AUGUST 2001

COMMISSION DECISIONS AND ORDERS

08-03-2001
08-10-2001
08-22-2001
08-22-2001
08-22-2001
08-22-2001
08-22-2001
08-22-2001
08-23-2001
08-30-2001

Vermont Unfading Green Slate Co., Inc.
Douglas R. Rushford Trucking
Black Gold Trucking Company
San Juan Coal Company
Shirley Land Development Inc.
Cantera Bravo Inc.
Carri Scharf Materials, Company
Baker Slate, Inc.
Georges Colliers, Inc.
Eagle Energy, Inc.

YORK 2000-65-M
YORK 99-39-M
SE
2001-113
CENT 2001-102
SE
2001-108-M
SE
2001-107-M
LAKE 2001-154-M
YORK 2001-61-M
CENT 2000-65
WEVA 98-39

Pg. 787
Pg. 790
Pg. 797
Pg. 800
Pg. 805
Pg. 809
Pg. 813
Pg. 818
Pg. 822
Pg.829

SE
2001-27
WEST 2000-421-M
WEVA 98--1-48VA
2001-10-M
VA
99-8-M
WEST 2000-306-M
CENT 99-1-M
WEST 2001-334-R

Pg. 851
Pg. 859
Pg. 863
Pg.865
Pg.867
Pg. 873
Pg. 876
Pg. 887

KENT 2001-22-D

Pg. 892

WEY A 2000-80-DM
PENN 2000-203

Pg. 901
Pg. 904

ADMINISTRATIVE LAW JUDGE DECISIONS

08-02-2001
08-02-2001
08-03-200 l
08-15-2001
08-16-2001
08-16-2001
08-28-2001
08-29-2001
08-31-2001

U.S. Steel Mining Company, Inc.
Contractors Sand & Gravel Inc.
Consolidation Coal Company
Virginia Slate Company
Virginia Slate Company
Hard Rock Mining Company of Olympia, Inc.
Higman Sand & Gravel, Inc.
Bridger Coal Company
Sec. Labor on behalf of Dewayne York
v. BR & D Enterprises, Inc.

ADMINISTRATIVE LAW JUDGE ORDERS

08-06-2001 Daniel C. Howell v. Capitol Cement Corp.
08-10-2001 Harriman Coal Corporation

i

AUGUST

2001

Review was granted in the following cases during the month of August:
Secretary of Labor, MSHA v. Vermont Unfading Green Slate Company, Inc.,
Docket Nos. YORK 2000-65-M, 66-M. (Judge Hodgdon, March 21, 2001)
Secretary of Labor, MSHA v. Dynatec Mining Corporation, Docket No.
EAJ 2001-3. (Judge Manning, July 10, 2001)

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

Secretary of Labor, MSHA on behalf of Ernest J. Jensen v. Energy West Mining
Company, Docket No. WEST 2000-203-D. {Judge Cetti, July 11, 2001)

ii

COMMISSION DECISIONS AND ORDERS

.·

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

August 3, 2001

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

Docket Nos. YORK 2000-65-M
YORK 2000-66-M

v.

VERMONT UNFADING GREEN
SLATE COMPANY, INC.

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
ORDER
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On March 21, 2001, Administrative Law
Judge T. Todd Hodgdon issued a decision vacating, modifying and affirming various citations
alleging violations of mandatory safety standards issued to Vermont Unfading Green Slate
Company, Inc. ("Vermont Slate"). 23 FMSHRC 310 (Mar. 2001) (ALJ). Vermont Slate
subsequently filed with the Commission a petition for discretionary review, challenging the
judge's decision.
In a letter to the Commission dated July 16, 2001, Vermont Slate states that it filed its
petition with the Commission via facsimile on April 20, 2001. Vermont Slate attached to its
letter a facsimile history report, and a copy of its petition. The Commission has determined
administratively that it received Vermont Slate's petition on April 20.

The judge's jurisdiction in this matter terminated when his decision was issued on March
21, 2001. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by filing a
petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). Due to clerical inadvertence, the Commission did not act on Vermont Slate's
petition within the statutory period for considering petitions for discretionary review. The

787

judge,s decision became a final order of the Commission 40 days after its issuance. 30 U.S.C.
§ 823(d)( 1).
The Commission has recognized that, in appropriate circumstances, it may grant various
forms of relief from final Commission orders. Guilmette Bros. Corp., 22 FMSHRC 803, 804
(July 2000). In reopening final orders, the Commission ha~ found guidance in, and has applied
"so far as practicable," Rule 60(b) of the Federal Rules of Civil Procedure. See 29 C.F.R.
§ 2700. l(b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); Jim Walter Res., Inc., 15 FMSHRC 782, 787 (May 1993). In
accordance with Rule 60(b)( 1), we previously have afforded a party relief from a final order of
the Commission on the basis of inadvertence or mistake. See Gen. Chem. C01p., 18 FMSHRC
704, 705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996);
Srilhmter Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).

In the interest of justice, we reopen these proceedings. See Cedar Lake Sand & Gravel
Co. , 15 FMSHRC 2253, 2254 (Nov. 1993); Remp Sand & Gravel, 16 FMSHRC 501, 502 (Mar.
1994). We shall consider the merits of Vermont Slate,s petition and rule on whether review
should be directed by separate order.

'\

r-

--\-~ e lcL

James C. Riley, CommiSSiOilef(/~-

Robert H. Beatty, Jr., Commissio er
788

~

Distribution
Shawn Camara
Vermont Unfading Green Slate Co., Inc.
P.O. Box 210
Poultney, VT 05764
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22201
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite l 000
Falls Church, VA 22041

789

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

August 10, 2001

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

Docket No. YORK 99-39-M

DOUGLAS R. RUSHFORD TRUCKING

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) (''Mine Act" or "Act"). At issue is whether Administrative
Law Judge Gary Melick, upon remand for reassessment of penalty, correctly assessed a penalty
against Douglas R. Rushford Trucking ("Rushford"). 22 FMSHRC 1127 (Sept. 2000) (ALJ).
For the reasons that follow, we vacate the judge's penalty and remand for the reassessment of the
civil penalty.
I.

Factual and Procedural Background
This is the second time that this proceeding has been before the Commission. A
summary of the background facts and the judge's initial decision (22 FMSHRC 74 (Jan. 2000)
(ALJ)) is found in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000) ("Rushford I").
Briefly, a Rushford employee was fatally injured when, as he was inflating a tire on a fuel truck,
the wheer'rim exploded and struck him in the head. At the time, he had not been using a standoff inflation device. 22 FMSHRC at 599. MSHA charged Rushford with violating 30 C.F.R.
§ 56.14104(b)(2), which requires stand-off inflation devices to be used during tire inflation to
prevent injury from wheel rims by permitting individuals to stand outside of the potential
trajectory of wheel components. The Secretary proposed a civil penalty of$25,000. 22
FMSHRC at 599. The judge found a violation and determined that it was significant and
790

substantial ("S&S") and a result ofRushford's unwarrantable.failure. Id. He assessed a $3000
civil penalty. Id.
On review, the Commission affirmed the judge's finding of a violation and its
characterization as S&S and unwarrantable, but concluded that the judge neglected to make
findings on all of the penalty criteria set forth in Mine Act section l lO(i), 30 U.S.C. § 820(i), 1
particularly with respect to the gravity of the violation. 22 FMSHRC at 602. In our opinion
remanding this proceeding, we instructed the judge to provide a more complete explanation of
his penalty assessment. Id. We held that, if the judge decided a substantial reduction in the
penalty proposed by the Secretary of Labor was warranted, he must explain the rationale for the
reduction, especially in light of his finding of"gross negligence." Id. We also directed the judge
to examine Rushford's lack of history of violations, which the Secretary claimed was a result of
Rushford' s failure to file quarterly reports and consequently could not be considered a mitigating
factor in a penalty assessment. Id. Because the record was unclear on this point, we indicated
that the judge could reopen the record to assist in his examination ofRushford's history of
violations. Id. The judge held a supplemental hearing on August 24, 2000.2
On remand, the judge discussed each of the section l lO(i) criteria. He determined that an
increase in the penalty he had originally assessed was warranted because Rushford's lack of
history of violations stemmed in part from its mistaken failure to file quarterly forms and,
according to the Commission's instructions, could not be a mitigating factor. 22 FMSHRC at
1128-30. The judge found that Rushford was very small, and that it exhibited good faith in
achieving rapid compliance by purchasing a stand-off device and posting the requirement that it
be used at the mine. Id. at 1130-31. The judge noted the operator's acknowledgment that a
$25,000 penalty would result in hardship, but would not cause it to cease operations. Id. Relying
on Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir.
1984), he observed that without proof that the imposition of penalties would adversely affect an
operator's ability to continue in business, there is a presumption that no such adverse effect
would occur. 22 FMSHRC at 1131. He determined that the violation, which caused a fatality,

Section 11 O(i) of the Mine Act requires that, "[i]n assessing civil monetary penalties,
the Commission shall consider" the six statutory penalty criteria:
I

[l] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6) the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
2

Hearings in this case were held on August 26, 1999 ("Tr. I"), August 2 7, 1999 ("Tr.
II"), October 5, 1999 ("Tr. Ill") and August 24, 2000 ('Tr. IV").
791

was of"high gravity." Id. The judge stated that, although the violation was the result of "high"
and "gross" negligence, he considered that Rushford's negligence resulted from a "self-imposed
ignorance" of the standard rather than any "intentional non-compliance," making the violation
arguably "not the result of unwarrantable failure.'; Id. at 1130. The judge assessed a penalty of
$4000, concluding that the Secretary's proposed penalty of $25,000 lacked analytical support and
was disproportionate to an appropriate consideration of the penalty criteria. Id. at 1132-33.

II.
Disposition
On appeal, the Secretary argues that the judge's penalty assessment on remand was
flawed. PDR at 2.3 She asserts that the judge erred in determining that, because the violation
was the result of operator "self-imposed ignorance" of MSHA standards, the operator's
negligence was reduced for penalty assessment purposes. Id. at 5-7. That determination,
according to the Secretary, is inconsistent with the judge's original decision, the Commission's
decision and Commission precedent. Id. She contends that the judge also erred by requesting
the Secretary to provide underlying information for her penalty assessment. Id. at 9-16.
Rushford did not file a brief with the Commission.
Although Commission judges are accorded considerable discretion in assessing civil
penalties under the Mine Act, in reviewing a judge's penalty assessment, the Commission must
determine whether the factual findings of the penalty are supported by substantial evidence and
are consistent with the statutory penalty criteria set forth in Mine Act section 110(i).
Westmoreland Coal Co. , 8 FMSHRC 491, 492 (Apr. 1986). While "a judge's assessment of a
penalty is an exercise of discretion, assessments lacking record support, infected by plain error,
or otherwise constituting an abuse of discretion are not immune from reversal .. . ." US. Steel
Corp., 6 FMSHRC 1423, 1432 (June 1984).
We agree with the Secretary that the judge's negligence determination on remand, on
which he relied to reduce the penalty (see 22 FMSHRC at 1130), conflicts with his original ·
decision. 22 FMSHRC 74. On remand the judge held that Rushford's "self-imposed ignorance
of the ... standard" made the violation "at least arguabl[y] . . . not the result of unwarrantable
failure." 22 FMSHRC at 1130. However, in his original decision, the judge found that the
violation was a result of unwarrantable failure and "high negligence." 22 FMSHRC at 77-78.
Those findings stemmed from "the evidence that Rushford had never bothered to obtain a copy

3

The Secretary designated her petition for discretionary review ("PDR") as her brief.

792

of the health and safety regulations governing the operation of [the] mine, " 4 that the appropriate
tire inflating device was not available at the mine, and that the mine owner "did not even know
what a stand-off inflation device was." Id. The judge concluded: "these factors clearly support a
finding of unwarrantability and gross negligence." Id. at 78.
In Rushford I, the Commission directed the judge to explain his reduction in the proposed
penalty in light of his ~nding of gross negligence. 22 FMSHRC at 602. Instead of giving the
required explanation on remand, the judge attempted to retract his earlier gross negligence
finding. However, because the judge's original findings of gross negligence and unwarrantable
failure were not appealed to the Commission, those issues were not subsequently remanded to
him, and instead became the law of the case. See Lion Mining Co., 19 FMSHRC 1774, 1777
(Nov. 1997) (holding that on remand, judge could not revisit unappealed portions of.initial
decision). Accordingly, to the extent the judge's remand decision purported to retract his initial
findings of gross and high negligence, the judge erred.
Additionally, the judge's reasoning that "self-imposed ignorance" reduces an operator's
negligence conflicts with Commission precedent. In the context of Mine Act section 1 lO(c), 30
U.S.C. § 820(c), 5 we have held that in order to show section l lO(c) liability, the Secretary must
prove that an individual knew or had reason to know of the violative conditions, not that the
individual knowingly violated the law. Prabhu Deshetty, 16 FMSHRC 1046, 1051-53 (May
1994). In Deshetty, the Commission affirmed a high negligence determination despite Deshetty's
claim that he was not aware of whether the cited conditions were prohibited under the law. 16
FMSHRC at 1053. In Roy Glenn, 6 FMSHRC 1583, 1587 (July 1984), the Commission
explained that supervisors "could not close their eyes to violations, and then assert lack of
responsibility for those violations because of self-induced ignorance." The judge's negligence
discussion also contravenes the general principle that ignorance of the law is no defense. See
McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 509 (1st Cir. 1996) (providing that ignorance
oflaw is not a defense to a claim for punitive damages in a case arising under Title VII); McGee
v. C.J.R., 979 F.2d 66, 70 (5th Cir. 1992) (providing that innocent spouse relief under the Internal
Revenue Code is "designed to protect the innocent, not the intentionally ignorant").
Because the judge's discussion of negligence in his penalty assessment oa remand is

4

Rushford was not aware of the standard at issue because it did not have a copy of the
Code of Federal Regulations governing its mining operation. Tr. ID 109-10. Its office manager
testified that no one, including the mine owner, asked her to obtain a copy of the regulations. Tr.
III 111. ·
5

Section 110(c) cases are instructive because they involve allegations of aggravated
conduct. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). We have also held that
highly negligent conduct "suggests an aggravated lack of care" and unwarrantable failure.
Mettiki Coal Corp., 13 FMSHRC 760, 770 (May 1991) (citing E. Assoc. Coal Corp., 13
FMSHRC 178, 187 (Feb. 1991)).
793

"infected by plain error," the judge, in assessing a penalty of $4000, committed an abuse of
discretion. See US. Steel, 6 FMSHRC at 1432. We therefore vacate his penalty. 6
Having found that the judge committed legal errors in considering the section 11 O(i)
penalty criteria, we remand the matter for the assessment of a new penalty amount. However, we
leave undisturbed the following findings made by the judge on the six statutory penalty criteria.
As to the history of violations criterion, we affirm as supported by substantial evidence the
judge's findings on remand that the lack of history of violations was due to both MSHA's error
in classifying the mine as "closed" as well as to Rushford's failure to file the required quarterly
reports with MSHA. 22 FMSHRC at 1129. Accordingly, the lack of history of violations is
neither an aggravating nor a mitigating factor for penalty purposes. 7 With respect to the criteria
of size and good faith abatement, the judge found, and we affirm, that Rushford is a very small
operator, and demonstrated good faith in complying with the standard after the fatality. Id. at
1130-31. These two findings support some mitigation of the penalty. We also leave undisturbed
the judge's finding that a penalty as high as $25,000, the amount proposed by the Secretary,
would have no adverse effect on Rushford's ability to continue in business. Id. at 1131. This
finding on the ability to continue in business criterion does not weigh in favor of reducing the
proposed penalty. As discussed herein, the law of the case with respect to negligence is
controlled by the judge's finding from his original decision that the violation was a result of
"high and gross negligence." 22 FMSHRC at 77-78. This finding on the negligehce criterion

6

Because we have determined that the judge's penalty assessment was erroneous, we do
not reach the Secretary's additional arguments challenging that penalty.
7

We reject the judge's implication that the Commission should have declined review of
the Secretary's claim, that the lack of history of violations could not be a mitigating factor, on the
basis that it was a "new" theory, raised for the first time on review. 22 FMSHRC at 1128.
Under Mine Act section 11 O(i), the judge had to consider and address on the record before him
the history of violations penalty criterion. Sec '.Yon behalfofHannah v. Consolidation Coal Co.,
20 FMSHRC 1293, 1299-1303 (Dec. 1998) (holding that judge must consider all six penalty
criteria and ensure that a complete record is made on all criteria); 29 C.F.R. § 2700.69(a)
(requiring judge's decision to include "all findings of fact and conclusions oflaw, and the
reasons or bases for them, on all the material issues of fact, law or discretion presented by the
recorcf') (emphasis added). The record evidence before the judge showed that MSHA did not
inspect the mine from 1993 to 1998 and that the operator did not file quarterly reports during that
time. Tr. I 239-244, 263-276, 290-300; Tr. III 128. Mine Act section l 13(d)(2)(A)(iii), 30
U.S.C. § 823(d)(2)(A)(iii), proscribes appealing any question oflaw or fact to the Commission,
over which the judge was not afforded an opportunity to pass. Here, the judge had the
opportunity to pass on, and indeed decided, the issue of the impact of the lack of violations on
the penalty assessed, without any examination or discussion of why Rushford had not been
inspected for five years prior to the subject violation. 22 FMSHRC at 80. The issue was before
the judge and should have been addressed in his original decision and the Commission properly
requested the judge to re-examine it on remand.
794

serves as an aggravating factor for penalty purposes. We also affirm the judge's finding that the
violation, "which caused the death" of the Rushford employee in this case, was of high gravity.
22 FMSHRC at 1131. This gravity finding also serves as an aggravating factor for penalty
purposes. Id. Finally, we find Rushford's alleged ignorance about a protective device as well
known as stand-off inflation equipment, which is ubiquitious in any industry working with split
rim truck tires (Tr. I. at 420), truly remarkable and unfortunate. For the benefit of the entire
mining community, it is important to emphasize that, in this case, for the lack of a common and
inexpensive safety device, a miner died.
We thus remand the assessment of the amount of the penalty to the judge, the trier of fact
in the first instance. Sellersburg, 5 FMSHRC at 294.

III.
Conclusion
For the foregoing reasons, we vacate the judge's penalty assessment and remand for the
assessment of a civil penalty in accordance with this opinion.

F'/ZT /
Robert H. Beatty, Jr., Commissioner /

795

I

Distribution
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Thomas M. Murname, Esq.
Stafford, Trombley, Owens & Curtin
One Cumberland Avenue
P.O. Box 2947
Plattsburgh, NY 12901
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

796

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

August 22, 200 l

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

v.

Docket No. SE 2001 - 113

BLACK GOLD TRUCKlNG COMPANY

BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty, 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. (1994) ("Mine Act"). On May 3, 2001, the Commission received from Black Gold
Trucking Company ("Black Gold") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). In
a letter dated May 17, 2001, the Secretary of Labor informed the Commission that Black Gold
was cited in error in the above-captioned case and that the Secretary's proceeding against the
company in this matter has been terminated.
Because the underlying citation that gave rise to Black Gold's motion to reopen has been
terminated by the Secretary, we find the operator's motion to reopen moot.

797

Accordingly, Black Gold's motion to reopen is denied. ·

,.,.

,.
,.

798

Distribution
Mike Perry, Partner
Black Gold Trucking Company
80 Warrior Avenue
Sumiton, AL 35148
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

799

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

August 22, 2001

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2001-102

V.

SAN JUAN COAL COMPANY

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

ORDER
BY: Jordan and Beatty, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On February 8, 2001, the Department of
Labor's Mine Safety and Health Administration ("MSHA") received from San Juan Coal
Company ("San Juan Coal") the "green card" notice that the operator was requesting a hearing on
five alleged violations for which MSHA had proposed penalties. On March 26, 2001, the
Secretary of Labor filed a petition for assessment of civil penalties against San Juan Coal. The
operator failed to answer the Secretary's petition as required by 29 C.F.R. § 2700.29. On May
25, 2001, Chief Administrative Law Judge David F. Barbour issued an Order to Respondent to
Show Cause, directing San Juan Coal to file an answer within 30 days. On July 16, 2001, noting
that no answer had been filed, Judge Barbour issued an Order of Default, entering judgment in
favor of the Secretary and ordering San Juan Coal to pay civil penalties in the sum of $36,000.

Oi: August 2, 2001, San Juan Coal filed a petition for discretionary review and motion,
seeking relief in the form of an order vacating the Order of Default, reopening the proceedings,
and granting it additional time in which to respond to the petition for assessment of civil
penalties. It states that it has not completed its investigation into why it did not respond to the
penalty assessment petition and show cause order. PDR at 2. It notes, however, that, when it
sent its notice of contest to MSHA, it designated in-house counsel Charles Roybal as the
appropriate company official to contact. Id. at 2 and Ex. C. It contends that, although it received
800

the petition for assessment of civil penalties and the show cause order, the documents were not
sent to Roybal but to other company personnel. Id. at 3. It asserts that the person responsible for
forwarding such information assumed in error that Roybal had already received copies of the
documents and did not forward them to him. Id. It contends that Roybal only became aware of
the penalty assessment petition and the show cause order after the judge issued the default order.
Id. 1
It appears from the record that the penalty assessment petition and the show cause order
were sent to Carolyn Durga, senior safety advisor at San Juan Coal. Her name appears in the
operator's address (which is printed by MSHA) on the MSHA form used to contest penalty
proceedings. Attach. Ex. C. This information is generally obtained by MSHA from operators
pursuant to the requirements of one of its "notification of legal identity" regulations. 30 C.F.R.
§41.11.

The judge' s jurisdiction in this matter terminated when his decision was issued on July
16, 2001. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by filing a
petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem that San Juan's petition for discretionary review was timely filed and we
grant it.
We have observed that default is a harsh remedy and that, if the defaulting party can make
a showing of adequate or good cause for the failure to timely respond, the case may be reopened
and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC
1529, 1530 (Sept. 1995). On the basis of the present record, including San Juan Coal's statement
that it has not completed its investigation into why it did not respond to the petition for
assessment of civil penalties and the show cause order, we are unable to evaluate the merits of its
position. We are particularly puzzled about why, when Durga received the order to show cause
(which indicated that no answer had been filed responding to the Secretary's penalty petition),
she did not contact Roybal to be sure he had received the relevant documents.

In the interest ofjustice, we vacate the default order and remand this matter to the judge
to determine whether relief from the final order is appropriate. 2 See Middle States Res. , Inc., IO
FMSHRC 1130, 1130-31 (Sept. 1988) (remanding where show cause order was allegedly sent to

1

No affidavits were included with San Juan Coal's petition for discretionary review and

motion.
2

The judge, if he reopens the proceedings, should determine whether to grant San Juan
Coal's motion for additional time to respond to the penalty assessment petition.
801

a former corporate agent even though MSHA had allegedly b<::en given notice of the change in
agent); Agronics, Inc., 21 FMSHRC 475, 475-77 (May 1999) (remanding where the default order
was allegedly sent to the wrong company official).

71~ ;I!._ ~·-Mary Lu Jordan, Comfu1SSi011ef

Robert H . Beatty, Jr., Co

802

issioner

Chairman Verheggen and Commissioner Riley, concurring in·result:
We would grant the operator's request for relief here. San Juan Coal received a penalty
proposal and timely contested it, identifying Charles Roybal as the person on whom further
papers should be served. PDR ~ 3 and Ex. C (Roybal's name entered after the words " Company
Official To Contact" on form). Roybal was San Juan Coal's in-house counsel. PDR ~ 3. But
MSHA failed to serve.its penalty petition on Roybal. Id. and Ex.Bat 4. As a result, and because
of internal confusion at San Juan Coal (PDR ~ 3), the company failed to file a timely Answer to
the penalty petition, which in tum resulted in Judge Barbour issuing the default order at issue.
It is clear from the record that but for MSHA 's failure to serve the penalty petition on San
Juan Coal's in-house counsel, the company would have filed an Answer to the petition in a
timely fashion. Given that MSHA is partly responsible for the company being held in default, it
would be patently unjust to fail to grant San Juan Coal the opportunity to proceed with its contest
of the proposed penalty. Cf Stillwater Milling Co., 19 FMSHRC 1021(June1997) (reopening
proceeding in which operator mistakenly paid penalty because MSHA failed to serve proposed
penalty on operator' s attorney of record).
·
Our colleagues, however, inexplicitly prolong this proceeding by ordering a remand. It is
obvious what the judge will do - reopen the case based on the very facts we have before us. A
remand here is an utter waste of time and this Commission's resources. Nevertheless, in order to
avoid the effect of an evenly divided decision - i.e., the unjust result of the default order being
affirmed in result - we reluctantly join our colleagues in remanding the case. See Pa. Elec. Co.,
12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on other grounds, 969 F.2d 1501 (3d Cir. 1992)
(providing that the effect of a split Commission decision is to leave standing disposition from
which appeal has been sought).

