NOVEMBER 2000

COMMISSION DECISIONS AND ORDERS
11-02-2000 Disciplinary Proceeding
11-03-2000 Justis Supply & Machine Shop
11-17-2000 Idaho Minerals

D 2000-2
CENT99-272
WEST 2000-632-M

Pg. 1289
Pg. 1292
Pg. 1301

WEST 99-364-M
SE 2000-228-RM
LAKE 2000-64-M
PENN 2000-23-D

Pg. 1305
Pg. 1317
Pg. 1321
Pg. 1322

SE 2000-39-D
WEST 2000-245-M
LAKE 2000-102-R

Pg. 1327
Pg. 1337
Pg. 1345

WEYA 99-40-R
YORK 2000-46-M

Pg. 1349
Pg. 1355

ADMINISTRATIVE LAW JUDGE DECISIONS
11-02-2000 TXI Port Costa Plant
11-03-2000 White Construction Co., Inc.
11-07-2000 Shelly Materials Inc.
11-17-2000 Brian T. Christie v. Mountain Spring Coal Co.
11-22-2000 Sec. Labor on behalf of Terry McGill v.
U.S. Steel Mining Co., LLC.
11-24-2000 Northern Stone Supply, Inc.
11-29-2000 Freeman United Coal Company
ADMINISTRATIVE LAW JUDGE ORDERS
11-09-2000 Performance Coal Company
11-14-2000 Metro Recycling and Crushing Inc.

i

NOVEMBER 2000

There were no cases in which review was granted during the month of November

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

Donald Ribble v. T & M Development Company, Docket No. LAKE 2000-25-M,
October 11, 2000 (Judge Melick)

ii

COMMISSION DECISIONS AND ORDERS

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

November 2, 2000

Docket No. D 2000-2

DISCIPLINARY PROCEEDING

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
ORDER
BY THE COMMISSION:
On May 17, 2000, Chief Administrative Law Judge David Barbour sent to the
Commission a disciplinary referral pursuant to Rule 80 of the Commission's Procedural Rules,
29 C.F.R. § 2700.80. 1 This matter was raised by Lue A. Wilson. 2 We have reviewed the

1

Commission Procedural Rule 80 provides in pertinent part:

(b) Grounds. Disciplinary proceedings may be instituted against anyone who is
practicing or has practiced before the Commission on grounds that such person
has engaged in unethical or unprofessional conduct; h3S failed to comply with
these rules or an order of the Commission or its Judges; has been disbarred or
suspended by a court or administrative agency; or has been disciplined by a Judge
under paragraph (e) of this section.
(c) Disciplinary proceedings shall be subject to the following procedure:

(2) Inquiry by the Commission. The Commission shall conduct an inquiry
concerning a disciplinary referral and shall determine whether disciplinary
proceedings are warranted. The Commission may require persons to submit
affidavits setting forth their knowledge of relevant circumstances. If the
Commission determines that disciplinary proceedings are not warranted, it shall
issue an order terminating the referral.
29 C.F.R. § 2700.80.

In December 1999, Lue Wilson filed a dis~rimination complaint under section
105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3), against his former employer, Sidco Mining,
2

1289

submissions and considered the allegations of misconduct pr~sented by Mr. Wilson, and
conclude that even if the facts he alleged were true, they would not warrant disciplinary
proceedings under Commission Procedural Rule 80. Accordingly, this inquiry is terminated.

James C. Riley, Commissioner

Robert H. Beatty, Jr., Commiss· ner

Inc. ("Sidco"), which is currently pending before the Commission, awaiting hearing before an
administrative law judge. Wilson v. Sidco Mining, Inc. , Docket No. CENT 2000-87-DM.
1290

Distribution
Bryce J. Denny, Esq.
Cook, Yancey, King & Galloway
333 Texas Street, Suite 1700, P.O. Box 22260
Shreveport, LA 71120
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N. W., Suite 600
Washington, D.C. 20006

1291

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

November 3, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 99-272

V.

JUSTIS SUPPLY & MACHINE SHOP

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

DECISION
BY THE COMMISSION:
This is a 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"), in which Justis Supply & Machine
Shop ("Justis") challenges three citations issued by the Department of Labor's Mine Safety and
Health Administration ("MSHA"). At issue is whether Administrative Law Judge Richard
Manning correctly determined that the site at which Justis was working on a dragline was a
"mine" within the meaning of section 3(h)(l) of the Act, 30 U.S.C. § 802(h)(l). 1 22 FMSHRC
1

Section 3(h)(l) provides:
"[C]oal or other mine" means (A) an area ofland from which
minerals are extracted in nonliquid form or, if in liquid form, are
extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings, structures,
facilities, equipment, machines, tools, or other property including
impoundments, retention dams, and tailings ponds, on the surface
or underground, used in, or to be used in, or resulting from, the
work of extracting such minerals from their natural deposits in
nonliquid form, or if in liquid form, with workers underground, or
used in, or to be used in, the milling of such minerals, or the work
of preparing coal or other minerals, and includes custom coal
preparation facilities.
1292

544 (Apr. 2000) (ALJ). For the reasons that follow, we affirm the judge's determination and
therefore uphold the citations and penalties.
I.
Factual and Procedural Background
BHP Minerals, Inc. ("BHP") operates the Navajo Mine, a surface coal mine in San Juan
County, New Mexico. 22 FMSHRC at 544. BHP uses draglines2 at the mine to remove topsoil
and other material to expose the coal seam. Id. According to MSHA Inspector Peter Saint, BHP
had a total of three draglines at the Navajo Mine, including the dragline involved in this
proceeding, at the time of the trial. Tr. at 16.
On January 5, 1999, MSHA Inspector Saint was conducting a regular inspection at the
Navajo Mine. 22 FMSHRC at 544. As part of that inspection, he went to an area where a
dragline was being assembled. Id. The site was about one mile from where coal was being
mined. Id. An earthen berm surrounded the dragline site. Id. The site was accessible either by a
public road or a private road that ran directly from the mine. Id.
The dragline was being assembled by a contractor, CDK. Id. CDK, in tum, contracted
with Justis to perform cutting and welding services. Id. at 544-45. Employees of Justis, which
operated out of Farmington, New Mexico, brought a welding truck to the site. Id. at 545. The
first time Justis personnel arrived at the site, they came over the road from the mine. Id. BHP
security personnel examined Justis' trucks and gave Justis employees a training handbook. Id. at
546. Thereafter, Justis employees entered and exited the dragline assembly site over the public
road. Id. at 545. Neither CDK nor Justis performed any work at the site other than on the
dragline. Id. at 546.
MSHA Inspector Saint came to the site over the mine road. Id. at 545. While at the site,
he inspected several pieces of equipment that belonged to Justis, including a welding.truck. See
id. Justis' truck was not equipped with a backup alarm. Id. at 549. It had a gas powered welder
mounted behind the cab. Id. Oxygen and acetylene tanks were mounted on the bed of the truck,
and tool boxes were attached to the sides of the bed. Id. This equipment obstructed the rear
view from the cab of the truck. Id. The rear of the truck was used as a workbench and was
equipped with a vise and rack. Id. The truck was parked front end first about 40 feet from the
dragline, and CDK and Justis employees were working in the area. Id. The inspector issued a

2

A dragline is "[a] type of excavating equipment which casts a rope-hung bucket a
considerable distance, collects the dug material by pulling the bucket toward itself on the ground
with a second rope, elevates the bucket and dumps the material on a spoil bank, in a hopper, or
on a pile." American Geological Inst., Dictionary ofMining, Mineral, and Related Terms, 167
(2d ed. 1997).
1293

citation charging a violation of30 C.F.R. § 77.410(a)(l)3 for failing to provide the truck with a
back-up alarm when it had an obstructed rear view. 4 Id. at 54.8. The inspector issued two
additional citations. 5 Id. at 550-5 1.
The Secretary issued a proposed assessment of civil penalties that Justis contested, and a
hearing was held. Relying on section 3(h)(l) of the Mine Act, 30 U.S.C. § 802(h)(l), and its
legislative history, the judge concluded that the dragline site where Justis employees worked fell
within the Act's definition of a "coal or other mine." 22 FMSHRC at 546. He noted that the
only acti vity at the site was the assembly of the dragline to be used for mining at the Navajo
Mine. Id. T he judge distinguished the factual setting in this case from one involving a
commercial welding operation, which was open to the public, on a site adjacent to a mine. Id. at
547. He concluded that, except for the fact that an independent contractor was involved, the case
was similar to Jim Walter Resources, Inc., 22 FMSHRC 2 1 (Jan. 2000), where the Commission
held that a supply shop, not located at a mine site, was a " mine" because the Mine Act's
definition includes "facilities and equipment" used in or to be used in mining. Id. The j udge
reasoned that, if BHP employees were assembling the dragline at the site, they would clearly be
subj ect to Mine Act jurisdiction. He held that the fact that those activities were being performed
by independent contractors should not change the result. Id. Based on his determination that the
dragline site was a mine, the judge concluded that Justis was an "operator" under section 3(d) of
the Mine Act, 30 U.S.C. § 802(d), because it was an " independent contractor performing services
or construction at [a] mine." Id. at 548.
The judge affirmed the violations charged in the three citations. Id. at 548-52. With
regard to the citation charging Justis with a failure to provide a back-up alarm on its welding
truck, the judge rejected Justis' contention that the truck was a "service vehicle" within the
meaning of MSHA's Program Policy Manual ("PPM"), concluding that the PPM did not exclude
from the requirements of section 77.4IO(a)( 1) the truck of an independent contractor, when the
truck was a~ integral part of the welding service that Justis provided. id. at 549.

3

Section 77.410(a)( l) provides in pertinent part: "Mobile equipment, such as ... trucks,
except pickup trucks with an unobstructed rear view, shall be equipped with a warning device
that gives an audible alarm when the equipment is put in reverse ...."
4

The inspector designated the violation as significant and substantial. Id. at 548. The
judge upheld that designation (id. at 550), and Justis has not challenged that determination on
review.
5

The inspector issued a second citation when he located a hand-held grinder that had a
trigger lock that allowed it to run when there was no pressure on the trigger. Id. at 550. He
issued a third ci tation as a result of the three-ton hoist on the back of the welding truck not
having a safety latch on the hook to prevent cable from coming off the hook. Id. at 551. These
two citations are cha I lenged only on jurisdictional grounds.
1294

II.

Disposition
Justis argues that the assembly site was not a mine and that its employees at the dragline
site were not "miners" because they were not in frequent contact with the extraction site "and the
accompanying dust exposure." J. Br. at 4. Relying on cases arising under Title IV of the Mine
Act, which governs black lung benefits, Justis contends that its employees would be ineligible for
black lung benefits because they are not "miners," and, therefore, estoppel prevents the Secretary
from taking a contrary position in this proceeding. Id. at 4-6; J. Rep. Br. at 4-5. Further, Justis
asserts that section 3(h)(l) of the Mine Act is unconstitutionally vague because it fails to give
Justis fair warning of when and where its jurisdiction applies. J. Br. at 6-8; J. Rep. Br. at 5-8.
Justis continues that Congress did not intend that vendors of welding services be covered by the
Mine Act. J. Br. at 8-9. Justis further argues that the judge erroneously concluded that the site
where the dragline was being constructed was a "mine" even though there was no evidence in the
record establishing the identity of the owner or lessor of the site. Id. at 9-1 O; J. Rep. Br. at 1-2.
Justis continues that the judge incorrectly assumed that CDK was not a trespasser and that CDK
and Justis were invitees of the operator of the Navajo Mine. J. Br. at 10; J. Rep. Br. at 1-2.
Similarly, Justis contends that there was no evidence establishing that the dragline was being
assembled at the CDK site for use at the Navajo Mine. J. Br. at 10-12; J. Rep. Br. at 2-3. Justis
also argues that there was no evidence to establish that the only work done at the assembly site
was on the dragline. J. Br. at 12. Finally, Justis argues that its welding truck was exempted from
section 77.410 by the Secretary's PPM, because it was a "service" vehicle. J. Br. at 9, 12-14.
The Secretary argues that the plain language of section 3(h){l) of the Mine Act
establishes the dragline assembly site is a "mine." S. Br. at 6-9. The Secretary asserts that cases
addressing black lung benefits are not controlling, pointing out that the definition of a ''mine" in
section 3(h)(2.), which applies to black lung cases, has a "geographical component" that section
3(h)(l) does not have- requiring that structures, facilities, machinery, and other property be
"placed upon, under, or above the surface of such land .... " Id. at 10-13. The Secretary also
notes that the courts and the Commission have repeatedly held that the definition of a "mine"
should be applied expansively. Id. at 12-14. Alternatively, the Secretary argues that her
interpretation of the definition of"mine" should be given deference. Id. at 15-16. The Secretary
contends that Justis' argument that the Mine Act is unconstitutionally vague was not raised
before the judge and, therefore, should not be considered by the Commission. Id. at 16. The
Secretary continues that, in any event, Justis had adequate notice of Mine Act jurisdiction. Id. at
16-19. The Secretary further contends that the judge's factual findings are supported by
substantial evidence. Id. at 19-22. Finally, the Secretary argues that Justis' welding truck is not
within the exception in the PPM, which covers "service vehicles" making visits or deliveries to a
mine. Id. at 22-25.
The first inquiry in statutory construction is "whether Congress has directly spoken to the
precise question at issue." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
1295

U.S. 837, 842 {1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 {Apr. 1996). If a statute
is clear and unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 84243; accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 {D.C. Cir. 1990). In
ascertaining the plain meaning of the statute, courts utilize traditional tools of construction,
including an examination of the "particular statutory language at issue, as well as the language
and design of the statute as a whole," to determine whether Congress had an intention on the
specific question at issue. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); Local Union
1261, UMWA, 917 F.2d at 44; Coal Employment Project v. Dole, 889 F.2d 1127, 1131 {D.C. Cir.
1989).
The definition of a mine is "broad," "sweeping," and "expansive." Marshall v. Stoudt 's
Ferry Preparation Co., 602 F.2d 589, 591-92 (3d Cir. 1979), cert. denied, 444 U.S. 1015 (1980)
("[T]he statute makes clear that the concept that was to be conveyed by the word [mine] is much
more encompassing than the usual meaning attributed to it - the word means what the statute
says it means.").6 Under section 3(h)(l), "coal or other mine" includes "lands, ... structures,
facilities, equipment, machines, tools or other property ... used in, or to be used in, . .. the work
of preparing coal ... " 30 U.S.C. § 802{h)(l) (emphasis added). .
We conclude that the language of the statute is clear. In light of the Mine Act's
expansive language, we further hold that the judge properly determined that the dragline
assembly site is a mine under the definition of section 3(h)(l ). See 22 FMSHRC at 546. The
record clearly demonstrates that the dragline was equipment "to be used in" mining coal. Saint
testified without contradiction that at the time of the hearing, the dragline was in operation at the
Navajo Mine. Tr. 19. Justis welding foreman Bob Sanders also testified that the dragline was to
be used at the mine. Tr. 96; see also Tr. 60. Consequently, there is Mine Act jurisdiction
because a "mine" includes "equipment ... to be used in" mining operations at BHP's Navajo
Mine.
This conclusion is consistent with our reasoning in Jim Walter Resources, where we held
that a common supply shop for several mines that was not located at any of the mines was subject
to Mine Act jurisdiction. In that case we noted that "the hazards to which mines are exposed are
not limited to the hazards of underground mines, but include improperly maintained equipment
and supplies that are used in mining." 22 FMSHRC at 27.
Justis argues that the judge erred in concluding that Justis and CDK were invitees at the
assembly site. J. Br. at 10. Although there was testimony in the record regarding BHP

