JANUARY AND FEBRUARY 2006

COMMISSION DECISIONS AND ORDERS
01-17-2006 Marfork Coal Company, Inc.
01-23-2006 H.B. Mellott Estate, Inc.
02-07-2006 R. J. Cincotta Company, Inc.
02-23-2006 Southern Nevada Paving
02-27-2006 Williams & Sons Slate & Tile, Inc.
02-27-2006 IO Coal Company, Inc.

WEVA 2006-63
WEVA 2006-70-R
YORK 2005-116-M
WEST 2006-100-M
PENN 2006-75-M
WEVA 2006-86

Pg. 1
Pg. 5
Pg. 7
Pg. 10
Pg. 13
Pg. 17

WEST 2004-182-RM
WEST 2004-492-D
CENT 2004-212

Pg. 21
Pg. 23
Pg. 35

SE 2005-239-D
WEST 2005-178-M
WEST 2005-288-DM
CENT 2005-24-M

Pg. 48
Pg. 50
Pg. (j4
Pg. 66

WEVA 2006-22
YORK 2005-116-M

Pg. 82
Pg. 85

ADMINISTRATIVE LAW JUDGE DECISIONS

01-10-2006 National Cement Co. Of California, Inc.
01-20-2006 Floyd Dowlin, ill v. Western Energy Co.
0 1-24-2006 San Juan Coal Company
01-26-2006 Sec. Labor o/b/o David Bagley, et al. v.
Jim Walter Resources, Inc.
01-31-2006 FMC Corporation
02-08-2006 Xavier F . Gonzalez v. Rinker Materials Corp.
02-24-2006 Weirich Brothers Inc.

ADMINISTRATIVE LAW JUDGE ORDERS
02-28-2006 Black Hawk Mining
02-28-2006 R. J. Cincotta Company, Inc.

i

•. ·

'.

JANUARY AND FEBRUARY 2006

Review was granted in the following cases during the months of January and Februazy:
Secretary of Labor, MSHA v. Hanson Aggregates New York, Inc., Docket No. YORK 2005-22-M.
(Judge Hodgdon, November 21, 2005)
Secretary of Labor, MSHA v. Speed Mining, Inc., Docket Nos. WEVA 2005-20-R, etc.
(Judge Weisberger, December 2, 2005)

Review was denied in the following cases during the months of January and February:
Crimson Stone v. Secretary of Labor, MSHA, Docket No. SE 2005-325-RM. (Judge Melick,
December 30, 2005)
National Cement of California v. Secretary of Labor, MSHA and Tejon Ranchcorp., Docket No.
WEST 2004-182-RM. (Judge Feldman, January 10, 2006)

ii

•I

• •,,t ' •

,: 1

I

COMMISSION ORDERS

,.·

FEDERAL MINE SAFETY·AND HEALTH REVIEW COMMISSION
601-NEW JERSEY AVENUE.- NW
SUITE9500
WASHINGTON, DC 20001

January 17, 2006
SECRETARY OF LABOR, ·
MINE SAFETY AND ·HEALTH
ADMINISTRATION (MSHA)
. Docket No. WEVA 2006-63
A.C. No. 46-08551-62061

V.

MARFORK COAL COMPANY, INC. .

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2000) ("Mine Act"). On December 22, 2005, the Commission received from
Marfork Coal Company, Inc. ("Marfork") a motion1 made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On July 14, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Marfork a proposed penalty assessment that included a proposed penalty for
a citation issued to the company by MSHA on June 6, 2005, Citation No. 7242070. Mot. at 1.
Marfork states in its motion that although the company's safety director indicated on the
assessment form the company's intention to contest the penalty proposed for Citation No.
1

Included with Marfork' s motion is a copy of the proposed penalty assessment and
underlying citation at issue, and an unswom statement by Jonah Bowles, Marfork' s Safety
Director.
28FMSHRC l

llie

7242070 and 'g ave
form tb the company:'·s administrative staff for mailing,·"through mistake
and inadvertence, Marfork failed to mail in its co~test.'! Id. and Statement of J. Bowles, Safety
Director. In a response to Marfork's motion, ~e. Secretary of Labor states that she requires
additional information before she can expr~s her position on the operator' s motion. Sec'y Resp.
at 1-2.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final·Commission orders under section 105(a). "Jim
Walter Res., Inc. , 15 FMSHRC 782, 786-89(May1993) {"JWR"). In evaluating;requests fo
reopen final section 105(a) orders, the Commission has found guidance in RU1e-60{b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of.the Comniission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed that defaultis a · .
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc;, 17 FMSHRC 1529, .1530 {Sept. 1995).

28FMSHRC2

Having reviewed Marfork's motion, in the interests ofjustice, we remand this matter to.
the Chief Administrative Law Judge for a determination of whether good cause exists for
Marfork' s failure to timely contest the penalty proposal and whether relief from the final order·.
should be granted. If it is determined that such relief is appropriate, this case:sball proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~~ .£\--,~ .

Mi~

28FMSHRC3

)

Distribution

M.' Shane Harvey, Esq.
Massey Coal Services, hie.
315 1ot11 Sfreet ·
Charleston, WV 25304
W. Christian Schumann, Esq.
Office of the Solicitor · .
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor·w est
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review C.o~ission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. ·20001-2021 ·

. ·,': ..
•'

· · ::.

:

1·

2RFMSHRC4

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

January 23, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2006-70-M
A.C. No. 46.:.08972-74689

v.
H.B. MELLOTT ESTATE, INC.
:

ORDER

·. ....

"· ·

This matter arises under the Federal Mine Safety and Health Actof 197.7, 30 U.S.C. ..
§ 801 et seq. (2000) (''Mine Act"). On January 10, 2006, the Commission received from H.B.
Mellott Estate, Inc. (''Mellott'') a motion made by counsel to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On January 12, 2006, Mellott filed a Withdrawal of Motion to Reopen Penalty
Assessment in which the company requested that it be allowed to withdraw its motion to reopen.
In support of this request, Mellott states that the Department of Labor's Mine Safety and Health
Ad.ministration advised Mellott that the "assessment matter'' that was the subject ofMellott's
January 10 motion was in fact "still open." Mot. at 1. Mellott states that it subsequently filed a
contest of the penalty at issue on January 11, 2006. Id.

In light of the foregoing, the Commission grants Mellott's request to withdraw its motion
to reopen. 29 C.F.R. § 2700.11. Accordingly, this proceeding is dismissed.
For the Commission:

28FMSHRC5

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C. ,
4 740 Corridor Place, Suite D
Beltsville, MD 20705

. ... . . .

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department ofLabor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247

.. .

'

Myra James, Chief
Office of Civil Penalty Compliance
Mine Safety & Health Administration
U.S. Department of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA.22209-3939

..

28FMSHRC6

.,

..··

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY.A VENUE; NW .

SUITE9500 ·
WASHINGTON, DC 20001 ·

Febmary 6,.2006
SECRETARYOf LABOR,

MINE.SAFEIT AND HEALTH
ADMJNISTRATION (MSHA)
Docket No. YORK 2005-116-M
A.C. No. 19:.01114.;56147

v.
R.J. CINCOtTA COMPANY, INC

• ;

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION: .
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 18, 2005, Chief Administrative Law Judge Robert
J. Lesnick issued a show cau~e order to R.J. Cincotta Company, Inc. ("Cincotta'') stating that it
had failed to file an answer to a ,petition for penalty assessment sent to it by the Secretary of
Labor on July 6;;200.5, and that Cinco~a·would be found in default if it did not file an answer or
show good cause for noh:loing.so ··Within 30 .days of the order. On November 2, 2005, Chief
Judge Lesnick issued an order fi.ndirig that Cincotta had failed to respond to the show cause order
and entering a judgment by default for the Secretary of Labor.
On January 17,-2006, the·C-Ominission received from Cincotta a letter stating that the
company never received the order of default. The letter also states ''we never heard back for [sic]
an order to respondent to ·s how cause" (indicating that the company may be confused as to its
status as the respondent in these proceedings). Finally, the letter states that Cincotta ''would still
like to contest this [penalty].,. The Secretary states that she does not oppose Cincotta' s motion.
The judge's jurisdiction in this matter terminated when his decision was issued on
November 2, 2005. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from ajudge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance,
it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). The judge's order
became a final decision of the Commission on December 12, 2005.
28FMSHRC7

·.··

'

In evaluating requests to reopen final.orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on .the basis of inadvertence or mistake. See 29 ·
C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the
Federal Rules of Civil Procedure"); Jim Walter Resources, Inc., 15 FMSHRC 782, 787 (May
1993). We have also observed that default is a harsh remedy and that, if the defaulting party can
make a showing of good cause for a failure to timely respond, the case may be r~op_ened and ..
appropriate proceedings on the merits permitted. See Coal Prep. ,Servs.,.Jnc.,' 17.FM~aRC 1529,
1530 (Sept. 1995).
.
.
. ..
.

.Having reVi~wed. Cincotta' s motion, in the interests ofjustice, we hereby ~and this
matter to the Chief Administrative Law Judge for a determination of whether good cause exists
to excuse Cinco~a's failure to respond to the show cause order, and; for fi¥ther.proceedings as
appropriate.
·
· . ·
··

.... ·

: . :" ·.

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28FMSHR.C ·8

.

Distribution

..

Richard J. Cincotta
R.J. Cincotta Company
P.O. Box 540566
275 Lexington Street
Waltham, MA 02454-0556
W. Cluistian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

...
28FMSHRC9

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

February 23, 2006

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

.:

Docket No. WEST 2006-100-M
A.C. No. 26-02478--68079
Docket No: WEST 2006-104-M .
A.C. No. 26-02000-67992

v.
SOUTHERN NEVADA PAVING

...

'·

..

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young;Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2000) ("Mine Act"). On January 25, 2006, the Commission received from the
Secretary of Labor a motion to reopen two consolidated penalty cases which had been dismissed
by Administrative Law Judge Jacqueline Bulluck in an order dated December 23, 2005. Judge
Bulluck dismissed the cases, Docket Numbers WEST 2006-100-M and WEST 2006-104-M,
upon a motion made by the Secretary, filed in the form of a letter dated December 6, 2005. In
this motion to dismiss, the Secretary stated that "the underlying citations have been vacated."

In her motion to reopen, the Secretary states that in the caption to her December 6, 2005,
motion to dismiss, the wrong docket numbers were used, namely, the dockets that she now seeks
to reopen. Mot. at 3. The record reflects that, in a letter dated January 13, 2006, counsel for the
Secretary attempted to advise Judge Bulluck of this error. 1 By then, however, the judge had
issued the order of dismissal.
The judge's jurisdiction in the instant penalty cases (WEST 2006-100-M and WEST
2006-104-M) terminated when her order was issued on December 23, 2005. 29 C.F.R
1

Southern Nevada Paving filed a response to the Secretary's January 13 letter in which
the company opposed the Secretary's request that the judge, in effect, withdraw her order of
dismissal. The company did not file a response to the Secretary's motion to reopen.
28FMSHRC 10

§ 2700.69(b). Under·the Mine Act and the Commission's procedural rules, relief from a judge's
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does not direct .
review within 40 days of a decision's issuance, it becomes a final decision of.the Commission.
30 U.S.C. § 823(d)(l). The Commission has not directed review ofthejudge~s order, which .··
became a final order of the Commission on February l, 2006.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on the basis of inadvertence or mistake. See 29
C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as .practicable by.the .
Federal Rules of Civil Procedure"); Jim Walter Resources, Inc., 15 FMSHRC 782, 787 (May
1993).
Having reviewed the Secretary's motion, in the interests ofjustjce,.w~ hereby ~emaµ<J ~his
matter to the ChiefAdministrative Law Judge for a determination of.whether goo<f:.cause ~xists
to excuse the Secretary's error that led to the dismissal of the two instanf c,as~, a;nd .f or further
proceedings as appropriate.

s~
ss10ner

28FMSHRC 11

Distribution
Jan Coplick, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson St., Suite 1110
San Francisco, CA 94105
James J. Gonzales, Esq.
Holland & Hart, LLP
555 17th Street, Suite 3200
Denver; CO 80202

.,

John D. Pereza
Conference & Litigation Representative
U.S. Department of Labor, MSHA .
2060 Peabody Road, Suite 610 ·
Vacaville, CA 95687
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety And Health Review Commission
601 New Jersey Avenue; N.W.,
Suite 9500
.
Washington, D.C. 20001
·
·~

28FMSHRC 12

.

FEDERAL MINE SAFETY AND HEALTH·REVIEW COMMISSION ..
601 NEW JERSEY AVENUE, NW

SUITE9500
WASHINGTON, DC ~0001

Febru,ary 27~ 2006 .
SECRETARY OF LABOR,:
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

. DOcket No. PENN 2()()6..-75-M :
A.C:'No. 36-0715647898
Docket No. PENN 2006-76-M ·
A.C. No. 36-07156-67440 A ·

v.
WILLIAMS & SONS .
SLATE & TILE, INC.

Docket No. PENN 2006-77-M
A.C. No. 36-07156-70601
Docket No. PENN -2006-18;.M
· A:C. No. 36-07156-45·8 67 · .

BEFORE: Duffy, Chairman;Jor~ Suboleski, and Young, Commissioners
.
ORDER

'~

; .·

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Act"). 1 On January 30, 2006, the Commission received a letter from
Robert Williams, Sr., of Williams & Sons Slate & Tile, Inc. ("Williams & Sons") requesting that
the Commission reopen four penalty assessments that had become final orders of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On February 6,
2006, the Secretary of Labor filed a Response to Request to Reopen Penalty Assessments (a
clarification was subsequently filed on February 15). Williams & Sons did not reply to the
Secretary's response.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
1

Pursuant to Commission Procedural Rule 12, on our own motion; we hereby·
consolidate docket.numbers PENN 2006-75-M; PENN 2006,.76-M, PENN 2006-77~M, and
PENN 2006;.78-M,- all captioned: Williams & Sons Slate & Tile, Inc., and all involving·similar
procedural issues. 29 C.F.R. § 2700.12.
28FMSHRC 13

penalty assessment.. If the operator fails 't o notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commissio.~.. 30 U.S.C'.. § 8~~(a).
The Secretary states that the Department ofLabor~ s Mine Safety and Health
Administration ("MSHA") issued the following proposed assessments to Williams & Sons on the
dates noted: A.C. No. 36-07156-45867 (PENN 2006-78-M), issued on December 16, 2004
(received by the operator on December 28, 2004, and becoming a final Commission order on
January 27, 2005);2 A.C. No. 36-07156-47898 (PENN 2006-75-M), issuecl on Januazy:l3, ·ZOOS;
A .C. No. 36-07156-67440. A (PENN 2006-76-M), issued on September 15, 2005'~ .and A~C No.
36-07156-70601(PENN2006,..77-M), issued on October 28, 2005; -I n·his letter, Williams states
that his health has been "day to day." No further explanation is offered regarding his company's
failure,to timely contest the penalty proposals at .issue, although the letter states that Williams &
Sons wishes .' 'to appeal the citations" underlying the penalty proposals. The Secretary states that
she does not have enough information to determine whether reopening these dockets may be · ·
warranted.
.. ,
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res;, Inc,, 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) under
which, for example, a party could be entitled to relief.from a final order. of the Commission.on
the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges
shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15
FMSHRC at 787. We have also observed that .defa.Ult is a harsh remedy and that, if the
defaulting party can make a showing of good cause for a failure to timely respond, the case may
be reopened and appropriate proceedings on the merits permitted. See Coal Pr.ep: Servs., Inc., "l 7
FMSHRC 1529, 1530 (Sept. 1995).

2

Williams & Sons filed its request to reopen A.C. No. 36-07156-45867 (at issue in
Docket No. PENN 2006-78-M) on January 26, 2006, the day the request was mailed.
29
C.F.R. § 2700.S(d) (with·a few exceptions noted including petitions for discretionary i:eView and
certain procedural motions, "[w ]hen filing is by mail, filing is effective upon mailing"). =The
company's request is·thus·not time barred under the one-year principles set forth-in-JS Sand·&. ··
Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).
'.

·see

28 FMSHRC 14.

Having reviewed Williams & Sons' s request for relief, in the interests of justice, we
remand these matters to the Chief Administrative Law Judge for a determination of whether good
cause exists for Williams & Sons's failure to timely contest the penalty proposals and whether ·,
relief from the final orders should be granted. If it is determined that such relief is appropriate;
these cases shall proceed pursuant to the Mine Act and the Commission's Procedural Rules,
29 C.F.R. Part 2700.

28FMSHRC15

Distribution
Robert Williams, Sr.
Williams & Sons Slate & Tile; Inc.
6596 Sullivan Trail
Wind Gap, PA 18091-9798

•.

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
. .
1100 Wilson Blvd.;2211d'FloorWest ·
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite.9500 .
Washington, D.C. 2~1-20tf
· ·

:

. . ..
~

28FMSHRC 16

FEDERAL MINE SAFETY AND-HEALTH REVIEW.COMMISSION ··
601 NEW JERSEY AVENUE, NW
SUITE9500 ·

WASHINGTON, DC 20001

February 27, 2006
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
Docket No. WEVA 2006-86
A.C. No. 46-08798-72387

ADMINISTRATION (MSHA)
V.

IO COAL COMPANY~ INC.

BEFORE: Duffy~ Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER
. :·

' ,

..

BY THE COMMISSION:
' · . ..
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On February 6, 2006, the Commission received from IO Coal
Company, ,Inc ..("IO Coal") a motion made by counsel to reopen a penalty assessment that had
become a final order of.the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
On September 16, 2005, IO Coal timely contested Citation No. 7240550, issued by the
Department of Labor's Mine Safety and Health Administration (''MSHA") to IO Coal's Europa
Mine. Mot. at I. The contest proceeding is currently before Commission Administrative Law
Judge Avram Weisberger. Id. at.1-2 (citing Docket No. WEVA 2005-235-R). When MSHA
subsequentlyproposed a pena.lty for Citation No. 7240550, IO Coal paid it along with 33 other
penalty assessments. Mot. at 2. The company now contends that it made the payment
inadvertently, and asserts that it had always intended to contest both the validity of the citation
and any related penalty. Id.; Aff. of Timothy Beckner. The Secretary states that she does not
oppose IO Coal's request for relief.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission bas found guidance in Rule 60(b) of the
28FMSHRC 17

Federal Rules of €ivil-Procedu'.re under which~ for: example; .a·party could l:}e entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l{b) ("the Commission and it~ Judges ·sli~ll l?e guided so far as practicable by the Federal
Rules of Civil
Procedure"); JWR, 15 FMS.HRC.
~t 787 ~ .
.
'
.
Having reviewed IO Coal's motitiil, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for IO
Coal's failure to timely contest the penalty proposal, and whether relief fr:0m ~e final order
should be granted. If it is determined that such relief is appropriate.: this·case.shall proceed·
pursuant to.the-Mine Act and the Commission's Procedural Rules,29 CJi.R Part 2700;

\.
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·
Michae~~~
.

. . ..

. .. :. . . . .

~

. . :' . ·.

.

:.

.

:.

.

Jtl+f~
u

o

... ·. . .

: ~. :

28 FMSHR.C 1.8.

·

. ·.·.. . : :. ...

:. • .
~

1oner

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Distribution
David J. Hardy, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd. East
P.0.Box273
Charleston, WV 25321
W. Christian Schumann. Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington. D.C. 20001-2021

28FMSHRC 19

.....

.. '

28FMSHRC20

ADMINISTRATIVE LAW JUDGE DECISIONS

."

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE L6.W JUDGES
601 New Jersey Aveoue, N.W.• .Suite 9500
Washington, DC 20001

January 10, 2006

NATIONAL CEMENT COMPANY
OF CALIFORNIA, INC.,
Contestant

· · · CONTEST PROCEEDING
Docket No. WEST 2004-182-RM
Citation No. 6361036; 02/09/2004

TEJON RANCH CORP,
Intervenor

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

Lebec Cement Plant
Mine ID: 04-00213

. DECISION ON REMAND
Before:

Judge Feldman

This contest matter concerns Citation No~ 6361036. tliat was issued for aii 3lleged
violation of the Secretary of Labor's ("the Seeretary' s") mandatory safety standard in
30 C.F.R. § 56.9300(a) that requires the construction ofberms or guardrails on the banks of
roadways where significant drop-offs exist. The citation involves a private paved 4.3 mile long
two-lane road, beginning at State Route 138 in northern Los Angeles County, and ending at the
entrance to National Cement Company of California, Inc.'s ("National Cement's") Lebec Plant.
National Cement, the non-exclusive easement grantee, and Tejon Ranch Coq)orati_o n ("Tejort"),
as grantor and intervenor, assert that the private·road is not subject to the jurisdiction of the
Federal M.i ne Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act").
The initial decision in this matter granted the Secretary's motion for summary decision
and determined the entire 4.3 mile long private access road to the Lebec Plant was subject to
Mine Act jurisdiction because the road was used predominately by mine related vehicles.
27 FMSHRC 84 (Jan. 2005) (ALJ). The Commission reversed and remanded, holding that
only the segment of the private roadway over which National Cement has exclusive use is a
"coal or other mine" as contemplated by section 3(h)(l) of the Mine Act. 30 U.S.C. § 802(h)(l).
27 FMSHRC 721 (Nov. 2005). Consequently the Commission directed that I determine the point
on the road"... beyond which traffic authorized by Tejon but unrelated to National Cement's
facility ceases." Id. at 735.
28FMSHRC21

. . . . . ..

On December 15, 2005, the·parties filedajo~t stipulation resolving all issues of fact

concerning the identification of any portion of the road beyond which National Cement has
exclusive use. The stipulation states:
The Secretary, National Cement and Tejon hereby agree and stipulate that no
segment of the rorutbetween State Highway 138 and the en~ce .to the cement
plant is used exclusively by National Cement and its customers. ·

ORDER

Consistent with the Commission's remand, in light-of the joint stipulation reflecting .that
National Cement lacks exclusive use over any portion of the private roadway, IT IS ORDERED
that Citation No. 6361036 IS VACATED for lack of Mine Act jurisdiction.
.,~

Jerold Feldman
Adntinistra~v~ 4w Judge

Distribution: (Certified Mail)

.. ...

MargaretS.. Lopez, Esq.,
9gletree,
De.akins, Nash, •Smoak&
Stewart, P.C.,
th . ·.
.
.
.
.
.
2400 N Street, N.W., 5 Floor, Washington, DC 20037

Thomas C. Means, Esq., Crowell & Moring LLP, 1001 .P.enru;ylvaniaAvenue,.N.W.,
·
Washington, D:C· 20004-.2595
Timothy S. Wtlliams, Esq., Office of the Solicitor, U.S. Department of Labor, ..
1100 Wilson Blvd., 22nd Floor, Arlington, VA 22203
· ·
/mh

.·· · .

