JUNE 2003

THERE WERE NO COMMISSION DECISIONS OR ORDERS

ADMINISTRATIVE LAW JUDGE DECISIONS

05-13-2003 Secretary of Labor on behalf of Charles Scott
KENT 2003-245-D
Howard v. Panther Mining, LLC, et al.
This decision was listed in the May 2003 volume, but inadvertently omitted.

06-12-2003 Peabody Western Coal Company.
06-17-2003 Washington County Aggregates
06-25-2003 Hazel Olson v. Arch Mineral Company/
Thunder Basin Coal Company
06-27-2003 Vandalia Resources, Inc.

i

Pg.266

WEST 2001-201-R
CENT 2003-15-M

Pg. 293
Pg. 306

WEST 2002-443-D
WEVA 2002-145-R

Pg. 319
Pg. 335

JUNE 2003

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

SecretaryofLabor,MSHA v. U.S. SteelMiningCompany,DocketNo. SE2002-126. (Judge Melick,
April 30, 2003)
Secretary of Labor on behalf ofMark Gray v. North Star Mining, Inc., and Jim Brummett, Docket No.
KENT 2001-23-D. (Judge Bulluck, April 29, 2003)

No cases were filed in which Review was denied during the month of June

ii

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

May 13, 2003
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf of
CHARLES SCOTT HOWARD,
CoTI?-plainant
v.

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2003-245-D
BARB CD 2003-07
Mine ID 15-18198
No. 1 Mine

PANTHER MINING, LLC, CAVE SPUR
MINING, LLC, and BLACK
MOUNTAIN RESOURCES, LLC,
Respondent

DECISION APPROVING SETTLEMENT
ORDER FOR TEMPORARY REINSTATEMENT
Appearances: J. Phillip Giannikas, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Stephen A. Sanders, Esq., Appalachian Citizens Law Center, Inc.,
Prestonsburg, Kentucky, on behalf of the Complainant;
Stephen M . Hodges, Esq., Abingdon, Virginia, on behalf of the Respondents.
Before:

Judge Melick

At hearings on May 7, 2003, the parties negotiated a settlement agreement, and based on that
agreement, a bench decision was issued ordering "economic reinstatement" of the Complainant, Mr.
Charles Scott Howard, recognizing that Mr. Howard had obtained other employment but at a lower
rate of pay. The bench decision provides as follows with only non-substantive corrections:
JUDGE MELICK: Back on the record. Just for the record, counsel have been
negotiating and the parties have come to an agreement with respect to temporary
reinstatement. I will issue a bench order of temporary reinstatement to implement
the parties' agreement.
That order will be, first of all in light of Mr. Howard's current employment
with another company, the Respondents will pay, effective tomorrow, May 8th, to Mr.
Howard the differenc·e between his average weekly pay for his last four weeks of
employment at Cave Spur Mining, LLC, and the amounts he is earning based on his
average weekly pay at his current job, and that the checks in payment will be mailed
to Mr. Howard's regular address. This payment shall continue until the final order is
issued in the discrimination case on the merits.

266

As an adjunct to this agreement the parties have agreed to expedite the trial
on the merits of the discrimination case. The complaint in that case will be filed by
the Secretary within two weeks from today's date; and the Respondents have agreed
to file an answer to that complaint within one week of their receipt of the complaint.
The trial on the merits will commence on Wednesday, June 18th, and, if necessary,
continue into June 19th of this year.
One other thing, the parties have agreed to proceed with depositions with the
objective of completing these depositions seven days before the hearing scheduled in
this matter.
That decision and order is hereby now confirmed pursuant to Commission Rule 69, 29
C.F.R. § 2700.69.

Melick
Administrative Law Judge
Distribution: (By Facsimile and Certified Mail)

J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd., Suite
B-201, Nashville, TN 37215-2862
Stephen A. Sanders, Esq., Appalachian Citizens Law Center, Inc., 207 W. Court Street, Suite 202,
Prestonsburg, KY 41653-7725
Stephen M. Hodges, Esq., 208 Main Street, Abingdon, VA 24210-2904
\mca

267

ADMINISTRATIVE LAW JUDGE DEOSIONS

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

June 12, 2003
PEABODY WESTERN COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 2001-201-R
Citation No. 7633896; 1103/2001

v.

Docket No. WEST 2001-202-R
Order No. 7633897; 1/03/2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

Docket No. WEST 2001-203-R
Order No. 7633898; 1103/2001
Kayenta Mine
Mine ID 02-01195

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

CNIL PENALTY PROCEEDING
Docket No. WEST 2002-98
A.C. No. 02-01195-03614

v.

Kayenta Mine
PEABODY WESTERN COAL COMPANY,
Respondent

DECISION
Appearances:

Isabella M. Del Santo, Esq., Office of the Solicitor, U.S. Department of
Labor, San Francisco, California, for the Secretary of Labor;
Karen L. Johnston, Esq., Jackson Kelly, PPLC, Denver, Colorado,
for Peabody Western Coal Company.

Before:

Judge Manning

These cases are before me on notices of contest filed by Peabody Western Coal
Company ("Peabody") and a petition for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration ("MSHA"), against
Peabody, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §§ 815 and 820 (the "Mine Act"). A hearing was held in Flagstaff, Arizona. The
parties presented testimony and documentary evidence and filed post-hearing briefs.
293

I. SUMMARY OF THE EVIDENCE, FINDINGS OF FACT,
AND CONCLUSIONS OF LAW
Peabody operates the Kayenta Mine, an open pit coal mine in Navajo County, Arizona.
The mine relies on five electrical substations to provide power to the mine. A trunk line from
each substation carries electricity from that substation to draglines and other electrical
machinery. Substations have to be relocated from time to time as the pit expands. In the
winter of 2000, Peabody was setting up a substation in a new location to serve the expanding
pit. (Tr. 85, 202). This C-5 substation contained a transformer to reduce the power coming in
on overhead power lines at 69,000 volts (69 kv) to 23,000 volts (23 kv). A trunk line for the
C-5 substation would carry the 23 kv power to draglines. On December 12, 2000, the
electrical crew was completing the work to get this trunk line into operation. The electrical
crew was made up of Marlin Gorman, Ario Ketchum, and Myron Gorman. The electrical
manager at the mine was Vern Hongeva.
Near the beginning of the shift, Marlin Gorman and his son Myron Gorman went to the
C-5 substation to lock it out. 1 The trunk line was lying on the ground because it was not
connected to the substation. There is a large lever on the side of the substation near a door.
The lever was in the down position, which means that the 23 kv circuit was open. (Tr. 22-23).
If the lever were moved up, the circuit would be closed. The lever was labeled in that manner.
(Ex. C-8). They locked this lever in the down, open, position and put a tag on it. They also
locked the load door on the substation so nobody could attach the trunk line. The crew
performed some work on the isolator, which was at the other end of the trunk line. (Tr. 25;
Ex. S-2). The cables to the draglines would eventually be attached to the circuit at this
isolator when the C-5 substation was put into use.
A little later, the Gormans drove back to the C-5 substation to put power on the trunk
line to see if the isolator was working correctly. The Gormans unlocked the gate to the chain
link fence surrounding the substation and removed the locks on the substation. Gorman, a
first class electrician, put on his hot gloves so he could attach the three phase trunk line to the
three connectors ("cable couplers") behind the load door of the substation. After he put on his
gloves, he looked through the window on the load door. The lever on the outside of the
substation controls three knife blade switches inside the substation. The switches are
immediately inside the load door and the window is there so that electricians can look at these
knife blade switches. Gorman noticed that the knife blades were closed. (Tr. 26). That meant
that the blades were engaged and were able to pass current. An open circuit is a de-energized
circuit while a closed circuit is energized. Knife blade switches are used as a safety precaution
so that there will be a "visual disconnect" that an electrician can observe to assure himself that

1

Myron Gorman testified at the hearing, but Marlin Gorman did not. To avoid
confusion, I refer to Myron Gorman in this decision as "Gorman" and I refer to Marlin Gorman
as "Marlin."
294

the circuit is not energized before he opens the load door to connect the trunk line. (Tr. 28).
The three cable couplers for the trunk line were inside the load door below the knife blade
switches. By looking at the knife blades through the window on the load door, Gorman knew
that the cable couplers inside the door might be energized, even though the lever to the right of
the door indicated that the circuit was open.2
Mr. Gorman tried to fix the problem by pushing the lever on the side of the substation
up and down. (Tr. 29). He hoped that by doing so, the knife blades would disengage and
open the circuit. The lever apparently controls the knife blades through a chain attached to
sprockets, but the mechanism obviously was not working because Gorman could not get the
blades to disengage. One of the Gormans called the electrical manager, Mr. Hongeva, who
arrived at the substation shortly thereafter. After Gorman described what had happened, Mr.
Hongeva attempted to fix the problem. First, he made sure that the circuit breakers for this 23
kv circuit were open. The lights on the control panel for the substation were green, which
indicated that the circuit breakers were open. He also checked a meter that indicated that the
ground monitor protection system was working. (Tr. 166, Ex. C-6). Hongeva asked the men
to again try to get the knife blades to open by operating the lever. The blades did not open.
Hongeva believed that the blades were stuck. Hongeva suggested that they open the load door
and loosen the plexiglass shield inside the door a little so that he could insert a grounding stick
to try to disengaged the knife blades. (Tr. 36). Each knife blade was about a foot long. (Tr.
37).
As Hongeva was considering how to open the blades, Gorman asked him whether the
knife blades on the other side of the substation should be opened first. These knife blades
control the 69 kv coming into the substation from the overhead lines. Opening the 69 kv
blades would ensure that the entire substation was de-energized. Gorman testified that
Hongeva did not respond to this question and, as a consequence, the 69 kv knife blades were
not opened. (Tr. 35). Gorman believed that it was not a good practice to rely on the circuit
breakers to confirm that it was safe to use the grounding stick to open the 23 kv blades. (Tr.
39). A grounding stick, sometimes called a hot stick, is used to bleed off any residual power
in a circuit after it has been de-energized. Gorman testified that as Hongeva was getting the
grounding stick, he again suggested that the 69 kv blades should be opened. (Tr. 43). Gorman
testified that Hongeva replied that it was not necessary. Hongeva testified that he told
Gorman that the knife blade switches were not "hot" because the breaker was open. (Tr. 17374).
Hongeva first used the grounding stick to discharge any residual energy on the three
cable couplers. (Tr. 69, 170). He then inserted the grounding stick through the crack in the
loosened plexiglass shield. He was able to open one of the knife blade switches. Hongeva

2

The lever also controls a locking device on the load door. When the lever is in the
closed position, the load door cannot be opened. This locking mechanism was working correctly.
(Tr. 32).

295

testified that there was no indication that the blade was energized. (Tr. 171). Gorman
testified that when Hongeva opened this switch, he saw a small, tennis ball-sized ball of fire.
(Tr. 44). He further testified that Marlin said, ''Hey, that has power on it" and that Hongeva
replied, ''No, we just grounded it out." Id Hongeva testified that Marlin told him that he saw
a spark and that he replied that it was just a "capacitive discharge." (Tr. 171 ).
At this point, they closed the load door again and tried moving the lever on the outside
of the substation up and down to try to open the other two blades. The blades moved but they
did not pop out into the open position. (Tr. 44-45). They reopened the load door and
Hongeva tried to use the grounding stick to open the other two blades. Gorman was standing
on the ground behind Marlin and Hongeva, so he could not see exactly what was happening.
(Tr. 45-46). Marlin and Hongeva were on the pad for the substation. Gorman testified that he
heard a loud noise and the sound of arcing current. (Tr. 46). Gorman started backing up and
told Marlin to get off the pad. They both went out the gate and Hongeva followed shortly
thereafter. Gorman testified that he saw a large ball of fire come out of the area where the
blades were. (Tr. 47-48). Everyone exited the area in case the substation exploded or caught
on fire. Gorman testified that he could hear electrical parts flying through the air. (Tr. 49-50).
Nobody was injured as a result of these events.
Hongeva testified that there was an arc, which he described as a phase-to-ground arc.
(Tr. 172, 179). He dropped the grounding stick and stepped away from the substation. (Tr.
184). He never saw the arc, but he heard it. (Tr. 185). Hongeva testified that he "couldn't
believe what had happened." Id He thought that maybe there was a problem with the
breakers. He stated that he never feared for his safety because he was protected by the
plexiglass shield.
When the men returned to the substation, they used fire extinguishers to put out
residual fires. After he believed it was safe, Gorman walked around to a different side of the
substation so that he could enter the substation through a doorway to put out any fires inside.
Gorman opened and locked out the 69 kv knife blades before he entered the substation. Once
inside, Gorman saw that the three 23 kv wires traveled from the transformer directly to the
knife blade switches without first going through the circuit breakers. (Tr. 51,182; Ex. S-4).
He immediately called out to Hongeva in order to show him. The circuit breakers had been
installed between the knife blades and the cable couplers rather than between the transformer
and the knife blade switches. As a consequence, the knife blades had actually been energized
that morning despite the fact that the circuit breakers were open. If the knife blade switches
on the 69 kv side of the substation had been opened, as suggested by Gorman, the 23 kv knife
blades would not have been energized.
Hongeva testified that he had never seen a substation wired like the C-5 substation.
(Tr. 186). All other substations that he is familiar with are wired so that the electricity flows
through the circuit breakers before entering the knife blade switches. (Tr. 186; Ex. S-3).
After this incident, he checked all of the other substations at the mine and confirmed that none
296

of the others were wired like the C-5. Hongeva investigated the history of this substation to
try to understand why it was not wired correctly. The C-5 substation arrived at the mine in
1985. At some point after it arrived and before Hongeva transferred to the Kayenta Mine, the
breakers and blade switches were changed out. The original breakers and blade switches were
part of "one whole unit." (Tr. 190). Hongeva believes that when this single unit was
replaced with separate breakers and knife switches, the wiring was not modified to account for
this change. (Tr. 190-91). Hongeva was not the electrical manager when this change was
made.
The Department of Labor's Mine ·safety and Health Administration ("MSHA")
received an anonymous complaint that there had been an electrical arc and fireball at the C-5
substation. MSHA Inspector John Hancock was sent to the mine to investigate this complaint.
At the conclusion of his investigation, Hancock issued a citation and two orders under section
104(d)(l) of the Mine.Act.
The inspector testified that it is bad electrical practice to rely on circuit breakers to
determine whether a circuit is energized because breakers do not provide a visual disconnect.
(Tr. 89, 93). He also stated that it was hazardous to use the grounding stick to try to open the
blades because there is a cable at the opposite end of the grounding stick that is attached
directly to the grounding medium of the substation. (Tr. 96). If someone touches a live
component with the grounding stick, an immediate phase to ground fault would be created.
Arcing and a "big bang" would result. (Tr. 96). Hancock testified that, based on the
observations of Gorman, all three phases "became involved in the fault" and "that's when the
fireball grew and came out of the load door." (Tr. 96-97).

