FEBRUARY 1998

COMMISSION DECISIONS
02-06-98 Brian D . Forbes
02-24-98 Rock of Ages Corporation
02-25-98 Gouverneur Talc Company
02-27-98 Medusa Cement Company

WEST 98-23-M
YORK 94-76-RM
YORK 95-70-M
PENN 97-20-RM

Pg. _99
Pg. 106
Pg. 129
Pg. 144

KENT 94-1274-D
PENN97-128
KENT95-214
KENT 97-257-D
PENN 97-81-R

Pg. 155
Pg. 157
Pg. 163
Pg. 167
Pg. 170

WEST 97-243-M
WEVA 98-1 0-C
YORK 97-29-M

Pg. 181
Pg. 184
Pg. 186

ADMINISTRATIVE J,AW DIDGE DECISIONS

02-05-98 Sec. Labor on behalf of Charles Dixon v. Pontiki Coal
02-11-98 Homer City Coal Processing Corporation
02-17-98 Island Creek Coal Company
02-19-98 Sec. Labor on behalf of Ronald Maxey v. Leeco, Inc.
02-19-98 Tanoma Mining Company
ADMINISTRATIVE LAW JUDGE ORDERS
01-30-98 Rail Link Incorporated
02-05-98 Locall702, UMWA v. Consolidation Coal Co.
02-18-98 Webster Dudley Sand & Gravel

i

FEBRUARY 1998

·

There were no cases filed in which review was &ranted or denied in the month of February.

ii

COMMISSION DECISIONS AND ORDERS

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

February 6, 1998

SECRETARY OF LA~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 98-23-M
A.C. No. 24-00500-05512 A

v.

BRIAN D. FORBES

BEFORE: Jordan, Chairman; Marks. Riley. Vcrheggen, and Beatty, Commissioners

ORDER

BY: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994) ("Mine Act"). On November 17, 1997, the Commission received a request from
Brian D. Forbes ("Forbes") 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). Attached to his
motion were a memorandum in support of his motion for relief and an affidavit of Forbes. Forbes
requests relief from the final order, a hearing, and that the $1000 civil penalty assessed against
him be set aside.
Under Rule 25 of the Cqmmission's Procedural Rules, an operator or other person against
whom a penalty is proposed has 30 days following receipt of the Secretary of Labor's proposed
penalty assessment within which to notify the Secretary that it wishes to contest the proposed
penalty. 29 C.F.R. § 2700.25. If the operator or other person fai ls to so notify the Secretary, the
proposed penalty assessment is deemed a final order of the Commission. 29 C.F.R. § 2700.27.
In his request, Forbes asserts that he failed to timely file a notice of contest because he
was not aware that he had been cited for this violation in his individual capacity until August 8,
1997, when he received a letter from the Department of Treasury notifying him that he owed an
unpaid delinquent debt to MSHA. F. Mem. at 3. Forbes asserts that, upon subsequent inquiry to
MSHA, he was informed on September 5, 1997, that he had been fined in connection with a
violation identified in a citation originally issued on September 22, 1993, to his former employer,

99

Maricorp, Inc. ("Maricorp"). /d. at 1-3. Forbes retained an attorney, who was informed by the
Chief ofMSHA's Civil Penalty Compliance Office that certified.letters informing Forbes of the
proposed penalty assessment- dated March 24, 1994, April 26, 1994, October 25, 1996, and
September 27, 1997 - were all returned to MSHA marked "unclaimed." !d. at 3. Forbes claims
that these attempts by MSHA to notify him of the proposed penalty by certified mail were
unsuccessful because he was not in Montana at these times, and instead was working at locations
in Idaho, Utah, and Alaska. ld at 2, 3-4. Forbes' affidavit attests to these factual assertions.
The Secretary opposes Forbes' request, arguing that service of the proposed penalty
assessment upon Forbes by certified mail satisfied due process requirements, and that he failed to
satisfy any of the requirements for obtaining relief under Fed. R. Civ. P. 60(b). S. Opp'n at 5-16.
The Secretary' s opposition contains numerous attachments, including affidavits from an MSHA
supervisory special investigator and the Chief of MSHA ' s Civil Penalty Compliance Office,
several "unclaimed" certified mail receipts, and a copy of the original citation.
The Secretary alleges that, at1er she discovered that Forbes had left the employ of
Maricorp, she made numerous attempts between April 26, 1994, and October 25, 1996, to notify
Forbes by certitiec;l mail addressed to a post office box he maintained in Marion, Montana. of the
civil penalty assessed against him and subsequent impending efforts to collect the penalty
assessed. S. Opp' n at 2-3. On August 8, 1997, the l.S. Department of the Treasury notified
Forbes by regular mail that "aggressive legal collection action [would] commence" regarding the
unpaid civil penalty owed to MSHA. Id. at 4.
We have held that, in appropriate cases and pursuant to Fed. R. Civ. P. 60(b), we possess
jurisdiction to reopen assessments that have become final by operation of section 1OS(a). See,
e.g., Jim Walter Resources. Inc., 15 FMSHRC 782,786-89 (May 1993); Rocky Hollow Coal Co.,
16 FMSHRC 1931, 1932 (September 1994). Relief from a final order is available under Rule
60(b) in circumstances such as a party's "mistake, inadvertance, surprise, or excusable neglect"
(Fed. R. Civ. P·. 60(b)(l)), or for "any other reason justifying relief from the operation of the
judgment." Fed. R. Civ. P. 60(b)(6).t

1

Rule 60(b) provides, in pertinent part:
On motion and upon such terms as are just, the court may relieve a
party ... from a fmal judgment, order, or proceeding for the
following reasons: ( 1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud ... , misrepresentation, or
other misconduct of an adverse party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have

100

Rule 60(b) provides that motions pursuant to the section "shall be made within a
reasonable time, and for reasons ( I), (2), and (3) not more than one year after the judgment,
order, or proceeding was entered or taken." Fed. R. Civ. P. 60(b). Therefore, if Forbes' motion
is treated as one brought pursuant to subparagraph (1) of Rule 60(b), it would be subject to
dismissal on grounds of untimeliness since it was filed over a year after the proposed penalty
assessment became a final order of the Commission in September 1994. See Lakeview Rock
Products, Inc., 19 FMSHRC 26,28-29 (January 1997); Thomas Hale, 17 FMSHRC 1815, 181617 (November 1995); Ravenna Gravel, 14 FMSHRC 738, 739 (May 1992); Pena v. Eisenman
Chemical Co., 11 FMSHRC 2 166, 2 167 (November 1989) (one year time limit contained in Rule
60(b) "is an extreme limit" and may not be extended). 2
Motions brought under subsection (b)(6) must be made within a reasonable time. Fed. R.
Civ. P. 60(b). What constitutes a "reasonable time" under Rule 60(b)(6) depends on the facts of
each case. Moore's Federal Practice 60.65[1 ], at 60-197 to 60-200; see Washington v. Penwell,
700 1'.2d 570, 572-73 (9th Cir. 1983) (four-year delay not unreasonable because of extraordinary
circumstances); Twentieth Centwy-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338. 1341 (9th Cir.
1981) (six-year delay unreasonable in part because no extraordinary circumstances); Clarke v.
Burkle, 570 F.2d 824, 831-32 (8th Cir. I 978) (six-year delay not unreasonable)~ see also United
,<)tales v. I Ioltzman , 762 F.2d 720, 725 (9th Cir. 1985) (analyzing whether opposing party was
prejudiced by delay and whether moving party had a good reason for fa iling to take action
sooner). In this case, Forbes asserts that his failure to timely notify MSHA of his intent to
contest the citation and his subsequent delay in filing a motion to reopen were attributable to lack
of notice of the proposed penalty assessment resulting from his absence from Montana for the
greater part of the preceding four years.
The Commission has observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Preparation
Servs., Inc., 17 FMSHRC 1529, 1530 (September 1995). In accordance with Rule 60(b), the
Commission has previously afforded parties relief from a final order of the Commission. See

prospective application; or (6) any other reason justifying relief
from the operation of the judgment.
Fed. R. Civ. P. 60(b).
Rule 1(b) of the Commission's Procedural Rules provides that the Federal Rules of Civil
Procedure shall apply "so far as practicable" in the absence of applicable Commission Rules. 29
C.F.R. § 2700.l(b).
2

The Secretary, however, takes the position that "this case does not clearly fit within the
circumstances set out in Rule 60(b)( l )," and thus "is not subject to the one-year time limitation
for seeking relief from a final judgment." S. Opp'n at 11-12 n.8.

101

Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (October 1997); Kinross DeLamar Mining Co.,
18 FMSHRC 1590, 1591-92 (September 1996); General Chern. Corp., 18 FMSHRC 704,705
(May 1996).

On the basis of the present record, we are unable to evaluate the merits of Forbes' motion
or whether his delay in filing the motion was reasonable. It is not entirely clear from the record
whether Forbes had actual knowledge of the citation issued against him and the subsequent
default judgment before August 1997. Forbes' explanation that he did not receive the certified
mail from MSHA because he was absent .from the state of Montana during the periods of
attempted service is a defensible one. The Secretary asserts, however, that Forbes failed to
cooperate with MSHA after being informed by telephone that he was entitled to a conference
concerni ng the proposed assessment. S. Opp'n at 2. On the existing record we cannot resolve
this and other factual disputes which must be resolved in order to determine whether Forbes has
met the requirements for Rule 60(b) relief.

102

Therefore, in the interest of justice, we remand this matter for assignment to a judge to
determine whether Forbes' motion was timely filed under Rule 60(b) and, if so, whether he has
met the criteria for relief under Rule 60(b). If the judge determines that such relief is appropriate,
this case shall proceed pursuant to the Mine Act and the Commission' s Procedural Rules, 29
C.F.R. Part 2700.

Robert H. Beatty, Jr., Commiss·oner

103

Commissioner Marl,.s, dissenting:
I vote to deny Forbes' motion.

Marc Lincoln Marks•

.104

Distribution

John M. Miller, Esq.
Eide & Miller
425 G Street, Suite 930
Anchorage, AK 99501
for Brian Forbes
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20005

105

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

February 24, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. YORK 94-76-M
throunh
:::> . 94-83-M

v.

ROCK OF AGES CORPORATION

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners1

DECISION
BY THE COMMISSION:

This consolidated contest and civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. § 801 et.seq. (1994), involves
citations issued by the Mine Safety and Health Administration ("MSHA") against Rock of Ages
Corporation ("ROA"). The citations at issue arose from an investigation into a fatal accident at
ROA's Smith Quarry and involve 30 C.F.R. Part 56, Subpart E, which governs the use and
handling of explosives at surface metaVnonmetal mines. Administrative Law Judge Jerold
Feldman upheld the citations and assessed penalties totaling $180,000. 17 FMSHR.C 1925
(November 1995) (ALJ). The Commission granted the petition for review filed by ROA in which
it challenges the judge' s decision that ROA violated the Mine Act as charged in the citations and
that its violations were due to its unwarrantable failure. In addition, ROA challenges the penalty
assessment and contends that it did not receive a fair trial because the judge was biased against
ROA and its counsel. For the reasons that follow, we affirm the judge's findings of violations and
determinations ofunwarrantability; we reject ROA's allegations ofbias; and we vacate the penalty
assessments and remand them for further consideration.

1

Commissioner Beatty assumed office after his case had been considered at a decisional
meeting. A new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1218 n. 2
(June 1994). In the interest of efficient decision making, Commissioner Beatty has elected not to
participate in this matter.

106

I.
Factual and Procedural Background
A.

How Granite is Quarried

ROA is a granite-quarrying company with twelve quarri~s and over 300 employees. 17
FMSHRC at 1927; Tr. 11453_2 The Smith Quarry, where the fatal accident occurred, is a massive
granite formation where granite is quarried through the removal of large benches in the shape of
cubes. 17 FMSHRC at 1927. A typical bench is 40 feet wide, 3 5 feet deep and 16 feet high. !d.
at 1929.
In the beginning of the quarrying process, an automatic torch is used to burn a channel or
seam, approximately 6 inches wide, around the top of a bench to separate the bench for blasting
and quarrying. /d. The channel burning begins at the front face on top of a bench, proceeds
across one side, across the back, across the opposite side, and ends back at the front face. /d.
Burning the channels on the bench takes approximately 15 days. /d. After the channels are
burned, a series of holes are drilled horizontally at intervals along the bottom of the base ofthe
bench. /d. at 1930. The holes are approximately 1 7/8 inches in diameter and 32 feet long. The
horizontal "lift" or detonation holes are completed after about 26 days into quarrying the bench.
/d. Next, a series of vertical holes are drilled every 5 112 feet in the top of the bench to within
about 1 foot of the horizontal lift holes. /d. The vertical holes are completed after about 34 days
into the quarrying process. !d.
The bench is separated from the quarry floor by detonating explosives loaded into the
horizontal lift holes. /d. Not all the holes are loaded and-different loading patterns- explosives
in every third or fourth hole- are used. /d. With the exception of seven pyrodex shots from
February to July 1993, ROA used seismic cord, which is a continuous rope-like cord of blasting
material, placed in various lift holes, connected to a trunk line and detonated by blasting caps. !d.
Following a detonation, the powderman, his assistant and a foreman go to the face of the bench to
evaluate the success of the lift and check for any misfires. ld They look for proper cracking
from lift hole to lift hole, signs of discoloration from blast residue, and any evidence of nondetonated blasting materials. ld The greatest danger with undetonated seismic cord arises when
it breaks as it is being unrolled and pushed into the lift holes; however, the powderman generally
can detect such a break because the roll of cord usually stops before reaching the back of the
bench. ld at 1931 . The blasting process occurs after 3 5 days into quarrying the bench. ld at
1930.

2

"Tr. I" references are to the consecutively numbered transcript volumes from the first
four days of hearing conducted on January 10-13, 1995, and "Tr. II" references are to the
co_nsecutively numbered transcript volumes from the second four days of hearing conducted on
April25-28, 1995. Exhibits designated with the letter "R" are those introduced into evidence by
the Secretary, and exhibits designated with the letter "C" are those introduced by ROA.

107

After the detonation, the bench is further divided by driving shims and wedges into the
vertical holes drilled at 5 112 foot intervals on top ofthe bench. /d. Slabs are split offfrom the
main bench by a front-end loader with a boom. /d. As each slab is removed, new stone is
exposed and the powderman conducts a further examination ofthe newly exposed area. /d. at
1930-31 . When a lift is clean, the top half of the hole becomes part of the lifted bench, and the
bottom half becomes the top of the bench to be quarried on the next ievel below. /d. at 1927. If
the lift is not clean, "caprock," or a layer of rock over the lift hole, may remain in place on the
surface after the bench is removed with the lift hole intact, sometimes with undetonated
explosives inside. ld. at 1927-28. Similar to caprock, "underbreak" occurs when the rock
underneath the lift holes cracks, leaving lift holes intact that are removed as the vertical slabs of
the bench are quarried. Tr. II 528-29.
The slabs are split into smaller pieces of granite that are transported from the bench to a
loading area where they are lifted by a derrick out of the quarry. 17 FMSHRC at 1931. This
process is repeated until the entire bench is removed, a process that takes about 10 to 12 days
after the blasting. /d. ln all, the entire bench is quarried in a period of about 47 days from the
initial channel burning. !d. After the bench has been removed, the surface is cleaned and scraped
with a loader and examined further. Tr. ll 843-45. The granite surface underneath the removed
bench then becomes the top of the bench that will be quarried in future years as the level ofthe
quarry descends.
B.

The Use of Pyrodex as an Explosive

Beginning in 1986, ROA tested the use of pyrodex as a substitute for seismic cord. 17
FMSHRC at 1932. The Hodgdon Powder Company manufactures pyrodex, which has the same
chemical ingredients as black powder plus additional binders and burn rate modifiers. /d. at 193 1.
Pyrodex is generally referred to as a "replica" of black powder and is classified as a Class B
explosive by t~e United States Department ofTransportation ("DOT'), while black powder is a
Class A explosive. 3 /d. at 1931, 1932. Black powder is a detonating explosive, while pyrodex is
a propellant explosive. !d. at 1931. A propellant explosive generates gas and energy as it burns;
a detonating explosive generates gas, energy and shock when it detonates. !d. at 1931-32.
Pyrodex is regarded as having superior qualities in blasting rock without radial fracturing, which
causes more waste. !d. at 1932.
ROA performed several test detonations with pyrodex in 1986, but decided against
further use of it because of the labor needed to pressurize the hole in which the pyrodex was used.
I d. Pressurization, which could be accomplished through stemming the collar of the lift hole with
rags or paper, was essential for proper lift. Jd Pressurization also channeled gas and energy to
the back of the hole to ensure that other bags of pyrodex in the middle and rear of the hole would
ignite following ignition of pyrodex in the front of the hole, which was accomplished with an
3

"Explosive" is defined in 30 C.F.R. § 56.6000, as "[a]ny substance classified as an
explosive by the Department of Transportation .... "

108

electric "squib," sometimes referred to as a match. /d. A further test detonation in 1987 did not
adequately split the granite bench, and ROA ceased experimenting with pyrodex. !d. Hodgdon
Vice President Glenn Barrett supervised the test firings in 1986 and 1987. !d.
In January 1993, ROA informed Hodgdon that it was interested in resuming use of
pyrodex as an explosive. !d. 1933. Hodgdon Vice President Barrett sent ROA information
concerning the use and handling of pyrodex. !d. Barrett recommended that pyrodex be used by
spacing several bags of it in a pressurized 30 to 40-foot lift hole without using any connecting
detonating cord. !d. The bag ofpyrodex in the front of the lift hole was ignited by using the
electric squib. !d. Succeeding bags were ignited by the first detonation if there were no
obstructions in the hole. /d.
From February to May 1993, ROA used pyrodex at the Smith Quarry and a second
quarry. !d. Because ROA did not generally use pyrodex in quarrying, it prepared detailed
blasting reports, specifying the location and dimensions of the bench at which pyrodex was used,
the number and loading sequence ofbags ofpyrodex in each lift hole, and the number and
location of lift holes that were loaded. /d. at 1933-34. On June 22, 1993, the pertinent report
indicates that the 42-foot bench had 80 lift holes that were 3 7 feet deep and spaced at 6-inch
intervals across the face. ld at 1934. Four bags ofpyrodex were placed in each fourth hole.4 /d.
One bag was placed in the front of each hole, one in the middle, and two in the back,
approximately 32 to 37 feet away from the mouth of the hole. !d. ; Ex. R-7. Neither blast
foreman Earl Kelty nor powderman Bud Reynolds pressurized the lift holes in which pyrodex was
used. Tr. I 588-89. Following the blast, Kelty and Reynolds inspected the bench and reported
their observations ofthe condition ofthe bench in the blast report. 17 FMSHRC at 1934. Other
blast reports indicated significant variation in the number and sequence of lift holes loaded and the
number of bags of pyrodex loaded into each hole. See Ex:. R-7.
C.

Events Surrounding the Fatal Accident

Around July I, 1993, derrick operator Earnest Batchelder was loading blocks of granite to
be lifted out of the quarry when he saw four unexploded bags of pyrodex that were shaken loose .
and hanging from one of the blocks. 17 FMSHRC at 1934. There were no detonators attached
to the bags. Id at 1935. He reported the presence ofthe bags to Foreman Kelty. !d.
Subsequently, Kelty noted on the report for the June 22, 1993 pyrodex blast that four bags of
pyrodex had failed to detonate. id; Ex. R- 7. However, Kelty did not conduct any further search
to check for the presence of more undetonated pyrodex. 17 FMSHRC at 1935-36. MSHA
4

The loading pattern began with the first and fourth holes and then went to each fourth
hole thereafter, resulting in a sequential loading pattern of I, 4, 8, 12, 16, 20, 24, 28, etc. 17
FMSHRC at 1934. The judge based this finding on ROA' s initial accident report (Ex. R-8),
testimony, and other exhibits, including a diagram, Ex. R-10, drawn by ROA foreman Earl Kelty
indicating the loading pattern and bags of unexploded pyrodex located after the accident. Jd at
1939-41 & n 5.

