SEPTEMBER 1994

COMMISSION ORDERS
09-01-94
09-16-94
09-20-94
09-26-94

Port Costa Materials, Inc.
Rocky Hollow Coal Company, Inc.
Madison Branch Management
Randall Patsy v. Big 'B' Mining Co.

WEST 93-353-M
KENT 94-1051
WEVA 93-218-R
PENN 94-132-D

Pg.
Pg.
Pg.
Pg.

PENN 94-417-D
KENT 93-410

Pg. 1941
Pg. 1949

WEST 92-279-D
CENT 93-39-M
CENT 94-54-M
CENT 94-40-DM
KENT 94-136
WEST 94-162-M
KENT 94-116
KENT 94-520
SE
94-21-M
WEST 94-97-M
KENT 94-427
WEST 92-318-M

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
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PENN 91-451-R
Master 91-1

Pg. 2025

1929
1931
1934
1937

ADMINISTRATIVE LAW JUDGE DECISIONS
09-12-94
09-15-94
09-16-94
09-20-94
09-23-94
09-26-94
09-27-94
09-27-94
09-28-94
09-28-94
09-28-94
09-28-94
09-29-94
09-30-94

Sec. Labor on behalf of William
Kaczmarczyk v. Reading Anthracite
Broken Hill Mining Company, Inc.
Sec. Labor on behalf of Donald Gregory
et al. v. Thunder Basin Coal Co.
Boyer Ready Mix Sand & Rock Inc.
Walker Stone Company, Inc.
Felix Carrasco v. Eddy Potash, Inc.
Manalapan Mining Company
Elmer J. Nicholson empl by A-Rock Inc.
Bob & Tom Coal Company
Crockett Collieries (KY) Inc.
Brown Brothers Sand Company
The Pit
Magic Coal Company
Eastside Rock Products

1951
1953
1955
1962
1964
1967
1974
1994
1996
2008
2015
2022

ADMINISTRATIVE LAW JUPGE ORDERS

08-31-94

Keystone Coal Mining Corp.

i

SBPTEM'.BBR

1994

Review was granted in the following cases during the month of Septe!Dber:

Secretary of Labor, MSHA v. Port Costa Materials, Inc., Docket No. WEST
93-353-M.
(Judge Morris, July 28, 1994} .
Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, Docket No. SE
94-244-R.
(Judge Melick, July 28, 1994}.
Secretary of Labor, MSHA v. Manalapan Mining Inc., Docket No. KENT 93 -614.
(Judge Weisberger, August 8, 1994).
ASARCO, Incorporated v. Secretary of Labor, MSHA, Docket No.
(Judge Maurer, August 8, 1994).

SE 94-362-RM.

Secretary of Labor, MSHA v. Rocky Hollow Coal Company, Docket No. KENT
94-1051.
(Request for relief from MSHA's final order).
Secretary of Labor, MSHA v. Madison Branch Management, Docket No. WEVA
93 - 218-R.
(Judge Feldman, Interlocutory Review of September 8 and 16, 1994
orders) .
Secretary of Labor, MSHA v. D.H. Blattner & Sons, Docket No.
etc.
(Judge Morris, August 15, 1994)

WEST 93-123-M,

Randall Patsy v. Big B Mining Company, Docket No. PENN 94-132-D.
Feldman, August 16, 1994).

(Judge

Secretary of Labor, MSHA v. Amax Coal Company, Docket No. LAKE 94-55.
Feldman, August 19, 1994).

Review was denied in the following case during Septe!Dber;

Thunder Basin Coal Company v. Secretary of Labor, MSHA, Docket No. WEST
94-238 -R .
(Judge Amchan, August 28, 1994).

ii

(Judge

COMMISSION ORDERS

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

20006

September 1, 1994

SECRETARY OF LABOR,
MINE SATETY AND HEALTH
ADMINISTRATION (MSHA),
Docket Nos. WEST 93-353-M
v.
PORT COSTA MATERIALS, INC.

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988).
On July 28, 1994, Administrative Law Judge John J. Morris issued
a decision, in which he disposed of 73 citations issued against
Port Costa Materials, Inc.
The Solicitor's Office of the Secretary of Labor, in a
letter to the judge dated August 12, 1994, pointed out a
discrepancy in the decision with regard to Citation No. 3636555.
The letter stated that, on pages 45 and 46 of the judge 's
decision the citation was discussed and "affirmed," but that on
page 66 of the decision, where the judge summarized the
disposition of the citations in the proceeding, the citation was
listed as "vacated." The letter requested that the "discrepancy
... be addressed/corrected." By letter dated August 15, 1994,
the judge responded to the request by stating that he was limited
by the Commission's Rules to correction of clerical errors and
did not view the correction required as a "clerical error" within
the meaning of the rules.
The judge's jurisdiction in this matter terminated when his
Decision was issued on July 28, 1994. Commission Procedural Rule
69(b), 29 C.F.R. § 2700.69(b) (1993). Under the Mine Act and the
Commission's Procedural Rules, relief from a judge's decision may
be sought by filing a petition for discretionary review within 30
days of its issuance. 30 u.s.c. § 823(d) (2); 29 C.F.R. §
2700.?0(a). We deem the Solicitor's August 12 letter to be a
timely filed Petion for Discretionary Review, which we grant.

1929

See,~,

Middle States Resources. I n c ., 10 FMSHRC 11 3 0
(September 1988).

In light of the appare nt error in the judge's d ecision and
the requeste d relief, we remand this ma tter to the j udge for
further appropriate .proceedings .

, Ch airman

fle~l~o~s6

/ltbol~ssioner
Distribution
William W. Kates , Esq.
Office of the Solicitor
U. S . Departmen t of Labor
1111 Third Avenue, Suite 945
Seattle , WA 98 1 01
Mr . Ross Gephart, President
Port Cosua Materials , Inc .
9000 Carquinez Scenic Drive
P . O. Box 223
Por t Costa, CA 94569
Admi nistrativ e Law Judge John J . Morris
Federal Mine Safety & Hea l th Re view Commission
1 244 Speer Boulevard , Suite 280
Denver, Colorado 80204

1930

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

20006

September 16 , 1994

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

v.

Docket No. KENT 94-1051
A C.# 15-17331-03510

ROCKY HOLLOW COAL COMPANY, INC.

BEFORE: Jordan, Chairman; Doyle and Holen, Commissioners
ORDER
BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (1988)("Mine Act" or 11Act"). On August 1, 1994, the Commission
received from Rocky Hollow Coal Company, Inc. ("Rocky Hollow") a request to reopen
uncontested civil penalty assessments that had become final orders of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Section 105(a) of the Mine Act requires the Secretary of Labor to notify the
operator of "the civil penalty proposed to be assessed" after issuing a citation or order
for an alleged violation. 30 U.S.C. § 815(a). Section 105(a) allows the oper~tor 30 days
to contest a proposed penalty and further provides that, if the operator fails to contest it,
the assessment "shall be deemed a final order of the Commission and not subject to
review by any court or agency." .h'h Rocky Hollow states that it failed to file with the
Department of Labor' s Mine Safety and Health Administration ( 11 MSHA11 ) a 11 Green
Card" notice of contest challenging MSHA' s proposed civil penalties within the 30-day
period set forth in section 105(a), due to "the press of business and management of
other litigation" in which its counsel was involved, and the misplacement of its file by its
counsel, which resulted in the matter not appearing on counsel's calendar. Rocky
Hollow asks the Commission to reopen this matter so that it may file its notice of
contest.

1931

Rocky Hollow failed to contest the proposed assessments within 30 days and,
accordingly, they have become final orders of the Commission. The Commission bas
held that in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b) ("Rule
60(b) "), it possesses jurisdiction to reopen uncontested assessments that have become
final under section 105(a). Jim Walter Resources. Inc., 15 FMSHRC782, 786-89 (May
1993); see also, Jim Walter Resources. Inc., 16 FMSHRC 1209, 1210 (June 1994). Rule
60(b) relief from a final order is available in circumstances such as a party's mistake,
inadvertence, or excusable neglect.
On the basis of the present record, we are unable to evaluate the merits of Rocky
Hollow' s position. In the interest of justice, we reopen the matter and remand it for
assignment to a judge to determine whether Rocky Hollow has met the criteria for relief
under Rule 60(b). If the judge determines that relief under Rule 60(b) is appropriate
. and permits Rocky Hollow to file its notice of contest, this case shall proceed pursuant
to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.
For the foregoing reasons, Rocky Hollow' s request is granted in part and this
matter is remanded for assignment.

~~ L~Jv-

MLJ Jordan, hairman

Arlene Holen, Commissioner

193 2

Distribution
Christo?her Thoillas Ratliff, Esq.
P.O. Box 1306
Pikeville, KY 415J2
C. Bryan Don, Chief
Civil Penalty Processin~ Unit
~ine Safety & Health Administration
U. S. Department of Labor
4013 Wilson Blvd . , Suite 900
Arlington, VA 22203

1933

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

September 20, 1994

Contest Proceedings

MADISON BRANCH MANAGEMENT

Docket Nos. WEV A 93-218-R
WEVA 93-219-R
WEV A 93-220-R

v.

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

Civil Penalty Proceedings

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

Docket Nos. WEV A 93-373
WEVA 93-412

v.

MADISON BRANCH MANAGEMENT

Civil Penalty Proceeding

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

Docket No.

WEV A 93-415

v.

PROTECTIVE SECURITY SERVICES AND
INVESTIGATIONS, INC.

ORDER
Before us is a Petition for Interlocutory Review and Order Suspending Hearing filed
by Madison Branch Management ("Madison"). The Secretary of Labor ("Secretary") supports
Madison's petition. By orders dated September 8 and 16, 1994, Administrative Law Judge
Jerold Feldman denied motions for certification to the Commission of his interlocutory
rulings. See Commission Procedural Rule 76(a)(l)(ii), 29 C.F.R. § 2700.76(a)(l)(ii). A
hearing in these proceedings is currently scheduled for September 22, 1994, before Judge
Feldman.

1934

The judge has issued a number of interlocutory orders, the thrust of which has been to
deny motions by the Secretary to dispose of the above-captioned cases pursuant to a settlement agreement reached among the parties. 1 The judge based his determinations on concerns
that additional abatement measures beyond those required by the Secretary may be necessary
in order to remove the risk to safety posed by the violations at issue.2 We view the instant
petition as one seeking review of these interlocutory orders taken as a whole.3
The Commission concludes that the judge's interlocutory rulings involve a controlling
question of law and that immediate review may materially advance the final disposition of the
proceeding. See 29 C".F.R. § 2700.76(a). The Commission therefore grants Madison's
petition, suspends briefing before the Commission, and stays the hearing set for September
22, 1994, and all other proceedings before Judge Feldman.

M:l~J!~

Arlene Holen, Commissioner

1

These orders include an Order Denying Motions for Approval of Settlements, dated June
8, 1994, an Order Denying Joint Motion for Summary Decision, dated July 22, 1994, and an
Order Denying the Secretary's Motion for Summary Judgment, dated August 29, 1994.
2

See. e.g., Order Denying The Secretary's Motion for Summary Judgment at 2.

3

Rule 76(b) states that "[a] copy of the Judge's interlocutory ruling sought to be reviewed
and of the Judge's order denying the petitioner's motion for certification sh.all be attached to the
petition." 29 C.F.R. § 2700.76(b). Here, the petitioner omitted a copy of the challenged
interlocutory rulings from its petition. However, Madison's request for "immediate review of
Judge Feldman's rulings" concerning "the respondents' good faith efforts to achieve rapid
compliance in abating the citations involved in these proceedings," together with the underlying
motions for certification, sufficiently identify the interlocutory rulings sought to be reviewed.

1935

Distribution
(by fax & regular mail)
Christopher B. Power, Fsq.
Robinson & McElwee
P.O. Box 1791
Charleston, WV 25326
Patrick L. DePace, Esq.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 2220J

James Walker, Esq.
White & Browning Building, Suite 201
P.O. Box 358
Logan, West Vrrginia 25601
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1936

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

September 26, 1994

RANDALL PATSY
DISCRIMINATION PROCEEDING
DOCKET NO. PENN 94- 132-D

V.

BIG "B" MINING COMPANY

ORDER

For the second time, Complainant Randall Patsy appeals from Administrative Law
Judge Jerold Feldman's dismissal of this discrimination proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. ("Mine Act"). Based on
Patsy's apparent wish to pursue this case despite earlier statements suggesting the contrary,
the Commission vacated the judge's initial dismissal of this matter, remanded the case, and
ordered that the judge schedule it for hearing. 16 FMSHRC 1237, 1237-38 (June 1994). On
remand, the judge issued an Order on Remand and Notice of Hearing, setting a hearing date
of September 20, 1994. Following receipt of that order and review of a Commission decision
transmitted to the parties by the judge, Patsy wrote to the judge and stated that he doubted
that he could prove that he was a "miner" and requested the name of "some other agency I
should contact." Thereafter, Patsy communicated with the judge's office twice by telephone
and last stated, on August 5, 1994, that he was consulting with a lawyer and would let the
judge know what the lawyer recommended. On August 16, 1994, the judge issued an Order
Reinstating Dismissal, noting that he had not heard from Patsy nor had his attorney filed an
appearance in the proceeding.
On August 19, 1994, Patsy wrote to the judge, stating that he was appealing the
dismissal and that he felt he had a good chance of winning the case.
The judge's jurisdiction in this matter terminated when his decision was issued on
August 16, 1994. Commission Procedural Rule 69(b), 29 C.F.R. § 2700.69(b) (1993).
Under the Mine Act and the Commission's procedural rules, relief from a judge's decision
may be sought by filing a petition for discretionary review within 30 days of its issuance.

1937

30 U.S.C. § 823(d)(2); 29 C.F.R. 2700.70(a). We deem Patsy's letter to be a timely filed
Petition for Discretionary Review, which we grant. See, ~, Middle States Resources. Inc.,
lO FMSHRC 1130 (September 1988).
The Commission's procedural rules provide that a judge shall issue an order to show
cause prior to entry of any order of dismissal unless a party fails to attend a scheduled
hearing, in which case an order to show cause is not required. 29 C.F.R. § 2700.66(a) and
(b)(1993). Although Patsy's equivocation has tried the patience of the judge and the
Commission, the judge must nevertheless follow the Commission's rules. Accordingly, we
remand this matter to the judge for disposition in accordance with the Commission's rules. In
reopening this matter, we express no views on the merits of the case.
For the reasons set forth above, we vacate the judge's order reinstating dismissal and
remand this matter for further appropriate proceedings.

Arlene Holen, Commissioner

1938

Commissioner Doyle, dissenting:
Although I joined in the Commission's earlier order remanding this case to the
administrative law judge for further proceedings, I must respectfully dissent from my
colleagues' decision to again remand the case.
·
In response to a complaint filed some eight months out of time, the Mine Safety and
Health Administration ("MSHA") determined that Mr. Patsy had not been discriminated
against under the Mine Act, based on the fact that he was "not a 'miner' at the time of the
alleged discharge. " MSHA Letter dated Dec.1, 1993. Mr. Patsy then filed his own
complaint with the Commission, pursuant to section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977 ("Mine Act"). Following indecision by Mr. Patsy as to whether he
wished to pursue the matter under the Mine Act, Judge Feldman scheduled a hearing but
ordered Patsy to show cause why the matter should not be dismissed if he did not state
unequivocally that he wished to pursue his complaint. Mr. Patsy responded by stating that
he "would be better off to pursue this as a civil suit locally." Patsy Letter dated Apr. 18,
1994. The judge dismissed the matter.
Subsequently, Mr. Patsy petitioned for review and, on June 21, the Commission
vacated the Order of Dismissal and remanded for a hearing on the merits because it
"appear[ed] that Mr. Patsy now wishe[d] to pursue his complaint." 16 FMSHR~ 1237, 1238
(1994). On July 11, Judge Feldman rescheduled the hearing for September 20 in Butler,
Pennsylvania. As part of his pretrial order, the judge directed the parties' attention to
Cyprus Empire Com., 15 FMSHRC 10 (Jan. 1993), and the threshold issue of whether Patsy
was a miner. In response to that order, Mr. Patsy advised the judge that he could "not prove
that [he] was a miner at the time [he] was fired" and that his work had been "at a mobile
home park." Patsy Letter dated July 20, 1994. Based on that letter, on Patsy's subsequent
advice to Judge Feldman's secretary that "[he didn't] have a leg to stand on" (Order dated
August 16, 1994), and on his failure to advise the judge of t~e outcome of a planned contact
with an attorney on August 10, Judge Feldman reinstated his earlier order of dismissal.
Although it may have been better practice for the judge to hold off until the hearing
date was closer before dismissing, I disagree that, under these facts, the judge was required
to issue another order to show cause or travel to the hearing site and await Patsy's attendance
(or nonattendance) before dismissing this case. If he wished to proceed with his complaint,
Mr. Patsy has been given more than enough opportunities to make that intention clear.

1939

Distribution
Randall Patsy
~.D. #1, Box 290
East Brady, PA 16028
Ms. Susan Mackalica
Bi3 B Minin~ Company , Inc .
R.D . Ill
West Sunbury, PA 16061
Administrative La~ Judge Jerold Feldman
Federal Nine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1940

ADMINISTRATIVE LAW JUDGE DECISIONS

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

SEP 1 2 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
WILLIAM KACZMARCZYK,
Complainant

.
:

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. PENN 94-417-D
WILK CD 94-01
Ellangowan Refuse Bank No. 45

v.

READING ANTHRACITE COMPANY,
Respondent

.

ORDER OF TEMPORARY REINSTATEMENT

Appearances:

Stephen D. Turow, Esq., Office of the Solicitor,
U. s. Department of Labor, Arlington, Virginia,
for Complainant;
Martin J. Cerullo, Esq., Frumkin, Shralow &
Cerullo, P. c., Pottsville, Pennsylvania, for
Respondent.

Before:

Judge Amchan
Factual Background

William Kaczmarczyk began working for Respondent, Reading
Anthracite Company, in December 1976 (Tr. 21-22). He became an
electrician with the company in 1985, working at the St. Nicholas
Breaker and the Ellangowan Refuse Bank (Tr. 23-25). In .
October 1989, Kaczmarczyk injured his back while moving a 300pound motor with a bar (Tr. 43). He was on workers' compensation
from October 1989 to January 1992, except for a 4 1/2 week period
in February 1991, when he unsuccessfully tried to return to work
(Tr. 46-49). On January 8, 1992, after undergoing a cervical
spinal fusion four months earlier, Kaczmarczyk returneq to work
on light duty (Tr. 49).
complainant worked on .light duty from January 8, 1992 .u ntil
October 15, 1993, when he was placed back on workers•
compensation status {Tr . 52-53). During this period, he had two

1941

7-day absences due to recurrence of back pain in July and
November 1992, and a number of shorter absences (Tr. 54-56, 13334) .
Kaczmarczyk is the treasurer of Local 7226 of the United
Mine Workers of America (UMW or:· UMWA) ·• · He is also · a mine
committeeman and safetyman for his local·, which represents
Respondent's employees at the st. Nicholas Breaker (Tr. - 33-35).
Another UMWA local, # 807, represents employees at the Ellangowan
refuse bank (Tr. 34). 1
Complainant served as employee walkaround representative for
an MSHA electrical inspection that was conducted on October 4,
12, and 14, 1993, at the Ellangowan Refuse Bank (Tr. 105-08). on
the last day of the inspection, Respondent's safety director,
David Wolfe, questioned the need for Mr. Kaczmarczyk's presence
during the inspection since Michael Ploxa, President of Local
807, was also serving as a walkaround representative (Tr. 107-13,
268-69).
The next day, October 15, 1993, Complainant was informed
that he was being put back on workers' compensation (Tr. 52-53,
122-23). He alleges that this was done in retaliation for his
activities as walkaround representative during the October 1993
inspection, which resulted in nine citations being issued to
Respondent (Exhibit B to the Secretary of Labor's Application for
Temporary Reinstatement).
Respondent contends that Complainant's return to workers'
compensation status was non-retaliatory. Safety Director,
David Wolfe, testified that an October 12, 1993, telephone call
from nurse Andrea Antolick, informing him that Complainant
refused to perform the activities of a functional capacity
evaluation (FCE) on September 30, 1993, precipitated a decision
on October 14, to return Kaczmarczyk to compensation status (Tr.
254-55, 311-16) 2 • Respondent also contends that recurring
reports from supervisors that Mr. Kaczmarczyk was not performing
assigned duties led to this decision (Tr. 350).

