DECEMBER 1992

COMMISSION DECISIONS AND ORDERS
12-02-92
12-07-92
12-17-92

Ford Construction Company
Gatliff Coal Company, Inc.
Sec.labor on behalf of Joseph A. Smith v. Helen Mining Co.

WEST 90-346
KENT 90-100
PENN 92-57-D

Pg. 1975"
Pg. 1982
Pg. 1993

KENT 91-1175
VA 91-254-R
VA 91-535
WEVA 91-2050-0

Pg. 1995
Pg. 1997
Pg. 1999
Pg. 2001

WEVA 93-31-D
LAKE 92-267-M
PENN 91-1480-R
PENN 92-704
PENN 92-368-DM
SE 92-226
SE 92-248
WEVA 92-1010-D
SE 92-84-M
WEST 92-124-M
KENT 91-75
PENN 92-739-R
KENT 92-110
VA 91-453
VA 91-583
VA 91-460
VA 91-495
VA 91-458
VA 91-462
WEVA 89-274
VA 92-129
KENT 92-1052-D
WEST 92-519-M
KENT 91-680-R
KENT 91-698-R
KENT 92-17
KENT 92-231
WEVA 91-2096
CENT 91-217-RM
VA 91-367-R
VA 91-386-R
VA 91-482
WEST 91-563

Pg. 2004
Pg. 2015
Pg. 2017
Pg. 2031
Pg. 2035
Pg. 2036
Pg. 2039
Pg. 2044
Pg. 2047
Pg. 2053
Pg. 2065
Pg. 2066
Pg. 2070
Pg. 2072
Pg. 2073
Pg. 2075
Pg. 2077
Pg. 2079
Pg. 2081
Pg. 2083
Pg. 2085
Pg. 2086
Pg. 2090
Pg. 2095
Pg. 2097
Pg. 2099
Pg. 2105
Pg. 2106
Pg. 2113
Pg.2117
Pg. 2119
Pg. 2121
Pg. 2123

WEVA 92-798
KENT 92-915-D
KENT 93-181-R

Pg. 2133
Pg. 2135
Pg. 2136

ADMINISTRATIVE LAW JUDGE DECISIONS
12-01-92 Jamboree Coals, Inc.
12-01-92 Solid Mining Company, Inc.
12-01-92 M P & M Coal Company, Inc.
12-01-92 Vincent Braithwaite v. Tri-Star Mining, Inc.
12-02-92 Sec. Labor on behalf of Paul H. Brooks v.
Ronald B. Snyder & R.B.S. Inc.
12-07-92 Wedron Silica Company
12-07-92 Keystone Coal Mining Corp.
12-07-92 Helen Mining Company
12-08-92 J. Bradley Miller v. White's Pelletizing Co.
12-08-92 Jim Walter Resources, Inc.
12-08-92 Drummond Company, Inc.
12-11-92 Sec. Labor on behalf of Ralph J. Thorn v. Island Creek Coal Co.
12-11-9 2 Brown Brothers Sand Company
12-14-92 Leadville Mining & Milling Corp.
12-15-92 Waste Coal Management
12-15-92 Consolidation Coal Company
12-18-92 * Black Widow Collieries Ltd.
12-18-92* Ambrose Branch Coal Company
12-18-92" Carol Coal Corporation
12-18-92" L & L Energy of Hurley, Inc.
12-18-9r Briarfield Coal Corporation
12-22-92 lucky L & L Coal Company, Inc.
12-22-92 Good Times Mining, Inc.
2-23-92 Ten-A Coal Company
'i 2-23-92 Dixie Mining Company, inc.
'12-28-92 Sec. Labor on behalf of Donald Bowling v. Perry Transport, etc.
12-28-92 !Rhone-Poulenc of Wyoming Company
12-29-92 Edd Potter Coal Company
12-29-92 Red Dog Coal Corporation
12-29-92 Davis A. Shoulders employed by Pyro Mining Company
12-29-92 Lucky Branch Coal Company, inc.
12-29-92 Allan Goode employed by Consolidation Coal Co.
12-30-92 Homestake Mining Company
12-30-92 Shady Lane Coal Corporation
12-30-92 Sunset Land & Coal Company
12-30-92 BR D Coal Company, inc.
12-30-92 American Mine Services, Inc.
ADMINISTRATIVE LAW JUDGE ORDERS
12-04-92
12-09-92
12-30-92

Consolidation Coal Company
Elmer Darrell Burgan v. Harlan Cumberland Coal Co.
Pittsburg & Midway Coal Mining Co.

•these cases were originally issued as November 16, 1992
they should read December 16, 1992

DECEMBER 1992

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

Secretary of Labor, MSHA v. Wyoming Fuel Company, Docket Nos. WEST 91-598-R, WEST
92-335. (Judge Morris, October 28, 1992).
Secretary of Labor, MSHA v. Paul Shirel and Donald Guess employed by Pyre Mining
Company, Docket Nos. KENT 92-73, KENT 91-1340. (Judge Melick, November 17, 1992).

Review was denied in the following case during the month of December:

Roy Lee Stroud, v. CBM Mining, Inc., Roy Gollier and James Booth, Docket No. KENT 91-986D. (Judge Maurer, October 23, 1992).

COMMISSION DECISIONS AND ORDERS

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

Deceraber 2, 1992
SECRETARY OF IABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. WEST 90-346-M

FORD CONSTRUCTION COMPANY

BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), and
involves the validity of two citations issued by the Secretary of Labor to
Ford Construction Company ("Ford") for alleged violations of 30 C.F.R.
§ 56.14130(g), 1 which requires the wearing of seat belts.
Commission Administrative Law Judge John J. Morris vacated the two citations. 14 FMSHRC 373.
(Februar~ 1992)(ALJ).
The Secretary filed a timely petition for discretionary
review. For the reasons set forth below, we reverse the judge's decision.
L

Factual and Procedural Background
Ford provides earth moving and construction contract services to mining
companies. In this case, Ford was in the process of preparing a settling pond
for Meridian Gold Company. During an inspection, Jaime Alvarez, an inspector
with the Secretary of Labor's Mine Safety and Health Administration ("MSHA"),
observed the operator of a large piece of earth moving equipment, a 637D
Caterpillar scraper, operating the equipment without wearing the seat belt
installed in the equipment. He issued a citation pursuant to section 104(a)
of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of 30 C.F.R.
1

Section 56.14130(g) provides:
Wearing Seat belts.
Seat belts shall be worn by the
equipment operator except that when operating graders
from a standing position, the grader operator shall wear
safety lines and a harness in place of a seat belt.

1975

§ 56.14130(g), and designated it as being of a significant and substantial
nature ("S&Sll). 2
That citation provided:

The operator of the CAT-637-D (Co. No. 8-7) scraper
was observed driving this vehicle on steep up and down
grades on a bumpy roadway which would easily cause him
to be knocked or bumped out of the driver's seat
because he was not wearing.his seat belt as required.
During that same inspection, Inspector Alvarez observed the operator of
a D8H Caterpillar bulldozer operating the equipment without wearing the seat
belt. Accordingly, he issued another citation pursuant to section 104(a) of
the Mine Act alleging a second violation of 30 C.F.R. § 56.14130(g).
Inspector Alvarez did not designate this citation as being S&S.
The judge vacated the scraper citation based on his determination that
section 56.14130(a) did not require seat belts to be installed in the cited
equipment. 3 14 FMSHRC at 378-80. The judge appeared to compare the
terminology used in the standard with the definition of "scraper" in the
Bureau of Mines, U.S. Department of the Interior, Dictionary of Mining.
Minerals and Related Terms at 971 (1968) ("DMMRT 11 ) . Id. The judge determined
that, although it "may well be that.the term 'scraper' fits within one of the
six paragraphs enumerated in section 56.14130(a)," the record is "silent on
that issue" and he concluded that the citation should be vacated. 14 FMSHRC
at 380.
The judge, similarly, vacated the bulldozer citation based on his
determination that the seat belt standard did not apply to the cited
equipment. 14 FMSHRC at 382-83. The judge stated that 11 section 56.14130(a)
is equipment specific as to what pieces and types of equipment are subject to
the requirements" and that "[d]ozers are not included in the specific list of
types of equipment covered by the seat belt requirements." 14 FMSHRC at 383.
2

The S&S terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which distinguishes as more serious in nature any violation
that "could significantly and substantially contribute to the cause and effect
of a
mine safety or health hazard .... "
3

Section 56.14130(a) provides:
Equipment included.
Roll-over protective structures
(ROPS) and seat belts shall be installed on-(1)
Crawler tractors and crawler loaders;
(2)
Graders;
(3)
Wheel loaders and wheel tractors;
(4)
The
tractor
portion
of
semi-mounted
scrapers, dumpers, water wagons, bottom-dump
wagons, rear-dump wagons, and towed fifth wheel
attachments;
(5)
Skid-steer loaders; and
(6)
Agricultural tractors.

1976

The judge concluded that, because the standard did not require the
installation of seat belts on either piece of equipment, the citations issued
for the failure to wear seat belts could not stand.
The Commission granted review of the Secretary's petition for
discretionary review, which challenges the judge's factual conclusions that
the scraper and dozer were not covered by the requirements of 30 C.F.R.
§ 56.14130, as being without substantial evidence in the record.
She also
asserts that the plain language of the standard includes the scraper and dozer
within its coverage and that the preamble to the standard supports her
position.
II.

Disposition of Issues
The judge correctly determined that subsection (g) of section 56.14130,
requiring that equipment operators wear seat belts, is only applicable if
subsection (a) of the standard requires the installation of seat belts on the
particular type of equipment being operated. Thus, in order to establish a
violation of subsection (g), the Secretary must show both that a seat belt was
required to be installed on the equipment and that the operator was not
wearing the seat belt.
A.

The Scraper

The judge stated in his decision that Ford may have been required to
install seat belts on the scraper. Nonetheless, he vacated the citation based
on his determination that the record did not adequately demonstrate that the
term "scraper" was included within one of the categories set forth in section
56.14130(a), requiring the installation of seat belts. The judge reasoned
that bec~use the cited equipment was not expressly listed in subsection (a),
the standard requiring the wearing of seat belts was not applicable. We agree
with the Secretary that the judge misconstrued the meaning and scope of the
standard.
Subsection (a)(4) of section 56.14130 provides that seat belts shall be
installed on the "tractor portion of semi-mounted scrapers .... " A tractor is
defined as a "self-propelled vehicle which may be mounted on crawler tracks,
on wheels with large pneumatic tires, or on a mixture of both." DMMRT at
1156. A "scraper" is defined as a:
steel
surface vehicle, 6 to 12 cubic
yard capacity, mounted on large rubber-tired wheels.
The bottom is fitted with a cutting blade which, when
lowered, is dragged through the soil. When full, the
scraper is transported to the dumping point ...
DMMRT at 971 (Emphasis added). As the definition makes clear, scrapers are
tractor-driven: Considering these definitions, it is clear that the language
of subsection (a)(4) describes a scraper, as that term is ordinarily used.
The designation "semi-mounted scraper" does not denote a unique classification

1977

of "scraper" but simply describes the ordinary configuration of a scraper,
i.e. two components, tractor and bowl. 4 Thus, scrapers, more particularly
the tractor portion where the operator sits, are required to have seat belts.
The regulatory history of this standard provides added support for the
Secretary's position. The predecessor to the current seat belt standard
described scrapers as "self-propelled scrapers." In 1988, MSHA issued new
standards for machinery and equipment at surface metal and nonmetal mines.
Department of Labor, Mine Safety and Health Administration, "Safety Standards
for Loading, Hauling, and Dumping and Machinery and Equipment at Metal and
Nonmetal Mines," 53 Fed. Reg. 32496 (August 25, 1988). The preamble to the
new standards expressed a clear intent to include scrapers within its
coverage. 5 It stated that the different terminology used in the new standard
did not narrow the breadth of the standard and that "the final standard
retain[ ed] the existing standard's scope." 53 Fed. Reg. at 32511. A table
was included which provided, in relevant part, that the term "tractor portion
of semi-mounted scrapers" in the new regulation was to have the same meaning
as did the term "self-propelled scrapers" used in the prior regulation. Id.
It is undisputed that the cited scraper was self-propelled. Thus, while new
terms were employed to describe a scraper, it remained within the standard's
coverage.
The record in this case contains sufficient evidence to establish that
the cited equipment fits within section 56.14130(a)(4). The inspector's
testimony concerning the size of the cited equipment, its function and its
ability to articulate describes the type of equipment covered by the standard.
Tr. 12 16. Thus, the judge failed to properly construe the scope and meaning
of the standard and, therefore, erred in failing to recognize the cited
equipment as being within the list of equipment requiring seat belts. The
judge's finding that seat belts were not required in the scraper is not
supported by substantial evidence. Since there is no dispute that the
operator of the cited scraper was not wearing his seat belt, we reverse the
judge's decision to vacate the citation. 6

L,
The bowl, often called the pan, scrapes the ground and scoops up
overburden or other material.
Missouri Rock, 11FMSHRC136 (February 1989).

5

It would have been helpful to the judge for the Secretary to have
placed in the record the relevant portions of the preamble to the Federal
Register notice since that information is not reprinted in the Code of Federal
Regulations.
6

Concern for safety alone should have resulted in use of the seat

belt.

1978

B.

The Bulldozer

The judge based his decision to vacate the second citation on the ground
that the record did not adequately demonstrate that the term "dozer" was
included within one of the categories set forth in subsection (a) of the cited
standard. 14 FMSHRC at 383. He reasoned that, because the cited equipment
did not require seat belt installation, there was no requirement to wear seat
belts. We believe, as in the case of the scraper, that the judge misconstrued
the meaning and scope of the standard.
Although the language of the standard itself does not include the
specific term "dozer" or "bulldozer" in the six categories of equipment
requiring the installation of seat belts, subsection (a)(l) provides that seat
belts shall be installed on "crawler tractors and crawler loaders." A
"bulldozer" is defined as a "tractor on the front end of which is mounted a
vertically curved steel blade .... " DMMRT at 150. A "crawler" is defined as:
One of a pair of an endless chain of plates driven by
sprockets and used instead of wheels, by certain power
shovels, tractors, bulldozers, drilling machines,
etc., as a means of propulsion. Also any machine
mounted on such tracks., .
DMMRT at 275 (emphasis added). It is clear that bulldozers are "crawler
tractors" and are within the scope of the standard requiring the installation
of seat belts.
The Secretary's position is again further supported by reference to the
regulatory history. The preamble to the standard stated that the new
terminology used in subsection (a) did not limit the breadth of the standard
but rather retained "the existing standard's scope." 53 Fed. Reg. 32511
(1988). ·As in the case of the scraper, a table in the preamble provided that
the terms crawler tractors and crawler loaders in the new standard were to
have the same meaning as the terms used in the prior standard, which
specifically included the term "dozer." Id. Thus, while new terms were
employed to describe a dozer, such equipment clearly remained within the
standard's coverage.
The record contains sufficient evidence to establish that the cited
dozer was adequately described to place it within the coverage of the
standard. The inspector's testimony concerning the equipment's size and its
function together with his testimony as to its common names, "caterpillar,"
and "dozer," provide a sufficiently specific description to place it within
the scope of the standard. Tr. 12-13, 48-50. Thus, the judge failed to
properly construe the scope and meaning of the standard and, therefore, erred
in failing to recognize the cited equipment as being within the list of
equipment requiring seat belts. The judge's finding that dozers are not
included in the categories of equipment that require seat belts is not
supported by substantial evidence. Since it is undisputed that the operator
of the cited dozer was not wearing his seat belt, we reverse the judge's
decision to vacate the citation.

1979

III.

Conclusion
For the foregoing reasons, we reverse that part of the judge's decision
vacating citation Nos. 3458357 and 3458425, issued because equipment operators
failed to wear seat belts. We remand this proceeding to the judge to
determine whether the scraper citation was properly designated as being S&S
and to assess civil penalties for both citations .

. ;;;

?

Arlene Holen, Chairman

L. Clair Nelson, Commissioner

1980

Distribution
Tina Gorman,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Robert D. Peterson, Esq.
3300 Sunset Boulevard, Suite 110
Rocklin, California 95677
Administrative Law Judge John J. Morris
Federal Mine Safety & Health Review Commission
280 Federal Bldg.
1244 Speer Boulevard
Denver, Colorado 80204

1981

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

20006

December 7, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. KENT 90-100
KENT 90-215
KENT 89-242-R through
KENT 89-252-R

v.
GATLIFF COAL COMPANY, INC.
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners
DECISION

BY:

Holen, Chairman; Backley, and Doyle, Commissioners

This consolidated contest and civil penalty proceeding, which arises
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et .§..fill..
(1988)(the "Mine Act" or "Act"), involves the emergency communication standard
set forth at 30 C.F.R. § 77.1701. 1 This matter is before the Com.mission for
a second time. The Commission's initial decision reversed the administrative
law judge's decision and held that the standard had been violated. 13 FMSHRC
1370 (September 1991). On remand, Commission Administrative Law Judge Gary
Melick determined that the violation was neither significant and substantial

l

The standard provides:
Section 77.1701 Emergency communications; requirements.
(a)
Each operator of a surface coal mine shall
establish and maintain a communication system from the
mine to the nearest point of medical assistance for
use in an emergency.
(b)
The emergency communication system required to
be maintained under paragraph (a) of this section may
be established by telephone or radio transmission or
by any other means of prompt communication to any
facility (for example, the local sheriff, the State
highway patrol, or local hospital) which has available
the means of communication with the person or persons
providing emergency medical assistance or transportation in accordance with the provisions of
paragraph (a) of this section.

1982

("S&S") nor an unwarrantable failure to comply.z 13 FMSHRC 1641, 1647
(October 1991). The Secretary of Labor timely challenged those determinations
and the Commission granted review. For the reasons that follow, we reverse
the judge's finding that the violation was not S&S, affirm that the violation
was not an unwarrantable failure and remand for reassessment of an appropriate
civil penalty.
I.

Factual Background and Procedural History
Gatliff Coal Company, Inc. ("Gatliff,.) owns and operates a surface coal
mine, known as Gatliff No. 1, Job 75, in Whitley County, Kentucky. On August
1, 1989, a truck driven by Gatliff employee Boyd Fuson went off an elevated
roadway on the mine property and tumbled down a 120 foot embankment. Two
Gatliff employees drove from the mine property to the nearest telephone to
summon help. Fuson died as a consequence of the accident.
Because there was no company radio at Job 75 at the time of the
accident, the Mine Safety and Health Administration (MSHA) issued Gatliff a
section 104(d)(l) order charging a violation of 30 C.F.R. § 77.1701.
Gatliff typically maintains three company radios at the mine site. The
radios are two-way 40 watt radios with sufficient range to reach the Gatliff
mine office and are located in the foreman's truck, the mechanic's truck and
the lube truck. Tr. 151. Gatliff's standard emergency notification procedure
consists of communication via the two-way radios back to the mine office,
where there is a telephone. On the night of the accident, however, no company
radios were on the job site. Tr. 156.
Before the judge, Gatliff asserted that, although no two-way radio was
present at Job 75 at the time of the accident, a CB radio was present.
Gatliff argued that use of the CB radio would have enabled the miners to make
contact with a nearby Gatliff mine site (Job 74) that did have such a two-way
radio on its lube truck. The judge found that the CB radio constituted an
"alternate" emergency communication system. 13 FMSHRC 368. The Commission
rejected that conclusion:
The CB system was undeniably a voluntary system
adopted by the miners utilizing their personal CB
radios
Tr. 54, 154, 162, 219. The operator
initially introduced CBs but effectively abandoned
2
The S&S terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which, in pertinent part, distinguishes as more serious in
nature any violation that "could significantly and substantially contribute to
the cause and effect of a
mine safety or health hazard .... "
The
unwarrantable failure terminology is also taken from section 104(d)(l) of the
Act, which, in pertinent part, distinguishes those violations of mandatory health
or safety standards "caused by an unwarrantable failure of [an] operator to
comply with such mandatory health or safety standards .... "

19 83

their use in favor of two-way radios. Tr. 219. The
operator did not enforce the use of CBs and there is
no evidence that the operator told employees that the
CB system was an alternate emergency system.... The
fact that the CBs were the miners' personally owned
equipment, not Gatliff's, and that miners were free to
decide whether to bring CBs to work, is also
inconsistent with the standard's requirement that the
emergency communication system be operator established
and maintained. That the operator knew that its
employees were routinely using CBs, did not disapprove
of their use, and aided this practice to the extent of
providing cable and antennae for them does not amount
to sufficient involvement to constitute operator
establishment and maintenance of the system .
. . . [B]ecause the CB system was neither operator
established, nor operator maintained, it did not
satisfy the requirements of section 77.1701.

13 FMSHRC 1375.
Upon remand, the judge determined that the violation was not S&S and
that it did not result from the operator's unwarrantable failure.
II.

Disposition of Issues

A.

Whether the violation was significant and substantial

The Commission established its test for determining whether a violation
is significant and substantial in Mathies Coal Co., 6 FMSHRC 1 (1984). There
the Commission set forth the elements the Secretary must prove to demonstrate
that a violation is significant and substantial:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial ... the Secretary of Labor must prove;
(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
at 3-4.
The judge, after setting forth the Commission's Mathies test for
evaluating whether a violation is significant and substantial, focused his
analysis upon the third element of the test and the Commission's decision in

1984

U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). In addressing
the likelihood of injury in terms of continued mining operations, he stated:
Ordinarily, according to the undisputed
evidence, Gatliff maintains as its standard operating
procedures, three 40-watt two way radios at each mine
site sufficient to call the mine office where there is
a telephone. It is further undisputed that these
communication systems would meet the cited regulatory
requirements. On the night at issue however, for
reasons not fully explained, none of the three
vehicles having such radios was at this particular
location at the mine. It may reasonably be inferred,
therefore, that the absence of such a radio was an
aberrant situation and would not ordinarily have
existed under normal mining operations.
13 FMSHRC 1647.
The judge also relied upon the presence of a CB radio at the mine site:
It is also undisputed that alternative means of
communication was available at the time at issue from
the mine to the nearest point of medical assistance in
the event of an emergency. This system was provided
by CB radio and two-way radio on the lube truck to the
mine office. Under all the circumstances, I do not
find that the violation was "significant and
substantial" or of high gravity.

The Secretary contends that the judge erred in his S&S analysis (1) by
factoring into his conclusion that the absence of the two-way radio was an
aberrant situation that would not ordinarily have existed under no~mal mining
operations, (2) by holding that the violation would not continue into the
future, and (3) by relying upon the presence of the CB radio as an available
alternative means of communication in the event of an emergency. Sec. Br. at
6, B. For the reasons stated below, we agree that the judge erred in his
determination that the violation was not S&S. 3
3

We note that the Secretary also urged that the judge 1 s · non S&S
finding should be reversed on the basis that the emergency communication standard
is one of a class of standards that are applicable only when an underlying
emergency (such as the truck accident in this instance) has already occurred and
therefore, for such standards, the occurrence of the underlying emergency should
be presumed.
This argument was not presented below and consequently the
administrative law judge was not afforded an opportunity to pass on it. For the
reasons stated in Beech Fork Processin~, Inc., 14 FMSHRC 1316 (August 1992) we
do not consider this aspect of the Secretary's challenge.
See also section
(continued ... )

1985

In U.S. Steel, the Commission said:
a determination of "significant and substantial" must
be made at the time the citation is issued (without
any assumptions as to abatement), but in the context
of "continued normal mining operations."
6 FMSHRC at 1574.
The Mathies test requires evaluation of the violation at the time of
citation, including an examination of the risk of serious injury, given the
presence of the violative condition in normal mining operations. In contrast,
the judge determined that under continued normal operations the absence of the
two-way radio was an aberrant situation. 13 FMSHRC at 1647. He misapplied
the third element of the Mathies test in inferring that the violative
condition would cease. Accordingly, the judge erred.
In his S&S analysis the judge also relied upon the presence of an
employee-owned CB radio at the mine site on the evening of the accident.
judge characterized the radio as an:

The

... alternative means O'f communication [that] was
available at the time at issue from the mine to the
nearest point of medical assistance in the event of an
emergency.
13 FMSHRC at 1647.
As the Commission stated in its earlier decision, use of CB radios was a
voluntary system adopted by the miners utilizing their personally owned
radios. There was no evidence in the record that the operator instructed
employees to consider CB radios an alternate emergency communication system,
nor were the miners trained in the use of CB radios as an emergency
communication system. We noted further that the miners were free to decide
whether to bring CBs to work and, thus, the CBs did not meet the standard's
requirement that the emergency communication system be operator established
and maintained. 13 FMSHRC at 1375. The miners did not use the CB at the time
of the emergency, but instead drove off the mine property to reach a
telephone. The Commission having concluded that the CB radio was not an
operator established and maintained emergency communication system, it was
error for the judge to consider the CB radio to be an alternate emergency
system.
Applying the Mathies analysis to these facts, we conclude that the
violation was significant and substantial. First, there was a violation of
3

( ••• continued)
113(d)(2)(A)(iii) of the Act, 30 U.S.C. § 823(d)(A)(iii), which provides, in
pertinent part, that "[e]xcept for good cause shown, no assignment of error by
any party shall rely on any question of fact or law upon which the administrative
law judge had not been afforded an opportunity to pass."

1986

30 C.F.R. § 77.1701; no operator established two-way radio was present at the
mine site. Second, there was a discrete safety hazard or measure of danger to
safety created by the violation; the absence of the two-way radio created a
delay in responding to the accident because miners had to leave the property
to seek help. The record demonstrates that the third and fourth elements, a
reasonable likelihood that the hazard contributed to would result in an injury
and a reasonable likelihood that the injury would be of a reasonably serious
nature, were established. Accordingly, we hold that, under these
circumstances, the violation was significant and substantial.
B.

Whether the violation resulted from the operator's
unwarrantable failure

The Commission has explained that unwarrantable failure is:
aggravated conduct constituting more than ordinary
negligence by a mine operator in relation to a
violation of the Act. Emery Mining Corp., 9 FMSHRC
1997, 2004 (December 1987); Youghiogheny & Ohio Coal
9 FMSHRC 2007, 2010 (December 1987). This
determination was derived, in part, from the ordinary
meaning of the term "unwarrantable failure" ("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,
characterized by "inadvertence," "thoughtlessness,"
and "inattention"). Emery, supra. 9 FMSHRC at 2001.
This determination was also based on the purpose of
unwarrantable failure sanctions in the Mine Act, the
Act's legislative history, and on judicial precedent.
Drummond Co., Inc., 13 FMSHRG 1362, 1366-1367 (September 1991).
In address

whether the violation was unwarrantable, the judge stated:

[I]n light of the evidence that ordinarily three
two-way radios are present at the mine and that the
absence of a radio on the night at issue was anything
other than the result of inattention or inadvertence,
and that the miners were not left without a means of
emergency radio communication, I cannot find that the
violation was the result of "unwarrantable failure,"
or more than simple negligence.
13 FMSHRC at 1647.
The Secretary, citing Emery, 9 FMSHRC 1997, 2003-04, asserts that
conduct constitutes unwarrantable failure if the operator "knew or should have
known" that the conduct would result in a violation. Sec. Br. at 11. Noting
that the Commission earlier held that the two-way radio was the only

1987

established and maintained means of emergency communication, the Secretary
contends that:
the foreman, who had full management responsibility for overseeing events at the site, 'knew or
should have known' that his conduct would violate [the
standard] and would leave the miners with no adequate
means of summoning assistance if, as indeed happened,
one of them suffered a serious injury.
Sec. Br. at 11. On this basis the Secretary asserts that the foreman's
removal of the two-way radio from the mine site was unwarrantable. Id. at 12.
Gatliff, like the Secretary, points to Emery for its authority. The
operator takes issue with what it views as the Secretary's out-of-context use
of the "should have known" language in Emery, noting that the Secretary's
position would equate unwarrantable failure with ordinary negligence. Gatliff
notes that in Emery the Commission distanced itself from the interpretation
urged by the Secretary. Gatliff Br. at 6, citin~ Emery, 9 FMSHRG at 2004.
The judge erred in consideri~g the presence of a miner's CB radio as an
alternative means of emergency communication. Consequently, he also erred in
viewing the GB radio as a mitigating factor in evaluating whether the
violation was unwarrantable. Nonetheless, the judge's finding that the
absence of the two-way radio was attributable to ordinary negligence is
supported by the record.
While it is true that the foreman drove off the mine property in the
truck with the two-way radio in it, there is no evidence in the record that
this was due to anything beyond inadvertence. Indeed, at trial no evidence
was elicited on the foreman's state of mind, or on the custom, practice or
circumstances surrounding the removal of the two-way radio from the mine site.
Tr. 148-156.
Although the foreman's actions may have been negligent, the Commission
has explained that negligence and unwarrantable failure are not synonymous
terms:
The terms "unwarrantable failure" and
"negligence" are distinguished in the Mine Act. A
finding by an inspector that a violation has been
caused by an operator's unwarrantable failure to
comply with a mandatory health or safety standard may
trigger the increasingly severe enforcement sanctions
of section 104(d). 30 U.S.G. § 814(d). Negligence,
on the other hand, is one of the criteria that the
Secretary and the Commission must consider in
proposing and assessing, respectively, a civil penalty
for a violation of the Act or of a mandatory health or
safety standard. 30 U.S.C. §§ 815(b)(l)(B) & 820(i).
Although the same or similar factual circumstances may
be included in the Commission's consideration of
unwarrantable failure and negligence, the concepts are

1988

distinct. See Ouinland Coals. Inc., 7 FMSHRC 1117,
1122 (August 1985); Black Diamond Coal Co., 9 FMSHRC
1614, 1622 (September 1987). Nevertheless, as
explained in Emery, [9 FMSHRC 1997] and Youghiogheny &
Ohio, [9 FMSHRC 2007] aggravated conduct constitutes
more than ordinary negligence for purposes of a
special finding of unwarrantable failure. "Highly
negligent" conduct involves more than ordinary
negligence and would appear, on its face, to suggest
an unwarrantable failure. Thus, if an operator has
acted in a highly negligent manner with respect to a
violation, that suggests an aggravated lack of care
that is more than ordinary negligence.
Eastern Associated Coal Corp., 13 FMSHRC 178, 186 (February 1991).
There is substantial evidence in the record to support the judge's
conclusion that the foreman's actions constituted no more than ordinary
negligence. Thus, we affirm that the violation was not unwar~antable.
C.

Civil Penalty

Following the Commission's earlier remand, the judge, after finding the
violation to be neither S&S nor unwarrantable, modified the order to a section
104(a) citation and assessed a civil penalty of $50. Although we have
affirmed the judge's holding that the violation was not unwarrantable, we have
reversed his finding as to S&S. Accordingly, this matter is remanded for
reassessment of the civil penalty in light of our determination that the
violation was S&S.

1989

III.
Conclusion
For the foregoing reasons, we reverse the judge's finding that Gatliff's
violation of 30 C.F.R. § 77.1701 was not significant and substantial, affirm
the judge's determination that the violation was not unwarrantable, and remand
for the assessment of an appropriate civil penalty.

Arlene Holen, Chairman

Richard V. Backley, Commissioner

...