6

In addition, the legislative history of the Mine Act emphasizes that "what is considered
to be a mine and to be regulated under this Act [shall] be given the broadest possibl[e]
interpretation, and ... doubts (shall] be resolved in favor of ... coverage of the Act." S. Rep.
No. 95-181, 95th Cong., at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Resources, 95th Cong., Legislative History ofthe Federal Mine Safety and Health Act of
1977, at 602 (1978).
1296

ownership of the dragline assembly site (Tr. 14-15), the judge ~id not make a finding on this
issue. Instead, he found that "CDK was not a trespasser on the land. CDK was the principal
employee at the site and exercised control over the site." 22 FMSHRC at 546. Substantial
evidence supports the judge's findings. 7 Saint and Sanders both testified that CDK was a general
contractor responsible for assembling the dragline and that Justis was retained by CDK to
perform cutting and welding. Tr. 16-18, 55, 96. Further supporting the integral relationship
between Justis, CDK and BHP is Sanders' testimony that Justis employees were required to
report to the BHP security personnel upon coming to the site for the first time in order to have a
vehicle inspection. Tr. 82, 90. BHP personnel told Sanders that he would be working at the
CDK site and directed him to it. Tr. 90. In addition, BHP security personnel provided training to
Justis personnel when they entered the mining area. Tr. 97.
Further, the judge's rejection of Justis' challenge based on lack of evidence of ownership
is consistent with Commission precedent. In W J. Bokus Industries, Inc., 16 FMSHRC 704,
707-708 (Apr. 1994), the Commission rejected "insufficient evidence of ownership" of the
equipment in question as a basis for denying jurisdiction where the evidence showed that the
equipment was "used or to be used in mining and that, irrespective of ownership, the cited
conditions would affect miners." 16 FMSHRC at 708. In sum, there was more than adequate
evidence to support the judge's finding that CDK was not a trespasser and was properly at the
assembly site.
Finally, Justis argues that there was no evidence to support the judge's finding that all
work done at the CDK site was done on the dragline. J. Br. at 9, 12. However, Justis' own
witness, Sanders, when asked to describe the work that Justis employees were performing at the
site, identified only cutting and welding on the dragline. Tr. 82-83, 94-95. Similarly, Sanders
testified that the site was used solely by CDK and Justis for the assembly of the dragline. See Tr.
91, 93, 96. Therefore, in the absence of any countervailing testimony, the judge was well
warranted in concluding that the only activity at the site was construction of the dragline.
In regard to Justis' reliance on cases dealing with black lung benefits, it is apparent that a
different definition of"coal mine" applies to those cases. Section 3(h)(l), which defines "coal or
other mine," applies only to Title I of the Mine Act. Section 3(h)(2),8 which defines "coal mine,"

7

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)).
8

30 U.S.C. § 802(h)(2) states in pertinent part: "'[C]oal mine' means an area ofland and
all structures, facilities, machinery, tools, equipmen~, ... and other property ... placed upon,
under or above the surface of such land ... used in, or to be used in ... extracting ... coal .... "
1297

applies to Title IV, the black lung benefits program. The Commission has previously considered
and rejected reliance on cases arising under Title IV because these cases "lack precedential value
in resolving ... Mine Act jurisdictional dispute[s]." Pennsylvania Electric Co., 11 FMSHRC
1875, 1881-82 n.7 (Oct. 1989), aff'd on other grounds, 969 F.2d 1501 (3rd Cir. 1992). In
Westwood Energy Properties, 11 FMSHRC 2408 (Dec. 1989), the Commission explained that
the financial scheme of the black lung benefits program is based on coal production; therefore,
the specified activities in section 3(h)(2) must be tied to coal production. Id. at 2415 n.5. As the
Commission concluded, the black lung benefits cases do not provide a basis from which to
extrapolate an exemption from Mine Act coverage. Id.
Moreover, under section 3(g) of the Mine Act, 30 U.S.C. § 802(g), a "miner" is "any
individual working in a coal or other mine." Thus, contrary to Justis' apparent assertion, an
individual need not be "extracting coal" or "exposed to coal dust" in order to be a "miner" under
the Act. See J. Br. at 4. Accordingly, Justis' argument that its employees were not "'miners' in
the broadest sense of the word" is unavailing. Id.
In its alternative argument, assuming arguendo Mine Act jurisdiction, Justis challenges
only the citation involving its failure to equip its welding truck with a backup alarm. It contends
that the truck is within an exception from the backup alarm requirement in the Secretary's PPM,
which exempts from the regulation's requirements service vehicles making visits to surface
mines. V MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 77 Subpart ESafeguards for Mechanical Equipment, at 171 (1992). The judge concluded that the welding
truck was not a service truck making visits to the mine because it was a truck belonging to an
independent contractor providing welding services at a mine. 22 FMSHRC at 549.

The applicable regulation, section 77.410(a)(l), requires pickup trucks with obstructed
views to have audible backup alarms. The PPM limits application of the regulation by
exempting s.ervice vehicles making visits to the mine.9 Saint testified that the exception covered
UPS and other delivery trucks that do not perform work at the mine. Tr. 56, 76-78. Clearly, the
welding truck was not at the site on a short term basis to make deliveries of equipment or
employees to the mine. Rather, as Saint further testified, the welding truck, which had an
obstructed view, was present at the assembly site throughout the day and served as a portable
work station for cutting and welding on the dragline with employees working behind it. Tr. 2529. Therefore, the judge properly concluded that the welding truck did not fall within the PPM's
exception.

9

The PPM, although not binding on MSHA, is regarded as evidence ofMSHA's policies
and practices. Coal Employment Project, 889 F.2d at 1130 n.5.
1298

III.
Conclusion
For the foregoing reasons, we affirm the judge's determination that the dragline assembly
site was a mine and uphold the citations and penalties.

James C. Riley, Commissioner

Theodore F. Verheggen, Com

Robert H. Beatty, Jr., Commissioner /

/

1299

Distribution
John F. Martin, Esq.
Godwin, White & Gruber
901 Main Street, Suite 2500
Dallas, TX 75202-3727
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

1300

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

November 17, 2000

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

v.

Docket No. WEST 2000-632-M
A.C. No. 10-01299-05529

IDAHO MINERALS

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
ORDER
BY: Jordan, Chairman; Riley and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On September 20, 2000, the Commission received from
Idaho Minerals a request to reopen a penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of
Labor does not oppose the motion for relief filed by Idaho Minerals.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary ofLabor"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, Idaho Minerals, which is represented by counsel, asserts that it never
received a copy of the proposed penalty assessment. Mot. It explains that while it was in the
process of selling its business and closing its operations, 1 it notified MSHA of its change of
address. Idaho Minerals submits that the Department of Labor's Mine Safety and Health
Administration ("MSHA") subsequently sent a second penalty assessment pertaining to a
different violation to its former address. Although the second assessment was sent to Idaho

Idaho Minerals states that it sold its assets~ terminated its workers, settled its accounts,
and shut down more than one year ago. Mot.
1

1301

Minerals' old address, it somehow received the assessment, and then once again notified MSHA
of its new address. Id. It notes that this second penalty assessment and the subject penalty
assessment are consecutively numbered. Id. Idaho Minerals contends that during settlement of
the second assessment, the Secretary's counsel and Idaho Minerals were unaware of the subject
proposed assessment, and that it did not become aware of the assessment until it received a
collection notice for the outstanding debt. Id. Idaho Minerals requests that the proceedings be
"closed in a cost-efficient manner." Id.
We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we
possess jurisdiction to reopen uncontested assessments that have become final by operation of
section 105(a). See, eg., Kenamerican Resources, Inc., 20 FMSHRC 199, 201 (March 1998);
Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993). We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of adequate or
good cause for the failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Preparation Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995). In accordance with Rule 60(b)(l), we have previously afforded a party relief
from a final order of the Commission on the basis of inadvertence or mistake. See National Lime
& Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal·Co., 19 FMSHRC 1613, 161415 (Oct. 1997); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross
DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996).

1302

On the bas~s of the present record, we are unable to e_valuate the merits of Idaho Minerals'
position.2 While Idaho Minerals claims that it did not receive the proposed penalty assessment,
the reasons for, and circumstances surrounding that alleged non--receipt are not clear from the
record. In the interest of justice, we remand the matter for assignment to a judge to determine
whether Idaho Minerals has met the criteria for relief under Rule 60(b). See, e.g., Bauman
Landscape, Inc., 22 FMSHRC 289, 290 (Mar. 2000) (remanding where operator claimed it did
not receive penalty assessment and that the return receipt was not signed by him) ; Harvey
Trucking, 21 FMSHRC 567, 569 (June 1999) (remanding to judge where operator claimed it did
not receive proposed assessment which was sent to operator's address twice but returned to
MSHA undelivered); Warrior Investment Co., 21FMSHRC971 , 973 (Sept. 1999) (remanding to
judge where operator claimed it did not receive proposed assessment and it was not clear from
the record the reason why delivery was unsuccessful). 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., Com 1ssioner

2

In view of the fact that the Secretary does not oppose Idaho Minerals' motion to reopen
this matter for a hearing on the merits, Commission.er Verheggen concludes that the motion
should be granted.
1303

Distribution
Francis P. Yungwirth, Esq.
85 Pine Street South
Suite 106
Timmins, Ontario P4N 2Kl
Canada
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1304

ADMINISTRATIVE LAW JUDGE DECISIONS

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

November 2, 2000
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 99-364-M
A. C. No. 04-00599-05583
Docket No. WEST 99-427-M
A.C. No. 04-00599-05586
Docket No. WEST 2000-50-M
A.C. No. 04-00599-05588

TXIPORT COSTA PLANT,
Respondent

TXI Port Costa Plant

DECISION
Appearances: Jason Vorderstrasse, Esq., Office of the Solicitor, U.S. Department of Labor, Los
Angeles, California and Alan Raznick, Esq., Office of the Solicitor, U.S.
Department of Labor, San Francisco, California for the Petitioner;
Steven R. Blackbum, Esq., Epstein, Becker & Green, San Francisco, California
. for the Respondent
Before:

Judge Weisberger

Statement of the Case

These cases are before me based upon Petitions for Assessment of Civil Penalty filed by
the Secretary of Labor ("Secretary'') seeking the imposition of civil penalties against TXI Port
Costa Plant (''TXI") for allegedly violating various mandatory safety standards set forth in Title
30 of the Code of Federal Regulations. Pursuant to notice, these cases were heard in Alameda,
California, on July 25 and 26, 2000. On September 29, 2000, TXI filed proposed findings of fact
and a brief. On October 2, 2000, the Secretary filed a post hearing brief. On October 23, 2000
TXI filed a reply to the Secretary's post hearing brief. On October 26, 2000, the Secretary filed a
reply brief.

1305

I.

Docket No. WEST 99-364-M.

Introduction.
TXI's Port Costa Plant extracts shale from an adjoining quany, and processes it into kilnhardened aggregate material for use in concrete construction. The finished product, marble-like
pellets, approximately Yi inch in diameter, is moved by a series of chutes and conveyors to one of
six storage silos grouped together in a single structure covered by a flat roof. A variety of
conveyors, screens, and related machinery are located on the roof. The height of the silo
structure is approximately 80 feet. Access to the roof of the structure is via a grated metal
stairway attached to the side of silo No. 2. The edges of the roof are guarded by three horizontal
parallel rails. The upper rail is 40 inches above the ground. The other rails are referred to as the
midrail, and toe, respectively.
A miner working in the scalehouse at the foot of the silos is required to go to the roof of
the structure twice each 12 hour shift, to check the contents of the silos through observation
hatches located on the top of the silos.

A.

Citation No. 7972128.
1.

Violation of 30 C.F.R. §56.11001.

On April 20, 1999, MSHA inspectors, John Pereza and Jerry Hulsey climbed to the top of
the silo structure with several TXI representatives including Doug Evans, TXI's maintenance
supervisor. The inspectors observed an accumulation of aggregate on the top of the No. 2 silo.
There is some conflict in the record regarding the depth of the accumulated aggregate, but the
weight of the evidence establishes that it was at least 6 inches deep. There was no specific
designated P,ath for an employee to travel on top of the silos to check their contents. Nor was
testimony adduced from any witness having personal knowledge of the path normally taken by
miners assigned to check the top of the silos. However, the weight of the evidence clearly
establishes that the materials that had accumulated on top of silo No. 2 were generally in an area
where a miner regularly travels to inspect the contents of the silos. Indeed, both inspectors
testified that they observed footprints in the area of the accumulated material, and their testimony
was not impeached or contradicted in this regard. Further, Evans indicated that he has observed
a miner walking on top of the silo.
In essence, Pereza opined that the accumulated material constituted a stumbling or
tripping hazard, and issued a citation alleging a violation of 30 C.F.R. Section 56.11001 which
provides that"[s ]afe means of access shall be provided and maintained to all working places".
I find that the weight of the evidence establishes that on the day cited there was an
accumulation of marble-size pieces of aggregate to a depth of at least 6 inches on the top of silo
No. 2, that a miner regularly traversed the top of silo No. 2 two times in a 12 hour shift as part of

1306

his duties, and that the accumulated aggregate constituted some degree of a stumbling or tripping
hazard. Accordingly, I find that it has been established that TXI was not in compliance with
Section 56. 11001, supra.
2.

Significant and Substantial.

A "significant and substantial" violation is described in section 104(d)(l) of the Mine 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." 30 U.S.C. § 814(d)(l). A violation is
properly designated significant and substantial "if based upon the particular facts surrounding the
violation there exists a reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature." Cement Division, National Gypsum Co.,
3 FMSHRC 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained its
interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary of Labor must
prove: ( 1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to 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.

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985), the
Commission stated further as follows:
We have ·explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U. S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
As set forth above, the record establishes a violation of a mandatory safety standards and
the fact that the violative condition contributed to a stumbling or tripping hazard. The critical
issues for resolution are the third and fourth elements of Mathies, i.e., the likelihood of a injury
producing event, and the likelihood of this event producing an injury of a reasonably serious
nature.

1307

It appears to be TXI's position that the evidence does not establish that there was any
hazard of an employee falling off the silo as a result of the accumulated aggregate. In essence,
TXI argues in this regard that a guardrail located along the edge of the silo, consisting of three
parallel horizontal bars, the highest being 42 inches above the roof surface of the silo, protected
an employee from falling off the silo, and landing on the ground 80 feet below. In this
connection, the inspector testified that, at a point along the guardrail, the material had
accumulated to a height of20 inches which would have, in essence, diminished the protection of
the upper guardrail by effectively reducing its height. In arguing that this testimony should not
be accepted, TXI refers to geometry calculations predicated upon a 38 degree angle of repose of
the accumulated material, as testified to by Evans, and the sine of this angle which results in a
conclusion that at a point 12 inches from the edge of the silo 1, the height of the accumulated
material could not have been more than 3.6 inches. However, I talce administrative notice of the
fact that the sine of an angle, which is part of a right triangle, is the ratio between the side
opposite the angle and the hypotenuse, (Random House Websters Unabridged Dictionary
("Webster's") (2°d Ed., 1999) at 1784.) in this case an unknown distance. In contrast, the tangent
of an angle in a right triangle, is the ratio between the side opposite the angle and the side
adjacent to the angle. (See Webster's at 1941.) Hence, given an angle of 38 degrees, and a
horizontal distance of 12 inches from between the edge of the silo, and applying the tangent of a
38 degree angle, the vertical height of the accumulation would be at a maximum of
approximately a little more than nine inches. As a result, the relative height of the bars of the
guardrail, especially the upper rail, would be reduced thus diminishing their ability to protect an
employee from falling off the roof of the silo. In addition, I note the existence of the following
conditions: the round shape of the accumulated material; the location of a hose in the area,
which created a further stumbling and tripping hazard; the presence of metal structural crossmembers in the area; and the fact that the area was traveled twice each 12 hour shift. I find that
these conditions, in combination, establish that an injury producing event was reasonably likely
to have occurred. Further, due to the presence of metal structural cross-members, the reduction
in height of the protective guardrail, and the height of the subject silo, I find that it was
reasonably likely that an injury resulting from the violation, would have been of a reasonably
serious nature. I thus find that, within the context of this record, it has been established that the
violation was significant and substantial.

3.

Unwarrantable Failure.

The citation at issue alleges the violation herein was as a result of TX.I's unwarrantable
failure. Unwarrantable failure has been defined by the Commission to constitute more than

1

The slope of the material would be the hypotenuse of a right triangle, the horizontal distance of
12 inches from the edge of the silo would be the side of the triangle adjacent to the angle ofrepose, and
the vertical distance, to be determined, between the ground and the height of the material would be the
side opposite that angle.

