DECEMBER 1999

COMMISSlON DECISIONS AND ORDERS
12-06-99 Louis W. Dykhoff, Jr. v. U.S. Borax Inc.
12-16-99 Berwind Natural Resources, et al.
12-21-99 Rostosky Coal Company
12-22-99 KenAmerican Resources, Inc.
12-23-99 Gary D. Morgan v. Arch of Illinois

WEST 99-26-DM
KENT 94-574-R
PENN 99-73
KENT 2000-37
LAKE 98-17-D

Pg. 1279
Pg. 1284
Pg. 1374
Pg. 1377
Pg. 1381

KENT 99-171-R
WEVA 99-79
EAJ 98-1
WEST 99-136-M
VA
99-19-M

Pg. 1401
Pg. 1404
Pg. 1410
Pg. 1412
Pg. 1418

ADMINISTRATIVE LAW JUDGE DECISIONS
11-19-99 Excel Mining, LLC (previously unpublished)
12-07-99 Consolidation Coal Company
12-08-99 Black Diamond Construction Inc.
12-15-99 Applegate Aggregates, Inc.
12-17-99 West Sand & Gravel Co., Inc.

i

DECEMBER

1999

Review was granted in the following cases during the month of December:
Louis W. Dykhoff, Jr. v. U.S. Borax Incorporated, Docket No. WEST 99-26-DM.
(Judge Feldman, July 7, 1999) This is a reconsideration of a September 30, 1999 denial
of a previous petition.
Secretary of Labor, MSHA v. Eagle Energy Incorporated, Docket No. WEVA 98-39.
(Judge Feldman, November 16, 1999) Petition filed by Secretary granted.
Excel Mining, LLC v. Secretary of Labor, MSHA, Docket Nos. KENT 99-171-R, etc.
(Judge Melick, November 19, 1999)

Review was denied in the following case during the month of December:
Secretary of Labor, MSHA v. Eagle Energy Incorporated, Docket No. WEVA 98-39.
(Judge Feldman, November 16, 1999) Petition fi led by Eagle Energy denied.

ii

COMMISSION DECISIONS AND ORDERS

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

December 6, 1999
LOUIS W. DYKHOFF, JR.,
Docket No. WEST 99-26-DM

v.

U.S. BORAX INCORPORATED

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
ORDER
BY: Marks, Verheggen and Beatty, Commissioners
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On August 16, 1999, the Commission's
Office of Administrative Law Judges received from Louis W. Dykhoff, Jr. a petition for
discretionary review of a decision issued by Administrative Law Judge Jerold Feldman on July 7,
1999. In his decision, Judge Feldman dismissed a discrimination complaint brought by Dykhoff
under section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3). 21 FMSHRC 791 (July 1999)
(ALJ). Dykhoff s petition was forwarded and received by the Commission's Docket Office on
August 17.
The j udge's jurisdiction over these cases terminated when his decision was issued on July
7, 1999. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by filing a
petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance, it
becomes a finai decision of the Commission. 30 U.S.C. § 823(d)(l). Dykhoffs petition was
received by the Commission's Office of Administrative Law Judge's on the fortieth day, August
16, ten days past the 30-day deadline. Because the Commission did not sua sponte direct review
of the case, Judge Feldman's decision became a final order of the Commission.
On September 30, 1999, the Commission issued an order denying Dykhoffs petition as
untimely filed. 21 FMSHRC 976, 978 (Sept. 1999). The Commission explained that Dykhoff had
avai led himself of the opportunity to bring his case before a judge, and had offered no explanation
for his failure to timely submit a petition for discretionary review. Id. at 977.

1279

On October 12, 1999, the Commission received Dykhoffs Motion for Relief from Default
and/or Reconsideration. In the motion, Dykhoff declares "under penalty of perjury" that he did
not offer an explanation for his late filing because he mistakenly believed that he had 40 days
following issuance of the judge's decision, rather than 30, to file his petition. Mot. at 1. He
further states that he has been unrepresented since the time that Judge Feldman issued his decision
because he can no longer afford counsel. Id. In the memorandum attached to his motion,
Dykhoff states that U.S. Borax, which was represented by counsel throughout the proceedings,
failed to comply with procedural time limits on at least three occasions, without negative
repercussions. Memo. Dykhoff stated that, as an "unschooled miner," he should receive as much
"leeway" as U.S. Borax with respect to timeliness issues. Id. Dykhoff also attached to his motion
various orders documenting in part his allegations that U.S. Borax failed to timely file pleadings.
On November 12, 1999, the Commission received from U.S. Borax an opposition to
Dykhoff's motion for reconsideration. In its opposition, U.S. Borax states that the Commission
should deny Dykhoffs motion because, in its September 30 order, the Commission stated that it
need not invite Dykhoff to provide an explanation for the late filing. Opp'n at 2. Second, it notes
that denial of Dykhoff s motion will not result in a default because Dykhoff has availed himself of
the opportunity to have his case heard before a judge. Id. at 3. Third, U.S. Borax sets forth
reasons for denying Dykhoffs petition for discretionary review on the merits. Id. at 3-4. Finally,
U.S. Borax asserts that the motion was untimely filed. Id. at 4.
Relief from a final Commission judgment or order is available to a party in circumstances
such as mistake, inadvertence, or excusable neglect. 29 C.F.R. § 2700. l (b) (Federal Rules of
Civil Procedure apply "so far as practicable" in the absence of applicable Commission rules); see,
e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782(May1991). Dykhoff, on his own initiative, has
adhered to the Commission's procedural rules for filing a motion for reconsideration, offering an
explanation in the form of an affidavit that, as an unrepresented miner, he mistakenly believed that
he had 40 rather than 30 days to file his petition for discretionary review. 1 The Commission has
previously reopened final Commission orders under Fed. R. Civ. P. 60(b)(l) when parties'
counsel misunderstood the Commission's filing requirements for petitions for discretionary
review. See Turner v. New World Mining, Inc., 14 FMSHRC 76, 77 (Jan. 1992) (finding
sufficient allegation that counsel misinterpreted deadline for filing petition); Boone v. Rebel Coal
Co., 4 FMSHRC 1232, 1233 (July 1982) (finding sufficient allegation that operator's counsel
failed to adhere to instructions to file petition). In addition, the Commission has recognized that it
has held the pleadings of pro se litigants to less stringent standards than pleadings drafted by
attorneys. Rostosky Coal Co., 21FMSHRC1071, 1072 & n.2 (Oct. 1999).

1

Contrary to U.S. Borax's assertions, Dykhoff timely filed his motion for reconsideration.
Although the Commission received the motion on October 12, Dykhoff filed the motion by
registered mail on October 8, within 10 days of the Commission's September 30 order. See 29
C.F.R. §§ 2700.78(a) ("A petition for reconsideration must be filed with the Commission within
10 days after a decision or order of the Commission."); 2700.5(d) ("When filing is by mail, filing
is effective upon mailing.").
1280

Under these circumstances, we reopen the proceedings for consideration by the
Commission of whether to grant Dykhoffs petition for discretionary review.

Marc Lincoln Marks, Commissioner

Theodore F. Verheggen, Co

1281

Chairman Jordan and Commissioner Riley, dissenting:
We would deny Dykhoffs motion for reconsideration. It is significant that the
Commission's September 30 order did not result in placing Dykhoff in default, since he had
already availed himself of the opportunity to bring his case before a judge. In addition, as we
noted in the September 30 order, Dykhoff attached to his petition for discretionary review a copy
of section 113(d)(2) of the Mine Act, 30 U.S.C. § 823(d)(2), which sets forth the deadline for
filing a petition for discretionary review. 21 FMSHRC at 977 n. l. Accordingly, we find his
assertion that he believed he had 40 days following issuance of the judge's decision to file his
petition unpersuasive, and not a sound basis on which to grant this motion.

James C. Riley, Commissioner

1282

Distribution

Louis W. Dykoff, Jr.
16786 Monterey Avenue
North Edwards, CA 93523
Timothy B. McCaffrey, Jr., Esq.
O'Melveny & Myers, LLP
440 South Hope Street
Los Angeles, CA 90071-2899
For U.S. Borax, Inc.

1283

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

December 16, 1999

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

BERWIND NATURAL RESOURCES CORP.,
KENTUCKY BERWIND LAND COMPANY,
KYBER COAL COMP ANY, and
JESSE BRANCH COAL COMPANY

Docket Nos. KENT 94-574-R
through
KENT 94-797-R
and
KENT 94-862-R

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

DECISION
BY: Jordan, Chairman; Marks, Riley, and Beatty, Commissioners
These consolidated contest and civil penalty proceedings, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. ( 1994) ("Mine Act" or "Act"), involve
225 citations and orders issued for alleged violations of mandatory standards at the Elmo No. 5
Mine in Pike County, Kentucky, in connection with an explosion that occurred on November 30,
1993, killing one miner. 18 FMSHRC 202, 205 (Feb. 1996) (ALJ). The citations and orders
were issued by the Department of Labor's Mine Safety and Health Administration ("MSHA") to
AA&W Coals, Inc. ("AA&W"), the company that contracted to operate the mine, as well as
Berwind Natural Resources Corporation ("Berwind"), Jesse Branch Coal Company ("Jesse
Branch"), Kentucky Berwind Land Company ("Kentucky Berwind"), and Kyber Coal Company
("Kyber"). Id. On February 23, 1996, Administrative Law Judge David Barbour issued a
decision in which he concluded that Berwind, Kentucky Berwind and Jesse Branch were not
operators of the Elmo No. 5 Mine within the meaning of the Mine Act. Id. at 233-34, 235-36,
241-43. The judge also rejected the Secretary's theory that Berwind and its subsidiary
corporations constituted a "unitary operator" under the Mine Act. Id. at 233. Finally, the judge
concluded that Kyber was an operator because of its active participation in mine operations and
1284

its authority to participate in the decision-making process regarding the daily development of the
mine through projections. Id. at 240.
The Commission granted cross-petitions for discretionary review filed by the Secretary
and Kyber. The Commission also granted motions permitting amicus curiae participation by the
National Mining Association ("NMA"), the National Council of Coal Lessors, Inc. ("NCCL"),
and Coal Operators and Associates, Inc. ("COA"), in support ofBerwind, Jesse Branch,
Kentucky Berwind, and Kyber (collectively referred to as "Contestants"); and by the United Mine
Workers of America ("UMWA") and the United Steelworkers of America (''USWA") in support
of the Secretary. In addition, the Commission heard oral argument in the case. For the reasons
that follow, we affirm in part, vacate in part, and remand.
I.
Factual and Procedural Background
A.

Contestants' Activities and Scope of Authority

Berwind is a holding company incorporated in Delaware and located in Philadelphia. 18
FMSHRC at 208. Kyber, Jesse Branch, and Kentucky Berwind are all wholly-owned subsidiaries
of Berwind. Id. at 205, 208. Berwind's primary business as a holding company is to oversee the
operations of its subsidiaries. Id. at 208-09. Berwind is also involved in decisions that affect the
general direction of the business of its subsidiaries and, as sole shareholder, has the power to
unilaterally replace the officers of its subsidiaries. Id. at 209. Berwind received periodic
production reports and financial statements from its subsidiaries, which were used to project cash
fiow and monitor their economic performance as wel l as the production and quality of coal mined
at ieased mining property. Id. at 209- 10. Berwind reviewed and approved the budgets submitted
oy its subsidiaries, and allocated capital to each as necessary to meet their budget. Id. at 212.
Expenditures by subsidiaries in excess of budgetary limits were subject to approval by Berwind.
Id. Berwind provided funds to Jesse Branch and Kyber for their operating expenses and capital
expenditures, since neither subsidiary was profitable. Id. Significant capital expenditures of these
companies, such as the purchase of coal preparation plants and the costs of opening new mines,
were approved by Berwi nd. Id. Berwind had no direct relationship with AA& W with respect to
the operation of the Elmo No. 5 Mine. Id. at 211. It never provided funding, loans or advances
to AA&W; did not provide any supplies, materials, machinery, or tools to AA&W for use at the
mine; and did not receive any production or financial reports from AA& W. Id.
Kentucky Berwind is a Kentucky corporation with its principal place of business in
Charleston, West Virginia, and an office in Kentucky. Id. at 208. It owns approximately 90,000
acres of coal reserves in Pike County, Kentucky. Id. Kentucky Berwind leased coal reserves to
21 different lessees in Pike County, including Kyber. Id. at 212. Kentucky Berwind never funded
any of AA&W's mining operations, and it did not provide or sell supplies, machinery or tools to
1285

the Elmo No. 5 Mine. Id. at 210, 236. It did not require AA&W to obtain its approval for the
purchase or lease of mining machinery or equipment, and did not own any of the equipment used
by AA&W at the mine. Id. at 210.

Kyber and Jesse Branch are both Kentucky corporations that lease land and coal reserves
from Kentucky Berwind and contract out the actual mining of the coal. Id. at 206-07. Neither
Kyber nor Jesse Branch are regularly engaged in the extraction of coal. Id. at 207, 228. Kyber
and Jesse Branch both own and operate separate preparation plants at which almost all coal mined
by their contractors is blended, sized, and washed. Id. at 207. Kyber used Jesse Branch
exclusively to provide surveying services, including preparation of mine maps and setting spads, at
mines that it leased. Id. at 228.

In 1984, Kyber entered into an oral lease with Kentucky Berwind for the right to mine
coal at the Elmo No. 5 Mine in return for the payment of rent and royalties to Kentucky Berwind.
17 FMSHRC 684, 689 (Apr. 1995) (ALJ). In April 1991, Kentucky Berwind and Kyber entered
into a written lease for the mine. Id. Meanwhile, during the spring of 1990, Kyber entered into a
contract with AA&W for the mining of coal at that location by AA&W. Id. at 689-90. Jimmy
Walker, the president of Kyber and Jesse Branch, and Steve Looney, vice president of operations
for the two companies, selected AA&W to operate the mine. Id. at 689.
The contract between Kyber and AA&W with respect to mining coal at the Elmo No. 5
Mine was similar to that entered into by Kyber with other contract operators. 1 Id. at 690; Joint
Stipulations of Fact ("JSF") 100. The contract provided for the payment of a variable price to
A.A& W for each ton of coal mined and deposited in a stockpile outside the mine. 17 FMSHRC at
690. The contract required AA& W to obtain all necessary mining permits that were not obtained
by Kyber, and to post all required bonds. Id. The contract also specified that mining was to be
conducted in accordance with mining projections established by Kyber's engineers. Id. at 694.
To prepare for mining, Kyber determined the location of portals to the mine and
::;ontracted with a third party to prepare the area for the development of portals and to establish a
stockpile area. Id. at 691. Kyber also contracted for the construction of a haulage road to serve
the mine and developed drainage ponds for mine runoff. Id. Coal production began at the Elmo
No. 5 Mine in May 1990. Id. at 689. Before the mine opened, Kyber obtained some of the state
and federal environmental permits necessary to conduct mining and paid some of the permit fees.
Id. at 690. A.A&W obtained and paid for the state mining license and posted the state bond. Id.
Using a coal reserve study prepared for Kentucky Berwind several years earlier, Kyber developed

1

This contract was first developed and used by Jesse Branch, and was based upon
contracts in general use throughout the mining industry. Id. at 690.
1286

a coal reserve map that indicated the location of coal reserves that Kyber expected AA&W to
recover. Id. at 694.
AA& W employed about 20 miners at the mine, who produced between 180,000 and
200,000 tons of coal per year. 18 FMSHRC at 206. Mining was conducted by cutting machines,
drilling machines, and explosives. 17 FMSHRC at 689. Most of the mining conducted was
advance mining, under which the main entries were usually driven on 60 foot centers, and rooms
off the entries were driven on 40 foot centers. Id. AA&W and Kyber jointly agreed that mining
could be conducted on 40 foot centers in certain areas. Id. at 695. AA&W provided the
equipment, machinery, and tools necessary to extract coal from the mine and transport it to the
stockpile outside. Id. Once outside, the coal was loaded onto trucks by drivers for independent
trucking companies for transportation to the Kyber preparation plant, using a front-end loader
supplied by AA&W. Id.
Jesse Branch provided map drafting and surveying services at the Elmo No. 5 Mine, and
set spads upon request by AA&W. 18 FMSHRC at 207; 17 FMSHRC at 692. Kyber paid Jesse
Branch a fee for these services that was based upon the volume of coal produced by AA&W. 18
FMSHRC at 207. Jesse Branch employees generally surveyed and set spads at the mine on a
weekly basis. 17 FMSHRC at 692-93. Jesse Branch also prepared all the mine maps used at the
mine, which showed the areas of the mine from which coal had been extracted and the areas in
which future mining was projected. Id. at 692; 18 FMSHRC at 241. In addition, Jesse Branch
employees recorded the height of coal seams and entryways, and noted the locations of pillars and
centers on which mining was conducted, stopping lines, conveyor belt lines, roof falls, and gas
wells that would intersect the mine. 17 FMSHRC at 693. This information was recorded in a
"field book" for the mine that was kept in Jesse Branch's offices. Id. Jesse Branch's engineers
aiso notified AA& W when the cover - the thickness of rock between the mine workings and the
surface - would not sustain the number of entries projected by AA&W, or when the cover
would allow more or wider entries. 18 FMSHRC at 241-42.
The projections for the mine were developed jointly by Kyber and AA&W, but were
subject to final approval by Kyber. Id. at 237. The mining projections showed the direction of
mine development, the number of entries to be developed, the centering to be used for the entries,
the position of cross-cuts, and, in some instances, the overall distance to be mined. Id. Once
approved by Kyber, the projections were incorporated by Jesse Branch into mine maps. 17
FMSHRC at 694. Once the projections were established and approved by Kyber, they could not
be unilaterally modified by AA&W; instead AA&W was contractually obligated to follow them.
18 FMSHRC at 237. If AA&W and Kyber agreed to changes in the projections, they were
incorporated by Jesse Branch in a revised mine map that was then submitted by AA&W to federal
and state regulatory authorities. 17 FMSHRC at 694. Kentucky Berwind had no input into the
formulation of projections for the mine, and had nothing to do with the roof control and

1287

ventilation plans under which the mine operated or mining sequence decisions. 18 FMSHRC at
236.
When AA&W believed that it could not mine to the full extent of the projections, for
safety reasons or because the coal seam became too thin, it notified Kyber. 17 FMSHRC at 694;
JSF 184. Kyber had the right under the contract to reject any proposal by AA& W to deviate from
the projections if it would not lead to the efficient extraction of coal. 18 FMSHRC at 237-38.
Kyber never challenged AA&W's opinion that mining should be discontinued because of safety
considerations, such as poor roof conditions. Id. at 238. It did, however, occasionally deny
requests by AA&W to discontinue mining for other reasons. Id. When Kyber agreed with a
proposal by AA&W to deviate from the mining projections, Kyber notified Kentucky Berwind
and requested it to inspect the area in order to protect Kyber from liability for wasting coal
reserves. 17 FMSHRC at 694, 713-14. Kyber also notified Kentucky Berwind when an area
slated to be mined was removed from the projection. Id. at 714. Kentucky Berwind employees
never disagreed with Kyber and AA&W about the propriety of discontinuing mining in specified
areas of the mine. 18 FMSHRC at 235. Kentucky Berwind could contact Kyber if it believed
that coal was not being mined effectively, but it never did so at this mine. 17 FMSHRC at 696.
Kyber's employees visited the mine occasionally to check on the height and quality of the
coal seam, to carry out its obligation to insure that coal reserves were mined to the greatest extent
possible. Id. Kyber's employees also occasionally visited the site at the request of AA&W. Id.
Although Kyber's employees had the right to go onto the mine property at will, they generally
first notified AA&W before entering the mine. Id.
Kentucky Berwind employees visited the mine quarterly, or upon request, to examine the
workings, ensure that coal was being properly recovered, and check seam heights and tonnages to ·
confirm royalties. 18 FMSHRC at 210-11. After conducting their inspections, these employees
prepared reports on their visits that were used by Kentucky Berwind to track mining operations.
17 FMSHRC at 696. These reports contained information on the percentage of coal projected for
extraction, the average coal production per shift and per month, and the ash content of the coal
mined. Id. at 713. The reports were used to calculate the tonnage of coal mined, the tonnage
remaining to be mined, and the areas to be mined. Id. at 696. Kentucky Berwind inspectors
conducted inspections at the mine twice in 1990, seven times in 1991 , twice in 1992, and five
times in 1993. Id. at 697.
Kyber occasionally contacted AA&W when it felt that the amount of rock in the coal was
excessive. Id. at 697. AA&W sometimes requested a waiver of contractual penalties for low
quality coal when it was mining in an area where the ash content of the coal was unusually high.
Id. at 695. In such situations, Kyber sent a representative to the mine to determine the cause of
the poor coal quality. Id. In some cases, Kyber consulted with Kentucky Berwind regarding

1288

whether mining should continue in that area. Id. Kyber and AA&W would then jointly determine
the best course of action. Id.
Pursuant to its contract with Kyber, AA& W paid all state and federal income taxes, social
security taxes, and unemployment compensation payments for its employees. Id. at 691. Kyber
paid state severance taxes, federal black lung excise taxes, and state and federal reclamation taxes
with funds owed to, and withheld from, AA&W. Id. Kyber paid for electricity supplied to the
mine, and deducted the amount paid from the payments it made to AA&W. Id. at 692. Kyber
also deducted from its payments to AA& W the cost of an electrical substation it had purchased
and installed at the mine. Id.
B.

Proceedings Below

On November 30, 1993. an explosion occurred at the Elmo No. 5 Mine that resulted in the
death of one miner. 18 FMSHRC at 205. Following an investigation of the accident, MSHA
issued 225 citations and orders jointly to AA&W, Berwind, Jesse Branch, Kentucky Berwind,2
and Kyber. Id.
The contest proceedings were bifurcated so that the jurisdictional status of Berwind, Jesse
Branch, Kentucky Berwind, and Kyber could be resolved before the merits of the individual cases
were addressed. Id. at 206. Following extensive discovery, the parties filed 302 joint stipulations
of fact, as well as cross-motions for summary decision on the status of the Contestants as
operators under the Mine Act. Id.
On April 24, 1995, Judge Barbour issued an order and notice of hearing in which he
cienied the Secretary's motion for summary decision and granted the Contestants' motion
regarding the status of Berwind and Jesse Branch, concluding that the undisputed facts
established that these two companies were not operators within the meaning of the Mine Act. 17
FMSHRC at 710-12, 715-16, 717. The judge also denied the Contestants' motion for summary
decision as to Kyber and Kentucky Berwind, concluding that the stipulated facts did not
conclusively establish whether these two entities exercised day-to-day control over the operations
of the Elmo No. 5 Mine, or had the authority to do so. Id. at 706-10, 712-15, 716-17. The judge
concluded that additional evidence was necessary to resolve issues relating to these two
companies, and therefore directed a hearing for the purpose of eliciting additional evidence
regarding whether K.yber and Kentucky Berwind were operators of the mine. Id. at 716-17.
The hearing was conducted on June 27 and 28, 1995, in Pikeville, Kentucky. 18
FMSHRC at 213. On February 23, 1996, Judge Barbour issued a decision in which he
2

MSHA originally issued citations and orders to Berwind Land Company, but later
substituted Kentucky Berwind in its place in the contest proceedings. Id. at 205 n. l.
1289

reconsidered his earlier decision based upon the additional evidence elicited at the hearing.
Addressing the appropriate standard for determining whether Berwind and its subsidiaries were
"operators" of the Elmo No. 5 Mine, the judge concluded that the purpose of the statutory
definition of "operator" in section 3(d) of the Mine Act is "to place responsibility for health and
safety upon those entities that create the conditions at the mine or that have actual authority over
the conditions on the theory that such responsibility will further compliance." Id. at 231. The
judge explained: "Control may be either direct or indirect, but it must be actual. In other words,
an operator must ' call the shots' at a mine regarding its day-to-day operation, or have the
authority to do so." Id. (citations omitted). The judge thus concluded that "in order to establish
an entity as an 'operator' subject to the Act, the Secretary must prove that the entity, either
directly or indirectly, substantially participated in the operation, control, or supervision of the dayto-day operations of the mine, or had the authority to do so." Id. (citations omitted).
The judge rejected the Secretary's argument that Berwind and its subsidiary corporations
constituted a "unitary operator" under the Mine Act on the grounds that this theory represented a
significant deviation from the Secretary's past enforcement policy with respect to interrelated
corporate entities, that it would interfere with the rights of the entities to be treated as separate
corporate entities, and that it could be used to extend jurisdiction without logical limit. Id. at 233.
The judge affirmed his prior holdings that Berwind and Jesse Branch were not operators
of the Elmo No. 5 Mine within the meaning of the Mine Act. Id. at 233-34, 241-43. He found
that the record "contains no suggestion that those who acted for Berwind actually were
controlling and supervising the Elmo No. 5 Mine, or were attempting to do so." Id. at 234.
Instead, the judge found that the record established that Berwind "had virtually nothing to do with
the day-to-day operations of the mine." Id. He concluded that Berwind' s financial involvement
with the mine was " too far removed" from the mine's daily operation to warrant a conclusion that
Berwind played "a substantial role in controlling and supervising the day-to-day operation of the
mine, or [had] the authority to do so." Id. The judge also specifically rejected the Secretary's
position that "Berwind is liable solely because it is part of a group that worked together to make
possible the operation of the [mine]." Id. In addition, the judge concluded that the engineering
services which Jesse Branch provided to AA&W at the Elmo No. 5 Mine, "did not place Jesse
Branch in the position of controlling the day-to-day operation of the mine." Id. at 242.
Based on the evidence adduced at the hearing, the judge also concluded that Kentucky
Berwind was not an operator of the mine. Id. at 235-36. He reaffirmed his prior findings thnt,
while Kentucky Berwind owned the minerals rights at the mine and leased those rights to Kyber,
neither the lease provisions nor the report forms prepared by Kentucky Berwind indicated that it
reserved to itself the right to substantial participation in the operation of the mine. Id. at 234-35;
17 FMSHRC at 713-15. The judge found that, based on the record evidence and the stipulations,
Kentucky Berwind employees who inspected the mine did so to insure that coal was being
recovered properly and to check seam heights and tonnage in order to confirm royalties, and that

1290

Kentucky Berwind never disagreed with Kyber and AA&W about the propriety of discontinuing
mining along particular projections. 18 FMSHRC at 235. He found that Kentucky Berwind's
authority to impose lost coal penalties was not indicative of control or authority to control day-today mining operations, but rather was designed to insure that the coal was mined to the maximum
extent possible, consistent with the protection of its proprietary interest in its mineral rights. Id.
at 236.
Finally, the judge concluded that Kyber was an operator because of its active participation
in the day-to-day operation of the mine and its authority to participate in the decision-making
process regarding the daily development of the mine through the projections. Id. at 240. The
judge found that Kyber possessed "bottom line authority" for determining the direction of mining,
and that it did not give AA&W sufficient authority to act independently to change the direction of
mining within the overall constraints of the projections. Id. at 238-39. He found that, except for
conditions relating to safety, AA&W could not change the direction of mining without the
approval of Kyber. Id. at 239.
II.

Disposition
A.

The Standard for Determining Operator Status3

The Secretary contends that the judge erred in holding that, to be an operator under the
Mine Act, an entity must exercise or have the authority to exercise "day-to-day" controi over the
overall operations of a mine. S. Br. at 29-37. The Secretary argues that the judge's imposirion of
a requirement of substantial "day-to-day" control is inconsistent with the language of the Mine
Act, its legislative history, the statutory purpose, and the relevant case law. Id The Secretary
submits, in the alternative, that to qualify as an operator under section 3(d) of the Act, 30 U.S.C.
§ 802(d), "an entity must exercise or have the authority to exercise substantial control over the
overall operation of the mine." Id. at 29 (emphasis in original). Amici UMWA and USW A agree
with the Secretary that the judge applied an incorrect standard to determine operator status.
UMWA Br. at 2-4; USWA Br. at 1-3, 5. The UMWA also asserts that the economic control that
an owner or lessee exerts over a mine may suffice to render it an operator under the Mine Act.
UMWA Br. at 5-7.
Contestants and amici NMA and NCCL argue that the "substantial day-to-day control"
standard applied by the judge to resolve the operator status of Berwind and its subsidiary
corporations is consistent with, and supported by, the statutory language, applicable legislative

Chairman Jordan and Commissioners Marks, Riley, and Beatty join in Part II.A of this
opm1on.
1291

history, case law and purposes of the Mine Act. B. Resp. Br. at 11-36; NMA/NCCL Br. at 3-14.
Contestants and amici NMA, NCCL and COA further contend that the Secretary's alternative
formulation of the standard for determining operator status is not entitled to deference since it is
unreasonable and contrary to the clear intent of Congress. B. Resp. Br. at 36-38; NMA/NCCL
Br. at 14-17; COA Br. at 16-19. Amicus COA further asserts that the Secretary's attempt to
impose liability on owners and lessees of mineral rights through the adoption of a new standard
for determining operator status would amount to a fundamental shift in the Secretary's
enforcement policy that would threaten the future use of contract mining, and thus can only be
implemented prospectively through legislation or notice-and-comment rulemaking. COA Br. at 416, 19-25.

An operator is defined.in section 3(d) as "any owner, lessee, or other person who
operates, controls, or supervises a coal or other mine or any independent contractor performing
services or construction at such mine[.]" 30 U.S.C. § 802(d).4 This language, without the
independent contractor clause, originated with the Federal Coal Mine Health and Safety Act of

4

Two circuits have issued differing interpretations of the clause in section 3(d) of the
Mine Act "who operates, controls, or supervises a coal or other mine." In Association of
Bituminous Contractors v. Andrus, 581F.2d853, 861-62 (D.C. Cir. 1978), the D.C. Circuit held
that the clause "who operates, controls, or supervises a coal or other mine" only modifies the
preceding noun "other person," thereby rendering any "owner" or "lessee" liable as an operator
regardless of its level of involvement in or control over the mine's activities. Accord Chaney
Creek Coal Corp. v. FMSHRC, 866 F.2d 1424, 1432 n.9 (D.C. Cir. 1989); International Union,
UMWA v. FMSHRC, 840 F.2d 77, 82 n.8 (D.C. Cir. 1988). On the other hand, the Third Circuit
has construed the clause "who operates, controls, or supervises a coal or other mine" to describe
and qualify each noun in the preceding phrase "any owner, lessee, or other person." Elliot Coal
lvfining Co. v. Director, Office of Workers' Compensation Programs, 17 F.3d 616, 629-32 (3d
Cir. 1994). Elliot, which arose under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945
("BLBA"), expressly distinguished Andrus, on the grounds that Andrus was a Coal Act case. 17
F.3d at 631 (citing Bituminous Coal Operators' Ass 'n, Inc. v. Hathaway, 406 F.Supp. 371, 375
(D.C. Va.) (in light of different remedial purposes of the subchapters of this chapter, construction
placed on particular definitions in one subchapter cannot be mechanically applied to all
subchapters), aff'd, 547 F.2d 240 (4th Cir. 1975)). See also Bituminous Coal Operators' Ass 'n
v. Secretary of the Interior, 547 F.2d 240, 245 (4th Cir. I 977) (BLBA case, because of difference
in statutes, does not furnish persuasive authority for resolution of issues in Coal Act case). In this
case, the Secretary does not argue that any owner or lessee is an operator under section 3(d). See
S. Br. at 33 n.13. Rather, as indicated above, the Secretary argues that, to be an "operator," an
entity must "exercise or have the authority to exercise substantial authority over the overall
operation of the mine." Id. at 29 (emphasis in original).
1292

1969, 30 U.S.C. § 801 et. seq. (1 976) (amended 1977) ("Coal Act"). The Senate Report to the
Coal Act states that the operation, control, or supervision may be either direct or indirect. S.
Rep. No. 91-411, at 44 (1969), reprinted in Senate Subcommittee on Labor, Committee on
Labor and Public Welfare, 94th Cong., Part 1, Legislative History of the Federal Coal Mine
Health and Safety Act of 1969, at 170 (1975) ("Coa l Act Legis. Hist."). Because the forms of
participation and authority vary from entity to entity, the question of whether an entity meets the
statutory definition of "operator" must be resolved on a case-by-case basis. When reviewing the
Secretary's decision to designate an entity as an operator under the Act, the Commission will
examine whether the entity has substantial involvement with the mine. In answering this question,
we will not be constrained by the Secretary's requirement of "overall control" or the judge's test
of"day-to-day control." Instead, we will evaluate the participation and involvement of the entity
in the mine's engineering, financial, production, personnel, and health and safety matters to
determine whether that entity qualified as an operator under the Act. See W-P Coal Co., 16
FMSHRC 1407, 1411 (July1994).5 In determining operator status, however, the Commission
will review and evaluate all of these forms of participation and involvement in the operation of the
mine, and no particular factor will be considered controlling. Instead, the Commission will weigh
the totality of the circumstances in determining whether the Secretary could designate the entity
as an operator under the Mine Act.6

B.

The Status of the Individual Contestants as Operators 7

l.

Kyber

Kyber asserts that the judge's finding that it is liable as an operator of the mine is not
supported by substantiai evidence, and contends that the record demonstrates that it lacked the
requisite controi over operations at the mine or the authority to direct the work force employed
there. K. Br. 16-19, 20-25. Kyber argues that its authority to approve changes in the direction of

5

The Commission in W-P Coal expressly declined to address the issue of whether a
passive operator could be properly cited for violations at a mine and 1eft that open for another
day. 16 FMSHRC at 1411 n.5.
6

Commissioner Marks notes that the Secretary has submitted that, in this case, the
Commission need not reach the issue of whether the entities qualified as operators under the D.C.
Circuit's approach. S. Br. at 33 n.13. Commissioner Marks agrees and would therefore leave the
issue for another time when it has been properly briefed. He urges that the Secretary bring the
issue before the Commission at her earliest opportunity.
7

Chairman Jordan and Commissioners Riley and Beatty join in Parts Il.B. l, Il.B.2,
11.B.3, and II.B.4 of this opinion. Commissioner Marks concurs in result in Part II.B. l of this
opm1on.
1293

mining or deviations from mining projections was not indicative of substantial control over
operations at the mine sufficient to render it an operator under the Mine Act. Id. at 21-25. Kyber
asserts that the Secretary relies upon isolated portions of the record and deposition testimony not
in evidence to support the judge's finding that it was an operator of the mine, and ignores other
evidence and facts found by the judge which indicate that it did not exercise or possess sufficient
authority to qualify as an operator. K. Reply Br. at 20-31. In addition, Kyber contends that the
judge's finding of operator status is at odds with Mine Act precedent, which has never held a
lessee of mineral rights liable as an operator merely because it had the contractual authority to
ensure that the production operator extracted all minable coal. K. Br. at 25-30.
The Secretary argues that, although the judge erred by failing to apply the correct legal
standard for determining Kyber's status as an operator, even under the "day-to-day" control test
applied by the judge substantial evidence compels the conclusion that Kyber was the operator of
the mine since it exercised, or had the authority to exercise, substantial control over the mine p lan
which governed the overall mining operation, the mining projections which governed the direction
of mining, and production-related decisions relating to the areas and the manner in which mining
would be conducted. S. Resp. Br. at 2-3, 32-34. The Secretary discounts Kyber's argument that
an owner or lessee of mineral rights can never be an operator under the Mine Act when it has
contracted with an independent contractor to mine the mineral reserve and given the productionoperator broad control over its activities. Id. at 4-14. Amicus UMW A contends that the judge
correctly concluded that Kyber is an operator because of the substantial control it exercised over
operations at the mine. UMW A Br. at 7-9.
Although we have held that it was error for the judge to apply the day-to-day control
::;::andard to determine whether Kyber was an operator of the Elmo No. 5 Niine, we affirm the
judge's conciusion that Kyber qualified as an operator. We think that implicit in the judge's
finding that Kyber exercised day-to-day control at the mine is a finding that Kyber was
substantially involved in the mine's operation. In our view, substantial evidence8 supports this
finding and that Kyber had "bottom line authority" for determining the direction of mining, as well
as that it "denied AA&W autonomy of action within the overail constraints of the projections."
18 FMSHRC at 238-39. Although the mining projections were joiniiy agreed to by AA& Wand
Kyber, the record indicates that Kyber had final authority to approve the projections and "to insist
upon the projections it wanted[.]" Id. at 237. Moreover, the judge found it "clear that Kybcr had
the authority to insist upon the projections it wanted, and that once the projections were approved
8

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 & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
1294

by Kyber, AA& W could not unilaterally modify them." Id. Kyber retained ultimate authority to
reject any proposal by AA&W that it believed would not lead to the efficient extraction of coal.
Id. at 237-38. Based upon the foregoing evidence, the judge reasonably concluded that "Kyber,
not AA&W, had the bottom line authority for determining mining direction, and . .. AA&W
implemented Kyber's directional decisions." Id. at 238.
This evidence supports the judge's finding that Kyber retained more control over the
direction of mining than the typical mine owner or lessee. Id. at 239. As the judge explained:
[T)he owner or lessee of mineral rights has the right to protect its
asset and to try to insure the asset is developed to the maximum
extent possible consistent with sound safety and environmental
practices. Consistent with this right, when the owner or lessee
contracts the mining of its mineral, it is permissible for the entity, in
conjunction with its contract operator, to project an overall course
of mine development. However, once overall projections have
been agreed to, the owner or lessee must give leeway to the
contractor to act independently within the general constraints of
the projections. If it does not afford the contract operator such
autonomy, the lessee or mineral right owner may retain control
sufficient to make it an operator for Mine Act purposes.
In my view, Kyber's relationship with AA&W illustrates
such a situation. Except for conditions relating to safety, AA&W
could not change the direction of mining without Kyber's approval.
. . . When it exercised its authority, the choice faced by AA&W was
either to mine as Kybcr wished or to cease mining - period (Tr.
402). In dictating the course mining had to take and in having the
authority to dictate that course Kyber denied AA&W the autonomy
ofaction within the overall constraints ofthe projections. The
:::>wner or lessee of mineral rights can not deny its responsibility for
the actions of its contract operator, when the contract operator is
not free to choose the course of mining it believes best in this
regard.
Id. (emphasis added). We agree with the judge's conclusion that Kyber's active participation and
its authority to actively participate in the decision-making process regarding the dai ly
development of the mine through the projections were sufficient to render it an operator within
the meaning of the Act. Id. at 239-40.

1295

The judge's conclusion that Kyber was an operator is further supported by other evidence
ofKyber's substantial involvement in decisions concerning the ways in which mining was
conducted and the quality and quantity of coal produced at the mine. Its contract with AA&W
gave Kyber the authority to approve and enforce the mine plan for the Elmo No. 5 Mine, which
governed matters as wide-ranging as the applicable ventilation and roof control plans, and the
number of employees and the types of equipment to be used. 18 FMSHRC at 237 n.5; JSF Ex. C
~ 4.c; Tr. 308-09, 478-79. These considerations, in tum, affected the safety and health of miners.
Although Kyber did not regularly exercise its authority with respect to the mine plan (18
FMSHRC at 237 n.5), its contractual authority over the mine plan may be considered by the
Commission as evidence of the actual relationship between Kyber and AA&W with respect to the
operation of the mine. See Bulk Transp. Servs., Inc., 13 FMSHRC 1354, 1358 n.2 (Sept. 1991). 9
In addition, the involvement of Kyber officials in taking steps to prevent future roof falls as the
result of blasting at the neighboring Corvette mine 10 provides further evidence that Kyber
functioned as an operator of the Elmo No. 5 Mine. The record indicates that Kyber officials were
instrumental in providing notice of the roof fall caused by Corvette's blasting activities and in
developing the ultimate solution for this problem. 17 FMSHRC at 699-700; JSF 301 & Ex. E. 11

9

We do not find the terms of the contract relating to Kyber's authority over the mine plan
to be determinative of its operator status. Rather, the contract is additional evidence of the
relationship between Kyber and AA&W with respect to the operation of the mine. See slip op. at
77 n.11. This is entirely consistent with Bulk Transportation. Interestingly, our dissenting
colleague violates his own restrictive reading of Bulk Transportation when he attempts to rely on
the agreement between Kyber and AA&W to rebut the judge's finding that Kyber retained more
controi over the direction of mining than the typical lessee. See slip op. at 77 nn.9 & 11.