A. Citation No. 7633896.
Inspector Hancock issued Citation No. 7633896 under section 104(d)(l) of the Mine
Act alleging a violation of section 77.509 of the Secretary's safety standards. The body of the
citation states as follows:
The 69 kv high voltage power was not de-energized at the C-5
substation before work was performed. The electrical manager
thought that he dropped the 23 kv high voltage power by
tripping the circuit breaker. When he used a hot stick to pull
loose the stuck blades of the 23 kv disconnects he made a phase
to ground condition that caused an arc and a fireball. The power
conductors came from the transformer to the top of the
disconnects instead of to the line side of the circuit break.er. The
disconnects were destroyed and there was smoke discoloration
in the 23 kv side of the substation.

297

The inspector determined that the gravity was serious, that the violation was of a significant
and substantial nature ("S&S"), and that the negligence was high. The safety standard
provides that "[p]ower circuits and electrical equipment shall be de-energized before work is
done on such circuits and equipment, except when necessary for troubleshooting or testing."
The Secretary proposes a penalty of$5,000 for this violation.
Peabody argues that because "no electrical work was being performed at the time the
incident occurred, the standard does not apply and citation should be vacated." (P. Br. 6).
Peabody contends that Hongeva was troubleshooting at the time of the incident and that no
electrical work had yet been performed. Peabody believes that troubleshooting is "the act of
determining what is the cause of the problem [and that] electrical work occurs once the cause
of the problem is determined." (P. Br. 5-6). Hongeva was using the grounding stick to try to
figure out why the blades were sticking. Everyone at the hearing agreed that Hongeva did not
know why the blades were sticking. He did not authorize the hourly employees to begin
working on the problem because he did not yet know what the problem was. Only bargaining
unit employees can perform work at the mine under the union contract. Thus, it believes that
Hongeva was troubleshooting, not working.
The Secretary argues that once Hongeva loosened the plexiglass shield in front of the
knife blades, any troubleshooting ended. Hongeva was working to get the blades to
disengage. She points to her Program Policy Manual for guidance, which provides that "
'troubleshooting or testing,' for the purpose of this section would include the work of locating
an electrical problem in the electric circuits on an energized machine, but would not include
the actual repair with the machine energized." (V MSHA, U.S. Dep't of Labor, Program
Policy Manual, Part 77.500 (1993) ("PPM')). The Secretary argues that Hongeva had located
the electrical problem and was attempting to repair it when he inserted the grounding stick
behind the plexiglass shield.
I resolve this issue on a more fundamental basis by considering the unambiguous
wording of the safety standard taken as a whole. The safety standard does not provide that
circuits can remain energized whenever troubleshooting or testing is being performed. Rather,
it requires that circuits and electrical equipment be de-energized "except when necessary for
troubleshooting and testing." There are many situations that arise when it is necessary that the
power be on when equipment or circuits are being tested or when troubleshooting is being
performed. Under the facts in this case, however, there was absolutely no reason for the knife
blades to be energized when Hongeva was using the grounding stick to disengage the blades.
Indeed, Hongeva thought that the blades were de-energized when he inserted the grounding
stick and it is clear that he would have had Gorman open and lock out the 69 kv knife blade
switch had he known that the 23 kv blades were hot. Nobody disputes the fact that power
should not be applied to knife blade switches when someone is trying to disengage them with
a grounding stick. The troubleshoot exception clearly does not apply when an electrician
thinks that a circuit is de-energized as he is performing his "troubleshooting" tasks when,
unknown to him, the circuit is actually energized. It especially would not apply in situations,

298

such as this one, where the electrician would not have performed the alleged troubleshooting
had he known that the circuit was energized. Peabody's argument that the Secretary failed to
establish a violation because Hongeva was engaged in troubleshooting is illogical and I reject
it.
I also find that Hongeva was working on the circuit, rather than troubleshooting, when
he used the grounding stick to try to disengage the knife blades. He knew that the blades were
not disengaging within the switch because of a mechanical problem. Either the mechanism
that connects the exterior lever to the blades was not functioning properly or there was a
problem with the blades themselves.3 In any event, inserting a grounding stick through the
crack in the plexiglass to dislodge the blades would not reveal the cause of the problem. In
order to determine why the blades did not open when the lever on the substation was in the
down position, someone would have to examine the entire mechanical actuating system for the
23 kv blades. Hongeva was actually trying to repair the blades on a temporary basis so that his
crew could permanently repair or replace the knife blade switches, the mechanism that
actuates the blades, or both. Hongeva was not troubleshooting because he was not performing
"the work of locating an electrical problem in the electric circuits." Id I find that the
Secretary established a violation of section 77 .500.
Peabody argues that the Secretary failed to meet her burden of proving that the
violation was S&S. Hongeva was standing several feet from the opening in the plexiglass
shield. Although Hancock testified that an electrical arc produces great heat, Hongeva
testified that he did not feel any heat from the arc. (Tr. 193). Gorman also testified that he felt
no heat. (Tr. 72). As a consequence, it was not reasonably likely that the Gormans or
Hongeva were exposed to a hazard that would contribute to a serious injury. Peabody points
to the photographic and physical evidence that the arc did not produce much heat. (Ex. S-9;
Tr. 137). Paint did not blister and the rubber gasket around the load door did not melt.
Peabody argues that Gorman's testimony about a large ball of fire should not be credited.
Hongeva testified that he merely stepped back a few feet from the substation. Peabody states
that, if there had been a ball of fire that flew 20 feet through the air as Gorman alleged, there
would have been more damage to the substation.
The Secretary contends that it is reasonably likely that a "serious injury could occur
from the violative condition of working on energized high voltage equipment." (S. Br. 10).
She relies on the testimony of Hancock, an MSHA electrical inspector and certified
electrician. He reviewed statistics that showed that since 1986, "there have been 56 incidents
of electrical injuries in the surface metal/nonmetal industry of which 24 were caused by the
failure to de-energize electrical circuits." Id. Hancock emphasized the danger of working
near energized high voltage equipment. He believes that the initial arcing warned the men to

3

In Royal Cement Co., Inc., 23 FMSHRC 764 (July 2001) (ALJ), a knife blade switch
did not open in much the same manner as in the instant case. In that instance, MSHA determined
that the blade failed to open because of an accumulation of dust and dirt in the switch itself.
299

get out of the area before the phase-to-phase event that created the fireball. The Secretary also
relies on the testimony of Gorman about the explosion, the ball of fire, and a bolt of lightning
at the top of the substation. Peabody had removed most of the damaged electrical equipment
so the remaining physical evidence should not be relied upon.
I find that the Secretary established that the violation was S&S. An S&S violation is
described in section 104(d)(l) of the Mine Act as a violation "of such nature as could
significantly and substantially contribute to the cause and effect of a ... mine safety or health
hazard." A violation is properly designated S&S "if based upon 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." National Gypsum Co., 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), the
Commission set out a four-part test for analyzing S&S issues. Evaluation of the criteria is
made assuming "continued normal mining operations." US. Steel Mining Co., 6 FMSHRC
1573, 1574 (July 1984). The question of whether a particular violation is S&S must be based
on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April
1988). The Secretary must establish: (1) the underlying violation of the safety standard; (2) a
discrete safety hazard, 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. The
Secretary is not required to show that it is more probable than not that an injury will result
from the violation. US. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).
The violation clearly contributed to a discrete safety hazard. The issue is whether there
was a reasonable likelihood that the hazard contributed to would result in an injury. The
citation was issued because Peabody employees were working on power circuits that had not
been de-energized. Such work can most definitely contribute to a serious injury. Whether the
events of December 12, 2000, created a huge fireball is not determinative. The evidence
establishes that someone could have been seriously injured, or killed, when Hongeva tried to
open the energized blade switches with the grounding stick, especially since he thought they
had been de-energized. When an electrician unknowingly works on an energized power
circuit the results can be lethal. See e.g. Royal Cement Co., Inc., 23 FMSHRC at 766-67. It
was reasonably likely that the hazard contributed to by the violation would have resulted in an
injury of a reasonably serious nature.
Peabody also argues that the Secretary did not present sufficient evidence to support a
finding that the violation was the result of its unwarrantable failure to comply with the safety
standard. The evidence shows that Hongeva did not know that the 23 kv line was energized
when he touched the grounding stick to the blades nor could he have reasonably known, given
the steps he took to de-energize the circuit. He did not know that the substation was wired
differently and the fact that Hancock testified that it was "bad electrical practice" to rely on the
circuit breakers to de-energize the circuit is "not sufficient to sustain a finding of
unwarrantable failure conduct." (P. Br. 11).
300

The Secretary contends that Hongeva's actions and lack of knowledge concerning the
electrical systems at the mine amonnts to a reckless disregard for safety. Hongeva, the
electrical manager, lacked basic knowledge of the wiring in the C-5 substation and he
disregarded good electrical practices by relying on the breakers to de-energize the circuit.
Hongeva became the electrical manager in 1998-99, yet he had never been inside the
substation and had never reviewed the schematic. Thus, his reliance on the circuit breakers
was not based on first-hand knowledge. Finally, Hongeva failed to heed the suggestion of a
first class electrician on his crew that the 69 kv line coming into the substation should be deenergized. This failure was especially egregious after there was an electrical discharge when
Hongeva was able to open one of the knife blades with the grounding stick.
I find that the Secretary established that the violation was the result of Peabody's
unwarrantable failure to comply with section 77.500. Unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997,
2004 (December 1987). Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference," or a "serious lack ofreasonable care."
Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94(February1991).
It is important to keep in mind that it is Peabody that is being charged with the
unwarrantable failure violation here, not Hongeva, so the issue is whether Peabody
unwarrantably failed to comply with the standard. At some point in the past, Peabody
incorrectly wired the C-5 substation and did not advise its electrical employees that the circuit
breakers did not protect the knife blade switches on the substation. This situation created a
serious hazard that could have resulted in a fatality and Peabody's failure to prevent or correct
it was grossly negligent. Peabody was not required under MSHA's electrical standards to
regularly inspect the inside of the substation, but it could have easily inspected it at a time
when the substation was being moved.

The hazard created by the violation of section 77.500 was extremely serious. Gorman
suggested an easy method to eliminate the hazard: open the 69 kv switch to de-energize the
transformer. Gorman made this suggestion twice. Hongeva told him not to open the 69 kv
blades because the 23 kv side of the transformer was not hot. (Tr. 210). Gorman knew that
relying on the circuit breakers was not a good practice because one or more of the phases in
the breakers could also be stuck and the lights and meters on the controls might not register
the problem. (Tr. 39). Inspector Hancock testified that it is poor electrical practice to rely on
circuit breakers to ensure that a high voltage circuit is de-energized because a circuit breaker
does not provide visible proof that the circuit is dead. (Tr. 89, 93). Hongeva admitted that
relying on breakers to ensure that the 23 kv line was de-energized when the 69 kv visible
disconnect blades were closed was not a good electrical practice. (Tr. 211).
''The Commission has relied upon the high degree of danger posed by a violation to
support an unwarrantable failure finding." Midwest Materials Co., 19 FMSHRC 30, 34 (Jan.
1997) (citations omitted). Although no employee was injured as the events played out in this

301

instance, the condition could have seriously injured or killed someone. When evaluating
whether a violation was the result of an operator's unwarrantable failure to comply with the
standard, the Commission has also considered whether the violation took place in the presence
of a foreman. Id. at 35. A foreman is held to a higher standard of care. Id In this case, not
only did the violation occur in the presence of Peabody's top electrical manager, but he is the
individual who committed the violation. Moreover, he committed the violation in the face of
suggestions from one of his first class electricians that the 69 kv switch be opened, which
would have eliminated the hazard and prevented the violation. I find that the violation was the
result of aggravated conduct constituting more than ordinary negligence. Although the
violation was not intentional, it displayed a serious lack ofreasonable care. The Secretary
established that the violation of77.500 was caused by Peabody's unwarrantable failure to
comply with that standard.

B. Order No. 7633897
The Secretary moved to vacate this citation at the commencement of the hearing. (Tr.
5). For good cause shown, the motion is granted.