28FMSHRC22

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
30J..S44..3577~AX 30~5268

January 20, 2006
DISCRIMINATION PROCEEDING

FLOYD DOWLIN, ~
Complainant

Docket No. ~T 2004-492-D
DENV-CD 2004.:09
v.

Mine l.D. 24-01747
Rosebud #6 Mine
WESTERN ENERGY COMPANY,
R.espondent
'DECISION'

Appearances:

Amber Haff,·"Latirel~ Montan~ for Complainant;
Laura E. Beverage, Esq., Jackson Kelly, De~ver, Colorado;· ·
·. : .. . ·
· for ReSpondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by Floyd Dowlin, III,
against Western Energy Company ("Western.Energy")~ mider section 105(c)(3) of the Federal
Mine Safety and Health Act ofl977, 30 U.S.c. §8i5(c)(3}(the''Mine Act"). Mr. Dowliri ·
contends that he was terminated from his employinent beca\ise he complained about safefy issues
at the mine. An evidentiary hearing was ·held in Billings, Montana. I entered a bench·decision at
the end of the hearing di~ing the complaint of discrimination.
I. BACKGROUND; SUMMARY OF THE EVIDENCE, AND
FINDINGS-OF·FACT

Western Energy operates the Rosebud·#6 Mine; a large open pit coal mine in Rosebud
County, Montana. Mr. Dowlin filed a discrimination complaint with the local office of the
Department of Labor's Mine Safety and Health Administration ("MSHA"). The Secretary
determined that the facts disclosed during her investigation into Dowlin's discrimination
complaint do not constitute a violation of section I 05(c) ofthe Mine Act. On September 23, ·
proceeding on his own behalf under section 105(c)(3) of the Mine Act.
2004, Dowlin filed
He alleges that ·he suffered adverse actions because he complained about safety conditions at the
min~. He was·represente4 by his daughter, who is not
attorney.
;·

this

an

Dowlin worked at the Rosebud #6 Mine for abo~t 15 ·years. During.that period, he
·
operated ·many ·different types of mobile equipmeht:but lie preferred to operate bulldozers. In late
August 2002, Dowlin wa5 operating a water truck when.he observed the boom of~ dragline
28FMSHRC23

·. .

..: ..· . . .
~

~.

·,.

swing over an open mine road. (Tr. 54, 111).· He statect'that a coal haul truck drove under the
boom. He reported this condition to mana:gement over the mine radio. According to Dowlin, a
representative from the company safety department investigated the condition but he did not take
.any action. As a. cons~uence, Dowlin called the local MSHA office to complain.abput the .
condi.iion he observed: An MSHA inspector investigated Do~lin' s co~plaint and determined
that no violation of a safety standard occurred. (Tr. 57). MSHA's.lack of enforcement angered
Dowlin, so he calle4 MSHA,again. Another MSHA inspector visited the site and wrote a nonsignificant and substantial citation alleging a violation of 30 C.F.R. § 77.1607(c), as follows:
''verbal testimony revealed coal haul truck #148 passed under the boom of #124 dragline while
the dragline was in operatl.on." (Ex. C-2).
.
.
Between October 7, 2002 and December 6, 2002, Dowlin was on medical leave for two
months because he bad broken his ribs. (Tr. 59, 115). When he returned to work, he operated a
water truck and he was scheduled to operate a coal haul truck. (Tr. 61, 116). Dowlin preferred
not to operate coal trucks because he considered it' to be "boring" and he did not believe that coal
truck drivers make as much money ev~ though the rate of pay.was the same. (Tr. 61-6_2, J28., .
143-44). Dowlin believed that haul truck drivers were not given as mariy opportunities 't o work
overtime. He also believed that his assignment to operate a hauf tiuck violated the Family
Medical Leave Act. (Tr. 63). He liked operating a reclamation dozer because ''you're pretty well
left alone" on that job. (Tr. 142). Dowlin likes to work independ~~tly in an area with minimal .
supervision.
. DowlinJ>elieves that Jack RQ~ander, product~~~ sµpe$t~den~, iµid G~~~.LogaP., ~
production supervisor, were instnmiental in reassignlµg
to ~he .coai batil ~"' ~d. ~t:this
reassignment was in retaliation for his safety compl~nt. Dowlin te~tified that after he ·
complained to them about the assignment, he was reassigned 'to. operate a .dozer. (Tr. '6 4, 117).

hiPl

Between December 2002 and March 2004 Dowlin was primarily scheduled to operate a
dozer on the reclamation crew. (Tr. 118;-19) . He ope~ed pth~r equipment during that period as
assigned by management. Id. On the gi:ave~d shift of ~arch 2, 2004, Dowlin was scheduled to
work with Harry Stevenson to help load a train. (Tr. 64). Both men operated dozers to push coal
into the feeders. A feeder is an opening in the ground tha.t consists of a square concrete box that
is lined with quarter inch flat metal plate. ,(Tr. 232). There are about 15 feeders in the area. ..@x.
R-7). Coal falls through these feeders onto a belt that transi)orts the coal to the top pf the tippie.
Dowlin was operating D-10 ·caterpillm:: and Stevenson WaS operating l~ger D-11. ·powlm ....
testified that visibility was very poor that night and that st~a,m wa& rising from the coal. ~The ·
feeders were co.vered_with coal and it was unpossible.to see wh,~re they.were. {Tr..65, 122). The
metaI.'limng and lips of several feeders .were extensively d~aged that night. Dowl_in.and.. · ·
Stevenson were shown the damage(! fe~ders at 8;00 a.ni.. at the _end.of theli .shift._.(Ji.l22).
Dowlin believes that any number ·o f people could have damaged the feeder5 ·befdre
shift but
that he was s~gled out for punishment. (Tr. 65-66, 123). He ~so testified th~t ~ther people have
damaged the feedeis,'but he is the only employ~e who has. bf;en disciplinect for ~aging the .
feeders.
stated that management based its conclusiOn that he was ~espon~ibie.(Qt th~ damage.

a

a

his

He

28FMSHRC24

solely.on measurements taken of track marks made by the dozer he was operating. (Tr. 66-67). ·
Dowlin·believes that it is more likely that Stevenson damaged the feeders that night. (Tr. 67).
Dowlin attended a·fact-finding meeting with management on the morning oflyiareh 3, 2004. ·(Tl'.
123). -, He. admitted atthe meeting that he had.run over the lip of one or more,feeders that-night. .
Dozer operators are required to keep, some coal over the.f~er area and (Jfe not. supposed to · ·· ·
scrape down to bare di.rt. Dowlin received a verbal warning for the incident. (Tr. 67-68, 124).
He admitted'telling Terry Sprenger,. the -h uman ·resources manag~;,- after the.meeting.thathe did
not disagree with the verbal warning. (Tr. 124-25).
Dowlin was told that he would be assigned to work on the c.oal.haul crew ~ a resu,lt ,of .
the feeder incident. (Tr. 69). He discussed the matter-with Jack.Rosander~ According to'. ·. :
Dowlin, Rosander told him that he was·taken off the:dozer because.:of past incid.ents ineluctmg
the feeder.damage. Rosander also cited the factthatDowlin·had run-o:ver a dragline-cable a·few
years earlier. Dowlin responded.that another employee.had run .o ver a dragline cable threeJimes.
in less than a year. Dowlin told Rosander that this inconsistent discipline demcmstrates that he
was discriminated against in violation of the Mine Act. He testified that other employees
damaged equipmentwithout receiving ·a ny discipline. (Tr.-.144-45). Dowlin maintains:that he
was reassigned to.drive.coal haul trucks inretaliation·for his.2002 safety complaint.· ,
. : .. . . ;
· After this meeting with Rosander, Dowlin talked to Terry-Sprenger.. (Tr. :70).: Sprenger ·
apparently told Dowlin that Rosander,and Joe -Micheletti,. a faciliti~ :manager, arnmged for the
change in ·his work :assignment; but Sprenger told-Dowlin that he was·not discriminated .against· :
as a result of.his:safety.complaint. (Tr/ 71 ). · .
-·
·. .
. .. . ..
: .
'
Late in the -.day on March .3, 2004; Dowlin went to the mine.t0.,wo*·the gi;aveyard·s hift
that started at midnight. Dowlin was "severely upset, severely:depressecf' ,because :o f the:way the
feeder incident had been handled by the company. (Tr. 72). Dowlin testified that because he has
a history of"depression and mentaLproblems," he "justwasn~t quite (in a]righLmind." Id. He
decided that if the ·posted schedule showed:him working on the coal.haul crew the following ..
week, he would tum -ina request for medical leave beeause:he;''was on·.the verge.ofa-mental
breakdown:" (Tr.. 72, 129). When.Dowlin saw.that,he.was schedulecHo.drive a:haul tru~k
starting the following Monday; he turned in a mediCalleave request and:left·the·mine. .He :.
testified that he would not have turned in the medical leave request if the posted schedule
indicated that he .wol!ldbe operating the. dozer. (Tr. 129). His regular shift boss,was ·not.there,
so he wrote a .s upervisor's name on the envelope and placed the medical.leave form where the.
time cards are kept in the crew shack. (Tr. 131 ). .
~

~:

!;

· : :. : :

Jim Holenbeck, the relief shift boss on the :graveyard shift, was an hourly employee .a nd ·a .
member of the local Operating Engineers union with Dowlin: Holenbecktold Dowlin:what · · ..
dozer he would be operating that night. (Tr. 74). Dowlin testified that he refused to
"acknowledge" Holenbeck because he has "no use for that man." Id. Dowl1n went to his locker, .
removed his personal belongings; :and put them in his truck ,He then told·Hol~beck that he
would have to find.someone to replace him because he wa$ going home. (Tr~ 76, l36). Dowlin ·

28FMSHRC25

did not tell Holenbeck that he had requested medical leave. (Tr. 135-3"6).· When Holenbeck
asked why he was leaving, Dowlin testified that he replied "because .of brown nosing rotten
spanky wanky snitches like you." (Tr. 76-77) .. Dowlin also.remembers thathetold.Holenbeck
that he "might have to tear his head off for snitching'~arid ."whip his ass." (Tr. 77, 132, 138). .
Dowlin admitted that he threatened Holenbeck.· (Tr. 131-32}} ·.
·.
Dowlin:then went home to ·r est , When .he woke.rip he w.as feeling ~'.depressed : and ·
suicidal" so he called to make an appointment with his doctor: (Tr. 77). After meeting with the
doctor, he received a referral to a psychiatrist and the doctor wrote a letter recommending that
Dowlin be excused from-work because of his·mental condition. (Tr. 78;·Ex. C...3). Dowlin
checked'into· the psychiatric·.ward of the Deaconess Hospital.in Billings.· He was in the hospital ·
about four·or five days. ·(Tr: 84) •.His·diagnosis was ''major depression, recurrent with mild ·
psychotic features"· and "occupation related problems." (Ex. C-s; p. 2). He agreed to see a
counselor as a condition of his release. Dowlin had therapy sessions·with several ~ounselors..
(Tr.'84-5, 88-89, Exs. C-6,. C-7).
When-.Dowlin left the mine just before the start of-his shift,.Western-Energy assumed. that
he had quit. Mr. Sprenger wrote a letter to Dowlin which·stated that the company had been
"notified that you tendered your verbal resignation on March 3, 2004, at approximately 11 :30
p.m: to Mr. Jim Holenbeek, ·acting ~upervisor." (Ex. C-8): Dowlin-testified.that he:did net tell
Holenbeck that he was quitting and he leftthe.requestfor medicaUeave in the"ereW shackF(Tr. ·
94). Dowlin testified that, because he was a faithful 15: year employee at Westem Energy, Mr.. ·
Sprenger should have called to find out why he left the.mine:· The.fa.qt that hewas"nevercalled ..
demonstrates that Western Energy was trying to "get rid" of him "due to safety factors!' (Tr. 92).
He never received a response to the request for medical leave . . Dowlfu maintains that the
·' · ·
·.. · ·
company terminated him-for raisiiig safety issues:· .' · ·
After he was· released from the hospital, Dowlin contacted ms union representative to set
up a meeting With management. He did not want his job.·back at that time,.but·he wanted the
company to.honor his request for medical leave. .(Tr. 97d.26-27). Dowlin:testified that the .
union negotiated a.settlement in which.he would-receive"$3,600 and have his'medical leave
request honored, but he tumed'the settlement down. {Tr. 97; 1271-143). ·
On cross-examination, Dowlin admitted that·under the:collective bargaining agreement:a
miner does not have the right to operate a particular type"of equipment and that management may
assign and reassign an employee to operate any other type of equipment for-which he has · .·
received training. (Tr. 112). He also admitted that Western Energy is not required to make job
assignments based on seniority. (Tr. 151 ) .. Mr Dowlin was task trained to operate a wide ·range
of equipment at the mine including coal haul trucks, dozers, and·scrapers. .. (Tr;:113; Ex5R-3): .

...

1

·In January2004, Dowlin damaged a·inetal culvert·ashe·removed:itwith·his·dozer. He
called Holenbeck a snitch on.March 3 because Dowlin.believes .that Holenbeck told managementabout the damage. Dowlin was not disciplined for the damage. (Tr. 132-35).

28FMSHRG26

Dowlin admitted that he could.have volunteered for overtime while he was.·a coal haw truck .
operator, but he was guaranteed work on three weekends as a reclamation dozer operator. (Tr.
149, 152-53).2
Jim Holenbeck worked for Western Energy for 25 years before be retired. ..(Tr. 203);·.·He
was a scraper blade operator in March 2004. .Because he was a certified mine foreman he.filled
in as a supervisor on an as-needed ·basis. He was :the acting' supervisor:on the gr~veyard shift that
started at midnight. He recalls that Mr. Dowlin asked him to meet him outside before the shift
started. (Tr. 204);· Holeilbeckrecalls that Dowlin told him that he was quitting. (Tr~ 205). As
Dowlin:walkedto :h is pickup truck, Holenbeck asked Dowlin what was the matter. Dowlin told
him that he would not work for anyone who ratted on him. Id. Holenbeck testified that when he.
tried to tell Dowlin that he did not rat on him, Dowlin repliecl.that he should whip.his butt and he
drove off. At·the suggestion of another supervisor, Holenbeck wrote a·memo .describing what
happened .a nd left it on Rosander's desk. (Tr. 205..:06)~ In the memo; he wrote that·Dowlin.told
him he was quitting. (Ex:.<R-4).
·:

..·

Jack Rosander was the production superintendent in March 2004. (Tr. 214). He testified
that under the collective.bargaining ·a gteeinent, employees are 'a ssigned tn.equipment on a weekly
basis without regard to employee seniority.·· tfat-216; Eil.·R·5; p.·13). He testified that the coal
crew made as much if not more money than dozer operators in 2004. He further testified that he
prints out the we.e kly cEew..sch~ule on Wednesday of the preceding week. {Tr; :220), ·
..

~

. :.

·.: . .. :

. Rosander testified:that he,inv.estigated :the. damage to the ,feeders~ and took photographs. ·
(Tr. 228; Ex. R·:8)~ ·The.photographs were.taken the m~ming after:Mr; Dowlin.'·s.:graveyard.shift.,
(Tr.230). Some of.the feeders.were severely damaged in:thatthe metaUining;had ,beenbent
back. (Tr; 232). The damage was mote extensive.than he could ever remember. (Tr.236,::.25152; Ex. R-8 p.·9) . .Jn addition; quite.a bit of dirt had been pushed into,the·feeders·which affects
coal quality. (Tr. 233). By looking at the dozer tracks and measuring their:width; Rosander · ·
determined that the damage had been caused by Dowlin's smaller dozer. In addition, Rosander
testified that Mr. Stevenson told .him.that. Dowlin.had been working :around the feeders -that were
damaged. (Tr..235). Stevenson told Rosander that he.was ·:working!up·on coat:piles:-at,the east .
end and Dowlin was working on the west.end near .the·damaged feeders. ·(Tr. 263). Rosander
also determined that the ·previous crew had not.damaged.the,feeders. Rosander testified that ,

2

Five miners also testified on behalfofDowlit). Mostofthetestimonyconcemed.the events
oflate August 2002,when the boom ofa dragline SWl:lllg.o ver amine road. ,Several miners, including
a union steward, testified that they were.not aware of ctnyone else being disciplined for.damaging
feeders. (Tr. 50, 156, 176). There was also testimony:thattniners had been disciplined for:damaging
other equipment. (Ti:. 50, 188), . One miner testified; .that .if an ·.employ~ does something'. that
management does not agree wi~ he will likely be assigned to ajob·that.he does noHike~ . (Tr.. 174).
Another miner testified that an employee is permitted to slow .down or shut down·his equipment.if
visibility is too poor to work safely. (Tr. 168). Another miner testified that he preferred to operate
coal haul trucks rather than work on a dragline.
28FMSHRC27

when he talked to Dowlin about-the damage, Dowlin acknowledged :that he damaged the feeders.
(Tr. 237).
Following his investigation, Rosander determined that Dowlin should be transferred to
another ·position. (Tr. 238). ·Damaging the feeders :has a negative effect on coal ·production. He
reass1gned Dowlin to a coaf hauling position. (Tr. 239). He did not expect that this transfer · ,
would reduce the amount of money Dowlin would earn. (Tr. 261). ·
. '
·Rosander does not believe that the boom of the dragline.extended.over the roadway in ·
August 2002. (Tr. 239-43). He bases this conclusion on his -understanding of the configuration
ofthe roadway and the position of the dragline on ·that day.· MSHA Inspector Priest did:not issue
a citation.· A few days later, MSHA Inspector Keller issued.a citation for the condition. The
company paid-the $55.00 penalty proposed by the Secretary:because it was not worth
challenging. (Tr. '244). Rosander denied that Dowlin was transferred to·the coal lfaul trucks in
December 2002 and in March 2004 as a result of his complaint about the boom of:the dragline in:
August 2002. (Tr. 245).

.. . .

' ~

·JI. DISCUSSION.WI'J;H-·FURTHER Ji'INDINGS: · ·.,· ..' · ·
· · · · . · ·. . AND CONCLUSIONS·OF·LAW · ..

..,

Section 105(c) of the Mine'Act pr-ohibits 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 ofthe·[Mine]Act"recognizing.- that; "ifminers.are to be
encouraged to ·be active··i n matters of safety:and health; they must:be protected against any ·
possiblediscriminati~n which·they might sUffer as a result of their participation.". S.-Rep-. No. ·
181~ 95th Cong., pt Sess. 35 (1977), r.eprfnted.in Senate Subcommittee.on Labor, Committee.on
Human:Resources, 95lh Cong., 2nd Sess., Legislative History:ofthe Federal Mine Safety and ·
Health Act of1977 at 623 (1978) ("Legis. Hist.")
..
A miner alleging discrimination·. under the ,Mine Actestablishes a pr.imafacie case·of
prohibited·discrimination bypresenting,evidence:sufficienno 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~ 2797-800 .
(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor on
behalfofRobinette v. United Castle Coal Co.• 3 FMSHRC 803, 817-18 (April 198i);Drie~sen v.
Nevada Goldfields,·lnc., 20 FMSHRC.324, 328 (Apr. 1'998). · The·rilineoperatormay·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. Pasu1a;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: Pa8ula at 2800; Robinette~- 3 FMSHRC at 817-18i see
also Eastern Assoc. Coal Corp. v. FMSHRC; 813 F.2d-639,·642.(4th Cir: 1987).
I'·•

28FMSHRC28

. A. Protected-Activity

I find:that Mr. Dowlin engaged in protected activity. He testified that he saw the boom of
a dragline swing over a roadway and a truck pass under the boom. For purposes of this decision;
I credit this testimony and find that it qualifies as protected activity.
.

~.:

.
. . ;

B. Advene Action

l . .Verbal Discipline and:.Reassignment.to Coal.Haulage. Trucks. . ·

Dowlin genuinely believes that the,companyrequired.him to operate coal haul trucks in
December.2002 ·-and March 2004·in: retaliation' for ·his August 2002 safety complaint. .The
company contends that these equipmentassigninents·were made in the ordinary course of
business and:that they were ·not "adverse~' :because his rate ofpay did not .change. Ift addition,,it
maintains .that his total wages were.not·adversely:affected by:these. assignments becailse he.was
still eligible for overtime. ··
~

. ..

It: is clear that Dowlin saw these actions as ~':adverse": to his interests: The:company knew
that he preferred to operate a ·:r:.eclamation dozer and :Dowlin sincerely: believes ·that ·he.'was ,taken _
off the dozer to punish.him. The Deeember.2002..assignment to operate a coal hauLtruckcaiinot
be construed as adverse because Dowlin was reassigned to the dozer as soon as he requested it.

.· . With respect to his·March.200:4 ·assignment t()l_a coal .haultruck, Dowlin,believe5' that lte,. ·
was treated·differently from other:employees;who had-damaged:equipmenL ·He:pointe&to a '_.· -·
number of employees who .h e believ.ed·had·caused;signi:ffoant damage,to equipment. . .He al&o '. . ·
contends that the company had insufficient cause to blame him:forthe.damage, which: shows;that
management had a discriminatory motive. The company maintains that damage to the feeders
was quite substantial and that:it had more:than enough:evidence to;determine that Dowlin caused
the damage. It relies on the fact that Dowlin ·admitte& that-he:damaged one or more feeders that
evening. W estem Energy contends that i~ was·.Within;its :rights under the collective bargaining
agreement to give Dowlin a verbal warning and :t o·reassign.him to:a 'haul truck following the
feeder incident. Rosander did not believe thatthis reassignmentwouldreduce,his .p ay and I
credit his testimony on that issue. Thus·; I find that Dowlin did not-suffer an:adverse action when
he was assigned to operate a coaJ:haul truck the following week.· Nevertheless, I give Dowlin the
benefit of the doubt and, for purposes of this·decision, I will assume that his ·verbal warning and
reassignment to operate-coal.haul trucks in March 2004 was an adverse action.
fu 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 ofmotivation is rarely
encountered; more typically, the only available evidence is indirect."· Sec'y ofLabor on behalfof
Chacon v. Phelps Dodge.Corp., 3 FMSHRC2508; 25l0(November1981),,rev'don 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). Jn Chacon, the

28FMSHRC29

Commission listed some of the more common circumstantial indicia.ofdiscriminatory intent: {l)
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.
Western Energy had knowledge of the protected activity. Although there was some
hostility to Dowlin calling MSHA twice in August 2002, there is no evidence that ,this hostility
continued into 2004. In addition, there is no evidence that the company was hostile to employees
raising safety issues. One ofDo.wlin's witnesses testified.that amineds. not.required to operate
equipment when visibility is too poor to work safely. {Tr. 168). There was no coincidence in
time between the protecte4-activity and the.adverse action. Although D0wlin made·claims of
disparate treatment, I credit the testimony of Rosander that the:damage to.the feeders .was .more .
extensive than he had ever seen. ·He determined that Dowlin should be:reassigned based·on the
damage caused, the dozer.track marks, Stevenson's statements, and Dowlin~s adniission that.he·. ·
damaged at least one feeder. Rosander did not:believe.that his wages,w.ould ·be adversely ·.· :
affected. Although Dowlin believes that he was the only employee who was transferred-' to·' . · , ·
another piece of equipment for damaging the feeders, he admitted that other employees have
been transferred for causing.other equipment.damage. (Tr. 137). He also testified that several
employees who were not:transferred caused·more equipment damage-than he:did. ' (Tr: ·144);: All
of his evidence on this issue is quite anecdotal and,does not establish disparate treatment:
In a discrimination case, a judge may conclude that the justification offered by the
employer for:taking.an adverse :action ·~'is · so weak, so:implausible~·:or .so out.of line.-with .normal
practice.that it was ·mere pretext seized .upon to cloak the.di~criminatory motive:~~ . · Chacan:;-at J .
FMSHRC 2516. The Commission explained the:-proper .criteria for analyzing.an operator's. ,.. ·:·::
business.justification .for.an .adverse action:·
....