° Kentucky Berwind leased separate coal reserves in a coal seam located above the Elmo

1

No. 5 Mine to an unrelated company, which then contracted with Corvette Mining Company
("Corvette") for the operation of a surface mine to extract the coal. 17 FMSHRC at 699. On
Aprii 8, 1993, a roof fall occurred at the Elmo No. 5 Mine, which was apparently caused by
blasting at the Corvette mine. Id. at 700.
11

Randolph Scott, vice president of engineering for both Kyber and Jesse Branch (JSF
23, 34), notified Kentucky Berwind of the roof fall, after receiving notification from AA&W that
Corvette was "shooting their mine in." 17 FMSHRC at 700; JSF 294 & Ex.Eat 3. Following
additional roof fall problems caused by blasting at the Corvette mine, Kentucky Berwind officials
visited the Elmo No. 5 Mine to examine affected areas of the roof. 17 FMSHRC at 700. On
April 12, 1993, Steve Dale, the chief mine inspector and land manager of Kentucky Berwind, and
two other Kentucky Berwind mine inspectors visited the Corvette mine and the Elmo No. 5 Mine,
where they met with a Corvette official, AA& W vice president Jim Akers, and a representative of
the Kentucky Division of Surface Mine Reclamation Enforcement. Id; JSF 297. Akers was
extremely angry about the April 8 blasting incident, stating that AA&W "almost had four men
1296

Commissioner Verheggen rejects our conclusion that substantial evidence supports the
judge's finding that Kyber was an operator of the Elmo No. 5 Mine, asserting that, "Kyber's
involvement in the mine, which did not include any involvement in the mine's health and safety
affairs, is simply too remote" to render Kyber an operator. Slip op. at 80. Under the substantial
evidence test, however, the Commission is limited to searching for "such relevant evidence as a
reasonable mind might accept as adequate to support [the judge's] conclusion" (supra, at n.8),
and it may not "substitute a competing view of the facts for the view [an] ALJ reasonably
reached." Donovan on behalf of Chacon v. Phelps Dodge Corp., 709 F .2d 86, 92 (D. C. Cir.
1983); see also Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1104 (D.C.
Cir. 1998) ("This sensibly deferential standard of review does not allow [a reviewing body) to
reverse reasonable findings and conclusions, even if [it] would have weighed the evidence

differently."). In reaching his·conclusion that Kyber does not qualify as an operator,
Commissioner Verheggen appears to violate these precepts by proceeding to reweigh the
evidence on an issue on which the judge's determination is well supported by the record.
Commissioner Verheggen's competing view of the record evidence is based in large part
on his assertion that Kyber "played no role in health and safety affairs at the mine." Slip op. at 75.
In our view, however, there can be little question that Kyber's ultimate control over the direction
of mining at the Elmo No. 5 Mine, through its final authority over the mining projections and any
deviations from those projections, had a direct and significant bearing on the conditions
encountered by miners engaged in operations at the mine. The mining projections determine the
direction of mine development, which significantly impacts on such things as roof and rib
conditions and ventilation projections. These factors directly involve mine safety and the
conditions experienced by miners in the course of their duties. This significant element of control,
as well as the other forms of authority exercised by Kyber at the mine, 12 had a direct effect on the
health and safety of those miners, and could be reasonably relied upon by the judge as indicative
of Kyber's status as an operator. Cf Otis Elevator Co., 11FMSHRC1896, 1902 (Oct. 1989)
(finding independent contractor to be an operator under section 3(d) of the Mine Act where its

kiJled" as a result. JSF Ex.Eat 3. When Dale suggested that Corvette limit the frequency of its
blasting activity and the strength of explosives used, Kyber President Jimmy Walker responded by
insisting that Corvette move its blasting operations 500 feet away from the operations of the Elmo
No. 5 mine. 17 FMSHRC at 700; JSF 301 & Ex.Eat 4. Corvette was notified of Kyber's
position, and agreed to move its blasting operations the requested 500 feet. JSF Ex.Eat 4.
12

The record also indicates that, in initially selecting AA&W as the contract mine
operator for the Elmo No. 5 Mine, Kyber was requested by Berwind to assure itself that AA&W
was capable of operating the mine in a safe manner, in order to conform to corporate policy. JSF
97-99.
1297

employees "had a direct effect on the safety of the mine elevators because of their exclusive
control over the safety of the mine elevators"), aff'd, 921 F.2d 1285 (D.C. Cir. 1990).
Despite ample record evidence that Kyber had "bottom line authority for determining
mining direction" at the Elmo No. 5 mine and approving any deviations from the established
mining projections (18 FMSHRC at 238), Commissioner Verheggen focuses on a relatively
narrow exception to this authority, involving deviations based upon safety concerns, to support
his view that Kyber does not qualify as an operator. In our view, however, analyzing only one
element ofKyber's control over operation of the mine does not provide a convincing rationale fo r
rejecting the judge's determination that Kyber qualified as an operator because safety
considerations are only one of several potential categories of factors that could provide a basis for
a proposed deviation from the mining projections. It is undisputed that, with respect to all other
potential grounds for deviations, Kyber had the ultimate approval authority. JSF 187. In
addition, we conclude that the significance of this single limitation on Kyber's authority to
approve deviations from the projections is not nearly as great as our dissenting colleague
suggests. 13 Significantly, there is no evidence of any limitation on Kyber' s authority to question
whether AA& W has in fact raised a valid health or safety concern. Further, once a valid health or
safety concern was raised by AA&W as a basis for a proposed deviation, it would appear that,
even absent the "no-veto" limitation, Kyber's discretion to cancel the proposed change would be
essentially illusory, since it would amount to suggesting that miners should work under unsafe or
unhealthy conditions. We are not prepared to accept any suggestion that Kyber can only qualify
as an operator if it possessed authority to insist on adherence to the projections in the face of
legitimate countervailing safety or health concerns.

13

We think Commissioner Verheggen overstates the nature of this limitation on Kyber's
authority to review and approve any deviation from the mining projections. While Commissioner
'I erheggen asserts that "Kyber could not overrule AA& W's deviations from the mine plan when
they involved matters of safety and health" (slip. op. at 76), the record indicates that any such
restriction was not express, but implied. Indeed, the very stipulation that Commissioner
Verheggen relies upon states only that "[Kyber] interpreted the mining contract to allow [Kyber]
to reject .AA&W Coals' requests to mine less than the full extent of the mine projections, unless
mining conditions made it unsafe to mine those areas." JSF 187 (emphasis added). In fact, the
provision of the coal mining contract between Kyber and AA&W relating to this issue expressly
obligated AA& W .to "[ c]onducl all mining operations ... in accordance with mining plans and
projections prepared by {Kyber's} engineers[.]" JSF Ex. C i14.c. (emphasis added). This fully
supports the judge's finding that, under the express terms of the contract, AA&W was required to
adhere to the mining projections established by Kyber, and that Kyber had the consequent right to
reject any deviation to the projections proposed by AA&W that would not lead to the efficient
extraction of coal. 18 FMSHRC at 237-38.
1298

Commissioner Verheggen's assertion that Kyber had "virtually no involvement" in
financial, production, personnel, or safety and health matters at the mine (slip op. at 80) is
contradicted by the record evidence. Kyber had significant involvement in safety and health at the
mine through its ultimate control over the mining projections and any subsequent deviations from
those projections, which determined the direction and manner in which coal was mined. Kyber
also had the authority to approve and enforce the mining plan, which encompassed matters
including the applicable ventilation and roof control plans. In addition, Kyber paid many of the
initial costs associated with development of the mine, including those incurred for the
development of po11als to the mine, the establishment of a stockpile area, the construction of a
haulage road to serve the mine, the development of drainage ponds for mine runoff, the
acquisition of many of the required federal and state envirorunental permits, and the preparation of
a coal reserve map. Kyber also paid its sister corporation, Jesse Branch, to perform map drafting
and surveying services at the mine. Indeed, the record indicates that Kyber engaged in many of
the same activities at the mine that the Commission found dispositive in its decision in W-P Coal:
it "calculated mining projections, prepared and updated mine maps [through its sister corporation,
Jesse Branch], contacted and visited the mine frequently to discuss production and other matters,
. .. [and) participated in an inspection of the mine." W-P Coal, 16 FMSHRC at 141 1. 14 Thus,
there is clearly substantial evidence in this record to support the judge's finding that Kyber was an
operator. In reweighing the evidence to reach a different result, Commissioner Verheggen
focuses on individual elements of Kyber's control over operation of the Elmo No. 5 Mine, arguing
that each is, in itself, insufficient to support an finding that Kyber is an operator. He errs,
however, in focusing on separate elements of Kyber's control at the mine without considering the
totality of the circumstances, that is, Kyber's overall relationship with the mine, which we find
provides substantial evidence to support the judge's finding. 15
~-

Jesse Branch

.:...ii«= Zybe··, ·;.M-7? Coai was a iessee which " entered into a contract with [independent
~ ::miract operat.or} Top Kat, under which Top Kat extracted the coal in return for royalty
µayrnents f1·orn Vv-F based upon the number of tons of clean coal produced." Id. at 1407.
Significantly, the contract between V.!-P Coal and Top Kat identified Top Kat, not W-P Coal, as
foe entity "responsibie .Lor controlling the mine, hiring miners and comp ly ing with mine safety and
health icors ." i d. at 1408 (emphasis added).
i·'

15

Because we do not adopt the Secretary' s interpretation of the word "operator," we
need not address Kyber's assertion that it lacked notice of the Secretary' s definition of the tem1.
Moreover, because we hold that Kyber is an operator by simply applying a test that is welldeveloped in Commission case law (see W-P Coal, 16 FMSHRC at 1411), Kyber has no claim
that it was not provided notice of its potential liability as an operator.
1299

The Secretary contends that, even under the "day-to-day" control test applied by the
judge, the evidence establishes that Jesse Branch qualifies as an operator of the Elmo No. 5 Mine
based upon the engineering services and ·activities it performed there on behalf of, and in
conjunction with, Kyber. S. Br. at 50-56. Amicus UMWA contends that Jesse Branch qualifies
as an operator of the mine because of the engineering services it performed there. UMW A Br. at
8-9. Amicus USWA contends that the judge erred in finding that Jesse Branch did not have dayto-day control over the mine, and therefore was not an operator. USWA Br. at 4-5. Contestants
argue that the engineering services performed by Jesse Branch at the mine did not give it sufficient
control over mine operations to warrant finding it to be an operator. B. Resp. Br. at 49-50. 16 ·
In determining whether Jesse Branch as a separate entity qualifies as an operator of the
Elmo No. 5 Mine, we note that the services provided by Jesse Branch were relatively limited in
scope, consisting primarily of engineering services including surveying, spad setting and the
preparation of mine maps. The record also discloses, however, that these services played an
important role in determining the direction of mining at the mine, and that Jesse Branch also
provided technical advice to AA& W in connection with the engineering services it provided.
The parties stipulated that the surveying and spad services that Jesse Branch performed at
the mine were necessary so that AA& W could mine in accordance with the mine projections and
the requirements of the Mine Act. JSF 160, 161. In addition, it is undisputed that the mine maps
prepared by Jesse Branch established the projections that AA&W was required to follow when
driving entries in the mine, and also designated the areas in the mine from which coal could not
safely be extracted because of the presence of natural gas wells. 17 FMSHRC at 693; JSF 166,
167, 178, 179. These mine maps prepared by Jesse Branch were required under federal law, and
were submitted to MSHA on a semi-annual basis to show the direction of mining, as part of the
·1entiiation p ian , to facilitate regular ventilation examinations. i 7 FMSHRC at 692-93; JSF 158,
169. Thus, tile engineering services provided by Jesse Branch piayed a key role in determining
the areas to be mined, and the direction of mining conducted, by AA&W at the mine.

ic, ':'he Secretary also argues that Jesse Branch could be found to be an operator of the
mine on the alternative ground that it was an "independent contractor performing services ... at
[a} mine,' ' within the meaning of section 3(d) of the Mine Act. S. Br. at 55 n.21. We decline to
address this argument, however, since the Secretary failed to properly preserve it on appeal.
Under the Mine Act and the Commission's procedural rules, review is limited to the questions
raised in the petiiion for discretionary review. 30 U.S.C. § 823(d)(2)(A)(iii); 29 C.F.R.
§ 2700.70(f). See Wyomi11g Fuel Co. 11/kla Basin Resources, Inc., 16 FMSHRC 1618, 1623
(Aug. 1994), aff'd mem., 8 1 F.3d 173 (10th Cir. 1996); Donovan on behalfof Chacon v. Phelps
Dodge Corp., 709 F.2d at 91 & n.6. The Secretary's petition did not mention this alternative
theory for finding Jesse Branch to be an operator, and instead focused solely on the relationship
between Jesse Branch and Kyber, which is discussed below in Part ILC.3.b. See S. Pet. at 16-17.

1300

In addition, the judge found that Jesse Branch provided AA&W with technical expertise
that AA&W lacked regarding on-site implementation of the projections, the mine cover, and the
number of entries it would sustain. 18 FMSHRC at 241-42. While conducting surveys at the
mine, Jesse Branch employees also collected information concerning the dimensions of the coal
seam, entryways, and coal pillars, and the locations of coal pillars, the centers on which mining
was conducte.d, stopping lines, conveyor belt lines, and roof falls. This information was recorded
in a field book kept at Jesse Branch's offices, and was used to draft subsequent mine maps. 17
FMSHRC at 693; JSF 156. Jesse Branch also inspected the drainage ponds on the surface of the
mine on a quarterly basis, and prepared inspection results that were submitted in an annual
certification report to the Kentucky Office of Surface Mining Reclamation and Enforcement
("OSM"). JSF 209. Employees of Jesse Branch, not AA&W, accompanied OSM inspectors on
inspections of the surface area of the mine, and either Jesse Branch or Kyber corrected any
violations cited as the result of OSM inspections, and paid any associated penalties. JSF 210,
21 1.

We conclude that while this evidence shows that Jesse Branch played an important role in
the operation of the Elmo No. 5 Mine, it does not establish substantial involvement in the
operation of the mine suffi cient to support a conclusion that Jesse Branch, considered by itself,
was an operator of the mine. As the judge observed, the type of surveying and engineering work
performed by Jesse Branch is frequently contracted out because many on-site operators lack the
capacity to perform such work, and is not typically regarded as indicative of substantial control
over the operations of a mine. 18 FMSHRC at 241. The judge also noted that there was no
indication in the record that Jesse Branch denied AA&W the autonomy of decision-making within
the confines of the projections established by Kyber and AA&W, or reserved for itself the
authority for such decision-making. Id. at 242. In addition, the record indicates that when Jesse
Branch provided AA& W with advice regarding the direction of mining or geological conditions, it
was merely suppiying information and related opinions that were beyond the technical expertise of
AA&W. id. Accordingly, we affirm the judge's conclusion that Jesse Branch, considered by
itself, was not an operator of the mine. 17
J.

Kentucky Berwind

The Secretary argues that Kentucky Berwind was an operator because, as the owner of
mineral rights at the mine, it retained control and supervision over the manner in which coal was
mined through its lease agreement with Kyber, even if it chose not to continually exercise that
control. S. Br. at 38-45. In particular, the Secretary relies on periodic inspections conducted by
Kentucky Berwind employees at the Elmo No. 5 Mine, and its involvement in resolving problems
caused by blasting operations at the neighboring Corvette mine, to support its position that

17

In Part II.C.3.b, infra, we consider whether Kyber and Jesse Branch together constitute
a single operator under the Mine Act.
1301

Kentucky Berwind was an operator. Id. at 40-45. Amicus UMWA argues that Kentucky
Berwind maintained and exercised economic control over the mine sufficient to render it an
operator under the Mine Act. UMW A Br-. at 6-7. Amicus US WA contends that the judge erred
in concluding that Kentucky Berwind was not an operator. USW A Br. at 3-5.
Contestants argue that the inherent authority retained by Kentucky Berwind in connection
with operations at the mine was comparable to that generally retained by coal lessors in order to
protect their economic interests, and did not suffice to render it an operator under the Mine Act.
B. Resp. Br. at 38-46. Contestants also contend that the quarterly inspections conducted by
employees of Kentucky Berwind, and its involvement in the Corvette incident, are not indicative
of the type of control or authority over mining operations sufficient to render Kentucky Berwind
an operator of the mine. Id. at 42-45.
We affirm the judge' s ·c onclusion that Kentucky Berwind was not an operator of the mine.
The Secretary's argument that Kentucky Berwind is an operator appears to be based primarily on
the authority it possessed as an owner of mineral rights at the Elmo No. 5 Mine, despite the
Secretary's contention (S. Br. at 33 n.13) that it has not relied on mere status as an owner to
establish operator status and that an entity must exercise or at least possess the authority to
exercise substantial control over the operation of the mine. In our view, the rights retained by
Kentucky Berwind pursuant to the terms of its lease with Kyber, including the right to impose lost
coal penalties, do not indicate that Kentucky Berwind reserved to itself the authority to have
substantial involvement in the operation of the mine. The record indicates that Kentucky
Berwind 's authority to impose lost coal penalties was rarely, if ever, exercised at the Elmo No. 5
iVi ine, and was not used by Kentucky Berwind as a means of exerting control over the operation
:;:~the mine. Rather, these provisions were merely used to protect the interests of Kentucky
: e;-wind, as owner of the mine, by insuring that the coal was mined to the maximum extent
:)ossible.
To support her argument that Kentucky Berwind is an operator because of the authority it
·::ossessed as an owner and lessor, the Secretary cites (S. Br. at 33) language from the Third
Circuit ' s Eliiot decision that "where the lessor and lessee are closely affiliated companies,
. . . existence of c. power to control the lessee should be presumed." 17 F.3d at 620. This
statement, in dicta, was made in the context of determining whether the lessor in that case was a
"responsible operator" liable for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901()4.5 ("BLBA"), and its implementing regulations, which were specifically directed towards
:Jreventing operators from manipulating their corporate form to avoid liability for benefits to
employees employed on or after June 30, 1973. As the Elliot court noted, the legislative history
the 1977 amendments to the BLBA indicates that "Congress intended to prevent businesses
from escaping liability for black lung benefits by a change of corporate form or identity that had
no substantial economic effect on the power to control the exploitation of the mineral resources."
17 F.3d at 631. Thus, the quoted language from Elliot was based upon Congress' express intent

or

1302

to impose continuing liability on a former mine operator for BLBA benefits to that operator's
former employees even though it may have attempted to evade those responsibilities by a
corporate restructuring in which it substituted an affiliated company as its lessee to continue the
actual operation of the mine, while continuing to profit from mine operations. This reasoning is
not applicable to the pertinent lease arrangement between Kentucky Berwind and Kyber, who, as
shown above, dealt with each other at "arm's length." Unlike the lessor involved in Elliot, neither
Kentucky Berwind nor any of its affiliates ever previously operated the mine or employed
AA&W's employees, and there was no allegation that any of those entities sought, through the
lease agreement, to avoid any legal obligations.

In any event, the quoted language from Elliot speaks only of a "presumption" of a lessor's
power to control the lessee. In determining whether Kentucky Berwind is an operator, the key
issue is the extent of its involvement in the operation of the mine, and not the activities of Kyber,
its affiliated lessee. Moreover; any presumption of control over the lessee could be overcome by
evidence, of the type elicited in this case, that the lessor did not possess actual authority to control
the lessee or the operations of the mine.

In addition, it does not appear that Kentucky Berwind engaged in the type of activities
that are indicative of substantial involvement in the operation, supervision or control of the mine.
Rather, the record supports the judge's findings that the inspections of the mine by Kentucky
Berwind personnel, the only regular contact by Kentucky Berwind with the mine, were essentially
pro forma operations designed to insure that the coal was being recovered properly and to check
seam heights and tonnages and confirm royalties; that Kentucky Berwind never disagreed with
Kyber and AA& W about the propriety of discontinuing mining in certain areas; and that Kentucky
Berwind had little or no input into the formulation of projections or other decisions regarding
mining operations. 18 FMSHRC at 235-36. As the judge noted, there was no showing that the
report forms prepared by Kentucky Berwind employees who visited the mine were linked to any
substantial participation in the operation of the mine. Id. at 235. In addition, based upon the lack
of supporting evidence of financial control and the stipulation of the parties that Kentucky
Berwind had no financial dealings with AA&W, the judge's conclusion that Kentucky Berwind
did not exert sufficient financial control over operations at the mine to qualify as an operator is
supported by substantial evidence.
Nor do the actions of Kentucky Berwind in response to a roof fall at the Elmo No. 5 Mine
that resulted from blasting at the neighboring Corvette mine (see discussion supra, at 13 & n.11)
warrant a finding that it was an operator. While the undisputed evidence establishes that
Kentucky Berwind intervened to insure that operations at the Corvette mine did not interfere with
the operation of the Elmo No. 5 Mine, there is no evidence that it directed AA&W to make any
changes with respect to its operation of the mine. As the judge concluded, "it was only natural
that Kentucky Berwind, as the owner of the coal reserves mined by both AA&W and Corvette,
would have an interest in trying to assist both operators so that they did not interfere with one
1303

anothers' operations." 17 FMSHRC at 715. While we rely on the involvement ofKyber officials
in the Corvette incident as additional evidence ofKyber's operator status (supra, at 12-13), we do
not believe that the involvement of Kentucky Berwind in these limited circumstances, in itself,
required the judge to conclude that Kentucky Berwind was an operator, in absence of other
evidence of its substantial involvement in the operations of the mine.
4.

Berwind

The Secretary argues that Berwind qualifies as an operator because it had the power to
control and supervise operations at the mine as the result of the control it exercised over its three
subsidiary corporations - Kentucky Berwind, Kyber, and Jesse Branch. S. Br. at 45-49. Amicus
UMW A argues that Berwind qualifies as an operator on the basis of the economic control it
exercised over operations at the mine. UMW A at 6-7. Arnicus USWA asserts that the judge
erred in concluding that Bel'Wind was not an operator of the mine because of the business and
economic control it exercised over operations at the mine, through Kyber. USW A Br. at 3-4.
Contestants argue the judge correctly held that Berwind was not an operator of the Elmo
No. 5 Mine based on his finding that Berwind had virtually nothing to do with the day-to-day
operations of the mine. B. Resp. Br. at 46. They argue that the Secretary erroneously attempts
to rely on the control Berwind exerted over its subsidiary corporations as indicative of operator
status, since she has failed to establish any of the necessary prerequisites for piercing the
corporate veil and disregarding Berwind's status as a separate corporation. Id. at 46-49.
We affirm the judge's determination that Berwind was not an operator of the mine. We
conclude that substantial evidence supports the j udge's finding that Berwind "had virtually
nothing to do with the ... operations of the mine." 18 FMSHRC at 234. The Secretary does not
dispute this fi nding, but argues that Berwind should be found to be an operator because of the
control it exercised over its three wholly-owned subsidiaries - Jesse Branch, Kentucky Berwind
and Kyber - which, in tum, controlled various aspects of operations at the mine. This same
argument could be applied to virtually any parent corporation, however, and, in our view,
amounts to an attempt to "bootstrap" Berwind's operator status based on the finding that Kyber
is an operator.
The stipu lated evidence does indicate that Berwind allocated funds to its subsidiaries to
meet their budgets, retained the authority to approve expenditures by the subsidiaries in excess of
their budgets, and approved the expenditure of funds by Kyber to do face-up work prior to the
opening of the Elmo No. 5 Mine. Id. at 212, 234. In our view, however, the judge correctly
concluded that Berwind's financial involvement with the mine was " too far removed" from the
actual operation of the mine to warrant a finding that Berwind is an operator. Id. at 234.
Likewise, the overlap between the officers of Berwind and those of its subsidiaries, and the
authority that Berwind had to approve the election and appointment of top level officers and
1304

management officials of its subsidiaries, does not in itself constitute substantial involvement in the
operation of the mine. We agree with the judge that the record contains "no suggestion that those
who acted for Berwind actually were controlling and supervising the Elmo No. 5 Mine, or were
attempting to do so." Id. Nor is there any evidence that Berwind used the common officers it
shared with its subsidiaries, or its authority to name officials of the subsidiaries, as a means by
which to exert control over the operations of the mine.

In our view, the judge also correctly concluded that the Secretary failed to establish that
any of the subsidiaries did not operate independently of Berwind, or the existence of any other
grounds for disregarding the corporate distinctions between Berwind and its subsidiaries. Id.; 17
FMSHRC at 715. In the absence of any such evidence, or any showing that Berwind had
substantial involvement in the operation of the mine, we find no basis for disturbing the judge's
finding that Berwind was not an operator.

C.

The Secretary's Unitary Operator Theory 18

Having determined that not all of the individual entities named by the Secretary are
operators within the meaning of section 3(d) of the Mine Act, we address the Secretary's
alternative argument that Berwind and its three subsidiary corporations constituted a "unitary
operator" under the Mine Act because together they allegedly controlled all aspects of mining at
the Elmo No. 5 Mine. 19
1.

The Secretarv's Interpretation of the Mine Act

Section 3(d) of the Mine Act defines "operator" as including "any .. . person who
operates, controls, or supervises a coal or other mine." 30 U.S.C. § 802(d). Section 3(f) defines
a "person" as "any individual, partnership, association, corporation, firm, subsidiary of a
corporation, or other organization[.]" 30 U.S.C. § 802(£). The Secretary contends that the judge
erred by not considering the operator status of Berwind and its three subsidiary corporations
under a unitary operator theory because that theory is consistent with the language and underlying
purposes of the Mine Act. S. Br. at 12-22. In particular, the Secretary relies on the definition of

18

Chairman Jordan and Commissioners Marks and Beatty join in Parts II. C. l, 11.C.2, and
II.C.3.b of this opinion.
19

The Secretary's "unitary operator" interpretation focuses only on whether two or more
entities should be treated as one, and thus might be more appropriately described as the "single
entity" theory. Whether a particular entity, unitary or otherwise, qualifies as an operator under
section 3(d) of the Mine Act is a separate question that is resolved by applying the control test
discussed in Part II.A.
1305

''person" in section 3(f) of the Act, which appears in the definition of the term "operator" in
section 3(d), and expressly includes the terms "association" and "other organization." She asserts
that these two provisions, taken together, indicate that Congress envisioned holding multiple
entities liable as a unitary operator if together they constitute an "association" or "other
organization" that "operates, controls, or supervises a coal or other mine." Id. at 12-13. The
Secretary also contends that the grounds offered by the judge for rejecting the unitary operator
interpretation in this case are irrelevant and inconsistent with the purposes of the Mine Act. Id. at
22-26.
Contestants and amici NMA and NCCL argue that the Secretary's assertion of a unitary
operator theory is inconsistent with, and unprecedented under, the Mine Act, and would
undermine legitimate business structures and commercial relationships that have developed with
respect to the mining of coal. B. Resp. Br. at 52-59; NMAINCCL Br. at 2-3, 17.
The Secretary's unitary operator theory is based upon her construction of the definition of
the statutory terms "operator" and "person" in sections 3(d) and 3(f) of the Mine Act,
respectively. The first inquiry in statutory constmction is "whether Congress has directly spoken
to the precise question in issue." Chevron US.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If
a statute is clear and unambiguous, effect must be given to its language. Chevron, 467 U.S. at
842-43. Accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990).20 If,
however, the statute is ambiguous or silent on a point in question, a second inquiry, commonly
referred to as a "Chevron If' analysis, is required to determine whether an agency's interpretation
of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC
at 584 n.2; Keystone, 16 FMSHRC at 13. Deference is accorded to "an agency's interpretation of
the statute it is charged with administering when that interpretation is reasonable." Energy West
1Vfining Co. v. FlvfSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844).
The agency's interpretation of the statute is entitled to affirmance as long as that interpretation is
one of the permissible interpretations the agency could have selected. Chevron, 467 U.S. at 843;
Joy Technologies, Inc. v. Secretary ofLabor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied,
520 U.S . 1209 (1997). See also Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th
C ir. 1995).
The Mine Act does not define the terms "association" and "organization." The use of the
terms "association" and "organization" in the statutory definition of "person," and thus, indirectly,
in the definition of "operator," therefore, sheds little light on whether Congress intended that
multiple related entities could be held liable as a unitary operator. In the absence of an express
20

The examination to determine whether there is such a clear Congressional intent is
commonly referred to as a "Chevron f' analysis. Thunder Basin, 18 FMSHRC at 584; Keystone
Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994).
1306

definition or an indication that the drafters intended a technical usage, the Commission has relied
on the ordinary meaning of the word to be construed. Peabody Coal Co., 18 FMSHRC 686, 690
(May 1996), aff'd mem., 111 F.3d 963 (D.C. Cir. 1997). See also Walker Stone Co. v. Secretary
of Labor, 156 F.3d 1976, 1081 (10th Cir. 1998) ("the Commission appropriately considered the
plain meaning of [the] words as indicated by their dictionary definitions."). The Secretary relies
on the definitions of these terms in the American Heritage Dictionary of the English Language
80, 926 (New College ed. 1976). S. Br. at 13. That source defines the term "association" as "an
organized body of people who have some interest, activity, or purpose in common." Id. at 80.
An "organization" is defined as "[a] number of persons or groups having specific responsibilities
and united for some purpose or work." Id. at 926.
These definitions of the terms "association" and "organization" all use the terms "persons"
or "people." While the term "people" is more commonly understood to refer to human beings,
i.e., natural persons, the term "person" is usually defined broadly to also include other types of
legal entities. For instance, Webster 's Third New International Dictionary defines "person" as "a
human being, a body of persons, or a corporation, partnership, or other legal entity that is
recognized by law as the subject of rights and duties." Webster's Third New Int 'l Dictionary
(Unabridged) 1686 (1986). The term is also defined, for legal purposes, as "a human being
(natural person) or a group of human beings, a corporation, a partnership, an estate, or other
legal entity (artificial person or juristic person) recognized by law as having rights and duties."
Random House Dictionary ofthe English Language (Unabridged) 1445 (2d. ed. 1987) (emphasis
in original). See also Black's Law Dictionary 1162 (7th ed. 1999).
These definitions indicate that the terms "association" and "organization," as well as
"person" and "people," arc open to various interpretations that may or may not include Berwind
and its three subsidiaries. Those companies would appear to qualify as "persons" if that term is
interpreted broadly to include entities that are not human beings. It could be argued, however,
that they do not fall within the commonly understood meaning of the term "people," as used in
certain definitions of the terms "association" and "organization." Moreover, resolution of the
issue whether Berwind and its three subsidiaries otherwise qualify as an "association" or
"organization" depends largeiy on which definition of those terms is applied and how it is
interpreted. For instance, utilizing the American Heritage and Webster 's Third definitions of the
term "association," it could be argued that the companies have some "interest, activity, or purpose
in common" or "common interest" based on their financial ties and their common involvement in
the mining industry. On the other hand, if the quoted language is interpreted more narrowly, it
could be argued that they do not satisfy this definition of the term "association" since they are all
separate corporate ent.ities that operate within different sectors of the mining industry. The same
holds true in analyzing whether the four companies can be said to be "united for some purpose or
work" or "organized for some end or work" within the meaning of the American Heritage and
Random House definitions of the term "organization." Thus, Berwind and its three subsidiaries
could be considered "united" for the purpose of conducting business at various levels of the
1307

mining industry and thereby generating profits for Berwind, the parent corporation. Conversely,
applying a more restrictive interpretation to this language, it is possible to conclude that these are
four independent corporate entities that are not "united" in any formal legal sense or "organized"
to achieve the same end. The other definitions of the terms "association" and "organization" are
likewise open to different, conflicting interpretations.
Because the meaning of the terms "association" and "organization" as used in the
statutory definitions of the term "person" and "operator" is open to alternative interpretations, as
reflected in thf: dictionary definitions, we conclude that they are ambiguous. See National R.R.
Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418-19 (1992); 2A Norman J. Singer,
Sutherland Statutory Construction § 45.02, at 6 (5th ed. 1992) ("Ambiguity exists when a statute
is capable of being understood by reasonably well-informed persons in two or more different
senses."); Ehlert v. United States, 402 U.S . 99, 105 (1971). In Walker Stone, the Tenth Circuit
found a regulatory safety standard to be inherently ambiguous where neither of two conflicting
interpretations adopted by the Commission and its administrative law judge was "either clearly
required or clearly prohibited by the language of the ... standard." 156 F.3d at 1081. Similarly,
in this case, the pertinent statutory terms must be regarded as ambiguous because the dictionary
definitions do not conclusively establish that the Secretary's interpretation of these statutory terms
is either required or prohibited.
Moreover, the legislative history of the Coal Act of 1969, in which these definitional
sections were originally adopted, is silent regarding Congress' intention in including the terms
"association" and "organization." These terms were subsequently carried over into the Mine Act
in 1977, without any further explanation from Congress as to their intended meaning.
Accordingly, we conclude that the statutory language on the question whether more than
one entity may constitute a singie operator is far from clear, and that Congress has not "directly
spoken to the precise question at issue." Chevron, 467 U.S. at 842. We therefore examine
whether the Secretary's unitary operator interpretation is a permissible construction of the Mine
Act that is entitled to deference.
The Secretary elicits support for her unitary operator interpretation of the Mine Act by
relying on cases that have held multiple entities liable as a "single employer" or "single enterprise"
under other statutes, including the National Labor Relations Act "("NLRA"), 29 U.S.C. § 141 et
seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 G.S.C.
§ 2000e et seq. S. Br. at 13-16, 24. Although these two statutes are more directly concerned
with the employment relationship itself, and forms of discrimination that can occur thereunder, the

1308

key statutory provisions defining the tcnns "employer" and "person" are very similar to those
contained in the Mine Act. 21
In a number of cases, we have looked for guidance to case law interpreting similar
provisions of the NLRA, as well as Title VII and other employment statutes, in resolving
questions concerning the proper construction of provisions of the Mine Act. See Swift v.
Consolidation Coal Co., 16 FMSHRC 201, 206 (Feb. 1994) (standard for showing facial
discrimination); Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2542-45 (Dec. 1990) (legality
of operator's policy of paying employees who testify as witnesses on its behalf, but not paying
employee for time spent testifying as another party's witness); Local Union 2274, UMWA v.
Clinchfield Coal Co., 10 FMSHRC 1493, 1501 n.6, 1504-05 (Nov. 1988) (appropriate rate of
interest on backpay awards), aff'd sub nom. Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773
(D.C. Cir. 1990); Metric Constructors, Inc., 6 FMSHRC 226, 231-33 (Feb. 1984) (mitigation
defense to backpay award), aff'd, 766 F.2d 469 (11th Cir. 1985). In Delisio, the Commission
noted that it "has recognized in several contexts that ... cases decided under the NLRA- upon
which much of the Mine Act's antiretaliation provisions are modeled - provide guidance on
resolution of discrimination issues under the Mine Act." 12 FMSHRC at 2542-43 (citing Metric
Constructors, 6 FMSHRC at 231 ). Applying a similar rationale, we believe that cases applying
the "single employer" doctrine under the NLRA and Title VII may be properly considered in
21

Section 2 of the NLRA contains the following definitional provisions:
(1) The tenn "person" includes one or more individuals,
labor organizations, partnerships, associations, [or] corporations

(2) The term "employer" includes any person acting as an
agent of an employer, directly or indirectly ....
29 U.S.C. § 152. Section 701 of Title VII provides:
(a) The tenn "person" includes one or more individuals,
governments, . . . labor unions, partnerships, associations,
corporations, legal representatives, mutual companies, joint-stock
companies, trusts, [or] unincorporated organizations ....
· (b) The tenn "employer" means a person engaged in any
industry affecting commerce who has fifteen or more employees
.. , and any agent of such a person ....
42 U.S.C. § 2000e.
1309

determining whether the unitary operator theory now advanced by the Secretary constitutes a
reasonable interpretation of comparable provisions of the Mine Act. 22
A "single employer" doctrine has been developed to determine when separate entities
should be treated as a single employer by the National Labor Relations Board ("NLRB") for
purposes of enforcing the provisions of the NLRA. This doctrine, which has been approved by
the Supreme Court, provides:
[I]n determining the relevant employer, the [NLRB] considers
several nominally separate business entities to be a single employer
where they comprise an integrated enterprise. The controlling
criteria, set out and elaborated in [NLRB] decisions, are
interrelation of operations, common management, centralized
control of labor relations and common ownership.
Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc.,
380 U.S. 255, 256 (1965) (per curiam) (citations omitted). See also Lihli Fashions Corp. v.
NLRB, 80 F.3d 743, 747 (2d Cir. 1996); Esmark, Inc. v. NLRB, 887 F.2d 739, 753 (7th Cir.
1989); NLRB v. Al Bryant, Inc., 711 F.2d 543, 550-53 (3d Cir. 1983), cert. denied, 464 U.S.
1039 (1984); Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 24-26 (1st Cir.) ("the fundamental
inquiry is whether there exists overall control of critical matters at the policy level"), cert. denied,
464 U.S. 892 (1983). To demonstrate single employer status, not every factor need be present,
and no particular factor is controlling. Lihli Fashions Corp., 80 F.3d at 747. "[I]nstead, the
[NLRB] must weigh the totality of the circumstances and determine whether the parent exercised
such pervasive control of the subsidiary at the policymaking level that the purposes of the labor
laws are served by treating the two entities as one." Esmark, 887 F.2d at 753. See also Al
Bryant, 711 F.2d at 551 ("single employer status depends on all the circumstances of the case and
is characterized by absence of an 'arm's length relationship found among unintegrated
companies"') (quoting Local 627, Int'l Union of Operating Eng'rs v. NLRB, 518 F.2d 1040,
1045-46 (D.C. Cir. 1975), aff'd on this issue per curiam sub nom. South Prairie Constr. Co. v.
Local 627, lnt'l Union ofOperati11g Eng'rs, 425 U.S. 800 (1976)). Proof of subterfuge, or an

22

We reject Contestants' suggestion that the single employer doctrine developed under
the NLRA and Title VII is inapplicable in a Mine Act context because none of the cases relied
upon by the Secretary applied that doctrine to hold liable, as a single employer, a group of
companies that did not employ any of the employees in question. B. Resp. Br. at 56. This can be
readily explained by the fact that the NLRA and Title VII are statutes concerned with regulation
of employment relations, as opposed to the Mine Act, which is primarily concerned with
protection of the health and safety of miners. As discussed infra, at 33, our test for determining a
"unitary operator" under the Mine Act takes account of this difference in the orientation of the
respective statutory schemes.
1310

intent to avoid legal obligations, is not necessary to establish single employer status. Al Bryant,
711 F.2d at 552.23
The four-part single employer test developed under the NLRA has also been applied to
determine whether two or more companies should be treated as one entity for purposes of
assessing liability for Title VII violations. See, e.g., Cook v. Arrowsmith Shelburne, Inc., 69 F .3d
1235, 1240 (2d Cir. 1995); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933
(11th Cir. 1987); Armbruster v. Quinn, 711F.2d1332, 1337 (6th Cir. 1983). But see Papa v.
Katy Indus., Inc., 166 F.3d 937, 940-42 (7th Cir. 1999) (questioning continued applicability of
four-part test in Title VII context), cert. denied, 68 U.S.L.W. 3137 (U.S. Nov. 29, 1999) (No.
99-284). "The showing required to warrant a finding of single employer status for Title VII
purposes has been described as 'highly integrated with respect to ownership and operations."'
McKenzie, 834 F.2d at 933 (quoting Fike v. Gold Kist, Inc., 514 F. Supp. 722, 726 (N.D. Ala.),
ajf'd mem., 664 F.2d 295 (1lth·Cir.1981)).
The single employer doctrine has been applied to hold a parent corporation liable for the
statutory obligations of its subsidiary24 and to hold a sister corporation liable for the obligations of
an affiliate. 25 The doctrine represents an exception to the general principle of "[t]he insulation of
a stockholder from the debts and obligations of his corporation .... " NLRB v. Deena Artware,
Inc., 361 U.S. 398, 402-03 (1960). See also Watson v. Gulf& Western Indus., 650 F.2d 990,

23

We find it noteworthy that at least one commentator has concluded that the single
employer test developed under the NLRA may be appropriately applied to employers in the coal
mining industry, for purposes ofregulating labor relations. See Forrest H. Roles, Unique Nature
ofthe Coal Mining Industry - Are the Labor Law Rules Determining When Two Employers
Should be Treated as One Different for the Coal Industry?, 97 W. Va. L. Rev. 985, 993-96
(1995).
24

See, e.g., Package Serv. Co. v. NLRB, 113 F.3d 845, 847-48 (8th Cir. 1997) (corporate
parent liable for unfair labor practices committed by subsidiary); NLRB v. International
Measu rement & Control Co., 978 F.2d 334, 340 (7th Cir. 1992) (parent corporation liable for
obligations to empioyees under collective bargaining agreement between subsidiary and union);
Royal Typewriter Co. v. NLRB, 533 F.2d 1030, 1042-43 (8th Cir. 1976) (derivative unfair labor
practice liability imposed on corporate parent).
25

See, e.g., Lihli Fashions Corp., 80 F.3d at 748 (affiliate is responsible for obligations of
related entity under collective bargaining agreement); NLRB v. Rockwood Energy & Mineral
Corp., 942 F.2d 169, 174 (3d Cir. 1991) (mine operator, corporate parent, and another related
corporation found to be a single employer were bound by terms of collective bargaining
agreement executed by operator); Al Bryant, 711 F.2d at 553 (affiliated companies found to be
single employer are bound to each others' collective bargaining agreements).