1308

ordinary negligence i.e., negligence that reaches the level of"aggregated conduct". Emery
Mining Corp., 9 FMSHRC 1997, 2003-2004 (Dec. 1987).
There is an absence of any direct evidence in the record as to how long the accumulated
aggregate had been in existence up until the time it had been observed by the inspectors on April
20, 1999. The only evidence of record relating to the existence of material in the cited area
consist of notations found in the OPERATOR'S CHECKLIST BEGINNING EACH SHIFT for
April 16, 17 and 18, which, under the listing "Material Build-up'', indicates "onto Silo# 2". (Co.
Ex. 7)
I note Evans' testimony that when he reviewed each of these reports early in the morning
after the shift in which they were written, and noted that "walkways" were checked as "ok", and
that they "were being worked on", he concluded that the reports indicated that whatever spillage
had occurred was being addressed, and no hazard existed. It appears to be TXI's position in this
regard that accordingly it can not be found that its management was not effectively acting to
address to problem of material build-up. However, to the contrary, I find that at best, Evans'
testimony relates merely to the condition of "walkways", and does not relate at all to the
condition of materials on the top of silo No. 2, which is the only area in issue.
I also note TXI's assertion that, in essence, its negligence herein should be mitigated by
the fact that it had taken steps to prevent hazards associated with material build-up such as
directives in its safety rules to clear walkways, and statements in its collective bargaining
agreement requiring employees to report safety hazards. Also, TXI refers to safety meetings
conducted in the months preceding April 20, 1999, wherein employees were instructed that
"walkways must be cleaned or reported'', and that these topics also had been discussed in prior
meetings in the preceding September and October. However, I accord more weight to the fact
that a build-up of materials in the specific area in issue on April 16, 17 and 18, was noted in preshift reports which were transmitted to management. Additionally, I note that the accumulated
materials were in an area generally traversed by a miner two times each shift, from April 16 to
April 20, as part of normal operations.
The only reliable evidence ofrecord relating to TXI's efforts to clean the accumulated
material2 consists of notations in the STORAGE AND HANDLING LOG for April 16, 4:00 p.m.
to 2:00 am, and April 18, 4:00 p.m., as follows: "(h]osed off material from top of silo - 2 when I
had the chance" (Emphasis added.) (Co. Ex. 9, page 2, 5). Thus, although some effort may have
been made to clean the accumulated violative materials, it is difficult to conclude, based upon
this quantum of evidence that the efforts constituted more than a token effort, rather than an

2

1 note Evans' testimony that at the time of the inspection the leadman stated that "'I had just
finished cleaning that thing off Thursday night,' or Thursday." (Tr. 113). TXI did not call the leadman
to testify, nor did it indicate that he was not available. Nor is there any other evidence of record
specifically cooborating this hearsay statement of the leadman. Accordingly, I accorded no weight to
Evan's hearsay testimony in this regard.

1309

intensive effort to make the area once again safe for access.
Also, I have considered TXI's arguments that, in essence, inter alia, it should be found
that there was no unwarrantable failure because of its effective abatement efforts. Such an
argument is not relevant relating to the issue of whether the order in question was properly issued
under Section 104(d)(l) of the Act. In this connection I note that Section 104(d)(l) citations and
orders are to be issued when the violation is" ... caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety standards, ... ". Hence, what is relevant
is TXI's conduct prior to the time of the alleged violation and not subsequent to the violation. As
such, any evidence regarding abatement efforts are irrelevant regarding the level of its negligence
prior to the cited violation.
Therefore, for all the above reasons, I find, within the context of the record as evaluated
above, that the violation herein resulted from TXI's negligence which was more than ordinary,
and reached the level of aggregated conduct. Hence, I find that the violation was caused by
TXI's unwarrantable failure. (See Emery, supra,)
4.

Penalty.

I find that the gravity of the violation to be relatively serious essentially for the reason set
forth above (I.) (A.) (2.) supra. Also, I find the level of negligence relatively high essentially for
the reasons set forth above (I.) (A.) (3.) supra. Considering the remaining factor set forth in
section 11 O(i) of the Act as stipulated by the parties, I find that a penalty of $2,500 is appropriate.

B.

Order No. 7972129.

Pereza also issued Order No. 7972129 which alleges a violation of 30 C.F.R. Section
56.18002(a). Section 56.18002(a) supra provides that "[a] competent person ... shall examine
each working place at least once each shift for conditions which may adverse affect safety or
health. The operator shall promptly initiate appropriate action to correct such conditions."
(Emphasis added.) Hence, in order to prevail, the Secretary must establish either that TXI did
not examine each working place at least once per shift, or that it did not promptly "initiate"
action to correct the conditions which may adversely affect safety or health.
It appears to be the Secretary's position, as set forth in the posthearing brief, that this
order concerns itself not only with regard to the material as it existed at the time of the inspection
" ... but also with regard to spilled material and lack of effective cleanup over the previous four
months." In support ofthis argument the Secretary refers to Pereza's testimony th~t spillage on
top on the silos" ... had been listed everyday for almost four months ...." (Tr. 40). The basis for
this conclusion appears to be Pereza's testimony that "work place examinations" reports for four
months beginning January 1, 1999, Pereza's testimony that stated indicated instances of material
build-up on top of the silos, not just silo No. 2, and that these instances "far outnumbered"
cleanup efforts. (Tr. 41 ). In response to a leading question on direct examination he agreed that

1310

these reports indicated the existence of a hazard. He was asked whether the reports listed the
word hazard, and he stated that it was his opinion, i.e., that he had drawn a conclusion that the
reports indicated a hazard.
Clearly the Secretary has the burden of establishing all elements required for a violation.
The Secretary did not proffer relevant pages of the reports which allegedly set forth notations of
spillages and inadequate cleanup. The Secretary did not proffer any explanation for its failure to
do so. The reports are the best evidence as their contents regarding the existence of spillages,
their location, the number of instances of spillages on top of silos, and clean-up efforts. As such,
I find that Pereza's testimony alone, to be of insufficient probative weight to establish existence
of spillages on silos "on many occasions", and that these instances far outnumbered cleanup
efforts.
Further, regarding spillages on the top of silo No. 2 on April 16, 17 and 18, TXI's records
indicate that a examinations had been performed in the areas in question and build up of
materials were noted (Co. Ex. 7). Thus, in order to establish a violation herein, the Secretary
must establish that TXI was not in compliance with the second sentence of Section 56.18002(a)
supra, which requires that "[t]he operator shall promptly initiate appropriate action to correct
such conditions." (Emphasis added.)
It appears to be the Secretary's position that, in essence, this sentence was violated as the
unsafe conditions were not corrected, and that there is "no indication in Respondent's records of
any time being taken to clean off the material on top of silos." I do not find much merit in the
Secretary's position. The clear wording of the second sentence of Section 56.18002(a), supra,
does not require the Secretary to establish either the adverse condition was not corrected, or that
time had been taken to clean material from the top of the silos. Rather, it must be established
that TXI did not initiate cleanup action to correct the spillage of material. In this connection, the
only evidenc;e of record relating to TXI' s actions or lack of action, regarding spillages that had
occurred on April 16, 17 and 18, consists of statements in entries in the Storage and Handling
l&g for April 16,.and 18, as follows: "[h]osed off material from top ofsilo-2 when I had the
chance" (Emphasis added). (Co. Ex. 7) These statements in TXI's reports indicate that it had
initiated action to correct the adverse unsafe accumulation of material. Accordingly, for the
above reasons, I conclude that the Secretary has failed to establish a violation of Section
56.18002(a) supra.

I.

Docket No. WEST 99-427-M.
A.
I.

Order No. 7972161.
Violation of30 C.F.R. § 56.12040

On June 19, 1999, Pereza conducted another inspection of the site at issue. He examined
a 480v. breaker box that was approximately 82 inches high, 70 inches, wide and 12 inches deep.

1311

Two metal doors enclosed the interior of the box, and had to b~ opened to gain access to the
interior. The lower right-hand comer of the box also contained a transformer, 18 to 20 inches
wide and approximately 20 inches high. The surface area of the exposed wires on the right side
of the box was approximately one to two square feet. The breaker box also contained energized
wire connections, and an energized heat-sink on the left side of the box.
A circuit breaker for a 480v. Steadman crusher was also located in the upper right hand
comer of the box. In normal operations, the breaker is thrown several times a week to shut off
electirc power to the cursher to allow the cursher to be repaired or maintained.
The breaker box was designed to be used with a handle, located on the outside of the box,
which allowed the circuit breaker to be thrown without opening the box. This handle had not
been in place for approximately 10 years. Hence, in normal operations, it was the practice of TXJ
employees to throw the circuit for the crusher by opening the right-hand door of the breaker box
and using a "short section" of a 2 x 4 piece of lumber to throw the breaker.
Pereza issued an order alleging a violation of 30 C.F.R. Section 56.12040 which provides
as follows: "[o]perating controls shall be installed so that they can be operated without danger of
contact with energized conductors."
In essence, it is TXI's position that the breaker box is not an "operating control", and
hence, it was improperly cited. TXI relies on the fact that the panel of buttons and switches used
to operate the crusher, were located not in the box, but were elsewhere on the site. Thus, TXI
argues that accordingly the breaker box is not the operating control for the crusher. TXI does not
cite any authority, regulatory history, or commonly accepted definition, that supports its
conclusion that a breaker used to de-energize a piece of equipment is not an "operating control".
It appears to be TXI's position that the breaker box should not be considered an operating control
as it is access.ed only infrequently to de-energize the crusher to perform repairs or maintenance
work. No authorities are cited which would mandate such a narrow construction to be accorded
to the term "operating controls".
In normal operations the breaker at issue is thrown at least once a week to cut off power
to the crusher in order to perform repair or maintenance work. It follows that, upon completion
of the repair or maintenance work, the breaker would, of necessity, be reset allowing electricity to
resume to flow to the crusher which would directly enable the crusher to operate. Indeed, the
crusher could not operate if the breaker would not be reset to supply electricity. Since throwing
the breaker stops the operation of the crusher, and resetting it allows the crusher to operate, it
certainly controls its operation and, accordingly, is within the perview of the term "operating
controls" (see, Webster's at 1357).
The only way the breaker could be thrown and reset required a miner to open the exterior
doors of the box. According to Pereza, the miner would thereby be exposed to an approximately
I Yi square foot area of energized 480v. conductors, thus subjecting the miner to an injury by

1312

virtue of inadvertent contact with these energized conductors. This testimony by Pereza has not
been impeached or contradicted, and I therefore accept it. I find that the manner in which the box
was installed, with a missing lever on the outside of the box,required the interior breaker to be
operated in a situation were there was danger of contact with energized conductors. I thus find
that it has been established the TXI did violate Section 56.12040 supra.
2.

Significant and Substantial.

According to Pereza, in normal operations, as a result of the violative condition, i.e. the
lack of the lever outside the breaker box, once a week a miner is required to push or pull a
tension lever on the breaker at issue. Pereza testified that, in performing these operations, the
miner could lose his balance and slip, and be exposed to a significant area of energized 480v.
1200 amp components, which could result in possible fatal electric shock from contact with the
energized components. Since these facts as testified to be Pereza were not impeached or
contradicted, I accept them. Within this context I find that it has been established that the
violation was significant and substantial, (see Mathies supra.)
3.

Unwarrantable Failure.

In its brief TXI argues that, in essence, the violation was not unwarrantable since its

managers were not aware that the conditions constituted a violation of Section 56.12040, supra,
as it had not been cited for this condition in the past. However, no testimony was adduced from
any ofTXI's managers to the affect that, a reasonably prudent person familiar with the industry
would have understood that the breaker box at issue was not to be considered an operating
control, or that its managers did not consider the box to be an operating control, or that it relied
on MSHA's not having previously cited the box in the past as indicating that the box was in
compliance with Section 56.12040, supra, as it was not an operating control. In the absence of
such proof, I. do not accept TXI's arguments in this regard.
Also, it appears to be the position ofTXI, that its negligence should be mitigated by the
fact that, as testified to by Evans, there have been no injuries reported arising from the condition
at issue subsequent to TXI's assuming ownership of the site in 1996. TXI further asserts that
MSHA has repeatedly inspected this area, and until the issuance of the order at issue, had not
previously cited the absence of.an outside handle on the breaker box. On the other hand, the
hazards involved in opening the box door and throwing the break.er switch with a piece of wood,
had existed for 10 years. Management was aware that miners were throwing the breaker in this
fashion and had, according to Pereza's uncontradicted testimony, so instructed its employees.
Within this framework I find that it has been established that the violation herein was as a result
ofTXI's unwarrantable failure. (See, Emery supra)

1313

4.

Penalty

Inasmuch as the violation could have resulted in a fata lity, the level of gravity was
relatively high. Further, for the reasons set forth above, the level of negligence was more than
ordinary and reached the level of aggravate conduct. Considering the further factors set forth in
Section 1IO(i) of the Act I find that a penalty of$2,500.00 is appropriate.

B.

Order No. 7972162.
1.

Violation of C.F.R. § 56.12040. supra

On June 10, 1999, Pereza also inspected the Westinghouse Motor Control Center
("MCC"), which houses circuit breakers for motors and other equipment at the plant. The circuit
breakers are contained inside cabinet doors that were designed to be used with a rod that did not
require the door to be opened in order to throw the circuit breaker. Three cabinet doors, each
enclosing a separate breaker, did not have any rods. Accordingly, these doors would have to be
opened in order to throw the circuit breaker inside. A written statement on the outside of each
door stated that the door had to be opened to activate the breaker. Hence, once a week, a miner
would have to reach inside the cabinet to throw the circuit breaker in order to repair or maintain
certain electrical equipment. Various energized wires and a circuit breaker were located inside
each cabinet. There were four square inches of surface area of exposed energized 480v.
conductors inside each cabinet. Pereza considered the breaker boxes to be "operating controls'',
and issued an order alleging a violation of Section 56.12040 supra.
Pereza opined that the boxes were operating controls. In contrast, no one testified on
behalf ofTXI regarding any definition of"operating controls" and whether breakers were within
the scope of that definition as commonly understood in the industry. Nor did it present any
evidence on this point. Since circuit breakers are thrown to cut off power to equipment to repair
or maintain them, and then are reset, which supplies electricity to this equipment, I conclude, for
the reasons discussed above ((II.) (B.) (A.), supra,) that they are within the scope of "operating
controls".
Further, due to the presence of energized 480v. wires inside the box, which has to be
opened to throw or reset a breaker due to the violative condition herein, I find that miners
performing this task would be exposed to the possibility of electric shock due to inadvertent
contact with the energized conductors inside the box. Accordingly, I find that due to the lack of a
rod on the outside of the cabinet doors at issue, the circuit breakers inside these boxes could only
have been operated by exposing miners to danger of contact with energized conductors located
inside the box. Accordingly I find that TXI did violate Section 56.12040 supra.

1314

2.

Unwarrantable Failure.

Because it was obvious that the boxes at issue no longer had handles on the outside, and
that for many years instructions on the outside of the boxes informed employees to open the door
in order to throw the breakers, I conclude that it has been established that the violation resulted
from TXI's unwarrantable failure (see, Emery supra)3.
3.

.Penalty

I find that the gravity of this violation was relatively high as it could have resulted in a
serious injury resulting from electric shock. Also, I find, as set forth above, that the negligence
was relatively high. Taking into account the further factors set forth in Section 11 O(i) of the Act
as stipulated to parties, I find that the proposed penalty of $2,000.00 is appropriate.

III.

Docket No. WEST 2000-50.

During the course of the hearing on July 26, 2000, regarding the citations at issue in
Docket No. WEST 2000-50, the parties reached a settlement, and made a joint motion to approve
the settlement, and the motion was granted at the hearing.
The parties proposed to have the total penalty initially sought by the Secretary for the
violations alleged in these citations to be reduced from $397.00 to $228.00. I reviewed the
record regarding these citations and the evidence presented at the hearing, and I found the
proposed settlement to be appropriate under the terms of the Act, and I granted the motion.

3

The order at issue was issued under Section 104(d)(2) of the Act, which requires the existence
of a violation that resulted from the operator's unwarrantable failure, but not necessarily a significant and
substantial violation. Thus, I reject as irrelevant TXl's argument that the order at issue should be vacated
because Section 104(d)( 1) sets forth that an order can properly be designated as an unwarrantable failure
only if the inspector has also concluded that the violation was significant and substantial, whereas the
order at bar does not allege the violation at issue to be significant and substantial. However, such an
argument does not pertain to the order at issue which was issued under Section 104(d)(2) of the Act.
Section 104(d)(2) pertains to a withdrawal order that was issued pursuant to Section 104(d)( 1) which
does not contain any requirement that the order be predi~ated upon a violation that is significant and
substantial.

1315

ORDER
It is ORDERED that, within 30 days of this decision, TXI shall pay a total civil penalty
of $7,228.00. It is further ORDERED that Order No. 7972129 be Dismissed.

~~
Administrative Law Judge

Distribution: (Certified Mail)
Jason Vorderstrasse, Esq., Office of the Solicitor, U.S. Department of Labor, 350 South
Figueroa Street, Suite 370, Los Angeles, CA 90071-1202
Alan M. Raznick, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street
Suite 1110, San Francisco, CA 94105
Steven R. Blackbum, Esq., Epstein, Becker & Green, P.C., Two Embarcadero Center, Suite 1650
San Francisco, CA 94111
/set

1316

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

November 3, 2000
WHITE CONSTRUCTION CO. INC.,
Contestant

CONTEST PROCEEDINGS

Docket No. SE 2000-228-RM
A. C. No. 7759166;8/9/2000
Docket No. SE 2000-229-RM
A.C. No. 7759167; 8/9/2000
Docket No. SE 2000-230-RM
A. C. No. 7759168;8/9/2000
Docket No. SE 2000-231-RM
A. C. No. 7759169;8/9/2000

V.

