEDo
Turning now to Citation Noo 3895442 it describes the allegedly violative condition as follows~
unihe guard provided at the
tail pulley of the C-11 conveyor were [sic] constructed of rubber
belting and could not be properly secured into placeo~

3
Respondent's presentation of this evidence, without citation to the transcript, could have been seriously misleading.

1141

Inspector Sanders testified that the rubber guarding used on
the C-11 conveyor in question "has never" been acceptable to MSHA
CT. 64-65) 4 since the tail-pulley operation cannot be clearly
seen without removing or lifting the guard as is the case with
11
expanded metal or screen cloth" guards which permit the tail
pulley to be serviced through small holes and grease fittings
without lifting the guard.
CT. 64).
The Inspector said the hazard would be "someone lifting the rubber belting up simply to observe a condition which could be a build-up of material, a noisy
bearing, just to examine the general area and the condition of
the tail pulleyo 11
(T. 66) ~
He pointed out that it would be necessary for miners to come into the area to do shoveling and maintenance (T. 66) and stated there was a "possibility" that an incident could thus occur (Tro 66), meaning that a miner could be
caught in the pinch points and suffer injuries such as loss of
limbs, broken bones, cuts, bruises, and abrasions.
(T. 66).
The Inspector conceded that if someone fell against the rubber guarding, which was 3/ 8 of an inch thick rubber "conveyor
belting" ( T. 7 3-7 4) 1 he would not reasonably expect such person
to go through the guarding.
CT. 71).
Respondent~s witness, Plant Manager Torgerson, testified
that if someone fell against the guard he would not pass through
to the pulley and that if someone were to hit the guard as hard
as possible with a shovel it would not penetrate the guarding
material.
(T. 74).
Torgerson also established that the pulley
in question was guarded from the top, both sides, and the rear,
and that cleaning was normally accomplished by use of a front-end
loader or sma
loader" rather than having an employee on the
ground lifting up t:he guard to cleano
(To 75) o

The preponderance of the evidence indicates that there was
only a remote possibility that any miner or other person would

t1

~
The Inspector pointed out that MSHAus interpretation is
based on its 91 guarding bookv 01 which is entitled "MSHA vs Guide to
Equipment Guardingu 01 Ex. P-2" Significantlyv rubber guarding is
not specifically banned by this documentu which on page 4 thereof
states, inter aliag
ilMa terials for guards should be carefully
selected. For most installations, guards of bar stock, sheet
metal, perforated metal, expanded metal, or heavy wire mesh are
more satisfactory than those of other materials.
It is also~~
noted that the regulation allegedly infracted does not specifically or absolutely bar the use of rubber as a guarding material.

1142

come into contact with the pinch points of the tail pulley. In
any event, I conclude, that to the extent MSHA's Guide to Equipment Guarding heavily relied upon ~ the Inspector to formulate
his opinion as to the inadequacy of the guard, creates a presumption or inference that metal or non-rubber guarding material was
required, such inference or presumption is rejected. Such Guide
is an informally promulgated handbook containing guidelines to
aid inspectors in enforcing the Mine Act and such guides are not
equivalent to safety regulations or rules of law binding on the
Commission in all cases. Secretary v. King Knob Coal Company,
Inc. 11 3 FMSHRC 1417 (June 1981)
o

In the instant matter I find no evidentiary basis to support
a conclusion that there existed a reasonable possibility of anyone contacting the tail pulley in question. Thompson Brothers
Coal Companyu 6 FMSHRC 2094 (S.eptember 1984). Accordingly,
Citation No. 3895442 will be VACATED.
Penalty Assessment - Citation Noe 3895441
Respondentr a medium to a large Texas construction company
(T. 51-53) /1 is the operator of the Atkins Pit, a very s:nall surface limestone mine consisting of a quarry and a primary and a
secondary crusher. It had a history of 43 previous violations
( T. 81) during the two-year period immediately preceding the
issuance of the citation. The parties stipulated that the violation was abated in na timely fashion" and that payment of penal es ~qould not affect Respondent us ability to continue in
:'.)usinesso
The
ola on descr ed in
s citation was above
determined 'i:c be serious and to have resulted from Res'pondent
negligence
Accordingl
a penalty of $150 is ASSESSED
a

ORDER

:Lo

ta tion No o 3 895442 is VACATED.

~o
Respondent SHALL PAY to the Secretary of Labor within
30
ys from the date of issuance of this decision the sum of
$150 as and for a civil penalty for Citation Noo 38954410

~~~~~£!-Michael A. Ia sher, Jr.
Administrative Law Judge

1143

Distribution:
Jack F. Ostrander, Esq., Olivia Tanyel Harrison, Esq., Office of
the Solicitor, U.S. Department of Labor, 525 Griffin Street,
Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Richard C. Baldwin, YOUNG BROTHERS INC., CONTRACTORS, P.O.
Drawer 1800, 3001 Marlin Highway 6, Waco, TX 76703 (Certified
Mail)

ek

1144

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

22041

JUL 7 1992
CIVIL PENALTY PROCEEDING

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

Docket No. VA 91-69
A.C. No. 44-03441-03520

v.
Ramar Tipple No. 1
RAMAR COAL COMPANY,
INCORPORATED,
Respondent
DECISION
Appearances~

Caryl L. Casden, Esq., Office of the Solicitor,

u.s Department of Labor, Arlington, Virginia, for
the Petitioner;
James Ashby, President, Ramar Coal Company, Inc.,
Oakwood, Virginia, pro se, for the Respondent.

Before~

Judge Koutras
STATEMENT OF THE CASE

proceeding concerns civil penalty proposals filed by
the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a) 1 seeking civil penalty assessments for three alleged
violations of certain mandatory safety standards found in
Parts 7~ and 77u Title 30 Code of Federal Regulations.
The
respondent filed a timely answer and contest, and a hearing was
held in Grundy, Virginia.
The parties waived the filing of
posthearing briefs but I have considered their oral arguments
made in the course of the hearing
my adjudication of this
matter.

The parties settled two of the violations (Citation
Nos. 9975365 and 9975366), and the settlement was approved from
the bench. With regard to the remaining contested violation, the
issues presented include the fact of violation, the appropriate
civil penalty assessment for the violation taking into account
the civil penalty criteria found in section llO(i) of the Act,
and whether or not the inspector's S&S finding is supportable.
Additional issues raised by the parties are identified and
disposed of in the course of this decision.
1145

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

30 C.F.R. § 77.1607(c).

3.

Commission Rules, 29 C.F.R.

§

2700.1 et seq.

Discussion
Section 104(a) non-"S&S" Citation No. 9975365, issued on
October 11, 1990, cites an alleged violation of 30
C.F.R. § 71.208(a), and the cited condition or practice states as
follows:
The operator did not take one valid respirable dust
sample from designated work position 004-0 347 for the
bimonthly sampling period of August-September 1990.
Required sample is to be collected and submitted to the
Richlands MSHA Lab.
Section 104(a) non-"S&S" Citation No. 9975366, issued on
October 11, 1990, cites an alleged violation of 30 C.F.R.
§ 71.20B(a), and the cited condition or practice states as
follows:
The operator did not take one valid respirable dust
sample from designated work position 005-0 374 for the
bimonthly sampling period of August-September 19900
Required sample
to be collected and submitted to the
Richlands MSHA Lab.
The respondent confirmed that it did not wish to contest the
two respirable dust citations and agreed to pay the full amount
cf the proposed civil penalty assessments (Tr. 3).
The remaining alleged violationp section 104(a) "S&S 11
Citation No" 3352852, issued by MSHA Inspector Clifford F"
Lindsay on October 4, 1990p cites an alleged violation of
30 CoF.Ro § 77ol607(c) 0 and the condition or practice cited is
described as follows~
The operating speed of a large hauler was not prudent
and consistent with conditions of the roadway. The
large refuse hauler almost collided with my vehicle as
he was descending a rain-slick steep section of the
haul road returning from the refuse area.
The hauler
operator could not bring the vehicle to a stop even
after locking the rear wheels until he was well past my
vehicle. He avoided colliding with my vehicle by only

1146

the smallest of margins and largest of luck.
Imminent
danger Order No. 3352853 is issued in conjunction with
this citation, therefore no termination date is set.
stipulations
The parties agreed to the following (Tr. 5-9):
1. The respondent (James Ashby) is the owner and operator
of the Ramar Tipple No. 1, which is a small mine operation.
2.
The respondent is subject to the Act and agrees that the
presiding judge has jurisdiction to hear and decide this
case.
3. The contested citations were duly served on the
respondent by MSHA Insp~gtor Clifford F. Lindsay, an
authorized representative of the Secretary of Labor, while
acting in his official capacity.
Bench Ruling
The record reflects that Inspector Lindsay issued a section
107(a) Imminent Danger Order No. 3352853, in conjunction with the
contested Citation No. 3352852. A copy of the order was included
as part of the pleadings filed by the petitioner and i t states
that it was issued "to close all of the refuse haul road until
such time as all refuse hauler operators can be instructed to
maintain safe speeds under all conditions of the roadway".
The parties were under the impression that the respondent
had contested the validity of the imminent danger order and that
was in issue
this civil penalty proceeding (Tr. 17).
However, I take note of the fact that the petition for assessment
of civil penalty seeks a civil penalty assessment only for the
contested section 104(a) citation, and the respondent conceded
that it
not timely contest the validity of the imminent
danger order (Tr. 16}.
Commission Rule 21, 29 C.F.R. § 2700.2l(a), requires a mine
operator to file an application for review of a section 107(a)
imminent danger order within thirty (30) days of its receipt.
In
this case, there is no evidence that the respondent sought timely
review of the validity of the order. Under the circumstances, I
issued a bench ruling that the validity of the order was not an
issue in this case and that I would not decide the validity of
the order (Tr. 16-19). My bench ruling is herein REAFFIRMED.
Petitioner's Testimony and Evidence
Clifford F. Lindsay testified that he is employed by MSHA as
an impoundment pile specialist. He is a mining engineer and an

1147

authorized representative of the Secretary of Labor and he has
regularly inspected the respondent's waste impoundment and refuse
area to insure compliance with MSHA's regulations. He holds a BS
degree in chemistry from William and Mary College, and an MS
degree in mining engineering from Virginia Tech.
Mr. Lindsay confirmed that he was at the mine on October 4,
1990, to inspect the waste pile and the entry gate off the county
road was open. The gate was routinely opened when the facility
was in operation but it would otherwise be locked. There were
three signs posted around the gate area, and one of the signs
stated "keep right-do not pass".
Mr. Lindsay stated that he stopped at the plant office as
required to contact a representative of the respondent and to
review the plant inspection records. There was no one in the
off ice / which was not unusua+..t. and . he left to drive to the
impoundment area.
It was an overcast rainy day and he was
driving a standard government Cherokee jeep. The haulage road
conditions were "wet and messy" and refuse spillage from the
trucks was on the roadway, and it was similar to "black mud".
The roadway surface consisted of a combination of dirt, gravel,
and refuse.
Mr. Lindsay stated that as he proceeded along the haulage
road up to the impoundment site he observed no other traffic on
the road. The roadway was not as wide as a standard 2-lane road,
and he was driving "slightly to the right 11 • As he proceeded to
enter the "sharp hairpin" turn on the right inside curve he heard
the truck air horn sounding steadily and he turned his jeep as
close as he could to the right inside portion of the roadway next
~o the berm.
He saw the truck coming down the roadway in a
partial slide with its wheels lockedo The truck was
approximately two-feet away from his jeep when it passed him and
he was looking half-way up the truck tires as the truck passed
him.
Mr. Lindsay was of the opinion that the truck driver was not
full control of his vehicle. Although the driver was able to
steer the truck, he could not slow it enough to bring it to a
stop in a timely manner.
If he had not seen the truck or heard
the driver sound his hornr which prompted him to move his jeep
out of the way and to the right side of the road, there was no
doubt that an accident would have occurred and the truck would
have struck the jeep and run over ito
Mr. Lindsay stated that after the truck passed by he
immediately turned the jeep around to block and control access to
the roadway because he did not at that time know who else may
have been using the roadway and he was afraid that an accident
would occur.

1148

Mr. Lindsay identified five photographs of the haulage road
which he took on May 4, 1992, (Exhibits P-1-a through P-1-e). He
confirmed that exhibits P-1-d and P-1-e show the location of the
incident of October 4, 1990. He also identified exhibit P-3, as
a copy of the notes which he made on that day.
Mr. Lindsay confirmed that he issued the contested citation
in question (Exhibit P-2), and cited a violation of mandatory
safety standard 30 C.F.R. § 77.1607(c). He stated that the fact
that the truck nearly collided with his vehicle led him to
conclude that it was being operated at an unreasonable speed
given the wet conditions of the roadway. He confirmed that the
roadway was well-bermed, and he assumed that the truck brakes
were in good working condition since they locked when the driver
applied them and he eventually stopped the truck after it passed
by him.
Mr. Lindsay stated that he based his "S&S" finding on the
fact that he had a near collision with the truck. He also
considered prior MSHA accident reports which he has reviewed
concerning vehicle collisions under similar conditions, vehicles
colliding with trees, boulders, and other objects in the roadway,
and accidents resulting from truck drivers driving too fast.
Although such prior incidents have not occurred at the
respondent's mine, he considered the fact that he could have been
run over by the truck in question, and that in the course of
normal mining operations, a driver operating his truck too fast
could collide with another truck, with resulting serious
injuries" He confirmed that the roadway was normally traveled by
other inspectors, contractor vehicles, other company service
vehicles and refuse hauling trucks"
Mr. Lindsay stated that during a subsequent mine inspection
visit on November 28, 1990, Mr. Ashby discussed the citation with
him and informed him that the only solution to the problem was to
post signs restricting access to the haulage road. Mr. Ashby
also mentioned the fact that he had a recent 11 problem 11 with a
tanker truck which was on the roadway without the knowledge of
the haulage truck drivers, but he did elaborate further as to
what the 11 problem 11 was all abouto Mr" Lindsay identified Exhibit
P-4v as a copy of his notes documenting his conversation with
Mr. Ashby"
Mro Lindsay confirmed that he based his 11 moderate 11
negligence finding on the fact that the respondent may not have
been aware that the truck driver was driving too fast for the
existing road conditions. He also considered the fact that the
drivers need to maintain and complete their haulage cycle in a
timely manner in order to keep up with the refuse haulage trip
from the storage bins to the waste impoundment pile.

1149

Mr. Lindsay believed that the haulage truck operating
procedures at the time of his inspection were typical of the
procedures followed under dry roadway conditions. However, he
believed that the drivers needed to adjust their travel speed
when the road conditions are wet and slippery. He confirmed that
on subsequent mine visits he has observed that the drivers are
operating at slower speeds than the speed of the cited truck on
the day of his inspection.
Mr. Lindsay stated that he issued a section 107(a) imminent
danger order to temporarily block access to the roadway until he
could contact the respondent's representative to instruct the
drivers to slow down. He also considered the fact that he did
not know who else might be using the roadway and he was concerned
that an accident would occur if normal mining operations were
allowed to continue before he could speak to the respondent and
take further corrective act~9n (Tr. 24-68).
On cross-examination, Mr. Lindsay confirmed that he has
inspected the respondent's operation since 1985, and although he
has "dodged" and "backed up" away from trucks from time-to-time,
he was never involved in any prior "near collisions" and was not
aware of any prior haulage road accidents. He also confirmed
that he was aware of the steep grade over which the cited truck
in question was travelling on the day in question, and he agreed
that people should be careful on slick roadways.
Mr. Lindsay confirmed that he was not familiar with the
mechanics" of haulage trucks and that he did not know the speed
at which the truck was travelling on the day of the incident in
question"
He has since nc1ocked 1i the trucks at 20-25 miles per
l1our under drv road conditionsQ
He believed that it was the
respondent:s responsibility to establish safe truck operation
speeds for the haulage roads on its property. He confirmed that
a 25 m.p.h. speed limit sign is posted on the level roadway
portion (Exhibit R-1-C)
but did not see one posted on the "high
road 10 • He also stated that he has never had to pull over to the
left side of the road to allow a truck to pass him.
11

Mr. Lindsay stated that he had no knowledge as to whether or
not the respondent had ever instructed the truck drivers about
safe travel speeds prior to his inspection on October 4, 1990,
and although he saw a bulletin board in the mine office he saw no
roadway safety rules or procedures posted. He confirmed that he
did not initially see the truck in question because of the angle
of the road, but that he did hear the air horn (Tr. 68-91).
Respondent's Testimony and Evidence
Bobby Joe Austin testified that he is employed by the
respondent but is currently laid off and receiving unemployment
compensation. He stated that he served in the army as a heavy

1150

equipment operator and has worked in strip mining operating heavy
equipment and 10-ton trucks since 1968. He confirmed that he was
driving the empty truck in question on October 4, 1990, and that
Inspector Lindsay was driving in the center of the road and then
moved to the right after he sounded the truck air horn.
Mr. Austin stated further that all of the other MSHA inspectors
who travel the roadway usually drive to the left at the curve in
question so they can look up the incline to see any traffic
coming down the road.
Mr. Austin confirmed that he applied his truck brakes when
he saw Mro Lindsay and that the transmission retarders
automatically lock the wheels. He stated that large trucks and
other vehicles have passed each other at the location where he
encountered Mr. Lindsay 1 s vehicle. Mr. Austin denied that he was
operating the truck in a reckless manner • He stated that he was
aware of the fact that he should drive slower under wet road
conditions, and he believed that he had the truck under control
on the day in question.
Mr. Austin stated that the respondent has conducted regular
safety talks with all truck drivers and has instructed them to
drive carefully, particularly under wet road conditions. He
stated that he and Mr. Ashby cautioned Mr. Ashby's son about
driving to fast on the roadways, and Mr. Ashby confirmed that he
fired his son for driving too fast. Mr. Austin believed that the
respondent's safety record and procedures, as compared to other
mine operators 1 was npretty high". He stated that no one has
ever instructed him to drive fast or to hurry so that he could
keeo :i.lp
·the refuse cycle (Tr. 92~104),
On cross-examination, Mro Austin explained that his job was
to drive the haulage trucks back and forth from the plant refuse
bins to the refuse impoundment pile. He has also trained new
drivers pursuant to the respondent's 8-hour training program. He
stated that the refuse tipple has a daily 5 or 6 truck capacity
and that the haulage cycle consists of a continuous loading,
haulage 1 and dumping cycleo He confirmed that he has never been
disciplined for
lowing too much refuse material to accumulate
in the bins or for violating any company driving safety rules"
Mr. Austin stated that he was operating the truck in third
gear while descending the roadway in question, and that the truck
can go 20 miles per hour in third gear. However, he never "hits
the curve wide openu, and he could not have driven any slower on
the day in question (Tr. 104-118).
Inspector Lindsay was recalled and he testified that he was
not aware of any company rule or policy stating that he was to
stay on the left side of the road when approaching a curve or an
incline. He confirmed that he has never driven on the left side
of the road in any of his visits to the mine site and he believed

1151

that the company practice and rule was "right side traffic all of
the time"o He confirmed that he drives at a slow rate of speed
and listens for any haulage trucks on the roadway.
Mr. Lindsay stated that based on his observations of the
truck at the time of the incident in question he believed that
the driver could have driven much slower given the conditions of
the roadway so that he could bring the truck to a stop within a
reasonable distance to avoid a collision. Mr. Lindsay stated
that he instinctively drives inside the curve because of his
belief that a large vehicle coming at him around the curve would
have an easier time going to the outside broad radius of the
curve. He stated that "I still can't picture a large hauler with
its rear wheels locked and sliding being able to negotiate a
tighter turn as opposed to a broader turn" (Tr. 121).

