FEBRVARY 19 9 7

COMMISSION PECISIONS AND ORDERS
02-18-97
02-26-97
02-28-97

Buffalo Crushed Stone, Inc.
Mingo Logan Coal Company
Sunny Ridge Mining Company

YORK 94-51-M
WEVA 93 - 392
KENT 93-63

Pg. 231
Pg. 246
Pg. 254

CENT 96 - 28-DM
CENT 96-124-M

Pg. 279
Pg . 283
Pg. 287

SE
96-367-D
SE
96 - 222-M
WEST 96-231-M
KENT 94-1199
WEST 96-208-M
CENT 96-1.-M
KENT 97-51-D
VA
96-21.-M
WEVA 96-77
PENN 95-467

Pg .
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

CENT 95-108-RM

Pg. 429

LAKE ' 94 - 7,Sl4-D
WEVA 94-3) 7-R
YORK 96-73-M

Pg. 435
Pg . 437
Pg. 442

ADMINISTRATIVE LAW JUPGE PECISIQNS
02-06-97
02-07-97
02 - 07-97
02-11-97
02-13-97
02-13-97
02-14-97
02-20-97
02-21-97
02-21 - 97
02-24-97
02-24-97
02-26-97

Patricia Ann Villines v. Cobre Mini ng Co.
Winn Construction Company, Inc.
Williams Natural Gas Company
UMWA on behalf of William Burgess et al .
v. Secretary of Labor et al.
IMC-Agrico Company
K H Concrete
Broken Hill Mining Company
Lakeview Rock Products, Inc.
Auxvasse Stone & Gravel Co.
Lendon Shepherd v. Consol of Kentucky
Eastern Ridge Lime Company, LP
Hobet Mining Inc.
Bellefonte Lime Company, Inc.

KENT 96-327

294
301
310
31.8
321.
384
392
398
411
416

APMINISTBATIVE LAW JUQGE ORQERS
02-03-97
02-05-97
02-18-97
02-24-97

Summit, Incorporated
Sec. Labor on behalf of Ke.n neth
Hannah, et ~1. v. Consolidation Coal
Laurel Run Mining Company
Redland Genstar Incorporated

i

PBBBUABY

1997

Review was granted in the following case 4uring the month of February;
Kenneth L. Driessen v. Nevada Goldfields, Inc., Docket No. WEST 96-291-DM.
(Judge Hodgdon, January 13, 1997) .

Reyiew was denied in the following case during the month of February;
Consolidation Coal Company v. Secretary of Labor, MSHA, Docket No.
WEVA 94-235 - R.
(Judge Barbour, January 3, 1997).

ii

COMMISSION DECISIONS

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

February 18, 1997

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

v.

Docket No. YORK 94-5 1-M

BUFFALO CRUSHED STONE, INC.
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1
DECISION
BY: Jordan, Chairman2
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mirie Act" or "Act"), involves alleged significant and
substantial ("S&S") violations of three separate safety standards: 30 C.F.R. § 56.14109(a), for
failure to locate an emergency stop cord along a conveyor belt so a person falling against the
conveyor could readily deactivate its drive motor; 30 C.F.R. § 56.11009, for failure to provide
cleats on an inclined walkway; and 30 C.F.R. § 56.11002, for failure to provide an adequate
stairway handrail. Administrative Law Judge Avram Weisberger concluded that Buffalo
Crushed Stone, Inc. ("Buffalo") did not violate section 56.14109(a) and that, although it vi~lated
sections 56.11009 and 56.11002, those violations were not S&S. 16 FMSHRC 2154,2158-61
(October 1994) (ALJ). The Commission granted the Secretary of Labor's petition for
discretionary review challenging these determinations. For the reasons that follow, we affirm in
part, reverse in part, and remand.

1

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

Chairman Jordan is the only Commissioner in the majority on all issues.

231

I.

Factual and Procedural Back~round
On December 15, 1993, Samuel Waters, an inspector from the Department ofLabor's
Mine Safety and Health Administration ("MSHA"), inspected Buffalo's Wehrle limestone quarry
in Erie County, New York. 16 FMSHRC at 2154. Inspector Waters observed an emergency stop
cord, strung alongside a conveyor belt, that was displaced for a length of approximately 20 feet
due to a bent "stand~d," i.e., a vertical piece of steel with a hole through which the cord runs. 3
16 FMSHRC at 2158; Tr. 40, 45-46. At the center of the 20-foot section, a 2- to 5-foot length of
the stop cord had dropped 2 inches below the level of the conveyor belt. 16 FMSHRC at 2158;
Tr. 42, 89-90, 92. The inspector detennined that, at this location, a person falling on or against
the conveyor from the adjacent walkway would not be able to readily deactivate the conveyor
drive motor by pulling the stop cord and that injury could result. 16 FMSHRC at 2158. He
issued Buffalo Citation No. 4289706, pursuant to section 104(a) of the Mine Act, 30 U.S.C.
§ 814(a), alleging an S&S violation of section 56.14109(a).4 16 FMSHRC at 2158-59; Tr. 46-48.
In addition, Inspector Waters observed a 16-foot-long section near the bottom of an
inclined, wooden walkway that was neither nonskid nor provided with "cleats." !d. at 2159; Tr.
49-50. Cleats are l-inch-square wooden boards nailed perpendicular to the walkway's edges,
usually 12 to 18 inches apart. 16 FMSHRC at 2159. The walkway was located outdoors
. adjacent to a conveyor belt and was approximately 70 to 90 feet long. Id; Tr. 51, 170. The
surface of the walkway contained "compacted material" that became slippery when wet. 16
FMSHRC at 2159-60. Waters determined that the uncleated portion of the walkway presented a
slipping hazard that could result in injury and issued Buffalo Citation No. 4289707, pursuant to
section 104(a) of the Mine Act, alleging an S&S violation of section 56.11009. 5 Jd

3

The total length of the conveyor belt was 75 to 100 feet. Tr. 41.

4

Section 56.14109 states, in relevant part:
Unguarded conveyors next to the travel ways shall be
equipped with -(a) Emergency stop devices which are located so that a
person falling on or against the conveyor can readily deactivate the
conveyor drive motor ....

30 C.F.R. § 56.14109.

s Section 56.11009 states:
Walkways with outboard railings shall be provided

232

Inspector Waters also observed a steep stairway leading to the tail of a conveyor belt. ld
at 2160. One side of the stairway was against a wall and the other side was provided with a
handrail that varied from 18 to 21 inches in height. ld; Tr. 55. The
. stairway extended 12 feet
'
above a concrete surface. 16 FMSHRC at 2160. Waters determined that the handrail was too
low to prevent a person descending the stairway from falling over the handrail and that injury
could result. ld He issued Buffalo Citation No. 4289709, pursuant to section 104(a) of the Mine
Act, alleging, an S&S violation of section 56.11002.6 ld. at 2160-61 ; Tr. 59.
Following an evidentiary hearing, the judge concluded that Buffalo had not violated
section 56.14109(a) regarding the emergency stop cord and dismissed the citation. 16 FMSHRC
at 2159. He noted that the standard does not require the stop cord to be located at a specific
height and that there was no evidence ~t a falling person could not readily deactivate the
conveyor at the cited location by pulling the stop cord. ld As to the inclined walkway, the
judge concluded that Buffalo had violated section 56.11009 but that the violation was not S&S
because the Secretary had failed to establish a reasonable likelihood of injury. ld at 2159-60.
Relying on testimony that there was no "debris" on the walkway and evidence·that the greater
portion of the walkway was provided with cleats, the judge found that slipping and falling in the
uncleated area was not reasonably likely to occur and assessed a civil penalty of$50. ld at 2160.
Concerning the stairway handrail, the judge concluded that Buffalo violated section 56.11002 but
that the violation was not S&S because the Secretary had failed to establish a reasonable
likelihood of injury. Id. at 2160-61. He found that there were no specific facts in the record
demonstrating that falling off the stairway was reasonably likely to occur and assessed a civil
penalty of$50. ld. at 2161.

wherever persons are required to walk alongside elevated conveyor
belts. Inclined railed walkways shall be nonskid .o r provided with
cleats.
30 C.F.R § 56.11009.
6

Section 56.11002 states, in part:
Crossovers, elevated walkways, elevated ramps, and
stairways shall be of substantial construction provided with
handrails, and maintained in good condition.

30 C.F .R § 56.11002.

233

II.
Disposition
A.

Emergency Stop Cord7

The Secretary argues that the administrative law judge erred when he concluded that no
violation of section 56.141 09(a) occurred. He asserts the judge ignored testimony that at the
cited location the stop cord was not readily accessible to a person who slipped or fell onto the
belt. S. Br. 2-3, 8-10. Buffalo responds that the judge correctly concluded that no evidence was
presented showing the conveyor could not be readily deactivated. It points out that the standard
does not specify the height of the cord relative to the conveyor and that Inspector Water' s
determinat~on that a violation existed was based solely on his interpretation of the law. B. Br. at
1, 3-4.
Buffalo correctly observes that section 56.14109(a) does not specify a particular
placement for the stop cord but requires that it be located so "a person falling on or against the
conveyor can readily deactivate the conveyor drive motor." The core interpretive issue,
therefore, is the meaning of the term "readily deactivate."
Inspector Waters explained that a stop cord is in its "correct location" when it is
"stretched tightly" and is "above the belt" because "in slipping and falling . . . you want your
elbow or arm to hit the stop cord before you hit the belt." Tr. 44, 116. He testified that a miner
should not have to "consciously think to grab the cord and pull it to deactivate it." Tr. 116. The
inspector stated that the "rule of thumb" he has been taught to apply is that the stop cord should
be "nice and tight" and located from "somewhere near the side edge of the belt to as much as
four inches above the side edge of the belt." Tr. 44, 115. He issued the subject citation because
one of the upright steel standards which holds the cord in place was bent and had caused a
portion of the stop cord to become slack and fall 2 inches below the conveyor belt. Tr. 40, 42.

It is well established that an agency' s interpretation of its own regulations should be
given "deference ... unless it is plainly wrong" and so long as it is "logically consistent with the
language of the regulation and . . . serves a permissible regulatory function." General Electric
Co. v. EPA, 53 F.Jd 1324, 1327 (D.C. Cir. 1995) (citations omitted); see also Energy West
Mining Co. v. FMSHRC, 40 F.3d 457, 462 (D.C. Cir. 1994). In addition, the legislative history
of the Mine Act provides that "the Secretary's interpretations of the law and regulations shall be
given weight by both the Commission and the courts." S. Rep. No. 181, 95th Cong., 1st Sess. 49
(1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th

7

Chairman Jordan and Commissioner Marks vote to reverse the judge' s determination
that there was no violation of section 56.141 09(a). Commissioner Riley would affirm the
judge's determination.

234

Cong., 2d Sess., Legislative History ofthe Federal Mine Safety and Health Act of1977, at 63 7
(1978). Here, because we conclude that the Secretary's interpretation of the stop cord standard is
consistent with its language and not unreasonable, deference to that interpretation is appropriate.
Section 56.141 09(a) requires the emergency stop device to be "located so that a person
falling on or against.the conveyor can readily deactivate the conveyor drive motor." The
Secretary has interpreted this standard to require stop cords to be taut and located above the
conveyor belt so that a falling person's arm or body can hit the stop cord "on the way down
during the fall." Tr. 117. The Secretary's interpretation is consistent with the language-of
section 56.141 09(a). The standard is directed at protecting someone who is "falling on or against
the conveyor" and requires that such person be able to "readily deactivate the conveyor drive
motor." 30 C.F.R. § 56.14109(a) (emphasis added). It is not limited to protecting persons who
have already fallen onto the conveyor belt. Moreover, according to the record, conveyor belts are
generally "anywhere from knee high to above waist high." Tr. 43. The Secretary asserts that
someone who is "falling" toward a moving belt of this height would fmd it virtually impossible
to locate a stop cord that is hangirig even slightly below the conveyor and, therefore, would not
be able to "readily" deactivate the conveyor before landing on it. In our view, the Secretary
reasonably concludes that a person in the process of falling will only be able to "readily
deactivate" the conveyor if he does not have to consciously look for the stop cord. By requiring
the stop cord to be located where it is likely a person's arm or body will automatically deenergize
the conveyor belt, the Secretary seeks to reduce the chance that a miner will fall onto that belt
while it is still moving, or that a miner will suffer injury by getting an arm caught as he tries to
catch himself. Tr. 44,115,117.
We note further that, by interpreting section 56.14109(a) in a manner that reduces the
likelihood of a miner who falls coming into contact with a moving belt, the Secretary has taken
an approach that is also consistent with the alternative 'means of compliance provided by 30
C.F .R. § 56.141 09(b). Under that section, in lieu of a stop cord, an operator can provide
protection from unguarded conveyors by installing railings "which are positioned to prevent
persons from falling on·or against the conveyor." ld Railings are not directed at miners who
have already fallen onto the belt; they afford protection by preventing persons from coming into
contact with the moving conveyor. Likewise, by requiring stop cords to be located so they will
deenergize the belt "on the way down during the fall," the Secretary seeks to prevent miners from
coming into contact with the moving conveyor, rather than simply providing miners with a
means of deactivating the belt once they have landed on it. Tr. 117.
Unable to explain why the interpretation to which we defer is unreasonable, our
dissenting colleague chooses to characterize it as nothing more than the inspector's "personal
belief." Slip op. at 12. Our colleague misapprehends the circumstances of this case. While we
agree that operators should not be penalized on the basis of subjective or inconsistent
applications of a regulatory requirement, these considerations are not present here. The
interpretation of the stop cord standard is not the solitary idea of a rogue inspector. On the
contrary, the Secretary, through his Solicitor, has urged this Commission to affirm the citation on

235

the very basis articulated by Inspector Waters. S. Br. at 8-10. Moreover, the stop cord
interpretation the Secretary advances here is identical to his position in Asarco, Inc., 14
FMSHRC 829, 831-32 (May 1992) (ALJ), a case which the Commission did not review.
Furthermore, the operator makes no claim that it was unaware ofMSHA's interpretation or
subjected to inconsistent applications ofMSHA's stop cord requirement. Indeed, the record
shows it had previously been cited for a similar stop cord violation. Tr. 91. Thus, we are not
confronted with the situation in which a "regulated party is not 'on notice' of the agency's
ultimate interpretation ... and may not be punished." General Electric Co. v. EPA, 53 F.3d at
1334.
Our colleague also contends that the interpretation advocated here constitutes an
. amendment of the standard, which may only be enforced after a formal rulemak.ing proceeding.
The Secretary's parameters for compliance, however, do not offer an "interpretation that
repudiates or is irreconcilable with an existing legislative rule," see American Mining Congress
v. MSHA, 995 F.2d 1106, 1113 (D.C. Cir. 1993), so as to require formal rulemak.ing; they merely
explain the agency' s understanding of the term "readily deactivate." As such, the agency is not
required to initiate APA rulemaking when it "seeks merely to clarify or explain existing law."
Drummond Co., 14 FMSHRC 661 , 684-85 (May 1992).
In sum, we conclude that the Secretary's interpretation of section 56.14109(a) is
reasonable and entitled to deference because it is consistent with the language of the standard, it
furthers the safety aims of the standard, and it is in harmony with the alternative requirement
pertaining to unguarded conveyors.
Applying the Secretary' s interpretation to the facts of this case, we conclude that
substantial evidence does not support the judge's determination that Buffalo did not violate
section 56.14109(a). Here, there is no dispute that a portion ofthe stop cord was slack and had
fallen below the conveyor belt. As such, it was not a stop device which could "readily
deactivate" the conveyor drive motor. Accordingly, we reverse the judge' s determination that
Buffalo did not violate section 56.141 09(a) and remand for determination of whether the
violation was S&S and assessment of a civil penalty.
B.

Inclined Walkway8

The Secretary argues that substantial evidence does not support the judge's conclusion
that the violation of section 56.11 009 was not S&S. He asserts the judge misstated testimony
and ignored evidence showing that slipping and falling on the uncleated portion of the walkway
was reasonably likely to occur. S. Br. 1-2, 5-6. He also contends the judge erred in relying on
evidence that the greater portion of the walkway was provided with cleats. /d at 5-6. Buffalo

8

All Commissioners vote to reverse the judge's determination that the violation of
section 56.11009 was not S&S.

236

responds that substantial evidence supports the judge's fmding. It asserts that the judge properly
credited evidence that the walkway did not have any tripping hazards, it was not wet or slippery
at the time of the inspection, guardrails and stop cords were in place, the standard does not
specify the distance between cleats, and no serious injury had resulted or would result from a
person falling on the walkway. B. Br. at 1, 2-3.
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Div., Nat 'I Gypsum Co. , 3
FMSHRC 822, 825 (April1981). In Mathies Coal Co. , 6 FMSHRC I (January 1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor inust 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.

ld. at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995);Austin Power, Inc. v. Secretary ofLabor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. U.S. Steel Mining Co. , 7 FMSHRC i 125, 1130 (August
1985).
The first and second elements of the Mathies criteria have been established: the judge
found that Buffalo violated the standard and that a person traveling along the uncleated portion
of the walkway would be exposed to the risk of slipping and falling. 16 FMSHRC at 2159-60.
The issue on review is whether the judge erred in concluding that the Secretary failed to establish
the reasonable likelihood of an injury-producing event.

In concluding the Secretary failed to establish the third Mathies element, the judge noted
that "[a]ccording to [Buffalo employee Thomas] Rashford, there was no debris on the walkway.
The greater portion of the walkway was properly provided with cleats." Id at 2160. We agree
with the Secretary that the judge misstated Rashford's testimony. Rashford testified that there ·
was debris on the walkway but that it did not present a stumbling hazard. Tr. 164. Further,
testimony that the material on the outside walkway became slippery when wet (Tr. 50-52,97,
170) was not refuted. Buffalo's argument that the walkway was not slippery at the time of the ·
inspection is not determinative because an evaluation of the reasonable likelihood of injury is t9
be made assuming continued normal mining operations. U.S. Steel, 7 FMSHRC at 1130. In

237

addition, the judge erred in considering that the greater portion of the walkway was provided
with cleats. The fact that a portion of the walkway is cleated is irrelevant to the likelihood of
slipping in the uncleated area.
Buffalo's remaining arguments are unavailing. While the standard's failure to specify the
distance between cleats would be relevant to whether there was a violation, it is not relevant to
whether the violation was S&S. In addition, evidence that guardrails on the walkway and stop
cords on the adjacent conveyor belt were in place is not dispositive of the reasonable likelihood
that slipping on the walkway surface would result in an injury. Similarly, the fact that no injuries
had been reported as a ~esult of the condition ofthe walkway is not determinative of a conclusion
that the third Mathies element has not been established. Blue Bayou Sand and Gravel, Inc., 18
FMSHRC 853, 857 (June 1996).
In sum, we conclude that substantial evidence does not support the judge' s determination
that Buffalo's violation of section 56.11009 was not reasonably likely to result in an injury.
Accordingly, we reverse the judge's holding that the violation was not S&S and remand the
matter for reassessment of the civil penalty.9
C.

Stairway HandraiJI 0

The Secretary argues that substantial evidence does not support the judge's conclusion
that the violation of section 56.11002 was not S&S. He asserts the judge ignored evidence that
falling down the stairway was reasonably likely to occur. S. Br. 1-2, 7-8. Buffalo responds that
substantial evidence supports the judge's finding. It asserts that, given the 54 degree angle of the
stairway, the handrail was in the proper location to restrain a miner of average height if he
slipped. B. Br. at 1, 3. 11

9

Although the judge did not expressly consider the fourth Mathies element, the evidence
establishes that an injW)' resulting from slipping on the walkway would be of a reasonably
serious nature. Inspector Waters testified that slipping on the walkway could result in a head
injury or a finger or wrist fracture. 16 FMSHRC at 2160.

° Chairman Jordan and Commissioner Riley vote to affirm the judge's determination

1

that the violation of section 56.11002 was not S&S. Commissioner Marks would reverse the
judge's determination.
11

Buffalo did not, however, challenge the judge's ruling that it violated the standard.
Consequently, that issue is not before us.

238

The issue on review is whether the judge erred in concluding that the Secretary failed to
establish the reasonable likelihood of an injury-producing event, the third Mathies element. 12
Inspector Waters testified that the stair treads were a nonskid surface and that there were no
tripping hazards on the stairs. Tr. 105. Further, Waters acknowledged that, as the steepness of a
stairway increases, "the handrail should be more consistent with where [one's] hands or a
comfortable position would be." Tr. 106. He conceded that a person descending the stairway
would be able to hold the handrail from a standing position without bending forward (Tr. 124),
establishing that the. handrail was positioned consistently with the location of a miner' s hand.
We therefore conclude that the judge correctly determined that the Secretary failed to
prove the reasonably likely occurrence of an injury resulting from Buffalo's violation of section
56.11002. Accordingly, we affirm the judge's holding tliat the violation was not S&S.

lll.
Conclusion
For the foregoing reasons, we reverse the judge's determinations that there was no
violation of section 56.14109(a) and that the violation of section 56.11009 was not S&S, and we
remand for further consideration consistent with this opinion. We affirm the judge's
determination that the violation of section 56.11002 was not S&S.

12

Contrary to the Secretary' s assertions, the judge expressly recognized that the stairway
was steep and that one side of the stairway was against a wall. 16 FMSHRC at 2160.

239

Commissioner Marks, concurring in part and dissenting in part:
For the reasons expressed in the majority opinion, I concur in the conclusion to reverse
the judge's negative finding of violation regarding the emergency stop cord citation. I also
concur in the decision to remand this matter for the judge's determination of whether the
violation was S&S and for the assessment of a civil penalty.
Regarding the inclined walkway violation, I concur in the conclusion to reverse the
judge's negative S&S determination and I also concur in the determination to remand for
reassessment of the civil penalty. However, in disposing of the S&S issue, my colleagues find
that substantial evidence does not support the judge's determination that the violation "was not
reasonably likely to result in an injury" as set forth in the Commission's so-called Mathies test.
Slip op. at 6-8 (citing Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984)). Although I do not
disagree with that finding, I continue to urge that the ambiguous language of the Mathies test,
and in particular the third element therein, argues for Commission clarification of its
interpretation of the Act's S&S language. It seems extraordinary to me that neither the Secretary
nor affected operators have taken issue with the Mathies language which has, for 13 years,
continued to cause increased litigation, time, and expense to all parties concerned in the cases
brought before the Commission. Thus, for the reasons set forth in my concurring opinion in U.S.
Steel Mining Co., 18 FMSHRC 862, 868 (June 1996), I conclude that reliance upon the third
Mathies element is an inappropriate basis upon which to support the S&S conclusion. In this
case, the record evidence referenced in the majority opinion clearly demonstrates that the
violation posed a risk of injury that was neither remote nor speculative. Therefore, on that basis,
I concur in the reversal of the judge's negative S&S conclusion.
My colleagues affirm the judge's determination that the stairway handrail violation of
30 C.F.R. § 56.11002 was not S&S. Slip op. at 8-9. I disagree and therefore I dissent. Once
again my colleagues' persistence in applying the Mathies test, and in particular the third element,
results in a ruling that I believe is inconsistent with the law.
Citation No. 4289709, charging a S&S violation of section 56.11002, states:
The stairway leading to the tail area on the No. One
conveyor was not provided with an adequate handrail. On the side
away from the wall, the handrail provided (one rail only) was
found to be eighteen inches (18 in.) to twenty[-]one inches (21 in.)
above the stair steps. The handrail was insufficiently high to
protect a worker descending the stairs if he were to slip, trip, or
otherwise fall. This was a potential fall of person hazard. The
staircase consisted of twenty[-]one (21) steps, with an approximate
fall of person height of up to twelve (12) feet to concrete below.

240

In concluding that the violation was proven by the Secretary, the judge determined that,
Waters [the MSHA inspector who issued the citation and who
testified] opined that the handrail at issue was too low to restrain a
person who might fall using the stairway. Respondent did not
impeach or contradict this opinion. It therefore is accepted.
16 FMSHRC 2154,2161 (October 1994) (ALJ). That crucial finding by the judge, and his
conclusion that the "lack of a proper handrail contributed to the hazard of a person falling off the
stairway" {id.), coupled With testimony that the subject handrail "wasn't quite knee high," the
steep 54 degree inclined stairway was frequently used by miners who routinely carried
equipment and tools, and the risk involved a fall of a distance of 12 feet onto a concrete floor,
causes me to conclude that the Secretary established that the violation was S&S. See Tr. 55, 5759, 160, 168-171. Thus, on this record, I conclude that the violation posed a risk of injury that
was neither remote nor speculative and therefore it was S&S.
Accordingly, I dissent and would reverse the contrary ruling of the judge.

Marc Lincoln Marks, Commissioner

241

•

Commissioner Riley, dissenting in part:
With regard to the emergency stop cord issue, my colleagues imagine specificity where
the regulation demands flexibility. Imagination may be the soul of creativity, but it does little in
this case to fill the void where the law is silent.
The judge, after hearing the testimony of the witnesses, examining the evidence, and
considering the scope of the regulation, found the stop cord falling within the minimal
parameters adopted by the Secretary for this regulation. I concur with his judgment.
As set forth in the facts, 30 C.F.R. § 56.14109 provides:
U~guarded conveyors next to the travelways shall be

equipped with -(a) Emergency stop devices which are located so that a
person falling on or against the conveyor can readily deactivate the
conveyor drive motor ... .
Slip op. at 2 n.4 (emphasis added).
The inspector who issued the citation testified that he had overheard other inspectors say
the stop cord should be located "somewhere near the side edge of the belt to as much as four
inches above the side edge of the belt." Tr. 44-45. This, according to the record, appears to be
the sum total of everything MSHA ''taught" their inspectors regarding stop cord placement prior
to the Secretary filing his opening brief. In this inspector's judgment the stop cord was "maybe
six inches below where I would like to see [it)." Tr. 88. The inspector recognized that the
regulation does not specify a height requirement. He also admitted that his issuance of the
citation for the stop cord was a "judgment call." Tr. 44-45, 90, 126.
The Commission has held that a safety standard cannot be "so incomplete, vague,
indefinite or uncertain that [persons] of common intelligence must necessarily guess at its
meaning and differ as to its application." Alabama By-Products Corp., 4 FMSHRC 2128,2129
(December 1982) (citation omitted). Since the inspector's citation was not based on the language
of the regulation, MSHA's Program Policy Manual, a program policy letter, an interpretive
bulletin, or Commission precedent, it- represents nothing more than his personal belief or agency
lore regarding the proper height of the stop cord. To his credit, the judge declined to hold the
operator to the inconsistent and subjective standard enunciated by the inspector, adopted post hoc
by the Secretary (absent prior notice to the regulated community and even, according to the
record, his own MSHA staff), and now affirmed by the majority.
The Secretary obviously wishes he had promulgated a more specific regulation consistent
with the inspector's detailed testimony that the cord must be situated so as to automatically
deenergize the conveyor if someone falls against the belt. My fellow Commissioners are

.242

determined to make up for the Secretary's oversight by retroactively promulgating a specific
regulation. No doubt there are efficiency-in-government advantages to dispensing with
inconvenient and time-consuming statutory mandates like prior notice and public comment.
However, the Commission should not short-circuit the legal prerequisites of formal rulemaking.
I cannot fmd any defmition of"readily" that is synonymous with the word
"automatically." Nor do I find any language to support the majority's adoption of the inspector's
"not ... consciously think" standard as the most reasonable interpretation of where and how to
position a stop device. Tr. 116. It is well established that regulations should be read as whole,
giving .comprehensive, harmonious meaning to all provisions. See McCuin v. Secretary of
Health and Human Services, 817 F.2d 161, 168 (1st Cir. 1987); 2 Am. Jur. 2dAdministrative
Law§ 239 (1994). "Just as a single word cannot be read in isolation, nor can a single provision
of a statute." Smith v. United States, 508 U.S. 223,233 (1993). Section 56.14109(a) becomes
the only section of the Mine Act that I am aware of which does not require the miner to be
conscious of and attentive to his s~oundings!

a

Furthermore, I am at a loss to understand why the majority finds support for its decision
in Asarco, Inc., 14 FMSHRC 829 (May 1992) (ALJ). While the Secretary did raise the identical
position almost 2 years earlier, the majority fails to note that the judge soundly rejected the
Secretary's interpretation that the cord had to be placed where it is likely a person's arm or body
will automatically deenergize the conveyor belt. The judge stated:
This standard does not require that an operator locate its stop cords
so that it guarantees that a person who falls on or against a
conveyor will first fall on or through that stop cord. ...
. . . The standard does not define, mandate nor restrict the
~'location" of the stop cord, other than to state that it must be
"readily" accessible to the person who is falling. It does not
prohibit stop cords below, at, or above any particular component of
a conveyor. With respect to a belt conveyor, the standard does not
dictate placement vis-a-vis the floor, the upper or lower belts, the
upper or lower idlers, the pulleys, or the drive motor.

Id. at 834. The judge concluded his decision with some words of advice for the Secretary:
If the Secretary truly desires to direct the specific location of stop
cords and further wishes to require that a person falling on or
against a conveyor first fall ''through" the stop cord, then the
Secretary must pursue this goal through notice-and-comment
rulemaking. The Secretary should promulgate a standard to clearly
and directly address not only the perceived hazard but also clearly
inform the mine operator what he must do for compliance. In

243

short, the Secretary's interpretation ( 1) contradicts the "plain
meaning" of this performance standard; and (2) violates the
rulemaking requirements of the Mine Act.

!d. at 836.
The majority acknC?wledges that the Commission did not review Asarco. Slip op. at 6.
They omit that the Secretary did not challenge that ruling nor did he, in the interim, attempt to
promulgate any differen~ interpretation of the r~gulation than that to which he acquiesced by
default in Asarco. Does the majority honestly believe that the mining community had a legal
obligation to make significant changes to its stop device configurations based entirely on the
Secretary's losing position in Asarco? In the instant case the parties have changed, the facts vary
as well from Asarco, but the legal principle remains constant-- the Secretary's interpretation of
30 C.F.R. § 56.14109(a) is still contrary to the "plain meaning" of the regulation.
The majority decision arbitrarily affirms a capricious standard, which finds no foundation
in the language or history of the regulation. If a conveyor belt that a person can "readily
deactivate" actually means a belt that "automatically deenergizes" whenever a person
approaches, the regulation should be revised by the Secretary through formal rulemaking. This
process would afford MSHA an opportunity to include in the regulation an appropriate standard
supported by safety engineering studies, rather than the arbitrary standard here imposed by
administrative fiat without the benefit of consultation with the mining community.

244

Distribution

Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Sal Castro, Safety Director
Buffalo Crushed Stone, Inc.
2544 Clinton St.
P.O. Box 710
Buffalo, NY 14224
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

245

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

February 26, 1997

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

Docket No. WEVA 93-392

MINGO LOGAN COAL COMPANY

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

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises .under the Federal Mine Safety and Health Act of
1977,30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is whether Commission
Administrative Law Judge Roy J. Maurer properly determined that mine operator Mingo Logan
Coal Company ("Mingo Logan") was liable for a training violation, under 30 C.F.R. § 48.5,2
committed by one of its independent contractors. 17 FMSHRC 156 (February 1995) (ALJ). The
Commission granted Mingo Logan's petition for discretionary review. For the reasons that
follow, we affirm the judge's decision.

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
2

Section 48.5(a) provides in pertinent part:

Each new miner shall receive no less than 40 hours of training as
prescribed in this section before such miner is assigned to work duties.

246

I.
Factual and Procedural Back~round
Mingo Logan leases and operates the Mountaineer Mine, an underground coal mine in
Mingo County, West Virginia. 17 FMSHRC at 157; Tr. 42. In 1991, Mingo Logan contracted
with independent contractor Mahon Enterprises (" Mahon") for the performance of various
construction services in the mine. 17 FMSHRC at 157. On March 2, 1992, Mahon was hired to
construct an underground belt conveyor system. ld
On August 3, 1992, Inspector Robert Rose of the Department of Labor' s Mine Safety and
Health Administration (" MSHA") conducted an audit of Mahon's training records and
discovered that four employees had received "newly employed experienced miner training"
when, according to the records, the four employees did not qualify as "experienced miners." Jd
Later documentation indicated that three of the miners were properly classified and that only
Timothy Sargent did not meet the regulatory definition of an experienced miner and therefore
received improper training. /d. at 158-59. Sargent should have received training for "newly
employed inexperienced miners" as required by section 48.5(a). ld at 158. The training for
newly employed experienced miners takes approximately four hours, whereas the training for
inexperienced miners lasts 40 hours and covers mining topics in much greater detail. Tr. 68-69,
157, 167-68. Compare 30 C.F.R. §§ 48.5 and 48.6.
Mahon was cited and paid a civil penalty for this violation. 17 FMSHRC at 158. The
inspector also issued. a section 104(a) citation to Mingo Logan alleging a violation of section 48.5
for failing to ensure that Mahon' s employee was properly trained. Id. The inspector testified
that he issued the citation under MSHA' s policy of overlapping compliance which provides that,
if employees of both the operator and the independent -contractor are affected by the violation,
both entities should be cited.3 /d.; Tr. 60.
3

Volume Ill, Part 45 ofMSHA's Program Policy Manual6 (7/1/88 Release 111-1)
("PPM") states in pertinent part that:
"[O]verlapping" compliance responsibility means that there may be
circumstances in which it is appropriate to issue citations or orders
to both the independent contractor and to the production-operator
for a violation. Enforcement action against a production-operator
for a violation(s) involving an independent contractor is normally
appropriate in any of the following situations: ... (3) when the
production-operator's miners are exposed to the hazard . . . . In
addition, the production-operator may be required to assure
continued compliance with standards and regulations applicable to
an independent contractor at the mine.

247

Mingo Logan contested the violation on the grounds that the violation was committed
entirely by Mahon and, contractually, Mingo Logan had no authority to hire, fire, train or
supervise Mahon employees. 17 FMSHRC at 159.
Following an evidentiary hearing, the judge concluded that Mingo Logan was liable for
the violation. /d. at 160. The judge reasoned that MSHA had the discretion to ( 1) hold Mingo
Logan strictly liable for all violations of the Act that occur on the mine site and (2) cite both the
production-operator and the independent contractor for a violation committed by one of the
contractor's employees. /d. at 159. Relying on W-P Coal Co., 16 FMSHRC 1407 (July 1994),
the judgl.! explained that tile Commission reviews the Secretary's enforcement decisions for an
abuse of discretion, and determined that Inspector Rose did not abuse his discretion in citing
Mingo Logan for the training violation. /d. at 159-60. The judge concluded that the violation
was 11ot S&S and that Mingo Logan's negligence was "nil." ld. at 160-63. He assessed a penalty
of$1 00. /d. at 164.
Mingo Logan challenged the judge's liability determination in a petition for discretionary
review, which was granted by the Commission.
II.
Disposition
Mingo Logan contends that the judge erred in concluding that the Secretary's decision to
proceed against Mingo Logan was not an arbitrary or capricious exercise ofdiscretion. PDR4 at
4. Mingo Logan also asserts that the judge erred in failing to address the Secretary's argument
that his enforcement discretion is complete and unreviewable. /d. at 5. It contends that the
Secretary's citation violates the Guidelines and that its change of compliance policy must be
published in the Federal Register. /d. at 6-7. Additionally, Mingo Logan asserts that the judge
erroneously ( 1) altered the Secretary's burden of proof for establishing overlapping compliance
and (2) concluded that Mingo Logan employees were exposed to the alleged hazard created by an
independent contractor, even though this fact was not established by substantial evidence. /d. at
11-12. Further, Mingo Logan argues that the Secretary's decision to pursue it for an independent.
contractor's training violation fails to further the protective purposes of the Act. R~ply Br. at 13.

17 FMSHRC at 158 n.l; R. Ex. 3. The policy was first set forth in the Enforcement Policy and
Guidelines for Independent Contractors published at 45 Fed. Reg. 44,497 (July 1980). The PPM
and the Guidelines For Independent Contractors are collectively referred to herein as the
"Guidelines."
4

Pursuant to Commission Rule 75, 29 C.F.R. § 2700.75, Mingo Logan designated its
petition as its opening brief; in addition, Mingo Logan filed a reply brief to which it attached its
post-hearing brief to the judge.

248

The Secretary responds that the judge's decision should be upheld because the
Secretary has unreviewable enforcement discretion to cite a production-operator, its independent
contractor, or both, for violations of the Mine Act committed by the independent contractor's
employee. S. Br. at 8. In the alternative, the Secretary asserts that, even if he does not have
unreviewable discretion, the judge properly concluded that the Secretary did not abuse his
discretion in deciding to cite Mingo Logan. I d. Additionally, the Secretary contends that
substantial evidence supports the judge's finding that the inspector did not abuse his discretion in
deciding to cite Mingo Logan based upon one of the grounds specifically set forth in the
Guidelines for citing produ~tion-operators for violations of their independent contractors. I d. at
8-9, 25-31. The Secretary adds that, in any event, he is nqt bound by the criteria set forth in the
Guidelines and, thus, even if Mingo Logan were correct that substantial evidence fails to support
the judge's decision that the Secretary properly applied the Guidelines, the judge correctly
determined that Mingo Logan violated section 48.5. ld. at 9, 21-23.
The parties stipulated that ~ingo Logan was the operator with the overall responsibility
of running the mine. 17 FMSHRC at 156-57; Tr. 40. As the judge recognized, MSHA may hold
Mingo Logan, because of its operator status, strictly liable for all violations of the Act that occur
on the mine site, whether committed by one of its employees or an employee of one of its
contractors. 17 FMSHRC at 159. This conclusion is clearly supported by Commission
precedent. For instance, in Bulk Transportation Services, Inc., 13 FMSHRC 1354 (September
1991}, the Commission held that ''the Act's scheme of liability [that] provides that an operator,
although faultless itself, may be held liable for the violative acts of its employees, agents and
contractors." ld. at 1359-60. See also Cyprus Indus. Minerals Co. v. FMSHRC, 664 F.2d 1116,
1119 (9th Cir. 1981) ("Mine owners are strictly liable for the actions of independent contractor
violations.").
The judge also properly explained that MSHA has the discretion to cite both the operator
and the independent contractor for a violation committed by a contractor. 17 FMSHRC at 159.
In Consolidation Coal Co., 11 FMSHRC 1439, 1443 (August 1989), the Commission held that
the Secretary did not abuse his discretion by proceeding against both an operator and its
independent contractor. The D.C. Circuit in Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d
· 533, 534, 538-39 (D.C. Cir. 1986) (reversing 6 FMSHRC 1871 (August 1984)), similarly
determined that the Secretary could cite both the operator and independent contractor for a
violation committed by the independent contractor.
Furthermore, in W-P, the Commission held that, "in instances of multiple operators," the
Secretary has ''wide enforcement discretion" and "may, in general, proceed against either an
owner-operator, his contractor, or both." 16 FMSHRC at 1411. The Commission, nevertheless,
recognized that "its review of the Secretary's action in citing an operator is appropriate to guard
against abuse of discretion."5 /d. In that case, the Commission determined that the Secretary

5

A litigant seeking to establish an agency's abuse of discretion bears a heavy burden.
See, e.g., In re: Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC 1819,

249

acted permissibly in citing W-P, even though an independent contractor operated the mine. /d.
Although it did not run the mine, W-P maintained substantial involvement in the mine's
engineering, financial, production, personnel and safety affairs. /d. As the operator with overall
responsibility ofrunning the mine (17 FMSHRC at 156-57), Mingo Logan's involvement in dayto-day mining activities surpasses that of the operator in W-P.
In addition, substantial evidence supports the conclusion that the Secretary met the
Guidelines' standard for enforcement action against a production-operator. According to the
Guidelines, such action is appropriate ·•when the production-operator' s miners are exposed to the
hazard .'' R. Ex. 3; 45 Fed. Reg. 44,497. As the production-operator at the time of the citation,
Mingo Logan had 160 to 170 employees working with 137 Mahon employees at the mine. 17
FMSHRC at 157; Tr. 72, 134, 197. Mahon and Mingo Logan employees were often in the same
general vicinity at various locations in the mine. Tr. 60-61, 197. Mingo Logan's employees
worked in close enough proximity to Mahon' s employees so that an undertrained, inexperienced
Mahon miner put employees of both Mahon and Mingo Logan at risk. The record revealed that,
although the belt on which Sargent worked was exclusively staffed by Mahon employees, Mingo
Logan employees were located in the adjoining entries and James Matthew Murray, the Safety
Technician at Mountaineer Mine, testified that if Sargent lit a cigarette or created another hazard,
Mingo Logan employees could be exposed to a potentially dangerous condition. Tr. 111, 153-56.
These factors, along with the evidence indicating Mingo-Logan's substantial involvement in the
mine's day-to-day affairs, lead us to conclude that the Secretary did not abuse his discretion in
proceeding against Mingo Logan for this violation.6
We note that even if the Secretary had failed to abide by the Guidelines, that fact would
not prove fatal to his enforcement decision. In Cathedral Bluffs, the D.C. Circuit squarely
rejected an argument identical to Mingo Logan's here that the Secretary's decision to cite it was
not in accord with the Guidelines and that, if the Secretary intends to abandon its independent
contractor policy, he should do so by notice published in the Federal Register. As the court
explained, even though published in the Federal Register, the Guidelines expressly warned that it
was only a "general policy" that does not alter the "overall compliance responsibility of
production-operators" of "assuring compliance with the standards and regulations which apply to
work being perfonned by independent contractors at the mine." 796 F.2d at 538 (citing 45 Fed.
Reg. at 44,497). In D.H. Blattner & Sons, Inc., 18 FMSHRC 1580, 1586 (September 1996),

1844 (November 1995), appeal docketed, No. 95-1619 (D.C. Cir. Dec. 28, 1995) (appellate court
loath to disturb matters that are subject to review for an abuse of discretion). Abuse of discretion
may be found "only if there is no evidence to support the decision or if the decision is based on
an improper understanding of the law." Utah Power & Light Co., Mining Division, 13 FMSHRC
1617, 1623 n.6 (October 1991) (citing Bothyo v. Moyer, 772 F.2d 353,355 (7th Cir. 1985)).
6

Because we conclude that the Secretary' s citation satisfied the Guidelines, we do not
reach Mingo Logan's contention that the judge erred by shifting the burden of proof under them.

2 50

appeal docketed, No. 96-70877 (9th Cir. Oct. 21, 1996), the Commission recently reaffirmed that
the Guidelines are non-binding on the Secretary. Consequently, the Secretary need not give
notice by publication in the Federal Register in circumstances where he does not follow the
Guidelines.
Finally, Mingo Logan' s assertion that the citation against it fails to promote the protective
purposes of the Mine Act is inconsistent with the rationale of the Ninth Circuit in Cyprus, 664
F.2d at 1119-1120. There the court stated that holding owner-operators liable for violations
committed by independent contractors promotes safety because "the owner is generally in
continuous control of the entire mine" and "is more likely to know the federal safety and health
requirements." /d at 1119. The court also posited that "[i]fthe Secretary could not cite the
owner, the owner could evade responsibility for safety and health requirements by using
independent contractors for most of the work." /d. We agree with the Secretary that holding a
production-operator liable for violations of their independent contractors, provides operators with
an incentive to use independent contractors with strong health and safety records. Here, where
Mingo Logan is the lessee and production-operator for the entire mine, the same considerations
apply.'

7

In light of our conclusion, we do not address the Secretary's argument that he has
unreviewable discretion to cite the operator, its independent-contractor or both. Accordingly, we
also reject Mingo Logan's argument that the judge erred by failing to reach this issue. Because it
was not a necessary basis of his holding, the judge did not need to address the Secretary's poirit,
just as we do not reach it on review. /NSv. Bagamasbad, 429 U.S. 24, 25-26 (1976) ("As a
general rule courts and agencies are not required to make findings on issues the decision of which
is unnecessary to the results they reach.")

251

III.
Conclusion
For the foregoing reasons. we affirm the judge' s determination that mine operator Mingo
Logan was liable for the violation of 30 C.F .R. § 48.5(a) committed by one of its independent
contractors.

Jie~.t!::-~

k

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

252

Distribution

David J. Hardy, Esq.
Jackson & Kelly
P.O. Box 553
·charleston, WV 25322
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Roy J. ¥aurer
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

253

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

February 28, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. KENT 93-63, etc.

v.
SUNNY RIDGE MINING COMPANY, INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. KENT 94-453
KENT94-454

v.
MITCH POTTER and TRACY DAMRON,
employed by SUNNY RIDGE MINING
GOMPANY, INC .

. BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1
DECISION
BY: Jordan, Chairman; and Marks, Commissioner
These civil penalty proceedings, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"), raise the issues of whether Sunny Ridge
Mining Company, Inc. (''Sunny Ridge") violated 30 C.F.R. § 77.405(bJ when miners allegedly

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
2

Section 77.405(b) provides:
No work shall be performed under machinery or equipment that
has been raised until such machinery or equipment has been
securely blocked in position.

254

worked under the unsecured, raised bed of a coal truck, and 30 C.F.R. § 77.1001 3 on three
separate occasions when loose and unconsolidated rnate~al on spoil banks and highwalls
allegedly had not been stripped for a safe distance or otherwise s~bilized; whether civil penalties
should be assessed against Sunny Ridge mine foreman Tracy Damron for his alleged knowing
authorization of all four violations; and whether civil penalties should be assessed against Sunny
Ridge president Mitch Potter for his alleged knowing authorization of two of the violations of
section 77.1001. Commission Administrative Law Judge William Fauver found that Sunny
Ridge violated the standards, that the violations were significant and substantial ("S&S"},4 and
that civil penalties should be assessed against Damron and Potter for knowing authorization of
the violations. 17 FMSHRC 648, 653-59 {April 1995) (ALJ). We granted a joint petition for
discretionary review filed by Sunny Ridge, Damron, and Potter challenging these determinations.
For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand.
I.

Citation No. 4020202
A.

Factual and Procedural Backiround

Sunny Ridge operates the No. 9 Mine, a surface coal mine in eastern Kentucky. Tr. 192.
On August 5, 1992, while inspecting the mine, Beverly "Butch" Cure, an inspector with the
Department of Labor's Mine Safety and Health Administration ("MSHA"}, noticed a
fully-loaded coal truck parked outside the mine truck shop. 17 FMSHRC at 652; Tr. 14. Cure
could see a group of men standing near the truck with their foreman, Tracy Damron.
17 FMSHRC at 652. Sometime later, from a distance, Inspector Cure saw that the bed of the
truck, which held approximately 30 tons of coal, was raised. ld. at 652-53. Upon closer
inspection, he discovered that the rear edge of the raised bed was resting on a stack of cribs,
which had the effect of raising the left rear wheel slightly off the ground. ld. at 650. No chocks
or blocks were present other than the cribs on which the raised bed rested. Jd. Miners had been

3

Section 77.1 001 provides:
Loose hazardous material shall be stripped for a safe distance from
the top of pit or highwalls, and the loose unconsolidated material
shall be sloped to the angle of repose, or barriers, baffle boards,
screens, or other devices be provided that 8fford equivalent
protection.

4

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C.
§ 814(d), and refers to more serious violations.

255

working on the tire. and Cure saw someone handling the lug nuts of the raised wheel.5 ld. at 653.
Soon after Cure approached the truck, the miners lowered the bed and Damron unsuccessfully
attempted to use a 20-ton jack to raise the wheel. Id.
Based on his observations, Inspector Cure issued a section 104(d)(1) citation alleging an
S&S and unwarrantable violation of section 77 .405(b) for working under unsecured, raised
equipment. /d. at 651; Gov't Ex. 3. The Secretary proposed a civil penalty of $3,000 for the
alleged violation. Sunny Ridge challenged the proposed assessment.
Following an evidentiary hearing, the judge concluded that Sunny Ridge violated section
77.405(b). 17 FMSHRC at 652-53. The judge reasoned that miners working on the tire were
"'under ... machinery or equipment' within the meaning of the regulation because the wheel ...
was under the elevated truck bed and truck frame." ld. at 653. The judge also determined that
the violation was S&S because he found it "reasonably likely" that a serious injury would occur
if the work "continued in normal mining operations." Jd. at 653-54. The judge found that if the
raised bed had fallen, a miner could have been injured by the wheel if it was jarred loose, or by
the truck frame. /d. at 653. The judge concluded that the violation was unwarrantable because
the truck bed was not designed to lift a wheel and Sunny Ridge deliberately failed to use what the
judge considered the safer method of raising the truck with jacks. Id. at 654. The judge assessed
a civil penalty of$5,000.6 ld. at 655. In its petition for discretionary review, Sunny Ridge
challenges the judge's determination that it violated section 77.405(b) and that the violation was
S&S. Sunny Ridge does not dispute the judge's finding that the violation was unwarrantable or
his penalty assessment.
B.

Disposition

Sunny Ridge argues that substantial evidence does not support the judge's finding of a
violation, contending that the Secretary failed to prove that any miners actually worked under the
raised truck. S.R. Br. at 5-6. Sunny Ridge also argues that, because there was no reasonable
likelihood that the alleged violation would result in an injury, substantial evidence does not
support the judge's S&S determination. ld. at 6-8.
The Secretary argues that, as to the violation, the sole issue to be decided is whether any

5

The terms "tire" and "wheel" are used interchangeably by the parties and judge to refer
to the tire/wheel assembly on which miners were working, one of four wheels in a tandem set
attached to a hub by means of lug nuts and wedges. Tr. 64-65. The wheel that is the subject of
these proceedings was located on the outside of the rear pair of tandem wheels on the driver's
side of the truck; it weighed approximately 250 to 300 pounds, and was 48 inches tall andlO
inches wide. Tr. 36.
6

In his posthearing brief to the judge, the Secretary argued that his proposed penalty of
$3.000 should be doubled. S. Posthearing Br. at 31-32.

256

miners were working under raised equipment. S. Br. at 12-14. He argues that it would be
"impossible to change a tire by hand without getting under the vehicle to which it is attached."
!d. at 16-17 & n. 9. He also argues that the judge correctly construed section 77 .405(b) to include
a broad prohibition against working within a "sphere of danger" created by a piece of raised, .
unsecured equipment. ld. at 15 (quoting Tr. 71-72). The Secretary contends that "the judge
properly deferred to the Secretary's reasonable and safety-promoting interpretation of [section
77.405(b)]" as including such a sphere of danger. !d. at 15-16. Finally, arguing that it was
reasonably likely that, given the weight of the coal in the raised bed, the bed could fall and
seriously injure a miner, the Secretary asserts that the violation was S&S. ld. at 18-19.
1.

Violation

Commission Procedural Rule 69(a) requires that a Commission judge's decision "shall
include all findings of fact and conclusions of law, and the reasons or bases for them, on all the
material issues of fact, law or discretion presented by the record. . . ." 29 C.F.R. § 2700.69(a).
As the D.C. Circuit has emphasized~ "[p]erhaps the most essential purpose served by the
requirement of an articulated decision is the facilitation ofjudicial review." Harborlite Corp. v.
ICC, 613 F.2d 1088, 1092 (D.C. Cir. 1979). Without findings of fact and some justification for
the conclusions reached by a judge, we cannot perform our review function effectively.
Anaconda Co., 3 FMSHRC 299,299-300 (February 1981). We thus have held that a judge must
analyze and weigh all probative record evidence, make appropriate fmdings, and explain the
reasons for his decision. Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994).
We find that the judge's decision here haS "cross[ed] the line from the tolerably terse to the
intolerably mute." Anaconda, 3 FMSHRC at 302 (citations omitted).
At issue on review is whether the judge correctly concluded that work was performed
under the raised truck. The judge failed to make specific findings or credibility determinations
on this issue. Instead, he simply concluded, with no elaboration or citations to the record, that
work was performed under unblocked, raised equipment "because the wheel [the miner] was
working on was under the elevated truck bed and truck frame." 17 FMSHRC at 653. The
judge's failure to explain his conclusion in greater detail makes it impossible for us to determine
whether it is either legally correct or supported by substantial evidence.'