1

Complainant performed electrical work at Ellangowan
(Tr. 27-28). Local 807 does not represent any electricians (Tr.
173).
2

A later report, not in Respondent's possession on
October 15, 1993, stated that Mr. Kaczmarczyk completed 2 hours
of testing. He did not complete the evaluation because he
requested that testing be terminated due to increased pain and
.b lurred vision (Tr. 314-15, Exh. R-11).

194 2

Evaluation of the Evidence
Pursuant to the procedural rules of the Commission,
29 C.F.R.§ 2700.45(d), the issue in a temporary reinstatement
hearing is limited to whether the miner's complaint was
frivolously brought. The Secretary of Labor has the burden of
proving that the complaint was not frivolous. Although . section
105(c)(2) of the Statute and the Commission's rules indicate that
it is frivolousness of the miner's complaint that is scrutinized
in a temporary reinstatement proceeding, the legislative history
of the Act and relevant case law indicates that it is the
Secretary's decision to seek temporary reinstatement that is to
be examined. Senate Report 95-181, 95th Cong., 1st Sess. (1977)
at 36; Jim Walter Resources, Inc. v. Federal Mine Safety and
Health Review Commission, 920 F.2d 738, 747 (11th Cir. 1990).
The legislative history of the Act provides that the
Secretary shall seek temporary reinstatement "[u]pon determining
that the complaint appears to have merit." The Eleventh Circuit
in Jim Walter Resources, Inc. v. FMSHRC. supra, concluded that
"not frivolously brought" is indistinguishable from the
"reasonable cause to believe" standard under the whistleblower
provisions of the Surface Transportation Assistance Act
920 F.2d 738, at 747. Further, that court equates "reasonable
cause to believe" · with a criteria of "not insubstantial or
frivolous" and "not clearly without merit" 920 F.2d 738, at 747
and n. 9. I am ordering the temporary reinstatement of
Mr. Kaczmarczyk because I conclude that the Secretary's decision
is not frivolous and that it is possible, although far from
certain, that the Secretary could prevail in a discrimination
proceeding.
The timing of Mr. Kaczmarczyk's return to worker
compensation status, one day after his protected activities as an
employee walkaround representative does provide some basis for
concluding that the two events are related. Donovan v. Stafford
Construction Co •• 732 F.2d 954, 960 (D. c. cir. 1984); Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2511 (November 1981).
However, the nexus between these two events is rather weak.
Although the October 1993 MSHA electrical inspection was
initiated by an employee complaint, Kaczmarczyk did not file the
complaint (Tr. 97-98/ 178).
3

Although Foreman Vince Devine asked Kaczmarczyk who made
the complaint that led to the October inspection, Kaczmarczyk
told Devine it was not him (Tr. 100-105). There is no reason to
believe Devine suspected it was Kaczmarczyk who complained about
the presence of water near electrical components in the steam
genny house (Tr. 16-17, 178-79). Devine was present during the
inspection in which this concern was raised and Kaczmarczyk was
not (Tr. 97, Secretary's exhibit 2).

1943

Additionally, there is nothing in this record to suggest
that anything that Mr. Kaczmarczyk did as walkaround
representative on October 4, 12, and 14, 1993, aroused
Respondent's ire. Although Respondent received nine citations as
a result of this inspection, there is no indication tha~
Complainant's conduct as a walkaround representative was
responsible for any of these citations or that his acts. or
omissions as an employee of Respondent were in any way contributing factors to the citations (Tr. 277, 301).
In
summary, there is virtually nothing in the record to indicate
that Respondent would have any reason to retaliate against
Complainant for ·his role in the October 1993 inspection.
Nevertheless, there is sufficient evidence suggesting
generalized animus towards Kaczmarczyk's safety activities to
meet the "not frivolous" standard in drawing a connection between
these activities and his return to workers' compensation status.
Mr. Wolfe was not happy to see Kaczmarczyk participating in the
inspection on October 14, 1993, and challenged the necessity of
his presence. In view of the fact that Michael Ploxa, President
of UMWA Local 807, was also acting as employee walkaround
representative, and the fact that other electricians were
available, Wolfe considered Kaczmarczyk's participation
unnecessary (Tr. 175-76, 308).
Moreover, despite Respondent's contention that the
October 1993 citations gave it no reason to retaliate against
Mr. Kaczmarczyk, the record does provide a basis for inferring
that the cumulative effect of MSHA inspections at the mine did
create a degree of animus towards Complainant, which was perhaps
rekindled by the October 1993 citations. Respondent contends
that MSHA inspections and citations are common occurrences at its
mine and that the October 1993 inspection was nothing out of the
ordinary (Tr. 258-260).
Nevertheless, something about Respondent's MSHA experience
was clearly bothering Safety Director Wolfe when he participated
in a grievance proceeding with Kaczmarczyk on October 18, 1993,
concerning the latter's return to worker's compensation status.
It is uncontroverted that~Wolfe and Kaczmarczyk got into a heated
argument over the reasons~for this personnel action. It is also
undisputed that during this argument Wolfe went into another
room, obtained a stack of MSHA citations issued to Respondent
and threw, or placed them on the table (Tr. 128-29, 191-93, 27475, 283-93).
According to Kaczmarczyk and Jay Berger, the UMWA district
representative at the grievance proceeding, Wolfe said \something
to the effect that these citations were another reason;why
Kaczmarczyk was being placed on compensation (Tr. 128-29, 19193). Wolfe's testimony is that the citations he placed on the
table were issued in August 1992 and were largely the fault of

1 9 44

Mr. Kaczmarczyk (Tr. 274-278). Wolfe testified that he put the
citations on the table "out of frustration (Tr. 275)," and to
emphasize that Respondent would not get as many citations as it
was rece i ving if all its employees were capable of do~ng their
jobs (Tr • 27 4-7 5) 4 •
At a minimum, the record in this regard is inconsistent with
Respondent' s contention that it received the October 1993
citations with an air of equanimity 5 • The anger displayed at
the October 18, 199 3 grievance meeting with regard to MSHA
activity, coupled with Mr. Wolfe's lack of enthusiasm for Mr.
Kaczmarczyk's presence at the inspection of October 14, makes it
impossible to reject out of hand the Secretary of Labor's
assertions of safety-related animus towards Complainant.
Evidence tending to rebut retaliation
Given the evidence above, I find that it is conceivable that
the Secretary of Labor could establish a prima f acie case of
retaliation in a discrimination proceeding. In such a pro·ceeding
the Secretary would have to establish 1) that Mr. Kaczmarczyk
engaged in protected activity, and 2) that his return to workers'
compensation was ~otivated in part by the protected activity.
Sec. ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786
(October 1980), rev'd on other grounds sub nom. consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981) 6 •
A mine operator may rebut the prima f acie case by showing
that no protected activity occurred, or that the adverse action
was in no part motivated . by the protected activity. The operator

4

If Wolfe said, as Kaczmarczyk and Berger testified, that
citations were part of the reason Kaczmarczyk was returned to
workers' compensation, it is difficult to understand how the
August 1992 citations would have led Respondent to effectuate
this transfer 14 months later. Even accepting Wolfe's version,
it is hard to grasp how August 1992 citations would be in any way
relevant to Kaczmarczyk's ability to perform light duty work in
October 1993.
5

The October 1993 inspection was apparently the first time
Respondent received as many as nine citations from an MSHA
electrical inspection (Tr. 186).
6

Although Respondent may not be required to provide light
duty work to its employees, and may be entitled to trarisfer its
employees from light duty to workers' compensation for :a variety
of reasons, Section lOS(c) of the Federal Mine Safety and Health
Act prohibits such a transfer if it is done in retaliation for
activities protected by the Act.

1945

may also def end by proving that it would have taken the adverse
action for the unprotected activities alone.
Respondent's position is that Mr. Kaczmarczyk's return to
compensation status was the result of a non-discriminat~ry
application of its light-duty program. The decision to return
complainant to compensation was made by General Manager
Frank Derrick, in consultation with Safety Manager David Wolfe
(Tr. 338, 344, 349-50).
While both Wolfe and Derrick point to a number of instances
in which Kaczmarczyk was unable to do work assigned to him while
on light duty, they are able to conclusively establish only one
which occurred in the two and a half months prior to the decision
to return him to compensation (Tr. 66-67, 75-76, 203, 238, 322).
· The record indicates that Complainant had been unable to do job
assignments throughout his 21 months on light duty and does not
conclusively establish non-retaliatory reasons for which the
company made an issue of Kaczmarczyk's restricted abilities in
October 1993. Indeed, the record indicates that Complainant was
unable to do much more work in 1992 and during the previous
winter than in the fall of 1993 {Tr. 222-23).
Safety Director Wolfe does explain the timing of
Complainant's return to compensation status as being due to the
receipt of information on October 12, 1993, that Kaczmarczyk
refused to take a functional capacity examination (FCE) on
September 30, 1993 (Tr. 253-55, Exh. R-10). This is an event
that may ultimately provide a basis for concluding that the
Respondent transferred complainant to compensation status for
non-retaliatory reasons. However, I conclude that the evidence
in this regard is not so overwhelming that it makes the
Secretary's case "frivolous."
First of all, Mr. Derrick's testimony indicates that
Kaczmarczyk's alleged refusal to take the FCE had little to do
with Respondent's decision to put him back on workers'
compensation (Tr. 349-50). Derrick characterized that
information as "coincidental" to his decision {Tr. 350).
Secondly, the Secretary has raised a legitimate issue regarding
the extremely rapid response of Mr. Wolfe to this information
(Tr. 311-316).
The record shows that Mr. Wolfe received a call from nurse
Antolick on October 12, reporting that Kaczmarczyk had refused to
take the test {Tr. 311). Although Wolfe knew that Antolick had
no first hand information regarding the FCE on September 30, he
took her account at face value without checking the faats with
either Complainant or the persons who actually administered the
test (Tr. 312-16). Similarly, although Antolick suggested a
meeting with Mr. Wolfe, the safety director acted upon the
October 12 phone call without such a meeting (Tr. 313).

1946

Given the proximity in time to Complainant's protected
activities, the Secretary's counsel's posed the following
question which is not satisfactorily answered by Respondent.
"What was the hurry after 21 months of him being on light-duty
work? (Tr. 313)" The absence of a fully satisfactory answer
contributes to my conclusion that the Secretary's decision to
seek temporary reinstatement is "not frivolous."
Conclusion
Having concluded that the Secretary of Labor has met his
burden of proving that his decision to seek temporary
reinstatement is "not frivolous," I reiterate that the record a t
this point indicates that Complainant's discrimination case is
not well-supported. The e vidence of animus towards Complainant' s
protec ted a c tivities, although present, is very weak. There is
considerable support for the proposition that Res ponde nt's l i ghtduty program was admini s tered in a non-discriminatory way in
Kac zmarczyk's c ase (Tr. 24 6 , 264-66 , 336-37, 354-57).
Moreover, General Manager Derrick's testimony that
Complainant was put back on compensation because he was doing
less than he was capable of doing is corroborated by other
evidence in this record (Tr. 346-47, Exhs. R-6, R-10, R-11). One
issue that the Secretary must address in the discrimination
proceeding on this complaint is the duration of Respondent's
obligation to keep Mr. Kac zmarczyk on light duty, if I rule in
his favor.
In light of the relative weakness of the Secretary's case, I
order temporary reinstatement with the condition that the
Secretary either file a discrimination complaint within 60 days
of this decision or provide compelling evidence why it is unable
to do so. Given the state of this record, it would be
inequitable to require Respondent to temporarily reinstate
Complainant for an indefinite period.
Finally, as the purpose of temporary reinstatement is to
render the complainant financially secure during the pendency of
his discrimination case, Respondent may satisfy this order
through the means of "economic reinstatement," Senate Report 95181, 95th Cong., 1st Sess. (1977) at 37, reprinted in the
Legislative History of the Federal Mine Safety and Health Act of ·
1977, at page 625. Mr. Kaczmarczyk's position, including
financial compensation and benefits, must be no worse than it
would be had he not been placed on compensation status on
October 18, 1993 7 •
7

Respondent could not, for example, recall Complainant to
work and require him to perform tasks which he is incapable of
doing.

19 4 7

ORDER

I hereby ORDER Respondent to reinstate William Kaczmarczyk
immediately. The Secretary of Labor is ordered to file a
discrimination complaint within 60 days of this deeisiop.

(}J{;~
Administrative Law Judge
703-756-6210
Distribution:
Martin J. Cerullo, Esq., Frumkin, Shralow & Cerullo, P. c.,
Second Street & Laurel Blvd., P. O. Box 500, Pottsville, PA 17901
{Certified Mail)
Stephen D. Turow, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
{Certified Mail)
/jf

194 8

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

SEP 1 5 1994
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 93-410
A. C. No. 15-14959-03548

v.
Docket No. KENT 93-550
A. C. No. 15-14959-03549

BROKEN HILL MINING COMPANY, INC.,
Respondent

Docket No. KENT 93-633
A. C. No. 15-14959-03550
Mine No. 3
Docket No. KENT 93-634
A. C. No. 15-15637-03547
Mine No. 1
DECISION APPROVING SETTLEMENT
Before:

Judge Weisberger

These cases are 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). Petitioner has filed a Joint
Motion to Approve a Settlement agreement and to dismiss the case.
A reduction in penalty from $1659 to $1496 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.
WHEREFORE, the Motion for Approval of Settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $1496 .within
30 days of this Order.

JR LL--~

Avram Weisberger
Administrative Law Judge

1949

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. Hobart Anderson, President, Broken Hill Mining Company,
P.O. Box 989, Ashland, KY 41105 (Certified Mail)
/efw

1950

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

SEP 1 6 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
DONALD L. GREGORY,

DISCRIMINATION PROCEEDINGS

LOY D. PETERS,

Docket No. WEST 92-280-D

LOY D. PETERS,

Docket No. WEST 93-204-D

LOY D. PETERS,
DONALD L. GREGORY,
AND DARRYL ANDERSON,

Docket No. WEST 94-392-D

Docket No. WEST 92-279-D

Complainant,
v.
THUNDER BASIN COAL COMPANY,
Respondent

Black Thunder Mine

DECISION APPROVING SETTLEMENT

The parties have filed a stipulation of settlement resolving
all of the above-sty.led discrimination complaints filed under
§ 105(c) of the Act.
I have reviewed the stipulation and
conclude that it is consistent with the purposes of§ lOS(c).
Therefore, it is ORDERED:
1) that within 20 days of this order Respondent tender
to Loy Peters, Donald Gregory and Darryl Anderson all
sums due under this agreement and the waiver and
release executed by the complainants and the Respondent
in accordance with the terms thereof;
2) Upon receipt of the sums noted above complainants
waive permanent reinstatement and resign from their
temporary positions;
3) Respondent shall expunge from the employment record
of each complainant any adverse references to their

1951

discharge . or any matter surrounding the walkaround
designation or the reduction in force at Thunder Basin
Coal Company;
4) that within 30 days of this order Respondent shall
pay a civil penalty to MSHA in the amount of $7,500.

/l~~-~.~
~;-~-~chan

Administrative Law Judge
703-756-6210
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver,
5716 (Certified Mail)

co 80202-

Charles W. Newcom, Esq., SHERMAN & HOWARD, 633 17th St., Suite
3000, Denver, CO 80202 {Certified Mail)
Thomas F. Linn, Esq., Thunder Basin Coal Co., 555 17th St., Suite
2000, Denver, CO 80202 {Certified Mail)
/jf

1952

FEDERAL MrNE SAFETY AND HEALTH RBVrEW COMMrssroN
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

SEP 2 o 1994
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 93-39-M
A.C. No. 39-01377-05503

v.

North Pit

BOYER READY MIX SAND & ROCK,
INCORPORATED,
Respondent
DEcrsroN APPROVING SETTLEMENT APTER REMAND

Before:

Judqe cetti

On August 5, . 1994, the Commission remanded the above penalty
case to the unders·~gned to determine whether the Order of Default
issued June 28, 199·4, was warranted. Respondent in its request
for reconsideration alleged there had been on-going settlement
discussions with the attorneys representing the Secretary of
Labor and that he inadvertently neglected to respond to the show
cause order.
~he parties now have completed their settlement discussions
and have reached an amicable settlement of all issues. Petitioner on August 23, 1994, filed a motion to ·approve the settlement
agreement pursuant to 29 C.F.R. § 2700.31 and to order payment of
the amended proposed penalties in the sum of $2,938.00 within 40
days of the filing of an order approving settlement.

Under the proffered settlement there is a reduction of the
initial proposed penalties as follows:

Citation No.
3909396
3909398
3909400
3909401
3909402
3909403
3909404
3909405
3909406

· Initial
Proposed
Penalty
$

252.00
595.00
362.00
595.00
147.00
168.00
111.00
362.00
119.00
1953

Amended
Proposed
Penalty
$

200.00
400.00
290.00
475.00
115.00
134.00
89.00
290.00
50.00

3909407
3909408
3909409
3909411
3909412

168.00
119.00
102.00
2,816.00
252.00

50.00
95.00
50.00
500.00
200.00

TOTAL

$2,938.00

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.
WHEREFORE, the motion for approval of settlement is GRANTED;
and Respondent is ORDERED TO PAY to the Secretary of Labor the
approved civil penalties in the sum of $2,938.00 within 40 days
of this decision. Upon receipt of payment this case is
DISMISSED.

-(b;~t:' &/±
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
Bill B. Boyer, President, BOYER READY MIX SANO & ROCK, INC.,
Rural Route 2, Box 51A, Hawarden, IA 51023
sh

1954

FEDERAL MINE SAFETY Afi.D HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 2 3 1994.
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 94-54-M
A. C. No. 14-01467-05510
Portable No. 1

WALKER STONE COMPANY, INC.,
Respondent
DECISION

Appearances:

Before:

Tambra Leonard, Esq., Office of the Solicitor,
u. S. Department of Labor, Denver, Colorado,
for the Secretary;
Keith R. Henry, Esq., Weary, Davis, Henry,
Struebing & Troup, Junction city, Kansas, for
Respondent.

Judge Maurer

This proceeding concerns a proposal for assessment of a
civil penalty filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 820(a), seeking civil penalty
assessments for four alleged violations of certain mandatory
safety standards found in Part 56 of Title 30, Code of Federal
Regulations. An evidentiary hearing in these matters was held on
June 2, 1994, in Topeka, Kansas. Subsequently, both parties
filed proposed findings of fact and conclusions of law which I
have considered in making this decision.
STIPULA'?IONS

The parties have agreed to the following stipulation's , which
I accept (Tr. 4-5):
1. Walker Stone Company, Inc., is engaged in mining and
selling of stone in the United States, and its mining operations
affect interstate commerce.
2. Walker Stone company, Inc., is the owner and operator of
the Portable No. 1 Mine, MSHA ID No. 14-01467.
3. Walker Stone Company, Inc., is subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. sections 801 et seq. (the Act).