109

Inspector Donald. Fowler testified without contradiction that he questioned Kelty during the
investigation into the accident as to why he did not follow up on the discovery of the undetonated
bags of pyrodex and Kelty responded that he "forgot." !d.; Tr. I 586-87.
On May 20, 1994, channel burner operator Michael Bassett had completed a channel on
the side of a bench and was initiating the burning of a channel at the rear of the bench. 17
FMSHRC at 1936. Unbeknownst to Bassett, his torch passed within two feet of a lift hole with
two bags of unexploded pyrodex that remained from the detonation and quarrying of the bench
directly above the new ·bench. !d. His torch then passed over three empty holes. !d. at 1937.
Just before II :00 a.m., Bassett's torch ignited two unexploded bags ofpyrodex as he passed over
another lift hole. !d. at 1936-37. Bassett was thrown I 0 feet into the air and killed instantly. !d.
at 1936.
A subsequent search for more unexploded pyrodex on the bench where the accident
occurred revealed seven more lift holes, each with two bags. /d. at 1937. A total of22 bags of
pyrodex were discovered - the four bags uncovered in 1993, the four bags that Bassett
encountered on the day of the accident, and the 14 additional bags uncovered after the accident. 5
!d. Based on the loading sequence of the lift holes and the loading pattern within the holes,
MSHA concluded that the accident location was at the base of a removed bench where ROA had
used pyrodex on June 22, 1993 . !d. The 22 misfires represented 26 percent ofthe 84 bags of
pyrodex loaded into the lift holes for the June 22 detonation. !d.
Following its accident investigation, MSHA issued four citations against ROA. !d. at
1928. MSHA charged ROA with violating 30 C.F.R. § 56.63ll(b), for permitting work other
than work neces.sary to remove a misfire in the blast area; 30 C.F.R. § 56.6306(g), for permitting
work to resume prior to an adequate post-blast inspection following the June 22, 1993
detonation; 30 C.F.R. § 56.6904, for permitting an open flame within 50 feet of explosive
material; and 30 C.F.R. § 56.6300(a), for inadequately training blasting personnel. !d. at 192829. MSHA alleged that the violations were significant and substantial ("S&S")6 in nature and a
result ofROA's unwarrantable failure.
D.

Judge' s Decision

Following an eight-day _hearing, the judge issued his decision in which he affirmed the four

5

In addition, following the accident, .18 other pyrodex misfires were found at other blast
sites at Smith Quarry and at a second quarry where pyrodex was tested, yielding a total of 40
unexploded bags of pyrodex. See 17 FMSHRC at 1941 .
6

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

110

citations and determined that the violations were S&S and occurred as a result ofROA' s
unwarrantable failure. 17 FMSHRC 1938-54. The judge assessed penalties totaling $180,000
based on the four violations and special findings. ld at 1954.

II.
Disposition

A.

Whether Pyrodex Misfires Are Governed by Part 56 Regulations

Before the judge, ROA argued that pyrodex was not an explosive and, therefore, not
covered by the Part 56 regulations. 17 FMSHRC at 1938; ROA Post-Trial Br. at 9-1 1. ROA has
abandoned this argument on review, contending instead that, because pyrodex burns rather than
detonates, it does .not fit within the definition of" misfire" in 30 C.F.R. § 56.6000.7 ROA Br. at
26-27 n. 21. ln response, the Secretary contends that pyrodex is an explosive under DOT
regulations, 49 C.F.R. § 173.88 (1996), and to interpret the misfire regulations to exclude
pyrodex would defeat their purpose. S. Br. at 47 n. 19. The Secretary argues that the regulatory
. history ofthe Part 56 reg ulations demonstrates her intent to include all explosives that fail to
perform as planned. /d. at 47-48.
Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. Dyer v. United States, 832 F.2d
I 062, 1066 (9th Cir. 1987); see also Utah Power & Light Co., 11 FMSHRC 1926, 1930 (October
1989); Consolidation Coal Co. , 15 FMSHRC 1555, 1557 (August 1993). If, however, a
regulation is ~mbiguous, courts have deferred to the Secr-etary's reasonable interpretation of it.
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Secretary
of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C . Cir. 1990) ("agency' s
interpretation is '·of controlling weight unless it is plainly erroneous or inconsistent with the
regulation"') (quoting Bowles v. Seminole Rock Co. , 325 U.S. 410, 414 (1945)). The Secretary's
interpretation of a regulation is reasonable where it is "logically consistent with the language of .
the regulation[s] and ... serves a permissible regulatory function." General Elec. Co. v. EPA, 53
F.3d 1324, 1327 (D.C. Cir. 1995) (alteration in original) (quoting Rollins Environmental
Services, Inc. v. EPA, 937 F .2d-649, 652 (D.C . Cir. 1991). The Commission's review, like the
courts', involves an examination of whether the Secretary's interpretation is reasonable. Energy
West, 40 F.3d at 463 (citing Secretary of Labor on behalf of Bushnell v. Cannelton Indus., Inc.,
867 F.2d 1432, 1439 (D.C . Cir. 1989)); see also Consolidation Coal Co. , 14 FMSHRC 956, 969
(June 1992).

7

Part 30 C.F.R. § 56.6000 defines "misfire" as " [t]he complete or partial failure of
explosive material to detonate as planned. The term also is used to describe the explosive
material itself that has failed to detonate."

111

Because the regulation at issue here is ambiguous, we defer to the Secretary's reasonable
interpretation. The Secretary correctly notes that the regulatory definition of explosives includes
pyrodex. The MSHA regulations defining "explosives" incorporate by reference regulations
issued by DOT and its classification of explosives. 30 C.F.R. § 56.6000. These DOT regulations
clearly include propellants as explosives. 49 C.F.R. § 173 .59.
Although ROA concedes that pyrodex is an explosive, it nonetheless argues that because
pyrodex burns rather than detonates, the definition of misfire does not include pyrodex. ROA Br.
at 26 n. 21. This interpretation, however, would create glaring inconsistencies in the regulations
- pyrodex would be covered for some purposes of the MSHA regulations but not for others.
Further, the regulatory history of the definition of"misfire" at 30 C.F.R. § 56.6000 indicates that
the choice of the word "detonate" was not intended to carry with it any technical meaning but was
substituted for the word "explode" to maintain "consistency" in terminology. See 56- Fed. Reg.
2070, 2073 (1991 ).
Failing to interpret the regulations to include pyrodex would defeat the Mine Act's
purpose of enhancing miner safety through the regulations. See Eme1y Mining Corp. v. · Secrela1y
<l Lahor, 744 F.2d 141 1, 1414 (1Oth Cir. 1984). For these reasons, we affirm the judge's
determination that pyrodex misfires are covered by the Secretary's Part 56 regulations.
B.

Section 56.6311 (bt
1.

K

Violation

Section 56.6311 provides:
Handling of misfires.
(a) Faces and muck piles shall be examined
for misfires after each blasting operation.

(b} Only work necessary to remove a misfire
and protect the safety of miners engaged in the
removal shall be permitted in the affected area until
the misfire· is disposed of in a safe manner.
(c) When a misfire cannot be disposed of
safely, each approach to the area affected by the
misfire shall be posted with a warning sign at a
conspicuous location to prohibit entry, and the
condition shall be reported immediately to mine
management.
(d) Misfires occurring during the shift shall
be reported to mine management not later than the
end ofthe shift.

112

ROA argues that it complied with subsection (b) when it properly disposed of the four
misfires located by derrick operator Batchelder, noting that it was not cited under subsection (a)
of the standard for failing to properly examine the blast site. ROA Br. at 27-28. ROA further
argues that the judge misinterpreted the language of the regulation by requiring it to seek and
remove misfires throughout the bench removal process. !d. at 28-29. ROA contends that the
judge's interpretation and application of the regulation in requiring ROA to search for further
misfires once the four misfires were found is contrary to the plain language of the regulation. !d.
at 29-32. Finally, ROA concludes that, because the citation was not based upon any work
performed at the quarry prior to the disposal of the four bags of pyrodex discovered by
Batchelder, the citation must be vacated. !d. at 32.
The Secretary responds that the judge correctly accepted her interpretation of section
56.6311 (b) that operators must properly handle and dispose of misfires about which they know or
should know. S. Br. at 48. The Secretary further contends that the standard must be read in its
entirety because the obligation to properly handle a misfire does not arise unless there has been an
examination for misfires. /d. at 47-50 n. 19. Finally, the Secretary argues that her interpretation
is consistent with the regulatory history and the protective purposes of the Act and that it would
defeat the purposes of the Act and the standard if ROA were only required to dispose of known
misfires when it has reason to believe there are other misfires. !d. at 50-51 .
The judge held that ROA violated the standard when it did not make a reasonable effort to
locate and remove misfires at the quarry after Batchelder's discovery of the four bags of pyrodex.
17 FMSHRC at 1948. We agree with the judge that ROA violated the standard, but for reasons
different than those relied on by the judge.
·
The "language of a regulation ... is the starting point for its interpretation." Dyer v.
United States, 832 F.2d at 1066 (citing Consumer Product Safety Comm 'n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980)). Where the language of a regulatory provision is clear, the terms of
that provision must be enforced as they are written unless the regulator clearly intended the words
to have a different meaning or unless such a meaning would lead to absurd results. !d.~ Utah
Power & Light Co., 11 FMSHRC at 1930; Consolidation Coal, 15 FMSHRC at 1557.
The citation at issue charged ROA with violating section 56.6311(b) by permitting "work
not necessary to remove a mis~re and protect the safety of miners" on the accident bench.
Citation No. 4282251. The clear language of the standard restricts the work that can be
performed in an area containing misfires. Barrett was killed while he was burning a channel when
his torch made contact with unexploded bags of pyrodex. Channel burning does not constitute
work "necessary to remove a misfire or protect the safety of miners," and therefore cannot be
carried out in an area that contains misfires. Thus, ROA's authorization of Bassett's channel
burning violated the plain terms of the regulation.
ROA argues that the standard only applies "where a misfire has been found." ROA Br. at
32. The operator further contends that it fully complied with the standard because Kelty's

113

inspection of the blast site immediately after the June 22 detonation disclosed no misfires, 9 and
ROA properly disposed of the misfires that Batchelder subsequently found on July 1. ld
However these contentions are without merit. As the Commission has previously stated, "[t]he
Mine Act i~ a strict liability statute and an operator may be held liable for violations without
regard to fault." Wyoming Fuel Co., 16 FMSHRC 19, 21 (January 1994). The standard prohibits
all but a specific category of work in areas containing misfires. ROA' s interpretative gloss on the
standard - that it only applies once a misfire has been found - is contrary to the clear language
ofthe standard. 10 Whether or not ROA knew or had reason to know about the presence ofthe
misfires at the accident bench, the prohibition applied to Bassett's activity.

9

Substantial evidence supports the judge's finding that the June 22, 1993 blast site was
the location ofthe fatal accident, 17 FMSHRC at 1939-43. Particularly compelling is the blast
report for that site, Ex. R-7, concluding that the four misfires Batchelder found originated from
that site. In addition, the accident report which ROA submitted to MSHA, Ex. R-8 , identified the
accident bench as the location of the June 22 blast. We also note that the loading pattern of
pyrodex within the lift holes and the loading sequence of the lift holes at the June 22 blast site and
the accident bench indicate that the blast site and the accident bench were the same.
When reviewing an administrative law judge' s factual determinations, the Commission is
bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge' s] conclusion."' Rochester & Pittshurgh
Coal Co. , 11 FMSHRC 2159, 2163 (November 1989) (quoting Consolidated l!..a ison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
10

In support of its argument that section 56.6311 (b) should be read to only apply to
"found" misfires, ROA asserts that the present language of section 56.6311 was taken from 30
C.F.R . § 56.6106 (1990), which provided, in pertinent part: "undetonated explosives ... found
shall be disposed of safely." ROA Br. at 30 (citing 56 Fed. Reg. at 2081). However, ROA
ignores language in the preamble which stated that section 56.6311 was also based on a second
regulation, 30 C.F.R. § 56.6168 (1990) (Handling ofMisfires), which prohibited work in a blast
area where there were misfires without reference to those "found" or any other words of
limitation. See 56 Fed. Reg. at 2082. Faced with the differing language of these two predecessor
provisions, we find it more persuasive that the Secretary drafted section 56.63Il(b) and the
reference to misfires with no limiting language. Similarly, in the regulatory preamble to the
standard, the Secretary rejected a more restrictive referenc.e to the areas affected by misfires
("blast site") and opted for a broader reference ("affected area") in the standard. /d. See also id.
("The final standard retains ' affected areas' because an accidental detonation during the removal
of a misfire is likely to affect an area larger than the blast site.") .

114

2.

Unwarrantable Failure 11

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S. C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. !d. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indiffer~nce," or a "serious lack of reasonable care." !d. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991)~ see also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission' s unwarrantable failure test).
In addition, the Commission has relied upon the high degree of danger posed by a violation to
support an unwarrantable failure finding. See BethEnergy Mines, Inc., I 4 FMSHRC 1232, 124344 (August 1992) (finding unwarrantable failure where unsaddled beams "presented a danger" to
miners entering area); Warren Steen Constr., Inc., 14 FMSHRC 1125, I 129 (July 1992) (finding
violati_o n aggravated and unwarrantable based upon "common knowledge that power lines are
hazardous, and .. . that precautions are required when working near power lines with heavy
equipment"); Quinland CoaL-;, Inc. , 10 FMSHRC 705, 709 (June 1988) (finding unwarrantable
tailure where roof conditions were " highly dangerous'').
We agree with the judge that the violation of the standard was the result of ROA' s
unwarrantable failure. See 17 FMSHRC at 1948-49. The discovery ofthe four unexploded bags
of pyrodex should have alerted foreman Kelty to the possibility of additional misfires, particularly
in light ofthe experimental nature of the pyrodex blasting. As a supervisor, Kelty had to
appreciate that any pyrodex misfires would pose an extreme danger to the miners in the area. As
the judge noted ( 17 FMSHRC at 1948), unexploded bags of pyrodex would not lie harmlessly
under piles of rock but would eventually be exposed as benches were removed and pose a hazard
as channel burning resumed . As a supervisor, Kelty is held to a high standard of care. Midwest
Material Co.,. 19 FMSHRC 30, 35 (January 1997). We agree with the judge that Kelty's failure
to order any meaningful search for unexploded pyrodex, such as probing caprock at the blast site,
"evidenced a callous disregard for the hazards associated with misfires." 17 FMSHRC at 1948;
see also Midwest Material Co., 19 FMSHRC at 35 (foreman' s negligent conduct in the face of
obvious hazard indicates serious lack of reasonable care). Finally, ROA's failure to provide any

11

We note that ROA raised in its PDR only the judge's determination ofunwarrantability
with regard to the standard limiting the handling of explosives to miners trained and experienced
in the handling of explosives, 30 C.F.R. § 56.6300(a). See ROA PDR at 10, ~ 29. Petitioner
failed to specifically raise the judge' s unwarrantability determinations with regard to the three
other violations. ROA raised generally the judge's conclusions regarding ROA's negligence. ld
at 5, ~ 7. We address the unwarrantability determinations with regard to these three violations
that ROA has addressed in its brief, because those arguments are sufficiently related to the
negligence issue in the PDR. However, we admonish petitioner and counsel to adhere to the .
requirements of the Mine Act and the Commission's procedural rules. See 30 U.S. C.
§ 823(d)(2)(A)(iii); 29 C.F .R. § 2700.70(d) and (f).

115

explanation for its· negligence and the lack of safety precautions that resulted in this fatal accident
supports an unwarrantable failure determination. Midwest Material Co., 19 FMSHRC at 35. In
short, the record evidence overwhelmingly supports the judge's determination that ROA's
violation was the result of a lack of reasonable care greater than ordinary negligence serious
enough to constitute aggravated conduct.
C.

Section 56.6306(gY 2
1.

Violation

The judge affirmed the citation charging a violation of section 56.6306(g) for exposing
miners to hazardous conditions, because a qualified person failed to inspect the blast site. 17
FMSHRC at 1949-50. The judge rejected K.OA's argument that the regulation did not apply to
areas blasted before January 31, 1994, the effective date of the regulation. /d. at 1950. The judge
also rejected ROA's argument that it had already "resumed work" at the blast site in 1993 when it
continued to quarry the June 22, 1993 bench. The judge held that resumption ofwork is a
"continuing process" and that ROA did not escape liability by resuming work prior to
implementation ofthe standard. /d.
ROA's main argument is that the provision did not go into effect until January 31, 1994,
well after the June 22, 1993 pyrodex blast, and that the standard may not be applied retroactively.
ROA Br. at 32. ROA further argues that the provision only requires a single post-blast
examination and that the judge interpreted it to require multiple examinations for a blast that
occurred well before the effective date ofthe standard. /d. atJ2-34 . ROA contends that the
standard fails to inform a "reasonably prudent quarry operator" that it applies to events prior to its
effective date. !d at 35. ROA argues that, even if the standard is applied retroactively, it
resumed work after the 1993 blast, following a properly conducted post-blast inspection. /d. at
35-38.
The Secretary responds that the violative conduct occurred at the time of the fatal
accident on May 20, 1994, after the effective date of section 56.6306, when ROA failed to
conduct an adequate post-blast examination. S. Br. at 53. The Secretary contends that ROA's

12

Section 56.6306 states,
Loading and blasting.

****
(g) No work shall resume in the blast area until a post-blast
examination addressing potential blast-related hazards has been
conducted by a person with the ability and experience to perform
the examination.

116

interpretation of the regulation is contrary to its history and purp<?se. ld at 53-54. The Secretary
further argues that in the context of granite quarrying, section 56.6306(g) requires continuing
inspections for misfires as new rock is exposed. /d. at 54. The Secretary notes that the preamble
to section 56.6306(g) explained that the subsection requires "post-blast examinations to minimize
hazards to persons who will perform subsequent work in the area." Id at 55 (citing 55 Fed. Reg.
69,596, 69,603 (1993)). The Secretary contends that the duty to inspect included a duty to probe ·
lift holes under caprock. !d. at 57.
Section 56.6306(g) was issued in January 1991, along with other regulations dealing with
explosives at surface metal/nonmetal mines. The preamble to the 1991 Federal Register
publication stated:
Paragraph (g) is a new provision requiring post-blast examinations
to minimize hazards to persons who will perform subsequent work
in the area .... Trained and experienced persons conduct these
examinations and would address all the potential hazards present at
a blast area including ground conditions [and] undetonated
explosives .. . .
56 Fed. Reg. at 2081. 13
If, as in this instance, a standard is ambiguous, we defer to the Secretary's reasonable
interpretation of the regulation. See cases cited slip op. at 6 . Contrary to ROA's argument, there
is nothing in the plain language ofthe regulation that requires only a single inspection at a blast
site. To the extent ROA relies on the reference in the rule to "a . .. post-blast examination"
(ROA Br. at 32), the regulation is either silent or ambigueus on the issue of what may trigger the
inspection. The preamble cited by the Secretary is fully consistent with her reading of the
regulation that multiple inspections might be necessary depending on the hazards and the people
in the area performing subsequent work. See also Coal Employment Project v. Dole, 889 F.2d
1127, 1131 (D.C. Cir. 1989).

As the judge held, "the concept of resumption of work is a continuing process." 17
FMSHRC at 1950. Indeed, it is apparent from the practice at ROA's quarry that inspections in
blast areas were an ongoing process. See id. at 1931 . Thus, ROA's argument that resumption of
work occurred only once while quarrying a bench and that, for the accident bench, it occurred in
1993 following the blast at the bench, is contrary to the record. As ROA noted in its post-trial
brief to the judge:
13

MSHA stayed the effective date of several of the regulations, including section
56.6306(g), in order to reopen the rulemaking record. The stay was extended on several
occasions, and on December 30, 1993, MSHA published the revised regulations with an effective
date of_January 31, 1994. See 58 Fed.Reg. 69,596 (1993). The final rule lacked any substantive
changes but was "edited for clarity." /d. ·at 69,603-04.

117

After the immediate post-blast examination, the nature of
the ROA quarrying process necessarily produces subsequent
examinations of the bench. As Mr. Murray explained, lines are split
and toppled away from the blasted bench. This process exposes
new stone as each line is removed. The ROA powdermen perform
a safety inspection before each line is toppled. Then, after each
new line is exposed, the powdermen examine the freshly exposed
stone for misfires and other safety hazards in the same manner as
they did the face.
ROA Post-Trial Br. at 22. See also PDR at 7 n. 11 ; 17 FMSHR.C at 1947. This process was
repeated when removal of the bench was completed, the floor of the bench was completely
exposed, and preparation for quarrying on the top of the adjacent bench was begun. See
generally Tr. II 841-45 (testimony of ROA witness Bolio) . 1 ~
In short, ROA' s practice belies the interpretation of section 56.6306(g) it urges before the
Commission - that the regulation only requires one examination before work resumes on the
bench following a blast. Application of the regulation to require ongoing examinations ofthe
quarry floor, especially prior to resumption of channel burning on the adjacent bench, is
reasonable. 15 The operative events to which the regulation applies are not, therefore, the June
1993 blast and subsequent inspection by foreman Kelty and Reynolds. Rather, ROA had an
ongoing obligation to inspect the blast site as new granite was exposed during the quarrying
process. Thus, ROA's retroactivity argument fails.
2.