1311

993 (9th Cir. 1981) (absent special circumstances, parent is not responsible for subsidiary's Title
VII violation). As the Supreme Court also noted in Deena Artware, 36 1 U.S. at 403-04,
however, there may be variety of situations in which it is appropriate to hold a corporation liable
for the sins of its subsidiary or affiliate.
We believe that this well-developed body of case law interpreting similar statutory
language to create a single employer doctrine under the NLRA and Title VII provides support for
the Secretary's interpretation of the Mine Act as permitting the application of a similar unitary
operator theory. The terms "association" and "organization" in section 3(f) of the Mine Act are
not so inherently restrictive as to preclude the interpretation applied to them by the Secretary, and
there is nothing in the legislative history that detracts from this construction of the statutory
language. Indeed, the legislative history of the Coal Act indicates that Congress intended that
"[t]he definition of an 'operator' ... be as broad as possible,"26 consistent with the established
principle that provisions of the Mine Act pertaining to statutory coverage are entitled to a very
expansive interpretation. See United Energy Servs., Inc. v. MSHA, 35 F.3d 971, 975 (4th Cir.
1994); Pennsylvania Elec. Co. v. FMSHRC, 969 F.2d 1501, 1503 (3d Cir. 1992); Donovan v.
Carolina Stalite Co., 734 F.2d 1547, 1551-55 (D.C. Cir. 1984) (all interpreting the term "mine"
in section 3(h)(l ), 30 U.S.C. § 802(h)( l )). This is comparable to the liberal construction that
courts have applied in interpreting the NLRA, Title VII, and the provisions relating to the scope
of their coverage. See, e.g., Armbruster, 71 1 F.2d at 1336 ("To effectuate its purpose of
eradicating the evils of employment discrimination, Title VII should be given a liberal
construction. The impact of this construction is the broad interpretation given to the employer
and employee provisions.") (citations omitted). Viewed in this context, we consider the
Secretary's unitary operator theory to be a gap-filling measure designed to flesh out the definition
of an "operator" under the Mine Act. It is entitled to deference because it is consistent with the
purposes and policies of the Act. 27
The support that these NLRA and Title VII cases provide for the Secretary's
interpretation of the Mine Act is enhanced by their similar definitions of the term "person," which
is incorporated in other key definitions ("operator" in the Mine Act, "employer" in the NLRA and

26

S. Rep. No. 91 -411, at 44 (1969), reprinted in 1 Coal Act Legis. Hist. at 170.

27

We are not persuaded by the Contestants' argument that application of the unitary
operator theory to hold Berwind and its three subsidiaries liable as a single operator would lead to
each of those enti ti.e s being held separately responsible for complying with the requirements
applicable to operators, such as taking dust samples, conducting a training program, and
preparing a ventilation plan. B. Resp. Br. at 20-23. The Secretary's interpretation of the Act
would not obligate each of the entities that constitute a single operator to comply with these
requirements, but rather would only require compliance by one of the entities. See S. Reply Br. at
4-6.
1312

Title VII). The following observation by the Sixth Circuit in Armbruster, in approving the
application of the single employer test developed under the NLRA in Title VII cases, is also
applicable in a Mine Act context:
Since it is clear that the framers of Title VII used the NLRA as a
model, we find the similarity in language of the Acts indicative of a
willingness to allow the broad construction of the NLRA to provide
guidance in the determination of whether, under Title VII, two
companies shall be deemed to have substantial identity and treated
as a single employer.
711 F.2d at 1336 (citations omitted).
We find the reasons offered by the judge for rejecting the Secretary's unitary operator
theory inconsistent with a Chevron II analysis. The judge stated that "[p]arts of the industry have
functioned in this way for years and ... the Secretary has never had a policy of citing all
corporate entities involved in the operation of a mine for the production operator's violations."
18 FMSHRC at 233 (emphasis in 01iginal). The judge further found that the absence of such a
policy "raises questions about the validity and wisdom of a 'unitary' approach to enforcement."
Id. As the judge himself recognized, however, the mere fact that the Secretary has not previously
cited operators based on this theory does not estop her from relying on the unitary operator
theory here. See Sunny Ridge Mining Co., 19 FMSHRC 254, 267-68 (Feb. 1997) (equitable
estoppel does not generally operate against the Secretary) (citing King Knob Coal Co., 3
FMSHRC 1417, 1421-22 (June 1981)). The issue before the Commission, in evaluating an
agency's interpretation of the statute it is charged with administering, is whether that
interpretation is a permissible reading of the statute. The D.C. Circuit has observed: "As a court
ofreview ... we are not positioned to choose from plausible readings the interpretation we think
best. Rather, our task is to inquire whether the [agency's] reading is sufficiently plausible and
reasonable to stand as the governing law, absent alteration by Congress." American Fed'n of
Gov't Employees v. FLRA, 778 F.2d 850, 856 (D.C. Cir. 1985) (alteration in original).
The judge also reasoned that a "unitary entity" theory of operator status could "fly in the
face of the entities' corporate rights to be treated separately and ... be used to extend jurisdiction
without a logical limit." 18 FMSHRC at 233. But while we must not ignore the corporate forms
adopted by the entities before us, neither are we required to exalt these forms over the substance
of interrelated and integrated operations. As the Commission has previously observed, in
resolving the issue of whether a facility was a "mine" within the meaning of section 3(h) of the
Mine Act, 30 U.S.C. § 802(h): "the operations taking place at a single site must be viewed as a
collective whole. Otherwise, facilities could avoid Mine Act coverage simply by adopting
separate business identities along functional lines, with each performing only some part of what, in

1313

reality, is one operation." Mineral Coal Sales, Inc., 7 FMSHRC 615, 621 (May 1985).28 Courts
applying the single employer doctrine have likewise recognized that "the separation of parent and
subsidiary is not absolute.... There may be a variety of situations in which it is appropriate to
hold a parent corporation liable for the sins of its subsidiary." Esmark, 887 F.2d at 753; see also
Armbruster, 711 F.2d at 1337 (high degree of interrelatedness sufficient to support single
employer finding justifies "departure from the 'normal' separate existence between entities").
Despite Commissioner Verheggen's assertions to the contrary, the single employer test we
adopt today, which applies only to entities that have in fact ceased functioning as separate
operations, is not a departure from the "common law of corporations" (slip op. at 85), but rather
is entirely consistent with well established principles of corporation law.29 See Package Serv. Co.,
113 F.3d at 847 ("Corporate law recognizes situations in which it is appropriate to 'pierce the
veil' of separate affiliates"). For instance, it is well recognized that under the "alter ego" theory
of corporation law,30 a parent corporation may be held liable for the obligations of its subsidiary

28

The Commission found this approach "particularly appropriate" in Mineral Coal Sales
in view of evidence of "pervasive intermingling of personnel and functions among entities that
sporadically operated at the facility, with little or no apparent regard for business or contractual
formalities." Id.
29

Commissioner Verheggen's reliance (slip. op. at 82-83) on the Supreme Court's
decision in United States v. Bestfoods, 524 U.S. 51 (1998) to suggest that our adoption of a
unitary operator theory represents a departure from fundamental principles of corporate law is
misplaced. First that case addressed issues of liability under the Comprehensive Envirorunental
Response, Compensation, and Liability Act, 42 U. S.C. § 9601 et seq. ("CERCLA"), a far
different statutory scheme whose primary statutory goal is not the protection of the health and
safety of miners or other employees, but the cleanup of hazardous waste sites and the allocation
of related costs. Second, the language quoted by Commissioner Verheggen (slip op. at 83)
relates to the issue of whether a parent may be held liable as an operator under CERCLA for the
actions of its subsidiary, referred to as "indirect" or "derivative" liability by the Court in
Bestfoods, without piercing the corporate veil. By contrast, our unitary operator theory, and the
single operator doctrine developed under the NLRA and Title VII, addresses the separate
question of when it is appropriate, and consistent with settled principles of corporation law, to
disregard the separate corporate existence of two or more entities whose operations are so
interrelated that they function as a single entity.
30

A separate alter ego doctrine developed under the NLRA is distinguishable from both
the alter ego theory of corporation law and the single employer doctrine. It is generally applied
when a new legal entity replaces a predecessor company, and focuses on "the existence of a
disguised continuance or an attempt to avoid the obligations of a collective bargaining agreement
through a sham transaction or a technical change in operations." Carpenters Local Union 1846 v.
1314

where "there is such unity of interest and ownership that the individuality or separateness of the
two corporations has ceased." 18 Am. Jur. 2d, Corporations § 56, at 861-62 (1985). Similarly,
"the so-called 'identity rule"' provides:
if there is such a unity of interest and ownership that the
independence of the corporation has in effect ceased or had never
begun, an adherence to the fiction of separate identity would serve
only to defeat justice and equity by permitting the economic entity
to escape liability arising out of an operation conducted by one
corporation for the benefit of the whole enterprise.

Id. at 862 (citations omitted); accord 1 William Meade Fletcher et al., Fletcher Cyclopedia ofthe
Law of Private Corporations § 43 , 1999 Cum. Supp. at 20 (rev. perm. ed. 1999). See also 1
Fletcher, Cyclopedia Corporations§ 43, at 719 ("Many cases disregard the corporate entity
where it is so organized and controlled, and its affairs are so conducted, that it is merely an
instrumentality, agency, conduit, or adjunct of another corporation.").31 There is no requirement

Pratt-Farnsworth, Inc., 690 F.2d 489, 508 (5th Cir. 1982), cert. denied, 464 U.S. 932 (1983).
See also Howard Johnson Co. v. Detroit Local Joint Exec. Bd., 417 U.S. 249, 259 n.5 (1974);
Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106 (1942); Lihli Fashions Corp., 80 F.3d at
748; Al Bryant, 711 F.2d at 553. As a result, "the alter ego test is notably different than the
'four-factor' single employer test." Lihli Fashions Corp., 80 F.3d at 748-49, and-cases cited. It
focuses on factors including substantial identity of management, business purpose, operation,
equipment, customers, supervision, and ownership between the old and new corporation. AL
Bryant, 711 F.2d at 553-54; Pratt-Farnsworth, 690 F.2d at 508. There is disagreement among
the courts of appeals as to whether an "intent to evade" statutory obligations is a necessary
element of an alter ego finding. See Stardyne, Inc. v. NLRB, 41F.3d141, 146-47 & n.4 (3d Cir.
1994) (collecting cases). See also Gary MacDonald, Labor Law's Alter Ego Doctrine: The Role
ofEmployer Motive in Corporate Transformations, 86 Mich. L. Rev. 1024, 1039-52 (1988)
(surveying positions taken by the courts of appeals).
31

The law of the state of Kentucky, the jurisdiction in which the Elmo No. 5 Mine is
located and the events at issue herein arose, likewise recognizes that:
The legal fiction of distinct corporate existence may also be
disregarded in a case where a corporation is so organized and
controlled, and its affairs are so conducted, as to make it merely an
instrumentality, conduit or adjunct of another corporation. It is not
enough, however, that shareholders in the corporation are identical.
Nor is it enough that one corporation owns shares in the other and
that they have interrelated dealings. In order to warrant treating
1315

for a showing of fraud in determining whether two separate corporations may be treated as a
single entity under traditional corporation law alter ego analysis. l Fletcher, Cyclopedia
Corporations§ 43.60, at 737. See also authorities cited supra.
In sum, we conclude that the Secretary's interpretation of the Mine Act as permitting
multiple enti~ies to be considered an operator is a reasonable reading of the statute and therefore
entitled to deference.

2.

The Test for Determining Unitary Operator Status

Having upheld as reasonable the Secretary's interpretation of the Mine Act as permitting
the designation of two or more related entities as a single operator, we must also define the
elements of an appropriate test to determine when related entities may be found to constitute a
single operator. The Secretary appears to propose an approach based on the single employer
doctrine developed under the NLRA and Title VII and the common enterprise standard developed
under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. See S. Br. at 15-16. We
believe that the most appropriate standard for determining whether two or more related entities
constitute a unitary operator under the Mine Act is that applied in determining whether two or
more entities constitute a single employer under the similar statutory language of the NLRA and
Title VII, 32 with one modification.
As indicated above, the factors evaluated to determine whether entities are considered a
single employer for purposes of the NLRA and Title VII are: (1) interrelation of operations,
(2) common management, (3) centralized control oflabor relations, and (4) common ownership.

them as one, it must further appear that they are the business
·
conduits and the alter ego of one another.
Louisville Gas & Efec. Co. v. Moore, 284 S. W. 1082, 1083-84 (Ky. 1926) (quoting 1 Fletcher,
Cyclopedia Corporations§ 45, at 63). See also United States v. WRWCorp., 778 F.Supp. 919,
924 (E.D. Ky. 1991) (discussing elements of alter ego theory under Kentucky law, which include
"such unity of interest and ownership that the separate personalities of the corporation[ s] ... no
longer exist"), aff'd, 986 F.2d 138 (6th Cir. 1993); Hermitage Land & Timber Co. v. Scott's
Ex 'rs, 93 S.W.2d 1, 4 (Ky. 1936) ("we have not hesitated to look beyond the form or shadow
when the corporation is the mere dummy or alter ego or conduit of individuals or of another
corporation").
32

We find unconvincing the Secretary's argument for application of the "common
enterprise" standard developed under the FLSA to determine whether related entities constitute a
unitary operator under the Mine Act, given that the term "enterprise" in that statute has no
analogue in the Mine Act. See FLSA § 3(r), 29 U.S.C. § 203(r).
1316

In our view, this well-established test, which has been universally upheld and approved by the
federal courts, should be used as a model for determining whether two or more entities should be
considered a single operator under the Mine Act. We adopt one modification to this test,
however, based on the Mine Act's primary concern with the protection of health and safety, rather
than labor relations. 33 Based on this focus of the Mine Act, we conclude that centralized control
over mine health and safety, rather than "centralized control oflabor relations," should be the
third element of the Mine Act unitary operator test.
Accordingly, we will consider the following factors in determining whether entities will be
treated as a unitary operator for purposes of the Mine Act: (1) interrelation of operations,
(2) common management, (3) centralized control over mine health and safety, and
(4) common ownership. To demonstrate unitary operator status, not every factor need be
present, and no particular factor is controlling. Instead, we will weigh the totality of the
circumstances to determine whether one corporate entity exercised such pervasive control over
the other that the two entities should be treated as one. See Lihli Fashions, 80 F.3d at 747
(applying single employer test developed under NLRA); Esmark, 887 F.2d at 753 (same); Al
Bryant, 711 F.2d at 551 (single employer status depends on all the circumstances of the case).
We find no merit in Commissioner Riley's suggestion (slip op. at 65-66) that it is
somehow inappropriate for a Commission majority to fashion its own unitary operator test,
derived largely from principles set forth by the Secretary in her briefs. See S. Br. at 15-16.
Having concluded, through application of Chevron II analysis, that the Secretary's interpretation
of the Mine Act to support a unitary operator theory of liability was reasonable, and therefore
entitled to our deference, we are not bound to defer to any specific test proposed by the Secretary
.Lor determining unitary operator status. It is hardly open to question that this Commission has the
authority to interpret the Mine Act and adopt a specific test or standards for adjudicating charges
arising thereunder. See, e.g., Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (adopting fourpa1i test for determining whether a violation is "significant and substantial" under section 104(d)
of the Mine Act); Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981 ) (adopting standard for
determining liability under section 110(c)), alf'd on other grounds, 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983).
We are also not persuaded by our dissenting colleague's criticisms of the unitary operator
standard we adopt today. Despite Commissioner Riley's characterization of this test (slip op. at
68-69), it is apparent that the essence of the test we adopt has been universally accepted and
consistently applied by federal courts for over 20 years to determine whether one or more related

33

The Commission has long recognized that "the Mine Act is not an employment statute.
The Act's concerns are the health and the safety of the nation's miners." UMWA on behalfof
Rowe v. Peabody Coal Co., 7 FMSHRC 1357, 1364 (Sept. 1985), affd sub nom. Brock on behalf
of Williams v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987).
1317

entities should be treated as a single employer under the NLRA and Title VII. Nor do we find
any merit to Commissioner Riley's suggestion that our test is overly broad because it could render
liable as an operator a labor organization that represents miners employed at a mine, such as, in
this case, the UMWA. Slip op. at 68. Although, applying a liberal interpretation, a labor
organization that represents miners at a particular mine might be found, in some sense, to have a
certain de~ee of control over health and safety at that location, we seriously question whether
such an organization would meet any of the other three elements of the unitary operator test we
adopt today. 34

In dissenting from our application of a unitary operator test in this case to determine when
two or more related entities may be treated as a single operator for purposes of the Mine Act,
Commissioner Riley applies an explicitly result-oriented approach and accuses the Secretary of
doing the same. He argues that because the Commission has not concluded in this case that
Berwind and its three subsidiaries qualify as a single operator (see discussion infra, at 35), as the
Secretary had urged, it follows that the test we have adopted for resolving that issue is
unnecessary and unwarranted under the circumstances presented in this case. Slip op. at 66, 68.
We note, however, that in Emery Mining Corp. , 9 FMSHRC 1997 (Dec. 1987), the
Commission's seminal case on unwarrantable failure, we adopted the identical approach: we
announced a new test pursuant to our interpretation of the Mine Act, and in applying it found no
unwarrantable failure. Id. at 2004.
Commissioner Riley's argument blurs the distinction between three independent issues
with which we must come to grips, namely: whether a unitary operator theory is a reasonable
construction of the Mine Act; if so, identifying the elements of an appropriate test to determine
when related entities may be found to constitute a single operator under the Mine Act; and,
finally, applying such a test to the four entities involved in this proceeding. We fail to perceive
how our disagreement with the Secretary on the ultimate results of applying our unitary operator
test to these four related entities undermines the validity of our position on the first two issues.35

34

We disagree with Commissioner Riley' s interpretation (slip op. at 67) of certain
statements made by the Secretary's counsel at oral argument as an attempt to amend or refine her
proposed unitary operator test to add an element of "economic involvement" or "economic
control." See Oral Arg. Tr. 10-11. In response to a question from Commissioner Yerheggen,
counsel merely alluded to economic considerations to further explain why a labor organization,
such as the UMWA, could not qualify as an operator under the test proposed by the Secretary, as
suggested by Contestants.
35

We do not agree with Commissioner Riley's assertion that "nothing is gained" through
application of our unitary operator test since Kyber and Jesse Branch, the two entities that we find
to constitute a unitary operator under this test, "could ... have been cited under conventional
notions of operator status." Slip op. at 62 & n. l. The unitary operator theory must also be
1318

3.

Application of the Unitary Operator Test
a.

Berwind and.Its Three Subsidiaries

The Secretary argues that pursuant to her unitary operator theory, the record evidence
compels the conclusion that Berwind and its wholly-owned subsidiaries together constituted a
single business enterprise that controlled and operated the mine and therefore qualifies as a unitary
operator under the Mine Act. S. Br. at 26-29. Arnicus USWA contends that the judge erred in
declining to hold that Berwind and its three subsidiary corporations together constituted a unitary
operator of the mine. USWA Br. at 4. Contestants dispute the Secretary's argument that
Berwind and its three subsidiaries qualify as a unitary operator on that ground that it is not
supported by the evidence concerning the operations of the four entities. B. Resp. Br. at 52-59.
A majority of the Commission concludes that Berwind and its three subsidiaries do not
qualify as a unitary operator. Chairman Jordan and Commissioner Beatty conclude that Berwind
and its three subsidiaries- Kentucky Berwind, Kyber, and Jesse Branch - did not function as a
unitary or single operator of the Elmo No. 5 Mine under the criteria of the unitary operator test
adopted by the Commission today. Slip op. at 42-44, 50 n.2. Commissioners Riley and
Verheggen disagree with the unitary operator test adopted by the Commission majority and its
application in this case, and thus would not hold any of the entities liable pursuant to this theory.
Id. at 62-69, 82-86. Commissioner Marks concludes that Berwind and its three subsidiaries
satisfy the Commission's unitary operator test. Id. at 58-60. The separate opinions of
Commissioners are set forth in Part IV.
b.

Kyber and Jesse Branch36

The Secretary and the UMWA contend that the close relationship between Kyber and
Jesse Branch, including their shared facilities and common ownership and officers, establishes that
they essentially functioned as alter egos and therefore must be considered joint operators of the
mine. S. Br. at 51-56; UMW A Br. at 8-9 .37 Contestants argue that the Secretary's alter ego

applied to resolve the potential liability of Kentucky Berwind and Berwind, given our prior
conclusions that these two entities do not by themselves qualify as operators under the control
test we apply.
36

A majority of Commissioners, Chairman Jordan, and Commissioners Marks and Beatty,
conclude that Kyber and Jesse Branch qualify as a unitary operator.
37

The Secretary argues that because of their interrelationship Kyber and Jesse Branch
should be considered "alter egos." See S. Br. at 55-56. In using the term "alter ego," the
Secretary may have instead been referring to the separate theory of corporation law, which
1319

argument is not supported by substantial evidence and is based on inapplicable precedent. B.
Resp. Br. at 50-51.
In our view, the judge should have considered the compelling record evidence concerning
the high degree of interrelationship between Kyber and Jesse Branch, particularly with respect to
operations at the mine, and determined whether these two entities qualified as a unitary operator
under the theory espoused by the Secretary. 38 We reach the issue, and conclude that the record
compels the conclusion that Jesse Branch and Kyber meet our unitary operator test.
The record establishes that Kyber and Jesse Branch both lease land and coal reserves from
Kentucky Berwind and contract out the mining of the coal. 18 FMSHRC at 205-07. At times
relevant herein, Kyber and Jesse Branch shared a president (Jimmy Walker), a vice president of
operations (Steve Looney), a vice president of engineering (Randolph Scott), a controller (Bob
Bond), a treasurer (Bryan Ronck), and an assistant treasurer (B. McKenney).39 Id. at 207; JSF
23, 34. The two companies also used the same person to handle personnel matters (Shelia
Sullivan, a Jesse Branch employee), and employed the same individual to manage their coal
preparation plants (A.J. Thacker). JSF 43, 44. Each of these individuals performed duties on
behalf of both companies, as agreed to by Kyber and Jesse Branch, but were compensated only by
Jesse Branch for their services. 18 FMSHRC at 207; JSF 39.

focuses on whether two or more separate corporate entities are so interrelated that their corporate
separateness may be disregarded. See discussion supra, at 30-32. In any event, there can be no
question that the Secretary argues in essence that Kyber and Jesse Branch functioned as a unitary
operator of the Elmo No. 5 Mine, and therefore we apply our newly-adopted unitary operator test
in evaluating the legal relationship between these two entities. Contrary to the arguments of our
dissenting colleagues (slip op. at 66 n.5, 86), we also find that this theory of liability was raised by
the Secretary to the judge. See S. Mot. For Partial Sum. J. at 27-29 ("Although legally [Jesse
Branch] and [Kyber] are separate corporate entities, in practice the companies did not function as
sovereign, independent entities"); id. at 33-34 ("Since [Jesse Branch] undertook these activities
[at the Elmo mine] in conjunction with, and on behalf of[Kyber], ... [Jesse Branch] and [Kyber]
were acting as 'alter egos' at the Elmo mine and both must be considered an [sic] 'operators' of
the mine."). Indeed, in his initial order and notice of hearing, the judge acknowledged the
Secretary's arguments that Jesse Branch and Kyber were interrelated and served each other's
interests, but declined to accept or consider them. 17 FMSHRC at 710-11, 712.
38

The judge implicitly rejected the argument that Jesse Branch and Kyber should together
be considered a unitary operator of the Elmo No. 5 Mine, and analyzed the status of the two
companies only as a separate entities. See 18 FMSHRC at 236-43.
39

In the past, the two companies also shared the same treasurer and assistant treasurer.

Id. at 207.

1320

Kyber and Jesse Branch shared an office at a facility owned by Jesse Branch in Kimper,
Kentucky. 18 FMSHRC at 207; JSF 40; Tr. 495. On occasion, Kyber and Jesse Branch used
each others' equipment and machinery, without any written agreement between them governing
the use of such equipment and machinery. 18 FMSHRC at 208; JSF 48. Kyber's secretarial work
was also sometimes performed by Jesse Branch employees. 18 FMSHRC at 208. Occasionally,
coal produced at Kyber contract mines was processed at the Jesse Branch preparation plant. Id.
The parties stipulated that there was no written agreement between the two companies concerning
the manner in which such coal was processed or how Jesse Branch was compensated for the use
of its plant to process Kyber's coal. JSF 42. It is also undisputed that a Jesse Branch employee
monitored the amount of coal received by both companies from contract mines, and arranged for
transportation of the coal to the companies' preparation plants. 18 FMSHRC at 208; JSF 4 7. In
addition, Kyber used Jesse Branch exclusively to provide surveying services, including preparation
of mine maps and setting spads, at mines that it leased. l 8 FMSHRC at 228.
Turning to the four elements of our unitary operator test, there is little question that Kyber
and Jesse Branch meet the "common ownership" criterion, since they are both wholly owned
subsidiaries of Berwind. In addition, these two subsidiaries also clearly shared common
management because, at relevant times, their officers and board members were essentially
identical.
The record also establishes that, even though Kyber and Jesse Branch were nominally
separate corporations, they did not function as completely independent entities. Instead, their
operations were highly integrated and inteITelated, particularly in connection with the operation of
the Elm o No. 5 Mine. In addition to sharing the same officers, who were paid by Jesse Branch,
the companies used the same office facility and shared each others' machinery and equipment.
Moreover, as noted above, Kyber sometimes used employees of Jesse Branch to perform its own
secretarial services and used Jesse Branch's preparation plant to process coal from Kyber contract
mines, without any written agreement providing compensation to Jesse Branch for such services.
Id. at 207-08; JSF 42. Similar factors have been relied upon to demonstrate the functional
integration of related entities, and support a finding that they were a single employer under the
NLRA. See. e.g., Li/iii Fasliions Corp., 80 F.3d at 747 (common office facilities and equipment);
Al B1yant, 711 F.2d at 551-·52 (two entities shared office building, equipment, and personnel, and
had frequent interchange of employees). In Al B1ya11t, the court found that the lack of any written
agreements between the two entities governing the use of one company' s equipment and
administrative support by the other supp011ed a finding that the two entities were a single
employer. Id. at 551.
In addition to the high degree of interrelationship and functional integration between
Kyber and Jesse Branch, the record demonstrates that the two companies were viewed as
interchangeable in the eyes of officials at AA&W who worked with them on a regular basis. For

1321

instance, Norman Stump, AA&W's mine foreman, testified that he considered Kyber and Jesse
Branch to be "associated with each other'' and different parts of the same company, and was
therefore unable to specify which company set spads at the mine or determined the number of
entries that could be mined by AA&Win certain areas. Tr. 40, 70-72, 100-01. Jim Akers, the
vice president of AA&W, testified that he was unaware of any distinctions between Kyber and
Jesse Branch, since they were "run by the same people" and had the "same officers." Tr. 226,
278. Akers also testified that AA&W had seven contracts to operate mines for Kyber or Jesse
Branch, and that there was no significant difference in the way it operated a mine for either of the
two companies. Tr. 278-80. Perhaps because of this blurred distinction between the two
companies, Akers testified that it was Jesse Branch, not Kyber, that made final decisions
regarding mining projections and the direction of mining at the Elmo No. 5 Mine and set the
contract price to be paid to AA&W for the coal it mined. Tr. 244-45, 253, 276, 282-83. Akers
also testified that the mining contract between AA&W and Kyber with respect to the operation of
the mine was developed by "Jesse Branch/K.yber." Tr. 273.
Finally, the control exercised by Kyber and Jesse Branch over health and safety at the
Elmo No. 5 Mine was centralized within the two companies. The projections established by
Kyber, which determined the direction and nature of mining conducted at the mine, as well as any
agreed upon changes in the projections, were incorporated by Jesse Branch into mine maps
submitted to federal and state regulatory authorities. 17 FMSHRC at 694. Pursuant to its
agreement with Kyber, Jesse Branch prepared maps showing the ventilation system at the mine
that were submitted to MSHA every six months, and prepared diagrams used in the roof control
plan to illustrate the pillaring methods used during retreat mining, based upon information
provided by AA&W. Id. at 693. The record also indicates that all surveying and map preparation
work performed by Jesse Branch was supervised by Randolph Scott, the vice president of
engineering for both companies. Tr. 461-62. It is also undisputed that, even though the mine
maps were prepared and certified by employees of Jesse Branch, they stated that they were
"engineered by Kyber." JSF 155.
The foregoing evidence compels a finding that Jesse Branch and Kyber functioned as a
single entity, particularly with respect to their control over the operation of the Elmo No. 5 Mine.
Kyber and Jesse Branch shared common ownership and also had the same management and
officers. In addition, they were engaged in the same business, their operations were highly
interrelated, and they functioned as essentially one entity. Moreover, the two companies
exercised centralized input with respect to health and safety matters - including the preparation
of maps and diagrams used in required roof control and ventilation plans. Therefore, we conclude
that on this issue the record can only support one conclusion - that Kyber and Jesse Branch
constituted a single· entity under the unitary operator test we adopt. 40 Accordingly, remand of this

40

Given our prior conclusion that Kyber's supervision and control over the operation of
the mine were sufficient to render it an operator within the meaning of the Mine Act (supra, at
1322

issue to the judge is unnecessary. See Walker Stone, 156 F.3d at 1085 n.6 (remand not necessary
where Commission properly determined that record as a whole allowed only one conclusion);
Donovan on behalfofAnderson v. Stafford Constr. Co., 732 F.2d 954, 96 1 (D.C. Cir. 1984)
(finding remand would serve no purpose where all evidence bearing upon issue was contained in
record and would only support one conclusion); REB Enterprises, Inc., 20 FMSHRC 203, 216
(Mar. 1998) (remand not necessary where evidence could justify only one conclusion); American
Mine Servs., Inc., 15 FMSHRC 1830, 1833-34 (Sept. 1993) (same).
4.

Liability

Contestants argue that even if the Secretary's unitary operator theory is viable, principles
of administrative law and due process preclude her from applying that theory to hold Berwind and
its subsidiaries liable in this case because it amounted to a novel interpretation of the Mine Act
that was asserted without fair notice, and the Secretary failed to cite the four entities as a unitary
operator in the contested citations and orders or in her answer to the notices of contest. B. Resp.
Br. at 59-61.41 The Secretary disputes Contestants' argument that she failed to provide fair notice
of her unitary operator theory in this case on the grounds that the theory is derived from the plain
language of the Mine Act, that she had never previously advanced an inconsistent interpretation of
the Act, and that she asserted the theory at an early (summary decision) stage of this proceeding,
well before the hearing was held in this case. S. Reply Br. at 14-1 6.

11-16), it foilows that the combined Kyber/Jesse Branch entity also qualifies as an operator.
Indeed, this combined entity possesses many of the same indicia of authority and control as the
non-production operator that the Commission held was properly subject to prosecution by the
Secretary in W-P Coal, 16 FMSHRC at 1411.
41

The Commission finds no merit in Contestants' argument that, because the Secretary
never cited the four entities collectively as a single operator either in the underlying citations and
orders, or in her answers to Contestants' notices of contest, the Secretary's uni tar; operator
theory is not properly before it. See B. Resp. Br. at 60-6 1 & n.50. Even though the Secretary, in
her answers, may have alleged only that the Contestants were each individually liable as an
operator, without explicitly asserting that the four entities were collectively liable as a unitary
operator, we are not precluded from considering the unitary operator theory if it was knowingly
and fairly litigated by the parties before the judge. This result is mandated by Rule 15(b) of the
Federal Rules of Civ11 Procedure, which provides for conformance of pleadings to the evidence
adduced at trial, and permits the adjudication of issues actually litigated by the parties iITespective
of pleading deficiencies. See Faith Coal Co., 19 FMSHRC 1357, 1362 & n.1 0 (Aug. 1997). In
this case, the record indicates that the Secretary's unitary operator theory was fully litigated by
the parties and explicitly addressed by the judge. See 18 FMSHRC at 233.
1323

Notwithstanding our conclusion that under the test we adopt today, Jesse Branch and
Kyber constitute a unitary operator which would qualify as an operator under the Mine Act, a
majority of the Commission also declines to hold that combined entity liable for any violations that
may ultimately be found in this case. Commissioner Beatty concludes that it would violate
principles of due process to hold Jesse Branch liable in this case as part of the joint entity
Kyber/Jesse Branch because these entities did not receive fair notice that they could be subject to
liability under the unitary operator theory first espoused by the Secretary in this case. Slip op. at
44-47. Commissioner Riley concurs in Commissioner Beatty's position on this issue (id. at
70), while Commissioner Verheggen has indicated that he agrees with Commissioner Beatty "in
principle." Id. at 87. Chairman Jordan and Commissioner Marks would reject the Contestants'
notice argument based on their conclusion that Berwind and its subsidiaries had adequate notice
that two or more of those entities could be held liable for violations at the Elmo No. 5 Mine
pursuant to a unitary operator theory. Slip op. at 48-50, 60-61 The separate opinions of
Commissioners are set forth in Part N of this opinion.

1324

III.
· Conclusion
For the foregoing reasons, we vacate the judge's conclusion that, in order to establish an
entity as an operator under the Mine Act, the Secretary must prove that the entity, either directly
or indirectly, substantially participated in the operation, control, or supervision of the day-to-day
operations of the mine, or had the authority to do so. Instead, we evaluate the participation and
involvement of the entity in the mine's engineering, financial, production, personnel, and health
and safety matters to determine whether that entity had substantial involvement with the mine, and
therefore qualified as an operator under the Act. We affirm the judge's findings that Kyber is an
operator of the Elmo No. 5 Mine, and that Jesse Branch, Kentucky Berwind, and Berwind are not
individual operators. We remand these cases for further proceedings as to Kyber.
We vacate the judge' s rejection of the Secretary's unitary operator theory, and hold that
two or more entities may be considered a unitary operator for purposes of the Mine Act based
upon consideration of their: (1) interrelation of operations, (2) common management,
(3) centralized control of mine health and safety, and (4) common ownership. We hold that,
under this standard, Berwind and its three subsidiaries do not qualify as a unitary operator for
purposes of the Mine Act, but that Kyber and Jesse Branch do constitute a single entity, which
would qualify as an operator of the mine. We further conclude, however, that the joint entity
Kyber/Jesse Branch may not be held liable for any Mine Act violations in this case.

1325

IV.
Separate Opinions of the Commissioners
Commissioner Beatty, concluding that Berwind and its three subsidiaries do not qualify as a
unitary operator under the Commission's unitary operator test; and holding that Kyber and Jesse
Branch did not receive fair notice that they could be subject to liability under the unitary operator
theory first espoused by the Secretary in this case, and that therefore the combined Kyber/Jesse
Branch entity may not be held liable for any violations found in these cases.
A.

Berwind and Its Three Subsidiaries Do Not Qualify as a Unitary Operator

The record in this case compels the conclusion that Berwind and its three subsidiaries do
not qualify as a unitary operator. There is li ttle question that these four entities satisfy the
"common ownership" criterion, since Kentucky Berwind, Kyber, and Jesse Branch are all whollyowned subsidiaries of Berwind. In addition, the record indicates that the four companies shared
common officers and management. 1 There is als~ s9me interrelationship in the operations of the
four companies, due to their vertical integration with respect to the ownership and leasing of mine
prope1ty. 2 However, the record establishes that, with one exception discussed below, the
Contestants otherwise functioned as independent entities. Although Berwind, as the parent
holding company, was responsible for overseeing the operations of its subsidiaries and making

1

Thomas Falkie, the president of Berwind, was the chairman of the board of Jesse
3 ranch, Kentucky Berwind, and Kyber. 18 FMSHRC at 209. Berwind's vice president, Richard
Rivers, was also the vice president of the three subsidiaries. Id. In addition, Berwind's chief
financial officers acted in the same capacity for Jesse Branch, Kentucky Berwind, and Kyber; its
assistant secretary also acted as secretary for the three subsidiaries; and its controller was also the
controller of Kentucky Berwind. Id. The treasurer and assistant treasurer of Kentucky Berwind
also held the same positions with Kyber and Jesse Branch. Id. at 208. Berwind's board of
directors approved the election of Jimmy Walker as president of Jesse Branch and Kyber. Id. at
209. Walker hired Steve Looney as vice president of operations, and Bob Bond as controller, of
both of these subsidiaries. Id. Walker and the president of Kentucky Berwind both reported to
Berwind's president, Falkie. Id.
2

Although Berwind has never received a dividend as a shareholder of Kyber, it has
received dividends from Kentucky Berwind, which are in part attributable to royalties received by
Kentucky Berwind on its coal leases. 18 FMSHRC at 212. Berwind is also paid a management
fee by its subsidiaries for legal, financial, and administrative services. Id. In addition, Kyber paid
Berwind for services provided by Berwind Coal Sales, Inc., another Berwind subsidiary, in
locating customers and negotiating contracts for the sales of coal mined for Kyber. 17 FMSHRC
at 697.

1326

decisions concerning the general direction of their business (18 FMSHRC at 208-09), it was not
directly involved in the operations of Kentucky Berwind, the owner of coal reserves, or of Kyber
and Jesse Branch, which both lease coal reserves and contract for the mining of the coal they
lease. Berwind had no direct involvement with the operation of the Elmo No. 5 Mine, and no
relationship with AA&W, the contract operator. Id. at 211, 234.
The record also indicates that Kentucky Berwind and Kyber dealt with each other at
"arm's length" with respect to coal reserves leased by Kentucky Berwind to Kyber, including
those at the Elmo No. 5 Mine. The written lease agreement between the two subsidiaries
involving the mine required Kyber to, inter alia, submit coal samples from the mine to Kentucky
Berwind for quality analysis, allow Kentucky Berwind's inspectors on the premises to ascertain
the condition of the mine and the amount of coal removed, and assure that coal reserves at the
mine were mined to the greatest extent possible, consistent with mining conditions, relevant laws,
and regulations. 17 FMSHRC at 694, 713. The lease also gave Kentucky Berwind the right to
terminate the lease if it determined that Kyber was not complying with its terms, to penalize
Kyber for lost coal reserves, and to order an immediate cessation of mining ifthe reserves were
being damaged or if mining was conducted in violation of law. Id. at 714. Pursuant to the lease,
Kentucky Berwind received monthly royalties from Kyber for coal mined at that location. 18
FMSHRC at 210. Kentucky Berwind had no relationship with AA&W and no direct involvement
in the operation of the Elmo No. 5 Mine. Id. The only Kentucky Berwind employees who
entered the mine were those who visited on a quarterly basis, or upon request, to examine the
workings and check seam heights and tonnages to confirm royalties and insure that coal was being
recovered properly. Id. at 210-11.
Finally, it does not appear that there was any centralized control by these companies over
neaith and safety matters at mine property owned by Kentucky Berwind and leased to Kyber or
jesse Branch. Rather, the record indicates that health and safety issues were largely the
responsibility of the contract operator of the mine, in this case AA&W. AA&W was responsible
for the preparation and submission to MSHA of the mine's roof control plan, ventilation plan and
system, and other plans required for health and safety purposes, including the fire fighting plan,
miner training plan, smoking articles search plan, self-contained selfrescuer plan, and fan
stoppage plan. 17 FMSHRC at 690; 18 FMSHRC at 221, 226. AA& W also developed and
implemented the respirable dust and noise sampling programs required under the Mine Act and
provided required training for its miners. 17 FMSHRC at 690-91. In addition, AA& W was
responsible for maintaining preshift and onshift examination books at the mine. 18 FMSHRC at
221. AA& W representatives participated in MSHA inspections and subsequent conferences, and
decided whether to challenge the validity of citations issued by MSHA inspectors. 17 FMSHRC
at 695-96. AA&W also decided the manner in which violations should be abated and paid all
penalties assessed under the Mine Act. Id. at 696. There is no evidence that Berwind or
Kentucky Berwind had any involvement at all with respect to health and safety issues at the Elmo
No. 5 Mine.
1327

In sum, although these four entities satisfy the common ownership crit~rion and shared
common management to a significant extent, in our view these factors are outweighed by the
evidence that these entities operated essentially independently of each other and (with the
exception ofKyber and Jesse Branch, discussed below) dealt with each other at "arm's length."
In addition, there is little or no evidence that these entities exercised any significant degree of
centralized control over health and safety matters at the mine. Chairman Jordan and I believe that
the foregoing evidence compels the conclusion that Berwind and its three subsidiaries Kentucky Berwind, Kyber, and Jesse Branch - did not function as a unitary or single operator of
the Elmo No. 5 Mine under the criteria set forth above. Accordingly, we conclude that a remand
to the judge to determine whether these four entities collectively constitute a unitary operator is
not necessary. American Mine Servs., Inc., 15 FMSHRC 1830, 1833-34 (Sept. 1993); see also
cases cited supra, slip op. at 38-39.
B.

Liability/Fair Notice of the Unitary Operator Theory

It is well established that in cases involving imposition of civil penalties, considerations of
due process "prevent[] ... deference [to an agency's interpretation] ... that fails to give fair
warning of the conduct it prohibits or requires." Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156
(D.C. Cir. 1986). For, '"elementary fairness compels clarity' in the statements and regulations
setting forth the actions with which the agency expects the public to comply." General Elec. Co.
v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995) (quoting Radio Athens, Inc. v. FCC, 401F.2d398,
404 (D.C. Cir. 1968)). For an agency's interpretation may be permissible but nevertheless may
fail to provide the notice required to support imposition of a civil penalty. General Electric, 53
F.3d at 1333-34; Phelps Dodge Corp. v. FMSHRC, 681F.2d1189, 1193 (9th Cir. 1982). An
agency will be deemed to have provided fair notice of its interpretation, "[i]f, by reviewing the
regulations and other public statements issued by the agency, a regulated party acting in good
faith would be able to identify, with ' ascertainable certainty,' the standards which the agency
expects parties to conform." General Electric, 53 F.3d at 1329 (citing Diamond Roofing Co. v.
OSHRC, 528 F.2d 645, 649 (5th Cir. 1976)).