1955

4.
matter.

The administrative law judge has jurisdiction in this

5. The subject citations were properly served by a duly
authorized representative of the Secretary upon ari agent of
respondent on the dates and places stated therein and may be
admitted into evidence for the purpose of establishing their
issuance and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by respondent and the
Secretary are stipulated to be authentic, but no stipulation is
made as to the relevance or the truth of the matters asserted
therein.
7. The proposed penalty will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violations.
9. Walker Stone Company, Inc., is a small mine operator
with 94,437 hours worked in 1992.
FINDINGS AND CONCLUSIONS

Citation No. 4336867 was issued on June 21, 1993, by MSHA
Inspector Dean Williams, pursuant to section 104(a) of the Mine
Act and alleges a violation of the mandatory standard at
30 C.F.R. § 56.14132(b) (2) 1 :
The homemade wheel mounted device on the Wabco
haul truck, Company No. 359 AF, reportedly was utilized
as a reverse signal alarm. However, the bell type
device worked on both forward and reverse directions.
The device was not audible above the surrounding noise
level of the plant at the crusher and other areas to
attract attention of a person that may be in the area
when the truck was moving in a reverse direction.
Routine backing is required at the crusher feeder and
the pit loading area.
on this occasion, Inspector Williams, accompanied by an
inspector trainee, Curtis Dement, observed a Wabco haul truck,
which is a self-propelled piece of mobile equipment with an
1

/
30 C.F.R. § 56.14132(b) (2) provides as follows:
shall be audible above the surrounding noise level.

1956

Alarms

obstructed view to the rear. A backup alarm is required for this
vehicle and one was provided by the respondent.
One method of complying with 30 C.F.R. § 56.14132(b) is set
out in subsection (b) (1) (ii) as follows: "a wheel-mounted bell
alarm which sounds at least once for each three feet of reverse
movement."
Inspector Williams found such a home-made alarm device
mounted on one of the rear wheels of the truck.
In fact, a
similar device was also on the other rear wheel. It was
constructed out of a hollow metal canister sealed on both ends
and into which a metal ball had been placed. The sound is
created when the metal ball rolls from end to end of the metal
canister as the wheel rotates (forwards or backwards).
As a test, the inspector had the driver back the truck up so
he could determine if the sound coming from the device could be
heard above the surrounding noise level. Inspector Williams was
unable to hear anything from the back of the truck.
From the
side, he could only hear the alarm faintly over the noise of the
truck. However, the inspector admits he has some unquantified
hearing loss. Inspector Dement, who at the time was a trainee,
also testified.
H~ stated that he was present with Williams when
the truck was backed up for the test. He further testified that
he could hear it, but, in his opinion, it was not loud enough.
Mr. David S. Walker, the owner/operator of the Walker Stone
Company, also testified. He produced in court one of the backup
alarms that was constructed locally and attached to the rear
wheels of the truck as the inspector found it. These alarms were
originally installed on the truck in 1979 to abate a previous
citation. They have been on the truck since the summer of 1979,
and have passed muster with every MSHA inspector including
Inspector Williams until the citation at bar was issued in June
of 1993. Mr. Walker also testified that he could hear the alarm
over the surrounding noise and had done so numerous times over
the years while standing in the quarry.
My observation in the courtroom was that the device was of
substantial construction and quite loud. But of course I realize
the difference between sounding an alarm inside a courtroom
versus a noisy outside work environment, and therefore find
little relevance in the courtroom demonstration.
The only issue involved in this citation is whether or not
the alarm was audible above the surrounding noise level. It is a
very subjective standard. No specific "loudness" is required.

19 5 7

Was it audible? Two of the three witnesses say that they could
hear it, albeit Mr. Dement opined that it should have been
louder. The third, Inspector Williams, although hearing impaired
to some ex~ent, could hear it from the side, but not the back.
There is no specific standard beyond "audible above the
surrounding noise level."
My interpretation is that if the alarm meets that standard,
even if only "faintly," it still complies with the mandatory
standard and there is no violation. Citation No. 4336867 will
therefore be vacated herein.
Citation No. 4336871 was issued on June 21, 1993, by MSHA
Inspector Dean Williams, pursuant to section 104(a) of the Mine
Act and also alleges a violation of the mandatory standard found
at 30 C.F.R. § 5 6 .14132 (b) (2) and charges a s follows:
The automatic reverse activated signal alarm
provided on the Komatsu front-end loader was not
audible above the surrounding noise level. The alarm
could not be heard over the loader noise during loading
operations and would not attract attention to persons
that may be in the area when the loader was moving in a
reverse 4irection. The loader had an obstructed view
to the rear and routine backing was required while
loading trucks at the quarry pit.
Inspector Williams and Dement also observed a Komatsu frontend loader loading dump trucks on this same date. The Komatsu
front-end loader is a piece of mobile equipment that is selfpropelled and the operator has an obstructed view to the rear.
Approaching the vehicle they got to within 30 feet of it before
they could hear the sound of the reverse alarm (an electrical
type beeper) and then it was very weak. In their opinion, it was
not sufficiently audible to be heard over the surrounding noise
level by persons working in the area. However, they heard it.
As with the previous citation, there was a working backup
alarm that they cou·ld hear; it just was not loud enough in the
opinion of the inspectors. It is either audible or it is not
audible above the surrounding noise level. If it is not, its a
violation, if it is, it is not a violation because there is no
specific standard on the books beyond that. It is basic hornbook
law that the government must notify the operator what is required
in order to enforce a regulation against it.
Accordingly, Citation No. 4336871 will be vacated herein.

19 5 8

citation No. 4336873 was issued on June 22, 1993, by MSHA
Inspector Dean Williams, pursuant to section 104(a) of the Mine
Act and alleges a violation of the mandatory standard found at
30 C.F.R. §56.14132(a} 2 and charges as follows:
The service horn on the Wabco end dump truck, Company
No. 359 AF was not maintained in functional condition.
The horn is a safety feature on mobile equipment to
warn perso.n s in the area when the truck starting motion
and to attract attention of other equipment operators
to help prevent a collision. The truck was observed
hauling shotrock from the quarry pit to the primary
crusher.
The inspector found the horn inoperable, not functional .
Respondent stipulates that the said horn was not functional. The
standard states that the horn "shall be maintained in functional
condition." This clearly is a violation of the cited standard
and it will be affirmed. The proposed penalty of $50 will be
assessed.
With regard to its Wabco haul truck, respondent contends
that Citation No. 4336873 (service horn) and Citation No . 4336867
(back-up alarm) along with three unspecified others that were
issued in June of 1993, were multiplicative in nature.
Respondent implies at least that MSHA is simply running up the
citation count at his expense, when all that is actually involved
is the serviceability of a single vehicle. I note, however, that
the service horn and the back-up alarm are· on the vehicle to
address different hazards. The devices themselves are not
duplicative and therefore separate civil penalties are
appropriately assessed when both devices on one vehicle are not
working. In this particular case, however, this has become
somewhat of a moot point since I am going to vacate Citation
No. 4336867 in this decision.
Citation No. 4336878 was issued on June 22, 1993, by MSHA
Inspector Dean Williams, pursuant to section 104(a) of the Mine

2

30 C.F.R. S 56.14132(a} provides as follows:
Manually/
operated horns or other audible warning devices provided on
self-propelled mobile equipment as a safety feature shall be
maintained in functional condition.

1 95 9

Act and alleges a violation of the mandatory standard found at
30 C.F . R. § 56.93003 and charges as follows:
The elevated truck weight scales was not equipped
with a guard rail along the outer edge on the south
side. The travelway across the scales was
approximately 3 1/2 feet (1.1 meter) above ground level
and 35 feet long by 12 feet wide.
Williams and Dement also inspected the scale house . There
they observed the elevated truck weight scales. Trucks would
drive up onto the scales to be weighed. They observed that the re
was no berm or guardrail on the south edge of the elevated scales
as depicted in Exhibit No. P-3. The scale was approximately
12 feet wide and 35 feet long. The inspector determined that the
types of vehicles that would drive onto the scales would
generally range in width from 8 to 9 feet . Along the south edge,
a 3.5 foot vertical drop-off existed along the edge of the scale.
The inspector determined that the drop-off was of a sufficient
depth so that a vehicle would overturn if it went over the south
edge. There were concrete blocks bordering the scale, and
although the scale might sink a few inches when a truck drove
onto it, the distance between the scale and the concrete blocks
would not have .,kept a truck from going over the side. There was
also a hazard to a passenger of the truck alighting upon the
narrow area of the scale at the side of the truck. The inspector
determined that it was unlikely that the hazard would result in
an injury. However, he determined that if an injury did result
from the hazard, that the injury or illness that could be
reasonably expected would be lost workdays or restricted duty.
Accordingly, I find the violation to be proven by a
preponderance of the evidence in the record and the instant
citation will be affirmed. Upon consideration of the various
penalty assessment factors contained in section llO(i) of the
Mine Act, I find a penalty of $50 is proper and reasonable and
will be assessed herein.

3

/ 30 C . F.R. § 56.9300 provides, in pertinent part, as follows:
(a) Berms or guardrails shall be provided and maintained on the
banks of roadways where a drop-off exists of sufficient grade or
depth to cause a vehicle to overturn or endanger persons in
equipment.

1960

ORDER

1.

Citation Nos. 4336867 and 4336871 ARE VACATED.

2.

Citation Nos. 4336873 and 4336878 ARE APPXRMED.

3. Respondent SHALL PAY to the Secretary of Labor within
30 days from the date of issuance hereof the penalties hereinabove assessed in the total sum of $100.

Law Judge
Distribution:
Tambra Leonard, Esq., Office of the Solicitor, u. s. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, co 80294 (Certified Mail)
Keith R. Henry, Esq., Weary, Davis, Henry, Struebing & Troup,
819 Washington, P.. o. Box 187 , Junction city, KS 66441
(Certified Mail)
dcp

1~61

PBDBRAL llDIB SUBTY AllD BDLTJI RBVJ:BW COJOD:SSI:OB
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

SEP 2 6 1994

.

FELIX T. CARRASCO,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 94-40-DM

v.
SC MD 93-05
EDDY POTASH, INCORPORATED,
Respondent

Eddy Potash Mine
DECISION

Appearances:

E. Justin Pennington, Esq., Albuquerque,
New Mexico,
for Complainant;

w. T. Martin, Jr., Esq., Carlsbad, New Mexico
for Respondent.

Before:

Judqe Morris

This case is based on a discrimination complaint filed
pursuant to Section 105(c) of·the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 815(c), (the "Act").
After notice to the parties, a hearing commenced on August 9, 1994, in Carlsbad, New Mexico.
At the hearing the parties reached an amicable settlement.
Further, counsel recited the terms of the settlement and
both parties requested that the transcript of the hearing be
sealed and the case dismissed.
The Judge finds the settlement is in furtherance of the Mine
Act.
Accordingly, the transcript of the proceedings is hereby
sealed and the case is DISMISSED.