Docket No. SE 2000-232-RM
A. C. No. 7759170;8/9/2000

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

Docket No. SE 2000-233-RM
A. C. No. 7759171;8/9/2000
Docket No. SE 2000-234-RM
A. C. No. 7759172;8/9/2000
Docket No. SE 2000-235-RM
A. C. No. 7759173;8/9/2000
Docket No. SE 2000-236-RM
A. C. No. 7759174; 8/9/2000
Docket No. SE 2000-237-RM
A. C. No. 7759175;8/9/2000
Docket No. SE 2000-238-RM
A. C. No. 7759176;8/9/2000
Docket No. SE 2000-239-RM
A. C. No. 7759177; 8/9/2000
Docket No. SE 2000-240-RM
A. C. No. 7759178; 8/9/2000
Docket No. SE 2000-241-RM
A. C. No. 7759187;8/9/2000
1317

ORDER OF DISMISSAL
Before: Judge Barbour
On September 8, 2000, counsel for the operator fil ed with the Commission notices of
contest for fou rteen citations that were issued against the operator on August 9, 2000 by an
MSHA inspector. On September 11 , 2000, I issued a letter acknowledging receipt of the notices
of contest and advising the parties the docket numbers assigned to these matters. The September
I 1 acknowledgment letter was mailed to counsel fo r the operator and the Department of Labor's
So licitor's office in Arlington Virginia who represents MSHA.
On October I 0, 2000, the Solicitor fil ed a motion to dismiss the notices of contest and
memorandum in support of the motion. The Solicitor argues that the operator failed to notify the
Secretary that it was contesting the c itations as required by the Mine Act and Commission
procedural rules. 30 U.S.C. § 8 15(d); 29 C.F.R. § 2700.20(b). According to the Solicitor, the
Secretary first became aware of the contests when the Sol icitor's Arlington offi ce received the
September 11 acknowledgment letter on September 12, 2000, which was forwarded to the
Atlanta Regional offi ce on September 18, 2000. On September 25, 2000, the Solicitor contacted
the Commission and a copy of the notice of contest was faxed to him on that day. The Solicitor
asserts that the Commission and the Secretary are two distinct entities under the Act and that
service on one is not service on the other. The Solicitor also notes that in Diahlo Coal Co., 15
FMSHRC 1605 (August 1993), I dismissed a notice of contest that was three days late because it
depri ved the Commission of jurisdiction .
On October 16, 2000, counsel for the operator fi led a response to the Solicitor's motion to
dismiss. Counsel asserts that he timely fil ed the notices with the Commission which was
con firmed by the September 11 acknowledgment letter. In addition, counsel claims that White
Construction· filed its notice o f contest with the Commission based on oral advice it had received
from the Commission. Counsel alleges that White Construction was only instructed to fi le its
notices with the Commission and to attach copies o f all fourteen violations which it did. Counsel
also distinguishes Diablo Coal noting that the operator in that case served neither the Secretary
nor the Commission with its notice within the requisite thirty days. By contrast, the notices in
these cases were ti mely fil ed with the Commission. Counsel asserts that thi s case is more like
Rivco Dredgi ng Corp., I 0 FM SH RC 624 ( 1988), where the Commission held that " innocent
procedural missteps alone should not operate to deny a party the opportunity to present its
objections to citations or orders."
Section 105(d) o f the Mine Act, 30 U.S.C. § 8 15(d), provides in relevant part:
If, within 30 days of receipt thereof, an operator ... notifies the Secretary that he
intends to contest the issuance ... of an order issued under section I 04(a), or
citation ... the Secretary shall immediately advise the Commission of such
notification, and the Commission shall afford an opportunity for a hearing.
13 18

Commission Rule 20(b) carries over the requirements of section 105(d) and states:
Contests filed by an operator... shall be filed with the Secretary at the appropriate
Regional Solicitor's Office or at the Solicitor's Office, Mine Safety and Health
Division, Arlington Virginia, within 30 days of receipt by the operator of the
contested citation, order, or modification.
Commission Rule 20(c), 29 C.F.R. § 2700.20(c), requires the Secretary to notify the Commission
immediately when a notice of contest has been filed.
A long line of cases dating back to the Interior Board of Mine Operation Appeals have
held the late filing of notices of contest of citations is not permissible under the Mine Act and
under its predecessor the Federal Coal Mine Health and Safety Act of 1969. Consolidation Coal
Company, 1MSHC1029 (1972); Old Ben Coal Co., 1MSHC1330 (1975); Alexander Brothers,
1 MSHC 1760 (1979); Island Creek Coal Co. v. Mine Workers, 1 FMSHRC 989 (Aug 1979);
Amax Chemical Corp., 4 FMSHRC 1161(June1982); Industrial Resources. Inc., 7 FMSHRC
416 (March 1985); Allentown Cement Company. Inc., 8 FMSHRC 1513(October1986); Rivco
Dredging Corporation, 10 FMSHRC 889 (July 1988); Big Hom Calcium, 12 FMSHRC 463
(March 1990); Prestige Coal Co., 13 FMSHRC 93 (January 1991); Costain Coal Inc., 14
FMSHRC 1388 (August 1992); Diablo Coal Company, 15 FMSHRC 1605 (August 1993); C and
S Coal Company, 16 FMSHRC 633 (March 1994); Asarco. Incorporated, 16 FMSHRC 1328
(June 1994); See also, ICI Explosives USA. Inc., 16 FMSHRC 1794 (August 1994). However,
late filing of a contest of a citation or order has been allowed where the Secretary's own conduct
is responsible for the operator's delay in filing a notice of contest. Blue Diamond Coal Company,
11 FMSHRC 2629 (Dec. 1989), See also, Consolidation Coal Co., 19 FMSHRC 816 (April
1997); Freeman Coal Mining Corporation, l MSHC 1001 (1970).
The Mine Act and Commission rules are explicit in requiring the Secretary to be notified
of the operator's intent to contest within 30 days of the issuance of a citation. It is clear in the
instant matters that counsel did not notify the Secretary as required by the Mine Act and
Commission Rules. The notices were sent to the Commission and not to the Secretary.
Notification of the Secretary was only achieved when the September 11 acknowledgment letter
was mailed which was more than 30 days after the citations were issued. Therefore, the contests
were untimely and it must be determined whether these cases should be dismissed in accordance
with established precedent or whether the operator's failure to timely contest falls within the
exception as set forth above where actions of the Secretary cause an operator to be late.
Counsel does not allege that the Secretary engaged in conduct that resulted in the delay,
rather he alleges the actions of the Commission that were to blame. Counsel claims that the
operator was only instructed to file the notices with the Commission and to attach copies of the
violations. Counsel does not state who was contacted at the Commission with respect to the
filing of the contests or the qu.estions asked that individual, but simply identifies one alleged
1319

statement made by a Commission employee regarding the requirements for filing a contest with
the Commission. The Commission has no record of receiving a telephone call concerning these
matters.
Moreover, a review of the notices of contest shows that counsel was unaware of the
independent role of the Commission. Counsel erroneously addressed his contests to the ''United
States Department of Labor, Federal Mine Safety and Health Review Commission." I can only
assume he did so because he did not familiarize himself with the Mine Act or the rules of the
Commission prior to contacting the Commission or making his filing. Had he consulted the rules
or the Act it should have been evident that the Secretary and the Commission are independent
entities and that he was required to file his contests in a timely fashion with the Secretary.
Because counsel has failed to demonstrate that misconduct by the Commission occurred in these
matters and because counsel has failed to justify why he was unaware of the Commission's rules
and the Mine Act's requirements, I find that sufficient reasons do not exist to permit these
untimely notices of contest to proceed and therefore these matters must be dismissed.
In light of the foregoing, the Solicitor's motion to dismiss these case is GR..\NTED and it
is ORDERED that these cases are DISMISSED. Counsel for the operator should note,
however, that the failure properly to contest a citation does not preclude the operator from
challenging in a subsequent civil penalty proceeding the violation alleged in the citation and/or
any of the findings associated with the alleged violation.

.._ -

. (/..., ,l ·d,·L
r.,,.~;,:7/,,.,,_.,e//. . .

c..-------

David F. arbour
Chief Administrative Law Judge

Distribution:
Michael K. Grogan, Esq., Coffman, Coleman, Andrews & Grogan, 2065 Herschel Street,
Jacksonville, FL 32204
Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 400, Arlington, VA 22203
/wd

1320

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

November 7, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CNIL PENALTY PROCEEDING
Docket No. LAKE 2000-64-M
A. C. No. 33-00168-05520

V.

SHELLY MATERIALS INC OSTRANDER PLANT,
Respondent

Mine: Shelly Materials Inc Ostrander Plant

DECISION APPROVING SETTLEMENT
Before:

Ju dge Barbour

This case is before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977. The Solicitor has filed a motion to
approve settlement. A reduction in the penalty from $7,000.00 to $4,300.00 is proposed. I have
considered the representations and documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth in section 1 lO(i) of the Act
WH EREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that the operator pay a penalty of$4,300.00 within 30 days of this order.

,j)v/ 1~1{~,/
~
David Jfa;b~ur
Chief Administrative Law Judge

Distribution:
Maya K. Ewing, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8th
Floor, Chicago, IL 60604

'"-,

Robert B. Mill, Vice President, Shelly Materials, Inc., P. 0. Box 266, Thornville, OH 43076
/wd
1321

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

November 17, 2000
BRIAN T. CHRISTIE,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 2000-23-D
PITT CD 99-05

v.

No. 1 Mine
Mine ID 36-08725

MOUNTAIN SPRING COAL COMPANY,
Respondent

DECISION
Appearances:

Brian T. Christie, Worthington, Pennsylvania, prose;
Julia K. Shreve, Esq., Jackson & Kelly, P.L.L.C., Charleston,
West Virginia, on behalf of Respondent.

Before:

Judge Melick

This case is before me upon the Complaint by Brian T. Christie, pursuant to Section
105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., the "Act,"
alleging that he was discharged by the Mountain Spring Coal Company (Mountain Spring) on
August 2, 1999, presumably in violation of Section 105(c)(l) of the Act. 1 More particularly Mr.
Section 105(c)(1) of the Act provides as fo llows:
No person shall discharge or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the exercise of the statutory rights of
any miner, representative of miners or applicant for employment in any coal or other mine
subject to this Act because such !Jliner, representative of miners or applicant for employment has
filed or made a complaint under or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 10 I or because such
miner, representative of miners or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner, representative of miners or appl icant
for employment on behalf of himself or others of any statutory right afforded by the Act.

1322

Christie alleges in his initial complaint filed August 3, 1999, with the Department of Labor's
Mine Safety and Health Administration (MSHA) as follows: 2·
1)

Superintendent trying to force me to take vacation for injury instead of
compensation.3

2)

Superintendent asked me ifl wanted to fireboss again on 7-30-99 and
wanted an answer on 7-31-99. On 7-31 -99 I told the face boss Walter Delt
I did not wish to fireboss. On 8-2-99 at approximately 6:30 a.m. Mr.
Saddler told me I was suspended with intent to Discharge, because you are
no good to me if you wont fireboss. I don't need you.

In a statement to MSHA special investigator John Savine, on August 12, 1999, Mr.
Christie stated that "I believe I would not have been fired if I would have agreed to fireboss"
and at hearings testified that he was discharged because he refused to :fireboss on July 30, 1999.
These proce~dings are limited to consideration of those allegations.
Mr. Christie seeks reinstatement and damages, including back pay and reimbursement of
medical expenses. However, since he claims that because of his limited functional capacities
from a pre-existing medical condition he must be exempted, in any reinstatement order, from
working as a fire boss and from operating any equipment such as a roof bolter or power scoop
which could aggravate the pain in ms neck. Indeed, it appears that the only job for which Mr.
Christie would accept reinstatement would be that of bridge operator.
This Commission has long held that a miner seeking to establish a prima facie case of
discrimination under Section 105(c) of the Act bears the burden of production and proof that he
engaged in protected activity and that the adverse action complained of was motivated in any part
by that activity. Secretary on behalfof Pasula v. Consolidated Coal Co., 2 FMSHRC 2786,
2797-2800 (1980), rev'd on grounds, sub nom. Consolidated Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); and Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC
803, 817-18 ( 1981 ). The operator may rebut the prim a facie case by showing either that no
protected activity occurred or that the adverse action was in no part motivated by the protected
activity. If an operator cannot rebut the prima facie case in this manner, it may nevertheless
defend affirmatively by proving that it would have taken the adverse action in any event on the
basis of the miner' s unprotected activity alone. Pasula, supra; Robinette, supra. See also

2

In a letter dated October 6, 1999, MSHA concluded that a violation of Section
105(c) of the Act had not occurred. Mr. Christie thereafter requested relief from tills
Commission.
3

In his subsequent statement to MSHA investigator John Savine on August 12,
1999, Christie acknowledged that he had by that time received all the Workers' Compensation to
which he was entitled (Exh. C-3, p.3).
1323

Eastern Assoc., Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (41h Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 194, 195-196 (61h Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test). Cf. NLRB v. Transportation Management Corp., 462 U.S.
393, 397-413 (1983) (approving nearly identical test under National Labor Relations Act.)
A miner's refusal to perform work is protected under the Act, if it is based upon a
reasonable, good faith belief that the work involves a hazard. Pasula, supra, 2 FMSHRC at
2789-96; Robinette, supra, 3 FMSHRC at 807-12; Secretary v. Metric Constructors, Inc.,
6 FMSHRC 226, 229-31 (February 1984), aff'd sub nom. Brock v. Metric Constructors, Inc.,
766 F.2d 469, 472-73 ( l l 1h Cir. 1985); see also Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C.
Cir. 1988); Consolidation Coal Co. v. FMSHRC, 795 F.2d 364, 366 (41h Cir. 1986). It is further
required that "where reasonably possible, a miner refusing work should ordinarily communicate
... to some representative of the operator his belief in the safety or health hazard at issue."
Secretary on behalf ofDunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (February
1982); see also Simpson v. FMSHRC, supra, 842 F.2d at 459; Secretary on behalf of Hogan and
Ventura v. Emerald Mines Corp., 8 FMSHRC 1066, 1074 (July 1986), aff'd mem., 829 F.2d 31
(3rd Cir. 1987) (table cite).
Christie had been off from work and receiving workers' compensation from April 21
through May 10, 1999, because of a knee injury and again from June 25 through July 29, 1999,
because he reinjured that knee. According to Christie he reported back to work on July 30, 1999,
to "full duty" upon the doctor's release without any restrictions (Exh. C-3, pp.2-3). Christie
testified that mine superintendent Seibert Saddler had asked him on July 301h to perform fireboss
duties and that he told him that he did not want to do it. He explained at hearing that performing
the duties of a fire boss, traveling in a jeep in 36 to 41 inch-height coal and necessitating the
twisting and wrenching of his neck, was painful. According to Christie, Saddler knew the history
of his neck injury and pain based on his pre-employment physical exam and should have
accepted him with his work limitations. 4 Christie also admitted however that even ifhe was
reinstated be would not be able to perform the duties of a fireboss nor could he operate a power
scoop or roof bolter .because of his neck pain. Indeed, he testified that the only work he could
perform at the mine was that of bridge operator. He maintains that he is unable to ride into the
mine in a sitting-up position and even riding in a jeep "would be a problem."
The narrow issue presented herein is whether Mr. Christie's refusal to perform duties as a
fire boss was a protected work refusal. 5 Even assuming, arguendo, that Christie entertained a

4

The pre-employment exam report shows however that Christie had "no physical
or mental limitations related to work as an underground miner. (Exh. C-1 ).
5

At hearings Christie also appeared to allege for the first time that after he told
Saddler that he did not want to fireboss, Saddler offered to have him perform only partial fireboss
inspections but then sign the fireboss books as if he had completed the inspections - - an
unlawful procedure. This allegation had never previously been made either in his complaint filed
1324

good faith and reasonable belief that to perform the duties of ;fire bossing would have been
unsafe because of his pre-existing neck condition, for a work refusal to be protected, the miner
must first communicate his safety concerns to some representative of the operator. Secretary on
behalf ofDunmire, 4 FMSHRC at 133. In this regard, the Commission has held that "proper
communication of a perceived hazard is an integral component of a protected work refusal and
responsibility for the communication of a belief in a hazard underlying the work refusal lies with
the miner." Conatser, 11 FMSHRC at 17, citing Dillard Smith v. Reco Inc., 9 FMSHRC 992 at
995 - 96 (June 1987). ·The miner's failure to communicate his safety concern denies the operator
an opportunity to address the perceived danger and, if permitted, would have the effect of
requiring the Commission to presume that the operator would have done nothing to address the
miner's concern. Thus, a failure to meet the communication requirement may strip a work
refusal of its protection under the Act.
In this case, Mr. Christie, in his statement to investigator Savine and at hearings,
acknowledged that he did not communicate that his refusal to perform the duties of a fire boss
was because of his pre-existing neck injury. Christie testified only that he thought Saddler knew
of the history ofhis neck injury and the pain associated with that injury based on his preemployment physical exam and presumably should therefore have known the reason for his
refusal to fire boss. However, as previously noted neither his preemployment physical nor the
doctor's release on July 29, 1999, placed any restrictions on Christie's return to work as an
underground miner. Indeed, it is uncontradicted that Christie was released by a physician to
"unrestricted duty" upon his return to work only a few days earlier (Respondent's Exh. No. 2)
and that Christie himself admitted in his August 12, 1999, statement that he had been released by
the doctor on July 29, 1999, to full duty without restrictions (Exh. C-3). In addition, Saddler
testified credibly that when he asked Christie to do the firebossing Christie never mentioned any
neck injury or pain or anything about putting his papers in jeopardy.
Under the circumstances and even assuming, arguendo, that Christie retained a good faith
and reasonable belief that to work with his neck pain was a safety hazard, he cannot prevail under
a "work refusal" theory because of his failure to communicate that as a reason for his refusing to
perform the duties of a fire boss. In any event, I do not find that the work refusal in this case
based on the impairment claimed in this case is protected by the Act. Here, Christie's alleged
neck pain, caused by a non-work related vehicular accident several years before he even began
employment with Respondent,- is an idiosyncratic physical impairment not involving inherently
unsafe working conditions and practices of the mine operator. See, e.q., Paula Price v. Monterey
Coal Company, 12 FMSHRC 1505 at 1519-1520 (August 1990), (concurring opinion); Sam
Collette v. Boart Longyear Co., 17 FMSHRC 1121, 1125-26 (July 1995) (ALJ) and Perry v.
Phelps Dodge Morenci, Inc., 18 FMSHRC 643 (April 1996) (ALJ). This case does not present

herein or in the lengthy and thorough interview by the MSHA investigator. Saddler also denied
the allegation in his testimony at hearings. Under the circumstances, I do not find this new
allegation to be credible.