In resolving the notice issue raised with respect to the Secretary's unitary operator theory,
it is fundamental to first determine whether the Contestants, in particular Kyber and Jesse Branch,
had fair notice that they were subject to liability pursuant to that theory. 3 Despite our conclusion
3

Of course, this issue is largely academic with respect with Kyber, which we have already
found to be an operator of the mine within the meaning of the Mine Act. See Part II.B.1. With
respect to Jesse Branch, however, the question becomes far more significant, since we have
previously concluded in Part II.B.2 that Jesse Branch, on its own, does not qualify as an operator.
Therefore, our resolution of the notice issue is dispositive of whether Jesse Branch may be held
liable for any Mine Act violations, pursuant to the unitary operator theory, as part of the
Kyber/J esse Branch joint entity.
1328

that the Secretary's unitary operator theory is a reasonable statutory interpretation that merits our
deference, I conclude that, under the standards set forth above, neither the Secretary's actions nor
the language of the Mine Act were sufficient to put Kyber and Jesse Branch on notice that they
were potentially subject to liability as a joint entity in this case.
First, it is undisputed that the unitary operator theory was not previously advanced by the
Secretary in any prior civil penalty case brought pursuant to the Mine Act. Cf General Electric,
53 F.3d at 1331 (finding of lack of fair notice of agency interpretation was reinforced where
"[a]lthough th[e] reading [wa]s certainly permissible, the agency present[ed] it for the first time
[on] appeal"). In addition, although we have concluded that the unitary operator theory is
consistent with, and supported by, the meaning of certain definitional terms used in the Mine Act
- specifically, the terms "person," "association," and "organization" - as reflected in everyday
dictionary definitions of those terms, it is also fair to state that this interpretation "would not
exactly leap out at even the most astute reader" of these provisions. Rollins Envtl. Servs. Inc. v.
EPA, 937 F.2d 649, 652 (D.C. Cir. 1991).
It is also clear that the Secretary provided no notice to the Contestants, through
preenforcement efforts designed to achieve compliance with the Mine Act, that they might be
subject to liability pursuant to a unitary operator theory. See General Electric, 53 F.3d at 1329.
Rather, she "effectively decid[ed] 'to use a citation ... as the initial means for announcing [this]
particular interpretation'" of the Mine Act. Id. (quoting Martin v. OSHRC, 499 U.S. 144, 158
(1991)). It has been previously recognized that "such a decision may raise a question about 'the
adequacy of notice to regulated parties."' Id.

We have also concluded in this case that the Secretary's unitary operator theory was
presaged, and is further supported, by the single employer doctrine that has developed through
application and interpretation of similar provisions of the NLRA and Title VII. I do not believe,
however, that given the facts presented here Kyber and Jesse Branch can fairly be charged with
knowledge of these doctrines, particularly since the doctrines have developed under statutory
schemes unrelated to mine health and safety.4
Based on the foregoing, I conclude that the Contestants did not have adequate notice of
the Secretary's "unitary operator" theory of liability in this case, and therefore Jesse Branch, as
part of the Kyber/J esse Branch joint entity, should not be held liable for any Mine Act violations
ultimately found to have been committed in these cases pursuant to that theory. 5

4

In addition, Title VII has a jurisdictional prerequisite that limits its application to small
companies. See 42 U.S.C. § 2000e(b).
5

This is consistent with the result in General Electric, where the D.C. Circuit deferred to
the agency's interpretation because it was "'logically consistent with the language of the
1329

I disagree with the suggestion made by Chairman Jordan, in her separate opinion, that the
above-described requirement of fair notice has no applicability here because we are concerned not
with the requirements of a particular regulation, but rather with whether Jesse Branch was on
notice of its potential liability as a unitary operator. Slip op. at 48. In my view, the notice
requirement takes on even greater importance where, as here, the relevant agency interpretation
relates to the threshold issue of the coverage of an entirely new class of entities under the Mine
Act, as opposed to the requirements of a specific regulation. If a party has no idea of its potential
liability under a new interpretation of an existing statute or regulation, such as the unitary
operator theory, I believe that it is profoundly unfair, and inconsistent with the teachings of
General Electric and its progeny, to impose liability for civil penalties pursuant to such a theory
without fair notice.
I also find Sewell Coal Co. v. FMSHRC, 686 F.2d 1066 (4th Cir. 1982), and the other
cases cited by Chairman Jordan, to be unpersuasive. As noted by Judge Widener in his dissent in
Sewell, neither SEC v. Chenery Corp., 332 U.S. 194 (1947), nor NLRB v. Bell Aerospace Co.,
416 U.S. 267 (1974), "involved the imposition of a fine without notice." 686 F.2d at 1073. In
Bell Aerospace, the Supreme Court explicitly acknowledged this distinction, stating: "[T]his is
not a case in which some new liability is sought to be imposed on individuals for past actions
which were taken in good faith reliance on Board pronouncements. Nor are fines or damages
involved here." Id. at 295 (emphasis added). Neither Molina v. INS, 981F.2d14 (1st Cir.
1992), nor General American Transportation Corp. v. ICC, 872 F.2d 1048 (D.C. Cir. 1989), also
cited by Chairman Jordan, dealt with the imposition of liability without prior notice; indeed, in
Molina the court expressly notes that no due process claim is involved. 981 F.2d at 19. See also
Energy West lv!ining Co. , 17 FMSHRC 1313, 1317 n. 7 (Aug. 1995) (distinguishing cases on
similar grounds).

Nor am I persuaded by the arguments of Chainnan Jordan and Commissioner Marks that
Jcsse Branch should have been on notice that it was potentially liable as an operator pursuant to
the "independent contractor" provision of section 3(d). Slip op. at 50, 55. The unitary operator
theo1y is a totally separate and distinct legal construct that provides a basis for finding entities
such as Kyber and Jesse Branch to be "unitary operators," based on the interrelationship between

reguiation[s]," ' but found that the interpretation was "so far from a reasonable person' s
understanding of the regulations that they could not have fairly informed [the regulated party] of
the agency's perspective." 53 F.3d at 1330 (quoting Rollins, 937 F.2d at 652) (alteration in
original). Although the agency could require future compliance with its interpretation, the lack of
fair notice led the ·court to reverse the enforcement action taken in that particular instance. Id. at
1328, 1330. See also United States v. Hoechst Celanese Corp., 964 F. Supp. 967, 985 (D.S.C.
1996) (concluding that "due process precludes a finding of liability" where plant owner was not
afforded fair notice of U.S. Environmental Protection Agency's interpretation ofregulatory
exemption from benzene regulation).
1330

the entities. Therefore, any arguments by my colleagues in the majority that Jesse Branch was
alternatively liable as an independent contractor fail to recognize the distinctions between these
two theories and therefore have no bearing whatsoever on the question of whether Jesse Branch
had adequate notice of its potential liability as a unitary operator.6
Accordingly, I conclude that because Jesse Branch did not have adequate notice of the
Secretary's "unitary operator'' theory of liability in this case, and that it was thus subject to
liability as part of the Kyber/Jesse Branch joint entity, it should not be held liable for civil penalties
assessed for any Mine Act violations that are ultimately found in this case.

Robert H. Beatty, Jr., Com.missioner

6

I also note that the Commission majority has agreed that the Secretary has failed to
preserve on appeal the issue of the potential liability of Jesse Branch as an independent contractor.
See slip op. at 16 n.16.
1331

Separate opinion of Chainnan Jordan, holding that Jesse Branch received fair notice that it could
be held liable as an operator:
I write separately to express my view that Jesse Branch was provided with sufficient
notice regarding its potential liability as an operator. 1 At the outset, it is essential to understand
what this inquiry does not involve: it is not concerned with the question more frequently posed in
Mine Act cases as to whether an operator had notice about the requirements of a particular
regulation. See, e.g., Ideal Cement Co., 12 FMSHRC 2409 (Nov. 1990). Consequently, a
discussion of whether a regulation provided "fair warning of the conduct it prohibits or requires,"
(separate opinion of Commissioner Beatty, slip op. at 44, citing Gates & Fox, 790 F.2d at 156),
or whether an operator could know "with 'ascertainable certainty,' the standards which the
agency expects parties to confonn" (id.), is not helpful here. This case is simply not about
whether a reasonably prudent person would have been put on notice of a specific standard
requiring, for example, that signs needed to be posted (Bluestone Coal C01p., 19 FMSHRC 1025
(June 1997)) or a circuit breaker set at a certain level. BHP Minerals Int'!, Inc., 18 FMSHRC
1342 (Aug. 1996). Rather, it is simply about whether Jesse Branch was on notice of its potential
liability as an op~rator. This question hinges on the language of the Mine Act and its
interpretation.

In this case we adopt the unitary operator theory, and, as is the common practice, apply
the rule we are announcing to the relevant parties in this proceeding. This is consistent with the
widely recognized concept that "retroactive application of new principles in adjudicatory
proceedings is the rule, not the exception." Molina v. INS, 981 F.2d 14, 23 (1st Cir. 1992). In
Molina, the First Circuit explicitly addressed the question of whether the INS had improperly
utilized a retroactive interpretation in a proceeding in which it ordered an individual deported
despite his amnesty request. id. at 20-23 . The Court held that in so doing, INS acted within its
iegal authority. Id. at 23.
Similarly, in Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1070 (4th Cir. 1982), in which
the Fourth Circuit affirmed a Commission judge's decision imoosing a penalty on an operator, the
court held that, "retroactive appiication of a novei principle expounded in an adjudicatory
proceeding does not infringe the rights secured by the due process clause." In fact, the D.C.
Circuit has noted that "it seems ciear that the circumstances in which a rule may be announced but
not applied in an adjudication are few." General Am. Transp. COip. v. ICC, 872 F.2d 1048, 1061
(D.C. Cir. 1989) (ttphoiding the retroactive application of the reversal of a 40 year old Interstate
Commerce Commission policy that had prevented railroads from charging the owners of railcars

1

I do not address the issue of whether or not Kyber had notice of the unitary operator
theory, as the Commission has already found that Kyber is an operator, based on its status as a
single entity (slip op. at 11 -1 6) and was on notice of its potential liability as an operator (slip op.
at 16n.15).
1332

for transportation costs in ce1iain circumstances). See also Local 900, Int 'l Union of Elec.,
Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1194-95 (D.C. Cir. 1984) (upholding
retroactive application that resulted in imposition of money damages).
This doctrine was carefully articulated by the Supreme Court in SEC v. Chenery Corp.,
332 U.S. 194 (1947). In Chenery the Court reviewed a decision of the Securities and Exchange
Commission ("SEC") applying new standards of conduct to management trading during a stock
reorganization. The SEC ruled that the trading at issue violated federal law. The corporations
argued that the SEC was free to announce its new rule but that it had to remain prospective and
could have no retroactive effect upon the parties to the case.
The Supreme Court soundly rejected this approach, stating:
To hold that the Commission had no alternative in this proceeding
but to approve the proposed transaction, while formulating any
general rules it might desire for use in future cases of this nature,
would be to stultify the administrative process. That we refuse to
do.

There is thus a very definite place for the case-by-case evolution of
statutory standards ....
. . . [W]e refuse to say that the Commission, which had not
!Jreviousiy been confronted with [the question at issue], was
forb idden from utilizing this particular proceeding for announcing
and applying a new standard of conduct. That such action might
have a retroactive effect was not necessarily fatal to its validity.
Every case of first impression has a retroactive effect, whether the
new principle is announced by a court or by an administrative
agency. But such retroactivity must be balanced against the
mischief of producing a result which is contrary to a statutory
design or to legal and equitable principles.
jd. at 202-03 (emphasis added) (citation omitted).

As Justice Scalia has noted, "Chenery involved that form of administrative action where
retroactivity is not only permissible but standard. Adjudication deals with what the law was;
rulemaking deals with what the law will be." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
221 (1988) (Scalia, J., concurring) (emphasis in original).

1333

Moreover, Jesse Branch should have been on notice in any event that it was potentially
liable as an operator. The Secretary argued before both the judge and the Commission that Jesse
Branch should be considered an operator of the Elmo Mine pursuant to section 3(d) of the Mine
Act because it was an independent contractor performing services at a mine. S. Mot. Part. Sum.
J. at 33, n. 27, S. Br. at 55 n. 21. Although I agree with the Commission's holding that the
Secretary failed to preserve this question on review to prove liability (slip op. at 16 n.16), I
conclude that, for purposes of ascertaining whether proper notice existed, the record would
compel the conclusion that Jesse Branch was an independent contractor. This is due to the mine
mapping, surveying, and spad services it performed at the mine. 17 FMSHRC at 711-12. The
case law is clear that such an independent contractor may be held liable as an operator. Williams
Natural Gas Co., 19 FMSHRC 1863 (Dec. 1997). Accordingly, Jesse Branch should always have
been aware of its duty to comply with the Mine Act and its regulations. It should not be
permitted to escape liability in this case by claiming that it lacked adequate notice of its legal
responsibilities. 2

2

In addition, I agree with Commissioner Beatty that, applying the unitary operator test

that we adopt today, 'the record in this case compels the conclusion that Berwind and its three
subsidiaries do not qualify as a unitary operator. See slip op. at 42-44.
1334

Separate opinion of Commissioner Marks, concurring in part and dissenting in part:
I join with the majority in concluding that Kyber qualifies as an operator under the Mine
Act. I dissent from the majority in their conclusion that neither Berwind, Kentucky Berwind, or
Jesse Branch are operators because 1 find that all three of these entities qualify as operators. !join
with the majority in adopting a unitary operator test, and in concluding that under such test, Jesse
Branch and Kyber compose a unitary operator. However, I conclude that all four entities Berwind, Kentucky Berwind, Kyber, and Jesse Branch - constitute a unitary operator and
therefore dissent on that ground.
A.

Kyber

As discussed in the majority opinion, Kyber had substantial involvement with the mine.
Kyber was the lessee of Elmo No. 5 Mine and possessed the right to mine coal at that mine. 17
FMSHRC at 689. Kyber contracted with AA&W for the mining of the coal. Id. at 689-90. As
part of the arrangement with AA&W, Kyber had "bottom line authority" for determining the
direction of mining; it had final authority to approve mining projections and "to insist upon the
projections it wanted." Slip op. at 11 (citing 18 FMSHRC at 237-3 9). Kyber also had some
involvement in the decisions concerning the manner of mining and the quality and quantity of coal
produced at the mine. Slip op. at 12-1 3. The contract with AA&W gave Kyber the authority to
approve and enforce Elmo No. 5's mine plan, which governed matters such as the applicable
ventilation and roof control plans, the number of employees, and the type of equipment to be
used. Id. at 12. As the majority correctly points out, the authority to control operations is a
relevant consideration in determining whether an entity qualifies as an operator. Id. Based on
these facts, Kyber' s participation more than exceeds the substantial involvement test applied by
the Commission in this case. After all, in an analogous context, "substantial" has been described
by the Supreme Court and courts of appeals as amounting to "more than a mere scintilla."
Richardson v. Perales, 402 U.S. 389, 401(1971) (quoting Consolidated Edison Co. v. NLRB,
365 U.S. 197, 229 (1938)) 1; Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455 , 475 (D.C.
Cir. 1998); Kajaria Iron Castings PVT Ltd v. United States, 156 F.3d 1163, 1173 (Fed. Cir.
1998). Webster's II New Riverside University Dictionary at 1045 (1988) defines a "scintilla" as
" a tiny amount: trace." K.yber certainly exhibited more than a scintilla of involvement in the Elmo
No. 5 Mine.
My conclusion that Kyber is an operator is buttressed by the cases of Association of
Bituminous Contractors, Inc. v. Andrus, 581 F.2d 853, 861-62 (D.C. Cir. 1978); Chaney Creek
Coal Corp v. FMSHRC, 866 F.2d 1424, 1432 n.9 (D.C. Cir. 1989); and International Union,
UMWA v. FMSHRC, 840 F.2d 77, 82 n.8 (D.C. Cir. 1988). In those cases, the D.C. Circuit

1

The concept of substantial evidence has been defined as "more than a mere scintilla."
Richardson, 402 U.S. at 401.
1335

explained that regardless of an owner's or lessee's level of activity at a mine, an owner or a lessee
qualify as an operator under section 3(d) of the Mine Act. Id. By virtue of the fact that Kyber
was the lessee of the Elmo No. 5 Mine, l(yber qualifies as an operator under the Mine Act. 17
FMSHRC at 689.
The plain language of the Mine Act also supports that view. Under section 3(d),
"operator" means "any owner, lessee, or other person who operates, controls, or supervises a
coal or other mine or any independent contractor performing services or construction at such
mine." 30 U.S.C. § 802(d) (emphasis added). The Mine Act does not attach conditions to the
type of owner or lessee who may be an operator but states that "any owner, lessee ... " qualifies
as an operator. Use of the term "any" in the provision indicates that "any" owner or lessee is an
operator under the Act. As stated in my concurring opinion in Joy Technologies Inc., 17
FMSHRC 1303 (Aug. 1995), with respect to the independent contractor clause of the operator
definition, "any" means "any" and there is no warrant in the plain language of the Act or in the
legislative history for diluting the term "any." Id. at 1311 (citing Otis Elevator Co. v. Secretary of
Labor, 921F.2d1285, 1290 (D.C. Cir. 1990)). The D.C. Circuit in Andrus likewise reasoned
that, if one assumes a contrary view and interprets the clause "who operates, controls, or
supervises a coal mine" to attach to "owner," "lessee," as well as "other person," the
"specification of owner and lessee would then be superfluous" and the statute could merely have
read '"operator' means any person who operates, controls or supervises a coal mine." 58 1 F.2d
at 862. The Mine Act specifically named "any owner, lessee, or person who operates ... ['a]
mine" as operators. Adhering to that plain language, I conclude that Kyber, as "any lessee,"
qualifies as an operator.
B.

Kentucky Berwind

~(emucky Berwind was the owner of the mineral rights at the Elmo No . 5 Mine. JSF 52.
As the legal owner, Kentucky Berwind had the right to extract coal from the mine itself or could
lease that right to others. JSF 88. In contracting the right to extract coal to Kyber, Kentucky
Berwind maintained substantiai involvement with the workings of the Elmo No. 5 Mine. In the
lease agreement, Kentucky Berwind retained the right to approve long-term contracts for the sale
of coal to any third party; required Kyber to submit samples and analyses of coal; required Kyber
to maintain records of coal produced and sold; required Kyber to regularly furnish it with mine
maps; permitted Kentucky Berwind's inspectors to enter on to the premises for coal sampling,
inspections, surveying, measuring, and ascertaining the conditions of the mine; required Kyber to
adhere to the laws and regulations promulgated under the Mine Act; required Kyber to secure the
written permission of Kentucky Be1wind to sublease or assign any part of the leasehold. JSF Ex.
Bat 13, 15, 18-20, 21, 22-23 (Lease Agreement). The lease agreement indicates that Kentucky
Berwind had the authority to oversee many of the operations of Elmo No. 5, including whether
health and safety regulations were being fo llowed at the mine. As discussed in section A, supra, it
is the authority to control operations, and not the actual exercise of that authority, that is relevant
in determining whether an entity qualifies as an operator.

1336

Kentucky Berwind's substantial involvement in the workings of Elmo No. 5 Mine is
particularly illustrated in three instances. First, Kentucky Berwind regularly inspected Elmo No. 5
pursuant to the lease agreement with Kyb~r. JSF Ex.Bat 19-20. Kentucky Berwind's inspectors
conducted inspections of the mine on at least 16 occasions between June 19, 1990, and
September 24, 1993. JSF 224-26. Kentucky Berwind's inspectors had the right to enter the mine
and mine property and inspect at will. JSF 228. As part of these inspections, Kentucky
Berwind's inspectors developed inspection reports detailing their observations. JSF Ex. D. The
reports noted the general conditions of the surface and underground areas, including whether the
roof control plan was being followed, whether ventilation was adequate, and the type and
condition of the mine floor and roof. JSF Ex. D-2.
Second, Kentucky Berwind's oversight is shown by its reaction to the April 1993 roof fall
at the Elmo No. 5 Mine caused by blasting at the neighboring Corvette mine. JSF Ex. E.
Kentucky Berwind was notified of the incident and sent its head inspector, Steve Dale, to the
mine to determine the cause of the problem. JSF 295-302, Ex. E (Memo to Hunt from Dale,
dated April 20, 1993).2 In particular on April 12, 1993, Dale obtained mine maps from Jesse
Branch and went to the Elmo No. 5 Mine. JSF Ex. E. He accompanied an MSHA inspector and
an AA&W representative underground and examined the cause of the roof fall. JSF 298, Ex. E.
One citation was issued to the mine for the fall. JSF 300, Ex. E. Dale worked with Jimmy
Walker, President ofKyber and Jesse Branch, to come up with an acceptable solution for blasting
at the Corvette Mine so as not to endanger the safety of miners at the Elmo No. 5 Mine. JSF 301,
Ex. E. Dale also ensured that the violation was abated. JSF Ex. E. This sequence of events,
which was stipulated to by the parties (JSF 302), unquestionably shows Kentucky Berwind 's
substantial involvement with the Elmo No. 5 Mine. Even the judge, following the incorrect test
of day-to-day control, stated that "this may show that Kentucky Berwind was ' involved ' with the
operation at the mine." 17 FMSHRC at 715. 3 Unlike the majority and the judge, I do not dismiss
this as an isolated instance of Kentucky Berwind's taking control in order to protect its property
rights. Slip op. at 20; 17 FMSHRC at 714-15. I agree with the Secretary that the level of control
that Kentucky Berwind exhibited with regard to this roof fall plainly demonstrates that Kentucky
Berwind had the authority to actively oversee operations at the mine and would exercise that
authority when a specific need arose for it to do so. S. Br at 43.

2

According to Dale's April 20, 1993 memo, Dale notified the president of Kentucky
Berwind, Raymond Brainard, about the roof fall, who, in tum, directed Dale to investigate. JSF
Ex. E.
3

Although the majority today espouses an operator test that focuses on substantial
involvement rather than the judge's day-to-day approach, my colleagues, in actuality, seem to be
applying a more stringent test calling for day-to-day control. Certainly, the facts here indicate that
Kentucky Berwind's involvement with Elmo No. 5 was far greater than a scintilla and should be
considered substantial.
1337

The third indicium of Kentucky Berwind's substantial involvement is that Kentucky
Berwind participated in decisions concerning changes in mining direction. JSF 188, 189, 191,
192. In particular, Kyber notified Kentucky Berwind before decisions were made to not mine an
area that had been projected to contain recoverable coal. JSF 191. Kyber sought guidance from
Kentucky Berwind as to whether mining should continue in certain areas where the coal contained
an unusually high level of inherent ash. JSF 193. During the process of waiting for a decision
from Kentucky Berwind as to the direction of future mining, AA&W mined an area of the mine
that had prior approval. JSF 190. Accordingly, Kentucky Berwind's authority to approve or
disapprove mining changes had a significant effect on the actual working of the mine.
The case of W-P Coal Co., 16 FMSHRC 1407 (July 1994) is instructive. There, the
Commission found the level of involvement of W-P Coal Company, which is comparable to that
of Kentucky Berwind, sufficient to support the Secretary's decision to proceed against W-P as an
operator. Id. at 1411. Like Kentucky Berwind, W-P held the mining rights to the mine but
contracted with Top Kat to extract the coal in return for royalty payments paid to W-P. Id. at
1407. The Commission found significant that W-P personnel visited the mine frequently, had met
with MSHA personnel regarding mine conditions, and had involvement in the mine's engineering,
financial, production, personnel, and safety affairs. Id. at 1411. Similarly, Kentucky Berwind
inspectors were on mine premises regularly and had contact with MSHA following the roof fall
incident. JSF 224-26, 302, Ex. E. Under the lease agreement with Kyber, Kentucky Berwind
retained authority to oversee financial, production, engineering, and safety affairs. JSF Ex. B at
13-15, 18-20, 21 , 22-23. In W-P Coal, the Commission recognized that the Secretary did not
have to show that the owner and the contract operator were co-equals in order for the Secretary
to proceed against the owner of the mine. 16 FMSHRC at 1411. The Commission expressly did
not reach the argument that an entity only passively involved with a mine was also properly cited
for a contractor's violation, but found W-P's involvement more than a sufficient basis for MSHA
to proceed against it. Id. at 1411 n.5. Applying a similar substantial involvement test, Kentucky
Berwind had sufficient participation with the workings of the Elmo No. 5 Mine for the Secretary
to proceed against it as an operator.
Finally, and perhaps most importantly, Kentucky Berwind was the "owner of the
premises." Lease Agreement, JSF Ex.Bat 18. Pursuant to Andrus, 581 F.2d at 861-62, and the
plain terms of the Mine Act section 3(d), which the majority seems quite willing to disregard,
Kentucky Ben¥ind is an operator by virtue of the fact that it is "any owner." Accordingly, I
would reverse the judge's determination that Kentucky Berwind was not an operator under the
Act.

C.

Jesse Branch

I join with the majority in concluding that Jesse Branch and Kyber functioned as a single
entity with respect to their control over the operation of the Elmo No. 5 Mine. Slip op. at 38-39.
Having concluded that Kyber was an operator having substantial involvement with Elmo No. 5
Mine, I am led to the conclusion that Jesse Branch also qualifies as an operator.
1338

Additionally, I also believe that Jesse Branch, standing alone, qualifies as an operator.
Under Mine Act section 3(d), an operator is defined as "any independent contractor performing
services at a mine." 30 U.S.C. § 802(d). The evidence unquestionably reveals that Jesse Branch
was an independent contractor performing services at the mine. 4 Jesse Branch performed the
engineering services of surveying, spad setting and preparation of mine maps. Slip op. at 17. The
mine maps prepared by Jesse Branch established the projections that AA&W was required to
follow when driving 0ntries in the mine, and also designated the areas in the mine from which coal
could not safely be extracted because of the presence of natural gas wells. 17 FMSHRC at 693;
JSF 166, 167, 178, 179. Jesse Branch employees generally surveyed and set spads at the mine on
a weekly basis. 17 FMSHRC at 692-93. Jesse Branch provided AA&W with technical expertise
that AA&W lacked regarding on-site implementation of the projections, the mine cover, and the
number of entries it would sustain. 18 FMSHRC at 241-42. While conducting surveys at the
mine, Jesse Branch employees also collected information concerning the dimensions of the coal
seam, entry ways, and coal pillars, the centers on which mining was conducted, stopping lines,
conveyor beltlines and roof falls. 17 FMSHRC at 693. Jesse Branch also inspected the drainage
ponds on the surface of the mine. JSF 209. The majority concludes that "Jesse Branch played an
important role in the operation of the Elmo No. 5 Mine." Slip op. at 17. On the additional
ground that Jesse Branch was, at the very least, an independent contractor performing services at
the mine, I would reverse the judge and conclude that Jesse Branch constituted a separate
operator under the Act.

4

The Secretary argued to the judge that Jesse Branch was as an independent contractor
;_)erfom1ing services at the mine and as such "(fell] squarely into the Mine Act's definition of an
'operator. "' S. :viot. Part. Sum. J. at 33 n.27 . The judge failed to address the Secretary's
independent contractor argument. In her brief to the Commission, the Secretary also asserted that
Jesse Branch is an operator under the Act because it was an independent contractor performing
services at the Elmo mine. S. Br. at 55 n.21. While the majority does not entertain the
Secretary's independent contractor argument (slip op. at 16 n.16), I believe the Secretary's
petition for review, which generally disputed the judge's holding that Jesse Branch was not an
operator under the Act (S. PDR at 1-2, 17), more than adequately encompasses the Secretary's
argument. This Commission is generally willing to broadly construe the petition for review to
preserve parties' argument. See Fort Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 1514
(Sept. 1997) (constrning petition to implicitly request reversal of judge's unwarrantable failure,
negligence and section 11 O(c) conclusions when petition merely requested that Comm ission
"reverse the judge's decision"); Rock of Ages C01p., 20 FMSHRC 106, 115 n.11 (Feb. 1998)
(Commission addressed unwarrantability determinations when petitioner only generally raised
negligence issue in PDR), aff'd in relevant part, 170 F.3d 148 (2d Cir. 1999). Thus, I believe the
issue is properly before the Commission and should be addressed.

1339

D.

Berwind

In determining that Berwind was not an operator, the judge applied the incorrect day-today control test and failed to inquire into whether Berwind was involved in the Elmo No. 5 Mine.
The majority, although rejecting the judge's day-to-day test, does not stray far from it. What the
majority overlooks is that when the term "operator" was first defined in the Coal Act, Congress
specifically explained that indirect operation, control or supervision of a mine may render a
person an operator. S. Rep. No. 91-411, at 44; Coal Act Legis. Hist. at 170. Berwind provides a
perfect example of an entity that exercised substantial indirect control and supervision such that it
qualifies as an operator under the Act.
Berwind is the parent company of Kentucky Berwind, Kyber and Jesse Branch. JSF 58.
It is a holding corporation whose business it is to oversee its subsidiaries. JSF 63. Berwind had
the power to direct its subsidiaries as well as to approve and remove the officers of the
subsidiaries. JSF 64-66. The parties stipulated that three individuals were the primary officers
that acted on behalf ofBerwind. JSF 62. Those individuals were Thomas Falkie, president of
Berwind, and vice presidents Richard Rivers and Bryan Ronck. JSF 60, 62. 5 All three of those
individuals were also board members or officers for Kentucky Berwind, Kyber, and Jesse Branch.
17 FMSHRC at 688. The president of Kyber and Jesse Branch, Jimmy Walker, reported directly
to the president ofBerwind, Thomas Falkie, regarding the operation of the two companies. JSF
69. Similarly, the president of Kentucky Berwind, Ray Brainard, reported to Falkie. JSF 69. 6
Berwind had the power to approve, reject, or replace the officers ofKyber, Jessie Branch, and
Kentucky Berwind. 17 FMSHRC at 688; JSF 66, 67. By virtue of the fact that Berwind
unilaterally selected and/or approved the officers of Kentucky Berwind, Kyber, and Jesse Branch,
Berwind exerted substantial indirect control over the Elmo No. 5 Mine.
When the President of Jesse Branch and Kyber, Jimmy Walker, selected AA&W to
contract mine the Elmo mine, Walker advised the president ofBerwind, Falkie, of the selection.
JSF 97. Berwind maintained a policy that its subsidiaries must only engage mining contractors to
perform mining operation on land owned by Berwind subsidiary companies that were capable of
operating the mines in a safe manner, including operation in conformity with MSHA's regulations
and state mining regulations. JSF 98. In order to conform to corporate policy, Berwind
requested Kyber to assure itself that AA&W was capable of operating the Elmo mine in a safe
manner. JSF 99. Accordingly, Berwind had indirect substantial involvement in the safety of the
Elmo No . 5 Mine.

5

On at least two occasions, Thomas Falkie visited the Elmo mine. JSF 229. Bryan
Ronck visited AA&W's corporate office. JSF 229.
6

Bryan Ronck, Berwind's vice president and chief financial officer, oversees the
controller for Kyber and Jesse Branch, Bob Bond. JSF 34, 60, 74.
1340

Berwind performed substantial oversight ofKyber, Jesse Branch, Kentucky Berwind, and
the workings of the Elmo mine. The judge found that Berwind is involved in decisions that affect
the general direction of business of its subsidiaries. 17 FMSHRC at 688. Berwind reviews
financial statements and coal production reports of Kentucky Berwind, Kyber, and Jesse Branch.
Id. at 688-689. In particular, Falkie and Rivers, Berwind's vice president, who is also vice
president ofKyber, Jesse Branch, and Kentucky Berwind, monitor Kentucky Berwind's leaseholding activities and are aware of the economic performance, personnel, coal sales, and coal
quality ofKyber and Jesse Branch. Id. at 689. Falkie receives monthly reports from Kyber and
Jesse Branch regarding coal production at each mine in which contract mining is conducted. Id.
Kyber submits reports to Berwind listing the projected tonnage for the Elmo No. 5 Mine, and the
amount of coal actually mined, along with small mine maps of areas that have been mined. JSF
281. Kyber aiso submits financial reports documenting monies generated in mining operations.
JSF 282. After the explosion, from which these citations stem, Falkie began receiving internal
daily reports on the amount of coal processed at Kyber and Jesse Branch preparation plants. JSF
77.
Berwind had the ultimate responsibility to resolve disputes between its subsidiaries,
including disputes over the feasibility of mining certain resources owned by Kentucky Berwind.
JSF 68. This power of final resolution is very significant in that, ifKyber and Kentucky Berwind
were to disagree over the mining projections at Elmo No. 5, whether or not they ever did so, it
was up to Berwind to make the final binding determination. Id. As set forth above, the authority
to control is a relevant consideration in the operator inquiry.
Berwind's control is best illustrated in its economic dealings with Kyber and Jesse Branch.
The parties stipulated that neither Jesse Branch nor Kyber are profitable companies. JSF 284.
Berwind as the shareholder of those companies provides some funds to them for their operating
expenses and capital expenditures. Id. All significant expenditures are approved by Berwind. Id.
Berwind provided the capital expenditure required to conduct the preparatory and face-up work
necessary to begin mining at the Elmo mine. 18 FMSHRC at 234; JSF 286. In its economic
dealings, Berwind had direct substantial involvement with the mine.
Berwind's direct and indirect participation in the workings of Elmo No. 5 Mine more than
qualifies as substantial involvement. For this reason, I would reverse the judge's finding that
Berwind is not an operator.

1341

E.

Unitary Operator

Although I join in the majority's adoption of the unitary operator test, I conclude that all
four Berwind entities in question satisfy the Commission's test. Therefore I dissent on that
ground.
Under the Commission's test, four general factors are considered, but not every factor
need be present and no particular factor is controlling. Slip op. at 33. Those factors are
(1) interrelation of operations, (2) common management, (3) centralized control over mine health
and safety, and (4) common ownership. Id. Without question, the record conclusively establishes
the two factors of "common ownership" and "common management." Id. at 2, 56. As to the
factor of"interrelation of operations," the high level of common management causes a substantial
degree of interrelation in this case. I agree with the Secretary that there is no way to separate the
actions Falkie, Rivers, and Ronck took as members of the boards of Berwind's subsidiaries from
their actions as members of the board for Berwind. S. Br. at 46 n.17. Indeed, both Rivers,
General Counsel ofBerwind (as well as vice president of Kentucky Berwind, Kyber, and Jesse
Branch) and Ronck, Chief Financial Officer ofBerwind (as well as treasurer of Kentucky
Berwind, Kyber, and Jesse Branch) provided legal and financial oversight to the subsidiaries. JSF
73-74, 102-103.
Interrelation of operations is also illustrated in the financial arrangements among the
companies. Berwind provided Kyber and Jesse Branch with necessary capital for expenses and
capital expenditures and never received a dividend as a shareholder ofKyber. 18 FMSHRC at
212; JSF 284. Berwind was involved in the financial analysis aspects of some equipment
purchases made by Jesse Branch and Kyber. JSF 285. A high degree of interrelation is further
shown in the arrangement between Berwind, Kyber/Jesse Branch, and Kentucky Berwind as to
the power to approve or disapprove mining changes at the Elmo No. 5 Mine. JSF 188-193.
Kyber had the bottom-line authority to approve mining projections in its relationship with
AA&W; Kentucky Berwind in tum had the authority to approve or disapprove any changes in
mining projections in its relationship with Kyber; and in case of any disputes between them,
Berwind had the ultimate responsibility to resolve disputes among its subsidiaries. 18 FMSHRC
at 237-3 9; JSF 68, 188-93. These arrangements show a high degree of interrelation between the
entities with Berwind having the final and dispositive authority in disputed matters among the
entities.
The Berwind entities also had a high degree of interrelation with respect to health and
safety matters. This interrelation of operations is particularly illustrated by the April 1993 roof
fall at the Elmo Mine. The memo of Kentucky Berwind head inspector Steve Dale, dated April
20, 1993, that the parties stipulated was an accurate account of the activities of personnel of
Berwind and its subsidiaries, is on the parent company Berwind's stationery. JSF 302, Ex. E.
According to the memo, Randy Scott, the vice president of engineering for both Jesse Branch and
Kyber contacted Dale about the roof fall. JSF 302 Ex. E. Dale contacted the president of
Kentucky Berwind, Ray Brainard. Id. Brainard reports to Falkie, president ofBerwind and
1342

Chairman of the Board for Kentucky Berwind, Kyber, and Jesse Branch. JSF 34, 55, 60, 69.
Dale was sent to investigate. JSF Ex. E. He met with Randy Scott and Jim Akers of AA&W and
discussed the effect the blasting had on the Elmo No. 5 Mine. Id. He reported his findings to the
president of Kentucky Berwind. Id. Dale and other Kentucky Berwind inspectors investigated
the roof fall. Id. As part of his investigation, Dale went to Jesse Branch to pick up maps of the
Elmo No. 5 Mine. Id. Dale then accompanied MSHA in its inspection of the Elmo mine, and
ensured that all citations were properly abated. Id. Dale was involved in working out a plan
between Walker, president ofKyber and Jesse Branch, and the neighboring Corvette mine. Id.
As to the fourth factor, centralized control over health and safety matters, it may be true
that AA& W handled the day-to-day health and safety matters. But this is not dispositive. As the
court stated in Penntech Papers, Inc. v. NLRB, 706 F.2d 18 (1st Cir. 1983), with respect to
centralized labor relations, upon which the majority draws for its test: "Although [the company's]
day-to-day labor matters were apparently handled at the local level, this fact is not dispositive. 'A
more critical test is whether the controlling company possessed the present and apparent means to
exercise its clout in matters.. . by its divisions or subsidiaries."' Id. at 26 (quoting Soule Glass &
Glazing Co. v. NLRB, 652 F.2d 1055, 1075 (1st Cir. 1981). As set forth previously in my
opinion, both Kentucky Berwind and Berwind required compliance with health and safety
regulations at the Elmo No. 5 Mine. Berwind had the authority to replace any of its subsidiaries'
officers and to resolve disputes among subsidiaries. Berwind also had significant funding control
over Kyber/Jesse Branch who, in turn, held the bottom line authority for determining mining
projections at Elmo No. 5 Mine as well as approving the mine plan, which governed many health
and safety matters at the mine. See slip op. at 11-12. Berwind may not have had local control of
the safety of the mine, but the record compels the conclusion that Berwind possessed the clout in
any matters of dispute between its subsidiaries and had the authority, by its control of
:nanagement and funding, to direct and oversee the four entities at issue.
:-he evidence in this case reveals that, although ostensibly separate corporations, the
3 erwind respondents acted as an integrated mining operation7 together with the contract operator
AA& W to perform the functions that were necessary to the mining operation at the Elmo No. 5
Mine. Each of the respondents had a specialized function in which they engaged for the benefit
of the overall mining operation. Berwind was established to oversee the subsidiaries and, as such,
it provided its subsidiaries with the capital necessary for their operations. JSF 283, 285, 286.
Berwind specifically provided the capital for the face-up work necessary to begin operation of the
i2lmo No. 5 Mine. JSF 286. The officers of the subsidiaries reported to Falkie, who was the
presid ent ofBerwind, as well as the Chairman of the Board for Kyber, Kentucky Berwind, and

7

Senior MSHA official Jack Tisdale explained the integrated mining operation ("IMO")
as a mining operation in which a business entity that owns the right to extract the coal, markets
the coal, and capitalizes the operations. Tr. 330-33. The specialized functions of the IMO are
divided into departments including sales, operations, operations support, finance, purchasing,
legal, human resources, and corporate development. Tr. 330.
1343

Jesse Branch. JSF 23, 34, 55, 60, 69. Members of Beiwind's Board of Directors sat on the
boards of directors for each of its subsidiaries. JSF 23, 34, 55, 60. Kyber and Jesse Branch
contracted out the actual extraction of coal, supervised the extraction, and provided engineering
support necessary to run the mine. 18 FMSHRC at 207; JSF 22, 33, 149. Coal consumers paid
Kyber for coal extracted. JSF 236. Kyber paid royalties to the Beiwind subsidiary, Kentucky
Berwind, who was the owner of the premises, and who also performed a supervisory role over the
mmmg. JSF 52, 188-89, 191-93. In turn, Kentucky Beiwind paid dividends to Beiwind. JSF
287.
The four entities acted in concert to start up the mine, to finance its operation, and to keep
the mine running. The fact that these four entities have been separately incorporated should not
bar their treatment as an operator, when if one entity was performing all these functions that entity
would clearly be held to be an operator. In determining that Beiwind exercised "such pervasive
control" over the entities that the entities should be treated as one (slip op. at 33), I find relevant
that Kyber and Jesse Branch were not profitable, self-supporting companies. JSF 284. Beiwind
provided them with funds for operating expenses and capital expenditures. Id. Effectuation of
the Mine Act's purpose is clearly enhanced by requiring large and well-funded entities that
oversee subsidiary coal production companies, which are not so wel~ funded, to be involved in
safety aspects of the mine. Cf Cyprus Indus. Minerals Co. v. FMSHRC, 664 F.2d 1116, 1120
(9th Cir. 1981) ("A mine owner cannot be allowed to exonerate itself from its statutory
responsibility for the safety and health of miners merely by establishing a private contractual
relationship in which miners are not its employees and the ability to control the safety of its
workplace is restricted") (citing Republic Steel Corp., 1FMSHRC5, 11(April1979)).
Under the test announced by the majority, I conclude that Beiwind, Kentucky Beiwind,
Kyber, and Jesse Branch constitute a unitary operator.
l....