7

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

an

257

We are unable in the first instance to determine how the judge interpreted the prohibition
in section 77.405(b) against working "under" unblocked, raised machinery or equipment. During
the hearing. the judge opined that section 77.405(b) prohibits work within a "sphere of danger"
near unblocked, raised equipment. Tr. 71-72; see also S. Br. at 15 (adopting the judge's
interpretation). But nowhere in his decision does the judge state whether this was the
interpretation of the standard on which he based his finding of a violation.
To the extent the judge did read a "sphere of danger" into the requirements of section
77.405(b), he erred. This interpretation is at odds with the plain meaning of the standard. We
have long held that "[w]tiere the language of a statutory or regulatory provision is clear, the terms
of that provision must be enforced as they are written ...." Utah Power & Light Co., 11
FMSHRC 1926, 1930 (October 1989). The plain meaning of the term "under" as used in secti<?n
77.405(b) is "below or beneath something." Webster's Third New International Dictionary 2487
(1986). Nothing in the standard expressly or implicitly suggests that the Secretary intended the
term to mean anything other than work below or beneath 'raised, unblocked equipment. Nor does
anything in the regulation suggest that it reaches areas near or beside raised, unblocked
equipment. 8 Since the meaning of"under" in section 77.405(b) is clear and unambiguous, we
need not reach the Secretary's contention that his interpretation of the standard is entitled to
deference. Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) (deference is considered
"only when the plain meaning of the rule itself is doubtful or ambiguous") (emphasis in original).
Even if the judge based his decision on a finding that work was performed under
unblocked, raised equipment (rather than within a "sphere of danger"), we are unable to
determine the basis for the judge's conclusion that such a violation occurred. Nowhere in his
decision does he point to any evidence of a miner working under the raised truck. Nor does our
review of the record reveal any clear evidence of such conduct. Indeed, we cannot even
determine whether the relevant tire was actually under the elevated truck bed or truck frame.
Our review has been hampered because the record is incomplete. After the hearing, the
record exhibits were lost in the mail. 17 FMSHRC at 649. The parties were requested to furnish
the judge with replacement copies. !d. But the folder in which replacements were assembled
does not contain copies of any of Sunny Ridge's exhibits. The transcript reveals that when

an appellate tribunal must also consider anything in the record that "fairly detracts" from the
weight of the evidence that supports a challenged finding. Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951 ).
8

Cf 30 C .F .R. § 77 .413(c) (boiler blowoff valves must be "so located or protected that
persons passing by, near, or under them will not be scalded"); 30 C.F.R. § 77.807-3 (high-voltage
powerlines must be deenergized when any equipment passes "under or by" them); 30 C.F.R.
§ 77.1 006(a) (persons must not work "near or under dangerous highwalls or banks"). These
provisions demonstrate that, had the Secretary intended to give a broader reach to section
77.405(b). he could have easily employed the language to do so.

258

Sunny Ridge's counsel introduced the company' s exhibits at trial, he had only one copy of each.
Tr. 74, 176,258. We are concerned that the judge did not order Sunny Ridge's counsel to
provide the court, witnesses, and opposing counsel with copies of. the exhibits. Our concern is
heightened by the fact that among Sunny Ridge's exhibits were four pictures which depicted a
truck similar to the one cited. See Tr. 30, 61-62, 64, 67 (descriptions of Resp. Exs. 1, 2, 3, and
4). These pictures were the only evidence from which we could have determined the physical
appearance of the truck, there being no other detailed description of it in the record.
Compounding this problem is the fact that the judge failed to indicate whether he relied on these
lost exhibits. We are thus at a loss to determine the evidentiary basis of the judge's opinion.

.

Nor does the judge indicate whether he based his decision on a credibility determination.
On cross examination, Inspector Cure repeatedly offered his opinion that a miner would have had
to get under the truck to work on the tire. Tr. 28-33. But he never actually observed anyone
under the truck. Tr. 29, 32. Moreover, a Sunny Ridge witness testified that "[t]here would be no
need, no reason for anyone to get under raised equipment to change a tire." Tr. 60. The judge
made no effort to resolve this conflicting testimony. In the absence of such fmdings, we cannot
effectively review the judge's decision.
Accordingly, we vacate the judge's fmding of a violation and remand the matter to him so
he can "analyze and weigh the relevant testimony of record, make appropriate findings, and
explain the reasons for his decision." Mid-Continent, 16 FMSHRC at 1222. If the judge relied
on the lost exhibits in finding a violation, we direct him to reopen the proceedings for the limited
purpose of obtaining replacement exhibits.

2.

~

In light of our determination to vacate the judge's finding of violation, we also vacate the
judge's accompanying conclusion that the violation was S&S. Because the judge will have to
revisit the S&S question in tJ;e event he determines on remand that Sunny Ridge violated section
77.405(b), we offer the following observations on his S&S determination.
A violation is S&S if, based on the particular facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Div., Nat 'l Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1_(January 1984), we further expl~ed:
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
~andatory 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

259

will be of a reasonably serious nature.
Jd. at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135-36
(7th Cir. 1995) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury
should be made assuming continued normal mining operations. U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (August 1985).

Here, the judge summarily concluded that the violation was S&S because "it was
reasonabl [y] likely to result in serious injury if [such a] practice of shortcutting safety devices
continued in normal mining operations." 17 FMSHRC at 653-54. The judge predicated his
find ing of a potential hazard on the truck bed falling. !d. at 653. But evidence was presented at
the hearing that cast some doubt on the ''reasonable likelihood" of the truck bed falling, Mathies,
6 FMSHRC at 3-4, evidence the judge failed to analyze and weigh. Potter testified that the truck
was equipped with a check valve that would have prevented the truck bed from falling suddenly,
even in the event of an "unusual" accident. Tr. 69-70, 84-85. The judge also found that "[i]f the
truck bed fell the wheel may have been jarred loose and fallen on [a miner]." 17 FMSHRC at
653. But Potter testified that the tire could not have been dislodged by a fall ofthe bed because
the inside tire would have caught the weight of the fall and because such tires can be
intentionally dislodged only with some difficulty . Tr. 64-65, 70. The judge considered the use of
jacks a safer and preferable method of changing a coal truck tire. 17 FMSHRC at 654. But this
ignored Potter's testimony that cribs are safer to use than jacks because cribs are "more capable
of taking the weight than a jack." Tr. 64.
We find unacceptably terse the judge's conclusion that the violation was S&S. The judge
failed to consider and weigh all of the relevant evidence on the S&S issue. If the judge considers
the S&S question on remand, he must provide a full explanation of his decision. Mid-Continent,
16 FMSHRC at 1222.

II.
Order No. 402021 0
A.

Factual and Procedural Back~round

On August 18, 1992, during the course of a regular inspection of Sunny Ridge' s No. 9
Mine. Inspector Cure observed loose and unconsolidated spoil material on the spoil side of the
No. 312 Pit. 17 FMSHRC at 655 ~ Tr. 120. The spoil material, consisting of blasted rocks of
various sizes, formed a vertical highwall approximately 25 feet high and 200 feet long. 17
FMSHRC at 655; Tr. 122, 138. Inspector Cure observed four pieces of equipment operating
below the spoil bank. 17 FMSHRC at 655. Based on his observations, Inspector Cure issued a
section 104(d)(l ) order alleging an S&S and unwarrantable violation of30 C.F.R. § 77.1001.
ld. at 65 1, 655~ Gov't Ex. 5. The Secretary proP.osed a civil assessment of$4,600, which Sunny
Ridge challenged.

260

Foil owing the hearing~ the judge concluded that Sunny Ridge violated section 77.1001.
17 FMSHRC at 659. -He noted that the inspector observed loose and unconsolidated material
consisting of rocks and boulders on the spoil side of the highwall in the No.3~ pit. ld. at 655.
The spoil bank was approximately 25 feet high and 200 feet long. ld. Noting that the loose
material "presented a hazard to the drivers of four pieces of equipment operating below the spoil
bank," the judge found the cited conditions S&S because "there was a reasonable likelihood that
the loose material on the spoil bank would slough or roll off striking equipment or miners and
causing serious injuries." ld. at 655-56. He also found that, because foreman Damron's
"disregard of the hazards ... was serious and shows aggravated conduct beyond ordinary
negligence," the violation was unwarrantable. ld. at 656. The judge assessed a civil penalty of
$8,000. 9 Jd. We subsequently granted Sunny Ridge's petition for discretionary review
challenging the judge's determination that it violated section 77.1001 and that the violation was
S&S, as well as his penalty assessment. Sunny Ridge does not challenge the judge's finding of
unwarrantable failure.
B.

Disposition

Relying on the testimony of its witnesses, Sunny Ridge argues that no hazardous
materials were present on the spoil bank and that, therefore, the judge' s finding of a violation is
not supported by substantial evidence. S.R. Br. at 9. Sunny Ridge also argues that any violation
that might have occurred was not S&S because there was very little likelihood of any serious
injuries. ld. at 9-11. In addition, Sunny Ridge asserts that the judge' s penalty assessment is
inappropriate. Jd. at 11. The Secretary does not address whether Sunny Ridge violated section
77.1001, arguing only that the judge's finding of S&S is supported by substantial evidence. S.
Br. at 23-25. In support of his argument, the Secretary cites Inspector Cure's observation of
miners working in close proximity to a vertical high wall consisting entirely of loose and
unconsolidated spoil material, ongoing blasting at the mine that could have led to failure of the ·
highwall, and the inspector's knowledge of other highwall failures. ld. The Secretary does not
address the propriety of the penalty assessed by the judge.
1.

Violation

Section 77.1 001 requires operators to strip loose, hazardous material for a safe distance
from the top of pits or highwalls. There is no dispute that loose material was present on the top
and face of the highwall. 17 FMSHRC at 655. Cure testified that ''the whole spoil pile itself was
loose material" and that the highwall it formed was vertical. Tr. 137-38. Although Sunny
Ridge' s witnesses testifit:d that the spoil material posed no hazard (Tr. 156, 193, 196), th~ judge
implicitly credited Cure's testimony that the material was hazardous and threatened miners
working underneath it, in part because both blasting and rain could have compromised its
stability (Tr. 146, 150-51 ). 17 FMSHRC at 655.

9

In his posthearing brief to the judge, the Secretary argued that his proposed penalty of
$4,600 shoul~ be doubled. S. Posthearing Br. at 31-32.

261

On review. Sunny Ridge seeks to have its witnesses credited over the Secretary's
witnesses. S.R. Br.. at 9. Only under exceptional circumstances do we overturn findings based
on credibility resolutions. In re: Contents of Respirable Dust Sample Alteration Citatjons, 17
FMSHRC 1819, 1878-81 & n.80 (November 1995) ("Dust Cases''). We find no such
circumstances in this case. We conclude that substantial evidence supports the judge's finding
that Sunny Ridge violated section 77.1001, and we therefore affinn his detennination.

2.

S&.S.

We find unpersua·sive Sunny Ridge's argument that the Secretary failed to prove the third
Mathies element because there was very little likelihood of an injury. S.R. Br. at 9-11. As noted
above, Cure testified that both blasting and rain could have compromised the stability of the spoil
material. Tr. 146, 150-51 ; see also Tr. 169-70 (testimony of Hobart Potter that rain could
adversely affect spoil bank ~s stability). Sunny Ridge's expert, Edward Brown, also testified that
"the higher you stack the spoil, the less the angle [of the material] can be simply because it will
slide." Tr. 174. There is no dispute that the spoil material was vertical and that miners worked
near the spoil banlc Tr. 123, 138, 157. We thus find that substantial evidence supports the
judge's S&S finding and, accordingly, we affirm the judge's detennination.
3.

Penalty

In support of his assessment of a penalty of $8,000 agairurt Sunny Ridge for this violation,
the judge stated that he had considered all of the criteria for civil penalties under section 11 O(i) of
the Mine Act, 30 U.S.C. § S20(i). 10 17 FMSHRC at 656. He did not make separate findings of
fact that he tied directly to any of the criteria. However, the judge made findings on several of
the criteria elsewhere in his decision. Regarding the operator' s history of violations, the judge
found that Sunny Ridge '·had been cited for a violation of the same standard on the same
highwallless than two weeks before [the instant] violation." ld. Regarding the operator's
negligence, the judge found that the conduct of Tracy Damron, Sunny Ridge's foreman, was

10

Section 1 1O(i) provides in pertinent part:
The Commission shall have authority to aiisess all civil
penalties provided in this [Act]. In assessing civil monetary
penalties, the Commission shall consider the operator' s history of
previous violations, the appropriateness of such penalty to the size
of the business of the operator charged, whether the operator was
negligent. the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid
compliance after notification of a violation. ·

262

"aggravated ... beyond •>rdinary negligence."11 Jd. Regarding the gravity ofthe violation, the
judge in effect found it to be serious insofar as he found that it could have caused "serious
injuries." !d. We can enter findings on the remaining criteria based on record evidence. See
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1153 (7th Cir. 1984) ("the Commission's
entering of undisputed record information as findings [is] proper under the [Mine] Act").
Regarding the appropriateness of the penalty to the operator's size and the effect of the penalty ·
on the operator's business, the parties stipulated, and we fmd that Sunny Ridge "is a
medium-sized operator" and that its ability to continue in business would not be affected by a
reasonable penalty. Joint Ex. 1 at~~ 4-5. Finally, regarding whether Sunny Ridge "demonstrated
good faith ... in attempting to achieve rapid compliance after notification of [the] violation," 30
U.S.C. § 820(i), the record merely indicates that the violation was abated approximately 4 hours
after the order was issued when Sunny Ridge "removed the height of the spoil material." Tr.
132; Gov't Ex. 5. Accordingly, we find that Sunny Ridge demonstrated neither good faith nor
bad faith in abating the violation.
The question remains whether, in light of the above findings, the penalty assessed by the
judge is excessive. The determination of the amount of the penalty that should be assessed for a
particular violation is an exercise of discretion by the trier of fact, discretion bounded by proper
consideration of the statutory criteria and the deterrent purposes underlying the Act's penalty
assessment scheme. Sellersburg Stone Co., 5 FMSHRC 287, 294 (March 1983), a.ff'd, 736 F.2d
1147 (7th Cir. 1984). 12 Although the penalty assessed by the judge exceeds that originally
proposed by the Secretary before the hearing, based on the facts developed in the adjudicative
record, we cannot say that the penalty is.inconsistent with the statutory criteria or the Act's
deterrent purposes. 13 We thus find that the judge's penalty assessment did not constitute an

11

As Sunny Ridge's agent, Damron's conduct may be imputed to the operator.
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991) ("R&P").
12

Commissioner Marks further notes that his dissenting colleague also cites Sellersburg
in support of his determination to remand this and the following two violations cited under
section 77 .I 001. See Slip op. at 23-25. However, in Sellersburg, the court concluded that "[t]he
Commission must remand a case to the ALJ only if it 'determines that further evidence is
necessary on an issue of fact.' [30 U.S.C. .§ 823(d)(2)(C).] Given the Commission's conclusion
that uncontroverted evidence did not warrant further factual findings, such a remand was not
required ...." 736 F.2d at 1153. For the same reason, Commissioner Marks believes that
remand in the instant case is unnecessary.
13

Litigants in many types of actions often risk increased liability when they opt to litigate
rather than settle a claim, because they are faced with an independent assessment of their liability
by the judge. Contrary to our colleague, we find no basis for concluding that the increase in this
case was levied in retaliation against the operator for exercising its rights under the Act.
Even if, as our colleague suspects, the judge's assessment was influenced by the

263

abuse of discretion.

III.
Order No. 4020075
A.

Factual and Procedural Back~round

On January 27, 1993, as MSHA Inspector Billy Darnron.was conducting a regular
inspection of Sunny Ridge's No. 9 Mine, he observed loose, hazardous, and unconsolidated
material that had not been stripped from the highwall and spoil side of the No. 2 Pit. 17
FMSHRC at 656; Tr. 218. The highwall was approximately 65 feet high. 17 FMSHRC at
656-57. Inspector Damron observed one piece of equipment operating beneath the highwall. !d.
at 657. Based on his observations, Inspector Damron issued Order No. 4020075 under section
104(d)(2) ofthe Mine Act, alleging an S&S and unwarrantable violation of section 77.1001. ld.
at 656; Gov't Ex. 8. The Secretary subsequently proposed a penalty of$7,500 against Sunny
Ridge. Sunny Ridge challenged the Secretary's proposed assessment.
After the hearing, the judge concluded that Sunny Ridge violated section 77.1001. 17
FMSHRC at 659. He noted that the inspector "observed loose and unconsolidated material in the
form of blasted rock, dirt and trees on the highwall and spoil bank," and that the highwall was
about 65 feet high. ld. at 656-57. The judge stated that Sunny Ridge had recently been charged
with several violations of section 77.1001 , that Tracy Dainron had been foreman in charge at the
time these prior violations had been issued and when the instant order was issued, that Tracy
Damron's disregard of the cited hazards constituted aggravated conduct beyond ordinary
negligence, and that the violation was-therefore unwarrantable. Jd. at 657. The judge also stated:
"The violation was reasonably likely to result in serious injury, and therefore was significant and

Secretary' s posthearing argument to double the penalties originally proposed, that does not make
the penalty defective. In support of his argument, the Secretary indicated that the "[t]estimony at
trial [of] Tracy Damron and Mitch Potter . .. demonstrates an indifference on the part of mine
management to the health and safety of its employees." S. Posthearing Br. at 31-32. The
Secretary also claimed that respondents' lack of good faith was demonstrated at the hearing when
photographs of the site, offered by respondent as proof of a lack of violation, were "obviously
taken after corrective measures to the cited violations had.already been instituted." Jd. at 32.
Surprisingly, the Secretary's request to double the penalties is described by our dissenting
colleague as "punitive," "questionable," and "retaliatory." Slip. op. at 23, 25. We do not agree.
The Secretary has the obligation to vigorously prosecute violations and the duty to function as an
advocate by marshaling relevant, legitimate arguments in support of penalties he deems
appropriate. Consequently, it is certainly reasonable for the Secretary to adjust a proposed
penalty based on information developed at the hearing.

264

substantial." !d. The judge assessed a $10,000 civil penalty against Sunny R.idge.14 ld. We
subsequently granted Sunny Ridge's petition for discretionary review challenging the judge's
determination that it violated section 77.1001 and his penalty assessment. Sunny Ridge does not
challenge the judge's fmdings of S&S and unwarrantable failure.
B.

Disposition

Sunny Ridge argues that the judge's determination that the company violated section
77.1 001 is not supported by substantial evidence because Inspector Damron did not thoroughly
inspect the material he cited. S.R. Br. ~t 12-13. Sunny Ridge also argues that the judge should
have credited the testimony of its dozer operator, Charles Clevenger, that he tested the stability of
the cited highwall before the order was issued and found no problems. !d. Sunny Ridge also
maintains that the judge's penalty assessment is not appropriate. !d. at 13. The Secretary argues
that the record contains extensive evidence of hazardous material present on the cited highwalls,
and that the judge's finding of violation is thus supported by substantial evidence. S. Br. at
28-30. The Secretary does not address the propriety of the penalty assessed by the judge.
We find that substantial evidence supports the judge's determination that Sunny Ridge
violated section 77 .I 00 I by failing to strip loose, hazardous material from the top of a highwall
and spoil bank in Pit No. 2. There is no dispute that loose material was present on the highwall
and spoil bank. 17 FMSHRC at 656-67. The judge implicitly rejected the testimony of Sunny
Ridge's witnesses that the cited area was safe (see Tr. 251-54, 261), and credited Inspector
Damron's testimony that the material wa5 hazardous because it "had just been pushed over and
was laying on [the] high wall," including a large fallen tree, and that the material was highly
susceptible to failure because of continual blasting in the are~ and frequent freezes and thaws that
could have further loosened it (Tr. 223-26). We find no circumstances that would warrant
following Sunny Ridge's implicit suggestion that we overturn the judge's credibility
determinations. Dust Cases, 17 FMSHRC at 1878-81& n.80. Accordingly, we affirm the
judge's determination that Sunny Ridge violated section 77.1001.
As with the previous order, although the judge did not make any separate fmdings of fact
that he tied directly to any of the statutory penalty criteria in support of his penalty assessment,
findings on each of the criteria either were made by the judge elsewhere in his decision or can be
entered by the Commission based on record evidence. See Sellersburg, 736 F.2d at 1153. The
judge found that Sunny Ridge "had been issued 17 charges ofviolations of the same standard
within about six months, and had been issued two charges for violating the same standard during
the last inspection." 17 FMSHRC at 657. The judge also found that "Foreman Damron's
disregard of hazardous, loose materials on the high wall and spoil bank shows aggravated conduct
beyond ordinary negligence," id., conduct that may be imputed to Sunny Ridge. R&P, 13
FMSHRC at 194. Regarding the gravity of the violation, the judge found that it could have
14

In his posthearing brief, the Secretary argued that his original proposed penalty of
$7,500 should.be doubled. S. Posthearing Br. at 31 -32:
·

265

caused serious injuries. 17 FMSHRC at 657. Pursuant to the parties' stipulation, we find that
Sunny Ridge "is a medium-sized operator" and that its ability to continue in business would not
be affected by a reasonable penalty. Joint Ex. 1 at,, 4-5. Regarding abatement, the record
merely indicates that Sunny Ridge abated the violation when it bermed off the cited area Tr.
229. Accordingly, we find that Sunny Ridge demonstrated neither good faith nor bad faith in
abating the violation.
Based on our review of the adjudicative record, we cannot say that the penalty is
inconsistent with the statutory criteria or the Mine Act's deterrent purposes. We thus find that
the judge's penalty assessment did not constitute an abuse of discretion.
IV.
Order No. 4020076
A.

Factual and Procedural Back~round

On January 27, 1993, after issuing Order No. 4020075, Inspector Damron observed loose,
hazardous material on the face and top of a highwall and on the spoil side in the No. 1 Pit. 17
FMSHRC at 657. The highwall was approximately 90 to 100 feet high. ld. at 657-58. Several
pieces of equipment were operating under the highwall, and footprints indicated individuals had
worked or traveled under the spoil bank. Id. Although Inspector Damron allowed work to
continue in the center of the pit to allow Sunny Ridge to remove a quantity of coal that had
already been mined (Tr. 289-90), he issued Order No. 4020076 under section 104(d)(2), alleging
an S&S and unwarrantable violation of section 77.1001 based on his observations of conditions
elsewhere in the pit. 17 FMSHRC at 657; Gov't Ex. 11 . ·The Secretary subsequently proposed a
civil penalty of $9,200 against Sunny Ridge, which the company challenged.
After the hearing, the judge concluded that Sunny Ridge violated section 77.1001. 17
FMSHRC at 659. He noted that Inspector Billy Damron "observed loose, hazardous material in
the form ofrocks and boulders on the face and top of [the] highwall," which was 90 to 100 feet
high . ld. at 657. The judge also noted the hazardous conditions Inspector Damron observed on
the spoil bank, which wa~ approximately 60 feet high. /d. at 658. Finally, the judge took note of
Inspector Damron's observations of work being performed under the highwall and spoil banlc
/d.
The judge stated that Sunny Ridge had recently been charged with violating section
77.1 001 , that Tracy Damron had been foreman in charge at the time these prior violations had
been issued and when the instant order was issued, that Tracy Damron' s disregard of the cited
hazards constituted aggravated conduct beyond ordinary negligence, and that the violation was
therefore unwarrantable. /d. at 658. The judge also stated: "The violation was reasonably likely
to result in serious injury, and therefore was significant and substantial." /d. The judge assessed

266

a $10,000 civil penalty against Sunny Ridge.15 Jd. We subsequently granted Sunny Ridge's
petition for discretionary review challenging the judge' s determination that it violated section
77.1 001 and that the violation was S&S, as well as his penalty assessment. Sunny Ridge does
not challenge the judge' s finding of unwarrantable failure.
B.

Disposition

Sunny Ridge argues that the judge' s determination that it violated section 77.1001 is not
supported by substantial evidence. S.R. Br. at 14-15. The company maintains that the judge's
finding of S&S is inconsistent with Inspector Damron allowing mining to continue in the pit. !d.
at 15-16. · Sunny Ridge also argues that the judge' s assessment of penalty is not supported by
substantial evidence. !d. at 16. The Secretary argues that the record contains extensive evidence
of hazardous material present on the cited highwalls, and that the judge' s finding of a violation is
thus supported by substantial evidence. S. Br. at 31-32. The Secretary contends that substantial
evidence also supports the judge's finding that the violation was S&S, and that Inspector
Damron' s permitting some mining to continue in the pit is irrelevant because the area where
mining continued was outside the area covered by the order. ld. at 33-34. The Secretary does
not address the propriety of the penalty assessed by the judge.
1.

Violation

We find that substantial evidence supports the judge' s fmding that Sunny Ridge violated
section 77.1001 by failing to strip loose, hazardous material from the top of a highwall and spoil
bank in Pit No. 1. The jlldge credited Inspector Damron' s testimony that both the highwall and
spoil bank contained loose, hazardous material. 17 FMSHRC at 657-58. Inspector Damron
testified that "loose rock and boulders were present in the face [and] top of the high wall," and
that the near-vertical spoil bank also "contained loose rock and dirt." Tr. 274, 284. The judge
implicitly rejected the testimony of Sunny Ridge' s witnesses that no loose, hazardous material
was present. See Tr. 331 , 336-37. No circumstances warrant overturning the judge's credibility
determinations. Dust Cases, 17 FMSHRC at 1878-81& n.80. Accordingly, we affirm the
judge's finding of a violation.

2.

~

In what is essentially an estoppel argument, Sunny Ridge contends that the Secretary
failed to prove the third Mathies element because, had there been any likelihood of a serious
injury, Inspector Damron "would not have permitted continued mining for the remainder of the
day underneath the highwall or spoil bank. ... " S.R. Br. at 16. Equitable estoppel, however,
generally does not operate against the Secretary. King Knob Coal Co., 3 FMSHRC 1417,

15

In his posthearing brief, the Secretary argued that his original proposed penalty of
$9,200 should be doubled. S. Posthearing Br. at 31-33.

267

1421-22 (June 1981). 16
In any event, Inspector Damron testified that both blasting and the freeze/thaw cycle had
compromised the stability of the loose material, and that, since material could have been
dislodged, a serious injury was "very highly likely." Tr. 286-87. Based on this testimony, we
find that the judge's detennination that the violation was S&S is supported by substantial ·
evidence. Accordingly, we affinn the judge's S&S detennination.
3.

Penalty

As with the previous two orders, although the judge did not make any separate findings of
fact that he tied directly to any of the statutory penalty criteria in support of his penalty
assessment, findings on each of the criteria either were made by the judge elsewhere in his
decision or can be entered by the Commission based on record evidence. See Sellersburg, 736
F.2d at 1153. The judge feund that Sunny Ridge "had been issued two charges of violating the
same standard in the pre· ·ious inspection," and that "Foreman Damron's disregard of the hazards
discovered by the inspector shows aggravated conduct beyond ordinary negligence." 17
FMSHRC at 658; see R&P, 13 FMSHRC at 194 (Damron's conduct may be imputed to Sunny Ridge). The judge also found that the violative condition could have caused serious injuries. 17
FMSHRC at 658. Pursuant to the parties' stipulation, we find that Sunny Ridge "is a
medium-sized operator" and that its ability to continue in business would not be affected by a
reasonable penalty. Joint Ex. 1 at 'i['i[ 4-5. Regarding abatement, Sunny Ridge's witnesses
testified that mining continued in the pit, including under the highwall, after Inspector Damron
pointed out the violation to company personnel. Tr. 336-37, 348; see also Tr. 369 (Inspector
Damron's testimony that it was not his intention to allow mining to continue under the highwall).
We thus find that, although the violation was abated when Sunny Ridge benned off the cited area
(Tr. 292), the company demonstrated bad faith by continuing to mine in areas of the pit where
Inspector Damron had pointed out hazardous, violative conditions.
Based on our review of the adjudicative record, we cannot say that the judge' s penalty
assessment is inconsistent with the statutory criteria or the Mine Act's deterrent purposes. We
thus find that the judge did not abuse his discretion in assessing the penalty.

16

Moreover, Sunny Ridge' s argument rests on the-mistaken assumption that Inspector
Damron allowed mining to proceed underneath the highwall and spoil bank. In fact, Inspector
Damron only allowed Sunny Ridge to remove some coal from the pit that had already been
mined and that was stockpiled in an area not affected by his order. Tr. 289-90, 365, 369.

268

v.
Tracy Damron's Liability Under Sectio!l-11 O(c)
A.

Factual and Procedural Background

The Secretary charged Tracy Damron with knowingly authorizing, ordering, or carrying
out the alleged violations described in Citation No. 4020202 and Order Nos. 4020210,4020075,
and 4020076. The Secretary subsequently proposed penalties totaling $15,000 against Damron,
which Damron challenged.
After the hearing, the judge found that Damron was liable under section 11 0(c) for the
four violations. With respect to Citation No. 4020202 (working under unblocked equipment),
the judge found that Damron attempted "to cover up his method of changing a tire" based on
testimony that when Cure "approached the truck, some men scattered and [Damron] quickly had
the truck bed and wheel lowered. He then got a 20-ton jack and attempted unsuccessfully to raise
the rear wheel." 17 FMSHRC at 655. The judge regarded this·as "strong evidence of
[Damron's] knowledge of a violation." !d. The judge assessed a civil penalty of $2,500 against
Damron. ld.
With respect to Order Nos. 4020210, 4020075, and 4020076 (highwall violations), the
judge found that Damron was aware of hazardous highwall conditions because, in each case, he
conducted daily examinations of the affected areas. Jd. at 656, 657, 658. The judge concluded
that Damron' s disregard of the hazards on each occasion amounted to "aggravated conduct
beyond ordinary negligence." ld. The judge also noted that Sunny Ridge had repeatedly been
cited for similar violations, and that Damron was the company' s representative up~n whom the
previous citations had been served. ld. T)le judge assessed civil penalties against Damron of
$3,000 for Order No. 4020210, $4,000 for Order No. 4020075, and $4,000 for Order No.
4020076. ld. We subsequently granted Damron's petition for discretionary review challenging
the judge's findings of liability and penalty assessments.
B.

Disposition

Relying on the arguments advanced elsewhere in petitioners' joint brief, Damron argues
that the judge's findings of liability under section 11 0(c) are not supported by substantial
evidence. S.R. Br. at 17, 19. Citing his subjective beliefs that using cribbing to change a coal
tire was safe and that all of the cited highwalls were sound, Damron argues that his conduct was
not "knowing." ld. at 17-19. Damron also argues that none of the penalties assessed against
him by the judge are appropriate or supported by substantial evidence. /d. at 11, 13, 16-19.
The Secretary responds that with respect to each of the section 11 0(c) charges brought
against Damron, substantial evidence supports the judge's conclusions that Damron is liable. K
Br. at 20-23,26-28,30-31,34-35. The Secretary argues that section 110(c), rather than imposing

269

a subjective standard, requires agents of operators to act in an objectively reasonable manner. ld.
at 22. The Secretary contends that, with respect to each of the four charges brought against him,
Damron failed to meet this standard of care. Regarding Citation No. 4020202, the Secretary
asserts that Damron "was actively involved in the violative tire-changing operation, which openly
and obviously involved a failure to block securely the raised equipment." ld. at 22-23.
Regarding the three high wall violations, the Secretary argues that Damron was fully aware of the
cited conditions, having inspected the cited areas on the morning of each day an order was
issued. Id. at 26-28, 30, 34-35. With respect to Order Nos. 4020075 and 4020076, the Secretary
maintains that Damron admitted that conditions were hazardous. Jd. at 30, 35. The Secretary
does not address the propriety of the penalties assessed by the judge.
1.

Violation of Section 77.405(b)

Because we are vacating and remanding to the judge the issue of whether Sunny Ridge
violated section 77 .405(b), we vacate the judge's determination that Damron is liable under
section 11 0(c) for this citation, and remand for further proceedings consistent with our remand of
the underlying citation.
2.

Violations of Section 77 .I 001

Section 11 0(c) provides that, whenever a corporate operator violates a safety or health
standard, an agent of the corporate operator who "knowingly authorized, ordered, or carried out
such violation" shall be subject to an individual civil penalty under the Mine Act. 30 U.S.C. ·
§ 820(c). 17 The proper legal inquiry for purposes of determining liability under section llO(c) is
whether the corporate agent "knew or had reason to know" of a violative condition. Kenny
Richardson, 3 FMSHRC 8, 16 (January 198I), aff'd on other grounds, 689 F.2d 632 (6th Cir.
1982), cert. denied, 461 U.S. 928 (I983). To establish a knowing violation, the Secretary "must
prove only that an individual knowingly acted, not that the individual knowingly violated the
law." Warren Steen Constr., Inc., I4 FMSHRC 1I25, I1.31 (July 1992) (citing United States v.
International Minerals & Chem. Corp., 402 U.S. 558, 563 (1971 )).

17

Section II 0(c) states:
Whenever a corporate operator violates a mandatory health
or safety standard or knowingly violates or fails or refuses to
comply with any order issued under this [Act] or any order
incorporated in a final decision issued under this [Act], except an
order incorporated in a decision issued under subsection (a) of this
section or section [I05(c)] ... , any director, officer, or agent of
such corporation who knowingly authorized, ordered, or carried
out such violation, failure, or refusal 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.

270

We have already found that substantial evidence supports the judge's conclusion that
Sunny Ridge violated section 77.1001 on the three occasions in question. There is no dispute
that Damron was Sunny Ridge's agent when each of the violations occurred. Damron ·w as fully
aware of each of the violative conditions since he inspected the cited areas each day the orders
were issued. Tr. 124, 228, 290. With respect to Order Nos. 4020075 and 4020076, Damron
admitted that the cited areas needed some corrective measures. Tr. 229, 291. In light oftliese
facts, we fmd that substantial evidence supports the judge's conclusion that Damron is liable
under section 11 0(c) for each of the highwall violations.
In assessing penalties against ~amron, however, the judge failed to make all of the
requisite findings under section 11 O(i) of the Mine Act. The judge made findings on Damron's
negligence and the gravity ofthe alleged violations. 17 FMSHRC at 656, 657,658. Regarding
whether the violations were abated in good faith, evidence appears in the record from which the
Coinmission could enter findings. Tr. 132, 229, 292; Gov't Exs. 5, 8, II. But with respect to the
three criteria of history of previous violations, appropriateness of the penalty based on "size," and
effect of the penalty on ability to "continue in business," no evidence appears in the record, as to
Damron as an individual, on which any findings could be entered either by the judge or by the
Commission on review. The only record evidence on these factors relates to Sunny Ridge as an
operator.
Section 11 O(i) of the Mine·Act states that "the Commission shall consider the operator's
history of previous violations, the appropriateness of such penalty to the size of the business of
the operator charged, whether the operaior was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a violation." 30 U .S.C.
§ 820(i) (emphasis added). Although section llO(c) subjects individuals to "the same civil
penalties, fines, and imprisonment that may be imposed upon" a mi~e operator, no separate
penalty factors applying only to individuals appear in the Act. Yet, from the plain language of
section 11 O(i), it would oppear that Congress did not have individuals in_mind when it fashioned
the penalty criteria set forth in that provision.
The penalty criteria, as well as section llO(c), were carried over with no significant
changes from section 109 of the Federal Coal Mine Health and Safety Act of 1969,30 U.S.C.
§ 801 et seq. (1976) (amended 1977) ("Coal Act"). The legislative history of these sections
provides little guidance of Congressional intent regarding how the penalty criteria be applied to
individuals. The drafters of the Coal Act did, however, indicate a recognition that the criteria for
penalties assessed against agents be independent of the operator criteria:

It was ultimately decided to let the agent stand on his own and be
personally responsible for any penalties or punishment meted out
to him. . . . The committee does not, however, intend that the
agent should bear the brunt of corporate violations.

271

H.R. Rep. No. 563, 91st ':::ong., 1st Sess. 11-12 (1969), reprinted in Senate Subcommittee on
Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History
ofthe Federal Coal Mine Health and Safety Act of 1969, at 104 f-42 (1975). We view this as
evidence that Congress did not intend the penalty criteria to be applied to individuals in the same
fashion they are applied to operators. Such an approach would be unfair because it would tie the
individual's liability to the operator's conduct and financial resources, and would not allow "the
agent [to] stand on his own." !d. It could also result in inordinately high penalties being
assessed against individuals, which would clearly be contrary to Congress's intention that agents
not "bear the brunt of corporate violations." !d.
The Supreme Court has held that, in interpreting a single enactment, courts should give
the statute "the most harmonious, comprehensive meaning possible." Weinberger v. Hynson,
Westcott and Dunning, Inc.., 412 U.S. 609,631-32 (1973). Interpreting sections 110(c) and
11 O(i) harmoniously , we hold that, in keeping with our prior holding that "findings of fact on the
statutory penalty criteria must be made," Sellersburg, 5 FMSHRC at 292 (emphasis added),
Commission judges must make findings on each of the criteria as they apply to individuals. The
criteria regarding the effect and appropriateness of a penalty can be applied to individuals by
analogy, and we find that such an approach is in keeping with the deterrent purposes of penalties
assessed under the Mine Act. In making such findings, judges should thus consider such facts as
an individual 's income and family support obligations, the appropriateness of a penalty in light of
the individual 's job responsibilities, and an individual's ability to pay. Similarly, judges should
make findings on an individual's history of violations and negligence, based on evidence in the
record on these criteria. Findings on the gravity of a violation and whether it was abated in good
faith can be made on the same record evidence that is used in assessing an operator's penalty for
the violation underlying the section II 0(c) liability.
Because the judge did not make any findings on Damron's history of previous violations,
or on the appropriateness and effect of the penalties assessed against him, and given the lack of
record evidence on which we could enter any findings on these criteria, we remand this matter to
the judge so that he can make separate findings on each of the statutory penalty criteria. We
direct the judge to institute further proceedings as necessary to obtain evidence that will enable
him to make findings pertinent to Damron's individual liability.
VI.
Mitch Potter's Liability Under Section llO(c)
A.

Factual and Procedural Back~round

The Secretary charged Sunny R.jdge president Mitch Potter with knowingly authorizing,
ordering, or carrying out (along with Tracy Damron) the alleged highwall violations described in
Order Nos. 4020075 and 4020076. The Secretary proposed penalties totaling $12,000 against
Potter. which Potter challenged.

272

The judge found that Potter was liable under section 11 0(c) for the violations alleged in
Order Nos. 4020075 and 4020076. 17 FMSHRC at 659. The judge stated:
Mr. Potter supervised the day-to-day operations of the corporation.
He was present at Mine No.9 on January 27, 1993, and was aware
of the conditions of the highwalls involved in the two orders before
the inspection. Also, Mr. Potter was aware of previous citations
issued by Inspector Cure for similar violations of the same
standard. I find that Mr. Potter was in a position to prevent the
violations found on January 27, 1993, but failed to take action to
do so.

Jd. at 658-59. The judge assessed civil penalties against Potter of $6,000 for each order. /d. at
659. We subsequently granted Potter's petition for discretionary review challenging the judge's
fmdings of liability and penalty assessments.
·
B.

Dis.position

Relying on the arguments advanced elsewhere in petitioners' joint brief, Potter argues
that the judge's findings of violations are not supported by substantial evidence. S.R. Br. at 19.
Potter also argues that his conduct was not "knowing." Citing his su~jective belief that the cited
highwalls were sound, Potter asserts that the Secretary failed to prove that he knew of any
conditions that may have violated section 77.1001. !d. The Secretary responds that substantial
evidence supports the judge's conclusion that Potter is liable under section 11 0(c) for the two
alleged violations of section 77.1001. S. Br. at 30-31,34-35. The Secretary argues that section
11 0(c), rather than imposing a subjective standard, requires an operator's agent to act in an
objectively reasonable manner. /d. at 22. The Secretary contends that, with respect to each of
the two charges brought against him, Potter failed to meet this standard of care. The Secretary
points out that Potter testified he was at the mine on the day the orders were issued and was
familiar with the cited highwall conditions. /d. at 31 (citing Tr. 326). The Secretary does not
address the propriety of the penalties assessed by the judge.
With respect to Order No. 4020075, there is no evidence in the record that Potter actually
knew of conditions in the No.2 Pit on the day the order was issued. Nor was any evidence
presented at the hearing that Potter had been informed of the conditions, or had any reason to
know of the conditions. The only mention of Potter in all of the testimony on this order is
Inspector Damron's statement that Potter attended a closeout conference after the order was
issued. Tr. 243. Nevertheless, the judge found that Potter "was aware of the conditions of the
highwall" cited in Order No. 4020075. 17 FMSHRC at 659.
The judge's fmding, however, is not supported by substantial evidence. Although Potter
was at the mine on the day in question (Tr. 325-26), this fact alone does not support the judge's
finding. Because substantial evidence does not support a finding that Potter knew or should have

273

knovm about the hazardous conditions in the No.2 Pit, we reverse the judge's conclusion that
Potter is liable for the violation charged in Order No. 4020075 and vacate the $6,000 penalty
assessed by the judge.
In contrast, there is no dispute that Potter was aware of the conditions in the No. 1 Pit
cited in Order No. 4020076. Tr. 326. He also discussed the condition of the spoil bank in·the pit
with Tracy Damron and Sunny Ridge's safety director, the three of whom agreed that conditions
were bad. Tr. 288, 291-92. We have held that "[i]f a person in a position to protect employee
safety and health fails to act on the basis of information that gives him knowledge or reason to
know of the existence of a violative condition, he has acted knowingly and in a manner contrary
to the remedial nature of the statute." Kenny Richardson, 3 FMSHRC 8, 16 (January 1981).
Potter knew about the highwall and spoil bank problems in the No. 1 Pit, yet failed to take any
measures to correct those problems. We thus find that the judge properly concluded that he
knowingly violated section 77.100 I with respect to Order No. 4020076.
Regarding the $6,000 penalty the judge assessed against Potter for this violation, as with
the penalties he assessed against Damron, the judge failed to make any separate fmdings of fact
on the section 11 O(i) penalty criteria. See 17 FMSHRC at 659. Findings appear elsewhere in the
judge's decision on the gravity of the alleged violations (id. at 657-58), and evidence appears in
the record on whether the violations were abated in good faith (Tr. 229, 292; Gov't Exs. 8, 11).
But with respect to the four criteria concerning Potter's negligence and history of previous
violations, and the appro 'riateness and effect of the penalty assessed again~t him, no evidence
appears in the record on which any findings could be entered, as to Potter individually, by either
the judge or the Commission. For the reasons for which we remanded the judge' s assessment of
penalties against Damron, we also vacate this penalty and remand for reassessment. The judge
must make separate findings on each of the statutory penalty criteria, and must institute further
proceedings as necessary to obtain evidence that will enable him to make such findings.

274

VII.
Conclusion
For the foregoing reasons, we ( 1) vacate and remand the judge's determination that Sunny
Ridge violated section 77.405(b) and that the violation was S&S, and direct him to fully analyze
and weigh the relevant testimony of record, make appropriate findings, and fully articulate the
reasons and bases for his decision; (2) affirm the judge's findings with respect to each of the
three alleged violations of section 77.1001 set forth in Order Nos. 4020210,4020075, and
4020076, Tracy Damron.'s liability for all three violations, and Potter's liability for the violation
charged in Order No. 4020076; (3) reverse tlie judge's determination that Potter is liable for the
violation charged in Order No. 4020075; (4) vacate the judge's determination that Damron is
liable for the violation charged in Citation No. 4020202, and remand for further proceedings
consistent with our remand of the underlying citation; and (5) vacate and remand the penalties
assessed by the judge against Damron and Potter for each of the violations for which they are
liable, and direct the judge to make the necessary findings as to their individual penalty
assessments and to institute further proceedings to obtain evidence that will enable him to make
such findings.

Marc Lincoln Marks, Commissioner

275

Commissioner Riley, dissenting in part:
While I am in general agreement with the majority, I am concerned about the majority's
decision to affirm civil penalties ordered by the administrative law judge for three highwall
violations and therefore dissent on that issue alone. I am certainly aware of and appreciate the
Commission's authority to independently set appropriate penalties for violations of the Mine Act.
It is simply not clear to me that is what occurred in this case.
l am troubled by the indecipherable criteria used to calculate the appropriate sanction.
The judge's penalty assessment is not based on any discemable mathematical formula nor
supported by any comprehensible legal rationale and is therefore unreviewable.
It is also likely, although not clear, that the judge was influenced by the Secretary's
questionable posthearing argument to double the original penalties assessed against Sunny Ridge
for the highwall violations. This extraordinarily punitive proposal has the appearance of
retaliation for exercising and vigorously pursuing due process rights. Consequently, it must be
chall.enged. Since the judge's decision does not allow us to determine to what extent he was
influenced .bY that argument, his penalty assessment must be vacated and remanded for a more
complete explanation.

Order No. 40202 I 0 (August 18. 1992 Highwall Order.). The inspector observed material
on the side of the Number 3 Y2 Pit consisting of blasted rocks of various sizes that formed a
vertical highwall approximately 25 feet high and 200 feet long. 17 FMSHRC 648, 655 (April
1995) (ALJ); Tr. 120, 12?, 138. Inspector Cure observed four pieces of equipment operating
below the spoil bank. 17 FMSHRC at 655. The Secretary's MSHA staff proposed a penalty of
$4,600.
In his posthearing brief, the Secretary argued that this proposed penalty should be
doubled "to reflect the lack of good faith and high level of negligence attributable to [Sunny
Ridge]." S. Posthearing Br. at 31-32. The judge, noting that he had considered "all ofthe
criteria for civil penalties" under section 11 O(i) of the Mine Act, but without making any separate
findings of fact on the criteria, assessed a penalty of $8,000 against Sunny Ridge for violating
section 77.1001. 17 FMSHRC at 656. Without commenting on the Secretary's argument for
vastly increasing the penalty, or offering any other explanation, the judge assessed a penalty
almost double that originally proposed by MSHA. In keeping with Sellersburg Stone Co. v.
FMSHRC, 736 F.2d 114 7 (7th Cir. 1984), the judge should be directed on remand to fully
explain his penalty assessment.
Order No. 4020075 (Januazy 27. 1993 Highwall Order. Pit No.2). When MSHA
Inspector Billy Damron came to the Number 2 Pit, he observed loose, hazardous, and
unconsolidated material that had not been stripped from the approximately 65-foot high highwall
and spoil side of the pit. 17 FMSHRC at 656-57. It is worthwhile to note that the highwall in Pit
No.2 was 2Y2 times as high as the August 1992 violation in Pit No. 3Yz and, therefore, arguably

276

more dangerous. Inspector Damron observed one piece of equipment operating beneath the
highwall. !d. Recognizing the increased risk, MSHA proposed a penalty of$7,500.
In his posthearing brief, the Secretaiy argued that the proposed penalty should be doubled
"to reflect the lack of good faith and high level of negligence attributable to [Swmy Ridge]."
S. Posthearing Br. at 31 -32. The judge concluded that Swmy Ridge violated section 77.1001.
17 FMSHRC at 659. Noting that be had considered "all of the criteria for civil penalties" under
section 11 O(i) of the Mine Act, but without making any separate findings of fact on the criteria,·
the judge assessed a $10,000 penalty against Swmy Ridge. !d. at 657.
As with Order No. 4020210, however, the judge assessed a penalty significantly higher
than that originally proposed by MSHA without commenting on the Secretaiy's argwnent for a
vastly increased penalty, or offering any other explanation. (The $1 0,000 penalty assessed by the
judge is 331/s percent higher than the $7,500 penalty originally proposed by MSHA.) The judge
should be directed on remand to provide a full explanation of his penalty assessment.
Order No. 4020076 Qanuazy 27. 1993 Highwall Order. Pit No. 1). Inspector Damron
observed loose, hazardous material on the face and top of a highwaU and on the spoil side in the
Number 1 Pit. 17 FMSHRC at 657. The highwall was approximately 90 to 100 feet high, id. at
657-58, four times higher than the August 1992 violation and approximately 40 percent higher
than the highwall violation in Pit No.2 earlier on the same day. Several pieces of equipment
were operating under the highwall, and footprints indicated individuals had worked or traveled
under the spoil bank. !d.
·
Considering the greater threat presented by the highwall, MSHA assessed a proposed
penalty of$9,200 against Swmy Ridge. In his posthearing brief, the Secretaiy argued that this
proposed penalty should be doubled ''to reflect the lack of good faith and high level of negligence
attributable to [Sunny Ridge]." S. Posthearing Br. at 31-33. Noting that he had considered "all
of the criteria for civil penalties" under section 11 O(i) of the Mine Act, but without making any
separate findings of fact on the criteria, the judge assessed a $10,000 penalty against Sunny
Ridge. 17 FMSHRC at 658. Again, without commenting on the Secretaiy's argument for greatly
increasing the proposed penalty, or offering any other explanation, the judge assessed an amount
higher than the civil penalty originally proposed by MSHA. This time, however, without regard
to the seriousness of the violation, the judge's adjustment of the penalty was quite modest.

It is clear that as the height of each violative highwall increased, so too were MSHA's
initial penalty assessments adjusted upward commensurate with the increased danger. While the
height of the highwall violations increased over threefold, the penalties assessed increased
·
twofold. Apparently not content with the results ofMSHA's initial calculations which according
to the Program Policy Manual and Enforcement Guidelines would have included all relevant
factors including negligence, the Secretaiy, citing extreme bad faith, proposed in his posthearing
brief to double the civil penalties yet again. The judge, however, made no specific findings on
nor even mentioned the extreme bad faith issue in his decision.

277

This silence, however, did not stop the judge from more or less endorsing the Secretary's
retaliatory posthe-aring brief suggestion for one violation. Without a shred of explanation, the
judge increased the proposed penalty by approximately 75 percent for what was probably the
least serious high wall violation. What were his reasons when, for an arguably more serious
violation of the same standard, th·e judge, again without explanation, substantially modified the
Secretary's questionable suggestion, increasing the proposed penalty by 33 113 percent? What was
the judge thinking when, for the most serious violation, he almost ignored the Secretary's
punitive exhortation, increasing the proposed penalty by only 8% percent? His actions leave me
with more questions than answers about his rationale for assessing the penalties. The judge must
explain more precisely exactly what he did and why he did it.
The high level of negligence also offered in posthearing brief as the other justification for
multiplying penalties was noted on the face of the citations and presumably considered by area
compliance staff and at the time they determined appropriate penalty assessments for the cited
offenses. I question why the Secretary's counsel did not raise this argument at the hearing. I am
concerned that "rubber stamping" this maneuver to increase the exposure of operators who refuse
settlement will compromise statutory due process rights afforded to all persons under our
jurisdiction, including uncooperative and argumentative ones.

\~. _. c_. Q

Games

C. Riley, Commissioner

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
40 15 Wilson Blvd., Suite 400
Arlington, VA 22203

Reed D. Anderson, Esq.
P.O. Box279
Pikeville, KY 41502
Administrative Law Judge William Fauver
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline Center, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

278

--·-----..

ADMINISTRATIVE lAW JUDGE DECISIONS

FEDERAL Mh.,c SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB

6 t997

PATRICIA ANN VILLINES,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. CENT 96-28-DM

COBRE MINING COMPANY,
Respondent

SC MD 95-05
Cobre Mine
DECIS:ION

Appearances:

Robert F. Turner, Esq., Deming, New Mexico, for
the Complainant;
Patrick M. Shay, Esq ., Rodey, Dickason, Sloan, Akin
& Robb, P.A., Albuquerque, New Mexico, for
Respondent.