Mr. Lindsay stated that'from his subsequent observations of
haulage trucks using the haul road in question, the trucks
traveled at a slower rate of speed on dry days than the speed the
truck was travelling on the wet day when he issued the citation
(Tr. 122). In his opinion, in order for a driver to be driving
prudently and consistently with the road conditions "the vehicle
should be driven slowly enough so that in negotiating this curvy,
steep road, the operator could bring the vehicle to a stop in a
resonable length to avoid colliding with any object in the road"
(Tr. 123) •
Findings and Conclusions
The respondent
charged with a violation of mandatory
standard 30 C.F.R. § 77.1607(c) 1 which states as follows~

Equipment operating speeds shall be prudent and
consistent with conditions of roadway, grades,
clearance.
ibility, tra
, and the type of
equipment used.
Truck driver Austin testified that he had the truck under
controlr and he denied that he was operating it in a 11 reckless
manner" on the day in question. He further testified that he had
the truck in u•normal 11 third gear while coming down the inclined
roadway in question approaching the curve where Mr. Linday's
vehicle was located. Although Mr. Austin initially stated that
in third gear nno matter how much fuel you give it, it will go a
certain speed" (Tr. 108), he later confirmed that the speed of
the truck can reach 20 miles an hour in third gear, and that if
he wanted to "slide the truck" around the curve in question he
could "hit it at twenty". However, he denied that he would ever
do this because "you show that curve respect" (Tr. 115).

1152

Inspector Lindsay did not allege that Mr. Austin was
operating the truck in question in a reckless manner. The
inspector's credible testimony reflects that he issued the
citation after observing the truck coming down the haulage road
in a partial slide with its wheels locked. The day in question
was rainy and overcast, and the roadway surface was wet and
consisted of a combination of dirt, gravel, and refuse, and the
inspector described this material as 11 black mud".
He also
indicated that it was raining hard enough so that "I wouldn't
want to stand out in it very long", and "the water on the road
would make it slippery"
(Tr. 31, 34).
Mr. Lindsay testified that he had no doubt that Mr. Austin
did not have full control of the truck even through he was able
to steer it some. Mr. Lindsay stated that he observed the truck
in a partial slide with its rear wheels locked up coming down the
road towards the curve where,h~ was located. He concluded that
Mr. Austin had apparently applied the brakes after seeing his
vehicle in the curve, but instead of the truck slowing down or
coming to a stop, the rear wheels were simply locked up and
sliding (Tr. 36). Mr. Lindsay stated further that the driver's
side left rear very large wheel, which was locked up and sliding,
missed the front of his vehicle by approximately two feet, and he
was looking up at it as the truck passed by "very close". If the
truck had slid slightly sideways towards him it would have
collided with his vehicle (Tr. 37).
Mr. Lindsay testified that Mr. Austin could not have stopped
the truck even if he had wanted to because the wheels were locked
and sliding r and as the truck: passed by r it was
iding and not
stopping at any significant rateo Mro Lindsay believed that if
he had driven a l
further around the curve in the roadway he
would have been in the direct path of the truclc, and it would
have been difficult for Mr. Austin to avoid colliding with his
vehicle. Mr. Lindsay stated that if a collision had occurred,
:uhe very likely could have absolutely run over me 1e (Tr. 39).
Under all of these circumstances, and given the prevailing wet
and slippery road conditions, Mr. Lindsay concluded that the
truck was being operated at an unreasonable speed. He issued the
citation and charged the respondent with a violation of section
77.1607(c), because of
belief that the truck was being
operated at a speed which was not prudent or consistent with the
existing wet and slippery conditions of the roadway.
There is no direct evidence as to precisely how fast
Mr. Austin was driving on the day in question.
Inspector Lindsay
testified that he has "clocked" the trucks traveling at 20 to 25
miles an hour coming down the grade in question under normal dry
road conditions, but that after the incident in this case, the
drivers drive slower (Tr. 74, 82). Mr. Ashby agreed that there
is a potential for an accident or a fatality when the trucks are
on the road in question and that he has cautioned drivers to go

1153

slower on wet days (Tr. 141). Mr. Austin confirmed that after
the incident in question, he was cautioned to drive slower, but
that he continued "in a manner" to drive "at a normal speed"
(Tr. 108). He believed that his speed on the day in question was
typical of his speed on any other "normal rainy day"
(Tr. 111-112).
Mr. Austin conceded that there was a need to drive slower
under wet road conditions, and he confirmed that when driving at
a "normal rate of speed" he can "judge the rock trucks", but he
acknowledged the need to be aware of the presence of other
vehicles that are normally not on the roadway (Tr. 97).
Mr. Austin asserted that he was operating the truck "in a normal
safe capacity", and he stated that the truck cannot travel slower
than five (5) miles an hour and that it would have been
impossible for him to go any slower "without plumb stopping the
truck and just barely letting the wheels turn at a degree that
would take me all day to move" (Tr. 111) .
Mr. Austin's suggestion that he was travelling at a slow
rate of speed and that if he travelled any slower, the truck
would probably have come to a stop if it reached five miles an
hour is rejected as less than credible.
Based on the credible
testimony of the inspector, I conclude and find that Mr. Austin
was probably travelling in excess of 20 to 25 miles and hour down
the slippery and wet inclined roadway in question and that when
he initially observed the inspectoris vehicle heading uphill
approaching the curve in the road, he applied his brakes.
This
sudden braking action, which caused the wheels to lock, coupled
1Hi th the automatic stopping action of the transmission retarder 1
resulted
the truck going into a slide 1 and it was sliding as
it passed dangerous
close to the inspector's vehicle, nearly
colliding with
before slowing down or stopping after it was
well past the inspector's vehicle"
Mr" Austin testified that he sounded
a
horn when he
initial
observed the inspector's vehicle
the middle of the
roadway coming up the hill before the inspector moved completely
to the right hand side of the road as far as he could
(Tr. 93-94).
If Mr. Austin were travelling as slow as he
suggested, I believe that one can reasonably conclude that he
should have been able to at least slow down his empty truck, or
at least control it from sliding and nearly colliding with the
inspector 0 s vehicle which was "tucked in'' on the right inside of
the roadway .curve next to the berm.
However, this was not the
case. Under all of these circumstances, I conclude and find that
the preponderance of the credible evidence presented by the
petitioner establishes that the cited truck in question was being
operated at a speed which was not prudent or consistent with the
existing grade, traffic, and roadway conditions. Accordingly, I

1154

further conclude an find that the petitioner has established a
violation of 30 C.F.R. § 77.1607(c), and the contested citation
IS AFFIRMED.
Significant and Substantial Violation
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 violation is properly designed
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).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
(1)
the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4)
a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
1129,

In United States Steel Mining Company, Inc, 7 FMSHRC 1125,
(August 1985) the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula 11 requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984);
U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).

The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine

1155

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987) .
Inspector Lindsay based his 11 S&S" finding on the fact that
he had a near collision with the truck being operated by
Mr. Austin. He testified that Mr. Ashby told him that he "was
lucky" that he was not run over by the truck, and Mr. Ashby
alluded to a prior incident involving another truck on the same
haulage road under circumstances similar to the instant case
(Tr. 51-55). Mr. Lindsay also took into consideration prior MSHA
accident reports, the fact that other vehicles, such as
contractor and service vehicles, and inspectors vehicles, used
the roadway, and he was concerned that in the normal cause of
mining operations, a truck driver operating a truck too fast for
the prevailing road conditions would be involved in an accident.
Under the circumstances, Mr. Lindsay concluded that "there was a
pretty good probability that· at some point an accident of this
kind could happen", and that if it did, it could result in
serious and fatal injuries (Tr. 47).
After careful review and consideration of all of the
evidence in this case, I conclude and find that a measure of
danger to safety was contributed to by the violation, and that it
is reasonably likely that the operation of a truck on an inclined
roadway which is wet an slippery at a speed which not prudent or
consistent with the prevailing road conditions, and with the
presence of other vehicles on the roadway, would reasonably
likely result in an accident or collision.
If this were to
occur, I further conclude that it is reasonably likely that it
would result in injuries of a serious or fatal nature. Under all
:if these circumstancesr I conclude and find that the inspector's
S&S' 9 finding was reasonable and justified, and IT IS AFFIRMED.
History of Prior Violations
An MSHA computer print-out reflects that for the period
beginning on October 3, 1990, the respondent paid civil penalty
assessments totally $2,036, for 49 violations, all of which were
issued as section 104(a) citations. Thirty-seven (37) of the
citations were assessed under MSHA's "regular formula 11 assessment
procedures, and twelve (12) were assessed under MSHA's "single
penalty 11 procedures. None of the violations were "specially
assessed 11 •
I take note of the fact that the respondent's compliance
record does not include any prior violations of 30 C.F.R.
§ 77ol607(c).
I cannot conclude that the respondent's history of
prior violations is such as to warrant any additional increase in
the civil penalty assessment which I have made for the contested
violation in this case.

1156

Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The parties have agreed that the respondent is a small coal
tipple operator (Tr. 5). The pleadings filed in this case
include an MSHA proposed assessment Form 1000-179, which reflects
"2,161 production tons or hours worked per year" and the size of
the mine as "o production tons or hours worked per year". A copy
of a "Proposed Assessment Data Sheet" (Exhibit P-7), reflects
that for the calendar year 1989, the respondent's total
"Hrs/tonnage" was 2,161, and no hours or production for calendar
year 1990.
Respondent's owner and operator James Ashby stated that any
civil penalty assessments in this case would have to be paid from
his personal funds and that the company has no money to pay. He
stated that he currently employs fourteen people and operates
one-to-three days a week processing 7,500 to 23,000 tons of coal
through the preparation plant and tipple. However, the coal has
been stockpiled awaiting shipment to the Pittston Coal Company
which is his only customer at this time. Although the haulage
trucks drivers are employed by his company, the Pittston Company
permits him to use their trucks. He confirmed that he does not
own or operate any other mining operations, and that when he is
in full production he processes approximately 45,000 to 50,000
tons a month (Tr. 12-13; 134-137).
Mr. Ashby further indicated that he had previously agreed to
pay the two $500 civil penalties for the respirable dust
violations and that he advised an MSHA official that nr 0 ve got no
problem with thato
I~ll pay it'" (Tro 11)
In response to a
question as to whether or not the payment of the J'.:1.?cll amount of
penalties assessed for the three citations
question
would put him out of business, Mr. Ashby replied "It would be
tougho
It would hurt a lot" (Tr. 9).
o

After careful review and consideration of all ':Jf the
evidence
case 1 I cannot conclude that the payment of the
c
penalty assessments in this case will put the respondent
out of business. However, I have considered the
us
unrebutted assertions with respect to his current mining
operation and have adjusted the initial proposed
l penalty
assessment for Citation No. 3352852.
Negligence
The evidence establishes that Mr. Ashby had posted some
speed limit and other signs on his property and that he had
cautioned Mr. Austin to be careful and to keep his truck under
control while driving the haulage roads (Tr. 114). Mr. Ashby
confirmed that he fired his own son for driving too fast on the
property, and Mr. Austin confirmed that Mr. Ashby conducted

1157

regular safety meetings with drivers and instructed them to drive
carefully.
Inspector Lindsay confirmed that he based his
"moderate" negligence finding on the fact that the respondent may
not have been aware of the fact that Mr. Austin was driving too
fast for the existing·road conditions. Under all of these
circumstances, I conclude and find that the cited violative
condition was the result of a moderate-to-low degree of
negligence on the part of the respondent and I have taken this
into consideration in the civil penalty assessment which I have
made for the violation.
Gravity
Based on all of the testimony and evidence adduced in this
case, including my 11 S&S 11 findings, I believe that the inspector
was most fortunate in avoiding a collision with the truck in
question.
Accordingly, I conclude and find that the violation
was very serious.
Good Faith Compliance
The evidence establishes that the respondent timely abated
the violation in good faith, and the inspector confirmed that the
respondent responded in a positive and cooperative manner by
instructing all truck drivers to maintain safe speeds under all
roadway conditions.
I have taken this into consideration in this
case.
Civil Penalty Assessments

As noted earlier, the respondent agreed to settle the two
respirable dust violations by paying the full amount of the
proposed civil penalty assessments. With respect to the
remaining citation, which I have affirmed, and on the basis of
the foregoing findings and conclusions concerning the civil
penalty criteria found in section 110(1) of the Act, I conclude
and f
that a
penalty assessment of $125 is reasonable
and appropriate.
ORDER
The respondent IS ORDERED to pay the following civil penalty
assessments within thirty (30) days of this decision and order.
Payment is to be made to MSHA, and upon receipt thereof, this
matter is dismissed.

1158

30 C.F.R. Section

Citation No.
9975365
9975366
3352852

10/11/90
10/11/90
10/4/90

71. 208 (a)
71. 208 (a)

77.1607(c)

Assessment
$500
$500
$125

~{!u~~
Administrative Law Judge

Distribution:
Caryl L. Casden, Esq., Office-of theSolicitor, U.S. Department
of Labor, Room 516, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Mr. James Ashby, President, Ramar Coal Co., Inc. P.O. Box 622,
Oakwood, VA 24631
(Certified Mail)
/ml

1159

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUL 101992
SECRETARY OF LABOR,
MINE SAFETY AND HE~LTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 92-16
A. C. No. 36-07783-03523

\l.

Docket No. PENN 92-171
A. C. No. 36-07783-03524

HICKORY COAL COMPANY,
Respondent

Docket No. PENN 92-172
A. C. No. 36-07783-03525
Docket No. PENN 92-304
A. C. No. 36-07783-03526
Slope No. 1 Mine
DECISION APPROVING SETTLEMENT
Appearances~

Joseph T. Crawford, Esq., Anthony G. O'Malley, Jr.,
Esq., Office of the Solicitor, u. s. Department of
Labor 1 Philadelphia,, Pennsylvania, for the

s

l

, Hickory Coal Company, for

Respondent.
Before:

Judge Maurer
of these cases, which was held on June 17,
" Pennsylvania, the parties jointly moved for
a settlement after the testimony of the first two

government w
Docket: l',To. PENN 92-16 involves a single section 104 (d) (1)
c
ion, citation No. 2933291.
The parties requested a
50 percent reduction in the $400 assessed penalty based on the
respondent 1 s limited ability to pay and the current nonproducing
character of the mine.
Docket No. PENN 92-171 contains three section 104(a)
citations assessed at a total amount of $162.
Settlement is
proposed to reduce the penalty for Citation No. 2933297 from $20
to $12; and Citation Nos. 2934879 and 3079884 by 50 percent to
$71.
The same rationale for the settlement reductions prevails
throughout this decision.

1160

Docket No. PENN 92-172 involves five section 104(a)-104(b)
citations.
It is proposed to reduce Citation Nos. 2934803 and
3079392 from $140 to $84, respectively. With regard to Citation
Nos. 2933292, 2934801, and 3079391, a 50 percent reduction to
$245 is proposed.
Lastly, Docket No. PENN 92-304 contains a single
section 104(a) citation. It is proposed to reduce the assessment
thereon from $750 to $334.
This leaves the respondent with a total civil penalty to pay
of $1030.
It is proposed that the initial $180 be paid within
90 days of the date of this decision, while the remaining $850
may be paid in $50 monthly installments, beginning no later than
90 days after the date of this decision.
Furthermore, there are nonmonetary aspects of the settlement
agreement. Mr. Kutsey has ag.r.eed that on the day that he intends
to reopen his mine, he will contact MSHA's Pottsville office. At
that time, MSHA inspectors will accompany Mr. Kutsey in an
inspection of his mine. Any citations that are issued will not,
however, be assessed. Abatement will be required, of course.
In
addition, any outstanding section 104(b) orders pertaining to
this mine will be fully abated before coal is mined. Finally,
Mr. Kutsey has agreed that he will not impede the MSHA inspection
of his mine in any way, forever.
I granted this motion on the record at the hearing as I do
believe that the proffered settlement, in toto, is appropriate
under the criteria set forth in section llO(i) of the Act and in
the best interest of both the parties to these cases and the
nubl
ORDER
It

hereby ORDERED that:

~.
ion Nos. 2933291, 2933297, 2934879, 3079884,
2934803, 3079392, 2933292, 2934801, 3079391 and 2934258 ARE
AFFIRMED.

2. Respondent, Hickory Coal Company, IS ORDERED TO PAY
civil penalties
the total amount of $1030. Of that amount,
$180 is due within 90 days of the date of this dee ion. The
remaining $850 will be paid in $50 monthly installments also
beginning within 90 days of the date of this decision, and
continuing for 17 months or until paid in full.

1161

3. Respondent shall also fully comply with all the
nonmonetary aspects of the settlement agreement approved herein
as more fully set out earlier in this decision.

aurer
s rative Law Judge
Distribution:
Joseph T. Crawford, Esq., Anthony G. O'Malley, Esq., Office of
the Solicitor, U. S. Department of Labor, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Mr. William Kutsey, Hickory Coal Company, R.D. #3, Box 479,
Pine Grove, PA 17963 (CertifTed Mail)
dcp

1162

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

.
.
4

v.

Docket No. WEST 91-27-M
A.C. No. 02-02497-05502
Lake Juniper
Docket No. WEST 91-170-M
A.C. No. 02-02497-05503

GARRATT COMPANY q

Lake Juniper (Portable)

Respondent

DECISION
'

Appearances~

Jan Mn Coplick, Esq., Office of the Solicitor, U.S.
Department of Laborr San Francisco, California,
for Petitioneri
Mr. Richard L. Neal, Oimer, GARRATT COMPANY, Kingman, Arizona,
pro~·
·

Bef oreg

Judge Morris

These cases are civil penalty proceedings initiated by Petitioner against Respondent pursuant to the Federal Mine Safety and
Health Act of 1977u 30 U.S.C. § 801 1 et~ (the 11 Actn).
The
civil penalties sought here are for violations of the Act as well
as vi
tions of mandatory regulations .promulgated pursuant to

Act
Apri

A hearing on the merits was held in Kingman~ Arizona 1 on
2lg 19920 The
ties filed.post-trial briefs"

Having considered the hearing evidence and the record as a
wholeu I find that a preponderance of the substantialr reliable,
and probative evidence establishes the following Findings of
Fact:
FINDINGS OF FACT

1.

COVY LUMPKINS, JR., now retired, was a federal mine

inspector for 14 years.

(Tr. 12-14,.

1163

2. Mro Lumpkins is an individual experienced in mining.
(Tr. 14) •

3. Mr. Lumpkins 0 initial inspection of the Garrett Company
was a C.A.V. complimentary assistance visit.
(Tr. 16).
4.
In this visit to the site, Mr. Lumpkins explained the
regulations to Mr. Neal.
So Mr. Neal 0 s property has a double gate.
buzzerv guardu or guard shack at the entrance.

There was no

6.
Since the gate was unlockedu Mr. Lumpkins drove in to
the plant.

7. Mr. Lumpkins keeps first aid material as well as safety
equipment in the car.
(Tr. ,?O) •
8.
there is no guard, the inspector will usually go
directly to the mine or safety office.
(Tr. 20).

9.
off ice.

Mr. Nealus company did not have a guard or a safety
(Tr. 2 0) •

10. Subsequently, on his first regular inspection no citations were issued. Mr. Neal was very cooperative and he was in
the process of correcting the violations previously noted at the
time of the C.A.V. inspection.
(Tr. 21).
2
' r..--:~

• . L .:-

f

st

a:r MSHA inspec

on was

January 1990.