au.__

~~~n~
1962

Law Judge

Distribution:
E. Justin Pennington, Esq., 3700 Rio Grande Boulevard, NW, suite
2, Albuquerque, NM 87107-3042 {Certified Mail)
W.T. Martin, Jr., Esq., 509 West Pierce Street, P.O. Box 2168,
Carlsbad, NM 88221-2168 {Certified Mail)

sh

1963

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

SEP 2 7 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATI ON (MSHA} ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No . KENT 94-136
A. C. No. 15-16733-03555

v.

Docket No . KENT 94-146
A. C. No . 15-167 33-03556

MANALAPAN MINI NG COMPANY,
Respondent

Mine No. 7
Docket No. KENT 94-145
A. C. No. 15-16318-0358 6
Docket No . KENT 94-415
A. C. No . 15-16318-03588
Docket No . KENT 94-439
A. C. No. 15-16318-03589
Mine No . 6
Docket No . KENT 94-338
A. C. No. 15-05423-03746
:

Mine No. 1

DECISION APPROVING SETTLEMENT

Appearances:

Before :

Joseph B. Luckett, Esq . , Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for the Secretary;
Susan c. Lawson, Esq., Buttermore, Turner,
Lawson & Boggs, P . S . C., Harlan , Kentucky , for
Respondent.

Judge Maurer

These cases are 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). An evidentiary hearing in these
matters was convened on July 26, 1994, in London, Kentucky. At
that hearing, the parties filed a motion to approve a settlement
agreement and to dismiss these cases.

1964

The citations, initial assessments, and the proposed
settlement amounts are as follows:
CITATION NO.

PROPO&ED
ASSESSMENT

lROPOSID
SBTTLIKENT

KENT 94-338
4248498
4242272

$

903
903

$

903

so•

KENT 94-145
9885316
4257751
4257752
4257755
4257756
4257757
4257758
4039786
4039787
4039789
40397.90
40397'91

2384
690
690
690
690
690
690
267
288
690
690
793

1962
690
50*
50*
50*
50*
50*
50
50
50*
50*
50*

267

50

309
309
506
362
362
309

309**
309**
506**
362**
362**
309**

1100
5800
903

1100
3480
903

8300

4150

$29,585

$15,945

KENT 94-415
2793770
KENT 94-136
4248460
4248461
4248463
4248464
4248465
4248466
KENT 94-146
4248425
4040098
4248496
KENT 94-439
3836067
TOTAL

*
**

Citation modified to delete "S&S" special findings.
Civil penalties already paid by respondent.

1965

I have considered the representations and documentation submitted
in these cases, and I conclude that the proffered settlement is
appropriate under the criteria set forth in section llO(i} of the
Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and respondent having paid $2157 of the penalty, it is ORDERED
that it pay the remaining sum of $13,788 within 30 days of this
order.

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor,
U. s. Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215
Richard D. Cohelia, Safety Director, Manalapan Mining Company,
Inc., P. o. Bo~ 311, Brookside, KY 40801-0311
Susan c. Lawson, Esq., Buttermore, Turner, Lawson & Boggs,
P.s.c., 111 South First Street, P. o. Box 935, Harlan, KY 408 310935

dcp

1966

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

SEP 2 7 1994
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 94-162-M
A. C. No. 02-02108-05517

v.
Docket No. WEST 94-271-M
A. C. No. 02-02108-05519 A

ELMER JAMES NICHOLSON,
EMPLOYED BY A-ROCK INC.,
Respondent

Gray Mountain Pit
DECISION

Appearances:

Susan Gillett, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California for Petitioner;
Gerald W. Nabours, Esq., Flagstaff, Arizona for
Res.p ondent.

Before:

Judge Weisberger
Statement of the case

These cases, consolidated for hearing, involve a Petition
for Assessment of Civil Penalty.seeking a civil penalty from
Elmer James Nicholson pursuant to Section llO(c) of the Federal
Mine Safety and Health Act of 1977 ("the Act"), and a Proposal
for Assessment of Civil penalty alleging a violation by A-Rock
Incorporated ("A-Rock") of 30 C.F.R. § 56.14101(a) (3). Also,
alleged is a violation of Section 104(b) of the Act. Pursuant
to notice, these cases were heard in Flagstaff, Arizona on
August 15, 1994. Respondent filed a Post Trial Memorandum on
September 16, 1994. On September 20, 1994, Petitioner filed a
Post-Trial Brief.
Findings of Fact and Discussion
1.

Whether A-Rock Incorporated is subject to the Act.

A-Rock Incorporated, operates the Gray Mountain Pit,
a sand and gravel operation, located in Coconino County,
Arizona. The material produced at the subject site is sold
intrastate, primarily to customers within 100 miles of the site.
Daryl Merick, A-Rock's general manager, indicated, in essence,
that he is not aware of any out of state suppliers who compete
with A-Rock. According to Merick, none of the materials
purchased from A-Rock are used outside the state of Arizona.
A-Rock argues, in essence, that it is not involved in interstate

196 7

commerce, and that its products and operations do not affect
commerce.
Section 4 of the Act provides that each mine " • • the
operations or products of which affect commerce," shall be
subject to the Act .
In Jerry Ike Harless Towing, Inc., and Harless, Inc., (16
FMSHRC 683 (April 11, 1994)), the Commission analyzed the scope
of the Commerce Clause of the Constitution as follows:
The Commerce Clause of the Constitution has been broadly
construed for over 50 years . Commercial activity that is
purely intrastate in character may be regulated by Congress
under the Commerce Clause, where the activity, combined with
like conduct by others similarly situated, affects commerce
among the states. Fry v. United States, 421 U. S. 542, 547
(1975); Wickard v. Filburn, 317 U.S. 111 (1942) (growing
wheat solely for consumption on the farm on which it is
grown affects interstate commerce) . Congress intended to
exercise its authority to regulate interstate commerce to
the "maximum extent feasible" when it enacted Section 4 of
the Mine Act. Marshall v. Kraynak, 604 F.2d 231, 232 (3d
Cir. 1979), cert. denied 444 U.S . 1014 (1980); United States
v. Lake, 985 F . 2d 265, 267-69 (6th Cir. 1993). In Lake, the
mine operator sold all its coal locally and purchased mining
supplies from a local dealer. 985 F.2d at 269. Nevertheless, the court held that the operator was engaged in
interstate commerce because "such small scale efforts, when
combined with others, could influence interstate coal
pricing and demand." Id. Harless, supra at 686.
The front-end loader at issue in these proceedings was built
outside the state of Arizona. Also, A-Rock has purchased parts
for its caterpillar equipment that have been produced outside
the United States. Further, A-Rock's products were used by a
customer in the construction of Highway No. 89 in Arizona. I
take administrative notice of the fact that Highway No. 89 goes
from Arizona to Montana. Based on these factors I find, under
the broad principles enunciated by the Commission Harless Towing,
supra, and based upon the authority of the Sixth Circuit in Lake,
supra, that A-Rock's operations did affect interstate commerce.
2.

Violation of 30 C.F.R. § 56.14101(a) (3)

On March 23, 1993, Pete Herrera, an MSHA inspector,
inspected the subject site. He observed a 950-B front-end loader
in the crushing area. Herrera asked the front-end loader
operator, Jerry Semallie, whether the brakes were operational,
and the latter said that they were not. Herrera asked Semallie

1968

to operate the loader in a forward direction, and gave a sign for
him to hit the brakes. According to Herrera, when the service
brakes were applied, the loader continued forward and "never
slowed down." (Tr. 32) . Semallie testified that when the brakes
are applied, initially there is some resistance, but the
resistance fades away. Herrera issued a citation alleging a
violation of 30 C.·F.R. § 56.14101(a) (3) which provides that "All
braking systems installed on the equipment shall be maintained in
functional condition." The testimony of Herrera regarding his
observation of the functioning of the service brakes on the
front-end loader was not impeached or contradicted. 1
Accordingly, based upon his testimony I find that A-Rock did
violate Section 56.1410l(a) (3), supra. 2
3.

Significant and Substantial

In normal operations the front-end loader is driven to
various areas on the site where it must come to a stop, and
either load or unload materials. In this aspect of its
operations, the loader must stop within dumping and loading
distances of stock piles of gravel, a hopper, and haul trucks.
Also, in normal operations, the loader travels down an incline
to the washer. .A ccording to Herrera, in normal operations

1

I also note that the violation was abated after the
hydraulic cylinders were rebuilt, and all disc pads and the
cylinders for the calipers were replaced.
2

In essence, it appears to be A-Rock's· position, inter
alia, that it has not been established that a violation of
Section 14103(a) (3) supra, occurred because Herrera did not
(1) test the brakes pursuant to 30 C.F.R. § 56.14101(b) (1) or
(2) give A-Rock the option, pursuant to Section 14101(b) (1)
supra, of removing the equipment from service.
While it is true that Herrera did not test the brakes in
spite of his conclusion that the service brake system did not
function as required, A-Rock is not relieved of its responsibilities to comply with Section 56 . 14101(a) supra. (ConcoWestern Stone Co., 13 FMSHRC 1908 (December 1991)) (Judge
Maurer)). To hold, as apparently being argued by A-Rock, that
Section 56.14101(a) is not violated in absence of proof that the
vehicle in question had been tested or removed pursuant to
Section 56.1410l(b), would render meaningless the plain language
of Section 56.1410l(a) which provides that the truck in question
"shall be equipped with a service brake system capable of
stopping and holding the equipment with its typical load on the
maximum grade of travel."

1969

Ferlin Huskie, the foreman at the site, "walks the area."
(Tr. 34).
Also, other vehicles are driven in the area.
In Mathies Coal Co., 6 FMSHRC 1 (January, 1984), the
Commission set forth the elements of a "significant and
substantial" violation as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to 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 reasonable serious
nature.
(6 FMSHRC, supra, at 3-4.)
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129
(August 1985), the Commission stated further as follows:
We have explained further that the third element of
the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984).
Considering the above guidelines set forth in U.S. Steel,
supra, and the fact that in normal operations the front-end
loader in issue operates on an incline, and must be able to stop
so as not to collide with other vehicles and equipment, I
conclude that the violation was significant and substantial.
4.

Unwarrantable Failure

In essence, Semallie indicated that the brakes on the
loader at issue had not been working for "probably" (Tr. 73) a
few months prior to March 23, when the vehicle was cited . He
indicated that he had told Ferlin Huskie, the foreman at the Gray
Mountain Pit, that the brakes were not working. Huskie confirmed
that Semallie had informed him about the condition of the brakes.
He indicated that the brakes had been bad for almost a month
prior to the time they were cited on March 23. Huskie indicated
that he did not have any authority to get the brakes fixed. He
indicated that approximately a month prior to the time the
vehicle was cited, he had informed Elmer James Nicholson, the
A-Rock superintendent, that the brakes were not in good
condition.

1970

In essence, Nicholson indicated that when the loader was
cited, in March 1993, he was aware that the brakes were not
working properly, and this had been a problem "for quite
sometime." (Tr. 108). He indicated that there were problems
with the brakes at various times over a period of months. He
indicated that he was not sure when he was informed about the
problems with the brakes. However, according to Nicholson,
when he was informed about the problems with the brakes, he
went to Brian Waghorn, the mechanic, "to do something about it."
(Tr. 112). Nicholson said that on "numerous occasions", Waghorn
worked on the cylinder that was leaking fuel, and the caliper.
(Tr. 123) . Nicholson indicated that he followed up with Waghorn
who indicated that the brakes were working "at that time."
(Tr. 113). Nicholson said that he thought the brakes were
in good repair. He indicated, in response to questioning by
A-Rock's counsel, that after he referred the matter to Waghorn,
he did not "hear again that there were any problems with the
brakes before March 23, 1993." (Tr. 119).
I find that A-Rock's agents knew, for about a month prior to
March 23, 1993, that there were problems with the brakes on the
loader. In spite of this knowledge, the loader was continued in
operation . Nicholson indicated that he thought that the brakes
were in good repqir, as he had referred the matter to the
mechanic, and followed up with him. However the mechanic,
Waghorn, did not testify. Nor were any repair records proffered
in evidence. It thus is not possible to make any findings
regarding any specific repairs that had been made to the brakes,
and when these repairs had been done. I find that the violation
herein resulted from A-Rock's aggravated conduct, and thus was
the result of its unwarrantable failure.
(See, Emery Mining
Corp., 9 FMSHRC 1997 (1987)).
5.

Violation of Section llO(c) of the Act

In Kenny Richardson, 3 FMSHRC 8 (1981), aff'd 689 F.2d 632
(6th Cir. 1982), cert. den., 461 U.S. 928 (1984), the Commission
reviewed the legislative history of the term "knowingly" as used
in Section 109(c) of the Federal Mine Safety and Health Act of
1969, whose exact language was continued in Section llO(c) of the
1977 Act, and held that the term means "knowing or having reason
to know," (Kenny Richardson, supra, at 16). Specifically, the
Commission stated as follows:
"If a person in a position to
protect employee safety and health fails to act on the basis of
information that gives him knowledge or reason to know of the
existence of a violative condition, he has acted knowingly and in
a manner contrary to the remedial nature of the statute." Kenny
Richardson, supra, at 16.

1971

I find that the record establishes that Huskie had informed
Nicholson approximately a month prior to the date the loader was
cited, regarding the problems with the brakes. I find
Nicholson .' s testimony inadequate to establish that, after he
became aware of the problems with the brakes, and prior to the
time the brakes were cited, he took action to have the brakes
repaired, and ensured that the brakes were repaired. Nor is
there any other evidence of record to establish the same. Hence,
I find that it has been established that Nicholson violated
Section llO{c) of the Act.
6.

Violation of Section 104(b) of the Act.

In the initial order issued to A-Rock, Herrera indicated
that termination of the cited condition was due March 26, 1993.
On August 26, 1993, MSHA inspector David F. Estrada, inspected
the front-end loader at issue. He observed that the parking
brake was defective, and could not hold the loader when stopped.
He issued an order under Section 104(b) of the Act which, as
pertinent, provides that if in a follow-up inspection it is found
"· . . that a violation described in a citation issued pursuant
to Subsection (a) has not been totally abated within the period
of time as originally fixed there or subsequently extended,
11
,
the inspector shall issue a withdrawal order.
The original order alleges that the "brakes" had not been
maintained in functional condition. Specifically, it alleges as
follows "the loader would not stop when tested on level ground."
The record supports a conclusion that the service brakes are a
different system from the parking brakes. The former are used to
stop the vehicle, and the lat'ter are used to hold a vehicle
stationary once it has come to a stop. According to Nicholson,
at some time subsequent to the issuance of the initial citation,
the hydraulic cylinders where rebuilt, and the discs, cylinders
for the calipers, and pads were all replaced. Estrada indicated
that he found the service brakes to be functioning when he
inspected the vehicle on August 26, 1993. Thus, I find that it
has not been established that, on August 26, 1993, when inspected
by Estrada, the violation described in the initial citation had
not been totally abated. Thus, I conclude the Section 104(b)
shall be dismissed.
7.

Penalty

I find that a penalty of $5,000 is appropriate for the
violation of 30 C.F.R. § 56.1410l{a) (3), and that a penalty of
$3,000 is appropriate for the violation by Nicholson of Section
llO(c) of the Act.

1 972

ORDER

It is Ordered as follows:
1.

Order No. 4124514 shall be dismissed.

2.

A-Rock, Incorporated shall, within thirty (30) days of
this decision, pay a civil penalty of $5,000 for the
violation of 30 C.F.R. § 56.14101(a) (3).

3.

Elmer James Nicholson shall pay a civil penalty of
$3,000 within thirty (30) days of this decision.

~

Avram Weisberger
Administrative Law Judge

Distribution:
Susan Gillett, Esq., Office of the Solicitor, U.S. Department of
Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 94105
(Certified Mail)
Gerald w. Nabours, Esq., 10 E. Dale Street, Flagstaff, AZ
(Certified Mail)
/efw

197 3

86001

OFFICE Of AmlUIISTRATIVE LAW .u>GES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIICE
FALLS CllJtCK, VIRGINIA 22041

SEP 2 8 1994
SECRETARY OF LABOR,
JIINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) I
Petitioner

v.

BOB & TOM COAL COMPANY, INC.,
Respondent

.. CIVIL PENALTY PROCEEDING
Docket No. KENT 94-116
.: A.
. C. No. 15-16927-03541
..: No. 6 Mine

DECISION
Appearances :

Mary Sue Taylor, Esq . , Office of the Solicitor,
U. S . Department of Labor, Nashville, Tennessee,
for the Petitioner.

Before :

Judge Barbour

In this proceeding the Secretary, on behalf of the Mine
Safety and Health Administration (MSHA) and pursuant to
Section 105 of the Federal Mine Safety and Health Act of 1977
(Mine Act or Act), filed a petition for assessment of civil
penalties against Bob & Tom Coal Company, Inc. (Bob & Tom). The
Secretary alleged that in eight instances the company violated
mandatory safety standards for underground coal mines. (The
standards are found in Title 30, Part 75 of the Code of Federal
Regulations (C.F.R.).) The Secretary further alleged that the
violations were significant and substantial (S&S) contributions
to mine safety hazards and that they occurred at Bob & Tom's
No . 6 Mine, an underground bituminous coal mine located in
Harlan County, Kentucky.
Joe Hensley, President of Bob & Tom, filed a timely answer
on the company's behalf in which the company challenged various
aspects of the Secretary's petition as it related to each alleged
v i olation. Following the issuance of a prehearing order and the
parties' responses thereto, the matter was noticed for hearing on
June 7, 1994, in Middlesboro, Kentucky.
The hearing was convened as scheduled and counsel for the
secretary entered her appearance. Ho person appeared on behalf
of Bob & Tom. (The notice of hearing dated April 19, 1994, was
.arved on Mr. Hensley by certified mail. The return receipt
indicates that it was received on April 25, 1994.)
At my request, counsel for the Secretary described her
contacts with the representatives of Bob & Tom. She stated
that during the week prior to the hearing she twice called
1974

Hensley and both times was told he was not in the office. She
left messages for Hensley to call her, but her calls were not
returned (Tr. 6-7).
The day prior to the heari ng, counsel received a telephone
call from David Williams, an engineer for Bob & Tom. Williams
told counsel that the "meeting" on June 7 would have to be
canceled . Counsel stated that she told Williams it was "probably
too late," that he should appear at the hearing and that if he
failed to appear the company could be defaulted (Tr. 7-8) .
Noting that the notice of the specific site for the hearing
had been sent by facsimile copy and by certified mail to the
parties on June 2 , 1994, I recessed the hearing while counsel
attempted to telephone a representative of the company (Tr. 9).
Forty five minutes later counsel reported that the person who
answered the telephone told her that neither Hensley nor Williams
would be at the mine office during the day. She also indicated
that she had checked with her office and that no messages had
been left for her there (Tr. 10-11). In addition, I too placed a
telephone call to my off ice and was advised that no one from the
company had called for me (Tr. 11) .
I stated that the Commission and the Secretary had gone
to considerable expense to prepare for the hearing and that a
party's unexplained failure to appear at a duly noticed hearing
indicated contempt for the Act in general and the Commission's
hearing process in particular . I further stated my belief that
such contumacious conduct undermined the ability of the Act to
provide miners with more effective protection against hazardous
conditions and practices. Finally, I requested that counsel
present her case in full so that I might have the benefit of a
complete record (Tr. 12-13).

THE NO. 6 MINE and BOB & TOM
Jim Langley, a coal mine inspector and accident investigator, testified that he conducted a regular inspection of the
No. 6 Mine on August 11, 1993. According to Langley, the mine
employed approximately 10 persons. Coal was mined with a
continuous mining machine on one section. The height of the
coal seam averaged 32 to 33 Inches. The mine is located above
the water table. Although Langley never detected methane at the
•ine, he believed others bad (Tr. 17-18).
Counsel for the Secretary •aintained that the company quit
aining under the name Bob & Tom, but that mining effectively
continued under the nuae of Day Branch coal Co•pany (Day Branch)
and that Hensley controlled both operations (Tr. 102). According
to counsel, the No. 6 Mine was renamed the Day Branch Ho. 10
Mine. It was one of several mines that Day Branch and Hensley
operated. ~

CITATION NO· 4040112
Citation No. 4040112, alleges a violation of 30 C.F.R.
I 75.400, and states that "float coal dust has been allowed to
accumulate inside the section power center.

The dust was black

in color and was present over the energized components of the
power center" (Exh. P-1). The citation also contains a find that

the alleged violation was S&S.
Langley stated that while inspecting the section power
center on August 25, 1993, he observed float coal dust inside the
power center and spread over the center's energized components
(Tr. 19). He viewed the dust through the power center's windows,
located on its sides. The dust was black, but he could not
determine its depth due to the covers on the equipment (Tr. 20).
The power center, which received 4160 volts of electricity, was
located approximately four crosscuts outby the face. ~
Langley considered the condition to be hazardous because
electrical arcs were created inside the power center when the
power to equipment was turned on or off. These arcs could have
ignited the coal dust (Tr. 21).
Because there was an ignition source in close proximity to
the coal dust, Langley believed it was reasonably likely a fire
could have occurred. It was not unusual for miners to work at
the power center and a fire would have exposed miners to the
dangers of flame, smoke and carbon monoxide, any of which hazards
could have resulted in serious injuries (Tr. 22-24).
The power center was examined weekly by mine management.
Because of the color of the accumulation, Langley believed that
the coal dust had been present on the power center for more than
one week and that the company examiner had passed it by (Tr. 25).

THE VIOI.ATIQN
Section 75.400 prohibits the existence of accumulations
of combustible materials. The commission bas held that a violative "accumulation" exists "where the quantity of combustible
materials is such that, in the judgment of the authorized
representative of the Secretary, it likely could cause a fire or
explosion if an ignition source were present." Old Ben Coal Co.,
2 PllSHRC 2806, 2808 (october 1980). In defining a prohibited
•accumulation" for section 75.400 purposes, the commission
explained that •some spillage of combustible aaterials may be