1325

the "appropriate circumstances" mentioned in Bjes v. Consolidation Coal Co., 6 FMSHRC 1411,
141 7 (June 1984), in which a miner may refuse to work on the basis of a perceived hazard arising
from his own physical condition.
Christie also claimed that he refused to perform fire boss duties because "Saddler would
not run the mine the way it was supposed to be run" (Tr. 126). He admits however that he did
not communicate this reason to Saddler. In light of this admission Christie likewise could not
prevail under a "work refusal" theory. Conatser, l 7 FMSHRC at 17, Dillard Smith, 9 FMSHRC
at 995-96. Since Christie admits moreover that he could not in any event perform the duties of a
fire boss because of his neck pain, this claim could not provide a good faith and reasonable belief
basis for a work refusal.
Under the circumstances, Mr. Christie has failed to sustain his burden of proving that he
was discharged in violation of Section 105(c) of the Act and accordingly his complaint must be
dismissed.

ORDER
Discrimination Complaint Docket No. PENN 2000-23-D, is hereby dismissed.

~\ ~ '
i:JaryM lick

\

Distribution: .(By Certified Mail)
Mr. Brian T. Christie, RD #1, Box 388, Worthington, PA 16262
David Hardy, Esq., Julia Shreve, Esq., Jackson & Kelly, PLLC, 1600 Laidley Tower, P.O. Box
553, Charleston, WV 25322
\mca

1326

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

November 22, 2000

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of Terry McGill,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 2000-39-D·
BIR1v1 CD 99-04

v.
Oak Grove Mine
Mine ID 01-00851

U.S. STEEL MINING COMPANY, LLC.,
Respondent

DECISIO N
Appearances: William Lawson, Esq., U.S. Department of Labor, Office of the Solicitor,
Birmingham, AL, for the Complainant;
Anthony Jeselnik, Esq., U.S. Steel Mining Company, Pittsburgh, PA, for the
Respondent.
Before:

Judge Weisberger

This case is before me based on a Complaint filed by the Secretary of Labor ("Secretary")
alleging that U.S. Steel Mining Company ("U.S. Steel") discriminated against Terry McGilJ in
violation otSec;:tion 105 of the Federal Mine Safety and Health Act of 1977 ("the Act"). A
hearing on this matter was held in Hoover, Alabama, on August 23, 2000. On October 31, 2000,
the Secretary fi led findings of fact and a post trial brief. On November 1, 2000, U.S. Steel fi led
proposed findings of fact and post hearing legal argument. 1 On November 15, 2000, U.S. Steel
filed a reply brief.

1

0n October 16, 2000, the Secretary filed a Motion Seeking Reconsideration of numerous
evidentiary ru lings made at the hearing of this matter.
At the hearing U.S. Steel had objected to introduction, by the Secretary. of various exhibits and
the objections were sustained. The basis for each of the rulings was set forth in the record of this matter,
and need not be reiterated. I have evaluated the motion fi led by the Secretary, but find there is no need to
reconsider the initial rulings set forth in the record. Accordingly, the motion to reconsider is denied.

1327

I.

The Secretary's Case

Terry McGill, who is presently a retired miner, previously worked as a roofbolter for U.S.
Steel. According to McGill, his first contact with Carl Harless, a foreman employed by U.S.
Steel, occurred in April 1999 when Harless, who was not McGill 's foreman at that time, noted
that an underground miner had taken his hat off, and had turned his light off. According to
McGill, Harless fired th.at miner. McGill confronted Harless and told him that ifhe would fire
every miner at the mine who would be found with his hat or light off, he (Harless) would be
busy, as this practice is widespread.
Subsequent to April 1999, McGill injured his knee at the mine and was off work for 13
weeks. When McGill returned on June 21, 1999, Harless had become his foreman. Sometime
thereafter, Harless told McGill and Jerry Norris, McGill's co-bolter on the section, that since he
now had two committeemen on the section, he was outnumbered, and should probably "start
wearing a tape recorder". (Tr. 45.) According to McGill, Harless"... kept trying to goad me into
something or get me to act". (Tr. 45.)
According to McGill, on July 13, 1999, the section's continuous miner was cutting a
crosscut from the No. 3 entry to the No. 2 entry. McGill testified that on his way to lunch he
passed the No. 2 entry, and saw that it had not been pinned all the way to the face. He indicated
that this entry was 20 feet wide, and that at the face along the right side of the entry, the last row
of bolts was approximately seven feet from the face. In contrast, on the left side of the entry the
last row of bolts was approximately ten feet from the face. 2
McGill went to see Luther C. Self, the miner operator, and asked him ifhe was going to
cut all the way through to entry No. 2, and Self indicated in the affirmative. McGill told Self that
if he were to cut into the No. 2 entry, he would then be cutting into an area that was not
completely pinned. Self told him that Harless had told him (Self) to cut the crosscut through to
the No. 2 entry. McGill then went to see Harless and asked him ifhe was going to cut through to
the No. 2 entry, and the latter indicated in the affirmative. McGill then testified that he told
Harless as follows: " ... you know you will be cutting into a place that is not completely pinned".
(Tr. 55.) According to McGill, Harless said that "it was his f...ing section and he would run it
like he wanted to and for us to g~t our g-d damn butts out there and eat." (Tr. 55.)
At approximately 10:30 a.m., while at the dinner hole, McGill asked MSHA Inspector
Bud Norris, who was present that day conducting an inspection, whether the law would be
violated if a cut would be taken" ... and it [was] not bolted up all the way". (Tr. 59.) According
to McGill, the inspector asked if such a cut had already been taken, and McGill indicated that it

2

0n June 11 or June 12 when McGill bolted the face of the No. 2 entry, he asked Harless why he
had not had the area "squar[ed] up" (Tr. 218) so it could be pinned properly, and Harless responded by
saying that it was his "f---ing section ... and he'll run it like he wanted to". (Tr. 219.)

1328

had not. The inspector did not say anything further to McGill.on this subject.
Harless was located one to two crosscuts away from the dinner hole during the
conversation between McGill and the inspector. According to McGill, Harless observed him
talking to the inspector. McGill indicated that Harless then entered the dinner hole, and asked the
inspector what he was inspecting, and the inspector said he was inspecting a belt. Harless then
left, and McGill continued talking to the inspector.
According to McGill, at approximately 11 :00 a.m., after he had left the dinner hole, he
met the miner crew going into the dinner hole, and asked them if they had cut through to the No.
2 entry. Self told McGill that Harless told them to get the miner out of the entry, and to stop
cutting in that area.
Thereafter, McGill went to the No. 3 entry with Norris to resume bolting, at which point
Harless told him to get some curtains from the tail track area, and to bring them back to the
section. The curtains were located approximately 180 feet from the section. McGill indicated
that the curtains which weigh approximately three pounds each, but were "bulky" (Tr. 68), are
usually transported by a miner via a scoop. He indicated that the floor of the walkway, from the
tail track to the section, sloped downhill and contained mud that was more than ankle deep and
generally consisted of "rough terrain". (Tr. 66.) McGill testified that he asked Harless if he
could use a scoop, and Harless responded as follows: "Look, I told you to walk out there and get
it. Are you violating a direct work order"? (Tr. 67.) McGill indicated that he told Harless that
he would get the curtains,3 but that" ... it may take me some time .... " (Tr. 67.) McGill took one
curtain to the section, returned to the tail, and put another curtain on his shoulder, intending to
take it to the section. Harless approached him and told him to put the curtain down and for him
and Norris to bolt the No. 3 crosscut. Harless then offered to carry the rest of the curtains·.
McGill testified that he told Harless that ifhe would carry the curtains, then he (McGill) would
file a grievance, as Harless would be performing "classified" work. According to McGill,
Harless then said to him as follows: " ... you little son of a b---h, I'm going to show you
something about what's right and what's wrong." (Tr. 73.) According to McGill, Harless was
"really cussing". (Tr. 73.) McGill told Harless that if he would continue cursing that he
(McGill) would get Hank Keaton, the mine committee chairman, to be a witness. Harless then
told him that he (McGiJl) did not need Keaton to be a witness because he (McGill) "was a f---ing
committeeman." (Tr. 74.) McGill said that Harless then began to run at him with his fist drawn,
and said that ''you not going nowhere." (Tr. 74.) McGill told Harless that he was getting Keaton
and started to walk away, at which point Harless said that he was insubordinate and "you 're a
fired son of a b---h". (Tr. 75.) Harless further told him that "the time is 11 :46 ... [y]our time
stops now." (Tr. 75.) In response, McGill told him that he was calling Mike Sumpter, a
management official, and started to go to get him. Harless then called him (McGill)
insubordinate, told him that he was fired, and that he (Harless) would get Sumpter. Harless then
got Sumpter, who arrived at the scene and asked what was going on. McGill said that he did

3

According to McGill there was about a dozen curtains to transport.

1329

nothing, and he went outside accompanied by Harless and S~pter.
Self testified that on July 13, he was told by Harless to cut the crosscut between the No. 2
and No. 3 entries. (Tr. 92.) After Self took only a 35 foot cut, Harless told him to back the miner
out, and shut it down. 4 According to Self, in normal operations the miner takes a 40 foot cut, and
that it is not the normal practice to stop a miner after only a 35 foot cut in order to fix a suction
hose. Self indicated that when he was told by Harless to remove the miner and shut it down, he
had not experienced any difficulty operating the miner, that it had been operating properly, and
that there was no indication that it was losing oil. Self conceded that a hose on the miner that is
used to siphon oil to the miner was broken. However, he opined that as the hose was not
pressurized, it did not have any effect on the operation of the miner.
After stopping the miner, Self left the area to go to the dinner hole.
Timothy Lynn Bynum, Selfs helper, testified that Harless did not tell him the reason for
having to back the miner out on July 13. He confirmed that he had not observed any problems
with the hydraulic tramming of the miner, nor did he experience difficulty raising or lowering the
cutting head. He also confirmed that the offset had not been bolted. He did not recall Harless
saying that the suction hose had to be fixed. On cross examination, he indicated, in essence, that
he was not sure who had informed Harless that they were cutting into an unpinned area, but that,
in response, Harless was not angry nor did he issue any threats.
Jerry A. Norris, a roofbolter, was McGill's partner on the bolter during the dates in issue.
He confirmed that Harless said that since he had two committeemen"... and an a--hole" (Tr. 139)
·
he needed to carry a tape recorder.
According to Norris, on July 13, McGill asked Harless ifhe was going to cut a crosscut
between the No. 2 and No. 3 entries, and Harless indicated, in the affirmative. Norris testified
that he told Harless that cutting into an unpinned area is illegal. According to Norris, Harless
said "it was his f---ing section; he'd run it any f---ing way he wanted to." (Tr. 141) and Harless
then told Norris and McGill "to eat [their] goddamn lunch" (Tr. 141).
Later on in the day, Norris was assigned to build curtain drops. He asked Harless where
the curtains were coming from, and the latter told him that McGill would bring them "if he
wasn't too f---ing crippled." (Tr. 143) Norris testified that later on, when Harless told him to get
the curtains, he used a scoop to get the curtains with Harless' knowledge.
On cross examination, Norris indicated that on July 12, the No. 2 entry had not been
completely bolted. He explained that rocks on the floor of the entry had prevented the roofbolter
from advancing further inby along the right side of the entry. As a result, the inby right side of
the entry was more than 5 feet from the last row of bolts. Norris indicated that the unbolted area

4The following day, July 14, Self cut into the No. 2 entry.
1330

was the area that would be cut from the No. 3 entry. According to Norris, at the end of the shift,
on July 12, he informed Harless that they would not be able to pin all the way to the face due to
uncut bottom.
Rex Tanner, the president of the local union, and a member of the mine committee, was
with the inspector in the dinner hole on July 13. According to Tanner, after Harless arrived at the
dinner hole he introduced himself to the inspector, and asked him what the problem was, and the
inspector explained that if a cut would be taken through to an unpinned area there would be a
violation. At that point, Harless turned and went to the face where the subject cutting was being
done.

II.

U.S. Steel's Case

Rick Nogosky, the superintendent at the site, testified that he made the decision to fire
McGill, and that he was solely responsible for the firing. He indicated that he made that decision
after the 24-48 union hearing related to the stopping ofMcGill's's time by Harless. He explained
that his decision was to "uphold" (Tr. 239) the discharge of McGill. 5

Nogosky indicated that on two separate occasions he had heard McGill say f--k you to
two supervisors.
Nogosky opined that an oil leak in a miner could occur suddenly, and would result in a
malfunction in the miner's capacity to lower or raise the cutting head.
Harless testified that on July 13, at approximately 10:00 a.m., McGill wanted to know if
he would cut from the No. 3 crosscut to the No. 2 entry, and he (Harless) indicated in the
affirmative. . McGill responded by stating that this could not be done, as the area was
unsupported. Harless testified that, in response, he told McGill that it was supported and invited
him to observe it. · McGill did not go, but instead went to the crosscut between the No. 2 and No.
3 entries, where the miner was located. Harless said that the unbolted area was in the offset inby
the end of the No 2 entry perpendicular to the crosscut between the No. 2 and No. 3 entries. He
indicated that the appropriate plan required bolting to be performed within five feet of the face.
In contrast, in the offset, the distance from the last row of bolts to the face was seven feet. He
indicated that the height from the ceiling to the floor was four feet in that area, whereas the
normal distance was six feet. He explained that in cutting through the crosscut from the No. 3
entry to the No. 2 entry, the miner would not have entered this offset area, as it was perpendicular
to the cut. He indicated that on July 15, when the cut was taken from the crosscut into the No. 2
entry, Inspector Norris was present, but he did not criticize this action, nor was it cited.

5

Nogosky testified that in deciding to fire McGill, he relied on the stories presented by Harless
and McGill at the 24-48 hearing, and also his review of their personnel files. In contrast, in his
deposition he testified that he relied on Harless' testimony, the nature of the events, and nothing else.

1331

Harless testified that the area in the No. 2 entry, in a direct line in by of where the miner
was cutting in the crosscut between the No. 2 and No. 3 entries, was bolted by 10:00 a.m. on July
13, as McGill and Norris had bolted that area on July 12. There was a conflict in Harless's
testimony regarding the time during the morning of July 13, when Self backed the miner out
from the crosscut in which he was cutting, trammed it to the No. 3 entry, and yelled at him
(Harless) that the miner had busted a hose and needed oil. Initially, Harless said that this
conversation occurred at approximately 12:00 p.m .. However, later on in his testimony, he
indicated that the time of 12:00 p.m. was not correct, but that he was sure of the following
sequence of events: that (1) after he had this conversation with Self, and after Self had backed the
miner outby from the crosscut between the No. 2 and No. 3 entries, he saw the inspector in the
dinner hole on a bench with Norris and McGill, and (2) that 30 minutes after he had the
conversation with Self, he observed and lifted eight empty cans of oil that were in close
proximity to the miner.
Harless testified that at approximately 11 :30 a.m., on July 13, after he told McGill to get
some curtains from the tail area, he approached the tail and saw McGill carrying only one curtain
under his arm. Harless said to him" ... let me get some of these for you and help you carry them
up there". {Tr. 408.) McGill responded by telling Harless that ifhe touched one piece he
(McGill) would file a grievance. Harless indicated that he was upset because McGill had been
carrying only one curtain. Harless told McGill, who had continued walking inby, to stop as he
wanted to tell him what to do for the rest of the shift. According to Harless, McGill said, f--k
you, and that he was doing what I had told him. Harless again told McGill to stop, and told him
that he needed for him to know what to do for the rest of the shift. According to Harless, he told
McGill to stop two more times and both times McGill said, in response, f--k you. Harless told
McGill that he was bordering on insubordination and McGill said get f---ed. Harless then told
McGill to stop, and intending to fire him, told him "I'm stopping your time". {Tr. 413.) Harless
next told McGill to sit down, and then he went to get Sumpter. Harless said that he reported this
incident to N<?gosky, and recommended that McGill be fired.
Harless indicated that he had not been concerned when he saw McGill and Norris with
the inspector , as people speak to inspectors all the time. In essence, he said that the only time
that he got angry was when he saw McGill carrying only one curtain.