Unwarrantable Failure

We agree with the judge that the violation was the result ofROA's unwarrantable failure.
See 17 FMSHRC at 1950. In light of the discovery of the four unexploded bags of pyrodex in
1993, Kelty's failure to probe the caprock for more misfires evidenced a disregard for the hazards
associated with misfires in the presence of torch flames. The danger of misfires was evident from
the fact that they would eventually be uncovered as benches were removed in the quarrying
process. This obvious danger supports the judge's unwarrantable failure determination. See
BethEnergy Mines, 14 FMSHRC at 1243-44. The discovery of 40 bags ofpyrodex after the fatal

14

Testimony to the contrary, that a post-blast examination was a single inspection
immediately after the blast, was elicited from ROA's expert witness in response to a leading
question from ROA counsel. Tr. II 892.
15

ROA's notice argument (ROA Br. at 35), that the regulation would not inform "a
reasonably prudent person" of its requirements is undermined by its own conduct- ROA
performed numerous inspections after the blast. See ROA Br. at 34 n. 28. Thus, the Secretary's
interpretation is consistent with industry practice and ROA was on notice of the requirements of
the regulation. See Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990).

118

explosion further' indicates the inadequacy ofROA's efforts to ensure that misfrres were not
present before miners resumed work on benches after detonations. Substantial evidence supports
the judge' s findings. Accordingly, we affirm the judge's unwarrantable failure determination with
respect to this violation.
D.

Section 56.6904 16
1.

Violation

The judge affirmed the citation charging a violation of section 56.6904, which prohibits
the use of an open flame within 50 feet of explosive material. 17 FMSHRC at 1951-52. The
judge found that ROA had constructive knowledge of the likelihood of the existence of
unexploded pyrodex once derrick operator Batchelder discovered the four bags of pyrodex. !d.
He further found that ROA had actual knowledge of the placement of the explosives and location
of the bench from which those unexploded bags came. /d. at I 95 I . Thus, the judge concluded
that permitting the use of the channel burning torch in light of that actual and constructive
knowledge established a violation of the standard. !d. at I 952.
ROA argues that the phrase "shall not be permitted" requires knowledge on the part of the
operator before a violation can be established. ROA Br. at 38. ROA contends that, because it
was not aware of the location of any misfire, the citation must be vacated. ld at 39-40. ROA
further argues that the record does not support a finding of constructive knowledge of misfires.
!d. at 40-4 I . ROA also contends that application of section 56.6904 has been limited to storage
or placement of explosives, not misfires. !d. at 38-39.
In response, the Secretary contends that, as used in the regulation, the term "permit" does
not require that the operator know that flames are being used within 50 feet of explosives. S. Br.
at 58-59. Even if it did, the Secretary continues, knowledge includes constructive knowledge,
deliberate ignorance, and reckless disregard. ld Lastly, the Secretary notes that MSHA should
not be estopped from citing a mine operator for having an open flame within 50 feet of a misfire
because it has not applied the regulation in that circumstance before. /d. at 60 n. 25.

16

Section 56.6904 provides:
Smoking and open flames.
Smoking and use of open flames shall not be permitted
within 50 feet of explosive material except when separated by
permanent noncombustible barriers. This standard does not apply to
devices designed to ignite safety fuse or to heating devices which
do not create a fire or explosion hazard.

119

We agree with the Secretary that the regulation does not require actual knowledge on the
part of the operator. Such an interpretation of the standard would ·undermine the strict liability
principles of the Mine Act. See generally Western Fuels-Utah, Inc., 10 FMSHRC 256 (March
1988). We note that other more commonly cited standards use the word "permitted" (see 30
C.F.R. § 75.400 ("Coal dust . . . and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on electric equipment therein.")), and the
Commission has not held knowledge to be a prerequisite to finding a violation of those
regulations.
Chairman Jordan and Commissioner Marks would affirm the judge's determination that
ROA violated the standard and that the violation was the result ofROA's unwarrantable failure.
Commissioner Riley and Commissioner Verheggen would reverse the judge's determination that
there was a violation. Under Pennsylvania Electric Co., 12 FMSHRC 1562, 1562-63 (August
1990), a.ff'd on other ground,·, 969 F.2d 1501 (3rd Cir. 1992), the effect of a tie vote is to allow
the judge's decision to stand as if affirmed.17

17

Chairman Jordan and Commissioner Marks conclude that the plain language of the
regulation reaches ROA's conduct at issue- permitting an open flame within 50 feet of
unexploded pyrodex. Furthermore, they do not view the reference to barriers as restricting
application of the regulation solely to storage or transportation of explosives. The standard is
located in a section ofthe regulations entitled "General Requirements-Surface and
Underground" and is not found in the "storage" section (sections 57.61 00-5 7.613 3) nor in the
transportation section (sections 57.6200-57.6205). Chairman Jordan and Commissioner Marks
also a~ree with the judge that the violation was the result of ROA's unwarrantable failure. As the
judge noted, once Batchhelder discovered the four misfires from the June 22, 1993, blast site,
ROA was aware of the likelihood of the continued existence ofunexploded pyrodex. 17
FMSHR.C at 19~ 1-52. Allowing Bassett's use of the channel burner with its open flame near the
old blast site in light.ofthe previous discovery of the unexploded pyrodex evinces a serious lack
of reasonable care that well supports an unwarrantable failure determination. See Midwest
Material Co., 19 FMSHRC at 35.
Commissioners Riley and Verheggen would reverse the judge's finding of a violation
because they find that section 56.6.904 clearly does not apply to the conduct at issue. Dyer, 832
F.2d at 1066. There appears to be nothing in the language of the standard or its regulatory
history which supports the Secretary's interpretation that would have the standard address the
hazard ofunexploded misfires. Regulations discussed earlier, section 56.631l(b) (handling of
misfires) and section 56.6306(g) (loading and blasting), fully address the problem of allowing
Bassett back onto the bench to work with a torch in the presence of unexploded pyrodex. In Title
III of the Mine Act, which applies to underground coal mines, the standard that is analogous to
section 56.6904 is clearly aimed at the safe storage of explosives, rather than the proper handling
of misfires. See 30 U.S. C. § 873(g). Similarly, it is more reasonable to interpret the reference in
section 56.6904 to "permanent noncombustible barriers" as referring to storage or transportation
of explosives, but not to misfires. Commissioners Riley and Verheggen thus conclude that the

120

E·.

Section 56.6300(a) 18
1.

Violation

The judge found that ROA violated section 56.6300(a) when it permitted miners who
were not properly trained and experienced in the use of pyrodex to direct the June 22, 1993 blast.
17 FMSHRC at 1952-54. The judge relied on the 26 percent misfire rate ofthe June 22
detonation and foremap Kelty's failure to take any meaningful action following Batchelder's
discovery of the four bags of unexploded pyrodex. !d. at 1953 . The judge further held that the
violation was due to ROA' s unwarrantable failure in light of its apparent failure to follow proper
loading procedures for pyrodex. ld In addition, the judge noted the lack of training of ROA
personnel during the six years after the initial use ofpyrodex in 1986. ld at 1954. Finally, in
upholding the unwarrantable failure designation, the judge noted that it was the absence of a
competent inspection following the discovery of the misfires that led to Bassett's death, rather
than problems related to the loading procedures of pyrodex. !d. at 1954.
ROA argues that it satisfied the training requirement ofthe regulation because its
employees were trained in "explosives." ROA Br. at 41-42. Further, ROA argues that its
employees were trained in the use of pyrodex as a result of the visits of Dean Barrett, vice
president ofHodgdon Powder. !d. at 42. According to ROA. section 56.6300(a) does not
require retraining. !d. at 43 . Finally, ROA contends that the existence of misfires and an accident
does not prove the training violation. Id at 44.
The Secretary counters that the regulation requires training in the particular explosive
used at the mine, not simply training in handling any explosive. S. Br. at 61-62. The Secretary
relies on the language of the preamble to support her contention that training in the specific

Secretary's interpretation of section 56.6904 is unreasonable. Accordingly, they would reverse
the judge's finding of a violation.
18

Section 56.6300 provides:
Control of blasting operations.
(a) Only persons trained and experienced in the handling
and use of explosive material shall direct blasting operations and
related activities.
(b) Trainees and inexperienced persons shall work only in
the immediate presence of persons trained and experienced in the
handling and use of explosive material.

121

explosive in use is required. Id at 62-63. According to the Secretary, the record evidence
supports the judge's finding that neither foreman Kelty nor powderman Reynolds were trained by
BarFett in the use ofpyrodex. ld at 63-64. The Secretary further contends that neither were
trained to look for misfires. ld at 64-65.
The judge concluded that the standard requires that blasting personnel be trained and
experienced in the "particular explosive being used." 17 FMSHRC at 1952. We agree. The
preamble to the standard in the Federal Register illustrates the Secretary's intent to require
training in explosives actually utilized by employees:
The training and experience needed to supervise or direct blasting
operations in today' s mines where the technology is continually
changing and may exceed the training provided to miners who
simply handle explosives under a supervisor's direction. As new
explosive materials are introduced at the mine, the persons directing
the blasting operations must be trained in the safe handling and use
ofthe products .. .. These new products may create hazards in
storage, transportation, loading, blast hook-up, blast area security,
firing and post blast examinations. Training must address these
areas where appropriate.
56 Fed. Reg. at 2079. We agree with the Secretary that, in order to avoid "absurd results" (see
Consolidation Coal, 15 FMSHRC at 1557), the standard must be interpreted to require that
individuals handling explosives be trained in the type of explosives they are actually utilizing. This
is demonstrated here where ROA employees, who were trained and experienced in the use of
black powder, were clearly ill prepared to properly handle and dispose ofpyrodex. ROA's
insistence that general training in explosives suffices to meet the standard's requirements is
antithetical to the Mine Act's goal of protecting miner safety. See Freemen Coal Mining Co. v.
Interior Board 'of Mine Operations Appeals, 504 F.2d 741, 744 (7th Cir. 1974).
Moreover, the record shows that Hodgdon Vice President Dean Barrett did not recall that.
Kelty or Reynolds were present in 1986 or 1987 during the experimental testing of pyrodex. 19 17
FMSHRC at 1953 . Nor was there any evidence that anyone at ROA had been trained during the
six-year interval between the test firings and the resumed use ofpyrodex in 1993. /d. at 1953-54.
Further, as the Secretary points out (S. Br. at 64), Barrett testified without contradiction that,
during the 1986-87 experimental blasts, he did not participate with anyone at ROA in a post-blast
examination. Tr. I 177-78. Finally, the judge relied on the 26 percent misfire rate of pyrodex, and
foreman Kelty's failure to engage in a further search for additional misfires after Batchelder's
discovery of the four bags, as strong circumstantial evidence of inadequate training in light of the

19

Neither Kelty or Reynolds testified at the hearing.

122

sequential ignition process.20 17 FMSHRC at 1952-53, 1954. On this record, substantial
evidence supports the judge' s findings that Kelty and Reynolds had not been adequately trained in
the use and handling of pyrodex. Accordingly, we affirm the judge's finding of violation.
2.

Unwarrantable Failure

We also agree with the judge that the violation was the result ofROA' s unwarrantable
failure. Even if Kelty and Reynolds were present at the 1986-87 test firings of pyrodex, it is
apparent from the testimony of Barrett that no one from ROA was trained in how to conduct a
post-blast examination. As MSHA Inspector Fowler testified, Reynolds stated during the
accident investigation that he did not know how to search for a pyrodex misfire. 17 FMSHRC at
1953. Kelty clearly failed to understand the significance ofthe sequential ignition process, as .
evidenced by his lack offollowup after Batchelder' s discovery ofthe misfires. Substantial
evidence supports the judge's determination. Therefore, we affirm the judge' s ruling that ROA's
failure to adequately train employees using pyrodex, given the extreme consequences of misfires
in the presence of a channel-burning torch, was an unwarrantable failure to comply.2 1

ROA argues that Barrett' s instructions for loading pyrodex were flawed, which was the
reason for the fatal misfire. See ROA Br. at 43 . However, it is more significant that there was an
absence of any training, particularly in conducting post-blast inspections, than whether all of the
information concerning the handling of pyrodex was completely accurate.
:!II

21

Commissioner Riley dissents on the issue of unwarrantability, offering the following

rationale:
[T]he Secretary and the Commission interpret the words
"unwarrantable failure" to require a culpability determination
·similar to gross negligence or recklessness. . . . Citing the
Restatement (2d) ofTorts § 283 (1965), the Secretary argues that
this negligence-based definition of"unwarrantable failure" requires
consideration of surrounding circumstances. ("[T]he standard of
conduct to which [the actor] must conform to avoid being negligent
is that of a reason~ble man under the circumstances.") (emphasis
added).
Secretary of Labor v. FMSHRC, Ill F.3d. 913, 919-920. (D.C. Cir. 1997) (citations omitted)
(alteration in original).
For almost a century hardy souls around Barre, Vermont have been carving a living and a
legend out of the granite of the Green Mountains. For Rock of Ages to continue to fulfill its
historic role, it must remain profitable in a competitive industry. Realizing this, the miners at
ROA also have the United Steelworkers of America (" USW A") to help them secure adequate
wages, promote safe working conditions, and otherwise look out for their interests. While such

123

F.

Whether the ALJ Denied ROA Due Process

ROA argues that the judge was biased against ROA. ROA Br. at 57-62. ROA contends
that the judge's decision itself evidenced a lack of impartiality, noting several of the judge's
characterizations of ROA's position. ld at 58. ROA asserts that the judge exhibited bias in the
hearing and cites 15 instances of conduct that, according to ROA, support a finding of bias. /d. at
58-62. In response, the Secretary argues that ROA has not pointed to any direct evidence of bias
but rather asks the Commission to infer bias from rulings of the judge. S. Br. at 77. The
Secretary contends that the judge's actions in sustaining objections, questioning witnesses, and
making findings adverse to ROA are insufticient to support a finding ofbias. /d. at 78-80. The
Secretary also notes that the judge made many rulings during the hearing favorable to ROA and
that ROA's counsel engaged in provocative conduct at the hearing. ld. at 80-81 .
When reviewing matters involving a judge's conduct of trial, the Commission is governed
by the abuse of discretion standard. See, e.g., In re: Contest.\· l?f Respirahle Dust Sample
Alteration Citations, 17 FMSHRC 1819, I 843-44, 1853, I 864 (November 1995). appeal
docketed .ruh nom. SecretGJy of Lahor v. Keystone Coal Mining Cmp., No. 95-16 I 9 (D.C. Cir.
Dec. 28, 1995); Big Hom Calcium Co., 12 FMSHRC 1493, 1496 (August 1990). With regard to
the judge's role at trial, the Commission has stated, "a judge is an active participant in the

relationships can be adversarial, enlightened labor relations have become more consultive and
cooperative.
Working together, ROA and the USWA developed and administered a joint training
program. The program has operated successfully for a number of years and would seem to have
achieved a measure of respect. Even the MSHA inspector, on site for several of the pyrodex
blasts, was trained in the handling of explosives as an employee ofROA. In retrospect we know
that, in fact, nobody ~ad been adequately trained to guard against the particular threat that turned
parts of the quarry into a mine field. Procedures that had proven adequate for primacord blasting .
were found to be insufficient to detect and eliminate numerous pyrodex misfires.
Surely someone should have discovered deficiencies in the post blast inspection
procedure which with the benefit of hindsight seem glaring. In fact, up until the day of this
accident, neither the operator, the union, the workers or MSHA believed they had any reason to
question the adequacy of training for anyone responsible for the post blast inspection regime.
Unfortunately, even the discovery of unexploded ordinance did not seem to awaken those
involved to the heightened danger posed by ROA's experiment with pyrodex. Under the
circumstances, in the absence of proper instruction from the manufacturer on the safe use of
pyrodex as well as the lack of intervention from MSHA, which was on site and aware of the use
of experimental explosives, I am unable to characterize the now obvious deficiencies in RO A's
training program as unwarrantable failure.

124

adjudicatory process and has a duty to conduct proceedings in an orderly manner so as to elicit
the truth and obtain a just result." Secretary on behalf of Clarke v. T.P. Mining, Inc., 7
FMSHRC 989, 993 (July 1985). In reversing a judge's sua sponte post-hearing joinder of a party,
the Commission held, "[t]he role of the Commission and its judges is to adjudicate, not to litigate
cases- a procedural axiom followed by this Commission from its formation." Lonnie Jones v.
D&R Contractors, 8 FMSHRC 1045, 1053 (July 1986).
Addressing allegations ofjudicial bias that deprived a party of a fair trial, one court has
noted that a judge "has the prerogative to interrogate witnesses, and the duty to do so where
necessary to clarify testimony, but the judge must maintain an air of impartiality." Demy v. City
t~( Gloucester, 9 F. 3d 191, 195 (I st Cir. I993 )~ see also Canterbwy Coal Co.. I FM SHRC I 3 1 I,
13 I2-13 (September 1979).22
We have reviewed the judge's decision and the transcript of the hearing, particularly the
transcript pages cited in ROA's brief We conclude that the judge's actions were well within the
bounds of his proper role in conducting the trial. See Liteky v. United States, 510 U.S. 540
( 1994) (judicial rulings, routine trial administration efforts, and ordinary admonishments to
counsel and witnesses inadequate grounds for disqualification); see also TP. Mining, 7 FMSHRC
at 993 ("A judge is an active participant in the adjudicatory process ...."). None of the cited
pages, either individually or cumulatively, indicate that the judged harbored bias towards ROA or
its counsel. 23 (f United States v. Donato, 99 F.3d 426, 434-39 (D.C. Cir. 1996) (jury conviction
set aside for several reasons, including judge's prejudicial comments to defendant and "near
constant criticism of defendant's counsel").
Accordingly, we reject ROA's argument that the judge's decision or his conduct of the
trial require reversal due to the judge's lack of impartiality.
F.

Penalties

Commission judges are accorded broad discretion in assessing civil penalties under the
Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (April 1986). Such discretion is not
unbounded, however, and must reflect proper consideration of the penalty criteria set forth in

22

In Canterbury, the Commission reversed the decision of an administrative law judge
and remanded the case for reassignment to a new judge after concluding that the judge's conduct
at the hearing was an abuse of discretion. While noting "the considerable leeway afforded
administrative law judges in regulating the course of a hearing and in developing a complete and
adequate record," the Commission concluded that the judge interjected himself in the proceedings
"so often and so extensively that [the parties] were denied the opportunity to develop their case."
1 FMSHRC at 1312-13.
23

We note that ROA did not allege bias of the judge until after it lost the case and
petitioned the Commission for review. See ROA Post-Trial Br. at 8 n. 2.

125

section llO(i) ofthe·Act. 2~ /d. (citing Sellersburg Stone Co., 5 FMSHRC 287,290-94 (March
1983), aff'd, 736 F.2d 1147 (7th Cir. 1984)). In reviewing a judge's penalty assessment, the
Commission must determine whether the judge's findings with regard to the penalty criteria are
supported by substantial evidence. The judge must make "[f]indings of fact on each of the criteria
[to] not only provide the operator with the required notice as to the basis upon which it is being
assessed a particular ·penalty, but also provide the Commission and the courts ... with the
necessary foundation upon which to base a determination as to whether the penalties assessed by
the judge are appropriate, ~xcessive, or insufficient." Sellersburg, 5 FMSHR.C at 292-93.
It does not appear that the judge considered all of the statutory criteria in determining an
appropriate penalty for ROA's violations. The judge did not separately discuss facts relating to
any of the criteria. Rather, the judge referred only to the extremely high negligence and serious
gravity associated with each ofthe violations. 17 FMSHRC at 1949, 1950, 1952, 1954. This
does not satisfY the requirements the Commission set out in Sellersburg.

Accordingly, we vacate the judge's penalty assessment and remand for entry of detailed
findings as to each of the six section II O(i) criteria, and assessment of an appropriate penalty.

24

Section 11 O(i) sets forth·six criteria to be considered in the assessment of penalties
under the Act:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, (4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.

126

III.
Conclusion
For the foregoing reasons,25 we affirm the judge's findings of violation and his
determinations of unwarrantable failure, but vacate the penalty assessment and remand it for
further consideration.

Marc Lincoln Marks, Commissioner

25

Following the Commission's October 10, 1997 Order in which it denied the Motion to
Participate in Oral Argument by David Gomo, he submitted a written Oral Argument Statement
to the Commission on October 17, which he requested the Commission to accept. We have
considered Mr. Gomo's request, and we deny it. We have not considered the statement in our
deliberations in this matter.

127

Distribution

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Henry Chajet, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037
Harry Tuggle, Esq.
United Steelworkers of America
Health & Safety Department
Five Gateway Center
Pittsburgh, PA 15222
David Gomo
c/o United Steelworkers of America
Amalgamated Local #4
P.O. Box 584
Barre, VT 05641
DavidGomo
Union Stewart & Safety Committeeman
United Steeiworkers of America
P.O. Box482
Barre, VT 05641
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health.Review Commission
Office of Administrative Law Judges
5203. Leesburg Pike, Suite 1000
Falls Church, VA 22041

128

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

February 25 , 1998
SECRETARY OF LABOR,
MINE SAFETY AND" HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 95-70-M

v.