~{/~
comilliSS=ner

Jzyyce:DOile,

1990

Commissioner Nelson, concurring in part and dissenting in part:
I must dissent solely with regard to the majority's affirmation of the
AL.J's determination that the violation did not constitute unwarrantable
failure. Such affirmation seemingly results more from concern with fine
points in preceding decisions than with concern for basic fundamentals
expressed in the Mine Act with regard to miner safety.
Our governing statute states at the outset (in Section 2(d) and (e))
that the operator of a mine -- with the assistance of the miners -- has
primary responsibility to prevent the existence of unsafe conditions and
practices in the mine. Section 2(g) authorizes the Secretary of Labor to
promulgate mandatory safety standards to protect the safety of every miner.
Here we have a mandatory safety standard requiring the operator to
establish and maintain a communication system for use in an emergency. The
essential component of the communication system established for use at this
mine site, i.e., a two-way radio, was removed from the site by a foreman and
never returned during some nine hours prior to the occurrence of an accident
resulting in a fatality.
The majority observes that evidence in the record indicates only that
the foreman acted inadvertently in removing the two-way radio from the mine
site where the accident occurred nine hours later. (In fact, it is abundantly
clear that the absence of a two-way radio persisted through one shift and into
another shift, unless the shift periods exceeded eight hours.)
My observation is to the effect that the record clearly demonstrates
highly negligent conduct on the part of the mine operator in failing to
provide requisite attention to the training of supervisory employees in order
to assure compliance with an extremely important safety standard requiring the
presence of an emergency communication system at this mine site. The absence
of a fundamentally essential component of the requisite emergency
communication system for a period of at least nine hours sufficiently
establishes, in my view, highly negligent conduct constituting unwarrantable
failure on the part of this operator.

1991

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Robert I. Cusick,
Frank F. Chuppe, Esq.
Wyatt, Tarrant & Combs
2600 Citizens Plaza
Louisville, KY 40202
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1992

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K Street NW, 6th Floor
Washington, D.C. 20006
December 17, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JOSEPH A. SMITH
v.

Docket Nos. PENN 92-57-D
PENN 92-58-D

THE HELEN MINING COMPANY
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners
ORDER

BY THE COMMISSION:
On November 18, 1992, Helen Mining Company ("Helen") filed an
Application for Stay ("Application") of Administrative Law Judge Roy J.
Maurer's September 17, 1992, assessment of a civil penalty and award of back
pay in this matter. 14 FMSHRC 1626, 1645 (September 1992)(ALJ). 1 In the
alternative, Helen requests that the Commission permit it to deposit the civil
penalty and back pay award into an interest-bearing escrow account. Helen
stated in its Application that it intended to appeal the judge's decision to
the United States Court of Appeals for the District of Columbia Circuit2 • It
requests that the stay or escrow arrangement remain in effect until such time
as a final appellate determination in these proceedings has been reached.
The Secretary responded to the Application on November 23, 1992. She
states that she does not oppose the escrow relief requested by Helen so long
as Helen deposits the back pay award in the amount of $45,450.37, plus
interest due on that amount under the terms of the judge's order, and the
civil penalty in the amount of $10,000 in bona fide interest-bearing escrow
accounts. The Secretary further requests that, in the event the judge's order
is upheld on appeal, any applicable pre- and/or post-judgment interest be
included in the awards to Complainant Joseph A. Smith and the Secretary,
1

Helen filed a Petition for Discretionary Review of the judge's
decision with the Commission, but no two Commissioners voted to grant the
petition. As a consequence, the judge's decision became the final decision of
the Commission 40 days after it was issued. 30 U.S.C. § 823(d)(l).
2

Helen filed its petition for review in the D.C. Circuit on November
18, 1992.

1993

respectively. Counsel for the Secretary has advised the Commission, by
telephone, that Complainant Joseph A. Smith agrees with the Secretary's
position.
Helen filed its Application pursuant to Rule 18 of the Federal Rules of
Appellate Procedure, which provides that an "[a]pplication for a stay of a
decision or order of an agency proceeding pending direct review in a court of
appeals shall ordinarily be made in the first instance to the agency." An
escrow arrangement has the effect of maintaining the status quo in this
litigation during appeal. Section 106(a)(l) of the Mine Act, 30 U.S.C.
§ 816(a)(l), provides that if a final decision of the Commission is appealed
to a court of appeals, the court shall have exclusive jurisdiction of the
proceeding once the record of the proceeding before the Commission is filed
with the court. The record in the present proceeding is due to be filed with
the D.C. Circuit on January 7, 1993. The Commission, therefore, has
jurisdiction to consider Helen's Application at this time.
Under the facts presented and given the Secretary's and the
complainant's lack of opposition to Helen's Application to place the civil
penalty and back pay award, plus interest, into escrow accounts, Helen's
Application is granted to the extent that the escrow accounts shall be
established subject to the conditions set forth in the Secretary's response to
the Application.

Arlene Holen, Chairman

~~/1----

Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner
Distribution~

Tana M. Adde,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
J. Michael Klutch, Esq.
Polito & Smock, P.C.
Suite 400
Four Gateway Center
Pittsburgh, PA 15222

1994

ADMINISTRATIVE LAW JUDGE DECISIONS

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

DEC l l.992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
Vo

)

CIVIL PENALTY PROCEEDINGS

)

)
)
)

Master Docket No. 91-1
Docket No. KENT 91-1175
A.C. No. 15-14583-035450

)

JAMBOREE COALS, INCORPORATED,
Respondent

)

No. 3 Mine

)

)

)

Docket No. KENT 91-1174
No. 15-16784-035100

A~c.

)

)

No. 4 Mine

ORDER OF DISffISSAL
Before~

Judge Broderick

On November 27, 1992, the Secretary filed a motion to
dismiss these proceedings on the grounds that on August 2, 1991,
the Respondent and Jack Fannon, President of Respondent entered
into plea agreements, agreeing to plead guilty to charges of
conspiracy to defraud the United states in connection with the
civil violations charged hereino Respondent contracted with
;I'riangle Research to handle its dust sampling program.
Triangle 0 s principal and agent admitted falsifying the samples
submitted to MSHA and admitted that on numerous occasions they
blew air on the filter surfaces of manufactured dust samples.
Harry White and Ronald Ellis of Triangle have been convicted of
defrauding the government and have been sentenced to prisono
Respondent provided Triangle with signed blank dust data cards
'l:Jhich were submitted to MSHA with the samples.
On May 8v 1992v Judge Joseph Mo Hood of the Eastern District
of Kentucky sentenced Jamboree Coals to pay a find of $5,000 and
years probationo Jack Fannon was sentenced to 2 years
probation and 3 months of home detentiono As part of the plea
agreement the Secretary agreed to move to dismiss pending civil
penalty proceedings against Respondent for violations of the laws
governing the dust sampling program.
I conclude that under the circumstances dismissal of these
proceedings effectuates the purposes of the Mine Act.

1995

Accordingly, these proceedings is DISMISSED.

/itt/t/ftZ f;

ffivodu,,i~

~· James A. Broderick

·

Administrative Law Judge

Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400 Arlington, VA 22203 (Certified Mail)
John D. Austin, Jr., Esq., Austin & Movahedi, 2115 Wisconsin
Avenue, N.W, Washington, DC 20007 (Certified Mail)
/fb

1996

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

SOLID MINING COMPANY, INC.,
Contestant

v.

)
)
)

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

v.

CONTEST PROCEEDINGS

)

Docket No. VA 91-254-R
through VA 91-259-R

)

)

Mine No. 1

)
)
)

)

CIVIL PENALTY PROCEEDING

)

)
)

Docket No. VA 91-498
A.C. No. 44-05926-03537D

)

SOLID MINING COMPANY,
Respondent

)

Mine No. 1

)
)

ORDER OF DISMISSAL
Before:

Judge Broderick

On November 21u 1992u the Secretary filed a motion to
dismiss these proceedings on the grounds that on August 2v l99lu
the Respondent and Paul Fletcheru President of Respondent entered
into plea agreementsu agreeing to plead guilty to charges of
conspiracy to defraud the United States in connection with the
civil violations charged herein. Respondent contracted with
Triangle Research to handle its dust sampling program.
Triangleis principal and agent admitted falsifying the samples
submitted to MSHA and admitted that on numerous occasions they
blew air on the filter surfaces of manufactured dust samples.
Harry White and Ronald Ellis of Triangle have been convicted of
defrauding the government and have been sentenced to prison.
Respondent provided Triangle with signed blank dust data cards
which were submitted to MSHA with the samples.
On May 8, 1992, Judge Samuel G. Wilson of the Western
District of Virginia sentenced Solid Mining Co., Inc., to pay a
fine of $15,000 and to 2 years probation. Paul Fletcher was
sentenced to 2 years probation and 60 days of home confinement.
As part of the plea agreement the Secretary agreed to move to
dismiss pending civil penalty proceedings against Respondent for
violations of the laws governing the dust sampling program.

1997

I conclude that under the circumstances dismissal of these
proceedings effectuates the purposes of the Mine Act.
Accordingly the above contest proceedings and the civil
penalty proceeding are DISMISSED.

4_,1M,~ A13vo~

(/~~mes A. Broderick

Administrative Law Judge

Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400 Arlington, VA 22203 (Certified Mail)
Thomas R. Scott, Jr., Esq., Street, Street, Street, Scott &
Bowman, 339 West Main Street, P.O~ Box 2100, Grundy, VA 24614
(Certified Mail)
/fb

1998

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

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

)

CIVIL PENALTY PROCEEDING

)

)
)
)

v.

Master Docket No. 91-1
Docket No. VA 91-535
A.C. No. 44-04632-03557D

)

MP & M COAL COMPANY, INC.,
Respondent

)

Mine No. 2

)

ORDER OF DISMISSAL
Before:

Judge Broderick

on November 27, 1992, the Secretary filed a motion to
dismiss this proceeding on the grounds that on August 6, 1991,
the Respondent and Frank Hackney, President of Respondent entered
into plea agreements, agreeing to plead guilty to charges of
conspiracy to defraud the United states in connection with the
civil violations charged herein. Respondent contracted with
Triangle Research to handle its dust sampling program.
Triangle's principal and agent admitted falsifying the samples
submitted to MSHA and admitted that on numerous occasions they
blew air on the filter surfaces of manufactured dust samples.
Harry White and Ronald Ellis of Triangle have been convicted of
defrauding the government and have been sentenced to prison.
Respondent provided Triangle with signed blank dust data cards
which were submitted to MSHA with the samples.
on August 7f 1992u Judge Samuel G. Wilson of the Western
District of Virginia sentenced M.P & M, Inc. to pay a fine of
$30uOOO and to 2 years probation. Frank Hackney was sentenced to
2 years probation and 60 days of home confinement. As part of
the plea agreement the Secretary agreed to move to dismiss
pending civil penalty proceedings against Respondent for
violations of the laws governing the dust sampling program.
I conclude that under the circumstances dismissal of this
proceeding effectuates the purposes of the Mine Act.
Accordingly, this proceeding is DISMISSED.

A

~s fi5.z;;ck,2'd_

ames A. Broderick
Administrative Law Judge

1999

Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400 Arlington, VA 22203 (Certified Mail)
Ronald King, Esq., P.O. Box 1560, Grundy, VA 24614
(Certified Mail)
Frank w. Hackney, MP & M Coal Company, Inc., Rt. 1, Box 513,
Grundy, VA 24614 (Certified Mail)
/fb

2000

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

VINCENT BRAITHWAITE,
Complainant
Vo

.:

22041

DISCRIMINATION PROCEEDING
Docket No. WEVA 91-2050-D
MORG CD 91-06

TRI-STAR MINING, INC.,
Respondent
DECISION DENYING MOTION FOR RECONSIDERATION
AND AWARDING DAMAGES
Appearances:

Vincent Braithwaite, Piedmont, WV,
~ Se1
Thomas G. Eddy, Esq., Eddy & Osterman,
Pittsburgh, PA, for Respondent.

Before:

Judge Fauver

This case was brought under § 105 (c) of the Federal Mine
Safety and Health Act of 1977, § 801 et seq., alleging a
discriminatory discharge.
On August 24 v 1992 u a decision on liability was entered 8
finding that Respondent discharged Complainant on April 2u 1991, in
violation
the Actp and that on the date of hearing, April 29 8
1992 9 Respondent made a bona fide offer to reinstate Complainant
pending a decision on liability and Complainant refused the offer.
The decision therefore limited the period for back pay to April 2,
199lp through April 29u 1992.
Following extensive conference calls and exchanges of
documents on damagesu a hearing on damages was held on September
29 v 1992
At. the hearing, Respondent moved to reconsider the
decision on liability based on the decision of the Maryland
Department of Economic and Employment Development Off ice of
Unemployment Insurance, dated April 12, 1991.
The state agency
denied Complainantis claim for unemployment compensation on the
ground that he had refused to perform work and his "action was a
deliberate and wilful disregard of standards of behavior, which
his/her employer had a right to expect. 11
I have reviewed the
documents and arguments submitted on the motion, and find that the
state agency 1 s decision does not warrant reconsideration of my
liability decision.
The state decision is not binding on this
Commission, and did not involve federal issues raised by the Mine
Safety Act.
o

2001

At the hearing on damages, based on the hearing evidence and
prehearing exchanges of documents and representations of facts in
the conference calls, a provisional order was entered assessing
damages as follows:
Damages for repossessed truck.

$2,150.00 1

Medical expenses that would
have been paid by Pennsylvania
Blue Shield had Complainant
not been discharged.

$7,854.00

Back pay after deduction
for earnings from. other
employment.

$19,798.00

Litigation expenses and
expenses seeking other
employment.

$198.13
$30,001.12

After the hearing, Respondent submitted a letter from
Pennsylvania Blue Shield stating that it would not have paid a
certain part of the prenatal charges paid by Complainant. Based on
that letter, and without opposing documents from Complainant, I
find that $2,300.00 should be deducted from the bill from Ors.
Mould and Kho for $4,100.00 in considering Complainant's medical
damages. This deduction results in an allowance of $1,440.00 for
their bill ( 80% x $1, 800. 00) , instead of the allowance in the
provisional order of $3, 280 (80% x $4, 100. 00). 2 This change
reduces medical damages to $6,614.99 ($7,854.99 minus $1,840.00).
Based on the evidence 1 no other adjustments in the provisional
order are warrantedo Accordinglyu damages will be awarded in the
amount
8,161.12 ($30,001.12 minus $1,840.00), plus interest.
ORDER

WHEREFORE IT IS ORDERED that:
motion

for

reconsideration

the

decision

on

This figure is reached by adding (A) the fair market value
of the truck (time of repossession) and (B) the lender 9 s charge
for repossessionv then subtracting (C) the lender allowance for the
repossession sale of the truck. The figures are included in the
transcript of the hearing on damages.
2

I find that Blue Shield would have paid 80% of the covered
part of the doctors' bill and 100% of the hospital bill submitted
by Complainant.

2002

liability is DENIED.
2.
Within 30 days of the date of this decision, Respondent
shall pay damages of $28,161.12 to Complainant plus accrued
interest from April 2, 1991, until the date of payment. Interest
will be computed according to the Commission's decision in Local
Union 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1483 (1988),
aff 'd sub nom. Clinchfield Coal Co. v. fMSHRC 895 F.2d 773 (D.c.
Cir., 1990), and calculated in accordance with the formula in
Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984).
3.
This decision and the decision on liability constitute
the judge's final disposition of this proceeding.

~

-:r-~V't/t...--

William Fauver
Administrative Law Judge

Distribution:
Mro Vincent Braithwaite, 53 West Harrison Street, Piedmont, West

Virginia

26750 (Certified Mail)

Thomas G. Eddy, Esq., Eddy and Osterman,
Pittsburgh, PA 15219 (Certified Mail)
/fcca

2003

820

Grant Building,

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

DEG 2 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION ON BEHALF
OF PAUL H. BROOKS,
Applicant

TEMPORARY REINSTATEMENT
Docket No. WEVA 93-31-DM
NE-MD 92-03
Greystone Quarry and Plant

v.
RONALD B. SNYDER AND R.B.S.
INCORPORATED,
Respondents

ORDER OF TEMPORARY REINSTATEMENT

Appearances:

Before:

Gretchen Lucken, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia
for the Applicant:
David J. Hardy, Esq., Jackson & Kelly,
Charleston, West Virginia for the Respondents.

Judge Barbour

On October 28u 1992u the Secretary of Labor ("Secretary")
file an application for an Order requiring Respondents Ronald B.
Snyder and R.B.S. Incorporated ("R.B.S.") 1 to reinstate Paul H.
Brooks to t.he position that he held immediately prior to his
discharge on July 30, 1992u or to a similar position at the same
rate of pay, and with the same or equivalent duties. The
Application was supported by the affidavit of James E. Betcher,
Chief u Office of Technical Compliance and Investigation Division,
~etal and Non-Metal Safety and Health Divisionu Mine Safety and
Health Administration ("MSHA") and by a copy of the original
complaint filed by Brooks with MSHAo
In a letter filed on November 9q 1992, counsel for
Respondents requested a hearing on the Application. As the
result of a November 10 1 1992 telephone conversation involving
counsels and myself, the parties agreed to November 24, 1992, as

1Ronald Snyder is the president of R.B.S. Incorporated.

2004

the date for the hearing. Therefore, the requested hearing was
held pursuant to notice on that date in Beckley, West Virginia. 2
As yet, the hearing is not transcripted.
Prior to counsels' opening statements and to the taking of
testimony, I orally summarized the pleadings, and I stated that
the issue to be resolved at the hearing was narrow - - whether
Brooks' complaint was "not frivolous brought" as that term
is used in Section 105(c)(2) of the Federal Mine Safety and
Health Act of 1977 ("Mine Act"). I also stated my understanding
of the law to be that I was not required to determine the merits
of Brooks' discrimination complaint but solely to determine
whether the complaint was frivolous; that is to say, whether it
was clearly without merit, clearly fraudulent or clearly
pretexual in nature.
THE TESTIMONY
THE APPLICANT'S WITNESSES
The Secretary, on behalf-of Brooks, presented her case
through the testimony of Brooks and of Larry w. Brendle, a
special investigator for MSHA who investigated Brooks'
discrimination complaint for the Secretary.
Brooks testified that until his discharge on July 30, 1992,
he had worked as the operator of a front end loader ( 11 loader") at
the Greystone Quarry and Plant. 3 He stated that on the morning
of July 30, 1992, he was loading limestone from a muck pile into
a waiting truck and that he was concerned about the condition of
the highwall above him. He described the highwall as being
cracked from top to toe and as being topped by overburden

2Although Commission Procedural Rule 44(b), 29 C.F.R. § 2700. 44(b),

requires that a hearing be held within ten (10) days of the receipt of a
request for hearing, November 24, 1992, was the earliest date available to try
and to hear the Application. Therefore, compelling reasons existed to extend
the time within which the hearing was conducted.
sThe facility is a limestone quarry located near White Sulphur Springs,
West Virginia. The quarry is owned and operated by R.B.S. and was generally
described by Snyder as being approximately "U" shaped, as having a limestone
highwall topped by overburden ranging in depth from 0 feet to 80 feet and as
being mined in a step-like series of three benches each of which measures
approximately 70 feet in height. Witnesses for both parties essentially
agreed that limestone is mined at the quarry in the following sequence: the
face of the highwall is drilled and blasted, the resulting muck pile is loaded
into a waiting truck by a loader and the limestone is trucked from the pit.

2005

(including broken rock) that was soft and saturated with water.
According to Brooks the overburden was unstabl~ and some had
fallen previous to July 30.
Brooks described the muck pile that he was loading as being
approximately 45 feet high. In addition to the highwall, he
stated that he was concerned about material coming off of the
muck pile. According to Brooks, both the highwall and the muck
pile were too high for him to have easy visibility of their tops
from his seat in the loader's cab. Brooks stated he was
concerned that if the loose, unconsolidated material fell from
the highwall he would be unable to get out of the way.
Brooks further stated that he had other visibility problems
in that a cab protector above the windshield of the loader also
restricted his view upward. 4
Brooks testified that on July 28, an effort had been made to
scale the loose, unconsolidated material on top of the highwall,
but that he believed the resultwasonly to loosen the overburden
further and to make it more likely to come down. He described
himself on July 30, as being tense and uncomfortable and unable
to do his job. As a result, Brooks claimed that he drove the
loader out of the pit 1 parked it and spoke with his foreman, John
Harless.
According to Brooks, he told Harless that he did not want to
return to work at the muck pile because the highwall was unsafe
and the muck pile was too high for the visibility he required.
He stated that he offered to do other work - - specifically, to
help get the loose, unconsolidated material down from the
highwall. In Brooks 9 version of the events~ Harless told him to
wait. Shortly after that, Snyder arrived.
Brooks stated that Snyder asked him what was going on?
Brooks responded that the company needed to take care of the
highwall, that it was unsafe and that it needed to be scaled.
Brooks testified that Snyder asked him several times if he were
going to go back to work at the muck pile and load the truck.
Brooks indicated to Snyder that he would have to think about ito
{Brooks explained that he was nth inking about his life. ii)

4
Brooks described the cab protector as offering protection to the
windshield from falling or flying rock and as consisting of a series of metal
bars extending about 5 inches from the top of the cab over the windshield and
being about 3 1/2 inches thick. Snyder testified that the cab protsctor was
not new and had been standard equipment on the loader since the first day the
loader was operated at the quarry.

2006

Brooks testified that Harless said to Snyder that while
Brooks was thinking they should go into the pit and look at the
situation. Brooks indicated that the two men went to where he
had been working but that he did not see them look at the
highwall, rather that they looked at the muck pile. Brooks
stated that when they returned, Harless asked him if he had made
his decision and that Brooks responded he was still thinking. He
also stated that he told them he would help Harless get the loose
material down from the highwall, but that until he was told what
to do he would stay put.
According to Brooks, it was at this point that Snyder told
him that he was fired. Brooks stated he shook hands with Snyder,
told him that it had been a pleasure working for him and said
that if Snyder ever needed him again to just give him a call.
Brooks testified that after he was fired he filed a
discrimination complaint with MSHA, as well as a safety complaint
about the hazardous nature of the area where he was working.
Brooks was persistent i11.maintaining that the condition of
the highwall was the source of his safety concerns. He stated
that if the highwall had been safe he would not have had any
concerns and would have continued to work.
The Secretary then called Brendle to testify. Brendle
stated that he went to the quarry on August 11, 1992, to view
the area where Brooks had been working. While at the quarry,
Brendle issued a Section 107(a), 30 u.s.c. § 817(a), imminent
danger closure order with an associated Section 104(a),
30 u.s.c. § 814(a),· citation alleging, among other things, that
approximately 40 feet of unconsolidated dirt and stones (the
overburden) at the top of the south wall section of the highwall
constituted an imminent danger and a violation of mandatory
standard Section 56.3131. 5 Go Exh. 4. Brendle maintained

standard states:
Pit or quarry wall perimeter.
In places where persons work or travel in performing their assigned
tasks, loose or unconsolidated material shall be sloped to the angle of repose
or stripped back for at least 10 feet from the top of the pit or quarry wall.
Other conditions at or near the perimeter of the pit or quarry wall which
create a fall-of-material hazard to persons ~hall be corrected.
30 C.F.R. § 56.3131. R.B.S. is contesting the validity of the order/citation,
including the alleged violation of Section 56.3131.

2007

that the edge of the area encompassed in his order/citation was
even with the muck pile Brooks was loading and that the
conditions he cited endangered Brooks.
Brendle also testified that as a result of Brooks' safety
complaint, MSHA Inspector Carl Sneed had gone to the quarry the
day after Brooks was fired (July 31, 1992) and had issued a
Section 107(a) imminent danger withdrawal order with an
associated section 104(a) citation that cited a violation of
mandatory safety standard Section 56.3200. 6 Gov. Exh. 3. This
order/citation stated in part that loose, unconsolidated
material, was present along the top of the catch bench in the
west section of the pit for approximately 100 feet. Inspector
Sneed did not testify, but Brendle stated that he understood
Sneed's order/citation to have been issued for the same general
area of the quarry that he, Brendle, had cited. 7 Brendle
believed it was possible that Brooks had been endangered by the
conditions cited by Sneed, but he did ~ot know for certain.
Brendle stated that in any event, the condition of the highwall
that he cited on August 11 was "atrocious."
Brendle testified that on July 30, Brooks was working under
overburden that consisted of large stones and fill dirt made
loose by rain. In addition, Brooks had the highwall to his right
as he worked, and Brendle believed that because he had to turn to
his right to look at the highwall and because of the highwall's
height, Brooks~ vision was obscured and he could not detect any
loose material that might be coming down near him. Brendle also
believed it possible that the cab protector further obscured
Brooks' vision. Brendle feared that any falling loose material
could travel up to 150 feet from the base of the highwall if the

~The standard states~

Correction of hazardous conditions.
Ground conditions that create a hazard to persons shall be taken down or
supported before other work or travel is permitted in the affected area.
Until corrective work is completed 0 the area shall be posted with a warning
against entry and when left unattended a barrier shall be installed to impede
unauthorized entryo
30 C.F.R. $ 56.3200. R.B.S. is also contesting the validity of this
order/citation. including the alleged violation of Section 56.3200.

7

There was confusion about directional references at the quarry. Sneed
referred in his order/citation to the west section of the pit, Brendle
referred in his testimony to the south wall section, and Snyder, if I
understood him correctly and who I assume knows best, spoke of the area
involved as the southeast corner of the pit.

2008

material hit something on the way down and bounced: In Brendle's
opinion, Brooks clearly was working within a distance from where
he could have been injured by falling material.
Brendle also stated that Snyder told him he had fired Brooks
because Brooks said. that he would not load any material piled
higher than the windshield of the loader, and be=ause Brooks
expected to be paid on July 30 for a full day, even though he had
stopped operating the loader around noon.
Finally, Brendle
stated that after Inspector Sneed had issued the order/citation
on July 31, Sneed allowed the muck pile on which Brooks had been
working to be totally cleared.
(In other words, Sneed allowed
normal work to continue in the area where Brooks had been
working.)
Brendle explained that he did not agree with Sneed's
decision in this regard, that he had called Sneed at the time
he, Brendle, issued his order/citation to express his
disagreement and to advise Sneed of what he was going to do, and
that in so doing, he found out that Sneed had not inspected the
top of the highwall prior to issuing the order/citation on July
31. Nonetheless, Brendle stated that it was possible Sneed was
in a better position to evalua.te the. conditions under which
Brooks had worked on July 30 than he, Brendle, was.
THE RESPONDENTS' WITNESSES

After the Secretary rested, the Respondents presented their
case through the testimony of three witnesses:
Snyder, Harless
and Ricky Massey, a fill-in laborer. Not surprisingly, they
offered a different version of events.
Snyder stated that around 11:00 A.M. on the morning of
July 30, 1992, he was at his office when he received a telephone
call from Harless. Harless informed Snyder that Brooks was
refusing to load anything higher that the windshield of the
loader" According to Snyderp muck piles at the quarry are
typically 40 to 45 feet high" Thusp of necessityr a loader
operator must load material that is higher than the windshield.
Therefore, Snyder asked Harless if he was sure Brooks had said
that he would not load such material, and Harless replied,
01
Yes" uu Harless suggested to Snyder that he come to the quarry
and talk to Brooks"
Once at the quarry, Snyder found Brooks and the parked
loader outside of the work area. Snyder asked Brooks what the
problem was and Brooks replied, Hit 1s the same old s t, Harless
doesn't know what he
doing.n Snyder said to Brooks that

2009

Harless had told him that Brooks refused to load anything higher
than the windshield of the loader. Snyder asked Brooks two or
three times if this were true, and Snyder answered, "Yes." 8
Harless then suggested that he and Brooks look at the area
and see what the problem was. Snyder stated that he and Harless
went to the muck pile and that he did not see anything that he
believed was unsafe. Snyder expressed the opinion that there was
nothing inherently unsafe about loading material that was higher
than the cab or the windshield of a loader.
After Snyder and Harless returned from the muck pile, Snyder
stated that he asked Brooks again if he would not load material
that was piled above the cab of the loader, and Brooks stated
that he would think about it. After he had thought about it,
Brooks indicated to Snyder that he had come to the quarry that
day expecting to work and that he intended to be paid for a day's
work. Snyder responded, "No you're not," or words to that
effect, and told Brooks that he was fired. Snyder stated that he
discharged Brooks for two reasons: (1) for refusing to load
material higher than the winq~hield of the loader, and (2) for
demanding a days's work when he had not worked a full day.
Brooks was paid to the time he was fired
approximately
12:00 P.M. - - and left the quarry.
During cross-examination, Snyder stated that he was certain
that in the course of their conversation on July 30, Brooks had
not made any statement about his safety and the condition of the
highwall. However, counsel for the Secretary read to Snyder from
a transcript of Snyder's unsworn interview with Brendle
concerning Brooks' discharge. In the transcript, Snyder was
quoted as telling Brendle that Brooks had said to him, "It's the
same old s t, Harless doesn't know what he is doing and I am not
going to risk my safety or life under the highwall. 11 Snyder
indicated that he had made the statement to Brendleo
Snyder also stated that at no time during his conversation
with Brooks did Brooks offer to do other work. Snyder stated
thatp in fact, there was nothing unsafe about loading material
piled higher that the cab of the loader and that July 30 was the
first time Brooks had ever stated he would not load such
materialo
Snyder also stated the he believed the area encompassed by
order/citation of July 31 was at least 200 feet from
where Brooks was working on July 30; and that the area
Sneed~s

8

r asked Snyder if he had questioned Brooks as to why Brooks would not
load higher material, and he stated that he had not. He explained that he
could not foresee any conditions under which the practice to which Brooks
objected would be hazardous.

2010

encompassed by Brendle's order/citation of August 12, although it
extended somewhat closer to the area where Brooks was working was
nonetheless 150 feet away from Brook's work station.
Snyder maintained that on July 30, Brooks was not in any
danger. The overburden under which Brooks was working had been
stripped back.
It was not loose or unconsolidated. To support
his opinion he noted that after issuing his order/citation, Sneed
had permitted the entire muck pile on which Brooks was working to
be loaded and that it took approximately 40 hours to do so.
Jimmy Harless, Brooks' supervisor, testified next. He
stated that scaling on the highwall had been underway prior to
July 30, and that on July 30 the area scaled was about 200 .feet
from where Brooks was located and that any material knocked loose
came down on a barricaded bench, not near Brooks. Harless
testified that on July 30 he was advised by the driver of the
truck Brooks was loading that Brooks wanted to talk to him.
Brooks told Harless that he would not load anything above the
height of the loader's windshield. 9
According to Harless, Brooks made no reference to safety
concerns about the highwall or the muck pile. However, on
cross-examination, Brooks' counsel asked Harless about the
following exchange during Harless' unsworn interview with
Brendle~

Q.
On July 30 . . . Brooks . . . said that
he did no feel safe working at the highwall
. and he was . . . fired that day.
Do
you want to . . . tell me what you know?
A.
The part of the highwall that he was
talking aboutv he was approximately 300 to
400 feet away from it and the shot he was
mucking outv there was no big stuff over his
head. Then he told me he was not going to
load anything over windshield height . . .
Resp. Exh. 3.

Harless agreed that this is what he had said.

Harless stated that after talking to Brooks he called
Snyderv who came to the quarry to talk to Brooks. During their
conversationv Snyder stated to Brooks that Harless had told him
Brooks had refused to load anything above the height of the
loaderus windshield, and Snyder asked, "Is that what you said?"
Brooks respondedv 11 Right." Snyder let Brooks know that he wanted
9

Harless noted that because muck piles at the quarry are usually piled
well above windshield height, it would have been impossible to operate a front
end loader at the quarry under Brooks' restrictions.