,,

Ivir"

Lumpkins testified he would not walk under any con-

veyor belts

that would create a hazardous situation.

(Tr o 24 I o
__ ·.:. \.cJas at che :c z·st inspection when the Inspector moved
c.t vlr l'\!eal.' s requesto
ter the request.u he parked opposi te the
eanout pi to
{Tro 25u ,26) o

c~:.s

ca~

o

~o
The place where he parked was out of the way of the
machineryo
Tro 25
Mro Lumpkins parked where Mro Neal designated and he doesn~t recall Mr. Neal us correcting him after that.
{ Tr o 2 5 v 6 3 ) o
Q

150 In the course of the inspections, Mr. Neal never again
complained concerning the place where the Inspector parked his
caro
(Tro 26)"

1164

16. In April 1990y the second regular MSHA inspection
resulted in the issuance of three
tations.
(Tr. 26, 27).
Citation No. 3600335

170 Citation No. 3600335 1 was issued when the Inspector
observed the electric power cables were not properly bushed and
connected at the switch station.
(Tr. 2 8).
18.
The Inspector testified as to gravityQ likelihood of an
accidentu and severity of any injury (Tr. 28-30) and the operator0s negligence.

19. The Inspector considered it a non-S&S violation.
cables themselves were well in§ulat
(Tr. 28q 29).

The

DISCUSSION
I agreeu as Mr. Nealus bri
statesp that this condition was
aba
before the plant was operated. However, the Inspector's
uncontroverted testimony establishes a violation. Abatement of a
violative condition does not excuse the original violation.
tation No. 3600335 should be

§

.12008.

firmed.

is Citation all es Re
ent
elated 30 C.F.R.
The regulation provides as followsg

:res and
ted
tely where they
or out of electrical compartmentso
es
l
enter metal
frames of motorsf splice boxesv and electrical
compartments only through
fittingso When
insulated wiresv other than cables, pass through
metal f ramesv the holes shall be substantially
bushed with insulated bushings.
Power

1165

Citation No. 3600336
20. Citation 3600336 2 was issued when the Inspector observed there was no cover for the junction box on an electric
motoro
The junction box was 8 or 10 feet off the ground.
(Tr.
31, 57).
If a person was servicing the motor, he could contact
the box.
(Tr. 57).
DISCUSSION
The uncontroverted testimony of Inspector Lumpkins establishes the operator violated the regulation. Mr. Neal did not
testifyu but in his post-trial brief he states that no one saw
the cover fall off the electrical box.
Assuming there was evidence to support this view, i t cannot
prevail as a defense.
It is well established that the Mine Act
imposes liability without fault.
See Asarco, Inc. - Northwestern Mining v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989 at 11971198) ~ 8 FMSHRC 1632 (1986)v Western Fuels Utah, Inc. v. FMSHRC,
870 Fo2d 711 (DoCo Ciro 1989) o
21. A similar sort of penalty rating on the same 00.sis as
discussed in the prior citation would result in a low civil
p ena 1 ty o
(Tr. 31) •
Citation No" 3600336 should be affirmed.

This Citation alleges Resp6ndent violated 30 CoF.R.
56.12032 which provides as
lows:

§ S6ol2032

Inspection and cover plateso

Inspection and cover plates on electrical
equipment and junction boxes shall be kept in
place at all times except during testing or
repair so

1166

Citation No. 3600339
22. Citation No. 3600339 3 was issued when the Inspector found the automatic reverse alarm was not working on the
operator's front-end loader.
(Tr. 32). Mr. Neal stated the buzzer had been working the morning of the inspection.
{Tr. 60).

23.
The failure to have an alarm on the vehicle could result in someone being killed or injured when the vehicle backs up.
(Tr o 3 2) •
The Inspector's penalty factors would result in a low
(Tr. 33)o
25. Until this point in ,,time, Mr. Neal's and Inspector
Lumpkins' relationship was fairly cordial1 Mr. Neal never expressed any concern that the Inspector was creating a safety
hazard.
(Tr. 33).
DISCUSSION
Mr. Neal did not testify in these proceedings and his statement that he was unaware of the failure of the signal is contained in his post-trial brief. Even so, as previously stated,
an operator's failure to know of a violative condition does not
relieve him of liability under the Mine Act.

tation Noo 3600339 should be affirmed.

This Citation alleges 30 c:FoR
provides as follows~
§ 56.1~132

§

56.14132(a) which

Horns and backup alarms$

(a) Manually operated horns or other audible warning devices provided on self-propelled
mobile equipment as a safety feature shall be
maintained in functional condition.

1167

Citation No. 3600491
26. Citation No. 3600491 4 was issued on May 22, 1990,
when Inspector Lumpkins conducted a follow-up type inspection on
the operator's property.
(Tr. 38).

4
This Citation alleges Respondent violated Section 103(a)
of the Mine Act which provides as follows:
INSPECTIONSu INVESTIGATIONS, AND RECORDKEEPING
Sec. 103.
(a) Authorized representatives of the
Secretary or the Secretary of Health, F.ducation, and
Welfare shall make frequent inspections and investigations in coal or other mines each year for the purpose of ( 1) obtaining, utilizing, and disseminating
information relating to health and safety conditions,
the causes of accidents, and the causes of diseases
and physical impairments originating in such mines,
(2) gathering information with respect to mandatory
health or safety standards, {3) determining whether
an imminent danger exists, and (4) determining whether there is compliance with the mandatory health or
safety standards or with any citation, order, or decision issued under this title or other requirements of
this Act.
In carrying out the requirements of this
subsection~ no advance notice of an inspection shall
be provided to any personQ except that in carrying
out the requirements of clauses (1) and (2) of this
subsectionv the Secretary of Healthv Education 9 and
Welfare may give advance notice of inspectionso
In
carrying out the requirements of clauses (3) and (4)
of this subsection, the Secretary shall make inspections of each underground coal or other mine in its
entirety at least four times a year and of each surface coal or other mine in its entirety at least two
times a yearo
The Secretary shall develop guidelines
for additional inspections of mines based on criteria
including 0 but not limited to 0 the hazards found in
mines subject to this Act 0 and his experience under
this Act and other health and safety lawso For the
purpose of making any inspection or investigation
under this Act, the Secretary, or the Secretary of
Health, F.ducation, and Welfare, with respect to fulfilling his responsibilities under this Act, or any
authorized representative of the Secretary of Health,
Education, and Welfare, shall have a right of entry
to, upon, or through any coal or other mine.

1168

27. Mr. Lumpkins found the prior violations had been
corrected.
(Tr. 35).
28. Mr. Campa, Mr. Neal's a:nployee, did not express any
concern that the Inspector was violating any safety rules or
creating any safety hazards.
(Tr. 35).
29. Mr. Neal appeared at the job site and 11 jumped in to the
middle" of the Inspector. Mr. Neal said the Inspector was trespassing and that he had no business on the property.
(Tr. 35,
36).

The Inspector tried to explain the right of entry to
30.
Mr. Neal. He further tried to show him his photo identification.
(Tr. 3 6) •
31. The identification shows that Mr. Lumpkins is the
authorized representative of the Secretary of Labor.
(Tr. 37).
32. After their confrontation, Mr. Lumpkins stood ~ his
car until the deputy sheriff arrived. Upon his arrival the
Inspector showed him his I .D. and Section 103(a) of the Mine Act.
(Tr. 3 7 , 3 8) •
33.
Sergeant Hayes of the sheriff's office arrived. He
said it was necessary for the parties to appear before the Justice of the Peace in Kingman, Arizona.
(Tr. 40).
Mro Lumpkins identified a document shown as a "Summonsv1
Criminal Complain to ua Also attached was 11 A Motion to Dismiss for Lack of Evidenceo uu
'Ihese documents were served cy- mail
on Mro Lumpkinso
(Tro 44u Exo P-1) o

340

and a

350 Mro Neal did most of the talking at the site. He
claimed the Inspector was trespassing and that he had no right to
be on
e operator~s propertyo
(Tro 40)o
36a
The Judge in Kingman wanted Mr o Neal and the Inspector
to resolve their differences privatelyv but Mro Neal refused.
Tr o 41} o
,
37a
The Court bailiffs finally advised Mr. Lumpkins that he
was free to leave the Court facilities.

38. The following day, Mr. Lumpkins communicated with his
supervisor at the MSHA office in Phoenix.
(Tr. 46).

1169

39. The Sheriff's department set up a procedure to assist
the Inspector in serving a denial of entry Citation on Mr. Neal.
(Tr. 4 9) •
40. sergeant Hayes accompanied Mr. Lumpkins when he returned
to Mr. Neal's property.
(Tr. 49).
41.
The Inspector parked his automobile in the area where
Sergeant Hayes parked.
(Tr. 50).
420
The Citation on May 24 was for a denial of entry that
occurred on May 22.
(Tr. 50).

43. Mr. Neal did not comply and in the 30 minutes given to
him to abate, he remarked to Sergeant Hayes that he was afraid
Mr. Lumpkins was going to hurt himself, but no other comments
were made why he had refused entry.
(Tr. 53).
44. After the 30-minute period expired, Deputy Hayes handed
the denial of entry citation to Mr. Neal because he refused to
accept it from Mro Lumpkins.
(Tr. 54).

45. Mr. Lumpkins recalled that Mr. Neal told him the safety
policy of the plant was not to get within 25 feet of operating
belts. However, Mr. Lumpkins doesn't recall Mr. Neal's shutting
down at any time when the Inspector came on the property.
(Tr. 6 3) •
460
The plant was shut down for repair or servicing when
Mro Lumpkins inspected
It seemed like it was normally shut down
~·Jhen the Inspector entered the property.
(Tr o 6 3) .

470 An MSHA inspector is not supposed to jeopardize himself
during an inspectiono
(Tr. 63)o If he did sou the plant safety
manager could notify Mro Lumpkins 0 supervisoro
~Tro 64)o
480
Garratt Company is ~ small operationu a simple screening
plant with three beltso
(Tr. 66)
o

490
Jack Sepulvedau an MSHA federal mine inspectorv was
Mro Lumpkins 0 acting supervisor.
(Tr. 71). Mro Lumpkins accompanied Mr. Sepulveda on the Wesapi Mining property.
(Tro 71).

50. A business card sul::mitted in evidence indicates William
C. Vanderwall is an Arizona State Mine Inspector.
(Tr. 74; Ex.
R-1).

51. Larry Nelson is Mr. Lumpkins' supervisor.
MSHA's District Manager.
(Tr. 75).

1170

David Park is

52. Mr. Neal told Mr. Lumpkins that he didn't object to the
plant 1 s being inspected but the Inspector would have to get
Mr. Neal's permission before entering the property. (Tr. 80).
Mr. Lumpkins said he could not accept such an arrangement.
( Tr • 7 9 , 8 0) •
53.
In the Inspector's opinion, signing in at a mine gate
is not a pre-condition of entry.
(Tr. 80, 81).

54. Other mining operations have designated parking areas.
(Tr. 8 2) o
Mr. Lumpkins recalled Officer Hayes 9 saying that
Mr. Neal had rescinded his position of criminal trespass and that
Mr. Lumpkins could inspect the plant.
(Tr. 83}. Mr. Lumpkins
nevertheless wrote the restraint of entry because Mr. Neal required prior notice of any inspection.
(Tr. 83; 84).
55.

56.
In July, after the previously discussed inspections,
Mr. Lumpkins and Jack Sepulveda made a non-inspection visit to
Mr. Neal 0 s property. At that time Mr. Neal again stated
Mr. Lumpkins could not come on the property unless his conditions
stated earlier were met.
(Tr. 87, 89).

57. The conditions sought to be imposed ~Mr. Neal were
that the Inspector be accompanied by a Deputy Sheriff, that
Mr. Neal be notified in advance, and that he consent to the entry.
(Tr? 9 0) o
5Bo
.Sh

LE1'5: OORWOOD JB!AYES 11 as an employee of the Mojave County
fice, accompanied Mro Lumpkins to Mr, Neal us small

planto

cO

o

59

Sergeant Hayes didn 1 t understand that Mr o Neal had a
on against Mro Lumpkinso
Tr 94)o

600

Sergeant Hayes empha zed he was on the Garrett property
rr.rkeep the peaceo"
{Tro 94)o

y

claimed the Inspector and the sergeant were
criminal trespass. However 11 he did not prevent the two
om walking around the propertyo
(Tr. 95).

6L.

guilty

men

(Tro 93u 94

Mr o Neal

62. Mr. Neal stated that the local Kingman, Arizona, Judge
should rule on whether Mro Lumpkins had the right to enter the
property.
CTr..
9 5, 9 6) "

63. Sergeant Hayes heard Mr. Neal explain to Mr. Lumpkins
that he wasn't restraining him and he was free to inspect the

1171

plant. However, i t seemed to Sergeant Hayes that the whole problem was that Mr. Lumpkins was to get permission from Mr. Neal to
enter the property.
(Tr. 96).
·
64.
Sergeant Hayes recalled that Mr. Neal told Mr. Lumpkins
he could go ahead and conduct an inspection.
(Tr. 97).

65. Sergeant Hayes did not recall any physical restraints or
conditions put on Mr. Lumpkins.
{Tr. 98).
66. During the 30-minute abatement period, the parties involved stood by the police car.
(Tr. 99).
670 Sergeant Hayes saw no physical or verbal abuse while he
was on the site.
(Tr. 99).

68. Sergeant Hayes described Mr. Neal as adamant that
Mr. Lumpkins was trespassing.·· He kept insisting he had to return
to the gate and get Mr. Neal's permission.
(Tr. 100-101).
69. Mr. Neal told Sergeant Hayes that Mr. Lumpkins was a
safety hazard and that he had parked his car in an improper place.
(Tr o 10 3) •
70. Sergeant Hayes identified an audiotape as well as a
transcription of his statement to the Secretary's counsel.
(Tro 104-107; Ex. P-2, P~2-A).
The Judge reviewed the tape [Ex.
P-2(a)] and, while there are frequent background noises, the
transcription (Exo P-2) is reasonably accurate.
710
Sergeant Hayes believed the proper course of action was
.. or Mro Neal to fi
a complaint with the Arizona Courto
Tz: c,

ll

16

o

720
The declaration of Jack Sepulveda was received in evidence by agreement of the parties.
On July 19Q 1990r lV.iro Sepulveda inspected the Wesapi Portable Mine which is located on the property of Mro Nealg Mr. Neal
advised Mro Sepulveda that Mr Lumpkins could not inspect the
mine unless he was accompanied by a deputy sheriff. His reason
was that he was afraid Mro Lumpkins might be injured.
If he
walked under a conveyor beltQ rocks could fall on him.
[Tr. 12li
Ex o P- 3
P-3 (a ) ]
Q

DISCUSSION
Mr. Neal in his post-trial brief, initially asserts that
Mr. Lumpkins knew the company's parking and safety rules; nevertheless, he failed to follow them.
Specifically, Mr. Neal cites

1172

the transcript at page 75, lines 10-12, as well as the testimony
of witnesses Campa, Riccardi, and Hanson.
The portion of the transcript apparently relied on by
Mr. Neal reads:

( Tr

o

Q.

Did Larry Nelson ever discuss the fact that you may
have been parking your vehicle in a hazardous position and entering under dangerous belts?

Ao

No. The only thing I remember is the parking business, and you told me where you wanted me to park,
and that's where I parked. And--

Q.

Okay, but Larry Nelson never discussed any of that
with you, right?

A.

Offhand I can't remember.
I don't recall.

He could have, but I,

7 5 v 1 in es 7 -1 6 ) .,

I am aware of the testimony of Mr. Neal's witnesses.
SHANE CAMPA, a loader operator, testified he observed
Mr. Lumpkins park behind the loader.
(Tr. 147, 149). Further,
more than once he saw Mr. Lumpkin walk under the feeder belt.
{Tr o 150) o

RICHARD So RICCARDiu a loader and screening plant operator u on one occasion observed Mr. Lumpkins park his car in the
line of travel of the loader. Further, on one occasion he observed Mro Lumpkins walk under the Noo 1 feeder belt which carries heavy rock materialo
(Tro 131)0
LLEWELLYN BENRY BANSONP experienced in the operation of
heavy equipmentu discussed with Jack Sepulveda that the Inspector
was parking his vehicle in a hazardous locationo Further, he
could be struck by rocks when walking under the conveyor beltso
(Tr 16 6) o
Inspector Lumpkins also stated he was nearing retirement and
was concerned he would lose his job.
(Tr. 167, 170).
The principal focus of Mr. Neal's evidence and argl.'lnents are
directed at the activities of Inspector Lumpkins. However, that
evidence and arguments are not relevant to the denial of entry
Citation.

1173

The right of entry is provided by the Mine Act itself.
Section 103(a) alleged in the Citation to have been violated here by
the operator in its pertinent part provides:
Authorized representatives of the Secretary
shall make frequent inspections and investigations in coal or other mines ••• In carrying
out the requirements of this subsection, no advance notice of an inspection shall be provided
o•o
[and the authorized representatives] shall
have a right of entry to, upon, or through any
o o o
mineo
The U .So Supreme Courtv in construing the Mine Act, has explicitly recognized the fundamental importance of the right of
entry provisionsv as discussed in the case of Donovan v. Dewey,
452 UoS. § 593, 69 L.Ed.2d 262 (1981)).
In Dewey, the Supreme
Court stated that:

Congress was plainly aware that the mining
industry is among the most hazardous in the
country and that the poor health and safety record of this industry has significant deleterious
effects on interstate commerce.
See also Tracey & Partners, et al., 11 FMSHRC 1457 (August
1989), wherein the Commission held that Section 103(a) of the
Mine Act confers on MSHA a broad right of entry to mines for the
purposes of inspection and investigationo
(11 FMSHRC at 146l)o
Mro Nealr :Ln
s brief" states that at no time did he stop
·:.he Inspector :Ez-om entering the property and perfonning his inspectiono
If the evidence supports Mro Nealv the Citation should
be vaca tedo

e issuance of a criminal trespass charge on the complaint
e MSHA Inspector constituted 0 as a matter
law 0 a restraint
the Inspector from entering the mine
property
(See Ex
It is further uncontroverted that
Mro Neal 0 s restraint conditions were that the Inspector be accompani
~J the deputy sheriffif that Mro Neal be advised in advance7 and that he consent to the entryo
(Tro 90) o
f

Mro Neal against
o

o

}

o

Mro Neal also insisted that the Inspector return to the
plant entrance and request his pennission to conduct an inspectiono
In effect, Mr. Neal claims he is entitled to prior notice
of the Inspector's visit. However, such prior notice would run
directly contrary to Section 103(a), which specifically states
that 11 no advance notice of an inspection shall be provided to any
persone...
n
$

1174

FURTHER DISCUSSION
It was also claimed at the hearing that an inspection of the
"Wesapi" Mine (apparently located on Mr. Neal's property) was
more stringent than the instant inspection. However, Mr. Neal
did not raise this issue in his brief and the evidence (Ex. P-4)
shows the "Wesapi 11 inspection was at least equally as stringent
as the inspection in contest.
For the foregoing reasons, Citation No. 3600491 should be
affirmed.
CIVIL PENALTIES
The statutory criteria to assess civil penalties is
contained in Section 110( i) 'of· the Mine Act.
The evidence establishes that Respondent is a small operator
and the penalties contained in the order of this decision are
appropriate in relation to the company's size.