C. Order No. 7633898.
Inspector Hancock issued Order No. 7633898 under section 104(d)(l) of the Mine Act
alleging a violation of section 77.501 of the Secretary's safety standards. The body of the
citation states as follows:
The 69 kv high voltage power was not de-energized, locked, and
suitably tagged before work was performed on the 23 kv
disconnects. The power conductors came from the transformer
to the top of the 23 kv disconnects. The electrical manager
stated that he thought he dropped the 23 kv power by tripping
the circuit breaker.
The inspector determined that the gravity was serious, that the violation was of a significant
and substantial nature, and that the negligence was high. The safety standard provides, in part,
that"[d]isconnecting devices shall be locked out and suitably tagged by the persons who
perform [electrical] work. ... " The Secretary proposes a penalty of $7,000 for this violation.
Peabody argues that this standard is also limited to situations where electrical work is
being performed. It maintains that ''when this standard is taken in context with other
standards, the regulations draw a distinction between performing electrical work and
troubleshooting." (P. Br. 6). Peabody relies on the PPM which states, in relation to this
standard, electrical work includes "the design, installation, maintenance, or repair of electric
equipment or circuits." (PPM at Part 77.501). Peabody contends that Hongeva was not
designing, installing, maintaining, or repairing electric equipment or circuits.
302

The Secretary maintains that Hongeva was performing work at the time of the incident.
She relies, in part, on her Program Policy Manual and Commission precedent. She quotes
from language in the PPM that defines "electrical work" to include "work performed inside
electrical substations or other areas in proximity to exposed energized electrical parts, work
performed inside transformers ... or other enclosures of electric equipment and circuits ...."
Id. The Secretary argues that the evidence establishes that "Hongeva was performing
electrical work and his intent was to repair the disconnect blades." (S. Br. 16).
I find that the Secretary established a violation of section 77.501. Peabody failed to
lock out and tag out the disconnecting devices. The applicable disconnecting devices that
were required to be locked out were the 69 kv knife blades. Under this standard, if work were
being performed on the 23 kv trunk line after it was energized, Peabody could have complied
with the standard by locking out the 23 kv knife blade switches. In this instance, however,
Peabody was working on these 23 kv knife blades at the time of the violation, so Peabody was
required to lock out and tag out the 69 kv knife blades. For the reasons set forth above, I find
that Hongeva was performing "electrical work" when he used the grounding stick to try to
dislodge the knife blades. The general "troubleshooting" exception is designed to allow an
electrician to knowingly work on a live circuit in certain circumstances. Peabody's
"troubleshooting" arguments are illogical. There is no dispute that the 69 kv knife blade
switches were not locked out as required and I conclude that a violation of77.501 has been
established.
Failing to lock out and tag out the circuit clearly contributed to a discrete safety hazard.
The citation was issued because Peabody had not locked out the power circuit that Hongeva
was working on. This violation, while similar to the violation of section 77.500, is a distinct
violation. Failure to lock out and tag out a circuit creates a serious risk of electrocution or
serious injury. Hongeva could have been seriously injured, or killed, when he used the
grounding stick to open the 23 kv blade switches on a circuit that had not been locked out. It
was reasonably likely that the hazard contributed to by the violation would have resulted in an
injury of a reasonably serious nature.
For the reasons set forth with respect to the violation of section 77.500, I find that the
Secretary established that the violation of 77.501 was the result of Peabody's unwarrantable
failure to comply with the standard. The violation was committed by Peabody management
over the objection of an hourly employee.4 It is clear that Gorman believed that the circuit
should be locked out at the 69 kv knife blades. (Tr. 77). Gorman wanted to comply with the

4

Gorman was asked why he did not just lock out and tag out the 69 kv circuit without
getting Hongeva's approval. He was a first class electrician who clearly had the authority and
responsibility to lock out electrical circuits. Gorman testified that when he is working with
electrical management, he places "a lot of trust" in them and believes that they are paid to "know
[the] equipment." (Tr. 54, 62). Gorman followed Hongeva's instruction because "he's the one
that's in charge." (Tr. 77).
303

safety standard but mine management did not want him to do so. Peabody's violation of
section 77.501 demonstrated a serious lack of reasonable care that was greater than ordinary
negligence.

II. APPROPRIATE CIVIL PENALTIES
Section 1 lO(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. The record_shows that Peabody has a history of 170 paid
violations at the Kayenta Mine during the 24 months preceding January 2, 2001. (Ex. S-1).
Peabody is a rather large coal mine operator. All of the violations were abated in good faith.
As discussed above, the violations were very serious and Peabody's negligence with respect to
the violations was high. The penalties assessed in this decision will not have an adverse effect
on Peabody's ability to continue in business. Based on the penalty criteria, I find that the
penalties set forth below are appropriate.

ID. ORDER
Based on the criteria in section 1 IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:

Citation/Order No.
7933896
7933897
7933898

30 C.F.R §

Penalty

77.500
77.502
77.501

$7,000.00
Vacated
$8,000.00

TOTAL PENALTY

$15,000.00

304

.
Order No. 7933897 is VACATED and WEST 2001-202-R is DISMISSED.
Peabody's contests of Citation No. 7933896 and Order No. 7933898 are DENIED and the
citation and order are AFFIRMED as written by Inspector Hancock. WEST 2001-201-R and
WEST 2001-203-R are DISMISSED. Peabody Western Coal Company is ORDERED TO
PAY the Secretary of Labor the sum of $15,000.00 within 40 days of the date ofthis decision.

~

Richard W. Manning
Administrative Law Judge

Distribution:
Karen L. Johnston, Esq., Jackson Kelly, 1099 18th Street, Suite 2150, Denver, CO 80202-1958
(Certified Mail)
Isabella Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St.,
Suite 1110, San Francisco, CA 94105-2999 (Certified Mail)

RWM

305

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, O.C. 20001

June 17, 2003

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

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2003-15-M
A. C. No. 23-02077-05511
Docket No. CENT 2002-315-M
A. C. No. 23-02077-05510

v.

WASHINGTON COUNTY AGGREGATES,
Respondent

Washington County Aggregates

DECISION
Appearances: Ann N. Noble, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, on behalf of Petitioner;
Kelly C. Silvey, Washington County Aggregates, Potosi, Missouri,
on behalf of Respondent.
Before:

Judge Zielinski

These cases are before me on Petitions for Assessment of Civil Penalties filed by the
Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The petitions allege that Washington County Aggregates ("WCA") is liable for
eleven violations of mandatory safety and health standards applicable to surface metal and
nonmetal mines. A hearing was held in St. Louis, Missouri. At the commencement of the
hearing, the Secretary modified one of the citations and Respondent agreed to pay a reduced
penalty for that violation. Respondent also withdrew its notices of contest as to three of the
remaining citations. The Secretary proposes civil penalties totaling $2,671.00 for the seven
alleged violations remaining at issue. For the reasons set forth below, I find that WCA
committed six of the alleged violations and impose civil penalties totaling $1,025.00.
Findings of Fact - Conclusions of Law
Washington County Aggregates is a small limestone mine owned by a partnership that
acquired it in October of 2000. The operation, located near Potosi, Missouri, consists of a single
bench mine, with a crusher, conveyors, screens, a scalehouse and a maintenance area.
Approximately five persons are employed at the site. In April 2002, Lawrence D. Sherrill, an
inspector employed by MSHA for over six years, conducted an inspection ofWCA's mine. He
determined that there were violations of health and safety standards and issued citations and
306

orders, eleven of which were contested in these actions.
As noted above, the parties agreed to settle four of the citations. The citations remaining
at issue will be discussed in the order that evidence was presented at the hearing.
Citation/Order No. 6212148
Citation/Order No. 6212148 was issued by Sherrill on April 10, 2002, and alleges a
violation of30 C.F.R. § 56.14101(a)(l) which requires that: "Self-propelled mobile equipment
shall be equipped with a service brake system capable of stopping and holding the equipment
with its typical load on the maximum grade it travels." The conditions he observed were noted
on the citation as:
The service brakes on the Caterpillar 966B (serial# 75A3959 B) would
not stop and hold the loader on a grade it travels. The service brakes were tested
on the declined roadway just north of the chat pile. The loader rolled freely
forward with the transmission in neutral and the service brakes fully applied. The
loader was in operation loading customer trucks from various stockpiles at the
mine property. This condition created the hazard of the equipment operator not
being able to stop the loader. An oral 107(a) imminent danger order was issued to
Steve Silvey, co-owner, at 1114 hours this date.
Sherrill concluded that it was highly likely that the violation would result in a fatal injury,
that the violation was significant and substantial, that one person was affected and that the
operator's negligence was high. The imminent danger order directed that the haul truck not be
used until the service brakes were operational. The Secretary proposes a specially assessed civil
penalty of $2,200.00 for this violation.
The Violation
In an enforcement proceeding under the Act, the Secretary has the burden of proving an
alleged violation by a preponderance of the evidence. In re: Contests ofRespirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd, Sec '.Y ofLabor v. Keystone
Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303,
1307 (July 1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152 (Nov. 1989); Jim
Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987).
Sherrill observed the loader being used to load customer trucks from a stockpile of
material referred to as "chat." He approached the driver, James Benson, inquired about the
brakes, and was told that they were "shot" or ''weak." Benson stated that he had told Andy
Pittman, the foreman, about the problem numerous times. Pittman had operated the loader on the
previous shift. There was a grade adjacent to the stockpile that led up to a storage area. Sherrill
estimated the grade to be 7-8% and typical of the grades on other ramps in the work area.
307

Benson stated that he traversed that grade with the loader a couple of times each day. At
Sherrill's instruction, the loader was driven to the top of the grade, turned around, and started
down at a slow speed. As the 36,000 pound loader proceeded down the grade, the transmission
was placed in neutral and the service brakes were applied. The loader did not stop or slow
appreciably. It proceeded at a steady rate down the grade until it reached a nearly level area at
the bottom, where it stopped.
Sherrill issued an oral imminent danger order, directing that the loader not be used until
the defective brakes were repaired. While he wrote the order/citation on his laptop computer,
one ofWCA's partners asked ifthe brakes could be adjusted, and Sherrill replied in the
affirmative. The brake adjustment was made during the approximately fifteen minutes that
elapsed while the order was written. The loader was then tested on the same grade. The brakes
worked effectively, and the citation/order was terminated.
Kelly Silvey, WCA's representative, is one of its owners. He investigated the alleged
violation after receiving the special assessment, and conceded that the loader's brakes were not
adjusted properly and that the foreman was told that they needed adjustment prior to the shift
commencing. Tr. 141, 145. However, he contends that the test was conducted on a grade
considerably steeper than those upon which the loader normally is operated, and that the results
of the test were mischaracterized so as to inflate the gravity of the violation.
Silvey measured the grade using a tape measure and a level and found that the initial forty
feet of the grade declined at a rate of eighteen inches in one hundred inches, i.e., 18%, about
twice as steep as other ramps the loader would encounter. Tr. 149. He also testified that the area
at the top of the grade was used only to store extra screens and that the loader did not normally
traverse the test grade. Tr. 150-54, 160-61. He attributed the driver's representation to the
contrary to an ongoing dispute between the driver and the foreman. Tr. 142, 162-63. I found
Silvey to be a very credible witness who candidly admitted several facts adverse to WCA.
Sherrill similarly impressed me as an excellent inspector and a credible witness. He was
very thorough in preparing for and conducting the inspection and previous inspections of the
facility. I find that the grade upon which the loader was tested was not normally traversed by the
loader. However, I credit Sherrill's assessment that the test grade was generally typical of the
grades of other ramps on the property that would have been used by the loader. While the initial
portion, measured by Silvey, was somewhat steeper than the grade on the other ramps, the loader
was tested with the bucket empty and the brakes were unable to stop it until it reached an
essentially level area. Therefore, I find that the regulation was violated.
Significant and Substantial
A significant and substantial ("S&S") violation is described in section 104(d)(l) 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
308

S&S "if, based upon 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 Div., Nat '/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
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.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec'y ofLabor, 861 F.2d
99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
In US. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
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., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. US. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); US. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of "continued normal mining operations." US. Steel
Mining Co., Inc., 6 FMSHRC at 1574. 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 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
1007 (Dec. 1987).
Sherrill described several scenarios in which an injury could occur because of the
defective brakes. The loader was built in 1963. Because of its age, it was not required to have a
seat belt, and did not have one. In the event of a collision, the driver could be thrown into the
windshield or steering wheel, or possibly ejected from the cab. Of course, the inability of the
loader to stop quickly also created a hazard for other vehicles and/or pedestrians it might
encounter in the loading area or while traveling from work-site to work-site.

309

WCA argues that Sherrill's description of the test result, that the loader "rolled freely
fotward," was misleading and overstated the defective condition. The point has merit. While the
brakes did not bring the loader to a stop on the grade, the test grade was substantial and the
brakes were able to prevent the 36,000 pound machine from accelerating. Obviously, the brakes
were supplying some stopping power, which appears to have been adequate for normal loading
operations. Prior to the test, Sherrill had observed the loader for about ten minutes as it was used
to load customer trucks. Tr. 23. Two trucks were loaded, each requiring three bucket loads.
Tr. 38. The loader performed six cycles that included stopping to maneuver and stopping at the
trucks to dump the loads. Sherrill did not observe any problems or difficulties with the operation
of the loader, including its ability to slow and stop, as needed. Tr. 42. The violation was abated
promptly with a simple adjustment of the brakes.
In evaluating the risk of injury in other situations, the Commission has emphasized that
the vagaries of human conduct cannot be ignored. See, e.g., Thompson Bros. Coal Co.,
6 FMSHRC 2094, 2097 (Sept. 1984). While I disagree with Sherrill's assessment that the
probability of injury was "highly likely," I find that there was a reasonable likelihood that the
hazard contributed to by the violation would result in a serious injury. The brakes were "weak,"
and there was a reasonable possibility of a collision that would result in a serious injury to the
equipment operator. The Secretary has carried her burden on this issue. I find that the violation
was significant and substantial. I also affirm the imminent danger order. 1
Negligence
Sherrill evaluated the operator's negligence as "high" based upon Benson's statement that
he had told Pittman numerous times that the brakes were not working properly. Silvey
acknowledged that Pittman had been told that the brakes needed adjustment at the beginning of
the shift. Silvey had operated the loader approximately one week before the inspection. He
found that the brakes performed adequately, but felt that they would not have held the loader on
the steep portion of the test grade. Tr. 144. At the time of the inspection, the loader's service
brakes were in need of adjustment and they should have been repaired prior to the loader being
put into operation. However, the brakes did supply some stopping power, which apparently was
at least marginally adequate for normal operations, a conclusion that was partially confirmed by
Sherrill's observations. Under the circumstances, I find that the operator's negligence in
deferring the brake adjustment is more properly categorized as moderate.