The Commission and its. judges hav.e neither, the statutory
charter nor the specialized expertise.to sit as a super grievance or
. arbitration beard meting.out industrial .equity. .Once it appears that
. a: proffered :business justification is ·not .plainl;y-incredible. or
implausible~ a finding of.pretext is inappropriate.i We ·and-our judges should :not substitute for the operator.' s business judgment
our views on '~good" business·practice ot-:on whether a .particular
adverse action was "just or "wise." The.proper focus, pursuant-to
Pasula, is on whether a credible justification figured inte the .
motivation and, if it did, whether it would have led to the adverse
action:apart from the miner's.protected activities.. Ifa:proffered
justification survives pretext analysis .... , then a limited ..
·examination-of its substantiality-becomes :appropriate. The · ·
question, however, is not whether such a justification comports
with·a judge's or our sense of fairness or enlightened business .
practice.. Rather the narrow statutory question is whether the . ·
28FMSHRC30

··

reason was enough to have legitimately moved thatoperator to .
have disciplined the niiner. .

Chacon, at 3 FMSHRC2516-17 (citatiorisomitted).
I find that Western Energy's alleged business justification for reassigning Dowlin to
operate a haul truck is.credible. The' reasons set forth by Western Energy for·disciplining and
reassigning Dowlin were "enough to have legitimately moved the:operator to have" taken·those
actions. Haro v. Magma Copper Co., 4 FMSHRC 1935, 19J8. (Nov. 1982): I conclude thatthe
evidence establishes that the verbal:waining.aitd reassignment to' operate haulage trucks was not
motivated by Dowlin' s protected activity
..

2•. Separation from Employment.
. Dowlin argues that·hewas temiinated:from his employment in March 2004 when:he ·.
refused to .operate coal hauJ trucks·and requested medical·leave for his mental:condition :brought '
on by the company~s discriminatory.a ctions.· .He contends that he-did not tell Hoienbeck thathe.
was quitting and.that he left·his request for medical leave in the.crew ·shack for the supervisor on:.
the day'.shift. , Given his 15 years of employment with:the.company; Mr.. Sprenger should ha¥e· : :
inquired as to his intentions rather than.assuming that he quit. He believes that:he was fired·by.
the company when it chose to ignore his request for medical leave; Dowlin also·points to 'the
intake notes of the physiciaiis·and counselors who·treated.him following .his termination:from .
employment which state·that.his mental condition·:was theresult.ofhi~ discriiriinatory,treatment
by his employer.
· , ·
·' . ··...
..

·. . .

·. . : :

At the-close ofDowlin's cas.e , Western Energy moved for summary decision:and asked .
that this case be dismissed. (Tr. 188). I took the motion under advisement. (Tr..201 ). After the
testimony ofHolenbeck and Rosander, Western Energy renewed its motion. (Tr. 266).
Following oral argument,! granted Westem <Eneigy~s motion to·-dismiss. (Tr. 267-71).
. , ... ··

Western Energy argues that Dowlin quit hisjob.when he-leftthepropertyjust before ,
midnight on:March 3, 2004. (Exs. C-8, R-4). Holenbeck; the relief shift boss,.believed that
Dowlin had quit and-he wrote a memo to .his supervisor·setting forth his conversationwith.
Dowlin. In addition, the intake notes of the physician in Billings who: saw Dowlin in :March:
2004 indicated that Dowlin-told him that he had quit his job. (Tr. 107; Ex. C-4~ R-2). .Dowlin
stormed offthe mine in anger and failed to return. At the hearing, during .oral argument, Dowlin:
stated that he "walked off.the job." (Tr. 191). As a consequence, the company argues-that there
was no adverse action.
Assuming that there was•an adverse action,.Western Energy argues that Dowlin~s alleged
termination is too .remote in time to relate back to his complaint to:MSHA in August 2002.
There is no connection·between Dowlin's safety complaint and the companis treatment ofhiin '
in March 2004.-: Finally, Western. Energy argues that no relief can be given -in ahy'event because.· •

28FMSHRC:31

the Social Security Administration subsequently determined that powlin was eligible for
disability benefits retroactive to March 4, 2004. Thus, the Federal government.ha8 already
determined that Dowlin is not capable of working or earning a living. The Commission cannot
grant Dowlin back pay or reinstate him in the :face,of this determination by the Social Security
Administration.
I find that-Dowlin did not establish that he was involuntarily terminated,from his .
employment: I find that Western Energy, in good·faith, believed that Dowlin had q.uit. Do~lin .
did not advise Holenbeck that he was requesting medical leave. Rather, he.left a form for such a
request in the crew shack. I credit the testimony of Holenbeck that he·,believed.Dowlin had quit.
There is no evidence that Westem Energy intended to terminate Dowlin as a result ofhis actions.
A mine operator is not permitted to provokeamiµerwho has engag~d in protected
activity so that he quits or takes actions that subject him to discipline. In such a case a miner's
"impulsive behavior" may be overlooked if he was: wrongfully provoked .by the mine operator.
The Commission has '~recognized the-inequityofpermitting an. employerto.discipline an ·_.. "
employee for actions which tlie employer provoked." .Sec'y ofLa.bor.on behaljof}ffcGill :v. U.S.
Steel mining Co. , 23 FMSHRC 981, 992 (Sept. 2001). Although Dowlin did.not tais.~ this .
argument; a Commission judge is "obligated:to determine whether the actions,for which·the
miner was disciplined were.provoked by the: operator's-response te the miner1s ,protected -activity.
. . ." Id. .In this case,; Dowlin was not disciplined ·for his impulsive behavior butJris·behayior led
the company. to believe that .he had quit. · "Whether .an -employee~s. indiscrete reaction to .being
provoked·is .excusable-is.a question that-depends·.on the ·particular.facts 1and circumstances of ' , ·.
each case." Sec'y ofLabor on behalfofBernardyn v. Reading Anthracite Co., 22 ·FMSHRC 298;
306 (March 2000). I must determine whether Dowlin's conduct is within the scope of the
"leeway" courts :grant employees whose ''behav.ior takes place in response.to an employer's
wrongful provocation." Id. at 307-08. ·
I find that Dowlin should not be granted leeway in.this case: I recognize that Dowlin has

a history of mental illness. Apparently he attempted suicide in the early 1990s. (Bxs. C-6, C-7).
Nevertheless,.the incident that provoked Dowlin was simply the·reassignment.to 'drive a haul
truck the following week. He did not want.to drive a:haul truck ·because he folt'itwas' a "boring"
job and he would be subject to greater supervision by-management. Jn.response, Dowlin
threatened·Holenbeck and stormed off the property. There,was no immediate threat to Dowlin' s
safety or health and he was fully trained.and qualified to operate:a .coal haul truck: He simply ·
preferred to operate a reclamation dozer. I find that managemenes reassigninent of Dowlin to
another-piece of mobile equipment did not constitute a wrongful prnvocation under the Mine
Act.
I also·find that constructive discharge does not apply to this situation:.. A.miner can claim
that he was,constructively discharged if the mine operator !~created or maintained..conditions so.
intolerabl~ that a re~onable miner would have felt compelled to resign." Sec,'y ofLabor on
behalfofNantz y. Nally & Hamilton'Enterprises;.Inc. , 16 FMSHRC 2208, 22-10. (Nov; 1994)

28 FMSHRC 32.

(citation omitted); Secy ofLabor on behalfofBowling v. Mountain Top Trucking Co., 21
FMSHRC 265 (March 1999).3 In this instance, there is no showing that Dowlin's safety was at
risk at the time he left the mine or that, by driving coal haul trucks, he would be placed in an
unsafe situation. He.had.driven coal haul truGks_in Uie·past and there was.no evidenc~ that_these
trucks were unsafe. In addition, Dowlin was assigned to operate a dozer on that shift. A
reasonable miner would not have felt compelled to qt,rit. Dowlin's decision to leave the. ~
was related to his idiosyncratic mental impairment rather than a reasonable fear that he would be
asked to perform an unsafe task. .
Dowlin contends that mine management, including Rosander, harassed him for years and
that the events of early 2004 were the final straw. He feels that Western Energy treated him
unfairly and that the company is partially responsible for his mental problems. Dowlin
introduced evidence to show that Rosander and other managers had been treating him unfairly
well before he made his safety complaint in August 2002. (Tr. 38-39, 49-50, 137-38, 145-46,
158). Although such disparate treatment may have been unfair, assuming Dowlin's allegation is
correct, the Commission "does not sit as a super grievance board to judge the industrial ments,
fairness, reasonableness, or wisdom of an operator's employment practices except insofar as
those policies may conflict with rights granted under section 105(c) of the Mine Act." Deliso v.
Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990). As stated above, I find that Western
Energy's actions did not violate the anti-discrimination provisions of section 105(c).
ID. ORDER

For the reasons set forth above, the discrimination complaint filed by Floyd Dowl~ III,
against Western Energy Company under section 105(c) of the Mine Act is DIS SSED.

Richard W. Manning
Administrative Law Judge

3

Constructive discharge is typically upheld in situations were the employer's conduct is
egregious. See, e.g., Liggett Indus., Inc. v.FMSHRC, 923F.2d150, 152-53 (10thCir.199l)(court
agreed that welder with diagnosed respiratory condition was justified in quitting inadequately
ventilated mine where operator demonstrated no intention of improving ventilation); Simpson v.
FMSHRC, 842 F. 2d 453, 463 (D.C. Cir. 1988) (miner justified in quitting rather than continuing to
work in mine in which operator was responsible for multiple ''blatant" safety violations that had
repeatedly and continually occurred).
28FMSHRC33

Distribution:
Amber M. Haff, 6680 Duck Creek Road, Lamel~ MT 59044 (Certified·Mail) •
Floyd Dowli~ III, 1113 ·w. Annells:Road~· Forsyth,.MT 59327-9469 (Certified Mail)
Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver~ CO 80202,.
1958 (Certified Mail)

RWM

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28FMSHRC34

.

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

January 24, 2006
CNIL PENALTY PROCEEDING

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

'Docket No. CENT 2004-212
AC. No. 29-02170-32227

v.
Sari Juan South

SAN JUAN COAL COMPANY,
Respondent

DECISION
Appearances: Michael D. Schoen, Esq., Office of the Solicitor,·u; S. Department ofLabOr,
Dallas, Texas, fotrPetitiorier;
· ·
:·
·
:
.
·· .:: ·
Timothy M ..Biddle, E~q.. Daiiiel w: Wolff; Esq., Crowell & Moring, LLP,
Washington, D.C., for Respondent.
·
··
Before:

Judge Hodgdon

for

This case is before me on a Petition
Asse5sment of Civil Penalty brought by the" . : .
Secretary of Labor, acting through her Mirie"Safety and Health Administration (MSHA), against
San Juan Coal Company, pursuant to section 105 or'the Federal Mine Safefy and He.a lth Act of
1977, 30 U.S.C. § 815. The petition alleges three violations of the Secretary's mandatory health
and safety standards and seeks a penalty of$13,524.00. A trial was held in Fanniligton, New
Mexico. For the reasons set forth below, I modify a citation mid an order,. affirm the third
·
citation, and a5sess a penalty of$10,~24.~.
Backatound

San Juan Coal Company operates the San Juan South Mine, an underground coal mine in
Waterflow, New Mexico. The mine operates 24 hours a day, seven days a week, in three ten
hour shifts per day. The day shift~ 7:00 a.m. to 5:00 p.m:, ·a nd the afternoon shift, also called the
"swing' shift, 4:00 p.m. to 2:00 a.m., are production ·shifts. The "grav.e yard" shift; 10:00 p.m. to
8:00 a.m., generally performs maintenance (which explains why it is also known as the
')naintenance" shift).
Coal is mined by the·longwall method. The ·tongwall miner in the 102 longwall panel, the
area under consideration in this case, consists of a double cutting drum shear which is conveyed
back and forth across the coal face on ~ conveyor system, cutting the coal. Th~ coal falls onto a
28FMSHRC35

. ' ..

pan line below the shear and is transported to the headgate to be taken out of the mine. The roof
is supported by 176 shields ranging across the longwall face, which measures 1,006 feet. After
the shear cuts the coal, the shields automatically advance toward the face, providing continuous
support for the newly exposed roof.
Except for the first four shields on ~ach side of the face, whicJ1 are slightly larger. the .".
shields are five feet wide at the bas~. As cqal is mined, the continuous cuttmg action <?f the shear
causes coal dust, coal partic.les. and cpUnks of coal to accumulate on the shields. These
.
accumulations are cleaned off of the shields mainly by the use of high pressure water hoses
which are located every ten shields. If the coal is too large to be cleaned off by the water, shovels
are used. Of the six man longwall crew, two miners called "propmen" have the primary
assignment of cleaning the longwall shields.
MSHA Inspector Donald E. Gibson, the Field Office Supervisor in MSHA~ s Aztec, New
Mexico, field office, went to the mine on M:µ-c]l 22, ~004, to conduct a five day spot inspection. 1
After reviewing the mine records and meeting with management officials, he went underground
with Monty Owens, San J.uan's.safety representative, and St~ve ~elkins, the.µllners'
.·
representative, to inspect the 102 longwall. They arriv~ at the -h~adgate at about 7 :30 a.m:,
shortly after.the beginning of the day, shift. The longwall w~ n~t 'iii operatio~ b~cause the
..
.
. . "
miners were oonstructing isolation stopping.2

an

Inspector Gibson proceeded across the longwall face. When he an:ive4 in the area of. ~
longwall shield 130 he observed that shields 130 through 176 had accwilufations ofloose coal
and coal dust on the jack legs, ·On the toes of the shields, as well as on the base o( the shields and
the leminscates. The a9cuniul~tions measured between i /8 -in~h and 10 .incliei; in ·depth.' ~ased
on his observations, Inspector 0bsori issu~ Citation No. ·4768527~
·
After issuing the citation, Inspector Gib~~-continued his in.Spection to the·tailgate area
and the Nos. 2 and 3 return air entries. When he arrived at the No. 3. entry, Jie noticed that the
area next to a check curtain~ directing air into the No. 2 entry, was black with float co31 .d ust. He
went to the No. 2 entry and observed that both entries
black with float coal dust. The
..
inspector examined along both entries, and noted what he believed to be impermissible float coal
dust accumulations from crosscuts one throtlgh 1i. · As a consequence, he issued Order No.
4768528.

were

Citation No. 4768527 and Order No. 4768528 were contested at the..trial. A third
that.
vioiatfon, .s etout in Citation
.
. No. 7605679, was .included in tlus docket.. .S~ Juan stipulated
.
Because the mine liberates more than one million cubic feet of meth~e ~er
it -i~
subject to a ~'spot. inspection . .. every five working days ~t irregul~ intervals." 30 U.$ .C.
§ 81J(i). .
.
. ..
.
..
"

day

1

·

2

The iast tinie coal had been niliied w~ on the preVious day's afternoon shift~ ..

28 FMSHRC '3'6..

Citation 7605679 properly alleged a violation of section 75.403 of the regulations, 30 C.F.R. ..
§ 75.403, and agreed to pay the assessed penalty of $324.00 iil full. .(Tr. .11-12.)

· · . Findines of Fact and Conclusions of Law
Citation No. 4768527
This citation alleges a violation of section 75.400 of the.Secretary's regulations, 30
C.F.R. § 75.400, because:
·
Accumulations ofloose coal and fine coal dust w[ere] .
permitted to accumulate on the shields on the 102 Longwall
:retreating working section. ·
The accumulations were .on the·leminscates,. both top and
bottom, from .shield 130 to shield 176, inclusive.. The .
accumulations were dry.
The accumulations were teft from the afternoon shift which,
stopped mining at 0200 hours 3/22/04.
Several discussions occurred.with mine:management.
concerning cleaning off ofthe shields; , .
. · The accumulations ranged from l/8!~, to 10" deep. ·
(Govt. Ex. 10.) Section 75AOO:requires that: · 'fCoaltdust, including ..float coahdUSt deposited on
rock dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings; or on diesel-powered and .electric equipment·
·
therein." 3
The Respondent does not deny that the accumulations .existed as observed .by Inspector
Gibson, but maintains that the operator was not given an opportunity to clean them up before the
citation was issued.. In making this argument, the company focuses on the "shall be,cleaned tip"
language of the regulation. On the other hand, the Secretary, emphasizing "not be permitted to
accumulate," asserts that if there is an accumulation, there is a violation. While the facts· in some
case may require that a line be drawn between the two interpretations, this is not that case. Under
either reading,. San Juan violated the.regulation.
The company argues that the afternoon shift "just ran out of time·before. they were able to
wash down all 176 shields~' and that "it was perfectly normal for a subsequent·production shift to
pick up cleaning where the previous production shift left off." (Resp. Br. at 20.) Thisiargument
might have merit ifthe subsequent production shift began when the previous produttion:shiftleft

3

This language, with the exception of the words "diesel-powered. and," was taken·,

verbatim from section 304(a) of the Mine Act, 30 U.S.C. § 864(a).
28FMSHRC3T

··

off, but that is not the case here. Instead,. at least five and one half hours .elapsed between-the
time the afternoon .shift left the mine and Inspector Gibson :issued the citation.
The Commission has.long held thatthe legislative history of the Mine Act "demonstrates
Congress' intention to prevent, not merely to minimize, accwnulations. The standard was
directed at preventing accumulations in the first instance, not at cleamng·up the-inaterials·witbin
a reasonable period of time after they ~ave accwnulated." Old Ben Coal Co., 1 FMSHRC 1954,
1957 (Dec; 1979): .The Commissfon werit-on to·state that: "We hold that a violation of section
304(a) and 30 C.F..R. § 75.400 occurs when an accwnulation of combustible material e:Xists." Id.
at 1958. Since there is no dispute that the accumulations on the shields existed, it follows that it
was a violation of the regulation;
Furthermore, even if it is inferred that the operator·has to be ·afforded an opportunity to
clean up the accumulations, this operator made no attempt to clean the accumulations up within a
reasonable time. The maintenance·shift apparently made no effort to clean up the accumulations
and the day shift had not started to clean them up at the time .that .the inspector discovered them
even though the:shiftbegan at 7:00.a.m. As·the Commission.has stated:
The goal of reducing the hilzard of fire or explosions in a mine by
eliminating fuel sources is effected ·b y-prohibiting the accumulation
of materials that could be the originating sources of explosions or
fires and by also prohibiting the accumulation of those materials
· that·oould feed.-exj>lOsions.ot:fires originating·elsewhere in,a mine.
.. .."- . ,· ·~ .• . ·.. . : :
Black Diamond Coal Mining Co., 7.·FMSHRC .1117, 1120 (Aug: 1985). This danger exists'as
long as the accumulations exist. The danger does not cease to exist when a production shift· is
followed by a maintenance shift or when the day shift is putting in an isolation stopping. In this
case, the operator took.no action to clean=-up the·accumulations·for over five hours · ·
Accordingly, I conclude that the.company violated section·75.400 as:alleged. ·

Significant and Substantial
The inspector found this violation to be "significant and substantial." A ~~significant and
substantial" (S&S) violation is described in section 104{d)(l) of the Act, 30 U.S.C. § 814(d)(l),
as a violation ~'of such nature as could significantly and substantially contribute to·the cau·s e and
effect of a coal .·o r other mine .safety or health hazard.'~ A violation is properly desigDated.S&S
''if, based upon the particular facts surrounding that.violation, there exists·a reasonable likeljhood
that the hazard contributed to will result in an injury or.illness.of a reasonably:serious nature." ·
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission enumerated four criteria
that have to be met for a violation to be S&S. See also Buck Cr.eek Coal, Inc. v.. FMSHRC, 52
28FMSHRC38

F.3d 133, 135 .(7th.Cir. 1995); Austin Power, Inc. v. Secretary; .861F.2d99,. 103-04 (5th Cir.
1988), ajf'g-Austin Power, lne., 9·FMSHRC 2015, 2021(Dec.1987) (approving Mathies
criteria). Evaluation of the criteria-is made in terms of "continued normal mining operations."
U.S. Steel Mining Co.,.Jnc., 6 FMSHRC 1573, 15.74.(July 1984). The question of whether a ·
particular violation·is.S&S must be based on the:particular facts surrounding.the·violation. · ·
Texasgulf, Inc.;.lO.FMSHRC 498 (Apr. 1988);.Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (Dec. 1987). .
..
In order to prove that a violation is S&S, the Secretary must.establish:· .(1) a violation of.a
safety standard; (2).a distinct.safety hazard contributed to by the violation; (3):aieasonable..
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature. Mathies, 6 FMSHRC at-34. I.have already
found a violation ·of a safety standard. I further find-.t hat the accumulations contributed.~o a ·
distinct safety haz;n-d, i.e. as the originator or·feeder ofa fire or an•explosion. Thus~as·is:. almost ·
always the case, the question of whether the violation is.S&S.tums.on whether the hazard,.:·
contributed to will result in an injury.
...