The record does not present any information concerning the
operator's financial condition. 'Iherefore, in the absence of any
facts to the contrary, t find the payment of penalties will not
cause the Respondent to discontinue in business. Buffalo Mining
Co., 2 IBMA 226 (1973) and Associated Drilling, Inc., 3 IBMA 226
{1973)
0

The operator was negligent in that the first three violaThe company was further
n
igent as to the 103(a) Citation? inasmuch as it should have
known of the Inspectorus right of entry.

·cive conditions were open and obvious o

There was no evidence showing any adverse prior violations.
agree with the Inspector 3 s evaluation that the gravity as
to the first three violations was J.ow. However 11 the right of
en
a Keystone to the Mine AcL Accordinglyu I consider the
denial of that right to present a situation of high gravity.
The operator showed statutory good faith in abating the four
Citations.
On l:alance, I believe the penalties assessed in the order of
this decision are appropriate.

Accordingly, I enter the following:

1175

ORDER

1. Citation No. 3600335 is AFFIRMED and a civil penalty
of $20 is ASSESSED.
2. Citation No. 3600336 is AFFIRMED and a civil penalty
of $20 is ASSESSED.
3. Ci ta ti on No. 3600339 is AFFIRMED and a civil penalty
of $20 is ASSESSED.
4. Citation No. 3600491 is AFFIRMED and a civil penalty
of $250 is ASSESSED.

Judge

Distributiong
Jan Mo Coplick 0 Esqov Office of the Solicitoru U.S. Department of
Labor 9 71 Stevenson Street #1110 0 San Franciscou CA 94105-2999
(Certified Mail)
'
Mro Richard Lo Neal 0 0Wner 0 GARRATT COMPANY, 817 South Shore
Driveu Kingmanu AZ 86401 (Certified Mail)

ek

1176

FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

July 15, 1992
ROGER VOGT,

Comp la i nan t

...

DISCRIMINATION PROCEEDING

0

Docket No. WEST 92-225-DM
RM MD 92-02

:
:
:

v.
N.A. DEGERSTROM, INC., and
ZOR'l'MAN MINING, INC.,
Respondent

Zortman Mining
G

e

ORDER OF PARTIAL DISMISSAL
Before:

Judge Morris

Complainant Vogt and Respondent N.A. Degerstrom, Inc.,
reached an amicable settlement on the merits and moved that the
complaint herein be dismissed betweem said parties.
Accordingly, I enter the following:
ORDER
~o

The complaint is DISMISSED ~ith prejudice as to

:i~espondent.

N oA o Degerst.romo

2o The complaint will remain pending as to Zortman Mining,
Inc .. IJ and the hearing will proceed as scheduled on August 19,
1992 17 in Kalispell 0 M:>ntanao

ris
rative Law Judge
Distributiong
Paul R. lBffeman, Esq., CURE, BORER & DAVIS,
Great Falls, MT 59403-2103

P.c., P.O. Box 2103,

Michael D. Cok, Esq., COK & WHEAT, 108 West Babcock, P.O. Box
1105, Bozeman, MT 59771-1105
Thomas E. Hattersley III, Esq., GOUGH, SHANAHAN, JOHNSON &
WATERMAN, 301 First National Bank Building, P.O. Box 1715,
Helena, MT 59624-1715
1177

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

22041

JUL 2 U\992

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 91-1398
A.C. No. 36-00907-03763

v.
Shannopin Mine
SHANNOPIN MINING COMPANY,
Respondent
DECISION
Appearances:

Theresa c. Timlin, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Joseph A. Yuhas, Esq., Shannopin Mining Company,
Barnesboro, Pennsylvania, for the Respondent.

Before~

Judge Koutras
Statement of the Case

proceeding concerns proposals for assessment of civil
9enalties filed by the petitioner against the respondent pursuant
to section 110 a) of the Federal Mine Safety and Health Act of
1977; 30 u.s.c. § 820(a)u seeking civil penalty assessments for
four alleged violations of certain mandatory safety standards
found in Parts 75 and 77v Title 30r Code of Federal Regulations.
·The respondent filed an answer contesting the alleged violations,
and a hearing was held
Washington, Pennsylvania. Three of the
violations were settled, and testimony and evidence was received
with respect to the remaining violation. The parties filed
posthearing briefs, and I have considered their respective
arguments in my adjudication of this matter.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

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

3.

30 C.F.R. § 75.1725(a}.

4.

Commission Rules, 29 C.F.R. § 2700.1 et seg.

1178

Issues
The issues presented are (1) whether the cited conditions or
practices constitute a violation of the cited standard; (2)
whether the alleged violation was significant and substantial
(S&S); and (3) the appropriate civil penalty to be assessed for
the violation taking into account the civil penalty assessment
criteria found in section llO(i) of the Act.
Stipulations
The parties stipulated to the following (Tr. 6; Exhibit
{ALJ-1)~

l.
The Shannopin Mine is owned and operated by the
respondent and it is subject to the jurisdiction of the Act.

2.

The presiding judge has jurisdiction in this proceeding.

3.
The citation and termination in this case were properly
served by a duly authorized representative of the Secretary
of Labor upon an agent of the respondent at the date and
place stated therein and may be admitted into evidence for
the purpose of establishing that they were issued.
4.
The parties stipulated to the authenticity of their
exhibits but not to the relevance or the truth of the
matters asserted therein.
5.

The alleged violation was abated in a timely fashion.

The respondent 1 s
story of assessed violations for the
two year period prior to the issuance of the subject
citation was 764
co

The imposition of the proposed civil penalty will have
no affect on the respondent's ability to remain in business.

7.

8. The respondent 1 s annual coal production is approximately
1,246,799 tons.

The parties decided to settle three of the contested
citations and they filed a motion pursuant to Commission Rule 30 1
29 C.F.R. § 2700.30(c), seeking approval of their proposed
settlements.
Testimony and evidence was received with respect
to the following citation which the parties were unable to
resolve by settlement (Exhibit P-A).
Section 104(a) "S&S" Citation No. 3702139, issued on May 24,
1991, by MSHA Inspector Ronald E. Hixson cites an alleged

1179

violation of mandatory safety standard 30 C.F.R. § 75.1725(a),
and the cited condition or practice is described as follows:
Shuttle car serial No. 6024 located in the 2 West
section was not being maintained in safe operating
condition.
The canopy was bent forward and there were
2 broken welds where the standards were previously
attached to the shuttle car. The shuttle car was
immediately removed from service. There were 4 citations issued under 75.1725(a) during the inspection
period 10/2/90 to 2/5/91.
Petitioner 1 s Testimony and Evidence
MSHA Inspector Ronald E. Hixson testified as to his
experience and training and he confirmed that he conducted a mine
inspection on May 24v 1991, and that he issued the contested
citation after finding that the cited shuttle car canopy was
damaged.
Mr. Hixson stated that the canopy appeared to be
striking the mine roof or some other object in the mine, and he
observed two broken welds on the inside standards or legs that
support the canopy and the canopy was leaning in a forward
position.
He believed that there was a danger for anyone to
operate the car in that condition.
The car was available for
operation and it was not locked out or tagged.
If a piece of
equipment is not safe, it should be locked and tagged out, or as
a minimum, tagged out. The car was located in the working
section and he had requested the section foreman to have someone
tram the car down the intake escapeway so that he could examine
it for permissibility. The power was off when Mr. Hixson
examined the
T:;::-. 7-13 i
c

Mr.

f
a ~opy of
inspection notes,
a s1<et.ch of t.he canopy: and he confirmed that it was

supported
four legsv or standards, one in each corner.
He
stated that the two broken welds were located on the two legs
closest to the
ide of the car and that the canopy was leaning
in a
towards the front of the car. The
standards ·were approximately 24 ·co 30 inches long, and they are
welded t.o the frame of the car to provide support for the canopy.
The broken welds were approximately "a couple of inches off" the
bottom of the standards.
He found nothing wrong with the welds
at the base of the standards and at the canopy roof. If the welds
were intact the canopy would be "in a straight up and down
position' 1 •
However with the broken and damaged welds, the
canopy was pushed forward.
He took no measurements and did not
know the degree of lean of the canopy, but 11 it was clearly
visible to the naked eye 11 (Tr. 13-18).
Mr. Hixson confirmed that he cited a violation of
section 75.1725 (a), but could have cited a violation of

1180

section 75.1710. However, he decided that section 75.1725(a) was
more appropriate because he was concerned about someone operating
the machine and he wanted to take it out of service. He believed
that the broken welds rendered the machine unsafe because the
canopy was obviously striking something very hard and he feared
that the canopy might fall into the operator's compartment and
injure the operator. He was also concerned that the canopy would
not withstand the pressure that it was designed and certified to
take in the event of a roof fall.
The fact that the mine has a
lot of reportable roof falls which have occurred above the roof
support anchorage zone added to his concern that the canopy was
not in a safe condition. He identified copies of MSHA
Form 7000-1, submitted by the respondent during the period
March 14, 1991 to March 11, 1992, reporting roof falls in the 1,
2, and 3 West sections of the mine, and he identified the areas
where the falls occurred on a mine map used in the course of the
hearing (Tr. 19-24; Exhibit P-D).
Mr. Hixson stated that he based his "significant and
substantial" hazard finding on the following (Tr. 25-26):
A.
I 1 ve got a canopy that's damaged through striking
something very hard.
I've got a situation where a canopy
could fall on somebody and hurt them, of which it has
happened in the past.
I've got a situation where I've got a canopy that is
supposed to withstand so many pounds of pressure in a
vertical position, and now I have one leaning in, not
totally horizontal, but it's leaning forward and the
standards are not straight up and down. And I have no
idea to know now whether it can withstand the pressures
that the certified engineer certified
will
withstand.
Mr. Hixson stated that his ''S&S" hazard finding was also
influenced by the fact that he did not know who might be
operating the shuttle car at any given time. Although an
operator who was aware of the fact that the damaged canopy was
striking the roof might avoid that particular route of travel,
someone assigned to drive that machine who was not aware of the
tramming route of travel or that the canopy was striking the roof
might take a hazardous route causing enough additional damage
which might result in the collapse of the canopy,
If the damaged
canopy collapsed and fell on the machine operator, it was
reasonably .likely that he would be injured.
In the event of a
roof fall, and the canopy did not hold the roof material, the
operator could be killed (Tr. 26-27). Mr. Hixson was aware of
past incidents where a canopy has collapsed and injured an
operator, but not at the respondent's mine (Tr. 28-29;
Exhibit P-E).

1181

Mr. Hixson confirmed that he found a moderate degree of
negligence and that he based this finding on the fact that the
canopy was going to be repaired on an idle shift or over the
weekend (Tr. 29). However 1 he also believed that the canopy was
unsafe and that it should have been repaired immediately. A new
canopy was installed and the citation was terminated (Tr. 30).
on cross-examination, Mr. Hixson confirmed that he opted to
cite a violation of section 75.1725 rather than 75.1710, because
he believed that the shuttle car was unsafe to operate and that
it would have endangered anyone who operated the car if he had
not taken it out of service. He did not believed that citing
section 75.1725 was contrary to the MSHA policy manual instructions that section 75.1725 is only to be cited if no other
regulation applies. He did not believe that section 75.1710, was
applicable because the canopy, as originally installed, was
proper, and that section does not address canopy maintenance
(Tr. 31-32}.
Mr. Hixson confirmed that he did not issue an imminent
danger order because he observed no one under the canopy and the
car was parked in the cross cut. In support of his "reasonably
likely and fatal" injury gravity finding, Mr. Hixson explained
that since the damaged canopy was striking something very hard,
he believed that it could happen again and that further damage
could cause it to topple in on the operator. Further, with the
two broken welds and the canopy leaning, he did not know whether
it would withstand or hold the weight as it was originally
certified by an engineer. Although he believed that he was
qualified to determine if the canopy was unsafe at the time he
observed it he was not qualified at that time to determine
whether or not
w·ould withstand 1800 pounds (Tr. 32-33).

Mro
confirmed that he made no measurements, and he
estimated that the roof of the canopy would be three to five
inches above the head of the operator, but that this would depend
on the particular operator. The average mining height in the
2 West section averaged six to seven feet and he had no trouble
·wa.l
anywhere
the section (Tro 32-33).
Mr. Hixson explained his understanding of the meaning of
reasonably likely to occur 11 as follows~ 11 •
the continued
presence of the situation, it s reasonably likely that it could
occur . . . that if I continue to let it run that there's the
possibility that somebody could be hurt" (Tr. 33). He further
explained that the 2 West section was a relatively new section,
and that the large number of falls in the 1, 2, and 3 West
sections led him to believe that "If you plot the falls across
there, the likelihood of a fall occurring is reasonably likely to
occur in that area. That's a large number of falls for an area
of that size" (Tr. 34) .
11

o

1182

•

Mr. Hixson agreed that a person walking next to the shuttle
car and the miner helper are not required to have a canopy over
their heads, but that section 75.1710, requires that face haulage
equipment have a canopy for the operator. He pointed out,
however, that most fall problems occur inby the last open
crosscut where equipment operators spend most of their day at the
edge of unsupported roof and that the regulations were written to
provide them with as much protection as possible since they are
disturbing the roof and causing most of the vibration
(Tr. 35-36).
Mr. Hixson conceded that he had no way of testing the canopy
underground as an engineer would to determine whether it was
sufficient to hold its certified load. He stated that the canopy
is designed to hold a vertical load rather than a horizontal
load, and he believed that the broken welds on two of the canopy
legs affected the integrity of the canopy.
If the welds were
intact, the legs would have been straight up and down, and they
would not have been damaged even if. the canopy struck the roof.
He stated that the canopy was leaning forward, and although he
could not state where the legs were bent, he believed that
"something had to be bent" since the canopy was tilting forward
(Tr. 38).
Mr. Hixson confirmed that he assumed that the canopy
involved in the accident at another mine operation (Exhibit P-E)
was a substantial canopy. He agreed that a new canopy which is
perfectly intact could fall on someone. He did not know whether
the two shuttle cars were similar, but believed that the mining
conditions were likely similar (Tr. 41). He confirmed that one
"canopy save" occurred at the Shannopin Mine when a miner
operator was covered up and had to be dug out, but he was not
aware of any rod;: falls on shuttle car canopies F and would only
know about such an incident if it
a reportable fall or someone
is entrapped (Tr. 42).
Mr. Hixson stated that he detected no problems with the
welds on the legs of the canopy where they attached to the
shuttle car. The welds were covered with paint and he had no
idea what was under the paint. He did not know whether the
damaged canopy would sustain any kind of load and stated that
"possibly one more hit and it could come down" (Tr. 43).
However? he believed that the canopy would have deflected smaller
pieces of rock that might cause injuries (Tr. 43-44). He
confirmed that after observing the broken welds and the canopy
leaning, he concluded that it would not do the job that it was
engineered to do. He also confirmed that he did not grab and try
to shake the two legs with the broken welds, and that the welds
were completely broken and not simply cracked.
Based on the
condition of the canopy, he concluded that "it had to be striking
something on the mine roof or some other piece of equipment
fairly hard". He was not certain whether the welds were part of

1183

the canopy installation or the support, but confirmed that the
welds hold the standards in an upright position. The purpose of
the canopy is to protect the operator from rock falls or falling
materials (Tr. 45-50). Mr. Hixson confirmed that he did not
determine how long the damaged canopy condition had existed and
that he did not seek out the person who operated the car on the
prior shift (Tr. 52).
Respondent's Testimony and Evidence
Joseph K. Caldwell, respondent's safety director, testified
that he was very familiar with the roof conditions at the mine.
He confirmed that roof falls have occurred "in a certain way",
and that 90 percent of the falls have occurred when everyone on
the section has moved 10 to 15 rooms inby. Several weeks might
pass before the roof deteriorates, sags, and then eventually
falls out. He described the overall roof conditions as "good,
decent" (Tr. 53-54).
Mr. Caldwell agreed with the inspector's description of the
overall construction of the canopy. It was his understanding
that the base of the canopy legs were substantially welded, and
that approximately 18 inches up the legs the welds were broken on
the braces. He stated that the canopy legs fit inside the
standards and that the broken welds were on the standards
(Tr. 54-56) .
On cross-examination, Mr. Caldwell confirmed that he did not
accompany the inspector during his inspection on May 24, 1991,
was not present when he examined the shuttle car and the canopy,
and that he did not examine the car or the canopy that day
(Tro 59-60)
A new canopy was immediately installed to abate the
citation but Mr. Caldwell did not inspect the damaged canopy
after
was replaced" He agreed that a canopy with two support
legs or standards in a bent condition could present a problem.
However, based on his knowledge of a canopy that is substantially
constructed, and the fact that everything else was basically
intact, he
not bel
it was unsafe (Tr. 61-62). He stated
that there are bolts that fasten the legs to the canopy and that
"there is a certain degree of play in the bolt where it 1 s
attached to the standard" and that it "could appear to be bent
looking" (Tr. 64).
o

Inspector Hixson was recalled, and he confirmed that he did
not measure to determine how far forward the two standards with
the broken welds were bent but that "it was obvious to the eye
whenever I first glanced at it that it was damaged . . . and
that's when I discovered that the welds were broken" (Tr. ·64-65).
He agreed that a canopy does have "some inherent play" and that

1184

there is a slight tilt.
In such a situation he would not cite
it.
However, if he "feels that it 1 s been damaged by being struck
or that there's a problem, then I'm going to look a lot closer"
(Tr.

64).

Mr. Hixson was of the opinion that the intent of
section 75.1725 is to insure that the equipment is safe for
anyone who operates it, but it does not require that equipment be
maintained exactly as it was when it was placed in operation
underground.
He was not aware of any canopy testing conducted
underground, or any MSHA studies concerning damaged canopies, or
canopies with broken welds.
His understanding of section
75.1710, is that it requires an engineer to subject a canopy
ready for use to certain load pressures stated in the regulation
(Tr.

69).

MSHA's Arguments
With regard to the appliGation of the canopy regulations
found at 30 C.F.R. § 75.1710 and 75.1710-1, MSHA takes the
position that these regulations address only the conditions under
which canopies are required, and the initial configuration
required so that a canopy may be certified as "substantially
constructed". MSHA states that the parties are in agreement that
canopies are required in the respondent's mine and that the
canopy installed on the cited shuttle car was initially certified
as substantially constructed.
MSHA asserts that no cases have construed section 75.1710
and 75.1710-1 to impose a requirement that operators maintain
cabs or canopies and that
general, the case law discussing
violations of §7501710 or §75.1710~1 have addressed whether
canopies are required either ii--:. c_
,
Mining Co.
4 FMSHRC 1207 (July 1982); or on a particular piece
of equipment, Peabody Coal Co., ~1 FMSHRC 4 (January 1989);
Sewell Coal Co., 5 FMSHRC 2026 (December 1983); or whether
operating a piece of equipment without a canopy is a significant
and substantial violationr
..
10 FMSHRC 603 (May 19881
MSHA confirms that
1990 Program Policy Manual 1 Volume v,
Part 75, pg. 158 instructs that section 75.1725(a) 11 in no way
affects enforcement of other mandatory safety standards and
should be used only where such condition is not covered by any
other regulation 11 •
MSHA concludes that since the cited condition
is not covered by any other regulation the inspector appropriately cited a violation of section 75.1725(a), and that the
issue presented in this case is whether or not the shuttle car
canopy, "which had sustained extensive damage'', was in a safe
operating condition.

1185

MSHA acknowledges that in order to establish a violation of
section 75.1725(a), it must establish the equipment's use or
availability for use.