Ill.

Discussion
A. CaseLaw

The Commission, in Braithwaite v. Tri-Star Mining, 15 FMSHRC 2460 (December
1993), reiterated the legal standards to be applied in a case where a miner has alleged that he was
subject to acts of discrimination. The Commission, Tri-Star, at 2463-2464, stated as follows:
The principles governing analysis of a discrimination case under the Mine
Act are well settled. A miner establishes a prima facie case of prohibited
1332

discrimination by proving that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-800 (October 1980), rev'd on other grounds, sub nom. Consolidation Coal
Co., v. Marshall, 663 F .2d 1211 (3rd Cir. 1981 ); Secretary on behalfofRobinette
v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
may rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by protected activity.
Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the prima facie case
in this manner, it nevertheless may defend affirmatively by proving that it also
was motivated by the miner's unprotected activity and would have taken the
adverse action in any event for the unprotected activity alone. Pasula, 2
FMSHRC at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc.
Coal Corporation, v. United Castle Coal Co., 813 F.2d 639, 642 (41h Cir. 1987).

B.

The Secretary's Prima Facie Case.
1.

Protected activities

It is not contested that on the morning of July 13, the most inby portion of the No. 2 entry
had not been cut to an equal depth across the entire width of the entry, due to a low ceiling
resulting from rock build-up on the floor. As a result, the right side of the entry was not bolted
within five feet of the face. Similarly, U.S. Steel did not rebutt or contradict McGill's testimony
that on July 13 he had communicated both to Harless, his immediate supervisor, and MSHA
Inspector Norris, his concern that if Self would complete the crosscut between the No. 3 and No.
2 entries and continue into the No. 2 entry, he would then be cutting into an unbolted area.
Section 105(c) sets forth the following language regarding activities that are protected
under the Act: "[making] a complaint notifying ... the operator's agent ... of an alleged danger or
safety violation in a coal ... mine .... " The Legislative History of the Act manifests Congress'
intent that Section 105(c) be given a broad construction. S. Rep. No. 95-181, 95ih Cong., l51
Sess., at 35 & 36 (1977) ["S. Rep."], reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95 1h Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 623 (1978) ["Leg. Hist."] cited with approval in Pasula, supra at 2791 2792) Thus, broadly construing Section 105(c), I find that McGill's communications of safety
concerns to Inspector Norris and to Harless are protected under the Act. Accordingly, I find that
it has been established that on July 13, McGill did engage in protected activities.

2.
Adverse action.
The record unequivocally establishes that on July 13 Harless, after a confrontation with
McGill, stopped his (McGill's) time, and intended to fire him permanently. Harless' action in
stopping McGill's time led directly to a 24-48 hearing, which was a union mandated first step in
the grievance disciplinary process. Further, according to McGill, and not subsequently
1333

contradicted by Harless, the latter had told him, at the confrontation on July 13, that he was
"fired".6 Thus I find that it has been established that U.S. Steel took action adverse to McGill.

3.

The Adverse Action Was Motivated "in Any Part" by McGill's
Protected Activities.

Harless, who took the action adverse to McGill on July 13, testified, in essence, that he
had not gotten angry when McGill told him, on the morning of July 13, not to cut into the No. 2
entry because it was unsupported, and he was not concerned when he saw McGill sitting on a
bench with the inspector in the dinner hole, because people speak to inspectors all the time. He
explained, in essence, that, in intending to fire McGill and in stopping his time, he was motivated
by McGill's "insubordination", i.e., refusing to stop when ordered by him (Harless), and cursing
at him (Harless). Also, in essence, Harless indicated that on July 13, he got angry only when he
saw McGill carrying one curtain.
However, I take cognizance of the following uncontested facts: that at approximately
10:30 a.m., on July 13, McGill told Harless that ifhe would cut from the entry No. 3 through to
entry, No. 2 entry, he would be cutting into a place that was not completely bolted; that shortly
thereafter McGill asked Inspector Norris, at the dinner hole, whether there would be a violation if
a miner would cut into a place that had not been completely bolted; that Harless observed McGill
sitting next to the inspector on a bench in the dinner hole; and that at 11 :26 a.m. that same day,
Harless, intending to fire McGill, permanently stopped his time. Also, I note that Harless did not
specifically rebut McGill's testimony that on July 13, when he told him that he would be cutting
into a place not completely bolted, Harless said it was his f---ing section and he would run it like
he wanted to. Thus, primarily based upon the coincidence in time between (I) McGill's'
protected verbal communication to Harless, which was accompanied by some evidence of
animus on the part of Harless, followed shortly thereafter by Harless observing McGill talking to
the inspector; and (2) Harless' firing ofMcGill less than an hour later, I find that the Secretary
has established that Harless' adverse action taken against McGill was motivated "in any part" by
McGill's protected-activities.

IV.

U.S. Steel's Defense

I take cognizance, as discussed above, of the existence of some evidence of some degree
of animus by Harless towards McGill regarding the latter's protected activities under the Act.
However, it is significant to note that Bynum, Selfs helper on the miner, testified that when it
was brought to Harless' attention that they would be cutting into an unpinned area, Harless was
not angry and did not issue any threats. Indeed, the record does not contain any evidence of any
animus by Harless, or adverse action taken by him directed against either Bynum or Self, the
miner operator. In the same fashion Norris, who was McGill's partner on the bolter, testified that
6

Subsequently, Rick Nogosky, the superintendent at the mine made a decision after the
24-48 union hearing to uphold Harless discharge of McGill.
1334

he told Harless that"... you're cutting into an unpinned place, _such as Terry also said. And this is
illegal," and Harless stated that" ... it was his f---ing section; he'd run it any f---ing way he
wanted to." (Tr. 141.) Later, Harless observed both McGill and Norris sitting with the inspector
in the dinner hole. However, significantly, there is no evidence in the record that Harless
directed any animus toward Norris or took any adverse action against him as a consequence of
his having heard Norris express safety concerns, and having observed him talking to the
inspector.
Further, most significantly, although Harless' action adverse to McGill shortly followed
McGill's protected activities, i.e., voicing safety concerns to Harless and the inspector, it was
McGill's actions that were not protected under the Act, i.e., threatening to file a union grievance,
that were immediately followed by Harless' stopping his time. Additionally, according to
McGill, Harless' cursing him and telling him that "you 're a fired son of a b---h, ... your time
stops now", immediately followed McGill's statement to Harless that he was going to get the
mine committee chairman, Hank Keaton. It is not for this forum to decide whether, in the light
of this sequence of events and actions, McGill has any redress under the National Labor
Relations Act. However, considering (1) this scenario and sequence of events; (2) testimony of
Norris and McGill regarding Harless' previous statements to them expressing displeasure with
having union members on his section and; (3) the unrebutted testimony of Harless, whose
demeanor I observed and found to be truthful in his testimony on this point, that McGill refused
to stop walking away when ordered to do so by Harless, I find that although Harless' adverse
action taken against McGill on July 13 was motivated in any part by McGill's protected
activities, Harless would have taken the adverse action against McGill, based on McGill's
actions that are not within the perview of those protected by the Act. Accordingly, I find that
U.S. Steel has prevailed in its affirmative defense. Within the above framework of evidence, I
conclude that the Secretary has not established that U.S. Steel discriminated against McGill in
violation of Section 105(c) of the Act.

1335

ORDER

It is ORDERED that the Complaint filed in this case be DISMISSED, and that this case
be DISMISSED.

~eis~
Administrative Law Judge

Distribution: (Certified Mail)
William Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, 150 Chambers Bldg.,
100 Centerview Drive, Birmingham, AL 35216
Anthony Jeselnik, Esq., U.S. Steel Mining Company, Law Department, 600 Grant Street,
Pittsburgh, PA 15219-2749
/set

1336

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

November 24, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CNIL PENALTY PROCEEDING
Docket No. WEST 2000-245-M
A.C. No. 10-00648-05511

v.

Rocky Mountain Quartzite Quarry

NORTHERN STONE SUPPLY, INC.,
Respondent

DECISION
Appearances:

Deia Wallace-Peters, Esq., Office of the Solicitor, U.S. Department of
Labor, Seattle, Washington, for Petitioner;
Gary Mullard, President, and Garth Greenwell, Quarry Manager, Northern
Stone Supply, Inc., Oakley, Idaho, for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against
Northern Stone Supply, Inc. ("Northern Stone"), pursuant to sections 105 and 110 of the ~ederal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). A hearing was
held in Twin FaJls, Idaho. The parties presented testimony and documentary evidence and made
closing arguments.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Rocky Mountain Quartzite Quarry is a dimension stone quarry operated by Northern
Stone in Cassia County, Idaho .. It is a rather small quarry that operates on a seasonal basis. As a
consequence, it is usually inspected by MSHA only once a year.
On July 1, 1999, MSHA Inspector Curtis Chitwood conducted a health inspection at the
quarry. As part of this inspection, be sampled five miners for exposure to silica-bearing dust. He
used the type of sampling devices that MSHA typically uses and took the sample over a single
six- hour shift. These devices consist of a "constant flow sampling pump" that is designed to
take an air sample in each miner's breathing zone. These devices are calibrated at a flow rate of
1.7 liters per minute. The five respirable samples that were obtained were sent to MSHA's
laboratory in Pittsburgh, Pennsylvania, along with a control sample. As a result of this sampling,
Inspector Chitwood determined that two miners were overexposed to silica-bearing dust and he
1337

issued two citations under section 104(a) of the Mine Act. He issued a third citation alleging that
Northern Stone was not conducting dust surveys at the quarry.

A. Citation No. 7977666
Citation No. 7977666 alleges a violation of 30 C.F.R. § 56.5001(a)/.5005. The condition
or practice section of the citation provides, in part:
The miner (Florentino Castillo) assigned to work in the quarry area
was exposed to a shift-weighted average of .33 mg/cubic meter
(TWA) of respirable silica-bearing dust on 7/ 1/99. This exceeded
the permissible exposure limit of .15 mg/cubic meter (TLV) times
the sampling factor (1.2 for respirable free silica dust sampling and
analysis) .. 15 times 1.2 (EF) equals .18 . .33 is 1.87 times .18
(TLV times EF). A fit tested respirator was not being used and a
respiratory protection program meeting the requirements of ANSI
288.2-1969 was not in place. All feasible engineering controls
were not in use to control employee's dust exposure....
In the citation, Inspector Chitwood determined that it was reasonably likely that the
violation would lead to a serious illness; that the violation was of a significant and substantial
nature ("S&S"); and that Northern Stone's negligence was moderate. The Secretary proposes a
penalty of $655 for this violation. The safety standard provides, in part, that "exposure to
airborne contaminates shall not exceed, on the basis of a time weighted average, the threshold
limit values adopted by the American Conference of Governmental Industrial Hygienists...."
Section 56.5005 provides, in part, that when "engineering control measures have not been
developed or when necessary by the nature of the work involved ... , employees may work for
reasonable p€riods of time in concentrations of airborne contaminates exceeding permissible
levels if they are protected by appropriate respiratory protective equipment."
Northern Stone contested this citation for a number of reasons. First, Northern Stone
states that MSHA conducted silica dust surveys in the past and no over-exposures were detected.
As a consequence, it believed that it was in compliance with MSHA' s health standards. Second,
Northern Stone believed that MSHA was responsible for conducting these respirable dust
surveys and it relied on MSHA's surveys to remain in compliance. Third, Northern Stone
questions the accuracy of the allegations in the citation because, after the citation was issued, it
arranged for its own respirable dust survey and no over-exposures were found.
I find that the Secretary established a violation. The Commission and the courts have
uniformly held that mine operators are strictly liable for violations of safety and health standards.
See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (101h Cir. 1989). "[W]hen a violation of a
mandatory safety standard occurs in a mine, the operator is automatically assessed a civil

1338

penalty." Id. at 1197. In addition, the Secretary is not required to prove that a violation creates a
hazard, unless the safety standard so provides.
The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety [or health] hazard in
order for a valid citation to issue. If conditions existed which
violated the regulations, citations [are] proper.

Allied Products, Inc., 666 F.2d 890, 892-93 (5 1h Cir. 1982)(footnote omitted). The negligence of
the operator and the degree of the hazard created by the violation are taken into consideration in
assessing a civil penalty under section 1 lO(i). 30 U.S.C. § 820(i).
For purposes of this case, I find that MSHA may issue a valid citation for an
overexposure to silica-bearing dust based on a single-shift silica dust survey. I reach this
conclusion based on the Commission's decision in Asarco, Inc., 17 FMSHRC 1 (1995), and
former Commission Judge Maurer's subsequent analysis in Asarco, Inc., 19 FMSHRC 1097,
1130-1136 (1997). Based on the evidence presented, Judge Maurer concluded that "MSHA's use
of single-shift sampling is a reasonable means of ascertaining, to the requisite degree of accuracy,
whether the enforcement concentration level standard in Section 57.500l(a) has been exceeded."
Id. at 1136.
The Secretary presented evidence as to the procedures used by Inspector Chitwood to take
the sample and the protocol used to analyze the sample at MSHA's Pittsburgh laboratory. Jaime
Alvarez, a safety and health specialist in MSHA's Western District, testified very generally about
MSHA's sampling procedures. (Tr. 6-20). Inspector Chitwood testified about the procedures he
used to sample at the quarry. (Tr. 20-59). Cathy Bums, the quality assurance coordinator at
MSHA's laboratory, testified about the procedures used to analyze respirable dust samples at the
laboratory. (Tr. 75-101). James Polizzano, an x-ray analyst at the MSHA l~boratory, testified as
to the procedures he used when analyzing the particular respirable dust sample at issue. (Tr. 102121 ). Northern Stone did not present any evidence to rebut this evidence. Consequently, I credit
the testimony of these witnesses. I find that MSHA followed correct procedures when sampling
for respirable dust at the quarry and when analyzing the sample at its laboratory. Accordingly, I
find that the citation accurately reflects the amount of silica dust to which Mr. Castillo was
exposed during the particular s_ix-hour shift that was sampled. The shift-weighted average of .33
mg/cubic meter ofrespirable silica-bearing dust detected by MSHA is an "estimate" of that
"individual's exposure concentration level" on that date. Id.
The Commission has held that, in certain instances, there is a presumption that the
violation of a respirable dust standard is S&S. Consolidation Coal Co., 8 FMSHRC 890 (June
1986), ajf'd sub nom. Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071 (D.C. Cir. 1987); U.S.
Steel Mining Co., Inc., 8 FMSHRC 1274 (September 1986); Twentymile Coal Co., 15 FMSHRC
941 (June 1993). In those cases, the mine operator violated sections 30 C.F.R. § 70.100 or
§70.101, which apply to coal mines.

1339

An S&S violation is described in section 104(d)( 1) of the Mine Act as a violation "of
such nature as could significantly and substantially contribute tO the cause and effect of a ... 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." National Gypsum Co., 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out a four-part test for analyzing S&S issues. Evaluation of the criteria is made
assuming "continued normal mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984). The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgu.lf, Inc., 10 FMSHRC 498 (April 1988).