An imminent danger order need not be based upon a violation of a mandatory
standard or a condition that poses an immediate danger. It is sufficient that the condition could
reasonably be expected to cause serious physical harm if normal mining operations were
permitted to proceed before the dangerous condition is eliminated. Cyprus Empire Corp.,
12 FMSHRC 911, 918-19 (May 1990).

310

Citation No. 6212149
Citation No. 6212149 alleges a violation of 30 C.F.R. § 56.14107(a), which requires that
moving machine parts that can cause injury "shall be guarded to protect persons from contacting"
them. The conditions noted on the citation were:
There were no guards to prevent persons from contacting the pinch points
and moving machine parts of the v-belt drive system on the Caterpillar 966B front
end loader. There was no guard on either side of the engine compartment. The
pinch point was located approximately 5' 6" above ground level on both sides of
the loader. This condition created the hazard of an employee contacting the
moving machine parts. This loader was in operation loading customer trucks
from various stockpiles at the mine.
Sherrill concluded that it was unlikely that the violation would result in a permanently
disabling injury, that the violation was not significant and substantial, that one person was
affected and that the violation was due to the operator's moderate negligence. A civil penalty of
$55.00 is proposed.
The Violation

In construing an analogous standard2 in Thompson Bros. Coal Co., 6 FMSHRC 2094,
2097 (Sept. 1984), the Commission 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. See, e.g., Great Western Electric,
5 FMSHRC 840, 842(May1983); Lone Star Industries, Inc., 3 FMSHRC 2526,
2531 (November 1981 ). Applying this test requires taking into consideration all
relevant exposure and injury variables, e.g., 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-[case ]basis.

2

30 C.F.R. § 77.400
(a) Gears; sprockets; chains; drive, head, tail and takeup pulleys; flywheels;
couplings; shafts; sawblades; fan inlets; and similar exposed moving machine
parts which may be contacted by persons, and which may cause injury to persons
shall be guarded.
311

Thompson involved citations issued for failure to guard cooling fan blades, air
compressor belts and pulleys in the engine compartments of two Euclid R-50 dump trucks. The
Commission affirmed the decision of an ALJ finding violations of the standard based on the
possibility that a miner might come into contact with the exposed moving machine parts while
examining or working on the engines while they were idling. While the possibility of such
contact was determined to be "minimal," it satisfied the "reasonably possible" test.

I similarly find that, while the possibility of contact and injury presented by the
unguarded v-belt/pulley assembly was minimal, contact and injury was reasonably possible
within the meaning of Thompson. There is no question that the v-belt/pulley assembly was
accessible to a miner or mechanic standing near the engine compartment of the loader. The
loader driver could contact the v-belt/pulley with a hand or clothing while exploring some
problem with the engine. A mechanic examining the engine while idling, even though trained to
work in such conditions, could also inadvertently contact the unguarded v-belt/pulley resulting in
lllJUfY.
Respondent's failure to guard the v-belt pulley violated the standard. I concur with the
inspector's determinations that the possibility of injury was unlikely, that one person was
affected and that the violation was a result of the operator's moderate negligence.
WCA contends that the loader had been inspected previously by MSHA and that the
subject condition had not been cited, thereby raising the issue of whether it had received fair
notice of the interpretation of the standard urged by the Secretary here. See Lodestar Energy,
Inc., 24 FMSHRC 689, 694 (July 2002); Island Creek Coal Co., 20 FMSHRC 14, 24 (Jan.
1998); Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). The only prior
inspection of the mine while under WCA's ownership was conducted by Sherrill in June 2001.
He inspected front-end loaders and recorded the serial numbers of the equipment that he
inspected. He had no record of inspecting the loader in question. Tr. 73-74, 77-78. Silvey
testified that the loader, in the same condition, was on the site in June 2001, but could not say for
sure that it was in operation at the time of the inspection. Tr. 167. I find that the loader was not
inspected by Sherrill in June 2001. The loader was most likely inspected while the mine was
operating under previous ownership. However, side panel guards may have been in place at that
time. There were holes in the frame of the loader which could have been used for such guards,
and they simply may not have been replaced at some point in time. Tr. 74, 165-67. WCA failed
to establish that this particular condition had been tacitly approved by MSHA inspectors in the
past. Therefore, its fair notice defense must be rejected. I also note several other ALJ decisions
finding violations of guarding standards based upon the failure to install guards on moving
machine parts in the engine compartments of vehicles that were manufactured without such
guards. See Nelson Bros. Quarries, Inc., 21FMSHRC1100, 1102-03 (Oct. 1999)(ALJ);
Riverton Corp., 16 FMSHRC 2082 (Oct. 1994) (ALJ); Power Operating Co., 16 FMSHRC 591,
595(May1994) (ALJ).

312

Citation No. 6212150
Citation No. 6212150 alleges a violation of 30 C.F.R. § 56.4402, which requires that
flammable liquids "shall be kept in safety cans labeled to indicate the contents." The conditions
noted on the citation were:
Flammable liquid was being stored in a plastic container in the bed of the
Chevrolet maintenance truck. Approximately 4 gallons of gasoline was in the 5
gallon container. The practice of storing flammable liquids in containers other
than safety cans created a fire and explosion hazard. Combustible materials and
ignition sources, including a welder and cutting torch set, were also in the bed of
the truck. This truck is used as needed as transportation and in performing
various maintenance duties at the mine.
Sherrill concluded that it was reasonably likely that the violation would result in an injury
involving lost work days or restricted duty, that the violation was significant and substantial, that
one person was affected and that the violation was due to the operator's moderate negligence.
A civil penalty of$196.00 is proposed.
The Violation
The container in the bed of the truck, a picture of which was introduced into evidence,3
was a plastic gas can typical of those used by most homeowners for the storage of gasoline for
lawnmowers and similar pieces of equipment. It bore a label identifying the contents as gasoline
and warning of its dangerous nature. The label also indicated that the container complied with
standard specifications used by "Underwriters Laboratories, Inc," and developed by nationally
recognized groups, "ANSI/ASTM." It did not, however, meet the requirements of the regulation.
The term "safety can" is defined elsewhere in the regulations as "(a] container of not over five
gallons capacity that is designed to safely relieve internal pressure when exposed to heat and has
a spring-closing lid and spout cover." 30 C.F.R. § 56.4000. It is unclear whether the plastic
container was designed to safely relieve pressure when exposed to heat. It clearly did not have a
spring-closing lid. Therefore, the regulation was violated.
Significant and Substantial
The violation contributed to a hazard, a potential fire, which could result in a serious
injury. Sherrill determined that the violation was significant and substantial because of"readily
available ignition sources" in and near the bed of the truck. Tr. 83. The truck was equipped with
a cutting torch and welder and there were hand tools and other metal objects in the truck bed. In
the event of a fire, he concluded that a miner fighting the fire might suffer burns or an injury
from a fall. Tr. 83-84. However, he verified that the can was in good condition, and that there

3

Ex. P-5.
313

was no spillage or gasoline vapor in the vicinity of the can. Tr. 91. Sherrill conceded that it was
unlikely that the metal objects in the bed of the truck would cause a spark capable of igniting any
gasoline that escaped from the can. Tr. 95. He also confirmed Silvey's testimony that the cutting
torch and welder would be used some distance from the truck bed. Tr. 91, 170.
I find that the possibility of a fire resulting from use of the plastic gasoline can was
remote. The truck was owned by Pittman and was used only occasionally to perform
maintenance tasks. Obviously, such tasks would be performed outdoors and a fire alone would
not pose a particularly serious threat of injury to any miner. While it is possible that a miner
engaged in fighting such a fire could suffer a serious injury, I find the possibility of injury from
use of the non-conforming gasoline can to be too remote to justify classifying the violation as
significant and substantial.
Citation No. 6212152
Citation No. 6212152 alleges a violation of30 C.F.R. § 56.14107(a), which requires the
guarding of moving machine parts that can cause injury. The conditions noted on the citation
were:
There was no guard to prevent persons from contacting the pinch point and
moving machine parts of the alternator v-belt drive system on the plant generator.
The pinch point of the v-belt was located 4' 6" above the adjacent walkway on
both sides of the generator. This condition created entanglement hazards. An
employee accesses this area to start and stop the generator when the plant
operates.
Sherrill concluded that it was unlikely that the violation would result in a permanently
disabling injury, that the violation was not significant and substantial, that one person was
affected and that the violation was due to the operator's moderate negligence. A civil penalty of
$55.00 is proposed.
The Violation
The v-belt pulley in question is depicted in exhibit P-9. Sherrill did not take into
consideration the probability of an injury occurring as a result of the condition, in determining
whether it violated the standard. Tr. 102. He did, however, consider the probability of injury in
evaluating the gravity of the violation. Sherrill's assessment of the likelihood of injury was
based upon his belief that a WCA employee entered and exited the trailer at the beginning of the
day to start the generator and again at the end of the day to tum it off, thereby passing by the
running generator twice a day. The employee could be injured ifhe tripped or fell and
encountered the pinch point. Tr. 97-99. Silvey testified, however, that employees seldom passed
through the trailer to access the generator's control room because there was a more direct route
through a different entrance. Tr. 153. He also questioned whether an employee could encounter

314

the pinch point, which was four and one-half feet above the wooden floor and about two and onehalf feet beyond and slightly below metal tubing that was immediately above the muffler/exhaust
piping. Tr. 172, 177; ex. P-9. There is no evidence that there were any tripping hazards on the
trailer's walkways. According to Silvey, it is extremely unlikely that a miner would come into
contact with the v-belt pinch point in the course ofWCA's normal operations.
I accept Silvey's credible testimony and find that the probability of contact and injury was
not "reasonably possible" within the meaning of Thompson. The condition cited did not violate
the regulation, and the citation will be dismissed.
Citation Nos. 6212156. 6212157 and 6212158
Citation Nos. 6212156, 6212157 and 6212158 allege violations of 30 C.F.R.
§ 62.120, which requires that: "If during any work shift a miner's noise exposure equals or
exceeds the action level the mine operator must enroll the miner in a hearing conservation
program that complies with § 62.150 of this part." The conditions noted on the citations were
that miners operating two front-end loaders and the crushing plant were exposed to noise lev:els
exceeding the action level and that they had not been enrolled in a hearing conservation program
meeting the requirements specified in the regulations.
Sherrill concluded that it was unlikely that the violations would result in a permanently
disabling injury, that they were not significant and substantial, that one person was affected by
each violation and that they were due to the operator's moderate negligence. A civil penalty of
$55.00 is proposed for each violation.
The Violations
Substantial amendments to the regulations governing exposure to occupational noise were
promulgated in 1999, and became effective on September 13, 2000. See 30 C.F.R. Part 62,
Occupational Noise Exposure, 64 FR 49630, Sept. 13, 1999. Mine operators must monitor
miners' exposure to noise and, where necessary, take steps to assure that no harmful effects result
from noise exposure. Noise exposure is measured by use of a dosimeter worn by a miner during
his entire shift. The dosimeter records and provides a digital readout of a time-weighted average
of noise to which the miner was exposed. If the 8-hour time weighted average (''TWA8") sound
level is 85 decibels or higher, the "action level," the miner must be enrolled in a hearing
conservation program which must include monitoring, provision and use of hearing protection,
audiometric testing, training and recordkeeping. 30 C.F.R. § 62.150. Substantial additional steps
are required if a miner is exposed to noise levels beyond the TWA 8 "permissible exposure level"
of90 decibels. Id.§ 62.130.
On April 11, 2002, Sherrill outfitted three miners with dosimeters, the operator of the #3
Caterpillar 988 front-end loader, the operator of the Caterpillar 966B front-end loader and the
crusher plant operator. The meters measured the miners' exposure to noise over their entire shift

315

and indicated that their exposure exceeded the TWA 8 action level of 85 decibels. While they
were wearing effective hearing protection, which was encouraged and mandated by the operator,
none had been enrolled in a hearing conservation program meeting the requirements of the
regulations.
WCA does not contest the fact that the miners were exposed to noise in excess of the
action level. Nor does it contend that they had been enrolled in a noise conservation program, as
required by the regulation. In addition to noting that miners were supplied with and required to
wear excellent hearing protection devices, Silvey explained that the mine had been acquired in
October 2000, and that materials that had been sent by MSHA announcing and explaining the
newly promulgated noise regulations had not been preserved by the previous owner. The new
owners were simply not aware of the regulations. According to Silvey, they had obtained a copy
of the 2000 edition of the Code of Federal Regulations, but did not believe that the new noise
regulations were included.