Before:

Judge Maurer

This case is before me upon a complaint of discrimination
brought by Patricia Ann Villines against the Cobre Mining Company
(Cobre) under section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(c).
The case was heard on November 6, 1996, in Truth or
Consequences, New Mexico . For the reasons set forth below, I
find that Ms. Villines was not terminated for engaging in
activities protected under the Mine Act and, therefore, was not
discriminated against by Cobre, in violation of section 105(c ~.
The Complainant was hired by Cobre on March 5, 1993 and
fired on July 13, 1995. At the time of her termination, she was
the safety office clerk.
She claims to have had no employment-related problems until
May 19, 1995, shortly after her immediate supervisor, Mike Best,
was fired.
On May 19, 1995, she received a Letter of Counseling from
Mr. Trujillo, who was the human resources manager at Cobre and
her immediate supervisor after Best's termination. This Letter
of Counseling is contained in the record as Cobre Exhibit A and
it recites several instances of nonfeasa.n ce and malfeasance by
Ms . Villines. Basically, Mr. Trujillo was upset with the
operation of the safety department generally and Ms. Villines'
work particularly.

279

The testimony from Mr. Trujillo and Ms. Dinwiddie (the
office manager) at the hearing was all to the effect that
Ms. Villines had to be constantly reminded to perform the duties
of her job, and work that she did perform, ·was poorly done. They
also testified concerning Ms. Villines' lack of skills in typing,
filing, and administrative tasks generally. I note that this was
the first and only clerical type job she has ever held.
Ms. Villines was given several opportunities to upgrade her
skills, but she reportedly failed to take advantage of them.
Specifically, for example, the office manager offered to take
time to teach her the computer skills she needed to better
perform her job, but she •did not show up for the training.
The evidence is uncontested that the training department
records were in a mess at the time Mike Best was fired, and
Mr. Trujillo took over as the complainant's supervisor. The
feeling was that this was the complainant's job and that Mr. Best
had simply let her slide rather than insisting that she maintain
these certification records in a proper manner .
Mr. Trujillo attempted to impress upon the complainant the
importance of maintaining proper records within the safety
department and specifically tasked her with putting these records
in order. However, despite his more or less constant urging, she
was not getting the work accomplished. Rather, she would find
other work to do or other ways to occupy her time. Meanwhile,
the federal and state mine inspectors were putting pressure on
the mine management to get these records into shape for review.
Finally, after about a month of little or no progress and
with the records still in extremely bad shape, the company sought
the assistance of a technical specialist from the New Mexico
Bureau of Mine Inspection to train the complainant along with
Ms. Dinwiddie, the office manager, and Ms. Webb, the
receptionist, to properly fill out and file the training records .
On July 12, 1995, at approximately 8:00a.m., the state-provided
training commenced. At about 10:30 a.m., Mr. Trujillo was
advised that Ms. Villines was not cooperating with the trainer.
She was coming and going in and out of the room, talking on the
phone, and generally just not paying any attention to the
training. This apparently was the last straw. The next day,
July 13, 1995, Ms. Villines' employment was terminated.
A complainant alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
proving that she engaged in protected activity and that the
adverse action complained of was motivated in any part by that
activity. Secretary of Labor on behalf of Pasula v .
Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980},

280

rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817 18 (April 1981) . An operator may rebut the prima facie case by
showing either that no protected activity occurred or that the
adverse action was in no part motivated by protected activity.
Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was motivated by the
miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Id.; Robinette,
3 FMSHRC at 817-18; see also Eastern Associated Coal Cor,p. v.
FMSHRC, 813 F.2d 639, 642, (4 th Cir. 1987).

The complainant's only alleged protected activity is
cooperating with MSHA by talking with an investigator concerning
the termination of her former boss, Mike Best. However, her
statement was not favorable to Mr. Best. Her understanding of
why he was fired was because he was not doing his job and that's
basically what she told the MSHA investigator. She agrees the
safety office was a mess at the time Mike Best was fired.
Furthermore, it was Mr. Trujillo, her new supervisor that
requested that the MSHA investigator interview her. It was the
MSHA investigator who told her that.
Mr. Trujillo corroborates
that portion of her testimony as well.
It follows logically then that if the company suggested that
she be interviewed by MSHA concerning Best's case, and she in
fact supported their firing of Best with MSHA during that
interview, they would be unlikely to take adverse action against
her for cooperating with MSHA (at their request) .
Simply put, there is no evidence to support a prima facie
case of discrimination by Cobre against the complainant, that is,
adverse action causally related to protected activity. The
complainant's own lack of productivity provided ample basis for
discharging her.
ORDER

Accordi ngly, it is ORDERED that the complaint filed by
Patricia Ann Villines against the Cobre Mining Company for a
violation of section 105(c) of the Mine Act is DISMI SSED .

~ . AAA~~··

~ ~VV\

Roy .IJ .j Maurer
Admin1strative Law Judge

Vj

281

Distribution:
Robert F. Turner, Esq., 101 South Copper, Deming, NM 88030
(Certified Mail)
Patrick M. Shay, Esq., Rodey, Dickason, Sloan, Akin & Robb, P.A.,
P. 0. Box 1888, Albuquerque, NM 87103 (Certified Mail)
dcp

282

PEDBRAL KINE 8U'ETY AND BEALTB azvxn COKKI88IOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB

7 1997

.
.
:
..•
v.
•
WINN CONSTRUCTION CO., INC., .
.
Respondent
SECRETARY OF LABOR,
M.INE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 96-327
A.C. No. 15-.1 6482-03526
Browns Valley Mine

DECISION

Appearances:

Anne T. Knauff, Esq., Office of the Solicitor, u.s.
Department of Labor, Nashville, Tennessee, for the
Petitioner;
J.R. Winn, Safety Director, · Winn Construction
Company, Inc., owensboro, Kentucky, for the
Respondent.

Before:

Judge Melick

This civil penalty proceeding is before ~e pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. S 801 et seq., the "Act," to challenge two citations
issued by the Secretary of Labor to Winn Construction Company,
Inc. (Winn Construction) and to contest the civil penalties
proposed for the violations charged therein. The general issue
before me is whether Winn Construction violated. the cited
·
standards and, if so, what is the appropriate civil penalty to be
assessed considering the criteria under Section 110(i) of the
Act.
The two citations at issue arose from an accident at the
Browns Valley Mine on March 7, 1996. A 10-foot by 10-foot steel
pump house, built on four 12-foot pontoons and weighing
approximately one ton, was to be moved to another work site
utilizing a "cherry picker".
Foreman Max Fendell was operating
the cherry picker and mechanic George Townsell and miner
Dewayne Pharris walked alongside prepared to steady the load as
it was being moved. It was suspended by chains attached to a
hook on the cherry picker boom. The load was not otherwise
secured.
As the cherry picker moved across some water diversion
ditches, the load began to move. Townsell and Pharris steadied
the pump house with their hands. The boom of the cherry picker

283

then contacted the overhead high-voltage power lines, breaking
one of the power lines and the ground line. Since Townsell was
in contact with the metal pump house wit~ his right hand the
. electrical current entered this hand and e x ited his right foot.
He suffered burns to his fourth, middle and index fingers, two
small burn holes on the ball of his right hand and a dime-sized
burn on the bottom of his right foot . He received first-aid and
was later transported to the intensive care unit of the
owensboro Mercy Health system for observation. He was released
on the third day after the accident and returned to work on March
11, 1996 .
It is undisputed that Pharris and Townsell were not watching
the power lines as they walked alongside the pump house. It has
also been stipulated that Foreman Fendell knew the high-voltage
lines were energized , that he examined the work area before
moving the pump house, that he did not consider energized lines
to be a hazard, and that he thought he had lowered the boom
sufficiently to clear the power lines.
Citation No . 4276841 alleges a "significant and substantial"
violation of the standard at 30 C. F. R. S 77.1607(s) and charges
as follows:
The Galion model 125 company ID 301 cherry picker
located at the preparation plant area was transporting
an approx 12 times 12 metal pump house pontoon and the
equipment was not secured. The equipment was involved
in an accident Mar.ch 7, 1996.
The cited standard, 30 C.F.R . S 77.1607(s) provides that
"[w)hen moving between work areas, the equipment shall be secured
in the travel position . "
Citation No. 4276919 alleges a "significant and substantial"
violation of the standard at 30 C.F. R. S 77.807-3 and charges as
follows:
The Galion model 125 Co. ID 301 cherry picker
located at the preparation· plant area was being operated
within 10 feet of an energized overhead line and the power
lines were not deenergized or other precautions taken .
The cherry picker was transporting an approx. 12 x 12 foot
metal pump house pontoon when the boom made contact with the
energized overhead power line. One person was contacting
the metal structure and received an electric shock from the
7200 volt overhead power line. The accident occurred
March 7, 1996 .
The cited standard, 30 C.F.R . S 77.807-3, provides that
"when any part of any equipment operated on the surface of any
coal ·mine is required to pass under or by any energized high-

284

voltage power line and the clearance between such equipment and
power line is less than that specified in Section 77 . 807-2 for
boom and masts, such power lines shall be deenergized or other
precautions shall be taken . "
The standard at Section 77.807-2 provides in part that "the
booms and masts of equipment operated on the surface of any coal
mine shall not be operated within 10 feet of an energized
overhead power line."
There is no dispute in this case that the violations
occurred as charged, and that they were "significant and
substantial" and of high gravity. Winn Construction takes issue,
however, with the amount of penalty proposed by the Secretary for
the violations. In determining the amount of penalty to be
assessed in these cases, the degree of operator negligence is of
particular importance. In this regard Inspector Michael Van
Moore of the Mine Safety and Health Administration (MSHA) noted
that, when issuing these citations there were mitigating
circumstances which warranted his findings of moderate
negligence. In particular, Moore relied upon statements to him
by Foreman Fendell that although he knew the power lines were
energized he tried to avoid them by suspending the pump house in
a low position and that he had the other miners watch the
overhead lines.
Jerry Winn, Jr., on behalf of the Respondent testified that
he too had talked to Fendell and that Fendell told him that he
did not specifically tell his workers to watch out for the power
lines. In addition, Winn testified that Pharris reported to him
that he was not told "anything in particular" regarding the power
lines. Under the circumstances it would appear that Inspector
Moore's conclusions that Respondent was chargeable with but
moderate negligence may have been based upon less than credible
and self serving statements. I do note however that Fendell was
disciplined by Respondent for his negligence and received a
letter of reprimand.
In any event, under all the circumstances and considering
the criteria under Section llO(i) of the Act, I conclude that
civil penalties of $500 for each of the violations is
appropriate.

285

ORDER

Citation Nos. 4276841 and 4276919 are affirmed and Winn
Construction Company, Inc. is hereby directed to pay civil
penalties of $500 for each of the violations in the above
citations within 30 days of the date of this decsion.

.'
'

I

Gary
Admin

Judge

Distribution:
Anne T. Knauff, Esq . , Office of the Solicitor, u.s. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
J. R. Winn, Safety Director, Winn construction co., Inc._, 2920
Fairview Drive, owensboro, KY 42303 (Certified Mail)
jjf

286

FEDERAL M.a.dB SAFETY AND HBAL'l'B JU:.aBW COMMISSION
01'1'%0 OP 'fD AmCDf%8TUTrft LUf .nmcDS
2 8KYLID, 10TB FLOOR
5203 LKISBURQ •1xa
PALLS CBURCB, VUQDIIA 220U

FEB 7 199Z
CIVIL PENALTY PROCEEDINGS

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

: Docket No. CENT 96-124-M
A. C. No. 14-00162-05501 WZB
Independence Quarry and Mill

WILLIAMS NATURAL GAS COMP~Y,
Respondent
: Docket No. CENT 96-158-M
A. C. No. 14-00124-05501 WZB

.

Monarch Cement Company

SUMMARY DICXSION

Before:

Judge Feldman

These cases are before me for summary disposition as a
result of petitions for assessment of civil penalties filed by ,
the Secretary of Labor pursuant to section 105{d) of the
Federal Mine Safety and Health Act of 1977 (The Act),, 30 U.S.C.
§ 801 ~ ~, against the respondent, Williams Natural Gas
Company (WNG) . These matters were consolidated for hearing
on November 8, 1996, because they involve similar facts .
Consequently, the parties have agreed that, in the absence
of specific factual distinctions raised by either party,
the arguments made in CENT 96-124-M shall also apply to
CENT 96-158-M. (Resp.'s lette~ dated Nov . 6, 1996).
WNG is the operator of an interstate gas pipeline system
with meter buildings and pipeline facilities located within the
above captioned mine propert~es. The Secretary seeks to impose a
total civil penalty of $119.00 in these cases for two alleged
nonsignificant and substantial violations of the mandatory safety
standard in section 56.4101, 30 C.F.R. § 56.4101, as a result of
a failure to post warning signs on WNG's meter buildings.
Section 56.4101 requires that M(r]eadily visible signs
prohibiting smoking and open flames shall be posted where a fire
or explosion hazard exists.• WNG concedes that the operators of
the mines upon which the cited gas line buildings and facilities
are located are its customers in that they purchase gas from
Wesco, an affiliate that is managed separately from WNG.
(Resp . 's Motion. P.2, n.1 ) .

287

The parties have stipulated, inter alia, that the cited
meter buildings are on mine property subject to the Act; WNG
owns, operates and has sole access to, and control of, the cited
meter buildings; the cited meter buildings are within a
reasonable proximity to walkways, roads and/or parking
facilities; there were no signs prohibiting smoking or open
flames posted on the outside of the cited meter buildings at the
time the citations were issued; and such signs were posted on the
cited meter buildings on or before the day following the issuance
of the citations.
Although WNG disagrees with the degree of the explosive
hazard posed by the cited pipeline buildings because natural gas .
is lighter than air and purportedly rapidly dissipates in the
atmosphere, 1 WNG agrees that there are no disputed issues of fact
with regard to the descriptive language contained in Citation·
Nos. 4363655 and 4357036. (Resp.'s Opp., p.1). Consequently,
the parties have filed cross motions for summary decision on the
jurisdictional question of whether the respondent, as an
independent contractor, is an •operator• subject to the
jurisdiction of the Mine Act.
Statement of the Case
The undisputed condition cited in Docket No. CENT _g6-124-M
that serves as the basis for the alleged violation of section
56.4101 is detailed in Citation No. 4363655 issued at the
Independence Quarry and Mill on January 23, 1996. Citation No.
4363655 states:
There were HQ signs prohibiting smoking or open flames
posted on any of the {4) natural gas pipe line
buildings located in the north east center of the mill.
The (2) n.w. central meter houses were under the sole
control of the independent contra-c tor. The ( 2) n. w.
central meter houses contained the main 8" natural gas
pipe intake values and controls. There was dryed
vegetation and other combustibles in and around the
buildings. The meter houses were approximately 10 foot
from a walk way and road way warning signs are needed
and required to be posted to warn persons that smoking
and open flame is not allowed in the main 8" natural
gas pipe line buildings.

1

The likelihood of explosion is not in issue because the
the violations in question have been designated as nonsignificant
and substantial.

288

The undisputed condition cited in Docket No. CENT 96-158-M
that was deemed to constitute a violation of section 56.4101 is
contained in Citation No . 4357036, issued at the Monarch Cement
Company on April 4, 1996. Citation No. 4357036 states :
There were NQ signs prohibiting smoking or open flames
posted on any of the (2) natural gas pipe line
buildings located in the southwest end of the
employees• . west parking Lot. The (2) buildings are
under the sole control of the independent contractor.
There was .a person observed smoking in the area at the
time of inspection. There are employee cars and trucks
parked next to the pipe line, approximately 5' from it .
Persons that [are] smoking and open flames [are] ~
allowed in the (8") natural gas pipe line area.
ConcJusions of Law
The issue for summary disposition is whether WNG is an
"independent contractor" within the meaning of the statutory
definition of "operator" in section 3(d) of the Act. In
addressing this jurisdictional issue, it is noteworthy that the
predecessor legislation to the current Mine Act, known as the
Federal Coal Health and Safety Act of 1969, 30 U.S.C. § 80~
~ ~, defined •operator" as •any owner, lessee, or other person
who operates, controls or supervises a coal mine." Section 3(d)
of the current Mine Act, adopted in 1977, expanded the definition
of "operator" to include •any independent contractor p.e rforming
services or construction at such mine." 30 u.s.c. § 802(d}.
Thus, the controlling question is whether WNG's prov~sion of
natural gas through its meter buildings and pipeline facilities
located on mine property constitutes the requisite •performance
of services" at a ·mine by an independent contractor to subject
WNG to Mine Act jurisdiction.
The Federal Courts have had varying interpretations of the
applicability of the expanded scope of the 1977 Act. Thus, the
respondent, in its .November 8, ~996, Motion for Summary Decision,
urges me to adopt the more restrictive approaches with respect to
Mine Act jurisdiction taken by ~he Third and Fourth Circuits .
National Indus. Sand Aas'n y. Marshall, 601 F.2d 289 (3rd Cir.
~979) and Old Dominion Pqwer Company y. Sec•y of Labor & FMSHRC,
772 F. 2d 92 (4th Cir. 1985) .
In National, the Third Circuit held dredging contractors to
be •operators" su.b ject to the Act. However, the court suggested
there may be a point where an independent contractor's contact
with a mine "is so infrequent or de minimis" that it would be
difficult to find the requisite "performance of services" at a

289

mine in order to qualify as section 3(d) uoperators . • 601 F.2d
at 701. Consistent wi th the Third Circui t's concerns, in
Old Dominion, the Fourth Circuit concluded only those independent
contractors involved in mine construction or the extraction
process, and who have a ucontinuing presence" at the mine, should
be considered as Moperators." 772 F.2d at 97. Thus, the court
determined an electric utility's meter reader, who briefly
entered the premises approximately once each month, had contacts
that were uso rare and remote from the mine construction or
extraction process [that the utility did) not meet [the
statutory] definition of 'operator•." ~at 96, 97. Here,
relying on the Old Dominion criteria, WNG argues that it is not
involved in the extraction process and that it lacks a continuing
presence at the ·subject mines. Thus, WNG asserts it, like Old
Dominion Power Company, is a utility immune from Mine Act
jurisdiction because it lacks a continuing presence at the cited
mine facilities.
On the other hand, the Secretary, in his November 19, 1996,
Cross Motion for Summary Decision, relies on the D. C. Circuit's
decision in Otis Elevator Co. V. Sec•y of Labor, 921 F.2d 1285
(D.C. Cir . 1990), that broadened the Act's jurisdiction over
independent contractors. In Otis Elevator, the D.C. Circuit
examined the legislative history and intent of the 1977 Mine Act
and concluded section 3(d) was written to be inclusive in order
to encompass •any independent contractor performing services
at a mine.• Id . at 1290. The Secretary's cross motion also
briefly referred to a recent Tenth Circuit decision, released on
November 5, 1996, that followed the Otis Elevator approach of
expanded contractor liability under the Act. Joy Tecbnologies
Inc, v. Sec'y of Labor, 99 F.3d 991 (lOth Cir. 1996}, aff•g ~
Technologies. Inc., 17 FMSHRC 1303 (August 1995).
Joy Technologies involved a company that sold and delivered
a continuous miner to a mine operator in Gunnison County,
Colorado in April 1992. During 1992 Joy's service representative
visited the mine facility at least five times and performed a
variety of services including ensuring that Joy's equipment was
delivered in proper condition, advising and assisting in repairs,
and procuring necessary replacement parts. Joy was held
accountable under the Act after an MSHA inspector observed Joy's
service representative maneuver the continuous miner in a
hazardous manner.
Joy argued it did not meet the requirements for operator
status under section 3(d) because it was neither sufficiently
engaged in the extraction process, nor continuously present at
the mine. 99 F.3d at 999. The Tenth Circuit, in concluding that
these two circumstances did not exclude Joy from the definition
of •an operator• under the Act, explicitly declined to adopt the
restrictive Old Dominion approach. ~ Rather, the Tenth
Circuit agreed with the D.C. Circuit's Otis Elevator opinion,

290

stating that •we think the definition of 'operator' in section
3(d) of the Mine Act is clear and means just what it says- an
operator includes any independent contractor performing services
. at [a] ·mine . " ~
The mi ne sites in these proceedings are located in the
State of Kansas, within the appellate jurisdiction of the Tenth
Circuit. Thus, I view the Tenth Circuit Joy Tecbnologiee
decision, rather than the Old Dominion case, as the controlling
case law on the instant jurisdictional question. Consequently,
on December 5, 1996, I issued an Order requiring the parties ·to
address the applicability of the Court's Joy Tecbnologies case to
the jurisdictional issue in these proceedings . The respondent's
supplemental motion was filed on December 30, 1996. The
Secretary's supplemental brief was filed on January 6, 1997 ..
Ordinarily, a threshold question would arise concerning.
whether the services provided to the mine operators by WNG are
meaningful enough to qualify WNG as an independent contractor
under the Mine Act. However, WNG undisputedly maintains meter
buildings and pipeline facilities on mine property through whic~
it provides natural gas energy to mine operato~s . Consequently,
WNG , in its supplemental motion, admits that it is an independent
contractor . Thus, on the basis of these facts alone, under ~
Technologies, WNG is an •independent contractor . . . performing
services at [a] mine. 99 F.3d at 1000 . WNG, therefore,~ is an
•operator" subject to the jurisdiction of the Mine Act . ~
The Joy Technologies and Otis Eleyator decisions are
consistent with Congress• intent to liberally construe the
Mine Act in order to broaden its scope and accomplish its
goal of protecting miner safety and health. . Secretary of Labor
y. Cannelton Industries, 867 F.2d 1432 (D.C . Cir . 1989).
However, notwithstanding the broad approach to independent
contractor liability, WNG attempts to distinguish itself from
Joy Technologies by emphasizing that the Tenth Circuit predicated
Joy's independent contractor status •not on the existence of a
service contract or control, but on the performance of
significant services at the mine . • 99 F.3d at 999 . Thus, WNG
argues that, unlike Joy, it does not perform significant services
at the cited mines .
·
WNG's assertion that its provision of natural gas through
its pipeline facilities is not a significant service, because
WNG has no •continuing presence" at the subject mines, is
unpersuasive. At the outset, I note the question of •significant
service" m~st be viewed qualitatively rather than quantitatively .
The provision of mining equipment by Joy, as well as the
provision of natural gas by WNG as fuel for mining operations,
are significant, if not indispensable, services that are
fundamental to the extraction process .

291

Moreover, even if the term "significant service" is viewed
quantitatively, WNG has a continuing presence on mine property by
virtue of its constant provision of its natural gas product. In
this regard, its pipeline facilities, located on mine property,
are under the exclusive control of WNG. These facilities require
periodi c maintenance and oversight by WNG personnel. Such a
presence far exceeds the degree of contact manifested by the five
visits per year by Joy's service representative that was deemed
•significant service" by the Tenth Circuit. Thus, WNG's
provision of natural gas through its on-site facilities
constitutes the performance of •significant services at the mine"
under section 3(d) under either a quantitative or a qualitative
analysis .
Finally, WNG argues that, e~en if it is subject to the
Mine Act, the Department of Transportation (DOT) regulations
governing gas pipelines in 49 C.F . R. Parts 191 and 192 should
take precedence over MSHA's mandatory safety and health
standards . It is not uncommon for federal safety standards
promulgated by different executive departments to overlap. For
example, safety defects on haulage vehicles observed on mine
property may constitute violations of MSHA as well as DOT safety
standards. In the final analysis, the purpose of the Mine Act is
to protect the safety of the nation's miners . While the cited
violations were characterized as nonsignificant and subs~antial,
in the unlikely event of an explosion, mine personnel are the
potential victims.
WNG has cited no legislative history or case authority to
support its assertion that MSHA ' s mandatory safety standards are
preempted by DOT regulations. Although section 4(b) (1) of the
Occupational Safety and Health Act, 29 U.S.C . § 653(b) (1),
precludes OSHA from promulgating or enforcing occupational safety
and health standards for particular working conditions when
another federal agency exercises statutory authority over those
working conditions , the Mine Act does not contain an analogous
preemption provision . Columbia Gas of Pennsylvania. Inc. y .
Marshall, 636 F.2d 913 (3~d Cir . 1980). Moreover, DOT has not
exercised its authority with respect to the violative conditions
cited by MSHA in these matters . Consequently, in the absence of
a specific statutory preemption~ there is no support for WNG's
contention that 49 C. F . R. § 192.751 of DOT's regulations preempts
MSHA enforcement. 2

2

Section 192.751 of DOT's regulations requires warning
signs on potentially explosive gas line facilities .

292

Accordingly, WNG is an independent contractor performing
services on mine property. As such, WNG is an *operator" as
contemplated by section 3(d) that is subject to the jurisdiction
of the Act. The parties have stipulated to the fact of
occurrence of the cited violations that have been designated as
nonsignificant and substantial in nature. Consistent with
the penalty criteria in section 110(i) of the Act, 30 U.S.C.
§ 820(i), I conclude that the $119.00 total civil penalty sought
to be imposed by the Secretary, consisting of $69.00 for Citation
No . 4363655 in Docket No. CENT 96-124-M, and $50.00 for Citation
No. 4357036 in Docket No. CENT 96-158-M, is appropriate.
OBDBR

In view of the above, the respondent's Motion for Summary
Decision IS DENIED . The Secretary's Cross Motion for Summary
Decision IS GRANTED . IT IS ORDERED that Citation No. 4363655 in
Docket No. CENT 96-124-M, and Citation No. 4357036 in Docket No.
CENT 96-158-M, ARE AFFIRMED. IT IS FURTHER ORDERED that Williams
Natural Gas Company shall pay $119.00 in satisfaction of the
citations in issue within 30 days of the date of this Decision.
Upon timely receipt of payment, these cases ARB DISMISSED .

Jerold Feldman
Administrative Law Judge
Distribution:
Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Dept.
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Joseph W. Miller, Esq . , The Williams Companies, Inc., 4100
Bank of Oklahoma Tower, One Williams Center, Tulsa, OK 74172
(Certified Mail)
/mea

293

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

FEB 1 1 1997
UNITED MINE WORKERS OF AMERICA
ON BEHALF OF
WILLIAM KEITH BURGESS,
GLENN LOGGINS, AND
DAVID MCATEER,
Complainants
v.

DISCRIMINATION PROCEEDING
Docket No. SE 96-367-D
JWR No.

4 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
MICHAEL J. LAWLESS,
FRANK YOUNG, and
JUDY MCCORMICK
Respondents
UNITED MINE WORKERS OF AMERICA
ON BEHALF OF
B. RAY PATE, the LOCAL
UNION 8982 SAFETY COMMI'M'EE
and others ,
Complainants
v.

DISCRIMINATION PROCEEDING
Docket No. SE 97-18-D
BIRM CD 96-07

u.s. Steel Mining Corp .

Concord Prep Facilities

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
TOM MEREDITH, MICHAEL J.
LAWLESS & FRANK YOUNG,
Respondents
ORPER OF CQNSOLIDATION AND DISMISSAL
Before:

Judge Bulluck
I. Motion to Consolidate

In these discrimination cases brought by the United Mine
Workers of America ( UMWA") against the Mine Safety and· Health
Administration (•MsHA" ) and individual MSHA employees pursuant to
section 1 0S(c) of the Federal Mine Safety and Health Act of 1977
(•the Act" ) , 30 U.S.C. section 801 ~ ~., the Respondent has
8

294

moved to consolidate and dismiss the complaints. 1 /
Inasmuch as
the complaints involve resolution of the same legal issue, and
the motion to consolidate is unopposed by t~e Petitioner, the
motion is granted. For the reasons set forth below, the motions
to dismiss the complaints are, likewise, granted.
II. Motions to Dismiss
The Secretary of Labor ("Secretary") moved to dismiss the
complaints, essentially arguing that there is no cause of
action against MSHA or its employees under section 10S(c) of
the Act. In support of his position, the Secretary cites the
Commission's decision in Wa~ner y. Pittston Qoal Group,
12 FMSHRC 1178 (June 1990), and the decision of the Court of
Appeals for the Fourth Circuit("the Court•) in Wa~ner y .
Secretary of Labor, No. 91-2025, 1991 U.S. App. LEXIS 26336, at
*1 (4th Cir. Nov. 5, 1991), aff'~ by unpublished decision
12 FMSHRC 1178 (June 1990) . 2 I ·
In Docket No. SE 96-367-D, under the circumstances set forth
below, the complainants seek to hold MSHA and MSHA employees
liable for violations of sections 103(g) (in pertinent part,
requiring the Secretary to delete the names of individual miners
from copies of written complaints provided to operators), and
10S(c) (1) of the Act (protecting miners who have engaged in
protected activity from discrimination). 3 / On or about May 24,
1996, the chairman of Local 2245's safety committee David
McAteer, along with committee members William Keith Burgess and
Glenn Loggins, sent a letter to MSHA District 11 manager, Michael
Lawless, complaining of safety violations at the Jim Walter
Resources' #4 mine and MSHA's continual grant of extensions of
scheduled mine inspections. Subsequently, at an accident

1

Although the UMWA filed its complaint (Docket No.
/
SE 97-18-D under section 10S(c) (2), it is clear from the
pleadings that it intended to sue under section 105(c) (3), which
procedural error is without prejudice to the Secretary, and is
therefore deemed immaterial.
2

/
Dennis Wagner sought to hold MSHA employees liable fordisclosing to the operator that he (Wagner) had reported a safety
violation to MSHA during a mine inspection.
3

Because these cases are before me pursuant to motions to
/
dismiss, the complainants' allegations are treated as true. QQff
y . YQu~hio~heny & Ohio Qoal Co., 7 FMSHRC 1776 (November 1985).

295

investigation team pre-inspection meeting held at the mine site,
attended by MSHA supervisors and inspectors, the mine manager and
some of his subordinates, and McAteer and Burgess, a sanitized,
typed version of the letter was distributed, omitting all names
and references to individual miners. However, MSHA supervisor
Judy McCormick verbally chastised McAteer and Burgess for their
criticisms of MSHA, thereby disclosing the identity of the
complainants to Jim Walter Resources management.
In Docket No. SE 97-18-D, the following circumstances gave
rise to the allegation of liability of MSHA and MSHA employees
for violations of section 105(c) (1) of the Act. Pursuant to
various safety and. health concerns raised during the
spring/summer of 1996 by UMWA representatives, including Local
Union 8982 president B. Ray Pate, on or about August 9, 1996,
MSHA District 11 manager Michael Lawless and assistant district
manager Frank Young met with UMWA representatives, including
Pate, to discuss the union's complaints about MSHA District 11
staff and enforcement problems at the mines within District 11.
Thereafter, on or about August 11, 1996, MSHA informed Pate that
MSHA District 11 supervisor Tom Meredith would be requiring· all
miners at the U.S. Steel Concord Preparation Plant and associated
facilities, including the local union officials and its members,
to file health and safety complaints in writing by hand-delivery.
This policy discontinued MSHA's previous policy of accepting
complaints made by telephone to the District 11 office.
Consequently, on September 19 and 25, 1996, the UMWA filed a
section 105(c} complaint against MSHA employees Meredith, Lawless
and Young, charging the District 11 personnel with disclosing to
mine management the identity of the complaining miner
representative, seeking employment with the company, and
conducting negligible enforcement action at the mine. By letters
dated September 23 and October 9, 1996, MSHA rejected the UMWA's
complaint.
Proceedings against MSHA
In Wagner, the Commission held that " . . . MSHA is not a
'person' subject to the provisions of Section 105{c)•, and
dismissed the complaint that had been brought against the agency.
Wagner, 12 FMSHRC at 1185. ~ alaQ Nelson y. SecretahY of
Labor, 14 FMSHRC 337 (February. 1992) (Administrative Law Judge's
dismissal of the UMWA's complaint against MSHA, pursuant to the
Commission's holding in Wagner).
The Commission approached the issue of MSHA's liability by
analyzing the construction of the Act to determine whether the

296

,.

Secretary had consented to be sued. First, in exam~n~ng the
words of sections 105(c) and 3(f) (defines "person" as any
individual, partnership, association, corpor~tion, firm,
subsidiary of a corporation, or other organization) , the
Commission found no reference to the government or any
governmental entity in the term "person," and relied on a
principle of statutory construction that common usage of "person"
does not include the sovereign, and statutes using the term are
ordinarily construed to exclude it. Wagner, 12 FMSHRC at 1184.
In determining that there is no waiver of sovereign immunity in
the Act, the Commission cited Rushton Mining Co. y. Secretary of
Labor, 11 FMSHRC 759, 766 (May 1989), noting that "it is well
settled that the United States, as the sovereign, is immune from
suit except as it consents to be sued and that waivers of its
immunity must be unequivocally expressed." Wagner, 12 FMSHRC at
1184. Consequently, the Commission concluded that, "the
definitions set forth in the Act and the enforcement scheme of
section 105(c) indicate that Congress regarded the Secretary and
MSHA as separate and distinct from the population covered by the
term 'person.,.~ at 1185.
·
The complainants argue that Wagner is not applicable to the
instant proceedings, in that section 103(g) (1) of the Act does
not accord protection to miners who make oral ·complaints as in
Wagner, whereas protection is accorded to the written complaints
herein at issue. This argument is unpersuasive, since the
language of the Act makes no such distinction, nor would such an
interpretation of section 103(g) (1) be consistent with the broad
protection against discrimination provided to complainants in
section 105(c). While the narrow scope of section 103(g) (1)
specifically prescribes procedures by which the Secretary shall
maintain the confidentiality of complainants who raise health
and/or safety violations in writing, the broad language of
section 105(c) (1) clearly expresses Congressional intent that the
universe of protected activity be inclusive of oral and written
complaints: "[n]o person shall . . . in any manner discriminate
against . . . any miner . . . because such miner . . . has filed
or made a complaint . .
(emphasis added)" 30 U.S.C. section
815(c)(1). 4 /
Moreover, the issue of MSHA's sovereign immunity from 105(c)
liability was not before the Court in Wagner, and the Court
affirmed the Commission's decision which held, in part, that

4

/
According to the pleadings, the Secretary did comply
with section 103(g) (1), in that the letter that had been sent to
MSHA had been sanitized to remove all names and references to
individual miners before dissemination at the accident
investigation team pre-inspection meeting.

297

MSHA, having not expressly waived its sovereign immunity, is not
a "person," as included in section 105(c). Accordingly, as the
Commission decision remains the prevailing ~aw, it is concluded
that MSHA is not a "person" subject to liability under section
105(c) of the Act, and that portion of the complaints, herein
seeking relief against MSHA for alleged violations of sections
103(g) (1) and 105(c) of the Act, is hereby dismissed.
Proceedings against Individual Employees of MSHA
The Commission's holding in Wagner, that "MSHA employees and
agents are not 'persons' subject to the provisions of section
105(c), and thus . . . cannot be sued individually under section
105(c) ," Wagner, 12 FMSHRC at 1185, was premised upon its
conclusion that, had Congress intended to render MSHA employees
susceptible to section 105(c) suits, it would have expressly
stated so; moreover, to hold otherwise would run afoul of the
enforcement scheme of section 105(c) respecting MSHA's
investigatory role/authority, as well as relief awarded and
sanctions imposed for violations. ~at 1185, 1186. This
holding was upheld by the Court in Wagner, which concluded that
•[f]inding no indication in the statutory framework of an intent
by Congress to depart from the accepted usage of the term
•person, • . . . MSHA employees acting within the scope of their
authority are agents of the sovereign, and therefore cannot be
liable under section 105(c) .• Wagner, at *6.
The complainants• argument that the rules of respondent
superior under Alabama state law apply to the facts herein at
issue is equally unpersuasive since, as the Commission
recognizes, the cause of action, if any, does not arise under the
Act. 5 / In concluding that it finds no cause of action under
section 105(c) for abuse of power by MSHA employees, the
Commission notes "that an employee whose action is in violation
of his or her duties is not immune from civil suit and possible
punitive action. It is well settled that individuals wronged by
federal agents through abuse of their power may have a cause of
action for damages under state law.• Wagner, 12 FMSHRC at 1186.
~~Wagner, 1991 U.S. App. LEXIS 26336, at *7 (the Court
recognized that claims of injury resulting from the wrongful acts
or omissions of government employees acting within the scope of

5

/ Respondent superior: literally meaning "let the master
answer,• this maxim means that a master is liable in certain
cases for the wrongful acts of his servent, and a principal for
those of his agent. Black's Law Dictionary 1311, 1312 (6th ed.
1990) .

298

their employment are properly brought under the Federal Tort
Claims Act, and analyzed ac·c ording to the rules of respondent
superior in the state wherein the alleged wrong occurred) .
In an alternative analysis, subjecting section 105
provisions to Virginia rules of respondent superior, the Court
then examined the alleged misconduct of the MSHA employee in the
case before it, and characterizing that behavior as an exercise
of "poor judgment," concluded that "{i]n the absence of a
statutory prohibition against such disclosure, there is no sound
basis for the court to conclude that Inspector Sloce exceeded the
bounds of his statutory authority by communicating Wagner's
identity to Wayne Fields and Clinchfield Coal." ~at *6, *7.
The Court did not address the question of whether MSHA employees
acting outside the scope of their authority are subject to suit
under section 105(c), and it is unnecessary to pursue that
question here, since I find nothing in the behavior of the MSHA
employees in question which is materially distinguishable from
the conduct in Wagner, or which would lead me to conclude that .
these individuals acted outside the scope of their authority.
Finally, the Court made clear that it was rejecting a conclusion
that Congress intended for section 105 enforcement procedures to
be governed by applicable state rules of respondent superior
under the Federal Tort Claims Act, ~at *7, and the Court's
reasoning is equally valid against the complainants' arguments in
the instant complaints.
·
Accordingly, as held by the Commission in Wagner, and
affirmed by the Court, MSHA employees cannot be sued
individually under Section lOS(c), and that portion of the
instant complaints alleging liability· of MSHA employees under
lOS(c) is dismissed. 6 /

J?~

Jac eline R. Bulluck
Administrative Law Judge

6

Inasmuch as the Court's holding in Wagner is based on the
/
sovereign immunity of MSHA and its employees, neither expressly
waived by statutory construction nor legislative intent, it is .
unnecessary to address the remaining arguments.

299

Distribution:
Judith Rivlin, Esq., UMWA, 900 15th Street~. Washington, DC 20005
(Certified Mail)
Mr. Tom Meredith, MSHA Supervisor, District 11, 135 Gemini
Circle, Suite 213, Birmingham, AL 35209 (Certified Mail)
Mr. Michael J. Lawless, MSHA District 11 Manager, 135 Gemini
Circle, Suite 213, Birmingham, AL 35209 (Certified Mail)
Mr. Frank Young, MSHA District ll Asst. Manager, 135 Gemini
Circle, Suite 213, Birmingham, AL 35209 (Certified Mail)
Judy McCormick, c/o MSHA, 135 Gemini Circle, Suite 213,
Birmingham, AL 35209-5842 (Certified Mail)
Yoora Kim, Esq., Office of the Solicitor, Department of Labor,
4015 Wilson Boulevard, Room 400, Arlington, VA 22203
(Certified Mail)
/fb

300

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

FEB 1 3 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA),
Petitioner

CnnLPENALTYPROCEEDING
Docket No. SE 96-222-M
A.C. No. 08-00768-05519

v.
Fort Green
IMC-AGRICO COMPANY,
Respondent
DEOSION
Appearances: Sharon D. Calho~ Esq., Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia, for Petitioner;
Patrick S. Casey, Esq., Sidley &:. Austin, Chicago, Illinois, for Respondent.
Before:

Judge Hodgdon

lhis case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor, acting through his Mine Safety and Health Administration (MSHA), against IMCAgrico Company (IMC) pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815. The petition alleges two violations of the Secretary's mandatory health
and safety standards and seeks a penalty of$8,000.00. For the reasons set forth below, I vacate
one citation, affmn the other and assess a penalty of $500.00.
A hearing was held on November 6, 1996, in Bartow, Florida. In addition, the parties
have submitted post-hearing briefs in this matter.

Back&J=ound
IMC is the owner and operator of the Fort Green phosphate mine in Polk County, Florida.
Phosphate is mined by 26 draglines which dig it up and unload it into a pit where it is mixed with
water. The resulting mixture, called "slurry'' or "matrix," is then pumped through pipes to the
processing plant where it ultimately becomes fertilizer. The draglines, which have 60-yard
buckets, and the pumps are electrically powered.

301

Because the phosphate rock is in veins of five or six feet in depth, the draglines have to
be moved as the vein is followed. This in turn requires that the power lines, cables, pumps and
power line poles be moved. The power lines and pumps are moved on a daily basis by
electricians and linemen. The electricians are generally responsible for the power cables on the
ground and the linemen take care of the power lines overhead.
On September 12, 1995, Jennings 0. Gainer had been a lineman for 30 years and had
worked as a first class lineman for IMC for 14 years. On that date, he was assigned to assist
some electricians in attaching power cables from a pwnp to a disconnect switch on a power pole.
To accomplish this, be placed a closed, six-foot, fiberglass, step ladder against the pole and
climbed to the top of it. He then pulled himself up onto the cross ann of the pole, stood up,
grabbed the ground wire with his right band and the far left phase wire with his left hand. He
was not using bot line tools. His actions resulted ~ his being electrocuted.
MSHA Inspector Donald Collier and his superior, Supervisory Inspector Harry L.
Verdier, were assigned to investigate the fatal accident. They arrived at the mine on September
14, 1995. After interviewing witnesses and viewing the scene, four citations were issued, two of
which are involved here.
Both citations state that:
A fatal accident occurred at this operation on September 12, 1995, at about
6:10 p.m. when an employee contacted an energized 4160 volt power conductor.
The employee attempted to climb on the cross ann of the power pole at the No. 4
matrix lift pump, No. 8 dragline side in order to connect the switch gear
conductors to the knife blade disconnects on the power pole cross arm.
The first citation, No. 4301373, alleges a violation of section 56.12017 of the Secretaey's
Regulations, 30 C.F.R. § 56.12017, because "(t]he power circuit was not de-energized and
locked out and hot line tools were not being used." (Govt. Ex. 1.) The second citation, No.
4301374, asserts a violation of section 56.1101,30 C.F.R. § 56.1101, since: "Safe access was not
provided. A 6 foot fiberglass step ladder leaned against the power pole had been used. The
lower cross arm was about 11 feet above the ground. A bucket truck was available at the site but
was not used." (Govt. Ex. 2.)
Fjndiues of Fact and Conclusions of Lm

Citation No. 4301373

Section 56.12017 provides, as pertinent to this case, that "[p]ower circuits shall be
dcenergized before work is done on such circuits unless bot-line tools are used •••. Switches
shall be locked out or other measures taken which shall prevent the power circuits from being
energized without the knowledge of the individuals working on them ...." Everyone agrees that

302

the power line which caused Mr. Gainer's death was not de-energized and that he was not using
bot-line tools. Thus, the parties argue that the issue is whether he was working "on" a ''power
circuit.'' The company contends that he was not because attaching the cables from the lift pump
to the knife blade switch 1 should only have required him to attach the cables to the de-energized,
bottom part of the switch. On the other hand, it is the Secretary's position that "on" in the
regulation means in close proximity to an energized circuit.
IMC's interpretation of the regulation is too constricted. I find that the facts in this case
do comprise a violation of section 56.12017, but not for the reasons advanced by the Secretary.
If there is any doubt as to whether a regulation provides "adequate notice of prohibited or
required conduct, the Commission has applied an objective standard, i.e., the reasonably prudent
person test." BHP Minerals International inc., 18 FMSHRC 1342, 1345 (August 1996). That
test is ''whether a reasonably prudent person familiar with the mi.Qing industry and the protective
purposes of the standard would have recognized the specific prohibition or requirement of the
standard. Ideal Cement Co., 12 FMSHRC 2409,2416 (November 1990)." ld
The regulations do not define the term "power circuit." According to the D_MMRT. the
word "power," in connection with electricity, is "[u]sed to indicate the electric current in a wire
...." DMMRT at 855. It defines the word "circuit" as: "A conducting part or a system of
conducting parts through which an electric current is intended to flow." ld at 210. Thus, a
"power circuit" is a conducting part or a system of conducting parts through which electric
current is flowing. This comports with the definition of "power circuit" offered by the
Respondent's expert, Stanley S. Burns, at the hearing. He stated: "An electric circuit requires a
conductor, some type of loads, pump. lbat's an ~lectric circuit where the current flows." (Tr.
228.)
Where the company's argument fails, however, is in its attempt to limit application of the
regulation to only those circuits through which current is flowing. Bums testified that a circuit
with an open switch is no longer a power circuit because it would not have current flowing
through it. In sucJ:t a situation, the company maintains that the regulation does not apply because
work on a circuit with an open switch would not be work on a power circuit. Such an
interpretation nullifies the purpose ofthe regulation, which is to prevent miners from being
electrocuted.
Following IMC's argument to its logical conclusion would mean that anytime a power
circuit had a switch in it, the regulation could be avoided by opening the switch. However, one
ofthe ways that the regulation prevents electrocution is by requiring that a switch be locked out
1 A knife blade switch is one •which opens or closes a circuit by the contact of one or

more blades between two or more flat surfaces or contact blades.• Bureau of Mines, U.S.
Department oflnterior, A Dictionary ofMining, Mineral, and Related Terms 614 (1968)
(DMMRT).

303

to "prevent the power cir~uits from being energized without .the knowledge ofthe individuals
working on them." Merely opening a switch would not serve this function. Accordingly, 1
conclude that a reasonably prudent person familiar with the mining industry would recognize that
the tenn "power circuit" in the regulation means an electrical circuit which is capable of having
current flow through it and that to work on such a circuit, the circuit must be de-energized and
locked out.
Therefore, I find that Gainer was assigned to work on a power circuit within the meaning
of the regulation, even though it was not energized because the knife blade switch was open. If
he had remained below the open switch to connect the cable, as the job was normally performed,
he probably would not have been electrocuted.2 However, the facts of this case are that Gainer
did not remain below the open switch, but climbed above it. Even the company's expert
witnesses agreed that to go where Gainer went the whole system should have been de-energized?
Since it was not, I conclude that the company violated the regulation.
In reaching this conclusio~ I am aware no one in authority had any idea that Gainer
would climb up on the cross member to attach the cable and, ind~ could not r~nably have
been expected to anticipate that he would do such a foolish thing. However, "the Mine Act
clearly contemplates that a violation may be found where the wrongful act is performed by
someone other than the operator." Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 716
(D.C. Cir. 1989). Thus, ''the Act's scheme of liability provides that an operator, although
faultless itself, may be held liable for the violative acts ofits employees . •.." Bulk
Transportation Services, Inc., 13 FMSHRC 1354, 1359 (September 1991). Accord Fort Scott
Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1115 (July 21, 1995). Consequently, IMC is liable
for Gainer's failure to de~ergize the system before climbing onto the cross member.
SiiJUficant and Substantial
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(dX1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other·
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violatio~ 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 (April1981 ).
2

No evidence was presented as to whether the switch was locked out or not.

3

Lee Barnes, the electrical instrumentation supervisor at Fort Green, in response to a
question as to whether the system would have to be de-energized if someone was going to climb
up on the cross member of the pole, stated, 11 [y]es, it would.• (fr. 215.) Mr. Bums, in response
to a question whether he would de-energize the line coming into the top of the switch if he were
climbing up on the cross bar, said, 11 [y]es, I would." (Tr. 250.)

304

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 10304 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015,2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of"continued normal mining
operations." U.S. Steel Mining Co., Inc. , 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 1007 (December 1987).
There can be little doubt that this violation was S&S. "Clearly, it was a significant
contributing cause to the fatal accident." Walker Stone Company, Inc., 16 FMSHRC 48, 53
(January 31, 1997). Accordingly, I conclude that the violation was "significant and substantial."

The inspectors concluded that this violation resulted from "moderate" negligence on the
part of the operator. They concluded this because Ban,tes closed the circuit breaker which
energized the circuit and he did not instruct Gainer to make sure he used the bucket truck because
the circuit was energized. Supervisor Inspector Verdier testified:
Well, we felt after the ~tement that Mr. Barnes made that he wasn't sure,
but felt he was the one who threw the breaker that really energized the line.
Also, we didn't feel that Mr. Barnes probably told Mr. Gainer to take the
bucket truck and go down there and help them and make sure you use the bucket
truck and use your hot line tools. We just didn't feel there was enough
instructions given.
(Tr. 92.)

The evidence does not support the inspectors' feelings. The Secretaiy has not shown that
the operator did anything that a reasonably prudent person would not have done, or failed to do
anything that a reasonably prudent person would have done. Consequently, I conclude that the
·
operator was not negligent in this case.
The evidence is clear that Gainer was negligent, indeed, that he acted with reckless
disregard. However, since Gainer was not in a supervisory position, his negligence cannot be
din:ctly imputed to the operator. Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (March
1988); Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August 1982). Fmther, the evidence is
uncontroverted that IMC's supervising, training and disciplining of its employees was more than
adequate. Finally, no supervisor was present when the violation was committed. Cf Midwest

305

Material Co., 19 FMSHRC 30, 35 (January 21 , 1997) (foreman watched the violation being
committed by an employee).

There is no evidence to support the inspectors' apparent assumption that Gainer was not
aware that the power line was energized. Their accident report states that at the No. 716
substation, Gainer:
removed his grounding jumpers and tag, then closed the disconnects above the circuit
breaker.
Lee Barnes~ electrical foreman, who was also at the substatio~ instructed
Gainer to return to the No. 4 matrix lift pump locatio'l with the bucket truck to
assist in connecting the conductors to the bottom of the disconnects, since all that
was available at the pump was a six foot step ladder. Barnes then closed the
circuit breaker for Circuit A, energizing the power line, and Gainer left the
substation.

(Govt. Ex. 8, p. 2.)
If this were the only evidence available, it would be unreasonable to conclude that Gainer,
a lineman with 30 years experience, the last 14 of which had been at Fort Grce~ did not know
that when he removed his jumpers and tag and closed the disconnects that the line was going to
be energized. Or that he did not see Barnes close the circuit breaker. Or that telling him to take
the bucket truck to assist in connecting the conductors to the disconnects because all that was
available was a six foot step ladder, did not put him on notice that the bucket tJUck should be
used to make the connections.• But this was not all of the evidence presented at the hearing.
Barnes testified that he told Gainer that he was going to close the circuit breaker and that
Gainer acknowledgod that he heard him. He further testified that when he closed the circuit
breaker it made a "loud, mechanical-type noise" like the "[s]lamming together of contacts" and
that Gainer was present when that occurred. (Tr. 200.) Barnes related that he then "asked him to
take the bucket truck to assist in hooking up the rouser wires because my electricians could not
reach the disconnects off ofthe step ladder." (Tr. 201.) He said he told Gainer to take the bucket
truck "[b]ecause we couldn't reach them off the step ladder. That was the best way of getting the
height we needed to hook the wires up." {/d) This testimony was corroborated by Myers, who
was also present at the time.

• Robert E. Myers, Electrical and Instrumentation Superintendent, stated that while
electricians normally connected the leads to the disconnect switch from a six-foot step ladder,
•on the higher ones the line crew does.• (Tr. 169-70.) In other words, the linemen were used
when the connections could not be made from a ladder, but necessitated the use of a bucket truck.

306

Based on this evidence, I fmd ii inconceivable that Gainer, an experienced lineman, did
not know that the system had been energized or that he was supposed to use the bucket truck,
which was insulated, to attach the cables to the disconnect. No one knows why he did not make
the connections from the bucket truck the way he had hundreds of times in the past. Witnesses at
the scene testified that there was no reason the truck could not have been used. Whatever reason
Gainer decided to park the truck and climb up a ladder which he already knew was too short, and
which he verified when he climbed up it, it was not the result of any negligence on the part of the
operator.
I find that the operator, through Barnes, exercised diligence and could not have known
what Gainer was going to do. Therefore, I conclude that there was no negligence on the part of
IMC.
Citation No. 4301374

Section 56.1101 states that "[s]afe means of access shall be provided and maintained to
all working places.'' Because this regulation is found under the general heading "Travelways,"
the Respondent argues that the citation should be vacated because the facts do not meet the
regulations' definition oftravelways. This argument is not persuasive. However, I conclude that ·
the SecretaJy has not shown that the company failed to provide a safe means of access in this
case.