2011

Brooks to return to work, and Brooks stated that he would have to
think about it. Snyder and Harless then went to look at the area
where Brooks had been working, and according to Harless, did not
see anything that was unsafe.
When the two returned, Brooks told Snyder that he had not
made up his mind about whether he would return to work, and he
indicated he would continue to sit and draw his pay. Harless
stated that Snyder said, "No you won't.", and Snyder fired
Brooks.
Harless agreed with Snyder that Sneed's order/citation
of July 31 covered an area that was approximately 200 feet from
Brooks, and that although Brendle's order/citation of August 12
was more inclusive, the area concerned was still approximately
150 feet from where Brooks had been working on July 30. Harless
believed that the conditions referenced in both order/citations
could not have endangered Brooks.
Ricky Massey was the last to testify. He stated that he had
known Brooks "for years." He,.also stated that on July 30,
scaling was being conducted on the highwall, but in an area that
was barricaded and that was removed from where Brooks was
working. The scaling did not endanger Brooks. He agreed with
Snyder and Harless that the conditions cited in the July 31 and
August 12 order/citations were physically distant from where
Brooks had been working and would have posed no danger to him.
THE ISSUE

The essence of Brooks' complaint is that he engaged in
protected activity - - i.e., a protected work refusal - - and
that his subsequent discharge was motivated by that activity" A
miner has a right under Section 105(c} of the Mine Act to refuse
work if the miner has a good faithv reasonable belief that such
work is hazardous. Secretary on behalf of Pasula Vo
consolidation Coal co .. , 2 FMSHRC 2786, 2797-2800 (October 1980)
rev 0 d on other grounds sub. nom. Consolidation Coal Company v.
Marshall, 663 F.2d 1211, 1216 N.6, 1219 (3rd Cir. 1981); Miller
Vo Consolidation Coal Co., 687 F.2d 194-195 (7th Cir. 1982).
A
good faith belief 1vsirnply means honest belief that a hazard
exists.ii Secretary on behalf of Robinette v. United Castle Coal
Co.u 3 FMSHRC 803, 807-12 (April 1981)"
As previously stated, the standard of review in this
proceeding
whether the Secretaryvs legal theory, as well as
the Secretaryis factual assertions, are not frivolous.
See Jim
Walter Resources, Inc., v. FMSHRC, 920 F.2d 738,747 (11th Cir.
1990). Although the Secretary•s legal theory of a protected work
refusal may or may not be sustained at a trial on the merits, it
is certainly an arguable legal position given the testimony of
Brooks that he refused to continue loading because of his concern

2012

about the dangers presented by the highwall, his testimony that
he expressed those concerns and the undisputed
factthatimmediately subsequent to his refusal he was terminated.
While there is an obvious disagreement over whether, in
fact, Brooks was in any danger on July 30 and/or reasonably could
have believed himself to be in any danger, there is no doubt that
some parts of the highwall contained loose, unconsolidated
overburden, and I believe that resolution of questions about the
actual conditions under which Brooks was working and/or
reasonably believed he was working require credibility
determinations and factual findings more appropriately made after
a full trial of the issues. Further, the same is true concerning
whether, as required by the Mine Act, Brooks "communicate[d] ••
• his belief in the safety • • • hazard at issue." Secretary on
bebalf of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126,
133 (February 1982); See also Simpson v. FMSHRC, 842 F.2d 453,
459 (D.C. Cir 1988).
Thus, I conclude that while th~re is conflicting testimony
on these fundamental issues, it cannot be found that the
Secretary's legal theory of discrimination and her factual
assertions are clearly fraudulent, clearly without merit or
clearly pretexual. Therefore, I find that Brooks' complaint is
"not frivolously brought" and that Brooks is entitled to
temporary reinstatement.
While I can well understand that such reinstatement may seem
an unwarranted intrusion on R.B.s.•s prerogatives to control the
makeup of its workforce, it is important to remember that the
right to temporary reinstatement and the "not frivolously
brought" standard represent the judgement of Congress on the
protection individual miners should be afforded as the result of
playing their part in ensuring the safety of mining facilities
and how the risk of possible discharge should be borno See Jim
Walter Resourcesu gio Wo2d at 748 no llo
ORDER

Respondent is ORDERED to immediately reinstate Paul Ho
Brooks to the position from which he was discharged on or about
July 30 0 1992 0 or to an equivalent positionq at the same rate of
pay and with same equivalent dutieso

P~/(7~1K,._ ~
David ~ ~~;:rrAdministrative Law Judge
(703)756-5232
'

2013

Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203
(Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston,
WV 25322 {Certified Mail)
/epy

2014

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

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 92-267-M
A/O No. 11-01578-05537
Wedron Silica Plant

WEDRON SILICA COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for the Petitioner; Peter Comodeca, Esq.,
Calfee, Halter.and Griswold, Cleveland, Ohio,
for the Respondent

Before:

Judge Melick

This case is before me upon a petition for assessment
of civil penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Act). At hearing,
Petitioner filed a motion to approve a settlement agreement
and to dismiss the case. Respondent has agreed to pay the
proposed penalty of $700 in full. I have considered the
representations and documentation submitted in this case,
and I conclude that the proffered settlement is appropriate
under the criteria set forth in Section llO(i) of the Acto
s
WHEREFORE, the motion for appr val of settlemen
GRANTED, and it is ORDERED that Re ondent pay a penal y of
$700 within 30 days of this order. In $cordance with the
settlement agreementv the "signif 'c nt
d substantial'
b"ect citationo '
findings are hereby deleted from h

II I
i

Gary Melick
Administrative Law

2015

dge

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn, 8th Floor, Chicago, IL 60604
(Certified Mail)
Peter J. Comodeca, Esq., Calfee, Halter and Griswold,
800 Superior Avenue, suite 1800, Cleveland, Ohio 44114-2688
(Certified Mail)
/lh

2016

PBDBRAL l!l'IllB SAPBTY DD BBAL'l'JI RBVZBW COlila:SS:COJI
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

KEYSTONE COAL MINING CORP.,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. PENN 91-1480-R
citation No. 3687890;
8/21/91

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

Emilie No. 1 Mine
Mine ID

36-00821

Docket No. PENN 91-1454-R
Citation No. 3687888;
8/14/91
Margaret No. 11 Mine
Portal # 2
Mine ID

36-08139

Docket No. PENN 92-54-R
Citation No. 3687895;
9/20/91

SECRETARY OF LABORu
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Emilie

No. 1 Mine

Mine ID

36-00821

CIVIL PENALTY PROCEEDING
Docket No. PENN 92-114
A.C. No. 36-00821-03761

Petitioner

Emilie No. l Mine

V.

KEYSTONE COAL MINING CORP.,
Respondent

Docket No. PENN 92-119
A. C. No. 36-08139-03512
Margaret No. 11 Mine No. 2
Portal

2017

DECISION

Appearances:

Before:

R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for Keystone Coal
company;
Edward H. Fitch, Esq., and Carl c. Charneski,
Esq., U.S.,Department of Labor, Office of the
Solicitor, Arlington, Virginia, for the Secretary
of Labor

Judge Weisberger
Statement of the Case

In these consolidated contests and civil penalty proceedings
the Secretary (Petitioner) filed petitions for assessment of
civil penalty alleging violations of 30 C.F.R. § 70.lOO(a). on
February 7, 1992, the Operator (Respondent) filed a Motion for
Summary Decision, which was replied to by the Secretary on
March 27, 1992. In a telephone conference call between the
undersigned and counsel for both parties on April 9, 1992,
counsel were requested to provide proper citations in the record
to certain assertions set forth in their respective memorandum
submitted in connection with the Operator's Motion. On May 5,
1992, an order was issued denying the Motion for Summary
Decisiono
Subsequent to notice, the cases were heard on June 2,3,4,
1992, in Pittsburgh, Pennsylvania, and pursuant to counsels'
agreement, on July 21, and 22, 1992, in Falls Church, Virginia.
Both parties filed post hearing briefs on October 9, 1992.
On October 9 0 1992, American Mining Congress filed a Motion for
leave
file an amicus
brief u and leave was granted in an
order issued October 26 9 1992 9 and the amicus curiae brief, was
deemed filed as of a October 9 0 19920 Respondent filed a Reply
Brief on October 20 0 19920 On October 2lu 1992, Petitioner filed
a Motion for an Extension of Time to file a Reply Brief from
November 13 0 to November 25 0 1992v and Respondent objected to
this Motiono On October 26u 1992 0 an order was issued granting
Petitioner until November 25 0 1992 0 to file a Reply Brief
On
November 25 5 1992 0 Petitioner filed a Reply Brief"
o

Io

Introduction

issue in these cases are three citations issued by MSHA
inspector Brady Cousins on August 14, August 21, and
September 20, 1991. Each citation alleges violations of
30 C.F.R. § 70.lOO(a), based on a single respirable dust sample
taken during one shift which indicated dust concentrations

2018

exceeding 2.0 milligrams per cubic meter of air (hereinafter
referred to as 2.0 mg/m3). Specifically, the issue presented is
the validity of the Secretary's Spot inspection program, which
commenced July 1991, requiring the citation of an operator for
non-compliance based on dust samples obtained in a single shift.
IIo

Statutory Background

Section 70.lOO(a) supra, repeats the language of Section
202(b) (2), of Federal Mine Safety and Health Act of 1977 ("the
1977 Act") as follows:
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
working of each mine is exposed at or below 2.0
milligrams of respirable dust per cubic meter of air as
measured with an approved sampling device and in terms
of an equivalent concentration determined in accordance
with § 70.206 (Emphasis supplied)
"Average concentration" 'is not defined in the Regulations,
but it is defined in Section 202(f) the 1977 Act, 30 u.s.c.
§ 842(f) as follows:
For the purpose of this title, the term "average
concentration" means 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 month period following the date of enactment of
this Act, over a number of continuous production shifts
to be determined by the Secretary and the Secretary of
Healthv Educationv and Welfarev and (2) as measured
thereafter" over a single shift only. unless the
Secretary and the Secretary of Health, Education. and
Welfare find, in accordance with the provisions of
section 101 of the Act, that such single shift
measurement will not, after applying valid statistical
technigues to such measurement. accurately represent
such atmospheric conditions during such shifto
(Emphasis supplied)
Section 202(f) of the Federal Coal Mine Safety Health Act of
(~the 1969 Act") as pertinentv contains language identical
to that set forth in Section 202(f) of the 1977 Act. It reads as
1969

follows~

For the purpose of this subchapter, the term naverage
concentration" means a determination which accurately
represents the atmospheric conditions with regard to
respirable dust to which each miner in the active

2019

workings of a mine is exposed (1) as measured, during
the 18 month period following December 30, 1969, over a
number of continuous production shifts to be determined
by the Secretary and the Secretary of Health,
Education, and Welfare, and (2) as measured thereafter,
over a single shift only, unless the Secretary and the
secretary of Health, Education, and Welfare find, in
accordance with the provisions of Section of Section
811 of this title that such single shift measurement
will not, after applying valid statistical techniques
to such measurement, accurately represent such
atmospheric conditions during such shift.
On July 17, 1971, the Secretary of the Interior and the
Secretary of Health, Education, and Welfare made the finding
required by Section 202(f) as follows:

Notice of Findinq That single Shift Measurements of
Respirable Dust Will Not Accurately Represent
Atmospheric Conditions During Such Shift.
Section 202(f) of the Federal Coal Mine Health and
Safety Act of 1969 (30 u.s.c. 801; 83 Stat. 742)
provides that the term "average concentration" means 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 period ending June
30, 1971, over a number of continuous production shifts
to be determined by the Secretary of Health, Education,
and Welfare, and (2) as measured thereafter, over a
single shift only, unless the Secretary of the Interior
and the Secretary of Health, Education, and Welfare
findp
accordance with the provisions of Section 101
the Actp that such single shift measurement will
not~ after applying valid statistical techniques to
such measurementu accurately represent such atmospheric
conditions during such shift, that is, the shifts
during which the miner is continuously exposed to
respirable dusto
Notice
hereby given thatu in accordance with
Section 101 of the Actu and based on the data
summarized below, the Secretary of the Interior and the
Secretary of Health, Education, and Welfare find that
single shift measurement of respirable 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

20 20

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. In
accordance with the sampling procedures set forth in
Part 70, Subc~apter o, Chapter I, Title 30, Code of
Federal Regulations, these current basic samples were
submitted to the Bureau over a period of time prior to
the date the analysis was conducted. The average
concentration of the current 10 basic samples was
compared with the average of the two most recently
submitted samples of respirable dust, then to the three
most recently submitted samples, then to the four most
recently submitted samples, etc. The results of these
comparisons showed that the average of the two most
recently submitted samples of respirable dust was
statistically equivalent to the average concentration
of the current basic samples for each working section
in only 9.6 percent of the comparisons. Figure 1 lists
the results of the comparisons and shows 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. Re?. 13286 (July 17, 1971) (K-46 emphasis supplied)
("1971 Notice")
See, Eastern Associated Coal Corp, 7 IBMA 14,
29 (September 30, 1976). (The Interior Board of Mine Operator's
Appeals took cognizance of the July 17, 1971 finding made
pursuant to Section 101 of the 1969 Act}.
On April 8, 1990, in connection with the promulgation of the
Respirable dust standards, 30 C.F.R. § 70.100 et seg., the
Secretary published the following language in the Federal
~egister under the heading Discussion of Major Issues~
The Secretary of ithe Interior and Secretary of Health,
Educationu and Welfare conducted continuous multi-shift
sampling and single-shift sampling and, after applying valid
statistical techniquesu determined that a single-shift
zespirable dust sample should not be relied upon for
compliance determinations when the respirable dust
concentration being measured was near 2.0 mg/m3.
~ Keystone Exhibit 46 (K-46) was submitted, post hearing, by
Respondent along with a covering letteru dated September 28,
1992, wherein Respondent requested I take judicial notice of this
document. The Secretary in her brief, does not argue that this
document is not a proper matter for judicial notice. Hence, I
take judicial notice of Keystone exhibit 46, a copy of 36 Fed.
Reg. 13286 6 13287 (July 17, 1971).

2021

Health, Education, and Welfare prescribed consecutive multishift samples to enforce the respirable dust standard.
45 Fed. Reg. 23997 (April 8, 1980) (K-25) ("1980 comment").
III.

Regulatory Dust Standards
A.

Operator Sampling

On April 8, 1980, Regulations were promulgated requiring
operators to submit five dust samples, collected on consecutive
shifts, on a bimonthly basis for each mechanized mining unit.
(30 C.F.R. § 207(e) the results of such sampling are reported to
the operator and include not only "the concentration of
respirable dust ••. for each valid sample" but also "the average
concentration of respirable dust •.. for all valid samples"
30 C.F.R. § 70.210(a) (3) and (4) (emphasis supplied). Any
citation to the operator is based upon the average of the samples
(K-23, p.3). Under 30 C.F.R. § 70.208 an operator is required to
submit one sample every two months for each designated area. If
that sample exceeds the respirable dust standard, the operator is
required to take five more samples. 30 C.F.R. § 70.208(c). If
the average of these five samples exceeds the standard, a
citation may then be issued (K-23, p.3, K-25, p. 23992).
In ruling on the challenges to the dust standards
promulgated in 1980, the Court of Appeals justified its decision
to uphold the standards, in part, upon the fact that:
All compliance determinations are based upon the
average dust concentration of five samples. Id.
§§ 70.207(a), 208(c), 210(a) (4).
This system minimizes
the variability associated with the result of a single
sample or several samples taken on a single shifto
American Mining Congress Vo Marshallu 671 Fo2d 125lu 1259 (10th
Ciro 1982) o
b. MSHA Sampling
lo

Prior to July 1991

With regard to MSHA sampling to determine compliance with
Section 70.lOO(a) supra, the MSHA Underground Manual, (March 9u
1978)u (Keystone 21) under the heading Safety and Health
Technical Inspectionu does not set forth any levels of dust
concentration that would be considered out-of compliance on the
basis of a single sample. Alsou the MSHA handbook provided to
inspectors dated Feb 15, 1989u (Keystone 18, June 2 Tr. 114-115),
states in the preface that it 11 • • • sets forth procedure for MSHA
personnel to follow when conducting health surveys,
investigations, and inspections of underground and surface coal

2022

mines", and provides that "a decision of non compliance cannot be
made on one sample" (K-18, 1-12).
2. Spot inspections after July 1991
In the spring of 1991, a coal Mine Respirable Dust Task
Group ("task group") was established by the Assistant Secretary
for Mine Safety and Health, William Tattersall, to "evaluate the
agency's respirable dust program" (June 3 Tr. 7). The task group
decided to conduct a study to ascertain the actual levels of dust
that miners are exposed to (June J, Tr.8). As part of the study,
dust results were to be obtained from a single shift. 2
On June 27, 1991, Assistant Secretary of Labor, William J.
Tattersall, announced the creation of a program of special spot
inspections to audit coal mines for respirable coal dust
sampling, dust control and training (G-18).
·
The Respirable Dust Spot Inspection and Monitoring Program
for Underground Mines, ("Spot Inspection") program was initiated
on July 15, 1991. The Spot Inspection program consisted of two
parts. Part I of the program,-involved the actual spot inspection
which included the collecting of dust samples, reviewing dust
plan parameters and sampling procedures, and interviewing mine
personnel. Part II of the program consisted of monitoring the
operators' respirable dust sampling activities. Effective
July 15, 1991 MSHA inspectors were instructed, as reflected in
the 11 Respirable Dust Spot Inspection Procedures" memorandum and
revisions thereto issued to certain MSHA inspectors, that a
citation was to be issued in the event of a single shift sample
at or exceeding th~ levels set forth in that document (G-12).
such memoranda were not made part of the MSHA Program Policy
Manual, and were not the subject of rulemaking.
The Respirable Dust Spot Inspection Procedures sets forth a
table, prepared by Thomas Tombu a member of the task group who is
the Chief of the Dust Divisionu Pittsburgh Safety and Health
Technology Center. The table is based upon a statistical
analysis, which led Tomb to conclude that if a single dust sample
yieldsff at a minimum, the level of dust set forth in the table

2

A question arose in the task group as to what an inspector
should do if, when collecting samples as part of the spot
inspection monitoring process, the data showed a "very high
probability" that the dust exposure exceeded 2.0 mg/mJ. (June J,
Tr.57) It was decided that in these circumstances a citation
should be issued.

2023

i.e. 2.5 mg/m3, then there is a 95 percent level of confidence
that the regulatory standard of 2.0 mg/m3 was exceeded. 3
Pursuant to the CBE spot inspection program, single shift
samples obtained by Cousins on August 13, 21, and September 20,
1991, contained the allowing levels of dust respectively. 4.4
mg/mJ, 2.8 mg/m3 and 4.7 mg/m3. Cousins applied the figures in
the table set forth in the Respirable Dust Spot Inspection
frocedures, and issued citations alleging, in each instance,
violations of the Regulatory standard i.e. average concentration
in excess of 2.0 mg/m3.
IV.

Analysis and Discussion

In essence, Respondent and Amicus seek dismissal of these
citations on the ground that the spot inspection program, on
which they are predicated, is invalid, as inter alia, the policy
requiring the issuance of citations based on results of a single
sample, was adopted without rulemaking. On the other hand, the
Secretary argues, inter alia, that the spot inspection program,
including the issuance of citations based on single samples, has
been authorized by Congress, is grounded upon accepted
scientific principles, and is consistent with the sampling
strategy of Federal agencies. For the reasons that follow, I
find that rulemaking was required to institute a new policy of
issuing citations based on a single sample. Since the new policy
was not adopted through rulemaking, it is not valid. Thus,
citations issued pursuant to this policy are also invalid. It
thereafter is not necessary to decide whether the statistical
analysis underlying the new policy provides a reasonable basis
for the policy. Even if this analysis is reasonable, it can not
support a change in testing policy that has not been promulgated
subject to rulemakingo
Also

my finding 0 that the single sample program is not

valid as it was not adopted by irulemaking 0 is dispositive of this
case. Thus 0 it is not necessary to decide the balance of the

issues raised by the partieso
Ao

The 1971 Noticer 36 Fedo Rego supra

Under Section 202(f) of the 1977 Act 0 suprau a
determination of the ' 9 average concentrationg' of respirable dust
for purposes of ascertaining compliance with the mandatory
standard of exposure to less than 2o0 mg/m3 (Section 202(b)
3

In this connection, Tomb testified that each of the three
single full~shift samples generated greater than a 97.5 percent
"confidence" that the average concentration of the dust in the
mine atmosphere for the sampled shift exceeded the dust standard.
(June 3, Tr. 90, 166-167)

2024

supra, and Section 70.lOO(a) supra, is based on a measurement
over a single shift unless the Secretary of Interior and Health,
Education and Welfare find 11 • • • in accordance with the provisions
of Section 101 of the Act, that such single shift measurement
will not, after applying valid statistical techniques to such
measurements, accurately represent such atmosphere condition
during such shift" ..
Thus, under the 1977 Act, the Secretary can cite an operator
for a violation of the dust standard based on a single shift
sample, unless the Secretary and the Secretary of Health
Education and Welfare find that a single shift sample will not
accurately represent such atmospheric conditions during such
shift. Such a finding has been made in the 1971 Notice.
The 1971 Notice, 36 Fed. Reg. supra, is entitled Notice of
Finding that Single Shift measurement of Respirable Dust will not
Accurately Represent Atmospheric Conditions During such shift.
It clearly and unambiguously provides as follows:
Notice is hereby given that in. ,accordance with section
101 of the Act, and based on the data summarized below,
the Secretary of the Interior and the Secretary of
Health, Education, and Welfare find that single shift
measurement of respirable dust will not, after applying
valid statistical techniques to such measurement,
accurately represent the atmospheric conditions to
which the miner is continuously exposed.
Thus, reading the 1971 Notice along with Section 202(b) (2)
supra, and Section 202(f), supra, it appears that the Secretary
is bound not to make dust determinations based on a single shift
sample.
In essence 0 the Secretary argues that the 1980 commentu
45 Wedo Reg" supra, supersedes the 1971 Noticeu 36 Fed Rego
suprau inasmuch as the former contains a finding that only single
shift samples 01 near" 2. o mg/m3 are not reliable. 4 The 1980
The Secretary also argues that my order of May 5 0 1992 0
denying Respondent 9 s Motion for summary Decision, constitutes the
law of the case insofar as I noted that the Secretary had not
made an explicit finding in accordance with Section lOl(a) of the
Actu as to what dust concentrations are to be considered "near"
2.0 mg/m3, and found that 69 oooit has not been established that
the Secretary has made a finding, in accordance with Section
lOl[a) of the Act concerning the unreliability of single shift
samples in general." Order of May 5, 1992 at 3-4.
The order was based on the record before me at the time
which did not contain on any reference by either party, to the

2025

comment does not explicitly refer to the 1971 Notice or its
findings. Specifically, it does not explicitly indicate that it
is superseding the 1971 Notice. Since the 1971 Notice contains
findings made pursuant to Section 101 supra, based on "valid
statistical techniques" as required of Section 202(f) supra, it
is clear that it can not be rescinded or superseded without prior
notice of the proposed rule through publication in the Federal
Register and the opportunity for the public to comment (5 u.s.c.
§ 553 (b) (d)).
In the 1971 Notice (36 Fed. Reg, supra), it is
explicitly stated that "notice is hereby given" that, based on
reliable statistical techniques, the Secretary of the Interior
and the Secretary of Health, Educational and Welfare "find" that
a single shift measurement will not accurately represent the
atmospheric conditions to which a miner is exposed. In contrast,
the language of the 1980 comment, 45 Fed Reg. supra, under the
heading Discussion of Major issues, does not explicitly state
that it is giving notice that a finding is made with regard to
Section 202(f) of the Act. In contrast, it refers to the fact
that the Secretary of the Interior, and the Secretary of Health,
Education, and Welfare, 0 conducted" sampling, and after applying
statistical techniques, "determined'' that a single shift should
not be relied on when the dust concentration was near 2.0 mg/m3.
Thus, the language is ambiguous. Since the operative verbs,
conducted, and getermined are in the past tense, it might be
concluded that this comment is a reference to the earlier 1971
finding, rather than a new contemporaneous finding based on valid
statistical techniques. In this connection, I note that the 1980
comment does not define the term "near 2.0 mg/m3" nor does it set
forth any statistical data or techniques that were applied in
making the determination referred to. I thus find that the
Secretary has not met its burden of establishing that the 1971
Notice was superseded by the 1980 comment. 5
contijdo

1971 Notice (36 Fed Reg. supra)o
As such the order is not the
law of the case with regard to the entire record presently before
me 0 including the 1971 Notice.
(36 Fed. Reg. supra).
:;. The Secretary also argues that the 1971 Notice 0 35 FecL

Reg 0 supra~ should be accorded no weightu inasmuch as the instant
single shift sampling strategy "bears no resemblance to the
Bureau of Mines data discussed in the 1971 Federal Register
Notice og {Post Hearing Briefc at 25). In other words, it is
argued that vaooothe type of measurement discussed in the 1971
Federal Register Notice
not at all like this single shift
measurement at issue in this case".
I find that any deficiencies in the statistical data relied
on by the Secretaries of Interior, Health, Education and Welfare
as set forth in the 1971 Notice (K-25) do not negate the fact

2026

Therefore, if the 1971 Notice has not been superseded, then
applying Section 202(f) supra, it might be concluded that a
measurement of the "average concentration" can not be made over a
single shift. 6
B.

The Requirement for Rulemaking

The finding in 1971, 36 Fed. Reg. supra, that compliance
determinations can not be based on a single sample, was
explicitly issued as rulemaking under Section 101 of the 1969
Act, as specifically required by Section 202(f) (K-46). Hence,
if rulemaking is required and was utilized in making such a
finding, it is clear that rulemaking is similarly required to
rescind the 1971 finding. As discussed above, infra IV(A), the
evidence does not clearly establish that the 1971 finding was
explicitly by rescinded by rulemaking, i.e., the 1980 comment,
45 Fed. Reg. suprg.
In addition, for the reasons that follow, I find that
rulemaking pursuant to the APA was required to promulgate a
program providing for complianpe determinations based on a single
sample. Notice and comment are required by the APA when an
agency is engaged in rulemaking defined as the "agency process
for formulating, amending, or repealing a rule." 5 u.s.c. §
551(5). A "rule" is broadly defined by the APA as: "the whole or
a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret,
or prescribe law or policy .••. "5 u.s.c. § 551(4). A wide
variety of statements issued by agencies meet this broad
definition. See, e.g., Batterton v. Marshall, 648 F.2d 694,
704-705 {D.C. Cir. 1980) (where the agency's selection of a
statistical methodology was found to constitute a rule under the
APA)3 Pickus v. United States Bd. of Parole, 507 F.2d 1107,
~)

cont. ad c

that they made an explicit unequivocal finding, in accordance
with Section 202(f) supra of the 1969 Actu that a single shift
measurement will not accurately reflect the atmospheric
conditions to which miners are exposedo
Due to the ambiguity of the 1980 comment. 45 Fed. Reg.
supraQ as to whether it was intended to supercede the 1971
finding as it pertains to dust concentrations not "near" 2.0
mg/m3u I do not base my decision regarding the validity of single
sample testing solely on a finding that the 1971 notice was not
superceded by the 1980 comment. Instead, for the reasons that
follow, I conclude that a program requiring the issuance of
citations based on single safe testing is not valid, as it was
not put into effect through APA rulemaking.

2027

1112-13 (D.C. Cir. 1974) (Board of Parole's guidelines limiting
discretion and affecting private interests deemed substantive,
not interpretive). Prows v. United States Department of Justice,
704 F. Supp. 272 (D.D.C. 1988), aff'd 938 F2d 274 (D.C. Cir.
1991) (where the Federal Bureau of Prisons• issuance of a program
statement affecting the financial obligations of prison inmates
was a rule subject to notice and comment requirements): Waste
Management, Inc. v. EPA, 669 F. Supp. 536, 538 (D.D.C. 1987)
(where the deferral of ocean incineration permits pending the
promulgation of new regulations was found to constitute a rule
under the APA) •
The Commission, in Drummond Company Inc., 14 FMSHRC 661
(May 5, 1992) recently addressed the issue of whether MSHA was
required to comply with the APA in adopting its policy concerning
"excessive history" penalties. In Drummond, supra, the
Commission addressed a program policy letter (PPL) which had been
issued to all operators. The Commission described the test for
whether an agency must comply with the APA as follows:
Advance notice and,public comment are required for
rules that are substantive or legislative, and thus
bear the force of law. ,lg. In the words of the
Batterton Court, legislative rules manifest the
following qualities:
Legislative rules • • • implement
congressional intent; they effectuate
statutory purposes. In so doing, they grant
rights, impose obligations, or produce other
significant effects on private interests.
They also narrowly constrict the discretion
of agency officials by largely determining
the issue addressedo Finallyv legislative
:rules have substantive legal effect" 648
Fo2d at 701-02 (footnote omitted).
14 FMSHRC at 684.
The Commissionv in Drummond, supra in analyzing whether the
program policy letter at issue was a substantive rule requiring
compliance with the APA took cognizance of the ntwo criteria"
test set forth by the o.c. Circuit in American Bus Ass 1 n v.
United States 627 F.2d 525, 529 (D.C. Cir. 1980) quoting Texaco
Vo FPCu 412 F.2d 740, 744 (3d Cir. 1969).
The Commission in
Drummond supra, noted that the first criteria is whether the
pronouncement acts prospectively, and the second criteria is
GQo • • whether a purported policy statement genuinely leaves the
agency and its decision makers free to exercise discretion"
14 FMSHRC supra at 686 quoting American Bus Ass'n, supra at 529.

2028

Applying these principles, the Commission in· Drummond,
14 FMSHRC, supra, held that a policy letter, setting forth a
program for increased penalties based on excessive history,
affects private interests in a substantial and present manner,
and as such is subject to rulemaking.
Applying the·above analytical framework to the case at bar,
I agree with the argument of amicus that "An agency statement
that establishes an entirely new basis for the issuance of a
citation unquestionably meets the APA's expansive definition of a
rule. This is particularly true when the existing standards and
MSHA's longstanding practices and procedures base compliance
determinations upon multiple samples 11 • 7
Specifically, prior to the implementation of the spot
inspection program, a citation would not have been issued based
on a single shift sample. In contrast, the spot inspection
program unequivocally deprives an inspector of discretion as it
clearly mandates that a citation shall be issued of a single
sample measures exceeds the appropriate value set forth in a
table provided to inspectors '{GX lZ P.2). In the event such a
citation is issued, as in the case at bar, the operator becomes
liable to pay a civil penalty. Prior to the spot inspection
program, no such liability would have been incurred as no
citations were issued on the basis of a single sample. Hence,
the spot inspection program definitely affects private interests
in a substantial manner. 8
Therefore since Petitioner did not engage in APA rulemaking
in setting forth its procedures for the spot inspection program
requiring citations to be is.sued based on a single shift sample,
the procedures are not valid, and the citations issued pursuant
to these procedures are to be vacated.

7 In this

connection, I note, as set forth by amicus, that
operator is required to submit five samples every two months
for each MMU (mechanized mining unit) on which compliance is
determined. ~, C.F.R. § 70.2070 It submits one sample for
each designated area. If such samples exceed the standard, it is
required to submit five additional samples on which compliance is
determined. see 3 C.F.R. § 70.208(c)." (Parenthesis added.)
9

u An

8

For these reasons I reject Petitioner's argument that the
spot inspection program only changes the "manner" in which the
Secretary will prove a violation, and does not violate the
operator's substantive rights.

2029

ORDER
It is ORDERED that Docket Nos. PENN 92-114 and PENN 92-119
be DISMISSED. It is further ORDERED that the following Notices
of Contests be sustained: Docket Nos. PENN 91-1454-R,
PENN 91-1480-R, and PENN 92-54-R. It is further ORDERED
that Citation Nos. 3687890, 3687888, and 3687895 be DISMISSED.