inevitable in mining operations. However, it is clear that those
of combustible materials which could cause or propaqate
a fire or explosion are what conqress intended to proscribe."
Old Ben coal co., 2 PllSHRC at 2808.

-•es

1976

Lanqley's testimony was clear. I find that the float coal
dust located on the electrical components in the interior of the
power center was such that it could have caused or propagated a
fire. In the judgement of the inspector, the quantity of the
dust in the immediate vicinity of electric arcs presented the
very real danger of an ignition as aininq progressed on the
•action. I accept this view and find that the violation existed
- charged.
S&S and GRAVITY

The test set forth by the Commission in Mathies Coal Co.,
FMSHRC 1, 3-4 (January 1994) for determining whether a violation is S&S in nature is well known and need not be repeated
here. I have concluded that a violation of the mandatory safety
atandard existed. Moreover, the evidence establishes a discrete
safety hazard in that the existence of the accumulation in the
vicinity of electric arcs subjected miners working at the power
center to the possibility of an ignition and to burn and
inhalation injuries arising therefrom. Fortunately, such
injuries did not occur, but they were reasonably likely. An
actual ignition source to ignite the coal dust was present and
would have continued to be present as mininq progressed and as
power was turned .on and off. Moreover, miners were required to
work in the immediate vicinity of the power center. Finally,
any such injuries would have been reasonably serious, if not
fatal. I conclude therefore that the violation was S&S.
6

The concept of gravity involves analysis of both the
potential hazard to miners anti the probability of the hazard
occurring. Here, the hazard was of burn injuries or of injury
due to the inhalation of smoke or carbon monoxide. Given the
conjunction of the accumulation and electrical arcing inside
the power center, the probability of an ignition was high.
This was a serious violation.
HEGLIGENCE
The accumulation was visually obvious. Langley could see
its extent and color through the side windows of the power
center. Further, I credit bis belief that the accumulation
existed for more than one week and consequently that it should
have been observed and cleaned up. Bob' Tom's failure · in this
regard was a sign of its lack of due care. I therefore conclude
the company was neqligent.
CITATION NO. 4040113
Citation No. 4040113, alleges a violation of 30 C.F.R.
I 75.1101, and states that "the section belt drive was not
provided with a deluge water spray system" (Exh. P-2). The

1977

citation also contains a finding that the alleged violation
was S&S in nature.
Langley testified that during his inspection be observed
that the section belt drive was not provided with a deluge
water spray system • . (However, there was a fire extinCJUisher
at the belt head (Tr. 31).) The purpose of the spray system is
to suppress belt fires. The sprays automatically turn on when
the system's sensors are activated by heat (Tr. 27).
Langley further testified that there was no evidence such
a system had ever been installed at the belt drive (Tr. 28).
Langley believed the belt drive was set up on August 13,
1993 and that the violation existed from that date.
Langley also observed loose coal and coal dust under the
belt and float coal dust on the belt. Indeed, the belt was
running in the coal and coal dust and Langley believed the
friction from the belt rubbing in the material could cause an
ignition (Tr. 29-30). The belt itself was dry (Tr. 31).
In Langley's view, the combustible material in the presence
of the ignition source, coupled with the lack of a deluge fire
suppression system, made it reasonably likely an accident would
have occurred, \~ accident that would have resulted in miners
being exposed to smoke and carbon monoxide as well as to possible
burn injuries (Tr. 35-36). Further, if the belt itself burned,
additional toxic fumes would have been liberated. liL_
Langley observed the conditions at 2:40 p.m. (Exh. P-2). He
cited the company for a violation of section 75.1101, and he gave
Bob & Tom slightly more than two and one half hours to abate the
violation. When Langley returned to the. mine on August 26, the
system had not been installed and no one was working to install
it (Tr. 33). The only reason offered for the failure to install
the spray system was that the section repairman had not gotten
around to it (Tr. 33). Therefore, Langley issued an order of
withdrawal closing the section belt (Exh. P-3, Tr. 33). Bob &
Tom abated the condition by installing a deluge water spray
system whose parts were taken from an old belt drive (Tr. 34).

THE YIOLATION
Section 75.1101, which reiterates section 3ll(f) of the
Act, 30 u.s.c. S 87l(f), states, in part, that "deluge-type
water sprays ••• or other no less effective means approved by
the secretary of controlling fire, shall be installed at main
and secondary belt-conveyor drives." Here, where the beltconvayor drive for the continuous haulage system did not have
a deluge-type water spray or any other system approved by the
Secretary, the violation existed as charged. au. Tr. 40-41.

1978

S&S and GBAVITY
As I have just found, there was a violation of the cited
•tandard. There also was a discrete safety hazard in that the
lack of a deluge-type fire suppression system at the belt drive,
together with the fact that the belt was running in coal and
coal dust and that there were accumulations of coal dust on the
belt and around the belt drive, meant that an ignition at the
belt drive was unlikely to be quickly extinguished. (Although
it is true that a fire extinguisher was located in the vicinity
of the belt drive, its immediate and therefore effective use
could not be a~sured because a miner was not present always at
the belt drive.) That a fire and injuries resulting therefrom
were reasonably likely is established by the fact that all of
the elements necessary for the potential hazard to come to
fruition were in place at or near the belt drive -- an ignition
source, combustible material, exposed miners and a lack an
automatic means to extinguish an ignition. Moreover, and as
Langley noted, any injuries resulting from an unextinguished
ignition, whether in the form of burns or the inhalation of
smoke or toxic gases, were likely to be of a reasonable serious
nature. The violation was s&s.

The violation also was serious in that the potential hazard
to miners was grave given the confluence of conditions at and
around the belt drive.
NEGLIGENCE
Negligence is the failure to exercise the care required
by the circumstances . Langley could see no evidence that a
deluge-type water spray system ever was installed. He noted
the condition on August 25. I accept his testimony that the
spray system had been missing for 12 days, that is, since the
belt drive had been set up (Tr. 28). The standard is clear as
to what is required. Bob & Tom had materials on hand necessary
for the spray system. Certainly, the operator knew the spray
system was missing, and its failure to have ·had one installed
signaled its failure to meet the required standard of care.
Bob & Tom was negligent.
CITATIQN NO· 4040114
Citation No. 4040114, alleges a violation of 30 C.F.R.
I 75.383(a), and states that "an up-to-date escapeway map was
not provided for the mine 001 section" (Exh. P-4). The citation
al•o contains a finding that the alleged violation was S&S in

nature.

Langley testified that a •ap showing the escapeways was
not present on the 001 Section (Tr. 41). The map is required

1979

in order to illustrate for miner s the way to the surface in the
event of a fire or of an explosion.
In Langley's opinion, if a fire occurred, miners were
likely to panic and forget the location of escapeways or become
disoriented by smoke and loose their way (Tr. 42) . Xndeed,
Langley discussed an accident where this very thing happened (Tr .
46).

The danger of miners being unable to find their way out
of the mine was aggravated by the fact that all of the self
rescuer devices required by the regulations were not present
on the section (Tr. 43-45). Miners who became lost in the
smoke could have perished because they could not have found
their way out in time (Tr. 48).
Langley cited the violation on August 25. He believed
the mine had been without a map since August 13, the date the
direction of mining on the section changed (Tr. 42) . Langley
also noted that there were several ignition sources on the
section, as well as loose coal in every entry and loose coal
and float coal dust along the beltline (Tr . 49-50).
Langley testified that all eight persons who worked on the
001 section would have been affected by the lack of the escapeway
aap. Given the fact that the map was missing and given the combustible materials on the section, Langley believed it reasonably
likely there would have been injuries or fatali ties in the event
of a fire (Tr. 51-52) .

THE VIOLATION
Section 75.383(a) states in part, "A map shall be posed i n
each working section • •• and shall show the designated escapeways
from the working section." Clearly, such a map was not present
on the 001 section, and I find the violation existed as charged.
S&S and GRAVITY
I also conclude the violation was S&S. Because I credit
Langley's testimony regarding the presence of ignition sources
and combustible coal and coal dust, I believe that a fire or
explosion was reasonably likely to have occurred had mining continued on the section . Further, I believe that Langley was
right when he stated that without a map ainers were likely to
panic and to lose their way in the smoke . Therefore, I find that
it was reasonably likely miners on the 001 section would have
llUffered serious injury or death due to the failure of the
operator to ensure the presence of the escapeways -P on the
working section.

1980

I find the violation was serious. As I have noted, the map
could have made the difference between life and death to miners
working underground.
NEGLIGENCE
The map was management's responsibility. There was ample
time to provide one. In failing to ensure its presence, aanage98Jlt failed to meet the standard of care required. I therefore
find the operator was negligent.
CITATION BO. 4040115
Citation No. 4040115, alleges a violation of 30 C.F.R.
§75.503, and states that "the S&S 482 scoop used on the mmu-001
section was not maintained in permissible condition because
an opening greater than .005 of an inch existed in the cover
of the starting box lid" (Exh. P-5). The citation also contains
a finding that the alleged violation was S&S in nature.
Langley explained that section 75.503 requires that
electric equipment operated on the section be maintained in permissible condition, which means that "equipment is maintained
in the condition t~ prevent an explosion or a fire" (Tr. 53).
To do this the electrical components of the equipment must be
kept relatively air tight so that methane does not seep into
the components. ~
Here, the bolts on the starting box of the scoop were
loose and there was a resulting gap in the box through which
methane could have entered. (Langley measured the gap with a
feeler gauge.) Once inside, methane could have been ignited
by the electric arcs in the starting box. Further, the scoop
was used in face areas, returns and old works, areas where
methane was likely to accumulate.
If methane had been ignited, Langley believed it was
reasonable to expect that the scoop operator would have received
first or second degree burns, or even have been killed (Tr. 56).
Moreover, a methane ignition could have effected the entire mine
in that an explosion could have been propagated by the dust put
into suspension by the force of the ignition. The explosion
would have traveled toward the surface, as the coal dust and
float coal dust along the beltline was ignited (Tr. 56-57). The
acoop was energized when it was observed by Langley (Tr. 57).

THE VIQLATION
Section 75.503 states, in part, that "the operator of each
coal mine shall maintain in permissible condition all electric
face equipment ••• which is taken into or used inby the last

open crosscut."

There is no question that the startinq box of

1981

the scoop contained a gap in excess of .005 inches. Likewise,
there is no dispute that such a gap was not permissible and was
in violation of section 75.503. Therefore, I find that the
violation existed as charged.
S&S and GRAVITY
This violation posed a likelihood of serious injury, even
of death, to miners. As Langley explained, methane could have
entered the scoop's starting compartment through the gap and
could have been ignited by an arc or spark within the box
(Tr. 53). That this likelihood was reasonable is established by
Langley's testimony that the scoop was operated in areas where
methane was likely to accumulate and that electric arcs occurred
within the starting box (Tr. 54.) Given Langley's uncontroverted
testimony, I conclude the violation was s&s.
The violation was serious. Not only did it pose the hazard
of a methane ignition, but, as Langley explained, given the
presence of the coal dust and float coal dust on the section and
along the belt, the ignition could have triggered an explosion
that could have effected the entire mine and all personnel in it,
whether or not they worked on the 001 section (Tr. 56-57).
NEGLIGENCE
Electric face equipment, such as the scoop, is required to
be maintained in permissible condition. It is the operator's
responsibility. The record·reveals no mitigating factors for
management's obvious failure to meet this standard of care.
Therefore, I conclude Bob & Tom was negligent.
CITATION NO. 4040116
Citation No. 4040116 alleges a violation of 30 C.F.R.
75.1719-l(e)(6), and states that "lights were not provided for
the 482 s & s Scoop used on llllllU-001" (Exh. P-6). The citation
also contains a finding- that the alleged violation was S&S in
nature.
§

Langley stated that, in addition to having a gap in excess
of .005 inches in the starting box, the scoop lacked lights
(Tr. 58). The only light the operator of the scoop had available was from his cap lamp (Tr. 59). There should have been
four lights on the scoop, two on the front and two on the back.
The front lights had been torn from the machine, and the rear
lights were not working (Tr. 64). If the lights had been
operating, they would have illuminated the periphery of the
acoop. The cap lamp did not (Tr. 60).
The scoop was used in 32 inch coal, and miners had to
crawl in the area. Because of the mining height, the scoop

1982

operator could not lift his or her head high enough over the
frame of the scoop to illuminate the area opposite the scoop
operator (the off side) (Tr. 63). Lights would have provided
the operator with visibility on the off side (Tr. 63) •.. The
•action foreman traveled in the area, as did those ainers
vboae job it was to hang ventilation curtain and take 11ethane
readings. Langley guessed that the scoop traveled at a •peed
of approximately six miles per hour (Tr. 60).
Given these factors, Langley believed that it was reasonably
likely the scoop operator would strike another miner (Tr. 61).
A factor making an accident even more likely given the lack of
lights was the noise made by the continuous mining machine and
the bridge conveyor. Langley stated that both created "a lot" of
noise and, if the scoop was in use in an entry adjacent to one
being mined, it would have been difficult for a miner working or
traveling in the vicinity of the scoop to hear the scoop (Tr. 6162). A miner hit by the scoop could have been crushed (Tr. 61).

THE VIOI.ATION
Section 75.1719-l(e)(6) states that unless the entire
working place is illuminated by stationary lighting equipment,
"luminaries shall be installed on each machine operated in a
working place." These lights are required to illuminate areas
both in front and in back of the machine. The testimony
establishes that the two front lights were not present on the
scoop and the two back lights were not working. Thus, front
luminaries were not installed as required and the area in back
of the machine was not illuminated as required. The violation
existed as charged.
S&S and GRAVITY
As Langley explained, the lack of proper illum.ination
contributed to the likelihood of a miner being struck by the
•coop. That this was reasonably likely to have happened and
could have resulted in an injury was made clear by the fact that
the area where the scoop was being operated was the very area
where the section foreman was required to travel and miners were
required to work. The scoop operator bad inadequate visibility,
especially on the off side, to see the foreman and miners. In
addition, the fact that the shuttle car was a massive piece of
equipment and traveled at speeds of up to six miles per made
it a virtual certainty that any person struck by the equipment
would have been seriously injured, if not killed outright.
'l'barefore, I conclude the violation was S&S.

The likelihood of an accident, coupled with the potential
for aerious injury or death, 1l8ant that this was a aerious
violation.

1983

QGLIGEHCE

It was management's duty to assure mining machinery was
11aintained in safe operating condition. The violation was
visually obvious. Management knew, or should have known, of
its existence. Operating the scoop in a condition that was
obviously hazardous to miners was indicative of manaqe.aent's
failure to meet the required standard of care. The company was
negligent.
CITATION NO. 4040118
citation No. 4040118, alleges a violation of 30 C.F.R.
75.1713-7(a)(l), and states that "adequate first-aid supplies
were not maintained on the surf ace area of this underground
mine" (Exh. P-7). The citation also contains a finding that
the alleged violation was S&S in nature.
§

Langley stated that the company bad three surface employees.
One miner watched the belt and two drove coal haulage trucks
(Tr. 65). In addition, all underground miners traveled on the
surface to and from the mine. Langley stated that no first aid
supplies were stored on the surface, not even a band-aid
(Tr. 66). Langley agreed that the missing supplies could be
described as "the basic stUf f that keeps you going until the
paramedics can get there" (Tr. 70). In the event of an injury
requiring a tourniquet, none would have been present, and there
were no splints for broken bones or blankets for shock victims
(Tr. 66-67).

THE VIOLATION
Section 75. 1713-7(a)(l) requires each operator to keep
specified first-aid equipment at the mine dispatcher's office
or other appropriate work areas on the surf ace and in close
proximity to the mine entry. As Langley indicated, among the
equipment specified are tourniquets, blankets · and splints. In
addition, such basic things as bandages and compresses also
are required. None of these items were present on the surface.
The violation existed as alleged.
S&S and GRAVITY
The violation was both S&S and serious. If an injury had
occurred, . .ans for treating it until professional help arrived
. . . lacking. Frequently, such stop-gap treatment is necessary
to prevent the aggravation of an injury, or even to save a
victia'a life. If normal mining operations had continued, it
1• likely that aooner or later a nner would have been injured.
When this happened, there was a reasonably likelihood that the
hazard contributed to -- lack of prompt and effective 8118rgency
medical treatment -- would have compounded the injury. Given the

1984

dangers inherent in mining, there is no doubt that the lack of
first-aid equipment presented a serious hazard to miners .
NEGLIGENCE
In failing to provide the required first-aid equiP.ent,
Bob ' Tom negligently failed to meet the standard of care
required of an operator.
CITATION NO. 4248441
Citation No. 4248441 alleges a violation of 30 C.F.R.
75.364(a)(l) and states that "the weekly examination of the
worked out areas inby where 1st right bas started mining off
the mains has not been conducted weekly" (Exh. P-8). The
citation also contains a finding that the alleged violation
was S&S in nature.
§

Langley stated the citation was issued for the failure to
examine on a weekly basis worked out areas of the mine. Langley
explained that mining operations had driven straight ahead for
approximately 6,000 feet when the decision was made to pull back
about 2, ooo feet and to mine in a new direction. Once mining
was started in the new direction, the old works were not examined
(Tr. 72-73). Langiey was sure they were not examined because
no dates, times or ·initials were recorded (Tr. 73-74). Also,
Langley asked the section foreman if he had conducted the
examinations and the foreman replied he "didn't have time" to do
them (Tr. 7 6 ) •
Failure to examine the worked out area could have lead
to accumulations of methane or of air with low oxygen content
(Tr. 74). Supplies had been left in the area -- an old belt
structure and roof bolting supplies -- and Langley feared that
a miner would take equipment into the old works to retrieve the
supplies, that the equipment would malfunction electrically and
accumulated methane would be ignited (Tr. 76). Indeed, Langley
testified that he was aware of ~ recent explosion at another
•ine caused in just this way, an explosion that killed two miners
(Tr. 77-78).
If there bad been a explosion, the heat and flames could
travel out of the old works and the accumulations of coal. and
coal dust along the belt line could have ignited. In this way,
the effects of the explosion could have traveled to the surface
(Tr. 79). Depending upon the extent of the explosion, one person
could have been affected (the person who went to the old works
for the supplies) or, all Jliners working underground could have
been affected. Any of those involved could have aUffered
injuries ranging from first or second degree burns to 8ll0ke
inhalation (Tr. 79).

1985

THE VIOLATION
Section 75.364(a)(1) requires that at least once every
aeven days a certified person examine unsealed, worked-out
areas aeasuring methane and oxygen concentrations. 30 C.F.R.
175.364(9) requires that such an examination be certified by the
examiner posting his or her initials, the date, and the time of
the examinations at enough locations to show the examination was
11ade. Clearly, the required weekly examinations were not made.
They were not certified as required and the section foreman
stated be was not doing them. Therefore, I conclude the
violation existed as charged.
S&S and GRAYITY

I agree with Langley that the violation was S&S. As he
explained, methane is present in the seam being mined and without the required weekly examination there was no way to know
if the methane was accumulating in the old works. The presence
of the belt structure and the roof bolting materials meant that
it was likely miners and equipment would return to the old works.
Indeed, Langley testified that the day before the violation was
cited the scoop had been driven into the old works to retrieve
part of the deluge water system from the old belt structure
(Tr. 76). I ~onclude therefore that there was a discrete safety
hazard in that methane could have accumulated undetected in the
old works. Further, the record establishes it was likely the
scoop would have been taken into the unexamined areas to retrieve
the supplies. (This was the same scoop that was not maintained
in permissible condition.) I therefore find it reasonably likely
that a potential ignition source would have been present in the
unexamined areas. In my view, the lack of the required examination, the possibility of methane accumulating in the old works,
coupled with the presence of a ready ignition source, made it
reasonably likely an ignition would occur. Moreover, first or
second degree burns are injuries of a reasonably serious nature,
as is smoke inhalation. I find therefore that the violation was
S&S.

Because of the likelihood of an accident and the injuries it
could have engendered, the violation also was serious.
BEGLXGEHCE
That the section foreman felt he did not have time to
conduct the examinations is no excuse. If, in fact, he was too
busy to examine the area, Bob & Tom was required to make sure
another certified person did. compliance is the operator's duty,