(Explosive Technologies International,
Inc., 14 FMSHRC 59, 64-65 (January 1992). However, MSHA asserts
that a violation can occur even if the equipment is not in actual
use at the time the citation is issued, Explosive Technologies
International, Inc., 14 FMSHRC at 65, citing Mountain Parkway
Stone, Inc., 12 FMSHRC 960, 962-963 (May 1990).
In the instant
case, MSHA relies on the inspector's testimony that the shuttle
car was located on a working section and was available for
operation as it was not locked out or tagged out and that the car
operator trammed it down the intake escapeway so that the
inspector could inspect it.
Citing Peabody Coal Company, 1 FMSHRC 1494, 1495 (October
1979), MSHA asserts that section 75.1725(a) required the
respondent to maintain the shuttle car canopy in safe operating
condition and to remove the unsafe canopy or car from service.
MSHA concludes that derogation of.either duty constitutes a
violation of the cited section.·· citing consolidation Coal
Company, 11 FMSHRC 2279, 2282 (November 1989), quoting Webster's
Third New International Dictionary, 1986 Edition, MSHA points
omit that "safe" has been defined as "free from damage, danger or
injury, secure . . . u MSHA asserts that section 75.1725(a) is a
recognized broad safety standard aimed at preventing hazardous
conditions as well as correcting them, that it is not necessary
for the hazard to fully materialize before remedial action is
required, and that if unsafe equipment is operated, a violation
exists whether or not the operator knew of the unsafe condition.
Secretary v. Alabama By-Products, 4 FMSHRC 2128, 2131
(December 1982) ~ Peabody Coal Company, supra at 1 FMSHRC 1495~
Peabody Coal Company, 2 FMSHRC 1683 1684 (June 1980),
on the Commission s decision in the Alabama Bysupra, at 4 FMSHRC 2129, MSHA points out that the
standard for determining whether machinery is in u1 safe operating
condition 11
nwhether a reasonably prudent person familiar with
the factual circumstances surrounding the alleged hazardous
-:any facts peculiar to the mining industry,
would recognize a hazard warranting corrective action within the
purview of the applicable regulationH, MSHA also cites secretary
v. Ideal Cement Co., 13 FMSHRC 1346, 1348 (September 1991), a
case
which the 11 reasonably prudent personH test was applied to
an alleged violation of 30 C.F.R. § 56.9002, requiring that
equipment defects affecting safety be corrected before equipment
used.
--=-=-=-=~::...=.:~==<

MSHA maintains that the respondent violated section
75.1725(a) by its failure to maintain the canopy in a safe
operating condition. MSHA concludes that the inspector was
correct in his conclusion that a violation existed based upon the
results of his investigation.
In support of this conclusion,

1186

MSHA relies on the testimony of the inspector that the canopy was
leaning forward, its legs were bent, and that the welds which
held the inner legs upright were completely broken. MSHA points
out that the respondent presented no testimony disputing the
inspector's factual testimony regarding the condition of the
canopy at the time of the issuance of the citation, but instead,
presented only the testimony of Safety Director Joseph Caldwell,
who did not view the canopy either before or after the issuance
of the citation.
Although Mr. Caldwell was of the opinion that the broken
welds were not on the canopy legs but on the standards attached
to the shuttle car, which the canopy legs fit inside of, MSHA
asserts that if these 11 standards 11 (which Mr. Caldwell suggests
were not a part of the canopy but were attached to the shuttle
car) were bent, simply putting a new canopy on would not solve
the problem because the canopy would still be leaning forward.
Alternatively, if the canopy legs were bent, as the inspector
testified, and the welds held-.the l.egs to the frame of the
shuttle car, MSHA concludes that placing a new canopy with
straight legs on the shuttle car and rewelding the legs, would
alleviate the problem. MSHA asserts that there is no dispute
that the violation was abated by replacing the old canopy with a
new one and no attempt was made to correct the problem by simply
repairing the broken welds. MSHA points out that Mr. Caldwell
admitted that the damage to the canopy involved the "integrity of
the structure" which the respondent's maintenance employees will
not attempt to repair (Tr. 63).
MSHA believes that it is clear that given the factual
circumstances surrounding the damaged canopy, including the
of roof falls peculiar to the mine 7 a reasonably prudent
should have recognized the danger of allowing a shuttle
car with a
s
leaning canopy to continue to operateo In
support of this conclusion 1 MSHA asserts that the inspector
recognized two possible hazards in allowing the shuttle car to
continue in use.
One hazard was that the canopy would not be
able to protect the shuttle car operator
the event of a roof
fall.
The inspector
fied that the canopy
designed to
hold a vertical load, and when
is leaning, and the legs are
bent: he believed that
was questionable that the canopy would
be able to withstand the pressures it
designed and certif
to take.
MSHA further points out that the inspector was aware that the
mine had a significant history of roof falls, particularly in the
West sections of the mine, where the shuttle car was operating.
MSHA concludes that a reasonably prudent person, familiar with
the significant history of roof falls in the Mine, should have
recognized that the visibly leaning canopy with broken welds
where the canopy legs should have been attached to the frame of
the shuttle car was unsafe and presented a hazard that warranted

1187

corrective action. MSHA further concludes that the condition of
the canopy itself presented a hazard, in that the canopy was
likely to collapse in on the operator of the shuttle car. MSHA
believes that this was not a situation where the canopy shuttle
car had scratches or minor dents from striking the roof or
deflecting falling objects, but rather, the shuttle car had
become damaged by striking something particularly hard and that
hitting the mine roof would cause further damage to the shuttle
car, which could be enough to cause it to collapse.
Finally, MSHA asserts that it is clear that a reasonably
prudent person, familiar with the fact that a canopy on a
shuttle car is obviously leaning; that the ability of the canopy
to withstand the amount of pressure which it is certified to
withstand in the event of a roof fall is seriously compromised by
its leaning positjon; that although canopies are designed to
withstand some damage from bumping the mine roof, the extent or
degree of this canopy 1 s decline, as well as the bent legs on this
canopy, indicated that the canopy·had stricken something hard,
most likely area(s) of the roof; that operators of face equipment
such as shuttle cars are more frequently exposed to unstable roof
and roof falls; and that there was a significant history of roof
falls in the West section of Shannopin Mine; would recognize a
hazard warranting immediate corrective action.
Respondent@s Arguments
The respondent asserts that MSHA has failed to prove that
the condition of the cited canopy in question caused the shuttle
car to be in an unsafe operating condition, and that it has no
proof to support the alleged violative conditions described in
the citationo
In support of its argument, the respondent
maintains that MSHA 1 s case rests primarily, if not solely, on the
inspector's v
examination that the canopy was leaning and
two welds were broken. The respondent relies on the frequent
admissions by the inspector (Tr. 26, 32, 37), that he did not
know whether the canopy would withstand the pressures it was
required to
thstandr and it concludes that these admissions
alone support c conclusion that MSHA has failed to prove the
shuttle car was in an unsafe operating condition.
The respondent states that a close look at the evidence in
case shows that the inspectoris allegations in the citation
have no reasonable foundation.
In support of its conclusion, the
respondent points out that the canopy legs fit into additional
legs or standards which were welded onto the shuttle car, and
that these additional legs or standards were intact and there
were no detects where the legs of the canopy were attached to the
canopy itself (Tr. 17, 43, 55, Gov't Exh. B).
Conceding that
there were two broken welds on the inner two legs of the canopy,
the respondent points out that the welds on the outer legs were
intact and that the inspector was not aware of the purpose of the

1188

broken welds and admitted that the tilt on the canopy posed no
problem (Tr. 15, 17, 65). Respondent further asserts that the
canopy could not have been tilted to any great degree because the
two outside welds were intact indicating that there was very
little tilt to the canopy.
The respondent points out that Mr. Caldwell and the
inspector confirmed that there is some "play" in the canopy where
the leg fits into the standard (Tr. 64-65). Respondent asserts
that the canopy legs, placed in the standards, provided the
required support for the legs. Respondent suggests that the
welds were apparently only an attempt to eliminate some of the
play or looseness where the legs fit into the standards, even
though the play itself did not present a hazard (Tr. 64, 65).
Respondent also suggests that the welds may have been applied to
prohibit adjustment of the canopy, given the fact that it had
been scraping the roof at some time in the past. Respondent
asserts that the evidence indi,cates that the welds were not even
necessary to maintain the canopy, and it submits that a complete
absence of all four welds where the canopy legs entered the
standards would have no significant impact on the integrity of
the canopy. The respondent further concludes that the evidence
fails to show that the inspector 1 s basis for issuing the
citation, the tilt in the canopy and the two broke welds;
rendered the equipment unsafe.
The respondent argues further that the fact that the
inspector did not issue a citation alleging a violation of
30 C.F.R. § 75.1710, which requires the shuttle car to be
provided with a substantially constructed canopy, indicates that
~he shuttle car was provided with a substantially constructed
canopy
~=r, support of this argument 9 the respondent cites MSHA 9 s
policy manual under section 75o1725, which states that u'This
section in no way affects enforcement of other mandatory safety
standards and should only be used where such condition is not
covered by any other regulationu. The respondent concludes that
since the essence of the alleged violation is that the canopy was
not substantial
constructed, the inspector, according to the
MSHA manual, should have cited section 75.1710 rather than the
~ucatch a11uu section 75.1725(a).
The respondent further concludes
that the inspectoris explanation that section 75.1725(a) is the
appropriate standard is contradictory and unsupportive of his
position, and since he stated that section 75.1710 did not apply,
this indicates that the canopy was substantially constructed.
Finally, since the inspector indicated that section 75.1710 does
not address maintenance, and that maintenance of the canopy was
adequate at the time (Tr. 31), respondent concludes that the
inspector was concerned that the canopy may be unsafe at a future
time, hardly a basis for issuing a citation for the present
condition.
o

1189

Findings and Conclusions
Fact of Violation.

Citation No. 3702139.

The respondent is charged with a violation of mandatory
safety standard 30 ·c.F.R. § 75.1725(a), which states as follows:
Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from
service immediately.

In construing an identical mandatory safety standard
applicable to surface coal mines (30 C.F.R. § 77.404(a)), the
Commission in Peabody Coal Company, 1 FMSHRC 1494, 1495 (October
1979), held that the regulation imposes two duties upon an
operator~
(1) to maintain machinery and equipment in safe
operating condition, and (2) to remove unsafe equipment from
service. The Commission concluded that derogation of either duty
constitutes a violation.

In Alabama-By-Products Corporation, 4 FMSHRC 2128, 2129
(December 1982), the Commission upheld a violation of
section 75.1725(a), and stated as follows:

[I]n deciding whether machinery or equipment is in safe
or unsafe operating condition, we conclude that the
alleged violative condition is appropriately measured
against the standard of whether a reasonably prudent
nerson famil
with the factual circumstances
sur=ounding the allegedly hazardous condition,
uding any facts peculiar to the mining industry
would recognize a hazard warranting corrective action
the purview of the applicable regulation.
Section 75,1710 authorizes the Secretary to require
constructed canopies on shuttle cars in order to
~he car operator from roof falls and from rib and face
rolls"
Section 75ol710~l requires shuttle cars to be equipped
with ca
constructed 11 canopies located and installed
such a manner to protect the car operator from roof, facer and
falls or rolls. Pursuant to section 75.1710-l(d), a canopy
is considered to be "substantially constructed'' if a registered
engineer certi
that the canopy has the minimum structural
capacity Vito support elastically: (1) A dead weight load of
18, 000 pounds, or ( 2) 15 p. s. i. distributed uniformly over the
plan view are of the structure, whichever is lesser".

MSHA's policy manual interpretation of section 75.1725,
cites examples of equipment defects which "could indicate that
such machinery and equipment is not maintained ln saf~ operating

1190

condition", and it states that a violation of section 75.1725
"would exist if such defects render the equipment or machinery
unsafe to operate" (Emphasis added) .
The parties are in agreement that canopies are required for
shuttle cars operating in the respondent 1 s mine and that the
canopy in question was initially certified as substantially
constructed when it was installed on the shuttle car in question.
MSHA's position is that sections 75.1710 and 75.1710-1 only
address the mining conditions under which canopies may be
required, and the initial configuration required of a canopy
before it may be certified as "substantially constructed". MSHA
believes that these regulations impose no obligation or
requirement on a mine operator to maintain the canopy in a
"substantially constructed" condition after it is initially
certified and installed on a shuttle car.
I take note of the fact that MSHA 1 s canopy safety standards
do not include any requirements that canopies be maintained in a
"substantially constructed" condition so as to continually meet
the minimum structural criteria found in section 75.1710(d). In
short, once a canopy is certified as capable of withstanding
certain structural pressures to which it may be exposed in the
event of a roof fal.l, there is no specific canopy standard to
insure that a canopy which has been subjected to "wear and tear"
in the actual mining environment has not been rendered less than
"substantially constructed" after the passage of time.
In the
absence of such a canopy standard, an inspector necessarily must
rely on a general vicatch all" subjective standard such as
section 75.1725(a) u to determine whether or not an otherwise
seemingly ' 1 substant
constructed 1u canopy is nonetheless in
~uunsafe condition"
its immediate removal from serviceo
The inspector mus~ also
on a
instruction which
contains no guidance as to how one may make and support a
determination that a particular piece of equipment is unsafe
solely because of the presence of a damaged part.
The record in
case
that the inspector was
rather unsure as to which regulatory standard to cite
(Tr. 67-68)
On direct examination, he testi
that he had
violations of both section 75.1710 and section 75.1725(a), but
opted to cite section 75ol725(a), because he wanted to take the
shuttle car out of
(Tr. 18). Although his inspection
notes (Exhibit G-B) , reflect that the canopy 11 was not being
maintained safe 11 , he testified that he considered the maintenance
of the canopy as "adequate at the time 0 , and that section 75.1710
did not apply (Tr. 30-31). I find the inspector's belief that an
adequately maintained canopy
at the same time unsafe to be
rather contradictory.
o

The respondent's arguments that the inspector should have
cited section 75.1710, rather than section 75.1725(a), and that

1191

his failure to cite section 75.1710, or to follow MSHA's manual
instructions supports its contention that the canopy was
substantially constructed and that the citation should be vacated
on these grounds ARE REJECTED. In upholding a violation of
section 75.1725(a), the Commission in Alabama By-Products
Corporation, 4 FMSHRC 2128, 2132 (December 1982), held that
MSHA's policy manual instructions are not officially promulgated
rules binding upon the Commission and that the failure of the
inspector to follow such instructions did not invalidate the
citation.
The respondent 0 s further suggestion that an inspector's
concern that a canopy may be unsafe at some future time may not
support a citation for its present condition is not persuasive
and it is likewise REJECTED. In upholding a Commission Judge's
decision affirming a violation of section 75.1725(a), the U.S.
Tenth Circuit in Mid-Continent Coal and Colke Company v. FMSHRC
and Secretary of Labor, September 24, 1981, 2 BNA MSHC 1450,
observed that "It is clear that Congress intended the Mine Act to
both remedy existing dangerous conditions and prevent dangerous
situations from developing". See also: Alabama By-Products
Corporation, 4 FMSHRC 2128, 2131 holding that "· . • • upon
observing the defective equipment in issue, it was not necessary
for the inspector to wait until the feared hazard fully
materialized before directing remedial action".
The respondent in this case is charged with an alleged
violation of section 75.1725(a), and the fact that the inspector
opted to cite that regulatory standard, rather than another one
irrelevanto The selection of an appropriate standard to cite
the
o~ the inspector
and he assumes the
and uoss
tha~ he may not prevail when called upon to
an
at tr
In the case at hand, the
ssue
whether or- not the condition of the canopy, as observed
by the inspector 1 rendered it unsafe for immediate and continued
use within the meaning of section 75ol725(a), and whether there
of
probative evidence to support the
is bel
f that a
ted canopy
th two broken welds was
unsafe o The '.'.)urden of proof lies with MSHA and "the
fact of unsafeness, rather than the reason for the unsafeness, is
relevant 11 ,
v. Kenny Richardson, 3 FMSHRC 8,
l~ (January 1981) 1
by the Sixth Circuit at 689 F.2d 632
(1982) 1
denied 1 Noo 82-1433, May 16, 1983" A lack of
reliable and substantial evidence of an actual equipment defect
affecting safety justifies the dismissal of a citation, B.K.S.
Mining Co., Inc., 2 FMSHRC 998 (April 1980), final Commission
order June 9, 1980. Both of these cases concerned alleged
violations of 30 C.F.R. § 77.404(a), a surface mining standard
containing language identical to section 75.1725(a).
o

In this case, the inspector primarily relied on two factors
in concluding that the canopy was unsafe, namely, the tilt in the

1192

canopy and the two broken welds. MSHA maintains that the ability
of the canopy to withstand the amount of pressure which it is
certified to withstand in the event of a roof fall is seriously
compromised by its leaning position. However, on the evidence
presented in this case, I cannot conclude that the tilt or lean
observed by the inspector proves that the canopy was in an unsafe
condition requiring its immediate removal from service. The
inspector did not speak with anyone who may have operated the
shuttle car while coal was being produced, nor did he ascertain
when the car was last inspected or how long the condition in
question may have existed.
Further, although the inspector
testified that he had taken a college class in "strengths and
materials" and a physics class, that he "knew the equipment", and
that a canopy is designed to hold a vertical load rather than a
horizontal load (Tr. 37), there is no evidence that he had any
particular engineering expertise.
The inspector candidly ad,mitted that he had no idea whether
the canopy would withS,tand the weight that it was certified to
hold in the event of a roof fall and that he was not qualified to
determine whether or not the canopy could "withstand the
1800 pounds or not" (Tr. 26, 32-33).
(I take note that
section 75.1710-l(d) requires a certified canopy weight load
capacity of 18,000 pounds).
Further, the inspector acknowledged
that he took no measurements, and did not know the degree of lean
of the canopy (Tr. 64). He also agreed that a canopy does have
"some inherent play" and slight tilt, and that in such a
situation, he would not cite it unless he "feels that it's been
damaged by being struck or that there's a problem" (Tr. 65). He
confirmed that h~ did not grab the support posts where the welds
were located and attempt to shake them, and he indicated that
even
he had done so 1 the canopy
do have some u1 play 11 in
them Trc 45)o He could not say whether or not the support posts
would have moved freely if he attempted to shake them with his
hands, and he found no need to make this 11 hand test" (Tr. 46).
Contrary to MSHA 1 s assertions that the canopy legs were
bentv and that two of the welds
held the inner legs upright
were completely broken the citation as written, fails to
describe any bent legs or standards, nor does it state that the
broken welds were located where the legs or standards attached
directly to the canopy or the shuttle car.
The citation states
that the 2 broken welds were located where the standards were
previously attached to the shuttle car. Although the inspector's
notes include a notation that "the standards were bent forward",
the diagram of the canopy made by the inspector does not depict
any bent legs, and when he was asked to locate the bent legs on
the diagram, he could not do so (Tr. 38). When asked whether or
not the legs were bent, the inspector replied that "the legs were
bent"; "the legs were leaning, the canopy itself was leaning
forward"; "something had to be bent, for the canopy to be tilting
forward" (Tr. 38). The inspector initially believed that the

1193

canopy legs and standards were one and the same (Tr. 14), whereas
the more credible and unrebutted testimony of Mr. Caldwell
reflects that the canopy legs actually fit into the standards
which were welded onto the shuttle car frame (Tr. 55-57).
Although it is true that Mr. Caldwell was not with the
inspector during his inspection because he was not at the mine,
and he did not view the canopy when it was cited or shortly
thereafter when it was taken out of service, Mr. Caldwell
nonetheless based his testimony on his knowledge of the shuttle
cars and canopies, his observation of similar canopies before and
after the citation, and the inspector's drawing of the cited
canopy in question (Tr. 56-57). He also testified that he had
previously seen the same canopy many times, and as late as "a
couple of days" prior to the inspection in question (Tr. 60).