Theodore F. Verheggen, Chai

803

Distribution

Charles W. Newcom, Esq.
Andrew W. Volin, Esq.
633 Seventeenth Street, Suite 3000
Denver, CO 80202
Charles E. Roybal, Esq.
San Juan Coal Company
300 West Arrington, Suite 200
Farmington, NM 87401
Susan Meyercord-Williams, Esq.
Office of the Solictor
U.S. Department of Labor
525 Griffin Street, Suite 501
Dallas, TX 75202
W. Christian Schumann, Esq.
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

804

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

August 22, 2001

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2001-108-M

v.

SHIRLEY LAND DEVELOPMENT INC.

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

ORDER

BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On April 20, 2001, the Commission received from Shirley
Land Development Inc. ("Shirley Land") a request to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In this case, Shirley Land did not timely submit its request for a hearing to the
Department of Labor's Mine Safety and Health Administration ("MSHA"). See 29 C.F.R.
§ 2700.26. In its motion submitted by Patricia R. Shirley, company president, it states that it
never received notice of the proposed penalty assessment from MSHA Mot. The operator was
issued Citation Nos. 6067035 and 6067036, dated June 15, 2000, for violations of 30 C.F.R.

805

§ 56.14107(a). Id., attachs. Shirley Land asserts that, having abated the alleged violations and
having received no notice of proposed penalties, it concluded that no penalties had resulted from
the citations. Mot. It contends that it was unaware of any penalties until it received a letter on
April 14, 2001, from MSHA informing it that the proposed penalties associated with the cited
violations had become final and that it was delinquent in payment of the penalties. Id., attachs.
Shirley Land requests that the Commission reopen this matter. Mot.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931 , 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l(b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp .. 18 FMSHRC 704, 705 (May 1996); Kinross
Delamar Mining Co. , 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC I 021, l 022-23 (June 1997).
.
On the basis of the present record, we are unable to evaluate the merits of Shirley Land's
position. In the interest ofjustice, we remand the matter for assigrunent to a judge to determine
whether relief from the final order is appropriate. See Idaho Minerals, 22 FMSHRC 130 I, 130103 (Nov. 2000) (remanding where operator alleged it did not receive proposed penalty
assessment); Bauman Landscape. Inc., 22 FMSHRC 289, 289-90 (Mar. 2000) (same). If the
judge determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert H. Beatty, Jr., CommiSlioner

806

Chairman Verheggen and Commissioner Riley, concurring in. result:
We would grant the operator's request for relief here, because the Secretary does not
oppose the motion for relief, the operator has offered a sufficient explanation for its failure to
timely respond, and no other circumstances exist that would render such a grant problematic.
However, in order to avoid the effect of an evenly divided decision, we join in remanding the
case to allow the judge to consider whether the operator has met the criteria for relief under Rule
60(b). See Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on other grounds, 969
F.2d 1501 (3d Cir. 1992) (providing that the effect of a split Commission decision is to leave
standing disposition from which appeal has been sought).

Theodore F. Verheggen,

d

~(!_. )C:_b~
James C. Riley, CommiSSir

807

Distribution
Patricia R. Shirley, President
Shirley Land Development, Inc.
1301 35 1h Avenue West
Bradenton, FL 34205
W. Christian Schumarni, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

808

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

August 22, 200 I

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2001-107-M

v.

CANTERA BRAVO INC.

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

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

§ 801 et seq. (1994) ("Mine Act"). On April 20, 2001, the Commission received from Cantera
Bravo Inc. ("Cantera") a request to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its request, Cantera, appearing pro se, asserts various reasons why the Department of

Labor's Mine Safety and Health Administration ("MSHA") should not have issued the citations
(Citation Nos. 07797264, 07797265, 07797266, and 07797267) against it that resulted in the
penalty ~ssessment at issue. Mot. It requests that the penalties be dropped but offers no
explanation for its failure to timely file a request for a hearing. Id.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res .. Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
809

party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l (b) ('•the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater lvfining Co., 19
FMSHRC 1021 , 1022-23 (June 1997).
On the basis of the present record, we are unable to evaluate the merits of Cantera' s
position. In the interest of justice, we remand the matter for assignment to a judge to determine
whether Cantera has met the criteria for relief under Rule 60(b). See Collier Stone, 22 FMSHRC
483, 483-84 (Apr. 2000) (remanding to judge where pro se operator offered inadequate
explanation for its failure to file a timely request for a hearing); Bailey Sand & Gravel Co., 20
FMSHRC 946, 946-47 (Sept. 1998) (remanding to judge where prose operator offered no
explanation for its failure to contest the penalty assessment). If the judge determines that such
relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

rdan, Commissioner

./

.

Robert H. Beatty, Jr., Comm1ss1oner _

810

Chairman Verheggen and Commissioner Riley, concurring in result:
We would grant the operator's request for relief here. First, we note that the Secretary
does not oppose Cantera's motion. We also note that Cantera is proceeding prose, and the
Commission has always held the pleadings of pro se litigants to less stringent standards than
pleadings drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Because Cantera, which is located in
Puerto Rico, submitted its motion to reopen in Spanish (subsequently translated into English),
language factors may have contributed to its failure to fully explain why it did not file a timely
request for a hearing. Nor do we find any other circumstances that would render a grant of relief
here problematic. Under these circumstances, we thus fail to see the need or utility for
remanding this matter.
Nevertheless, in order to avoid the effect of an evenly divided decision, we join our
colleagues in remanding the case. See Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990),
aff'd on other grounds, 969 F.2d 150 I (3d Cir. 1992) (providing that the effect of a split
Commission decision is to leave standing disposition from which appeal has been sought).

Theodore F. Verheggen, Chai

811

Distribution
Elias Oritz Rodriguez
Cantera Bravo, Inc.
P.O. Box 890
Cabo Rojo, PR 00623
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

812

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

August 22, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION.(MSHA)
v.

Docket No. LAKE 2001-154-M

CARRI SCHARF MATERIALS,
COMPANY

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

ORDER

BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (1994) ("Mine Act"). On April 25, 2001, the Commission received from Carri
Scharf Materials, Company ("Carri Scharf') a request to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In this case, Carri Scharf did not timely submit its request for a hearing to the Department
of Labor's Mine Safety and Health Administration ("MSHA"). See 29 C.F.R. § 2700.26. In its
prose motion, it contends that it never received the proposed penalty assessment (Control No.

813

11-03013-05509) from MSHA. 1 Id. Carri Scharf also challenges the merits of one of the orders
associated with the proposed penalty assessment (Order No. 7827502), stating that the
information contained in the order is not accurate, and that there is new information pertaining to
the case. It asserts that the civil penalty amount of $7259 is absurd and that another proposed
penalty assessment (Control No. 11-03013-05508), for the amount of$1600, was issued to it and
pertains to the present case. Id. Carri Scharf requests that the Commission reopen this matter.
Id.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l (b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).

1

Carri Scharf attached to its motion a copy of a certified mail receipt showing that the
proposed penalty assessment was sent by MSHA to Carri Scharfs P.O. box address but was
retU1J1ed to the agency undelivered. Mot., attachment.
814

On the basis of the present record, we are unable to evaluate the merits of Carri Scharfs
position. In the interest of justice, we remand the matter for.assignment to a judge to detennine
whether relief from the final order is appropriate. See Idaho Minerals, 22 FMSHRC 1301, 130103 (Nov. 2000) (remanding where operator alleged it did not receive proposed penalty
assessment); Bauman Landscape, Inc., 22 FMSHRC 289, 289-90 (Mar. 2000) (same). If the
judge detennines that such relief is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Robert H. Beatty, Jr., Commissioner

815

Chairman Verheggen and Commissioner Riley, concurring in.result:
We would grant the operator's request for relief here, because the Secretary does not
oppose the motion for relief, the operator has offered a sufficient explanation for its failure to
timely respond, and no other circumstances exist that would render such a grant problematic.
However, in order to avoid the effect of an evenly divided decision, we join in remanding the
case to allow the judge to consider whether the operator has met the criteria for relief under Rule
60(b). See Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on other grounds, 969
F.2d 1501 (3d Cir. 1992) (providing that the effect of a split Commission decision is to leave
standing disposition from which appeal has been sought).

Theodore F. Verheggen, Ch

816

Distribution
Joseph A. Scharf
Carri Scharf Materials Company
P.O. Box 305
Bloomington, IL 61702
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
1730 K Street N.W., Suite 600
Washington, D.C. 20006

817

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

August 22, 2001

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2001-61-M

V.

BAKER SLATE, INC.

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

ORDER

BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On May 29, 2001 , the Commission received from Baker
Slate, Inc. ("Baker Slate") a request to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section IOS(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S .C. § 815(a).
In._this case, Baker Slate did not timely submit its request for a hearing to the Department
of Labor' s Mine Safety and Health Administration ("MSHA"). In its prose motion, it states that
it was advised by others in the slate industry to first contact Donald Corp ofMSHA regarding the
matter. Mot. It asserts that when it finally contacted him, after three weeks of attempting to do
so, Corp said that he was no longer handling the matter and advised Baker Slate to call the
MSHA telephone number printed on the proposed assessment. Id. Baker Slate contends that it
called the MSHA number and was told to send a note and other documents to MSHA. Id. It
818

asserts that it did not do so because it was concerned that the documents might become lost. Id.
It further asserts that, after a few days, it contacted an attorney who sent a letter to MSHA
requesting a hearing on its behalf. Id. MSHA responded to the letter on May 17, 2001,
informing Baker Slate that its hearing request was untimely and that the order had become final
on April 21, 200 l. Baker Slate requests that the Commission reopen this matter. Id.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Waiter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a sho\ving of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l(b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).
On the basis of the present record, we are unable to evaluate the merits of Baker Slate's
position. In the interest of justice, we remand the matter for assignment to a judge to determine
whether relief from the final order is appropriate. See Dean Heyward Addison, 19 FMSHRC
681, 682-83 (Apr. 1997) (remanding to judge to determine whether asserted lack of familiarity
with Commission procedures met criteria for relief under Rule 60(b)); Peabody Coal Co., 16
FMSHRC 2030, 2030-31 (Oct. 1994) (remanding to judge where failure to timely submit a
hearing request was allegedly due to operator's confusion about Commission procedures). If the
judge determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

•

/°?7._....7=="""":,-.--z;r-/
Robert H. Beatty, Jr., Commiss· ner

819

. . . . . . . . • .1

#

Chairman Verheggen and Commissioner Riley, concurring in ·result:
We would grant the operator's request for relief here, because the Secretary does not
oppose the motion for relief, the operator has offered a sufficient explanation for its failure to
timely respond, and no other circumstances exist that would render such a grant problematic.
However, in order to avoid the effect of an evenly divided decision, we join in remanding the
case to allow the judg~ to consider whether the operator has met the criteria for relief under Rule
60(b). See Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on other grounds, 969
F.2d 1501 (3d Cir. 1992) (providing that the effect of a split Commission decision is to leave
standing disposition from which appeal has been sought).

Theodore F. Verheggen, Chai

820

Distribution
John R. Winn, Esq.
13 North Street
Granville, NY 12832

W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
1730 K Street N.W., Suite 600
Washington, D.C. 20006

821

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

August 23, 2001
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos.

CENT 2000-65
CENT 2000-80

GEORGES COLLIERS, INCORPORATED

BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty, Commissioners
DECISION
BY THE COMMISSION:
In this consolidated civil penalty proceeding arising under the Federal Mine Safety and
Health Act, 30 U.S.C. § 801 et seq. ("Mine Act"), Administrative Law Judge Gary Melick
assessed penalties in the amount of $3713 against Georges Colliers, Inc. ("GCI"). 22 FMSHRC
l 091, 1093-94 (Sept. 2000) (ALJ). GCI filed a petition for discretionary review ("PDR")
challenging the judge's penalty assessments, which was granted. For the reasons set forth below,
we vacate the judge's penalty assessments and remand for reassessment.
I.
Factual and Procedural Background
On September 10, 1999, the Secretary proposed penalties in the amount of$4896 for 18
citations and one section 104(b) order in Docket No. CENT 2000-65, and on September 16, she
proposed penalties in the amount of $1255 for 10 citations in Docket No. CENT 2000-80. GCI
contested each of the proposed assessments, which together totaled $6151. The Secretary then
filed with the Commission petitions for assessment of penalties. Subsequently, the proceedings
were consolidated. The parties agreed that the only issue in dispute was the effect of the
penalties on GCI's ability to continue in business. A hearing was held on this issue on April 13,
2000.
At the hearing, GCI presented evidence of its financial condition, including audits, signed
tax returns, letters from contract purchasers of coal indicating that GCI was unable to meet
822

production, letters from the holder of a secured note that GCI was in default, a list of outstanding
delinquent unsecured debtors, and detailed testimony of an expert witness in support of its
position that the penalties would affect its ability to continue in business. In addition, the judge
instructed the parties to submit joint stipulated facts on the remaining penalty criteria.
While the parties were negotiating a joint stipulation of facts, they discovered that the
Secretary had incorrectly determined GCI's history of violations. On August 14, 2000, the
Secretary submitted to the judge amended proposed stipulations stating that GCI's violations
history included 277 violations. S. Am. Proposed Stips. of Fact at 1. GCI disputed this
calculation and the parties subsequently stipulated to a lower number of violations (218).
Jt. Stips. of Fact at l. As a result, the Secretary reduced the total proposed assessments. Letter
dated Sept. 15, 2000 from Sec'y of Labor. On September 11, 2000, the parties submitted the
joint stipulations, which included a reduction of the proposed penalty assessments from $4896 to
$2819 in Docket No. CENT 2000-65, and from $1255 to $894 in Docket No. CENT 2000-80, for
a total of $3713. 1
The judge issued his decision on September 20, 2000. In his decision, he declined to
consider "numerous financial records and extensive unrebutted factual and expert testimony"
submitted by GCI at the hearing, stating that the evidence was "no longer relevant" due to the
reduced proposed assessments. 22 FMSHRC at 1092. The judge also relied on the passage of
time between April 2000, when the evidence was submitted at the hearing, and September 2000,
when the parties submitted the joint stipulations to the judge, and the fact that GCI no longer
operated the mine which was the subject of the violations. Id. at 1092-93. The judge assessed
penalties totaling $3713. Id. at 1093-94. To minimize the financial impact of the penalty
assessments, the judge directed GCI to make an initial payment of $113 on November 1, 2000,
followed by equal payments of $150 on the first of each month for the succeeding 24 months. Id.
at 1093.

1

While the judge stated in his decision that the Secretary's total reduced proposed
assessment in both dockets was $3767, he assessed penalties totaling only $3713 without
explaining his reduced assessment. 22 FMSHRC at 1091 & n.l, 1093-94. It appears that the
discrepancy arises from inconsistent figures provided by the Secretary. The joint stipulations
provided that the proposed assessment in Docket No. CENT 2000-80 was $948.
Jt. Stip. of Facts at l. However, in a letter from the Secretary's counsel to the judge, the
Secretary listed the revised, along with the original, proposed assessments for each violation,
indicating that the total revised proposed assessment in Docket No. CENT 2000-80 was $894.
Letter dated Sept. 15, 2000 from Sec'y of Labor. This amount is consistent with the judge's
assessment. 22 FMSHRC at 1093-94.
823

II.
Disposition
GCI argues that the judge abused his discretion when he declined to consider evidence of
GCI's financial condition. PDR at 8-13.2 GCI maintains that substantial evidence establishes
that it was "insolvent" and, therefore, that the penalties would affect its ability to continue in
business. PDR at 9, 12°; G. Reply Br. at 5. GCI asserts that the judge committed a prejudicial
procedural error by not allowing it an opportunity to demonstrate that the Secretary's reduced
penalties would still affect its ability to continue in business, or to supplement or update evidence
of its financial condition. PDR at 14-15; G. Reply Br. at 6-7. GCI clarifies that although its
expert witness testified that it could pay the penalty, he indicated that it would have to forego
payment to another debtor which would affect its operations at the mine. G. Reply Br. at 5. GCI
requests the Commission to vacate the judge's penalty assessments and remand for consideration
of its financial evidence. PDR at 16-17; G. Reply Br. at 9.
The Secretary responds that the judge did not abuse his discretion by assessing penalties
in the amount of $3713. S. Br. at 10. The Secretary contends that GCI was not prejudiced by the
judge' s decision, because GCI's evidence did not establish that the proposed assessment of
$6151 would affect its ability to continue in business and, thus, could not have satisfied its
burden of proof for an even lower proposed assessment amount ($3 713 ). Id. at 6-7. The
Secretary asserts that the judge did not err by failing to provide GCI an opportunity to respond,
because it was aware of the reduced proposed assessments in the joint stipulations, and could
have filed a motion for leave to submit additional evidence before the judge issued his decision.
Id. at 8-9. The Secretary points out that, in any event, GCI conceded at the hearing that a penalty
in the amount of $3600 paid by amortized payments would not affect its ability to continue in
business. Id. at 9-10. The Secretary requests that the Commission affirm the judge's decision.
Id. at 10.
The Commission's judges are accorded considerable discretion in assessing civil
penalties under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). Such
discretion is not unbounded, however, and must reflect proper consideration of the penalty
criteria set forth in section 1 lO(i) and the deterrent purpose of the Act. 3 Id. (citing Sellersburg

2

GCI designated its PDR as its opening brief.

3

.? ection 11 O(i) sets forth six criteria to be considered in the assessment of penalties
under the Act:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5) the
824

Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983), ajf'd, 736 F:2d 1147 (7th Cir. 1984)). The
judge must make "[f]indings of fact on each of the statutory criteria [that] not only provide the
operator with the required notice as to the basis upon which it is being assessed a particular
penalty, but also provide the Commission and the courts ... with the necessary foundation upon
which to base a determination as to whether the penalties assessed by the judge are appropriate,
excessive, or insufficient.'' Sellersburg, 5 FMSHRC at 292-93. Assessments "lacking record
support, infected by pl_a in error, or otherwise constituting an abuse of discretion are not immune
from reversal." US. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). In reviewing a judge's
penalty assessment, the Commission must determine whether the judge's findings with regard to
the penalty criteria are in accord with these principles and supported by substantial evidence.4
Evidence of an operator's financial condition is relevant to·the ability to continue in
business criterion. See Unique Electric, 20 FMSHRC 1119, 1122-23 (Oct. 1998) (considering
evidence of an operator's financial condition to determine whether the penalty would have an
effect on the operator's ability to continue in business); Spurlock Mining Co., 16 FMSHRC 697
(Apr. 1994) (same); Broken Hill Mining Co., 19 FMSHRC 673, 677-78 (Apr. 1997) (same).
One basis for the judge's refusal to consider GCI's financial evidence was his conclusion
that the evidence was no longer relevant due to the passage of time. The evidence submitted by
GCI covered its financial condition from 1996 up to the first quarter of 2000. The judge issued
his decision on September 20, 2000, five months after the hearing. Notably, the Secretary does
not attempt to defend the judge's refusal to consider the financial evidence submitted by GCI at
the hearing or contend that the evidence is irrelevant. In fact, the Secretary appears to concede
the relevance of GCI' s financial evidence by arguing that even if the judge considered the
evidence, it could not successfully prove that the penalties would affect GCI's ability to continue
in business. We conclude that the passage of time did not make GCI's evidence of its financial
condition irrelevant. It is not uncommon to have a gap in time between the hearing and the
issuance of the judge's decision. However, this does not render irrelevant financial evidence

gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 u.s.c. § 820(i).
4

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 1LFMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
825

introduced to support (or refute) an argument that the proposed penalty would affect the
operator's ability to continue in business. 5
We also reject the judge's reliance on the Secretary's post-hearing reduction of the
proposed penalty assessments as support for his refusal to consider the evidence of GCI's
financial condition. We find that the evidence of GCI's financial condition as of the time of the
hearing consists of fac~ual data which is unaffected by the Secretary's reduced proposed
assessment. For example, GCfs expert witness, Paul Matlock, in summarizing the import of the
financial documents it submitted, including audits and tax returns, testified that GCI was not
"solvent." Tr. 39. Matlock stated that "[GCI] would be [insolvent] if the forbearance [on its
debt payments] was not given," and that GCI has "no guarantee" that the forbearance will
continue. Tr. 12-13, 39. He further testified that GCI was "behind on . .. production taxes, .. .
royalties, ... [and] utilities," and asserted that "anything we pay outside that are not considered
critical production items, we would have to trade out for production items, which basically would
cause us to have to shut down production." Tr. 25, 27-29. Under this view, it appears that a
penalty assessed at $6000 would have the same impact on GCI as a penalty of$3000.
On the other hand, Matlock also testified, in response to the judge' s questioning, that GCI
could pay $100 per month over three years, but that GCI ''would have to take $100 out of our
production," which would affect "operations." Tr. 41. The Secretary characterizes Mattock's
equivocal testimony as a concession that GCI could pay penalties totaling $3600. While we take
no position on the Secretary' s characterization, the financial evidence of record is clearly relevant
to the reduced proposed assessments. Although it was appropriate for the judge to consider the
reduced penalty when evaluating the ability to continue in business criterion, we conclude that
the financial data submitted at the hearing is still televant to consider in relation to the reduced
proposed assessments.
Commission Procedural Rule 69(a) requires that a Commission judge' s decision "shall
include all findings of fact and conclusions oflaw, and the reasons or bases for them, on all the
material issues of fact, law or discretion presented by the record." 29 C.F.R. § 2700.69(a). The
Commission thus has held that a judge must analyze and weigh all probative record evidence,
make appropriate findings, and explain the reasorts for his or her decision. Mid-Continent Res. ,
Inc., 16 FMSHRC 1218, 1222 (June 1994). Here~ the judge failed to evaluate evidence of GCI's

5

J'he fact that the operator no longer operates the mine in question does not render the
"ability to continue in business" criterion irrelevant. Even if the operator no longer operates the
mine that is the subject of this proceeding, it will remain subject to a penalty if it is still in
business, has not dissolved, and has assets. See Spurlock Mining, 16 FMSHRC at 699-:700
(holding that the operator was still in business because it had not dissolved and planned to
resume operations). Thus, the judge erred when he declined to consider GCI's evidence on this
basis.

826

financial condition in making findings as to whether the proposed penalty would adversely affect
·
its ability to continue in business.6
Accordingly, we conclude that the judge abused his discretion when he declined to
consider GCI's evidence. We vacate the judge's penalty assessment and remand this proceeding
to the judge for consideration of all relevant evidence of GCI's financial condition, including any
evidence with which the judge may, in his discretion, allow the parties to supplement the record.
See Secy of Labor on ·b ehalfof Hannah v. Consolidation Coal Co., 20 FMSHRC 1293, 1302
(Dec. 1998) ('"it is within the province of the judge to ensure that the record contains sufficient
information on all the statutory criteria").
Ill.

Conclusion
For the foregoing reasons, we vacate the judge's penalty assessments and remand this
proceeding to the judge to reassess penalties consistent with this decision.

Theodore F. Verheggen, Ch

u Jordan, Co

-· --.z: (

/.::::- · J

Robert H. Beatty, Jr., Commissio r

6

We reject the Secretary's suggestion that the Commission consider the merits of
whether GCI's financial evidence satisfies its claim that the penalty affects its ability to continue
in business. That issue is for the judge, as the trier of fact, to consider in the first instance.

827

Distribution
Elizabeth M . Christian, Esq.
7940 Pipers Creek Rd., # 1812
San Antonio, TX 78251
Tina Peruzzi, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

828

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

August 30, 2001
SECRETARY OF LABOR
Docket No. WEV A 98-39

v.

EAGLE ENERGY INC.

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

DECISION

BY: Riley and Beatty, Commissioners ·
In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge Jerold
Feldman determined that Eagle Energy Inc. ("Eagle Energy") committed a significant and
substantial ("S&S") 1 violation of 30 C.F.R. § 75.380(d)(l)2 when water accumulations occurred
in an escapeway. 21FMSHRC 1235, 1244-46 (Nov. 1999) (ALJ). He found that the violation
was not caused by the operator's unwarrantable failure. Id. at 1251 . The judge assessed a
penalty of$2,500. Id. The Commission granted the Secretary of Labor's petition for
discretionary review challenging the judge's finding of no unwarrantable failure. For the
following reasons, we vacate the judge' s unwarrantable failure determination and penalty
assessment, and remand for further consideration.