It is apparent that WCA provided excellent hearing protection to its employees and
considered itself compliant with safety and health standards it believed applied to its operations.
However, WCA was not in compliance with the regulations governing occupational noise
exposure that became effective on September 13, 2000. WCA cannot rely on ignorance of the
regulations as a defense to the alleged violations. As Sherrill pointed out, the regulations were
readily available from a number of sources. They were also contained in the 2000 edition of
Title 30, of the Code of Federal Regulations, which Silvey acknowledged having.
The regulation was violated as to each of the three miners who were exposed to noise
levels beyond the action level and were not enrolled in an appropriate hearing conservation
program. I agree with Sherrill's determinations that the violations were unlikely to result in a
permanent injury, that the violations were not significant and substantial, that one person was
affected by each violation and that the violations were the result of the operator's moderate
negligence.
The Appropriate Civil Penalties
WCA had operated the mine for less than two years at the time of the inspection. One
previous inspection, in June 2001, had resulted in the issuance of nine citations, all of which
were determined to be single penalty assessments, with the exception of one significant and
substantial violation. Respondent does not contend that imposition of the proposed penalties
would threaten its ability to remain in business, and it is not disputed that Respondent
demonstrated good faith in achieving compliance with the regulations. Respondent is a small
operator with a very small controlling entity. The gravity and negligence assessments with
respect to each violation are discussed above.

316

Citation/Order No. 6212148 is affirmed as a significant and substantial violation.
However, the probability of injury and negligence of the operator were lower than alleged. The
Secretary proposes a penalty of$2,200.00, based upon a special assessment. Upon consideration
of the factors itemized in section 1lO(i) of the Act, I impose a penalty of $750.00.
Citation No. 6212149 is affirmed in all respects. A civil penalty of $55.00 is proposed by
the Secretary. I impose a penalty in the amount .o f$55.00, upon consideration of the factors
enumerated in section 11 O(i) of the Act.
Citation No. 6212150 is affirmed. However, the violation is found not to be significant
and substantial. Rather, the violation is found to be unlikely to result in an injury. A civil
penalty of$196.00 is proposed by the Secretary. I impose a penalty in the amount of $55.00,
upon consideration of the factors enumerated in section 1lO(i) of the Act.
Citation Nos. 6212156, 6212157 and 6212158 are affirmed in all respects. The Secretary
proposes a penalty of $55.00 for each violation. Upon consideration of the factors itemized in
section 1lO(i) of the Act, I impose a penalty of $55.00 for each violation.
The Settlement
At the commencement of the hearing, the parties announced that they had negotiated a
resolution of four of the citations and, by motion, sought approval of the settlement agreement.
The Secretary agreed to modify Citation No. 6212154 to specify that an injury was unlikely to
occur, and that the violation was not significant and substantial. It is proposed that the penalty
for that violation be reduced from $196.00 to $55.00. Respondent withdrew its notice of contest
as to Citation Nos. 6212151, 6212153, 6212155 and 6212154, as amended. I have considered
the representations and evidence submitted and conclude that the proffered settlement is
appropriate under the criteria set forth in section 11 O(i) of the Act.

ORDER
As to the citations that the parties have agreed to settle, Citation Nos. 6212151, 6212153,
6212154 and 6212155, the motion to approve settlement is GRANTED, and Respondent is
directed to pay a civil penalty of $220.00 within 45 days.
Citation No. 6212152 is hereby VACATED, and the petition as to it is DISMISSED.

317

Citation Nos. 6212149, 6212156, 6212157 and 6212158 are AFFIRMED, and Citation
Nos. 6212148 and 6212150 are AFFIRMED, as modified, and Respondent is directed to pay a
civil penalty of $1,025.00 within 45 days.

Mic
Administrative Law Judge

Distribution: (Certified Mail)

Ann N. Noble, Esq, Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550, Denver,

co 80201-6550

Kelley C. Silvey, Washington County Aggregates, P.O. Box 399, Potosi, MO 63664

/mh

318

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

June 25, 2003
HAZEL OLSON,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 2002-443-D
DENV CD 2001-23

v.

Mine I.D. 48-00977
Black Thunder Mine

ARCH MINERAL COMPANY
THUNDER BASIN COAL CO., LLC,
Respondent

DECISION
Appearances:

Margaret A. Miller, Esq., Boulder, Colorado, for Complainant;
Laura E. Beverage, Esq., Jackson Kelly, PPLC, Denver, Colorado,
for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by Hazel Olson
against Thunder Basin Coal Company, a division of Arch Mineral Company ("Thunder
Basin"), under section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §815(c)(3) (the "Mine Act"). Ms. Olson alleges that Thunder Basin terminated her
from her temporary position at the Black Thunder Mine after management discovered that she
had filed safety complaints with Department of Labor's Mine Safety and Health
Administration ("MSHA") when she was employed by another mine operator and after she
complained to Thunder Basin's safety director about conditions in the pit. An evidentiary
hearing was held in Gillette, Wyoming.

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINDINGS OF FACT
Thunder Basin operates the Black Thunder Mine, an open pit coal mine, in Campbell
County, Wyoming. In August 2001, Thunder Basin employed about 575 individuals. The
mine covered about 600 acres and had six active pits. Although Thunder Basin employs its
own miners, it also obtains workers through a temporary employment agency. When a
position needs to be filled, Jack Kasper, the human resources manager, hires and replaces
temporary employees through Adecco, a large world-wide employment agency. (Tr. 236).
Adecco screens the applicants and sends one individual for each open position. Ms. Olson
319

started working at the Black Thunder Mine on August 27, 2001 as an employee of Adecco.
She was not on Thunder Basin's payroll but was a temporary contract worker who was paid on
an hourly basis by Adecco. She was terminated from her temporary position by Thunder
Basin on August 28, 2001.
Ms. Olson previously worked as a miner at the Jacobs Ranch Mine for almost 20 years.
(Tr. 16-17). That mine was initially owned by Kerr-McGee but was subsequently bought by
Kennecott Energy. Jacobs Ranch is also in Campbell County, Wyoming. At Jacobs Ranch,
Olson started out as a laborer but eventually became a truck driver. She drove large, off-road
haul trucks and other heavy equipment. Olson was terminated from her employment at Jacobs
Ranch on December 4, 1999. Ms. Olson filed a discrimination complaint against Jacobs
Ranch Coal Company on February 16, 2001, as a result of her December 4, 1999, termination.
When the Secretary determined that Jacobs Ranch did not discriminate against her, she
brought an action on her own behalf. By order dated January 14, 2003, I dismissed Olson's
complaint of discrimination because it was not timely filed. 25 FMSHRC 9 (Jan. 2003). 1
Ms. Olson applied for work at several temporary employment agencies. Olson went to
these employment agencies because she believed that it was the best way to get back into the
mining industry as a heavy equipment operator. (Tr. 18). At Adecco, Olson worked with
Christina Gilbert, who is the Gillette office supervisor and account representative. 2 (Tr. 152).
Gilbert referred Olson to a temporary position with Washington Group International, a
contractor that was removing top soil at the Black Thunder Mine. Olson took the position
driving 100-ton Caterpillar trucks. That position lasted about one month. Olson received
another referral from Adecco, but she did not take it because she would have had to start the
next work day. Ms. Olson's husband has paralysis on his left side as a result of a stroke and
Olson has to make arrangements for his care when she is working.
Ms. Gilbert called Olson about a Thunder Basin truck driver position in August 2001.
Olson told Gilbert that she was interested. Olson testified that Gilbert told her that although
the Thunder Basin job was temporary, it did not have a specific end date. (Tr. 24, 28). Olson
referred to the position as a "long-term temporary'' job. Id. Gilbert testified that the position
had no time limit and that it could have lasted only a week or lasted a long period of time.
(Tr. 160). Kasper testified that, in any event, it is Thunder Basin's policy to terminate
temporary employees after one year of employment. (Tr. 263-64). It was Olson's
understanding that Thunder Basin frequently hires a skilled "long-term temporary'' worker
when it is looking for a permanent employee with the same skills. (Tr. 25). Olson passed the
required drug test and reported for work at 6:30 am. on Monday, August 27, 2001, at the

1

The Commission did not grant Olson's petition for discretionary review. The case is
currently pending before the United States Court ofAppeals for the Tenth Circuit, Case No. 03-9528.
2

The other witnesses and the parties often referred to Ms. Gilbert by her maiden name,
Chrissi Edwards.
320

Black Thunder Mine. Olson lives east of Newcastle, Wyoming, near the South Dakota border.
It took her about one hour and ten minutes to drive the 73 miles to the mine, which is east of
Wright, Wyoming, along Wyoming Route 450. (Tr. 29).
When Olson arrived at the mine office she was a little early because the shift starts at 7
a.m. Kasper talked to her for a moment while she was waiting. Olson testified that when she
told Kasper that she had worked at the Jacobs Ranch Mine for about 19 years, he seemed a
little surprised.
(Tr. 30). When she was asked why she had left Jacobs Ranch, she told him that ''they kind of
asked me to leave." Id Kasper testified that when he asked Olson why she left, she said that
her leaving Jacobs Ranch was "kind of a mutual agreement." (Tr. 239). Kasper testified that
he did not contact anyone at Jacobs Ranch about Olson. Id. He found her demeanor that
morning to be curt and cold, so he offered her coffee and left her alone until the start of the
shift. Id.
James "Marty'' Martens, the safety director at the mine, had her attend safety training
with five other people who had reported to work for the first time that day. (Tr. 36; Ex. C-1 ).
Some of these trainees were temporary employees and others were new permanent Thunder
Basin employees. (Tr. 32-33). This training consisted oflectures, a review of the company's
safety handbook, and videos. Olson testified that Martens told her that after the trainees took
a tour of the mine, she probably would be assigned to ride with a truck driver in the afternoon
and, "depending on what that driver said," she might get to drive a truck later that day or the
next day. (Tr. 37-38).
The group went on a lengthy tour of the mine in the late morning. Olson sat in the
front seat of the van during the tour and talked to Martens. She was the only trainee who
would be operating heavy equipment in the pit so she asked a lot of questions about the work
site and safety in the pit. (Tr. 41-42). At one point when the van bounced through a rough
spot in the roadway, she asked him if the mine had a blade because the "the roads feel like
downtown Bagdad ten years ago."
(Tr. 43). As they entered the pit where Olson would be working she saw the highwall for the
first time. Olson testified that the highwall was "really tall." (Tr. 44). At that point, Olson
testified that she said:
Gosh, look at that highwall, Marty. Look at the water running
out of it. Do you guys have any major sloughs, do you guys
have any highwall failures?
Id Olson testified that Martens replied that there had been highwall failures at this particular
pit and that a shovel was buried not too long ago. Id. She also testified that Martens told her
that "some of the older hands call this Death Valley." (Tr. 45). Olson testified that she would
not have felt "very comfortable" working near this highwall because the bench on which the
haul trucks travel was narrow and the trucks had to "run right at the toe of this sheer wall."

321

(Tr. 47). Olson did not tell Martens or anyone else at Thunder Basin that she did not want to
work around that highwall.
(Tr. 101-02).
During the final part ofthis tour, Olson switched places with someone at the back of
the van who was getting motion sickness. She sat next to Jim Lewis, who was being hired as
a permanent Thunder Basin employee. Olson started talking to Lewis who told her that he
was on the C crew. Olson did not know what crew she was assigned, so after the tour she
went to the payroll office to find out her crew assignment. She talked to Penny Spidle, the pit
operations clerk, who told her that she was on the A crew. Lewis had suggested that Olson try
to get on the C crew so that they could commute together from Newcastle. (Tr. 55, 198).
According to Olson, she asked Ms. Spidle ifthere were any openings in the C crew because
she knew someone on the C crew who drives by her house on the way to work. (Tr. 58).
Olson testified that she was told that there were no openings for drivers on the C crew. Olson
testified that in response she said, "okay," and then asked if she could have the names of
people on the A crew who live in Newcastle. She was told that the company did not have
such a list. Olson testified that she told Ms. Spidle that "I'll be able to find somebody that I
can car pool with on the A crew." (Tr. 59). Ms. Olson testified that her demeanor was normal
and that she was not rude or demanding. (Tr. 59-60). Olson testified that Spidle had a
sarcastic tone when talking to her.
Ms. Spidle testified that Olson was insistent that she be assigned to the C crew. (Tr.
224). Spidle felt that Olson did not want to be on her assigned crew. (Tr. 225). According to
Spidle, Olson suggested that someone from the C crew be transferred to the A crew so she
could go on the C crew. (Tr. 228-29). Olson denies that she ever made this suggestion. (Tr.
111).
When her lunch break was over, Olson returned to the training room. Nobody else was
there and she looked at the work schedule that she had been given. It showed that the A crew
worked nights that week. 3 Olson went back to Spidle to ask when she should report to work
the next day. Spidle told her that she did not know but "surely they don't want you coming
out on nights." (Tr. 61). Spidle told Olson that she would find out and let her know. Soon
after Olson returned to the training room, Tom Skinner of the safety department came in.
When she asked him the same question, he went to get Frank Meyers, a shifter for the truck
crew.4 Olson told Meyers that she used to drive trucks at Jacobs Ranch. Olson asked Meyers
whether she should report to work for the day shift or night shift the next day. Olson also
asked Meyers, "When am I going to go out and drive?" (Tr. 65). Olson testified that he
responded by saying that Thunder Basin has to "make sure you are trained" and that the
company "can't just take your word for it." (Tr. 65). Meyers asked her what kind of trucks
she had driven at Jacobs Ranch and after she answered, he left to talk to Spidle. A little later

3

The three crews rotate shifts on an established schedule.