In connection with accumulations, the Commission has held, with regard to the third
Mathies criterion~ that:
. ·,

.·

. When evaluatjng.the·reasonable-likelihood .o f a fire, ignition, -or .
.explosion, the Commission has,examined whether a "confluence.of
factors" was present based on the·particular·facts ..surrounding the
violation.. .Texasgulf, Inc., lO·FMSHRC.498, 501(April1988)..
.·· ..
Some of the factors ·include the extent of accumulations, possible
ignition sources,·the presence·of me~e, and the type of
equipment.in the area. Utah Power-&Light Co., 12 FMSHRC
965, 970-71(May1990) ("UP&L"); Texasgulf, IO FMSHRC at
500-03.

. '

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997).
Inspector Gibson testified that the accumulations were "the worst that I'd seen" in his
many inspections of the longwall and the mine. (Tr. 104:). Theywere·extensive, ·c overing up to
46 shields, an area of 230 feet, in deposits up·to 10 inches in depth. They were also dry. (Tr.
104.) In addition to the extensiveness of the accumulations, the mine liberates more than one
million cubic feet of methane per day. Finally, witnesses testified: (l) that the bits on the shear's
drums caused sparks when striking rocks or metal, such as .the sprags on the shields; (2) that
there were electrical cables along the face as well as electrical ·e quipment; and (3) that all of these
could serve as ignition sources for a fire or explosion. (Tr. 84, 105, 117-18, 213.)

. '.
28FMSHRC39

The Responaent argues that since no coal was produced· on the maintenance· shift, since
coal had ·n ot been.produced on the morning shift:when the inspector. wrote·the·citation ·and since
it was the company's normal policy to clean:the accumulations on.the shield ~before .resuming
mining;.the:Secretary has not established a reasonableJikelihood· ofan ignition. ~- This,. however,
ignores the length.of time the accumulations were· present;· the.fact . ~aLmaintenance was· ·
performed on the longwall during the maintenance shift; which would mear1 that the.electrical
equipment was activated in addition to the possibility that whatever tools the mafutenance·miners
were using could be a source of ignition, the fact that with the ignition of methane anywhere in
the mine the accumulations·could pi:op·agate and increase the severity=of a fire :o r explosion, and
the fact-that continued normal mining·practices.would involve operation:of·the ·shear. ·
.
.
. · · Accordingly~ I conchide·that the· Secretary has established a reasonable likelihood that a
fire or ·explosion 'involving the accumulations·· would ·occur, resulting in an injury.· It goes without
saying that any injury sustained· in a·fire or explosion·would be a serious one. Therefore,:l ·
conclude ·that the violation was "significant and substantial."

Unwarrantable Failure
This violation was also charged as resulting from the ''unwarrantable 0failure,, of the
company to comply with the regulation.4 The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary:negligence:by a mine operator in relation to a
violation of the·Act .Emery Mining Corp;, 9:FMSHRC ,1997, 2004(Dec: 1987k Youghiogheny,
9 FMSHRC at 201:0-. "Unwarrantable failure is·characterized·by such conduct as 'reckless
disregard,' 'intentional misconduct, ' ' indifference1: or a ' serioo.s lack;of reasonable care.' [Emery]
at 2003-04; Rochester &Pittsburgh.CoalCo,,. 13 FMSHRC 189; 193:..94(Februar}r1991). "
Wyoming Fuel Co., 16 FMSHRC 1618, 1627{Aug: 1994);"see'lllso·Buck·Cteek'Coal, Inc. v.
FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission' s·unwarrantable failure
test).
·
The Commission has established several factors as being determinative of whether a
·
·
·
violation is unwarrantable, including:
[T]he extent. of a.violative condition, the length of time it has
existed, whether the.violation is obvious, or.poses a ·high degree of ·
danger, whether the operator.has been placed on notice that greater
efforts are necessary for compliance, and the operator's·efforts in
abating the violative condition.··Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co;, 14 FMSHRC· .
1258, 1261(Aug.1992);.QuinlamlCoals;1nc., 10FMSHRC705;'
4

The tenn "unwarrantable failure" is taken from section 104(d)(l) of the Act, which
assigns more severe sanctions for any violation that is caused by "an unwarrantable failure of
[an] operator to comply with . . . mandatory health or safety standards."
28FMSHRC40

709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July
1984); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. .
1992); Warren Steen Constr., Inc., 14 FMSHRC 1125, .1129 (J.uly · ·
.1992).

Cyprus Emerald Resources Corp:, 20 FMSHRC 790, .813 (Aug. 199.8).;:
.. '

Some.of these factors·are present in this case. As already noted, the accwnul.ations were·
extensive and obvious. They had existed since the end of the aftemoon.shift;.or appro~imately
six hours. s Further, as the company has admitted, no attempts were made to clean-up the
accumulations between the time·the afternoon shifto shut down and·the time Inspector Gibson
observed ·them. Nevertheles.s, taking ev~cything· into consideration, I do not find that this .
violation resulted.from-the operator~s UiiWafl'antable failure.
Based on the company~s history of. violations, discussions between mine management and
Inspector Gibson,.and. MSHA's : ~'WinterAlert Pro~" the·Secretary argues that-the opei:ator
had been placed on notice that greater efforts were.necessary for compliance in this.area. The .. · '.
Secretary's reliance on these factors is misplaced.
According·to the operator's Assessed Violation History Report, ·the company was cited ·
47 times for violations of section.75.400 between January 2PQl:and Mcu;ch-2004. (Govt. Ex. 9.)
For a mine the size·ofthis·one; that does no.t:seem.to be a significant number of.citations,
particularly since, as Inspector Gil>$0n testified,·section.7S.400 was the most:frequentl¥ cited
section of the regulations, industry-wide; in 2004. (Jr. 136.) Fpr.~·putting the operator on notice
of the necessity for greater efforts at compliance," these citations take on even less importance
inasmuch as none of them were for accumulations·on the shields. (Tr. .135:) Consequently, I do
not find that- the company's previous violations should have put it on notice that -it needed to
make greater efforts to control accumulations on the shields.
The parties stipulated that prio~ to this.:v,iolation "San Juan management acknowledges
several previous discussions with Inspector Gibson concerning the need to clean the shields ef
coal dust accumulations." (Tr. 58-59.) David Zabriskie, the afternoon shift longwall supervisor,
testified that Inspector Gibson.and the·other inspectors were:always·pointing out.areas w:here
improvements could be mad.e, but. that he did not·"consider it a.warning as much as I did good
advice because of their experience." (Tr. 210.) Similarly, Scott Jones, .the·General Mine.
Foreman, said that Inspector Gibson "kind of made comments to me that, you know, you need to
watch your cleanup in that area, you need to make sure that you're continually cleaning those
shields and keeping them up to standard." (Tr. 335.)
5

Inspector Gibson intimated that he believed that the accumulations might have existed
for longer than a shift. (Tr. 110.) In view o.fthe fact that almost.three quarters of the shields had
been cleaned, I find it highly unlikely that the accumulations .on the remaining quarter of the
shields had been there throughout the whole afternoon shift.
28FMSHRC41

However, to raise a violation to the level ofunwamintable failure, there have to be more
than just discussions. As Inspector Gibson testified, .he and·mine officials had had discussions
ever since his first visit to the·mine-. (Ti. 108.) For the discussions to put the .operator on notice
that greater efforts at compliance are necessary, they should be admonishments of that effect.
General discussions between operators and inspectors occur all the time, but they do not make
every violation an unwarrantable failure. As Jones.testified, -neither Inspector Gibson nor the·
other inspectors ever told them that their method of cleaning the shields was inadequate or that
they needed more miners working on the cleanup.· {Tr. 335-36:) Therefore, I do.not .find·that
these discussions put the company on notice that greater'efforts at-compliance.were needed:. ..
;. .

. .. "

The last .type.of notice·that the Secretary relies on "is·MSHA' s ·"Winter Alert Program.". ·
Inspector-Gibson testified that historically most mine explosions occur betweeri'October·and :
March. Accordingly, since the 1970's.MSHAhas had:a·"Winter Alert''. campaign to remind ·
operators of that fact. He said that in the winter 2003-2004, MSHA was emphasiiing
"ventilation, .examination, permissibility and rock dusting}." '(Tr: 110.}' As .with·the general
discussions, there is no evidence·that the company. was -ignoring the ·yearly· alerts or had·a general'
practice of not properly cleaning up· accumulations.· · ·
•, ·
As counsel for the Secretary acknowledged in his opening statement, the Secretary's

foundation for claiming that the operator unwartaritably .failed to·comply with·the regulation ''is
based·primarily on the mine's·management's notice-0fthe·requirements of the Act and a greater ·
need for compliance with:the·Act" ·('fr. 8.) This mtum ~'was based prineipally on many · . · ·
conversations that Mr. Gibson and/or·othermine inspectors·had·had with mine manageihent · ··
...." (Tr. 8-9.) The evidence does not support this Claim.. ·..
· ·· ·
Further, the evidence shows-that the company had two "propmen'" assigned to;each
longwall, whose primary function was to clean the longwall shields: ht addition,:the·operator had
not previously been cited for accumulations orrthe·shields. Thus, while :Hind 1hat·the
Respondent was highly negligent w~th regard to this violation, I do not find that its negligence
rises to the level of reckless disregard, intentional Iilisconduct; 'indifference·or a serious·lack of
reasonable care.
Accordingly, I conclude·that this violation was notthe result ofthe operator's
unwarrantable failure to comply with·the regulation. The citation will be modified' to a 104(a)
citation, 30 U.S.C. § 814(a).
Order No. 4768528 ·
This order alleges a violation of section 75.400 because:
Accumulations of dry float coal dllst·depositoo on·rockdusted surfaces was permitted to accumulate in the #2 and #3
return air entries of the 102 Longwall workiitg section.
28FMSHRC42

-··The accumulations began just outby crosscut #22 and
extended outby to crosscut #1 in both entries including the
crosscuts for a distance of3,000 feet. Methane in both entries
ranged between 0.2-0.4 per centum through the entire distance.
This area was traveled by the weekly·examiner on
03/ 18/04 and.the float coal dust was noted in the record book
countersigned by the mine foreman.
Other violations for this same condition have been issued to·
the operator. One was issued on 2/28/04 that included 3,900 feet
in the #2 and #3 entries of the 102 Longwall.
At crosscut #9 there w[ere] 2 wooden pallets and a
cardboard ·box up next to the stopping.
Numerous discussions have been held with mine
management concerning rock dusting·and clean-up on the.shields. ._
The .condition noted :by the weekly exaniinet was corrected
on day shift on 03/18/04 by two miners. The area was rock dusted. .
Seven production shifts:occurred after the.area was dusted. ·
Approximately 56 passes ·by the·shear w[ere] mined at about .1-;500
tons per pass or 84,000 tons.. Due to.the dryness of the coaland · ·. ·
more float dust being generated, more attention to·the;condition.of
the return entries should have been made by management.
(Govt. .Ex; .11.)

• .i ' . , ~

· .,

.·... ' '

After writing,the.citation for the shields, Inspector.iGibson proceeded ·t o·the.tailgate: ofthe
longwall, to the number 2 and 3 return air entries. He testified that "the area was black with float
coal dust." (Tr. 114.) He related·that there·was a checkcurtain across .the number 3 entry,
directing air into the number 2 entry. He said that he went tln>ough,the,.c urtain into·the number 3"
entry and started heading outby. ·He said both the number 2 ;and 3 entries were.black.with.float,.
coal dust, the "worst" that he had seen. (Tr. 115.) He said .theJloat coal dust:wasdry and ·
continued through both entries to crosscut numb.er 1. Hetesti:fied.;.that:it was··t hickenough that-he
left palm prints on the ribs .and footprints ·on the floor. (Tr. 115.) The.inspector further testified
that he observed two wooden pallets and a cardboard box, also combustible materials, next to the
stopping in crosscut number 9. (Tr. 154.)
Similar to its argument with regard to the previous citation, the company does not deny
the existence of the accumulations, but asserts that since the area had been rock dusted on March
18, four days earlier, it should not be cited for accumulations without a showing that the rock
dusted accumulations did not meet the requirements of section 75.403, 30.CF.R. § 75A03;6 This
argument would be more persuasive if section 75.400 did not specifically require the cleaning up
6

Section 75.403 calls for rQck dusted areas in return entries to have an incombustible
content of 80 percent.
28FMSHRC43

of accumulations of"float coal dust deposited on rock-dusted surfaces.0 Plainly, float coal dust
deposited on rock-dusted surfaces.is dangerous whether.or ·not the ro.ck-dusted surface below it is
incombustible.
Here float coal dust was depo~ited ·on rock-dusted.·surfaces.to such an extent that they
were black. According to Inspector Gibson this was·observable ·right at the tailgate and got
worse down the entries. The deposits were deep enough to. leave hand .and foot-prints.
Therefore, I conclude that.the company violated section 75:400 .as alleged.
Significant and Substantial

·. .

Inspector Gibson charged this violation·as,being ."significant and substantial." He based
this determination on the amounts of float coal dust and the fact that it was very dry so that
"[a]ny forces going through there would :Only.pick the float dust up and contribute1o any forces
of an explosion." (Tr. 117;) He also considered the presence -o f methane in the mine. (Tr. 118.)
He further testified that, in addition to the propensity for the float coal dust t«;>:exacerbate an
existing fire or explosion, the.dust could be ignited by. ~[t]he,shearing machine itself, the
electrical cables along the face,-the lights, under·normal.minjng conditions there's going to be
dust generated and again the potential of as evidenced the metal -against metal cutting bits
contacting the sprags or hard·rock:" (Tr;· 117-18.)
Continuing its argument made concerning the fact of violation, the Respondent contends
that the Secretary's failure to show whether or not the rock-dusted surfaces were incombustible.
precludes a finding that the violation was S&S. As previously noted, this contention is at odds
with the specific recognition in 75..400·that.float coal dust·on rock-dusted.surfaces is hazardous.
Considering this violation under the Mathies.criteria, I have-already found criterion I, a
violation ofamandatory safety standard, section 75.400 . .!'further find: (2) that the.accumulation
contributed to: the safety hazard ofa fue or explosion; {3) that there·was a reasonable.likelihood
that a fire or explosion.would occur.,-resulting in an injury; and (4) that the resulting injury.or
injuries would be serious. I make.these'.findings .for·the same reasons l made them ~concerning
the.previous citation. Accordingly~ I find that the violation is "significant and substantial."
Unwarrantable Failure

Inspector Gibson found this.violation to result from the:company's unwarrantable·failure
to comply with the regulation. He testified that one reason he made this finding was thaUhe
operator had been cited on February 18, 2004, for aceumulations"of float coal dust in the numbers
2 and 3 entries, from crosscuts 20 through 33. (Tr. 122, Govt. Ex. 7.) He.related·furtherthat; :
The violation was extensive, it was 3,900 feet in length.
And some of the crosscuts that I was dealing with on March 22
overlapped at lea8t two ofthe crosscuts that [Inspector Vetter] dealt '
28FMSHRC44

with on February 18. So their awareness was already elevated, I
mean it should have·been, it should have been·elevated, hey, we do
have a problem and it should have been recognized knowing that
· the winter alert you're in that season, the mine's more drier, the
coal's more drier. : And I really felt that they should have been.had a higher degree of care displayed than what was displayed.
(Tr. 122-23.)
The Respondent maintains that since-it was rock dusting·in the numbers-2 and 3 entries,
"at least rock dusting as much as .it thought adequate,".it did not.act unwarrantably. ·(Resp. .Br. at
41.) However, rock dusting is not at issue in this violation, accumulations are. -- :
With regard.to unwarrantable failure; the following factors are significant: (-I) The · ·
operator was cited for float coal dust accumulations .i n.the same ,entries .o n February .1 8; 2004; ., :
(Govt. Ex. 7); (2) A weekly examination report for March 15 noted the need to rock dust the
returns.from crosscut 24 through crosscut 8, (Govt.·Ex; I); (3) A March· 18 co~truction report
stated.that the returns had, been:rock:dustedfrom crosscut."19-to r', (GovLEx. 4)~ (4) By March.
22, the area arthe tailgate.of the longwal1 at the numbers 2 .and J i:eturn .air entries-was black:with
float coal dust, (Tr. 114); (5}The mine ·had been-going throughiough .conditions with·the top,,-·.
which was "real brittlely and falling-in," and.ffoQ.rforthe last couple·ofbreaks, (Tr-.. 288-89);. (6).
When coal on the longwall face is dry, it is not unusual for the bottoms of the return air entries to
become dark or even black over the course of several days, (Tr. 350).
By March.22, the operator had previolisly:been.c ited for·:float c<>al dust accumulations iµ,
the numbers 2 and 3 return entries and it had been alerted a week earlierthatthe entries--needed,
more rock dusting than they were getting. The longwall supervisors were aware that the area in
which they were currently mining was producing more coal particles and float coal dust than
normal. The area of the numbers 2 and 3 entries right at the tailgate was black with float coal
dust. All of this should have put the operator on notice that float coaLdust,was·accumulating in
the return entries at a';pace that required greater:attention than waiting until the next .weekly
examination-.before taking any action to:resolve the problem. Instead, the;company:did nothing·
different than it would nave. done when mining·in "normal" conditions..
··
I conclude that the Respondent acted with indifference and a serious lack of reasonable ·
care with regard to this violation. Therefore, I find that the operator unwarrantably failed to
comply with the regulation. .
Citation No. 4768527 was·tjiepredicate citation for this order. In view of the fact that
Citation No. 4768527 is being ,modi.fi~d to a, 104(a) citation, it can no longer serve as the
predicate for Order No. 4768528. Accordingly, Order No. 4768528 will be modified from a
104(d)(l) order to a 104(d){l) citation. Consolidation Coal Co., 4 FMSHRC 1791, 1794.{0ct.
1982)..

28FMSHRC45

Civil Penalty Assessment
The Secretary ha5 proposed a penalty of $13,524.00 for these three violations.7 However,
it is the judge's independent .responsibilify to detennine the .appropriate amowit of penalty in
accordance with the six penalty criteria set out. in section 11 O(i) of-the Act, 30 U.S.C. § 820(i).
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc.,
18 FMSHRC 481, 483-84 (Apr. 1996).
.
In connection with the penalty criteria, the parties have stipulated that.San Juan Coal is a
large:company, the:San Juan South Mine·'is a large mine and that payment of, the penalty in this ·
case will not affect San Juan' s ability to continue.in business. · (Tr. H-13.) From the Assessed ·
Violation History Report and other documents in the file, I find that the company has a slightly
better than average history of.violations..J further find thatibe Respondent demonstrated·good
faith in attempting to rapidly abate the viOlations.. ·•.
·. :

·•

.

;l find the.gravity of Citation Nos.. 4768527·and 4768528 to be-very.serious as there is · ·
nothing more dangerous in undergrotind coal.mining,than_fires and:ex:plosions; Thtl gravity of. ·.
Citation No: 7605679. is serious, but ·not as serious,as the·other two'because it involves ,levels of·
incombustibility. .I further find that the level.ofnegligencewith regard to Citatiori Nos. 4768527
and 4768528 was "hight?and that the level 'Of negligence for Citation No. 7605679 was
.· ·.
.
:
.,
.
.
"moderate."
··.

....... .

Taking all of these factors into consideration, I conclude that the following penalties are
appropriate: (1) Citation No.- 4768527-$3,000:00; (2}Citation•No·. 4768528-$6,900;00;.and (3)
Citation No. 7605679-$324.00.·

Order
In view of the above;,Citation No: 4768527-is MODIFIED ftom:a 104(d)(l}citation to' a
104(a) citation bydeletingthe"unwarrantable failure"·designation and is.·~RMED· as·.
modified; Order No. 4768528isMODIFIED froma-.104(d)(1}ordertoal04(d)(.1) citation and
is AFFIRMED as modified; and Citation No. 7605679 is AFFIRMED.- San Juan ·Coal
Company is ORDERED TO PAY a civil penalty of $10,224.00 within 30 days of the date of
this order.

1:!£~

· Administrative'. Law Judge ·

.

.

.

7

The penalties are proposed as follows: (1) Citation No. 4768527-$6,300.00; (2) Order ·
No. 4768528-$6,900.00; and (3) Citation No. 7605679-$324.00.
28FMSHRC46

.

..

.

Distribution:
Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin
Street, Suite 501, Dallas, TX 75202
Timothy M. Biddle, Esq., Daniel W. Wolf, Esq., Crowell & Moring LLP, 1001 Pennsylv~a ·
Ave., N.W., Washingto~ D.C. 20004
.
.
/sb

._

.·

. ·.

. : .

28FMSHRC47

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey-Ave.• N.W ., Suite 9500
Washington, DC 20001-2021

Januar)' 26, 2006 ·
SECRETARY OF LABOR, MSHA, and
DAVID BAGLEY, GEORGE GAMBLE
and WILLIAM RICHARDSON,
Complainants,

DISCRIMINATION PROCEEDINGS
Docket No. SE 2005~239-D '· ·.
MSHA Case No. BIRM-CD-2005-01

v.

Docket No. SE 2005-240-D
MSHA Case No. BIRM-CD-2005-04
Docket No. SE 2005-241-D ._
MSHA Case No. BIRM-CD-2005-02
JTh1 WALTER RESOURCES, INC.,
Respondent.

MINE ID: 01-01401
MINE NO. 7
DECISION

Appearances: U.S. Department of Labor, Office of the Solicitor, Heather A. Joys, Atlanta,
Georgia, for the Complainants
Maynard, Cooper & Gale, P.C., Warren B. Lightfoot, Jr. and Janell Ahnert,
Binningham, Alabama, for the Respondent
Before:

Judge Weisberger

These cases are before me based on Discrimination Complaints filed by the Secretary of
Labor on behalf of miners, David Bagley, George Gamble and William Richardson. Each
complaint alleges that Jim Walter Resources Inc. ("Jim Walter") discriminated against the miner
in violation of Section 105 of the Federal Mine Safety & Health Act of 1977.
Pursuant to notice, a hearing was scheduled for December 13, 14, and 15, 2005, in
Birmingham, Alabama. At the start of the second day of the hearing, the parties indicated that
they had reached a settlement resolving all the issues in these cases.
The following is the bench decision that we rendered, with the exception of corrections of
matters not of substance:
THE COURT: ... A short while ago the parties advised me that they have
successfully reached a settlement agreement resolving the issues raised by this
litigation. I wanted to indicate on the record that I am extremely appreciative to
Counsel in this regard. I can tell by the motions that were filed pretrial, by
28 FMSHRC 48 ·

..
yesterday's proceedings that ·the parties put a lot of thought and preparation into
this case. I appreciate their efforts. But most of all I appreeiate the
conscientiousness and professionci.lism shown throughout the trial and, more
importantly, their willingness to discuss settlement and finally having been able
to reach cl- settlement in this matter. In chambers the parties advised me of the
terms of the agreement. I find that the agreement is co11Sistellt with :the terms of
the Federal Mine Safety and Health Act. I approve it. I am thankful for the
parties resolving this matter without lengthy litigation. I feel that the terms of the
agreement are in the best interest of the parties and most importantly consistent
with the terms of the act and constitute their resolution of all the issues herein. Is
there a motion by one of the parties at this time?
MS. JOYS: Yes, Your Honor. Pursuant to the terms of the settlement

agreement and the signing of a settlement agreement, the Secretary wants to._
withdraw her complaint in this matter.· ·
THE COURT: I asswne there i5n't any objection? ·
MR. LIGHTFOOT: No objection.
THE COURT: [The] request to withdraw the pleadings is granted based upon

the settlement in this matter.