and here the operator failed in that regard~ The coapany was
negligent.

1986

CITATIQN NO. 4248555
Citation No. 4248555 alleges a violation of 30 C.F.R.

I 75.400 and states that "loose coal had been allowed to
accumulate in the Nos. 1, 2 ' 3 rooms of 001 section in depths

up to 6 inches for a distance of approximately 80 feet from
tbe faces outby." The citation also contains a finding that
tbe alleged violation was s's in nature.

MSHA coal mine inspector Roger Pace testified that during an
inspection of the No. 6 Mine he observed accumulated loose coal
in three entries that had been driven to the face. According
to Pace, the accumulated material extended outby for 80 feet.
(Pace's inspection occurred nearly a month before Langley's.)
Pace measured the depth of the accumulations with a ruler and
found that the coal measured up to six inches deep (Tr. 85-87).
There was coal dust as well, and it was dry and black (Tr. 87).
In Pace's opinion the accumulations were the result of
spillage along the bridges of the continuous haulage system.
R._
Given the extent of the coal and coal dust, Pace believed
it had been accumulating for approximately three shifts (Tr. 88,
99). No one was working to clean up the accumulations when
they were observed\ by Pace. Indeed, the section foreman told
Pace that he only had seven miners working on the section and
because he was short handed there was no one to spare for clean
up duties. As Pace put it, "production comes first to them"
(Tr. 98). Cleanup began only after Pace advised the section
foeman that he, Pace, was tssuing a citation for a violation
of section 75.400 (Tr. 91-92).
With regard to the hazard presented by the accumulations,
Pace believed it was likely they would catch fire. Be noted the
electrical equipment on the section and the fact that given the
aovement of the equipment and the wear and tear on the trailing
cables, an exposed conductor in one of the cables could have
resulted in an arc or spark, which, in turn, could have resulted
in a fire (Tr. 89-90). Although Pace did not inspect the cables,
he believed they tended to fray and to separate as they were
pulled around corners.
THE VIOLATION
As noted, the Commission has stated that Congress intended
to proscribe "those masses of combustible materials which could
cause or propagate a fire or explosion." Old een coal Co., 2
at 2808. Since accumulations are ·to some extent an inevitable
zeaUlt of the aining process, an operator is given a reasonable
a.ount of time to clean up the by-product of the aining cycle.
'l'bua, tbe length of time that combustible material i• present
is relevant in determining whether a particular acCUllUlation

1987

is prohibited.

utab Power & Light co. y. Secretarv of I,nbor,

951 F.2d 292, 295 (10th Cir. 1991) (n.11) .

Pace's testimony was not challenqed and I accept his
assessment that the accumulation of coal and coal dust on the
••ction could have been iqnited. As he testified, the coal
dust was black and it was dry. Moreover, the accUllUlations
1Mre lenqthy in that they extended outby from the face areas
for approximately 80 feet. I also accept his assessment that
the accumulations bad existed for approximately three shifts
and were not cleaned up with "reasonable promptness." Certainly,
it is no excuse that the section foreman found himself short
handed . I therefore conclude the violation existed as charqed.
S&S and GBAVITY
The Secretary bas not established the violation was S&S.
The Secretary's case founders on the third element of the
Matbies test -- the requirement that the Secretary prove "a
reasonable likelihood that the hazard contributed to will
result in an injury." Matbies Coal Co., 6 FMSHRC at 3-4.
Althouqh Pace testified that trailinq cables to electrical
equipment could constitute a potenti al iqnition source for
the accumulation, he did not inspect any of the cables to
determine whether they were defective or out of compliance
and he was unable to testify that any other equipment on the
section that was out of compliance.
For me to find that a fire or iqnition of the accumulations was reasonably likely, I would have to aqree with
what seems to be the thrust of the Secretary's case -- that
trailinq cables invariably become defective during the course
of continued normal mining operations. on the basis of this
record I am reluctant to make such an assumption. Aside from
testimony that the cables had no visible defects, nothing was
put on the record relating to the condition of the specific
cables involved; and I believe it would be unwarranted to
assume that they would inexorably deteriorate to the point
where they could iqnite accumulations. If this were the case,
one would assume the Secretary would require their replacement
on a regular basis.
'l'his said, I find that the potential hazard to the safety
of lliners was such that this was a serious violation. Pace was
juatifiably concerned about their fate if the accumulations
i911ited. 'l'he extent of the accu.ulations . .ant that any fire
and 8110ke and fuaes could have traveled up the entries and could
laave endangered not only the •action crew of •even but any other
persons in the aine . While this hazard was not ~onably likely
to coae to fruition, it could have happened and the potential for
injury or death was qreat.

1988

BEGLIGEffCE

I accept Pace's opinion that the accumulations existed for
up to three shifts. As I have noted, the fact that the section
foreman did not have a full crew was no excuse for failing to
clean up the accumulation with reasonable promptness. It is the
operator's duty to act to eliminate accumulations resulting from
the llining process. Bob & Tom negligently failed to do so.

OTHER CIVIL PENALTY CBITEBIA
HlSTQRY OF PREVIOUS VIOLATIONS

With regard to the operator's history of previous
violations, the Secretary submitted into evidence a computer
printout listing all violations assessed at the Day Branch mines
during the two years prior to the first violation in this case
(Exh. P-10). Counsel argued that in considering the operator's
history of previous violations I should take into account the
assessed violations at all of the operator's mines, rather than
those solely relating to Mine No. 6 (also known as Day Branch
No. 10 Mine). Counsel stated she believed there was Commission
precedent on this point and, at my request, indicated she would
submit a letter setting forth the relevant case law (Tr. 105106).
I did not receive further information from counsel, but I
agree with her to the extent that I conclude, in this particular
case, consideration of the previous history of all of the mines
of Day Branch is warranted.
First, and since there is no evidence ·to the contrary, I
accept counsel's assertion that although mining may have ceased
under the name of Bob & Tom, the operator continued to mine the
No. 6 Mine under the name of Day Branch (Tr. s, 102). I further
accept what appears to be the essence of the Secretary's
contention, that Bobby Joe Bensley, President of Bob & Tom, is
also significantly involved in th~ management of Day Branch and
represents the operator both for Bob & Tom and Day Branch.
Consideration of the history of previous violations in
civil penalty assessments is based upon a theory that attaches
punitive ~onsequences to noncompliance in an effort to encourage
future compliance. In general, I believe that where more than
one .U.ne is governed by the same entity, and where that entity
bas Jla!lagement control and responsibility over the conditions of
aucb .U.nes, compliance is furthered by considering past assessed
violations at all llines, rather than one. Of course, there may
be tiaes when limiting consideration of previous history to the
apecif ic lline in which the violations were cited better fosters
compliance, but no reasons for invoking such an exception to the
general rule are apparent in this record. Therefore, when I

1989

consider the history of previous violations in this case, I
will, as the Secretary requests, take account of violations
cited and assessed at all Day Branch mines.
During the 24 months prior to the date of the ~irat
violation in this case, a total of 808 violations were assessed.
This is a large history of previous violations. (I will analyze
the previous violations of the particular standards here involved
when I assess the individual civil penalties.)
Consideration of the operator's history of previous
violations also requires that I examine one additional factor
-- the operator's compliance history. Counsel stated, and
the computer print out confirms, that while $396,953 has been
assessed for violations occurring in the two years prior to the
first violation in this case, $25,219 has been paid (Tr. 105,
Exh . P-10). In response to my inquiry about the Secretary's
collection efforts, Counsel further stated, "The Secretary at
this time is talking to the Department of Justice about seeking
collection action against Mr. Hensley" (Tr. 105).
There is nothing in the record to explain why the operator
has ignored $371,734 in final civil penalty orders (i.e.,
penalties not, litigated). I can only assume that its decision
to play the scoff law arises from that same contempt for the
Mine Act and the Commission that lead to its failure to appear at
the hearing. In any event, the operator has amassed an extreme
number of delinquent civil penalties and a significantly large
debt to the government. As set forth below, I conclude this
warrants sizably higher penalties than would otherwise have been
appropriate. ~ Mav Besources Incorporated, 16 FMSHRC 170
(January 1994) (ALJ Fauver).
SIZE OF BUSINESS OF THE OPERATOR
The Secretary's proposed assessment sheet, which is in the
file and part of the record, indicates that the Secretary viewed
the mine, as well as the controlling entity of which the mine is
as part, as small in size (Proposed Assessment 2; Tr. 17-18).
Other things being equal, assessed penalties would have been
commensurate with this criterion. However, other things are not
equal, especially the operator's significantly large history of
previous violations and its exceedingly poor compliance history.
ABILITY TO CQNTINQE IN BUSIHESS
If an operator contends its ability to continue in business
will be impaired by the size of JmY penalties assess, it bears
the burden of proof. Here, the operator presented no proof vi th
regard to this criterion. (Indeed, the operator presented no
proof with regard to anything.) I conclude the penalties will
not affect its continuation in business.

1990

BAPID COMJ>LIAHCE
In no instance did the operator exhibit unusual expedition
in abating the violations, and in no instance, other than the
failure to install deluge-type water sprays on the aection belt
drives, did the operator fail to comply in a timely fashion.
Therefore, the penalties will be neither increased nor decreased
because of this criterion, except for the violation of aection
75.1101, where the operator's failure to timely abate will
warrant an increase in the penalty that would otherwise have
been assessed.
A$SESSMENT OF PENALTIES
CITATION NO.

DATE

30 C.F.R.§

4040112

8/25/93

75.400

The Secretary has proposed a penalty of $189. (The largest
penalty previously assessed for a violation of section 75.400 was
$2,500 (Exh. P-10).) Given the serious nature of the violation,
the negligence of the operator, the operator 1 s generally large
history of previous violations, its significant number of prior
violations of section 75.400 (66 in all) and, given its woeful
compliance record, I conclude a penalty significantly higher than
that proposed by the Secretary is warranted. Accordingly, I
assess a civil penalty of $5,000.
CITATION NO.

DATE

30 C.F.R.

4040113

8/25/93

75.1101

§

The Secretary has proposed a penalty of $851. (The largest
penalty previously assessed for a violation of section 75.1101
is $569 (Exh. P-10).) Given the serious nature of the violation,
which was augmented by the fact that the belt was running through
accumulations of coal and coal dust, and by the fact that smoke
and fumes from a fire would have traveled to the face, the negligence of the operator, the operator 1 s large history of previous
violations, the operator 1 s compliance record and the operator 1 s
lack of effort to achieve timely compliance with the cited
standard, I conclude a penalty significantly higher than that
proposed by the Secretary is warranted. Accordingly, I assess
a civil penalty of $5,500.
CITATION NO.
4040114

~

8/25/93

30 C.F.R.

§

75.383(a)

The Secretary has proposed a penalty of $309. (There are
no previously assessed violations of this standard.) Given the
serious nature of tbe violation, which was augmented by the fact

1991

that loose coal and coal dust and ignition sources were present
on the section, the negligence of the operator and the operator's
compliance record, I conclude a penalty significantly higher than
that proposed by the Secretary is warranted. Accordingly, I
assess a civil penalty of $3,500 •
CITATION NO.
4040115

.DAll

30 C.F.R.

8/25/93

75.503

§

The Secretary bas proposed a civil penalty of $189. (The
largest penalty previously assessed for a violation of section
75.503 is $1,019 (Exh. P-10).) Given the serious nature of the
violation, which was augmented by the presence of loose coal and
coal dust on the section, the negligence of the operator, the
fact that the operator's history of previous violations contains
40 assessed violations of section 75.503 and the operator's
compliance record, I conclude a penalty significantly higher
than that proposed by the Secretary is warranted. Accordingly,
I assess a civil penalty of $4,000.
CITATION NO.
4040116

~

8/25/93

30 C.F.R.

§

75.1719-l(e)(6)

The Secretary bas proposed a civil penalty of $189. (The
largest penalty previous assessed for a violation of section
75.1719-1 is $362.) Given the serious nature of the violation,
the negligence of the operator and the operator's compliance
record, I conclude a penalty significantly higher than that
proposed by the Secretary is warranted. Accordingly, I assess
a civil penalty of $4,000.
CITATION NO.
4040118

30 C.F.R.
8/26/93

§

75.1713-7(a)(l)

The Secretary has proposed a civil penalty of $189.
(There is one previous violation of section 75.1713-7 for
which $20 is assessed (Exh. P-10).) Given the serious nature
of the violation, the negligence of the operator and the
operator's record of compliance, I conclude a penal~y significantly higher than that proposed by the Secretary is warranted.
Accordingly, I assess a civil penalty of $3,500.
CITATION NO.
4248441

~

8/26/93

30 s;:.F.R.

§

75.364(a)(l)

The Secretary has proposed a civil penalty of $189.
(There were no assessed previous violations of this atandard
(Exh. P-10.) Given the serious nature of this violation, the

1992

neqliqence of the operator, which was particularly eqreqious in
view of the section foreman's self-proclaimed lack of time to
inspect the worked out areas, and qiven the operator's record of
compliance, I conclude a penalty siqnificantly higher than that
proposed by the Secretary is warranted. Accordingly, I assess a
civil penalty of $4,500.
CITATION NO.

.DAll

30 c.r.R. s

4248555

7/27/93

75 . 400

The Secretary has proposed a penalty of $431. (The largest
penalty previously assessed for a violation of section 75.400
is $2,500 (Exh . P-10).) The serious nature of the violation
is mitigated, to some extent, by the lack of proof of a ready
iqnition source. Given the operator's negligence, the fact that
the operator's relevant history of previous violations contains
66 assessed violations of section 75.400 and the operator's
compliance record, I conclude a penalty siqnificantly higher
than that proposed by the Secretary is warranted. Accordinqly,
I assess a civil penalty of $4,000.
QRDER

Within 30 days of the date of this Decision, the operator
shall pay civil penalties in the amount of $34,000. The
Secretary shall modify Citation No. 4248555 by deleting the
S&S desiqnation.

3t?U·dl:~:__
David F. Barbour
Administration Law Judge

Distribution:
Mary sue Taylor, Esq., Office of the Solicitor,

U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Bobby Joe Bensley, President, Bob & Tom coal company,
Inc., P.O. Box 204, Cawood, KY 40815 (Certified Mail)

\lb

1993

OFFICE Of AllUIUSTRATJVE LAW JUDGES

2 llCYLlll£, 10th FLOOR
5203 L£ESllltG PIKE
FALLS CllltCH, VIRGINIA 22041

SEP 2 8 199l
SECRETARY OF LABOR,
KINE SAFETY AND HEALTH
ADMJ:NISTRATION ( MSHA) I
Petitioner

.: CIVIL PENALTY PROCEEDING
: Docket No. KENT 94-520

CROCKETT COLLIERIES (KY) INC.,
Respondent

. Soladay Mine
.

:

v.

A.C. No. 15-15455-03542

DICISIOH APPRQYDfG SB'PJ'!PP"'

Appearances:

Before:

Joseph Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
·_ Joshua E. Santana, Esq., Brown, Bucalos, Santana
and Bratt, P.s.c., Lexington, Kentucky, for the
Respondent.
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 bearings,
Petitioner filed a motion to approve a settlement agree•ent and to dismiss the case. Vacation of Order No. 4245549,
deletion of the "significant and substantial" findings from
Order Nos. 3830240 and 4245405 and a reduction in penalty
from $26,700 to $9,000 was proposed. I have considered the
representations and documentation sul:)mitted in this case, and
I conclude that the proffered settlement is acceptable under
the criteria set forth in Section llO(i) of the Act.

7

WBBREFORE, the motion for approval of settl ment is
GRAMTBD, and it is ORDERED th t Res ndent pay a penalty of
$9,000 within 30 days of this

j Admin trative
Gary

lick

\

I

1994

...

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Joshua E. Santana , Esq . , Brown, Bucalos, Santana & Bratt,
P.S.C., 600 Lexington Building, 201 West Short St . ,
Lexington, KY 40507 (Certified Mail)
/lh

1995

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

SEP 2 8 199{
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. SE 94-21-M
A. C. No. 09-00265-05517
Junction city Mine

BROWN BROTHERS SAND CO.,
Respondent
DECISION

Appearances:

Michael K. Hagan, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia for
Petitioner;
Mr. Steve Brown, Partner, Brown Brothers Sand
Co., Howard, Georgia, Pro Se, for Respondent.

Before:

Judge Hodgdon

This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor against Brown Brothers
Sand Company pursuant to Sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § § 815 and 820. The
petition alleges nine violations of the Secretary's mandatory
health and safety standards and seeks civil penalties in the
amount of $597.00. For the reasons set forth below, I vacate one
citation, affirm the rest, while increasing the degree of
negligence on two of them, and assess penalties in the amount of
$1,036.00.
A hearing was held in this case on May 26, 1994, in Butler,
Georgia. Mine Safety and Health Administration (MSHA) inspectors
Steve c. Manis and Harry L. Verdier testified for the petitioner.
Messrs. Greg and Carl Brown testified on behalf of Brown
Brothers. The parties were offered the opportunity to file
briefs in this case; only the Secretary availed himself of the
opportunity. 1 I have considered the Secretary's Brief in my
disposition of this case.
By letter dated September 9, 1994, Mr. Steve Brown
stated, on behalf of the Respondent: "We do not know what you
want in this brief. We stated everything that we wanted to
during the hearing that you presided at . We do no have anything
new to add. Therefore we stand on our testimony at time of
hearing."
1996

St1MMARY OF THE EYIPENCE
MSHA inspector Steve c. Manis conducted an inspection of
Brown Brothers Sand company on August 11, 1993. He was
accompanied on the inspection by his supervisor,
Harry L. Verdier.
Before going on the inspection, Inspector Manis had received
a report from the MSHA Health and Safety Analysis Center that
Brown Brothers had not filed its quarterly report, MSHA Form
1000-2, for the first quarter of 1993. Both he and Inspector
Verdier had called "Denver" before August 11 to verify that the
report had n o t been received. Therefore, when they arrived at
the facility, Inspector Manis asked Greg Brown if a report had
been filed and if the company had their copy of it. Mr. Brown
indicated that he believed that one had been filed, but was
unable to locate the company's copy of the form. As a result,
Manis issued Citation No. 3604123 for a violation of Section
50.30(a) of the Secretary's Regulations, 30 C.F.R. § 50.JO(a).
(Pet. Ex. 3.) The violation was abated that afternoon when
Mr. Brown filled out another MSHA Form 7000-2 and gave it to the
inspector.
The inspectors next went to the shop where they found two
compressed and liquid gas ·cylinders standing with hoses,
regulators and torches attached to them. They were not chained
to the wall or by the wall, and they were not in a stand. When
this was discovered, Greg Brown placed them on their sides on the
ground.
Inspector Manis issued Citation No. 3604124 for a
violation of Section 56.16005 of the Regulations, 30 C.F.R.
S 56.16005. (Pet. Ex. 4.) The violation was abated later that
day by placing the cylinders in a storage rack and chaining them.
On leaving the shop and walking through the plant,
Inspector Manis observed that the cover for the electrical switch
box for the tank conveyor belt was off and lying on the ground.
He did not observe any repairs or testing being performed on the
switch box or the conveyor belt, nor was he informed that such
was the case. As a consequence, he issued Citation No. 3604125
alleging a violation of Section 56.12032, 30 C.F.R. S 56.12032.
(Pet. Ex. 5.) The breach was abated when Greg Brown picked up
the cover, knocked the sand out of it, and replaced it on the
switch box.

1997

The inspector believed that this situation was reasonably
likely to result in a fatal injury to at least one person because
"people do come in this. area and they could contact the inner
parts, electrical parts." (Tr. 32.) He stated there was "an
electrocution hazard if a person did come into contact with the
480 volts."
(Tr. 31.)
Inspector Verdier added that "this
particular box was mounted at about chest height on a piece of
board directly in a line going from the shop to a tunnel."
(Tr. 98.)
The inspection next proceeded to the concrete sand tunnel.
Inspector Manis found that the conveyor belt, which was next to a
walkway, did not have an emergency stop device and was not
guarded by railings. The inspector considered this to be a
violation of Section 56.14109, 30 C.F.R. § 56.14109, and issued
Citation No. 3604126. 2 (Pet. Ex. 6.) Brown Brothers abated the
violation by placing · a wire rope along the walkway, the length of
the conveyor belt.
Inspector Manis found the same deficiencies in the mortar
sand tunnel. He issued Citation No. 3604127 for a violation of
Section 56.14109. 3 (Pet. Ex. 7.) The violation was abated in
the same manner as the previous one.
At the mortar sand belt conveyor, Inspector Manis discovered
that the back section of the tail pulley guard had deteriorated
or "rotted out" to the point that it no longer guarded the
pulley. Consequently, the inspector issued Citation No. 3604128
for a violation of Section 56.14112(a) (1), 30 C.F.R. §
56.14112(a) (1).
(Pet. Ex. 8.) The violation was abated by
replacing the back section of the guard.

2

The citation, as written by the inspector, charged a
violation of Section 56.14109(a) and alleged that the violation
was "significant and substantial." The citation was subsequently
modified by the inspector to delete the "significant and
substantial" designation. It was amended at hearing, without
objection, to allege a violation of Section 56.14109.
(Tr. 912.)
3

This citation was also modified by the inspector and
amended at hearing. See fn. 1, supra.

1 998

On the barge on the primary side of the pit, the inspector
detected that the belts on the multi-V-belt drive for the sand
pump were not guarded. The unguarded belts were at the foot of
a stairway and to the left of the walkway. The belts were moving
rapidly at the time he observed them. As a result, Inspector
Manis issued Citation No. 3604129 for a violation of Section
56.14107(a), 30 C.F.R. § 56.14107(a).
(Pet. Ex. 9.) The