Under the Mathies test, the Secretary must establish: (1) the underlying violation of the
health standard; (2) a discrete health hazard, a measure of danger to health, contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in an illness; and
(4) a reasonable likelihood that the illness in question will be of a reasonably serious nature. The
Secretary is not required to show that it is more probable than not that an illness will result from
the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).
In the cases involving coal mines, cited above, the Commission held that because an
analysis of the four elements of the S&S test would be essentially the same in each instance in
which the Secretary proves a violation of 30 C.F.R. § 70.100 or §70.101, proof of a violation
gives rise to a presumption that the violation is S&S. See 8 FMSHRC at 1281. It based this
presumption, in large measure, on the legislative history of the Mine Act. The Commission
noted that "prevention of pneumoconiosis and other occupational illnesses is a fundamental
purpose underlying the Mine Act." 8 FMSHRC at 895.
For reasons set forth below, I find that this presumption should not be applied under the
particular facts of this case. First, the Secretary made no attempt to introduce any evidence
concerning the gravity of this violation, the reasonable likelihood of an illness, or whether any
illness is likely to he serious. Indeed, counsel for the Secretary ignored the S&S and gravity
issues both in the presentation of the evidence and in her closing arguments. The only evidence
on these issues is the citation itself. The Secretary cannot rely on this presumption without at
least attempting to invoke it in some way. The fact that the Commission created this
presumption does not obviate th~ Secretary's responsibility to establish her case.
In addition, this case involves facts that were not present in the Commission's decisions.
The Rocky Mountain Quartzite Quarry operates on a seasonal basis with short-term workers.
The quarry only mines dimension stone about six months a year. Mr. Castillo was a stone cutter
at an area of the quarry known as Silver Peak. When Inspector Chitwood conducted the health
survey, Mr. Castillo agreed to cut stone for the entire shift. Normally, stone cutters do not cut
stone straight through their shift. (Tr. 25-27). At Inspector Chitwood's urging, Mr. Castillo
agreed to work through lunch without taking any breaks or performing any tasks during his shift
other than cutting stone. Id. Thus, his exposure to silica dust during this shift may not have been

1340

representative of his exposure on a typical work day. In addition, it is not clear from the record
whether Mr. Castillo returns every spring to work at the quarry or whether different people work
at the quarry each season. Mr. Castillo returns to his home outside of Idaho when he is not
working at the quarry. Given these circumstances, I believe that the application of the
presumption would be inappropriate.
I find that the Secretary established the first two elements of the Commission's four part
S&S test. A violation occurred that contributed to a discrete health hazard. The Secretary did
not establish the third element of the Mathies formula: a reasonable likelihood that the hazard
contributed to will result in an illness. First, other than the citation itself, the Secretary did not
offer any evidence on this element. Second, as stated above, the sample taken by the inspector
may not reflect Mr. Castillo's exposure over a period of time. The S&S criteria are to be
evaluated assuming continued normal mining operations. It is not at all clear that Mr. Castillo
would have been exposed to a shift-weighted average of .33 mg/cubic meter of silica dust during
his normal work days. Accordingly, I find that the Secretary failed to establish that the violation
was S&S.
I am required to assess a civil penalty for all violations of safety and health standards
taking into consideration the six penalty criteria set forth in section 11 O(i) of the Mine Act. One
criteria is the gravity of the violation. As stated above, the Secretary did not offer evidence on
this criteria except the citation. Based on the evidence ofrecord, I find that the violation was
only slightly serious. I take official notice of the fact that, if a miner is overexposed to silicabearing dust over a period of time, he can develop silicosis, which is a debilitating disease. But I
also take into consideration the fact that it is not clear in this case that Mr. Castillo had been
actually exposed to the level of silica dust measured by the inspector over a significant period of
time or that he would be so exposed in the future. His work routine was altered when the· sample
was taken. The Secretary is not usually required to establish that the cited exposure level would
continue, but the facts in this particular case warrant such consideration. The Secretary bears the
burden of proof on the gravity criterion and I have taken into consideration the fact that this issue
was not raised by counsel for the Secretary at the hearing.
I also find that Northern Stone's negligence was low. Mr. Greenwell testified that MSHA
had taken silica dust samples at the mine and no citations were issued. He believed that the
quarry was in compliance with the silica dust standard and that MSHA was responsible for taking
samples to ensure compliance. He was very concerned that the sample showed an overexposure.
He questioned the accuracy of the sample because he believed that miners were not being
overexposed, but he also wanted to take steps to ensure that miners worked in a healthy
environment. After the citations were issued, Northern Stone purchased a sampling device and
has sought MSHA's assistance in developing a sampling program. It is important to note that the
Secretary did not introduce any evidence on the negligence criterion.

1341

B. Citation No. 7977667
Citation No. 7977667 alleged another violation of 30-C.F.R. § 56.5001 (a)/.5005. The
condition or practice section stated that a miner was exposed to a shift-weighted average of .17
mg/cubic meter ofrespirable silica-bearing dust on July 1, 1999, and that the exposure limit,
taking into consideration the error factor, was .25 mg/cubic meter. When I pointed out that this
citation does not set out a violation because the exposure level was less than the exposure limit,
the Secretary agreed to vacate the citation. (Tr. 61-64, 133-34 ). It appears that the inspector
made an error when entering the data received from MSHA's laboratory.

C. Citation No. 7977668
Citation No. 7977668 alleges a violation of30 C.F.R. § 56.5002. The condition or
practice section of the citation provides, in part:
Two (2) stone cutters were overexposed to respirable silica-bearing
dust at the dimensional stone quarry site on 07-01-1999. The mine
operator had not conducted dust surveys as frequently as necessary
to determine the adequacy of the engineering control measures at
the dimensional stone quarry site, to ensure a safe work
environment for the miner.
Inspector Chitwood determined that it was reasonably likely that the violation would lead
to a serious illness; that the violation was S&S; and that Northern Stone's negligence was
moderate. The Secretary proposes a penalty of$655 for this violation. The safety standard
provides that "[d]ust, gas, mist, and fume surveys shall be conducted as frequently as necessary
to determine the adequacy of control measures.
Northern Stone contends that it did not know how frequently such surveys were required
under the standard: Northern Stone attempted to get clarification from MSHA on several
occasions after the citations were issued. As stated above, Northern Stone incorrectly believed
that MSHA would take all of the required respirable dust surveys.
I find that the Secretary established a violation because Northern Stone had not conducted
any dust surveys prior to the issuance of this citation. Thus, the issue of how frequently such
surveys must be taken is irrelevant for this citation. I note that Northern Stone contested the
citations in this case primarily because it felt that MSHA was not providing sufficient assistance
in helping it achieve compliance with its health standards. After the citations were issued,
Northern Stone sought MSHA's assistance in developing a plan to solve respirable dust problems
at its quarry and also sought help in learning how to use the sampling equipment it had
purchased. Northern Stone's own silica-dust sampling results indicated that miners were not
being overexposed. Messrs. Greenwell and Mullard expressed their frustration at the hearing and
continued to seek MSHA's advice. They admitted that they did not sample for silica dust prior

1342

to July 1999, but they were perplexed by MSHA's failure to follow through on its health
inspection by answering their rather basic questions about the regulatory requirements.
Although the Secretary did not introduce any evidence on the gravity and negligence
criteria at the hearing, I find that the violation was serious and that Northern Stone's negligence
was moderate. The citation itself supports these findings. If a mine operator does not conduct
respirable dust surveys, it cannot determine whether its employees are being overexposed to
silica dust. Although MSHA conducts health surveys at mines from time to time, the standard
requires mine operators to monitor the health conditions at the mine. It cannot rely on MSHA's
testing alone. Since the language of the standard clearly places this responsibility on the mine
operator, I find that Northern Stone was moderately negligent.
I could not help but notice that immediately after the close of the record in this case,
while the parties were still in the courtroom, Mr. Alvarez ofMSHA's Metal/Nonmetal Western
District Office and Messrs. Greenwell and Mullard began generally discussing approaches that
Northern Stone could take with respect to compliance with the silica dust standard. It appeared
to me that Mr. Alvarez, on behalf of MSHA, pledged to provide assistance to Northern Stone in
this regard. It is my hope that the parties follow through on this discussion so that Northern
Stone can provide a healthy environment for its employees. Discussion and assistance will help
improve health conditions at this quarry more than further litigation will ever achieve.

II. APPROPRIATE CIVIL PENALTIES
Section l lO(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. Northern Stone was issued 13 citations during the two years prior to
this inspection. None of these citations involved silica dust. Northern Stone is a small operator
and the quarry worked 9,980 man-hours. The violations were abated in good faith. Northern
Stone appeared eager to take steps to prevent future violations of the cited standards. The
penalties assessed in this decision will not have an adverse effect on Northern Stone's ability to
continue in business. My gravity and negligence findings are set forth above. I significantly
reduced the penalties, in part, because Northern Stone is small and it demonstrated good faith.
Based on the penalty criteria, I find that the penalties set forth below are appropriate.

III. ORDER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.

30 C.F.R. §

Penalty

7977666
7977667
7977668

56.5001 (a)/.5005
56.5001 (a)/.5005
56.5002

$80.00
Vacated
120.00

1343

Accordingly, Citation Nos. 7977666 and 7977668 are AFFIRMED as modified above;
Citation No. 7977667 is VACATED; and Northern Stone Supply, Inc., is ORDERED TO PAY
the Secretary of Labor the sum of $200.00 within 40 days of the date of this decision. Upon
payment of the penalty, this proceeding is DISMISSED.

anning
Administrative Law Judge

Distribution:
Deia Wallace-Peters, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third
Avenue, Suite 945, Seattle, WA. 98101-3212 (Certified Mail)
Garth Greenwell, Quarry Manager, Northern Stone Supply, Inc., P.O. Box 249, Oakley, ID
83346 (Certified Mail)

RWM

1344

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

November 29, 2000
FREEMAN UNITED COAL COMPANY,

CONTEST PROCEEDINGS
Docket No. LAKE 2000-102-R
Citation No. 7584882; 6/22/2000

Contestant

Docket No. LAKE 2000-103-R
Citation No. 7584883; 6/22/2000

V.

Docket No. LAKE 2000-104-R
Citation No. 7584884; 6/22/2000
Docket No. LAKE 2000-105-R
Citation No. 7584885; 6/22/2000

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

Crown II Mine
Mine ID 11-02236

SUMMARY DECISION
These cases are before me upon the Contests filed by Freeman United Coal Company
(Freeman United) pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801, et seq., the "Act," to challenge four citations issued by the Secretary of Labor.
On July 12, 2000, Freeman United filed a motion for summary decision. The Secretary
responded on July 31, 2000, and filed her own cross motion for summary decision. Oral
argument was held·on September 15, 2000, and the parties thereafter filed supplemental written
argument.
Under Commission Rule 67, 29 C.F.R. § 2700.67, a motion for summary decision shall
be granted only if the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) that there is no genuine issue as to any
material facts; and (2) that the moving party is entitled to summary decision as a matter of law.
The citations at bar all allege violations of the standard at 30 C.F.R. § 75.1909(a)(l).
That standard provides as follows:
(a) Non permissible diesel-powered equipment, except for the special
category of equipment under § 75 .1908(d), must be equipped with the following
features:

1345

(1) An engine approved under subpart E of part 7 of this title equipped
with an air filter sized in accordance with the engine manufacturer's
recommendations, and an air filter service indicator set in accordance with the
engine manufacturer's recommendations.
More particularly Citation No. 7584882, charges as follows:
The Isuzu QD60 diesel engine used in the Number 04003 Diesel Gator
was not being maintained in accordance with Subpart E'of30 C.F.R. Part 7. A
legible and permanent approval marking as required by 30 C.F.R. Part 7.90 was
installed but had not been supplied by the engine manufacturer.
Citations No. 7584883, 7584884 and 7584885, allege the same violation but with respect
to Isuzu 4BD1PW diesel engine used in the 04031 Alpha personnel carrier, Isuzu 4BD1PW
diesel engine used in the 04032 Alpha personnel carrier and Isuzu QD60 diesel engine used in
the 03107 Taylor Atkinson personnel carrier, respectively.
There is no dispute in this case that the cited diesel powered equipment was non
permissible within the meaning of the cited standard and that therefore the cited diesel engines
must be approved in accordance with Subpart E of part 7. Under Subpart E at Section 7.90
"[e]ach approved diesel engine shall be identified by a legible and permanent approval marking
inscribed with the assigned MSHA approval number and securely attached to the diesel engine."
At oral argument on September 15, 2000, the Secretary clarified that she is alleging a
violation in the citations at bar only on the basis of her claim that the approval markings required
by Section 7.90 must be "supplied by the engine manufacturer." (Tr. 5-6). 1 It is undisputed that
the approval markings utilized by Freeman United on the cited equipment were supplied by
Freeman United itself and not by the manufacturer. Accordingly there is no dispute regarding the
material facts.
In effect however the Secretary seeks to have this Commission rewrite the cited standard
to read as follows: "[e]ach approved diesel engine shall be identified by a legible and permanent
approval marking supplied by the engine manufacturer and inscribed with the assigned MSHA
approval number and securely attached to the diesel engine."

Although the Secretary also claims, in her motion and at oral argument, that the
cited engines were also not otherwise "approved" - - a claim that is disputed by the operator - that is accordingly not an issue now before me in the instant cases.

1346

The Secretary argues in support of this regulatory rewrite on the premise that the
regulation's meaning is not plain and that therefore deference should be given to her
interpretation citing Martin v. OSHRC, 499 U.S. 144, 148-149 .(1991); Udall v. Tallman, 380
U.S. 1, 16-17 (1965); Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460-461 (D.C. Cir.
1994); Secretary ofLabor v. Cannelton Industries, Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989);
and Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414-1415 (l01h Cir. 1984)
I find however that the premise for Secretary's deference argument, i.e., that the meaning of the
regulation is not plain, does not exist. When the meaning of a statutory or regulatory provision is
plain, effect must be gi~en to its language. Chevron US.A. Inc. v N.R.D.C., 467 U.S. 837, 84345 (1984).
The Secretary also argues that a statute or regulation that is intended to protect the health
and safety of individuals, such as the regulation at issue herein, must be interpreted in a broad
manner to actually achieve that goal citing Cannelton Industries, 867 F. 2d at 1435. Donovan v.
Stafford Const. Co., 732 F. 2d 954, 959-960 (D.C. Cir. 1984); and Brennan v. OSHRC, 491 F. 2d
1340, 1344 (2"d Cir. 1974). This rule of construction is not without limit however and is not a
license to rewrite a clearly worded regulation whose plain meaning cannot reasonably be
disputed.
Therefore, considering the plain language of Section 7.90, there is nothing to preclude the
use on the cited diesel engines of approval markings supplied by Freeman United itself.
Accordingly there are no violations as alleged in the citations at bar. Under the circumstances,
Freeman United's Motion for Summary Decision must be granted and the Secretary's Cross
Motion for Summary Decision must be denied.

ORDER
Citation Nos. 7584882, 7584883, 7584884 and 7584885 are hereby vacated.

t" \v'vvv~

.
Gary M

Adminis

lie~"

ra~ve La~ Judge

Distribution:
Timothy M. Biddle, Esq., Edward Green, Esq., Crowell & Moring, LLP, 1001 Pennsylvania
Ave., N.W., Washington, D.C. 20004 (Certified Mail)
Sheila Cronan, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Suite
400, Arlington, VA 22203 (Certified Mail)
\mca

1347

1348

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

November 9, 2000
CONTEST PROCEEDING

PERFORMANCE COAL COMPANY,
Contestant

Docket No. WEVA 99-40-R
Citation No. 4204336; 12/17/98

V.

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

Upper Big Branch Mine - South

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 99-93
A.C. No. 46-08436-03564
Upper Big Branch Mine-South

PERFORMANCE COAL COMPANY,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. WEV A 2000-28
A.C. No. 46-08436-0350 A
Upper Big Branch Mine-South

MARK ALLAMAN, Employed by,
PERFORMANCE COAL COMPANY,
Respondent
ORDER GRANTING IN PART MOTION TO COMPEL

These consolidated contest and civil penalty proceedings are scheduled for hearing on
December 19, 2000, in Charleston, West Virginia. Before me for consideration are the
respondents' motion to compel the disclosure of documents and the Secretary's opposition
to the respondents' motion. Specifically, the respondents seek any statements provided to the
Mine Safety and Health Administration (MSHA) by Johnny Williams and Rick Lilly; all
documents concerning how and why the subject citation was specially assessed and the
calculations related thereto; and all documents in MSHA's investigative file, with the exception
of MSHA's investigative recommendations and any information directly covered by the
informant or miner witness privilege.
1349

Consistent with my request during the course of an October 18, 2000, telephone
conference with the parties, on November 7, 2000, the Secretary furnished the following
documents for in camera review:
(1) A signed statement of Johnny R. Williams obtained by MSHA on March 30,
1999.

(2) A March 31, 1999, memorandum of interview with Randell L. Lilly prepared
by MSHA Special Investigator James G. Jones.
(3) A report of an MSHA Health and Safety Conference attended by Performance
Coal Company representatives on January 20, 1999.

(4) An MSHA Proposed Assessment Worksheet.
(5) A Base Penalty Calculation for Special Assessment dated February 2, 1999.
A. The signed statement of Johnny R. Williams
The Secretary argues that the Williams statement is protected by the work product
privilege. The respondents asserts the work product privilege is inapplicable because, despite the
fact that the statement was obtained after the January 19, 1999, filing of Performance Coal
Company's contest in Docket No. WEVA 99-40-R, it was obtained prior to the initiation of the
captioned 1 lO(c) proceeding in Docket No. WEVA 2000-28.
The work product privilege has been codified in Rule 26(b)(3) of the Federal Rules of
Civil Procedure. In ASARCO, Inc., 12 FMSHRC 2548 (December 1990), the Commission
discussed the work product privilege, stating:
In order to be protected by this immunity under [Rule] 26(b)(3), the material
sought in discovery must be:
1. documents and tangible things;
2. prepared in anticipation oflitigation or for trial; and
3. by or for another party or by or for that party's representative.
It is not required that the document be prepared by or for an attorney. If materials
meet the tests set forth above, they are subject to discovery 'only upon a showing
that the party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without undue hardship

1350

to obtain the substantial equivalent of the materials by other means.' If the court
orders that the materials be produced because the required showing has been
made, the court is then required to 'protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.'