1
•

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
2

Section 75.380(d)(l) provides, in pertinent part: "(d) Each escapeway shall be( 1) Maintained in a safe condition to always assure passage of anyone, including disabled
persons . ... " 30 C.F.R. § 75.380(d)(l).
829

I.
Factual and Procedural Background
Eagle Energy owns and operates Mine No. l, an underground coal mine in Boone
County, West Virginia. 21 FMSHRC at 1238; Gov' t Ex. 2. Mine No. 1 is an extremely wet
mine with recurring water accumulation problems. 21 FMSHRC at 1236. Watet flows down to
the mine from the surface and seeps in from an adjacent abandoned mine which is inundated with
water. Id. at 1238. Over 100 pumps have been used throughout the mine. Id. at 1236.
Production director John Adkins testified that approximately 5 million gallons of water were
pumped out every day and that water rapidly collected at locations of chronic accumulations. Id.
at 1245; Tr. IV 141. 3
Eagle Energy developed the 10 Left Section of the mine with three parallel entries using a
continuous miner. 21 FMSHRC at 1238; Gov't Ex. 32. While the continuous miner was
advancing in the section, the No. 1 entry was the return air entry, the No. 2 entry served as the
beltline and track entry, and the No. 3 entry was the primary escapeway and intake air entry. 21
FMSHRC at 1238. The operator installed an incoming six-inch diameter fresh water line in the
No. 2 belt/track entry to bring fresh water to the working face and to provide fire protection along
the beltline. Id. The three entries were separated by stoppings. Id. While the 10 Left Section
was in production, water was removed from the section by pumping it onto the beltline through
discharge hoses. Id. The water was absorbed by the coal on the beltline and carried to the
surface. Id.
On July 9, 1997, Eagle Energy completed mining in the 10 Left Section and temporarily
suspended production in anticipation of bringing in the longwall from another section of the
mine. Id. On that same day, the continuous miner in the l 0 Left Section was removed and Eagle
Energy began dismantling the beltline to move it from the No. 2 entry to the No. 1 entry of the 10
Left Section. Id. By dismantling the beltline, Eagle Energy could no longer use it to pump water
out of the section. Id.
On July 10, 1997, Inspector Albert "Benny" Clark of the Department of Labor's Mine
Safety and Health Administration ("MSHA") began an inspection of the mine. Id. He traveled
to the No. 3 escapeway entry of the 10 Left Section to determine if Citation No. 7160006 issued
by MSHA Inspector Andrew Nunnery on June 24, 1997, should be terminated. Id. Citation No.
7160006 had cited a non-S&S violation of section 75.380(d)(l) for water accumulations in the IO
Left escapeway ranging "in depth from l" to 14" with slick and muddy bottom at crosscut 49 to
48 for a djstance of approx. 100 feet." Id.; Gov't Ex. 29. Nunnery had characterized Eagle
Energy's degree of negligence as "moderate." 21 FMS.HRC at 1238. When Nunnery issued the

3

The transcript contains a separate volume for each day of the six day hearing.
Transcript references note the appropriate hearing day by Roman numeral I through VI followed
by the page number of the transcript for that day's hearing.

830

citation, normal mining operations were in progress and the beltline was operational and
available for removing water from the escapeway. Id.
During his inspection, Clark found there was water at the same location cited in Citation
No. 7160006. Id. at 1239. Believing it was the same water cited by Nunnery, Clark issued
104(b) Order No. 7163178 on July 10, 1997, for Eagle Energy's alleged failure to abate Citation
No. 7160006. Id. However, 104(b) Order No. 7163178 was subsequently vacated on procedural
grounds by an MSHA conference officer. Id.; Tr. III 18.
Also on July 10, Inspector Clark found water accumulations between 1 and 24 inches in
depth for a distance of 200 feet between the 69 and 71 crosscuts in the 10 Left escapeway. 21
FMSHRC at 1239. He issued Citation No. 7163177 for an S&S violation of section 75.380(d)(l)
for the accumulations. Id. Clark testified that he believed the violation was due to Eagle
Energy's unwarrantable failure because there were notations in the weekly examination book of
similar water accumulations in the same area for the preceding five weeks. Id. ; Tr. III 12-15.
However, Clark testified that he was persuaded by safety director Jeffrey Bennett and then
superintendent Stan Edwards to issue Citation No. 7163177 as a 104(a) citation rather than an
unwarrantable 104(d) citation because of their assurances that future escapeway water problems
would be prevented. 21 FMSHRC at 1239.
Despite Eagle Energy's assurances about improving its water problems, it was apparent
that it could not abate Citation No. 7163177 because it had dismantled the beltline which it used
to discharge water in the 10 Left escapeway. Id. At Inspector Clark's suggestion, Eagle Energy
converted the section' s fresh water line to a discharge line to deal with the water accumulations.
Id. On July 11, Clark terminated Citation No. 7163177 after the cited water accumulations had
been discharged through the newly converted discharge line. Id.
On August 13, while continuing his inspection, Clark found water accumulations in the
10 Left escapeway measuring 1 to 15 inches in depth with a slick and muddy bottom and
extending for 220 feet between crosscuts 97 to 99. Id. at 1240. He issued Citation No. 7163218
for an S&S violation of section 75.380(d)(l) for the water accumulations. Id. He did not
designate the violation unwarrantable. On August 14, the citation was terminated after the water
was pumped and discharged through the converted discharge line. Id.
From August 30 through September 1 (Labor Day weekend), hourly workers did not work
at the mine. Id. Instead, it was staffed by 20 to 30 management personnel who had decided to
complete the longwall move on their own. Id. At approximately 4:00 p.m. on August 31 , the
converted discharge line was changed back to a fresh water line to facilitate the impending
longwall operation. Id. According to Eagle Energy, the fresh water line was needed to power up
the longwall ' s shields, for dust suppression, and could not be turned back to a discharge line
without interfering with the longwall start-up schedule. Id.

831

On September 1, Eagle Energy started the beltline but ·i t pulled apart at several locations
and had to be repaired. Id. At approximately 7:00 a.m. on September 2, Eagle Energy again
attempted to start the beltline but it again pulled apart at several locations. Id.
At approximately 8:30 a.m. on September 2, Inspector Clark arrived at the mine,
accompanied by MSHA Supervisor Terry Price, to continue the inspection. Id. After reviewing
the preshift and onshi~ books, Clark and Price traveled to the 10 Left Section, accompanied by
safety director Bennett. Id. Upon arriving in the 10 Left Section, Clark and Price noted general
damp and wet conditions and that the No. 1 belt entry had several water accumulations and was
generally damp; the No. 2 track entry also contained several areas of water accumulations, soft
ribs, and an·uneven bottom in several places; and the No. 3 escapeway entry was damp to wet,
had several water accumulations, loose ribs at different locations, and an uneven bottom in some
locations. Id.; Tr. III 83-84.
At crosscut 70 in the No. 2 track entry, the inspection party found a large water
accumulation, which extended into the crosscut right up to the stopping between the track entry
and the No. 3 escapeway entry. 21 FMSHRC at 1241. Based on the amount of water he
observed at the 70 crosscut in the track entry, Inspector Clark concluded that there would also be
water at the 70 crosscut in the No. 3 escapeway entry. Id.
Using the nearest mandoor between the two entries, the inspection party traveled to the 70
crosscut in the No. 3 escapeway and Clark observed a water accumulation at the crosscut
extending from rib to rib and approximately 110 feet long and up to at least 15 inches deep. Id.
The inspection party started walking the No. 3 escapeway in an outby direction. Id. At crosscut
60, Clark observed another water accumulation extending from rib to rib that was approximately
90 feet long and up to at least 15 inches deep. Id. Between crosscuts 51 and 52, Clark observed
a water accumulation extending from rib to rib that was approximately 40 feet long and up to at
least 12 inches deep. Id. Finally, in the vicinity of crosscuts 48 and 49, Clark observed a water
accumulation approximately 120 feet long and up to at least 15 inches deep. Id. at 1242. Clark
found that all the water accumulations were characterized by muddy water, slick bottoms, and the
presence of loose coal. Id.; Gov't Ex. 26.
Once the inspection party arrived on the surface, Clark checked the weekly examination
books and found reports, dated August 15, 22, and 29, of water accumulations in the 10 Left
escapeway. 21 FMSHRC at 1242. However, he did not find any indication in the examination
reports that remedial action (i.e., pumping) had been taken to correct the hazardous conditions.
Id. The judge credited Clark's testimony that he had previously warned Eagle Energy about
failing to show remedial action in its weekly examination books. Id. at 1251 n.8. Clark
concluded that no remedial action had been taken in the 10 Left escapeway since the water
accumulations had been reported in the examination books on August 15, 22, and 29. Id. at
1242. His conclusion was based, in part, on his finding that, when water accumulations in other
sections were reported in the weekly examination books, they were accompanied by reports of
remedial action, such as "being pumped" or "pumped down." Id. Production director Adkins
832

and superintendent Harry Walker testified that pumps were used to discharge the water
accumulations in the 10 Left escapeway until the discharge line was converted back to a fresh
water line at 4:00 p.m. on August 31. Id. at 1243; Tr. IV 167-70; Tr. V 100-01.
Based on his observations, Inspector Clark issued a 104(d)(l) citation (No. 7163242),
alleging an S&S violation of section 75.380(d)(l) due to the water accumulations in the 10 Left
escapeway. 21 FMSHRC at 1243. He found that the violation resulted from Eagle Energy's
unwarrantable failure because it was aware of the water accumulations, it had been warned
previously about water accumulations in its escapeways, there was no evidence that remedial
actions had been taken, and it had a history of previous violations for the same violative
condition. Id. Eagle Energy contested the finding of the violation, the S&S and unwarrantable
failure designations, and the proposed penalty.
Following a hearing, the judge found an S&S violation of section 75.380(d)(l) by Eagle
Energy for the water accumulations in the 10 Left escapeway. Id. at 1244-46. He concluded that
the violation was not unwarrantable because the Secretary did not demonstrate the operator's
longstanding failure to eliminate the cited accumulations. Id. at 1247-48. The judge suggested
that the MSHA inspector undercut his unwarrantable failure designation by attributing the
violation to the operator's "high degree of negligence" rather than its "reckless disregard." Id. at
1~48. He also determined that the operator's actions were mitigated because (1) it had no means
of discharging the water at the time of the cited violation; (2) the Secretary had not found a
similarly cited violation in the past to be unwarrantable; (3) the mine was only staffed by
management personnel at the time of the cited violation (Labor Day Weekend); and (4) roof falls
requiring the attention of mine management occurred at the mine prior to the cited violation. Id.
at 1249-50.
II.

Disposition
The Secretary argues that the judge erred in determining that the operator's negligence
was mitigated because there was no means for discharging water in the cited escapeway from
August 31 to September 2. S. Br. at 11-18. She contends that the judge also erred in basing his
negative unwarrantability conclusion on the ground that MSHA did not cite a similar violation as
unwarrantable in the past. Id. at 18-19. The Secretary also contends that the judge erroneously
grounded his conclusion of no unwarrantable failure on the fact that the inspector checked off the
"high negligence" box instead of the "reckless disregard" box on the citation form. Id. at 19-20.
Further, she argues that the judge improperly discounted the operator's history of similar
violations because the mine was a wet mine. Id. at 21-24. In addition, the Secretary contends
that the judge failed to properly consider the operator's prior discussions with MSHA about the
need for greater compliance. Id. at 24-25. She further contends that the judge inadequately
addressed evidence concerning whether the water accumulations were the same as accumulations
noted previously in the operator's examination books. Id. at 25-28. The Secretary asserts that
833

the judge erred in concluding that the operator's negligence was mitigated because only
management personnel worked on the Labor Day Weekend when the violation at issue occurred,
and in determining that roof falls at the mine were a mitigating factor. Id. at 28-30. Finally, the
Secretary contends that the judge failed to consider the various unwarrantable failure factors
taken together. Id. at 30-32.
Eagle Energy r~sponds that the judge's finding of no unwarrantable failure is supported
by substantial evidence. EE Br. at 2. It contends that there are no regulatory requirements
supporting the Secretary's assertion that Eagle Energy should have established an additional
method for discharging water or determined that the beltline was fully operational before it
disconnected its discharge water line. Id. at 12. lt argues that substantial evidence supports the
judge's determination that it had no reason to expect that the water would accumulate to
hazardous depths before it planned to resume pumping. Id. The operator contends that, contrary
to the Secretary's assertion, an unwarrantable failure finding requires more than a showing that
the operator failed to avoid a violation about which it "knew or should have known." Id. at 1213.
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.

§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 13, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure
test).
Whether conduct is "aggravated" in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist,
such as the length of time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
the operator' efforts in abating the violative condition, whether the violation is obvious or poses a
high degree of danger, and the operator's knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000), appeal docketed, No. 01-1228 (4th
Cir. Feb. 21, 2001) ("Consof'); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998),
rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30,
34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44
(Aug. 1992); Quin/and Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts
and circumstances of each case must be examined to determine if an actor's conduct is
aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.

834

A.

Unwarrantable Failure Factors
l.

Efforts to Abate the Violative Condition

We conclude that the judge failed to adequately consider whether, apart from pumping
water on to the reassembled beltway or through the converted discharge line, there was another
way of discharging water from the escapeway before the longwall was put into operation.
Inspector Clark testified that the operator could have discharged water from the escapeway by
running a discharge line, up to 1,000 feet in length, from the escapeway to a discharge source in
the Mudlick Mains, another section of the mine. Tr. V 290-91. The judge found that, after
discussing the possibility with management, the inspector concluded that 1,000 feet was too great
a distance to run a discharge line. 21 FMSHRC at 1239. The judge quoted the inspector as
testifying: "We discussed if we could run it over to Mudlick, and there was no way. It was too
far." Id.; Tr. ill 90. However, it is not clear from this testimony whether the inspector concluded
that it was too far or whether he was only reporting management's response that it was too far.
On a subsequent day of the hearing, the inspector testified that it was management that responded
that it was too far to run a discharge line to the Mudlick Mains. Tr. V 291-92. He also testified
that the operator should have run a discharge line from the escapeway to the Mudlick Mains
when it converted the ·discharge line back into a fresh water line prior to restarting the beltway.
Tr. V 295-99. Based on the evidence, it does not appear that substantial evidence4 supports the
judge's finding that it was impractical to run a discharge line from the escapeway to the Mudlick
Mains.
We further conclude that the judge erred in finding that Eagle Energy's failure to pump
water out of the escapeway from the afternoon of August 31 to the afternoon of September 2 was
mitigated because it did not have a means for pumping out the water. 21 FMSHRC at 1250. The
operator lacked a way to pump out water because it had disconnected both its primary and
secondary means of discharging water in order to facilitate its longwall move. 5 There is no

4

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 ( 1938)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Midwest Material, 19 FMSHRC at 34 n.5 (quoting Universal Camera Corp.
v. NLRB, 340 U.S. 474, 488 (1951)).
5

When Eagle Energy dismantled the beltline on July 9, 1997, it did so with no apparent
thought to an alternative means of disposing of escapeway water until the beltline would be
reassembled after the longwall move. When this oversight resulted in a citation, Eagle Energy
w~ the fortuitous benefactor of an inspector's insightful suggestion to convert the fresh water
835

evidence why the operator could not have reassembled the beltline and had it in operating
condition before it reconverted the discharge line back to a fresh water line. The record evidence
also does not refute the possibility that the operator could have run an additional discharge line to
the surface, as it did with the existing fresh water line.
Despite the chronic water accumulation problems in the escapeway,6 the operator made
no attempt to abate accumulations in the escapeway from the afternoon of August 31 to the
morning of September I, even though it knew in advance that the discharge line and the beltline
would both be unavailable for pumping during this time. The operator attempted unsuccessfully
to restart the beltline on the morning of September 1, which would have allowed it to pump water
out on the beltline. 7 Id. at 1237. When its attempt to restart the beltline failed, it had no
alternative means of pumping out the water until the beltline was restarted on the afternoon of
September 2 because it had chosen to disconnect the converted discharge line in order to
facilitate its longwall move and because it chose not to run a discharge line to the Mudlick
Mains. Thus, the means to abate the water accumulations cited on September 2 were within the
operator's control but it chose not to use them when it decided to have both the discharge line
and the beltline unavailable for pumping starting on the afternoon of August 31.
Under Commission precedent, an operator' s failure to take remedial action within its
control to abate a known hazard is an aggravating circumstance that supports an unwarrantable
failure conclusion. See New Warwick Mining Co., 18 FMSHRC 1568, 1574 (Sept. 1996)
(holding operator' s failure to abate known water accumulations was unwarrantable); Ambrosia
Coal & Constr. Co., 18 FMSHRC 1552, 1562 (Sept. 1996) (finding unwarrantable failure due to
foreman's failure to abate known brake defect); Warren Steen Constr., Inc., 14 FMSHRC 1125,
1129-30 (July 1992) (affirming unwarrantable violation where operator failed to abate known

line into a discharge line for purposes of pumping out the water, which proved to be a costeffective and simply solution. While the old adage "once burned, twice learned" comes to mind,
such a lesson was apparently lost on Eagle Energy for they proceeded to reconvert the discharge
line back to a fresh water line without a means to discharge escapeway water from an extremely
wet mine.
6

Production director Adkins testified that parts of the escapeway needed to be pumped at
least three or four times a day and that, without pumping, the water would eventually reach the
roof of the escapeway. Tr. IV 174, 274, 277. Because of the history of water accumulation
problems in the escapeway and the need for frequent pumping, the record fails to support the
operator's argument that it "had no reason to expect that water would accumulate in the
escapeway to hazardous depths" between the time it disconnected the discharge line on August
31 and the time it planned to resume pumping water onto the beltline on September 1. EE Br. at
12.
7

When operational, the beltline could be used to pump water out of the escapeway even
when no coal was being produced on the section. Tr. V 141-42.
836

electrical hazard); Cyprus Plateau Mining Corp., 16 FMSHRC 1604,1607-08 (Aug. 1994)
(affirming unwarrantable failure where operator aware of brake malfunction but failed to remedy
problem). Accordingly, as a matter of law, the operator's elimination of all means of pumping
water from the afternoon of August 31 to the afternoon of September 2 was an aggravating rather
than mitigating circumstance for unwarrantable failure purposes.8
In addition, substantial evidence does not support the judge' s conclusion that the
operator' s failure to abate the violative condition was mitigated by two roof falls at the mine.
The roof falls were cleared by the evening of August 29, well before the operator decided to
reconvert the discharge line back to a fresh water line on the afternoon of August 31. 21
FMSHRC at 1250. The-record is void of any evidence indicating that the roof falls impeded the
operator from addressing the cited water accumulations in the escapeway.

On remand, the judge must reconsider his negative unwarrantable failure determination in
light of the operator's lack of abatement efforts, and consider as an aggravating factor that the
operator did not run a discharge line to the Mudlick Mains. In his analysis, the judge should also
consider the operator's lack of a means to pump water in the escapeway during the period in
question as an aggravating, not a mitigating, factor, and take into account that the roof falls were
not a mitigating circumstance.

8

Contrary to Chairman Verheggen's suggestion (slip op. at 19), we are not asking the
judge to second guess the efforts of Eagle Energy to use the belt as a means of discharging water.
Rather, we are asking the judge to consider whether the operator, knowing the mine would be
understaffed over the Labor Day weekend, was reckless in deciding to rely solely on the yet to be
assembled belt to remove well documented excess water accumulations in the escapeway.
Apparently assuming that no problems would arise during the complex operation of reassembling
the belt, Eagle Energy decided to forego any alternative means of water removal, such as an
additional discharge line to the surface or to another section. But, as complicated endeavors
often do, difficulties arose and a day and a half was lost (September l through the morning of
September 2) while Eagle Energy struggled with numerous problems in reassembling and
operating the belt. We find it significant that during this day-and-a-half period, Eagle Energy
made no attempt to use other methods to remove the excess water from the escapeway, such as
reconnecting the water discharge line or installing an additional discharge line. The question
here is not whether the judge failed to consider as an aggravating factor the fact that Eagle
Energy was unsuccessful in preventing hazardous water accumulations. The question is whether
the judge failed to consider as aggravating Eagle Energy's failure to have an alternative method
of discharging water readily available in case of problems in assembling the belt and, when such
problems arose, its failure to use other methods to remove the excess water.
837

2.

Other Factors

We conclude that the judge also erred by failing to consider the obviousness and danger9
posed by the cited accumulations in his unwarrantable failure analysis. See BethEnergy Mines,
14 FMSHRC at 1243 (finding violation unwarrantable where unsaddled beams "presented a
danger" to miners entering the area); Windsor Coal Co., 21FMSHRC997, 1006-07 (Sept. 1999)
("The judge should ... have addressed whether the accumulations were obvious."). On remand,
the judge must explicitly consider these factors in his unwarrantability analysis.
Substantial evidence supports the judge's finding (21 FMSHRC at 1245, 1249) that the
accumulations cited on September 2 were extensive. On review, Eagle Energy does not dispute
the judge's finding in this regard. The four accumulations extended from 40 to 120 feet in length
and from up to 15 inches or more in depth. Id. The judge's finding that the violative condition
was extensive "fairly detracts" from his negative unwarrantable failure finding. Midwest
Material, 19 FMSHRC at 34 n.5 (citation omitted).
The judge's finding (21 FMSHRC at 1249) that the operator was on notice of the need for
greater compliance efforts is also supported by substantial evidence. On review, Eagle Energy
does not dispute the judge's finding regarding notice. The record evidence shows that the mine
had chronic water accumulation problems. The operator had received seven citations for water
accumulations in the IO Left escapewaybetween May and August 1997. Gov't Exs. 28-31, 3840. The operator's weekly examination books showed water accumulations in the escapeway on
August 15, 22, and 29. The operator was also warned by MSHA in July and August about its
water accumulation problems. Tr. III 12-16, 25.
However, we conclude that the judge erred by considering as a mitigating factor that
MSHA did not find unwarrantable failure when issuing previous citations for water
accumulations in the same escapeway. 21 FMSHRC at 1249. Under Commission precedent,
prior citations, even if not designated as unwarraritable, place operators on notice that greater
compliance is required. Peabody Coal, 14 FMSI-iRC at 1263-64; Amax Coal Co., 19 FMSHRC
846, 851 (May 1997). Accordingly, rather than being a mitigating factor, the judge should have
treated Eagle Energy's previous citations as an aggravating factor for the purposes of notice of
the need for greater compliance efforts. In light of this precedent, the judge's finding that the
9

We conclude that the judge erred in considering as a mitigating circumstance.that only
management personnel worked at the mine over the Labor Day Weekend, from August 30
through September 1. Under section 3(g) of the Mine Act, 30 U.S.C. § 803(g), a miner is defined
as "any individual working in a coal or other mine" and includes both supervisory and nonsupervisory employees. Sec'y ofLabor on behalfofPrice v. Jim Walter Res., Inc., 12 FMSHRC
1521, 1532 (Aug. 1990). Thus, the preeminent statutory concern of the Mine Act, the health and
safety of miners (30 U.S.C. § 801(a)), covers both management personnel and rank-and-file
employees. Accordingly, we conclude that a violation of section 75.380{d){l) is not mitigated
because it endangers management, as opposed to rank-and-file, personnel.
838

operator was on notice of the need for greater compliance efforts "fairly detracts" from his
negative unwarrantable failure determination. On remand, the judge must reanalyze the
unwarrantable failure issue, taking into consideration the operator's prior water accumulation
citations as an aggravating factor.
We agree with the judge (21 FMSHRC at 1245) that the record is unclear on how long the
water accumulations were in violation of section 75.380(d)(l) prior to being cited by the
inspector on September 2. 10 Thus, it is not clear whether the duration oftbe violation was an
aggravating factor. However, the Commission has found unwarrantable failure when the
duration of the violation was unclear. See Jim Walter Res., Inc., 19 FMSHRC 480, 487, 489
(Mar. 1997) (holding that unwarrantable failure can be found even when duration is in question).
B.