It
was Mr. Caldwell's understanding that the broken welds were on a
piece of bracing material approximately 18 inches from the base
of the standard, but that the,J::>ase qf the canopy legs were
substantially welded (Tr. 54-55).
I taken note of the fact that
Mr. Caldwell has been employed by the respondent for 17 years,
and his mining experience includes work as a safety inspector,
section foreman, and the operation of shuttle cars, roof bolters,
and continuous mining machines, and I find him to be a credible
witness.
The inspector testified that the broken welds he observed
were not at the point where the legs are welded directly to the
canopy top and 3erve to support it, or at the base of the
standards (Tr. 16). This testimony lends some credence to
Mr. Caldwell 0 s belief that the two broken welds may have been at
one of the brace locations; rather than on the legs themselves.
The inspector also testified that he found nothing wrong with any
of the welds at the roof of the canopy where the legs are
attached to support the canopy, or at the base of the supporting
standards which were securely welded to the frame of the shuttle
car and which served to support or house the canopy legs
(Tro 17, 43). He believed that the canopy would deflect smaller
pieces or rock that might cause injuries (Tr. 17, 43).
MSHA 1 s assertion that the cited canopy 11 had substantial
extensive damageu• is not supported by the evidence. The fact
that the canopy top showed evidence that it was probably scraping
the mine roof, standing alone, does not support a finding of
uuextensive damage 1u, and the inspector acknowledged that it was
not unusual to see evidence of roof scrapes on a canopy top
(Tr. 48-49). At most, the evidence reflects the presence of two
broken weld spots at a location up from the base of the two front
canopy legs which were located inside of the four standards which
were securely welded to the shuttle car frame.
Under these
circumstances, and after careful review and consideration of all
of the testimony and evidence presented in this case, I cannot
conclude that MSHA has proved that the cited canopy was unsafe,

1194

or that the condition of the canopy, as observed by the
inspector, rendered it unsafe and requiring its immediate removal
from service.
In short, I cannot conclude that MSHA's evidence
that the canopy was unsafe, a conclusion which in the final
analysis is based on the inspector's observation of a forward
tilt in a canopy which has inherent "play"; and two broken weld
spots up the side of two of the canopy legs which are otherwise
substantially welded to the base of the canopy, and which are
inside support standards which are securely welded to the frame
of the shuttle car, would lead a reasonably prudent person
familiar with those circumstances to conclude that the canopy was
unsafe and should have been immediately removed from service.
In
the absence of such proof, I conclude and find that a violation
of section 75.1725(a), has not been established and that the
contested citation should be vacated.
As noted earlier, the parties agreed to settle the three
remaining contested citations in this proceeding, and the
petitioner filed a motion pursuant to Commission Rule 30,
29 C.F.R. § 2700.30, seeking approval of the proposed settlement.
The citations, initial assessments, and the proposed settlement
amounts are as follows:
30 C.F.R.
Section
Assessment
Settlement
3702086
3702038
3702134

5/13/91
5/16/91
5/16/91

77.1102
77.1102
75.220(a) (1)

$227
$227
$350

$168
$50
$227

In support of the proposed settlement dispositions of the
three citations in question, the petitioner has submitted
ining to the s
statutory
l
penalty
section ~~O(
of the Act. The petitioner also
submitted a ful discuss
and
sclosure regarding the facts
and circumstances surrounding the issuance of the citations, and
a reasonable justification for the reduction of the original
proposed c
penalty assessments. After careful review and
cons
of the arguments
support of the motion to
approve the proposed settlement~
conclude and
that the
proposed settlement is reasonable and in the publ
interest.
Accordingly, pursuant to 29 C.F.R. § 2700.30, the motion IS
GRANTED,,and the settlement IS APPROVED.
ORDER
IT IS ORDERED THAT:
l}
The contested section 104(a) "S&S" Citation No. 3702139,
May 24, 1991, citing an alleged violation of mandatory
safety standard 30 C.F.R. § 75.1725(a), IS VACATED, and the
petitioner's proposed civil penalty assessment is DENIED AND
DISMISSED.

1

5

2)
The respondent shall pay civil penalty assessments in
the settlement amounts shown above in satisfaction of the
violations in question.
Payment is to be made to MSHA
within thirty (30) days of this decision and order, and upon
receipt of payment, this proceeding is dismissed.

_#/

A~·

~- Koutras

Administrative Law Judge

Distribution:
Theresa c. Timlin, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Building, 3535 Market st.,
Philadelphia, PA 19104
(Certified· Mail)
Joseph Ao Yuhas, Esq., Shannopin Mining Company, RD #1, Box 40,
Barnesboro, PA 15714
(Certified Mail)

/ml

1196

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266 I FTS 564-5266

JUL 2 4 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.
.
.
.
.
.
"

v.

0

MID-CONTINENT RESOURCESv
INCORPORATED,
Respondent

Docket No. WEST 91-580
A.C. No. 05-00301-03782
Dutch Creek Mine

DECISION
Appearances:

Margaret A. Miller, Esq., 'Iambra Leonard, Esq. ,
Office of the Solicitor, U.S. Department of Labor,
Denverv Colorado,
for Petitioner~
Edward Mulhall, Jr., DELANEY & BALCOMB, P.C.,
Glenwood Springs, Colorado,
for Respondent.

Bef oreg

Judge Morris

This is c.
:'.l penalty proceeding init ted by Petitioner
a
inst. Respondent pursuant to
e Federal Mine Safety and Health
Act of 1977v 30 u.s.c. § 801 et~ The civil penalty sought
here is for the viola ti on of a mandatory regulation promulgated
pursuant to
Acta

:related cases was held in GlenA hearing _:r:. this case
Sp:cingsp
u on February 26v 1992.
'!he parties
zeached an ami
e settlement on the record and subse:;Juently
iled a written Joint Motion to Approve Settlemento
Respondent

rther filed a suggestion of bankruptcyo

The Citationu the original assessment, and the proposed disposition are as follows:
Citation Noo

Proposed Penalty

Amended
Proposed Penalty

3411282

$950.00

$570.00

1197

In support of their motion, the parties sub:nitted information relating to the statutory criteria for assessing civil penalties as contained in 30 u.s.c. § 820(i).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest.
It should be approved.

Accordingly, I enter the following:
ORDER

1. Citation No. 3411282 and the amended proposed penalty
therefor are AFFIRMED.
2.
Respondent filed a case under Chapter 11 of the Bankruptcy Code and is operating its bankruptcy estate as a debtorin-possession. Accordingly, upon approval of the United States
Bankruptcy Court in Case No. 91-11658 PAC, it is ORDERED that
a civil penalty will be assessed against the Respondent in the
amount of $570.00 and Petitioner is authorized to assert such
assessment as a claim in Respondent's Bankruptcy Case.

Law Judge

stributiong

Margaret .Ao Miller v Esq o v Off ice of the Solicitor 0 U oS o DepartLaborv 1585 Federal Office Buildingv 1961 Stout Street,
Denver 0 CO 80294 (Certified Mail)

ment

EdwardMulhallv Jr. 11 Esq., DELANEY & BALCOMB, P.C., P.O. Drawer
790, Glenwood Springs, CO 81602 (Certified Mail)
ek

1198

FEDERAL

MINE

SAFETY
OFFICE

AND
OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

REVIEW

HEALTH
LAW

lOth

FLOOR

LEESBURG

PIKE

VIRGINIA

CHURCH,

COMMISSION

JUDGES

22041

JUL 3 0 ]992

SECRETARY

OF

MINE

LABOR,

SAFETY

CIVIL

AND

PENALTY

PROCEEDING

HEALTH

(MSHA),

ADMINISTRATION

Docket

Petitioner

A.

No.
C.

YORK

No.

92-40-M

30-01688-05506

v.

Mine

Hyatt
Z

C

A

MINES,

INCORPORATED,
Respondent
DECISION

William

Appearances:

U.S.

G.

for
Sanders
for
Before:

is

case

before

filed
Penalty
a
conference
telephone
for
both
parties,
L.

Operator

subsequent

York,

Esq.,

Gouverneur,

and

the

to

July

Respondent's

30,

Hyatt
loader.

functioning

the

Solicitor,

New

York

New

Secretary

call

between

Proposal

a

on

the

and

Ronald

in

lieu

for

(Petitioner).
the

P.

undersigned
At

York,

of

Subsequent

to

and

counsel

was

scheduled

for

the

hearing,

William

David

waived

thereof

Assessment

Administration

Mashaw

parties

The

testified
their

presented

(MSHA)

C.

Roberts,
for

the

right

to

oral

argument

in

inspecting

submit

hearing.
Findinqs

front-end

of

New

a

Beachard

L.

briefs

On

based

me

by

(Respondent).

written

Office

in
this
matter
hearing
in
New
1992,
York.
Watertown,
Mine
a
and
Jr.,
Health
Safety
testified
for
and
Petitioner,

30,
Kobel,

Inspector,
Douglas

Heller,

D.

Esq.,
Labor,

Respondent.

Civil

June

of

Weisberger

Judge
This

Staton,

Department
Petitioner;

1991,

of

Fact

William

L.

observed
mine,
the
Although

Discussion

and

Kobel,

Jr.,

Ronald

P.

loader

was

Mashaw

operating

equipped

with

a
a

seat

Mashaw
was
not
belt,
it
while
wearing
operating
Mashaw
in
was
the
of
the
process
loader
operating
a
load
of
by picking
coal
from
up
an
ore
pile,
and
reversing,
then
forward
to
going
load
of
ore
in
dump the
a
truck.
In
this
continuing
the
loader
operation,
would
then
be
backed
up
returned
to
the
ore
where
again
the
pile
would
be
process
The
distances
repeated.
traversed
loader
are
by the

the

loader.

Respondent's
distances

to

Exhibit
No.
be
accurate,

depicted

i.

I

inasmuch

find

the
as

1199

depictions
are
they

of

based

these
upon

actual

and
on

measurements taken by Respondent's witnesses David c. Roberts and
Douglas L. Beachard. I find these measurements more credible
than the estimates testified to by Kobel.
Kobel issued a citation alleging a violation of 30 C.F.R. §
Respondent does not contest the fact of the violation,
but seeks to challenge the finding made by Kobel that the
violation was significant and substantial.
57.14130.

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), The
Commission set forth the elements of a "significant and
substantial" violation as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove~
(1) the underlying violation of a
mandatory safety standard;
(2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation;
(3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and, (4) a reasonable likelihood that
the injury in question will be of a reasonable serious
nature.
(6 FMSHRC, supra, at 3-4,)
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985)v the Commission stated further as follows:

We have explained further that the third element of the
Mathies formula 01 requires that the Secretary establish
a reasonable l
ihood that the hazard contributed to
l
an event
which there is an injury".
U.S. Steel Minina Co.;
FMSHRC 1834, 1836.
(August. 1984).
In essence, Kobel testified that he concluded that the
violation was significant and substantial, inasmuch as there was
reasonable l
ihood of an injury resulting
a loss of work,
He indicated that, specifically, his conclusion in this regard
was based on the fact that the main access road was nearby, and
was used by at least two trucks travelling more than 10 miles an
hour. He also indicated that trucks were going to the far side
of the waste
le, and travelling 4 to 5 miles an hour.
According to Kobel, should the loader go to the garage to obtain
fuel as part of its normal operation it would have to cross a
line of traffic. In essence, he indicated that due to the
presence of this traffic there existed the possibility of a
collision. He indicated that should the loader hit another
object, it is "quite likely" that the operator, not wearing a
seat belt, would be "tossed into one of the structures, or his
knee would strike underneath the steering wheel." (Tr. 18)

1200

He further indicated that the roadway on which the loader
was operating was full of loose zinc ore with the largest
material approximately 8 inches x 10 inches x 3 inches. He
stated that this spillage adds to the chance that a tire will be
blown. He indicated that should this occur when the bucket of
the loader is raised as part of the normal operation, the loader
could sway, or tip overo Should this occur an injury could occur
to the operator as a result by his being tossed around, or
ejected should the door of the loader be open.
I find the testimony of Kobel insufficient to establish a
reasonable likelihood thatu considering all the circumstances
herein, the hazard contributed to would have resulted in an event
in which there is an injury (See U.S. Steel Mining Company, 6
FMSHRC supra). Any other vehicular traffic in the area was not
in the path or line of travel of the loader, which operated in a
most circumscribed area travelling an extremely short distance as
depicted in Respondent 1 s Exhibit No •.. 2. The terrain was level,
not elevated, and there were no berms in the areas. The surface
itself consisted of crushed rock, packed fairly hard. The speed
at which the loader was operating was estimated Kobel to be a
little faster then a fast walk.
On cross-examination Kobel indicated that a lot of the loose
zinc ore spillage was crushed.
Further, although Kobel indicated
that blowouts do happen, he indicated that the tires were
reasonably well maintained. Also, Roberts, who has worked for
Respondent 20 years, indicated that in his experience at
Respondent 9 s operation, there has not been any tire failure from
the use of the roadway in question. Mashawu who also has worked
for Respondent 20 years, indicated that, in driving a front end
loader, he has never 1mown uuof a tire to blow out 00
(Tr 97)
Beachard who has worked for Respondent 22 years, indicated that
he never heard of a front end loader 00 blowing out a tire 00 at
Respondent 0 s premises. (Tr.106). Further, Roberts and Mashaw
operated the loader in question, and described it as being
stable.
In this connection Kobel indicated that the loader did
not appear unstable when the bucket was raised, or when it
dumped. Also it stopped fairly smoothlyo
o

o

For all these reasons, I conclude that the third element set
forth in Mathies supra.~ has not been met. Therefore I conclude
that it has not been established that the violation herein was
significant and substantial.
I find that there was only a small degree of negligence on
the part of the Respondent herein, inasmuch as the credible
testimony establishes that Respondent has a good safety record,
and was diligent in instructing employees to use a seat belt.
I
find that a penalty of $20 is appropriate for the violation
herein.

1201

ORDER

It is ORDERED that Citation No. 3592398 be amended to
reflect the fact that violation cited was not significant and
substantial. It is further ORDERED that Respondent pay a civil
penalty of $20 within 30 days of~ de~i~

fet~
weYsberger
Administrative Law Judge
Distribution:
William G. Staton, Esq., U.S. Department of Labor, Office of the
Solicitoru 201 Varick Street, New York, NY 10014 (Certified
Mail)
Sanders D. Heller, Esq., Z c A Mines Inc., 23 Main Street, P.O.
Box 128, Gouverneur, NY 13642-0128 (Certified Mail)
nb

1202

ADMINISTRATIVE LAW JUDGE ORDERS

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

22041

JUL 9 1992
IN RE: CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

Master Docket No. 91-1

ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO COMPEL TESTIMONY OF ROBERT THAXTON

on October 7, 1991, Contestants Kentucky Carbon, et al.
filed a motion for an order compelling Robert Thaxton to testify
regarding certain matters at~his reconvened deposition.
Thaxton's deposition was taken in Washington, D.C. between
July 24 and July 29, 1991. On October 18, 1991, Contestants
Great Western, et al. filed a motion to compel Thaxton's
testimony. On October 28, 1991, the Secretary of Labor
(Secretary) filed a Memorandum in opposition to Contestantsv
motions. on October 28, 1991, the Office of Inspector General,
U.S. Department of Labor (OIG) filed a motion for leave to file a
special appearance to oppose the motion to compel. on
October 29, 1991, I issued an order granting the OIG leave to
enter a special appearance and I received its memorandum in
opposition to the motion to compel. On November 12, 1991,
Contestants Great Western et al, filed a reply to the OIG's
memorandum"
On November 20 1991, I issued an order staying
action on the motion to compel pending Commission action on
interlocutory review of my order of October 7v 1991. On March
17, 1992 1 the OIG filed a motion to withdraw its motion to oppose
Contestants' motions to compel on the ground that its employee
integrity investigation involving MSHA employees has been closed.
The OIGgs motion is GRANTED.
On June 29, 1992, the Commission issued its decision on
interlocutory review of my discovery orders of
September 13, 1991, September 27, 1991, and October 7, 1991.
Therefore my stay order is VACATED.
During the 4-day deposition of Robert Thaxton, counsel for
the Secretary interposed 54 objections to questions and
instructed Thaxton not to answer. The motion to compel in
section VI, entitled Specific Instructions to Withhold Testimony,
lists 19 (A through S) questions to which Contestants seek to
compel answers. The objections to two of them (L and P) have
been withdrawn by the Secretary and the OIG respectively. Of the
17 remaining questions, 13 are objected to because disclosure is
prohibited by Rule 6(e) of the Federal Rules of Criminal
Procedure, or the information is protected by the investigative

1203

privilege; for some of the 13 and for the remaining four, the
Secretary claims the attorney-client privilege, the deliberative
process privilege, or the attorney work product doctrine.

I.

Rule 6(e)/Investigative Privilege

Rule 6(e) (2) of the Federal Rules of Criminal Procedure
provides in part that "an attorney for the government, or any
person to whom disclosure is made under paragraph (3) (A) (ii)
["such government personnel ... as are deemed necessary by an
attorney for the government to assist .•• in the performance of
such attorney's duty to enforce federal criminal law"] shall not
disclose matters occurring before the grand jury, except as
otherwise provided for in these rules •.•. A knowing violation of
Rule 6 may be punished as a contempt of court." The Secretary
refers to Robert Thaxton as 11 an agent of the grand jury. 11
Thaxton, in an affidavit attached to the Secretary's opposition,
states that he has been an agent of grand juries since
approximately March 1989, and that he has heard grand jury
testimony, prepared analyses and data for presentation to the
grand juries, and has learned the identity of witnesses before
the grand juries. It is clear that he is a Government employee
deemed necessary by a Government attorney to assist the attorney
in enforcing federal criminal law. Therefore he is prohibited
from disclosing "matters occurring before the grand jury. 11 Such
matters include transcripts of witness testimony, memoranda
summarizing witness testimony or outlining future witness
testimony, and information which would reveal what is expected to
occur before the grand jury in the future.
8 Moore's Federal
Practice 6.05[6] (2d ed. 1992) (citations omitted). The scope of
the mandated secrecy is broader than the evidence presented to
<'.:he grand jury and encompasses lithe disclosure of information
which would reveal 'the identities of witnesses or jurors, the
substance of testimony; the strategy or direction of the
investigation, the deliberations or questions of the jurors, and
the like. ' 11 Fund for Constitutional Government v. National
Archives and Records Service: 656 F.2d 856, 869 (D.C. cir. 1981)
citing SEC v. Dresser Industries, Inc., 628 F.2d at 1382).
Howevere the mere fact that material has been presented to the
grand jury does not automatically exempt the material.
"[T]he
touchstone is whether disclosure would \tend to reveal some
secret aspect of the grand jury's investigation .... in Senate of
Puerto Rico v. U.S. Dept. of Justice, 823 F.2d 574, 582 (D.C.
Cir. 1987). See Nervi, F.R.Cr.P. 6(e) and the Disclosure of
Documents Reviewed by a Grand Jury 57 U. Chi. L. Rev. 221 (1990).