GOUVERNEURTALCCOMPANY

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

DECISION
BY: Jordan, Chairman; Riley and Verheggen, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). At issue is Administrative Law Judge
Avram Weisberger's determination that Gouverneur Talc Company ("GTC") did not violate 30
C.F.R. § 57.4362.2 18 FMSHRC 73,77-78 (January 1996) (ALJ). The Secretary ofLabor seeks
reversal of that decision and remand for determination of whether the violation was significant

1

Commissioner Beatty assumed office after this case had been considered at a decisional
meeting. A new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1218 n.2 (June
1994). In the interest of efficient decision making, Commissioner Beatty has elected not to
participate in this matter.
2

Section 57.4362 requires that "[f]ollowing evacuation of a mine in a fire emergency,
only persons wearing and trained in the use of mine rescue apparatus shall participate in rescue
and firefighting operations in advance of the fresh air base."

129

and substantial ("S&S") and the result of GTC's unwarrantable failure. 3 For the reasons that
follow, the judge's decision is affirmed in result.

I.
Factual and Procedural Background
GTC operates the No. 1 Mine, an underground talc mine in St. Lawrence County, New
York. 18 FMSHRC at 73. At the time of the alleged violation, the primary mining method there
was open stope.4 /d. Men and supplies were transported into the mine via a production shaft,
with openings into the ore veins every 200 feet, starting at the 300-foot level and ending at the
1100-foot level. /d. at 74.
On the morning of June 21, 1994, Mark Trombley, a repairman, and Vincent Woods, a
maintenance mechanic, were using a Miller welder to repair a bucket blade on stope 19-A at the
500-foot level. /d. at 75-76; Tr. 283-84. According to Trombley, the welder began "sparking,"
"growling," "sizzling," "popping," and "lighting up the drift." 18 FMSHRC at 76; Tr. 285. The
two stopped working, and when the noise grew louder and smoke started rolling, they headed for
an exit. 18 FMSHRC at 76; Tr. 285-86.
Walking up the stope they met two miners who were close enough to hear the noises the
welder was making. 18 FMSHRC at 76; Tr. 286. Together, the four then went to the 300-foot
level, where they attempted to call the hoist man. 18 FMSHRC at 76; Tr. 286-87. When the
telephone at that level did not work, they decided to leave the mine and have the power to the
500-foot level shut off. 18 FMSHRC at 76; Tr. 287. Once out of the mine they reported the
situation to the acting general mine foreman, Donald Fuller. 18 FMSHRC at 76; Tr. 262-63.
Fuller notified Terry Jacobs, GTC's personnel and safety director, who came over to
Fuller's office. Tr. 192, 263. The mine's electrician, Steven Smith, came by during a
conversation betwee0: Fuller and Trombley and told Fuller that he thought that the power to the
500-foot level should be shut off. 18 FMSHRC at 76; Tr. 264, 298. Fuller and Smith then

The S&S terminology is ~aken from section 104(d)(l) ofthe Mine Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a ... mine safety or health hazard." The
unwarrantable failure terminology is also taken from section 104(d)(1) and refers to more serious
conduct by an operator in connection with a violation.
3

4

"Stope" is defined as "[a]n excavation from which ore has been removed in a series of
steps." U.S. Dep't oflnterior, Dictionary ofMining, Mineral, and Related Terms 541 (2d ed.
1997) ("DMMRT'). The "open-stope method" is one "in which no regular artificial method of
support is employed, although occasional props or cribs may be used to hold local patches of
insecure ground." /d. at 377.

130

headed together underground, but neither took along self-contained breathing apparatus
("SCBA"). 18 FMSHRC at 76; Tr. 94.
Once on the 500-foot level, approximately 1500 feet from the 19-A stope, Smith shut off
power to the 19-A stope. 18 FMSHRC at 76. Fuller and Smith proceeded to the 19-A stope
where Smith turned off the disconnect to the welder and unplugged it. /d. Fuller and Smith then
exited the 500-foot level, along with acting underground mine foreman Craig Woodard and three
or four miners, all of whom had been working at that level. /d.; Tr. 201 , 225. At trial, Fuller
stated that he and Woodard discussed bringing the miners up because it was lunchtime, and "we
said as long as it is this close to noon, let's bring them up and see what's going on." 18
FMSHRC at 76; Tr. 272. The seven other men remaining in the mine left the mine around 11:45
a.m. Tr. 202-03.
Safety director Jacobs' written report on the sequence of events states that between 11:00
and 11:15 a.m., after speaking with Trombley and Wood, and reviewing a ventilation map, he
"decided to get all personnel off the 500 level." Pet. Ex. 2 at 3. When asked at trial what he did
to implement that decision, Jacobs could not recall. Tr. 388. Jacobs did alert the local office of
the Department of Labor' s Mine Safety and Health Administration ("MSHA") regarding the
welder incident at approximately 11:20 a.m. Tr. 212. He identified the incident as a fire, but
MSHA never ordered an evacuation of the mine. Tr. 212-15. Jacobs also summoned the official
mine rescue team, which went underground after all ofthe miners had come up. Tr. 205.
MSHA Electrical Mine Inspector William L. Korbel, Jr., after inspecting the welder and
interviewing some ofthe GTC personnel involved, issued a section 104(a) citation, subsequently
amended to a section 104(d)(l) order, alleging that GTC violated section 57.4362 when Fuller
and Smith went underground without SCBA protection. 18 FMSHRC at 74. At trial, the
Secretary contended that the departure of the four employees from 500-foot level to the surface
of the mine constituted an evacuation in a fire emergency, thus triggering the regulation and
obligating Sinithand Fuller to take SCBA when they went underground. S. Post-Hearing Br. at
9; Tr. 103-04, 485.
Both Korbel and MSHA supervisory mine inspector Randall Gadway also opined that
GTC should have implemented its emergency evacuation plan for the mine. Tr. 102-03, 109,
481-82. Gadway further stated that MSHA considered the surface of the mine to be the "fresh air
base" referenced in section 57.4362. Tr. 481.
The judge concluded that, while the term "fire emergency" is not defined in the
regulations, and there is no common meaning of the term in the mining industry, there was a "fire
emergency," due to the presence of sparking and rolling smoke in the area of the welder. 18
FMSHRC at 77. Relying on a dictionary definition of the term "evacuation," the judge also
concJuded that because the first group of four miners all left together after two of them had
observed sparking and smoke, they had evacuated in a fire emergency. /d. at 77-78. The judge

131

further held that, because miners remained on the 500-foot level, the evacuation was not total.
ld. at 78.
The judge also found that Fuller and Smith went to the 500-foot level to shut off the
power to the 19-A stope. Id. While recognizing that the two had subjected themselves to the
hazards of smoke and gas inhalation by not being equipped with SCBA, the judge determined
that there had not been a violation of section 57.4362. Id. Finding insufficient evidence to
establish that Fuller and Smith were participating in rescue or fire fighting operations, the judge
concluded that the regulation was not violated. Id.

II.
Disposition
The Secretary argues that the language of section 57.4362 is clear, but that if the
Commission finds it ambiguous, it should defer to the Secretary' s interpretation of the standard,
which, according to her, is consistent with both the language and purpose of the regulation. S.
Br. at 5-6. The Secretary contends that the judge erred in concluding that the actions of Fuller
and Smith did not constitute "firefighting" under the terms of the standard, as the purpose of
those actions was to stop the spread of, or put out, a possible fire. ld. at 7-9. The Secretary also
submits that the judge' s decision leads to the absurdity of section 57.4362 being interpreted to
permit individuals to enter a mine during a fire emergency without SCBA protection as long as
they do not intend to engage in fire fighting or rescue operations. ld. at 9-12.
In response, GTC contends that the judge correctly found that Fuller and Smith were not
engaged in "firefighting," as they only went underground to examine the situation, turned off the
power when they got there, and found no fire. GTC Br. at 11-13. Asserting that the situation
was not covered by GTC' s evacuation plan, no evacuation was ordered, and there were many
miners engaged in normal mining operations in the mine when Fuller and Smith entered the mine
to tum off the power, GTC also attacks the judge' s conclusion that there was an "evacuation"
under section 57.4362. ld. at 6-8. GTC further argues that the judge erred in finding a "fire
emergency," citing the condition of the welder as evidence that there was simply an electrical
problem with the welder. Id. at 8-11.
In reply, the Secretary states that the judge' s conclusion that an "evacuation" occurred is
supported by substantial evidence and that the judge applied a proper interpretation of the term as
it is used in the section 57.4362. S. Reply Br. at 1-4. Tl1e Secretary contends that the judge' s
conclusion that there was a "fire emergency" is also supported by the evidence. Id. at 5-6.
A majority of Commissioners vote to affirm the judge's decision in result.
Commissioners Riley and Verheggen would affirm the judge's decision on the ground that
section 57.4362 was not violated because there was no "evacuation." Chairman Jordan would
afflrm the judge's decision on the ground that the Secretary failed to prove that Fuller and Smith

132

traveled "in advance of the fresh air base." Commissioner Marks would reverse the judge's
decision that there was no violation.

III.
Separate Opinions ofthe Commissioners
Commissioners Riley and Verheggen, in favor of affirming the decision of the
administrative law judge:
We believe that proper construction of the term "evacuation" in section 57.4362 disposes
of this case. It is undisputed that the alleged "evacuation" was merely the response by the four
miners on the 500-foot level to the malfunctioning of the welder. According to the Secretary's
interpretation of the standard, the requirements of section 57.4362 were triggered when those
miners exited the mine. In the Secretary's view, this obligated GTC to treat the incident as one
covered by section 57.4362. We do not agree, based on the plain meaning of the term
"evacuation."
'Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. Dyer v. United States, 832 F.2d
1062, 1066 (9th Cir. 1987). See also Utah Power & Light Co., 11 FMSHRC 1926, 1930
(October 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (August 1993). In the
absence of statutory or regulatory definitions or technical usage, the Commission applies the
ordinary meanings of words chosen by the drafters. Peabody Coal Co., 18 FMSHRC 686, 690
(May 1996). However, this does not necessarily mean each word in a given regulation should be
viewed in isolation.
The Se<>retary, like the judge and GTC, interprets section 57.4362 by parsing its language
into the individual terms and phrases "evacuation," "fire emergency," and "participate in rescue
and flrefighting operations." However, while "[i]t is recognized that, in the absence of express
definitions, terms in regulations should be defined according to their 'commonly understood
definitions[,]' in interpreting such terms ... 'reviewing bodies cannot concentrate on individual
terms and ignore a consideration of the context in which the term appears.'" Pyramid Mining
Inc., 16 FMSHRC 2037,2039 (October 1994) (citations omitted).' Therefore, consideration of
1

See also Deal v. United States, 508 U.S. 129, 132 (1993) (fundamental principle that
meaning of word cannot be determined in isolation, but must be drawn from context in which it
is used); Shell Oil Co. v. Iowa Dep't ofRevenue, 488 U.S. 19,25 n.6 (1988) ("Words are not
pebbles in alien juxtaposition; they have only a communal existence; and not only does the
meaning of each interpenetrate the other, but all in their aggregate take their purport from the
setting in which they are used.") (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir.
1941) (L. Hand, J.)); United States v. CDMG Realty Co., 96 F.3d 706, 714 (3rd Cir. 1996)

133

the context in which a term is used in section 57.4362 may also be relevant in ascertaining its
ordinary meaning.
The term "evacuation" is not defined in 30 C.F.R. Part 57. In finding that a partial
evacuation of the 500-foot level took place, the judge relied on a definition of"evacuation" as an
organized withdrawal from a place or area, especially as a protective measure. 18 FMSHRC at
78. However, that definition of"evacuation" is actually just an illustration of the term's primary
definition, which is "the act of emptying, clearing of the contents, or discharging." Webster's
Third New International Dictionary (Unabridged) 786 (1986) ("Webster's").
Here, there was no "emptying" or "clearing of the contents" of the 500-foot level, much
less the GTC mine. Apart from the four miners who left the mine, the rest, including some on
the 500-foot level, remained underground until later. 18 FMSHRC at 78; Tr. 271-72. In our
view, such circumstances do not rise to the level of an "evacuation."2
Further support for the view that the standard was not intended to apply to the facts of this
case is supplied by the preamble to section 57.4362, in which MSHA stated that the standard
establishes the conditions under which persons may advance
beyond the fresh-air base in fire emergencies after a mine has been
evacuated .. It does not prevent mine personnel from fighting and
controlling incipient fires prior to and during mine evacuation.
However, once a fire emergency has been declared and a fresh-air
base has been established, mine rescue apparatus must be worn as a
precaution against the smoke, fumes, and toxic products of fire.
50 Fed. Reg. 4,022, 4,028 (1985). Thus, the preamble contemplates the situation where the
mine, or at least ~hat portion of it subject to the fir~ emergency, has been cleared of miners, and
focuses on the terms under which rescue personnel may re-enter the cleared area.
The preamble further supports the notion that something more than the reaction of a few
miners to an incident involving a fire is necessary before an operator is obligated to comply with

(meaning derives from context, -hence constructional cannon noscitur a sociis, which states that
meaning may be inferred by examining surrounding words).
2

Section 57.4362 restricts actions that may take place following evacuation "of a mine."
While we do not believe it is necessarily unreasonable for the Secretary to interpret the term
"mine" in section 57.4362 to mean less than an entire mine, see Bituminous Coal Operators'
Ass 'n v. Secretary ofInterior, 547 F.2d 240, 246 (4th Cir. 1977), and D.H Blatner & Sons, Inc.,
18 FMSHRC 1580, 1586 n.9 (September 1996), we do believe it is unreasonable for the
Secretary to interpret "evacuation" under the regulation to cover a situation where miners
remained on the same level of the mine that was purportedly evacuated. See 18 FMSHRC at 78.

134

section 57.4362 . .It states that the standard applies "once a fire emergency has been declared."
!d. In addition, it clarifies the otherwise unexplained reference. to "the fresh-air base" in the
regulation by stating that a fresh-air base is something that is "established." ld. We believe that
the language employed by both the standard and MSHA's explanation of it leads to the
conclusion that the regulation is designed to apply when fire emergency procedures more formal
than those GTC followed are invoked.3
Evidence of official company involvement of the type anticipated by the regulation is
simply not present. There is no evidence that "a fire emergency [was] declared" by GTC. Nor
was any evidence presented that "a fresh-air base [was] established" by GTC beyond which those
"participat[ing] in rescue and firefighting operations" could "advance.•><~ Instead, the
"firefighting" that took place was on a less formal basis, similar to the manner in which the
alleged "evacuation" occurred.
The Secretary asserts that the safety purposes of the Act are furthered by her
interpretation. S. Br. at 5-6. We believe the opposite is true. Safety is enhanced whenever a
worker retreats from an area at the first apprehension of danger, whether the perceived threat of
harm is real or later determined to be unfounded. The miners here acted prudently and swiftly
with an abundance of caution in the interest of their own safety. They moved away promptly,
attempted to report the faulty welder, and, after being unable to contact management because of
an inoperable telephone, proceeded to the surface, leaving verification of an emergency to their
superiors. 18 FMSHRC at 76; Tr. 285-87. These miners should be commended. Their employer
should also be lauded for its rapid response in immediately notifying rescue crews, rather than
risking mobilization delays while striving to determine whether such extraordinary measures
were necessary. By stretching the plain language of section 57.4362 beyond its ordinary
meaning, the Secretary would tie operators' hands with respect to how they may respond in the
event of similar incidents. We ought not discourage workers from being able to protect
themselves by fleeing at the first hint of danger. The more formal our characterization of their
withdrawal, however, the more obligations for their employer we attach to their actions. With

3

The statement in the preamble that unprotected fire fighting "during" mine evacuation
is permissible also militates against the conclusion that the standard applies to the "partial".
evacuation that occurred at the GTC mine. See 18 FMSHRC at 78.
4

Our colleague Chairman Jordan concludes there was no violation "because the
Secretary has failed to demonstrate that Fuller and Smith traveled 'in advance of the fresh air
base."' Slip op. at 9-10 (quoting 30 C.F.R. § 57.4362). Since we find as a threshold matter that
no evacuation occurred, we do not reach this question. We note, however, that the regulatory
history is silent regarding how a "fresh-air base" is "established," and the Secretary has failed to
supply a consistent explanation of what she _understands those terms to mean. The Secretary's
brief implies that GTC should have taken steps "underground" to "setO up a fresh air base." S.
Br. at 10-11. This contradicts her expert witness, who testified that in the case of GTC fire,
MSHA considered the outside of the mine to be the fresh-air base. Tr. 481.

135

each escalating regulatory burden will come, of necessity, a higher premium on verification
before the possible overreaction of one or more miners triggers an "evacuation" of an entire
mme.
It appears to us that the Secretary may have charged GTC with a violation of section
57.4362 because she disagreed, in hindsight,5 with GTC's response to the incident. 6 However,
the regulations are silent regarding when an operator is obligated to evacuate a mine, and also fail
to impose on operators the duty to comply with their mine evacuation and rescue plans. See 30
C.F.R. Part 57, Subpart C; 30 C.F.R. § 57.11053. If the Secretary is concerned that mines are not
being evacuated when they should be, or that evacuation and rescue plans are not being adhered
to, her proper course is to fill those holes in the regulatory scheme by engaging in notice and
comment rulemaking, rather than to attempt to invoke an existing regulation that addresses a
different hazard.
For the foregoing reasons, we affirm the judge's determination that GTC did not violate
section 57.4362.

Theodore F. Verheggen, Commissioner

5

MSHA did not fault GTC for its handling of the incident when it occurred. At that
time, more than one MSHA representative was in contact with GTC regarding how the incident
was being handled, but evacuation was never discussed. Tr. 212-15.
MSHA's witnesses testified that GTC should have activated its emergency evacuati~n
proceduresforthemine. Tr.102-03, 109,481-82.
6

136

Chairman .Jordan, in favor of affirming the decision of the administrative law judge:
This regulation requires certain events to take place in order to trigger the requirement
that mine rescue apparatus be worn. First, an evacuation must occur. Second, rescue and fire
fighting operations must be initiated. And third, a fresh air base must be established. The
Secretary's failure to prove this fmal element is fatal to her case. I find no violation here because
the Secretary has failed to demonstrate that Fuller and Smith traveled "in advance of the fresh air
base." See 30 C.F.R. § 57.4362. Therefore, I would affirm the judge in result.
Although the regulations do not define "fresh air base," one authority describes it as:
[a]n underground station, located in the intake airway, that is used
by rescue teams during underground fires and rescue operations.
The base should be as close to the fire as safety will permit,
adequately ventilated, and in constant touch with the surface by
telephone.

DMMRTat 223 (emphasis added). According to this definition, therefore, the regulation
contemplates the formal establishment of a properly ventilated underground area to demarcate
the boundary beyond which apparatus must be used. 1
The Secretary never demonstrated the location of that boundary. Instead, the Secretary
appears to treat the entrance of Fuller and Smith into the mine as the event which triggered the
violation. But her regulation does not require individuals to wear mine rescue apparat\}s simply
upon going into a mine. It explicitly dictates that the equipment be worn "in advance of the fresh
air base."
The only direct evidence in the record on this point is an offhand statement by Inspector
Korbel referring to the outside of the mine as the fresh air base. Tr. 481. This comment is utterly
at odds with the explicit description of the elements of a fresh air base set forth above in the
DMMRT. It is also inconsistent with the Secretary's brief, which implies that GTC should have
taken steps "underground" to "set[] up a fresh air base." S. Br. at 10-11.2 As the Secretary

1

The Secretary's own preamble to section 57.4362 emphasizes that a fresh air base is a
predicate for the standard's mandate. In her preamble, the Secretary emphasized that "once a fire
emergency has been declared and a fresh-air base has been established, mine rescue apparatus
must be worn." 50 Fed. Reg. at 4,028.
2

Moreover, the evidence in the record pertaining to gas levels wouJd not lead one to
conclude that the surface of the mine should be deemed the boundary beyond which SCBA
should have been used, since it appears that even the members of the mine rescue team did not
wear their apparatus until they entered the sub-level just above five hundred 19-A. See Tr. at 37.