Characterization of Conduct

We conclude that the judge erred in predicating his negative unwarrantable failure
determination on the fact that, when recording the violation on the citation form, the MSHA
inspector checked the "high negligence" box rather than the "reckless disregard" box. 21
FMSHRC at 1248. The Commission has defined unwarrantable failure as "aggravated conduct
constituting more than ordinary negligence," and has characterized such conduct not only as
"reckless disregard" but also as "indifference" or a "serious lack ofreasonable care." Emery, 9
FMSHRC at 2003-04. Thus, contrary to the judge's analysis, a finding of unwarrantable failure
does not require a finding of"reckless disregard." The Commission has also previously
recognized that a finding of high negligence suggests unwarrantable failure. In Eastern
Associated Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991), the Commission stated: "'Highly
negligent' conduct involves more than ordinary negligence and would appear, on its face, to
suggest an unwarrantable failure. Thus, if an operator has acted in a highly negligent manner
with respect to a violation, that suggests an aggravated lack of care that is more than ordinary
negligence." In addition, the Commission has found unwarrantable failure for violations, like the
violation in the instant case, that were designated as "high negligence" on the citation form. See
Cyprus Emerald, 20 FMSHRC at 793, 813-15 and 17 FMSHRC 2086, 2100, 2104 (Nov. 1995)
(ALJ) (affirming unwarrantability finding for refuse pile violations checked as "high negligence"
on citation form). On remand, the judge must reconsider, consistent with Commission precedent,
whether the operator's highly negligent conduct in this case amounts to an unwarrantable failure.
10

Substantial evidence supports the judge's finding that the Secretary did not
demonstrate that the water accumulations in the 10 Left escapeway noted in the weekly
examination books during August were the same as the water accumulations in the escapeway
cited on September 2. It is undisputed that water accumulations could occur rapidly in the mine.
In addition, witnesses for the operator testified that pumping had occurred in the escapeway up to
August 31. Tr. N 167-70; Tr. V 100-01. In light of these facts, we do not think the operator's
failure to note any remedial efforts in the weekly examination books conclusively shows that no
pumping occurred or that the water accumulations before August 31 were the same as those
found on September 2.
839

In sum, we remand this matter for reconsideration of the judge's negative unwarrantable
failure finding. The judge must reconsider the operator's lack of abatement efforts, including his
finding that it was impractical to run a discharge line to the Mudlick Mains, that the operator's
lack of a means to pump water in the escapeway during the period in question was an aggravating
factor, and taking into account that the roof falls were not a mitigating circumstance. The judge
must also consider the danger factor, taking into account that the danger was not mitigated
because only management personnel worked at the mine during the period in question. In
addition, he must consider the obviousness of the cited accumulations. The judge must also
explain how the operator' s notice of the need for greater compliance efforts and the
extensiveness of the violation affect the unwarrantable failure determination. Finally, the judge
must reconsider the effect of the operator' s highly negligent conduct on the unwarrantable failure
issue.

III.
Conclusion
For the foregoing reasons, we vacate the judge's determination that Eagle Energy's
violation of section 75.380(d)(l) was not the result of its unwarrantable failure, and the assessed
civil penalty. We remand for further analysis consistent with this opinion, and reassessment of
the civil penalty.

James C. Riley, Commissio

840

Commissioner Jordan, concurring:
Although Eagle Energy was well aware that it had a longstanding water accumulation
problem in its escapeway, it nonetheless made the deliberate decision to forego any means of
discharging water in order to facilitate its longwall move. Its utter indifference to the safety
concerns posed by the considerable accumulation of water that plagued the mine is a classic
example of unwarrantable failure.
For the reasons stated below, I would reverse the judge's finding that the escapeway
violation was not the result of Eagle Energy's unwarrantable failure. However, to avoid the
effect of a divided decision, which would allow the judge's finding to stand, I join Commissioner
Riley and Commissioner Beatty in remanding this case for further consideration.
Eagle Energy does not dispute the judge's finding that it had been on notice for a lengthy
period of time regarding the water accumulation problem it faced in its mine. This finding is
supported by substantial evidence. As Commissioner Riley and Commissioner Beatty
acknowledge, it had received seven water accumulation citations in the escapeway between May
and August 1997, which my colleagues correctly conclude constituted an aggravating factor in
terms of the unwarrantable failure analysis. Slip op. at 10, citing Gov't Exs. 28-31, 38-40. Eagle
Energy's own weekly examination books indicated water accumulations in the escapeway on
August 15, 22, and 29. 21 FMSHRC 1235, 1242 (Nov. 1999) (ALJ). Its own witness, John
Christopher Adkins, Eagle Energy past president and the director of production for Massey Coal
Services (which had provided technical services to Eagle Energy), testified that "[t]his is a wet
mine. This is the wettest mines [sic] I've ever been in." Tr. N 275.
In addition, Inspector Albert "Benny" Clark had discussed the problem with mine
officials on at least two occasions, July 10 and August 13. Tr. III 12-16, 25. Clark testified that
during his conversation in July, Jeff Bennett, Eagle Energy's safety director, asked him not to
issue a 104(d)(l) citation and Stanley Edwards, Eagle's superintendent, told Clark that "this
would never happen again ... if [he] changed it to a 104(a) citation." Tr. III 14. And yet,
Edwards was wrong. The water accumulation problem was not dissipated, despite his promise,
and the inspector found another accumulation in the escapeway when he returned on
September 2.

Moreover, in his deposition, Edwards admitted that, because of other problems at the
mine, the removal of water from the escapeway was "real low on [its] priority list." Gov't Ex. 45
at 92 (Dep. Tr. of Stanley Edwards). The Commission has made clear that when an operator has
notice of a violation, the level of priority it places on abatement is a proper factor to consider in
determining whether the violation was a result of unwarrantable failure. Consolidation Coal Co.,
22 FMSHRC 328, 333 (Mar. 2000), appeal docketed, No. 01-1228 (4th Cir. Feb. 21, 2001)
("ConsoI''). In fact, the attitude of the operator in the Consol case, in which we reversed the
judge's finding that the violation was not the result of unwarrantable failure, is strikingly similar
to the nonchalance displayed by Eagle Energy. In Consol, the operator failed to respond
841

effectively to rectify a violative condition (inadequate roof support) of which it was aware. Id. at
332. Our rationale for reversing the judge in Consol is apt in the instant case as well:
[O]nce Consol became aware that it was in violation of the
regulation and its roof control plan, it was under an obligation to
expeditiously remedy the condition that gave rise to the citation.
Relegat~ng the request for additional posts to the routine supply
system so as not to interfere with production was a conscious
decision by mine management. Attaching no special significance
to an order for materials necessary to bring the mine into
compliance with a mandatory safety standard is an indication that
this operator should reexamine its priorities .... Taken together,
the company's actions reflect the kind of indifference to a violation
that constitutes an unwarrantable failure to comply with the
regulation.
Id. at 333.
Commissioners Riley and Beatty agree that the judge's finding that Eagle Energy was on
notice of the need for greater compliance efforts is supported by substantial evidence. Slip op. at
10. Moreover, they agree that the Secretary has met her burden of proving some of the other
Mullins factors. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994). For instance,
they agree that substantial evidence supports the judge's finding that the accumulations were
extensive. Slip op at 9-10. Regarding abatement efforts, they recognize that Eagie Energy "had
no alternative means of pumping out the water until the beltline was restarted ... because it had
chosen to disconnect the converted discharge line in order to facilitate its longwall move and
because it chose not to run a discharge line to the Mudlick Mains. Thus, the means to abate the
water accumulations ... were within the operator's control but it chose not to use them .... " Id.
at 8. And yet, despite this acknowledgment, my colleagues are reluctant to reverse the judge's
determination that the violation was not the result of unwarrantable failure.
Reversal is warranted based upon the factors discussed above, and upon examination of
the remaining Mullins factors. In discussing the issue of danger, for example, my two colleagues
correctly conclude that the judge was wrong to cohsider as a mitigating circumstance the fact that
only management personnel worked at the mine from August 30 through September 1. Id. at 10,
n.9. Regarding this issue, the record compels only one conclusion - that the accumulations had
created a dangerous condition. As the judge found, they were located in the primary escapeway
by which miners would escape in an emergency. 21 FMSHRC at 1239-40, 1244. They were
large, extending up to 120 feet in length (id. at 1242), and ranging up to 15 or more inches in
depth (id.; Tr. ill 209). They contained muddy water and had slick, uneven bottoms. 21
FMSHRC at 1239, 1240, 1243, 1246. There were pieces of wood floating in the water, and coal
deposits and discharge lines sticking out of the water. 21 FMSHRC at 1242. Both Clark and
MSHA supervisor Terry Price testified that the accumulations posed a tripping hazard (Tr. II 201;
842

Tr. III 218, 232), and Price stated repeatedly that "you couldn?t see the bottom" (Tr. ill 211, 218).
The potential safety problems caused by these conditions were exacerbated, according to
assistant superintendent Harry Walker, who testified (in agreement with Inspector Price), that
there were greater safety concerns during a longwall move. Tr. V 96.
The record also compels the conclusion that the water accumulations were obvious. As I
have noted, they were .e xtensive and occurred several times along the escapeway. In addition,
production director Adkins testified that he traveled along the escapeway on September 1, the
day before the accumulations were cited. Tr. IV 177. Given that some of the accumulations
were at least 15 inches deep on the morning of September 2, and given the rate of accumulation
of approximately eight inches every 24 hours (21 FMSJiRC at 1244-45), it should have been
obvious to Adkins when he traveled the escapeway on September 1 that the accumulations were
rapidly approaching hazardous conditions in an area known for its chronic accumulation
problems.
Regarding duration, the judge credited testimony by production director Adkins, not
challenged on review by Eagle Energy, that water accumulated in the escapeway at depths of
approximately eight inches per day. 1 Id. Based on this testimony, the water in the escapeway
must have been permitted to accumulate for approximately two days in order to have reached the
15 inches depth on September 2. The water must have reached several inches to a foot in depth
on the previous day when production director Adkins traveled along the escapeway. 2 Tr. IV 177.
Although it is not clear from the record when the cited accumulations became violative, given the
chronic water problems in the escapeway and the rapidly growing accumulations on September
1, the evidence compels the conclusion that the operator knew for over a shift that the water
accumulations were either hazardous or rapidly approaching hazardous conditions.
Despite this record evidence, my colleagues send the case back to the judge. But I see no
need for a remand when there is agreement that the operator's conduct was highly negligent, that
several of the Mullins factors were satisfied, and that the factors the judge found mitigating were
either not mitigating or, as in the case of abatement, were aggravating. Slip op. at 7-11.
In Jim Walter Resources, Inc., 19 FMSHRC 480 (Mar. 1997), a case in which the record
evidence was similarly compelling, we reversed the judge's finding that three coal accumulation
violations were not the result of unwarrantable failure, explaining that:

1
-

Later in the hearing, Adkins tried to recant this testimony by claiming the rate of
accumulation was less than eight inches per day. Tr. IV 226. I find that the judge implicitly
rejected his recantation by crediting his eight inches per day testimony. 21 FMSHRC at 1244-45.

2

Adkins testified that the water in the escapeway on September 1 was not in excess of
his boot height. Tr. IV 177.
843

[o ]ur review of this record as a whole - particularly the undisputed
evidence regarding the prior warnings and the extensive and
obvious nature of the violation - leads us to conclude that there is
not substantial evidence to support the judge's finding that no
aggravated conduct occurred. In such a case, the proper course of
action is reversal, not remand.
19 FMSHRC at 489 n.8.
Notwithstanding the well-recognized role of the trial judge as the initial finder of fact, the
law is equally clear that when the evidence supports only one conclusion, a remand to the judge
serves no purpose. See Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (affirming
judge's finding of no unwarrantable failure, despite judge's error in not addressing some of the
Secretary's evidence). There are simply instances when an appellate body, faced with a record as
staggering as the one in this case, need not prolong litigation by insisting on a remand. See
Walker Stone Co. v. Sec'y of Labor, 156 F.3d 1076, 1085 n.6 (10th Cir. 1998)(court rejects
operator's contention that the Commission erred in not remanding case when essential facts were
not in dispute). 3
The opinion of my colleagues Commissioners Beatty and Riley has correctly established
that Eagle Energy was highly negligent and on notice of the need for greater compliance, that the
accumulations were extensive, and that the operator's elimination of a way to pump water for
three days was an aggravating factor. Since I concur with these determinations, this is now the
law of the case. Given that the matter is currently in this posture, and taking into account the
additional record evidence regarding danger, obviousness, and duration, a remand to the judge on
the question of unwarrantable failure is simply not necessary. Looking at the record as a whole,
there is not substantial evidence to support the judge's determination that no aggravated conduct
occurred.
The use of the unwarrantable failure 104(d)(l) order as an enforcement tool was included
in the Mine Act to remedy precisely the type of scenario that occurred at the Eagle Energy mine:
an operator who is repeatedly warned, receives multiple citations, and yet is still not motivated to
cure a safety problem. Eagle Energy's cavalier indifference to the water accumulations at its
mine constitutes aggravated conduct.

3

In Donovan v. Stafford Construction Co., 732 F.2d 954 (D.C. Cir. 1984), the court, in
reversing,the Commission's decision finding no discrimination, considered the issue of whether
an operator had satisfied its burden of proving its affirmative defense in a discrimination case,
when neither the judge nor the Commission had addressed the question. Explaining that "[s]ince
all the evidence bearing upon the issue is contained in the record before us, ... we believe that a
remand on this issue would serve no purpose. This is particularly so in light of our ultimate
holding that only one conclusion would be supportable." Id. at 961.
844

For the reasons stated above, I would reverse the decision of the judge and find that the
violation was the result of the operator's unwarrantable failure. Nonetheless, to avoid a divided
decision, I join in the opinion remanding the case for further consideration.

~ ;L~
M~d
c .~
ary Lu 0r an,

845

omm1ss1oner

Chairman Verheggen, dissenting:
For the reasons I set forth below, I would affirm Judge Feldman's finding that Eagle
Energy's S&S violation of section 7 5 .380(d)( 1) was not the result of the operator's
unwarrantable failure to comply with the standard. I therefore dissent from my colleagues
decision to remand the unwarrantable failure question.
In determining that Judge Feldman properly found that the Secretary failed to prove that
Eagle Energy's violat.ion of section 75.3SO(d)(l) was unwarrantable, I am guided by several well
established principles. First is the fundamental principle that the Mine Act imposes upon the
Secretary the burden of proving an alleged violation by a preponderance of the credible evidence.
Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). A logical corol1ary to this
rule oflaw is that if a judge finds such prooflacking, that is the end of the matter- the judge is
under no obligation to go any further.
Second is the substantial evidence test by which the Commission is statutorily bound
when reviewing anjudge's findings of fact. 30 U.S .C. § 823(d)(2)(A)(ii)(I); Wyoming Fuel Co.,
16 FMSHRC 1618, 1627 (August 1994). My colleagues state that "substantial evidence" means
'"such relevant evidence as a reasonable mind might accept as adequate to support [the judge's]
conclusion,"' and that the Commission "must consider anything in the record that 'fairly detracts'
from the weight of the evidence that supports a challenged finding." Slip op. at 7 n.4 (citations
omitted). I note further that under the substantial evidence test, the Commission may not
"substitute a competing view of the facts for the view [an] ALJ reasonably reached." Donovan
ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983). As the Fourth Circuit
explained when overturning a Commission decision that had reversed a judge's findings in a
discrimination case:
The fact that evidence exists in the record to support [the
complainant's] position is not determinative. Rather, the
Commission's review was statutorily limited to whether the ALJ's
findings of fact were supported by substantial evidence. The
"'possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's finding from
being supported by substantial evidence.'"

Wellmore Coal Corp. v. FMSHRC, No. 97-1280, 1997 WL 794132, at *3 (4th Cir. Dec. 30,
1997) (citations omitted).
Turning to the issue presented here on appeal, for the reasons set forth below, I find that
substantial evidence supports the judge's unwarrantable failure determination. Looking at all the
relevant facts and circumstances of this case, first, I note that as to duration, I agree with my
colleagues that the record does not support a finding one way or the other as to how long the
cited water accumulations existed. See slip op. at 11. Thus, the Secretary failed to meet her

846

burden to show that the duration of the water accumulation was an aggravating· factor. I also
find, however, as do my colleagues, that substantial evidence supports the judge's findings that
the accumulations were extensive and that Eagle Energy had notice of the need for greater
compliance efforts. See id. at 10.
I differ from my colleagues, however, in my consideration of the judge's findings on
mitigating factors. It is clear from the record that Eagle Energy's management personnel were
anticipating using the belt to dewater the area of the mine where they were installing the
longwall. See 21 FMSHRC at 1240. But they encountered serious problems with keeping the
belt up and running. It pulled apart at several locations when started up on September 1. Id.
Attempts to repair the bel~ that day were unsuccessful. Id. An attempt to start up the belt during
the morning of September 2 was also unsuccessful. Id. It was not until the afternoon of
September 2 that the belt was successfully repaired and available for use in dewatering the mine.
See 21 FMSHRC at 1243.
I find the problems Eagle Energy encountered with its primary mode of dewatering the
mine the single most important mitigating factor presented by this record, in addition to the fact
that the operator was making every effort to repair the belt. With the benefit of hindsight, it is
easy for my colleagues to speculate that "the operator could have run an additional discharge line
to the surface" or "could ... have reassembled the beltline and had it in operating condition
before it reconverted the discharge line back to a fresh water line." Slip op. at 8. Certainly, in
retrospect the operator's reliance on the belt to dewater the mine was misplaced. But this is clear
only in retrospect. In light of the operator's efforts to get the belt running, it is hardly fair to ask
the judge to second guess their efforts on remand. I find that Eagle Energy's efforts support the
judge's conclusion that the operator's conduct, though negligent, did not rise to the level of
reckless disregard.
Further, I find the judge's decision reasonable in light of the fact that the mine was
understaffed at the time the water accumulated. I disagree with my colleagues' conclusion that
"the judge erred in considering as a mitigating circumstance that only management personnel
worked at the mine over the Labor Day Weekend" because the violation "is not mitigated
because it endangers management, as opposed to rank-and-file [miners]." Id. at 10 n.9. I believe
my colleagues miss the point, which is that at the time the water accumulated, there was a
shortage of workers in the mine, and thus fewer miners available to bring up the belt. The
shortage of workers could only have been exacerbated by the confusion and strain on resources
created by the roof fall that occurred soon before the cited violation. 21 FMSHRC at 1249-50.

847

In sum, I conclude that a reasonable trier of fact could conclude from this record that
Eagle Energy's violation of section 75.380(d)(l) was not the-result of the operator's
unwarrantable failure. I recognize, of course, that the operator's actions were negligent. But the
record provides support for a finding - a judgment call - that its negligence was not
aggravated. Our obligation is to uphold such judgment calls, not second guess them.
Accordingly, I would affirm the judge's decision.

c:

Theodore F. Verheggen, Chairma

848

Distribution
David J. Hardy, Esq.
Maris E. McCambley, Esq.
Jackson & Kelly, PLLC
P.O. Box 553
Charleston, WV 25324
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Administrative Law Judge Jerold Feldman
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 1o•h Floor
5203 Leesburg Pike
Falls Church, VA 22041

849

850

ADMINISTRATIVE LAW JUDGE DECISIONS

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

August 2, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 2001-27
A. C. No. 01-00851-04092
Oak Grove Mine

U .S. STEEL MINING COMPANY, LLC,
Respondent

DECISION
Appearances: William Lawson, Esq., Office of the Solicitor, U.S . Department of Labor,
Birmingham, Alabama, on behalf of Petitioner;
S. Andrew Scharfenberg, Esq., Ford & Harrison, LLP, Birmingham, Alabama
on behalf of Respondent.
Before:

Judge Zielinski

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor against U.S. Steel Mining Co., LLC, pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977 (the "Act"). 30 U.S.C. § 815. The petition alleges a single violation of
the then applicable noise standard, 30 C.F.R. § 70.501, 1 and proposes a civil penalty of $399.00.
A hearing was held in Hoover, Alabama on June 14, 2001. For the reasons set forth below, I
affirm the citation and impose a civil penalty of $225.00.

Findings of Fact
On May 31 and June 1, 2000, John R. Craddock, an inspector and health specialist for the
Secretary's Mine Safety and Health Administration (MSHA), conducted dust sampling and a
noise survey during the midnight shift at U.S. Steel' s Oak Grove Mine. The focus of his noise
survey was the longwall mining operation.

The· noise regulations applicable at the time were found in Title 30 C.F.R.,
Subpart F, §§ 75.000, et seq. Subpart F was removed from the regulations, effective
September 13, 2000, and replaced with Subpart M, Part 62- Occupational Noise Exposure.
The original regulatory reference in the citation was to 30 C.F.R. § 70.51 O(a). Prior to the
hearing, the ci~ation was amended to cite a violation of30 C.F.R. § 70.501.
851

The highest level of noise that a miner may be continuously exposed to for an entire 8
hour shift is 90 dB (decibels). Higher levels of noise, up to 115 dB, may be sustained for shorter
durations. Exposures to varying levels of noise of 90 dB or higher over different time periods are
computed using a formula set forth in 30 C.F.R. § 70.502. The result is a time weighted average
(TWA) of exposure to noise expressed as a percentage of the maximum allowable exposure, with
100 being the equivalent of 8 hours of exposure to 90 dB. The standard is considered to have
been violated if the TWA exposure exceeds 100. MSHA allows for an error reading of 2 dB.
Consequently, the maximum allowable TWA used by health inspectors is 132, the equivalent of
8 hours of exposure at 92 dB. Under the regulatory scheme then applicable, if a miner wore
some form of hearing protection, e.g., ear plugs, the TWA of the miner's noise exposure was
multiplied by the device's noise reduction rating (NRR) to arrive at a final noise exposure level
for that miner. For example, if a miner was exposed to noise with a measured TWA of 200, but
wore ear plugs with a NRR of0.25, his actual exposure would be only 50 (200 x 0.25 = 50), well
below the allowable limit of 132.
MSHA inspectors use an electronic device called a dosimeter to measure noise levels.
For this inspection, Quest model Q200, dosimeters were used. They had been approved as
measuring devices and had been calibrated as required by regulation. Specific miners are
designated to wear dosimeters for the entire shift. 30 C.F.R. § 70.500(f) described a dosimeter:
(f) Personal noise dosimeter means equipment worn by an individual, which
performs noise level measurements along with exposure time measurements. The
circuitry of the instrument is such that it automatically performs the computation
of the multiple noise exposure specified in§ 70.502.
The dosimeter continually monitors the noise levels to which the miner is exposed and
calculates the level of exposure as a function of the noise level and time of exposure. The results
are reported on a digital display as a percentage of the TWA of the maximum allowable noise
exposure. Taking into account the error factor used by MSHA, readings above 132, after taking
into account the NRR of any hearing protection worn by the miner, indicate exposure to excessive
noise in violation of the standard.
Inspector Craddock followed his normal procedure in conducting the dust and noise
surveys. He arrived at the mine site at about 10:00 pm on May 31, 2000, about an hour before
the midnight shift began. He met with the longwall shift foreman, Steve Hayes, and designated
the miners who wer~ to wear the dosimeters and dust pumps. Five miners were designated to
wear dosimeters; B. Boyd, a stage loader; 0. Ingle, the longwall shearer operator; S. Reed and A.
William, two shield op.erators; and, S. Bartges, an electrician. Dosimeters and dust pumps were
distributed at a table near the dressing area shortly before the miners went underground.