£~

Avram Weisberger
Administrative Law Judge

Distribution:
R. Henry Moore, Esq., Buchanan. Ingersoll, 57th Floor, USX Tower,
600 Grant Street, Pittsburgh, PA 15219 (Certified Mail)
Edward H. Fitch, Esq., Carl c. Charneski, Esq., Office of the
Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, 4th
Floor, Arlington, VA 22203 (Certified Mail)
Edward M. Green, Esq., American Mining congress, 1920 N street
N.W., Suite 300, Washington, DC 20036-1662 (Certified Mail)
nb

2030

PBDBRAL KDIB SAl'BTY DD HBAL'l'B ltBV:IBW' COJOD:SSJ:OJI
OFFICE OF ADMINISTRATIVE LAW JL.oGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.
HELEN MINING COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS

..
..
.
.
.
.
.
:

Docket No. PENN 92-704
A.O. No. 36-00926-03946
Docket No. PENN 92-705
A.O. No. 36-00926-03947
Docket No. PENN 92-537
A.O. No. 36-00926-03937
Docket No. PENN 92-536
A.O. No. 36-00926-03936
Docket No. PENN 92-565
A.O. No. 36-00926-03940
Docket No. PENN 92-732
A.O. No. 36-00926-03951
Docket No. PENN 92-789
A.O. No. 36-00926-03955

:
~

Docket No. PENN 92-641
A.O. No. 36-00926-03942

0
0

g

Docket No. PENN 92-439
No. 36-00926-03929

A.Oo
g

Docket No. PENN 92-419
(partial settlement)
A.O. No. 36-00926-03925
Docket No. PENN 92-664
A.O. Noo 36-00926-03945
Docket No. PENN 92-538
A.O. No. 36-00926-03938

:
:

2031

Docket No. PENN 92-521
A.O. No. 36-00926-03932
(settled on 9/22/92)

:
:
:
:
:

.
:
.:
.:

Docket No. PENN 92-564
A.O. No. 36-00926-03939
Docket No. PENN 92-534
A.O. No. 36-00926-03933
Docket No. PENN 92-535
A.O. No. 36-00926-03935
NOTICE OF CONTEST
PROCEEDINGS

HELEN MINING COMPANY,
Contestant

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

Docket No. PENN 92-597
A.O. No. 36-00926-03941

Docket No. PENN 92-407-R
Citation No. 3488593; 2/11/92

..
.
0

...
.

Docket No. PENN 92-408-R
Order No. 3488594: 2/13/92
Docket No. PENN 92-409-R
Order No. 3488670; 2/4/92
Docket No. PENN 92-410-R
Order No. 3488672; 2/8/92
Docket No. PENN 92-411-R
Citation No. 3488933; 2/12/92
Docket No. PENN 92-412-R
Order No. 3488595; 2/12/92
Docket No. PENN 92-413-R
Citation No. 3488854v 1/27/92
Docket No" PENN 92-414-R
Order No. 3488677; 2/13/92

0
0

Docket No. PENN 92-433-R
Citation No. 3488900; 3/26/92
Docket No. PENN 92-434-R
Citation No. 34889341 3/17/92
Docket No. PENN 92-435-R
Order No. 3708390; 3/28/92
Docket No. PENN 92-436-R
Order No. 3708391; 3/28/92

2032

DECISION APPROVING SETTLEMENT

Appearances:

Edward H. Fitch, Esq., Arlington, VA,
for Petitioner;
J. Michael Klutch, Esq., Pittsburgh, PA,
for Respondent.

Before:

Judge Fauver

These consolidated cases were brought under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seg.
The parties have moved for approval of a comprehensive
settlement disposing of all the issues in these cases.
The
settlement includes agreed civil penalties for specified citations
or orders and the withdrawal of others, and the withdrawal of the
corresponding actions for review of citations or orders.
I have reviewed the documentation submitted in support of the
motion and conclude that the motion is consistent with the criteria
for assessment of civil penalties in § llO(i) of the Act.

,ORDER

WHEREFORE IT IS ORDERED that:
1.
2.

shall

The motion for approval of settlement is GRANTED.
Within 30 days of the date of this Decision, Respondent
pay to the Secretary the approved civil penalties of

$22,732.00.

3. The approved settlement constitutes a final disposition of
all the cases, which upon payment of the above civil penalties are
DISMISSED
a

tU4f..,.,;.,
=r-6W~~
William Fauver
Administrative Law Judge

Dist:ributiong
Edward Ho Fitchu Esq.u Office of the Solicitor, U.S. Department of
Laboru 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Gayle M. Green, Esq.u Mark V. Swirsky, Esq., Nancy F. Koppelman,
H. P. Baker,
Esq., Myrna
Butkovitz, Esq., Office of the Solicitor, U.S. Department of Labor,
14480-Gateway Building, 3535 Market street, Philadelphia, PA 19104
(Certified Mail)

Esq. u Linda M. Henryu Esq. u Anita D. Eve Wright, Esq.,
Esq., Joseph To Crawford, Esq., Howard K. Agran,

2033

J. Michael Klutch, Esq., Polito and Smock, Suite 400, Four Gateway
center, Pittsburgh, PA 15222-1207 (Certified Mail)
Ronald B. Johnson, Esq., Volk, Frankovitch, Anetakis, Recht,
Robertson & Hellerstedt, 3000 Boury Center, Wheeling, WV 26003
(Certified Mail)
Robert H. Stropp, Esq., UMWA, 900 15th Street, NW, Washington, o.c.
20005 (Certified Mail)
Mr. Robert Jordan, Miner's Representative,
Saltsburg, PA 15681 (Certified Mail)
/fcca

2034

P.

o.

Box

181,

PBDBRAL JaRB 81\PBTY DD BBALTB RBVJ:BW COJDUSSJ:OJI
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.

J. BRADLEY MILLER,
Complainant

0
0

.

v.
WHITE'S PELLETIZING CO.,
Respondent

DISCRIMINATION PROCEEDING
Docket No. PENN 92-368-DM
NEMD 92-01

:

ORDER OF DISMISSAL
Appearance:

Madelyn P. Nix, Esq., Lancaster, PA,
for Respondent_._

Before:

Judge Fauver

This case was called for hearing at Lancaster, Pennsylvania,
on November 10, 1992, pursuant to notice of hearing. Counsel for
Respondent appeared, but Complainant did not appear for the
hearing.
Since the date of the hearing, Complainant has not
submitted any explanation for his failure to appear at the
scheduled hearing.
Accordingly, it is ORDERED that this case is DISMISSED for
failure of Complainant to prosecute his claim.

1rll

1
~~~ -r~Yl!iY\
William Fa~ver
I

")

Administrative Law Judge
Distribution~

Mr. J. Bradley Miller 0 5357 Lincoln Highway 0 Po Oo Box 106 0 Gap, VA
17527 (Certified Mail)

Mro Carl Do McKinney 0 Area Manageru Whitevs Palletizing Co. 0 Drawer
1300 0 St. Paul 0 VA

24283 (Certified Mail)

Madelyn P. Nix, Esq., Hartman, Underhill & Brubaker,
Chestnut Street, Lancaster, PA 17602 (Certified Mail)
/fcca

221 East

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

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

v.

JIM WALTER RESOURCES, INC.u
Respondent

.: CIVIL PENALTY PROCEEDINGS
:

Docket No. SE 92-226
A.C. No. 01-00758-03838
No. 3 Mine

:

Docket No. SE 92-227
A.C. No. 01-01247-03957

:

Docket No. SE 92-228
A.C. No. 01-01247-03958

:

Docket No. SE 92-230

~

. A.C. No. 01-01247-03959
: Docket No. SE 92-238
:

A.C. No. 01-01247-03962

.
.: No. 4 Mine
u

:
:

Docket No. SE 92-239
A.C. No. 01-01322-03837
Docket No. SE 92-250
AoCo NOo 01-01322-03839

Noo 5 Mine
0
0

:

Docket No. SE 92-219
A.C. No. 01-01401-03866
Docket No. SE 92-229
A.C. No. 01-01401-03871

0

0

:

Docket No. SE 92-241
A.Co No. 01-01401-03872

:

Docket No. SE 92-242
A.C. No. 01-01401-03873

g

.
0

:

Docket No. SE 92-243
A.C. No. 01-01401-03874

:

Docket No. SE 92-251

:

A.C. No. 01-01401-03875

~

2036

Docket No. SE 92-272
A.C. No. 01-01401-03878
Docket No. SE 92-278
A.C. No. 01-01401-03879
Docket No. SE 92-296
A.C. No. 01-01401-03883
Docket No. SE 92-300
A.C. No. 01-01401-03882
Docket No. SE 92-301
A.C. No. 01-01401-03884
Docket No. SE 92-342
A.C. No. 01-01401-03891
No. 7 Mine
DECISION
Appearances:

William Lawson, Esquire, Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
R. Stanley Morrow, Esq., Mining Division,
Jim Walter Resources, Inc., Brookwood, Alabama,
for Respondents

Before:

Judge Melick

These cases are before me upon petitions for assessment
of civil penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the "Act")o At hearingsr
Petitioner filed motions to approve settlement agreements
and to dismiss the caseso A reduction in total penalties
from $18,125 to $10,754, the vacation of Citation Nos. 3191450,
3191451, 3191544, 3191574, 2804674 and 3008118, and removal
of the "significant and substantial" designations for the
specified citations have been proposed" I have considered
the representations and documentation submitted in these
cases before and at hearings, and I conclude that the
proffered settlement is appropriate under the criteria
set forth in Section llO(i) of the Acto

20 37

WHEREFORE, the motion for approval of settlement
is GRANTED, including the Secretary's removal of her
11
significant and substantial" findings as requested, and
it is ORDERED that Respondent pay a penalty of $10,754
within 30 days of this order.

\

!. '

Gary M
Adminis
703-75?

Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department
of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL
35203 (Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc.,
P.O. Box 133, Brookwood, AL 35444 (Certified Mail)
/lh

2038

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

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

CIVIL PENALTY PROCEEDINGS
Docket No. SE 92-248
A.C. No. 01-00515-03822
Mary Lee No. 1 Mine

v.
DRUMMOND COMPANY, INC.,
Respondent

Docket No. SE 92-253
A.C. No. 01-00821-03720
Mary Lee No. 2 Mine
DECISION

Appearances:

William Lawson., Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for the Petitioner; J. Fred McDuff, Esq.,
Drununond Company, Birmingham, Alabama, for
Respondent in Docket No. SE 92-248; and
David M. Smith, Esq., Maynard, Cooper, Frierson
and Gale, Birmingham, Alabama, for Respondent
in Docket No. SE 92-253

Before:

Judge Melick

These consolidated proceedings are before me upon the
petitions for civil penalties filed by the Secretary of
Labor pursuant to Section 105(d) of the Federal Mine Safety
and Health Act of 1977v 30 UoSoCo Section 801P et seqop the
99
Act 11 charging Drununond Company u Inc o ( Drununond) with
violations of mandatory standardso
Docket No. SE 92-253
At hearings Drununond admitted the violation charged in
the one citation at issuer Citation No. 2805497u and conceded
the inspector's findings relating to the violation. Drununond
thereafter challenged only Section 104(b) Withdrawal Order
Noo 30087~1? issued for an alleged failure to abate that
citationo
At the conclusion of the Secretary's case-in-chief,
1

Section 104(b) provides as follows:

If, upon any follow-up inspection of a coal
or other mine, an authorized representative of the
Secretary finds (1) that a violation described in a
citation issued pursuant to subsection (a) has not
been totally abated within the period of time as

2039

Drummond moved for a directed verdict arguing that based on
the Secretary's case alone, it was clear that the violation
charged was fully abated at the time the Section 104(b) order
was issued and that the Secretary was without authority under
that section to require it to take the additional specified
action beyond what was necessary to remedy and correct the
violative condition cited. In a bench decision, the motion
was granted. That decision is set forth below with only nonsubstantive correction.
The motion for directed verdict is granted. The
admitted citation underlying the Section 104(b) order
in this case provides as follows:
The operator's approved ventilation
system, methane and dust and control plan,
was not being followed in the 40 north
section in that the following conditions
were observed in the three right entry
face where the continuous miner was cutting
coal; One, they had_ taken a 40 foot cut out
of the left side of the face prior to
cutting the right side. Two, this was the
first cut inby the crosscut, and the line
curtain was 25 feet back from the last row
of roof bolts. Three, there was seven feet
of the wing dropout by the crosscut had
been rolled up, therefore short circuiting
the air. Four, there was only 145 feet
per minuit [sic] at the end of the line
curtain. The foreman stated he took a
reading 'and had 245 feet per minuit [sic].
There were no notes to support this reading.

originally fixed therein or as subsequently extended,
and (2) that the period of time for the abatement
should not be further extended, he shall determine
the extent of the area affected by the violations,
and shall promptly issue an order requiring the
operator of such mine or his agent to immediately
cause all persons, except those persons referred to
in subsection (c), to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such
violation has been abated.

2040

The Secretary acknowledges that immediately
upon the issuance of the citation the first three
of the cited conditions were abated and that, therefore, they are not at issue. It is alleged by the
Secretary that only the fourth condition was not
abated when the order was issued on July 30, 1991,
and was not abated until sometime later when the
operator met certain additional criteria required
by the Secretary.
The order reads as follows:
The four of the five places examined
did not have the required amount of air
to cut 40 foot cuts. The two shifts prior
cut 40 foot cuts. The day shift cut four
places 40 feet, and the evening shift cut
two places 40 feet. Therefore, it is
determined that the required air quantity
and velocity is not being maintained so as
to cut 40 foot cuts,pontinuously which is
the operator's mining plan. Therefore, the
time of abatement cannot be extended.
Nowhere does the order charge, nor is it
alleged, that the specific conditions set forth
in the underlying citation, and which caused the
violation in that citation, continued to exist
once the inspector issued that citation. Three
of the four conditions were immediately abated,
mining was halted in the cited entry, and there
is no evidence of any additional mining in the
cited entry that was not in full compliance with
the ventilation plan. For that matter there are
no allegations nor any evidence that any c~ts were
thereafter taken in violation of the plan.
More particularly, Section 104(b) of the Act
provides, in part, that 'if upon any follow-up
inspection of a coal or other mine an authorized
representative of the Secretary finds one, that a

2

The ventilation plan permitted the operator to
take 20 foot cuts with only 200 linear feet of air per minute
at the end of the line curtain and 40 foot cuts with 300 linear
feet of air per minute at the end of the line curtain. The
operator is in no way required by the plan to take 40 foot
cuts even if it meets the higher ventilation requirements.

2041

violation described in a citation issued pursuant
to Subsection (a) has not been totally abated
within the period of time as originally fixed
therein or as subsequently extended •.. '
That is as far into Section 104(b) as I need
to go in this case. I find that on the facts of
this case and considering the ventilation plan
in effect that, at the time the citation was
written, the violation that was specifically
charged was, indeed, abated in that the violative
conditions in the citation no longer existed.
Since mining in the cited 40 foot cut was halted
upon the issuance of the citation, and no mining
was resumed in violation of the ventilation plan,
the citation was clearly abated at that time.
There was nothing more for the mine operator then
to do to be in full compliance with its ventilation
plan and so long as the operator did not violate
the ventilation plan thereafter, it could not be
deemed to have failed to.abate the violation. 3
Under the circumstances, I am going to grant
the motion and dismiss the Section l04(b) order
that is before me.
Docket No. SE 92-248
In a motion for settlement considered at hearing in
this case, Petitioner proposed a reduction in penalty from
$1,000 to $750 for the one order at issue, Order No. 2806102.
I have considered the representations and documentation
submitted in the case and conclude that the proffered
settlement is appropriate under the criteria set forth in
Section llO(i) of the Act" An appropriate order directing
payment of the proposed penalty will be incorporated in the
following Order.

3

The Secretary is without authority under Section
104(b) to compel performance of additional mining activities
or create new requirements beyond what is necessary to abate
the precise violation charged. In order to fully abate the
citationp the inspector apparently wanted the operator to
take 40 foot cuts in his presence with 300 linear feet of air
per minute at the end of the line curtain. However, nothing
in the ventilation plan requires the operator to take such
40 foot cuts and it may continue to legally take 20 foot cuts
with lesser ventilation.

2042

ORDER
Docket No. SE 92-248
Order No. 2806102 is affirmed and Drununond Company, Inc.
is hereby directed to pay civil penalties of $750 for the
violation charged therein within 40 days of the date of this
decision.
Docket No. SE 92-253
Citation No. 2805497 is affirmed and Drununond Company,
Inc. is directed to pay civil penalties of $910.00 for the
violation charged therein within 40 days of the dat of this
decision. Section 104(b) Order
3008781 is vaca ed.

NL

lJ1~
Law

udge

i

j

Distribution:

William Lawson, Esq., Office of the ~olicitor, U.S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail)
J, Fred McDuff, Esq., P.O. Box 10246, Birmingham, AL 35202

Certified Mail)
David Mo Smithp Esq., Maynard, Cooperp Frierson and Gale?
2400 Amsouth/Harbert Plaza, 1901 Sixth Avenue North, Birmingham,
AL 35203 (Certified Mail)

I

2043

'

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

nc
v./ ,,
I''.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
Ralph J. Thorn,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 92-1010-D
MORG CD 92-03
Dobbin Mine

ISLAND CREEK COAL COMPANY,
Respondent
ORDER APPROVING SETTLEMENT AND DISMISSING CASE

Before:

Judge Barbour

This proceeding concerns a complaint of discrimination filed
by the Secretary of Labor ("Secretary") on behalf Ralph J. Thorn,
Complainant, against Island Creek Coal Co. ("Island Creek")
pursuant to Section 105 of the Federal Mine Safety and Health Act
of 1977 (the "Mine Act"), 30 u.s.c. § 815(c). The complaint
alleges that the Complainant was illegally discriminated against
on February 5, 1992, when a written warning was unlawfully placed
in his personnel employment file. Island Creek filed a timely
answer denying that it had violated Complainant's Section 105(c)
rights and the parties engaged in pre-trial discovery. Following
the scheduling of this matter for hearing, counsels for the
parties settled the caseu and counsel for the Secretary has
submitted a motion to approve the settlement. The motion is
signed by counsels and the Complainant and sets forth the parties
agreements with respect to resolving the matter. In particularu
it states~
1.
That Island Creek agrees to clear Complainant's
employment record of all references pertaining to any incidents
occurring from February 4 through February 14u 1992, at
the Dobbin Mine; that Island Creek specifically agrees to
immediately expunge the disciplinary warnings which were dated
February 5f 1992 by Michael Nestor and February 14u 1992 by
Richard Perandou and any references to such warnings, from any
and all personnel files, payroll files, mine files, supervisors 9
notes, microfilm/microfiche files, and any other records
maintained by Island Creek, Island Creek Corporation, or by any
of their agents; and that Island Creek further agrees to mail the
original copies of the warnings to the Secretary within ten (10)
days of the issuance of the Order approving settlement.

2044

2.
That Island Creek agrees that it shall not assert, rely
upon, or otherwise consider the disciplinary actions taken in
February 1992 in any future disciplinary action, personnel
decision, or other action involving the Complainant.
3.
That Island Creek asserts that it is complying and will
continue to comply with Section 105(c) of the Mine Act, agrees
that it will not discharge or in any other manner discriminate
against or otherwise interfere with the exercise of the statutory
rights of any miner, representative of miners, or applicant for
employment in any coal or other mine subject to the Mine Act
because such miner, representative of miners, or applicant for
employment had filed or made a complaint under or related to the
Mine Act, including a complaint notifying the Respondent, the
Respondent's agent, of an alleged danger, or safety or health
violation in a coal or other mine, or because such miner,
representative of miners, or applicant for employment is the
subject of medical evaluations and potential transfer under a
standard published pursuant to Section 101 of the Mine Act, or
because such miner, representative of miners, or applicant for
employment has instituted or caused to be instituted any
proceeding under or related tothe Mine Act or has testified or
is about to testify in any such proceeding, or because of the
exercise by such miner, representative of miner, or applicant for
employment on behalf of himself or others of any statutory right
afforded by the Mine Act.
4.
That Island Creek agrees to pay a civil penalty of one
thousand ($1,000) within thirty (30) days of the issuance of the
Order approving settlement.
5.
That Island Creek agrees to post a copy of the Motion
To Approve Settlement and this Order approving settlement at the
Dobbin Mine for a period of not less than thirty (30) days.
That the parties agree the settlement agreement shall
be offered or used
any other purpose whatsoever 1 except
for Mine Act proceedings.
7o
That except for amounts already received by Complainant
and the reinstatement of personal leave to the Complainant 1 the
parties agree to bear their own costs.

I conclude that the settlement, which compromises and
settles this matter amicablyp is in the public interest and
should be approved.
ORDER

Accordingly, Island Creek is ORDERED to comply with
provisions 1, 2, 3, 4, and 5 of the Agreement as stated above,
and Island Creek, the Secretary and the Complainant are ORDERED

2045

to comply with provisions 6 and 7 of the Agreement, as stated
above. Island Creek shall mail to the Secretary the original
warnings dated February 5 and February 14, 1992 within ten (10)
days of the date of this Order and a civil penalty of ($1,000)
within thirty (30) days of the date of this Order. Upon receipt
of the warnings and of payment, this proceeding is DISMISSED.
Counsels are commended and thanked for the diligent and
responsible manner in which they have represented their
respective clients during the course of this proceeding and in
which they have kept me advised of the ongoing status of this
case.

Yw~·o1 ;(c.!J~

David F. Barbour
~
Administrative Law Judge
(703) 756-5232

Distribution:
Heather Bupp-Hubuda, Esq., Office of the Solicitor, U.S.
Department of Labor, 3535 Market Street, Philadelphia, PA
(Certified Mail)
Keith Fischler, Industrial Relations Counsel, Island Creek
Corporation, 250 w. Main Street, Lexington, KY 40575-1430
(Certified Mail)
Mr. Ralph J. Thorn, Berry Street, P.O. Box 294,
Tunnelton, WV 26444 (Certified Mail)
/epy

2046

19104

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

i t'·. ,.
d

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

v.

'.

CIVIL PENALTY PROCEEDING
Docket No. SE 92-84-M
A.C. No. 09-00265-05514
Junction City Mine

BROWN BROTHERS SAND CO.,
Respondent
DECISION
Appearances:

Before:

Michael K. Ha~in, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, for
Petitioner;
Mr. Carl Brown, Brown Brothers Sand co., Howard,
Georgia, for Respondent.

Judge Barbour
STATEMENT OF THE CASE

This civil penalty proceeding was initiated by the Secretary
of Labor ("Secretary") against Brown Brothers Sand Company
( u1 Brown Brothers") pursuant to Sections 105 and 110 of the
Federal II/line Safety and Health Act of 1977 ("the Mine Act") u
30 UoSoCo § 815 and 8200
The issues are whether Brown Brothers
violated two mandatory safety standards for surf ace metal and
non-metal mines and, if so, the amount of the civil penalty to be
assessed for each violation. The case was heard in Macon,
Georgiao
STIPULATIONS
At the commencement of the hearing the parties stipulated as
follows~

lo

Brown Brothers is subject to the Act and
to the Commission 1 s jurisdictiono

2.

Brown Brothers is a small operator
employing nine to ten persons.

2047

3.

The payment of the proposed civil
penalty assessments will not adversely
affect Brown Brother's ability to
continue in business. 1

4.

During the two year period prior to the
date of the first alleged violation at
issue, records of the Mine Safety and
Health Administration ("MSHA") indicate
that Brown Brothers has an history of
five prior violations of the mandatory
standards.

5.

Brown Brothers exhibited good faith in
abating both of the alleged violations
in a timely fashion.

see Tr. 3-4.
DISCUSSION
Mine Act
section

Citation No.

Date

30 C.F.R.

3601603

09/04/91

56.14130(i)

Section 104(a) 2

Citation No. 3601603 alleges that Brown Brothers failed to
adequately maintain a seat belt on a self-propelled mobile
equipment vehicle and that the violation was not a significant
and substantial contribution to a mine safety hazard. The
citation states in pertinent part:
The seatbelt is broken on the John Deere
dozer.
o

The Secretary presented her case through the testimony of
MSHA Inspector Darrell Brennan. He confirmed that on
September 4 1 1991, while conducting an inspection of Brown
Brothersusand operation 0 he examined a John Deere bulldozer.
Brennan testified that a bolt fastening the seat belt to the
frame of the bulldozer was broken, making the seat belt

1

The Secretary proposed a civil penalty of $20 for each alleged
violation.
2

30 u.s.c. § 814(a).

2048

inoperable. Tr. 20. Because Section 56.14130(i) requires that
the seat belts on such equipment be properly maintained, he
issued the citation. 3 Id.
Brennan stated that the bulldozer had been brought out of
the pit and was being used on level terrain. Therefore, he
considered it unlikely that an accident would occur and an injury
would result because of the violation. Tr. 20-21. He also
believed Brown Brothers was negligent in allowing the violation
to exist, but the degree of negligence was not high because mine
personnel had not reported the condition of the seat belt to mine
management. Id.
Brown Brothers, through the statement of its representative
Carl Brown, pointed out a recent instance at the mine in which a
bull dozer had overturned and the bull dozer operator would have
been severely injured, perhaps fatally, had he been wearing a
seat belt and been trapped in the equipment. Tr. 24-26.
CONCLUSIONS

There is really no dispute about the existence of the
violation. The defecting bolt made the seat belt unusable.
Thus, the seat belt was not maintained in functional condition,
and I so find. I further conclude that Brown Brothers was
negligent in failing to properly maintain the seat belt. It is
the operator 1 s duty to ensure that equipment at its mine is
properly maintained. To effectively carry out that duty, an
operator must make certain equipment defects are promptly
observed and reported. Here, Brown Brothers failed to meet the
mandated standard of care required of an operator.
I also conclude that the violation was not serious. As the
inspector rightly noted, the fact that the bull dozer was being
operated on level ground made the chance of an injury causing
accident extremely
ikelyu and there was no testimony offered
that the bull dozer was scheduled to be taken back to the pit or
to be used on more hazardous ground. 4

3

30 C.F.R. § 56.14130(i) states:

Seat belt maintenance. Seat belts shall be maintained in functional
condition, and replaced when necessary to assure proper performance.
4However,

l would be remiss if I did not comment on Brown Brothers'
apparent argument that use of a seatbelt can, in and of itself, be more
hazardous than non-use. Undoubtedly there are instances where such is the
case, perhaps even in the episode discussed by Mr. Brown, but common sense and
experience dictates that in the vast majority of instances properly maintained
and used seat belts save, not cost lives. Examples of equipment operators who
were maimed or crushed while not wearing seat belts or while wearing seat
(continued ... )

2049

CIVIL PENALTY
The Secretary proposed a civil penalty of $20 (Tr. 18),
which I find appropriate in view of Brown Brother's negligence,
the non-serious nature of the particular violation, and Brown
Brother's stipulated small history of previous violations, its
small size, its good faith abatement of the violation and the
lack of effect of the penalty on Brown Brother's ability to
continue in business.
Mine Act
Section
Section 104(a)

Citation No.
3601604

Date
09/11/91

30 C.F.R.

56.14107(a)

citation No. 3601604 alleges that Brown Brothers failed to guard
a coupling on a water gun pump motor and that the violation was
not a significant and substantial contribution to a mine safety
hazard. The citation states:
The water gun pump motor drive coupling is
not provided with a guard.
Exh. P-3
Inspector Brennan again testified for the Secretary. He
stated that during the course of the September 11 inspection he
observed that the coupling connecting the drive shaft of the
water gun pump to the water gun was not guarded. Tr. 16. The
pump provides the pressurized water that is "shot" from the water
gun in order to wash down sand during the mining process.
The
inspector testified that the coupling was turning fast (at an
estimated 1,800 RPM) and that miners could have been caught in
the unguarded part. Tr. 10. He believed that if a miner's
clothing had become entangled in the coupling, the miner could
have been pulled into the rotating machinery and could have
endured lost workdays or restricted duty on account of injur
resulting from the accident. Tr. 9, 13-14.
In his opinion 1 the
coupling was a moving machine part that pursuant to Section
56.14107(a) should have been guarded. 5

( ... continued)
belts that failed thorough the lack of proper maintenance were obviously too
numerous for the
to ignore when promulgation regulations governing
the use of self-propelled mobile equipment at surface metal and non-metal
mines, and the rare exception but proves the rule.
5

30 C.F.R. § 56.14107(a) states:

Moving machine parts shall be guarded to protect persons from contacting
gears, sprockets, chains, drive, head, tail, and takeup pulleys, fly wheels,
couplings, shafts, fan blades, and similar moving machine parts that can cause
injury.

2050

The inspector also believed Brown Brothers was negligent in
allowing the violation to occur. The inspector stated he had
been told by management personnel that the rapidly rotating
coupling had been guarded previously by a protective "house"
enclosing the pump motor and the coupling. However, when Brown
Brothers replaced the pump motor with a larger unit, the house
was not enlarged proportionally and the coupling was "pushed"
outside the house. Id.
Inspector Brennan stated that it was unlikely any miners
would be injured due to the violation because there was very
little exposure of miners to the pump motor. Tr. 9. He observed
that the motor was located away from where miners usually worked
and that the only time a miner would have been in its immediate
vicinity was to start it up or to service it. Inspector Brennan
believed that one miner probably came once a day to service the
pump, and Carl Brown agreed this was correct. Tr. 18.
CONCLUSIONS
The standard's requirements are clear. As Commission
Administrative Law Judge George Koutras has aptly stated, "The
. • • language found in [Section] 56.14107(a) specifically and
unequivocally requires guarding of any of the enumerated moving
machine parts, as well as any similar moving part that can cause
injury if contacted. The obvious intent of the standard is to
prevent contact with a moving part." Highland County Board of
commissioner, 14 FMSHRC 270, 291 (February 1992) (quoted with
approval overland Sand & Gravel Co., 14 FMSHRC 1337, 1341 (August
1992) {ALJ Barbour)). Here, there is no doubt but that the cited
moving coupling was not guarded, and I accept the inspector's
testimony that a miner's clothing could have become entangled in
the turning part causing injury to the miner. Therefore, I find
that the violation existed as alleged.
In addition, I agree with the inspector that there was very
little exposure of miners to the hazard posed by the violation
and that this was not a serious violation. I also agree with his
opinion and I find that Brown Brothers negligently failed to make
sure that the coupling continued to be guarded when it installed
the new pump motoro I infer from the presence of the previous
guard t.hat Brown Brothers was well aware of what the standard
requiredo
CIVIL PENALTY
The Secretary proposed a $20 civil penalty 1 which I
Iind appropriate in view of Brown Brother 9 s negligence, the

non-serious nature of the violation, Brown Brother's stipulated
small history of previous violations, its small size, its good
faith abatement of the violation and the lack of effect of the
penalty on Brown Brother's ability to continue in business.

2051

ORDER

In light of the foregoing findings and conclusions, Brown
Brother's is ordered to pay a civil penalty of $20 for the
violation of Section 56. 14130(i) cited in Citation
No. 3601603 and a civil penalty of $20 for the violation of
Section 56.14107(a) cited in Citation No. 3610604. Brown
Brothers shall pay the civil penalties within thirty (30) days of
the date of this Decision, and, upon receipt of payment, this
matter is DISMISSED.

J)w ;dfj)~v----oavid F. Barbour
Administrative Law Judge
(703) 756-5232

Distribution:
Michael Hagan, Esq., Office of the Solicitor, U.S. Department of
Labor, 1371 Peachtree Streetr N.E., Room 339, Atlanta, GA 30367
(Certified Mail)
Mr. Carl Brown, Brown Brothers Sand Company, P.O. Box 22,
Howard GA 31039 (Certified Mail)
/epy

2052

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

. c -,
0
L ·.

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 92-124-M
A.C. No. 05-04055-05507

v.
Hopemore Shaft
LEADVILLE MINING & MILLING
CORPORATION,
Respondent
DECISION

Appearances:

Tambra Leonard, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
George E. Reeves, Esq., Denver, Colorado,
for Respondent.

Before:

Judge Lasher

In this matterp MSHA, proceeding pursuant to Section llO(a)
of the Federal Mine Safety and Health Act of 1977u 30 u.s.c.
§ 820{a)
seeks assessment
a civil penalty for an alleged
violation of 30 C.F.R. § 57.11050(a) pertaining to escapeways in
underground mines. This standard provides:
Every mine shall have two or more separate,
properly maintained escapeways to the surface
from the lowest levels which are so positioned that damage to one shall not lessen
the effectiveness of the others. A method of
refuge shall be provided while a second opening to the surface is being developed. A
second escapeway is recommended, but not required, during the exploration or development
of an ore body.

2053

contentions of the Parties
Respondent (herein "LMMC") contends that it was engaged in
exploration or development of the ore body and thus was not
"required" to have a second escapeway, although such is "recommended" by the regulation.
Petitioner (herein "MSHA") contends that LMMC was not engaged in exploration or development but rather was engaged in
actual mining operations. MSHA also contends that the alleged
violation was "Significant and Substantial."

Findings
The Section 104{a) Citation in question (No. 3633365) was
issued by MSHA Inspector Ronald L. Beason on July 3, 1990, during
a regular inspection, and described the alleged violation as
follows: ·
A separate escapeway to the surface was not
provided at the mine. A method of refuge was
provided; but, development towards a second
escapeway was not being conducted at the time
of this inspection. The employees were working on the 740 West Vent drift. Blasted a
slab round in the 640 Zinc Stope.
1990.
In 1989 Mining was conducted on the 500 and
700 level.
In 1988 Drifting 700 level.
An active development program must be established to comply with the standards and provide a second escape to the surfaceo

(EXo R-4) o
Although the allegedly violative condition was never actually abatedv MSHA does not contend that LMMC did not proceed in
good faith to achieve abatemento The mine was closed in November
19900
The parties have stipulated (Court Exo 1; To 36-37) that the
mine did not, on July 3, 1990, have two or more separate escapeways to the surface. The record is clear that the mine did have
one escapeway--the Hopemore Shaft itself, and that a method of
refuge was provided on the inspection day (To 95). The second
escapeway, contemplated by Respondent, was called the Hunter
Shaft.
(T. 94-95).

2054

During his inspection of the Hopemore Shaft (an underground
gold and base metals mine (T. 60, 68-69)] on July 3, Inspector
Beason was accompanied underground by lead miner Robert Calder
and by Oliver Jeter on the surface. The mine (Hopemore Shaft)
had been in existence since 1985 (T. 44; Ex. 6-7). Two miners
were working underground on the day of the inspection.
(T. 59,
60, 72).
After Inspector Beason entered the mine, he rode the "skip"
to the 700 level, and then went to the 740 "raise" and on to what
is called the "640 stope" (T. 26-28, 35-36). He said a "stope"
is not development work.
(T. 42, 43, 49; Ex. G-2}. He testified
he saw men working, but not on the second escapeway:
I seen [sic] that they were working in the
500 1 and 700 levels and he 600 level.
I
observed that they were working in the 640
zinc stope while I was there and the 740 west
drift.
I did not observe any work towards a
second escape. I didn't see in the previous
reports and the previous citations issued for
radon that they were in the 500 level working
toward a second escape.
(T. 36).
I conclude from the entire record on this point that while
miners previously may have done some work in the 500 level, they
had not been engaged in developing a second escapeway for at
least a year (T. 37-39, 65).
The mine layout is shown in Exhibit R-1.
The Hopemore Shaft
(a vertical shaft) is shown thereon as a rectangle on the edge of
square 4270 The Hopemore Shaft is intersected by four different
horizontal tunnels called the 5 level, 6 level? 7 level, and 8
level, and such are indicated respectively on R-1 by the colors
yellow, green, brown, and red.
The Inspector 1 s testimony relating to whether LMMC was engaged
production (mining) was first stated in the form that it
was his u'understandingg' (T. 71) that such was the case:

The Inspector said that, to "gain access" to a second escape, the
work would have to be performed from the 500 level, and that "they were not
working on the 500 level" (T. 36), contradicting what he said in the testimony
quoted above. He said, in further explanation, that work would have to be done
on the 500 level to be "toward tbe Hunter shaft" ( T. 37, 42) which he was told was
developed down 24 feet from the surface (T. 37) but was unable to confirm since
it was timbered over (T. 38).
This contemplated second escapeway, the Hunter
Shaft, would have been 500 feet top to bottom, i.e., from the surface to the 500
level (T. 63-64).

2055

A.

The 740 raise, they had completed that. And
from my discussion with them, I determined
that they had made a slab round and was in
the process of using a slusher to move that
down the stope, or down the raise into the
skip.

Q.

So where was this slab round?

A.

In the 640 stope.

Q.

And could you describe what a slab round is
and what its significance is, if it has any?

A.

Normally when you drive a drift, you drive it
through an ore-bearing area or waste rock,
that type of thing. If there's some ore or
'something where you want to widen it or something like that, you drill into the side of
your drift and blast that off. And that's a
slab.

Q.

Did this seem like an occasion where they
wanted to widen it?
Did it seem like they
were blasting for the ore?

A.

It was my understanding that they were blasting
for the ore, the skip--the car at the bottom of
the 740 raise, we discussed that and how he moved
the car of ore out to the shaft. And he told me
he had to do it by hand. And we discussed that
some.
So it was my understanding that they were
blasting or putting it in the raisep and he
was pushing this car to the shaft and hoisting it to the surface.
(T. 27-28).

The Inspector said that "When they leave the levels and
start pulling ore out of the shaft in the 640 stope, they were
u1 mining. ui
(T. 43) . He said he was told that ore had been hauled
up with the skip out of the shaft and taken to the mill where it
was stored in stockpiles (T. 45, 79, 99, 102).
He did not see
the stockpile. There were three such stockpiles (T. 162). Moreover, Donald Wilson, the President of LMMC, confirmed that there
were stockpiles of gold ore which would have been salable after
milling and that there were approximately 15 to 20 tons of such
ore in the stockpiles.
{T. 137-138, 193, 222-223, 224}.

2056

Inspector Beason said that the way LMMC was interpreting the
regulation, "you'd have the mine mined out or have a cave-in
before you ever got a second escapeway in."
(T. 101-102) 2
Inspector Beason said development and exploration are the
same thing:
What you do is you drive a drift in a specific part of the mine to determine the ore
value. You long-hole it to determine how
much you may have in that mine. And that's
development and exploration.
(T. 46).
In determining whether exploration or development was being
conducted, Inspector Beason relied (T. 47) on MSHA's Program
Policy Manual, Subpart J, pertaining to "Escapeways" (Ex. G-3)
which provides, inter alia:
This standard requi~es two. or more separate
escapeways to the surf ace for every underground mine. However, a second escapeway is
recommended, but not required, during the
exploration or development of an ore body.
In this connection 1 "exploration or development of an ore body" should be used in its
narrowest sense, i.e., while an ore body is
being initially developed, or development or
exploration work is being conducted as an
extension of a currently producing mine.
Where mining occurs along a mineralized zone
and production and development are indistinguishable as separate activities, the standard
,shall be applied as it would to a producing

mineo
Inspector Beason inspected the mine's ventilation plan (Ex.
G-6) and ·determined that LMMC was not ventilating the 500 level
and therefore could not have been working on the 500 level"
(T.
54)
He also reviewed the locations where the last inspector had
taken radon samples and noticed that no samples had been taken on
the 500 level where the second escapeway would come down to (T.
36) and concluded that work was not being performed on that level
o

2

LMMC contends that the regulation does not require a second escape
to be developed at all during the exploration or development of an ore body
(Brief, pg. 17). But see T. 73, 74, 79, 84, 99, 102, 107-109, 137-140, 156, 162,
168-169, 193, 222-224, indicating that mining (extracting ore) was being
conducted.

2057

because federal mining inspectors are required to take radon samples in all areas men are working.
(T. 36). Inspector Beason
reasonably concluded from so-called "contract" information (T.
37; Ex. G-2) and observations at the mine on inspection day that
work had not been performed on the second escapeway for at least
one year.
(T. 37-38, 39).
on cross-examination, Inspector Beason pointed out the significance of determining where the miners had been working.
{T. 73-74). He stated:
The work in the 500 drift toward the Hunter
shaft would be to establish a second escape.
Any work off of the main levels, such as the
stopes, the raises, where you're into mineralized areas or working in those areas is
mining.
(T. 7 4) .
There is no question but that ore was extracted from the
mine and placed in stockpiles· near the mill (T. 27-28, 45, 71-72,
79, 99, 107-108, 137-140, 141, 193, 222-224), that the concentrate therefrom could be sold after milling (T. 141, 192-193,
222, 223), and that the President of LMMC intended to sell it
ultimately (T. 141, 192-194, 220-224).
The ore and other material removed from the mine was dumped
on the ground and separated after a distinction was made whether
it was "waste" rock or was mineralized (T. 107, 155-156, 161,
164, 214-215).
None of the material put in the stockpiles has
ever been milled by LMMC (T. 164) other than for test runs of
approximately 10 tons (T. 168-169).
Insoector Beason identified the hazard involved as

follows~

... if there's one escape, you only have one
way out if you have a cave-in in any of your
drifts, that prevents you from going out, or
you lose your shaft 1 or if your skip gets
'hung up
there and drops 1 that type of
thing, in the shaft. Or fire can occur in
the shaft. Those types of things can create
real hazards to the miners underground.
(T.

59).

The Inspector felt that this exposure to miners had endured
from 1988 to 1990 (T. 61) and that if one of the contemplated
events occurred and the main shaft was blocked, and fire occurred, then fatal injuries could occur (T. 63). He acknowl-

2058

edged that the existence of a refuge chamber could lessen the
likelihood of a fatality (T. 63, 95).
Inspector Beason concluded that LMMC was moderately negligent on the basis of this rationale:
Well, at previous times they had done some
work in the 500 level. You see, on the contract report, I show that they had been in
the 500 level, 527 level at one month--I
think it was two months that they were there.
So they were throughout that period of time
in the 500 level.
I'm assuming that the only
reason they were doing that is to make their
second escape.
Then they had done the head frame and they
claimed to be down 24 feet there, and they
put the head frame in at that point.
So, in
that respect, they have mitigating circumstances that they have done some work, so I
determined it to be moderately negligent.
(T.

65).

LMMC established, contrary to Inspector Beason's assertion
that blasting slab rounds in the stope constitutes "pulling ore
out," that:
1.

The mere fact that such occurs in a stope
does not necessarily mean that production
(mining) is ongoing (T. 42, 78-79).

2.

The mere fact that LMMC was
the stope and
blasting a slab round does not establish that
LMMC was pulling out ore,

i.e., extracting

mineral (T. 85).

3.

That the slab round which Inspector Beason
thought was blasted on July 2, 1990 (the day
before the inspection) in the 640 stope, was
actually blasted on the 5 level drift (T. 27
7lp 85; 154; Exs. R-2 and R-6; See LMMC's
Briefp pp. 5-7u 15).

4.

That the purpose of blasting the slab round
in question, as stated by Mr. Calder, the
miner who performed the task, was to turn a
drift, which he explained as follows:

2059

I had to go at an angle with the
drift so it enabled me to have more
time to turn around to put a car in
mud, car and track."
(T. 154).
5.

That the mere existence of the muck chute
does not warrant the inference that such was
being used by LMMC for removal of ore (T. 57,
58,

72, 79).

DISCUSSION
Ao

occurrence

This matter calls for interpretation of the standard.
construe the cited regulation, and conclude therefrom, as
follows:

I

The first of the three sentences requires, without qualification, that every "mine" have two escapeways. Reference to the
Act itself reveals that a "coal or other mine'' is"··· an area of
land from which minerals are extracted •.•• " Thus, it would
seem that if minerals are being extracted, for whatever reason,
from an area of land, as here (T. 222-224), then the operation is
a mine and the first sentence of the regulation applies so as to
require two escapeways.
The second sentence of the regulation, requiring a "method
of refuge while a second opening to the surface is being developed" was being complied with on the day the citation was issued.
Respondent had put in such method of refuge (T. 95, 207).
The third sentence states that a second escapeway is recommended but not required during the exploration or development of
·the ore bodyo I construe this third sentence to be an exception
·to the requirement of the first sentence and concur with MSHAvs
position (stated in its Program Policy Manual) that the exception
should be construed narrowly. 3 So read, the regulation requires
that when mining, extracting mineral, is ongoing, two escapeways

3

The Mine Act and the standards promulgated thereunder are to be interpreted to ensure, insofar as possible, safe and healthful working conditions
for miners. Westmoreland Coal Co. v. FMSHRC, 606 F.2d 417, 419-420; (4th Cir.
1979). The conclusion reached here would prevent a mine operator from extracting
ore and conducting mining under the guise of development by rejecting an "eitheror" analytical approach and recognizing that development (or exploration) work
and mining can be carried on simultaneously.

2060

are required. 4 Carrying this construction to finality, I conclude:
(1) If such mining is incidental, in combination with, or
part of exploration or development, it nevertheless is mining;
(2) As mining, it is covered by the general rule of the regulation requiring two escapeways;
(3) LMMC was required by the
regulation to first install the second escapeway before engaging
in other exploration or development work in which minerals were
extracted;
(4) If mineral extraction occurs as a direct result
of the work involved in developing the second escapeway, no violation occurs;
(5) If mineral extraction occurs as a result of
work performed in other development not related to installation
of the second escapeway, a violation does occur; and (6) If
exploration or development work not related to installation of
the second escapeway does not entail extraction of minerals, no
violation is committed.
In this matter, LMMC was engaged in development work which
did involve extraction of mineral and was not part of the work
necessary to install the second escapeway. While such was development work, it also was mining (production). As mining, it
was covered by the regulation-and two escapeways were required to
have been in place before such work was commenced.
Accordingly, it is concluded that a violation did occur.

B.

Significant and Substantial

LMMC's position that this violation was not "Significant and
Substantial" is found meritorious and is here adopted.
A violation is properly designated "Significant and Substantial vrr
based on the particular facts surrounding that viola0
tion, 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., 3 FMSHRC 822, 825
(April 1981). In Mathies Coal co., 6 FMSHRC 1, 3-4 (January
1984), the Commission explained~

4

At page 9 of its Brief, LMMC argues " ... the mere fact that the material excavated in a particular operation is ore or mineralized rock does not
prevent that operation from being exploration or development. " When such ore or
mineralized rock is extracted and stockpiled for future sale, is this not
"mining" also? Is the regulation to be construed narrowly in a manner adverse
to safety, or broadly to cover its obvious intent to require two escapeways when
mining is going on?

2061

In order to establish that a violation of a
.mandatory safety standard is significant and
substantial under National Gypsum the Secretary of Labor must prove:
(1) the underlying
violation of a mandatory safety standard; (2)
a discrete safety hazard--that is, a measure
of anger to safety--contributed to by the
violation; (3) a reasonable likelihood that
the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.
Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 (5th
Cir. 1988).
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,
and that the likelihood of injury must be evaluated in terms of
continued normal mining operations. U.S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984). See also Monterey Coal Co., 7
FMSHRC 99~, 1001-1002 (July 1985). The operative time frame for
determining if a reasonable likelihood of injury exists includes
both the time that a violative condition existed prior to the
citation and the time that it would have existed if normal mining
operations had continued. Halfway, Inc., 8 FMSHRC 8, 12 (January
1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).
The question of whether any particular violation is significant
and substantial must be based on the particular facts surrounding
the violation, including the nature of the mine involved.
Texasgulf, Inc., 10 FMSHRC 498p 500-501 (April 1988); Youghiogheny and
Ohio Coal Company, 9 FMSHRC 2007v 2011-2012 (December 1987).
It
is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984).
During Inspector Beason's direct testimony regarding whether
the alleged violation was ~significant and Substantial " he testified in broad general terms regarding cave-ins, firev and collapse of the shaft (T. 59) and then concluded that these events
were 90 reasonable and likely, vv based on his experience in other
mines (T. 62). His testimony on both direct and cross-examination is devoid of any mention of the particular facts surrounding the violation (Cement Division, National Gypsum Company, 3
FMSHRC 822 (April 1981) which would support his conclusion.
Even
from the record as a whole (including MSHA's evidence) it must be
concluded that Petitioner established only a possibility (T. 6263, 91) that the hazard contributed to by the violation would
come to f-ruition so as to result in an injury or fatality.
Since
the "reasonable likelihood" requirement of Mathies, supra, has

2062

not been satisfied, it is determined that the "Significant and
Substantial" designation of this violation should be stricken.

c.

Penalty Assessment 5

LMMC is the owner and operator of the Hopemore Shaft, a
small underground gold and base metals mine.
It had a history of
seven violations in the pertinent two-year period preceding the
issuance of the citation. LMMC's ability to continue in business
will not be placed in jeopardy by the payment of a reasonable
penalty in this matter. MSHA does not contend that LMMC, after
notification of the violation did not proceed in good faith to
promptly .abate the same (T. 67). Based on the evidence previously discussed, LMMC is found to be but moderately negligent in the
commission of this violation.

In view of the failure of the evidence with regard to the
alleged "Significant and Substantial" nature of this violation,
the paucity of the evidence bearing .. on whether there was a reasonable likelihood that the hazard envisioned would occur as a
result of the violation's contribution, and the Inspector's opinion that the existence of the refuge chamber would lessen the
likelihood of the occurrence of a fatality should a contemplated
hazard come to fruition, the violation is found to be of only a
moderate degree of gravity. Weighing these criteria, a penalty
of $100 is here assessed.
ORDER
1.
.Citation No. 3633365 is MODIFIED to delete the
significant and Substantial 00 designation thereon and is
otherwise AFFIRMED.
00

2.
Respondent LMMC SHALL PAY to the Secretary of Labor
within 40 days from the date hereof the sum of $100 as and for a
civil penalty.