4

A "shifter" is a front line supervisor.
322

Skinner returned to the safety room and told her that she should plan on working day shift the
remainder of the week for training. (Tr. 64-65). Olson spent the rest of the shift on August 27
watching safety and truck videos. Olson testified that she was "puzzled" by Skinner's
statement because she thought she would be riding in trucks that afternoon. (Tr. 67). Before
her tour of the pit, Olson had signed MSHA's certificate of training which showed that she
had completed experienced miner training. (Tr. 69; Ex. C-4).
Spidle stated that Olson came back into the payroll office sometime that afternoon and
said that she was finished with her training and was ready to go on a truck. (Tr. 226). Spidle
directed her to Meyers, who happened to be in the office. Spidle overheard Meyers tell Olson
that she had to first complete her training before she could get into a truck and that the trainer
would decide when that would occur. 5 (Tr. 227). Spidle testified that Olson came across as a
"very self-confident, self-assured person." Id.
On Tuesday, August 28, 2001, Olson got into her son's truck to go to work. She
testified that she left for work at about 5:20 a.m. (Tr. 95). She did not take her Tahoe because
it was easier for her husband to get into that vehicle. About five miles from home, before she
traveled through Newcastle, she got a flat tire. (Tr. 71). She jacked up the truck and took off
the flat tire before she discovered that the spare tire on the truck was also flat. Olson testified
that she did not have her cell phone with her so she walked across the countryside to her
house. When she got home, she called Mr. Martens at the Black Thunder Mine. She testified
that she made this call at about 7:45 a.m. (Tr. 76; Ex. C-5). After she explained what had
happened, he transferred her to Mr. Kasper. She told Kasper that it would take her about an
hour and fifteen minutes to get to the mine. Kasper responded that he had already called
Adecco to get a replacement for her. (Tr. 75). Olson responded by saying that she would
make up the time by staying late that day. Olson testified that Kasper then told her "No, the
day is screwed up anyway" and that she ''wasn't really satisfied being on that A crew anyway."
Id. Olson responded that she did not have any problem with the A crew and that she only
asked for the C crew because she knew someone on that crew who lived nearby. Kasper told
her that Adecco was already sending someone else out to drive trucks on the A crew. (Tr. 76,
91).
Kasper testified that Olson called him about the flat tire at about 10:00 a.m. on August
28, not at 7:45 a.m. (Tr. 248). He denied that he talked to Olson any earlier that day. (Tr.
249). He testified that Olson asked if she should come in that day or wait until August 29 to
return to work. (Tr. 248). Kasper told her that he had already requested a replacement from
Adecco. He testified that he had called Adecco at about 9:30 a.m. (Tr. 258). Kasper testified
that he told Olson that she was not happy with her crew assignment and that she was late for

5

At the hearing, witnesses testified about participating in or overhearing conversations. In
several instances, the testimony conflicts as to where these conversations took place or as to who
initiated these conversations. I attribute these conflicts to the fading of memories and I do not draw
any inferences from these conflicts.
323

work. Id. He testified that he has replaced other temporary workers because they failed to
report off, failed to show up for work, and for behavior problems. (Tr. 251, 276).
Spidle testified that on the morning of August 28, Martens came to her and told her
that the temporary employee had not shown up for work that day. (Tr. 228). It is Spidle's
responsibility to "keep the crews up" and to get a replacement if someone is not there. Id.
She called Kasper at about 7:30 a.m. to advise him that the temporary employee did not show
up for work that day. (Tr. 229). She also told Kasper that Olson had tried to change crews on
her first day at work. She told Kasper that "maybe she was unhappy that she didn't get that
crew and didn't come back." Id.
Kasper testified that at about 7 :20 a.m. on August 28, 2001, Martens asked him where
the temporary employee was. (Tr. 244). Kasper replied that he did not know, but that he
would try to find out. When he asked Ms. Spidle about Olson, she replied that she did not
know. Spidle also told Kasper that Olson wanted to change crews and that when she was told
that she had to stay on her assigned crew, "she was very persistent and negative." (Tr. 245).
Kasper talked to Martens again. Martens told Kasper that he felt that Olson had a negative
attitude about her crew assignment and that "she was not going to accept it." (Tr. 245-46).
Kasper also talked to Meyers who told Kasper that Olson "felt that she had all the training she
needed and she wanted to go to work." (Tr. 247). Meyers told Kasper that when he told her
that she had not completed her training, Olson responded by saying that with her 18 years of
experience she did not need any more training. Id. Based on these conversations, Kasper
concluded that Olson "was going to be a problem employee, and that she was not wanting to
accept directions from her supervisor." Id. Kasper testified that he based this conclusion on
the information he obtained from Spidle and Martens concerning her persistent demand that
she be transferred to the C crew and the fact that she did not seem to want to complete the
company's training program. Kasper testified that Martens did not speak to him about
Olson's comments during her mine tour. (Tr. 255). Kasper also testified that he was not
aware that Olson had raised any safety concerns on August 27, 2001, or that she had
previously filed complaints under sections 105(c) and 103 of the Mine Act against Jacobs
Ranch Coal Company. (Tr. 250).
Kasper keeps a record in his computer of all temporary employees who work at the
mine. (Tr. 251-52, 261; Ex. C-6). This exhibit states that Ms. Olson's employment at the
Black Thunder Mine ended on August 28, 2001, because she was "late and expressed a bad
attitude about the crew she was assigned." (Tr. 90-91; Ex. C-6).
A new temporary haul truck driver is typically in classroom training about three days.
(Tr. 237-38, 254, 265). It would be rare for someone to be put into a truck the first day at
work. (Tr. 253). After the classroom training is completed, the trainee rides in a truck with an
experienced driver and then the trainee drives the truck with the experienced driver in the
passenger seat. The trainee is not assigned her own truck until the trainer is comfortable that

324

she can handle the haul truck. (Tr. 238). All training is conducted on the day shift. The A
crew worked the night shift the week of August 27, 2001.
Thunder Basin fills open permanent positions by posting them for ten days. (Tr. 240,
252-53). A temporary employee must bid on the job to be considered for the position.
Thunder Basin often hires temporary employees to fill open positions. (Ex. C-6). Temporary
positions are not for any specific term. On August 27, 2001, Thunder Basin needed a
temporary haul truck driver on the A crew, but there was no opening for a haul truck driver on
the C crew. (Tr. 241).
After Olson was told that she had been replaced at the mine by someone else, she
called Judy Peters of MSHA. Peters is a senior special investigator in Denver. She told Peters
that she believes she was replaced because she complained about the highwall. On
Wednesday, August 29, 2001, Olson had another phone conversation with Peters about the
highwall. During this call, Peters asked her a lot of questions about the condition of the
highwall on August 27. Olson subsequently learned that a portion of the highwall that she
complained about failed on August 29. (Tr. 84; Exs. C-2 & C-3).
Olson had talked to Ms. Peters before August 27, 2001. Olson was familiar with Ms.
Peters because Olson had filed four section 105(c) discrimination complaints against Jacobs
Ranch. Olson's most recent conversation with her occurred after Adecco told Olson about the
Thunder Basin opening. Olson told Peters that she was concerned whether it "was really a
true job offer or if it was just a setup, somebody trying to set me up." (Tr. 109). She was
concerned that she ''would go out there and then have 15, 20 people lie about me.... " Id.
She based her concern on the fact that it has happened in the past, "people lying about me and
making me look like a liar." Id Peters told her to take the position and keep a positive
attitude.

II. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to encourage miners
"to play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are
to be encouraged to be active in matters of safety and health, they must be protected against
any possible discrimination which they might suffer as a result of their participation." S. Rep.
No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History ofthe Federal
Mine Safety andHealth Act of 1977 at 623 (1978). "Whenever protected activity is in any
manner a contributing factor to the retaliatory conduct, a finding of discrimination should be
made." Id. at 624.

325

A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient to support a conclusion that he
engaged in protected activity and suffered adverse action motivated in any part by that activity.
Secretary ofLabor on behalfofPasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2797800 (October 1980), rev 'don other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of
Labor on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April
1981 ); Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine
operator may rebut the prima facie case by showing either that no protected activity occurred
or that the adverse action was in no part motivated by the protected activity. Pasula, 2
FMSHRC at 2799-800. If the mine operator cannot rebut the prima facie case in this manner,
it nevertheless may defend by proving that it was also motivated by the miner's unprotected
activity and would have taken the adverse action for the unprotected activity alone. Pasula at
2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813
F.2d 639, 642 (41h Cir. 1987).

A. Protected Activity
Olson engaged in protected activity on several occasions. On August 8, 1994, she filed
a complaint under section 103(g) of the Mine Act at the Jacobs Ranch Mine. 25 FMSHRC 9.
She also filed four section 105(c) complaints at Jacobs Ranch, one dated October 5, 1994, one
dated May 25, 1995, one dated June 4, 1999, and another dated February 16, 2001. In
addition, Ms. Olson complained or at least commented about safety conditions at the Black
Thunder Mine during her tour on August 27, 2001. In her complaint of discrimination in this
case, Olson merely states "I feel I have been discriminated against because of 103s & 105s in
the past and safety complaints." I construe her complaint to include all of the complaints
discussed above. I find that Olson established that she engaged in protected activity.

B. Adverse action
In determining whether a mine operator's adverse action is motivated by the miner's
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect." Sec '.Y ofLabor on behalf
ofChacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), rev 'd on other
grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence." Id. (citation
omitted). In Chacon, the Commission listed some of the more common circumstantial indicia
of discriminatory intent: (1) knowledge of the protected activity; (2) hostility or animus
toward the protected activity; (3) coincidence in time between the protected activity and the
adverse action; and (4) disparate treatment of the complainant. See also Hicks v. Cobra
Mining, Inc., 13 FMSHRC 523, 530 (April 1991).

326

1. Summary of the Parties' Arguments
Olson contends that after the mine tour; Skinner and Martens went into the mine office
for about 30 minutes and everything changed for her from that point on. Olson argues that
Martens, who was not called to testify, concluded that Olson had complained about safety
conditions too much during the tour. As a consequence, she was not trained by an
experienced truck driver that afternoon but was told to watch videos. Although Thunder
Basin's witnesses stressed the fact that she kept asking to be transferred to the C crew, it was
the fact that she complained about the conditions in the pit that drove Thunder Basin to begin
treating her differently after lunch. She points to the fact that none of the other new
employees watched videos that afternoon and that Martens never came back to see her after
the tour.
Olson characterizes Kasper's concern about her tardiness on August 28 and her request
to change crews as a pretext for firing her for protected activity. Her version of the facts is
supported by her telephone bill which shows that she called the mine at 7:46 a.m. that
morning. (Ex. C-5). Her telephone bill also supports her conversations with Ms. Peters.
Thus, it is clear that Kasper talked to Olson at 7:46 a.m. and then subsequently talked to Ms.
Gilbert at Adecco.
Olson also relies on Ex. C-6 which shows that the mine hired Travis Elliot as a
temporary haul truck driver on September 1, 2001, for the C shift. Mr. Elliot was in that
position for a full year, a position that Olson would have had if she had not complained about
safety.
Thunder Basin argues that Olson was memorable in the minds of the people who met
her that first day at work because of the way she came across. Olson was concerned that she
was being set up and that is the attitude she carried with her to work on August 27. At best
Olson was very aggressive in demanding that she be transferred to the C shift and in insisting
that she did not need any more training. It was rather arrogant and unusual for a temporary
employee to make such demands on her first day of work.
Thunder Basin also maintains that there was no change in the company's attitude
toward Olson in the afternoon of August 27. New employees do not ride in or drive trucks on
the first day of work. Skinner, her trainer, was new at the job, so any uncertainty he might
have displayed was a result of his inexperience, not any hesitation toward Olson as a
temporary haul truck driver. Thunder Basin provides new truck drivers with more extensive
training than MSHA requires.
When Olson talked about the highwall at the mine, Martens' demeanor was not hostile.

In fact, he noted that some employees call the area "Death Valley." When she complained
about the condition of the roadways, Martens merely grinned. There was no showing of
hostility to her comments. In addition, Kasper credibly testified that he did not call the Jacobs
327

Ranch mine when he learned that she had worked there. He had no knowledge of her prior
safety complaints.
There can be no dispute that Olson did not show up for work on August 28. Whether
she called the mine at 7:46 a.m. or 10:00 a.m. is not crucial. Until she called, management
assumed that Olson did not show up because she was dissatisfied with her crew assignment.
Thunder Basin had already told Ms. Gilbert to select another driver when Olson called. There
is nothing in the record to link Olson's safety complaints with management's decision to hire
another temporary driver.

2. Analysis of the Case
The resolution of this case depends entirely on an examination of the evidence and an
analysis of the motivation of management. As stated above, "direct evidence of motivation is
rarely encountered; more typically, the only available evidence is indirect." Chacon, 3
FMSHRC at 2510. I discuss below the key facts upon which I base my conclusion that
Thunder Basin did not discriminate against Hazel Olson.
a. Change in Attitude Toward Olson-August 27. 2001
One of the key elements in Olson' s case is that management's attitude about her
changed in the afternoon of August 27 once the company learned about her protected
activities. Olson maintains that I should infer, from indirect or circumstantial evidence, that
Thunder Basin's hostile reaction to her safety activities was a contributing factor in her
termination on August 28. The safety activities include Olson's complaints about the
conditions in the mine during her tour and her previous safety complaints at Jacobs Ranch. A
change in the company's treatment of Ms. Olson that afternoon would help support her
contention that her termination was motivated, at least in part, by her protected activity.
Olson testified that Martens indicated during her training on the morning of August 17
that she would probably be going out in a truck that first day of work. Olson testified that he
told the man who would be delivering propane to the mine that after the tour ''you'll probably
be done for the day." (Tr. 37). She testified that Martens told the woman who was being
hired to work in the lab that she would be done after the mine tour. (Tr. 37). Olson testified
that Martens then told her: "after lunch ... I would probably be put on a truck with ...
another driver out there and I would ride around with that driver... ." Id During the tour,
Olson testified that she kept asking questions like, "how am I going to know which pit to go
to?" and "how am _I going to know where [the] crushers are at?" (Tr. 40). Olson testified that
in response, Martens said that he would show her where everything is during the tour.
Consequently, Olson had a strong impression that she would be in a truck later that very
afternoon.