Notice

I join with Chairman Jordan in concluding that, because we adopt the unitary operator
theory as part of an adjudicative proceeding, it is appropriate to apply the theory to the relevant
parties in the proceeding. Because I conclude that all four entities constitute a unitary operator,
neither Kyber nor Jesse Branch nor Kentucky Beiwind nor Beiwind may claim lack of notice of
the Secretary's theory as a bar to their potential liability as operators.

Moreover, there was sufficient court and Commission precedent to put Kyber, the lessee
of the mine, on notice that it was subject to potential liability as an operator as a result of the D.C.
Circuit' s interpretation of section 3(d) of the Mine Act in Andrus, 581 F.2d at 861-62. There the
court opined that the clause, "who operates, controls, or supervises a coal or other mine" in
section 3(d) only modified the preceding noun "other person," thereby rendering any "owner" or
"lessee" liable as an operator regardless of its level of involvement in or control over the mine's
activities. Id. (emphasis added). This interpretation of the language of section 3(d) was approved
by the D.C. Circuit in Chaney Creek, 866 F.2d at 1432 n.9 and International Union, UMWA v.
1344

FMSHRC, 840 F.2d at 82 n.8. See also Bituminous Coal Operators Ass 'n, Inc. v. Secretary of
Interior, 547 F.2d 240, 246 (4th Cir. 1977) ("But the [1969 Coal] Act does not limit the term
operator to owners and lessees. It expressly mentions any 'other person who ... controls or
supervises a coal mine. '") In addition, the .Commission case of W-P Coal Co., 16 FMSHRC 1407
(July 1994), held that a lessee was properly subject to suit as an operator of the subject mine.
Likewise, Jesse Branch should have been on notice that it was potentially liable as an
operator because the record compels the conclusion that it was an independent contractor
performing services at the mine. So too, Kentucky Berwind, as the owner of the mine, should
have been on notice that it was potentially liable as an operator. Andrus, 581 F.2d at 861-62.
Similarly, Berwind, by virtue of its involvement with the Elmo mine, as well as because it
provided supervision and control over the owner and lessee of the mine, should have been on
notice that it potentially could be held liable as an entity "who operates, controls, or supervises a
coal or other mine." 30 U.S.C. § 802(d). Accordingly, I conclude that all four Berwind entities
had sufficient notice that they were potentially subject to liability as operators under the Mine Act.
G.

Conclusion

When introducing the term "operator" in the Coal Act, Congress intended that the term
"be as broad as possible." S. Rep. No. 91-411 at 44; Coal Act Legis. Hist. at 170. In keeping
with that Congressional mandate, I conclude that all four entities at issue - Berwind, Kentucky
Berwind, Kyber, and Jesse Branch - qualify as operators. I also conclude that they constitute a
unitary operator. Accordingly, I would reverse the judge's incorrect determinations that Berwind,
Kentucky Berwind, and Jesse Branch were not operators under the Mine Act.

Marc Lincoln Marks, Commissioner

1345

Commissioner Riley, concurring in part and dissenting in part:
I concur in the majority opinion with respect to Parts II.A and II.B, regarding the revised
"operator test." However, I respectfully dissent with respect to Part Il.C, regarding the "unitary
operator" theory.
I do not believe it is necessary to reach the Secretary's alternative theory that Berwind and
its three subsidiaries constitute a "unitary operator" in order to resolve this case. Indeed, nothing
is gained by application of the new interpretation offered by the Secretary. 1 Even the majority
declines to apply it, either as originally briefed or as argued before the Commission. Instead, the
majority applies the legal equivalent of CPR and attempts to resuscitate the unitary operator
concept with a reworked theory of their own. The majority then argues collectively, and in
individual separate opinions, that the Commission is bound to defer to what each of them
presumes the Secretary meant to say but did not. For the following reasons, I decline to join my
colleagues in their novel approach to statutory interpretation.
As a specialized tribunal, created by Congress to "develop a uniform interpretation of the
[Mine Act] Jaw" (Hearing on the Nomination ofMembers of the Federal Mine Safety and Health
Review Commission Before the Senate Comm. on Human Resources, 95th Cong. 1 (1978)
("Nomination Hearing")), the Commission receives cases such as this in a far different posture
than courts of general jurisdiction. Nonetheless, the Commission has frequently reviewed the
Secretary's interpretations of the Mine Act under the two-step formulation in Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984). First, the
Commission, must "try to determine congressional intent, using 'traditional tools of statutory
'.:onstruction. "' NLRB v. United Food & Commercial Workers Union Local 23, 484 U.S. 112,
~ 23 (1987) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987)). If the intent of
'.:ongress is indeed clear, the Commission must give effect to that intent. See Chevron, 467 U.S.
at 842-43. The Commission and the courts call this initial inquiry "Chevron I" analysis. See, e.g.,
Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (1989). If, however, legislation is "silent
or ambiguous with respect to the specific issue" (Chevron, 467 U.S. at 843), the Commission or a
court reviews the agency's interpretation as "'entitled to respect if based upon a reasonably

1

The two corporations found by the majority to constitute a unitary operator, could more
efficiently have been cited under conventional notions of operator status. With respect to Kyber,
while we rejected both the Secretary's proffered "overall control" standard as well as the judge's
"day-to-day-control" interpretation, a substantial majority of the Commission nonetheless found
Kyber liable under our revised "operator test." Thus, we agree with the Secretary that Kyber is
already covered under the Act's more traditional definition of operator. Similarly, Jesse Branch
could simply have been cited as a contractor performing services at a mine, without having to tie
up the resources of the Commission and the courts attempting to pioneer a new, complicated,
and, in view of the majority's modifications, apparently incomplete interpretation of the Act.
1346

defensible construction of the Act."' Kenrich Petrochemical, Inc. v. NLRB, 893 F.2d 1468, 1476
(3rd Cir. 1990), quoting NLRB v. Local 54, Hotel Employees & Restaurant Employees Int 'l
Union, 887 F.2d 28, 29 (3d Cir. 1989). See also United Food, 484 U.S. at 123 ("where 'the
statute is silent or ambiguous,"' the Board's statutory interpretation should be sustained if it is
"rational and consistent") (citations omitted). This same analysis, known as Chevron JI, is applied
to Commission decisions by the court, where they "generally need ask only whether the
[Commission's] interpretation is rational and consistent with the statute, according deference to
reasonably defensible constructions of the Mine Act by the Commission." Simpson v. FMSHRC,
842 F.2d 453, 458 (1988) (internal quotations and citations omitted).
The majority asserts that the meaning of the terms "association" and "organization" as
used in the statutory definitions of the terms "person" and "operator" is open to alternative
interpretations, as reflected in dictionary definitions. Slip op. at 23. The statutory language is not
clear as to whether more than one entity may constitute a single operator. It also appears that
Congress has not " directly spoken to the precise question at issue." Chevron, 467 U.S. at 842.
Thus, in the instant case, the Secretary has met her Chevron I burden, in raising questions about
who is ultimately responsible for safety violations at a mine. Her complex unitary operator
theory, however, only complicates and protracts a case that can be more efficiently resolved on
much simpler grounds.

In any event, I must break from my colleagues in the majority because I do not agree with
their Chevron II analysis, asserting that the Secretary's proffered interpretation must be accorded
deference by this Commission. It is my belief that, notwithstanding voluminous pleadings and the
unprecedented amount ofrehabilitation massaged into the Secretary's unitary operator theory by
the majority, it is neither a rational and consistent nor a reasonably defensible construction
meriting deference under the Chevron model.
To support their Chevron II analysis, the Secretary and the majority rely on cases holding
multiple entities liable as a " single employer" or "single enterprise" under at least three other
statutes, including the National Labor Relations Act ("NLRA"), 29 U.S.C. § 141 et seq.,2 Title
VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.,3 and the Fair Labor

2

Section 2 of the NLRA contains the following definitions:

(1) The term "person" includes one or more individuals
labor organizations, partnerships, associations, [or] corporations ....
(2) The term "employer" includes any person acting as an
agent of an employer, directly or indirectly ....
29

u.s.c. § 152.
3

Section 701 of Title VII provides:

1347

Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.4 S. Br. at 13-16; slip op. at 25-29, 32.
Chevron deference is warranted in this instance, the Secretary argues, because she is doing exactly
what Congress left her the discretion to do under the Mine Act. S. Br. at 10-11.
Reviewing the Secretary's various.submissions in support of the unitary operator theory,
one absolute goal obviously drives her position - that the combination ofBerwind and its three
subsidiaries, operating in concert, are a single entity, a "unitary operator" under the Mine Act.
She frequently and unequivocally reiterates this objective which underlies her statutory
interpretation: "(T]hat Berwind operated the Elmo Mine through Kentucky Berwind, Kyber, and
Jesse Branch, i.e., that Berwind and its subsidiary corporations together constituted one unitary
operator under Section 3(d) of the Act .... " S. PDR at 9. "The Secretary contends in this case
that Berwind and its three subsidiary corporations constituted a unitary 'operator' under the Mine
Act .... " S. Br. at 12. "[W]e would submit that all of them must nonetheless be determined to be
operators ... under this unitary operator theory which we derive from Section 3(f) of the Act."
Oral Arg. Tr. 55. After pouring through every submission of the Secretary, I have been unable to
find any equivocation compromising her position that all four entities must be held accountable as
a single entity known as a unitary operator. The majority concedes this point on page 36 of their
opm1on.
The language of Chevron provides direction that is helpful in deciding the case at hand.
"(T]he meaning of a word must be ascertained in the context of achieving particular objectives."
Chevron, 467 U.S. at 861. If, as the majority asserts, the Commission is obligated to follow

(a) The term "person" includes one or more individuals,
governments, ... labor unions, partnerships, associations, corporations
legal representatives, mutual companies, joint-stock companies, trusts,
[or] unincorporated organizations ....
(b) The term "employer" means a person engaged in an industry
affecting commerce who has fifteen or more employees ... , and any agent
of such a person ....
42 U.S.C. § 2000e.
~ The cases cited by the Secretary apply and interpret section 3(r) of the FLSA which

provides:
"Enterprise" means the related activities performed (either through
unified operation or common control) by any person or persons for
a common business purpose, and includes all such activities whether
performed in one or more establishments or by one or more corporate
or other organizational units ....
29 U.S.C. § 203(r).
1348

Chevron here, and the Secretary's stated objective is to find Berwind and its three subsidiary
corporations· to be a unitary "operator," we must examine, under this Chevron language, whether
the Secretary's interpretation achieves that goal.

The Commission must determine whether to defer to the Secretary's interpretation in the
factual context of this case according to the Secretary's stated reasons for seeking deference. In
this regard, I believe that the majority's declaration, "we consider the Secretary's unitary operator
theory to be a gap-filling measure designed to flesh out the definition of an 'operator' ... entitled
to deference because it is consistent with the purposes and policies of the [Mine] Act" (slip op. at
28) to be not only premature but, in the final analysis - wrong.
As everyone involved with this proceeding is aware, hundreds of pages of pleadings and
evidentiary material from the various parties have accumulated in the voluminous record before us.
The majority apparently believes that the Secretary has satisfied the Chevron II threshold. The
Secretary's briefs, however, provide no comprehensive strategy to apply the unitary operator
approach under the Mine Act to the legal and economic realities of the industry today.
Unfortunately, the sheer volume of the record, including the Secretary's various arguments and
many filings, taken as a whole, have a tendency, not to clarify her position, but to obscure it.
The majority wastes little time and even less space trying to explain the Secretary's
interpretation. They apparently prefer the NLRA and Title VII models, and do not like the FLSA
blueprint. Slip op. at 25-29, 32. Particularly troubling is the lack of analysis of language added
from Lihli Fashions Corp. v. NLRB, a case not mentioned in any submission to the Commission.
Later, we learn that Lihli 's contribution is to turn what is represented as a simple four-part test
into as little as a one-part test if expedience demands it because the record comes up short on facts
in a particular case: "To demonstrate unitary operator status, not every factor need be present,
and no particular factor is controlling." Slip op. at 33.
: Iearly, if the majority had spent more time examining and explaining its test for
determining operator status (three paragraphs and a footnote) (slip op. at 8-9 & n.4) as they did
defending the Secretary's deference arguments (more than seven pages) (slip op. at 25-32), the
additional scrutiny would have forced the majority to come to grips with the dichotomy presented
oy two sentences in consecutive paragraphs of their opinion: "The Secretary argues that pursuant
to her unitary operator theory, the record evidence compels the conclusion that Berwind and its
wholly owned subsidiaries together constituted a single business enterprise ... and therefore
qualifies as a unitary operator under the Mine Act." Slip op. at 35. Followed by: "A majority of
the Commission concludes that Berwind and its three subsidiaries do not qualify as a unitary
operator." Id. What is the import of these two juxtaposed sentences? The Secretary asserts that
something is true and the majority responds that the Secretary is mistaken. Unfortunately, the
point upon which the majority says the Secretary is in error happens to be the underpinning for the
Secretary's request for deference.

1349

When the test was finally applied by the majority (slip op. at 35-39), my colleagues should
have recognized that something was seriously amiss. The best they could accomplish with their ad
hoc theory was to find that only two of the four entities cited by the Secretary qualify as a single
unitary operator, far short of the objective the Secretary argued warranted such a determination. 5
The test, even in its most charitable application to this case by the majority, fails to achieve the
Secretary's stated statutory purpose.
The majority seems to be trying to graft a new prong onto the Chevron test. Their new
prong, or Chevron III, should be called "Deference to Expediency." It is apparently of no
consequence to them that the agency asserting expertise entitling it to deference from the
Commission and by the courts, even with the majority's assistance, has not articulated an
interpretation that accomplishes the objectives the agency set out as its rationale for seeking
deference. They would defer anyway, whether or not the Secretary has presented a reasonable
construction of the Mine Act.
Contrary to the majority's perspective, the purposes and goals of the Mine Act are not
furthered by sympathetically deferring when the Secretary comes before this Commission. The
Secretary has a duty to deliver a workable theory. The majority's inability to find Berwind and its
three subsidiaries to be an integrated unitary operator under the Mine Act as the Secretary argues,
does not advance the Secretary's statutory goals in this case and therefore should doom her
request for deference. As it now stands, the majority decision depresses•the jurisprudential bar so
far that 50% has become a passing grade. This outcome represents neither a rational and
consistent, nor a reasonably defensible, construction worthy of deference under the Chevron
model.
C.

Deficiencies in the Unitary Operator Test

The Secretary cites the standard basis for broad agency authority: "In cases arising under
the Mine Act, it is important to remember that Congress intended the Mine Act to be liberally
interpreted. [As we are certainly aware,] the primary purpose of the Mine Act [is] to protect
mining's most valuable resource - the miner, and [the Secretary reminds us that] Congress
intended that the Act be expansively interpreted to achieve that purpose. It is also important[, we
are told,] to remember that Congress specifically designed the definition of an operator ... to be as
broad as possible .... " S. Br. at 11-12 (citations and internal quotations omitted). The use of this
boilerplate would become problematic at the oral argument.
On October 29, 1996, the Secretary filed with the Commission a statement opposing the
motion of amici curiae to participate in oral argument. So certain was the Secretary that amici
participation would serve no useful purpose that she asserted, "[i]t shquld be noted that under

5

The Secretary never raised the issue before the judge or argued to the Commission that
the Kyber/Jesse Branch relationship alone was a unitary operator, irrespective of the status of the
other cited parties.
1350

Commission Rule 73, 29 C.F.R. § 2700.73, an entity seeking intervention must demonstrate [t)he
reasons why [its] interest is not adequately represented by parties involved in the proceeding. The
moving amici curiae have failed to allege, much less demonstrate, why the captioned respondents
are unable fully and adequately to represent their interests at oral argument. Indeed, as is apparent
from their brief, the moving amici curiae have not even cast the arguments made to the
Commission from a perspective significantly different than that of the captioned respondents .... "
S. Statement in Opp'n to Mot. of Amici Curiae to Participate in Oral Argument at 2 (internal
quotations omitted). While it is clear that the Secretary was referring in this instance to amici for
the Contestants, it is apparent that something offered to this Commission by amici regarding the
unitary operator theory touched a raw nerve.
The comment that provoked that reaction pertained to the judge's second rationale for
rejecting the unitary operator test, that it could "be used to extend jurisdiction without a logical
limit." 18 FMSHRC at 233. This was rather forcefully rejected by the Secretary and glossed over
by the majority, yet at some point the Secretary began to search for some definable limits for the
application of her new theory.
In their brief, the United Mine Workers of America ("UMWA") attempted to "gap-fill" the
Secretary's awkward unitary operator test by adding the qualification of"economic control."
UMWA Br. at 5-9. Their approach would proscribe limits on the test by requiring that something
other than the economic relationships of the parties be examined to address "the practical realities
of trying to further safety and health in the mine industry." Id. at 5. Something in the Secretary's
approach apparently troubled the UMW A and this concern was acknowledged by the Secretary
when she too offered up her variation on this theme of "economic control" at oral argument. Oral
Arg. Tr. 8, 10-15.
Although the Secretary conceded under questioning that "economic involvement" was not
directly mentioned in the statute (Oral Arg. Tr. 10-11 ), her defense must be read as an attempt to
put some stricture into this fledgling theory. It is interesting that while rejecting the judge' s
contention of "jurisdiction without a logical limit" (18 FMSHRC at 233), the Secretary
nevertheless saw a need to more specifically refine the test.
Since the majority only cryptically mentions either "economic control" or "economic
involvement" (slip op. at 34 n. 34), it is difficult to fully appreciate their reasons for rejecting this
issue. What is apparent is that the majority has created the most dangerous kind of test imaginable
- a test that is, simultaneously, too narrow to accomplish the Secretary's stated goals and too
broad, so as to cause concern even to those who would, at first glance, be the most likely
beneficiaries of the test.
Before we can uphold the Secretary's interpretation of the Act as permitting the
designation of two or more related entities as a "unitary operator," we must define precisely the
elements of an appropriate test to determine if related entities constitute a single operator.
According to the Secretary's brief, her approach appears to be based upon the single employer

1351

doctrine developed under the NLRA and Title VII and the common enterprise standard developed
under the FLSA. See S. Br. at 12-16. The Secretary's position in Berwind is that when an
association or other organization functions in an inte1Telated manner for the purpose of extracting
or processing coal or other mineral and controls or supervises a mine through an entity, which is a
component part of such association or organization, the entire association or organization and each
participating part of the association or organization is liable for safety and health violations that
occur at the mine. See id. at 9-10.
Why would that position alarm a labor union? What did they perceive that the majority
does not? Perhaps it is that while the test fails to meet the Secretary's goals of finding Berwind
and her three subsidiaries to be a unitary operator, it is so imprecisely drawn that.they fear, not
without some basis, of being tagged as a unitary operator in a future case. Nonsense? Not if one
carefully reads the definitions of "person" contained in the two statutes on which the majority
models its unitary operator test - the NLRA and Title VII. Slip op. at 25 n.21. Both statutes
include in their definitions of person the terms labor organizations and labor unions. What
guarantee can the majority or the Secretary give any labor organization that they too will not
eventually be swept up in a jurisdictional blanket and be cited as a unitary operator? The answer is
simple- none. Thus, the unitary operator theory, articulated by the majority, is not only illconceived, but it represents a step backward in enforcing the Mine Act.
I regret that my colleagues have not rejected the current request for us to rule on a theory
that is still a work in progress, opting instead to wait for a more appropriate vehicle through which
to reexamine the need for a unitary operator theory. Building upon the preliminary steps taken
here, the Secretary could bring a revised and improved theory before the Commission in another
case. Someday the Secretary may come before us with a case where all of the cited entities
actually fit her own construction of the unitary operator theory. Such a development would bring
the Secretary's agency expertise (the linchpin of Chevron deference) in alignment with her
statutory authority. This, however, is not that case.
Much more appropriate would be to consider such a far reaching proposal through
rulemaking under the Administrative Procedure Act, 5 U.S.C. § 55 et. seq. The advent of a
unitary operator rule is a virtual sea change in the Secretary's approach to enforcement of the Mine
Act, vastly expanding the circle of liability for violations.6 So expansive is the potential impact of
6

The majority summarily dismisses the judge's observations that '" [p ]arts of the industry
have functioned in this way for years and ... the Secretary has never had a policy of citing all
corporate entities involved in the operation of a mine for the production operator's violations."'
Slip op. at 29 (quoting 18 FMSHRC at 233) (emphasis in original). To support their derision of
the judge's accurate appraisal of the posture of this case, the majority cites Sunny Ridge Mining
Co., 19 FMSHRC 254, 267 (Feb.1997), for the principle that the Secretary is always free to
change her mind without notice or warning. Slip op. at 29. Unlike Sunny Ridge, however, this is
not a fact-specific question about whether an inspector's allowing mining to continue in an area
cited for a violation estopped the Secretary from later characterizing the violation as significant
1352

this proposal that it will likely engender widespread reorganization of corporate relationships
throughout the industry. Without a more comprehensive regulatory review by the Secretary to
better delineate the length and breadth of her unitary operator theory as well as give notice to
landowners, holders of mineral rights, operators, contract miners, labor unions, and other
organizations, or interested parties, it is inappropriate and unwise for the Commission to cobble
together an imprecise substitute merely to save face for the Secretary.7

and substantial due to a likelihood of serious injury.
7

The majo1ity acknowiedges "that this Commission has the authority to interpret the
Mine Act" (slip op. at 33), citing examples of where that authority was exercised rather than how
it is that the Commission has authority to "develop a unifo1m and comprehensive interpretation of
the law. Such actions will provide guidance to the Secretary in enforcing the [A]ct and to the
mining industry and miners in appreciating their responsibilities under the law." Nomination
Hearing at l . The Supreme Court reiterated this legislative history in Thunder Basin Coal Co. v.
Reich, 510 U.S. 200 (1994), observing that the Commission "was established as in independentreview body" for the purpose stated in the previous sentence. Id. at 214. The Court took note of
the Commission's authority under 30 U.S.C. § 823(d)(2) to review "novel question[s] of policy,"
and "substantial question[s] oflaw, policy or discretion." Id. at 208 n.9. Merely because the
Commission has such authority, however, does not require, or even make it advisable, for the
Commission to backstop the Secretary's incomplete proposal w ith its own attempt to resolve such
a complicated issue. Especially where, as here, the majority opinion is accompanied by five
individual opinions, for a total of six confusing and contradictory impressions as to what a unitary
operator is, might be, or isn't. In this case, the Secretary is in the best position to consult with
miners, operators, state regulators and others through rulemaking, for the purpose of developing a
complete, fair and workable theory that will survive judicial review.
1353

D.

Due Process

In addition, I also concur in Commissioner Beatty's observations with respect to due
process issues arising from holding any party liable as a "unitary operator" without
Constitutionally-required notice. Slip op. at 44-47.

1354

Commission~r Verheggen, dissenting:

The sole issue in this case is whether the Contestants, either individually or collectively,
qualify as "operators" under the Mine Act. I find that none of the Contestants in these cases can
be considered operators of the Elmo No. 5 Mine and, therefore, I respectfully dissent. 1
A.

Operator Status

The term "operator" is defined under section 3(d) of the Mine Act as "any owner, lessee,
or other person who operates, controls, or supervises a coal or other mine or any independent
contractor performing services or construction at such mine." 30 U.S.C. § 802(d). To be an
operator, a given entity must exhibit a substantial degree of involvement or participation in the
operation of the mine. National Indus. Sand Ass'n v. Marshall, 601F.2d689, 701 (3d Cir. 1979)
("NISA") (designation of persons as operators "requires substantial participation in the running of
the mine"); Old Dominion Power Co. v. Donovan, 772 F.2d 92, 97 (4th Cir. 1985) (adopting
"substantial participation" analysis of NISA). 2 In accord with these cases, in W-P Coal Co., the
Commission found that a lessee who hired a contractor to mine coal could be subject to liability
under the Mine Act as an operator because of its "substantial ... involvement" in the operation of
the mine. 16 FMSHRC 1407, 1411 (July 1994).

In this case, the judge held that to establish that an entity is an operator under the Mine
Act, the Secretary must prove that the entity, "either directly or indirectly, substantially
participated in the operation, control, or supervision of the day-to-day operations of the mine, or
had the authority to do so." 18 FMSHRC at 231. Contestants, in essence, agree with this
approach. K. Br. at 12-16; B. Resp. Br. at 9-11. The Secretary, on the other hand, argues that
the judge' s requirement of "day-to-day" participation in the mine has no basis in the Mine Act or
its iegislative history. Instead, the Secretary claims that to qualify as an operator under section
3(d), " an entity must exercise or have the authority to exercise substantial control over the overall
operation of the mine." S. Br. at 29-37 (emphasis in original).3

1

While I agree in result with my colleagues in the majority that Berwind, Kentucky
Berwind, and Jesse Branch are not "operators" under the Mine Act, I write separately because I
reach my conclusions as to these entities using a different analytical approach, as discussed infra.
2

See also 44 Fed. Reg. 47,746, 47,748 (1979) (MSHA' s proposed independent
contractor rule citing " substantial participation" language).
3

During oral argument, the Secretary amended her "overall control" test to include an
additional requirement that the entity have "an economic involvement at the mine" in order to
qualify as an operator. Oral Arg. Tr. 9. The ostensible purpose for this change was to ensure that
labor organizations do not fall within the definition of "operator" (id. at 10-11 ), although
Contestants point to a number of ways in which labor organizations can be economically involved
in the operation ofa mine. B. Resp. to UMWA/USWA Brs. at 12-13.
1355

Both the judge's and the Secretary's tests fall wide of the mark, as neither have any basis
in the Mine Act. 4 The correct approach, in my view, is not whether there is "overall" or "day-today" control, but rather whether a given entity's participation or involvement in the operation of
the mine is substantial enough to establish that entity as an operator. The proper inquiry is
whether the facts and circumstances of a particular case indicate that an entity is engaged in the
supervision, control, and operation of a mine to a substantial degree so as to render it an operator
under the Mine Act. This requires a fact-specific examination of the record for all indicia of
supervision, control, and operation exercised by a given entity, followed by a careful weighing of
the indicia to determine whether they are sufficiently substantial to establish operator status.
My colleagues adopt a similar approach in which they examine the "totality of the
circumstances," including an entity's involvement in the mine's engineering, financial, production,
personnel, and safety matters. Slip op. at 9-10. I agree that an evaluation of an entity's
involvement in all of these areas is important. Such an evaluation, however, cannot be conducted
in a vacuum - as my colleagues attempt to do - outside the context of the Mine Act and
without reference to the Act's purpose and intent. Congress had a clear and specific reason for
defining "operator" in the Mine Act in terms of supervision and control. It is only through
supervision and control that an operator will be able to create safe and healthful working
conditions at a mine, a responsibility the Mine Act places squarely on the shoulders of the
operator.
Section 2(e) of the Act states that operators "have the primary responsibility to prevent
the existence of (unsafe and unhealthful] conditions and practices in (the Nation's] mines."
30 U.S.C. § 801(e). This responsibility is further described in the Act's legislative history:
Operators have the final responsibilities for affording safe and
healthful workplaces for miners, and therefore, have the
responsibility for developing and enforcing through appropriate
disciplinary measures, effective safety programs that could prevent
employees from engaging in unsafe and unhealthful activity.
S. Rep. No. 95-181, at 18 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977
("Mine Act Legis. Hist."), at 606 (1978). Congress intended that operators bear the ultimate
responsibility under the Mine Act, creating, in essence, a duty on the part of operators to provide

4

It is unclear whether the majority rejects the Secretary's "overall" control requirement,
even though the requirement has no legal basis. First, my colleagues decline to be "constrained"
by the Secretary's test. Slip op. at 9. Later in their opinion, however, they state that it is error
not to consider a party's "overall relationship with the mine." Id. at 16 (emphasis added).

1356

a safe and healthful working environment in compliance with the Act. In fact, so great is this duty
that operators are held strictly liable for violations of the Mine Act. As the Fifth Circuit held:
[I]t is a common regulatory practice to impose a kind of strict
liability on the employer as an incentive for him to take all '
practicable measures to ensure the workers' safety, the idea being
that the employer is in a better position to make specific rules and
to enforce them than the agency is.

Allied Prods. Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir. 1982). This assumes, of course, that
the employer is in a position to take measures to ensure safety, and to ensure that those measures
are enforced. 5 It necessarily follows that designating an entity as an operator, and hence
subjecting that entity to strict liability for violations under the Mine Act, presupposes that such an
entity is in a position to secure a safe and healthful working environment within the mine and to
prevent potential violations from occurring.
Thus, in determining whether a given entity is an operator, those facts in the record which
serve as indications that the entity is operating, controlling, or supervising the mine must be
evaluated in the context of the Mine Act's inextricable link between operating a mine and the
ability to affect health and safety. There must be some nexus between indications of an entity's
control and supervision and that entity's ability to affect health and safety.
Of course, countless entities and individuals can have some effect on health and safety at a
mine including, as Contestants point out, "the miner's spouse who packs too large a lunch causing
the miner to doze off at the controls of his truck." B. Resp. Br. at 28 n.26. However, simply
because an individual or entity may have an effect, however remote, on safety conditions at a mine
does not render it an operator. Rather, as the Secretary acknowledges, "only entities that have
the ability to substantially affect safety and health at a mine" should be considered operators, S.
Reply Br. at 2 (emphasis added) - i.e., only those who exercise some control over health and
safety. This approach is consistent with the underlying purpose and intent of the Mine Act. In
sum, the appropriate inquiry as to whether or not a given entity is an operator depends upon
whether that entity is substantially involved in the operation of the mine, which is a question not
only of the degree of involvement, but also of the extent to which such involvement allows the
entity "to prevent the existence of [unsafe and unhealthful] conditions and practices" at the mine.
30 U.S.C. § 801(e).
The Commission's decision in W-P Coal Co. is illustrative. In that case, the lessee of the
mineral rights, W-P Coal Company ("W-P"), contracted out the operation of the mine to Top Kat

5

See S. Rep No. 95-181, at 18, Mine Act Legis. Hist. at 606 ("this duty places the
primary responsibility for providing a safe and healthful working environment on the operator,
who, of course, ultimately has the authority to operate the mine").
1357

Mining, Inc. ("Top Kat"). 16 FMSHRC at 1407-08. The Commission found that W-P was
substantially involved in the mine's engineering, financial, production, personnel, and safety
affairs. Id. at 1411. As the financial condition of Top Kat, as well as safety conditions at the
mine, began to deteriorate, W-P, which ·had previously operated the mine, became increasingly
involved in the mine's operations. See Top Kat Mining, Inc., 15 FMSHRC 682, 685-86 (Apr.
1993) (ALJ). The Commission found:
W-P prepared the mine plan, calculated mining projections,
prepared and updated mine maps, contacted and visited the mine
frequently to discuss production and other matters, waived certain
fees owed by Top Kat, advanced funds to Top Kat, met with
MSHA personnel regarding mine conditions and enforcement
activity, participated in an inspection of the mine, and even
arranged and attended a meeting ofMSHA and Top Kat to discuss
the increasing number of citations, inspections, and orders.
16 FMSHRC at 1411; see also id. at 1408. In addition, W-P leased equipment to the contractor
and involved itself in the contractor's personnel matters. 15 FMSHRC at 685. W-P's increasing
and, ultimately, substantial involvement in the operation of the mine - particularly substantial
involvement in the safety affairs of the mine, such as their direct dealings with MSHA- provides
a clear illustration of when an owner of mineral rights crosses the line to become a full-fledged
operator under the Mine Act.
1.

Kyber Coal Company

I agree with my colleagues that implicit in the judge's finding that Kyber exercised day-today controi at the mine is a finding that Kyber was substantially involved in the mine' s operation.
Slip op. at 11. I find, however, that this finding is not supported by substantial evidence. 6 To the
contrary, Kyber's involvement in the operation of the mine can only be described as minimal,
beginning with the judge's finding that "AA&W exercised most of the aspects of control and
supervision at the mine." Specifically, the judge found:
AA&W hired, fired, disciplined, trained, supervised, directed and
paid its employees. AA&W developed and submitted all of the
plans required under the Act and instituted all of the measures
necessary to comply with dust and noise sampling programs. For

6

When the Commission reviews factual determinations made by its judges, it applies 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 & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
1358

all practical purposes, AA& W furnished and maintained all of the
equipment, machinery, tools and materials used in the mine, as well
as all of the machinery, equipment and structures for stockpiling
coal on the surface. AA& W participated in all MSHA inspections
and conferences. AA&W decided to contest violations. AA& W
decided how to abate violations. AA&W paid the civil penalties
assessed for violations. Finally, although Kyber could request that
AA&W increase production, AA&W ultimately determined
whether it would comply with such a request. The debate ... is
whether the Contestants' involvement in what was left was
sufficient to make them operators.
18 FMSHRC at 212-213 (citations omitted).
Thus, in stark contrast to the lessee in W-P Coal, Kyber had no involvement in AA&W's
personnel matters, leased no equipment to AA&W, provided no financing to AA&W, and played
no role in health and safety affairs at the mine. With respect to three of the five areas the majority
claims to be relevant in determining operator status - personnel, financial, and health and safety
matters - Kyber had no involvement whatsoever. Moreover, the judge found that AA&W
retained sufficient autonomy over production such that Kyber's involvement did not amount to an
indication that Kyber was an operator. Id. at 240. Finally, engineering services, map drafting,
spad setting, and surveying were all provided by Jesse Branch. Id. at 241. The judge's remaining
and sole basis for finding that Kyber was an operator, a basis affirmed by the majority, was the
fact that Kyber retained "bottom line" authority for determining the direction of mining. Id. at
238.
Control over the direction of mining may be one indication of an entity's involvement in
·.ne operation of a mine. However, Kyber's control of the direction of mining, by means of
exercising its contractual right to reject AA&W's request to deviate from the mining projections,
was in fact limited. The judge found that:
The Kyber-AA&W relationship was such that AA&W had
considerable discretion to deviate from the projections for reasons
of safety. Stump testified that he could depart from the projections
if he encountered "an emergency." Akers essentially agreed that
although AA&W had an obligation to consult with Kyber, Kyber
never challenged AA&W's opinion that mining should be
discontinued because of safety concerns such as poor roof. Akers'
testimony in this regard was supported by Looney.
18 FMSHRC at 238 (citations omitted). Kyber could not reject AA&W's request to mine less
than the full extent of the mine projections if"it [was] unsafe to mine those areas." JSF 187

1359

(emphasis added). 7 While there is ample evidence in the record on this limitation to Kyber's
control, both the judge and my colleagues fail to consider its relevance in the context of
determining the degree ofKyber's involvement in the health and safety affairs of the mine, and
w~ether any such involvement could have enabled Kyber "to prevent the existence of [unsafe and
unhealthful] conditions and practices" at the mine. 30 U.S.C. § 80l(e).
The majority asserts that "Kyber's ultimate control over the direction of mining8 . . . had a
direct and significant bearing on the conditions encountered by miners," and that, consequently,
the company's actions "had a direct effect on the health and safety of those miners." Slip op. at
14. Any number of factors, however, can have an effect on the health and safety of miners, such
as barometric pressure or whether the seam being mined is gassy. The quality of parts used in
mine machinery can have an enormous effect on mine safety. Even "the miner's spouse who
packs too large a lunch causing the miner to doze off at the controls of his truck" (B. Resp. Br. at
28 n.26) has an effect on safety. But an entity's effect on safety is not necessarily relevant to
determining whether the entity is an operator under the Mine Act. The manufacturer of parts for
a mine's machinery certainly would not be considered an operator, despite the potentially
enormous effect of the quality of its work on mine safety. Instead, as W-P Coal clearly
demonstrates, what is relevant is an entity's involvement in health and safety affairs of a mine.
Here, it is undisputed that Kyber played no role in such matters as pre-shift examinations, MSHA
inspections, decisions to contest Mine Act violations, health and safety training, and Mine Act
record keeping. Cf W-P Coal, 16 FMSHRC at 1411 (meeting with MSHA personnel and
participation in an inspection considered involvement in the mine's safety affairs). The majority
fails to grasp the significance ofthis important distinction between effect on health and safety and
substantial involvement in the management of health and safety affairs.
Because Kyber could not overrule AA&W's deviations from the mine plan when they
involved matters of safety and health, Kyber's control over the direction of mining can not rise to
the ievel of substantial involvement for the purpose of determining whether Kyber is an operator

7

As the judge's find ing and the stipulations indicate, Kyber did not have exclusive control
over tne direction of mining, unlike the independent contractor in Otis Elevator Co., which did
have "'exclusive control over the safety of the mine elevators. "' See slip op. at 14 (citing 11
FMSHRC at 1902).
8

The majority overstates the extent of Kyber's authority because, as a practical matter,
control of the direction of mining was jointly exercised by Kyber and AA& W. As the parties
stipulated, " [p]rior to initiating mining operations, {AA&W} and [Kyber} developed initial mining
projections for mining at the Elmo mine. [AA&W} and [Kyber} jointly developed subsequent
mining projections on an 'as needed' basis during the course of mining." JSF 181 (emphasis
added). The parties also stipulated that"[ o ]nee projections were established and agreed upon by
both [AA&W] and [Kyber}, any modifications to those projections we made only uponjoint
consultation and determination of both [AA&W} and [Kyber}." JSF 179 (emphasis added).
1360

under the Mine Act. The nexus between Kyber's control in this regard and the company's ability
to affect health and safety conditions at the mine through its control is too remote to support the
judge's finding of liability. 18 FMSHRC at 238. fu the absence of additional indications of
Kyber's involvement in the operation of the mine, I find that the judge's determination that Kyber
was an operator on this basis alone (see id. at 238-40) is not supported by substantial evidence.
Accordingly, I would reverse his finding. 9

In an effort to salvage the judge's finding of Kyber's substantial involvement in the
operation of the mine, my colleagues rely on additional evidence rejected by the judge in his
decision. 1 First, they adopt the Secretary's argument, rejected by the judge, that Kyber's
contract with AA& W gave Kyber at least the authority to approve and enforce the mine plan for
the Elmo No. 5 mine, whi.ch included, among other things, the ventilation and roof control plans
which affect the safety and health of miners. Slip op. at 12; S. Resp. Br. 22-23, 33. Even
though Kyber never exercised its authority with respect to any mine plan, the majority appears to
believe that it is the mere authority to control operations, and not the actual exercise of the
authority, that is dispositive.