~~~~£'?.{!/ #. ~-ed;-1 ;4.
Michael A. Lasher, Jr.
Administrative Law Judge

5

Petitioner seeks a penalty of $85 in this matter.

2063

Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Office Building, 1961 Stout Street, Denver,
Colorado 80294
(Certified Mail)
George E. Reeves, Esq., 4704 Harlan Street, Suite 300, Denver,
80212
(Certified Mail)
ek

2064

co

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

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 91-75
A. c. No. 15-16323-03514
Black Mountain Mine

WASTE COAL MANAGEMENT, INC.,
Respondent
DECISION APPROVING SETTLEMENT

Before:

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under section lOS(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). The parties have filed a joint
motion to approve a settlement agreement and to dismiss the case.
A reduction in penalty from $273 to $70 is proposed. I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
appropriate under the criteria set forth in section llO(i) of the
Act.
and

WHEREFORE; the motion for approval of settlement is GRANTED,
is ORDERED that respondent pay a penalty of $70 within
of t.his order"

urer
ative Law Judge
Distribution~

Joseph B. Luckett, Esq., Office of the Solicitor, U. S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Mr. W. H. Crandall, President, Waste Coal Management, Inc.,
P. o. Box 590092, Birmingham, AL 35259 {Certified Mail)

dcp

2065

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

:r

CONSOLIDATION COAL COMPANY,
Contestant
v.

CONTEST PROCEEDING
Docket No. PENN 92-739-R
Order No. 3699507; 7/2/92

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

Dilworth Mine
Mine I.D. No. 36-04281
DECISION

Appearances:

Daniel E. Rogers, Esg., Consolidation
Coal Company, ,Pittsburgh, Pennsylvania,
for Contestant;
Nancy Koppelman, Esg., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Respondent

Before:

Judge Melick

This case is before me upon the notice of contest
filed by Consolidation Coal Company (Consol) pursuant to
Section 107(e) of the Federal Mine Safety and Health Act
of 1977 1 30 C.F.R. § 801, et seq., the "Act," to challenge
an "imminent danger 11 order of withdrawal issued by the
Secretary under Section 107(a) of the Act.
The withdrawal order at issue charges as

follows~

There were two hot hangers and a third
hanger found arcing across the insulator
found on the G-main haulage. The first one
found at the mouth of the 1-D switch was
found with the insulator on fire. The flame
was from 1 to 3 inches in height. The second
hot hanger found just outby 73 and 1/2 crosscut
had the roof coal and rock hot to the touch and
was smoking when found. The third danger inby
the 75-G mains crosscut was not hot but found
to be arcing across the insulator. These are
trolley wire hangers and the wire is 550 volts d.c.
A citation will accompany this order.

2066

Section 107(a) of the Act provides, in part, as follows:
If, upon any inspection or investigation of
a coal or other mine which is subject to
this Act, an authorized representative of the
Secretary finds that an imminent danger exists,
such representative shall determine the extent
of the area of such mine throughout which the
danger exists, and issue an order requiring the
operator of such mine to cause all persons
except those referred to in section 104(c), to be
withdrawn from, and to be prohibited from entering
such area until an authorized representative of
the Secretary determines that such imminent danger
and the conditions or practice which cause such
imminent danger no longer exists.
Section 3(j) of the Act defines "imminent danger" as the
existence of any condition or practice in a coal or other mine
which could reasonably be expected to cause death or serious
physical harm before such conQ.Jtion or practice can be abated.
This definition was not changed from the definition contained
in the Coal Mine Health and Safety Act of 1969, 30 u.s.c. § 801,
et seq. (1976) (Amended 1977) ("Coal Act"). The Senate Report
for the Coal Act states that an imminent danger is present when
"the situation is so serious that the miners must be removed
from the danger forthwith when the danger is discovered without
waiting for any formal proceeding or notice." s. Rep. No. 411,
91st Cong., 1st Sess. 89 (1969), reprinted in Senate Subcommittee
on Labor, Committee on Labor and Public Welfare, 94th Cong.,
1st Sess. Part I, Legislative History of the Federal Coal Mine
Safety and Health Act of 1969 at 215 (1975) (quotes Coal Act
Legislative History). It further states that the "seriousness
the situation demands such immediate action" because "delays 1
even of a few minutesv may be critical or disastrous. 11 See
Utah Power and Light Companyu 13 FMSHRC 1617 (1991).
In Rochester and Pittsburgh Coal Company v. Secretary,
11 FMSHRC 2159 (1989) 1 the Commission set forth the analytical
framework for determining the validity of imminent danger
·withdrawal orders issued under section 107(a) of the Act.
Commission indicated that it is first appropriate for
judge to determine whether the Secretary has met her
burden of proving that an 11 imminent danger" existed at the
time the order was issued. The Commission also suggested,
however~ that even if an imminent danger had not then existed,
the findings and decision of the inspector in issuing a section
107(a) order should nevertheless be upheld "unless there is
evidence that he as abused his discretion or authority."
Rochester and Pittsburgh, supra, at p. 2164 quoting Old Ben
Coal Corp. v. Interior Board of Mine Operations Appeals, 523 F.2d
at p. 31 (7th Cir. 1975).

2067

The order at issue, No. 3699507, in fact charges
three separate incidents as constituting separate grounds
for issuance of the withdrawal order. It is not disputed
that the first incident was discovered at approximately
8:30 a.m. on July 2, 1992, by an inspection party consisting
of Ronald Hixson, a coal mine inspector for the Mine Safety
and Health Administration (MSHA), Morton Whoolery, the union
walkaround, and Patrick Wise, Consol's inspection escort. It
is further undisputed that at around that time an underground
trolley wire was found to be on fire with flames 1 to 3 inches
in height.
Martin Whoolery, who corroborated the testimony of
Inspector Hixson in essential respects, recalled that they
first saw a glow in the distance and, as they approached,
observed that the hanger was actually on fire. Whoolery
testified that Wise then called the dispatcher and pulled
the power. At that point Whoolery removed and replaced the old
insulator. According to the expert testimony of Ron Gossard,
an electrical engineer and MSHA supervisor, there was a high
probability of ignition of roof coal by the open flames,
particularly coal in the Pittsburgh seam, which is easily
ignited and once ignited spreads rapidly.
Inspector Hixson confirmed that had the fire not
been discovered as soon as it was, there was a chance for
a major mine fire. There was coal in the roof, there was
sloughage of coal on the mine floor and wood cribs were
nearby the open flame. Hixson also observed that the hot
mine roof could fall taking down the trolley wire in its
entirety. With the air velocity in the mine at approximately
535 cubic feet per minute at the location of the fire, the
fire would also likely spread rapidlyo Hixson also observed
that the instant mine liberates 1 to lo5 million cubic feet of
methane in a 24 hour period and the condition was accordingly
that much more aggravatedo In addition to the inspection
party itself u pumpers and the fireboss would also have been
exposed to the hazard.
ConsolQs escortp Patrick Wisev also saw the hot hanger
:Erom about 800 feet away as it was glowing and arcingo He
acknowledged that the condition was dangerous and had it not
been corrected was an imminent dangero
Within this framework of undisputed evidence it is
clear beyond all doubt that the condition found at the
first location at approximately 8~30 aomo on July 2u 1992u
was indeed an IQ imminent danger o" The oral order of withdrawal

2068

issued by Inspector Hixson at that time and subsequently
committed to writing in Order No. 3699507 is accordingly
affirmed.
Inasmuch as the Secretary was unable to prove by a
preponderance of the evidence that even an oral order of
withdrawal had been issued by Inspector Hixson prior to the
abatement of the second and third conditions cited I cannot
affirm those parts of the order. Inspector Hixson himself
testified that he could not recall whether he even told Wise
that a Section 107(a) order was being issued on the second
condition. He further acknowledged that he did not tell Wise
that persons inby had to be withdrawn following the discovery
of the second and third conditions. Wise testified that it
was only after they had replaced the smoking hanger at the
second location that he asked Inspector Hixson "I assume this
will be the same as the other one" and Hixson responded "Yes."
ORDER
Order of Withdrawal No.
Contest herein is DISMISSED.

is AFFIRMED

nd the

(

elick
Admin strative
703-7 6-6261
Distribution~

Daniel E. Rogers, Esq.; Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)
Nancy Fo Koppelman, Esq., Office of the Solicitor,
UoS. Department of Labor, 14480 Gateway Center, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
/lh

2069

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

DEC 1 81992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

)

CIVIL PENALTY PROCEEDING

)

)
)
)

v.

Master Docket No. 91-1
Docket No. KENT 92-110
A.C. No. 15-14990-03534D

)

BLACK WIDOW COLLIERIES LTD.,
Respondent

)

Warco No. 1 Mine

)

ORDER OF DISMISSAL

Before:

Judge Broderick

on November 27, 1992, the.Secretary filed a motion to
dismiss this proceeding on the grounds that on August 12, 1991,
the Respondent and Ernest Varney, President of Respondent entered
into plea agreements, agreeing to plead guilty to charges of
conspiracy to defraud the United states in connection with the
civil violations charged herein. Respondent contracted with
Triangle Research to handle its dust sampling program.
Triangle's principal and agent admitted falsifying the samples
submitted to MSHA and admitted that on numerous occasions they
blew air on the filter surfaces of manufactured dust samples.
Harry White and Ronald Ellis of Triangle have been convicted of
defrauding the government and have been sentenced to prison.
Respondent provided Triangle with signed blank dust data cards
which were submitted to MSHA with the samples.
on August 7 9 1992u Judge Samuel G. Wilson of the Western
District of Virginia sentenced Black Widow Collieries Ltd to pay
a fine of $30,000, $15,000 of which was suspended and to 2 years
probation. Ernest Varney was sentenced to pay a fine of $5,ooo
and to 2 years probation. As part of the plea agreement the
Secretary agreed to move to dismiss pending civil penalty
proceedings against Respondent for violations of the laws
governing the dust sampling program.
I conclude that under the circumstances dismissal of this
proceeding effectuates the purposes of the Mine Act.
Accordingly, this proceeding is DISMISSED.

4uiLLS 9'4fvocfuAd

,./~ ~ames A. Broderick

Administrative Law Judge

2070

Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
suite 400 Arlington, VA 22203 (Certified Mail)
Ernest E. Varney, President, Black Widow Collieries, LTD.,
Box 249, Stanville, KY 41649 (Certified Mail)
Hand delivered to Lead Defense Counsel Committee
/fb

2071

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

DEC 1 8 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

)

PENALTY PROCEEDING

)

)
)
)

v.

Master Docket No. 91-1
Docket No. VA 91-453
A.C. No. 44-05265-035260

)

AMBROSE BRANCH COAL COMPANY,
Respondent

)

Prep Plant No. 1 Mine

)

DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

on November 30, 1992, the.Secretary filed a motion to
approve a settlement between the parties in the above case. The
case includes one alleged violation of 30 C.F.R. § 70.209(b),
each of which was originally assessed at $1,000. The Secretary
continued to assert that the violations resulted from a
deliberate act, which is denied by the mine operator. The degree
of negligence is disputed, and the parties agree to the reduction
in the total penalties from $1,000 to $750.
I have considered the motion in the light of the criteria in
section llO(i) of the Act and conclude that it should be
approved.
Accordingly 0 the settlement motion is APPROVED. The
operator is ordered to pay within 30 days of the date of this
order the sum of $750 for the violations charged in these
proceedingso

~~A6vo~

I James A. Broderick
~ Administrative Law Judge
Distribution~

Mark R. Maleckiu Esq.u Office of the Solicitor, U.S. Department
of Laboru 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
{Certified Mail)
Paul R. Ison, Ambrose Branch Coal Company, Post Office Box 806,
Pound, VA 24279 (Certified Mail)
/fb

2072

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

DEC 1 81992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

)

CIVIL PENALTY PROCEEDING

}

)
)
)

v.

Master Docket No. 91-1
Docket No. VA 91-583
A.C. No. 44-04079-035250

)

CAROL COAL CORPORATION,
Respondent

)

No. 1 Mine

)

ORDER OF DISMISSAL

Before:

Judge Broderick

On December 1, 1992, the Secretary filed a motion to dismiss
this proceeding on the grounds.that on August 2, 1992, the
Respondent and Donald R. Lester, President of Respondent entered
into plea agreements, agreeing to plead guilty to charges of
conspiracy to defraud an agency of the United States in
connection with the civil violations charged herein. Respondent
contracted with Triangle Research to handle its dust sampling
program. Triangle's principal and agent admitted falsifying the
samples submitted to MSHA and admitted that on numerous occasions
they blew air on the filter surfaces of manufactured dust
samples. Harry White and Ronald Ellis of Triangle have been
convicted of defrauding the Government and have been sentenced to
prison. Respondent provided Triangle with signed blank dust data
cards which were submitted to MSHA with the samples.
On May Sp 1992 9 Judge James c. Turk of the Southern District
of West Virginia sentenced Carol Coal Company to pay a fine of
$30,000 and to 2 years probation. Donald R. Lester was sentenced
to 2 years probation, 2 months home confinement, and a fine of
$5,000. As part of the plea agreement 1 the Secretary agreed to
move to dismiss pending civil penalty proceedings against
Respondent for violations of the laws governing the dust sampling
prograrno
I conclude that under the circumstances dismissal of this
proceeding effectuates the purposes of the Mine Act,
Accordingly, this proceeding is DISMISSED.

j

1tuAu~ kf:3/cd£~
James A. Broderick
Administrative Law Judge

2073

Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400 Arlington, VA 22203 (Certified Mail)
John J. Polak, Esq., King, Betts and Allen, Post Office Box 3394,
Charleston, WV 25333 (Certified Mail)
Hand delivered to Lead Defense Counsel Committee
/fb

2074

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

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

)

CIVIL PENALTY PROCEEDING

}

)
)
)

Master Docket No. 91-1
Docket No. VA 91-460
A.C. No. 44-04862-03541D

)

L & L ENERGY OF HURLEY, INC. 1
Respondent

)

Mine No. 2

)

ORDER OF DISMISSAL

Before:

Judge Broderick

On December 9, 1992, the Secretary filed a motion to dismiss
this proceeding on the grounds that on August 8, 1991, the
Respondent L & L Energy of Hurley, Inc. and Corbin Eugene Cline,
principal of Respondent enetered into plea agreements, agreeing
to plead guilty to charges of conspiracy to defraud an agency of
the United states in connection with the civil violations charged
herein. Respondent contracted with Triangle Research to handle
its dust sampling program. Triangle's principal and agent
admitted falsifying the samples submitted to MSHA and admitted
~hat on numerous occasions they blew air on the filtered surfaces
manufactured dust sampleso Harry White and Ronald Ellis of
Triangle have been convicted of defrauding the Government and
have received prison sentenceso Respondent provided Triangle
with signed blank dust data cards which were submitted to MSHA
with the samples.