There is a qualified common law privilege against disclosure
of information in law-enforcement investigatory files.
The
privilege is qualified in that once it is established, the court
must balance the public interest in nondisclosure against the
need of the litigant for access to the privileged information.
Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336

1204

(D.C. cir. 1984); In re Dept. of Investigation of City of New
York, 856 F.2d 481 (2d Cir. 1988).
As stated above, the motion to compel seeks to compel
answers in 19 specific instances where Thaxton was instructed to
withhold testimony.
This order adopts the Contestants' listing
(A through S) of the contested instructions to withhold.
A.
The question {Tr. 93-94) asked whether the investigation
that resulted in the plea by Peabody Coal Company "is ••. an
ongoing investigation?" Whether a criminal investigation is
"ongoing" is protected by the investigatory privilege. Since the
question relates to a company other than Contestants, they have
not shown a need for the privileged information. The objection
is sustained and the motion to compel is denied.
B and C.
The questions {Tr. 98-103) first asked why the
witness is maintaining the 6000 filters on which no AWC
determinations have been made.. Thaxton replied that he could not
answer because of the ongoing investigative work. He was then
asked in what districts the U.S. Attorneys worked who instructed
him not to answer.
The Secretary objected on the grounds of
investigative privilege and the prohibition of Rule 6(e).
Thaxton and the Secretary seem to be asserting that the reason
for maintaining the 6000 non-cited filters is related to the
criminal investigation.
If so, it is privileged and Contestants
have not shown a need for the information.
In his affidavit
Thaxton stated that the 6000 filters have been maintained for
criminal investigative purposes.
I accept this representation.
If Contestants wish to compel further disclosure, their remedy is
in the District Court where the grand jury sat.
Rule
e) (3) (C) i) and 6(e) (3) (D), F.R.Cr.P. The identification of
stricts
which the U.S. Attorneys are located is
early
ileged and probably protected by Rule 6(e). The objections
are sustained and the motion to compel is denied.
The questions had to do with Thaxton 1 s direct knowledge
of the use of a dust pump by mine operators to create reverse air
flow
filters
the cited dust samples.
(Tr. 174-176). The
witness replied that he was advised by the U.S. Attorney's office
that he could not answer.
The implied representation is that
Thaxton s knowledge of the use of a dust pump by mine operators,
if he has such knowledge, comes from matters occurring before a
grand jury. Accepting his representation, I conclude that he is
precluded by Rule 6(e) from answering the question.
The motion
to compel
denied.
Do

F.
The question was whether the witness shared information
obtained during the course of his AWC investigation for MSHA with
the grand jury or the U.S. Attorney's office.
(Tr. 224-227).
The Secretary objected on the basis of the 6(e) prohibition, and
because of the investigatory privilege. Clearly whether Thaxton

1205

shared 11 information with the grand jury is subject to the 6(e)
prohibition. Thaxton's disclosure to the U.S. Attorney's office
is protected by the investigatory privilege and Contestants have
shown no need for disclosure of such information. The motion to
compel is denied.
11

G. The questions were how the witness knew whether any of
the methods he described were used to create AWCs and whether he
has any information "from witnesses" who have observed these
methods used to create the appearance on the dust samples "that
have been indicted."
(Tr. 255-257). It is the Secretary's
position that the information called for in the first question
"could only have been obtained as an agent of a grand jury." I
accept this representation, and therefore conclude that the
witness is precluded from answering by Rule 6(e). The second
question is not clear but seems to be seeking the same
information. The motion to compel is denied.
I.
The question was whether either of the studies and
reports from West Virginia University or the Pittsburgh Health
Technology Center were "prepared for the criminal investigation
regarding Peabody Coal Company."
(Tr. 340). The Secretary
objected on the basis of the investigatory privilege. The
question clearly seeks information concerning a criminal
investigation. As such, the information is privileged.
Contestants have shown no need for the information which would
outweigh the Government's interest in non-disclosure. The motion
to compel is denied.

J.
The question was whether the reports referred to above
were 10 made exhibits for the grand jury. vu
(Tr. 341) . The
question clearly seeks to learn matters occurring before the
jury. Disclosure
prohibited by Rule 6(e). The motion
~o compel _s den
Ko
The question was whether a coal mine inspector who
provided information concerning equipment which could be found on
mine property which could cause air movement was 11 a coal mine
inspector who had appeared
front of a grand jury. 1u (Tro 501504)
Againf this information c
comes under the
prohibition of Rule 6(e). The motion to compel is denied.

N.
The question was what information MSHA was 11 gathering 11
which prevented
from notifying mine operators "of the validity
(invalidity?) of the
samples. 11
(Tr. 606). The Secretary
asserts the investigative privilege. The privilege applies, but
I conclude that it is outweighed by the Contestants' need for the
information. The Contestants state that "the information
gathered regarding the cited samples is ~he issue in this
litigation." The motion to compel is granted. Thaxton will be
required to answer the question in his rescheduled deposition.

1206

Q.
The· question was which U.S. Attorney or Assistant U.S.
Attorney requested Thaxton to perform certain work.
(Tr. 572).
This information is protected by the investigative privilege and
contestants have not shown any overriding need for it. The
motion to compel is denied.
R.
The questions were whether Thaxton "shared with the
grand jury 11 information developed at the request of the U.S.
Attorney's offices relating to AWCs, and whether he notified
Peabody Coal prior to March 19, 1990, that the filters being
submitted by them were being reviewed for AWC determination.
(Tr. 712, 715). The Secretary objected to both questions on the
ground that disclosure of the information was prohibited by Rule
6(e). The first question is obviously within the prohibition of
6(e). The motion to compel
denied. The second question is
unrelated to the grand jury and not covered by 6(e). The motion
to compel is granted, and Thaxton will be required to answer the
question in the rescheduled ~eposition.

s.
The question was why an Assistant U.S. Attorney needed
to understand the characteristics of AWCs in dust samples.
(Tr. 563-564). The Secretary asserted the investigative
privilege and the deliberative process privilege.
I sustain the
objection related to the former and deny her claim of
deliberative process privilege. The information sought was part
of the criminal investigation. Contestants have not shown a need
for the information which would outweigh the Government's
interest in non-disclosure. The motion to compel is denied.
II. Attorney-Client Privilege/Work Product Doctrine

The attorney-client privilege protects from discovery
confidential communications from client to attorney.
Coastal
v. Department of Energy, 617 F.2d 854 (D.C. Cir.
1980) . The attorney work product doctrine protects from
disclosure information gathered by or for an attorney in
anticipation of litigation. Hickman v.
, 329 U.S. 495
(1947)
Rule 26(b) (3 F.R.C .P.
party seeking disclosure of
factual materials within a protected document or protected
information may obtain them upon a showing of substantial need,
but is not entitled to disclosure of "mental impressions,
conclusions, opinions, or legal theories of an attorney. 11 Rule
26(b) (3).
E.
The question was whether the witness intends to do any
additional testing with any of the 11,000 filters (viewed by
Thaxton for "final determination on AWC phenomenon").
(Tr. 209211).
The Secretary objected on the grounds that the information
sought was protected by the attorney-client privilege and the
attorney work product doctrine.
Since the question has no
reference to a communication from client to attorney, it is
clearly not covered by the attorney-client privilege. Thaxton's

1207

intent to do further testing is not obviously related to
anticipated litigation or to an attorney 1 s work file.
The
objections are overruled, and Thaxton will be required to answer
the question during the rescheduled deposition.
H.
The question was what 11 things 11 (referring apparently to
tests for AWC) have been referred for additional testing.
(Tr. 301-303). The Secretary objected because of the work
product doctrine, and argues that an answer would necessarily
reveal the mental impressions, legal theories, and trial
preparation of the Secretary 1 s attorneys.
I disagree. The
witness may answer the question without in any way referring to
or revealing such impressions and theories. The objection is
overruled, and Thaxton will be required to answer the question
during the rescheduled deposition.
III. Deliberative Process Privilege
The deliberative process privilege protects deliberative
communications between subordinates and supervisors within the
government preceding the adoption and promulgation of an agency
policy. Jordan v. U.S. Dept. of Justice, 591 F.2d 753 (D.C. Cir.
1978). It does not include purely factual material. Schwartz v.
Internal Revenue Service, 511 F.2d 1303 (D.C. Cir. 1975).
M.
The question was what was discussed at meetings with
attorneys from the Solicitor's office and the U.S. Attorney's
office concerning the rationale for not issuing citations in
instances where Thaxton found violations.
(Tr. 535-538). The
Secretary objected on the ground that the information was
protected by the deliberative process privilegeo The question
seeks information of meetings anc'.
concerning agency
- conclude that because s:F ::he breadth of the question;
t necessarily seeks to learn of deliberations concerning agency
policy.
Contestants have not shown need for this information
which would outweigh the Government's interest in non-disclosure.
The motion to compel is deniedo
Ca
The question was in ~vha-t casesvq did Thaxton give
information to Ed Hugler concerning the different classification
of AWCso
(Tr, 565).
The Secretary objected on the basis of
deliberative process privilege. However, the question appears to
ask for factual information andt -;:c the extent it does, the
information is not privileged,
The objection is overruled and
Thaxton will be required to answer the question during the
rescheduled deposition.

1208

ORDER

Accordingly, the motion to compel is granted in part and
denied in part. The parties are directed to reschedule Robert
Thaxton's deposition and he is directed to answer the questions
in accordance with the above opinion.

'

/

;;;./

j

--,

k

/j /;,,'.tu' -S ;f /,'j1>z)(j c- t; '!cf~:_
/
·-'

James ;. Broderick
Administrative Law Judge

Distribution:
Douglas N. White, Esq., Page H. Jackson, Esq., Office of the
Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Laura E. Beverage, Esq., David J. Hardy, Esq., Jackson & Kelly,
P. O. Box 553, Charleston, WV 25322 (Certified Mail)
Lynda L. Homerding, Esq., Williams & Connolly, 839 17th Street,
N.W., Washington, D.C.
20006 (Certified Mail}
All Others Regular Mail

/fas

1209

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUL 17 1992
IN RE:

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

Master Docket No. 91-1

ORDER GRANTING IN PART AND DENYING IN PART
CONTESTANTS' MOTION TO COMPEL PRODUCTION OF
EXCISED PORTIONS OF CERTAIN DOCUMENTS AND
DIRECTING THE SECRETARY TO SUBMIT CERTAIN
DOCUMENTS FOR AN IN CAMERA INSPECTION
on March 2, 1992, Contestants Kentucky Carbon, et al. filed
a motion for an order to compel the Secretary to produce the full
text of certain documents of Jerry L. Spicer, Ronald Schell,
Paul s. Parobeck, Lawrence M. Beeman, Edward Hugler, and
William J. Tattersall which Contestants sought in a request for
production of documents. On March 16, 1992, the Secretary filed
a memorandum in opposition to the motion. on March 26, 1992, I
issued an order staying action on the motion pending Commission
action on interlocutory review of my orders of September 13,
September 27, and October 7, 1991.
On June 29 1992, the Commission issued its decision on
of those orders. Therefore, the stay order of March 26,
1992,
VACATED,
The Discovery Plan, initially adopted on June 28, 1991,
provided that the Secretary would create a document repository
containing copies of all discoverable non-privileged documents in
the Secretary~s control relating to altered dust filter media
and would compile a list of documents deemed by the Secretary
"not to be discoverable or . . . otherwise pri vilegedn (II. A. 1,
3). The documents involved in this motion were not included in
the repository, but were produced in response to Contestants'
request for production of December 4, 1991. The Secretary
responded in mid-January 1992, and the instant motion was filed
March 2, 1992.
In view of these circumstances, I reject the
Secretary's argument that the motion should be denied as untimely
f
ed and not in accordance with the Discovery Plan.

1210

I.

Copies of the documents involved in the motion are attached
as Exhibits A through F.
Exhibit A contains the notes of Jerry
Spicer; B the notes of Ronald Schell; C the notes of Paul
Parobeck; D the notes and calendar entries of Lawrence Beeman; E
the calendar entries of Edward Hugler; F documents (actually a
single document} from the files of Assistant Secretary
Tattersall.
Where the documents contain blank areas or blacked-out or
whited-out words or phrases, with no notation of a claim of
privilege, counsel for the Secretary informed me and counsel for
Contestants that these contain entries unrelated to the present
litigation.
I accept this representation and on this motion will
concern myself only with the excised portions of documents for
which a specific claim of privilege has been asserted.
With respect to the assertions of privilege, in instances
where the Solicitor provides a factual description of the excised
portion of the document, I will rule on the privilege claim, even
though it is not supported by an affidavit or other formal claim
of privilege. Where the assertion is merely conclusory, I will
order the Secretary to submit the document for in camera
inspection.
The documents I am here concerned with are calendar
entries and scattered short notes of six MSHA officials and
employees.
For such documents, it is unnecessary and
inappropriate to require a "Vaughan index." See Commission
decision, In Re Contests of Respirable Dust Sample Alteration
Citations, 14 FMSHRC
(June 29, 1992), slip op. at 20.
II.

Spicer Notes

Spicer's notes contain six pages for only one of which (the
fourth page entitled 3/4/91 Coal Staff Mtg) the Solicitor claims
privilege.
The Secretary states that the excised portion of the
document contains a notation about the timing and progress of
criminal investigation.
She asserts the investigative privilege
and the work product doctrine.
The notation is sufficiently
factual for me to uphold the claim of investigative privilege.
Contestants have not shown an overriding need for the document.
The motion to compel production is denied.
III.

Schell Notes

Two pages of calendar notes made in February and March 1991
are included.
The only excision for which privilege is asserted
is on March 4.
The work product doctrine is asserted and the
excised portion of the document is described as follows:
11
eased information would reveal identity of scientific expert
being consulted by attorneys in this litigation." I am not able
to rule on the claim of privilege without more factual

1211

information. The Secretary will be required to produce the
document for in camera inspection.
IV.

Parobeck Notes

Parobeck's notes consist of one page dated October 1, 1991,
relating to various scientific tests that could be done. The
Secretary claims the deliberative process privilege and the work
product doctrine. They are described as "notes reflecting the
thought processes and deliberations of an Agency representative
in preparation for a report. This report was to be prepared in
anticipation of litigation." The description is largely
conclusory.
I will order the document produced for in camera
inspection.
V.

Beeman Notes

The exhibit contains 19 pages of notes, 17 of which contain
privilege claims (only pages·4 and·6 do not). The calendar
contains 7 pages, September 1990 through April 1991. No
privilege claims are made for calendar entries.
(The entries are
for the most part blacked-out, which indicates, as I noted above,
that they are unrelated to the AWC litigation).
Page 1, entitled 9/17/90 staff meeting (the pages are not
numbered; some are not dated; I am considering them in the order
in which they appear in the exhibit), claims work product and
deliberative process privileges for an entry described as
"references discussion on litigation strategy and issues to be
considered in developing enforcement strategy." A further
notation claims investigative privilege for an entry described as
Discusses I.Go Investigation and use of MSHA personnel on other
ongoing investigations. 11 These notations are sufficiently
factual for me to determine that the claimed privileges apply.
No overriding need for the document has been shown by
Contestants. The motion to compel is denied.
Page 2
headed 9/17 Abnormal White Centers. The Secretary
asserts the attorney-client work product, and investigative
ileges for an entry described as uiu. s. Attorney discussion on
litigation strategy and to release this information would reveal
the thought processes of the U.S. Attorney and how the criminal
case was developed.1e She asserts the attorney-client and work
product privileges for another entry described as "Discussion of
litigation concerns between Sol and MSHA." Each of these
assertions contains sufficient factual material for me to uphold
the privilege claims, the work product and investigative
privileges in the first case; the attorney-client privilege in
the second. Contestants have not shown an overriding need for
the document. The motion to compel is denied.

1212

Page 3 is headed AWC continued. The Secretary asserts the
attorney-client, work product, and deliberative process
privileges. The deleted entry is described as "Discussions on
contacts with U.S. Attorney regarding AWC litigation strategy,
including thoughts and impressions of attorneys concerning the
developments of the criminal case questions with MSHA officials
present." I uphold the deliberative process and work product
privileges. Since Contestants have not shown an overriding need
for the document, the motion to compel is denied.
Page 5 is entitled Peluso AWC. The Secretary claims the
work product privilege for a deletion described as "Discussion of
scientific opinion and possible report of Secretary's potential
expert prepared in anticipation of litigation." I am unable to
rule on the asserted privilege with this description. The
Secretary is directed to produce the page for my
camera
inspection.
Page 7 is entitled 10/2~_(cont). The Secretary asserts that
lines 1 to 29 contain ''[d]iscussion of strategy in ongoing
criminal investigations with the U.S. Attorney and other MSHA
officials. Discussions of legal strategy regarding AWC criminal
enforcement and civil enforcement." She claims the
investigative, deliberative process, and attorney-client
privileges.
I uphold her assertion of the investigative
privilege. The description is not sufficient to support the
other claimed privileges.
Lines 30 to 39 are described as
deliberations on other potential target companies for criminal
investigation, and as to the role of special investigations for
the U.S. Attorney's Office. The Secretary claims the
investigative and work product privileges. I uphold her
assertion of the investigative privilege, but not the work
product claim. Since Contestants have not shown an overriding
need for the document, the motion to compel
denied.
Page 8
headed 10/31 Leighton Farley" The Secretary
claims the work product, attorney-client, and investigative
privileges for an entry described as 11 Discussion of strategy for
negotiating criminal plea agreement between MSHA, U.S. Attorneys,
and Solicitor 1 s Office attorneys.
I uphold her claim of the
investigative priv ege. The description is not sufficient to
support the other claimed privileges. Contestants have not shown
an overriding need for the document. The motion to compel is
denied.
Page 9 is headed Mike Carey. The Secretary asserts the
attorney-client, work product, and deliberative process
privileges for an entry described as "Discussion of opinions and
theories on U.S. Attorney negotiating plea agreement with
Solicitor's Office attorneys and U.S. Attorneys participating and
giving advice and opinion on such matter." I uphold her claim of

1213

the attorney-client and work product privileges.
compel is denied.

The motion to

Page 10 is entitled AWC Jerry/Ed/Ron. The Secretary asserts
the work product, attorney-client, and deliberative process
privileges for a deletion described as "Discussion of Legal
opinions and theories regarding U.S. Attorney negotiating
criminal plea agreements with Solicitor's Office attorneys and
expressing." Although this description appears to be incomplete,
I find it sufficient to uphold the claim of work product
privilege.
Contestants have not shown an overriding need for the
document. The motion to compel is denied.
Page 11 begins with the Secretary's assertion of the
deliberative process, work product, and investigative privileges
for a deletion described as "Discussions of possible legal
strategy against other companies and how to proceed criminally
and/or civilly. 11 I uphold her claim of the work product
privilege.
Since Contestant~have not shown an overriding need
for the document, the motion to compel is denied.
In the middle
of page 11, after the notation Ed Clair AWC, the Secretary
asserts the attorney-client and work product privileges for a
deletion described as "Discussions between Solicitor's Office and
MSHA on U.S. Attorney's negotiations on plea agreements and
development of ongoing criminal investigations." I uphold her
claim of both these privileges. The motion to compel is denied.
At the bottom of page 11, after the notation AWC-Clair, Hugler,
Mascolino, Schell, White, the Secretary asserts the attorneyclient privilege for a deletion described as "Discussions between
Solicitor's Office and MSHA on U.S. Attorney's negotiations on
plea agreements. 11 I uphold her claim. The motion to compel is
denied.
12
headed 11/8 (cont).