328

During the tour, Olson made numerous comments about the conditions in the mine. In
addition to her comments about the highwall and the roadways, she asked questions about
safety procedures. During her morning training session she was taught to obey all traffic
signals at the mine. During the mine tour, Martens told her that ifthe project manager just
sees you waiting at a red light, "he'll motion for you to come on through even when ... the
light's red." (Tr. 42). She raised concerns about this practice to Martens. At another point
on the tour, Olson saw a sign that prohibited entry to an area near a dragline. She raised
concerns when the project manager's vehicle ignored the sign. (Tr. 54).
Olson testified that when the tour concluded, Martens and Skinner went into the mine
office. Olson maintains that from that point on, she was treated differently than she was
treated before the tour. (Tr. 66). Olson said that she was "really puzzled" when Skinner told
her that she would be in training all week. (Tr. 67). Olson testified as follows:
[B]efore we went on the tour ... it was like Marty [Martens] ...
had the day planned ... like they had a place for me. After the
pit tour and after lunch it was like they didn't know what to do
with me.
Id. Olson watched truck videos with Skinner for the remainder of her shift. She contends that
this change was a direct result of the safety concerns she raised with Martens. Olson also
believes that someone may have called the Jacobs Ranch Mine and learned that she was a
safety advocate.

Olson's belief that the company changed its attitude toward her that afternoon is
somewhat irrational because it is based solely on her mistaken belief that Martens virtually
guaranteed that she would be in a truck that day. Martens did not testify at the hearing, but
Olson stated that Martens told her that she would "probably" be able to ride in a truck that
afternoon. 6 There are many reasons why she may not have ridden in a truck that afternoon.
There may have been a scheduling problem, for example. The company may have planned to
let her ride in a truck as soon as there was a qualified truck-trainer available. Kasper testified
that a new truck driver is usually given at least three days of classroom training before she is
taken out in a truck. The scheduling of classroom training an.d on-the-job training by a truck
driver may vary depending on the resources available. Skinner was the "operations trainer"
who provides classroom training to new miners like Olson. (Tr. 242-43). He was a new

6

Olson argues that Martens was "conspicuously absent" at the hearing. (Tr. 282). I draw
no.inference from the fact that Thunder Basin did not call him to testify. See Eagle Energy, Inc., 23
FMSHRC 1107, 1119-20 (Oct. 2001). Both parties listed him as a witness in their prehearing
submissions. He apparently still works at the mine, but he is no longer in the safety department.
Although his testimony may have been helpful, I am crediting Olson's testimony as to what he told
her.
329

employee in the safety department and may have been proceeding at a slower pace than
Martens anticipated. In addition, Meyers told Olson that the company has to make sure that
she is trained so it cannot take her ''word for it." (Tr. 65). Given that the haul trucks that she
would be driving are extremely large, off-road vehicles, the company's caution is self-evident.
Olson was being paid whether she rode in a haul truck or continued her training.
Olson also testified that Martens joked with her about her comments. Martens told her
that experienced miners often call the area near the highwall "Death Valley." When she
complained about the condition of the roadways, he grinned at her. (Tr. 43-44). There is no
evidence that Martens was hostile or angry about her comments.
Although it is possible that Martens discussed Olson's safety activities with upper
management during the lunch break, nothing in the record suggests that she was required to
watch safety and training videos rather than ride in a truck because of her protected activities.
Watching videos about work-related matters cannot be considered to be an adverse action.
There is no indication that this training was a preliminary step towards dismissal or other
discipline.
I conclude that Olson failed to establish that she was treated differently by mine
management after she returned from the mine tour. She was the only person coming on board
that week, as either a temporary worker or permanent employee, who would be operating
heavy equipment in the pit. As a consequence, her training was more extensive than the other
five individuals.7 Although Olson believed that she was ready to drive a truck, the company
wanted her to continue her training. I cannot infer that this alleged delay in allowing Olson to
ride in a truck reflected a change in the company's attitude toward Olson or that her protected
activities contributed to this alleged delay.
b. Failure to Report to Work on Time -August 28. 2001
There is no dispute that Olson did not show up for work on time at the Thunder Basin
Mine on August 28, 2001. Olson claimed that she called the mine as quickly as she could.
Her telephone records show that a call was made to the mine from her house at 7:46 a.m. that
morning, about 45 minutes after the start of her shift. Kasper, who is now retired, testified
that he remembers getting a call from her at about 10:00 a.m. These events occurred about 20
months before the hearing in this case. Memories about precise times are more likely to fade
than memories of the sequence of events or the personalities of the people involved. I credit
the testimony of Ms. Olson that she called the mine at about 7:45 a.m. This time is consistent

7

Lewis, who attended the morning training session and tour but did not watch videos in the
afternoon, was hired by Thunder Basin as a blaster. He had worked for Adecco as a blaster at the
mine for some time and was continuing the same work as a full-time employee. Thus, Thunder
Basin was fully familiar with his experience and qualifications for the job.
330

with her phone bill and with her rendition of the events that morning. She testified that she
left her home at about 5:20 a.m., drove about five miles, and then had a flat. She jacked up
the truck before she realized that the spare was also flat. She walked home and called the
mine soon thereafter. Assuming that these events occurred as she described them, she would
have arrived back home long before 10:00 a.m.
Although I credit Olson's testimony as to the time of the call, I credit Kasper that he
called Gilbert to get a replacement before Olson called the mine that morning. Gilbert could
not remember when Kasper called her to obtain another haul truck driver, but he may have
called early. (Tr. 165). She remembers that Kasper told her that Olson had not shown up for
work that morning. Id. Olson testified that Kasper told her during her call that he had already
talked to Gilbert about getting a new driver. (Tr. 75). Kasper talked to a number of people at
the mine before he called Gilbert that morning. He talked to Spidle who told him that Olson
had tried to change crews the first day of work and that she was unhappy that she was not
reassigned to the C crew. Spidle also told Kasper that Olson was rather persistent in her
request for a crew change and that her attitude was negative. Kasper testified that Martens
told him that Olson was unhappy with her crew assignment and believed that she might not
accept her assignment. Based on these conversations, Kasper concluded that Olson would be
a difficult person to supervise. Because Olson had not reported to work by 7:00 a.m., he
called Adecco to obtain another haul truck driver.
Kasper testified that he was never told that Olson had made comments about safety in
the pit during her tour. He also stated that he did not know that she had filed safety and
discrimination complaints when she worked for Jacobs Ranch. I credit his testimony in this
respect.
I conclude that Thunder Basin's termination of Olson was not motivated in any part by
her protected activities. I reach this conclusion based on the above analysis, after
consideration of the factors set forth in Chacon. It is clear that Thunder Basin had knowledge
of the safety concerns Olson raised on the tour of the pit. There is no evidence that it had
knowledge of her previous MSHA complaints. There is no evidence that Thunder Basin
demonstrated any hostility or animus toward her protected activity. As stated above, I find
that Olson was not treated any differently on the afternoon of August 27 than she had been
before the pit tour. There was a coincidence in time between the protected activity and the
adverse action. Olson did not establish disparate treatment. Olson had only worked at the
mine one day, expressed dissatisfaction with her crew assignment, and did not report to work
on time the following day.
c. Mixed Motive Analysis
Because several Thunder Basin employees discussed their negative impression of
Olson with Kasper before he called Adecco to get a new truck driver, it is possible that her
safety complaints contributed to their negative impression and that Kasper, therefore,
331

unwittingly considered her protected activity. As a consequence, I have chosen to also apply a
mixed motive analysis to the facts in this case. If a mine operator cannot establish that the
protected activity played no part in its decision to terminate the complainant, it may
nevertheless defend by proving that (1) it was also motivated by the miner's unprotected
activities, and (2) that it would have taken the adverse action in any event for the unprotected
activities alone. In a mixed-motive case:
It is not sufficient for the employer to show that the miner
deserved to have been fired for engaging in unprotected activity;
if the unprotected conduct did not originally concern the
employer enough to have resulted in the same adverse action,
we will not consider it. The employer must show that he did in
fact consider the employee deserving of discipline for engaging
in unprotected activity alone and that he would have disciplined
him in any event.
Pasula, 2 FMSHRC at 2800 (emphasis in original). An operator can try to establish this
defense "by showing, for example, past discipline consistent with that meted out to the alleged
discriminatee, the miner's unsatisfactory past work record, prior warnings to the miner, or
personnel rules or practices forbidding the conduct in question." Bradley v. Belva Coal Co., 4
FMSHRC 982, 993 (June 1982).

Kasper, acting for Thunder Basin, considered two events that were not protected when
he decided to replace Olson with a different temporary haul truck driver. First and foremost
was the fact that she did not show up at work on August 28, 2001, her second day at the job.
Olson called the mine at 7:46 a.m. that morning to advise management that she would not be
arriving at the mine until about 9:00 a.m. because she had a flat tire on the way to work. As
stated above, I find that Kasper had already called Ms. Gilbert to get a new truck driver when
Olson called the mine.

In addition, Olson expressed dissatisfaction with her crew assignment on the frrst day
at work. Although Olson testified that she was simply making inquiries, Spidle interpreted her
actions differently. (Tr. 225). Spidle testified that Olson told her that she did not want to be
on the C crew. Id. By the end of the day, Spidle had a mostly "negative impression" of Olson
because of her persistent requests. (Tr. 225-26). Spidle said that temporary employees are
usually less demanding on their first day at work. When Spidle learned that Olson did not
report for work on August 28, she told Kasper that Olson might not have returned to the mine
because she was unhappy with her crew assignment. (Tr. 229). Kasper considered Spidle's
assessment when he decided to call Adecco for a new driver. Thus, when Kasper called
Adecco, he believed that Olson might have already quit. Olson's persistent request that she be
assigned to a different crew is not protected.

332

Olson argues that Kasper's decision to terminate Olson because she was late one
morning violated the company's personnel policies. Olson maintains that the company was
looking for ·any excuse to get rid of her because of her protected activity. In making this
argument, Olson relies on company practices as evidenced by the employee handbook. (Ex.
C-7). A Thunder Basin employee is required to call in at least an hour in advance if she is
going to be late for work. (Tr. 204-05). If a company employee is late for work without
providing any advance notice, she is given a "step." Id Although the details of the
company's progressive discipline policy are not in the record, it is clear that a nonprobationary Thunder Basin employee without any prior disciplinary problems would not
ordinarily be terminated for arriving late to work because of a flat tire so long as she called the
mine as quickly as she could. Olson, however, was not a Thunder Basin employee. Thunder
Basin did not violate its employment policies and practices when it replaced Olson with
another Adecco driver because these practices and policies do not apply to temporary
employees.8
Two additional factors that are often considered by the Commission when analyzing
mixed-motive cases are a miner's unsatisfactory past work record and prior warnings to the
miner. Olson obviously did not have a "work record" at Thunder Basin because she had only
worked one day. She had not been given any "prior warnings." I find that Kasper would have
taken the same steps with respect to Ms. Olson on August 28 if she had not engaged in any
protected activity.
In conclusion, I find that Olson engaged in protected activity but that Thunder Basin·
terminated her from her temporary employment with Adecco solely for her unprotected
activities. In addition, I find that, if Thunder Basin did consider her protected activities when
it let her go, it was also motivated by her unprotected activities and it would have terminated
her for the unprotected activities alone.

III. ORDER
For the reasons set forth above, the discrimination complaint filed by Hazel Olson
against Arch Mineral Company's Thunder Basin Coal Company, LLC, under section 105(c) of
the Mine Act is DISMISSED.

8

I reject Olson's arguments regarding her belief that Travis Elliot was hired to replace her
because her belief is too speculative and it is not supported by .credible facts.

333

Distribution:
Margaret A. Miller, Esq., 325 Canyon Boulevard, Boulder, CO 80303-4922 (Certified Mail)
Laura E. Beverage, Esq., Jackson Kelly, 1099 181h Street, Suite 2150, Denver, CO 80202-1958
(Certified Mail)

RWM

334

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

June 27, 2003
VANDALIA RESOURCES, INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 2002-145-R
Order No. 4642757; 8/7/2002

V.

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

Alloy/4 Mile Surface Mine
Mine ID 46-07537

DECISION
Appearances: David J. Hardy, Esq., Spilman Thomas & Battle, PLLC, Charleston,
West Virginia, for Contestant;
Francine A. Serafin, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Notice of Contest brought by Vandalia Resources, Inc.,
against the Secretary of Labor, acting through her Mine Safety and Health Administration
(MSHA), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815. The company challenges the issuance to it of Order No. 4642757, an "imminent danger"
order,. A hearing was held in Charleston, West Virginia. For the reasons set forth below, I
vacate the order and dismiss the case.