°

The Commission, however, looks to the actual relationship between entities, rather than a
contract between them, in order to determine operator status. Bulk Transp. Servs., Inc., 13
FMSHRC 1354, 1358 n.2 (Sept. 1991) ("Our focus is on the actual relationships between the
parties, and is not confined by the terms of their contracts .... Moreover, the determination of
whether a paity is properly designated to be within the scope of section 3(d) of the Act is not
based upon the existence of a contract, nor the terms ofsuch a contract," emphasis added). 11 The
9

My colleagues agree with the judge that "Kyber retained more control over the direction

of mining than the typical mine owner or lessee" (slip op. at 11), but neither they nor the judge
~ite any evidence in the record to support this finding. If anything, the record indicates that the
agreement between Kyber and AA& W was typical for the industry. Tr. 573, 579; 18 FMSHRC at
230. fu fact, the contract was based on contracts in general use throughout the industry. 17
FMSHRC at 690; slip op. at 3 n. l. Even assuming argu,endo that Kyber' s control of the direction
of mining was absolute, it is uniikely Kyber could be considered an operator on this basis alone
since, as the majority puts it, " no particuiar factor will be controlling" in determining whether an
entity is an operator. Slip op. at 10.
·

10

In so doing, my colleagues abandon the substantial evidence test, rejecting specific

findings of the judge without pointing to a single fact the "fairly detracts" from the weight of
evidence that supports the judge' s finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan.
1997).
11

In a bizarre twist, the majority cites Bulk Transportation in support of its assertion that
the mere terms ofKyber's contract is indicative of the company's status. Slip op. at 12-13
(stating that Kyber's "contractual authority over the mine plan may be considered by the
Commission as evidence of the actual relationship between Kyber and AA&W"). Bulk
1361

Secretary's assertion that Kyber's contract with AA&W gave Kyber, through its never-exercised
authority over mine plans, the authority to select and approve the ventilation and roof control
plans (S. Resp. Br. at 22-23) seems disingenuous in light of the fact that the Secretary specifically
stipulated that AA&W was responsible for developing, implementing, and submitting both the
ventilation and roof control plans. JSF 168, 175. Indeed, AA&W developed, implemented, and
submitted all plans that are required under the Mine Act. JSF 115. Because "[t)here is no basis
for finding Kyber ... had anything to do with mining plans at the Elmo No. 5 Mine" (18
FMSHRC at 237 n.5), my colleagues err in finding Kyber's contract with AA&W to be an
indication of Kyber's operator status.
My colleagues also assert that Kyber's status as an operator "is further supported by other
evidence of Kyber's substantial involvement in decisions concerning the ways in which mining
was conducted and the quality and quantity of coal produced at the mine." Slip op. at 12. Yet,
the judge rejected any claim that Kyber was substantially involved in production at the Elmo No.
5 Mine. 18 FMSHRC at 240. Among other things, the judge rejected the argument that
AA& W's responses to Kyber's requests for additional hours of operation were an indication of
Kyber's operator status, crediting the testimony of AA&W employees that AA&W did not always
comply with those requests. Id. According to the judge,"[c]omplying with Kyber's requests was
clearly in AA&W's self interest (Tr. 291-292), and AA&W retained its autonomy to decide
whether or not to accede." Id. In addition, it is undisputed that if Kyber requested additional
coal production to meet demand, "AA&W ultimately determined whether it would comply with
[Kyber's] request." JSF 105. Although the contract did contain a minimum production
requirement, it had no effe.c t on daily production because AA& W produced coal far in excess of
the required amount. 18 FMSHRC at 240. Thus, to the extent Kyber had any influence over
production at the mine, it never rose to the level of control, since AA&W ultimately decided when
and how much coal to produce. 12

Transportation, however, directly contradicts the majority' s position.
12

As for the manner of mining - or the "ways in which mining was conducted," to use
the majority's phrase - the Secretary argues that a single instance involving Kyber's objection to
AA&W's proposal to use a continuous mining machine is evidence ofKyber's control over the
manner of mining (S. Resp. Br. at 31-32), notwithstanding the parties' stipulation that, except on
very limited occasions, AA&W furnished and maintained all equipment, machinery, and materials
at the mine. JSF 136. The judge properly rejected the incident as evidence of Kyber's substantial
control of the mine. 17 FMSHRC at 710. The majority also claims Kyber was substantially
involved in the "ways in which mining was conducted" (slip op. at 12), yet they cite no evidence
in the record to support this assertion. Indeed, the judge specifically found that "AA& W
determined the manner in which coal was mined." 17 FMSHRC at 695.
1362

Oddly, the only evidence cited by the majority ofKyber's actual involvement in
production is an incident involving blasting at the neighboring Corvette mine. Slip op. at 12-13 &
n.11. When blasting at the nearby Corvette mine apparently caused a roof fall at the Elmo No. 5
Mine, Kentucky Berwind intervened to resolve the problem. 13 I find it peculiar that the majority
would cite this incident as an example of Kyber's involvement in production since it was
Kentucky Berwind, not Kyber, that intervened between AA&W and the operator of the Corvette
mine. 17 FMSHRC at 700. The extent ofKyber's involvement was notifying Kentucky Berwind
of the problem and suggesting the solution that Corvette should move its blasting operations. Id.
In fact, not even the Secretary has argued in this case that this incident is evidence of Kyber 's
control of the mine. Rather, the Secretary only argued this incident demonstrated Kentucky
Berwind's involvement, an argument rejected by the judge. 14

13

Kentucky Berwind leased separate coal reserves in a coal seam located above the Elmo
No. 5 Mine to an unrelated company, which then contracted with Corvette Mining Company for
the operation of a surface mine to extract the coal. 17 FMSHRC at 699. On April 8, 1993, a
roof fall occurred at the Elmo No. 5 Mine, which was apparently caused by blasting at the
Corvette mine. Id. at 700. AA&W notified Kyber of the roof fall, which in turn notified
Kentucky Berwind. Id. Following additional roof fall problems caused by blasting at the
Corvette mine, Kentucky Berwind officials visited the Elmo No. 5 Mine to examine affected areas
of the roof. Id. On April 12, 1993, Steve Dale, the chief mine inspector and land manager of
Kentucky Berwind, and two other' Kentucky Berwind mine inspectors visited the two mines and
met with a Corvette official, AA&W vice president Jim Akers, and a representative of the
Kentucky Division of Surface Mine Reclamation Enforcement. Id. Kyber president Jimmy
Walker suggested that, in order to alleviate the problem, Corvette should move its blasting
operations 500 feet away from the location it had been using. Id.; JSF 23, 301. Dale endorsed
this solution and showed Corvette where its operations should be moved. 17 FMSHRC at 700;
JSF 301.
14

The judge found:
There is no indication that Kentucky Berwind ordered AA&W to
change anything with regard to its daily operations as a result of the
Corvette incident. Moreover, it was only natural that Kentucky
Berwind, as owner of the coal reserves mined by both AA&W and
Corvette, would have an interest in trying to assist both operators
so that they did not interfere with one anothers' operations. That
interest and Kentucky Berwind's resulting role in the incident do
not equate to statutory control and supervision.

17 FMSHRC at 715. The same findings hold true for Kyber as well.
1363

The majority's reliance on this incident as evidence of operator status is even more
peculiar given the fact that my co lleagues, elsewhere in their opinion, find that Kentucky
Berwind's involvement in the incident - which was far more significant than Kyber's - was
insufficient to establish operator status. Slip op. at 20. Indeed, it defies my comprehension how
this incident suggests Kyber was "substantial[ly] involv[ed] in decisions concerning the ways in
which mining was conducted and the quality and quantity of coal produced at the mine." Id. at
12.
My colleagues also rely on Kyber's payment of the initial mine development costs as
evidence of Kyber's substantial involvement in the mine. Id. at 15. Again, the judge properly
rejected Kyber's involvement in the development of the mine as a basis for finding the company
an operator, citing it as "irrelevant" to the question ofKyber's operator status since development
of the mine occurred before the mine opened and AA& W became the on-site operator. 17
FMSHRC at 708. As the judge correctly stated, "(t]he question is whether the Contestants
actually were operators of the mine on November 30, 1993," the date the citations were issued.
Id. My colleagues also cite as evidence of Kyber's involvement in the mine the fact that Kyber
paid Jesse Branch for map drafting and surveying services. Slip op. at 15. What they neglect to
mention, however, is that AA& W first paid Kyber ten cents for each ton o f coal mined for those
very services. JSF 151. 15
In shmi, the evidence of Kyber's involvement in the mine amounts to, at most, limited
control over the direction of mining, consistent with Kyber's status as lessee, and its never-used
authority to approve the mine plan. This hardly makes Kyber an operator. Taken as a whole,
Kyber's control or supervision of the Elmo No. 5 mine, limited as it was, certainly did not rise to
the level of involvement of the lessee in W-P Coal, which had extensive involvement in financial,
production, personnel, and safety and health matters at the mine. With virtually no involvement in
any of these areas, it can hardly be said that Kyber's involvement in the mine was substantial, let
aione that it was substantially involved in safety and health affairs at the mine. Kyber' s
involvement in the mine, which did not include any involvement in the mine's safety and health
affairs, is simply too remote to support a finding that would impose strict liability upon the
company under the Mine Act. Accordingly, I would reverse the judge's finding that Kyber was an
ooerator of the Elmo No. 5 Mine.
2.

Jesse Branch

I find that substantial evidence supports the judge's conclusion that Jesse Branch was not
an operator. 18 FMSHRC at 242-43. The company's involvement in the operation of the mine
was limited to engineering services, which consisted primarily of drafting maps, surveying, setting

My colleagues also suggest that ~yber's role in selecting a safe operator for the mine is
somehow indicative ofKyber's status as an opera.tor. Slip op at 14 n.12. It is difficult to
conceive that a lessee's judicious selection of a safe operator - as opposed to, say, picking a
name out of a hat - thereby imbues the lessee with yet another indicia of ownership status.
15

1364

spads, and inspecting surface drainage ponds. 17 FMSHRC at 711-712. Unlike the lessee in W-P
Coal, Jesse Branch had no additional involvement whatsoever in the mine's financial, production,
personnel, or safety matters. Cf W-P Coal, 16 FMSHRC at 1407.
Simply because Jesse Branch's role may have been "critical" (S. Br. at 53) or "important"
(slip op. at 17) to the operation of the mine does not mean its role was substantial for purposes of
determining whether the company was an operator in these proceedings. As the judge correctly
noted, most on-site operators like AA& W lack the capacity to perform such engineering functions
as surveying and spad setting, and frequently contract for such services. 17 FMSHRC at 710-12.
By agreeing to provide these services, Jesse Branch did not thereby assume any control over the
operation of the mine. Indeed, the judge found that while Jesse Branch participated in drafting
and mapping the mine projections, there was no indication that Jesse Branch "denied AA&W
autonomy of decision-making within the confines of the projections or reserved for itself the
authority for such decision-making." 18 FMSHRC at 242. 16 As such, I would affirm the judge's
conclusion that Jesse Branch was not an operator of the mine. 17
3.

Kentucky Berwind

I find that the judge's conclusion that Kentucky Berwind was not an operator because its
level of involvement in the mine did not rise to the level of statutory control is supported by
substantial evidence. 17 FMSHRC at 715. Kentucky Berwind had no involvement in the mine's
engineering, personnel, or safety matters, nor did it have any financial dealings with AA&W. 18
FMSHRC at 236. To the extent Kentucky Berwind retained the authority to control production
at the mine through its lease agreement, either by means of imposing lost coal penalties,
participating in decisions concerning mining direction, or otherwise, there is little or no evidence
such authority was ever exercised. Again, the proper focus is upon the actual relationship
oetween Kentucky Berwind and AA&W, rather than the terms of the contract between Kentucky
3 e1wind and Kyber, in determining operator status. See Bulk Transp., 13 FMSHRC at 1358 n.2.
in that regard, the judge found that Kentucky Berwind's actions with respect to the mine were
consistent with, and nothing more than, the conduct one would expect of an owner of the mineral
rights protecting its interests. 18 FMSHRC at 235-36.

16

The judge properly declined to draw any inference of operator status from the
reiationship between Kyber and Jesse Branch. 17 FMSHRC at 712. Any such relationship,
whether through interlocking officers or shared office space, has no bearing as to whether Jesse
Branch, standing alone, was an operator of the mine.
17

I agree with my colleagues in the majority that the Secretary failed to preserve on
appeal her argument that Jesse Branch could still be found to be an operator of the mine on the
alternative ground that it was an independent contractor. Slip op. at 16 n.16. I note, however,
that the Commission has never held that an independent contractor is liable for violations that
arise from conduct unrelated to its activities at the mine.
1365

I agree with my colleagues' assessment that "[t]he Secretary's argument that Kentucky
Berwind is an operator appears to be based primarily on the authority it possessed as an owner of
mineral rights at the Elmo No. 5 Mine." Slip. op at 18. Yet during oral argument, the Secretary
asserted that mere ownership of a mineral right was not sufficient to establish operator status.
Oral Arg. Tr. 11. Unless the Secretary is prepared to declare all owners or lessors of mineral
rights as operators - which she apparently is not - Kentucky Berwind cannot be considered an
operator of the mine. Accordingly, I would affirm the judge's decision.
4.

Berwind

The judge held that Berwind was not an operator, based on his finding that Berwind had
"virtually nothing" to do with the operation of the mine. 18 FMSHRC at 234. I find this
conclusion amply supported by substantial evidence. There is no evidence that Berwind was
involved in the mine's engineering, financial, production, personnel, or health and safety affairs.
Cf W-P Coal, 16 FMSHRC at 1407. While Berwind provided the capital necessary for its
subsidiaries to operate (18 FMSHRC at 234), there is no evidence that this financing extended to
the operator of the mine, AA&W. Moreover, the judge found that contacts between Berwind and
AA&W, such as they were, were "a long way" from substantial participation in the operation of
the mine. 17 FMSHRC at 715-16. Indeed, the Secretary concedes that Berwind did not have any
direct control of the mine, but that its control was derived from its relationship with its
subsidiaries, which in tum controlled the operation of the mine. S. Br. at 6. Because I find that
none of those subsidiaries were substantially involved in the operation of the mine, it necessarily
follows that neither was Berwind. I would therefore affirm the judge's finding that Berwind was
not an operator of the Elmo No. 5 Mine.

B.

Unitary Operator Theoz:y

In W-P Coal, the Secretary attempted to hold the operator liable under a "co-operator"
theory of liability. 16 FMSHRC at 1409. After finding that "W-P was sufficiently involved with
the mine to support the Secretary's decision to proceed against [the company]," the Commission
wisely rejected the Secretary's alternative theory. Id. at 1411. First, the Commission noted that
the term "co-operator" "does not appear in the statute." Id. The Commission also stated:
"existing case law adequately addresses liability issues where owner-operators and independent
contractors are involved." Id.
I find both of these statements still true today with respect to the majority's effort to use
this case to create a new form of liability under the Mine Act, unitary operator liability. I begin
my analysis of this question by noting the Supreme Court's recent reaffirmation of the "general
principle of corporate law deeply 'ingrained in our economic and legal systems' that a parent
corporation (so-called because of control through ownership of another corporation's stock) is
not liable for the acts of its subsidiaries." United States v. Bestfoods, 524 U.S. 51, 61 (1998)

1366

(citations omitted). 18 The Court stated that "it is hombook law that 'the exercise of the "control"
which stock ownership gives to the stockholders ... will not create liability beyond the assets of
the subsidiary."' Id. at 61-62 (citations omitted). The "hombook law" to which the Court was
referring is, of course, state law: "corporations being creatures of state law, that law generally
governs their affairs." 18 Am. Jur. 2d Corporations§ 17, at 812 (1985).
The majority's new unitary theory is an exception to the general rule of the separate
existence of corporate entities, and is thus an attempt to modify the general principles of state
corporate law so forcefully reiterated in Bestfoods. In their rush to rewrite corporate law,
however, the majority has lost sight of the fundamental principle that "in deciding if federal law
pre-empts state law," federal courts '"start with the assumption that the historic police powers of
the States [are] not to be superseded by the Federal Act unless that was the clear and manifest
purpose of Congress.'" Milwaukee v. Illinois, 45 1 U.S. 304, 316 (1981). Similarly, in Bestfoods,
the Court stated that "nothing in CERCLA purports to reject this bedrock principle [of the
separate existence of corporate entities], and against this venerable common-law backdrop, the
congressional silence is audible." 524 U.S. at 62. The Court went on to observe:
CERCLA is thus like many another congressional enactment in
giving no indication "that the entire corpus of state corporation law
is to be rep laced simply because a plaintiffs cause of action is based
upon a federal statute," and the failure ofthe statute to speak to a
matter as fandamental as the liability implications ofcorporate
ownership demands application ofthe rule that "[i}n order to
abrogate a common-law principle, the statute must speak directly
to the question addressed by the common law."

Id. at 63 (citations omitted, emphasis added). 19 Similarly, in United States v. Texas, the Court
noted the "longstanding ... principle that '(s]tatutes which invade the common law ... are to be
read with a presumption favoring the retention of long-established and familiar principles, except

18

At issue in Bestfoods was the potential liability under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S .C. § 9601 et seq.
("CERCLA") of a parent corporation as an operator for the clean-up of a hazardous waste site
owned or operated by one of its subsidiaries. 524 U.S. at 60.
19

The majority attempts to distinguish Bestfoods on the grounds that the case arose under
CERCLA. Slip op. at 30 n.29. The rule reiterated by the Court in Bestfoods is, however, one of
general app licability; as the Supreme Court cases I cite demonstrate. See also Tri-State Steel
Constr. Co. v. Herman, 164 F.3d 973, 979 (6th Cir. 1999) (citing Bestfoods on this point in
holding that a company's eligibility for an award of fees under the Equal Access to Justice Act, 5
U.S.C . § 504, must not be determined on the basis of aggregating the company's net worth with
that of its parent corporation).
1367

when a statutory purpose to the contrary is evident."' 507 U.S. 529, 534 (1993) (citations
omitted).
The majority asserts that its new unitary operator theory is "consistent with well
established" and "settled" "principles of corporation law." Slip op. at 30 and n.29. Yet I find that
in their opinion, all they do is mention a few principles - piercing the corporate veil (id. at 30-31
& n.29), the "identity rule" (id. at 31 ), and alter ego theory (id. at 31-32) - without any
explanation of why these principles apply to or support their theory. In fact, I am unable to divine
what, if any, basis their theory has in traditional corporate law. The cryptic nature of the
majority's opinion on this point may be due to the fact that the principles they mention simply do
not apply to this case in which the meaning of a federal statute is at issue.
For example, the majority mentions piercing the corporate veil. In fact, they appear to
embrace this particular principle when they state that their theory is "consistent with well
established principles of corporate law," then quote the follow ing passage from an Eighth Circuit
case in support of this statement: "Corporate law recognizes situations in which it is appropriate
to 'pierce the veil' of separate affiliates." Id. at 30-31 (quoting Package Serv. Co. v. NLRB, 113
F.3d at 847). Yet the Secretary has expressly disclaimed any intent to pierce the corporate veil in
this case. S. Br. at 26 n.12. Moreover, piercing the corporate veil has traditionally been used
where recognizing the boundaries around corporate entities "would work fraud or injustice."
Taylor v. Standard Gas & Elec. Co., 306 U.S. 30 7, 322 (1939). As the Supreme Court stated in
Bestfoods, "the corporate veil may be pierced ... when . .. the corporate form would otherwise
be misused to accomplish certain wrongful purposes, most notably fraud." 524 U.S. at 62; see
also 18 Am. Jur. 2d Corporations§ 58, at 868-69 ("It has been said that any court must start
from the general rule that the corporate entity should be recognized and upheld, unless specific,
unusual circumstances call for an exception; these circumstances arise where the corporation is
used principally as an intermediary to perpetrate fraud or promote injustice."). Here, the record
contains not even a hint that Berwind or any of its subsidiaries organized themseives the way they
did for fraudulent or improper purposes. 20
The majority also mentions alter ego theory and the identity rule. These theories,
however, are premised on a degree of "unity of interest and ownership" so great "that the
individuality or separateness of the two corporations has ceased," or "that the independence of the
corporation has in effect ceased or had never begun." 18 Am. Jur. 2d Corporations§ 56, at 86162. I do not find that the facts of this case can be twisted into any such scenario. Indeed, if the

°

2

For similar reasons, I find several cases cited by the majority irrelevant to this
proceeding. NLRB v. Deena Artware, for example, involved a corporate actor guilty of "evading
... back pay obligation[s]." 361 U.S. at 401 (see slip op. at 28). Similarly, the corporate actor in
Package Service Co. v. NLRB was guilty of buying another company, Allegheny Graphics, Inc.,
with the intent of "making Graphics a non-union employer." 113 F.3d at 848. The court also
noted that "key executives of PSC personally implemented that strategy, committing in the
process the unfai r labor practices" at issue in the case. Id. (see slip op. at 30-31).
1368

affairs ofBerwind and its subsidiaries had been so intertwined, and particularly if the safety affairs
of the Elmo No. 5 Mine had been managed at all levels of the Berwind corporate structure, then
the majority would not have to resort to their ill-advised theory to find the companies liable.
More to the point, however, is that despite the great emphasis the majority places on alter ego
theory, their four-part test hardly can be said to bear any resemblance to that theory. See slip op.
at 33.
What I see the majority doing is trying to camouflage the weaknesses of their rationale
behind the talismanic invocation of a few principles of corporate law, and cases construing those
principles, with no explanation of how the principles or cases apply to their new theory.
Incantation, however, is no substitute for reasoned analysis.
Regarding whether the Mine Act can be interpreted to allow the Secretary to cite many
operators as one "unitary operator," the majority concludes "that the statutory language on the
question whether more than one entity may constitute a single operator is far from clear, and that
Congress has not 'directly spoken to the precise question at issue."' Id. at 25 (quoting Chevron,
467 U.S. at 842).21 My colleagues then defer to the Secretary's interpretation of the Mine Act
that boldly circumvents the common law of corporations by creating out of whole cloth
"operators" under the Mine Act that exist only for the purpose of broadening the Secretary's
prosecutorial power.
I reject the majority's decision to defer to the Secretary on this question. The unitary
operator liability created by the majority is in direct conflict with the common law of corporations
by grafting onto that body of law a new form of corporate organization: a super-corporation
consisting of any number of separate entities joined to create a larger whole. Nowhere in the
common law of corporations is there such an entity. In the absence of any provision in the Mine
Act that directly and unequivocally abrogates the common law principles of corporate structure,
the majority' s ill-advised attempt to rewrite the common law must fail. Their new theory must
have a clear and unequivocal statutory basis -which it most clearly does not have. Bestfoods,
524 U.S. at 62-63.
Indeed, the Secretary's attempts to justify her new theory are unavailing. No matter how
plausibie or reasonable her arguments might seem at first blush (and I do not believe they are the
least bit plausible), under Bestfoods, deference does not even arise because of the even more
fundamental principle that any statutory abrogation of a common law principle must be explicitly,
directly, and unequivocally set forth on the statute's face. Id. Yet here, as the majority concedes,
all we have is an interpretive gloss. The majority has formulated a rule of liability, in concert with
the Secretary, that is at odds with the common law of corporations - and controlling Supreme
Court precedent under which only Congress can create such liability.

21

For the reasons stated in my dissent in Cyprus Cumberland Resources Corp., 21
FMSHRC 722, 737-38 (July 1999), I find my colleagues' reliance on Chevron inappropriate and
misplaced.
1369

I would hasten to add that I am not in favor of blind fealty to corporate forms. In the
event a corp<;>ration attempts to shield itself behind a sham corporate structure, the Secretary
could pierce the corporate veil. Indeed, I am at a loss as to why the Secretary has sought to
establish unitary operator liability under the Mine Act. She has advanced few, if any, reasons why
this Commission should take the extraordinary step of casting aside the common Jaw in favor of
her interpretation of section 3 of the Act - notwithstanding the fact that any such arguments
would probably either be unavailing because at odds with Bestfoods or better addressed under the
existing Jaw of operator status and piercing the corporate veil.
But even assuming arguendo that the majority's acceptance of unitary theory was not at
odds with the bedrock principles reaffirmed in Bestfoods, their decision is still a house of cards
that fails to hold up to any degree of scrutiny. Although the majority concedes that the statutes
on which it relies - the NLRA and Title VII - are "concerned with regulation of employment
relations" (slip op. at 26 n.22), 22 they nevertheless forge ahead. But at issue here is a term "operator" - that has nothing to do with employment relations. The majority confuses appl es
with oranges, despite the fact that other more analogous statutes include the term "operator"
rather than "employer," including CERCLA, and the Surface Mining Control and Reclamation
Act, 30 U.S.C. § 1201 et seq. The majority cites several Mine Act cases in which the
Commission has turned to the NLRA and Title VII for guidance (slip op. at 26), yet all the cases
they cite involve employment relations, either in the context of Mine Act discrimination or
compensation. These cases are thus singularly irrelevant to the questions posed in this case.
I am also concerned that, in applying unitary theory, the majority has essentially passed
upon a question that was never before the Administrative Law Judge. In this case, the Secretary
sought to hold liable a unitary operator consisting of Berwind, Kentucky Berwind, Kyber, and
Jesse Branch. The judge rejected this attempt. He never considered whether any other
permutations of these four entities might be a unitary operator. Yet the majority nevertheless
does just that when it finds that Kyber and Jesse Branch are a unitary operator. They do so
without offering any justification whatsoever for passing on a question on which the judge had no
opportunity to pass. Beech Fork Processing, Inc., 14 FMSHRC 1316, 1319-21 (Aug. 1992).

22

The majority also acknowledges that "[t]he Commission has long recognized that 'the
Mine Act is not an employment statute. The Act's concerns are the health and the safety of the
nation's miners."' Slip op. at 33 n.33 (quoting UMWA on behalfof Rowe v. Peabody Coal Co., 7
FMSHRC at 1364).
1370

C.

Conclusion

My greatest concern in dissent is that I see the majority's decision as a setback to the
orderly administration of the Mine Act. First, I find their treatment of operator liability full of
confusion and contradiction. They arrive at a rule which appears almost metaphysical under
which we must not focus on "separate elements" of an operator's control of a mine, but must
consider "the totality of circumstances, that is, [an operator's) overall relationship with (a) mine"
(slip op. at 16, emphasis added) - which is something presumably greater than the sum of
various indicia of control which may be contained in a particular record. I find this rule
unworkable, if not fanciful.
Second, the majority's new unitary operator theory sprung from a Secretarial position that
appeared to change at every juncture. Indeed, the Secretary was offering substantive refinements
to her theory even as late as the oral argument before the Commission. Oral Arg. Tr. 9; see supra
note 3 of my opinion. The majority nevertheless has deferred to the Secretary's moving target of
a theory in principle, and has proceeded to fill in the various gaps on an ad hoc basis. Yet even
then, they stumble. They have set forth their new unitary theory in the most fractured opinion I
have encountered in my tenure as a Commissioner, and are then unable to come to an effective
application of the theory, not only because of the notice problems recognized by Commissioner
Beatty (with which I agree in principle), but also because no majority of Commissioners is able to
decide which pemmtation of defendants to hold liable under the theory. 23 Far from contributing
to the development of"a uniform and comprehensive interpretation of the [Mine Act] ... [to]
provide guidance to the Secretary in enforcing the act and to the mining industry and miners in
appreciating their responsibilities under the law," Nomination Hearing Before the Senate
Committee on Human Resources, 95th Cong. at 1 (1978), I believe that the majority's decision
sows the seeds of confusion. I believe that in this case, the wheels ofjustice have now, after six
years of litigation, become hopeiessly mired in a morass of legal mumbo jumbo.

23

The Chai1man and Commissioner Beatty see Kyber/Jesse Branch as a unitary operator,
while Commissioner Marks sees Berwind/Kentueky Berwind/Kyber/Jesse Branch as a unitary
operator. Ultimately, a majority finds Kyber/Jesse Branch a "unitary operator" in part because
"the control exercised by [the two companies] over health and safety at the Elmo No. 5 Mine was
centralized ." Slip op. at 38. Yet none of the evidence they cite in support of this statement has
anything to do with ~ea l th and safety, but rather all relates to the direction and nature of mining,
preparation of mine maps, and surveying. Id. Moreover, none of these activities were
"centralized within the two companies." Id. As the maj ority acknowledges, Kyber made all
decisions with respect to the direction and nature of mining (id.), while Jesse Branch performed
all engineering services (id. at 17, 38). Indeed, Kyber paid Jesse Branch for these services. Id. at
15.

1371

For the foregoing reasons, I would thus reverse the judge's finding that Kyber is an
operator, and affinn in result his rejection of the Secretary's unitary operator theory.

Theodore F. Verheggen, Commission

1372

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Robert I. Cusick, Esq.
Marco M. Rajkovich, Jr., Esq.
Wyatt, Tarrant & Combs
1700 Lexington Financial Center
Lexington, KY 40507
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Crowell & Moring LLP
1001 P ennsylvania Ave., N.W.
Washington, D.C. 20004
Judith Rivlin, Esq.
United Mine Workers of America
900 F ifteenth St., N.W.
Washington, D.C. 20005
Harry Tuggle, Esq.
United Steelworkers of America
F ive Gateway Center
Pittsburgh, PA 15222
James A. Lastowka, Esq.
McDermott, Will & Emery
600 Thirteenth St., N.W .
Washington, D.C. 20005
Michael F. Duffy, Esq.
National Mining Association
1130 17'h St., N.W.
Washington, D.C. 20036
C harles J. Baird, Esq.
(Coal Operators and Associates)
Baird, Baird, Baird & Jones, PSC
P.O. Box 351
415 Second Street
Pikeville, KY 41502
Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite IOOO
Falls Churc h, VA 22041

1373

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

December 21, 1999
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 99-73

v.
ROSTOSKY COAL COMPANY

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On October 5, 1999, the Commission's Office of
Administrative Law Judges received a petition for discretionary review from Joseph Rostosky
challenging a decision issued by Administrative Law Judge Jacqueline Bulluck against Rostosky
Coal Company ("Rostosky") on September 3, 1999. 21FMSHRC1017 (Sept. 1999) (ALJ). In
her decision, Judge Bulluck affirmed a citation and an order issued by the Department of Labor's
Mine Safety and Health Administration ("MSHA"), ordered Rostosky to pay a civil penalty of
$2,000, and directed that the case be dismissed upon receipt of payment. M. at 1023.
The Commission received Rostosky's petition for filing on October 5, 1999, one day past
the 30-day deadline. See 30 U .S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). His petition also
faiied to meet the requirements ofRule 70(d) of the Commission' s Procedurai Rules. 1 However,
since Rostosky was not represented by counsel, the Commission ruled that the petition should not
be dismissed because it was one day iate. 21 FMSHRC 1071 , 1072 (Oct. 1999).

1

Rule 70(d) of the Commission's Procedural Rules requires that in a petition for
discretionary review, "[ eJach issue shall be separately numbered and plainly and concisely stated,
and shall be supported by detailed citations to the record, when assignments of error are based on
the record, and by statutes, regulations, or other principal authorities relied upon." 29 C.F.R. §
2700.70(d); see also 30 U.S.C. § 823(d)(2)(A)(iii).
1374

In addition, the Commission concluded that Rostosky should be afforded the opportunity
to conform his petition to the requirements of the Mine Act and the Commission's Procedural
Rules. Id. The petition was granted for the limited purpose of affording Rostosky an opportunity
to amend his petition to comply with the requirements of section 113(d)(2)(A)(iii) of the Mine
Act, 30 U.S.C. § 823 (d)(2)(A)(iii), and Rule 70(d), 29 C.F.R. § 2700.70(d). Id.
The Commission ordered Rostosky to file any amended petition within 20 days, making it
due on or before November 2, 1999. Id. at 1073. The Commission did not receive any further
submissions from Rostosky.
Rostosky did not comply with the Commission's order. Accordingly the direction for
review is vacated.

Theodore F. Verheggen, Commissio

1375

Distribution

Joseph Rostosky
Rostosky Coal Company
R.D. No. 3, Box 112
Monongahela, PA 15063
(Certified mail)
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Jacqueline R. Bulluck
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1376

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

December 22, 1999
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2000-37
A.C. No. 15-17741-03542

v.

KENAMERICAN RESOURCES, INC.

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

ORDER
BY: Jordan, Chai1man; Riley 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 18, 1999, the Commission received from
Kenamerican Resources, Inc. ("Kenamerican") a request 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). The Secretary of Labor does not oppose the motion for relief filed by Kenamerican.
Under section 105(a) of the Mine Act, an operator 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. If the operator fails to notify the Secretary, the
proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, Kenamerican asserts that its failure to file a hearing request to contest the
proposed penalty for Citation No. 7640047 was due to a processing error made by its accounting
department. Mot. at 2. The penalty assessment in question was issued to Kenamerican, along
with 10 other penalty assessments for other violations. Id. at 1. Kenamerican alleges that while it
intended to pay the penalty assessments for the 10 other violations, it intended to contest the
penalty assessment for Citation No. 7640047. Id. Kenamerican states that its accounting
department apparently sent a check in the amount of $550 for payment of the 10 single penalty
assessments, along with a hearing request to contest the penalty assessment for Citation No.
7640047, rather than separately filing the request. Id. Kenamerican maintains that, upon learning
of this misfiling, it sent a letter dated October 28, 1999, to MSHA's Civil Penalty Compliance
1377

Office explaining the misfiling and requesting MSHA to accept the letter as its hearing request.
Ex. B. It claims that MSHA responded by letter dated November 17, 1999, stating that it
received Kenamerican's payment and hearing request on October 29, 1999, but denying the
request because the penalty assessment had become a final order of the Commission on October
13. 1 Ex. C. Finally, Kenamerican states, without elaborating, that the misfiling also was due to a
computer error. Mot. at 3. Kenamerican attached to its request copies of the proposed penalty
assessments, the certified mail receipt, and correspondence with MSHA. Exs. A-C. Kenamerican
requests that the Commission reopen the final order and allow the contest to proceed to hearing.
We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we
possess jurisdiction to reopen uncontested assessments that have become final by operation of
section 105(a). See, e.g., Jim Walters Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993);
Rocky Hollow Coal Co., Inc., 16 FMSHRC 1931, 1932 (Sept. 1994). We have also 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 Services, Inc., 17 FMSHRC 1529,
1530 (Sept. 1995). In accordance with Rule 60(b)(1 ), we have previously afforded a party relief
from a final order of the Commission on the basis of inadvertence, mistake, or excusable neglect.
See National Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19
FMSHRC 1613, 1614-15 (Oct. 1997).

1

Kenamerican claims that MSHA received its hearing request on October 21, 1999.
Mot. at 1. However, consistent with statements in MSHA's November 17 letter, the return
receipt indicates that its hearing request was delivered to MSHA and signed for on October 29,
1999. Exs. A, C.
1378

On the basis of the present record, we are unable to evaluate the merits ofKenamerican's
position. 2 In the interest of justice, we remand the matter for assignment to a judge to determine
whether Kenamerican has met the criteria for relief under Rule 60(b). See Benton County Stone,
Inc., 21 FMSHRC 5, 5-6 (Jan. 1999) (remanding operator's request to reopen final order where
the operator's secretary internally misfiled the proposed penalties); Del Rio, Inc., 19 FMSHRC
467, 467-68 (Mar. 1997) (remanding for judge's consideration operator's request to reopen
penalty assessment after green card was misfiled in accounts payable file). 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, Commiss· ner

2

In view of the fact that the Secretary does not oppose Kenamerican's motion to reopen
this matter for a hearing on the merits, Commissioners Marks and Verheggen conclude that the
motion should be granted.

1379

Distribution

Adele L. Abrams, Esq.
David Farber, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037
W. Christian Schumann, 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. 20006

1380

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

December 23, 1999
GARY D. MORGAN
Docket No. LAKE 98-17-D

V.

ARCH OF ILLINOIS

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
DECISION
BY: Jordan, Chairman; Marks and Beatty, Commissioners
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (1994) ("Mine Act" or "Act"). Miner Gary Morgan seeks review of the decision by
Administrative Law Judge Avram Weisberger dismissing a discrimination complaint against Arch
of Illinois ("Arch") brought pursuant to section 105(c) of the Act, 30 U.S.C. § 815(c). 1

1

Section 105(c) of the Act provides, in pertinent part:
(1) No person shall discharge or in any manner discriminate against
or ... otherwise interfere with the exercise of the statutory rights of
any miner ... in any coal or other mine subject to this Act because
such miner ... has filed or made a complaint under or related to
this Act, including a complaint notifying the operator or the
operator's agent ... of an alleged danger or safety or health
violation in a coal or other mine, ... or because of the exercise by
such miner ... of any statutory right afforded by this Act.
(2) Any miner ... who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person in
violation of this subsection may, within 60 days after such violation
occurs, file a complaint with the Secretary alleging such
discrimination.
(3) . . . If the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of the
1381

20 FMSHRC 571 (June 1998) (ALJ). For the reasons that follow, we vacate the judge's decision
and remand for further consideration consistent with this decision.
I.

Factual and Procedural Background
Arch operates a number of underground coal mines, including the Kathleen Mine and
Conant Mine in southern Illinois. Id. at 571. Gary Morgan, a miner with more than 25 years
experience in various jobs, worked at the Kathleen Mine from 1989 until being laid off in July
1995, when the mine closed. Id. Morgan' s primary jobs were operating the scoop and driving a
ram car, and he filled in for other miners at lunch break or during overtime on the roof bolter and
continuous miner. Id.
During Morgan's tenure at the Kathleen Mine, he made frequent complaints to his
immediate foreman, Ben Williams, about dust conditions in the mine. Id. According to Morgan,
Williams often ignored his complaints because he was busy loading coal. Id. at 571-72. In
addition to complaining to Williams, Morgan also spoke to the manager of the Kathleen Mine,
Harry Riddle, about dust conditions in the mine. Id. at 572. In 1990, Morgan complained to
Riddle about dust conditions in the mine, and the following day there was some improvement, but
dusty conditions later returned. Id.
In 1994, Morgan observed dust pumps being turned off and dust intake hoses being placed
under miners' lapels during periods of high dust at the mine. Id. Morgan complained to his
supervisor Williams and then to his union safety committeeman, Jasper Stirsman, about the way
dust sampling was done at the Kathleen mine. Id. Stirsman eventually reported the problem to
the local office of the Department of Labor's Mine Safety and Health Administration ("MSHA").
Id. Around August 1994, mine manager Riddle met with Williams ' crew, and during the meeting
Morgan indicated that he was the one who had reported the violation. Id. at 572, 579. At the
meeting, a confrontation occurred between Morgan and the miner who had reportedly turned off
the dust pump. Id. at 572. Riddle ordered the miners to take proper dust samples and sent them
back to work. Id. Sometime after the meeting, Riddle told miners Gerald Selby and Dan Helmer
that Morgan would never work for Arch again. Id. at 575; Tr. at 147-48, 153-54.

Secretary's determination, to file an action in his own behalf before
the Commission, charging discrimination or interference in violation
of paragraph (1).

1382

According to Stirsman, at a meeting to resolve dust complaints, Gene Sharp,
superintendent of the Kathleen Mine, stated that he knew that it was Morgan who was causing the
complaints, even though Stirsman had not mentioned Morgan by name. 20 FMSHRC at 572. On
several occasions, Stirsman heard Sharp make derogatory remarks about Morgan. Id.
In July 1995, Morgan was laid off from the Kathleen Mine when it closed for economic
reasons. ! cl. at 572. By agreement between Arch and United Mine Workers of America ("the
Union"), Morgan 's name was placed on a panel list from which Arch selected miners by seniority
for job vacancies. lei. at 572, 576. In September 1996, Arch contacted Morgan to take the tests
to qualify for an inby job at the Conant Mine. Id. at 572. Riddle, Williams, and a number of
Kathleen supervisors had previously transferred to the Conant Mine. Tr. 157-58, 186-88, 296.
Morgan's foreman at the Kathleen Mine, Williams, remarked at a meeting at the Conant mine held
in September that he did not want Morgan on his crew. 20 FMSHRC at 575. Pete Wyckoff,
manager ofthe Conant Mine, heard Williams say that he did not want Morgan on his crew, but
testified that he did not know why. Id. at 577. Wyckoff supervised both Bob Blaylock,
supervisor of safety, and John Cotter, a shift foreman at Conant, who were involved in testing
applicants at the mine. Id.; Tr. 218, 245, 293.

Pursuant to the union agreement, miners were required to pass a written test before being
given a hands-on test to qualify for available jobs. 20 FMSHRC at 576. Miners had to pass a
hands-on test on three out of four pieces of equipment in order to qualify for an inby job. Id.
Nearly every miner chose to be tested on the coal hauler, or ram car, and scoop because each of
those pieces of equipment required minimal levels of skill. Id. About 75 to 80 percent of miners
chose to be tested on the roof bolter, which required a higher skill level, while only 20 percent
chose to be tested on the continuous miner, which required the greatest level of skill. Id. As a
miner completed the test on each piece of equipment, a form was completed by the supervisor
administering the test. Tr. 250; Pet. Ex. G.
Morgan took and passed the written test, which was administered by Cotter. Id. at 572.
Cotter also administered the hands-on test to Morgan. Id. This included tests to operate the ram
car and scoop, which Morgan passed. Id. Prior to the hands-on test on this machinery, Cotter
allowed Morgan time to familiarize himself with the controls and practice with the equipment. Id.
For the next part of the hands-on exam, Morgan tested on the roof bolter. Id. Morgan testified
that Cotter did not allow him time to become familiar with the controls or practice. Id. As
Morgan began bolting, Cotter told Kenny Anheuser, who was assisting Morgan by preparing the
roof bolts and handing them to Morgan as he drilled the holes, to stop helping Morgan because he
was being tested. Id. Morgan completed the test and asked Cotter how he did. Id. Cotter
responded that he did not evaluate the tests but merely recorded information. 2 Id. at 572-73.
Cotter stated that he generally does not time miners on drilling and bolting because of the varying
roof conditions in the mine. Tr. 253-54. For the final component of the hands-on test, Cotter

2

At trial, Cotter stated that, in fact, he did determine who passed or failed the test but
that he would not be the one who notified Morgan of the test results. Tr. 263.
1383

asked Morgan ifhe wished to be tested on the continuous miner, and Morgan agreed to it. 20
FMSHRC ai 573. As with the roof bolter, Morgan was not given time to familiarize himself with
the equipment. Id. Morgan admittedly performed badly on the test when he miscalculated on the
position of the miner and cut too close to the roof. Id.
Several days later, Morgan contacted Blaylock, supervisor of safety at the Conant Mine
who was also in charge of testing. Id. at 573; Tr. 209. Blaylock told Morgan that he had failed
the hands-on test on the roof bolter. Id. Blaylock stated that Morgan did not change bits, that he
had bent a "roof bolt steel," and that he had taken too much time. Id. 3 Blaylock further told
Morgan that, because he failed the test on the roof bolter, he could not be considered for an outby
position, which required passing tests on two of three pieces of equipment, including the roof
bolter. Id. Blaylock concluded by telling him that, if Morgan could enhance his skill on the roof
bolter, he could be retested. Id. Subsequently, a miner with less seniority than Morgan was
awarded an outby position. Id.
After Morgan was notified that he failed the test, he filed a grievance with the Union that
was ultimately withdrawn. Tr. 66, 84-85. Thereafter, in July 1997, Morgan filed a discrimination
complaint with MSHA. Following an administrative investigation, MSHA dismissed Morgan's
complaint. Subsequently, he filed a discrimination action under section 105(c)(3) of the Mine Act
with the Commission, and a hearing was held.