852

The measuring devices were activated about 10 minutes before the start of the shift and
Craddock traveled underground with the men to monitor the testing. When they arrived below
ground, he checked the dust pumps and dosirneters,2 and walked approximately 1,000 feet with
the longwall crew to the longwall operation. Before production began, parameters of dust control
devices on the longwall mining machine had to be tested and the men were all in the relatively
confined area at the head gate of the longwall while this was done. Craddock has extensive
experience as a coal miner and over 30 years of experience as an inspector, including 15 years as
a health inspector. He had inspected the mine in the past and knew many of the miners,
including David Ingle. There was an ongoing exchange of conversation between Craddock and
the miners, including considerable bantering and joking. Craddock recorded information
necessary for the noise survey report, the miners' names, the serial numbers of the dosimeters,
the miners' jobs and corresponding codes and the time the dosimeters were turned on. He asked
each of the miners whether he wore hearing protection and, if so, he determined the type of
hearing protection and its NRR, and also recorded that information. Whether the miner wears
hearing protection is important information because noise exposure in a longwall operation will
generally exceed allowable limits and the wearing of hearing protection with an adequate NRR
would be essential to avoiding a violation of noise exposure regulations.
The light-hearted conversation and joking between Craddock and the miners continued
throughout this process, including his efforts to obtain information about hearing protection.
One miner stated in response to Craddock's inquiry that he just put tissue in his ears. Another
responded that he had worms in his ears. Ingle responded that he didn't have any. of that stuff in
his ears, he just wore a "hood," an elastic neck warmer that he pulled up over his head. Despite
the joking, the miners did eventually supply information about hearing protection to Craddock.
As he explained, "they know you're serious and they will eventually give you a straight answer"
about whether they wear hearing protection and what type it is. Craddock recorded their
responses on his report form and examined the packaging of the ear plugs that the miners
produced to obtain the NRR for that particular device. Notably, Ingle, the shearer operator, never
provided Craddock with information different from his original response, to the effect that he did
not wear hearing protection.3 Ingle's foreman, Steve Hayes, was present during this banter,
including Ingle's response to Craddock's inquiry about hearing protection, and did not contradict
the information supplied by Ingle, although he may have smiled during the exchange.4 After
checking the parameters for dust control on the longwall shearer, e.g., the number and minimum

2

MSHA's policy manual specifies that miners wearing dosimeters are to be
observed "frequently' during the shift. In practice, observations are made at the beginning of the
shift and·as other miners wearing dust pumps are checked.
3

At some point, Ingle stated that he had ear plugs in his "bucket" in the "kitchen or
dinner hole." Craddock questioned what good they were going to do him back there.
4

There was testimony on cross-examination of Craddock that Hayes smiled.
However, it is unclear whether Craddock was referring to Ingle or Hayes.
853

pressure of sprays, and gathering the information from the miners, production commenced with
the longwall shearer making a pass toward the tailgate.
Craddock stayed near the head gate to record air and gas measurements. He then caught
up with the shearer about halfway to the tailgate and again made air and gas measurements. He
caught up to the shearer again near the tailgate and again took air and gas readings. After the
longwall shearer reached the tailgate, Ingle performed a cut out operation and backed the shearer
up, preparing to make another pass toward the head gate. He was facing the coal face, holding
the remote control for the shearer in his hands, when Craddock approached him from his left
side. Craddock pulled the "hood" on Ingle's head back to look into his left ear. Craddock did
that because he wanted to check to see if Ingle was wearing hearing protection. Because of the
joking that had gone on earlier, he felt that there was a possibility that Ingle was kidding him
when he said that he didn't wear hearing protection.
In addition to the "hood," which miners wear for warmth and to reduce the amount of
coal dust on their heads, Ingle wore an "airstream" helmet and face shield. The helmet extended
over, or around, his ears, but did not prevent someone from looking into his ears. Ingle did not
see Craddock as he approached and the attempt to check Ingle's hearing protection surprised him
somewhat.5 He turned toward Craddock when he felt the tug on his "hood" and Craddock,
thereafter, left the area and had no further contact with Ingle. Craddock did not observe ear plugs
or any other form of hearing protection in Ingle's left ear.
Craddock collected the dust pumps, which are required to be operated for no more than
8 hours, and went to the surface about 7:00 am. He encountered Hayes on the way out and
responded "no" when Hayes asked him if he had found anything. Dosimeters, which must be
operated for the entire shift, were collected when the shift ended and the miners came into the
bathhouse/dressing area. Craddock checked and recorded the results of the dosimeter survey
from the readout display on the machines. B. Boyd's dosimeter provided a reading of213.2.
However, the NRR of his ear plugs was 0.125, which reduced that reading well below the
allowable limit of 132. S. Reed's dosimeter displayed a reading of 164. l. Applying the 0.0719
NRR of his ear plugs also reduced his exposure below the allowable limit. Ingle's dosimeter
displayed a reading of 324.0, the equivalent of 8 hours of exposure to noise in excess of98 dB. 6

5

Ingle testified that he thought Craddock was joking and that he "didn't think
anymore about the si_1uation."
6

One of the dosimeters failed to record and the other, worn by the electrician, who
likely did not spend a great deal of time in close proximity to the longwall shearer, displayed a
reading of I 02.6. A table showing the sound level which, if constant over 8 hours, would result
in the same noise dose as measured and displayed by a dosimeter, is found in the Appendix to the
current regulations, 30 C.F.R., Subchapter M, Part 62.
854

Because Ingle's dosimeter reading substantially exceeded the allowable limit of 132, and
he had not worn hearing protection, Craddock issued Citation No. 7664187 for what he perceived
to be a violation of noise standard regulations. He determined that it was highly likely that a
miner exposed to that noise level over his "working life" would suffer permanent hearing loss,
classified the violation as "significant and substantial" and the degree of operator negligence as
moderate. He served the citation on Gary McGough, Respondent's midnight shift safety
inspector. At no· time,.including during the post inspectioh conference, did anyone protest or
contradict Craddock's determination that Ingle was exposed to excessive noise because he was
not wearing hearing protection.
Conclusions ofLaw - Further Factual Findings
In an enforcement proceeding under the Act, the Secretary has the burden of proving an
alleged violation by a preponderance of the evidence. In re: Contests ofRespirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), ajf'd.. Secretary of Labor v.
Keystone Coal Mining Corp., 151F.3d1096 (D.C.Cir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152
(Nov. 1989); Jim Walter Resources Inc., 9 FMSHRC 903, 907 (May 1987).
The determination of whether there was a violation in this instance turns upon the factual
question of whether Ingle was wearing hearing protection. Ingle testified that he was, in fact,
wearing hearing protection in the form of ear plugs issued by Respondent. 7 He confirmed that he
told Craddock that he didn't wear anything in his ears, but explained that he knew Craddock
quite well and was just joking with him, as the other miners were doing at the time. Respondent,
also relying upon Ingle's testimony, challenges Craddock's determination that Ingle was not
wearing ear plugs, arguing that the partial ear covering provided by Ingle's helmet and the
"hood" he was wearing, as well as the angle at which Craddock had to look into Ingle' s ear and
the fact that the ear plugs Ingle was wearing, as well as lngle's ear, were likely dirty from coal
dust, would have made the ear plug difficult, if not impossible, to see in the brief opportunity
provided by Craddock's pulling back of the "hood." Craddock, however, testified that he had an
adequate opportunity to observe whether Ingle had an ear plug in his left ear and that he
·
definitely did not.

7

After the citation was issued Ingle was questioned about it by James Bell, the
union safety representative, and by Giovanni Buckarelli, Respondent's safety manager. Ingle told
them that he put his ear plugs in before beginning production and would testify to that effect
Respondent issued ~earing protection to its miners and its policy on hearing protection required
that it be worn in noisy conditions, e.g., when the shearer or other loud mechanical equipment
was operating. Respondent points out that the longwall miners were not obligated to wear
hearing protection prior to beginning production and would not have had ear plugs in their ears
when they were talking with Craddock. At the time Craddock looked into Ingle's ear, however,
Ingle would have been required to wear hearing protection.

855

I find that Ingle was not wearing ear plugs at the time Craddock checked his ear during
the operation of the shearer. I accept the testimony of Craddock, a highly experienced miner and
inspector, that he was able to determine by looking into Ingle's left ear, that he was not wearing
an ear plug. He had a brief, but adequate, opportunity to observe Ingle's left ear. While a
longwall operation undoubtedly creates a lot of dust, less than one-quarter of a shift's production
had occurred and the hood would have provided some barrier to the accumulation of dust in the
area of Ingle' s ear. Respondent contends that Ingle may have been wearing ear plugs he had used
for as much as several weeks and that they may have been more black than orange. 8 Even if
Ingle had been wearing dirty ear plugs, however, they would have been observable to Craddock.
I also find it highly unlikely that Ingle, knowing the serious nature of a noise survey, would not
have eventually given Craddock a "straight answer," ifhe was going to wear hearing protection
that day.

Significant and Substantial
A "significant and substantial" (S&S) violation is described in Section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co, 6 FMSHRC 1, 3-4 (Jan. 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 a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature. (footnote omitted)

See also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (71h Cir. 1999); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), ajfg, Austin Power, Inc., 9 FMSHRC 2015, 2021
(Dec. 1987) (approving Mathies criteria).
8

Respondent also contends that the entire inspection was fraught with errors, .
questioning whetherlhe dosimeters were approved devices and had been properly calibrated, the
manner in which Craddock attempted to look into Ingle's ear and the failure to conduct a followup noise survey after submission of its h~aring conservation plan. With the possible exception of
the manner in which Craddock attempted to look into Ingle's ear, none of these criticisms are
valid.
..

856

In U.S. Steel Mining Co., 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., Inc., 6
FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the con_tribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
Inc. , 6FMSHRC1573, 1574-75 (July 1984).
This evaluation is made in terms of "continued normal mining operations." U.S. Steel
Mining Co., Inc. , 6 FMSHRC at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co. , 9 FMSHRC
1007 (Dec. 1987).

I find that the Secretary bas not carried her burden of proving that the violation was S&S.
One could hardly dispute Craddock' s assessment that exposure to the equivalent of98 dB of
noise over the course of a miner' s working life, would result in permanent hearing loss if no
hearing protection was provided or used. lngle's TWA exposure was the equivalent of 8 dB
above the permissible limit for an 8 hour period. That is a significantly high exposure.
However, MSHA allows 2 dB, to account for reading errors. While it is no doubt true, as
explained by Judy McCormick, MSHA' s supervisory health specialist, that the chance of hearing
loss increases as the TWA increases, there was no evidence to quantify the degree to which the
risk increased due to Ingle's actual exposure.
More significantly, assessments of the risk of hearing loss associated with levels of
exposure in the range of98 dB appear to be predicated on long-term exposure, e.g. working life.9
The duration of the exposure is an important factor in the risk analysis. The violation established
that Ingle was exposed to a TWA of 324, but only for one shift. While he would typically be
exposed to that level of noise, it appears that his not wearing hearing protection was the
exception, rather than the rule. In the absence of evidence tending to show that Ingle rarely wore
hearing protection, the Secretary has failed to establish that the relatively short duration of the
violation here was highly likely to result in permanent hearing loss, or that it was reasonably
likely that the hazard contributed to would result in an injury of a reasonably serious nature.

9

See the background and related discussion included in the publication, as a final
rule, of the current noise regulations. Health Standards for Occupational Noise Exposure; Final
Rule, 64 Fed. Reg. 49548 (September 13, 1999).
857

The Appropriate Civil Penalty
U.S. Steel's Oak Grove Mine is a very large producer, over two million tons per year, and
its controlling entity is also very large, producing from five to ten million tons per year. It has a
relatively good history of violations, having paid 570 violations issued in the two years preceding
the citation here. Those citations were largely single penalty assessments and were issued in 853
days of inspections, yielding a relatively low ratio of violations to inspection days of0.67. As
noted above, I do not find that the violation was S&S, and consequently, would reduce the.
gravity to reasonably likely to result in lost work days or restricted duty. I also find that
Respondent's negligence was somewhat lower than "moderate." Had Respondent's hearing
protection policy been complied with, there would not have been a violation. Ingle's foreman, at
least to that time, had reason to believe that Ingle was "pretty good" about wearing his hearing
protection. He could, perhaps, be faulted for tolerating the light-hearted banter and joking that
occurred as Craddock inquired about hearing protection. However, the majority of the miners
provided the information, and Hayes may have been unaware that Ingle had not eventually
supplied the information. The violation was promptly abated.
Considering all of these factors, I assess a civil penalty of $225.00.

ORDER
Based upon the foregoing, Citation Number 7664187 is AFFIRMED and Respondent is
ORDERED to pay a civil penalty in the amount of$225.00.

Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, 150 Chambers Bldg.,
100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)
Anthony F. Jeselnik, Esq., U.S. Steel - Law Dept., USX Tower, Fifteenth Floor, 600 Grant St.,
Pittsburgh, PA 15219-2749 (Certified Mail)

S. Andrew Scharfenberg, Esq., Ford & Harrison, LLP., 505 N. zoch Street, Suite 1201,
Birmingham, AL 35203 (Certified Maii)
/mh

858

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

August 2, 2001

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2000-421-M
A. C. No. 04-04679-05511
Docket No. WEST 2000-422-M
A. C. No. 04-04679-05512
Docket No. WEST 2000-423-M
A. C. No. 04-04679-05513
A. C. No. 04-04679-05515
Mine: Montague Plant

v.

Docket No. WEST 2000-424-M
A. C. No. 04.:03404-05513
Docket No. WEST 2000-425-M
A. C. No. 04-03404-05514
Docket No. WEST 2000-426-M
A. C. No. 04-03404-05515
Docket No. WEST 2000-427-M
A. C. No. 04-03404-05516
A. C. No. 04-03404-05517
A. C. No. 04-03404-05519
A. C. No. 04-03404-05520

CONTRACTORS SAND & GRAVEL,
INCORPORATED,
Re~pondent

Mine: Scott River Plant

DECISION APPROVING SETTLEMENT
Before:

Judge Barbour

These cases Involve seven petitions for assessment of civil penalty. They arise under
section 105(d) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. §815(d)). They are
before me on remand from the Commission (23 FMSHRC 570 (June 2001)), and they concern
proposed penalty assessments that became final orders of the Commission either when the
Respondent failed to submit a hearing request to contest the alleged violations or when the
Re~pondent failed to answer the Secretary's petitions. Several years after most of the defaults
859

were entered, the Respondent requested the Commission reopen the proposed assessments so it
could contest them. The Commission remanded the matters and instructed me to determine
whether relief from the final orders was warranted (23 FMSHRC at 577).
Following the remand, the parties conferred and reached a comprehensive settlement,
which the Secretary moves that I approve. I have considered the representations and documentation submitted, and I.conclude that the proffered settlement is appropriate under the criteria set
forth in section 11 O(i) of the Act. I especially note the Secretary's representations that the
Respondent was a small operator and is no longer engaged in mining.
The settlement amounts are as follows:

WEST 2000-421-M
Citation/
Order No.

Date

A.C. No. 04-04679-05511
3460096
05126193
3638714
06/08/93
3638715
06/08/93

30 C.F.R

Assessment

Settlement

56.12025
56.12008
56.14107(a)

$ 102.00

$

50.00
81.00

22.00
22.00
22.00

WEST-2000-422-M
Citation/
Order No.

Date

A.C. No. 04-04679-05512
3638716
06/08/93

30 C.F.R

Assessment

56.14130(h)

$

50.00

Settlement

$

22.00

WEST 2000-423-M
Citation/
Order Nos.

30 C.F.R

Assessment

Settlement

A.C. No. 04-04679-05513
3911910
03/12/93

56.14103

$ 382.00

$

A.C. No. 04-04679~05515
3916592 .
06107195

56.5050

50.00

Date

860

22.00

22.00

WEST 2000-424-M
Citation/
Order Nos.

Date

A.C. No. 04-04679-05513
3638707
06/07/93
06/07/9.3
3638708
3638709
06/07/93
3638710
06/07/93
3911923
06/07/93

30 C.F.R

Assessment

56.14107(a)
56.14107(a)
56.12008
56.14107(a)
50.30

$

81.00
81.00
102.00
81.00
90.00

Settlement

$

22.00
22.00
22.00
22.00
22.00

WEST 2000-425-M
Citation/
Order No.

Date

A.C. No. 04-04679-05514
06/07/93
3638706

30 C.F.R

Assessment

56.14130(h)

$

50.00

Settlement

$

22.00

WEST 2000-426-M
Citation/
Order Nos.

Date

A.C. No. 04-04679-05515
3638705
06/07/93
3638713
06/07/93
3638541
08/18/93
3638542
08/18/93
3638544
08/18/93

30 C.F.R

Assessment

Settlement

56.14101(a)(2)
56.14132(a)
56.141008
56.141008
56.14132(a)

$ 240.00

22.00
22.00
22.00
22.00
22.00

50.00
50.00
50.00
50.00

WEST 2000-427-M 1
Citation/
Order No.

Date

30 C.F.R

Assessment

Settlement

A.C. No~ 04-04679:.05516

1

Docket No. WEST 2000-427-M, originally contained Citation No. 4241113, which was issued on June
25, 1997 and which alleged a violation of30 C.F.R. §56.12028. The Commission declined to remand the proposed
assessment of$50.00 for this alleged violation and the proposed assessment became a final order. During the
settJement negotiations, the Respondent recognized the finality of the order and agreed to pay the penalty in full.

861

3638712
3638546
3911940

06107193
08/18/93
08/18/93

56.141 Ol(a)(3) ·
56.1410l(a)(3)
56.14130(c)

$

.5o.oo·

$ 22.00

50.00
50.00

22.00
22.00

$ 22.00
22.00

A.C. No. 04-04679-05517
3910093
05/03/94
3910094
05/03/94.

56.12025
56.12013

$ 81.00

A.C. No. 04-04679-05519
4341197
03105196

56.12004

$ 102.00

$

$2,023.00

$500.00

50.00

Total:

16.00

WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that within 30 days of this order, the Respondent pay a penalty of$500.00 as
specified above. In addition, within the same 30 days, the Respondent is ORDERED to pay a
penalty of $50.00 for the violation of 56.12028, alleged in Citation No. 4341113 (Docket No.
WEST 20000-427-M (A. C. No. 04-03404-05520)). 2 Upon receipt of payment, this matter is
DISMISSED.

_Dt-J,. d !# &c~
David F. Barbour
Chief Administrative Law Judge

Distribution:
W. Christian Schumann, Esquire, Office of the Solicitor, U.S. Department of Labor, 4015
Wilson Blvd., Arlington, VA 22203
Eric Schoonmaker, Contractor's Sand & Gravel Supply, Inc., P. 0. Box 956, Yreka, CA 96097
Jack Powasnik, Esquire, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 400, Arlington, VA 22203
fwd

2

Payment may be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT
OF LABOR, PAYMENT OFFICE. P. 0. BOX 360250M, PITTSBURGH, PA 15251.

862

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

August 3, 2001
CNIL PENALTY PROCEEDING

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

Docket No. WEVA 98-148
A. C. No. 46-01433-04274

v.

Loveridge No. 22
CONSOLIDATION COAL COMPANY,
Respondent
DECISION ON REMAND
APPROVING SETTLEMENT

Before:

Judge Feldman

The initial decision in this matter held that Consolidation Coal Company's (Consol's)
violations of the mandatory safety standards in 30 C.F.R. §§ 75.400 and 75.360(a)(l), prohibiting
combustible coal dust accumulations in active workings and requiring adequate preshift
examinations, respectively, were not attributable to Consol's unwarrantable failure.
22 FMSHRC 455 (Mar. 2000) (ALJ). On remand, the Commission reversed and reinstated
104(d)(2) Order No. 4889944 concerning Consol's violation of section 75.400 and reversed the
negative unwarrantable failure determination with respect to 104(d) (2) Order No. 4889946
concerning the section 75.360(a)(l) violation. 23 FMSHRC 588 (June 2001). Thus, in light of
its remand decision, the Commission directed me to reconsider the appropriate civil penalty to be
assessed for Order No. 4889944, and to reevaluate whether Consol's violation of section
75.360(a)(l) was unwarrantable and to reconsider the appropriate civil penalty that should be
imposed. Id. at 598.
As a result of a telephone conference with the parties, a settlement has been reached that
resolves all outstanding issues. For settlement purposes, the parties have agreed to reinstatement
of the unwarrantable failure with respect to 104(d)(2) Order No. 4889946. Consol has agreed to
pay the $9,000.00 civil penalty initially proposed by the Secretary for Order No. 4889944.
Consol has also agreed to a reduction in civil penalty, from $9,000.00 to $6,000.00, for Order
No. 4889946. The reduction in civil penalty is based on a reduction in culpability, in that,
having already deciaed to subordinate its coal dust accumulation cleanup efforts to its desire to
complete construction, a decision that has been determined to be unwarrantable in nature, Consol
elected not to note the accumulations in its preshift examination in contemplation of cleaning the
accumulations prior to the resumption of coal production activities. The reduction in civil

863

penalty for Order No. 4889946 is a reflection that Consol's high degree of negligence has
already been considered in the parties' settlement with respect to the unreduced penalty for Order
No. 4889944.
I have considered the representations and documentation submitted in this matter, and I
conclude that the proffered settlement is consistent with the Commission's remand instructions,
and, that it is otherwise appropriate under the criteria set forth in Section 1lO(i) of the.Act.
WHEREFORE, the motion for approval of settlement IS GRANTED, and IT IS ORDERED
that Consolidation Coal Company pay a civil penalty of $15,000.00 in satisfaction of 104(d)(2)
Order Nos. 4889944 and 4889946 within 45 days of this Decision, and, upon receipt of timely
payment, this case IS DISMISSED. 1
,'

Jerold Feldman
Administrative Law Judge

Distribution:
M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Suite 516, Arlington, VA 22203 (Certified Mail)
Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh,
PA 15241 (Certified Mail)

/hs

1

The agreed upon $15,000.00 civil penalty in satisfaction of 104(d)(2) Order Nos.
4889944 and 4889946 is in addition to -the $4,500.00 settlement the parties reached at trial
with respect to the remaining alleged violative conditions that were the subjects of this
proceeding. 22 FMSHRC at 472. Thus, the total civil penalty to be paid by Consol in this
case is $19,500.00.
864

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

August 15, 2001

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

CIVIL PENALTY PROCEEDING
Docket No. VA 2001-10-M
A.C. No. 44-06803-05515

v.
Adco Land Corp. No. 1
VIRGINIA SLATE COMPANY,
Respondent

DECISION
Appearances: Samuel Waters, Conference and Litigation Representative, Warrendale,
Pennsylvania and James Brooks Crawford, Esq., U.S. Department of Labor,
Arlington, Virginia for Petitioner;
V. Cassel Adamson, Jr., Esq., Adamson and Adamson, Richmond, Virginia, for
Respondent.
Before:

Judge Bulluck

This case is before me upon a Petition for Assessment of Penalty filed by the Secretary of
Labor, through the M ine Safety and Health Administration ("MSHA"), against Virginia Slate
Company, pursuant to section l 05(d) of the Federal Mine Safety and Health Act of 1977 ("the
Act"), 30 U.S.C. § 815. The Petition seeks a civil penalty of $600.00 for an alleged violation of
section 56.9315, 30 U.S.C. § 56.9315.
A hearing on the merits was convened in Henrico County, Virginia. Prior to convening
the hearing, the parties negotiated a settlement whereby Respondent agreed to pay $150.00 based
on the fact that the mine has been permanently abandoned and Respondent does not intend to
resume operations in the future. The settlement agreement was approved on the record, pending
filing of the written agreement, and that determination is hereby confirmed.
lhave consiaered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i)
of the Act.

865

· ORDER
The settlement is appropriate and in the public interest. WHEREFORE, the motion for
approval of settlement is GRANTED, it is ORDERED that the Respondent PAY a penalty of
$150.00 within 30 days of this decision. Upon receipt of payment, this case is DISMISSED.

IA~&.JL:.12~

(JJ~e R. Bulluck

Administrative Law Judge

Distribution:
Samuel B. Waters, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
547 Keystone Drive, Suite 400, Warrendale, PA 15086
James Brooks Crawford, Esq., U.S. Department of Labor, Office of the Solicitor, 4015 Wilson
Boulevard, Room 516, Arlington, VA 22203
V. Cassel Adamson, Jr., Esq., Adamson and Adainson, Crozet House, 100 East Main Street,
Richmond, Virginia 23219-2168
nt

866

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

August 16, 200 l
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. VA 99-8-M
A. C. No. 44-06803-05508

VIRGINIA SLATE COMPANY,
Respondent

Adco Land Corp No. I

DECISION ON REMAND
Appearances: M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Secretary;
V. Cassel Adamson, Jr., Esq., Adamson and Adamson, Richmond, Virginia, for
the Respondent.
Before:

Judge Weisberger

This case is before me based upon a decision by the Commission in this matter, 23
FMSHRC 482 (2001), wherein the Commission granted the Secretary of Labor's petition for
discretionary review challenging various determinations made in a decision issued subsequent to
an evidentiary hearing in this matter, 22 FMSHRC 378 (March 2000), and inter alia, remanded
various unwarrantable failure and penalty assessment issues regarding a number of orders and
citations at issue in this case.

A.

Unwarrantable failure
1.

Order No. 7711661 and Citation No. 7711663.