..
.

·
..·

•,,

.

.

·! tis Order~d thct:tthe C:!JSe.is cl:ismissed;and it is Ordetfd Uiattbe parties agreed"
by all the tenns of the agreement.
·
· ·

IL~ ·

Administrative Law Judge

Distribution: (Certified Mail)
Heather A. Joys, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W.,
Room 7Tl 0, Atlanta, GA 30303
·
Guy W. Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444
Warren B. Lightfoot, Jr., Esq. and Janell Abnert, Esq., Maynard, Cooper & Gale, P.C. 1901 6th
Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, Alabama 35203 ··

/Ip
28 FMSHRC 49 ·

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-644-3577/FAX-30.3-844-5268

..
.
January 31 ~ 2006

SECRETARY OF LABOR, .

.

. ·.·.. c~~ PENALrr.:r'.RocEEDINGs

. ..•

MINE SAFETY AND HEALTH..
. .,

ADMINISTRATION (M~HA). ·
Petitioner

Docket No~ \VEST 2005-178.- M
A.C.No. 48-00152-:46498 .
Docke~ No. WEST 2005-217-M

v.

A.c. No. 4&-001s2·-48519

FMC CORPORATION,
Respondent

FMC@ Westvaco .~e

..
DECISION

Appearances:

John Rainwater, E~q., Office .of the Solicitor, I.J.S. D~~ent ..
of Labor, Denver, Colorado, for Petitioner;
·
David L. Thomas, Safety Team Le~er, FMC CQtpqrati~n•.-...· .
Green River, Wyoming, for Re8pondent. ·
· ..
· ·· , ·

Before:

Judge Manning

. '

These cases are before me on two petitiQns for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safefy and Health Administration (''MSHA"),
against FMC.Corporation ("f"¥C''), p\l!Suant to s~tions 105 and UQ.of!P.e.Federal Mine Safety
and Health Act of 1977,'30 U'. S.C. §§ ·s 15 and 820 (the "Mine Act"). ~°AdJ;iehearing, FMC.
contested three citations issued by the Secretary under section 104(a) of the Mine Act. The
Secretary see.ks a total penalty of$6,l 10.00 for these alleged violations. An evidentiary hearing
was held in Green River, Wyoming. The p~es introduced testimony and documentary evidence
and presented oral argumen~.
I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINDINGS OF FACT

FMC operates the We~tvaco. Min~, at,l undergrou,nd trona mine in Sweetwater County,
Wyoming. 1 Mark Hom was employed at the mine as a beit electrician on Septeniher 27, 2004:
He had been working at the mine for about 26 years. His j ob was to ensure that the underground
conveyor belts were .operating properly. Th~se belts transport mined rock from the working
sections to the mine shafts at the other end of the mine. The mmed rock traveis underground

1

"Trona" is a soft, nonmetallic mineral that is a major source of sodium compounds. Am.
Geological Institute, Dictionary of M ining, Mineral, and Related Terms 589 (2d ed. 1997).
28 FMSHRC ·50-

about. five miles on these belts. (Tr. 19). He also maintained pumps.and other electrical
equipment. There are ·about eight pumping stations around the,perimeter of the mine. The mine
is a single-level mine.·
.Hom was scheduled to work the graveyard shift on September 27, 2004, which runs from
midnight to 8:00·am. The mine operates three shifts per day. The.belt.control. division of the
mine's maintenance department was assigned one Jeep for use underground. The top and
windshield of the Jeep had been removed. The Jeep is equipped,with·automatic transmission and
a parking.brake. The parking brake is aetivated by a pedal. . The brilkes on the Jeep-often get wet
and muddy as the Jeep is driven through the mine. {Tr. 27). When the brakes are wet and muddy
they are not very responsive. In addition, from time to time the Jeep is ''used so bard that the . ·
brake lines are crushed and brake fluid ·has actually leaked out .o fit-so :that either the front or back
·.:
[brakes are] not ftmctional." Id.

-Hom testified that the parking brake is rarely.very reliable and ~'it never seems-to work
properly." {Tr. 28). Hom said that he.usually eannot feel.the.:parking~brake ratchet down when
he pushes the pedal and that the pedal is bent from being pushed down so hard. The Jeep was
converted to operate on diesel fuel rather than gasoline; .When·this,conversion was:made, the
dash board was not properly reconnected,·with the result that noneofthe gauges-work; including
·
the speedometer and brake warning light. {Tr. 29;··Ex; G-1 );
. .

~

was

On September 27-Hom
driving the Jeep underground-t<>various-pumping stations to
adjust-the water. flow. He was-.traveling from crossover station in 2 West toward .the No. 8.Shaft·
when he arrived·at a·set ·o f air, doors.:. These·doors·must be·kept closed to· maintain .the ventilation
in the mine. Hom par.ked:his..Jeep,,. opened the·door, drove threugh;the doorway, and.parked·his :
Jeep again.· Hom testi'fied.thatwhen:he parked his Jeep'this second~time, he·putthe·vehiclefa
park, stepped on the parking brake; and put.chocks under one of.the wheels. (Tr;·33-34; Ex..G3). He did·not tum off the engine: Hom.walked~back, . closed the·.air door, and:removed.the
chocks from the wheel. Hom thought he heard··the air rushing aroUiid:the air,door. He·wondered
if he had forgotten to close the vent on the door. The vent.must first be opened before;the air ..
door can' be opened or closed to.equalize the pressure on .both sides.of the door. ~Tr. 37.;39; Ex.
G-2). When he turned to face .the air-door he noticed that the vent was1closed·but he went over to
the door to see if it was fully closed. He picked up the chocks, which were·on the ground. As he
turned back to face his Jeep, he felt something hit him and he.was knocked backward against the
door. {Tr. 39). When he·realized that the back of the Jeep was pushing·him against the air door,
he took the chocks and tried to wedge them between the backbumper-and:the·air-door before the
Jeep "smashed.[him] and the door." {Tr. 39-40). Hom ·estimates-that he had parked the Jeep
about 20·to 30 feet from the air door. The ground was level in thatJocation-.· It was·about 3 a.m.
when this accident occurred. (Joint Stips. 1 10).
The Jeep hit Hom hard despite his efforts to wedge the chocks between the vehicle and
the door. He believes that he may have passed out momentarily. He was in a sitting position and
he was unable to move because ltjs chest·was wedged between the biimper. and the door. He
28-FMSHRC 51

could hardly breathe. (Tr. 42). He was able.to wiggle a little and when he looked ·under the Jeep
he discovered that his right foot was under the left·wheel. The.Jeep was-still nmning as he· trieq
to extricate himself from his position but his knee was also stuck in the undercarriage-of the Jeep.
He tried to grab bis right leg to pull his foot out from under the wheel, but he was not successful.
He reached into.the back of the Jeep, opened-the door; and started pulling things .he c.o uld-reach
out of the Jeep. '(Tr. 44). He did not find anything he ·c ould use to help him get his·foot out.
The diesel exhaust was .very strong and between not. being able .to breathe very well and
the fumes, Hom believes-thathe passed.out .again.' When he awoke, he tried-again..to pull his
right foot out from under the wheel ofthe Jeep. Because he.was in ..a remote location, he realized
that it was unlikely that anyone would find him any time:soon. After much work and
maneuvering, Hom was.able to extrieate .his foot from under :the wheel. (Tr. 45-46);' With·a lot
of effort, he was able to get himself up into the driver's seat of the Jeep. He drove the Je~ .up to
the second air door and slowly pushed it open with the Jeep. He then drove to belt-control, got
out of the Jeep:, and called the hoist man; He. ~as. barely abl,e to breathe at that point. Hom was
taken out of the mine and then.to the.hospital in Rock Springs, Wyoming. ·
.
.. ..
. :
. "' ·· .
. Hom testified that he inspected.theJeep before.he drove it that night. (Tr. 52-53);. He
looked underneath the Jeep to.see·ifbrake.tluid was leaking...He also applied·the·brakes.ashe
backed out of the parking space to make sure that they were working. The-Jeep.was in its usual
condition and he did not find anything that would keep him from using it. (Tr. 60). The power
steering was leaking flui<:l and the brakes were not as ~'good·as ;they. could hav.e been;~~ :but" he
assumed that the:brakes wete simply wet Id.. ·lf-h ehad:.detennined.thatthe leep:was:not·safe. t.o ..
operate; ·he would·not hav.e been required·to use it, buthe,would ha:ve:had to~borrow- one from
another depfll1ment. .He also·has·the authority to·tag:outa Je.ep.ifitis not safe to operate. · ('Ir~ ·
62). Rom admitted·that in the early 1980s he.took:annual refresher=safety:tests.given by EMC in
which he was asked to explain the procedure for blocking mobile equipment: in-the mine. ·-(Tr.
64-67; Ex. R-7). Hom responded that the .equipment. operator should.~'kill engine; set brakes, use
wood blocks to block both sides of wheel.'! (Ex~ R-7). ·Hom testified·that he.uses thatprocedure
when he parks the Jeep at the end of his shift::-He testified that he does not shut offthe engine on
a flat surface when he is .only going to be off.the Jeep fora moment because.of his.conoom that
he may have difficulty .starting it again. (Tr. 68)~ Hom said that the starter motor sometimes gets
wet while driving Through water.in the ·mine.
· Hom suffered.extensive injuries as.a result of this accident. His internal organs.were
pushed up through his'. diaphragm.into his left.lung cavity. (Tr. 112-13). After the extent of bis
injuries were identified.at the Rock Springs hospi~ he was air lifted.to the LDSHospital in Salt
Lake City, Utah, where he underwent surgery. · Complications resulted from his surgery-and he
had to be hospitalized again. (Tr. 117-124). Hom is·still employed by ·F MC, but he is unable to
work at the present time.

On September 30, 2004, MSHA Inspector Duane.Coats traveled 10 the mine ·to· ·
investigate this accident. On October 4, 2004, he traveled underground to examine the area::.

28 FMSHRC' 52

where the accident occurred, (Tr. .189).· At the.conclusion of his investigation? Inspector Coats
issued three citations related to 'this accident.- During his.investiga.tion, Inspec~or Coats
interviewed Gene.Hutchinson CJD.d other FMC employees. (Tr. 165). Based _o n these interviews,
Inspector Coats concluded-that mQunti,p.g_bolts on the transmission and engine lui.d come loose,
allowing the transmission.to slide to the:right side so t4atwben.J}le Jeep ''was placed in park, it
would not go all the way in park." (Tr; l_-66).. As·a -result, theJeep co~d . e.asily s~ip out of park
into reverse. (Tr. 167). Inspector Coats also concluded that the parking brake on the Jeep was
not working at the·time of the accident and, if the parking brake had :be~ .wo.rking;."it wo.ul_d
have held the :vehicle in·place on level ground if ithad slipped fro.pi park to reverse as it d~d." _Id.
.

.

Gene Hutchinson testified at the hearing.under a subpoen.a .from the S~cretary: He.is a:
diesel mechanic .at the mine.·: Although Gene.Hutchin$on was not involved in FMC's . ·. . : .:
investigation of the.accident, he repaired the Jeep at the conclusion of the acc~dent investigation.
(Tr. 130). The work order that he was given said that the parking brake was not wod<lng and that
the transmission may have slipped-out of park.. (Tr. 130, -13.3). · In additjon, he:discovered that
the neutral safety switch was not.working; .The n~utral s~fety. swjtch,whichis-a ')vhisker~· .
switch, allows the Jeep to be.started only when it is in park: 11:t,this ill$tance, th~ Jeep,could be
started in any gear. (Tr. 136, l54).: This switchwasperma,nentlyb<mt over. (Tr;_154)~ : .
Upon examining the parking brakes, Gene Hutchin$on detennined that the parking.p~es
did not work on either rear wheel. (Tr. 137-40, 149-51). He had to replace the entire- brak~
.
caliper system. The combination of trona and water tends to corrode the brakes. Because it was
the calipers-that were broken, rather.than the,pCJI'king brake.cable. the rear disk brakes-were also
not engaging when the service brakes were depressed, · (Tr. 14l ) . .The .hydraul~cJjn.es us,e4,wi1;h :
the service brakes could not activate the disk brakes because the calipers were not working.

..
Gene Hutchinson also had to replace the ti:ansmission·mount and the.left front motor
mount. (Tr. 141). The mount is a bolt that is used·.to attaeh a,part to.the.vehicle. .ln examining
the Jeep, he discovered that the transmission mount had broken away from the pan it was
mounted .on. ( See also Joint Stips.•.'if:18).. This was,the only mounting:device on the ·
transmission... (Tr; 142). . Gene·Hu.tchinson believes th~t because the transmissionmountwas.
missing and one of the two motor mounts was missing; the.transmission assembly:could move .•
around a little. (Tr. 142-43). He,believes that.this·movement "may:.have put a stress on that ·
shifting lever that hooked to the transmission·from the.shifting·column. ~· ..(Tr. 143}; This -stress.
could have caused the transmission to pop out of park into reverse. (Tr. 143, 146). Gene
Hutchinson believes that,·iftheparkingbrake.had.been working; and the .transmission ~onthe
Jeep had popped.out ofpark into reverse.while the·engine was idling;.the parking,brake.would .·
have been able to hold the Jeep in .p laceon a level surf~e. (Tr.. i4144); The Jeep was repaired.
by replacing the transmission·system so. that the ge.ar-shifHever is now mot1nted directly to the:
transmission on the floor rather than through a lever on the steering.colunin. ·· ··
..

Following his investigation, Inspector Coats issued,Citation No. 6302200 under·section ·
.
104(a) of the -Mine Act alleging a violation afsectioii .57.1410l(a)(2) .as:follows: ·.
28. FMSHRC 53

A miner was seriously injured··at this inine on 'September 27, .2004 ·
when ·he was struck and 'pinned·beneath the·rear wheel ·of.his Jeep.
·The miner had parked the Jeep and was closing the .air door when·
the Jeep started rolling backward and struck·him. The·parking··
brakes on the Jeep (Company No: 25 UM) were inoperative and
would not hold the parked vehicle on a 'grade.

,·

(Ex. G-4): Inspector Coats determined that an inju.ry occurred and that the inju.ry could
reasonably be expected to result in lost workdays or restricted duty. ·He -determined that the
violation was of a significant and substantial nature ("S&S") and that FMC's negligence was
moderate·; The·safety standard provides, in·part;that"[i]f equipped·on self-propelled mobile
equipment, parking brakes shall' be capable of.holding the equipment with its typical:load on the
maximum grade·it travelS." The Secretary·proposes a penalty of$S,500;00 for-this citation.
1

~

'

Although the Jeep Was parked on level ground, the safety standard requiresthatthe
parking·brake be capable of holding a vehicle-on the maximum grade.that it travels; .(Tr: 169).
He determined·that the violation was S&S because.an accident.occurred that.resulted-in a serious
injury. (Tr. 170). Inspector Coats was·told by Gene Hutchinson that the rear brake calipers wete
not working. (Tr. 195-96). Hutchinson did not tell him whether the calipers were working on
the date of the accident. Id. Coats was·notable to·determine when the parking:brake cea8ed to
operate. ' (Tr. 315).
Inspector Coats also issued Citation.No. 6302201 under section 104(a) of the Mine Act
alleging.a-violation of section 57:14101(a)(3) 38 -follows:
·<
All braking systems were not maintained in functional condition on
the Jeep (Company No. 25 UM). The brake calipers for both-rear
service brakes were nonfunctional:
(Ex. G-5). Inspector Coats determined that an injury was reasonably-likely and that the injury
could·reasonably be expected to be fatal: He determined·that the violation was S&S and that
FMC's negligence was moderate. .The safety·standard provides, in part, that "[a]U·braking ·
systems installed on [self-propelled mobile] equipment shalf be·· maintained·in functional
condition." The Secretary proposes a penalty of$305.00 for.this citation. ·
The inspector concluded that the braking systems were not being maintained in a
functional condition on the Jeep .. (Tr. 171 ). The calipers for the rear service brakes were not
working. He bases this conclusion on statements made by FMC employees. {Tr. 172). He
concluded that the-violation was S&S-because the absence of working rear brake·calipers-cowd
cause a fatal accident. These·rear calipers must be furictioning f6r the rear-service brakes :to · ·
engage and for the parking brake to engage. Only the front service brakes were working on the
Jeep.·· If the-operator of the Jeep were driving in a congested area, he might not be·able to stop in
time to avoid a pedestrian. .(Tr; .174). Jn addition, if.the front brakes were to ·cease functioning,·
28FMSHRC 54

the Jeep would not have any brakes. (Tr. 175). Given the wet, muddy conditions in the mine,
the inspector believed that it was reasonably-likely that the effectiveness of the front braJc:es.co11ld
easily become compromised. Nevertheless, the inspector testified that if.the .front hr~es; were ...
working, the Jeep could·be stopped. (Tr. 197). The J ~ is:desigp.ed with two separate hydraulic
chambers so that, if the rear brakes fail, the front brakes will still function. (Tr. 118-19) Coats
does not know when the rear service brakes stopped working. (Tr. 316).
Inspector Coats also issued Citation No. 6302202 under section 104(a) of the Mine Act
alleging a violation of section 57.141 OO(b) as follows:
The neutral .safety switch was not maintained in functional .
condition on the Jeep (Company No. 25 UM). This.safety defect .
enabled the Jeep engine to be started while the transmission was
._
engaged in gear.
(Ex. G-6). Inspector Coats.determined that an injury was reasonably likely ~d. thatthe injury

could reas,onably be expected to be fatal. He determined that the violation was S&S,and:that.
FMC' s negligence was moderate~ The safety ·standard provides, in part;. that"[d]c;:f.ects on;any. .
equipment .... that affect safety shall be corrected in .a timely.manner .to prev.ent the creation of a
hazard to·persons.,. The Secretary proposes a penalty of $305.00.for·this citation;:.· ·.
. Inspector Coats testified that be issued.the citation because.the'Jleutral safety _switch o.1f;
the.Jeep was not working. (Tr. 177). As a result ofthis defect, the Jeep could.be,startecl:in any,: ·:
gear. When .the neutral ·safety switch is working, the. Jeep·can only be started·. in park o.r neutral.·
The inspector testified that the cited condition is a defect that affects·safety because the Jeep.: , ~
could lunge forward or backward as the operator was starting it. {Tr. 179). He determined that
the violation was S&S because it was reasonably:likely that an employee would"start the leep in
an area congested with pedestrians. and pin someone against.a rib or another.v.ehicle. (Tr. J80).
Because_, the Jeep could pop out of.park; .the operator of the Jeep might.not know that it. was
actually in·reverse when he started the engine.and it could jerk backward. {Tr. 180-8.l ). He . .
admitted.that many people put their foot on the brake when they start a vehicle .but,. since1the.
brakes were not working properly, the Jeep could have jerked backward.anyway. (Tr: 19~-94).
If the idle on the Jeep were set low, the Jeep would not lunge but it could move a "little bit.'.' (Tr.
194).
MSHA Inspector Tom Barrington interviewed Mr; Hom at the LDS Hospital in Salt·Lake
City. (Tr. 208-11 ). During the interview; Inspector Barrington took notes; but they are not ·
verbatim. In response to the question, "Did you set the brake?," Inspector Barrington.wrote:
It was in park when I got out. They told me they checked the
brakes and the park brakes didn't workat:all. They probably ·· · :
hadn't worked since I mashed them the first of the shift. :I probably
rode aromtd with them on without knowing it.

28FMSHRC55

(Ex; R-9; p. 3).· Later in the interview, Hom was asked how he .thought the Jeep rolled;onto him:
Hom ·responded ·by stating:
It slipped out -o f park into reverse. I was told that it happened on ··
the second shift after me. The parkbiakes.and transmission were·
always broke. A wheel even-fell off once. The park-brake virtually
never worked. There was something always wrong with it.