In a pretrial order, the judge rejected a motion to dismiss filed by Arch on the grounds that
Morgan's discrimination complaint filed with MSHA in July 1997 was untimely. Order at 2 (Feb.
26, 1998).
On the merits, the judge found that Morgan had clearly engaged in protected activities in
reporting dust conditions to his immediate foreman, Williams, the mine superintendent, Riddle,
and the Union safety committeeman, Stirsman. 20 FMSHRC at 578. The judge also found that
the record was clear in showing that Morgan had suffered an adverse employment action when he
failed the hands-on test and was not recalled at the Conant Mine. Id. In the judge's view, the
main issue was whether the adverse action was motivated in any part by Morgan's protected
activities. Id.
The judge found that Morgan had "many confrontations" with his foreman, Williams,
including arguments over dust sampling. Id. at 579. The judge concluded that Williams bore
animus towards Morgan, at least in part, because of dust complaints. Id. However, the judge
also credited Williams' testimony that he did not tell Cotter, or anyone else, to fail Morgan on the
hands-on testing. Id. The judge also found that superintendent Riddle was aware of Morgan's
protected activities and had stated that Morgan would never work at Arch Minerals again. Id.

3

Cotter testified at trial that he failed Morgan because he was not "smooth" in operating
the bolter. Tr. at 262.
1384

The judge concluded however, that it had not been established that Cotter had any animus
toward Morgan relating to his protected activities, or that he even knew about them before
October 1996, when the adverse actions were taken. 20 FMSHRC at 581. The judge credited
Cotter's testimony that no one told or suggested to him to fail Morgan, that no one told him to
test Morgan any differently, and that he was not aware that Morgan had made dust complaints to
MSHA or to Arch. Id. The judge determined that Morgan had failed to prove that the adverse
action taken by Arch, acting through Cotter, was in any part motivated by Morgan's protected
activities. Id. Accordingly, he concluded that Morgan failed to prove that he had been
discriminated against in violation of section 105(c) of the Act. Id.
II.
Disposition
Morgan' s primary argument on appeal is that substantial evidence does not support the
judge's findings and conclusions. PDR at 1. 4 Morgan notes that the primary issues the judge had
to resolve were the weight to be given to the circumstantial evidence of discrimination and the
credibility accorded to the testimony of Arch's witnesses. Id. at 3. In support of his position,
Morgan cites several examples of disparate treatment whereby other miners who were tested were
given time to warm up, assisted by a helper, or allowed a retest. Id. at 3-4. Morgan cites to
testimony indicating that the superintendent at the Conant Mine knew of Morgan's dust
complaints and the animus of his foreman. Id. at 5-7. Morgan notes inconsistencies in roof
bolting testing procedures, particularly as to timing and retesting. Id. at 7-8. Further, Morgan
contends that inconsistencies in Cotter' s testimony as to why he rated Morgan unsatisfactory on
the roof bolter are a basis for discrediting Cotter. Id. at 11-12. Finally, Morgan argues that Arch
improperly withheld during document production the original of the hands-on test that has whiteout over a check mark in a box indicating that Cotter had failed Morgan in running a coal scoop.
Id. at 16-17. Ivforgan argues that he was prejudiced by Arch' s failure to release the document
prior to trial, and that, more significantly, the document raises questions about Cotter' s
truthfulness and demonstrates that Arch officiais at Conant conspired to ensure that Morgan
would fail the hands-on test. Id. at 15-22.

In response, Arch argues that substantial evidence supports the judge' s decision. Arch
Resp. Br. at 5. Arch emphasizes that the judge based his decision on credibility determinations,
and in particular crediting of Cotter, who administered the test to Morgan, including his denial
that he knew anything about Morgan ' s dust complaints. Id. at 5-6. Arch argues that, while the
judge found that Kathleen foreman Williams and superintendent Riddle harbored animus towards
Morgan as a result of his dust complaints, the judge credited Cotter, who administered the test,
and Blaylock, who was in charge of testing at Conant, that they did not know of Morgan's
complaints and no one told them to fail Morgan. Id. at 5-7. Thus, Arch concludes that Morgan
failed to prove a causal connection between his protected activity and his failure to be recalled as

4

Morgan requested that his PDR be accepted as his opening brief.
1385

a result of the test. Arch Resp. Br. at 8. Finally, Arch contends that the judge erred in not
dismissing Morgan's complaint as untimely. Id. at 11-12.
A.

Timeliness of Morgan's Complaint

The judge denied Arch's motion to dismiss Morgan's complaint on timeliness grounds,
even though it was filed over 10 months after the adverse employment action. He found that
Morgan had shown justifiable circumstances-lack of counsel and pursuit of a grievance over the
failure to be recalled- that excused the late filing and that Arch had not shown that it was
prejudiced as a result. Order at 2 (Feb. 26, 1998).
Morgan was notified that he failed the test on September 21, 1996. M. Resp. to Mot. to
Dismiss at 3. During that conversation, he informed Blaylock that he would file a grievance
through the Union. Pet. Ex. C at 38. According to Morgan, Blaylock told him to consider that
this was the first step of the grievance process and his grievance was denied. Id. Thereafter, he
raised a complaint with his Union that apparently led to a grievance that was later withdrawn. Id.;
Tr. 84-85. Subsequently, he filed a grievance dated February 9, 1997, in which he grieved Arch's
recall of a miner with less seniority to an outby job. Pet.Ex.Cat 115. That grievance was
eventually withdrawn. M. Resp. to Mot. to Dismiss at 3. Morgan stated that even when his
second grievance was dropped, he continued to pursue his complaint through other
communications with union officials. Pet. Ex. C at 38. He maintains that he was told by a union
official on July 15, 1997 that his appeals were of no avail. Id. Morgan filed his discrimination
complaint on July 29, 1997.
Morgan argued to the judge that he felt that his rights had been violated, but that he had
initially pursued his complaint through the Union's grievance procedure. M. Resp. to Mot. to
Dismiss at 4. Morgan further noted that he did not obtain an attorney until sometime later in
'.Jursuing his claims against Arch. Id. (He filed the disc1imination complaint against Arch
apparently without the assistance of counsel.) Arch argues that Morgan must have been well
aware of his rights under the Mine Act because he filed his complaint without the assistance of
counsel. A. Mot. to Dismiss at 4.
Commission case iaw is clear that the 60-day period for filing a discrimination complaint
under section 105(c)(2), 30 U.S.C. § 815(c)(2), is not jurisdictional. Hollis v. Consolidation
Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff'd mem, 750 F.2d 1093 (D.C. Cir. 1984). A judge
is required to review the facts "on a case-by-case basis, taking into account the unique
circumstances of each situation" in order to determine whether a miner's late filing should be
excused. Id. Finally, "a miner's genuine ignorance of applicable time limits may excuse a late
filed discrimination complaint." Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 13 (Jan. 1984).
We believe that the judge correctly denied Arch's motion to dismiss. The delay in filing
was significant, but not out of line with delays in other cases in which the Commission excused
the Secretary from complying with a filing deadline. See Secretary of Labor on behalf ofHale v.
4-A Coal Co., 8 FMSHRC 905, 905-06 (June 1986) (two year delay); Secretary ofLabor on
1386

behalfof Nantz v. Nally & Hamilton Enters., 16 FMSHRC 2208, 2214-15 (Nov. 1994),
overruled on other grounds, Secretary ofLabor on behalfofPoddey v. Tanglewood Energy, Inc.,
18 FMSHRC 1315, 1325 (Aug. 1996) (four month delay). In Hale, the Secretary delayed filing a
discrimination complaint for two years after the miner contacted MSHA, while it was
investigating the complaint. 8 FMSHRC at 905-06. However the Commission noted in that case
that there was no evidence of prejudice to the operator as a result of the late filing. This, the
Commission found, was a primary consideration in cases involving late filing. id. at 908-09;
Nantz, 16 FMSHRC at 2214-15 (failure to meet time limits in sections 105(c)(2) and (3) should
not result in dismissal, absent a showing of "material legal prejudice").
In the instant proceeding, there is no evidence that this delay by Morgan in filing his
complaint resulted in prejudice to Arch. 5 See Boswell v. National Cement Co., 14 FMSHRC 253,
257 (Feb. 1992) (filing a complaint 12 days late was de minimis and excused where the operator
showed no prejudice in connection to the brief delay); Lizza Indus., 6 FMSHRC at 13 (31-day
delay in filing excused where the operator showed no prejudice). In addition, Morgan proceeded
without benefit of counsel. Morgan's pursuit ofrelated complaints through the Union indicates
that he was not sleeping on his rights. Accordingly, we affirm the judge's denial of the motion to
dismiss for failure to timely file a complaint.
B.

Morgan's Claim of Discrimination

The linchpin of the ALJ's decision in this case is his decision to credit the testimony of
John Cotter, the Conant foreman who was responsible for testing and failing Morgan. The judge
concluded that the decision to fail Morgan was made by Cotter alone (20 FMSHRC at 580) and
that it had not been established that Cotter, "the only agent of Arch to have taken adverse action
against Morgan, had any animus toward Morgan relating to his protected activities, or even knew
of Morgan's protected activity ... when the adverse actions were taken." Id. at 581.
Vile have carefully reviewed this record, which is replete with evidence of Arch
management's hostility towards Morgan and his safety complaints. The evidence portrays a mine
where seemingly everyone - except, according to Arch witnesses, Cotter and Blaylock - knew
about Morgan's protected activity and the hostility it engendered among his supervisors.
S owevcr, when he made his credibility determination regarding Cotter's testimony, there is no
indication that the judge took into account this evidence of hostility.
We note at the outset that we are hesitant to disturb a judge's credibility determinations on
appeal. We are reluctant, however, to affirm a credibility determination that is undermined by
record evidence to the contrary that was not examined by the judge. As explained in detail below,
the cumulative force of this evidence leads us to the conclusion that the judge's credibility findings
must be reexamined.

5

Arch argued in its post-hearing brief to the judge that "general prejudice ... should be
inferred." A Post-Hearing Br. at 13.
1387

We begin with the well-established principles of analysis of a discrimination case under the
Mine Act. A complainant alleging discrimination establishes a prima facie case of prohibited
discrimination by presenting evidence sufficient to support a conclusion that the individual
engaged in protected activity and that the adverse action complained of was motivated in any part
by that activity. Secretary ofLabor on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2799 (Oct. 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor on behalfofRobinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may rebut the prima facie case by
showing either that no protected activity occurred or that the adverse action was in no part
motivated by protected activity. Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut
the prima facie case in this manner, it nevertheless may defend affirmatively by proving that it also
was motivated by the miner's unprotected activity and would have taken the adverse action for
the unprotected activity alone. Id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying PasulaRobinette test).
With regard to Morgan's prima facie case of discrimination, the record clearly shows that
he engaged in the protected activity of reporting dust conditions at the Kathleen Mine, and the
judge so found. 20 FMSHRC at 578. Further, he was the victim of adverse employment action
when Arch refused to recall him. Id. The pivotal issue, then, was whether a nexus existed
between Morgan's protected activity and Arch's refusal to rehire him.
As the Commission has long noted, "[d]irect evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect. ... 'Intent is subjective and in many cases
the discrimination can be proven only by the use of circumstantial evidence."' Secretary of
Labor on behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981)
(quoting NLRB v. Melrose Processing Co., 351F.2d693, 698 (8th Cir. 1965)). Some of the
more common circumstantial indicia of discriminatory intent include knowledge of the protected
activity, hostility or animus towards it, coincidence in time between the adverse action and the
protected activity, and disparate treatment of the complainant. Chacon, 3 FMSHRC at 2510.
Although the judge acknowledged these principles (20 FMSHRC at 578-79) when he accepted
Cotter, Riddle and Williams' testimony that neither told Cotter to fail Morgan, he emphasized, in
crediting each of their statements, that there was no direct evidence impeaching or contradicting
their tes.timony. Id. at 579-80. What he failed to consider, however, was that the record contains
abundant circumstantial evidence that calls their assertions into question. 6

6

Although the absence of direct contradictory evidence is relevant, it is not dispositive.

In fact, "[t]he Commission has made clear that such direct evidence is rare and that discriminatory
intent may be established by the kind of indirect evidence involved here." Secretary ofLabor on
behalfofPrice & Vacha v. Jim Walter Resources, Inc., 14 FMSHRC 1549, 1555 (Sept. 1992)
(rejecting contention that discrimination must be established by direct evidence.) It is not clear
from the judge's emphasis on "direct" evidence in his decision whether he recognized this
1388

We .do not lightly question the judge's credibility determinations in this case. We
recognize the principle that a judge's credibility determinations are entitled to great weight and
may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept.
1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has
recognized that, because the judge "has an opportunity to hear the testimony and view the
witnesses[,] he [or she] is ordinarily in the best position to make a credibility determination." In
re: Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov.
1995) ("Dust Cases") (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), ajf'd
sub nom. Secretary ofLabor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998).
Nonetheless, we have recognized that there are exceptions to this general rule. Id. at 1881 n. 80.
"Credibility involves more than a witness' demeanor and comprehends an overall evaluation of
testimony in the light of its rationality or internal consistency and the manner which it hangs
together with other evidence." 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2586, at 578-79 (2d ed. 1995). Accordingly, we have determined that one such
exceptional circumstance occurs when a credibility finding is contradicted by the record evidence.
Dust Cases, 17 FMSHRC at 1881 n.80.

In Consolidation Coal Co., 11 FMSHRC 966, 974 (June 1989), for example, the
Commission credited the testimony of a witness which the judge had summarily dismissed as "not
conclusive." Id. We noted in that case that "[w]hile we have previously stated that we do not
lightly overturn a judge's credibility findings and credibility resolutions, neither will we affirm
such findings if there is no evidence or dubious evidence to support them." Id.
Here, Cotter's assertion that mine management never talked to him about Morgan•is
suspect in light of other compelling record evidence. The record shows, and the judge found, that
Morgan made numerous dust complaints and that Arch management, including his foreman,
Williams, and the superintendent at the Kathleen Mine, Riddle, were well aware of his role. 20
?MSHRC at 579. Further, the record shows that Arch reacted in a hostile manner to Morgan' s
protected activity. Hostility towards protected activity- sometimes referred to as ' animus ' - is
another circumstantial factor pointing to discriminatory motivation. Chacon, 3 FMSHRC at 2511
(citing NLRB v. Superior Sales, Inc., 366 F.2d 229, 233 (8th Cir. 1966)). In this case, thete is no
question that Arch supervisors at the Kathleen Mine were angry at Morgan for his vigorous
pursuit of dust complaints. 7

principie.
7

The possibility that Arch management was capable of retaliatory action is supp.orted by
the testimony of three Arch miners who testified under subpoena. Testimony of Dennis Harrison,
Tr. 109 ("I'd like to ·stay out of this, just repercussions possibly down the road."); testimony of
Stanley Warden, Tr. 128-29 ("I feel that being here today would jeopardize my chances of passing
the test for employment."); testimony of Gerald Selby, Tr. 139-40 ("I'm just afraid for ... me
standing up for my rights, that - that they might classify me as a troublemaker, also."). See also
testimony of Harrison, Tr. 123-24 ("[Morgan's failing the test] [d]idn't surprise me. I-I felt that ·
1389

Perhaps the most compelling testimony on this point is that of miners Selby and Helmer.
Selby testified that a few days after the August 1994 meeting with mine manager Riddle, he asked
Riddle about Morgan and the dust samples and Riddle stated "Gary Morgan will never work in an
other Arch Minerals mines again (sic)." 20 FMSHRC at 579. Helmer corroborated this
testimony. Id. at 579-80. Riddle, not surprisingly, denied this remarkable statement of hostility at
trial. Id. at 580.8
The judge appears to have credited Selby and Helmer on this point. Id. at 580. However,
he failed to factor this finding into his analysis of whether Cotter was truly oblivious to the mine
manager's hostility towards Morgan. Specifically, since he credited the miners' testimony that
Riddle made this remark, the judge should have considered this in assessing the credibi lity of
Riddle's testimony that he did not ask or tell Cotter, or Wyckoff, his boss, to fail Morgan. See
Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984) (finding ALJ
credibility determination unreasonable when witness testimony was not consistent with his
affidavit nor with testimony of other witnesses); NLRB v. Mt. Vernon Tel. Corp., 352 F.2d 977,
980 (6th Cir. 1965) (questioning trial examiner's credibility determination, in part, because he had
not credited the witness on other aspects of his testimony). Additionally, the judge discredited
both Williams' and Riddle's testimony that Riddle was not aware of Morgan's complaints about
dust violations. 20 FMSHRC at 579. Although knowledge of protected activity is an accepted
indicia of discriminatory intent (Chacon, 3 FMSHRC at 2510), the judge failed to factor
management's discredited testimony regarding knowledge into his subsequent definitive credibility
determinations.
The judge also credited the testimony of Williams, the section foreman, that he did not tell
'.:otter to fail Morgan. 20 FMSHRC at 579. Although he acknowledged Williams ' statement
that he did not want Morgan in his unit and found that Williams had some animus towards
Morgan, due in part to his protected activity, he nonetheless accepted Williams' testimony
because it was not directly contradicted or impeached. Id. As with the Riddle credibility
determination, in crediting Williams' testimony on this point the judge appears to have failed·to
iook at the entire body of evidence regarding his hostility towards Morgan. Williams' dislike of
Morgan was so well known that it became the subject of jokes by several miners, who kidded
Williams about the possibility that Morgan would be rehired onto Williams' section. Tr. 120-21,
170.
The credibility of the operator' s witnesses' testimony that none of them alerted Cotter
about Morgan is further drawn into question by the testimony of the superintendent at the Conant

(Morgan] was gonna flunk before he even took the test . .. [A]fter the report of the violations
over at Kathleen Mine, I stated to Gary that he'd never work for another Arch mine.")
8

He also denied it in his interview with the MSHA investigator. Pet. Ex. C at 10.
1390

Mine, Wyckoff Wyckoff testified that when he was presented with a list of panel applicants for
employment at the Conant Mine, he usually tried to talk to their ex-supervisors, and that there
were several ex-Kathleen supervisors at his mine. Tr. 295-96.9 He also admitted that he attended
a meeting at which Williams stated he did not want Morgan on his crew. Tr. at 296. Wyckoff
stated, however, that he did not recall making any response or follow-up to Williams' criticism.
Tr. 296-97.
Management witnesses insisted that they barely communicated to each other about this
admittedly assertive miner. However, the record reflects that many of these individuals were
working the same shift at this relatively small mine. Pet. Ex.Cat 5 (mine has approximately 127
underground and 8 surface employees split into three shifts); Tr. 187 (Riddle worked on A crew);
Tr. 243 (Cotter worked on A crew). The Commission has previously held that the small size of a
mine supports an inference that an operator knew of a miner's protected activity. Secretary of
Labor on behalfof Hyles v. All Am. Asphalt, 21FMSHRC119, 130-3 1(Feb.1999). See also
Chauffeurs, Teamsters & Help., Local 633 v. NLRB, 509 F.2d 490, 497 (D.C. Cir. 1974); Famet
Inc. v. NLRB, 490 F.2d 293, 295 (9th Cir. 1973).
We are unable to determine whether this backdrop of knowledge of, and hostility towards,
Morgan's protected Mine Act activities was taken into account when the judge credited Cotter's
testimony that not one of these management officials ever approached him about Morgan. Before
a judge credits any testimony, he must reconcile all record evidence that is inconsistent with that
conclusion. In reviewing a judge's credibility determination, we may "'refuse to follow [it] where
it confli cts with well supported and obvious inferences from the rest of the record. Such refusal is
particularly justified where the testimony in question is given by an interested witness and relates
to his own motives.'" NLRB v. Elias Bros. Big Boy, Inc., 327 F.2d 421, 425-26 (6th Cir. 1964)
(quoting NLRB v. Pyne Molding Corp., 226 F.2d 818, 819 (2nd Cir. 1955)).
As the Fourth Circuit has noted, "administrative findings based on oral testimony are not
sacrosanct." Breeden v. Weinberger, 493 F. 2d 1002, 1010 (4th Cir. 1974). The record evidence
in this case portrays a mine where managers did not hesitate to express their hostility towards
Morgan and his safety complaints. We simply cannot affirm a credibility determination that
ignores extensive record evidence that tends to call that finding into question. In addition, we
have rejected the contention that a discharging supervisor's non-discriminatory intent shielded the
operator from a finding of discrimination, when other involved supervisors demonstrated
animosity towards the protected activities of the affected miners. Price v. Vacha, 14 FMSHRC at
15 57. Although we will overturn a judge's credibility determination only in rare circumstances,

9

The record reveals that hostility towards Morgan's safety complaints reached Gene
Sharp, the Kathleen superintendent who stated that "[d]amn Morgan is the one that's causing the
complaint," and that Sharp made derogatory remarks about Morgan at a safety committee
meeting and in the bathhouse. Tr. 17, 19. The record also revealed that Wyckoff was acquainted
with Sharp. Tr. 300. Although the judge mentioned these incidents, he did not address their
significance.
1391

we will not rubberstamp them. See NLRB v. Motorola, Inc., 991 F.2d 278 (5th Cir. 1993). We
agree with the approach of the Seventh Circuit, which has stated:
there are certain times when a court must overrule [an ALJ
credibility] determination· by examining evidence in the record that
detracts from the ALJ's findings. [citation omitted). Otherwise an
ALJ would have to be upheld whenever there was the slightest
support in the record, and our standard of review would be
transformed from substantial evidence to scintilla evidence.
Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980).

We dispute our dissenting colleagues' accusation that we are "drawing inferences in the
absence of evidence." Slip. op. at 17. First, we have deliberately avoided drawing any inferences
from the evidence ourselves. Instead, we are remanding this case to the judge. As the trier of
fact, he will examine the evidence we have highlighted in this opinion. He will then decide
whether to draw any inferences concerning Cotter's knowledge of Morgan's protected activity
and the hostility of other members of Arch's hierarchy towards Morgan. Nor are we by any
means suggesting that inferences may be properly drawn in the absence of supporting evidence.
To the contrary, we have identified a wide array of evidence that we are simply asking the judge
to consider in revisiting his credibility determinations. Accordingly, we remand this matter to the
judge, for consideration of the additional evidence cited above in making his credibility
determinations.
The judge's decision is flawed in another respect. Absent from his decision is any analysis
of the hands-on test as a possible pretext for refusing to reinstate Morgan or whether Morgan was
the victim of disparate treatment in application of the test. The judge did not address Morgan's
i:estimony that he was not given time to warm up on the bolter, that he was denied the assistance
of a helper, and that he did not bend a steel. See 20 FMSHRC at 572-73. In contrast, Dennis
Harrison, a former pit committeeman at the Kathleen Mine, testified that when he took the test for
an inby position he was given 25 minutes to fam iliarize himself with the equipment. Id. at 573.
'ii/hen the test began, a helper prepared the roof bolts and handed them to him. Id. The roof
oo1ter lost power during the test, thereby preventing him from completing the test. Id. After
testing Harrison on the scoop and hauler, Blaylock told him that he did not have time to further
test him on the roof bolter but that he had passed and should report to work. id. Similarly, when
Lester Furlow tested successfully for an inby position in 1993, he was given 30 to 45 minutes to
warm up. Id. at 574. During the test, he broke the steel and the clip holding the bit on the steel
which a helper showed him how to change. Id. In addition, Stanley Warden testified that he
helped several individuals when they were tested on the roof bolter. Tr. 130. Blaylock also
testified that applicants are given a warm up period. Tr. 215.

1392

The judge also failed to acknowledge or address inconsistencies in the record as to
whether Cotter timed miners when they were tested on the roof bolter (compare Tr. at 272-74
with Pet. Ex. G at 6-7, and compare 20 FMSHR C at 573 with id. at 577), or Cotter's inability to
explain why he gave Morgan "nonsatisfactory'' ratings on aspects of the roof bolter test (Tr. 27375). He also failed to resolve the conflicting testimony of Morgan (who claimed he had no warmup time or helper, 20 FMSHRC at 572) and Cotter (who stated that he always allowed a warm up
period, and that he always permitted a roof bolt helper to help applicants assemble bolts, Tr. 247,
254 10). If the judge had resolved this conflict in Morgan's favor, he should have considered this
when assessing the credibility of Cotter's testimony that nobody told him to fail Morgan.
The judge could have relied on Morgan's testimony as evidence of disparate treatment
(see, e.g. , Chacon, 3 FMSHRC at 2512-13), or inconsistent treatment of Morgan versus other
similarly laid-off miners who were tested. Accommodations given to other miners but not
afforded to Morgan may be evidence of discriminatory treatment. Price and Vacha, 14 FMSHRC
at 1559. Morgan's pretextual claim is bolstered by the fact that only 3 out of20 Kathleen mine
applicants failed the test at Conant (Pet. Ex. Cat 15), and that Morgan had two to three years of
roof bolting experience at the time he was tested. Tr. 81-84. The judge's apparent failure to
consider this evidence also constitutes grounds for a remand. See Secretary ofLabor on behalfof
Hyles v. All Am. Asphalt, 18 FMSHRC 2096, 2102 (Dec. 1996). 11
Based on the foregoing, we vacate the judge's decision and remand the case to enable the
judge to more fully consider the record evidence that he did not address. Mid-Continent
Resources, Inc., 16 FMSHRC 1218, 1222-23 (June 1994) (vacating and remanding when judge
failed to adequately analyze and weigh the relevant testimony of record, make appropriate
findings, and explain the reasons for his decision); Commission Rule 69(a), 29 C.F.R.
§ 2700.69(a) (requiring a judge's decision to "include all findings of fact and conclusions oflaw ,
and the reasons or bases for them, on all the material issues of fact, law or discretion presented by
the record").

10

Morgan testified that when he started installing bolts, the helper began to pick them up
and hand them to him, until Cotter explicitly informed him that he was not permitted to help
Morgan. Tr. 56.
11

Commissioner Marks believes that, in addition, the judge should have at least
considered the use of white-out on the original of the test document (Pet. Ex . G at 12), which was
not produced during discovery and appeared for the first time late at trial. Morgan argues (PDR
at 17-18) that the white-out indicates that the test results were altered after he completed the test.
The judge does not address this assertion. Moreover, the white-out must be evaluated with
respect to Cotter's overall credibility. See Cotter' s testimony at Tr. 260, 275-76, 285-90. On
remand, the white-out issue should be fully examined. In addition to the white-out, the hands-on
test results also reflects the handwriting of two different persons and the ink of three different
pens. See Pet. Ex. G at 4, 10. The record is silent as to any explanation regarding those
occurrences.

1393

Ill
For the foregoing reasons, we vacate the decision of the administrative law judge and
remand the case for further consideration.

Marc Lincoln Marks, Commissioner

1394

Commissioners Riley and Verheggen, dissenting:
We are not willing to follow the lead of our colleagues and take the extraordinary step of
vacating the judge's credibility findings in this case. To the contrary, we see no basis for vacating
the judge's decision on the merits. 1 Accordingly, we would affirm the judge's determination that
Cotter failed Morgan on the hands-on test for nondiscriminatory reasons. We therefore dissent
from Part II.B of our colleagues' opinion.
We agree with the majority that the "pivotal issue" in this case is "whether a nexus existed
between Morgan's protected activity and Arch's refusal to rehire him" after he failed the hands-on
test. Slip op. at 8. In resolving this issue, the judge credited Cotter's testimony on the basis of
his demeanor and the lack of contradictory record evidence:
The decision to fail Morgan on the bolter test was made by
Cotter. I observed Cotter's demeanor and found his testimony
credible. Also, I note that the record does not contain any direct
evidence impeaching or contradicting his testimony that he was not
told by anyone to fail Morgan, that no one suggested that he fail
Morgan, that no one had told him to test Morgan any differently
than any other candidate, and that at the time of the test he did not
know that Morgan had made complaints to MSHA and Arch. I
thus accept his testimony.
20 FMSHRC at 580. Although Morgan testified that he was the victim of disparate treatment
because he was not given time to warm up and was denied the help of an assistant, the judge

1

We disagree with Part II.A of the majority's decision, which states: "the judge correctly
cicnied Arch 's motion to dismiss" Morgan's complaint on timeliness grounds. Slip op. at 6-7.
The Commission has held that it "expects a showing of good cause to explain any ... delay" in
filing a complaint for discrimination or compensation. Farmer v. Island Creek Coal Co., 13
FMSHRC 1226, 1230 (May 1991). The judge, however, denied Arch's motion to dismiss
Morgan's complaint solely because Morgan "apparently did not have the benefit of counsel until
his present attorney filed a Notice of Appearance." Order at 2 (Feb. 26, 1998). We find this
rationale legally insufficient, and on this question, would have remanded the case to him for
further analysis consistent with Commission precedent.
We also disagree with the majority's blanket statement that "Morgan's pursuit ofrelated
complaints through the Union indicates that he was not sleeping on his rights." Slip op. at 7. We
do not believe that the record clearly establishes that Morgan's grievance had anything to do with
his rights under the.Mine Act. This question, too, we would have remanded to the judge to
determine whether Morgan's grievance was sufficiently related to his later complaint to the
Secretary so as to constitute, in whole or part, good cause for his delay in filing his discrimination
complaint. In light of our decision to affirm the judge on the merits, however, any such remand
would be unnecessary.
1395

credited Cotter's denial that anyone told him to fail Morgan ortreat him differently from any
other applicant. 2 Id.
The Commission must exercise a considerable degree of deference when reviewing a
judge's credibility determinations. In re: Contests of Respirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1878 (Nov. 1995), aff'd sub nom. Secretary of Labor v. Keystone
Coal Mining Corp., 151F.3d1096 (D.C. .Cir. 1998). The Commission has noted that "the
general rule [is] that, absent exceptional circumstances, appellate courts do not overturn findings
based on credibility resolutions." Id. at 1881 n.80. Exceptional circumstances that would warrant
overturning a judge's credibility findings include where such findings are self-contradictory, based
on irrational criteria, or contradict the evidence. Id. As the Eleventh Circuit has explained,
"[s]ince the ALJ has an opportunity to hear the testimony and view the witnesses he is ordinarily
in the best position to make a credibility determination." Ona Corp. v. NLRB, 729 F.2d 713, 719
(11th Cir. 1984). In light of this, the Ona court concluded that "as a general rule courts are
bound by the credibility choices of the ALJ, even if they 'might have made different findings had
the matter been before [them] ... de novo. "' Id. at 719 (quoting Gulf States Mfrs., Inc. v. NLRB,
579 F.2d 1298, 1329 (5th Cir. 1978)). 3
We find no exceptional circumstances or any other basis for overturning the judge's
credibility resolutions here. The judge's findings are not self-contradictory or based on irrational
criteria. Furthermore, none of the record evidence contradicts the judge's credibility findings.
Indeed, in vacating these findings, the majority can point to no single piece of evidence that
contradicts the findings. Instead, the majority bases its ruling on what it sees as a "backdrop of
knowledge of, and hostility towards, Morgan's protected ... activities" (slip op. at 11), and the
inferences it is willing to draw from this "backdrop."

2

We also note that Morgan' s experience on the roof bolter, as that on the continuous
miner, was limited to relieving other miners when on iunch breaks or on overtime. 20 FMSHRC
at 571. Morgan admittedly failed the hands-on test on the miner. Id. at 573. We further note
that Morgan believed that he was entitled to a job at the Conant Mine, without regard to his job
skills. Tr. 102.
3

Cf Brock v. Roadway Express, Inc., 481 U.S. 252, 266 (1987) ("Final assessments of
the credibility of supporting witnesses are appropriately reserved for the administrative law judge,
before whom an opportunity for complete cross-examination of opposing witnesses is
provided."). See also Secretary of Labor v. Consolidation Coal Co., No. 98-1613, 1999 WL
335777, at *3 (4th Cir. May 27, 1999) ("'[w]e must defer to the ALJ's credibility determinations
... despite our perception of other, more reasonable conclusions from the evidence,"' (citations
omitted)) (affim1ing separate opinion of Commissioners Riley and Verheggen in Consolidation
Coal Co., 20 FMSHRC 227, 238-42 (Mar. 1998)); Metric Constructors, Inc., 6 FMSHRC 226,
232 (Feb. 1984) (when judge's finding rests on credibility determination, Commission will not
substitute its judgment for that of judge absent clear indication of error), a!f'd, 766 F.2d 469
(11th Cir. 1985).

1396

In considering the evidentiary effect of inferences, the Commission has held that judges
may draw inferences from record facts so long as those inferences are "inherently reasonable and
there [exists] a rational connection between the evidentiary facts and the ultimate fact inferred."
Garden Creek Pocahontas Co., 11FMSHRC2148, 2153 (Nov. 1989). While it is possible that
inferences could have been drawn from the record, it is for the trier of fact to decide between
reasonable inferences. See generally 9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2528 (2d ed. 1995). In addition, the effective use of inferences
encompasses the right not to draw them, as well as to draw them, in the appropriate
circumstances.
Here, in light of direct credited testimony from Cotter (and other Conant officials), the
judge did not credit some of Morgan's testimony and refused to draw certain inferences from the
record. The judge's rejection of inferences that are contravened by direct, credited (in several
instances, uncontradicted) testimony is not a basis for vacating his decision. We reject the
majority's insistence on drawing inferences in the absence of evidence,4 and suggesting to the
judge that he draw similar inferences that are contrary to testimony that he has seen, heard, and
credited. It is for the judge in the first instance, not the Commission on review, to make
inferences and findings based on record evidence. See Mid-Continent Resources, Inc., 6
FMSHRC 1132, 1139 (May 1984).
In sum, we are not willing to vacate the judge's explicit credibility rulings. To us, the
majority's decision appears to be premised upon an assumption that Cotter was not telling the
truth and that the judge was too myopic to see through his deceptive testimony in order to
comprehend what really happened at the Conant Mine. Taking a speculative approach and acting
on little more than a sympathetic hunch, our colleagues sweep away the judge's thorough review
of the evidence and his credibility findings, a move that lacks support in the record. Instead, the
majority relies on "the cumulative force of [the] evidence" (slip op. at 7-8) without reference to a
single specific piece of ~vidence that contradicts the judge's dispositive credibility findings.

4

Although our colleagues "dispute" this point (slip op. at 12), their opinion speaks for
itself. For example, they characterize as "suspect" Cotter's testimony that no Arch management
official ever approached him about Morgan. Slip op. at 9. The inference they appear to believe
and seek to have the judge consider is that Cotter somehow knew about Morgan's protected
activity, notwithstanding the ample and direct evidence to the contrary.
1397

The Commission cannot, and reviewing courts will not, ignore the fact that the trial judge
alone was able to observe the demeanor of Cotter and others· on the stand, and is thus uniquely
situated to evaluate the credibility of witnesses. We fear that under the majority' s emotional
approach, the Commission wili be all too ready to second guess its judges in future cases,
substituting its judgment for that of a judge. To avoid such confusion and disorder, we would
affirm the judge's decision here because it is supported by substantial, credible evidence. 5

James C. Riley, Commissioner

5

In light of our decision, we need not reach the questions raised by the majority regarding
whether the hands-on test was "a possible pretext for refusing to reinstate Morgan or whether
Morgan was the victim of disparate treatment in application of the test." Slip op. at 12.
1398

Distribution

Marco M. Rajkovich, Jr., Esq.
Robert I. Cusick, Esq.
Julie M. O'Daniel, Esq.
Wyatt, Tarrant & Combs
250 West Main St., Suite 1700
Lexington, KY 40507
Leonard D. Rice
Attorney at Law
404 South Washington Street
Du Quoin, IL 62832
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

1399

1400

ADMINISTRATIVE LAW JUDGE DECISIONS

OFFICE OF ADMINISTRATIVE LAW J UDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

November 19, 1999
CONTEST PROCEEDINGS

EXCEL MINING, LLC,
Contestant
v.

Docket No. KENT 99-17 1-R
Citation No. 7348723; 3/16/99

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

Docket No. KENT 99-172-R
Citation No. 7348724; 3/ 19/99
Docket No. KENT 99-173-R
Citation No. 7348725; 3/19/99
No. 2 Mine
Mine ID No. 15-09571

DECISION
Before:

Judge Melick

These cases are before me upon Contests filed by Excel Mining, LLC (Excel) pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the
"Act," to challenge three citations issued by the Secretary of Labor for alleged violations of her
respirable dust regulation at 30 C.F.R. § 70. lOO(a). On September 7, 1999, Excel filed a motion
for summary decision pursuant to Commission Rule 67, 20 C.F.R. § 2700.67, to vacate the three
citations arguing that they invoived a single dispositive issue of law. Under Commission Rule 67
"[a] motion for summary decision shall be granted only if the entire record, including the
pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows: (1) That
there is no genuine issue as to any material fact; and (2) That the moving party is entitled to
summary decision as a matter of law." For the reasons that follow, I conclude that the motion
shouid be granted .
The cited standard, 30 C.F.R. § 70. l 00(a), repeats the statutory language of section
202(b)(2) of the Act and governs miner exposure to respirable coal dust in underground coal
mines. It provides in relevant part that:
Each operator shall continuously maintain the average concentration of respirable dust in
the mine atmosphere during each shift to which each miner in the active workings ... is
exposed at or below 2.0 milligrams of respirable dust per cubic meter of air .... "
(emphasis added).

1401

Section 202(f) defines "average concentration" as:
"[a] determination which accurately represents the atmospheric conditions with
regard to respirable dust to which each miner in the active workings of a mine is
exposed (1) as measured, during the 18 months period following December 30.
1969, over a number of continuous production shifts to be determined by the
Secretary and the Secretary of Health and Human Services, and (2) as measured
thereafter, over a single shift only, unless the Secretary and Secretary of Health
and Human Services find, in accordance with the provisions of section 101 of this
Act, that such single shift measurement will not, after applying valid statistical
techniques to such measurement, accurately represent such atmospheric conditions
during such shift."
30 U.S.C. § 842(f). Section 202(f) of the Mine Act was carried over without significant
change from section 202(f) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §
801 et seq. (1976) (amended 1977) ("Coal Act").
On July 17, 1971, the Secretary of the Interior and the Secretary of Health, Education,
and Welfare published in the Federal Register, pursuant to section 202(f) of the Coal Act, a
finding that the sampling of mine atmosphere during a single shift would not accurately measure
the average concentration of respirable dust. This notice states in part:
Notice is hereby given that, in accordance with section 101 of the Act, and based
on the data summarized ... , the Secretary of the Interior and the Secretary of
Health, Education, and Welfare find that single shift measurement ofrespirable
dust will not, after applying valid statistical techniques to such measurement,
accurately represent the atmospheric conditions to which the miner is continuously
exposed.

In April 1971, a statistical analysis was conducted by the Bureau of Mines, using
as a basis the current basic samples for the 2, 179 working sections in compliance
with the dust standard on the date of the analysis .... [R]esults of the
comparisons .. [s]how that a single shift measurement would not, after applying
valid statistical techniques, accurately represent the atmospheric conditions to
which the miner is continuously exposed.
36 Fed. Reg. 13286 (July 17, 1971).
Following a period of public comment, the Secretaries affirmed this finding in another
Federal Register notice published on February 23, 1972. 37 Fed. Reg. 3833. Under the 1971
Finding, then, it was established that single shift sampling is not an accurate method for
determining average respirable dust concentrations for enforcement purposes. Since it is
undisputed that the citations herein were issued on the basis of respirable dust samples taken over
a single shift (Joint Stipulation No. 5) they cannot be used to assess compliance with the
Secretary's respirable dust regulations and the citations accordingly must be vacated.
1402

In Secretary ofLabor, Mine Safety and Health Administration v. Keystone Coal Mining
Corp., 16 FMSHRC 6 (1994), the Secretary had also tried to use single shift sampling for
enforcement purposes. Keystone contested citations the Secretary had issued based upon
respirable dust samples taken over a single shift. The Commission held that, in deciding to use
single shift samples for compliance determinations, MSHA had improperly attempted to rescind
the 1971 Finding without employing notice and comment rulemaking procedures, and thus
compliance determinations based on single shift samples were invalid. For this reason, the
citations were vacated. The Commission also specifically rejected in that case the Secretary's
argument that the 1971 Finding applied only to samples taken by operators but not to samples
taken by MSHA inspectors.
In reaching my conclusion herein I have not disregarded the Secretary's argument that the
instant cases are nevertheless outside the ambit of the 1971 Finding and the Keystone decision
because they involve the averaging of multiple samples taken over a single shift. I find no basis
for such an exception in the 1971 Finding. That finding clearly and unambiguously prohibits
single shift sampling whether such sampling takes the form of a single full-shift sample or an
average of multiple samples taken over a single shift. The Keystone decision reaffirms this
interpretation. Under the circumstances there is no need to resort to any consideration of
interpretational deference under the Chevron case, i.e., Chevron US.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984).

ORDER
Contestant's Motion for Summary Decision is granted and Citation Nos. 7348723,
7348724 and 7348725 are vacated.