137

presented no additional evidence regarding the formation of a fresh air base (and the operator did
not address the issue), s;le failed to prove that a violation occurred.
My colleague, Commissioner Marks, has conCluded that "[t]he judge implicitly ruled that
the miners went past the fresh air base when he ruled that 'Fuller and Smith subjected themselves
to the hazards of smoke and gas inhalation in not being equipped with SCBA."' Slip op. at 13
(quoting 18 FMSHRC at 78). I decline to adopt this approach. If the Secretary intends to
penalize an operator for violating a standard, it is incumbent on her to explain how the operator
failed to comply with each element of that standard, and to offer evidence in support of her
contentions. She failed to do so here.
I do agree with Commissioner Marks, however, that our colleagues, Commissioners Riley
and Verheggen, erred in concluding that the departure of the four employees from the 500-foot
level does not constitute an evacuation of a mine for purposes of section 57.4362. While
conceding that an evacuation need not be mine-wide, my colleagues nevertheless assert that this
withdrawal cannot trigger the application of section 57.4362 because it did not involve all of the
miners on the 500-foot level. 3 Slip. op. at 6 n.2. The judge relied on a dictionary definition
which describes evacuation as an "organized withdrawal ... from a place or area esp[ecially] as a
protective measure." 18 FMSHRC at 78 (citing Webster 's at 786). That is precisely what
occurred here. The withdrawal involved all the miners who were in the vicinity of the welder
and therefore in a position to make a decision about the dangers posed when that equipment
malfunctioned. After discussing the situation and unsuccessfully attempting to call outside, the
four miners decided to leave the mine together. !d. at 76. One of the miners offered to walk
down a second exit to shut off the power but, given the. amount of smoke, the rest of the miners
were concerned he would not return. They insisted they "stick together" and leave the mine as a
group. Tr. 287.
My colleagues contend that there must be "[e]vidence of official company involvement"
and that "[t]here is no evidence that 'a fire emergency [was] declared' by GTC." Slip. op. at 7
(alteration in original). The record, however, demonstrates ample company involvement and
leaves no doubt that GTC viewed the situation as a fire emergency. Upon learning ofthe
problem with the welder, Safety Director Jacobs reviewed the ventilation map and according to
his notes, "decided to get all personnel off the 500 level." Pet. Ex. 2 at 3. 4 Jacobs then

3

The regulation refers to an "evacuation of a mine in a fire emergency." Specifying the
entire 500 foot level as the minimum area to be emptied in order for an evacuation to occur is an
arbitrary approach which directly contradicts my colleagues' own exhortation that reviewing
bodies consider "the context in which the term appears." Slip op. at 5 (quoting Pyramid Mining,
16 FMSHRC at 2039).
4

At trial Jacobs was unable to explain what he did to implement that decision. Tr. 388.

138

proceeded to notify MSHA5 about the fire and also summoned the official mine rescue team. Tr.
205, 212-15. My colleagues, however, would require "fire emergency procedures more formal
than those GTC followed" before the regulation could apply. Slip op. at 7.
Commissioners Riley and Verheggen explain that they are reluctant to "tie operators'
hands" with respect to how they may respond to emergencies, for fear it may discourage workers
from fleeing at the first hint of danger. ld. While I share my colleagues' view that " [s]afety is
enhanced whenever a worker retreats from an area at the first apprehension of danger" (id.), I
trust they would also agree that safety is not enhanced if fellow workers endanger themselves as
they attempt to control the fire emergency that prompted the withdrawal. Here, although the fire
was considered a potentially serious situation that might require the involvement of the mine
rescue team, Fuller and Smith proceeded underground to combat it without taking the precaution
of carrying a gas tester, much less the self-contained breathing apparatus referenced in the
regulation. Tr. 266, 344-45. While underground, they resorted to using smoke from a lighted
cigarette to ascertain the direction in which air was moving. Tr. 276, 33 1. Mine foreman Craig
Woodard, who was underground when he learned of the fire, also proceeded to investigate the
situation without a carbon monoxide detector, but another miner called him back to the dinner
hole and reminded him to take one. Tr. 237. Thus, while there are negative safety implications
that can flow from an overly broad application of the evacuation requirement, it is also worth
bearing in mind the safety implications that flow from an unduly narrow approach to this term.

5

My colleagues point out that upon learning of the fire MSHA never ordered an
evacuation of the mine. Slip. op. at 8 n.5. It seems entirely possible, however, that MSHA
assumed an evacuation had already occurred or was underway.

139

Commissioner Marks, dissenting:
I would reverse the judge's finding of no violation of30 C.P.R.§ 57.4362. That section
provides that " [f]ollowing evacuation of a mine in a fire emergency, only persons wearing and
trained in the use of mine rescue apparatus shall participate in rescue and frrefighting operations
in advance of the fresh air base." The judge found that four miners "evacuate[d)" in a "fire
emergency." 18 FMSHRC 73,77-78 (January 1996) (ALJ). Substantial evidence supports the
judge's findings. It is undisputed that on the morning of June 21, 1994, the Miller welder began
"sparking," "sizzling,;' "growling," "popping," "lighting up the drift," and the noise and smoke
grew progressively worse. Jd. at 75-76; Tr. 285-86. Thus, the judge properly found the existence
of a fire emergency. Likewise, it is undisputed that the "evacuation" at issue was by the four
miners from the 500-foot level as a result of the incident involving the Miller welder. 18
FMSHRC at 76. Accordingly, the dictionary definition of "evacuation" used by the judge"any organized withdrawal or removal . . . from a place or area esp[ecially] as a protective
measure"- describes the actions of the four miners. Id. at 78; see Webster's Third New
International Dictionary (Unabridged) 786 (1986) ("Webster 's"). Applying the plain meaning of
the standard, which the judge correctly did, the four miners' retreat from the mine qualified as an
evacuation. 1
In rejecting the interpretation of evacuation of both the judge and the Secretary,
Commissioners' Verheggen and Riley incorrectly rely on the preamble to the regulation to
indicate that the evacuation must involve formal procedures. Slip op. at 6. It must be
remembered that a preamble is not the law, is "not officially promulgated," and does not take
precedence over the express words of the regulation. See King Knob Coal Co., 3 FMSHRC
1417, 1420 (June 1981) ("the express language of a statute or regulation 'unquestionably
controls' over material like a ... manual"); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d
533,538-39 (D.C. Cir. 1986) (enforcement guidelines published in Federal Register held fo be
nonbinding on Secretary).

1

Commissioners' Riley and Verheggen have taken the view that the plain meaning of the
term evacuation calls for a more formal emptying of a mine than was present on these facts. Slip
op. at 5-7. Such a restrictive view is at odds with the Secretary' s interpretation of her own
regulation, which like the judge, would apply the regulation in cases of partial evacuation. S.
Reply Br. at 1-2. While I believe that the meaning of evacuation is plain and applies to a less
than complete exit of miners as a result of a dangerous situation, I note that when a standard is
ambiguous, the Commission must defer to the Secretary's reasonable interpretation of the
regulation. Energy West Mining Co. v. FMSHRC, 40 F.3d 457,463 (D.C. Cir. 1994); General
Electric Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995). Given the difference of opinion on
the meaning of evacuation leads me to the additional conclusion that the Secretary's
interpretation, which is reasonable and based on the dictionary definition of evacuation, should
be accepted by this Commission.

140

Restrictively applying the regulation to only those situations where the operator declares
an emergency and formally acts to clear a mine, as Commissioners Riley and Verheggen suggest
(slip op. at 7), will lead to the absurd result that miners will enter dangerous fire situations
without wearing safety equipment when an operator fails to take the proper steps in calling an
evacuation. In fact, this is exactly what happened in this case - two miners entered the mine
without wearing safety apparatus when the welder was potentially on fire, subjecting themselves
to dangerous levels of carbon monoxide, and, because the operator had not formally called a
mine evacuation, my colleagues believe there is no violation. Such a result actually rewards
operators who fail to take proper fire prevention measures, is contrary to the safety purposes of
the Mine Act, and should not be countenanced. See Consolidation Coal Co., 15 FMSHRC 1555,
1557 (August 1993) (rejecting construction of standard that would lead to absurd result).
Although correctly finding an evacuation and a fire emergency, the judge erred in
determining that foreman Fuller and electrician Smith were not "participating in . .. firefighting
operations" under section 57.4362 when they traveled to the 500-foot level with the intent of
shutting the power off. 18 FMSHRC at 78. Although the term "firefighting" is not defined in
the standard, its dictionary definition is "the effort to extinguish or to check the spread of a fire."
Webster's at 855. As the Secretary points out, "it is standard firefighting procedure in fighting an
electrical fire to 'first deenergize electrical circuits."' S. Br. at 8 (citing C. Goodson, B. Adams
and M. Sheed, Industrial Fire Brigade Training: Incipient Level, at 35 (1995)). Fuller testified
that they entered the mine to shut the power off "so that it wouldn't make things worse than what
it was." Tr. 265. In other words, Fuller and Smith acted in an attempt to prevent the spread of
fire. Therefore, their actions fall clearly within the term "firefighting." In addition, the judge's
interpretation, which would permit miners not engaged in fire fighting to enter the mine when
there is a fire emergency without wearing protective equipment (18 FMSHRC at 78), is
completely illogical and thwarts the safety protection purposes of the standard!
I disagree with Chairman Jordan' s opinion in which she states that the Secretary failed to
prove that the two miners advanced beyond the fresh air base (slip op. at 9-1 0), an issue that was
never raised by the parties on review. The judge implicitly ruled that the miners went past the
fresh air base when he ruled that "Fuller and Smith subjected themselves to the hazards of smoke
and gas inhalation in not being equipped with SCBA." 18 FMSHRC at 78. The record revealed
that, after Fuller and Sn-:ith descended into the mine, the mine rescue team entered the mine and
detected a potentially deadly level of carbon monoxide of 700 parts per million, causing the team
to utilize oxygen apparatus in or:der to complete their examination of the mine. Tr. 36-37, 38587. Further, Inspector Korbel testified that, according to MSHA 's view, the surface of the mine
was the fresh air base, which the two men advanced beyond when they entered the mine. Tr.
481. I also find it intriguing that Chairman Jordan criticizes the "unduly narrow approach" taken
by Commissioners Riley and Verheggen towards section 57.4362 (slip op. at 11), when her own
view of the regulation also permits miners to enter a mine, when there is a potentially serious
fire, without wearing appropriate fire safety equipment.

141

Therefore, I believe that all the elements of section 57.4362 were present when the two
miners went into the mine, after learning that the welder was potentially on fire, to shut the
power off as a fire fighting measure, without wearing mine rescue apparatus. Accordingly, I
dissent from the positions of my colleagues and would reverse the judge' s determination that
section 57.4362 was not violated and remand for a determination of whether the violation was
significant and substantial and a result of the operator' s unwarrantable failure as alleged by the
Secretary.

Marc Lincoln Marks, Commissioner

142

•

Distribution

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Sanders D. Heller
Attorney at Law
23 E. Main Street
P.O. Box 128
Gouverneur, NY 13642
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

143

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

February 27 , 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. PENN 97-20-RM
through 97-25-RM

V.

MEDUSA CEMENT COMPANY

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners'

DECISION
BY: Jordan, Chairman; Riley and Yerheggen, Commissioners
This is an interlocutory review of an order issued by Administrative Law Judge Jerold
Feldman denying a motion for recusal2 filed by Medusa .Cement Company ("Medusa") in a
1

Co~missioner Beatty assumed office after this case had been considered at a decisional

meeting. A new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1218 n.2 (June
1994). In the interest of efficient decision making, Commissioner Beatty has elected not to
participate in this matter.
2

The Commission's pr9cedural rule governing recusal, 29 C.F.R. § 2700.81, provides as

follows:

§ 2700.81 Recusal and disqualification.
(a) Recusal. A Commissioner or a Judge may recuse
himself from a proceeding whenever he deems such action
appropriate.
(b) Request to withdraw. A party may request a
Commissioner or a Judge to withdraw on grounds of personal bias
or other disqualification. A party shall make such a request by

144

consolidated contest proceeding arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act"). Pursuant to Commission Procedural Rule
76(a)(l)(i), 29 C.F.R. § 2700.76(a)(l)(i), the judge certified for interlocutory review the order
denying the recusal motion, and the Commission granted Medusa's petition for interlocutory
review. For the reasons that follow, we affirm the judge's order denying recusal.

I.
Factual and Procedural Background
This proceeding involves several consolidated contests in which Medusa challenged the
citations and abatement periods. Following the notices of contest the cases were assigned to
Judge Feldn·,an. The proceeding was stayed while settlement negotiations between counsel for
Medusa and representatives of the Mine Safety and Health Administration (" MSHA") were
ongoing. Order Granting Mot. for Cert. at 1 (January 29, 1997). After the collapse of those
negotiations, Medusa's counsel, Henry Chajet and Paul Wilson of the Patton Boggs law firm,
filed a Motion to Recuse in which they argued that the judge should recuse himself.
The motion -stated that in Rock-of Ages Corp., 17 FMSHRC 1925 (November 1995)
(AU), c!ff'd in pertinent part, 20 FMSHRC _ _, Nos. YORK 94-76-RM through 94-83-RM
(February 24, 1998), the judge demonstrated "open hostility towards the patty, its witnesses and
particularly. his personal bias towards its counsel" (Henry Chajet) (hereinafter "counsel for
ROA''), and interfered "with counsel' s presentation of evidence." M. Mot. at 1. The motion
requested that the proceeding be reassigned to a different judge. !d. In the event the judge
denied the motion, Medusa asked that the matter be certified for interlocutory review. /d. at 1-2.
The Secretary opposed the motion, arguing that the grounds for recusal were meritless and

promptly filing an affidavit setting forth in detail the matters
alleged to constitute personal bias or other grounds for
disqualification.
(c) Procedure if Commissioner or Judge does not
withdraw. If, upon being requested to withdraw pursuant to
paragraph (b) of this section, the Commissioner or the Judge does
not withdraw from the proceeding, he shall so rule upon the record,
stating the grounds for his ruling. If the Judge does not withdraw,
he shall proceed with the hearing, or, if the hearing has been
completed, he shaH proceed with the issuance of his decision,
unless the Commission stays the hearing or further proceedings
upon the granting of a petition for interlocutory review of the
Judge's decision not to withdraw.

145

further stating that Medusa's lead attorney was Paul Wilson, w~o had not alleged any bias
against himself. S. Opp'n at 1-3.
On December 2, 1996, the judge denied the motion to recuse. In his order, the judge
stated:
During the Rock ofAges proceeding, counsel engaged in
provocative conduct, pursued lines of questioning deemed to be
irrelevant, and examined the Secretary's witnesses in an aggressive
manner. The bench rulings throughout Rock ofAges were
necessary to discharge the judge' s responsibilities to regulate the
course of the hearing, to rule on offers of proof, and to ensure that
only relevant evidence was received.
Order Denying Mot. to Recuse at 1 (December 2, 1996) (citations omitted).
On January 29, 1997, the judge granted Medusa's motion to certify the ruling for
interlocutory review. In certifying the order, the judge noted that he had denied the motion for
recusal "because regulating the course of the hearing, and making bench rulings on evidentiary
matters, are fundamental duties of a presiding judge that do not support a claim of judicial bias.,
Order Granting Mot. for Cert. at 2 (January 29, 1997).
II.

Disposition
Medusa argues that the Commission should reassign the case to another judge to avoid
either bias or the appearance of bias. M. Br. at 1. Medusa states that its counsel had experienced
the judge's "personal bias" during the trial in Rock ofAges and that he had submitted a brief to
the Commission seeking reversal of the judge's decision because, among other errors, he had
improperly and unfairly conducted the trial. !d. at 2.
As grounds for recusal, Medusa relies on the judge's conduct in Rock ofAges and
submits pages and an appendix from the operator's brief in that case. In its brief, Rock of Ages
("ROA") argued that the judge committed reversible error by his conduct ofthe hearing. /d at
Attach. 3 & 4. This conduct purportedly included interrupting the presentation of evidence "in
an attempt to steer the case toward a predetermined conclusion," interjecting repeatedly during
counsel for ROA's cross-examination, taking over his cross-examination of witnesses (thereby
giving advance notice of his theories and preventing "cold" cross-examination of witnesses),
encouraging witnesses to state opinions adverse to ROA, misstating legal issues, encouraging
counsel for ROA to withdraw objections to the way the hearing was being conducted, and
refusing to strike the testimony of a witness who conferred with another witness. !d. at 3-4.
Medusa argues that the judge never assumed the role of a "neutral arbiter" and that the judge's

146

displeasure with counsel assertedly increased with the filing of the brief with the Commission in
the Rock ofAges appeal. /d. at 5. As further support for the assertion that the judge was biased,
Medusa relies on the objections ofROA's counsel to the judge's conduct of the hearing and the
response of the judge, who admonished counsel for ROA for throwing his glasses during an offthe-record conference. Id. at 6-10. Medusa asserts that the Commission's precedent allows it to
take a commonsense approach and reassign a case when relations between the judge and counsel
create bias or the appearance of bias. !d. at 13-14. As attachments to its brief, Medusa submitted
affidavits from counsel for ROA in w~ich he swore that "Judge Jerold Feldman bears personal
bias against me." Id. at Attach. 1 & 2.
The Secretary refutes the allegations of bias in Rock ofAges, relying on attached pages
from her brief in that case. S. Br. at 4 & Attach. A. The Secretary further argues that the judge' s
conduct was insufficient grounds for recusal under the Supreme Court's decision in Liteky \".
United States, 510 U.S. 540 (1994). S. Br. at 4-5. The Secretary asserts that there is a lack of
supporting evidence of bias or evidence that the judge would act with bias in this case. Id at 6-9.
The Secretary requests that the Commission affirm Judge Feldman' s decision not to recuse
himself. !d. at 13.
In reply, Medusa asserts that the Commission should review the judge's denial of recusal
de novo, rather than under the abuse of discretion standard suggested by the Secretary. M. Reply
Br. at 2-3. In its reply brief, Medusa moved to strike that portion of the Secretary's brief, which
alleged that one of the counsel for Medusa (Chajet) "ha[d] 'made a practice' of making meritless
accusations of impropriety against Judges, opposing counsel and parties." ld. at 5-10. The
Secretary opposed Medusa's motion to strike, noting that her assertions regarding that attorney ' s
conduct were based on official records and findings. S. Opp'n to Mot. to Strike at I.
·The standard of review governing recusal matters has been previously addressed by the
Commission. In Big Horn Calcium Co., 12 FMSHRC 1493 (August 1990), the Commission was
asked to review a judge's withdrawal from a case and termination of a hearing. The Commission
held that the recu~al of one judge and reassignment of a matter to a new judge was reviewed
under ''an abuse of discretion" standard. /d. at 1496. The use of an abuse of discretion standard
for recusal issues is consistent with the discretion accorded judges in other discretionary matters
related to the conduct of trial. E.g., In re: Contests ofRespirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1843-44, 1853 and 1864 (November 1995) (qualification and
crediting of expert witnesses; exclusion of trial testimony), appeal docketed sub nom. Secretary
of Labor v. Keystone Coal Mining Corp., No. 95-1619 (D.C. Cir. Dec. 28, 1995); Buck Creek
Coal, Inc., 17 FMSHRC 500, 503 (Aprill995) (stay of proceedings); Asarco, Inc., 14 FMSHRC
1323, 1327-28 (August 1992) (discovery orders). We reject Medusa's contention, Reply Br. at
2-3, that section 113(d)(2)(C) of the Mine Act, 30 U.S.C. § 823(d)(2)(C), establishes that the

147

Commission has de .novo review authority over recusal decisions of administrative law judges. 3
The issue of the judge's recusal in this proceeding based on his rulings and conduct in
Rock ofAges must be considered in light of Commission decisions that address the role of the
judge at trial. The Commission has recognized that, "a judge is an active participant in the
adjudicatory process and has a duty to conduct proceedings in an orderly manner so as to elicit
the truth and obtain a just result." Secretary of Labor on behalfof Clarke v. T. P. Mining, Inc., 7
FMSHRC 989, 993 (July .1985). The Commission has noted, however, in reversing a judge's sua
sponte post-hearing joinder of a party, that "[t]he role of the Commission and its judges is to
adjudicate, not to litigate cases- a procedural axiom followed by this Commission from its
formation." Lonnie Jones v. D&R Contractors, 8 FMSHRC 1045, l 053 (July 1986) (citation
omitted). Also, in Canterbwy Coal Co .. I FMSHRC 1311 (September 1979), the Commission
reversed the decision of.an administrative law judge and remanded the case for reassignment to a
new judge. ld. at 1314. Acknowledging "the considerable leeway afforded administrative law
judges in regulating the course of a hearing and in developing a complete and adequate record,"
the Commission concluded that the judge interjected himself in the proceedings "so often and so
extensively that [the parties] were denied the opportunity to develop their case." /d. at 1312-13.
In addition to Commission cases, both parties rely on the extensive body of federal cases
dealing with disqualification of judges. In Li!eky, the Supreme Court recently interpreted the
statutory provisions in Title 28 of the U.S. Code.4 In that case, the petitioners alleged that the

3

Section 113(d)(2)(C) provides only that the Commission is to "affirm, set aside, or
modify" a judge's decision based on the "record" in the proceeding; it doe~ not set forth the
standard of review to be applied. Nor does the fact that the Commission can decide issues of
"law, policy (and) discretion,'' M. Reply Br. at 3 (quoting 30 U.S.C. § 823(d)(2)(A)), supp011
Medusa's contention that the Commission should review a judge's decision on recusal de novo.
4

Title 28 pro.vides in relevant part:

§ 144. Bias or prejudice of judge
Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the judge
before whom the matter is pending has a personal bias or prejudice
either against him or in favor of any adverse party, such judge shall
proceed no further therein, but another judge shall be assigned to
hear such proceeding.