Backeround
Vandalia Resources operates a surface coal mine in Fayette County, West Virginia,
known as the Alloy/Four Mile Surface Mine. On August 7, 2002, MSHA Inspector Sherman
Slaughter and his supervisor, Harold Owens, went to the mine to observe a highwall operation.
The inspectors had to travel through the surface mine to get to the highwall. They completed
their examination of the highwall and left the area in their car at 3 :25 p.m.
While the inspectors were driving back across the mine property, they passed an area
where reclamation work was being performed. They pulled off of the road to observe the
operation. Inspector Slaughter got out of the car to get a better look. He saw a bulldozer that
335

appeared to be sliding on the slope. The inspector then reached into his car for his camera and
told Owens to "look at that dozer sliding on the slope." (Tr. 21.) The two inspectors talked
about the situation a minute and then Slaughter took a picture of the scene. By the time he took
the picture, the bulldozer had reached the bottom of the slope and was heading toward the up
ramp.
Slaughter got back into the car and began driving around the access road through the
hollow to get to the other side to stop the work. As they arrived at the reclamation site, Slaughter
saw a second bulldozer start down the slope, slide "sideways some," and then straighten out and
proceed the rest of the way down the hill. (Tr. 21.) The inspectors got out of car and the two
bulldozer operators came over to them.
Slaughter had decided to issue an "imminent danger" order when he observed the first
bulldozer. When the operators got to the inspectors, Slaughter told one of the operators, Mikel
Neal, that he was sliding coming down the hill and did not have full control of the bulldozer.
Neal disagreed. He then told the other operator, Edward Hamon, the same thing. Hamon also
did not agree with Slaughter's assessment. Slaughter then told them he was issuing an
"imminent danger" order and that they could not continue to work that way.
The "imminent danger" order, Order No. 4642757, was issued at 3:35 p.m. It alleges a
violation of section 107(a) of the Act, 30 U.S.C. § 817(a), because:
Two bull bulldozers were observed pushing material down
a steep reclaim slope (approx. 1.56/1) in pit 180 of the mine. One
bulldozer, a DION with a ripper, would lose traction and slide
straight down the slope on areas of the slope and the other
bulldozer, a D 1OR bobtail, would lose traction and slide sideways
on areas of the slope. The bulldozer operators did not have full
control of the machines in that they would slide as they worked the
slope. It was determined that the type of bulldozers and the slope
conditions (steep and loose materials) made it reasonable to expect
the bulldozers to slide out of control (on the steep slope) and result
in serious injury. An imminent danger exists.
(Govt. Ex. 4.) No citation or order was issued for a violation of any of the Secretary's mandatory
safety or health standards.

Findings of Fact and Conclusions of Law
Section 107(a) of the Act provides that:

If, upon any inspection or investigation of a coal or other
mine which is subject to this Act, an authorized representative of
336

the Secretary finds that an imminent danger exists, such
representative shall determine the extent of the area of such mine
throughout which the danger exists, and issue an order requiring
the operator of such mine to cause all persons ... to be withdrawn
from, and to be prohibited from entering, such area until an
authorized representative ... determines that such imminent
danger and the conditions or practices which caused such imminent
danger no longer exist.
Section 3(j) of the Act, 30 U.S.C. § 802(j), defines an "imminent danger" as "the existence of
any condition or practice in a coal or other mine which could reasonably be expected to cause
death or serious physical harm before such condition or practice can be abated."

In interpreting this definition, the Commission has stated that "an imminent danger exists
when the condition or practice observed could reasonably be expected to cause death or serious
physical harm to a miner if normal mining operations were permitted to proceed in the area
before the dangerous condition is eliminated." Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (November 1989), quoting Eastern Associated Coal Corp. v. Interior Bd. OfMine
Op. App., 491F.2d277, 278 (4th Cir. 1974) (emphasis omitted) (R&P). The Commission has
elaborated that "[t]o support a finding of imminent danger, the inspector must find that the
hazardous condition has a reasonable potential to cause death or serious injury within a short
period of time." Utah Power & Light Co., 13 FMSHRC 1617, 1622 (October 1991).
An inspector's finding of an imminent danger must be supported "unless there is
evidence that he has abused his discretion or authority." R&P, 11 FMSHRC at 2164, quoting
Old Ben Coal Corp. v. Interior Bd. OfMine Op. App., 523 F.2d 25, 31 (7th Cir. 1975) (emphasis
omitted). "An inspector abuses his discretion, making a decision that is not in accordance with
law, ifhe orders the immediate withdrawal of miners in circumstances where there is not an
imminent threat to safety." Blue Bayou Sand and Gravel, Inc., 18 FMSHRC 853, 858-59 (June
1996) (citation omitted).

In determining whether he has abused his discretion, an inspector "is granted wide
discretion because he must act quickly to remove miners from a situation he believes is
hazardous." Id. at 859. In assessing an inspector's exercise of his discretion, the focus is on
"whether the inspector made a reasonable investigation of the facts, under the circumstances, and
whether the facts known to him, or reasonably available to him, supported the issuance of the
imminent danger order." Wyoming Fuel Co., 14 FMSHRC 1282, 1292 {August 1992).
Based on the evidence in this case, I am constrained to conclude that the inspectors did
not make a reasonable investigation of the facts, that no imminent danger existed and, thus, that
they abused their discretion. With regard to their investigation, the inspectors were initially too
far away from the bulldozers to accurately observe their operation, did not observe either
bulldozer make a complete run down the slope and did not discuss the operations with the

337

bulldozer operators or their foreman. Furthermore, too little time elapsed for the inspectors to
make a reasonable investigation of the facts. Indeed, a reasonable investigation would have
revealed that there was no imminent danger.
The inspectors were at least 200 yards from the slope when they observed the bulldozer
from their car. (Tr. 265.) Actually, looking at the picture taken by Inspector Slaughter, (Govt.
Ex. 1), it appears that 200 yards is a conservative estimate. From this distance, Inspector
Slaughter concluded that Ramon's bulldozer was sliding straight down the hill because "[t]he
way the sun was hitting the tracks, I could see the grouser (phonetic) of the cleats, the tracks
themselves. I could tell that they weren' t moving, they were stationary." (Tr. 26-27.)
Assuming that he could see that well, the inspector still could not observe the slope of the
hill, the actions of the operator, the type of material the bulldozer was operating in or precisely
how the bulldozer was performing. Yet based on this one observation, Inspector Slaughter
decided to issue an imminent danger order. As he said, "When I seen [sic] the first bulldozer,
saw him sliding, I knew that that was [im]minent then .... As we were going around, I was
talking to my supervisor and I told him we'd have to issue an order for this, we have to get them
to stop." (Tr. 30-31.)
Moreover, at the time Inspector Slaughter made his decision, he had only seen one
bulldozer come part way down the slope. The first bulldozer was already coming down the slope
when he first observed it and it is clear from the picture, which shows the second bulldozer going
across the top of the slope, that the second bulldozer had not yet started down the slope when the
inspectors began driving around the access road and through the hollow to get to the slope.
Either while they were driving or right after they arrived, the inspectors saw the second bulldozer
slide "sideways some" and then straighten back up as it came down the slope. (Tr. 21.)
However, it appears that rather than sliding sideways, the bulldozer actually "fishtailed" to the
left. 1 Nevertheless, even if Inspector Slaughter had not decided to issue an imminent danger
order until after observing the second bulldozer, the issuance of the order would have been
premature.

1

Slaughter would not use the term "fishtail," but testified as follows on crossexamination:
Q. What he told me was that - and he'll testify here today is that
it fishtailed a little to the left, and then he compensated and
straightened up; is that what you saw?
A. I saw him slide to the left and straighten it up. That's right.

338

It would have been premature because when the inspectors arrived at the slope, they did
not discuss the situation with the inspectors. Instead, Inspector Slaughter confronted the
operators with his conclusions that they were "sliding coming down the slope" and "you don't
have full control of your bulldozer." (Tr. 31-32.) When the operators stated that, even though
the bulldozer may been sliding, they still had full control, the inspector did not pursue the matter
further, but announced that he was issuing an imminent danger order.

Again, had the inspector not already decided to issue the order, he still had not conducted
a sufficient investigation at this point. He did not know how much experience each operator had
operating a bulldozer, the mechanical condition of the bulldozers, how long they had been
operating on the slope, what problems, if any, they had experienced while operating on the slope,
or the basis for their claims that they believed themselves to be in control of the bulldozers. In
addition, no discussion was had with the foreman who directed the grooming of the slope.2
Ultimately, I find it significant on the issue of whether the inspectors made a reasonable
investigation of the facts, that only ten minutes elapsed from the time the inspectors completed
their inspection of the highwall until they issued the imminent danger order. (Tr. 58.) In that
time, the inspectors left the highwall pit area, drove for some time until they observed the
reclaiming operation [Inspector Slaughter would not estimate how long that took (Tr. 57)],
stopped the car, got out of the car, observed the first bulldozer, had a discussion for "a
minute"with each other, got a camera out of the car, took a picture, got back in the car, drove to
the slope area, got out of the car, talked to the operators and issued the citation. While this
certainly was enough time to indicate to the inspectors that the situation needed further
investigation, it was not enough time to complete the investigation.

If instead of issuing an imminent danger order, the inspectors had conducted a more
thorough investigation, they may well have concluded, as I do, that an imminent danger did not
exist. Prior to becoming authorized representatives of the Secretary, Inspector Slaughter had
only nine months experience as a surface miner and Inspector Owens had none. (Tr. 54, 121.)
In addition, neither Inspector Slaughter nor Inspector Owens had ever operated the types of
bulldozers involved in the reclaiming project, although Inspector Slaughter had apparently
operated some types of bulldozers during his short surface mining career.
On the other hand, Hamon has 21 years experience as a surface miner and had been
operating bulldozers for five years. (Tr. 140-41.) Neal has been a surface miner for 25 years,
almost all of it operating bulldozers. (Tr. 187.) Both were considered to be skilled operators and
Neal was the most experienced reclamation employee the company had. (Tr. 217, 255.)
Additionally, Harold Arbaugh, the foreman, had almost 30 years experience as a surface miner,
24 years of it as a ·certified mine foreman, and has operated the types of bulldozers at issue here.
(Tr. 215.)

2

Inspector Owens testified: "We discussed the situation with the equipment operators
and the mine foreman who came up there later after we issued the order." (Tr. 112.)
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Inspector Slaughter testified that he believed the situation involved an imminent danger
because: "When I seen [sic] these bulldozers slide, I knew that they could hit a rock and if they
hit a rock ... it could cause the bulldozer to go sideways and if it did, it could roll off the
embankment when it's steep. It won't just roll-it will roll all the way to the bottom and I
suspected it would be a fatal injury." (Tr. 46.) None of the company's witnesses disagreed with
the inspector's assertion that if a bulldozer got completely sideways on the slope, there was a
danger that it could roll over. They did disagree, however, that that was a danger in their work
reclaiming the slope.
Hamon testified that the work he was performing was routine, that he felt safe, that he
had operated on steeper slopes, that in the six hours he had been working he had encountered
only one rock, that he had control of the bulldozer at all times, that he never felt that he was in
danger of a rollover, and that if had felt that he was not safe, he would have stopped working.
(Tr. 143, 145, 147-48, 151-53.) Neal testified that he had been up and down the site between 40
and 50 times with no problems before the inspectors arrived, that he had operated on steeper
slopes, that he had rolled a bulldozer once before, knew how dangerous it was, but at no time did
he feel in danger of a rollover or that the work was unsafe and that he felt in control of the
bulldozer at all times. (Tr. 194, 196-97, 208-09, 212.) Arbaugh testified that the slope was not
steep enough for the bulldozers to tum sideways and rollover. (Tr. 231.)
Neal and Arbaugh also testified that it is not unusual for bulldozers to slide on occasion,
but that does not mean that the operator cannot control it. (Tr. 194, 226.) Hamon and Neal
stated that if a bulldozer does start to slide there are a number of ways to stop it, among them
cross-steering, using the blade as a brake or using a combination of the blade and the brakes. (Tr.
156, 181, 195, 203.)
Lastly, the slope of the hill was not as steep as the inspectors believed it to be. The
inspectors measured the slope with an Abney level and determined that it was 1.56: l, or a 64
percent grade. However, the company had the slope surveyed by its engineers, who then drew a
profile of the slope. (Cont. Ex. 1.) It shows that while one section of the slope was 1.56:1, it
varied from 1.26:1 (79 percent grade) at the very top to 2.21 :1 (45 percent grade) and that
average of the slope was 1.68: 1 (60 percent grade).
In determining that there was not an imminent danger, I accept the testimony of the
experienced operators and foreman over the conjecture of the inspectors. Their testimony is
bolstered by the evidence that when the company determines that a slope is too steep for its
employees to operate on, it hires specialists to reclaim it. (Tr. 250-51, 277.) This demonstrates
that the company takes the slope into consideration before assigning employees to work on it.
Conclusion
The inspectors did not conduct of reasonable investigation of the facts and circumstances
in this case. Instead of taking the time to observe the operation close at hand to see how the
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bulldozers were actually operating, and interviewing the operators, they chose to issue an
imminent danger order based on a distant view of one bulldozer coming down the slope. In fact,
had the situation been further investigated, the conclusion that there was no imminent danger
would have been reached. Consequently, I conclude that the inspectors abused their discretion in
issuing the imminent danger order in this case.

Order
Accordingly, it is ORDERED that Order No. 4642757 is VACATED and this
proceeding is DISMISSED.

1r~~
Administrative Law Judge

Distribution: (Certified Mail)
David J. Hardy, Esq., Spilman Thomas & Battle, PLLC, Spilman Center,
300 Kanawha Boulevard, East, P.O. Box 273, Charleston, WV 25321
Francine A. Serafin, Esq., U.S. Department of Labor,
1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209

/hs

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342 --h U.S. GOVERNMENT PRINTING OFFICE: 2003 496-533185705