Id. at 2558 (citations omitted).
The burden of satisfying the three-part test is on the party seeking to invoke the
work product privilege. Here, the Williams statement is a tangible document obtained by the
Secretary in anticipation of litigation because it was obtained after the contest filed by
Performance Coal Company. However, the signed statement was not "prepared" by the
Secretary. The signed statement is entitled to the same protection from disclosure that a treatise
obtained from the library by Secretary's counsel would be entitled to - - none. The Secretary
cannot prevent disclosure of Williams' signed statement by asserting it is really the investigator's
work product because it is only Williams' acknowledgment of the accuracy of what the MSHA
investigator heard the Williams say. Since the signed statement constitutes a document
"prepared" by Williams rather than the Secretary, the work product privilege does not apply.
Consequently, the respondents' motion to compel the signed Williams' statement shall be
granted.
I note parenthetically, even if Williams' signed statement was protected under the
work product privilege, the analysis would shift to whether the respondents have a substantial
need for the statement, and whether depriving the respondent of these documents would
constitute an undue hardship. P. & B. Marina, Ltd. Partnership v. Logrande. 136. F.R.D. 50, 57
(E.D.N.Y. 1991 ), ajf'd, 983 F.2d 1047 (2d Cir. 1992). Whi le assertions that protected material is
needed for general purposes of impeachment may not be sufficient to overcome the work product
privilege, here the statement provided by Williams, the victim of a November 24, 1998, roof fall
accident, is uniqll'e in that the statement evidences Williams' recollections less than six months
after the accident. Consolidation Coal Company, 19 FMSHRC 1239, 1243-44 (July 1997).
Depriving the respondents' counsel of access to recollections recorded relatively soon after the
accident wou ld result in a significant hardship. Thus, even if the Williams statement was
protected, the respondents have a compelling need to examine the contents of Williams'
statement in preparation for trial.
Finally, Williams will be called by the Secretary as a witness in these proceedings. Even
if a witness's signed statement is protected by privilege, such statements are routinely disclosed
at trial in a criminal proceeding. See Jencks v. United States, 353 U.S. 657. 667-69 ( 1957); 18
U.S.C. § 3500 (Jencks Act). In this regard, the Commission has noted, in National Labor
Relations Board (NLRB) administrative proceedings, the NLRB itself provides at trial, for cross
examination purposes, a witness's prior statements relative to the subject matter of his testimony.
See Secretary of Labor olblo Donald L. Gregory, et al v. Thunder Basin Coal Company,

1351

15 FMSHRC 2228, 2237 (November 1993), referring to 29 C.F.R. § 102. l 18(b)-(d) (NLRB
"Jencks" procedure). Thus, the privilege issue notwithstanding, the Secretary would be
compelled to produce Williams' statement at trial.

B. MSHA investigator Jones' March 31. 1999. memorandum
of Lilly interview
With respect to the work product question, the Secretary's memorandum containing
Jones' recollections of his March 31, 1999, interview with Randell L. Lilly is in stark contrast to
the Williams statement. Unlike the Williams statement, the Jones memorandum was indeed
prepared on behalf of the Secretary in contemplation of litigation. It contains the recollections of
Jones concerning what Jones was told by Lilly. Accordingly, the Jones memorandum is
protected by the work product privilege.
C. The January 20. 1999. MSHA Health and Safety Conference Report
The Secretary seeks protection of the January 20, 1999, MSHA Health and Safety
Conference Report on the basis of the work product and deliberative process privileges. The
conference was attended by officials of Performance Coal Company. The dispositive question
concerning the applicability of the work product privilege is whether the document was
"prepared in anticipation oflitigation or for trial." Whether these documents are privileged
because they were prepared with litigation in mind must be based on the nature of the documents
and the factual situation in each particular case. ASARCO, 12 FMSHRC at 2558. If the
documents can fairly be said to have been prepared because of the prospect of litigation, then
the documents are covered by the privilege. Id. [citing Wright & Miller, Federal Practice and
Procedure§ 2024 p.198-99 ( 1970)]. If, on the other hand, litigation is contemplated but the
document was prepared in the ordinary course of business rather than for the purposes of
litigation, it.is not protected. Id. In addition, particular litigation must be contemplated at the
time the document is prepared in order for the document to be protected. Id.
The question is whether MSHA reports of a safety and health conferences are routinely
prepared in the ordinary course of business without regard to whether litigation is contemplated.
In addressing this question, it is necessary to analyze MSHA's procedures for health and safety
conferences contained in 30 C.F.R. § 100.6. Operators that elect not to contest citations may
decide not to request a safety and health conference. Safety and health conferences are only
conducted, subject to MSHA's approval, upon an operator's request. 30 C.F.R. §§ 100.6(b) and
(c). Such conferences are the means by which operators may submit mitigating information
including facts that operators believe warrant a finding that no violation occurred. 30 C.F.R.
§ 100.6(e). Citations that are not vacated are referred by the safety and health conference official
to the Office of Assessments with the inspector's evaluation as a basis for determining the
appropriate amount of civil penalty to be assessed. 30 C.F.R. §§ 100.6(f) and (g).

1352

Thus, generally, only contested citations are the subjects of safety and health conferences.
Moreover, the MSHA official conducting the conference uses the information submitted by the
operator as a basis for the referral to the Office of Assessments. Upon receipt of a notice of
proposed penalty issued by the Office of Assessments, the operator has 30 days to pay or contest
the proposed penalty. 30 C.F.R. § 100.7(b). In essence, the safety and health conference is the
initial step in the litigation process if the operator contests the proposed civil penalty.
Consequently, such conferences are not routinely conducted, but rather, they are conducted when
an operator challenges the initial citation. Accordingly, the reports of such conferences are
protected by the work product privilege.
Having concluded that health and safety conference reports are protected, the analysis
shifts to whether the respondents can overcome the privilege by demonstrating a substantial need
for the information, and establishing that it will suffer an undue hardship if it must attempt to
obtain the information by other means. It is difficult for the respondents to make such a showing
since officials of Performance Coal Company attended the safety conference. Consequently, the
respondents have failed to overcome the work product privilege. Thus, the motion to compel the
safety and health conference report shall be denied. Having determined the health and safety
conference report is protected by the work product privilege, I need not address the Secretary's
assertion that it is also protected by the deliberative process privilege.
D. The MSHA Proposed Assessment Worksheet
The Secretary contends the Proposed Assessment Worksheet is protected by the
deliberative process privilege. The Commission has defined the deliberative process privilege as
one which "attaches to inter- and intra-agency communications that are part of the deliberative
process preceding the adoption and promulgation of an agency policy." In re: Contests of
Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 992 (June 1992) [quoting
Jordan v. United States Dep 't ofJustice, 591 F.2d 753, 774 (D.C. Cir. 1978)]. The Proposed
Assessment Worksheet contains mental impressions and opinions concerning the degree of
gravity associated with the subject violation as well as the degree of culpability attributable to the
respondents. It contains recommendations concerning the appropriate civil penalties that should
be proposed. Consequently, the Proposed Assessment Worksheet is protected by the deliberative
process privilege.
E. Base Penalty Calculation for Special Assessment
The Base Penalty Calculation for Special Assessment is a computer generated form that
contains the special assessment penalty criteria relied upon by the Secretary as well as a history
of previous similar violations. This form contains data without any opinion or impressions of
MSHA personnel. It is apparently generated in the normal course of business to determine the
appropriate penalty to be assessed regardless of whether the citation is contested. As such, this
form is not protected by the deliberative process or work product privileges. Consequently, the

1353

respondents' motion to compel the Base Penalty Calculation for Special Assessment fonn shall
be granted.
Finally, the respondents' motion to compel all documents in MSHA's investigative file
not otherwise protected by privilege shall be denied because it is overly broad.
ORDER
Consistent with the above discussion, IT IS ORDERED that the respondents'
motion to compel with respect to the March 30, 1999, statement of Johnny R. Williams and the
Base Penalty Calculation for Special Assessment dated February 2, 1999, IS GRANTED.
IT IS FURTHER ORDERED that the Secretary provide the respondents with copies of
the Williams statement and the Base Penalty Calculation for Special Assessment within ten days
of the date of this Order.
IT IS FURTHER ORDERED that the respondents' motion to compel the
March 31, 1999, Jones memorandum of Lilly interview, the January 20, 1999, Health and
Safety Conference Report, the MSHA Proposed Assessment Worksheet, and all MSHA
investigative documents not otherwise protected by privilege IS DENIED.

Jerold Feldman
Administrative Law Judge
Distribution:
Mark Heath, Esq.~ Heenan, Althen & Roles, One Valley Square, Suite 1380,
P.O. Box 2549, Charleston, WV 25329 (Certified Mail)
Emily Goldberg-Kraft, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 516,
Ballston Towers #3, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
/mh

1354

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

November 14, 2000

SECRETARY OF L~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. YORK 2000-46-M
A. C. No. 30-03197-05505
Phillipsport Pit

METRO RECYCLING AND CRUSHING,
INC.,
Respondent
ORDER GRANTING MOTION TO AMEND PLEADINGS

This case is before me on a Petition for Assessment of Civil Penalty pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). It concerns one
citation and two orders arising out of a fatal mine accident. The Secretary has moved to amend
Citation No. 7716911 to allege alternative sections of the regulations. The Respondent opposes
the motion. For the reasons set forth below, the motion is granted.
Citation No. 7716911 charges a violation of section 56.14202 of the regulations, 3.0
C.F.R. § 56.14202, because:
A fatal mine accident occurred at this operation on March
18, l999, when the plant superintendent was caught in an
unguarded return roller on the discharge conveyor from the
portable screening plant. He was cleaning the roller while the
conveyor was running. Cleaning the roller while the belt was
running exhibited_a serious lack of reasonable care constituting
more than ordinary negligence and is an unwarrantable failure to
comply with a mandatory safety standard.

Section 56.14202 requires that: "Pulleys of conveyors shall not be cleaned manually while the
conveyor is in motion."
Stating that there "may be some legal and factual controversy" concerning the definition
of "pulley" in section 56.14202, the Secretary proposes to amend the citation to allege that the
conduct violates section 56.14202 or section 56.14105, 30 C.F.R. § 56. 14105. Section 56.14105
provides, in pertinent part, that: "Repairs or maintenance of machinery or equipment shall be
1355

performed only after the power is off, and the machinery or equipment blocked against hazardous
motion."
The company argues that allowing the Secretary to plead in the alternative would violate
the provisions of section 104(a) of the Act, 30 U.S.C. § 814(a), and would be unfair and
prejudicial. Neither of these arguments is persuasive.
Section 104(a) provides, in pertinent part, that: "Each citation shall be in writing and
shall describe with particularity the nature of the violation, including a reference to the provision
of the Act, standard, rule, regulation, or order alleged to have been violated." The Respondent
asserts that this requires that the Secretary identify the standard alleged to have been violated
with particularity. However, what has to be described with particularity is the nature of the
violation, not the standard. Under the proposed amendment, the description of the violation
would remain unchanged. Furthermore, even if the standard violated has to be described with
particularity, the proposed amendment accomplishes that purpose by referring to the two
standards alleged to have been violated. 1
Although there is no provision for amending citations in the Commission's Rules, the
Commission has held that the modification of a citation or order is analogous to an amendment
of pleadings under Fed. R. Civ. P. 15(a).2 Wyoming Fuel Co., 14 FMSHRC 1282, 1289 (August
1992); Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990). The Commission has further
noted that:
In Federal civil proceedings, leave for amendment "shall be
freely given when justice so requires." Fed. R. Civ. P. 15(a). The
weight of authority under Rule 15(a) is that amendments are to be
liberally granted unless the moving party has been guilty of bad
faith, has acted for the purpose of delay, or where the trial of the
issue will be unduly delayed. See 3 J. Moore, R. Freer, Moore's
Federal Practice, Par. 15.08[2], 15-47 to 15-49 (2d ed. 1991) ....
And, as explained in Cyprus Empire, legally recognizable

1

On the other hand, this provision of the Act would prohibit what the operator claims is
the logical result of permitting the Secretary to plead alternatively, that the Secretary "could just
allege a violation of 30 C.F.R.," because then there would be no reference to the standard alleged
to have been violated.
2

The Commission's Procedural Rules provide that on questions of procedure not
regulated by the Act, the Commission's Rules, or the Administrative Procedure Act, 5 U.S.C.
§ 551 et seq., the Commission and its Judges shall be guided by the Federal Rules of Civil
Procedure, "so far as practicable." 29 C.F.R. § 2700.l(b)

1356

prejudice to the operator would bar otherwise permissible
modification.

Wyoming Fuel, 14 FMSHRC at 1290.

In this case, there is no evidence that the Secretary is acting in bad faith or is seeking
amendment for the purpose of delay. Nor does it appear, and indeed there is no argument, that
the trial will be unduly delayed. It is scheduled to begin on December 19, 2000, and there does
not appear to be any reason why it will not begin on that date. The Respondent, however, argues
that it will be prejudiced by the modification because its ability to defend itself by demonstrating
that no violation of section 56.14202 occurred will be nullified.
In the first place, the fact that it may have a defense to a violation of section 56.14202,
but, perhaps, not to a violation of section 56.14105, does not demonstrate that the company will
be prejudiced by allowing the amendment. As the Commission has long recognized: ''The 1977
Mine Act imposes a duty upon operators to comply with all mandatory safety and health
standards. It does not permit an operator to shield itself from liability for a violation of a
mandatory standard simply because the operator violated a different, but related, mandatory
standard." El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (January 1981). Secondly, the
prejudice that would warrant denial of the modification of the citation is prejudice resulting from
delay, or if the amendment involves a new theory of violation or requires additional discovery.
See generally 3 James W. Moore et al., Moore's Federal Practice,§ 15.15(2], (3d ed.1997).
In this case, there is no indication or allegation that any of this type of prejudice would
occur. As noted above, there should be no delay. Nor does the amendment involve a new theory
of violation. The factual allegations remain the same. Whether a violation of section 56.14202
or of section 56.14105, the matter will be decided on the language, "[h]e was cleaning the roller
while the conveyor was running." In this regard, section 56.14202 is essentially an included
offense in section 56.14105. For this reason, no extensive, additional discovery should be
required. Thus, the Respondent has not demonstrated that it will be prejudiced by the
modification.
In addition, it is clear that the Secretary could have moved to amend the citation to allege
a violation of 56.14105 instead of section 56.14202 and, as discussed above, the company would
have no apparent valid objection to such an amendment. Furthermore, if the Government
proceeded to trial on the citation as alleged, it would appear that Fed. R. Civ. P. 15(b) would

1357

permit it to move to amend the citation to conform to the eviqence adduced at the trial. 3 Faith
Coal Co., 19 FMSHRC 1357, 1362 (August 1997).
Finally, Fed. R. Civ. P. 8(e)(2) specifically provides that: "A party may set forth two or
more statements of a claim or defense alternately or hypothetically, either in one count or defense
or in separate counts or defenses." Since the Federal Rules affirmatively permit alternative
pleadings, the Secretary has a good reason for pleading in the alternative and the Respondent has
not presented any valid reason why the modification should not be permitted, it is clear that the
citation may be amended as requested.
Accordingly, the Secretary's Motion to Amend Pleadings is GRANTED and it is
ORDERED that Citation No. 7716911 is MODIFIED to allege that the operator violated either
section 56.14202 or section 56.14105 of the regulations.

tfr~~

Administrative Law Judge
(703) 756-6213

3

Fe.d. R. Civ. P. 15(b) provides that:
When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judgment; but
failure so to amend does not affect the result of the trial of these
issues. If evidence is objected to at the trial on the ground that is
not within the issues made by the pleadings, the court may allow
the pleading to be amended and shall do so freely when the
presentation of the merits of the action will be subserved thereby
and the objecting party fails to satisfy the court that the admission
of such evidence would prejudice the party in maintaining the
party's action or defense upon the merits. The court may grant a
continuance to enable the objecting party to meet such evidence.
1358

Distribution: (Certified Mail)
Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Department of Labor, E-375, John F.
Kennedy Federal Building, Boston, MA 02203
Thomas C. Means, Esq., Crowell & Moring, LLP, 1101 Pennsylvania Avenue, N.W.,
Washington, D.C. 20004

Int

1359

1360