'°"

on August
1992 9 Judge James c, turk of the Western
of virginia sentenced L & R Energy to pay a fine of
30p000 of which $15:000 was suspended and to 2 years probation.
Corbin Eugene Cline was sentenced to pay a fine of $5,000 and to
years probationp and 2 months home confinemento As part of the
plea agreementu the Secretary agreed to move to dismiss pending
civil penalty proceedings against Respondent for violations of
the laws governing the dust sampling program.
I conclude that under the circumstances dismissal of this
proceeding effectuates the purposes of the Mine Act.

2075

Accordingly, this proceeding is DISMISSED.
1

r't£4·/Jtl!_Y.7

/Jfj~t/au 1/G/:._

· James A. Broderick
Administrative Law Judge
Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400 Arlington, VA 22203 (Certified Mail)
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
Hand delivered to Lead Defense Counsel Committee
/fb

2076

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

DEC 1 81992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

)

CIVIL PENALTY PROCEEDING

)

)
)
)

Master Docket No. 91-1
Docket No. VA 91-495
A.C. No. 44-04858-03554D

)

BRIARFIELD COAL CORPORATION,
Respondent

)

Mine No. 1

)

ORDER OF DISMISSAL

Before:

Judge Broderick

On November 27, 1992, the Secretary filed a motion to
dismiss this proceeding on the grounds that on August 2, 1991,
the Respondent and James W. Dotson, President of Respondent
entered into plea agreements, agreeing to plead guilty to charges
of conspiracy to defraud an agency of the United states in
connection with the civil violations charged herein. Respondent
contracted with Triangle Research to handle its dust sampling
program. Triangle's principal and agent admitted falsifying the
samples submitted to MSHA and admitted that on numerous occasions
they blew air on the filter surfaces of manufactured dust
sampleso Harry White and Ronald Ellis of Triangle have been
convicted of defrauding the Government and have been sentenced to
prison" Respondent provided Triangle with signed blank dust data
cards which were submitted to MSHA with the samples.
on May 8, 1992, Judge Samuel G. Wilson of the Western
District of Virginia sentenced Briarfield Coal Corporation to pay
a find of $30 0 000 and to 2 years probation. James W. Dotson was
sentenced to pay a fine of $5,000, and to 2 years probation. As
part of the plea agreement the Secretary agreed to move to
dismiss pending civil penalty proceedings against Respondent for
violations of the laws governing the dust sampling program.
I conclude that under the circumstances dismissal of this
proceeding effectuates the purposes of the Mine Act.
Accordingly, this proceeding is DISMISSED.

tlUt0 vt/drv~·di_,

J

James A. Broderick
Administrative Law Judge

2077

Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400 Arlington, VA 22203 (Certified Mail)
Thomas R. Scott, Jr., Esq., Street, Street, Street, Scott &
Bowman, 339 West Main Street, P.O. Box 2100, Grundy, VA 24614
(Certified Mail)
Hand delivered to Lead Defense Counsel Committee
/fb

2078

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

..

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

LUCKY L & L COAL CO., INC.,
Respondent

").

. '.

)
)
)
)
)
)
)
)
)

-. ~ .- :

, ..

CIVIL PENALTY PROCEEDING
Docket No. VA 91-458
A.C. No. 44-02241-03516D
Mine No. 1

ORDER OP DISMISSAL
Before:

Judge Broderick

On December a, 1992, the Secretary filed a motion to dismiss
this proceeding on the grounds that on August 7, 1991, Respondent
Lucky L & L Coal co., Inc., and Robert Lee Brown, principal of
Respondent entered into plea agreements, agreeing to plead guilty
to charges of conspiracy to defraud an agency of the United States
in connection with the civil violations charged herein. Respondent
contracted with Triangle Research to handle its dust sampling
program. Triangle's principal and agent admitted falsifying the
samples submitted to MSHA, and admitted that on numerous occasions
they blew air on the filter surfaces of manufactured dust samples.
Harry White and Ronald Ellis have been convicted of defrauding the
Government" and have received prison sentences.
Respondent
provided Triangle with signed blank dust data cards which were
submitted to MSHA with the samples.
On August lOu 1992u Judge Samuel G. Wilson of the Western
District of Virginiau sentenced Lucky L' L Coal Co.Q Inc.u to pay
~ fine
$30uOOO of which $15 6 000 was suspended and to 2 years
probationo Robert Lee Brown was sentenced to pay a fine of $500
and to 2 years probationo
As part of the plea agreement, the
Secretary agreed to move to dismiss pending civil penalty
proceedings against Respondent for violations of the laws governing
the dust sampling program.

2079

I conclude that under the circumstances dismissal of these
proceedings effectuates the purposes of the Mine Act.
Accordingly, these proceedings are DISMISSED.

~A13~

(/ ~~~7~.A. Broderick
Administrative Law Judge
Distribution:
Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Suite
400, Arlington, Virginia 22203 (Certified Mail)
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, Virginia 24614 (Certified Mail)
Hand Delivered to Lead Defense Counsel Committee
/fcca

2080

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.
GOOD TIMES MINING, INC.,
Respondent

)
)
)
)
)
)
)
)
)
)
,)
)
)

CIVIL PENALTY PROCEEDINGS
Master Docket No. 91-1
Docket No. VA 91-462
A.C. No. 44-06333-035080
Mine No. 2
Docket No. KENT 91-1051
A.C. No. 15-16410-035140
Mine No. 3

ORDER OF DISMISSAL
Before:

Judge Broderick

On December 8, 1992, the Secretary filed a motion to dismiss
these proceedings on the grounds that on August 6, 1991, Respondent
Good Times Mining, Inc., and Jay Wallace, principal of Respondent,
entered into plea agreements, agreeing to plead guilty to charges
of conspiracy to defraud an agency of the United states in
connection with the civil violations charged herein.
Respondent
contracted
Triangle Research to handle its dust sampling
programo
Triangle~s principal and agent admitted falsifying the
samples submitted to MSHAp and admitted that on numerous occasions
they blew air on the filter surfaces of manufactured dust samples.
Harry White and Ronald Ellis have been convicted of defrauding the
GovernmentQ and have received prison sentences.
Respondent
provided Triangle with signed blank dust data cards which were
submitted to MSHA with the sampleso
On August 6r 1992, Judge James Co Turk of the Western District
of Virginiav sentenced Good Times Mining, Inc. to pay a find of
$30v000 of which $15,000 was suspended and to 2 years probation.
Jay Wallace was sentenced to pay a find of $5,000 and to 2 years
probation and 2 months home confinement.
As part of the plea
agreement, the Secretary agreed to move to discuss pending civil
penalty proceedings against Respondent for violations of the laws
governing the dust sampling program.

2081

I conclude that unaer the circumstances dismissal of these
proceedings effectuates the purposes of the Mine Act.
Accordingly, these proceedings are DISMISSED.

,

u!5

A431'2,,aiJ~e/t_

mes A. Broderick
dministrative Law Judge
Distribution:
Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, suite
400, Arlington, Virginia 22203 (Certified Mail)
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, Virginia 24614 (Certified Mail)
Hand Delivered to Lead Defense counsel Committee
/fcca

2082

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

OEC 2 31992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

..

CIVIL PENALTY PROCEEDING

..

Docket No. WEVA 89-274
A. C. No. 46-05682-03505
Ward Mine

TEN-A COAL COMPANY,
Respondent,
DECISION UPON REMAND APPROVING SETTLEMENT
Before:

Judge Maurer

on May 3, 1990, I rendered a decision affirming
section 104{d) (1) Citation No. 2944253 in its entirety and
assessed a $400 civil penalty. That portion of this case was not
appealed and was not affected by the subsequent Commission
decision and the operator has agreed to pay that $400 as part of
the instant settlement negotiation. The crux of the Secretary's
appeal of my decision in this case and the subsequent Commission
decision in Ten-A_Coal Co., 14 FMSHRC 1296 (August 1992) dealt
with my modification of section 104(d){l) Order No. 2944252 to a
section 104{a) citation. The Commission reversed that portion of
decision and remanded this matter to me for further
proceedings.
Subsequently, the parties have proposed to settle this remaining portion of the case by reinstating the section 104(d) (1)
Order and assessing a $300 civil penalty vice the $400 penalty
originally proposed by the Secretary. I have reconsidered the
entire record in this case and I conclude that the proffered
settlement is appropriate under the criteria set forth in
section llO(i) of the Mine Act.
\;fHEREFORE, the motion for approval of settlement is GRANTED.
ORDER
l. Section 104(d) (1) Citation No. 2944253 and
section 104{d) (1) Order No. 2944252 ARE AFFIRMED.

20 83

2. Ten-A Coal Company is ordered to pay the sum of $700
within 30 days of the date of this decision.

aurer
rative Law Judge
Distribution:
Javier I. Romanach, Esq., Office of the Solicitor,

u. S. Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
Harold s. Yost, Esq., 126 West Main Street, Bridgeport, WV 26330
(Certified Mail)
dcp

2084

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

DEC 2 31992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 92-129
A. C. No. 44-06533-03534

v.
:

Mine No. 1

DIXIE MINING COMPANY, INC.,
Respondent
DECISION APPROVING SETTLEMENT

Appearances:

Javier I. Romanach, Esq., Office of the Solicitor,

u. s. Department of Labor, Arlington, Virginia, for
the Secretary;
Sam Blankenship, President, Dixie Mining Company,
Inc.u Bristol, Virginia, for Respondent.

Before:

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 {the Act). At hearing, on November 24, 1992,
in Abingdon 1 Virginia, after ·the completion of testimony, the
parties made a motion
approve a settlement agreement and to
dismiss
case. A reduction in penalty from $500 to $150 was
proposed. r have considered the representations 1 documentation
and
testimony submitted in this case, and I conclude that
the proffered settlement is appropriate under the criteria set
forth in section llO(i) of the Mine Act.
\llllEREFOREv the motion for approval of settlement
GRANTED,
and
ordered that respondent pay a civil penalty of $150
within 30 days of this order.

aurer
rative Law Judge
Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, u. s.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203, (Certified Mail)
Mr. Sam Blankenship, President, Dixie Mining Company, Inc.,
P. o. Box 909, Bristol, VA 24203 (Certified Mail)
2085

PBDBBAL lllD SDBTY HD HEALTH RBVI:BW COllJIXSSJ:OB
OFFICE OF ADMINISTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 281992
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
DONALD BOWLING,
Complainant

Docket No. KENT 92-1052-D

..

and

Mine ID 15-13937 and
15-13937 AFW
MSHA Case No. BARB CD 92-28

DONALD BOWLING,
Intervenor

.
.

v.

PERRY TRANSPORT, INC.,
a Corporation; STEVIE CALDWELL,
TRUCKING, INC., a Corporation;
and STEVIE CALDWELL,
an Individual,
Respondents
DECISION
Appearances:

Stephen D. Turow, Esq., Office of Solicitor, U.S.
Department of Laboru Arlingtonu Virginiau for
Complainant9
Tony Oppegardu Esq.u Lexingtonu Kentucky, for
Complainant• and
Sara Walter Combs, Esq. , Stanton,
Kentucky, for Respondents.

Beforeg

Judge Fauver

This
an application for temporary reinstatement pending
final determination of the merits of a minervs complaint of
discrimination, under § 105 (c) of the Federal Mine Safety and
Health Act
l977g 30 u.s.c. § 801 et seg.
The application, filed on September 15, 1992, states that the
Secretary reviewed Mr. Bowlingis complaint to MSHA and determined
that it was not frivolous.

2086

With the parties agreement as to the date, a hearing on the
application was held on October 20, 1992.
The parties did not
object to a posthearing briefing schedule after receipt of the
transcript rather that oral arguments and a decision without the
transcript.
Pending briefs, the secretary moved that temporary
reinstatement, if granted, be made retroactive to October 27, 1992.
Respondents filed an opposition to the motion.
At all relevant times, Lost Mountain Mining Co. operated coal
mines in Kentucky, producing coal for sale or use in or
substantially affecting interstate commerce.
Donald Bowling was employed by Stevie Caldwell Trucking, Inc. ,
from February 1990, to February 7, 1992. He drove a coal truck
under the corporation's contract with Perry Transport, Inc., which
has had a longstanding contract with Lost Mountain Mining Co. to
transport coal produced at its mines.
Stevie Caldwell Trucking, Inc., is a Kentucky corporation that
owns one truck. The corporation was established by Stevie Caldwell
upon the suggestion and guidance of his father, David Caldwell, as
a means of contracting with Pe:i"ryTransport, Inc., to deliver coal
under its contract with Lost Mountain Mining co.
The principal
officers of Perry Transport, Inc., are Dewey Grigsby (President),
David Caldwell (Vice President) and Zack Caldwell (SecretaryTreasurer).
I find that Stevie Caldwell Trucking, Inc., and Perry
Transport, Inc., have close economic and family ties warranting
their treatment as co-employers of Donald Bowling as a truck
driver. I also find that the history and nature of Stevie Caldwell
Trucking, Inc. , warrants treating its owner, Stevie Caldwell,
individually as a co-employer of Donald Bowling.
The scope
a hearing on an application for temporary
reinstatement is uu1imited to a determination by the Judge as to
whether t.he mineru s complaint is frivolously brought" and "the
burden of proof shall be upon the Secretary to establish that the
complaint is not frivolously brought." 29 C.F.R. § 2700.44.
To prevail on a petition for temporary reinstatementr the
complainant need only (1) advance a legal theory of discrimination
·that is not frivolous and (2) produce sufficient evidence to
convince the trier of fact that the evidence supporting the legal
theory is not frivolous.
c H Mining Company, Inc., 14 FMSHRC
1362, 1364-5 (1992)0

There can be no argument regarding the sufficiency of
Bowling's· legal theory of discrimination: that the Mine Act
prohibits discharging a miner for making safety complaints to MSHA.
The question is therefore the sufficiency of the evidence to show
that the complaint was not "frivolously brought."

Mro

2087

The term "frivolous" describes s.omething "of little or no
worth" or something that is not "worthy of serious" consideration:
"trifling," "petty," "paltry" and "trivial" are all terms that are
synonymous with the word "frivolous."
Random ·House College
Dictionary. Revised Edition, 531 (1980).
The common meaning of
"frivolous" applies and temporary reinstatement should be granted
unless the Complainant's position is "clearly without merit."
;price and Vacha v. Jim Walter Resources, 9 FMSHRC 1305, 1306
(1987). In applying the term "frivolous" in a similar context, the
Supreme Court ruled that a complaint is not frivolous from an
evidentiary standpoint unless "the factual allegations (supporting
the complaint] are clearly baseless" or "fanciful." Neitzke v.
Williams, 490 U.S. 319, 325-7 (1989) (establishing a test for
dismissing frivolous prisoner complaints under 28 u.s.c. § 1915
(d)): see also: Young v. Kann, 926 F.2d 1396, 1404 (3rd Cir. 1991)
(refusing to dismiss a prisoner's complaint as frivolous since the
claim was
not
based
upon
"completely
baseless
factual
contentions").
The hearing evidence shows a sharp dispute of the facts
concerning the termination of Mr. Bowling's employment.
Mr. Bowling's version of the facts shows a discharge because of his
safety complaints to MSHA.
Mr. Caldwell's version shows a
voluntary quit having nothing to do with complaints to MSHA.
I do not find that Mr. Bowling's testimony is so incredible or
unworthy of belief as to amount to a "frivolous" complaint.

I therefore conclude that the special concern Congress has
shown to require temporary reinstatement of a miner unless his
claim is frivolous requires temporary reinstatement in this case.
This decision is reached without any opinion as to the ultimate
merits of the complaint of discrimination.
I also find that the Secretarygs motion is well taken to grant
after the hearing

~emporary reinstatement retroactive to five days
on the petition~ ioSov to October 27 0 19920

ORDER
WHEREFORE IT IS ORDERED that~

L
Respondents 0 jointly and severally, shall, within 10 days
from the date of this Order, reinstate Donald· Bowling, pending
final
determination of the merits of his complaint of
discrimination, to the employment position he held immediately
before the termination of his employment on February 7 8 1992 8 with
the same pay, benefits, duties, and other features of employment
that would apply had his employment not terminated.
The
reinstatement shall be retroactive to October 27, 1992, and shall
continue until dissolved, modified, or made permanent by further
order.

2088

2.
Respondents, jointly and severally, shall compensate
Donald Bowling for any lost wages due to the termination of his
employment computed from October 27, 1992, until (1) Donald Bowling
is reinstated in compliance with this Order, (2) he refuses an
offer of reinstatement, or (3) he fails to accept an offer within
five days after receiving a written offer of reinstatement.
Interest shall accrue on the back pay in accordance with the
Commission's decisions on interest. Provided: Back pay due under
this Order shall be reduced by earnings made by Donald Bowling from
other employment since October 27, 1992, and may be reduced further
by proof of failure to mitigate damages by reasonable and diligent
efforts to find other gainful employment since October 27, 1992.
3.
The parties shall confer within seven days of receipt of
this Order in an effort to stipulate damages and interest due under
this Order, and within another seven days report any agreed amount
to the judge.
If the parties do not agree, counsel for the
Secretary and Complainant shall promptly file a statement of
proposed damages and interest.
After an opportunity to reply, a
hearing may be held on any issues of fact concerning damages.
4.
counsel for the Secretary and Complainant shall promptly
file a Satisfaction of Order upon Respondents' compliance with this
Order.

s. The Secretary's motion for temporary reinstatement
retroactive to October 27, 1992, is GRANTED. Provided: the 90-day
period for the Secretary to file a complaint for permanent
reinstatement (provided in 29 C.F.R. § 2700.44(f)) shall run from
October 27, 1992. If such a complaint is not file~within 90 days
from that date, this Order hereby constitutes a Show cause Order to
the Secretary to show cause in writing why this temporary
reinstatement order should not be dissolved effective the 91st day
after October 27q 1992.
This Decision and Order shall not constitute the judge 0 s
final disposition of this proceeding until a decision on damages is

issued"

cJ.J4~~~v~

William Fauver
Administrative Law Judge

Distributiong
Stephen D. Turow, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 (Certified
Mail)
Sara Walter Combs, Esq., P.
(Certified Mail)

o.

Box 828, Stanton, Kentucky 40380

Tony Oppegard, Esq., Appalachian Research & Defense Fund 0f
Kentucky, Inc., 630 Maxwelton Court, Lexington, Kentucky
40508
(Certified Mail)
2089

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-519-M
A.C. No. 48-00154-05549

v.

Big Island Mine and
Refinery

RHONE-POULENC OF WYOMING CO.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Morris

The issues presented here are:
(1) whether Secretary's Motion
for Late Filing of her Proposal for Penalty should be granted; and
(2) whether the proceedings should be dismissed because of a delay
of 237 days in notifying Respondent of the proposed penalty.
Factual Background:
~"
On October 2p 1991 1 a Citation was issued by the Federal
Mine Safety and Health Administration ("MSHA"} to Respondent,
pursuant to § 104 of the Federal Mine safety and Health Act (30
u.s.c. § 814). on May 26p 1992, Respondent was notified of a
proposed penalty assessment of $1,000.

2.
On August 14, 1992, the Secretary filed her motion to
accept late filing of her Proposal for Penalty 1 pursuant to commission Rule 10, 29 C.F.R. § 2700.14.

3.
Pursuant to Commission Rule 27(a) 1 the Secretary 1 s
proposal for penalty should have been filed by July 31, 1992. The
proposal for penalty was, in fact, filed on August 14, 1992, two
weeks after the Commission 1 s deadline.
4.
penalty.

Respondent moved to dismiss Secretary's proposal for

2090

Discussion
I

The Commission case law is well established. The late filing
of a penalty proposal has been permitted where the Secretary shows
adequate cause for the delay. An equally important facet concerning
late filing involves prejudice to the operator. Salt Lake County
Road Department, 3 FMSHRC 1714 (July 1981). In a subsequent
decision, Medicine Bow Coal Company, 4 FMSHRC 882 (May 1982) the
Commission elaborated on the decision in Salt Lake stating "[t]he
Judge [in Medicine Bow] correctly interpreted Salt Lake as creating
a two-part test. Salt Lake first established that the Secretary
must show adequate cause for any delayed filing." 4 FMSHRC at 885.
Furtherf "(w]e also heed in Salt Lake that adequate cause notwithstanding dismissal could be required where an operator demonstrates
prejudice caused by the delayed filing," 4 FMSHRC at 885.
In the instant case, the Secretary's justification for her late
filing is that "[t]he case was sent by the Arlington office to
Denver but not received by the O.!=nver. Office of the Solicitor until
August 3, 1992."
(See Penalty for Proposal! 3).
I agree with Respondent that the above-stated bare assertion by
the Secretary does not show adequate cause.
The Secretary's 45 days were up on July 31, 1992. The case was
apparently not sent to the Solicitor until after the deadline. No
explanation is advanced for the Secretary's failure to comply with
the deadline. An unexplained excuse cannot arise to the level of
adequate cause.
·~he

It is, however, appropriate to consider the issues raised in
Secretary 1 s statement in opposition to Respondent's motion.

The Secretary states that Respondent did not demonstrate any
udice and merely seized upon a procedural irregularity to jusify the drastic remedy of dismissal. The Secretary's efforts to
inject prejudice as an issue are rejected. As stated in Medicine
the two-part test initially requires the Secretary to show
udice"
The Secretary in her statement further elaborates on her
reasons for missing the penalty proposal filing deadline by two
weeks and asserts that these reasons amount to "adequate cause. 91
The Secretary explains the filing was two weeks late because:
(1) changes in MSHA's civil penalty assessment process resulted in
the need to recalculate many assessments and renotify many operators; (2) the invalidation of MSHA's "excessive history" program
caused hundreds of citations to be dismissed and then refiled and
reassessed; and (3) MSHA lacks sufficient clerical personnel.

2091

Essentially, the Secretary argues that MSHA was unusually busy
as a result of its own policy changes and its mistake in trying to
enforce its "excessive history" program, with the problem compounded
by a lack of clerical personnel.
All of Petitioner's excuses have been rejected previously by
the Commission.
Changes in administrative policy or practice do not
constitute adequate cause. River Cement Co., 10 FMSHRC 1602 (Oct.
1986).
Since at least 1981, an unusually high workload and a shortage of clerical personnel do not constitute adequate cause.
Price
River Coal Co., 4 FMSHRC 489 (Mar. 1982); Salt Lake County Road
DeRartment, supra.
Furthermore notably missing from the Secretary's argument is
any explanation why, in light of the asserted work overload, the
Secretary failed to make use of the pre-established procedure for
handling such problems. The leading decision on this issue, Salt
Lake County Road Department, supra, accepted the excuses now offered by Petitioner (high workload and lack of clerical personnel)
as "minimally adequate in this case," but also expressly warned that
these excuses would not suffice-in the future.
3 FMSHRC at 1717.
Moreover, the Commission clearly pointed out that if the Secretary
needs additional time because of a high workload or lack of personnel, her remedy is to obtain an extension prior to the deadline as
allowed by Commission Rule 9, 29 C.F.R. § 2700.9.
3 FMSHRC at 1717
( fn,

8) ,

Inasmuch as the Secretary failed to establish adequate cause,
the late filing of the Proposal for Penalty should be denied.
II

While Respondent only collaterally raises the issue (Brief, p.
4 , the operator further asserts MSHA took 237 days to notify
Respondent of the proposed penalty and thus did not comply with
Section 105(a} of the Act.
Sr fno

Section 105{a) of the Act, 30 u.s.c. § 815(a), provides that
after the Secretary issues a citation or order under section 104,
she shall within a reasonable time notify the operator of the
proposed civil penalty to be assessed for the cited violation.
The Mine Act does not define "reasonable time." However, the
following statements of the Senate Committee are instructive:
To promote fairness to operators and miners and
encourage improved mine safety and health generally, such
penalty proposals must be forwarded to the operator and
miner representative promptly. The Committee notes,
however, that there may be circumstances, although rare,
when prompt proposal of a penalty may not be possible, and
the Committee does not expected that the failure to

2092

propose a penalty with promptness shall vitiate any
proposed penalty proceeding.

s. Rep. No. 95-181, 95th Cong., 1st Sess. 24 34, reprinted in Senate
Subcommittee on Labor, Comm. on Human Resources, 95th Cong., 2
Sess., Legislative History of the Federal Mine Safety and Health
Act, at 622 (1978).
The Commission has apparently not addressed this issue but it
has been considered by some Judges' decisions.
In Heldenfels Brothers. Inc., 2 FMSHRC 851 (April 1980), a
judge denied a motion to dismiss where there was a 220-day delay on
the ground that MSHA's assessment procedures required considerable
time and that the operator had not shown that it suffered any actual
harm. However, in Anaconda Company, 3 FMSHRC 1926 (August 1981),
another jud~e dismissed a case where there had been nearly a twoyear delay and the Secretary offered no reasons for the delay, but
this same judge subsequently refused to dismiss a case for a 132-day
delay because the operator had not claimed prejudice.
Industrial
Construction Corp., 6 FMSHRC 2'181 (Sept. 1984). Delays of a year
and a half and two years have not been countenanced. Washington
Corporation, 4 FMSHRC 1807 (October 1982).
In the instant case, there was a delay of 237 days from when
the Citation was issued to the issuance of the proposed penalty.
However, the delay is within the parameters allowed in the above
cited cases.
While Respondent asserts it was "inherently prejudiced" by the
delay, it has failed to allege any factual basis to establish such
prejudice.
Accordinglyv I enter the following:
ORDER

1.
Respondent's Motion to Dismiss under Section 105(a) of the
Act is DENIED.
Secretary 1 s motion to accept late filing of Proposal for
Penalty is DENIED.
2o

3o

Respondentvs Motion to Dismiss is GRANTED.

Law Judge

2093

Distribution:
Susan J. Eckert, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, co 80294
(Certified Mail)
Daniel A. Jensen, Esq., KIMBALL, PARR, WADDOUPS, BROWN & GEE, P.O.
Box 11019, Salt Lake City, Utah 84147
(Certified Mail}
ek

2094

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

2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 2 91992
EDD POTTER COAL COMPANY,
Contestant

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

)

CONTEST PROCEEDINGS

)

)
)
)

Master Docket No. 91-1
Docket No. KENT 91-680-R
through KENT 91-697-R

)

}
)

Citation Nos. 9858737
through 9858754; 4/4/91

)

)
)

Mine No. 2
Mine ID 15-05436

)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'l'ION (MSHA) ,
Petitioner

v.

)

CIVIL PENALTY PROCEEDING

)

)
)

Docket No. KENT 91-1136
A.C. No. 15-05436-035310

)

)
EDD POTTER COAL COMPANY,
Respondent

Mine No. 2

)
)

ORDER OF DISMISSAL
Before~

Judge Broderick

December B, 1992, the Secretary filed a motion to dismiss
proceedings on the grounds that on May 11, 1991, the
Respondent Edd Potter Coal CompanyQ and David Potter, principal
of Respondent entered into plea agreements, agreeing to plead
guilty to charges of conspiracy to defraud an agency of the
United States in connection with the civil violations charged
hereino Respondent contracted with Triangle Research to handle
it.s dust sampling program. Triangle~s principal and agent
admitted falsifying the samples submitted to MSHA and admitted
that on numerous occasions they blew air on the filtered surfaces
of manufactured dust samples. Harry White and Ronald Ellis of
Triangle have been convicted of defrauding the Government and
have received prison sentences.
·~hese

On August 10, 1992, Judge Joseph M. Hood, of the Eastern
District of Kentucky, sentenced Edd Potter Coal Company to pay a
fine of $25,000 and to 2 years probation. David Potter was
sentenced to 2 years probation including 3 months of home
detention and 3 months of community service. As part of the plea
agreement the Secretary agreed to move to dismiss pending civil

2095

penalty proceedings against Respondent for violations of the laws
governing the dust sampling program.
I conclude that under the circumstances, dismissal of these
proceedings effectuates the purposes of the Mine Act.
Accordingly, these proceedings are DISMISSED.

"'~ A/iwdv.~

James A. Broderick
Administrative Law Judge
Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400q Arlington, VA 22203 (Certified Mail)
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, _'YA 24614 (Certified Mail)
Hand delivered to Lead Defense Counsel Committee
/fb

209 6

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

nr r\.. /:;
'1 ·91992
:vt

RED DOG COAL CORPORATION,
Contestant

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

)

CONTEST PROCEEDING

)

)
)
)

Master Docket No. 91-1
Docket No. KENT 91-698-R
Citation No. 9859294; 4/4/91

)

)
)

Mine No. 3-A
Mine ID 15-15908

)

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

)
)
)

Docket No. KENT 91-1112
A.C. No. 15-15908-03525D

)

)
RED DOG COAL CORPORATION,
Respondent

CIVIL PENALTY PROCEEDING

)

Mine No. 3-A

}
)

ORDER OF DISMISSAL
Before~

Judge Broderick

On December 9u 1992u the Secretary filed a motion to dismiss
proceedings on the grounds that on August 7u 199lu the
Respondent Red Dog Coal Corporation and Ronnie Alan Edwardsr
principal of Respondent entered into plea agreements, agreeing to
plead guilty to charges of conspiracy to defraud an agency of the
United States in connection with the civil violations charged
hereino Respondent contracted with Triangle Research to handle
its dust sampling program. Triangle 0 s principal and agent
admitted falsifying the samples submitted to MSHA and admitted
that on numerous occasions they blew air on the filtered surfaces
manufactured dust samples. Harry White and Ronald Ellis of
Triangle have been convicted of defrauding the Government and
have received prison sentences.
~hese

On August 7, 1992, Judge Samuel J. Wilson of the Western
District of Virginia sentenced Red Dog coal Corporation to pay a
fine of $30,000 of which $15,000 was suspended and to 2 years
probation. Ronnie Alan Edwards was sentenced to pay a fine of
$5,000 and to 2 years probation and 2 months home confinement.
The Secretary agreed to move to dismiss pending civil penalty

2097

proceedings against Respondent for violations of the laws
governing the dust sampling program.
I conclude that under the circumstances, dismissal of these
proceedings effectuates the purposes of the Mine Act.
Accordingly, these proceedings are DISMISSED.

diu,11.u.5 ,.Jvf3 (fl/~ w~

;)dames A. Broderick
Administrative Law Judge

L

Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suita 400, Arlington, VA 22203 (Certified Mail)
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, .,,....VA 24614 (Certified Mail)
..

Hand delivered to Lead Defense Counsel committee
/fb

2098

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

2g1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 92-17
A.C. No. 15-13920-03720-A
Pyro No. 9 Wheatcroft

DAVIS A. SHOULDERS
EMPLOYED BY PYRO MINING CO.,
Respondent
DECISION

Appearances:

Steve D. Turow, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia
for Petitioner;
Flem Gordon, Esq., P.S.C., Madisonville,
Kentucky, for Respondent.