The Commission vacated my initial finding that the violations cited in Order No.
7711661 and Citation No. 7711663 were not the result of Virginia's unwarrantable failure
finding that error was made when I applied my credibility determination concerning Williams'
testimony about the belt violation in Citation No. 7711660 to [my] unwarrantability analysis of
the belt violations in Order No. 7711661 and Citation No. 7711663, and failed to consider
Williams' testimony that the belts involved in Order No. 7711661 and Citation No. 7711663
were run without guards during production. 23 FMSHRC, filUIDl at 486-487. Specifically, the
Commission issued a remand"... for the Judge to properly consider testimony that fairly detracts
from his decision on that issue." 23 FMSHRC supra at 487.
867

I take cognizance of Williams' testimony that the belts involved in Order No. 7711661
and Citation No. 7711663 had both been run in an unguarded state during production. In contrast,
Adamson testified that from May 10, 1998 through June 1, 1998 the plant was not in operation,
was not producing any material and no belts were in operation because the conveyor was being
worked on. He also testified that only late in the afternoon on June 1, did the plant operate in
order to test the crusher, and only six buckets of material were processed. I carefully observed
the demeanor of Adamson and Williams during their testimony, and found Adamson to be more
credible than Williams, and accordingly accept Adamson's testimony. I also accept his
uncontradicted testimony that Virginia had decided to make sure that all guards be in place prior
to the start-up of normal operation, but before this task could be performed, Inspector Hom
arrived at the site to commence his inspection.
Within this context I find that Virginia's actions regarding the violative conditions cited
in Order No. 7711661 and Citation No. 7711663 did not reach the level of aggravated conduct,
and hence did not constitute an unwarrantable failure (see, Emery Mining Corp., 9 FMSHRC
1997 (Dec. 1987)).
2.

Order No. 7711667.

According to Hom, Adamson, III, told him that he was responsible for checking the area
at issue, and that Virginia had started using a front-end loader the week prior to June 2.
However, the Secretary did not call Adamson, III, as a witness, nor did it offer any excuse for its
failure to do so. Williams testified that since February 9, 1998, a front-end loader had been used
to load the hopper. Hom concluded that the violation was as a result of Virginia's unwarrantable
failure since Virginia knew of the violative condition and did nothing about it.
On the other hand Adamson testified that from March 19, 1997, when operations
commenced, until June 1, 1998, normally the excavator was used to load the hopper, but that on
June 1 the front-end loader was used to load the hopper for about 10 minutes. I observed the
demeanor of Williams and Adamson and found Adamson to be the more credible witness.
Within the context of the above record, I find that the Secretary has failed to adduce sufficient
evidence to establish that the violative condition, i.e. that berms, bumper-blocks, safety hooks, or
similar impeding devices were not provided at the dumping location at issue, to have been so
obvious, that the operator should have had knowledge of these conditions. I thus find that it has
not been established that Virginia' s negligence reached the level of aggravated conduct.
Therefore, I find that it has not been established that the violation was as a result of its
unwarrantable faih-!re.

3.

Order No. 7711681.

In vacating the initial determination that Order No. 771168 I was not due to
unwarrantable failure, and remanding for reconsideration, the Commission concluded that" ... the

868

Judge failed to examine such aggravating factors that may have been relevant to his
unwarrantability analysis, such as the extent and duration of the operators failure to carry out
preshift examinations or its knowledge that it was not adequately carrying out such examinations.
The Judge also failed to consider the underlying violations which went undetected or uncorrected
because of the operators inadequate preshift examination and conditions." 23 FMSHRC supra at
492. The Commission further noted that the obviousness posed by safety violations involving
inoperable horns and defective seatbelts should have been considered as a relevant factor in the
analysis of whether the operator' s failure to carry out the examinations was unwarrantable. In its
remand the Commission directed as follows: "The Judge must address all the relevant factors
relating to the preshift examination violation, including the underlying violations that were not
detected or corrected because of the inadequate examinations." Id. at 492.
The underlying violations, for which proper preshift examinations had not been
performed, relate to safety defects on mobil equipment such as inoperable horns, and lack of
seatbelts. The record does not contain any evidence as to how long these conditions were in
existence. The only evidence of record relating to the extent and duration of Virginia's failure to
carry out adequate preshift examinations, or its knowledge that it was not adequately carrying
such examinations, consists of Horn's testimony that when he previously was at the mine he
discussed with Terry and Adamson III, "the importance" of the cited standard. He indicated that
his conclusion that the violation was unwarrantable was based upon his opinion that Terry, the
foreman, knew of the regulation and failed to make preshift examinations, and that there was no
reason that these hazards and safety defects should not have been found and corrected (Tr. 52,
Oct. 14, 1999). There is nothing in the record to indicate how long the safety defects had been in
existence prior to being cited. Nor is there anything to the record to indicate for how long a
period of time Virginia had not been making preshift examinations or had knowledge that it was
not carrying out such examinations. Within this context, and for the reasons previously cited in
my initial decision, (22 FMSHRC supra, at 390), I find that the Secretary has failed to establish
that this violation was as a result of Virginia's unwarrantable failure.

B.

Penalty Assessment Issues
1.

Citation No. 7711660.

I reiterate my earlier findings that inasmuch as the violative condition could have resulted
in a permanently disabling injury or fatality, that the level of gravity of the violation was
relatively high. For the reasons set forth in the initial decision, (22 FMSHRC supra, at 381 382), I conclude that the level of Virginia's negligence to have been only moderate, and thus less
than that asserted bx_ the Secretary. I also find that the violative condition was abated in a timely
fashion. There is no evidence in the record that imposition of a penalty would have any adverse
effect on Virginia's ability to remain in operation. There is no evidence to suggest that
Virginia's history of violations was either very good or very bad, and hence I consider it to have a
neutral effect on the analysis of the penalty to be imposed. Taking all of the factors set forth in
Section 110(c) of the Act, into account, especially giving some weight to a reduction in the level
869

of negligence from that asserted by the Secretary, I find that a ·penalty of $300. 00 is appropriate.
2.

Order No. 771161.

I find that since the violative condition could have resulted in an injury to a miner, and
that the level of gravity was relatively high. The condition was abated in a timely fashion and
there is no evidence th~t imposition of a penalty would have any adverse effect on Virginia's
ability to remain in operation. There is no evidence in the record that any penalty should be
mitigated by the size of Virginia's operation. A penalty shouJd not be mitigated or increased as
the result of the history of violations.
I find, based upon Adamson's testimony, that I find credible that the guard at issue had
been removed to clean the area. Accordingly, Virginia's negligence was no more than moderate.
Taking into account all of the above, and especially that the level of Virginia's negligence was
less than that asserted by the Secretary, I find that a penalty of $300.00 is appropriate.
3.

Citation No. 7711665.

The violative condition was abated in a timely fashion. There is no evidence that
imposition of a penalty would have any adverse effect on Virginia's ability to remain in
operation. There is no evidence in the record that any penalty should be mitigated by the size of
Virginia's operation. There is no evidence to suggest that Virginia's history of violations was
either very good or very bad, and hence I consider it to have a neutral effect on the analysis of the
penalty to be imposed ..
Taking into account all of the above, and especially that the level of Virginia's negligence
was less than that asserted by the Secretary, I find that a penalty of $300.00 is appropriate.
4.

Order No. 7711667.

Since, as a consequence of the violative condition there was a danger of over turning I
find that the gravity of this violation to have been relatively high. According to Inspector Hom,
Adamson, Ill, told him that he was responsible for checking the area at issue, and that Virginia
had started using a front-end loader the week prior to June 2. However, the Secretary did not call
Adamson, Ill, as a witness nor did it offer any excuse for its failure to do so. Williams testified
that since February 9, 1998, a front-end loader had been used to load the hopper.
On the other hand Adamson testified that from March 19, 1997, when operations
commenced, until June 1, 1998, normally the excavator was used to load the hopper, but that on
June 1 the front-end loader was used to load the hopper for about 10 minutes. I observed the
demeanor of Williams and Adamson and found Adamson to be the more credible witness.
Within the context of the above record, I find that the Secretary has failed to adduce sufficient
evidence to establish that the violative condition, i.e. that berms, bumper-blocks, safety hooks, or·
870

similar impeding devices were not provided at the dumping location at issue, to have been so
obvious, or that the operator had specific knowledge of these conditions, so as to raise the level
of Virginia's negligence to more than moderate.
The violative condition was abated in a timely fashion. There is no evidence that
imposition of a penalty would have any adverse effect on Virginia's ability to remain in
operation. There is no evidence in the record that any penalty should be mitigated by the size of
Virginia's operation. There is no evidence to suggest that Virginia's history of violations was
either very good or very bad, and hence I consider it to have a neutral effect on the analyzes of
the penalty to be imposed.
Taking into account all of the above, and especially that the level of Virginia's negligence
was less than that asserted by the Secretary, I find that a penalty of $200.00 is appropriate.
5.

OrderNo. 7711681.

The violative condition was abated in a timely fashion. There is no evidence that
imposition of a penalty would have any adverse effect on Virginia's ability to remain in
operation. There is no evidence in the record that any penalty should be mitigated by the size of
Virginia' s operation. There is no evidence to suggest that Virginia's history of violations was
either very good or very bad, and hence I consider it to have a neutral effect on the analysis of the
penalty to be imposed.
Taking into account all of the above, and especially that the level of Virginia's negligence
was less than that asserted by the Secretary, I find that a penalty of $300.00 is appropriate.
Order

It is Ordered that if Virginia has not paid the penalties ordered in the original decision,
22 FMSHRC, fil!lilll, then Virginia shall pay a total civil penalty of $4,400.00 for the violations
found in the initial decision, 22 FMSHRC supra.

~l~

A»ram Weisberger
Administrative Law Judge

871

Distribution: Certified Mail
M. YusufM. Mohamed, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson
Boulevard, Suite 516, Arlington, VA 22203
V. Cassel Adamson, Jr., Esq., Adamson and Adamson, Crozet House, 100 East Main Street,
Richmond, VA 22219-~168
/set

872

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

August 16, 2001
CNIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMIN1STRATION (MSHA),
Petitioner
v.

Docket No. WEST 2000-306-M
A. C. No. 45-03212-05518
Docket No. WEST 2000-307-M
A.C. No. 45-03212-05519

HARD ROCK MINING COMPANY
OF OLYMPIA, INC.,
Respondent

Docket No. WEST 2000-308-M
A.C. No. 45-03212-05520
Docket No. WEST 2000-458-M
A.C. No. 45-032 12-05521
Docket No. WEST 2000-500-M
A.C. No. 45-03212-05522
Docket No. WEST 2000-577-M
A.C. No. 45-03212-05523
Hard Rock Pit

ORDER LIFTING STAY
DEFAULT DECISION
Before:

Judge Hodgdon

These cases are before me on Petitions for Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Proceedings in
the cases are currently stayed. 1 The petitions allege 42 violations of the Secretary's health and
safety standards and seek penalties of $35,314.00. For the reasons set forth below, I find that the
company is in default, affirm the citations and orders and assess penalties of$35,314.00.

1

Docket Nos. WEST 2000-306-M, WEST 2000-307-M and WEST 2000-308-M have
been on stay since August 23, 2000. Docket No. WEST 2000-458-M has been on stay since
August 24, 2000. Docket No. WEST 2000-500-M has been on stay since October 20, 2000, and
Docket No. WEST 2000-577-M has been stayed since March 27, 2001.
873

On July 2, 200 I, counsel for the Secretary filed a motion requesting that the stays be
lifted and the cases set for hearing. In his motion, however, counsel noted that he had not been
able to contact the Respondent by telephone and that the last letter he sent to the Respondent by
certified mail was returned "unclaimed." Attempts by this office to set up a telephone conference
call for the purpose of setting a hearing date met with the same results.
Permission was granted for Respondent's counsel to withdraw from the case on October
20, 2000. A copy of the order granting permission was sent to David F. Lapp, President, Hard
Rock Mining Co., at the company's address ofrecord and a green, "return receipt" card signed by
what appears to be a "Karla Davis" was received back. Since that time, however; no return
receipt cards have been received back from mail sent to the Hard Rock address of record. In
addition, counsel for the Secretary stated in a December 28, 2000, pleading that he had been
advised by Hard Rock's former counsel that both Lapp and the company h?d filed for
bankruptcy. On the other hand, the March 27, 2001, order canceling the hearing and staying the
proceedings in Docket No. WEST 2000-577-M was sent to Rosemary M. Short, Bookkeeper,
Hard Rock Mining Co., in Tumwater, Washington, and the return receipt card, signed by "D.
Lapp," was received back.2
Concluding that Hard Rock had not kept either the Commission or the Secretary apprized
of its status,3 that it was not clear what the company' s position was with regard to these
proceedings, or even if the company still existed,4 I issued an Order to Show Cause to the
company on July 11, 2001 . The order ordered Hard Rock to show cause why it should not be
held in default in these proceedings and ordered to pay penalties in the amount of $35,314.00 for
failure to prosecute its case.
The order was sent to the company's two addresses of record by both certified mail-return
receipt requested and regular mail and required a response within 21 days of its date. It provided
that Hard Rock could respond to the order by furnishing both the Secretary and the Commission
with an address and a telephone number at which it could be contacted. It further stated that:

2

This address was provided by the company in response to a telephone inquiry from this

office.
3

Commission Rule 5(c), 29 C.F.R. § 2700.S(c), requires, among other things, that:
"Written notice of any change in address or telephone number shall be given promptly to the
Commission or the Judge and all other parties."
4

Telephone inquiries by this office seeking a telephone number for the company in both
Olympia and Tumwater were met with the statement that there was no listing for the company.
874