Id. at 5. Neither party called Inspector Barrington-to testify at the hearing. On October 12, ·2004,
Inspector Coats, company representatives, and a union representative held a conference call with
Mr. Hom while he was in-the hospital in Salt Lake ·City. David Hutchinson testified that Hom
remembered performing a pre-shift examination but he could p.ot remember whether he set the
parking brake when he got-out of the Jeep at the air door. · (Tr. 262-63). :
Ken Lacey, who is also a belt electrician, was called by FMC to testify. He testified that
he worked the swing.shift immediately prior to· Mr. Hom' s .shift: He washed:the Jeep, changed·a
headlight; and checked .underneath the Jeep;· (Tr.·82). He .said that everything looked good. -. · ·. · ·
(Exs. R-2 & R-3). ·He .testified that he checked the brakes during his pre-shift ·examinatjo~ but ·
he did·not look ·at the braking ·system when he crawled underneath the Jeep~ {Tr.·85). The only
way to see if the brakes :are "plugged·up" is to:take:offthe·wheels, Id. . Lacey did.not find any · ·
other problems with the Jeep and it operated well throughout his shift. (Tr. 90). If he had found
safety defects on·the Jeep, ·he would have used another Jeep-. Lacey has had·problems with the
transmission popping·out of gear from park to reverse on that Jeep. :(Tr..95.-98,.102-06}; Lacey
testified ,that he always turns·off the engine when.he gets· off the Jeep, even.when he isjust·
opening an air door; .(Tr. 103, '106).
David Hutchinson is the mine' s safety.coordinator. · (Tr. 246). He.oversaw FMC's·
investigation ofthe·accident. The Jeep was first.examined where Horn ha:cl.left it. .(Tr: .251).
When the parking brakes were tested, they would not hold the vehicle. Id. · Wherrthe service
brakes were tested, they stopped the vehicle. The ·neutral switch was-observed·out of.position.
The Jeep was taken to the shop for further examination. The other problems«liscussed above;
including the missing motor and .transmission mounts and the defective·rear brake calipers were·
discovered.in the shop.
FMC determined that there were several "immediate" causes of the accident: failure to
follow procedures and defective equipment. ·(Tr. 264;: Ex. R-6) ...FMC ·believes that Mr. Hom
should have turned off the engine and kept the chocks ·around the wheel until he was ready to
drive off. It also concluded that it was not certain whether Hom set the .p arking. brake. (Tr. 26223). In addition, the transmission mount and motor mounts were missing.
Michael Burd was on the safety committee ef.the union at the: time of the·accident. He
was also on FMC' s accident ·investigation team. . His testimony is consistent with the testimony
of David Hutchinson, set forth above. (Tr. 281-89). . Garth Mitchell is the maintenance

28FMSHRC56

coordinator at the mine. (Tr. 290). He was on the accident investigation team. As stated above,
on the morning of September 27, it was determined that the parking brak~ was not working and
the neutral safety switch was out of position. (Tr. 291 ). On September 28, the Jeep was .
examined in the shop to find everything that was wrong with it. (Tr. 293). The cable for the
parking brake was working, but the rear brakes were caked with;muck and the brak~ ~alipers
were not working. (Tr. 295). Jn addition, a motor mount and transmission mount had broken
loose and the crossover bracket that.holdS. the.transmission in .place was broken. '. (Tr:·.296). The
Jeep·w as repaired:and overhauled:before it was put back.into·serviqe. MitchelHestifi~ that this
Jeep is the most .used vehicle. in the mine. (Tr. 297). .Mitchell testified that it is im,pos.sible to·
determine when the parking brake stopped working.
Daniel Haanpaa is a .mechanic .in the diesel. shop at. the mine. He is also on the union
executive committee. He testified that whenever a vehicle had.problems at the mine, its .operator
should bring it in for repairs. (Tr. 307). The 25-UM Jeep broke down ''pretty often'~ because of
its heavy.use, but there were no safety complaints. (Tr. 308). He participated in the conference
call with Mark Hom.when Hom.was in the hospital·. Hom could.not remember whether he set
the parking,brake. (Tr. 3.09; 311 ). If Hom•had .shut off.the engine, the aceident would not have .
occurred.
.'.

An underlying dispute in this:case is. whether FMC was required to immediately advise
MSHA that there had been a life.;threatening accident under the provisions of30..C~.R. Part SO.
FMC·believed that it.was not-required to immediately ·report the accident because Hom's injuries
were not life-:-threatening. (Tr. 248). The Secretary contends that- the injuries ·caused b.y the ' .
accident were life.threatening and that FMC was obligate<i:to immediately advise MSHA of._that.
fact. ·At about.7:00 a.m. on September 27, FMC notified MSHA' s.office in.GreenRh~er. that.an .
accident had occurred; b:ut FMC did.not indicate that the accident resulted in alif~threatening
injury. {Tr. 248-49, 321-26). MSHA did.not-start its investigation of the accident:until
September 30, 2004. Because this issue is not before me, I have not attemp.ted to resolve it in.
this decision.

. IL DISCUSSION WITH FURTBER. F1NDINGS
AND.CONCLUSIONS·OF. LAW
. The Secretary contends that she established the violation:set forth in each citation.as
written. FMC argues that the cited safety.standards.are performance-based standards. It
contends that there is no dispute that-the company.has a very good ·s afetyprogram which·requires
equipment operators to perform thorough pre-shift .examinations. The examination performed on
the previous shift· and the examination performed by Mr. Hom did not indicate that the brakes
were not working or that there were any other problems with the Jeep; The parking brake·cowd
have failed between the beginning of the shift and the accident. The company has an excellent ·
preventive maintenance record, but it cannot be expected to guarantee that nothing will break
down during the shift after the equipment. operator performs his pre-shift examination. Mr. Hom
was interviewed twice, once by Inspector Barrington while he.was in intensive tare, and once

28 FMSHRC: 57

during a conference call with MSHA,.company management, and union officials. 'Both times;
Hom could' not be sure that he engaged·the.parking.brake. It is the responsibility of.mobile · =
equipment operators to report any safety·problems on their equipment.

Al Citation No. 6302200
I find that the Secretary established a violation·of 57.14101(a)(2). ·The parking·brakes on
the·cited Jeep.were not working at:the time they were inspeeted·by FMC following"the accident.
The Jeep was tagged out by.FMC ~ s investigation.team after the accident and was not,used until
after it was refurbished by the maintenance department. Substantial evidence .presented at the
hearing establishes this violation and FMC stipulated that, "as a result of the September 28,
2004, examination, FMC mechanics.determined that the park brake·on the Jeep·(No. 25UM) did
not work.or otherwise·function." (Joint'Stips.1jl5). ·
· . FMC maintains that the Secretary did. not establish when the parking brakes became
defeetive. It argues that ·Mr. Hom and Mr; Laceyperfonned pre-sbiftiexaminations·and .. ·
determined that the·braking systems on the·Jeep were functioning. I find· that; given the ·sequence
of events, the preponderance of the evidence established that the parking brakes did not work'at ·
the time of Hom's accident. The defective parking brake was immediately discovered by FMC
mechanics; Gene Hutchinson, ·a ·diesel meehanic at·the mine, testified that the=ealiper that
activates the parking ·brake and the .rear service brake was corroded. (Tr. 149).-.. He·stated that · · ·
wet trona gets into the braking system·and .corrodes·the moving parts=ofthe=brakes so that-these
parts can no· longer move or function; .(Tr.:150): · I find. that this·corrosion cannet h'3p'pen during
a single shift and that it is·more likely than not that the·parking brake·did not'meet the. .. ". . . . .
requirements of the.safety.standard prior to the·begirinirigo£Hom"s shift. The standard re<tuires ·:
that the parking biake·be "capable.of holdfug the equipment with itS typical .load·on the· ·
maximum'grade it.travels." The evidence establishes that the parking·brakewas not capable of
holding the,vehicle on .any. grade.
FMC also argues that Hom told MSHA investigators that he may not have set the parking
brake when he stopped ·t he Jeep and·that hemay;have damagetHhe' parking brakes earlier in the
shift by driving with the parking brake·:engaged. Even if.I-credit this evidence, it does not
contradict my finding that the parking brakes were defective at the time of the accident. In
addition, I take·notice ofthe factthat . when semeone has:been severely injured in an accident, he
experiences a wide range ofemotions following the.accident, iri.cluding feelings of guilt and selfdoubt. Hom was in the ICU when he.was ,interviewed by MSHA Inspector. 'Barrington and he
was still in the hospital: during the subsequent conference·calL At the hearing, Hom testified that
it was his normal·practice to set the parking brake and that he had done .s o that night It is
unlikely that he would .remember to put chocks under the wheels, but forget to set the parking
brake.
· . .. · ·· ·
I·also find that the violation was serious and S&S. A violation is classified as S&S "if
based upon·the facts surrounding the ·Violation, there exists a reasonable likelihood-that the ·

28 FMSHRC'58

hazard contributed to will result in an injury or illness of a reasonably seri~u~ nature." National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984), the.Commission-set out a foun-part test for analyzing S&S issues. Evaluation of
the criteria is.made assuming·"continued .normal mining operations.:' U. S. Steel -Mining Co.., 6
FMSHRC 1573; 157;4-(July-1984).. The qµestion of whether a particuJar violation is. S&S\lllusf
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 re.asonable
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.
U.S. Steel Mining.Co.., 18 FMSHRC 862,.865·(June 1996).
The Secretary established all four elements:of.the Mathies test. · Mr. Hom was seriously
injured as a result of this violation. Although the accident would not have occurred if the
transmission system were worki:Iig properly or if Mr, Hom had shut off. the.engine, the injurie5
sustained by Hom were directly related to ~this violation. The violation is clearly S&S. : . ...
FMC argues that it was not negligent with.respect to this.:violation.. It.maintains that the ·
company reasonably relies on its maintenance program and the equipment operators' pre-shift
examinations to keep mobile equipnientoperating,safety. FMC -argues that .M SHA!s safety
standards with respect:to·mobile equipment are perfonnance..oriented regulations.with·the·result
that it should not be.held.negligenl:unless safety.defects.reported.by equipment-.operators are not:
·, ·
promptly,repaired.
I .findthatthe preponderance of the evidence establishes:that FMC' s negligence with·
respect to-this violation .was. "high.',. The Jeep involved in the accident was in.appalling ·
condition, as described.above. ·It is undisputed that this Jeep is used.more than any .other vehicle
at the mine. The transmission was not fully secured to the Jeep with the result that the vehicle
popped o:ut of park into revex:se. Tiris condition.had:been-reported in the past, Indeed, the
crossover. bra~ket that holds.the-transmission in place .w as broken. ..One of the engine.mounts ·
was missing. The Jeep could be -started in -any gear. The.rear service brakes as w.ell as the
parking brake did not function. Hom testified.that·the Jeep was often in poor operating
condition. He stated that often when he-engaged the parking brake, he could·not feel it·ratchet
down. Given the extensive wear and tear to which thisJ:eep was subjected, :it'was incumbent on ·
FMC to closely monitor the condition of the Jeep and keep it in safe operating condition. As
stated above, I find that the parking brakes did not suddenly become defective during.Hom' s
shift and that FMC failed to ensure that its maintenance program kept the parking brake in good
operating condition. This violation was a eontributing.factor in Mr. Hom~s accident. .A penalty
of$6,00Q.OO is appropriate for,this violation.

28FMSHRC 59

B. Citation No. 6302201
· I find that the Secretary established a violation of 57.l410l(a)(3). ·The·rear service-brakes
on· the cited Jeep were not working at the time they were inspected by FMC following the
accident.-· The Jeep was tagged:ourby FMC's investigation team.· Substcintiarevidence.presented
at the ·heariitg establishes this violation and FMC stipulated that, "as a:result'Ofthe:September 28,
2004; examination, FMC mechanics·determined that the rear service·brakes orr .the Jeep {No: :
25UM):did not·work or otherwise function." (Joint Stips. 41116); The safety·standard requires that
all braking systems must be "maintained in a functional condition."
.. .
.
•. •
;

· · FMC maintains·that the Secretary did not establish that the rear service brakes were not
working at the start of Hom's shift. It also contends that this alleged violation:is ·Unrelated to the
accident. The Secretary is not contending that this violation caused the accident or was related to
Hom~s injuries. l find .that a preponderance of the evidence establishes that the rear.ser\rice
brakes were not working before:the start- ofHom~s shift..'The corroded:calipers that caused the ···
parking brakes to cease functioning.also caused the rear service brakes to· fail. ·The parking·brake
cable actuates·the same brake·pads as the rearservice·brakes:. The. calipers must·be furictioning ·..
for either braking system to work. As I stated with respect to the parking brake violation, the
·· ·
brake calipers did not become plugged:up and corroded ·durjng·a ·single shift.
.., .
I also find that the violation·was serious.and S&S: ·W ith only the front service·brakes
functioning~ it is reasonably.likely that the.hazard contributed to by ·the· violation will result in ·an
injury.of a reasonably serious nature. ,If the operator of the·Jeep were operating-in a congested· ·
area, he might not be able to stop quickly enough to avoid a pedestrian. The Jeep·was subjected.
to wet, muddy conditions that are likely to compromise the effectiveness of the front service
brakes. As stated·above, wet trona tends.to corrode working parts' of:the Jeep. :Tue;fact that this
Jeep was not well maintained makes it likely-that, given continued mining operations; ~the front
service brakes would have started to fail ·before the condition·was corrected.
:.
For the reasons set forth with respect to·Citation No. 6302200; I find that the evidence .. ··
establishes .that FMC's negligence was high .. The braking systems.-on this.Jeepwere in:poor ,
condition. As stated above, I find that the rear-service brakes did not-suddenly beCome defective
during Hom' s shift and that FMC .failed.to ensure that its·maintenance program kept the brakes
in good operating condition. This violation was not a contributing factor in Mr. Horn's accident.
A penalty of$350.00 is appropriate forthis violation.

C. Citation No. 6302202
I find that.the Secretary established;a ·violation of 57..14100(b). The ileutral·safety switch
on the cited Jeep was not working at the time the Jeep was.inspected .by FMC fol1owing·the
accident. The Jeep was tagged out by FMC's investigation team. Substantial evidence presented
at the hearing establishes this violation and FMC stipulated that, "as a result of the September 28,
2004, incident investigation and examination by FMC' s investigation team it was determined

28FMSHRC60

that a mechanism that prevented the:Jeep (No. 25UM) from starting when the automatic
transmission·was·engaged in a forward or reverse gear did not work or otherwise function."
(Joint Stips. 1[ 17).
The safety standard provides that safety defects on equipment shall be corrected in a
timely manner to prevent the creation of a hazard; FMC contends that because this defect had
never been reported by any of the operators of the Jeep, FMC did not have the opportunity to
correct the defect in a timely manner. David Hutchinson testified that the defective.condition of
the neutral safety switch was observed upon opening the hood at the location.where Hom left the
Jeep. (Tr. 251). Garth Mitchell observed the condition as well. (Tr. 291). The defect was
neither difficult to find nor was it hidden or latent. The Commission has held that "[w ]hether the
operator failed to correct [a] defect in a timely manner depends entirely on when the defect
occurred and when the operator knew or should have known of its existence." Lopke Quarries,
Inc., 23 FMSHRC 705, 715 (July 2001). It is not entirely clear when the defect occurred. Gene
Hutchinson testified that the switch was in a ''bent-over position." (Tr. 154). I find.that the
preponderance of the evidence establishes that this•.condition had existed for more:than one shift.
It is highly unlikely that the·switch suddenly:became defective on Mr. Hom's shift. · Although it
is clear that FMC did not know that the neutral safety switch was defective, I find·that.it should
have·known that it was defective. As stated above,"the FMC investigation team easily discovered
the defect during their initial examination of the Jeep.
I also find that the violation was serious and S&S. I credit the testimony of Inspector
Coats that it was-reasonably likely that a miner would start the Jeep in a congested area and strike
a pedestrian. Because this Jeep could pop out of park, the operator of the Jeep might not know
that it was actually in reverse when he started the engine. As a consequence, the Jeep could lurch
backward and strike someone. The fact that onl)' the front service brakes were working increased
the danger. Because this Jeep was not well maintained, it was more likely that a serious accident
would.occur.as a result ofthis·violation, assuming continued mining.operations.
I find that the evidence establishes that FMC' S· negligence was moderate, as·alleged by
the Secretary. .FMC should have detected this violation as part of its preventive maintenance
program. This violation was not a contributing factor in Mr. Hom's accident. A penalty of
$300.00 is appropriate. 2

III. APPROPRIATE CIVIL ·PENALTIES
Section l lO(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The record shows that the mine has a history 167 paid violations in
the 24 months preceding the inspection and that all but 14 of these violations were non-S&S. In
2004, the mine worked about 1,562,568 total man-hours making it a relatively large mine. All of

2

FMC also contested three other citations in WEST 2005-178-M. By order dated August
26, 2005, I approved the parties' settlement of those citations.
28FMSHRC61

the violations at issue in these cases were abate(i jn good faith. 1Jie penalties assessed in this
decision will not have an adverse effect on FMC's ability to continue-in bus_iness. My gravity
and negligence findings are set forth above. Based on the penalty criteria, I find that the penalties
set forth below are appropriate.
.·· .
.IV. ORDER

Based on the criteria in section llO(i) of the Mine Act, 30 U.S.C. .§ 820(i), I.assess· the
following civil penalties:
·Citation.No. .

. 30.C.F;R.,§

Penalty

. 57.14101(a)(3)
. 57.14100(b)
62.130(a)
62.130(a}
62.130(a)

-$350;00
:300.00
Previously Settled & Paid
.. .PreviouslySettled & Paid .
Previously ,Settled& Paid

WEST 2005-178-M
6302201 .
6302202
7914705
. . 7914706
7914707
WEST 2005-217-M
;

6302200

57.1410.l(a)(2) .·

; ;

' ··

·

.'. 6,000.00.
·.

I

.. .. .

-: . ·;

. :. ·:

TOTAL·PENALTY

{.

• S; ·.

•

$6,650.00

For the reasons set forth above, the. three citations are-AFFIRMED as modified.in this
decision. FMC Corporation is ORDERED TO PAY the Secretary of Labor the sum of
$6,650.00 within 30 days of the date of this decision~

Richard W. Manning
: · Administrative Law Judge; ·

28FMSHRC62

Distribution:
John Rainwater, Esq., Office of the Solicitor, {)'.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)
David L. Thomas,..Safety TeamLeader, FMC Corporation, P .0. Box 872~ Green ~ver, WY ·
82935-0872 (Certified Mail) · .
·..

RWM

. -:

28FMSHRC63

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, D.C. 20001

February 8, 2006

XAVIER F. GONZALEZ,
Complainant

·.

DISCRIMINATION PROCEEDING · ·
Docket No. WEST 2005-288-DM
RMMD05-05

v.
RINK.ER MATERIALS CORPORATION,
Respondent

Rinker Green Valley
Mine ID: 02-02643

DECISION
AND

ORDER PARTIALLY SEALING RECORD
Appearances: Steven G. Sandoval, Esq., Law Offices of Steven G. Sandoval, P .C.,177 N.
Church Avenue, Suite 1008, Tucson, Arizona 85701, for Petitioner
Katherine Shand Larkin, Esq., Jackson Kelly, PLLC, 1099 18™ Street,
Suite 2150, Denver, Colorado 80202, for Respondent
Before:

Judge Bulluck

This case concerns a discrimination complaint filed pursuant to Section105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3). Xavier Gonzalez alleges
that he was unlawfully terminated from employment by Rinker Materials on December 9, 2004,
due to a work-related injury that he incurred on December 8, 2004. He seeks reinstatement with
back pay, damages for emotional distress and attorney's fees.
A hearing on the merits was convened on November 29, 2005, in Tucson, Arizona,
during the course of which the parties engaged in discussions and negotiated a settlement. Under
the essential tenns of the agreement, Rinker Materials is required to make a lump-sum payment
to Gonzalez in consideration of Gonzalez's withdrawal of his discrimination complaint, with
prejudice, and release of Rinker Materials from all other related claims and causes of action. I
tentatively approved the settlement on the record pending filing of the written, executed
agreement.

28.FMSHRC 64

ORDER

The settlement is appropriate and is in the public interest. WHEREFORE, the approval
of settlement is GRANTED, and it is ORDERED that the record is PARTIALLY SEALED,
i.e., the hearing transcript of November 29, 2005, Settlement and Mutual Release Agreement,
executed ori January 6, 2006, and Withdrawal of Claim, dated January 6, 2006, and this case is
DISMISSED WITH PREJUDICE.
.
.

11!:
/ . ~A~
1

•

ueline R. Bulluck
·
A ·nistrative Law Judge
(202) 434-9987

- -; .

·

.

Distribution:
.

j

..

Steven G. Sandoval, Esq~, Law Offices of Steven G: Sandoval, P.c::;·111 N: ChurchAvemie, · ·
Suite 1008, Tucson, AZ, 85701 .;
·
··
·
·· · ·
Katherine S. Larkins, Esq., Jackson Kelly; PLLC, 1099 18th Street, Suite 2150, Denver, CO
80202
.
.
...
/ej

"'·

28FMSHRC6S

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

February 24, 2006 . .
... ..

. . .'

CIVIL PENALTY PROCEEDIN(}S

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

Docket No~
20'05~24-M
A. C. No. 41-02363-40451

coo

Docket No. CENT 2005-88-M
A. C. No. 41-02363-45908

v.
WEIRICH BROTHERS INC.,

,;

.·

Resp~ndent ·

Davis Pit

·.

DECISION
Appearances: Carlton C. Jackso.I), Esq.,,. Office of ~he SolicitoriP-~ .. Dep3:I:fm~t o(La,bor,
Dallas, Texas, on behalf of the Secretar)r of Labor; , . . ... . : .
Teny Weirich, Johnson City, Texas, on behalf ofWemch Borthers, fucorporated.
!

\

:

•

•

, .

•

•

'

•

.

Judge Zieliiiski

Before:

These cases are before me on Petitions for Assessment of Civil Penalties filed by the .
Secretary of Labor ("Secretary"), pursuant to section 105 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815 ("Act"). The petitions allege that Weirich Brothers fucorporated
("Weirich Brothers") is liable for ten violations of the Secretary's regulations applicable to
surface, metal and non-metal mines, and proposes the imposition of civil penalties totaling
$12,331.00. A hearing was held in San Antonio, Texas. At the commencement of the hearing
the parties announced that Respondent had agreed to withdraw its contest and request for hearing
with respect to six of the alleged violations, and had further agreed to pay the civil penalties
proposed for those violations. 1 The hearing proceeded on the four remaining violations. The
Secretary filed a brief after receipt of the transcript. Respondent elected not to file a brief. For
the reasons set forth below, I find that Respondent committed three of the alleged violations and
impose civil penalties totaling $635.00 for those violations.

1

Respondent withdrew its contest and request for hearing with respect to Citation
Nos. 6233498, 6233501, 6233502, 6233503, 6233504, and 6233506. A civil penaltyof$60.00
was proposed for each of those violations pursuant to 30 C.F.R. § 100.4.
Z8FMSHRC66

Findin&s of Fact --Conclusions of Law
Weirich Brothers is located in Johnson City, Texas. One of its facilities, the Davis Pit,
located in Junction, Texas, is a surface mine that extracts material from natural deposits by use of
a dragline; and-processes it through crushers and scr.eens to produce finished product that is sold
to customers. The Davis Pit ha.S been in operation for many years, and has.been in its·present
configuration since 1986. On July 7, 2004, Jerry Anguiano, an Inspector with the Department of
Labor's Mine Safety and Health·Administration (''MSHA"), conducted an inspection of the ·
Davis Pit. He arrived at approximately 8:00 a.m.f while the plant.was being put.through a startup.procedure, and remained there for most of the day.. In the course of the.inspection, .he:issued
ten.citations.charging violations of the Secretary' s regulations establishing.safety and.health
standards for surface metal and non-metal mines, 30 C.F.R. Part 56. Civil·penalties were
assessed for the violations, and Weirich Brothers contested the penalties and requested a hearing
-before the Commission.
The citations that Weirich·Brothers ·continues to contest·are discussed below, in the order
that they were presented.at the hearing.
.
.
-. ;
Citation No. 6233497
; ~

Citation·No. 6233497 alleged.a violation of30 C.F.R. .§ .56.15002,.which'provides: ~'All ·:
persons shall wear:suitable hard hats when in or ·around ·a mine er plant where falling objects,may
create a .hazard.'~ Anguiano described the violation in.the ·uCondition or:Practice" section.o fthe
citation as follows:
The supervisor and an employee were not wearing hard hats. The supervisor,
. Ronny Barclay, was .washing under the roll crusher conveyor while. emplOyee
Jaime Dominquez was.loading the red truck-at the load out station. The system
had a load of material. Rocks were bouncing off the roll screen - a rock could
strike ·a n employee·on the head resulting -in lost work days.
Ex.P-1.
Anguiano determined that it was reasonably-likely that the violation would result-in an
injury resulting in·lost work days or restricted·duty, that .t he violation·was significant and .
substantial, that one·employee was affected and that the ·o perator's negligence was·mederate.
A civil penalty in the amount of $247.00 has been proposed for this violation. ·
The Violation
Anguinao observed this·alleged violation as he arrived on·the property~ Ronny.Barelay,.
supervisor of the pit eperation, was in the vicinity of a roll screen, using·a hose tO wash material
from the tail pulley of the conveyor leading from the screen. The plant ·had just been started 'u p.