Section 56.2 of the Regulation, 30 C.F.R. § 56.2, defines "travelway" as "a passage, walk
or way regularly used and designated for persons to go from one place to another." The company
maintains that a travelway is not involved here because the ladder, the pole and the cross member
were not regularly used and designated for persons to go from one place to another. In the first
place, not all of the regulations found in Subpart J, "Travelways," involve travelways. See e.g.,
30 C.F.R. § 56.11003 (Construction and maintenance ofladders), 30 C.F.R. § 56.11007
(Wooden components ofladders), 30 C.F.R. § 56.11027 (Scaffolds and working platforms). In
the second place, it is undisputed that at the Fort Green mine a six foot step ladder is a way
regularly used and designated for electricians to connect leads from the disconnect switch on an
electrical pole. (Tr. 170.) Accordingly, I conclude that the regulation does apply to these facts.
lbat does not mean, however, that the company violated the regulation. The
Commission, in construing identically worded regulations, has held that:
the standard requires that each "means of access" to a working place be safe. This
does not mean necessarily that an operator must assure that every conceivable
route to a working place, no matter how circuitous or improbable, be safe. For
example, an operator could show that a cited area is not a "means ofaccess''
within the meaning of the standard, by proving that there is no reasonable
possibility that a miner would use ihe route as a means of reaching or leaving a
workplace.

307

Homestake Mining Company, 4 FMSHRC 146, 151 (February 1982); The Hanna Mining
Company , 3 FMSHRC 2045,2046 (September 1981).

IMC provided two means of access to the electricians and linemen attaching leads to
disconnect switches, a six foot step ladder and a bucket truck. In connection with the use of the
ladder, the company's Safety Manual required that the step ladder be fully open and the spreader
bars locked into place, that a safety belt be used when working at heights above eight feet and
that the miner not climb higher than the second step from the top of the step ladder. (Tr. 160-61,
Resp. Ex. A, pp. 7-8.) .
Gainer was sent to assist the electricians with the expectation that he would use the
bucket truck to make the connections. For reasons known only to him, he did not. Instead, he
used a step ladder in its folded up position and resting against the pole. This violated the safety
requirements set out above. Then he apparently attempted to pull himself up on the cross
member.
The two means of access provided by the company, when properly used, were safe means
of access. Gainer's method of access was highly improbable and against company rules. It was
not a means of access within the standard, in fact the company's safety rules prohibited it as a
means of access. Consequently, I conclude that th~ company did not violate section 56.11001.
CivU Pcaalty Assessmcat

The secretary has proposed a civil penalty of $5,000.00 for the violation of section
56.17012. However, it is the judge's independent responsibility to determine the appropriate
amount of penalty, in accordance with the six penalty criteria set out in section 110(i) ofthe Act,
30 U.S.C. § 820(i). Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7" Cir. 1984);
Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996).
In connection with the criteria, the parties have stipulated that: the proposed penalty will
not affect the operator's ability to continue in business; the operator demonstrated good faith ..
abatement; the operator does not have an excessive history ofprior violations; and, the size of the
Fort Green mine is approximately 480,862 production tons or hours worked per year. (Jt. Ex. 1.)
I further find that the company's history of prior violations is very good in that it bad only
received II non-S&S citations in the two years preceding the instant violation, (Govt. Ex. 10),
and it had been awarded a Certificate ofAchievement in Safoty by MSHA under its Sentinels of
Safoty Program ''for its outstanding safety record in 1994[,) 334,457 employee-hours worked
without a lost workday injury," (Resp. Ex. C.). In addition, as discussed above, the violation was
not caused by negligence on the part of the operator. On the debit side, the gravity of the
violation was very serious in that it was not only "significant and substantial" but also resulted in
the death of a miner.

308

The Secretary's proposed penalty apparently consider~ all of the above, except that the
penalty assessment indicates that the violation resulted from the operator's moderate degree of
negligence. (Govt. Ex. 9.) Taking the six criteria into consideration, including the finding of no
negligence, I conclude that $500.00 is an appropriate penalty.
ORDER
Accordingly, Citation No. 4301373 is MODIFIED by reducing the degree of negligence
from "moderate" to "none.'' and is AFFIRMED as modified. Citation No. 4301374 is
VACATED. IMC-Agrico Company is ORDERED TO PAY a civil penalty of$500.00 within
30 days of the date of this decision. On receipt of payment, this proceeding is DISMISSED. ·

~*"'Uih~

T. Todd Hodg n
Administrative Law Judge

Distribution:
Sharon D. CalhoWl, Esq., Office of the Solicitor, U.S. Dept of Labor, 1371 Peachtree St., NE.,
Atlanta, GA 30367 (Certified Mail)
Patrick S. Casey, Esq., Sidley & A~ One First National Plaza, Chicago, IL 60603 (Certified
Jvlail)
.
/It

309

PBDBRAL MntB SAFBTY Alm BBALTH RZVXBW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESIUlG PIKE
FALLS CHURCH, VlaGINIA 22041

FEB 1 3 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 96~231-M
A. C. No. 24-02081-05503
Wash Plant

K H CONCRETE,
Respondent
DICl:SION

Appearances :

Gary L. Grimes, Conference and Litigation
Representative, U.S. Department of Labor,
Mine Safety and Health Administration,
Denver, Colorado, for the Petitioner;
Christopher A. Bowles, Esq . , Ennis, Montana,
for the Respondent.

Before:

Judge Feldman

This matter was heard in Butte, Montana, on November 14,
1996 . The parties• post-hearing briefs have been considered in
the disposition of this proceeding . Thia matter concerns a
petition for assessment of civil penalty filed by the Secretary
of Labor against the respondent pursuant to section 110(a) of the
Federal Mine Safety and Health Act of 1977 (the Act), 30 U. S . C. §
820(a). The petition seeks to impose a civil penalty of
$8,500.00 for an alleged violation of the mandatory safety
standard in section 56.14107(a), 30 C.F.R. § 56.14107(a), for an
inadequately guarded tail pulley that contributed to a serious
accident on September 20, 1995 . As a result of this accident the
victim, Colleen Croy, sustained an amputation injury to her right
arm. Section 56 . 14107(a) provides:
Moying machine parts shall · be guarded to protect
persons from contacting gears, sprockets, chains,
drive, bead, tail, and takeup pulleys, flywheels ,
couplings, shafts, fan blades, and similar moving parts
that can cause injuXY . (Emphasis added) .
A.

Statement of Facts

Kevin Hokanson owns and operates the Wash Plant for K H
Concrete (KH) , a sand and gravel facility located in a remote
area in Ennis, in Madison County, Montana . At the time of

310

Ms. Croy's accident, KH employed approximately three full-time
and six part ~ time employees. Two of these full time positions
were held by Colleen Croy and her husband, Hue Croy.
Colleen Croy was hired by KH as a laborer on September 1,
1995. Ms . Croy generally arrived at the wash plant at 7:00 a.m.
She worked alone at the remote wash plant site, ten to twelve
hours per day, five days per week. Her only means of
communication was her use of a two-way radio that was located in
her pick-up truck. Her job duties included overseeing the
complete operation of the wash plant. In this regard, she
operated the front-end loader to dump extracted material into a
hopper. She then monitored the material as it was transferred to
a feed belt where it was conveyed to the wash plant for cleaning
and separation into sand and various sizes of gravel.
Prior to the September 20, 1995, accident, KH had not filed
a Legal Identity Report with the Mine safety and Health
Administration (MSHA) . 1 Consequently, Ms. Croy had not received
MSHA approved training regarding safe work practices and hazard
recognition. Thus, she was not familiar with the MSHA safety ·
regulations that required her to de-energize the conveyor system
prior to cleaning and adjusting the belts.
Ms. Croy testified that there were two tail pulleys at the
plant. One of the tail pulleys was unguarded. The other tail
pulley, the site of the accident, was partially guarded with a
screen that did not completely cover the tail pulley. Ms. Croy
did not believe it was necessary to de-energize the conveyor · or
remove the guarding while making adjustments on the pulleys.
In fact, Ms. Croy•s husband had instructed her to remove mud and
debris from the tail pulleys while they were running by •banging
the drum• with a wrench to dislodge dirt so that the pulleys
would run smoothly.
Ms. Croy arrived at work at approximately 7:00 a.m. on
September 20, 1995. She was scheduled to work alone throughout
her shift. She began her daily routine of starting up the wash
plant. Upon starting the conveyor, Ms. Croy noticed the belt on
the trap was •walking• back and ~orth due to a damaged splice
that allowed dirt to trickle through the belt into the tail
pulley. Realizing she needed to correct the condition, Ms . Croy,
holding a wrench in her right hand, began hitting the drum in an
•section 109(d) of the Mine Act provides, in pertinent part:
Each operator of a coal or other mine subject to this
Act shall file with the Secretary the name and address
of such mine and the name and address of the person who
controls the mine . 30 U.S. C. § 819(d).

311

attempt to clear the tail pulley of dirt. Ms. Croy was able to
contact the drum with the wrench through an opening in the
guarding screen.
As Ms. Croy leaned forward to bang on the drum, her shirt
sleeve was caught by the moving damaged belt splice, pulling her
right arm into the pinch point between the belt and the pulley,
drawing her body up to the point where the conveyor belt was up
to her neck. She reached in with her left arm in an effort to
push the moving conveyor belt away from her right shoulder and
face. As she withdrew her right shoulder away from the tail
pulley, she realized her right arm had been severed. Ms. Croy
then carried her severed arm to her pick-up. In her haste and
apparent shock, she backed her pick-up truck into a pit.
Realizing the truck was stuck in the pit, Ms. Croy radioed for
help. Her transmission was received by a passing truck driver
who radioed to his base station. The base station contacted the
authorities and an ambulance was dispatched to the plant. In the
meantime, Ms. Croy exited her truck, laid down on the ground, and
waited for help to arrive.
In the days following this incident, MSHA received several
telephone calls advising it of a serious accident that had
occurred in a local gravel pit. However, as noted above, MSHA
was not aware of the existence of the KH facility. After making
several telephone inquiries, MSHA Inspector Seibert Smith
determined the name and location of the mine where the accident
had occurred .
On October 31, 1995, inspector Smith and Montana State Mine
Inspector Joe Donaldson arrived at KH's plant to perform an
accident investigation. As a threshold matter, Smith issued a
citation, which is not in issue in this proceeding, for the
failure of K H Concrete to notify MSHA of its intent to mine. A
Legal Identity Report was subsequently filed with MSHA .
Ms. Croy's contact with the tail pulley damaged the existing
guarqing. Consequently, the guarding at the accident site had
been replaced prior to Smith's arrival at the plant. Thus, Smith
was unable to observe the guarding as it existed at the time
of the accident. During the course of the investigation,
interviews were conducted with Kevin Hokanson and Ms. Croy.
Citation No. 4352245 was issued after it was determined that the
tail pulley guard at the accident site, located on the feed
conveyor to the wash plant, had been inadequate. The guard was
inadequate because it did not extend a sufficient distance to
cover the moving conveyor parts. Smith concluded that the cited
violative condition was a major contributing factor in Ms. Croy•s
accident. In view of the severity of Ms. Croy's injury, the
cited violation was characterized as significant and substantial
and the gravity of the violation was considered to be serious.

312

Hokanson opined that the guarding at the tail pulley at the
accident site ·was sufficient to prevent unintentional contact
with moving parts that could occur as a result of stumbling or
falling. However, he conceded that there was a space in the
guard that would permit intentional contact of the drum with a
wrench. (Tr. lll). After the accident Hokanson hired someone to
install a guard to prevent any further access to moving parts.
(Tr. 112) .
B.

Findings and Conclusions
1. · Fact of Occurrence

The thrust of the respondent's defense to Citation
No. 4352245 is that section 56.14107(a) is only intended to
prevent unintentional contact with moving parts. Thus, the
respondent argues that this mandatory safety standard is not
violated in instances where guarding is deliberately circumvented
to access a moving pulley, through a space in the guarding, for
maintenance purposes.
Section 56.14107(a) requires guarding to protect persons
from *moving [machine] parts that can cause injury. • In
analyzing the applicability of this safety standard the
Commission, in dealing with. a similar guarding standard governing
underground mining, has stated:
We find that the most logical construction of the
standard is that it imports the concepts of reasonable
possibility of contact and injury, including contact
stemming from inadvertent stumbling or falling,
momentary inattention, or ordinary human carelessness.
In related contexts, we have emphasized that the
constructions of mandatory safety standards involving
miners' behavior cannot ignore the vagaries of human
conduct. ~, A...SL- 1 Great Western Electric, 5 FMSHRC
840, 842 (May 1983); L9ne Star Industries. Inc., 3
FMSHRC 2526, 2531 (November 1981). Applying this test
requires taking into consi4eration all relevant
exposure and injury variables, ~, accessibility of
the machine parts, work areas, ingress and egress, work
duties, and as noted, the vagaries of human conduct.
Under this approach, citations for inadequate guarding
will be resolved on a case-by-basis. Tbomas Brother
Coal Company. Inc., 6 FMSHRC 2094, 2097, (September
1984) .

313

In applying a case-by-case approach, I note that KH had
three full-time employees at the time of the accident. The
respondent admits that two of these employees, namely Mr. and
Ms. Croy, routinely contacted the moving drum for maintenance
purposes through a space in the guarding. Consequently, the
respondent had constructive, if not actual, knowledge of this
dangerous practice. The guarding in issue was installed in such
a manner so as to permit this dangerous practice. Thus, the
nature of the guarding, regardless of whether the space was
intentionally left open, was tantamount to an attractive nuisance
in that it encouraged, rather than prevented, contact with moving
parts. A regulation must be interpreted to harmonize rather than
conflict with its intended pu~se. Emery Mining y. Sec'y of
Labor, 744 F.2d 1411, 1414 {10h Cir. 1984). A guarding
condition that facilitates such hazardous conduct is clearly a
condition intended to be prohibited by the cited mandatory
standard. Accordingly, the Secretary has established a violation
of section 56.14107{a).
2. Significant and Substantial
A violation is properly designated as significant and
substantial (S&S) in nature if, based on the particular
facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to [by the violation] will
result in an injury or an illness of a reasonably serious nature.
Cement Diyision. National Gypsum, 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1 {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 under~ying 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 [by the violation] will result in an
injury; and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious nature.
6 FMSHRC at 3-4.
Thus, a violation is properly designated as S&S if there is
•a reasonable likelihood that the hazard contributed to will
result in an event in which there is [a serious] injury.• ~
Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984). It is the
contribution of a violation to the cause and effect of a hazard
that must be significant and substantial. United States Steel
Mining Company. Inc., 7 FMSHRC 1125 (August 1985) citing~

314

Steel Mining Company. Inc., 6 FMSHRC 1866, 1868 (August 1984) and _
U.S. Steel Mining Company. Inc., 6 FMSHRC 1573, 1574-75 (July
1984) .
Here, the hazard contributed to, and made possible by, the
violation, ~' contact with moving parts, resulted in an actual
event, ~, a serious accident . Accordingly, the propriety of
the S&S designation is evident. Similarly, it is clear that the
gravity of the violation was extremely serious.
3. Negligence
Under the · penalty criteria in section 110{i) of the Act,
30 U.S.C . § 820{i), the degree of an operator's fault
/
{negligence), or lack thereof, is a factor to be considered in
assessing the appropriateness of a civil penalty . Asarco. Inc.,
8 FMSHRC 1632, 1636 (November 1986). Ordinarily, the conduct of
a rank-and-file miner is not imputable to the operator in
determining negligence for penalty purposes . Southern Ohio Coal
~, 4 FMSHRC 1459, 1464 (August 1982).
Rather, the operator's
supervision, training, and discipline of the miner are the
relevant factors. ~; Western fuels-Utah. Inc., 10 FMSHRC 256,
261 (March 1988). Thus, where supervision an4 training are
lacking, a rank-and-file miner's negligence may be imputed to an
operator.
In the instant case, the respondent cannot escape the
inadequate training provided to Ms. Croy by simply explaining
that the training was provided by another employee. As
previously noted, the respondent's operation was not a labor
intensive endeavor employing hundreds of people. Thus,
Hokanson's assertion that he did not know that Ms. Croy was
instructed to access the moving drum with a wrench is ·
unpersuasive.
In any event, regardless of his actual knowledge, as the
operator, Hokanson is responsible for the training of Ms. Croy.
His failure to provide adequate training with regard to the
hazards associated with moving conveyor parts provides a basis
for the imputation of Ms. Croy's high negligence . Similarly,
Hokanson's failure to adequately supervise Ms. Croy who, as a
recent hire, was left alone at this remote work site, provides an
additional basis for the imputation of the victim's negligence to
the respondent .
Notwithstanding the high negligence imputed from Ms. Croy,
Hokanson's own conduct is indicative of high negligence.
Hokanson's failure to provide meaningful employee training and ·
his lack of recognition of the hazards associated with . inadequate
guarding and unsafe maintenance practices constitutes aggravated
and unjustifiable conduct.
·

315

4 . Penalty Assessment
The Secretary proposes a civil penalty 9f $8,500.00 for
Citation No. 4352245. In the event of liability, the respondent
seeks a reduction in the proposed penalty. 2 In determining the
amount of penalty to be imposed, I must consider the civil
penalty criteria set forth in section 110{i) of the Act , 30
U.S.C. § 820(i) . This criteria includes considerations such as
the appropriateness of the penalty to the size of the operator,
the degree of the operator's negligence and the gravity of the
violation. As noted above, the underlying degree of negligence
attributable to the respondent in this matter is high . As the
respondent acknowledges, it has •been made clear, through
testimony and the nature of the accident, that the training
offered by KH and Mrs . Croy's husband, a KH employee , . . . ~as
not adequate.• (Resp. post-hearing br . at p.S). With regard to
gravity, the serious consequences of the cited violation are
clear .
In mitigation, the respondent points out that KH is
a very small operator located in the small town of Ennis , in
southwestern Montana. Hue Croy is still employed by KH and the
Croys are close family friends of the Hokansons. The families
have agonized over Ms. Croy's injury and they must witness her
overcoming her impairment on a daily basis .
I empathize with the emotional distress caused by this
unfortunate accident. I also recognize that hazards are more
easily perceived through the benefit of hindsight. However,
in the final analysis, I am constrained to apply the applicable
penalty criteria in section 110(i). The lack of supervision and
training provided to Ms. Croy overshadows the mitigation sought
by the respondent and precludes a large reduction in the proposed
penalty. Accordingly, in recognition of the small size of the
respondent's operation, the civil penalty proposed in this matter
shall be moderately reduced to $6,500 . 00.

2

The respondent's contention that the $8,500.00 civil
penalty proposed by the Secretary is high in relation to the
maximum civil penalty of $10,000.00 specified in section 110(a)
of the Act , 30 U.S.C. § 820{a), is misplaced . {Ex. R-1).
Section 110(a) was amended in November 1990 to increase the
maximum civil penalty for each violation from $10,000 . 00 to
$50,000.00. Pub.L . 101-508, Title III, § 3102(1), Nov. 5, 1990,
104 tat. 1388-29.
·

316

ORDER

In view of the above, Citation No . 4352245 XS APPXRMED.
XT XS ORDERED that the respondent pay a civil penalty of
$6,500.00 within 30 days of the date of this decision. Upon
receipt of timely payment, this case XS DXSMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Gary L. Grimes, Conference and Litigation Representative, Mine
Safety and Health Administration, P.O. Box 25367/M/NM, Denver, Co
80225-0367 (Certified Mail) ·
·
Margaret A. Miller, Esq., Kristi Floyd, Esq . , Office of the
Solicitor, U.S. Dept. of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716 {Certified Mail) ·
Christopher Bowles, Esq., P.O. Box 687, Ennis, MT 59729
{Certified Mail)
/mea

317

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

FEB 1 4.1997
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 94-1199
A.C. No . 15-14959-03561

v.

Docket No . KENT 94-1200
A.C. No. 15-14959-03562

BROKEN HILL MINING COMPANY,
Respondent

Docket No . KENT 95-240
A.C. No . 15-14959-03569
Docket No. KENT 95-310
A. C. No . 15-14959-03570
Mine No. 3
DECI:SI:ON

Appearances:

Thomas A. Grooms, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for
the Petitioner;
No appearance for Respondent.

Before:

Judge Maurer
STATEMENT or THE CUE

These proceedings concern proposals for assessment of civil
penalty filed by the petitioner against the respondent p~rsuant
to section 110(a} of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking a total civil penalty
assessment of $26 , 300 for eight alleged violations of the
mandatory safety standards found in 30 C.F.R. Part 75 .
The respondent contested the violations and requested a
hearing. Pursuant to notice, a hearing was convened in
Paintsville, Kentucky; on January 9, 1997, and while the
petitioner appeared, the respondent did not. In view of the
respondent's failure to appear, the hearing proceeded without
them . For reasons discussed later in this decision, respondent
is held to be in default, and is deemed to have waived its
opportunity to be further heard in this matter.

318

I:SSVE

The issue presented in these cases is whether the petitioner
has established the violations cited, and, if so, ~he appropriate
civil penalty that should be assessed for the violations.
MSHA's CASE

The petitioner presented oral and documentary evidence on
the record at the hearing through the inspectors who issued the
citations and orders at bar. Based on all the evidence
presented, I conclude and find that the violations have been
established, and accordingly, the contested citations/orders are
affirmed as issued.
RBSPONPENT' S PA1LtJRE TO APPEAR AT THE HBAR1NG

The record in this case indicates that after numerous
unsuccessful attempts to contact Mr. Hobart Anderson, the
President of Broken Hill Mining Company, by telephone, to set-up
a trial date in these matters, a Notice of Hearing dated
December 19, 1996, setting these cases down for hearing in
Paintsville, Kentucky, on January 9, 1997, was r~ceived by
respondent on December 23, 1996. A green postal receipt card for
certified mail is included in the record of this case.
Mr. Anderson has somewhat of a track record at the
Commission for unceremoniously dropping out of participation in
these cases short of their conclusion. Relatively recently, on
May 3, 1996, the Commission had occasion to dismiss his appeal
(direction for review vacated) in Docket No. KENT 94-972 for his
failure to file a brief or proffer a reason for his failure to do
so. Broken Hill Mining Co .. Inc., 18 FMSHRC 679 (1996).
As previously stated above, the hearing proceeded in the
respondent's absence after waiting an additional hour beyond the
scheduled starting time. The Secretary put in his case and then
by counsel, moved that a default judgment be entered against
the respondent pursuant to Commission Rule 66(b), 29 C.F.R.
§ 2700.66(b), 1 and that the eight citations/orders at bar be
affirmed and that the proposed civil penalty of $26,300 be
assessed against the respondent.

1

/29 C.F.R. § 2700.66(b) provides as follows:
Failure to attend hearing. If a party fails to attend a
scheduled hearing, the Judge, where appropriate, may find the
party in default or dismiss the proceeding without issuing an
order to show cause.

319

Under the circumstances in this record, I conclude and find
that the respondent has waived its right to be heard further in
this matter and that it is in default, and that the violations,
as alleged, have been proven by a preponderance of the evidence,
and that it is appropriate to assess the respondent the proposed
civil penalty of $26,300.
ORDER
Respondent is ORDERED TO PAY a civil penalty of $26,300 to
MSHA within 30 days of the date of this decision and upon receipt
of payment, this matter is DISMISSED.

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
Hobart W. Anderson, President, Broken Hill Mining Company, Inc.,
P.O. Box 356, Sidney, KY 41564 (Certified Mail)
/mh

·.

320

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

'"FEB 2 0 1997
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 96-208-M
A. C. No. 42-01975 - 05522
Docket No. WEST 96 - 209-M
A. C. No. 42-01975-05523

LAKEVIEW ROCK PRODUCTS INC.,
Respondent

Docket No. WES.T 96 - 262-M
A. C. No. 42-01975-05524
Lakeview Rock Products
DECISIONS

Appearances:

Ann M.

Noble, Associate Regional Solicitor, Office
of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for the Petitioner;
Gregory M. Simonsen, Esq., Kirton & McConkie, Salt
Lake City, Utah, for the Respondent.

Before:

Judge Koutras
Statement of The Proceedings

These proceedings concern proposals for assessment of civil
penalties 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.S. § 820(a), seeking civil penalty assessments for
fourteen (14), alleged violations of certain safety standards
found in Part 56, Title 30, Code of Federal Regulations. The
respondent filed timely answers and contests and hearings were
conducted in Salt Lake City, Utah. The parties filed posthearing briefs, and I have considered their arguments in the
course of my adjudication of these matters.
Agplicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, Pub. L.
95-164, 30 u.s.c. § 801 ~ ~-

2.

Section 110(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 29 C.F.R.

321 '

§

§

2700.1 ~ ~-

820(i).

Issues
The issues presented in these cases are (1) whether the
conditions or practices cited by the inspectors constitute
violations of the cited mandatory safety standards, (2) whether
some of the alleged violations were "Significant and Substantial"
(S&S ) , (3) whether some of the alleged violations were the result
of an unwarrantable failure by the respondent to comply with the
cited· standards, and (4) the appropriate civil penalties to be
assessed for the violations, taking into account the civil
penalty assessment criteria found in section 110(i) of the Act.
Additional issues raised by the parties are discussed and
disposed of in the course of these decisions.
Stipulations
1. The respondent stipulated that it is
subject to the Mine Act, and with the exception of
the violations that concerned equipment that was
off mine property, the respondent did not dispute
the fact that MSHA had jurisdiction to inspect its
mine site (Tr. 6).
2. The parties stipulated to the
admissibility of the petitioner's exhibits, marked
P-1, through P-43 (Tr. 15-16).
Petitioner's Evidence and Testimony
Section 104(a) Ms&s• Citation No. 3908559,
August 30, 1995, cites an alleged violation of 30
C.F.R. 56.14100(a), and the cited condition or
practice states as follows {Exhibit P-36; Docket
No. WEST 96-262-M).
The driver of the white water truck #20052
did not perform a proper safety inspection on the
truck before placing it into service on day shift
8-30-95 . The driver was not supplied with the
company equipment safety check forms and the pit
manager had no records for this truck in his
files.
MSHA Inspector Ronald Pennington, testified that he issued
the citation after the driver told him that he had not completed
a safety check prior to starting up the truck, and he was not
aware that Mr. Pennington had issued another citation five
minutes earlier for an inoperative horn on the truck. The driver
informed him that he basically only checked the engine oil. The
driver also informed him that he had no "slips" to verify any
inspection and that there were none available anywhere {Tr . 1921) .

322

Mr. Pennington stated that the driver was operating the
truck watering the roadways. He stated that the failure to
inspect the truck "makes it too easy for people to run defective
equipment." There is a lot of traffic in the pit, the roads are
dusty, and truck drivers are walking around. The driver did not
know the horn was inoperative because he didn't check it (Tr. 23,
25) .
Mr. Pennington stated that with an inoperative horn there
was a good chance of an accident because there would be no means
of warning anyone. if the truck is running away or about to be
involved in a collision. He believed that it was reasonably
likely that an injury or fatality would result from these
hazards, particularly with the presence of pedestrians on the
roadways (Tr. 22-24).
Mr. Pennington confirmed that he reviewed the respondent's
prior citation record for not performing safety checks and found
at least four since 1991 (Tr. 26). He concluded that the
negligence .was moderate because the driver checked the oil as he
was instructed to do (Tr. 27).
On cross-examination, Mr. Pennington could not recall who
accompanied him on the inspection, and he did not know the
driver's name and indicated that "he was new and a real young
kid" (Tr. 30). The truck was moving forward at "maybe 5 to 10
miles an hour, I have no idea• (Tr. 36). He estimated that the
truck was half filled with water, and the brakes were
operational. He confirmed that the respondent submits quarterly
reports, but could not recall seeing an inspection record for the
cited truck at a prior hearing (Tr. 4~-41).
Mr. Pennington stated that the mine has steep hills and
grades with a lot of truck loading traffic. He described the
roads as "fairly wide" at an average width of 40 to 50 feet, and
they are all two-way roads. The trucks are 8 to 10 feet wide
(Tr. 47•52). He did not ask the pit manager, Scott Hughes, for
any records, but did ask the people who accompanied him on the
inspection (Tr. 53). He extended the abatement date 'and was
informed that a new form would be prepared for each truck with
instructions to do the inspections (Tr. 57).
Section 104{a) "S&S" Citation No. 3908687, November 16,
1995, as modified, cites an alleged violation of 30 C.F.R.
56.6132(a) (6), and the cited condition or practice states as
follows (Exhibit P-1; Docket No. WEST 96-208-M) :
The pit manager for Lakeview Rock Products failed
to post the explosive magazine with the
appropriate United States Department of
Transportation placards and other warning signs
that indicated the contents of the facility.
Although this magazine was located on the adjacent
Foss Lewis property, a delivery receipt found
inside showed that explosives were delivered to
Lakeview Rock Products on 10-27-95. Lakeview has
323

an employee tha t is trained and experienced in the
use of explosives , and knows how to care and
maintain an explosive storage f~cility . Employees
at the Foss Lewis Sand and Gravel state that the
Lakeview pit manager and t he driller blaster,
r egu larly enter the magazine when blasting is done
at the Lakeview Pit. Unknown persons were using
the magazine area for rifle target practice as
evidence by spent rifle cartridges found within 35
feet of the magazine. Two boxes of spent
cartridges were found insi de the magazine .
Section 104(a) non-"S&S" Citation No. 3908688, November 16,
1995, as modified, cites an alleged violation of 30 C. F.R.
56.6101(a) , ar.d the cited condition or practice states as follows
(Exhibit P- 13; WEST 96-208-M):
A Dodge Power Wagon, 200, pick-up truck, Utah
License #7771-BN, was parked within 6 feet of the
explosives magazine . The bed was loaded with
rubbish and combustible materials. The following
items in the bed consisted of plastic oil
containers, card board boxes, paper, . wood, as well
as an oil storage tank on the back of the truck.
This pick-up belonged to the driller/blaster who
is now a full-time employee of Lakeview Rock
Products, and has been cited by MSHA for
violations of CFR-30, Subpart E, while doing
business as an explosive contractor.

The

explosive magazine was located on the adjacent
Foss Lewis property and the blaster was using this
area to store explosives as well as a bone yard
for obsolete equipment. This is an unwarrantable
failure on behalf of the pit manager and the
blaster for allowing rubbish and combustibles to
accumulate near the explosive magazine. Foss
Lewis personnel said they asked the blaster to
remove the equipment months ago.
Inspector Pennington stated that he issued Citation No .
3908687, during an inspection of the Foss Lewis mine adjacent to
the respondent's property . He found a 10 X 12 foot vented and
grounded powder magazine with a door that was locked with two
covered locks on the Foss Lewis property . He asked the pit
manager, Robby Griffith, for the key, and Mr. Griffith informed
him that he had no key and that the magazine belonged to the
respondent and not Foss Lewis. Mr. Griffith obtained a key four
hours later at 2 : 00p.m. The magazine was opened, and Mr .
Pennington inspected the inside and found Det Cord, ANFO
(ammonium nitrate ) , s ome burning fuse, and rifle ammunition and
spent cart ridges (Tr. 58-62 ).
Mr. Pennington observed no signs or other designations in
the area identifying the structure as a powder magazine (Exhibits
P-2, P-4 through P-8, P-10 (Tr . 64-69)) . The required signs were
324

almost immediately posted at 12 or 12:30 p.m., the same day by
Mike Clark, a representative of Burt Explosives, a local supplier
who provides explosives and magazines for mine operators in the
area (Tr. 70-74; Exhibit P-9). Mr. Pennington confirmed that
citations were also served on Burt Explosives because uMr. Clark
said that he was kind of like responsible for putting signs
around," and on Foss Lewis because the magazine was on its
property (Tr . 74).
Mr. Pennington stated that the cited pickup truck belonged
to Kevin Billings, a driller and blaster who was working for the
respondent. The. truck was parked with no keys in it and he
determined that it would not run. The Foss Lewis foreman told
him that the truck had been there for "months• and that he had
been after Mr. Billings to remove it . Mr. Pennington confirmed
that he cited the respondent because he understood that Mr.
Billings was its employee (Exhibits P-9 and P-10; Tr. 81-83).
Mr. Pennington stated that when he returned the next day,
the magazine was gone but the truck was still there. He
described the contents of the truck bed, and it included plastic
grease and oil cans, cardboard, wood, hoses, and a diesel tank.
These materials were flammable and combustible, but he did not .
know whether there was any fuel in the tanks (Tr. 84-86). He
observed no dry grass or trees in the area, but he was concerned
because he found approxima~ely 50 spent rifle cartridges on the
ground within 30 feet of the magazine and believed that someone
had been shooting at the magazine and signs (Exhibit P-3) . He
observed cigarette butts and believed the trash was a fire
hazard, and with the oil and grease around the ANFO "it becomes
a bomb almost automatically" (Tr. 89-90).
Mr. Pennington stated that he issued Citation No. 3908687,
as an "S&S" violation because "it was reasonably likely that an
incident would occur around that particular magazine on behalf of
the garbage that was around, the shooting that was going on, the
smoking that was going on, and there was no signs" (Tr. 9.2 ) . He
also believed that it was not likely that the magazine door would
be closed at all times. He •imagined" that mine employees were
doing the shooting and the evidence of this was •all the brass
and everything else laying around" (Tr. 92). He was concerned
that the powder magazine would blow up by shooting at it with 54
bags (2,700 pounds) of ANFO stored in it (Tr. 96).
On cross-examination, Mr. Pennington believed that the
respondent had some responsibility "for shooting guns and.
whatever" (Tr. 100). He saw no gate to the Foss Lewis property,
and was aware of no agreement to allow respondent's employees to
regularly . enter that property. He never observed anyone shooting
on either property, the magazine door was closed when he arrived,
and he issued no citation for not providing a bullet proof
magazine (Tr. 101). He was not aware that Foss Lewis was using
the magazine, and later learned that Mr. Billings had a key at
the time of the inspection. Mr. Griffith informed him that he
obtained a key from the respondent's "management," but did not
provide any specific name. He was told by Mr. Griffith that the

325

equipment around the magazine belonged to _Mr. Billings (Tr. 104105) . Even though the materials were confined to the truck bed,
they were still a fire hazard and clearly a violat~on of the 25
foot standard (Tr. 109).
·
Mr. Pennington confirmed that he modified the violation from
a section 104(d} (2) order with high negligence to a section
104(a) citation with moderate negligence, and that this was done
a day or two after the inspection. He could not state that he
modified the violation because he cited the respondent "much more
seriously" than foss Lewis or Burt Explosives, and he did not
have those citations with him at the hearing. He explained that
his initial high negligence finding was based on the fact that
Mr. Billings was employed by the respondent and had been cited on
prior occasions. However, he con!irmed that Mr . Billings was an
independent contractor when he was previously cited, was not on
the respondent's property, and he had no evidence that the
respondent was aware of these prior citations (Tr. 111-117).
With regard to Citation No . 3908687, for the absence of
pqwder magazine signs, the record reflects that Mr. Pennington
also modified this violation from a section 104(d) (2) order with
high negligence to a section 104(a) citation with moderate
negligence. He could not recall whether Foss Lewis and Burt
Explosives were also served with section 104(d) (2) orders. In
response to a bench remark that respondent's counsel •is
suggesting that it was and that you modified it so everybody came
out even," Mr. Pennington stated •I think that's what happened"
(Tr. 118).
Inspector Pennington confirmed that ANFO and slow burning
fuses were stored in the magazine, but detonators and caps were
not. He confirmed that ANFO, caps, fuses, and detonators are
used together during actual blasting. He believed that a bullet
penetrating a bag of ANFO could set it off. He assumed that pit
manager Scott Hughes had custody of the magazine key (Tr. 121122) . He confirmed that he found invoices made out to the
respondent as the owner of the explosives (Tr. 124). He observed
no target or bullet holes, scratches, or marks on the magazine
that may have been made by bullets (Tr. 125).
Mr. Pennington stated that he found one Burt Explosives
invoice made out to the respondent and dated •october 16 or 17,
something like that, and believed Mr. Clark was planning a
delivery of explosives the next day, but he did not know how much
was delivered (Tr. 134).
Robby Griffith, plant manager, safety inspector, and loader
operator, Foss Lewis Sand and Gravel Company, testified that his
operation is next to the respondent's property. He confirmed
that the cited powder magazine was on Foss Lewis property,
approximately 600 yards from the respondent's property and there
is no fence separating the two operations. The magazine was used
by Mr. Billings to store explosives that he used when he was .
drilling and blasting for Foss Lewis. When he ceased working
326

there, Dave Lewis, one of the owners, asked Mr. Billings to move
the magazine, but he did not know if this was done (Tr . 135-137 ).
Mr . Griffith stated that at the time of the inspection Mr .
Billings was working f o r the respondent and Foss Lewis had no
explosives stored in the magazine at that time . He confirmed
that no signs were i n itially posted and that he did not have a
key to the cited magazine, and did not know if anyone with Foss
Lewis had a key. He did not know the company that put the
explosives in the magazine (Tr. 138 - 139).
On cross-examination, Mr . Griffith stated that Mr. Billings
was a contract driller for Foss Lewis and was not one of its
employees. Mr. Billings owned the explosives, and when he ceased
doing work for Foss Lewis he left his materials and truck there .
Mr . Billings was asked to move it "when we knew we were in
violation" (Tr. 142 ) . Mr . Griffith stated that he was present
when the magazine was unlocked, and he believed that his boss
obtained the key.from Scott Hughes. When Mr. Billings ceased
blasting for Foss Lewis he was hired by the respondent as a
loader operator and kept his blasting materials in the magazine .
He could not explain where the empty cartridges found at the
magazine came from (Tr . 144) .
James M. Clark , testified that he is employed by the W.H.
Burt Explosives Company, an .explosives supplier. He stated that
the cited magazine is owned by his company. He was not aware of
any magazine owned by Mr . Billings "because we didn't service
Kevin Billings when he was there," (Tr. 146). However, Mr.
Billings was purchasing explosives from his company and told him
that he was employed by the respondent, and asked him to deliver
a magazine, and told him where to put ·it . Mr. Clark did not know
that he was putting it on Foss Lewis property, but later learned
that it was in fact on that property (Tr . 147) .
Mr. Clark did not believe that anyone from Foss Lewis asked
him to move the magazine, but after the inspection, Mr . Billings
asked him to move it because it was on Foss Lewis property .
Mr.Clark still supplies explosives to the respondent and the
magazine is now on its property . No explosives were supplied t o
Foss Lewis during the past year, and one of his drivers would
have delivered them to the magazine. The respondent was billed
for the supplies stored in the magazine, and he put the signs up
on the day of the inspec tion (Tr . 149).
On cross-examination, Mr . Clark stated that he usually posts
four signs at the time a magazine is delivered. Foss Lewis never
purchased supplies from his company , and he has serviced Mr.
·
Billings as an individual . Mr . Clark explained that another
magazine supplied by another company (ICI) was at Foss Lewis when
Mr. Billings provided them with blasting work, and the magazine
was switched when he learned the respondent was purchasing from
ICI . He then removed Burt ' s magazine, which had been there for
over two years (Tr. 152) . Mr . Clark stated that the magazine is
constructed to ATF standards and is bullet resistant. A blasting

327

agent such as ANFO will not explode if struck by a bullet, and
storing fuses with ANFO is an acceptable practice (Tr. 154).
Section 104(d) (2) "S&S" Order No. 3908679, December 12,
1995, cites an alleged violation of 30 C.F.R. 56.9301, and the
cited condition or practice states as follows (Exhibit P-14;
Docket WEST 96-208-M) :
The north screening plant scalper dump location
was not provided with a bumper block to prevent
equipment overtravel. This violation has been
cited before and a hearing was held before an
Administrative Law Judge where it was ruled in
favor of MSHA. This is an unwarrantable failure.
MSHA Inspector Michael Okuniewicz confirmed that he issued
the violation after observing that there was no berm at the
scalper dump location where large wheel loaders dump materials
into the top of the scalper which sizes the materials. The
absence of a berm presented an equipment overtravel hazard, and a
piece of equipment could strike the scalper equipment, fall into
it, or overturn it. He believed that the scalper structure was
being undermined in that the support timbers and cribbing were
hanging out in midair after some large boulders were removed. He
determined that the violation was "S&S" for the following reason
(Tr . 16 2 -16 3 ) .
A.

I determined that because of the two
circumstances, number one, that it was
undermined. The ·integrity of the · supports of
the scalper were not known. The piece of
equipment that possibly could hit it if it
should let loose, the front-end loader would
tip end over end, in other words, front-ways
with the operator in it and fall the distance
of approximately 40 to SO feet.

The equipment was shut down when he observed it, but during
normal mining operations a front-end loader may dump at the
scalper every ten minutes depending on the number of loaders in
use. He beli-eved a fatality would result if the loader
overtraveled and •went tumbling," particularly if. the operator
was not wearing a seat belt (Tr. 164).
The inspector stated that he based his unwarrantable failure
determination on the previous history showing a November 3, 1993,
Order No. 4120704, issued by Inspector Richard Nielsen, on the
same scalper. He believed the •(d) chain" began in 1993, but did
not know if there were any intervening clean inspections because
•it was my first time up there, so I didn't really know the
history, I was fairly new to the office" {Tr. 164). However, he
reviewed his office files prior to his inspection and found no
indication of any intervening clean inspections (Tr. 166).

328

•:.·

The inspector identified Exhibit P-15 as a section 104(a)
non-"S&S" Cit~tion No. 4120692, issued by Inspector Nielsen on
November 3, 1993, citing a violation of section 56.9301, because
of the absence of a bumper bloc~ at the same scalper location
(Tr. 166-16?; 175) . He based his "high" negligence finding on
this prior repeat violation, but did not determine how long the
cited condition in this case had existed (Exhibits P-16 and P-17;
Tr. 169-171). He believed that a bumper block, rather than a
berm, would be a suitable device to prevent overtravel, and he
intended to note the absence of a bumper block rather than a berm
on photographic exhibit P-16 {Tr. 172). Even if Mr. Nielsen's
prior citation were issued at a different location, he would
still have issued the unwarrantable failure violation (Tr. 177).
On cross-examination, the inspector stated that there were
berms on either side of the scalper, and a berm would be
permitted at the point of overtravel as long as it impeded travel
and was maintained. His only concern for overtravel was in a
straight through direction towards the scalper (Tr. 180} . He did
not know how the scalper was anchored directly under the ground
in front of the scraper (Exhibit P-19). He has observed such
scalpers anchored by cables, but did not know if that were the
case for the cited scalper because no cable was visible , and he
did not know how long it had been in place (Tr . 182-184} .
The inspector did not believe that the steel beam part of
the scalper shown in Exhibit P-16, would impede equipment
overtravel because "you're actually striking the piece of
equipment, hitting the scalper, there .is nothing there to prevent
the overtravel of the loader" (Tr. 188).
In response to further questions, the inspector further
explained that Scott Hughes was the same pit manager in charge
during the prior violation, and that it was not timely abated,
resulting in a section 104(b) order by Mr . Nielsen . He did not
know why the prior violation was not timely abated (Tr. 196).
The inspector confirmed that Inspector Nielsen's prior
citation also referred to a weakened scalper foundation caused by
undercutting, but there is no indication that this was corrected
as part of the abatement (Tr. 201-203) . He confirmed that even
if the scalper in the instant case had not been undermined, he
would still have issued a violation (Tr. 203-205).
Section 104 fdl (2) "S&S" Order No. 39086.80, December 12,
1995, as amended, cites an alleged violation of 30 C.F.R.
56 . 14112(a) (1), and the cited condition or practice states as
follows (Exhibit P-18; Docket WEST 96-208-M):
The guard on the conveyor belt tail pulley
located under the orange screening plant at the
north side, was not maintained in a condition
which would prevent contact with the moving self

329

cleaning tail pulley. The guard was damaged and
the north side guard was missing completely.
The tail pulley is ppproximately 60 inches
high off the ground on the north side were the
guard was missing. This is an unwarrantable
failure because of this same violation has been
cited before in the last inspections.
Inspector Okuniewicz stated that he issued the citation
after observing ' that the guards were off the self-cleaning tail
pulley located on the stacker conveyor belt while the belts were
running. The tail pulley has sharp fins, similar to a meat
grinder, and are "very dangerous when contacted" (Tr. 206) .
Guards were provided, but one was completely missing on the side
of the pulley, and the·rear guard "was torn and pulled away" (Tr.
206) .
The inspector stated that no one was working in the vicinity
of the conveyor while he was there, but "there appeared to be a
path coming from the north direction going down along side the
back of the conveyor, small path, where an employee would walk"
and he observed foot prints (Tr. 207).
The inspector based his unwarrantable failure finding on the
following (Tr. 207).
A. Two reasons on this. This - - well, let
me explain it this way. This particular guard on
this particular conveyor belt has been cited at
least two to three times previous. Again, the
guards were missing. The material was built up
underneath where an employee would have to clean
out from underneath it. There is exposure, and it
was the same pit manager in charge each time the
citation was issued.

Q.

Who was that pit manager?

A.

Mr. Scott Hughes.

The inspector could not remember the prior citations or who
issued them, and believed they were issued in 1993 and 1994. The
unguarded pulley presented a hazard to someone cleaning or
greasing the pulley and it could grab loose clothing and pull
someone into the pulley (Tr. 208). He has observed people
cleaning under pulleys with shovels at other mine locations (Tr.
209) . He based his high negligence findi.ng on the fact that the
condition was "very obvious" in that the guards are visible from
the plant control tower and roadway and the person in charge of
the pit should be making daily safety inspections (Tr. 210).

330

On cross examination, the inspector confirmed that pit
manager Scott Hughes was not present during his inspection and
that Ms. Joree Felker, the safety manager, was in charge of
safety (Tr. 220) . He was not aware of any accidents at the mine,
or anyone contacting a tail pulley. He confirmed only two, and
not three, prior pulley citations, and he had no idea how long
the cited condition existed and did not inquire of any employee
in this regard. He believed the footprints were freshly made.
He confirmed that some effort had been made to repair the guards,
and did not know whether the mine records indicated that the
pulley was inspected on the day of his inspection (Tr. 224) .
Section 104Cdl (2) "S&S" Order No. 3908703, December 12,
1995, as amended, cites an alleged violation of 30 C.F.R.
56.14112(b) , and the cited condition or practice states as
follows (Exhibit P-22; WEST 96-208 -M ) :
The tail pulley guard located on the Fab Tee
conveyor was not maintained in a good condition to
prevent a person from contacting the self cleaning
tail pulley . The guard had been pulled away
l eaving an opening of 6 inches wide by 15 inches
high exposing the self cleaning tail pulley to
possible contact . This same guard was written
before on other inspections as not guarded and now
not being maintained. This is an unwarrantable
failure.
Inspector Okuniewicz , confirmed that he issued the citation
because the guard was not maintained in good condition in that it
was pulled away from the pulley exposing it to contact. He saw
no one in the area , and estimated that the pulley was five feet,
or "eye level" off the ground. If someone were greasing or
adjusting the belt, "they could be pulled in." He recently
confirmed that this particular pulley had not previously been
cited, but others have, such as the prior violation No. 390868~.
The opening in question was 6 inches by 15 inches, and an opening
on the other side was also present, and it was approximately
three to four inches . He believed that someone could contact the
pulley fins during greasing (Tr. 232-237; Exhibit P-23).
The inspector stated that tail pulleys are typically
lubricated while the equipment is running, but extended grease
fittings are used as a precaution so that no one is exposed to
any contact. He observed no such device on the cited pulley, or
on the previously cited pulley (Tr. 238-239) . He observed no
walkways or tracks in the immediate vicinity of the conveyor. He
stated that "it's easily accessible" in that "it's out in the
open. There is nothing in there to block anyone's approach to
this conveyor belt . " He further stated that "if someone should
happen to go over there, yes, they could contact the frame" or
"get close to being in danger of contacting the pulley." He

331

further stated that it's possible that someone could catch their
hair or clo·thes through the 6-inch opening by casually walking by
(Tr. 243-245). He did not determine whether the conveyor had
sealed bearings that did not require greasing (Tr. 246).
On cross-examination, the inspector confirmed that the 6inch unguarded opening would be a hazard to someone walking by,
and any required adjustments are made on the side where the belt
guarding was down at the small 3-inch opening (Tr. 252).
Section 104(dl (2 ) non-"S&S" Order No. 3908704, December 12,
1995, cites an alleged violation of 30 C.F.R. 56.11027, and the
cited condition or practice states as follows (Exhibit P-24; WEST
96-208-M) :
A 55 gal steel drum was used as a work platform
and to provide access to the electric motor
starter box located on the standard head cone and
screen (#16). Was cited on previous inspection,
Citation #3908551. This is an unwarrantable
failure.
Inspector Okuniewicz, confirmed that he issued the citation,
but did not see anyone stand on the steel drum because the
plant was shut down at the time of the inspection (Tr. 253). The
drum was located next to a control box for the electric motor
starter box for the head cone screen. If the breaker
switch were to "kickout," the control box would need to be opened
to reset the switch. The switch box is elevated and located on
the head cone screen frame (Exhibit P-27). The only other access
to the box would be by someone walking on the I-beam shown in the
photogr~ph, but he considered this to be unsafe (Tr. 256).
The inspector stated that the drum was not secured in any
way, and the top was cut off, and it was turned upside down, and
he assumed that someone would stand on it to reach the control
box. He believed the drum was located on unstable dirt and it
was leaning to the right. He did not know how frequently the
control box had to be accessed. He considered the drum to be a
work platform used to open the switch box and reset or pull the
switch lever (Tr. 260-261).
The inspector did not believe the drum was of substantial
construction and it had no railings. One could possibly fall
while opening the box and possibly hit the frame of the cone
crusher. However, he cited the condition as a non-"S&S"
violation (Tr. 263). He based his unwarrantable failure
determination on the fact that a prior violation was issued on ·
August 29, 1995, for using a cable spool to access the control
box at the same location, and he agreed that it provided a more
substantial work platform than the drum turned upside down
(Exhibits P-25 and P-26; Tr. 263-264). The violation was abated
332

by installing a ladder mounted to the frame below the switch box
to provide permanent access.
If someone where to fall, they
would fall 6 feet to the ground from the drum (Tr. 267).
On cross-examination, the inspector did not know if a ladder
was near the switch box for the use of employees, and depending
on how it was placed and secured, a ladder may have provided safe
access to the box. The violation was abated when the drum was
turned over and labeled "trash," but he did not know if . it was
used for trash on the day of the inspection (Tr. 270). He
observed no footprints on top of the drum, and an injury would be
less likely if someone were to fall on the fine powdery material
on the ground below the drum (Tr. 272).
Section 104Cdl C2l non-"S&S" Order No. 3908708, December 13,
1995, cites an alleged violation of 30 C.F.R. 56.6132(a) (6), and
the cited ·condition or practice states as follows (Exhibit P-28;
WEST 96-208-M) :
The upper pit cap and powder magazines were
not posted with the appropriate warning signs that
indicate the contents of the facilities.
This
same type of violation was cited on the previous
Code 37 Inspection conducted on 11-16-95.
Citation number 3908687. This is an unwarrantable
failure.
The inspector issued this violation when he found that
powder and cap "day box" magazines located in the upper pit area
on the respondent's property were not posted with signs
identifying the contents, and No Danger and No Smoking signs were
posted. This violation was the same type as Citation 3908687,
issued on November 16, 1995, for failing to post signs on a
larger magazine (Tr. 275). The cited boxes were double locked,
and they ar~ heavy and approximately 4-feet long, 3-feet wide,
and 3 to 4 feet deep. He looked inside the boxes, and determined
that the cap and powder magazines were in close proximity of each
other and only one set of signs was required. The boxes
contained ANFO and boosters and there was nothing wrong with the
contents of the boxes (Tr. 277-279). He saw no evidence of any
gun firing in this area (Tr. 282).
The inspector confirmed that the violation was not "S&S"
because the boxes were in a remote area of the pit and away from
any active working area. · He found no record of any prior
citations for the two cited magazines in question. He . based his
unwarrantable failure finding on the fact that the prior large .
magazine associated with citation No. 3908687, was cited, and
when it was moved to the respondent's property it was posted with
signs, but the two smaller ones were not. The violation was
abated when Mr. Billings posted the sign~, and he was working for
the respondent at that time (Tr. 284-285).