§ 455. Disqualification of justice, judge, or magistrate
(a) Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his impartiality

148

judge violated 28 U.S.C. § 455(a) in refusing to recuse himself because of his conduct in an
earlier trial involving one of the petitioners. -510 U.S. at 542-43. In examining the history and
meaning of sections 144 and 455(a) and (b), the Court distinguished between a judge's opinions
derived from "extrajudicial source[s]" and those derived from a prior judicial proceeding. ld. at
550-51. The Court held:
First, judicial rulings alone almost never constitute a valid basis for
a bias or partiality motion. . . . [T]hey cannot possibly show
reliance upon an extrajudicial source; and can only in the rarest
circumstances evidence the degree of favoritism or antagonism
required ... when no extrajudicial source is involved. Almost
invariably, they are proper grounds for appeal, not for recusal.
Second, opinions formed by the judge on the basis of facts
introduced or events occurring in the course of . . . current . . . or
... prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make a fair judgment impossible.
Thus, judicial remarks during the course of trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.

Jd. at 555 (citation omitted). The Court determined that the lower court's rulings, statements
(assertedly made with an anti-defendant tone), and admonishments of counsel and parties
(whether legally supportable or not) were inadequate grounds for recusal, because all occurred in
the course of judicial proceedings, and none displayed deep-seated and unequivocal antagonism
that would render fair judgment impossible. /d. at 556 . .
There is no question that the judge took an active role in the Rock ofAges proceeding at
trial. He frequently asked questions of witnesses to clarify his understanding of the issues under
examination and to expedite the lengthy trial. He interrupted the examination of witnesses to
encourage the parties to stipulate to issues and shorten the examination. In addition, the judge
announced to counsel what, in his view, were the significant issues in the case, to allow them to
tailor their examination of witnesses. Generally in response to objections from the Secretary's

might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding....

149

counsel, thejudge ·c ut offROA's counsel's use ofhypothetical questions that strayed too far
from the facts of the case. On occasion, the judge admonished ROA's counsel to maintain the
decorum of the proceeding.
Under the relevant Commission rule and caselaw and analogous federal statute and cases,
we conclude that there is no basis for Medusa's motion requesting the judge to recuse himself.5
The judge's actions were well within the boundaries ofhis role in conducting the trial. See
Liteky, 510 U.S. at 556. (judicial rulings, routine trial administration efforts, and ordinary
admonishments to counsel and witnesses are inadequate grounds for disqualification); see also
Secretary of Labor on beha(fo_(Clarke, 7 FMSHRC at 993 (July 1985) ("[a]mong a judge's
specific obligations ... is a duty to admonish counsel, when necessary"). In particular, we note
that a judge has wide discretion to interject questions in order to clarify testimony. See Dewy v.
City of Gloucester, 9 F.3d 191 , 194-95 (I st Cir.l993) ("u1ere active participation by the judge
does not create prejudice"); see also United States v. Webb. 83 F.3d 913, 917 (7th Cir. 1996) (a
judge is not prohibited from asking questions to clarify an important issue in the case); United
States v. Olmstead, 832 F.2d 642,648 (lst Cir.l987) (comments and questions remedied leading
questions, clarified lines of inquiry, or developed witness' answers and were within court's
discretion), cert. denied, 486 U.S. 1009 (1988). Fmther, ajudge's actions at trial in seeking to
avoid repetition in examining witnesses and limiting use of hypothetical questions are proper.
See De.~jardins v. Van Buren Community Hmpital, 969 F.2d 1280, 1282 (1st Cir. 1992) (judge's
request that counsel not be repetitive and follow proper procedures in asking questions not an
abuse of discretion). Finally, the judge's placing on the record his concern about counsel's
throwing his glasses during an off-the-record discussion was an appropriate response to counsel's
conduct. See Arthur Pierson & Co. v. Provimi Veal Corp., 887 F.2d 837,839 (7th Cir. 1989)
(quoting FTC v. Amy Travel Service. Inc., 875 F.2d 564, 576 n.l3 (7th Cir. 1989)) ("[f]riction
between court and counsel does not constitute bias"). In sum, none of the judge's actions cited in
Medusa's brief, either individually or cumulatively, indicate that the judge harbored
inappropriate bias towards counsel that is grounds for recusal in this case.
We further reject Medusa's argument that the Commission must reassign the case in
order to avoid the appearance ofbias. M. Br. at 1; M. Reply Br. at 4-5; Oral Arg. Tr. at 30. This
record does not indicate an appearance of bias. Even if it were present, appearance of bias is an
insufficient ground upon which to order recusal when the allegation of bias is based on prior
judicial proceedings (as opposed to extrajudicial conduct). See Liteky, 510 U.S. at 552-53 & n.2,
556; Baldwin Hardware Corp. v.· Franksu Enterprise Corp., 78 F.3d 550, 557-58 (Fed. Cir.
1996). Cf Nichols v. Alley, 71 F.3d 347, 350-52 (1Oth Cir. 1995) (based on objective
considerations, a reasonable person would have reason to question judge's impartiality to preside
over trial of Oklahoma City bombing conspirator because of extrajudicial considerations,

5

In Rock ofAges, 20 FMSHRC _ , Nos. YORK 94-76-RM through 94-83-RM
(February 24, 1998), the Commission reviewed the identical judicial conduct at issue in this case.
We concluded that there was no basis for reversing the judge based on his conduct of the trial.

150

including damage.to judge's chambers and courthouse and injury to his staff from the bombing).6
We reject Medusa's apparent theory that a mere allegation of bias in one case may serve as
grounds for recusal of that judge (and reassignment) in all subsequent cases involving the same
party or counsel.
III.

Conclusion
For the foregoing reasons, we affirm the judge's order denying Medusa's motion for
recusal. 7

6

UMWA on behalfofRowe v. Peabody Coal Co., 7 FMSHRC 1136 (August 1985), is
readily distinguishable. That decision, which addresses disciplinary sanctions of a judge, refers
to a prior reassignment order of the judge in the proceeding that was issued "to avoid either the
appearance or existence of judic-ial bias." ld at 1138. However, the judge's conduct in that
proceeding involved extrajudicial incidents, including several ex parte contacts with
representatives of one of the parties. ld 1140-44.
7

As noted above, Medusa moved to strike a portion of the Secretary's brief to the
Commission which stated that the assertion that the judge is biased must be evaluated "in light of
the fact that Mr. Chajet has made a practice of making meritless accusations of impropriety
against judges, other collnsel, and parties in litigation., S. Br. at 10-11, cited in M. Reply Br. at
5-10. We vote to grant the motion to strike and, accordingly, the motion is granted. The
referenced portions of the Secretary's briefhave not been relied on in our decision in this matter.

151
'

Commissioner Marks, concurring in part and dissenting in part:
I concur in the result reached by my colleagues in affirming Administrative Law Judge
Feldman's denial of Medusa's motion for recusal. However, I find inexplicable the majority's
refusal to use Attorney Chajet's name throughout most of their opinion. There were two
counsels representing Medusa in this case, Paul Wilson and Henry Chajet, both of the Patton
Boggs law firm. According to the Secretary of Labor, Mr. Wilson was the lead counsel. The
recusal motion was mad~ as a result of matters that affected Mr. Chajet, not Mr. Wilson. It was
Mr. Chajet who claimed he had experienced the judge's "personal bias." Maj. slip op. at 3, line
22. It was Mr. Chajet who claimed that the judge "interject[ed) repeatedly" during his crossexamination, and that he was encouraged to withdraw objections to the way the hearing was
being conducted (maj. slip op. at 3, lines 29, 32-33), and it was Mr. Chajet who claimed that the
judge' s displeasure assertedly increased with the filing of the brief with the Commission in the
Rock ofAges appeal. Maj. slip op. at 4, line 1. It was Mr. Chajet who objected to the judge's
conduct of the Rock (~fAges hearing (Maj. slip op. at4, line 3) and to the judge's admonishment
ofhim for throwing off his glasses during an off-the-record conference. Maj. slip op. at 4. lines
3-5. It was Mr. Chajet's affidavit that swore that ·'Judge Jerold Feldman bears personal bias
against me." Maj. slip op. at 4, lines 8-9. Again, it was Mr. Chajet who claimed that the judge
cut off his use of hypothetical questions. Maj. slip op. at 7, line I. And it was Mr. Chajet that
the judge admonished for lack of decorum. Maj. slip op. at 7, lines 2-3. Finally, it was Mr.
Chajet who threw his glasses during an off-the-record discussion. Maj. slip op. at 7, lines 21-22.
The opinion sustaining the judge's order denying Medusa's motion for recusal should
have specifically indicated that Mr. Chajet, and not Mr. Wilson, was the recipient of the trial
·
judge's actions.
I dissent from the majority's granting Medusa's motion to strike, believing that in light of
the dispositio~ of this case there is no need to reach that matter. I must say, however, as I did at
the oral argument in this case - that for the Secretary to state in her brief that Mr. Chajet has
made a practice of making meritless accusations of impropriety against judges, other counsel,
and parties in litigation without the slightest bit of evidence being presented to the Commission
to sustain those charges (even though the Secretary's counsel was again given the chance to do so
at the oral argument) is in my opinion conduct unbecoming that which one expects from the
Secretary's legal staff.

Marc Lincoln Marks, Commissioner

152

Distribution

Henry Chajet, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037

Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 .Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

153

154

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CH~RCH, VIRGINIA 22041

fEB 5 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)
on behalf of CHARLES H. DIXON,
BERNARD EVANS, RICHARD
GLOVER, EDGAR OLDHAM,
MARK MARCH, DON RILEY,
CHARLES JOHNSON AND ELEVEN
(11) UNAMED EMPLOYEES OF
PONTIKI COAL CORPORATION
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 94-1274-D
MSHA Case No. PIKE CD 94-16
Mine ID No. 15-09571
Pontiki No. 1 Mine

V.

PONTIKI COAL CORPORATION
Respondent

ORDER LIFTING STAY I DECISION APPROVING SETTLEMENT
Before:

Judge Melick

This ~ase is before me upon a complaint of discrimination under Section 105(c) of the
Federal Mine Safety and Health Act of 1977 (the Act) in which the Secretary also seeks a civil
penalty of$1,500.00. The Secretary has filed a motion to approve a settlement agreement and to
dismiss the case. Respondent has agreed to pay the proposed civil penalty of$1,500.00, in full.
I have considered the representations and documentation submitted in this case, including
Respondent's agreement to allow a non-employee, union member to be designated and serve as a
miner's representative for purposes ofMSHA inspections at a non-union mine, and I conclude
that the proffered settlement is acceptable under the criteria set forth in Section 11 O(i) of the Act.
WHEREFORE, the stay order issued July 25, 1997, is hereby LIFTED, the motion for
approval of settlement is GRANTED, and is ORDERED that Respondent pay a penalty of
$1,500.00, within 30 days of this order.

Gary Melick
Administrati
703-756-6261

155

Distribution:
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, 1N 37215-2862 (Certified Mail)
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring, LLP, 1001 Pennsylvania
Avenue, N .W., Washington, D.C. 20004-2595 (Certified Mail)

156

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

FEB 1 1 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 97-128
A.C. No. 36-06475-03553

V.

Homer City Coal Processing Plant
HOMER CITY COAL PROCESSING CORP., :
Respondent
DECISION
Appearances:

Before:

Ronald M. Miller, Conference and Litigation _Representative,
U.S. Department of Labor, MSHA, Hunker, Pennsylvania for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll Professional Corporation,
Pittsburgh, Pennsylvania for Respondent.
Judge Weisberger:

This case is before me based upon a petition for assessment of penalty filed by the
Secretary of Labor (" Secretary") alleging a violation by Homer City Coal Processing Corp.,
("Homer City") of 30 C.F.R. Section 77.404(a). Pursuant to notice, a hearing was held in
Johnstown; Pa., on November 13, 1997. Each party filed a brief on January 21, 1998.

I.
Homer City operates the Homer City Coal Processing plant located in Indiana County,
Pa. The plant processes coal for a generating station. Within the plant, coal is conveyed to
various points by conveyor belts. A series V -shaped structures ("chairs'') containing two-wing
rollers, one located on the walkway side of the belt and the other on the far side, and a bottom
roller, to support and guide the belt.

II.
On November 13~ 1996, John H. Kopsic, an MSHA coal mine safety and health
specialist, inspected the No. 5 conveyor belt at the subject site. He indicated that starting at the
belt tail, 16 of the first 23 chairs contained rollers that were frozen or stuck. He said that he

157

observed a lot of material, most of it coal 1, on the rollers, belt structures, frame, and under the
belt. He indicated that the material was caked on some of the rollers. According to Kopsic, he
observed flat spots on those rollers that were not turning. He indicated that the flat spots were
created by the belt rubbing on the rollers that did not tum. According to Kopsic, two rollers were
warm to the touch. One was under the decant chute, and the other was approximately eight feet
away toward the head. The belt was in contact with these warm rollers, material was caked
around them, and they were not turning. Kopsic indicated that he tested approximately a half
dozen wing-rollers on the walkway side and they would not tum. According to Kopsic because
rollers were not turning, when the belt would slide over these rollers, it would create friction
which could lead to smoke. He opined that employees working in the upper floors of the plant
could be overcome by the smoke.
Kopsic issued a§ 104(a) citation alleging a violation of30 C.F.R. § 77.404(a) which
provides as follows: "[m]obile and stationary machinery and equipment shall be maintained in
safe operating condition and machinery or equipment in unsafe condition shall be removed from
service immediately."

III.
David William Anderson, Homer City's health & safety director and equipment
supervisor, testified that he was with Kopsic at the tail of the belt at approximately 7:50a.m. on
November 13, and that the belt was in operation at that time. He said that he checked every
wing-roller that was not turning, and with the exception of two near the top, he was able to get
the rest to pivot with only "minimal force" (Tr. 138). He indicated that because the belt was not
touching the rollers that did not turn with the belt running, no friction was created. He also
opined that the accumulations that were present were typical of that belt, and did not present any
hazards. He indicated that he did not see any flat spots on the rollers.
A video of the cited area, was taken a few weeks after November 13, 1996. According to
Anderson, the condition of the cited area in the video is the same as seen by him on November .
13 with the exception of two chairs that had been replaced the Saturday after November 13. The
video indicates some rollers that-were not turning. However, the moving belt was not in contact
with these, or other rollers. He opined that there was no danger of fire or smoke inasmuch as the
belt was not in contact with any' of the rollers that were not turning on November 13. Anderson
also indicated that under nonnal operations the belt does not touch the rollers. He also noted the
presence of a fire hydrant and fire extinguishers in the areas.
In the same fashion, Donald J. Farabaugh, the midnight shift maintenance foreman who
was present with Kopsic on November 13, indicated that the belt was not running on the rollers.
He said that he did not see any condition that led him to an opinion that the belt was unsafe.

1 He indicated that there could be other material mixed in with it.

158

Frank LoPresti, the shift foreman, indicated that on Noyember 13, Kopsic pointed out to
him the rollers that were not turning, and a "couple oflittle" flat spots (Tr. 224). · He indicated
that there was not anything that he thought was signjficant. LoPresti opined that in normal
operation the belt does not come in contact with the rollers due its curvature and that it is
normally approximately 18 inches above the rollers. He indicated that based on his experience,
the belt that he saw on November 13 did not present a hazard.
IV.
I accept the testimony of Homer City's witnesses that in normal operations the belt does
not touch the rollers and runs above the rollers. Also, I note Anderson's specific testimony that,
the morning the belt was cited, when he was not in the presence of Kopsic, he noted rollers that
were not turning with the belt running, as they were located in areas where the belt ran above the
rollers. Homer City refers to Anderson's testimony that two of these rollers would not tum by
hand, and argues that since they were not in contact with the belt, no violation existed. I reject
Homer City's argwnent and testimony for the reasons that follow.
I observed Kopsic's demeanor and found his testimony credi.ble that, as observed by him,
on November 13 the belt was riding on the flat spots of rollers, and was in contact with two
rollers. Robert G. Nelson, a supervisor inspector who accompanied Kopsic in his inspection of
the belt at issue, corroborated that "the belt was touching the rollers" (Tr. 120). John Bencic, the
union representative who accompanied Kopsic indicated in response to a leading question that he
observed "rollers that were not turning that had the belt running over top of the rollers that's in
contact with these rollers that were not running (sic)" (Tr. 92). None of Homer City's witnesses
were with Kopsic at the time he made his observations, and thus could not contradict his
eyewitness testimony as to what he observed at the time that he made his inspection. Also, since
Kopsic did not point out the warm rollers to Homer City's agents, they could not contradict his
testimony that tw9 rollers that he touched were warm. Further, although Anderson indicated that
he did not see any f)at spots, LoPresti noted a couple of little spots. Moreover, since Anderson
conceded that Kopsic did not point out flat spots to him, it was not possible for him to contradict
Kopsic' s testimony regarding the specific flat spots that he had observed. Based on these
.
reasons, and my observations of the inspectors' demeanor, I accept their testimony regarding
their observations. Based on th~ inspectors' testimony, I find that, when cited, there was coal
material on some rollers, that the belt was in contact with rollers that were not turning, that some
rollers had flat spots, and two rollers were warm to the touch. It now must be resolved whether
these conditions constituted a violation of Section 77.404(a) on the ground that the belt was not
longer "in safe operating condition"2•
2 Homer City argues that Section 77.404(e), supra, is violated only if it is established that

an operator does not maintain the equipment in a safe operating condition and fails to remove it
from service. Based on Ambrosia Coal & Construction Co., 18 FMSHRC 1552, 1556 (1996), I
reject this argument and find that, to prevail herein, the Secretary need establish only the
equipment was not maintained in safe operating condition.

159

v.
In Alabama By-Products Corporation. 4 FMHSRC 2128, 2129 (December 9, 1982), the
Commission held that the following standard is to be used in deciding whether equipment is in
safe or unsafe operating conditions3, " ••• the alleged violative condition is appropriately
measured against the standard of whether a reasonably prudent person familiar with the factual
circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the
mining industry, would recognize a hazard warranting corrective action within the purview of the
applicable regulation ;'~ Essentially, according to Kopsic, approximately 16 chairs contained
rollers that were not turning, and the belt was riding on rollers that had flat spots. He opined,
that due to the presence of coal material, this condition presented a friction source as further
indicated by the presence of two warm rollers. I conclude that a reasonably prudent person,
familiar with the violative conditions that I have found, would recognize that the belt was in an
unsafe condition (See, Alabama By-Products. 4 FMSHRC supra). As stated by the Commission
in ;Alabama By-Products. 4 FMSHRC supra, at 2131, as follows:
The danger posed in underground coal mining by a friction source that will lead to
a heat buildup in an area where coal accumulations could occur is obvious.
Where such dangers are present due to defects in the operating condition of
equipment, that equipment cannot be considered in safe operating condition.
I take cognizance of Anderson's testimony regarding the presence of extinguishers and
fire hydrants in the area. I also note Kopsic's testimony that the area was very wet, and that he
did not observe any smoke, fire, or hot rollers, and that any smoke produced by friction of the
rollers of the belt can be seen or smelled by miners who would then extinguish the fire with the
fire extinguishers and hoses in the area. In this connection, I note the Commission's discussion
in Alabama By-Products, 4 FMSHRC supra, at 2131, as follows:
In light of the nature of the danger, the evidence relied upon by the operator
concerning other conditions in the area, ~., that the belt was wet and fireresistant, the area was adequately rock-dusted and ventilated, and coal
accumulations were not then present, is not controlling as to whether unsafe
condition existed.

an

In the same fashion, I fmd that the lack of presence of smoke, fire, or hot rollers, to be not
controlling as to whether an unsafe condition existed.
For all the above reasons, I find that it has been established that Homer City did violate
Section 77.404(a), supra.

3

Alabama By-Products supra involves 30 C.F.R § 75.1725(a) whose wording is the same
as that set forth in Section 77.404(a) supra.