Distribution:
Timothy M. Biddle, Esq., Crowell & Moring, LLP, 1001 Pennsylvania Avenue, N.W.,
Washington, D.C. 20004-2595 (Certified Mail)
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd.,
Suite 400, Arlington, VA 22202 (Certified Mail)
\mca

1403

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

December 7, 1999
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEYA 99-79
A. C. No. 46-01453-04249

v.
CONSOLIDATION COAL COMPANY,
Respondent

Humphrey No. 7 Mine

DECISION
Appearances:

Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of
Labor, Arlington, Virginia, on behalf of Petitioner;
Elizabeth S. Chamberlin, Esq., 1800 Washington Road, Pittsburgh,
Pennsylvania, on behalf of Respondent.

Before:

Judge Melick

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor
against the Consolidation Coal Company (Consol) pursuant to Section lOS(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act," alleging two violations of
mandatory standards and seeking civil penalties of $10,500.00 for those violations. The general
issue before me is whether Consol committed the violations as alleged and, if so, what is the
appropriate civil penalty to be assessed considering the criteria under Section l lO(i) of the Act.
Additional specific issues are addressed as noted.
Order No. 7102307, issued pursuant to Section 104(d)(2) of the Act, alleges a "significant
and substantial" violation of the standard at 30 C.F.R. § 75.400 and charges as follows: 1
Section 104(d)(2) of the Act provides as follows:

If a withdrawal order with respect to any area in a coal or other mine has been issued
pursuant to paragraph (1), a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent inspection the existence in such
mine of violations similar to those that resulted in the issuance of the withdrawal order under
paragraph (1) until such time as an inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar violations, the provisions of
paragraph (1) shall again be applicable to that mine.
1404

On the 2 north panel, from crosscuts 4 to 3, 3 to 2 and 2 to 1 entries, coal
spillage has not been cleaned during the normal mining cycle. The spillage
measures from 6 inches to 24 inches deep. This spillage is along the ribs and in the
center of the crosscuts. From the 6 to 7 entries and down the No. 7 entry for 90
feet and down the No. 6 entry for 90 feet, loose coal spillage measuring up to 36
inches deep along the ribs and in the center of said entries. The operator's cleanup program is not being followed on the 2 north panel.
The cited standard, 30 C.F.R. § 75.400, provides that "coal dust, including float coal dust
deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned
up and not be permitted to accumulate in active workings, or on diesel-powered electric
equipment therein."
Timothy Reseter has been an inspector for the Mine Safety and Health Administration
(MSHA) since 1992. He has an additional 20-years experience as an underground miner with the
last ten years as a foreman. On October 27, 1998, he reported to the Humphrey No. 7 Mine to
conduct an inspection.2 He examined the preshift examination records for the 2 Mains North
Section between 6:45 a.m. and 7:30 a.m. and found that no spillage had been reported. Reseter
thereupon proceeded to inspect the 2 Mains North Section.
This was a continuous miner section with seven entries and three working shifts. The day
and afternoon shifts were producing shifts, and the midnight shift was a maintenance shift in
which no coal was mined. The left side of the section consisted of entries one through four, and
the right side of the section consisted of entries five through seven. As of the morning of October
27, 1998, the section had been roof bolted except for a small area in the crosscut between the No.
2 entry and the No. 1 entry, and part of the No. 7 entry in by the last open crosscut.
According to Inspector Reseter there were coal accumulations on the left side of the
section in the last open crosscuts from the No. 4 to No. 3 entry, No. 3 to No. 2 entry, and No. 2
to No. 1 entry, from rib to rib. The accumulations on the left side of the section were measured at
3 to 24 inches deep. In addition, two places on the left side had 36 inches of coal spillage where
the comers h~d been bulldozed. Acting mine foreman Charlie Harper confirmed that five comers
had been bumped on the left side of the section resulting in spillage up to two feet deep.
According to Reseter, the spillage on the left side of the section was mostly dry with little rock
dust on top.
On the right side of the section, Reseter found coal spillage from rib to rib in the last open

2

It has been stipulated that the Humphrey No. 138 Mine referenced by other
witnesses corresponds to the same area as the Humphrey No. 7 Mine described herein.
1405

crosscuts from the No. 5 to the No. 6 entry, and from the No. 6 entry to the No. 7 entry. Reseter
also found accumulations of up to 36 inches in the No. 6 and No. 7 entries for a distance of 90
feet outby the last open crosscuts. Reseter testified that these accumulations on the right side
were dry except for the area 90 feet outby the last open crosscuts. There seems to be no dispute
that the coal accumulations found by Reseter had been created by mining done on the afternoon
shift and the day shift of the previous day.
I find inspector Reseter's testimony concerning the size and consistency of the cited
accumulations to be completely credible and sufficient to sustain the violation as charged. In
reaching this conclusion I have not disregarded the testimony of Consol's witnesses that much of
the cited coal spillage was wet. I also note however that Jimmy Brock, then assistant mine
superintendent, testified that although much of the the cited coal was mixed with mud and was
wet in certain areas, there was another layer of apparently dry coal 3 to 6 inches deep on top of
that in some areas. Brock also acknowledged that not all the entries were wet. However even
assuming, arguendo, that the cited coal accumulations were at least partially wet, the Commission
has held that that does not render it incombustible. See Utah Power & Light Company, 12
FMSHRC 905 at 969 (May 1990) and Black Diamond Coal Mining Co.,
7 FMSHRC 1117 (August 1985).
The Secretary also alleges that the violation was "significant and substantial." A violation
is properly designated as "significant and substantial" if, based on the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature. Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,3-4 (January 1984), the
Commission explained:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety standard, (2) a discrete safety
hazard -- that is, a measure of danger to safety -- contributed to by the violation,
(3) a reasonable likelihood that the hazard contributed to will result in an injury,
and (4) a reasonable likelihood that the injury in question will be of a reasonably
se1ious nature.

See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), affg 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies
criteria).
The third element of the Mathies formula requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which there is an injury (U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such injury must be
evaluated in terms of continued normal mining operations without any assumptions as to
abatement. U.S. Steel Mining Co. , Inc., 6 FMSHRC 1573, 1574 (July 1984); See also Halfway,

1406

Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).

In arguing that the violation herein was "significant and substantial" the Secretary relies
upon the opinion of Inspector Reseter, that it was reasonably likely for injuries to occur as result
of shuttle car movement through the cited area damaging electrical cables lying along the rib line.
According to Reseter, a damaged electrical cable could result in a short circuit and ignite
pulverized coal. He added that if a fire should occur then smoke inhalation could result in
fatalities. The Secretary argues that it is reasonable to infer that, if normal mining operations
continued, electrical cables would be damaged. I agree with the Secretary's position which is
supported by credible testimony and find that the violation was "significant and substantial" and of
high gravity.
The Secretary also alleges that the violation was the result of the Respondent's
"unwarrantable failure" to comply with the cited standard. In Emery Mining Corp., 9 FMSHRC
1997, 2004 (December 1987), the Commission determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence. This determination was derived,
in part, from the plain meaning of "unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected or appropriate action"), and "negligence" (the failure to use
such care as a reasonably prudent and careful person would use, and is characterized by
"inadvertence," "thoughtlessness," and "inattention"). 9 FMSHRC at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference" or a "serious lack of reasonable care." 9 FMSHRC at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 (February 1991).

In this regard, I have considered the large amount of accumulations and the significant
history of the same type of violation on September 4, 1998, June 10, 1998, and July 29, 1998.
These circumstances clearly warrant a finding of an aggravated omission constituting more than
ordinary negligence and a serious lack of reasonable care. In reaching this conclusion I have not
disregarded the testimony of the Respondent's witnesses that they had been unable to clean up the
cited material because of equipment breakdowns and that they were in fact performing manual
clean up when the inspector arrived. However, in light of the time during which the
accumulations had existed, i.e., since the previous afternoon shift on October 26 1h and since no
coai had been produced on the midnight shift nor on the day shift on October 27 1h up to the time
the inspector saw the violative conditions, I find the alleged mitigating factors insufficient. Since
there is no dispute that there was no intervening clean inspection prior to the issuance of Order
No. 7102307, it must be affirmed as a "Section 104(d)(2)" order.
Order No. 7102308, also issued pursuant to Section 104(d)(2) of the Act, alleges a
"significant and substantial" violation of the standard at 30 C.F.R. § 75.360 and charges as
follows:

1407

The preshift exam conducted on 10/27/98, from the midnight shift to the
day shift was not complete in that the severe coal spillage at the face area on 2
north panel was not entered in the book. This coal spillage occurred from the
mining cycle from the afternoon shift on 10/26/98. Order No. 7102307 was
issued for said spillage. Also no dates, times or initials were found for the
midnight shift at the face area. 3
The cited standard, 30 C.F.R. § 75.360, provides in subsection {f), as relevant hereto, that
"a record of the results of each preshift examination, including a record of hazardous conditions
and their locations found by the examiner during each examination ... shall be made on the
surface before any persons, other than certified persons conducting examinations required by this
subpart, enter any underground area of the mine."
I find that the failure of preshift examiner Ronnie Jarrell to have reported the
accumulations in the preshift examiner's book constituted a violation of 30 C.F.R. § 75.360 as
charged in Order No. 7102308. It is undisputed that the accumulations of coal at issue were
created by mining that occurred before the midnight shift of October 27, 1999, and before Ronnie
Jarrell would have conducted his preshift examination. Indeed, Jarrell himself admitted that he
observed accumulations of coal spillage when he performed his preshift examination. He
maintained only that he did not record the accumulations of coal because he believed they were
not hazardous. As previously noted, I accept the credible expert testimony of Inspector Reseter
as a "reasonably prudent person" regarding the hazardous nature of these particular
accumulations.
This violation was also "significant and substantial" and of high gravity. The preshift
examination and the reporting thereafter is intended, inter alia, to prevent hazardous
accumulations from developing and to warn the miners on the oncoming shift about potentially
hazardous conditions. By not reporting the hazardous accumulations of coal in the preshift book,
the miners on the day shift were not placed on notice of these hazardous conditions and
management could have overlooked or have been less inclined to clean up such unreported
accumulations. It is reasonably likely for these consequences to lead to the serious injuries or
fatalities previously described.
I also find that this violation was the result of "unwarrantable failure" and high
negligence. Because of the massive size of the cited accumulations it cannot be inferred that the
preshift examiner could have reasonably and in good faith concluded that these conditions were
not hazardous. His failure to have reported these conditions was therefore the result of a serious
lack ofreasonable care and "unwarrantable failure." Since there is no dispute that there was no

3

At hearing the Secretary represented that she is not charging as a separate
violation the failure of the mine examiner to have noted the date, time and his initials at the face
area for the midnight shift.
1408

intervening clean inspection prior to the issuance of this order, it must likewise be affirmed as a
"Section 104(d)(2)" order.
Considering Consol's large size, its history of violations in evidence, its undisputed good
faith abatement as well as the previous high gravity and negligence findings I conclude that the
Secretary's proposed penalties are appropriate.
ORDER
Order Nos. 7102307 and 7102308 are affirmed. Consolidation Coal Company is hereby
directed to pay civil penalties of $5,500.00 and $5,000.00, respectively for the violations charged
in Order No. 7102307 and Order No. 7102308, within 40 days of the date of this decision.

Distribution:
Daniel M . Barish, Esq., Office of the Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd.,
Suite 400, Arlington, VA 22202 (Certified Mail)
Elizabeth S. Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh,
PA 15241 (Certified Mail)
\mca

1409

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

December 8, 1999
BLACK DIAMOND CONSTRUCTION
WC.,
Applicant
v.

EQUAL ACCESS TO JUSTICE
PROCEEDING

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

Formerly WEVA 98-1

Docket No. EAJ 98-1

DECISION ON REMAND
Before: Judge Barbour
On November 3, 1999, the Commission affirmed the administrative law judge's decision
in Black Diamond Construction, Inc., 20 FMSHRC 1169 (October 1998) (ALJ) and remanded
the case to provide the Applicant the opportunity to amend its Equal Access to Justice Act
(EAJA) application to include the reasonable fees and expenses it incurred in defending
successfully its EAJA award before the Commission (21 FMSHRC _ _,Docket No. EAJ 9801(November3, 1999, slip op. at 12)). (In the underlying decision the judge awarded the
Applicant fees and expenses of$14,390.25.)
Pursuant to the remand, the judge ordered the parties to confer and to attempt to reach an
agreement upon the amount of the fees and expenses to which the Applicant was entitled. If the
parties were unable to agree, the judge requested that the Applicant amend its application
specifying its claims and that it support the amended application with full documentation as
required by Commission Rule 205 (29 C.F.R. § 2704.205).
Counsels have conferred as ordered, and counsel for the Applicant reports the parties have
agreed that a total amount of $29,624.29 in fees and expenses will be paid by the Respondent to
the Applicant. Thus, in addition to the original award of $14,390.25, the parties have agreed the
Applicant is entitled to $15,234.04 in fees and expenses incurred defending its EAJA award.

ACCORDINGLY, the Secretary is ORDERED to pay Black Diamond a total award of
$29,624.29 within 30 days of the date of this decision. Upon receipt of full payment, this
proceeding is DISMISSED.

_uv-./,·d'&~~

David Barbour ~
Administrative Law Judge
1410

Distribution:
Julia K. Shreve, Esq., Jackson & Kelly, P. 0 . Box 553, Charleston, WV 25322 (Certified Mail)
Jack Powasnik, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Room 400, Arlington, VA 22203 (Certified Mail)
nt

1411

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

December 15, 1999
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 99-136-M
A. C. No. 35-03308-05511
Applegate Aggregates

APPLEGATE AGGREGATES, INC.
Respondent

DECISION
Appearances: Paul A. Belanger, Conference and Litigation Representative, U.S. Department of
Labor, Mine Safety and Health Administration, Vacaville, California, for
Petitioner;
E. W. Mignot, President, Applegate Aggregates, Inc., Grants Pass, Oregon,
Pro Se.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor, acting through her Mine Safety and Health Administration (MSHA), against Applegate
Aggregates, Inc., pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815. The petition alleges five violations of the Secretary' s mandatory health and safety
standards and seeks a penalty of $312.00. A hearing was held in Medford, Oregon. For the
reasons set forth below, I affirm the citations and assess a penalty of $312.00.

!Background
Applegate operates a shale crushing plant in Josephine County, near Grants Pass, Oregon.
It generally consists of a crusher with associated conveyor belts, screens and stockpi les. Most of
the time, there are no more than four employees at the site.
MSHA Inspector Larry Orton conducted an inspection of the crushing plant on February
3, 1998. As a result of this inspection, he issued five citations, all of which are contested by the
Respondent. The citations will be discussed seriatim.

1412

Findings of Fact and Conclusions of Law
Citation No. 4374008
This citation alleges a violation of section 56.12028 of the Secretary's Regulations, 30
C.F.R. § 56.12028, because: "The continuity and resistance tests of the grounding system at the
plant has [sic] not been done or documented in the last year." (Govt. Ex. 1.) Section 56.12028
requires that: "Continuity and resistance of grounding systems shall be tested immediately after
installation, repair, and modification; and annually thereafter. A record of the resistance measured
during the most recent tests shall be made available on a request by the Secretary or his duly
authorized representative."
Inspector Orton testified that he asked Dan Huff, the employee accompanying him on the
inspection, if there was a record of the most recent resistance measurements. He said that Huff
looked around and could not find anything. E.W. Mignot, President of Applegate, stated that he
had no idea whether the testing had been performed. The citation was abated on the inspector's
return trip when documentation that the testing had been performed was shown to him.
Based on this evidence, I conclude that the Operator violated the regulation as alleged.
Citation No. 4374010
This citation charges a violation of section 56.14103(b), 30 C.F.R. § 56.14103(b),
because:
The windshields on the 980 Cat Front-end loader were
cracked in several areas obscuring the operator's visibility. The
unit is used to feed the plant, load trucks and stock pile materials.
The area is exposed to outside conditions and is congested. The
unit is used on a daily basis when the plant operates. Employees
are in and out of the plant area when the plant operates.
(Govt. Ex. 2.) Section 56. 14103(b) provides that:

If damaged windows obscure visibility necessary for safe
operation, or create a hazard to the equipment operator, the
windows shall be replaced or removed. Damaged windows shall be
replaced if absence of a window would expose the equipment
operator to hazardous environmental conditions which would affect
the ability of the equipment operator to safely operate the
equipment.

1413

Inspector Orton testified that it appeared that a rock had struck the bottom of the center
front window of the loader, causing cracks to radiate up the window. He said that visibility for
the loader operator is restricted by the bucket in the front of the loader and the size of the loader
and that with the distortion caused by the cracks he considered it unsafe to operate the loader. He
related that he terminated the citation on his next visit. Dan Sinclair, a mechanic for the operator,
advised him that the window had been replaced. After visually verifying this, Orton terminated
the citation.
Mr. Mignot claimed that the window had not been replaced. He presented three pictures
of a front-end loader, (Resp. Exs. A, B and C), that he maintained was the loader in question and
which did not appear to show a crack in the front window. The inspector testified that the loader
in the pictures "look[ ed] to be the same" one as the one he had cited. (Tr. 82.)
I conclude that the Respondent violated the regulation. In reaching this conclusion, I
accept the testimony of the inspector over that of the operator. Mr. Mignot was not present
during the inspection. Therefore, he did not observe the loader when it was inspected, nor was he
in a position to say that the pictures he offered into evidence were of the loader that was
inspected. No one from the company, who was present during the inspection or during the
citation's termination, testified. It was further apparent at the hearing that Mr. Mignot resented
having his operation inspected and bore some animus toward the inspector. (See, e.g. Tr. 33, 77,
98, 138.)

Signtficant and Substantial
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(l) of the Act 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, 861F.2d99, 10304 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984). The question of
whether a particular violation is significant and substantial must be based on the particular facts
surrounding the vio.lation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 1007 (December 1987).

1414

In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying
violation of a safety standard; (2) a distinct safety hazard, a measure of danger to safety,
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious
nature.

The inspector testified that he considered the violation to be S&S because the loader was
operating in a congested area, with people and haulage trucks going in and out of the area. He
opined that combining that with obscured visibility made a serious injury a likely event. The
Respondent presented no evidence on this issue. I agree with the inspector and conclude that the
violation was "significant and substantial."
Citation No. 434011
This citation alleges a violation of section 56.14132(a), 30 C.F.R. § 56.14132(a), in that:
The back-up alarm on the 980 Cat Front-end loader did not
function. To warn employees in the area that the unit is backing up.
[Sic] The unit is used around the plant area to load trucks, feed the
plant, and stock pile materials. The area is exposed to outside
condition [sic) and the area is congested. There are employees in
and out of the area. The unit is used on a daily basis when plant
[sic] operates.
(Govt. Ex. 3.) Section 56.14132(a) requires that: "Manually-operated horns or other audible
warning devices provided on self-propelled mobile equipment as a safety feature shall be
maintained in functional condition."
The inspector testified that he first saw the loader in operation and could not hear any
back-up ala1m. To be sure he went over to the machine, had the operator put it in reverse and
back up several times. There was no alarm. Mr. Mignot testified that the alarm had worked
"periodically'' orior to the citation and that it worked fine after the dirt was washed off of it. (Tr.
102.)
Obviously, the aiarm was not maintained in functional condition. Accordingly, I conclude
that the company violation section 56. l4132(a) as alleged.
Significant and Substantial
The inspector found this violation to be "significant and substantial" for the same reasons
he found the previous violation to be S&S. I concur and conclude that the violation was
"significant and substantial."

1415

Citation No. 4374014
This citation charges a violation of section 56.12032, 30 C.F.R. § 56.12032, since: "The
junction box on the 480 V. drive motor for the 11/ 2 inch conveyor was not provided with a cover
to protect the splice wires and prevent water from entering the motor. These condition [sic]
create a shock and electrocution hazard. The motor is exposed to outside condition [sic]. It is
about 15 feet above ground level." (Govt. Ex. 4.) Section 56.12032 requires that: "Inspection
and cover plates on electrical equipment and junction boxes shall be kept in place at all times
except during testing or repairs."
Inspector Orton testified that the cover was not on the junction box on the drive motor for
the conveyor and that neither testing nor repairs were being performed. Mr. Mignot testified that
his electrician told him that the cover had vibrated off of the box. Based on this evidence, I
conclude that the section was violated.
Citation No. 4374018
This citation alleges a violation of section 56.18010, 30 C.F.R. § 56.18010, because: "No
one at the mine had a current First Aid card." (Govt. Ex. 5.) Section 56.18010 requires, in
pertinent part, that: "An individual capable of providing first aid shall be available on all shifts.
The individual shall be currently trained and have the skills to perform patient assessment and
artificial respiration; control bleeding; and treat shock, wounds, bums, and musculo-skeletal
injuries."
Inspector Orton testified that none of the employees at the mine had first aid cards. He
further stated that he inquired of all of them if they were currently trained in first aid and that none
of them was. Mr. Mignot testified that he might have one or two people trained as·required by
'i:he reguiation, but that they were located at another site, six to eight miles away from the
crushing plant.
I find that the company did not have an individual capable of providing first aid available
at the mine. Assuming that there were one or two individuals with the required training, their
iocation six to eight miles from mine would not meet the regulation's requirement of availability.
The local rescue squad could be summoned in the same time that these individuals could. That
clearly does not provide the type of "first aid" required by the regulation. Accordingly, I conclude
that the Respondent violated section 56.18010 as alleged.
Civil Penalty Assessment
The Secrefary has proposed penalties of $312.00 for these violations. 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 1lO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg

1416

Stone Co. v. F1'1SHRC, 736 F.2d 1147, 1151 (7 1h Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).
In connection with the penalty criteria, the parties have stipulated that the proposed
penalty will not adversely affect the Respondent's ability to remain in business, that the operator
demonstrated good faith in rapidly abating the violations and that Applegate Aggregates is a small
operation. (Tr. 23-27.) The Assessed Violation History Report, (Govt. Ex. 6), shows that in the
two years prior.to the inspection in this case, the Respondent had not been cited for any violations
of the regulations. Therefore, I conclude the its history of violations is very good.
The gravity of Citation Nos. 4374010 and 4374011 is fairly serious since a serious injury
could have resulted from either violation. The gravity of the other three violations is relatively
minor as the inspector found that there was little or no likelihood of an injury occurring from
them. I find, as did the inspector, that the company was moderately negligent in all of the
violations, since they were rather obvious.
Taking all of these factors into consideration, I conclude that the penalty proposed by the
Secretary is appropriate. Accordingly, I impose the following penalties:
Citation No. 4374008
Citation No. 4374010
Citation No. 4374011
Citation No. 4374014
Citation No. 4371018
Total

$ 50.00
$ 81.00
$ 81.00
$ 50.00
$ 50.00
$312.00

Order
The five citations in this case are AFFIRMED. Applegate Aggregates, Inc., is
ORDERED TO PAY a civil penalty of $312.00 within 30 days of the date of this decision.

d~~~

T. T~ddH;d7n' ~' ~
Administrative Law Judge

Distribution:
Paul A. Balanger, Conference and Litigation Representative, U.S. Department of Labor, MSHA,
2060 Peabody Road, Suite 610, Vacaville, CA 95687 (Certified Mail)
Mr. E.W. Mignot, Applegate Aggregates, Inc., 2660 N.W. Vine Street, Grants Pass, OR 97526
(Certified Mail)

1417

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

December 17, 1999
CIVIL PENALTY PROCEEDING

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

Docket No. VA 99-19-M
A.C. No. 44-05172-05531
Lynnwood Farm Plant - VA

WEST SAND & GRAVEL CO., INC.,
Respondent

DECISION
Appearances: Daniel M. Barrish, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Jerry W. Kilgore, Esq., Sands, Anderson, Marks & Miller, PC, Richmond,
Virginia, for Respondent.
Before:

Judge Bulluck

This proceeding is before me upon a Petition for Assessment of Penalty filed by the
Secretary of Labor, through the Mine Safety and Health Administration ("MSHA"), against West
Sand & Gravel Company ("WS&G"), pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. ("the Act").
A hearing was held in Harrisonburg, Virginia. The post-hearing briefs are of record. For
the reasons set forth below, the citation shall be AFFIRMED.

I. Stipulations
The parties stipulated to the following facts:
1. The Administrative Law Judge and the Federal Mine Safety and Health Review
Commission have jurisdiction to hear and decide this civil penalty proceeding, pursuant to section
105 of the Federal Mine Safety and Health Act of 1977.
2. West Sand & Gravel Company, Incorporated, is the owner and operator of the
Lynwood Fam1 Plant, Virginia.
1418

3. _Operations of the Lynwood Farm Plant, Virginia, are subject to the jurisdiction of the
Act.
4. The maximum penalty which could be assessed for this violation, pursuant to 30
U.S.C. § 820(a), will not affect the ability of West Sand & Gravel Company, Incorporated, to
remain in business.
5. MSHA Inspector Joseph Beasley was acting in his official capacity as an authorized
representative of the Secretary of Labor when he issued Citation No. 77 12465.
6. A true copy of Citation No. 7712465, along with all appropriate continuation forms
and modifications, was served on West Sand & Gravel Company, Incorporated, or its agent, as
required by the Act.
7. Citation No. 7712465 is authentic and may be admitted into evidence for the purpose
of establishing its issuance and not for the purpose of establishing the accuracy of any statements
asserted therein.
8. Citation No. 7712465 has not been the subject of previous review proceedings.
9. West Sand & Gravel violated§ 56.14100(b), although West Sand & Gravel challenges
the gravity of Citation No. 7712465 and the "unwarrantable" classification by MSHA.

II. Factual Background
On June 30, 1998, while conducting a Triple A inspection of WS&G's Lynwood Farm
Plant, MSHA Inspector Joseph Bosley observed the Chevrolet Scotesdale Unit 326 welding truck
being driven around front-end loaders and pedestrians, with the left front (driver' s side) tire
leaning in toward the engine compartment (Tr. 17-21, 27, 43; Exs. P-lA, P-IC). Inspector
Bosley took tape measurements of both front tires, from the inside fender well to the outside top
of each tire, finding the distance on the left to be 3.5 inches greater than on the right, and also
observed that the left front tire had been rubbing the inside of the fender well (Tr. 20-26; Exs. PIB, P-2). The inspector also raised the hood of the truck and, upon examination from above,
observed that the left side upper control arm bolts, connecting the control arm hinge pin to the
frame, were loose and backing away from the frame (Tr. 30, 32-34, 73-74; Ex. P-2).
As a result of his observations, Inspector Bosley had a conversation with the primary
driver of the truck, welder Charles Holloway, who told Bosley that he had been reporting the
condition of the tire in daily pre-shift examination records since mid-May (Tr. 27-28, 253; Ex. P2, P-13). While still on site, Inspector Bosley also had a telephone discussion with the foreman,
Aggie Selmon, who admitted having known of the truck's condition for six weeks (Tr. 32, 40,
212, 222-23, 239-40; Ex. P-2). Furthermore, according to his field notes, the inspector was told

1419

that the welding truck al.so had bad springs and shocks, although he was unable to recall the
source of that information when he testified (Tr. 32-33, 41-42; Ex. P-2). Consequently, Inspector
Bosley issued 104(d)(l) Citation No. 7712465, charging a violation of 30 C.F.R. §56.14100(b),
describing the violation as follows:
The Chevrolet Scotesdale welding truck Unit 326 Serial
#1GBHC34J5DV105564 the left front wheel was leaning in rubbing the inside of
the fender well. This condition could result in loss of steering if not corrected.
When checked the control arm had the bolts backing out. When the inspector ask
[sic] the welder he stated this condition had existed since the middle of May, he
was reporting it on his pre-shift inspection. When the foreman Aggie Selmon was
asked he stated he knew this had existed for six weeks. This truck is used
throughout the plant and mine site around heavy equipment and travels the pit
roads. This violation is an unwarrantable failure to comply with a mandat01y
standard
(Ex. P-4). Later that same day, independent contractor David Weade repaired the welding truck
by replacing a broken coil spring, and by replacing existing shims with nuts welded to the bracket
(Tr. 63-65, 236; Ex. P-5A).

III. Findings of Fact and Conclusions of Law
A. Fact of Violation
30 C.F.R. §56.141 OO(b) provides that: "Defects on any equipment, machinery, and tools
that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to
persons."
In discussing the broad applicability of the generally worded predecessor standard, 1 the
Commission has emphasized that the standard must be construed in consonance with the
fundamental protective ends of the Act, so that the "integrity of a machine is not defined solely by
its proper functional performance but must also be related to the protection of miners' health and
safety." Ideal cement Co., 12 FMSHRC 2409, 2414- 15 (November 1990) (Ideal I).

In order to establish a violation of this standard, the Secretary must establish that 1) there
was a defect in the Chevrolet Scotesdale Unit 326 welding truck; 2) the defect affected safety; and
3) the defect was not corrected in a timely manner to prevent the creation of a hazard.
Respecting the first element of this analysis, the Commission has previously adhered to the
ordinary and mining industry usage of the term "defect" as a "fault, a deficiency, or a condition

1

30 C.F.R. § 56.9002 (1987) provided that: "Equipment defects affecting safety shall be
corrected before the equipment is used."
1420

impairing the usefulness of an object or a part. Webster's Third New International Dictionaty
(Unabridged) 591 (1971); U.S. Department of Interior, Bureau of Mines, A Dictionary of
Mining, Mineral and Related Terms 307 (1968)." Allied Chemical Corporation, 6 FMSHRC
1854, 1857 (August 1984). Moreover, the Commission has held that a missing, as well as a
defective component, may constitute an equipment defect, and the defect or missing component
need not affect the operation of the equipment. 12 FMSHRC 2415; 6 FMSHRC 1857.
Respecting the second element, the Commission has repeatedly stated that the "phrase
'affecting safety' in the standard has a wide reach and the 'safety effect of an uncorrected
equipment def~ct need not be major or immediate to come within that reach." Ideal Cement Co.,
13 FMSHRC 1346, 1350 (September 1991) (Ideal II), citing Ideal I, 12 FMSHRC 2415, citing
Allied Chemical Corp., 6 FMSHRC 1854, 1858. Recognizing that adequate notice of the
conduct prohibited by the standard must be accorded to the operator, the Commission has
required that the evidence be evaluated in light of what a "reasonably prudent person, fami liar
with the mining industry and the protective purpose of the standard, would have provided in order
to meet the p~gtection intended by the standard." 12 FMSHRC 2415, 2416, citing Canon Coal
Co., 9 FMSHRC 667, 668 (April 1987); Quinland Coal, Inc., 9 FMSHRC 1614, 1617-18
(September 1987). The Commission has provided further guidance on application of this
objective test by recognizing "that the various factors that bear upon what a reasonable person
would do include safety standards in the field, considerations unique to the mining industry, and
the circumstances at the operator's mine." BHP Minerals International, Inc., 18 FMSHRC 1342,
1345 (August .1996), citing US. Steel Corp., 5 FMSHRC 3, 5(January1983).
It is clear from the evidence that the condition of the welding truck's left front tire
constituted a defect that affected safety, and having existed for at least six weeks, a defect that
was not corrected in a timely manner. Indeed, WS&G has conceded the violation, but disputes
that it was "significant and substantial," or the result of its "unwarrantable failure" to comply with
the standard.

B. Significant and Substantial
Section l 04(d) of the Act designates a violation "significant and substantial" ("S&S")
when it is "of ~uch a 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 the violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set forth the
four criteria that the Secretary must establish in order to prove that a violation is S&S under
National Gypsum: 1) the underlying violation of a mandatory safety standard; 2) a discrete safety
hazard -- that is, a measure of danger to safety -- contributed to by the violation; 3) a reasonable
1421

likelihood that the hazard contributed to will result in an injury; and 4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. See also Buck Creek Coal, Inc.
v. FMSHRC, 52 F. 3d 133, 135 (71h Cir. 1995); Austin Power, Inc. v. Secretary, 861 F. 2d 99,
103-04 (5 1h Cir. 1988), ajf'g9 FMSHRC 2015, 2021(December1987) (approving Mathies
criteria). Evaluation of the third criterion, the reasonable likelihood of injury, should be made in
the context of"continued mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984). Moreover, resolution of whether a violation is S&S must be based "on the particular
facts surrounding the violation." Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1998).
Inspector Bosley determined that the violation was S&S. He testified that continued use
of the welding truck in its defective condition could result in the tire blowing out or acutely
flopping to the outside, either of which condition would result in loss of the driver's ability to
steer and stop the vehicle (Tr. 49-56). The driver's loss of control, he opined, was reasonably
likely to result in serious injury to himself or others, because the welding truck could be thrown
into the path of, and run over by a larger haul truck or loader, or could strike a nearby pedestrian
miner (Tr. 43-44, 48, 51-52, 56-60). The inspector acknowledged that he did not test drive the
truck, that he was unable to estimate how long it would have taken the tire assembly to
completely fail, and that the left front tire was not in bad condition (Tr. 60, 75-76, 196-200).
Ronald Medina, a mechanical engineer in MSHA's Approval and Certification Center,
Mine Equipment Branch, appeared as an expert for the Secretary. Medina testified that, in
forming his conclusion that operating the truck in its defective condition posed a hazard to safety,
he did not inspect the welding truck, but examined the citation, the inspector's field notes and
photographs, the shop manual for the truck, and the letter of the mechanic who made the repairs
(Tr. 102-03, 181, 271-73). He identified shims missing from the bolts and a broken spring as the
cause of the left tire leaning into and nibbing the fender well (Tr. 125-26). 2 This condition, he
testified, would tend to pull the truck significantly out of alignment, toward the direction of the
iean, and would diminish the tire's traction in bumpy or muddy conditions on the dirt and gravel
haul road upon which it traveled, which has the effect of decreasing the driver's steering ability
(Tr. 129-130, 134-35, 138-41). Consistent with Inspector Bosley's testimony, Medina opined
that continued operation of the truck, as cited, could reasonably be expected to result in tire blowout, caused by intermittent rubbing between the tire and the fender well or, tire flop-out, should
the upper control arm completely detach from the frame -- either of which condition amounts to
diminished ability to steer and control the vehicle (Tr. 125-26, 128-32, 145-46, 177-80, 273-80).
Medina also asserted that he was unable to estimate how long it would have taken the nuts to
work loose from the bolts, thereby freeing the upper control arm from the frame (Tr. 175-76).
=vtaintenance mechanic Charles Holloway, daily driver of the welding truck, testified that
the truck was operated six days a week, that he drove it twice daily on the haul road to the pit,

2

A shim is a spacer between two surfaces that is added or subtracted to align a vehicle
(Tr. 118).

1422

and that he.would normally pass two or three larger trucks while enroute (Tr. 264, 267). He
maintained that the leaning left tire did not seem to affect steering, although he acknowledged
that, when he turned sharply on occasion, or hit a rock or "chuck hole, "the tire would bounce up
against the fender (Tr. 251-52, 265).
Foreman Aggie Selmon testified that he usually drove the welding truck once a month, on
Holloway's off-duty Saturday, and although he opined that the truck was safe to operate with the
leaning tire, he acknowledged that it was driven on bumpy dirt and gravel roads, along with Mack
trucks and front-end loaders, that it' s condition did "look bad," and that the tire would rub the
fender well when the truck was on a slant or hit a pothole (Tr. 207, 210-11, 213, 227-28, 23738).
The evidence, evaiuated in terms of continued mining experience, indicates that the left
front tire was in good condition and, therefore, unlikely to blow-out, and that there is no way of
pinpointing how long the bolts would continue to hold the hinge pin to the frame. It has also been
established that the welding truck was heavily used on uneven, sometimes muddy, dirt and gravel
surfaces, and that the tire would bounce up and hit the fender well. WS&G's position that the
leaning tire had no effect on the ability to steer and stop the truck is not convincing, in light of all
the evidence. Therefore, having found that the welding truck, with diminished steering and
braking capacity, operated around much heavier equipment and pedestrians, on uneven and
muddy gravel surfaces, I find it reasonably likely that the truck driver could suffer serious injury
from being struck by another vehicle, or could hit and seriously injure a pedestrian in his path.
Therefore, I find that the violation was S&S.

C. Unwarrantable Failure
"Unwarrantable failure" is aggravated conduct consisting of more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001(December1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or a serious lack ofreasonable care. Id. at 2001-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194 (February 1991).
The Commission has provided a practical framework in which to analyze whether a
violation resulted from unwarrantable failure. Among the factors to be considered are "the
extensiveness of the violation, the length of time the violative condition has existed, the operator's
efforts to eliminate the violative condition, and whether the operator has been placed on notice
that greater efforts are necessary for compliance." Mullins and Sons Coal Co., 16 FMSHRC 192,
195 (February 1994). The culpability determination required for a finding of unwarrantable
failure is similar to gross negligence or recklessness. It is more than a "knew or should have
known" test. Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 (October 1993).
Charles Holloway testified that he first became aware of the leaning tire in April, during
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his pre-shift·examinations of the truck, and that he continued to examine and report the condition
daily, until the issuance of the citation on June 30th (Tr. 250, 256). The pre-shift examination
reports in evidence begin on May 1, 1998 (Ex. P-13). Holloway and Aggie Selmon both testified
that they were unaware of the broken coil spring, until the truck was repaired by David Weade on
June 30th, although Selmon admitted knowledge that the springs were weak (Tr. 216, 229, 252,
258, 263). Holloway and Selmon also testified, with some variation, th at, upon discovery that
the upper A-frame bolts had worked loose, they aligned the wheel by adding another shim, retightening the bolts, and tack-welding the nuts onto the bolts to keep them in place (Tr.- 208, 21821, 232, 250, 258-59, 263). They conceded that no record was made of such repair, and that
WS&G never advised Inspector Bosley or any other MSHA official of such repair (Tr. 213, 221,
225, 238, 254, 266). They also conceded that the repairs to which they attested did not straighten
the tire (Tr. 221, 255-58).
Inspector Bosley testified that he had seen no evidence of tack-welding when he inspected
under the hood of the welding truck, nor was he ever advised by WS&G of any efforts to repair
the defective condition (Tr. 61, 63-69, 74-75, 85-86). Referring to David Weade's July 5, 1998,
letter, respecting repair of the left front tire assembly, his report of the tluck' s pre-repair condition
contained no observation of tack-welding, or that nuts had been substituted for shims (Ex. P-5A;
See Tr. 232-33). Consequently, I credit Inspector Bosley's testimony, find WS&G's allegation of
having made repairs unworthy of credence, and conclude that the operator took no action to
repair the leaning tire, at least during the months of May and June. Furthermore, a contrary
finding, that efforts to repair the tire were made in April or May, does not advance WS&G's
position, since the company concedes that the problem persisted. WS&G should have dissembled
the tire, discovered the cause of the lean (missing shims and broken spring), and fixed the problem
in a timely fashion. Thus, the same conclusion is reached--that the defective tire assembly was
visible to WS&G for two months, that it was not corrected, and that WS&G was aware that
greater efforts were necessary for compliance. WS&G argues that it is being penalized for
diligently reporting the defect, rather than ignoring it (Resp. Br. at 5). In this case, however,
since no correction took place, the value of reporting is minimal. Indeed, the truck was repaired
the same evening that the citation was issued. It is my finding, therefore, that WS&G's conduct
demonstrated a serious lack of reasonable care that was more than ordinary negligence.
Accordingly, I find that the Secretary has proven that the violation was the result of WS&G's
unwarrantable failure to comply with the standard.

D. Penalty
While the Secretary has proposed a civil penalty of $2,500.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section l lO(i) of the Act, 30 U.S.C. § 820(j). See Sellersburg Co., 5
FMSHRC 287, 291-92 (March 1993), ajf'd, 763 F. 2d 1147 (71h Cir. 1984).
WS&G is a small operator, with a history of no prior violations of the standard at issue
1424

and an overall record that is not an aggravating factor in assessing an appropriate penalty (Exs. Pi'l, P-12). As stipulated, the proposed civil penalty will not affect WS&G's ability to continue in
business.
The remaining criteria involve consideration of the gravity of the violation and the
negligence of WS&G in causing it. I find the gravity of the violation to be serious, since
diminished control of the welding truck subjected the driver and other miners to a potentially
hazardous situation, which could have resulted in very serious injury. Furthermore, consistent
with my finding that the violation resulted from WS&G's unwarrantable failure, I ascribe high
negligence to the operator. Therefore, having considered WS&G's small size, insignificant
history of prior violations, seriousness of violation, high degree of negligence, good faith
abatement and no other mitigating factors, I find that the $2,500.00 penalty, as proposed by the
Secretary, is appropriate.

ORDER
Accordingly, it is ORDERED that Citation No. 7712465 is AFFIRMED, and West Sand
& Gravel Company is ORDERED TO PAY a civil penalty of$2,500.00 within 30 days of the
date of this decision. Upon receipt of payment, this case is DISMISSED.

·~·12~

cq line . Bulluck
Administrative Law Judge

Distribution: (Certified Mail)
Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 516, Arlington, VA 22203
Jerry W. Kilgore, Esq., Sands Anderson Marks & Miller, PC, P.O. Box 1998, Richmond, VA

23218-1998
Int

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-~ u.s. GOVERNMENT PRINTING OFF1CE:2000-l62-124/128U