333

On cross-examination, the inspector did not know if the
cited boxes belonged to Burt Explosives, and he did not cite that
company·. Mr. Billings informed him that the explosives were
brought from the main magazine and placed in the smaller boxes
for use on a daily basis as needed. The inspector confirmed that
he cited a violation of section 56.6132, concerning magazines,
rather than 56.6133, covering day boxes (Tr. 288).
Section 104lal non-"S&S" Citation No. 3908711, December 13,
1995, cites an alleged violation of 30 C.F.R. 56.6131(b), and the
cited condition ·or practice states as follows (Exhibit P-35; WEST
96-208-M) :
The high explosives magazine and the cap
magazine that were located on the upper bench were
located within 7 feet of each other which is a
violation of the regulations affecting storage
facilities in 27 C.F.R. Part 55 Standard 55.218,
Distances for Separation of Magazines. The high
explosive magazine contained approximately 500
lbs. of ANFO and a box of high explosive boosters.
The cap magazine contained nonel (sic), burning
fuse and electric blasting caps.
The inspector confirmed that the cited boxes were the same
ones previously cited for the absence of warning signs. He
determined that the boxes were approximately seven feet apart by
measuring the distance with a ruler. Based on the amount of
explosives in the boxes, and according to the ATF standards found
at 27 C.F.R. 55.218, they should have been 58 feet apart. There
was a danger in the two boxes being close together in that if one
box should explode, it could ignite the other one (Tr. 290-292).
On cross-examination, the inspector stated that the boxes
were constructed of steel on the outside and wood on the inside,
and one of the boxes contained detonators that were separated
from the explosives. He was aware of no MSHA regulation that
required day boxes to be separated for a certain distance, and he
explained that a day box is used to hold materials for the same
day or shift it is used and not for storage (Tr. 292-294).
The inspector stated that the north box contained burning
fuse, electric and non-electric blasting caps and delays, and the
south box contained 500 pounds of ANFO in 50 pound bags and a box
of high explosive boosters, which is much more than required for
a day box (Tr. 296).
Section 104la) non-"S&S" Citation No. 3908709 , December 13,
1995, cites an alleged violation of 30 C.F.R. 56.6132(a) (4), and
the cited condition or practice states as follows (Exhibit P-37;
WEST 96-262-M) :

334

The upper pit cap magazine had bolt heads
that were exposed on the inside of the magazine
tha t could create a sparking hazard. This
magazine was of metal construction on the outside
with wood on the inside.
Section 104(a l non-"S&S" Citat ion No . 3908710, December 13,
1995, cites an alleged violation of 30 C.F . R. 56.6132(a) (4 }, and
the cited condition or practice states as follows (Exhibits P-37
and P-39) :
The metal high explosives magazine on the
upper pit bench, had bolt heads that held the wood
on the inside of the magazine, exposed on the
inside creating a sparking hazard.
The inspector confirmed that he issued the citations after
observing a total of four "shiny regular normal carriage bolt"
heads, two in each magazine, that were exposed on the inside of
the magazine. The bolts were not brass or non-sparking, and they
were used to bolt the plywood lid to the metal exterior. The
bolt heads posed a hazard in the event of a lightning strike that
could convey electricity through the bolts into the inside of the
magazines (Tr. 300-303).
Section 104Cal "S&S" Citation No. 3908706, December 12,
1995, cites an alleged violation of 30 C.F.R. 56.11002, and the
cited condition or practice states as follows (Exhibit P-30; WEST
96-209-M) :
.
The stairs leading down to the #16 Elsay cone
crusher and screen plant from the control
building, was not maintained in a safe manner.
The top set of steps had the second from the
bottom step bent, and ended at a short dirt path
approximately 72 inches long with an incline that
dropped approximately 30 inches to the next set of
steps. The second set of steps had the handrails
cut off to where the railings were· extending out
with .the sharp cut off rail and step rail
protruding outward. If a person was to slip or
trip coming off the first set of steps, and having
nothing there to catch themseives, they would fall
directly on the protruding cut of handrails and
steprail causing a serious or possible fatal
accident.
The inspector confirmed that he issued the citation after he
observed that the handrails on one of the cited stairways were
cut off and the sharp ends of the bare pipe were protruding, and
there was a sharp edge on the stair railing where it was cut off .
The bottom step of the other cited stairway was bent, and he

335

believed that someone could trip on the moist and damp inclined
pathway between the stairs and fall directly on the sharp
protruding rails that were cut off. The protruding rails were
visible and obvious from the control room (Tr . 313-316).
The inspector concluded that the stairways were not
maintained in a safe manner b~cause of the conditions that he
observed as stated in the citation (Exhibits P-31, P-32, and P34; "Tr. 317-319). He determined that the violation was us&S"
because of a combination of factors, including the bent step, the
protruding rails, the slick dirt pathway between the steps, and
i f someone were to slip or fall, "the only way you're going to
land is right against those steps, right on those steps," and it
could very well be a fatality because the sharp edges of the
railings could spear someone. The pathway is used as a walkway
to access the lower level (Tr. 320-321). On cross-examination,
the inspector confirmed that there was a roadway that one could
use in lieu of the stairways , but the stairways were the quickest
way to get to the bottom of the hill (Tr. 326).
Section 104Cal "S&S" Citation No . 3908707, December 12,
1995, cites an alleged viol~tion of 30 C.F.R ..56.9300(a), and the
condition or practice states as follows (Exhibit P- 33; WEST 96209-M) :

A berm was not provided for approximately 18
feet were (sic) the case uni-loader was parked
near the con trol room. The uni - loader was backed
within 4 feet of a dr9p off of approximately 30
feet. A person sitting in the operator's
compartment of the uni-loader could not visibly
see the edge of the dropoff he or she was backing
up to.
The inspector confirmed that he issued the citation after
observing a Case uni-loader backed up and parked next to a steep
incline and there was no berm to prevent the l oader from
traveling backwards down the incline of approximately· 30 feet
(Exhibit P-34). He stated that he entered the vehicle
compartment to see i f the operator would have a clear and visible
view to the rear, and he determined "there was no way to see to
the back of the edge of the roadway" (Tr . 335-336) .
The inspector was concerned that if anyone ba cked up into
the area where the loader was parked there would be no view to
the rear whatsover and if he continued "you would definitely roll
backwards over this edge or ledge approximately 30 feet" (Exhibit
P-32; Tr. 337).
On cross-examination, th~ inspector stated that he did not
know whether the area was newly constructed, but mining was
taking place and "the loaders were running when we arrived on the
336

property, and they just parked them all around the control tower
when we came up there" (Tr. 340). He determined that the area
was a roadway because all of the equipment ~as parked around the
area, and it was probably also used as a parking lot. The loader
was not dumping, but vehicles travel in ·and out of the area. An
18-foot berm was installed to abate the violation (Tr. 341-346).
He stated that the loader was parked within four feet of the edge
of the incline (Tr. 347).
~
Section 104(a) "S&S" Citation No. 4333365, as modified,
issued on March 19, 1996, for an alleged violation of 30 C.F.R.
56.14107(a), states as follows (Exhibit P-40; WEST 96-262-M):
The guard for the self cleaning tail pulley
located on the stacker conveyor belt that is
located under the orange screening plant at the
north side of the property was missing exposing
employees to the hazard of contacting pinch points
or being pulled into the self cleaning tail
pulley. The tail pulley was located 39 inches
above the ground on the north side, and 46 inches
above the ground on the southside. Two employees
were observed cleaning up spilt material in the
area while the copveyor belt was running, to gain
access to the tail pulley for cleaning under.
The inspector confirmed that he issued the citation and
explained his reasons for doing so (Tr. 349- 355). Respondent's
counsel stated that after further discussions with Mr. Scott
Hughes, he conceded th~t "this is one that shouldn't have
happened. The employee was fired after this incident. * * * and
we'll just give up on this one" {Tr. 356). Counsel conceded that
the violation occurred and that the respondent has agreed to pay
the proposed civil penalty assessment (Tr. 356). MSHA's counsel
agreed to this disposition, and it was treated as a settlement
motion which I approved from the bench (Tr. 360).
William Tanner, Jr., MSHA, ·Metal and Nonmetal Field Office
Supervisor, Salt Lake City, confirmed that he is Mr. Okuniewicz's
supervisor and that he accompanied him during his November 16,
1995, inspection. He also confirmed that he accompanied
Inspector Nielsen during a November 1993 inspection. He did not
believe that Mr. Nielsen's 1993, scalper bumper block citation
was for the same location cited by Mr. Okuniewicz, but it did
concern the same problem (Tr. 370-372).
Respondent's Testimony and Evidence
Scott Hughes, pit manager, identified Exhibit P-1, as a copy
of a daily inspection report for the week ending September 2,
1995, for the water truck that is the subject of Citation No.
3908559. He stated that the employee who filled it out only
worked for three months prior to the inspection and left ·his

337

employment at the end of 1995. The report covered the period
including August 30 , 1995. He stated that his employees are
instructed to fill out daily inspection reports after checking
their equipment. He further stated that after learning about the
citation, he checked the air horn and found that it was working,
but someone had pushed the cable that ~ctivates the air horn into
the headliner. He simply pulled it back down (Tr. 403).
Mr. Hughes believed it was unlikely that the truck would run
over anyone {Tr. 412). He confirmed that his records reflect
that the cited truck was inspected before it went on shift {Tr.
414). He also confirmed that Inspector Pennington did not
actually serve or hand him the citation {Tr . 415) .
Mr. Hughes stated that photographic Exhibits P-2 and P-10,
were taken at the Foss-Lewis sand and gravel pit at the south
side of their property. The north side of that property joins
Lakeview's south property line. The cited pickup truck belonged
to Kevin Billings, and he used the cited magazine when he was a
contractor doing blasting work for Foss-Lewis. The truck and the
magazine were located on Foss-Lewis property.
Mr. Hughes confirmed that Mr. Billings stored some of
Lakeview's powder in the magazine, and after he went out of
business, Mr. · Hughes purchased the remaining powder from him
after the inspection and hired him during the spring of 1995.
Mr . Hughes was not aware that Mr. Billings was placing any powder
belonging to Lakeview in that magazine, and he was not aware that
anyone was shooting in that area (Tr . 417-422).
Mr. Hughes stated that Mr. Billings did not use the pickup
truck to perform any duties for Lakeview and that the magazine
was owned by Burt Explosives. Lakeview took possession of the
magazine after this incident. He did not believe that the ANFO
or fuses in the magazine could be exploded by a bullet, but the
dynamite and det cord could, and he was not sure whether any
dynamite was stored in the magazine {Tr. 424-425).
On cross-examination , Mr. Hughes confirmed that the magazine
was approximately 600 yards from his south property line, and
that Mr. Billings was using the magazine owned by Burt
Explosives. He believed that Mr . Billings stored some of the
explosives that were used by Lakeview in the magazine but found
out about it after the inspection {Tr. 425-427). He further
confirmed that there was a no smoking sign on the inside of the
magazine door, that blasting activities at Lakeview were not
daily occurrences, and that he fired Mr. Billings (Tr. 429).
With regard to the cited screening plant scalper dump
location that was cited because of the absence of a bumper block
to prevent equipment over travel, Mr. Hughes explained how the
scalper was anchored, and he did not believe that the condition
338

of the cribbing created a danger that the scalper would fall
forward. He believed that Lakeview had be~n cited for a prior
violation at the same location, and he believed that it was
impossible to overtravel the scalper. The violation was abated
by installing a concrete Jersey barrier in front of it,
installing chains across the I-beam, and berming it in front and
on either side. He confirmed that equipment has never
overtraveled and no one has ever been hurt at that location (Tr.
432). He beiieved that the I-beam prevents any overtravel and
that the large loader tires are usually 8 to 9 feet back from the
scalper when the 'loader is dumping (Tr. 433).
On cross-examination, Mr. Hughes stated that the loader is
within 3 or 4 feet of the grizzly when it starts to dump. He
confirmed that he tested the I-beam by bumping it with the loader
and it would not budge, and the plant has never moved in the six
years it has been in operation. He visually checks the cables
supporting the plant (Tr. 434-436). He stated that the loader
tires are 6 ~ feet in diameter, and he did not believe the
machine would overtravel the grizzly because the tires would be
resting against th~ steel girder shown in Exhibit P-16 (Tr. 438).
Mr. Hughes agreed that the guards shown in photographic
Exhibit P-19, were not wher~ they ought to be (Order No.
3908680). He stated that the guards "rattle off now and again,"
and all employees are instructed to · replace a guard if it is
taken off. He has disciplined employees for not properly caring
for the guards (Tr. 442). Mr. Hughes stated that he does not
personally check the guard every day, .but that the plant
operator, Kevin Billings, checked it at that time (Tr. 443).
With regard to the tail pulley guard that was pulled away
(Order No. 3908703), Mr. Hughes stated that the tail pulley
bearings are sealed and lubricated and they are not greased. The
belt adjustment is done at another location, and there would be
no reason for anyone to stick their arm behind the guard, and no
one usually in the area. He co~ld think of no way anyone
casually passing by would come in contact with the belt (Tr. 444447). On cross-examination, Mr. Hughes stated that a uni-loader
rake attachment is used to clean up belt spillage and there is no
shoveling done under the belt (Tr. 447).
With regard to the steel drum "work platform" violation
(Order No. 3908704}, Mr. Hughes stated that the steel drum was
supposed to be used as a garbage can, that he never told anyone
to turn it upside down under the control .box, and that . ladders
are provided for access to the box, and they are located 80 to
100 feet away. Access to the box is limited to once a month, or
once every three months, and he has used a ladder to access the
box (Tr. 450-452).

339

With regard to the magazine "day ·boxes,n Citations (3908708,
3908709, 3908710, and 3908711), Mr. Hughes stated that they
were owned by Burt Explosives, and he believed that one sign was
posted 300 to 400 feet to the north on the same level as the
cited boxes and that he was waiting for the rest of the signs
which had not been received from Burt Explosives. The area where
the boxes were located was 600 feet from the pit area, and one
would have to hike up a very steep hill · to get there. There are
no road accesses from the back side of the property and the
nearest houses are 2 ~miles away. One would have to go down a
vertical steep hill after crossing a fence to reach the area (Tr.
462-464).
Mr. Hughes stated that Burt Explosives was responsible for
maintaining the boxes, and that "it's kind of the way it's always
been with the explosives contractor.n He was not aware that the
bolts were exposed on the inside of the boxes, and he did not
dispute the fact that explosives were in the boxes at the time of
the inspection (Tr. 465).
On cross-examination, Mr. Hughes stated that the boxes have
been in the same location "for a couple of years" and that
Lakeview fill~d them from . another magazine or upon delivery (Tr.
4 67) •
Darren Parris, testified that he was employed by the
respondent as a repairs supervisor. He was present at the site
when the inspectors arrived for their inspection on December 12,
1995, and he was putting handrails on the stairways that are used
to go to the plant from the control room (Exhibit P-31). The
stairways were being installed for the first time, and he had
completed the top stairway and was working on the bottom one. He
intended to install square tubing handrails but had to stop
working to accompany the inspectors. He was not with the
inspectors when they cited the stairways. It would have taken
him two hours to complete the work, and he could not recall
having an opportunity to tell t~e inspectors that he had been
working. He confirmed that a couple of people had started using
the freshly installed stairways (Tr. 478-482).
Mr. Parris stated that he added an additional handrail
between the two stairways, and also installed a cat walk and
ladder to access the crusher control box as suggested by the
inspector (Tr. 483). He explained the company policy and
procedures for checking the equipment and guards, and confirmed
that the employees are instructed in those procedures (Tr. 484).
On cross-examination, Mr. Parris stated that he was also
doing other repair work during the inspection when other
individuals were accompanying the inspectors. He identified the
equipment checklist that was used in 1995 (Exhibit R-1), and
indicated that newer ones are used at the present time. He
340

explained how the checklist s were us ed, and indic ated that they
are completed daily and should be kept with the vehicle and
t urned in weekly t o Mr. Hughe s (Tr . 486- 4a8 ).
Ralf Henkel , testified that he is an occupational safety and
he alth consultant specializing in mine safety and health . He ha s
thirty years of mining experienc e and has a degree in geology and
has done engi nee r i ng and mas ters ' work. The pet i t ioner ' s counsel
stipulated t o hi s e xpertise i n s a f ety and health (Tr. 493).
Mr. He nkel stat ed that he has vi s i ted the mine three or f our
times and has th or oughly gone through the site and familiarized
himself with all of the equipment. He confirmed that he
specifically examined the scalper shown in photographic Exhibit
P-16, and spoke with individuals who witnessed its instal l ation.
He explained how the structure is s upported and tied to the bank,
and stated that it ~looked pretty solid to men (Tr. 495-496).
In his opinion, the scalper does not permit ove rtravel and the
structure ~is pretty sound.n A front-end loader would not roll
off the edge or fall forward if it were to stop a t the I-beam,
and ~it would have t o roll a c ouple of more feet, at least the
radius of the wheel, if even more than that,u in order to fall
forward if the !-beam we r e removed (Tr. 496- 497).
Mr . Henkel stated that . the purpose of having a c l eai area
for 25 feet around an explosives magazine is to prevent a fire
from propagating through dry brush or debris and touching the
magazine. In his opinion, debris in the back of a pickup truck
presents less of a hazard then debris scattered around the
ground . He confirmed that he has observed the cited watering
truck in operation and estimated that it operates "one, maybe two
milesn an hour , and assuming the hor n wa s inoperative , he did not
believe it would present a reasonable likeli hood of a f a t a lity
because "you could literal ly stop it on a dime as s l owly as he ' s
goingn (Tr. 498) .
On c r oss-examination , Mr. Henkel stated that he was not at
the mine during the August , November, and December 1995,
inspections (Tr. 499 ) . He confirmed that he has observed a
front-end loader run into the scalper I-beam as a "test," and the
scalper ~reacted solidly in my opinion . " He also observed the
cabl es anchored i n concrete (Tr. 500). Had he observed the
stairways with the exposed handrails he woul d probably have been
concerned, as he would be if he also observed the tail pulley
guards (Tr . 501) .
Inspector· Okuniewicz, was recalled by the petitioner and he
confirmed that he saw Mr. Parris in the morning during his
December 1995 inspe ction, and briefly spoke with him when he wa s
working at the cone screen plant abating a prior citation . He
did not observe Mr. Parris working on the stairways when he was
in that are~, but the area is not visible when corning on the

341

property and he may not have noticed any work taking place at
that time. He stated that Mr. Parris did not accompany him on
his inspection and all employees left the property at
approximately 11:00 a.m., including Mr . Parris (Tr. 502-504).
Findings and Conclusions
Fact of Violation
Citation No. 3908559
The respondent was charged with a violation of section
56.14100(a), because of the alleged failure of the operator of
the cited water truck to inspect the truck before placing it in
operation . The cited standard requires the equipment operator to
inspect the equipment before placing it in operation on his
shift. In addition to the cited charge, the citation further
states that the operator of the truck was not supplied with any
equipment safety inspection forms, and that the pit manager had
no records for the truck in his files.
Although the citation (Exhibit P-36'), indicates that it was
served on pit manager Scott Hughes, and states that ~the pit
manager had no records for this truck in his files," the
evidence produced at the hearing establishes that Mr. Hughes was
not present during the inspection and did not accompany the
inspector because he was under a court order and injunction not
to be present at the mine during any MSHA inspection (Tr. 34) .
The inspector's notation that the pit manager had no record
of the cited truck conveys the impression that Mr. Hughes was
present during the inspection , was asked to produce the record,
and could not do so . However, the evidence proves otherwise, and
in response to certain bench inquiries seeking c l arification of
the matter, the inspector offered the following explanations at
(Tr. 52-54) :
THE COURT: And that the pit manager had no
records. You served this on Scott Hughes the pit
manager?
THE WITNESS : Yes, sir.
THE COURT: And the testimony was that Scott
Hughes didn't accompany you because he was under
injunction .
THE WITNESS: Well , when I went there early in
the morning he was there. As soon as I arrived,
then he has to leave. So he being, you know, in
charge at that time, you know, then we still made
it for Scott Hughes.
342

THE COURT: You say the pit manager had no
records for this truck in his files, how did you
determine that that day?
THE WITNESS: We asked for them.

And - -

THE COURT: Did you ask him?
THE WITNESS: A lot of times we asked for
things, and Scott can be contacted by telephone.
THE COURT: My question is when you issued
this citation did you ask Mr. Hughes whether he
had records for this truck?
THE WITNESS: I asked the people who
accompanied me on the inspection.
THE COURT: So you answer is you didn't ask
Mr. Hughes?
THE WITNESS: But they still couldn't come up.
THE COURT: You didn't ask Mr. Hughes?
THE WITNESS: No, not personally.
THE COURT: You didn't ask Mr. Hughes period.
THE WITNESS: I asked for the records from the
people who accompanied me.
Contrary to the information on the face of the citation, the
inspector admitted that the citation was not personally served on
Mr. Hughes, and that he did not ask Mr. Hughes about any truck
records. I find the inspector's explanations to be somewhat
evasive and lacking in candor, and I have s~rious doubts
concerning his credibility with respect to this particular
citation.
The inspector could not recall who accompanied him during
the inspection, and he did not know the name of the operator of·
the truck. The inspector produced none of his notes relating to
this citation, and the truck driver was not summoned to testify.
The inspector confirmed that the driver's name was not recorded
on the face of the citation because to do so would violate MSHA
policy of protecting miners against retaliation (Tr. 54).
The petitioner's evidence in support of the alleged
violation is the hearsay testimony of the inspector that the
truck operator, .who has not been identified, and who did not
testify, told him that he only checked the oil, did not inspect
the vehicle further, and had no inspection forms to verify any
343

inspection. The inspector further testified that he also cited
the truck five minutes earlier for an inoperative horn that the
operator was not aware of, and the inspector suggested that the
defect would have been found if the pre-operational safety check
were made (Tr. 19-20) .
In its defense, the respondent's pit manager, Scott Hughes,
produced a copy of an inspection report for the cited truck in
question showing that it was inspected before being placed in
operation on August 30 , 1995, (Exhibit P-1; Tr. 403, 414). Mr .
Hughes testified that his employees are instructed to fill out .
the inspection reports after inspecting the equipment, and he
indicated that the operator in question worked for him for only
three months ·and left the job at the end of 1995. He also
testified that the operator was instructed on mine safety
procedures, and that the inspection report in question was in his
main office in North Salt Lake City at the time of the inspection
(Tr. 404-405) . Since he was not at the mine, he could not state
whether the report was produced on the day of the inspection (Tr .
4 0 6} •

With respect to the prior inoperative horn citation, Mr.
Hughes testified that after learning about the citation, he
checked the horn and found that it was working, but someone had
·pushed the cable that activates the horn into the truck cab
headliner, and he simply pulled it back down (Tr. 403}.
In the course of the hearing, the petitioner's counsel
asserted that in a prior proceeding concerning the respondent
before former Commission Judge Arthur Amchan, 18 FMSHRC 1504
(August 30, 1996} in Docket No. WEST 96-88-M, the respondent
withdrew its contest of the truck horn violation (Citation No.
3908558) at the hearing and paid the $69 penalty assessment (Tr.
20) .
The petitioner's counsel further asserted that in the prior
proceedings before Judge Amchan, daily inspection reports was an
issue, and although ~a ream of inspection reports" were produced
at the hearing, the August 30, 1995, inspection report for the
cited truck in question was not among those reports (Tr. 406).
I have reviewed Judge Amchan's decision of August 30, 1996,
and it concerns six dockets, including WEST 96-88-M. While it is
true that the case included the issue of examination records, the
types of records concerned examination of working places pursuant
to section 56.18002(a), and record keeping for such examinations
pursuant to section 56.18002(b}. Thus, it would appear to me
that the inspection records in issue in the prior case~~
the kind of equipment inspection defect records that are required
pursuant to section 56.14100(d}, and did not concern equipment
inspections pursuant to section 56.14100(a), the standard cited
in the instant proceedings. Under the circumstances, I find that
344

the fact that the inspection report produced by Mr. Hughes ~ith
respect to the cited water truck may not have been previously
produced during Judge Amchan's hearing is irrelevant, and does
not undercut the credibility of Mr. Hughes or the evidentiary
value of the report that he produced at the hearing in this
matter.
After careful review and consideration of all of the
evidence and testimony, and having viewed Mr. Hughes' during the
course of the hearing, I find him to be a credible witness and
credit his testimony over that of the inspector. I further find
that the petitioner has not rebutted Mr. Hughes' testimony or the
authenticity of the inspection report that he produced. In
short, I conclude and find that the petitioner has failed to
establish a violation of section 56.14100(a), by a preponderance
of the credible evidence adduced in this case. Accordingly, the
citation IS VACATED, and the proposed civil penalty assessment IS
DENIED and DISMISSED.
Citation No. 3908687
The respondent was charged with an alleged violation of
section 56.6132(a) (6), for failing to post warning signs at the
cited explosives magazine located on the property of Foss Lewis,
a mine operator located adjacent to the respondent's property.
The inspector confirmed that he also cited independent
contractor Burt Explosives Company for the violation because its
representative, James Clark, informed him that uhe was kind of
like responsible for putting signs ar·o und," and also cited Foss
Lewis because the magazine was on its property (Tr. 74). The
record established that Burt Explosives owned the magazine and
abated the violation by immediately posting the required signs.
The petitioner stipulated that the magazine was located on
the Foss Lewis mine property adjacent to the respondent's
property (Tr. 77). The respondent stipulated that the cited
structure was a powder magazine, that explosives were stored and
retrieved from the magazine as needed for its use, and that it
had access and a key to the magazine (Tr. 60, 72, 122).
Citing Otis Elevator Co. y. Secretary of Labor, 921 F.2d
1285, 1290 (D.C. Cir. 1990), and Joy Technologies Inc .. y.
Secretary of Labor, 99 F.3d 991 (10th Cir. 1996), the petitioner
asserts that the respondent is responsible for any violation it
causes or controls. In support of its argument, the petitioner
argues that since the respondent admitt~dly stored its explosives
in the magazine, and used t~em, it was equally responsible for ·
making sure the required warning signs were posted.
The respondent argues that it is not liable for failing to
post the signs because it did not own the magazine and it was not
345

on its property. Respondent advan c es the same arguments
presented w~th respect to the prior pickup truck violation, and
points out that it had no right of entry on the Foss Lewis
property where the magazine was located, that most of the
contents of the magazine belonged to Mr. Billings as a result of
his contractor work for Foss Lewis, and that prior to the
inspection Foss Lewis never contacted the respondent to remove
the magazine. Respondent further asserts that it had no reason
to know that it had explosives stored in the magazine because its
practice was only to order explosives for immediate use and long
term storage was generally not necessary.
Notwithstanding its assertion that it had no right of entry
onto the Foss Lewis property, the respondent conceded that it had
access and a key to the magazine, and that explosives were stored
and retrieved from the magazine as required for its use.
However, the fact remains that the magazine was not owned by the
respondent and it was not located on its property. Under the
circumstances, I find no credible evidence to prove that the
respondent had continuous and exclusive control over the magazine
to a degree that obligated it to post a~d maintain the required
warning signs .
Burt Explosives Company representative James Clark,
confirmed that as a matter of practice, the company posted the
signs when the magazine is delivered, and in this case the record
shows that it did in fact post the signs to abate the violation.
Further , the evidence reflects that Foss Lewis, the mine operator
adjacent to the respondent's property, was aware of the fact that
its contractor, Kevin Billings, was keeping explosives in the
magazine on its property for his use in connection with his
blasting work for Foss Lewis . Foss Lewis was free to move the
magazine and prior to the issuance of the violation it requested
Billings , and nQt the respondent , to remove the magazine when he
ceased performing work at its mine.
Foss Lewis manager Griffith testified that Mr. Billings
owned the explosives in the magazine and used the magazine to
store the explosives when he was performing contractor blasting
work at the Foss Lewis mine. He also confirmed that Mr. Billings
purchased and paid for the explosives used at the Foss Lewis mine
(Tr. 14 1 ). Mr. Griffith believed that Mr. Billings last
performed contract blasting for Foss Lewis prior to Christmas of
1994, but continued to keep his supplies in the magazine. Mr .
Griffith further testified that after he ceased working at the
Foss Lewis mine Mr. Billings was hired by the respondent as a
loader operator and Mr. Griffith had no knowledge that he
performed any blasting work for the respondent (Tr. 143-144).
The respondent's pit manager Hughes testified credibly that
Mr. Billings performed contract blasting work for Foss Lewis for
over two years prior to the inspection in November 1995, and used
346

the cited magazine located at Foss Lewis to store his supplies.
Mr. Hughes further testified that after the citation was issued,
the magazine was moved to his mine property _and he purchased all
of the remaining explosives from Mr. Billings.
Mr. Hughes further testified credibly that Mr. Billings went
out of business after he completed his contract work for Foss
Lewis, and that he subsequently hired Mr. Billings as a loader
operator during the spring of 1995. Conceding that Mr. Billings
performed occasional blasting work at that time, Mr. Hughes
stated that Mr. Billings principally worked as a loader operator
for the first six months after he was hired.
Mr. Hughes could not explain the October 27, 1995, invoice
found in the magazine at the Foss Lewis property on November 16,
1995, by the inspector showing a delivery to the respondent's
mine. However, he confirmed that Mr. Billings ordered powder, as
required, for daily use at the respondent's mine, and that it was
supposed to be delivered directly to the pit for use when
blasting was scheduled. Mr. Hughes stated that he was unaware
that Mr. Billings was ordering explosives for long-term storage
in the magazine located at Foss Lewis. Mr. Hughes further
confirmed that he subsequently fired Mr. Billings for a safety
violation.
In the course of the hearing in this matter, petitioner's
counsel asserted that all three of the entities cited for the
violation were jointly and severally liable for maintaining the
warning signs. Counsel conceded that the magazine was not under
the exclusive control of the respondent, and that Foss Lewis
could have removed it, or requested that it be removed from its
property. However, counsel confirmed that Foss Lewis would not ·
presently be cited for any violation because the magazine is no
longer on its property (Tr. 76-77). This concession that Foss
Lewis would no longer be cited or accountable for failing to post
the signs because the magazine is no longer on its property
undercuts the petitioner's assertion that th~ respondent may
nonetheless be liable for the violation even though the cited
magazine was not on its property.
After careful consideration of all of the evidence adduced
with respect to this alleged violation, I am unconvinced and
unpersuaded that the respondent is liable for the violation. I
conclude and ·find that at most, the respondent's access to, and
control over the cited magazine which it did not own, and which
was located some 600 yards from its property, was sporadic and
intermittent, and the respondent was not obligated to post and
maintain the warning signs in question. From an enforcement
perspective, I believe that justice was served by citing the ·
owner of the magazine who supplied and delivered the explosives,
and who admittedly installed the signs initially, as well as
later to abate the violation, and the mine owner on whose
347

property the magazine was located, and who regularly used the
services of ·a contract blaster who owned most of the explosives
found in the magazine. I find no reasonable justification for
citing the respondent in these circumstances.
In view of the foregoing, I conclude and find that the
petitioner has not established a violation attributable to the
respondent and the citation IS VACATED. The proposed civil
penalty assessment IS DENIED and DISMISSED.
Citation No. 3908688
The respondent was cited for a violation of section
56.6101(a), after the inspector found an inoperative pickup truck
with "rubbish and combustible materials" parked within 6 feet of
an explosives magazine. The cited regulation requires areas
surrounding an explosive materials storage facility to be "clear
of rubbish, brush, dry grass, and trees for 25 feet in all
directions."
Citing Otis Elevator Co. y. Secretary of Labor, 921 F.2d
1285, 1290 (D.C. Cir. 1990), and Joy Technologies Inc. y.
Secretary of Labor, 99 F.3d 991 (lOth Cir. 1996), the petitioner
argues that the respondent is responsible for the violation
because the owner of the cited pickup truck, Kevin Billings, was
one of its employees and under its control at the time of the
inspection when the citation was issued.
The respondent argues that it did not own the cited pickup
truck or any of the items in the truck bed, that the truck was
parked adjacent to the magazine on the Foss Lewis mine property
some 600 yards from the south of its property, and that the
respondent had no right of entry onto the Foss Lewis property.
The respondent further argues that the truck was owned by
Mr. Billings, a contract blaster for Foss Lewis prior to his
employment with the respondent. The respondent concludes that
the evidence shows that the parking· of the truck within 25 feet
of the magazine occurred at the time and within the scope of Mr.
Billings contractor arrangement with Foss Lewis and that the
respondent had no control or responsibility for the situation.
In support of its argument, the respondent maintains that at
the time of the inspection, Mr. Billings had not fully concluded
his independent contractor status with Foss Lewis, and that his
truck was located on the Foss Lewis property because he was Foss
Lewis' contractor, and not because he was employed by the
respondent. Further, respondent asserts that when Foss Lewis
wanted the truck removed from its property, it contacted
Billings, and not the respondent, because Foss Lewis understood
that the items in the pickup were present because of Billings'
348

contractual relationship rather than his employment by the
respondent.
The respondent asserts that under well established
principles of agency law it can only be held accountable when its
employees are acting on its behalf, either with actual or
apparent authority. Respondent denies that Billings acted as its
agent when it parked the truck on Foss Lewis property.
Respondent cites the testimony of the inspector and Foss Lewis
pit manager Griffith that the truck had been parked at the same
Foss Lewis site for months, and that the truck was simply left
over from the time Billings had been working as Foss Lewis'
contractor.
Respondent concludes that it is clear that the truck and its
contents were owned and controlled by Billings and placed at the
Foss Lewis property by Billings in his independent contractor
capacity with Foss Lewis, and that his later employment with the
respondent was a mere fortuity giving MSHA an excuse to continue
its hostile campaign against the respondent. Respondent finds it
ironic that it was initially treated more severely by MSHA than
Foss Lewis or Burt Explosives, · and that Billings was not cited,
even though his conduct stemmed from his prior · inqependent
contractor status.
Foss Lewis manager and safety inspector Robby Griffith
testified that at the time of the November 1995, inspection, Mr.
Billings was working for the respondent, but that he previously
provided services to Foss Lewis as a contract driller and blaster
(Tr. 138, 140). Mr. Griffith further ~tated that Mr. Billings
last performed contractor work for Foss Lewis prior to Christmas .
of 1994, and that when he ceased working for Foss Lewis he kept
his equipment and truck on Foss Lewis property adjacent to the
magazine (Tr. 140-141). Mr. Griffith confi~med fhat Foss Lewis
had requeste<:f Mr. Billings to remove his truck "p long time ago"
prior to the November 1995, inspection, and tha ~ the respondent
was asked to remove it only when "we knew we w~·re in violation"
(Tr. 142).
The inspector confirmed that the Foss Lewis foreman told him
that the truck had been parked at the Foss Lewis property "for
months," and that Foss Lewis had been "after Billings and
Lakeview or anyone who was responsible for the equipme.n t to get
it out of there" (Tr. 82} .
Respondent's pit manager, Scott Hughes, testified credibly
that the truck was owned by Mr. Billings and ·that he used it when
he was in business as a driller and blaster contractor working
for Foss Lewis. Mr. Hughes explained that Mr. Billings went out
of business and left his truck and equipment parked at the Foss
Lewis property. Mr. Hughes stated that he had a need for a
blaster so that he could devote more of his time to his pit
349

operation and hired Mr. Billings in the Spring of 1995. Mr.
Hughes further stated that none of the "rubbish" in Mr. Billings'
pickup belonged to the respondent and Mr. Billings did not use
the truck in the performance of his duties while employed with
the respondent (Tr. 420-424).
The petitioner has the burden of proving a violation by a
preponderance of the probative and credible evidence presented in
support of the citation. The petitioner is · correct in its
assertion that a mine operator is responsible for violations it
causes or controls. However, based on the evidence presented
with respect to this violation , I cannot conclude that the
petitioner has proved that the respondent either caused or
controlled the cited alleged violative condition.
There is no evidence of the existence of any brush, dry
grass, or trees near the magazine, and the inspector described
the "rubbish and combustible materials" that were in the truck
bed as plastic oil containers, cardboard boxes, paper, wood, and
an oil storage tank. There is no evidence that any of these
materials belonged to the respondent or were used by Mr. Billings
in the course of his duties while employed by the respondent, and
I find Mr. Hughes' testimony in this regard to be credible.
With respect to the cited truck, the petitioner has not
rebutted the respondent's credible evidence that the truck
belonged to Mr . Billings, that it was inoperative at the time of
the inspection , and that it had been parked on the Foss Lewis
property, some 600 yards from the respondent's property, for
several months prior to the inspection. Under the circumstances,
I find i t reasonable to conclude that the cited "rubbish" found
in the truck was the personal property of Mr. Billings r~sulting
from his work as a contractor performing services on the Foss
Lewis property and that it was outside of the control and
responsibility of the respondent.
I take note of the fact that MSHA also cited Foss Lewis for
this violation. On the facts, of this case , 1 find that MSHA's
attempts to also hold the respondent accountable simply. on the
theory that Mr. Billings was its employee when the citation was
issued is overreaching and arbitrary.
With regard to the petitioner's reliance on the cited~
Eleyator and Joy Technologies decisions, the issue in those cases
was whether or not independent contractors performing services at
a mine were "operators" subject to the Mine Act. In the absence
of any evidence that the respondent had other than a de minimus
connection at best with the cited truck in that i t was simply
owned by one of its employees, I find nothing in these decisions
that supports the petitioner's position. To the contrary, I
conclude and find the respondent has the better part of the
argument. Under the circumstances, I conclude and find that the

350

petitioner has failed to make a case and prove a violation .
Accordingly,· the citatibn IS VACATED, and the proposed penalty
assessment IS DENI~D and DISMISSED.
Order No. 3908679
The respondent was charged with an alleged violation of
section 56.9301, after the inspector found that the materials
dumping location at the north screening plant scalper was not
provided with a bumper block to prevent equipment overtravel.
The cited standard provides as follows:
§ 56.9301 Dump si~e restraints

Berms, bumper blocks, safety hooks, or
similar impeding devices shall be provided at
dumping locations where there is a hazard of
overtravel or overturning.
The inspector stated that he cited a violation because there
was no berm or bumper block at the scalper dumping location to
prevent large wheeled loaders from overtraveling and colliding
with the scalper structure and possibly knocking it over and
causing the loader to overturn or travel 40 to 50 feet down the
embankment. Although each .side of the approach to the scalper
was bermed, the inspector was concerned with overtravel in a
~straight through" direction.
The respondent argues that it had a substantial and well
, constructed "similar impeding device" to prevent overtravel and
that a berm was unnecessary . This "device" was the beam welded
across the front of the scalper as shown in photographic exhibits
P-16. In support of its argument, the respondent asserts that it
presented convincing evidence that the scalper and steel beam
welded in front was solidly entrenched and immovable. The
respondent cites the supporting testimony of Mr. Hughes that the .
scalper was well enclosed and would not move, even when he ran
into it with a loader as a "test," and expert safety consultant
Henkel who confirmed Mr. Hughes' testimony and was of the opinibn
that the scalper structure itself seemed to provide all of the
necessary restraint for any vehicle dumping there.
Relying on the regulatory phrase "similar impeding devices"
found in section 56.9301, and the ALJ and Commission decisions in
Daanen & Janssen, 18 FMSHRC 1796 {October 1996), and United
States Steel Corporation, 5 FMSHRC, 3 at 6, N.6 (January 1983),
holding that a berm must be capable of restraining a vehicle
through reasonable control and guidance of vehicular motion and
not absolute prevention of overtravel under all circumstances, ·.
the respondent concludes that the "rock solid steel beam
structure" was in a position "to interfere with or get in the way
of the progress of" any loaders that might otherwise o~ertravel ·
351

at the dump location and provided at least as good a stop as a
berm.
Respondent asserts that after evidence was introduced that
the steel beam was so solidly embedded that it prevented
overtravel, the petitioner changed i ts position and its counsel
sought to distance herself from the inspector's earlier
admissions that a properly anchored steel beam prevented
overtravel, by asserting that overtravel actually occurred before
hitting the beam ..
The respondent cites the further testimony of Mr. Henkel
that given the size of the loader tires, the steel beam would
impede the loader before it arrived at the edge, and that in
order to have a hazardous overtravel the part of the periphery of
the tire that is on the ground would have to overtravel the
edge, and this would be impossible the way the structure was
configured.
The respondent suggests that the term "overtravel" should be
considered in terms of that travel which is necessary to put a
vehicle in danger of falling from a roadway or going over the
edge. Respondent asserts that in the case of a front end loader
dumping at a grizzly the dump bucket has to hang over the edge in
order to make the dump, and that under the circumstances,
overtravel cannot mean that no part of the equipment hangs over
an edge. Respondent believes that overtravel has not occurred as
long as the vehicle tires remain with solid traction on the
roadway, and if all portions of the tires that normally remain in
contact with the roadway cannot leave the roadway because of the
"impeding device," then that device has prevented overtravel.
The respondent concludes that since the uncontroverted
evidence established that the steel beam in question would
restrain the vehicle from going further then the point where any
portion of the tires would lose traction with the roadway, the
operator would remain in control of the vehicle and no overtravel
has occurred.
In its post-hearing brief, the petitioner asserts that the
violation in question is substantially the same as a prior
violation issued on November 3, 1993, also citing a violation of
section 56.9301, in that in both instances, there was no
impediment to the dump vehicle striking the physical structure,
and the cribbing below the dump area was exposed.
The petitioner points out that the scalper structure did
"shake" when struck by the loader (Tr. 497), that the cribbing
was clearly undermined as shown by photographic Exhibit P-17, and
that the condition of the structure's stabilizing cables could
not be determined because they had been back-filled (Tr. 162167). Under the circumstances, the petitioner concludes that to

352

guard against a vehicle overtraveling and striking the scalper
and the scalpe·r then tumbling down the hillside with the vehicle
falling afterward, a ~ was required as provided for by section
56.9301.
At the hearing, the parties stated their case theories as
follows at (Tr. 436-437):
THE COURT: Are you through with this one?
Let me ask you, counsel, if you were to argue
this cas~ to me on briefs, your conception of
overtravel is that this whole plant has to be shot
down over the hill, right?
MR. SIMONSEN: They cited us and that's what I
hear them saying to me.
THE COURT: I hear them saying overtravel is
when the tires go over that edge and the girder
stops the machine, it's still overtravel. Pushing
over comes to do with the gravity and the
seriousness of it. And my conception is, if those
tires on that loader go over the edge, and I'm
looking at P-16, ~hat's overtravel in MSHA's mind
and that's overtravel within the concept of the
standard. However, if it pushes up against the
girder and knocks the whole contraption down the

hill and the - - followed by the loader, then that
goes to the gravity of the overtravel. Is that
your understanding of that theory of the case, is
that your theory of the case?
MS . NOBLE: That's our theory of the case .
THE COURT: Your theory of the case seems to
be be that it's not overtravel unless it takes
everything down.
MR. SIMONSEN: No. Mr. Hughes just testified
that the front tires, if - - they would prevent
even from going over the edge there, because those
tires are so big they hit that steel girder and
prevent them from even overtraveling under their
theory.
The evidence establishes that berms were provided on each ·
side of the roadway approach to the scalper location where loads
were dumped. However, with respect to the "straight-in" approach
where the loader traveled and stopped to _durnp the loads over the
edge of the scalper structure in front of the steel beam in
question, there was no suitable berm, bumper blocks, or safety

353

hooks, and the inspector cited the violation because of the
absence of a bumper block.
With respect to the issue of overtravel, I conclude and find
that the evidence establishes that part of the front tires of the
loader that dumped at the scalper location passed over the edge
of the drop off under the structure and carne to rest against the
steel beam that was part of the scalper structure. Under the
circumstances, I further conclude and find that this constitutes
overtravel, and I reject any suggestion that the entire piece of
equipment must pass over the edge of the drop off before one can
conclude that it has overtraveled beyond the unprotected area.
I am not persuaded, and I reject, the respondent's argument
that the steel beam which formed an integral part of the scalper
structure itself, constituted an "impeding device similar" to a
berm, bumper blocks, or safety hooks pursuant to, and in
compliance with section 56.9301. There is no evidence that the
beam was installed or intended to serve as a restraining or
impeding device to address hazards associated with the overtravel
of loaders at the cited scalper dumping location.
The inspector's unrebutted testimony reflects that in the
normal course of daily mine production, the loaders would dump
their loads at the scalper location approximately every ten
minutes, and he was concerned about the integrity and undermining
of the structure if it were struck by an overtraveling loader
weighing 15 tons and carrying a bucket weighing seven tons (Tr.
187} .

The respondent's safety expert Henkel did not share the
inspector's concern, and he testified that he has observed other
dumping locations where the structure itself is used in lieu of a
berm, and after observing a loader strike the structure, "it
shakes a little bit," but still appeared solid (Tr. 497, 500).
Mr. Henkel further testified that in order to "get a better feel"
for how the loader would react to "a good solid thump," the
respondent ran the loader into the I-beam, and although the
structure shook "a little bit," Mr. Henkel was of the opinion
that "it reacted solidly" (Tr. 500). However, he also stated
that he would not recommend running a front-end loader into the
scalper I-beam (Tr. 500).
I find it reasonable to conclude that over a period of time,
daily and constant loader overtravel and contact with the scalper
will ultimately adversely affect its structural integrity and
present a potential hazard to the loader operators. Indeed, the
respondent's safety expert tacitly conceded as much when he
recommended against the loader running into the steel beam that
is part of the structure . Under the circumstances, and in the
absence of an independently instal led restraining device, I
conclude and find that any loader overtravel , regardless of the
354

degree, that results in the repeated striking of the scalper
structure itself presents a potential hazard to the equipment
operators using the dumping facility in the event the weakened
structure is knocked over, or moved off its moorings in such a
way as to allow the vehicle to continue over the embankment or
ov.erturn with the structure. Under all of these circumstances, I
conclude and find that a violation of section 56.9301, has been
established, and IT IS AFFIRMED.
Order No. 3908680
The respondent was charged with a violation of section
56.14112(a) (1), after determining that the guard on the conveyor
belt tail pulley located at the north side .screening plant"~
not maintained in a condition which would preyent contact with
the moving self cleaning tail pulley" (emphasis added). The
cited standard, section 56.14112(a) (1), provides as follows:
(a)

Guards shall be constructed a.n d maintained to( 1) 'Withstand the vibration, shock, and wear to which
they will be subjected during operation;
The respondent argues that the inspector first cited an
alleged violation of section 56.14107, dealing with the danger of
exposure to human beings because of missing guards, but
subsequently modified the order to allege a violation of section
56.14112(a) (1). The respondent asserts that an examination of
the inspector's testimony shows that he said little or nothing
concerning section 56.14112(a) (1), and that the only testimony
concerning the strength and resilience of the guards was the
testimony of Mr. Hughes who explained that the respondent has
tried several different types of guards and has used conveyorbelt type guards to preclude any welding spots breaking off.
The respondent further argues that the inspector admitted
that he made a mistake, but claimed it was a misprint and that he
should have indicated that he was concerned ~bout contact by the
employees with the moving tail pulley. However, the respondent
maintains that it appears that the inspector tried to correct his
mistake by changing the standard under whi9h it was cited, but
then tried to testify concerning employee contact. The
respondent maintains that it is entitled to clearly understand
the standard under which it is being cited and the grounds for
the alleged violation. Since the grounds for the alleged
violation and the cited standard itself do not match, the
respondent believes the order should be vacated.
The inspector testified that there were four guards around
the tail pu'lley but that the rear guard was pulled away and the
side guard was completely removed and placed on top of the
conveyor belt (Tr. 212). He stated as follows at (Tr. 217):

355

Q. Do you, as an inspector, care whether
they have mesh guards or used some old belting
material?

A. No, I do not, as long as an employee or
persons cannot make contact with the tail pulley,
and that's the main reasoning of the guarding is
to make sure that that tail pulley is not
accessible to contact.
In response to questions from the petitioner's counsel
concerning the purpose of section 56.14112(a), the inspector
responded as follows at (Tr. 229):
THE WITNESS: To bar employees from
contacting the tail pulley .
Q.
(By Ms. Nobel) And what is - - what is
the shock, vibration and wear that you were
concerned about here?

A. The shock, vibration and wear is the
operation of the equipment and the guards being
either ripped off or knocked off by the normal
operation of the conveyor belt.
The inspector's testimony in support of the alleged
violation was limited to potential hazards associated with an
employee possibly contacting the exposed pulley through the
opening caused by the pulling away of the guard. There is
absolutely no evidence or testimony that the cited guard
condition was caused by .vibration, shock, or wear.
At the hearing , the petitioner's couns el asserted that the
inspector testified that "the wear of the guards caused these
things to be knocked over and pulled off, and that ' s what he was
concerned about" (Tr. 230). I have reviewed the inspector's
testimony and find no such testimony. The only testimony
remotely resembling the suggested testimony is the inspector's
opinion that "constant wear and tear probably deteriorated (the
guards) to the point where something else did have to be put on"
(Tr . 223) . There is absolutely no credible evidence to support
the inspector ' s speculative opinion.
I further find no credible evidence to establish a nexus
between the cited conditions and the requirements of the cited
standard. It seems obvious to me that the inspector simply made
a mistake and cited the wrong standard, and petitioner's efforts
to rehabilitate him in the course of the hearing are unavailing.