"Failure to respond to this order will result in the company being held in default and
ordered to pay the $35,314.00 in proposed penalties in these cases." To date, no response has
been received.5
Order
Based on these facts, I conclude that the Respondent is in DEFAULT in these matters.
Accordingly, the stays· are LIFTED, all of the orders and citations in these dockets are
AFFIR1'1ED and Hard Rock Mining Company of Olympia, Inc., is ORDERED TO PAY civil
penalties of $35,314.00 within 30 days of the date of this decision.

~~~

Administrative Law Judge

Distribution: (Certified Mail) (Regular Mail)
Matthew L. Vandal, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third
Avenue, Suite 945, Seattle, WA 98101-3212
David F. Lapp, President, Hard Rock Mining Company, 10145 Littlerock Road SW, Olympia,
WA 98512
Rosemary M. Short, Bookkeeper, Hard Rock Mining Company, 2827 29'h Avenue SW,
Tumwater, WA 98512
nt

5

Both orders sent to Rosemary M. Short, Bookkeeper, Hard Rock Mining Co., 2827 29rh
Avenue SW, Tumwater, WA 98512, were returned marked '~Undeliverable as addressed" and
''No forward order on file." The certified order sent to David F. Lapp, President, Hard Rock
Mining Company, 10145 Littlepage Road SW, Olympia, WA 98512, was returned marked
"Unclaimed" after three attempts were made by the Postal Service to deliver it.
875

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204 -3 582·
303 - 844 - 3993/FAX 303 - 844 - 5 2 68

August 28, 2001
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 99-1-M
A.C. No. 39-01315-05512

v.

HM-2 Crusher

HIGMAN SAND & GRAVEL, INC.,
Respondent

DECISION
Appearances:

Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr, Sibux City, Iowa,
for Respondent.

Before:

Judge Cetti

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, 30 U.S.C. Section 801 et seq.,
the "Mine Act" charging Higman Sand & Gravel, Inc. (hereafter Higman) with a violation of
Section 103(a). 1 of the Mine Act with respect to Inspector Sprague's inspection of the mine

1

Section 103(a) of the Mine Act provides, in pertinent part:
Authorized representatives of the Secretary ... shall make
frequent inspections and investigations in coal or other mines each
year for the purpose of (I) obtaining, utilizing, and disseminating
information relating to health and safety conditions, the causes of
accide~ts, and the causes of diseases and physical impairments
originating in such mines, ... and (4) determining whether there is
compliance with the mandatory health or safety standards or with
any citation, order, or decision issued under this title or other
requirements of this Act .... for the purpose of making any
inspection or investigation under this Act, ... any authorized
representative of the Secretary ... shall have a right of entry to,
upon, or through any coal or other mine.
876

known as HM-2 Crusher Mine, I.D. No. 39-01315, whieh is located at the Volin Pit just outside
the city limits of the town of Volin, South Dakota.
The primary issue presented in this case is whether or not Higman violated Section 103(a)
of the Mine Act with respect to Inspector Sprague's April 30, l998, inspection of the HM-2
Crusher Mine.
Section 103(a) of the Mine Act, in pertinent part, provides that for the purpose of making
any inspections under the Mine Act, any authorized representative of the Secretary "shall have a
right of entry to, upon or through any coal or other mine." All parties agree that an authorized
inspector has that right of entry. The issue presented is whether Inspector Sprague's right of
entry "to or upon or through" the HM-2 Crusher Mine was hindered in any way that constituted
either a direct or indirect denial of his right to inspect the HM-2 Crusher Mine.
One aspect of this issue is the question of whether Higman's actions under the facts and
circumstances of this case constituted a denial of Inspector Sprague's "right of entry to, upon or
through" the mine designated as the HM-2 Crusher Mine. The Secretary has the burden of proof
on this issue. Upon careful evaluation of all the evidence, I find that the preponderance of the
evidence fails to establish a violation of 103(a) of the Act for the.reason described below.
Citation No. 7916226, which is the sole citation challenged in the proceeding, identifies
the HM-2 Crusher Mine, No. 39-01315, as the mine which Inspector Sprague was inspecting and
the mine to which Sprague was denied entry. The citation reads as follows:
Mr. Harold Higman, owner ofHigmcµi Sand & Gravel Inc. refuses
to provide an authorized representatiV.e (sic) of the Secretary the
infounation that he needs to locate the crushing unit. This refusal
to provide this information constitutes (sic) a denial of right of
entry and is a violation of the provisions of 103 of the Mine Act.
Mr. Higman is engaging in aggravative conduct, inexcusable
conduct consisting of more than ordinary negligence. (Emphasis
added).
It is well established that it is a very serious violation of the Mine Act to prohibit an
MSHA inspector from inspecting a mine to investigate or to determine compliance with the Mine
Act and the safety regulations.

A denial of entry can include not only direct denials of entry but also indirect denials by
action intended to prevent inspection of the mine by interference, delays, or harassment.
MSHA's Program Policy Manual - Volume I - describes indirect denials of entry as follows:
Indirect denials are those in which an operator or his agent does not
directly refuse right of entry, but takes roundabout action to

877

prevent inspection of the mine by interference,·delays, or
harassment. There must be a clear indication of intent and proof of
indirectly denying entry. For example, access to the mine is
blocked by a locked gate or other means of blockage. However, a
locked gate or other means of blockage, in and of itself, does not
necessarily constitute a denial of entry. Mine management may
have only closed the mine for the day and blocked the mine access
road to prevent vandalism. However, when a locked gate if
accompanied by continued production and deliberate avoidance of
communication with the inspector~ the mine operator is denying
MSHA right of entry to the mine property: Other examples are
listed below. The list is not.meant to be all-inclusive, and
reference is made only to some ofthe situations which may
constitute an indirect denial.
a. Refusal to furnish available transportation on mine property when
it is difficult or impossible to inspect on foot;
b. Refusal to provide information regarding, or to accompany
inspectors into areas considered unsafe to travel without specific
knowledge of the subject mine (e.g., knowledge of on-shift blasting
schedules in metal mines;
c. Withdrawing mine personnel when the inspector arrives;
d. Removing power from the mine or the mine ventilation system
when an inspector arrives (before or after production);
e. Denying access to equipment or the immediate work area;

f. Deliberately withholding vital information (ownership,
responsible person, name of operator, disposition of product, ownership of
equipment, etc.); and
g. Denying entry for failure to have a search warrant. The Supreme Court, in
the 1981 case of Donovan v. Dewey and Waukesha Lime and
Stone Company, upheld the authority ofMSHA to conduct
warrantless inspections.
When the mine has an I.D. number and the operator is known
and present and does not verbally refuse right of entry, but
takes indirect action to prevent inspection of the mine, the
inspector should explain the particular actions which are
878

considered to be a denial of entry, and then should proceed
in accordance with the above instructions pertaining to
Section 103(a) of the Act, Denials of Entry.
The Program Manual also states with respect to inspection of small mines the following:
IV.G-7

Inspection of Small Mines

Small operations often do not have the resources normally
available to larger mines. Time devoted to accompanying
inspectors often must be subtracted from productive endeavors and
may be a financial burden on the operator. In addition, while the
Act entitles the operator to accompany the inspector there is no
standard requiring the operator to do so. (Emphasis added).
Background

Higman operates three different sand and gravel surface mines. Each mine has a different
location and Mine I.D. No. Each mine is located at a different well-known gravel pit. One mine
LD. No. 1300691 is located at Akron Pit in Akron, Iowa, where the company has its
headquarters. A second mine I.D. No. 39-00993 designated as "Screener Pit No. 1" is located at
the Grothe Pit in South Dakota and the third mine which is the mine we are specifically
concerned with in this proceeding, has the designated name of"HM-2 Crusher" and is located at
the Volin Pit next to the town of Volin, South Dakota. The evidence presented satisfactorily
established that various MSHA inspectors have inspected the HM-2 Crusher Mine at that site
since the 1980s. It is undisputed that the "HM-2 Crusher" Mine is properly registered with
MSHA as an "intermittent mine."
It satisfactorily appears from the record that at least since the 1980s the HM-2 Crusher
Mine has been operating at the Volin Pit located within one-half mile of the city limits of the
town of Volin, South Dakota. It has been inspected by various MSHA inspectors at that location
without any impediment.

879

Stipulations
The parties at the beginning of the hearing entered into the record the following
stipulations:
1. Respondent is engaged in the mining and selling of sand and gravel in the United
States, and its mining <?perations affect interstate commerce.
2. Respondent is the owner and operator of the HM-2 Crusher Mine, I.D. No. 39-01315.
3. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ et·seq. ("the Mine Act").
4. The Administrative Law Judge has jurisdiction in this matter.
5. The proposed penalties will not affect the Respondent's ability to continue in business.

Additional Stipulations
As the hearing progressed the parties made these significant additional stipulations.
The Respondent proposed and the Secretary's counsel, after conferring with MSHA
Inspectors King and Sprague, stipulated that Colleen A. Olson and Mark Rasmussen, if called,
would testify as follows:

Colleen Olson
A. Colleen Olson, if called, would testify that she is an employee of Higman Sand &
Gravel; that she works at the Volin Pit in Volin, South Dakota. She started her employment at
the Volin Pit on September of 1991 and has been there ever since. She still works there.

Ms. Olson lives in the town of Volin and is at the Volin Pit almost every day. On the
days or the times during the day when she is not actually at the pit, she transfers the phone to her
house or to whatever different phone number where she might be.
Ms. Olson would testify that the pit is open for business continuously; that customers
come and go on a ~egular basis; that Higman trucks come and go on a regular basis; that the
Higman trucks are driven by Higman employees. When there is not a loader operator on-site, the
Higman driver will operate the loader to load his truck.
Olson will testify that her duties include weighing trucks and taking orders; that the
scale house which serves as her work area is heated so that she can be there year-round.

880

Ms. Olson would testify it has been several years since they actually conducted any
crushing operation at the plant at the Volin Pit; but that more often the most common activity at
the Volin Pit is removing materials from the stockpiles.
Ms. Olson would testify she has not heard of a machine called "HM-2 Crusher;" she
has been there when MSHA inspectors have come around -- that they are welcome to inspect the
pit; and that, if asked, !,ihe would show them around the pit. More commonly, the loader
operator, which might be Jim Abbott or Mark Rasmussen, would actually show the inspector
around the pit. But if asked, she would be happy to do so, and would not require the approval of
either Harold Higman or David Higman to allow the inspector to examine the pit or any of the
equipment that is located there.

Mark Rasmussen

B. Mark Rasmussen, if called, would testify to the same things as Colleen Olson.
Specifically, Mark Rasmussen, if called, would testify that he started with Higman in the spring
of 1974. He has been a full-time Higman employee since that date; he has worked at all three of
the pits - Volin, Richland, and Akron - from time to time.
He would testify that among the things he has done at the Volin Pit are operating a
Grizzly, which is basically a machine with bars that allows the really big rocks to pass on through
and the small ones to pass down the bars, and the smaller materials to fall through; he has
frequently operated a loader at Volin and, on occasion, has operated a screen at Volin. He would
testify that there hasn ' t been any actual crushing at the Volin site in the last few years; that at
Volin they can and do pull material out of the bank with a loader; that material doesn' t require
anything significant by way of processing; he frequently operates the loader; and when he's not
there, the loader, most of the time, is left behind so the drivers of Higman trucks can operate the
loader themselves and load their material.
Inspector John R. King

Inspector John R. King did not issue the citation in question but was the first witness
called by. the Secretary. King testified he inspected the HM-2 Crusher operation in Volin, South
Dakota, on September 18, 1996. Along with him was his supervisor Tyrone Goodspeed. King
had no trouble finding the HM-2 Mine at the Volin Pit one-half mile from the town of Volin,
South Dakota. He got the location of the mine from the report of the inspector who had
previously inspecte~ the HM-2 Mine at that same location. At the mine site King talked to three
mine employees. In addition to talking to Colleen Olson who worked at the mine scale house, he
talked to Jim Abbott the mine's foreman at the Volin Pit and to Mr. Bringman, the equipment
operator. The sole citation King issued as a result of the inspection was for a seat-belt violation.
King again stopped at the HM-2 Crusher Mine in July 1997. The only person he saw at the mine
site on that visit was the scale house operator, Colleen Olson, who told him they were ''not
881

running." King stated he concluded from that statement "they werejust simply running out of
their stockpiles." King testified that, in addition to seeing the employee Colleen Olson, he recalls
seeing a front-end loader and the equipment listed in Ex.2B, Tr. 60.
He did not see a crusher machine on any of his visits to the Volin Pit mine site. On crossexamination King conceded that there is no list of equipment nor any equipment listed as being
associated with the HM-2 Crusher Mine and that tnost operations similar to the HM-2 Mine
bring different types of equipment in and out of the mine site. (Tr. 58). The Secretary through
counsel stated that it is not the Secretary's or MSHA's position that a machine called the HM-2
Crusher existed at the HM-2 Crusher Mine site. (Tr. 62).
Olson's statement that they were "not running," in the context of the facts established at
the hearing, obviously meant the mine, at that time was not engaged in production activity such
as extracting sand or rock from the earth or engaged in actively processing such material.
Respondent presented evidence that the mine was continuously open for mining activity needed
to take care of customer orders for sand and rocks including loading and delivery of material
from the mine's stockpiles. Cf Robert L. Weaver. Docket Nos. YORK 93-25-M et al.. 15
FMSHRC 2117 (Oct. 4. 1993) (ALJ Melick). Evidence was presented that the sand and rock
taken from the Volin Pit needed very.little processing other than segregating rocks by size.
Respondent also presented evidence that rocks and sand at the mine were intermittently extracted
from the earth to meet the demands of their customers and the necessary mining equipment to do
that was kept at the mine site. Evidence was also presented that the rock at the Volin Pit was so
hard it was not economically feasible to crush it. The mine screens out the larger boulders with a
grizzly and generally sells these large boulders to the U.S. Army Corps. The smaller rocks only
need segregation as to size.

Inspector Jeran Sprague and the Higmans
On April 30, 1998, Inspector Jeran Sprague, who issued the citation in question, drove to
the HM-2 Crusher Mine site at the Volin Pit at Volin, South Dakota, for the purpose of
inspecting the HM-2 Crusher Mine. He had no problem locating the mine site or entering the
mine site. It is undisputed that he could have freely inspected any and every part of the 350 acre
HM-2 Mine site if he wished to do so. He observed the scale house and testified he saw a limited
amount of mining equipment. He saw a trap conveyor screener. He explained that a "trap" is the
equipment in which the mined material is dumped. He saw the conveyor that conveys the mined
material from the trap to a screen that screens the material out the top. He believes he saw a
dump truck. He did not see any crushing machine. He did see some weeds that had grown up. It
appeared to Inspector Sprague that the mine site at the Volin Pit may have been abandoned and
might be operating at-a new site that had not been reported to the MSHA office.
Not seeing anyone and seeing only a limited amount of equipment on his arrival at the
HM-2 Crusher Mine site he drove to the Higman office located at the gravel pit in Akron, Iowa,
even though it was outside his normal travel area. As he arrived at the Akron, Iowa, mine site he

882

saw a crushing plant behind the Higman office. On entering the office he first saw David
Higman, who is the office man for the company. David Higman was talking to a customer.
Sprague states he asked if they had someone who could go with him and look at the area out back
of the office. Sprague testified that he was told that they did not. Later he talked to Harold
Higman who is the field man for Higman. Harold, upon seeing the inspector, told him he
appeared to be the inspector who on a prior occasion, on leaving the mine property, spun the
wheels of his vehicle throwing rocks, one of which struck and injured his son's eye. Sprague
denied he was the one who did that. Shortly thereafter Harold Higman left the office to keep a
doctor' s appointment.
Higman testified·that they were bewildered when Sprague came into the office at the
Akron pit at Akron, Iowa, and asked them where the HM-2 Crusher Mine was operating. They
told him that the HM-2 Crusher Mine was where it always has been at the Volin Pit where he and
other inspectors had always freely made their inspections. In essence, Higman told Inspector
Sprague he could inspect the HM-2 Mine and Higman's other two mines without any restrictions
just as he had done in the past.
There is ambiguity in Sprague's testimony as to what he was asking for when he entered
the Higman office on April 30, 1998, and told Higman he wanted to see or inspect the HM-2
Crusher. They were bewildered because they were sure he knew where that mine was located.
They told him that the HM-2 Crusher Mine was where it had always been, where he had
inspected it before at the Volin Pit. Apparently, Sprague refused to accept that answer as to the
location of the HM-2 Crusher Mine and insisted that they show him the crushing machine named
or designated the HM-2 Crusher. Higman told Sprague that they had no crusher machine or
other machine that was named, numbered, or designated HM-2 Crusher. Sprague apparently
refused to accept that answer and, thereafter, told Higman he was going to issue a citation
charging Higman with a violation of Section 103(a) of the Act if they did not show him the HM2 Crusher machine. At that time Higman had in the area in back of the office at the Akron Pit all
four of the crusher machines they owned. Three of the crushers were operational and a fourth, a
blue crusher had a "For Sale" sign on it, was not operational. Inspector Sprague showed no
interest in seeing or inspecting any crusher machine other than the one named or designated
HM-2 Crusher. No proof of the existence of such a crusher was offered. Sprague told Higman
he was going to issue a citation for a violation of 103(a) of the Mine Act for not showing him the
HM-2 crushing machine. Higman told him to do whatever he had to do.
Sprague left Higman's office and phoned his supervisor. He then returned that afternoon
to the Higman office and waited for the Higmans to return to their Akron office. When David
Higman .returned, Sprague served the citation at issue in this proceeding to David Higman and, in
addition, gave Higman a deadline of 30 minutes to show him the HM-2 Cmsher machine.
Sprague told David Higman if you don't show me or tell me where the HM-2 Crusher is located
within the next 30 minutes I'm going to close you down. David Higman testified he thought real
hard on how he could keep the business from being shut down and decided that the blue crusher
with the "For Sale" on it was as likely as any of their crushers to be one that may have been used

883

at the HM-2 Crusher Mine at the Volin Pit sometime in the past. He told Sprague that blue
crusher with the "For Sale" sign on it was probably the one he was looking for. He did not tell
Sprague the HM-2 Crusher Mine at Volin was fot sale. That information apparently satisfied the
inspector. He did not inspect or request to see the crusher with the "For Sale" on it or any of the
three operable crushers that were "out back" of Higman's office at the Akron site. He did not
issue an order closing the mine down.
The testimony of Inspector Sprague, as well as the citation itself, demonstrates Sprague
issued the citation because he was not shown or told the location of a crushing machine named or
designated HM-2 Crusher. Sprague wrote in his field notes, Pet. Ex. 4 top line of page 2, that
when Higman asked which one of the crushers he was talking about he told them "whichever
crusher is assigned that number" in obvious reference to the mine named HM-2 Crusher. The
Higmans phoned the MSHA field office after Sprague left their office and to make sure there was
no confusion informed Sprague's supervisor that they were not selling the HM-2 Crusher Mine
operation at the Volin Pit.

Conclusion
I agree with counsel for the Secretary that "mine operators are required to supply relevant,
available information pertaining to where operations are being conducted when it pertains to a
particular mine I.D. number, irrespective of the equipment that's being operated at any given
time." (Tr. 291). I also agree that consensual exchange of information between MSHA and
operator is to be encouraged.
I find in this case, however, based on the record that the preponderance of the evidence
presented fails to establish that Respondent materially impeded an inspection of the HM-2
Crusher Mine. It is elementary but important to not lose sight of the well-established fact that, in
an enforcement action before the Commission, the Secretary bears the burden of proving any
alleged violation; Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992); Jim Walter
Resources Inc., 9 FMSHRC 903, 907 (May 1987). In this case the Secretary failed to carry her
burden of proof. The evidence presented fails to establish a violation of 103(a) of the Act. The
citation must be vacated.

Finding of Facts

l . Higman Sand & Gravel, Inc., operates three gravel pits. "HM-2 Crusher" is just
outside of Volin, South Dakota. "Iowa Portable No. 1 is at Akron, Iowa. The Grothe pit,
otherwise.known as "Screener Pit No. 1",is outside of Richland, South Dakota. (Tr. 202-204).
2. HM-2 Crusher in the context of this case refers to the HM-2 Crusher Mine located at
the Volin Pit just outside the city limits of the town of Volin, South Dakota. (Tr. 211 ).
3. There has been no crushing done at the Volin pit in several years. (Tr. 210).

884

4. The Higmans told Inspector Sprague that the HM-2 Crusher Mine was at the Volin Pit,
South Dakota, and that he could inspect it any time without any impediment just as he had done
on prior occasions.
5. "HM-2 Crusher" is an intermittent operation for at least the last several years. There is
mining equipment there, such as trucks, pay loader, conveyor, generally a grizzly, a scale house,
and fuel storage. (Tr. 235-238).
6. There is no particular list of equipment associated with "HM-2 Crusher" (Tr. 58). and
the Higman Sand & Gravel has not given names to any of its crushers or other machines. (Tr.
204-208).
7. Neither of the Secretary' s two witnesses were aware of any instances that anyone had
refused an MSHA inspector the opportunity to inspect the HM-2 Crusher Mine at Volin, South
Dakota, pit or at the other two Higman pits. (Tr. 63, 69-72, 78, 136).
8. Inspector Sprague was mistaken when he assumed that the HM-2 Crusher Mine had
moved its operation away from the Volin Pit site.
9. On April 30, 1998, MSHA Inspector Jeran Sprague entered upon Higman 's Akron,
Iowa pit and asked Harold Higman and David Higman, officers of Higman Sand & Gravel, Inc.,
to see a particular crusher assigned the name "HM-2 Crusher". (Tr. 222, 14-141).
10. Higman Sand & Gravel has no particular machine named or designated "HM-2
Crusher" and so informed Inspector Sprague. {Tr. 221, 269-270).
11. MSHA Inspector Jeran Sprague at all relevant times was afforded the opportunity to
freely inspect the "HM-2 Crusher" which was the mine located just outside Volin, South Dakota
as well as Higrnan's other two mines. (Tr. 136, 223, 272-273, 276).
ORDER

It is ORDERED that Citation No. 7916226 alleging a violation of 103(a) of the Act shall
be and is hereby VACATED and the above-captioned case is DISMISSED.

/ .~,

{

0

.

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'

Au st F. Cett1
Administrative Law Judge

885

(

~~,

~

Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716 (Certified Mail)

Jeffrey A. Sar, Esq., BARON, SAR, GOODWIN, GILL & LOHR, 750 Pierce St., Sioux City, IA
51102 (Certified Mail)

/sh

886

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

August 29, 2001
BRIDGER COAL COMPANY.,
Contestant

CONTEST PROCEEDING
Docket No. WEST 2001-334-R
Order No. 7636506

V.

SECRETARY OF LABOR, MINE
SAFETY AND HEALTH, MSHA
Respondent

Jim Bridger Mine

DECISION GRANTING CONTESTANT'S MOTION FOR SUMMARY DECISION
Before:

Judge Weisberger

At issue before me, in this contest proceeding, is a motion to dismiss filed by the
Contestant, Bridger Coal Company, ("Bridger").
Summary of the Facts 1
Howard McCoy, Jr. has been employed by Bridger at its Jim Bridger Mine ("the Mine")
continuously since January 1981. When hired, McCoy was already an experienced miner and
was given "Newly Employed Experienced Miner" training pursuant to 30 C.F.R. Section 48.26.
McCoy is currently classified as a Mine Service Operator and has been so continuously since
November 1999. As a Mine Service Operator, McCoy's duties primarily have involved moving
equipment around the Mine property. McCoy also helps out on occasion in the performance of
additional jobs, as needed and as directed.
From time to time McCoy has assisted, as directed and under immediate supervision, in
the operation of bridge cranes, such as the overhead shop crane and those in the draglines, by
pressing the ''up" or "down" button.
A bridge crane is a motorized indoor unit that runs on rails mounted near the ceiling
and/or walls as the bridge crane operator positions it ("east" or "west" and "north" or "south") to
lift loads too heavy to be safely lifted manually, by means of a hook that is raised or lowered
from above with the-push of a button (" up" or "down") on the control device (either a remote
control or a control that hangs from the crane by a cable).

'The facts that follow are adopted from Contestant's motion, as these specific facts have not been
co~tested by the Secretary.

887

A task training program in bridge crane operation involves all aspects of using the bridge
crane, including when and how to use the bridge crane, proper rigging of loads, planning the lift,
operating the controls for directional positioning (north, south, east and west), load limitations,
use of connecting devices, and lifting slings or chains. Pursuant to Bridger's MSHA-approved
Part 48 Training Program, bridge crane task training is normally provided only to miners whose
duties require use of the bridge crane, including all Heavy Equipment Mechanics, Welders,
Electricians, Machinis~s, and HVAC Mechanics (there is no position of "bridge crane operator").
Other employees, whose duties may take them into one of the shops or the draglines on
occasion, regardless of their classification or training, are called upon, from time to time, to press
the button which raises or lowers the bridge crane (a practice known as "bumping"), under the
direction and immediate supervision of a task-trained, experienced mechanic or other person
experienced in bridge crane operation. Bridger has never considered it necessary to give task
training to miners in bridge crane operation if they were only going to be bumping the crane.
On September 19, 2000, two of Bridger's experienced heavy equipment mechanics,
Kevin Fletcher and Don Bakula, were assigned the job of changing the tracks on a bulldozer in
the shop, removing the old track and installing a new one. To assist them, the mechanics asked
McCoy to run the dozer, as part of the track changing process that Fletcher, Bakula, and McCoy
had done together on previous occasions. Fletcher and Bakula asked McCoy, who was running
the dozer, to raise it off the ground by using its blade and ripper (by lowering them against the
floor, the body of the dozer was elevated). During the track-changing process on September 19,
a chain linking the old and new tracks broke. In order to replace the broken chain, Fletcher used
the overhead crane. Fletcher moved the overhead 15 ton crane into position at the right side of
the bulldozer to lift the bogies off the track. He attached a chain sling and·hook arrangement to
two center bogies and hooked it to the overhead crane. The sling arrangement consisted of four
chains and four hooks, and when used together, was rated at a 33,800 pound capacity. Fletcher
instructed McCoy to raise the bogies to a near-horizontal position with the overhead crane.

In order the raise the bogies to this position, McCoy (who had left the dozer and was
standing on the shop floor nearby) pressed the crane's control button momentarily (just as he had
done on prior occasions), then stopped. McCoy then climbed back aboard the dozer to continue
running it as needed by Fletcher and Bakula. Subsequently, one of the chains hooked to the
bogie slipped off, fatally injuring Fletcher, and resulting in a pinched arm injury to Bakula.
On March 19, 2001, MSHA issued a 104(g)(l) Order alleging a violation of 30 C.F.R.
Section 48.27(a). _On April 23, 2001, MSHA modified the Order to instead allege a violation of
Section 48.27(c), and to change it to non-S&S. The modification also states that "Mr. McCoy's
operation of the crane was limited to 'bumping, to remove the slack in the rigging cables. The
task took less than one minute and upon completion, he returned to his position on the dozer.
There was no unsafe operations or acts committed by McCoy during his operation of the crane."

888

On June 25, 2001 , Contestant Bridger filed a motion for summary decision, and the
Secretary' s response in opposition to this motion was filed on July 10, 2001. On July 19, 2001,
Contestant filed a reply.

Discussion
At issue in this contest proceeding is the validity of Order No. 7636506 alleging, as
modified, a violation of 30 C.F .R. Section 48.27(c) which provides that "[m ]iners assigned a new
task not covered in paragraph (a), 2 of this section shall be instructed in the safety and health
aspects and safe work procedures of the task, prior to performing such tasks."

In its motion, Bridger sets forth three independent grounds for its motion as follows:
(1) that bumping is not a separate task for which training is required; (2) that a miner does not
have to be task trained before performing a task under the direct direction and supervision of an
experienced person; and (3) that McCoy was not required to have task training as he had
performed this task within the preceding twelve months.
In order for Bridger to prevail under 29 C.F.R. Section 2700.67(b) it must establish
(1) that there is no genuine issue as to any material fact; and (2) that it is entitled to summary
decision as a matter oflaw. Based on a review of the entire record in this proceeding, I find that
Bridger has met this burden for the reasons that follow.
The record establishes that McCoy had not received any training in the safe work
procedures of bumping prior to his having operated the overhead crane's control button on
September 19. However, in order to prevail in establishing a violation under Section 48.27(c)
supra, the Secretary must establish that McCoy was "assigned a new task". Neither counsel has
cited any controlling case law on the issue of whether bumping constitutes a task. In resolving
this issue, reference is made to 30 C.F.R. Section 48.22 which sets forth the definitions of
various terms used in subpart B, which includes Section 48.27(c) supra, and which relate to the
training of miners. In this connection, Section 48.22(£) supra, provides that the term msk "means
a work assignment that includes duties of the job that occur on a regular basis and which requires
physical abilities and job knowledge." In essence, Bridger argues that the activity performed by
McCoy, on September 19, did not constitute a new task. Bridger alleges that (1) McCoy was a
mine service operator before he engaged in that activity and he remained a mine service operator
after that without any reassignment to new tasks, and (2) that he occasionally bumped the bridge
crane when requested to do so. The Secretary, in her opposition, does not raise any factual issue
with regard to these facts asserted by Bridger. The Secretary' s opposition is based solely upon
assertions characteri_zing the nature of bumping as having significant safety implications, and that
it is a "task" as it requires physical abilities and job knowledge.

2

The tasks covered in paragraph (a) of Section 48.27 refer to mobile equipment operators,
drilling machine operators, haulage and conveyor systems operators, and ground control machine
Opf?rators.

889

In order to prevail the Secretary must establish that McCoy, in bumping, was "assigned a
new task'', (Section 48.27(c), supra). According to the clear unequivocal language of Section
48.22{f) a work assignment is considered a task only if the assignment to perform that task
includes duties that not only require physical abilities and job knowledge and that "occur on a
regular basis" (Emphasis added). Bridger asserts, in essence, that there is a lack of evidence for
the Secretary regarding the existence of this material fact, which is necessary for the Secretary to
establish in order to prevail herein. It is Bridger's specific factual assertion that the assignment
to bump by pressing a button was assigned to McCoy "occasionally", and thus not on a "regular
basis". The Secretary has not asserted either in its brief or in affidavits filed along with its brief,
that McCoy performed bumping on "a regular basis".

I find, based on the record before me, that there is no issue as to a material fact, i.e., that
McCoy's 3 assignment to bump did not occur on a regular basis. Hence, based on the clear
language of Section 48.22( f), I find that the assignment of McCoy to bump on September 19 did
not constitute a task. Accordingly, since Bridger's training obligation under Section 48.27(c) is