160

VI.
Accordmg to Kopsic the violation was significant ans substantial due to the presence of
stuck rollers and flat spots, and the amount of material on the stuck rollers, and on the belt
structures.
A "significant and substantial, violation is described in section 104(d)(1) of the Mine Act
as a violation "of such nature as could significant and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." 30 C.F .R. § 814(d)( 1). A violation is
properly designated significant and su}?stantial, "if, based upon the particular facts surrounding
the violation there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Division. National Gypsum Co., 3
FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC I, 3-4 (January 1984), the Commission explained its
interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum the Secretary of Labor must prove: (1) the
underlying violation of a mandatory safety standard; (2) a discrete safety hazard -that is, a measure of danger to safety-- contributed to be the violation, (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
In United States Steel Mining Company. Inc., 7 FMSHRC 1125, 1129, the Commission
stated further as follows:
We have explained further that the third element of the Mathies formula required
that the Secretary establish likelihood that the hazard contributed to will result in
an event in which there is an injury. U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in accordance with the language
of section 104(d)(1 ), it is the continuation of a violation to the cause and effect of
a hazard that must be significant and substantial. U.S. Steel Mining Company.
~. 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.. Inc., 6
FMSHRC 1573, 1754-75 (July 1984).
I note the presence of stuck rollers, flat spots, and two wann rollers. However, aside from
Kopsic's conclusion that there was "a lot of material" on the rollers, belt structures, frames, and
under the belt, there is no evidence in the record to make a specific finding of the amount of coal
material present. Also, it would appear that in normal operations the belt is not in contact with
the rollers. I thus find that the third element in Mathies bas not been established and that the
violation is not significant and substantial.

161

VII.
Taking into account the presence of extinguishers and hydrants in the area, as well as the
fact that the area was wet, and considering the fact that in nonnal operations the belt does not
come in contact with the rollers, I fmd that the gravity of the violation herein was low. It has
been stipulated that the level of Homer City's negligence was low. Considering also the history
of violations as well as the good faith efforts expended to abate the violation, I find that a penalty
of $20 is appropriate.

ORDER
It is ordered that, within 30 days of this decision, Homer City pay a civil penalty of $20.

ke~
Administrative Law Judge

Distribution:
Ronald M. Miller, Conference and Litigation Representative, U.S. Department of Labor, MSHA,
RR 1, Box 736, Hunker, PA 15639 (Certified Mail)

R. Heruy Moore, Esq., Buchanan Ingersoll Professional Corporation, One Oxford Centre, 301
Grant Street, 20th Floor, Pittsburgh, PA 15219-1410 (Certified Mail)
/It

162

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

FEB 17 1998

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 95-214
A.C. No. 15-03178-03789

V.

Ohio 11 Mine
ISLAND CREEK COAL COMPANY,
Respondent

DECISION ON REMAND
Before:

Judge Hodgdon

On January 30, 1998, the Commission issued a decision in this case reversing my
conclusion that an escape of methane from a cut-through core drill hole into a crosscut being
mined between the No. 5 and 6 entries on the 004 section did not constitute an unplanned
inundation of gas requiring the immediate reporting of the accident to the Secretary' s Mine
Safety and Health Administration (MSHA). Island Creek Coal Co., 20 FMSHRC 14 (January
1998). Finding that Island Creek did violate section 50.10, 30 C.F .R. § 50.1 0, by not reporting
the accident, the case was remanded to me 4'for assessment of an appropriate civil penalty." Jd
at26.
·

Civil Penalty Assessment
The Secretary has proposed a penalty of$1 ,000.00 for this violation. However, it is the
judge's independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section 110(i) of the Act, 30 U.S.C. § 820(i). Sellersburg
Stone Co. v. FMSHRC, 136 F.2d 1147, 1151 (7111 Cir. 1984); Wallace Brothers, Inc.,
18 FMSHRC 481, 483-84 {April 1996).
In connection with the penalty criteria, the parties have stipulated that payment of the
proposed penalty would not affect Island Creek's ability to remain in business. (Tr. 33.) The file
indicates that while the mine is small to medium sized, its controlling entity is a very large
company. The file also indicates that Island Creek's history of prior violations is good. There is
no evidence that the company did not abate this violation in good faith, so, to the extent it is
relevant for a reporting violation, I find that Island Creek demonstrated good faith in attempting
to achieve rapid compliance after notification of the violation.

163

The next criterion to be considered is the gravity of the violation. The inspector found
the violation to be a "significant and substantial" one, affecting one person with the reasonable
likelihood of suffering an injury that would result in lost workdays or restricted duty.
Notwithstanding the inspector's characterization of the violation as "significant and substantial,"
there has been no finding on that issue in this case. Since resolution of the issue affects a
detennination on the gravity of the violation, I find the violation to have been "significant and
substantial" for the reasons set forth below.
A "significant and substantial" (S&S) violation is described in Section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 {Aprill981).
In Mathies Coal Co. , 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 10304 (5th Cir. 1988), a.ffg Austin Power, Inc., 9 FMSHRC 2015,2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in tenns of"continued nonnal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 1007 (December 1987).
The inspector's testimony concerning this issue was as follows:
THE COURT: Mr. Coburn, how did the failure to immediately
report this accident make this violation significant and substantial?
A. Because by the time we arrived at the mine was fourteen hours
later. We had no idea what was corning out of the bore holes, what
the people were that were exposed and what they were exposed to,
what controls had been done on the section and everything ....
THE COURT: Well, what would have happened if they had
reported it immediately?
A. We would have issued a (k) order and followed the steps about
removing the miners or whatever was necessary. They would have
to have plans about what they were going to do about removing the
miner and other people.

164

I would not have allowed the miner to be removed under its own
power.
(Tr. 111-12.)

The Commission has held in this case, although not in connection with this issue, that
"MSHA needs to know immediately about inrushes of methane in order to be able to respond
quickly and help prevent explosions and loss of life. Notification is one of the necessary first
steps following an accident that enables MSHA to take appropriate action." Island Creek at 22.
In view of the inspector' s testimony and this statement, I conclude that the failure to immediately
report the accident made in reasonably likely that a reasonably serious injury would result from
the accident. Therefore, I conclude that the violation was "significant and substantial." For the
same reasons, I conclude that the gravity of the violation was serious.
The final penalty factor to be considered is negligence. The inspector described the level
of negligence as "moderate." The Commission held, albeit not on this issue, that the conditions
in the mine "presented a safety hazard that should have alerted Island Creek to the necessity of
immediately reporting the incident as an accident to MSHA." Jd at 24. It also held that " the
actions and stated views of Island Creek representatives support the notion that Island Creek
should have been aware that the core drill hole cut-through was not a routine methane release,
but rather an incident that needed to be reported under section 50.10." /d. at 25. Accordingly, I
conclude that Island Creek was moderately negligent in not immediately reporting this incident.
Taking all of these factors into consideration, I conclude that the $1 ,000.00 penalty
proposed by the Secretary for Citation No. 3859779 is appropriate.