356

Although administrative pleadings such as -civil penalty
assessment proposals are easily amendable, the petitioner did not
seek an amendment to cite the correct standard, even after the
parties were made aware of the Court's concern that the
inspector's testimony in support of the violation had nothing to
do with the requirements of the cited standard (Tr. 229-230).
And, at (Tr. 230), which reflects as follows:
THE COURT: They weren't cited with people
being exposed. He should have also cited, if
that's the theory, 57.14107, cite both of them,
but he didn't. He cited one, and then he changed
it to the other.
MS. NOBLE: But, Your Honor, the purpose of
the Mine Safety and Health Act is to protect
people not equipment.
THE COURT: And the purpose of a legal
proceeding is to do things legally correct.
I conclude and find that the respondent has failed to prove
a violation of the cited standard section 56.14112(a) (1), and the
order and violation ARE VACATED. The proposed penalty assessment
IS DENIED AND DISMISSED.
Order No. 3908703
The respondent was charged with a violation of section
56.14112(b), after the inspector found· that the Fab Tee conveyor
tail pulley guard had been pulled away, leaving an opening of six
inches wide by 15 inches high, and exposing the self cleaning
tail pulley to possible contact. The cited standard required the
guard to be constructed and maintained so as to not create a
hazard by its use.
The respondent has not rebutted the inspector's credible
testimony that the cited tail pulley guard was pulled away
exposing the tail pulley, and photographic exhibit P-23, clearly
shows that this was the case. I conclude and find that the
condition of the guard created a hazard and that the guard was
not maintained in such a manner so as to prevent the hazard of
someone possibly contacting it. Under the circumstances, I
conclude and find that a violation has been established, and the
violatio~ IS AFFIRMED.
Order No. 3908704
The respondent was changed with a violation of section
56.11027, after the inspector observed that a 55-gallon empty
steel drum that was located under an elevated electric motor
switch box was installed on the frame of a .head cone screen, was

357

turned upside down. The cited standard requires that "working
platforms shall be of substantial construction and provided with
handrails and maintained in good condition.?
The inspector testified that the plant was not in operation
when he observed the steel drum from his vantage point in the
elevated pit control booth (Photographic Exhibit P-27, Tr. 253,
257). He assumed that someone would stand on the drum to reach
the switch box, and he issued the violation because he considered
the drum to be a work platform that was not of substantial
construction and . had no railings. He also considered the fact
that the drum was unsecured and was located on "unstable dirt and
was leaning to the right."
The inspector confirmed that he never observed anyone stand
on the drum, and he did not know how frequently the control box
needed to be accessed. Although he alluded to "some kind of
disturbanceu in the dirt around the drum, leading him to conclude
"that people have been going towards it," and agreed that the top
of the drum may have been dusty, he observed no footprints on top
of the drum (Tr. 259-271).
The inspector confirmed that the switch box could be reached
by someone standing on the !-beam under it, but he would consider
this to be unsafe (Tr. 256). Although he agreed that a ladder
may have provided safe access to the switch box, the inspector
did not know whether a step ladder was close by and available for
use (Tr. 269).
Respondent's pit manager, Scott Hughes, testified that the
drum in question was intended to be used as a garbage can and
that he never told anyone to turn it upside down under the switch
box in question. He further testified credibly that access to
the box is limited to once every month or every three months, and
that ladders located 80 to 100 feet away were provided to access
the box, and that he has used a ladder to reach the switch box
(Tr. 450-452) .
In support of this violation, the petitioner asserts that
the steel drum, which was opened on one end, was turned over so
that the unopened end was available for employees to use as a
platform to gain access to the control box. The petitioner
points out that this same type of violation was cited during an
August 1995 inspection when access to the contr ol box at that
time was gained by standing on an empty wire spool. Photographic
Exhibit P-27, shows the cited drum turned upside down at the base
of the control box, and Exhibit P-26, shows the empty spool and
what appears to be a steel drum with the top opened next to it.
In its post-hearing brief, the respondent does not dispute
the fact that the drum in question was ordinarily used for
garbage, and that it was turned upside down and located under the
358

switch box in question. The respondent confirms that it was
previously cited for using the empty wire spool to access the
switch box, and it would appear that it did not contest that
violation and may have paid the penalty asseisment.
The respondent confirmed that it abated the violation by
turning the drum over and painting "trash" on its side. The
respondent points .out that other than the placement of the barrel
under the switch box, the inspector observed no signs that anyone
was using it to access the box, and that ladders were available
nearby for an employee to use to reach the box. However, the ·
respondent primarily disputes the inspector's unwarrantable .
failure finding, and states that "Evidently, certain employees
may have found it more convenient to grab the trash barrel than
the ladder."
There is no direct evidence that the inspector personally
observed anyone stand on the drum to access the switch box.
However, I find it very unlikely that the inspector would ever
observe anyone stand on the drum since all work was discontinued
when the inspector appeared for his inspection. However, given
the fact that the respondent was cited four months earlier for
using the cable spool to access the switch box, and the fact that
the drum which was normally used for garbage was turned upside
down and placed at the same location where the spool was
previously located under the switch box, there is a strong
inference that the drum was also used to access the switch box
when it became necessary to do so. This conclusion is supported
by the respondent's tacit admission that its employees may have
found it more convenient to use the drum rather than a ladder to
reach the switch box. Under the circumstances, I ·conclude and
find that the petitioner has established a violation, and IT IS
AFFIRMED.
Order No. 3908708
The respondent was cited for a violation of section
56.6132(a) (6), for failing to post signs at the location where
cap and powder day boxes were located at the upper pit area of
the mine. Although the cited standard applies to magazines, the
comparable section 56.6133(a) (2) standard requiring the posting
of signs for powder day boxes is virtually identical. Further,
respondent's counsel agreed that day boxes also require warning
signs (Tr. 288). Under the circumstances, I cannot conclude that
the use of the term magazine, rather than day box, in the
citation has p~ejudiced the respondent or rendered the citation
defective.
The respondent's post-hearing brief does not address this
violation. The petitioner's credible evidence establishes that
the required signs were not ·posted, and I find that a violation
has been established. Accordingly, the citation IS AFFIRMED.
359

For the reasons stated in connection w ~th cita tion Nos.
3908709 and 3908710, the respondent 's assertion tha t it was not
respons i ble for the day boxes IS REJECTED .
Citat ion No. 3908711
The respondent was charged with a violation of section
56.613l(b ) , after the inspector found that the two previously
cited cap and powder magazine were located within 7 feet of each
other, rather th~n the separation dis tance stated in 27 C.F.R.
55.218, a Tabla of distances for storage of explosive materials,
a regulation of the U. S . Treasury Department's Bureau of Alcohol,
Tobacco and Firearm (ATF). According to the inspector's
calculations pursuant to the ATF tables, the two cited magazjnes
should have separated by a distance of 58 feet. Further, as
previously noted, the inspector characterized the day boxes as
magazines (Tr. 288).
According to ATF regulation 27 C.F.R. 55.209, a "day box" or
"other portable magazine" is classified as a type 3 magazine . A
type 3 magazine is further described at section 55 . 203(c), as a
"portable outdoor magazine for the temporary st.orage of high
explosives while attended (for example, a 'day box')."
30 C.F . R. 56.6131, covers the location of explosive material
storage facilities. The cited subsection (b), provides as
follows:
(b) Operators should also be aware of
regulations affecting storage facilities in 27
C.F.R. Part 55. in particular. §§ 55.218 and
55.220. This document is available at any MSHA
Metal and Non-Metal Safety and Health district
office.
(Emphasis added).
The insp~ctor testified that he was required to follow the
ATF regulations when inspecting magazines (Tr. 291). However, he
further stated that apart from the ATF regulations, he was not
aware of any MSHA day box regulatory standard that required them
to be separated by any certain distance (Tr. 293, 299).
At the hearing, petitioner's counsel confirmed that the ATF
Title 27 , sections 55 . 218 and 55.220, have not specifically been
incorporated by reference as part of any MSHA regulatory standard
other than the reference made to those sections in MSHA's section
56 . 613l(b), regulation. However, counsel took the position that
the language found in s ubsection (b) stating that operators
"should also be aware of" the ATF regulations in question means
~shall be aware of and follow" (Tr. 299).
The respondent does not address this violation in its posthearing brief. The petitioner simply states that pit manager
360

Hughes, a licensed blaster, "should have been aware of the ATF
standard mentioned in MSHA's section 56.613l(b) regulation and
made certain that the boxes were properly separated.
The petitioner's assertion that the respondent was required
to follow the ATF separation distances with respect to the cited
day boxes is rejected. In my view, the language "shall be aware
of" cannot be reasonably interpreted to read "shall be aware of
and shall be followed" without amending the regulation • . If MSHA·
believes that t~e ATF tables of separation distances are
mandatory and binding on mine operators, subjecting them to civil
penalty assessments for noncompliance, it should adopt and
incorporate the ATF regulations, or amend its own regulations,
with appropriate notice to all mine operators. Under the
circumstances, I conclude and find that the petitioner has failed
to establish a violation, and the citation and proposed penalty
assessment ARE VACATED.
Citation Nos. 3908709 and 3908710
The respondent was charged with two violations of section
56.6132(a) (4), after the inspector found that two metal cap and
high explosives magazines were constructed in part with exposed
interior carriage bolts (2 in each magazine) that were not made
of brass or other non-spatking· material.
The cited section 56.6132(a) (4), requires that explosives
magazines be "made of nonsparking material on the inside."
Although the citations issued by the inspector refer to
magazines, the evidence establishes that they were in fact powder
chests or "day boxes" that are covered by section 56.6133(a) (1),
that requires day boxes to be structurally sound, weatherresistant, equipped with a lid or cover, and "with only
nonsparking material on the inside."
The inspector explained that the cited "magazines• were
smaller than the larger explosives storage magazine previously
cited by inspector Pennington (Citation No. 3908687), and he
described them as "day boxes for the storage of explosives on a
daily basis in the immediate area where they are going to be
used" (Tr. 274). He estimated that they 4 feet long, 3 feet
wide, and 3 to 4 feet deep, {Tr. 277). And he explained the
difference between a magazine and a day box (Tr. 277, 287-288).
Although I find that section 56.6133(a) {1), covering day
boxes, is the more appropriate standard that should have been
cited by the inspector, I take note of the fact that both
regulatory standards require that the interior of magazines and
day boxes be constructed of nonsparking materials. Under the
circumstances, even though the inspector acknowledged that he
identified the day boxes as magazines, I cannot conclude that the
respondent has been prejudiced or that the citations are

361

defective.
Day boxes and magazines are, for all intents and
purposes functionally equivalent insofar as the storage of
explosive materials are concerned, and as previously noted, both
regulations require nonsparking materials for interior
construction.
The unrebutted credible evidence presented by the petitioner
establishes that the cited boxes contained interior bolt heads
that were not constructed of brass or other nonsparking material.
Accordingly, I conclude and find that the petitioner has
established the violations, and the citations ARE AFFIRMED.
The respondent's post-hearing brief does not address these
violations. The respondent's suggestion during the hearing that
it was not responsible for the violations because the cited day
boxes were owned by the Burt Explosives company IS REJECTED. The
boxes were on the respondent's property, and the respondent had a
key to the boxes, exercised continued custody and control over
the boxes, and admitted that it supplied and stored explosives
and materials in the boxes for its use as required at the pit
site (Tr. 465, 467, 470).
Citation No. 3908706
The respondent is charged with a violation of section
56.11002, for failing to maintain two sets of stairs "in a safe
manner." The cited standard requires stairways to "be of
substantial construction provided with handrails, and maintained
in good condition."
The credible and unrebutted testimony of the inspector
reflects that the two stairways in question were in disrepair in
that one stairway had part of the handrails cut off and the sharp
ends of the bare pipe were protruding, and a sharp edge existed
at another location where the railing was cut off. The second
cited stairway had one step that was bent. Under the
circumstances, I conclude and find that while the stairways
appeared to be substantially constructed, and provided with
handrails, they were not maintained in good condition as required
by the regulation. Accordingly, I conclude and find that a
violation of s~ction 56.11002, has been established, and the
citation IS AFFIRMED.
In its post-hearing brief, the respondent argues that the
cited stairs were under construction when the inspectors arrive,
but they were unaware of this because pit manager Scott Hughes
was required to leave the mine site . The respondent asserts that
employee Darren Parris testified that he was constructing the ·
stairs when the inspectors arrived, that his work was partially
completed, and that he was compelled to leave first to accompany
the inspectors, and then to work on other violations that
required abatement.

362

While it is true that Mr. Parris testified that he was
performing some work on the stairways when the inspectors
initially arrived at the site , and that he interrupted his work
to accompany the inspector, he confirmed that he was not with the
inspectors when the stairways in question were cited, and that he
did not inform them of the work that he had performed. In
addition, he provided no testimony or evidence to rebut or
dispute the cited stairway conditions when they were observed by
the inspector. · Under the circumstances , the fact that he may
have performed some repair work on the cited stairs on the
morning of the inspection before the arrival of the inspectors
does not excuse the violation . There is no evidence that the
stairways in question were barricaded, tagged, or otherwise taken
out of service when the work was interrupted, and it would appear
that the stairways were available and in use while in disrepair.
Citation No. 3908707
The respondent was charged with a violation of section
56.9300(a), after the inspector observed a loader parked within
four feet of a drop off of approximately 30 feet at a location
that contained no berm for a distance of approximately 18 feet.
The cited section 56.9300(a), provides as follows:
(a) Berms or· guardrails shall be provided and
maintained on the banks of roadways where a dropoff exists of sufficient grade or depth to cause a
vehicle to overturn or endanger persons in
equipment.
The respondent's post-hearing brief does not address this
violation. In its brief, the petitioner points out that the
loader was backed up to within four feet of a steep 30-foot
slope, and when the inspectors climbed into the vehicle to
determine whether there was a clear view to the rear, they could
not see the edge of the slope even though the loader was within
four feet of the drop off .
The petitioner further asserts that the load~r is an easily
maneuvered vehicle that moves quickly, and it concludes that an
accident could happen quickly with the vehicle located so close
to the edge of the drop off and no berm to prevent it from
dropping off, particularly while backing up with no clear view to
the rear.
The unrebutted credible testimony of the inspector
establishes that the cited loader was backed into and parked
within four feet of the edge of the drop off of a 30 foot
incline , and there was no berm to prevent or restrain the vehic~e
from traveling over the edge of the incline. I conclude and find
that the absence of the berm at the edge of the drop-off at the
steep incline could cause a vehicle to overturn or endanger

363

persons in the equipment if it were to roll over the edge and
down the incline. Accordingly, I conclude and find that a
violation of section 56.9300(a), has been established, and the
citation IS AFFIRMED.
Citation No. 4333365
The respondent was cited with a violation of section
56.14107(a), for failing to guard a self cleaning tail pulley on
the stacker conveyor belt located under the orange screening
plant at the north side of the mine property. The respondent
conceded the violation and agreed to pay the proposed civil
penalty assessment of $111 (Tr. 356). Accordingly, the citation
IS AFFIRMED.
Significant and Substantial violations
A "significant and substantialH (S&S) violation is described
in section 104(d) (1) of the Act as a violation "of such nature as
could significantly and substantially contributed to the cause
and effect of a coal or other mine safety or health hazard.H 30
C.F.R. § 814(d) (1). A violation is properly designated S&S "if,
based upon the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonable serious
nature.H Cement Division. National Gypsum Co., 3 FMSHRC 822, 825
(April 1981).
In Mathies Coal Co., 6 FMSHRC 3-4 (January 1984), the
Commission explained its interpretation of the term "S&SH as
follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of
a mandatory safety standard; (2) a discrete safety
hazard - - that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable
likelihood that the injury in questions will be of
a reasonably serious nature.
See also Austin Power. Inc. v. Secretary, 861 F.2d 99, 10304 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria).
The question of whether any particular violation is S&S must
be based on the particular facts surrounding the violation,
including the nature of the mine involved, Secretary of Labor v.
Texasgulf. Inc., 10 FMSHRC 498 (April 1987). Youghiogheny and

364

Ohio Coal Company, 9 FMSHRC 2007 (December 1987). Further, any
determination of the significant nature of a violation must be
made in the context of continued normal mining operations.
National Gypsum, supra, 3 FMSHRC 327, 329 (March 1985). Halfway.
Incorporated, 8 FMSHRC 8 (January 1986) . ..
In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We hav~ explained that the third element of
the Mathies formula 'requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which
there is an injury.' U.S. Steel Mining Co., 6
FMSHRC 1834, 1836 (August 1984). We have
emphasized that, in accordance with the language
of section 104(d) (1), it is the contribution of a
violation to the cause and effect of a hazard
that must be significant and substantial. ~
Steel Mining Company. Inc., 6 FMSHRC 1866, 1868
(August 1984).
The Commission reasserted its prior determinations that as
part of his "S&S" finding, the Secretary must prove the
reasonable likelihood of an· injury occurring as a result of the
hazard contributed to by the cited violative condition or
practice. Peabody Coal Company, 17 FMSHRC 508 (April 1995); ~
Walter Resources . Inc., 18 FMSHRC 508 (April 1996).
Order Numbers 3908704, 3908708 , and citation numbers 3908709
and 3908710 were all issued as non~"S&S" violations. These
findings of the inspectors are all AFFIRMED.
"S&S" Order No. 3908703
The respondent's post- hearing brief does not address this
violation and the respondent has not rebutted the inspector's
credible testimony that the Fab Tee conveyor tail pulley guard
was pulled away, leaving an opening six inches wide and 15 inches
high , exposing the self cleaning tail pulley to the possible
hazard of someone contacting it while the belt was in operation.
Indeed, respondent's expert safety witness testified that he
would have been concerned had he observed the condition (Tr~
501) .
Although the inspector did not determine whether the pulley
had sealed bearings that requires no greasing and found no
extended grease fittings, he stated that lubrication is usually ·
done while the conveyor is in operation and someone would h~ve
easy access to the belt and tail pulley and could be close enough
to contact the unguarded pulley while walking by o.r making belt
adjustments.
365

Mr. Hughes stated that the tail pulley bearings are sealed
and lubricated and require no greasing, and he confirmed that
belt adjustments are made, but at another location. The
inspector testified that there was a three to four inch opening
on the side of the belt where the - guarding was down and where
belt adjustments were made. Although he did not include this
condition in his order, his credible and unrebutted testimony
that the belt is easily accessed, as corroborated by Mr. Hughes'
testimony that belt adjustments, apart from any greasing, is
done, supports a reasonable conclusion that someone would be in
close proximity to the conveyor belt tail pulley and exposed to a
potential hazard in the normal cause of mining while the belt was
in operation during the time that the guarding was not maintained
in such a manner so as to not present a hazard by its use .
I conclude and find that the failure to maintain the
guarding provided at the cited conveyor belt tail pulley area
presented a discrete hazard of someone in the affected area being
exposed to the hazard of contacting the exposed pulley while
making belt adjustments or otherwise working in the area.
If
this were to occur in the normal course of mining operations with
the belt in operation, I conclude and find that it would be
reasonably likely that anyone coming in contact with the
operating pulley would suffer injuries of a reasonably serious
nature. Accordingly, the inspector's "S&S" finding is AFFIRMED.
"S&S" Citation No. 3908706
The respondent's post hearing brief does not address the
gravity of this violation concerning the cited stairways that
were in disrepair.
Further, the respondent has not rebutted the
inspector's credible testimony that the sharp and protruding ends
of the bare handrail pipes presented a hazard to anyone using the
stairways in the event they were to ship or fall while descending
one stairway that had a bent step, or falling on the sharp pipe
ends while walking along the inclined slippery pathway between
the two stairways. Indeed, the respondent's expert safety
witness Henkel expressed his concern about the cited condition
(Tr. 501) .
I conclude and find that the failure to maintain the cited
stairways in good condition, presented a discrete injury hazard
if someone were to trip and fall while descending the stairways
or walking from one set of stairs to the other along the inclined
slippery pathway. If this were to occur, I believe it was
reasonably likely that the person would fall against or impale
themselves on the sharp exposed and unprotected edges of the
sharp end protruding handrail pipes. Should this occur, I find
it likely that the person would suffer injuries of a reasonably
serious nature. Under the circumstances, the inspector's "S&S"
findings IS AFFIRMED.

366

"S&S" Citation No. 3908707
The respondent did not address this violation in its posthearing brief. However, I conclude and find that the absence of
a berm for a distance of some 18 feet where a loader had been
backed up and parked within four feet of ·a drop off of
approximately 30 feet, and where the inspector determined that he
could not see the edge of the drop off from the equipment
operator's compartment, supports the inspector's unrebutted
determination that the violation was significant and substantial
(S&S).
I conclude and find that in the normal course of mining
operations, the failure to provide a berm at the edge of a
substantial drop off of some 30 feet to alert the loader operator
that he was approaching the edge, or to restrain or prevent the
vehicle from backing over the edge, particularly where the driver
has no clear view of the edge of the drop off from his operator's
compartment while backing up, presented a discrete hazard of the
loader traveling over the edge of the 30 feet drop off. If this
were to occur, I further conclude and find that it was reasonably
likely that the vehicle would overturn and the driver would
reasonably likely suffer injuries of a reasonably serious or
fatal nature. Under the circumstances, the inspector's "S&S"
finding IS AFFIRMED.
Order No. 3908679

The inspector testified that he based his "S&S" finding on
his belief that the scalper structure ·was being undermined in
that the support timbers and cribbing were hanging out in midair.
He further stated that "the integrity of the supports of the
scalper were not known" (Tr. 162-163).
The petitioner confirmed that the violation is substantially
the same as a November 3, 1993, violation of section 56.9301, for
the lack of a bumper block at the same scalper location that had
exposed cribbing. This prior violation was a section 104(a) non"S&S" citation (Exhibit P-15), that was assessed a penalty of
$50, by Judge Amchan at the request of the petitioner in a prior
proceeding, 17 FMSHRC 83, 89 (January 1995). I take note that
the inspector in that instance abated the violation after "a berm
was installed as a bumper block," and even though he stated on
the face of the citation that the scalper foundation was weakened
by undercutting, he nonetheless found that the · violation was non"S&S."
In the instant case, the inspector based his "S&S" finding
on his observations that the scalper cribbing and support timbers
were being undermined, and his lack of any knowledge concerning
the integrity of the scalper supports. It would appear from this
367

that he believed that principal means of supporting the scalper
was the cribbing that "stuck out," when viewed from under the
structure.
Although respondent's safety consultant confirmed that he
was not present during the inspections that resulted in the
issuance of all of the violations, he testified credibly that he
examined the cited sca lper structure, observed the supporting
cables that were anchored in concrete, as well as a "test" when a
loader ran into the scalper !-beam to test its stability. Based
on this, he concluded that the cited scalper was "solid and
pretty sound" (Tr. 497, 500).
Pit manager Hughes testified credibly that he has inspected
the plant for five or six years and that he can visually observe
the cables from under the scalper hopper, and if they were
breaking or loosening he would see some slacking of the cable.
However, he testified credibly the cables were pulled tight
against th~ plant, and he observed no evidence that the plant has
moved since it- was installed (Tr. 435).
Although I have concluded that continued loader contact with
the scalper I-beam in question will likely over time uitirnately
affect its structural integrity, in the absence of any evidence
that the structure's anchoring cables were damaged or weakened,
or that the structure was in fact weakened by the exposed
cribbing, I cannot conclude that the ·cribbing condition, standing
alone, weakened the structure and presented a hazard if normal
mining operations were to continue after the inspection. As a
matter of fact, the inspector testified that the cribbing was
hanging out as a result of the removal of large boulders, and
there is no evidence that the cribbing condition was the result
of any movement of the structure itself (Tr. 162) . Further, I
note the absence of any evidence that the cribbing condition
observed by the inspector was required to be corrected as part of
the abatement of the violation. Since it was not, there is an
inference that the cribbing condition dld not adversely affect
the stability of the structure. ·
In view of the foregoing, I cannot conclude that the facts
and circumstances presented at the time of the inspection, and in
the context of continued mining operations, support the
inspector's "S&S" finding. In short, I cannot conclude that the condition of the plant was such to support a conclusion that it
was reasonably likely that the structure itself was undermined
and posed a threat of collapse. My concern for any hazard
associated with the violation is in the context of loader
overtravel that results in repeated collisions with the structure
itself, a situation that hopefully will be averted by maintaining
a separ~te bumper block in place, coupled with regular
inspections of the cables to insure ' the structure is securely in

368

place. Under all of these circumstances, I conclude and fin d
that the violation was non-us&s,n and the inspector's initial
"S&S" finding IS VACATED.
Unwarrantable Failure Violations
The Section 104(d) "Chain".
At page 10 of its post-hearing brief, the petitioner
asserted that t~e first order in the "d seriesn were section
104(d) (2) Order Nos. 4120704 and 4120705, issued by Inspector
Richard Nielsen durin.g a November 3, 1993, inspection. Counsel
points out that former Commission Judge Arthur Amchan affirmed
both orders in a Jariuary 30, 1995, decision, Lakeview Rock
Products. Inc., WEST 94-308-M and WEST 94-309-M, 17 FMSHRC 83,
88-9 (January 1995), and that there was no "cleann inspection
between Inspector Nielsen's order and the orders at issue in
these proceedings.
Inspector Okuniewicz testified that he relied on the prior
order issued by Inspector Nielsen as the basis for his orders and
confirmed that prior to beginning his inspection, he reviewed his
office files regarding prior inspections and found there were no
intervening clean inspections of the respondent's mine (Tr. 164166) .

The respondent does not dispute or rebut the fact that the
underlying section 104(d) (2) order was procedurally correct in
that no intervening "clean" took place between the issuance of
the underlying supporting order and the inspections conducted in
the instant proceedings. Accordingly, I conclude and find that
the petitioner has established that the orders were procedurally
correct.
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held~ in pertinent · part, as follows at
295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any
mandatory standard was caused by an unwarrantable
failure to comply with such standard if he
determines that the operator involved has failed
to abate the conditions or practice constituting
such violation, conditions or practices the ·
operator knew or should have known existed or
which it failed to abate because of a lack of due
diligence, or because of indifference or lack of
reasonable care.

369

In several decisions concerning the interpretation a nd
application of the t erm "unwarrantable failure," the Commission
further refined and explained this term, and concluded that it
means "aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the
Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 1987);
Youghiogheny & Ohio Coal Compan y, 9 FMSHRC 1007 (December 1987 ) ;
Secretary of Labo r v. Rushton Mining Company, 10 FMSHRC 249
(March 1988). Referring to its prior holding in the Emery Mining
case , the Commission stated as f ollows in Youghiogheny & Ohio, at
9 FMSHRC 2010:
We stated that whereas negligence is conduct
that is "inadvertent ," "thoughtless" or
"inattentive ," unwarrantable conduct is conduct
that is described as "not justifiable" or
"inexcusable." Only by construing unwarrantable
failure by a mine operator as aggravated conduct
constituting more than ordinary negligence, do
unwarrantable failure sanctions assume their
intended distinct place in the Act's enforcement
s c heme.
In Emery Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC '2001:
We first determine the ordinary meaning of
the phrase "unwarrantable failure."
"Unwarrantable" is defined as "not justifiable" or
"inexcusable." "Failure" is defined as "neglect
or an assigned, expected, or appropriate action."
Webster's Third New International Dictionary
(Unabridged), 2514, 814 ( 1971) ("Webster's").
Comparatively, negligence is the failure to use
such care as a reasonably prudent and careful
person would use and is characterize d by
"inadvertence," "thoughtless," and "inattention."
Black's Law Dictionary 930-931 (5th ed. 1979 ) .
Conduct that is not justifiable and inexcusable is
the result of more than inadvertence,
thoughtlessness, or inattention. * * *
In New Warwick Mining Compan y, 18 FMSHRC 1568, 1573
(September 1996), the Commission affirmed former Commission Judge
Amchan's finding that a coal accumulations violation of 30 C.F.R.
75.400, resulted from the mine operator's unwarrantable failure
to comply with the standard . The Commission reiterated that it
"has recognized that a number of factors are re levant in
determining whether a violation is the result of an operator's
unwarrantable failure, such as the extensiveness of the
violation , the length of time that the violative condition has
existed, the operator's efforts to eliminate the vi ola tive

370

condition, and whether an operator has been placed on notice that
greater efforts are necessary for compliance."
The Commission further stated its past recognition of the
fact that "repeated similar violations may be relevant to an
unwarrantable failure determination to the extent that they place
an operator on notice that greater efforts are necessary for
compliance with a standard," citing Peabody Coal Co., 14 FMSHRC
1258, 1261 (August 1991); and Drummond Co., 13 FMSHRC 1362, 1368
(September 1991). ~ ~: Enlow Fork Mining Company, Docket
Nos. PENN 94-259 ~nd 94-400, January 15, 1997.
In the New Warwick Mining Company case, the record reflected
that during the preceding inspection ending on June 30, 1993,
before the July 1993, inspection and violation of section 75.400,
MSHA found 16 violations of the same standard, and that twice
during the two days preceding the issuance of the violation the
inspector informed the mine operator that similar accumulations
were not ·permitted and received assurances from the operator that
preventive measure would be taken to avoid unwarrantable failure
violations.
In the Peabody Coal Co., case, at 14 FMSHRC 1263, the
Commission took note of the. fact that in finding an unwarrantable
failure violation of section 75.400, the judge considered the
fact that Peabody had been cited 17 times over the preceding six
and a half months for similar violations, and that the cited
conditions had been noted in approximately seven of the preceding
preshift reports, and were obvious and extensive requiring
significant abatement efforts.
I conclude and find that an operator's history of prior
violations is but ~ factor to be considered in determining
whether or not its conduct associated with those past violations
demonstrates aggravated conduct. Indeed, the Commission-has held
that a judge should consider all operator conduct relevant to a
violation in determining whether it resulted from unwarrantable
failure. Helen Mining Company, 10 FMSHRC 1672, 1676 n.4
(December 1988); Emery Mining Corp., 9 FMSHRC 1997, 2004-2005
(December 1987); and Jim Walter Resources. Inc., 18 FMSHRC SO~,
512 (April 1996), affirming a judge's conclusion that DQ_
inference as to gross negligence or unwarrantable failure could
be drawn solely from one prior violation.
Order No. 3908679
Inspector Okuniewicz based his unwarrantable failure finding
on the fact that Inspector Nielsen cited a similar scalper bumper
block violation of section 56. 9301, ov.e r two years earlier on
November 3, 1993, when he issued a section 104(a) non-"S&S"
citation for that violation. He also stated that this prior
violation was not timely abated, and that Mr. Nielsen issued a

371

section 104 (b ) o rder. However, the inspector had no knowledge a s
t o why the ~i o l a tion was not timel y abated. Further, Mr. Nielsen
did not tes t ify, and there is no c redible . evidence ot record tha t
he in fact issued a section 104(b) order, other than the Mr.
Okuniewicz's unsubstantiated recollection, and he admitted that
he did not determine how long his cited condition had existed
prior to his inspection.
Exhibit P-15 is a copy of Mr. Nielsen's November 3, 1993,
citation, and on i t s face it reflects that the respondent took
immediate corrective action i n abating the cited condition, and
Inspector Nielsen terminated t he citation one-half hour before
the expiration of the abatement time. Under the circumstances, I
am at a loss to understand Inspector Okuniewicz's belief that the
cited condition was not timely abated, and he could offer no
explanation when asked about this during the hearing (Tr. 202).
In further response to questions concerning the
unwarrantable failure issue, petitioner's counsel and inspector
witnesses stated as follows at (Tr. 196-202):
THE COURT: Well, what if there was some
excuse, you know? Can you help me, Ms. Noble, do
you know whether or not they have instructions
here that you get one citation, the next one is
unwarrantable?
MS. NOBLE: I believe their instructions are
if there is a previous violation and the same
manager is in charge and if it's a fairly obvious
violation that they issue an unwarrantable.
THE COURT: Is that right? That's in this
district right? Do you know if that's nationwide
policy?
MS. NOBLE: the s~pervisory, my inspector just
whispered in my ear that that's nationwide policy.

* • * *
MS. NOBLE: I don't know if it's in the poli.c y
manual or not.
THE COURT: Is this Mr. Tanner?
MS . NOBLE: This is Mr . Tanner .
THE COURT: Let me ask you, Mr. Tanner, is
this somewhere a written policy? I don't want to
hear about making word of mouth against - MR. TANNER: No, it's not.

372

THE COURT: Is there a written policy
somewhere?
MR. TANNER: We have a writteri policy that we
have to look at the previous violations, the
obvious, whether it's obvious, it reasonably could
have been detected by a supervisor or a company
per~on doing the checks, whether is should have
already been taken care ~f and alr of that. We do
have one. As a matter of fact I showed it to him
Monday. · We've got - -

* * * *
THE COURT: You're saying that there's some
policy that if there's a prior citation issued at
a mine and the next inspector that goes - - the
next inspection at that same mine when it's under
the same management then the next violation is
issued for the same standard is unwarrantable
failure.
MR. TANNER: If he had reason to know, yes.
If he should have seen it and taken care of it,
yes, sir.
In support of the unwarrantable failure finding, the
petitioner relies on the one prior non-"S&S" scalper citation
issued two years earlier to support its conclusion that the
respondent exhibited a "high degree" 6f negligence, and
"deliberately took no action to place a berm at this location
even though a prior citation involving substantially {sic)
circumstances, had been affirmed and a penalty issued" (posthearing brief, pg. 13).
After careful review of all of the circumstances
surrounding this violation, I find no credible evidence to
establish any aggravated conduct by the respondent in support of
the inspe~tor's unwarrantable failure finding.
Initially, I find that ~he single non-"S&S" violation
issued two years earlier is too remote in time to support any
conclusion that the respondent was "highly negligent" in this
case. The past violation, as well as the instant one, are non"S&S," and the inspector's assertion that he also relied on the
lack of good faith compliance with respect to the prior
violation is rejected as incredible.
With respect to the respondent's compliance efforts, the
evidence establishes that the respondent provided berms on
either side of the roadway approaches to the scalper dumping
location, and the photographic exhibits (P-16), reflect that a

373

berm was at one time in place at the edge of the drop-off, but
was apparently not maintained.
I also take note of supervising
Inspector Tanner's belief that an unwarrantable failure finding
may be based on evidence that the operator "had reason to know
and should have seen and taken care of" ah alleged violative
condition (Tr. 202). In my view, "should have seen" and "reason
to know" are elements associated with moderate negligence rather
than a high degree of negligence amounting to aggravated
conduct.
r:

In view of the foregoing findings and conclusions, I
conclude and find the petitioner has not established that the
cited condition resulted from the respondent's unwarrantable
failure to comply with the cited standard section 56.9301.
Accordingly, the inspector's finding in this regard IS VACATED,
and the order IS MODIFIED to a section 104(a) non-"S&S"
citation.
Order No.

390870~

With respect to the cited Fab Tee conveyor tail pulley
guard that was pulled away exposing an opening of six inches
wide and 15 inches high, the inspector testified that he
recently confirmed that this particular guard had never been
. previously cited (Tr. 234, 247). The inspector offered no
testimony in support of his unwarrantable failure finding and
the petitioner has cited no evidence or testimony in support of
such a finding other than counsel's statement· at page 10 of her
brief that "this was an unwarrantable failure because of the
propensity of the operator to have violations involving selfcleaning tail pulleys." Under the circumstances, in the absence
of any credible evidentiary support, other than counsel's
argument (which is not evidence) , I cannot conclude that the
petitioner has made a case of unwarrantable failure in this
instance and the inspector's finding IS VACATED. The section
104 (d) (2) order IS MODIFIED to a section 104 (a) citation.
Assuming that the petitioner's counsel intended her
unwarrantable failure arguments with respect to Order No.
3908680, which I have vacated, to equally apply to Order No.
3908703, which is not clear in her brief, I would still find a
lack of credible evidentiary support for the unwarrantable
failure finding associated with that violation. My reasons in
this regard follow.
The inspector based his unwarrantable failure finding
associated with Order No. 3908680, on two prior guarding
citations issued in November 1993, and April 1994, and the fact
that pit manager Hughes "was in charge" on those occasions (Tr.
207; Exhibits P-20 and P-21). These exhibits are simply copies
of photographs of the cited guards, and rather brief comments
made by the inspector as part of his field notes. Copies of the
374

citations were not produced, and inspector Okuniewicz testified
that he had no knowledge as to the name of the inspector who may
have issued them (Tr. 208). He also confirmed that the field
notes that he obtained from his office files do not contain any
reference to the guarding standard that was cited, and although
petitioner's counsel stated that these citations were cited in
previous cases and was prepared to discuss them, and was invited
to do so as part of her brief, (Tr. 218), no further arguments
were forthcoming.
The petitioner's counsel acknowledged pit manager Hughes'
testimony that he has disciplined employees for not taking care
of the guards properly and agreed that it was important to keep
the guards on the tail pulleys (post hearing brief, pg. 9). I
also take note of Mr. Hughes' credible and unrebutted testimony
that to avoid guarding weld points from breaking off, different
types of belt guarding materials have been tried, and that all '
employees are instructed to replace all guards that they remove
(Tr. 442). Thus, it would appear to me that the respondent has
made an effort to address its guarding prqblems. Indeed, with
respect to Order No. 3908680, the inspector testified that the
respondent made an effort to repair the guards (Tr. 2224).
Citing Emery Mining CQrp., 9 FMSHRC 1997, 2004-2005
(December 1987); and DrummQnd Company Inc., 13 FMSH~C 1362, 1368
(September 1991), the petitioner asserts that the two prior tail
pulley guarding citations, coupled with pit manager Hughes'
admission at (Tr. 442), that ~the guards. were not properly
maintained and not checked dailyn and that ~he does not check
daily to ensure that the guard is properly maintained, (posthearing brief, pg. 9), the inspector properly determined that
the violation (Order No. 3908680), was an unwarrantable failure.
With regard to Mr. Hughes' alleged admissions, I have
reviewed the transcript reference relied on by the petitioner at
(Tr. 442-443), and find that although Mr. Hughes admitted that
he did not personally check the. guard every day (Tr. 442),
petitioner's counsel conveniently omitted the rest of his answer
at (Tr . 443) where he further explained that the guard is
checked by the plant operator Kevin Billings. Further, I find
no admissions by Mr. Hughes at the transcript page cited by
counsel that the guards were not properly maintained or that he
failed to check the guard daily to insure that it was properly
maintained. The cited record simply reflects that Mr. Hughes
did not personally check the guard every day, but that ~the
operator checks it.u
In the absence of any credible evidence that Mr. Hughes was
obliged to personally check each and every guard at the mine
site, his admission that he did not personally check the guard
in question does not, standing alone, support any finding of
aggravated conduct. In my view, an inspector is obliged to

375

develop credible evidentiary support to establish an
unwarrantable failure finding, a rather serious charge. Cursory
inspections, without developing credible - evidence to support
such a finding is simply inadequate to prove a violation.
With regard to the petitioner's reliance on the Emery
Mining Corporation case, I take note of the fact that the
Commission, with all five members in agreement, yacated a
judge's finding of unwarrantable failure, and modified the
section 104(a). citation 9 FMSHRC 2005. In Drummond supra, the
Commission vacated a judge's finding of no unwarrantable failure
and remanded the case for further consideration. I find nothing
in that decision that is particularly relevant to the facts of
the case at hand.
Order No. 3908704
The inspector based his December 12, 1995, non-"S&S"
unwarrantable failure finding on the fact that a prior non-"S&S"
violation was issued three months earlier on August 29, 1995,
for a violation of section 56.11027, for using a cable spool
that was admittedly a more substantial work platform to access
the same control box.
The evidence established that both violations were non"S&S , " and that the cited cable spool was a more substantial
work platform for providing access to the control box. There is
no evidence as to how long the condition may have existed, and
the inspector had no knowledge as to how frequently the control
box had to be accessed.
The credible and unrebutted testimony of pit manager Hughes
reflects that access to the box occurred rather infrequently
once every month to three months, and that the respondent
provided ladders nearby f9r use by employees when there was a
need to reach the control box, and Mr. Hughes confirmed that he
used such a ladder. Although Mr. Hughes acknowledged that
certain employees may have found it more convenient to stand on
the overturned drum to reach the control box handle, he
confirmed that the drum was intended to be used for trash or
garbage, and there is no direct evidence that anyone actually
accessed the box by standing on the drum, or that Mr. Hughes was
aware of, or approved of such a practice.
Taking into account all of the aforementioned circumstances
surrounding this violation, I cannot conclude that the prior
citation of August 1995, albeit close in time to the December
1995, violation, standing alone, supports the inspector's
unwarrantable failure finding. To the contrary, I conclude and
find that the absence of any evidence as to the duration of the
violative condition, the fact that the violation was not
extensive, and was indeed non-"S&S," the rather infrequent need

376

to access the box, and the furnishing of ladders by the
respondent Yocated reasonably close by for use in accessing the
control box, undercuts the petitioner's argument that the past
simila~ violation establishes that tbe violation ~was
unwarranted and hazardous" (Pg. 14, post-hearing brief}.
I conclude and find that the evidence adduced with respect
to this violation does not support a finding of aggravated
conduct amounting to an unwarrantable failure by the respondent
to comply with the cited standard. Accordingly, the inspector's
finding in this regard IS VACATED, and the order IS MODIFIED to
a section 104(a} non-"S&S" citation.
Order No. 3908708
The inspector based his non-"S&S" unwarrantable failure
finding concerning the failure to post explosives warning signs
at the locations of the cap and powder day boxes on the fact
that the previously cited powder magazine located on the Foss
Lewis property was not posted with warning signs. The inspector
also considered the fact that when the magazine was subsequently
moved to the respondent's property and posted with warning
signs, no signs were posted at the location of the two cited day
boxes (Tr. 284-285}
The respondent's post-hearing brief does not address this
violation. However, respondent's counsel conceded that the
cited day boxes required warning signs, and he confirmed that
signs were posted by the respondent at the new magazine location
when it was moved from the Foss Lewis property to the
respondent's property (Tr. 288-289). Further, the unrebutted
and credible testimony of the inspector reflects that Mr.
Billings, who was then respondent's employee, posted the signs
at the day box locations to abate the violation (Tr. 285}.
The respondent's suggestion that Burt Explosives owned the
cited boxes and was responsible for posting the warning signs is
rejected. The respondent presented no credible evidence to
establish that someone other than the respondent owned the
boxes, the inspector had no knowledge that ownership was with
someone other then the respondent, and Burt's representative,
Clark, offered no testimony regarding these particular boxes.
The record reflects that the violation for the. absence of
warning signs at the powder magazine when it was located on the
Foss Lewis property was issued on November 16, 1995, and when
the magazine was moved to the respondent's property, signs were
posted at the new location. Although it may have been
reasonable for the respondent to believe that is was not
responsible for posting the signs on the magazine that was not
located on its property, once it was moved and the signs were
posted, I find no reasonable or rational explanation or excuse

377

for the respondent's subsequent failure to also post signs at
the two day box locations where the boxes had admittedly been in
place for at least two years under the respondent's control, and
cited less than a month later on December 13, 1995 (Tr. 467}.
Under all of these circumstances, I conclude and find that the
respondent had more than fair warning that the cited regulation
required the posting of the required signs, and that it was
obliged to take notice that greater compliance efforts were
required on its part to insure the posting of the signs prior to
the inspection that resulted in the issuance of the violation.
In view of the foregoing, I conclude and find that the
respondent's failure to post the required day box warning signs
was not justified or excusable, and that the respondent's
conduct in this regard was aggravated, constituted a high degree
of negligence and justified the inspector's unwarrantable
failure finding. Accordingly, that finding IS AFFIRMED.
Alleged Disparate MSHA Enforcement Treatment
The record reflects that the subject mine is owned and
operated by Mr. Glenn Hughes and his son Scott. As a result of
an incident involving supervisory inspector Tanner sometime in
November of 1993, Glenn and Scott Hughes consented to a
judgement entered by a U.S. District Court Judge for the Utah
District, on May 11, 1994, enjoining them from interfering with
MSHA inspectors or refusing to permit inspection of the mine.
They were further enjoined from participating in any MSHA
inspections, and were required to make available a knowledgeable
and authorized person to accompany MSHA inspectors during their
inspections (Exhibit P-44;) (Tr. 32-34).
Although the injunction was in effect during the
inspections relevant to these proceedings, Scott Hughes is no
longer subject to the court's judgment but his father is.
(Tr.
256) . The record further reflects that when the inspectors
arrived at the mine site to conduct the inspections that
resulted in the contested violations, Scott and Glenn Hughes
left the premises, the operations were shut down, and the miners
were also absent while the inspections were taking place. The
inspectors were accompanied by a company official or its counsel
(Tr. 253-257) .
In the course of the hearing, the respondent's counsel
suggested that az a result of the incident in November 1993,
involving Mr. Tanner during the course of an inspection closeout
conference at the mine, the respondent has been treated ~nfairly
and singled out for "stepped up" and "special" disproportionate
inspection treatment that has resulted in a marked increase in
the number of violations issued at the mine and thousands of
dollars of increased civil penalty assessments "that has just
been unprecedented and driven the mine to the . brink of not being
able to continue to exist" (Tr. 9-14; 374-376, 380). In

378

response to a bench inquiry as to whether he has pursued his
claim directly with MSHA, respondent's counsel responded as
follows (Tr. 380-381):
MR. SIMONSEN: Okay. We go to the district
manager in Denver, and he tells us that this case
has already been discussed at the highest levels
of MSHA and a decision has been made that Lakeview
needs to be made into an example.
THE COURT: Do you have that in writing
somewhere?
MR. SIMONSEN: I sat there and heard it.
In support of its unfair treatment allegation, the
respondent presented the testimony of June · Long, a scale house
employee who was present during the inspection conference at the
mine in November 1993, and witnessed the confrontation between
Mr. Tanner and Mr. Glenn Hughes.
Mrs. Long agreed that inspections are necessary, that
corrective action was necessary when conditions are cited as
violations. However, she testified that Mr. Tanner was
~negative,n threatened to shut down the mine, was within one foot
of Mr. Hughes and ~got right up in Glenn's face, and I · was so
surprised that words didn't fly beyond thatn (Tr. 390-392). She
confirmed that the inspectors have never interfered with her
scale house operations and agreed that inspections were needed
~but I also think that the bullying techniques don't need to be
theren {Tr. 396).
With regard to the violations that were the subject of the
November 1993, closeout conference incident with Mr. Tanner, the
parties confirmed that they were subsequently settled prior to
any hearings, and the proposed pen·a lty assessments were reduced
from $52,000 to $17,000 (Tr. 377-378).
With respect to the assertion by respondent's counsel that
Mr. Tanner ar'ways accompanied the inspectors on their
inspections, and a suggested inference that Mr. Tanner unduly
influenced the inspectors when they issued the violations,
counsel for the respondent was informed that ~r can't draw an
inference that Tanner went out there because he's got it in for
the operatorn (Tr. 386).
The respondent's allegations of disparate enforcement
treatment are not further discussed in its post-hearing brief.
Apart from any credibility issues that may arise as a result of
the respondent's confrontation with Mr. Tanner, the parties were
informed of my limited jurisdiction that does not include
mediating .such disputes (Tr . 384-385). The parties were further
379

advised that complaints concerning any inspector's conduct are
best pursued with the appropriate agencies within the Department
of Labor, including the Inspector General's Office, and that the
respondent is free to pursue the matter further.
History of Prior Violations
Exhibit P-43 is a computer print-out listing the number of
violations assessed for the period December 13, 1993, to December
12, 1995. The information reflects that 79 violations were
assessed, and that the respondent paid $250, for five of the
violations. The listing shows one violation of mandatory safety
standard 56.9301, one violation of section 56.14112(b), two
violations of section 56.11027, one violation of section
56.6132(a) (4), four violations of section 56.11002, and two
violations of section 56.9300(a). The print-out further reflects
that the respondent paid penalty assessments of $359, for 11 of
the 24 violations listed for the period prior to December 13,
1993.
The information contained in the print-out does not include
any violation numbers, dates, or any indications as to whether
the violations were issued as citations or orders, or include the
violations which are the subject of these proceedings. In
response to a bench question concerning the print-out,
petitioner's counsel agreed that "it's confusing," and
respondent's counsel stated, "This has been a general education
for me now" (Tr. 249). When asked about any outstanding
delinquency letters, petitioner's counsel stated, "they are
taking care of that," and respondent's counsel stated "we're
dealing with MSHA in a responsible way with respect to the
citations we've received "(Tr. 249-250).
The petitioner's post-hearing brief does not discuss the
respondent's history of prior violations in the context of
whether any increases over the amounts initially proposed by the
petitioner for the violations at issue in these proceedings are
warranted. The petitioner simply notes that the penalty history
was submitted without objection and constitutes sufficient
evidence to meet the petitioner's burden of proof (Pg. 1, posthearing brief) .
In the absence of any further evidence, I have no basis for
concluding that the respondent's history of prior violations
warrants any additional increases in the civil penalty
assessments that I have made for the violations which have been
affirmed. Based on the record here, namely, the computer printout submitted by the petitioner, I conclude and find that
additional increased penalty assessments are not warranted.

380

Size of Business and Effect of Civil Penalty Assessments
on the Respondent's Ability to Continue in Business
Altho~gh Inspector Okuniewicz characterized the respondent
as a medium-sized mine operator, the respondent's counsel stated
that the mine has 12 employees, mine production consists of 6,220
annual man hours, and the petitioner's counsel assumed that the
mine is a small operation (Tr. 365-366). In her po~t-hearing
brief, at page 7, footnote 10, counsel states that the respondent
is a small operator. Accordingly, I conclude and find that the
respondent is a ·small mine operator, and in the absence of any
evidence to the contrary, I cannot conclude that the civil
penalty assessments I haye made for the violations which have
been affirmed will adversely affect the respondent's ability to
continue in business.

Negligence
The "moderate negligence" findings associated with section
104(a) Citation Nos. 3908709, 3908710, 3908706, 3908707, and
4333365, are AFFIRMED, and I conclude and find that the
violations resulted from the respondent's failure to exercise
reasonable care.
Based on my unwarrantable failure finding and modifications
of section 104(d) (2), Order Nos. 3988679, 3908703, and 3908704, I
conclude and find that the violations resulted from the
respondent's failure to exercise reasonable care amounting to
moderate negligence.
With regard to section 104(d) (2), Order No. 3908708, I
conclude and find that the violation resulted from a high degree
of negligence by the respondent.
Gravity
Based on my significant and substantial (S&S) findings with
respect to the violations that have been affirmed, I conclude and
find that Order Nos. 3908704, 3908708, 3908679, and Citation Nos.
3908709, 3908710, are non-serious violations.
I further conclude and find that Order No. 3908703, and
Citation Nos. 3908706, 3908707, and 4333365, are serious
violations.
Good Faith Compliance
I conclude and find that the respondent timely corrected all
of the cited conditions and the violations were abated and
terminated in good faith.

381

Ciyil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
my ~ DQYQ consideration of the civil penalty assessment criteria
found in section 110(i) of the Act, I conclude and find that the
following penalty assessments are reasonable and appropriate for
the violations _that have been affirmed in these proceedings:
Docket No. WEST 96-208-M
Order /
Citation No .
3908679
3908703
3908704
3908708

~

12/12/95
12/12/95
12/12/95
12/13/95

30 C.F.R.
Section
56.9301
56.14112(b)
56.11027
56.6132(a) (6)

Assessment
$ 50
$150
$ 50
$400

30 C.F.R.
Section
56.11002
56.9300(a)

Assessment
$119
$119

30 C .F.R.
Section
56.6132(a) (4)
56.6132(a) (4)
56.14107(a)

Assessment
$ 50
$ 50
$111

pocket No. WEST 96-209-M
Citation No .
3908706
3908707

J2a..U.
12/12/95
12/12/95

pocket No. WEST 96-262-M
Citation No.
3908709
3908710
4333365

.Qall

12/13/95
12/13/95
03/19/96

The following alleged violations ARE VACATED and the
proposed civil penalty assessments ARE DENIED and DISMISSED:
1. Section 104(a ) "S&S" Citation No . 3908559,
August 30, 1995, 30 C.F . R. 56.14100(a)
2.
Section 104(a) "S&S" Citation No. 3908687,
August 16, 1995, 30 C.F.R. 56.6132(a) (6).
3. Section 104(d) (2) non-"S&S" Order No. 3908688,
November 16, 1995, 30 C .F .R . 56.610l(a).
4. Section 104(d) (2) "S&S" Order No . 3908680,
December 12, 1995, 30 C.F . R. 56.14112(a).
5. Sectioh 104(a) non-"S&S" Citation No. 3908711,
December 13, 1995, 30 C.F.R. 56.6131(b).

382

QRPER

IT IS ORDERED AS FOLLOWS:
· 1). Section 104 (d) (2) Order Nos. 3988679,
3908703, and 3908704 ARE MODIFIED to section
104(a) citations.
2) . The respondent shall pay civil penalty
assessments in the amounts shown above for the
violations that have been affirmed. Payment is to
be made to MHSA within thirty (30) days of the
date of these decisions and order, and upon
receipt of payment, these matters ARE DISMISSED.

#~~u~
Administrative Law Judge
Distribution:
Ann M. Noble, Associate Regional Solicitor, Office of the
Solicitor, U.S. Dept. of Labor, 1999 Broadway, Suite 1600,.
Denver, CO 80202-5716 (Certified Mail)
Gregory M. Simonsen, Esq., Kirton & McConkie, 60 East South
Temple, Suite 1800, Salt Lake City, UT 84111 (Certified Mail)
\mea

383

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

FEB 2 1 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 96-1-M
A. C. No. 23-00009-05523
Auxvasse Stone & Gravel

AUXVASSE STONE & GRAVEL CO.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 96-101-M
A. C. No. 23-00009-05525 A
Auxvasse Stone & Gravel

ROBERT E. KUDA, Employed by
AUXVASSE STONE & GRAVEL CO.,
Respondent
DECISION

Appearances:

Before:

Margaret A. Miller, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, for
Petitioner;
Terry S. Kraus, President, Auxvasse Stone & Gravel
Company, St. Louis, Missouri, for Respondents.