The Secretary asserts the
work product and attorney-client privileges for an entry
described as 0 oiscussions between Solicitor's office and MSHA on
U.S. Attorney 1 s negotiations on plea agreements and on further
criminal case/investigation development. 0
She also asserts the
work product and attorney-client privileges for another entry
described as 11 Discussions between Solicitor's Office and MSHA on
U.S. Attorney 1 s negotiations on plea agreements and on further
criminal case development and procedures." I uphold these
privileges for both entr
The motion to compel is denied.
Page 13 contains a notation dated 11/28 for which the
Secretary claims the deliberative process privilege because it
would reveal 11 Suggested and rejected computations regarding AWC
civil penalties. 11 I am unable to rule on the asserted privilege
with this description.
The Secretary is directed to produce the
page for my
camera inspection.
Page 13 also contains a
notation dated 11/29, for which the Secretary claims the work
product privilege because it would reveal a 11 Request and

1214

description of information needed in negotiating criminal plea
agreement. 11 I uphold her claim of the work product privilege.
Since Contestants have not shown an overriding need for the
document, the motion to compel is denied.
Page 14 is headed 12/7 Nelson Cohen - AWC Pittsburgh. The
Secretary asserts the attorney-client, investigative, and work
product privileges for an entry described as "Discussion of
information needed by attorneys to be provided by MSHA for
ongoing investigations and further assisting in the development
and procedures of criminal investigations and litigation. 11 I
uphold her claim of the investigative and work product
privileges.
Contestants have not shown an overriding need for
the document.
The motion to compel
denied.
Page 15 is dated 2/25/91. The Secretary asserts the
attorney-client privilege for an entry described as "Discussions
between Solicitor's Office attorneys and MSHA on litigation
strategy. 11 I uphold her cl~!m~ The motion to compel is denied.
Page 16 is headed 3/4 Staff Meeting. The Secretary asserts
the attorney-client, work product, and investigative privileges
for a deletion described as "Discussion between MSHA employee and
Asst. U.S. Attorney concerning the development and procedures of
handling criminal actions on AWC cases.n She asserts the same
privileges for another deletion described as "Discussion with
U.S. Attorney on strategy in proceeding against target company."
For both entries, I uphold the Secretary's claim of the attorneyclient and investigative privileges. The motion to compel is
denied.
Page 17 conta
a notation dated 3/5? for which the
Secretary claims attorney-client and work product privileges
because it would reveal 11 Discussion between MSHA and Solicitor 1 s
Office attorneys on strategy regarding AWC litigation involving
certain companies.ii I uphold her claim of work product
privilege.
Since Contestants have not shown an overriding need
for the document, the motion to compel is denied"
Page 18 contains a notation dated 3/13: for which the
Secretary claims attorney-client and investigative privileges
because it would reveal 11 results obtained in ongoing criminal
investigations and opinions on further developments with opinions
and advice from U.S. Attorneys to MSHA. 11 I uphold her claim of
both these privileges. The mot
to compel is denied.
Page 19 is completely deleted.
The Secretary asserts the
investigative privilege for an entry described as "Information
which indicates discussions about developments in criminal
investigations and might lead to information protected by 6(e)
grand jury matters. 11 I uphold the Secretary's assertion of the
investigative privilege.
Contestants have not shown an

1215

overriding need for the document.
denied.
VI.

The motion to compel is

Hugler Notes

The exhibit consists of pages from 1989, 1990, and 1991
calendars and identifies the excised portions by numbers which
correspond to lists detailing the Secretary's claims of
privilege.
1989 Calendar Entries
1. The Secretary asserts the investigative, attorneyclient, and work product privileges for an entry reflecting
conversation with the U.S. Attorney regarding the approach and
progress of the on-going criminal investigation.
I uphold the
Secretary's claim of the investigative privilege. Contestants
have not shown an overriding need for the document. The motion
to compel is denied.
2. The Secretary asserts the work product privilege for an
entry reflecting the concerns of the U.S. Attorney and
information relating to the on-going criminal investigation. I
uphold the Secretary's claim. Contestants have not shown an
overriding need for the document. The motion to compel is
denied.
3. The Secretary asserts the investigative, work product,
attorney-client, and deliberative process privileges for notes of
a meeting with the U.S. Attorney, MSHA, and the Solicitor's
office revealing information pertaining to the on-going criminal
investigation and potential criminal charges and civil
enforcement action.
I uphold the Secretaryus claim of the
investigat
and work product privileges. Since the Contestants
have not shown an overriding need for the document, the motion to
compel is denied.
4.
The Secretary asserts the investigative and deliberative
process privileges for an entry reflecting development of the
investigation and revealing the identity of a potential target.
I uphold the Secretary's claim of the investigative privilege.
Contestants have not shown an overriding need for the document.
The motion to compel is denied.
5. The Secretary asserts the attorney-client,
investigative, work product, and deliberative process privileges
for notes of a meeting with the U.S. Attorney and Department of
Justice reflecting development and coordination of investigations
and MSHA's participation regarding criminal investigation and
civil enforcement.
I uphold the Secretary's claim of the
investigative and work product privileges. Contestants have not

1216

shown an overriding need for the document.
denied.

The motion to compel

6. The Secretary asserts the investigative and deliberative
process privileges for an entry reflecting discussion with MSHA
special investigators regarding the on-going criminal
investigation and the effect of expanding the criminal
investigation upon MSHA 1 s resources.
I uphold the Secretary's
claim of investigative privilege. Contestants have not shown an
overriding need for the document. The motion to compel is
denied.
7. The Secretary asserts the deliberative process privilege
for an entry described as "Notes reflect Hugler's thought-process
for providing an appropriate MSHA response to hypothetical future
events." This description is not sufficient to enable me to rule
on the asserted privilege. I will order the document produced
for
camera inspection.
8. The Secretary asserts the investigative, attorneyclient, and work product privileges for notes of a report on a
meeting between MSHA and U.S. Attorneys regarding development of
the on-going criminal investigation, use of information, and
evaluation of the case. I uphold the Secretary's claim of the
investigative privilege, but not the attorney-client or work
product privileges. Contestants have not shown an overriding
need for the document. The motion to compel is denied.
1990 Calendar Entries
The Secretary asserts the investigative, attorneyand work product privileges for notes of a meeting with
's office and MSHA regarding the criminal
ites for
l enforcement actions.
I
uphold the Secretary~s claim of attorney-client privilege. The
mot
to compel is denied.
lo

The Secretary asserts the investigative: attorneycl
and deliberative process
leges for notes of a
1
meeLing with the Sol
s office and MSHA to
scuss a
decision regarding the on-going criminal investigation.
I uphold
the Secretary 1 s claim of the investigative and deliberat
s pr
, but not the attorney-client pr
lege.
Contestants have not shown an overriding need for the document.
The motion to compel is denied.
3. The Secretary asserts the attorney-client, deliberative
process, and investigative privileges for notes of a conference
call between Hugler, MSHA personnel, the Solicitor's off
, and
U.S. Attorneys regarding the progress of on-going criminal
investigations and possible action by MSHA.
I uphold the
Secretary's claim of the deliberative process and investigative

1217

privileges. Since Contestants have not shown an overriding need
for the document, the motion to compel is denied.
4. The Secretary asserts the investigative privilege for an
entry reflecting a development in an on-going criminal
investigation. I uphold her claim. Contestants have not shown
an overriding need for the document. The motion to compel is
denied.
5. The Secretary asserts the attorney-client, work product,
and deliberative process privileges for an entry reflecting
confidential discussions at a civil enforcement strategy meeting
between Hugler and the Solicitor's Office. I uphold the
Secretary's claim of all three privileges. The motion to compel
is denied.
6. The Secrctary asserts the attorney-client, work product,
and deliberative process privileges for an entry reflecting
confidential discussions at,,a meeting with Doug White involving
possible civil actions and litigation strategy. I uphold the
Secretary's claim of all three privileges. The motion to compel
is denied.
7. The Secretary asserts the deliberative process and
attorney-client privileges for an entry reflecting Hugler's
concerns about a possible Peabody plea agreement and a related
privileged communication to the Solicitor's office. I uphold the
Secretary's claim of the attorney-client privilege. The motion
to compel is denied.
8. The Secretary asserts the deliberative process,
investigative, and attorney-client privileges for an entry
reflecting cons
ion of MSHAis response to developments in an
on-going
investigation and a privileged communication
between the Assistant U.S. Attorney and MSHA.
I uphold the
Secretary's claim of the attorney-client and investigative
privileges. The motion to compel is denied.

s. The Secretary asserts the attorney-client,
invest
, and work product privileges for notes of a
confidential discussion between MSHA and the Solicitor 1 s office
regarding
ea bargain negotiations between the U.S. Attorney and
Peabody.
I uphold the Secretaryis claim of the work product
privilege.
Contestants have not shown an overriding need for the
document. The motion to compel is denied.
10. The Secretary asserts the deliberative process
privilege for an entry reflecting "Hugler's thinking regarding
issues and concerns that must be discussed and resolved prior to
initiation of civil enforcement action by MSHA." This
description
not sufficient to determine the claim of

1218

privilege.
I will order the document produced for in camera
inspection.
11. The Secretary asserts the attorney-client, work
product, and deliberative process privileges for notes of a
confidential discussion between MSHA and the Solicitor's office
regarding MSHA's civil enforcement options.
I uphold the
Secretary's claim of the attorney-client privilege. The motion
to compel is denied.
12. The Secretary asserts the deliberative process
privilege for notes reflecting Hugler's thoughts in preparation
for a meeting with the U.S. Attorney regarding initiation of
civil enforcement proceedings during on-going criminal
investigations.
I am unable to rule on the asserted privilege
with this description. The Secretary is directed to produce the
document for my in camera inspection.
13. The Secretary asserts the investigative, work product,
and attorney-client privileges for notes of a meeting with the
U.S. Attorney, Solicitor's office, and MSHA regarding the Peabody
plea agreement and future conduct of criminal investigations.
I
uphold the Secretary's claim of the investigative privilege.
Since Contestants have not shown an overriding need for the
document, the motion to compel
denied.
14. The Secretary asserts the deliberative process
privilege for notes reflecting "Hugler•s concerns and opinions
during meeting with U.S. Attorney, Solicitor's office, and MSHA
regarding Peabody plea agreement and future conduct of criminal
investigation." I am unable to rule on the asserted privilege
with this description. The Secretary is directed to produce the
document for my in camera inspection.
15. The Secretary asserts the investigative, deliberative
process, and work product privileges for notes of a telephone
conversation with the U.S. Attorney concerning the future course
of criminal investigations and potential evidence.
I uphold the
Secretary's claim of the investigative privilege. Since
Contestants have not shown an overriding need for the document,
the motion to compel is denied.
16. The Secretary asserts the attorney-client,
investigative, deliberative process, and work product privileges
for notes of a confidential discussion with the U.S. Attorney
concerning the Peabody case, information pertaining to criminal
investigations, investigative techniques, and the effect of
criminal investigations on civil enforcement proceedings.
I
uphold the Secretary's claim of the investigative and attorneyclient privileges. The motion to compel is denied.

1219

16A. The Secretary asserts the investigative privilege for
a note indicating the potential target of criminal investigation.
I uphold the Secretary's claim.
Since Contestants have not shown
an overriding need for the document, the motion to compel is
denied.
17.
The Secretary asserts the investigative privilege for
an entry reflecting considerations given to the effect of the
Peabody plea agreement language on pending DOL investigations.
I
uphold the Secretary's claim. Since Contestants have not shown
an overriding need for the document, the motion to compel is
denied.

}991 Calendar Entries
1.
The Secretary asserts the deliberative process privilege
for notes of 11 Hugler 1 s preparation for meeting later that day to
discuss the Peabody plea. These notes reflect Hugler's beliefs
and advice relating to MSHA's,public statement on the plea." I
am unable to rule on the asserted privilege with this
description.
The Secretary is directed to produce the document
for my in camera inspection.
2.
The Secretary asserts the attorney-client, work product,
and deliberative process privileges for notes of a confidential
meeting regarding preparation of the press release concerning the
Peabody plea. The description is not sufficient to enable me to
rule on the asserted privileges. The Secretary is directed to
produce the document for my in camera inspection.
3.
The Secretary asserts the deliberative process privilege
fer notes reflecting HuglerGs thoughts and outlining his
suggested organization of the proposed press release.
I deny the
s claim of
lege. The motion to compel
granted.

4.
The Secretary asserts the deliberative process privilege
for a note identifying an entity against which MSHA was
considering
itiating civ
action prior to April 4, 1991.
I am

unable to rule on the asserted privilege with this description.
The Secretary
directed to produce the document for my
camerq
ion.
5.
The Secretary asserts the deliberative process and
attorney-client privileges for a note of a discussion regarding
an entity and the timing of proposed civil action against that
entity.
I am unable to rule on the asserted privilege with this
description.
The Secretary is directed to produce the document
for my in gamera inspection.

6.
The Secretary asserts the deliberative process,
attorney-client, and work product privileges for notes of a
meeting with the Solicitor's office to plan a briefing for the

1220

Acting Secretary regarding AWCs and proposed enforcement actions.
I am unable to rule on the asserted privilege with this
description. The Secretary is directed to produce the document
for my
camera inspection.
7. The secretary asserts the deliberative process privilege
for notes of a briefing for the Acting Secretary regarding AWCs
and proposed enforcement actions. I uphold the Secretary's
claim. Contestants have not shown an overriding need for the
document. The motion to compel is denied.
8. The Secretary asserts the deliberative process and work
product privileges for notes of discussions regarding proposed
enforcement actions and assignments of responsibilities.
I am
unable to rule on the asserted privileges with this description.
The Secretary
directed to produce the document for my
in camera inspection.
9. The secretary asserts the deliberative process,
attorney-client, investigative, and work product privileges for
notes of a "confidential discussion of progress of investigations
and DOL position with DOJ regarding which types of cases should
be pursued criminally. In preparation for discussions with U.S.
Attorneys. 11 I uphold the Secretary's claim of the investigative
and work product privileges. Since Contestants have not shown an
overriding need for the document, the motion to compel is denied.
9A. The Secretary asserts the investigative, work product,
and attorney-client privileges for a note regarding a possible
target of criminal investigation and an exchange of comments
between MSHA and U.S. Attorneys.
I uphold the Secretary 1 s claim
of the investigat
privilege. Since Contestants have not shown
an overriding need for the document, the motion to compel is
denied.
lOc
The Secretary asserts the investigative, deliberative
process, and work product privileges for notes of a confidential
ing on an on-going criminal investigation.
I uphold the
Secretary's claim of the investigative privilege. Since
Contestants have not shown an overriding need for the document,
the motion to compel is denied.

11. The Secretary asserts the investigative, work product,
and attorney-client privileges for notes of a confidential report
on on-going criminal investigations.
I uphold the Secretary's
claim of the investigative privilege. Since Contestants have not
shown an overriding need for the document, the motion to compel
is denied.

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VII.

Tattersall Document

The exhibit consists of a single page and identifies two
excised portions by numbers which correspond to a list detailing
the Secretary's claims of privilege. The document is described
as an unrelated, unsigned summary of the AWC investigations,
marked "Confidential," prepared in early 1990.
1. The Secretary asserts the investigative and work product
privileges for an entry revealing the techniques, timing, and
pace of a criminal investigation and the strategy and opinions of
government attorneys and investigators. The description is
conclusory.
I will order the document produced for in camera
inspection.
2.
The secretary asserts the investigative privilege for an
entry revealing the location and potential targets of possible
criminal investigations.
Th~_description is conclusory.
I will
order the document produced for in camera inspection.
ORDER
In accordance with the above discussion, the Secretary is
ORDERED to produce on or before August 3, 1992, the document
denominated No. 3 in the Hugler Calendar-1991.
She is further
ORDERED to submit to me on or before August 3, 1992, for my
in camera inspection the documents described in the above
discussion.
In all other cases, her claim of privilege is
upheld, and the motion to compel is DENIED .
.

,
I (.

James A. Broderick
Administrative Law Judge
Distribution~
• 1
~Q Denise Galambos
Esq., Office of the
S. Department of Labor, 4015 Wilson Boulevard,
Arlington: VA 22203 (Certified Mail)

Uo

Henry

et,
., G. Lindsay Simmons, Esq., James Zissler,
Jackson and Kel
, 1701 Pennsylvania Avenue, N.W.,
Washington, DC 20006 (Certified Mail)
All others regular mail

/fb

1222

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
]}JO K S1 HCf T NW

W/,SHINGTOt( D.C.

ii

1 l OQf{

2(f)01)

July 31, 1992

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

v.

CIVIL PENALTY PROCEEDING
Master Docket No. 91-1
Docket No. WEST 92-102
A. C. No. 05-03455-03597 D
Southfield Mine

ENERGY FUELS COALu
INCORPORATED 11
Respondent
DENIAL OF MOTION TO LIFT STAY
This case is a civil penalty proceeding filed by the Secretary under section 105(d) of the Act. The citation involved in
this case dated June 7, 1991, charges the operator with a violation of 30 C.F.R. § 70.209(b) based upon the allegation that the
weight of the subject respirable dust cassette had been altered
and a portion of the dust removed.
On June 19, 1992, this case was stayed until a decision is
issued in IN RE: CONTEST OF RESPIRABLE DUST SAMPLES ALTERATION
CITATIONS, Master Docket No. 91-1 which is pending before Administrative Law Judge James A; Broderick. As stated in the June 19
orderq the Secretary i~sued 4700 citations on April 4, 1991,
which resulted in over 3000 notices of contest and over 700
penalty petitions all of which have been made a part of Master
Docket No. 91-1. As noted aboveg the citation
this case was
issued after April 4o All cases involving citations that were
issued after April 4 have been stayed so that the limited resources of the Commission in resolving the several thousand dust
cases
from the
l Li, citations are not unduly taxed.
On June 29, 1992, the operator filed a motion for relief of
The operator currently has two cases in the master docket,
WEST 91-475 and 91-476" The operator argues that the stay will
impose a great hardship and
will be prejudiced f this case
remains on stay and the others move forward.
According to the
operatoru the staying of this case will cause the doubling of the
costs to litigate the cases, and there
a likelihood that those
individuals involved with this case may no longer be employed by
the operator by the time a hearing is held.

on July 10, 1992, the Solicitor filed a response to the
operator's motion. The Solicitor states that the motion should
not 'be acted upon until Judge Broderick determines the order of
cases that will be brought to trial.

1223

As pointed out by both parties, Judge Broderick conducted a
prehearing conference in Master Docket 91-1 on July 17, 1992, to
determine the order of cases. At the prehearing conference Judge
Broderick stated that he will take under advisement how the cases
will proceed and requested that the parties submit brie-fs on this
issue.
I believe the most appropriate course here is to wait until
Judge Broderick decides how to proceed in the Master Docket.
If
this operator's cases are not to be heard first, then it loses
nothing by continuance of the stay. Were the operator's motion
granted at this stage every citation issued after April 4, 1991,
could be joined in the already unwieldy Master Docket. Accordingly u I conclude that this case should remain on stay.

In light of the foregoing, the operator's motion for relief
from stay is DENIED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, u. So Department of Labor, 4015 Wilson Boulevard,
Arlington VA 22203
(Certified Mail}
•
D. Barber, Esq., Welborn, Dufford, Brown & Tooley, PC,
700 Broadway, Suite 1700, Denver, co 80290-1701 (Certified
Mail)

Mr. Gary Carroll, Safety Director, Energy Fuels Coal, Inc., P.
3ox 449p ?lorence, co 81226
Certified Mail)

vU.S. GOVERNMENT PRINTINCOmCE:l 9 92 .3 ! 3. 2 6 op 3 3 7 6

1224

o.