violation was later abated by placing a guard on the belts.
Inspector Manis considered that this violation was
reasonably likely to result in a permanently disabling injury
to at least one person. He came to this c onclusion bec aus e:
[ f)rom time to time this is a wet area. From time to
time because of the drive and lubrication there are
slippery conditions from grease and oil there. A
person could accidently, or he could back up into a
belt or he could fall and accidently stick his arm.
If he fell, his whole body could go into that drive.

A fatal . [sic) would occur there if he fell into
it. But if h~ just . . . it's more like an arm or
fingers could · be dismembered there very easily.
(Tr. 55.)
The next citation was issued when the inspector was in the
concrete sand tunnel. Near the middle of the tunnel he noticed
that several light bulbs were out. He concluded that there was
not sufficient illumination in the tunnel. Accordingly, he
issued Citation No. 3604130 for a violation of Section 56.17001,
30 C.F.R. § 56.17001.
(Pet. Ex. 10.) The citation was abated by
replacing the light bulbs.
The final citation in this case was issued at the multi-Vbelt drive. Inspector Manis determined that the front section of
the belt drive motor had openings that were not guarded, exposing
inside parts, armature, brushings and slip rings, to contact. He
issued Citation No. 3604131 for a violation of Section
56.14107(a).
(Pet. Ex. 11.) The violation was abated by· placing
a guard over the openings.

1 9 99

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Citation No. 3604123
Section 50.30(a) requires that "[e)ach operator of a mine in
which an individual worked during any day of a calendar quarter
shall complete a MSHA Form 7000-2 . • . and submit the original
to the MSHA Health and Safety Analysis Center . • • within 15
days after the end of each calendar quarter." It further
requires that "(e)ach operator shall retain an operator's copy at
the mine off ice nearest the mine for 5 years after the submission
date."
It is undisputed that Brown Brothers MSHA Form 7000-2 for
the first quarter of 1993 was not received by the MSHA Health and
Safety Analysis Center within 15 days after the end of the
calendar quarter. It is also undisputed that Greg Brown could
not find the operator's copy of the report on the day of the
inspection. Accordingly, I conclude that the Respondent did not
file the form as required, and, thus, violated Section 50.30(a) . 4
Citation No. 3604124
Section 5.6.16005 requires that " (c ] ompressed and liquid gas
cylinders shall be secured in a safe manner." In this case, the
evidence indicates that two cylinders were standing in the mine
shop and not secured in any manner. No one was present in the
shop at the time. While the inspectors believed that the
cylinders were full, that is not necessary to establish a
violation of this regulation. Laurel County sand and Gravel,
Inc., 15 FMSHRC 2380, 2383 (Judge Weisberger, November 1993);
Tide Creek Rock Products, 4 FMSHRC 2241 (Judge Koutras, December
1982). Consequently, I conclude that it has been estaQlished
that Brown Brothers violated the regulation as alleged.

4

I give no weight to Greg Brown's testimony that he found
the operator's copy during an inspection "a couple of month's"
prior to the hearing because the "found" copy was not offered at
the hearing and there is no way of knowing whether the copy found
was one mailed in a timely manner or, for instance, the one
prepared by Mr. Brown to abate the citation.

2000

Citation No. 3604125
Section 56.12032 provides that "[i]nspection and cover
plates on electrical equipment and junction boxes shall be kept
in place at all times except during testing or repairs·." It is
unchallenged that at the time of the inspection, the cover for
the switch box for the tank belt conveyor was lying on the
ground. There was no evidence of testing or repairs being
performed on it, nor does the Respondent claim that such was the
case. Therefore, I conclude that Brown Brothers violated Section
56.12032 of the Regulations.
Inspector Manis also concluded that this violation was
"significant and substantial." A "significant and substantial"
(S&S) violation is described in Section 104(d) (1) of the Act as
a violation "of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard." A violation is properly
designated S&S "if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature." Cement Division. National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:
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
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.
See also Austin Power. Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria).
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:

2 001

We have explained further that the third element of the
Mathies formula 'requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury.•
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(l), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company. Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company. Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
This evaluation is made in terms of "continued normal mining
operations." U.S. Steel Mining Company. Inc., 6 FMSHRC 1573,
1574 (July 1984). The question of whether a particular violation
is significant and substantial must be based on the particular
facts surrounding the violation. Texasgulf, Inc ., 10 FMSHRC 498
(April 1988); Youqhiogheny & Ohio Coal Company, 9 FMSHRC 1007
(December 1987).
As is frequently the case, the question of whether or not
this citation is S&S turns on the third element of the Mathies
test.
I have already concluded that a violation occurred and
there can be little doubt that by leaving the cover off of the
switchbox there was a measure of danger to safety, in this
instance the possibility of electrocution. Nor can there be any
question that electrocution is reasonably likely to result in an
injury of a reasonably serious nature. However, it is not as
readily apparent that the hazard contributed to is reasonably
likely to result in an injury.
The evidence indicates that the switchbox was located on
a post which was in a direct line from the shop to a tunnel; a
natural walkway between the two. The box was positioned about
chest high on the post so that it would be easily accessible,
intentionally or by accident, by anyone walking past. The leads
coming into the box were always charged, and not completely
insulated or shielded. Based on these facts, I conclude that
there was a reasonable likelihood leaving the cover off of the
switchbox would result in an injury, i.e. electrocution.
Accordingly, I conclude that this violation was "significant and
substantial."

200 2

Citation Nos. 3604126 and 3604127
Section 56.14109 provides that "[u]nguarded conveyors next
to the travelways shall be equipped with" emergency stop devices
or railings. It is uncontested that the unguarded belt conveyor
next to the walkway in the concrete sand tunnel and the unguarded
conveyor belt next to the walkway in the mortar sand tunnel had
neither emergency stop devices nor railings. Hence, I conclude
that these were violations of the regulation.
Citation No. 3604128
Section 56.14112{a) (1) states that:
"{a) Guards shall be
constructed and maintained to--(1) Withstand the vibration,
shock, and wear to which they will be subjected during normal
operation." It is undisputed that at the time of the inspection
the back section of the tail pulley guard for the mortar sand
belt conveyor was not in place. It apparently had been allowed
to decay to such an extent that most of it either fell off or
disintegrated. Clearly, it was not maintained sufficiently to
keep .it from wearing out. Thus, I conclude that this was a
violation of the regulation.
Citation No. 3604129
Section 56.14107(a) requires that "(m]oving machine parts
shall be guarded to protect persons from contacting gears,
sprockets, chains, drive, head, tail, and takeup pulleys,
flywheels, couplings, shafts, fan blades, and similar moving
parts .t hat can cause injury." Greg Brown admitted at the hearing
that the multi-V-belt drive for the sand pump was not guarded at
the time of the inspection. The belt was in ope~ation at the
time and was located at the foot of a stairway. Accordingly,
I conclude that Brown Brothers violated this regulation.
Inspector Manis considered this violation to be "significant
and substantial." Applying the Mathies criteria and taking into
consideration that this was a large belt drive, located at the
foot of a stairway and along an obvious walkway, in an area that
could become slippery from water or lubrication, which operated
at a high rate of speed, I agree with the inspector and conclude
that the violation was "significant and substantial."

2003

Citation No. 3604130
section 56.17001 states that "[i ] llumination sufficient to
provide safe working conditions shall be provided in and on all
structures, paths, walkways, stairways, switch panels, loading
and dumping site~, and work areas." The regulation does not
provide any insight as to how one determines whether the
illumination is sufficient to provide safe working conditions .
However, in a case concerning a predecessor of this regulation,
30 C.F.R. S 56 . 17-1, which was identically worded, the Commiss ion
said that "[rJesolution [of what constitutes sufficient
illumination] requires a factual determination based on the
working conditions in a cited area and the nature of the
illumination provided." Capita l Aggregates. Inc., 3 FMSHRC 1388
(June 1981).
Inspector Manis testified that "near the middle of the
tunnel there were several light bulbs that were failing, that
were either burned out or they were shorted, they were. not
burning" and that he did not believe that there was sufficient
illumination in the tunnel. (Tr. 58 . ) He also testified that it
was "[n]ot totally dark; no, sir. There were lights burning in
different areas, but in just one area near the middle of the
tunnel, there were several lights that were out, and I couldn't
see that well myself passing through there," although he "could
see the belt." (Tr. 91.) Inspector Verdier stated only "[i]n my
opinion there was not sufficient illumination." (Tr. 103 . ) On
the other hand, Greg Brown testified that, in his opinion, there
was sufficient illumination "for me to work in it." (Tr . 131.)
There is not enough information to make a factual
determination as to whether the illumination was sufficient or
not. Consequently, I conclude that the Secretary has not
sustained his burden of establishing a violation of this
regulation and will vacate the citation.
Citation No. 3604131
This citation alleges another violation of Section
56.14107(a), the requirements of which are set out under Citation
No. 3604129 above. It is undisputed that the multi-V-belt drive
motor for the sand pump was not guarded. The Respondent knew
that it was supposed to be guarded, and, if fact, had guarded
it prior to moving it to a new location. Therefore, I find a
violation of the regulation.
CIYIL PENALTY ASSESSMENTS

section llO(i) of the Act, 30 u.s.c. S 820(i), sets out six
criteria to be considered in determining an appropriate civil

2004

penalty. It is the judge's independent responsibility to
ascertain an appropriate penalty, based on these criteria, and he
is not bound by the proposal of the Secretary. Sellersburg Stone
Company v. Federal Mine Safety and Health Review commission, 736
F.2d 1147, 1151-52 (7th Cir. 1984).
In connection with these criteria, the parties have
stipulated that Brown Brothers is a small sand mine operator with
nine to ten employees; that payment of the proposed civil penalty
assessment will not adversely affect the Respondent's ability to
continue in business; that Brown Brothers had received two prior
citations during the period of February 11, 1989 through February
10, 1991; and that the citations in this proceeding were timely
abated by the Respondent in good faith.
(Tr. 4.)
In his brief, the Secretary has recommended that I impose a
penalty of $250.00 for the violation in Citation No. 3604123
(failing to file MSHA Form 7000-2), rather than the $50.00
originally proposed by the Secretary, because Brown Brothers has
received five prior citations for the same violation. While this
may be a germane reason for increasing the penalty in some
instances, it is not in this case.
Although Brown Brothers does indeed have five prior
violations of Section 50.30(a), the most recent one, previous to
this case, was on January 9, 1986. (Pet. Ex. 2.) There is no
evidence in this case that Brown Brothers has reverted to its
past practice of frequently failing to file the form or that this
failure was anything other than an oversight. Accordingly, I
concur with the inspector that this resulted from moderate
negligence and assess a penalty of $50.00.
The Secretary has also recommended a penalty of $250.00 for
the Respondent's failure to secure its compressed and liquid gas
cylinders because Carl Brown testified at the hearing that the
state in which the inspector found the cylinders was the way they
used them. To back up his point, he submitted photographs of
some cylinders, one of which clearly showed that the cylinders
were unsecured.
(Resp. Exs. 2 and 3.)
This argument is appealing, particularly in view of the fact
that Brown Brothers• main defense is that they have been in
business for 53 years and have never had an accident, therefore,
they do not need government regulation. (Resp. Ex. 1.) However,
I note that if Brown Brothers does always keep its cylinders
unsecured, as indicated, they have been very lucky because they
have never before been cited for this violation. (Pet. Ex. 2.)
Consequently, I will concur with the Secretary's original
assessment and order a penalty of $50.00 for this violation.
The Secretary suggests penalties of $250.00 each for the
failure to have an emergency stop device or railings on the

20 05

conveyor belts in the sand tunnels. This proposal is based on
the testimony of the inspector that he told Greg Brown on a
previous inspection that such devices were required. Therefore,
according to the Secretary, the failure to have installed them
was at a minimum highly negligent. on the other hand, Greg Brown
said that he had understood that installing an alarm which went
off before the belt began moving took care of the problem.
There is nothing in the evidence to show that Mr. Brown
deliberately misunderstood the inspector. Further, the fact that
he did take some action, installing the alarm system, removes
these violations from the high negligence category. Accordingly,
I will impose a penalty of $50.00 for each of these violations.
The Secretary urges a penalty of $1110 .00 for failing to
guard the multi-V-belt drive on the barge because the drive had
been guarded at its old location, the Respondent knew that it had
to be guarded at its new location, and it had not been re-guarded
because the Respondent thought that it was more important to meet
customer demands. I agree with the Secretary's counsel that this
indicates a greater degree of negligence than the moderate level
assessed by the inspector.
However, I do not agree that this amounts to "reckless
disregard" in view of the testimony that not only was the
Respondent interested in providing sand for its customers, but it
was also constantly having to change the pulleys and readjust the
belts to get the pump operating properly in the new location.
(Tr. 131, 149.) Therefore, I find the respondent to have been
highly negligent, but not "reckless," in a situation that could
reasonably have been expected to result in serious injury to an
employee and assess a penalty of $500.00.
The Secretary requests a penalty of $500.00 for failing to
guard the motor on the multi-V-belt drive on the grounds that the
Respondent had guarded it in its old location and knew that it
had to be guarded in its new location. The Secretary argues that
this was the result of the Respondent's "reckless disregard." I
do not concur. The evidence indicates that there was little
likelihood of an injury occurring. Consequently, while I find
that the Respondent was highly negligent in not guarding the
motor, I do not find that the failure to immediately replace this
guard amounted to "reckless disregard." I will assess a penalty
of $150.00 for this violation.
The Secretary has not made any new recommendations with
respect to Citation Nos. 3604125 and 3604128. Having considered
the penalty criteria, I conclude that the $136.00 and $50.00
penalties, respectively, originally proposed by the Secretary are
appropriate.

2006

ORDER
Citation No. 3604130 is VACATED and DISMISSED. Citation
Nos. 3604129 and 3604131 are MODIFIED by increasing the level of
negligence from "moderate" to "high" and are AFFIRMED as
modified. Citation Nos. 3604123, 3604124, 3604125, 3604126,
3604127 and 360412·s are AFFIRMED.
Brown Brothers Sand Company is ORDERED to pay, by single
check or money order for the entire amount, civil penalties in
the amount of $1,036.00 for these violations within 30 days of
the date of this decision. 5 on receipt of payment as ordered,
these proceedings are dismissed.

cl. ~~""1}1.,~
T. Todd Hod don
Administrative Law Judge
Distribution:
Michael K. Hagan, Esq., Office of the Solicitor, U.S. Department
of Labor, 1371 Peachtree St., N.E., Room 339, Atlanta, GA 30367
{Certified Mail)
·
Mr. Steve Brown, Partner, Brown Brothers Sand Company, Highway 90,
Box 82, Howard, GA 31039 (Certified Mail)
/lbk

5

It appears that in a previous case heard by me [Brown
Brothers Sand Company, 16 FMSHRC 452 (February 1994)), the
Respondent paid the assessed penalty in loose coins.
(Tr. 1315.) If, by such actions, Brown Brothers intended to demonstrate
its contempt for the Commission, as suggested by the Secretary,
it is advised that continued gestures of this nature may well
reflect adversely on any consideration of its good faith in
future appearances before the Commission.

2 007

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
520 3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

~3EP 2 8 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petiti oner

v.

.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 94-97-M
A.C. No . 24-019 58-05502
Docket No. WEST 94-40-M
A.C. No . 24-01958-05501

THE PIT,
Re spondent
DECISION
Appearances:

Kristi Floyd, Esq., Office of the Solicitor,
u. s. Department of Labor, Denver, Colorado,
for Petitioner;
Alfred J. Luciano, Eureka, Montana, Pro Se,
for Respondent. ·
Overview

These cases arise out of two inspections by MSHA
Representative Ronald Goldade, of a sand and gravel pit located
on a ranch near Eureka, Montana, operated by Alfred Luciano and
his family {Tr. 8, 197, 223-24) . The firs·t inspection occurred
in September 1992 and the second in September 1993. At neither
inspection did Inspector Goldade observe the production of sand
and gravel or the production of crushed rock {Tr. 22-23, 31-32,
48, 62). However, based on his observations, Goldade issued .
Respondent six citations in 1992 and eight in 1993, most of which
allege a failure to guard moving machine parts.
Respondent does not dispute the factual allegations
contained in the citations {Jt. Exh. 1, Stipulation I 5). Its
primary contention is that it was not subject to the Mine Act at
the time of either inspection because it was engaged in setting
up and adjusting its equipment rather than production (Tr. 9-10).
The company also contends that the 1993 citations were
issued to the wrong business entity. In 1992 the site was
operated by "The Pit", a business owned by Alfred Luciano's son,
Dan, {Tr. 140-42, Exh. G-21). By 1993, Respondent contends the
site was operated by the JFL trust, which was set up by

2008

Alfred Luciano for his wife and children (Tr. 223). Dan Luciano
had sold his equipment ' to the trust and worked for it at the time
of the 1993 inspection (Tr. 142-43). 1
Respondent also argues that, because it was not producing,
it was not engaged in or affecting interstate commerce. However,
since it was prepa~ing for activities that clearly would affect
commerce, I conclude that Respondent was subject to the commerce
clause at the time of the inspections, See, e.g .. Cyprus
Industrial Minerals Co. v. FMSHRC, 664 F. 2d 1116 (9th Cir. 1981)
[drilling of exploratory shaft in search of commercially
exploitable deposits is subject to Act]; Godwin v. OSHRC,
540 F.2d 1013, 1015, (9th Cir. 1976).
Another factor leading me to the conclusion that
Respondent's operations were subject to the commerce clause is
the use of equipment and supplies by Respondent which originated
outside the state of Montana (E.g. Jt. Exh-1, stipulation# 2).
Moreover, Respondent advertised its product on a public highway
only a few miles south of the Canadian border (Tr. 15, 33-35).
I also reject Respondent's primary contention that it was
not subject to the Mine Act because it had not started production
at the time of either inspection. Section J(h) (1) of the Federal
Mine Safety and Health Act, 30 u.s.c. § 802(h) (1), defines a
"coal or other mine" as:
(A) an area of land from which minerals are extracted
in nonliquid form or, if in liquid form, are extracted
with workers underground, (B) private ways and roads
appurtenant to such area, and (C) · lands, excavations,
underground passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment, machines,
tools, or other property ••. on the surface or
underground, used in, or to be used in, or resulting
from the work of extracting such minerals from their
natural deposits in nonliquid form ••• or used in, or to
be used in, the milling of such minerals •.• (emphasis
added).
The plain language of the Act, therefore, makes it clear
that equipment that is located at a site where mining will take
place, and will be used in the extraction of minerals, or the
milling of minerals, is subject to MSHA jurisdiction--even if
mining has not commenced.
Cyprus Industrial Minerals. supra.,
s HM Coal Company, 11 FMSHRC 1154, 1173-74 (ALJ, June 1989).
Moreover, semantics aside, it logically follows from the general
1

Additional equipment, most notably a Cedar Rapids brand
crusher, had been brought to the site by the trust in the period
between the two inspections (Tr. 33-34).

2009

scheme of Federal regulation of occupational safety and health,
that the installation and adjustment of equipment at a mine site
is subject to the Act prior to the commencement of production.
The Federal government regulates job safety and health
primarily under two statutes, the Occupational Safety and Health
Act for non-mining industries and the Mine Safety and Health Act
for mining. The essential purpose of these statutes is to
prevent occupational injuries and illnesses at all stages of
economic activity, rather than simply those at which goods are
actually produced, or services rendered. These statutes are
intended to protect employees from injury whether they are
setting up equipment or engaged in production.
Thus, I conclude that Congress intended that employees be
protected so far as is possible, either by OSHA or MSHA in preproduction activities which may pose occupational hazards.
Furthermore, the Mine Act clearly establishes MSHA jurisdiction
over employees who are setting up equipment at a worksite at
which mining is to take place in the future.
The last sentence of section 3(h) of the Mine Act provides:
In m~king a determination of what constitutes mineral
milling for purposes of this Act, the Secretary [of
Labor] shall give due consideration to the convenience
of administration resulting from the delegation to one
Assistant Secretary (of Labor) of all authority with
respect to the health and safety of miners employed at
one physical establishment.
Thus, Congress did not intend that the working conditions of
employees at a worksite be subject to OSHA during one phase of
economic activity, and subject to MSHA at another. Even more
importantly, it did not intend that employees or miners be
unprotected from hazards during pre-production activities.
The citations in both inspections were properly issued to "The
Pit".
Prior to the September 1992 inspection, a legal identity
report was filed with MSHA designating "The Pit" as the name of