Judge Maurer

These consolidated cases are before me upon the petitions
for assessment of civil penalty filed by the Secretary of Labor
(Secretary) against the Auxvasse Stone & Gravel Company,
(Auxvasse) and Mr. Robert E. Kuda pursuant to sections 105 and
110 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§§ 815 and 820. The petitions allege that Auxvasse violated the
mandatory standard found at 30 C.F.R. § 56.14100(c) and that
Mr. Kuda, as an agent of the corporate operator, knowingly
authorized, ordered or carried out that violation. The Secretar,y
seeks civ·i l penalties of $500 against Auxvasse and $500 from
Mr. Kuda.
384

Pursuant to notice, these cases were heard at Clayton,
Missouri, on November 14, 1996.
On May 16, 1995, MSHA Inspector Robert Seelke issued
section 104(d) (1) Citation No . 4329604 to· Auxvasse alleging that:
The ~old CatN 769B, haul truck parked in the shop
parking area and designated as ready for use was found
to have problems with the steering. The bearing for
the steering cylinder stem on the left side was
missing. This created a condition of an approx 3/4"
difference in the diameter of the stem eye and the
holding pin. The cylinder stem eye was resting around
the pin but was not securely attached to the pin. The
tie rod on the right front wheel was in a similar .
condition with the exception that there was a portion
of the broken bearing still within the rod, however, it
would not hold the tie rod end securely in place.
These conditions create a hazard of either the left
steering cylinder or the tight tie rod becoming
disengaged from anchor points and causing a serious
steering defect when the truck is used. It is used on
various grades and various speeds to haul rock in
conjunction with other mobile equipment. According to
production records the truck was last operated on 5-1095. Further investigation showed that the truck was
operated on a fairly regular basis during July 94.
After discussion with several employees it was
determined that this condition had existed both dur"ing
July 94 & May 95. It was also determined that the
condition had been reported to management on several
occasions during this time period. After discussion
with the foreman it was determined that he was aware of
this situation and had told the owner of the company.
The foreman also stated that he personally did not feel
that this was a serious mechanical problem. This is an
unwarrantable failure.
The standard cited, 30 C.F.R.
follows:

§

56.14100(c), provides as

(c) When defects make continued operation
hazardous to persons, the defective items including
self-propelled mobile equipment shall be taken out of
service and placed in a designated area posted for that
purpose, or a tag or other effective method of marking
the defective items shall be used to prohibit further
use until the defects are corrected.

385

Findings. Conclusions and Discussion

The mine involved in this case is an open pit limestone
mine, employing 12 persons, located near Auxvasse, Missouri. On
May 16, 1995, Mr. Robert E. Kuda was in charge of the operations
there, as Mr. Kraus, the company president, was out of town.
Inspector Seelke testified that during a regular inspection
of the mine on May 16, 1995, he inspected a Caterpillar 769B, a
large haul truck. He found that the left steering cylinder stem
did not have a swivel bearing in place. It was completely gone,
and the steering stem was laying over the pin on the arm
assembly. The problem was that there was nothing to hold the
steering cylinder stern on the pin on the arm assembly.
Basically, just gravity was holding the steering cylinder in
place. On a typical mine haul road it could bounce off, and at
that point, you could lose some steering capability. Inspector
Seelke considered this to be a hazardous defect to anyone who
might drive this equipment.
On the right side of the truck, the steering cylinder was in
good order. But the tie rod end that goes on the steering arm
was defective. A portion of the bearing was broken apart, so
that the tie rod was resting against the pin, instead of the
bearing in-between. Once again, the inspector considered this to
be a hazardous equipment defect that could affect the steering of
the truck. If you hit a bump, the tie rod could come off.
At the time the inspector observed the truck in this
condition, it was setting on the ready line. It was not in use
at the time he observed it, but it was on the ready line to be
used if another truck went out of service. He determined that
the last day the truck was ~sed was May 10, 1995. He also
determined from Auxvasse employees that the truck was in the
defective condition that he found it in when it was last operated
on May 10, 1995.
The inspector opined that the effect of these steering
defects would create a hazard. If the steering cylinder was to
come off, you could no longer turn the truck. If the tie rod end
carne off, the truck would be very difficult to control, in his
opinion .
Inspector Seelke also opined that it was very likely tha t
either or both of these conditions could occur, given the
conditions he found and the terrain around the mine site. The

386

effect of a loss of control of the truck could reasonably lead to·
a pedestrian in the area being run over, or the truck going
through a berm and over an embankment, thereby seriously injuring
the driver.
The two cited defective conditions were very obvious and the
inspector determined from talking with the employees that the
acting foreman, Robert E. Kuda, was aware that these conditions
had existed for sometime, and that no appreciable effort had been
made to correct them. The miners that the inspector talked to
informed him that the truck was in this condition since at least
July 1994, and that it had been reported to management at that
time on several occasions and nothing was done about it.
The respondents do not dispute that the truck was in the
condition that the inspector found it in and as it is written up
in the citation at bar. However, they argue that as to the right
tie rod end defect, Mr. Kuda, and therefore the company, had no
knowledge of the degree or magnitude of the defect until it was
uncovered by the inspector, the picture taken, and so forth.
Mr. Kuda testified at the hearing and stated that one of the
truck drivers pointed- out the left steering cylinder problem to
him he thought in December 1994, but then the truck was in the
shop for something else and was not used again until May 1995,
and even then on a very limited basis.
Mr. Kuda also disagrees with the degree of danger presented
by the defects in the steering mechanism. He maintains these
problems would not lead to a total loss of control of the
vehicle. He states that you would still be able to drive it
because there is an additional steering cylinder and tie rod to
keep the steering system intact and prevent total loss of
control. Also, Mr. Kuda emphasizes that this is a spare truck.
It is only used once in awhile if some other truck is out of
service.
Mr. Kuda also denies knowledge of the, defect in the right
tie rod end. Nobody ever pointed that out to him, at least not
to his recollection. Further, it is stipulated by the Secretary
that the employees, truck drivers, never wrote the problem up on
the equipment squawk sheet, as they were supposed to do by
company policy. However, he was aware that there was a rag tied
over the defective tie rod end for about a year, but he never
took it off to look under it to see what the problem was.

387

I find that a violation of 30 C.F.R . § 56.14100(c) occurred
as charged. · Actually, it is admitted by both respondents in the
record of proceedings.
The Secretary further maintains that the violation was
"significant and substantial.u A violation is properly
designated as "significant and substantial# 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 standard is significant and substantial under
National Gypsum the Secretary must prove: (1) the
underlying violation of a mandatory safety standard,
(2) a discrete safety hazard - that is, a measure 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.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria).
The third element of the Mathies formula requires that the
Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury. u.s . Steel Mining Co., Inc., 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 ) and Southern Ohio Coal Co . ,
13 FMSHRC 912, 916-17 (June 1991) .
Inspector Seelke testified convincingly that it would be
reasonably likely that if this truck continued to be used in
normal mining operations, there would be a serious deterioration
in the ability of the driver to steer it, and therefore, there
would be at least a partial loss of control of the vehicle. And
this is a large vehi c le. It is approximately a 30 to 35-ton haul
truck with tires about 5 feet high off the ground.

388

I credit the inspector's belief that with the two
acknowledged defects in the steering mechanism it was reasonable
to expect that the left steering cylinder and the right tie rod
would come off in the normal use of the vehicle over the mine's
rough haulage roads. The resultant loss of control could be a
hazardous situation for both the driver of the haul truck and
most especially for any pedestrian workers in the area. Serious
or fatal injuries would be a reasonably likely result of such an
occurrence.
Within this frame of reference, it is clear that this
violation was "significant and substantialu, and I so find.
The Secretary also maintains that the violation was the
result of "unwarrantable failure.u Unwarrantable failure is
defined as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997 (December 1987).
Unwarrantable failure is characterized by such conduct as
"reckless disregard,u "intentional misconduct," "indifferenceu or
a "lack of reasonable care." Id. at 2003-04; Rochester and
Pittsburgh Coal Company, 13 FMSHRC 189, 193-94 (February 1991).
Relevant issues therefore include such factors as the extent of a
violative condition, the length of time that it existed, whether
an operator has been placed on notice that it existed, whether an
operator has been placed on· notice that greater efforts are
necessary for compliance and the operator's efforts in abating
the violative condition. Mullins and Sons Coal Company,
16 FMSHRC 192, 195 (February 1994) . .
The evidence is clear that Mr. Kuda, a management employee,
was aware of the defect concerning the left steering cylinder for
a long time (approximately 5-6 months) before it was cited by
Inspector Seelke. He nevertheless did nothing to correct this
unsafe condition but rather allowed the truck to remain in
service, available for use. This evidence alone is sufficient to
support a finding of "highu negligence and "unwarrantable
failure."
Under all the facts and circumstances present in this case,
I find that the violation herein was the result of "highu
negligence and ."unwarrantable failure" and Citation No. 4329604
will be affirmed herein as it was written. Considering the
penalty criteria found in section 110{i) of the Act, I further
find that the proposed civil penalty of $500 against the
corporate operator is reasonable and appropriate, and will be
assessed herein.

389

Tbe Section llOCcl Case
The Commission has defined the term "knowingly" that appears
in section 110(c) of the Act 1 in Kenny Richardson, 3 FMSHRC 8, 16
(January 1981), aff'd 689 F.2d 623 (6th Cir. 1982) as follows:
"Knowingly", as used in the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent. Its meaning is rather that used in contract
law, where it means knowing or having reason to know.
A person has reason to know when he has such information as would lead a person exercising reasonable care
to acquire knowledge of the fact in question or to
infer its existence. . . . We believe this interpretation is consistent with both the statutory language
and the remedial intent of the Coal Act. If a persori
in a position to protect employee safety and health
fails to act on the basis of information that gives him
knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a
manner contrary to the remedial nature of the statute.
As a · management employee, a foreman, Mr. Kuda is held to a
high standard of care with regard to the safety of the men who
work at his direc~ion. He knew of the violative condition and
yet did not ensure its abatement, but rather allowed the
equipment to remain in service in an unsafe condition. I
conclude, therefore, that his failure to remove the truck from
service represented more than ordinary negligence. Accordingly,
I find he knowingly violated the standard.
The Secretary has proposed that Mr. Kuda pay a civil penalty
of $500, the same amount as that proposed against the corporate
operator. I, however, feel that this was most probably an
isolated lapse · of judgment on the part of Mr . Kuda for which I
find a pe·n alty of $200 will satisfy the public interest in this
matter.

Section llO(c) of the Mine Act provides, in pertinent
part, that: "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
penal ties. • . . "
1

390

QRDER
1. Section 104(d) (1) Citat.ion No. 4329604 IS AFFIRMED.

2. The Auxvasse Stone & Gravel Company IS ORDERED TO PAY a
civil penalty of $500 within 30 days of the date of this
decision.
3 Robert E. Kuda IS ORDERED TO PAY a civil penalty of $200
within 30 days of the date of this decision.
4. Upon receipt of the payments, these cases ARE DISMXSSED.

Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor,
U. S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail}
Mr. Terry S. Kraus, President, Auxvasse Stone & Gravel Company,
1610 Woodson Road, Overland, MO 63114 (Certified Mail)
Mr. Robert E. Kuda, P. 0. Box 163, Perry, MO 63462 (Certified
Mail )
/lt

391

FEDERAL MINE SAFETY AND BEALTB REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW ~UDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 2 1 1997
LENOON SHEPHERD,
Complainant

. DISCRIMINATION PROCEEDING
Docket No. KENT 97-51-0
BARB CO 96-18

v.

Wiley Surface Mine
Mine IO 15-17664

CONSOL OF KENTUCKY, INC.,
Respondent

DECISION

Appearances:

Lendon Shepherd, Hueysville, Kentucky, pro se;
Elizabeth Chamberlin, Esq., Consol, Inc.,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Melick

This case is before me upon the complaint by Lendon Shepherd
under Section 105(c)(3) of the Fed~ral Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et seq., the "Act," alleging that he was
discharged by consol of Kentucky,
Inc. (Consol) in violation of
Section 105(c) (1) of the Act. 1 In a Motion to Dismiss and

1

Section 105(c) (1) of the Act provides as follows:

No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, ·including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to
Section 101 or because such miner, representative o( miners
or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or
has testified or is about to testify in any such proceeding,
or because of the exercise by such miner, representative of
392

Amended Motion to Dismiss Consol notes that the Complainant
was admittedly discharged on October 20, 1995, and did not file a
complaint with the Mine Safety and Health Administration (MSHA)
alleging that he was unlawfully discharged until September 5,
1996. Consol argues therefore that the complaint should be
dismissed as untimely.
In relevant part, Section 105(c)(1) of the Act prohibits the
discharge of a miner for filing a complaint notifying the
operator or the operator's agent of an alleged danger or safety
or health violation. fn l Supra. If a miner believes that he
has been discharged in violation of the Act and wishes to invoke
his remedies under the Act, he must file his initial
discrimination complaint with the Secretary of Labor within 60
days after the alleged violation and in accordance with
Section 105(c) (2) of the Act. 2 The Commission has held that the
purpose of the 60-day time limit is to avoid stale claims, but
that a miner's late filing may be excused on the basis of
"justifiable circumstances." Hollis v . Consolidation Coal
Company, 6 FMSHRC 21(January 1984); Herman v . Imco Services,
4 FMSHRC 2135 (December 1982) . In those decisions the Commission
cited the Act's legislative history relevant to the 60-day time
limit:
While this time-limit is necessary to avoid stale claims
being brought, it should not be construed strictly where the
filing of a complaint· is delayed under justifiable
circumstances . Circumstances which could warrant the
extension of the time-limit would include a case where the
miner within the 60-day period brings the complaint to the
attention of another agency or to his employer, or the miner
fails to meet the time-limit because he is mislead as to or
misunderstands his rights under the Act. (citation omitted).
The Commission noted accordingly that timeliness questions must
be resolved on a case-by-case basis, taking into account the
unique circumstances of each situation.
Footnote 1 Continued
miners or applicant for employment on behalf of himself or
others of any statutory right afforded by this Act.
2

After investigation of the miner's complaint, the
Secretary is required to file a discrimination complaint with ·
this Commission on the miner's behalf if the Secretary determines
that the Act was violated. If the Secretary determines that the
Act was not violated, he shall so inform the miner, and the miner
then may file his own complaint with the Commission under
Section 105(c)(3) of the Act.

393

At hearings, Mr. Shepherd testified that he and his brother,
Gordon, visited the Hazard, Kentucky office of the Mine Safety
and Health Administration (MSHA) in November 1995, around the
tenth of the month . According to Shepherd, he met with MSHA
Special Investigator Maurice Mullins who wrote what he told him
on a "yellow piece of scratch paper". Shepherd further described
what occurred at this alleged meeting in the following colloquy:
Q.

All right .

And what did you tell Mr . Mullins at that

time?
A.
I told him that I had been terminated after being off
with an injury.
Q.

You had been terminated after being off with an injury?

A.

With a work-related injury. And still under a doctor's
Not released to go back to work by that doctor.

care.
Q.

Is there anything else you told him?

A.
Yeah.
seeing -Q.

That the one treating physician that I had been

I'm sorry.

You'll have to speak up.

A.
The one treating physician that I had been seeing had
released me to go back to work. Another treating physician, my
primary treating physician, does physicals for Consol of
Kentucky, as well . And he would not release me to go to work .
He told me that I was not able to return to work at that time .
Q.

All right.

Anything else you told him?

A.
I was put through a regular prehiring physical, preemployment physical, after 14 years of employment .
Q.

This is what you told Mr. Mullins, you're saying?

A.

Yes, sir.

Q.

All right .

A.
And I was told that I came to work on drugs.
for that reason .

And fired

Q.

I'm sorry?

A.

And fired for that reason.

Q.

You said you were put t~rough a prework physical?

394

A.

A pre-employment physical .

Q.

And what happened?

A.

I was terminated.

Q.

As a result of that ph~ sical?

A.
drugs.
Q.

They said, yeah, they told me that I came to work on
Okay.

And in response to that, what did Mr. Mullins

tell you?
A.
That he would investigate it, look into it, and get
back with me.
Q.

He would what?

A.
He would investigate it and get back with me.
back, contact me .
Q.

Get

And is that all that occurred then at the office at

that time?
A.
Yeah. During that time, th~ federal government shut
down, is what I was told. · I inquired with MSHA on several
occasions, and I was told that the federal government had shut
down and he was not working at that time. That's the reason for
my late filing. Because I didn't sign a piece of paper or
anything . You know, he said he was going to investigate this
thing.
Q.

Well, did Mr. Mullins get back to you at all?

A.

No, sir.

According to Shepherd, Mullins never again contacted him so
he filed the instant complaint in the Martin, Kentucky MSHA ·
office on Septe~ber 5, 1996. Shepherd further testified that
after his discharge he conferred with 20 attorneys in 1995 alone .
The record shows that an attorney for the Appalachian Research
and Defense Fund, Christine Heatley, acting on behalf of
Mr. Shepherd, requested on December 4, 1995, information from
Consol pertaining to Complainant's positive drug tests .
(Exhibit R-1). Shepherd also filed applications for unemployment
insurance, worker's compensation, and for benefits under the
Americans With Disabilities Act regarding his
october 20 discharge.

395

At hearing Lendon Shepherd's brother, Gordon Shepherd,
testified that he accompanied Lendon to the Hazard offices in
November 1995 . Gordon Shepherd testified that his brother, in
fact, went into Mr. Mullins' s office and ·Mullins took notes on a
note pad and said that he would investigate the complaint.
At continued hearings Ma urice Mullins, the Special
Investigator for the Hazard, Kentucky MSHA office, testified that
he had served in that capacity since 1982. In 1995 he was the
only investigator handling "Section l05(c)" cases out of the
Hazard MSHA office . According to Mullins, if a person came into
the MSHA office to file a complaint u.n der Section 105 (c), they
were referred to "complaint processors" in the office who would
type up the complaint. The complaint processor would then call
the Barbourville, Kentucky MSHA office and obtain a case
designator number. At that point a copy of the complaint would
be retained in the office and copies would be mailed to the
Complainant and to the Operator. Mullins had checked the office
records and found no complaint filed by Mr. Shepherd in 1995.
Mullins testified that he took a statement from Mr. Shepherd on
September 16, 1996, pursuant to the instant complaint filed on
September 5, 1996, and that he therefore now can identify
Mr. Shepherd. He has no recollection of ever having met Shepherd
prior to September 16, 1996.
I find Mr. Mullins' testimony credible regarding the
standard procedures followed in the Hazard MSHA office in
receiving discrimination complaints, that there was no record of
Mr. Shepherd having filed any complaint with his office in 1995
and that he had no recollection of having ever met Shepherd prior
to his taking his statement on September 16, 1996. Under the
circumstances I do not find Shepherd's claims that he had filed
his complaint in November 1995 , to be credible. He does not
claim that he was ignorant of the filing requirements but only
that he had filed within the 60-day time-frame set forth in the
Act. Under the circumstances the complaint he filed on
September 5, 1996, regarding his discharge on October 20, 1995,
is untimely and cannot be excused for any "justifiable
circumstance". Consol's Motion to Dismiss is accordingly
granted.
ORDER

Discrimination
dismissed.

is hereby

ML~.

Gary Meli k
Administra ive Law Judg /

396

Distribution:
Lendon Shepherd, 1625 Salyer Branch Road, Hueysville, KY 41640
(Certified Mail)
Elizabeth s. Chamberlin, Esq., Consol, Inc., 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)
(Certified Mail)
\jf

397

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

FEB 2 4 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 96-21-M
A. C. No. 44-00040-05559

v.

Eastern Ridge Lime Co.
L p

EASTERN RIDGE LIME COMPANY,
L P,
Respondent

DBC:tS:tON

Appearances :

Pamela S. Silverman, Esq . , Gretchen Lucken, Esq.,

u.s. Department of Labor, Office of the Solicitor,

Arlington, Virginia, for the Petitioner
John F . Cowling, Esq., Armstrong, Teasdale,·
Schlafly & Davis, St. Louis, Missouri, for the
Respondent.
Before:
I.

Judge Weisberger

Statement of the Case

This case is before me based upon a petition for assess~ent
of civil penalty filed by the Secretary of Labor (Petitioner)
alleging violations by Eas.t ern Ridge Lime L.P . (Responden~)
of 30 C.F.R. § 57.3360, 30 C.F.R. § 57.3201 , and 30 C.F.R.
§ 57.14205.
Pursuant to notice, a hearing was held on October 8,
1996 through October 11, 1996, and October 15, 1996 through
October 16, 1996, in Salem, Virginia. On December 26, 1996,
Petitioner filed a post hearing brief containing a proposed
statement of facts, and Respondent filed proposed findings of
fact and conclusions of law. On January 13, 1996, Respondent
filed a response to Petitioner's proposed findings and
conclusions .
II.

Findings of Fact

1 . The Eastern Ridge mine located in Ripplemead, Virginia
is an underground limestone mine owned and operated by Eastern
Ridge, and Mississippi Lime Company .
2. Operations of the Eastern Ridge mine are subject to the
Mine Safety and Health Act .of 1977, as amended, 30 §§ U.S.C. 801
g

a..e.g.

398

3 . Limestone was extracted from the Eastern Ridge mine using
a random roo~ and pilar mining method.
4. On .July 25, 1994, a mine supervisor, Barry Snider, was
fatally injured, and a driller, Jeffrey Morgan, was seriously
injured when a fall occurred in the 204E/11S area of the Eastern
Ridge mine.
5 . The July 25 , 1994, roof fall occurred while Barry
Snider, mine supervisor, and Jeffrey Morgan, driller, were
attempting to scale loose rock with an Ingersoll-Rand, Model
MHJIDV, Single-Boom Jumbo drill. The rock was located in the
right rib of the 204E heading ne~r the top.
6. A mud-filled ~avity was encountered in the roof of the
204E heading in November or December 1993 during the heading ·
advance.
7. In the Eastern Ridge mine, a cavity is an opening in the
stone surface caused by solution activity in the geologic past.
A joint widened by solutioning occurs when ground water seeps
into the limestone and tends to move through the joints, actually
dissolving part of the rock and carrying it off with it. As the
process continues over periods of geologic time, the joint can be
widened out, and in an extreme case form a cave.
8.

A mud seam is an opening or cavity that contains mud .

9.
The cavity in the roof of 204E heading started at the
face of 204E, and came back about five feet towards the haul
road.

10. The cavity in the roof of 204E heading extended most of
the way across the face of 204E .
11. The uppermost boundary of the cavity in the roof of the
204E heading extended so far into the roof that it could not be
seen from the ground or the roof line with a light.
12 . The roof of 204E heading was drummy from the cavity out
toward the haul road for a distance of up to sixteen feet, a
condition which was reported to mine management.
13. Generally, if drummy top cannot be scaled down it is
drilled and shot. This was not done in this ..case.
14. The roof of 204E was popping and cracking in December
1993, a condition which was reported to mine management. When a
mine roof makes popping and cracking noises, it indicates that
the top is not sound :

399

15 . On numerous times bet ween November/ December 1993 and
July 1994 , scalers told mine management that it was not safe for
anybody to go into the 204E heading , and they condemned this
area.
16 . Mining advance was stopped in the 204E heading around
November or December of 1993 after the mud-filled cavity was
encountered in the roof of 204E because the area could not be
safely scaled .
17. Mining in 203, the heading adjacent to 204E/11S, was
stopped prior to the advance of 204E when a mud seam was
encountered in the face area of 203, and mining could not advance
any further. The mud seam appeared in 203 as a mud hole in the
upper left corner where the face and rib intersected.
18 . The 206 heading was advanced after 204E was stopped in
December 1993. Bad top was encountered in the 206 heading prior
to the July 25, 1994, roof fall in 204E/11S.
19 . Scalers attempted to scale the 204E heading in May or
June 1994, and observed that the top of the heading was checkered
with wide mud seams . Scaling could not be completed due to the
unsafe ground conditions, and the area was condemned. Mine
management was advised that the top of 204E was •all chopped up"
and leaking mud (Tr . 400) .
20 . In late June or early July 1994, the 11S heading was
started to the right off of 204E .
21 . The left rib of 11S was situated approximately 10 to
15 feet back toward the haul road from the face of 204E.
22.
slick.

The left rib of 11S, or the right rib of 204E was on a

23. A slick is generally a smooth surface on stone. A slick
indicates some type of discontinuity in the stone, and in some
cases, it indicates that there may have been movement in the
geologic past, in which another piece of stone rubbed across the
plane being observed. When positioned on the rib, a slick
provides no support for the top . The smooth plane of the slick
can only be observed after the second piece of stone is no longer
there .
24. A joint is a fracture or discontinuity in the rock; a
separation between two solid portions of the rock. A joint plane
can be oriented to the vertical or at some angle to the vertical .
When the discontinuity intersects the surface being looked at, it
generally looks like a line.

400

25. On Thursday, July 21, 1994,· .Darran Eugene Reed, a
scaler/blaster observed two roughly parallel seams or joints that
ran approximately 18 to 20 feet apart in the roof of the 11S
heading, one on the right side of the heading, one on the left
side. In the 11S heading itself, the seams were six to nine
inches wide and muddy in color . As the seams traveled through
204E in the direction of the haul road, they •seized up and were
more like white lines" (Tr. 567).
Robert L. Bradford, the mine Superintendent testified that
prior to the development of 11S, the top of 204E to the haul road
was real smooth. He indicated that on July 21, 1994, he did not
recall any changes in 204E, and did not observe anything of
significance.
26. On July 22, 1996, Danny Carter, a salaried supervisor,
observed two mud seams in the face of 11S, each an eighth of an
inch wide and ten inches apart. He said these seams •then . . .
ran up to the top, then back out towards the haul road•
(Tr. 914) .
27. On Sunday, July 24, 1994, a one to two inch mud seam
ran from the left side of the cavity in the roof .of the 204E
straight back toward the haul roaq then turned right into the 11S
heading. According to Tim Belcher, a scaler, the roof of the 11S
beading looked like a checkerboard of mud seams, with two or
three more seams jutting off the two main seams inside the
heading.
28. On Sunday, July 24, 1994, driller Milton Conley
observed a one to two inch wide seam. encircling the roof of the
204E heading. The seam looked like a one to two inch wide chalk
line forming a twenty to thirty foot diameter circle in the
entry, as shown in Government Exhibit 19. He opined that there
was nothing holding the top up.
Jeffrey Morgan, a driller, testified that on July 24, 1994, ·
there were tight joints across the top of 204, • ••. but it ~ould
run into the 11 South area• (Tr. 962). He indicated that one
joint ~robably- ran into the left rib of 11 South (Tr. 962).
29. Several miner witnesses testified about the condition
of the roof of 204E/11S at various times prior to the accident.
Michael Farley; a scaler/blaster, testified that in November or
December 1993, the roof was drummy about two to three feet back
from the mud seam in 204E, but that the rest of the roof was
~retty solid• (Tr . 465).

401

Darran Reed, a scaler/ blaster, stated that six months to a
year prior to the accident at issue, the roof of 204E was drummy
two t o three feet back from the crevice near the face. Reed
indicated that he tested the roof in the area of 11S on July 21,
1994, and *it sounded good." Tr. 590 .
Walter L. Breeden , a scaler/blaster, stated that the last
time 204E was blasted, he sounded the roof with a .scaling bar ,
and it sounded drummy up to ten feet back from the opening of the
cavity at the face .
30 . On Monday, July 25, 1994, five minutes before the
accident occurred, Conley took his light and showed Snider the
seam encircling the roof of the 204E heading, explaining to
Snider that there was no support for the roof of the heading, and
that the whole roof had broken loose .
31 . After talking to Conley on Monday, July 25, 1994,
Snider instructed Morgan to bring the Jumbo drill to the 204E
heading to knock down a loose rock near the roof at the
intersection of the right rib of 204E, and the left rib of 11S.
After extending the drill boom, the cab of the drill in which
Morgan was seated was located approximately 40 feet outby the
rock in question. Snider was standing on the ground
approximately 15 to 20 feet to the left and in front of the cab
of the drill. Morgan then attempted to rattle the rock loose
with the Jumbo drill by allowing the drill bit to .vibrate, and
tap on the surface of the rock . As Morgan was attempting to
rattle the rock loose , nearly the entire roof of the 204E/llS
heading collapsed killing Snider , and seriously injuring Morgan .

'

32. No artificial ground support was used in the 204E/11S
area of the Eastern Ridge mine prior to the July 25 , 1994, roof
fall.
33. The natural ground support in place between 204E and
llS prio~ to the July 25 , 1994, roof fall was not sufficient to
control the ground .
34 . After the accident, miners and MSHA personnel observed
two parallel joints, and a third intersecting joint, running from
the roof of the haul road into the 204E/11S area.
35 . Imposition of the civil penalties will not affect
Respondent's ability to continue in business .
36. Respondent's violation history shows 70 assessed
violations in 72 inspection days in the preceding 24 month
period, or .97 violations per inspection day. This is a moderate
violation history .

402

37. The violations were abated within the time set for
abatement.
38. The Eastern Ridge mine is a moderate sized mine with
192,906 tons min~d i n 1994. Eastern Ridge is a moderate size
operator with 1 , 939,510 tons mined in 1994.
III.

Discussion and further findings
A.

Citation No. 4289772
1.

Violation of 30 C.F.R. § 57.3360 .

On July 25, 1994, a roof fall occurred in the 204E/11S area
of Respondent's Eastern Ridge Lime LP underground mine, fatally
injuring a supervisor, Barry Snider and seriously injuring a ··
driller, Jeffrey Morgan . Subsequent to an investigation , the
Mine Safety and Health Administration (MSHA) issued a citation
pursuant to Section 104(d) of the Act, alleging a violation of
30 C.F . R. § 57.3360. Section 57 . 3360, as pertinent, provides as
follows: •[g]round support shall be used where ground conditions,
or mining experience in similar ground conditions in the mine,
indicate that it is necessary.• Hence, in order to prevail,
Petitioner must establish the existence, prior to the fatal
accident, of ground conditions which indicated that ground
support was necessary. 1 For the reasons that follow, I find that
Petitioner has met this burden.
The record clearly establishes that a mud-filled cavity was
encountered in the roof of the 204E heading in November or
December 1993, during the heading advance . ·The witnesses who
observed this cavity testified regarding its dimensions. Some
witnesses indicated that it commenced in the roof at the face,
and extended back in the direction of the haul road for a
distance of only three feet, whereas others described this
distance as being six feet. The weight of the evidence
establishes that the cavity in the roof started at the face and
extended outby about five feet. Some witnesses indicated that
the cavity extended rib to rib, whereas others indicated that it
did not extend that far. The weight of the evidence establishes
that the cavity extended most of the way across the face of 204E :
1

In the alternative, Petitioner has the burden of
.
establishing that mining experience in similar ground conditions
in the mine indicated that ground support is necessary . Since,
as will be hereinafter discussed (III(A), (1) infra), the record
establishes that the ground conditions did indicate that ground
support was ne~essary, there is no need to decide whether
Petitioner met its alternate burden of establishing that mining
experience in similar ground conditions indicated that ground
support was necessary .

403

The testimony of all witnesses indicated that the crevice
extended six feet up into the roof, and was mud filled.
It is not necessary to make a finding regarding the specific
dimensions of the cavity, as the record clearly establishes its
existence , and that it was considered a hazardous condition.
When the mine roof was sounded with a bar, it produced a drummy
sound from the cavity out toward the haul road for a distance up
to 16 feet. On numerous times between November/December 1993 and
July 1994, the scalers who worked in the area told mine
management that· the 204E heading area was not safe, and the area
was condemned . The roof in 204E evidenced popping and cracking
noises in December 1993, which indicated that the top was not
sound . A mud hole had been observed in the upper left hand
corner of the face in the adjacent 203 heading and mining was
stopped there. In May 1994, scalers observed that the top of . the
204E heading contained mud seams . Although the top sounded good,
it was condemned.
Sometime around June or early July 1994 , the 11S heading was
opened up to the right of the 204E heading. Breeden who drilled
the 11S heading, indicated that Snider had placed marks on the
right rib of 204E , 40 feet from the face to indicate where
drilling should start to open up the 11S heading. However, he
did not testify specifically as to the distance between the outby
edge of the cavity at the face of the 204E heading, and the left .
rib of the 11S heading . Bradford testified that the start of the
11S heading was probably 25 to 30 feet from the hole in the
ceiling of 204E . However, Wright who blasted the 11S entry
testified that the 11S left rib was approximately 10 to 15 feet
from the 204E face. In the same fashion, Darran Reed, a
scaler/blaster who worked in the area, indicated that the 11S
heading was approximately 10 to 12 feet back from the 204E face.
Significantly, Jeffrey Morgan, who testified on behalf of
Respondent, stated that the left rib of 11S M • • • would have
been 10, 15 feet, maybe better than that.• (Tr. 957) . Morgan had
drilled in the 11S and was found to be a particularly credible
witness.
I find that the weight of the evidence establishes that it
was more likely than not that the distance from the cavity at the
face of the 204E heading to the left rib of the 11S heading was
approximately 15 feet.
Joseph Cybulski, Petitioner's roof control expert, proffered
his opinion that the ground conditions in the 204E/11S area prior
to the fatal accident, indicated that ground support was
necessary. In essence , he based his opinion upon the totality of
the following conditions in the area at issue: a cavity that
extended rib to rib and formed an opening to eight feet from the
204E face, the existence of a drummy roof in 204E, the existence
of joints running parallel to the 204E face, the presence of a

404

mud seam in the 203E heading, the existence of joints running
parallel to llS thqt were tight across 204~ and then b e came wide
and mud filled in flS, arid . the proximity ot.· the left rib in llS
to the vertical cavity in 204E. The record est~blishes the
existence of most of these conditions, as discussed above . Thus,
I find Cybulski's opinion to be well founded .
Bradford, and Respondent's expert, Jack Parker, opined, in
essence, that ground support in the area at issue was not
necessary. As a basis for his opinion, Parker cited only the
fact that the 204E face was astopped" when the cavity was reached
and that, a • • • except for a strip four-to-ten feet wide beside
the cavity the rest of 204E and 11S was good roof" (Tr. 1227).
Parker offered elaborate testimony critical of Cybulski's theory
that the roof fall at issue was caused by lack of support for the
roof whose main support prior to the accident, consisted of
cantilever type support . Parker opined that the cause of the
roof fall was the existence of a cavity above the roof in the
area in question, and that miners could not have been aware of
this condition. However, the issue before me is not the cause of
the accident, but rather whether ground conditions indicated the
necessity for ground support . It is significant to note that
aside from criticizing the significance of Cybulski's reliance on
the existence of parallel joints in the roof, ·Parker did not
explicitly contradict Cybulsk~'s testimony regarding the specific
conditions be cited that supported his conclusion that the need
for ground support was indicated . It also is significant that
miners who regularly worked in the area, expressed concerns of
the various conditions encountered . Breeden was concerned about
the drumrny roof in 204E . Marvin Wright, a scaler/blaster, opined
that the pillar between the 204E face . and the left rib of llS was
too small to support the top. Belcher expressed concern about
the seams in the top of llS . Reed was concerned about turning
the llS heading to the left due to the presenqe of mud seams in
the left rib of 11S, and the face of 204E.
For all the above reasons, I find that the record
establishes that, prior to the fatal accident, ground conditions
indicated that ground support was necessary . _2 There is
no
evidence that Respondent provided any ground- support . 3
Accordingly, I find that it has been established that Respondent
did violate Section 57.3360, supra.

2

According to Cybulski, ground support in the form of steel
sets or cribs would have provided ground support.
In this connection, I agree with Respondent that the ground
support contemplated by Section 57.3360, supra, is artificial and
not natural ground support .
3

405

2.

Significant and Substantial

A "significant and substantial" violation is described in
section 104(d} (1} of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d} (1 }. A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature ." Cement Division.
National Gypsum · co., 3 FMSHRC 822, 825 (April 1981) .
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commi ssion explained its interpretation of the term "significant
and substantial" as follows :
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
.hazard--that is, a measure of danger to safetycontributed to by the . violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4} a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In united States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury . " u.s. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1) , it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company. Inc., 6 FMSHRC
1866, 1868 (August 1984); u.s . Steel Mining Company.
lD&., 6 FMSHRC 1573, 1574-75 (July 1984).
The evidences establishes that Respondent did violate a
mandatory standard i.e., Section 57.3360 . Also, it is clear that
the essence of the violation i . e . , failure to provide ground
support, contributed to the hazard of a roof fall. Taking into
account the combination of ground conditions as discussed above,
(III} (A) infra, and considering the fact that a roof fall did
occur in the area causing a fatality and seriously injuring

406

another miner, I conclude that the third and fourth elements set
forth in Mathies have been established. For these reasons I find
that the Petitioner has established that the violation was .
significant and substantial.
3.

Unwarrantable Failure

The totality of ground conditions which indicated a need for
ground support, as discussed above, III(A) (1) infra, were obvious
as they had been observed by Respondent's miners. As noted by
Respondent, in its Proposed Findings of Fact, its Supervisor,
Barry Snider, was ·aware of all of the concerns the miners had
regarding the area at issue prior to July 25, 1994. Indeed the
204E heading had been condemned. However, in spite of this
knowledge, Respondent did not provide ground support.
Accordingly I find that the level of its negligence was more
than ordinary, and constituted aggravated conduct. (See, Smery.
Mining Co4P., 9 FMSHRC 1997 (December 1987)) I thus find that it
has been established that the violation herein was as the result
of Respondent's unwarrantable failure.
4.

Penalty

I find that the gravity of the violation ·was of a very high
level as the violation contributed to a fatal roof fall. · Also,
as set forth above, (III) (A) (3) Infra, the level of Respondent's
negligence constituted aggravated conduct. Respondent does not
argue that any penalty to be imposed shou~d be reduced by virtue
of its affect on Respondent's ability to continue in business.
Based upon ·the above, and taking into account the remaining
factors set forth in Section 110(i) of the Act, I conclude that a
penalty of $50,000 is appropriate for this violation .
B.

Order No. 4289773 !Violation of 30 C.F.R.
1.

Violation of 30 C.F.R.

§

§

57.3201

57.3201

On July 25, 1994, Morgan was instructed by Snider to use an
Ingersoll-Rand Model MHJ1DV drill to remove a rock from the left
rib of 11S. Morgan fully extended the boom of the drill, and
remained inside the cab of the drill rig which was about 40 to 45
feet away from the rock. Snider was on the ground, and about 20
to 25 feet in front of, and to the left of Morgan, and 40 to .45
feet from the rock that was to be removed. Morgan hit the rock
once with the end of the drill bit and it did not move. Morgan
then drew the bit back and moved it over a few inches. Morgan
then saw falling rock, and the glass in front of the cab of the
drill imploded . Morgan was seriously injured, and Snider was
killed.

40 7

Subsequent to an investigat i on, MSHA issued an order
al legi ng a -v iolation of 30 C.F. R. § 57.3201 which provides as
f ollows: •scaling shall be per formed from a location which will
not expose persons to injury from falling material, or other
protection from falling mate rial shall be provided . •
As set forth above, III(A) (1) infra, the evidence clearly
establishes that on July 25, 1994, prior to the accident, the
2.04E/ 11S area did not contain any ground support in spite of
condit i ons which had indicated the necessity for such support.
Accordingly, even though Morgan was inside a cab about 45 feet
away from the rock that he was rat tling, he was nonetheless
exposed to the hazard of a roof fall as a consequence of working
in an area that had inadequate ground support. According to
Morgan, his injury was caused by rocks that were rolling towards
him, rather than rocks that~ on him from the roof. However,
even if Morgan was injured in this fashion, he was nonetheless
exposed to the hazard of being hit or injured by rocks falling
from the roof . Clearly, the cab provided some measure of
protect ion from falling material, but there is no evidence to
predicate a finding that it provided adegyate protection from
falling material. Also, it appears that , as part of the normal
process of using a drill to remove a rock, Snider was present
directing the scaling. He was situated unprotected on the
ground. Hence, I find that Morgan, and Snider to a greater
degree, were exposed to injury from falling material. Since
scaling was performed from a location which exposed them to this
hazard, I find that it has been established that Respondent did
violate Section 57.3201, supra .
2.

Sjgnifjcant and Substantial

Considering the fact that there was no support in the area
in question where scaling was being performed, and taking into
account the existence of a number of ground conditions that
indicated the need for ground support (See, III A, (1) infra),
I find that the violation was significant and substantial .
3.

unwarrantable Failure

As set f orth above , III(A) (3) infra, management was aware
that scaling was being performed in an area that did not have any
ground support . In addition, Milton Conley showed Snider a
circular seam in the ceiling of llS five minutes before he was
killed . For these reasons, I find that the performance of
scaling in the area at issue under the conditions set forth
above, III (A) (1) infra, constituted aggravated conduct . I thus
find that the violation herein was as a result of Respondent's
unwarrantable failure.

408

4.

Penalty

Considering the fact that the Respondent's negligence
reached the level of aggravated conduct, and the fact that the
violation herein cont ributed to a fatality, . I conclude that the
gravity of the violation was relatively high. I find that the
penalty sought by Petitioner of $35,000 is warranted under these
circumstances .
B.

Order No. 4289774 .

After investigation of the fatal accident, MSHA issued an
order alleging a violation of 30 C. F.R. § 57.14205 which provides
as follows: MMachinery, equipment, and tools shall not be used
beyond the design capacity intended by the manufacturer where
such use may create a hazard to persons.•
Based upon the clear language of Section 57 . 14205, supra, it
is manifest that in order to establish noncompliance with this
section, the Secretary must first prove that the equipment in
issue , i.e . , the Ingersoll-Rand Model MHJ1DV Single-Boom Jumbo
drill was used • . . . beyond the design capacity intended by the
manufacturer" (Emphasis added . ) . The evidence is undisputed that
immediately prior to the fatal accident Morgan was using the
Jumbo drill, as instructed by Snider to rattle a loose rock near
the roof at the intersection of the right rib of 204E and the
left rib of 11S. He explained that he was using the drill to
rattle the rock loose by allowing the drill bit to vibrate and
tap on the surface of the rock . Petitioner did not adduce the
testimony of any representative of the manufacturer who was
competent to testify regarding the use of the drill •intended by
the manufacturer•. Instead, Petitioner relies upon the hearsay
testimony of Inspector Carl Liddeke, regarding a telephone
conversation that he had with Carl Nasca whom he contacted at
Ingersoll-Rand . According to Liddeke, Nasca M . • . was the
business unit manager of crawler drills with Ingersoll-Rand•
(Tr. 810). According to Liddeke, Nasca indicated that the drill
was not manufactured for other than drilling holes in a rock . No
weight was accorded this hearsay testimony . Since the declarant,
Nasca, did not testify, there is no evidence in the record
regarding his background, and responsibilities at Ingersoll Rand
which would make him competent to proffer an opinion as to the
use of the drill intended by Ingersoll-Rand. Petitioner also
relies on literature sent by Nasca to inspector Dennis Yeske,
pursuant to Liddeke's request. The literature entitled
•DESCRIPTION AND SPECIFICATIONs• in general lists specifications
and features of t~e drill (Gov't. Exh. 43) . The last page of
this exhibit, contains a drawing of the drill, and lists 13
features and specifications for the drill's length, width,
height, weight operating, chassis, articulations, ground
clearance, gradeability, jack/ stabilizers, tire size, tramming

40 9

speed, and face coverage . At the top of the page it states that
the drill, "is . . . designed to drill horizontal, vertical and
angle holes for underground mining production headings. It·
supports one hydraulic drifter and can drive· headings" (Gov't
Exh. 43, pg 16). I find this one sentence inadequate to satisfy
the Secretary's burden of establishing that the use of the drill
to rattle goes beyond the design capacity of the drill "intended
by the manufacturer".• For all the above reasons, I conclude
that Petitioner has not established that Respondent violated
Section 57.14205, supra.
IV.

Order

It is ORDERED that Order No. 4289773, and Citation No.
4289772 are affirmed as written, and that Order No. 4289774 shall
be dismissed. It is further ORDERED that Respondent shall,
within 30 days of this decision, pay a total civil penalty of
$85,000 for the violations found herein.

Avram Weisberger
Administrative Law Judge
Distribution:
Pamela s. Silverman, Esq., Gretchen McMullen, Esq., Office of the
Solicitor, u.s . Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)
John F. Cowling, Esq., Thomas L. Orris, Esq., Amstrong, Teasdale,
Schlafly & Davis, One Metropolitan Square, Suite 2600, St. Louis,
MO 63102 (Certified Mail)
/mh

4

I note that Respondent's Expert, Jack Parker, testified, in
essence, that, based on his over 35 years mining experience, he
is familiar with the design capacities of the drill. He opined
that using. it to rattle is not beyond its design capacity.

410

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFfiCE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
F.ALLS CHURCH, VIRGINIA 22041

FEB 2 4 1997
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 96-77
A. C. No. 46-02249-03602
No. 7 Surface Mine

HOBET MINING, INC.,
Respondent
DBClS:IQN

Appearances:

James F. Bowman, Conference and Litigation
Representative, U. s . Department of Labor,
Mine Safety and Health Administration, Mount Hope,
West Virginia~ for the Secretary;
David J. Hardy, Esq., Jackson & Kelly,- Charleston,
West Virginia, for Respondent.

Before:

Judge Maurer
STATEMENT OF

T'Bl!: CASE

In this case, the Secretary of Labor seeks the assessment of
a civil penalty against the respondent for an alleged violation
of 30 C.F.R. § 77.404(a). 1 Pursuant to notice, the case was
hea+d in Beckley, West Virginia, and the parties have filed post
hearing briefs which I have considered in the course of my
adjudication of this matter.
The issues presented in this case are:
1. Whether the condition or practice cited by the inspector
constitutes a violation of the cited mandatory safety standard,

1

/ The standard cited, 30 C.F . R. § 77.404(a), provides as
follows: •(a) 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. •

411

2.

whether the alleged violation was "significant and
("S&S") and

substantial~

3. in the case a violation is found, what is the
appropri ate civil penalty to be assessed.
STIPQLATIONS

The parties stipulated to the following (Joint Exhibit
No. 1 ) :
1. The Administrative Law Judge and the Federal Mine
Safety and Health Review Commission have jurisdiction to hear and
decide this civil penalty proceeding pursuant to section 105 of
the Federal Mine Safety and Health Act of 1977.
2 . Hobet Mining Incorporated is the owner and operator of
the No. 07 Surface Mine .
3. Operations of the No. 07 Surface Mine are subject to
the jurisdiction of the Act.
4. Hobet Mining Incorporated may be considered a large
mine operator for purposes of 30 U.S.C. S 820(i).
5. The maximum penalty which could be assessed for this
violation pursuant to 30 U.s.c. S 820(a) will not . affect the
ability of Hobet Mining Incorporated to remain in business.
6. The inspector was acting in his official capacity as an
authorized representative of the Secretary of Labor when he
issued Citation No. 4640244.
7. A true copy of the citation listed in paragraph 6 was
served on Hobet Mining Incorporated or its agent as required by
the Act.
8. The citation listed in paragraph 6 is authentic and may
be admitted into evidence for the purpose of establishing its
issuance and not for the purpose of establishing the accuracy of
any statements asserted therein.
9. MSHA's Proposed Assessment Data Sheet accurately sets
forth (a) the number of assessed penalty violations charged to
the Hobet Mining Incorporated 07 Surface Mine for the period from
January 1993 through July 1996 and (b) the number of inspection
days per month for the period from January 1993 through January
1996.

412

10. MSHA's Assessed Violations History Report, R-17 report,
may be used in- determining appropriate civil penalty assessments
for the alleged violation.
11. The platform and handrail described in the citation
were not mounted on the Caterpillar D-10 equipment.
FINDINGS, CONCLUSIONS, AND DISCUSSION

On November 28, 1995, MSHA Inspector Tyrone L. Stepp issued
section 104(a) Citation No. 4640244 to Hobet Mining, Inc. (Hobet)
alleging that:
The Caterpillar D 10 N (Co. No. 115959) existed
with the platform & handrail missing from the left
side - (mounted near the radiator) .
Hobet acknowledges that the platform and handrail described
in the citation were not, in fact, mounted on the subject
Caterpillar D-10 equipment at the time the inspector saw it.
(Joint Stipulation No. 11). They had apparently been knocked off .
the bulldozer at .some undetermined time during the course of
mining close to the highwall. There is also no dispute that the
platform and handrail needed to be replaced and would have been
replaced at some point, with or without the citation.
The real question in this case is what effect that has on
safely operating the bulldozer in the meantime. The company's
position is that the missing parts did not present a hazard
~ ~' but rather only to those maintenance personnel who needed
to stand on the platform to service the radiator. Therefore,
unless and until radiator maintenance was required, the bulldozer
could remain in service. At the point in time that such access
to the radia~or was needed, the bulldozer would then have to be
taken out of service until the platform was replaced and the
radiator service completed.
I do not believe there is any question that there were
several safe means of getting on and off the bulldozer without
the missing platform and handrails described in the subject
citation. Most obviously, operating personnel could simply get
on or off the equipment from the other side, the right side, for
instance. Once safely aboard the bulldozer, the operator, of
course, would have no use for the missing pieces and could ··
continue to safely run the equipment. Whenever he wanted to shut
down operation and get down from the bulldozer, he could depart
the same way he got aboard, e.g., down the right side.

413

The platform and associated handrail are only required when
it becomes necessary to check the radiator coolant level or
otherwise examine and service the radiator. There - is some
dispute in the record as to when and how often this need arises.
It is variously described as being as long as every 10 to 11 days
or as short a time period as every other day. Whichever time
period is in fact closer to the truth is not important to the ·
primary issue in this case as I view it.
I find as a fact that the missing platform and handrail
assembly from the left side of the D-10 bulldozer is primarily
utilized to provide maintenance personnel with a secure place to
stand while servicing the radiator. Other provisions have been
made on the left and right sides of the .equipment to assist in
safely mounting and dismounting the dozer.
Therefore, I conclude that so long as no radiator maintenance is being attempted on the bulldozer without the required
secure platform and handrail, the bulldozer is not necessarily in
an unsafe operating condition simply because these parts have
been knocked off the dozer and not yet replaced. For its normal
intended use, i.e., "bulldozing", its "operating condition" is
unaffected by their absence. Mere proof of an equipment defect
does not establish a violation of 30 C.F.R. § 77.404(a).
Hobet acknowledges that these parts must be replaced before
a maintenance .worker attempts to access the radiator since no
safe alterative means exists to work on the radiator. At that
point in time, the bulldozer must be taken out of service so that
the missing or damaged assembly can be replaced before the
maintainer attempts to access the radiator.
There is no evidence in this record that any such attempt to
service the radiator on the affected bulldozer was made with the
platform and handrail missing. Conversely, there is evidence in
the record that Hobet would discipline any maintainer caught
utilizing such an alternative, i.e., attempting to access the
radiator without first replacing the platform and associated
handrail.
Accordingly, the Secretary has failed to sustain his burden
of proof that any unsafe condition actually existed at the time
the citation was issued and therefore, he has failed to prove a
violation of 30 C.F.R. § 77.404(a).

414

OJU)EB

Citation No. 4640244 IS VACATED, an·d the Petition for Civi).
Penalty IS DISMISSED.

aurer
trative Law Judge
Distribution:
James F. Bowman, Conference and Litigation Representative,
U. s . Department of Labor, Mine Safety and Health Administration,
100 Bluestone Road, Mt. Hope, WV 25880-1000 (Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, P. 0. Box 553, Charleston,
WV 25322 (Certified Mail)
dcp

415

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

FEB 2 6 1997
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 95-467
A.C. No. 36-07172-05513

I

Gentzel Quarry

BELLEFONTE LIME .CO., INC.,
Respondent
DIC:IS:ION
Appearances:

Allison Anderson Acevedo, Esq., U.S. Department
of Labor, Office of the Solicitor, Philadelphia,
Pennsylvania, for the Petitioner;
John Snyder, Esq., McQuaide, Blasko, Schwartz,
Fleming & Faulkner, Inc., State College,
Pennsylvania, for the Respondent.

Before:

Judge Weisberger

I.