Before:

Judge Barbour

This civil penalty proceeding was initiated by the Secretary
of Labor ("Secretary") against Davis A. Shoulders pursuant to
Section llO(c) of the Federal Mine Safety and Health Act of 1977p
30 U.S.C. § 801
seq" (the n1Act 11 ) 1 The Secretary charges,
in~er
p
that at all times relevant to this matter 1 Shoulders
was employed by Pyro Mining Company ("Pyro") as the chief
electrician at Pyro No. 9 Wheatcroft Mine and that on October 26,
1990, he was acting as an agent of corporate operator Pyro when
he knowingly authorizede ordered or carried out a violation of 30
C.F.R. § 75.512v a violation for which Pyro was cited.
o

Section llO(c) of the Act states:
Whenever a corporate operator violates a mandatory health or safety
standard or knowingly violates or fails or refuses to comply with any order
issued under this Act or any order incorporated in a final decision issued
under this Act, except an order incorporated in a decision issued under
subsection (a) or section 105(c), any director, officer, or agent of such
corporation who knowingly authorized, ordered or carried out such violation,
failure, or refusal shall be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under subsections (a) and (d).
30 u.s.c. S 820(c)

2099

The Secretary proposes that a civil penalty of $1,000 be assessed
against Shoulders for the knowing violation. Shoulders generally
denies the Secretary's allegations.
Following the filing of the petition, the Secretary moved to
stay the matter, asserting that an ongoing criminal investigation
of Pyro and several employees at the mine by the U.S. Department
of Justice warranted deferring the civil penalty proceeding until
the Department determined whether to bring criminal charges
against any individual involved in the civil penalty proceeding.
Shoulders did not oppose a stay, and the Secretary's motion was
granted. subsequently, the stay was dissolved upon the
Secretary's assertion that the investigation no longer overlapped
with conditions at issue in the civil penalty proceeding, and the
matter was scheduled to be heard on December 1, 1992, in
Nashville, Tennessee.
Counsel for Shoulders then moved for summary judgement,
asserting as uncontroverted fact that on October 26, 1990, Pyro
was not a corporate entity but was instead a partnership.
Counsel attached to the motion a copy of a statement of Assumed
Name filed on January 27, 1982, with the Secretary of State of
the Commonwealth of Kentucky. The document states that w. K. Y.
Mining (Pyro) Inc., and Costain Mining (Pyro) Inc., exist as a
general partnership in the State of Illinois and intend to
conduct and transact business in Kentucky under the assumed name
of Pyro Mining Company.
Because Section llO(c) subjects only
corporate agents to !ability, counsel for Shoulders moved that
the case be dismissed. Motion for Summary Decision 1-3.
The Secretary opposes the motion. Counsel for the Secretary
contends that while Section llO{c) contemplates liability only
for agents of "corporate operators," Shoulders is not entitled to
summary judgement since Shoulders nwas employed by a corporate
operator on the date the alleged violation occurred.uv Br. in Op.
·co Resp 0 s. Mot. for Sum. Judg't. 2. The essence of the
Secretaryes position is that~
Pyro Mining Company is the product of two
corporations, w. K. Y Mining (Pyro) Inc., and
Costain Mining (Pyro) Inc.p that apparently
farmed a 01 general partnership. 'e Thus, the
issue
not whether an employee of a noncorporate entity can be subject to § llO(c)
liability, but whether a corporation can
exonerate its agents from the responsibility
that Congress intended then to shoulder
simply by entering into partnership with
another corporation. Affirming this
proposition would create a result completely
contrary to (the] language and the spirit of

2100

the Act. . •• Agents of an entity created
and controlled by two or more corporations
are agents of a "corporate operator."
Id. 3.
REQUIREMENTS FOR SUMMARY DECISION
Commission Rule 64(b) is clear. 29 C.F.R. § 2700.64(b). It
states that, "A motion for summary decision shall be granted only
if the entire record, including the pleading, 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." 2 Id. As the Commission has pointed out, summary
decision is an extraordinary procedure and must be entered with
care, for it has the potential, if erroneously invoked, of
denying a litigant the right to be heard. Thus, it may only be
entered when there is no genuine dispute as to material facts and
when the party in whose favor it is entered is entitled to
summary decision as a matter ,of law. Missouri Gravel Co., 3
FMSHRC 2470, 2471 (November 1981). Here, the burden is on
Shoulders, as the moving party, to establish his right to summary
decision, and I conclude that Shoulders has met that burden.
RATIONALE
The language of Section llO(c) is unambiguous in imposing
liability upon "corporate operators" and upon "any director,
officer, or agent of such corporation" (emphasis added). The
Secretary does not dispute that Pyro is a general partnership
composed of two corporations. 3 However, the Secretary's position

Commission Rule 64(a) provides that a motion for summary decision
may be filed "at any time after commencement of a proceeding and before
scheduling of a hearing on the merits". 29 C.F.R. § 2700.64(a). Although,
Shoulders' motion was filed out of time in that a hearing had been scheduled
prior to its submission, for the reasons stated in this decision it would make
a little sense to proceed with the scheduled hearing.
Indeed, there is no factual dispute in this case.
have stipulated as follows:

The parties

(1}
Pyro Mining Company was a general partnership composed of two
corporations W. Ko Y. Mining (Pyro), Inc. and Costain Mining (Pyro), Inc.,
(2)
Pyro Mining Company was a general partnership pursuant to the laws
of the State of Illinois;
(3)
Pyro Mining Company was recognized and authorized to do business
in the Commonwealth of Kentucky as a general partnership;
(continued ••• )

2101

is that Pyro, as a partnership entity composed of ~wo
corporations, has a "corporate nature" and that Shoulders was
thus the employee of a "corporate operator." Id. 5 In short,
the Secretary argues that because Pyro's business arrangement is
much closer to that of a traditional corporation than to that of

3

( ••• continued)

(4)

Pyre Mining Company was not incorporated in any jurisdiction;

(5)
The Uniform Partnership Act had been adopted in both the State of
Illinois and the Commonwealth of Kentucky;
(6)
Pyro Mining Company was authorized to do business as a general
partnership in the Commonwealth of Kentucky and operated in good standing
within the Commonwealth;
(7)
W. K. Y. Mining (Pyro), Inc., had its primary corporate offices at
653 South Hebron Avenue, Evansville, Indiana;
(8)
Costain Mining (Pyre), Inc., had its principal corporate offices
at 653 South Hebron Avenue, Evansville, Indiana;
(9)
Pyre Mining Company operated the Pyro No. 9 Wheatcroft Mine, Mine
I.D. No. 15-13920;
(10) Respondent, Davis A. Shoulders, was an employee of Pyro Mining
Company, a general partnership;
(11) The year in which the violation was issued, the Pyro No. 9
Wheatcroft Mine produced approximately 2,651,687 tons of coal per year;
{12) The year in which the violation was issued, approximately 350
employees were employed at the Pyro No. 9 Wheatcroft Mine;
13}

Respondent, Davis Shoulders, worked at the Pyre No. 9 Wheatcroft

·Mine;
(14) on October 29, 1990, Mr. Curtis Harte, MSHA Inspector and
authorized representative of the Secretary of Labor, issued a
Section 104(d)(2) order pursuant to the Federal Mine Safety Health Act of 1977
and the order issued is Number 3551162;
~15)
The order charged that Pyro Mining Company violated
Section 30 C.F.R. 75.512, an alleged electrical hazardous condition,

(16) on July 10, 1991, and after an investigation, the Mine Safety &
Health .1\dministration assessed a $1, 000 penalty against Respondent Davis
Shoulders, alleging that Respondent was an agent of a corporate operator, that
he knew or should have known of the violative condition cited in Order No.
3551162, and pursuant to Section llO(c) of the Act, he would be held
personally liable for the violation cited in Order No. 3551162;
(17) The notice of contest was timely and properly filed by Respondent;
this tribunal has jurisdiction over the named parties and subject matter.
Stipulations 1-2.

2102

a traditional partnership, Pyro should be considered a defacto
corporation for the purpose of this proceeding.
I reject this
view.
The language of Section llO(c) of the Act restates
Section 109(c} of the Federal Coal Mine Health and Safety Act
of 1969, 30 u.s.c. § 819(c) (1976), and is designed to reach
decision makers responsible for the illegal acts of corporate
operators. Congress, in choosing to make corporate directors,
officers and agents legally responsible for violations of the
Act, purposefully distinguished between those working for and/or
acting on behalf of corporate operators and those similarly
situated working for and/or on behalf of non-corporate operators;
~ for partnerships or sole proprietorships.
This distinction
has been upheld by the courts and by this Commission. Richardson
v. Secretary of Labor, 689 F.2d. 632 (6th Cir. 1982), off'g
Secretary v. Kenny Richardson, 3 FMSHRC 8 (January 1981).
Moreover, it is a distinction based upon a generally accepted
concept of business organization that recognizes the corporation
as a legal creation of the state with powers derived from the
state and applicable law.
While the Secretary notes that at common law a corporation,
generally, was not permitted to form a partnership with another
corporation, she fails to acknowledge that "in most
jurisdictions, the power to participate in a partnership is
recognized by statute or granted in corporate charters." 18 B.
Am Jur 2d, Corporation§ 2117 (1985); Partnership Act§ 2.6.
Certainly, when the Mine Act was enacted, it was not unheard of
for a partnership to be composed of corporate partners, and in
limiting individual liability for knowing violations to
directorsq officers and agents of corporations, I assume Congress
meant exactly what it statedo. In my viewu the judges of this
Commission are not authorized to decide that the directorsp
officers and agents of a non-corporate business entity acting as
an operator may be held liable under Section llO(c) because the
entity embodies and/or exercises various corporate attributeso
Not only would such a decisional approach run counter to the
specific wording of Section llO(c)v it would invite legal
uncertainty by premising liability upon whether an organization
was sufficiently "corporate-like 99 in nature to be considered for
Mine Act purposes a "corporate operatoro"
The Secretary points outv and I fully recognize, that by
subjecting directorsv officers and agents of corporations to
personal liability, Congress was attempting to create an added
incentive for compliance, since corporations might pass off their
monetary penalties as the cost of doing business. See Richardson,
689 F.2d at 632-633, {6th Cir. 1982) Cowin and Company v. FMSHRC,
612 F.2d 838, 840 (4th Cir. 1979). The Secretary may well be
right in asserting that excusing personal liability in the
circumstances of this case has the potential for creating a

2103

loophole in the operator's incentive to comply with the Act and
its regulations. However, I agree with Commission Administrative
Law Judge Gary Melick, who after entertaining similar arguments
from the Secretary, stated:
The Secretary, in essence would have me amend
Section llO(c) to hold liable agents, not
only of corporate operators, but also agents
of partnerships, composed of two
corporations. An administrative law judge is
certainly not in a position to make such an
amendment and . . • [is] certainly bound by
the plain, clear and unambiguous language of
the statute.
Paul Shirel, employed by Pyro Mining Co., 14 FMSHRC
, Docket
No. KENT 92-73 8 etc. (November 17, 1992) (ALJ Melick~ip op.3.
As Judge Melick cogently pointed out, it is Congress that has
chosen to base personal liability upon a corporate distinction,
and it is Congress that should decide whether amendment of the
provision is warranted in light .of these and similar
circumstances. Id. Accordin~ly, and for the foregoing reasons,
this proceeding is DISMISSED.

J)tYV;d £ 5vv-i bcu/L-

David F. Barbour
Administrative Law Judge
(703) 756-5232

Distribution~

Steve Do Turowv Esq.u Office of the Solicitor, U.S. Department of
Labor., 4015 Wilson J3oulevard 8 Arlington, VA 22203 {Certified
l)

Flem Gordonu Esq., Gordon and Gordon, P.S.C., P.O. Box 1305,
Madisonvil ff KY 42431-1305 (Certified Mail)
epy

In opposing Shoulder's Motion for Summary Judgement, counsel for
the Secretary also argued that if the Secretary's pleadings failed to allege
sufficiently the presence of a corporation, the Secretary should be allowed to
a.mend her petition to include w. K. Y. Mining (Pyre) Inc., and Costain Mining
(Pyre) Inc., as entities that operated the mine in which Shoulder's worked.
Br. in Op. to Resp's. Mot. for sum. Judg't 10 N.8. In effect, the Secretary's
pleadings would then allege that Shoulders was an agent of either of the two
corporations. However, in a letter dated November 30, 1992, Counsel for the
Secretary, in effect, withdrew this request.

2104

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

1992

C) r·
f.J
y,

CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 92-231
A.C. No. 15-14533-03542

v.

:
LUCKY BRANCH COAL CO.p INC.u
Respondent

Docket No. KENT 92-535
A.C. No. 15-14533-03543
Mine No. 4

DECISION APPROVING SETTLEMENT
Appearances:

Thomas A. Grooms( Esquire, Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Don Hogg, Vice-President, Whitesburg,
Kentucky, for Respondent

Before:

Judge Melick

These cases are before me upon petitions for assessment
of civil penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Act). During hearings,
the parties filed a motion to approve settlement and to
dismiss the caseso A reduction in penalty from $1,145 to
$850 is proposed. I have considered the representations and
documentation submitted in these casesr and I conclude that
che proffered settlement is appropriate under the criteria
set forth in Section llO(i) of the Act.
WHEREFORE, the motion ~or a
:iRM:rTEDP and it is ORDERED !that

$850 within 30 days of t~is

J

~v

)

elick
Admi istrative
703- 56-6261
I

nt is
nalty

J'BDBRAL lll'.11B SU'Bft DD HBAL'l'B ltBVXBW COlllllSS:IOB
OFFICE OF ADMINISTRATIVE LAW JIJ)GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE

FALLS CHURCH, VIRGINIA 22041

:"">·, -:-'

~ ...

.) ~~ ·~;

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

.
...

.:••
..
v.
..
ALLAN GOODE, Employed by
CONSOLIDATION COAL COMPANY, .
.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 91-2096
A.C. No. 46-01438-03900A
Ireland Mine

0

Respondent

•

DECISION

Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
David J. Hardy, Esq., Charleston, West Virginia,
for Respondent.

Before:

Judge Fauver

This is a fetition for a civil penalty against a foreman
under § llO(c)
of the Federal Mine Safety and Health Act of
19 7 7 0 3 O u. S • C.. § 8o1 et seq.·
~aving considered the hearing
~holeg I find that a preponderance

evidence and the record as a
of the substantialu reliableu
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:

~

Section 110 (c) provides: "Whenever a corporate operator
a mandatory health or safety standard or knowingly
violates or fails or refuses to comply with any order issued under
this Act or any order incorporated in a final decision issued under
this Act, except an order incorporated in a decision issued under
subsection (a) or section 105(c), any director, officer, or agent
of such corporation who knowingly authorized, ordered, or carried
out such violation, failure, or refusal shall be subject to the
same civil penalties, fines, and imprisonment that may be imposed
upon a person under subsections (a) and (d)."
~iolates

2106

FINDINGS OF FACT
1.
At all relevant times, Consolidation Coal Company
operated Ireland Mine in West Virginia, producing coal for sale
or use in or substantially affecting interstate commerce.
2.
Respondent, Allan Goode, was employed by Consolidation
Coal Company as a section foreman at the Ireland Mine for 23 of
his 26 years at the mine, supervising seven to nine miners. His
typical crew consisted of two roof bolters, a continuous miner
operator, a loading machine operator, two shuttle care operators,
a mechanic and sometimes two center roof bolters.
3.
On or about March B, 1990, 2 Geode's crew was cutting
an overcast in the 3 North Face Section. An overcast requires a
higher cut than normal because two entries will cross over the
area. In addition, 12 foot planks are installed on 2 1/2 to 3
foot centers with wire mesh. Without an overcast, roof planks
are normally on 4 foot centers and wire mesh is not used.
4.
Goode's crew was using a 1036 Jeffrey Continuous Miner
Machine. George Holmes was the miner operator, the left bolter
was Donald Conner, and the right bolter was Charles Minor. The
continuous miner was equipped with a mounted, or "integral," roof
bolting machine and plank jack on each side of the miner, and an
automated temporary roof support system ("ATRS") of four jacks
(two jacks on each side of the miner).
5.
Permanent roof support in the overcast required double
planks with wire mesh and, if necessary, cribbing boards to fit
irregular places in the roof. To build an overcast, the
continuous miner cuts down existing roof support and cuts into
the roof to raise the height for the overcast. The miner is then
backed up to a supported roof area, where a double plank, a
section of wire mesh, and if necessary cribbing boards are
stacked on the plank jackso The miner is then trammed forward
and the ATRS jacks are raised firmly against the roof. After
~hat is doneu the roof bolters raise the plank jacks~ drill the
roof holes and install roof bolts pinning the double plank and
materials to the roof. The ATRS is then lowered and the cycle is
repeatedo
60
The two plank jacks on the continuous miner were
between the front and rear ATRS jacks. The roof control plan
provided that the roof bolters "will not advance inby the last
permanent [roof] support until the ATRS system is placed firmly
against the roof.~ Each crew member was fully aware of this
requirement.

2

The petition alleges a violation on March 9, 1990. The
witnesses were not in agreement whether the incident in question
was on March 8, 1990, or March 9, 1990. My finding is that it was
on or about March s, 1990. This is not a significant variance.

2107

7.
On the night in question, the crew installed the first
plank without incident. When they were installing the second
plank, pieces of the roof fell, knocking down the mesh, cribbing
boards and plank. Goode came upon the scene when members of the
crew were trying to free the wire mesh from rocks that had fallen
from the roof.
8.
Goode was known for having a short temper, and became
angry on the spot. He asked the miners "What in the hell is
going on?" and impatiently stated that "one man" could do the
job. With that, Goode climbed up on the continuous miner and
helped to restack the plank, mesh and cribbing boards on the
plank jacks. The miner was trammed forward to the new plank
position. The ATRS jacks were raised. Goode, on top of the
continuous miner and crouching between the front and rear ATRS
jacks, steadied the stacked material on the plank jacks, waiting
for the bolters to raise the plank jacks and bolt the plank. The
stack held by Goode came loose, and a plank fell against Charles
Minor, hitting him on the head. Minor told Goode, "This is
unsafe" and Goode replied, "So is walking down the street, but we
have to do it." Tr. so. Minor and other members of the crew
were intimidated by Geode's angry tone and manner; they had come
to recognize Geode's displays·of temper as permitting no response
or explanation from a subordinate, evoking only silence and
motivation to "keep out of his way."

9.
Goode and the crew restacked the material on the plank
jacks and Goode again steadied the material, crouching between
the ATRS jacks, while the bolters lined up the auger holes and
raised the plank jacks. Goode left as the bolters were drilling
through the plank between the ATRS jacks.
10. During the bolting of the second plank, the ATRS system
was not firmly placed against the roof. The left ATRS jacks were
not touching the roof because of the cavity left by the roof
fallo The left front jack was 12 to 18 inches from the roof and
~he left rear jack was not touching the roof
This meant that
Goode and the two roof bolters worked outby the last permanent
roof support when the ATRS jacks were not firmly placed against
the roof. This was a violation of the roof control plan~
o

1lo Page Whorton was on the left side of the miner and
observed that the two left-side ATRS jacks were not touching th~
roof. He told the left roof bolteru Conneru that the left jack8
~ere not touching the roof"
conner immediately said 11 something"'1
to Goode but Wharton could not hear the words. Goode continued
~ith the process of having the crew install and bolt the second
plank outby the last permanent roof support.

12. Wharton did not tell Goode the ATRS system was not
firmly against the roof because (1) he told Conner and Conner
immediately spoke to Goode, (2) he assumed Goode knew the ATRS
was not firm against the roof and that Goode decided to install
the second plank despite this fact, and (3) he was intimidated by
Geode's angry manner and voice.

2108

13. Charles Minor, the right bolt.er, observed that at least
one of the left ATRS jacks was not touching the roof. He did not
tell Goode because (1) he felt intimidated by Geode's angry
remarks to him and (2) he assumed that Goode knew the ATRS system
was not firmly against the roof and that Goode decided that,
despite this fact, he wanted the crew to drill and bolt the
second plank. They did so, even though this violated the roof
control plan.
14. Donald Conner, the left roof bolter, testified that he
did not see the ATRS jacks and could not tell whether or not they
were touching the roof. He testified that he told Goode they
were having problems and that if the ATRS did not reach the top
they should get jack extensions or put blocks under the miner
cleat tracks, to raise the ATRS to reach the top. Tr. 150.
Goode testified that no one said anything to him about jack
extensions or suggested to him in any way that the ATRS was not
firm against the roof, and that he could not see the ATRS jacks
because he was crouched on top of the miner, steadying the stack
of materials on the plank jacks.
15. Charles Minor reported the incident to David Clarke,
the UMWA Safety Com:mitteeman,-·because he felt that Goode was
responsible for violating the roof control plan. The union
requested MSHA to investigate the matter under § 103(g) of the
Act. On March 19, 1990, an MSHA inspector investigated and cited
the corporation for a violation of .the roof control plan. On
March 22u 1990u the company notified Minor and Conner they were
suspended with intent to discharge for violating the roof control
plan. The company did not take action against Goode. The
company paid a civil penalty of $1,300.00 for the roof control
violation, without contest.
160 The discharge decision went to arbitration under the
labor management contract. The arbitrator found that the company
cause t.o discipline Minor and Conner but 91 compellingr
·'.extenuating circumstances 1u mitigated against discharge.
Specifically 0 t.he arbitrator found that HForeman Goodeu acting on
behalf of u and as mine managernentu had such knowledge of the
precipitant commission of the violation as to constitute culpable
fault by managemento" Exho G-12 0 p. 1. The arbitrator reversed
~he discharges and ordered suspensions of Minor and Conner
;_,Jithout pay from March 22 u 1990 0 until their next scheduled
'-rorkshift. after his decision on April 3 0 1990
o

DISCUSSION WITH FURTHER FINDINGS

On or about March 8 0 1990u Goode and his crew installed a
plank 0 mesh and cribbing boards outby the last permanent roof
support when the ATRS was not firm against the roof. The crew
had never done this before. They knew it violated the roof
control plan and that if ATRS jacks did not reach the roof, they
~hould use jack extensions or put blocks under the cleat tracks
the miner to be sure that the ATRS was firm against the roof.
m~in explanation for the crew's conduct that night is Foreman

2109

Geode's behavior. His demeanor in losing his temper and
screaming at employees made it very difficult for subordinates
to tell him the ATRS was not engaged properly. His actions
indicated to the crew that he was angry about the delay in
installing the second plank: by angrily standing on the miner and
steadying the plank for drilling, he indicated that he wanted the
crew to advance the miner, line up the augers, drill the roof
holes, and bolt the plank to the roof without further comment or
delay. The arbitrator found that Goode displayed "culpable fault
by Management" in connection with the violation by the roof
bolters. I similarly find that Goode was at fault based on the
evidence in this case.
Although Goode contributed to a violation of the roof
control plan by his conduct (intimidating the crew and showing an
angry, aggressive intention to install the second plank without
further comment or delay by any of the crew), the question under
§ llO(c) of the Act is whether, as an agent of the corporation,
he "knowingly authorized, ordered, or carried out such
violation 0>eoo"
Section 3(c) of the Act defines "agent" as "any person
charged with responsibility f-or the operation of all or part of a
coal or other mine or the supervision of the miners in a coal or
other mine." This includes section foremen.
The Commission has interpreted the term "knowingly" as
follows~

"Knowingly," as used in the Act does not have
any meaning of bad faith or evil purpose or
criminal intent. Its meaning is rather that
used in contract law, where it means knowing
or having reason to. know. A person has
reason to know when he has such information
as would lead a person exercising reasonable
care to acquire knowledge of the fact in
question or
infer its existencee 92 Fo
supp. at 780. We believe this interpretation
is consistent with both the statutory
language and the remedial nature of the Coal
Act. Xf a person in a position to protect
~mployee safety and health
to act on
<the basis
information that gives him
knowledge or reason to know of the existence
of ~ violative conditionu he has acted
knowingly and in a manner contrary to the
remedial nature of the statute.
§ecretary v. Bichardson, 3 FMSHRC 8, 16 (1981), 689 F.2d 632 (6th
Cir .. 1982), cert. denied, 461 U.S. 928 (1983).
There is no testimony that anyone told Goode directly that
the A~RS did not reach the roof, and the evidence is unclear
whether Goode could see the jacks from his crouched position on

2110

the miner. I credit Wharton's testimony that he told Conner that
the left ATRS jacks did not reach the roof and that Conner
immediately spoke to Goode. However, Conner testified that he
told Goode i f or in case the ATRS jacks did not reach the roof
they should get jack extensions or put blocks under the miner
cleat tracks.
The deciding issue is whether Good had reason to know that
the ATRS was not firmly placed against the roof. Goode knew that
there was a roof fall that left a cavity about 1 1/2 feet deep by
about 6 to 8 feet long, and the cavity ran from the left side of
the miner to the right (as Goode looked inby). Tr. 217. He had
reason to believe that at least some of the ATRS jacks would go
into the cavity and might fail to press against the roof. Also,
the wire mesh above the left ATRS jacks did not audibly "crunch"
against the roof and in the circumstances Goode had a reasonable
duty to listen for the crunch. Ordinarily, he could expect the
roof bolters to observe the ATRS jacks and to be sure that they
were pressed against the roof before they advanced to raise and
bolt the plank. However, by his demeanor in (1) screaming at
employees and displaying intense anger at the crew's delay in
installing the second double plank, and (2) angrily climbing up
on the continuous miner to steady the plank while waiting for the
bolters to raise the plank, drill the roof and bolt the plank,
Goode created a safety risk that his crew would be intimidated
and not tell him if the ATRS did not reach the roof.
l find that Goodeus unsafe conduct, combined with a
reasonable likelihood that the ATRS jacks in the cavity would not
reach the roof and the fact that the wire mesh on the left side
did not audibly "crunch" against the roof, gave Goode reason to
know 3 that the roof control plan was being violated. I
therefore find that Goode "knowingly authorized, ordered or
carried out [a] violationH within the meaning of § llO(c) of the
Impatience and anger by a supervisor are not conducive to a
environment or compliance with safety standards.
Goodevs conduct endangered Goode, who steadied the plank outby
the last permanent roof support 0 and endangered the two bolters 1
Nho drilled the roof and~bolted the plank outby the last
~orking

ioermanent. Z'Oof support:. o

L)

:s ""A person has reason to know when he has such information as
Bould lead a person exercising reasonable care to acquire knowledge
©f the fact in question or to inf er its existence o e~ Secretary v o
~ichardson 0 §Uprau 3 FMSHRC l6o
~ I do not accept the suggestion by Conner's testimony that
t.he bolters were under supported roof when they drilled and bolted
the plank~ He suggested that they did not have to extend their
bodies beyond the last roof support and could steady the plank,
drill the roof, and bolt the plank within "arm's length" of the
last roof support.
I find that the roof control plan forbade

2111

Considering the applicable criteria in § llO(i) for
assessing a civil penalty, I find that a penalty of $1,000.00 is
appropriate for this violation.
CONCLUSIONS OP LAW

l.

The judge has jurisdiction.

2.
Respondent knowingly violated 30 C.F.R. I 75.220(a)(l)
(roof control plan) within the meaning of § llO(c) of the Act.
ORDER

WHEREFORE IT IS ORDERED that Respondent, Allan Goode, shall
pay a civil penalty of $1,000.00 within 30 days from the date of
this decision.

William Fauver
Administrative Law Judge
Distribution:
Jo Philip Smith, Esq., Office· of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Fourth Floor, Arlington,
Virginia 22203 (Certified Mail)

David J. Hardy, Esq., Jackson and Kelly, 1600 Laidley Tower, Post
Office Box 553, Charleston, West Virginia 25322 .(Certified Mail)
/fcca

advancing beyond the last roof support -- whether by an arm, a leg
or the entire body.

2112

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

OEC 301992
HOMESTAKE MINING COMPANY,
Contestant,

CONTEST PROCEEDINGS
Docket No. CENT 91-217-RM
citation No. 2653241; 8/8/91

v.

Homestake Mine
Docket No. CENT 91-226-RM
Order No. 2653196; 8/23/91

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

Lead Mine
Mine I.D. 39-00055
CIVIL PENALTY PROCEEDING
Docket No. CENT 92-344-M
A.C. No. 39-00055-05681

v.
Homestake Mine - Lead
HOMESTAKE MINING COMPANY OF
CALIFORNIA,
Respondent
DECISION
Appearances~

Henry Chajet, Esq., Ann Simmons, Esq., JACKSON &
KELLY, Washington, DC,
for Contestant/Respondent;
Robert J. Murphy, Esq.u Kristi Floyd, Esq., Office
of the Solicitoru U.S. Department of Labor,
Denveru Colorado,
for Respondent/Petitioner;
Gene Ruff, President, Local 7044, United Steelworkers of America, Lead, South Dakota,
for United steelworkers of America.

Before:

Judge Morris

These consolidated cases are contest proceedings and a civil
penalty proceeding arising pursuant to the Federal Mine Safety

2113

and Health Act of 1977, 30 U.S.C. S 801, et~ (the "Act").
The civil penalty proceeding herein is for the alleged violations
of mandatory regulations enacted pursuant to the Act.
An expedited hearing commenced in Docket No. CENT 91-217-RM
on September 17, 1991. At the hearing held in Denver, Colorado,
the United Steelworkers of America were granted leave to
intervene.
After an extensive conference, Contestant Homestake Mining
Company of California ("Homestake") was granted leave to withdraw
its motion for an expedited hearing. The case was further stayed
until the Secretary proposed a civil penalty.
On November 5, 1991, the Judge vacated Closure Order No.
3630266.
On July 16, 1992, Docket Nos. CENT 91-217-RM and CENT 91226-RM were consolidated.
On October 21, 1992, Docket No. CENT 92-344-M was assigned
to the Presiding Judge.
On October 27, 1992, Docket Nos. CENT 91-217-RM, CENT 91226-RM, and CENT 92-344-M were consolidated.
on November 6, 1992, a settlement motion, executed by Contestant and Secretary, was filed.
The motion was also served on
Cathy M. Dupree, the Miners' Representative of Homestake Mining
Company.
No objection has been filed to the settlement motion.
~n

support of the motion, Contestant and Secretary state as

:'.:ollows ~

Order Noa 3909125
(a)
A section 104(g) (1) Order No. 3909125 was issued to
Homestake by the Secretary on March 25, 1991, alleging a viola~ion of 30 C.F.R. § 48.7(c).
This order was later assessed a
penalty of $20,000.

On the basis of information supplied by Homestake, the
Secretary agreed to reduce the proposed penalty on this Order
from $20,000 to $15,000.

2114

Citation No. 3909122

(b)
A Section 104(a} Citation No. 3909122 was issued to
Homestake by the Secretary on March 16, 1992, alleging a violation of 30 C.F.R. § 57.14205. This order was later assessed a
penalty of $9,000.
On the basis of information supplied by Homestake, the
Secretary agreed to reduce the proposed civil penalty on this
Citation from $9,000 to $6,000.
Citation No. 3901926

(c) A Section 104(a) Citation No. 3909126 was issued to
Homestake by the Secretary on Mary 25, 1991, alleging a violation
of 30 C.F.R. § 48.7(c). This Citation was later assessed a penalty of $20,000.
On the basis of information supplied by Homestake, the
Secretary agreed to reduce the proposed civil penalty on this
Citation from $20,000 to $15,000.
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest.
It should be approved.

ORDER
lo

The stay of proceeding is LIFTED.

2o

The settlement agreement is APPROVEDo

3a
Order Noo 3909125 and the amended penalty of $15,000
are AFFIRMED.
4o
Citation Noa 3909122 and the amended penalty of $6QOOO
are .!il'FIRMEDa
5a
Citation Noa 3901926 and the amended penalty of $15,000
are AFFIRMEDa
6a
contestant/Respondent Homestake Mining Company is
ORDERED TO PAY to the Secretary of Labor the sum of $36,000
within 40 days of the date of this decision.