28 FMSHRC 67.

There was a small amount ofmaterial l~ft over fr.om.the previous day moving through the
system. Tr. 99. Barclay, who was not wearing a hard hat, is depicted in a photograph taken by
Anguiano when he observed the alleged viOlation. Ex ..P-1.
Small rocks, 1.25.-1 .5 inches maximum dimension, were bouncing off the roll screen,
which was located five feet above ground level and seven to ten feet to Barclay's1eft. · Tr. 20,
100. Although no rocks bounced far enough.to strike Barclay while Anguiano.observed him, .
he believed that it was possible that a rock could bounce·far enough to strike ~arclay' s head,
resulting in'an injury that·would cause lost work days. Tr. 20-21, 39..·.He also· felt.that Barclay
might move closer to the·screen, where it would . be more likely that:. be .could be.struck.. Tr. 22, .
33-34. There·were a:number ofrocks on the.ground near Barclay, ·and:Anguiano assumed-that- ·
they had bounced off the. screen. ·
..
Barclay testified that, while rocks do bounce off the screen, there was virtually.no
possibility that they would bounce far enough to strike him. Tr. 100, 103. He had had a
discussion with another MSHA inspector, who ·explained that:the .standard required the use of
hard hats only where falling objects may create a hazard. Tr. 103~ Based upon that-discussion, .
it was his understanding that hard hats did not need to be worn in the area where he was located,
because there was no hazard presented by falling objects. He told Anguiano about.the prior
discussion and explained why he wasn't wearing his hard hat at the time. Tr. 17, 42. Weirich
Brothers·issued hardhats to:employees, and Barclay's was in·clase proximity. Tr.:44, 104, 108.
He testified that he and :the ·0ther employees always wore theirrhard-hats when they·worked.close
to.the roll screen;.or·in other•areas.of.the-plant where there was a·chance·ofbeing struck by a ·
falling object. Tr. 106-07. Following Anguiano's inspection, the employees began to wear.hard
hats whenever they were working in the plant.
In an enforcement proceeding under the Act,.the Secretary has the burden .ot:proYing all
elements of an alleged violation by a preponderance of the evidence. In re: Contests of.
Respirable Dust Sample Alteration Citations, 17.FMSHRC 1819, 1838 (Nov. .1995),·afFd, Sec'y
ofLabor v. Keystone Coal Mining Corp., 151 F.3d ;1-096 (D.C. Cir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152
(Nov. 1989); Jim Walter Resources, Inc. , 9 FMSHRC 903, 907(May1987).

Based.upon Anguiano's testimony, I find -that therewas·a.possibility, albeit small; that
Barclay might have been struck on the head by one. of the·small .rocks. Consequently; his failure
to wear a hard hat, in an.area.where "falling objects:may create a hazard/' was .a-violation ofthe
regulation. There is also a good chance that·his duties would have taken.him closer to the·screen;
and that he would not have interrupted his work to retrieve and don his hard hat.
Respondent has argued that, because of the previous MSHA inspector's advice, the
Secretary has taken inconsistent positions with·respectto the requirement of.hard hats:in-the area
in question, and that it.did not have fair notice of the Secretary's interpretation·of the.regulation:
When "a violation of a regulation subjects private parties to criminal·or civil·sanctions; a · ·
28FMSHRC68

regulation cannot be construed to mean what an agency intended but did not adequately express."
Phelps Dodge Corp. v. FMSHRC, 681 F.2d. l 189, 1193 (9th Cir. 1982), quoting Diamond
Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). To detennine whether an operator
received fair notice of the agency's interpretation, the Commission applies an objective,
''reasonably prudent person" test, i.e., "whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the-standard.would have recognized· the specific
prohibition or requirement of the standard." Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov.
1990); BHP Minerals Jnt 'l Inc., 18 FMSHRC 1342, 1345 (Aug. 1996). In applying this standard,
a wide variety of factors.are considered, including the-text of the regulation, its placement in the
overall regulatory scheme, its regulatory history, the consistency of.the agency's .enforcement,
whether MSHA.has published notices informing the regulated community with "ascertainable
certainty" of its interpretation of the standard in question, and whether the practice at issue
affected safety. See Island Creek Coal Co., 20.FMSHRC 14, 24-25 (Jan. 1998);.Jdea/;Cement
Co.,, 12 FMSHRC at 2416.
-I reject Respondent's fair notice defense·as·to=this violation. A reasonably prudent person
familiar with the mining industry and the protective purposes of the standard would have
recognized that the standard required the wearing ofhard hats in the area in question.. Moreover,
there is no evidence that the Secretary has actually taken inconsistent positions with respect to .· .
this particular:application of the standard. -Barclay testified that the preVious iBsp~tor did not specifically identify the subject area·-as a,place.where,hard hats were not-required. Tr: .109.· It-··
was only his '-'understanding!~ of the discussion that led him to:conclude that it was not ·necessary
to wear a hard hat on the day in question., Tr.-42, 109..
· ·. ;
Significant and Substantial

. . -·'

A significant and substantial {f'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
S&S "it: 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 -F MSHRC 822, 825 (Apr. i981).
The Commission has explained that: In order to establish,that a violation c;>fa.mandatory safety standard.is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: ( 1) the lUlderlying 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 -b e of a·
reasonably serious nature.

28FMSHRC69

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted);·see also; Buck Creek Coal., .
Inc. v. MSHA , 52 F.3d 1.33, 135 (7th Cir. 1999); Austin'Power, Inc. v. ·secretary, 861F.2d99,
103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 ·FMSHRC2015, 2021(Dec.1987) (approving
Mathies criteria). ·

. In U.S. Steel Mining Co., Inc., 7-FMSHRC 1125; 1129 (Aug. ·1985), the Commission .
provided·additional gliidance:

··

·

We have explained .further that the third ·element-of the MathiesJomiula "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(August1984): .Wehaveemphasized·that, in accordance
with the language of section 104(d)(l);it is the contribution ofa violation to'. the ..
cause and effect of a hazard that must be significant and substantiaL U.S. Steel" · .
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
lnc., 6FMSHRC1573, 1574-75 {July-1984).. .
·This evaluation is made in consideration :o f the length oftime that the·violative·condi~on
existed prior to·the·citation and the time it would:have existed if nonnahnining operations had ..
continued. Elk Run Coal Co., 27 FMSHRC 899; 905: (D.ec~ .2005); U.-S. SteefMining Co.,,/ne.:, ·
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 2007 (Dec::1987). · ·
The fact of the violation has been established. The focus of the S&S-analysis for this ·
violation is the likelihood that the hazard would result in an injury, and the likelihood that any
injury would be serious. I find'. that the Secretary has failed to carry·het.burden as to beth issues.
The rocks in .question were relativ.elysman ·and were ·not traveling at any; significant
velocity. . They were being.shaken·or bounced off a roll:screen that was:roughly ,the same height ·.
as Barclay. While some of thein ·traveled·a·few .feet-from the.screen,,generally:by;sliding down
parts of the equipment, Anguiano did not observe,any rocks·travel to"where Barclay was located.
Tr. 33. While it is possible that Barclay would have moved to a position where there was an
greater possibility that a rock might have struck his head, I accept. his ·testimony that he would
have donned his close-by hard hat before working in such an area. Under the circumstances, it
was not reasonably likely that Barclay's failure to wear a hard hat would·result in an injury, and it
was not reasonably likely that any injury would"be ·serious. . The violation was .not S&S~.
I also find that the operator1s negligence with respect.to this violation was:low; In light of
the conditions.that existed, Barclay~s interpretation of the.discussion he had·.had·with'the·
previous MSHA inspector, while erroneous; was not unreasonable: ·. . .
. : ,~. · ·
Citation No. 6233500
28 FMSHRC. 70

Citation No. 6233500 alleg~ a vi~lation of 30 C.F:R. § 56.14107(a), which provides:
Moving machine parts shall be guarded to protect persons from contacting gears,
sprockets, chains, drive, head, tail, and takeup pulleys, flywheels; couplings,
shafts, fan blades, and similar moving parts that can cause injury.
The violation was described in the -'~Condition or Practice'' section of the Citation as
follow·s:

··,

The provided guard that protects the tire coupling and shafhvas not in place; The
length of the coupling, motor and gearbox shaft combined measured 12 inches
long. The guard was removed by an employee when he performed welding on the
roll crusher. The tire coupling was rolled by hand to rotate the roll' crusher. The · · ·
roll crusher is operated by a 15 HP electric motor. Three employees work in"'1be
area maintaining the operation'C>f the plant. An employee ·could become entangled
by the rotating shaft resulting in a permanent disabling-iiljucy.
·
·
'· · · ·
. ..

'•

.

Ex. P..:4.
..:

~

.

Aguiano determined that it was reasonably likely that the violation would result in a
permanently 'disabling injury, that the violatfon was ·S&S, thatone employee was affeeted and
that the operatOr's negligence.was moderate. A civil penalty iii the amount of $324.00 has' been
··
··
· ·. ·
proposed for :this violation.·
,....

. ...

:

..

..

. . .· ·

The Violation

fu construing an·analogous standard2.-in Thompson Bros; Coal Co.~ 6'FMSHRC 2094,

2097 (Sept. 19-84), the Commission stated:
We find that ihe 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
ordinciry·human·carelessness. In related·contexis, 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 (May 1983); Lone Star Industries, 1nc., 3 FMSHRC 2526,
2531 (November 1981). Applying this test requires taking into considerati0n all ·
30 C..F.R. § 77.400 . .
.
(a) Gears; sprockets; ·chains; drive~ · head;tail aiid·takeup 'pulleys; flywheels;· '
' · ·couplings; shafts;:5awblades; fan illlets; and similar exposed moving machine ··
parts which·may be contacted by persons, arid which may cause injury to person5
·
· shall be gl:tarded.
2

·.

28FMSHRC71

;. ..

relevant.expo~ure and injury variables; e.g., accessibility.of the machin~ parts,
work areas, ingress and egress, work duties, and as noted, the vagaries of human
conduct. .Under this approach, citations for inadequate guar~ing will .be resolved
on a case-by-[case] basis.
. ..
The guard in question ruUi been removed the prior evenillg to facilitate welding on the
crusher, and.had i;iot be~ replaced.. Anguiano,took a·pJ:iotograph ofthe.concijtion,. which·shows
that the guard had been temporarily placed on top of the motor. Ex. P-4. Respondent does .not
dispute that the guard should have been replaced prior to the starting of the plant on the morning
of the inspection. Operation of the plant without the.guard haying been replaced violated the
standard.
Significant and Substantial
Respondent does not djsp.u te tliat ~e violation contribµted to a hazi:ird, ~ .e., a.rapidly ·
rotating shaft and coupling that ~ould entangle a miner coming into contaet witP. it.. lt is also
clear that any injury suffered a result of such entanglement would be Serious. Tr. 55.
Respondent contends that the violation was not S&S because it was not reasonably likely that the
hazard would result in an injury. I agree.

as

. T,h~~ were three empl~yees .that worked aro~d the plant, operating ~uipn;>,~t, d~ing
general cle~g and monitoring.the pl~t's.operation. :None of them \Vere iri, th.e ~ediat~ .
vicinity of the unguarded coupling when Anguiano observed it. Tr. 52-53. ':Barplay.h~ ~ot ..
noticed that the guard had not been replaced. However, he testified that he ·was about to do his
daily inspection after starting the plant, and would have noticed the missing guard and .repl39ed . .
it. Tr. 112. Teny Weirich, Respondent's president, also testified that the failure to replace the
guard was an oversight and that Barc~ay would have .noticed it and repla~edit .shortly after the
plant had been started. Tr. 134. Weirich also believed that Qie ~elihood of aminer.b~conring
entangled as a result of the missing guard was remote, because the shaft and coupling were
located at "about chest height" such.that one would ''have to make; a deliberat~ effort~' to come
into contact with.the rotating machine_ry. Tr. 133-:35. . ·
· ·
·
· ·
Weirich' s testimony about the height of the.hazard was.not contradicted, ·and.~ears to
be reasonably accurate.judging from.the photographs taken by Angw~o. Ex. PA. .Those photos
also depict substantial framing members that inhibit access to ~e hazard and would reduce the
risk of a pers9n accidentally encountering it. Anguiano testified that he considered. an injUry
reasonably likely because the condition was ''within r~ach" 'and cleanfug
requjred,in the area.
Tr. 55. However, the area depicted in the photographs does not appear to be one that would
require cleaning on any regular basis, and Anguiano later clarified that any cleaning would have ·
been done at grouµd level, i.e. not in the area of the coupling itself. Tr. 59-60. Considering the
location of the hazard, ~e .limited protection provided·by the framing member~. the (act:that any
cleaning would have been done at grounq ~~:vel where the ri* of in~Q.vertent c~ntact would have
been substantially reduced, and that Barclay W<?uld most likely have noticed the missing .g uard
and replaced it within approximately two hours after the plant had been started up.and b~fore any

was

28 FMSHRC.72

cleaning activity would have been performed, l find that.it was not reasonably likely that the
hazard contributed to would result in,an .i njury, and that the-violation wa8 n0t_S&SJ .I agree with
Anguiano?s assessment that .the operator' s negligence was moderate and that one person was ·
affected by the violation.
Citation No~ 6233499.
Citation No. 6233499 also alleged a violation of30 C.F.R § 56.14107(a), the guarding
standard. The violation was described in the '~Condition er Practice" s~tion of the citation as
follows:
The head pulley of the under roll c.onveyor-belt was not guarded. . A pinch point
existed·between the smooth head pulley and the conveyor belt. · The .hazard is 69
inches away from the .ground. (Supervisor) Ronny Barclay, and·employees .J.?ime
Dominguez,,Santos Garcia are exposed :to the hazard-when they work in.the area,
maintaining operation of the plant. Barclay.st.a ted he knew of the condition for·
two months: No :effort-to correct the condition was,attempted" .Barclay engaged:
in aggravated conduct constituting more:than ordinary negligencejn that he:was
aware the head·pulley exp~sed a pinch point hazard. This.'liolation is an ..·• ·
unwarrantable failure to comply with the mandatory standard.
Ex. P-3 . .

. .
· ..

'•.

Anguiano determined .that it was reasonably ·l ikely that the violation: would.result in a . '.
fatal injury; thatthe :violation was S&S, that three employees wereaffected·andthat'the ·
operator's·negligence was high. ·As noted in the body of the citation,.it--is;alleged .that the
violation was the·result ofthe operator's unwarrantable failure to.-comply with a mandatory safety
standard. A civil penalty in the amount of$6,300.00 has ·b een proposedifor thisviofation.
The Violation
Anguiano took a photograph·of the cited condition after a ·g uard had been welded in place
to abate the citation.4 Ex. P-3. With the 'e xception of the approximately one foothigh piece of ·
expanded metal screen welded to the conveyor frame and depicted in the left center of the photo;

3

Anguiano also believed that it was reasonably likely that Barclay would have become
entangled in the rotating shaft and coupling. Tr. 56. How~ver, I reject that concl~sion, and
accept Barclay's testimony, i.e.~· that upon noticing the ~azar~ he woul.d have shut down the
motor and replaced the guard, a task that would have taken less than a minute. Tr. 51, 112.
4

Weirich testified that there had never been a guard on the head pulley. Tr. 113.
Anguiano agreed that there was no evidence that a guard had ever been fabricated·or:ihstalled on
the head pulley prior to issuance of the citation. Tr. 79.

28 FMSHR.C 73

all of the other guarding shown in the picture was in place before the subject inspection. .Tr. 72,
79. What is not apparent from Anguiano's photograph is that the-smooth.head pulley is located a
considerable·distance off the ground. ·Tue location of the pulley is more accurately depicted in
the upper-right-hand portion of Petitioner's Exhibit P-1. Anguiano attempted to measure the
height of the pinch point, and obtained a figure of 69 inches. Tr. 64, 71, 116. Anguiano also
testified that there were no obstructions between him and the pinch point when he.took the
picture. Tr. 81.
. Anguiano's 69-inch height figure·was more of an.estimate than an'actual:measurement.
It was taken from ground level, some four feet away from the side of the conveyor, to a
"reference line," i.e., Anguiano's estimate of the height of the pinch point at that distance.
Tr. 74-77. Access to the pinch point, where the conveyor belt. contacts ·the top of the smooth
head pulley, -is considerablymore·restricted:than,is apparent·from Anguiano's photograph.
Ex. P-3. Respondent introduced a photograph showing Barclay, who is .approxim~tely.six feet
tall, standing close:to the conveyor, fully·extending bis arm up ·and over electrical conduit and the
conveyor frame, and still "not quite reaching the.pinch point.0 Tr. 139-40;·:ex: R-1, R-2;· Barclay
testified that he couldn't reach:to the pinch point,'in·part, because he.had to stand in a small
drainage ditch to approach iL Tr. 114, .l l8. He also testified that-he·did not -believe·that
Anguiano' s measurement reflected the true ·height. of the pinch point. Tr. ·H 7-18. .
..... ~ . . .

The conveyor in question had been in essentially the same position since 1986. Tr. 115,
136. It had been inspected twice yearly since that time, and the head pulley, which had never
been guarded, bad never been cited as a violation.5 113, 136-37. Anguiano, himself, had
inspected the plant once prior to July 2004, and had failed to cite .the condition, although he
testified that.he-Would·have cited it ifhe·had seen it. Tr. 12, 77-78, 81. -On one.prior ~asion, · ·
an MSHA.inspector.had suggested adding some guarding to cover ·an opening·on the.·sideof.the
motor drive -guard, which was.done. Tr. 114, .136. ·That small, rectangular piece of woven-wire
screen is shown bolted to the yellow framing on the right side of Anguiano's,photQgraph.
Ex. P-3.
1

Respondent contends that the condition was not a violation of the cited standard because
the location of the head pulley dictated that·it could·noU:'cause injury," and that a guard was not
required because the regulations state·that "guards. shallnot .b e required where the exposed
moving parts are at least seven feet away from :walking or working surfaces,"· 30 C.F.R. .
§ 56.14107(b). It also contends that it did not have fair notice of the Secretary's interpretation of
the guarding standard as applied to the particular condition here at issue. I agree with
Res~ondent on both points.

to

Anguiano agreed that the opposite side ~f the head p~lley did not need he guarded
because it was "i.Q.ac~essible."
. Tr. 74.
It ·~ppears,
~owever,
that the side
he was concerned, about
.
.
.
.
. .. .
'.
5

The Act requires that mines, other than underground coal mines, be inspeeted at least·
two times per year. 30 U.S.C. § 813(a).
28FMSHRC74

was just as.effectively inaccessible lUlder any reasonable application of the regulation: It is ·
apparent from Respondent's photograph that the hazard, the pinch point of the belt and pulley,. ·
was at least seven feet away from where a person would have to stand in order to attempt to
reach it. Ex. R-1. Moreover,:that location was ,ffi:a small drainage ditch, not ·a,walking or
working surface. :There is no evidence that miners traveled or worked in the_.immediate area, and
it appears that there was no.possibility of inadvertent contact.- -Weirich and·Barclay beli~ved that
the condition did not violate the regulation ,because the moving- machine parts in question could
not cause injury, and were located at leastsevenfeet ·a way from walking.or working surfaces.
Several MSHA inspectors·that had ·i nspected·the condition -in the past apparently reached the
same conclusion. ·
I find that the SeGretary has failed to carry her burden of proving that the moving machine
parts at issue presented a .h azard; .o r that they were located less than:seven Je.e t ·away:from
walking or working surfaces.6 ·The condition did not violate the ·regulation and the.c_~tation will
be dismissed.
. . ..

In addition, enforcement of the regulation in this instance would be barred because
Respondent did not receive fair notice of the Secretary's interpretation of the standard, i.e., a
reasonably·p rudent.person:familiar with the mining industry and1the'.protecti.v:e putp:o.ses of the
standard would not have.recognized .the sp.ecific prohibition or requirement ofthe·Standard :as the
Secretary seeks:.to apply it here. Jt is appatent that·numerous.MSHA inspe.ctors·have.o bserved.· ·
essentially.the same condition-and concludedthat:itdid.not :violatethe standard. :One inspectOr
actually made a suggestion.to.i~prove the guarding of the drive·motor 011·the'.conveyor, but: did
not suggest that additional guarding was needed for the head pulley.
· · , :·

There is no evidence that the Secretary has published notice or otherwise provided an
interpretation of the ·regulation that would have infonned operators .with reasonable c.ertainty that
the standard required guarding llllder the circumstances presented ·here~ None of:the 'other.factors
typically considered in analyzing the .fair notice.argument provide significant.guidance·or suggest
a result other than that Respondent did not have =fair notice of the Secretary's interpretation of the
standard.
Order No. 6233505
Order No. 6233505:also alleges a violation of 30 C.F:R § 56.14107(a), the;guarding

6

· Anguiano testified that Barday agreed that the head pulley presented a haiard ·1 hat
could causeinjury to miners. Tr. 68-70.. However, if Barclay made such a statement, it is not
apparent whether he' was referring fo~head ·pulleys in generaJ., or this particular-installation: ·As:
Anguiano described the conversation, Barclay agreed that ''the head pulley should have been
covered on both sides and on the back side.', Tr. 69. But, Anguiano, hitllself, believed that no ··
guard was necessary on the far side .o f the-pulley, and none was ·required in order to abate the
citatjQn. Tr. 74.