Statement of the Case

At issue in this civil penalty proceeding, is the
validity of a citation issued under Section 104(d} (1) of
the Federal Mine Safety and Health Act of 1977 (•The Act" )
alleging a violation on March 17, 1995, by Bellefonte Lime
Company, Inc . (Respondent) of 30 C.F.R. § 56.3200 at two
locations at its Geptzel quarry.
Pursuant to notice, the case was heard in Harrisburg,
Pennsylvania, on September 25 and 26, 1996, and October 2, 1996 .
Respondent filed Proposed Findings of Fact and Conclusions of Law
on November 26, 1996. The Secretary (Petitioner) filed a Post Hearing Brief on November 27, 1996 . On December 17, 1996,
Petitioner filed a Reply Brief, and Respondent filed a Reply to
Petitioner'& Post-Hearing Brief.
II.

Findings of Fact

1. Bellefonte Lime Company mines Valentine limestone at the
Gentzel Quarry.
2 . A spoil pile located in the northwest portion of the
quarry was created on or after 1982 as overburden. It was
drilled, blasted, excavated, and transported from other areas
of the ·q uarry.

416

3 . The haul trucks that hauled the overburden dumped it on
top of the surface area of the pile which was accessed by use of
haul road networks which were created over and about the spoil
pile as part· of its construction process .
4. The last time spoil was added to the pile prior to the
March 17, 1995, was late 1991 or 1992. It remained undisturbed
between late 1991/1992, and the time it was stripped for the
mining in question.
5 . The spoil pile contained lenses of compacted,
interlocking, and angular limestone boulders, among other
materials.
·
6. Pennsylvania Geological Survey aerial photographs taken
in 1989 and 1994, reveal that the pile was in a stable condition,
and was without any evidence of impending slope failures.
7 . The northwest cut area was stripped of its overburden in
preparation for mining beginning on November 9, 1994.
8 . Valentine limestone was first removed from the northwest
cut area on February 2, 1995.
9 . As of February 21 , 1995, there remained approximately
9,000 tons of Valentine limestone remaining in the northwest cut
area. Under normal working conditions, approximately 3,000 tons
of limestone could be ' extracted from an area per shift . As of
March 17, ·1995, only one shift's worth of limestone remained in
the northwest cut area.
10 . MSHA inspector Edward F. Skvarch arrived at the Gentzel
Quarry at 4 : 00a.m., on March 17, 1995, and inspected the
northwest corner of the quarry .
11. Skvarch inspected the right bank of the spoil pile near
the working area and concluded that it had a steep slope, that
there were rocks near the top and the face of the pile, that
there was no bench in the area, and that the cut in the area was
narrow.
12 . Skvarch estimated that the right bank of the spoil pile
near the working area was 70 -feet high, and its slope was at
least 60 degrees.
13. Skvarch estimated that the second cited area, located
near a turn on a haul road leading to the northwest cut, was

41 7

so feet high, and that its slope was at least 60 degrees. The
slope of the· ~ of this portion of the spoil bank was at a
higher angle with the ground compared to the portion of the pile
located above the toe.
No actual measurements of the slope's
steepness, or the heights or widths of the cited areas were made
by Skvarch.
14. At no point in time prior to his leaving the Gentzel
Quarry on March 17, 1995, did Skvarch observe any materials
falling or rolling off the areas in question.
15. At no point in time did Skvarch note the existence of
any precursors to a major slope failure, such as a bulging of the
pile of cracks along the bank of the pile.
16. Skvarch testified that he asked Theodore Michael
Lesniak, the foreman at the quarry, whether the right bank and
haul road areas were safe, and Lesniak replied "not really"
(Tr. 508). Lesniak testified, in essence, that he was not being
truthful with Skvarcp, as he did not want to argue with him.
Lesniak testified that he did not believe that the cited areas
were unsafe.
17. Richard Moerschbacher operated the front-end loader
during the day shift for at least two weeks in February 1995.
Prior to March 17, 1995, Rickey Confer operated the front end
loader on day shift at the quarry . Prior to March 17, 1995,
Michael Boone was the truck driver on day shift at the quarry.
18 . There was no benching in either of the cited areas on
March 17, 1995, the date of the inspection.
19. In order to prepare the cut area for m~n~ng operations,
the cited spoil pile was stripped, and the limestone was drilled
and blasted.
20. Prior to March 17, 1995, and as late as March 16, 1995,
employees operated equipment in the working area . within
approximately 15 feet of the spoil pile. The working cut where
the loader operator and truck driver worked, was approximately 30
to 40 feet wide, but widened near the working face.
21. Rocks, dirt and sand fell from the right bank of the
spoil pile prior to March 17, 1995.
22. A few weeks prior to March 17, 1995, rocks fell onto
the working area from the left side of the pile at issue.
23. Prior to March 17, 1995, rocks fell near the working
area onto the haul road at a location where the loader operator
would have to back out .

418

24. At the time of the March 17, 1995 citation, there was
no evidence pf any precursors to a circular or rotational slope
failure.
25. Under continued normal mining operations, as of
March 17, 1995, Respondent would have left the northwest cut area
after only one more shift.
26. Haul truck operators, and front end loader operators
were working in or around the cited areas during the time period
in issue. The operators of haul trucks and front end loaders
were seated at a height of 12 to 15 feet off the ground while
operating those vehicles.
27 . An optical compactor measurement of the slopes of the
two cited areas, as depicted in a video tape filmed on March 1,
1995, (Exh. G-6), revealed slopes of approximately 45 degrees in
the two cited areas. The tape did not reveal any precursors or
indicators of slope instability.
28. Brunton compass inclinometer measurements of the haul
road slope in question on September 5, 1996, revealed that the
bottom portion of the slope had an angle of 53 degrees up to a
height of 15 to 20 feet, and the upper portion of the slope had
an angle of 45 degrees up to a height of 55 feet.
29. I find that the time of the issuance of the citation at
issue, the cited areas had a slope of 53 degrees existing to a
vertical height of 15 to 20 feet, and had a slope of 45 degrees
from the point of slope change to the top of the spoil pile.
30. The video tape footage did not reveal any materials
falling from either of the cited areas or any of the other piles
shown on the video tape.
31 . The spoil pile at issue consisted of soil and rock
materials varying in size from coarse sand to boulders the size
of refrigerators.
32. Examination of the spoil pile revealed compaction as
evidenced by the embedding of the finer materials within the
larger course materials. The pile also contained lenses of
blocky, angular boulders.
33. By 1989, as evidenced in the oblique aerial photograph ·
admitted as Exhibit R-3, the Gentzel Quarry had become active,
and spoil materials had been placed in the area of the spoil pile
in question.
34. Stereoscopic review of photographs of the quarry taken
on April 15, 1994, revealed that the area of the spoil pile, the

419

haul road area, and the northwest cut area were stable and
without precursors.
III. Additional Findings and Discussion
A. Violation of 30 C.P.R.

§

56.3200.

MSHA Inspector Edward Skvarch testified that on March 17,
1995, when he inspected the subject site he observed rocks on the
face of the subject pile, and rocks near the top of the pile.
Skvarch also indicated that the slope of the pile was steep, and
that the toe of the pile along the haul road was at a steeper
angle than the remaining portion of the pile. He concluded that
these conditions were hazardous, and issued a citation alleging a
violation of 30 C.P.R. § 56.3200 which provides, as pertinent, as
follows: "Ground conditions that create a hazard to persons shall
be taken down or supported before other work or travel is
permitted in the affected area".
Theodore M. Lesniak, Respondent's shift foreman, who was
present during Skvarch's inspection, testified that he did not
believe that the cited areas were unsafe. However, he did not
specifically contradict the testimony of Skva~ch regarding his
above observations. Similarly, Robert Allan Biggans, who
accompanied Skvarch at the haul road site, did not contradict
this aspect of Skvarch's testimony. Nor did any other of
Respondent's witnesses contradict Skvarch's testimony in these
regards.
Richard D. Moerschbacher, who filled in as a front end
loader operator at the subject site for two weeks in February 19,
· 1995, observed rocks falling from the ~ side of the pile, but
did not see any rocks fall from the right side, which is at
issue, or the haul road. Michael L. Boone, who was employed as a
truck driver on the dates in issue, did not see any rocks -fall
from the pile in the area of the haul road. However, he
testified that he observed rocks as large as a foot in diameter
fall from the right bank of the area in issue prior to March 17.
He also indicated that he saw material falling that was like dirt
or sand. He was asked to indicate when he saw rocks falling.
His response is as follows:
Like I said, we would sit there, and the loader had to
back beside us and turn. The motors are in the back
end of them. It blows exhaust and then the fan out
through the radiators, and would disturb some of the
stuff behind because it was close (sic) (Tr. 230).
Rickey Confer, who operated a front end loader for
Respondent for 15 years, testified that on a daily basis he had
observed a mixture of mud and stone and rocks falling from the

420

areas at issue. He also had observed rocks on the floor near the
base of the pile.
It appears to be Respondent's argument, in essence, that
Confer's testimony should be discounted, since he never brought
up any safety concerns at safety meetings in spite of the fact
that Respondent's employees were requested by Biggans to report
their safety concerns. I observed Confer's demeanor and found
him to be a credible witness. I find that his failure to report
safety concerns to Biggans has some relevance regarding Confer's
reactions to being exposed to the hazard of falling rocks.
However, it is insufficient, to impeach Confer's testimony
regarding his observations.
Respondent also argues that a finding should be made that
rocks have not fallen off the pile inasmuch as the seventeen
minute video tape of various areas of Respondent's operation did
not depict any materials falling from any pile. Respondent also
cites the fact that Skvarch, in the more than four and a half
hours that he was at various locations at the quarry, did not
observe any material falling from any pile. I find these facts
to be insufficient to impeach eyewitness testimony of Boone and
Confer who worked in the areas in question, and observed rocks
falling from the pile. James E. Peters, the quarry
superintendent, indicated that he did not ever observe any
hazardous conditions in th~ cited areas. I find that this
generalized statement is insufficient to rebut the specific
testimony of Boone and Confer regarding their observations.
I also note Biggans• testimony that on occasions he preshifted
the areas in question, and that he never observed material
falling from the cited areas; nor did anyone ever tell him that
they observed falling material. However, is no evidence that the
preshift examinations coincided to the times falling rocks were
observed by eyewitnesses. Further, in contrast to Biggans,
Confer, a front end loader, actually worked in the areas in
question. Thus, I place more weight on Confer's testimony
regarding his observations. Based on all the above, I conclude
that it has been established that it was more likely than not
that rocks and other material had fallen off the cited areas
prior to the inspection at issue.
Respondent did not impeach or contradict the testimony of
Moerschbacher and Boone, in essence, that the work area was
narrow in width in relation to the front end loader, and that the
loader operated at times about ten feet away from the pile. I
therefore accept their testimony and find that the work area was
confined. I am cognizant of the testimony of Respondent's expert
Dr. Lawrence A. Beck, who theorized that a rock falling off the
pile and taking flight like a projectile, would be seven foot
three inches high when it would enter the airspace over the haul
road, and thus would not be able to hit the operator of a vehicle

421

working in the area who sits in a cab, twelve to fifteen feet
from the g~ound. I reject this test imony and find it to be too
speculative, as it is clear that the path of a rock falling off
the slope could be erratic, and its height over the roadway would
depend upon other factors such as whether any other objects were
in its path of travel that could effect its flight through the
air. Hence, the generalized theory of Beck is not accorded much
probative value .
I find that the weight of the evidence establishes that
rocks did fall .off the pile in question at points in time not
significantly remote from the cited date, and that miners working
in the adjacent confined work area and haul road were exposed, in
some degree, to the hazard of being hit by mat erial falling off
the slope. Also, falling material could have contributed to a
vehicular accident causing an injury to a miner. Since miners
were allowed to work and travel in the area on the date cited by
Skvarch, and the spoil pile was not supported or taken down to
prevent rocks from falling down, I find that Respondent did
violate Section 56 . 3200, supra. 1

1

Petitioner also alleges, in essence, that the pile itself,
was unstable. In this regard, Petitioner relies on the testimony
of her expert , George Gardner, that, in essence, the pile was
unstable since its slope was equal or more than the angle of
repose, and that in the haul road area, additional instability
was created as material had been removed from the toe of the
pile. However, Gardner's measurement of the angle of repose was
based not upon measurement obtained by a physical examination of
the pile at issue , but rather upon measurements taken by freezing
frames of a video tape of the subject area taken, at times,
through the windshield of a truck . The person who took the tape
did not testify, and there is no indication in the record of the
angle of the video camera to the horizontal which might affect
the measurement of vertical slope. Further, not much weight is
accorded Gardner ' s opinion that in evaluating the stability of a
pile, the most critical factor is the relationship between its
slope, and the angle of repose . Gardner testified that in
addition to the slope of ·a pile the following factors influence
its stability: the composition of the material in the pile,
whether the material is layered, whether the material is compact ,
the level of water saturation, the presence of shock waves from
nearby blasting, and the removal of the toe. Gardner did not
proffer any detailed explanation as to specifically why slope is
the most critical factor compared to these other factors.
Further, Petitioner has not adduced any evidence, based upon
examination of the type of material in the pile, whether it was

422

B. Significant and Substantial
According to Skvarch, the violation was significant and
substantial.
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 reasonably serious
nature.
{6 FMSHRC, supra, at 3-4.)
In Qnited States Steel Mining Company. Inc., 7 FMSHRC 1125, 1129
(August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an eve~t in which there is an injury''.
U.S. Steel Mining Co., 6 FMSHRC 1834, 1336
(August 1984).
The record establishes a violation of a mandatory standard
i.e., Section 56.3200, supra (III, {A) infra). Also, since rocks
have fallen off the pile at issue (Iri (A} infra), the violation
clearly contributed to the hazard of a rock fall. Hence, the
first two elements of the Mathies formula have been met. At
issue is the third element of the Mathies formula, the likelihood
of an injury producing event, i.e., a rock fall.
Essentially, it is Petitioner's position that, accepting the
testimony of Petitioner's witnesses that rocks have fallen from
the pile, " . . . makes it likely that the rocks would have
continued to fall in and from the pile.• . 2
footnote 1 cont'd.
layered, whether it was compact, the level of saturation, or the
presence of shock waves from blasting. Hence, I conclude that
Petitioner has not adduced sufficient reliable evidence to
establish that the pile at issue was so unstable as to create a
hazardous ground condition.
2

Petitioner's Post-Hearing Brief,

423

p. 45.

Skvarch, in explaining the factors that led him to determine
that the violation was significant and substantial testjfied as
follows:
On the condition itself, the steepness of the
slope stability. Also rocks could roll, fall or bounce
down. It was stated to me prior to going into the cut
that, in fact, rocks had come off the wall and had to
be cleaned up prior to going into the cut sometimes.
(Tr . 6 2 - 6 3 ) .

Skvarch continued his explanation as follows:
In addition to the likelihood of the events and
the severity of the injury, because the cut was narrow
and there was no bench in either area and their close
proximity to the right bank--this is when the loader is
loading out the cut--and the haul truck driver's close
proximity to the cut, it would make it reasonably
likely. that they would get struck, their equipment
would get struck. And if it was a · sizable rock, it
could crash through the window and strike the operator,
could go onto the haul road and cause the operator to
react by veering the vehicle and possibly crashing or
even striking the stone and suffering the type of
injury that would include fractures, abrasions,
bruises, injuries serious enough to lose time.
The operators, again because of their close
proximity of operation to both banks which had been
trimmed, if a slide occurred and it was a massive
slide, it could even result in a fatality (sic)
(Tr . 63 - 6 4 ) .
Hence, according to Skvarch, the S & S character of the
violation at issue is based upon the occurrence of rock falls.
In this connection, Skvarch testified that there were loose rocks
in, and towards the top of the pile. However, he did not testify
with any specificity as to the conditions he observed that led
him to conclude that rocks were loose. Nor did he or any other
witness testify as to the number, size, or location of any loose
material.
Gardner opined that it was "very likely" that rocks would
fall from the pile. He indicated that his conclusion was based
upon the video tape, and the testimony of witnesses who observed
rocks falling off the pile. It opined that a· rock sliding off
the pile would take flight like a projectile from the point on
the pile where the slope steepened at the toe.
Not much weight is accorded Gardner's opinion regarding the
likelihood of rocks falling from the pile, as it is based upon
his observations of a video, rather than upon a physical
examination of the site. Also, although two witnesses testified
424

to observations of rock falls, the likelihood of further rock
falls depends not only on the slope of the pile. It also depends
upon the amount of loose rocks on the pile. The record does not
contain any evidence regarding the numbers, or extent of loose
rocks in the pile. Aside from Skvarch's conclusion that there
was loose material in and on top of the pile, the record does not
set forth with particularity the facts taken into account by
Skvarch that led him to conclude that certain material was loose.
On the other hand, I take cognizance of the uncontradicted
testimony of Peters that there was only approximately one shift-'s
worth of limestone remaining in the northwest cut area to be
mined. There is no evidence that, in normal operations~ miners
would be present in the area after the removal of the remaining
material. Thus, the likelihood of an injury causing event, given
continued mining, would have been mitigated to a great degree.
Accordingly I find that the third element of Mathies, supra, has
not been met, in that it has not been established that an injury
producing event was reasonably likely to have occurred. I
conclude that the violation was not significant and substantial.
C.

unwarrantable Failure

Skvarch opined that the violation herein was as the result of
Respondent's unwarrantable failure. Accordingly, he issued a
citation under Section 104(d) (1) of the Act. The first sentence
of Section 104 (d) (1) supra,_ provides as follows:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that

there has been a violation of any mandatory health or
safety standard, and if he also finds that, while the
conditions created by such violation do not cause·
imminent danger, such violation is of such nature as
could significantly and substantially contribute to the
cause and effe-c t of a coal or other mine safety or
health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards,
he shall include such finding in any citation given to
the operator under this Act (Emphasis added) .
Based on the wording of the first sentence of Section
104(d) (1) supra, the finding of an unwarrantable failure shall be
included by a representative of the Secretary, i.e., an
Inspector, only if the Inspector finds a violation of a safety
standard *and if he also finds• that the violation is significant
and substantial. Accordingly, in the absence of a finding that
the violation was significant and substantial, the inclusion of a
finding of unwarrantable failure in a citation is not proper.
In the instant case, the record fails to establish that the
violation at issue was significant and substantial (III(B)
infra). The Inspector's contrary finding is not supported, and
shall be vacated. Accordingly, a finding of unwarrantable
failure cannot be included in the citation at issue herein.

425

D.

Penalty

I accept the basically uncontradicted testimony of
Petitioner's witnesses that a rock fall resulting from the
violation found herein could have resulted in a fatality. I find
that the violation was of a high level of gravity.
In analyzing the level of Respondent's negligence, I note
that none of Petitioners witnesses who observed falling rocks
brought this hazard to the attention of Respondent. 3
Also I note, as set forth in Respondent's Reply, that none
of Respondent's witnesses observed materials falling from the
cited areas, no reports concerning falling materials were ever
made by the employees, no precursors to a slope failure were
visible prior to the issuance of the citation, and that
Respondent expected that miners would be out of the area in about
one shift's time.
On the other hand, Peters indicated that it was company
policy that miners not work in the cited areas when it rained.
According to Peters, one of the reasons for this policy was the
possiblity that rain could loosen material on . the pile. In
addition, five months prior to the inspection at issue, a Section
107{a) imminent danger order was issued to Respondent citing
Respondent for violating Section 56.3200, supra in another part
of the quarry at issue. Within this framework of evidence , I
find that the level of Respondent's negligence to have been more
than ordinary.
Respondent has not offered any argument that any penalty to
be imposed is to be mitigated by its size, history of violations,
or ability to continue in business.
For all the above reasons, I find that a penalty of $2,500
is appropriate.

3

Moerschbacher was asked whether he told his supervisor
about rocks that fell down, and he said that he did. However his
testimony regarding what he specifically told his supervisor Jim
Peter's is as follows: "I told him that . I thought it would be
smart to try to bench that to try to make it safer" (Tr. 173).
His testimony is thus somewhat ambiguous as to whether he
explicitly told Peters about rocks that had fallen down. I note
that Peters who acknowleged that he sent a bulldozer into the
cited area at the suggestion of an employee, denied that any
employee informed him that the cited areas were unsafe. I
observed Peter's demeanor, and found his testimony credible on
this point.
426

IV.

Order

It is ORDERED that Citation No . 4294703 be amended to a
Section 104(a) citation that is not S & s. It is further ORDERED
that, within 30 days of this decision, Respondent shall pay a
civil penalty of $2,500.

k~

Administrative Law Judge

Distribution:
Allison Anderson Acevedo, Esq., Office of the Solicitor,
U.S. Department of Labor, 3535 Market Street, Room 14480,
Philadelphia, PA 19104 (Certified Mail)
John A. Snyder, Esq., McQuaide, Blasko , Schwartz, Fleming &
Faulkner , Inc., 811 University Drive, State College, PA 168016699 (Certified Mail)
/~

427

428

ADMINISTRATIYE LAW JUDGE ORDERS

PEDBRAL KINB SAFETY AND HEALTH RBVIBW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
February 3 , 1997

SUMMIT, INC. ,

Contestant

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

..
.
.
.
.
...

CONTEST PROCEEDINGS
Docket No. CENT 95-108-RM
Citation 4422929, 1/9/95
Docket No . CENT 95-109-RM
Order No. 4422930, 1/9/95
Docket No. CENT 95-110-RM
Order No. 4422931, 1/9/95

:
:

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

...
.•

CIVIL PENALTY PROCEEDINGS

:
:
:

v.
SUMMIT, INC. ,
Respondent
CHARLES ROUNDS, employed by
SUMMIT, INC. ,
Respondent
TOM LESTER, employed by
SUMMIT, INC. ,
Respondent
DELVIN PRICE, employed by
SUMMIT, INC. ,
Respondent

...
..
•
.
..
.•
.

Docket No. CENT 96-45-M
A.C. 39-01284-05514 X52
Docket No. CENT 97-20-M
A.C . No. 39-01284-05517 A X52
Docket No. CENT 97-21-M
A.C. No. 39-01284-05518 A X52
Docket No. CENT 97-22-M
A. C. No. 39-01284-05519 A X52

..

Open cut - Lead Mine

ORDER DBRYIHG MOTION POR SUMMARY DBCISIOH
These cases are before me on notices of contest and petitions for assessment of civil penalties filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration
4 29

{"MSHA"), against summit, Inc., and three of its employees {the
"Respondents"}, pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (1988)
("Mine Act") . Counsel for Respondents filed a motion for summary
decision pursuant to 29 C.F.R . § 2700.67 . Respondents contend
that (1 ) the citation and two orders (the "citations") f a il to
state violations of mandatory safety standards; (2) the citations
were issued because there was a fall-of-ground rather than on
evidence that hazardous conditions were present; and (3) the MSHA
inspector was prejudiced against Respondents before the investigation began. .Respondents move that the citations be vacated and
that these proceedings be dismissed . The Secretary opposes the
motion on the ground that there are numerous issues of fact that
must be resolved before a decision can be rendered in these
matters.
The Commission has long held that "summary decision is an
extraordinary procedure." Missouri Gravel co., 3 FMSHRC 2470,
2471 {November 1981). Summary decision "may be entered only
where there is no genuine issue as to any material fact and •••
the party in whose favor it is entered is entitled to it as a
matter of law. Id.; see also Energy West Mining co., 16 FMSHRC
1414, 1419 (July 1994); 29 C.F.R. § 2700 . 67(b).
For the reasons set forth below, I deny Respondents' motion.
Each citation and order was issued as a result of a fatal accident that occurred as a result of a fall-of-ground in the minipit at the Open Cut Mine.
I.

Respondents argue that the citations fail to state violations of safety standards. They state that the citations do not
set forth any "condition or act that violates the standards" and
do not describe the alleged violations with particularity.
(Respondents' Memorandum at 7) •
Citation No. 4422929
This citation alleges that the night shift supervisor was
made aware of possible hazardous conditions at the east highwall
in the mini-pit and that no corrective action was taken. The
highwall failed and buried the shovel. The cited standard, 30
C.F.R. S 56.3200, states that ground conditions that create a
hazard to persons shall be taken down or supported before work is
permitted in the affected area.
Respondents argue that the citation fails to state that a
hazardous condition existed prior to the fall-of-ground and does
not set forth with particularity what the hazardous condition
was. They state that "there is no allegation or evidence of a

430

hazardous condition that a more thorough examination by the
supervisor could have found." {Respondents' Memorandum at 8).
Because no specific hazard was cited, Respondents maintain that
the citation does not allege the existence of a violation of the
safety standard.
Respondents misconstrue the Secretary's obligation to
describe the nature of the alleged violation when writing citations and orders. An MSHA inspector is not required to set forth
in the body of the citation all of the evidence that the Secretary may rely uppn to establish a violation. Instead, he is
required to briefly describe the condition or practice that he
believes violated a safety or health standard and set forth the
particular standard that he believes was violated. In this case,
the inspector believed that management knew or should have known
that the east highwall might be hazardous and also believed that
management failed to take any action to identify or correct the
alleged hazard. Respondents contend that it was incumbent on the
inspector to describe the specific areas of the highwall that
should have been taken down or supported. I disagree. Because
there was a fall-of-ground, it was impossible for the inspector
to personally observe the conditions at the highwall prior to the
accident. Nevertheless, the Secretary may be able to present
other evidence to establish a violation .
Respondents also state that the sworn deposition testimony
of the inspector and an employee who raised concerns about the
mini-pit show that the potential proplems discussed with management concerned the height of the highwall and the narrowness of
the benches not a concern that the highwall might fail. Respondents contend that the Secretary does not have any concrete
evidence that anyone saw conditions along the highwall that would
have alerted mine management that the highwall needed to be taken
down or supported. They state that the inspector concluded that
the highwall needed to be taken down or supported because it
subsequently fell . The Secretary disputes these allegations in
her response to the motion. The issues raised by Respondents
concern the sufficiency of the Secretary's evidence and the
weight I should give this evidence. I cannot evaluate this issue
~pon a motion for summary decision.
Genuine factual issues must
be resolved.
Order No. 4422930
The order alleges that m1n1ng methods at the east highwall
did not maintain wall, bank, and slope stability. It states that
the highwall was 80 feet high and the wall failed. The cited
standard, 30 C.F.R. § 56.3i30, states that mining methods shall
be used that will maintain wall , bank, and slope stability in
places where persons work or travel.

431

Respondents state that the order is · invalid because it does
not state the manner in which management failed to use safe and
proper mining methods . They state that the order fails to discuss any specific defect or deficiency in the mining method.
They contend that MSHA concluded that the mining method was
deficient because the highwall failed.
As stated above , the Secretary is not required to set forth
in detail all of the evidence to support the alleged violation in
the body of the citation. The citation must provide notice of
the nature of the alleged violation . In this case, the Secretary
believes that the operator was not using proper mining methods .
The Secretary's response to Respondents' motion sets forth some
of the evidence upon which she will rely to establish a violation. Genuine issues of material fact must be resolved before I
can determine whether Respondents violated the standard .
Order No. 4422931
This order alleges that miners were allowed to work on the
east highwall bench even though management failed to adequately
examine ground conditions "prior to work commencing after weather
conditions, prior blasting, and other conditions warranted." It
further states that such an examination "would have determined
that possible evidence was visible and that the east highwall was
progressively deteriorating."
The cited standard, 30 C.F.R. §
56.3400, states that appropriate supervisors or other designated
persons shall examine and, where applicable, test ground conditions where work is to be performed prior to work commencing,
after blasting, and as ground conditions warrant during the work
shift.
·
Respondents argue that the order restates the language of
the standard without providing the operator with any information
as to the nature of the alleged violation. Respondents then
state that "[w)hile an inadequate examination could constitute a
violation of the regulation, the mere allegation that an examination is inadequate is not sufficient to meet the statutory
requirements." (Respondents' memorandum at 10) . They point to
section 104 of the Mine Act which requires that a citation
"describe with particularity the nature of the violation."
Respondents believe that the order fails to meet the requirements
of section 104.
I find that the order does describe with particularity the
nature of the alleged violation. An MSHA inspector is not
required to describe the evidence the Secretary will rely upon to
prove the violation if the order is contested at a hearing. In
response to the motion, the Secretary states that she intends to
produce evidence at the hearing that the operator's examinations

432

of the highwall were inadequate. For example, she alleges that
Respondents failed to examine the highwall from the top. The
fact that this evidence was not summarized .in the order doe_s not
invalidate the order or breach the language of ~ection 104. I
find that significant questions of fact must be resolved before I
can determine whether Respondents violated the safety standard.
II.

Respondents also argue that the citations were issued
because there was a fall-of-ground rather than on any· evidence
that there were hazardous conditions known or discoverable prior
to the accident. It argues that the occurrence of the accident
is insufficient evidence to support the alleged violations.
As
stated by Respondents, the Secretary has the burden of proof in
these cases. Nevertheless, the Secretary is entitled to present
her evidence at a hearing. In response to the motion, counsel
for the Secretary described evidence that she will rely upon to
prove the alleged violations . In particular, she stated that she
will present expert testimony that falls of the magnitude
involved at the mini-pit give warning signs that should have been
observed by Respondents had proper examinations been conducted.
I reject Respondents' contention that evidence gathered by the
Secretary after the citations were issued cannot be used to
support the validity of the citations because the inspector did
not rely on such evidence when he issued them.
As stated above, the issues raised in Respondents' motion
concern the sufficiency of the Secretary's evidence and the
weight I should give this evidence. I cannot rule on such
evidentiary issues in a motion for s~ary decision.
III.
Respondents allege that the inspector who issued the citations was prejudiced against Summit because he stated at his
deposition that he will issue a citation or order whenever a
highwall fails. Thus, Respondents contend that he was not an
impartial investigator . I reject Respondents' argument . First,
the inspector stated that he normally issues a citation or order
if there has been a fall-of-ground, not that he will always do
so. More importantly, the purpose of this proceeding is not to
review the fairness or impartiality of MSHA's accident investigation. At the hearing, the Secretary must prove that Respondents violated the cited standards . I must determine de novo
whether the Secretary established the violations based on the
evidence presented at the hearing, not on the Secretary's
investigation. If the Secretary fails to establish the violations at the hearing, they will be vacated. Because this is a
de novo proceeding, whether the Secretary's investigation of the
accident was fair and impartial is not relevant.

433

ORDER
For . the reasons set forth above, the motion for summar
decision filed by Summit, Inc., and the other responde
DENIED .

Richard W. Manning
Administrative Law Judge

Distribution:

John D. Austin, Esq., AUSTIN & MOVAHEDI, 1001 Pennsylvania
Avenue, Suite 301, Washington, DC 20004
Kristi Floyd, Esq . , Office of the Solicitor, U.S. Department of
Labor, 1999 aro&dway, suite 1600, Denver, co 80202-5716
R~

434

7EDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
.~203 LEESBURG PIKE .
FAUS CHt.IRCH, VIRGINIA 2204 i

FEB 5 1997
-<;,

••

SECRETARY OF .LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA}, .
ON BEHALF OF KENNETH H.
HANNAH, PHILIP J. PAYNE
AND FLOYD MEZO ,_
complainant

:

0

Oo

,

0

v.

.: ' DISCRIMINATION PROCEEDING
..:• Docket No • .LAKE 94-704-D
:

MSHA ·Case No. _VINC CD 94-07

:

Rend Lake Miite
I.D. No. 11-00601

. .~ :

..:•

CONSOLIDATION COAL COMPANY,
Respondent

PAJTXAL DECISION

This case is before me upon remand by the Commission on
December 10, 1997, for the specific and limited purpose of
"computation of a backpay award and assessment of a civil
penalty". The parties have agreed to the amount of backpay and
the amount of interest owed on the backpay through
February 20, 1997. As significant issues remain to be briefed
and argued concerning the assessment of a civil penalty which
will not likely be resolved before February 20, 1997, a partial
decision and order is being issued.
ORDER

WHEREFORE Consolidation Coal Company is directed to pay to
Complainants on or before February 20, 1997, the following
amounts:

Kenneth Hannah
Philip Mezo
Floyd Mezo

Backpay
$2,121.42
$2,495.78
$2,183.51

Interest
$497.61
$583.18
$508.02

Gary Meli ·
Administra1 ive

435

Total

$2,619.03
$3,078.96
$ ,691.53

Distribution:
Ruben R. Chapa, Esq., Office of ~~e Solicitor, u.s. Dept. of
Labor, 230 s. Dearborn Street, 8th Floor, ·Chicago, lL 60604
(Certified Mail)
Colleen A. Gerag~ty, Esq., Office of the Solicitor, u.s. Dept. of
Labor, 4015 Wilson Blvd.·, .suite 400, A~lington, VA 22203
Elizabeth Chamberlin, Esq., Conso~idation Coal Company, 1800
Washington Road, Pittsb~~gh, PA 1524~
David J. Hardy, Esq.~ 3ackson • ~elly., 1600 Laidley Tower, P.o.
Box 553, Charles~Qn, WV 25322 (Certifi•d Mail) ·
Jjf

436

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE lAW JUDGES
2 SKYLINE, 1Oth FLOOR
.
6203 LEESBURG PIKE
FAUS CHURCH, VIRGINIA 22041

Februar y 18, 1997
LAUREL RUN MINING COMPANY 1
Contestants

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

CONTEST PROCEEDINGS
:

Docket No . WEVA 94-347-R
Citation No . 3964761; 8/1/94

:

Docket No. WEVA 94-348-R
Order No . 3964762 ; 8/1/94

:

Docket No. WEVA 94-349-R
Order No . 3964763; 8/1/94

.
I

Docket No . WEVA 94-350-R
Order No . 3964764; 8/1/94

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

v.
LAUREL RUN MINING COMPANY,
Reapondent

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

:

Holden 20-DB Mine
Mine ID No . 46-07770

:

CIVIL PENALTY PROCEEDING
Docket No . WEVA 96-177
A. C. No. 46-07770-03575

.. Holden 20 - DB Mine

. . CIVIL PENALTY PROCEEDING
:

Docket No. WEVA 96-176
A. C. No. 46-07770-0357SA
Holden 20-DB Mine

ERNIE WOODS, Employed by
Laurel Run Mining Co . ,
Respondent

437

ORQIR PENXIHG RESPONDENTS' MOTION TO PISMISS

The above captioned civil penalty proceedings were
reassigned t o me from Judge Maurer . These cases, which
concern a fatal roof fall that occurred on July 25, 1994, were
initiated by petitions for assessment of civil penalties filed
on September 24, 1996, pursuant to sections 110(a) and 110(c)
of the Federal Mine Safety and Health Act of 1977 (the Act) .
The petitions were filed against Laurel Run Mining Company (LRM)
and its •agent•, Ernie Woods.
On December 26, 1996, the respondents filed a Motion to
Dismiss based on their assertion that the Secretary has failed to
act within a •reasonable time• as required by section 105(a) of
the Act. The untimeliness claim is based on the fact that MSHA
did not notify the respondents of the proposed civil penalties
until July 1996, although MSHA's accident investigation was
completed in October 1994. The Secretary filed an opposition to
the respondents' motion on January 10, 1997.
Section 105(a} of the Act, provides, in pertinent part:
If, after an inspection or investigation, The Secretary
issues a ci.tation or order under section ·104 , he shall,
within a reasonable tlme after termination of such
inspection or investigation, notify the qperator by
certified mail of the ciyil penalty prcposed to be
assessed under§ 110(a) for the violation cited .
(Emphasis added} .
In support of their motion, the respondents rely on
information in correspondence dated May 1, 1992, provided by
Richard G. High, Jr., MSHA's Director of Assessments . In this
correspondence , which concerned an unrelated civil proceeding
that did not involve a 110 (c) investigation, Mr. High states,
•for assessment purposes, •reasonable time' is defined as within
18 months of the issuance of the accident report . •
In these proceedings, 21 months elapsed between the
October 1994 release of MSHA'S accident report and the July 1996
issuance of the proposed penalty assessments against LRM and
Woods . Consequently, the respondents argue the Secretary did not
act within a reasonable time. In addition, the respondents
assert they have been prejudiced by the Secretary's delay because
memories of the witnesses have faded; several witnesses and Woods
are no longer employed by LRM; the mine has closed; and the
underground evidence concerning the subject roof conditions is no
longer available to the respondents.

438

The Secretary, in his opposition, relies ·on Steel Branch
Mining , 18 FMSHRC 6 (January 1996), wherein the Commission
considered the· applicability of the •reasonable time• standard in
section 105(a) . In examining this issue the Commission
stated:
Section 105(a) does not establish a limitations
period within which the Secretary must issue
penalty proposals. ~ Rhone-Poylenc of Wyoming
~, 15 FMSHRC 2089; 2092-93 (October 1993)
(aff 1 d, 57 F.. 3d 982 lOth Cir. 1995); Salt Lake
County Rd. pept . , 3 FMSHRC 1714 (July 1981) ; and
Medicine Bow Coal Co., 4 FMSHRC 882 (May 1982).
In commenting on the Secretary's statutory
responsibility to act •within a reasonable time,•
the key Senate Committee that drafted the bill
enacted as the Mine Act observed that •there may
be circumstances, although rare, when prompt
proposal of a penalty may not be possible, and
the Committee does not expect that the failure to
propose a penalty with promptness shall vitiate
any proEosed penalty proceedings.• s. Rep. No.
181, 95 h Cong ., 1•t Sess . 34 (1977), reprinted in
Senate Subcommittee on Labor, Committ~e on Human
Resources, 95th Cong . , 2d Sess., Legislative
History pf the Federal Mine Safety and Health Act
pf 1977, at' 622 (1978 )". Accordingly, in cases of
delay in the Secretary's notification of proposed
penalties , we examine the aame factors that we
consider in the closely related context of the
·secretary's. delay in filing his penalty proposal
with the Commission : the reason for the delay
and whether the delay prejudiced the operator .
18 FMSHRC at 14 .
In Steele Sranch, the Commission considered MSHA's
unusually high caseload in 1992 as •constituting adequate
reason for the delay• in the notification of the proposed
assessment. ~ In these matters, the Secretary asserts the
July 1996 notification of the proposed penalties was delayed by:
the complexity of the 110(c) investigation conducted from
February 15 through July 27, 1995, which followed the October
1994 completion of the accident investigation; the budget
impasse that resulted in the Federal Government shutdown in
December 1995 and January 1996; and the March 1996 amendments to
the Equal Access to Justice Act CEAJA) that required additional
policy review of all llO(c) cases.

439

At the outset, 1 note that the respondents' assertion that
the Secretary did not act *within a reasonable time• is analogous
to the equitable common law doctrine of laches. Ordinarily, a
successful claim of laches requires an •unconscionable, undue,
unexplained or unreasonable delay" manifest by a •want of
activity or diligence in making a claim or moving for the
enforcement of a right.• Black's Law Dictionary, 1016-17 (4th
ed. 1968); ~ alaQ Black's Law Dictionary, 875 (6th ed. 1990).
the instant case, during the intervening period between the
August 1994 citations, and the July 1996 notices of civil
penalties, MSHA .engaged in two investigations - an accident and
a 110(c) investigation. The 110(c) investigation involved
interviewing 22 witnesses and resulted in charges against Woods
and MSHA's decision not to charge other LRM •agents.• While it
may have been possible for MSHA to complete its investigations
more expeditiously, MSHA's efforts in these proceedings can
hardly be characterized as inexcusable neglect.

ln

Moreover, stays of civil penalty cases brought against
operators during the pendency of related 110(c) investigations,
absent extraordinary circumstances not shown here, are commonly
granted. Consolidation of the operator and •agent• cases is in
the interests of judicial economy and efficiency. Thus, it is
not unusual for civil penalty proceedings involving personal
liability under ·section 11~(c) to be delayed.
While it may have been ·preferable for MSHA to notify LRM of
the proposed civil penalties immediately following the
completion of the October 1994 accident investigation, the civil
penalty proceeding against LRM would have been stayed pending
assessment in the related 110(c) case. LRM's notification of
the proposed civil penalty of $108,000 in July 1996, rather than
shortly after the October 1994 accident investigation, did not
materially prejudice LRM's ability to participate in this
litigation.
With respect to the applicable •reasonable time• standard,
am unconvinced that the 18 month period advanced by the
respondents is determinative. There is a positive correlation
between the complexity of a case and the time required to issue
notification of a civil penalty. Although MSHA has previously
·e xercised its proaecutorial discretion not to pursue a case that
was not assessed a civil penalty within 18 months of an
inspection or an investigation, it is not precluded from
bringing these actions. King Koob Coal Company. Inc., 3 FMSHRC
1417, 1421-22 (June 1981).
1

440

In any event, the 18 month ~tandard is not applicable in
these matter$. Rather, the operable time period in these cases
is the 12 month period between completion of MSHA's 110(c)
investigation in July 1995 and notification ··of the proposed
penalties in July 1996. This 12 month period, notwithstanding
purported delays caused by the intervening Government shutdown
and the promulgation of the EAJA amendments, cqnstitutes action
•within a reasonable time• as contemplated by section lOS(a).
Moreover, even if the July 1996 notifications of civil
penalties were untimely, the respondents have failed to
demonstrate they ·have been prejudiced by the delay. Whether the
passage of time effects the weight that should be afforded to
particular testimony is a matter for the trier of fact. The
Secretary has the burden of proof in these matters. Thus, any
alleged fading of memories would most probably inure to the
benefit of the respondents. In any event, memories can be aided
by statements given during the course of MSHA'e. investigations,
and by pertinent depositions in related proceedings that have
already been secured .
Finally, the respondents have not shown that the mine
closure, or, the fact that Woods and other potential witnesses
are no longer employed by LRM, have interfered. with their
ability to present their cases. · Mine conditions constantly
change. Thus, the respondents have failed to demonstrate their
presentation of evidence concerning mine conditions at .the time
of the accident will be affected by the mine closure. The
testimony of former employees can be obtained through the
subpoena process.
Accordingly, the respondents have failed to establish that
the Secretary has failed to act within a reasonable time under
these circumstances. In addition, the respond~nts have failed
to show any meaningful prejudice as a result of· the Secretary's
alleged delay. Consequently, the respondents' December 26,
1996, Motion to Dismiss IS D~ED. 1

rZw~-:-~J:rold
Feldman
Administrative Law Judge

1

Although the respondents' dismissal motion has been denied
and the hearing will proceed, during the course of a February 14,
1997, conference call I indicated to the parties that the
respondents were not foreclosed from arguing that these
proceedings should be dismissed as untimely in their post-hearing
briefs.
··
441

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.\V., 6TH FLOOR
WASHINGTON, D. C. 20006-3868.
February 24, 1997

CIVIL PENALTY PROCEEDING

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

Docket No. YORK 96-73-M
A. C. No. 18-00581-05511

v.

Chase Sand Plant

RED LAND GENSTAR
INCORPORATED,
Respondent

QRPER
Before:

Judge Merlin

This case is a petition for the assessment of two civil penalties filed by the Secretary oi
Labor, petitioner, against Redland Genstar Incorporated, respondent, pursuant to Section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
The matter arises from a fatal accident. Two employees of the respondent drowned after
the boat they used to travel between a dredge and the shore capsized and sank. As a result of the
accident the Secretary issued two citation~ for alleged violations of the Act.
Citation No. 4440814, dated May 6, 1996, charges a violation of30 C.F.R. § 56.11001,
for the following condition or practice:
A fatal accident occurr.ed at this operation on April 17,
1996, when two of three employees riding in a work boat used to
travel to and from the dredge drowned when the boat sank in the
dredge pond. The heavy construction of the boat and subsequent
modifications made to it by the company created an unsafe means
of access in that the boat was overloaded with the three men
aboard.
The boat measured 19Yt feet by 5 feet and weighed approximately 3800 lbs. empty. It was constructed of 1/4 inch steel plates.
The mine operator had added several additional steel plates to the
bottom and sides of the boat to reinforce areas where the original steel
had either worn or rusted through. The added weight of the steel
plates made the boat list toward the bow and starboard side. The
freeboard was not adequate.

442

Section 56.11001 provides as follows:
Safe means of access shall be provided and maintained to
all working places.
Citation No. 4440812, dated May 6, 1996, charges a violation of30 C.F.R. § 56.15020
for the following condition or practice:
A fatal accident occurred at this operation on April 17,
1996, when two of three employees riding in a work boat used to
travel to and from the dredge drowned when the boat sank in the
dredge pond. None of the employees were wearing life jackets:
Section 56.15020 provides as follows:
Life jackets or belts shall be worn where there is danger from
falling into water.
Both citations recite that the violations were significant and substantial, a fatality had
occurred, and negligence was high. On June 7, 1996, the negligence rating for both violations
was modified to moderate based upon evidence submitted by respondent. Thereafter, on
September 12, 1996, the Secretary issued a Notice of Proposed Assessment advising that the
regular formula for determining penalties had been waived and that the special assessment
procedure was used to determine the proposed amounts. A penalty of $50,000 was proposed for
Citation No. 4440814 and'a penalty of$25,000 for Citation No. 4440812. A statement of
narrative findings accompanied the proposed assessments. ·
Section 110 (i) of the Act, 30 U.S.C. § 820 (i), directs that six factors be taken into
account by the Secretary in proposing and by the Commission in assessing penalties. The six
factors are gravity, negligence, history of prior violati9ns, operator's size, good faith abatement,
and effect of the penalty upon the operator's ability to continue in business.
The Secretary's regulations regarding the criteria and procedures to be followed in
proposing civil penalty assessments are set forth in 30 C.F.R. § 100.1 et seq. Section 100.3
provides that the amount of a civil penalty shall be computed in accordance with the formula set
forth therein. The formula is based upon the six factors in section 11 O(i). Numerical values or
points are assigned to the fattors and the total number of points converts to a penalty amount. In
addition, section 100.5 establishes a special assessment procedure which may be used instead of
the formula and provides as follows:
MSHA may elect to waive the regular assessment formula (§100.3)
or the single assessment provision (§ 100.4) if the Agency determines that
conditions surrounding the violation warrant a special assessment. Although an effective penalty can generally be derived by using the regular

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assessment formula and the single assessment provision, some types of
violations may be of such a nature or seriousness that it is not possible to
determine an appropriate penalty under these provisions. Accordingly, the
following categories will be individually reviewed to determine whether a
special assessment is appropriate:
(a) Violations involving fatalities and serious
injuries. ••••••
Respondent has filed a motion for partial summary decision and for judgment on the
pleadings requesting that this matter be remanded to the Secretary for a recalculation of the
proposed penalties. It is respondent's position that the Secretary has failed to follow the Act and
regulations in proposing the amounts. Because negligence was found to be moderate, respondent
argues that the maximum penalty cannot be imposed and that the suggested penalties are not in
accord with the six criteria. Respondent further argues that the proposed assessment does not
take account of prior history, size, or good faith abatement. The Secretary opposes remand.
Both parties agree that I have jurisdiction to consider the question presented. The
seminal decision of the Commission is Yougbio~ey & Ohio Coal Company, 9 FMSHRC 673
(Apri11987). In that case the operator argued that since the Secretary had not complied with the
Part 100 regulations in proposing penalties, the case should be remanded for reconsideration of
the penalties. The Commission held that since the administrative law judge had held a hearing
on the merits, no purpose would be served by requiring the Secretary to re-propose the penalties.
However, the Commission also stated:
We further conclude, however, that it would not be inappropriate for a
mine operator prior to a hearing to raise and, if appropriate, be given an
opportunity to establish that in proposing a penalty the Secretary failed to comply
with his Part 100 penalty regulations. If the manner of the Secretary's proceeding under Part 100 is a legitimate concern to a mine operator, and the Secretary's
departure froin his regulations can be proven by the operator, then intercession
by the Commission at an early stage of the litigation could seek to secure
Secretarial fidelity to his regulations and possible avoidance of full adversarial
proceedings. However, given that the Secretary need only defend on the ground
that he did not arbitrarily proceed under a particular provision of his penalty
regulations, and given the Commission's independent penalty assessment
authority, the scope of the inquiry into the Secretary's actions at his juncture
necessarily would be limited.
Accordingly, it is permissible at this stage to consider respondent's challenge to the
proposed penalties. In Drummond Coal Company, 16 FMSHRC 661 (May 1992), the
Commission exercised jurisdiction prior to a hearing and upheld a challenge to a proposed
penalty on the grounds that adequate notice had not been given with respect to the policy
under which the proposed penalty was made. However, as Y&Q makes clear, the inquiry is
very circumscribed and limited to a determination of whether the Secretary acted arbitrarily.

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As already set forth, section 11 O(i) identifies six factors to be used in arriving at a
penalty amount. The operator would have me hold as a matter oflaw. that the Secretary
cannot assess the statutory maximum where negligence is rated moderate. However, this
argument is not supported by the Act which does not indicate how much weight the
Secretary should give to any one factor or to all of them in concert. Certainly, the Act does
not provide that the statutory maximum can be assessed only when negligence or any other
factors, separately or together, are rated the highest. ·
The same is true of the regulations. Section I 00.5, supra, authorizes the Secretary to
choose the special assessment procedure in certain specified situations, one of which is
violations involving a fatality or serious injury. The regulation directs that the special
assessment take account of the six criteria. However, like the Act, the regulation mandates
nothing further with respect to the criteria. The Secretary is not precluded from proposing
maximum penalties where negligence or any other factor is moderate.
For purposes of granting a remand based upon respondent' s motion, it is not enough
that a proposed assessment might raise questions. For a remand to be granted, a finding
must be made that the proposal is improper under all possible circumstances. In view of the
latitude given the Secretary by the Act and regulations, such a finding cannot be made. To
do so would be to restrict the Secretary in a manner not contemplated by the Act. When
referring to the criteria respondent takes the position that in order for the statutory maximum
to be assessed, findings on all six criteria·musfbe rated at the highest level. However, the
Act and regulations contain no such limitation.
Respondent's references to the penalties that could have been assessed under the formula
are misplaced and I reject respondent's argument that the formula amount is the yardstick by
which to measure a special assessment. The special assessment procedure was created for those
situations where the formula would not produce a suitable result. This multiple fatality is one
of the situations enumerated in the regulations as appropriate for special assessment. It makes
little sense to compare a special assessment with the amount arrived at under the formula. If the
formula were a valid basis for comparison, most special assessments would fail and.the valid
enforcement purposes they are meant to serve would be frustrated. The formula is irrelevant to
a special assessment. ·
So too, the argument that remand is warranted because the Secretary failed to articulate
why the regular assessment could not be used, is unfounded. The regulations specify the
occurrence of a fatality or injury as one of the bases for use of the special assessment procedure.
Since a double fatality is involved, a special assessment was permissible. Respondent is not
entitled to the explanation it seeks.

445

Respondent's companion complaint that the Secretary has not explained the reasons
for the assessment-proposal also is without merit. The last sentence of section 1.1 O(i)
provides that in proposing penalties under the Act the Secretary may rely upon a summary
review of the information available to him and shall not be required to make findings of fact
concerning the six factors. The Act does not contemplate that a justification for a proposed
assessment be required at this stage of the proceedings. The regulations require only that the
Secretary's findings in a special assessment be in narrative form. The "Narr~tive Findings for
a Special Assessment" in this case satisfies that requirement. Respondent first suggests that
the Secretary provide a full record to justify the proposal and then appears willing to accept a
minimal explanation. Neither is required.
Speculation by respondent that the Secretary was motivated by a desire to impose a
punitive penalty is without- foundation. No decision could be premised upon such theorizing.
Respondent has requested remand for both penalties. Its arguments however, appear
directed to the $50,000 penalty. Nothing is specifically offered with respect to the $25,000
penalty. In any event, under this decision there is no basis to remand either.
In light of the foregoing, it is ORDERED that the operator's motion is DENIED. 1

Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mai~)
Jacqueline A. Hershey, Esq., Myrna Butkovitz, Esq., Office of the Solicitor, U. S. Department
of Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104
Mark N. Savit, Esq., Adele L. Abrams, Esq., Patton Boggs, L. L. P. , 2550 M Street, N.W.,
Washington, D.C. 20037-1350
/gl

A hearing will be scheduled by a separate notice.

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