the operator of the sand and gravel mine on the Luciano ranch
(Tr. 18-19, Exh • .G-2) • When Inspector Goldade returned to the
mine in September 1993, no changes to the legal identity form had
been filed with MSHA (Tr. 29-30). Goldade informed
Alfred Luciano on September 2, 1993, that the legal identity form
had to be updated if ownership of the mine had changed (Tr. 65).
Mr. Luciano either told Goldade that he did not wish to update
the ID form, or that the citations should be issued to "The Pit"
in order not to confuse matters (Tr. 65-66).

201 0

MSHA's regulations at 30 C.F.R S 41.12 require an operator
to notify the agency of any changes in the information contained
in the legal identity form within 30 days. Given the fact that
Respondent did not comply with the regulation and that
Mr. Luciano represents that he told Inspector Goldade . that the
1993 citations should be issued to "The Pit", I conclude that
Respondent is estopped (legally precluded) from claiming that
these citations were issued to the wrong entity.
The individual citations
The parties signed and introduced stipulations, which
included the following paragraph, number 5:
.•• the citations are admitted into evidence for the
truthfulness and relevancy of the facts and
designations contained therein. The sole issue
remaining with regard to the citations is whether or
not the plant was in operation at or about the time of
the inspections. This issue alone will determine
whether the alleged violations occurred (Jt. Exh-1).
While the question of whether the plant was in operation has
no relevance to the non-machine guarding citations, it is
relevant to the 10 citations issued alleging a violation of
30 C.F.R S 56.14107(a). The standard provides that:
Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains,
drive, head, tail, and takeup pulleys, flywhee l s,
couplings, shafts, fan blades, and similar moving parts
that can cause injury.
A related regulation at 30 C.F.R § 56.14112 (b) states that:
Guards shall be securely in place while machinery is
being operated, except when testing or making
adjustments which cannot be performed without removal
of the guard.
During presentation of its case, Respondent elicited
considerable evidence questioning whether it would have been able
to guard the cited moving machine parts during the set-up,
testing, and adjustment of its equipment. Contract Electrician
John Dunster testified that it was, at times, impossible to take
his strobe light readings with guards in place (Tr. 100).
Contract Welder Carl Hammond testified that, to adjust
Respondent's conveyor belts, the guards for those belts had to be
removed in places (Tr. 125-26, 129-30).
on the other hand, Inspector Goldade, who had experience
setting up similar equipment as a contract welder in the 1980s
2011

contends that it can be set-up, adjusted and aligned with the
guards in place (Tr. 93-94). Although the burden of proving that
compliance with an MSHA regulation is impossible is on the
operator, Climax Molybdenum Co., 2 FMSHRC 1884, 1886
(ALJ July 1980), the standard, in this instance, recognizes that
guards cannot be kept in place in certain circumstances.
Given the fact that the testimony of Respondent's witnesses
is more specific regarding the facts in this case regarding the
feasibility of guarding the company's equipment, I credit those
witnesses. Welder Carl Hammond testified that some areas could
be guarded prior to the inspection and others could not (Tr. 12530). Since Inspector Goldade's testimony that set-up and
adjustment can be done with guards in place is not tied to the
specific circumstances of the citations, I find that the
preponderance of the evidence is that these areas could not have
been guarded at the time of the inspections. The fact that
Respondent did guard the cited areas after the inspection does
not necessarily indicate that the company could have performed
the set-up and adjustment work of September 1, 1993, or the
testing of September 17, 1992, with guards in place. 2
The preponderance of the evidence also supports Respondent's
contention that its equipment was not run for purposes other than
testing or making adjustments at the time of and prior to the
inspections (Tr. 121, 153, 164-68). As the evidence thus fails
to establish that guarding could have been maintained on these
occasions, I vacate citations 4122660, 4122661, 4122662, 4122663,
4122664, 4331764, 4331765, 4331766, 4331767 and 4331768.
The issue of whether Respondent's plant was operating has no
bearing on the validity of the remaining 4 citations. Thus,
pursuant to the stipulation of the parties, these citations are
affirmed.
Assessment of Civil Penalties
Section llO(i} of the Act provides that the Commission shall
assess civil monetary penalties after giving consideration to the
operator's history of previous violations, the size of the
operator's business, the negligence of the operator, the gravity
of the violations, the good faith of the operator in ·achieving
rapid compliance after notification of the violation, and the

2

For example, MSHA verified that guards had been installed
on September 22, 1993, when conditions may have been very
different than on September 1, 1993, see, e.g., Citation page
4331764-1, block 12.

2 01 2

effect of the penalty on the operator's ability to stay in
business. The parties' stipulation addresses three of these
factors.
The proposed penalties of $917 for the 14 violations will
not affect Respondent's ability to stay in business (Jt. Exh.-1,
paragraph# 7). Respondent demonstrated good faith in abating
the violations (Jt. Exh.-1, paragraph 8), and is a small operator
(paragraph 9).
Exhibit G-1 shows no citations issued to Respondent other
than those at issue in these proceedings. Thus, the most
critical factors to assess are the negligence of the operator and
the gravity of the violations.
I assess a $25 penalty for citation 4122665, which alleges a
violation of 30 C.F.R S 56.4101 in that the area of the mine site
where diesel fuel and gasoline was stored, was not posted with an
appropriate warning sign of no smoking and open flame on
September 17, 1992. As there is no evidence as to smoking or
open flames in this area, I view the gravity of the violation
fairly low. There is no evidence in the record regarding
negligence.
A $60 penalty is assessed for citation 4331760, which
alleges a violation of 30 C.F.R S 56.9300(a) on September 1,
1993, in that no berm or guardrail was provided on the outside
edge of an elevated ramp used by a front-end loader (Exh. G-2).
The gravity of injuries that are likely to result, if such a
violation produced an injury, warrants this amount. The record
establishes that the cited ramp was used by a front-end loader in
the c9nstruction of Respondent's equipment (Tr. 132-33).
A $100 penalty is assessed for citation 4331763. That
citation alleged a violation of 30 C.F.R S 56.12025, in that a
ground circuit was not provided for a 220-volt switch box. The
record establishes that at least a temporary ground could have
been maintained (Tr. 100-102). Therefore, Respondent's
negligence warrants a civil penalty of this magnitude. Finally,
I assess a $25 penalty for Respondent's failure to comply with
section 56.18002(b) [no workplace examination by a competent
person] as specified in citation 4331770.

2013

ORDER

The citations here1n are affirmed and Respondent 3 is
ORDERED to pay the $210 in total penalties within 30 days of this
decision.

A~~~~

Administrative Law Judge
703-756-6210

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, u. s. Department of
Labor, 1999 Broadway, Suite # 1600, Denver, co 80202- 5716
(Certified Mail)
Ms. Faye Williams, Office Manager; Alfred J. Luciano, Trustee;
JFLI TRUST dba The Pit, P. o. Box 1050, Eureka, MT 59917
(Certified Mail)
/jf

3

Regardless, of whether "The Pit" still exists as a
business entity, I expect that these penalties be paid, either by
the JFL Trust, or by Alfred or Dan Luciano in some other
capacity.
2014

OFFICE OF ADMINISTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESIURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 2 9 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MAGIC COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS

.
:
:

Docket No. KENT 94-427
A.C. No. 15-17071-03531
Docket No. KENT 94-446
A.C. No. 15-17071-03532

Docket No. KENT 94-447
. A.C.
No. 15-17071-03533
.
. Magic Mine
PECISIONS
Appearances:

Brian W. Dougherty, Esq . , Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
William D. Donan, Esq., William R. Thomas, Esq.,
Madisonville, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed by
the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
820(c), seeking civil penalty assessments for eight (8), alleged
violations of certain mandatory safety standards found in
Parts 48 , and 75, Title 30, Code of Federal Regulations.
Hearings were held in Evansville, Indiana, and the parties
appeared and participated fully therein. The parties informed
me that they proposed to settle these matters, and their
arguments in support of their proposals were made on the record.
Issues
The issues presented in these proceedings include the fact
of violation, whether some of the violations were "significant
and substantial", and the appropriate civil penalty assessments
to be made for the violations. Additional issues raised by the
parties are identified and disposed of in the course of these
decisions .
2015

Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977; 30 u.s.c. § 301 ~ ~·

2.

Sections llO(a) and llO(i) of the Act.

3.

Commission Rules, 29 C.F.R.

§

2700.1 ~§.@SI·

Stipulations
The parties stipulated to the following (Tr. 5-8; Joint
Exhibit 1):
1.

Magic Coal Company is subject to the Mine Act.

2. Magic Coal Company and its Magic Mine have an affect
upon interstate commerce within the meaning of the Mine Act.
3. Magic coal Company and its Magic Mine are subject to the
jurisdiction of the Commission, and the presiding judge has
the authority to hear and decide these cases.
4. Reasonable penalty assessments in these cases will not
affect the respondent's ability to remain in business.
The parties further stipulated to the admissibility of an
MSHA computer printout reflecting the respondent's prior history
of violations for the 24 months period prior to the issuance of
the citations in these proceedings (Tr. 7-8; Exhibit G-1). After
the review of the information presented, I conclude and find that
the respondent's prior compliance record does to warrant any
additional penalty increases in these proceedings.
The parties also agreed that the respondent is a small mine
operator, and the petitioner's pleadings reflect an annual coal
production of 76,032 tons (Tr. 10-11).
Upon review of all of the citations and the order issued
in these cases, I conclude and find that the respondent
demonstrated rapid good faith compliance in abating all of
the cited conditions or practices in these proceedings.
KENT 94-427
Section 104(a) "S&S" citation No. 3859223, issued on
November 29, 1993, cites an alleged violation of 30 C.F.R.
I 75.503, and the cited condition or practice states as follows:

2016

The 484 S&S scoop being used in the 4th South panel
return air course was found to have an opening in
excess of .004 inches in the main breaker (electrical)
panel·.
Section 104(a) non-"S&S" Citation No. 3859224, i•sued on
November 30, 1993, cites an alleged violation of 30 C.F.R .
S 75.1101-23(c), and the cited condition or practice states as
follows:
A violation exists in that practice fire drills have
not been conducted as required. According to the
record book kept at the mine, drills were last
conducted 8-30-93 making it 92 days from today's date
of 11-30-93. Drills are required at least once every
90 days.
Section 104(a) non-"S&S" Citation No. 3859226, issued on
November 30, 1993, cites an alleged violation of 30 C.F.R.
§ 75.807, and the cited condition or practice states as follows:
The 7200 high voltage cable provided to the power
center which supplies power to the continuous miner on
the #1 unit (MMU #001-0) was not guarded where men are
required to pass under it so as to connect couplers
from trailing cables which are connected to a second
power center on the #1 unit.
Petitioner's counsel presented arguments on the record in
support of the proposed settlement of these citations. He stated
that the respondent has agreed to pay the .fY.ll amount of the
proposed penalty assessments, and the respondent's counsel
confirmed that this was the case and agreed to the proposed
settlement of the violations.
l(ENT 94-446
Section 104(a) non-"S&S" citation No. 3859237, issued on
December 21, 1993, cites an alleged violation of 30 C.F . R.
§ 75.1702, and the cited condition or practice states as follows:
The approved smoking program is not being followed in
that a record of the search is not recorded for the. 2nd
shift in the record book being kept at the mine. The
approved plan page 1 item 4 requires the record of the
smokers search be kept. The last recorded date for
this crew is 12-13-93.
Section 104(a) "S&S" Citation No. 3859238, issued on
December 21, 1993, cites an alleged violation of 30 C.F.R.
S 75.606, and the cited condition or practice states as follows:

2017

A violation was observed on the #1 unit in that the
trailing cable of the Joy 21SC shuttle car S/N
ET 12600, was not adequately protected to prevent
damage by mobile equipment. The cable showed evidence
of having been driven over. Tire tracks were observed
over the cable and the trailing cable was recessed into
the mine floor. This portion of the cable was located
in the crosscut ·between the #4 and #5 return room, one
crosscut inby the tailpiece.
Section 104(a) "S&S" Citation No. 3859239, issued on
December 22, 1993, cites an alleged violation of 30 C.F.R.
§ 75.370(a) (1), and the cited condition or practice states
as follows:
The velocity of air along the 4th South panel conveyor
belt at spad #550 was found to be moving at a rate of
30 feet per minute when measured using mechanical
smoke. The approved plan requires no less than 50 ft.
per/min. A low-level carbon monoxide detection system
is utilized as an early warning fire detection system
along the belt line system for this mine.
Section 104(a) "S&S" citation No. 3859240, issued on
December 22, 1993, cites an alleged violation of 30 C.F.R.
§ 75.370(a) (1), and the cited condition or practice states as
follows:
When mechanical smoke was released no perceptible air
movement was found along the 2nd West belt conveyor
between the #46 crosscut and #47 crosscut, approx.
150 ft, inby the 2nd West head drive. The approved
ventilation plan requires the air to move in an inby
direction at a velocity of no less than 50 ft. per.
min., or no greater than 300 ft. per. min., and have a
definite and distinct movement.
Petitioner's counsel presented arguments on the record in
support of the proposed settlement of these citations. He stated
that the respondent has agreed to pay the .t:Y.l.l. amount of the
proposed penalty assessments, and the respondent's counsel
confirmed that this was the case and agreed to the proposed
settlement of the violations.
JENT 94-447
This case concerns a proposed civil penalty assessment of
$2,600, for an alleged violation of mandatory training standard
30 c.F.R. § 48.S(a), as stated in withdrawal Order No. 3856665,
issued by MSHA Inspector Robert H. Gary on October 18, 1993,
pursuant to section 104(g) (1) of the Act. The order states as
follows:
2018

The following underground miners employed at the Magic Mine
have not received the requisite safety training as stipulated in
Section 115 of the Act:
1)

Sam Atkins, Last received 9-11-92.

2)

R.C. Coakley.

8-6-92.

3)

Steve Parks.

1-28-92.

4)

Willoughby c. Pryor.

5)

Hubert Hunt.

6)

Tony Lowe. 8-6-92.

7)

Lowman Barnes.

1-28-92.

8)

Donald Daniels.

1-10-92.

9-11-92.

1-28-92.

These miners have not received annual refresher
training at any time during the last calendar month of
the miner's annual refresher training cycle. In the
absence of s~ch training these miners are declared to
be a hazard to themselves and others and are to be
withdrawn immediately and/or not allowed to enter the
mine until they have received the required training.
The order was terminated on October 25, 1993, after the
cited miners received the requisite training, and the required
MSHA Forms 5000-23, were issued and reviewed by the inspector.
Petitioner's counsel stated that the parties agreed to
settle this matter, and that the respondent has agreed to pay a
penalty assessment of $1,700. MSHA has agreed to modify the
order from "S&S" to non-"S&S". In support of this proposal,
MSHA's counsel stated that the cited miners were all experienced
miners and that the evidence he developed. in preparation for the
trial would not support a finding of a reasonable likelihood of
an injury.
The respondent's representative and mine owner, William
Donan, confirmed that all of the cited miners were experienced
miners who had received training under an approved state training
plan, and were scheduled for retraining under that plan by the
Kentucky State Bureau of Mines on the day the order was issued.
Mr. Donan further stated that he was advised by the state mine
inspectors that he was in compliance with state law regarding
ainer training and retraining.
After careful review of all of the pleadings and arguments
presented by the parties in these proceedings, including the six
2019
.·:

statutory penalty assessment criteria found in section llO(i) of
the Act, I rendered bench decisions approving the settlement
dispositions pursuant to Commission Rule 31, 29 C.F.R . § 2700.31.
My bench decisions are herein reaffirmed, and I conclude and find
that they are reasonable and in the public interest.
ORDER
In view of the foregoing, IT IS ORDERED that the following
aection 104(a) citations ARE AFFIRMED as issued, and the
respondent IS ORDERED to pay the proposed penalty assessments
in settlement and satisfaction of the violations.
Pocket No. KENT 94-42 7
Citation No.
3859223
3859224
3859226

l2Ail
11/ 29/ 93
11/ 30/93
11/ 30/ 93

30 C.F.R. Section
75.503
75.1101-23(c)
75.807

Assessment
$111
$50
$50

30 C.F.R. Section
75.1702
75.606
75.370(a) (1 )
75.370(a) (1)

Assessment
$50
$50
$189
$189

Pocket No. KENT 94-446
Citation No.
3859237
3859238
3859239
3859240

J2All
12/ 21/ 93
12/ 21/ 93
12/ 22/ 93
12/ 22/ 93

Pocket No.

KENT 94-447

Order No.

~

3856665

10/ 18/ 93

30 C.F.R. section

Assessment

48,8(a)

$1,700

IT IS FURTHER ORDERED that section 104(g) (1) "S&S" Order
No. 3856665, IS MODIFIED to a section 104(g) (1) non-"S&S" order ,
and as modified IT IS AFFIRMED.
The respondent shall pay the aforementioned civil penalty
assessments to the petitioner (MSHA) within thirty (30) days of
the date of these decisions and Order, and upon receipt by MSHA,
these proceedings are dismissed.

~.~ras

Administrative Law Judge

2020

~

Distribution:
Brian w. Dougherty, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215-2862 (Certified Mail)

Kr. William o. Oonan, Esq., Magic Coal company, P . O. Box 1352,
Kadiaonville, KY 42431 (Certified Mail)
William R. Thomas, Esq. , 33 East Broadway, Madisonville,
KY 42431 (Certified Mail)
/ml

2021

FEDERAL MINE SAFETY AND. HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON. 0 .C.

20006

September 30, 1994

CIVIL PENALTY PROCEEDING

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

Docket No . WEST 92 - 318-M
A. C. No . 45- 00087-05531

v.
Sunset Quarry
EASTSIDE ROCK PRODUCTS ,
Respondent
ORDER OF DEFAULT
Befor e :

J u dge Merl i n

This case is before me pursuant to Order of the Commission
dated February 23, 1994 .
On March 8 , 1994, I issued an order vacating the order of
dismissal previously e ntered and reinstating this case . Upon a
motion from the Secretary I determined that this matter h ad been
dismissed in error because the penalty assessment did not involve
excessive history.
The March 8 order also directed the operator to file an
a nswer to the penalty petition a copy of which was enclosed with
the order. The operator had not submitted an answer at the time
of the erroneous dismissal . The file contains the return receipt
showing that the operator received the March 8 order on March 11,
1994 . On J u ne 3, 1994, a show cause order wa s issued directing
the operator to file an answer . The operator was advised that
failure to file an answer will result in the operator being
placed i n default . To date no answer has been received .
In light of the foregoing , it is ORDERED t h at the oper ator
be h eld i n DEFAULT and the operator is ORDERED TO PAY $ 4 06
immediatel y .

\

Paul Me rlin
Chief Administra tive La w J udge

2022

Distribution:

(Certified Mail)

Robert A. Friel, Associate Regional Solicitor, Rochelle
Kleinberg , Esq., Office of the Solicitor, U. S. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101
Mr. Richard Schroeder, owner, Eastside Rock Products, P. o. Box
1324, Issaquah, WA 98027
/gl

2023

2024

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL .MINE SAFETY AND HEALTH REVIEW COMMISSION ·.
1730 K STREET NW. 6TH FLOOR
WASHINGTON, 0 .C.

20006

August 31, 1994
Master Docket No. 91-1
IN RE: CONTEST OF RESPIRABLE
DUST SAMPLE ALTERATION :
CITATIONS

.

KEYSTONE COAL MINING
CORPORATION,
contestant

v.

.
.
.
.
.
...

CONTEST PROCEEDINGS
Docket Nos. PENN 91-451-R
through
PENN 91-503-R

:

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

v.
KEYSTONE COAL MINING
CORPORATION,
and
UNITED MINE WORKERS OF
AMERICA,
Respondents

..
.
.
...
.
.:
.
:
..
.
..

Docket Nos. PENN 91-1176-R
through
PENN 91-1197-R

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 91-1264
Docket No. PENN 91-1265
Docket No. PENN 91-1266
Docket No. PENN 92-182
Docket No. PENN 92-183

ORDER OF STAY

There is now before me the Secretary's motion to stay those
cases in Master Docket No. 91-1 which are not presently on appeal
to the Commission. The stay is requested until the Commission
renders a decision in the specific dockets captioned above which
are pending before it. The cases before the Commission ·and those
in the master docket involve allegations by the Secretary that
the operators intentionally tampered with respirable dust cassettes. The operators have filed briefs, some of which oppose a
stay and some of which do not.
Upon consideration of the motions and briefs filed by the
parties, I determine that in the interests of judicial economy
the cases in the master docket not on appeal should be stayed. I
am of the view that a decision by the Commission in the cases on
appeal, particularly on the common issues, may well affect how
the remaining cases are perceived and the manner in which they
proceed.
2025

Accordingly, i t is ORDERED that the cases in Master Docket
No. 91-1 be STAYED pending decision by the Commission in In Re:
contest of Respirable Dust Sample Alteration Citations, Master
Docket No. 91-1 and Keystone Coal Mining Corp., Docket Nos. PENN
91-451-R, et al.

--

Paul Merlin
Chief Administrative Law Judge
Distribution:

{Certified Mai l)

Jerold S . Feingold, Esq., Stephen D. Turow, Esq., Offic e of the
Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., 4th
Floor, Arlington, VA 22203
R. Henry Moore, Esq., Buchanan Ingersoll, USX Tower, 57th Floor,
600 Grant Tower, Pittsburgh, PA 15219
Barry A. Woodbrey, Jr ., Esq., United Mine Workers of America,
900 15th St., N.W., Washington, D.C .
20005
Laura E. Beverage, Esq., Jackson & Kelly , 1660 Lincoln Street,
Denver, Colorado 80264
Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania
Ave., N.W., Washington, D.C.
20004
Michael T. Heenan, Esq., Smith, Heenan & Alth~n, 1110 Vermont
Avenue, N.W., Washington, D.C.
20005
John Palmer, Esq., Robinson & McElwee, P .O. Box 1791, Charleston,
WV 25326
H. Thomas Wells, Esq., Maynard, Cooper & Gale, 1901 6th Avenue,
N.W., Suite 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203
Robert B. Allen, Esq., John J. Polak, Esq., King, Betts and
Allen, P.O. Box 3394, Charleston, WV 25333
Jack Alsop, Esq., 109 South Main Street, Webster Springs, WV
26288
Karl F. Anuta, Esq., Western Fuels-Utah, Inc., P.O. Box 1001,
1720 14th Street, Boulder, co 80306
See Attached List
2026