28FMSHRC75

standard. The violation was described in the " Condition or Practice" section of the citation as ·
follows~ ·

The six-bladed fan on the Detroit·diesel engine was not :guarded on the Northwest
side. The engine is used-to drive :a.water pump. · The·engine and pump were.set·
up on July 6, 2004. The hazards were the shaq) edges of the fan-blades; a.pinch
. point on the V .:belt of the alternator and another·pinch point onthe belt that turns
the engine' s crank shaft.. The hazards were -two ·feet from.the ground; The
engine~s ignition•switch is-0n thesame side·that the hazards existed, An
employee started the engine at 07:45 on this date. Rolllly Barclay (Supervisor)
stated that he knew of the missing guard, and the engine had been overheating. A
~ket had been replaced· on the valve cover. Barclay engagedin aggravated :
conduct constituting more than ordinary.negligence in that he knew the guard was ·
not in.place. This·violation is an-u nwarrantable failure to comply with·the·:_
mandatory standard.
Ex. P-9. .. ·
· Angu.iano =determined:tbat-it was reasonably likely that the'violation would· re~•t-in a.permanently disabling injury, that the violation was S&S, that two employees were affected and
that the operator'-s negligence was high. . As noted in the body of the order,jt is alleged that.the-·
violation was the result of the operator?s unwarrantable failure to comply·with a mandato1ysafety
standard: A civil penalty in the amount of$5;l00;00 has been proposed for this-violation. · ·.
The Violation
.t:.

The cited condition is·depicted -i n,photographs taken by .Anguiano~ Ex. P-9. Therewas
no guard.on the left side of the pump engine, and·the fan ·blades-and small-belt pulleys:near the
front of the.engine were exposed. The·engine·was not running·atJhe time. -However,.it -h ad:.b een
operating that morning,:most likely from shortly -b efore Anguiano' s 8 :00 a.m ..arrival ·until about
9:00 a.m., when other guarding violations were issued. Anguiano believed that employees.were
exposed to the hazard four times each day as they accessed the "ignition switch" to start and stop
the engine for the day and during the lunch break. Tr. 89-90. The switch is depicted in .o ne of·
the pictures, mounted on a small plate, along with some gauges, to the rear and left of the engine.
Ex. P-9. Because of the proximity of the exposed hazards to the switch.and the frequency that
Aguinao believed that employees passed by the hazard, he concluded that it was reasonably likely
that a serious crushing injury would occur. Tr. 92. Because Barclay wa5 aware that the guard
was not in place, and .w as responsible for Qther guarding viol~tions,. in.eluding or.ie.a~leged to be
an unwarrantable failure,.Anguiano beµev¢ -that the.operator was highly negligent,and that the
violation was the r~sult of an unwarrantable failure to,comply with a mandatory ~ety standard_. 7

7

. Anguiano also related that he had had a later phone conversation with Weirich, who

stated that he had told Barclay to reinstall the guard. Tr. 93. However, both Barclay and Weirich
28FMSHRC 76

. Barclay and Weirich testified that work had been done·on the engine the day before, in an
attempt to remedy an overheating problem.· The .thermostat had been changed and.new belts had
been installed. Tr . .119, 145-47. "The guard.on the right side of the engine was in place, but the . .
one on the left·had been·le.ft·offto facilitate possible further remedial efforts, e.g., tightening the
new belts, or more substantial repairs if the engine continued·to overheat. The engine had been .
running aboufan.hour, and .would have been checked at lunch.to .see if the.repairs had.been
effective. Tr. 125-27, 147. The engine normally.ran all day, i.e;, it was not-shut off during the
lunch break. Tr. 120. Barclay explained that the start,..up ·procedure involved two. employees,
neither of whom would be on the left side.of the engine, where the'hazards,were located.
Tr. 121-24. Moreover, the switch was.not ari. electrical cut-off, it only·controlled the starter. The
engine was shut offbypulling·backon the throttle, which was·located at the rear of the engine.
Tr. 124, 148. Employees engaged in starting or stopping the engine would not be on the left side
of the engine, near the hazard. They needed to be.to the right and rear of the engine, and th.ere
was.an eight-inch diameter water-pipe that they would·have had.to crawl over to reach the. area.
Tr. 121-25, 143-45, 148. The positions of employees engaged in starting the pump motor are
depicted in pictures introduced by Respondent. Ex. R-5, R-7. Weirch explained that there was
no reason that a miner would be on the left side of the engine, where the hazard was located.
Tr. 146, 148.
..
The guard that had been fabricated for the left side of the engine bad not been replaced,
leaving the hazards exposed. Miners worked in.the area and, .although their.·exposure to the
hazards was substantially more limited·than Anguiano believed, .it: was·possible that a miner
would inadvertently ·c ome into contact with '. the hazards,and suffer. an injury. Consequently,
··
I find that the regulation was,violated.
Respondent relies·upon a.provision in the Secretary' s·r.egulations..stating:that guards are
not required "when testing or making adjustments which cannot be performed without-removal
of the guard." 30 C.F.R: § 56.141 l2(b). However, this limited exception does not ·encompass
running of the engine for the.whole morning to see ifit would continue to overheat. While such
a trial might be characterized as a test, it could, and should, have·been.performed with the guard
in place. I find that Respondent violated the regulation.

Significant and Substantial
While any injury suffered as a result of the violation would have been serious, no injury
was reasonably likely to occur because of the limited access to the area. Anguiano did not
explain the basis for his conclusions abouthow·often:employees would be in proximity to the
hazards. He apparently assumed they would be exposed four times each day,because they would
need to reach the ''ignition switch." His assumptions were erroneous in several respects.

testified that the instruction was to let the engine run for awhile, that the belts would probably
have to be tightened, and to replace the guard after the test. · Tr. 120, 145: I find the latter
explanation more credible. ·
·
.
·
28FMSHRC77

Respondent' s unrebutted testimony·establishes that the engine was started:and stopped only once
each day, and that the switch was.used onlywhile·startingthe engine. :More significantly; the
employees involved would not have been in close proximity to·the haiard, because .they would
have been positioned to·the right and rear sides ofthe engine, ·a s depicted.in Respondenfs ·
photographs; Ex: R-5, R.:. 7. Anguiano' s pictures, ,like those .taken with respect to the previous
citation, adequately·depict the hazardous condition, but fail to depict the condition's accessibility.
They do·not show that the·area on the·left side·of the·engine is· essentially bairicaded off by a
large waterpipe approximately two feet off the·ground: Respondent's.testimony established that
employees, who would be .i n the vicinity of the engine only twice per day,-would ·have remained·
on the opposite side of.that pipe, substantially reducing their.exposure to the- hazards. The
condition existed ·that morning and would have been corrected either at the noon break,. or at the
end of the.day. Consequently, even the limited exposure.presented would hav:e affected
employees on only two limited occasions. Under the.circumstances, I find that it was not. · ·
reasonably likely that the.violation would result. in an injury, and that-the violation._was not S&S.
Unwarrantable Failure

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001 ), the Commission reiterated
the law applicable to determining whether a violation is the result of an unwarrantable failure:
: · The mtwarrantable failure terminology is taken.from section l.04(d)of the
Act, JO U.S.C;·§ 814(-cl), and refel."S to moJ,"e serious: conduct ·byan~operator in · .
connection with a violation. In Emery Mining Corp., 9·FMSHRC 1997 (Dec. ·' ··
1987), the Commission determined that unwarrantable-failure is . aggravat~d ·.· ' :
conduct constituting more than ordinary negligence. Id. at 2001 . Unwarrantable
failure is characterized.by·such conduct as· "reckless disregard,'.' "intentional
misconduct," "indifference," or a "serious.lack of reasonabfo ·care." ld. ·at .
2003-04;Rochester &Pittsburgh Coal Co., .13·FMSHRC 189, 194:(Feb. f991)
("R&P''); see also Buck Creek [Coal, Inc; v. FMSHRC, 52 F .3d .133, 136 {7th Cir.
1995)] (approving Commission's mtwarrantable failure test). ~
Whether conduct is "aggravated" in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case to :see if any
aggravating factors exist, such as the length of time that the violation has existed,
the extent of the ·v iolative condition, whether the operator has·beenplaced on .
notice that greater efforts.are necessary for compliance,.the operator's efforts in
abating the violative condition, whetherthe·violation is obvious orposes a high
degree of danger, and the operator's knowledge Qf the existence of.the violation.
See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) . . . .;·Cyprus ·
Emerald R,es. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev 'd on other grounds,
195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30~ 34 (Jan.
1997); Mullins & Sons Coal C~.,. 16 fl.dSHRG 1~2, 195 (FeQ. 1994); P:eabody .
Coa{Co., 14 FMSHRCJ258, 1261 (Aug.1992); BethEnergy Mines, Inc., . .
14.FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., H»FMSHRC
28FMSHRC78

705, 709 (June 1988). All of the relevant facts and circumstances of each case.
must be examined to determine if an actor's conduct is aggravated, or w:hether
mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because
supervisors are held to a high standard of c.are, another important factor
supporting an unwarrantable failure determination is the .involvement of a
supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
1998). .
The Secretary failed to carry·h er burden of proof with respect to Citation No. 62~3.499,
the head pulley guarding violation, negating the S&S and, unwarrantable failure .alleg~ons as to
that violation. The violation alleged in this order was also found to have been non-S&S.
Consequently, it .cannot form the basis of an unwarrantable failure charge. 30 U.S.C.
§ 814(d)(l). ·However,.even-ifit had been S&S, itwas.not the result of an unwarrantable failure.
As noted above, the decision.to leav.e the guard off the left side of the engine while it was run .
that morning, impennissibly stretched the testing exception of the regulations. How~ver•.
considering the extremely limited exposure of employees to the condition, its location with
respect to their positions, and the fact that the engine would have been started once and shut
down once at the lunch break to ·d~ further repe\irs, or re-install .the guard, Respondent's ..
negligence could not be characterized as·anything more .than modera~e, -and the violation was JtOt
the result of an unwarrantable failure. ·
The Appropriate Civil Penalties ·
Weirich Brothers is a small operator, as is its controlling entity. The Secretary introduced
a printout from MSHA's computer database1 ;.a n Assessed Violation History Report, showing that
Respondent had 21 assessed and sustained violations in the 24 month period preceding the
issuance of.the subject citations. Ex·. P-1 l. Of those violations, 12 were regulady.ass,essed and
four were S&S. The Proposed Assessment mailed to Respondent noted that there had been ~9
assessed violations within the 24-month period, during which there had been 17 inspection days,
i.e., 1.7 violations had been issued per inspection day. Under the penalty formula used.by
MSHA, this r:esulted in 16 penalty points being charged to Respondent,.indica~g a relatively
poor violation history.8 Respondent introduced a financial statement, and argued that .the. ., ·
$12,331.00 in proposed civil penalties would affect its ability to remain in business. However,
Weirich indicated that he might not make the argument if the penalties were in the $1,000.00
range. I find that the penalties imposed below would not.affect Respond~t's ability to remain in
business. All of the violations were promptly abated in good.faith. The.gravity and.negligence
associated with the alleged violations have been discussed above.

See 30 C.F.R. § ·100.3. Regular asse~~ments, as opposed to single penalty and special
assessments, are determined by reference to a point scale, with points being assigned for each of
the penalty factors specified in the Act. The table of points for violation history ranges from zero
for up to 0.3 violations per inspection day, to 20 for over 2.1 violations per inspection day.
8

28FMSHRC79

Citation No. 6233497-was affirmed. However; it was found.not to have been S&S. The
violation was unlikely to result in an injury, and any injury would have been minor. The
operator's negligence was found to have been low. A civil penalty of$247.00 was proposed by
the Secretary. I impose a penalty in the amount of $60.00, upon consideration of the above and
the factors ·e nunierated in section 11Q(i) of the Act.
Citation No. 6233500 was affirmed. However, it was found not to have been=S&S. The
violation was wilikely to result in an injury. A civil penalty of $324.00 was proposed by the
Secretary. I impose a·penalty-iri the ~ount of$275~ 00, upon.consideration of the above and the
factors enumerated'in section HO(i) of the Act.
. ..
Order No. 6233505·was:found not to have been S&S, and was not the·result of the
operatOr's wivvarrantable failure. The operator~s negligence was.moderate. Consequently, the
order 'will be modified to a citation issued under section l04(a) ·o fthe Act. A civil_penalty of
$5,100.00 was·proposed by the Secretary. I impose a ·penalty.in"the a:µiountof $300.00;upon .
consideration of the above and· the factors .enumerated in section 11 O(i) of the·Act. .
. .· .
Respondent withdrew its contest and request for hearing.with respect to Citation-Nos~ ·
6233498, 6233501, 6233502, 6233503, 6233504., and 6233506. .'.rt agreed to pay the propo~ . ·.
penalties for those violations, a total of $360.00. I have considered'the representations:and · ·. · · ·.
evidence submitted and conclude that the proffered resolution is appropriate under the criteria set
forth in section 1 lO(i) of the Act. Respondent will be ordered to pay·civil pen~ties inthe . ·
·
amount of$360.00 for those violations.
. . ..
···ORDER
•

·'

·,

•

1·

Citation No. 6233499 is hereby VACATED and the petition as·to that citation is hereby ·
DISMISSED.
Citation Nos. 6233497 and·6233500 are AFFIRMED, as modified. Order No. 6233505
is modified to a citation issued pursuant to section 104(a}ofthe.Act, and is ·AFFIRMED, as '.
modified: Respondent is directed to pay civil penalties totaling $635.00 for those violations.
Payment shall be made within 45 days.
With respect to .the six citations asto which Respondent withdrew its contest and request
for hearing, Respondent is ordered t6'pay civil penalties totaling $360, withih.45 days.

.........

C.....

·A

ielinski
· .. · '· ·'
-~- · · ative:I..aw Judge · ·

28 FMSHRC80

Distribution: (Certified Mail)
Carlton C. Jackson, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin
St., Suite 501, Dallas, TX 75202
Terry Weirich, President, Weirich Brothers, Inc., P .0. Box 206, Johnson City, TX 78636
/mh

28FMSHRC81

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ADMINISTRATIVE LAW JUDGE ORDERS

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20011
Telephone No.: (202) 434-9958
Fax .N.o .: (202) 43!1:-9949

. February 28, 200Q

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

CIVJLPENALTYPROCEEDING
Docket No·. WEVA 2006-22
A. C. No. 46-08266-66818
Docket No. WEVA 2006-37: .
A. C. No. 46-08266-69749·

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BLACK HAWK MINING, ·
Respondent

Mine: Josephine No. J ·

ORDER TO SUBMIT ADDmONAL INFORMATION *

These cases concern proposals for assessment of civil penalties .filed pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 815(d)), seeking the
assessment of 11 alleged·violations,o(mandatory safety standards found in··Parts 75-. and 50, Title
30, Code of Fede~l Regulations.
On January 17, 2006, the Commission recei:ved the Secretary's Motion for.Settlement. In
her motion, the Secretary states that the parties propose to ·reduce the total.assessment for the 11
violations, including one violation issued as a result of a serious injury, from $62,825.00 to
$16,078.00. This 74% reduction was based upon the Secretary's review·ofthe.factual
circumstances and "other relevant criteria," including·Section 11 O(i) criteria and the .fact that
New South Resources dba Black Hawk Mining filed·for Chapter 11 Bankruptcy in August 2002
and ceased business:in November 2005.
Congress stressed the importance of reviewing proposed settlements in ·an open and :
public manner and has placed a heavy burden on the Commission and its judges to provide this
oversight. S. Rep. No. 181, 95t1i Cong., ! st Sess. 44-45 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 951h Cong., 2d Sess., Legislative History ofthe
Federal Mine Safety and Health Act of1977, at 632-633 (1978) ("Legis. Hist."); 30 U.S.C. §
820(k). It is the judge•s responsibility, regardless of whether both parties have agreed on a
settlement, to determine the appropriate penalty amount, in accordance with the six criteria set
forth in Section llO(i) of the Act. Sellersburg Stone Co., 736 F.2d 1147, 1151 (7th Cir. 1984).
28 ·FMSHRC 82

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Judges must consider all six of the criteria and are obliged to direct the parties to supplement the
record as required for them to discharge this duty. See, e.g., Secy ofLabor on behalfofHanna
v. Consolidated Coal Co., 20 FMSHC 1293, 1303·(Dec. 1998). Findings of fact on each of the
statutory criteria provide the operator with the required notice as to the basis upon which it is
being assessed a particular penalty, while also providing the "Commission and the courts .. .
with the necessary·foundation upon'which to base a determination as to whether'thepemilties ·
assessed by the judge are appropriate, excessive, or insufficient." Sellersburg Stone CD., 5 ·
FMSHRC 287, 292-293 (Mar. 1983).
In addition to the criteria laid out in section 11 O(i), the Commission and its judges must
"assure that the public mterest 'is adequately protected before approval of any reduction in
penalties." Conf. Rep. No. 181, 95lh Cong., pt Sess. 45 (1977), reprinted in Legis. Hist. at 633.
Section 11 O(k) of the Mine Act requires judges to protect the public interest by ensuring that all
settlements are consistent with the Mine Act's objectives. Knox County Stone Co., 3 FMSHRC
2478, 2479 (Nov. 1981).· As foriner Chief Administrative Law Judge Paul"Merlin·stated: ·

Under the Mine Safety Act unlike most statutes, the administrative law judge
has the affirmative duty to approve a settlement, even if the parties themselves
have agreed upon its terms. Under this law the judge does not have to approve
a settlement,·ifhe:determines· i( is not. in.the':public's lnterest. ~fu.:othefwords,
the judge is here to guarantee the public interest ....

Explo-Tech Inc.:, 16 FMSHRC 931, 933 (Apr, 1994)(ALJ) (emphasis added) . .
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. The·Secretary·has failed to provide-adequate evidence4o ·support the-proposed settlement
under the six criteria of Section 1 lO(i). At a minimum, the parties·must:provide evidence·to
support the assertion that the settlement penalty is justified under each of the six criteria. Thus, I
must.deny the subject·motion unless the parties supplement the record with support-showing how
the penalty amount-adequately considers each of the six criteria in Section l lO(i):
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Judges.are required to verify·the merits.of a proposed:settlement to·detennine if it protects·
the public interest: However; the judge cannot·safeguard,Congress' ·fitst priority - the health' arid
safety of the miner - when the parties ·do not document their assertions.· The parties provided no
evidence to suggest that the 74% reduction in assessed penaltysupportS·the public's interest·
Additionally, the settlement motion fails to discuss any of the facts surrounding the accident or
identify with specificity the reasons·for ,the·proposed reduction.

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28FMSHRC83

THEREFORE, it is ORDERED.that the parties submit the required additional
information and any supporting documentation within 15 days of the date of this order. I am
mindful that the parties may desire to keep sensitive :financial information confidential. If so, the
parties may submit any documents to. me for in camera review and may request that; they be
placed under seal ·subject to further review only by the Commission or a higher appellate body.
Failure to comply with this order will result in the denial of the settlement mo~on.
·

Robert J. Lesnick
Chief Administrative Law Judge
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Distribution: (Certified Mail)
Richard D. Hosqh, Esqiiire, U.S. Departm~nt of Labor,_Mine Safety and Health Administratj.on,
100 Bluestone Road, Mt. Hope, WV 258~~-.1000.
David J. Hardy, E~uire, Spilinan Tholl!~ & Battle, "P.LLt, 300 Kanawha Blvd., East, P . .0. ;:Bo~ .
273, Charleston, WV 25321-0273
*this is a co"ected, ver;sion that was re-issued Mar.c.,h .6, 2006.
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington DC, 20001·2021
Tel~phone: (202) 434-8958 ·
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~ax:. (202)"34-9949
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SECRETARY OF lABOR,
MINE SAFETY AND HEALTH·
ADMINISTRATION (MSHA),
Petitioner

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February 28, 2006
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CIVILPBNALTYPROCBEDJNG
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· DocketNo. YORI(ioo5.:116~M
A. C. No. 19-01114-56147

V.

R.J. CINCOTTA CO., INC.,
Respondent

Mine: Portable Crusher

ORDER TO RESPONDENT TO SUBMIT SUPPORTING DOCUMENTATION
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This case is before me pursuant to an order of the Co~sion dated February~' 2006,
remandingthis matter for further consideration and determination as to' whether the ·operator,
R.J. Cincotta Company, Inc., ("Cincotta'') is entitled to relief under Rwe 60{b) the F&terat .
Rules of Civil Procedure. 1 In particular, Rule 60(b)( 1) provides relief from a fi~l judgmeµt in
cases where there has been a "'mistake, inadvertence, surprise, or excusable 'n~gl~t'" .Fed: R. ·
Civ. P. 60(b)(l).
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This matter arose because Cmcotta did·noi-°file ~i'timelyanswer to·the Seeretary of
Labor's ("Secretary'') penalty petition or to my August 18, 2005 show cause order. When I did
not receive a response to the show cause order, I issued a default order on November 2, 2005,
in which I directed Cincotta to pay the proposed penalty assessment. In support of its request,
Cincotta, appearing pro se, claims it never received the default and that it "never heard back for
[sic] an order to the respondent to show cause." Resp 't Mot. The Secretary indicates that she
does not oppose Cincotta's request.
The Commission has stated that default is a harsh remedy, and if the defaulting party
makes a showing of adequate or good cause for failing to timely respond, the case may be
reopened. Coal Prep. Services, Inc., 17 FMSHRC 1529, 1530 (Sept.1995). In addition, the
Commission has held pleadings drafted by pro se litigants to a less stringent standard than that
applied to documents drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273
(Aug. 1992)(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). However, based upon the
record before me, I am unable to determine whether Cincotta has adequate cause for failing to
timely file its notice of contest. The record includes certified return receipts signed by a
company representative indicating Cincotta' s receipt of both the show cause and default orders.

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While the Commission is not obligated to adhere to the Federal Rules of Civil
Procedure, the Commission has found guidance and has applied "so far as practicable" Rule
60(b). 29 C.F.R. § 2700.l(b).
28FMSHRG8$

Accordingly, Cincotta is ORDERED to address the issue of why it failed to file a
timely notice of contest, particularly in light of its receipt of the show cause order, within 20
days of the date of this order. If Cincotta restates its claim of not having received the show
cause order, it must explain why this Commission should not consider the enciosed certified
return receipts as proof of its receipt of the show cause order. Cincotta must send sworn
statements attesting to the veracity of its claim.

Robert J. Lesnick
Chief Administrative Law Judge
Enc.
Distribution: (Certified)
David L. Baskin, Esq., Office of the Solicitor, U.S. Department of Labor, JFK Federal
Building, Room E375, Government Center, Boston, MA 02203
Debbie Cincotta, RJ. Cincotta Company, Inc., P.O. Box 556, Wal~ MA 02454
/aak

28FMSHRC 86

G:.(} u.s. GOVERN MENT rR INTING OFFICE: 2006--320-961/43951

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