ORPER
Accordingly, Island Creek Coal Company is ORDERED TO PAY a civil penalty of
$1,000.00 for the violation of section 50.10 set out in Citation No. 3859719 within 30 days of the
date of this decision. On receipt of payment, this proceeding is DISMISSED.

~~~

Administrative Law Judge

165

Distribution:
Robin A. Rosenbluth, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Bouelvard, Suite 400, Arlington, VA 22203 (Certified Mail)
John T. Bonham II, Esq., Jackson & Kelly, P.O. Box 553, Charleston, WV 25322
(Certified Mail)

/fb

166

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

fEB~ 1 9 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf ofRONALD MAXEY,
Complainant

: DISCRIMINATION PROCEEDING
: Docket No. KENT 97-257-D
: BARB CD 97-07

v.

: Mine No. 68
: Mine ID No. 15-17497

LEECO, INCORPORATED,
Respondent

DECISION

Appearances:

MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Tony Oppegard, Esq., Mine Safety Project of the Appalachian Research
and Defense Fund of Kentucky, Inc., Lexington, Kentucky,
on behalf of Ronald Maxey;
Marco Rajkovich, Jr., Esq. and Julie 0 . McClellan, Esq., Wyatt, Tarrant &
Combs, Lexington, Kentucky, on behalf ofLeeco, Incorporated.

Before:

Judge Melick

On January 15, 1998, a decision was issued in this matter finding that Ronald Maxey was
discharged by the Respondent, Leeco, Inc., in violation of Section 1OS(c)( 1) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et. seq., the "Act." In that decision the Secretary
was directed to file a brief addressing each of the criteria set forth under Section 11 O(i) of the Act
in support of her proposed civil penalty of $20,000.00. In addition, the parties were directed to
confer with respect to relevant costs and damages.
Section 11 O(i) of the Act provides that in assessing a civil penalty "the Commission shall
consider the operator's history of previous violations, the appropriateness of such penalty to the
size of the business of the operator charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after notification of a
violation." It has been stipulated that the operator herein is large in size. No evidence has been
submitted to show the effect of the proposed penalty on the operator's ability to continue in
business but it has been stipulated that a "reasonable penalty" would not affect the operator's
ability to continue in business. The Secretary observes that the history of violations at the
subject mine for the two years prior to February 10, 1997, consists of87 violations with a

16 7

payment of $20,017.00 in civil penalties. The Secretary also observes that the operator was
charged with violating Section 10S(c) of the Act on June 26, 1996, and for which the Secretary's
proposed penalty of $8,000.00 was paid in full. The Secretary notes that the violation herein was
committed against Mr. Maxey only eight months later.
In the decision in this case issued January 15, 1998, it was determined that Respondent
intentionally discharged Maxey on February 11, for making safety complaints to MSHA and for
causing inspections to be conducted on February 7 and 9, resulting in several citations and
notices-to-provide-safeguards. It was also found in that decision that Respondent had created a
fictional account of its discharge of Maxey in an attempt to cover up its unlawful discharge of
him. Under these circumstances, it is clear that Maxey's discharge was the result ofwillfull and
intentional conduct and not merely negligence.
With the respect to the issue of gravity the Secretary argues in her brief as follows:
With regard to the gravity of the violation, the Secretary equates the injury
suffered by Maxey to a serious injury received in a mining accident. Maxey
simply exercised his right under the Act to report safety violations at Leeco's No.
68 mine to MSHA. In return for exercising his legal right, he was discharged,
humiliated, forced to seek work elsewhere, suffered through appeals of his
unemployment compensation claims, and has had to endure countless hours of
deposition and trial testimony. He was a member of a small community who had
to endure the embarrassment and humiliation of being wrongfully discharged
from his position from February 1997 and is only now being recognized as the
victim of an operator who has been shown to have little regard for the safety of its
employees. While Maxey was out looking for work and wondering how he was
going to meet his monthly financial obligations, Amon Tracey, Everett Kelly and
Talmadge Mqseley continued to draw their salary from Leeco, even though it was
their decision to disregard the law that caused Maxey to lose his job in the first
place.
·
While I do not necessarily agree with the Secretary's contentions and I note that some of
her arguments may be based upon matters beyond the record herein, I nevertheless conclude that
the violation was serious. It may· reasonably be inferred that the actions against Mr. Maxey
would have had a grave impact on those miners contemplating the reporting of health and safety
hazards.
Finally, the Secretary argues that Respondent showed lack of good faith in attempting to
achieve rapid compliance after being notified of the violatjon herein. She notes that when
confronted with the Secretary's complaint of violating Section lOS(c), rather than reinstate
Maxey, Respondent conspired to create a fictional account to .avoid responsibility for his
unlawful discharge. The Secretary's position is correct on this issue and under all the
circumstances, I fmd that a civil penalty of $20,000.00 is appropriate. In reaching this

168

conclusion I have not disregarded the arguments in Respondent's brief. I do not, however, find
those arguments to be persuasive.

ORDER
Respondent Leeco, Inc., is hereby directed to pay a civil penalty of$20,000.00, within 30
days of the date of this decision. The Respondent is further directed to permanently reinstate the
Complainant, Ronald Maxey, and to pay to Mr. Maxey damages of$16,037.26, plus interest to
the date of payment, within 30 days of the date of this decision. A

dA

~ II

Gary
Admi

II

II
!

Distribution:
Mary Beth Bernui, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, 1N 37215 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project of the ARDF of Kentucky, Inc., 630 Maxwelton
Court, Lexington, KY 40508 (Certified Mail)
Marco M. R'ajk~vich, Jr., Esq. and Julie 0 . McClellan, Esq., Wyatt, Tarrant & Combs,
1700 Lexington Fjnancial Center, 250 West Main Street, Lexington, KY 40507 (Certified Mail)

\mea

169

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

FEB 1 9 1998
TANOMA MINING COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. PENN 97-81-R
Order No. 3692732; 1116/97

V.

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

TanomaMine
Mine ID 36-06967

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 97-129
A. C. No. 36-06967-03912

V.

TanomaMine
TANOMA MINING COMPANY,
Respondent
DECISION
Appearances: Pamela W. McKee, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
.
Joseph A. Yuhas, Esq., Barnesboro, Pennsylvania, for Respondent.'
Before:

Judge Hodgdon -

These consolidated cases are before me on a Notice of Contest and a Petition for
Assessment of Civil Penalty filed by Tanoma Mining Company against the Secretary of Labor,
and by the Secretary, acting through her Mine Safety and Health Administration (MSHA),
against Tanoma, respectively, pursuant to section 105 of the Federal Mine Safety and Health Act
of1977,30U.S.C. § 815. Thecompanyconteststheissuancetoitofa 107(a)order,30U.S.C.
§ 817(a). The Secretary's petition alleges three violations of the Secretary's mandatory health
and safety standards and seeks a penalty of $951.00. For the reasons set forth below, I affiim the
order and the citations, as modified, and assess a penalty of$425.00.
A hearing was held on October 7, 1997, in Indiana, Pennsylvania. The parties also
submitted posthearing briefs in the cases.

170

Settled Citation
At the beginning of the hearing, counsel for the Secretary announced that the parties had
settled Citation No. 3692439. The agreement provides that the citation be modified by deleting
the "significant and substantial" designation and that the penalty be reduced from $147.00 to
$75.00. After considering the parties representations, I concluded that the settlement was
appropriate under the crjteria set forth in section llO(i) of the Act, 30 U.S.C. § 820(i), and
informed the parties that I would approve the agreement. {Tr. 12-18) The provisions of the
agreement will be carried out in the order at the end of this decision.

Background
The Tanoma Mine is an underground coal mine, owned and operated by Tanoma Mining
Company, in Indiana County, Pennsylvania. At about 12:30 p.m. on January 15, 1997, miners in
the E-4 section of the mine detected rising levels of methane. The crew was removed from the
section, power on the section was turned off and ventilation changes were made in the section in
an attempt to correct the problem. By mid-afternoon methane levels had been reduced below 1%
and mining was resumed. Nevertheless, William Moyer, the mine foreman, instructed the
afternoon shift foreman to check the methane levels at Evaluation Point El-l (EP El-l)
periodically during the shift.
That evening, the shift foreman called Moyer to advise him that methane in excess of 4%
at been detected at EP E 1-1. Moyer told the foreman to remove everyone from the mine and to
de-energize everything except the fans. He then called Robert DeBreucq, Vice President of
Operations, to inform him of the situation and both men went to the mine. After ascertaining the
situation, DeBreucq called the supervisor of the MSHA field office to advise him what was
happening. The supervisor told DeBreucq that he would send an inspector out in the morning.
Inspector William Sparvieri was called by his supervisor and told to go to the mine in the
morning. Sometime later, the inspector received another call from his supervisor instructing him
to go to the mine that night. He arrived at the mine sometime between 11 :00 p.m. and midnight.
By then, all production personnel had been sent home from the mine by the operator and all
power in the mine had been turned off, except for the fans.
After being advised by mine management about what had occurred and the steps that had
been taken to correct the problem, Inspector Sparvieri began an inspection of the mine in the ·
early morning hours of february 16. While traveling the mainE left return he detected
concentrations of methane ranging from 2.4% to over 5%. Concluding that an imminent danger
existed, the inspector verbally issued a 107(a) order for the area between E-1 and C-12 in the
mine. The order was reduced to writing as Order No. 3692732 when the inspector exited the
mine and served on the company's superintendent at 3:30a.m. The order stated that: "2.4% to
5.2% of methane was detected in the Main E left return between C-12 and where the El bleeder
entry enters the return, a distance of2300 feet. The methane being liberated from the E4 pillar

171

gob where severe bottom heave has occurred." (Govt. Ex. 2.) The order was modified 4 hours
later to include the whole mine as the area closed.
·
Inspector Sparvieri issued Citation No. 3692733 in conjunction with the 107(a) order. It
alleged a violation of section 75.323(e), 30 C.F.R § 75.323(e), because: "2.4% to 5.2% of
methane was detected in the MainE left return between C-12 section and wh~re the El bleeder
entry enters the MainE left return." (Govt. Ex. 3.)
Although the IO'i(a) order was subsequently modified several times to pennit the
company to attempt to solve the problem, it was not terminated until January 23, 1997. While
inspecting the mine on that date to determine if the order could be terminated, the inspector
issued Citation No. 3692734, also for a violation of section 75.323(e), since: ..Methane at the EP
4-2 was measured at 3.4% at a point just before it enters the MainE left return." (Govt. Ex. 6.)

Findings of Fact and Conclusions of Law
The Respondent argues that there was no imminent danger when the inspector issued the
order and that, therefore, it should be vacated. This argument is premised on the belief that a
methane ignition could not occur because no ignition source was present. The evidence in the
case, however, does not support the Respondent's argument. I find that it was reasonable for the
inspector to conclude that an imminent danger existed.
Section 107(a) of the Act states:
If, upon any inspection or investigation of a coal or other
mine which is subject to this Act, an authorized representative of
the Secretary finds that an imminent danger exists, such
.representative shall determine the extent of the area of such mine
throughout which the danger exists, and issue an order requiring
the operator of such mine to cause all persons, except those
referred to in section 104(c), to be with~wn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such imminent
danger and the conditions or practices which caused such imminent
danger no longer exist.
Section 3G) of the Act, 30 U.S.C. § 8020), defmes "imminent danger" as "the existence of any
condition or practice in a coal or other mine which could reasonably be expected to cause death
or serious physical harm before such condition or practice can be abated."
With regard to what constitutes an imminent danger, the Commission follows the law as
set out by the U.S. Courts of Appeals. In Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159,
2163 (November 1989) the Commission stated:

172

In analyzing this definition, the U.S. Courts of Appeals
have eschewed a narrow construction and have refused to limit the
concept of imminent danger to hazards that pose an immediate
danger. See e.g., Freeman Coal Mining Co. v. Interior Bd. ofMine
Op. App., 504 F.2d 741 (7'h Cir. 1974). Also, the Fourth Circuit
has rejected the notion that a danger is imminent only if there is a
reason~ble likelihood that if will result in an injury before it can be
abated. Eastern Associated Coal Corp. v. Interior Bd. of Mine Op.
App., 491 F.2d 277,278 (4'h Cir. 1974). The court has adopted the
position of the Secretary that "an imminent danger exists when the
condition or practice observed could reasonably be expected to
cause death or serious physical hann to a miner if normal mining
operations were permitted to proceed in the area before the
dangerous condition is eliminated." 491 F .2d at 278 (emphasis in
original). The Seventh Circuit adopted this reasoning in Old Ben
Coal Corp. v. Interior Bd. ofMine Op. App., 523 F.2d 25,33 (7'h
Cir. 1975).
In applying this defmition, the Commission has held that: "To support a finding of imminent
danger, the inspector must find that the hazardous condition has a reasonable potential to cause
death or serious injury within a short period of time." Utah Power & Light Co., 13 .FMSHRC
1617, 1622 (October 1991 ). Accord Blue Bayou Sand and Gravel, Inc., 18 FMSHRC 853, 858
(June 1996).
Turning to the facts of this case, the Respondent does not dispute that the inspector
detected methane at over 5% in the MainE left return. Indeed, the analysis of the bottle samples
of the air he.took at the time indicates methane of 5.220% and 5.260%, respectively. (Govt.
Ex. 4.) Nor does the company dispute that, as testified to by Expert Witness Clete Stephan,
methane is explosive in concentrations between 5% and 15%. What it does dispute is whether an
explosion was imminent. Although Tanoma presented no evidence on the issue, it argues that an
explosion was not imminent because there was no ignition source for such an explosion.
When the inspector issued the imminent danger order, the were no miners in the mine
except those permitted by section 104(c) of the Act, 30 U.S.C. § 814(c)_l Therefore, the order
was not issued to withdraw persons from the mine, but to prohibit them from entering the mine
''until an authorized representative of the Secretary determine[d) that such imminent danger and
the conditions or practices which caused such imminent danger no longer exist." Assuming an

1

Section 104(c) provides, in pertinent part: "The following persons shall not be required
to be withdrawn from, or prohibited from entering, any area of the coal mine or other mine
subject to an order issued under this section: (1) any person whose presence in such area is
necessary, in the judgment of the operator or an authorized representative of the Secretary, to
eliminate the condition described in the order ....''

173

imminent danger, this was clearly a proper issuance of an imminent danger order. Eastern
Associated Coal Corp. v. Interior Bd. ofMine Op. App., 491 F.2d 277,278 (41h Cir. 1974).
Mr. Stephan testified as an expert in fires and explosions in underground mining. He
testified that under normal mining conditions in the Tanoma Mine at the time that the inspector
issued his order, the following potential ignition sources were present: (1) frictional heating
developed during a roof fall, (2) electrical discharges associated with a roof fall, (3) lightening,
(4) defective flame safety lamps, (5) pin holes in compressed air lines, (6) roof bolts broken in a
roof fall, (7) non-permissible electrical equipment, and (8) improperly maintained permissible
electrical equipment. (Tr. 202-03.)
Tanoma argues that these ignition sources are not pertinent because "normal mining
conditions," i.e., production of coal, was not going on at the time the order was issued. This is
the same argument Eastern Associated Coal made in the case cited above. The court rejected this
argument when it held:
Eastern asserted that a danger is imminent only if there is a
reasonable likelihood that it will result in injury before it can be
abated, and that the admittedly dangerous conditions here did not
constitute an "imminent danger" because Eastern had voluntarily
withdrawn miners from the affected area prior to issuance of the
order. The Secretary determined, and we think correctly, that "an
imminent danger exists when the condition or practice observed
could reasonably be expected to cause death or serious physical
harm to a miner if normal mining operations were permitted to

proceed in the area before the dangerous condition is eliminated. "
(Emphasis added).

/d. Accordingly, I ·also reject the argument and conclude that Inspector Sparvieri did not abuse
his discretion in finding that an imminent danger existed in this situation necessitating the
issuance of an imminent danger order. See VP-5 Mining Co., 15 FMSHRC 1531,.1536-37
(August 1993). In reaching this conclusion, I give great weight to the unrebutted testimony of
Mr. Stephan and William Francart, an MSHA ventilation expert, who corroborated the
inspector's judgment.
I affirm Order No. 3692732. In doing this, I understand the feeling of management in
this case, as expressed by Mr. DeBreucq, that they did everything that they were supposed to do,
by evacuating the mine and shutting off the power, and yet they still have an imminent danger
order on their record. They did do everything that they were supposed to do and the company
should be commended for it. Tanoma was obviously looking out for the safety of its miners. On
the other hand, the inspector was faced with what was clearly an imminent danger under the law.
He would have been remiss in his duties if he had not issued the order. While I am not aware of
any particular stigma that attaches to an imminent danger order, it appears that both the company

174

and MSHA acted as they should have, and by affirming the order I am certainly not concluding
that the Respondent was in the "wrong" in this instance.
Citation Nos. 3692733 and 3692734

In its brief, the company has conceded that the conditions in these two citations violated
section 75.323(e).2 It contests, however, the inspector's finding that both violations were
"significant and subs~tial" and the level of negligence he attributed to the violations. I agree
that the level of negligence in·the citations should be reduced, but I find that both violations were
"significant and substantial."
Si2nificant and Substantial
The Inspector found both violations to be "significant and substantial." A "significant
and substantial" (S&S) violation is described in Section 104(d)(l) of the Act as a violation "of
such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria). Evaluation of the criteria is made in terms of"continued normal
mining operations." U.S Steel Mining Co., Inc. , 6 FMSHRC 1573, 1574 (July 1984). The
question of whether a particular violation is significant and substantial must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988);
Youghiogheny & Ohio Coal Co. , 9 FMSHRC 1007 (December 1987).
Relying on its argwnents that in this case "normal mining operations" were that the mine
was evacuated and de-energized and for that reason there was no ignition source, Tanoma asserts
that the third element of the Mathies test3 was not met by either cited violation and, therefore,

2

Section ?S.323(e) states: "Bleeders and other return air courses. The concentration of
methane in a bleeder split of air immediately before the air in the split joins another split of air,
or in a return air course other than as described in paragraphs (c) and (d) of this section, shall not
exceed 2.0 percent."
3

The third element is "a reasonable likelihood that the hazard contributed to will result
in an injury." Mathies at 3-4.

175

they were not S&S. This argument is rejected in the S&S context for the same reason it was
rejected when discussing the imminent danger order. "Normal mining operations" means
operations during which coal is being produced, not periods dunng which, for whatever reason,
the mine is idle. In this case it is unrebutted that numerous ignition sources were present during
nonnal mining operations and that this mine liberated in excess of 800,000 cubic feet of methane
a day. Thus, there was a reasonable likelihood that the high concentrations of methane would
result in an explosion causing serious injuries or death. Accordingly, I conclude that both of
these violations were "significant and substantial." United States Steel Mining Co., 7 FMSHRC
1125, 1130-31 {Augusfl985).

The inspector found the level of negligence involved in Citation No. 3692733 to be
"low." His testimony, however, indicates that there was no operator negligence connected with
this violation. When asked why he marked the negligence as "low," he stated:
I come [sic] to the conclusion oflow negligence due to the
fact that this condition occurred through no fault of the operator. It
was a condition that occurred in the [g]ob area. He had no control
over the hea[veJ of the bottom and the release of methane.
However, lo'Y is checked due to the fact that this is an ongoing
problem since approximately 12:30 p.m. on the l5 1h, therefore, we
couldn't say that there was no negligence involved. That's how
the evaluation of low was determined.
(Tr. 87.) He later explained: "I would say for me to make that no negligence, they would have
had to show me a little more effort than saying that we're going to idle that section, we're not
going to send people in there to load." (Tr. 125.)
I agree with the inspector that the operator had no control over the bottom heave in the
gob and the release of methane. I do not agree that the mere passage of time is evidence of
negligence. Nor do I agree that the only thing that the Respondent did when the problem was
discovered was to evacuate the section. The company also made ventilation adjustments, which
reduced the level of methane below 1%. Further, no evidence was presented to suggest what else
Tanoma should have done.
·
I find that when confronted with the methane problem, the company properly evacuated
the section and made ventilation adjustments which appeared to have solved the problem. When
greater concentrations of methane were detected, it became apparent to management that more
than minor ventilation adjustments would be necessary and they began taking steps to confront
that problem. The entire inine was evacuated, MSHA was notified, and steps were being taken
to identify the extent of the problem when the inspector arrived. Under these circumstances, I

176

cannot conclude Liat Tanoma acted negligently. Consequently, I will reduce the level of
negligence for this violation from "low" to "none."
With respect to Citation No. 3692734, the inspector found the level of negligence to be
"moderate." He testified that he made this finding because:
During the source of this entire situation back to January 15th, there
was [sic] ventilation changes made throughout this entire area.
And at this particular location, initially when the air was changed
we experienced methane as high as ten, 12, 14 percent the night of
the original change ....

And the operator had certified people who were agents of the
operator, the mine foreman himself, the superintendents were in
here daily and sometimes as much as two shifts a day. They were
patrolling this area, examining this area, walking this area. And the
fact that methane was present or going to be present at this
location, you know, just moderate ---they knew it was going to be
there. It 's obvious it 's not going to disappear all at once over
night, andjust about everybody that was there was aware that this
problem would probably arise at that location.

[The ventilation] was working properly, it just wasn't
adequate in the E4 gob area to rid that of the methane in that area.
(Tr. 102-03.) (Emp~asis added.)
When he issued the citation, the inspector directed that: "This area shall be monitored by
a certified person until the methane is less than 2.0%." (Govt. Ex. 6.) The citation and the above
testimony constitute all of the ev}dence on this issue. I find the emphasized testimony revealing
on the issue of negligence. There was an unknown concentration of methane in the gob caused
by the bottom heave. Significant ventilation changes, approved by MSHA, reversed the flow of
air in the mine. It was expected that the level of methane would increase at this evaluation point
until the methane was diluted in the gob. Everyone knew this would occur. But that does not
mean that the operator was negligent when it did happen, any more than the company was
negligent when the change was first made and the level was 14%.
Significantly, the inspector did not state what the operator should have done about this
situation. It appears from the fact that he directed that the area be monitored, that the only thing

177

that could be done was to wait for the problem to abate by itself. It apparently did so on
January 26 when the citation was terminated because methane concentrations were below 2%.
(Govt. Ex. 6.) Just as the operator had no control over the cause of the heavy methane
concentrations, it apparently had no control over the length of time it would take to reduce the
level of methane going into the return to workable levels. Accordingly, I conclude that the
company was not negligent in this instance and will modify the citation to reduce the level of
negligence from "moderate" to "none."

Civil Penalty Assessment
The Secretary has proposed penalties of$442.00 and $362.00, respectively, for the
contested citations and the parties have agreed on a penalty of$75.00 for the settled citation.
However, it is the judge's independent responsibility to determine the appropriate amount of
penalty in accordance with the six penalty criteria set out in section 11 O(i) of the Act.
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7'h Cir. 1984); Wallace Brothers, Inc.,
18 FMSHRC 481 , 483-84 (April1996).
In connection with the penalty criteria, the parties stipulated that the Tanoma Mine
produces approximately 506,620 tons of coal per year and the company 622,000, that imposition
of the proposed civil penalties will not affect the operator's ability to remain in business and that
the operator demonstrated good faith in abating the citations. (Tr. 19.) The company's history of
violations indicates a low number of prior violations. (Govt. Ex. 1.) Therefore, I find that the
Respondent's history of prior violations is good. I find that the gravity of Citation Nos. 3692733
and 3692734 was serious, but that the company was not negligent in either instance.
Taking all of this into consideration, I conclude that a penalty of$225.00 is appropriate
for Citation No. 3692733 and a penalty of$125.00 is condign for Citation No. 3692734. As I
have already ~ndicated, I conclude that the agreed upon penalty of$75.00 for Citation
No. 3692439, as modified, is appropriate.
ORDER
Accordingly, Order No. 3692732 in Docket No. PENN 97-81-R is AFFIRMED and
Citation Nos. 3692733, 3692734 and 3692439 in Docket No. PENN 97-129 are MODIFIED by
reducing the level of negligence from "low" to "none" for Citation No. 3692733 and from
"moderate" to "none" for Citation No. 3692734 and by deleting the "significant and substantial"
designation for Citation No. 3692439, and are AFFIRMED as modified.
Tanoma Mining Company is ORDERED TO PAY a civil penalty of$425.00 within
30 days of the date of this decision. On receipt of payment, these cases are DISMISSED.

\/.~~~
i. Todd Ho;;T~
Administrative Law Judge

178

Distribution:

.

Joseph A. Yuhas, Esq., 1809 Chestnut Avenue, P.O. Box 25, Barnesboro, PA 15714
(Certified Mail)
Pamela W. McKee, Esq., Office of the Solicitor, U.S. Department of Labor, 14480 Gateway
Building, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail)

/fb

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ADMINISTRATIVE LAW JUDGE ORDERS

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

January 30, 1998
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 97-243-M
A.C. No. 48-01497-05506 NU

v.
RAIL LINK INCORPORATED,
Respondent

General ChemicafMill

ORDER DENYING SECRETARY'S
MOTION FOR A PROTECTIVE ORDER
Counsel for the Secretary filed a motion seeking a protective order to prevent Rail Link
from taking depositions of Robert M. Friend, District Manager ofMSHA's Rocky Mountain ·
District for Metal/Nonmetal, and Jake H. DeHerrera, the Assistant District Manager. As grounds
for the motion, the Secretary argues that: (1) these individuals have no first-hand knowledge of
the facts in this case; (2) the depositions will, at the most, yield cumulative information; (3) it is
"annoying, oppressive, and unduly burdensome" to require these officials to answer questions
that will be asked and answered by other MSHA officials; (4) these individuals are high level
MSHA officials who do not nave the time to give depositions in each of the many cases filed in
the Rocky Mountai.n District; and (5) it is likely that these individuals will be asked questions
involving agency deliberations that are not relevant and are protected by the deliberative process
privilege. Rail Link opposes the Secretary's motion and the parties briefed the issues.
This case, along with other Rail Link cases that are pending before me, raises issues of
MSHA jurisdiction. Rail Link contends that MSHA does not have jurisdiction over its
operations and employees. Although the penalties are not high, the legal and factual issues are
important to Rail Link.
Commission Procedural Rule 56(b) provides that parties "may obtain discovery of any
relevant, non-privileged matter that is admissible evidence or appears likely to lead to the
discovery of admissible evidence." 29 C.F.R. § 2700.56(b). Rule 56(c) provides that "a judge
may, for good cause shown, limit discovery to prevent undue delay or to protect a party or person
from oppressive or undue burden or expense." Inquiry into the facts that led MSHA to conclude
that it has jurisdiction over the cited facility may produce information that is admissible at the
hearing or that is likely to lead to the discovery of admissible evidence. As a general matter, I

181

hold that deposition questions about MSHA jurisdiction is an appropriate subject for discovery in
this case.
As a general matter, high level executive department officials should not, except in
extraordinary circumstances, be called to testify regarding their reasons for taking official
actions. Simplex Time Recorder Co. V. Secretary ofLabor, 766 F.2d 575, 586 (D.C. Cir. 1985).
High level officials are protected from compulsory testimony because they must be free to
conduct their jobs withou~ the constant interference of the discovery process. Church of
Scientology ofBoston v.JR.S. , 138 F.R.D. 9, 12 (D. Mass. 1990).
I find that Messrs. Friend and DeHerrera are not the type of high level officials that
require such protection. Rail Link's facility is within MSHA's Rocky Mountain District.
Messrs. Friend and DeHerrera, directly or indirectly, supervise the MSHA inspector who issued
the citations. They may have direct information about the issues in this case that would not be
available from other individuals. Although they have important positions within MSHA, they
are not of such a high level that they require special protection from compulsory testimony that
higher level officials require. See Newmont Gold Co., 18 FMSHRC 1304, 1306-07 (July
1996)(ALJ Manning).
The fact that these individuals may not actually have knowledge of facts that will shed
light on the issues raised in this case is not sufficient justification to issue a protective order.
They may have such knowledge and counsel's statement to the contrary cannot be the basis for a
protective order. The Secretary has not shown that the proposed depositions will be oppressive
or will expose these individuals or MSHA to "undue burden or expense."
The Secretary's argument that much of the requested information will be subject to the
deliberative process privilege is not well taken. The fact that objections may be raised to specific
questions in a deposition does not provide a sufficient basis to bar the deposition altogether. It is
not clear at this juncture whether and to what extent the deliberative process privilege will apply.
In an order issued in Newmont Gold Co., 18 FMSHRC 1532 (August 1996), I set forth my
understanding of the application of the deliberative process privilege which may be of use to the
parties in the present case.
Part of the Secretary's concern appears to be that the depositions will get into broad
issues ofMSHA policy governing independent contractor liability and the definition of the term
"coal or other mine" in section 3(h)(l) of the Mine Act. The proposed deponents may not be in
the position to describe the outer limits of MSHA jurisdiction. I agree with the Secretary that a
series of broadly worded hypothetical questions can be burdensome and will often produce
meaningless answers. A discussion of this issue can be found in my order in Newmont Gold Co.,
18 FMSHRC 1709, 1713-14 (September 1996), which I incorporate herein.
In the alternative, the Secretary requests that I set time and scope limitations for the
depositions. I deny the Secretary's request. Nevertheless, Rail Link should understand that the

182

pwpose of the depositions is to gather facts concerning the issuance of the citations at issue,
including the reasons for MSHA' s assertion of jurisdiction. The depositions need not be lengthy
or burdensome.
For the reasons set forth above, the Secretary's motion for a protective order is DENIED.
If Rail Link still wishes to take the depositions of Messrs. Friend and DeHerrera, the depositions
shall be scheduled at a mutually satisfactory time and place.

Richard W. Manning
Administrative Law Judge

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716
Adele L. Abrams, Esq., Patton Boggs, 2550 M Street, NW, Washington, DC 20037-1350

RWM

183

FEDERAL Ml:NE SAFETY AND HEALTH REVJ:EW COMMJ:SSJ:ON
OmCE OF ADMJNlSTRATIVE LAW JUDG.ES
2 SKYLINE, lOth FLOOR
S203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

February 5, 1998

LOCAL 1702, DISTRICT 31, UMWA
on behalf of min.ers,
Applicants

COMPENSATION PROCEEDING
Docket No. WEVA 98-1 0-C

v.
CONSOLIDATION COAL COMPANY,
Respondent

Blacksville No. 2 Mine
Mine ID No. 46-01968

ORDER DENYING MOTION TO DISMISS COMPLAINT
In a motion to dismiss filed by Consolidation Coal Company .(Consol) it is represented
that this Commission received what purports to be a complaint for compensation on July 2, 1997.
Consol maintains that it was not served a copy of said complaint until December 2, 1997, 153
days later.
Commission Rule 7, 29 C.F.R. § 2700.7 governs service of complaints for compensation
but is silent with respect to the time limits for the service of such a complaint. Where a
procedural question is not governed by the Federal Mine Safety and Health Act of 1977, the
Commission rules or the Administrative Procedure Act , the Commission is guided by the
Federal Rule~ of Civil Procedure and the Federal Rules of Appellate Procedure. Commission
Rule 1(b), 29 C.F.R. § 2700.1 (b). Accordingly, the time for the serVice of a complaint following
its filing is governed by Rule 4(m), Federal Rules of Civil Procedure. That rule provides as
follows:

If service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint, the Court, upon motion or on its
own initiative after notice to the plaintiff, shall dismiss the action without
prejudice as to that defendant or direct that service be effected within a specified
time; provided that if the plaintiff shows good cause for the failure, the Court shall
extend the time for service for an appropriate period.
Courts have broad discretion on whether to dismiss an action because of inadequate
service or require that service be made properly. Montalbano v. Easco Hand Tools Inc., 766
F.2d 737 (2nd Circuit 1985), 2 A J. Moore and J. Lucas, Moore's Federal Practice, 'II 12.07 [2.-4]
(2nd Ed. 1996). As a general matter the action will be preserved in those cases in which there is
a reasonable prospect that the service can be accomplished properly. Novak v. WorldBank, 703
F.2d 1305 (D.C. Circuit 1983), Moore's Federal Practice SJJPm. In the instant case, Consol was

184

served with a copy of the Complaint on December 2, 1997. It has not claimed prejudice by the
untimely service and the non-lawyer representativf of the applicants was apparently unfamiliar
with the service requirements. Under the circum~ces, Consol's motion to dismiss is DENIED.
f

j

I

Gary Melick

Administr~ve Law Judge

703 756-6261
Distribution:
Dennis O'Dell, International Health & Safety Representative, UMWA, 310 Gaston Avenue,
Fairmont, WV 26554 (Certified Mail)
Fred Kelly, President, Local 1702, 367 ~Boxers Avenue, Morgantown, WV 26505 (Certified
Mail)
Michael 0. Eddy, Safety Committee, Local1702, Rt. 1, Box 19, Lot 42, Core, WV 26529
(Certified Mail)
Judith Rivlin, Esq., United Mine Workers of America, 900 Fifteenth St., N.W., Washington,
D.C. 20006 (Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh,
PA 15241 (Certified Mail)
\mea

185

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

February 18, 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CnnLPENALTYPROCEEDING
Docket No. YORK 97-29-M
A. C. No. 19-00370-05515

v.
Webster Plant
WEBSTER DUDLEY SAND AND
GRAVEL, INC.,
Respondent
ORDER DENYING MOTION TO APPROVE SETTLEMENT
~

NOTICE OF BEARING

In this civil penalty case, counsel for the Secretary has filed a motion to approve a
proposed settlement. The motion is inadequate, and it is DENIED.

.

'

The motion states the parties believe payment by the Respondent of half the penalty
originally proposed is "in the public interest and will further the intent and purpose of the ... Act."
The motion asks that I accept on faith the representation that 11counsel for the Secretary reviewed
the violations cited and the data which formed the basis for the proposed assessment and ... determined the [settlement amount] is fair and equitable."
While it is reassuring to know counsel bas concluded the settlement 11is fair and
equitable," under the Act, the ultimate judgement on the validity of this conclusion rests with me.
This means that I too must review the violations cited and the data which form the basis for the
proposed settlement. To do so I must know the facts that support the proposed penalties agreed
to by the parties. This is why the Commission' s regulations contemplate the moving party
explain the reasons for the proposed settlement (20 C.P.R.§ 2700.31), and why, when no reasons
are given and there is no basis upon which to judge the proposed settlement, the motion must be
denied.

186

Unless, an acceptable motion to approve the settlement is filed and approved within the
next 10 days, the parties are advised the matter will be heard at 8:30a.m., Friday, March 13,
1998, in Worcester, Massachusetts. A specific hearing site will be designated later. The
requirements of the previously issued notice of hearing are reinstated.

_j)f;V;(f~IJILDavid Barbour
Administrative Law Judge
Distribution:
Ralph R. Minichiello, Esq., Office of the Solicitor, U.S. Department of Labor, One Congress
Street, lith Floor, P. 0. Box 8396, Boston, MA 02114 (Certified Mail)
Dorothy Halloran, Office Manager, Webster Dudley Sand and Gravel, Inc., P. 0. Box 186,
Webster, MA 01570 (Certified Mail)
dcp

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