2115

7.
Contest proceedings CENT 91-217-RM and CENT 91-226-RM
are DISMISSED.

Law Judge

Distribution:
Henry Chajet, Esq., Mark No Savit, Esq., JACKSON & KELLY, 1701
Pennsylvania Avenue, NW, Suite 650, Washington, DC 20006
{Certified Mail)
Ms. Cathy M. Dupree,· Miners' Representative, Mr. Gene Ruff,
President, Local 7044, United Steelworkers of America, c/o
HOMESTAKE MINING COMPANY OF CALIFORNIA, 215 West Main Street,
PoOo Box 875u Leadu SD 57754-1603
(Certified Mail
Robert Jo Murphy 0 Esqou Kristi Floydu Esq.u Office of the Solitor0 U.So Department of Laboru 1585 Federal Office Building,
1961 Stout Streetv Denver, Colorado 80294
(Certified Mail)

ek

2116

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

DEC 301992
SHADY LANE COAL CORPORl..TION
Contestant

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

)

CONTEST PROCEEDINGS

)

)
)
)

Master Docket No. 91-1
Docket No. VA 91-367-R
through VA 91-368-R

)

)
)

Citation Nos. 9861503
through 9861504; 4/4/91

)

·)
)

Mine No. 3
Mine ID 44-06549

)

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

v.

)

CIVIL PENALTY PROCEEDING

)

)
)

Docket No. VA 91-491
A.C. No. 44-06549-03507D

)

)
SHADY LANE COAL CORPOF.A.'I'ION
Respondent

Mine No. 3

)

)

ORDER OF DISMISSAL
Before~

Judge Broderick

On December 17, 1992, the Secretary filed a motion to
dismiss these proceedings on the grounds that on August 9, 1991,
Respondent Shady Lane Coal Company, and Ted Osborne, Jr.u
principal of Shady Lane Coal Companyu entered into plea
agreementsu agreeing to plead guilty to charges of conspiracy to
defraud an agency of the United States in connection with the
civil violations charged herein. Respondent contracted with
Triangle Research to handle its dust sampling program.
Triangle 1 s principal and agent admitted falsifying the samples
submitted to MSHA and admitted that on numerous occasions they
blew air on the filter surfaces of manufactured dust samples.
Harry White and Ronald Ellis of Triangle have been convicted of
defrauding the government and have been sentenced to prison.
Respondent provided Triangle with signed blank dust data cards
which were submitted to MSHA with the samples.

2117

On September 1, 1992, Judge James c. Turk of the Western
District of Virginia sentenced Shady Lane Coal Company to pay a
fine of $30,000 of which $15,000 was suspended and to 2 years
probation. Ted Osborne, Jr. was sentenced to pay a fine of
$5,000, to 2 years probation, and to 2 months home confinement.
As part of the plea agreement the Secretary agreed to move to
dismiss pending civii penalty proceedings against Respondent for
violations of the laws governing the dust sampling program.
I conclude that under the circumstances dismissal of these
proceedings effectuates the purposes of the Mine Act.
Accordingly, these proceedings are DISMISSED.

11-~ A/1Vz:;tht'21?~

(/ .... -':!c:m7s A. Broderick
Administrative Law Judge
Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400, Arlington, VA 22203 (Certified Mail)
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
Hand delivered to Lead Defense counsel committee
/fb

2118

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

DEC 301992
SUNSET LAND & COAL COMPANY,
Contestant

v.

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

)

CONTEST PROCEEDINGS

)

}
}
)

Master Docket No. 91-1
Docket No. VA 91-386-R
through VA 91-397-R

}

)
)

Citation Nos. 9861363
through 9861374; 4/4/91

)

)
)

Mine No. 1
Mine ID 44-06326

)

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

v.

)

CIVIL PENALTY PROCEEDING

)

)
}

Docket No. VA 91-502
A.C. No. 44-06326-035380

)

)
SUNSET LAND & COAL COMPANY,
Respondent

Mine No. 1

)
)

ORDER OF DISMISSAL
Before~

Judge Broder iclc

On December 17u 1992, the Secretary filed a motion to
dismiss these proceedings on the grounds that on August 9, 1991,
Respondent Sunset Land & Coal Companyu and David Stevenson,
principal of Sunset Land & Coal Companyu entered into plea
agreements~ agreeing to plead guilty to charges of conspiracy to
defraud an agency of the United States in connection with the
civil violations charged herein. Respondent contracted with
Triangle Research to handle its dust sampling program.
Triangle 9 s principal and agent admitted falsifying the samples
submitted to MSHA and admitted that on numerous occasions they
blew air on the filter surfaces of manufactured dust samples.
Harry White and Ronald Ellis of Triangle have been convicted of
defrauding the government and have been sentenced to prison.
Respondent provided Triangle with signed blank dust data cards
which were submitted to MSHA with the samples.

2119

On August 6, 1992, Judge James c. Turk of the Western
District of Virginia sentenced Sunset Land & Coal Company to pay
a fine of $30,000 of which $15,000 was suspended and to 2 years
probation. David Stevenson was sentenced to pay a fine of
$5,000, and to 2 years probation, and 2 months home confinement.
As part of the plea agreement the Secretary agreed to move to
dismiss pending civil penalty proceedings against Respondent for
violations of the laws governing the dust sampling program.
I conclude that under the circumstances dismissal of these
proceedings effectuates the purposes of the Mine Act.

Accordingly, these proceedings are DISMISSED.

)tU4t££ /#J:V~
'

James A. Broderick
Administrative Law Judge

Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
suite 400, Arlington, VA 22203 (Certified Mail)
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 {Certified Mail)
Hand delivered to Lead Defense Counsel Committee
/fb

2120

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

OEC 3O1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

)

CIVIL PENALTY PROCEEDING

)

)
)
)

Master Docket No. 91-1
Docket No. VA 91-482
A.C. No. 44-06030-035460

)

BR D COAL COMPANY, INC.,
Respondent

)

Mine No. 2

)

ORDER OF DISMISSAL
Before:

Judge Broderick

On December 17, 1992, the Secretary filed a motion to
dismiss this proceeding on the grounds that on August 8, 1991,
Respondent BR D Coal Company, Inc., and Billy Ray Dotson,
principal of Respondent entered into plea agreements, agreeing to
plead guilty to charges of conspiracy to defraud an agency of the
United States in connection with the civil violations charged
herein. Respondent contracted with Triangle Research to handle
its dust sampling program. Triangle's principal and agent
admitted falsifying the samples submitted to MSHA and admitted
that on numerous occasions they blew air on the filter surfaces
of manufactured dust samples" Harry White and Ronald Ellis of
Triangle have been convicted of defrauding the government and
have been sentenced to prison. Respondent provided Triangle with
signed blank dust data cards which were submitted to MSHA with
the samples.
On August 7u 1992u Judge Samuel G. Wilson of the Western
District of Virginia sentenced B RD Coal Companyu Inc. to pay a
fine of $30 9 000 of which $15 8 000 was suspended and to 2 years
probationo
Billy Ray Dotson was sentenced to pay a fine of
$5~000u to 2 years probation and 2 months home confinement.
As
part of the plea agreement the Secretary agreed to move to
dismiss pending civil penalty proceedings against Respondent for
violations of the laws governing the dust sampling program.
I conclude that under the circumstances dismissal of this
proceeding effectuates the purposes of the Mine Act.

2121

Accordingly, this proceeding is DISMISSED.

r~ ft5rvck~

tf--=~~~~ A. Broderick

Administrative Law Judge

Distribution:
Douglas White, Esq., Mark R. Malecki, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400, Arlington, VA 22203 (Certified Mail}
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main
Street, Drawer 1560, Grundy, VA 24614 (Certified Mail)
Hand delivered to Lead Defense Counsel Committee
/fb

2122

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA}
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 91-563
A.C. No. 05-03672-03508 X02

v.

Docket No. WEST 91-624
A.C. No. 05-03672-03509 X02

AMERICAN MINE SERVICES,
INCORPORATED,
Respondent

West Elk Mine
DECISION

Appearances:

Susan J. Eckert, Esq., Tambra Leonard, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Michael Schultz, AMERICAN MINE SERVICES, INC.,
Aurora, Colorado,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, in these civil penalty proceedings
charges American Mine Services, Inc., ("AMS") with violating
safety r~gulations promulgated under the Federal Mine Safety and
~~eal ch Act,,
30 UoSoCo § 801 et ~p (the 01 Act 11 )
0

0

A hearing on the merits commenced in Denver, Colorado, on
March 10, 1992; a further hearing was on May 29, 1992.

The parties waived the filing of post-trial briefs.
Stipulation

At the commencement of the hearing, the parties stipulated
as

follows~

American Mine Services, Inc. is engaged in providing
services as such services relate to the mining of coal and its
mining operations affect interstate commerce.
Amer~can Mine Services, Inc. is an operator at the West Elk
Mine, MSHA ID number 05-03672-03509 X02.

2123

American Mine Services, Inc. is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.,
Section 801, et seg., hereafter called the Act.
The subject citations and orders were properly served by a
duly authorized representative of the Secretary upon an agent of
the Respondent on the date and place stated therein and may be
admitted into evidence for purposes of establishing their issuance and not for the truthfulness or relevancy of any statements
asserted therein.
The exhibits offered by the Respondent and the Secretary are
stipulated to be authentic, but no stipulation is made as to
their relevance or the truth of the matters asserted therein.
The proposed penalties will not affect the Respondent's
ability to continue business.
The operator demonstrated good faith in abating the
violations.
American Mine Services, Inc. is a medium-sized contractor
with total control hours worked for all contracts of 80,872 in
1991.
A certified copy of the MSHA Assessed Violations History
accurately reflects the history of this mine for the two years
prior to the date of the citations and orders.

West 91-563

This case involves imminent danger Order No. 3583894 issued
under section 107(a) of the Act. The order was followed by Citation Noo 3583895 issued under section 104(a) of the Act.
Order 3583894 stated as

follows~

The following condition was obsrved, (sic)
an employee was observed useing (sic) a
cutting torch at eye level. The employee was
appoximately (sic) 12" inch away and cutting
~olten metal the molten metal was traving
(sic) in all direction in the face area. The
employee had no protective equipment on, no
faceshield or goggles were being worn by the
employee doing the work. This type of hazard
could of been serious consequence or caused
serious physical harm.
(Separate citation
will be issued for the violation)

2124

Citation No. 3583895, issued under section 104(a) of the Act
alleges AMS violated 30 C.F.R. § 77.1710(a). 1
The evidence: as MSHA Inspector David Head, an experienced
electrical inspector and a certified welder, crossed the West Elk
parking lot he saw AMS employee Jones using a cutting torch at
eye level. Jones was welding with an oxygen acetylene torch
without a face shield or eye protection.
(Tr. 16, 28).
The inspector didn't know if he could reach Jones in time to
stop an accident. He reached Jones as quickly as he could.
(Tr.
2 0) •

The molten metal from half inch thick iron was being blown
back into Jones' face. The welding light can be harmful to the
eyes in the absence of properly tinted lens.
When he observed the situation, Inspector Head stopped
Jones.
In five minutes they located Jones' supervisor and AMS
furnished a pair of welding goggles with tinted glass.
(Tr. 19).
Jones had been wearing ~-~~ir ~f regular eye glasses with
wire frames.
Inspector Head did not consider the glasses the
proper protective equipment since there was no shielding around
the sides.
In addition, the regulation requires a face shield or
goggles.
The above facts justify the imminent danger order under
section 107(a) of the Act since an imminent danger is defined as
"the existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated"
30 U.S.C. § 802{j) / Rochester & Pittsburgh Coal Co. 11 FMSHRC
2159 (1989) p (R&P).
See also Wyoming Fuel Company? 14 FMSHRC 1282, 1290-92
(August 1992).
In R&P as well as in Utah Power & Light Co. 13 FMSHRC 1617 1
1621 (199l)v the Commission stated the inspector must be accorded
considerable discretion in determining whether an imminent danger

§

77.1710

Protective clothing; requirements.

Each employee working in a surface coal mine or in the
surface work areas of an unerground coal mine shall be
required to wear protective clothing and devices as
indicated below:
(a) Protective clothing or equipment and face-shields
or goggles shall be worn when welding, cutting, or
working with molten metal or when other hazards to the
eyes exist.

2125

exists because an inspector must act with dispatch· to eliminate
conditions that create such danger. In the instant case loss of
sight certainly involves serious physical harm justifying the
inspector's quick action.
AMS argues Jones merely made a bad judgment call and no
imminent danger existed. For the above reasons and the cited
case law, I find this argument without merit. The imminent
danger order was properly issued. Order No. 3583894 should be
affirmed.
On the merits of the subsequent welding citation, AMS's
witness G. Wayne Jones generally confirmed the inspector's
testimony. He also indicated that the company provided goggles
and a face shield.
Mr. Jones has used a cutting torch for 17 years. He claimed
he was protected from sparks by his welding technique and his
regular eye glasses. I am not persuaded since Mr. Jones agreed
molten metal could bounce back in his face. In addition, he
indicated his technique controlled the sparks only about 95
percent of the time.
(Tr. 36T~
The ·secretary contends the violation was significant and
substantial. In this regard the Commission has ruled that a
violation is properly designated as being S&S" if, based on the
particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature." Cement
Division. National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:
In order to establish that a violation of a
mandatory standard
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
question will be of a reasonably serious
natureo

See also Austin Power Co. v. Secretary 861 F.2d 99, 103-04 (5th
Cir. 1988), aff'gr 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria). The question of whether any specific violation is S&S must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498, 500-01 (April 1988);

2126

Youghiogheny & Ohio Coal co., 9 FMSHRC 2007, 2011-12 (December
1987) .
In connection with the welding citation, and for the above
reasons the evidence of the parties supports all the S&S
criteria.
In assessing any civil penalties AMS should be considered as
moderately negligent since it did not insist its employees use
goggles.
The likelihood of a severe eye injury or possible loss of
sight establish a high level of gravity.
Citation No. 3583895 should be affirmed.
WEST 91-624

Citation No. 3584059, issued under section 104(d) (1) of the
Act, alleges AMC violated 30 c.F.R. 1400-3. 2
The citation reads as fdllows:
The day shift hoistman Charles Treadwell
under the supervision of George Willis - mine
Foreman, failed to conduct the required daily
safety examinations of the hoisting equipment
located at x-cut 93 of the southmains intakes
to insure that the hoisting equipment was
maintained in a safe condition pryer (sic) to
transporting 3 persons down the ventilation
shaft. Mr. Treadwell stated that he had had
a rather busy and hectic morning and had
'neglected to conduct the required safety
checks on the hoist equipment. As a result
of thisv equipment failure 3 men Bob Halesminer v Mike Lane-engineer and Tom Andersonengineer were trapped approximately 200 feet
below the collar deck in the ventilation
shaft for about 2 li2 hours.
Discussion

2

§

75.1400.3

Daily examination of hoisting equipment.

Hoists and elevators shall be examined daily [list of
required examinations) and such examinations shall
include, but not be limited to, the following:

2127

AMC agrees that an examination of the hoisting equipment was
not conducted prior to transporting three persons down the shaft.
However, the operator insists and its evidence establishes that
an inspection was conducted during the last working day and the
day shift. As a result AMS contends the hoistman had until the
end of the day of the inspector's visit to conduct an inspection
and enter it into the log book.
The issue presented is whether the "daily" inspections
required by 30 C.F.R. § 75.1400-3 are to be made at the beginning
of the shift or at any time during the shift.
Congress considered this regulation and stated that hoisting
equipment should be "examined daily." Further, Congress stated
that "[t]his standard should keep mine hoist accidents to a minimum and impart to mine management and workers the essential elements that enter into safe installation and maintenance of hoisting equipment. Hoisting of men and materials is an essential
operation in many mines and has become so commonplace that some
ignore day-to-day inspections or become lax in the operating
phases. Where shaft or slope accidents have occurred because of
failure of the hoisting equipment, they have been due almost
always to lack of inspections and to lack of proper maintenance
of the equipment." See s. Rep. No. 91-411, 9lst Congress, 1st
Session, (1975} reprinted in Senate Subcommittee on Labor Legislative History of the Federal Mine Safety and Health Act of 1977
at 207 (Legis. Hist.).
The views of the Secretary, who is charged with the protection of the safety of the nations' miners, are entitled to due
deference. Missouri Rock, Inc., 11 FMSHRC 136 (1987); Secretary
of Labor on behalf of John w. Bushnell v. Cannelton Industries,
Inc., 867 F.2d 1432 (1989).
Accordinglyv the daily inspections required by C.F.R.
§ 75.1400-3 are to be made at the commencement of the shift or at
least prior to beginning of any hoist functions.
(Tr. 57, 101 1
102) •
The inspector concluded this was in S&S violation. The
applicable case law as to S&S is set for the previous citation"
Under the Mathies formulation there was a violation of 30
CoF.R. § 75.1400-3 in that the hoist was not examined. A measure
of danger was contributed to by the violation. There was also a
reasonable likelihood that the hazard would result in an accident
since an examination would have disclosed a deficiency of the
equipment. Finally, the evidence established that there was a
reasonable likelihood that the accident would be of a reasonably
serious nature. The three workers trapped in the bottom deck
work platform could have been struck by any falling debris from
the derailed collar doors.

2128

The S&S allegations should be affirmed.
UNWARRANTABLE FAILURE

The Secretary contends this violation was due to the
unwarrantable failure of AMS to comply with the regulation.
The special finding of unwarrantable failure, as set forth
in section 104(d) of the Mine Act, 30 u.s.c. § 814(d), may be
made by authorized Secretarial representatives in issuing citations and withdrawal orders pursuant to section 104. In Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), and
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007, 2010 (December
1987), the Commission defined unwarrantable failure as "aggravated conduct constituting more than ordinary negligence by a mine
operator in relation to a violation of the Act." Emery examined
the meaning of unwarrantable failure and referred to it in such
terms as "indifference," "willful intent," "serious lack of reasonable care," and "knowing violation." 9 FMSHRC at 2003.
In
Emery, the Commission also pointed out that in Eastern Associated
Coal Co., 3 IBMA 331 (1974), ,the Interior Board of Mine Operations Appeals ("Board") had defined unwarrantable failure as
"intentional or knowing failure to comply or reckless disregard
for the health and safety of miners." 9 FMSHRC 2003, citing
Eastern, 3 IBMA at 356 n.5 (emphasis added).
To establish unwarrantable failure the Secretary relies on
the fact that Inspector Gutierrez issued a citation for a
violation of 30 C.F.R. § 75.1400-4 (certification by examiner)
apparently five minutes before he issued the contested citation
(compare P-2 and P-3). Without further evidence I do not find
that the described unrelated circumstances constitute aggravated
conduct as required by Emery. The failure to check the hoist
before lowering the men was mere negligence, not aggravated
conduct"
allegations of unwarrantable failure should be stricken.
In assessing any civil penalties AMS should be considered as
moderately negligent.
Even though the operator had checked the
hoist on the previous shiftv the company was nevertheless as a
minimum required to check the hoist before lowering the three
miners.
The previous S&S discussion herein indicates a high level of
gravity on the part of AMS.
Citation No. 3584059, as modified, should be affirmed.

2129

Order No. 3584060, issued under section 104(d) (1) of the
Act, alleges AMC violated 30 C.F.R. § 75.220{a) (1); 3
The citation reads as follows:
This contractor operator has experienced a
hoisting accident which resulted in having 3
persons trapped 200 ft. below the shaft
collar of the ventilation shaft located at
x-cut 93 of the southmains intakes for
approximately 2 1/2 hours George Willis-mine
foreman and Charles Treadwell admitted that
just pryor (sic) to the hoisting accident
that Bob Hales-miner, Mike Lane-engineer and
Tom Anderson-engineer were lower from the
shaft collar on the man-cage approximately 30
'ft. down onto the work platform at which time
the man-cage was released. These men were
then lowered via riding on to of the workdeck
another 170 ft. to an area approximately 20
ft. below the collar where the work platform
stopped. The hoist operator for some unknown
reason decided to bring the man cage up to
the collar area. The metal doors at the
collar area were in a closed position and the
cage rammed right through the doors resulting
in derailing the two doors, the impact in
turn caused the man-cage and crosshead frame
to bind on the guide ropes at a right angle
determined to be approximately 30 degrees.
As a result of the cage and crosshead binding
on the guide ropes ·and jammed on the doors 3
persons on the work platform were trapped in
the shaft
approximately 2 1/2 hours
because the same guide ropes that were binding on the man cage and cross frame are the
same ropes that lower and raise the work
platform.
The approved agreement between American
Mine Services Inc. and MSHA sections
75.220(a) (1) and 75316 in page 11 states and
ctly prohibits the use of the work
3

§

75.220

Roof control plan.

(a)(l) Each mine operator shall develop and follow a
roof control plan, approved by the District Manager,
that is suitable to the prevailing geological conditions, and the mining system to be used at the mine.
Additional measures shal 1 be taken to protect persons if
unusual hazards are encountered.

2130

platform to transport workers/miners up or
down the shaft.
The roof control plan provides, in part that, 11 [u]nder
normal operating conditions the work platform will not be moved
with workers on board."
(Tr. 137, Ex. P-5, page 11).
DISCUSSION

AMS admits it violated the roof control plan (Tr. 12) in
transporting workers on the work platform. However, AMS denies
that the violation was severe.
The issue of severity, under the Mine Act, should be properly discussed in assessing a civil penalty.
In view of the uncontroverted evidence that these workers were lowered on the work
platform and in view of AMS's admission of liability I conclude
that Order No. 3584060 should be affirmed.
In assessing civil penalties AMS should be considered negligent since the company knew the roof control plan requirement.
It nevertheless lowered the miners in the bottom deck work
platform instead of in the man cage. It is not an excuse that
the miners were inspecting the shaft at the time of the accident.
The gravity of the violation is high.
In arriving at this
conclusion, I find the three miners were trapped for 2 1/2 hours
in the shaft. They were in a precarious position and the
derailed collar doors could have fallen and caused severe
injuries.
A portion of this case deals with the cause of the accident.
In shortv was there a defective limit switch as Mr. Gutierrez
or was there no switch as MSHA's witness Mr. Taylor and
AMS s witness Mr. Hancock stated. Mr. Hancock has considerable
with shafts and hoists.
I credit his testimony
together with MSHA's witness Mr. Taylor.
In short, the hoist was
not equipped with an upper limit switch.
(See also Ex. P-7).
Howeverp the failure to have such a switch would only render the
situation more hazardous rather than less hazardous.
The S&S allegations, in view of the uncontroverted evidence
should be affirmed.
For the above reasons Order No. 3584060 should be affirmed.

Further Civil Penalties criteria
AMS's negligence and the gravity of the violations have been
previously considered as to each citation.

2131

Additional criteria for assessing civil penalties is contained in section llO(i) of the Act.
According to the stipulation AMS is a medium sized contractor and the penalties assessed herein are appropriate.
The stipulation further provides that the proposed penalties
will not ·affect the company's ability to continue business.
The operator's prior history is favorable since only 21
violations were assessed against the company in the two years
ending December 17, 1990. Further, AMS had four violations
assessed in the two years ending January 22, 1991.
AMS is entitled to statutory good faith since it abated the
violations.
(Ex. P-1, P-8).
Based on the statutory criteria for assessing civil penalties and for the above reasons I enter the following:
,.ORDER

West 91-563
1.

Order No. 3583894 is AFFIRMED.

2.
citation No. 3583895 is AFFIRMED and a penalty of $600
is ASSESSED.

3.
Citation No. 3584059, as modified, is AFFIRMED and a
1 penalty of $400 is ASSESSED.

c

Li,.

600

Order No.

3584060 is AFFIRMED and a

penalty of

11\SSESSED.

Susan J. Eckertg Esq.g Office of the Solicitor, U.S. Department
of Labor~ 1585 Federal Office Building, 1961 Stout Street,
Denver, co 80294
(Certified Mail)
Mr. Michael Schultz, AMERICAN MINE SERVICES, INC., 14160 East
Evans Avenue, Aurora, co 80014-1431 (Certified Mail)
sh

2132

ADMINISTRATIVE LAW JUDGE ORDERS

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
CONSOLIDATION COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING

.

Docket No. WEVA 92-798
A.C. No. 46-01968-03980
Blacksville No. 2 Mine

:

.

PARTIAL DEC:tS.ION_APPROVING
SETTLEMENT AND STAY ORDER

Appearances:

Before:

Caryl Casden, Esq., U.S. Department of Labor
Office of the Solicitor,
Arlington, Virginia for Petitioner;
Daniel Rogers, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania,
for Respondent.

Judge Feldman

A hearing in Docket No. WEVA 92-798, was held on
November 17, 1992 0 in Morgantown 0 West Virginia. 1 This
proceeding involves two 104(a) Citations. At the hearing the
parties moved for approval of their settlement agreement with
respect to Citation No. 3715434. The parties also jointly moved
for a stay of the remaining citation No. 37207512 • The parties'
joint motions were granted on the record as reflected in this
decision.
Citation No. 3715934 alleges a violation of the regulatory
standard found at 30 C.F.R. Section 75.904, namely, a failure to
adequately mark circuit breakers for identification. At the
hearing 0 the Secretary moved to amend the proposed penalty from
$1 0 155 to $350. The proposed penalty reduction was based on an
1

This docket proceeding was contemporaneously tried with
Docket Nos. WEVA 92-799, 92-800, 92-801. These cases will be
adjudicated in a subsequent decision.
2citation

order.

No. 3720751 was initially issued as a l04(d) (2)
However, it was subsequently modified to 104(a) citation.

2133

error in the initial calculation.
The parties represented that
the respondent has agreed to pay the amended $350 proposed
penalty. As noted on the record, based on the parties'
representations at the hearing, I conclude that the proffered
settlement is appropriate under the criteria contained in Section
llO(i) of the Mine Act.
Citation No. 3720751 was issued as a result of the
respondent's alleged failure to timely abate an alleged violation
of the respirable dust concentration standard on the longwall
jack setter occupation (041) on the 14-M longwall.
The
respirable dust concentration in question was obtained through
the secretary's single sample spot inspection method. The
validity of this method of dust sampling is currently before
Judge Weisberger in Keystone Coal Company Docket Nos. PENN
91-1480-R, 91-1454-R, 92-54-R, 92-114 and 92-119. The parties
have jointly moved to stay further action on this citation
pending final disposition in the Keystone case. While the
respondent concedes that it had an obligation to timely abate the
condition despite its appeal of the underlying dust concentration
violation, the parties maintain that the ultimate resolution in
Keystone may have a bearing on the respondent's inclination to
settle and on the appropriate penalty to be assessed. Good cause
having been shown, the parties joint motion to stay this
proceeding as it pertains to Citation No. 3720751 will be
GRANTED.
CONCLUSION
ACCORDINGLY, the joint motion for the approval of settlement
of Citation No. 3715934 IS GRANTED, and IT IS ORDERED that the
respondent pay a penalty $350 within 30 days of the date of this
decisiono IT IS FURTHER ORDERED that this docket proceeding as
it pertains to Citation Noo 3720751 IS STAYED pending the
disposition in Keystone Coal Companyu supra.

Jerold Feldman
Administrative Law Judge
Distribution~

Charles Jacksonu Esq., Robert Wilson, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Room
516, Arlington, VA 22203 (Certified Mail)
Daniel Rogers, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)
vmy
2134

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

DEC 09 1992

.

ELMER DARRELL BURGAN,
Complainant

DISCRIMINATION PROCEEDING

:

v ..

..
.

:

Docket No. KENT 92-915-D
BARB-CD-92-31

0

HARLAN

CUMBERLAND COAL CO. 8
Respondent

Harlan Mine

ORDER OF CONTINUANCE

Before me for considerati-on is a Joint Motion for Continuance
of the hearing in this matter scheduled for December 22, 1992, in
Lexington, Kentucky.
The instant motion is predicated on the
parties• intention to seek consolidation of this proceeding with
the complainant's discrimination claim against Dixie Fuel Company,
a case that has yet to be docketed or assigned to me.
Harlan
cumberland Coal Company and Dixie Fuel Company are apparently
commonly owned. This matter allegedly concerns safety complaints
made by Mr. Burgan at the Harlan cumberland coal company and
Mr. Burgan•s subsequent transfer and ultimate discharge from his
employment at the Dixie Fuel Company.
In their Joint Motion, the parties have agreed to inform me
when discovery is completed in the Dixie Fuel case.
Upon
completion of discovery and the assignment of the Dixie Fuel matter
~o meu X will issue an order addressing the complainantws request
for consolidation and the rescheduling of these trial proceedingse
In view of the above, the parties' Joint Motion for
Continuance XS GRANTED and the hearing in this discrimination
matter is continued without dateo
Q

Jerold Feldman
Administrative Law Judge
(703) 756-5233

Distribution:
Kent Hendrickson, Esq., Rice, Huff & Hendrickson, 417 East Mound
street, P.O. Box 980, Harlan, KY 40831 (Certified Mail)
Phyllis L. Robinson, Esq., P.O. Box 952, Hyden, KY 41749
(Certified Mail)
2135

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

DEC 301992
PITTSBURG & MIDWAY COAL
MINING COMPANY,
Contestant

.

CONTEST PROCEEDING
Docket No. KENT 93-181-R
Order No. 3857652; 11/3/92

Vo

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

Sebree No. 1 Mine
Mine ID

15-17044

.

ORDER DENYING MOTION FOR EXPEDITED HEARING
AND PREHEARING ORDER

Petitioner included in its Notice of Contest a Request for
Expedited Hearing on the ground that "the Sebree Mine will be
subject to additional improperly issued closure orders under
Section 104(d) (2) of the [Act] as a result of the wrongfully issued
contested Order."
The Secretary opposes the request for an expedited hearing on
the grounds that it does not show extraordinary conditions
warranting
an
expedited
hearing,
it
would
establish
an
inappropriate precedent to grant the request, it would be unfair to
other operators to grant the requestu and it would impose an
unreasonable administrative and budget burden on the Secretary 1 s
limited resources for Mine Act hearings.
Judge John J. Morris denied a similar motion for an expedited
hearing which like the instant matter was predicated solely on the
basis of the issuance by MSHA
§ 104 (d)
citations/orders"
Medicine Bow Coal Coo Vo Secretary of Labor, 12 FMSHRC 904 (Aprilu
1990)0
Initially noting that like the instant matter the
enforcement documents were not issued pursuant to § 107 of the Actu
Judge Morris ruled~
In the instant case contestant 0 s sole basis
for an expedited hearing is that it nis
subject to a continuing possibility of the
issuance of orders pursuant to Section 104(d)
of the Act.n
However, contestant's position
is not unique. Every mine operator is subject
to the "possibility" of the issuance of
"104 (a)" orders.
In addition, these cases
both 104(d) orders and contestant has failed

2136

to allege that it is within the criteria
required by subparagraphs (A), (B) and (C) of
§ 105(a) (B)(2}.
I conclude that the Secretary's opposition to the request for
expedited hearing is well taken.

Accordingly, the request for expedited hearing is DENIED.
In accordance with the provisions of section l05(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq., the above proceeding will be called for hearing on the merits
at a time and place to be designated in a subsequent notice.

1.
On or before January 25, 1993, the parties shall confer
for the purpose of discussing settlement and stipulating as to
matters not in dispute. If settlement is reached, a motion for its
approval shall be filed by the Secretary of Labor no later than
February 1, 1993.
2.
If settlement is not agreed upon, the parties shall send
to each other and to me no latertha.n February 1, 1993, synopses of
their expected legal arguments, expected proof, lists of exhibits
that may be introduced, and matters to which they can stipulate at
the hearing. Each party shall also state its best estimate of the
length of time necessary to present its case at the hearing.

~ }_ I I.~ -::rAM Vt/1-

~am Fauver

Administrative Law Judge

Distribution~
o

Gardner'" EsqO(I Pittsburg & Midway Coal Mining Companyu 6400
FiddlerQs Green Circlev Englewood, CO 80111 (Certified Mail)

Mary Sue TaylorQ Esq.v Office of the Solicitor, U.S. Department of
Laboru 2002 Richard Jones Roadv Suite B-201, Nashville, TN 37215
(Certified Mail)
f cca

2137