required only when miners are assigned a new task, and McCoy's assignment did not fall within
this category as it did not meet the definition in Section 48.22(f) supra, Bridger was not required
to provide him with training under Section 48.27(c). Thus, considering the record before me,
Bridger is entitled to a decision finding that it did not violate Section 48.27(c) supra.
Accordingly Bridger's motion to dismiss is granted.~
ORDER

It is Ordered that Bridger's motion to dismiss is granted, and it is further Ordered that
Order No. 7636506 be vacated, and this case be dismissed.

!rJ

~

~Weisberger
·

3

Administrative Law Judge

The Secretary does not assert that other miners were assigned this task on a "regular basis".

~In light of this decision, which disposes of Bridger's motion, it is not necessary to discuss the
alternate grounds raised by Bridger.

890

Distribution: (Certified Mail)
Lydia Tzagoloff, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, P .O. Box 46550, Denver, CO 80201-6550
Timothy M. Biddle, Thomas C. Means, Crowell & Moring LLP, 1001 Pennsylvania Avenue,
N.W., Washington, D.C. 20004-2595
/set

891

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

August 31, 2001
SECRETARY OF L~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION, on behalf of
DEWAYNE YORK,
Complainant
v.

DISCRIMINATION PROCEEDING

Docket No. KENT 2001-22-D
BARB-CD-2000-06
BR&D#3 Mine
Mine ID 15-18028

BR&D ENTERPRISES, INC,
Respondent

DECISION
Appearances: Joseph B. Luckett, Esq., Associate Regional Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Complainant:
J. P. Cline, III, Esq., Middlesboro, Kentucky, for Respondent.
Before:

Judge Zielinski

This matter is before me on a complaint of discrimination filed by the Secretary on behalf
of Dewayne York pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of
1977 (the "Act"). 30 U.S.C. § 815(c)(2). The complaint seeks an order declaring that
Respondent, BR&D Enterprises, Inc. (BR&D), discriminated against York and other relief
including back pay and bep.efits, as well as a civil penalty in the proposed amount of $7,000.00.
A hearing was held in Pineville, Kentucky on April 17, 2001 and the parties submitted briefs
following receipt of the transcript. The Secretary had previously filed an Application for
Temporary Reinstatement on behalf of York. A hearing was held on the application and on
August 29, 2000, an order was issued directing that York be temporarily reinstated pending
completion of the investigation of his allegations and final decision on any formal complaint that
might be filed. 1 The parties have stipulated that the record of proceedings from the temporary
reinstatement hearing be included in the record of this case. For the reasons set forth below, I
find that Respondent did not discriminate against York in violation of the Act.

The Order was subsequently amended, at the request of the parties, to provide for
York's economic reinstatement. The Temporary Reinstatement Proceeding was conducted under
Commission Docket No. KENT 2000-255-D.
892

Findings of Fact
Dewayne York had been employed by BR&D for approximately seven of his ten years as
a miner. He worked at the #3 mine for 12-14 months prior to being terminated on May 25, 2000,
and held the position of roof bolter operator on the #1 shift at the time of his discharge. By all
accounts, York was a good worker and there were no complaints about his work performance.
The work crew in a section of the mine consisted of twelve men, four of whom operated
two roof bolting machines, or "pinners", referred to as the "intake" and "return" pinners. The
power cables of the "intake" pinner ran along the right, or intake, side of the mine entries, and
those of the "return" pinner ran along the left or "return" side. York and Charlie Price operated
the "intake" pinner. John Simpson and George Black operated the ''return" pinner. After the
continuous mining machine had driven an entry past where a crosscut would be made and the
area had been bolted, the miner would then make a 32 foot deep cut at the face, back away from
the face into the previously mined area and make another cut by turning right and starting the
crosscut. Even though roof bolts had been installed in that area of the entry, the newly created
intersection was considered unsupported and BR&D's approved roof control plan specified that
no miners were allowed to enter it until temporary supports, or two rows of bolts, had been
installed in the newly created crosscut.2 Under the plan, the intake pinner would proceed up the
entry and install the required two rows of bolts. It would then be backed out of the entry and
allow the return pinner to proceed up the entry past the crosscut to bolt the new cut at the face.
The intake pinner would then return to finish bolting the crosscut. It would take approximately
15 minutes for the intake pinner operators to install the two rows of bolts and back the machine
out of the entry to allow the return pinner access to the face.
At least since the beginning of York's most recent employment at the #3 mine, BR&D
followed a mining procedure that violated its approved roof control plan. Rather than wait for
the intake pinner to install two rows of bolts in the crosscut, the return pinner and its crew would
travel through the unsupP.orted intersection to bolt the new cut at the face. York himself also
entered the unsupported intersection to help hang the power cable for the return pinner. The
intake pinner would then be brought into the entry to bolt the new crosscut. With the possible
exception of York, the roof bolter operators preferred this "illegal" procedure. It allowed both
roofbolters to finish sooner because the return pinner could immediately begin to bolt the entry
and the intake pinner would not have to stop bolting to back out of the entry and allow the return
pinner access to the heading. This resulted in more break.time for pinner operators, particularly
the return pinners, who did not feel that the "illegal" procedure was hazardous, because they did
not believe that the stability of the roof in the intersection would be significantly enhanced by the
addition.of two rows of roof bolts in the crosscut and the additional time required to install the
bolts could result in -sagging and deterioration of the roof in the newly cut heading.

2

The roof control plan provided that: "Openings that create an intersection will be
supported by permanent supports or be supported with two rows of temporary supports on 5-foot
centers across the opening before any work or travel in the intersection."
893

This deviation from the roof control plan was not the result of instruction or directives by
management. In fact, the miners were aware that they were not permitted to enter the
unsupported intersection and had signed acknowledgments to that effect at annual training
sessions. Despite this knowledge and training, however, the "illegal" method was the practice
preferred by the roof bolter operators and was accepted by Jackie Jaggers, the foreman. Jaggers
had a fairly contentious relationship with the miners, particularly York. There was a good deal of
give and take and the miners generally felt free to raise issues with Jaggers and inform him of
conditions that affected their safety and the mining operation.
The miners typically encountered draw rock. Draw rock, or "draw slate" is "soft slate,
shale, or rock approx. 2 in. (5.08 cm) to 2 ft. (0.61 m) in thickness, above the coal, and which
falls with the coal or soon after the coal is removed."3 During a period of several weeks in late
March and early April, 2000, however, the draw rock was unusually thick and unstable. ·
Virtually all of the roof bolters called this problem to the attention of Jaggers, who instructed the
continuous miner operator to try and cut down some of the draw rock. 4 While the miner operator
was able to cut some of it down, he could not get it all and would let the bolter operators know if
conditions were particularly bad. The presence and location of draw rock at the mine was highly
variable, and it was not always possible, or advisable, to cut it down. Sometimes, the preferred
procedure was to allow some draw rock to remain, rather than cut down significant good roof to
try and remove it. In such cases, the roofbolters were to pry the loose rock down with a bar, or
make sure that it was securely bolted.5
Around April l, 2000, York, who had experienced roof falls attributable to draw rock,
decided that he would not continue with the "illegal1' bolting procedure. He told Jaggers that he
would not do so, which dictated that the procedure called for by the roof control plan be
followed. The other pinner operators did not feel strongly about the draw rock conditions but did
not object to the change in procedure, feeling that York was within his rights to take the position
that he did. Jaggers did not verbally respond to York. He just shrugged and walked away. The
roof bolters then proceeded to bolt in conformance with the roof control plan.

3

American Geological Institute, A Dictionary oflvfining, Mineral and Related
Terms 168 (2d ed. 1996).
4

In addition to his complaints about draw rock, which were also voiced by other
bolter operators, York had complained on occasion to Jaggers about excessive dust attributable to
a failure to install line curtain and excessively wide and deep cuts made by the continuous miner.
He did no.t attempt to bring any of his safety concerns to MSHA officials and did not speak to
any other management officials about them.
The roof control plan also provided that when adverse roof conditions were
encountered, extended cuts of 32 feet were to be reduced to the standard 20 feet. While there
may have been some reduction in the depth of cuts, generally, mining proceeded with the
extended 32 foot cuts.
894

Jaggers, who was somewhat temperamental, sulked for a while after York insisted on
bolting in conformance with the plan. However, he did not treat York any differently than any of
the other miners. The effect of the change was minimal. By operating the two roof bolting
machines, rather than just one, BR&D had ample roof bolting capacity. Consequently, the 15 or
so minutes that the return pinner had to wait while the crosscut intersections were bolted did not
interfere with production. The return pinner operators were not particularly happy about the
procedure, because the.y were unable to take breaks later in the day.
On May 25, 2000, there was an unusually heavy rainstorm that caused flooding and
power outages at the #3 mine and the adjacent #4 mine. York and the other miners arrived about
6:00 a.m., and waited at·the mine site. York rode to work in Black's vehicle, along with Wendell
Fuson, the continuous miner operator. Stanley Ditty, BR&D's president and owner, was intent
on producing coal that day as soon as power was restored because customers were in need of coal
at that time. He had informed his superintendent, Randy Phelps, that the miners should remain at
the site and they were so instructed. The men were periodically advised that the power would
likely be restored in a few minutes, predictions that proved unfounded. By 8:30 or 9:00 a.m., the
power had not been restored, and the miners tired of waiting. It was York's and the other miners'
understanding from prior experience that they would not be paid until they actually started
working. Despite the instructions to stay, some of the mirters decided to leave the mine site.
Black, York and Fuson left in Black's vehicle. York left because he believed he would not be
paid for waiting and because Black and Fuson were leaving. They went to Fuson's home and
remained in the driveway, where they could observe the road to the mine and see whether other
miners also left. In all, some thirteen miners, including York, left the site.
Ditty arrived at the mine site about 9:30 a.m., after the power had been restored. When
he was told that some of the men had left the mine, he determined that he would discipline the
absent miners by suspending them for three days, until the following Tuesday. Ditty did not
consult with Phelps or Jaggers about his decision to discipline the men, but did inform Phelps
what he had decided and began to call the homes of the miners who had left. He spoke to York's
wife, Dejuana,6 and inquired about York's whereabouts. Mrs. York thought her husband was at
work. Ditty informed her that he, and other miners, had left the mine. She asked what was going
on and Ditty informed her of the flooding and power outage and stated that her husband was
being suspended. She remarked that York, who had been aggravated about the draw rock
condition, was not happy working at that mine and Ditty responded that York could find another
job. Ditty intended only to note the obvious, i.e., that York was free to find a different job if he
was unhappy working at BR&D. His comment apparently was misinterpreted by Mrs. York.
Mrs. York c~lled Black's wife, Lori, and Fuson's wife, Jennifer, to see if they knew
where the men were. Jennifer Fuson called her neighbor to see if the men were outside of
Fuson 's home, and the neighbor called Fuson to the phone. She informed him that the miners

6

Mrs. York was at work that morning and received a call from her son, who
advised that Ditty was looking for York. She then called the mine site and spoke to Ditty.
895

who had left were being suspended and that York was being fired. Fuson told Black and York
what his wife had said and then used his phone to call the mine and talked to Ditty, who
informed him that he was being suspended for three days. York called his wife, who repeated
what she had told Mrs. Fuson, and told him he needed to talk to Ditty.
York called Ditty, who asked why he had left the mine. York explained that he didn't
think he was being paid. Ditty questioned how York could believe that, asked him to cite an
example to support his .belief. York replied that he couldn't cite a specific example, but there
were times when he hadn't been paid. Ditty disagreed and told York that he was suspended.
York protested that other miners had left the site and Ditty stated that they were also being
suspended. York protested the suspensions as unfair and then cursed Ditty. Ditty told him to
find another job and York responded that he would see him in court. Ditty spoke to Phelps
around noon that day and told him that he had fired York for insubordination, that York had
cursed him. York later called the mine and spoke to Phelps and asked him why he had been
fired. Phelps responded that he needed to talk to Ditty.
York filed a complaint of discrimination with MSHA on May 26, 2000, alleging that he
had been discharged for making safety complaints. The Secretary filed an Application for
Temporary Reinstatement on his behalf, which was granted following a hearing. The Secretary
subsequently filed this discrimination action.

Conclusions ofLaw - Further Factual Findings
A complainant alleging discrimination under the Act typically establishes a prima facie
case by presenting evidence sufficient to support a conclusion that he engaged in protected
activity and suffered adverse action motivated in any part by that activity. See Driessen v.
Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec '.Y ofLabor on behalfofPasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F .2d 1211 (3d Cir. 1981 ); Sec '.Y ofLabor on behalfof
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may
rebut the prima facie case by showing either that no protected activity occurred or that the
adverse action was in no way motivated by protected activity. See Robinette,
3 FMSHRC at 818 n. 20. If the operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it was also motivated by the miner's
unprotected activity and would have taken the adverse action for the unprotected activity alone.
Id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC,
813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test).
York has clearly established two of the three elements of his prima facie case, i.e., that he
engaged in protected activity and suffered adverse action, i.e., he was discharged. His
expressions of concern about adverse roof conditions, as well as concerns about dust and deep
cuts, all quabfy as protected activity. More significantly, his refusal to continue to bolt in a
manner violative of the roof control plan, clearly was protected activity under the Act.

896

Respondent argues that York failed to establish that he engaged in protected activity
because he failed to prove that his concerns about safety issues were not properly addressed by
Jaggers. The manner in which York's concerns were addressed may be relevant to other issues,
but it has no bearing on whether he engaged in protected activity. A complaint made to an
operator or its agent of"an alleged danger or safety or health violation" is specifically described
as protected activity in§ 105(c)(l) of the Act and it is clear that York engaged in protected
activity prior to his discharge.

Unlawful Motivation
The Commission has frequently acknowledged that it is very difficult to establish "a
motivational nexus between protected activity and the adverse action that is the subject of the
complaint." Secy on behalfof Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999).
Consequently, the Commission has held that "(1) knowledge of the protected activity; (2)
hostility or animus towards the protected activity; and (3) coincidence in time between the
protected activity and the adverse action" are all circumstantial indications of discriminatory
intent. Id.
Here there is no direct evidence of unlawful motivation for York's discharge. There is
also no direct evidence that Ditty was aware of York's protected activity. York confirmed that,
in general, communications followed the chain of command and that he voiced his concerns to
Jaggers, not to Phelps or to Ditty. York suspected that Ditty had been told of his protected
activity and was hostile toward it. His suspicion was based solely on the fact that Jaggers had
spoken to Ditty one day when he was at the mine and that Ditty did not come out and speak with
the men that day. However, there is nothing to suggest that it would have been unusual for
Jaggers to have conversed with Ditty when he visited the mine and Black testified that there were
many times when Ditty was at the mine that he didn't speak to the men. Jaggers, Phelps and
Ditty all testified that York's concerns were not passed up the chain of command. Because Ditty
came into contact with Jaggers on his visits to the mine, it would be permissible to infer that
Jaggers told Ditty of York's protected activity. I decline to make such an inference here and find
that during the events of May 25, 2000, Ditty was not aware that York had engaged in protected
activity and that his decision to discharge York was not motivated in any way by York' s
protected activity.
York presented a considerably more compelling case at the Temporary Reinstatement
Proceeding. He portrayed himself as somewhat of a spokesman for the other miners on a variety
of issues, including dust and deep cuts. Most significantly, however, he claimed that his
insistence on compl!ance with the roof control plan resulted in a 10-15% reduction in coal
production, which reflected adversely on Jaggers and Phelps and which Ditty was sure to have
known about. He claimed that the miners didn't like it because it interfered with their running
coal, that Jaggers showed hostility toward him by largely refusing to talk with him and that
Phelps, too, no longer initiated conversations with him. Had these facts been proven, they would
have easily justified an inference that Ditty was aware of York's protected activity and that it
897

may have been a motivating factor in his reaction to the events of May 25, 2000.
Unfortunately for claimant, the evidence materialized on the opposite side of those
claims. The miners who testified uniformly stated that York was not regarded as a spokesman
for them and that they all complained to Jaggers about issues that concerned them, including the
troublesome draw rock they were encountering in March and April, 2000. While York was the
only one who insisted on bolting in conformance with the roof control plan, that action was less
significant than origincilly claimed in light of the other miners' complaints and the nature of their
relationship with Jaggers. The other miners also testified that there was no noticeable change in
Jaggers' or Phelps' attitude toward York after he took his stand, and that York was not treated
any differently than other miners by Jaggers, Phelps or Ditty, either before or after April 1, 2000.
Most significantly, however, production reports introduced into evidence at the bearing in
this case established that there was no fall-off in production on or around April 1~ 2000, which
was substantiated by virtually every witness. York, forced to abandon his contention that
production was adversely affected, testified that roof bolting and other functions, such as
scooping, were slowed, but failed to explain, or to introduce evidence to establish, why such
developments would have adversely affected mining operations in a manner to be of concern to
Jaggers, or to an extent that Ditty would likely have been aware of them. The most significant
result of the change in bolting procedure appears to be that the return pinner operators essentially
lost some free time they had used for breaks,7 an issue unlikely to have been of particular import
to Jaggers or one that he would have felt compelled to bring to Phelps' or Ditty's attention.
The Secretary argues that unlawful motivation should be found because "[t)here is a
reasonable inference that Jaggers discussed the safety complaints by York and his refusal to bolt
illegally with Ditty," the discharge was "so close'' in time to the protected activity, there was
demonstrated hostility toward it and BR&D's justification was pretextual.8 The facts of the
cases relied upon by the Secretary, however, are substantially different than those proven here.
As noted above, the facts of this case do not justify an inference that Ditty was made aware of
York's protected activity. I found Ditty to be a credible witness, whose position at the
Temporary Reinstatement Proceeding hearing was largely substantiated by the evidence

7

One of the roof bolters, George Black, testified that they went back to bolting
illegally because he and John Simpson "got tired" of the loss of their break time. Others denied
that they had returned to the illegal roof bolting practice. York testified that they returned to the
illegal practice several weeks before his termination, at his request, because he was concerned
about loss of his job. I reject that testimony, which was not consistent with any other miner's. If
there was _a return to the illegal practice, which likely happened, at least on occasion, it was a
result of the bolters' desire to get their additional break time and not at the request or urging of
York.
8

Brief for the Secretary, at pp. 34-36, citing, NLRB v. Health Care Logistics, Inc.,
784 F.2d 232, 236 (6th Cir. 1986); Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 230 (D.C.
Cir. 1995) and Abbey's Transportation Services, Inc. v. NLRB, 837 F.2d 575, 579 (2d Cir. 1988).
898

introduced at the hearing of this case and I credit his testimony, which was consistent with other
witnesses', that as of May 25, 2000, he had not been advised of and had no knowledge or
information of any protected activity by York. 9
York's discharge was not particularly close in time to his protected activity. Nor is there
any evidence of animus toward his protected activity by Phelps or Ditty. Ditty, himself, was
properly concerned ab.o ut safety issues, including roof control. He operated two roof bolting
machines, when he likely could have operated one. More significantly, he directed that the
bolters install 5 bolts per row, though the roof control requires only 4. As he explained, the extra
bolts were installed to provide additional roof support and the cost of installing them came "out
of [his] pocket." Ditty also had no personal animosity toward York. He had loaned York money
in the past and had accommodated a limited work schedule when York had suffered an iaj ury and
gave him a couple of days off to attend to a child's illness. Jaggers did evidence some animosity
after the change in bolting procedures, sulking for a few days. However, that animosity was
directed toward all of the miners and was not significantly different than his normal demeanor.
As Simpson stated: "Jackie is just Jackie."
The Secretary's "pretext" argument is based upon her crediting of testimony to the effect
that York did not curse Ditty during the phone conversation. I reached a different conclusion.
The evidence as to both the substance and timing of the various phone conversations on May 25,
2000, was conflicting. I have credited Ditty's testimony regarding the conversations because I
find them reasonable and because of my overall assessment of his credibility. As to the critical
issue, York testified that he did not curse Ditty and Ditty testified that he did, using just one or
two common curse words. Black and Fuson, friends of York, both overheard York's end of the
conversation and testified that they did not hear him curse or raise his voice. However, Black
was on the porch some 25 feet away from York and admitted that it was "possible that [he]
missed something," though he did not believe that he had. Fuson also admitted that he was
momentarily distracted by a neighbor's yelling, but also did not believe that he missed anything.
Accepting the Secretary's argument that a pretextual justification can support an inference of
unlawful motivation, I find no pretext in Ditty's explanation of his decision to discharge York.
ORDER

9

Jaggers denied that he had ever advised Phelps or Ditty of any of York's protected
activity. Phelps testified that he had no knowledge of any complaints made by York and that he
had never discussed any complaints by York with Jagger or Ditty. Ditty testified that he had no
knowledge or infomiation that York had made safety complaints. As the Secretary points out,
Jaggers also testified that York never complained to him and that the roof control plan had
always been followed, which was contradicted by virtually every other witness with knowledge
of those facts. While Jaggers' credibility is certainly questionable, ·i t does not reflect adversely
on Phelps' and Ditty's credibility. Their testimony is consistent with that of other witnesses' on
si~i.ficant issues.

899

For .the reasons stated above, I find that Ditty's decision to discharge York was not
motivated in any part by York's protected activity. Accordingly, the complaint of discrimination
is hereby DISMISSED. 10

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215 (Certified Mail)
J.P. Cline ill, Esq., P.O. Drawer 2220, Middlesboro, KY 40965 (Certified Mail)
/mh

10

The Decision and Order of Temporary Reinstatement, as amended, remains in
effect until there is a final Commission decision on the complaint. Sec '.Yon behalf of Bernardyn
v. Reading Anthracite Co., 21 FMSHRC 947 (Sept. 1999).
900

ADMINISTRATIVE LAW JUDGE ORDERS

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

August 6, 2001
DISCR.Th1INATION PROCEEDING

DANIEL C. HOWELL,
Complainant

Docket No. WEV A 2000-80-DM
NEMD00-03

v.
CAPITOL CEMENT CORPORATION,
Respondent

Martinsburg Plant
Mine ID 00-03

ORDER
Capital Cement filed a Motion to Dismiss the above-captioned discrimination complaint
on August 1, 2001, on the grounds that "Complainant failed to file a charge of discrimination ...
almost four months after the time_period for filing such a charge had expired."
Section 105(c) sets forth the time limitation applicable to filing a complaint under the
Mine Act by requiring that "Any miner ... who believes that he has been discharged, interfered
with, or otherwise discriminated against in violation of this subsection may within 60 days after
such violation occurs, file a complaint with the Secretary alleging such discrimination."
The Commission has held that the 60-day time limitation in section 105(c) is not
jurisdictional and that j ustifiable circumstances may excuse non-compliance. Hollis v.
Consolidation Coal Co., 6 FMSHRC 21 (1984); Herman v. IMCO Services, 4 FMSHRC 2135
(1982). In Herman , the Commission found a "prolonged hesitation" of nine months to constitute
"extraordinary delay" in filing, and explained the primary objective of imposing time limitations
for instituting legal proceedings as assuring fairness to the opposing party by:
... preventing surprises through the revival of claims that have been
allowed to slumber until evidence has been lost, memories have faded, and
witnesses have disappeared. The theory is that even if one has a just claim it is
unjust not to _put the adversary on notice to defend within the period of limitation
and that the right to be free of stale claims in time comes to prevail over the right
to prosecute them.

Id. at 2138-39, quoting Bennett v. NY. Central R.R. Co., 380 U.S. 424, 428 (1995), quoting R.R.
Telegraphers v. REA, 321 U.S. 342, 348-49 (1944).
901

There are several cases that examine whether untimely filing is excusable,. by considering
factors such as: Complainant's capacity or ability to initiate and pursue such a remedy, see
William T. Sinnott. Ilv. Jim Walters Resources, Inc.. 6 FMSHRC 2445 (1994) (ALJ);
Complainant's awareness of his rights under the Act, id.; Hollis. supra; Secretary ofLabor on
behalf ofFranco v. i~:A. Morris Sand and Gravel. Inc., 18 FMSHRC 278 ( 1996) (ALJ) (delay of
107 days justified by prompt filing after Complainant first became aware of his rights under the
Act, filing of substantially identical allegations in workman's compensation and employment
discrimination claims, and absence of prejudice to Respondent); Secretary ofLabor on behalfof
Smith v. Jim Walters Resources. Inc.. 21FMSHRC359 (1999) (ALJ) (ten month delay excused
by filing within 61 days of first learning of section 105(c) and no claim of prejudice by
Respondent); Secretary of Labor on behalf of Gay v. Ikard-Bandy Co .. 18 FMSHRC 341 (1996)
(ALJ) (three month delay excused by filing one day after first learning of section 105(c) rights
and no claim of prejudice); and the length of delay and whether it has resulted in prejudice to a
Respondent, see Sinnitt, supra (delay of over three years "inherently prejudicial"). Consequently,
the lengthier the delay, the more substantial the justification required to overcome it. See Roland
A. Avifucea v. Phelps Dodge Corp.. 19 FMSHRC 1064, 1067 (1997) (ALJ) ("very special
circumstances" required to justify delay of over two years). Concrete demonstrable prejudice
may also occur, e.g., unavailability of witnesses or documents. Factors such as these, pertinent to
the particular circumstances of each case, must be weighed in order to determine whether delay
has beenjustified. Hollis, supra; Herman, supra.

In the instant matter, Howell was discharged on October 19, 1999 and filed his
discrimination complaint on April 17, 2000, almost four months past the December 20, 1999
deadline for filing. Howell seeks to have delayed filing excused by stating that he lacked
knowledge of the procedure by which discrimination complaints are filed, sought information
from Capitol Cement and the Department of Labor to no avail, and was not directed to MSHA
until he contacted the National Labor Relations Board in March 2000. Crediting Howell's
statement that he became aware of his right to file with MSHA in March, filing his complaint on
April 17 does not constitute inordinate delay. Moreover, Capitol Cement's claim of prejudice
does not appear to amount to any more time and expense than that which would have beer{
required in defending against this action had it been timely filed.
Accordingly, Daniel C. Howell's delay in filing his complaint of discrimination with
MSHA was justified and is, therefore, excused, and Capitol Cement's Motion to Dismiss is
hereby DENIED.

~~·/Ut!~tdPdl

Ja ueline Bulluck
Administrative Law Judge
(703) 756-6210

902

Distribution: (Certified Mail)
Daniel C. Howell, Capitol Cement Corporation, P.O. Box 885, Martinsburg, WV 25401
Jeffrey S. Shapiro, Esq., McGuire Woods LLP, One James Center, 901 East Cary Street,
Richmond VA 23219-4030
nt

903

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, 0. C. 20006·3867
Teleph one No.: 202-653-5454
Telecopier No.: 202-653-5030

August 10, 2001

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2000-203
A. C. No. 36-06990-03526

v.
HARRIMAN COAL CORPORATION,
Respondent.

Mine: Lincoln Stripping

O RDER REQUIRING SUPPORTING DOCUMENTATION

Before:

Judge Barbour

This case concerns a proposal for assessment of civil penalties filed pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 815(d)), seeking the
assessment of three alleged violations of mandatory safety hazards found in Part 77, Title 30,
Code of Federal Regulations.
On August 6, 2001, the Commission received the Secretary's Motion for Decision and
Order Approving Settlement. In her motion, the Secretary states that the parties propose to
reduce the $150,000.00 total assessment to $40,000.00 based upon confidential financial
documentation showing Respondent's inability to pay its debts as they come due and
Respondent's serious financial difficulty. The parties further contend that Respondent is no
longer mining and has no source of income. The parties have not submitted the documentation
necessary to support these assertions.
When deciding whether to grant or deny a settlement motion, the administrative law
judge must take into consideration not only the situation of the parties at hand but also the public
interest. As former Chief Administrative Law Judge Paul Merlin stated:
Under the MiQe Safety Act unlike most statutes, the administrative law judge
has the affirmative duty to approve a settlement, even if the parties themselves
have agreed upon its terms. Under this law the judge does not have to approve
a settlement, if he determines it is not in the public's interest. In other words,
the judge is here to guarantee the public interest ... Explo-Tech Inc., 16 FMSHRC 931,
933 (April 1994) (emphasis added).
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The public interest requires the judge to verify a setHement's merits. However, the
judge cannot do so when the parties do not document their assertions. In a previous case, I
denied a motion to approve a settlement where the parties failed to provide adequate support for
their contention that the proposed penalty would adversely affect the company' s ability to
continue in business. Bailey 's Limestone Quarry, 19 FMS.HRC 1855, 1856 (November 1997).
As in that case, I must ;ilso deny the subject motion unless the parties supplement it with
adequate supporting documents.

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

;)vJ;d f ~vi

v - - - - _.

David F. Barbour
Chief Administrative Law Judge

Distribution: (Certified Mail)
Paul J. Bruder, Jr. , Esquire, Rhoads & Sinon LLP, Harriman Coal Corporation, One South
Market Square, 12 1h Floor, P. 0. Box 1146, Harrisburg, PA 17108-1146
W . Christian Schumann, Esquire, Office of the Solicitor, U.S. Department of Labor, 4015
Wilson Blvd., Suite 400, Arlington, VA 22203
Maureen A. Russo, Esquire, Office of the Solicitor, U.S. Department of Labor, The Curtis
Center, Suite 630 East, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
/wd

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*U.S. GOVERNMENT PRINTING OFFICE: 2001 472-304/52452

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